AMENDED AND RESTATED
SHARE SUBSCRIPTION, SHARE OPTION
AND SHAREHOLDERS AGREEMENT
THIS AGREEMENT, is made the 22nd day of July, 1998, BETWEEN
RSL COM Europe, Ltd. a United Kingdom corporation (the "Company"), RSL
Communications, Ltd., a Bermuda corporation (the "Parent"), and Metro Holding
AG, a Swiss corporation ("Metro").
WHEREAS,
(A) the Company, the Parent and Metro have entered into that
certain Share Subscription, Share Option and
Shareholders Agreement dated June 10, 1998 (the
"Original Agreement");
(B) pursuant to the Original Agreement, (i) Metro and the
Company have entered into that certain Marketing and
Distribution Services Agreement dated June 10, 1998
(the "Services Agreement") and (ii) Metro has purchased
from the Company, and the Company has issued and sold
to Metro, 142,857 shares (the "Subscription Shares") of
the Company's shares, par value(pound).01 per share
(the "Shares");
(C) pursuant to that certain letter dated July 7, 1998 (the
"Option Letter") from the parent to Metro, the Parent
granted Metro on the terms and conditions set forth in
the Option Letter, an option (the "Exchange Option") to
exchange the Subscription Shares for 1,607,142 newly
issued shares (the "Parent Exchange Shares") of the
Parent's Class A Common Stock, par value $.00457 per
share ("Parent Shares");
(D) Metro has elected to exercise the Exchange Option, and
concurrently herewith, Metro and the Parent are
entering into an exchange agreement (the "Exchange
Agreement") providing for the exchange of the
Subscription Shares for the Parent Exchange Shares;
(E) the parties desire to amend the Original Agreement as
provided herein;
NOW, THEREFORE, the parties agree that the Original Agreement is hereby
amended and restated in its entirety as provided herein:
CLAUSE 1
DEFINITIONS
1.1 Certain Definitions. As used in this Agreement and the
Schedules hereto, the following terms, not defined elsewhere, have the following
meanings:
Additional Shares: the 1,607,142 Parent Shares to be purchased
by Metro or, at Metro's election, Ligapart pursuant to the Share Purchase
Agreement.
Affiliate: with respect to any Person, a Person that directly
or indirectly through one or more intermediaries, controls, is controlled by, or
is under common control with such Person. "Control" (including the terms
"controlled by" and "under common control with") means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a person, whether through the ownership of voting securities, by
contract or credit arrangement, as trustee or executor, or otherwise.
Applicable Securities Laws: all laws, rules and regulations of
any Governmental Entity of competent jurisdiction applicable to any Transfer of
Telegate Exchange Shares.
Appraiser: the meaning given in Clause 9.1.
Business Day: any day other than a Saturday, a Sunday, or a
day on which commercial banking institutions are authorized or required by law
to be closed in London.
Commission: the United States Securities and Exchange
Commission.
Company: the meaning given in the introductory paragraph of
this Agreement.
Consent: any consent, approval, authorization, order, notice,
filing, registration or qualification of or with or waiver from any Person.
Covered Shares: the Telegate Exchange Shares, the Parent
Exchange Shares and the Additional Shares.
Delta Three: the meaning given in Clause 17.1.
Earliest Twister Option Completion Date: the meaning given in
Clause 7.4(a).
Exchange Option: the meaning given in WHEREAS Clause (C).
2
Fully-Diluted TCE Shares: the meaning given in Clause 7.1(b).
Fully-Diluted TS Shares: the meaning given in Clause 7.1(b).
Governmental Entity: any governmental or regulatory authority,
agency, court, commission or other entity, domestic or foreign.
Income Tax: any federal, state, provincial, local or foreign
income, alternative, minimum, accumulated earnings, personal holding company,
franchise, capital stock, net worth, capital, profits or windfall profits tax or
other similar tax, estimated tax, duty or other governmental charge or
assessment or deficiencies thereof.
Independent Appraiser: the meaning given in Clause 9.2.
Ligapart: Ligapart AG, a wholly owned Subsidiary of Metro.
Material Adverse Effect: with respect to the Company, the
Parent or Metro, a material adverse effect (a) on the properties, assets,
liabilities, business, financial condition or results of operations of such
Person and its Subsidiaries taken as a whole or (b) that would have a material
adverse effect on the ability of such Person to consummate the transactions
contemplated by this Agreement, the Exchange Agreement or the Services
Agreement.
Metro: the meaning given in the introductory paragraph of this
Agreement.
Metro Invested Amount: the meaning given in Clause 7.1(b).
Metro Telegate Party: each of Metro Vermogensverwaltung GmbH &
Co. Kommanditgesellschaft, ▇▇▇▇▇▇ Telemarketing und Vertrieb GmbH & Co. KG and
Invision AG.
Non-Compete Period: the meaning given in Clause 13.1.
Option Letter: the meaning given in WHEREAS Clause (C).
Original Agreement: the meaning given in WHEREAS Clause (A).
Parent: the meaning given in the introductory paragraph of
this Agreement.
Parent Exchange Shares: the meaning given in WHEREAS Clause
(C).
Parent Shares: the meaning given in WHEREAS Clause (C).
3
Person: any natural person, firm, partnership, association,
corporation, company, trust, business trust, Governmental Entity or other
entity.
Prospectus: the prospectus included in any Shelf Registration
Statement, including all amendments (including, but not limited to,
post-effective amendments) and supplements to such prospectus and all material
incorporated by reference in such prospectus.
Right of Refusal Holder: the minority shareholder of TCE.
RSL Com Party: each of the Parent, the Company and RSL Com
Deutschland GmbH.
Securities Act: the United States Securities Act of 1933, as
amended.
Services Agreement: the meaning given in WHEREAS Clause (B).
Share Purchase Agreement: the Share Purchase Agreement dated
the date hereof among ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ Investment Partners, L.P., Fleur
▇▇▇▇▇▇, Bukfenc, Inc., Tarlovsky Investment Partners, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, L.P.,
▇▇▇▇▇▇ ▇▇▇▇▇▇, as trustee of Waltham Trust, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and Metro.
Shares: the meaning given in WHEREAS Clause (B).
Specified Companies: the meaning given in Clause 13.1.
