ACQUISITION ASSISTANCE AGREEMENT
This is an agreement (this "Agreement"), dated as of December
1, 1994, among Copex Limited, a United Kingdom company ("Copex"),
Copex Limited, a Swiss company("Copex (Swiss)"), Dataguard Limited,
a Kentucky, U.S.A. corporation, and Dataguard Recovery Services,
Inc., a Kentucky U.S.A. corporation ("Dataguard").
Background
A. Dataguard Limited and Copex (Swiss) are parties to an
agreement dated as of July 18, 1994 (the "Promotion Agreement"),
pursuant to which Copex (Swiss) agreed, among other things, to
promote the sale of Dataguard's services in the territory defined
in the Promotion Agreement in consideration of the payment of
certain commissions.
B. Dataguard, with the assistance of Copex, is submitting a
bid in an insolvency proceeding (the "Proceeding") to purchase,
through a wholly-owned subsidiary to be formed ("Twinsys-Dataguard"), certain
portions of the business of Twinsys, S.A. ("Twinsys"). Should Dataguard
succeed in purchasing this business, the Promotion Agreement will be obsolete.
C. Copex wishes to assist Twinsys-Dataguard in (i)
renegotiating the terms of the leases by which Twinsys currently
leases equipment (the "Twinsys Equipment Leases") and (ii)
introducing Twinsys-Dataguard to prospective new customers.
D. The purpose of this Agreement is to (i) memorialize the
agreement between Dataguard and Copex concerning the amounts to be
paid to Copex as compensation for introducing Dataguard to, and
assisting Dataguard in, the acquisition of the Twinsys business and
for the services to be performed by Copex as outlined in paragraph
C. above, and (ii) terminate the Promotion Agreement.
Agreement
Section 1
Provisions Contingent on the
Acquisition of the Twinsys Business
If and only if Dataguard, directly or through Twinsys-Dataguard or
another subsidiary, acquires (the "Acquisition") the Twinsys business in
the Proceeding:
1.01 Compensation to Copex. Dataguard shall pay to Copex 2%
of the gross revenues of Twinsys-Dataguard for the calendar years
1995 through 1999 (the "Copex Consideration"). Payment for each
calendar quarter shall be made within 30 days after the end of that
calendar quarter.
1.02 Equipment Lease Negotiations. Copex shall promptly
assist Twinsys-Dataguard in renegotiating the Twinsys Equipment
Leases on terms most favorable to Twinsys-Dataguard as can be
reasonably obtained. If any of the Twinsys Equipment Leases cannot
be appropriately renegotiated, Copex shall obtain replacement
equipment and use its best efforts to obtain a replacement lessor
with lease terms as beneficial to Twinsys-Dataguard as can
reasonably be obtained . Copex shall, in negotiating the leases,
use its best efforts to obtain the following terms (the "Projected
Terms"):
* The aggregate amount to be paid over the life of all
of the leases shall range between 15 million and 20 million French
francs;
* The term of each of the leases shall be at least 36
months with no payments due during or with respect to at least the
first 3 to 6 months and level payments during and with respect to
each of the remaining months;
* The equipment to be leased shall not include the
equipment presently located at the Cergy location of Twinsys but
shall include all of the equipment presently located at Twinsys'
Tour Mirabeau location. The Equipment shall also include all
equipment currently required under existing Twinsys agreements with
its customers including, without limitation, an additional CMM 8501
(128 Mb memory module for the DPS 9000); and
* Such other terms as are customarily included in
equipment leases for this sort of equipment in France.
1.03 Termination of Promotion Agreement. The Promotion
Agreement shall immediately be terminated and of no further force
or effect and neither Copex (Swiss), Copex, Dataguard nor Dataguard
Limited shall have any liability to any of the others on account of
the Promotion Agreement; provided, that Section 4.03 of the
Promotion Agreement shall remain in full force and effect
notwithstanding the termination of the rest of the Promotion
Agreement and shall be enforceable by Dataguard or Dataguard
Limited against both Copex and Copex (Swiss).
