1. DEFINITIONS AND INTERPRETATION 5
2. SUSPENSIVE CONDITION 13
3. STRATEGIC SERVICES AND PERSONNEL 14
PROVISION OF PERSONNEL BY SBCI-MSI AND TMS 17
5. ADDITIONAL CONTRIBUTION 18
12. ADDITIONAL OBLIGATIONS 28
13. MANAGEMENT STRUCTURE 29
14. SETTLEMENT OF DISPUTES 30
15. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS 35
24. WAIVER OF SOVEREIGN IMMUNITY 48
29. AMENDMENTS AND MODIFICATIONS 49
NO PARTNERSHIP OR AGENCY 49
31. THIRD PARTY BENEFICIARIES 50
APPENDIX 1: MANAGEMENT STRUCTURE
APPENDIX 2: SCHEDULE OF AUTHORISATIONS
APPENDIX 3: LONG-TERM PERSONNEL PAYMENT SCHEDULE
APPENDIX 4: SHORT-TERM PERSONNEL PAYMENT SCHEDULE
APPENDIX 5: AGGREGATE ANNUAL PAYMENT SCHEDULE
TELKOM SA LIMITED, a company incorporated under the laws of the Republic of South
Africa and having its registered office at Telkom Towers North, 000 Xxxxx Xxxxxx, Xxxxxxxx,
THINTANA COMMUNICATIONS LLC, a limited liability company organised under the laws
of the State of Delaware of the United States of America and having its registered office at #2
Read's Way, Suite 117, Corporate Commons, Xxx Xxxxxx, Xxxxxxxx 00000, Xxxxxx Xxxxxx of
SBC INTERNATIONAL MANAGEMENT SERVICES, INC., a corporation organised under
the laws of the State of Delaware of the United States of America and having its registered
office at #2 Read's Way, Suite 117, Corporate Commons, New Castle, Delaware 19720,
United States of America ("SBCI-MSI"); andTELEKOM MANAGEMENT SERVICES SDN. BHD., a corporation organised under the laws
of Malaysia and having its principal offices located at Xxxxx Xxxxxxx, Xxxxx Xxxxxx Xxxx,
00000 Xxxxx Xxxxxx ("TMS").
The SEP owns 30% (thirty percent) of the share capital of Telkom and has
established a strategic alliance with respect to Telkom.
In furtherance of such strategic alliance, Telkom and the SEP will continue to
transform Telkom into an economically successful world-class telecommunications
C. SBCISA and TMA are members of the SEP.
In furtherance of the strategic objective identified in Recital B above, the SEP has
agreed to continue to provide (or cause to be provided) certain personnel to Telkom,
to provide the Strategic Services on the terms and conditions of this Agreement.
SBCI-MSI, an Affiliate of SBCISA, is an international telecommunications
management company with extensive expertise and experience related to the
management and operation of telecommunication networks that provide a wide range
of wireline and wireless technology that supports voice, data and video services.
TMS, an Affiliate of TMA, is a management company with extensive expertise and
experience in the area of telecommunications, and specifically in competitive
SBCI-MSI and TMS have agreed to provide personnel at the request and direction of
the SEP to provide the Strategic Services to Telkom on the terms and conditions of
DEFINITIONS AND INTERPRETATION
In this Agreement and the preamble above:
means in relation to any person, any other person
which controls, is controlled by, or is under
common control with the first person (where
control is the possession, directly or indirectly, of
the power to direct or cause the direction of the
management and policies of any person through
ownership of shares, debentures, partnership
interests or otherwise) and shall include, without
limitation, when used with respect to (a) any
person, any subsidiary of such person; and (b) the
SEP, Affiliates of the SEP and those of its owners,
provided that for the purposes of this Agreement,
Telkom shall not be considered an Affiliate of the
SEP or any of the Affiliates of the SEP's owners;
amended from time to time;
means the board of directors of Telkom;
means the incumbent for the time being of the ST
Position of "CEO Telkom Group";
means the incumbent for the time being of the ST
Position of "COO Telkom";
means the incumbent for the time being of the ST
means the first day following that on which the
whole of this Agreement becomes unconditional in
terms of Clause 2 .4 below;
means the lawful currency for the time being of the
United States of America,
means any and all exchange control or similar
governmental approvals which shall, from time to
time, be required for the payment by Telkom of the
amounts provided for herein in connection with the
provision of the Strategic Services or for the
transfer of such amounts from South Africa to any
means the incumbent for the time being of the ST
means South African persons historically
discriminated against on the basis of race, colour,
origin or gender in South Africa;
means the 'Human Resources Review
Committee of the Board established pursuant to
Telkom's Articles of Association;
Services Agreement" May 1997, as amended by Addendum No 1 to it
dated as of 15 May 2002, among the Parties and
which is superseded by this Agreement on and
with effect from the Commencement Date;
means Personnel who are assigned to work in
South Africa for not less than 1 (one) year;
means Personnel who immediately prior to
providing Strategic Services to Telkom were
means the management structure of Telkom, as of
the Commencement Date, as shown in Appendix 1
attached hereto and as may be amended from
means the Minister for Communications of the
Government of South Africa;
means the Management and Technical Services
Agreement, dated 26 February 1997 among the
means the shareholders' agreement among
Telkom, the Minister and the SEP dated 14 May
1997, as amended by amendment No. 1 dated 18
February 1999, which is being terminated in terms
of a termination agreement which is being entered
into among the same parties at or about the same
means Personnel who are not Malaysian
Personnel or US Personnel;
means the parties to this Agreement, and a "Party"
means any one of them as the context may
shall mean any work, residence, immigration or
other permit, licence or clearance which, under the
laws of South Africa, is required to be obtained
and/or maintained by the SEP, any Personnel
Provider and/or Personnel in connection with the
provision of the Strategic Services hereunder;
means persons who provide Strategic Services
means, with respect to any Personnel, any person
which directly or indirectly provides such
Personnel to Telkom at the request of the SEP for
the purpose of providing the Strategic Services;
and for purposes of this Agreement, shall include,
without limitation, SBCI-MSI and TMS (to the
extent they provide Personnel pursuant to
Clause 4 of this Agreement); and such other
Affiliates of SBCISA and TMA respectively, chosen
by the SEP in its sole and absolute discretion,
which may from time to time provide Personnel at
the request of the SEP to perform the Strategic
Services as contemplated by this Agreement;
means the licence for the provision of public
switched telecommunication services issued to
Telkom by the Minister pursuant to Section 36 of
the Telecommunications Act;
means the new shareholders' agreement which is
being entered into among the Minister and the
SEP at or about the same time as this Agreement,
and which will replace the Original Shareholders'
means SBC International Inc., a company
incorporated under the laws of the State of
Delaware of the United States of America, and a
parent company of SBCISA and SBCI-MSI on the
means SBC International South Africa LLC, a
limited liability company organised under the laws
of the State of Delaware of the United States of
means the schedule or other record of the nature
and extent of any authorities conferred on
members of the Management Structure set forth in
Appendix 2 attached hereto;
"Search Committee" means a committee of Telkom constituted in
accordance with the provisions of Clause 8. 1. 2
means an incumbent for the time being of an SEP
means the positions identified in the Management
Structure by the letter "B" as "SEP Appointments";
means the positions identified in the Management
Structure by the letter "B*" as "SEP Appointments"
which, when the Management Structure was
adopted, were being filled by Historically
Disadvantaged Individuals in anticipation of the
Transition Period as contemplated in clause
4. 05(c) of the Original Shareholders' Agreement;
means the USM Positions identified in the
Management Structure by the letter "C" as "SEP
Appointments", but to be made only as and when
requested by Telkom and agreed to by the SEP in
accordance with the provisions of Clause 7. 2
means the positions which the SEP is entitled to fill
in terms of the Management Structure, being the
SEP Class B Positions, the SEP Class B*
Positions and the SEP Class C Positions;
means the 2 (two) positions shown in the
Management Structure as "♦2 Group Executives
B" with reporting lines to the CEO;
means the ordinary shares of Telkom, each of
R10.00 par value or such other value determined
in accordance with the Memorandum and Articles
of Association of Telkom;
means the Share Transfer Agreement among the
