<PAGE>
<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 13, 1997
REGISTRATION NO. 333-38339
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
ICON CMT CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C> <C>
DELAWARE 7373 13-3603128
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
1200 HARBOR BLVD.
WEEHAWKEN, NEW JERSEY 07087
(201) 601-2000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
SCOTT A. BAXTER
PRESIDENT
ICON CMT CORP.
1200 HARBOR BLVD.
WEEHAWKEN, NEW JERSEY 07087
(201) 601-2000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES OF COMMUNICATIONS TO:
<TABLE>
<S> <C>
MICHAEL WEINSIER, ESQ. KRIS F. HEINZELMAN, ESQ.
PARKER CHAPIN FLATTAU & KLIMPL, LLP CRAVATH, SWAINE & MOORE
1211 AVENUE OF THE AMERICAS WORLDWIDE PLAZA
NEW YORK, NEW YORK 10036 825 EIGHTH AVENUE
TELEPHONE NO.: (212) 704-6000 NEW YORK, NEW YORK 10019
FACSIMILE NO.: (212) 704-6288 TELEPHONE NO.: (212) 474-1000
FACSIMILE NO.: (212) 474-3700
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this registration statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] _________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] _________
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] _________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
________________________________________________________________________________
<PAGE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses, other than underwriting
discounts and commissions, in connection with the issuance and distribution of
the securities being registered hereby. All such expenses will be borne by the
registrant; none shall be borne by any selling stockholder.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee....................................... $17,424.24
NASD filing fee........................................................................... 6,250.00
Nasdaq listing fees....................................................................... *
Legal fees and expenses................................................................... *
Accounting fees and expenses.............................................................. *
Transfer agent fees....................................................................... *
Printing and engraving expenses........................................................... *
Miscellaneous............................................................................. *
----------
Total................................................................................ $ *
----------
----------
</TABLE>
- ------------
* To be supplied by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS.
Section 145 of the General Corporation Law of Delaware provides that
directors, officers , employees or agents of Delaware corporations are entitled,
under certain circumstances, to be
indemnified against expenses (including attorneys' fees) and other liabilities
actually and reasonably incurred by them in connection with any suit brought
against them in their capacity as a director, officer, employee or agent, if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation, and with respect to any
criminal action or proceeding, if they had no reasonable cause to believe their
conduct was unlawful. Section 145 also provides that directors, officers,
employees and agents may also be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by them in connection with a
derivative suit bought against them in their capacity as a director, officer,
employee or agent, as the case may be, if they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests of
the corporation, except that no indemnification may be made without court
approval if such person was adjudged liable to the corporation.
Article Ninth of the Restated Certificate of Incorporation provides that
the registrant shall indemnify any and all persons whom it shall have power to
indemnify to the fullest extent permitted by the General Corporation Law of
Delaware. Article VII of the Restated By-laws provides that the registrant shall
indemnify authorized representatives of the registrant to the fullest extent
permitted by the General Corporation Law of Delaware. The Restated By-laws also
permit the registrant to purchase insurance on behalf of any such person against
any liability asserted against such person and incurred by such person in any
capacity, or out of such person's status as such, whether or not the registrant
would have the power to indemnify such person against such liability under the
foregoing provision of the Restated By-laws.
Section 7 of the Underwriting Agreement (Exhibit 1.1) provides for
indemnification by the underwriters of directors, officers and controlling
persons of the registrant for certain liabilities, including certain liabilities
under the Securities Act of 1933, under certain circumstances.
The Company maintains a directors and officers liability insurance policy
with . The policy insures the directors and
officers of the Company against loss arising from certain claims made against
such directors or officers by reason of certain wrongful acts. The policy
provides combined limit of liability of $ per policy year for both
directors' and officers' liability coverage at an annual premium of $ .
II-1
<PAGE>
<PAGE>
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
(a) On May 30, 1997, the registrant effected a 6 for 1 stock split of its
Common Stock. For each share of Common Stock outstanding on May 30, 1997, the
holder thereof received six shares of Common Stock.
(b) In January 1996, the Company sold 422,607 shares of Series A
Convertible Participating Preferred Stock, par value $.01 per share ('Series A
Preferred Stock'), at $23.33 per share, each of which is convertible into shares
of Common Stock at a price of $6.02 per share, and issued between January and
March 1996 five-year warrants to purchase 15,635 shares of Common Stock at an
exercise price of $.01 per share.
Between May 1997 and September 1997, the Company sold 180,240 shares of 10%
PIK Series B Convertible Participating Preferred Stock, par value $.01 per share
('Series B Preferred Stock'), at $100.00 per share, each of which is convertible
into shares of Common Stock at a price of $6.02 per share and between March 1997
and September 1997 issued ten-year warrants to purchase 880,710 shares of Common
Stock at an exercise price of $6.02 per share and 52,544 shares of Common Stock
at an exercise price of $.0275 per share.
