U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES OF SMALL
BUSINESS ISSUERS
Under Section 12(b) or (g) of the Securities Exchange Act of 1934
NETVOICE TECHNOLOGIES CORPORATION
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(Name of small business issuer in its charter)
Nevada 91-1986538
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
13747 Montfort Drive, Suite 250
Dallas, TX 75240
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(Address of principal executive offices) (Zip Code)
Issuer's telephone number: (972) 788-2988
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Securities to be registered under Section 12(b) of the Act: NONE
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Securities registered under Section 12(g) of the Act:
COMMON STOCK, $.001 PAR VALUE
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GLOSSARY
APPLET - A small application that performs a specific task within an
operating system such as the calculator or calendar in a Microsoft Windows
97(TM) program.
BRAND EQUITY - The long-term value of a marketers brand in the marketplace
(which usually occurs when customers see the brand as more than the sum of
elements in the package).
CIRCUIT SWITCHING - The process of setting up and keeping a circuit open
between two or more users, such that the users have exclusive and full use
of the circuit until the connection is released.
COMMUNICATIONS APPLICATIONS BROWSER ("CAB") - A software application,
loaded onto a computer that allows users to locate and retrieve data over
the Internet and to make phone calls and send and retrieve voice, text and
fax messages while browsing the World Wide Web.
DATA PACKETS - The method which information is transferred through
electronic media. Information is transformed into data packets, traversed
across the electronic medium and at the destination is reassembled into the
original information.
DS-3 - Digital Service, level 3 is a high-speed equivalent of 28 T-1
channels and operating at 44.736 Mbps. Also called T-3.
FILTERING - The ability to limit the type of information available via the
World Wide Web. A filtering device is typically used to filter
objectionable information, profanity or pornography.
INTEGRATED VOICE AND DATA is the combination of voice and data signals
transmitted via a single channel.
INTERNET - Several large computer networks containing information on a
variety of subjects joined together over high speed data links allowing the
free flow of information across the data links.
ISP - Internet Service Provider is an entity which provides Internet access
to its customers typically for a fee.
LAN/WAN - Local Area Network/Wide Area Network. is a short distance data
communications network used to link together computers and peripheral
devices under some form of standard control. A Wide Area Network uses
common-carrier provided lines that cover an extended geographical area. In
contrast with LAN, this network uses links provided by local telephone
companies and usually connects disparate sites.
LATAS AND INTERLATA SERVICES - Local Access and Transport Area is one of
161 local geographical areas in the US within which a local telephone
company may offer telecommunications services - local or long distance.
Inter LATA - Telecommunications services that originate in one and
terminate in another Local Area Transport Area.
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LEMS - Law Enforcement Management Systems are proprietary software
application developed and maintained by Security Telcom used to manage
systems and information for jails and correctional facilities.
NOC - Networks Operation Centers are organization and systems responsible
for the day-to-day care and management of a network.
NTVT - The Company's bulletin board trading symbol.
POINTS OF PRESENCE ("POPs") - are physical places within a LATA where a
long distance carrier or cellular provider interfaces with the network of
the local exchange carrier.
PSTN - Public Switched Telephone Network is a name which refers to a public
phone company.
RBOCS - The Regional Bell Operating companies are seven RBOCs which split
out of the old AT&T/Bell System by the FCC upon divestiture of the Bell
Operating Companies.
REAL-TIME is a term used to describe no perceived delay in transmission of
information between the actual event and the transmission of the event or
information related to the event.
ROUTING is the process of selecting the correct circuit path for a message
throughout a network to specific geographical locations.
SWITCHED CARRIERS are the traditional long distance carriers using the PSTN
like AT&T, MCI, etc.
TELEPHONY is the science of transmitting voice, data, video or image
signals over a distance via a network of a communication conduit, typically
copper or fiber and hardware used to route signals.
TUNNELING is to temporarily change the destination of a packet in order to
traverse one or more routers that are incapable of routing to the real
destination.
UNIFIED Messaging is a telecommunications application that allows the user
to retrieve a variety of messaging mediums, i.e. Voicemail, e-mail and fax
from one unified box. Messages can be retrieved via phone or e-mail.
VOIP NETWORK is the Voice over Internet Protocol Network. It is a
communications network utilizing Internet Protocol technology in the
delivery of voice and data transmissions. Internet Protocol technology
uses packet switching to deliver voice and rata rather than the traditional
method of circuit switching.
WWW.NETVOICE.NET is the NetVoice Technologies Corporation URL.
