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VIA NET WORKS INC
·
8-K
Sep 1, 1:19 PM ET
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VIA NET WORKS INC 8-K
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Contents
9
(a) Provider shall provide the services set out in Schedule 1 hereto to Recipient and Subs. It shall also provide advice, support and assistance to the boards of directors (which term, for the purposes of this Agreement, in relation to entities which are not English companies, shall be deemed to include all bodies and boards constituted in relation to those entities with
analogous or similar rights and duties) of Recipient and the Subs in relation to (i) the management of the business and business relationships of the Subs, including maintaining relationships with, providing services to or receiving services from and making payments to and receiving payments from customers, vendors, suppliers and other persons with whom the Subs do business, (ii) continuing the operations of Recipient’s and the Subs’ network, facilities, “back office” operations and technical personnel, (iii) overseeing the Subs’ sales force, distributors, marketing and similar matters, and (iv) continuing the other aspects of the Subs’ business and operations. Provider shall provide such personnel as are necessary in order to properly conduct and provide the Management Consultancy Services. In performing the Management Consultancy Services, Provider shall give consideration as to whether it would be appropriate for the Subs or any of them to enter into new or amended business arrangements with customers, vendors, suppliers and other persons with whom such entity does business (always having regard to the importance of maintaining the Subs’ business and relationships in good and proper standing in the ordinary course). Provider shall also give consideration as to whether it would be appropriate for the Subs or any of them to outsource any part of Recipient’s or the Subs’ business operations to Provider or another third party provider pursuant to a written contract on commercially reasonable terms and conditions.
(b) Provider shall provide advice, support and assistance in relation to the actions required to reconfigure circuits and other network components; restructure “back office” operations; hire, reassign, or terminate employees and contractors; amend or otherwise alter customer agreements on behalf of a Sub as it considers reasonably necessary or desirable to reduce operating costs of Recipient or the Subs. In anticipation of the completion of the Purchase Agreement, Provider shall provide advice, support and assistance in relation to the actions required to make Recipient’s operations function more efficiently in conjunction with those of Provider whilst maintaining all existing critical or significant functions and the level of Recipient’s business and its customer relationships in good and proper standing in the ordinary course.
(c) For the avoidance of doubt, in performing Management Consultancy Services hereunder, Provider shall have no authority to make any decisions or take any action for and on behalf of Recipient or any Sub or to otherwise bind or commit Recipient or any Sub.
(a) Due Formation. Such party (i) is a corporation formed, and validly existing under the laws of the jurisdiction noted in the introductory paragraph above, (ii) has the requisite corporate power and corporate authority to own its properties and carry on its business as now being conducted and currently proposed to be conducted and to execute, deliver and perform its obligations under this Agreement, and (iii) is qualified to do business in every jurisdiction in which failure so to qualify would be reasonably likely to have a material adverse effect on the business, operations or conditions (financial or otherwise) of the party.
(b) Authorization; Enforceability. Such party has taken all action necessary to authorize it to execute, deliver and perform under this Agreement. This Agreement constitutes a legal, valid and binding obligation of the party enforceable in accordance with its terms, subject to bankruptcy, reorganization, moratorium or other similar laws affecting the enforcement of the rights of creditors generally and subject to general principles of equity.
(c) No Conflict. The execution, delivery and performance by such party of this Agreement does not and will not (i) violate in any material respect any legal requirements applicable to the party, (ii) result in any material breach of the party’s constituent documents or (iii) conflict with, violate or result in a breach of or constitute a default under any agreement or instrument to which the party or any of its properties or assets are bound or result in the imposition or creation of any lien or security interest in or with respect to any of the party’s property or assets.
(d) No Authorization. No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (other than those which have been obtained) is required for the due execution, delivery and performance by such party of this Agreement.
(e) Litigation. Such party is not a party to any legal, administrative, arbitration, or other proceeding, or, to the party’s knowledge, is such a proceeding threatened, which, if decided adversely to the party, would materially and adversely affect the party’s ability to perform under this Agreement.
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