Document/Exhibit Description Pages Size
1: 8-K Current Report 6 23K
2: EX-2.1 Share Acquisition Agreement 21 65K
3: EX-10.1 Agreement, Dated June 9, 1997 7 26K
4: EX-10.2 Taxation Indemnity 5 17K
5: EX-10.3 Services Agreement 14 43K
6: EX-10.4 Service Agreement 17 53K
7: EX-10.5 Deed of Covenant 8 29K
8: EX-10.6 Deed of Covenant 9 28K
9: EX-10.7 Loan Agreement 11 35K
10: EX-10.8 Stock Pledge Agreement 8 29K
11: EX-10.9 Termination Agreement 4 11K
CONFORMED COPY
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Dated 9 June 1997
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(1) GORANDEL TRADING LIMITED
(2) ALPHA-A LIMITED AND OTHERS
SERVICES AGREEMENT
Travers Smith Braithwaite
10 Snow Hill
London EC1A 2AL
Telephone 0171-248 9133
Facsimile 0171-236 3728
INDEX
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Clause Page Number
1. Definitions and interpretation 1
2. Appointment 3
3. Terms of business 3
4. Confidentiality 4
5. Liability 5
6. Force majeure 5
7. Term and termination 5
8. Assignment 6
9. No waiver 6
10. Severance 6
11. Notices 7
12. Applicable law and jurisdiction 7
13. General 7
14. Dispute Resolution 8
15. Service of Proceedings 9
Schedules
1 Alpha Companies 10
Annexures
1. Map of Relevant Area
2. Agreed sub-contract rates
THIS AGREEMENT is made on 9 June 1997
BETWEEN:-
(1) GORANDEL TRADING LIMITED a company incorporated and registered in Cyprus
(registration number 56442) whose registered office is at 10 Mnasiadou Street,
Elma Building, Nicosia, Cyprus ("GTL"); and
(2) THE SEVERAL COMPANIES whose details are set out in Schedule 1 (the "Alpha
Companies").
IT IS AGREED as follows:-
1. Definitions and interpretation
1.1 Throughout this Agreement, including the Schedules, the following words and
phrases have the following meanings:-
Business Day a weekday, other than a Saturday, on which
clearing banks are ordinarily open for business
in the City of London;
CIS the geographical area of those states which at
the date of this Agreement are members of the
Confederation of Independent States and any
state(s), territory(ies) within such area as may
from time to time merge or result from any
reorganisation, boundary reorganisation,
amalgamation or division which may occur in
or between any such state(s);
Client in relation to a person carrying on a business,
any person who, in the course of such
business, has been provided with Security
Goods or supplied with Security Services in the
Relevant Area, including any person who has
asked (or enquired about) the provision of
Security Goods or Security Services in the
Relevant Area;
GTL Client a Client whose registered office or that of its
ultimate holding company is outside of the
Relevant Area or a Client which is a joint
venture entity or other special purpose vehicle
where one or other of the shareholders or
persons operating the business of such entity
or vehicle has its registered office or that of its
ultimate holding company outside the Relevant
- 2 -
Area in respect of whom GTL has arranged (or has
been requested to arrange) the provision of
Security Goods or Security Services in the
Relevant Area;
Confidential Information information or data of a confidential nature or
which is proprietary to a party relating to the
affairs of the party or to its business;
Excepted Client a Client who is not a GTL Client;
Relevant Area the area shown edged in red on the map which
comprises the Annexure to this Agreement and
which encompasses the CIS, Latvia, Lithuania
and Estonia;
Security Goods all goods and products required in order to
provide Security Services;
Security Services the provision and management of security of all
kinds, including (without limitation) guard and
other protection services, courier services,
logistical management, medical management,
supervision and training of security personnel,
advice and consultation on all types of security
arrangements and on situations involving security
needs, equipment supply, investigative services
and all services ancillary to or relating to such
matters;
US$ the unit of currency of the USA.