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PART I
IN THIS REGISTRATION STATEMENT THE TERMS "NETVOICE," "COMPANY," "WE,"
"US" AND "OUR" REFER TO NETVOICE TECHNOLOGIES CORPORATION AND OUR WHOLLY
OWNED SUBSIDIARIES, NETVOICE TECHNOLOGIES, INC. AND NETLD.COM, INC. WE
REFER TO NETVOICE TECHNOLOGIES, INC. AS NVT, INC.; WE REFER TO NETLD.COM,
INC. AS NLD; AND WE REFER TO OUR $.001 PAR VALUE COMMON STOCK AS COMMON STOCK.
ITEM 1. DESCRIPTION OF BUSINESS.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements under "Business," "Risk Factors," "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
and elsewhere in this Registration Statement constitute forward-looking
statements. These statements involve known and unknown risks, significant
uncertainties and other factors what may cause our actual results, levels
of activity, performance or achievements to be materially different from
any future results, ability to repay debt to noteholders, levels of
activity, performance or achievements expressed or implied by such forward-
looking statements. Such factors include, among other things, those listed
under "Risk Factors" including, but not limited to, "Our limited operating
history," "Our operating losses, current liabilities of $4.1 million and
anticipate losses will continue and increase in the foreseeable future,"
"We intend to pursue multiple streams of revenue," "We may experience
difficulties managing our expanding operations," "We may fail to establish
and maintain strategic relationships" and "We are dependent on sales agents
to market and distribute our products and services.
HISTORY
Our Company is a Nevada corporation. We and our wholly-owned
operating subsidiary, NetVoice Technologies, Inc., a Nevada corporation,
have executive and operating offices at 13747 Montfort Drive, Suite 250,
Dallas, Texas 75240. Our telephone number is (972) 788-2988. Our e-mail
address is www.NetVoice.net.
The Company was incorporated as Eastco, Inc. in the State of Nevada on
June 16, 1977. The Company became a publicly held corporation with limited
unsuccessful operations, principally in the mining industry, until it
became dormant in 1986. On December 8, 1997, the Company's name changed to
Blue Pines, Inc., and again on August 11, 1998, the Company changed its
name to NetVoice Technologies Corporation and commenced operations in its
present form.
On August 13, 1998, the Company concluded a reorganization agreement
with NVT, Inc. Pursuant to the reorganization agreement, the Company issued
3,000,000 shares of our common stock to the six shareholders, in exchange
for all of the outstanding shares of common stock of NVT, Inc. As a result
of concluding the reorganization agreement, NVT, Inc. became a wholly owned
subsidiary of the Company, and the six former shareholders of NVT, Inc.
became the holders of approximately 75 percent of our outstanding shares of
common stock. See "Principal Shareholders" and "Certain Transactions."
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Our wholly owned subsidiary, NVT, Inc., was incorporated in Nevada on
June 30, 1998, and is the successor company to a Texas limited liability
company organized in December, 1997, for the purpose of developing,
acquiring and operating telephone communication facilities and networks
that were intended to transmit voice over the Internet utilizing
conventional and Internet technologies.
NetLD.com, Inc. was incorporated in the State of Nevada as a wholly
owned subsidiary of the Company on October 14, 1999. This corporation was
initially formed for the purpose of conducting the traditional long
distance telephone services of the Company. Currently, we have had no
activity in this subsidiary and it is not anticipated traditional long
distance will be pursued as part of our business model. We may disband
this entity or use it for other corporate purposes as yet to be determined.
OVERVIEW
We are a provider of voice transmission over the Internet, which
allows our customers to make high-quality, low-cost telephone calls on
their personal computers or traditional telephones with a technology known
as Voice over Internet Protocol ("VoIP"). The technology has advanced so
that we now communicate from:
* one personal computer to another
* personal computer to a conventional telephone
* conventional phone to conventional phone
We commenced offering our long distance Internet services during the
past year as part of our current business plan. We have aggressively been
deploying VoIP gateways in 25 markets located throughout the United States
with leading manufacturers such as Cisco Systems, Inc. and leading Internet
backbone suppliers. Currently each market has sufficient capacity to
provide 50 million minutes of communication time per year.
Our goal is to expand our gateway network after an assessment of
locations which provide high potential traffic and investigate new VoIP
applications and develop new installation sites.
INDUSTRY BACKGROUND
The Internet is experiencing unprecedented growth as a global medium
for communications and commerce. International Data Corporation estimates
that the number of Internet users worldwide will grow from approximately
142 million at the end of 1998 to 399 million by the end of 2002. These
users are increasingly using the Internet as a communications medium. A
recent study by E-Marketer, a market research firm, estimated that 9.4
billion e-mail messages are delivered daily. Instant text communication
through online "chat" rooms is also gaining widespread acceptance.
