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Exhibit 10.7
PARTICIPATION AND SHAREHOLDERS AGREEMENT
The undersigned,
1. TELECOM FOUNDERS B.V., a company incorporated under the laws of the
Netherlands with it statutory seat in Abcoude, hereinafter referred to
as "Founders", duly represented by its managing director Xx. Xxxxxx
Xxxx Xxxxx;
2. NESBIC C.V., a limited partnership organised under the laws of the
Netherlands with its registered seat in Utrecht, hereinafter referred
to as "Nesbic", duly represented by its managing partner Nesbic B.V.,
duly represented by Xx. Xxx xxx Xxxxxx by Power of Attorney;
3. CROMWILLD LIMITED, a company incorporated under the laws of the Isle of
Man, with registered office at 0 Xxxxxx Xxxxxx, Xxxxxxx, Xxxx of Man,
hereinafter referred to as "Cromwilld", duly represented by its
managing director Xx. Xxxxx Xxxxxx;
4. VERSATEL TELECOM B.V., a company incorporated under the laws of the
Netherlands, with its statutory seat in Amsterdam, hereinafter referred
to as the "Company", duly represented by its managing director Xx.
Xxxxxx Xxxx Xxxxx;
5. XXXXXX XXXX XXXXX, residing in (1391 LZ) Abcoude at Koppeldijk 8,
hereinafter referred to as "Xxxxx";
6. OPEN SKIES INTERNATIONAL, INC., a US subchapter "S" corporation,
incorporated under the laws of the State of Colorado, USA, registered
in Denver, Colorado, hereinafter referred to as "Open Skies", duly
represented by its managing director Xx. Xxxxxx Xxxx Xxxxx;
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Parties 1, 2 and 3 and their successors in accordance with Article 15
hereinafter jointly and individually referred to as Shareholders and Shareholder
respectively.
Parties 1 up to 4 hereinafter jointly and individually referred to as Parties
and Party respectively.
WHEREAS Founders and Nesbic entered into a shareholders agreement on
August 29, 1995, hereinafter referred to as "the First
Financing Round Agreement";
WHEREAS Pursuant to the First Financing Round Agreement Founders
incorporated the Company on October 10, 1995;
WHEREAS Pursuant to the First Financing Round Agreement:
- Founders took 2,500,000 newly issued shares in the
Company (including those obtained at incorporation)
against payment of NLG 250,000;
- Nesbic took 2,450,000 newly issued shares in the
Company against payment of NLG 245,000;
- Nesbic provided the Company with 2 subordinated
convertible loans ("the First Financing Round Loans")
totalling NLG 2,355,000.
WHEREAS The current participation of Founders and Nesbic is as
reflected in the following schedule:
Shareholder # Shares % Shares Loans (in NLG)
-----------------------------------------------------------------------------------------
Founders 2,500,000 50.5 --
Nesbic 2,450,000 49.5 2,355,000
=========================================================================================
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WHEREAS Pending the transaction contemplated in this Agreement Nesbic
has provided the Company with a bridge loan in the amount of
NLG 2,000,000;
WHEREAS The Company has been seeking additional financing up to appr.
NLG 6,250,000 and has found Shareholders willing to invest
this amount, hereinafter referred to as: "the Second Financing
Round";
WHEREAS Founders, Nesbic and Cromwilld are prepared to participate in
the Second Financing Round by subscribing to newly issued
shares in the Company;
WHEREAS As part of the Second Financing Round Nesbic and Cromwilld are
furthermore prepared to provide the Company with additional
subordinated convertible loans, hereinafter referred to as:
"the Second Financing Round Loans";
WHEREAS Cromwilld shall purchase from Nesbic part of Nesbic's shares
in the Company;
THEREFORE HAVE AGREED AS FOLLOWS:
ARTICLE 1. INTERPRETATION
In this Participation and Shareholders Agreement ("the Agreement") the following
expressions have, except where the context otherwise requires, the meaning as
defined in the clauses, mentioned after such expressions.
