SpectraSite International, Inc.
and
Transco Telecommunications Asset Development Company Limited
and
EVER 1267 Limited
(to be renamed by the parties at Completion)
JOINT VENTURE
SHAREHOLDERS' AGREEMENT
Table of Contents
Clause
1 Interpretation..........................................................1
2 Warranties..............................................................8
3 Conditions..............................................................9
4 Prior to Completion....................................................10
5 Completion.............................................................11
6 The Business of the Company............................................14
7 Property transfer matters..............................................15
8 Ample and Telink Acquisitions..........................................17
9 Installation of fibre optics...........................................17
10 Provision of services by Shareholders..................................17
11 Know-how...............................................................17
12 The Board and management...............................................18
13 Reserved matters.......................................................20
14 Budgets and financial information......................................21
15 Liability for Employees................................................22
16 Distribution policy....................................................22
17 Finance for the Company................................................23
18 Acquisitions...........................................................24
19 Transfers of Shares....................................................25
20 Deadlock...............................................................28
21 Put and Call Options...................................................30
22 Failure to transfer....................................................32
23 General................................................................32
24 Default................................................................33
25 Determination of Fair Value............................................36
26 Terms and consequences of transfers of Shares..........................37
27 Enforcement of rights..................................................39
28 Competition with the Business..........................................40
29 Public announcements...................................................42
30 Information, insurance, records, licences..............................42
31 Intellectual property rights...........................................43
32 Tax Matters............................................................43
33 Duration and termination...............................................44
34 Confidentiality........................................................45
35 Arbitration............................................................46
36 Notices................................................................47
37 Whole agreement and remedies...........................................48
38 General................................................................49
39 Governing law and submission to jurisdiction...........................51
THE FOLLOWNING SCHEDULES HAVE BEEN OMITTED, AND WILL BE FURNISHED SUPPLEMENTALLY
TO THE COMMISSION UPON REQUEST.
SCHEDULE 1 List of Agreements and Documents...........................53
SCHEDULE 2 Description of Know-how....................................54
SCHEDULE 3 SpectraSite Warranties.....................................55
SCHEDULE 4 List of Shareholder Reserved Matters.......................56
SCHEDULE 5 Share Options Term Sheet...................................58
SCHEDULE 6 Apportionment of Consideration provided by TadCo...........60
This Deed is made on 13 April 2000 between:
(1) SpectraSite International, Inc., corporation formed under the laws of the
state of Delaware whose principal place of business is at 000 Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxx, Xxxxx Xxxxxxxx 00000, Xxxxxx Xxxxxx of America
("SpectraSite");
(2) Transco Telecommunications Asset Development Company Limited, a company
incorporated in England and Wales with registered number 3956595 whose
registered offices is at 000 Xxxxxx Xxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxxx
XX0 0XX ("TadCo");
(3) EVER 1267 Limited (to be renamed by the parties at Completion), a company
incorporated in England and Wales with registered number 3922958 whose
registered offices is at Cloth Xxxx Xxxxx, Xxxxxxxxx Xxxxxx, Xxxxx XX0
0XX, United Kingdom (the "Company").
Recitals:
(A) SpectraSite is a wholly owned subsidiary of SpectraSite Holdings, Inc., a
Delaware corporation, which is in the business of providing outsourced
antenna sites and network services to the wireless communications and
broadcast industries in the United States and Canada.
(B) TadCo is a wholly owned subsidiary of BG Transco Holdings plc which in
turn is a wholly owned subsidiary of BG Group plc. The principal business
of BG Transco Holdings plc is the transportation of gas. The BG group
operates a considerable number of properties in the United Kingdom many
of which are thought to be potentially attractive locations for the
deployment of wireless communications antennae.
(C) SpectraSite and TadCo have agreed to establish a joint venture
company to carry on the business as more particularly described in
Clause 6 which will provide antenna sites and network infrastructure
services to operators of mobile and wireless communication networks in
the United Kingdom and, through subsidiary companies, in Europe
building upon the expertise of SpectraSite Holdings, Inc., and
utilising the Properties and Apparatus to be contributed to the venture
by TadCo and SpectraSite in accordance with the Site Transfer
Agreement together with other properties and assets to be acquired in
the future by the joint venture from third parties or contributed
through related joint ventures.
(D) The Company was incorporated in England and Wales on 10 February 2000. As
at the date of this Deed it has an authorised share capital of
(pound)1,000 divided into 1,000 ordinary shares of (pound)1 each one of
which has been issued at par to and is held by SpectraSite.
(E) This Deed inter alia sets out the terms on which SpectraSite and TadCo
have agreed to subscribe for new shares in the Company which when issued
will result in each holding 50 per cent of the issued share capital of
the Company. This Deed also sets out the terms governing their
relationship as shareholders in the Company.
It is agreed as follows:
1 Interpretation
In this Deed (including the Recitals):
1.1 Definitions
"Acceptance Committee" shall have the meaning ascribed to it
in the Site Transfer Agreement;
"Acceptance Notice" shall have the meaning ascribed thereto in
Clause 19.5.1;
"Acceptance Period" shall have the meaning ascribed to it in
Clause 19.4.1 ;
"Acquirer" shall have the meaning ascribed to it in Clause
21.6.1 of this Deed;
"Act" means the Companies Xxx 0000 as amended by the Companies
Xxx 0000;
"A Director" means a director appointed by the A Shareholder in
accordance with the Articles and "A Directors" shall be
construed accordingly;
"agreed terms" means a document in the terms agreed between, and
signed for identification by or on behalf of, SpectraSite and
TadCo, respectively, as the same may be amended, added to or
replaced from time to time by written agreement between the
parties thereto or as otherwise set out in this Deed, a list of
such documents in agreed terms is set out in Schedule 1;
"Ample" means Ample Design Limited, a company incorporated in
England and Wales with registered number 3055844 and having its
registered office at 00 Xxxx Xxxx, Xxxxxx, Xxxxxx XX0 0XX;
"Apparatus" means any tower, mast, pole, equipment, housing or
other structure used or adapted for use for the installation
support and housing of any antennae, dishes, transceivers or
other plant and equipment used for the purpose of conveying
radio telecommunications signals by media including but not
limited to radio and microwave;
"Articles" mean the proposed new articles of association of the
Company to be adopted by the Company in accordance with Clause
5.3.4 and which shall give effect to the Shareholders' rights
set out in this Deed;
"A Shareholder" means the registered holders of A Shares;
"A Shares" mean the ordinary shares of (pound)1 each
designated as A Shares in the capital of the Company;
"Associated Company" means a holding company, subsidiary,
subsidiary undertaking or fellow subsidiary or subsidiary
undertaking or any other subsidiaries or subsidiary undertakings
of any such holding company;
"Audited Accounts" mean the report and audited accounts of the
Company and, if applicable, the audited consolidated accounts of
the Group for the financial period ending on the relevant
balance sheet date;
"B Director" means a director appointed by the B Shareholder in
accordance with the Articles and "B Directors" shall be
construed accordingly;
"B Shareholder" means the registered holder of B Shares;
"B Shares" mean the ordinary shares of (pound)1 each
designated as B Shares in the capital
of the Company;
"BG Group" means BG Group plc (or any successor to BG Group plc
as the ultimate parent company of Transco) and each of its
subsidiary undertakings from time to time;
"BGPH" shall have the meaning ascribed to it in Clause 7.3;
"Bid Notice" shall have the meaning ascribed to it in Clause
20.4.1 of this Deed;
"Bid Price" shall have the meaning ascribed to it in Clause
20.4.1(i) of this Deed;
"Board" means the board of directors of the Company or an
authorised committee of the Board;
"Business" means the business of the Company as defined in
Clause 6.1.1;
"Business Day" means a day (except a Saturday or Sunday) on
which clearing banks in London are open for business;
"Business Plan" means the Initial Business Plan and any
subsequent business plan for the Group comprising an annual
budget and five year rolling business plan prepared annually by
the Company and approved by the Shareholders;
"CEO" shall have the meaning ascribed to it in Clause 12.1.1 of
this Deed;
"CFO" shall have the meaning ascribed to it in Clause 12.2.1 of
this Deed;
"CGT Group" means a group of companies as defined in Section 170
of TCGA 1992;
"Chairman" means the Chairman of the Board from time to time;
"Change of Control Call Option" shall have the meaning ascribed
to it in Clause 21.2 of this Deed;
"Change of Control Put Option" shall have the meaning
ascribed to it in Clause 21.2 of this Deed;
"Code" means the Telecommunications Code set out in
Schedule 2 to the Telecommunications Xxx 0000;
"Completion" means the transactions and matters provided for
under Clause 5;
"Completion Date" means the date on which Completion takes place
pursuant to Clause 5.1.1 being no later than the date being 90
days after the date of this Deed;
"Confidential Information" shall have the meaning ascribed
to it in Clause 34.1 of this Deed;
"Consortium Claim" means a consortium claim as defined in
Section 402(3) ICTA;
"Contracts" has the meaning given to it in the Site Transfer
Agreement;
"Control" means, in relation to a Shareholder, where a person
(or persons acting in concert) acquires or agrees to acquire
direct or indirect control (1) of the day to day affairs of the
board of directors of that Shareholder, or (2) over more than 50
per cent of the total voting rights conferred by all the issued
shares in the capital of that Shareholder which are ordinarily
exercisable in general meeting or (3) control of the composition
of the board of directors of that Shareholder. For these
purposes "persons acting in concert", in relation to a
Shareholder, are persons which actively co-operate, pursuant to
an agreement or understanding (whether formal or informal) with
a view to obtaining or consolidating Control of that
Shareholder;
"Deadlock Matter" shall have the meaning ascribed to it in
Clause 20.1.2 of this Deed;
"Deadlock Notice" shall have the meaning ascribed to it in
Clause 20.2 of this Deed;
"Defaulting Shareholder" shall have the meaning ascribed to it
in Clause 24.1 of this Deed;
"Default Notice" shall have the meaning ascribed to it in Clause
24.4 of this Deed;
"De Minimis Business" means any business carried on by a person
in any jurisdiction involving the ownership of
telecommunications infrastructure assets, unless such ownership
is for a wholly ancillary purpose;
"Designated Representatives" shall have the meaning ascribed
to it in Clause 20.1.2 of this Deed;
"Directors" means the A Directors and the B Directors, and
"Director" means any one of them;
"Employing Shareholder" means the Shareholder who at the date
of Notification is the employer of the Undisclosed Employee;
"Employment Losses" means all losses, claims and reasonable
legal costs;
"Event of Default" shall have the meaning ascribed to it in
Clause 24.1 of this Deed;
"Excluded Territories" shall have the meaning ascribed to it in
Clause 28.3.1 of this Deed;
"Facility" shall have the meaning ascribed to it in Clause 17.2;
"Fair Value" means the value of the Shares calculated in
accordance with Clause 25;
"Green Lining" means the identification by TadCo of the Phase 1
Properties in accordance with Clause 9 of the Site Transfer
Agreement;
"Group" means the Company and its subsidiaries and its
subsidiary undertakings and "Group Company" means any one of
them;
"Holder Licence" has the meaning given to it in the Site
Transfer Agreement;
"ICL Contract" means the contractual arrangements between
Transco and any of its Associated Companies in force at the date
of this Deed in respect of provision by ICL plc or any of its
Associated Companies of PMR, maintenance and associated
services;
"ICL Property" shall have the meaning ascribed to it in Clause
5.7;
"ICTA" means The Income and Corporation Taxes Xxx 0000;
"Improvement" means any improvement in modification to or
development of the Know-how and any new know-how or invention
(whether patented, patentable or the subject of patent
application or otherwise) relating to the Know-how;
"Initial Business Plan" means the initial business plan for the
Company to be agreed between SpectraSite and TadCo no later than
two weeks prior to Completion;
"Initiator" shall have the meaning ascribed to it in Clause 20.2
of this Deed;
"Know-how" means the intellectual property relating to the
know-how described in Schedule 2;
"LCIA" means London Court of International Arbitration;
"Licence of Know-how" means a perpetual, non-exclusive,
royalty free licence of the Know-how;
"Majority Call Option" shall have the meaning ascribed to it
in Clause 21.1 of this Deed;
"Majority Shareholding" shall have the meaning ascribed to it
in Clause 21.1 of this Deed;
"Minority Put Option" shall have the meaning ascribed to it
in Clause 21.1 of this Deed;
"Minority Shareholding" shall have the meaning ascribed to it
in Clause 21.1 of this Deed;
"Minority Shares" shall have the meaning ascribed to it in
Clause 21.1 of this Deed;
"Non-approved Acquisition" shall have the meaning ascribed
to it in Clause 18.2 of this Deed;
"Notice" shall have the meaning ascribed to it in Clause 36.1 of
this Deed;
"Notification" shall have the meaning ascribed to it in Clause
15.1(i) of this Deed;
"Occupation Lease" shall have the meaning ascribed thereto
in the Site Transfer Agreement;
"Offer" shall have the meaning ascribed to it in Clause 19.3 of
this Deed;
"Ofgem" shall have the meaning ascribed thereto in Clause 7.7.4;
"Option Date" shall have the meaning ascribed to in Clause
21.4.1 of this Deed;
"Option Notice" shall have the meaning ascribed to it in Clause
21.3 of this Deed;
"Option Price" shall have the meaning ascribed to it in Clause
21 of this Deed;
"Options" shall have the meaning ascribed to it in Clause 21.3
of this Deed;
"PGT Licence" means the public gas transporter licence treated
as granted under Section 7 of the Gas Act 1986 (as amended) to
Transco by which Transco is authorised to transport gas;
"PMR" means private mobile radio;
"Participation Right" shall have the meaning ascribed to it in
Clause 5.4.2(iii) of this Deed;
"Permitted Condition" means a bona fide material consent,
clearance, approval or permission necessary to enable the
relevant person to be able to complete a transfer of Shares
under (1) its constitutional documents (2) the rules or
regulations of any stock exchange or automated quotation system
on which it or its parent company is quoted or (3) any
governmental, statutory or regulatory body in those
jurisdictions where that person carries on business and not
being a condition which is within the power of that person to
fulfil;
"Phase 1 Property" shall have the meaning ascribed thereto
in the Site Transfer Agreement;
"Phase 2 Property" shall have the meaning ascribed thereto
in the Site Transfer Agreement;
"Potential Phase 1 Property" shall have the meaning
ascribed thereto in the Site Transfer Agreement;
"Potential Phase 2 Property" shall have the meaning
ascribed thereto in the Site Transfer Agreement;
"Potential Property" shall have the meaning ascribed thereto in
the Site Transfer Agreement and "Potential Properties" shall be
construed accordingly;
"Property" means any Phase 1 Property or Phase 2 Property and
"Properties" shall be construed accordingly;
"Purchaser" shall have the meaning ascribed to it in Clause
20.5.1 of this Deed;
"Relevant Obligations" shall have the meaning ascribed thereto
in Clause 24.2;
"Remaining Shareholder" shall have the meaning ascribed to it
in Clause 19.4 of this Deed;
"Review" shall have the meaning ascribed thereto in Clause
7.7.1;
"Right" shall have the meaning ascribed to it in Clause 38.6 of
this Deed;
"Sale Notice" shall have the meaning ascribed to it in Clause
19.5.3 of this Deed;
"Sale Shares" shall have the meaning ascribed to it in Clause
24.4.1 of this Deed;
"SDRT" means stamp duty reserve tax;
"Seller" shall have the meaning ascribed to it in Clause 21.6.1
of this Deed;
"Senior Management" shall have the meaning ascribed to it in
Clause 12.8.1;
"Shareholders" means the A Shareholder and the B Shareholder;
"Shareholder Reserved Matter" shall have the meaning ascribed
to it in Clause 13.1 of this Deed;
"Shares" mean the A Shares and the B Shares and (1) any shares
issued in exchange for those shares or by way of conversion or
reclassification and (2) any shares representing or deriving
from those shares as a result of an increase in, reorganisation
or variation of the capital of the Company registered in the
name of the A Shareholder or the B Shareholder;
"Site Licence" has the meaning given to it in the Site Transfer
Agreement;
"Site Transfer Agreement" means the agreement by that name
between the Company (1) and TadCo (2) of even date herewith
which governs the process for the identification and delivery of
Properties in the Company in accordance with its terms;
"STA" shall have the meaning ascribed thereto in Clause 7.3;
"Target Shares" shall have the meaning ascribed thereto in
Clause 28.1.2;
"TCGA 1992" means the Taxation of Chargeable Gains Xxx 0000;
"Telink" means Telink Limited, a company incorporated in England
and Wales with registered number 3598122 and having its
registered office at 00 Xxxx Xxxx, Xxxxxx, Xxxxxx XX0 0XX;
"Territory" shall have the meaning ascribed to it in Clause
6.1.3 of this Deed;
"Transco" means BG Transco plc, a company incorporated in
England and Wales with registered number 2006000 and having its
registered office at 000 Xxxxxx Xxxxxx Xxxx Xxxxx, Xxxxxxx,
Xxxxxxxxx XX0 0XX or any successor to some or all of its
business;
"Transco Licence" shall have the meaning ascribed thereto
in the Site Transfer Agreement;
"Transfer Date" shall have the meaning ascribed to it in
Clauses 19.7.1, 20.7.1 and 24.5.1 of this Deed;
"Transfer Notice" shall have the meaning ascribed to it in
Clause 19.4 of this Deed;
"Transfer Provisions" means the Transfer Regulations and Council
Directive 00/000 XXX;
"Transfer Regulations" means the Transfer of Undertakings
(Protection of Employment) Regulations 1981 (as amended);
"Undisclosed Employee" shall have the meaning ascribed to it
in Clause 15.1 of this Deed;
"VAT" means value added tax;
"Viability Date" shall have the meaning ascribed thereto in
Clause 7.7.1; and
"Wireless Communication Sites" shall have the meaning ascribed
thereto in Clause 6.1.1(i).
