EXHIBIT 10.13
EXECUTION COPY
CALL OPTION DEED
THIS DEED made this 30th day of September, 1999 is by and among (1)
Infonet Services Corporation, a Delaware Corporation ("ISC"), (2) Unisource Pan-
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European Services B.V., a company organized under the laws of The Netherlands
("Unisource Sub"), (3) Briap B.V., a company organized under the laws of The
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Netherlands ("Unisource Nominee"), (4) Unisource N.V., a company organized under
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the laws of The Netherlands, ("Unisource") and the stockholder of Unisource Sub,
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(5) Telia AB, a company organized under the laws of Sweden ("Telia"), KPN
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Telecom B.V., a company organized under the laws of The Netherlands ("KPN"), and
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Swisscom AG, a company organized under the laws of Switzerland ("Swisscom" and,
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together with Telia and KPN, the "Unisource Stockholders"), (6) AUCS
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Communications Services N.V., a public company organized under the laws of The
Netherlands ("AUCS N.V."), and (7) AUCS Communications Services v.o.f., a
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general partnership under the laws of The Netherlands ("AUCS v.o.f.") and herein
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represented by AUCS N.V. (each a "Party" and collectively the "Parties")
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WHEREAS, Unisource Sub and Unisource Nominee are the sole holders of
the entire issued share capital of AUCS N.V;
WHEREAS, Unisource Sub, Unisource Nominee and AUCS N.V. are the
partners of AUCS v.o.f.; and
WHEREAS, ISC and the Unisource Entities desire to provide for a
potential acquisition of assets of AUCS N.V., AUCS v.o.f. and/or any Subsidiary.
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1 Certain Definitions. In this Deed, the capitalized terms
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defined in Schedule 1.1 hereto shall have the meanings set forth or referred to
therein.
ARTICLE II.
CALL OPTION
Section 2.1 Call Option. In consideration of the payment of one Euro
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to each of AUCS N.V. and AUCS v.o.f. (the "AUCS Entities") and other good and
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valuable consideration, receipt of which is hereby acknowledged, each of the
AUCS Entities hereby grants to ISC the exclusive right (but not the obligation)
to purchase with full title guarantee, at its sole option (the "Call Option")
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during the Option Period all or any material part of the Assets at the Call
Price (as defined in Section 2.3), free of Encumbrances, from the AUCS Entities
or the relevant Subsidiary which owns such Assets.
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Section 2.2 Term of Call Option. The time period (the "Option
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Period") during which ISC may exercise the Call Option shall commence on the day
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following the Commencement Date and shall end at 5.00 pm London time on the
third anniversary of the Commencement Date; provided, however, that the Option
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Period shall end on the date of termination of the Management Agreement if
earlier; and provided, further, that if ISC has provided a Valuation Notice in
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accordance with Section 2.5 below with respect to a Valuation Date falling
within the Option Period, then ISC shall be entitled to exercise the Call Option
in accordance with Section 2.6(a) below with respect to the Written
Determination delivered pursuant to such Valuation Notice, whether or not the
date of such exercise occurs subsequent to the Option Period. If ISC has not
exercised the Call Option within the Option Period (or subsequent to the Option
Period to the extent set forth in the proviso above), the Call Option will
expire on the third anniversary of the Commencement Date without any further
action by the parties and be of no further force and effect. The Call Option may
be exercised no more than once in a calendar year by ISC during the Option
Period.
Section 2.3 Call Price. The Call Price shall be exclusive of VAT if
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payable and shall be equal to the Fair Market Value (as determined pursuant to
the provisions of Section 2.4 below) of the Assets on the Valuation Date (such
Call Price not to exceed Euro 123,246,000 (one hundred and twenty three million,
two hundred and forty six thousand Euro)).
Section 2.4 Fair Market Value. In order to determine from time to
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time the Fair Market Value of the Assets which are listed in a Valuation Notice
for purposes of permitting ISC to determine whether to exercise the Call Option,
upon receipt of a Valuation Notice, ISC and Unisource (on behalf of itself,
Unisource Nominee, the Unisource Stockholders or the AUCS Entities and
Subsidiaries (as applicable)) shall use their reasonable best efforts to
mutually agree on the Fair Market Value of the Assets, determined as provided in
Section 2.4(b), as of the Valuation Date. A Valuation Notice may only be served
up to two times in any calendar year. In the event they are unable to agree the
Fair Market Value of the Assets within ten business days of the date of the
Valuation Notice (the "Consultation Period"), then the Fair Market Value of the
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Assets shall be determined by appraisal pursuant to this Section 2.4, as
follows:
(a) The Fair Market Value of the Assets shall be determined for the
relevant Valuation Date by an appraiser mutually acceptable to ISC and
Unisource. If ISC and Unisource are unable to agree on an appraiser within ten
business days following expiration of the Consultation Period, the appraiser
shall be selected by the President for the time being of the Institute of
Chartered Accountants of England and Wales upon application by ISC or Unisource
whose choice of appraiser shall be binding upon the parties. The appraiser shall
conduct an appraisal under Section 2.4(b) and determine the Fair Market Value of
the Assets, which shall be final and binding on the parties to this Deed.
Unisource and ISC will equally share in the payment of the fees and expenses of
any appraiser named pursuant to this Section 2.4(a), unless otherwise determined
by the appraiser or the Arbitrators appointed under Section 9.2.
