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Exhibit 10.15
THIS SUPPLEMENTAL AGREEMENT is made the 27 day of February 1997.
BETWEEN:
1. DIAMOND CABLE COMMUNICATIONS PLC (Registered in England No 2965241) of
Xxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx XX0 0XX ("Diamond");
2. DIAMOND CABLE COMMUNICATIONS (UK) LIMITED (formerly Diamond Cable Limited)
(Registered in England No 2357645) of Xxxxxxx Xxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx XX0 0XX ("Assignor"); and
3. ECE MANAGEMENT INTERNATIONAL, LLC, an Indiana limited liability company of
X.X Xxx 000, Xxxxxx, Xxxxxxx, 00000 XXX ("ECE").
WHEREAS:
A. By a Management Agreement effective as of 1 June 1994 between Assignor and
ECE Management Company, a partnership organised under the law of Indiana
("ECE Management"), ECE Management agreed to provide certain management
services to Assignor.
B. By an Assignment of Management Agreement and Consent effective as of 4 April
1996 ECE Management assigned its rights under the Management Agreement
referred to in Recital A to ECE, ECE assumed ECE Management's obligations
under the said Management Agreement and Assignor consented to such
assignment and assumption. The said Management Agreement as so assigned
is referred to herein as the "Management Agreement".
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C. As of 1 July, 1996, ECE, Assignor and Diamond agreed that certain amendments
to the Management Agreement would take effect and Diamond would assume
the rights and obligations of Assignor under the Management Agreement so
amended.
D. The purpose of this Supplemental Agreement is to record formally the events
referred to in Recital C.
NOW the parties hereby agree as follows:
1. With effect from 1 July, 1996, the terms of the Management Agreement were as
set out in Annex 1 to this Supplemental Agreement.
2. With effect from 1 July, 1996:
2.1 Assignor assigned to Diamond absolutely all of its rights and
obligations under the Management Agreement. Assignor shall remain
liable under the Management Agreement only as to obligations thereunder
for periods prior to 1 July, 1996 and Assignor shall have no further
rights or obligations under the Management Agreement for periods from
and after 1 July, 1996, except with respect to services performed for
periods to and excluding 1 July, 1996;
2.2 Diamond assumed all rights and obligations of Assignor under the
Management Agreement from and after 1 July, 1996 and agreed to perform
any and all obligations of Assignor from and including 1 July, 1996; and
2.3 ECE confirms its consent to the assignment by Assignor and the
assumption by Diamond described in this Clause 2.
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3. This Supplemental Agreement shall be read as one with the Management
Agreement and shall be governed by and construed in accordance with the
laws of England.
4. This Supplemental Agreement may be signed in two or more counterparts and
each counterpart shall be an original but all the counterparts shall
together form one agreement binding on the parties hereto.
IN WITNESS WHEREOF the parties have executed this Supplemental Agreement the
day and year first above written.
For and on behalf of
Diamond Cable Communications
Plc:
/s/ Xxxxxx X. Xxxx
.....................................................
Director
For and on behalf of
Diamond Cable Communications
(UK) Limited:
/s/
......................................................
Director
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For and on behalf of
ECE Management International, LLC
BY RTG Enterprises, Inc, as Member
By:
/s/ Xxxxxx X. Xxxx
.................................................
Xxxxxx X Xxxx
President
By Booth English Cable, Inc, as Member
By:
/s/ Xxxxx X. Xxxxx XX
...................................................
Xxxxx X Xxxxx XX
President
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ANNEX 1
MANAGEMENT AGREEMENT effective as of 1 July, 1996 BETWEEN:
1. DIAMOND CABLE COMMUNICATIONS PLC of Xxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx
XX0 0XX ("Diamond"); and
2. ECE MANAGEMENT INTERNATIONAL, LLC of X.X Xxx 000, Xxxxxx, Xxxxxxx 00000 XXX
("Manager")
1. Engagement of Manager
1.1 Diamond hereby engages Manager to provide those services described in
Section 3 below to the Diamond Group. For the purposes of this Agreement
"Diamond Group" shall mean Diamond and its Affiliates as defined in
Section 2. Each member of the Diamond Group shall be free to retain
consultants and enter into management and service contracts, in each case
relating to the Diamond Group's telephony and telecommunications
business, following consultation with Manager, the activities and
performance of such consultants and providers of management and other
services to be subject to the overall strategic management of Manager in
accordance with the provisions of Section 3.