1.2 Interpretation Xxx 0000
Xxx Xxxxxxxxxxxxxx Xxx 0000 shall apply to this Deed in the same
way as it applies to an enactment.
1.3 Subordinate legislation
References to a statutory provision include any subordinate
legislation made from time to time under that provision.
1.4 Modification etc. of statutes
References to a statute or statutory provision include that
statute or provision as from time to time modified or re-enacted
or consolidated so far as such modification or re-enactment or
consolidation applies or is capable of applying to any
transactions entered into in accordance with this Deed.
1.5 Companies Xxx 0000
The expressions "holding company", "subsidiary" and "subsidiary
undertaking" shall have the same meanings in this Deed as their
respective definitions in the Act.
1.6 Clauses, Schedules etc.
References to this Deed include the Schedules and Appendices to
it and this Deed as from time to time amended and unless
otherwise stated references to Clauses, Schedules and Appendices
are to Clauses of, and Schedules and Appendices to, this Deed.
1.7 Headings
Headings shall be ignored in construing this Deed.
2 Warranties
2.1 Initial warranties be given by each of the Shareholders Each of
the Shareholders warrants to the other (but in the case of TadCo
subject to Clause 2.2.1 and in the case of SpectraSite to Clause
2.2.2) that;
2.1.1 it has full power and authority to enter into and to
perform its obligations under this Deed which when
executed will constitute valid and binding obligations
on it in accordance with its terms;
2.1.2 the entry into, delivery of, and the performance by it
of this Deed will not result in any breach of any
provision of its memorandum and articles of association
or other constitutional documents or result in any
claim by a third party against the other Shareholders
or the Company; and
2.1.3 the entry into, delivery of, and the performance by it
of this Deed or any of the obligations contemplated
herein will not result in any breach of any arrangement
between it and a third party.
2.2 Disclosures
2.2.1 TadCo as a member of the BG Group is affected by the
undertaking given by the ultimate parent company of
Transco to procure that members of the BG Group will
refrain from taking any action which may put Transco in
breach of its PGT Licence or its statutory obligations.
This disclosure qualifies the warranties given by TadCo
in Clause 2.1 but does not prevent any liabilities or
act to limit or reduce any liability arising under any
of TadCo's other obligations under this Deed.
2.2.2 SpectraSite Holdings, Inc. which will be the primary source of
funds to SpectraSite in order to raise the necessary
finance for subscription of A Shares pursuant
to Clause 5.4.1 shall require the consent of
certain of its third party financiers, including
pursuant to its indentures and (if appropriate) bank
credit agreements. This disclosure qualifies the
warranties given by SpectraSite in Clause 2.1 but
does not prevent any liability or act to
limit or reduce any liability arising under any of
SpectraSite's other obligations under this Deed.
2.3 Additional warranties given by SpectraSite
SpectraSite further represents and warrants to TadCo and to the
Company in the terms set out in Schedule 3.
2.4 Knowledge and awareness
2.4.1 Any warranty which is quantified as being made "so far
as TadCo is aware" or "to the best of the knowledge,
information and belief of TadCo after making due and
careful enquiries" or any similar expression, has been
so qualified after reasonable enquiries by TadCo
including enquiries of persons employed by Transco who
in the recent past have had responsibility for
management or operation of the relevant Site.
2.4.2 Any warranty which is qualified as being made "so far
as SpectraSite is aware" or "to the best of the
knowledge, information and belief of SpectraSite after
making due and careful enquiries" or any similar
expression has been so
qualified after reasonable enquiries of the officers of
SpectraSite Holdings, Inc., its attorneys at law and
Messrs Xxxx Xxxxxxx and Xxxxxxxxxxx Xxxxxxx.
2.5 Updating to Completion
Each of the warranties given by TadCo and SpectraSite will be
fulfilled down to and will be true and accurate in all material
respects and not misleading in any material respects as if they
had been given again at Completion.
3 Conditions
3.1 Conditions Precedent
Completion of this Deed is conditional upon satisfaction of the
following conditions subject only to Completion of this Deed:
3.1.1 SpectraSite and TadCo agreeing in writing the Initial Business Plan;
3.1.2 Transco having received consent pursuant to Special
Condition 2(5) of the PGT Licence from the Director
General of Gas and Electricity Markets for the creation
of any cross default obligations created in or pursuant
to the Participation Agreement entered into on even
date with this Deed between Transco (1) and TadCo (2)
and in any agreed form documents thereunder;
3.1.3 The form of the documents in Part 2 of Schedule 1
having been agreed between the parties hereto; and
3.1.4 the relevant Associated Company of SpectraSite
receiving the requisite consents pursuant to the terms
of its indentures or, if applicable, third party credit
facilities as required by that Associated Company in
order to finance the subscription of the B Shares by
SpectraSite in accordance with Clause 5.4.1.
3.2 Responsibility for Satisfaction
SpectraSite and TadCo each hereby undertake to use all
reasonable endeavours to ensure the satisfaction of the
conditions set out in Clause 3.1 as soon as possible.
3.3 Non-Satisfaction
3.3.1 If any of the conditions in Clause 3.1 are not
satisfied by the Completion Date either SpectraSite or
TadCo may in its sole discretion terminate this Deed
and no party shall have any claim against any other
party under this Deed save for any claim arising from
breach of any undertaking contained in Clause 3.2, and,
in the case of TadCo, as provided in Clause 3.3.2.
3.3.2 If the Condition in Clause 3.1.4 is not satisfied by
the Completion Date, SpectraSite shall pay the sum of
(pound)2 million plus a sum to TadCo equal to the
reasonable legal and third party professional costs and
expenses incurred by TadCo in connection with the
preparation of this Deed and the documents referred to
herein and the preparation and negotiation of the
transaction contemplated by this Deed such amount not
to exceed, in any circumstances, the sum of (pound)1
million.
4 Prior to Completion
4.1 Actions between the date of this Deed and Completion:
4.1.1 SpectraSite may perform such due diligence in relation
to the Potential Properties, Apparatus and Contracts as
it may reasonably require and TadCo shall provide, or
use reasonable endeavours to procure the provision of,
such reasonable assistance as SpectraSite may
reasonably require to achieve the same;
4.1.2 TadCo shall complete the process of Green Lining;
4.1.3 TadCo shall use reasonable endeavours to procure a
report on title in relation to each Phase 1 Property is
completed and provided to the Company;
4.1.4 the Shareholders will agree a name for the Company
comprising elements of the SpectraSite and Transco
names;
4.1.5 TadCo shall conduct such due diligence as it may
reasonably require in relation to the Know-how; and
4.1.6 TadCo shall have reasonable access to and a reasonable
opportunity to consider and conduct reasonable due
diligence in respect of the acquisition of Ample and
Telink by SpectraSite or any of its Associated
Companies.
4.2 Restrictions
4.2.1 Pending Completion and subject to Clause 4.2.2, TadCo
shall not, and shall procure so far as it is reasonably
able to do so that Transco shall not without the prior
written consent of SpectraSite (not to be unreasonably
withheld or delayed):
(i) assign, amend or terminate any of the Contracts;
(ii) take steps to procure payment by any Contract
debtor generally in advance of the date on
which such debt is payable in accordance with
the relevant Contract;
(iii) sell, convey, lease, transfer or otherwise
dispose of, or mortgage, charge or otherwise
encumber any Potential Property or any
Apparatus installed at a Potential Property
save as permitted by the Site Transfer
Agreement;
4.2.2 Clause 4.2.1 shall not prevent TadCo, provided that it
has previously consulted with SpectraSite, from:
(i) entering into new contracts for the leasing of
antenna space at any of the Potential
Properties on the expiry of a Contract, such
new contract to be on substantially the same
terms as the Contract so expired save for
price which may be adjusted (if appropriate)
in line with current market rates;
(ii) entering into additional contracts with third
parties for the leasing of antenna space on
any of the Potential Properties;
(iii) negotiating and settling rent reviews in
accordance with the terms of the Contracts;
(iv) taking such action as is deemed reasonably
appropriate in the event of any material
breach of any of the Contracts.
5 Completion
5.1 Timing of Completion
5.1.1 Completion shall take place at One Silk Street, London
on 31 May 2000 or, if later, two Business Days after
receipt of the last of the consents referred to in
Clauses 3.1.2 and 3.1.4 or at such other place or on
such other date as may be agreed between SpectraSite
and TadCo provided that Completion shall not take place
more than 90 days after the date of this Deed.
5.1.2 TadCo, SpectraSite and the Company shall procure that
SpectraSite becomes beneficially entitled to the A
Shares to be allotted pursuant to this Clause 5 before
TadCo becomes beneficially entitled to the B Shares to
be allotted pursuant to this Clause 5.
5.2 Meeting of the Board of Directors
On the Completion Date, SpectraSite shall procure the holding of
a Board meeting to pass a resolution immediately convening an
extraordinary general meeting of the Company on short notice for
the purposes set out in Clause 5.3.
5.3 Extraordinary general meeting
SpectraSite shall consent to short notice in respect of the
extraordinary general meeting referred to in Clause 5.2 and
shall attend and vote in favour of resolutions (in a form
approved by SpectraSite):
5.3.1 redesignating the existing issued and authorised but
unissued ordinary shares in the capital of the Company
as A Shares;
5.3.2 increasing the share capital of the Company from
(pound)1,000 by the creation of 129,999,000 A Shares of
(pound)1 each and 130,000,000 B Shares of (pound)1
each;
5.3.3 authorising the Directors to issue and allot
129,999,000 A Shares and 130,000,000 B Shares to the A
and B Shareholders respectively in accordance with this
Deed and the Articles; and
5.3.4 adopting the Articles in substitution for the existing
articles of association of the Company.
5.4 Agreement to Subscribe for Shares Once the resolutions
in Clause 5.3 have been passed:
5.4.1 SpectraSite shall subscribe for 129,999,999 A Shares to
be allotted to it at par in consideration of:
(i) the payment to the Company of (pound)107,499,999
million;
(ii) the provision of the Know-how to the Company in
accordance with the terms of this Deed; and
(iii) the transfer to the Company of the entire issued share
capital of Ample and Telink together with the
assignment of all rights and benefits which
any member of the SpectraSite group has contracted to
acquire in connection with the acquisition of such
companies (including the rights and benefits (if any)
granted pursuant to the Ample share acquisition
agreement dated 7 April 2000 in relation to a retention
fund of (pound)2 million) and SpectraSite undertakes to
pay all costs of transfer and to pay to the Company an
amount equal to any stamp duty or SDRT payable by the
Company in connection with those transfers in each case
on demand.
