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Exhibit 10.43
SERVICES AGREEMENT
Komsomolsk-on-Amur, Russia January 5, 1994
This Agreement is made and entered into by and between The Pioneer Group,
Inc., a corporation organized and existing under the laws of the State of
Delaware U.S.A. ("Pioneer"), and Joint-Stock Company "Forest-Starma", a Russian
joint stock company of the closed type (the "Company").
PREAMBLE
WHEREAS, the Company is engaged in the business of developing timber
resources in the Russian Federation, and in connection with its activities
requires certain information, advice and services as described herein;
WHEREAS, Pioneer, including its subsidiaries and affiliates, has
significant experience in the development of natural resources, and is willing
to provide such information, advice and services as may be required to support
the Company's activities;
WHEREAS, the Company desires to enter into a Management Services
Agreement with Pioneer and Pioneer desires to perform certain management
services for the Company; and
WHEREAS, Pioneer is a stockholder of the Company.
NOW THEREFORE, in consideration of the mutual promises hereinafter set
forth and of the good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
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ARTICLE 1
1.1 Pioneer shall provide such general consulting, advisory and related
services (the "Services") to and for the Company as may reasonably be requested
from time to time by the Company in connection with the management and
development of the Siziman Timber Project, Khabarovsk Territory, Russian
Federation (the "Project"), including but not limited to the Services described
in Article 1.2 below (including any Services that may be required in support
thereof).
1.2 The Services shall include, but shall not be limited to, the
following:
(a) Assisting in obtaining hard currency loans for the development of
the Project from international financial institutions;
(b) Assisting in obtaining licenses from the Central Bank of the
Russian Federation for the hard currency loans described in subsection (a)
above;
(c) Securing commercial and marine insurance for the Project, and
advancing funds to cover all payments, costs and expenses associated with the
foregoing;
(d) Assisting in selecting equipment for the Project on the basis of
a capital budget to be agreed upon by Pioneer and the Company, purchasing such
equipment, in Pioneer's own name, or in the Company's name on the basis of a
power of attorney, entering into a purchase and sale contract with
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the Company for the import of such equipment into Russia in the event the
equipment is purchased by Pioneer in its own name, provided that under the terms
of such contract Pioneer shall assume no liability or responsibility whatsoever
for the quality, merchantability or fitness for a particular use of such
equipment, or other standard warranties associated with such equipment, making
arrangements for the shipment of such equipment to Russia, and advancing funds
to cover all payments, costs and expenses associated with the foregoing;
(e) Negotiating on behalf of the Company international contracts,
including a log marketing agreement, and otherwise representing the Company's
interests abroad in connection with the Project;
(f) Providing forestry, construction and other consulting services
relating to the development of the Project, including without limitation, the
arranging for the preparation of a feasibility study and environmental impact
assessment, and advancing funds to cover all payments, costs and expenses
associated with the foregoing;
(g) Arranging for the provision of construction services relating to
the Project, including without limitation, the construction of a camp, jetty and
roads for the Project, and advancing funds to cover all payments, costs and
expenses associated with the foregoing;
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(h) Assisting in the preparation of a capital budget for the Project;
(i) Assisting in the training of the Company's accounting and
financial personnel and in the development of both automated accounting systems
and complex financial models for the Project; and
(j) Arranging for the provision within Russia of legal, customs
clearance, financial, accounting and other services for the Project, and
advancing funds to cover all payments, costs and expenses associated with the
foregoing.
ARTICLE 2
FEES AND EXPENSES
2.1. An equitable fee structure for the provision of Services by Pioneer
(the "Fee"), and a schedule for the payment of such Fee, shall be negotiated
from time to time by the Company and Pioneer, and shall be set forth in a
corresponding attachment to this Agreement.
2.2 The Company shall pay Pioneer the Fee, in accordance with Section 2.1
above upon receipt by the Company of an invoice therefor in accordance with
Article 3 below.