Specified Twister Option Completion Date: the meaning given in
Clause 7.4(a).
Subscription Shares: the meaning given in WHEREAS Clause (B).
Subsidiary: with respect to any Person (the "First Person"),
any other Person (other than a natural person), whether incorporated or
unincorporated, of which at least a majority of the securities or ownership
interests having by their terms ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions is directly or
indirectly owned or controlled by the First Person or by one or more of its
respective Subsidiaries or by the First Person and any one or more of its
respective Subsidiaries.
TCE: TCE Network AG, a Swiss corporation.
TCE Option Exercise Price: the meaning given in Clause 7.1(a).
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TCE Shares: the meaning given in Clause 7.1(a).
Telegate: Telegate Holding GmbH.
Telegate AG: Telegate Aktiengesellschaft fur telefonische
Inforormationsdienste.
Telegate Agreement: the Option Agreement dated May 28, 1998
between Metro Vermogensverwaltung GmbH & Co. Kommanditgesellschaft, ▇▇▇▇▇▇
Telemarketing und Vertrieb GmbH & Co. KG, Invision AG, the Company and RSL Com
Deutschland GmbH.
Telegate EBITDA: for any period the consolidated earnings
before interest, taxes, depreciation and amortization of Telegate AG for such
period, determined on the same basis as used in preparing Telegate AG's audited
annual accounts for 1997.
Telegate Equity Value: the meaning given in Clause 3.1(b).
Telegate Exchange Shares: the meaning given in Clause 3.1(a).
Telegate Shares: ordinary shares of Telegate representing 25%,
on a fully-diluted basis of the Shares of Telegate AG, beneficially owned by
Metro and its Affiliates.
Transfer: with respect to any property and any Person, any
transfer, sale, pledge hypothecation or other disposition of such Property by
such Person.
TS: Twister Communications Network AG, a Swiss corporation.
TS Option Exercise Price: the meaning given in Clause 7.1(a).
TS Shares: the meaning given in Clause 7.1(a).
Twister Option: the meaning given in Clause 7.1(a).
Twister Option Completion Date: the meaning given in Clause
7.4(a).
Twister Option Exercise Notice: the meaning given in Clause
7.4(a).
Twister Option Termination Date: the meaning given in Clause
7.2.
Twister Right of First Refusal: the right of first refusal in
favor of the Right of Refusal Holder with respect to the TCE Shares.
5
Twister Shares: the TCE Shares and the TS Shares.
Valuation Notice: the meaning given in Clause 9.1.
1.2 Other Definitional Provisions. (a) The words "hereof",
"herein" and "hereunder" and words of similar import, when used in this
Agreement, refer to this Agreement as a whole and not to any particular
provision of this Agreement.
(b) Terms defined in the singular have the same meaning when
used in the plural, and vice versa.
(c) References to "Clauses", "Exhibits" and "Schedules" refer
to Clauses of, and Exhibits and Schedules to, this Agreement (as each of the
same may be amended in accordance with the terms hereof), unless otherwise
specified.
CLAUSE 2
[Intentionally Omitted]
CLAUSE 3
EXCHANGE FOR THE TELEGATE SHARES
3.1 The Exchange. (a) If the Company shall acquire the
Telegate Shares pursuant to the Telegate Agreement, the Parent shall issue to
the Metro Telegate Parties as payment in full of the purchase price therefor
that number of Parent Shares (the "Telegate Exchange Shares") determined in
accordance with Clause 3.1(b) and Clause 9. The Company and the Metro Telegate
Parties agree that, pursuant to Clause 2.4 of the Telegate Agreement, the Metro
Telegate Parties shall have the right to require the Company to acquire the
Telegate Shares only if the Telegate EBITDA shall have been positive for a three
month period ending on or before May 31, 1999.
(b) For the purposes of determining the number of the Telegate
Exchange Shares, the Company and Metro will promptly upon receipt of an
Acceptance Notice (as defined in the Telegate Agreement) engage their respective
Appraisers and cause the equity value of Telegate as of the Initial Closing Date
(as defined in the Telegate Agreement) (the "Telegate Equity Value") to be
determined in accordance with Clause 7. The number of the Telegate Exchange
Shares shall equal the quotient obtained by dividing 25% of the Telegate Equity
Value by the average closing price (or, if no closing sale price is reported,
the last reported sale price) of one Parent Share as reported by The NASDAQ
National Market for the 30
6
trading days immediately preceding the date on which the Company is to acquire
the Telegate Shares pursuant to the Telegate Agreement.
(c) Notwithstanding anything to the contrary in this Agreement
or in the Telegate Agreement, neither the Parent nor the Company shall have any
obligation to acquire the Telegate Shares, and the Put Option (as defined in the
Telegate Agreement) shall not be exercisable by the Beneficiaries (as defined in
the Telegate Agreement), if any class of equity securities of Telegate is then
publicly traded.
3.2 Completion of the Exchange. On the date on which the
Company is to acquire the Telegate Shares pursuant to the Telegate Agreement,
subject to the satisfaction or waiver of all conditions to such acquisition
thereunder:
(a) the Metro Telegate Parties shall deliver to the Company:
(i) a duly executed and notarized public deed or
deeds, complying with German law, evidencing the transfer of
the Telegate Shares to the Company; and
(ii) a certificate duly executed by the Metro
Telegate Parties and its Affiliates confirming, (A) with
respect to the Telegate Exchange Shares, representations and
warranties to the effect set forth in Clauses 16.8, 16.9 and
16.10 and (B) with respect to the Telegate Shares,
representations and warranties to the effect set forth in
Clause 16.7(b);
(b) the Parent shall deliver to the Metro Telegate Parties:
(i) one or more share certificates representing the
Telegate Exchange Shares registered in the name of the Metro
Telegate Parties, allocated amongst them as they shall
request, and bearing the legends set forth in Clause 10.1;
(ii) an opinion of counsel to the Parent, in form and
substance reasonably satisfactory to the Metro Telegate
Parties, that the Telegate Exchange Shares have been duly
authorized and, assuming that they have been issued and the
Telegate Shares delivered to the Company in accordance with
the terms of this Agreement, have been validly issued and are
fully paid and nonassessable.
