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EXHIBIT 10.52
SETTLEMENT AGREEMENT
This is an agreement ("Agreement") between the Sirit Parties (as
defined below) and the Able Parties (as defined below) dated as of this 7th day
of July 2000. The Sirit Parties and the Able Parties wish to resolve any and all
disputes between any and all of the Sirit Parties, on the one hand, and any and
all of the Able Parties, on the other hand, without further litigation, and, in
consideration of the mutual promises and covenants, payments, warranties,
releases, and agreements contained in this Agreement, and other good and
valuable consideration, the sufficiency of which is acknowledged, the Sirit
Parties and the Able Parties covenant and agree as follows:
I. DEFINITIONS.
The following terms used are defined as follows:
A. "Able" means Able Telcom Holding Corp. and its predecessors,
successors, acquirers and assigns, and each of their present, past, direct and
indirect subsidiary, parent, and affiliated entities, past and present
employees, agents, representatives, directors, employees, officers,
shareholders, partners, joint venturers, and any other persons acting or
purporting to act on behalf of Able Telcom Holding Corp., except legal counsel.
Notwithstanding the foregoing, "Able" does not include Thomas M. Davidson, Sr.
B. "Able Parties" means Able Telcom Holding Corp., Thomas M.
Davidson, Sr. ("Davidson"), MCI WorldCom, Inc., MFS Communications Company.,
Inc., WorldCom, Inc., Frederick Weidinger and their predecessors, successors,
acquirers and assigns, and each of their present, past, direct and indirect
subsidiary, parent, and affiliated entities, past and present employees, agents,
representatives, directors, employees, officers, shareholders, partners, joint
venturers, and all of said individuals' heirs, executors, administrators and
assigns and any other persons acting or purporting to act on behalf of the Able
Parties including but not limited to those individuals and entities listed on
Exhibit "A" to this Agreement, except legal counsel.
C. "Agreement" means this agreement.
D. The "Able Litigation" means Sirit Technologies, Inc. v. Able
Telcom Holding Corp. et al., U.S. District Court of the Southern District of
Florida, Case No. 98-1153-CIV-GOLD.
E. "Defendants" means Able Telcom Holding Corp. and Thomas M.
Davidson, Sr., and does not include any of the additional individuals or
entities included in the defined terms "The Able Parties" or "Able."
F. "Plaintiff" means Sirit Technologies, Inc. and does not
include any of the additional individuals or entities included in the defined
terms "The Sirit Parties" or "Sirit."
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G. "Series B" means the Series B Convertible Preferred Stock as
such shares remain and are described on pp. 16-18 of Able Telcom Holding Corp.'s
Form 10-Q filed with the SEC on or about June 19, 2000.
H. "Series C" means those 5,000 (Five Thousand) shares of Series
C Convertible Preferred Stock issued by Able on or about February 4, 2000.
I. "Signature Parties" shall mean Able Telcom Holding Corp.,
Thomas M. Davidson, Sirit Technologies, Inc., Jacob Gornitzki and GTL
Securities, Inc.
J. "Sirit" means Sirit Technologies, Inc. and its predecessors,
successors, acquirers and assigns, and each of their present, past, direct and
indirect subsidiary, parent, and affiliated entities, past and present
employees, agents, representatives, directors, employees, officers,
shareholders, partners, joint venturers, and any other persons acting or
purporting to act on behalf of Sirit Technologies, Inc., except legal counsel.
K. "Sirit Parties" means Sirit Technologies, Inc., Jacob
Gornitzki, GTL Securities, Inc. and their predecessors, successors, acquirers
and assigns, and each of their present, past, direct and indirect subsidiary,
parent, and affiliated entities, past and present employees, agents,
representatives, directors, employees, officers, shareholders, partners, joint
venturers, and all of said individuals' heirs, executors, administrators and
assigns and any other persons acting or purporting to act on behalf of the Sirit
Parties, including but not limited to those individuals and entities listed on
Exhibit "B" to this Agreement, except legal counsel.
L. The "Surviving Sections" are Sections IV, V, VI, VIII, IX, X,
XII, XIII, XIV, XV and XVI.
M. The "WorldCom Litigation" means Sirit Technologies, Inc. and
GTL Securities Inc. v. MCI WorldCom, Inc. et al, U.S. District Court for the
District of Nebraska, Case No. 8:00CV92, dismissed without prejudice on March
14, 2000.
II. SETTLEMENT TERMS
A. FUND TRANSFERS ON EXECUTION.
1. Davidson shall cause Sirit to be paid a nonrefundable payment
totaling $650,000 (Six Hundred and Fifty Thousand Dollars), as
consideration for Sirit's agreement to settle any and all
litigation matters between Sirit and Davidson and in consideration
of Sirit's execution of this Agreement with the releases contained
herein. Payment shall be by certified check or other good funds,
including wire transfer to counsel for Sirit by 12:00 Noon, July
__, 2000. Davidson agrees not to directly or indirectly seek
indemnification from Able (or Able's insurance carrier(s)) for
this $650,000 payment. Able agrees not to indemnify or cause the
indemnification of Davidson, directly or indirectly, for this
$650,000 payment. Except as otherwise provided herein, this
payment, and the release of Davidson, is final as of the execution
of this Agreement
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and under no circumstances shall Davidson be entitled to a return
of, or credit for, this $650,000 payment. Davidson represents that
this payment is not improper in light of any obligations or
liabilities that he may owe to the Internal Revenue Service or any
other secured creditor. In the event of an action for disgorgement
or otherwise to obtain all or part of the $650,000.00, Davidson
agrees to defend that action at his own cost and expense. In the
event such payment is finally determined to be improper, and such
final determination results in an order requiring Sirit to
disgorge or otherwise make a payment, and such payment is made by
Sirit, Davidson will have ten (10) business days to make Sirit
whole as to any actual amounts disgorged or paid plus interest
thereon, calculated at the annual rate of 10% compounded monthly,
and if he does not do so, Sirit may execute upon the Consent
Judgment described in Section III. Notwithstanding the foregoing,
Sirit agrees to execute and file a Notice of Satisfaction of the
Consent Judgment described in Section III with regard to Davidson,
upon the presentation to Sirit of written proof that the
outstanding obligations of Thomas Davidson to the IRS and any
other secured creditor (excluding any residential mortgage to the
extent it is secured by the residential property) as of the date
of this Agreement have been settled and satisfied.