1.2 Notwithstanding any other provision of this Agreement, the Board of
Directors of Diamond shall at all times exercise overall management and
control and shall supervise, direct, and monitor the performance by
Manager of its duties under this Agreement and Manager shall comply with
such direction consistent with the terms of this Agreement and applicable
law.
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1.3 Neither Diamond nor any member of the Diamond Group may enter into
any other management contract for the provision of services relating to
the Diamond Group's cable television, entertainment and information
business without the prior written consent of Manager except that any
member of the Diamond Group may enter into management or services
contracts if, in Diamond's judgement, the Diamond Group requires
technological support that is the subject of such contract and Manager
is unable to provide such technological support on reasonable terms.
2. Term; Termination of Agreement
2.1 The term of this Agreement shall commence on 1 July 1996 and shall
continue until 1 June 2004, unless earlier terminated in accordance with
this Agreement.
2.2 This Agreement shall terminate prior to the expiration of the term
described in Section 2.1 upon the first to occur of the following events:
(a) A material breach of this Agreement by, or the insolvency of, either
party to this Agreement, followed by the delivery to such party of a
notice of termination from the other party; provided, that any
termination of Manager due to alleged underperformance on the part of the
Diamond Group shall be solely under and in accordance with subparagraph
2.2(c) below;
(b) Any natural person having (directly or indirectly through an
Affiliate) a Percentage Share in the Manager of 50% or more as of July 1,
1996, shall die or shall cease for a period of three (3) months to
perform services on behalf of Manager.
(c) Delivery to Manager of a notice of termination from Diamond following
material underperformance on the part of the Diamond Group as compared
with the Diamond Group's annual business plan prepared by
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Manager and approved by the Board of Directors of Diamond, which
underperformance is other than primarily as the result of (i) fire,
explosion, flood or other calamity, (ii) any court or governmental
action, order or decree, (iii) the failure of the Diamond Group to
obtain financing as contemplated by the Business Plan, (in the case of
each of (i) through (iii) above other than as the result of actions
taken by Manager); or (iv) any other cause that is beyond the ability of
Manager to significantly influence; provided, however, prior to any
termination under this subparagraph 2.2(c) Diamond shall give notice
thereof to Manager and shall afford Manager the reasonable opportunity
to meet with the Board of Directors of Diamond to discuss such
termination and to present any reasons Manager deems appropriate for
consideration by the Board of Directors as to why such termination
should not occur.
For purposes of subparagraph 1.1 and subparagraph 2.2(b) above,
"Affiliate" means, as to any person, any other person that, either
directly or indirectly through one or more intermediaries, controls, or
is controlled by or is under common control with the person specified and
"control" shall mean possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a person,
whether through the ownership of voting securities, by contract or
otherwise. In addition, with respect to any natural person, any member
of such person's Immediate Family, or any trust for the benefit of such
natural person and/or any member of such person's Immediate Family, shall
also be deemed to be an "Affiliate" of such natural person. "Immediate
Family" means an individual's spouse, children (including adopted
children), grandchildren, parents, grandparents and siblings. For the
avoidance of doubt with respect to Xxxxxx X Xxxx ("Xxxx") and Xxxxx X
Xxxxx XX ("Xxxxx"), the term "Affiliate" shall not include any person
that controls or is under common control with Xxxx or Booth and shall
include any person in which Xxxx and Xxxxx each hold (i) directly or
indirectly, at least 40% of the voting equity securities and (ii) the
power to affect significant corporate or partnership decisions.
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3. Duties
3.1 Subject to Paragraph 1.2 hereof, Manager shall, consistent with
applicable business plans and budgets approved by Diamond's Board of
Directors, manage and act as agent in connection with:
3.1.1 preparation of strategic business plans as regards the future
investment and business strategy of the Diamond Group;
3.1.2 identification, investigation and consideration of future
investment opportunities for the Diamond Group;
3.1.3 preparation of capital budgets for the Diamond Group as regards
future investments and business plans, identification of appropriate
funding strategies and implementation thereof; and,
3.1.4 the strategic issues relating to the construction, operation, and
administration of the telephony and telecommunications and the cable
television, entertainment and information businesses of the Diamond
Group, and the retention of consultants and contractors as reasonably
deemed appropriate by Manager.