7
(c) the Company shall deliver to the Metro Telegate Parties a
certificate duly executed by the Company confirming with respect to the
Telegate Shares the representations and warranties set forth in Clause
14.8, 14.9 and 14.10.
3.3 Payment of Taxes and Expenses. (a) Except as otherwise
provided herein, the Parent shall pay all expenses in connection with, and all
taxes and other governmental charges that may be imposed with respect to, the
issuance or delivery of the Telegate Exchange Shares, unless such tax or charge
is imposed by law upon the Metro Telegate Parties, in which case such taxes or
charges shall be paid by the Metro Telegate Parties, who shall be reimbursed
therefor by the Parent, provided that in no case will the Parent be liable for
any Income Taxes of the Metro Telegate Parties or their Affiliates. The Parent
shall not be required, however, to pay any tax or other charge imposed in
connection with any transfer arising out of the issuance of any share
certificate for Telegate Exchange Shares in any name other than that of the
Metro Telegate Parties, and in such case the Parent shall not be required to
issue or deliver any share certificate until such tax or other charge has been
paid or satisfied or it has been established to the satisfaction of the Parent
that no such tax or other charge is due.
(b) Except as otherwise provided herein, the Metro Telegate
Parties shall pay all expenses in connection with, and all taxes and other
governmental charges that may be imposed with respect to, the transfer and
delivery of the Telegate Shares, unless such tax or charge is imposed by law
upon the Company, in which case such taxes or charges shall be paid by the
Company, who shall be reimbursed therefor by the Metro Telegate Parties,
provided that in no case will the Metro Telegate Parties be liable for any
Income Taxes of the Company or its Affiliates. The Metro Telegate Parties shall
not be required, however, to pay any tax or other charge imposed in connection
with any transfer arising out of the issuance of any share certificate for
Telegate Shares in any name other than that of the Company or a Subsidiary of
the Company, and in such case the Metro Telegate Parties shall not be required
to deliver any share certificate until such tax or other charge has been paid or
satisfied or it has been established to the satisfaction of the Metro Telegate
Parties that no such tax or other charge is due.
3.4 No Rights as Stockholder. The Metro Telegate Parties will
not have any voting or other rights as a stockholder of the Parent with respect
to any Telegate Exchange Shares until the issuance to the Metro Telegate Parties
of a share certificate or certificates representing the Telegate Exchange
Shares. No adjustment shall be made for dividends or other rights for which the
record date is prior to the issuance of such certificate or certificates.
3.5 Reservation and Authorization of Shares. The Parent shall
at all times reserve and keep available for issuance authorized but unissued
Parent Shares in the number of the Telegate Exchange Shares. The Telegate
Exchange Shares when issued against receipt
8
by the Company of the Telegate Shares as provided in this Clause 3, shall be
duly and validly issued and fully paid and nonassessable.
3.6 Telegate IPO. The Company and Metro shall use their
reasonable efforts to effect a public offering of shares of Telegate AG,
provided that (a) neither party shall have any obligation under this Clause 3.6
unless such offering may be effected based on an equity valuation of Telegate
AG, after giving effect to such offering, of no less than DM 240,000,000 and (b)
the Company shall have no obligation under this Clause 3.6 if the issuance of
shares of Telegate AG in such public offering would violate any obligation or
covenant of the Company under any of its agreements relating to borrowed money.
CLAUSE 4
[Intentionally Omitted]
CLAUSE 5
[Intentionally Omitted]
CLAUSE 6
[Intentionally Omitted]
CLAUSE 7
THE TWISTER OPTION
7.1 Twister Option. (a) In consideration of the sum of $1
previously paid by the Company to Metro (receipt of which Metro hereby
acknowledges), Metro hereby grants to RSL an option (the "Twister Option") to
purchase from Metro and its controlled Affiliates, subject to the terms and
conditions hereof and, in the case of the TCE Shares, the Twister Right of First
Refusal, (i) all of the shares of TCE owned beneficially by Metro and its
controlled Affiliates (the "TCE Shares"), at such aggregate price for the TCE
Shares as shall be determined in accordance with Clause 7.1(c) (the "TCE Option
Exercise Price"), and (ii) all of the shares of TS owned beneficially by Metro
and its controlled Affiliates (the "TS Shares"), at such aggregate price for the
TS Shares as shall be determined in accordance with Clause 7.1(d) (the "TS
Option Exercise Price").
9
(b) For the purposes of determining the TCE Option Exercise
Price and the TS Option Exercise Price, after receipt from the Company of a
Twister Option Exercise Notice (as defined in Clause 7.4), Metro will promptly,
and in no event later than the tenth Business Day after receipt of such Twister
Option Exercise Notice, deliver to the Company a written statement certified by
Metro's Chief Financial Officer setting forth, as of the date of such statement,
(i) the total number of shares of TCE outstanding on a fully-diluted basis (the
"Fully-Diluted TCE Shares"), (ii) the number of the TCE Shares, (iii) the total
amount invested by Metro and its Affiliates in TCE (the "Metro Invested
Amount"), (iv) the total number of shares of TS outstanding on a fully-diluted
basis (the "Fully-Diluted TS Shares") and (v) the number of the TS Shares.
(c) The TCE Option Exercise Price shall equal the product of
(i) the lesser of (A) CHF5,000,000 and (B) the Metro Invested Amount and (ii)
the quotient obtained by dividing the number of the TCE Shares by the number of
the Fully-Diluted TCE Shares.
(d) The TS Option Exercise Price shall equal the product of
(i) CHF800,000 and (ii) the quotient obtained by dividing the number of the TS
Shares by the number of the Fully-Diluted TS Shares.
7.2 Duration. The Twister Option shall terminate at 5:00 p.m.
New York City time on December 7, 1998 (the "Twister Option Termination Date").
7.3 Exercisability. The Twister Option may be exercised in
whole, but not in part, at any time after the date hereof through and including
the Twister Option Termination Date.