1.04 Promotion of Twinsys-Dataguard Services. Copex shall
during the 3-year period immediately following the Acquisition (the
"Promotion Term") use its best efforts to promote the Twinsys-Dataguard
services including but not limited to, introducing prospective customers
to Twinsys-Dataguard. Copex shall carefully coordinate with Twinsys-
Dataguard all of its activities in promoting Twinsys-Dataguard.
Twinsys-Dataguard shall reimburse Copex for all reasonable expenses
incurred by Copex in promotion of Twinsys-Dataguard services provided
they have been approved in advance by Twinsys-Dataguard. The length of
the Promotion Term may be extended by agreement between Dataguard and Copex.
1.05 Commissions. Dataguard, as the sole compensation to
Copex for Copex's services provided under Section 1.04 of this
Agreement, shall pay to Copex the percentage set forth below of all
Fees (as defined below) accrued and received by Twinsys-Dataguard
with respect to customers ("Copex Referred Customers") who, as of
both the date of this Agreement and as of the date Copex introduces
the customer to Twinsys-Dataguard, are neither customers of Twinsys
or Twinsys-Dataguard nor are they considered by either Twinsys or
Twinsys-Dataguard as active prospects.
Fees received under the initial term of first Fees received
contract with respect to a Copex Referred Customer under subsequent
terms of the
First year of initial term Subsequent years of first con-
of first contract with initial term of first tract with
respect to the Copex contract with respect to respect to a
Referred Customers the Copex Referred Copex Referred
Customer Customer and
all other
If first If first If first If first contracts
contract contract contract contract with respect
entered entered on entered entered on to that Copex
prior to or after prior to or after Referred
July 1, 1995 July 1, 1995 July 1, 1995 July 1, 1995 Customer
Copex will receive 20% 15% 10% 7.5% 7.5%
the following
percentage of Fees
actually collected
by Twinsys-Dataguard
during the Promotion
Term
Copex will receive 20% 10% 15% 7.5% 0%
the following
percentage of Fees
actually collected
by Twinsys-Dataguard after
the Promotion Term
For purposes of this Agreement, the term "Fees" shall mean the
consulting fees and ordinary and recurring payments accrued and
received from Twinsys-Dataguard's Copex Referred Customers with
respect to the provision of hot site and cold site services;
provided, however, the term "Fees" does not include any payment by
Copex Referred Customers for reimbursement of expenses or taxes or
similar payments, or the payment of extraordinary amounts such as
disaster notification fees, usage fees, excess testing fees, and
other similar extraordinary and nonrecurring amounts. Dataguard
shall have no liability to pay any amounts to Copex except with
respect to Fees actually accrued and received and collected by
Twinsys-Dataguard.
Section 2
Non-Compete
2.01 Covenant of Copex. During calendar years 1995 through
1999 (the years with respect to which the Copex Consideration is to
be paid) (the "Term") and for two years thereafter, Copex shall
not, and shall cause those individuals who are now or hereafter
become executive officers or holders of 10% or more of any class of
equity securities of Copex, not to engage directly or indirectly in
any capacity whatsoever (including, without limitation, as an
owner, shareholder, director, officer, employee, partner, etc.) in
the promotion, sale, or provision of any services that compete with
the services to be provided by Twinsys-Dataguard.
2.02 Covenant of Dataguard. During the Term and for two
years thereafter, Dataguard shall not, and shall cause those
individuals who are now or hereafter become executive officers or
holders of 10% or more of any class of equity securities of
Dataguard, not to engage directly or indirectly in any capacity
whatsoever in the promotion, sale, or provision of computer
equipment and computer equipment leasing in Europe.
2.03 Confidentiality. In the course of promoting the
Twinsys-Dataguard, Copex may have access from time to time to
proprietary information of Twinsys-Dataguard and Dataguard,
including customer lists (including the list of those customers
generated under this Agreement by Copex), pricing, know-how, etc.
