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EXHIBIT 10.43
MASTER AGREEMENT
DATED 24th JUNE, 1998
BETWEEN
1) ▇▇▇▇▇ HOLDING ASSOCIATION
2) ▇▇▇▇▇ A/S
3) HERMES EUROPE RAILTEL HOLDINGS B.V.
4) HERMES EUROPE RAILTEL (IRELAND) LIMITED
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TABLE OF CONTENTS
PAGE
1 INTERPRETATION 4
2 IMPLEMENTATION 5
3 ISSUANCE OF SHARES 5
4 TRANSMISSION CAPACITY 6
5 RESTRUCTURING OF ▇▇▇▇▇ 6
6 SHARE OFFER 6
7 AUTHORITY 7
8 CONFIDENTIALITY 7
9 PUBLICITY 8
10 ENTIRE ▇▇▇▇▇▇▇▇ ▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇
▇▇ ▇▇ WAIVER 9
13 NOTICES 9
14 TERMINATION 10
15 ASSIGNMENT 10
16 FURTHER ASSURANCES 10
17 DISPUTE RESOLUTION AND GOVERNING LAW 11
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APPENDICES
A. EBONE Shareholders Agreement
▇. ▇▇▇▇▇ INC. Articles of Association
C. HER-P Guarantee (re: SHA)
D. Transmission Capacity Agreement
E. HER-I's Standard Terms
F. HER-P Guarantee (re: TCA)
G. Draft ▇▇▇▇▇ Newco B.V. Articles of Association
▇. ▇▇▇▇▇ B.V. Shareholders Agreement
I. Extract of Minutes of Meeting No. 10A of the Board of ▇▇▇▇▇ and EHA
dated 23 June 1998
J. Extract of Minutes of the Extraordinary General Assembly of EHA dated
23 June 1998
K. Extract of Minutes of Meeting No. 10B of the Board of ▇▇▇▇▇ and EHA dated
23 June 1998
L. Extract of Minutes of the General Assembly of ▇▇▇▇▇ dated 23 June 1998
M. Extract of Minutes of Extraordinary General Assembly of ▇▇▇▇▇ dated
24 June 1998
N. Documents provided by ▇▇▇▇▇
▇. Share Subscription Agreement
P. Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (re: HER-I)
Q. Documents provided by HER-P
R. Documents provided by HER-H
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THIS AGREEMENT IS MADE THIS 24TH DAY OF JUNE, 1998
BY AND BETWEEN:
1. ▇▇▇▇▇ HOLDING ASSOCIATION, an association registered in Copenhagen as
number LEV 244815 and having its place of business at ▇▇▇▇▇▇▇▇▇▇▇▇ ▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, hereinafter "EHA";
2. ▇▇▇▇▇ A/S, a private limited liability company, registered in
Copenhagen as number A/S 231925 and having its place of business at
▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, hereinafter "▇▇▇▇▇" or "the
Company";
3. HERMES EUROPE RAILTEL HOLDINGS B.V., a private limited liability
company registered in The Netherlands under number 33299402
(Amsterdam) and having its place of business at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, hereinafter "HER-H"; and
4. HERMES EUROPE RAILTEL (IRELAND) LIMITED, a company incorporated with
limited liability under the laws of the Republic of Ireland as company
number 276431 and whose registered office is 2 Custom ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, hereinafter "HER-I";
Hereinafter collectively referred to as "the Parties" and individually as a
"Party".
WHEREAS:
A. EBONE was founded by EHA in 1996 to develop and operate Internet
access for the members of EHA and for other customers according to
market developments;
B. HER-I is a wholly-owned subsidiary of Hermes Europe Railtel B.V.
("HER-P") which leases telecommunication transmission capacity to
telecommunication operators and other service providers on a carriers'
carrier basis;
C. HER-H is a wholly-owned subsidiary of HER-P which operates as a
holding company;
D. In an agreement dated 18 September 1997, HER-P and ▇▇▇▇▇ entered into
a Transmission Capacity Agreement pursuant to which HER-P agreed to
lease transmission capacity to ▇▇▇▇▇;
E. HER-P assigned its rights and obligations under the agreement dated 18
September 1997 to HER-I on March 27, 1998, with the consent of ▇▇▇▇▇;
▇. ▇▇▇▇▇ now wishes to obtain the supply of additional telecommunications
transmission capacity from HER-I;
G. The Parties have agreed that the funds required to finance the
purchase of such additional capacity shall be obtained through the
sale by ▇▇▇▇▇ to HER-H of shares in ▇▇▇▇▇;
H. The Parties wish to make provision for the subsequent restructuring of
▇▇▇▇▇ and to provide an opportunity for members of EHA to subscribe
for shares in ▇▇▇▇▇ or the restructured company;
I. The Parties now wish to define their basic rights and obligations
under the arrangements described above and to make provision for their
implementation.