7.4 Manner of Exercise. (a) The Twister Option may be
exercised by written notice (a "Twister Option Exercise Notice") to Metro given
not fewer than ten and not more than 45 days prior to the Business Day on which
the Company will exercise the Twister Option (the "Specified Twister Option
Completion Date"). Promptly upon receipt of the Twister Option Exercise Notice,
Metro shall give to the Right of Refusal Holder any notice thereof required
under the Twister Right of First Refusal and shall give to the Company written
notice specifying the earliest Business Day on which the exercise of the Twister
Option may be completed consistent with the terms of the Twister Right of First
Refusal, assuming that the Twister Right of First Refusal is not exercised, and
shall thereafter give prompt written notice to the Company of any acceleration
of such date (the "Earliest Twister Option Completion Date"). Subject to the
exercise of the Twister Right of First Refusal, the exercise of the Twister
Option shall be completed on the date (the "Twister Option Completion Date")
that is the later to occur of (i) the Specified Twister Option Completion Date
and (ii) the Earliest Twister Option Completion Date.
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(b) On the Twister Option Completion Date:
(i) the Company shall deliver to Metro:
(A) by wire transfer of immediately available funds
to an account designated in writing by Metro to the Company at
least two Business days prior to the Twister Option Completion
Date, an amount equal to the sum of the TCE Option Exercise
Price and the TS Option Exercise Price;
(B) a certificate duly executed by the Company
confirming with respect to the Twister Shares the
representations and warranties set forth in Clause 14.8, 14.9
and 14.10; and
(ii) Metro shall deliver to the Company:
(A) appropriate, duly executed, instruments of
transfer, complying with applicable laws, evidencing the
transfer of the Twister Shares to the Company;
(B) a certificate duly executed by Metro confirming
with respect to the Twister Shares the representations and
warranties set forth in Clause 16.7(a).
7.5 Payment of Taxes and Expenses. Except as otherwise
provided herein, Metro shall pay all expenses in connection with, and all taxes
and other governmental charges that may be imposed with respect to, the delivery
of the Twister Shares pursuant to the Twister Option, unless such tax or charge
is imposed by law upon the Company, in which case such taxes or charges shall be
paid by the Company, who shall be reimbursed therefor by Metro, provided that in
no case will Metro be liable for any Income Taxes of the Company or its
Affiliates. Metro shall not be required, however, to pay any tax or other charge
imposed in connection with any transfer arising out of the issuance of any share
certificate for Twister Shares in any name other than that of the Company or a
Subsidiary of the Company, and in such case Metro shall not be required to
deliver any stock certificate until such tax or other charge has been paid or
satisfied or it has been established to the satisfaction of Metro that no such
tax or other charge is due.
7.6 No Transfers of Twister Shares. On and after the date
hereof through and including the Twister Option Termination Date, Metro and
Affiliates shall not Transfer any Twister Shares.
7.7 Exercise of Twister Right of First Refusal. In the event
that the Twister Right of First Refusal shall be exercised, Metro shall, or
shall cause its controlled Affiliates to,
11
divest the TS Shares and, from and after the exercise of the Twister Right of
First Refusal, shall not support, and shall cause its controlled Affiliates not
to support, the business of TCE or TS or their Affiliates.
CLAUSE 8
[Intentionally Omitted]
CLAUSE 9
DETERMINATION OF TELEGATE EQUITY VALUE
9.1 Preliminary Determination. Whenever a determination of the
Telegate Equity Value is required pursuant to Clause 3.1, each of the Parent and
Metro, at its own expense, shall promptly engage an internationally recognized
investment banking firm (each, an "Appraiser") to determine the Telegate Equity
Value and shall notify the other party in writing of such selection. Within 30
days after the date on which the parties are required to engage their
Appraisers, each of the Parent and Metro shall provide the other with written
notice (a "Valuation Notice") of the Telegate Equity Value determined by its
Appraiser.
9.2 Final Determination. The Parent and Metro shall cause the
Appraisers to cooperate with each other to concur as to the Telegate Equity
Value within ten days of receipt by each of the Parent and Metro of a Valuation
Notice from the other. Such determination of the Telegate Equity Value by the
concurrence of the Appraisers shall be final and binding upon the parties,
absent manifest error. If the Appraisers cannot concur as to the Telegate Equity
Value within such ten-day period, the Parent and Metro shall cause the
Appraisers to select an independent and internationally recognized investment
banking firm acceptable to both appraisers (the "Independent Appraiser") to
resolve the dispute between the Appraisers and determine the Telegate Equity
Value. The fees and expenses resulting from the valuation by the Independent
Appraiser shall be borne equally by each of the Parent and Metro. The
determination of the Telegate Equity Value by the Independent Appraiser shall be
final and binding upon the parties, absent manifest error. No Appraiser or
Independent Appraiser shall have any liability to the Parent or Metro in
connection with any determination of the Telegate Equity Value absent gross
negligence or bad faith on the part of such Appraiser or Independent Appraiser.
9.3 Alternative Valuation. Notwithstanding the foregoing
Clauses 9.1 and 9.2, upon any occasion that a provision of this Agreement
requires the determination of the Telegate Equity Value, the parties hereto may
agree to deem the Telegate Equity Value to be any amount mutually determined by
them in good faith.
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CLAUSE 10
LEGENDS ON SHARE CERTIFICATES
10.1 Legends. Metro acknowledges that each certificate
representing any Telegate Exchange Shares, including, but not limited to, each
certificate issued upon the transfer of any Telegate Exchange Shares, shall bear
each of the legends required pursuant to this Clause 10.1.
(a) Each certificate representing Telegate Exchange Shares,
unless such Telegate Exchange Shares have been sold to the public pursuant to an
effective registration statement under the Securities Act or Rule 144 under the
Securities Act, or unless otherwise freely transferable without registration
under the Securities Act, shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED PURSUANT TO AN EFFECTIVE REG ISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED
UNDER ANY STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED,
SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS
(i) (A) SUCH DISPOSITION IS PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, (B) THE HOLDER HEREOF SHALL HAVE DELIVERED TO THE
COMPANY AN OPINION OF COUNSEL, WHICH OPINION AND COUNSEL SHALL
BE REASONABLY SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT
SUCH DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF
SUCH ACT OR (C) A NO-ACTION LETTER FROM THE SECURITIES AND
EXCHANGE COMMISSION, REASONABLY SATISFACTORY TO COUNSEL FOR
THE COMPANY, SHALL HAVE BEEN OBTAINED WITH RESPECT TO SUCH
DISPOSITION AND (ii) SUCH DISPOSITION IS IN COMPLIANCE WITH
ANY APPLICABLE STATE SECURITIES LAWS."
