Exhibit 10.20
THIS AGREEMENT is made on March 31, 2000
BETWEEN :
FIRSTMARK COMMUNICATIONS EUROPE S.A. (hereafter "FMCE"), a company incorporated
in Luxembourg and having its registered office at 0 xxx Xxxx Xxxxx, X-0000
Xxxxxxxxxx, X.X. Luxembourg B 65.610.
FIRSTMARK COMMUNICATIONS LATIN AMERICA L.L.C. (hereafter "FMCLA") a limited
liability company incorporated in Delaware and having its registered office at
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000.
WHEREAS
(A) FMCE and its subsidiaries are developing telecommunications services
and networks for use in countries throughout Europe.
(B) FMCLA and its subsidiaries are developing telecommunications services
and networks for use in countries throughout Latin America.
(C) FMCE and FMCLA have agreed that each should provide certain services to
the other on the terms of this Agreement.
NOW IT IS HEREBY AGREED as follows :
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement (including the Recitals hereof and the Schedules
hereto) unless the subject or context otherwise requires, the following
words and expressions shall have the following meanings : -
1.1.1. BILLING PERIOD means monthly unless otherwise agreed by the Parties.
1.1.2. FEE means an amount equal to the fair market value, as agreed
between FMCE and FMCLA, for the services provided. In any case in which
the providing Party asserts that the fair market value of services
exceeds $500,000 and such value is disputed by the receiving Party, the
Fee shall be determined by an independent accounting or consulting firm
of international standing agreed by the Parties.
1.1.3 FMCE includes, where the context permits, any subsidiary for the time
being of FMCE listed in Schedule II hereto. The Parties may agree to
add or delete any subsidiary from such Schedule.
1.1.4. FMCLA includes, where the context permits, any subsidiary for the time
being of FMCLA listed in Schedule III hereto. The Parties may agree to
add or delete any subsidiary from such Schedule.
1.1.5. INTELLECTUAL PROPERTY RIGHTS means all patent rights, copyrights
in all drawings, designs, plans, specifications, manuals, software,
rights in designs, trade marks, service marks, trade names and any
know-how, whether or not any of these is registered and including
applications for any such rights, matter or thing or registration
thereof and all rights or forms of protection of a similar nature or
having equivalent or similar effect to any of these which may subsist
anywhere in the world.
1.1.6. INTEREST RATE means the lesser of 10% per annum and the maximum
rate of interest then lawful in the United Kingdom.
1.1.7. PARTY or PARTIES means a party or parties to this
Agreement.
1.1.8. PROPRIETARY INFORMATION means all information furnished by or on
behalf of the disclosing Party other than information that (i) was
publicly available prior to its disclosure to the receiving Party or
(ii) becomes publicly available other than by reason of a breach of
this Agreement by the receiving Party or its representatives or (iii)
is made available to the receiving Party by a third party that is not
bound by an obligation of confidentiality to the disclosing Party or an
affiliate thereof.
1.2. INTERPRETATION
1.2.1. Except to the extent that the context requires otherwise, any reference
to THIS AGREEMENT or to any other agreement or document is a
reference to this Agreement or, as the case may be, the relevant
agreement or document as amended, supplemented or novated from time to
time and includes a reference to any document which amends, waives, is
supplemental to or novates the terms of this Agreement or, as the case
may be, the relevant agreement or document.
1.2.2. Except where otherwise stated, any reference to any statutory provision
includes a reference to any modification, extension or reenactment
thereof (whether made before or after the date hereof) for the time
being in force
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and also includes a reference to all by-laws, instruments, orders and
regulations for the time being made thereunder or deriving therefrom.
1.2.3. Clause Headings are for ease of reference only and shall be ignored in
the construction of this Agreement.
1.2.4. Unless the context otherwise requires, references to the singular
number shall include references to the plural number and vice versa ;
words denoting any gender include all genders , words denoting persons
include firms and corporations and vice versa.
1.2.5. References to Clauses and Schedules are to Clauses of and Schedules to
this Agreement.
2. DURATION
This Agreement shall enter into effect as of the Effective Date and
subject to prior termination as provided herein shall continue for a
period of five years thereafter.
3. SERVICES TO BE PROVIDED
3.1. Each Party agrees to provide to the other Party and its subsidiaries,
to the extent reasonably requested and reasonably available, the
services set out in Schedule I. The providing Party shall be entitled
at any time to require written confirmation of any such request for
services to be provided by it.
