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EXHIBIT 8
COMMERCIAL SERVICES AGREEMENT
This COMMERCIAL SERVICES AGREEMENT is entered into on this 8th day of
March, 2000, by and among NORTHPOINT COMMUNICATIONS GROUP, INC., a Delaware
corporation ("NorthPoint"), VERSATEL TELECOM INTERNATIONAL N.V., a Netherlands
company ("Versatel"), and VERSAPOINT N.V. I.O., a Netherlands company in
incorporation (each, a "Party" and collectively, the "Parties").
RECITALS
WHEREAS, NorthPoint and Versatel entered into that certain Shareholders
Agreement dated March 8, 2000, which provides, among other things, for
investment by NorthPoint and Versatel in VersaPoint, a Netherlands public
company with limited liability;
WHEREAS, Versatel, through its status as a competitive local exchange
carrier ("CLEC"), has entered into agreements with incumbent local exchange
carriers ("PTTs") in the Netherlands and Germany for the acquisition of
collocation space in PTT facilities and the ordering and provisioning of
unbundled PTT loops;
WHEREAS, Versatel provides telecommunications services, including
transport services and has expertise in interfacing with European
telecommunications regulatory authorities;
WHEREAS, NorthPoint has expertise in engineering digital subscriber line
("DSL") infrastructure and operational processes and in marketing and selling
DSL services; and
WHEREAS, Versatel and NorthPoint have agreed to provide VersaPoint with
the necessary telecommunications infrastructure and management assistance and
expertise described herein to deploy facilities-based DSL services throughout
Europe.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants contained herein,
the Parties hereby agree as follows:
1. DIGITAL LOOPS, COLLOCATION AND TRANSPORT
1.1. UNBUNDLED LOOP ORDERING. Versatel will provide to VersaPoint, through a
license, sublicense, transfer or assignment or other means as appropriate
under the circumstances, the proprietary PTT order entry systems,
Technology (as defined below in 2.1), user ID and login passwords, as
well as any other technology and information that is necessary for
VersaPoint to order unbundled digital loops from the applicable PTT as a
representative of Versatel.
1.2. LOOPS. In cases where Versatel wants to offer non-DSL-services over
unbundled loops, and subject to regulatory and contractual restrictions,
VersaPoint will order these loops on behalf of Versatel. Versatel and
VersaPoint will agree on a process to hand over these loops to Versatel
in order to ensure a smooth service delivery by Versatel.
1.3. MDF'S. Schedule A hereto sets forth (i) all of the PTT central offices
("COs") in which Versatel or its subsidiaries is currently leasing space
from an PTT, and the number and size of cages available in each listed CO
available for VersaPoint's use, and (ii) the number of racks in such
cages available for VersaPoint's use (or the amount of space for racks,
if VersaPoint needs to build the racks itself). Such racks (or space)
shall be dedicated to the use of VersaPoint for the duration of the term
of this Agreement.
1.4. TRANSPORT AND TRANSMISSION SERVICES. VersaTel shall make transport and
transmission services over its network available to VersaPoint on terms
at least as favorable as the most favorable terms offered to any
third-party customers. VersaPoint will have the obligation to use
VersaTel's transport and transmission services wherever possible,
provided such transport and transmission services are competitive in
price, quality, and delivery time.
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1.5. COLOCATION AND DATA CENTERS. VersaTel shall make colocation and/or data
centers available to VersaPoint on terms at least as favorable as the
most favorable terms offered to any third-party customers.VersaPoint will
have the obligation to use VersaTel's colocation and/or data centers
wherever possible, provided such colocation and/or data centers are
competitive in price, quality, and delivery time.
2. DSL EQUIPMENT AND TECHNOLOGY.
2.1. TECHNOLOGY. NorthPoint shall provide VersaPoint with the technology
listed on Schedule B. For purposes of this Agreement, "Technology" means
any hardware, software, middleware, trade secrets, know-how and other
intellectual property, including application software and source code,
used to plan, engineer, implement and provide DSL services including
either Party's own systems (including any upgrades) relating to: order or
geographical pre-qualification, order placement, entry/order management,
network management, alarm surveillance, traffic management, testing,
service activation, IP address administration, supplier/buyer order
interfaces, security, facility management, trouble ticketing and billing.