(b) Prior to April 1, 2001, each certificate representing
Telegate Exchange Shares shall bear the following legend:
"NEITHER THIS CERTIFICATE NOR THE SHARES
REPRESENTED BY IT ARE ASSIGNABLE OR OTHERWISE
TRANSFERRABLE PRIOR TO APRIL 1, 2001."
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CLAUSE 11
RESTRICTIONS ON TRANSFER
11.1 Restrictions on Transfer. Prior to April 1, 2001, neither
Metro nor Ligapart shall effect any Transfer of Covered Shares without the prior
written consent of the Company except to Metro's controlled Affiliates, provided
that Metro or Ligapart, as the case may be, shall deliver or cause to be
delivered to the Parent at the time of any such Transfer to a controlled
Affiliate a duly executed written acknowledgment by such controlled Affiliate
that such controlled Affiliate shall not effect any Transfer of any Covered
Shares without the prior written consent of the Parent except to Metro or a
controlled Affiliate of Metro from which a similar duly executed written
acknowledgment is received by the Parent. In addition, neither Metro nor any of
its controlled Affiliates shall effect any Transfer of any shares of capital
stock of any controlled Affiliate of Metro that holds any Covered Shares, as a
result of which Transfer such controlled Affiliate would cease to be a
controlled Affiliate of Metro, without the prior written consent of the Parent,
except to Metro or a controlled Affiliate of Metro from which the Parent has
received a duly executed acknowledgment that such controlled Affiliate is bound
by the terms of this Clause 11.
CLAUSE 12
[Intentionally Omitted]
CLAUSE 13
METRO COVENANT NOT TO COMPETE
13.1 Non-Competition. On and after June 10, 1998 through and
including the first anniversary of the expiration of the term of the Services
Agreement (the "Non-Compete Period"), Metro and its controlled Affiliates (which
shall not include Metro AG and controlled Affiliates) shall not operate or
manage, or acquire any equity interest in, any telecommunications business which
is engaged in telecommunications services of a type currently conducted by the
Company and which competes with the Company, other than the businesses set forth
in Schedule 13.1 (the "Specified Companies"), provided that Metro and its
controlled Affiliates (a) may acquire less than 5% of the outstanding equity
securities of a publicly traded company engaged in a competing business and (b)
may make a passive equity investment in any private company, such equity
interest not to exceed the greater of (i) 25% of the equity of such entity and
(ii) $2,000,000. During the Non-Compete Period, Metro shall give the Company at
least fourteen Business Days' prior written notice of any proposed joint
ventures, investments or other arrangements by Metro with a telecommunications
company, similar in nature to that contemplated by the Services Agreement, other
than the joint
14
ventures or arrangements with any Specified Company. The Company may, in its
sole discretion, by written notice to Metro no later than the tenth Business Day
after the Company's receipt of notice thereof, prohibit Metro from entering into
such proposed arrangement. Notwithstanding anything to the contrary in this
Clause 13.1, this Clause 13.1 shall not prohibit Metro's controlled Affiliates
from marketing and selling products and services competitive with the products
and services marketed and sold by the Company and its Affiliates.
CLAUSE 14
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Metro as follows:
14.1 Corporate Status; Subsidiaries. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of England.
14.2 Authorization, etc. The Company has full corporate power
and authority to execute and deliver this Agreement and the Services Agreement
and to consummate the transactions contemplated hereby and thereby and to
perform its obligations hereunder and thereunder. The execution and delivery of
this Agreement and the Services Agreement and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
requisite corporate action on the part of the Company. This Agreement and the
Services Agreement have been duly executed and delivered by the Company and
constitute the legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their respective terms.
14.3 Conflicts. The execution and delivery by the Company of
this Agreement and the Services Agreement and the consummation by the Company of
the transactions contemplated hereby and thereby, do not and will not conflict
with, or result in any violation of or default under (or any event that, with
notice or lapse of time or both, would constitute a default under), or give rise
to any right of termination, cancellation or acceleration of any obligation or
loss of material benefit under, or result in the creation of a Lien on any
property or assets of the Company pursuant to, any provision of (a) the
Memorandum or Articles of Association of the Company, (b) any mortgage,
indenture, loan agreement, note, bond, deed of trust, other agreement, com
mitment or obligation for the borrowing of money or the obtaining of credit,
lease or other agreement, contract, license, franchise, permit or instrument to
which the Company is a party or by which it may be bound, or (c) any judgment,
order, decree, law, statute, rule or regulation applicable to the Company, other
than, in the case of clauses (b) or (c), any conflicts, violations, defaults,
terminations, cancellations, accelerations,
15
losses of benefits or Liens that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.
14.4 Consents. Except for any Consents where the failure to
obtain such Consents, either in any individual case or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect, no Consent of any
court, Governmental Entity or third person is required to be obtained by the
Company in connection with the execution and delivery by the Company of this
Agreement or the Services Agreement or the consummation by the Company of the
transactions contemplated hereby and thereby.
14.5 Compliance with Laws. The businesses of the Company has
not been, and is not being, conducted in violation of its internal policies and
procedures or of any law, ordinance, regulation, judgment, order, decree,
license or permit of any Governmental Entity, except for possible violations
which individually or in the aggregate would not reasonably be expected to have
a Material Adverse Effect.
14.6 Litigation. There is no action, claim, suit, arbitration
or proceeding pending or, to the Company's knowledge, threatened against the
Company and there is no investigation pending or, to the Company's knowledge,
threatened against the Company, in each case, before any court or Governmental
Entity, that could have a Material Adverse Effect.
14.7 [Intentionally Omitted]
14.8 Investment Intention. In connection with any acquisition by the
Company pursuant to this Agreement of the Telegate Shares or the Twister Option,
the Company will confirm that it is acquiring the Telegate Shares or the Twister
Shares, as the case may be, solely for its own account for investment and not
with a view to or for sale in connection with any distribution thereof in
contravention of the Securities Act or any Applicable Securities Laws. The
Company further agrees that it will not, directly or indirectly, effect a
Transfer or offer, or solicit offers, to effect a Transfer of any Telegate
Shares or Twister Shares, except in compliance with the Securities Act, and the
rules and regulations of the SEC thereunder, and in compliance with applicable
state securities or "blue sky" laws and all other Applicable Securities Laws.
