UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-KSB
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For fiscal year ended December 31, 1999
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d)OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ___________________ to ___________________
Commission File Number: 000-27031
FULLNET COMMUNICATIONS, INC.
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(Exact Name of Registrant as Specified in its Charter)
OKLAHOMA 73-1473361
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
200 North Harvey, Suite 1704
Oklahoma City, Oklahoma 73102
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(Address of principal executive offices)
(405) 232-0958
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(Registrant's telephone number)
Securities registered pursuant to Section 12(b) of the Exchange Act: None
Securities registered pursuant to Section 12(g) of the Exchange Act:
Title of each class Name of each exchange on which registered
- ------------------- -----------------------------------------
Common Stock, $0.00001 Par Value None
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days.
Yes [X] No [ ]
Indicate by check mark if there is no disclosure contained herein of delinquent
filers in response to Item 405 of Regulation S-B, and will not be contained, to
the best of the Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-KSB or any
amendment to this Form 10-KSB. [ ]
The Registrant's revenues for its most recent fiscal year were $1,122,000.
The aggregate market value of the registrant's common stock, $0.00001 par value,
held by non-affiliates of the Registrant as of March 24, 2000 was $3,650,034
based on the closing bid price of $3.00 per share on that date as reported by
the OTC Bulletin Board. As of March 24, 2000, 3,134,578 shares of the
registrant's common stock, $0.00001 par value, were outstanding.
Transitional Small Business Disclosure Format (check one): Yes [ ] No [X]
The following documents are incorporated by reference: Registrant's Proxy
Statement for the 2000 Annual Meeting of Stockholders is incorporated by
reference in Part III, Items 9 through 12, of this Form 10-KSB
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FULLNET COMMUNICATIONS, INC.
FORM 10-KSB
For the Fiscal Year Ended December 31, 1999
TABLE OF CONTENTS
Part I.
Item 1. Description of Business............................................. 2
Item 2. Description of Property.............................................18
Item 3. Legal Proceedings...................................................18
Item 4. Submission of Matters to a Vote of Security Holders.................19
Part II.
Item 5. Market for Common Equity and Related Stockholder Matters............19
Item 6. Management's Discussion and Analysis or Plan of Operation...........20
Item 7. Financial Statements................................................23
Item 8. Changes In and Disagreements With Accountants on Accounting and
Financial Disclosure................................................23
Part III.
Item 9. Directors, Executive Officers, Promoters and Control Persons;
Compliance With Section 16(a) of the Exchange Act...................23
Item 10. Executive Compensation..............................................23
Item 11. Security Ownership of Certain Beneficial Owners and Management......23
Item 12. Certain Relationships and Related Transactions......................24
Item 13. Exhibits and Reports on Form 8-K....................................24
Signatures ..................................................................26
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING INFORMATION
This Annual Report on Form 10-KSB and the information incorporated by
reference may include "forward-looking statements" within the meaning of Section
27A of the Securities Act of 1933, as amended (the "Securities Act"), and
Section 21E of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). In particular, we direct your attention to Item 1. Description of
Business, Item 2. Properties, Item 3. Legal Proceedings, Item 7. Management's
Discussion and Analysis of Financial Condition and Results of Operation, and
Item 8. Financial Statements and Supplementary Data. We intend the
forward-looking statements to be covered by the safe harbor provisions for
forward-looking statements in these sections. All statements regarding our
expected financial position and operating results, our business strategy, our
financing plans and the outcome of any contingencies are forward-looking
statements. These statements can sometimes be identified by our use of
forward-looking words such as "may," "believe," "plan," "will," "anticipate,"
"estimate," "expect," "intend" and other phrases of similar meaning. Known and
unknown risks, uncertainties and other factors could cause the actual results to
differ materially from those contemplated by the statements. The forward-looking
information is based on various factors and was derived using numerous
assumptions.
Although we believe that our expectations that are expressed in these
forward-looking statements are reasonable, we cannot promise that our
expectations will turn out to be correct. Our actual results could be materially
different from our expectations, including the following:
- We may lose subscribers or fail to grow our subscriber base;
- We may not successfully integrate new subscribers or assets obtained
through acquisitions;
- We may fail to compete with existing and new competitors;
- We may not be able to sustain our current growth;
- We may not adequately respond to technological developments impacting
the Internet;
- We may experience a major system failure;
- We may not be able to find needed financing.
This list is intended to identify some of the principal factors that
could cause actual results to differ materially from those described in the
forward-looking statements included elsewhere in this report. These factors are
not intended to represent a complete list of all risks and uncertainties
inherent in our business, and should be read in conjunction with the more
detailed cautionary statements included in this Annual Report on Form 10-KSB
under the caption "Item 1. Description of Business-Risk Factors," our other
Securities and Exchange Commission filings and our press releases.
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PART I
ITEM 1. DESCRIPTION OF BUSINESS
General
FullNet Communications Inc. (the "Company") is a regional integrated
communications provider ("ICP") offering integrated communications and network
solutions to individuals, businesses, organizations, educational institutions,
and government agencies. Through its subsidiaries, the Company provides high
quality, reliable and scalable Internet, telephony, and network solutions
designed to meet its customers' needs. The Company's overall strategy is to
become the dominant ICP, Internet service provider ("ISP"), network solutions
and broadband backbone provider for residents and small to medium-sized
businesses in Oklahoma and contiguous states.
References to the Company in this Annual Report include the Company's
direct and indirect subsidiaries: FullNet, Inc. ("FullNet"), FullTel, Inc.
("FullTel"), FullSolutions, Inc. ("FullSolutions") and FullWeb, Inc.
("FullWeb"). The Company's principal executive offices are located at 200 North
Harvey Avenue, Suite 1704, Oklahoma City, Oklahoma 73102, and its telephone
number is (405) 232-0958. We also maintain an Internet site on the World Wide
Web ("WWW") at www.fullnet.net. Information contained on the Company's Web site
is not, and should not be deemed to be, a part of this Annual Report on Form
10-KSB.
Company History
The Company was founded in 1995 as CEN-COM of Oklahoma, Inc., an
Oklahoma corporation, to bring dial-up Internet access and education to rural
locations in Oklahoma that did not have dial-up Internet access. The Company
changed its name to FullNet Communications, Inc. in December 1995, and shifted
its focus from offering dial-up services to providing wholesale and private
label network connectivity and related services to other ISPs. During 1995 and
1996, the Company furnished wholesale and private label network connectivity
services to ISPs in Bartlesville, Cushing, Durant, Perry, Tahlequah, and Tulsa.
During 1996, the Company sold its ISP operations in Enid, Oklahoma and began ISP
operations in Ponca City, Oklahoma.
In 1997 the Company continued its focus on being a backbone provider by
upgrading and acquiring more equipment. The Company also started offering its
own ISP brand access and services to its wholesale customers. As of December 31,
1999, there were five ISPs in Oklahoma that used the FullNet brand name where
the Company is the backbone, including two that were subsequently acquired by
the Company. There are an additional three ISPs that use a private label brand
name, where the Company is their access backbone and provides their technical
support, managing and operating their systems on an outsource basis. In February
2000 the Company acquired one of the private label ISPs. See "Item 1.
Description of Business-Recent Events." Additionally, the Company provides
high-speed broadband connectivity, website hosting, network management and
consulting solutions to over 50 businesses in Oklahoma.
In 1998 the Company's gross revenues exceeded $1,000,000 and the
Company made the Metro Oklahoma City Top 50 Fastest Growing Companies list. In
1998 the Company commenced the process of organizing a competitive local
exchange carrier ("CLEC") through FullTel, and acquired Animus Communications,
Inc. ("Animus"), a wholesale Web-service company, thereby enabling the Company
to become a total solutions provider to individuals and companies seeking a
"one-stop shop" in Oklahoma. Animus was renamed FullWeb in January 2000.
With the incorporation of FullTel and the acquisition of FullWeb, the
Company's current business strategy is to become the dominant ICP in Oklahoma
and surrounding states. The Company expects to grow through the acquisition of
ISPs and network solutions providers, as well as through a marketing campaign,
the design and implementation of which is to be completed in the second quarter
2000. Since December 31, 1999, the Company has completed three separate
acquisitions of ISP companies, operating in, respectively, Tahlequah, Oklahoma,
Bartlesville, Oklahoma and Enid, Oklahoma.
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Recent Events
Mergers and Acquisitions
On January 25, 2000, the Company entered into an Asset Purchase
Agreement with FullNet of Tahlequah, Inc., an Oklahoma corporation ("FOT"), in
which the Company purchased substantially all of FOT's assets, including
approximately 400 individual and business Internet access accounts. The Company
paid FOT an aggregate amount of $97,735, comprised of $35,890 in cash and a note
payable for $61,845. The note is payable in eighteen monthly installments and
bears no interest.
On February 4, 2000, the Company entered into an Asset Purchase
Agreement with David Looper, d/b/a FullNet of Bartlesville ("FOB"), an Oklahoma
sole proprietorship in which the Company purchased substantially all of FOB's
assets, including approximately 400 individual and business Internet access
accounts. The Company paid FOB an aggregate amount of $178,400, payable in
42,744 shares of the Company's common stock (valued for purposes of the
acquisition at $3.00 per share) and a note payable for $50,168. The note bears
an interest rate of 8% per annum, with the principal and interest thereon
payable on the earlier to occur of (a) the closing of any private equity
placement in excess of $351,000, (b) the closing of any underwritten offering of
the Company's common stock, or (c) one year from the closing date of the Asset
Purchase Agreement.
On February 29, 2000, the Company entered into an Agreement and Plan of
Merger (the "Merger Agreement") with Harvest Communications, Inc., ("Harvest")
an Oklahoma corporation, pursuant to which Harvest merged with and into FullNet.
Harvest had approximately 2,500 individual and business dial up Internet access
accounts, 15 wireless Internet access accounts and 35 Web hosting accounts.
Pursuant to the terms of the Merger Agreement, the Company paid the shareholders
of Harvest an aggregate amount of $1,912,500 payable in 537,500 shares of the
Company's common stock (valued for purposes of the merger at $3.00 per share), a
note payable for $175,000 and $125,000 in cash. The note bears an interest rate
of 8% per annum, with the principal and interest thereon payable on the earlier
to occur of (a) the closing of any single funding (whether debt or equity)
obtained by the Company subsequent to the date of the Merger Agreement in an
aggregate amount of at least $2,000,000, (b) the closing of any underwritten
offering of the Company's common stock, or (c) March 6, 2001.
These acquisitions were accounted for as purchases. The aggregate
purchase price will be allocated to the underlying assets purchased on their
fair market values at the respective acquisition date. Prior to the
acquisitions, each of FOT, FOB and Harvest was a customer of the Company's ISP
access services.
Financing Activities
In February 2000, the Company obtained a bridge loan for $275,000
through the issuance of 14% promissory notes to 10 accredited investors. The
terms of the financing additionally provided for the issuance of warrants to
purchase an aggregate of 137,500 shares of the Company's common stock at $0.01
per share, and provided for certain registration rights. The promissory notes
each bear an interest rate of 14% per annum and require monthly interest
payments. The loan term is for six months, and is extendible for two 90-day
periods upon issuance of an additional warrant for 137,500 shares exercisable at
$0.01 per share for each extension.
In March 2000, the Company obtained a bridge loan for $500,000 through
the issuance of 14% promissory notes to two accredited investors. The terms of
the financing additionally provided for the issuance of warrants to purchase
100,000 shares of the Company's common stock at $0.01 per share, and provided
for certain registration rights. The promissory notes each bear an interest rate
of 14% per annum and require quarterly interest payments. The loan term is for
six months, and is extendible for two 90 day periods upon issuance of additional
warrants for an aggregate 10,000 shares exercisable at $0.01 per share for each
extension. On March 8, 2000, both of the bridge loan investors exercised their
warrants and purchased 100,000 shares of common stock of the Company at an
aggregate exercise price of $1,000.
In February 2000, the Company raised an aggregate $135,600 in an
offering of its common stock. The offering was made pursuant to an exemption
from the registration requirements of the Securities Act pursuant to Rule 504 of
Regulation D of such act. Pursuant to the 504 offering, 45,200 shares of common
stock were issued.
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Proceeds of the two bridge loans and the 504 offering were used for
acquisitions, working capital and general corporate purposes.
Industry Overview
The Internet Access and Services Market
The Internet has emerged as a significant global communications medium,
enabling millions of people to communicate, publish and retrieve information and
conduct business electronically. Regardless of the hardware and software used,
Internet Protocol or "IP" enables Internet communication by providing a common
inter-networking standard. Due to increased public awareness, lower prices for
access devices, increased functionality and improving content, International
Data Corporation estimates that the number of users accessing the World Wide Web
will increase from approximately 97 million at the end of 1998 to approximately
320 million by the end of 2002. Total ISP revenues in the Untied States are
projected to grow from $10.7 billion in 1998 to $37.4 billion in 2003.
Internet access services are the means by which ISPs interconnect
either businesses or individual consumers to the Internet's resources or to
corporate intranets and extranets. Access services include dial-up access for
individuals and small businesses and high-speed dedicated access designed
primarily for mid-sized and larger organizations. Users currently accessing the
Internet do so primarily by means of dial-up services. Access to the Internet
using dial-up services requires the user to have access to a local telephone
line, the use of a modem and an ISP account, such as a FullNet Internet account.
However, new ways of connecting to the Internet are becoming more common,
particularly those that take advantage of higher speed and broader bandwidth
capacity.
The rapid development and growth of the Internet has resulted in a
highly fragmented industry of over 5,000 national and local ISPs in the U.S.
ISPs vary widely in geographic coverage, customer focus and levels of Internet
access provided to subscribers. For example, access providers may concentrate on
certain types of subscribers (such as businesses or individuals) that differ
substantially in the type of service and support required by the relevant
customer constituency. Often, large national ISPs do not offer individual
customers the level of support desired and many smaller regional ISPs do not
have the resources necessary to offer adequate customer support. Because
user-friendly software and responsive customer service and technical support are
the foundation of the Company's business, the Company believes that it is poised
to capitalize on the growth in the Internet access and Internet services
segments of the telecommunications market.
The number of businesses and consumers accessing the Internet is
expected to increase significantly in the foreseeable future. According to
Forrester Research, the market for providing access to the Internet for
businesses and consumers in the United States will grow from $5.8 billion in
1997 to $38.1 billion in 2002. Additionally, as businesses and consumers are
developing greater levels of comfort in the use of the Internet for electronic
commerce, businesses are increasingly implementing sophisticated electronic
commerce solutions that, in turn, require significantly greater bandwidth and
other business services. In response, an increasing number of Internet service
providers are attempting to augment their basic Internet access services with a
wide range of business services, such as Web hosting and Internet security
services. In addition, as more businesses evolve from establishing an Internet
presence to utilizing secure connectivity between geographically-dispersed
locations, remote access to corporate networks and business-to-business commerce
solutions, the demand for high quality Internet connectivity and value-added
services is expected to grow. International Data Corporation predicts that
enhanced Internet services, such as Web hosting, security, e-commerce, virtual
private networks and advanced Internet applications are expected to grow from
approximately $352 million in 1997 to over $7 billion in 2000.
Internet service providers that offer both Internet access to broad
segments of the population and that offer a broad selection of business services
are positioned to attain greater economies of scale through lower network
expansion and marketing costs on a per-subscriber basis. The Company believes
that it is uniquely positioned, among purely local or regional ISPs, to benefit
from this continued growth. Specifically, the Company believes that a window of
opportunity currently exists within the state of Oklahoma. Currently,
competition from the national ISPs, such as America Online, Prodigy, CompuServe,
has had only minimal impact on the Oklahoma ISP market due to the lack of local
dial-up Internet presence in rural Oklahoma and too many busy signals. In
addition, the local Oklahoma education ISP, OneNet, is also not a factor due to
the limits placed on it by the Oklahoma legislature. With the demand for
Internet access consistently exceeding all projections, the Company believes
that its target area, rural Oklahoma, is grossly underserviced. Accordingly, the
Company believes that a real opportunity exists for the Company and its
subsidiaries to establish a stronghold on the Oklahoma Internet market, given
the local infrastructure that it already has in place as well as its
multi-pronged marketing strategy.
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Telecommunications Industry
The telephone and data transmission segment of the communications
industry is currently undergoing widespread changes brought about by three main
factors. First were the decisions of federal and state regulators that opened
the monopoly of local telephone markets to competition. Second was the ensuing
transformation of the previously monopolistic communications market controlled
by heavily regulated incumbents into a consumer-driven competitive service
industry. Third was the need for higher speed, higher capacity networks to meet
the increasing consumer demand for expanded communications services, including
broader video choices, and high speed data and Internet services. The
convergence of these trends has created opportunities for new types of
communications companies capable of providing a wide range of voice, video and
data services. Hence, companies have developed concentrations in various niche
segments of the industry involving (1) high-speed wireless, (2) DSL, (3) fiber
broadband, (4) long distance only, (5) local telephone only, and (6)
combinations of these services.
The passage of the Telecommunications Act of 1996 (the
"Telecommunications Act") codified the pro-competitive policies on a national
level, requiring both the FCC and the state regulatory commissions to adopt
significant changes in their rules and regulations in furtherance of these
policies. This act obligates regulators to remove market entry barriers,
enabling companies to become full service providers of local and long distance
telephone service by, among other things, mandating the incumbent local exchange
carrier ("ILEC") to provide interconnection and competitively priced network
facilities to competitors. In addition, the Telecommunications Act requires the
Regional Bell Operating Companies ("RBOCs") to offer wholesale access to their
switching and existing technology, thus permitting others to compete.
The Company intends to provide traditional long distance and local
telephone service, as well as other communications services, in order to
position ourselves as a single source supplier for all the communication needs
of the customer. In 1999 the Oklahoma Corporation Commission granted the request
of FullTel, the Company's wholly owned subsidiary, to become a CLEC. The
Company's intention is to provide IP telephony services and CLEC services to
subscribers in the State of Oklahoma.
The Company's Business Strategy
As an ICP, the Company intends to increase shareholder value by
continuing to build scale through both acquisitions and internal growth and then
leveraging increased revenues over its fixed costs base. The Company's strategy
is to meet the customer service requirements of retail, business, educational
and government Internet users in its target markets, while benefiting from the
scale advantages enjoyed through being a fully integrated backbone and broadband
provider. The key elements of the Company's overall strategy with respect to its
principal business operations are as follows:
Internet Access Services
Target Strategic Acquisitions
The goal of the Company's acquisition strategy is to accelerate market
penetration by acquiring ISPs in Oklahoma communities with a population of 5,000
or more and to acquire strategic ISPs in Oklahoma City and Tulsa. Additionally,
the Company will continue to build upon its core competencies and expand its
technical, customer service staff and sales force in Oklahoma communities. The
Company evaluates acquisition candidates based on their fit with the Company's
overall business plan of penetrating rural and outlying markets as well as
Oklahoma City and Tulsa. When a candidate is acquired, the Company will
integrate its existing Internet, network connectivity and value-added services
with the services offered by the acquired company and use either the local sales
force or install its own dealer sales force to continue to increase market
share. The types of acquisitions targeted by the Company include ISPs located in
markets into which the Company wants to expand, or to which it may already
provide "private-label" Internet connectivity. Other types of targeted
acquisitions include local business only ISPs in markets where the Company has
established points of presence and would benefit from the acquired company's
local sale and network solutions sales and technical staff and installed
customer base through the potential increase in the Company's network
utilization. When determining which ISPs to acquire, the Company focuses on the
following criteria:
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o Potential revenue and subscriber growth
o Low subscriber turnover or churn rates
o Density in the market as defined by a high ratio of subscribers to
points of presence ("POPs")
o Favorable competitive environment
o Low density network platforms that can be integrated readily into the
Company's backbone network
o Favorable consolidation savings
Since December 31, 1999, the Company has completed three separate
acquisitions of ISP companies, operating in, respectively, Tahlequah, Oklahoma,
Bartlesville, Oklahoma and Enid, Oklahoma.
Generate Internal Sales Growth
The Company intends to expand its customer base by significantly
increasing its direct and indirect regional sales forces as well as its
marketing efforts. As of December 31, 1999, the Company's direct sales force
consisted of two persons in two regional sales offices in Oklahoma City and
Tulsa coordinating all business to Business ("B2B") solutions sales of the
Company. The Company currently has one individual responsible state wide to
manage the consumer ISP market, with dealers and independent sales
representatives responsible for their individual markets. The Company's sales
force is supported in their efforts by technical engineers and, in some
instances, senior management of the Company. The Company intends to increase the
number of its sales offices through expanding the size of its direct sales force
with the goal of having an effective selling presence in all major communities
in the state of Oklahoma. In addition, the Company is exploring other strategies
to grow its direct sales force, including developing an inside sales center and
other marketing partners such as electric cooperatives. The Company currently
has two of the twenty local Oklahoma electric cooperatives as marketing
partners.
Develop the Dominant Regional Brand
FullNet seeks to support internal growth by converting each local
acquired ISP to its regional FullNet brand supported by community based
marketing programs. This strategy includes two components:
o Regional branding. Change strong local brands to a regional FullNet
brand. The Company intends to change these brands on a market by
market basis as it implements enhancements to improve customer
satisfaction.
o Community based marketing. The Company intends to continue to build
goodwill through community involvement, such as providing free
services to libraries and educational institutions, sponsoring local
sports teams and other community organizations and furthering
relationships with local retailers to promote the Company's' products
and services in their stores.
Develop Strategic Relationships
The Company aims to develop strategic relationships with advertisers
and content providers, capitalizing on opportunities to sell value-added
products and services to its local subscribers.
Grow Subscriber Base
The Company intends to grow its subscriber base through a combination
of internal and acquisition driven growth. This growth will help to increase the
density of the subscriber base on a subscriber-per-POP basis, which should allow
the Company to leverage its cost structure, particularly those costs associated
with network operations, customer support, back office functions and management
overhead. The Company expects its local markets to generate internal subscriber
growth primarily by enhancing subscribers' online experience, providing a sense
of a national presence while maintaining local community content and developing
a consumer recognized regional FullNet brand.
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Increase Rural Area Market Share
The Company believes that rural areas of Oklahoma and surrounding
states are underserved by ISPs, and that significant, profitable growth can be
achieved by entering such markets and providing reliable Internet connectivity
at a reasonable cost to the residents and businesses located in such areas. The
Company believes it can obtain a significant ISP and B2B market share in
Oklahoma. To that end, the Company, through its wholly owned subsidiary,
FullTel, became a licensed CLEC in the state of Oklahoma and intends to pursue
such licensing in neighboring states. As a CLEC in any particular state, FullTel
will be able to offer local telephone numbers for Internet access.
Cross-Sell Value Added Services
The Company intends to capitalize on its existing customer base and
future customers by aggressively cross selling its value-added services through
a referral system that has every local retail ISP sales representative referring
B2B customers to the FullSolutions division. The Company is committed to
offering its customers reliable value-added network services necessary to
address their Internet, communications and network management requirements.
Based on the Company's existing network infrastructure and expertise, it is able
to offer these services continuously, reliably and on a cost-effective basis.
Enhance Subscribers' Online Experience
FullNet intends to maintain its high subscriber retention rates and add
new subscribers by enhancing its services in the following ways:
o Ease of Use - The Company intends to develop and implement a common,
easy to use CD ROM based software package that automatically
configures all of the individual Internet access programs after a one
time entry by the user of a few required fields of information such
as, name, user name and password.
o Local Content - Source local, customized, community specific content,
such as weather, traffic, crop reports, business club meetings and
high school and college sports information, through national providers
of local content or partnerships with businesses and organizations in
the subscribers' local communities.
o New Products and Services - Offer subscribers new products and
services, such as Internet telephony or audio and visual streaming, as
the technologies supporting these products and services become
standardized, stable and profitable.
o Co-marketing Opportunities - Develop affinity based marketing programs
to offer products and services, such as calling cards and long
distance telephone service, to the Company's subscribers in exchange
for fee based revenues.
Network Solutions
Provide a Broad Array of Network Solutions and Communications Services
Based on the Company's belief that a growing number of businesses and
consumers will demand that one company provide all of their communications
needs, the Company plans to continue to add products and services to its
portfolio.
The fragmentation among Internet, intranet/extranet and other corporate
internal network service providers has resulted in users often faced with an
overwhelming array of providers and services from which to choose. Most
importantly, because of the pace of change, most companies already have inferior
non-integrated services and small business is falling behind rapidly in keeping
pace technologically. For example, it is typical for a user to purchase local
loop connectivity from a RBOC or a CLEC, to purchase Internet or other wide area
network connectivity from a separate Internet or other network service provider,
and to purchase network services, like remote management, systems integration
and network security, from one or more other companies.
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The Company believes a total B2B integrated Internet, intranet, and
internal network service provider model is evolving towards providers who are
capable of providing a comprehensive solution by bundling several or all of
these functions efficiently, reliably and on a cost effective basis. As the
Company believes that it is the only ICP based in Oklahoma, it hopes to become
the preferred provider of network solutions statewide.