3. VENDOR CONTRACTS
3.1. VERSATEL. Versatel shall make commercially reasonable efforts to make
the benefit of its agreements with third party vendors, contractors and
PTTs available to VersaPoint on an affiliate basis, subject to
VersaPoint's agreement to the terms of such contracts.
3.2. NORTHPOINT. NorthPoint shall make commercially reasonable efforts to
make the benefit of its agreements with third party vendors and
contractors available to VersaPoint on an affiliate basis, subject to
VersaPoint's agreement to the terms of such contracts.
4. PERSONNEL SERVICES; SECONDMENT. The Parties agree that each of Versatel
and NorthPoint shall assist VersaPoint as set forth herein primarily
utilizing consulting services provided through their respective
companies. Organization of personnel shall primarily be done in
accordance with the AOPB (paragraph 10). Secondment of Versatel Employees
and NorthPoint Employees shall be provided only as agreed to hereunder.
4.1. SECONDMENT OF EMPLOYEES BY VERSATEL.
4.1.1 Versatel shall second to VersaPoint -- and shall make best efforts to do
so by March 31, 2000 -- an interim Chief Operating Officer, interim Chief
Financial Officer, interim Human Resources Director, interim Regulatory
Director, as well as a minimum of fifteen other employees, such
obligation to extend for a maximum period of 12 months. All Versatel
Employees seconded to VersaPoint shall remain employees of Versatel and
render services exclusively to VersaPoint during the term of their
secondment.
4.1.2 VersaPoint shall offer each Versatel Employee an initial assignment with
duties and responsibilities substantially comparable to such employee's
assignment with Versatel, or as otherwise acceptable to such employee.
4.1.3 Each Versatel Employee's secondment to VersaPoint shall be terminable at
will by VersaPoint, without prejudice to Versatel's obligations pursuant
to 4.1.1. Termination of such employee's secondment to VersaPoint only
serves to end the secondment, and does not terminate such employee's
employment with Versatel.
4.1.4 VersaPoint may require Versatel Employees to sign and comply with
appropriate agreements assigning inventions and other Proprietary
Information (as defined in the Shareholders Agreement) to VersaPoint and
otherwise protecting the Proprietary Information of VersaPoint, without
altering in any way the obligations such employee has to protect the
Proprietary Information of Versatel.
4.1.5 VersaPoint shall reimburse Versatel for the Versatel Employees at the
same base salary paid to such employee as of his or her assignment date
to VersaPoint. Versatel Employees will continue to be paid their
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salaries through the regular Versatel payroll, and Versatel will xxxx VersaPoint
for such salaries and other costs referred to in 4.5 on a monthly basis, to be
paid in Dutch funds.
4.1.6 Versatel Employees may remain at VersaPoint (subject to termination at
will).
4.2. SECONDMENT OF EMPLOYEES BY NORTHPOINT.
4.2.1 NorthPoint shall second to VersaPoint -- and shall make best efforts to
do so by March 31, 2000 -- an interim Chief Executive Officer, interim
Chief Information Officer, as well as an interim Technical Director and
an interim Commercial Director as well as a minimum of fifteen other
employees, such obligation to extend for a maximum period of 12 months.
All NorthPoint Employees seconded to VersaPoint shall remain employees of
NorthPoint and render services exclusively to VersaPoint during the term
of their secondment.
4.2.2 VersaPoint shall offer each NorthPoint Employee an initial assignment
with duties and responsibilities substantially comparable to such
employee's assignment with NorthPoint, or as otherwise acceptable to such
employee.
4.2.3 Each NorthPoint Employee's secondment to VersaPoint shall be terminable
at will by VersaPoint without prejudice to NorthPoint's obligations
pursuant to 4.2.1. Termination of such employee's secondment to
VersaPoint only serves to end the secondment, and does not terminate such
employee's employment with NorthPoint.
4.2.4 VersaPoint may require NorthPoint Employees to sign and comply with
appropriate agreements assigning inventions and other Proprietary
Information (as defined in the Shareholders Agreement) to VersaPoint and
otherwise protecting the Proprietary Information of VersaPoint, without
altering in any way the obligations such employee has to protect the
Proprietary Information of NorthPoint.