The issuance of securities set forth in (a) above is believed by the
registrant to be exempt from registration under the Securities Act of 1933 in
reliance upon Section 3(a)(9) of such Act. The issuance of securities set forth
in (b) above is believed by the registrant to be exempt from registration in
reliance upon Section 4(2) of such Act as transactions not involving any public
offering.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) EXHIBITS:
The following exhibits are filed as part of this registration
statement:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------------ -----------------------------------------------------------------------------------------------------------
<C> <S>
1.1* -- Form of Underwriting Agreement.
3.1* -- Form of Restated Certificate of Incorporation of the registrant.
3.2* -- Form of Restated By-laws of the registrant.
4.1* -- Specimen Copy of Stock Certificate for shares of Common Stock of the registrant.
4.2* -- Form of Investors' Rights Agreement between the registrant and each of the holders of its Series A
Convertible Participating Preferred Stock.
4.3* -- Form of Registration Rights Agreement between the registrant and each of the holders of its 10% PIK
Series B Convertible Participating Preferred Stock.
5.1* -- Opinion of Parker Chapin Flattau & Klimpl, LLP as to the legality of the securities being registered.
10.1* -- Employment Agreement dated as of December 4, 1995 between the registrant and Scott A. Baxter, as
amended.
10.2* -- Employment Agreement dated as of December 4, 1995 between the registrant and Richard M. Brown, as
amended.
10.3* -- Employment Agreement dated as of December 4, 1995 between the registrant and Scott Harmolin, as amended.
10.4* -- Employment Agreement dated February 1997 between the registrant and Frank C. Cicio, Jr.
10.5* -- Employment Agreement dated March 21, 1997 between the registrant and Kenneth J. Hall.
10.6* -- 1995 Stock Option Plan of the registrant.
10.7* -- Form of Stock Option Contract of the registrant.
10.8* -- Savings plan of the registrant.
10.9* -- Form of Lease between the registrant and Hartz-PW Tower B Limited Partnership.
10.10* -- Financing Agreement dated August 13, 1996 between the registrant and The CIT Group/Business Credit, Inc.
10.11 -- Master Service Agreement dated June 29, 1995 between the registrant and MFS Datanet, Inc. (the 'MFS
Agreement').
10.12 -- Addendum No. 1 dated June 29, 1995 to the MFS Agreement. Confidential treatment has been sought as to
various portions of this exhibit. Such portions have been confidentially filed with the Securities and
Exchange Commission.
10.13 -- Modification Agreement to Addendum No. 1 to the MFS Agreement.
10.14* -- Indirect Value Added Reseller Agreement dated November 2, 1992 between the registrant and Sun
Microsystems Computer Corporation, as amended through December 13, 1996.
10.15* -- Master Value Added Reseller Agreement as amended through October 31, 1996 between the registrant and
Cisco Systems Inc.
</TABLE>
II-2
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------------ -----------------------------------------------------------------------------------------------------------
<C> <S>
10.16* -- Agreement for the Provision of Billing Services between the registrant and Bell Atlantic Internet
Solutions, Inc.
10.17* -- Form of Application for Data Service between the registrant and WorldCom Inc.
10.18* -- Stockholders' Agreement dated July 17, 1995 between the registrant, Scott A. Baxter, Richard M. Brown
and Scott Harmolin.
10.19* -- Interconnection agreement effective as of August 18, 1997 between the registrant and UUNET Technologies,
Inc.
10.20* -- Intercreditor Agreement dated August 13, 1996 among the registrant, The CIT Group/Business Credit, Inc.
and Access Graphics, Inc.
11.1* -- Computation of per share earnings.
23.1* -- Consent of Price Waterhouse LLP.
23.2* -- Consent of Parker Chapin Flattau & Klimpl, LLP (included in their opinion filed as Exhibit 5.1)
24.1'D' -- Power of Attorney.
27.1* -- Financial Data Schedule.
</TABLE>
- ------------
* To be filed by amendment.
'D' Previously filed.
(b) Financial Statement Schedules, and Reports of Independent Accountants.
The following financial statement schedules of the registrant will be filed
by amendment:
(b) SCHEDULE
Schedule II -- Valuation and Qualifying Accounts
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes to provide to the underwriters
at the closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as requested by the underwriters to
permit prompt delivery to each purchaser.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on the 13 day of November, 1997.
Icon CMT Corp.
By: /s/ SCOTT A. BAXTER
...................................
