EXHIBIT 10.1
Option Agreement
OPTION AGREEMENT
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This option agreement (the ,,Option Agreement") is entered into as of January
28, 2002, between:
1. Cybernet Internet Dienstleistungen AG
Stefan-George-Ring 19-23, D-81929 Munich
(,,Cybernet")
and
2. Telehouse Deutschland GmbH
Hanauer Landstra(beta)e 316-320, D-60314 Frankfurt/Main
("Telehouse")
(1. and 2., also, individually a "Party", collectively the "Parties")
Preamble
1. Cybernet is engaged in the internet service providing business and
leases premises - which are not owned by Cybernet - for data-centers
in Frankfurt, Hamburg and Munich (individually, a "Data-Center" and
collectively, the "Data-Centers"). Cybernet is leasing the premises as
lessee on the basis of (i) a lease agreement concerning the Frankfurt
Data Center with GIP Gewerbe im Park GmbH ("GIP") dated June 7/11,
1999 taken over by Deutsche Immobilien Fonds AG ("DIFA") on the basis
of a unilateral transaction dated November 23, 1999 and amended by
supplement between Cybernet, DIFA and Telehouse Deutschland GmbH
("Telehouse"), a company with its registered office at Hanauer
Landstra(beta)e 316-320, 60314 Frankfurt, dated September 1, 2000 (the
"Frankfurt Lease Agreement"), (ii) a lease agreement concerning the
Munich Data Center with DIFA dated June 30/July 7, 1999 amended by the
supplement between Cybernet, DIFA and Telehouse dated November 1,
2000/February 15, 2001 (the "Munich Lease Agreement"), (iii) a lease
agreement concerning the Hamburg Data Center with DIFA dated January
27, 1999 amended by the supplement between Cybernet, DIFA and
Telehouse dated October 18/November 1/December 4, 2000 (the "Hamburg
Lease Agreement"), (collectively, the "Lease Agreements"). Cybernet
also owns hardware and has equipped the Data-Centers with such
hardware in order to let the Data-Centers to third parties.
2. Telehouse operates (i) the Frankfurt Data-Center as a lessee on the
basis of a data-center operating agreement with Cybernet dated August
30, 2000 amended by a supplement dated July 2, 2001 (the "Frankfurt
Data-Center Agreement"), (ii) the Munich Data-Center on the basis of a
data-center operating agreement with Cybernet dated September 29,
2000, amended by a supplement dated July 2, 2001 (the "Munich
Data-Center Agreement"), and (iii) the Hamburg Data-Center on the
basis of a data-center operating agreement with
Cybernet dated September 29, 2000 (the "Hamburg Data-Center
Agreement"), (collectively, the "Data-Center Agreements").
3. Cybernet leases back from Telehouse co-location areas on the basis of a
data center service agreement of July 13, 2001 regarding premises in
the Data Centers in Frankfurt and Munich (the "Data Center Service
Agreement"), which shall not be affected by this Agreement.
4. The purpose of this Option Agreement is to oblige Cybernet for a
limited period of time, as stipulated in this Option Agreement, to
enter into a Receivables and Asset Purchase and Transfer Agreement
(,,Purchase Agreement") with Telehouse, an entity affiliated with
Telehouse or any third party designated by Telehouse (the
"Purchaser"). Cybernet shall enter into this Purchase Agreement so
that title and possession of all assets and equipment, furniture and
fixtures as currently used by Telehouse for the carry on of the
business of operating the Data-Centers and which are located in the
Data-Centers, and the complete documentation relating thereto (the
"Assets") shall be transferred to the Purchaser, or with respect to
the possession of the Assets in the event the Purchaser is not
Telehouse to Telehouse, who will then continue to operate the
Data-Centers on a basis of (i) a lease of the Assets with the
Purchaser, and (ii) lease agreements with DIFA directly, eliminating
Cybernet as a party to the previously concluded Lease Agreements.
Section 1
Option
Subject to the terms and conditions of this Option Agreement, Cybernet grants
Telehouse the option to request Cybernet to enter into and perform the Purchase
Agreement as described in more detail below upon execution of the option within
the exercising period as defined below ("Option").
Section 2
Exercising of Option
1. The period during which Telehouse may exercise the Option shall start
with the signing of this Option Agreement and shall expire March 31,
2002, 12:00 Frankfurt time.
2. Exercising of the Option shall be in writing to Cybernet at the address
given above.
Section 3
Contents of the Purchase Agreement
1. The Purchase Agreement shall have a content as stipulated by Telehouse
within the limits as set out below:
1.1 Enabling the Purchaser instead of Cybernet to provide such services
and performances which heretofore Cybernet has effected for
Telehouse.
Cybernet shall transfer title (Eigentum) to the Assets and any other
rights (including inchoate rights (Anwartschaftsrechte)) with regard to
the Assets to the Purchaser and assigns to the Purchaser his claims for
delivery of the Assets under ss. 931 German Civil Code. The
Purchaser shall accept the transfer of title to the Assets subject to
the fulfillment of the closing conditions stipulated in the Purchase
Agreement.
