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EXHIBIT 7
SHAREHOLDERS AGREEMENT
THE UNDERSIGNED:
1. The public company with limited liability organised and existing under the
laws of the Netherlands VERSATEL TELECOM INTERNATIONAL N.V., with its
registered office in Amsterdam, hereby duly represented by Xxx Xxxxxxxxx
hereinafter: "VersaTel" or "Shareholder A";
2. VersaPoint organised and existing under the laws of Delaware, United States
of America, NORTHPOINT COMMUNICATIONS GROUP, Inc, with its registered
office in Delaware, hereby duly represented by Xxxxxx Xxxxxxxxx
hereinafter: "Guarantor";
3. The private company with limited liability in incorporation organised and
existing under the laws of the Netherlands NORTHPOINT B.V. i.o., with its
registered office in Amsterdam, hereby duly represented by Xxxxxx Xxxxxxxxx
hereinafter: "NorthPoint" or "Shareholder B";
4. The public company with limited liability in incorporation organised and
existing under the laws of the Netherlands VERSAPOINT N.V. i.o., with its
registered office in Amsterdam, hereby duly represented by Xxx Xxxxxxxxx
hereinafter: "VersaPoint";
the parties under 1 and 3 hereinafter also jointly referred to as the
"Shareholders" and each individually as a "Shareholder";
the parties under 1, 2, 3 and 4 hereinafter also jointly referred to as the
"Parties" and each individually as a "Party"
WHEREAS:
- VersaTel and Guarantor through its wholly owned Subsidiary NorthPoint have
agreed to establish a joint venture company for the purpose of offering
competitive local access services on a primarily wholesale basis, using
Digital Subscriber Line technologies, Internet Protocol and Content Hosting
in key markets throughout Europe, whereby VersaTel and Guarantor (partly
through its wholly owned Subsidiary NorthPoint) shall both contribute
capital, labour and know-how, all in accordance with the AOPB and Commercial
Services Agreement;
- VersaTel and Guarantor signed a document called "Proposed DSL Services 50:50
Joint Venture Business & Operating Principles" on 1 and 2 February
respectively, which sets forth the principles for the business and operation
of the joint venture company and certain related matters such as ownership,
funding and governance;
- VersaTel and NorthPoint now wish to establish the joint venture company and
wish to agree with respect to the operation of the joint venture company and
certain related matters such as (but not limited to) ownership, funding and
governance of the joint venture company, on the terms and conditions set
forth below;
HAVE AGREED THE FOLLOWING:
DEFINITIONS
AGREEMENT THIS SHAREHOLDERS AGREEMENT
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AOPB................................. The Annual Operation Plan and Budget, which includes the
3-year business plan for VersaPoint in effect from time to
time
Appraisers........................... Independent qualified appraisers or investment banks as
referred to in article 10.10
Articles of Association.............. The articles of association of VersaPoint in effect from
time to time
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AGREEMENT THIS SHAREHOLDERS AGREEMENT
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Capital Market Funding............... The funding through the capital markets
Commercial Services Agreement........ The Commercial Services Agreement entered into by and
between the Parties, dated the date hereof and attached
hereto as Schedule 1
Committed Funding.................... The funding obligation of the Shareholders A and B as set
forth in article 3.1
Employee Stock Option Plan........... The employee stock option plan providing for the issuance of
depositary receipts for C-Shares to employees and management
(including Managing Directors and certain Supervisory
Directors) of VersaPoint as will be in force from time to
time
Fair Market Value.................... The fair market value of MDF sites and other DSL assets
referred to in article 12.3, shall be 3 times the gross
costs of property, plant and equipment
General Meeting of Shareholders...... The general meeting of holders of A-Shares, B-Shares and
C-Shares
Listing.............................. A listing of the Shares on a stock exchange
Management Board..................... The management board of VersaPoint
Managing Director.................... A member of the Management Board
Management Team...................... Key employees of VersaPoint that are part of the management
team (not being members of the Management Board)
Non-disclosure Agreement............. The Non-disclosure Agreement entered into by and between
VersaTel and Guarantor, dated 15 January 2000 and attached
hereto as Schedule 2
Permitted Business................... The business of (i) developing, deploying and operating a
DSL network in the Territory (as defined herein) and (ii)
the provision of Primarily Wholesale Services (as defined
herein), both as contemplated by the AOPB, and explicitly
excluding (a) the construction of local access with fiber
and/or radio, and (b)the construction of a backbone fiber
network
Person............................... Any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust
or any other entity or any government or political
subdivision or an agency, department or instrumentality
thereof, other than a Shareholder or a Subsidiary of a
Shareholder
Primarily Wholesale Basis............ In its Territory, VersaPoint will operate primarily on a
wholesale basis. For a period of 18 months after the signing
of this Agreement, however, VersaPoint shall in the VersaTel
Territory market operate exclusively on a wholesale basis,
provided however, that VersaPoint may market its services in
any manner it chooses (including, for example, on either a
wholesale or retail basis) in the whole or a part of the
VersaTel Territory within the aforementioned 18 months
period, in order to take advantage of an opportunity or
initiative that extends substantially outside of those areas
Proprietary Information.............. Patented inventions, data, methods, processes, drawings,
specifications, designs, computer programs, know how and all
other information not generally available to the public
Shareholder A........................ VersaTel and its Subsidiaries holding A-Shares jointly
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AGREEMENT THIS SHAREHOLDERS AGREEMENT
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Shareholder B........................ NorthPoint and its Subsidiaries holding B-Shares jointly
Shareholders......................... The holders of Shares
Shares............................... Shares in the capital of VersaPoint, which includes
A-Shares, B-Shares and C-Shares, as defined in article 2.2
Subsidiary........................... A company or entity directly or indirectly controlled as
meant in article 24a Book 2 of the Dutch Civil Code
Supervisory Board.................... The supervisory board of VersaPoint
Supervisory Director................. A member of the Supervisory Board
Territory............................ The 15 current European Union Member States (i.e. The
Netherlands, Belgium, Luxembourg, Germany, Sweden, Finland,
Denmark, France, Spain, Portugal, Italy, Greece, Austria,
Great Britain, Ireland), plus Norway and Switzerland
VersaPoint........................... The joint venture company VersaPoint N.V.