Agreement Article 1
Amended Articles of Association Article 7.1
Annual Business Plan Article 17.1
Company Introduction
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Closing Article 2.2
ESOP Article 16.1
First Financing Round Agreement Preamble
First Financing Round Loans Preamble
Founders Introduction
General Meeting of Shareholders Article 10.1
Management Board Article 9.1
Xxxxx Introduction
Nesbic Introduction
New Shareholder Article 15.1
Notary's Account Article 5.1
Cromwilld Introduction
Open Skies Introduction
Parties Introduction
Party Introduction
Receiving Shareholder Article 13.2
Second Closing Article 2.1
Second Financing Round Preamble
Second Financing Round Loans Preamble
Shareholder Introduction
Shareholders Introduction
Supervisory Board Article 10.1
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ARTICLE 2. TRANSFER OF SHARES
2.1 Nesbic herewith sells, and Cromwilld herewith purchases, 990,000 shares
of par value NLG 0.10 each in the capital of the Company numbered
3,960,001 up to and inclusive 4,950,000. The purchase price of these
shares is NLG 500,000. Transfer of full legal and beneficial title to
these shares will take place against payment of the purchase price by
Deed of Transfer attached to this Agreement as Annex 1. This Deed of
Transfer shall be executed before civil law notary Mr. H. van Wilsum or
his substitute at a closing, hereinafter referred to as: "the Second
Closing", to be held at the offices of Xxxxx & Xxxxxxx/ Xxxxx &
XxXxxxxx, Amsterdam, before or ultimately on 27 December 1996.
2.2 Attached to this Agreement as Annex 2 is a draft statement by Founders
approving the transfer of shares as referred to in Article 2.2 and
waiving any preemptive rights of first refusal in accordance with the
Articles of Association of the Company. This statement shall be signed
and delivered by Founders at a closing, hereinafter referred to as:
"the Closing", to be held at the offices of Xxxxx & Xxxxxxx/ Xxxxx &
XxXxxxxx, Amsterdam, starting with the immediately following the
execution of this Agreement.
ARTICLE 3. ISSUE OF SHARES
3.1 At the Closing Founders, Nesbic and Cromwilld shall take a shareholders
resolution authorising the management board of the Company to issue
shares to Founders, Nesbic and Cromwilld on the Second Closing and
after receipt of the payments as reflected in the following schedule:
Issue to: Number of Shares: Payment to be made:
------------------------------------------------------------------------
Founders 198,000 NLG 249,998.76
Nesbic 1,646,000 NLG 2,078,272.50
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Issue to: Number of Shares: Payment to be made:
------------------------------------------------------------------------
Cromwilld 2,116,000 NLG 2,671,703.90
========================================================================
3.2 Attached to this Agreement as Annex 3 is the shareholders resolution
authorising the Company to issue the shares as referred to in Article
3.1.
3.3 The new shares shall be issued at the Second Closing, by a Deed of
Issuance, in the form attached to this Agreement as Annex 4, to be
executed before civil law notary Mr. H. van Wilsum or his substitute.
ARTICLE 4. CONVERTIBLE SUBORDINATED LOANS
4.1 Effective as per the Second Closing Nesbic herewith sells and assigns,
and Cromwilld herewith purchases and accepts, part of its rights and
obligations under the First Financing Round Loans corresponding with
NLG 1,213,000 of the total principal amount of the First Financing
Round Loans of NLG 2,355,000. The purchase price to be paid by
Cromwilld to Nesbic is equal to the nominal value of that part of the
First Financing Round Loans transferred, NLG 1,213,000 and shall be due
and payable at the Second Closing. The Company herewith acknowledges
and accepts the assignment.
4.2 Nesbic and Cromwilld shall at the Second Closing each make available to
the company additional subordinated convertible loans of NLG 625,000 in
the preamble of this Agreement referred to as "the Second Financing
Round Loans".
4.3 The rights and obligations of Nesbic and Cromwilld on the one hand and
the Company on the other hand in respect of the First and Second
Financing Round Loans shall be as reflected in the loan agreements
attached to this Agreement as Annexes 5 and 6, which loan agreements:
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(i) shall be executed at the Closing;
(ii) shall replace existing agreements in respect of the First
Financing Round Loans; and
(iii) shall provide for a conversion in newly issued shares in the
capital of the Company up to at most, both loans together, 5%
in the capital of the Company after issuance.
