EXHIBIT 10.15
EXECUTION COPY
ASSIGNMENT AGREEMENT
THIS AGREEMENT (the "Agreement") made as of September 30, 1999 by and
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among Infonet Services Corporation, a Delaware Corporation ("ISC" and, together
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with its Affiliates, "Infonet"), AUCS Communications Services v.o.f., a general
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partnership organized under the laws of The Netherlands ("AUCS"), and herein
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represented by AUCS N.V. (as hereinafter defined), AUCS Communications Services
N.V., a company organized under the laws of The Netherlands ("AUCS N.V.", and
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AUCS and AUCS N.V. collectively together with all of their direct and indirect
subsidiaries, the "AUCS Entities" and each an "AUCS Entity"), Unisource Pan-
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European Services B.V., a company organized under the laws of The Netherlands
("UPES"), Unisource N.V., a company organized under the laws of The Netherlands
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("Unisource"), Briap B.V., a company organized under the laws of The Netherlands
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("Unisource Nominee" and collectively with Unisource and UPES, the "Unisource
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Entities"), the stockholders of Unisource, Telia AB, a company organized under
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the laws of Sweden ("Telia"), KPN Telecom B.V., a company organized under the
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laws of The Netherlands ("KPN"), and Swisscom AG, a company organized under the
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laws of Switzerland ("Swisscom" and, together with Telia and KPN, the "Indirect
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AUCS Stockholders") (each, a "Party" and collectively, the "Parties").
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WHEREAS, the AT&T exit from its relationships with the AUCS Entities
has been consummated prior to the date hereof;
WHEREAS, the AUCS Entities have entered into a series of contracts
identified on Schedule A hereto for the distribution of certain
telecommunications services, as well as certain contracts directly with end
customers and other distributors (the "Contracts");
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WHEREAS, Infonet is in the business of providing products and
telecommunications services of a type and nature similar to the products and
services called for by the Non-AT&T Customers;
WHEREAS, the AUCS Entities wish to have ISC assume the
responsibilities of the AUCS Entities under the Contracts and under any other
contracts with Non-AT&T Customers to enable the AUCS Entities to, among other
things, focus on providing services to their other customers;
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:
1. Definitions
Certain Definitions. As used herein, the terms below shall have the
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following meanings:
"Affiliates" shall have the meaning set forth on Schedule C;
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"Agreement" shall have the meaning set forth in the Introduction;
"Arbitrators" shall have the meaning set forth in Section 5.1(c);
"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;
"AT&T" shall mean AT&T Corporation and its subsidiaries;
"AT&T Agreements" means those agreements set forth in Schedule B hereto;
"AUCS" shall have the meaning set forth in the Introduction;
"AUCS Entity" and "AUCS Entities" shall have the meanings set forth in the
Introduction;
"AUCS Indemnified Party" shall have the meaning set forth in Section 4.3;
"AUCS N.V." shall have the meaning set forth in the Introduction;
"Confidential Information" shall have the meaning set forth in Section 5.3;
"Contracts" shall have the meaning set forth in the Recitals;
"Contract Services" means the products and services provided by the AUCS
Entities under the Contracts and the New Contracts;
"Disclosing Party" shall have the meaning set forth in Section 5.3;
"Effective Date" shall mean October 01, 1999, 00:001 a.m.;
"Guarantors" shall have the meaning set forth in Section 6.1;
"Indemnifying Party" shall have the meaning set forth in Section 4.4;
"Indirect AUCS Stockholders" shall have the meaning set forth in the
Introduction;
"Infonet" shall have the meaning set forth in the Introduction;
"ISC" shall have the meaning set forth in the Introduction;
"ISC Indemnified Party" shall have the meaning set forth in Section 4.2;
"KPN" shall have the meaning set forth in the Introduction;
"LCIA" shall have the meaning set forth in Section 5.1(b);
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"Losses" means any and all liabilities, damages, costs and expenses
(including, without limitation, counsel fees and expenses);
"New Contracts" shall have the meaning set forth in Section 2.2;
"Non-AT&T Customers" means all customers of the AUCS Entities, from time to
time, including for the avoidance of doubt customers party to Contracts and
any New Contracts, except for AT&T and any other customers of the AUCS
Entities which receive Contract Services pursuant to the AT&T Agreements or
which have an agreement with an AUCS Entity for the provision of Contract
Services which has arisen directly under the AT&T Agreements;
"Party" and "Parties" shall have the meanings set forth in the
Introduction;
"Swisscom" shall have the meaning set forth in the Introduction;
"Telia" shall have the meaning set forth in the Introduction;
"Unisource" shall have the meaning set forth in the Introduction;
"Unisource Entities" shall have the meaning set forth in the Introduction;
"Unisource Nominee" shall have the meaning set forth in the Introduction;
and
"UPES" shall have the meaning set forth in the Introduction.