SEP, Telkom and the Minister dated
means Personnel who are assigned to work in
South Africa for less than 1 (one) year;
means the date on which this Agreement is last
shall have the meaning ascribed to it in the
Restated Shareholders' Agreement;
means the Republic of South Africa;
means the separate positions shown in the
Management Structure for which specific titles are
shown in an abbreviated form, such as "CTO",
"CFO", "ME Bus/Govt", "GE Corp Corns" and "MD
TDS" (which are mentioned by way of examples
only), and shall include the SEP Strategic
Positions, and which are all the positions shown in
the Management Structure other than the USM
means certain management and technical services
and advice to be provided to the Telkom Group by
Personnel in accordance with the terms and
conditions of this Agreement which relate to the
following ;business management, oversight of
personnel matters, development and
implementation of marketing plans and other
corporate strategies, network planning and
supervision, network operations, budget planning,
payroll processing, internal financial support
services, technical advice and assistance,
regulatory compliance, customer billing and other
"Telecommunications means the Telecommunications Act, No. 103 of
Act" 1996 of the laws of South Africa as in effect on the
date hereof and as amended from time to time;
means Telkom, its subsidiaries and Affiliates from
time to time and shall be deemed to include
means the positions identified in the Management
Structure by the letter "A" as positions to be filled
means Telekom Malaysia Africa Sdn. Bhd., a
corporation organised under the laws of Malaysia;
means Telekom Malaysia Berhad, a company
incorporated under the laws of Malaysia and the
ultimate parent company of TMA and TMS;
means the period defined as such in the Original
means Personnel who immediately prior to
providing Strategic Services to Telkom were
domiciled in the United States;
means the 24 (twenty-four) positions for senior
managers shown in the Management Structure as
"# Senior Managers B" and "V Senior Managers
C" whose reporting lines are flexible in the
Management Structure and for whom no specific
titles are designated; and
means each of Vodacom Group (Proprietary)
Limited, Vodacom (Proprietary) Limited and their
In this Agreement and the preamble above:
references to a person include, without limitation, an individual, firm, a
body corporate and an unincorporated association of persons;
references to a natural person include his or her estate and personal
references to a Party include references to the successors or permitted
assigns and transferees of its rights and/or obligations (immediate or
otherwise) of that Party;
references to a 'subsidiary' shall be construed as references to a
subsidiary as defined in the Companies Act, 1973 as at the Signature
references to a statute or statutory provision include any statute or
statutory provision which amends, extends, consolidates or replaces
the same, or which has been amended, extended, consolidated or
replaced by the same, and shall include any orders, regulations,
instruments or other subordinate legislation made under the relevant
the singular shall include the plural and words importing the masculine
gender shall include the feminine and neuter genders, and vice versa.
1. 3 Clauses 1.1 and 1.2 above apply unless the contrary intention appears.
The headings in this Agreement do not affect its interpretation and references
to Clauses are references to clauses to this Agreement.
Any Annex, Appendix or Schedule to this Agreement shall take effect as if set
out in this Agreement and references to this Agreement shall include its
Annexes, Appendices and Schedules.
The provisions of this Clause 2 and Clauses 1, 14, 18, 19, 20, 21, 22, 23, 24,
25, 26, 27, 28, 29, 30, and 31 shall take effect and become operative
immediately upon the Signature Xxxx.
Subject to Clause 2. 1 above, the whole of this Agreement shall be subject to
the fulfilment of the suspensive condition that by 30 November 2003 or by
such later date as may be agreed upon in writing by the Parties before 30
November 2003 any necessary Exchange Control Approvals required for
entering into and implementing this Agreement are duly obtained in writing in
accordance with the requirements of those Regulations.
If the suspensive condition referred to in Clause 2. 2 above is not fulfilled by
30 November 2003 or by such later date as may be agreed upon in writing by
the Parties before 30 November 2003 then the provisions of this Agreement
that are suspended shall not take effect and those that have taken effect and
become operative shall fall away, unless otherwise agreed in writing by the
If the suspensive condition referred to in Clause 2. 2 above is fulfilled then all
the provisions of this Agreement, which were suspended, in terms of
Clause 2. 2 above shall also take effect and become operative, and the whole
of this Agreement shall accordingly become unconditional.
Each Party shall sign all such documents and do everything else that may
reasonably be required of it by the other Parties to bring about the fulfilment
of the suspensive condition referred to in Clause 2. 2 above, and all of the
Parties shall co-operate with each other in all respects to that end.
3. STRATEGIC SERVICES AND PERSONNEL
From the Commencement Date until the expiration or termination of this
Agreement in accordance with Clause 17 below, and, subject to the
provisions of this Agreement, the SEP shall, subject to obtaining any Permits,
be entitled and obligated to provide Personnel to Telkom to serve as SEP
Appointees to provide Strategic Services to Telkom, provided such Personnel
are appointed in compliance with the provisions of this Agreement.
All candidates for SEP Positions submitted to Telkom pursuant to this
Agreement shall be selected in the sole and absolute discretion of the XXX.
Such discretion shall include whether Personnel are Malaysian Personnel,
US Personnel or Other Personnel
Subject to the provisions of this Agreement, all SEP Appointees shall be
appointed, dismissed and replaced by Telkom at the exclusive direction of the
SEP, and the SEP shall be entitled to require the removal and replacement of
all SEP Appointees with or without cause from time to time, in its sole
Subject to Clause 9 1 below, no SEP Appointee shall be dismissed without
the SEP's approval except by the Board for gross incompetence, breach of
any of Telkom's policies against discrimination (based on, inter alia, race,
sex, national origin or colour) or repeated or significant breaches of any other
policies of Telkom, breach of duty to Telkom or other just cause If any SEP
Appointee is removed pursuant to this Clause 3 4, then the SEP shall be
entitled to appoint such person's replacement, it being expressly agreed that
the SEP's rights with respect to SEP Appointees shall not be affected in any
The SEP shall be entitled to provide to Telkom (or arrange to be provided to
Telkom) Long-Term Personnel and Short-Term Personnel as SEP
Appointees, for purposes of this Agreement and Telkom shall be obliged to
appoint such Personnel to perform Strategic Services, provided that:
except as otherwise provided in this Agreement, the fees payable by
Telkom to the SEP and all Personnel Providers hereunder in
connection with their provision of Personnel, shall not exceed the
annual amounts set forth in Appendix 5; and
3.5. 2 if in any such year, amounts payable under this Agreement to the SEP
and Personnel Providers exceed in the aggregate the amount set forth
in Appendix 5 with respect to such year, Telkom and the SEP shall
negotiate in good faith to reach agreement regarding additional fees, if
any, to be paid by Telkom to the SEP or any Personnel Provider for
Personnel thereafter provided to Telkom during such year
Subject to Clause 4 below, the SEP, in its sole and absolute discretion may,
from time to time, substitute (or arrange for the substitution of) Malaysian
Personnel or US Personnel provided to Telkom to provide the Strategic
Services with Other Personnel (and vice versa). In the event that any Other
Personnel are provided to Telkom to provide Strategic Services, Telkom shall
pay a fee to the SEP or the Personnel Provider which provides such
Personnel, as applicable, with respect to any such other Personnel, in
accordance with Clause 11 in an amount equal to the corresponding fee set
forth with respect to US Personnel in Appendices 3 or 4, as applicable,
except that if (i) such Other Personnel are domiciled in South Africa prior to
their appointment by the SEP to provide the Strategic Services and (ii) such
Other Personnel is appointed to fill a SEP Position other than a ST position,
then the fee payable shall be commensurate with the amount normally paid to
a South African counterpart employed by Telkom.