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Online commerce is also becoming widely accepted as a means of doing
business, however, projections for Internet commerce growth involve a
multitude of variables, many of which cannot be readily predicted.
According to International Data Corporation, Internet users worldwide
purchased more than $50 billion of goods and services in 1998.
International Data Corporation projects that commerce over the Internet
will grow to approximately $1.3 trillion in 2003. Projections for Internet
commerce growth involve a multitude of variables, none of which can be
reliably predicted.
The use of the Internet to make long distance calls will enable
consumers the ability to talk directly to online sellers and facilitate the
online purchasing experience at lower prices. We feel Internet long
distance will become an important component of online purchasing and
communicating with customers.
EMERGENCE OF INTERNET TELEPHONY
Internet telephony has emerged as a low cost alternative to
traditional long distance calls. International Data Corporation projects
that the Internet telephony market will grow rapidly to over $23.4 billion
in 2003, from approximately $1.1 billion in 1998. According to Wired
magazine, VoIP Telephony will be 135 billion minutes by 2004, up from 2.7
billion today.
Internet telephone calls are currently less expensive than traditional
long distance calls primarily because the technology by which Internet
phone calls are made is more cost-effective than the technology by which
traditional long distance calls are made. Also, calls carried over the
Internet or our network bypass a significant portion of long distance
tariffs and taxes. See "Regulation of the Internet" for a more detailed
description.
We use a technology called "packet-switching" to break voice and fax
calls into discrete data packets, route them over the Internet or our
network and reassemble them into their original form for delivery to the
recipient. Traditional long distance calls, in contrast, are made using a
technology called "circuit switching" which carries these calls over
international voice telephone networks. These networks are typically owned
by governments or carriers who charge a tariff for their use. Circuit
switching requires a dedicated connection between the caller and the
recipient that must remain open for the duration of the call. As a result,
circuit-switching technology does not allow multiple conversations to be
carried over the same line. The greater efficiency involved in packet-
switching technology creates network cost savings that can be passed on to
the consumer in the form of lower long distance rates.
INTEGRATION OF VOICE INTO THE INTERNET
We believe that Internet telephony offers significant benefits to
consumers and businesses beyond long distance cost savings. The
technologies that enable Internet telephony can be applied to integrate
live voice capabilities into the Web. We believe that this integration can
enhance the potential for the Internet to become the preferred medium for
both communications and commerce. For example, the integration of voice
into the Web could supplement existing text-based modes of Internet
communication such as e-mail and online chat by adding a live, secure, low-
cost or free voice alternative. We believe that this will be attractive
both to
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consumers and businesses and allow us to combine our long distance
network, Internet access and voice telephony into a single business model.
In addition, voice-enabling the Web should give Internet shoppers the
ability to speak directly with customer service representatives of online
retailers in order to ask questions and alleviate concerns about online
security. This may increase the probability that a sale is made and may
give online retailers a key competitive advantage by providing them with
opportunities to sell higher margin and additional products to these
customers. Voice-enabling a commercial Web site may also give online
retailers the ability to provide more responsive customer support and
service.
Integrating live voice capabilities into the Web would also enable
Internet companies to offer enhanced communications services, such as
providing Internet users with a central source for retrieving voicemail,
e-mail, faxes and pages. We believe this would allow these companies to
attract more users to their sites and to increase the amount of time these
users spend on their sites. This increased usage will allow these Internet
companies to attract advertisers and secure higher advertising rates,
thereby increasing revenue.
LIMITATIONS OF EXISTING INTERNET TELEPHONY SOLUTIONS
The growth of Internet telephony has been limited to date due to poor
sound quality attributable to technological issues such as delays in packet
transmission and network capacity limitations. However, recent
improvements in packet-switching technology, new software algorithms and
improved hardware have substantially reduced delays in packet
transmissions. In addition, the use of private networks to transmit calls
as an alternative to the public Internet is helping to alleviate network
capacity constraints. Finally, the emergence of new Internet access
technologies, such as high-speed modems, are addressing local Internet
access issues.
Several large long distance carriers, including AT&T and Sprint, have
announced Internet telephony service offerings. However, to date certain
of these announced service offerings have not been deployed on a large
scale. Many also require users to purchase other telecommunications
services such as voice messaging and Internet access. Smaller Internet
telephony service providers also offer low-cost Internet telephony services
from personal computers to telephones and from telephones to telephones.
These services, however, are available only in limited geographic areas and
require payment by credit card which may preclude many international
customers from signing up for these services. We also believe that
existing Internet telephony service providers rely upon technologies and
systems that lack large-scale billing, network management and monitoring
systems, and customer service capabilities required for the integration of
voice communication into the Web.