2. SERVICES
2.1 Effective as of the Effective Date, the AUCS Entities, for good and
valuable consideration, assign to and transfer to ISC all of their rights and
obligations under the Contracts and ISC hereby assumes all such rights and
obligations under the Contracts arising after the Effective Date. Each Indirect
AUCS Stockholder hereby consents (for itself and on behalf of its subsidiaries)
to the assignment and transfer to ISC of all of such Contracts to which it or
any of its subsidiaries is a party. Each Party to this Agreement, other than
ISC shall use all reasonable endeavors to obtain all necessary consents from
Non-AT&T Customers (including those set forth in Schedule A) to the assignment
of their respective Contracts to ISC.
2.2 After the Effective Date Infonet shall provide or cause to be provided
Contract Services pursuant to the Contracts, and such other services as from
time-to-time deemed appropriate by Infonet, to the Non-AT&T Customers under the
terms and conditions set forth in the relevant Contracts. For the avoidance of
doubt, Infonet shall provide or cause to be provided Contract Services and such
other services, as from time-to-time deemed appropriate by Infonet, to such
other new customers, distributors and resellers of the AUCS Entities as may be
agreed from time to time between any AUCS Entity and ISC ("New Contracts") under
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the terms and conditions set forth in the relevant contract. Infonet shall
provide or cause to be provided Contract Services, and such other services as
from time to time deemed appropriate by Infonet, under the terms and conditions
of any agreements which Infonet may enter into amending or
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replacing any of the Contracts with the Non-AT&T Customers under which Infonet
was to provide or cause to be provided Contract Services.
2.3 ISC will, and the AUCS Entities, the Unisource Entities and the
Indirect AUCS Stockholders will, if requested by ISC, take all reasonable action
to induce the Non-AT&T Customers to enter into contracts with Infonet on
Infonet's customary terms and conditions.
2.4 To the extent practicable, Infonet may provide the Contract Services
and any other services under its name and Infonet shall procure that any
relevant affiliate shall utilize any such trademarks and tradenames chosen by
ISC to brand the Contract Services or any other services provided.
2.5 ISC shall have the right, in its sole discretion, upon 60 days written
notice to AUCS to replace at any time and from time to time any AUCS products,
platform, services, equipment or customer support which are used to provide
Contract Services to Non-AT&T Customers pursuant to Contracts or New Contracts
with Infonet's products, platforms, services, equipment or customer support as
determined by Infonet; provided that the replacement products, platforms,
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services, equipment or customer support provided shall be permitted under the
relevant Contract or New Contract or be otherwise satisfactory to such affected
Non-AT&T Customer.
2.6 Infonet shall provide or cause to be provided sufficient resources to
furnish the Contract Services under this Agreement. The Indirect AUCS
Stockholders shall maintain their resources insofar as necessary to satisfy
their obligations under their respective Contracts.
