EXHIBIT A
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MARKETING AND DISTRIBUTION
SERVICES AGREEMENT
between
RSL COM Europe, Ltd.
and
Metro Holding AG
Dated as of June 10, 1998
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MARKETING AND DISTRIBUTION
SERVICES AGREEMENT
THIS AGREEMENT, is made the 10th day of June, 1998,
BETWEEN RSL COM Europe, Ltd., whose registered office is at 0 Xxx Xxxxx
Xxxxxx Xxxxxx XX0X 0XX (the "Company"), RSL Communications, Ltd., a Bermuda
corporation whose address for service in the United Kingdom is 0 Xxx Xxxxx
Xxxxxx Xxxxxx XX0X 0XX (the "Parent"), and Metro Holding AG, a Swiss
Corporation whose address for service in the United Kingdom is c/o Xxxxxx
Xxxxxxx, 00 Xxxxxxxxxxx Xxx, Xxxxxx XX0X 0XX ("Metro").
W I T N E S S E T H:
WHEREAS, the Company directly and through its Affiliates
provides international and domestic telephone services to both carrier and
commercial accounts;
WHEREAS, Metro owns and/or controls, wholesale and retail
Distribution Channels throughout Europe, and, among other things,
distributes to businesses a broad range of products and services;
WHEREAS, Metro believes that the marketing and distribution
in the Territory, through its Distribution Channels of the Company's products,
would be beneficial to such Distribution Channels and to the Company;
WHEREAS, in part consideration for the execution and delivery
by Metro of this Agreement, the Company, RSL Communications, Ltd., the
Company's parent and Metro have entered into a Stock Subscription, Stock Option
and Stockholders Agreement.
NOW, THEREFORE, to implement the foregoing and in
consideration of the mutual agreements contained herein, the parties hereto
hereby agree as follows:
CLAUSE 1
DEFINITIONS
1.1 Certain Definitions. As used in this Agreement, the
following terms, not defined elsewhere, have the following meanings:
Affiliate: with respect to any Person, a Person that directly
or indirectly through one or more intermediaries, controls, is controlled by,
or is under common control with such Person. "Control" (including the terms
"controlled by" and "under common control with") means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a person, whether through the ownership of voting securities,
by contract or credit arrangement, as trustee or executor, or otherwise.
Business Day: any day other than a Saturday, a Sunday, or a
day on which commercial banking institutions are authorized or required by law
to be closed in London.
Business Plan: the meaning given in Clause 2.4(b).
Company: the meaning given in the introductory paragraph of
this Agreement.
Confidentiality Agreements: the letter agreements, each dated
April 1, 1998, between RSL Communications, Ltd. and each of Metro, Metro AG,
debitel Kommunikationstechnik GmbH and Daimler-Benz InterService (debis) AG.
Coordinators: the meaning given in Clause 2.2(j).
Debitel: Debitel Kommunikationstechnik GmbH & Co. KG.
Distribution Channels: means Metro's wholesale and retail
marketing and distribution channels.
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Effective Date: means the date on which the Completion shall
occur.
Expense Budget: the meaning given in Clause 2.4(b).
Governmental Entity: any governmental or regulatory
authority, agency, court, commission or other entity, domestic or foreign.
Marketing Arrangement: the agreement entered into between the
Company and a Distribution Channel.
Metro: the meaning given in the introductory paragraph of
this Agreement.
Metro AG: Metro AG, Cologne, a German public company.
Metro Coordinator: the meaning given in Clause 2.2(j).
Parent: the meaning given in the introductory paragraph of
this Agreement.
Person: any natural person, firm, partnership, association,
corporation, company, trust, business trust, Governmental Entity or other
entity.
RSL Coordinator: the meaning given in Clause 2.2(j).
RSL Products: includes, without limitation, "Call-by-Call",
"Pre-Selection", "Prepaid Calling Card", and any other telecommunication
product or services distributed by the Company or its affiliates from time to
time, provided that prior to January 1, 1999, the term "RSL Products" will not
include the marketing or provision of any service involving the transmission of
voice or facsimile through the Internet.
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Sales Task Force: the meaning given in Clause 2.4(a).