(b) The Fair Market Value of the Assets as of the Valuation Date
shall be determined on the day before the Valuation Date and after giving due
regard to the principles set forth in Schedule 2.4(b) and any other factors the
appraiser deems relevant, using accepted
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valuation practices. In determining the Fair Market Value of the Assets, the
appraiser appointed under this Deed shall set forth its determination in writing
together with its opinions and the consideration upon which the opinions are
based (a "Written Determination"), with a signed counterpart to be delivered to
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each of ISC and Unisource within thirty days of commencing appraisal. Unisource
Sub, Unisource Nominee, the AUCS Entities and Subsidiaries shall provide access
to the appraiser to all of their records, except as restricted by law, and to
their employees, in order to enable the appraiser to make its determination.
(c) Any appraiser selected pursuant to Section 2.4(a) shall be an
investment bank of recognized international standing with respect to the
valuation of assets similar in nature to the Assets.
Section 2.5 Valuation Notice. At any time no less than thirty days
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and no more than sixty days prior to a Valuation Date ISC shall be entitled to
give notice (the "Valuation Notice") to Unisource requiring that the Fair Market
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Value of the Assets identified in the Valuation Notice be determined as of such
Valuation Date. The term "Valuation Date" shall mean a date within the Option
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Period. For purposes of determining the Call Price, a determination of Fair
Market Value of the Assets, pursuant to Section 2.4 shall be binding if ISC
exercises the Call Option within thirty business days after receipt by ISC and
Unisource of the Written Determination required in Section 2.4 (or thirty
business days after ISC and Unisource mutually agree upon the Fair Market Value,
if applicable).
Section 2.6 Exercise of Call Option.
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(a) The Call Option may be exercised during the Option Period (or
subsequent to the Option Period to the extent set forth in the proviso of
section 2.2) at any time within thirty business days after receipt by ISC of the
Written Determination required in Section 2.4 (or thirty business days after ISC
and Unisource mutually agree upon the Fair Market Value, if applicable) by ISC
delivering a written notice of exercise ("Exercise Notice") to Unisource
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specifying the date, which date shall be at least five days after the
date of the Exercise Notice but no later than 75 days after such date, upon
which ISC shall acquire the Assets (the "Option Commencement Date"); provided,
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however, that the Option Commencement Date may be extended by ISC as reasonably
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necessary in order to obtain any requisite governmental approvals, and if the
Option Commencement Date is so extended, the Option Commencement Date shall be
thirty (30) business days following receipt of such requisite governmental
approvals. Such exercise of the Call Option may be subject to the conditions set
forth in Section 2.6(b) below. If the Assets are not purchased because any of
the conditions in Section 2.6(b) are not met, the right to exercise the Call
Option at a future date in respect of the Assets will not be lost, assuming ISC
could otherwise give a Valuation Notice in such future period or periods.
(b) The completion of ISC's acquisition of the Assets pursuant to the
exercise of the Call Option shall take place at the London office of ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ (or such other place in London or in Amsterdam as is specified by ISC)
at 10:00 a.m. local time on the Option Commencement Date. ISC shall deliver to
Unisource (on behalf of AUCS N.V., AUCS v.o.f. and any Subsidiary which is
selling Assets in respect of which the Call Option is being
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exercised) the Call Price payable in Immediately Available Funds and the AUCS
Entities shall deliver or cause delivery to ISC of physical possession of all
the Assets capable of passing by delivery with the intent that title in such
Assets shall pass by and upon such delivery and take such other actions as are
necessary to transfer ownership of the Assets to ISC. The Assets shall be
conveyed to ISC free and clear of all Encumbrances and with full title
guarantee.
Unless waived by ISC, in its discretion, it shall be a condition to ISC's
obligation to purchase the Assets at such completion that customary
representations and warranties will be given by the Unisource Entities as of the
Option Commencement Date. It shall be a condition to the obligation of the
Unisource Entities to consummate the sale of the Assets that all necessary
consents, approvals and authorizations of third parties and governmental
agencies required to be obtained with respect to the acquisition of the Assets
(including compliance with all necessary requirements under competition law)
shall have been obtained as of the Option Commencement Date; provided that each
of the Unisource Entities, the AUCS Entities and ISC shall take whatever steps
are reasonably necessary to obtain such consents, approvals and authorizations
to permit the legal transfer of the Assets to ISC and to ensure that ISC's
consummation of the purchase of the Assets will not create an event of default
under any of the Unisource Entities' or AUCS Entities' credit agreements or give
rise to an acceleration or requirement to make a change of control offer with
respect to any indebtedness of the Unisource Entities' or AUCS Entities;
provided that ISC shall not be obligated to dispose of any assets to obtain any
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such consent, authorization or approval. Each Party shall bear on its own
expenses incurred in connection with obtaining such consents, approvals and
authorizations. Receipt by Unisource of the Call Price shall be full discharge
of all obligations of ISC to Unisource, the AUCS Entities or any Subsidiary to
pay for the Assets provided that ISC may direct that any or all of the Assets
acquired pursuant to this Deed shall be conveyed to any Affiliate. Upon
purchase of the Assets ISC shall assume the related contractual obligations in
respect of such Assets incurred from and after the Option Commencement Date but
only to the extent disclosed by Unisource to ISC at the time of such transfer.
Section 2.7 Exclusive Call Option. This Call Option grants ISC the
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sole right during the Option Period to acquire the Assets. ISC shall not
exercise the Option in respect of all or any material part of the Assets if such
exercise will leave the AUCS Entities unable to perform in all material respects
their obligations under any agreement between AUCS and any third party unless
reasonably satisfactory arrangements were put in place by the Parties to enable
AUCS Entities to fulfill such contractual objectives.
ARTICLE III.