2.7 The Parties hereby consent to Infonet contracting with any Non-AT&T
Customer to provide any services. The Parties acknowledge that this may result
in the termination of existing commercial relationships between the AUCS
Entities and any Non-AT&T Customer and shall raise no objection to any such
termination. The Parties agree that from time to time ISC and Infonet may
terminate or amend any such contracts that they enter into with any Non-AT&T
Customer but always observing the terms of the contract with such Non-AT&T
Customer.
2.8 The Parties shall use all reasonable endeavors to cause the Non-AT&T
Customers to enter into such documents as are necessary to evidence the
assignments and transfers described in this Article 2, including amending the
Contracts with distributors to non-exclusive arrangements.
2.9 After the Effective Date, the AUCS Entities shall hold any payments
received by any of them from any customer as payment for services provided by
Infonet in trust for ISC in a bank account or accounts to be specified by ISC.
No AUCS Entity shall withdraw any monies from such aforementioned accounts
without the prior approval of ISC and shall pay over such monies to ISC at ISC's
request.
3. REPRESENTATIONS AND WARRANTIES
3.1 Representations of the AUCS Entities, Unisource Entities and the
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Indirect AUCS Stockholders. Each of the AUCS Entities party to this Agreement,
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the Unisource Entities and
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the Indirect AUCS Stockholders severally represents and warrants to ISC as at
the Effective Date that:
(a) All material Contracts currently in force between the AUCS Entities
and its customers, other than the AT&T Agreements, are referred to in Schedule A
and the Contracts referred to in Schedule A are currently in full force and
effect.
(b) In the case of an Indirect AUCS Stockholder, a Unisource Entity and
AUCS N.V., it 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 business or ability to perform its
obligations under this Agreement. In the case of AUCS, it is a general
partnership duly formed, validly existing and in good standing under the laws of
The Netherlands, and is in good standing in each jurisdiction where failure to
be in good standing would have a material adverse effect on its business or
ability to perform its obligations under this Agreement;
(c) In the case of an Indirect AUCS Stockholder, a Unisource Entity and
AUCS N.V., it has all necessary corporate power and authority, and in the case
of AUCS, AUCS has all the necessary partnership power and authority, to own,
lease and operate its assets and to carry on its business;
(d) In the case of an Indirect AUCS Stockholder, a Unisource Entity and
AUCS N.V., it has all necessary corporate power and authority to enter into this
Agreement and to perform its obligations hereunder, and the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on its part.
In the case of AUCS, it has all necessary partnership power and authority to
enter into this Agreement and to perform its obligations hereunder, and the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
action on its part;
(e) This Agreement constitutes the legal, valid and binding obligation of
it, enforceable against it 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 (including
good faith) or remedies;
(f) It is not a party to, and is not 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 Agreement or consummation of the transactions contemplated
hereby, where such contravention or breach would have a material adverse effect
on the business, operations or financial condition of the AUCS Entities or the
transactions contemplated by this Agreement;
(g) Except for any Form A/B filing by certain of the Parties to the
European Commission in relation to the transactions contemplated between the
Parties and except as provided by Section 2.8 of this Agreement, no consent,
approval or authorization of, or declaration or filing with, any governmental or
regulatory authority, or any other person or
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entity, is required to be made or obtained by it that has not been made or
obtained in connection with the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby except
where such failure to make or obtain such consent, approval, authorization,
declaration or filing would not have a material adverse effect on the business,
operations or financial condition of the AUCS Entities or the transactions
contemplated by this Agreement;
(h) It has not 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 Infonet or any AUCS Entity to pay any finder's
fee, brokerage fees, commission or similar payment in connection with the
transactions contemplated hereby.