Telkom shall be obliged to accept Personnel provided to it by the SEP or a
Personnel Provider pursuant to this Clause 3 in the position for which they
are provided. No Personnel provided by the SEP or any Personnel Provider
to Telkom hereunder shall be deemed an employee or agent of Telkom by
virtue of such arrangement but such Personnel shall nevertheless comply
with Telkom's policies, codes of conduct and delegation of authority
applicable generally to all Telkom employees as if such Personnel were
Telkom employees. No Personnel provided to Telkom by any Personnel
Provider hereunder shall be deemed an employee or agent of the SEP. In
addition, all such Personnel shall be subject to the normal appraisal
procedures for employees of Telkom as if they were employees of Telkom
and the results of such appraisals shall be taken into account by the SEP and
any other Personnel Provider.
Notwithstanding any provision contained in this Clause 3 to the contrary,
upon mutual agreement by the SEP and the CEO (on behalf of Telkom), the
SEP may fill an SEP Position with a Telkom employee, or a South African
national currently residing in South Africa as a Telkom employee, provided
3 8. 1 such employee shall be employed by Telkom and be subject to
Telkom's conditions of employment;
3 8. 2 the SEP shall retain the right to terminate or otherwise remove or
replace such Telkom employee or South African national in its sole
discretion and to fill a vacancy arising upon the termination of the
employment of such Telkom employee; and
Telkom shall be liable directly to such Personnel for the payment of all
remuneration (including all perquisites) payable to them, and none of
which shall be credited against the aggregate annual payment set forth
An appointment under Clause 3. 8, including but not limited to Clause 3. 8. 2
above, shall not be interpreted as a modification of SEP Positions or a
relinquishment of an SEP Position from the Management Structure for
purposes of Clause 13. 2 below, however, all the SEP rights with respect to
such position shall be suspended until the position becomes vacant.
The Parties agree that the SEP Appointees will use reasonable efforts to
inform the relevant Telkom managers of and co-ordinate with Telkom leave,
holidays, and other absences. The SEP shall give due consideration to
performance at Telkom when making internal personnel decisions related to
4. PROVISION OF PERSONNEL BY SBCI-MSI AND TMS
SBCI-MSI shall, upon the request of and in consultation with the SEP, provide
Personnel to Telkom for the purposes of Clause 3 above. Such Personnel
may be either US Personnel or Other Personnel and shall be removed and
replaced by SBCI-MSI upon the request of the SEP from time to time;
provided that SBCI-MSI shall be entitled to provide Personnel hereunder who
are not employed by SBCI-MSI or any of its Affiliates at the time that SBCI-
MSI proposes to provide such Personnel to Telkom, only with the prior written
consent of TMA, such consent not to be unreasonably withheld.
shall, upon the request of and in consultation with the SEP, provide
Personnel to Telkom for purposes of Clause 3 above. Such Personnel may
be either Malaysian Personnel or Other Personnel and shall be removed and
replaced by TMS upon the request of the SEP from time to time; provided
that TMS shall be entitled to provide Personnel hereunder which are not
employed by TMS or any of its Affiliates at the time that TMS proposes to
provide such Personnel to Telkom, only with the prior written consent of
SBCISA, such consent not to be unreasonably withheld.
The Parties hereby acknowledge that neither SBCI-MSI nor TMS shall
provide Personnel to Telkom except at the request of, and in consultation
with, the SEP in accordance with Clauses 4. 1 and 4. 2 above, as applicable.
In the event that, during the term of this Agreement, the members of the SEP or any
of their respective Affiliates sell, licence or otherwise generally make available
technology or intellectual property (e. g. patented software, technical information or
know how) to third parties, the SEP undertakes to use its reasonable endeavours to
cause such members or Affiliates, as applicable, to offer such technology or
intellectual property, as the case may be, to Telkom on terms and conditions which
are no less favourable than those upon which such members or Affiliates actually
provide such technology or intellectual property to any such third party.
The Parties acknowledge that each one of the ST Positions has been since 1 May
2002, and still is, filled by an incumbent who has been duly appointed in accordance
with the requirements of the Original Shareholders' Agreement and where applicable
7.1 Appointments to USM Class B Positions
The SEP shall be entitled to provide Personnel to Telkom to serve as SEP
Appointees for the USM Positions which are SEP Class B Positions and
Telkom shall be obliged to accept such Personnel in those positions in
accordance with the following provisions:
for Telkom's financial year ending 31 March 2003, the SEP may provide
a maximum of 15 (fifteen) persons at any one time to be appointed by
Telkom as SEP Appointees for the USM Positions in question;
for Telkom's financial year ending 31 March 2004, the SEP may provide
a maximum of 12 (twelve) persons at any one time (which shall include
persons already appointed in terms of Clause 7.1.1 above) to be
appointed by Telkom as SEP Appointees for the USM Positions in
for the period from 1 April 2004 until the expiration or termination of this
Agreement in accordance with Clause 17 below, the SEP may provide
a maximum of 3 (three) persons (which shall include persons already
appointed in terms of Clauses 7.1.1 and 7.1.2 above) at any one time to
be appointed by Telkom as SEP Appointees for the USM Positions in
each person so accepted by Telkom as an SEP Appointee shall be
appointed for at least 18 (eighteen) months but not more than 36 (thirty-
six) months, to provide the Strategic Services on the same terms as
other Personnel provided by or for the SEP in terms of this Agreement;
for the avoidance of doubt, Telkom shall be obliged to reimburse the
SEP for each such SEP Appointee in accordance with Appendix 3 of
this Agreement, provided that the aggregate payments by Telkom to the
SEP in any year do not exceed the amounts set forth in Appendix 5. If
such aggregate amounts exceed the amounts set forth in Appendix 5,
the provisions of Clause 3. 5. 2 above shall apply.
7.2 Appointments to USM Class C Positions
Upon request from Telkom, the SEP shall provide Personnel to Telkom to
serve as SEP Appointees for the USM Positions which are SEP Class C
Positions, in accordance with the following provisions:
for Telkom's financial year ending 31 March 2003, Telkom may require
the SEP to provide up to 9 (nine) persons at any one time to be
appointed as SEP Appointees for the USM Positions in question;
for Telkom's financial year ending 31 March 2004, Telkom may request
the SEP to provide a maximum of 12 (twelve) persons (which shall
include persons already appointed in terms of Clause 7. 2. 1) to be
appointed as SEP Appointees for the USM Positions in question;
each person so appointed by Telkom as an SEP Appointee shall be
appointed for at least 18 (eighteen) months but not more than 36 (thirty-
six) months, to provide Strategic Services on the same terms as other
Personnel provided by or for the SEP in terms of this Agreement,
including Appendix 3, provided that the cost for such Personnel shall
not be credited against the aggregate annual payment set forth in
7. 3 Reporting Lines determined by the SEP
The Parties acknowledge that the reporting lines -
for the 12 (twelve) USM Positions which are SEP Class B Positions and
may be filled by SEP Appointees during Telkom's financial year ending
31 March 2004, have not yet been determined but shall be determined
initially by the SEP by 1 February 2003; and
for the 3 (three) USM Positions which are SEP Class B Positions and
may be filled by SEP Appointees from time to time during the period
from 1 April 2004 until the expiration or termination of this Agreement in
accordance with Clause 17 below, have not yet been determined but
shall be determined initially by the SEP by 1 February 2004.
7.4 Reporting Lines determined by Telkom
The Parties acknowledge that the reporting lines for the 12 (twelve) USM
Positions which are SEP Class C Positions and may be filled by SEP
Appointees during Telkom's financial year ending 31 March 2004, have not
yet been determined but shall be determined by Telkom by 1 February 2003.