SCOTT A. BAXTER
PRESIDENT, CHIEF EXECUTIVE OFFICER
AND
CHAIRMAN OF THE BOARD OF DIRECTORS
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- ------------------------------------------ -------------------------------------------- -------------------
<C> <S> <C>
/s/ SCOTT A. BAXTER President, Chief Executive Officer and November 13, 1997
......................................... Chairman of the Board of Directors
(SCOTT A. BAXTER) (Principal Executive Officer)
/s/ RICHARD M. BROWN Vice President -- Information Technologies, November 13, 1997
......................................... Secretary and Director
(RICHARD M. BROWN)
/s/ SCOTT HARMOLIN Senior Vice President, Chief Technology November 13, 1997
......................................... Officer, and Director
(SCOTT HARMOLIN)
/s/ KENNETH J. HALL Senior Vice President, Chief Financial November 13, 1997
......................................... Officer and Treasurer (Principal Financial
(KENNETH J. HALL) Officer and Principal Accounting Officer)
/s/ SAMUEL A. PLUM Director November 13, 1997
.........................................
(SAMUEL A. PLUM)
* Director November 13, 1997
.........................................
(WAYNE B. WEISMAN)
* By /s/ SCOTT A. BAXTER
.........................................
(SCOTT A. BAXTER)
ATTORNEY-IN-FACT
</TABLE>
STATEMENT OF DIFFERENCES
The dagger symbol shall be expressed as.................'D'
II-4
<PAGE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
- ------------ --------------------------------------------------------------------------------------------------- ----
<C> <S>
1.1* -- Form of Underwriting Agreement.
3.1* -- Form of Restated Certificate of Incorporation of the registrant.
3.2* -- Form of Restated By-laws of the registrant.
4.1* -- Specimen Copy of Stock Certificate for shares of Common Stock of the registrant.
4.2* -- Form of Investors' Rights Agreement between the registrant and each of the holders of its Series
A Convertible Participating Preferred Stock.
4.3* -- Form of Registration Rights Agreement between the registrant and each of the holders of its 10%
PIK Series B Convertible Participating Preferred Stock.
5.1* -- Opinion of Parker Chapin Flattau & Klimpl, LLP as to the legality of the securities being
registered.
10.1* -- Employment Agreement dated as of December 4, 1995 between the registrant and Scott A. Baxter, as
amended.
10.2* -- Employment Agreement dated as of December 4, 1995 between the registrant and Richard M. Brown,
as amended.
10.3* -- Employment Agreement dated as of December 4, 1995 between the registrant and Scott Harmolin, as
amended.
10.4* -- Employment Agreement dated February 1997 between the registrant and Frank C. Cicio, Jr.
10.5* -- Employment Agreement dated March 21, 1997 between the registrant and Kenneth J. Hall.
10.6* -- 1995 Stock Option Plan of the registrant.
10.7* -- Form of Stock Option Contract of the registrant.
10.8* -- Savings plan of the registrant.
10.9* -- Form of Lease between the registrant and Hartz-PW Tower B Limited Partnership.
10.10* -- Financing Agreement dated August 13, 1996 between the registrant and The CIT Group/Business
Credit, Inc.
10.11 -- Master Service Agreement dated June 29, 1995 between the registrant and MFS Datanet, Inc. (the
'MFS Agreement').
10.12 -- Addendum No. 1 dated June 29, 1995 to the MFS Agreement. Confidential treatment has been sought
as to various portions of this exhibit. Such portions have been confidentially filed with the
Securities and Exchange Commission.
10.13 -- Modification Agreement to Addendum No. 1 to the MFS Agreement.
10.14* -- Indirect Value Added Reseller Agreement dated November 2, 1992 between the registrant and Sun
Microsystems Computer Corporation, as amended through December 13, 1996.
10.15* -- Master Value Added Reseller Agreement as amended through October 31, 1996 between the registrant
and Cisco Systems Inc.
10.16* -- Agreement for the Provision of Billing Services between the registrant and Bell Atlantic
Internet Solutions, Inc.
10.17* -- Form of Application for Data Service between the registrant and WorldCom Inc.
10.18* -- Stockholders' Agreement dated July 17, 1995 between the registrant, Scott A. Baxter, Richard M.
Brown and Scott Harmolin.
10.19* -- Interconnection Agreement effective as of August 18, 1997 between the registrant and UUNET
Technologies, Inc.
10.20* -- Intercreditor Agreement dated August 13, 1996 among the registrant, The CIT Group/Business
Credit, Inc. and Access Graphics, Inc.
11.1* -- Computation of per share earnings.
23.1* -- Consent of Price Waterhouse LLP.
23.2* -- Consent of Parker Chapin Flattau & Klimpl, LLP (included in their opinion filed as Exhibit 5.1)
24.1'D' -- Power of Attorney.
27.1* -- Financial Data Schedule.
</TABLE>
- ------------
* To be filed by amendment.
'D' Previously filed.
<PAGE>
<PAGE>
Confidential
MASTER SERVICE AGREEMENT MSA No. ICON-A
This MASTER SERVICE AGREEMENT between the below-named Customer
and MFS Datanet, Inc. ("MFSDN") (collectively referred to as the "Parties")
establishes the terms and conditions under which MFSDN will provide
communications services which Customer desires to purchase.
Customer: ICon International, Inc.