2.3 In addition to the Fee, within the amounts stipulated in a capital
budget for the Project to be agreed upon by Pioneer and the Company, the Company
shall reimburse Pioneer for the sum of all fees, expenses and other payments
incurred or paid by Pioneer
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in connection with or relating to the performance of the Services under this
Agreement, including, but not limited to:
(a) Compensation and benefits attributable to Pioneer's employees and
independent contractors dedicated to providing the Services;
(b) If agreed upon by the parties, a proportionate share of
compensation and benefits attributable to Pioneer's employees responsible for
providing the Services on a non-routine basis;
(c) travel, food and lodging expenses of Pioneer's employees and
independent contractors traveling to Russia on business relating to the Project;
(d) housing expenses and reasonable living allowances for Pioneer's
employees and independent contractors based in Russia for extended periods of
time;
(e) travel, food and lodging expenses paid by Pioneer on behalf of
the Company's employees and independent contractors traveling on business trips
outside of Russia;
(f) professional services fees, including legal fees, forestry
consulting fees, construction services fees and customs clearance fees;
(g) cost of equipment purchased or paid for by Pioneer on behalf of
Forest-Starma in accordance with Section 1.2(d) above;
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(h) fees and other payments advanced by Pioneer on behalf of the
Company to vendors and other providers of Services with which the Company has
entered into contracts according to Section 7.3 of this Agreement;
(i) costs of materials and services, including telecommunication
services, consumed in support of the Services;
(j) costs of obtaining international financing for the Project,
including commitment fees payable to international financial institutions; and
(k) other normal business expenses associated with the performance of
the types of Services described herein.
Pioneer shall submit to the Company, according to a schedule to be agreed
upon by the parties, itemized invoices for such expenses, including all
necessary support documentation required in accordance with Russian accounting
standards, and the Company shall pay such invoices in accordance with Article 3
below.
ARTICLE 3
PAYMENT BY THE COMPANY
3.1 The Company shall pay in US Dollars into Pioneer's bank account
indicated in Section 13.1 hereof all amounts due hereunder within thirty (30)
days after receipt of an invoice therefor. Without limiting the generality of
the foregoing, the parties hereby agree that, in order to provide time for the
Project to reach a stage of substantial completion, Pioneer shall submit no
invoices for fees, reimbursable expenses or any other amounts due
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under this Agreement for a period of eighteen months after the effective date of
this Agreement.
3.2 In the event the Company fails to make any payment hereunder within
the 30-day period stipulated in Section 3.1 above, in addition to other remedies
available to Pioneer in connection with such failure, Pioneer shall have the
right to receive from the Company, and the Company shall be obligated to pay
Pioneer, a late payment penalty, calculated daily for each day payment is
overdue at a rate equivalent to 1% per month of the amount of payment overdue.
At its sole option Pioneer may request that the Company cover its payment
obligations with respect to any amounts due hereunder through the issuance to
Pioneer of one or more short-term promissory notes for such amounts, and the
Company agrees to issue such promissory notes at Pioneer's request.
3.3 If agreed upon by the parties, the Company may pay directly to
vendors, service providers and other applicable parties certain of the fees,
expenses and other payments described in Section 2.3 above.
3.4 The Company shall be responsible for and carry the risk of obtaining
all consents, permissions, and approvals of whatever nature with respect to the
payments required to be made pursuant to this Agreement, except for licenses
from the Central Bank of the Russian Federation for the hard currency loans
described Section 1.2(a) above, and Pioneer shall be responsible for providing
in a timely fashion all necessary documents requested by
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the Company for such purposes.
ARTICLE 4
CONFIDENTIALITY
4.1 For purposes of this Article 4, the term "Confidential Information"
shall mean, by way of illustration and not limitation, all knowledge of
information whether or not patentable and whether or not copyrightable, owned,
possessed or used by Pioneer or the Company, as the case may be, including
without limitation any invention, discovery, computer software, documentation,
data, technology, designs, innovations, improvements, vendor information,
customer information, apparatus, equipment, trade secret, process, research,
reports, technical data, know-how, technology, marketing or business plan,
forecast, unpublished financial statement, budget, price, cost and employee list
that is disclosed by, or on behalf of, Pioneer or, as the case may be, the
Company, as well as all data derived therefrom.
4.2 The parties to this Agreement undertake that both during the term of
this Agreement and after its termination, each of them will not without the
written consent of the other party directly or indirectly disclose to any third
party any Confidential Information regarding the affairs or business of the
other party which may have come into its possession or knowledge during said
period.