TAXES
Section 3.1 General. The Party responsible under applicable law will
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pay documentary and transfer taxes, sales, use or other taxes for fees imposed
as a result of the execution or delivery of this Deed or the consummation of the
transactions contemplated hereby including all stamp duty, VAT and other taxes,
and notaries' fees.
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Section 3.2 VAT. In the event that any tax authorities determine
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that VAT is chargeable in respect of the sale of Assets pursuant to this Call
Option Deed, Unisource shall deliver a valid VAT invoice therefor to ISC.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Unisource Entities.
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Each of the Unisource Entities represents and warrants that as at the date of
this Agreement:
(a) each Unisource Entity is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, and is in good standing in each jurisdiction where the failure to
be in good standing would have a material adverse effect on its ability to
perform its obligations under this Deed;
(b) AUCS N.V. and each Subsidiary is a corporation duly incorporated,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, and is in good standing in each jurisdiction where the failure to
be in good standing would have a material adverse effect on its ability to
perform its obligations under this Deed;
(c) AUCS v.o.f. is a partnership duly formed, validly existing and in
good standing under Dutch law, and is in good standing in each jurisdiction
where the failure to be in good standing would have a material adverse effect on
its ability to perform its obligations under this Deed;
(d) it and each AUCS Entity has all necessary corporate or
partnership power and authority to enter into this Deed and to perform its
obligations hereunder, and the execution and delivery of this Deed and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate or partnership action on its and each AUCS Entity's
part;
(e) this Deed constitutes the legal, valid and binding obligation of
it and each AUCS Entity, enforceable against it and each AUCS Entity by ISC in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally and except to the extent that enforceability is subject to the
application of equitable principles or remedies;
(f) neither it, nor any AUCS Entity nor any Subsidiary, is a party
to, or is bound or affected by or subject to, any instrument, agreement, charter
or by-law provision, law, rule, regulation, judgment or order which would be
contravened or breached as a result of the execution of this Deed and the grant
of the Call Option;
(g) except for the matters set forth in Schedule 4.1(g), no consent,
approval or authorization of, or declaration or filing with, any governmental or
regulatory authority, or any other person or entity, is required to be made or
obtained by it, any AUCS Entity or any
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Subsidiary that has not been made or obtained in connection with the execution
and delivery of this Deed and the grant of the Call Option;
(h) neither it, nor any AUCS Entity, nor any Subsidiary, has employed
or made any agreement with any broker, finder or similar agent or any person or
firm which will, as a result of the transactions contemplated hereby, obligate
it, any AUCS Entity or any Subsidiary to pay any finder's fee, brokerage fees,
commission or similar payment in connection with the transactions contemplated
hereby;
(i) the AUCS Entities or one or more of the Subsidiaries have good
and marketable title to, and have in their possession and under their control,
all of the Assets;
(j) (i) no order has been made or petition presented, meeting
convened or resolution passed for the winding up of any of the Unisource
Entities, any AUCS Entities or any of the Subsidiaries nor has any receiver been
appointed or any distress, execution, or other process been levied in respect of
the Assets or any of them; and
(ii) no composition in satisfaction of the debts of any of the
Unisource Entities, any AUCS Entities or any of the Subsidiaries or scheme of
arrangement of its affairs or compromise or arrangement between it and either or
both of its creditors or members or any class of either or both of its creditors
or members has been proposed, sanctioned or approved.
Section 4.2 Representations of ISC. ISC represents and warrants
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that:
(a) it is a company duly incorporated and validly existing under the
laws of Delaware;
(b) it has all necessary corporate power and authority to enter into
this Deed and to perform its obligations hereunder, and the execution and
delivery of this Deed and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on its part;
and
(c) This Deed constitutes the legal, valid and binding obligation of
ISC, enforceable against it in accordance with its terms
ARTICLE V.
FURTHER ACTIONS
Section 5.1 No Action Required. The exercise of the Call Option
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granted hereby is in the sole and exclusive discretion of ISC, and ISC shall be
under no obligation to exercise this Call Option. ISC shall not be liable for
any loss or damage suffered by the Unisource Entities, the AUCS Entities, the
Subsidiaries, or any third party arising from the non-exercise of the Call
Option.
Section 5.2 No Shop. None of the Unisource Entities or the AUCS
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Entities and they severally shall make reasonable efforts to cause their
respective officers, directors,
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stockholders or other representatives not to, directly or indirectly, encourage,
solicit, initiate or participate in discussions or negotiations with, or provide
any information or assistance to, any person or group (other than ISC and its
representatives) concerning any merger, sale of securities, sale of substantial
Assets or similar transaction involving the AUCS Entities. In the event that any
Unisource Entity or any AUCS Entity receives a proposal relating to any such
transaction, the Unisource Entity or the AUCS Entity, as the case may be, shall
promptly notify ISC of all terms of such proposal.
Section 5.3 Further Assurance. The Unisource Entities and the AUCS
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Entities shall use all reasonable endeavors to do or procure to be done all such
further acts and things and execute or procure the execution of all such other
documents as ISC may from time to time reasonably require for the purpose of
giving ISC the full benefit of the provisions of this Deed.
Section 5.4 Power of Attorney. Each of the AUCS Entities hereby
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irrevocably appoints ISC as its attorney to sign, execute and deliver on its
behalf all deeds and documents and to do all acts and things necessary to give
effect to the terms of this Deed.
Section 5.5 No Frustrating Action. From the date of this Deed, the
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end of the Option Period or the Option Commencement Date (whichever is later to
occur) no Unisource Entity shall, directly or indirectly, take any action which
might cause any of the representations and warranties set forth in Section 4.1
to become untrue as of the Option Commencement Date.