4.2.5 VersaPoint shall reimburse NorthPoint for the NorthPoint Employees at the
same base salary paid to such employee as of his or her assignment date
to VersaPoint. NorthPoint Employees will continue to be paid their
salaries through the regular NorthPoint payroll, and NorthPoint will xxxx
VersaPoint for such salaries and other costs referred to in 4.5 on a
monthly basis, to be paid in Dutch funds.
4.2.6 NorthPoint Employees may remain at VersaPoint (subject to termination at
will).
4.3. APPLICABLE EMPLOYMENT POLICIES AND PROCEDURES. During secondment to
VersaPoint, each Versatel Employee and NorthPoint Employee (collectively,
"Employees") shall be bound by, and treated in accordance with, the
applicable rules, policies, procedures, regulations and reporting
structure established by VersaPoint, unless otherwise agreed in writing
by VersaPoint and Versatel or NorthPoint, as applicable. If VersaPoint
determines that an Employee seconded to VersaPoint is not performing
satisfactorily or has materially violated any such rules, policies,
procedures or regulations, VersaPoint may take appropriate measures,
including the termination and replacement, subject to the period of the
secondment obligations as set forth in 4.1.1 and 4.2.1, of such Employee.
4.4. CONTINUATION OF EMPLOYEE BENEFITS. Employees seconded to VersaPoint
shall continue to remain eligible for and participate in all Versatel or
NorthPoint (as applicable) employee benefit plans, retirement plans,
incentive plans and arrangements, fringe benefits and all other benefits
provided by Versatel or NorthPoint US, as applicable. Accordingly,
Employees shall not be eligible for or participate in any employee
benefit plans, retirement plans, incentive plans or arrangements, fringe
benefits or any other benefits provided by VersaPoint to its employees.
4.5. FEES FOR SERVICES BY EMPLOYEES. VersaPoint shall pay each of Versatel
and NorthPoint for services rendered by Employees to VersaPoint in
amounts sufficient to reimburse Versatel and NorthPoint, as applicable,
for: gross salaries, employer-paid taxes and assessments, benefit plans,
retirement plans, incentive plans and arrangements, fringe benefits and
all other benefits previously disclosed to VersaPoint or generally
applicable to Employees of Versatel or NorthPoint as the case may be, to
the extent that Employees are participants or otherwise entitled thereto
under their employment contract with Versatel or NorthPoint as the case
may be, foreign service allowances, if any, additional travel expenses,
relocation
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costs and housing allowances to the extent that Employees are offered such
compensation by VersaPoint in view of their secondment, except for
benefits under equity-based compensation plans including the Versatel
Employee Stock Option Plan, the NorthPoint US 1999 Employee Stock Purchase
Plan, the NorthPoint US 1999 Stock Plan and the NorthPoint US 1997 Stock
Option Plan. Each of Versatel and NorthPoint shall invoice VersaPoint
monthly for the fees set forth in this Section 4.5.
4.6. BENEFITS AND PAYMENTS REQUIRED BY LAW.
4.6.1 VersaPoint shall obtain and maintain at its expense and for the benefit of
Employees all employment-related insurance required by law, including
without limitation workers' compensation and unemployment compensation
coverage, and shall timely pay all employment-related taxes, social
premiums and assessments to the extent required by law.
4.6.2 VersaPoint shall comply with all national, provincial and local employment
laws with regard to its employment of Employees.
4.7. DISAVOWAL OF REPRESENTATION. Unless specifically so empowered in
writing, no Employee while seconded shall serve in any manner as, or be
deemed to be, the agent or legal representative of NorthPoint in the case
of a NorthPoint Employee, or of Versatel in the case of a Versatel
Employee, or any affiliate of NorthPoint or Versatel other than
VersaPoint.
4.8. DISCLAIMER OF WARRANTY; INDEMNIFICATION. No guarantee or warranty of any
nature is extended by Versatel or NorthPoint with respect to the
management, technical or other services to be furnished to VersaPoint by
any Employee hereunder. VersaPoint shall hold each of Versatel, its
affiliates and Employees and NorthPoint, its affiliates and Employees
harmless from and against any and all third party claims and liabilities
of any kind whatsoever arising out of or allegedly resulting from the
furnishing of any services hereunder.