5.4.2 Conditional on SpectraSite's subscription for A Shares,
the Company shall, at Completion, pay to TadCo the sum
of (pound)130 million to be satisfied solely by the
allotment and issue of 130,000,000 B Shares credited as
fully paid at the time of issue in consideration of :
(i) the agreement to deliver to the Company Phase 1 Properties together
with the Apparatus installed thereon in accordance with the
provisions and procedures set out in the Site Transfer Agreement
which Properties are
subject (if relevant) to:
(I) substitution in accordance with the Site Transfer Agreement;
(II) the Contracts;
(III) the Transco Licences; and
(IV) the Occupation Leases, Site Licences and Holder Licences;
(ii) on completion of the Occupation Lease, Site Licence or Holder Licence
of the relevant Property, as appropriate, the transfer to the Company
of the benefit and burden of the Contracts and the assignment to the
Company of any Transco Licences which relate to that Property;
(iii) the subjection of the Phase 2 Properties to be processed in
accordance with the procedures set out in the Site Transfer
Agreement with a view to an interest in such Phase 2 Properties
being granted to the Company together with the benefit of the
restriction on the disposal of Potential Phase 2 Properties by
TadCo as set out in Clause 5 of the Site Transfer Agreement
subject to variation in accordance with Clause 7.7 of this Deed and
the right of the Company to be informed of potential disposals of
such Potential Properties in accordance with Clause 6 of the Site
Transfer Agreement (the "Participation Right");
(iv) the grant to the Company by TadCo of an interest in the first 1500
Phase 2 Properties nominated, identified and accepted in accordance
with the procedures set out in the Site Transfer Agreement.
5.4.3 The Company shall pay TadCo such VAT, if any, as is due
by reason of the above subscription by TadCo, and the
Company shall pay to HM Custom and Excise such VAT, if
any, as is due by reason of the provision of the
Know-how and the operation of the VAT reverse charge.
5.4.4 The Shareholders shall procure that the Board meeting
referred to in Clause 5.2 is reconvened and resolutions
are passed:
(i) approving the Shareholders' respective
applications for the numbers of A Shares and B
Shares set out above and allotting those
Shares;
(ii) adopting 31 December as the Company's
accounting reference date (the Company's first
accounting reference period to end on 31
December 2000);
(iii) appointing the Company's auditors and bankers;
(iv) accepting the resignation of Xxxxxxxxxxx
Xxxxxxx as a director and Secretary and
appointing such person as is nominated by
TadCo pursuant to clause 12.4 of this Deed as
Secretary of the Company and changing the
registered office of the Company to 00 Xxxx
Xxxx, Xxxxxx, Xxxxxx XX0 0XX or such other
address as the Board may agree prior to
Completion;
(v) approving, the Licence of Know-how; and
(vi) adopting a share options plan substantially in
accordance with the term sheet set out in
Schedule 5.
5.4.5 the Company shall issue to SpectraSite 129,999,999 A
Shares and the Company shall issue to TadCo 130,000,000
B Shares;
5.4.6 SpectraSite shall appoint its first A Directors
pursuant to the Articles and this Deed;
5.4.7 TadCo shall appoint its first B Directors pursuant to
the Articles and this Deed;
5.4.8 the Company shall adopt the Initial Business Plan; and
5.4.9 the Company shall enter into the Licence of Know-how.
5.5 The consideration received by the Company for the issue of the B
Shares at Completion as aforesaid shall be apportioned in
accordance with Schedule 6. As soon as reasonably practicable
following Completion, SpectraSite and TadCo shall further
apportion the amounts set opposite items 1 and 4 in Schedule 6
to arrive at a price per Property.
5.6 Share Option Plan
The Company shall as soon as reasonably practicable following
Completion establish a share options plan substantially in
accordance with the terms set out in Schedule 5.
5.7 ICL Contract
The Company shall have no liability in respect of the ICL
Contract with regard to the maintenance of Apparatus and
Properties until such time and subject to and then only to the
extent that the Company acquires an Occupation Lease, Site
Licence or Holder Licence of a Property which is subject to the
ICL Contract (an "ICL Property"). On and from acquisition of an
ICL Property as mentioned above the Company shall pay to TadCo
or such person as TadCo may nominate with regard to the
maintenance of the Property and Apparatus situate at the ICL
Property, a sum equal to:
(i) the actual costs attributable to such maintenance under the ICL
Contract; or if lower
(ii) the amount which would be payable if such maintenance charge
had been negotiated on arms length commercial terms.
6 The Business of the Company
6.1 Scope and Purpose
6.1.1 The Company will offer a range of antenna site and
network infrastructure services for operators of mobile
and wireless communication networks of all descriptions
including GSM, UMTS, PMR, GPRS, wireless local loop,
telemetry and microwave point to point networks and
analogue and digital radio and television broadcasters
and the provision of connections to fixed and wireless
telecommunications networks belonging to third parties.
The business will comprise:
(i) the provision and management of mobile,
wireless and broadcast communication sites of
all descriptions, including without
limitation, towers, masts and roof top sites
hereinafter referred to as ("Wireless
Communication Sites") together with associated
infrastructure and civil works;
(ii) the acquisition, construction and development
of Wireless Communication Sites;
(iii) network design, consultancy and
implementation services;
(iv) equipment and systems specification,
procurement, installation and commissioning;
(v) the provision of facilities (with associated
services) at Wireless Communication Sites for
network operators and other third parties;
(vi) the operation and maintenance of Wireless
Communication Sites, and third party network
equipment;
(vii) leasing of Wireless Communication Sites and
associated infrastructure;
(viii) project management; and
(ix) associated services,
together the "Business" provided that the
Company shall not, save as provided above,
build, own or operate all or part of a fixed
telecommunications network and/or business
other than as is strictly ancillary to the
operation of Wireless Communications Sites on
sites owned and/or managed and/or operated by
the Company (ie "backhaul")
6.1.2 In addition, the joint venture may examine other
business opportunities and related services.
6.1.3 The Company will operate across the whole of Europe
excluding those countries which comprised the former
USSR (the "Territory") and will focus
initially on the United Kingdom, Spain, Italy, France,
Germany, Holland, Sweden, Norway, Finland and Denmark.
6.2 Licences
The Company shall apply for appropriate licences as required to
operate the Business, and in particular shall apply for a
licence pursuant to Section 7 of the Telecommunications Xxx 0000
(which shall include Code powers) and the parties shall use all
reasonable endeavours to assist the Company to obtain such a
licence as soon as reasonably practicable.
6.3 Conduct and promotion of the Business
The Shareholders agree that their respective rights in the
Company shall be regulated by this Deed and the Articles. The
Shareholders and the Company agree to be bound by and comply
with the provisions of this Deed which relate to them and all
provisions of the Articles will be enforceable by the parties
between themselves in whatever capacity. The Shareholders shall:
(i) promote the best interests of the Company;
(ii) (so far as they lawfully can) ensure that the Company
performs and complies with all of its obligations under
this Deed, the Articles and all other agreements it
enters into; and
(iii) ensure that the Business is conducted in accordance
with good business practice and the highest ethical
standards and in accordance with the Business Plan.
6.4 Head office
The head office of the Company shall be situated in the United
Kingdom.
7 Property transfer matters
7.1 No warranty as to transferability
Some of the Potential Properties are subject to operational
clearance by Transco, the obtaining of third party consents or
removal of restrictive covenants and accordingly TadCo makes no
representation or warranty that an Occupation Lease, Site
Licence or Holder Licence will be capable of grant in relation
to any specific Property.
7.2 Use of Sites
The Properties delivered to the Company are for the express
purpose of their use in connection with the Business and for no
other purpose, save that the Company may assign, transfer, swap
or share any of the Properties subject to all third party rights
(including the rights of TadCo under the Site Transfer
Agreement), if it is reasonably believed to be in the normal
course of developing the Business and so long as such
assignment, transfer, swap or sharing is not and does not become
a material part of the Business and that any such assignment,
transfer, swap or sharing of a Property shall not be for cash or
equity consideration save for any balancing payment.
7.3 Properties owned by BG Property Holdings Limited
TadCo and the Company agree to use all reasonable endeavours to
enter into an agreement ("STA") in terms substantially similar
to the Site Transfer Agreement in relation to at least 550
properties currently owned by BG Property Holdings Limited
("BGPH") (such properties to be included in a list to be
provided to the Company on the date of this Deed). It is
acknowledged by the parties that such STA will amongst other
differences:
7.3.1 provide for such properties to be delivered to the
Company in each case calculated as at the date of
delivery, by way of Site Licence and in each case at
open market value;
7.3.2 will enable TadCo to refuse to identify any such
property in response to a nomination notice under such
STA where it has been notified by BGPH that BGPH
reasonably considers that identifying and proceeding to
deliver that property would have a material adverse
effect on the open market value of or BGPH's ability to
dispose of and/or exploit land retained by BGPH which
adjoins or contains the relevant property.
7.3.3 the early occupation regime set out in Clause 16 of the
Site Transfer Agreement shall not apply to such
properties;
7.3.4 such properties may be the subject of one nomination
notice only and automatically withdrawn from the scope
of the STA if not accepted by the Company;
7.3.5 any such nomination notice must be served within a
period of three years from the date of this Deed;
7.3.6 no more than 125 such nomination notices per quarter
nor more than 500 in any year may be served by the
Company in respect of such properties;
7.3.7 such STA will provide that the Company will not
implement any planning consent which contains
conditions affecting any part of BGPH's retained land
if in the reasonable opinion of BGPH such conditions
would materially diminish the open market value of any
of BGPH's retained land or would materially adversely
affect BGPH's ability to dispose of and/or exploit any
of its retained land;
7.3.8 the responsibility for maintaining fences between parts
of such properties vested in the Company and BGPH's
retained land shall remain with the Company;
7.3.9 the planning co-operation provisions set out in Clause
28 of the Site Transfer Agreement shall not apply to
such properties.
Any STA entered into pursuant to this Clause will terminate if BGPH
ceases to be a subsidiary of BG Transco Holdings plc or if TadCo or
SpectraSite ceases to be a Shareholder and the proposed STA will
terminate in any event in accordance with its terms 3 years from the date
of completion of this Deed.
7.4 Staff Training
7.4.1 For a period of one year following the Completion Date
TadCo shall provide staff of the Company with
supervision during access to Potential Properties and
shall provide such training of Company staff as the
Company shall reasonably request in order that those
staff may be properly equipped to access Potential
Properties unsupervised, in each case free of charge.
7.4.2 At any time after one year following the Completion
Date, TadCo shall continue to provide supervision
and/or staff training as described in Clause 7.7.1
above, but shall be entitled to charge for these
services as an arms length, commercial basis.
8 Ample and Telink Acquisitions
To the extent that limitations of liability (other than de minimis
provisions in relation to warranty and indemnity claims) are contained in
any of the documentation relating to the acquisition of Ample and Telink
and to the extent that the Company incurs a liability by reason of its
ownership of Ample or Telink which it would (by virtue of the assignment
of SpectraSite's rights to the Company under Clause 5.4.1(iii)) be
entitled to claim from the vendors of Ample and Telink but for the fact
that such liability is in excess of those limitations, SpectraSite shall
fully indemnify the Company for an amount equal to the difference between
the amount of the consideration paid to the vendors of Ample and Telink
and the amount of such liability together with the Company's actual costs
in connection with the claim.
9 Installation of fibre optics
The Company agrees to give TadCo and its Associated Companies the
opportunity to provide fibre optic connections to any and all of the
Properties in priority to any other person provided that TadCo or its
Associated Companies are reasonably able to do so on terms that are at
least as favourable to the Company as those which the Company is able to
obtain in the market.
10 Provision of services by Shareholders
10.1 Any services to be provided by any of the Shareholders or
members of their respective groups to the Company shall be
agreed by the parties in advance and such services shall be
(save where provided by Transco in which event TadCo will
reimburse the Company) provided free of cost to the Company for
the first 12 months following the Completion Date. The terms of
any such services shall be set out in a written agreement.
11 Know-how
11.1 SpectraSite shall use all reasonable endeavours to procure that
the Company will have access to and use of the Know-how for the
duration of this Deed at no cost to the Company together with
all available documentation and customer support as may be
reasonably required to operate the Know-how also at no cost to
the Company.
11.2 SpectraSite shall procure that all upgrades, improvements and
developments in relation to the Know-how are provided free of
cost to the Company for the first 12 months following the
Completion Date.
11.3 SpectraSite shall indemnify the Company and hold the Company
harmless against (in each case on an after tax basis) all
losses, liabilities, costs (including without limitation,
reasonable legal costs), charges and reasonable expenses
exclusive of VAT where
recoverable by the Company which may be suffered or incurred by
the Company arising out of any and all claims, actions,
proceedings and demands which may be instituted, made or alleged
against the Company in the event of any claim for infringement
made by third party in respect of the Know-how.
12 The Board and management
12.1 A Directors
12.1.1 The A Shareholder may appoint three persons as A
Directors one of whom shall be the Chief Executive
Officer of the Company (the "CEO") and at least one of
whom shall be a non-executive Director. The appointment
of A Directors, subject to Clause 12.1.2, shall be
subject to consultation and approval in accordance with
Clause12.5.
12.1.2 Xxxx Xxxxxxx shall be the first CEO.
12.1.3 Any A Director may be removed by the A Shareholder in
accordance with the Articles and in such event the
Shareholders shall procure that the Company promptly
removes the A Director from his position. The A
Shareholder may, from time to time, appoint a
replacement A Director in his or her place subject to
compliance with Clause 12.1.1.
12.2 B Directors
12.2.1 The B Shareholder may appoint three persons as B
Directors one of whom shall be the Chief Financial
Officer of the Company (the "CFO"), and at least one of
whom shall be a non-executive Director. The appointment
of B Directors, subject to Clause 12.2.2, shall be
subject to consideration and approval in accordance
with Clause 12.5.
12.2.2 The first CFO will be identified by the B Shareholder
and notified to the A Shareholder prior to Completion.