2. Able shall cause Sirit to be paid a nonrefundable payment
totaling $5,000,000.00 (Five Million Dollars) as consideration
for Sirit's execution of this Agreement. Payment shall be by
certified check or other good funds, including wire transfer to
counsel for Sirit by 12:00 Noon, July __, 2000. This payment is
independent of, and unrelated to, any other consideration from
Able to Sirit provided for in this Agreement. This payment is
final as of execution of this Agreement and under no circumstances
shall Able be entitled to a return of or credit for this
$5,000,000.00 payment.
B. SECURITIES TO BE ISSUED
1. ISSUANCE OF STOCK. Able is to use its best efforts,
at its sole cost and expense, to obtain by November 30, 2000 (the
"Issue Date") any and all necessary corporate, regulatory and other
third party consents to issue and register sufficient common stock
equal to 4,074,597 (Four Million, Seventy Four Thousand, Five Hundred
Ninety Seven) shares (such shares, together with such other shares to
be issued to Sirit as set forth below in this Paragraph B.1 (and not
Paragraph B.2.), to be collectively referred to as the "Sirit Shares"),
being 19.99% of the outstanding shares of Able after the issuance of
these shares, based on 16,308,582 shares outstanding reported in Able's
Form 10-Q filed with the SEC on or about June 19, 2000.
In addition and subject to the above, Able will issue to Sirit
(or, in the alternative, at Sirit's direction, reserve for issuance)
upon conversion by the Series C holders an additional 936,914 (Nine
Hundred Thirty Six Thousand Nine Hundred and Fourteen) shares of common
stock (assuming the Series C shares have a $15 million face value and
are converted at a conversion price of $4/share), without payment of
any consideration by Sirit. If the foregoing assumptions are incorrect,
appropriate adjustments in the number of
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shares issued to Sirit will be made, so as to maintain Sirit as the
owner of 19.99% of Able's common stock, without payment of any
consideration by Sirit.
Moreover, to extent that the holders of Series B or Series C,
now have, pursuant to an existing document or agreement (including the
amendments attached as Exhibit C), and pursuant to the terms of Section
II, Paragraph B.2 below,
(i) An entitlement to additional shares and/or warrants,
including, without limitation, as a result of any
penalty, damage, default, conversion, put or other
right, then Sirit shall be entitled, without payment
of any consideration (unless additional consideration
is at that time paid to receive the shares from the
entitlement) to be issued (or alternatively, at
Sirit's direction to have reserved for issuance), at
such a time that such shares are issued to the
holders of Series B or Series C, on a simultaneous
basis, additional shares so that Sirit shall retain
its 19.99% ownership interest in Able, and/or
(ii) An entitlement to any moneys, including, without
limitation, as a result of any penalty, damage,
default, conversion, put or other right, then Sirit
shall (a) not be required to transfer, convey, assign
or return any of its Sirit Shares back to Able or any
other party and (b) be issued (or alternatively, at
Sirit's direction to have reserved for issuance), at
such a time that such shares are issued to the
holders of Series B or Series C, additional shares
without payment of any consideration by Sirit (unless
additional consideration is at that time paid to
receive the shares from the entitlement) in an amount
equal to the excess of such moneys over $15 million
divided by $4 per share; and/or
(iii) In the event any shares to which Sirit is entitled
pursuant to (i) or (ii) above would raise its
ownership of the outstanding common stock of Able
above 19.99%, Sirit shall have the right to such
shares, but such shares shall be issued to Sirit only
upon its written instructions.
Able is to use its best efforts, at its sole cost and expense,
to obtain by November 30, 2000 (the "Issue Date") any and all necessary
corporate, regulatory and other third party consents to issue and
register sufficient common stock equal to the sum of the shares to be
issued to Sirit pursuant to the preceding two paragraphs (a total of
5,011,511 shares of common stock).
Ninety-one days following the issuance and registration of the
Sirit Shares, and assuming that Able has met all conditions of Section
XI and XII (with the exception of the two-year period described
therein), and also assuming that no petition commencing a bankruptcy
case has been filed by or against Able, Sirit shall file a Notice of
Satisfaction of the Consent Judgment referred to in Section III with
the Court. If, regardless of Able's efforts, these shares are not
issued and registered (See Section II, Paragraph B.3 below)
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on or before November 30, 2000, Sirit may, upon five (5) business days
notice to Able, execute upon the Consent Judgment, pursuant to the
other terms and conditions of this Agreement, including those terms
contained in Sub-Paragraph 7 below.
2. ANTI-DILUTION. Sirit shall have the right to maintain
its then current percentage ownership of the outstanding shares of Able
common stock attributable to Sirit's ownership of the Sirit Shares on
the Issue Date.
Accordingly, if Able issues shares of common stock to any
third party except in the case of the Series B and/or C Conversion, in
which case no payment is due from Sirit, Sirit is entitled to receive
the appropriate number of shares of stock that will maintain its then
current percentage ownership of common shares originally attributable
to Sirit's ownership of the Sirit Shares, provided that Sirit pay the
same consideration paid to Able by the third party.