Manager shall also prepare for approval by Diamond's Board of Directors
proposed capital budgets and strategic business plans relating to the
Diamond Group. Manager shall use efforts reasonably required to perform
its duties under this Agreement.
3.2 Manager is an independent contractor, and is not a general agent or
partner of Diamond or the Diamond Group. Manager may act for or on
behalf of the Diamond Group to the extent necessary or appropriate in
performing its
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duties under this Agreement, but otherwise Manager may not incur
obligations on behalf of the Diamond Group without the approval of the
Board of Directors of Diamond.
3.3 In addition to the services described in Section 3.1, Manager shall
provide such incidental services in relation to the day-to-day operations
of the Diamond Group as may be necessary or desirable as determined by
Manager in addition to the strategic services described in Section 3.1.
4. Indemnity
4.1 Subject to the terms of Section 5.2, Diamond shall indemnify and hold
Manager harmless from and against any and all claims asserted against and
liabilities incurred by Manager in connection with its performance under
this Agreement, except for such claims and liabilities incurred as a
result of Manager's wilful misconduct, gross negligence or bad faith.
Manager shall not be liable to Diamond or the Diamond Group in the
absence of wilful misconduct, gross negligence or bad faith.
5. Compensation of Manager; Reimbursement of Expenses Incurred by Manager
5.1 As compensation for the services of Manager under this Agreement,
Diamond shall pay to Manager during the term of this Agreement an annual
management fee equal to US $200,000, representing US $180,000 in respect
of services under Section 3.1 and US $20,000 in respect of services under
Section 3.3, payable in equal quarterly instalments within thirty (30)
days after each calendar quarter (the first such calendar quarter
commencing on the effective date set forth on the first page of this
Agreement (the "Commencement Date"). The allocation of the management
fee between services provided under Section 3.1 and under Section 3.3 may
be reviewed at the end of each calendar year and adjusted by mutual
agreement of the parties.
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5.2 In addition to the fees described above, Diamond will reimburse
Manager, at cost, for all expenses (including all administrative,
overhead and other direct and indirect expenses) reasonably incurred by
Manager in connection with the performance of its duties under this
Agreement. Within thirty (30) days after the end of each calendar quarter
(the first such calendar quarter commencing on the Commencement Date),
Manager shall submit to Diamond a written request for reimbursement of
such expenses incurred during such calendar quarter, which shall include
a detailed breakdown of expenses for which reimbursement is requested,
distinguishing to the extent practicable between expenses incurred in the
course of services under Section 3.1 and services under Section 3.3,
together with copies of vouchers, invoices or other documents evidencing
such expenses. All requests by Manager for reimbursement shall be
subject to review and approval by the Board of Directors of Diamond in
accordance with standards, procedures and practices established by the
Board of Directors of Diamond from time to time. Such standards,
procedures and practices shall in any event be a continuation of and
consistent with standards, procedures and practices of Diamond (including
but not limited to those relating to the types and scope of expenses
reimbursed to the Manager), and the course of dealing between the Diamond
Group and the Manager, applied with respect to reimbursement of expenses
of the Manager under the Management Agreement for periods prior to July
1, 1996. In addition, the parties acknowledge that expenses incurred by
the Manager under this Agreement may not be allocable to services
performed under Sections 3.1 and 3.3 respectively, in the same or similar
proportions as the management fee is allocated to those services under
Section 5.1. Amounts due to Manager under this Paragraph 5.2 shall be
paid to Manager within thirty (30) days after submission of a request for
reimbursement.
5.3 Subject to the approval of the Board of Directors of Diamond, Manager
will have the authority to allocate and determine the terms and
conditions of the vesting and exercise of options to purchase
newly-issued shares of
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Diamond to be granted by Diamond to the executive management of the
Diamond Group.