12.2.3 Any B Director may be removed by the B Shareholder in
accordance with the Articles and in such event the
Shareholders shall procure that the Company promptly
removes the B Director from his position. The B
Shareholder may appoint a replacement B Director in his
or her place subject to compliance with Clause 12.2.1.
12.3 Chairman
12.3.1 The chairmanship of the Board shall rotate between the
non-executive Directors to the extent that there are
non executive Directors appointed by the relevant
Shareholder on the Board, failing which, the
chairmanship shall rotate between executive directors
appointed by the relevant Shareholder, with each
Shareholder in turn being able to nominate a Director
for the post in the following order or rotation:
Shareholder B then Shareholder A. The first Chairman
shall be decided prior to Completion.
12.3.2 Until the second anniversary of the Completion Date
each Chairman shall hold office for a period of six
months and thereafter each Chairman shall hold office
for a period of twelve months.
12.4 Company secretary
The Company secretary shall be appointed by the B Shareholder
and may be the CFO or any other member of Senior Management.
12.5 Shareholder consultation and approval for appointments
12.5.1 Neither Shareholder shall appoint a Director or a
Chairman without the approval of the other Shareholder,
such approval not to be unreasonably withheld or
delayed.
12.5.2 The Shareholder who wishes to make an appointment shall
take reasonable steps to ensure that its nominee is
able to perform his duties competently.
12.5.3 Each appointing Shareholder shall give notice to the
other Shareholder of the name, qualifications and
experience of its nominee and intended date of
appointment at least 5 Business Days prior to the
intended date of appointment.
12.5.4 The other Shareholder may give notice to the proposing
Shareholder that it does not approve of its nominee,
stating its reasons. If it does not do so before the
intended date of appointment, it shall be deemed to
approve the appointment.
12.6 Board Meetings
12.6.1 Board meetings shall be held at least six times a year
and at not more than two monthly intervals. At least
five clear days' written notice shall be given to each
of the Directors of all Board meetings (except if there
are exceptional circumstances or the majority of A and
B Directors agree to shorter notice). Any Director may
ask the Company secretary to call a meeting of the
board by giving notice in accordance with this Clause
12.6.1 and Clause 12.6.2.
12.6.2 Each notice of a Board meeting shall:
(i) specify a reasonably detailed agenda;
(ii) be accompanied by any relevant papers; and
(iii) be sent by courier or facsimile transmission
if sent to an address outside the United
Kingdom.
12.6.3 The quorum at a Board meeting shall be one A Director
and one B Director present in person or by audio or
video conferencing at the time when the relevant
business is transacted. If a quorum is not present
within half an hour of the time appointed for the
meeting or ceases to be present, the Director(s)
present shall adjourn the meeting to a specified place
and time three Business Days after the original date.
Notice of the adjourned meeting shall be given by the
secretary of the Company.
12.6.4 Board meetings shall be chaired by the Chairman. If the
Chairman is not present within ten minutes of the time
specified in a notice calling a meeting, the Directors
present may appoint any one of their number to act as
Chairman for the meeting.
12.6.5 At any Board meeting every A Director and every B
Director shall have one vote. If the number of A
Directors or B Directors present is not equal, the
number of votes exercisable by the A Directors or B
Directors shall be increased so that each class of
Directors can cast the same number of votes
irrespective of the number of Shares held by the
appointing Shareholder.
12.6.6 All business arising at any Board meeting shall be
determined by resolution passed by a majority of votes
cast by the Directors present. The Chairman shall not
be entitled to a second or casting vote.
12.6.7 Any Director may vote on a matter and be taken into
account for the purposes of a quorum even if he is
interested in that matter.
12.6.8 The Shareholders shall use their reasonable endeavours
to ensure that at least one Director appointed by them
attends Board meetings.
12.6.9 If three consecutive Board meetings are inquorate,
either Shareholder shall be entitled to serve a notice
to exercise the Deadlock procedure in accordance with
Clause 20.
12.7 Committees of Directors
12.7.1 The Board may constitute committees of Directors.
12.7.2 The voting and quorum for Board committee meetings shall be the same as
for Board meetings.
12.8 Management
12.8.1 The day to day affairs of the Company shall be managed by the senior
management, under the supervision of the Board, comprising:
(i) the CEO;
(ii) the CFO;
(iii) a marketing director;
(iv) an operations director; and
(v) a business development director
(together hereinafter referred to as the "Senior Management").
12.8.2 The initial appointments to the position of marketing director and
operations director shall be by the Board after consultation with the
Shareholders, using the services of recruitment consultants. Xxxxxxxxxxx
Xxxxxxx shall be appointed as the initial business development director.
13 Reserved matters
13.1 Shareholder Reserved Matters
The Shareholders shall procure, as far as they can, that no
action is taken or resolution passed by the Company or any Group
Company (whether acting through the Board or otherwise) in
respect of any of the matters or their nearest equivalent in the
case of a Group Company ("Shareholder Reserved Matters") set out
in Schedule 4 without the written approval of both Shareholders.
13.2 Timing of Shareholder approvals
Any Shareholder Reserved Matter submitted to the Shareholders by
the Board or the other Shareholder for their approval:
13.2.1 where there is no monetary amount involved, or where
the value of the transaction does not exceed (pound)20
million, shall receive a decision as to whether it has
been approved or not within 5 Business Days after all
papers containing reasonable details to make a proper
evaluation of the proposal have been received by them;
13.2.2 where the value of the transaction exceeds (pound)20
million, shall receive a decision as to whether it has
been approved or not as soon as reasonably possible
taking into account the possible need to call a board
meeting of a Shareholder, but shall in any even receive
a decision within 10 Business Days after all papers
containing reasonable details to make a proper
evaluation of the proposal have been received by them.
14 Budgets and financial information
14.1 Information to be prepared
The Company shall prepare and submit to the Board and to the
Shareholders for their approval the following information as
soon as possible and no later than the dates/times set out
below:
14.1.1 the unaudited results of the Company and all Group
Companies for the previous financial year within 25
Business Days of the end of each financial year
together with a reconciliation against management
accounts;
14.1.2 audited accounts for the previous financial year within
three months of the end of each financial year. The
audited accounts of the Company shall be prepared in
accordance with UK GAAP and with a US GAAP
reconciliation.
14.1.3 a detailed draft Business Plan (including a budget
setting out major items of revenue and capital
expenditure) for the Company and the Group for
the following financial year and a draft business
plan for the Company and the Group on a rolling five
year basis to be prepared two months before the end
of each financial year. The Business Plan shall be
broken down on a monthly basis, shall contain a
cash flow forecast and a balance sheet showing
the projected position of the Company and the
Group as at the end of the following financial year;
14.1.4 monthly unaudited management accounts including:
(i) a detailed account, balance sheet and cash flow stateme
(ii) an analysis of income and other revenue;
(iii) a review of the budget contained within the Business
Plan including a reconciliation of results with revenue
and capital budgets;
within 20 Business Days after the end of each month;
14.1.5 monthly key performance indicators in a form to be
agreed in respect of the previous month within 20
Business Days after the end of each month; and
14.1.6 such further information as any Shareholder may
reasonably require relating to the Business or
financial condition of the Company or of any Group
Company.
14.2 Access to accounting records
The Shareholders shall have unrestricted access to the
accounting records, minutes and other information relevant to
the Company, subject only to legally binding duties of
confidentiality.
15 Liability for Employees
15.1 Transfer Provisions and Undisclosed Employees
If any contract of employment shall have effect as if originally
made between the Company and any employee ("Undisclosed
Employee") as a result of the provisions of the Transfer
Provisions and this Deed (without prejudice to any other rights
or remedies which may be available to the Company):
(i) the Company shall as soon as reasonably practicable
notify the Employing Shareholder upon becoming aware of
the application of the Transfer Provisions and this
Deed to any such contract of employment
("Notification") in order that the Employing
Shareholder can look into the possibilities of
redeploying such Undisclosed Employee to a suitable
alternative position within its organisation;
(ii) if the Employing Shareholder does not identify or wish
to offer the Undisclosed Employee a suitable
alternative position or any such offer is not accepted
by the Undisclosed Employee within 28 days of
Notification, the Company may terminate the contract of
employment of the Undisclosed Employee within a further
28 days; and
(iii) the Employing Shareholder shall indemnify the Company
and keep the Company indemnified against all Employment
Losses relating to or arising out of such termination,
provided that such termination occurs within six months
of the date on which the Company became aware of the
application of the Transfer Provisions to the
Undisclosed Employee in question.
15.2 Definitions
For the purposes of this Clause 15 the terms "contract of
employment" and "collective agreement" shall have the same
meanings respectively as in the Transfer Regulations.
16 Distribution policy
16.1 Audited Accounts
The annual general meeting of the Company at which Audited
Accounts are laid before the Shareholders must be held not later
than four months after the end of the relevant financial year.
16.2 Distributions
The Company shall not make any distributions to the Shareholders
within the first three years commencing on the Completion Date.
Thereafter the Company shall distribute such percentage of the
Company's profits lawfully available for distribution as the
Board
determines in each financial year to its Shareholders subject to
the Board making reasonable provisions and transfers to reserves
and to the conditions in Clause 16.3 being met.
16.3 Conditions for distribution of net profit
Distribution of profits in accordance with this Clause may not
be made if:
16.3.1 the distribution would result in the debt/equity ratio
of the Company or the Group exceeding 50:50 at the time
of the payment or (based on the Board's estimates,
having regard to the relevant budget) within the
following 12 months;
16.3.2 the distribution would result in a breach of any
covenant or undertaking given by the Company to any
lender or would, in the opinion of the Board, be likely
to do so within the following 12 months; or
16.3.3 the Board resolves that the distribution is materially
prejudicial to the interests of the Company having
regard to:
(i) implementation of the investment programme approved in the Business
Plan or otherwise;
(ii) the trading prospects of the Company and the Group; and (iii) the
need to maintain the sound financial standing of the Company and the
Group.
17 Finance for the Company
17.1 Additional finance
17.1.1 Finance for the Company shall be provided in accordance
with the budget contained within the Business Plan and
the Company will at all times be subject to the maximum
debt/equity ratio of 50:50 or such other debt/equity
ratio as may be agreed by the Shareholders from time to
time.
17.1.2 If the Board determines that the Company requires
additional finance, subject to the approval of
Shareholders as a Shareholder Reserved Matter where
required, the Company may receive further finance
either:
(i) by borrowing from third party lenders; or
(ii) from Shareholders.
17.2 External finance
Finance from third party lenders shall be on the best terms
reasonably available in the open market (the "Facility"). The
Facility shall not confer any right on the lender to participate
in the share capital of the Company or in the Business. The
Shareholders shall not be obliged to provide any capital to the
Company either by way of subscription for shares or loan notes
or by advancing loans.
17.3 Recourse
There shall be no recourse to the Shareholders in respect of the
Facility and the Shareholders shall not be required to provide
guarantees or security in respect of the Facility.
17.4 Shareholder Finance
17.4.1 Any additional finance shall be provided by the
Shareholders subscribing for loan notes or by the
Shareholders subscribing for additional shares in the
Company in each case in proportion to their share
holdings in the Company.
17.4.2 Each Shareholder shall contribute the required
additional finance within 30 Business Days (or longer
if agreed by the Shareholders) of receipt by it of a
notice in writing specifying the amount of additional
finance to be provided.
17.4.3 Subscription monies for the loan notes and
consideration for the subscription of shares shall be
paid by wire or telegraphic transfer to the Company's
bank account.
17.4.4 The terms of any loan notes shall be subject to the
approval of Shareholders save that the terms of loan
notes to be issued to each Shareholder must be
identical.
18 Acquisitions
18.1 Subject to the approval of Shareholders as a Shareholder
Reserved Matter where required by paragraph 4 of Schedule 4 the
Shareholders intend that the Company should seize upon
appropriate opportunities to make business acquisitions within
the scope of the Business in accordance with the agreed
acquisition strategy comprised within the Business Plan.
18.2 Any proposed acquisition which requires Shareholders' approval
as set out in paragraph 4 of Schedule 4 and fails to receive
such approval may, provided that the Company is not already
operating in the country or countries concerned or in countries
where Ample or Telink is the only Group company carrying on
business there or where the business conducted does not involve
the ownership of telecommunications assets in that jurisdiction
, be completed by the Shareholder which was willing to approve
the transaction (but not by means of or involving the Company or
any Group Company), (a "Non-approved Acquisition"). Once a
Shareholder has completed a Non-approved Acquisition in
accordance with this Clause the country or countries covered by
the acquisition (not, save as referred to above, being countries
where the Company was already operating) will from that point
onwards be excluded from the definition of Territory and
henceforth the Company will not conduct business within that
jurisdiction save that any activities of Ample or Telink or any
business of the Group not involving the ownership of
telecommunications assets in the relevant jurisdiction may
continue.
18.3 Without prejudice to the provisions of Clause 18.2 the
Shareholders acknowledge that it is necessary to adopt a
flexible approach in relation to possible future transactions to
develop the Business, that where possible such transactions
should, if they involve third parties as on-going participants,
be structured through separate joint venture arrangements or a
subsidiary of the Company, but that where this is not possible
and could involve the third party investors as shareholders in
the company the Shareholders will at the relevant time
co-operate with one another in good faith to seek if possible to
agree any changes acceptable to them to this Deed to accommodate
new shareholders in the Company.
19 Transfers of Shares
19.1 General prohibition against share transfers
No Shareholder can do, or agree to do, any of the following
unless it is permitted by this Clause:
19.1.1 pledge, mortgage, charge or otherwise part with or
encumber any of its Shares or any interest in any of
its Shares without the consent of the other
Shareholder(s);
19.1.2 sell, transfer or otherwise dispose of, or grant any
option over, any of its Shares or any interest in its
Shares;
19.1.3 enter into any agreement in respect of the votes
attached to any of its Shares;
19.1.4 take any action which causes such Shareholder to cease
to have some or all of the benefit of the economic
rights or the power to exercise or control the exercise
of the voting rights.
19.2 Transfers to Associated Companies
19.2.1 Subject to Clause 19.2.2, any Shareholder may transfer
all but not some of its Shares to an Associated Company
on giving prior written notice to the other
Shareholder. An Associated Company must be under an
obligation to retransfer its Shares to the Shareholder
or another Associated Company of that Shareholder
immediately if it ceases to be an Associated Company.