3.2 Representations of ISC. ISC represents and warrants to AUCS that:
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(a) It is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and is in good standing in each
jurisdiction where failure to be in good standing would have a material adverse
effect on its business or ability to perform its obligations under this
Agreement;
(b) It has all necessary corporate power and authority to enter into this
Agreement and to perform its obligations hereunder, and the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on its part
and it has all the necessary corporate power and authority to own, lease and
operate its assets and to carry on its business;
(c) This Agreement constitutes the legal, valid and binding obligation of
ISC, enforceable against it in accordance with its terms;
(d) It is not a party to, and is not 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 Agreement or consummation of the transactions contemplated
hereby;
(e) Except for any Form A/B filing by certain of the Parties to the
European Commission in relation to the transactions contemplated between the
Parties and except as provided by Section 2.8 of this Agreement, 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 that has not been made or obtained in connection with the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby;
(f) It has not 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 any party hereto, other than ISC, to pay any
finder's fee, brokerage fees, commission or similar payment in connection with
the transactions contemplated hereby.
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4. LIMITATION OF LIABILITY AND INDEMNIFICATION
4.1 Liability
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(a) Limitation THE PARTIES AGREE THAT NO PARTY WILL BE HELD TO ANY
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WARRANTIES DIRECTLY OR INDIRECTLY RELATED TO SERVICES, SYSTEMS, PRODUCTS AND
CONTRACTS, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTY
OF SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE OTHER THAN THOSE
EXPRESSLY SET FORTH IN THIS AGREEMENT. The liability of ISC for claims arising
from the furnishing of Contract Services or its failure to furnish Contract
Services pursuant to this Agreement or from the interruption or loss of use
thereof shall be limited to, and the AUCS Entities', the Unisource Entities' and
the Indirect AUCS Stockholders' exclusive remedy shall be: (i) correction of
errors of which ISC has received written notice and proof within 30 days of
occurrence; or (ii) where such correction is not practicable, the AUCS Entities,
the Unisource Entities and the Indirect AUCS Stockholders shall be entitled only
to an equitable credit not to exceed the charges invoiced to such customer for
that portion of the Contract Services which produced the erroneous result.
(b) Consequential Loss. IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY
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INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT
LIMITED TO, LOSS OF USE, REVENUE, OR PROFIT, EVEN WHERE THE OTHER PARTY HAD BEEN
ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. No Party
nor the owner of any computer programs licensed to it shall be responsible for
any application of the results obtained from the use of any computer programs or
equipment or for unintended or unforeseen results obtained by any customer in
the use of such programs.
4.2 Indemnity to Infonet.
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(a) Subject to Section 4.1 above, each of the AUCS Entities jointly and
severally, the Unisource Entities severally and each of the Indirect AUCS
Stockholders severally indemnifies and holds harmless Infonet and their
respective stockholders, members, officers, directors, employees and agents
(individually, an "ISC Indemnified Party" and, collectively, the "ISC
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Indemnified Parties") from and against any and all Losses incurred by such ISC
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Indemnified Party or ISC Indemnified Parties by reason of, or resulting from,
(i) the breach of any representation, warranty or covenant made by any of the
AUCS Entities, the Unisource Entities or any of the Indirect AUCS Stockholders
in this Agreement, (ii) the assignment or transfer of any Contract or New
Contract as contemplated by this Agreement, or (iii) any breach of or failure to
perform or sum owing under any Contract incurred prior to the Effective Date;
provided that none of the AUCS Entities, the Unisource Entities or the Indirect
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AUCS Stockholders will be liable to any ISC Indemnified Party pursuant to this
Section 4.2(a), (i) unless the aggregate amount otherwise due to the ISC
Indemnified Parties exceeds on a cumulative basis Euro 100,000 (one hundred
thousand Euro) and (ii) if, but only to the extent that, such Losses are
incurred as a direct result of any willful misconduct or negligence on the part
of ISC or the breach by ISC of any of its responsibilities, warranties or
covenants expressly set forth in this Agreement.