5. PROPRIETARY INFORMATION.
5.1. Proprietary Information developed by (employees of) VersaPoint will be
owned by VersaPoint, even it the underlying Proprietary Information was
contributed by one of the Parties Each of the Shareholders shall have the
right to use the Proprietary Information developed by VersaPoint, subject
to a licence agreement and payment of a licence on market terms to
VersaPoint and, if the underlying Proprietary Information was contributed
by another Party, to such Party.
5.2. Each of the Parties herewith grants VersaPoint a perpetual licence to the
use of the Proprietary Information provided by it to VersaPoint pursuant
to the Commercial Services Agreement. As soon as a Party no longer holds
any Shares, VersaPoint shall enter into a licence agreement on market
terms, pursuant to which VersaPoint shall pay a royalty for the use of the
Proprietary Information contributed by such Party.
5.3. VersaTel herewith grants VersaPoint a royalty free licence to the use of
"Versa" as part of its corporate name. The licence shall automatically
terminate as soon as VersaTel no longer holds any Shares. Upon termination
of the licence, VersaPoint shall immediately cease the use of "Versa" as a
trade name or otherwise and shall immediately take all action necessary to
amend its corporate name so that it no longer includes "Versa" or a
similar term.
6. BILLING.
6.1. Except as otherwise set forth herein or as otherwise mutually agreed by
the Parties, each of NorthPoint and Versatel will xxxx VersaPoint for all
fees for services, equipment and other charges contemplated by this
Agreement and the agreements referenced herein according to the terms of
this Section 5. Each of NorthPoint and Versatel will mail one or more
statements of accounts to VersaPoint on or about the first day of each
month for services, equipment and other charges incurred by VersaPoint in
the previous month. Any and all such statements of accounts shall be
payable by VersaPoint within thirty (30) days of receipt. If such
statements of accounts are not paid by VersaPoint on or prior to the due
date, late fees
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shall accrue and become immediately due and payable on the outstanding
unpaid balance at the rate of 1.5 percent per month.
6.2. In the event that a billing dispute occurs concerning any charges billed
to VersaPoint, VersaPoint must pay the undisputed portion of the invoice
in full and submit a documented claim for the disputed amount. VersaPoint
shall submit all documentation to NorthPoint or Versatel as may reasonably
be required to support the claim. All claims must be submitted to
NorthPoint or Versatel within sixty (60) days of receipt of an invoice for
the disputed charges. If VersaPoint does not submit a claim as stated
above, VersaPoint waives all rights to filing a claim thereafter. Unless
disputed, the invoice shall be deemed to be correct and payable in full by
VersaPoint. No interest or penalties will be due with respect to the
amount withheld by VersaPoint only if and to the extent the dispute is
resolved in favour of VersaPoint.
7. TERM AND TERMINATION.
7.1. TERM. The initial term of this Agreement (the "Term") shall be for ten
(10) years from the date hereof. Thereafter, this Agreement shall
automatically renew for successive one-year periods unless a Party
notifies the other Parties in writing at least sixty (60) days prior to
the end of the Term, or any subsequent year in which this Agreement
remains in effect, that it intends to terminate this Agreement.
Termination of this Agreement by one Party shall not act to terminate
this Agreement as it relates to the remaining Parties.
7.2. TERMINATION. This Agreement may be terminated:
7.2.1 By a non-breaching Party if another Party commits a material breach of
this Agreement that materially adversely affects VersaPoint's business,
financial condition or operations, and such breach is not cured within
ninety (90) days of notice of breach;
7.2.2 By mutual written agreement of all Parties hereto;
7.2.3 By a Party upon such Party ceasing to be a Shareholder (as defined in the
Shareholders Agreement)
7.3. COOPERATION. If any Party terminates this Agreement, then such
terminating Party shall continue to provide all commercially reasonable
assistance required to maintain VersaPoint's DSL services without
disruption, and such cooperation shall continue under the terms of this
Agreement for a minimum of three (3) years after the date of termination.