By way of example, if Sirit's current holdings of shares of
Able common stock attributable to Sirit's ownership of the Sirit Shares
on the Issue Date is 19.99%, and if an option holder exercises options
and buys 80 shares at $5.00 per share, then Sirit shall be given the
right to purchase 20 shares at $5.00 per share. The mere issuance of
options (or any other right to receive common shares) to a third party
does not permit Sirit to acquire additional shares, provided the
issuance of the options (or other rights to receive common shares) does
not entitle the recipient to voting rights. Only the exercise of such
options (or other rights to receive common shares) requires Able to
offer such shares to Sirit at the appropriate price. If Sirit's current
holdings of Able common stock attributable to Sirit's ownership of the
Sirit Shares on the Issue Date during the term of this agreement become
10%, for example, then if an option holder exercises options and buys
90 shares at $5.00 per share, Sirit shall be given the right to
purchase 10 shares at $5.00 per share.
Able shall provide Sirit 30 days written notice of the
issuance of common shares and/or exercise of the options (or any other
right to receive common shares)during which time Sirit shall have the
right to purchase pursuant to this Paragraph B.2. If Sirit chooses not
to exercise its right to purchase any or all such shares, resulting in
a reduction of the percentage of common shares of Able common stock
attributable to Sirit's ownership of the Sirit Shares on the Issue
Date, then the number of shares available to Sirit thereafter under
this Paragraph B.2 shall decrease to that resulting percentage. Only
the Sirit Shares, and shares obtained pursuant to Paragraphs B.1 and
B.2, shall be counted toward Sirit's percentage.
The provisions of this Paragraph B.2 expire two years after
the issuance of the Sirit Shares, and do not apply to any issuance of
shares under which Able shall receive value of $10.00 per share or
more. However, to the extent the issuance of shares at $10.00 per share
or more causes a reduction in Sirit's percentage attributable to
Sirit's ownership of the Sirit Shares on the Issue Date, that reduced
percentage ownership shall be used thereafter under the provisions of
this Paragraph B.2. All shares issued pursuant to this Paragraph B.2
shall be called the "Anti-Dilution Shares."
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3. REGISTRATION RIGHTS. Able will use its best efforts
to ensure that Sirit will have "piggyback" SEC registration rights for
the Sirit Shares with the holders of Series B and/or C Preferred
Shares. In particular, Able agrees to file an S1 by August 31, 2000 for
the Sirit Shares and to use its best efforts for such registration to
become effective by the same date that is required by the Series C
registration rights agreements as amended and attached hereto as
Exhibit "C" and under the same terms and conditions contained in those
documents. In the event that Sirit is entitled to Anti-Dilution Shares
during the two years following issuance of the Sirit Shares, Able will
undertake to make prompt regulatory filings in order to register the
additional shares.
4. SIRIT'S SECURITIES REPRESENTATIONS AND WARRANTIES.
Sirit represents and warrants that it is an "accredited investor," as
such term is defined in Regulation D promulgated by the Securities and
Exchange Commission under the Securities Act of 1933 and as evidenced
by the following
(a) Sirit was not formed for the purpose of investing in
the Sirit Shares;
(b) Sirit
(1) is (i) a bank, (ii) an insurance company,
(iii) an investment company registered under the Investment
Company Act of 1940, (iv) a business development company as
defined in the Investment Company Act of 1940, (v) a small
business investment company licensed by the Small Business
Administration, (vi) a private business development company as
defined in the Investment Advisors Act of 1940, or (vii) a
broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934.; or
(2) has assets in excess of $5,000,000 in value;
or
(3) all of the equity owners of Sirit are
Accredited Investors under the Act and Regulation D; or
(4) is a revocable trust which may be amended or
revoked at any time by the grantors. Each of the grantors
individually is an Accredited Investor under the Act and
Regulation D; or
(5) is an employee benefit plan trust under
Title I of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and either (i) the investment
decision with respect to this investment is being made by a
bank, insurance company or registered investment adviser as
the plan fiduciary, or (ii) the plan is self-directed and
investment decisions are made by persons who are Accredited
Investors under the Act and Regulation D.
(c) Sirit has the knowledge and experience in financial,
tax, and business matters required to enable it to utilize the information made
available to it in connection with the offering of
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the Shares, to evaluate the merits and risks of the prospective investment, and
to make an informed business decision with respect to it;
(d) Sirit's investment in the Sirit Shares is suitable
for the undersigned when viewed in the light of its other securities holdings
and needs;
(e) Sirit has adequate means of providing for its current
needs and contingencies and has no need for liquidity in its investment in the
Shares; and
(f) Sirit will notify Able immediately if any of these
representations become untrue prior to Sirit's acceptance of the Sirit Shares.
5. BOARD REPRESENTATION. Until such time as the Sirit
Shares are issued, one representative of Sirit shall receive notice of,
and shall have the right to attend and observe all Able board meetings
at Able's expense. After such time as the Sirit Shares are issued, Able
shall include one nominee of Sirit for election to the Board of
Directors to be confirmed in Able's annual shareholders meeting.
6. ABLE'S RELATED UNDERTAKINGS. Able, but not Davidson,
as a condition of this Agreement, within 20 business days of the
execution of this Agreement, will obtain and provide documentary
verification to Sirit of each of the following, among others (see
Section XI): (a) written agreements from MCI WorldCom, Gideon Taylor
and the holders of Series B and Series C to vote their common shares in
favor of the issuance of the Sirit Shares and any related matters to
this Settlement Agreement at the next Able annual shareholder meeting;
(b) withdrawal of the Supplemental Compensation arrangement (approved
by the Board of Directors on March 31, 2000) from the items to be
presented for approval at the next shareholders meeting of the Company;
(c) reservation of such amount of authorized but unissued common shares
in favor of Sirit to maintain Sirit's then current percentage ownership
as discussed in Section II, Paragraphs B.1 and B.2 above in Able upon
conversion of all Series C.