3.2. The providing Party shall perform the services required by the other
Party in a skilful and workmanlike manner and use all reasonable
efforts to meet the reasonable schedule and other requirements of the
other Party in respect of such services taking into account the
available resources of the providing Party.
3.3. All requests for services under this Agreement shall be subject to the
prior review and approval of a committee of the Board of Directors of
the Party requested to provide such services, which committee shall not
include executive officers of such Party. Nothing in this Agreement
shall place any obligation upon either Party to provide services where
in the opinion of the foregoing committee of its Board of Directors it
is contrary to the best interests of such Party to do so.
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4. INVOICE AND PAYMENT TERMS
4.1. The providing Party shall invoice the receiving Party within 30 days of
the first working day of any Billing Period in respect of the Fee for
that Billing Period together with any taxes payable thereon. Invoices
are payable within 30 days of the invoice date. The Parties may agree
to offset amounts due to each other and invoice for the net difference
between amounts due from each Party to the other.
4.2. Should the receiving Party fail to pay any amount due to the providing
Party hereunder by the due date, then without prejudice to any other
rights or remedies, the providing Party may charge interest on any
outstanding amounts validly due at the Interest Rate.
4.3. Each Party shall maintain all such accounts and records as are
reasonably necessary to support its claims for payment under this
Agreement for a minimum period of two years.
5. TAXES
Any fee payable in accordance with this Agreement is exclusive of any
and all taxes including but not limited to value added tax or other
duties or imposts (other than income taxes payable by the providing
Party on its profits) which, if applicable, will be charged to the
receiving Party in addition to the said Fee.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. Unless otherwise agreed in writing, all Intellectual Property Rights
arising from the performance of the services by the providing Party or
any consultant or subcontractor (to the extent vested in the providing
Party by that party) shall vest in and shall remain the sole property
of the providing Party.
6.2. FMCLA and FMCE shall do or procure to be done all such further acts or
things and execute or procure the execution of all such other documents
as the other Party may reasonably require from time to time for the
purpose of giving full effect to the provisions of this Clause.
7. TERMINATION PROVISIONS
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TERMINATION FOR DEFAULT
7.1. This Agreement may be terminated by written notice by either Party
should the other Party :
7.1.1. commit a material breach of this Agreement which is not remediable or,
if remediable, is not remedied in all material respects within 90 days
of a written request to do so by the Party not in default provided
always that should the Party in default propose, during such 90 day
period, a correction plan to remedy such breach which is acceptable to
the other Party and the Party in default commences and continues with
such correction plan then such breach shall be deemed remedied so long
as such correction plan is completed within a reasonable time; or
7.1.2. become insolvent or unable to pay its debts as they fall due, compound
with its creditors, make any voluntary bankruptcy or insolvency filing,
or have any involuntary bankruptcy or insolvency proceeding commenced
against it or any trustee, receiver, administrator or similar officer
appointed in respect of all or part of its business or assets and such
involuntary proceeding or appointment is not stayed, discharged or
terminated within 60 days.
7.2. If a Change in Control of either FMCLA or FMCE shall occur, either
Party shall be entitled, upon serving written notice on the other
within 180 days after such Change in Control, to terminate this
Agreement forthwith. For purposes of this Agreement, "Change in
Control" with respect to any entity shall mean (i) any merger,
consolidation, reorganization or sale or issuance of capital stock as a
result of which any person or entity other than FirstMark Holdings LLC
and its affiliates shall own, directly or indirectly, more than 50% of
the voting power and more than 50% of the equity interests in such
entity, (ii) any sale, lease, exchange or other transfer, directly or
indirectly, of all or substantially all of the consolidated assets of
such entity, or (iii) any liquidation or dissolution of such entity.
7.3. If the Agreement is terminated by either Party in accordance with
Clause 7.1 or 7.2, then in respect of services related to the period
prior to termination each Party shall pay the other Party its Fees
incurred up to the date of termination not later than 30 days after the
date of termination and shall reimburse the providing Party promptly
(and in event within 30 days after receipt of any invoice therefor) for
commitments made by the providing Party with third parties prior to the
date of termination.
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GENERAL TERMINATION PROVISIONS
7.4. Save as aforesaid neither Party shall have further obligation or
liability to the other and the provisions of this Clause 7 shall
constitute the sole and exclusive rights and remedies of either Party
in relation to the termination of this Agreement.
7.5. Subject to the payment of monies due to Services hereunder, each Party
shall, upon termination of this Agreement, deliver to the other all
work-in-progress which the other Party is obliged to deliver in the
performance of any services hereunder.
