EXHIBIT 10(d)
TECHNICAL ASSISTANCE AGREEMENT
THIS TECHNICAL ASSISTANCE AGREEMENT (this "Technical Assistance Agreement")
is entered into as of the 30th day of December, 1997 by and among ATLANTIC
TELE-NETWORK, INC., a Delaware corporation (the "Company"), ATLANTIC TELE-
NETWORK CO., a U.S. Virgin Islands corporation ("ATNCo."), VIRGIN ISLANDS
TELEPHONE CORPORATION, a U.S. Virgin Islands corporation ("VITELCO"), and
VITELCOM CELLULAR INC., a U.S. Virgin Islands corporation ("VCI").
WHEREAS, pursuant to an agreement between the Company and Guyana Telephone
and Telegraph Company Limited ("GTT"), dated as of January 28, 1991 (the
"Advisory Contract"), a copy of which is attached as Exhibit A hereto, the
Company has the continuing obligation to provide technical and professional
service, advice and assistance to GTT in the operation by GTT of its telephone
business, which services and assistance will be conducive to the economical
and efficient development and operation of GTT's telephone system and will
enhance its ability to provide dependable, state-of-art telephone service to
its subscribers;
WHEREAS, ATNCo., VITELCO and VCI have personnel at their disposal who are
trained and experienced in the telecommunications field and who are familiar
with the economical and efficient organization, development and operation of
telecommunications systems and services and have extensive experience in
finance, law, accounting, regulatory matters and the development of
communications apparatus, equipment and services and the rapidly changing
technological and regulatory environment affecting the telecommunications
industry, and the Company has from time to time in the past called upon ATNCo,
VITELCO and/or VCI to assist the Company in providing services and advice to
GTT pursuant to the Advisory Contract; and
WHEREAS, this Technical Assistance Agreement is being entered into in
connection with and in consideration of the transfer by the Company to
Emerging Communications, Inc., pursuant to the Subscription Agreement dated
August 11, 1997 between them, of all of the outstanding capital stock of
ATNCo., which transfer will provide significant benefits to ATNCo., VITELCO
and VCI by resolving certain management problems which have heretofore
affected such corporations.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants herein contained and subject to the terms and conditions hereinafter
set forth, the parties hereto hereby agree as follows:
ARTICLE I
SERVICES
Section 1.01. Services to be Provided. Subject to the terms and conditions
of this Technical Services Agreement, each of ATNCo., VITELCO and VCI agrees
to make available its employees to the Company at its request from time to
time during the term of this Agreement to assist and support the Company in
carrying out its obligations under the Advisory Contract. Such support and
assistance shall include performing services at the premises of ATNCo.,
VITELCO, VCI, the Company or GTT or their respective affiliates. ATNCo,
VITELCO or VCI, as the case may be, shall determine (in consultation with the
Company) which of its employees will perform any services requested hereunder.
Notwithstanding anything contained in this Technical Services Agreement to the
contrary, (a) none of ATNCo., VITELCO or VCI shall be required to make
available to the Company pursuant to this Technical Assistance Agreement at
any one time more than the greater of 3% of its employees or three employees
in the aggregate for all of them, (b) no employee of ATNCo., VITELCO or VCI
shall be required to be made available to the Company pursuant to this
Technical Assistance Agreement for a period of greater than 20 hours during
any calendar month and (c) none of ATNCo., VITELCO or VCI shall be required to
make available to the Company any employee to the extent that doing so would
interfere in any material respect with the performance of such employee's
duties to ATNCo., VITELCO or VCI, as the case may be, or otherwise cause a
burden to ATNCo., VITELCO or VCI, as the case may be.
Section 1.02. Payment for Services. The Company agrees to reimburse ATNCo.,
VITELCO and VCI, on a monthly basis, (a) for the services of each employee of
ATNCo., VITELCO or VCI, as the case may be,
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who provides services to the Company hereunder during such month, an amount
equal to the product of (i) two times the cost to ATNCo., VITELCO or VCI, as
the case may be, of the salary, wages and benefits of such employee for such
month and (ii) a fraction, the numerator of which is the number of hours such
employee provided services to the Company hereunder and the denominator of
which is the product of (x) eight and (y) the number of days during such month
when ATNCo., VITELCO or VCI, as the case may be, was open for business and (b)
for 100% of all "out-of-pocket expenses," including travel and lodging of any
employee, incurred by ATNCo., VITELCO or VCI, as the case may be, in
performing its obligations hereunder. Payments by the Company pursuant to this
Section 1.02 shall be made within ten days of receipt of an invoice from
ATNCo., VITELCO or VCI, as the case may be, showing in reasonable detail the
amounts due hereunder with respect to any month.
Section 1.03. Requests for Services. ATNCo., VITELCO and VCI shall have no
obligation to perform any services hereunder except such as may be requested
of them by the Company on reasonable notice to them, and they shall not be
entitled to any payments under Section 1.02 from the Company except for
services requested of them by the Company.
ARTICLE II
CERTAIN AGREEMENTS
Section 2.01. Advisory Contract. The Company shall not, without the prior
written consent of each of ATNCo., VITELCO and VCI (which consents shall not
be unreasonably withheld or delayed), enter into any amendment, modification,
waiver, renewal or replacement of the Advisory Contract.