6. Miscellaneous
6.1 Notices
Any notice, request, demand, report, consent, offer or other document or
instrument which may be required or permitted to be furnished to or
served upon a party hereunder shall be in writing which shall be
personally delivered (including, but not limited to, by express courier
service, facsimile machine, telex or telegram) or deposited in the mail
of the country where such party is located, postage prepaid, addressed to
the party entitled to receive the same at its address set forth below (or
such other address as such party shall designate by notice to the other
party given in the manner set forth herein):
If to Diamond or Diamond Cable Communications Plc
the Diamond Group Xxxxxxx Xxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx XX0 0XX
Attn: Chief Financial Officer
Fax: (0000) 000 0000
With a copy to: European Cable Capital Partners L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X Xxxxxxxx
Fax: (000) 000-0000
If to Manager: ECE Management International, LLC
000 Xxxx 000xx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
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With a copy to: Booth American Company
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xx Xxxxx X Xxxxx XX
Fax: (000) 000-0000
With an additional copy to: Columbia Management, Inc.
000 Xxxx 000xx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attn: Xx Xxxxxx X Xxxx
Fax: (000) 000-0000
Any notice given by telephone shall be confirmed promptly in writing (and
shall be considered given when confirmed). Any notice given personally
or by mail, courier, facsimile, telex or telegraph shall only be
effective on delivery.
6.2 Remedies Cumulative
Each right, power and remedy provided for herein or now or hereafter
existing at law, in equity, by statute or otherwise, shall be cumulative,
and the exercise or the forbearance of exercise by any party of one or
more of such rights, powers or remedies shall not preclude the
simultaneous or later exercise by such party of any or all of such other
rights, powers or remedies.
6.3 Construction
The section numbers and captions appearing in this Agreement are inserted
only as a matter of convenience and are in no way intended to define,
limit, construe or describe the scope or intent of such sections of this
Agreement, or in any way affect this Agreement. Words in the singular
shall be read and construed as though in the plural and vice versa, and
words in the masculine,
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neuter or feminine gender shall be read and construed as though in
either of the genders, where the context so applies.
6.4 Severability
If any provision of this Agreement, or the application thereof to any
person or circumstances, shall, for any reason or to any extent, be
invalid or unenforceable, such invalidity or unenforceability shall not
in any manner affect or render invalid or unenforceable the remainder of
this Agreement, and the application of that provision to other persons or
circumstances shall not be affected but, rather, shall be enforced to the
extent permitted by law. In the event of the invalidity or
unenforceability of any provision of this Agreement or the application
thereof to any person or circumstances, the parties shall, at the request
of any of the parties, negotiate in good faith to agree on changes or
amendments to this Agreement which are required to carry out the intent
and accomplish the purpose of this Agreement and the parties in light of
such invalidity or unenforceability.
6.5 Further Assurances
Each party hereto shall co-operate and shall take such further documents
as may be reasonably requested by any of the other parties hereto in
order to carry out the intent and accomplish the purpose of this
Agreement.
6.6 Successors
All the provisions of this Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the parties hereto; provided,
however, that Manager may not assign any of its duties under this
Agreement without the consent of the Board of Directors of Diamond,
except to an Affiliate of Manager that has entered into an agreement
reasonably satisfactory
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to the Board of Directors of Diamond whereby such Affiliate undertakes
to be bound by this Agreement as if it had been named herein in place
of Manager.
6.7 Entire Agreement, Amendment
This Agreement contains the complete statement of all agreements among
the parties hereto with respect to the subject matter hereof. All prior
agreements among the parties hereto respecting the subject matter hereof,
whether written or oral, are merged in this Agreement and shall be
considered superseded hereby. Any amendment, modification, waiver or
revision of this Agreement shall be considered effective only if in
writing signed by each of the parties hereto or their respective
successors or assigns.
6.8 Governing Law
This Agreement, and all rights and obligations of the parties hereto
related to this Agreement, shall be governed by and construed in
accordance with the laws of England.
6.9 Consent to Jurisdiction
Without prejudice to Section 6.1, in connection with matters arising out
of this Agreement, the parties hereby consent to the jurisdiction of the
courts of England. The parties hereby waive the right to contest the
jurisdiction of such courts on the ground of inconvenience or otherwise.
6.10 Compliance with Laws
The parties shall comply with the provisions of all applicable national,
federal, state, provincial and local laws, ordinances, decrees and
regulations (collectively "Laws") of the United States, the United
Kingdom and any other
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country in which activities are being carried out by or on behalf of
Diamond or the Diamond Group.
6.11 Counterparts
This Agreement may be signed by the parties hereto in one or more
counterparts which when taken together constitute one complete agreement.
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