VersaTel Territory................... Belgium, the Netherlands, and those areas of Germany where
VersaTel provides service from time to time
ARTICLE 1 -- PURPOSE AND OBJECTIVES OF THE JOINT VENTURE COMPANY
1.1 VersaPoint will build and operate competitive broadband local access
network and offer a broad range of broadband access services on a
primarily wholesale basis, in key markets throughout Europe, using DSL
technologies, IP and Hosting, utilising VersaTel's market presence, local
knowledge and existing facilities and operations wherever possible and
Guarantor's and/or NorthPoint's technology, OSS system, proven processes
and general know-how in deploying large scale DSL-based networks and
services, all in accordance with the AOPB and Commercial Services
Agreement;.
1.2 The Parties shall contribute labour, know-how and other support to
VersaPoint as is further specified in the AOPB and Commercial Services
Agreement.
ARTICLE 2 -- INCORPORATION OF VERSAPOINT; ISSUANCE OF SHARES; STOCK OPTION PLAN
2.1 The Shareholders A and B shall incorporate VersaPoint as a public company
with limited liability organised and existing under the laws of the
Netherlands with the name of VersaPoint N.V. if possible on 31 March 2000.
The deed of incorporation, also containing the articles of association, is
attached hereto as Schedule 3.
2.2 VersaPoint shall have an authorised capital of Euro 250.000.000, divided
into 1.000.000.000 shares class A with a nominal value of Euro 0,10 each
(the "A-Shares") and 1.000.000.000 shares class B with a nominal value of
Euro 0,10 each (the "B-Shares") and 500.000.000 shares class C with a
nominal value of Euro 0,10 each (the "C-Shares" and together with the
A-Shares and the B-Shares, the "Shares").
2.3 The A-Shares may only be held by VersaTel and/or its Subsidiaries and the
B-Shares may only be held by NorthPoint and/or its Subsidiaries. Any
other Person may only hold C-Shares. In case of a transfer or issuance of
Shares, the Shares transferred or issued shall upon transfer or issue be
converted into the proper class of Shares that may be held by the
acquiror in accordance with this article 2.3, provided, however, that
C-Shares may not be converted into A-Shares or B-Shares unless article
10.3 has been complied with.
2.4 Each Share shall have one vote in the General Meeting of Shareholders and
each Share gives entitlement to a pro rata portion of the dividends
declared. The rights attached to the A-Shares and B-Shares are equal.
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2.5 It is the intention that an Employee Stock Option Plan shall be
incorporated, for which up to a maximum of 10% of the Shares outstanding
from time to time shall be made available.
ARTICLE 3 -- FUNDING
3.1 The Shareholders A and B agree to (initially) participate either directly
or through a Subsidiary in VersaPoint on an equal basis. Each Shareholder
A and B commits to fund an amount of 50.000.000 Euro (fifty million Euro)
in cash (the "Committed Funding") against the issuance of 500.000.000
Shares to each, always provided that (i) A-Shares will be issued to
VersaTel and/or its Subsidiaries and B-Shares will be issued to
NorthPoint and/or its Subsidiaries and (ii) the number of Shares issued
shall always be in proportion to the amount of funding provided by such
Shareholder relative to the amount of funding provided by the other
Shareholder A or B.
3.2 In the event a Shareholder A or B fails to pay such part of the Committed
Funding as is requested by VersaPoint in accordance with the AOBP and
provided such Shareholder received such a request 10 days in advance,
such Shareholder shall pay interest to VersaPoint on the unpaid portion
of the amount due at an annual interest rate of eighteen percent (18%),
compounded daily (which interest shall be treated as interest income of
VersaPoint and not as a reduction of the amount due from the defaulting
Shareholder), and, at the request of a Shareholder A or B who did not
default, VersaPoint shall bring and maintain an action against the
defaulting Shareholder for the entire amount due, including interest.
3.3 In addition to the Committed Funding Shareholders A and B may contribute
the assets described in Schedules 5A and 5B attached hereto, provided
that such contributions in kind shall only be allowed if Shareholders A
and B mutually agree upon the value of such contributed assets.
Shareholder A and B hereby agree that the value of the assets set forth
on Schedule 5A and 5B shall be equal and shall not exceed 15 million
Euro.
3.4 At the date of incorporation of VersaPoint the initial cash contribution
of each Shareholder A and B amounts to 25.000.000 Euro, sufficient to
fund the initial start-up costs and capital needs of VersaPoint. Each
Shareholder A and B is obliged to provide the remainder of the Committed
Funding within 10 business days after the CEO requests such in accordance
with the AOPB.
3.5 One or more recognised international investment bankers, mutually agreed
upon by both Shareholders A and B, will be appointed as soon as possible
after the date hereof, with the goal of raising 500.000.000 Euro (five
hundred million Euro) through Capital Market Funding in addition to the
Committed Funding.
3.6 VersaPoint may at any time, subject to the provisions of this Agreement
including but not limited to 7.3(c)(iii) and 7.4(a), raise funds in
addition to the Capital Market Funding referred to in article 3.5 and the
Committed Funding, in any form VersaPoint deems fit, provided (i) that
such additional funding shall as much as possible be in the form of debt
financing on the most favourable terms reasonably obtainable as to
interest, repayment and security and (ii) that equity financing (which
for the purposes of this article includes provisions that allow a lender
a (potential) right to acquire Shares) always requires the prior approval
of the Shareholders A and B. In case VersaPoint shall decide to undertake
a debt financing to raise funds contemplated by the AOPB, but such debt
is not reasonably obtainable without an equity increase, the Shareholders
A and B shall approve an issuance of Shares requested by VersaPoint
insofar as (a) such issuance is required in order to obtain sufficient
debt financing and (b) the amount of equity raised will not exceed 10% of
the total amount of funding (i.e. both debt and equity) raised.