4.3 The obligations under this Article 4 shall not apply to any
information that:
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(a) is in the public domain at the time of disclosure or later become
part of the public domain without any default of the disclosing party; or
(b) was in the possession of the disclosing party at the time of
disclosure and was not previously given by another party to the disclosing
party; or
(c) was obtained, without any obligation of confidentiality, from a
third party owing no duty to any other party to keep this information
confidential; or
(d) must necessarily be given to a third party for the purposes of
this Agreement, in which case the disclosing party must bind such third party to
an undertaking of confidentiality incorporating the terms and conditions of the
undertaking of confidentiality set forth in this Article 4; or
(e) was duly requested by a court, governmental agency or other
governmental body, provided that the disclosing party provides prior written
notice of such disclosure to the other party and takes reasonable and lawful
actions to avoid and/or minimize the extent of such disclosure.
ARTICLE 5
INDEMNIFICATION
5.1 The Company shall indemnify, defend and hold harmless Pioneer and
Pioneer's present and future officers, directors, employees, independent
contractors, agents and assignees from and against any and all losses, claims,
costs, damages, liabilities,
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fines, penalties, forfeitures, causes of action, suits, and expenses (including,
without limitation, settlement costs and any legal, accounting or other expenses
for investigating or defending any actions or threatened actions) of any kind or
of any nature arising directly or indirectly out of, or in connection with, the
execution of any Services covered by this Agreement; provided nonetheless, that
none of the provisions of this Article 5 shall, in any case in which Pioneer, or
any of the officers, directors, employees, independent contractors, agents and
assignees described above, has failed to show the degree of care or diligence
required of it or him, relieve Pioneer, or such officer, director, employee,
independent contractor, agent or assign, from or against liabilities which by
virtue of any rule of law would otherwise attach to it or him in respect of any
gross negligence, defaults, breach of duty or breach of trust of which it or he
may be guilty in relation to its or his duties under these presents.
ARTICLE 6
INDEPENDENT CONTRACTOR STATUS
6.1 Notwithstanding anything in this Agreement or otherwise to the
contrary, Pioneer undertakes its duties under this Agreement as an "independent
contractor" providing information, advice and services, and not as an employee
or agent of the Company.
6.2 It is agreed between the parties hereto that the technical knowledge,
information, advice, interpretations, and
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recommendations are provided hereunder to the Company by Pioneer in an advisory
capacity and that the decision to apply any of them or make use thereof for the
benefit of the Company's activities rests with the Company.
ARTICLE 7
ASSIGNMENT; ARRANGEMENTS WITH THIRD PARTIES
7.1 Neither this Agreement nor any rights or obligations created herein
shall be assignable by either of the parties hereto without the written consent
of the other party.
7.2 Pioneer may, but shall not be obligated to, procure from any third
party some or all of the information, advice and services that it provides under
this Agreement.
7.3 If agreed upon by the parties, the Company may enter into separate
contracts with certain vendors and other providers of Services within the scope
of this Agreement. In such event, Pioneer may at its option, upon written notice
to the Company or with the agreement of the Company, make payments under such
contracts directly to such vendors and other service providers and shall invoice
the Company for such payments in accordance with Section 3.1 above.
ARTICLE 8
FORCE MAJEURE
8.1 Neither party shall be liable for failure to perform its obligations
hereunder in full or in part if such failure is due to an event of force majeure
("Force Majeure") that occurred after
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the signing of the Agreement and could not be reasonably prevented and for which
no reasonable performance alternative exists. For the purposes of this
Agreement, Force Majeure shall include (but is not limited to) war,
insurrection, earthquake, flood, fire, strikes, civil strife, acts of the
government or state or other events the occurrence of which is beyond a party's
responsibility and which is beyond a party's reasonable control.
ARTICLE 9
DURATION
9.1 This Agreement shall become effective as of January 5, 1994 and shall
remain in effect for a term of five years thereafter. The term of this Agreement
shall automatically be extended for additional terms of five years unless one
party provides the other party with written notice of its desire not to extend
the term of this Agreement at least 30 days prior to expiration of the then
current term.
9.2 If on or before the date falling two years after the last date on
which there was an agreement as to the amount of the Quarterly Fee, the parties
cannot agree in good faith to a new Quarterly Fee, then either party may
terminate this Agreement at any time after such date by giving the other party
thirty (30) days prior written notice.
9.3 Termination of this Agreement shall not affect:
(a) the obligation of the Company to pay all amounts due to Pioneer as a
result of Services, including late payment penalties, provided or
reimbursable expenses incurred by Pioneer under this Agreement; and
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(b) the obligations of either party under separate agreements entered
into in connection with this Agreement or with respect to the subject
matter of this Agreement.