1.2 Cybernet shall provide for the transfer of possession (Besitz) of the
Assets to the Purchaser, or in the event Telehouse is not the
Purchaser, to Telehouse.
1.3 Cybernet shall enter into a termination agreement with (i) Telehouse
concerning the termination of all Data-Center Agreements, such
termination to take effect on November 30, 2001 at 12:00 o'clock p.m.
(the "Effective Date"), and (ii) into a termination agreement with DIFA
with respect of each of the Lease Agreements, in order to enable
Telehouse to enter into direct lease agreements with DIFA, thus
excluding the possibility for Cybernet to remain party or beneficiary
of those leases.
1.4 The consideration to be paid by the Purchaser to Cybernet for the
termination of the Data-Center Agreements and the termination of the
Lease Agreements between Cybernet and DIFA as well as the sale and
transfer of the Assets shall be calculated on the basis of a purchase
price in the amount of (euro) 33.591.877 as of December 1, 2001 (the
"Initial Purchase Price") less (i) monthly (net) payments under the
Data-Center Agreements since December 2001 until the Closing Date, (ii)
the advanced payment in the amount of (euro) 1.120.690 according to
Section 4.1 below, plus (i) interest on the Initial Purchase Price
since December 1, 2001 until the Closing Date at a rate of 5% p.a.,
(ii) monthly payments from Cybernet to DIFA under the Lease Agreeements
since December 1, 2001 until the Closing Date, and (iii) any applicable
VAT.
2. In its provisions the Purchase Agreement shall correspond with the
basic structure and the basic provisions of the draft Receivables and
Asset Purchase and Transfer Agreement, which is attached as a
non-binding example as Exhibit 1, except for the provisions mentioned
in this clause. Telehouse may request from Cybernet additions to, or
alterations of, the provisions of the attached Purchase Agreement to
be concluded by Cybernet with the Purchaser as reasonably requested by
the Purchaser taking into account the respective interests of the
Parties by finalizing the transaction as described in the preamble.
The Purchase Agreement shall not materially deviate in its provisions
from the content of Sections 5, 6, 7, 8, 9, 10, 14 of the attached
non-binding example which to this extent is explicitly binding. The
Parties acknowledge that any reference to sections of the German Civil
Code may be adjusted to reflect the changes of the Code itself.
Section 4
Payment upon Signing
1. At the signing of this Option Agreement, Telehouse shall pay to
Cybernet a deposit in the amount of (euro) 1.120.690 plus applicable
VAT, resulting in a total amount of (euro) 1.300.000 (Euro one million
three hundred thousand).
2. In the event, Telehouse duly exercises the Option, and the Purchase
Agreement is entered into by Cybernet, the consideration as defined in
Section 1.4 above, shall be reduced by the amount of (euro) 1.120.690.
3. In the event, Telehouse does not duly exercise the Option, and the
Purchase Agreement is not entered into by Cybernet, the aforesaid
deposit amount of (euro) 1.120.690 shall be set-off against the monthly
fee (net) payments to be made by Telehouse to Cybernet under the
Data-Center Agreements, for the months of April and May 2002.
Section 5
Governing Law, Jusrisdiction
1. This Option Agreement shall be governed exclusively by German law and
construed in accordance with the laws of the Federal Republic of
Germany without regard to the conflicts of laws rules and the United
Nations Convention on the International Sale of Goods.
2. The regional court of Frankfurt am Main shall have exclusive
jurisdiction of any case or controversy arising under or in connection
with this Option Agreement.
Section 6
In-writing requirement, Exhibits
1. Any amendment or supplement to this Option Agreement must be in
writing. This also applies to this section 6.
2. Any and all Exhibits are part of this Option Agreement.
Section 7
Penalty Provision
In the event the obligations of Cybernet described above arising out of
this Option Agreement are not duly met, particularly, but not limited to,
in case the Purchase Agreement or any other ancillary agreements described
in the Preamble are not duly entered into by Cybernet, it shall be obliged
to pay the sum of (euro)300.000 to Telehouse within one month of refusing
or not reacting to a demand by Telehouse to enter into a Purchase Agreement
as presented by Telehouse, subject to the condition that the Purchase
Agreement presented by Telehouse corresponds to the requirements set out in
this Option Agreement. The same applies for a refusal by Cybernet to
perform any other duty stipulated by this Option Agreement. Notwithstanding
the foregoing contractual penalty, Telehouse shall be entitled to any
damages which may occur due to a breach of this Option Agreement by
Cybernet.
Frankfurt, January 28, 2002
Cybernet Internet Dienstleistungen AG Telehouse Deutschland GmbH
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Andreas Eder, Vorstand
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Thomas Stoek, Vorstand