ARTICLE VI.
THE UNISOURCE ENTITIES
Section 6.1 The Unisource Entities shall (in so far as they are able)
cause the AUCS Entities and Subsidiaries to comply with this Deed in all
respects and to perform promptly all of their obligations under this Deed and
the consummation of the transactions contemplated hereby.
Section 6.2 Unless expressly provided otherwise, all representations,
warranties, undertakings, covenants, agreements and obligations made, given or
entered into in this Deed by the Unisource Entities are made, given or entered
into severally by each of the Unisource Entities.
ARTICLE VII.
GUARANTEE
Section 7.1 In consideration of ISC entering into this Deed, the
Unisource Entities (together severally the "Guarantors" for the purposes of this
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Article), at the request of the AUCS Entities, hereby unconditionally guarantee
to ISC and its successors, transferees and assigns the due and punctual
performance and observance by the AUCS Entities of all the AUCS Entities'
obligations and the punctual discharge by the AUCS Entities of all the AUCS
Entities' liabilities to ISC and/or any other Parties contained in or arising
under this Deed or arising from any termination of this Deed, unless they are
prevented from doing any of the foregoing as a direct result of any action on
the part of ISC.
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Section 7.2 If the AUCS Entities shall make default in the payment
when due of any amount payable to ISC and/or any other party under this Deed or
arising from the termination hereof, the Guarantors shall forthwith on demand by
ISC unconditionally pay to ISC in the manner prescribed in this Deed an amount
equal to the amount payable by the AUCS Entities.
Section 7.3 As an independent and primary obligation, without
prejudice to Section 7.1 the Guarantors hereby unconditionally and irrevocably
agree to indemnify and keep indemnified ISC against all and any losses, costs,
claims, liabilities, damages, demands and expenses suffered or incurred by ISC
and/or any other Party arising from failure of the AUCS Entities to comply with
any of their obligations or discharge any of their liabilities under this Deed
or arising from the termination of this Deed or by reason of the AUCS Entities
not being at any time, or ceasing to be, liable in respect of the obligations
and liabilities purported to be assumed by them in accordance with the express
terms of this Deed.
Section 7.4 The guarantee and indemnity contained in this Article
shall be a continuing guarantee and indemnity and shall continue in full force
and effect until all liabilities or purported liabilities of the AUCS Entities
arising under, and all monies owing or payable or purported to be owing or
payable by the AUCS Entities under this Deed or arising from any termination of
this Deed, have been paid, discharged or satisfied in full and notwithstanding
any insolvency of the AUCS Entities or any change in the status of the AUCS
Entities or Subsidiaries.
Section 7.5 The Guarantors shall not be exonerated or discharged nor
shall their liability be affected by any forbearance, whether as to payment,
time, performance or otherwise howsoever, or by any other indulgence being given
to the AUCS Entities or by any variation of the terms of this Deed or by any
act, thing, omission or means whatever which, but for this provision, might
operate to exonerate or discharge the Guarantors from their obligations under
the guarantee and indemnity continued in this Article.
ARTICLE VIII.
INDEMNITIES
Section 8.1 Indemnity of the Unisource Entities and the AUCS
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Entities. The Unisource Entities and the AUCS Entities will, severally, defend,
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indemnify and hold harmless ISC, its Affiliates and partners and their officers,
directors, employees and agents from all liabilities, damages, costs and
expenses (including, without limitation, reasonable counsel fees and expenses)
incurred in connection with (i) any breach by the Unisource Entities and/or the
AUCS Entities of their obligations under this Deed, or (ii) any third party
claim against ISC relating to breaches by the Unisource Entities of any of their
representations or warranties or any of their obligations hereunder provided
that the Unisource Entities and/or the AUCS Entities will not be liable pursuant
to this Section 8.1, (i) unless the aggregate amount otherwise due to ISC, its
Affiliates and partners and their officers, directors, employees and agents
exceeds on a cumulative basis Euro 100,000 and (ii) if such breach of any
representation or warranty or any of
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their obligations under this Deed is caused by any willful misconduct or
negligence on the part of ISC.
Section 8.2 Indemnification Procedures: In the case of any claim
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asserted by a third party against a party entitled to indemnification under this
Deed (the "Indemnified Party"), notice shall be given by the Indemnified Party
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to the party required to provide indemnification (the "Indemnifying Party")
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promptly after such Indemnified Party has actual knowledge of any claim as to
which indemnity may be sought, and the Indemnified Party shall permit the
Indemnifying Party (at the expense of such Indemnifying Party) to assume the
defence of any claim or any litigation resulting therefrom, provided that (i)
the counsel for the Indemnifying Party who shall conduct the defence of such
claim or litigation shall be reasonably satisfactory to the Indemnified Party,
(ii) the Indemnified Party may participate in such defence at such Indemnified
Party's expense, and (iii) the omission by any Indemnified Party to give notice
as provided herein shall not relieve the Indemnifying Party of its
indemnification obligation under this Deed except to the extent that such
omission results in a failure of actual notice to the Indemnifying Party and
such Indemnifying Party is materially damaged as a result of such failure to
give notice. Except with the prior written consent of the Indemnified Party, no
Indemnifying Party, in the defence of any such claim or litigation, shall
consent to entry of any judgment or enter into any settlement that provides for
injunctive or other non-monetary relief affecting the Indemnified Party or that
does not include as an unconditional term thereof the giving by each claimant or
plaintiff to such Indemnified Party of a release from all liability with respect
to such claim or litigation. In the event that the Indemnified Party shall in
good faith determine that the conduct of the defence of any claim subject to
indemnification hereunder or any proposed settlement of any such claim by the
Indemnifying Party might be expected to affect adversely the Indemnified Party's
tax liability or the ability of Indemnified Party to conduct its business, or
that the Indemnified Party may have available to it one or more defences or
counterclaims that are inconsistent with one or more of those that may be
available to the Indemnifying Party in respect of such claim or any litigation
relating thereto, the Indemnified Party shall have the right at all times to
take over and assume control over the defence, settlement, negotiations or
litigation relating to any such claim at the sole cost of the Indemnifying
Party, provided that if the Indemnified Party does so take over and assume
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control, the Indemnified Party shall not settle such claim or litigation without
the written consent of the Indemnifying Party, such consent not to be
unreasonably withheld. In the event that the Indemnifying Party does not accept
the defence of any matter as above provided, the Indemnified Party shall have
the full right to defend against any such claim or demand and shall be entitled
to settle or agree to pay in full such claim or demand. In any event, the
Indemnifying Party and the Indemnified Party shall cooperate in the defence of
any claim or litigation subject to this Article VIII and the records of each
shall be available to the other with respect to such defence.