ARTICLE 5. PAYMENTS
5.1 At or prior to the Second Closing the following payments shall be made:
(i) Cromwilld shall pay the purchase price due to Nesbic pursuant
to Article 2.2 by transferring by telephone transfer an amount
of five hundred thousand Netherlands Guilders (NLG 500,000) to
bank account number 54.31.72.201 at ABN AMRO Bank N.V. in the
name of Stichting Derdengelden notariaat Xxxxx & Xxxxxxx ("the
Notary's Account");
(ii) Founders and Cromwilld shall pay to the Company the amounts
payable pursuant to Article 3.1, two hundred and forty nine
thousand nine hundred and ninety eight Netherlands Guilders
and seventy six cents (NLG 249.998,76) and two million six
hundred seventy one thousand and seven hundred and three
Netherlands Guilders and ninety cents (NLB 2.671.703,90)
respectively, by transferring these amounts by telephone
transfer to the Notary's Account;
(iii) Nesbic shall pay to the Company the amount payable pursuant to
Article 3.1 by:
- transferring by telephone transfer to the Notary's
Account an amount of twenty six thousand six hundred
and five Netherlands Guilders and eighty nine cents
(NLG 26,605.89); and
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- setting off Nesbic's obligation to pay the remaining
two million Netherlands Guilders (NLG 2,000,000)
against the Company's obligation to repay the bridge
loan of two million Netherlands Guilders (NLG
2,000,000) provided by Nesbic to the Company
increased with fifty one thousand six hundred sixty
six Netherlands Guilders and sixty one cents (NLG
51,666.61) interest as specified at Annex 7 attached
to this Agreement; the Company shall at the Closing
accept payment by means of the set off described
above.
(iv) Cromwilld shall pay the purchase price due to Nesbic pursuant
to Article 4.1 by transferring by telephone transfer an amount
of one million two hundred and thirteen thousand Netherlands
Guilders (NLG 1,213,000) to the Notary's Account;
(v) Nesbic and Cromwilld shall each pay to the Company the amounts
of the additional convertible loan referred to in Article 4.2
by transferring by telephone transfer six hundred twenty five
thousand Netherlands Guilders (NLG 625,000) to the Notary's
Account.
ARTICLE 6. INVESTMENT SCHEDULE
6.1 Following the transfer and issuance of shares referred to in Article 2
and 3 above and the execution of the loan agreements referred to in
Article 4 above the investment of the Shareholders in the Company is as
follows:
Shareholder # Shares % Shares Loans (in NLG)
--------------------------------------------------------------------------------
Founders 2,698,000 30.28 --
Nesbic 3,106,000 34.86 1,767,000
Cromwilld 3,106,000 34.86 1,838,000
================================================================================
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ARTICLE 7. ARTICLES OF ASSOCIATION
7.1 At the Closing Shareholders shall take a shareholders resolution to
amend the articles of association of the Company, in accordance with
the shareholders resolution attached to this Agreement as Annex 8. The
amended articles of association, hereinafter referred to as: "the
Amended Articles of Association" will read in accordance with Annex 9
to this Agreement. The Amended Articles of Association will provide,
inter alia, for a Supervisory Board.
7.2 Until the articles of association of the Company have been amended the
Parties shall act as if amendment has already been effected.
ARTICLE 8. CONDITION PRECEDENT
8.1 The obligations of the Parties to this Agreement are all conditional
upon the Condition Precedent ("opschortende voorwaarde") that at the
Second Closing all Parties shall have complied with their obligations
pursuant to the Articles 2, 3, 4, 6 and 7 of this Agreement.
ARTICLE 9. MANAGEMENT BOARD
9.1 The present management board ("statutair bestuur") of the Company,
hereinafter referred to as "Management Board", composed of Xx. Xxxxxx
Xxxx Xxxxx, shall be replaced by Open Skies under the terms and
conditions as set forth in the Management Agreement attached to this
agreement as Annex 10. The Management Agreement shall be executed at
the Closing. At the Closing Founders and Nesbic shall take a
Shareholders Resolution appointing Open Skies and dismissing Xxxxx as
Managing Director of the Company. Xxxxx shall not have a claim in
consequence of this dismissal. A final draft of that Shareholders
Resolution is attached to this Agreement as Annex 11.
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9.2 The Company may terminate the Management Agreement forthwith upon Xxxxx
becoming unable to render services as the Manager defined in the
Management Agreement. Xxxxx shall not have any claim in consequence of
such dismissal.