Effect Geographical Expansion
The Company's strategic plan for its network solutions business
includes the geographic expansion of its integrated communications and network
solutions to businesses, educational institutions, non-profit organizations and
government throughout Oklahoma. This will be accomplished by having the internal
and external ISP sales force refer B2B network and broadband solutions to the
regional sales manager in Oklahoma City or Tulsa so that the Company can provide
turnkey solutions to that local customer. The Company currently has over 50
business network solution clients and believes this business will expand rapidly
in the future as the Company's total solutions ability is offered in every
community where the Company has retail ISP customers, whether through its
dealers or its corporate sales representative. Management believes this market
is underserved in Oklahoma.
Business Units
The Company has built a portfolio of products, services and skill sets
to develop and deliver comprehensive Internet communications solutions to both
business and residential customers. These products and services are organized
under two divisions: Internet Access Services and Network Solutions. Internet
Access Services includes local dial-up and dedicated Internet connectivity as
well as Internet telephony, while Network Solutions includes the design,
implementation and administration of enterprise network solutions, Web page
design and hosting, server co-location, e-commerce and, in the near future,
Internet domain name registration.
Internet Access Services
The Company's core business is the sale of Internet access services to
individual and small business subscribers located in Oklahoma. Through FullNet,
the Company provides its customers with a variety of dial-up and dedicated
connectivity, as well as direct access to a wide range of Internet applications
and resources, including electronic mail and Internet telephony. FullNet's full
range of services include:
o Private label retail and business direct dial-up connectivity to the
Internet
o Secure private networks through the Company's backbone network
o Internet telephony services
The Company's branded and private label Internet access services are
provided through a statewide network with POPs in 23 communities throughout the
state of Oklahoma. POPs are local telephone numbers through which subscribers
can access the Internet. The Company's business services consist of high speed
Internet access services and other services that enable wholesale customers to
outsource their Internet and electronic commerce activities. The Company had
approximately 1,300 subscribers at December 31, 1999. Additionally, FullNet
sells Internet access to other ISPs, which then resell Internet access to their
own customers under their private label or under the "FullNet" brand name.
The Company intends to expand its subscriber base through a marketing
campaign and through acquisitions. The Company is focusing its acquisition
efforts on companies with forward-looking sales and marketing, high-quality
customer service and a solid local market dominance. Since December 31, 1999,
the Company has completed three separate acquisitions of ISP companies,
operating in, respectively, Tahlequah, Oklahoma, Bartlesville, Oklahoma and
Enid, Oklahoma. See Item 1. Description of Business - Recent Events".
Additionally, the Company is expanding its sales and marketing staff in an
effort to increase the Company's subscriber base in the markets in which it
currently operates.
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Currently, the Company offers the following three types of Internet
connections:
o Dial-Up Connections
The simplest connection to the Internet is the dial-up account.
This method of service connects the user to the Internet through the
use of a modem and standard telephone line. Currently, FullNet users
can connect via dial-up at speeds up to 56 Kbps. The Company supports
these users through the use of sophisticated modem banks at the POP
that send data through a router and out to the Internet. The Company
supports the higher speed 56K and ISDN connections with
state-of-the-art digital modems. With a dial-up connection, a user can
gain access to the Internet for e-mail, WWW, file transfer protocol
("FTP"), news groups, and a variety of other useful applications.
o Dedicated Dial-Up Connections
For the user who needs to be connected immediately to the
Internet 100% of the time, the Company offers dedicated dial-up
connections. This service basically sets aside one dial-up modem for
the customer, guaranteeing that the customer can always get a
connection when needed.
o Leased Line Connections
Many businesses and some individuals have a need for more
bandwidth to the Internet in order to support an entire network of
users or a busy Web site. The Company has the capacity to sell a
leased line connection to users. This method of connection gives the
user a full-time high-speed (up to 1.5 mbps) connection to the
Internet through the POP. The leased line solution comes at greater
expense to the user, who must lease a specially dedicated line from
its location to the POP. These lines are leased through the telephone
companies at a high installation and monthly fee. It is the Company's
preference to offer the customer a two-way wireless connection, thus
capturing telephone company revenue and saving the customer money.
Additionally, the Company is in the process of implementing operations
as a CLEC, which will enable it to offer a variety of additional Internet access
services, including broadband digital subscriber line ("DSL") service, with
speeds of 60 to 100 times faster than analog modems. See "Item 1. Description of
Business-Business Units-CLEC Operations." DSL is a new technology being deployed
by telephone companies and CLECs that permits high speed digital transmission
over the existing copper wiring of regular telephone lines. Through FullTel, the
Company's CLEC, the Company plans to offer DSL service in 2000, as well as
offering local dial-up internet access in each of such communities so served.
FullTel's DSL services will be targeted to small to medium sized
businesses, telecommuter and consumer markets. The "dedicated access feature" of
DSL services combined with its high speed and low flat rate pricing are designed
to appeal to the large installed base of integrated services digital network
("ISDN") users. Pricing for the service is low relative to traditional dedicated
access services, making it attractive to small to medium sized businesses, while
at the same time broadening the market to reach small businesses who previously
could not justify the expense of dedicated Internet service.
Pricing is based on the bandwidth of the DSL circuit, and varies
depending on the service speed. FullTel intends to provide complete installation
services, including all customer equipment necessary to provide the DSL service.
The Company believes that its business model offers attractive
economics. Through the use of current DSL technology, the Company can
effectively leverage existing telephone network copper infrastructure to deploy
service more quickly and at lower costs than technologies such as cable modems.
In addition to offering DSL services, the Company intends on deploying
wireless data networks for high speed Internet access in approximately 11 cities
in Oklahoma during 2000.
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The Company believes that its Internet access services provide
customers with the following benefits:
Fast and Reliable Internet Access-The Company has implemented a network
architecture providing exceptional quality and consistency in Internet
services, making the Company the recognized backbone leader in the
Oklahoma ISP industry. The Company offers unlimited, unrestricted and
reliable Internet access at a low monthly price. A user-to-modem ratio
of 8:1 assures access without busy signals. Dial-up access is available
for the following modem speeds: 14.4K, 28.8K, 33.6K, K56Flex, 56K V.90,
ISDN 64K and ISDN 128K. The Company's dial-up access supports all major
platforms and operating systems, including MS Windows, UNIX(R), Mac OS,
OS/2 and LINUX. This allows simplified access to all Internet
applications, including the WWW, email, news and FTP.
Cost-Effective Access-The Company offers high quality Internet
connectivity and enhanced business services at price points that are
generally lower than those charged by other Internet service providers
with national coverage. Additionally, the Company offers pre-bundled
access services packages under monthly or prepaid plans.
Superior Customer Support-The Company provides superior customer
service and support, with customer care and technical personnel
available by telephone and on-line.
CLEC Operations
Through FullTel, the Company's wholly owned subsidiary, the Company is
a fully licensed CLEC in the State of Oklahoma. CLECs are new phone companies
born out the Telecommunications Act, which requires the ILECs, such as the
regional Bell companies, to provide CLECs access to their local facilities, and
to compensate CLECs for traffic originated by ILECs and terminated on the CLEC's
network. By adding its own telephone switch and infrastructure to the existing
telephone network, the Company will be able to offer local services in most of
Oklahoma, including local dial-up and DSL for the Internet access services
provided by the Company. As a CLEC, the Company may subscribe to and resell all
forms of local telephone service in the State of Oklahoma. The Company intends
to build its own network infrastructure, which it believes will eliminate its
current reliance upon the infrastructures of the ILECs. The Company believes
that its CLEC status, combined with the efficiencies inherent in operating its
own network, should result in lower overhead costs and a more predictable
infrastructure, both of which should be to the benefit of the Company's
customers.
While Internet access is the core focus of growth for the Company, the
Company plans to also provide traditional telephone service throughout Oklahoma
and contiguous states. The Company intends to seek approval to operate as a CLEC
in additional states as it expands into such areas.
A core piece of the Company's marketing strategy is the "cross
pollination" between the Company's Internet activities and FullTel's local
dial-up service. By organizing and funding FullTel, the Company expects to gain
local dial-up Internet access to approximately 80% of the State of Oklahoma when
the Company's telephone switch is installed in its data center. In return,
FullTel will gain immediate access to the Company's entire ISP customer base.
The installation of the FullTel data center telephone switching
equipment currently is anticipated to be completed in the third quarter of 2000.
Upon completion, FullTel will extend local access telephone numbers to every
city in which the Company will market, sell and operate its retail FullNet ISP
brand and its B2B network design, connectivity, domain and Web hosting
businesses. It is anticipated that initially, FullTel will provide FullNet with
local telephone access in 35-40 targeted cities where the Company will either
already own ISP operations or have commenced sales and marketing. Also, it is
anticipated that by the end of 2000, the Company will have up to 11 cities where
it will have installed high-speed bandwidth wireless or DSL delivery technology
for its FullNet and FullSolutions divisional sales systems. During 2000, FullTel
expects to conclude the planning and development for the delivery of local and
long distance telephone service for Oklahoma. It is anticipated that the
services will be launched in 2001.
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Network Solutions
Through FullSolutions, a wholly owned subsidiary of the Company, the
Company assists clients with the design, implementation and administration of
enterprise network solutions, Web hosting, Web page design, dedicated B2B
Internet connectivity and e-commerce solutions. FullSolutions offers a broad
array of services to assist its customers in operating reliable networks with
high integrity. These services include design, activation, network management
and optimization, and ongoing support, repair and maintenance. FullSolutions
also offers a broad selection of enhanced business services that are focused on
the practical needs of businesses to support their Internet operations. Finally,
FullSolutions offers technological expertise in groupware, e-mail, networking
and database applications.
FullSolutions provides tailored, value-added IP based network services
for enterprises and consumers. To provide these services, FullSolutions utilizes
its low/fixed latency, high throughput network, employing its advanced network
architecture and the Internet. FullSolutions' service offerings for enterprises
include virtual private networks ("VPNs"), remote access and Web design. These
services enable enterprises to take advantage of standard Internet tools such as
browsers and high performance servers for customized data communications within
an enterprise and between an enterprise and its suppliers, partners and
customers. These services combine the cost advantages, national access and
standard protocols of public networks with the customization, high performance,
reliability and security of private networks.
FullSolutions provides integrated Intranet and Internet network
solutions for its clients. Computer networks are continuing to be key to the
flow of information within corporations and are mission critical to the
Company's customers. The Company is committed to providing the latest up to date
training and certifications for its personnel, thus providing its subscribers
with assurances of top level expertise. The Company's networking engineers
specialize in the development of wide area networks ("WAN"), metropolitan, and
local area networks ("LAN"), including network integration of all computer
systems platforms.
Corporate experience includes in-depth working knowledge of various
broadband technologies, including T-1 lines and wireless, as well as routing and
switching technology, including Lucent Technologies, Cisco Systems, Nortel
Networks and Hybrid Networks. Employees have skills in dealing with the design
and layout of LAN and WAN environments. In fact, FullSolutions has developed and
installed LAN/WAN environments utilizing large-scale deployments of major LAN
network operating systems.
Both directly and through the Company's global reseller network,
FullSolutions also offers customers a broad range of affordable Web hosting
service plans including Web page design, advanced E-commerce, managed dedicated
server, server co-location and dedicated network connectivity solutions. Web
hosting is in essence the rental of space on a server that has a continuous
connection to the Internet. As part of the Company's Web hosting services, the
Company assigns a virtual domain name (www.yourcompany.com) for its customers.
Once the domain name is registered, the Company reserves a portion of hard disk
space on one of its servers, to which the customer can upload the Web site. The
site has its own Web address and can be reached by anyone on the Internet at
anytime, or it may be password protected for access by selected persons. Virtual
hosting allows companies to assign e-mail addresses with their own domain name.
FullSolutions operates a separate subsidiary, FullWeb, which is an
accredited Internet domain name registrar. On July 8, 1999, the Internet
Corporation for Assigned Names and Numbers ("ICANN") announced that FullWeb,
formerly Animus, was one of only approximately 50 initial companies from around
the world which have been approved to act as registrars for the .com, .net and
.org Internet domains. The assignment of Internet domain names for a fee will
complement the current services offered by the Company and give it an
opportunity for tremendous growth in a business that was previously conducted by
only one company. FullWeb has not yet received its registrar license and
agreement with Network Solutions, Inc., which will enable it to begin offering
registration services. FullWeb expects to be able to offer domain name
registrations during 2000.
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Sales and Marketing
Although the Company expects that the bulk of its new subscribers will
come through acquisition of ISPs, the Company's expanded local sales system is
also an integral part of the Company's growth plan. Local sales and marketing
will give the Company brand name recognition that will lead to an increase in
Company sales.
The 15 largest metropolitan areas in the United States comprise only
38% of the U.S. population, leaving the majority of the country's population in
hundreds of smaller markets as potential subscribers. More specifically,
predominantly smaller metropolitan and rural markets may have penetration rates
of 22% and lower, versus larger markets with penetration rates of around 40%. In
addition, in many cases national providers are a long distance phone call in the
Company's markets. Finally, since there is not as much competition in the
smaller metropolitan and rural markets, monthly churn rates are lower and
word-of-mouth referrals are a significant generator of new subscribers. The
Company believes that it has significant opportunities for acquisition and
internal sales growth in these market areas.
The Company focuses on marketing its services to two distinct market
segments: enterprises (primarily small and medium size businesses) and
consumers. By attracting enterprise customers who use the network primarily
during the daytime, and consumer customers who use the network primarily at
night, the Company is able to utilize its network infrastructure more cost
effectively.
Competition
The market for Internet connectivity and related services is extremely
competitive. The Company anticipates that competition will continue to intensify
as the use of the Internet grows. The tremendous growth and potential market
size of the Internet access market has attracted many new start-ups as well as
existing businesses from different industries. The Company believes that a
reliable network, knowledgeable salespeople and the quality of technical support
currently are the primary competitive factors in its targeted market and that
price is usually secondary to these factors.
The Company's current and prospective competitors include, in addition
to other national, regional and local ISPs, long distance and local exchange
telecommunications companies, cable television, direct broadcast satellite,
wireless communications providers and online service providers. While the
Company believes that its network, products and customer service distinguish it
from these competitors, most of these competitors have significantly greater
market presence, brand recognition, financial, technical and personnel resources
than the Company.
ISPs
According to industry sources, there were over 6,700 ISPs in the United
States and Canada in 1998, consisting of national, regional and local providers.
The Company's current primary competitors include other ISPs with a significant
national presence which focus on business customers, such as UUNet Technologies,
Inc., GTE Internetworking (formerly BBN), Concentric Network and DIGEX. While
the Company believes that its level of customer service and support and target
market focus distinguish it from these competitors, such competitors have
greater market share, brand recognition, financial, technical and personnel
resources than the Company. The Company also competes with unaffiliated regional
and local ISPs in its targeted geographic regions.
Telecommunications Carriers
The major long distance companies, also known as interexchange
carriers, including AT&T, MCI WorldCom, Cable & Wireless/IMCI and Sprint, offer
Internet access services and compete with the Company. Reforms in the federal
regulation of the telecommunications industry have created greater opportunities
for ILECs, including the RBOCs, and other CLECs, to enter the Internet
connectivity market. In order to address the Internet connectivity requirements
of the business customers of long distance and local carriers, the Company
believes that there is a move toward horizontal integration by ILECs and CLECs
through acquisitions or joint ventures with, and the wholesale purchase of,
connectivity from ISPs. The MCI/WorldCom merger (and the prior
WorldCom/MFS/UUNet consolidation), GTE's acquisition of BBN, the acquisition by
ICG Communications, Inc. of Netcom, Global Crossing's acquisition of Frontier
Corp. (and Frontier's prior acquisition of Global Center) and AT&T's recent
purchase of IBM's global communications network are indicative of this trend.
Accordingly, the Company expects that it will experience increased competition
from the traditional telecommunications carriers. These telecommunications
carriers, in addition to their greater network coverage, market presence,
financial, technical and personnel resources also have large existing commercial
customer bases.
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Cable Companies, Direct Broadcast Satellite and Wireless Communications
Companies
Many of the major cable companies have announced that they are
exploring the possibility of offering Internet connectivity, relying on the
viability of cable modems and economical upgrades to their networks. Media One
and Time Warner Cablevision, Inc., Tele-Communications, Inc. ("TCI") and At Home
Corporation ("@Home") have announced trials to provide Internet cable service to
their residential customers in select areas. Cable companies, however, are faced
with large-scale upgrades of their existing plant equipment and infrastructure
in order to support connections to the Internet backbone via high-speed cable
access devices. Additionally, their current subscriber base and market focus is
residential, which requires that they partner with business focused providers or
undergo massive sales and marketing and network development efforts in order to
target the business sector. Several announcements also recently have been made
by other alternative service companies approaching the Internet connectivity
market with various new fiber broadband delivery to businesses in major cities,
wireless, DSL and satellite based service technologies.
The companies that own these broadband networks could prevent the
Company from delivering Internet access through the wire and cable connections
that they own. Cable television companies are not currently required to allow
ISPs to access their broadband facilities and the availability and terms of ISP
access to broadband local telephone company networks are under regulatory
review. The Company's ability to compete with telephone and cable television
companies that are able to support broadband transmissions, and to provide
better Internet services and products, may depend on future regulation to
guarantee open access to the broadband networks. However, in January 1999, the
FCC declined to take any action to mandate or otherwise regulate access by ISPs
to broadband cable facilities at this time. It is unclear whether and to what
extent local and state regulatory agencies will take any initiatives to
implement this type of regulations, and whether they will be successful in
establishing their authority to do so. Similarly, the FCC is considering
proposals that could limit the right of ISPs to connect with their customers
over broadband local telephone lines. In addition to competing directly in the
ISP market, both cable and television facilities operators are also aligning
themselves with certain ISPs who would receive preferential or exclusive use of
broadband local connections to end users. If high-speed, broadband facilities
increasingly become the preferred mode by which customers access the Internet
and the Company is unable to gain access to these facilities on reasonable
terms, its business, financial condition and results of operations could be
materially adversely affected.
Online Service Providers
The dominant online service providers, including Microsoft Network,
America Online, Incorporated and Prodigy, Inc., have all entered the Internet
access business by engineering their current proprietary networks to include
Internet access capabilities. The Company competes to a lesser extent with these
service providers, which currently are primarily focused on the consumer
marketplace and offer their own content, including chat rooms, news updates,
searchable reference databases, special interest groups and shopping.
However, America Online's recent announced merger with Time-Warner, its
acquisition of Netscape Communications Corporation and related strategic
alliance with Sun Microsystems will enable it to offer a broader array of
IP-based services and products that could significantly enhance its ability to
appeal to the business marketplace and, as a result, compete more directly with
the Company. CompuServe has also announced that it will target Internet
connectivity for the small to medium sized business market.
The Company believes that its ability to attract business customers and
to market value-added services is a key to its future success. However, there
can be no assurance that the Company's competitors will not introduce comparable
services or products at similar or more attractive prices in the future or that
the Company will not be required to reduce its prices to match competition.
Recently, many competitive ISPs have shifted their focus from individual
customers to business customers.
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Moreover, there can be no assurance that more of the Company's
competitors will not shift their focus to attracting business customers,
resulting in even more competition for the Company. There can be no assurance
that the Company will be able to offset the effects of any such competition or
resulting price reductions. Increased competition could result in erosion of the
Company's market share and could have a material adverse effect on its business,
financial condition and results of operations.
Government Regulations
The following summary of regulatory developments and legislation is not
complete. It does not describe all present and proposed federal, state, and
local regulation and legislation affecting the ISP and telecommunications
industries. Existing federal and state regulations are currently subject to
judicial proceedings, legislative hearings, and administrative proposals that
could change, in varying degrees, the manner in which the Company's businesses
operate. The Company cannot predict the outcome of these proceedings or their
impact upon the ISP and telecommunications industries or upon the Company's
business.
Both the provision of Internet access service and the provision of
underlying telecommunications services are affected by federal, state, local and
foreign regulation. The FCC exercises jurisdiction over all facilities of, and
services offered by, telecommunications carriers to the extent that they involve
the provision, origination or termination of jurisdictionally interstate or
international communications. The state regulatory commissions retain
jurisdiction over the same facilities and services to the extent they involve
origination or termination of jurisdictionally intrastate communications. In
addition, as a result of the passage of the Telecommunications Act, state and
federal regulators share responsibility for implementing and enforcing the
domestic pro-competitive policies of the Telecommunications Act. In particular,
state regulatory commissions have substantial oversight over the provision of
interconnection and non-discriminatory network access by ILECs. Municipal
authorities generally have some jurisdiction over access to rights of way,
franchises, zoning and other matters of local concern.
The Company's Internet operations are not currently subject to direct
regulation by the FCC or any other U.S. governmental agency, other than
regulations applicable to businesses generally. However, the FCC continues to
review its regulatory position on the usage of the basic network and
communications facilities by ISPs. Although in an April 1998 Report, the FCC
determined that ISPs should not be treated as telecommunications carriers and
therefore should not be regulated, it is expected that future ISP regulatory
status will continue to be uncertain. Indeed, in that report, the FCC concluded
that certain services offered over the Internet, such as phone-to-phone IP
telephony, may be functionally indistinguishable from traditional
telecommunications service offerings, and their non-regulated status may have to
be re-examined.
Changes in the regulatory structure and environment affecting the
Internet access market, including regulatory changes that directly or indirectly
affect telecommunications costs or increase the likelihood of competition from
RBOC's or other telecommunications companies, could have an adverse effect on
the Company's business. Although the FCC has decided not to allow local
telephone companies to impose per-minute access charges on ISPs, and that
decision has been upheld by the reviewing court, further regulatory and
legislative consideration of this issue is likely. In addition, some telephone
companies are seeking relief through state regulatory agencies. The imposition
of access charges would affect the Company's costs of serving dial-up customers
and could have a material adverse effect on the Company's business, financial
condition and results of operations.
In addition to the Company's ISP operations, the Company has recently
focused attention on acquiring telecommunications assets and facilities, which
is a regulated activity. Fulltel, the Company's wholly owned subsidiary, has
received CLEC certification in the State of Oklahoma, and an important part of
the Company's growth strategy is obtaining CLEC certification in certain other
states. The Telecommunications Act requires CLEC's not to prohibit or unduly
restrict resale of their services; to provide dialing parity, number
portability, and nondiscriminatory access to telephone numbers, operator
services, directory assistance, and directory listings; to afford access to
poles, ducts, conduits, and rights-of-way; and to establish reciprocal
compensation arrangements for the transport and termination of
telecommunications traffic. In addition to federal regulation of CLEC's, the
states also impose regulatory obligations upon CLEC's. While these obligations
vary from state to state, most states require CLEC's to file a tariff for their
services and charges; require CLEC's to charge just and reasonable rates for
their services, and not to discriminate among similarly-situated customers; to
file periodic reports and pay certain fees; and to comply with certain services
standards and consumer protection laws. As a provider of domestic basic
telecommunications services, particularly competitive local exchange services,
the Company could become subject to further regulation by the FCC and/or another
regulatory agency, including state and local entities.
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The Telecommunications Act has caused fundamental changes in the
markets for local exchange services. In particular, the Telecommunications Act
and the FCC rules issued pursuant to it mandate competition in local markets and
require that ILEC's interconnect with CLEC's. Under the provisions of the
Telecommunications Act, the FCC and state public utility commissions share
jurisdiction over the implementation of local competition: the FCC was required
to promulgate general rules and the state commissions were required to arbitrate
and approve individual interconnection agreements. The courts have generally
upheld the FCC in its promulgation of rules, including a January 25, 1999 U.S.
Supreme Court ruling which determined that the FCC has jurisdiction to
promulgate national rules in pricing for interconnection.
An important issue for CLEC's is the right to receive reciprocal
compensation for the transport and termination of Internet traffic. The Company
believes that, under the Telecommunications Act, CLEC's are entitled to receive
reciprocal compensation from ILEC's. However, some ILEC's have disputed payment
of reciprocal compensation for Internet traffic, arguing that ISP traffic is not
local traffic. Most states have required ILEC's to pay CLEC's reciprocal
compensation. However, in October 1998, the FCC determined that dedicated DSL
service is an interstate service and properly tariffed at the interstate level.
In February 1999, the FCC concluded that at least a substantial portion of
dial-up ISP traffic is jurisdictionally interstate. The FCC also concluded that
its jurisdictional decision does not alter the exemption from access charges
currently enjoyed by ISPs. The FCC established a proceeding to consider an
appropriate compensation mechanism for interstate Internet traffic. Pending the
adoption of that mechanism, the FCC saw no reason to interfere with existing
interconnection agreements and reciprocal compensation arrangements. The FCC
order has been appealed. In addition, there is a risk that state public utility
commissions that have previously considered this issue and ordered the payment
of reciprocal compensation by the ILEC's to the CLEC's may be asked by the
ILEC's to revisit their determinations, or may revisit their determinations on
their own motion. To date, at least one ILEC has filed suit seeking a refund
from a carrier of reciprocal compensation that the ILEC had paid to that
carrier. There can be no assurance that any future court, state regulatory or
FCC decision on this matter will favor the Company's position. An unfavorable
result may have an adverse impact on the Company's potential future revenues as
a CLEC.
As the Company becomes a competitor in local exchange markets, it will
become subject to state requirements regarding provision of intrastate services.
This may include the filing of tarriffs containing rates and conditions. As a
new entrant, without market power, the Company expects to face a relatively
flexible regulatory environment. Nevertheless, it is possible that some states
could require the Company to obtain the approval of the public utilities
commission for the issuance of debt or equity or other transactions which would
result in a lien on its property used to provide intrastate services.