(the "Confidential Information"). Copex shall, and shall cause
each of its employees, agents, officers, subcontractors, and others
that has access to the Confidential Information to, maintain the
confidentiality of the Confidential Information and to use the
Confidential Information solely for the purposes set forth in this
Agreement.
Section 3
Indemnification
Dataguard and Copex (each an "Indemnifying Party") shall each
indemnify and hold harmless the other (and "Indemnified Party")
from and against, and shall pay to the Indemnified Party the full
amount of any loss, claim, damage, liability or expense (including
reasonable attorneys' fees) resulting to the Indemnified Party from
or in connection with any breach by the Indemnifying Party of this
Agreement.
Section 4
Miscellaneous
4.01 Notices. Any notices or other communications required
or permitted hereunder shall be deemed to have been duly given if
(a) delivered in person, or (b) if sent by certified mail, postage
and fees prepaid, to the party notified as follows:
If to Dataguard or Dataguard Limited:
Dataguard Limited
Dataguard Recovery Services, Inc.
00000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx, X.X.X. 00000
With a copy to:
Xxxxx X. Xxxxxxxxx
Xxxxx, Xxxx & Heyburn
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx, X.X.X. 00000-0000
If to Copex or Copex (Swiss):
Copex Limited
0, Xxx Xxxxxx
X-00000 Xxxxx
Xxxxx, Xxxxxx
4.02 Assignment and Subcontracting. Copex shall not
subcontract any of its obligations under this Agreement without the
prior written consent of Dataguard. Dataguard may withhold such
consent unless (i) Copex can establish to Dataguard's satisfaction
that the proposed subcontractor is financially stable and is
capable of performing any service that is proposed to be
subcontracted, and (ii) the proposed subcontractor contractually
obligates itself to Dataguard to comply with the terms of this
Agreement. Dataguard may, in its discretion, assign its
obligations under this Agreement to Twinsys-Dataguard. Upon such
an assignment and the assumption by Twinsys-Dataguard of
Dataguard's obligations hereunder, Dataguard shall have no further
obligations under this Agreement. Except as set forth above,
neither Dataguard nor Copex may assign this Agreement without the
prior written consent of the other. As used in this Agreement, (i)
subcontract means to have any individual or entity other than an
employer officer of Copex perform in whole or in part any of the
obligations of Copex hereunder, and (ii) subcontractor means any
individual or entity that is subcontracting.
4.03 Entire Agreement. This Agreement, including the
Exhibits hereto, contains the entire agreement, and supersedes any
and all prior or contemporaneous agreements, with respect to the
subject matter hereof. Any amendments to this Agreement shall be
of no effect unless set forth in writing and executed by both
parties.
4.04 Governing Law. The execution, interpretation, and
performance of this Agreement shall be governed by the laws of the
Commonwealth of Kentucky, U.S.A.
4.05 Expenses. Each party to this Agreement shall be
responsible for paying all expenses incurred by it in connection
with this Agreement and the acquisition the Twinsys business,
including the payment of all legal and accounting expenses incurred
at the request of that party; provided, that Dataguard shall pay or
reimburse Copex for up to $2,400 of the fees incurred by Copex's
lawyer in connection with the acquisition of the Twinsys business.
IN WITNESS WHEREOF, Dataguard, Dataguard Limited, Copex, and
Copex (Swiss) have each duly executed this Agreement as of the date
first written above.
DATAGUARD RECOVERY SERVICES, INC.
By /s/Xxxxxxx X. Xxxxx
Title: President
Date: 12/28/94
DATAGUARD LIMITED
By /s/ Xxxxxxx X. Xxxxx
Title: President
Date: 12/28/94
COPEX LIMITED (U.K.)
By /s/ F. Breuneval
Title: Director
Date: 27/12/94
COPEX LIMITED (SWISS)
By /s/ F. Breuneval
Title: Director
Date: 27/12/94
AMENDMENT TO
ACQUISITION ASSISTANCE AGREEMENT
This is an amendment (this "Amendment") dated as of January 6,
1995, to the agreement (the "Agreement"), dated as of December 1,
1994, among Copex Limited, a United Kingdom company ("Copex"),
Copex Limited, a Swiss company("Copex (Swiss)"), Dataguard Limited,
a Kentucky, U.S.A. corporation, and Dataguard Recovery Services,
Inc., a Kentucky U.S.A. corporation ("Dataguard"). Except as
hereby amended, the Agreement shall remain in full force and
effect. Capitalized terms used but not defined in this Amendment
shall have the meanings assigned them in the Agreement.
