EXHIBIT 10.22
Private & Confidential
DATED February 28, 1997
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CASTLE TRANSMISSION SERVICES LTD. (1)
and
CASTLE TOWER HOLDING CORP. (2)
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SERVICES AGREEMENT
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Xxxxxx Xxxx
London
THIS SERVICES AGREEMENT is dated 28th day of February 1997 and is made BETWEEN:
(1) CASTLE TRANSMISSION SERVICES LTD. (No. 3196207) whose registered office is
at Warwick Xxxxxxxxxx Xxxx, Xxxxxxxxx Xxxx, Xxxxxxx XX00 0XX ("the
Company")
(2) CASTLE TOWER HOLDING CORP. of 000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx
XX 00000 ("the Contractor").
WHEREAS:
(A) This Agreement sets out the terms on which the Contractor has agreed to
provide certain services to the Company.
(B) Without limiting the rights of the Company under this Agreement, it is the
current intention of the parties hereto that this Agreement shall continue
for a period of five years which period shall begin on the Commencement
Date.
NOW IT IS HEREBY AGREED AS FOLLOWS:
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1 Definitions
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In this Agreement, unless the contract otherwise requires:
"Agreement" means this agreement including all its appendices;
"Commencement Date" means 28 February 1997
"Contract Year" means the period of 12 months commencing on the
Commencement Date and each successive period of 12
months thereafter;
"Contractor Default" means any material or persistent breach or
persistent non-performance by the Contractor of the
terms on which the Contractor is to provide the
services pursuant to the provisions of this
Agreement which, if capable of remedy, is not
remedied 45 days after receiving written notice from
the Company requiring the Contractor so to do;
"Contractor's Materials" means any property of the Contractor (other than the
New Material) including without limitation any know
how, materials, products and methodologies
proprietary to the Contractor;
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"Group" means, in relation to a company, its subsidiaries,
holding companies and any subsidiaries of any such
holding companies ("holding companies" and
"subsidiary" having ascribed thereto the meanings
respectively attributed to them by section 736
Companies Act 1985 (as amended));
"Initial Period" means the period commencing on the Commencement Date
and ending on the second anniversary thereof;
"Material Default" means, in relation to a party to this Agreement,
that:
(i) it becomes unlawful for that party to
perform its obligations pursuant to and in
accordance with the provisions of this
Agreement;
(ii) that party takes any action or legal
proceedings are commenced for a general
reconstruction or rescheduling of its debts
(or its equivalent in the jurisdiction of
incorporation of that party) or for its
winding up or dissolution;
(iii) a liquidator, receiver or an administrative
receiver or similar is appointed over the
assets of or a petition is granted for an
administration order (or its equivalent in
the jurisdiction and incorporation of that
party) in respect of that party;
"New Material" means any works and materials to the extent created,
developed, written or prepared by the Contractor
solely in relation to the Services;
"Services" means services falling within the scope of the
categories of services listed in the schedule to this
Agreement;
"Yearly Fee" means the sum of (Pounds)240,000 (subject to
adjustment for the fourth and subsequent Contract
Years by agreement between the parties) to be paid
by the Company to the Contractor in respect of
Services provided in the relevant Contract Year.
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2 Appointment
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2.1 The Contractor agrees to provide the Services to the Company as may
reasonably be required by the Company from time to time.
2.2 Without limiting the generality of clause 2.1, the parties acknowledge
that the Company may request the Contractor to provide services relating
to training and research and development as described in part B of the
schedule to this Agreement on a contract basis on commercial arm's length
terms and conditions (including as to fees) to be separately agreed and
the parties shall negotiate in good faith with a view to agreeing such
terms and conditions as soon as practicable after the date of such request
by the Company. For the avoidance of doubt, the fees for such services
shall be in addition to the Yearly Fee.
3 Fees and expenses
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3.1 In consideration of the agreement of the Contractor to provide the
Services, the Company shall (subject to clause 5.1) pay to the Contractor
the Yearly Fee (together with value added tax thereon, if applicable).
3.2 The Company agrees to reimburse the Contractor for all reasonable out-of-
pocket expenses (together with any value added tax thereon) incurred by it
or its employees in connection with the provision of the Services and any
additional services to be provided pursuant to clause 2.2. Such out-of-
pocket expenses shall be payable by the Company within 30 days after
receipt by the Company of the Contractor's invoice in respect of the same.
3.3 The Yearly Fee shall be payable in such manner and at such times as the
parties may agree and, in the absence of agreement, shall be paid in 12
equal instalments monthly in arrears.
3.4 Any instalment of the Yearly Fee and any amount in respect of the
Contractor's reasonable out-of-pocket expenses which is not paid on its due
date shall bear interest at 2 per cent. per annum above the base rate of
Barclays Bank PLC from time to time from the due date for payment until
payment is actually made.
3.5 If this Agreement shall, in accordance with its terms, terminate other than
on the last day of a Contract Year, the Yearly Fee payable in respect of
that year shall be apportioned on a time apportionment basis.