Risk Factors
This Annual Report includes "forward looking statements" within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act. Although the Company believes that its plans, intentions and expectations
reflected in such forward looking statements are reasonable, it can give no
assurance that such plans, intentions or expectations will be achieved.
Important factors that could cause actual results to differ materially from the
Company's forward looking statements are set forth below and elsewhere in this
Annual Report. All forward looking statements attributable to the Company or
persons acting on its behalf are expressly qualified in their entirety by the
cautionary statements set forth below.
Limited Operating History. The Company has a relatively limited
operating history upon which an evaluation of the Company's prospects can be
made. Consequently, the likelihood of success of the Company must be considered
in view of all of the risks, expenses and delays inherent in the establishment
and growth of a new business including, but not limited to, expenses,
complications and delays which cannot be foreseen when a business is commenced,
initiation of marketing activities, the uncertainty of market acceptance of new
services, intense competition from larger more established competitors and other
factors. The Company's ability to achieve profitability and growth will depend
on successful development and commercialization of its current and proposed
services. No assurance can be given that the Company will be able to introduce
its proposed services or market its services on a commercially successful basis.
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Necessity of Additional Financing. In order for the Company to have any
opportunity for significant commercial success and profitability, it must
successfully obtain additional financing, either through borrowings, additional
private placements or an initial public offering, or some combination thereof.
Although the Company is actively pursuing a variety of funding sources, there
can be no assurance that it will be successful in such pursuit.
Limited Marketing Experience. The Company has limited experience in
developing and commercializing new services based on innovative technologies,
and there is limited information available concerning the potential performance
of its hardware or market acceptance of its proposed services. There can be no
assurance that unanticipated expenses, problems or technical difficulties will
not occur which would result in material delays in product commercialization or
that the Company's efforts will result in successful product commercialization.
Uncertainty of Products/Services Development. Although considerable
time and financial resources were expended in the development of the Company's
services and products, there can be absolutely no assurance that problems will
not develop which would have a material adverse effect on the Company. The
Company will be required to commit considerable time, effort and resources to
finalize such development and adapt its products/services to satisfy specific
requirements of potential customers. Continued system refinement, enhancement
and development efforts are subject to all of the risks inherent in the
development of new products/services and technologies, including unanticipated
delays, expenses, technical problems or difficulties, as well as the possible
insufficiency of funds to satisfactorily complete development, which could
result in abandonment or substantial change in commercialization. There can be
no assurance that development efforts will be successfully completed on a timely
basis, or at all, that the Company will be able to successfully adapt its
hardware and/or software to satisfy specific requirements of potential
customers, or that unanticipated events will not occur which would result in
increased costs or material delays in development or commercialization. In
addition, technologies as complex as those planned to be incorporated into the
Company's products/services may contain errors which become apparent subsequent
to commercial use. Remedying such errors could delay the Company's plans and
cause it to incur substantial additional costs.
New Concept; Uncertainty of Market Acceptance and Commercialization
Strategy. The Company's proposed entry into IP telephony represent a new
business concept. As is typical in the case of a new business concept, demand
and market acceptance for a newly introduced product/service is subject to a
high level of uncertainty. Achieving market acceptance for this new concept will
require significant efforts and expenditures by the Company to create awareness
and demand by consumers. The Company's marketing strategy and preliminary and
future marketing plans may be unsuccessful and are subject to change as a result
of a number of factors, including progress or delays in the Company's marketing
efforts, changes in market conditions (including the emergence of potentially
significant related market segments for applications of the Company's
technology), the nature of possible license and distribution arrangements which
may or may not become available to it in the future and economic, regulatory and
competitive factors. There can be no assurance that the Company's strategy will
result in successful product commercialization or that the Company's efforts
will result in initial or continued market acceptance for the Company's proposed
products.
Competition; Technological Obsolescence. The markets that the Company
intends to enter are characterized by intense competition and an increasing
number of potential new market entrants who have developed or are developing
potentially competitive products and/or services. The Company will face
competition from numerous sources, certain of which may have substantially
greater financial, technical, marketing, distribution, personnel and other
resources than the Company, permitting such companies to implement extensive
marketing campaigns, both generally and in response to efforts by additional
competitors to enter into new markets and market new products and services. In
addition, the markets for the Company's proposed products/services are
characterized by rapidly changing technology and evolving industry standards
which could result in product obsolescence or short product life cycles.
Accordingly, the ability of the Company to compete will be dependent upon the
Company's ability to complete development and introduce its product and/or
services into the marketplace in a timely manner, to continually enhance and
improve its software and to successfully develop and market new products. There
can be no assurance that the Company will be able to compete successfully, that
competitors will not develop technologies or products that render the Company's
products and/or services obsolete or less marketable or that the Company will be
able to successfully enhance its products or develop new products and/or
services.
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Risks Relating to the Internet. Use of the Internet by consumers is in
a relatively early state, and market acceptance of the Internet as a medium for
telephone service is subject to uncertainty. The rapid growth of global commerce
and the exchange of information on the Internet and other online networks is
relatively new and still evolving, making it difficult to predict whether the
Internet will prove to be a viable commercial marketplace generally. The Company
believes that its future success will depend on its ability to significantly
increase revenues, which, in turn, will be materially dependent upon the
development and widespread acceptance of the Internet and online services as a
medium for telephone service. The Internet may not prove to be a viable
commercial marketplace because of inadequate development of the necessary
infrastructure, such as reliable network backbones, or complementary services,
such as high-speed modems and security procedures. The Internet has experienced,
and is expected to continue to experience, significant growth in the number of
users and amount of traffic. There can be no assurance that the Internet
infrastructure will continue to be able to support the demands placed on it by
sustained growth. In addition, the viability of the Internet may prove uncertain
due to delays in the development and adoption of new standards and protocols,
the inability to handle increased levels of Internet activity or due to
increased government regulation. If use of the Internet does not continue to
grow, or if the necessary Internet infrastructure or complementary services are
not developed to effectively support growth that may occur, the Company's
business, results of operations and financial condition would be materially
adversely affected.
Potential Government regulations. The Company is subject to state
commission, FCC and court decisions as they relate to the interpretation and
implementation of the Telecommunications Act, the interpretation of CLEC
interconnection agreements in general and the Company's interconnection
agreements in particular. In some cases, the Company may be deemed to be bound
by the results of ongoing proceedings of these bodies or the legal outcomes of
other contested interconnection agreements that are similar to agreements to
which the Company is a party. The results of any of these proceedings could have
a material adverse effect on the Company's business, prospects, financial
condition and results of operations.
Dependence on Key Personnel. The success of the Company depends in
large part upon the continued successful performance of its current executive
officers and key employees, Messrs. Timothy J. Kilkenny, Travis Lane, Wallace L.
Walcher, Roger Laubhan, Jason Ayers and Keith Frye, for the continued research,
development, marketing and operation of the Company. Although the Company has
employed, and will employ in the future, additional qualified employees as well
as retaining consultants having significant experience, if Messrs. Kilkenny,
Lane, Walcher, Laubhan, Ayers or Frye fail to perform any of their duties for
any reason whatsoever, the ability the Company to market, operate and support
its products/services will be adversely affected. While the Company is located
in areas where the available pool of people is substantial, there is also
significant competition for qualified personnel.
Limited Public Market. During the month of February 2000, trading of
the Company's common stock began trading on the OTC Bulletin Board under the
symbol FULO. When a stock begins to trade on the OTC Bulletin Board, it
initially has a single market maker. Although many stocks have several market
makers, while the Company's common stock trades on the OTC Bulletin Board, there
can be no assurance as to whether additional market makers will quote the common
stock. Hence, there can be no assurance that stockholders will be able to sell
their shares should they desire to do so. Any market for the common stock that
may develop, in all likelihood, will be a limited one, and if such a market does
develop, the price may be volatile.
No Payment of Dividends on Common Stock. The Company has not paid any
dividends on its common stock. For the foreseeable future, the Company
anticipates that all earnings, if any, that may be generated from the Company's
operations will be used to finance the growth of the Company and that cash
dividends will not be paid to holders of the common stock.
17
<PAGE>
Penny Stock Regulation. Broker-dealer practices in connection with
transactions in "penny stocks" are regulated by certain penny stock rules
adopted by the SEC. Penny stocks generally are equity securities with a price of
less than $5.00 (other than securities registered on certain national securities
exchanges or quoted on the NASDAQ system). The penny stock rules require a
broker-dealer, prior to a transaction in a penny stock not otherwise exempt from
the rules, to deliver a standardized risk disclosure document that provides
information about penny stocks and the nature and level of risks in the penny
stock market. The broker-dealer also must provide the customer with current bid
and offer quotations for the penny stock, the compensation of the broker-dealer
and its salesperson in the transaction, and, if the broker dealer is the sole
market-maker, the broker-dealer must disclose this fact and the broker-dealer's
presumed control over the market, and monthly account statements showing the
market value of each penny stock held in the customer's account. In addition,
broker-dealers who sell such securities to persons other than established
customers and accredited investors (generally, those persons with assets in
excess of $1,000,000 or annual income exceeding $200,000 or $300,000 together
with their spouse), must make a special written determination that the penny
stock is a suitable investment for the purchaser and receive the purchaser's
written agreement to the transaction. Consequently, these requirements may have
the effect of reducing the level of trading activity, if any, in the secondary
market for a security that is or becomes subject to the penny stock rules. If
the Company's securities are or become subject to the penny stock rules, the
Company's stockholders may find it more difficult to sell their shares.
Customers
In 1999, no customer represented in excess of 10% of the Company's
gross revenues.
Employees
As of December 31, 1999, the Company had 15 employees employed in
engineering, sales, marketing, customer support and related activities and
general and administrative functions. None of the Company's employees is
represented by a labor union, and the Company considers its relations with its
employees to be good. The Company also engages consultants from time to time
with respect to various aspects of its business.
Item 2. Description of Property
The Company currently is headquartered in facilities consisting of
approximately 2,500 square feet in Oklahoma City which is leased on a
month-to-month basis. The Company has negotiated a ten year lease agreement for
approximately 13,600 square feet in another facility in Oklahoma City which will
become the principal executive offices of the Company. The lease agreement
provides for monthly payments starting at approximately $3,300 per month
commencing in January 2000 and increasing to approximately $14,200 per month in
the tenth year of the lease agreement. Completion of the new space is expected
by the end of the second quarter 2000.
The Company also leases space in a number of private facilities in
which the Company's equipment is housed. The monthly lease payments for such
private facilities are approximately $685.
Item 3. Legal Proceedings
The Company is not currently engaged in any material legal proceedings.
It is, however, subject to state commission, FCC and court decisions as they
relate to the interpretation and implementation of the Telecommunications Act,
the interpretation of CLEC interconnection agreements in general and the
Company's interconnection agreements in particular. In some cases, the Company
may be deemed to be bound by the results of ongoing proceedings of these bodies
or the legal outcomes of other contested interconnection agreements that are
similar to agreements to which the Company is a party. The results of any of
these proceedings could have a material adverse effect on the Company's
business, prospects, financial condition and results of operations.
In March 1999, the Company entered into a financial advisory services
agreement with a financial advisory firm, pursuant to which the Company's common
stock and stock options were to be issued to such entity as partial compensation
for services to be performed by the financial advisor. The agreement was the
subject of a dispute between the Company and the financial advisor. This
dispute, which was never the subject of a pending legal proceeding, was resolved
in December 1999 through a settlement agreement that provides for (i) the
issuance of 104,320 shares of the Company's common stock to the financial
advisory firm, (ii) the granting of options to the financial advisory firm for
the purchase of an aggregate of 34,830 shares of the Company's common stock at
an exercise price of $1.00 per share, and (iii) the granting of additional
options to such firm to purchase an aggregate 57,375 shares of the Company's
common stock at an exercise price of $1.25 per share, which become exercisable
on October 7, 2000 and expire on December 29, 2002. Subsequent to the execution
of the settlement agreement, the financial advisory firm exercised its option to
purchase 34,830 shares of the Company's common stock at an aggregate exercise
price of $34,830.
18
<PAGE>
Item 4. Submission of Matters to a Vote of Security Holders
No matters were submitted to a vote of security holders during the
fourth quarter of the fiscal year covered by this report.
PART II
Item 5. Market for Common Equity and Related Stockholder Matters
As of December 31, 1999, there was no public trading market for the
Company's common stock. On February 9, 2000, the Company's common stock began
trading on the OTC Bulletin Board under the ticker symbol FULO.
Number of stockholders
The number of beneficial holders of record of the common stock of the
Company as of the close of business on March 10, 2000 was approximately 100.
Dividend Policy
To date, the Company has declared no cash dividends on its common
stock, and does not expect to pay cash dividends in the next term. The Company
intends to retain future earnings, if any, to provide funds for operations and
the continued expansion of its business.
Recent Sales of Unregistered Securities
During February 1999, the Company issued convertible notes payable
totaling $50,000 to two accredited investors. During April 1999, these notes
were converted into 71,428 shares of common stock pursuant to the terms of the
note agreement. The issuance of the shares was effected pursuant to Section 4(2)
of the Securities Act.
In April 1999, the Company completed an offering of its common stock
effected pursuant to Rule 504 of Regulation D of the Securities Act. Pursuant to
the 504 offering, 648,500 shares of common stock were sold for aggregate gross
proceeds of $648,500. Net proceeds were approximately $494,000, after payment of
placement fees and commissions totaling $64,850 and other offering expenses.
Subsequent to the offering, the Company determined that it and/or others may
have inadvertently failed to comply with certain exemptive and/or broker-dealer
registration requirements in certain of the states in which the common stock was
sold. Consequently, in July 1999, the Company extended rescission offers to
certain of its stockholders who acquired Common Stock in the 504 offering and
who were residents of Florida and Oklahoma. As a result of the rescission offer,
the Company repurchased 11,000 shares for an aggregate repurchase price of
$11,000 plus interest.
19
<PAGE>
Item 6. Management's Discussion and Analysis or Plan of Operation
The following discussion should be read in conjunction with the
Company's Consolidated Financial Statements and notes thereto included in Part
II, Item 7 of this Annual Report. The results shown herein are not necessarily
indicative of the results to be expected in any future periods. This discussion
contains forward-looking statements based on current expectations that involve
risks and uncertainties. Actual results and the timing of events could differ
materially from the forward-looking statements as a result of a number of
factors. For a discussion of the risk factors that could cause actual results to
differ materially from the forward-looking statements, see "Risk Factors" in
Item 1 of this Annual Report and the Company's other periodic reports and
documents filed with the Securities and Exchange Commission.
The following discussion of the results of operations and financial
condition of FullNet Communications, Inc. and its consolidated subsidiaries (the
"Company") should be read in conjunction with the Company's Consolidated
Financial Statements and the Notes thereto included elsewhere in this Annual
Report.
Year Ended December 31, 1999 vs. Year Ended December 31, 1998
Revenues
Access service revenues increased $130,000 from $400,000 for the year
ended December 31, 1998 to $530,000 for the year ended December 31, 1999. This
increase was due to an increase in the number of dial-up customers of the
Company and of the Company's ISP resellers.
Network solutions and other revenues decreased $10,000 from $602,000
for the year ended December 31, 1998 to $592,000 for the year ended December 31,
1999. The Company historically has not actively marketed its network solutions
sales, and has typically made such sales only to its existing customer base.
Operating Costs and Expenses
Cost of access service revenues increased $24,000 from $174,000 for the
year ended December 31, 1998 to $198,000 for the year ended December 31, 1999,
due to the increase in the number of dial-up customers of the Company and of the
Company's resellers. Costs did not increase commensurate with revenues due to
lower negotiated contract rates for the Company's backbone expense.
Cost of network solutions and other revenues increased $31,000 from
$217,000 for the year ended December 31, 1998 to $248,000 for the year ended
December 31, 1999, due to an increase in equipment cost of sales of $23,000 over
the prior year.
Selling, general and administrative expenses increased $369,000 from
$635,000 for the year ended December 31, 1998 to $1,004,000 for the year ended
December 31, 1999. The increase was comprised of an increase in payroll costs of
$181,000 related to a June 1999 stock grant approved by the Board of Directors
and approximately $57,000 related to the hiring of additional personnel, as well
as $35,000 of financial advisory service fees incurred pursuant to an agreement
entered into by the Company with an investment banker in September 1999 and an
increase in accounting, consulting and legal fees of $75,000 in 1999 over 1998.
Depreciation and amortization expense increased $39,000 from $106,000
for the year ended December 31, 1998 to $145,000 for the year ended December 31,
1999. This increase was attributable to less than a full year of goodwill
amortization in 1998 relating to the purchase of Animus (now FullWeb) in March
1998 and a change in estimated lives of goodwill and intangible assets effective
October 1, 1999, which resulted in $43,000 more expense in 1999 than in 1998.
20
<PAGE>
Other Expense
Other expense increased $59,000 from $8,000 for the year ended December
31, 1998 to $67,000 for the year ended December 31, 1999. This increase was
attributable to start up costs of $67,000 incurred related to the Company's CLEC
operations.
Liquidity and Capital Resources
The Company used $243,000 and $31,000 of cash for operating activities
for the years ended December 31, 1999 and 1998, respectively, as a result of a
net loss for the periods. As of December 31, 1999, the Company had $13,000 in
cash and $277,000 in current liabilities, including $75,000 of deferred revenues
that will not require settlement in cash. Capital expenditures relating
primarily to the purchase of computer equipment amounted to $13,000 and $30,000
for the years ended December 31,1999 and 1998, respectively. In addition, the
Company acquired FullWeb in March 1998 for $175,000 cash and issuance of
$175,000 in notes payable. The notes payable were repaid in 1999.
Net cash provided by financing activities was $268,000 and $237,000 for
years ended December 31, 1999 and 1998, respectively. The cash provided in 1999
was due primarily to the sale of equity securities pursuant to Rule 504 of
Regulation D of the Securities Act. In the second quarter of 1999, the Company
received net proceeds of $483,000 from the 504 offering. Of these proceeds,
$175,000 was used to repay two debt obligations of the Company. During the first
quarter 1999, the Company also received $50,000 in proceeds from bridge
financing for working capital. This bridge financing was converted to 71,428
shares of common stock in the second quarter 1999. Net cash provided in 1998 is
comprised of proceeds of $353,000 obtained through the issuance of term notes
payable.
The planned expansion of the Company's business will require
significant capital to fund capital expenditures, working capital needs, debt
service and the cash flow deficits generated by operating losses. The Company's
principal capital expenditure requirements will include:
o the completion of the Company's Network Operations Center
o the purchase and installation of telephone switches in Oklahoma,
Arkansas and Kansas
o purchase and installation of wireless and DSL Internet access
equipment
o mergers and acquisitions
o further development of operations support systems and other automated
back office systems
o domain name registration startup costs
The Company expects to make capital outlays of between $3 million and
$4 million during 2000 in order to continue activities called for in its current
business plan and to fund expected operating losses. As the Company's cost of
developing new networks and services, funding other strategic initiatives and
operating its business will depend on a variety of factors (including, among
other things, the number of subscribers and the service for which they
subscribe, the nature and penetration of services that may be offered by the
Company, regulatory changes, and actions taken by competitors in response to the
Company's strategic initiatives), it is almost certain that actual costs and
revenues will vary from expected amounts, very likely to a material degree, and
that such variations are likely to affect the Company's future capital
requirements. Current cash balances will not be sufficient to fund the Company's
current business plan beyond the next year. As a consequence, the Company
intends to seek additional debt and/or equity financing to fund the Company's
liquidity. There can be no assurance that the Company will be able to raise
additional capital on satisfactory terms or at all.
In the event that the Company is unable to obtain such additional
capital or to obtain it on acceptable terms or in sufficient amounts, the
Company will be required to delay the development of its network or take other
actions. This could have a material adverse effect on the Company's business,
operating results and financial condition and its ability to achieve sufficient
cash flow to service debt requirements.
21
<PAGE>
The ability of the Company to fund the capital expenditures and other
costs contemplated by its business plan and to make scheduled payments with
respect to bank borrowings will depend upon, among other things, its ability to
seek and obtain additional financing within the next year. Capital will be
needed in order to implement its business plan, deploy its network, expand its
operations and obtain and retain a significant number of customers in its target
markets. Each of these factors is, to a large extent, subject to economic,
financial, competitive, political, regulatory and other factors, many of which
are beyond the Company's control.
No assurance can be given that the Company will be successful in
developing and maintaining a level of cash flow from operations sufficient to
permit it to pay the principal of, and interest and any other payments on,
outstanding indebtedness. If the Company is unable to generate sufficient cash
flow from operations to service its indebtedness, it may have to modify its
growth plans, limit its capital expenditures, restructure or refinance its
indebtedness or seek additional capital or liquidate its assets. There can be no
assurance (i) that any of these strategies could be effected on satisfactory
terms, if at all, or (ii) that any such strategy would yield sufficient proceeds
to service the Company's debt or otherwise adequately fund operations.
Certain Accounting Matters
In July 1998, the Financial Accounting Standards Board issued SFAS No.
133 - Accounting for Derivative Instruments and Hedging Activities ("SFAS No.
133"). SFAS No. 133 establishes accounting and reporting standards for
derivative instruments and is effective for 2001. The Company will adopt SFAS
No. 133 by the required effective date. The Company has not determined the
impact on its financial statements from adopting the new standard.
In December 1999, the Securities and Exchange Commission issued Staff
Accounting Bulletin No. 101 - Revenue Recognition ("SAB No. 101"). SAB No. 101
provides guidance on recognition, presentation, and disclosure of revenue in
financial statements. The Company believes that it currently complies with SAB
No. 101.
Other Matters
Employee Stock Grant
Pursuant to a stock bonus approved by the Board of Directors and
granted in June 1999, Roger S. Laubhan and Jason C. Ayers, officers of the
Company, and two other employees were granted 181,055 shares of common stock
equal to 3%, 1%, 2% and 1%, respectively, of the fully diluted common shares
outstanding at such date. Such shares were not issued until January 2000. The
Company recognized $181,055 as compensation expense in 1999 relating to the
grant of common stock to these employees.
Financial Advisory Services Agreements
The Company has entered into two separate agreements with an investment
banker ("Investment Banker") for investment banking and financing services. A
summary of the details of these two agreements follows.
The first agreement is for financing services and has a one-year term
commencing September 1, 1999. If the Investment Banker completes a private
placement for the Company, it will receive 8.5% of the dollar value of the
transaction. If the Investment Banker closes a debt financing for the Company,
it will receive a 5% transaction fee. As of December 31, 1999, no such
transactions had been completed.
The second agreement is for financial advisory and merger/acquisition
services and also has a one-year term commencing September 1, 1999. The fee for
the advisory services is $5,000 per month plus expenses and 100,000 shares of
common stock. Additionally, this agreement calls for merger/acquisition
services. The cost for this service is $2,500 per month plus expenses and a
scaled percentage of any completed acquisition. No such mergers/acquisitions had
occurred as of December 31, 1999.
22
<PAGE>
Year 2000 Issue
Prior to entering the year 2000, or Y2K, the Company developed plans
for implementing, testing and completing any necessary modifications to its key
computer systems and equipment with embedded chips to ensure that they were Y2K
compliant. Subsequent to entering the year 2000, the Company has tested its key
computer systems and to date, it has not encountered any material Y2K related
disruptions or failures of its systems or services, nor has it been notified of
any disruptions or failures in the systems of any of its third parties with whom
it deals. There is an ongoing risk that Y2K related problems could still occur
and the Company will continue to evaluate these risks. However, the Company
believes that the Y2K issue will not pose any significant operational problems
for it.
Item 7. Financial Statements
The consolidated financial statements of the Company are incorporated by
reference from pages F-1 through F-21 of the attached Appendix, and include the
following:
Consolidated Financial Statements of FullNet Communications, Inc.
(1) Reports of Independent Auditors
(2) Consolidated Balance Sheets as of December 31, 1999 and 1998
(3) Consolidated Statements of Operations for Years Ended
December 31, 1999 and 1998
(4) Consolidated Statements of Stockholders' Deficit for Years
Ended December 31, 1999 and 1998
(5) Consolidated Statements of Cash Flows for Years Ended
December 31, 1999 and 1998
(6) Notes to Consolidated Financial Statements for Years Ended
December 31, 1999 and 1998
Item 8. Changes In and Disagreements With Accountants on Accounting and
Financial Disclosure
On October 29, 1999, the Registrant's Board of directors engaged the
accounting firm of Grant Thornton LLP as its independent certifying accountants
for Registrant's fiscal year ending December 31, 1999 to replace the accounting
firm of Cross & Robinson, who was dismissed on October 25, 1999. Cross &
Robinson's reports on the financial statements of the Registrant for the past
two fiscal years ended December 31, 1998 contained no adverse opinion or
disclaimer of opinion and were not qualified or modified as to uncertainty,
audit scope or accounting principles. There have been no disagreements with
Cross & Robinson on any matter of accounting principles or practices, financial
statement disclosure, auditing scope or procedure, or any reportable events as
defined in Item 304(a)(1)(iv) of Regulation S-B.
PART III.