In addition, many companies currently provide Internet telephony
software and services that allow Internet telephone calls to be made
between personal computers. However, most of these companies require both
the initiator and the recipient of the call to have the same software
installed on their personal computers and to be online at the same time.
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OUR SOLUTION
We will deliver high-quality Internet and telephony services to
consumers and businesses. Our solution provides the following benefits to
our customers:
* NATIONAL NETWORK. Currently we offer service to 25 markets and
are expanding to a nationwide network. Through our network that
includes 25 points of presence (POP's) we are able to offer dial
up Internet service in 13 major markets and full service domestic
long distance nationwide. As we expand our network our costs will
continue to significantly decrease while we continue to offer
coast to coast access.
* LOW COST. Our services allow our customers to make telephone
calls, often at a fraction of the cost of traditional long
distance service. Because the technology that enables long
distance calls to be routed over the Internet is more cost-
effective than the technology by which traditional long distance
calls are made, we are able to charge lower rates than
traditional long distance carriers.
* HIGH VOICE QUALITY. We offer high voice and data transmission
quality through our packet-switching network, which reduce packet
loss and delay, route packets efficiently and perform quality-
enhancing functions, such as echo cancellation. We intend to
continue to enhance the voice quality of our services as our
customer base and business grow.
* EASE OF USE AND ACCESS. Our services are designed to be
convenient and easy to access. Access to our network for
organizational and reseller customers is 100% seamless after
network initiated implementation.
* RELIABLE SERVICE. Our network is reliable because its design is
technologically advanced. Fault tolerant design allows us to
expand our network and add capacity by adding switches and
gateways to the existing network. Our system also provides
seamless service and high-quality voice transmission through our
ability to dynamically reroute packets if problems arise. We
believe that our ability to provide reliable service is essential
to the success of the company.
OUR STRATEGY
While a large number of VoIP companies have been formed in recent
years, most VoIP companies focus on the build out and development of
international VoIP networks, in the effort to capture an ever shrinking
high margin revenue base. Little attention has been given to domestic VoIP
with bundled service offerings. We believe that, in this very competitive
landscape offering many voice and data transmission options, leasing time
(or purchasing minutes) on VoIP networks will quickly become a commodity
business, as the various competitors whittle margins to gain growth and
market share. We feel it is imperative to not only offer a quality,
nationwide network but to also be an aggressive marketing organization
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seeking to provide value added products and services. The following points
can summarize our overall strategy:
NETWORK STRATEGY
* Build out POP's (points of presence) across the United States in
major cities and grow into markets dominated by the largest long
distance carriers;
* Attract large carrier customers as a means to push telephony
usage minutes through our network; and
* Focus on the domestic and international market through strategic
relationships.
MARKETING STRATEGY
* Search for additional value added products and services in
telephony and forms of communications for our product portfolio;
* Focus on purchasing or licensing products from outside
development organizations; and
* Promote significant effort towards building brand name awareness.
WEBSITE STRATEGY
We anticipate that in February 2000, the new NetVoice website will be
completed. Our website will be designated to provide our customers a
fully-functional site with e-commerce, marketing and content with
information tailored to their communication needs. Highlights of the
website and customized links will include:
* CollegiateLD.com., a fully functional e-commerce and provisioning
web site focusing on selling Internet and telephony related
products into the college market;
* ResidentialLD.com., a fully functional e-commerce and
provisioning site focusing on selling Internet and telephony
related products into the residential market;
* CorporateLD.com, a marketing site focusing on driving interest in
NetVoice corporate solutions;
* Agents corner - information for existing agents and recruiting
information; and
* Account Information - full, real time access to account
information, provisioning and deactivation.
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OUR NETWORK
Voice transmission over the Internet is of very recent origin and was
initially limited to communication from one personal computer to another.
The technology enabling such communication is known as Voice over Internet
Protocol or "VoIP". This technology has become so advanced as to enable
voice communication over the Internet.
* from one personal computer to another
* from a personal computer to a conventional telephone
* from a conventional telephone instrument to another such instrument
CURRENT NETWORK
We have provided long distance services over the Internet for the past
year. We have been working on an aggressive schedule to increase the size
of our network, establish alliances with other long distance carriers with
existing networks, exploit our current installations, and generally attempt
to capture a larger portion of the long distance market. Our VoIP gateway
network is expanding in multiple geographic locations. We currently have
operational gateways in 25 markets:
Albuquerque Fort Worth New Jersey San Antonio
Atlanta Houston New Orleans Tampa
Austin Jacksonville New York Tulsa
Chicago Kansas City Oklahoma City Waco
Dallas Little Rock Omaha
Denver Los Angeles Phoenix
El Paso Miami/Ft. Lauderdale Portland
Our largest markets are in Dallas, Houston, Miami/Ft. Lauderdale,
Atlanta, Chicago, Los Angeles, Tampa and New York. These markets each have
the capacity of 7 to 10 million minutes per month. Our second tier
consists of San Antonio, Portland, Denver, Kansas City, Jacksonville and
Phoenix. These markets have the capacity of 1.0 million minutes per month.