ARTICLE IX.
MISCELLANEOUS
Section 9.1 Assignment. No Party may assign, sublicense, transfer or
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otherwise dispose of any rights or sub-contract or transfer or otherwise dispose
of any obligations under this Deed, other than in connection with the sale or
transfer of all or substantially all the
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assets of the assigning Party, provided that, as a condition of any such
transfer, such transferee shall agree in writing with the other Parties to fully
perform and discharge all of the obligations of the relevant seller or
transferor under this Deed, except with the prior written approval of the other
Parties, which approval shall not be unreasonably withheld or delayed.
Section 9.2 Governing Law and Arbitration.
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(a) This Deed shall be governed by and shall be construed in
accordance with English law, without reference to the choice of law provisions
thereof. Accordingly any dispute arising out of or having any connection with
this Deed shall be decided exclusively in accordance with English law, provided
that all such disputes shall be referred, in the first instance, to the
respective chief executive officers of the Parties for resolution.
(b) If a dispute, after having first been discussed by the chief
executive officers of each of the relevant Parties (provided that if the dispute
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is between ISC and an AUCS Entity, the matter shall be discussed between the
chief executive officers of ISC and Unisource), is not resolved by the said
chief executive officers within a maximum of 14 days, the dispute shall be
referred to and finally resolved by arbitration under the London Court of
International Arbitration ("LCIA") Arbitration Rules, which Arbitration Rules
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are deemed to be incorporated by reference to this Section 9.2.
(c) Any arbitration commenced pursuant to Section 9.2 shall be
administered by the LCIA and the standard LCIA administrative procedures and
schedule of costs shall apply. In any such arbitration, the appointing authority
shall be the LCIA. The number of arbitrators shall be three and such arbitrators
to include persons experienced in European telecommunications (the
"Arbitrators"). The place of arbitration shall be London and the language used
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in the arbitral proceedings shall be English. The governing law of the Agreement
shall be the substantive law of England.
(d) The fees of the Arbitrators, the costs of the LCIA and the cost
of the other parties relating to the arbitration (including, but not limited to,
the reasonable costs of professional advisers) shall be borne by those Parties
against whom the Arbitrators make any award in the proportion of any such award.
(e) The Arbitrators shall have authority to award interest on any
amount awarded by the Arbitrators up to the date of that award at the rate equal
to 1 (one) percentage point above the three month EURIBOR rate for Euros from
time to time. If any amount payable as a result of a decision of the Arbitrators
is not paid within 14 days of publication of that decision, interest will
thereafter accrue on the amount at the rate equal to 2 (two) percentage points
above the three month EURIBOR rate for Euros from time to time.
(f) The referral of a dispute to arbitration under Section 9.2 shall
not preclude any Party from obtaining interim relief on an urgent basis from a
court of competent jurisdiction pending any decision of the Arbitrators.
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(g) Any decision of the Arbitrators shall be final, conclusive and
binding on the parties, and the parties agree to exclude, so far as lawfully
possible to exclude, any right of application or appeal to the English (or
other) courts in connection with any question of law arising in the arbitration
or in connection with any award or decision made by the Arbitrators, except as
may be necessary to enforce such award or decision.
(h) The provisions of this Section are severable from the rest of
this Deed and shall remain in effect despite the termination of or invalidity
for any reason of this Deed.
Section 9.3 No Partnership. Nothing in this Deed shall be deemed to
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create any joint venture, partnership or principal and agent relationship
between any Unisource Entity, any AUCS Entity or Subsidiary and ISC and no party
shall hold itself out in its advertising or otherwise in any manner which would
indicate or imply any such relationship with the other.
Section 9.4 Validity. If any provision of this Deed is found or held
--------
to be invalid or unenforceable, the validity of all the other provisions hereof
shall not be affected thereby and the parties agree to meet and review the
matter and if any valid and enforceable means is reasonably available to achieve
the same object as the invalid or unenforceable provision, to adopt such means
by way of variation of this Deed.
Section 9.5 Severability. In the event that any of the terms of this
------------
Deed are found to be invalid, unlawful or unenforceable, such terms (provided
that they are not fundamental to the deed) shall be severable from the remaining
terms, which shall continue to be valid and enforceable.
Section 9.6 Variation. No variation of or addition to this Deed
---------
shall be of any force or effect unless reduced to writing, signed by or on
behalf of the Parties and expressed to amend this Deed.