Item 9. Directors, Executive Officers, Promoters and control Persons,
Compliance With Section 16(a) of the Exchange Act
The information required will be contained in the Company's Proxy
Statement for the 2000 Annual Meeting of Stockholders and is incorporated herein
by reference.
Item 10. Executive Compensation
The information required will be contained in the Company's Proxy
Statement for the 2000 Annual Meeting of Stockholders and is incorporated herein
by reference.
Item 11. Security Ownership of Certain Beneficial Owners and Management
The information required will be contained in the Company's Proxy
Statement for the 2000 Annual Meeting of Stockholders and is incorporated herein
by reference.
23
<PAGE>
Item 12. Certain Relationships and Related Transactions
The information required will be contained in the Company's Proxy
Statement for the 2000 Annual Meeting of Stockholders and is incorporated herein
by reference.
Item 13. Exhibits and Reports on Form 8-K
(a) The following documents are filed as part of this report:
(1) Financial Statements are attached hereto as Appendix A and
included herein on pages F-1 through F-21:
(2) The exhibits set forth on the following Exhibit Index are filed
with this Report or are incorporated by reference as set forth
therein.
Exhibit
Number Exhibit Page
- ------- ------- ----
3.1 Certificate of Incorporation, as amended (filed as Exhibit
2.1 to the Company's Registration Statement on Form 10-SB,
file number 000-27031 and incorporated herein by
reference)..................................................... #
3.2 Bylaws (filed as Exhibit 2.2 to the Company's Registration
Statement on Form 10-SB, file number 000-27031 and
incorporated herein by reference).............................. #
* 4.1 Specimen Certificate of the Company's Common
Stock.......................................................... 53
4.2 See the Company's Certificate of Correction to the Amended
Certificate of Incorporation and the Ninth Section of the
Certificate of Incorporation and Articles II and V of the
Company's Bylaws (filed as Exhibits 2.1 and 2.2 to the
Company's Registration Statement on Form 10-SB, file number
000-27031 and incorporated herein by reference)................ #
*10.1 Financial Advisory Services Agreement between the Company
and National Securities Corporation, dated September 17,
1999........................................................... 55
*10.2 Lease Agreement between the Company and BOK Plaza
Associates, LLC, dated December 2, 1999........................ 64
10.3 Interconnection agreement between Registrant and
Southwestern Bell dated March 19, 1999 (filed as Exhibit 6.1
to the Company's Registration Statement on Form 10-SB, file
number 000-27031 and incorporated herein by reference)......... #
10.4 Stock Purchase Agreement between the Company and Animus
Communications, Inc. (filed as Exhibit 6.2 to the Company's
Registration Statement on Form 10-SB, file number 000-27031
and incorporated herein by reference).......................... #
16.1 Letter on change in certifying accountant (filed as Exhibit
16.1 to the Company's Form 8-K dated November 1, 1999 and
incorporated herein by reference).............................. #
*21.1 Subsidiaries of the Company.................................... 86
*27.1 Financial Data Schedule........................................ 87
24
<PAGE>
_____________________________
# Incorporated by reference.
* Filed herewith.
(b) Reports on Form 8-K
A report on Form 8-K was filed by the Company on November 1, 1999,
reporting under "Item 4 - Change in Registrant's Certifying Accountant"
the Company's change in certified public accountant.
A report on Form 8-K was filed by the Company on December 1, 1999,
reporting under "Item 5 - Other Events a letter that was mailed to all
shareholders regarding the quarterly report for the period ending
September 30, 1999.
25
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
REGISTRANT:
FULLNET COMMUNICATIONS, INC.
Date: March 28, 2000 By: /s/ TIMOTHY J. KILKENNY
-----------------------------------------
Timothy J. Kilkenny
President and Chief Executive Officer
Date: March 28, 2000 By: /s/ TRAVIS LANE
-----------------------------------------
Travis Lane
Vice President, Chief Financial and
Accounting Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Date: March 28, 2000 By: /s/ TIMOTHY J. KILKENNY
-----------------------------------------
Timothy J. Kilkenny,
Chairman of the Board and Director
Date: March 28, 2000 By: /s/ LAURA L. KILKENNY
-----------------------------------------
Laura L. Kilkenny, Director
26
<PAGE>
APPENDIX A
Consolidated Financial Statements
FullNet Communications, Inc. and Subsidiaries
Years ended December 31, 1999 and 1998
with Report of Independent Auditors
27
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[THIS PAGE LEFT BLANK INTENTIONALLY]
28
<PAGE>
FullNet Communications, Inc.
Consolidated Financial Statements
Years ended December 31, 1999 and 1998
Contents
Report of Independent Certified Public Accountants...........................F-1
Independent Auditor's Report.................................................F-2
Consolidated Financial Statements
Consolidated Balance Sheet...................................................F-3
Consolidated Statements of Operations........................................F-4
Consolidated Statements of Stockholders' Deficit.............................F-5
Consolidated Statements of Cash Flows........................................F-6
Notes to Consolidated Financial Statements...................................F-8
29
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Report of Independent Certified Public Accountants
Board of Directors
FullNet Communications, Inc.
We have audited the accompanying consolidated balance sheet of FullNet
Communications, Inc. (an Oklahoma corporation) and Subsidiaries, as of December
31, 1999, and the related consolidated statements of operations, changes in
stockholders' deficit, and cash flows for the year then ended. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of FullNet
Communications, Inc. and Subsidiaries, as of December 31, 1999, and the
consolidated results of their operations and their consolidated cash flows for
the year then ended in conformity with generally accepted accounting principles.
GRANT THORNTON LLP
Oklahoma City, Oklahoma
January 21, 2000 (except for Note N, as to which
the date is March 13, 2000)
F-1
<PAGE>
Independent Auditor's Report
Board of Directors
Fullnet Communications, Inc.
We have audited the accompanying consolidated balance sheet of Fullnet
Communications, Inc. and its wholly-owned subsidiaries Animus Communications,
Inc. and Fulltel, Inc. (Oklahoma corporations) as of December 31, 1998 and the
related consolidated statements of operations, shareholder's deficit and cash
flow for the year then ended. These consolidated financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these consolidated financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the consolidated financial statement are free
of material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the consolidated financial statements.
An audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to
above present fairly, in all material respects, the financial position of
FullNet Communications, Inc. and its subsidiaries Animus Communications, Inc.
and FullTel, Inc. as of December 31, 1998, and the results of their operations
and their cash flow for the year then ended in conformity with generally
accepted accounting principles.
CROSS AND ROBINSON
/S/ Cross and Robinson
----------------------------
Certified Public Accountants
Tulsa, Oklahoma
May 21, 1999
F-2
<PAGE>
<TABLE>
<CAPTION>
FullNet Communications, Inc. and Subsidiaries
CONSOLIDATED BALANCE SHEETS
December 31,
ASSETS 1999 1998
----------- -----------
<S> <C> <C>
CURRENT ASSETS
Cash $ 12,671 $ 198
Accounts receivable (note E) 70,306 105,809
Prepaid and other current assets 15,491 337
----------- -----------
Total current assets 98,468 106,344
PROPERTY AND EQUIPMENT, net (notes C, E and H) 117,262 176,999
COST IN EXCESS OF NET ASSETS OF BUSINESSES
ACQUIRED, net of accumulated amortization of $93,512
in 1999 and $23,359 in 1998 (note D) 295,084 367,393
OTHER ASSETS
Deferred income taxes (note F) 17,500 17,500
Deferred offering costs (note N) 30,899 --
Other 5,000 --
----------- -----------
53,399 17,500
----------- -----------
$ 564,213 $ 668,236
=========== ===========
LIABILITIES AND STOCKHOLDERS' DEFICIT
CURRENT LIABILITIES
Accounts payable - trade $ 100,684 $ 129,577
Accrued liabilities 42,424 8,797
Notes payable, current portion (note E) 58,949 5,424
Capital lease obligations (note H) -- 9,039
Note payable Animus purchase (note J) -- 122,405
Cash overdraft -- 8,061
Deferred revenue 74,720 97,379
Due to related party (note I) -- 43,891
----------- -----------
Total current liabilities 276,777 424,573
NOTES PAYABLE, less current portion (note E) 586,922 697,926
CAPITAL LEASE OBLIGATIONS, less current portion (note H) -- 1,153
STOCKHOLDERS' DEFICIT (note G)
Common stock - $.00001 par value and 10,000,000 shares
authorized (1999); $1 par value and 50,000 shares
authorized (1998) 21 500
Common stock issuable, 318,709 shares 318,709 --
Additional paid-in capital 429,295 --
Accumulated deficit (1,047,511) (455,916)
----------- -----------
(299,486) (455,416)
----------- -----------
$ 564,213 $ 668,236
=========== ===========
</TABLE>
The accompanying notes are an integral part of these statements.
F-3
<PAGE>
FullNet Communications, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF OPERATIONS
Year ended December 31,
1999 1998
----------- -----------
REVENUES
Access service revenues $ 530,003 $ 400,016
Network solution and other revenues 591,951 601,771
----------- -----------
1,121,954 1,001,787
OPERATING EXPENSES
Cost of access service revenues 198,399 173,951
Cost of network solution and other revenues 248,415 216,517
Selling, general, and administrative expenses 1,004,266 643,848
Depreciation and amortization 144,670 105,594
----------- -----------
1,595,750 1,139,910
----------- -----------
Loss from operations (473,796) (138,123)
OTHER INCOME (EXPENSE)
Interest expense (77,871) (75,398)
Other (39,928) 4,387
----------- -----------
NET LOSS $ (591,595) $ (209,134)
=========== ===========
BASIC AND DILUTED LOSS PER COMMON SHARE $ (.30) $ (.15)
=========== ===========
WEIGHTED AVERAGE COMMON SHARES OUTSTANDING 1,994,548 1,380,000
=========== ===========
The accompanying notes are an integral part of these statements.
F-4
<PAGE>
<TABLE>
<CAPTION>
FullNet Communications, Inc. and Subsidiaries
CONSOLIDATED STATEMENT OF STOCKHOLDERS' DEFICIT
Years ended December 31, 1999 and 1998
Common stock Common Additional
------------------------ stock paid-in Accumulated
Shares Amount issuable capital deficit Total
----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Balance at January 1, 1998 500 $ 500 $ -- $ -- $ (244,008) $ (243,508)
Distributions of previous Subchapter S earnings -- -- -- -- (2,774) (2,774)
Net loss -- -- -- -- (209,134) (209,134)
----------- ----------- ----------- ----------- ----------- -----------
Balance at December 31, 1998 500 500 -- -- (455,916) (455,416)
Stock split 2,760-for-1, par value reduced from
$1.00 per share to $.00001 per share (note G) 1,379,500 (486) -- 486 -- --
Common stock issued, net of offering expenses
(note G) 637,500 6 -- 483,130 -- 483,136
Common stock issuable relating to services per-
formed for offering, 104,320 shares (note G) -- -- 104,320 (104,320) -- --
Common stock issuable for employee bonuses,
181,055 shares (note G) -- -- 181,055 -- -- 181,055
Conversion of debt to equity (note G) 71,428 1 -- 49,999 -- 50,000
Common stock issuable in exchange for services,
33,334 shares (note G) -- -- 33,334 -- -- 33,334
Net loss -- -- -- -- (591,595) (591,595)
----------- ----------- ----------- ----------- ----------- -----------
Balance at December 31, 1999 2,088,928 $ 21 $ 318,709 $ 429,295 $(1,047,511) $ (299,486)
=========== =========== =========== =========== =========== ===========
</TABLE>
The accompanying notes are an integral part of this statement.
F-5
<PAGE>
<TABLE>
<CAPTION>
FullNet Communications, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF CASH FLOWS
Year ended December 31,
1999 1998
--------- ---------
<S> <C> <C>
Increase (Decrease) in Cash
Cash flows from operating activities
Net loss $(591,595) $(209,134)
Adjustments to reconcile net loss to net cash used in
operating activities
Depreciation and amortization 144,670 105,594
Common stock issuable for services 214,389 --
Net (increase) decrease in
Accounts receivable 35,503 (56,778)
Prepaid and other current assets (15,154) 18,439
Other assets (5,000) --
Net increase (decrease) in
Accounts payable - trade (28,893) 30,049
Accrued and other liabilities 25,566 11,207
Deferred revenue (22,659) 69,323
--------- ---------
Net cash used in operating activities (243,173) (31,300)
Cash flows from investing activities
Purchase of property and equipment (12,624) (30,393)
Acquisition of subsidiary -- (175,000)
--------- ---------
Net cash used in investing activities (12,624) (205,393)
Cash flows from financing activities
Deferred offering costs (30,899) --
Proceeds from borrowings under notes payable 1,088 352,720
Payments on borrowings under notes payable (58,567) (60,718)
Payments on borrowings related to purchase of subsidiary (122,405) (37,055)
Principal payments on capital lease obligations (10,192) (18,059)
Proceeds from borrowings under convertible notes payable 50,000 --
Payments on notes to related party (43,891) --
Issuance of stock, net of offering costs 483,136 --
--------- ---------
Net cash provided by financing activities 268,270 236,888
--------- ---------
NET INCREASE IN CASH 12,473 195
Cash at beginning of year 198 3
--------- ---------
Cash at end of year $ 12,671 $ 198
========= =========
</TABLE>
F-6
<PAGE>
FullNet Communications, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF CASH FLOWS - CONTINUED
Year ended December 31,
1999 1998
--------- ---------
Supplemental cash flow information:
- ----------------------------------
Cash paid for interest $ 78,000 $ 75,000
========= =========
Noncash investing and financing activities:
- ------------------------------------------
Conversion of debt to equity $ 50,000 $ --
========= =========
Common stock issuable relating to services
performed for offering $ 104,320 $ --
========= =========
Debt issued as investment in subsidiary $ -- $ 175,000
========= =========
Acquisition of subsidiary fixed assets $ -- $ 28,251
========= =========
Acquired lease obligations of subsidiary $ -- $ (28,251)
========= =========
The accompanying notes are an integral part of these statements.
F-7
<PAGE>
FullNet Communications, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1999 and 1998
NOTE A - ORGANIZATION AND NATURE OF OPERATIONS
FullNet Communications, Inc. and Subsidiaries (the Company) is a regional
integrated communications provider (ICP) offering communications and network
solutions to individuals, businesses, organizations, educational
institutions, as well as government agencies. Through its four subsidiaries:
FullNet, Inc. (FullNet), FullTel, Inc. (FullTel), and FullSolutions, Inc.
(FullSolutions) and its subsidiary FullWeb, Inc. (FullWeb), the Company
provides Internet, telephone, and network solutions designed to meet
customer needs. Services include:
o Dial up and direct high-speed connectivity to the Internet through the
FullNet brand name
o Backbone services to private label Internet services providers (ISP)
and businesses
o Local telephone access (expected to be operational by the end of the
year 2000)
o Network design, activation, management, optimization, and ongoing
support and maintenance
o Web page design, hosting, co-location and e-commerce solutions
o Domain name registration (expected to be operational by the end of the
second quarter of 2000)
The Company operates and grants credit, on an uncollateralized basis, to
customers in Oklahoma and surrounding states. Concentrations of credit risk
with respect to accounts receivable are limited due to the large number of
customers comprising the Company's customer base and their dispersion across
different industries.
The Company's business plan includes, among other things, expansion of its
Internet access services through mergers and acquisitions, the development
of its local telephone access services, and development of its domain name
registration services. This business plan will require significant capital
to fund capital expenditures, working capital needs, debt service and
operationg cash flow deficits. To achieve the objectives of this business
plan, the Company will be required to seek additional debt and/or equity
financing; however, there can be no assurance that the Company will be able
to raise additional debt and/or equity financing on satisfactory terms or at
all.
Management believes that, given its cash position and debt structure after
the transactions discussed in Note N, operations at the current level can be
sustained through the end of 2000. However, if the Company is unable to
raise additional debt and/or equity financing on satisfactory terms, it will
be required to delay the implementation of its business plan. This could
have a material adverse effect on the Company's business, operating results
and financial condition and its ability to achieve sufficient cash flow for
service debt requirements.
NOTE B - SUMMARY OF ACCOUNTING POLICIES
A summary of the significant accounting policies consistently applied in the
preparation of the accompanying consolidated financial statements follows.
1. Consolidation
-------------
The consolidated financial statements include the accounts of FullNet
Communications, Inc. and its wholly owned subsidiaries. All material
intercompany accounts and transactions have been eliminated.
2. Revenue Recognition
-------------------
Access service revenues are recognized on a monthly basis over the life of
each contract. Contract periods range from monthly to yearly. Deferred
revenues are calculated for those contracts that continue subsequent to the
current year end. Network solution revenues are recognized after services
are performed.
F-8
<PAGE>
FullNet Communications, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
December 31, 1999 and 1998
NOTE B - SUMMARY OF ACCOUNTING POLICIES - CONTINUED
3. Accounts Receivable
-------------------
Management considers accounts receivable to be fully collectible;
accordingly, no allowance for doubtful accounts is required. Amounts
considered to be uncollectible are charged to operations when that
determination is made.
4. Property and Equipment
----------------------
Property and equipment are stated at cost. Depreciation is computed using
the double-declining balance method over the estimated useful lives of the
related assets as follows:
Computers and equipment 5 years
Furniture and fixtures 7 years
5. Cost in Excess of Net Assets of Businesses Acquired
---------------------------------------------------
Cost in excess of net assets of businesses acquired is being amortized using
the straight-line method over estimated periods to be benefited. Prior to
October 1, 1999, the estimated amortization period was fifteen years.
Effective October 1, 1999, management changed this estimated remaining
useful life to six months for the Tulsa acquisition and to 41 months for the
Animus acquisition to more closely reflect the estimated periods benefited
(see Note D). The effect of this change for the year ended December 31, 1999
was to increase amortization expense and net loss by approximately $43,000
and to increase basic and diluted loss per share by $.02.
6. Long-Lived Assets
-----------------
All long-lived assets to be held and used, including cost in excess of net
assets of businesses acquired, are reviewed for impairment whenever events
or changes in circumstances indicate that the related carrying amount may
not be recoverable. When required, impairment losses are recognized based
upon the estimated fair value of the asset. No such events or changes
occurred during the years ended December 31, 1999 or 1998.
7. Income Taxes
------------
Prior to April 8, 1999, income taxes on net earnings of FullNet
Communications, Inc. were payable personally by the stockholders pursuant to
an election as an S corporation under the Internal Revenue Code (IRC).
Effective April 8, 1999, the number of stockholders exceeded the allowable
number under IRC guidelines, the S election was terminated, and the Company
became a C corporation and adopted the liability method of accounting for
income taxes. The Company's subsidiaries are C corporations and have
followed the liability method of accounting for income taxes for all periods
presented.
F-9
<PAGE>
FullNet Communications, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
December 31, 1999 and 1998
NOTE B - SUMMARY OF ACCOUNTING POLICIES - CONTINUED
7. Income Taxes - Continued
------------------------
Under the liability method, deferred income taxes are provided on temporary
differences between the tax basis of an asset or liability and its reported
amount in the consolidated financial statements and carryforwards that will
result in taxable or deductible amounts in future years. Deferred income tax
assets or liabilities are determined by applying the presently enacted tax
rates and laws. Additionally, the Company provides a valuation allowance on
deferred tax assets if, based on the weight of available evidence, it is
more likely than not that some portion or all of the deferred tax assets
will not be realized.
8. Loss Per Common Share
---------------------
Loss per common share is calculated based on the weighted average number of
shares outstanding during the year, including common shares issuable without
additional consideration. Basic and diluted loss per share are the same for
the years ended December 31, 1999 and 1998 as the effect of outstanding
stock options (see Note K) would be antidilutive.
9. Employee Stock Options
----------------------
The Company applies the intrinsic method in accounting for its employee
stock options. Accordingly, compensation expense is only recognized for
grants of options which include an exercise price less than the market price
of the stock at the date of the grant.
10. Advertising
-----------
The Company expenses advertising production costs as they are incurred and
advertising communication costs the first time the advertising takes place.
Advertising expense for the years ended December 31, 1999 and 1998 was
$30,399 and $42,088, respectively.
11. Reclassifications
-----------------
Certain reclassifications have been made to the 1998 financial statements to
conform to the 1999 presentation.
12. Use of Estimates
----------------
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect certain reported amounts and disclosures;
accordingly, actual results could differ from those estimates.
F-10
<PAGE>
FullNet Communications, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
December 31, 1999 and 1998
NOTE C - PROPERTY AND EQUIPMENT
Property and equipment consist of the following at December 31:
1999 1998
-------- --------
Computers and equipment $363,370 $350,747
Furniture and fixtures 5,785 5,785
-------- --------
369,155 356,532
Less accumulated depreciation 251,893 179,533
-------- --------
$117,262 $176,999
======== ========
Depreciation expense for the years ended December 31, 1999 and 1998 was
$72,360 and $84,566, respectively.
NOTE D - COST IN EXCESS OF NET ASSETS OF BUSINESSES ACQUIRED
Cost in excess of net assets of businesses acquired consists of the 1997
purchase of certain business operations in Tulsa, Oklahoma (the Tulsa
acquisition) and the 1998 purchase of Animus (the Animus acquisition) (see
Note J) as follows:
December 31,
--------------------
1999 1998
--------- ---------
Tulsa acquisition, net of accumulated amortization
of $40,355 and $6,998 at December 31, 1999 and
1998, respectively $ 29,645 $ 63,002
Animus acquisition, net of accumulated amortization
of $53,157 and $16,361 at December 31, 1999 and
1998, respectively 265,439 304,391
--------- ---------
$ 295,084 $ 367,393
========= =========
Amortization expense for the years ended December 31, 1999 and 1998 was
$72,310 and $21,028, respectively.
F-11
<PAGE>
FullNet Communications, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
December 31, 1999 and 1998
NOTE E - NOTES PAYABLE
Notes payable consist of the following at December 31:
1999 1998
-------- --------
Note payable to bank, payable in monthly
installments of $8,768, including interest at
9.5%, matures September 2008; collateralized by
property and equipment, accounts receivable, and
Company common stock owned by the President of the
Company; guaranteed by the President of the
Company $564,063 $616,107
Note payable to bank, payable in monthly
installments of $444, including interest at 11.5%,
matures September 2008; collateralized by property
and equipment, accounts receivable, and common
stock owned by the President of the Company;
guaranteed by the President of the Company 29,826 31,048
Note payable to bank, payable in monthly
installments of $798, including interest at 11%,
matures September 2008; collateralized by property
and equipment, accounts receivable, and common
stock owned by the President of the Company;
guaranteed by the President of the Company 51,982 56,195
-------- --------
645,871 703,350
Less current portion 58,949 5,424
-------- --------
$586,922 $697,926
======== ========
Aggregate future maturities of notes payable are as follows:
Year ending December 31
2000 $ 58,949
2001 65,179
2002 71,865
2003 79,239
2004 87,268
Thereafter 283,371
---------
$ 645,871
=========
F-12
<PAGE>
FullNet Communications, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
December 31, 1999 and 1998
NOTE F - INCOME TAXES
Due to net losses, no provision for income taxes was necessary for 1999 or
1998.
The Company's effective income tax rate differed from the federal statutory
rate of 34% as follows at December 31:
1999 1998
--------- ---------
Income taxes at federal statutory rate $(201,142) $ (71,106)
Change in valuation allowance 179,335 20,500
Nondeductible expenses 12,980 --
Exclusion of Subchapter S loss 48,733 55,917
State income taxes, net of federal benefit (15,476) (5,311)
Adjustment of prior year estimates (24,430) --
--------- ---------
Total tax expense $ -- $ --
========= =========
The components of deferred income tax assets were as follows at December 31:
1999 1998
--------- ---------
Deferred income tax assets
Basis difference in intangible assets $ 10,617 $ --
Deferred revenue 28,196 --
Net operating loss 178,522 38,000
Valuation allowance (199,835) (20,500)
--------- ---------
Net deferred income tax asset $ 17,500 $ 17,500
========= =========
Increase in valuation allowance $ 179,335 $ 20,500
========= =========
A valuation allowance is provided for deferred tax assets when it is more
likely than not that some portion or all of the deferred tax assets will not
be realized. At December 31, 1999, the Company has a net operating loss
carryforward of approximately $473,000 which will expire at various dates
through 2019. As such carryforward can only be used to offset future taxable
income of the Company, management has provided a partial valuation allowance
until it is more likely than not that taxable income will be generated.
F-13
<PAGE>
FullNet Communications, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
December 31, 1999 and 1998
NOTE G - STOCKHOLDERS' DEFICIT
On February 15, 1999, the Company's Board of Directors approved an amendment
to the Company's certificate of incorporation to increase authorized common
shares from 50,000 to 10,000,000 shares and to effect a 2760-for-1 stock
split with a reduction in par values from $1.00 to $0.00001. Basic and
diluted loss per share amounts have been restated for all periods presented
to reflect this stock split.