9.3 If and when the Management Agreement is terminated.
(i) by the Company for reasons other than those specified in
Article 9.2 of this Agreement and the Articles 5.2, 5.3 and
5.4 of the Management Agreement;
(ii) by Open Skies for reasons that, would Open Skies be considered
an employee, would qualify as good cause ("dringende redenen"
as defined in 7A:1639 q BW) for Open Skies to resign;
(iii) by Open Skies due to the appointment without the consent of
Open Skies of one or more managing directors next to Xxxxx who
have signing authority independently of Xxxxx.
Versatel shall pay Open Skies the value of 2% of the shares in Versatel
or two times the annual management fee (as defined in Article 2 of the
Management Agreement, whichever is higher. The value of the shares
shall be determined in accordance with the provisions in the Articles
of Association of Versatel that arrange for a valuation of shares upon
transfer thereof.
9.4 Xxxxx shall fulfil and comply with all obligations imposed on the
Manager (as defined in the Management Agreement) by the Management
Agreement.
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ARTICLE 10. SUPERVISORY BOARD
10.1 The supervisory board ("raad van commissarissen") of the Company,
hereinafter referred to as: "the Supervisory Board", shall be composed
of four members, to be appointed by the general meeting of shareholders
("algemene vergadering van aandeelhouders") of the Company, hereinafter
referred to as "General Meeting of Shareholders". Nesbic and Cromwilld
each have the right to nominate one member of the Supervisory Board.
Founders have the right to nominate two members of the Supervisory
Board. The fourth member of the Supervisory Board, that shall be
appointed upon nomination of Founders, will have to be acceptable to
both Nesbic and Cromwilld. Nesbic and Cromwilld shall not withhold
their acceptance unreasonably. Shareholders shall vote as shareholders
of the Company in such manner that a member of the Supervisory Board
nominated by one of the Shareholders in accordance with the preceding,
will be appointed. If an Shareholder requests that the member of the
Supervisory Board nominated by him be dismissed, or suspended
Shareholders will vote for such dismissal or suspension.
10.2 The member of the Supervisory Board appointed upon nomination of
Nesbic, initially Xx. Xxx xxx Xxxxxx, shall be appointed chairman of
the Supervisory Board. The chairman of the Supervisory Board shall have
a casting vote if the Supervisory Board cannot reach a decision due to
a tie in votes. The Supervisory Director nominated by Cromwilld shall
initially be Mr. Xxxxx X'Xxxxx. One Supervisory Director nominated by
Founders shall initially be Xx. Xxxxxxx Xxxxxxx Xxxxx. Nesbic
acknowledges the valuable relationship of Xx. Xxx xxx Xxxxxx with Xxxxx
and will therefor take into account this relationship in deciding on
the replacement of Xxx xxx Xxxxxx as a member of the board of
supervisory directors, if any.
10.3 Each member of the Supervisory Board will receive a remuneration of at
least NLG 12,500 on a yearly basis (including costs, expenses and
exclusive of VAT).
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10.4 The Supervisory Board shall meet at regular intervals but at least four
times a year or at the request of one of its members.
10.5 The Management Board shall require the prior approval of the
Supervisory Board for resolutions or when representing the Company in
transactions:
- to acquire, dispose of, encumber, rent, let or otherwise
acquire or grant any right to use or enjoy registered
property;
- to conclude agreements whereby the Company is granted a bank
credit;
- to borrow or lend moneys, except for the use of any bank
credit extended to the Company;
- to establish or terminate permanent, direct or indirect
cooperation with another enterprise;
- to participate directly or indirectly in the capital of
another enterprise or increase or decrease the extent of any
such participation;
- to make any investments outside the approved business plan for
amounts higher than NLG 50,000 and/or for periods longer than
one year;
- to provide security in personam or in rem;
- to appoint any such officers as contemplated in Article 19,
para. 2 of the Articles of Association, and determine their
powers and title;
- to conclude settlement agreements;
- to act in legal proceedings, including arbitration cases, with
the exception of commencing summary proceedings or any other
urgent legal action;
- to conclude or amend employment contracts involving an annual
remuneration in excess of the maximum premium income as
defined in the General Old-Age Pensions Act ("AOW");
- to set up pension schemes and grant pension rights in excess
of existing schemes;
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- to make a proposal for a merger ("juridische fusie") as
defined in Title 7, Book 2 of the Dutch Civil Code;
- to file a petition for a winding up order;
- to apply for a suspension of payments;
- to vote on shares held by the Company in other companies.