4 Other Obligations
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4.1 The Contractor shall provide the Services using reasonable skill and care
and reasonably promptly and to a standard which might reasonably be
expected of a
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person providing services of the type which the Contractor is obliged to
provide pursuant to the provisions of this Agreement.
4.2 The Company and the Contractor shall liaise together with a view to
agreeing a rolling schedule of future Services which are likely to be
required by the Company.
4.3 The Contractor shall in no circumstances be liable for indirect or
consequential loss (including loss of profits) deriving from the provision
or failure to provide any Services to the Company.
4.4 The Company acknowledges that the Contractor's Materials shall remain the
property of the Contractor and that save as provided in clause 4.5, the
Company shall not acquire any rights or interest in the Contractor's
Materials under this Agreement.
4.5 The parties agree that any intellectual property which is created solely by
reason of the provision of the Services shall either belong to the Company
or shall be licensed on a non-exclusive basis to the Company on a royalty-
free basis.
5 Annual Review
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Not later than three months before the end of the third and each subsequent
Contract Year, the parties shall discuss in good faith the extent and
quality of the Services provided during that Contract Year, the extent to
which the Yearly Fee for that Contract Year represents a fair and equitable
fee for the provision of those Services and the extent to which the Yearly
Fee would represent a fair and equitable fee for the provision of those
Services which are then forecast to be required by the Company during the
Contract Year next following, all with a view to agreeing a mutually
acceptable Yearly Fee for the Contract Year next following (but on the
basis that the Yearly Fee shall not be reduced unless any such reduction is
justifiable on objective grounds).
6 Term and Termination
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6.1 Subject to the rights of the Company under the remaining provisions of this
clause 6, this Agreement shall continue for the Initial Period and
thereafter may be terminated by the Company at any time by giving twelve
months notice in writing to the Contractor save that the Company agrees
that (subject to and without limiting its rights under the remaining
provisions of this clause 6), it shall not give notice to terminate this
Agreement under this clause 6.1 unless the directors for the time being of
the Company shall in good faith determine that the Services provided by the
Contractor are not required or are not value-enhancing or that they cease
to be commercially acceptable or cost effective for the Company. Either
party may terminate this Agreement by giving twelve months notice in
writing to the other to expire not earlier than the end of the fifth
Contract Year.
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6.2 The Company shall be entitled at any time after the Commencement Date and
by giving notice in writing to the Contractor to terminate this Agreement
with six months notice for Contractor Default.
6.3 Either party shall be entitled by giving notice to the other to terminate
this Agreement with immediate effect if that other party is in Material
Default.
6.4 Any termination by the Company of or the exercise by the Company of its
rights to terminate the provisions of this Agreement in accordance with
this clause 6 shall be without payment of compensation or damages
whatsoever to the Contractor (but without prejudice to any sums due and
payable under the terms of this Agreement for Services already provided by
the Contractor in accordance with the terms of this Agreement).
6.5 It is hereby acknowledged by the parties hereto that the Contractor shall
be given notification of any further services required by the Company from
time to time where the services required are of a type which, in the
opinion of the Company acting in good faith, the Contractor has the know-
how to so provide so as to give the Contractor the opportunity to tender.
The Company shall, in good faith, consider any application to tender for
services made by the Contractor in these circumstances and, in the event
that such tender is unsuccessful, shall provide the Contractor with a full
explanation of the reasons therefor.
6.6 No director nominated by the Contractor or any company in its Group nor
shall the Contractor or any company in its Group be entitled to participate
in any decision of the Directors of the Company which is expressed in this
Agreement as being a decision to be made by the Company (provided however
that the Contractor shall be entitled to participate in any discussions
leading up to such decisions).
7 Assignment and sub-contracting
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7.1 Neither party may assign any of its rights under this Agreement without the
consent of the other, such consent not to be unreasonably withheld.
7.2 The Contractor may not sub-contract or delegate the performance of its
obligations under this Agreement (save to a company which is a subsidiary
or holding company of the Contractor, or which is a subsidiary of any such
holding company).
8 Notices
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8.1 All notices and other communications required or permitted under this
Agreement shall be in writing and shall be delivered personally, sent by
air courier (in the case of notices given by a party in one jurisdiction to
a party in another), first class pre-paid post (in the case of a notice
given by a party in one jurisdiction to a party in the same jurisdiction),
telexed or sent by facsimile transmission (and promptly
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confirmed by air courier service in the case of notices sent from one
jurisdiction to another and by first class pre-paid post in the case of
notices sent by a party in one jurisdiction to another party in the same
jurisdiction). Any such notice shall be deemed given when so delivered
personally, telexed or sent by facsimile transmission or air courier or
first class pre-paid post to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
the Company: if to the Company, to:
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the Company at its registered office for the time being
Attention: the Managing Director
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the Contractor: if to the Contractor, to:
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Castle Tower Holding Corporation
000 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx
Xxxxx XX 00000
Attn: Xxx X. Xxxxxx Xx
Fax: 000 000 0000
9 Confidentiality
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9.1 All information given by the Company to the Contractor or otherwise
obtained by the Contractor relating to the business or operations of the
Company or of any person, firm, company or organisation associated with the
Company including, without limitation, the names and other particulars of
the Company's customers or clients (except for information which is in or
enters the public domain other than by breach of this clause 9.1) will be
treated by the Contractor, its employees, agents and sub-contractors as
confidential and not used other than for the benefit of the Company nor
disclosed to third parties without the prior written consent of the
Company.
9.2 All information given by the Contractor to the Company or otherwise
obtained by the Company relating to the business or operations of the
Contractor or of any person, firm, company or organisation associated with
the Contractor (other than information which is supplied in the provision
of the Services) including, without limitation, the names and other
particulars of the Contractor's customers or clients (except for
information which is in or enters the public domain other than by breach of
this clause 9.2) will be treated by the Company, its employees, agents and
sub-contractors as confidential and not used other than for the benefit of
the Contractor nor disclosed to third parties without the prior written
consent of the Contractor.
9.3 The foregoing obligations as to confidentiality shall remain in full force
and effect notwithstanding any termination of this Agreement.
10 Force Majeure
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Neither party will be liable to the other for any loss or damage suffered
as a direct or indirect result of any failure to provide any of the
Services or to perform or observe any other obligation in this Agreement as
a result of the occurrence of any of the following: act of God,
governmental act, war, fire, flood, explosion and commotion or industrial
dispute of a third party which prevents or substantially hinders such
performance and observance PROVIDED THAT in the event of any such
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circumstances arising the non-performing party shall as soon as practical
give notice thereof in writing to the other party with reasonable details
of the nature of the particular circumstances and the anticipated duration
of suspension or other inhibition on performance and shall further notify
the other party on the cessation of any such circumstances as are described
in this clause.
11 Secondment
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The provision of Services under this Agreement may include the provision of
services of an employee of the Contractor made available on a full or part
time basis to the Company by means of secondment in which event the
individual shall remain an employee of the Contractor.
12 General
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12.1 Nothing in this Agreement shall be deemed to create a partnership or agency
relationship between the Company and the Contractor or be deemed to
authorise either party to incur any liabilities or obligations on behalf of
or in the name of the other.
12.2 A waiver (whether express or implied) by one of the parties of any of the
provisions of this Agreement or of any breach of or default by the other
party in performing any of those provisions shall not constitute a
continuing waiver and that waiver shall not prevent the waiving party from
subsequently enforcing any of the provisions of this Agreement not waived
or from acting on any subsequent breach of or default by the other party
under any of the provisions of this Agreement.
12.3 Any amendment, waiver or variation of this Agreement shall not be binding
on the parties unless set out in writing, expressed to amend this Agreement
and signed by or on behalf of each of the parties.
12.4 The invalidity, illegality or unenforceability of any of the provisions of
this Agreement shall not affect the validity, legality and enforceability
of the remaining provisions of this Agreement.
13 Governing law and jurisdiction
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13.1 This Agreement shall be governed by and construed and interpreted in
accordance with the laws of England.
13.2 Each of the parties (for itself and on behalf of its respective holding and
subsidiary companies and the directors, employees and agents of each of
them) agrees that the English Courts shall have exclusive jurisdiction to
hear and decide any and all claims, disputes, complaints, actions or
proceedings ("Claims or Proceedings") whether in contract or tort, which
may arise at any time out of or in connection with
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any of the matters referred to in this Agreement, including, but not
limited to, any Claim or Proceedings asserting dishonesty, improper or
illegal conduct or breach of trust or duty or based on the effects of any
of those matters in any jurisdiction and any Claim or Proceedings which may
be material to either of the parties but of which that party is unaware or
does not suspect exists and for this purpose each of the parties
irrevocably submits to the exclusive jurisdiction of the English Courts.
13.3 The Contractor hereby irrevocably authorises and appoints Norose Notices
Limited (AMC/99/Z135214, for the attention of the Director of
Administration) at its registered office for the time being (or such other
person resident in England as the Contractor may by notice to all other
parties substitute) to accept service of all legal process arising out of
or connected with this Agreement and service on Norose Notices Limited (or
such substitute) shall be deemed to be service on the party concerned.
IN WITNESS whereof this Agreement has been entered into the day and year first
above written.
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SIGNED by )
)
......................................... )
for and on behalf )
of the Company ) /s/ Xxx X. Xxxxxx, Xx.
.......................
Duly authorised
SIGNED by )
)
....................................... )
for and on behalf )
of the Contractor ) [Illegible signature]
.......................
Duly authorised
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Schedule 1
The Services
Part A
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. Xxx Xxxxxx, CEO of CTC, who will become CEO of Newco, and Xxxxx Xxx,
CFO of CTC, have both committed personally to provide commercial and
financial expertise to Newco.
. Marketing support for launching new services in the UK and worldwide
. Infrastructure development and management expertise
. Financial, accounting and IT expertise
Part B
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. Site acquisition and development training.
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