The remaining markets have the capacity of 500,000 minutes per month.
Currently, we are only utilizing approximately 4.0 million minutes per
month for all locations which is below our breakeven of 50 million per
month.
In each of the foregoing operating cities we utilize our VoIP
gateways, acquired from leading manufacturers such as Cisco Systems
("Cisco"). Our Internet telephony services are provided by a combination
of our own leased fiber, leased PSTN facilities and leased Internet
services from leading Internet backbone suppliers.
NETWORK EXPANSION
Our current expansion plans are as follows:
* Expand existing long distance traffic utilizing the Internet
* Establish new installation sites
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* Evaluate sites for needed upgrades
* Maintain existing hardware and software
* Investigate additional applications for VoIP
We are planning to have our VoIP gateways installed in 50 cities by
the end of 2000. The bulk of the equipment costs will be financed through
Cisco's financing program for small businesses and additional private and
public equity and/or debt offering. Currently our revenues do not exceed
network costs and we experience short falls each month requiring additional
infusions of capital which may or may not be available in the future.
NETWORK ADVANTAGES
The principal advantages of our use of the Internet and the VoIP network:
* Utilization of packet-switching technology that converts natural
voice into data packets that are transmitted over our network to
our destination gateways where the packets are returned to
natural voice.
* Cost savings that we can pass on to our customers in the form of
lower long distance charges.
* Ability to transmit faxes routed over our VoIP network without
purchasing additional hardware or software.
* Delivery of high voice quality and faxes transmitted without
delay with immediate delivery confirmation.
CONTRACTUAL RELATIONSHIPS
We have entered into certain contractual relationships to provide our
customers communication products and establish a high quality VoIP network.
These include:
* CISCO SYSTEMS, INC. We utilize a Cisco Systems Powered
Network(TM) that uses a technology called "packet-switching" to
break voice and fax calls into discrete data packets, route them
over the Internet or our network and reassemble them into their
original form for delivery to the recipient. This greater
efficiency creates network cost savings that can be passed on to
the consumer in the form of lower long distance rates. Our
relationship with Cisco allows us to benefit from their newly-
developed products and services as they become available.
* VIRTUALPLUS, INC. Virtualplus, Inc.("Virtualplus") is a leading
supplier of outsourced, value-added, enhanced telecommunications
service to the Internet and telecommunications industries. The
company was formed in 1995, when it designed a voicemail and fax
distribution system. This system was later migrated onto the
Internet and within this process the Internet's first unified
messaging system was created. The Virtualplus services include
Messagepoint, Messagejet and JustPhone and are available
worldwide in over 100 area codes. Pursuant to
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our agreement, NetVoice is able to distribute the Virtualplus
unified messaging products privately labeled under the NetVoice name.
* SIGN-UP SERVER. Sign-Up Server(TM) provides back end technical
capabilities for ISPs. Providing all server space, tunneling,
filtering, NOC facilities and technical service to end customers,
Sign-Up Server(TM) allows ISPs to simply manage their front end -
web development, marketing and content. The Company and Sign-Up
Server(TM) will jointly market Internet service with private
branding capabilities through our combined network of agents.
* LEVEL 3 COMMUNICATIONS, INC. Our contractual relationship for
co-location with Level 3 Communications. allows NetVoice to offer
high quality voice communications at a lower cost over a managed
VoIP network. In utilizing Level 3's co-location facilities and
IP CrossRoads products, we will have access to sufficient
bandwidth on demand that will allow us the ability to meet
increased demand for rapid growth and flexibility in managing the
cost of our network.
* DUNCAN & HILL, INC. Duncan & Hill, Inc. is a Chicago based
communications marketing company that attempts to create results-
based advertising programs destined to achieve increases in
sales, traffic and awareness for products and services. They
will assist us in the development of marketing initiatives
including logo redesign, product positioning, promotional
activities and all marketing communications plans.