7. NATURE OF REMEDY PROVISIONS.
a. From the date of this Agreement, through and
including August 31, 2000, Able may cause Sirit to be paid $20
million in cash or equivalent funds, for any reason.
Ninety-one days following this payment, and assuming that Able
has met all of the obligations of Section XII (with the
exception of the two-year period described therein), and also
assuming that no petition commencing a bankruptcy case has
been filed by or against Able, then the $20 million payment
shall be deemed a discharge of every obligation of Able under
this Agreement except for those contained in the Surviving
Sections, and Sirit shall file the dismissal with prejudice of
the WorldCom Litigation pursuant to Section III and, a Notice
of Satisfaction of the Consent Judgment in the Able Litigation
pursuant to Section III. During that 91 day period, all
obligations of Able under this Agreement shall be held in
suspense.
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b. If, during the time from September 1, 2000,
through and including November 30, 2000 (the "Interim
Period"), Able enters into an agreement to merge into, be
acquired by, or otherwise transfer all or substantially all of
its assets to another entity (the "Entity") with which it is
not then affiliated (the "Triggering Transaction") then Able
shall provide a copy of this Agreement to the Entity and:
(1) Able shall provide written notice of
the Triggering Transaction to Sirit; and
(2) Thereafter, Sirit shall have ten
(10) business days from the notice (as defined in
Section XVI, below) to make an election between:
(a) participating in the
Triggering Transaction as described
below; or
(b) otherwise continuing with
its rights under this Agreement.
(3) If Sirit elects to participate in the
Triggering Transaction, then (subject to Sub-Paragraph 7.c
below), ninety-one days following this election, and assuming
that Able has met all of the obligations of Section XII (with
the exception of the two-year period described therein), and
also assuming that no petition commencing a bankruptcy case
has been filed by or against Able, then Sirit's election shall
be deemed a discharge of every obligation of Able under this
Agreement except for those contained in the Surviving
Sections, and Sirit shall file the dismissal with prejudice of
the WorldCom Litigation pursuant to Section III and, a Notice
of Satisfaction of the Consent Judgment in the Able Litigation
pursuant to Section III. During that 91 day period, all
obligations of Able under this Agreement shall be held in
suspense.
(4) Sirit shall participate in the Triggering
Transaction entered into during the Interim Period by
receiving the same consideration offered in the Triggering
Transaction as all other common shareholders, as if Sirit
owned its full entitlement to its Sirit Shares pursuant to
this Agreement of the outstanding common shares of Able in the
Triggering Transaction. However, under no circumstances will
the total amount to be paid to Sirit from a Triggering
Transaction entered into during the Interim Period exceed
$26.2 million (unless the Triggering Transaction occurs after
Sirit receives the Sirit Shares), not including the $5 million
inducement payment made pursuant to Section II.A.2 of this
Agreement. Further, if the consideration given to Sirit is in
the form of securities, those securities will be valued (for
the purpose of calculating the $26.2 million limit) at their
closing trading price on the date of the closing of the
Triggering Transaction.
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c. If, pursuant to Sub-Paragraph (2)(a) above, Sirit
elects to participate in the Triggering Transaction, and if the
Triggering Transaction does not close before December 1, 2000, then on
or before December 11, 2000, Sirit shall again elect between
participating in the Triggering Transaction as described above or
otherwise continuing with its rights under this Agreement. However, if
Sirit elects to participate in the Triggering Transaction under this
Sub-paragraph c, then such election is irrevocable, and ninety-one days
following this election, and assuming that Able has met all of the
obligations of Section XII (with the exception of the two-year period
described therein), and also assuming that no petition commencing a
bankruptcy case has been filed by or against Able, then this election
shall be deemed a discharge of every obligation of Able under this
Agreement except for those contained in the Surviving Sections, and
Sirit shall file the dismissal with prejudice of the WorldCom
Litigation pursuant to Section III and, a Notice of Satisfaction of the
Consent Judgment in the Able Litigation pursuant to Section III. During
that 91 day period, all obligations of Able under this Agreement shall
be held in suspense. If Sirit elects under this sub-Paragraph c to
continue with its rights under this Agreement, then all unperformed
obligations under this Agreement are reinstated except that any payment
obligation will be delayed for 30 days after Sirit's election.
d. The closing of any Triggering Transaction in which
Sirit has elected to participate, discharges every obligation of Able
under this Agreement except for those contained in the Surviving
Sections and requires Sirit to file the dismissal with prejudice of the
WorldCom Litigation pursuant to Section III.
III. RESOLUTION OF PROCEDURAL ISSUES.
Upon execution of this Agreement, Able, Sirit, Davidson and their
counsel will execute and file with the Court in the Able Litigation the attached
Notice of Settlement and Joint Motion to Enter Consent Judgment, which grants
judgment to Sirit and against Able in the amount of $20 million, and to Sirit
and against Davidson in the amount of $1.3 million. Once the Consent Judgment is
entered, Sirit must in every and any jurisdiction in which it has recorded the
May 16, 2000 judgment in the Able Litigation, take all steps required under the
law of those jurisdictions to remove or cancel from the public records any
indication that the May 16, 2000 judgment in the Able Litigation has any current
vitality, force or effect. Sirit may choose at its own option and expense to
record the new $20 million Consent Judgment, but in any event may not execute
upon it except as provided elsewhere in this Agreement. Further, and subject to
the provisions of Section II, Paragraph B.7, Sirit must provide Able five (5)
business days notice of any such intended execution so that Able may at its sole
option and for any reason cure the breach during the five business day cure
period or pay the Consent Judgment before execution is commenced.