7.4. EFFECT OF TERMINATION. If this Agreement is terminated as permitted by
Section 6.2, such termination shall be without liability for any Party
(or any partner, stockholder, director, officer, employee, agent,
consultant or representative of such Party) to any other Party to this
Agreement, provided that if such termination results from a material
breach of this Agreement, such breaching Party shall be fully liable for
any and all Losses incurred or suffered by the other Party(ies) as a
result of such breach. "Losses" means any losses, damages, liabilities,
costs and expenses, including, without limitation, reasonable attorneys'
fees and expenses, arising out of a material breach of this Agreement.
7.5. SURVIVAL. The terms and provisions contained in this Agreement that by
their sense and context are intended to survive the performance thereof
by the parties hereto shall survive the completion of performance and
termination of this Agreement, including, without limitation, the making
of any and all payments due hereunder.
8. MISCELLANEOUS.
SUBSIDIARIES. The obligations of each of the Parties hereto may be
satisfied by a subsidiary of such Party, provided that such Party shall ensure
that (i) its subsidiary is bound by and performs the obligations pursuant hereto
and (ii) such Party guarantees the proper performance by such Subsidiary of its
obligations pursuant hereto.
FORCE MAJEURE. No Party shall be responsible for any failure to perform
any obligation or provide service hereunder to the extent such failure is caused
by any (i) act of God, (ii) war, riot or civil commotion,
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(iii) governmental acts or directives, strikes, work stoppage, or equipment or
facilities shortages experienced by providers of telecommunications services
generally and not targeted or directed at a Party specifically, or (iv) other
similar force beyond such Party's reasonable control.
AUDIT RIGHT. Each Party shall accurately keep all usual and proper books
of account and records and all usual and proper entries and other documentation
relating to the charges by one Party to any other Party. No more frequently than
once annually during the Term, including as extended or renegotiated, and during
the twelve (12)-month period immediately following the end of the Term, whether
by natural expiration or termination, each Party shall have the right to cause
an audit and inspection to be made of such books and records, entries and
documentation of another Party as they relate to such Party's invoicing of the
auditing Party for services provided pursuant to this Agreement, and any
supporting documentation thereof, to determine whether such Party has accurately
complied with its obligations under this Agreement. Such audit shall be
conducted by an independent, third party auditor from a reputable,
nationally-recognized accounting firm, selected by mutual agreement of the
auditing and audited Parties. All information disclosed and/or provided to such
auditor in connection with such audit will be subject to an appropriate prior
written confidentiality agreement. The auditor shall keep confidential the
identity and the specific terms of any agreements of all other VersaPoint
customers. Any such audit shall be conducted, to the extent possible, in a
manner that does not interfere with the ordinary business operations of the
audited Party. Any such audit shall be paid for by the auditing Party un less
material discrepancies are disclosed in the auditor's report. "Material" shall
mean a five percent (5%) or greater discrepancy in the reported charges. If
material discrepancies are disclosed, the audited Party shall pay for the costs
associated with the audit, in addition to the amount of the discrepancy paid by
the audited Party.
APPLICABILITY OF CERTAIN ARTICLES SHAREHOLDERS AGREEMENT. Articles 14,
15, 17, 18 and 19 of the Shareholders Agreement shall be equally applicable to
this Commercial Services Agreement and such articles shall be considered to be
incorporated herein by reference.
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IN WITNESS WHEREOF, the parties hereto have executed this Commercial
Services Agreement as of the date set forth in the first paragraph hereof.
NORTHPOINT COMMUNICATIONS GROUP, INC.
By: Bloestein
----------------------------------------------------
Name: Xxxxxx Bloestein
Title: Chief Development Officer
VERSATEL TELECOM INTERNATIONAL, N.V.
By: Raimatha
----------------------------------------------------
Name: Raj Raimatha
Title: CFO
VERSAPOINT N.V. I.O.
By: Raimatha
----------------------------------------------------
Name: Raj Raimatha
Title: CFO
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SCHEDULE A: COLO'S TO BE TRANSFERRED TO JV.