Stock Subscription, Stock Option and Stockholders Agreement:
means the Stock Subscription, Stock Option and Stockholders Agreement, dated as
of June 10, 1998, among the Company, RSL Communications, Ltd. and Metro.
Subsidiary: with respect to any Person (the "First Parent"),
any other Person (other than a natural person), whether incorporated or
unincorporated, of which at least a majority of the securities or ownership
interests having by their terms ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions is
directly or indirectly owned or controlled by the First Person or by one or
more of its respective Subsidiaries or by the First Person and any one or more
of its respective Subsidiaries.
1.2 Other Definitional Provisions. (a) The words "hereof",
"herein" and "hereunder" and words of similar import, when used in this
Agreement, refer to this Agreement as a whole and not to any particular
provision of this Agreement.
(b) Terms defined in the singular have the same meaning when
used in the plural, and vice versa.
(c) References to "Clauses" and "Annexes" refer to Clauses
of, and Annexes to, this Agreement (as each of the same may be amended in
accordance with the terms hereof), unless otherwise specified.
(d) Terms used herein without definition, shall have the
meanings specified thereto in the Stock Subscription, Stock Option and
Stockholders Agreement.
CLAUSE 2
SERVICES; OBLIGATIONS OF PARTIES
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2.1 The Services. During the term of this Agreement, Metro
agrees to use its best efforts (a) to assist the Company to negotiate in good
faith and enter into agreements to market and distribute a full range of RSL
Products through Distribution Channels it owns and/or those it controls and the
Distribution Channels of Metro AG, it being understood that although Metro
indirectly is the principal shareholder of Metro AG, it does not control Metro
AG, (b) to use its influence with related and unrelated companies, including,
without limitation, outside of the control of Metro or Metro AG, to assist the
Company in marketing, distributing and selling RSL Products, and (c) to use its
influence to enable the cooperation and commercial relationship between the
Company and Debitel in the field of fixed network resources and mobile
telecommunications services and the distribution and sale of such products and
services and RSL Products by Debitel.
2.2 Metro's Obligations. In furtherance of the services to be
provided by Metro pursuant to Clause 2.1, Metro's obligations shall include,
but shall not be limited to, the following:
(a) Upon request of the Company, provide access to the
management and directors of each of the Distribution
Channels selected by the Company, and otherwise assist
with communications to and the commercial arrangements
with each of the Distribution Channels;
(b) Promote to the Distribution Channels its support of RSL
Products and the potential value of Marketing Arrangements
to the Distribution Channels;
(c) Use it best efforts and its own resources to develop
incentives for the Distribution Channels in connection
with Marketing Arrangements;
(d) Through its participation in the Sales Task Force (as
defined in Clause 2.4), advise the Company in
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structuring reasonable Marketing Arrangements with the
Distribution Channels, and assist in preparation of joint
business plans in connection therewith;
(e) Consistent with its fiduciary duties and subject to the
Confidentiality Agreements, provide the Company with such
commercial and financial information regarding the
Distribution Channels as the Company may reasonably
request in connection with the developing and structuring
of potential Marketing Arrangements;
(f) Assist the Company in resolving problems or disputes that
may arise with Distribution Channels;
(g) Keep the Company informed of Distribution Channels'
reaction to and implementation of the marketing and sale
of RSL Products;
(h) To extent permitted by applicable law and not disruptive
to Metro's management of, or relations with, its
Distribution Channels, enter into negotiations with the
Company on behalf of the Distribution Channels;
(i) Use its best efforts to cause the Distribution Channels to
comply with their obligations pursuant to the Marketing
Arrangements, provided that nothing in this Clause 2.2(h)
is to be construed as a guarantee by Metro of the
performance of such obligations; and
(j) Provide a Metro executive, reasonably satisfactory to the
Company (the "Metro Coordinator"), to act, jointly with an
executive appointed by the Company (the "RSL Coordinator"
and, together with the Metro Coordinator, the
"Coordinators"), as coordinators of the Sales Task Force.