Notwithstanding any other provision of this Agreement, any event that
gives Sirit the right to execute upon the $20 million Consent Judgment
(including the expiration of the 5-day period without cure or payment) shall
also give Sirit any right it then may have to reinstitute the WorldCom
Litigation. In such an event, the releases provided to Frederick W. Weidinger,
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WorldCom Inc., MCI WorldCom, Inc. and MFS Communications Company, Inc. (the
"WorldCom Parties") in Section IV become null and void only to the extent that
the Sirit Parties are permitted to refile the WorldCom Litigation subject to the
conditions set forth herein, and the releases provided by the WorldCom Parties
shall also become null and void only with respect to the subject matters raised
in or related to the WorldCom Litigation. The Sirit Parties agree that should
the WorldCom Litigation be reinstated pursuant to the terms of this paragraph,
then the WorldCom Litigation shall be the sole remedy of the Sirit Parties
against the WorldCom Parties with respect to the subject matters raised therein
and that the WorldCom Litigation shall be limited to the subject matters
contained in the legal claims and factual allegations set forth in the complaint
previously filed in the WorldCom Litigation, except as to events arising after
the date of this Agreement. However, until such time, and consistent with
Section IV, Sirit will refrain and forbear from commencing, instituting, or
prosecuting any lawsuit, action, claim, petition, motion or other judicial or
regulatory proceeding based on, arising out of, or connected with the WorldCom
Litigation or the subject matters raised therein. In the event that the $20
million Consent Judgment is satisfied either by the issuance and registration of
the Sirit Shares, or payment in full within 45 days, or otherwise pursuant to
the terms of Section II, Paragraph B.7, then all Sirit Parties who are
Plaintiffs in the WorldCom Litigation shall dismiss the WorldCom Litigation with
prejudice after ninety-one days have thereafter elapsed without the filing of a
petition by or against Able commencing a bankruptcy case. However, any statutes
of limitations applicable to the WorldCom Litigation (including those applicable
to claims that may be asserted against the Sirit Parties) are tolled from the
date of the full execution of this Agreement until the date of any event (not
cured or waived pursuant to Section IX) that gives Sirit the right to execute
upon the $20 million Consent Judgment. If a petition by or against Able
commencing a bankruptcy case is filed within this 91 day period and if a claim
is made that the satisfaction of the Consent Judgment is a preference or must
otherwise be disgorged or repaid, then the Sirit Parties will forbear from
commencing litigation against the WorldCom Parties unless and until the
satisfaction of the Consent Judgment is finally determined by the courts to be a
preference or otherwise required to be disgorged or repaid by Sirit; provided,
that during this period of forbearance any statutes of limitation applicable to
the WorldCom Litigation (including those applicable to claims that may be
asserted against the Sirit Parties) are tolled and extended. If, however, the
courts finally determine that the satisfaction of the Consent Judgment is not a
preference and need not be repaid or otherwise disgorged, then the Sirit Parties
who are Plaintiffs in the WorldCom Litigation shall dismiss the WorldCom
Litigation with prejudice within five (5) business days following the final
adjudication. Provided further that Sirit agrees to exchange unconditional
releases with WorldCom if, within 20 days of the execution of this Agreement,
WorldCom pays Sirit $10 million.
IV. MUTUAL GENERAL RELEASES AND COVENANTS NOT TO SUE.
Except as otherwise provided in this Agreement, the Sirit Parties
(collectively and individually) hereby GENERALLY AND UNCONDITIONALLY RELEASE,
acquit, and forever discharge the Able Parties (collectively and individually)
from any and all claims, demands, actions, indebtedness, agreements, promises,
causes of action, claims for attorneys' fees, costs, responsibilities,
obligations, expenses, covenants, damages, suits, judgments and liabilities of
any nature whatsoever, in law or in equity, whether or not known, suspected,
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claimed, developed or undeveloped, anticipated or unanticipated that the Sirit
Parties (collectively or individually) ever had, claimed to have, now have, or
may hereafter have or claim to have, based upon events that occurred through the
date of this Agreement, against each or any of the Able Parties, including but
not limited to, all claims arising out of, connected with, incidental to,
asserted in, or which could have been asserted in or are related to the Able
Litigation or the WorldCom Litigation, or otherwise arise out of any aspect
whatsoever of any relationship or dealing between any or all the Sirit Parties
and any or all the Able Parties. It is understood that this is a General
Release.
Except as otherwise provided in this Agreement, the Sirit Parties
(collectively and individually) hereby agree and covenant that the Sirit Parties
will forever refrain and forbear from commencing, instituting, or prosecuting
any lawsuit, action, claim, petition, motion or other judicial or regulatory
proceeding based on, arising out of, or connected with any of the released
claims referenced in the preceding paragraph.
Except as otherwise provided in this Agreement, the Able Parties
(collectively and individually) hereby GENERALLY AND UNCONDITIONALLY RELEASE,
acquit, and forever discharge the Sirit Parties (collectively and individually)
from any and all claims, demands, actions, indebtedness, agreements, promises,
causes of action, claims for attorneys' fees, costs, responsibilities,
obligations, expenses, covenants, damages, suits, judgments and liabilities of
any nature whatsoever, in law or in equity, whether or not known, suspected,
claimed, developed or undeveloped, anticipated or unanticipated that The Able
Parties (collectively or individually) ever had, claimed to have, now have, or
may hereafter have or claim to have, based upon events that occurred through the
date of this Agreement, against each or any of the Sirit Parties, including but
not limited to, all claims arising out of, connected with, incidental to,
asserted in, or which could have been asserted in or are related to the Able
Litigation or the WorldCom Litigation, or otherwise arise out of any aspect
whatsoever of any relationship or dealing between any or all of the Able Parties
and any or all of the Sirit Parties. It is understood that this is a General
Release.