Any vacancy in a Telkom Position shall be filled by a person nominated
by the CEO acting on behalf of Telkom, provided that:
the CEO will have consulted the HRRC before making his
the person so nominated will have been approved beforehand
For the purposes of Clause 8. 1. 1 above:
the Search Committee shall be an informal committee
comprising such persons as the CEO may appoint from time to
time, but shall always include at least the GE-HR and the COO
or their authorised delegates;
decisions of the Search Committee shall be determined by a
Any vacancy in an SEP Position shall be filled in accordance with a two
part consultative process as follows:
first, if a suitably qualified Historically Disadvantaged Individual
is available for the position in question, the vacancy shall be
filled in accordance with the provisions of Clause 8. 1 above, as
if it were a Telkom Position, provided that the position shall
nonetheless continue to be regarded for all purposes until the
termination of this Agreement as an SEP Position; and
second, if a suitably qualified Historically Disadvantaged
Individual is not available within 60 (sixty) days from the date
on which the vacancy occurs, the vacancy shall:
if it is for an ST Position, be filled in accordance with the
provisions of Clause 8. 2. 3 below; or
if it is for a USM Position, be filled in accordance with
the provisions of Clause 8. 2. 6 below.
For the purposes of Clause 8. 2. 1 above a "vacancy" shall be regarded
as having occurred when the incumbent of the SEP Position actually
vacates that position by ceasing to render the services he was obliged
For the purposes of Clause 8.2.1(b)(i) above, where the vacancy to be
filled is for an ST Position, it shall be filled in accordance with the
provisions of this Agreement, only after the following further consultative
process has been followed:
after the SEP has selected a candidate for the position in
question, in accordance with the provisions of this Agreement,
it shall nominate the candidate for approval by the CEO and the
GE-HR, by giving written notice ("the nomination notice") of itsnomination to the CEO on Telkom's behalf, together with the
candidate's employment credentials;
on receipt of the nomination notice, the CEO may call for such
further information about the candidate so nominated (the
"nominee") as he may reasonably require, and also for an
interview either in person or by telephone, by any one or more
of himself, the GE-HR and the chairman for the time being of
if the nominee is approved by the CEO and the GE-HR, the
nominee shall be appointed to fill the ST Position in question;
if the nominee is not acceptable to the CEO and the XX-XX
xxx is rejected by them, they shall within 10 (ten) days from the
date the CEO receives the nomination notice, notify the SEP in
writing to that effect, ("the rejection notice") and such noticeshall include the reasons for the rejection;
upon receipt of any rejection notice in terms of Clause 8.2.3(d)
above, the SEP may either refer the appointment of its
nominee to the HRRC for determination or propose another
nominee for the ST Position in question;
if the SEP refers the appointment of its nominee to the HRRC
for determination then a decision of the majority of the
members of the HRRC shall be final and binding on the Parties;
if the SEP proposes another nominee then the procedures set
out in this Clause 8. 2. 3 shall apply and be followed all over
If the appointments of 2 (two) different candidates nominated by the
SEP for a particular ST Position are referred to the HRRC for
determination in terms of Clause 8. 2. 3(f) and both are rejected by the
HRRC, then Telkom shall be obliged to appoint to the ST Position in
question a 3rd (third) candidate selected by the SEP in its sole
If the consultative process referred to in Clause 8. 2. 3 in respect of any
candidate nominated by the SEP for a particular ST Position is not
completed within 30 (thirty) days from the date on which the nomination
notice is given to the CEO in terms of Clause 8. 2. 3(a), then such
candidate shall be deemed to have been approved in terms of Clause
8. 2. 3(c) and Telkom shall be obliged to appoint such candidate to the
ST Position in question. The provisions of this Clause 8. 2. 5 shall not
however apply where the delay is caused by any act or omission of the
For the purposes of Clause 8. 2. 1 (b)(ii) above, where the SEP Position
to be filled is for a USM Position, it shall be filled in accordance with the
provisions of this Agreement, but only after following the same further
consultative process as that prescribed in Clauses 8. 2. 3, 8. 2. 4 and
8. 2. 5 above, the provisions of which shall accordingly apply mutatis
mutandis, except that the SEP's nominee shall be subject to the
approval of the CEO, GE-HR and the executive to whom the nominee, if
appointed, would have to report in terms of the Management Structure,
and each of whom shall be entitled to require an interview with the
nominee, either in person or by telephone.
Notwithstanding anything to the contrary contained elsewhere in this
the provisions of Clauses 8. 2. 1 and 8. 2 .2 shall not apply to a vacancy in
any of the following SEP Positions:
(a) the ST Position of "COO Telkom", "CSO" or "Comptroller",
at least 3 (three) of the USM Positions which are SEP Class B
Positions and may be filled by SEP Appointees until the end of
Telkom's financial year ending 31 March 2004;
the 3 (three) USM Positions which are SEP Class B Positions
and may be filled by SEP Appointees for the period from 1
April 2004 until the expiration or termination of this Agreement
in accordance with Clause 17 below;
8.3.2 the provisions of Clauses 8. 2. 3, 8. 2. 4 and 8. 2. 5 shall apply to the SEP
Positions referred to in Clause 8. 3. 1
Notwithstanding the provisions of Clause 3 4 above, any SEP Appointee
appointed after the Commencement Date, other than the SEP Appointees
referred to in Clause 8. 3. 1, may be removed by the CEO, acting on behalf of
Telkom, for any reasonable cause, but only during the period of 3 (three)
months after the first 2 (two) months and before the end of the first 5 (five)
months from the date of his or her appointment Thereafter the provisions of
this Clause 9. 1 shall no longer apply in respect of the SEP Appointee xx
The SEP shall in any event continue to be entitled under Clause 3. 3 above to
remove any SEP Appointees with or without cause from time to time in its
Any vacancy in an SEP Position which results from a removal of an SEP
Appointee in terms of Clause 9. 1 or Clause 9. 2 above shall be filled in
accordance with the applicable provisions of Clause 8 above.
Any incumbent of an SEP Position who is not an Historically Disadvantaged
Individual may by agreement between Telkom and the SEP be replaced at
any time during the term of this Agreement by a suitably qualified Historically
Disadvantaged Individual, after following the procedure referred to in Clause
8.1 above for filling a vacancy in a Telkom Position, as if the replacement
were a nominee for a Telkom Position.
In any event, if the CEO on behalf of Telkom is of the opinion that the
incumbent of any SEP Position can and should be replaced by an Historically
Disadvantaged Individual, he may seek such replacement without the
agreement of the SEP by referring the matter to the HRRC for determination.
Any determination by the HRRC of any such matter referred to it by the CEO
shall be final and binding on the Parties, provided that the determination is
made unanimously by all the members present at a meeting of the HRRC,
including in attendance at least 1 (one) member of that committee appointed
The Parties record, for the avoidance of any doubt, that if any incumbent of
an SEP Position has at the Commencement Date been replaced by an
Historically Disadvantaged Individual or is after the Commencement Date
replaced by an Historically Disadvantaged Individual pursuant to the
provisions of Clauses 10. 1 or 10. 2 above, the position which is or will then be
held by that Historically Disadvantaged Individual shall not be regarded as an
SEP Position and the provisions of Clause 3. 9 above shall apply to that
position, mutatis mutandis.
Notwithstanding anything to the contrary contained elsewhere in this
Agreement, the provisions of this Clause 10 shall not apply to an incumbent
of any of the SEP Positions referred to in Clause 8. 3. 1.