Sections 1.04 and 1.05 of the Agreement are hereby amended to
read as follows:
1.04 Promotion of Twinsys-Dataguard Services. Copex shall
during the 3-year period immediately following the Acquisition (the
"Promotion Term") use its best efforts to promote the Twinsys-Dataguard
services to data centers located in France, Germany, and Switzerland (the
"Territory"). Such efforts shall include, but not be limited to, introducing
prospective customers to Twinsys-Dataguard. Copex shall carefully coordinate
with Twinsys-Dataguard all of its activities in promoting Twinsys-Dataguard.
Twinsys-Dataguard shall reimburse Copex for all reasonable expenses incurred
by Copex in promotion of Twinsys-Dataguard services provided they have been
approved in advance by Twinsys-Dataguard. The length of the Promotion Term
may be extended by agreement between Dataguard and Copex.
1.05 Commissions. Dataguard, as the sole compensation to
Copex for Copex's services provided under Section 1.04 of this
Agreement, shall pay to Copex the percentage set forth below of all
Fees (as defined below) accrued and received by Twinsys-Dataguard
with respect to data centers located in the Territory operated by
customers ("Copex Referred Customers") who, as of both the date of
this Agreement and as of the date Copex introduces the customer to
Twinsys-Dataguard, are neither customers of Twinsys or Twinsys-Dataguard
nor are they considered by either Twinsys or Twinsys-Dataguard as active
prospects. For purposes of this Agreement, the term "Fees" shall mean
the consulting fees and ordinary and recurring payments accrued and
received from Twinsys-Dataguard's Copex Referred Customers with respect
to the provision of hot site and cold site services; provided, however,
the term "Fees" does not include any payment by Copex Referred Customers
for reimbursement of expenses or taxes or similar payments, or the payment
of extraordinary amounts such as disaster notification fees, usage
fees, excess testing fees, and other similar extraordinary and
nonrecurring amounts. Dataguard shall have no liability to pay any
amounts to Copex except with respect to Fees actually accrued and
received and collected by Twinsys-Dataguard.
Fees received under the initial term of first Fees received
contract with respect to a Copex Referred Customer under subsequent
terms of the
First year of initial term Subsequent years of first con-
of first contract with initial term of first tract with
respect to the Copex contract with respect to respect to a
Referred Customers the Copex Referred Copex Referred
Customer Customer and
all other
If first If first If first If first contracts
contract contract contract contract with respect
entered entered on entered entered on to that Copex
prior to or after prior to or after Referred
July 1, 1995 July 1, 1995 July 1, 1995 July 1, 1995 Customer
Copex will receive 20% 15% 10% 7.5% 7.5%
the following
percentage of Fees
actually accrued
and collected by
Twinsys-Dataguard
during the Promotion
Term
Copex will receive 20% 10% 15% 7.5% 0%
the following
percentage of Fees
actually accrued
and collected by
Twinsys-Dataguard
after the
Promotion Term
IN WITNESS WHEREOF, Dataguard, Dataguard Limited, Copex, and
Copex (Swiss) have each duly executed this Amendment as of the date
first written above.
DATAGUARD RECOVERY SERVICES,
INC.
By /s/ Xxxxxxx X. Xxxxx
Title: President
Date: 1/7/95
DATAGUARD LIMITED
By /s/ Xxxxxxx X. Xxxxx
Title: President
Date: 1/7/95
COPEX LIMITED (U.K.)
By /s/ F. Breuneval
Title: Director
Date: 07/01/95
COPEX LIMITED (SWISS)
By /s/ F. Breuneval
Title: Director
Date: 07/01/95