14.9 Ability to Bear Risk. The Company's financial situation
is such that it can afford to bear the economic risk of holding the Telegate
Shares and the Twister Shares for an indefinite period and the Company can
afford to suffer the complete loss of its investment in the Telegate Shares and
the Twister Shares.
16
14.10 Access to Information. The Company has been granted the
opportunity to ask questions of, and receive answers from, representatives of
Metro concerning the terms and conditions of the purchase of the Telegate Shares
and the Twister Shares and the Company's knowledge and experience in financial
and business matters is such that it is capable of evaluating the risks of its
investment in the Telegate Shares and the Twister Shares.
CLAUSE 15
REPRESENTATIONS AND WARRANTIES OF THE PARENT
The Parent represents and warrants to Metro as follows:
15.1 Corporate Status. The Parent is a corporation duly
organized, validly existing and in good standing under the laws of Bermuda.
15.2 Authorization, etc. The Parent has full corporate power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby and to perform its obligations hereunder. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all requisite
corporate action on the part of the Parent. This Agreement has been duly
executed and delivered by the Parent and constitutes the legal, valid and
binding obligation of the Parent enforceable against the Parent in accordance
with its terms.
15.3 Conflicts. The execution and delivery by the Parent of
this Agreement and the consummation by the Parent of the transactions
contemplated hereby, do not and will not conflict with, or result in any
violation of or default under (or any event that, with notice or lapse of time
or both, would constitute a default under), or give rise to any right of
termination, cancellation or acceleration of any obligation or loss of material
benefit under, or result in the creation of a Lien on any property or assets of
the Parent pursuant to, any provision of (a) the Certificate of Incorporation,
Memorandum of Association or Bye-Laws of the Parent, (b) any mortgage,
indenture, loan agreement, note, bond, deed of trust, other agreement,
commitment or obligation for the borrowing of money or the obtaining of credit,
lease or other agreement, contract, license, franchise, permit or instrument to
which the Parent is a party or by which it may be bound, or (c) any judgment,
order, decree, law, statute, rule or regulation applicable to the Parent, other
than, in the case of clauses (b) or (c), any conflicts, violations, defaults,
terminations, cancellations, accelerations, losses of benefits or Liens that,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect.
17
15.4 Consents. Except for any Consents where the failure to
obtain such Consents, either in any individual case or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect, no Consent of any
court, Governmental Entity or third person is required to be obtained by the
Parent in connection with the execution and delivery by the Parent of this
Agreement or the consummation by the Parent of the transactions contemplated
hereby.
15.5 Compliance with Laws. The businesses of the Parent has
not been, and is not being, conducted in violation of its internal policies and
procedures or of any law, ordinance, regulation, judgment, order, decree,
license or permit of any Governmental Entity, except for possible violations
which individually or in the aggregate would not reasonably be expected to have
a Material Adverse Effect.
15.6 Litigation. There is no action, claim, suit, arbitration
or proceeding pending or, to the Parent's knowledge, threatened against the
Parent and there is no investigation pending or, to the Parent's knowledge,
threatened against the Parent, in each case, before any court or Governmental
Entity, that could have a Material Adverse Effect.
15.7 Registration Statement on Form S-4. The Parent's
Registration Statement on Form S-4 (file no. 33349857), as amended by Amendment
No. 1 to Registration Statement on Form S-4 and by Amendment No. 2 to
Registration Statement on Form S-4 (the "Registration Statement"), was declared
effective on May 12, 1998. As of the date hereof, the Registration Statement,
taken together with all information that, as of the date hereof, is publicly
available or has been previously disclosed to Metro, does not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
CLAUSE 16
REPRESENTATIONS AND WARRANTIES OF METRO
Metro represents and warrants to the Company and the Parent as
follows:
16.1 Corporate Status. Metro is a corporation duly organized,
validly existing and in good standing under the laws of Switzerland.
16.2 Authorization, etc. Metro has full corporate power and
authority to execute and deliver this Agreement and the Services Agreement and
to consummate the transactions contemplated hereby and thereby and to perform
its obligations hereunder and thereunder. The execution and delivery of this
Agreement and the Services Agreement and
18
the consummation of the transactions contemplated hereby and thereby have been
duly authorized by all requisite corporate action on the part of Metro. This
Agreement and the Services Agreement have been duly executed and delivered by
Metro and constitute the legal, valid and binding obligations of Metro
enforceable against Metro in accordance with their respective terms.
16.3 Conflicts. The execution and delivery by Metro of this
Agreement and the Services Agreement and the consummation by Metro of the
transactions con templated hereby and thereby, do not and will not conflict
with, or result in any violation of or default under (or any event that, with
notice or lapse of time or both, would constitute a default under), or give rise
to any right of termination, cancellation or acceleration of any obligation or
loss of material benefit under, or result in the creation of a Lien on any
property or assets of Metro pursuant to, any provision of (a) the Organizational
Documents of Metro, (b) any mortgage, indenture, loan agreement, note, bond,
deed of trust, other agreement, commitment or obligation for the borrowing of
money or the obtaining of credit, lease or other agreement, contract, license,
franchise, permit or instrument to which Metro is a party or by which it may be
bound, or (c) any judgment, order, decree, law, statute, rule or regulation
applicable to Metro, other than, in the case of clauses (b) or (c), any
conflicts, violations, defaults, terminations, cancellations, accelerations,
losses of benefits or Liens that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.
16.4 Consents. Except for any Consents where the failure to
obtain such Consents, either in any individual case or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect, no Consent of or
with any court, Governmental Entity or third person is required to be obtained
by Metro in connection with the execution and delivery by Metro of this
Agreement or the Services Agreement or the consummation by Metro of the
transactions contemplated hereby and thereby.
16.5 Compliance with Laws. The businesses of Metro has not
been, and is not being, conducted in violation of its internal policies and
procedures or of any law, ordinance, regulation, judgment, order, decree,
license or permit of any Governmental Entity, except for possible violations
which individually or in the aggregate would not reasonably be expected to have
a Material Adverse Effect.