Section 9.7 Entire Agreement. This Deed (including the documents
----------------
referred to in it) replaces all prior agreements and arrangements between the
Parties and constitutes the entire understanding between the Parties relating to
the subject matter of this Deed. Each Party acknowledges that in agreeing to
enter into this Deed it has not relied on any representations, warranties or
promises (except those set out in this Deed) made by or on behalf of the other
Parties before the signature of this Deed. Each Party waives all rights and
remedies which, but for this Section, might otherwise be available to it in
respect of any such representation, warranty or promise, provided that nothing
in this Section shall limit or exclude any liability for fraud.
Section 9.8 Waiver. A waiver by a Party of a breach of any term or
------
condition of this Deed in any one instance shall be in writing and shall not be
deemed as a continuing waiver or a waiver of any other or subsequent breach
unless the written notice so provides.
Section 9.9 Notices.
-------
(a) The Parties choose the following addresses as the address at
which they will accept service of all documents and notices relating to this
Deed.
11
to ISC at: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: The General Counsel
to any Unisource Entity at:
c/o Unisource NV
"Transpolis"
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: The General Counsel
to any AUCS Entity at:
▇▇▇▇▇▇▇▇▇ ▇-▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: The General Counsel
to Telia at:
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇ ▇▇▇
Attention: Director of Legal Affairs
To KPN at:
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: The General Counsel
12
To Swisscom at:
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇-▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Fax: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: Chief Legal Counsel
(b) Any notice to be given by a Party to another Party in terms of
this Deed shall be given by prepaid registered post or by facsimile or shall be
delivered by hand, provided that:
(i) any notice given by prepaid registered post for which a
receipt shall have been issued shall be deemed to have been received by the
addressee, in the absence of proof to the contrary, ten days after the date of
postage;
(ii) any notice delivered by hand during normal business hours
for which a receipt shall have been issued shall be deemed to have been received
by the addressee, in the absence of proof to the contrary, at the time of
delivery;
(iii) any notice given by facsimile shall be deemed to have been
received by the addressee, in the absence of proof to the contrary, immediately
upon the issuance by the transmitting facsimile machine, of a report confirming
correct transmission of all the pages of the document containing the notice or
upon receipt by the transmitting facsimile machine, at the end of the notice
being transmitted, of the automatic answerback of the receiving facsimile
machine.
Section 9.10 No Third Party Beneficiaries. This Deed is for the sole
----------------------------
and exclusive benefit of the Parties hereto and nothing herein expressed or
implied shall give or be construed to give to any person or entity, other than
the Parties hereto, any legal or equitable rights hereunder.
Section 9.11 Filing. Except as contemplated in Section 2.6(b), each
------
Party hereto shall use its reasonable efforts to obtain all authorizations,
consents, orders and approvals of, to give all notices to and make all filings
with, all governmental authorities and other third parties that may be or become
necessary (or as otherwise agreed by the Parties) for its execution and delivery
of, and performance of its obligations pursuant to, this Deed, and each Party
will cooperate fully with the other Parties in promptly seeking to obtain all
such authorizations, consents, orders and approvals, giving such notices, and
making such filings (including any filings to be submitted to the European
Commission as a result of this Agreement). Each Party will bear its own costs,
expenses and disbursements in relation to any and all such costs, expenses and
disbursements incurred by it under this Section 9.11.
[Signature Pages Follow]
13
IN WITNESS WHEREOF this Deed has been executed as a Deed by the
Parties hereto and is intended to be and is hereby delivered on the date first
before written.
SIGNED AND DELIVERED )
AS A DEED by )
ISC acting by a director )
and its secretary or two directors )
--
Director
Director/Secretary
SIGNED AND DELIVERED )
AS A DEED by )
UNISOURCE PAN-EUROPEAN )
SERVICES B.V. a company )
incorporated in The Netherlands )
by _____________________ )
[and ________________] being [a] )
person[s] who, in accordance with )
the laws of that territory, [is or are] )
acting under the authority of )
Unisource Pan-European )
Services B.V. )
SIGNED AND DELIVERED )
AS A DEED by )
UNISOURCE N.V. a company )
incorporated in The Netherlands )
by _____________________ )
[and ________________] being [a] )
person[s] who, in accordance with )
the laws of that territory, [is or are] )
acting under the authority of )
Unisource N.V. )
14
SIGNED AND DELIVERED )
AS A DEED by )
TELIA AB a company )
incorporated in Sweden )
by _____________________ )
[and ________________] being [a] )
person[s] who, in accordance with )
the laws of that territory, [is or are] )
acting under the authority of )
Telia AB )
SIGNED AND DELIVERED )
AS A DEED by )
KPN TELECOM B.V. )
a company incorporated in )
The Netherlands )
by _____________________ )
[and ________________] being [a] )
person[s] who, in accordance with )
the laws of that territory, [is or are] )
acting under the authority of )
KPN Telecom B.V. )
SIGNED AND DELIVERED )
AS A DEED by )
SWISSCOM AG a company )
incorporated in Switzerland )
by _____________________ )
[and ________________] being [a] )
person[s] who, in accordance with )
the laws of that territory, [is or are] )
acting under the authority of )
Swisscom AG )
15
SIGNED AND DELIVERED )
AS A DEED by )