Subject to other applicable provisions of this Clause 11, Telkom shall pay a
fee to each person that directly provides Personnel to Telkom (i. e. the SEP or
a Personnel Provider and including, if applicable and without limitation, SBCI-
MSI or TMS) with respect to such Personnel as follows:
with respect to any Long-Term Personnel provided to Telkom to provide
Strategic Services, the amount per annum (payable monthly) set forth in
Appendix 3 attached hereto, pro rated for any partial year of this
Agreement in which such Personnel are provided to Telkom; and
with respect to any Short-Term Personnel provided to Telkom to
provide Strategic Services, an amount per month during each year of
the term of this Agreement set forth in Appendix 4 attached hereto, pro
rated for any partial month in which such Personnel are provided to
Each person that directly provides Personnel to Telkom (i. e. the SEP or a
Personnel Provider and including, if applicable and without limitation, SBCI-
MSI or TMS) shall submit to Telkom monthly invoices in Dollars for all fees
payable hereunder by Telkom including fees for services provided by the
Personnel to Telkom in the immediately preceding month. Such invoices
shall set forth the Personnel provided to Telkom by such Personnel Provider
who provided Strategic Services during the period elapsed under each
invoice. Telkom shall, within 30 (thirty) days from the date of such invoices,
pay such monthly invoices in full as herein provided. In the event that Telkom
fails to pay any amounts due under this Agreement within such 30 (thirty) day
period and in the manner herein provided, any such unpaid amounts shall
bear interest at the rate of 15% (fifteen percent) per annum, from the date of
expiration of such 30 (thirty) day period to the date Telkom pays such
amounts to the SEP or such Personnel Provider.
All amounts payable hereunder by Telkom to the SEP or any Personnel
Provider (including, if applicable, SBCI-MSI and TMS) shall be paid in Dollars
in New York, New York by wire transfer of immediately available funds to the
respective accounts specified from time to time by the SEP or the applicable
Personnel Provider. Such payments shall be made free from any set-off,
withholding or deduction which, if payable in connection with any payments
due or made hereunder shall be borne and paid by Telkom and such
payments will be increased by any value-added tax for which the SEP or any
Personnel Provider, as applicable, shall be liable in respect of such
payments. In the event that Telkom is required by any law or regulation to
make any deduction or withholding (on account of tax or otherwise) from any
payment to be made under this Agreement, then Telkom shall, together with
such payment, pay such additional amount as to ensure that the SEP and
each Personnel Provider receives (free and clear of any tax or other
deductions or withholdings) the full amount which it would have received if no
such deduction or withholding had been required.
12. ADDITIONAL OBLIGATIONS
Telkom agrees to discharge promptly all costs and obligations payable or to
be performed by it in respect of the Strategic Services and will provide the
Personnel with such assistance and access to its facilities, operations and
staff as Telkom would ordinarily provide employees employed by Telkom in
positions which are equal to (or substantially equal to) positions for which
such Personnel have been provided to Telkom in terms of seniority and
responsibility. Telkom further agrees to provide the SEP and each Personnel
Provider with such assistance as the SEP and each Personnel Provider may
reasonably request to enable the SEP and each such Personnel Provider to
obtain and maintain any Permit.
The Parties agree that, upon the request of either Telkom or the SEP, but not
more than once in any quarter, the CEO, COO, CSO and GE-HR shall meet
and, in good faith, review the performance of the Personnel and consider
whether and the extent to which the SEP should provide (or arrange for the
provision of) additional Personnel to Telkom.
The Management Structure (including reporting lines for the most senior
members of management, including the SEP Positions) is set forth in
Appendix 1. The SEP shall be entitled to provide Personnel for the SEP
Positions (being the SEP Class B Positions, the SEP Class B* Positions and
the SEP Class C positions) and Telkom shall be obliged to appoint such
Personnel pursuant to the terms of this Agreement.
The SEP and Telkom agree that, in accordance with the procedures set forth
in this Clause 13, modification to the number of SEP Positions may be
permitted to reflect changing market conditions, employee expertise levels,
SEP ownership levels, and such other factors that Telkom and the SEP agree
to be relevant. Further, the Parties agree:
The SEP may relinquish an SEP Position to which it is entitled under
the Management Structure at any time, provided that in such
circumstances, the SEP shall be consulted with regard to each
replacement for such position appointed by Telkom at any time during a
period of 1 (one) year from the date on which the SEP Position was so
relinquished and Telkom shall give due consideration to the SEP's
views with regard to each replacement. The SEP shall provide Telkom
with official notice in accordance with Clause 20 below to confirm the
SEP's relinquishment of its right to provide Personnel for such position
under the Management Xxxxxxxxx.
Telkom may relinquish a Telkom Position under the Management
Structure at any time, provided that in such circumstances Telkom shall
be consulted with regard to each replacement for such position
appointed by the SEP at any time during a period of 1 (one) year from
the date on which the Telkom Position was so relinquished and the
SEP shall give due consideration to Telkom's views with regard to each
replacement. Telkom shall provide the SEP with notice in accordance
with Clause 20 below to confirm Telkom's relinquishment of its right to
make appointments to such position under the Management Structure.
The extent of the authority of the members of Telkom's senior management
including the SEP Appointees is set forth in the Schedule of Authorisations
attached hereto as Appendix 2.
Each member of Telkom's management shall have the authority to appoint,
dismiss and replace personnel subordinate to such member other than
Personnel appointed by the SEP, provided that Personnel appointed by the
SEP shall not have the authority to appoint, dismiss and replace Telkom
personnel other than Personnel appointed by the SEP subordinate to such
Personnel appointed by the SEP without prior consultation with and the
14. SETTLEMENT OF DISPUTES
The Parties shall in good faith attempt to resolve any dispute, controversy or
claim between or among any of them arising out of or relating to this
Agreement or the breach, termination or invalidity thereof (hereafter, a
'dispute') amicably. Any dispute which they have been unable to resolve by
mutual agreement shall be submitted to binding arbitration as provided below,
at the written request of any Party in accordance with the provisions of
Clause 20 of this Xxxxxxxxx.
Any dispute which cannot be resolved amicably shall be exclusively and
finally resolved by arbitration conducted in accordance with the UNCITRAL
Arbitration Rules (the 'Rules') as at present in force (except as modified
below); provided that such arbitration may not be commenced unless the
Parties to the dispute otherwise agree, until the 31st (thirty-first) day after the
written request referred to in Clause 14. 1 has been received by the other
Party or Parties to such dispute. The Appointing Authority under the Rules
shall be the Secretary General for the time being of the International
Chamber of Commerce (the 'ICC') International Court of Arbitration.
There shall be 3 (three) arbitrators. The claimant(s), irrespective of number,
shall appoint jointly one arbitrator, the respondent(s) irrespective of their
number, shall appoint jointly the second arbitrator, and a third arbitrator, who
shall serve as presiding arbitrator, shall be appointed as provided in the
Rules. In the event that any respondent or joint respondents shall fail to
appoint an arbitrator, such arbitrator shall be appointed by the Appointing
A sole respondent may join a Party other than the claimant in the arbitration
within 15 (fifteen) days after receipt by the respondent of notification from the
claimant of the appointment of an arbitrator, provided that the right to relief by
the respondent against such joined Party depends on the determination of
substantially the same question of law or fact which, if separate actions were
instituted, would arise on each action. In the event of such joinder, the
arbitrator to be appointed by the respondent pursuant to Clause 14. 3 above
shall be appointed jointly by the respondent and the joined party, and if they
fail to so jointly appoint, such arbitrator shall be appointed by the Appointing
Authority. Once the arbitration panel is constituted, upon the request of the
claimant, the panel shall render a decision as to whether such joinder was
appropriate based on the terms of this Clause 14. 4, and if the arbitral panel
determines that such joinder was not appropriate then it shall sever the joined
claim from the pending arbitration.
The place of arbitration shall be Gauteng Province, South Africa and the
award shall be deemed rendered in South Africa. The arbitrators may
conduct proceedings or portions of proceedings at venues they deem
convenient. The language of the arbitration shall be English. The aforegoing
notwithstanding, the place of arbitration for disputes between or among the
SEP, SBCISA, TMS and/or any other Personnel Provider shall be London,
The arbitrators shall be able to read, write and converse fluently in English.