The Able Parties (collectively and individually) hereby agree and
covenant that the Able Parties will forever refrain and forbear from commencing,
instituting, or prosecuting any lawsuit, action, claim, petition, motion or
other judicial or regulatory proceeding based on, arising out of, or connected
with any of the released claims referenced in the preceding paragraph.
V. COST OF LITIGATION AND ATTORNEYS' FEES.
The Sirit Parties and the Able Parties understand that they are each
responsible for their own attorneys' fees, costs and expenses arising out of the
Able Litigation and the WorldCom Litigation including the fees, costs and
expenses of their own expert witnesses.
VI. NO ASSIGNMENT.
The Sirit Parties and the Able Parties represent and warrant that as of
the date of the execution of this Agreement, they have not assigned or
transferred, or purported to assign or
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transfer, to any person, firm, corporation, association or entity whatsoever,
any released claim described in Section IV.
VII. NO ADMISSION OF LIABILITY.
This Agreement is a compromise of disputed claims and does not
constitute, nor shall it be construed, as an admission of liability on the part
of the Sirit Parties or the Able Parties as to any matters whatsoever. It is
understood and agreed that this settlement is the compromise of disputed claims
and that each party merely intends to avoid further litigation and buy its
peace.
VIII. INDEMNIFICATION.
Except as otherwise provided herein, in the event any Sirit Party or
Able Party institutes any action or proceeding against another Sirit Party or
Able Party with respect to any claim and/or action related to the matters raised
in the Able Litigation, or in the event any warranty contained in this Agreement
is breached, then the individual or entity asserting such claim and action or
breaching the warranty shall indemnify and hold harmless the individual or
entity against whom the claim is asserted or who claims the warranty is breached
with respect to any and all damages, loss, liability or expense of any nature
whatsoever, including attorneys' fees and expenses, which the party against whom
the claim is asserted or who claims the warranty is breached may incur or suffer
arising out of or resulting in any way from such action or breach; provided that
in no event shall Sirit have any obligation to indemnify or hold harmless Able
or any Able Party as a result of any action by any Sirit Party other than Sirit;
nor shall Able have any obligation to indemnify or hold harmless Sirit or any
Sirit Party as a result of any action by any Able Party other than Able.
IX. MODIFICATION, WAIVER AND NO PAROL REPRESENTATIONS OR AGREEMENTS.
This Agreement constitutes the entire Agreement between the Sirit
Parties and the Able Parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous oral and written agreements and
discussions. No provision of this Agreement may be changed, altered, modified,
or waived except in writing signed by all Signature Parties other than Davidson,
except as to matters directly impacting Davidson's rights, duties or obligations
under this Agreement. The Sirit Parties and the Able Parties acknowledge that no
representation, promise or inducement has been made with respect to the subject
matter hereof other than as specifically set forth in this Agreement, and that
none of them has entered into this Agreement in reliance upon any other
representation, promise or inducement with respect to the subject matter hereof
not set forth herein.
Any decision or agreement by any Signature Party to waive or not
enforce any conditions or obligations under this Agreement, or to extend any
time period under this Agreement, shall not act as a a waiver of any rights of
that Signature Party under this Agreement with respect to any condition or
obligation or with respect to any other breach of obligations under this
Agreement.
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X. REPRESENTATIONS AND WARRANTIES OF UNDERSTANDING.
All Signature Parties acknowledge and represent that they have read
this Agreement in full, have consulted with their attorneys, and understand and
voluntarily consent and agree to each and every provision contained herein. All
Signature Parties hereto have cooperated in the drafting and preparation of this
Agreement, which Agreement was custom-drafted to represent the unique needs of
the situation between these parties.
Sirit and Able represent and warrant that, among them, they have
authority to enter into this Agreement on behalf of all the Sirit Parties and
all the Able Parties respectively. Additionally, any Signature Party that is not
an individual represents and warrants that the individual signing on its behalf
has all necessary power and authority to do so.
Except as otherwise provided in this Agreement, Sirit and Able
represent and warrant that all claims, demands, actions, indebtedness,
agreements, promises, causes of action, claims for attorneys' fees, costs,
responsibilities, obligations, expenses, covenants, damages, suits, judgments
and liabilities of any nature whatsoever, in law or in equity, whether or not
known, suspected, claimed, developed or undeveloped, anticipated or
unanticipated that the Sirit Parties and/or the Able Parties (collectively or
individually) ever had, claimed to have, now have, or may hereafter have or
claim to have, based upon events that occurred through the date of this
Agreement, against each other, including but not limited to, all claims arising
out of, connected with, incidental to, asserted in, or which could have been
asserted in or are related to the Able Litigation or the WorldCom Litigation or
otherwise arise out any aspect whatsoever of any relationship or dealing between
any or all the Able Parties and any or all the Sirit Parties, have fully matured
before the Effective Date of this Agreement.
Sirit and Able represent and warrant that the descriptions by category
of the individuals and entities included in the definitions of "The Sirit
Parties" and "The Able Parties" are sufficient to describe those categories,
and, that the lists of the Sirit Parties and the Able Parties contained in
Exhibits A and B are merely exemplary and are non-exhaustive.
Sirit and Able each represent that, excluding legal fees paid to
counsel, no one has been paid, or is entitled to a payment of, a commission,
contingency fee, success fee or incentive for the procurement or execution of
this Agreement.