1.2 Where used in this Agreement the terms "subsidiary" and "holding company"
shall have the meanings respectively attributed to them by section 736 of the
Companies Act 1985 as in force at the date of this Agreement.
1.3 A reference to any statutory provision in this Agreement:-
1.3.1 includes any order, instrument, plan, regulation, permission and
direction made or issued under such statutory provision or deriving
validity from it; and
1.3.2 shall be construed as a reference to such statutory provision as
in force at the date of this Agreement (including, for the avoidance
of doubt, any amendments made to such statutory provision that are in
force at the date of this Agreement); and
1.3.3 shall also be construed as a reference to any statutory
provision of which such statutory provision is a re-enactment or
consolidation.
- 3 -
1.4 The headings in this Agreement are for convenience only and shall not
affect its meaning.
1.5 References to a clause are (unless otherwise stated) to a clause of this
Agreement.
1.6 Words importing one gender shall (where appropriate) include any other
gender and words importing the singular shall (where appropriate) include the
plural and vice versa.
2. Appointment
2.1 Subject to the provisions of clause 2.3, the Alpha Companies each agree
that for the duration of this Agreement they will not provide Security Goods or
Security Services in the Relevant Area to any Client other than to GTL (or any
other member of the group of companies of which GTL is a member) and undertake
to GTL that they shall on request by GTL provide written details of all Clients
(save for any of such Clients which are wholly state owned) for whom they act
or are sub-contracted to act.
2.2 The provisions of clause 2.1 shall not apply to the provision by the Alpha
Companies of Security Goods or Security Services within the Relevant Area where
the Client is an Excepted Client.
2.3 During the term of this Agreement GTL shall not contract for the provision
of Security Goods or Security Services in the Relevant Area without first
having offered to subcontract the provision of such Security Goods or Security
Services to any of the Alpha Companies. Such offer shall be made in writing to
the relevant Alpha Company and shall be deemed declined unless the relevant
Alpha Company shall, within a period of 7 days following the offer, have
confirmed:
2.3.1 that it is ready and able to perform the Security Services or
provide the Security Goods requested; and
2.3.2 that it is in agreement with the commercial terms proposed by
GTL in making the offer pursuant to clause 3 below.
The company to whom the offer to sub-contract is made shall be in the absolute
discretion of GTL (following consultation with an officer of Defence Systems
Group Limited).
3. Terms of business
3.1 Each of the parties will use their best endeavours to promote the provision
of Security Goods and Security Services within the Relevant Area. Each party
will market and promote the provision of Security Goods and Security Services
to Clients and potential Clients in the Relevant Area. The parties will seek to
develop and exploit markets in the Relevant Area for the provision of Security
Goods and Security Services. Each of the Alpha Companies shall have principal
responsibility for promotion of this business within the Relevant Area and GTL
shall have principal responsibility for promotion of this business outside the
Relevant Area.
3.2 Save in relation to any Excepted Clients any contact by any party hereto
with a Client
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or potential Client and any enquiry by a Client or potential Client to any
party hereto for or in connection with the provision of Security Goods or
Security Services in any part of the Relevant Area shall be directed to GTL.
GTL shall then offer to sub-contract the matter in accordance with clause 2.4.
3.3 Each order accepted in accordance with clause 2.4 shall constitute a
separate contract with GTL on the terms agreed.
3.4 The terms on which Security Goods or Security Services are to be provided
to a Client pursuant to an offer referred under clause 2.4 shall be defined by
GTL in the offer. The sub-contract shall provide for payment to the relevant
sub-contractor on the basis of the rates set out in Annexure 2 and such rates
shall be fixed for a period of one year and thereafter any increase in such
rates shall only be made following service of 90 days' written notice by the
sub-contractor and providing that GTL is able to agree with the Client a
corresponding percentage increase in the fees payable to it by the Client. The
payment to the sub-contractor shall be made as it shall direct (subject to
GTL's approval, which will not be unreasonably withheld) provided that the
sub-contractor shall deliver to GTL a monthly invoice (in US$) for sums payable
to it in respect of work undertaken during the preceding month. GTL shall make
payment to the sub-contractor of an agreed invoice within 15 days of receipt by
GTL of such invoice and shall, where it is able, make payment to the
sub-contractor in the local currency on the basis of the exchange rate quoted
by the Bank of Scotland on the date of the agreed invoice, or failing which,
shall make payment in US$.