3.7 Notwithstanding article 19.2, any disagreement between Shareholder A and
Shareholder B regarding the material terms of, or pricing of Shares or
warrants to be issued in relation to financing involving the issuance of
Shares or warrants as contemplated by the second sentence of article 3.6,
shall be settled in a final and binding manner by an independent
investment bank who is not involved in the equity financing itself,
appointed jointly by the Shareholders A and B and if they do not agree as
to such appointment within 10 business days after the first request by
either Shareholder A or B, each Shareholder A and B has the right to
request the chairman of the Chamber of Commerce (Xxxxx van Koophandel )
in Amsterdam
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to appoint such independent internationally recognized investment bank,
which appointment shall then be binding on the Shareholders A and B. The
fees of the investment bank shall be borne by VersaPoint.
3.8 In case VersaPoint decides to raise additional equity, the Shareholders A
and B are at all times entitled, but not obliged, to maintain the
percentage of Shares held by them at that time, always provided that in
case VersaPoint decides to issue Shares in the context of a Listing or of
a Capital Market Funding, such Shareholder's right to subscribe for those
Shares shall be excluded.
3.9 The Shareholders do not have any funding obligations other than the
Committed Funding.
ARTICLE 4 -- ACCESSION TO THE JOINT VENTURE BY A PERSON
4.1 Without prejudice to article 4.2 and subject to the approval of
Shareholders A and B pursuant to article 7.2(c)(i), a Person may acquire
a shareholding in VersaPoint. The issue price shall be agreed upon
between the Shareholders A and B, but shall at any rate take into account
the cash and non-cash contribution by both VersaTel and NorthPoint and
the goodwill created by VersaPoint prior to such issue.
4.2 The approval of either Shareholder A or B as referred to in article 4.1
shall not be required in case VersaPoint decides to raise additional
equity and (i) the amount of equity requested is not taken up in full by
the Shareholders and (ii) the equity is raised in accordance with article
3.6. In such case, VersaPoint and each Shareholder A and B may invite a
Person to take up the equity not taken up by the Shareholders, provided
that such Person shall be reasonably acceptable to the other Shareholder
A or B and always subject to and without prejudice to article 4.3. Each
Shareholder A and B shall fully co-operate with the issuance of C-shares
to a Person pursuant to this article 4.2.
4.3 It will always be a condition to an issuance of Shares to a Person that
(i) the Shares issued to a Person shall be C-Shares and (ii) such Person
accedes to this Agreement (including the Non-disclosure Agreement) by
informing the Shareholders in writing that such Person is bound to the
provisions of this Agreement (including the Non-disclosure Agreement) just
like the Shareholders, and shall comply with all obligations and be
entitled to all rights conferred upon a Shareholder holding C-Shares
pursuant to this Agreement (including the Non-disclosure Agreement).
ARTICLE 5 -- SUPERVISORY BOARD
5.1 VersaPoint will have a Supervisory Board which shall advise the
Management Board of VersaPoint. The Supervisory Board shall consist of one
or more Supervisory Directors who are appointed, suspended and dismissed
by the General Meeting of Shareholders, all in accordance with article
5.3.
5.2 Each Shareholder A and B holding at least 10% of the outstanding share
capital of VersaPoint (any C-Shares not taken into account) shall have the
right to nominate one Supervisory Director and an additional Supervisory
Director for each additional full 20% of the outstanding share capital of
VersaPoint (any C-Shares not taken into account) held by such Shareholder.
5.3 The right to nominate the chairman of the Supervisory Board will
alternate between Shareholder A and Shareholder B every year as from the
date hereof, provided that a Shareholder A or B who holds less than 50% of
the outstanding share capital of VersaPoint (any C-Shares not taken into
account) shall not be entitled to nominate the chairman. VersaTel shall
have the right to nominate the chairman during the 10,5 months period
starting 31st March 2000 up to and including 15 February 2001 and
NorthPoint shall have the right to nominate the chairman during the
following 10,5 months period starting 16th February 2001 up to and
including 31st December 2001. Thereafter the right to nominate the
chairman shall alternate each following calendar year, starting with
VersaTel having the right to nominate the chairman during 2002.
5.4 The Supervisory Board decides by simple majority vote in a meeting where
a majority of the Supervisory Directors in office are present or
represented. In case of a deadlock, the chairman of the Supervisory Board
will cast the deciding vote. However, if the Supervisory Board does not
resolve to adopt the AOPB proposed by the CEO pursuant to Article 9.2 by
simple majority, the chairman cannot cast a deciding vote
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if the AOPB is as a whole materially inconsistent with the previously
adopted AOPB with respect to matters such as (but not limited to) target
markets, the number of co-location sites, the number of lines, revenue,
EBITDA and products offered, and the AOPB will then be referred to the
Shareholders A and B for approval pursuant to article 7.2
5.5 The Shareholders undertake vis-a-vis each other to vote in the General
Meeting of Shareholders -- and the Shareholders A and B shall vote in the
combined meeting of holders of A-Shares and B-Shares -- for the
Supervisory Director nominated for appointment by the Shareholders A and B
in accordance with the provisions of this Agreement.
5.6 The above provisions apply mutatis mutandis to a proposal for the
dismissal and the suspension of the Supervisory Director nominated by a
Shareholder A or B.
5.7 The remuneration for the Supervisory Directors who are not employed by a
Shareholder A or B or any of their group companies shall be up to 20.000
Euro per annum plus cost compensation and such Supervisory Directors shall
be eligible to receive options under the Employee Stock Option Plan.
