IN THE CIRCUIT COURT FOR THE COUNTY OF FAIRFAX
COMDIAL CORPORATION )
and )
Array Telecom Corporation )
)
Petitioners )
)
v. )At Law No. 207308
)
ePhone Telecom, Inc., )American Arbitration
)Association
)Case No. 16 Y 181 00542 01
Respondent. )
SETTLEMENT AGREEMENT
This Settlement Agreement is made and entered into as of the 13th day
of November, 2002, by and between COMDIAL CORPORATION and ARRAY TELECOM
CORPORATION on the one hand (collectively "Comdial") and EPHONE TELECOM, INC.
("ePhone") for the purpose of settling and resolving the dispute resulting in
the Award by the American Arbitration Association in the matter of Comdial
Corporation and Array Telecom Corporation v. ePhone Telecom, Inc., Case No. 16 Y
181 00542 01, which award has been confirmed by order of the Circuit Court of
Fairfax in the matter of Comdial Corporation and Array Telecom Corporation v.
ePhone Telecom, Inc., At Law No. 207308 (November 1, 2002).
In consideration of the prompt and timely payment of the sum of
$1,600,000.00 to be paid by ePhone to Comdial in two installments, the first of
$1,000,000.00 to be paid on or before November 13, 2002, and $600,000 to be paid
on or before November 20, 2002, Comdial agrees to accept the forgoing payment
totaling $1,600,000.00 in full and complete satisfaction of the Award and Final
Decree entered in the above styled Arbitration and action to confirm the
arbitration award. Upon ePhone's receipt of this document executed by Comdial,
ePhone shall arrange to wire $1 million to Comdial's bank account.
Time is of the essence to this agreement by Comdial, and failure of
ePhone to make prompt and timely payment of the sums called for by this
agreement will render Comdial's agreement, and the release executed by Comdial
herewith, null and void. In the event ePhone fails to make timely payment of the
amounts called for in this agreement, Comdial shall be entitled to proceed to
collect from ePhone the full amount due pursuant to the Arbitration Award and
Final Decree, including all costs and reasonable attorneys fees as provided in
the Arbitration Agreement, less any amounts that ePhone has paid pursuant to
this agreement.
Comdial shall execute a Satisfaction and Release of Award in favor of
ePhone in the form attached hereto as Exhibit A, which release shall be
delivered to Gersten, Savage, Kaplowitz, Wolf & Marcus, LLP, to be held in
escrow pending the full and timely payment of all amounts by ePhone contemplated
by this agreement.
As a further inducement to Comdial to enter into this agreement, ePhone
shall execute and deliver to Comdial, a Satisfaction and Release of Award in
favor of Comdial in the form attached hereto as Exhibit B.
This Settlement Agreement may be executed by counterparts and by
signatures transmitted by telecopier. The facsimile signatures shall be of the
same effect as the originals.
Each individual executing this Agreement represents and warrants that
he has the authority to execute this Agreement for the entity for which he
purports to sign and that this Agreement is binding upon that party.
This Agreement shall be governed and construed in accordance with the
laws of the Commonwealth of Virginia.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed, under seal, by a duly authorized representative thereof as of the day
and year set forth above.
EPHONE TELECOM, INC (SEAL)
By: /s/ Carmine Taglialatela, Jr.
-----------------------------
Carmine Taglialatela, Jr.
Date: November 13, 2002 Title: President & CEO
COMDIAL CORPORATION (SEAL)
By: /s/ Nick Branica
--------------------
Nick Branica
Date: November 13, 2002 Title: President & CEO
ARRAY TELECOM CORPORATION (SEAL)
By: /s/ Nick Branica
-------------------------
Nick Branica
Date: November 13, 2002 Title: President & CEO