NETHERLANDS:
------------
Rotterdam: Middelwatering
Centre
Terbregge
Utrecht: Centre
Amsterdam: Centre
East
West
Amstelveen
Bijlmermeer
Diemen
Slotervaart
Sloterdijk
Buitenveldert
Zuid (ordered and
agreed but issuing
delayed by KPN)
Zaandam: Centre
GERMANY:
--------
Neuheim
Husten
Sundern
Arnsberg
Bo: Dorstener Strasse
Hustadring
Marderweg
Wallburgstrasse
Marktstrasse
Stiepeler Strasse
Hermanweg
Xxxxx-Xxxxxx-Xxxxx
Bruchspitze
Schwerte: Kantstrasse
Garbepfad
Holzenerweg
Recklinghausen: Am Steiter
Grulibadstrasse
Dortmund: West
Sud
Ost
Xxxxx
Korne
Horde
Brakel
Eichlinghofen
Dortsfeld
Nord
Gelsenkirchen: Mitte
B1:
Herne: Mitte
Holsterhausen
Wanne Eickel
Wanne
Broken:
Fair market value agreed by partners to be 15 million Euro for total Netherlands
and German Colo's.
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AMENDMENT TO THE ARTICLES OF ASSOCIATION
EB/EL/687657/5432.STE 22-12-99 2
On this day, the twenty-second of December nineteen hundred and ninety-nine,
appeared before me, Johannes Henderikus Xxxxx Xxxxxxx, civil law notary in
Amsterdam:
Xxxxxxx Katrien Xxxxxxxxx Xxxxxx, care of Stibbe Simont Xxxxxxx Duhot, 1077 ZZ
Xxxxxxxxx, Xxxxxxxxxxxxxx 0000, born in Eindhoven on the eighth day of April
nineteen hundred and seventy.
The appearing person declared:
- that of the listed public company: VersaTel Telecom International N.V.,
with official seat in Amsterdam, having its office at Xxxxxxxxxxx 00,
0000 XX Xxxxxxxxx, and registered with the Trade Register under number
33.272606, the articles of association were last amended by deed
executed on the twenty-third day of July nineteen hundred and
ninety-nine before J.H.M. Carlier, civil law notary in Amsterdam, in
respect of which amendment the Minister of Justice on the twenty-second
day of July nineteen hundred and ninety-nine under number N.V. 538.638
has advised that no objections have been apparent;
- that the general meeting of shareholders of the company resolved to
amend the articles of association of the company partially;
- that furthermore a decision was made to authorize the appearing person
to execute the deed of amendment to the articles of association;
- that the resolutions mentioned above are evidenced by a copy of the
minutes of the meeting mentioned above which copy has been annexed to
this deed.
Consequently the appearing person declared that the articles of association of
the company are hereby amended as follows:
Article 4 paragraph 1 will read as follows:
4. 1. The authorized capital of the company amounts to eighteen million five
hundred thousand Dutch Guilders five Cents (NLG 18,500,000.05) and is
divided into:
- one hundred seventy-five million (175,000,000) ordinary shares;
- twenty million (20,000,000) preference-A shares;
- one hundred seventy-five million (175,000,000) preference-B shares, and
- one (1) priority share,
each share having a nominal value of five Dutch Cents (NLG 0.05).
The final provision will be replaced by a new final provisions, which will read
as follows:
Until the day that since the present amendment to the articles of
association two years have passed, the board of management under prior approval
of the supervisory board is entitled to issue both the ordinary shares as well
as the preference shares A and B and to grant rights to subscribe for both
ordinary and preference shares A and B, to a maximum as defined in article 4
paragraph 1 of the articles, as well as to restrict or exclude with respect to
an issue of ordinary shares or the granting of rights to subscribe for ordinary
shares the pre-emptive right of holders of ordinary shares.
Finally the appearing person declared:
- that the current issued capital amounts to three million eight hundred
eight thousand seven hundred forty-nine Dutch Guilders thirty Dutch
Cents (NLG 3,808,749.30);
- that on the twentieth day of December nineteen hundred and ninety-nine
under number N.V. 538.638 the Minister of Justice has -- according to
the certificate attached to this deed -- advised that no objections to
the present amendment to the articles of association have been
apparent.
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This deed was executed today in Amsterdam.
The substance of this deed was stated and explained to the appearing
person. The appearing person declared not to require a full reading of the deed,
to have taken note of the contents of this deed and to consent to it.
Subsequently, this deed was read out in a limited form, and immediately
thereafter signed by the appearing person and myself, civil-law notary, at ten
hours fifty minutes ante meridiem.
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