Supervisory Directors who are employed by a Shareholder A or B or any of
their group companies shall be compensated only for costs.
ARTICLE 6 -- MANAGEMENT BOARD AND MANAGEMENT TEAM
6.1 The Management Board of VersaPoint is in charge of the day to day
operations of VersaPoint and its business in accordance with the terms of
this Agreement, the Commercial Services Agreement and the AOPB.
6.2 The Management Board shall consist of such number of Managing Directors
as shall be determined by the General Meeting of Shareholders. The
Shareholders hereby resolve to set up a Management Board consisting of one
Managing Director with the title of Chief Executive Officer.
6.3 The Managing Directors shall be appointed, suspended and dismissed by the
General Meeting of Shareholders.
6.4 If the performance of VersaPoint does not meet in all material respects
the targets set in the then current AOPB by the Supervisory Board for the
purposes of this article 6.4, for at least 2 consecutive quarters, each
Shareholder A and B has the right to request the dismissal of the CEO
within a period of 3 months after the end of any two such consecutive
quarters, and the other Shareholders shall then vote in favour of such a
proposal.
6.5 The CEO has full authority to hire and fire members of the management
team (who shall not be members of the Management Board) and other
employees of VersaPoint, including employees seconded by VersaTel or
NorthPoint.
ARTICLE 7 -- DECISION MAKING
7.1 All resolutions of the General Meeting of Shareholders shall be taken
with a simple majority of the votes cast, provided that a resolution shall
only be validly taken if a simple majority of the votes cast on the
A-Shares and B-shares in a meeting in which at least the majority of the
A-Shares and B-Shares is present or represented also votes in favour of
the resolution.
7.2 The following resolutions require the approval of each of the
Shareholders A and B:
a) The appointment, suspension and dismissal of the Managing Directors
(to the extent allowed under applicable law and if not so allowed,
with a maximum qualified majority as shall be allowed);
b) The adoption of the AOPB proposed by the CEO pursuant to Article 9.2
insofar as it is, as a whole, inconsistent with the previously
adopted AOPB with respect to matters such as (but not limited to)
target markets, the number of co-location sites, the number of
lines, revenue, EBITDA and products offered;
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c) The following decisions insofar as not contemplated by the AOPB:
i. issuance of Shares;
ii. the amendment of the Articles of Association;
iii. the dissolution or liquidation of VersaPoint;
iv. the declaration or payment of any dividend or the repurchase by
VersaPoint of any of its outstanding Shares;
v. approval of decisions of the Management Board pursuant to
article 7.4;
vi. the appointment of auditors of VersaPoint.
7.3 The decisions of the Management Board (either with respect to the
management of VersaPoint or in its capacity as authorised corporate body
of VersaPoint as shareholder of its subsidiaries) that require the prior
approval of the Supervisory Board are the following:
a) Adoption of the Employee Stock Option Plan and the distribution of
options pursuant thereto other than to Managing Directors;
b) Decisions not contemplated by the AOPB but otherwise relating to
matters within the scope of the Permitted Business involving an
amount not exceeding 5 million Euro individually or 15 million Euro
in the aggregate;
c) The following decisions contemplated by the AOPB:
i. To make any investment or other expenditure that is contemplated
by the AOPB and exceeding the amount of 5 million Euro;
ii. To grant a loan other than granting credit facilities in the
ordinary course of business, to (i) customers, and (ii)
Subsidiaries of VersaPoint;
iii. Taking out any loan or the entering into any other financial
arrangement for an amount exceeding 5 million Euro, other than
the withdrawal of any amounts pursuant to a credit facility for
which approval has already been obtained in accordance with
this provision;
iv. Entering into a suretyship, guarantee agreement or otherwise
accepting liability for the debts of a Person by VersaPoint or a
Subsidiary of VersaPoint;
v. To purchase, transfer, rent, lease or encumber assets involving
an amount exceeding 1 million Euro individually or 3 million
Euro in the aggregate;
vi. The entering into or terminating agreements regarding the
granting of licenses and/or transfer of intellectual property
rights owned or licensed by VersaPoint or its Subsidiaries
involving an amount exceeding 1 million Euro individually or 3
million Euro in the aggregate;
d) Unless the urgency of the matter requires immediate action and prior
approval of the Supervisory Board cannot reasonably be obtained, the
entering into legal proceedings or settlements involving an amount
exceeding 1 million Euro individually or 3 million Euro in the
aggregate;
e) Appointed or dismissal of member of the management board of a
Subsidiary of VersaPoint and determining or amending the employment
conditions of the members of the Management Team or the management
board of a Subsidiary of VersaPoint (subject to approval of the
relevant member of the Management Team or the management board of a
Subsidiary of VersaPoint);
f) The entering into or terminating of any long term agreements (other
than a joint venture or partnership) with a Person;
g) Other items as notified to the Management Board by the combined
meeting of holders of A-Shares and B-Shares.