AUCS COMMUNICATIONS )
SERVICES N.V. a company )
incorporated in The Netherlands )
by Aad van Waveren )
being a person who, in )
accordance with the laws of that )
territory, is acting under )
the authority of AUCS )
Communications Services N.V. )
SIGNED AND DELIVERED )
AS A DEED by )
AUCS COMMUNICATIONS )
SERVICES v.o.f. a partnership )
formed in The Netherlands )
and represented by AUCS N.V. in )
accordance with Dutch law )
by Aad van Waveren )
being a person who, in )
accordance with the laws of that )
territory, is acting under )
the authority of AUCS )
Communications Services v.o.f. )
SIGNED AND DELIVERED )
AS A DEED by )
BRIAP B.V. )
a company incorporated in )
The Netherlands )
by _____________________ )
[and ________________] being [a] )
person[s] who, in accordance with )
the laws of that territory, [is or are] )
acting under the authority of )
Briap B.V. )
16
SCHEDULE 1.1
"Affiliate" means (i) ISC, (ii) each current or future
corporation or entity owned or under the
Control of ISC, (iii) any of ISC's current or
future subsidiaries, and (iv) any current or
future corporate entity (or subsidiary
thereof) whose primary business is to conduct
data communications or other related
activities, and such entity has entered into a
legal relationship with ISC or any of its
Affiliates whereby such corporation has the
right to conduct business under the trademark
and tradename of "Infonet" and which entities
as of the Commencement Date are listed in
Schedule 3, as it may be amended from time to
time by ISC upon notice to Unisource and
consent of Unisource which will not be
unreasonably withheld or delayed;
"Arbitration Rules" means the rules of the LCIA in accordance with
which any LCIA arbitration will be conducted,
or such amended rules as the LCIA may have
adopted hereafter to take effect before the
commencement of the arbitration;
"Assets" means the tangible assets of the AUCS Entities
or Subsidiaries as at the date of this Deed
other than assets which the AUCS Entities will
transfer to third parties in compliance with
their obligations under the AT&T Asset
Transfer Agreements but including any tangible
assets of the AUCS Entities or Subsidiaries
thereafter acquired and any assets to be
transferred to the AUCS Entities under the
terms of the AT&T Asset Transfer Agreements;
"AT&T Asset Transfer Agreements" means those AT&T Exit Agreements under which,
in accordance with their terms, assets are to
be transferred either to or from the AUCS
Entities and/or the relevant Subsidiaries.
"AT&T Exit Agreements" means the Framework Agreement entered into
between the AUCS Entities, UPES, Unisource and
various AT&T entities, dated May 29, 1999
including all the various ancillary documents
set out as schedules to that Framework
Agreement, to the extent disclosed to ISC by
Unisource (for the
i
avoidance of doubt, section 6 and related
schedules of the Framework Agreement and
certain other pricing and financial
information were not disclosed by Unisource to
ISC), true and correct copies of all of which
have been delivered to ISC which documents are
listed at Schedule A.
"Commencement Date" means October 01, 1999, 00:01 a.m.;
"Control" means in relation to a body corporate, the
power of a person to secure that its affairs
are conducted in accordance with the wishes of
that person:
(a) by means of the holding of shares or the
possession of voting power in or in relation
to that or any other body corporate; or
(b) by virtue of any powers conferred by the
articles of association or any other document
regulating that or any other body corporate,
and, in relation to a partnership, means the
right to a share of more than one half the
assets, or of more than one half of the
income, of the partnership;
"Encumbrance" means any interest or equity of any person
(including any right to acquire, option or
right of pre-emption) or any mortgage, charge,
pledge, lien, assignment, hypothecation,
security interest, title retention or any
other security agreement or arrangement;
"Immediately Available Funds" means a wire transfer of immediately available
funds to a deposit account designated by the
recipient or delivery of a certified or bank
cashier's check in same day funds;
"Management Agreement" means the agreement dated September 30, 1999
entered into between the Parties for the
provision of management services by ISC to the
AUCS Entities;
"Subsidiary" means the subsidiaries of AUCS v.o.f. and/or
AUCS N.V. from time to time;
"Unisource Entities" means Unisource Sub, Unisource, Unisource
Nominee and the Unisource Stockholders;
ii
"VAT" means Value Added Tax or any similar tax from
time to time replacing it or performing a
similar fiscal function;
The capitalized terms listed below shall have the meanings given to them in the
sections of this Agreement cross referenced below:
"Arbitrators" Shall have the meaning set forth in Section 9.2
"AUCS Entities" Shall have the meaning set forth in Section 2.1
"Call Option" Shall have the meaning set forth in Section 2.1
"Consultation Period" Shall have the meaning set forth in Section 2.4
"Exercise Notice" Shall have the meaning set forth in Section 2.6
"Guarantors" Shall have the meaning set forth in Section 7.1
"Indemnified Party" Shall have the meaning set forth in Section 8.2
"Indemnifying Party" Shall have the meaning set forth in Section 8.2
"LCIA" Shall have the meaning set forth in Section 9.2
"Option Commencement Date" Shall have the meaning set forth in Section 2.6
"Option Period" Shall have the meaning set forth in Section 2.2
"Valuation Notice" Shall have the meaning set forth in Section 2.5
"Valuation Date" Shall have the meaning set forth in Section 2.5
"Written Determination" Shall have the meaning set forth in Section 2.4
iii
SCHEDULE 2.4(b)
NON-EXHAUSTIVE PRINCIPLES OF DEFINING FAIR MARKET VALUE
1. The appraiser shall take into account the terms and conditions upon which
the assets are to be sold.
2. The appraiser shall consider the likely market for the assets.
3. The appraiser shall assume that the price will be paid in cash upon
completion of the purchase.