19.2.2 Following a transfer of Shares to an Associated
Company, the original transferring Shareholder
(but not a subsequent transferor in a series of
transfers to Associated Companies) shall remain
party to this Deed and shall be jointly and severally
liable with the transferee under this Deed as a
Shareholder in respect of the transferred Shares.
The transferee shall become a party to this Deed
and shall assume all the rights and liabilities
of the transferor under this Deed as a Shareholder
in respect of the transferred shares .
19.3 Third party offers
A Shareholder may transfer its shares to a party not being a
party to this Deed or an Associated Company of any such party
only if it receives an offer (the "Offer"):
19.3.1 which is a bona fide Offer in writing;
19.3.2 from a third party which has its own financial
resources to meet its obligations under the Offer or
has an unconditional and legally binding commitment
from a lender(s) for that finance;
19.3.3 which is irrevocable and unconditional except for any Permitted Conditi
19.3.4 which is governed by English law;
19.3.5 which is for cash in Sterling and which is for (all but
not some of) the Shares of the selling Shareholder and
the Shares of the other Shareholder if they also elect
to accept the Offer; and
19.3.6 which contains all material terms and conditions
(including the price and the intended completion date
of the Offer).
19.4 Notice of Offers
If a Shareholder receives an Offer which it wishes to accept, it
must immediately give written notice (the "Transfer Notice") to
the other Shareholder (the "Remaining Shareholder") offering to
sell those Shares which are the subject of the Offer to the
other Shareholder at the same price per Share as set out in the
Offer and on terms which are no less favourable than those
contained in the Offer. The Transfer Notice must also state:
19.4.1 the period within which the offer to sell the Shares to
the Remaining Shareholder shall remain open to be
accepted. This period must be at least 30 Business Days
from the date of the Transfer Notice (the "Acceptance
Period"); and
19.4.2 full details of all other terms and conditions of the Offer.
19.5 Options of Remaining Shareholder
Once the Remaining Shareholder has received a Transfer Notice it
may either:
19.5.1 send a written notice to the selling Shareholder (an
"Acceptance Notice") within the Acceptance Period
accepting the offer of the Shares set out in the
Transfer Notice; or
19.5.2 send a written notice to the selling Shareholder within
the Acceptance Period declining the offer set out in
the Transfer Notice; or
19.5.3 send a written notice to the selling Shareholder (a
"Sale Notice") within the Acceptance Period offering to
sell all of its Shares to the third party on the same
terms and conditions as those contained in the Offer;
or
19.5.4 not reply to the Transfer Notice within the Acceptance
Period. In this case, the Remaining Shareholder shall
be deemed not to have accepted the offer set out in the
Transfer Notice and not to have issued a Sale Notice.
19.6 Consequences of Transfer Notice
19.6.1 If the offer set out in the Transfer Notice is
accepted, the selling Shareholder must sell the Shares
covered by the Acceptance Notice to the Remaining
Shareholder.
19.6.2 If the offer set out in the Transfer Notice is not
accepted or deemed not to have been accepted and a Sale
Notice is not issued or not deemed to have been issued,
the selling Shareholder may, subject to the provisions
of Clause 19.3 as to the terms of any such Offer,
accept the Offer and sell its Shares to the third party
making the Offer on the terms and conditions of the
Offer.
19.6.3 If a Sale Notice is issued, the selling Shareholder and
the Remaining Shareholder must sell all their Shares to
the third party making the Offer on the terms and
conditions of the Offer.
19.7 Completion of transfer
The sale of the Shares in accordance with this Clause shall be
made on the following terms:
19.7.1 if any of the Permitted Conditions to the Acceptance
Notice or the Offer or the Sale Notice is not
satisfied or waived 90 Business Days after service of
the Acceptance Notice or the Offer or the Sale Notice,
then that Notice or that Offer, as appropriate, shall
lapse. Otherwise, completion of the transfer of the
Shares shall be completed seven Business Days after
the date of expiry of the Acceptance Period or the
date of satisfaction or waiver of all Permitted
Conditions (whichever is the later) (the "Transfer
Date") and at such reasonable time and place as the
Shareholders agree or, failing which, at the
registered office of the Company during normal business
hours;
19.7.2 the selling Shareholder(s) must deliver to the buyer in
respect of the Shares which it is selling on or before
the Transfer Date:
(i) duly executed share transfer forms;
(ii) the relevant share certificates; and
(iii) a power of attorney in such form and in favour of such
person as the buyer may nominate to enable the buyer to
exercise all rights of ownership in respect of the
Shares to be sold including voting rights.
19.7.3 the buyer must pay the total consideration due for the
Shares to the selling Shareholder(s) by bankers draft
or by telegraphic transfer to the bank account of the
selling Shareholder(s) notified to it for the purpose
on the Transfer Date;
19.7.4 completion of the sale of the Shares of all selling
Shareholders must take place simultaneously; and
19.7.5 in accordance with Clause 26.
19.8 Failure to complete sale
19.8.1 If after a Remaining Shareholder has issued an
Acceptance Notice or a Sale Notice, as the
case may be, and the selling Shareholder(s) in
question fail(s) or refuse(s) to comply with its/their
obligations in this Clause, the Company shall
authorise a person to execute and deliver the
necessary transfer on its/their behalf. The Company
shall receive the purchase money in trust for such
selling Shareholder(s) and cause the buyer to be
registered as the holder of the Shares being sold.
The receipt of the Company for the purchase money
shall be a good discharge to the buyer (who shall
not be bound to see to the application of those
moneys). After the buyer has been registered as
holder of the Shares being sold in purported
exercise of these powers the validity of the
proceedings shall not be questioned by any person.
19.9 General
19.9.1 The Shareholders shall keep the Company informed, at
all times, of the issue and contents of any notice
served pursuant to this Clause and any election or
acceptance relating to those notices.
19.9.2 The Shareholders waive their pre-emption rights to the
transfer of Shares contained in this Deed and the
Articles to the extent necessary to give effect to this
Clause.
19.9.3 For the purposes of this Clause all Shareholders in the
same group of companies of which it is a member will be
treated as one.
19.9.4 Each of the Shareholders undertake that they have and
will have at all times unrestricted powers to transfer
their respective Shares other than in relation to any
restrictions in this Deed or the Articles.
20 Deadlock
20.1 Escalation procedure
20.1.1 If the Board cannot reach agreement on any resolution
before it within 10 Business Days of such resolution
first being tabled at the Board meeting or three or
more consecutive Board meetings have been dissolved
because a quorum is not present, the subject of any
such resolution before them shall be referred
immediately to the Shareholders.
20.1.2 If the Shareholders cannot reach agreement on any
matter referred to them under Clause 20.1.1 or which is
a Shareholder Reserved Matter within 5 Business Days of
that matter being referred to them (a "Deadlock
Matter"), the Shareholders shall refer the Deadlock
Matter to the designated representatives of their
respective chief executive officers ("Designated
Representatives") for resolution.
20.1.3 If the Designated Representatives cannot reach
agreement on the Deadlock Matter referred to them
within 5 Business Days of that matter being referred to
them under Clause 20.1.2, the Designated
Representatives shall refer the Deadlock Matter to the
their respective chief executive officers for
resolution.
20.1.4 If the Acceptance Committee cannot reach agreement on
any resolution before it within 10 Business Days of
such resolution first being tabled to it or three or
more consecutive meetings of the Acceptance Committee
have been dissolved because a quorum is not present,
the subject of any such resolution before them shall be
referred immediately to the Board.
20.2 Auction
If the Deadlock Matter cannot be resolved by the chief executive
officers within 5 Business Days of the matter being referred to
them and any Shareholder considers that the matter may
materially adversely effect its interests or the interests of
the Company, then any Shareholder (the "Initiator") may serve a
notice (a "Deadlock Notice") on the other Shareholder(s).
20.3 Appointment of Auctioneer
The Shareholders shall appoint an independent investment bank
within 10 Business Days of the date of the Deadlock Notice to
act as auctioneer for the purposes of this Clause. If the
Shareholders cannot agree on an auctioneer within such period,
any Shareholder may request the President of the London
Investment Bankers Association to make the appointment. The
Auctioneer shall act as an expert and not as an arbitrator
and its determination shall be final and binding on the parties
(in the absence of fraud or manifest error). The fees of the
Auctioneer shall be borne equally by each of the Shareholders.
20.4 Bids
20.4.1 Within 10 Business Days after the appointment of an
Auctioneer each Shareholder shall give a written notice
containing a sealed bid (a "Bid Notice") to the
Auctioneer. The Bid Notice shall:
(i) set out the price per Share at which it is
willing to purchase for cash in Sterling all
(but not some only) of the Shares held by the
other Shareholder(s) (a "Bid Price") but must
not contain any other condition other than a
Permitted Condition;
(ii) constitute an offer by that Shareholder to buy
for cash in Sterling all (but not some only)
of the Shares held by the other Shareholder(s)
at the Bid Price;
(iii) constitute an offer by that Shareholder to
sell for cash in Sterling all (but not some
only) of its own Shares at the highest Bid
Price specified by the other Shareholder(s) in
their Bid Notice(s) if that Bid Price exceeds
its own Bid Price; and
(iv) be irrevocable without the consent of all the
Shareholders.
20.4.2 The Initiator shall specify a Bid Price per Share which
is an even number of xxxxx and the other Shareholder(s)
shall specify a Bid Price per Share which is an odd
number of xxxxx.
20.5 Auctioneer's Notice
20.5.1 The Auctioneer shall give a written notice to all the
Shareholders specifying which Shareholder (the
"Purchaser") has offered the highest Bid Price within 2
Business Days of receipt of the last Bid Notice. The
Auctioneer's notice shall be final and binding on each
of the parties (in the absence of fraud or manifest
error).
20.5.2 The Purchaser must buy the Shares of the other
Shareholder(s) at the Bid Price specified in the
Purchaser's Bid Notice and the other Shareholder(s)
must sell their Shares to the Purchaser (upon payment
of the Bid Price).
20.6 Failure to submit Bid Notice
If a Shareholder fails to serve a Bid Notice, it shall be deemed
to have accepted the offer to buy its Shares set out in the
other Shareholder(s) Bid Notice(s) and shall be bound to sell
its Shares to the Purchaser who shall be bound to buy them.
20.7 Completion of transfer
The sale of the Shares in accordance with this Clause shall be
made under the following terms:
20.7.1 if any of the Permitted Conditions to which the Bid Notice is
subject is not satisfied or waived 90 Business Days after the
service of that notice then the Bid Notice shall lapse.
Otherwise, completion of the transfer of the Shares to be
sold shall be completed seven Business Days after the
Auctioneer's notice has been served or the date of satisfaction
or waiver of all Permitted Conditions (whichever is the later)
(the "Transfer Date") and at such reasonable time and place as
the Shareholders agree or, failing which, at the registered
office of the Company during normal business hours.
20.7.2 the selling Shareholder(s) must deliver to the
Purchaser in respect of the Shares it is selling on or
before the Transfer Date:
(i) duly executed share transfer forms; and
(ii) the relevant share certificates; and
(iii) a power of attorney in such form and in favour
of such person as the Purchaser may nominate
to enable the Purchaser to exercise all rights
of ownership in respect of the Shares to be
sold including voting rights; and
20.7.3 the Purchaser shall pay the Bid Price to the selling
Shareholder(s) by banker's draft or by telegraphic
transfer to the bank account(s) of the selling
Shareholder(s) notified to it for the purpose on the
Transfer Date; and
20.7.4 in accordance with Clause 26.
21 Put and Call Options
21.1 Options in the event of dilution
In the event that either Shareholder's shareholding in the
Company is reduced to less than 25 per cent of the issued share
capital of the Company (a "Minority Shareholding"), the other
Shareholder, provided that it holds not less than 50 per cent of
the issued share capital of the Company (the "Majority
Shareholding"), shall have an option (the "Majority Call
Option") of purchasing all (but not some) of the Shares held by
the Minority Shareholder ("Minority Shares") from the Minority
Shareholder and the Minority Shareholder shall have an option
(the "Minority Put Option") of requiring the Majority
Shareholder to purchase all (but not some) of the Minority
Shares in each case for an amount equal to the Fair Value of the
Minority Shares (the "Option Price") on the terms of this
Clause.
21.2 Options on change of control
In the event that any Shareholder undergoes a change of control
(other than a solvent reorganisation or reconstruction within
its group such that its ultimate holding company is the same
after the event as it was before, or a spin-off or distribution
of the shares or assets or a tax-exempt de-merger of an
intermediate holding company to all or substantially all of the
shareholders of the ultimate holding company), the non-acquired
Shareholder shall have an option (a "Change of Control Put
Option") entitling it to sell all (but not some) of its Shares
to the Shareholder which has undergone a change of control, or
an option (a "Change of Control Call Option") entitling it to
purchase all the Shares of the Shareholder which has undergone a
change of control which in either case shall be exercisable by
it at any time within 24 months following the change of control
if during that period the acquired party (or its controlling
shareholder) proposes formally to the Board on more than one
occasion changes to the fundamental strategy or operations of
the Company which are not acceptable to the non-acquired
Shareholder.
The price at which the non-acquired Shareholder may purchase the
Shares of the acquired Shareholder will be an amount equal to
the Fair Value of the Shares (also the "Option Price") and
otherwise on the terms of this Clause. The flotation of an
intermediate holding company of a Shareholder shall not be
considered to be a change of control for the purposes of this
Clause.
21.3 Exercise
The Majority Call Option and, the Minority Put Option set out in
Clause 21.1 above and the Change of Control Put Option and
Change of Control Call Option set out in Clause 21.2 above (the
"Options") are exercisable in whole but not in part by written
notice (an "Option Notice"). An Option Notice shall be
irrevocable and unconditional except for any Permitted
Condition. Any notices to be issued in connection with this
Clause shall comply with Clause 36.