-------------------------------------------------------------
State of Incorporation: Delaware
-----------------------------------------------
Principal Place of Business:
Address 420 Lexington Ave.
---------------------------------------------------------------
New York, NY 10170
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Address for Notices:
Same
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Attn: Ari Horowitz
------------------------------------------------------------------
MFSDN: MFS Datanet, Inc. Address for Notices:
State of Incorporation: Delaware 55 S. Market St., Suite 1250
Principal Place of Business: San Jose, CA 95113
55 S. Market St., Suite 1250 Attn: Contract Administration
San Jose, CA 95113
1. The Parties anticipate that Customer may, in Customer's
sole discretion, issue a Service Order describing the specific services which
Customer desires to purchase from MFSDN, and which sets forth the prices,
duration and other details. One or more Service Orders may be subject to the
terms and conditions of this Master Service Agreement, and all Service Orders
incorporate the terms set forth herein for the duration of the Service Order. If
a Service Order is accepted in writing by an authorized representative of MFSDN,
it shall supersede any and all prior agreements or understandings with respect
to the service described therein, and shall comprise the full and final
Agreement of the Parties. No term or condition hereof shall be modified except
by written agreement of both Parties. As used in this document, the word "Term"
shall mean the duration of the Service Order, and all Service Orders shall
incorporate the terms and conditions of this Master Service Agreement. The word
"Agreement" shall apply to all
<PAGE>
<PAGE>
promises, terms and conditions of the Parties, whether contained in the Master
Service Agreement or a Service Order.
2. The Term of this Agreement shall be as set forth in the
Service Order and shall extend thereafter until terminated by either Party upon
no less than 90 days' prior written notice. However, MFSDN may terminate this
Agreement or suspend service hereunder at any time upon: (a) any failure of
Customer to pay any undisputed amounts as provided in this Agreement; (b) any
breach by Customer of any material provision of this Agreement continuing for 30
days after receipt of notice thereof; (c) any insolvency, bankruptcy, assignment
for the benefit of creditors, appointment of a trustee or receiver or similar
event with respect to Customer, or (d) any governmental prohibition or required
alteration of services to be provided hereunder or any violation of any
applicable law, rule or regulation. Any termination shall not relieve Customer
of its obligation to pay any charges incurred hereunder prior to such
termination. The Parties' rights and obligations which by their nature would
extend beyond the termination, cancellation or expiration of this Agreement
shall survive such termination, cancellation or expiration.
3. Customer is responsible for all Recurring and Non-Recurring
Charges from and after the later of 1) the Date of Acceptance or 2) the
Customer's Desired Due Date, as that date may be extended from time to time by
mutual agreement of the Parties. For purposes of this Agreement, the Date of
Acceptance is the earlier of 1) date Customer signs a Quality of Service
Checklist or 2) two business days after MFSDN establishes a connection in which
the MFSDN provided service is functioning properly. Paragraph 6 below applies to
all connectivity problems. Recurring Charges will be prorated for the first and
last month of the Agreement if service is not provided for a complete month.
Proration of monthly charge will be based on number of days connection was
available divided by total days in the month.
4. During the Term Customer shall pay MFSDN for services as
set forth in the Service Order. MFSDN shall not increase pricing during the
initial Term, but thereafter MFSDN may increase pricing upon 30 days' written
notice. Normal service charges shall be invoiced monthly in advance. All amounts
owed by Customer thereunder shall be paid within thirty days after the date of
the invoice and MFSDN reserves the right to charge interest on all delinquent
payments at an annualized rate of 2 percentage points above the prime rate
announced in the Wall Street Journal from time to time.
5. MFSDN's bill shall separately state any excise, sales, use,
or other taxes applicable to MFSDN's provision of service or equipment to
Customer, and all such taxes (however designated) shall be paid by Customer in
addition to any other amount owing. MFSDN will not collect any otherwise
applicable tax if Customer first provides MFSDN with a valid exemption
certificate.
6. At Customer's request, MFSDN will respond to Customer's
premise and attempt to resolve all problems of connectivity. If it is determined
that all facilities, systems and equipment furnished by MFSDN were functioning
properly, and that the connectivity problem
<PAGE>
<PAGE>
arose from some other cause, MFSDN will recover labor and materials cost for
services actually performed at the following rates, which shall be the usual and
customary rates for similar services provided by MFSDN to all customers in the
same locality.
Labor (4 hour Minimum Charge):
7 a.m. to 7 p.m. week days/$150.00 per hour per Technician
All other times: $225 per hour per Technician
Materials: Cost to MFSDN x 1.15
MFSDN reserves the right to modify the above rates upon ninety
(90) days advance written notice to Customer.
7. MFSDN may substitute, change or rearrange any equipment,
facility or system used in providing services at any time and from time to time,
but shall not thereby alter the technical parameters of the services provided
thereunder.