4. The appraiser shall take into account liabilities associated with the assets
on Euro 1 for Euro 1 basis.
iv
SCHEDULE 3
----------
Affiliates
SEDCO
Infonet Australia
Datakom Austria GmbH
Infonet Belgium S.A
Datacom, S.A.
Interpac Telematica Ltda
Infonet Canada
Infonet Software Solutions
Infonet Chile S.A.
Infonet Services Corporation
Infonet/China Ltd
Enterprise Ltda
Tecapro
Aliatel a.s.
Telecom Denmark Erhverv A/S
Codetel
DATCOM LTD.
InTouch Communications Services
Oy Infonet Finland
Infonet France S.A.
France Telecom Interpac S.A.
Infonet Network Services Deutschland GmbH.
OTE SA
Infonet - Hong Kong
BankNet Ltd.
PT Telekominukasi Indonesia
Infonet Ireland Ltd
Infonet Israel, Ltd
Infonet Italia S.p.A
v
KDD Communications, Inc. (KCOM)
Korea Telecom, Data Division
InfoGlobe Corporation
Infonet Luxembourg SA
Telecom Malaysia Berhard
Infonet/ACASIA program office
Infonet Mexico
Infonet Nederland BV
Infonet TELECOM AS
CCNet S.A.
Philippines Long Distance Telephone
PLDT Marketing Center
Infonet Portugal
Telefonica Large Distancla
INFOCOM
Singapore Telecom Int'l PTE, Ltd
EDS South Africa (Pty) Limited
Telefonica Servicios SA (TSA1)
Lanka Communication Services Pte. Ltd.
Infonet Svenska AB
Infonet (Switzerland) Ltd.
Hong Kong Telecom Ltd
SIAM Infor Tel Co., Ltd
ACCESS A.S
Infonet UK, Ltd
Infonet Software Solutions, Ltd
Infocom GmbH
Setradat C.A.
vi
SCHEDULE 4.1(g)
---------------
Consents, authorizations and approvals
1. Form A/B filing by certain of the Parties to the European Commission in
relation to the transactions contemplated between Infonet and the Parties
under this and other agreements.
vii
SCHEDULE A: AT&T Exit Agreements
--------------------------------
1. Framework Agreement between AT&T Corp., AT&T Pan-European Services Inc.,
Unisource N.V., Unisource Pan-European Service B.V., AUCS v.o.f., and AUCS
N.V. date 29 May 1999.
2. Easylink Business Transfer Agreement between AUCS v.o.f., AUCS (UK) Limited,
AT&T Easylink Services (UK) Limited and AT&T Global Communications Services
Inc. dated 22 May 1999 and attached to the Framework Agreement as Schedule
4.1.1.
3. Easylink Transition Services Agreement between AUCS v.o.f. and AT&T Easylink
Services (UK) Limited dated 22 May 1999 and attached to the Framework
Agreement as Schedule 4.1.2.
4. Continental Asset Transfer Agreement between AT&T Communications Services
Inc. and AUC v.o.f dated 29 May 1999 and attached to the Framework Agreement
as Schedule 4.2(a).
5. Italian X.25 Transfer Agreement between AT&T Communications Services Italia
SpA and AUCS (Italia) SpA dated 29 May 1999 and attached to the Framework
Agreement as Schedule 4.2(b).
6. Continental Access Circuits Transfer Agreement between AT&T GME and AUCS
v.o.f dated 29 May 1999 and attached to the Framework Agreement as Schedule
4.2(c).
7. UK Stratacom Asset Transfer Agreement between AT&T UK and AUCS v.o.f date 29
May 1999 and attached to the Framework Agreement as Schedule 4.2(d).
8. X.25 Outsourcing Service Agreement between AT&T GME and AUCS v.o.f dated 29
May 1999 and attached to the Frame work Agreement as Schedule 4.2(e).
9. Redditch CDC Lease Agreement between AT&T ISTEL and AUCS v.o.f dated 29 May
1999 and attached to the Framework Agreement as Schedule 4.2(f).
10. Redditch GNMC Telehousing Agreement between AT&T UK and AUCS v.o.f dated 29
May 1999 and attached to the Framework Agreement as Schedule 4.2(g).
11. Summit House Telehousing Agreement between AT&T UK and AUCS v.o.f dated 29
May 1999 and attached to the Framework Agreement as Schedule 4.2(h).
12. Amsterdam Telehousing Agreement between AT&T Communications Services
Nederland B.V. and AUCS v.o.f dated 29 May 1999 and attached to the
Framework Agreement as Schedule 4.2(i).
13. Voice Service Provider Agreement between AT&T UK and AUCS v.o.f dated 29
May 1999 and attached to the Framework Agreement as Schedule 4.2(j).
viii
14. Data Service Provider Agreement between AT&T UK and AUCS v.o.f dated 29 May
1999 and attached to the Framework Agreement as Schedule 4.2(k).
15. Interconnect Service Amendment Agreement between AT&T UK and AUCS v.o.f
dated 29 May 1999 and attached to the Framework Agreement as Schedule
4.2(l).
16. Wholesale Services Agreement between AT&T GME and AUCS v.o.f dated 29 May
1999 and attached to the Framework Agreement as Schedule 4.2(m).
17. Worldsource Channel Amendment Agreement between AT&T UK, AT&T GME and AUCS
v.o.f dated 29 May 1999 and attached to the Framework Agreement as Schedule
4.2(n).
18. AT&T UK Distribution Agreement between AT&T UK and AUCS v.o.f dated 29 May
1999 and attached to the Framework Agreement as Schedule 4.2(o).
ix