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7.4 The decisions of the Management Board (either with respect to the
management of VersaPoint or in its capacity as authorised corporate body
of VersaPoint as shareholder of its Subsidiaries) that require the prior
approval of the General Meeting of Shareholders are the following:
a) Decisions not contemplated by the AOPB involving an amount exceeding
5 million Euro individually or 15 million Euro in the aggregate or
otherwise relating to matters outside the scope of the Permitted
Business;
b) the issuance of shares, delegation of the power to issue shares,
granting rights to acquire shares by a Subsidiary of VersaPoint;
c) the acquisition of its own shares, reducing its share capital, the
issuance of debt instruments by a Subsidiary of VersaPoint;
d) to file a petition for involuntary liquidation or suspension of
payments or similar status in another jurisdiction for VersaPoint or
a Subsidiary of VersaPoint;
e) the amendment of the articles of association of a Subsidiary of
VersaPoint;
f) the dissolution of a Subsidiary or otherwise causing a Subsidiary of
VersaPoint to cease to exist;
g) the entering into or terminating a joint-venture or partnership with
a Person;
h) entering into or terminating arrangements whereby VersaPoint or a
Subsidiary of VersaPoint takes over the management control of other
companies (not being VersaPoint or a Subsidiary of VersaPoint);
i) to acquire any interest (in whole or in part) in any company
(whether a Subsidiary or another company), or to expand the business
either by establishing a new branch or otherwise insofar as not
contemplated by the AOPB, by VersaPoint or a Subsidiary of
VersaPoint;
j) to dispose of any interest (in whole or in part) in any company
(whether a Subsidiary of VersaPoint or another company), by
VersaPoint or a Subsidiary of VersaPoint;
k) a material change in the business or strategy of VersaPoint or a
Subsidiary of VersaPoint insofar as not contemplated by the AOPB;
l) ceasing or disposing all or a substantial part of the business of
VersaPoint or a Subsidiary of VersaPoint;
m) to determine or amend the principle underlying the preparation of the
annual accounts of VersaPoint and its Subsidiaries;
n) the entering into, amending or terminating agreements or other
transactions of any kind by VersaPoint or a Subsidiary of VersaPoint
with a group company, a Shareholder or its group companies, a
Managing Director, Supervisory Director, or a company in which a
Shareholder, Managing Director or Supervisory Director has an
interest in the management board, supervisory board or as a
shareholder;
o) the transfer or encumbrance of shares and exercising voting rights
on shares in the capital of a Subsidiary of VersaPoint;
p) a proposal for a legal merger or split-up (demerger) of VersaPoint
or a Subsidiary of VersaPoint;
q) the distribution of options to Managing Directors pursuant to the
Employee Stock Option Plan.
7.5 In case the urgency of the matter requires immediate action and the prior
approval of the General Meeting of Shareholders or the Supervisory Board
for a decision of the Management Board required pursuant to article 7.3
and 7.4 cannot reasonably be obtained, the Management Board shall take
such action as is in the best interest of VersaPoint or VersaPoint and
its Subsidiaries taken as a whole. The Management Board shall inform the
General Meeting of Shareholders or the Supervisory Board as soon as
reasonably possible, at any rate in writing not later than 1 week after
such action has been taken.
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7.6 The Parties hereby agree that the procedures required in the Articles of
Association or this Agreement regarding the approval of decisions of the
Management Board also apply if it pertains to such decisions of (bodies
of) Subsidiaries of VersaPoint, such that the Supervisory Board or the
General Meeting of Shareholders shall be able to decide on any such
matters affecting a Subsidiary of VersaPoint in the same manner it would
be when such matter would affect VersaPoint. The Parties agree to use
their best endeavours to accomplish this, either by providing management
instructions to the management board of the Subsidiaries of VersaPoint, by
amending the articles of association of such Subsidiaries, or by any other
means possible under the laws applicable to the relevant Subsidiary.
ARTICLE 8 -- INFORMATION; ANNUAL ACCOUNTS
8.1 Within 15 business days after the end of each quarter and within 21
business days after the end of each financial year, VersaPoint will
provide the Shareholders A and B with a consolidated profit and loss
statement/consolidated balance sheet (accompanied by sufficient notes) and
cash flow reports pertaining to the previous period, all accompanied with
explanatory notes from the Management Board.
8.2 Each Shareholder A and B has the right at all times to gather all
information about VersaPoint, its Subsidiaries and the enterprise they
operate, through an audit or otherwise, which such Shareholder deems
appropriate. VersaPoint shall co-operate with such Shareholder (and the
advisors it has engaged) in so doing, as well as grant access to its
site(s) and grant access to its accounts, books and records and those of
its Subsidiaries during normal business hours. Such Shareholder A or B
shall consult with the other Shareholder A or B about its findings, if
such other Shareholder A or B indicate their desire to do so. The costs of
the advisors engaged in this respect by the relevant Shareholder and any
costs incurred by VersaPoint in this respect (such as personnel costs and
VersaPoint accountant engaged for the investigation) shall be borne by the
Shareholder who incurred such costs.
8.3 The CEO shall submit to the Shareholders VersaPoint's (consolidated)
annual accounts for adoption to the General Meeting of Shareholders within
five months after the close if the financial year, along with a
"management letter" drawn up by VersaPoint's auditors, and including an
unqualified opinion by VersaPoint's auditors.
8.4 The Shareholders A and B shall agree upon the appointment of auditors of
VersaPoint as soon as possible after the date hereof pursuant to article
7.2 (c)(iv). The annual accounts of VersaPoint shall be drawn up in
accordance with generally accepted accounting principles in the United
States. The financial year of VersaPoint shall be equal to the calendar
year. The first financial year shall end on 31 December 2000.
ARTICLE 9 -- ANNUAL OPERATING PLAN AND BUDGET, BUSINESS PLAN
9.1 The AOPB for the present calendar year and for the two subsequent years
which follows as agreed between the Parties is attached hereto as Schedule
4.
9.2 No later than on 1 October of every year, the CEO shall submit a proposal
for the Annual Operating Plan and Budget for the coming year and a
Business Plan for the two subsequent financial years which follow, to the
Supervisory Board for approval pursuant to article 5.4 If the AOPB is
neither approved by the Supervisory Board in accordance with article 5.4
nor by the Shareholders A and B in accordance with article 7.2, then the
AOPB then in force shall remain in force until such time as a revised AOPB
shall be approved in accordance with articles 5.4 and 7.2.
9.3 The business of VersaPoint shall be conducted in the best interest of
VersaPoint on sound profit-making commercial principles. The AOPB in force from
time to time shall be the basis for the operations of VersaPoint.