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(b) Each of the Indirect AUCS Stockholders severally indemnifies and holds
harmless the ISC Indemnified Parties for any liabilities arising in connection
with the employment agreements and employment relationships between the AUCS
Entities and their employees, former employees, and/or other persons in any
jurisdiction, including but not limited to any liability under the EC Acquired
Rights Directive (Business Transfer Directive 77(187)) or any domestic
derivative including articles 7:662-666 of the Dutch Civil Code, and for any
fiscal, pension, social security or other liabilities (including but not limited
to liability on account of "inlenersaansprakelijkheid") relating to the
employees, former employees, workers and/or other persons involved with the AUCS
Entities and, similarly, with regard to all and any such liabilities which arise
in connection with or as a result of the assignment or transfer to Infonet of
any Contracts, or arising as a result and/or out of any New Contracts.
4.3 Indemnity to Unisource.
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(a) Subject to Section 4.1 above, ISC indemnifies and holds harmless the
Unisource Entities, the AUCS Entities and the Indirect AUCS Stockholders, and
their respective officers, directors, employees and agents (individually, an
"AUCS Indemnified Party" and, collectively, the "AUCS Indemnified Parties" and
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together with the ISC Indemnified Parties, the "Indemnified Parties") from and
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against any and all Losses incurred by such AUCS Indemnified Party or AUCS
Indemnified Parties by reason of, or resulting from, the breach of any
representation, warranty or covenant made by ISC in this Agreement, provided
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that ISC will not be liable to any AUCS Indemnified Party pursuant to this
Section 4.3(a), (i) unless the aggregate amount otherwise due the AUCS
Indemnified Parties exceeds on a cumulative basis Euro 100,000 (one hundred
thousand Euro) and (ii) if, but only to the extent that such Losses are incurred
as a direct result of any willful misconduct or negligence on the part of any
AUCS Entity, any Unisource Entity or any Indirect AUCS Stockholder or the breach
by any of the foregoing of any of their respective representations, warranties
or covenants expressly set forth in this Agreement.
4.4 Indemnification Procedures. In the case of any claim asserted by a
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third party against an Indemnified Party, notice shall be given by the
Indemnified Party to the party required to provide indemnification (the
"Indemnifying Party") promptly after such Indemnified Party has actual knowledge
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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
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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 Agreement 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
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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. 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 Section 4.4
and the records of each shall be available to the other with respect to such
defence.
5. MISCELLANEOUS
5.1 Governing Law and Arbitration.
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(a) This Agreement 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 Agreement shall be decided exclusively in accordance with English law;
provided that all such disputes shall be referred, in the first instance, to the
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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 is
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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 are deemed to be
incorporated by reference to this Section 5.1(b).
(c) Any arbitration commenced pursuant to Section 5.1(b) 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
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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 5.1(b) shall
not preclude either party from obtaining interim relief on an urgent basis from
a court of competent jurisdiction pending any decision of the Arbitrators.
(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
Agreement and shall remain in effect despite any invalidity for any reason of
this Agreement.
5.2 General Cooperation; Further Assurances. Each Party, at its expense,
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shall promptly and duly execute and deliver to the other Parties such further
documents and assurances and take such further action as the other Parties may
from time to time reasonably request in writing in order to carry out more
effectively the intent and purpose of this Agreement (including, without
limitation, any applications, documents and reports required by any governmental
authority).