8. Customer shall not cause or allow any facility or equipment
of MFSDN to be rearranged, moved, removed, disconnected, altered, or repaired
without MFSDN's prior written consent. Customer shall not create or allow any
liens or other encumbrances to be placed on any MFSDN equipment facility or
system arising from any act transaction or circumstance relating to Customer. If
Customer elects to relocate or otherwise change the place of services after
commencement of the installation of facilities, Customer shall pay any
additional installation charges for both the original and new location.
9. MFSDN will grant a credit allowance for service
interruption calculated and credited in 15 minute increments. A service
interruption will be deemed to have occurred only if service becomes unusable to
Customer as a result of failure of MFSDN's facility, equipment, or personnel
used to provide the service in question, and only where the interruption is not
the result of: (i) the negligence or acts of Customer or its agents; (ii) the
failure or malfunction of non-MFSDN equipment or systems not provided by MFSDN;
(iii) circumstances or causes beyond the control of MFSDN; or (iv) a service
interruption caused by scheduled service maintenance, alteration, or
implementation. Such credits will be granted only if, (a) Customer affords MFSDN
full and free access to Customer's premises to make appropriate repairs,
maintenance, testing, etc; and (b) Customer does not unreasonably continue to
use the service on an impaired basis.
The foregoing states Customer's sole remedy for service
interruption under the Agreement, and in no event shall MFSDN be liable for harm
to business, lost revenues, lost savings, or lost profits suffered by Customer,
regardless of the form of action, whether in contract, warranty, strict
liability, or tort, including without limitation negligence of any kind, whether
active or passive.
10. MFSDN's entire liability for any claim, loss, damage or
expense from any cause whatsoever shall in no event exceed sums actually paid to
MFSDN by Customer for the
<PAGE>
<PAGE>
specific service giving rise to the claim. Notwithstanding the foregoing, MFSDN
shall not be liable for any indirect, incidental, consequential, punitive or
special damages. No action or proceeding against MFSDN shall be commenced more
than one year after service is rendered.
11. There are no warranties, representations or agreements,
expressed or implied either in fact or by operation of law, statutory or
otherwise, including warranties of merchantability or fitness for a particular
purpose, except those expressly set forth herein.
12. In the event that Customer cancels or terminates service
at any time during the initial term of this Agreement or any renewal thereof for
any reason whatsoever other than a service interruption (as defined in Paragraph
7 above), Customer agrees to pay MFSDN liquidated damages (which shall not be
deemed a penalty) the following sums which shall become due and owing as of the
effective date of cancellation or termination and be payable in accordance with
paragraph 3 above: 1) all Non-Recurring charges specified in the Service Order
and reasonably expended by MFSDN to establish service to the Customer, plus 2)
any disconnection, early cancellation or termination charges reasonably incurred
by MFSDN on behalf of Customer with Customer's consent, plus 3) all Recurring
Charges specified in the Service Order for the balance of the then current Term
of this Agreement.
13. For purposes of canceling or terminating the Agreement for
an MFSDN service interruption, such service interruption must equal either 24
hours of cumulative service outages during any continuous 12 month period or a
single outage of 8 hours or more.
14. Customer shall allow MFSDN continuous access and
right-of-way to Customer's premises to the extent reasonably determined by MFSDN
to be appropriate to the provision and maintenance of services, equipment,
facilities, and systems hereunder. Customer shall furnish MFSDN, at no charge,
such equipment space and electrical power as is reasonably determined by MFSDN
to be required and suitable to render services hereunder.
15. Customer shall be liable for any damages to MFSDN
equipment, facility, and system which is caused by: (a) negligent or willful
acts or omissions of Customer, or (b) malfunction or failure of any equipment or
facility provided by Customer or its agents, employees or suppliers. Customer is
responsible for identifying, monitoring, removing and disposing of any hazardous
materials (e.g. friable asbestos) prior to any construction or installation work
being performed by MFSDN and Customer shall indemnify, defend, and hold MFSDN
harmless from any claim, suit, loss, cost, or expense, including fines,
abatement charges, legal fees and court costs incurred in connection with
hazardous materials on Customer's premises.
16. Neither Party may assign this Agreement without the
written consent of the other Party (which consent shall not be unreasonably
withheld or unduly delayed), except that MFSDN may assign its rights and
obligations hereunder: (a) to any subsidiary, parent company, or affiliate of
MFSDN; (b) pursuant to any sale or transfer of substantially all the business of
MFSDN; (c) or pursuant to any financing, merger, or reorganization of MFSDN.
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17. If any provision of this Agreement is held by a court to
be invalid, void or unenforceable, the remainder of this Agreement shall
nevertheless remain unimpaired and in effect.
18. No license, joint venture or partnership, express or
implied, is granted by MFSDN pursuant to this Agreement.
19. Each Party agrees to maintain in strict confidence all
plans, designs, drawings, trade secrets, and other proprietary information of
the other Party which is disclosed pursuant to this Agreement. No obligation of
confidentiality shall apply to disclosed information which the recipient 1)
already possessed without obligation of confidentiality, 2) develops
independently, or 3) rightfully receives without obligation of confidentiality
from a third party.
20. Neither Party shall be liable for any delay or failure in
performance of any part of this Agreement to the extent such delay or failure is
caused by fire, flood explosion, accident, war, strike, embargo, governmental
requirement, civil or military authority, Act of God, inability to secure
materials, labor or transportation, act or omissions of common carrier or
warehouseman, or any other causes beyond their reasonable control. Any such
delay or failure shall suspend the Agreement until the Force Majeure ceases and
the Term shall be extended by the length of the suspension.
21. If this Agreement is entered into by more than one
Customer, each is jointly and severally liable for all agreements, covenants and
obligations herein.
22. This Agreement shall be governed by the laws of the State
of California without regard to its choice of law provisions. In any action
between the Parties to enforce any material provision of this Agreement, the
prevailing Party shall be entitled to recover its legal fees and court costs
from the non-prevailing Party in addition to whatever other relief a court may
award.
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23. Each person executing this Agreement on behalf of MFSDN or
Customer represents and warrants that he or she has been fully empowered to do
so, and that all necessary corporate actions (if any) required for the execution
of agreements have been taken.
MFSDN:
By: /s/
------------------------
Its: Vice President
-----------------------
Date: 6-29-95
----------------------
Customer:
By: /s/ Scott A. Baxter
------------------------
Its: President
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Date: June 21, 1995
----------------------
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EXHIBIT 10.12
Confidential treatment requested The portions for which
under the Freedom of Information confidentiality have been sought
Act and other indicated statutes are identified by an asterisk(*).
by ICon CMT Corp.
Confidential
MFS Datanet/ICon Net
Master Service Agreement
Addendum #1
This Addendum #1 is made between MFS Datanet, Inc., a Delaware corporation with
a principle place of business at 55 South Market Street, Suite 1250, San Jose,
California 95113 ("MFSDN") and ICon International, Inc., Delaware corporation
with a principle place of business at 420 Lexington Avenue, New York, New York
10170 ("Customer"), hereinafter collectively referred to as the "Parties."
Recitals
WHEREAS, the Parties have entered into an agreement relative to the provision of
data communication services by MFSDN to Customer known as the Master Service
Agreement (the "Agreement"); and,
WHEREAS, MFSDN has agreed to provide Customer with certain services subject to
the special terms and conditions set forth in this Addendum #1 (which, together
with the terms of the Master Service Agreement, shall be hereinafter referred to
as "this Agreement"),
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
Parties hereby agrees as follows:
1. Agreement Term
This Agreement shall commence upon execution by both Parties and continue in
effect for a period of three (3) years. Notwithstanding the foregoing, the terms
of this Agreement shall remain in effect as long as services are provided
hereunder. The initial term of service for any service ordered hereunder will be
as set forth in a Service Order placed pursuant to this Agreement.
2. Service Description
MFSDN agrees to provide Customer with ATM services at speeds of up to 45 Mbps
(megabits per second) in domestic US cities in which MFSDN has an established
network node and operates a fiber optic network ("MFS Cities").
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3. Pricing and Billing
Service pricing is on a per connection basis and has two components; a fixed
connection charge of * per month (the "Minimum Monthly Charge") plus a usage
charge based on actual traffic volumes, capped at a fixed monthly fee (the
"Monthly Usage Charge").
Each month, a Monthly Usage Charge will be calculated for each city using both
variable rates based on * and * The Monthly Usage Charge invoiced to Customer
for any month will be capped at a fixed monthly charge (the "Usage Cap") * .
Refer to * Table 1 below for variable usage rates. The Usage Cap for each * is
shown in Table 2, Fixed Monthly Usage Caps.
Variable Charges - To calculate the variable usage charge * and then multiplied
by the appropriate * charge. Charges for the * are then * to determine the total
variable usage charge applicable to that month. A megabyte consists of * and
billing is on a transmit basis.
Usage Cap - To calculate an aggregate sustained usage for any * , the total *
will be divided by * . (If a billing month consists of thirty days, each with
twenty-four hours; the * would be 2,592,000 seconds: 30 days in the month x
86,400 seconds/day.) The result of this * is the * . The range containing this
number will be found in * of Table 2 and a resulting Usage Cap value determined.
The Monthly Usage Charge actually billed to Customer will be the lesser of the
variable usage charge or the applicable Usage Cap.
Table 1
* Chart - * Between *
- --------------------------------------------------------------------------------
Lower Bound Upper Bound Rate
- --------------------------------------------------------------------------------
*
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Table 2
Fixed Monthly Usage Caps
*
Service provides for burst capability on the access circuit of * cells. VCI will
be set to a * Mbps Sustained. *
The Parties agree that each will devote the technical resources necessary, and
will work together in good faith, to develop a resolution to any technical
challenge encountered in making the Customer's application work on the MFSDN
network. It is, however, understood that Agreement rates are conditioned on
certain cost assumptions and if the proposed solution to such technical
challenge would require additional investment in equipment or network
infrastructure resource beyond that currently contemplated, the Parties must
mutually agree as to the course of action. Any such technical challenge which
cannot be resolved to Customer's satisfaction shall be considered grounds for
termination by Customer in accordance with paragraph 4 below.
Usage data will be collected for each Customer connection on a continuous basis
and in approximately fifteen minute intervals. MFSDN will provide Customer with
monthly reports which support usage billing under this Agreement.
The on-net installation charge for ATM service is * per port per city. Off-net
installation is subject to quote at the time the order is placed. Unless
otherwise agreed to
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by the parties and specified in a Service Order, the installation charge shall
be the only Non-Recurring charge applicable to this service.
4. Termination
Customer may, with written notice to MFSDN, terminate this Agreement if (a)
Customer is unable, with reasonable effort and upon reasonable terms, to enter
into peering agreements with all other Internet access provides; or, (b)
Customer is unable, with reasonable effort and upon reasonable terms, to route
traffic to any Internet user; or (c) MFSDN fails to meet the performance
standards set forth in Paragraph 9 of the Agreement. In the event of termination
for one of the foregoing reasons or the reason set forth in section 3 above, it
is agreed that MFSDN service charges (excluding third party charges) will cease
effective five days after the date of Customer's notification or the date
Customer discontinues use of the service, whichever is later. In addition,
either Party may, in its sole business judgment and with thirty (30) days prior
written notice, terminate this Agreement at the expiration of the first year of
the Term of this Agreement.
In the event Customer requests termination of this Agreement under this
provision or the terms of Paragraph 2 or Paragraph 9 of this Agreement,
Customer's sole liability shall be to pay to MFSDN all Non-Recurring charges
specified in a Service Order placed hereunder and reasonably expended by MFSDN
to establish service to the Customer; plus any third party disconnection, early
cancellation or termination charges reasonably incurred by MFSDN as a result of
Customer's request to terminate. Termination for any other reason shall be
subject to the terms of Paragraph 12 of this Agreement.
5. Amendments to Master Service Agreement Terms and Conditions
Paragraph 2 of the Agreement is hereby deleted in its entirety and replaced with
the following:
"The Term of this Agreement shall be as set forth in the Service Order and shall
extend thereafter until terminated by either Party upon no less than ninety (90)
days' prior written notice. However, MFSDN may terminate this Agreement or
suspend service hereunder at any time upon: (a) any failure of Customer to pay
any undisputed amounts as provided in this Agreement; (b) any breach by Customer
of any material provision of this Agreement continuing for thirty (30) days
after receipt of notice thereof; (c) any insolvency, bankruptcy, assignment for
the benefit of creditors, appointment of a trustee or receiver or similar event
with respect to Customer; or (d) any governmental prohibition or required
alteration of services to be provided hereunder or any violation of an
applicable law, rule or regulation by Customer. Customer may terminate this
Agreement or suspend service hereunder at any time upon: (i) any breach by MFSDN
of any material provision of this Agreement continuing for thirty (30) days
after receipt of notice thereof; (ii) any insolvency, bankruptcy, assignment for
the benefit of creditors, appointment of a trustee or receiver or similar event
with respect to MFSDN; or (iii) any governmental prohibition or required
alteration of services to be provided hereunder or
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Confidential
any violation of an applicable law, rule or regulation by MFSDN. Any termination
shall not relieve Customer of its obligation to pay any charges incurred
hereunder prior to such termination or relieve MFSDN of its obligations accrued
up to the time of termination. The Parties' rights and obligations which by
their nature would extend beyond the termination, cancellation or expiration of
this Agreement shall survive such termination, cancellation or expiration.
Paragraph 4 of the Agreement is amended by the addition of the following clause
at the end of the current paragraph: "provided, however, that MFSDN shall
provide Customer with written notice of delinquent payment and allow Customer
ten (10) days from the date of such notice to bring its account current before
the imposition of interest charges or termination of service."
Paragraph 6 of the Agreement is amended by inserting the words ", as soon as
possible" at the end of the first sentence and adding the following additional
sentence to the end of the current clause: "These labor rates apply to a service
call for a problem that is not caused by a failure of MFSDN provided services.
They do not apply to maintenance for the service being provided to Customer
under this Agreement which is included in the monthly rate."
Paragraph 9 of the Agreement is amended by the deletion of subsection (iii) in
the seventh line of the first paragraph.
Paragraph 10 of the Agreement is amended by deleting the current clause in its
entirety and replacing it with the following:
"MFSDN's and Customer's entire liability for any claim, loss, damage or expense
from any cause whatsoever shall in no event exceed sums actually paid to or
payable to MFSDN by Customer for the specific service giving rise to the claim.