ARTICLE 10 -- ENCUMBRANCE AND TRANSFER OF SHARES
10.1 The Shareholders A and B undertake vis-a-vis one another -- without
prejudice to the provisions in the offer scheme as included in the
Articles of Association -- not to transfer the legal and/or economic
ownership of the Shares held by them, with the exception of the extent to
which:
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(i) the transfer and conveyance pertains to the full -- in other words,
legal and economic -- ownership of the Shares transferred by the
relevant Shareholder;
and
(ii) the transfer and conveyance is permitted pursuant to this
Agreement;
and
(iii) the party to whom the relevant Shares in VersaPoint are being
transferred has informed VersaPoint and the non-transferring
Shareholder(s) in writing that same is bound to the provisions of this
Agreement just like the transferring Shareholder, and shall comply
with all obligations of the transferring Shareholder, in return for
which he can claim all rights of the transferring Shareholder under
this Agreement, without prejudice to article 2.3.
10.2 If Shareholder A or B receives and wishes to accept a bona fide offer by
a Person to purchase all or part of his Shares (the "Accepting
Shareholder") the Accepting Shareholder must first offer in writing its
Shares to the other Shareholder A or B for the same price per Share as
offered to the Accepting Shareholder by the Person and moreover also under
the same conditions (the "Offer"). Any non-cash part of the Offer by the
Person shall be valued in accordance with article 10.10. The other
Shareholder A or B may accept the Offer in writing within 45 days after
the date of the Offer. Alternatively, the other Shareholder A or B may
request the Accepting Shareholder in writing within 45 days after the date
of the Offer that the Accepting Shareholder also offers all or a
proportionate part of the Shares of such other Shareholder A or B to the
Person, for the same price per Share as offered to the Accepting
Shareholder and moreover also under the same conditions. If a Shareholder
A or B makes such a request, the Accepting Shareholder can only transfer
his Shares to the Person if the Person accepts to also acquire the Shares
offered and held by the other Shareholder A or B who make(s) the
aforementioned request.
10.3 Neither Shareholder A or B shall acquire Shares from any Person unless
prior to such acquisition the acquiring Shareholder A or B shall have
offered the other Shareholder A or B the opportunity to acquire a
proportionate part of the Shares proposed to be acquired on the same
terms. The first 3 sentences of article 10.2 apply mutatis mutandis to
such offer by a Person to sell its Shares.
10.4 Insofar as article 10.2 is in conflict with the offer scheme contained in
the Articles of Association, article 10.2 shall have priority over the
Articles of Association. The price referred to in article 12.6 of the
Articles of Association shall be the price per Share as offered to the
Accepting Shareholder by the Person as meant in article 10.2 of this
Agreement. The Shareholders A and B herewith waive any of their rights
under the Articles of Association insofar as these rights would be in
conflict with the rights and obligations of the Shareholders A and B under
article 10.2 of this Agreement.
10.5 For the purposes of article 10.2 a transfer of the majority of the shares
in a Shareholder A or B or of the shares in a Person (which for the
purposes of this article includes group companies of a Shareholder)
directly or indirectly holding shares in a Shareholder A or B, not being
VersaTel or Guarantor, shall be considered to be a transfer of Shares in
the capital of VersaPoint and article 10.2 shall apply mutatis mutandis,
i.e. such Shareholder shall then be considered to offer a proportionate
part of its Shares to the other Shareholder A or B. The price of the
Shares offered pursuant to this article 10.5 shall be calculated in
accordance with article 10.10.
10.6 Without prejudice to the other provisions in this Article 10, each
Shareholder A and B is entitled to freely transfer its Shares to a
Subsidiary. Article 10.2 does not apply to such a transfer. The
Shareholders shall co-operate with such a transfer at all times and agree
to waive their rights arising on this transfer under the provisions of
the offer scheme contained in the Articles of Association.
10.7 If a Shareholder becomes insolvent or goes bankrupt, that Shareholder is
obliged to offer its Shares to the other Shareholders, all in accordance
with the offer scheme contained in the Articles of Association.
10.8 In addition to article 10.7 and any other rights a Party may have, if a
Shareholder fails to perform a material obligation pursuant to this
Shareholders Agreement or the Commercial Services Agreement or
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the AOPB, a Party may request that a Shareholder offers its Shares to the
other Shareholder(s) -- or in the case of a default by Guarantor, that
Shareholder B offers its Shares -- and if the default is capable of being
remedied, such failure continues for 30 days after such Shareholder has
received a written default notice. The period of 30 days shall be
prolonged with a period reasonably necessary to remedy the default,
provided that (i) the remedy was initiated within the 30 days period and
(ii) the defaulting Shareholder shall -- at its cost -- do all that is
reasonably required to effect the remedy within the shortest possible
period of time.
10.9 The Articles of Association of VersaPoint provide that the Shares can be
encumbered with a right of usufruct or a right of pledge subject to the
approval of the General Meeting of Shareholders. The conferral of voting
rights is excluded. The Shareholders A and B undertake vis-a-vis one
another not to encumber or otherwise grant rights with respect to the
Shares they hold with a right of usufruct or right of pledge or in any
other way without the prior, written approval of the General Meeting of
Shareholders.