5.3 Confidential Information. While this Agreement is in effect and for a
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period of 36 calendar months thereafter the Parties will hold in confidence the
terms and provisions of this Agreement, the Contracts and the New Contracts
(collectively the "Confidential Information"). The Parties hereby acknowledge
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and agree that the Confidential Information is confidential and proprietary and
is not to be disclosed to third persons without the prior written consent of
both AUCS and ISC. The Parties shall not disclose such Confidential Information
to any third party (other than to officers, directors, employees and agents of
AUCS and ISC, each of whom is bound by this Section 5.3) except:
(a) to the extent necessary to comply with applicable law or the valid
order of a governmental agency or court of competent jurisdiction; provided,
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however, that the Party making such disclosure shall seek confidential treatment
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of said information from such third parties;
(b) as part of its normal reporting or review procedure to regulatory
agencies, its parent company, its auditors and its attorneys; provided that the
Party making such disclosure to any such regulatory agency shall give the other
party advance written notice of any disclosure, shall seek confidential
treatment of such information and shall use commercially reasonable efforts to
cooperate with the other party in seeking confidential treatment of such
information; provided that any other third party (not being a regulatory agency)
to whom disclosure is made agrees to the confidential treatment of such
information;
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(c) in order to enforce its rights and perform its obligations pursuant to
this Agreement, including obtaining any necessary government authorizations with
respect to this Agreement;
(d) to the extent required by any public offering of securities of ISC in
any jurisdiction;
(e) pursuant to the disclosure requirements of the U.S. Securities Act of
1933 and the U.S. Securities Exchange Act of 1934 and any similar legislation in
any jurisdiction, in each case as amended and the rules and regulations
promulgated thereunder; and
(f) to the extent necessary to obtain appropriate insurance, to its
insurance agent; provided that such agent agrees to the confidential treatment
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of such information.
In the event that any Party is requested (the "Disclosing Party")
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pursuant to, or becomes compelled by, applicable law, regulation or legal
process to disclose any Confidential Information, the Disclosing Party will
provide any non-Disclosing Party with prompt written notice so that any non-
Disclosing Party may seek a protective order or other appropriate remedy. In
the event that no such protective order or other remedy is obtained, the
Disclosing Party will furnish only that portion of the Confidential Information
which the Disclosing Party is advised by counsel is legally required and
cooperate, at the Disclosing Party's sole cost and expense, with the other
party's efforts to obtain reliable assurance that confidential treatment will be
accorded the Confidential Information.
5.4 Validity. If any provision of this Agreement is found or held to be
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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 Agreement. However, if any invalid term is capable of
amendment to render it valid, the Parties agree to negotiate an amendment to
remove the invalidity.
5.5 Severability. In the event that any of the terms of this Agreement
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are found to be invalid, unlawful or unenforceable, such terms (provided that
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they are not fundamental to the agreement) shall be severable from the remaining
terms, which shall continue to be valid and enforceable.
5.6 Variation. No variation of or addition to this Agreement shall be of
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any force or effect unless reduced to writing, signed by or on behalf of
Unisource (on behalf of all the Unisource Entities and the Indirect AUCS
Stockholders), AUCS N.V. (on behalf of all the AUCS Entities) and ISC and
expressed to amend this Agreement.
5.7 Entire Agreement. This Agreement (including the documents referred to
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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 Agreement. Each Party acknowledges that in agreeing to enter into
this Agreement it has not relied on any representations, warranties or promises
(except those set out in this Agreement) made by or on behalf of the other
Parties before the signature of this Agreement. Each Party waives all rights
11
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.
5.8 Waiver. A waiver by the Parties of a breach of any term or condition
-------
of this Agreement 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.
5.9 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
Agreement.
to ISC at:
0000 Xxxx Xxxxx Xxx
Xx Xxxxxxx XX 00000
XXX
Fax: x0 000 000 0000
Attention: The General Counsel
to any Unisource Entity at:
c/o Unisource NV
"Transpolis"
Xxxxxxxxxxxxx 00
0000 XX, Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax: x00 00 000 0000
Attention: The General Counsel
to any AUCS Entity at:
Xxxxxxxxx 0-00
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax: x00 00 000 0000
Attention: The General Counsel
to Telia at:
Xxxxxxxxxxxxx 00
Xxxxxxxxx
Xxxxxx
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Fax: x00 00 00 000
Attention: Director of Legal Affairs
To KPN at:
Xxxxxxx 000
0000 XX, Xxx Xxxxx
Xxx Xxxxxxxxxxx
Fax: x00 00 000 0000
Attention: The General Counsel
To Swisscom at:
Xxxxxxxxxx
Xxxxxxxxxx
XX-0000
Xxxxx, Xxxxxxxxxxx
Fax: x00 00 00 00 000
Attention: Chief Legal Counsel
(b) Any notice to be given by a Party to another Party in terms of this
Agreement 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 signed
receipt is 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 signed receipt is issued shall be deemed to have been received by the
addressee, in the absence of proof to the contrary, at the time of delivery; and
(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 answer back of the receiving facsimile
machine.