ARTICLE 10
APPLICABLE LAW; ARBITRATION
10.1 This Agreement shall be governed and construed in accordance with
the substantive laws of the Commonwealth of Massachusetts, without giving effect
to the conflict of law provision thereof.
10.2 The parties shall exercise their best efforts to resolve amicably
all disputes or differences arising between them in connection with this
Agreement. In the event that any dispute, controversy or claim arising out of or
relating to this Agreement or the breach, termination or invalidity thereof
cannot be resolved through bilateral negotiation between the parties, such
matters shall be referred for resolution to the Stockholm Chamber of Commerce
and shall be finally settled by arbitration in accordance with the UNCITRAL
Arbitration Rules. There shall be three arbitrators, one of whom shall be
approved by Pioneer, one of whom shall be appointed by the Company, and the
third of whom shall be appointed by agreement of the first two arbitrators or,
failing agreement, by the Stockholm Chamber of Commerce. The arbitration shall
be conducted in Stockholm, Sweden, and all proceedings shall be conducted in the
English language. The arbitrators shall apply the substantive laws of the
Commonwealth of Massachusetts, without giving effect to the conflict of law
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provisions thereof. The prevailing party shall be entitled to an award of
reasonable attorneys' fees incurred in connection with the arbitration in such
amount as may be determined by the arbitrators. The award of the arbitrators
shall be the sole and exclusive remedy of the parties and shall be enforceable
in any court of competent jurisdiction. Notwithstanding the foregoing, the
parties shall be entitled to seek injunctive relief or other equitable remedies
from any court of competent jurisdiction.
ARTICLE 11
ENTIRETY OF AGREEMENT; AMENDMENTS
11.1 This Agreement constitutes the entire agreement between the parties
hereto, and supersedes all prior negotiations, understandings and agreements
between them with respect to the subject matter hereof.
11.2 The provisions of this Agreement may be waived, supplemented,
altered, amended, or modified only by an instrument in writing signed by both of
the parties hereto.
ARTICLE 12
MARGINAL HEADINGS AND TITLES
12.1 The marginal headings and titles of Articles, subsections and
paragraphs are inserted for convenience of reference only and in no way define,
limit or effect the scope or substance of this Agreement.
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ARTICLE 13
NOTICES
13.1 Any notice required or permitted to be given to the parties hereto
shall be given in writing and shall be deemed effectively given upon personal
delivery or within one week after being sent by internationally recognized
courier, fees prepaid addressed to the other party at the address shown below,
or at such other address as such party may designate in writing to the other
party, and if the addressee has been simultaneously informed about the content
of the message by telefax:
(a) Joint-Stock Company "Forest-Starma"
Xxxxxxxxx Xx., 0
Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx-xx-Xxxx 651008
Russia
Attn: Xxxxxxx Xxxxxxxxxx, President
Tel: 0000-00-000-00
Fax: 0000-00-000-00
Bank Account No. 00000000 with the Komsomolsk
Branch of Regiobank
(b) The Pioneer Group, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx, Vice President
Tel: 000-000-0000
Fax: 000-000-0000
Bank Account No. 5462-9068 with State Street
Bank and Trust Company
ARTICLE 14
SEVERABILITY
14.1 In the event that any provision of this Agreement shall be invalid,
illegal or otherwise unenforceable, the validity, legality and enforceability of
the remaining provisions shall in
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no way be impaired.
ARTICLE 15
LANGUAGE
15.1 This Agreement has been drafted in English and translated into
Russian. In the event of a conflict between the English and Russian language
texts of this Agreement, the English language text shall govern.
IN WITNESS WHEREOF the parties have caused this Agreement to be duly
executed as of the 5th day of January, 1994 in four original copies, two in
Russian and two in English.
THE PIONEER GROUP, INC.
[Corporate Seal]
By: /s/ Xxxx X. Xxxxx, Xx.
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Xxxx X. Xxxxx, Xx., President
JOINT-STOCK COMPANY "FOREST-STARMA"
[Seal]
By: /s/ Xxxxxxxxx Xxxxxxxx
------------------------------
Xxxxxxxxx Xxxxxxxx
On the basis of a power of
attorney
By: /s/ Xxxxxxxxxx Xxxxxxx
------------------------------
Xxxxxxxxxx Xxxxxxx
On the basis of a power of
attorney
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