The presiding arbitrator shall not be a national of any country in which any
Party or ultimate parent of such Party is domiciled.
In addition to the powers expressly provided in the Rules, the arbitrators shall
investigate any matter, fact or thing which they consider necessary or
desirable in connection with the dispute submitted to the arbitral panel
and, for that purpose, shall have the widest powers of investigating all
the books, records, documents and other materials in the possession of
the Parties or under their control, and the right to make or have made
copies thereof and/or take extracts therefrom and the right to have such
documents or copies thereof produced and/or delivered at any place
reasonably requested by the arbitrators for the aforesaid purposes;
14. 7. 2 inspect goods and property of the Parties;
question the Parties under oath (including their officers, directors and
summon witnesses to appear at the hearing before the arbitral panel;
The arbitrators shall hold hearings and render their award as soon xx
In connection with any arbitral proceeding commenced under this Clause 14,
each Party shall have the power to:
request and inspect documents and other materials in the possession
of any Party or under their control, make or have made copies thereof
and/or take extracts therefrom and have such documents or copies
thereof produced and/or delivered at any place reasonably requested
by such Party for the aforesaid purposes;
present oral evidence at any hearing conducted before the arbitral
interview witnesses to appear at any hearing conducted before the
cross-examine witnesses summoned by the other Party at any hearing
conducted before the arbitral panel; and
14. 8. 5 submit other evidence to the arbitral panel as such panel may permit.
In rendering their decision, the arbitrators shall be bound by this Agreement
and shall interpret this Agreement under the laws of South Africa. In addition
to the aforegoing, the arbitrators are empowered to act ex acquo et xxxx in
the event that the laws or regulations of South Africa would cause an unfair
result. The arbitrators' decision shall be reasoned and shall be rendered in
writing, shall be final and binding upon the Parties and shall be carried into
effect and may be enforced and confirmed as a judgment or an order of any
competent court at the instance of either Party.
In any arbitration proceedings under this Clause 14, the arbitrators shall be
empowered to award monetary damages (but excluding any damages which
in the circumstances would be special damages) to the extent permitted by
South African law. If one or more Parties prevails on all or substantially all of
the claims of any arbitration proceedings under this Clause 14, the other
Party or Parties not prevailing shall pay all fees and expenses of the
arbitrators, the ICC and of such prevailing Party or Parties, including such
Party's or Parties' reasonable attorneys' fees. Any monetary award made
hereunder shall be made in Dollars and payable free of any tax or other
deduction, and shall include:
interest from the date of any breach or other violation of this Agreement
to the date on which such award is paid at a fair rate determined by the
any additional amounts necessary to compensate the Party or Parties
to whom such award is made pursuant to this Clause 14 for any taxes
imposed on such Party or Parties or its or their owners with respect to
such amount (except for income taxes payable with respect to any such
award that is paid to satisfy a claim for amounts which, if paid as and
when due as claimed, would have constituted taxable income to such
In any arbitration proceeding under this Clause 14, the arbitrators shall be
authorised to order specific performance of any obligations arising under this
This Clause 14 shall not preclude any Party from obtaining relief by way of
motion proceedings on an urgent basis or from instituting any interdict,
injunction or any similar proceedings in any court of competent jurisdiction in
order to preserve the subject matter to the arbitration or the availability of
effective relief pending the decisions of the arbitrators. Notwithstanding
anything contained in the Rules to the contrary, the Parties shall not be
restricted from making any disclosures required by law or enforceable legal
process, or by the rules of any securities exchange or regulatory authority
having jurisdiction over any such Party.
In any arbitration proceedings under this Clause 14, the Parties shall remain
bound by the provisions of Clause 18 of this Xxxxxxxxx.
15. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
On the date hereof, each of the SEP and Telkom represents and warrants to
it is a company duly incorporated or otherwise formed with limited
liability and validly existing in good standing under the jurisdiction in
which it is formed and has full power, authority and legal right to own its
property and assets and to carry on its business subject to the terms of
any licence required to be held by it to carry on such business;
it has full power, authority and legal right to enter into this Agreement
and to engage in the transactions contemplated hereby and has taken
or obtained all necessary corporate and other action to authorise the
execution and performance of this Agreement;
this Agreement constitutes the legal, valid and binding obligation of that
Party and is enforceable in accordance with its terms;
neither the execution of this Agreement nor the performance by the
Party of any of its obligations or the exercise of any of its rights
hereunder will conflict with or result in a breach of any treaty, law,
regulation, judgment, court order, authorisation or agreement or
obligation applicable to that Party or cause any limitation placed on that
Party or on the powers of that Party's directors to be exceeded;
all authorisations legally required from any governmental or other
authority or from the shareholders or creditors of that Party for or in
accordance with the execution, validity and performance of this
Agreement, other than Permits related to the provision of Personnel,
have been obtained and are in full force and effect;
that Party is not in default under any treaty, law, regulation, judgment,
court order, authorisation or agreement or obligation applicable to it or
its assets or revenues, the consequences of which default could
materially or adversely affect its ability to perform its obligations under
no litigation, arbitration or administrative proceeding is currently taking
place or pending or, to the knowledge of that Party, threatened against
that Party or its assets which proceeding could materially and adversely
affect the ability to perform its obligations under this Agreement;
that Party is generally subject to civil and commercial law and to legal
proceedings and neither that Party nor any of that Party's assets or
revenues is entitled to any immunity or privilege (sovereign or
otherwise) from any set-off, judgment, execution, attachment or other
15. 2 The SEP represents, warrants and undertakes that:
it has or will have the capacity, and is or will be in a position to provide,
the Strategic Services to Telkom (or it is or will be in a position to cause
one or more suitably qualified Personnel Providers with adequate
capacity to provide the Strategic Services to Telkom);
it has or will have (or such Personnel Providers have or will have) the
technical resources to provide the Strategic Services to Telkom;
it has or will have (or such Personnel Providers have or will have)
available to them persons with the requisite skills, qualifications and
experience to meet the SEP's obligations under this Agreement; and
during the term of this Agreement the facts warranted above will
the carrying out of its obligations pursuant to this Agreement will not
conflict with or constitute a breach of, or default under, any contract or
agreement or arrangement to which it is a party or by which it may be
bound, nor will any such action result in any violation of any treaty, law,
judgment or court order save where absence of such title or conflict
with, breach or default under any contract, agreement or arrangement
or violation of any treaty, law, judgment or court order would not in any
such case materially or adversely affect the ability of the SEP to
perform its obligations under this Agreement;
the Strategic Services will be provided with reasonable care and skill
and in a manner that is consistent with good industry practice.
Each Party undertakes that such Party shall use its reasonable endeavours to
comply with and cause its Affiliates to comply with all applicable laws of South
Africa, and Telkom and its Affiliates shall not at any time conduct any
business or take any act which would cause the SEP, its owners, any
Personnel Providers or any of their Affiliates to be in violation of such laws.