ARTICLE 11. FINANCING OF THE COMPANY
11.1 The Parties shall procure that any financing which may be required by
the Company shall be provided in the following order of priority:
(a) retained earnings;
(b) long term bank financing on the strength of the assets or
business to be acquired, such long term financing also to be
approved by the Supervisory Board;
(c) subordinated debenture loans to be provided by the
Shareholders (excluding Founders) in proportion to their
interests;
(d) increase of the capital of the Company with an effort to
minimise dilution.
11.2 Article 11.1 does not impose an obligation on the Parties to provide
further subordinated debentures or to take new shares in the capital of
the Company.
11.3 The dividend policy of the Company will be to distribute at least 50%
of its profits after tax, unless the financial position of the Company
in any year according to the opinion of the Board of Supervisory
Directors does not permit such distribution. No dividend payments are
allowed as long as the Company has not entirely redeemed the First and
Second Financing Round Loans.
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ARTICLE 12. ULTIMATE OWNERSHIP AND NON COMPETITION
12.1 Mr. Xxxxx X'Xxxxx represents and warrants that at the Closing and at
any time thereafter, until agreed otherwise by the Shareholders:
(i) he has a controlling interest in Cromwilld;
(ii) he owns at least 90% of the outstanding capital in Cromwilld;
(iii) he shall be sole director of Cromwilld or have a controlling
interest in the Board of Cromwilld.
12.2 At the Closing Mr. Xxxxx X'Xxxxx shall sign and deliver a non compete
letter on the form attached to this Agreement as Annex 12.
12.3 Mr. Xxxxx X'Xxxxx shall co-sign this agreement in acceptance of the
obligations imposed on him by this Article.
12.4 Xxxxx will at all times ultimately own more than 50% of all issued and
outstanding voting and equity shares in Founders.
ARTICLE 13. TRANSFER OF SHARES
13.1 Unless there is a written agreement between the Shareholders to the
contrary, the transfer of shares in the capital of the Company shall be
made in accordance with the Amended Articles of Association. The
remaining provisions of Article 13 shall comprise such an agreement. In
determining the price of the shares of the Company a bona fide offer of
a third party shall be taken into account.
13.2 If and when any of the Shareholders ("the Receiving Shareholder")
receives a bona fide third party offer to purchase (a proportion of)
its shares, it shall procure that such offer is extended,
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under the same terms and conditions to (a similar proportion of) the
shares held by the other Shareholders and the Receiving Shareholder
shall not sell and transfer (a proportion of) its shares to the third
party unless:
(i) the other Shareholders also sell and transfer (a similar
proportion of) their shares to the third party, or
(ii) the other Shareholders have given written notice to the
Receiving Shareholder that it/they do not want to invoke
either its/their right to co-sale under (i) or to invoke
Article 13.4 within 14 days from the offer having been
extended, or
(iii) the other Shareholders did not respond in writing to the
extended offer within 30 days of such offer having been
presented to the other Shareholders.
But upon fulfilment of (i), (ii) or (iii), the Receiving Shareholder
may transfer (a proportion of) its shares, and the Shareholders shall
be deemed to have waived their rights to be offered them under the
Amended Articles of Association.
13.3 If a third party offer made to an Shareholder contains non-cash items
such non-cash items shall also be part of the offer made to the other
Shareholders, unless:
- such non-cash items cannot be offered to the other
Shareholders; or
- the other Shareholders do not wish to accept such non-cash
items, in which case the non-cash items of the third party
offer shall be valued by the auditors of the Company and the
non-cash items shall be replaced by their corresponding value.
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13.4 In case a third party is prepared to acquire the shares of all
Shareholders on similar conditions and has made a bona fide offer to
that effect, and this Article 13.4 has been invoked under Article 13.2
the Shareholders will vote on the acceptance of the offer. If any of
the Shareholders does not wish to accept the offer of such third party
it is obliged to purchase the shares of the other Shareholders voting
in favour of the third party offer, against the price offered by the
third party (including non-cash values under Article 13.3). Transfer of
and payment of all such shares must take place within two months after
votes have been cast in respect of an offer of a third party.