21.4 Completion of transfer
The sale and purchase of Shares in accordance with this Clause
shall be made on the following terms:
21.4.1 if any of the Permitted Conditions to an Option
Notice is not satisfied or waived 90 Business Days
after service of the Option Notice, then the Option
Notice shall lapse. Otherwise, completion of the
transfer of the Shares in respect of the Option Notice
shall be completed 7 Business Days after the date of
exercise of the Option determination of the Fair
Value of the Option Shares or the date of the
satisfaction or waiver of all Permitted Conditions,
whichever is the later (the "Option Date") at such
reasonable time and place that the Shareholders
agree or, failing which, at the registered
office of the Company during normal business hours;
21.4.2 the selling Shareholder must deliver to the buyer in
respect of the Option Shares on or before the Option
Date:
(i) duly executed share transfers forms; and
(ii) the relevant share certificates; and
(iii) a power of attorney in such form and in favour
of such person as the buyer may nominate to
enable the buyer to exercise all rights of
ownership in respect of the Shares covered by
the Option Notice including voting rights; and
21.4.3 the buyer shall pay the Option Price to the selling
Shareholder by banker's draft by telegraphic transfer
to the bank account of the selling Shareholder notified
to it for the purpose on the Option; and
21.4.4 in accordance with Clause 26.
21.5 Non-application in the case of a listing
This Clause shall not apply while the share capital of the
Company is listed on a recognised stock exchange or traded on an
automated quotation system, or when a sponsor has been formally
engaged and a resolution of the Board has been passed in
contemplation of the intention to list.
21.6 Exercise of options and subsequent listing
21.6.1 In the event that one party (the "Acquirer") acquires the Shares
of another party (the "Seller") pursuant to the
exercise of the Majority Call Option or Change of
Control Call Option and the Acquirer subsequently
disposes (or agrees to dispose) of the whole of the
issued share capital of the Company within 90
days after the acquisition of the Shares from the
Seller the Acquirer shall pay to the Seller 50 per
cent. of any increase in the price per Share
between the price per Share paid by the Acquirer
and the net proceeds (after deduction of any
applicable commissions, stamp duty, SDRT,
applicable taxes and reasonable expenses) received
by the Acquirer for the sale of the Shares to the third
party.
21.6.2 For the purposes of this Clause, a disposal includes a
sale of all or substantially all of the assets or
undertakings, an introduction or initial public
offering or the commencement of trading on any
automated quotation system of the issued share capital
of the Company.
21.6.3 Any payments pursuant to Clause 21.6.1 shall be an
adjustment to the consideration paid, and received for
the relevant shares.
22 Failure to transfer
22.1 If the selling Shareholder(s) fail(s) or refuse(s) to comply with
its/their obligations to sell in Clauses 20 and 21, the
Company shall authorise a person to execute and deliver the
necessary transfer on its/their behalf. The Company shall
receive the purchase money in trust for the selling
Shareholder(s) and cause the buyer to be registered as the
holder of the Shares being sold. The receipt of the Company for
the purchase money shall be a good discharge to the buyer (who
shall not be bound to see to the application of those moneys).
After the buyer has been registered as the holder of the
shares being sold in purported exercise of these powers the
validity of the proceedings shall not be questioned by any
person.
22.2 If any selling Shareholder fails or refuses to transfer any
Shares in accordance with Clauses 20 and 21 the other
Shareholder buyer may serve a default notice. Following
the service of a default notice (unless such non-compliance
has previously been remedied to the reasonable satisfaction
of the buyer), the defaulting selling Shareholder shall not
exercise any of its powers or rights in relation to management
of, and participation in the profits of, the Company under this
Deed, the Articles or otherwise. The Directors appointed by
the defaulting seller (or its predecessor in title) shall not:
(iv) be entitled to vote at any Board meeting;
(v) be required to attend any meeting of Directors in order to constitute a
quorum; or
(vi) be entitled to receive or request any information from the Company.
23 General
23.6.1 The Shareholders shall keep the Company informed, at all times,
of the issue and contents of any notice served pursuant to
Clauses 19, 20 and 21 and any election or acceptance relating
to those notices.
23.6.2 The Shareholders waive their pre-emption rights to the transfer
of Shares contained in this Deed and the Articles to the extent
necessary to give effect to Clauses 19, 20and 21.
23.6.3 The arbitration provisions in Clause 33 do not apply to any
Deadlock Matter except to the extent that it relates to the
interpretation of this Deed or the respective rights and
obligations of any party pursuant to this Deed.
24 Default
24.1 Events of Default
Subject to Clause 24.2, a Shareholder (the "Defaulting
Shareholder") suffers an "Event of Default" where:
24.1.1 it commits a material breach of this Deed (excluding
for the avoidance of doubt, a failure to transfer its
shares in accordance with Clauses 19, 20 and 21) and
either (1) the breach is not capable of being remedied
or (2) the Defaulting Shareholder does not remedy that
breach within 10 Business Days of the other Shareholder
sending it written notice requiring it to remedy that
breach; or
24.1.2 an order is made, petition presented, resolution passed
or meeting convened for its winding-up (or other
process whereby its business is terminated and its
assets are distributed amongst its creditors and/or
shareholders or other contributors) or there are cases
or proceedings under any applicable insolvency,
reorganisation, or similar laws in any relevant
jurisdiction or events have occurred which, under
applicable laws, would justify any such cases or
proceedings;
24.1.3 a petition is presented or other proceedings are
commenced for an administration order to be made (or
any other order to be made by which during the period
it is in force, its affairs, business and assets are
managed by a person appointed for the purpose by a
Court, governmental agency or similar body) in relation
to it, or any such order been made;
24.1.4 a receiver (including an administrative receiver),
liquidator, trustee, administrator, custodian or
similar official is appointed in any jurisdiction in
respect of the whole or any part of its business or
assets or any step has been taken for or with a view to
the appointment of such a person;
24.1.5 it is insolvent or unable to pay its debts as they fall due;
24.1.6 any of the events above occurs in relation to its holding company; or
24.1.7 it fails to take up its entitlement to shares offered
to it following Shareholder approval as a Shareholder
Reserved Matter.
24.2 PGT Licence Default
Where TadCo commits an Event of Default which is a material
breach of this Deed by virtue of TadCo refraining from
undertaking any of its obligations under this Deed ("Relevant
Obligations") on the grounds that TadCo or Transco believes that
TadCo undertaking its obligations under this Deed would put
Transco in breach of Transco's PGT Licence or its statutory
obligations, TadCo shall have a period of 3 months from
receiving Notice from SpectraSite or the Company to remedy such
breach, provided that
SpectraSite, the Company and TadCo shall during such 3 month
period use their respective reasonable endeavours:
24.2.1 to obtain Transco's agreement that TadCo undertaking
its Relevant Obligations will not cause Transco to
breach Transco's PGT Licence or its statutory
obligations; or
24.2.2 to agree an alternative to the Relevant Obligations
which would achieve substantially the same commercial
objectives and economic effect as contained in this
Deed (at no additional cost to the Company or
SpectraSite) and which do not result in Transco being
in breach of its PGT Licence or its statutory
obligations.
If the parties fail to reach agreement as contemplated by clause
24.2.1 or 24.2.2 within the 3 month period referred to above,
then TadCo shall have suffered an Event of Default not capable
of remedy provided that the parties agree that for the purposes
of Clause 24.4 any resulting sale or purchase shall be at Fair
Value. Any Investment Bank appointed pursuant to Clause 25.1
shall be directed to take account when calculating Fair Value of
any dimituation in value of Shares owned by TadCo caused by the
Event of Default suffered by TadCo contemplated by this Clause
24.2.
24.3 Notice of Default
If an Event of Default occurs, the Defaulting Shareholder shall
notify the other Shareholder as soon as reasonably practicable.
24.4 Default Notice
Following an Event of Default, the non-defaulting Shareholder
may give written notice (a "Default Notice") to the Defaulting
Shareholder within 10 Business Days of receiving notification of
the Event of Default from the Defaulting Shareholder or of its
becoming aware of the Event of Default, whichever is the later
requiring the Defaulting Shareholder either:
24.4.1 to sell all of the Shares held by the Defaulting
Shareholder (the "Sale Shares") to the non-defaulting
Shareholder at a price per Share equal to 80 per cent
of the Fair Value of the Sale Shares: or
24.4.2 to purchase all of the Shares held by the
non-defaulting Shareholder (also "Sale Shares") at a
price equal to 120 per cent. of the Fair Value of the
Sale Shares.
24.5 Completion of transfer
The sale and purchase of the Sale Shares in accordance with this
Clause shall be made on the following terms:
24.5.1 if any of the Permitted Conditions to the Default
Notice is not satisfied or waived 90 Business Days
after service of that Default Notice then that Default
Notice shall lapse. Otherwise, completion of the
transfer of the Sale Shares shall be completed 7
Business Days after written notice of the
determination of the Fair Value of the Sale Shares or
the date of satisfaction or waiver of all Permitted
Conditions (whichever is the later) (the "Transfer
Date") at such reasonable time and place that the
shareholders agree or, failing which, at the
registered office of the Company during normal business
hours;
24.5.2 the selling Shareholder shall deliver to the buyer in
respect of the Sale Shares on or before the Transfer
Date:
(i) duly executed share transfer forms; and
(ii) the relevant share certificates; and
(iii) a power of attorney in such form and in favour
of such person as the buyer may nominate to
enable the buyer to exercise all rights of
ownership in respect of the Sale Shares
including, without limitation, the voting
rights; and
24.5.3 the buyer shall pay the consideration for the Sale
Shares to the selling Shareholder by banker's draft or
by telegraphic transfer to the bank account of the
selling Shareholder notified to it for the purpose on
the Transfer Date; and
24.5.4 in accordance with Clause 26.
24.6 Failure to transfer
24.6.1 If the Defaulting Shareholder does not comply with
its obligations in this Clause, the Company shall
authorise a person to execute and deliver the
necessary transfer on its behalf. The Company shall
receive the purchase money in trust for the selling
Shareholder and cause the buyer to be registered as
the holder of the Shares. The receipt of the Company
for the purchase money shall be a good discharge to
the selling Shareholder (who shall not be bound to
see to the application of those moneys. After the
buyer has been registered as holder of the Sale
Shares in purported exercise of these powers the
validity of the proceedings shall not be questioned
by any person.
24.6.2 Following the of service of the Default Notice (unless
such non-compliance has previously been remedied to the
reasonable satisfaction of the buyer), the Defaulting
Shareholder shall not exercise any of its powers or
rights in relation to management of, and participation
in the profits of, the Company under this Deed, the
Articles or otherwise. The Directors appointed by the
Defaulting Shareholder (or its predecessor in title)
shall not:
(i) be entitled to vote at any Board meeting;
(ii) be required to attend any meeting of Directors in order to constitute a
quorum; or
(iii) be entitled to receive or request any information from the Company.
24.7 General
24.7.1 The Shareholders shall keep the Company informed at all
times of the issue and contents of any notice served
pursuant to this Clause and any election or acceptance
relating to those notices.
24.7.2 The Shareholders waive their pre-emption rights on the
transfer of Shares contained in this Deed and the
Articles to the extent necessary to give effect to this
Clause.
24.7.3 The Shareholders shall do all things within their power
to ensure that the Business is continued to be run as a
going concern during the period between
the service of the Default Notice and the completion
of the transfer of the Sale Shares.
25 Determination of Fair Value
25.1 Appointment of expert
The "Fair Value" of the Shares for the purposes of this Deed and
the Articles shall be determined by an independent investment
bank appointed by the Shareholders within 15 Business Days of
the date of the Transfer Notice or Default Notice, or Option
Notice as the case may be. If the Shareholders do not agree on
an independent investment bank, any Shareholder may request the
President of the London Investment Bankers Association to make
the appointment.
25.2 Method and adjustments
25.2.1 The independent investment bank shall determine the
Fair Value of the Shares to be sold as at the date of
the relevant Transfer Notice or Default Notice or
Option Notice, as appropriate and on the following
assumptions and bases:
(i) valuing the Shares to be sold as on an arm's length
sale between a willing seller and a willing buyer;
(ii) if the Company is then carrying on business as
a going concern, on the assumption that it
will continue to do so;
(iii) that the Shares to be sold are capable of being transferred without
restriction;
(iv) valuing the Shares to be sold as a rateable
proportion of the total value of all the
issued shares of the Company without any
premium or discount being attributable to the
class of the Shares to be sold or the
percentage of the issued share capital of the
Company which they represent; and
(v) the value of the Shares shall be calculated on
an enterprise value basis and shall take into
account all indebtedness of the Company.
25.2.2 The independent investment bank shall determine the
Fair Value to reflect any other factors which the
independent investment bank reasonably believes should
be taken into account.
25.2.3 If any difficulty arises in applying any of these
assumptions or bases then the independent investment
bank shall resolve that difficulty in such manner as it
shall in its absolute discretion think fit.
25.3 Determination, etc.
25.3.1 The independent investment bank must determine the Fair
Value within 15 Business Days of its appointment and
shall notify the Shareholders of its determination. The
fees of the independent investment bank shall be borne
by the Shareholders equally.
25.3.2 The independent investment bank shall act as an expert
and not as an arbitrator and its determination shall be
final and binding on the parties (in the absence of
fraud or manifest error).
25.3.3 The independent investment bank shall have access to
all accounting records or other relevant documents of
the Company, subject to any confidentiality provisions.
26 Terms and consequences of transfers of Shares
26.1 Transfer terms
Any sale and/or transfer of Shares pursuant to this Deed shall
be on terms that those Shares:
26.1.1 are transferred free from all claims, pledges,
equities, liens, charges and encumbrances; and
26.1.2 are transferred with the benefit of all rights
attaching to them as at the date of the relevant
Deadlock Notice or Transfer Notice or Default Notice or
Option Notice as appropriate.
26.2 Registration
The parties shall procure that a transfer of Shares is not
approved for registration unless this Deed and Articles have
been complied with. The Company shall procure that each share
certificate issued by it shall carry the following statement:
"Any disposition, transfer, charge of or dealing in any other
manner in the Shares represented by this certificate is
restricted by a Shareholders' Agreement dated [ ] April 2000 and
made between SpectraSite International, Inc., Transco
Telecommunications Asset Development Company Limited and the
Company".
26.3 Further assurance
Each party shall do all things and carry out all acts which are
reasonably necessary to effect the transfer of the shares in
accordance with the terms of this Deed in a timely fashion.