8. LIMITATION OF LIABILITY
8.1. In no event shall a providing Party or any of its affiliates or their
respective directors, officers, employees, agents and representatives
(each, an "Exculpated Person") be liable to a receiving Party for any
action taken or omitted to be taken hereunder, whether in contract,
tort, or otherwise at law or equity, other than in the case of gross
negligence or willful misconduct by such Exculpated Person. In no event
shall any Exculpated Person have liability hereunder for any indirect,
consequential, special or incidental damages.
8.2. The receiving Party shall indemnify and hold harmless each Exculpated
Person from and against all claims, liabilities, damages, costs,
expenses, penalties, fees (including reasonable attorneys' fees) and
amounts paid by way of compromise or settlement arising out of,
resulting from or relating to this Agreement or the performance of the
services contemplated hereby.
8.3. The provisions of this Clause 8 shall survive any termination of this
Agreement.
9. FORCE MAJEURE
If the providing Party is prevented from or delayed in performing any
of its obligations under this Agreement as a result of circumstances
beyond its reasonable control and without its fault or negligence
including but not limited to acts of God, acts of government, war,
terrorism, civil insurrection, fire, flood, explosions, earthquakes,
strikes, lockouts or other labour disputes, non-availability,
revocation or withdrawal of any import, export or other licenses,
epidemics or quarantines or acts or omissions of the receiving Party,
then such obligations shall be suspended for such period as is
equitable in all the circumstances, such period not being less than the
period of such force majeure,
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and the providing Party shall be entitled to be paid its reasonable
additional cost resulting from any such delay.
10. CONFIDENTIALITY
10.1. Each Party undertakes in respect of Proprietary Information disclosed
to it by the other :
10.1.1. to keep such Proprietary Information confidential ; and
10.1.2. not (without written approval of the disclosing Party) to make or cause
to be made any disclosure thereof whether directly or indirectly to any
third party (other than the receiving Party's financiers, lawyers,
auditors or other like professional advisers who have a need to know
and who agree to be bound by the provisions of this Clause 10) ;
10.1.3. not to use or allow to be used such Proprietary Information except
solely in relation to the purposes for which it was released unless and
to the extent that a further use of the Proprietary Information is
specifically authorised in writing by the disclosing Party ; and
10.1.4. not to disclose such Proprietary Information to any unauthorised
personnel within their own organisations who are not required to
receive or know such Proprietary Information for the purposes of this
Agreement.
10.2. The obligations of confidentiality under this Clause 10 with respect to
Proprietary Information shall continue for a period of 5 years from the
date of disclosure in each and every case notwithstanding any prior
termination of this Agreement. The provisions hereof shall continue to
be binding upon a Party which assigns this Agreement in accordance with
Clause 12.
11. SUBCONTRACTORS
A providing Party shall be entitled to engage sub-contractors to assist
in the provision of services and the performance of any other of its
obligations hereunder and the provisions of this Agreement shall inure
to the benefit of any such sub-contractor and its affiliates and their
respective directors, officers, employees, agents and representatives
except as otherwise agreed by the providing Party and such
sub-contractor.
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12. ASSIGNMENT
Except for sub-contracting of services as contemplated by Clause 11
(none of which shall relieve the providing Party of any liability or
obligation hereunder), neither Party shall assign or otherwise transfer
the benefits of this Agreement or any of its rights, duties or
obligations hereunder without the prior written consent of the other
Party.
13. NO PARTNERSHIP
Nothing herein shall create or be deemed to create a joint venture or
partnership between the Parties nor, save as specifically provided in
this Agreement, constitute one Party the agent of the other Party.
14. VARIATION AND WAIVER
14.1. No waiver by a Party of any provision of this Agreement shall be
binding unless made expressly and expressly confirmed by it in writing.
Any such waiver shall relate only to such matters of non-compliance or
breach as it expressly relates to and shall not apply to any subsequent
or other matter of non-compliance or breach.
14.2. Any variation to this Agreement shall only be binding if reduced to
writing and signed by the duly authorised representatives of the
Parties.