During April 1999, the Company raised $483,136 (net of offering expenses of
approximately $154,000) in an offering of its common stock exempt from
registration requirements of the Securities Act of 1933 (the Securities Act)
pursuant to Rule 504 of Regulation D (504d Offering). Under this offering,
shares were sold at a price of $1.00 per share. In connection with this 504d
Offering, the Company entered into a financial advisory services agreement
(the Agreement) with a financial advisory firm, pursuant to which a maximum
of 200,000 shares of common stock and 90,000 common stock options were to be
issued to such entity as partial compensation for service performed. The
Agreement became the subject of a dispute between the Company and the
financial advisor; however, during December 1999, in settlement of this
dispute, the Company agreed to issue 104,320 shares of common stock and
92,205 stock options to the financial advisory firm. Because the 104,320
shares were issuable for services performed in conjunction with the 504d
Offering, an increase in common stock issuable and a corresponding reduction
in additional paid-in capital was recorded in the accompanying financial
statements based on an estimated fair market value of $1 per share.
Additionally, the terms of the stock options were as follows:
Exercise
price
Shares per share Vesting date Expiration date
------ --------- ----------------- -----------------
34,830 $1.00 December 29, 1999 February 15, 2000
57,375 $1.25 October 7, 2000 December 29, 2002
------
92,205
======
Because these options were issued in connection with the 504d Offering, any
value assigned and credited to additional paid-in capital would result in an
equal reduction of additional paid-in capital from the 504d Offering,
therefore, no accounting recognition has been given to these options.
During February 1999, the Company issued convertible notes payable to
individuals totaling $50,000. During April 1999, these notes were converted
into 71,428 shares of common stock pursuant to the note agreements.
During June 1999, 181,055 shares of common stock were approved for issuance
to employees as a bonus. Compensation expense of $181,055 was recorded based
on an estimated fair market value of $1 per share.
F-14
<PAGE>
FullNet Communications, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
December 31, 1999 and 1998
NOTE G - STOCKHOLDERS' DEFICIT - CONTINUED
OnSeptember 1, 1999, the Company entered into a financial advisory services
agreement with an investment banker (see Note L). Pursuant to this advisory
agreement, 100,000 shares (estimated fair value of $100,000) are to be
issued to this entity as partial compensation for services performed. Such
shares have not been issued as of December 31, 1999; however, the earned
portion of such shares ($33,334 and 33,334 shares) is recorded in the
stockholders' deficit section as common stock issuable.
At December 31, 1999, 318,708 shares of common stock are issuable without
additional consideration.
NOTE H - CAPITAL LEASE OBLIGATIONS
Due to the purchase of Animus during 1998 (see Note J), certain capital
lease obligations were acquired by the Company. Property held under capital
leases consists of the following at December 31, 1998:
Machinery and equipment - computers $ 28,251
Less accumulated depreciation 10,145
---------
Property and equipment under capital leases, net $ 18,106
=========
Capital lease obligations consist of the following at December 31, 1998:
Noncancelable equipment lease, payable in monthly
installments aggregating $6,314, including imputed
interest at 10%; secured by certain equipment $ 6,059
Noncancelable equipment lease, payable in monthly
installments aggregating $4,836, including imputed
interest at 22.92%; secured by certain equipment 4,133
---------
10,192
Less current portion of capital lease obligations 9,039
---------
Long-term capital lease obligations, net $ 1,153
=========
NOTE I - RELATED PARTY TRANSACTIONS
The Company had an outstanding obligation of $43,891 at December 31, 1998 to
a stockholder for advances made in connection with the Animus acquisition
(see Note J).
F-15
<PAGE>
FullNet Communications, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
December 31, 1999 and 1998
NOTE J - PURCHASE OF ANIMUS
On March 26, 1998, the Company purchased 100% of the outstanding common
stock of Animus Communications, Inc. (now FullWeb), an Oklahoma corporation
engaged in the business of providing web hosting services, server
co-locations selling computer equipment, and providing configuration and
maintenance of the equipment.
As a result of the purchase of Animus, the stockholders of Animus received
cash and a note totaling $350,000. An initial cash payment of $175,000 was
paid at closing with the note due over the period of one year without an
interest charge. The financial statements reflect an imputed interest rate
of 11% on the note balance resulting in a total discounted purchase of
$334,460.
On September 31, 1998, the Company made a payment of $45,825 on the
noninterest-bearing note with the balance of $129,175 paid on April 1, 1999.
Since the note payable has been discounted, the principal balance at
December 31, 1998 is reflected in the financial statements as $122,405. This
note was paid off during 1999.
The consolidated financial statements reflect the excess of the purchase
price ($334,460) over the net assets of the company purchased ($15,863) as
well as the amount of amortization for the year ended December 31, 1998
($15,930). Such excess was being amortized using the straight-line method
over fifteen years through September 30, 1999 (see Note A).
The consolidated pro forma results of operations which follow assume that
the acquisition had occurred at the beginning of the period presented. The
calculations include adjustments for depreciation, amortization, and
interest. The pro forma statements may not be indicative of the results that
would have occurred if the acquisition had been effective on the date
indicated or of the results that may be obtained in the future.
1998
----------
Revenues $1,079,480
==========
Net loss $ (197,370)
==========
Net loss per common share $ (.14)
==========
F-16
<PAGE>
FullNet Communications, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
December 31, 1999 and 1998
NOTE K - STOCK OPTIONS
During 1999, the Company issued employee stock options accounted for under
APB Opinion No. 25 and related interpretations. 120,000 shares were issued
to the President of the Company, vest in October 2000, have an exercise
price of $1.15, and expire during October 2003. The other employee options
have terms of ten years when issued and generally vest 33% each year for
three years beginning at the date of grant. The exercise prices of these
options are $1.25 per share and all Company options are not to be issued
below the market price of the Company's stock on the date of grant. However,
because the Company's stock is not actively traded, the market price is
determined in good faith by the Board of Directors. Accordingly, no
compensation expense has been recognized for employee stock options.
Had compensation cost for the Company's employee stock options been
determined based on the fair value at the grant dates consistent with the
method of SFAS No. 123, Accounting for Stock-Based Compensation, the
Company's net loss and loss per share in 1999 would have been as follows:
Net loss
As reported $ (591,595)
Pro forma (599,748)
Basic and diluted loss per share
As reported $ (.30)
Pro forma $ (.30)
The fair value of each option grant is estimated on the date of grant using
the minimum value method because there was no public trading market for the
Company's securities. Assumptions used were as follows: no dividend yield;
risk-free interest rate of 6%; and expected lives of 8 and 3 years.
A summary of the status of the Company's outstanding stock options,
including options issued to a financial advisory firm (see Note G), as of
December 31, 1999 and changes during the year then ended is presented below.
Weighted average
Shares exercise price
------- ----------------
Outstanding at beginning of year - $ -
Granted 369,839 1.19
Exercised - -
Forfeited -
-------
Outstanding at end of year 369,839
=======
Options exercisable at year end 34,830
========
Weighted average fair value of employee
options granted during the year $ .28
F-17
<PAGE>
<TABLE>
<CAPTION>
FullNet Communications, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
December 31, 1999 and 1998
NOTE K - STOCK OPTIONS - CONTINUED
Options outstanding Options exercisable
---------------------------------- ----------------------
Weighted-
average Weighted- Weighted-
Number remaining average Number average
outstanding contractual exercise exercisable exercise
at 12/31/99 life price at 12/31/99 price
----------- ----------- --------- ----------- ---------
<S> <C> <C> <C> <C> <C>
Exercise prices
$1.00 34,830 .12 years $1.00 34,830 $1.00
$1.15 120,000 3.83 years $1.15 - -
$1.25 215,009 8.13 years $1.25 - -
----------- -----------
369,839 $1.19 34,830 $1.00
=========== ===========
</TABLE>
NOTE L - COMMITMENTS AND CONTINGENCIES
Advisory Agreements
-------------------
The Company has entered into two separate agreements with an investment
banker for investment banking and financial services. A summary of the
details of these two agreements follows.
The first agreement is for financial services and has a term of September 1,
1999 through August 31, 2000. If the investment banker completes a private
placement for the Company, it will receive 8.5% of the dollar value of the
transaction (see Note M related to January private placement). If the
investment banker closes a debt financing for the Company, it will receive a
5% transaction fee. As of December 31, 1999, no such transactions had been
completed.
The second agreement is for financial advisory and merger/acquisition
services and also has a term of September 1, 1999 through August 31, 2000.
The fee for the advisory services is $5,000 per month plus expenses (up to
$5,000 per month) and 100,000 shares of common stock. See Note G for
discussion of the stock transaction. Additionally, this agreement calls for
merger/acquisition services. The cost for this service is $2,500 per month
plus expenses (up to $5,000 per month) and a scaled percentage of any
completed acquisition. See Note M related to acquisitions after year end. No
such mergers/acquisitions had occurred as of December 31, 1999.
F-18
<PAGE>
FullNet Communications, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
December 31, 1999 and 1998
NOTE L - COMMITMENTS AND CONTINGENCIES - CONTINUED
Operating Leases
----------------
The Company leases certain office facilities, equipment, and phone lines
used in its operations under operating leases expiring at various dates
through 2009 which provide for payments as follows:
Year ending December 31
2000 $ 145,076
2001 135,334
2002 163,798
2003 129,496
2004 136,270
Thereafter 783,553
----------
$1,493,527
==========
Rental expense for all operating leases for the years ended December 31,
1999 and 1998 was $192,316 and $28,010, respectively.
NOTE M - FAIR VALUE OF FINANCIAL INSTRUMENTS
The Company's financial instruments are held for purposes other than
trading. The estimated fair value of notes payable is the discounted amount
of future cash flows using the estimated current rate for similar
borrowings.
1999
--------------------
Carrying Fair
amount value
-------- --------
Financial liabilities
Notes payable $646,000 $638,000
NOTE N - SUBSEQUENT EVENTS
Mergers and Acquisitions
------------------------
On January 25, 2000, the Company entered into an asset purchase agreement
with FullNet of Tahlequah, Inc., an Oklahoma corporation, (FOT) in which
FullNet purchased substantially all of FOT's assets, including approximately
400 individual and business Internet access accounts. The Company paid FOT
approximately $98,000, including approximately $36,000 in cash and a note
payable for approximately $62,000. The note is payable in eighteen monthly
installments and does not bear interest.
F-19
<PAGE>
FullNet Communications, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
December 31, 1999 and 1998
NOTE N - SUBSEQUENT EVENTS - CONTINUED
Mergers and Acquisitions - Continued
------------------------------------
On February 4, 2000, the Company entered into an asset purchase agreement
with David Looper, d/b/a FullNet of Bartlesville (FOB), an Oklahoma sole
proprietorship in which the Company purchased substantially all of FOB's
assets, including approximately 400 individual and business Internet access
accounts. The Company paid FOB approximately $178,000, including $128,000 in
Company common stock (42,744 shares), and a note payable for approximately
$50,000. The note bears an interest rate of 8% per annum with the principal
and interest thereon payable on the earlier to occur of (a) the Company's
closing of any private equity placement in excess of $351,000, (b) the
closing of any underwritten offering of the Company's common stock, or (c)
one year from the closing date of the asset purchase agreement.
On February 29, 2000, the Company entered into an agreement and plan of
merger (Merger Agreement) with Harvest Communications, Inc. (Harvest), an
Oklahoma corporation, pursuant to which Harvest merged with and into
FullNet, Inc., a wholly owned subsidiary of the Company. Harvest had
approximately 2,500 individual and business dial-up Internet access
accounts, fifteen wireless Internet access accounts, and 35 web-hosting
accounts. Pursuant to the terms of the Merger Agreement, the Company paid
Harvest approximately $1,900,000, including $1,600,000 in Company common
stock (537,500 shares), a note payable for $175,000, and $125,000 in cash.
The note bears an interest rate of 8% per annum, with the principal and
interest thereon payable on the earlier to occur of (a) the closing of any
single funding (whether debt or equity) obtained by the registrant
subsequent to the date of the Merger Agreement in an aggregate amount of at
least $2,000,000, (b) the closing of any underwritten offering of Company
common stock, or (c) March 6, 2001.
These transactions will be accounted for as purchases. The purchase price
will be allocated to the underlying net assets purchased based on their fair
market values at the respective acquisition date. Additionally, prior to
acquisition, FOT, FOB, and Harvest were customers of the Company's ISP
access services.
Financing
---------
During February 2000, the Company raised an aggregate $135,600 in a private
offering of its common stock exempt from the registration requirements of
the Securities Act pursuant to Rule 504 of Regulation D. Pursuant to this
offering, 45,200 shares were issued at a price of $3.00 per share. At
December 31, 1999, related offering costs of approximately $11,000 have been
deferred and will be charged against the gross proceeds of the offering in
2000.
On February 29, 2000, the Company entered into an agreement with certain
individuals of a firm that provides financial advisory services to the
Company pursuant to which the Company obtained a bridge loan of $275,000.
The agreement provides for the issuance of warrants to purchase 137,500
shares of the Company's common stock at $.01 per share, and provides for
certain registration rights. The loan bears an interest rate of 14% per
annum and requires monthly interest payments. The loan term is for six
months, and is extendable for two ninety-day periods with issuance of an
additional warrant for 137,500 shares exercisable at $.01 per share for each
extension.
F-20
<PAGE>
FullNet Communications, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
December 31, 1999 and 1998
NOTE N - SUBSEQUENT EVENTS - CONTINUED
Financing - Continued
---------------------
During March 2000, the Company entered into two agreements with third-party
individuals pursuant to which the Company obtained bridge loans for
$500,000. The agreements provide for the issuance of warrants to purchase
100,000 shares of the Company's common stock at $.01 per share, and provide
for certain registration rights. The loans bear interest at 14% per annum
and require quarterly interest payments. The loan terms are for six months,
and are extendable for two ninety-day periods with issuance of an additional
warrant for 10,000 shares at $.01 per share for each extension.
The Company has not yet determined the value of the warrants associated with
these loans. Any value assigned to these warrants will result in a discount
on the loans and increase their effective interest rate.
During January through March 13, 2000, the Company issued 235,400 stock
options to employees subject to generally the same terms discussed in Note
K. These options all have an exercise price of $3.00 per share.
F-21
EXHIBIT 4.1
[Logo] FULLNET COMMUNICATIONS, INC. CUSIP 359851 10 2
INCORPORATED UNDER THE LAWS OF THE STATE OF OKLAHOMA
COMMON STOCK
SEE REVERSE FOR
CERTAIN DEFINITIONS
NUMBER SHARES
- --------------------------------------------------------------------------------
This
certifies
that
is the owner of
- --------------------------------------------------------------------------------
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK, $.00001 PAR VALUE, OF
FULLNET COMMUNICATIONS, INC.
(HERINAFTER CALLED THE "Corporation"), transferable on the books of the
Corporation by the holder hereof in person or by duly authorized attorney,
upon surrender of the Certificate properly endorsed. This certificate and
the shares represented hereby are issued and shall be held subject to all
provisions of the Certificate of Incorporation, as amended, and the Bylaws
of the Corporation, as amended (copies of which are on file at the office
of the Transfer Agent), to all of which the holder of this Certificate by
acceptance hereof assents. This Certificate is not valid unless
countersigned and registered by the Transfer Agent and register. Witness
the facsimile seal of the Corporation and the facsimile signatures of its
duly authorized officers.
DATE:
/s/ TIMOTHY J. KILKENNY Countersigned:
PRESIDENT SECURITIES TRANSFER CORPORATION
[SEAL] P.O. BOX 701629
Dallas, Tx. 75370
By:
/s/ LAURA L. KILKENNY
SECRETARY /s/
TRANSFER AGENT - AUTHORIZED SIGNATURE
<PAGE>
FULLNET COMMUNICATIONS, INC.
TRANSFER FEE $15.00 PER NEW CERTIFICATE ISSUED
A FULL STATEMENT OF THE RELATIVE RIGHTS, INTEREST, PREFERENCES AND
RESTRICTIONS OF EACH CLASS OF STOCK WILL BE FURNISHED BY THE
CORPORATION TO ANY SHAREHOLDER UPON WRITTEN REQUEST, WITHOUT CHARGE.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT --------Custodian---------
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to
survivorship and not as Minors Act----------------
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
For value received, ..............hereby sell, assign and transfer unto
Please Insert Social Security or other
identifying number of assignee.
[GRAPHIC OMITTED] ...............................................
................................................................................
Please print or typewrite name and address including postal zip code of assignee
................................................................................
................................................................................
..........................................................................Shares
of the Common Stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint..............................................
................................................................................
Attorney to transfer the said stock on the books of the within-named Corporation
with all power of substitution in the premises.
Dated...................
Signature:
X.........................................
X.........................................
Signature Guarantee:
THE SIGNATURE(S) SHOULD BE MEDALLION STAMP GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION PURSUANT TO S.E.C. RULE 17AD-15
signature(s) guaranteed by:
X NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the Certificate, in every particular, without
alteration or enlargement, or any change whatever.
EXHIBIT 10.1
September 17, 1999
FullNet Communications, Inc.
200 North Harvey Street
Suite 1704
Oklahoma City, OK 73102
Attention: Timothy J. Kilkenny, President and Chief Executive Officer
Re: Engagement Agreement: Financial Advisory Services
Dear Tim:
This agreement ("Agreement") commences effective September 1, 1999 between
FullNet Communications, Inc., an Oklahoma corporation (the "Company"), and
National Securities Corporation, a registered broker/dealer ("National").
Pursuant to this Agreement, National will provide services to the Company as set
forth below:
1. Purpose.
--------
The Company hereby retains National on an exclusive basis during the
Engagement Period (as herein after defined) to render financial advisory
services to the Company relating to investment banking, shareholder value and
merger and acquisitions matters (as more fully described in Section 3 below),
upon the terms and conditions as set forth herein (provided, however, National
acknowledges the pre-existing relationship between the Company and William &
Waddell, Inc., and agrees that the existence of such relationship shall not be
deemed to be a breach of this Section 1). In performance of these duties,
National shall provide the Company with the benefits of its best judgment and
efforts. It is understood and acknowledged by the parties that the value of
National's advice is not measurable in any quantitative manner, and that
National shall not be obligated to spend any specific amount of time performing
duties hereunder.
2. Engagement Period.
------------------
The term of this agreement shall be for twelve months commencing effective
September 1, 1999 and terminating as of August 31, 2000, unless extended by
mutual agreement of National and the Company or earlier terminated as provided
in sections 10 and 14(b) hereof (the "Engagement Period").
3. Financial Advisory Services.
----------------------------
A. Services.
---------
National will provide such of the following advisory services to the
Company as are appropriate and as the Company may request:
(i) Provide general financial and strategic advice to assist the
Company in increasing shareholder value;
(ii) Advise the Company in developing and implementing a
financial/public relations strategy;
<PAGE>
FullNet Communications, Inc.
September 17, 1999
Page 2
(iii) When deemed appropriate by National, advise the Company on
exchange listing issues;
(iv) Advise on capitalization structure and capital needs of the
Company;
(v) Advise on the Company's quarterly forecasting and financial
reporting;
(vi) Advise on the Company's acquisition models, analysis and purchase
procedures;
(vii) Advise in the preparation and/or modification of the Company's
business plan; and
(viii) Provide general corporate finance, capital planning and strategic
advice to the Company.
B. Compensation.
-------------
(i) For serving as financial advisor, the Company agrees to pay
National a financial advisory fee of $5,000 upon execution of
this Agreement and $5,000 monthly due on or before the 1st day of
each month during the Engagement Period (collectively, the
"Financial Advisory Fees"). Should a sale of the Company occur
during the Engagement Period, all unpaid Financial Advisory Fees
shall be due and payable. Additionally, the Company shall issue
to National or its designees, promptly upon notification by
National of the names of its designees, if any, and the
respective share amounts to be issued to such persons, an
aggregate 100,000 shares (the "Shares") of its common stock
("Common Stock"). Such Shares shall be "restricted," as such term
is defined under Rule 144 of the Securities Act of 1933, as
amended (the "Securities Act"), and shall contain a restrictive
legend restricting the transferability thereof. Compensation
payable to National under this Agreement shall be in addition to
the amounts payable under the separate Engagement Agreement
relating to Private Placement/Financings dated the date of this
Agreement (the "Private Placement/Financings Agreement");
provided, however, to the extent that a Business Combination is
consummated by the Company, and a Business Combination
Transaction Fee is payable to National pursuant to Section 4(B)
of this Agreement, no Financing Fees or Placement Fees (as such
terms are defined in the Private Placement/Financings Agreement),
shall be payable to National under the Private
Placement/Financings Agreement in respect of such transaction
unless a separate Private Placement or Debt Financing (as such
terms are defined in the Private Placement/Financings Agreement)
is consummated in connection with the Business Combination.
(ii) If the Company at any time proposes to register any shares of its
Common Stock under the Securities Act, whether or not for sale
for its own account, other than an offering primarily or
exclusively to employees, and the registration form to be used
may also be used for the registration of Common Stock (a
"Piggyback Registration") owned by National or its designees
(collectively, the "National Group"), the Company shall at such
time notify the National Group at least 30 days prior to the
filing of any registration statement with respect thereto. Upon
the receipt of a written request of any member of the National
Group made within ten (10) days after such notice (which request
shall specify the Common Stock intended to be registered), the
Company will use its best efforts, subject to the limitations set
forth below, to include in such registration the Shares. For the
purposes of this Section 3(B)(ii), best efforts shall not require
the Company to reduce the amount or sale price of the securities
it proposes to register. Each such request shall also contain an
undertaking from the participating member(s) of the National
Group to provide all such information and material and to take
all actions as may be required by the Company in order to permit
the Company to comply with all applicable federal and state
securities laws. Notwithstanding any other provision of this
Section 3(B)(ii), in the case of an underwritten public offering,
if the managing underwriter determines that market factors
require a limitation of the number of shares to be underwritten,
the managing underwriter may limit, or exclude entirely, the
number of shares (including those of the participating members of
the National Group) to be included in such Piggyback
Registration. If limited, the Shares of the participating members
of the National Group will be registered pro rata with any other
holders of Common Stock or Common Stock equivalents having
registration rights.
<PAGE>
FullNet Communications, Inc.
September 17, 1999
Page 3
The participating members of the National Group shall pay all
sales commissions or other similar selling charges with respect
to Common Stock sold by them pursuant to a registration. The
Company shall pay all registration and filing fees, fees and
expenses of compliance with federal and state securities laws,
printing expenses, messenger and delivery expenses, and the fees
and disbursements of the Company's counsel and accountants,
unless the applicable state securities laws require that
stockholders whose securities are being registered pay their pro
rata share of such fees, expenses and disbursements, in which
case each stockholder (including the participating members of the
National Group) participating in the registration shall pay its
pro rata share of all such fees, expenses and disbursements based
on its pro rata share of the total number of shares being
registered.
4. Merger/Acquisition Services.
----------------------------
A. Services.
---------
During the Engagement Period, the Company and National agree as follows:
National will advise the Company with respect to the structure and financial
analysis of potential mergers, exchanges of capital stock, asset acquisitions or
other similar business combinations, including equity investment in another
company (each, a "Business Combination") in which the Company may participate.
National may also introduce the Company to persons or entities (each, a "Target
Business") with whom the Company may effect a Business Combination. The parties
acknowledge and agree that the Company previously has engaged in discussions
relating to a possible Business Combination with the entities identified on
Schedule A, attached hereto (each, a "Company-identified Business"), and that
none of such entities shall be considered a Target Business for purposes of this
Agreement.
B. Compensation.
(i) In compensation for the services set forth in 4 (A), the Company
agrees to pay National $2,500 monthly due on or before the 1st
day of each month during the Engagement Period (the "Business
Combination Advisory Fee.")
(ii) Additionally, the Company agrees that if (a) a Business
Combination is consummated with a Target Business, National shall
be entitled to a cash fee equal to a percentage of the value of
consideration paid for such Business Combination as follows: 5%
on the first $1,000,000 of consideration; 4% of the second
$1,000,000 of consideration; 3% of the third $1,000,000 of
consideration; 2% of the fourth $1,000,000 of consideration; and
1% of the consideration over $4,000,000, and (b) a Business
Combination is consummated with a Company-identified Business,
National shall be entitled to a cash fee equal to the greater of
$5,000 and a percentage of the value of consideration paid for
such Business Combination as follows: 2 1/2% on the first
$1,000,000 of consideration, 2% of the second $1,000,000 of
consideration, 1 1/2% of the third $1,000,000 of consideration,
1% of the fourth $1,000,000 of consideration, and .5% of the
consideration over $4,000,000 (any cash fee payable under (a) or
(b), collectively, the "Business Combination Transaction Fee").
<PAGE>
FullNet Communications, Inc.
September 17, 1999
Page 4
(iii) If the consideration paid by or to the Company in connection with
any Business Combination is in securities, the closing price of
such securities on the last trading date immediately prior to the
closing of the Business Combination shall be deemed to be the
value of the consideration as hereinabove used. If the securities
are not publicly traded, the value shall be the fair market value
of the securities. The monies shall be payable by wire transfer
to National at the closing of such Business Combination, except
that any Business Combination Transaction Fee in respect of any
contingent consideration shall be payable whenever such
consideration is paid.
(iv) For any Business Combination for which National has introduced a
Target Business during the Engagement Period, National shall be
entitled to receive the Business Combination Transaction Fee with
respect to any such Business Combination which is completed by
the Company at any time from the date hereof until a period
ending twelve months after the termination of the Engagement
Period.