3.5 Where Security Goods or Security Services are provided to a Client in
accordance with clause 3.4 above the sub-contractor shall take sole
responsibility for performance of the contract, shall keep GTL fully informed
of its performance and the reason for any delay or difficulty in its
performance and shall indemnify GTL against any claim by the Client made
against GTL which arises from any failure in performance or other acts or
omissions of the sub-contractor in respect of such contract.
3.6 The sub-contractor shall use its best endeavours to perform the Security
Services and deliver the Security Goods in a prompt and professional manner to
the satisfaction of the Client and in accordance with the instructions of GTL,
including in particular but without limitation, procuring that personnel wear
such uniforms as may be specified by GTL.
3.7 The parties will regularly liaise concerning the performance of orders
generated and the promotion of the business referred to in clause 3.1 above in
the best interests of the business. Where any contract with a Client has not
been properly performed or where any Client makes substantial or persistent
complaints about the performance of the contract the parties shall meet
forthwith to determine how this shall be resolved. The party in default shall
be subject to the termination provisions of clause 7.2.1 if the matter is not
resolved to the mutual satisfaction of the parties.
4. Confidentiality
Both during and after the term of this Agreement each of the parties shall, and
shall procure that its employees, contractors and agents shall, keep
confidential and not disclose to any third party any Confidential Information.
This shall not apply to any Confidential
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Information which comes into the public domain without fault on the part of a
party.
5. Liability
The liability of each of the parties to the other arising out of or in
connection with the supply of Security Services or Security Goods, whether for
direct, indirect, consequential or any other type of loss and whether the same
shall have been caused by the negligent, misrepresentation or any other fault
of the party or by any breach or non-performance by the party of this Agreement
shall in no event exceed US$1,000,000 in total and all conditions, warranties
or other terms that are expressed or implied by law or otherwise inconsistent
with the obligations of the parties expressed in this Agreement are hereby
excluded, provided always that nothing in this Agreement shall exclude the
liability of the parties for death or personal injury caused by their
respective negligence.
6. Force majeure
Neither party shall be liable to the other nor shall it be deemed to be in
default of this Agreement as a result of any delay or failure in performing its
obligations under this Agreement to the extent that any such delay or failure
arises from causes beyond its reasonable control including, but not limited to,
acts of God, acts or regulations of any governmental or supranational
authority, war or national emergency, accident, fire, riot, strikes, lock-outs
and industrial disputes.
7. Term and termination
7.1 This Agreement shall be deemed to have commenced on 31 May 1997 and shall
continue in force until 31 May 2002.