XI. CONDITIONS.
Except as otherwise provided herein, including in Section II, Paragraph
B.7, failure of Able to perform any of the following conditions permits Sirit to
execute upon the $20 million Consent Judgment against Able, pursuant to the
terms and conditions of this Agreement, but do not impact the rights of Davidson
or his release herein.
A. Within 20 business days after the execution of this Agreement,
Able will provide to Sirit an agreement between WorldCom and Able which will
provide for the following:
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1. WorldCom will agree to convert all of its holdings of current
debt into seven year term debt at an annual interest rate not to exceed 8%;
2. WorldCom will agree to extend the Master Services Agreement to
July 1, 2006 maintaining current annual minimum contract amounts;
3. WorldCom will use reasonable efforts to assist Able to raise
working capital and expects to provide new working capital up to a maximum
amount of $40,000,000;
4. WorldCom will agree to vote its common shares in favor of the
issuance of the Sirit Shares and any matters related to this Settlement
Agreement;
5. WorldCom will agree not to place Able in involuntary
bankruptcy from the date of this Agreement until (a) 91 days following the
issuance and registration of the Sirit Shares; or (b) for 91 days following the
date on which the Consent Judgment has been paid or satisfied in full, whichever
is later (but in no event later than May 31, 2001);
6. WorldCom will agree to the tolling of the statute of
limitations as described at the end of Section III.
B. PREFERRED SERIES B AND C CONDITIONS. Within 20 business days
after the execution of this Agreement, Able will provide to Sirit signed copies
of the agreements between the holders of Series B and Series C and Able, which
are attached as Exhibit C. Additionally, the holders of Series B and Series C
will agree not to place Able in involuntary bankruptcy from the date of this
Agreement until (a) 91 days following the issuance and registration of the Sirit
Shares; or (b) for 91 days following the date on which the Consent Judgment has
been paid or satisfied in full, whichever is later, (but in no event later than
May 31, 2001), to the extent they have such a right, and will agree to vote
their common shares in favor of the issuance of the Sirit Shares and any matters
related to this Settlement Agreement.
C. LENDER CONDITIONS. Within 20 business days after the execution
of this Agreement, Able will make its best efforts to provide to Sirit an
agreement between Bank of America and Able which will provide that Bank of
America will not place Able in involuntary bankruptcy from the date of this
Agreement until (a) 91 days following the issuance and registration of the Sirit
Shares; or (b) for 91 days following the date on which the Consent Judgment has
been paid or satisfied in full, whichever is later, (but in no event later than
May 31, 2001), to the extent it has such a right, upon the condition that Able
satisfies its obligations to Bank of America under its agreements with Bank of
America.
D. TAYLOR CONDITIONS. Within 20 business days after the execution
of this Agreement, Able shall provide to Sirit an agreement between Gideon
Taylor and Able
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which will provide that Taylor will agree to vote any common shares he may have
in favor of the issuance of the Sirit Shares and any matters related to this
Settlement Agreement.
E. All of the obligations contained in Section II.B, "Securities
to be Issued," regarding the Issuance of Stock, Anti-Dilution, Board
Representation, Registration Rights, Able's Related Undertakings and Nature of
Remedy Provisions are also, without changing the meaning or scope of those
obligations, to be treated as conditions under this Section XI.
XII. INSOLVENCY PROVISIONS.
Able represents that it does not have any present intention to file a
voluntary bankruptcy case during the two-year period following the date of the
entry of the Consent Judgment described in Section III above and that it will
not file such a case before the end of that two-year period. In the event a
petition commencing a bankruptcy case is filed by or against Able, and Sirit is
required to return the cash or the securities transferred in settlement of the
litigation, then, in such event, Sirit shall have in Able's bankruptcy case an
allowed claim of $31.2 million, plus the cost and expenses incurred by Sirit in
recording or removing the judgment entered on May 16, 2000 from the public
record and the Consent Judgment as described in Section III above, and the
reasonable attorneys fees incurred by Sirit in connection therewith.
XIII. DISCLOSURE.
Sirit and Able agree not to make any disclosure of this agreement
unless such disclosure is in a form acceptable to Sirit and Able acting
reasonably. Notwithstanding the foregoing, the Able and Sirit Parties
acknowledge that each is a public company and, in certain circumstances, may be
required to make disclosure as required by securities laws or regulations or as
otherwise may be required by law or court order.
XIV. VENUE, JURISDICTION AND GOVERNING LAW.
The sole jurisdiction and venue for any litigation arising from or
related to this Agreement shall be in the United States District Court for the
Southern District of Florida, and all Signature Parties agree to submit to
jurisdiction of and venue in such court for purposes of such litigation only and
all parties agree that the court that conducted the Able Litigation, and which
is being asked to approve the Consent Judgment, shall retain jurisdiction over
this Agreement. This Agreement shall be performed, construed and governed by the
laws of the State of Florida, without regard to Florida's choice of law
principles.
XV. OUTSTANDING COMMERCIAL TRANSACTIONS.
Sirit and Able acknowledge that, independent of this Agreement and the
Able Litigation, they have a commercial relationship in which Sirit sells
transponders to a subsidiary of Able. Nothing in this Agreement, including the
provisions of Section IV, shall release any claim
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arising out of that commercial relationship, including but not limited to
outstanding issues and amounts arising out invoice numbers 10291, 10295-99,
10300, 10303-04, 10306-08, 10317-20, 10322-24, 10326 and 10330 under which Sirit
contends that the outstanding total amount is $201,178.89.