5. Relationships with Others; Confidentiality.
-------------------------------------------
The Company acknowledges that National or its affiliates are in the
business of providing investment banking financial advisory and consulting
services to others. Nothing herein contained shall be construed to limit or
restrict National in conducting such business with respect to others, or in
rendering such advise to others. In connection with the rendering of services
hereunder, National has been or will be furnished with confidential information
concerning the Company including, but not limited to, financial statements and
information, cost and expense data, production data, trade secrets, marketing
and customer data, and such other information not generally obtained from public
or published information or trade sources. Such information shall be deemed
"Confidential Material" and, except as specifically provided herein, shall not
be disclosed by National without prior written consent of the Company. In the
event National is required by applicable law or legal process to disclose any of
the Confidential Material, it is agreed that National will deliver to the
Company prompt notice of such requirement prior to disclosure of same to permit
the Company to seek an appropriate protective order and/or waive compliance of
this provision. If, in the absence of a protective order or receipt of written
waiver, National is nonetheless, in the written opinion of counsel, compelled to
disclose any Confidential Material, National may do so without liability
hereunder provided that notice of such prospective disclosure is delivered to
the Company prior to actual disclosure. Following the termination of this
Agreement, National shall deliver to the Company all Confidential Material.
6. Financial Advisor's Liability.
------------------------------
In the absence of gross negligence or willful misconduct on the part of
National, National shall not be liable to the Company or to any officer,
director, employee, agent, representative, stockholder or creditor of the
Company for any action or omission of National or any of its officers,
directors, employees, agents, representatives or stockholders in the course of,
or in connection with, rendering or performing any services hereunder.
<PAGE>
FullNet Communications, Inc.
September 17, 1999
Page 5
7. Limitation Upon the Use of Advice and Services.
-----------------------------------------------
(a) No person or entity, other than the Company or any of its subsidiaries
or directors or officers of each of the foregoing, shall be entitled
to make use of or rely upon the advice of National to be given
hereunder, and the Company shall not transmit such advice to, or
encourage or facilitate the use or reliance upon such advice by others
without the prior consent of National.
(b) It is clearly understood that National, for services rendered under
this Agreement, makes no commitment whatsoever to recommend or advise
its clients to purchase the securities of the Company. Research
reports or corporate finance reports that may be prepared by National
will, when and if prepared, be done solely on the merits or judgment
of analysts of National or any corporate finance personnel of
National.
(c) It is clearly understood that National, for services rendered under
this Agreement, makes no commitment whatsoever to make a market in any
of the Company's securities on any stock exchange or in any electronic
marketplace. Any decision by National to make a market in any of the
Company's securities shall be based solely on the independent judgment
of National's management, employees, and agents.
(d) Use of the National's name in annual reports or any other report of
the Company or releases by the Company must have the prior approval of
National unless the Company is required by law to include National's
name in such annual reports, other report or release of the Company,
in which event National will be furnished with copies of such annual
reports or other reports or releases using National's name in advance
of publication by the Company.
8. Indemnification.
----------------
Since National shall be acting on behalf of the Company, the Company agrees
to indemnify National in accordance with the provisions of Annex A hereto, which
is incorporated by reference and made a part hereof.
9. Expenses.
---------
The Company shall reimburse National for all of its reasonable actual
out-of-pocket expenses, including but not limited to travel, legal fees,
printing, and other expenses, incurred in connection with the provision of
services hereunder; provided, however, National agrees not to accrue or incur
expenses in any monthly period in excess of $5,000 without the consent of the
Company. National will not bear any of the Company's legal, accounting, printing
or other expenses in connection with any transaction considered or consummated
hereby. It also is understood that neither National, nor the directors,
employees and agents of National, will be responsible for any fees or
commissions payable to any finder or to any other financial or other advisor
utilized or retained by the Company. The Company shall deposit herewith $1,000
for reimbursable expenses, such expenses to be billed on a monthly basis and be
paid within ten days of receipt.
<PAGE>
FullNet Communications, Inc.
September 17, 1999
Page 6
10. Termination.
------------
This Agreement may be terminated by National or the Company at any time by
written notice to the other party, without liability or continuing obligation
except as set forth in the following sentence. No termination shall affect: (a)
any Financial Advisory Fees or Business Combination Advisory Fees earned by
National up to the date of termination, (b) the issuance of the Shares pursuant
to Section 3(B)(i) hereof, (c) any Business Combination Transaction Fees payable
to National after termination pursuant to Section 4(B)(ii) hereof, (d) the
reimbursement of expenses as described in Section 9 hereof, (e) all obligations
of the Company under Section 8 hereof, and (f) the Indemnification Provisions
attached hereto as Annex A which are incorporated herein, all of which shall
remain operative and in full force and effect.
11. Limitation of Liability.
------------------------
The liability of National pursuant to this Engagement Letter shall be
limited to the aggregate fees received by National hereunder, which shall not
include any liability for incidental, consequential or punitive damages
12. Discretion.
-----------
Nothing contained herein shall require the Company to enter into any
transaction presented to it by National, which decision shall be at the
Company's sole discretion.
13. Severability.
-------------
Every provision of this Agreement is intended to be severable. If any term
or provision hereof is deemed unlawful or invalid for any reason whatsoever,
such unlawfulness or invalidity shall not affect the validity of this Agreement.
14. Miscellaneous.
--------------
(a) Any notice or communication between parties hereto shall be
sufficiently given if sent by certified or registered mail, postage
prepaid, or faxed and confirmed as follows:
If to the Company, addressed to it at:
FullNet Communications, Inc.
200 North Harvey Street, Suite 1704
Oklahoma City, OK 73102
Attention: Timothy J. Kilkenny, President and Chief Executive Officer
Facsimile number: (405) 236-8201
<PAGE>
FullNet Communications, Inc.
September 17, 1999
Page 7
With copies to:
Jeanette C. Timmons, Esq.
Day Edwards Federman Propester & Christensen, P.C.
210 Park Ave., Suite 2900
Oklahoma City, OK 73102
Facsimile number: (405) 236-1012
Or, if to National, addressed to it at:
National Securities Corporation 1001 Fourth Avenue, Suite 2200
Seattle, Washington 98154
Attention: ___________________
Facsimile number: (206) 343-6106
With copies to:
Such notice or other communication shall be deemed to be given on the date
of receipt.
(a) If National shall cease to do business, the provisions hereof relating
to duties of National and compensation by the Company as it applies to
National shall thereupon cease to be in effect, except for the
Company's obligation of payment for services rendered prior thereto.
This Agreement shall survive any merger of, acquisition of, or
acquisition by National and after any such merger or acquisition shall
be binding upon the Company and the corporation surviving such merger
or acquisition.
(b) This Agreement embodies the entire agreement and understanding between
the Company and National and supersedes any and all negotiations,
prior discussions and preliminary and prior agreements and
understandings related to the subject matter hereof, and may be
modified only by a written instrument duly executed by each party.
(c) This Agreement has been duly authorized, executed and delivered by and
on behalf of the Company and National.
(d) This Agreement shall be construed and interpreted in accordance with
the laws of the State of Washington, without giving effect to
conflicts of laws.
(e) There is no relationship of partnership, agency, employment, franchise
or joint venture between the parties. Neither party has the authority
to bind the other or incur any obligation on its behalf.
<PAGE>
FullNet Communications, Inc.
September 17, 1999
Page 8
(f) This Agreement and the rights hereunder may not be assigned by either
party (except by operation of law) and shall be binding upon and inure
to the benefit of the parties and their respective permitted
successors, assigns and legal representatives.
If you are in agreement with the foregoing, please execute and return one
copy of this letter to National, along with a check or wire transfer made
payable to National Securities Corporation in the amount of $13,500 in
accordance with Sections 3, 4, and 9 above (consisting of the sum of $5,000 due
upon execution of this agreement, the $7,500 initial monthly payment and the
$1,000 deposit due pursuant to paragraph nine above).
Sincerely,
National Securities Corporation
By:/s/ Steven A. Rothstein
--------------------------
Name: Steven A. Rothstein
Title: Chairman
Agreed to and accepted this 17th day of September, 1999.
FullNet Communications, Inc.
By:/s/ Timothy J. Kilkenny
- ---------------------------
Name: Mr. Timothy J. Kilkenny
Title: President and Chief Executive Officer
<PAGE>
FullNet Communications, Inc.
September 17, 1999
Page 9
ANNEX A
INDEMNIFICATION
Recognizing that transactions of the type contemplated in this engagement
sometimes result in litigation and that National Securities Corporation's
("National") role is advisory, FullNet Communications, Inc. (the "Company")
agrees to indemnify and hold harmless National, its affiliates and their
respective officers, directors, employees, agents and controlling persons
(collectively, the "Indemnified Parties"), from and against any losses, claims,
damages and liabilities, joint or several, related to or arising in any manner
out of any transaction, proposal or any other matter (collectively, the
"Matters") contemplated by the engagement of National hereunder, and will
promptly reimburse the Indemnified Parties for all expenses (including
reasonable fees and expenses of legal counsel) as incurred in connection with
the investigation of, preparation for, or defense of any pending or threatened
claim related to or arising in any manner out of any Matter contemplated by the
engagement of National hereunder, or any action or proceeding arising therefrom
(collectively, "Proceedings"), whether or not such Indemnified Party is a formal
party to any such Proceeding. Notwithstanding the foregoing, the Company shall
not be liable in respect of any losses, claims, damages, liabilities or expenses
that a court of competent jurisdiction shall have determined by final judgment
resulted solely from the gross negligence or willful misconduct of an
Indemnified Party. The Company further agrees that it will not, without the
prior written consent of National, settle compromise or consent to the entry of
any judgment in any pending or threatened Proceeding in respect of which
indemnification may be sought hereunder (whether or not National or any
Indemnified Party is an actual or potential party to such Proceeding), unless
such settlement, compromise or consent includes an unconditional release of
National and each other Indemnified Party hereunder from all liability arising
out of such Proceeding.
The Company agrees that if any indemnification or reimbursement sought
pursuant to this letter were for any reason not to be available to any
Indemnified Party or insufficient to hold it harmless as and to the extent
contemplated by this letter, then the Company shall contribute to the amount
paid or payable by such Indemnified Party in respect of losses, claims, damages
and liabilities in such proportion as is appropriate to reflect the relative
benefits to the Company and its stockholders on the one hand, and National on
the other, in connection with the Matters to which such indemnification or
reimbursement relates or, if such allocation is not permitted by applicable law,
not only such relative benefits but also the relative faults of such parties as
well as any other equitable considerations. It is hereby agreed that the
relative benefits to the Company and/or its stockholders and to National with
respect to National's engagement shall be deemed to be in the same proportion as
(i) the total value paid or received or to be paid or received by the Company
and/or its stockholders pursuant to the Matters (whether or not consummated) for
which National is engaged to render services bears to (ii) the fees paid to
National in connection with such engagement. In no event shall the Indemnified
Parties contribute or otherwise be liable for an amount in excess of the
aggregate amount of fees actually received by National pursuant to such
engagement (excluding amounts received by National as reimbursement of the
expenses).
The Company further agrees that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to the
Company for or in connection with National's engagement hereunder except for
losses, claims, damages, liabilities or expenses that a court of competent
jurisdiction shall have determined by final judgment resulted solely from the
gross negligence or willful misconduct of such Indemnified Party. The indemnity,
reimbursement and contribution obligations of the Company shall be in addition
to any liability which the Company may otherwise have and shall be binding upon
and inure to the benefit of any successors, assigns, heirs and personal
representatives of the Company or an Indemnified Party.
The indemnity, reimbursement and contribution provisions set forth herein
shall remain operative and in full force and effect regardless of (i) any
withdrawal, termination or consummation of or failure to initiate or consummate
any Matter referred to herein, (ii) any investigation made by or on behalf of
any party hereto or any person controlling (within the meaning of Section 15 of
the Securities Act of 1933 as amended, or Section 20 of the Securities Exchange
Act of 1934, as amended) any party hereto, (iii) any termination or the
completion or expiration of this letter of National's engagement and (iv)
whether or not National shall, or shall not be called upon to, render any formal
or informal advice in the course of such engagement.
EXHIBIT 10.2
LEASE AGREEMENT
LEASE AGREEMENT ("Lease"), entered into as of this 2nd day of December, 1999, by
and between BOK Plaza Associates, L.L.C., having an address at 330 Garfield
Street, Suite 200, Santa Fe, New Mexico ("Landlord") and Fullnet Communications,
Inc., an Oklahoma Corporation having an address at 201 Robert S. Kerr, Suite
210, Oklahoma City, OK 73102 ("Tenant").
WITNESSETH:
Premises 1. Landlord, for and in consideration of the payments hereinafter
stipulated to be made by Tenant and the covenants and agreements
hereinafter contained to be kept and performed by Tenant, hereby
leases unto Tenant, and Tenant hereby leases from Landlord Suite
210. containing approximately 13,627 rentable square feet on the
2nd floor ("Premises"), as shown on the drawing attached hereto
as Exhibit A and made a part hereof, in the building located at
201 Robert S Kerr Avenue, Oklahoma City, OK 73102 and known as
Bank of Oklahoma Plaza ("Building").
Term 2. The term ("Term") of this Lease shall be for 10 years (unless
sooner terminated as herein provided), commencing on the 1st day
of January, 2000 ("Commencement Date"), and ending on the 31st
day of December, 2009. In the event Landlord is unable to deliver
possession of the Premises at the commencement of the Term,
Landlord shall not be liable for any damage thereby nor shall
this Lease be void or voidable nor shall the expiration date be
extended but Tenant shall not be liable for any rent until the
earlier to occur of either (i) the day Tenant's personnel first
occupy all or any portion of the Premises or (ii) the day on
which Landlord gives to Tenant notice that the Premises are ready
for occupancy by Tenant.
Rent 3. Tenant shall pay as fixed minimum rent for the Premises
without prior demand and without offset or deduction the sum of
One Million Two Hundred Ninety One Thousand One Hundred Fifty
Eight and No/100 Dollars ($1,291,158.00) throughout the term and
further detailed in Article 34. Monthly installments detailed in
Article 34 shall be paid in advance on the first day of each
calendar month of the Term and additional rent as hereinafter set
forth. All rent and additional rent payments shall be made
payable to BOK Plaza Associates, L.L.C., and delivered to
Landlord at c/o Grubb & Ellis/Beffort Brooks Malherbe, 101 N.
Robinson, Suite 700, Oklahoma City, Oklahoma 73102 or such other
address as Landlord may from time to time designate. The first
full month's installment of fixed minimum rent due hereunder
shall be paid by Tenant to Landlord upon the execution of this
Lease. If the tenancy commences on a day other than the first day
of any calendar month, Tenant shall pay the pro rata share of
fixed minimum rent due for the unexpired time in the month in
addition to the fixed minimum rent for the first full month upon
the execution of this Lease. All other payments and charges
hereunder shall be additional rent and subject to collection I n
the same manner as fixed minimum rent.
Security
Deposit 4. Tenant will deposit with Landlord the sum of $5,000.00 as
security for the faithful performance by Tenant of all the terms,
covenants and conditions of this Lease. Said deposit shall be
held by Landlord, without liability for interest, and may be
applied by Landlord, in whole or part, for the payment of any
past due fixed minimum rent, additional rent, or other money.
damage or loss which may be sustained by Landlord because of a
default by Tenant. In the event of any such application by
Landlord, Tenant shall, upon the written demand of Landlord,
promptly remit to Landlord a sufficient amount of cash to restore
the security to the original sum deposited. Said deposit shall be
returned to Tenant after termination of Tenant's occupancy
hereunder and after delivery of the entire possession of the
Premises to Landlord in full accordance with tine terms of this
Lease, provided Tenant has complied with all of the terms,
covenants and conditions of this Lease, including those relating
to the condition in which the Premises shall be left by Tenant.
Landlord may deliver such deposit to any purchaser or other
transferee of Landlord's interest in the Building, and thereupon
Landlord shall be discharged from any further liability with
respect to such deposit.
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Use;
Compliance
with
Laws 5. Tenant shall use and occupy the Premises for office space as a
telecommunications and internet data center and general office
and for no other purposes without the prior written consent of
the Landlord. Tenant shall use the Premises for no unlawful
purpose or act; shall not commit nor permit waste or damage to
the Premises; shall, at its sole cost and expense, comply with
and obey all present and future laws, regulations, or orders of
any governmental authority, agency, department, commission, board
or any other body which shall impose any violation, order or duty
upon Landlord or Tenant with respect to the Premises, or, if
arising out of Tenant's use or manner of use of the Premises,
with respect to the Building; shall comply with and obey all
directions of the Landlord, including Rules and Regulations
attached hereto as Exhibit B and made a part hereof, as changed
or modified from time to time by Landlord on reasonable notice to
Tenant; shall not do or permit anything to be done in or about
the Premises which will in any way obstruct or interfere with the
rights of other tenants or occupants of the Building or injure or
annoy them; shall not place a load on any portion of the floor of
the Premises in excess of the floor load per square foot which it
was designed to carry; and shall not do or permit anything to be
done which will invalidate or increase the rate of insurance upon
tine Building. Landlord shall not be responsible to Tenant for
the nonperformance by any other tenant or occupant of the
Building of any of the Rules and Regulations.
Condition
of Premises 6. (a) Tenant has inspected the Premises and agrees to accept the
same "as is" without any agreements, representations,
understandings or obligations on the part of Landlord to perform
any alterations, repairs or improvements.
(b) Any construction, alterations or improvements to the
Premises shall be performed by Tenant using contractors selected
by Tenant and approved by Landlord and shall be governed in all
respects by the provisions of Section 8(a) (b) and (c) of this
Lease. In any and all events the Commencement Date shall not be
postponed or delayed if the improvements to the Premises are
incomplete on the Commencement Date for any reason whatsoever.
Any delay I the completion of the initial improvements to the
Premises shall not subject Landlord to any liability for any loss
or damage resulting therefrom.
Services 7. (a) As long as Tenant is not in default under any terms or
covenants in this Lease, Landlord will furnish such elevator and
electricity service as in its judgernent is reasonably necessary
for the comfortable use of the Premises during normal business
hours on all generally recognized business days, but no failure
to furnish any service, except as the result of time willful
neglect of Landlord, and no interruption or suspension of any
such service when necessary by reason of governmental
regulations, civil commotion or riot, accident or emergency, or
for repairs. alterations or improvements considered desirable or
necessary by Landlord, shall be construed as an eviction of
Tenant or an abatement or diminution of rent or render Landlord
liable for damages either to person, business or property
suffered by Tenant, its employees, licensees, or invitees by
reason of any such failure, or release Tenant from any of its
obligations under this Lease. Tenant shall be responsible for
providing its own janitorial services to the Premises.
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(b) Tenant shall not install nor connect any device,
including, without limitation, air conditioning equipment.
electric driven motor or any electrical, gas or water appliance,
machine or equipment other than customary office equipment,
without Landlord's prior written consent; such consent shall not
relieve Tenant of its obligation to restore the Premises to the
condition existing prior to the installation of said device,
including the removal of any or all ducts, wiring, piping or
similar apparatus and the repair and replacement of all damage
caused by such removal. Landlord may, at its option, retain all
such apparatus excluding any supplemental air conditioning system
and generator installed by Tenant, and require the delivery of
time Premises in the condition as changed as the result of the
installation of such apparatus. (c) Landlord shall, at Tenant's
sole cost and expense, install sub-meters to measure Tenant's
utility consumption in the Premises (including but not limited to
electricity, gas and water) and to charge the Tenant as
additional rent (or such utility consumption at the then
applicable rate for the sub-metered utilities plus five percent
(5%) for administrative expenses promptly upon demand therefor.
In the event no such rate is promulgated, then Landlord shall
bill Tenant and Tenant shall pay Landlord for Tenant's utility
consumption at the same rates and frequency that Tenant would be
obligated to pay the local utility company furnishing the
applicable utility service if it were metered directly, and all
such sums shall be collectible as additional tent payable
hereunder.
Alterations;
Mechanics'
Liens 8. (a) Tenant shall not make any changes, alterations or
additions in or to the Premises of any nature ("Alterations")
without Landlord's prior written consent. In the event any
Alterations are made upon written request by Tenant approved by
Landlord, such Alterations shall be made at the sole expense of
Tenant by a contractor approved by Landlord, or if mutually
agreed between Landlord and Tenant, Landlord shall perform such
work at a price of cost plus 20%. Tenant shall not display any
signs or similar placards in or on the Building, the windows of
the Premises or the interior hallways; nor shall any curtain or
other window treatment be hung or installed at the Premises
without Landlord's prior written consent. Tenant shall reimburse
Landlord promptly upon demand for any expenses incurred by
Landlord in connection with its review of Tenant's request for
Landlord's consent.
(b) Any Alterations made by Tenant, excepting only furniture
and trade fixtures, shall at Landlord's option remain on the
Premises as the property of the Landlord without compensation to
Tenant, or shall be removed therefrom and the Premises restored
to their original condition at cost to Tenant, at the expiration
or sooner termination of this Lease. The Tenant shall, at its own
expense. repair any damage caused by the removal of furniture and
trade fixtures and restore the Premises to their original
condition at its own expense. The terms of this Article 8 shall
survive the termination or expiration of this Lease.
(c) Landlord shall not be liable for any labor or materials
furnished or to be furnished to Tenant on credit, and no
mechanic's or other lien for any such labor or materials shall
attach to or affect the reversion or other estate or interest of
Landlord in and to the Premises. Tenant shall indemnify and save
Landlord and/or its agents harmless from and against any
liability, damages. claims or costs arising from the imposition
of any such lien Tenant shall obtain and deliver to Landlord,
prior to the commencement of any work performed at the Premises,
written and unconditional waivers of mechanics liens upon the
Premises and Building for all work labor and services to be
performed and materials to be furnished in connection with such
work, signed by all contractors, subcontractors. materialmen and
laborers to become involved in such work. Notwithstanding the
foregoing, any mechanic's lien filed against the Premises or the
Building for work claimed to have been done for or materials
claimed to have been furnished to Tenant shall be discharged by
Tenant at its expense within 15 days after such filing, by
payment or filing of the bond required by law. Failure to comply
with these provisions will constitute a material default by
Tenant under this Lease, entitling Landlord to exercise any or
all of the remedies provided in this Lease in the event of
Tenant's default.
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Repair 9. (a) Landlord shall maintain the exterior and structure of the
Building in a manner compatible with good quality office space as
deemed necessary by Landlord. Tenant shall, at Tenant's sole cost
and expense, promptly make all repairs and replacements as and
when needed to keep the Premises, the fixtures and appurtenances
therein and every part thereof (including, without limitation,
the window treatment contained therein) in good working order and
condition. All damage or injury to the Premises or any part of
the Building, its fixtures, equipment, and appurtenances, caused
by or resulting from the actions, omissions or negligence of
Tenant, its servants, agents, contractors, employees, visitors or
licensees, shall be repaired promptly at Tenant's sole cost and
expense to Landlord's satisfaction. All repairs and replacements
made by or on behalf of Tenant shall be at least equal in quality
to the original work or installation.
(b) If Tenant fails to make any repairs it is required to
make in accordance with the terms of this Lease, the same may be
made by Landlord after 5 days' notice to Tenant (except in the
event of emergency, in which case no notice shall be required) at
the expense of Tenant and such expense shall be collectible as
additional rent and shall be paid by Tenant within 10 days after
rendition of a bill thereof. No failure of Landlord to make
repairs required to be made by it hereunder, except as a result
of willful neglect, shall be construed as an eviction of Tenant
or entitle Tenant to an abatement or diminution of rent or render
Landlord liable for damages either to person, business or
property suffered by Tenant, its servants, agents, contractors,
employees, visitors or licensees by reason of such failure, or
release Tenant from any of its obligations under this Lease.
Landlord's
Lien 10. Intentionally omitted.
Assignment
and
Subletting 11. (a) Tenant shall not (i) transfer or assign this Lease or any
interest hereunder, nor permit any assignment hereof by operation
of law, (ii) sublet the Premises or any part thereof nor (iii)
permit the use of the Premises by desk tenants or any parties
other than the Tenant or its agents, without in each case first
obtaining the written consent of Landlord which consent shall not
be unreasonably withheld. Should Tenant wish to obtain Landlord's
consent to an assignment or subletting, it shall make such
request in written form detailing the proposed sub-rent, term,
sub-tenant or assignee, compensation to be received by Tenant,
name and financial data of proposed sub-tenant or assignee and
such other information as Landlord may request. Landlord may, in
its sole discretion, either (i) give its approval (ii) not give
its approval, or (iii) cancel and terminate this Lease, or if
proposed subletting or assignment is for less than all the
Premises, cancel and terminate this Lease with respect to such
portion (with the rent and all other charges payable hereunder
equitably apportioned). Tenant shall not pledge or mortgage its
leasehold interest or any part thereof and any such pledge or
mortgage shall, at Landlord's option, render this Lease void.
(b) For purposes of this Article 11, (i) the merger, transfer
of a majority of the issued and outstanding capital stock or any
corporate tenant or subtenant or transfer of a major partnership
interest of any tenant or subtenant that is a partnership,
however accomplished, whether in a single transaction or in a
series of related or unrelated transactions, shall be deemed an
assignment of this Lease, or of such sublease, as the case may
be, (ii) a takeover, management or succession agreement shall be
deemed a transfer of this Lease and (iii) a modification,
amendment or extension without Landlord's prior written consent
of an assignment or a sublease previously consented to by
Landlord shall be deemed a new assignment or sublease.