16.6 Litigation. There is no action, claim, suit, arbitration
or proceeding pending or, to Metro's knowledge, threatened against Metro and
there is no investigation pending or, to Metro's knowledge, threatened against
Metro, in each case, before any court or Governmental Entity, that could have a
Material Adverse Effect.
16.7 Twister Shares; Telegate Shares. (a) As of the date
hereof, the authorized share capital of each of TCE and TS is CHF100,000, all of
which has been issued and is
19
represented by 100 shares of CHF1,000 each, all of which (except for 49% of the
shares of TCE) are owned by Metro and its controlled Affiliates free and clear
of any Liens other than the Right of First Refusal.
(b) The Telegate Shares represent 25%, on a fully diluted
basis, of the share ownership of Telegate AG and are owned free and clear of any
Liens by Metro Vermogensverwaltung GmbH & Co. Kommanditsgesellschaft, ▇▇▇▇▇▇
Telemarketing und Vertrieb GmbH & Co. KG and Invision AG, Affiliates of Metro.
Metro has the authority to cause the Telegate Shares to be delivered in
accordance with the provisions of Clause 3.
16.8 Investment Intention. Metro acquired the Subscription
Shares, and, in connection with the acquisition by Metro pursuant to this
Agreement of any Telegate Exchange Shares, Metro will confirm that it is
acquiring such Telegate Exchange Shares, solely for its own account for
investment and not with a view to or for sale in connection with any
distribution thereof in contravention of the Securities Act or any Applicable
Securities Laws. Metro agrees that it will not, directly or in directly, effect
a Transfer or offer, or solicit offers, to effect a Transfer of any Telegate
Exchange Shares, except in compliance with the Securities Act, and the rules and
regulations of the SEC thereunder, and in compliance with applicable state
securities or "blue sky" laws and all other Applicable Securities Laws. Metro
further agrees that it will not effect any Transfer of any Telegate Exchange
Shares unless (a) (i) such Transfer is pursuant to an effective registration
statement under the Securities Act, (ii) Metro shall have delivered to the
Parent an opinion of counsel, which opinion and counsel shall be reasonably
satisfactory to the Parent, to the effect that such Transfer is exempt from the
provisions of Section 5 of the Securities Act or (iii) a no-action letter from
the SEC, reasonably satisfactory to counsel for the Parent, shall have been
obtained with respect to such Transfer and (b) such Transfer is in compliance
with any Applicable Securities Laws.
16.9 Ability to Bear Risk. At the time of its acquisition of
the Subscription Shares, Metro's financial situation was such that it could
afford to bear the economic risk of holding the Subscription Shares for an
indefinite period and could afford to suffer the complete loss of its investment
in the Subscription Shares. Metro's financial situation is such that it can
afford to bear the economic risk of holding any Telegate Exchange Shares for an
indefinite period and Metro can afford to suffer the complete loss of its
investment in any Telegate Exchange Shares.
20
16.10 Access to Information. Prior to its acquisition of the
Subscription Shares, Metro was granted the opportunity to ask questions of, and
receive answers from, representatives of the Company concerning the terms and
conditions of the purchase of the Subscription Shares and Metro's knowledge and
experience in financial and business matters was such that it was capable of
evaluating the risks of its investment in the Subscription Shares. Metro has
been granted the opportunity to ask questions of, and receive answers from,
representatives of the Parent concerning the terms and conditions of the
purchase of any Covered Shares, and Metro's knowledge and experience in
financial and business matters is such that it is capable of evaluating the
risks of its investment in the Telegate Shares.
CLAUSE 17
CONDUCT OF BUSINESS
17.1 Conduct of Telecommunications Business. The Parent will
conduct its telecommunications business (as currently conducted) in Europe
exclusively through the Company and its Subsidiaries. The Parent will sell the
Internet telephony services of Delta Three, Inc. ("Delta Three") in Europe
(other than in Denmark) through the Company and its Subsidiaries.
Notwithstanding the foregoing, nothing in this Clause 17.1 shall prohibit Delta
Three from selling its Internet telephony services in Europe through Persons
other than Company and its Subsidiaries; provided, that, if it does so (other
than pursuant to existing arrangements), then Delta Three and the Company shall
arrange for the Company to be compensated for the lost opportunity resulting
therefrom.
CLAUSE 18
MISCELLANEOUS
18.1 Expenses. Except as otherwise specifically provided for
in this Agreement, each party hereto shall bear their respective expenses, costs
and fees (including attorneys', auditors' and financing fees, if any) in
connection with the transactions contemplated hereby and by the Escrow Agreement
and the Services Agreement, whether or not the transactions contemplated hereby
shall be consummated.
18.2 Notices. All notices and other communications made in
connection with this Agreement shall be in writing. Any notice or other
communication in connection herewith shall be deemed duly given (a) two Business
Days after it is sent by express, registered or certified mail, return receipt
requested, postage prepaid or (b) one Business Day after it is sent by overnight
courier guaranteeing next day delivery, in each case, addressed as follows:
21
(i) if to any RSL Com Party, to such party:
▇/▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: 212-317-0600
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
with a copy to:
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇, Esq.
(ii) if to Metro or any Metro Telegate Party, to:
Metro Holding AG
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Telecopy: 04-41-41-768-7579
Telephone: ▇▇-▇▇-▇▇-▇▇▇-▇▇▇▇
Attention: Hugo Truetsch, Esq.
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Green, P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
or, in each case, at such other address as may be specified in writing to the
other parties hereto. Any party may give any notice or other communication in
connection herewith using any other means (including, but not limited to,
personal delivery, messenger service, telecopy, telex or ordinary mail), but no
such notice or other communication shall be deemed to have
22
been duly given unless and until it is actually received by the individual for
whom it is intended.
18.3 Headings. The headings contained in this Agreement are
for purposes of convenience only and shall not affect the meaning or
interpretation of this Agreement.