Section 2.02. Indemnity. The Company shall indemnify and hold harmless each
of ATNCo., VITELCO and VCI, each of their respective affiliates and each of
their respective officers, directors, employees, agents and controlling
persons (each an "Indemnified Person") from and against any and all losses,
claims, damages, liabilities and expenses, joint or several, to which any such
Indemnified Person may become subject arising out of or in connection with
this Technical Services Agreement and the services provided hereunder, or any
claim, litigation, investigation or proceedings relating to the foregoing
regardless of whether any of such Indemnified Persons is a party thereto, and
to reimburse such Indemnified Persons for any legal or other out-of-pocket
expenses as they are incurred in connection with investigating or defending
any of the foregoing. The indemnity obligations of the Company under this
Section 2.02 shall be in addition to any liability which the Company may
otherwise have to an Indemnified Party.
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.01. Termination. This Technical Services Agreement (other than the
provisions of Sections 1.02, 2.02 and 2.03 which shall survive any
termination) (a) may be terminated (i) by the Company at any time upon written
notice to each of the other parties hereto or (ii) by ATNCo., VITELCO or VCI
upon written notice to the Company if the Company shall have breached or
violated any of the terms or provisions of this Technical Services Agreement
and (b) shall automatically terminate upon (i) the termination of the Advisory
Contract or (ii) a Change of Control (as defined below) of the Company.
As used herein, "Change of Control" means the occurrence of one or more of
the following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all
of the assets of the Company or GTT to any person or group of related persons
for purposes of Section 13(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (a "Group"); (ii) the approval by the holders of
capital stock of the Company or GTT, as the case may be, of any plan or
proposal for the liquidation or dissolution of the Company or GTT, as the case
may be; or (iii) the acquisition in one or more
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transactions of "beneficial ownership" (within the meaning of Rules 13d-3 and
13d-5 under the Exchange Act, except that a person shall be deemed to have
"beneficial ownership" of all securities that such person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time) by any person, entity or Group (other than a Permitted Holder
(as defined below) or a Group controlled by any Permitted Holder) of any
capital stock of the Company or GTT such that, as a result of such
acquisition, such person, entity or Group either (A) beneficially owns (within
the meaning of Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, more than 50% of then outstanding voting securities of the Company
or GTT entitled to vote on a regular basis in an election for a majority of
the board of directors of the Company or GTT or (B) otherwise has the ability
to elect, directly or indirectly, a majority of the members of the board of
directors of the Company or GTT.
As used herein, "Permitted Holders" means Xxxxxxxxx X. Prior, Jr. and his
estate, heirs and legatees, and the legal representatives of any of the
foregoing, including, without limitation, the trustee of any trust of which
one or more of the foregoing are the sole beneficiaries.
Section 3.02. Entire Agreement. This Technical Assistance Agreement,
together with all other written agreements which may be entered into between
the parties in connection herewith and the transactions contemplated hereby
and all other documents and instruments delivered in connection herewith and
therewith and the transactions contemplated hereby and thereby, set forth the
full and complete understanding of the parties hereto with respect to the
transactions contemplated hereby.
Section 3.03. Governing Law. This Technical Assistance Agreement shall be
governed by and construed in accordance with the laws of the State of New York
without reference to the conflicts of laws rules thereof.
Section 3.04. Headings. The headings in this Technical Assistance Agreement
are intended solely for convenience of reference and shall be given no effect
in the interpretation of this Technical Assistance Agreement.
Section 3.05. Counterparts. This Technical Assistance Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument.
Section 3.06. Benefits. This Technical Assistance Agreement will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder.
Section 3.07. Assignment. Neither this Technical Assistance Agreement nor
any right hereunder may be assigned by the parties hereto without the prior
written consent of the other parties. Subject to the foregoing, this Technical
Assistance Agreement shall be binding upon and inure to the benefit of the
successors, heirs, representatives and assigns of each party hereto.
Section 3.08. Amendment and Waiver. This Technical Assistance Agreement may
be amended only by an instrument in writing signed on behalf of each of the
parties hereto. Any term, condition or provision of this Technical Assistance
Agreement may be waived (if in writing) at any time by the party or each of
the parties entitled to the benefits thereof.
Section 3.09 Notices. All notices, requests, demands, and, other
communications hereunder shall be in writing and shall be deemed to have been
given if delivered by hand, or when sent by telex or telecopier (with
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receipt confirmed) or by registered mail, return receipt requested, addressed
as follows (or to such other address as a party may designate by notice to the
other):
(a) If to the Company:
Atlantic Tele-Network, Inc.
Estate Havensight
X.X. Xxx 0000
Xx. Xxxxxx, X.X. Xxxxxx Xxxxxxx 00000
(000) 000-0000 or 000-0000
Attention: Xxxxxxxxx X. Prior
Telecopy: (000) 000-0000
with copies to:
Xxxxx X. Xxxxx, P.C.
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
Telecopy: (000) 000-0000
(b) If to ATNCo., VITELCO or VCI:
c/o Emerging Communications, Inc.
Chase Financial Center
X.X. Xxx 0000
Xx. Xxxxx, X.X. Xxxxxx Xxxxxxx 00000-0000
(000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
with copies to:
Xxxxx Xxxxxxx, Esq.
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
Telecopy: (000) 000-0000
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IN WITNESS WHEREOF, each of the parties hereto have caused this Technical
Assistance Agreement to be duly executed, all as of the date first written
above.
Atlantic Tele-Network, Inc.
By: /s/ Xxxxxxxxx X. Prior Jr.
---------------------------------
Name: Xxxxxxxxx X. Prior Jr.
Title: Co-Chief Executive Officer
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Co-Chief Executive Officer
Atlantic Tele-Network Co.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Virgin Islands Telephone Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Vitelcom Cellular Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
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