ARTICLE 14. AFFILIATES
Nesbic, Cromwilld and Founders may transfer their shares to an affiliate
provided, however, that the ultimate legal and beneficial title of such shares
remains the same as it was prior to such transfer and that such affiliate
delivers prior written confirmation to assume all rights and obligations of the
transferor pursuant to this Agreement, in accordance with Article 15 of this
Agreement.
ARTICLE 15. NEW SHAREHOLDER
15.1 Parties undertake to procure that the provisions of this Agreement
shall be binding upon and inure to, any transferee of the shares in the
capital of the Company held by any Shareholder, including those taken
from the Company by original issue or re-issue of shares from and after
the date hereof. Parties hereby unconditionally and irrevocably
undertake not to sell, transfer, issue or otherwise dispose of any of
the shares held by them to a third party, hereinafter referred to as:
"New Shareholder", unless such New Shareholder has accepted and agreed
to be bound by any and all provisions of this Shareholders Agreement.
Upon such agreement and acceptance, such New Shareholder shall become a
party to this agreement.
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15.2 The Company shall not issue shares to any person or (legal) entity not
being a party to this Agreement, unless such person or (legal) entity
shall execute and acknowledge the terms hereof and agree to be bound
hereby.
ARTICLE 16 EMPLOYEE STOCK OPTION PLAN
16.1 Parties agree to implement an employee stock option plan ("the ESOP").
The ESOP shall provide for the granting of options on depository
receipt of shares that shall be issued by a trust ("Stichting
Administratiekantoor"). Nesbic, Cromwilld and Founders shall each make
a number of shares available to the Trust for the granting of options
under the ESOP corresponding with 1% of the total issued and
outstanding capital of the Company after the Second Financing Round
(and before conversion pursuant to the First and Second Financing Round
Loans). Founders shall also make available to the Trust the number of
shares required to enable the Trust to issue depository receipts of
shares if and when the existing or promised options on 150,000
depository receipts shares granted by Founders are exercised.
16.2 Parties agree to incorporate the Trust as customary in the Netherlands
for a trust that issues depository receipts of shares. The board of the
Trust shall be composed of the members of the Supervisory Board.
ARTICLE 17. FINANCIAL REPORTING
17.1 Each year an annual business plan ("the Annual Business Plan") shall be
presented to the Shareholders before November 15 of the preceding year.
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17.2 The Annual Business Plan has to be unanimously approved by the Board of
Supervisory Directors. If no unanimous decision on the approval can be
reached within 30 days, the business plan may be adapted by a simple
majority of the Supervisory Board.
17.3 Annual reports of the Company will be provided to Shareholders six
months after the fiscal year end.
17.4 The Management Board will give its best efforts to provide Shareholders
with Profit and loss account, balance sheet, cash flow statements and
management reports of the Company on a quarterly basis, within 15 days
after the end of each quarter.
ARTICLE 18. ACCOUNTANT
18.1 The Company shall operate its business and maintain its organisation in
such manner as to ensure that its registered accountant will issue an
unconditional approval ("goedkeurende verklaring zonder voorbehoud") on
the Annual Accounts of the Company.
18.2 The Management Board of the Company will instruct the registered
accountant to make annual management letters, which will be discussed
with the Management Board, the Supervisory Board, the Shareholders and
the registered accountant.
18.3 The Company will appoint for the first time Xxxxxx Xxxxxxxx as the
accountant of the Company.
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ARTICLE 19. TERM / TERMINATION / VALIDITY
19.1 Once this Agreement has come into force and effect, it shall remain in
force (1) until the date on which this Agreement is terminated by
written agreement of all of the Parties, or (2) if and as soon as the
Parties have jointly sold and transferred the entire issued and paid-up
share capital of the Company to a third party, or (3) the Parties have
effectively listed the entire share capital of the Company on any
securities market.
19.2 In the event one of the Parties has sold and transferred all its shares
in the Company in accordance with this Agreement and the Articles of
Association, it shall cease to be one the Parties.
ARTICLE 20. COSTS
20.1 All costs in connection with the drafting and execution of this
agreement with annexes shall be borne by the Company. All amounts
billed to the Company shall include costs plus expenses.