Notwithstanding the foregoing and excepting liquidated damages paid by Customer
for early termination as set forth in Section 4 of Addendum Number (1) or
Paragraph 12 of the Master Service Agreement, neither MFSDN nor Customer shall
be liable for any indirect, incidental, consequential, punitive or special
damages. No action or proceeding against either Party shall be commenced more
than one (1) year after service is rendered."
Paragraph 12 of the Agreement is amended by inserting the words "third party"
after the word "any" in subsection 2) of this paragraph.
Paragraph 15 of the Agreement is amended by replacing the word "MFSDN" in the
third line with the words "either Party", the word "MFSDN" in the fourth, fifth,
and sixth lines with the words "that Party." In addition, the following
additional paragraph is added to this clause:
"If, however, any assignment permitted under the proceeding sentence should
cause the non-assigning Party reasonable concern that the assignee possesses
insufficient financial
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resources to perform all the obligations hereunder, the assignee shall be
required to deposit with the non-assigning Party an irrevocable unconditional
letter of credit, or other acceptable form of security, in an amount sufficient
to insure the obligations of the assignee."
Paragraph 19 of the Agreement is amended by inserting the words, "provided that
such delay or failure does not extend for more than fifteen (15) days" at the
end of the first sentence and by the insertion of the words ", up to fifteen
(15) days" at the end of the second sentence.
Paragraph 21 of the Agreement is amended by replacing the words "State of
California" with "State of New York."
This Agreement is further amended by adding the following additional provision
as a new Paragraph 23:
"The Usage Cap charges set forth herein represent a significant discount for
MFSDN's standard fixed price charge for high speed ATM services. MFSDN agrees
that if, during the term of this Agreement, it should announce a reduction in
its published rates for these services for a term of service equal to or less
than the remaining Term of this Agreement, it shall offer those rates to
Customer on a going forward basis."
The Agreement is modified, altered, and changed only as set forth in this
Addendum #1. In the event of any conflict, inconsistency, or incongruity between
the provisions of this Addendum Number 1 and any provisions of the Master
Service Agreement or Service Order for the services described herein, the
provisions of this Addendum shall in all respects govern and control.
MFSDN: Customer:
By: /s/ By: /s/ Scott A. Baxter
----------------------------- -------------------------
Title: Vice President Title: President
-------------------------- ----------------------
Date: 6/29/95 Date: June 21, 1995
--------------------------- -----------------------
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EXHIBIT 10.13
Modification Agreement
This Modification Agreement is made between MFSDN Datanet, Inc., a Delaware
corporation with its principal place of business at 55 South Market Street,
Suite 1250, San Jose, California 95113 ("MFSDN") and ICon International Inc., a
Delaware corporation with its principal place of business at 420 Lexington
Avenue, New York, New York 10170 ("Customer"), hereinafter collectively referred
to as the "Parties."
Recitals
WHEREAS, the Parties have entered into an agreement relative to the provision of
data communication services by MFSDN to Customer known as the Master Service
Agreement (the "Agreement"); and
WHEREAS, the Parties have entered into Addendum #1 to the Agreement ("Addendum
#1"); and
WHEREAS, the Parties desire to modify and amend Addendum #1 only as set forth in
this Modification Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
Parties hereby agree as follows:
1. Modifications and Amendments to Addendum #1
Paragraph 1 (entitled "Agreement Term") of Addendum #1 is hereby deleted in its
entirety and replaced with the following:
"This Agreement shall commence upon execution by both Parties and continue in
effect for a period of three (3) years. This Agreement shall automatically be
renewed at the end of such three (3) years for an additional term of three (3)
years, which renewal period shall be deemed part of the Term. Notwithstanding
the foregoing, the terms of this Agreement shall remain in effect as long as
services are provided hereunder. The initial term of service for any service
ordered hereunder will be set forth in a Service Order placed pursuant to this
Agreement."
Paragraph 4 (entitled "Termination") of Addendum #1 is amended by deleting the
last sentence of the first paragraph of such Paragraph 4 and replacing it with
the following:
"In addition, either Party may, in its sole business judgment and with at least
six (6) months notice given during the three (3) year renewal period of the
Term, terminate this Agreement during the three (3) year renewal period of the
Term, such termination to be effective no earlier than the expiration of the
forty-second (42nd) month of the Term.
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2. Effect of this Modification Agreement.
Addendum #1 is modified, altered and changed only as set forth in this
Modification Agreement. In the event of any conflict, inconsistency, or
incongruity between the provisions of this Modification Agreement and any
provisions of Addendum #1 or the Master Service Agreement, the provisions of
this Modification Agreement shall in all respects govern and control.
MFSDN: Customer:
By: /s/ By: Scott A. Baxter
------------------------ -----------------------
Title: President & CEO Title: President
--------------------- --------------------
Date: 10/19/95 Date: 10/19/95
---------------------- ---------------------
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