5.10 Counterparts. This Agreement may be executed in one or more
-------------
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
5.11 General. Unless expressly provided otherwise, all representations,
-------
warranties, undertakings, covenants, agreements and obligations made, given or
entered into in this Agreement by the Indirect AUCS Stockholders and/or the
Unisource Entities are each made, given or entered into severally by each such
entity.
13
5.12 Filing. 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
Agreement, 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
5.12.
5.13 Assignment.
----------
(a) Except as provided in Section 5.13(b) or (c) below, none of the
Parties may assign, sublicense, transfer or otherwise dispose of any rights or
sub-contract or transfer or otherwise dispose of any obligations under this
Agreement, other than in connection with the sale or transfer of all or
substantially all the assets of the assigning Party, except with the prior
written approval of Unisource and ISC, which approval shall not be unreasonably
withheld or delayed.
(b) The Unisource Entities and the Indirect AUCS Stockholders may,
provided that any such actions do not and will not affect the rights of ISC
under this or any other agreement, transfer the interests of the Unisource
Entities in (x) AUCS and AUCS N.V., (y) AUCS and the assets of AUCS N.V., or (z)
the assets of AUCS and AUCS N.V., either directly or indirectly to the Indirect
AUCS Stockholders.
(c) After the Effective Date, the Contract Services to be provided
pursuant to the Contracts and any New Contracts may be provided by ISC or any of
ISC's Affiliates.
(d) The Parties other than ISC shall, from time to time on being requested
to do so by ISC, now or at any time in the future, do or procure the doing of
all such acts and/or execute or procure the execution of all such documents in a
form satisfactory to ISC as ISC may consider necessary for giving full effect to
this Agreement and securing to ISC the full benefit of the rights, powers and
remedies conferred upon ISC in this Agreement at the cost and expense of the
Parties other than ISC.
6. GUARANTEE
6.1 In consideration of ISC entering into this Agreement, the Indirect
AUCS Stockholders (the "Guarantors") hereby severally unconditionally guarantee
----------
to ISC and its successors, transferees and assigns the due and punctual
performance and observance by the AUCS Entities and the Unisource Entities of
all the AUCS Entities' and the Unisource Entities' obligations and the punctual
discharge by the AUCS Entities and the Unisource Entities of all the AUCS
Entities' and/or the Unisource Entities' liabilities to Infonet and/or any other
Parties contained in or arising under this Agreement.
6.2 As an independent and primary obligation, without prejudice to Section
6.1, the Guarantors hereby unconditionally and irrevocably agree to indemnify
and keep indemnified ISC
14
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 any AUCS Entity or Unisource Entity to comply with any of its material
obligations or discharge any of its liabilities under this Agreement or by
reason of the AUCS Entities or the Unisource 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 Agreement.
6.3 The guarantee and indemnity contained in this Section 6 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 and the
Unisource Entities arising under this Agreement, have been paid, discharged or
satisfied in full and notwithstanding any insolvency or winding up of any AUCS
Entity or Unisource Entity or any change in the status of any AUCS Entity or any
Unisource Entity.
6.4 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
any AUCS Entity or any Unisource Entity or by any variation of the terms of this
Agreement 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 contained in this Section 6.
15
SIGNED this 30th day of September, 1999.
For and on behalf of ISC
INFONET SERVICES CORPORATION
By: _________________________
Title: ______________________
For and on behalf of AUCS
AUCS COMMUNICATIONS SERVICES v.o.f., represented by AUCS N.V.