PRODUCTS AND SERVICES
VoIP
Currently, substantially all of our revenues come from sales of high
volume minutes to large long distance carriers transmitted over our VoIP
network and pre-paid calling companies. Revenues derived from carrier
sales and sales to prepaid calling companies constituted $443,000 in 1999,
and comprised 73% of our total revenues. The remaining 27% of our revenue
was from our abandoned traditional long distance traffic. Currently, our
revenues do not exceed our costs and we have been financing the shortfalls
with outside, private financing.
Based on available funding, it is our intention to enter into the
corporate market beginning in the second quarter 2000 to deliver voice,
internet, data and video conferencing to small- and medium-size businesses.
Our existing network is capable of handling this varied traffic at its
present size. We will market these services through a to be developed, in-
house sales staff and independent agents.
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INTERNET SERVICE
We offer dial up Internet access in our gateway cities and dedicated
Internet service to our corporate customers. We will also host all
Internet service back office functions to order virtual ISP capabilities to
our customers including radius servers, filtering, e-mail, technical
support and billing. Internet service can be provided under the NetVoice
name or can be private labeled for our customers.
As previously noted, we have entered into an agreement with
Virtualplus, Inc., the world's largest provider of unified messaging with
over 500,000 virtual mailboxes under their management. We will distribute
this service on a private label basis under our Company's name and logo.
This service allows the user to pick up voicemail, e-mail and fax from a
single unified box.
PRE-PAID LONG DISTANCE CALLING CARDS
Currently we are focusing on selling prepaid long distance calling
cards to the college student market. To date, this market has only been
tested on a small scale. Our initial, informal investigation has indicated
this market to be viable for the following reasons:
* The cost of acquiring these customers is relatively low due to
geographical consolidation.
* Campus newspapers and other media expenses are relatively low.
* Our sales personnel have easy access to students.
* The students are characteristically well acquainted with the
Internet, and, therefore, receptive to our offering of long
distance calling on the Internet.
* These college and university students (and their parents) are
also receptive to the convenience of purchasing minutes by
accessing our website and/or calling our 800 telephone number.
THE NETVOICE COMMUNICATION APPLICATION BROWSER
We currently have under development the NetVoice CAB, an Internet
browser that allows the user to have access to a suite of communication
functions such as long distance and fax while browsing the world wide web.
Access to all functionality features of the browser will be available in
the borders of the screen while it runs in the center of the screen.
Functionality features include:
* Free PC to PC calls provided both parties have our browser
downloaded onto their PC's;
* Address book with ability to import address book from Microsoft
Outlook(TM);
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* Unified messaging capabilities;
* Search engine access; and
* Access to "favorites" much like traditional Internet bookmarking
functionality.
Our browser will be distributed free of charge and downloaded via our
Company website or through marketing agreements.
SALES, MARKETING AND DISTRIBUTION
Our strategy for building a viable position in the Internet telephony
market includes the following key elements:
* Marketing our services through multiple channels;
* Pursuing multiple sources of revenue;
* Enhancing brand recognition;
* Expanding and enhancing our products and services; and
* Pursuing acquisitions of other telecommunications companies to
expand our revenues and technological base.
INTERNET SERVICE PROVIDERS MARKETS
We expect to offer virtual ISP services and will distribute VoIP
products to ISP's to distribute to their consumer and business customers.
These products will offer revenue-generating opportunities for the ISP's as
well as their e-commerce customers. We will attempt to seek out products
that allow us to co-brand with our NetVoice logo.
CORPORATIONS
Corporations are focused on cost cutting opportunities and
communication improvements that allow information systems to be both
simplified and enhanced as a means to stay competitive. Accordingly, we
believe this segment will readily embrace the cost savings and enhanced
services that VoIP can offer over existing LAN's/WAN's.
RESIDENTIAL
While the residential VoIP market may be difficult to penetrate due to
high customer acquisition costs vs. number of minutes purchased per
customer, we believe there are niche residential areas which we can enter
with relatively low competition and marketing costs, while allowing us to
build a brand name recognizable by the typical consumer. As NetVoice
Technologies grows we can use these niche segments as a launching pad from
which to enter the
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general residential market. The initial residential niches may include the
college market, which affords access to opinion leaders and early adapters
to new technology.
WHOLESALE MARKET
The wholesale market consists of agents, carriers and pre-pay service
providers. All entities requiring large volume of minutes at low costs are
our potential customers, including the more traditional long distance PSTN
carriers who can resell our minutes with a higher margin than PSTN minutes.
We feel that we are uniquely poised to capture clients in this segment,
because of our ability to offer lower cost minutes, due to the current lack
of regulation in our technology and consequent absence of tariffs, which
many of our potential customers in this segment cannot avoid on their own
networks.