10.10 In the event the purchase price offered to the Accepting Shareholder in
article 10.2 includes any property other than cash ("Non-cash
Consideration"), such purchase price shall be deemed to be the amount of
any cash included in such purchase price plus the fair market value of the
Non-cash Consideration. The fair market value of the Non-cash
Consideration (the "Property Value") shall be agreed upon between the
Accepting Shareholder and the other Shareholder A or B within 10 business
days after receipt of the Offer. Failing such agreement, the Property
Value shall be determined by Appraisers, selected by each Shareholder A
and B, provided, that if a Shareholder A or B fails to appoint an
Appraiser within 10 days following the expiration of such 10 business day
period, the Property Value shall be determined by the Appraiser who
submitted an appraisal. If two Appraisers are selected, each Appraiser
shall submit to the Shareholders A and B their respective appraisals
within 30 days after their selection. If the discrepancy between the
Appraisals is equal to or greater than 5% of the higher appraisal, then
within 10 business days after receipt of the appraisals, a third Appraiser
mutually selected by the Shareholders A and B who caused the appraisals to
be submitted (or if they cannot so select then selected by the first two
Appraisers), shall choose between the two appraisals, which selection
shall constitute a final determination of the Property Value and shall be
binding upon the Shareholders A and B. If the discrepancy between the
appraisals of the first two Appraisers is less than 5% of the higher
appraisal, then the Property Value shall be the average of the two
appraisals. The fees of each of the first two Appraisers shall be borne by
the Shareholder which selected it and the fees of the third Appraiser, if
any, shall be borne equally by the Shareholders A and B. This article
10.10 shall also apply to any determination of the fair market value of
Shares for purposes of article 10.5.
ARTICLE 11 -- LISTING
11.1 The Parties endeavour that the Shares shall be listed on a stock exchange
("Listing") as soon as possible, but in any case within a time frame
agreed by the Shareholders A and B, anticipated to be within 18 months
after the date of this Agreement.
11.2 A Listing may be decided upon by the General Meeting of Shareholders. If
the General Meeting of Shareholders resolves to a Listing, all
Shareholders will co-operate in all the actions necessary for such
Listing. In the event of a Listing, each Shareholder shall be entitled
(but not obliged) to offer its Shares or in case of a partial listing,
part of its Shares pro rata to their respective holdings, on equal terms
and conditions, subject to any lock-up and other requirements by the
investment banker and the relevant Stock Exchange(s). The Shareholders
undertake vis-a-vis one another that they shall not proceed with a
listing of the Shares without a resolution by the General Meeting of
Shareholders to that effect and before all Shareholders have been given
the opportunity to participate in the Listing as set forth in this
article.
11.3 In the event the Shares have not been the subject of a Listing within 36
months of the date hereof, and an independent investment banker
reasonably believes that no such Listing will occur during the succeeding
12 months, then, at the request of Shareholder B, VersaPoint and
Shareholder A take all action necessary to convert VersaPoint to a B.V.
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ARTICLE 12 -- NON-COMPETE
12.1 Except as otherwise provided in this article 12, neither Party shall
compete, directly or indirectly, with the Permitted Business of
VersaPoint, provided that each Party will be permitted to resell
VersaPoint's services.
12.2 Notwithstanding 12.1, VersaTel has the right to be engaged in the
Permitted Business of VersaPoint in order to build out and operate MDF
sites and other DSL assets where VersaTel's engagement in such Permitted
Business is incidental to its other telecommunications operations (to be)
conducted in that local area, at its own cost and for its own benefit,
either through building out itself or through an acquisition under the
terms set forth in article 12.3 and 12.5.
12.3 If VersaTel wishes to build out and operate MDF sites and other DSL
assets as meant in article 12.2, then (i) VersaTel shall first request
VersaPoint to build out and operate MDF sites and other DSL assets as
required by VersaTel and (ii) if VersaPoint declines to do so, VersaTel
gives an order to VersaPoint to build the MDF sites and other DSL assets
at the cost and for the benefit to VersaTel, and (iii) if VersaPoint
lacks the resources to do so, VersaTel will build out and operate the MDF
sites and other DSL assets in a manner conforming to the specifications
set by VersaPoint utilizing VersaPoint's OSS and compatible with
VersaPoint's network platforms, back office and infrastructure, at
VersalTel's cost.
12.4 VersaPoint has at any time (subject to regulatory and contractual
limitations) the right -- and if VersaTel wishes to transfer the MDF
sites and other DSL assets to a Person, VersaPoint has a first right --
to acquire the MDF sites and other DSL assets built out and operated by
VersaTel pursuant to article 12.2 and 12.3 at any time at a Fair Market
Value. If VersaPoint wishes to build out its business into an MDF site
where VersaTel has a MDF site and other DSL assets built out pursuant to
the procedures set forth in article 12.2 and 12.3, VersaPoint has the
obligation to buy the MDF site and other DSL assets from VersaTel. If
VersaPoint wishes to acquire 80% or more of the MDF sites and other DSL
assets built out by VersaTel pursuant to article 12.2 and 12.3 in a
certain metropolitan area, VersaPoint shall have the obligation to
acquire all of those MDF sites and other DSL assets built out by VersaTel
in such metropolitan area, at a Fair Market Value. If VersaPoint wishes
to acquire less than 80% of the MDF sites and other DSL assets in an area
where VersaTel has already built out MDF sites and other DSL assets
pursuant to article 12.2 and 12.3, VersaPoint shall have the right to
acquire those MDF sites and other DSL assets from VersaTel, at a Fair
Market Value. No obligation pursuant to this article 12.4 exists if and
to the extent VersaPoint has already initiated the acquisition of MDF
sites itself and incurred substantial costs in that respect.
12.5 If VersaTel acquires MDF sites and other DSL assets through an
acquisition as meant in article 12.2, VersaTel shall offer those to
VersaPoint within 10 business days after closing of the acquisition, and
VersaPoint shall then (subject to regulatory and contractual limitations)
have the right to acquire all (but not some) of those MDF sites and other
DSL assets at a value to be mutually agreed upon. If VersaTel and
VersaPoint do not agree on the value within 45 days after the acquired
assets were offered by VersaTel to VersaPoint, VersaTel shall be entitled
to retain those MDF sites and other DSL assets acquired by it and either
operate them itself or sell it to a Person.