7.2 A party may, without prejudice to any other rights which it may have,
forthwith upon giving written notice to the other terminate this Agreement upon
the happening of any of the following events:-
7.2.1 if the other fails to observe or perform any of the terms or
conditions of this Agreement and such default or breach, if capable of
remedy, continues for 30 days after notice from the party specifying
the breach or default and requiring the same to be remedied;
7.2.2 if the other makes or commits such default or breach as referred
to in clause 7.2.1 which is incapable of remedy;
7.2.3 if the other ceases or threatens to cease to carry on its
business(es) or a substantial part of such business(es) or disposes or
threatens to dispose of the whole or a substantial part of its
undertaking, property or assets or stops or threatens to stop payment
of its debts generally;
7.2.4 if the other proposes or makes any scheme of arrangement or
composition with its creditors or is unable to pay its debts within
the meaning of section 123 of the Insolvency Act 1986;
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7.2.5 if a resolution is passed or a petition presented for the
winding-up of the other (other than for the purposes of a
reconstruction or amalgamation, during the course of which the other
party remains capable of performing in full its obligations under this
Agreement, and the terms of which have previously been approved in
writing by the first party);
7.2.6 if a resolution is passed or a petition presented for the
appointment of, or if the appointment is otherwise made of, a
receiver, manager, administrative receiver or like person over the
whole or any material part of the property or assets of the other
party or a resolution is passed or a petition presented for the making
of an administration order or an administration order is otherwise
made in relation to the other party;
7.2.7 if an event analogous to any of those described in clauses
7.2.4, 7.2.5 and 7.2.6 occurs in relation to a party in any territory
to whose jurisdiction it is subject;
7.2.8 if control of the other party is acquired by one or more persons
not having control of it at the date of this Agreement (and, for the
purposes of this provision, each party shall notify the other
forthwith on becoming aware of any such acquisition of control);
7.3 GTL shall not be liable to pay to any other party any compensation for loss
of profits or goodwill or for any other loss or damage whatsoever arising as a
result of the expiry or non-renewal of this Agreement under clause 7.1 above.
8. Assignment
None of the parties shall, without the prior written consent of the other,
assign, mortgage, charge, pledge or otherwise encumber, deal with or dispose of
any of its rights arising from or in connection with this Agreement nor shall
any of the Alpha Companies, without such consent, sub-contract the provision of
Security Goods or Security Services or otherwise delegate or transfer or
purport to transfer any of its obligations under this Agreement.
9. No waiver
No failure or delay by a party in exercising any remedy, right, power or
privilege under or in relation to this Agreement shall operate as a waiver of
the same nor shall any single or partial exercise of any remedy, right, power
or privilege preclude any further exercise of the same or the exercise of any
other right, power or privilege.
10. Severance
In the event that any provision of this Agreement shall be declared by any
court or other competent authority to be void or unenforceable by reason of any
provision of applicable law it shall be deleted and the remaining provisions of
this Agreement shall continue in full force and effect.
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11. Notices
11.1 Any notice shall be in writing and signed by or on behalf of the person
giving it. Except in the case of personal service, any notice shall be sent or
delivered to the party to be served at the address stated at the beginning of
this Agreement. Any alteration in such details shall, to have effect, be
notified to the other parties in accordance with this clause.
11.2 Service of a notice must be effected by one of the following methods:-
11.2.1 personally on a director or the secretary of any party and
shall be treated as served at the time of such service;
11.2.2 by prepaid first class post (or by airmail if from one country
to another) and shall be treated as served on the second (or if by
airmail the fourth) Business Day after the date of posting. In proving
service it shall be sufficient to prove that the envelope containing
the notice was correctly addressed, postage paid and posted;
11.2.3 by delivery of the notice through the letterbox of the party to
be served and shall be treated as served on the first Business Day
after the date of such delivery;
11.2.4 by sending it by facsimile transmission to the number for the
party to whom it is to be sent which is referred to below or if
another number shall have been notified by that party to all the other
parties for the purposes of this clause by notice given in accordance
with this clause 11.2, then to the number of such party which shall
have been so notified, for which purpose the latest notification shall
supersede all previous notifications and shall be treated as served at
the time of transmission. The fax numbers of the parties for the
purpose of this clause 11.2 are:
GTL - Fax No. 44-171-233 7434
In respect of the Alpha Companies, the fax numbers set against their
respective names in Schedule 1.
12. Applicable law and jurisdiction
12.1 This Agreement shall be governed by and construed in accordance with the
laws of England.
12.2 The parties irrevocably submit to the non-exclusive jurisdiction of the
Courts of England and Wales in respect of any claim, dispute or difference
arising out of or in connection with this Agreement. Nothing contained in this
clause shall be taken to have limited the right of any of the parties to
proceed in the courts of any other competent jurisdiction.
13. General
13.1 This Agreement shall supersede all prior agreements and arrangements
between the
- 8 -
parties relating to its subject matter and all such agreements and arrangements
are hereby terminated without prejudice to any rights which may have accrued to
either party. This Agreement constitutes the entire and only legally binding
agreement between the parties relating to its subject matter and no variation
of this Agreement shall be effective unless made in writing signed by or on
behalf of all the parties and expressed to be such a variation.
13.2 Any remedy or right conferred by this Agreement on any of the parties for
breach of this Agreement shall be in addition to and without prejudice to any
other right or remedy available to any of them.
13.3 No waiver by any party of any requirement of this Agreement or of any
remedy or right under this Agreement shall have effect unless given by notice
in writing signed by such party. No waiver of any particular breach of the
provisions of this Agreement shall operate as a waiver of any repetition of
such breach.
13.4 This Agreement may be executed in two or more counterparts and execution
by each of the parties of any one of such counterparts will constitute due
execution of this Agreement.
13.5 Each party shall and shall procure that any third party shall, do, execute
and perform all such further deeds, documents, assurances, acts and things as
may be necessary to give effect to this Agreement.
13.6 Nothing in this Agreement shall create a partnership or establish a
relationship of principal and agent or any other relationship of a similar
nature between the parties.
13.7 Neither party hereto shall have the power or authority to bind the other
as to any matter or thing to be done save as may be specifically agreed in
writing between the parties from time to time.
14. Dispute Resolution
14.1 Any dispute arising out of or in connection with this Agreement, including
any question regarding the existence, scope, validity or termination of this
Agreement or this clause (whether arising in contract, tort or otherwise),
shall at the nomination of the party initiating the action be referred to and
finally resolved by Arbitration under the Rule of the London Court of
International Arbitration ("LCIA"), which Rule is deemed to be incorporated by
reference into this clause to the extent not inconsistent with its provisions.
14.2 The arbitral panel shall consist of three arbitrators, all of which at the
time of the arbitration must be independent of the parties. The party
initiating arbitration (the "Claimant") shall nominate its arbitrator in its
request (the "Request"). The other party (the "Respondent") shall nominate one
arbitrator within 30 days of receipt of the Request in accordance with Article
2.1 of the Rules of the LCIA. Where there is more than one Claimant or more
than one Respondent and the Claimants or the Respondents (as the case may be)
cannot agree between themselves on the nomination of an arbitrator, the
Arbitration Court of the LCIA shall forthwith appoint both parties' arbitrators
and such arbitrators shall stand as the parties' nominated arbitrators. Within
30 days of the
- 9 -
appointment of the parties' nominated arbitrators by the Arbitration Court of
the LCIA or the nomination of the second arbitrator, the two arbitrators shall
nominate a third arbitrator to be the Chairman of the tribunal, failing which
the Arbitration Court of the LCIA shall forthwith appoint the Chairman.
14.3 The place of the arbitration shall be London, England and the proceedings
shall be governed by the laws of England.
14.4 The language of the arbitration shall be English and the award shall be in
English.
14.5 The arbitral award may grant any relief deemed by the arbitrators to be
appropriate, including, without limitation, specific performance and
preliminary or interim relief (including but not limited to a preliminary
injunction or temporary restraining order). The arbitral award shall state the
reasons for the award and relief granted, shall be final and binding on the
parties to the arbitration, and may include an award of costs (including the
parties' legal and other costs). Any award rendered may be confirmed, judgment
upon any award rendered may be entered, and such award or the judgment thereon
may be enforced in any court of any state or country having competent
jurisdiction.
14.6 Notwithstanding the other provisions of this clause GTL may seek from any
court of competent jurisdiction any interim, provisional or injunctive relief
that may be necessary to protect the rights or property of GTL or maintain the
status quo during or after the pendency of the arbitration proceeding, subject
to the provisions of Article 13.2 of the Rules of the LCIA (but excluding
therefrom reference to paragraph (h) of Article 13.1 save in circumstances
where the relief sought from the Court has already been sought from and refused
by the arbitral tribunal). The institution and maintenance of any judicial
action or proceeding for any such interim, provisional or injunctive relief
shall not constitute a waiver of the right of any party to submit the dispute
to arbitration.