(c) Landland may assign this Lease or any part thereof or
right thereunder. Upon such assignment, Landlord shall have no
further obligations with respect hereto and Tenant shall look
solely to such assignee for the performance of Landlord's
obligations.
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Property
Loss;
Liability 12. Landlord or its agents shall not be liable for any injury,
loss or damage to persons or property resulting from any cause
whatsoever unless specifically and solely caused by the gross
negligence of Landlord. Landlord or its agents shall not be
liable for any such injury, loss, or damage caused by other
tenants or persons in or about the Building. Tenant shall
maintain sufficient "contents" insurance against theft or
casually to its property for all risks including difference in
conditions and including. without limitation, water damage.
Indemni-
ficaton 13. (a.) Tenant shall indemnify, defend and hold harmless
Landlord and its officers, directors, partners, employees,
attorneys and agents (collectively, the "Tenant Indemnities")
from and against any and all liability, claims, demands, causes
of action, judgments, costs. expenses. and all losses and damages
for bodily injury, death and property damage arising from any
activity in the Premises even if resulting from the negligent act
or omission of any of the Tenant indemnities, and from all costs,
attorney fees and disbursements, and liabilities incurred in the
defense of any such claim. Upon notice from Landlord. Tenant
shall defend any such claim, demand, cause of action or suit at
Tenant's expenses by counsel satisfactory to Landlord in its
reasonable discretion. The provisions of this subsection (a)
shall survive the expiration or earlier termination of this
Lease.
` (b) Landlord shall indemnify, defend and hold harmless Tenant
and its officers, directors, partners, employees, attorneys and
agents (collectively, the "Landlord Indemnities") from and
against any and all liability, claims, demands, causes of action,
judgments, costs, expenses, and all losses and damages for bodily
injury, death and property damage arising front any activity in
or about the Building (other than the Premises) even if resulting
from the negligent act or omission of any of Landlord Indemnities
and from all costs, attorney fees and disbursements, and
liabilities incurred in the defense of any such claim. Upon
notice from Tenant, Landlord shall defend any such claim, demand,
cause of action or suit at Landlord's expense by counsel
satisfactory to Tenant in its reasonable discretion. The
provisions of this subsection (b) shall survive the expiration or
earlier termination of this Lease.
Insurance 14. Tenant shall, in addition to the insurance required pursuant
to Article 12 hereof, at its sole cost and expense, carry
comprehensive public liability insurance with respect to the
Premises (and the adjacent common areas) and the operations
conducted therein against any liability for bodily injury, death
and property damage, including blanket contractual liability,
with a combined single limit of $1,000,000. All policies of
insurance required hereunder shall name Landlord as additional
insured as its interests may appear and as Loss payee. Tenant
shall deliver to Landlord, within 30 days after the date hereof,
certificates evidencing such insurance and shall cause all such
policies to provide for 30 days' prior written notice to Landlord
of any cancellation, reduction in amount or material change in
coverage. Tenant and Landlord agree that insurance carried by
either of them against loss or damage by fire or other casualty
shall contain a clause whereby the insurer waives its rights of
subrogation against the other party. Upon request each party
agrees to furnish evidence of such waiver to the other party.
Holding
Over 15. If Tenant should remain in possession of the Premises alter
the expiration of the Term without the execution by Landlord and
Tenant of a new lease, Tenant shall be deemed to be occupying the
Premises as a tenant-at-sufferance, subject to all the covenants
and obligations of this Lease and at a monthly rental of twice
the per monthly fixed minimum rent and additional rent paid by
Tenant immediately prior to the expiration hereof, computed on
the basis of a 30 day month.
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Estoppel
Certificate 16. Tenant shall, from time to time and whenever Landlord so
requests, within 10 days after Landlord's request, sign and
deliver to Landlord a certificate stating: whether this Lease is
in full force and effect; whether any amendments or modifications
exist; whether there are any defaults hereunder; the then current
rent; and such other information as may be reasonably requested.
Rights
Reserved to
Landlord 17. Landlord reserves and shall at all times have the right to
reenter the Premises in any emergency and to inspect the same,
and to alter, improve, remodel or repair the Premises and any
portion of the Building including, without limitation,
installation of pipes, conduits or new building mechanical
systems, without abatement of fixed minimum or additional rent
and without incurring any liability to Tenant herefor. Tenant
hereby waives as against Landlord any claim for damages for any
injury or inconvenience to or interference with Tenant's
business, any loss of occupancy or quiet enjoyment of the
Premises and any other loss occasioned thereby. Throughout the
Term, Landlord shall have the right to enter the Premises at
reasonable hours for the purpose of showing the same to
prospective purchasers or mortgagees of the Building, and during
the last 6 months of the Term for the purposes of showing the
premises to prospective tenants, and may, during said 6 month
period, place upon the Premises "To Let" and "For Sale" notices.
Default
Damages 18. (a) Each of the following acts or omissions of Tenant or
occurrences shall constitute an "Event of Default": (i) failure
or refusal by Tenant to pay fixed minimum rent, additional rent
or other payments hereunder when due; (ii) failure to perform or
observe any other covenant or condition of this Lease by Tenant
to be performed or observed upon the expiration of a period of 10
days following written notice to Tenant of such failure; (iii)
abandonment or vacating of the Premises or any significant
portion thereof; and (iv) the filing or execution or occurrence
of: a petition in bankruptcy or other insolvency proceeding by or
against Tenant; a petition or answer seeking relief under any
provision of the Bankruptcy Act or like law; an assignment for
the benefit of creditors or composition; a petition or other
proceeding by or against Tenant for the appointment of a trustee,
receiver or liquidator of Tenant or any of Tenant's property; or
a proceeding by an governmental authority for the dissolution or
liquidation of Tenant.
(b) Upon or at any time after the occurrence of any Event
of Default, Landlord may, at Landlord's option, upon five days
written notice, in addition to any other remedy or right given
hereunder or by law or equity, do any one of more of the
following: (i) terminate this Lease, in which event Tenant shall
immediately surrender possession of the Premises to Landlord;
(ii) enter upon and take possession of the Premises and expel or
remove Tenant and any other occupant therefrom, with or without
having terminated the Lease; and (iii) alter locks and other
security devices at the Premises.
(c) The exercise by Landlord of any one or more remedies
hereunder granted or otherwise available shall not be deemed to
be an acceptance or surrender of the Premises by Tenant, whether
by agreement or by operation of law, it being understood that
such surrender can effected only by the written agreement of
Landlord and Tenant. The termination by Landlord of this Lease
shall in no way exhaust any other rights hereunder or under law
or in equity. No alienation of security devices and no removal or
other exercise of dominion by Landlord over the property of
Tenant or others at the Premises shall constitute a conversion.
All claims for damages by reason of such reentry repossession or
alteration of locks or other security devices are hereby waived,
as are all claims for damages by reason of any distress warrant,
forcible detainer proceedings, sequestration proceedings or other
legal process. Tenant agrees that any reentry by Landlord may be
pursuant to judgement obtained in forcible detainer proceedings
or other legal proceedings or without the necessity for any legal
proceedings, as Landlord may elect, and Landlord shall not be
liable in trespass or otherwise. If Tenant shall move from the
Premises at any time prior to the termination of this Lease~
Landlord shall have the right to enter upon the Premises for the
purpose of decorating the same or making alterations or changes
therein, without such entry in any manner affecting the
obligations of the Tenant hereunder.
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(d) If Landlord elects to terminate the Lease or if Landlord
shall reenter the Premises without having terminated the Lease,
then notwithstanding such termination or reentry, Tenant shall be
liable for and shall pay to Landlord, the sum of all fixed
minimum rents, additional rents and other indebtedness accrued to
the date of such termination or reentry, as the case may be, and
Landlord may declare the fixed minimum rent and additional rent
for the balance of the Term immediately due and payable.
(e) All items of additional rent set forth in Subparagraph
18(d) above relating to a period after termination or reentry
shall be conclusively presumed to be the highest average monthly
additional rent paid by Tenant during the Term, except that
additional rent on account of Taxes and Expenses (as hereinafter
defined) shall be conclusively presumed to increase at the
average of the rates of increase thereof during the period prior
to such termination. Nothing in this Article 18 shall be
construed to limit or preclude recovery by Landlord against
Tenant for any sums or damages to which, in addition to the
damages particularly provided above, Landlord may lawfully be
entitled by reason of any default hereunder on the part of
Tenant.
(f) In case of any Event of Default, Tenant shall also be
liable for and shall pay to Landlord, in addition to any sum
required to be paid above, all expenses as Landlord may incur in
connection with such Event of Default of re-letting, including,
without limitation: advertising costs; brokers' fees; the costs
of removing and storing Tenant's or other occupant's property;
the costs of repairing, altering, remodeling or otherwise putting
the Premises into condition acceptable to a new tenant or
tenants; and all reasonable expenses incurred by Landlord in
enforcing Landlord's remedies, including attorneys' fees. For all
purposes of this Lease, and in addition to any other charge
herein contained, past due fixed minimum and additional rent and
other past due payments shall bear interest from the date due, at
twelve percent per annum until paid.
(g) In the event of termination or repossession of the
Premises for an Event of Default, Landlord shall not have any
obligation to re-let or attempt to re-let the Premises, or any
portion thereof, or to collect rental after re-letting; and in
the event of re-letting Landlord may re-let the whole or any
portion of the Premises for any period, to any tenant, at any
rent, and for any use and purpose.
(h) If Tenant should fail to make any payment or cure any
default hereunder within the time herein permitted, Landlord,
without being under any obligation to do so and without thereby
waiving such default, may make such payment and/or remedy such
other default for the account of Tenant (and enter the Premises
for such purpose), and thereupon Tenant shall pay to Landlord as
additional rent, upon demand, all costs, expenses and
disbursements (including attorney's fees) incurred by Landlord in
taking such remedial action.
(i) Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws if
Tenant is evicted or dispossessed for any cause or if Landlord
obtains possession of the Premises by reason of the violation by
Tenant of any of the covenants and conditions of this Lease or
otherwise. Tenant hereby further waives and renounces any and all
homestead exemption rights it may now or hereafter have.
(j) In the event of any default by Landlord, Tenant's
exclusive remedy shall be an action for damages (Tenant hereby
waiving the benefit of any laws granting it a lien upon the
property of Landlord and/or upon rent due Landlord), but prior to
any such action Tenant will give Landlord written notice
specifying such default with particularity, and Landlord shall
thereupon have thirty (30) days in which to cure any such
default. Unless and until Landlord fails to commence to cure a
default after such notice, Tenant shall not have any remedy or
cause of action by reason thereof. No obligation of Landlord
hereunder will be construed as a condition, and all Landlord's
obligations will be binding upon Landlord only during the period
of its possession of the Building and not thereafter.
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Fire or
Other
Casualty 19. If at any time during the Term, the Premises or any portion
thereof or any portion of the Building should be damaged or
destroyed by fire or other casualty, then Tenant shall have no
right to terminate this Lease unless Tenant's operations center
(as shown on Exhibit `A') is destroyed and the Landlord is not
able to provide alternative Premises in the Building within
thirty days, then Tenant shall have the right to terminate this
Lease. In the case of such damage or destruction, Landlord shall
have the election to terminate this Lease or to repair and
reconstruct the Premises if Tenant does not terminate this Lease
as provided above and Building to substantially the condition in
which they existed immediately prior to such damage and
destruction. In any of the aforesaid circumstances, unless such
fire or damage shall have resulted form the negligence, acts or
omissions of Tenant or its agents, contractors, employees,
visitors or licensees, fixed minimum and additional rent shall
abate proportionately during the period to the extent that the
Premises are unfit for use by Tenant in the ordinary course of
its business; provided, however, that should Tenant reoccupy a
portion of the Premises prior to the date the whole Premises are
made tenantable, fixed minimum and additional rent allocable to
such portion shall be payable by Tenant from the date of such
reoccupancy. If Landlord has elected to repair and restore the
Premises, this Lease shall continue in full force and effect and
such repairs will be made within a reasonable time thereafter,
subject to delays arising from shortage of labor or materials and
Acts of God, war or other conditions beyond Landlord's reasonable
control. In the event that this Lease is terminated as herein
permitted, Landlord shall refund to Tenant the prepaid rent, if
any (unaccrued as of the date of damage or destruction), less any
sum then owing Landlord by Tenant. If Landlord has elected to
repair and reconstruct the Premises, then the Lease Term shall be
extended for a period of time equal to the period of such repair
or reconstruction. No damages, compensation or claim shall be
payable by Landlord for inconvenience, loss of business or
property or annoyance arising from any termination.
Condemnation 20. If the entire Premises shall be lawfully condemned or taken
in any manner for any public or quasi-public use, this Lease
shall terminate as of the date of vesting of title. If only a
part of the Premises shall be so condemned or taken, then,
effective as of the date of the vesting of title, the fixed
minimum rent and additional rent shall be abated proportionately
according to the reduction in the area of the Premises resulting
from such condemnation or taking. If only a part of the Building
shall be so condemned or taken, then Landlord (whether or not the
premises be affected) may, at Landlord's option, terminate this
Lease as of the date of such vesting of title. In the event of
termination of this Lease as hereinbefore provided, this Lease
and the Term and estate hereby granted, shall expire as of the
date of such termination with the same effect as if that were the
expiration date originally set forth herein, and the fixed
minimum rent and additional rent payable hereunder shall be
apportioned as of such date. In the event of any condemnation or
taking of all or a part of the Building, Landlord shall be
entitled to receive the entire award in the condemnation
proceeding, including any award made for the value of the estate
vested by this Lease in Tenant. Tenant hereby expressly assigns
to Landlord any and all right, title and interest of Tenant now
or hereafter arising in or to any such award or any part thereof,
and agrees that it shall not be entitled to receive any part of
such award.
Surrender
of
Premises 21. At the end of the Term or any renewal thereof or other sooner
termination of this Lease, Tenant shall peaceably deliver up to
Landlord possession of the Premises in broom clean condition,
together with all improvements or additions upon or belonging to
the same, by whomsoever made, in the same condition as received,
or first installed, ordinary wear and tear excepted. Upon the
termination of this Lease, Tenant shall indemnify the Landlord
against any loss or liability resulting from delay by Tenant in
so surrendering the Premises, including, without limitation, any
claims made by any succeeding tenant founded on such delay. The
terms of this Article shall survive the termination or expiration
of this Lease.
8
<PAGE>
Waiver 22. The failure by Landlord to enforce any term, covenant or
condition herein contained shall not be deemed to be a waiver of
such term. covenant, or condition or any subsequent breach of the
same or any other term, covenant or condition herein contained.
The acceptance of any payment hereunder by Landlord shall not be
deemed to be a waiver of any preceding breach of Tenant of any
term, covenant or condition of this Lease, other than the failure
of Tenant to make the particular payment so accepted, regardless
of Landlord's knowledge of such preceding breach at the time of
acceptance of such payment. The delivery of keys to Landlord, its
employees or agents shall not of itself operate as a termination
of this Lease or surrender of the Premises. No endorsement or
statement on any check or any letter accompanying any check or
payment shall be deemed an accord and satisfaction; and Landlord
may accept any such check or payment without prejudice to
Landlord's right to recover the balance of such payment or pursue
any other remedy provided in this Lease or otherwise.
Moving
Tenant 23. Intentionally omitted.
Storage 24. If Tenant shall fail to remove all property from the Premises
upon termination of this Lease which it is required to remove
pursuant to the terms of this Lease, for any cause whatsoever,
Landlord may at its option remove the same in any manner that
Landlord shall choose and store said property without liability
to Landlord for loss thereof or damage thereto, and Tenant agrees
to pay Landlord on demand any and all expenses incurred in such
removal, including court costs, attorneys' fees and storage
charges on said property for any length of time the same shall be
in Landlords possession, or Landlord may at its option without
notice sell said property or any pan thereof at private sale and
without legal process for such price as Landlord may obtain, and
apply the proceeds of such sale upon any amounts due under this
Lease from Tenant to Landlord and upon the expense incident to
the removal and sale of said property. The terms of this Article
24 shall survive the termination or expiration of this Lease.
Subordination 25. This Lease is subject and subordinate in all ground leases
and/or mortgages which may now or hereafter affect the Building
or any portion thereof, and to all renewals, refinancings,
modifications, consolidations, replacements and extensions of any
such ground leases and/or mortgages. This clause shall be
self-operative and no further instrument of subordination shall
be required. Tenant shall promptly execute any certificate that
Landlord may request in confirmation of such subordination, and
Tenant hereby constitutes and appoints Landlord to be Tenant's
attorney-in-fact, irrevocably and coupled with an interest, to
execute and deliver any such instrument for an on behalf of
Tenant.
Quiet
Enjoyment 26. Landlord agrees that Tenant, upon paying the rent and
complying with the terms, covenants and conditions contained
herein, shall and may peaceably and quietly have, hold and enjoy
the Premises for the Term.
9
<PAGE>
Late
Charge 27. Tenant hereby acknowledges that late payment by Tenant to
Landlord of rent or other sums due hereunder will cause Landlord
to incur costs not contemplated by this Lease, the exact amount
of which will be extremely difficult to ascertain. Such Costs
include, but are not limited to processing and accounting charges
and late charges which may be imposed upon Landlord by terms of
any mortgage or deed of trust covering the Premises. Accordingly,
if any installment of rent or any other sum due from Tenant shall
not be received by Landlord or Landlord's designee within five
(5) days of the date such amount is due, then the Tenant shall
pay to Landlord a late charge equal to the maximum amount
permitted by law (and in the absence of any governing law, ten
(10%) percent of such overdue amount), plus any attorney's fees
incurred by Landlord by any reason of Tenant's failure to pay
rent and/or other charges when due hereunder. The parties hereby
agree that such late charges represent a fair and reasonable
estimate of the cost that Landlord will incur by reason of late
payment by Tenant. Acceptance of such late charges by Landlord
shall in no event constitute a waiver of Tenant's default with
respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies granted
hereunder.
Adjustments 28. (a) Taxes:
(i) Tenant shall pay to Landlord as additional
rent, its pro rata share of the excess of (x) real estate, ad
valorem and property taxes and special assessments ("Taxes")
levied upon all or part of the Building and/or the land of which
the Building is a part ("Land") for each tax year during the Term
("Tax Year") over (y) Taxes for the Tax Year during which the
Term commences. Tenant's pro rata share shall be 5.74%. Said
payment shall be made, without demand, in equal monthly
installments on the first day of each month in accordance with
invoices that Landlord shall furnish from time to time. If there
shall be any change in Taxes, Landlord shall furnish a revised
invoice to Tenant, and Tenant's tax payment shall be adjusted
within 10 days thereafter in the same manner as provided in
Subparagraph 28(b)(ii) below.
(ii) Tenant shall pay before delinquency any and
all taxes and assessments, and license, sales, business,
occupancy or other taxes, fees or charges levied, assessed or
imposed upon it or its operations at the Premises.
(b) Operating Expenses:
(i) For purposes hereof the following definitions
shall apply: "Expense Base Year" shall be the calendar year prior
to the calendar year in which the Term commences. "Operating
Year" shall be each calendar year which includes any part of the
Term. "Initial Operating Year" shall be the calendar year in
which the Term commences. "Succeeding Operating Year" shall be
each Operating Year subsequent to the Initial Operating Year.
"Tenant's Expense Share" shall be 5.74%. "Expenses" shall mean
the total of all the costs and expenses (and taxes thereon, if
any) incurred by Landlord with respect to the repair, operation
and maintenance of the Land and/or Building, and the services
provided to Tenants of the Building including, without
limitation, the costs and expenses of: water; payroll and
benefits; consultants and specialists; security; advertising;
office and administration; equipment, materials and supplies;
management fees; insurance; contracts to third parties to provide
services; and capital expenditures designed to reduce Expenses
for the Building amortized over their useful lives. In
determination of Expenses for any year including but not limited
to the Initial Operating Year, Succeeding Operating Year, or
Expense Base Year. Expenses shall exclude cleaning, electricity,
gas, air-conditioning, ventilation and heating.
(ii) If the expenses for any Operating Year exceed
the Expenses in the Expense Base Year, Tenant shall pay to
Landlord as additional rent for such Operating Year an amount
equal to Tenant's Expense Share of said excess ("Tenant's Expense
Payment") as follows:
(A) After the expiration of the Initial Operating
Year, Landlord shall furnish to Tenant an
Escalation Statement setting forth Tenant's
Expense Payment for the Initial Operating Year.
Tenant shall pay to Landlord, within 10 days after
Landlord submits such Escalation Statement,
Tenant's Expense Payment set forth therein.
10
<PAGE>
(B) Landlord shall furnish to Tenant an Escalation
Statement setting forth Landlord's estimate of
Tenant's Expense Payment for each Succeeding
Operating Year. Tenant shall pay to Landlord on
the first day of each month during such Succeeding
Operating Year, without demand, an amount equal to
one-twelfth of Landlord's estimate of Tenant's
Expense Payment for such Succeeding Operating
Year.
(C) After the expiration of each Succeeding
Operating Year, Landlord may submit to Tenant a
revised Escalation Statement setting forth the
Expenses for such Succeeding Operating Year and
the balance of Tenant's Expense Payment, if any,
due to Landlord from Tenant for such Succeeding
Operating Year. If such Escalation Statement shall
show that the sums paid by Tenant hereunder
exceeded Tenant's Expense Payment for such
Succeeding Operating Year, Tenant shall be
entitled to a credit in the amount of such excess
against its next succeeding payment(s) of fixed
minimum rent hereunder. If such Escalation
Statement shall show that the sums so paid by
Tenant were less than Tenant's Expense Payment for
such Succeeding Operating Year, Tenant shall pay
the amount of such deficiency to the Landlord
within 10 days after being furnished with such
Escalation Statement.
(D) Landlord may at any time and from time to time
furnish to Tenant a revised estimate of Tenant's
Expense Payment for a particular Operating Year,
and Tenant's Expense Payment for such Operating
Year shall be adjusted and paid or credited, as
applicable, in the same manner as provided in
Subparagraph (C) above.
(c) If the Term shall commence on a day other than
the first day of a Tax Year or an Operating Year or shall
expire or terminate on a day other than the Last day of a
Tax Year or an Operating Year, then Tenant's payments
under this Article 28 shall be equitably adjusted based on
the portion of such Tax Year or Operating Year falling
within the Term.
(d) In no event shall the fixed minimum rent ever
be reduced by operation of this Article. The rights and
obligations of Landlord and Tenant under the provisions of
this Article shall survive the termination of this Lease,
and payments shall be made pursuant to this Article
notwithstanding the fact that an invoice for Taxes or an
Escalation Statement is furnished to Tenant after the
expiration or other termination of the Term.
(e) Landlord's failure to render an invoice for
taxes air tin Escalation Statement with respect to any Tax
Year or Operating Year shall not prejudice Landlord's
right to thereafter render an invoice for Taxes or
Escalation Statement with respect thereto or with respect
to any subsequent Tax Year or Operating Year.
Brokerage 29. Tenant represents and warrants that it has had no dealings or
negotiations with any broker or agent other than Grubb &
Ellis|Beffort Brooks Malherbe in connection with the consummation
of this Lease, and Tenant agrees to pay, hold harmless and
indemnify Landlord from and against any and all costs, expenses
(including attorneys' fees and court costs), loss and liability
for any compensation, commissions or charges claimed by any
broker or agent with respect to this Lease or the negotiations
thereof if such claim or claims by any such broker or agents are
based in whole or in part on dealings with Tenant or its
representatives.
Miscellaneous 30. Landlord and Tenant covenant with each other that:
(a) All rights and remedies of Landlord under this Lease shall be
cumulative, and none shall exclude any other rights and remedies
allowed by law.
11
<PAGE>
(b) The word "Landlord" and "Tenant" wherever used herein shall
be construed to mean Landlords and Tenants in all cases where
there is more than one Landlord or Tenant, and the necessary
grammatical changes required to make the provisions hereof apply
either to corporations or individuals, men or women, shall in all
cases be assumed as though in each case fully expressed. The term
"Landlord" shall mean only the owner, for the time being, of the
Building, and in the event of the transfer by such owner of its
interest in the Building, such owner shall thereupon be released
and discharged from all covenants and obligations of the Landlord
thereafter accruing, but such covenants and obligations shall be
binding during the Term upon each new owner for the duration of
such owner's ownership.
(c) Tenant will pay all attorneys' fees and expenses Landlord
incurs in enforcing any obligation of Tenant under this Lease,
whether in any litigation or negotiation.
(d) Any charge against Tenant by Landlord for supplies, services
or work done on the Premises shall be considered as rent due and
shall be included in any lien for rent due and unpaid.
(e) All covenants, conditions, agreements and undertakings in
this Lease shall extend to, and be binding on, the respective
heirs, executors, administrators, successors and assigns or the
respective parties hereto as if they were in every case named.
(f) This Lease embodies the entire agreement of the parties
hereto and may not be altered, changed or amended except by an
instrument in writing executed by both parties.
(g) This Lease shall be interpreted in accordance with the laws
of the State in which the Premises are located.