NOW IT IS HEREBY AGREED AS FOLLOWS: Interpretation
1 INTERPRETATION
1.1 The following definitions shall apply in this Agreement and in the
Appendices hereto:
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Affiliated Company: in relation to any Shareholder, a company
which (a) is controlled in fact by the
Shareholder, and (b) fifty-one (51)% of the
shares of which are owned by the Shareholder;
Agreement: this Agreement and all annexes, appendices,
attachments, and schedules hereto;
Appendix: an Appendix to this Agreement;
Members: the entities as listed in Annex 2 to the
Shareholders' Agreement appended hereto as
Appendix A;
1.2 Any inconsistencies between the documents forming part of this
Agreement shall be resolved by giving them the following order of
precedence, unless expressly stated to the contrary:
(a) The Appendices;
(b) The main body of this Agreement but excluding the Appendices.
1.3 References in this Agreement to any Party shall include that Parties'
employees, agents, successors (whether by operation of law or
otherwise) and permitted assigns.
1.4 Headings are included in this Agreement for ease of reference only and
shall not affect the interpretation or construction of this Agreement.
1.5 All documentation exchanged between the parties pursuant to this
Agreement shall be in English.
2 IMPLEMENTATION
2.1 The Parties will enter into a series of transactions as described in
Articles 3 to 6. Each of these transactions will take place in the
sequence in which they are described. It is a condition of each
transaction that all of the other transactions shall be entered into
on the same day.
3 ISSUANCE OF SHARES
3.1 For purposes of this Agreement, the Parties have agreed on a valuation
of ▇▇▇▇▇ of ECU 30 million.
3.2 HER-H will subscribe for 51,000 shares in ▇▇▇▇▇ with a nominal value of
DKK 1,000 each with the intent that HER-I will become owner of 75% of
the shares in ▇▇▇▇▇. EHA and ▇▇▇▇▇ will cause the nominal share capital
of ▇▇▇▇▇ to be increased from DKK 17 million to DKK 68 million for
this purpose. HER-H will make a cash payment of ECU 90 million to
▇▇▇▇▇ for the shares.
3.3 In order to give effect to the transaction contemplated by Article
3.2, ▇▇▇▇▇ and HER-H will enter into a Share Subscription Agreement in
the form appended hereto as Appendix O.
3.4 Thereupon, the Parties will
(a) enter into a Shareholders' Agreement in the form appended
hereto as Appendix A; and
(b) cause the Articles of Association of ▇▇▇▇▇ to be amended in
the manner provided in Appendix B.
3.5 The shares issued to HER-H will be free from all claims, liens,
charges and encumbrances and together with all rights attached or
accruing thereto.
3.6 HER-H will procure from HER-P a guarantee of its due performance of
its obligations under the Shareholders' Agreement. The Guarantee
shall be in the form attached as Appendix C.
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4 TRANSMISSION CAPACITY
4.1 ▇▇▇▇▇ will enter into a Transmission Capacity Agreement with HER-I in
the form appended hereto as Appendix D (the "TCA") under which HER-I
will agree to supply transmission capacity to ▇▇▇▇▇ of a value
equivalent to ECU 90 million. The ECU 90 million will be paid in cash
at the date of signing of the TCA. HER-I's standard terms, including
the terms summarized in Appendix E will apply. Capacity on the HER
Network, including US connectivity will be available per the HER Ready
For Service Date in the TCA. Prices will be as per Schedule 3 of the
TCA. The term of the TCA will be 10 years. ▇▇▇▇▇ will be free to
relocate capacity for up to 10 years, both between routes as well as
in time (on a monthly basis), except where the Capacity provided is
Europe-US.
4.2 ▇▇▇▇▇ and HER-I hereby terminate the Telecommunications Capacity
Agreement between them dated 18 September 1997. No compensation shall
be payable by either party to the other in respect of the termination.
Services currently being provided by HER-I under the agreement of 18
September 1997 will be continued by HER-I, without interruption, under
the TCA.
4.3 HER-I will procure from HER-P a guarantee of HER-I's due performance
of its obligations under the TCA. The Guarantee shall be in the form
attached as Appendix E.