XVI. NOTICES.
Any notice required by the terms of this Agreement shall be effective
upon receipt, which shall be presumed one business day after delivery by
overnight delivery service, or three business days after delivery by U.S. Mail,
postage pre-paid and addressed as follows:
To Able:
Billy V. Ray, Jr.
Chief Executive Officer
Able Telcom Holding Corp.
1000 Holcomb Woods Pkwy
Suite 440
Roswell, GA 30076
(770) 993-1570 (Phone)
(770) 993-8532 (Fax)
With a copy to:
J. Allen Maines, Esq.
Paul Hastings Janofsky & Walker, LLP
600 Peachtree Street
Suite 2400
Atlanta, Georgia 30308
(404) 815-2400 (Phone)
(404) 815-2424 (Fax)
To Davidson:
Thomas M. Davidson, Sr.
10509 MacArthur Blvd.
Potomac, Maryland, 20854
With a copy to:
Edward F. Schiff, Esq.
Schnader, Harrison, Segal & Lewis, LLP
1300 I Street, N.W.
11th Floor, East
Washington, D.C. 20005
(202) 216-4208 (Phone)
(202) 775-8741 (Fax)
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To Sirit, Gornitzki and GTL
Jacob Gornitzki
Sirit Technologies, Inc.
200 King Street West
Suite 2004
Toronto, Ontario, Canada
M5H 3T4
(416) 597-1100 (Phone)
(416) 597-2818 (Facsimile)
With a copy to:
N. Richard Janis
Janis, Schuelke & Wechsler
1728 Massachusetts Avenue, N.W.
Washington, D.C. 20036
(202) 861-0600 (Phone)
(202) 223-7230 (Facsimile)
XVII. COUNTERPARTS.
This Agreement may be executed in counterparts, and each counterpart
shall be and constitute a part of this Agreement and all counterparts taken
together shall constitute the Agreement, and be binding and effective upon all
parties hereto.
IN WITNESS THEREOF, the Sirit Parties and the Able Parties have caused
this Agreement to be executed by each of them or their duly authorized
representatives on the dates hereinafter subscribed.
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Pursuant to 28 U.S.C. ss.1746 and ss.92.525, Fla. Stat., I declare
under penalty of perjury under the laws of the United States of America and the
State of Florida that I have read the foregoing Agreement and that the
representations and provisions in it are true and correct.
SIRIT TECHNOLOGIES, INC.
By:
-------------------------------
Its:
-------------------------------
Executed this ___ day of July, 2000
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Pursuant to 28 U.S.C. ss.1746 and ss.92.525, Fla. Stat., I declare
under penalty of perjury under the laws of the United States of America and the
State of Florida that I have read the foregoing Agreement and that the
representations and provisions in it are true and correct.
GTL SECURITIES, INC.
By:
-------------------------------
Its:
-------------------------------
Executed this ___ day of July, 2000
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Pursuant to 28 U.S.C. ss.1746 and ss.92.525, Fla. Stat., I declare
under penalty of perjury under the laws of the United States of America and the
State of Florida that I have read the foregoing Agreement and that the
representations and provisions in it are true and correct.
JACOB GORNITZKI
- ------------------------------
Individually
Executed this ___ day of July, 2000
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Pursuant to 28 U.S.C. ss.1746 and ss.92.525, Fla. Stat., I declare
under penalty of perjury under the laws of the United States of America and the
State of Florida that I have read the foregoing Agreement and that the
representations and provisions in it are true and correct.
ABLE TELCOM HOLDING CORP.
By:
-------------------------------
Its:
-------------------------------
Executed this ___ day of July, 2000
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Pursuant to 28 U.S.C. ss.1746 and ss.92.525, Fla. Stat., I declare
under penalty of perjury under the laws of the United States of America and the
State of Florida that I have read the foregoing Agreement and that the
representations and provisions in it are true and correct.
THOMAS M. DAVIDSON
- ------------------------------
Executed this ___ day of July, 2000
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EXHIBIT A
Non-Exhaustive Listing of The Able Parties
Able ICP, Inc.
Able Telcom CA
Able Telcom Do Brasil LTDA
Able Telcom Holding Corp.
Able Telecommunications & Power, Inc.
Able Wireless, Inc.
Adesta Communications, Inc. f/k/a MFS Network Technologies, Inc.
Adesta Transportation, Inc. f/k/a MFS Transportation Services, Inc.
Michael Arp
Mark Berner
Richard A. Boyle
James E. Brands
Michael Brenner
Carroll Capital Group
G. Vance Cartee
Thomas M. Davidson
Davidson Capital Group LLC
Davidson Technology Investment Group LLC
Frazier L. Gaines
Garrison Capital Group
Georgia Electric Company
J. Barry Hall
Edwin Johnson
Stacey Jenkins
Marshall Capital Group
MCI WorldCom, Inc.
Alec McLarty
MFS Acquisition Company
MFS Communications Company, Inc.
Patton Management Corp.
Edward Z. Pollock
Gerald Pye
Southern Aluminum and Steel Corp.
Specialty Electronic Systems, Inc.
Michael A. Summers
Gideon Taylor
Transportation Safety Contractors, Inc.
TransTech, Inc., f/k/a MFS Transtech, Inc.
Billy V. Ray Jr.
C. Frank Swartz
Frederick Weidinger
WorldCom, Inc.
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EXHIBIT B
Non-Exhaustive Listing of The Sirit Parties
Michael Briand
Jacob Gornitzki
Gornitzki, Thompson & Little
GTL Investments Corporation
GTL Trading Limited
GTL Services Ltd.
GTL Securities, Inc.
Otto Jelinek
Ralph Lean
Kevin Moersch
Sirit Technologies, Inc.
Kenneth Smith
Fred Veinot
1