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2.3 The Company's Obligations. During the term of this
Agreement, the Company's obligations shall include, but shall not be limited
to, the following:
(a) Keep Metro informed of the status of its negotiations with
the Distribution Channels;
(b) Invite the Sales Task Force Members to attend all meetings
with the Company and the Distributions Channels;
(c) Make available to Metro and the Sales Task Force summary
statements of operational and financial results with
respect to each of the Marketing Arrangements;
(d) Comply with its obligations pursuant to the Marketing
Arrangements; and
(e) Use its best efforts to provide that its Affiliates and
third party distributors do not market RSL Products to any
Distribution Channels or any retail outlet contained in
the Distribution Channels other than pursuant to Marketing
Arrangements or other transactions entered into pursuant
to this Agreement.
2.4 Sales Task Force. (a) There will be a task force (the
"Sales Task Force") comprised of a team of persons named by each of the
Company and Metro to facilitate and execute marketing and sales of RSL
Products through the Distribution Channels. The Sales Task Force will be
under the immediate supervision of the Coordinators who will be under the
overall management of the Company. Except for the Metro Coordinator, who
will remain an employee of Metro and whose compensation will be paid by
Metro, all members of the Sales Task Force will be employees of the Company
or its Affiliates designated by the Company and their compensation will be
paid by the Company or its Affiliates designated by the Company. The initial
Metro Coordinator will be Xxxxx-Xxxxxx Susse. The initial RSL Coordinator
will be Xxxxxx
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Xxxx. The other initial members of the Sales Task Force and their
responsibilities are set forth in Annex A hereto.
(b) A business plan for the two-year period commencing the
date hereof reflecting projected Marketing Arrangements is attached as Annex B
hereto (the "Business Plan"). An expense budget for the Sales Task Force for
the one-year period beginning the date hereof is attached as Annex C hereto
(the "Expense Budget"). This Agreement, the Business Plan and Expense Budget
contemplate the Distribution Channels will not be materially reduced by
dispositions, consolidation or closures from the Distribution Channels existing
on the date hereof, but nothing herein shall constitute a commitment by Metro
to maintain its existing Distribution Channels.
CLAUSE 3
TERM
3.1 Term. The term of this Agreement shall commence on the
Effective Date and shall expire on the fifth anniversary thereof and shall
not be earlier terminated. In the event of material breach by Metro or the
Company of its obligations hereunder or under the Stock Subscription, Stock
Option and Shareholders Agreement, damages recoverable by the non-breaching
party shall take into account, without limitation, any and all amounts paid
by the non-breaching party pursuant to the Stock Subscription, Stock Option
and Shareholders Agreement and all costs and expenses incurred by the
non-breaching party hereunder and thereunder.
CLAUSE 4
MISCELLANEOUS
4.1 Expenses. Except as otherwise specifically provided
for in this Agreement, each party hereto shall bear their respective
expenses, costs and fees (including attorneys', auditors' and financing
fees, if any) in connection with the transactions contemplated hereby,
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whether or not the transactions contemplated hereby shall be consummated.
4.2 Notices. All notices and other communications made in
connection with this Agreement shall be in writing. Any notice or other
communication in connection herewith shall be deemed duly given (a) two
Business Days after it is sent by express, registered or certified mail,
return receipt requested, postage prepaid or (b) one Business Day after it
is sent by overnight courier guaranteeing next day delivery, in each case,
addressed as follows:
(i) if to the Company or the Parent, to:
RSL COM Europe, Ltd.
Xxxxxxxx Xxxxx
Xxxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxxx, Xxxxxx, XX0 0XX
Telecopy: 011-44-1483-45-7735
Telephone: 000-00-0000-00-0000
Attention: Xxxxxxx Xxxxxxxx
with copies to:
RSL Communications, Ltd.
x/x XXX Xxxxxxxxxxxxxx, X. Xxxxxxx, Inc.
000 Xxxxx Xxxxxx , xxxxx 0000
Xxx Xxxx, XX 00000
Telecopy: 212-317-0600
Telephone: 000-000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: 000-000-0000
Telephone: 000-000-0000
Attention: Xxxxxx X.X. Xxxxxxx, Esq.
Xxxxxxxx Xxxx
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0 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Telecopy: 011-44-171-222-3563
Telephone: 000-00-000-000-0000
Attention: Xxxx Xxxxxxxx, Esq.