DISTRIBUTION CHANNELS
IN-HOUSE SALES
We currently have two, full time individuals whose responsibilities
are sales and marketing. It is our intention, as funds become available,
to hire more sales personnel who will be based in our Dallas office.
AGENTS
We intend to expand our use of existing long distance and telephony
agent networks as a means to sell our low cost, high quality VoIP products
to carriers, pre-pay providers, institutional organizations and corporations.
WORLD WIDE WEB
Virtual agents will be sought, as a means to distribute VoIP minutes
via ISP's, and in turn individual e-commerce web sites. E-commerce web
sites operated by virtual agents can sell our products as revenue
generating opportunities for their site and NetVoice Technologies.
Through targeted advertising and word of mouth, we intend to direct
customers to purchase low cost long distance services via our website. We
plan to initially drive our website sales to universities and colleges.
This very price sensitive market segment is an ideal potential revenue
stream due to their need for low cost long distance and the relatively
inexpensive access to a university population. Low cost college newspaper
and radio advertising as well as on-site visits allow us to quickly and
inexpensively reach this segment with our message. Also, across the board
access and acceptance of Internet usage for the typical college student
will drive on-line registration and purchase of products through our
website. We believe this segment will find our program attractive due to
our ability to offer low prices.
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TECHNOLOGY
As discussed above, we are currently developing a communications
applications browser that allows the user to have access to a suite of on
line communications devices and other functionality while browsing or
searching the world wide web. Our browser will be distributed to the end
user for free via our websites. This browser will be designed to allow the
NetVoice logo to appear on users desktops which will build brand awareness
while the applet will allow NetVoice to have access to these users as we
market Internet and Telephony related products and services.
CUSTOMERS
During the fiscal year ending December 31, 1998, IXC Communications,
Inc. (formerly Coastal Telephone, Inc.) ("IXC") accounted for approximately
61% of our total revenues and for the subsequent nine (9) month period
ended September 30, 1999, IXC accounted for 24% of our revenues. Caprock
Communications Corporation and World Access, Inc. accounted for 16% and 23%
of our revenues, respectively during the most recent nine month period. We
do not believe the loss of these customers would have a significant impact
on our revenues in the year 2000 due to our current marketing efforts to
other large customers.
REGULATION
REGULATION OF INTERNET TELEPHONY
The use of the Internet to provide telephone service is a recent
market development. Currently, the Federal Communications Commission is
considering whether to impose surcharges or additional regulations upon
certain providers of Internet telephony. On April 10, 1998, the FCC issued
its report to Congress concerning the implementation of the universal
service provisions of the Telecommunications Act. In the report, the FCC
indicated that it would examine the question of whether certain forms of
phone-to-phone Internet telephony are properly classified as information
services or as telecommunications services. The FCC noted that it did not
have, as of the date of the report, an adequate record on which to make a
definitive pronouncement, but that the record suggested that certain forms
of phone-to-phone Internet telephony appear to have the same functionality
as non-Internet telecommunications services and lack the characteristics
that would render them information services. If the FCC were to determine
that certain services are subject to FCC regulation as telecommunications
services, the FCC may require providers of Internet telephony services to
make universal service contributions, pay access charges or be subject to
traditional common carrier regulation. Such a determination would have a
material adverse effect on the price structure for the Company's VoIP
services. It is also possible that some services may be regulated by the
FCC differently. In addition, the FCC sets the access charges on
traditional telephony traffic, and if it reduces these access charges, the
cost of traditional long distance telephone calls will probably be lowered,
thereby decreasing some of our competitive pricing advantage.
In September 1998, two regional Bell operating companies, U S WEST and
BellSouth, advised Internet telephony providers that the regional companies
would impose access charges on Internet telephony traffic. In addition,
U S WEST has petitioned the FCC for a declaratory ruling that providers of
interstate Internet telephony must pay federal access charges, and has
petitioned the public utilities commissions of Nebraska and Colorado for
similar rulings
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concerning payment of access charges for intrastate Internet telephone
calls. At this time, it is not known whether these companies, U S WEST
and BellSouth, will actually impose access charges or when such changes
will become effective. If these companies succeed in imposing access
charges, such changes are expected to reduce the cost savings afforded by
Internet telephony as compared to traditional telephone service. Access
charges would materially adversely affect the development of our Internet
telephony business. In February 1999, the FCC adopted an order concerning
payment of reciprocal compensation, which provides legislative support for
a possible future finding by the FCC that providers of Internet telephony
must pay access charges for at least some subset of Internet telephony
services. If the FCC were to make such a finding, the payment of access
charges could materially adversely effect our business, results of
operations and financial condition. Many of our competitors are lobbying
the FCC for the imposition of access charges on Internet telephony traffic.