By: _________________________
Title: ______________________
For and on behalf of AUCS N.V.
AUCS COMMUNICATIONS SERVICES N.V.
By: _________________________
Title: ______________________
For and on behalf of UPES
UNISOURCE PAN-EUROPEAN SERVICES B.V.
By: _________________________
Title: ______________________
For and on behalf of Unisource N.V.
UNISOURCE N.V.
By: _________________________
Title: ______________________
For and on behalf of Unisource Nominee
BRIAP B.V.
By: _________________________
Title: ______________________
16
For and on behalf of Telia
TELIA AB
By: _________________________
Title: ______________________
For and on behalf of KPN
KPN TELECOM B.V.
By: _________________________
Title: ______________________
For and on behalf of Swisscom
SWISSCOM AG
By: _________________________
Title: ______________________
17
Schedule A: Contracts
---------------------
1. Distributor Agreement entered into between Telia AB and AT&T-Unisource
Communications Services v.o.f., dated 1 July 1996, for Sweden.
2. Distributor Agreement entered into between Telia Norge AS and AT&T-Unisource
Communications Services v.o.f., dated 1 July 1996, for Norway.
3. Distributor Agreement entered into between Telia A/S and AT&T-Unisource
Communications Services v.o.f., dated 1 July 1996, for Denmark.
4. Distributor Agreement entered into between Telia AB and AT&T-Unisource
Communications Services v.o.f., dated 12 August 1997, for Finland.
5. Distributor Agreement entered into between KPN Telecom B.V. and AT&T-
Unisource Communications Services v.o.f., dated 1 July 1996, for The
Netherlands.
6. Distributor Agreement entered into between Swisscom AG and AT&T-Unisource
Communications Services v.o.f., dated 1 July 1996, for Switzerland and
Liechtenstein.
7. Distributor Agreement entered into between Bord Telecom Eireann Plc and
AT&T-Unisource Communications Services v.o.f., dated 6 February 1997, for
the Republic of Ireland.
8. Distributor Agreement entered into between Unisource Belgium N.V. and AT&T-
Unisource Communications Services v.o.f., dated 6 February 1997, for
Belgium.
9. Distributor Agreement entered into between Unisource Business Networks
Luxembourg S.a.r.l. and AT&T-Unisource Communications Services v.o.f., dated
30 May 1997, for Luxembourg.
10. Distributor Agreement entered into between SIRIS S.A.S. and AT&T-Unisource
Communications Services v.o.f., dated 30 May 1997, for France.
11. Distributor Agreement entered into between Unisource Iberia S.A. and AT&T-
Unisource Communications Services v.o.f., dated 17 March 1998, for Spain.
12. Distributor Agreement entered into between Unisource Italia S.p.A. and
AT&T-Unisource Communications Services v.o.f., dated 16 March 1998, for
Italy.
13. Distributor Agreement entered into between. Unisource Hellas
Telecommunications Services S.A. and AT&T-Unisource Communications Services
v.o.f., dated 18 September 1996, for Greece.
14. Non-exclusive Distribution Agreement entered into between Mannesman Arcor
GmbH and AT&T-Unisource Communications Services v.o.f., dated 1 September
1997 for Germany.
18
15. WorldSource Channel Agreements entered into between AUCS and, respectively,
any of the distributors referred to above.
16. Contracts with end customers held directly by AUCS (with or without a
distributor as a party):-
. contracts for WorldSource Services where AUCS is the Support Member for
WorldSource services;
. various contracts for AUCS Internet Transit Services;
. other customers (such as the contract between Whirlpool and AUCS and
Unisource Italia).
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Schedule B: AT&T 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. 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).
3. 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).
4. 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).
5. 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).
6. 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).
7. 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).
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Schedule C: 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
KDD Communications, Inc. (KCOM)
Korea Telecom, Data Division
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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.
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