(ii) if to Metro, to:
Metro Holding AG
Xxxxxxxxxxxxx 0
0000 Xxxx
Xxxxxxxxxxx
Telecopy: 04-41-41-768-7579
Telephone: 00-00-00-000-0000
Attention: Hugo Truetsch, Esq.
with copies to:
Xxxxxxx Xxxxxx & Green, P.C.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: 000-000-0000
Telephone: 000-000-0000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
Xxxxxx Xxxxxxx
00 Xxxxxxxxxxx Xxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Telecopy: 011-44-171-242-2058
Telephone: 000-00-000-000-0000
Attention: Xxxxxx Xxxxxxx, Esq.
or, in each case, at such other address as may be specified in writing to
the other parties hereto. Any party may give any notice or other
communication in connection herewith using any other means (including, but
not limited to, personal delivery, messenger service, telecopy, telex or
ordinary mail), but no such notice or other communication shall
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be deemed to have been duly given unless and until it is actually received by
the individual for whom it is intended.
4.3 Headings. The headings contained in this Agreement are
for purposes of convenience only and shall not affect the meaning or
interpretation of this Agreement.
4.4 Entire Agreement. This Agreement (including the Annexes
referred to herein or delivered hereunder), constitute the entire agreement,
and supersede all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
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4.5 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
4.6 Severability. If any provision, including any phrase,
sentence, clause, section or subsection, of this Agreement is invalid,
inoperative or unenforceable for any reason, such circumstances shall not have
the effect of rendering such provisions in question invalid, inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision herein contained invalid, inoperative, or unenforceable to any extent
whatsoever.
4.7 Governing Law. THIS AGREEMENT SHALL BE GOV ERNED IN ALL
RESPECTS, INCLUDING, BUT NOT LIMITED TO, AS TO VALIDITY, INTERPRETATION AND
EFFECT, BY THE LAWS OF ENGLAND.
4.8 Jurisdiction and Venue. Each party to this Agreement
expressly and irrevocably (a) consents that any legal action or proceeding
against it under, arising out of or in any manner relating to, this
Agreement may be brought in the courts of London, England having
jurisdiction thereof, (b) consents and submits to personal jurisdiction of
any such courts in any such action or proceeding, (c) consents to the
service of any complaint, summons, notice or other process relating to any
such action or proceeding by delivery thereof to him, her or it by hand or
by any other manner provided for in Section 4.2, (d) waives any claim or
defense in any such action or proceeding based on any alleged lack of
personal jurisdiction, improper venue or forum non coveniens or any similar
basis, and (e) waives all rights, if any, to trial by jury with respect to
any such action or proceeding. Nothing in this Section 4.8 shall affect or
impair in any manner or to any extent the right of any party to commence
legal proceedings or otherwise proceed against any other party in any
jurisdiction or to serve process in any manner permitted by law.
4.9 Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the parties hereto
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and their respective heirs, successors and permitted as signs.
4.10 Assignment. This Agreement shall not be assignable by
any party without the prior written consent of other parties.
4.11 No Third Part Beneficiaries. Except as expressly
provided herein, nothing in this Agreement shall confer any rights upon any
Person other than the parties hereto and each such party's respective heirs,
successors and permitted assigns.
4.12 Amendment; Waivers, etc. No amendment, modification
or discharge of this Agreement, and no waiver hereunder, shall be valid or
binding unless set forth in writing and duly executed by the party against
whom enforcement of the amendment, modification, discharge or waiver is
sought. Any such waiver shall constitute a waiver only with respect to the
specific matter described in such writing and shall in no way impair the
rights of the party granting such waiver in any other respect or at any
other time. The representations and warranties of the parties hereto shall
not be affected or deemed waived by reason of any investigation made by or
on behalf of any other party (including, but not limited to, by any of its
advisors, consultants or representatives) or by reason of the fact that such
other party or any such advisors, consultants or representatives knew or
should have known that any such representation or warranty is or might be
inaccurate.
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IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement by their authorized representatives as of the date first
above written.
RSL COM EUROPE, LTD.
By:
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Name:
Title:
METRO HOLDING AG
By:
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Name:
Title:
