21 December 2005
XXXXXXXXX TELECOMMUNICATIONS
INTERNATIONAL LIMITED
ORASCOM TELECOM HOLDING S.A.E.
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CO-OPERATION AGREEMENT
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THIS CO-OPERATION AGREEMENT (this "Agreement") is made on 21 December 2005 (the
"Effective Date")
BETWEEN:
XXXXXXXXX TELECOMMUNICATIONS INTERNATIONAL LIMITED, a company incorporated in
the Cayman Islands, having its registered office at Century Yard, Cricket
Square, Xxxxxxxx Drive, P.O. Box 2681 GT, Xxxxxx Town, Grand Cayman, British
West Indies and its correspondence address at 20/F, Xxxxxxxxx Telecom Tower, 99
Xxxxxx Xxx Road, Tsing Yi, Hong Kong ("HTIL"); and
ORASCOM TELECOM HOLDING S.A.E., a company established in accordance with the
laws of the Arab Republic of Egypt and with its principal place of business at
2005A Nile City Towers, Cornish El Nile, Ramlet Xxxxxxx, Cairo, Egypt ("OTH").
(HTIL and OTH are hereinafter referred jointly as "Parties" and individually as
"Party".)
WHEREAS:
(a) A fundamental basis for OTH's investment in HTIL is achievement of the
commercial, operational and technological synergies and other benefits
contemplated by this Agreement, especially as regards the supply of Network
Equipment and services.
(b) It is the Parties' mutual objective to achieve leadership in their
respective markets by building on their skills as well as their strengths
and knowledge in those markets.
(c) The Parties have agreed to enter into this Agreement to record their
intention to enter into mutually beneficial co-operation in accordance with
the terms and conditions set out in this Agreement.
NOW IT IS HEREBY AGREED as follows:
1. Objectives
1.1 The Parties desire to achieve commercial, operational and technological
synergies and other benefits and will co-operate in the areas set out in
Schedule 1 to this Agreement:
(a) to obtain the most favourable pricing and to maximise such other
benefits as can be extracted from suppliers;
(b) to share know-how and experience; and
(c) to share research and development.
1.2 The Parties will co-operate at all levels and make available appropriate
management team resources from their respective organizations to achieve
the objectives described in Clause 1.1 (the "Objectives").
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2. Steering Committee
2.1 The Parties shall establish a Steering Committee consisting of six members
no later than 30 days after the Effective Date. Each Party shall be
entitled to nominate three members to the Steering Committee and such
members shall be board level officers such as the Chief Executive Officer,
Executive Director or Chief Technology Officer of the relevant Party. Each
Party shall allow its committee members to appoint alternates.
2.2 Subject to the obligations set out in Clause 4, the role of the Steering
Committee shall be to:
(a) manage the overall strategy and scope of this Agreement including
regularly review the efficacy of the provisions hereof; and
(b) review any purchase orders issued to or any new purchasing
arrangements as regards Network Equipment entered into with suppliers
by each Party or its Group Members since the last Steering Committee
with a purchase value over US$2,000,000.00 or such other amounts as
determined by the Steering Committee from time to time.
2.3 The Steering Committee shall meet not less than once every two months or,
on an ad hoc basis, whenever requested by either Party. Meetings can be
held, or members of the Steering Committee can participate in a meeting, by
means of telephone conference, video conference or similar communications
equipment.
2.4 The Steering Committee shall use its best endeavours to agree on a joint
procurement process in accordance with Clause 4 not later than 60 days
after its first meeting.
2.5 Notwithstanding the establishment of the Steering Committee, the Parties
contemplate that co-operation between themselves shall be continuous and
shall occur on both a formal and informal basis.
3. Areas of Co-operation
3.1 In order to achieve the Objectives, the Parties agree to co-operate in
certain areas, including but not limited to:
(a) establishing a common data base with respect to their suppliers, which
would contain, among other things, information on technical
specifications and prices for Current Network Procurement Agreements
and Future Network Procurement Agreements except to the extent that
any legal obligation of the OTH Group or HTIL Group would be breached,
with the Parties agreeing to use their best endeavours to achieve this
result as regards Current Network Procurement Agreements;
(b) organizing joint communications to inform their suppliers of the
arrangements arising under this Agreement;
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(c) periodic meetings involving procurement specialists representing both
Parties to determine strategy and to implement such strategy on an
ongoing basis; and
(d) investigate options for aligning and exploiting synergies between them
as and when they arise, including the use of joint or co-branded
products targeting markets where they have controlled operations.
3.2 The Parties shall use their reasonable endeavours to negotiate in good
faith such other agreements as may be necessary to implement co-operation
in the areas set out in Schedule 1.
4. Vendors
4.1 The Parties shall on a regular basis identify and agree to a list of
vendors (each a "Vendor" and collectively the "Vendors") that supply
Network Equipment and services to entities within the OTH Group and HTIL
Group respectively and share information on the scale and timing of their
respective future requirements in the area of network procurement. Either
Party may identify additional Vendors by giving written notice to the other
Party to that effect.
4.2 The Parties shall jointly identify and contact Vendors considered as likely
sources of supply of Network Equipment and/or services. The Parties shall
also co-ordinate their communications with investors and other market
participants in order to notify them of the synergies and other benefits
being achieved as a result of the arrangements arising under this
Agreement.
4.3 Subject to commercial and operational conditions within a particular local
market, the Parties shall use their reasonable endeavours to maximize the
number of common Vendors with which each of them does business.
4.4 For all Future Network Procurement Agreements (or other legal instrument in
which the provision of supply is documented) each Party shall ensure that
such agreements permit disclosure of the terms and conditions of such
Network Procurement Agreements (including but not limited to all pricing
information) to the other Party or entities within the OTH Group or the
HTIL Group (as applicable), with the Parties agreeing to use their
reasonable endeavours to achieve this result as regards Current Network
Procurement Agreements (or other legal instrument in which the provision of
supply is documented).
4.5 Each Party shall as regards Future Network Procurement Agreements (or other
legal instrument in which the provision of supply is documented), with the
Parties agreeing to use their reasonable endeavours as regards Current
Network Procurement Agreements (or other legal instrument in which the
provision of supply is documented) to, include provisions (the "Required
Contractual Provisions") to the effect that the Vendors shall offer the
specified Network Equipment and/or services to the other Party or entities
within the OTH Group or HTIL Group (as applicable) according to terms and
conditions (including but not limited to unit pricing and volume discounts)
no less favourable than those set
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forth in such agreements adjusted to reflect local costs (such as for civil
engineering works or labour) prevailing in a particular market
OTH may agree from time to time to exclude market specific prices from the
Required Contractual Provisions for any market.
4.6 The Parties shall jointly approach Vendors to negotiate a discount sharing
arrangement based on the cumulative purchases by volume amount expressed in
U.S. dollars by both Parties from such Vendor. Such arrangement shall be
designed to extract discounts (the "Additional Volume Discounts") in
addition to whatever Party has agreed in its individual Network Procurement
Agreements.
The Parties agree that whatever Additional Volume Discounts are obtained as
a result of their joint efforts shall be shared by them on a pro rata basis
according to their respective contributions towards obtaining the
Additional Volume Discounts, with the details of this arrangement to be
determined by the Steering Committee.
4.7 Each Party shall, and shall procure that each of its Group Members shall,
exclude from a particular procurement procedure as regards a Future Network
Procurement Agreement any Vendor that does not agree to inclusion of the
Required Contractual Provisions until such time as such Vendor agrees in
writing to inclusion of the Required Contractual Provisions.
4.8 For the avoidance of doubt, the Parties acknowledge that the Required
Contractual Provisions or the Additional Volume Discounts may be documented
in a legal instrument separate from a specific Network Procurement
Agreement.
4.9 The Parties agree that Clauses 4.5 and 4.7 may not apply in relation to the
exceptional cases set out in Schedule 2 (the "Exceptional Cases"). The
Steering Committee may unanimously determine whether other situations
requiring performance of the Parties' obligations pursuant to Clauses 4.5
and 4.7 constitute and/or should be added to the list of Exceptional Cases
(the "Additional Exceptional Cases"). When determining whether or not an
Additional Exceptional Case exists the Steering Committee shall be guided
by the general principle that the obligations set out in Clauses 4.5 and
4.7 shall not apply to a particular Network Equipment procurement procedure
if performance of such obligations causes or would cause either Party to
suffer a material economic loss. Each Party shall use its best endeavours
to ensure that the OTH Group or the HTIL Group (as applicable) shall engage
in procurement procedures such that they do not constitute Exceptional
Cases or Additional Exceptional Cases.
The Parties further agree, to the extent that prevailing commercial and
economic conditions allow, to limit their purchase volumes from any Vendor
that does not agree to the Required Contractual Provisions in the event
that an Exceptional Case or an Additional Exceptional Case exists.
4.10 The provisions of this Clause 4 shall not apply to any Future Network
Procurement entered into within 15 days of the date on which this Agreement
is executed by the Parties.
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5. Costs
Each Party shall pay its own costs, charges and expenses incurred in
connection with negotiating, preparing and implementing this Agreement and
any transactions contemplated by it (including but not limited to any costs
of participating in the meetings of the Steering Committee or meetings of
procurement specialists).
6. Confidentiality
6.1 Each Recipient shall, during the term of this Agreement and for two years
thereafter, keep the confidentiality of any Confidential Information which
may be obtained under this Agreement in strict confidence. To this end,
each Recipient shall not, without the Disclosing Party's prior written
consent: (a) disclose any Confidential Information to any Third Party; or
(b) use any Confidential Information for any purpose other than as
specified in this Agreement.
6.2 The obligation of confidentiality under Clause 6.1 does not apply to:
(a) the disclosure of information to the extent required to be disclosed
by law, any stock exchange regulation or any binding judgment, order
or requirement of any court or other competent authority;
(b) information which is publicly available or becomes publicly available
(otherwise than as a result of a breach of this Clause 6);
(c) information within the possession of a Party prior to its being
furnished to such Party pursuant hereto, provided that the source of
such information was not known to be bound by a confidentiality
agreement with or other contractual, legal or fiduciary obligation of
confidentiality to the other Party with respect to such information;
(d) information that becomes available to a Party on a non-confidential
basis from a source other than the other Party, provided that such
source is not known to be bound by a confidentiality agreement with or
other contractual, legal or fiduciary obligation of confidentiality to
the other Party with respect to such information;
(e) the Parties agree in writing is not Confidential Information; or
(f) the disclosure of information by OTH to any other OTH Group Member or
by HTIL to any other HTIL Group Member.
6.3 Each Recipient shall inform its directors, officers and employees and its
bona fide professional consultants, advisors or auditors, or those of any
OTH Group Member or any HTIL Group Member (as the case may be), to whom it
provides Confidential Information, that such information is confidential
and shall instruct them:
(a) to keep it confidential; and
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(b) not to disclose it to any Third Party (other than those persons to
whom it has already been disclosed in accordance with the terms of
this Agreement).
The Recipient shall be responsible for any breach of this Clause 6 by the
person to whom it is disclosed.
6.4 For the purpose of this Agreement,
"Confidential Information" means any and all information disclosed by or on
behalf of the Disclosing Party (as defined below) to the Recipient (as
defined below) hereunder (whether before or after the date of this
Agreement, in writing, verbally or otherwise and whether directly or
indirectly), including but not limited to information regarding the
business and operations and agreements entered into by OTH Group Members or
HTIL Group Members (as applicable) and any analyses, compilations, notes,
studies, memoranda or other documents derived from, containing or
reflecting such information;
"Disclosing Party" means a Party that has disclosed Confidential
Information to the other Party under this Agreement;
"OTH Group Member", "HTIL Group Member" or a "Group Member" of a Party
means any subsidiary companies of OTH or HTIL, as the case may be, and "OTH
Group" and "HTIL Group" shall mean OTH or HTIL (as applicable) and the
group comprising all OTH Group Members and all HTIL Group Members
respectively;
"Recipient" means a Party that is a recipient of Confidential Information
from a Disclosing Party; and
"Third Party" means any third party except for directors, officers and
employees or bona fide professional consultants, advisors or auditors of
the Receiving Party who need to have access to Confidential Information for
the purpose of this Agreement.
6.5 Each Party acknowledges that a breach of this Clause 6 may cause the other
Party irreparable damage for which monetary indemnity may not be an
adequate remedy. Accordingly, in addition to other remedies that may be
available, either Party may seek and obtain injunctive relief against such
a breach or threatened breach in any relevant country.
7. Intellectual Property
It is understood by the Parties that this Agreement will not be intended to
develop any proprietary works containing any type of intellectual property
rights, and that neither Party shall be obliged to disclose or grant a
license of its know-how, patents, registered designs, utility models,
copyrights, database rights and topography rights (including any
applications for any of the foregoing and the right to apply therefore in
any jurisdiction) to the other Party unless and until otherwise agreed by
the Parties.
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8. Term and Termination
8.1 This Agreement shall commence on the Effective Date but (except for this
Clause 8, Clause 4.10 and Clauses 11 through 22) its performance shall be
conditional upon occurrence of the closing of the share purchase agreement
of even date herewith and entered into by and between, among others,
Xxxxxxxxx Whampoa Limited and OTH in accordance with its terms.
8.2 Each Party agrees that this Agreement may be terminated by either Party if
an Event of Default occurs in relation to the other Party. An Event of
Default means, in relation to a Party, the occurrence of any of the
following:
(a) a court of competent jurisdiction makes an order or a resolution is
passed, for the dissolution or administration of that Party otherwise
than in the course of a reorganization or restructuring undertaken for
such purpose previously that is approved in writing by the other Party
(such approval not to be unreasonably withheld or delayed);
(b) any person takes any step (and it is not withdrawn or discharged
within ninety (90) days) to appoint a liquidator, manager, receiver,
administrator, administrative receiver or other similar officer in
respect of any assets held by that Party;
(c) that Party makes or proposes any arrangement or composition with, or
any assignment for the benefit of, its creditors; or
(d) that there is a change of control of the other Party in favour of a
Telecommunications Operator. For this purpose, "control" of the other
Party means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of the
other Party, whether through the ownership of voting securities, by
contract or otherwise.
8.3 HTIL may terminate this Agreement by giving written notice to OTH at any
time after OTH ceases to hold or control, directly or indirectly, at least
12% of the issued share capital of HTIL.
8.4 For the purpose of this Agreement "Telecommunications Operator" means any
person who owns or operates mobile or fixed line telecommunications
networks or infrastructure or provides mobile, fixed line
telecommunications, IDD or Internet services or who is a mobile virtual
network operator or who is a re-seller of such services in any jurisdiction
9. Consequences of Termination
9.1 Any termination of this Agreement shall not affect a Party's accrued rights
and obligations at the date of termination.
9.2 Immediately after the expiration or termination of this Agreement, each
Recipient shall: (i) no longer use any Confidential Information (except for
the information
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described in Clauses 3.1(a) and 4); and (ii) at the option and instruction
of the Disclosing Party, return promptly to the Disclosing Party and/or
destroy all Confidential Information (except for the information described
in Clauses 3.1(a) and 4) in its possession which is in a tangible or
electronic form and all copies of such material.
9.3 The provisions of Clauses 6, 9, 18 and 22 shall survive any termination of
this Agreement and shall continue in full force and effect.
10. Further Assurances and Good Faith
So far as it is legally able, each Party undertakes with the other to
exercise all voting rights and powers (direct and indirect) available to it
to ensure that the provisions of this Agreement are completely and
punctually fulfilled, observed and performed and generally that full effect
is given to the principles set out in this Agreement and to act reasonably
and in good faith towards each other in the exercise of its rights and the
discharge of its obligations hereunder.
11. Non-Assignment
Neither Party may, nor may purport to, assign any of its rights or
obligations under this Agreement in whole or in part, nor grant, declare,
create or dispose of any right or interest in it (otherwise than in
accordance with the terms of this Agreement) without the prior written
consent of the other Party, which consent shall not be unreasonably
withheld if the proposed assignment is to a directly or indirectly wholly
owned Affiliate of such Party.
For the purpose of this Agreement "Affiliate" means, with respect to any
Person which is a company, its subsidiaries and holding companies and any
subsidiaries of such holding companies, and with respect to any Person
which is not a company, any other Person directly or indirectly
controlling, controlled by, or under common control with, such Person;
provided that, for the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlled by" and "under common
control with"), as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of
the management and policies of such Person, whether through the ownership
of voting securities, by contract or otherwise.
12. Waiver of Rights
No waiver by either Party of a failure by the other Party to perform any
provision of this Agreement operates or is to be construed as a waiver in
respect of any other failure whether of a like or different character.
13. Amendments
A variation of this Agreement is valid only if it is in writing and signed
by or on behalf of each Party.
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Every three (3) years after the Effective the Parties shall review and, if
necessary, agree in good faith any appropriate amendments to the terms of
this Agreement to ensure that the Objectives are achieved by implementation
of the terms hereof.
14. Invalidity
If any provision of this Agreement is or is held to be invalid or
unenforceable, then so far as it is invalid or unenforceable it has no
effect and is deemed not to be included in this Agreement. This shall not
invalidate any of the remaining provisions of this Agreement. The Parties
shall then use all reasonable endeavours to replace the invalid or
unenforceable provision by a valid provision the effect of which is as
close as possible to the intended effect of the invalid or unenforceable
provision.
15. No Partnership or Agency
15.1 Nothing in this Agreement (or any of the arrangements contemplated by it)
shall be deemed to constitute a partnership between the Parties nor, save
as may be expressly set out in it, constitute either Party the agent of the
other Party for any purpose.
15.2 Unless the Parties agree otherwise in writing neither of them shall:
(a) enter into contracts with third Parties as agent for the other Party;
or
(b) describe itself a such an agent or in any way hold itself out as being
such as agent.
15.3 For the avoidance of doubt but subject to Clause 7, nothing contained in
this Agreement shall restrict or prevent any Party from developing and
introducing technology and services, or from exchanging intellectual
property and know-how, with any third Party.
16. Announcements
16.1 No formal public announcement or press release in connection with the
signature or subject matter of this Agreement shall (subject to Clause
16.2) be made or issued by or on behalf or either Party without the prior
written approval of the other Party (such approval not to be unreasonably
withheld or delayed).
16.2 If a Party has an obligation to make or issue any announcement required by
law or by any stock exchange or by any governmental authority, the relevant
Party shall give the other Party every reasonable opportunity to comment on
any announcement or release before it is made or issued (provided that this
shall not have the effect of preventing the Party making the announcement
or release from complying with its legal and/or stock exchange
obligations).
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17. Entire Agreement
17.1 This Agreement sets out the entire agreement and understanding between the
Parties with respect to the subject matter hereof.
17.2 Neither Party has relied on or has been induced to enter into this
Agreement in reliance on any representation, warranty or understanding
which is not set out in this Agreement.
18. Notices
18.1 Any notice or other formal communication to be given under this Agreement
shall be writing and signed by or on behalf of the Party giving it. It
shall be:
(a) sent by facsimile to the number set out in Clause 18.2; or
(b) delivered by hand or sent by prepaid recorded delivery or registered
post to the relevant address in Clause 18.2.
In each case it shall be marked for the attention of the relevant Party set
out in Clause 18.2 (or as otherwise notified from time to time under this
Agreement). Any notice given by hand delivery, facsimile or post shall be
deemed to have been duly given:
(a) if hand delivered, when delivered;
(b) if sent by facsimile, twelve (12) hours after the time of dispatch;
(c) if sent by recorded delivery or registered post, at 10 am on the
second Business Day from the date of posting.
Unless there is evidence that it was received earlier than this and
provided that, where (in the case of delivery by hand or by facsimile) the
delivery or transmission occurs after 6 pm on a Business Day or on a day
which is not a Business Day, service shall be deemed to occur at 9:00 am on
the next following Business Day. References to time in this Clause are to
local time in the country of the addressee.
For the purposes of this Clause, a Business Day means a day which is not a
Saturday, Sunday or public holiday on which banks are open for general
banking business in Hong Kong and Cairo, Egypt.
18.2 The addresses and facsimile numbers of the Parties for the purpose of
Clause 18.3 are:
(a) HTIL
Address: 00xx Xxxxx, Xxxxxxxxx Xxxxx, 00 Xxxxxxxx Xxxx,
Xxxx Xxxx
Facsimile No: (000)0000 0000
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For the attention of: The Company Secretary
With copy to:
Address: 20/F Xxxxxxxxx Telecom Tower,
99 Xxxxxx Xxx Road,
Tsing Yi, Hong Kong
For the attention of: Executive Director
(b) OTH
Address: 2005A Nile City Towers,
Cornish El Nile,
Ramlet Xxxxxxx,
Cairo, Egypt
Facsimile No: (000)000 0000
For the attention of: Chief Technology Officer
With copy to:
Address: 2005A Nile City Towers,
Cornish El Nile,
Ramlet Xxxxxxx,
Cairo, Egypt
Facsimile No: (000)000 0000
For the attention of: Legal Department
18.3 All notices or formal communications under or in connection with this
Agreement shall be in the English language or, if in any other language,
accompanied by a translation into English. In the event of any conflict
between the English text and the text in any other language, the English
text shall prevail.
19. Third Party Rights
A person who is not a Party to this Agreement shall have no rights under
the contracts (Rights of Third Parties) 1999 Act.
20. Counterparts
This Agreement may be executed in any number of counterparts and by the
Parties to it on separate counterparts, each of which shall be an original
but all of which together shall constitute one and the same instrument.
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21. Representations and Warranties
Each Party hereby represents and warrants to the other Party as of the date
of this Agreement that each of the warranties and representations in this
Clause 21 is true and accurate in all respects and not misleading as at the
date of this Agreement:
(a) Such Party is a corporation duly organised, validly existing and in
good standing under the laws of the jurisdiction of its incorporation.
(b) Such Party is not in receivership or liquidation nor has it taken any
step to enter liquidation, and no petition has been presented for
winding up such Party. There are no grounds on which a petition or
application could be based for the winding up or appointment of a
receiver of such Party.
(c) Such Party has the corporate power and authority to execute, deliver
and perform its obligations under and consummate the transactions
contemplated under this Agreement.
(d) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorised by the directors and, to the extent required, shareholders
of such Party and no other corporate or shareholder action on the part
of such Party or its shareholders is necessary to authorise the
execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby.
(e) This Agreement, when delivered in accordance with the terms hereof,
assuming the due execution and delivery of this Agreement, shall have
been duly executed and delivered by such Party and shall be valid and
binding obligations of such Party enforceable against such Party in
accordance with its terms, except to the extent that its
enforceability may be subject to applicable bankruptcy, insolvency,
reorganisation, moratorium or similar laws affecting the enforcement
of creditors' rights generally or to general equitable principles.
(f) The entry into and performance of this Agreement will not constitute a
breach such Party or default under: (i) any provision of the
organisational documents of such Party; (ii) any legally binding
obligation or any material agreement or undertaking or the terms of
any guarantee by which such Party is bound; or (iii) any law
applicable to such Party.
(g) No action or proceeding has been instituted or, so far as such Party
is aware, threatened before a court or other governmental authority to
restrain or prohibit or materially delay any of the transactions
contemplated by this Agreement.
Each Party's representations and warranties shall be separate and
independent and (unless expressly provided otherwise) shall not be limited
by reference to any other representation and warranty or by anything in
this Agreement.
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Each Party acknowledges that it is entering into this Agreement on the
basis of and in reliance upon the other Party's representations and
warranties.
22. Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of England and Wales.
Any dispute arising between the Parties in connection with this Agreement,
including any question regarding its existence, validity or termination,
shall be referred to the Steering Committee for resolution. If the Steering
Committee is unable informally to resolve such dispute to the mutual
satisfaction of the Parties within 30 days such dispute shall be referred
to and finally resolved by arbitration under the Rules of Arbitration of
the International Chamber of Commerce (the "Rules"), which Rules are deemed
to be incorporated by reference into this clause. The number of arbitrators
shall be three. Each Party shall nominate one arbitrator in accordance with
the Rules. The Parties shall attempt to reach agreement on the third
arbitrator, who shall act as chairman of the Arbitral Tribunal. If such
agreement is not reached within 15 days of the Respondent's nomination of
the second arbitrator, the third arbitrator shall be appointed by the
International Chamber of Commerce in accordance with the Rules. The place
of arbitration shall be London, England. The language of the arbitral
proceedings shall be English.
IN WITNESS whereof this Agreement has been entered into the day and year first
written above.
SIGNED by )
for and on behalf of )
Xxxxxxxxx Telecommunications International ) /s/ [Illegible]
Limited )
SIGNED by )
for and on behalf of )
Orascom Telecom Holding S.A.E. )
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Each Party acknowledges that it is entering into this Agreement on the
basis of and in reliance upon the other Party's representations and
warranties.
22. Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of England and Wales.
Any dispute arising between the Parties in connection with this Agreement,
including any question regarding its existence, validity or termination,
shall be referred to the Steering Committee for resolution. If the Steering
Committee is unable informally to resolve such dispute to the mutual
satisfaction of the Parties within 30 days such dispute shall be referred
to and finally resolved by arbitration under the Rules of Arbitration of
the International Chamber of Commerce (the "Rules"), which Rules are deemed
to be incorporated by reference into this clause. The number of arbitrators
shall be three. Each Party shall nominate one arbitrator in accordance with
the Rules. The Parties shall attempt to reach agreement on the third
arbitrator, who shall act as chairman of the Arbitral Tribunal. If such
agreement is not reached within 15 days of the Respondent's nomination of
the second arbitrator, the third arbitrator shall be appointed by the
International Chamber of Commerce in accordance with the Rules. The place
of arbitration shall be London, England. The language of the arbitral
proceedings shall be English.
IN WITNESS whereof this Agreement has been entered into the day and year first
written above.
SIGNED by )
for and on behalf of )
Xxxxxxxxx Telecommunications International )
Limited )
SIGNED by Xxxxxx Xxxxxxx ) /s/ Xxxxxx Xxxxxxx
for and on behalf of )
Orascom Telecom Holding S.A.E. )
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SCHEDULE 1
I. Procurement:
o Data services architecture and solutions
o Network infrastructure
o IT systems and platforms
o Handset, SIM and accessories
II. Technologies and Networks:
o Technology research and applications
o Emerging radio technologies (WiFi, WiMAX, UWB, DVB-H
etc)
o IP evolution (IP Core, VoIP, IP Interworking, Managed
QoS, IPv6 etc)
o Services standard (DRM, MBMS, OMA, QoS)
o Network Performance and Capacity
o Network performance benchmarking
o Sharing of capacity and performance enhancements
techniques
o Sharing of performance monitoring systems and
practices
o Indoor coverage techniques
o Vendor Management
o Sharing of vendors roadmaps
o Establishing common user group to pursue the best
support from vendors
III. IT, Services and Contents:
o IT system architecture
o Billing and Customer Care
o Enterprise Support System (ESS)
o Business Support System (BSS)
o Fraud management and security
o Provisioning, mediation, billing and collections
o Revenue Assurance
o Local and international messaging (SMS, EMS, MMS)
o Multimedia service architecture
o Content and service delivery platforms
o Application enabling platforms and solutions
o Roaming and settlement
o Sharing of global contents (subject to agreements)
o Cross licensing of technologies, solutions and contents
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IV. International Business
o Optimized voice and data routing through the Parties' (e.g.,
HGC's) existing networks and points of presence
o Common messaging peering and settlement services
o Preferential roaming treatment among the Parties' respective
operations
o Preferential international call rating
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SCHEDULE 2
Exceptional Cases
Market Conditions
1. Cases where fewer than two suitably qualified Vendors are present and
bidding for the project in the market.
2. Markets where a Vendor identity's is politically sensitive or its
activities restricted by applicable law.
3. When the insertion of the Required Contractual Provisions results in a
breach of applicable law, including, for the avoidance of doubt,
breach of a fiduciary duty owed by a member of the board of directors
of a particular company within the OTH Group or the HTIL Group (as
applicable).
4. Markets where potential growth is limited in comparison with the
installed network, thereby making it operationally unreasonable to
introduce a new vendor.
Existing Benefits Prejudiced
5. Purchases in relation to future network expansion phases that as of
the date hereof are both planned and subject to a legally binding
commitment, where the aggregate volume of the purchases has
demonstrably been a fundamental consideration of the vendor during the
negotiation of such agreement.
6. Purchases for equipment with prices fixed under existing agreements,
including frame agreements, unless more a favorable price is
introduced as a result of the Required Contractual Provisions or the
Additional Volume Discounts.
Natural Expansion
7. Purchases for capacity and functionality upgrades that apply existing
installed nodes (e.g., adding racks/modules/cards to an existing MSC
or BSC etc.)
8. Purchases or agreements for MSC/BSC/BTS and other central switching
equipment (Network Equipment prices only; for the avoidance of doubt,
this means that the cost of civil works shall be excluded) with a
scale smaller than US$2,000,000.00.
For the purpose of this Agreement,
"BSC" (Base Station Controller) means equipment that monitors and controls one
or more base stations in order to exchange messages, handover mobile units from
cell to cell, and perform other system administrative tasks;
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"BTS" (Base Transceiver Station) means fixed transmitter/receiver equipment in
each cell of a mobile telecommunications network that communicates by radio with
all mobile telephones in that cell;
"HLR" (Home Location Register) means the database in charge of managing mobile
phone subscribers that holds all pertinent subscriber information, such as the
telephone number, handset serial number, long-distance carrier, and customer
features;
"IN" (Intelligent Network) means network infrastructure that is for the purpose
of real time call control and credit rating;
"MSC" (Mobile Switching Centre) means a large, computer-based device used to
connect calls within a mobile network and as the interface of the cellular
network to other networks;
"Network Equipment" means any equipment used in the mobile telephone network,
including but not limited to:
(a) the core network: MSC/VLR/HLR;
(b) the access network: BSC/TRAU and BTS;
(c) transmission: PDH and SDH;
(d) Intelligent Network;
(e) UTRAN; and
(f) Packet switching equipment.
"Network Procurement Agreement" means any agreement for the procurement of
Network Equipment ("Current Network Procurement Agreement" means a Network
Procurement Agreement pursuant to which a supplier is, as at the Effective Date,
continuing to supply Network Equipment and "Future Network Procurement
Agreement" means a Network Procurement Agreement entered into by a Party at a
date after the Effective Date.)
"PDH" (Plesiochronous Digital Hierarchy) means a digital transmission method
based on dividing information up into identical time intervals;
"SDH" (Synchronous Digital Hierarchy) means a method of telephony transmission
using digital techniques where data is packed in containers which are
synchronised in time;
"TRAU" (Transcoder Rate and Adapter Unit) means a technology whereby an encoded
speak signal from a mobile station is transcoded;
"UTRAN" means a UMTS (Universal Mobile Telecommunications System) radio access
network.
"VLR" (Visitor Location Register) means a temporary database that contains
pertinent subscriber information for wireless users that are roaming.
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