ARTICLE 13 -- SECRECY; PROPRIETARY INFORMATION
13.1 Each of the Parties shall observe confidentiality regarding the contents
of this Agreement, as well as regarding the substance and the course of
the negotiations held between the parties in that respect, except insofar
as there is a legal requirement to make statements, in which case the
statements shall only be made after mutual consultation. The Parties
undertake vis-a-vis VersaPoint to also observe confidentiality regarding
corporate information of VersaPoint which is made available to them. The
Shareholders are, however, free -- in consultation with VersaPoint -- to
provide relevant information pertaining to VersaPoint and its
subsidiaries to a possible buyer (who is bound by a confidentiality
agreement) of its Shares as referred to in Article 10 of this Agreement.
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13.2 None of the Parties shall make any statement or provide information to
third parties regarding the contents of this Agreement without prior
consultation with and the approval of the other Parties. Such applies
particularly to any public announcements, for example in the form of a
press release.
13.3 Each of the Parties shall keep confidential the Proprietary Information
of the other Party/Parties and VersaPoint in accordance with the terms of
the Non-disclosure Agreement.
ARTICLE 14 -- INDEMNIFICATION; GUARANTEE
14.1 Each Party agrees to indemnity and hold VersaPoint harmless from and
against all damages, losses or expenses suffered or paid by VersaPoint as
a result of or arising out of such Party's failure to perform a material
obligation pursuant to this Shareholders Agreement, the AOPB, the
Non-disclosure Agreement or the Commercial Services Agreement.
14.2 Guarantor guarantees the proper performance of NorthPoint's obligations
under this Agreement (including the obligations pursuant to article
14.3), the AOPB and Commercial Services Agreement and other related
agreements, and shall be jointly and severally liable for such
obligations as if it were its own obligations.
14.3 Without prejudice to the obligations of Guarantor pursuant to article
14.2, VersaTel and NorthPoint shall guarantee the proper performance by
each of their Subsidiaries, to which they have transferred all or part of
their Shares pursuant to article 10.6, of any obligations under this
Agreement, the AOPB and Commercial Services Agreement and other related
agreements.
ARTICLE 15 -- MISCELLANEOUS
15.1 This Agreement, together with the AOPB, Commercial Services Agreement and
the Non-disclosure Agreement contain all agreements which have been made
between the Parties regarding the subject matter hereof and replaces all
previous agreements concluded between the parties regarding the subject
matter of this Agreement, including the Proposed DSL Services 50:50 Joint
Venture Business & Operating Principles referred to in the recitals.
Notwithstanding the above, the Non-disclosure Agreement shall remain in
force and effect.
15.2 In case of any inconsistencies between this Agreement, the Articles of
Association, the AOPB, the Commercial Services Agreement and the
Non-disclosure Agreement, (i) this Agreement (including the
Non-disclosure Agreement incorporated herein by reference) will have
priority over all other agreements including the Articles of Association
(insofar as permit xxx under applicable law) and (ii) the Commercial
Services Agreement shall have priority over the AOPB.
15.3 None of the Parties to this Agreement shall transfer its rights under
this Agreement to a Person without the written approval of the other
Parties, subject to the extent to which the transfer is explicitly
permitted pursuant to this Agreement.
15.4 If a provision in this Agreement is invalid (due to a conflict with a
legal requirement), the other provisions shall remain in full force. In
that case, the Parties shall replace the invalid provision with a
provision in accordance with the object and purport of this Agreement, so
that the new provision differs from the invalid provisions as little as
possible.
15.5 The Schedules to this Agreement form an integral part of this Agreement
and any reference to this Agreement shall also entail a reference to the
aforementioned annexes and vice versa
15.6 The headings used are for convenience of reference only and shall not be
taken into consideration in interpreting this Agreement.
ARTICLE 16 -- TERM
16.1 This Agreement remains in force for an unlimited period of time, but at
any rate terminates (i) with respect to a Shareholder when such
Shareholder no longer holds any Shares except for the obligations
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pursuant to article 12, which shall remain in force for a period of 1 year after
termination, (ii) if VersaPoint is dissolved, all without prejudice to rights
and obligations arisen prior to termination and articles 13 up to and including
19 shall survive any termination of this Agreement, for whatever reason.
16.2 In case of a Listing, this Agreement shall remain in force and the
Parties shall consult each other in good faith with a view to amending
such arti cles which are incompatible or inconsistent with a Listing and
the relevant Stock Exchange Rules and insofar as such articles cannot be
so amended to retain their essence, such articles shall cease to apply.
16.3 In case the Shareholders Agreement terminates vis-a-vis a Shareholder,
any commercial agreements among (amongst others) such Shareholder and
VersaPoint, will continue to be in force on the same terms and conditions
for a period of at least 3 years after such termination or as may be
provided in the relevant individual agreements.
ARTICLE 17 -- NOTIFICATIONS
All notifications to be given to a Party pursuant to this Agreement must
be effected by fax or e-mail and confirmed by registered letter and sent to the
fax numbers of e-mail addresses set forth below and the postal addresses shown
above or to such other fax number, e-mail or postal address as one of them has
informed the others of in writing (by registered letter) and if to VersaPoint,
with a copy to the other Shareholder(s).
ARTICLE 18 -- COSTS
All costs in connection with this Agreement and related agreements,
including the incorporation of VersaPoint will be borne by VersaPoint.
ARTICLE 19 -- APPLICABLE LAW AND DISPUTES
19.1 This Agreement is governed by Dutch law.
19.2 All disputes which may arise pursuant to the present Agreement or
pursuant to further agreements ensuing from this Agreement other than
disputes referred to in article 3.7, 10.10 and 12.2 shall be finally
settled by the competent Courts of the Netherlands.
Thus signed in Amsterdam on 8 March 2000
Bloestein
Raimatha
NorthPoint Communications Group, Inc.
VersaTel Telecom International N.V.
Bloestein Raimatha
NorthPoint B.V. i.o. VersaPoint N.V. i.o.
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