18.4 Entire Agreement. This Agreement (including the Exhibits
and Schedules referred to herein or delivered hereunder), together with the
Services Agreement and the Exchange Agreement, constitute the entire agreement,
and supersede all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
18.5 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
18.6 Severability. If any provision, including any phrase,
sentence, clause, section or subsection, of this Agreement is invalid,
inoperative or unenforceable for any reason, such circumstances shall not have
the effect of rendering such provisions in question invalid, inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision herein contained invalid, inoperative, or unenforceable to any extent
whatsoever.
18.7 Governing Law. THIS AGREEMENT SHALL BE GOVERNED IN ALL
RESPECTS, INCLUDING, BUT NOT LIMITED TO, AS TO VALIDITY, INTERPRETATION AND
EFFECT, BY THE LAWS OF NEW YORK.
18.8 Jurisdiction and Venue.
18.9 Consent to Jurisdiction. Each of the parties hereto
irrevocably (a) agrees that any legal suit, action or proceeding arising out of
or based upon this Agreement or the transactions contemplated hereby may be
instituted in any New York Court, (b) waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding and (c) submits to the exclusive
jurisdiction of such courts in any such suit, action or proceeding.
18.10 The Metro Agent. Each of Metro and each Metro Telegate
Party hereby appoints ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Green, P.C., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., as its authorized agent
(the "Metro Authorized Agent") upon whom process may be served in any such
action arising out of or based on this Agreement or the transactions
contemplated hereby which may be instituted in any New York Court by any RSL
23
Com Party, expressly consents to the jurisdiction of any such court in respect
of any such action, and waives any other requirements of or objections to
personal jurisdiction with respect thereto. Such appointment shall be
irrevocable. Each of Metro and each Metro Telegate Party represents and warrants
that the Metro Authorized Agent has agreed to act as such agent for service of
process and agrees to take any and all action, including the filing of any and
all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Metro Authorized Agent and written notice of such service to Metro or any Metro
Telegate Party, as the case may be, shall be deemed, in every respect, effective
service of process upon Metro or such Metro Telegate Party, as the case may be.
18.11 The Company Agent. Each RSL Com Party hereby appoints
RSL Communications N. America, Inc. ("RSL USA"), ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its authorized agent (the "Company Authorized
Agent") upon whom process may be served in any such action arising out of or
based on this Agreement or the transactions contemplated hereby which may be
instituted in any New York, New York court by Metro or any Metro Telegate Party,
expressly consents to the jurisdiction of any such court in respect of any such
action, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. Such appointment shall be irrevocable. Each
RSL Com Party represents and warrants that the Company Authorized Agent has
agreed to act as such agent for service of process and agrees to take any and
all action, including the filing of any and all documents and instruments, that
may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Company Authorized Agent and written
notice of such service to any RSL Com Party shall be deemed, in every respect,
effective service of process upon such RSL Com Party.
18.12 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns.
18.13 Assignment. This Agreement shall not be assignable by
any party without the prior written consent of other parties. Any purported
assignment in violation of this Clause 18.10 shall be void.
18.14 No Third Party Beneficiaries. Except as expressly
provided herein, nothing in this Agreement shall confer any rights upon any
Person other than the parties hereto and each such party's respective heirs,
successors and permitted assigns.
18.15 Amendment; Waivers, etc. No amendment, modification or
discharge of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, discharge or waiver is sought. Any
such waiver shall constitute a waiver only with respect to
24
the specific matter described in such writing and shall in no way impair the
rights of the party granting such waiver in any other respect or at any other
time. The representations and warranties of the parties hereto shall not be
affected or deemed waived by reason of any investigation made by or on behalf of
any other party (including, but not limited to, by any of its advisors, consul
tants or representatives) or by reason of the fact that such other party or any
such advisors, consultants or representatives knew or should have known that any
such representation or warranty is or might be inaccurate.
25
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement by their authorized representatives as of the date first above
written.
RSL COM EUROPE, LTD.
By:
--------------------------------------
Name:
Title:
RSL COMMUNICATIONS, Ltd.
By:
--------------------------------------
Name:
Title:
METRO HOLDING AG
By:
--------------------------------------
Name:
Title:
for the purpose of Clauses 3.1, 3.2, 3.3,
3.4 and 3.5:
RSL COM DEUTSCHLAND GMBH
By:
--------------------------------------
Name:
Title:
METRO VERMOGENSVERWALTUNG
GMBH & CO. KOMMANDITSGESELLSCHAFT
By:
--------------------------------------
Name:
Title:
▇▇▇▇▇▇ TELEMARKETING AND
VERTRIEB GMBH & CO. KG
By:
--------------------------------------
Name:
Title:
INVISION AG
By:
--------------------------------------
Name:
Title:
27
SCHEDULE 13.1
CERTAIN JOINT VENTURES AND ARRANGEMENTS
Company Share(%)
primus-online Handel und ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ & ▇▇. ▇▇, ▇▇▇▇ ▇▇
Pago Handelsgesellschaft GmbH & Co. KG, Koln 100
quantum vorteile direkt ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ & ▇▇. ▇▇, ▇▇▇▇ 100
Satway Business Television GmbH & Co. KG, Koln 100
MSG Media Support Group GmbH, Koln 100
metronet Kommunikationsdienste GmbH & Co. KG, Koln 100
Experian Deutschland GmbH, Hamburg 50
Telegate Holding GmbH, Munchen 45.82
▇▇▇▇▇▇ Verwaltungs GmbH & Co. KG, Ettlingen 50
debitel Kommunikationstechnik GmbH & Co. KG,
Stuttgart 35.93
FreeCom Distribution & Service GmbH, Saarbrucken 51
Primus Digital TV GmbH, Koln 100
Micatel Teleservice GmbH & Co. KG, Dusseldorf 100
primus-online Handel und Dienstleistung Verwaltung
GmbH, Koln 100
Pago Handelsgesellschaft mbH, Koln 100
quantum vorteile direkt Verbraucherservice
Verwaltungs GmbH, Koln ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ GmbH, Koln 100
metronet Kommunikationsdienste ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ GmbH, Ettlingen 50
debitel Kommunikationsdienste Verwaltung GmbH,
Stuttgart 35.93
Micatel Teleservice GmbH, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇ 65
Interline Kommunikationsdienste GmbH, Dusseldorf 100
Twister Communications Network AG, Uetikon 100
TCE Network AG, Baar 51
Ozemail Ltd. 5.2