Also, the SEP, SBCI-MSI and TMS shall (and the SEP shall cause each other
Personnel Provider to) comply with all laws, rules and regulations applicable
to them in connection with the provision of Personnel. In addition to the
aforegoing, Telkom acknowledges that SBCISA, SBCI, SBCI-MSI and their
Affiliates are subject to the United States Communications Act of 1934, as
amended by the United States Telecommunications Act of 1996, and as
amended from time to time (collectively referred to as "the US Act"), and
Telkom shall not and Telkom shall cause its Subsidiaries not to take any
action which would cause SBCISA, SBCI, SBCI-MSI or any of their Affiliates
to be deemed to be engaged in the provision of:
long-distance telecommunications services (in those States where
SBCISA, SBCI, SBCI-MSI or any of their Affiliates have not received
authority in terms of Section 271 of the US Act); or
any other services which, in the opinion of SBCISA are prohibited by
the US Act in the "In-Region" States as defined in Section 271(i)(1) of
the US Act. The Parties acknowledge that on the Signature Date the
"In-Region" States of the United States of America applicable to
SBCISA, SBCI, SBCI-MSI and their Affiliates currently include the
States of California, Illinois, Indiana, Michigan, Nevada, Ohio and
None of the SEP, the Personnel or any Personnel Provider, any of their
Affiliates, officers, directors, and each of their respective assignees,
subcontractors, directors, officers, shareholders, employees or agents shall
be liable to Telkom or any of its Affiliates for any claim, loss, damage or
expense whatsoever sustained or incurred by Telkom or its Affiliates as a
result of the actions or the failure to act of the SEP, the Personnel or such
Personnel Provider, provided that the SEP shall fully indemnify and hold
Telkom or any of its Affiliates, officers, directors and each of their respective
assignees, subcontractors, directors, officers, shareholders, employees or
agents harmless from and against any claims, damages or liabilities actual or
alleged, costs and expenses, including attorneys' fees and expenses
(including investigative costs) arising directly from the wilful misconduct of the
Personnel in connection with the provision of the Strategic Services to
Telkom, in accordance with the terms of this Agreement Notwithstanding
anything contained herein to the contrary, none of the SEP, the Personnel or
any Personnel Provider or any Affiliate thereof shall have any liability to
Telkom or its Affiliates whatsoever for any indirect losses, consequential or
incidental damages, including, without limitation, loss of profits or goodwill,
sustained or claimed by any person, firm, company or organisation
whatsoever and howsoever arising, including, without limitation, as a result of
the performance or non-performance hereunder by the SEP, the Personnel or
Telkom shall fully indemnify and hold the SEP, the Personnel, any Personnel
Provider and their Affiliates and each of their respective assignees,
subcontractors, directors, officers, shareholders, employees and agents,
harmless from and against any claims, damages or liabilities, actual or
alleged, costs and expenses, including attorneys' fees and expenses
(including investigative costs) arising directly from Telkom's acts related to
this Agreement, except to the extent caused by the wilful misconduct of the
SEP, the Personnel or the Personnel Provider, as the case may be.
Telkom shall fully indemnify and hold the Personnel harmless from and
against any claims, damages or liabilities, actual or alleged, costs and
expenses including attorneys' fees and expenses, (including investigative
costs) arising from acts of the Personnel to the same extent that Telkom
would ordinarily indemnify its officers, directors, representatives and/or
employees, as the case may be.
Telkom shall maintain officer and director insurance with respect to the
Personnel as Telkom ordinarily maintains with respect to the officers and
directors of Telkom generally.
This Agreement shall commence on the Commencement Date and shall
continue in force until terminated pursuant to this Clause 17.
This Agreement shall automatically terminate upon the occurrence of any of
17. 2. 1 mutual Agreement by the Parties; or
17. 2. 2 the liquidation or dissolution of either of Telkom or of the SEP.
This Agreement shall automatically terminate upon the earlier of (i) 10 (ten)
days after SEP ceases to be a Significant Shareholder; provided that, at the
written request of Telkom, this Agreement shall continue in effect for a period
up to 120 (one hundred and twenty) days or such shorter period as agreed
with the SEP, notwithstanding that the SEP ceases to be a Significant
Shareholder and (ii) the later of (x) the third anniversary of the Initial Public
Offering by Telkom and (y) 8 May 0000.
This Agreement shall terminate, at the option of the SEP, upon the
occurrence of any of the following:
the failure of Telkom to pay, in the manner herein provided, any
payment due hereunder within 30 (thirty) days after receipt of notice of
the failure of Telkom to comply with its obligations under Clause 12. 1
at any time Exchange Control Approvals terminate or lapse or are
revoked and are not renewed or reinstituted;
the Restated Shareholders' Agreement terminates for any reason or the
Minister (as therein defined) commits a breach of any of the material
the consent rights, Board and committee representation rights or any
other rights granted to the SEP under the Restated Shareholders'
Agreement or Telkom's Memorandum and Articles of Association are
deemed or become unenforceable for any reason; or
Telkom ceases to be a significant provider of telecommunications
services for any reason whatsoever.
In addition, this Agreement may be terminated by SBCI-MSI or TMS (with
respect to themselves only) by written notice to the other Parties as follows:
SBCI-MSI may terminate this Agreement with respect to itself, and TMS
may terminate this Agreement with respect to itself, in the event that the
terminating Party (SBCI-MSI or TMS, as applicable) declares
bankruptcy or seeks legal protection from its creditors;
SBCI-MSI may terminate this Agreement with respect to itself if none of
SBCISA or any of its Affiliates owns an equity interest in the SEP; and
TMS may terminate this Agreement with respect to itself if none of TMA
or any of its Affiliates owns any equity interest in the SEP.
Notwithstanding any provision contained herein to the contrary, a termination
by either SBCI-MSI or TMS pursuant to this Clause 17. 5 (as applicable, the
'Terminating Party') shall be effective only with respect to the Terminating
Party and shall have no effect on the rights, obligations, or duties of any other
Party hereto (all of which rights, obligations and duties shall continue in full
If this Agreement terminates pursuant to Clauses 17. 1, 17. 2, 17. 3 or 17. 4
hereof (or with respect to a Terminating Party pursuant to Clause 17. 5
hereof), all further obligations of the Parties hereto (or of such Terminating
Party, as applicable) shall terminate and no damages or other compensation
shall be payable by any Party (or by such Terminating Party, as applicable)
except that nothing in this Clause 17. 6 shall relieve any Party (or by such
Terminating Party, as applicable) hereto of any liability for any breach of this
Agreement that occurred prior to termination or release of any Party (or such
Terminating Party, as applicable) from the continued application of any
provisions of this Agreement expressed to be applicable after termination.
The Parties recognise that any and all information, know-how and
management material and expertise (collectively, 'Confidential Information')
disclosed by any Party or any Personnel Provider or any of their respective
employees, agents or other representatives under this Agreement or the
Strategic Services (whether directly or indirectly) is the exclusive property of
such Party or Personnel Provider, as applicable. Subject to Clause 5, each of
the Parties (the 'recipient') agrees in relation to the Confidential Information of
to use the Confidential Information of any owner solely for the purposes
contemplated by this Agreement and as necessary in connection with
the business and affairs of Telkom;
to keep such information confidential and to disclose it only to their or
their Affiliates' officers, directors, employees, representatives,
consultants and professional advisers or such other persons who have
a need to know such information in connection with the business or
affairs of Telkom or the recipient or their respective Affiliates, who are
aware of the recipient's obligations of confidentiality hereunder with
respect to such information and have agreed to comply with such
obligations (it being understood that any recipient which discloses any
Confidential Information to any other person shall be responsible for
any further use or disclosure of such information in breach of the
restrictions contained herein);
at any time requested by an owner in writing, and upon termination of
this Agreement, promptly deliver (or cause to be delivered) to the owner
or, if requested by the owner, destroy (or cause to be destroyed) in
either case without retaining any copies thereof, all of the owner's
Confidential Information in the possession or control of the recipient or
its Affiliates or their respective officers, directors, employees,
representatives, consultants and professional advisers. This
Clause 18. 1. 3 is applicable to all documentation and other materials
(including magnetic and optical storage media) and all copies thereof
containing or embodying Confidential Information, including
documentation and materials such as specifications, manuals, training
material, written instructions, schedules and plans.
The aforegoing notwithstanding, no recipient shall be obligated to treat
information as Confidential Information of an owner under this Agreement if:
such information enters the public domain other than in breach of this
Clause 18 or any other obligation of confidentiality owed to the owner
such information was lawfully received by the recipient from a third
party who, to the knowledge of such recipient at the time of disclosure,
was not subject to any duty of confidentiality, directly or indirectly, to the
such information was expressly in the files of, or known to, the recipient
(or its officers, directors, employees, representatives, consultants and
professional advisers) provided that knowledge thereof was not
obtained, to the knowledge of such recipient, as a result of a disclosure
by a third party in violation of any duty of confidentiality, directly or
indirectly, to the owner thereof; or
such information is independently developed by the recipient (or its
officers, directors, employees, representatives, consultants or
professional advisers) or on their behalf without the use of Confidential
Information of the owner thereof.