15. SUPERVENING LEGAL REQUIREMENTS
15.1. If any provision or term of this Agreement or any part thereof shall
become or be declared illegal, invalid or unenforceable for any reason
whatsoever including but without limitation by reason of the provisions
of any legislation or other provisions having the force or law or by
reasons of any decision of any Court or other body or authority having
jurisdiction over the Parties or this Agreement including the European
Commission and the European Court of Justice, such terms or provisions
shall be divisible from this Agreement and shall be deemed to be
deleted from this Agreement in the jurisdiction in question provided
always that, if any such deletion substantially affects or alters the
commercial basis of this Agreement, the Parties shall negotiate in good
faith to amend and modify the provisions and terms of this Agreement as
may be necessary or desirable in the circumstances. In the event that
the entire Agreement shall be
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declared illegal, invalid or unenforceable then the Agreement shall be
deemed terminated and the receiving Party shall pay the providing Party
its Fee incurred up to the date of termination within 30 days after
such termination and shall reimburse the providing Party promptly (and
in event within 30 days after receipt of any invoice therefor) for
commitments made by the providing Party with third parties prior to the
date of termination.
15.2. The Parties will also use their best efforts to secure any necessary
approvals or clearances from any competition authorities which have
jurisdiction over this Agreement, or of any agreement or arrangement of
which this Agreement forms part.
16. NOTICES
All notices, demands or other communications required or permitted to
be given or made hereunder shall be in writing and delivered personally
or sent by prepaid first class post by recorded delivery if within the
same country, or by telex, telefax or cable addressed to the intended
recipient thereof at its address set out above or to such other address
or telex or telefax number as any Party may from time to time duly
notify the other.
17. ANNOUNCEMENTS
Neither party shall make any announcements, new releases or other
public statement regarding the subject matter of this Agreement without
the prior written approval of the other Party such approval not to be
unreasonably withheld or delayed.
18. APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with
the laws of the United Kingdom.
19. ENTIRE AGREEMENT
This Agreement (together with the Schedules hereto) constitutes the
entire agreement between the Parties with respect to the subject matter
described herein and no modification, amendment or waiver of any of the
provisions of
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this Agreement shall be effective unless made in writing specifically
referring to this Agreement and duly signed by each Party. Each Party
hereby declares and confirms that it has not relied upon any statement
or information supplied, or opinions expressed, whether orally or in
writing, by the other Party prior to execution of this Agreement.
20. COUNTERPARTS
This Agreement may be entered into in any number of counterparts and by
the Parties to it on separate counterparts, each of which, when
executed and delivered, shall be an original, but all the counterparts
shall together constitute one and the same instrument.
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SIGNED for and on behalf of the Parties by a duly authorised representative.
FIRSTMARK COMMUNICATIONS EUROPE FIRSTMARK COMMUNICATIONS LATIN
S.A. AMERICA L.L.C.
By: /s/
---------------------------- By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Name:
Name: Xxxxxxx X. Xxxxx
Title: Director
Title: Co-Chief Executive Officer
Date:
Date:
Address: 0 xxx Xxxx Xxxxx Xxxxxxx: Corporation Trust Center
X-0000 Xxxxxxxxxx 0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000.
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SCHEDULE I
LIST OF SERVICES TO BE PROVIDED
Providing all reasonable consultancy services requested from time to time by the
receiving Party in relation to : the overall development of the receiving
Party's business and the implementation of necessary technical, scientific and
engineering systems relating thereto, including legal, financial, commercial,
administrative, marketing and technical functions ; relationships with
customers, suppliers, employees, independent contractors, third party advisers
and consultants, regulatory bodies, fiscal and governmental bodies and others.
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SCHEDULE II
LIST OF SUBSIDIARIES OF FMCE
FirstMark Communications Limited (UK)
FirstMark Communications France Sarl
FirstMark Communications Deutschland GmbH
FirstMark Communications Belgium SPRL
FirstMark Communications Spain SL
FirstMark Communications Luxembourg Sarl
FirstMark Communications Netherlands B.V.
FirstMark Communications Ireland Limited
FirstMark Communications Switzerland
FirstMark Communications Portugal
LambdaNet Communications GmbH
FirstMark Communications Netz GmbH
FirstMark CD GmbH
FirstMark Communications Europe Services Limited
Teleweb
FirstMark Communications Austria
FirstMark Communications Finland oy
FirstMark Communications Italy Srl
FirstMark Communications Denmark A/S
FirstMark Communications Norway
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SCHEDULE III
LIST OF SUBSIDIARIES OF FMCLA
FMCLA Online L.L.C.
FMCLA Technical Services L.L.C.
FMCLA Strategic Planning L.L.C.
FMCLA Marketing & Distribution L.L.C.
FirstMark Communications El Salvador, S.A.
FirstMark Holding Do Brasil
FirstMark Holdings Peru S.R.L.
FirstMark Communications Colombia S.A.
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