20.2 All costs made by advisors to Founders, Nesbic and Cromwilld in respect
of this Agreement with a maximum of NLG 10,000 each shall also be borne
by the Company.
ARTICLE 21. CONFLICT BETWEEN THIS AGREEMENT AND THE ARTICLES
If and when a conflict arises between this Agreement and the Articles of
Association of the Company, the provisions of this Agreement shall prevail.
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ARTICLE 22. ENTIRE AGREEMENT
22.1 This Agreement with the Annexes attached thereto constitutes the entire
Agreement between the Parties on the subject of this Agreement, and
this Agreement with Annexes supersedes and cancels any previous
agreements between the Parties on the subject of this Agreement,
including the First Financing Round Agreement.
ARTICLE 23. GOVERNING LAW
23.1 This agreement shall be governed entirely by Netherlands law.
ARTICLE 24. JURISDICTION
24.1 Any and all disputes arising from or connected with this Agreement or
any amendment hereof shall be settled exclusively by the competent
court at Amsterdam, the Netherlands, unless the Parties to such dispute
explicitly agree otherwise in writing.
ARTICLE 25. ANNEXES/COUNTERPARTS
25.1 The Annexes 1 up to and including 12 to this Agreement are considered
to be part of this Agreement.
25.2 This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one instrument.
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ARTICLE 26. NOTICES
26.1 Any notice or other communications hereunder, shall be sufficiently
given if in writing and personally delivered or send by registered
mail, postage prepaid and addressed to the following addresses or such
other addresses as the Parties shall be given notice of pursuant
hereto:
If to Telecom Founders B.V.:
Telecom Founders B.V. Copy to: Xxxxx & Xxxxxxx/
Baambrugse Zuwe 61 Xxxxx & XxXxxxxx
3645 AB Vinkeveen Attn. Mr. Mic van Bremen
THE NETHERLANDS X.X. Xxx 0000
Telefax: 00 31 297 21 2039 1000 CS AMSTERDAM
THE NETHERLANDS
Telefax: 00 31 20 62 67 649
If to Nesbic C.V.:
Nesbic C.V. Copy to: Trenite Van Doorne
Savannahweg 17
3542 AW Utrecht Attn. Xx. Xxxx X. Jaakke
THE NETHERLANDS X.X. Xxx 00000
Telefax: 00 31 30 241 4833 1070 AG Amsterdam
THE NETHERLANDS
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If to Cromwilld Limited:
Cromwilld Limited Copy to: Xxxxxxx Xxx
0 Xxxxxx Xxxxxx
Xxxxxxx Xxxx. Xx. Xxxx X'Xxxxxxx
Isle of Man Xxxxxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxx 0
Xxxxxxx
Telefax: 00 353 1 66 25 400
If to Versatel Telecom B.V.:
Versatel Telecom B.V. Copy to: Xxxxx & Xxxxxxx/
Xxxxxxxxxxx 00 Xxxxx & XxXxxxxx
1105 BV Amsterdam Attn. Mr. Mic van Bremen
THE NETHERLANDS X.X. Xxx 0000
Telefax: 00 31 20 430 4301 000 XX XXXXXXXXX
XXX XXXXXXXXXXX
Telefax: 00 31 20 62 67 949
Agreed and signed in ____fold at __________, on __ December, 1996
/s/ R. Xxxx Xxxxx /s/ L. van Doorne
_____________________________ ______________________________
TELECOM FOUNDERS B.V. NESBIC C.V.
Represented by: Represented by:
Xx. Xxxxxx Xxxx Xxxxx Xx. Xxx xxx Xxxxxx
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/s/ X. Xxxxxx /s/ L. van Doorne
----------------------------- -----------------------------
CROMWILLD LIMITED VERSATEL TELECOM B.V.
Represented by: Represented by:
Xx. Xxxxx Xxxxxx Xx. Xxx xxx Xxxxxx
/s/ R. Xxxx Xxxxx /s/ R. Xxxx Xxxxx
----------------------------- -----------------------------
XX. XXXXXX XXXX XXXXX OPEN SKIES INTERNATIONAL INC.
Represented by:
Xx. Xxxxxx Xxxx Xxxxx
/s/ X. X'Xxxxx
-----------------------------
MR. XXXXX X'XXXXX (for the acceptance of obligations pursuant to Article 12).