5 RESTRUCTURING OF ▇▇▇▇▇
5.1 The Parties will co-operate in the implementation of a restructuring
plan for ▇▇▇▇▇ pursuant to which
(a) A new Dutch holding company will be formed ("▇▇▇▇▇ Newco
B.V.");
(b) EHA and HER-H will swap their shares in ▇▇▇▇▇ for shares in
▇▇▇▇▇ Newco B.V., which will then own 100% of the shares of
▇▇▇▇▇.
5.2 The Articles of Association of ▇▇▇▇▇ Newco B.V. will be substantially
in the form attached hereto as Appendix G. The parties will meet to
discuss differences between the Articles of ▇▇▇▇▇ (Appendix B) and the
Articles of ▇▇▇▇▇ Newco B.V. (Appendix G).
5.3 The Parties will enter into (and cause ▇▇▇▇▇ Newco B.V. to enter into)
a Shareholders' Agreement which will be substantially in the form
attached hereto as Appendix H.
5.4 The transactions contemplated by this Article will be undertaken as
soon as possible, but only after the parties have applied for and
obtained a tax ruling from the Danish and Dutch authorities confirming
that the swap as described in Clause 5.1(b) will not have any adverse
tax consequences for the Parties. If the Parties do not obtain a
favourable tax ruling by 1 December 1998, HER-H will have the option,
exercisable until 4 December 1998, of requiring that the Parties
proceed with the restructuring on condition that HER-H will indemnify
EHA in respect of any such adverse tax consequence for it.
5.5 Upon completion of the share swap referred to in Article 5.1, the
▇▇▇▇▇ Shareholders' Agreement (Appendix A) shall, notwithstanding any
provision therein to the contrary, terminate.
5.6 The Boards of Directors and Management of ▇▇▇▇▇ and ▇▇▇▇▇ Newco B.V.
shall be identical.
5.7 HER-H and EHA bind themselves to vote their shares in ▇▇▇▇▇ and in
▇▇▇▇▇ Newco B.V. in the manner necessary to give effect to the
arrangements described in this Article.
6 SHARE OFFER
6.1 Members of the EHA will be invited to subscribe to 32% of the shares of
▇▇▇▇▇ or a nominal value of up to DKK 32 million, thus bringing the
share capital up to DKK 100 million for a total consideration of up to
ECU 56.47 million (to be reduced proportionately if the entire
percentage allocated
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is not taken up). There will be restriction of any single Member
acquiring, directly or indirectly, more than ten (10)% of the total
shares in ▇▇▇▇▇. If the offering is oversubscribed by Members, shares
will be allocated amongst them on a pro rata basis.
6.2 HER-H's holding of shares in ▇▇▇▇▇ will as a consequence be reduced
from 75% to no less than 51% (depending on the number of shares taken
by Members).
6.3 EHA will hold the balance of the shares (17% to 25%).
6.4 An offer to Members to subscribe for the shares referred to in Article
5.1 will be circulated as soon as practical after execution of this
Agreement. Members desiring to accept the offer will be required to
sign and return a binding commitment letter by 15 September 1998.
Shares will be issued no later than 31 December 1998.
6.5 It will be a condition to issuing of shares that any Member committed
to take up shares shall agree to become a party to the relevant
Shareholders Agreement (Appendix H, or if the restructuring
contemplated by Article 5 does not proceed, Appendix A).
7 AUTHORITY
7.1 Attached hereto as Appendices I, J, K and L are copies of extracts of
minutes of meetings of the Board of Directors and the General Assembly
of EHA and ▇▇▇▇▇ of 23 of June 1998.
7.2 Attached hereto as Appendix M is a copy of an extract of the Minutes of
a Meeting of the Extraordinary General Assembly of ▇▇▇▇▇ dated 24 June
1998.
7.3 Attached hereto as Appendix N are copies of the following documents
provided by ▇▇▇▇▇:
1. Power of Attorney made by ▇▇▇▇▇ A/S dated 23 June 1998.
2. Declaration re material changes.
7.4 Attached hereto as Appendix P is a copy of an opinion of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, Solicitors, dated 23 June 1998 provided by HER-I.
7.5 Attached hereto as Appendix Q are copies of the following documents
provided by HER-P:
1. Unanimous Written Consent of the Board of Directors of GTS-Hermes
Inc. with attached Minute of Resolution of ▇▇. ▇▇▇ ▇▇▇▇▇▇;
2. Notarial Declaration;
3. Extract from Register of Commerce (translation);
4. Extract of Minutes of Meeting of Board of Supervisory Directors;
5. Opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and Finger dated 23 June 1998.
7.6 Attached hereto as Appendix R are copies of the following documents
provided by HER-H:
1. Minute of Resolution of Sole Director ▇▇. ▇▇▇ ▇▇▇▇▇▇;
2. Notarial Declaration;
3. Extract from Register of Commerce (translation).
7.7 Nothing in this Agreement is intended to impose any liability on any
member of EHA, except in a case where such member becomes a
Shareholder of ▇▇▇▇▇ or ▇▇▇▇▇ Newco B.V. pursuant to a Shareholders'
Agreement (Appendices A and H).
8 CONFIDENTIALITY
8.1 Each Party shall promptly supply to the other such information and
assistance which the other may reasonably request to enable it to
perform its obligations under this Agreement. Each Party shall ensure
that information provided to other Parties in accordance or in
connection with this Agreement is correct to the best of its knowledge
at the time that it is provided.
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8.2 Each Party shall keep in confidence all confidential information and
will not (and will use its reasonable endeavours to ensure that its
directors, employees, officers, servants, agents, Affiliated Companies
and professional advisers will not) disclose such information to any
third party other than in accordance with this Agreement. Each party
shall exercise no lesser degree of care in relation to confidential
information than it would apply to its own confidential information.
8.3 The following disclosures shall not constitute a breach of Clauses
8.2:
(a) a disclosure authorized in writing;
(b) publication of confidential information in accordance with a
statutory or other regulatory requirement or pursuant to an
order of a competent court or tribunal;
(c) a disclosure made to any regulator or any expert or arbitrator
appointed in accordance with the provisions of this Agreement
to the extent that such disclosure is a legal requirement;
(d) a disclosure made to financial institutions, a lender of funds
or a financial advisor where such disclosure is required as
part of an arrangement for the financing or refinancing of
such party; or
(e) a disclosure to Shareholders or majority owned Group Companies
of the party provided that any third party which receives
confidential information pursuant to this provision has agreed
to be bound by the restrictions contained in Clauses 8.2, 8.3
and 8.4 (a)-(e) in the same manner as it were a party to this
Agreement.
8.4 The provisions of Clause 8.2 do not apply to any confidential
information which:
(a) enters into the public domain other than by reason of a breach
of this Agreement;
(b) is known to the party to which it is disclosed at the time of
its disclosure;
(c) is independently generated, developed or discovered at any
time by or for the party to which it is disclosed;
(d) is disclosed by a third party without any restriction on
further disclosure; or
(e) is necessary for the purposes of permitting a party to perform
its obligations under this Agreement or a Capacity Order (as
defined in the TCA) provided that any third party which
receives confidential information pursuant to this provision
has agreed to be bound by the restrictions contained in
Clauses 8.2, 8.3 and 8.4 (a)-(e) in the same manner as if it
were a party to this Agreement.
8.5 Confidential information shall only be used for the purposes for which
it was disclosed and/or for the purposes of performing the obligations
of the parties under this Agreement or a Capacity Order.
8.6 The obligations of confidentiality in this Clause 8 shall continue for
five (5) years following the termination of this Agreement.
9 PUBLICITY
(a) For the duration of this Agreement, any formal press release,
public announcement, news release or other form of major
publicity relating to this Agreement shall be made only after
prior consultation between the Parties and mutual agreement as
to the substantive contents thereof. No party shall
unreasonably withhold or delay any consent required under this
provision.
(b) Where a formal press release, public announcement, news
release, filings or other form of major publicity relating to
the existence of this Agreement or its terms is required by
the laws of any jurisdiction governing any of the Parties or
in connection with the procurement of
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capital, no consultation or agreement between the Parties shall
be required but the Company shall provide the Parties with
advance copies prior to making any formal press release, public
announcement, news release, filings or other form of major
publicity.
10 ENTIRE CONTRACT
This Agreement and its Appendices contains the entire agreement among
the Parties with respect to the subject matter hereof and supersedes
all prior agreements among the Parties in relation to the same subject
matter. Each Party confirms to each of the others that it is not
relying on any representation, warranty, or commitment of any kind
save as set out in or explicitly contemplated by this Agreement.
11 VARIATION
11.1 No variation, modification or addition to or cancellation of any
provision of this Agreement shall be effective unless agreed in
writing by a duly authorized representative of each of the Parties.