(h) If any clause or provision hereof should be determined to be
illegal, invalid or unenforceable under present or future laws
effective during the Term or any renewal term hereof, then (i) it
is the express intention of the parties hereto that in lieu of
each clause or provision of this Lease which may be determined to
be illegal, invalid or unenforceable, there may be added as a
part of this Lease a clause or provision as similar in terms to
such illegal, invalid or unenforceable clause or provision as may
be legal, valid and enforceable and (ii) the remainder of this
Lease shall not be affected thereby and each provision of this
Lease shall be valid and enforced to the fullest extent permitted
by law.
(i) Landlord has not made any statement, promise or agreement
whatever, verbally or in writing, in conflict with the terms of
this Lease or than in any way modifies, varies, alters, enlarges
or invalidates any of its provisions and no obligation of
Landlord shall be implied in addition to the obligations herein
stated.
(j) Neither this Lease nor a memorandum thereof may be recorded,
and any such recordation shall render the Lease voidable by
Landlord.
(k) In no event shall any payment required to be made by Tenant
ever be reduced by a recalculation of the square footage of the
Premises.
(l) All obligations of Tenant in this Lease shall be construed as
covenants and agreements by Tenant to perform such obligations.
(m) Tenant shall give to Landlord or its agent prompt written
notice of any accident or damage to, or defects in the water
pipes, gas pipes, air conditioning apparatus or other mechanical
system in or around the Premises.
(n) Periodical replacement of fluorescent tubes and bulbs will be
provided by Landlord, but the cost of such replacement tubes will
be borne by Tenant promptly upon demand thereof.
(o) All rights and remedies accruing to Landlord under this Lease
shall survive the termination or expiration of this Lease.
(p) Landlord may, at its option, have the Premises remeasured
(based on BOMA rentable area) and if such remeasurement indicates
a larger area than as shown in Paragraph 1 hereof, Tenant shall,
at Landlord's request, reexecute this Lease with the revised
measurement shown in Paragraph 1; provided, however, that nothing
herein contained shall increase Tenant's rental obligations or in
any other way modify the Lease.
12
<PAGE>
Notices 31. All notices, demands and consents which may or are required
to be given by either party to the other hereunder shall be in
writing and shall be sent by United States certified or
registered mail, return receipt requested, postage prepaid,
addressed to Tenant at the Premises, or if the Landlord to the
Building Office in the Building. Such addresses may be changed
from time to time by either party by giving written notice as
provided above. Notices shall be deemed given two days after
being deposited in the United States certified mail, return
receipt requested, postage prepaid to the respective address
given above. At Landlord's option, Landlord may deliver any
notice or document required or permitted to be delivered by
Landlord to Tenant hereunder, by personal delivery to Tenant. In
such event, said notice shall be deemed to be delivered on the
date of personal delivery to Tenant. An additional notice shall
be given by each party to the other party at the following
address:
IF TO LANDLORD: BOK Plaza Associates, L.L.C.
c/o BGK Equities, Inc.
330 Garfield Street, Suite 200
Santa Fe, New Mexico 87501
with a copy to:
Attn: Property Manager
Grubb & Ellis|Beffort Brooks Malherbe
101 N. Robinson, Suite 700
Oklahoma City, OK 73102
IF TO TENANT: Fullnet Communications, Inc.
201 Robert S. Kerr, Ste. 210
Oklahoma City, OK 73102
with copy to:
Elaine Arnold, Attorney at Law
Speed Professional Building
501 N. Mustang Rd.
Mustang, OK 73064
Landlord's
Liability 32. Tenant agrees that the liability of the Landlord under this
Lease and all matters pertaining to or arising out of the tenancy
and the use and occupancy of the Premises including, but not
limited to, all matters or claims of whatsoever nature arising
out of or caused by the negligence of the Landlord, its agents,
servants or employees, shall be limited to Landlord's interest in
the Building and in no event shall Tenant bring any action or
make any claim against, recover any money judgement from, or seek
to impose any personal liability upon any principal, officer,
shareholder, director, general or limited partner of the Landlord
or any principal for whom Landlord may be acting.
Tenant's Covenants
Regarding Harzardous
Materials 33. (a) Tenant has reviewed and executed the attached Asbestos
Notice Rider, Rider Number 1 to Office Lease.
(b) Compliance with Environmental Laws: Tenant shall at all
times and in all respects comply with all federal, state, and
local laws, ordinances and regulations; ("Hazardous Materials
Law") relating to industrial hygiene, environmental protection or
the use, analysis, generation, manufacture, storage, presence,
disposal or transportation of any oil, flammable explosives,
asbestos, urea formaldehyde, radioactive materials or waste or
other hazardous toxic, contaminated, or polluting materials,
substances, or waste, including, without limitations, any
"hazardous substances", "hazardous wastes", "hazardous
materials", or "toxic substances" under any such laws, ordinances
or regulations (collectively, "Hazardous Materials").
13
<PAGE>
(c) Hazardous Materials Handling: Tenant shall at its own
expense, procure, maintain in effect and comply with all
conditions of any and all permits, licenses and other
governmental and regulatory approvals required for Tenant's use
of the Premises including, without limitation, discharge of
(appropriately treated) materials or wastes into or through any
sanitary sewer serving the Premises. Except as discharged into
the sanitary sewer in strict accordance and conformity with all
applicable Hazardous Materials Laws, Tenant shall cause any and
all Hazardous Materials removed from the Premises to be removed
and transported solely by duly licensed haulers to duly licensed
facilities for final disposal of such materials and wastes.
Tenant shall in all respects handle, treat, deal with and manage
any and all Hazardous Materials in, on, under, or about the
Premises in total conformity with all applicable Hazardous
Materials Laws and prudent industry practices regarding
management of such Hazardous Materials. All reporting obligations
imposed by Hazardous Materials Laws are strictly the
responsibility of Tenant. Tenant is "in charge" of Tenant's
"facility" as such terms are used in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980,
as amended by the Superfund Amendment and Reauthorization Act of
1986. Upon expiration or earlier termination of the term of this
Lease, Tenant shall cause all Hazardous Materials to be removed
from the Premises and transported for use, storage, or disposal
in accordance and compliance with all applicable Hazardous
Materials Laws. Tenant shall not take any remedial action in
response to the present of any Hazardous Materials in or about
the Premises or any Building, nor enter into any settlement
agreement, consent decree, or other compromise in respect to any
claims relating to any Hazardous Materials in any way connected
with the Premises or any Building, without first notifying
Landlord of Tenant's intention to do so and affording Landlord
ample opportunity to appear, intervene, or otherwise
appropriately assert and protect Landlord's interest with respect
thereto. In addition, at Landlord's request, Tenant shall remove
any tanks or fixtures which contain, contained or are
contaminated with Hazardous Materials.
(d) Notices: Tenant shall immediately notify Landlord in
writing of: (i) any enforcement, cleanup, removal or other
governmental or regulatory action instituted, completed or
threatened pursuant to any Hazardous Materials Laws; (ii) any
claim made or threatened by any person against Tenant, the
Premises or Building relating to damage, contribution, cost
recovery compensation, loss or injury resulting fro or claimed to
result from any Hazardous Materials; and (iii) any reports made
to any environmental agency arising out of or in connection with
Hazardous Materials in, on, or removed from the Premises or
Building, including any complaints, notices, warnings, reports or
asserted violations in connection therewith. Tenant shall also
supply to Landlord as promptly as possible, and in any event
within five (5) business days after Tenant first receives or
sends the same, with copies of all claims, reports, complaints,
notices, warnings, asserted violations relating in any way to the
Premises, Building or Tenant's use thereof. Tenant shall promptly
deliver to Landlord copies of Hazardous Waste manifests
reflecting the legal and proper disposal of all Hazardous
Materials removed from the Premises.
14
<PAGE>
(e) Tenant shall indemnify, defend (by counsel acceptable
to Landlord) Landlord and each of Landlord's partners, employees,
agents, attorneys, successors and assigns, free and harmless from
and against any and all claims, liabilities, penalties,
forfeitures, losses, or expenses (including attorney's fees) for
death of or injury to any person or damage to any property
whatsoever (including water tables and atmosphere) arising from
or caused in whole or in part, directly or indirectly, by (i) the
presence in, on, under, or about the Premises or Building or
discharge in or from the Premises or Building of any Hazardous
Materials from and after Tenant's occupancy of the Premises, or
Tenant's use, analysis, storage, transportation, disposal,
release, threatened release, discharge, or generation of
Hazardous Materials to, in, on, under, about, or from the
Premises or any closure, remedial action, or other required plans
in connection therewith, and shall survive the expiration or
earlier termination of the term of this Lease. For purposes of
the release and indemnity provision hereof, any acts or omissions
of Tenant, or by employees, agents, assignees, contractors, or
subcontractors of Tenant or others acting for or on behalf of
Tenant (whether or not they are negligent, intentional, willful,
or unlawful), shall be strictly attributable to Tenant.
(f) If at any time it reasonably appears to Landlord that
Tenant is not maintaining sufficient insurance or other means of
financial capacity to enable Tenant to fulfill its obligation to
Landlord hereunder, whether or not then accrued, liquidated,
conditional, or contingent, Tenant shall procure and thereafter
maintain in full force and effect such insurance or other form of
financial assurance, with or from companies or persons and in
forms reasonably acceptable to Landlord, as Landlord may from
time to time reasonably request. Landlord may procure such
insurance if Tenant fails to meet its obligations hereunder and
the cost thereof shall be passed through to Tenant.
(g) Landlord shall have the right to require Tenant, at
Landlord's cost, to undertake and submit to Landlord a periodic
environmental audit from an environmental company approved by
Landlord, which audit shall cover Tenant's compliance with this
Section. Tenant shall promptly comply with all requirements of
such audit and, if Tenant, its employees, agents, assignees,
contractors or subcontractors or others acting for or on behalf
of Tenant, are found to have introduced Hazardous Materials in,
on, under, about or from the Premises, Tenant shall cure all
matters raised therein at Tenant's sole cost, including
reimbursing Landlord for the cost of the audits.
<TABLE>
<CAPTION>
Rent 34. Tenant shall pay as fixed minimum rent for the Premises the
following sums ("Fixed Minimum Rent"):
Lease Year Per Sq. Ft. Annually Monthly
---------- ----------- -------- -------
<S> <C> <C> <C> <C>
1/1/00 - 12/31/00 $2.94 $40,063.38 $3,338.62
1/1/01 - 12/31/01 $5.81 $79,172.87 $6,597.74
1/1/02 - 12/31/02 $9.00 $122,643.00 $10,220.25
1/1/03 - 12/31/03 $9.50 $129,456.50 $10,788.04
1/1/04 - 12/31/04 $10.00 $136,270.00 $11,355.83
1/1/05 - 12/31/05 $10.50 $143,083.50 $11,923.63
1/1/06 - 12/31/06 $11.00 $149,897.00 $12,491.42
1/1/07 - 12/31/07 $11.50 $156,710.50 $13,059.21
1/1/08 - 12/31/08 $12.00 $163,524.00 $13,627.00
1/1/09 - 12/31/09 $12.50 $170,337.50 $14,194.79
</TABLE>
Option to
Renew 35. Provided Tenant has not committed an Event of Default under
this Lease, Tenant shall have the option, exercisable only upon
180 days prior written notice delivered to Landlord by certified
or registered mail, return receipt requested, postage prepaid, at
the address provided in Article 31, to renew this Lease for two
five (5) year periods with all the terms and conditions to remain
the same except that the Fixed Minimum Rent shall be the greater
of: (i) current market rent charged for comparable space in the
Building at the time of renewal, or (ii) the Fixed Minimum Rent
charged to Tenant during the last year of the initial Lease Term.
The Landlord shall not be required to provide any improvements to
the Premises should Tenant exercise its Option to Renew described
above unless agreed to as part of the proposed renewal.
Generator 36. Tenant will have the right to install a Generator in the
Building under the following terms and conditions:
(a) The Generator will be installed on the low roof of
the Building as noted on the attached Exhibit "A"
(the "Generator Space"). Wherever the term "Premises"
is used throughout the Lease, it will include the
Generator Space.
15
<PAGE>
(b) The Generator shall be used only for backup purposes when
an electrical shutdown of the entire building takes place for
more than one minute. When electricity is restored, the
Generator will be reversed for back up purposes.
(c) Utilities shall be installed and maintained at the sole
expense of Tenant. Tenant shall be responsible for the
installation, completion, and the cost of all action required
to comply with any and all permits, statutes, rules,
regulations, zoning codes, and building codes. Any testing of
the Generator shall be done between the hours of 5:00 p.m. and
6:00 a.m. Monday through Friday, or anytime Saturday or
Sunday.
(d) The Generator shall be installed at the sole expense of
Tenant and only in accordance with plans and specifications
that have been previously submitted to and approved in writing
by Landlord. Tenant shall pay Landlord a one time access fee
for the Generator of One Thousand and No/100 Dollars
($1000.00) prior to the installation of the Generator. The
Generator will be installed within the Generator Space only.
After the initial installation of the Generator and the
improvements to the Generator Space are made, no alterations
or physical additions in or to the Generator or the Generator
Space may be made without Landlord's prior written consent.
Approval by Landlord of Tenant's plans and specifications
prepared in connection with the installation of the Generator
and improvements to the Generator Space shall not constitute a
representation or warranty as to the adequacy or sufficiency
of such plans and specifications, for any use, purpose, or
condition, but such approval shall merely constitute the
consent of Landlord as required hereunder. Tenant shall be
responsible for the installation, completion and the cost of
all action required to comply with any and all statutes,
rules, regulations, zoning codes, building codes and the
requirements of the Americans with Disabilities Act of 1990
(the "ADA") in connection with the installation of the
Generator and improvements to the Generator space.
(e) Any area including the rood that is destroyed or damaged
during the installation or ongoing maintenance of the
Generator will be restored to its original condition at
Tenant's expense after the Generator is installed.
(f) At the expiration or earlier termination of the Lease,
Tenant will remove the Generator at its expense and completely
restore the Generator Space, roof and surrounding area to its
original condition.
(g) Paragraph 14, Insurance, of the Lease is amended to
provide for a combined single limit of at least $2,000,000 per
occurrence and a general annual aggregate limit of at least
$2,000,000 which shall include explosion hazard coverage and
environmental contamination coverage. In all other respects,
Paragraph 14 shall remain in full force and effect.
Co-locate
Rights 37. Tenant shall have the right to allow Tenant's customers to
locate equipment within the Premises for the purpose of
connecting to Tenant's telecommunications network. Tenant shall
at its sole cost and expense supply Landlord with an
engineering/structural report confirming such equipment will not
affect the structural integrity of Premises or Building prior to
installation of any such equipment. If such equipment affects the
structural integrity of the Premises or Building or will require
modifications to the mechanical or electrical systems of the
Building, then Tenant or Tenant's customers shall not install
such equipment without the Landlord's prior written approval of
the plans and specifications of such modifications. Such
placement does not constitute a conveyance of real estate
requiring Landlord's consent as provided in paragraph 11,
Assignment and Subletting, except Tenant's customer shall adhere
to all the terms and conditions of the Lease as if the they were
the Tenant including, but not limited to, paragraph 5, Use;
paragraph 8, Liens; and paragraph 13, indemnification.
Stem Wall
Access 38. Tenant shall have the right to penetrate the stem wall of the
Building for the purpose of installing one four inch (4")
16
<PAGE>
conduit to run fiber optic cable from Southwestern Bell to the
Premises. The design, engineering, and installation of the
conduit shall be at the sole cost and expense of Tenant and only
in accordance with plans and specifications that have been
previously submitted to and approved in writing by Landlord.
Tenant, at its sole cost and expense, shall also be responsible
for the maintenance of the conduit and the removal of the conduit
and the restoration of the areas of the Building affected by the
installation upon termination of Lease. Approval by Landlord of
Tenant's plans and specifications prepared in connection with the
installation of the conduit shall not constitute a representation
or warranty as to the adequacy or sufficiency of such plans and
specifications, for any use, purpose, or condition, but such
approval shall merely constitute the consent of Landlord as
required hereunder. Tenant shall pay Landlord Two Hundred Fifty
and No/100 Dollars ($250.00) per month for this conduit run
through the stem wall.
Roof Access for
Antenna
Location 39. Tenant shall have the right to install one (1) antenna on the
roof of the Building subject to Landlord's prior review and
written approval of the plans and specifications for the
installation of the antenna and subject to Landlord and Tenant
entering into a written agreement containing the terms and
conditions relating to the installation of the antenna and
Tenant's future roof access rights for additional antennas.
Tenant, at its sole cost and expense, shall be responsible for
the design, engineering, installation and maintenance of the
antenna. Tenant, at its sole cost and expense, shall also be
responsible for the removal of the antenna and the restoration of
the areas of the Building affected by the installation of the
antenna upon termination of the Lease. Tenant shall pay Landlord
Five Hundred and No/100 Dollars ($500.00) per month with five
percent (5%) annual increase for the use of the roof for one (1)
antenna.
IN WITNESS WHEREOF, the parties have executed this Lease Agreement in multiple
counterparts, together with Exhibits A and B, and the Asbestos Rider, each of
which shall have the force and effect of an original as of the date first
hereinabove written.
LANDLORD: BOK Plaza Associate, L.L.C.,
By: BGK Equities, Inc., Managing Member
330 Garfield Street, Suite 200
Santa Fe, New Mexico 87501
By: /s/ Cheryl S. Willoughby
----------------------------------
Cheryl S. Willoughby
Senior Vice President
TENANT: Fullnet Communications, Inc.
an Oklahoma Corporatoin
By: /s/ Timothy J. Kilkenny
----------------------------------
Name: Timothy J. Kilkenny
-------------------------------
Title: CEO
--------------
17
<PAGE>
EXHIBIT A
This Exhibit is attached to and made a part of the Lease dated the 2nd day of
December, 1999, by and between BOK Plaza Associates, L.L.C., ("Landlord") and
Fullnet Communications, Inc. ("Tenant").
Actual Premises shall be attached hereto after completion of plans approved by
Landlord and Tenant.
18
<PAGE>
EXHIBIT B
BANK OF OKLAHOMA PLAZA
RULES AND REGULATIONS
DEFINITIONS Wherever in these Rules and Regulations the word
"Tenant" is used, it shall be taken to apply to
and include Tenant and its agents, employees,
invitees, licensees, subtenants and contractors,
and is to be deemed of such number and gender as
the circumstances require. The word "Landlord"
shall be taken to include the employees and agents
of Landlord.
CONSTRUCTION The streets, sidewalks, entrances, halls,
passages, elevators, stairways and other common
area provided by Landlord shall not be obstructed
by Tenant, or used by Tenant for any other purpose
than for ingress and egress.
WASHROOMS Toilet rooms, water closets and other water
apparatus shall not be used for any purpose other
than those for which they were constructed.
INSURANCE REGULATIONS Tenant shall not do anything in the Premises, or
bring or keep anything therein, which will in any
way increase or tend to increase the risk of fire
or the rate of fire insurance, or which will
conflict with the regulations of the Fire
Department or the fire laws, or with any insurance
policy on the Building or any part thereof, or
with any law, ordinance, rule or regulation
effecting the occupancy and use of the Premises,
now existing or hereafter enacted or promulgated
by any public authority or by the Board of Fire
Underwriters.
GENERAL PROHIBITIONS In order to insure proper use and care of the
Premises, Tenant shall not:
a) Permit smoking of cigarettes or other tobacco
products in the common areas of the Building such
as, but not limited to, hallways, lobbies and
restrooms.
b) Permit the carrying of concealed weapons in the
Building or in the Premises.
c) Keep animals or birds in the Premises, unless
such animal's occupancy is required due to a
disability of Tenant.
d) Use the Premises as sleeping quarters.
e) Except as allowed in the Lease, allow any sign,
advertisement or notice to be fixed to the
Building, inside or outside, without Landlord's
prior written consent.
f) Make improper noises or disturbances of any
kind: sing, play or operate any musical
instrument, radio or television, which activity
disturbs other tenant(s) in the Building, or
otherwise do anything to disturb other tenant(s)
or which would tend to injure the reputation of
the Building.
g) Mark or defile elevators, water closets, toilet
rooms, walls, windows, doors or any other part of
the Building.
19
<PAGE>
h) Place anything on the outside of the Building,
including roof setbacks, window ledges and other
projections; or drop anything from the windows,
stairways, or parapets; or place trash or other
matter in the halls, stairways, elevators or light
wells of the Building.
i) Cover or obstruct any window, skylight, door or
transom that admits light.
j) Fasten any article, drill holes, drive nails or
insert screws into the walls, floors, woodwork, or
partitions; nor shall the same be painted, papered
or otherwise covered or in any way marked or
broken without prior written consent of Landlord.
k) Interfere with the Building's heating or
cooling apparatus.
l) Leave the Premises without locking doors,
turning off the power of all office machines, and
extinguishing all lights.
m) Install any shades, blinds, or awnings without
the prior written consent of Landlord.
n) Use any electrical heating device without the
prior written consent of Landlord.
o) Install call boxes or any kind of wire in or on
the Building without Landlord's prior written
consent and direction.
p) Manufacture any commodity, or prepare or
dispense any foods, beverages, tobacco, drugs,
flowers or other commodities or articles without
the prior written consent of Landlord.
q) Secure duplicate keys for the Premises or
washrooms, except from Landlord.
r) Use desk chairs on carpeted areas without
protective floor pads.
s) Place any weights in any portion of the
Building beyond the safe carrying capacity of the
structure.
t) Place door mats in public corridors without the
prior written consent of Landlord.
u) Grant Tenant's employees or other persons
permission to go upon the roof of the Building
without the prior written consent of Landlord.
PUBLICITY Landlord reserves the right to designate the time
when and the method whereby freight, small office
equipment, furniture, safes and other like
articles may be brought into, moved, or removed
from the Building or the Premises, and to
designate the location for temporary disposition
of such items. In no event shall any of the
foregoing items be taken from the Premises for the
purposes of removing same from the Building
without the express written consent of both
Landlord and Tenant.
20
<PAGE>
CHANGES TO THE
RULES AND
REGULATIONS Landlord shall have the right to amend these and
to make such other and further reasonable rules
and regulations as in the judgment of Landlord,
may from time to time be needful for the safety,
appearance, care and cleanliness of the Building
or for the preservation of good order therein.
Landlord shall not be responsible to Tenant for
any violation of these rules and regulations by
other tenants of the Building.
PUBLIC ENTRANCE Landlord reserves the right to exclude the general
public from the Building upon such days and at
such hours as in Landlord's judgment will be for
the best interest of the Building and its tenants.
Persons entering the Building after 6:00 p.m.
Monday through Friday (holidays excepted), after
1:00 p.m. on Saturdays and at all times on Sundays
and holidays must sign the lobby register
maintained for that purpose.
21
<PAGE>
ASBESTOS NOTICE RIDER
RIDER NO. 1 TO OFFICE LEASE
This Rider No 1 is made and entered into by and between BOK Plaza Associates,
L.L.C., ("Landlord") and Fullnet Communications, Inc. (`Tenant"), as of the day
and year of the Lease between Landlord and Tenant to which this Rider is
attached. Landlord and Tenant hereby agree that, notwithstanding anything
contained in the Lease to the contrary, the provisions set forth below shall be
deemed to be part of the Lease. All references in the Lease and in this Rider to
the "Lease" shall be construed to mean the Lease (and all exhibits attached
thereto), as amended and supplemented by this Rider. All capitalized terms now
defined in this Rider shall have the same meaning as set forth in the Lease.
Tenant has received notification that asbestos containing building materials
(ACBM) exist within the Bank of Oklahoma Plaza Building. Past inspections by two
independent consulting firms to determine the location, amount, and type of ACBM
concluded that the ACBM was in generally good condition and posed no health
hazard unless disturbed. Landlord may engage in future asbestos abatement within
the Bank of Oklahoma Plaza Building. As a result, Tenant understands that there
may be temporary inconveniences caused by such abatement activities in adjoining
or nearby leased premises. In addition, in order to avoid potential hazards
caused by unauthorized disturbance of ACBM within the building, Tenant agrees
that it will not allow of contract for any construction activities within the
Bank of Oklahoma Plaza Building that involve removal of ceiling panels, or any
form of penetrations above the ceiling or into building columns, without
requiring the persons or entities performing such work to obtain clearance for
such activities through a written permit application with the Bank of Oklahoma
Plaza Building Manager. Tenant shall take necessary measures to insure staff
compliance with these requirements pertaining to asbestos management within the
Bank of Oklahoma Plaza Building. Tenant shall further report immediately to
Landlord any observed evidence or indication of unauthorized or accidental
disturbance of ACBM.
LANDLORD: TENANT:
BOK Plaza Associates, L.L.C., Fullnet Communications, Inc.
By: BGK Equities, Inc., Managing Member an Oklahoma Corporation
/s/ Cheryl S. Willoughby By: /s/ Timothy J. Kilkenny
- ---------------------------------------- ------------------------------
Cheryl S. Willoughby Name: Timothy J. Kilkenny
----------------------
Senior Vice President Title: CEO
--------
22
EXHIBIT 21.1
Subsidiaries of FullNet Communications, Inc.
Name State of Incorporation
- ---- ----------------------
FullNet, Inc. Oklahoma
FullTel, Inc. Oklahoma
FullSolutions, Inc. Oklahoma
*Full Web, Inc. Oklahoma
* A wholly owned subsidiary of FullSolutions, Inc.
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