14.7 In the event that any or part of any arbitral award is unenforceable
outside the United Kingdom by reason of it granting injunctive relief or
specific performance (whether interim or final relief), the parties to the
arbitration agree that any of them shall be at liberty to apply to any court of
competent jurisdiction for identical relief and further agree that all
decisions of the arbitral tribunal giving rise to such relief shall be treated
by the parties to the arbitration as giving rise to res judicata between them
and may not be reopened by any of them.
15. Service of Proceedings
Each of the Alpha Companies irrevocably authorises and appoints Yakimov Andrey
of 7th Floor, Egginton House, 26-28 Buckingham Gate, London SW1E 6LD as its
agent for service of proceedings in relation to any matter arising out of or in
connection with this Agreement and service on such agent shall be deemed to be
service on the relevant Alpha Companies.
This Agreement has been duly executed by the parties on the date set out above.
- 10 -
SCHEDULE 1
Alpha Companies
1. Alpha-A Limited, a joint Stock Company incorporated and registered at
the Executive Committee of Kujbishevsky, Regional Council of Peoples
Deputies in Moscow on 24 October 1991 (registration number N6474)
whose official address is at 105023, Moscow, 27 Suvosovskaya Str.,
Building 27 (Fax no.: (007)(095) 290 3428).
2. Alpha-B Limited, a joint Stock Company incorporated and registered at
the Executive Committee of Kujbishevsky, Regional Council of Peoples
Deputies in Moscow whose official address is at 105023, Moscow, 27
Suvosovskaya Str., Building 27 (Fax no.: (007)(095) 290 3428).
3. Alpha-7 Limited, a joint Stock Company incorporated and registered at
the Executive Committee of Kujbishevsky, Regional Council of Peoples
Deputies in Moscow whose official address is at 105023, Moscow, 27
Suvosovskaya Str., Building 27 (Fax no.: (007)(095) 290 3428).
4. Alpha-K Limited, a joint Stock Company incorporated and registered at
the Executive Committee of Kujbishevsky, Regional Council of Peoples
Deputies in Moscow whose official address is at 105023, Moscow, 27
Suvosovskaya Str., Building 27 (Fax no.: (007)(095) 290 3428).
- 11 -
SIGNED by RICHARD BETHELL )
for and on behalf of )
GORANDEL TRADING LIMITED ) RICHARD BETHELL
in the presence of:- )
NEAL WATSON
SOLICITOR
C/O 10 SNOW HILL
LONDON EC1A 2AL
SIGNED by MIKHAIL GOLOVATOV )
for and on behalf of )
ALPHA-A LIMITED ) MIKHAIL GOLOVATOV
in the presence of:- )
NEAL WATSON
SOLICITOR
C/O 10 SNOW HILL
LONDON EC1A 2AL
SIGNED by MIKHAIL GOLOVATOV )
for and on behalf of )
ALPHA-B LIMITED ) MIKHAIL GOLOVATOV
in the presence of:- )
NEAL WATSON
SOLICITOR
C/O 10 SNOW HILL
LONDON EC1A 2AL
SIGNED by MIKHAIL GOLOVATOV )
for and on behalf of )
ALPHA-7 LIMITED ) MIKHAIL GOLOVATOV
in the presence of:- )
NEAL WATSON
SOLICITOR
C/O 10 SNOW HILL
LONDON EC1A 2AL
SIGNED by MIKHAIL GOLOVATOV )
for and on behalf of )
ALPHA-K LIMITED ) MIKHAIL GOLOVATOV
in the presence of:- )
NEAL WATSON
SOLICITOR
C/O 10 SNOW HILL
LONDON EC1A 2AL
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SERVICES AGREEMENT: ANNEXURE 1
Map of Relevant Area
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