26.4 Return of documents, etc.
On ceasing to be a Shareholder, a Shareholder must hand over to
the Company material correspondence, Business Plans, schedules,
documents and records relating to the Business held by it or an
Associated Company or any third party which has acquired such
matter through that Shareholder and shall not keep any copies.
26.5 Loans, borrowings, guarantees and indemnities 26.5.1 Upon a transfer of
all the Shares held by a Shareholder:
(i) the continuing Shareholder shall procure that
all loans, borrowings and indebtedness in the
nature of borrowings outstanding owed by the
Company to a transferring Shareholder
(together with any accrued interest) are
either assigned to the continuing Shareholder
for such value as may be agreed between the
transferring Shareholder and the continuing
Shareholder, or failing agreement with the
continuing Shareholder, are repaid by the
Company;
(ii) all loans, borrowings and indebtedness in the
nature of borrowings outstanding owed by that
transferring Shareholder to the Company shall
be repaid; and
(iii) the continuing Shareholder shall use all
reasonable endeavours (but without involving
any financial obligation on its part) to
procure the release of any guarantees,
indemnities, security or other comfort given
by the transferring Shareholder to or in
respect of the Company or its Business and,
pending such release, shall indemnify the
transferring Shareholder in respect of them.
26.5.2 Any assumption of the obligations of a transferring
Shareholder by the continuing Shareholder is without
prejudice to the right of the continuing Shareholder
and/or the Company to claim from the transferring
Shareholder in respect of liabilities arising prior to
the completion date of the transfer of Shares.
26.6 Assumption of obligations
The parties shall procure that no person other than an existing
Shareholder acquires any Shares unless it enters into a Deed of
Adherence in a form reasonably acceptable to the other
Shareholder agreeing to be bound by this Deed as a Shareholder
and any other agreements in connection with the Business as a
Shareholder.
26.7 Removal of appointees
26.7.1 If a Shareholder ceases to be a Shareholder it shall
immediately upon transfer of its Shares procure the
resignation of all its appointees to the Board, as
Director, Chairman CEO or CFO as appropriate and to the
board of directors of each Group Company. If the
continuing Shareholders request, it shall do all such
things and sign all such documents as may otherwise be
necessary to procure the resignation or dismissal of
such persons from such appointments in a timely manner.
26.7.2 Those resignations shall take effect without any
liabilities on the Company for compensation for loss of
office or otherwise except to the extent that the
liability arises in relation to a service contract with
a Director who was acting in an executive capacity.
26.8 Power of Attorney
26.8.1 Each of the Shareholders irrevocably appoints the other
Shareholder by way of security for the performance of
their respective obligations under Clauses19, (Transfer
of Shares), 20(Deadlock), 21 (Put and Call Options) and
24 (Default), its attorney to execute any necessary
document required to be executed by it under the
provisions of Clauses 19, 20, 21 and 24 including any
transfer of shares or other documents which may be
necessary:
(i) to transfer title to the Shares required by 19, 20, 21
and 24; and
(ii) give any notice to be given under Clauses 19, 20, 21
and 24.
26.8.2 The purchase monies shall, to the extent that they are
not delivered to the selling party on or before the
appropriate completion date, bear interest against the
purchasing party at the rate of 3 per cent. over the
base lending rate from
time to time of Barclays Bank plc calculated on a
daily basis from such date until the selling party is
reimbursed by the other party.
26.9 Change of Name
If a Shareholder ceases to be a Shareholder and the corporate
name of the Company or any Group Company contains any word the
same or similar to the corporate name or any distinctive part of
the corporate name of that Shareholder, the remaining parties
shall procure the corporate name of the Company or any Group
Company shall be changed to exclude that word within 30 days of
the Shareholder ceasing to be a Shareholder.
27 Enforcement of rights
27.1 Rights of the Company
If at any time the Company (1) wishes to enforce or exercise any
right under or (2) has any claim against or is the subject of a
claim by any Shareholder or any member of a Shareholder's group
in respect of:
27.1.1 this Deed;
27.1.2 any other agreement or deed to which that Shareholder
or a member of that Shareholder's group is also a
party; or
27.1.3 any obligation owed to the Company or another Group
Company by any Shareholder or a member of that
Shareholder's group,
that matter shall be dealt with on behalf of the Company by a
committee of the Directors appointed by the other Shareholder
not involved in the claim. The provisions of this Clause do not
prejudice to the right of any party to dispute any claim to
which it relates.
27.2 Authority of committee
The committee of Directors appointed under this Clause has full
authority to exercise rights on behalf of the Company.
27.3 Rights of Shareholders
27.3.1 The Shareholder involved in the claim shall be entitled
to attend and speak at any general meeting of the
Company in relation to such claim but shall not vote at
such meeting.
27.3.2 The Directors appointed by the Shareholder involved in
the claim shall be entitled to attend and speak at any
Board meeting or any Board committee meeting in
relation to such claim but shall not vote at such
meeting.
27.3.3 No general meeting of the Company or Board meeting at
which a resolution in relation to such a claim proposed
shall be inquorate by virtue of the absence of the
Shareholder involved in the claim or of the Director(s)
appointed by it.
28 Competition with the Business
28.1 Restrictions
28.1.1 Unless it has obtained the prior written consent of the
other Shareholder, a Shareholder must not, and shall
procure, that all Associated Companies of the
Shareholder shall not, either alone or jointly, with,
through or on behalf of any person, directly or
indirectly:
(i) carry on or be engaged, concerned, involved or in any
way interested in any activities in any country
where the Company is carrying on business (but
excluding any countries where Ample or Telink is
the only Group company carrying on business there or
where the business conducted does not involve the
ownership of telecommunication assets in that
jurisdiction) which are in competition with the
Business otherwise than in connection with a
Non-approved Acquisition in accordance with Clause
18; or
(ii) solicit or contact with a view to the engagement or
employment by any person, any key employee, officer
or manager of the Company including for the
avoidance of doubt any member of Senior Management
within the previous two-year period, except for an
employee who has been seconded to the Company. The
placing of an advertisement of a post available to a
member of the public generally and the recruitment
of a person through an employment agency shall not
constitute a breach of this clause.
28.1.2 Where the ultimate holding company of a Shareholder has
its shares or other securities traded on any regulated
investment exchange (including without limitation, the
London Stock Exchange Limited) or an automated
quotations system ("Target Shares") and where such
ultimate holding company undergoes a change of control
in circumstances where some or all of the business of
any acquirer of the Target Shares competes with that of
the Business, then:
(i) the acquirer of the Target Shares may continue
to operate any business which is at that time
competing with the Business and to develop any
such business which is not a De Minimis
Business in each case, in any country, and
without breaching the provisions of Clause
28.1.1(i) of this Deed; provided
(ii) if the acquirer of Target Shares wishes to
commence operating a business in competition
with the Business (provided that such Business
is not De Minimis Business) such new business
of the acquirer must be commenced in
accordance with the provisions of this Deed.
28.2 Duration
The covenants set out in this Clause shall continue to apply to
a Shareholder for so long as it continues to be a Shareholder
and for a period of two years from the date on which that
Shareholder ceases to be a Shareholder.
28.3 Business outside the Territory
28.3.1 The Shareholders agree to consider other opportunities
within the scope of the Business in countries outside
of the Territory save for the United States and Canada
(the "Excluded Territories") without obligation on
either party;
28.3.2 Where the Shareholders fail to reach agreement on an
opportunity within the scope of the Business in a
country outside of the Territory either Shareholder may
pursue such opportunity alone or with others provided
it is not within the Excluded Territories or is a
country in which a Non-Approved Acquisition has taken
place.
28.3.3 For the avoidance of doubt, the Company and TadCo
respectively, shall not, and shall procure that their
respective Associated Companies do not, seek to pursue
any opportunities in the Excluded Territories, but
there shall be no such restriction in relation to
SpectraSite.
28.4 Exclusions
28.4.1 Nothing contained in this Clause precludes or restricts
any Shareholder or any of its Associated Companies:
(i) acquiring any business or company, as an
integral part of a larger transaction or
acquisition of a business, company or group of
companies, not predominantly engaged in a
competing business;
(ii) carrying on any activity carried on by it at
the Completion Date;
(iii) using any Potential Properties which are
not able to be delivered to the Company in
accordance with the Site Transfer Agreement
or which are rejected by the Company, for any
purpose provided that if the circumstances
relating to any Potential Property have
changed since the time when it was previously
considered for delivery to the Company, or
the time when it was returned by the Company
to TadCo, and the Company has been notified
of the change in circumstances and TadCo
has offered the site to the Company which
offer has not been taken up; or
(iv) carrying on a telecommunications business of
any description outside of the scope of the
Business, including for the avoidance of
doubt, a business offering PMR services or a
fixed line telecommunications business and
installing antennae on any structure provided
it is an incidental part of any fixed
telecommunications business.
28.4.2 To the extent that any fixed or wireless
telecommunication business forming part of the
business of any Shareholder or any Associated
Company of any Shareholder has a requirement for
the deployment of antennae structures or
build-to-suit the Shareholders agree that subject to
relevant competition and public procurement laws and
regulations, the Company shall be given an opportunity
to carry out such works in priority to any other
person provided it is willing to do so on terms
which are at least as favourable as those which the
Company is able to obtain generally in the market.
28.5 Invalidity
28.5.1 Each of these restrictions is an entirely separate and
independent restriction on each Shareholder and the
validity of one restriction shall not be affected by
the validity or unenforceability of another.
28.5.2 Each Shareholder considers the restrictions in this
Clause to be reasonable and necessary for the
protection of the interests of the Company. If any such
restriction shall be held to be void but would be valid
if deleted in part or reduced in application, such
restriction shall apply with such deletion or
modification as may be necessary to make it valid and
enforceable.
29 Public announcements
29.1 Shareholder approval
A Shareholder or any Associated Company shall not make any
public announcement or issue any circular relating to the
Company or this Deed without the prior written approval of the
other Shareholder (such consent not to be unreasonably
withheld). This does not affect any announcement or circular
reasonably believed to be required by law or any regulatory body
or the rules of any recognised stock exchange or any automated
quotation system.
29.2 Clause 29.1 shall not prevent the Company providing factual
information (but not projections or forecasts) to any analysts
or brokers nor prevent the Shareholders providing information
about the Company (provided by the Company for that purpose) and
that it projects a co-ordinated message about the Company.
29.3 Oral statements
Any oral statements made or replies to questions given by either
Shareholder relating to the Company shall be consistent with any
such public announcements or circulars.
30 Information, insurance, records, licences
30.1 Rights to information
A Shareholder may at all reasonable times and at its own
expense:
30.1.1 discuss the affairs, finances and accounts of the
Company and the Group with its officers and principal
executives; and
30.1.2 inspect and make copies of all books, records,
accounts, documents and vouchers relating to the
Business and the affairs of the Company and the Group.
30.2 Insurance, records and licences
The Shareholders undertake that they shall use their reasonable
endeavours to procure that:
30.2.1 the Company maintains with a well established and
reputable insurer prudent insurance in accordance with
current industry practice from time to time against all
risks usually insured against by companies carrying on
the same or similar business to the Business and which
is prudent as agreed by the Shareholders;
30.2.2 the Group keeps proper books of account and makes true
and complete entries of all its dealings and
transactions of and in relation to the Business; and
30.2.3 the Group shall use its best endeavours to obtain and
maintain in full force and effect all approvals,
consents or licences necessary for the conduct of the
Business.
31 Intellectual property rights
31.1 Any intellectual property rights including, without limitation,
patents, trade marks, service marks, registered designs,
copyright, rights in designs, inventions, confidential
information which are developed by the Company and which are not
Improvements to the Know-how shall belong to the Company.
31.2 In respect of any Improvement to the Know-how which is
undertaken by or on behalf of the Company, the Company
undertakes to assign for nil or nominal consideration such
intellectual property rights to SpectraSite or as it may direct
in consideration for the grant to the Company by SpectraSite or
the owner of the intellectual property rights in the Know-how of
a perpetual, non-exclusive royalty free licence and the Company
shall be at liberty to exploit these as it sees fit.
32 Tax Matters
32.1 Consortium tax relief
Each Shareholder which is a member of the consortium which owns
the Company for the purpose of Section 413(6) of ICTA shall be
entitled to require the Company to surrender to it (or any of
its Associated Companies) and shall (to the extent that it or
any such Associated Company is permitted by applicable tax
legislation to do so) use all reasonable commercial endeavours
to accept the surrender to it (or procure that any such
Associated Company uses all reasonable commercial endeavours to
accept the surrender to it) of a proportionate share of any
consortium relief which may be available to it and which arises
from the trading activities of the Company, for consideration
(payable on 1October following the accounting period ending
31December to which the losses relate), in the case of each
recipient, equal to the amount of the losses and/or other
amounts surrendered to it by way of consortium relief multiplied
by the rate of corporation tax on income profits for the account
period of the company to which the losses or other amounts
relate. No Shareholder shall knowingly enter into arrangements
(for the purposes of Section 410 of ICTA but excluding any such
arrangements as exist by virtue only of the execution of this
Deed or the adoption of the Articles) which shall affect the
right of any Shareholder to obtain consortium relief at any time
when the Company has losses or other amounts available for
surrender by way of consortium relief, provided that subject to
the Articles, this shall not prevent any Shareholder from
transferring Shares in accordance with the provisions relating
thereto set out in this Deed and the Articles. In the event that
payments are made for consortium relief which is subsequently
found not to be available or not required, the Company shall
repay the amount overpaid within 14 Business Days of the issue
of a written claim by the payer.
32.2 Capital Allowances
The Company acknowledges that it will not be entitled to any
capital allowances in relation to Apparatus installed on the
Properties and the Company will not seek to claim any such
capital allowances.
32.3 U.S. Tax clearance
Should SpectraSite wish to make an affirmative entity
classification election solely for U.S. tax purposes for the
Company and such election requires the consent of TadCo, TadCo
agrees that such consent will be given.