No Party hereto shall be restricted in disclosing any Confidential Information
of any owner if and then only to the extent that such disclosure is required by
law or enforceable legal process, or by the rules of any securities exchange
or regulatory authority having jurisdiction over such party, provided the party
required to make such disclosure:
provides the owner of such Confidential Information notice of such
requirement as soon as practicable after the party obligated to make
such disclosure learns of such requirement, and thereafter consults with
the owner thereof before making any disclosure of such information;
takes all reasonable steps (including steps reasonably requested by the
owner thereof and any Party which is an Affiliate of such owner) to
oppose or prevent the disclosure, to limit, to the maximum extent
reasonably possible, the scope of such disclosure and to obtain
confidential treatment by the recipient of such xxxxxxxxxx.
The provisions of this Clause 18 shall survive termination of this Agreement
for a period of 2 (two) years from the date of such termination.
This Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the Republic of South Africa.
The Parties choose their addresses set out below as their domicilium citandi et
executandi ("domicilium") for all purposes arising from or pursuant to this Agreement.All notices, requests, demands and other communications required or permitted to be
given pursuant to or in connection with the requirements of this Agreement shall be in
writing and signed by the Party or by a duly authorised officer of the Party giving such
notice and shall be addressed as follows to the other Party at the addresses set out
below or such other address as may from time to time be notified to the other Party in
writing for such purposes and shall be sent by overnight or similar express courier,
hand delivery or electronic or other facsimile transmission.
Xxx Xxxxxxxx of South Africa
Attention: Company Secretary
Facsimile: x00 00 000-0000
Thintana Communications LLC
New Xxxxxx, Xxxxxxxx 00000
Telephone: + 1 210 351-2578
with copies by facsimile, which shall not constitute notice and which if not sent
will not constitute a failure to send notice, to
Facsimile: + 1 210 351-3257
Telephone: + 1 210 351 3476
Telekom Malaysia-Africa Sdn. Bhd.
Facsimile: + 60 3 2283 2415
Telephone: + 60 2020 2103
To SBCI-MSI: For service of legal process purposes:
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: + 1 210 351-3257
Telephone: + 1 210 351-3476
Attention: Xx Xxxxx Watts
SBC International South Africa XXX
Xxx Xxxxxx, Xxxxxxxx 0000
Facsimile: + 1 210 370-1195
Telephone: + 1 210 351-2578
Attention: Xx Xxxx X. Moore
with a copy by facsimile, which does not constitute notice and which if not sent
will not constitute a failure to send notice, to:
SBC International South Africa LLC
Facsimile: + 1 210 351-3257
Telephone: + 1 210 351-3476
Telekom Management Services Sdn. Bhd.
with a copy by facsimile, which does not constitute notice and which if not sent
will not constitute a failure to send notice, to:
Telekom Malaysia-Africa Sdn. Bhd.
Facsimile: + 60 3 2283 6014
Telephone: + 60 2020 2103
Any of the Parties shall be entitled from time to time by written notice to all of
the other Parties to vary its domicilium to any other address within the
Republic of South Africa which is not a post office box or poste restante. Any
notice given by any Party to any other Party which:
is delivered by hand during normal business hours of the addressee at
the addressees' domicilium for the time being shall be presumed to be
received by the addressee at the time of delivery; or
is transmitted by electronic or other facsimile transmission (with receipt
confirmed) to the addressee at the addressee's domicilium for the time
being shall be presumed to have been received by the addressee on
the first Business Day following the successful transmission thereof.
Subject to the other provisions of this Clause 20, no notice given under this
Agreement shall be effective unless and until it is actually received by xxx
This Agreement, including its Appendices, contains the entire agreement and
understanding of the Parties in relation to its subject matter and supersedes all prior
oral or written negotiations, agreements, representations, understandings or
arrangements (if any) between or among the Parties with respect to its subject
Subject to Clause 23 below, this Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the Parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by any
of the Parties except as follows:
22. 1. 1 Telkom may do so only with the prior written consent of the SEP;
22. 1. 2 the SEP may do so only with the prior written consent of Telkom; and
SBCI-MSI and TMS, respectively, may do so only with the prior written
The SEP and each Personnel Provider may subcontract any part of the Strategic
Services to any person which is and remains an owner of the SEP or an Affiliate of
such owner and, with the consent of Telkom, to a third party supplier. Any such
subcontracting shall not relieve the SEP from its responsibility to provide (or arrange
for the provision of) the Strategic Services for which it shall remain primarily xxxxxx.
WAIVER OF SOVEREIGN IMMUNITY
The Parties recognise and acknowledge that this Agreement and the transactions
contemplated by this Agreement constitute a commercial transaction. To the extent
that any Party (including the assignee of a Party's rights or obligations under this
Agreement) may be entitled, in any jurisdiction, to claim sovereign immunity or any
other immunity, as the case may be, from the jurisdiction of any court or arbitral
tribunal, or from any legal process, including but not limited to any order, attachment,
judgment or award, such Party hereby irrevocably agrees not to claim or assert, and
hereby irrevocably waives such sovereign or other immunity. The Parties intend the
aforegoing waiver of sovereign immunity to be no less broad than any waiver
permitted by the State Immunity Act of 1978 of Great Britain.
None of the SEP, SBCI-MSI, TMS or any other Personnel Provider shall have any
liability for any failure or delay in complying with any provision of this Agreement if,
and to the extent and for so long as, that compliance is prevented or substantially
hindered by any act of God, government, flood, tempest, severe weather conditions,
war (whether declared or not), civil disturbances, revolution, riot, insurrection, other
natural disasters, act of terrorism, sabotage, strike, failure to acquire any Permit,
labour dispute, other public emergencies or any other cause whatsoever which is
substantially beyond the control of the SEP, SBCI-MSI, TMS or any other Personnel
This Agreement may be executed in one or more counterparts and in separate
counterparts, each of which shall be deemed an original but all of which together shall
constitute one and the same legal xxxxxxxx.
Whenever possible, each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision of this
Agreement shall be unenforceable and invalid under applicable law, such provision
shall be ineffective only to the extent of such unenforceability or invalidity and the
remaining provisions of this Agreement shall continue to be binding and in full force
None of the terms of this Agreement shall be deemed to have been waived by any
Party unless such waiver is in writing and signed by that Party. The waiver by any
Party of a breach of any provision of this Agreement shall not operate or be construed
as a waiver of any provision of this Agreement or of any further breach of the
provisions so waived. No extension of time for the performance of any obligation or
act hereunder shall be deemed to be an extension of time for the performance of any
AMENDMENTS AND MODIFICATIONS
This Agreement may not be modified, amended, cancelled or changed in any respect
except in writing by a person who is authorised to do so by the board or similar
governing authority of the Parties against whom such modification, amendment,
cancellation or change is sought.
Nothing in this Agreement shall be deemed to create any relationship of employer
and employee, joint ventures, partners, fiduciaries or agents between or among any
of the Parties or entitle any Party to commit or bind any other Party in any xxxxxx.
Each Party is and, in all capacities hereunder, shall remain an independent
THIRD PARTY BENEFICIARIES
Each Personnel Provider not a Party to this Agreement (and their respective
Affiliates, assignees, subcontractors, directors, officers, shareholders, employees or
agents) is an express third party beneficiary of the terms and conditions of this
Agreement which are expressly applicable to Personnel Providers. In addition, TMA
and SBCISA are express third party beneficiaries of Clauses 4. 1 and 4. 2 respectively.
For: THINTANA COMMUNICATIONS