12 NO WAIVER
12.1 Failure by any party at any time to enforce any of the provisions of
this Agreement shall neither be construed as a waiver of any rights
or remedies hereunder nor in any way affect the validity of this
Agreement or any part of it, and no waiver of a breach of this
Agreement shall constitute a waiver of any subsequent breach.
12.2 Termination of this Agreement shall not operate as a waiver of any
breach by a Party of any of the provisions thereof and shall be
without prejudice to any rights or remedies of either Party which may
arise as a consequence of such breach or which may have accrued
hereunder up to the date of such termination.
12.3 No waiver of a breach of this Agreement shall be effective unless
given in writing.
13 NOTICES
13.1 Any notice given under this Agreement shall be in writing and sent or
delivered:
in the case of ▇▇▇▇▇, to:
▇▇▇▇▇ A/S
▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
in the case of EHA, to:
▇▇▇▇▇ HOLDING ASSOCIATION
▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
in the case of HER-I, to:
Hermes Europe Railtel (Ireland) Limited
2 Custom ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇
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Ireland
Attention: Managing Director
in the case of HER-H, to:
Hermes Europe Raitel ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: Managing Director
13.2 Any notice or communication shall be deemed to have been received:
o if sent by facsimile transmission, when sent;
o if delivered by hand (including courier), when
delivered;
o if sent by air mail (where appropriate), 5 working
days after posting; or
o if sent by ordinary first class mail (where the
recipient is within the same jurisdiction as the
sender), 2 working days after posting.
In proving posting it shall be sufficient to show that the envelope
containing such notice or communication was properly addressed,
stamped and posted.
13.3 Any Party may amend its address and facsimile number specified in
Clause 13.1 by written notice to the other Parties.
14 TERMINATION
14.1 ▇▇▇▇▇ may terminate this Agreement immediately upon giving notice in
writing to the other parties in the event that HER-H becomes bankrupt
or insolvent; has sought protection from its creditors under any
statute or legal process; has suffered or permitted a trustee,
liquidator, receiver, receiver-manager or similar custodian to be
appointed or to take possession of its property or assets; has
voluntarily or involuntarily commenced proceedings for dissolution,
liquidation or winding up; or has ceased to carry on business in the
ordinary course.
14.2 If ▇▇▇▇▇ terminates this Agreement pursuant to Article 13.1, ▇▇▇▇▇ may
by notice in writing to HER-H retract the shares issued to HER-H
pursuant hereto in ▇▇▇▇▇ (or in the event that the share swap referred
to in Article 5.1 is completed, in ▇▇▇▇▇ Newco B.V.), provided that
▇▇▇▇▇ pays to HER-H a sum equivalent to the value of the services
rendered by HER-I under the TCA to the date of said notice calculated
in accordance with Schedule 3 of the TCA.
15 ASSIGNMENT
15.1 This Agreement is personal to the Parties and may not be assigned by
either of them without the consent of the other, except that HER-H may
assign this Agreement to an Affiliated Company, and such an Affiliated
Company may further assign to another Affiliated Company; provided
always that HER-P guarantees the performance of the relevant
Affiliated Company in the manner contemplated by Articles 3.6 and 4.3.
16 FURTHER ASSURANCES
The Parties shall do, execute and perform and shall procure to be
done, executed and performed all such further acts, deeds, documents
and things as may be required from time to time to give full effect to
this Agreement.
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17 DISPUTE RESOLUTION AND GOVERNING LAW.
17.1 All disputes arising in connection with this Agreement shall be
finally settled under the Rules of Conciliation and Arbitration of the
International Chamber of Commerce by one or more arbitrators appointed
in accordance with the said Rules. The place of arbitration shall be
Paris and the language of arbitration shall be English.
17.2 This Agreement shall be governed by and construed in accordance with
English Law.
Signed in four counterparts in Brussels
▇▇▇▇▇ HOLDINGS HERMES EUROPE RAILTEL
HOLDINGS B.V.
/s/ [Illegible] /s/ ▇▇▇ ▇▇▇▇▇▇
----------------------------------- ------------------------------------
By: By: Hermes Europe Railtel B.V.
Title: ▇▇▇ ▇▇▇▇▇▇
Date: Title: Managing Director
Date:
▇▇▇▇▇ A/S HERMES EUROPE RAILTEL
(IRELAND) LIMITED
/s/ [Illegible] /s/ [Illegible]
----------------------------------- ------------------------------------
By: By:
Title: Title:
Date: Date:
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