33 Duration and termination
33.1 Duration
Subject to the other provisions of this Deed, this Deed shall
continue in full force and effect without limit in point of time
until the earlier of:
33.1.1 the Shareholders agree in writing to terminate this Deed;
33.1.2 the Shares are listed on a recognised Stock Exchange or
traded on an automated quotation system; and
33.1.3 either SpectraSite or TadCo ceases to hold Shares in
the Company save as a result of any transfer to an
Associated Company; or
33.1.4 in the event that a liquidator, receiver or receiver
and manager, administrator or administrative receiver
is appointed in respect of the whole or any material
part of the assets and/or undertaking of the Company or
the Company enters into an arrangement or composition
with its creditors.
33.2 Termination
33.2.1 Termination of this Deed shall:
(i) not affect any of the provisions of this
Deed which are expressed to continue in
force after termination;
(ii) be without prejudice to any liability or
obligation in respect of any matters,
undertakings or conditions which shall not
have been observed or performed by the
relevant Shareholder prior to such
termination;
(iii) not affect any wireless telecommunication
assets installed at any of the Sites at the
date of Termination;
(iv) be without prejudice to the Company's right
to a Know-how licence under Clause 31; and
(v) will not affect the validity and/or
continuance on and subject to its terms of the
Site Transfer Agreement.
34 Confidentiality
34.1 Confidential Information
The parties shall keep confidential and use all reasonable
endeavours to ensure that their respective Associated Companies
and their respective officers, employees, agents and
professional and other advisers keep confidential any
information (the "Confidential Information"):
34.1.1 relating to the customers, Business, assets or affairs
of the Company which they may have or acquire through
ownership of an interest in the Company;
34.1.2 relating to the customers, business, assets or affairs
of the other parties or any member of their group which
they may have or acquire through being a Shareholder or
making appointments to the Board or through the
exercise of its rights or performance of its
obligations under this Deed; or
34.1.3 which relates to the contents of the any agreement or
arrangement entered into pursuant to that Agreement).
34.2 Restrictions
34.2.1 No party may use for its own business purposes or
disclose to any third party any Confidential
Information without the consent of the other parties.
34.2.2 This Clause does not apply to:
(i) information which is or becomes publicly
available (otherwise than as a result of a
breach of this Clause); or
(ii) information which is independently developed
by the relevant party or acquired from a third
party, to the extent that it is acquired with
the right to disclose it;
(iii) information which was lawfully in the
possession of the relevant party free of any
restriction on disclosure as can be shown by
that party's written records or other
reasonable evidence;
(iv) following disclosure under this Clause,
becomes available to the relevant party (as
can be demonstrated by that party's written
records or other reasonable evidence) from a
source other than another party which is not
bound by any obligation of confidentiality in
relation to such information;
(v) the disclosure by a party of Confidential
Information to its directors or employees or
to those of its Associated Companies who need
to know that confidential information in its
reasonable opinion for purposes relating to
this Deed but those directors and employees
shall not use that Confidential Information
for any other purpose;
(vi) the disclosure of information to the extent
required to be disclosed by law or any court
of competent jurisdiction, any governmental
official or regulatory authority (including
the London Stock Exchange and the Panel on
Takeovers and Mergers) or any binding
judgment, order or requirement of any other
competent authority;
(vii) the disclosure of information to any tax
authority to the extent reasonably required
for the purposes of the tax affairs of the
party concerned or any member of its group;
(viii) the disclosure to a party's professional
advisers of information reasonably required to
be disclosed for purposes relating to this
Deed or the Business;
(ix) any announcement, or circular made, or
information provided in accordance with the
terms of Clause 29.
34.2.3 Each party shall inform any officer, employee or agent
or any professional or other adviser advising it in
relation to matters relating to this Deed, or to whom
it provides Confidential Information, that such
information is confidential and shall instruct them:
(i) to keep it confidential; and
(ii) not to disclose it to any third party (other
than those persons to whom it has already been
or may be disclosed in accordance with the
terms of this Clause).
34.3 Damages not an adequate remedy
Without prejudice to any other rights or remedies which a party
may have, the parties acknowledge and agree that damages would
not be an adequate remedy for any breach of this Clause 34 and
the remedies of injunction, specific performance and other
equitable relief may not be appropriate for any threatened or
actual breach of any such provision and no proof of special
damages shall be necessary for the enforcement of the rights
under this Clause 34.
34.4 Survival
34.4.1 The disclosing party shall remain responsible for any
breach of this Clause by the person to whom that
Confidential Information is disclosed.
34.4.2 The provisions of this Clause 34.4 shall survive the
termination of this Deed for whatever cause for a
period of 2 years.
35 Arbitration
35.1 Subject to Clause 20 (Deadlock), and except as otherwise
provided in this Deed, in the case of any dispute arising
between the parties out of or in connection with this Deed, the
parties shall first attempt to settle the dispute between
themselves within 20 Business Days of any party submitting a
notice of dispute to the other parties. If such dispute cannot
be resolved among themselves within such time period the parties
shall resort to the arbitration procedure set out in this Clause
35.
35.2 The arbitration shall be held in London by a single arbitrator
jointly nominated by the parties within 20 Business Days of the
parties failing to settle the dispute in accordance with Clause
35.1 above.
35.3 Should the parties fail to agree on the appointment of an
arbitrator within the period specified in Clause 35.2, the
arbitrator shall be appointed at the request of either party by
the President of the London Chamber of Commerce.
35.4 The arbitration shall be conducted under the rules of the LCIA
save that, unless the parties agree or the arbitrator rules
otherwise:
35.4.1 the claimant shall serve his written claim document
within 14 days of the arbitrator's appointment. The
defence shall be served 14 days after that and the
reply 14 days thereafter. Each party shall attach any
documents relied upon;
35.4.2 no statement of case, witness statement, expert report
or submission shall exceed 10 pages plus attachments;
35.4.3 factual witnesses shall give evidence in chief by
witness statement. Cross-examination of any factual or
expert witness shall not exceed half a day;
35.4.4 there shall be no general disclosure of documents;
35.4.5 there shall be no oral submissions, though the
arbitrator may ask questions of the parties orally or
in writing;
35.4.6 the arbitrator shall make his award, with reasons,
within four months of his appointment.
PROVIDED THAT if:
(i) at the time the claimant commences an arbitration under
this sub-clause an expert determination has been, or is
about to be, commenced under Clause 20 (Deadlock) , and
(ii) all or some of the claims in the arbitration are so
linked to the issues in the expert determination as to
render it expedient that the same person should decide
both, and
(iii) the expert appointed under Clause 20 (Deadlock)
consents,
the said expert shall also be appointed as arbitrator under this
Clause. In that event the parties shall assist in co-ordinating
the procedures in the expert determination and the arbitration.
If the parties cannot agree whether the conditions listed at (i)
to (iii) above are satisfied, the LCIA shall decide and its
decision shall be final.
36 Notices
36.1 Any notice, claim or demand in connection with this Deed or with
any arbitration under this Deed (each a "Notice") shall be
marked "IMPORTANT LEGAL NOTICE" and sufficiently given or served
if delivered or sent: In the case of SpectraSite to:
Address: 100 Regency Forest
Xxxxx 000
Xxxx,
Xxxxx Xxxxxxxx 00000
Xxxxxx Xxxxxx xx Xxxxxxx
Fax: 001 919 468 8522
Attention: General Counsel
In the case of TadCo to:
Address: 100 Xxxxxx Xxxxxx Xxxx Xxxxx
Xxxxxxx
Xxxxxxxxx
XX0 0XX
Xxxxxx Xxxxxxx
Fax: 0118 929 2670
Attention: The Company Secretary
In the case of the Company to:
Address: 00 Xxxx Xxxx
Xxxxxx
Xxxxxx XX0 0XX
Xxxxxx Xxxxxxx
Fax: 01707 266 677
Attention: The Company Secretary
or (in each case) to such other address or fax number in the
United Kingdom as the relevant party may have notified to the
others in accordance with this Clause.
36.2 Form
Any Notice shall be in writing in English and may be sent by
courier, fax or prepaid post (first class in the case of service
in the United Kingdom and airmail in the case of international
service). Any Notice shall be deemed to have been received on
the next working day in the place to which it is sent, if sent
by courier or fax, or three days from the date of the postmark,
if sent by post.
37 Whole agreement and remedies
37.1 Whole agreement
This Deed and the documents referred to in Schedule 1 contains
the whole agreement between the parties relating to the subject
matter of this Deed at the date hereof to the exclusion of any
terms implied by law which may be excluded by contract and
supersedes any previous written or oral agreement between the
parties in relation to the matters dealt with in this Deed. In
this Clause "this Deed" includes all documents entered into
pursuant to this Deed.
37.2 No inducement
Each of the Shareholders acknowledges that it has not been
induced to enter into this Deed by any representation, warranty
or undertaking not expressly incorporated into it.
37.3 Remedies
So far as permitted by law and except in the case of fraud, each
party agrees and acknowledges that its only right and remedy in
relation to any representation, warranty or undertaking made or
given in connection with this Deed shall be for breach of the
terms of this Deed to the exclusion of all other rights and
remedies (including those in tort or arising under statute).
37.4 Legal advice
Each party to this Deed confirms it has received independent
legal advice relating to all the matters provided for in this
Deed, including the provisions of this Clause, and agrees,
having considered the terms of this Clause and the Agreement as
a whole, that the provisions of this Deed are fair and
reasonable.
38 General
38.1 Exclusion of Contracts (Rights of Third Parties) Xxx 0000 A
person who is not a party to this Deed has no right under the
Contracts (Rights to Third Parties) Xxx 0000 to enforce any term
of this Deed.
38.2 Survival of rights, duties and obligations
Termination of this Deed for any cause shall not release a party
from any liability which at the time of termination has already
accrued to another party or which thereafter may accrue in
respect of any act or omission prior to such termination.
38.3 Conflict with the Articles
In the event of any ambiguity or discrepancy between the
provisions of this Deed and the Articles, it is intended that
the provisions of this Deed shall prevail and accordingly the
Shareholders shall exercise all voting and other rights and
powers available to them so as to give effect to the provisions
of this Deed and shall further if necessary procure any required
amendment to the Articles.
38.4 No partnership
Nothing in this Deed shall be deemed to constitute a partnership
between the parties nor constitute any party the agent of any
other party for any purpose.
38.5 Release etc.
Any liability to any party under this Deed may in whole or in
part be released, compounded or compromised or time or
indulgence given by that party in its absolute discretion as
regards any party under such liability without in any way
prejudicing or affecting its rights against any other party
under the same or a like liability, whether joint and several or
otherwise.
38.6 Waiver
No failure of any party to exercise, and no delay by it in
exercising, any right, power or remedy in connection with this
Deed (each a "Right") shall operate as a waiver of that Right,
nor shall any single or partial exercise of any Right preclude
any other or further exercise of that Right or the exercise of
any other Right. The Rights provided in this Deed are cumulative
and not exclusive of any other Rights (whether provided by law
or otherwise). Any express waiver of any breach of this Deed
shall not be deemed to be a waiver of any subsequent breach.
38.7 Severance
If any provision in this Deed shall be held to be illegal,
invalid or unenforceable, in whole or in part under any
enactment or rule of law, such provision or part shall to that
extent be deemed not to form part of this Deed but the legality,
validity and enforceability of the remainder of this Deed shall
not be affected.
38.8 Variation
No variation of this Deed shall be effective unless in writing
and signed by or on behalf of each of the parties.
38.9 Assignment
The parties shall not assign or transfer all or any of their
rights or obligations under this Deed nor any benefit arising
under or out of this Deed without the prior written consent of
the other parties (such consent not to be unreasonably withheld
or delayed).
38.10 Further assurance
At any time after the date of this Deed the parties shall, and
shall use all reasonable endeavours to procure that any
necessary third party shall, at the cost of the relevant party
execute such documents and do such acts and things as that party
may reasonably require for the purpose of giving to that party
the full benefit of all the provisions of this Deed.
38.11 Invalidity
If any provision in this Deed shall be held to be illegal,
invalid or unenforceable, in whole or in part, under the law of
any jurisdiction, the legality, validity or enforceability of
such provision or part under the law of any other jurisdiction
and the legality, validity and enforceability of the remainder
of this Deed shall not be affected.
38.12 Counterparts
This Deed may be entered into in any number of counterparts, all
of which taken together shall constitute one and the same
instrument. Any party may enter into this Deed by signing any
such counterpart.
38.13 Costs
Each party shall bear all costs incurred by it in connection
with the preparation, negotiation and entry into this Deed,
except that the Shareholders shall be jointly and severally
responsible for such costs reasonably incurred by the Company,
including any
irrecoverable VAT thereon and each party shall on
demand reimburse to the Company the amount of such costs.
39 Governing law and submission to jurisdiction
39.1 Governing law
This Deed shall be governed by and construed in accordance with
English law.
39.2 Jurisdiction
Subject only to Clause 35 (Arbitration) the parties irrevocably
agree that the courts of England are to have exclusive
jurisdiction to settle any dispute which may arise out of or in
connection with this Deed.
39.3 Appointment of Process Agent
39.3.1 SpectraSite hereby irrevocably appoints SpectraSite
Communications Limited of West Park House, 00
Xxxxxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx XX00 0XX (fax:
01703 481 620, F.A.O. Company Secretary) as its agent
to accept service of process in England in any legal
action or proceedings arising out of this Deed, service
upon whom shall be deemed completed whether or not
forwarded to or received by SpectraSite provided that a
copy of any such communication is despatched to
SpectraSite in accordance with Clause 36.1 at the same
time.
39.3.2 If such process agent ceases to be able to act as such
or to have an address in England, SpectraSite
irrevocably agrees to appoint a new process agent in
England acceptable to the other parties and to deliver
to the other parties within 14 days a copy of a written
acceptance of appointment by the new process agent.
In witness whereof this document has been executed as a Deed the day and year
first before written.
Signed as a Deed by SpectraSite International, Inc.
acting by:
Director
Xxxx Xxxxxxx
Director/Secretary Xxxxxxxxxxx Xxxxxxx
Signed as a Deed by Transco Telecommunications
Asset Development Company Limited
acting by:
Director
Xxxxxx Xxxxx
Director/Secretary Xxxxx Xxxxxx
Signed as a Deed by EVER 1267 Limited acting by:
Director
Xxxx Xxxxxxx
Director/Secretary Xxxxxxxxxxx Xxxxxxx