To our knowledge, there are currently no domestic and few foreign laws
or regulations that prohibit voice communications over the Internet. State
public utility commissions may retain jurisdiction to regulate the
provision of intrastate Internet telephony services. A number of countries
that currently prohibit competition in the provision of voice telephony
have also prohibited Internet telephony. Many countries permit but
regulate Internet telephony. If Congress, the FCC, state regulatory
agencies or foreign governments begin to regulate Internet telephony, such
regulation may materially adversely affect our business, financial
condition or results of operations.
REGULATION OF THE INTERNET
Congress has recently adopted legislation which regulates certain
aspects of the Internet, including online content, user privacy, taxation,
access charges, liability for third-party activities and jurisdiction. The
European Union has also enacted several directives relating to the
Internet, one of which addresses online commerce. In addition, federal,
state, local and foreign governmental organizations currently are
considering other legislative and regulatory proposals which would regulate
the Internet. Increased regulation of the Internet may decrease its growth
and eliminate or reduce its competitive advantage, which may increase the
cost of doing business via the Internet or otherwise materially adversely
affect our business, results of operations and financial condition.
The Federal Trade Commission has proposed regulations regarding the
collection and use of personal identifying information obtained from
individuals when accessing Web sites, with particular emphasis on access by
minors. These regulations may include requirements that companies
establish certain expensive procedures to disclose and notify users of
privacy and security policies, obtain consent from users for certain
collection and use of information and to provide users with the ability to
access, correct and delete personal information stored by the company.
These regulations may also include enforcement and redress provisions.
There can be no assurance that we will adopt policies that conform with any
regulations adopted by the FTC, or that our cost will remain competitive
after adopting compliance procedures. Moreover, even in the absence of
those regulations, the FTC has begun investigations into the privacy
practices of companies that collect information on the Internet. One
investigation resulted in a consent decree pursuant to which an Internet
company agreed to establish programs to implement the principles noted
above. We may become subject to a similar investigation or the FTC's
regulatory and enforcement efforts may adversely affect the ability to
collect demographic and personal information from users which could have an
adverse effect on our ability to provide
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highly targeted opportunities for advertisers and electronic commerce
marketers. We may increase our regulatory risk by targeting university
populations, despite the attractiveness of this market segment. Any of the
foregoing adverse regulatory developments would materially adversely affect
our business, results of operation and financial condition.
Recently, the European Union adopted a directive that imposes
restrictions on the collection and use of personal data. Under the
directive, citizens of the European Union are guaranteed rights to access
their data, rights to know where the data originated, rights to have
inaccurate data rectified, rights to recourse in the event of unlawful
processing and rights to withhold permission to use their data for direct
marketing. The directive could, among other things, affect United State
companies that collect information over the Internet from individuals
located in European Union member countries, and may impose restrictions
that are more stringent than current Internet privacy standards in the
United States. In particular, companies with offices located in European
Union countries will not be allowed to send personal information to
countries that do not maintain adequate standards of privacy. The
directive does not, however, define what standards of privacy are adequate.
As a result, the directive may adversely affect the activities of entities
such as us that may engage in data collection from users in European Union
member countries.
EMPLOYEES
As of January 4, 2000, we had fifteen (15) full time employees,
including six (6) technical personnel, two (2) in sales and marketing and
seven (7) in management and finance. As noted elsewhere in this Report, a
top priority of our marketing strategy is to hire additional sales
personnel in an attempt to create additional traffic for the network.
RISK FACTORS
The risks described below are not the only ones that we face.
Additional risks that are not yet known to us or that we currently think
are immaterial could also impair our business, operating results or
financial condition. Other information set forth in this Report, including
our consolidated financial statements and the related notes detail other
risks effecting our business. If any of the following risks actually
occur, our business, financial condition or results of operations could be
materially adversely affected.
RISKS RELATED TO OUR BUSINESS
WE HAVE A LIMITED OPERATING HISTORY ON WHICH TO EVALUATE OUR POTENTIAL FOR
FUTURE SUCCESS
Although the Company was incorporated in June 1977, we only began
operations in January of 1998 when we acquired NVT. Therefore, we have
only a limited operating history. As an early stage company in the new and
rapidly evolving Internet telephony market, we face numerous risks and
uncertainties. Since commencement of operations, we have primarily been
investing our capital into the expansion of our network. We will be unable
to continue the expansion of our network without the proceeds from future
private and/or public financing. Our limited operating history does not
provide meaningful historical financial or operational
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information upon which to make plans or forecasts. We cannot assure you
that our business strategy will be successful or that we will successfully
address these risks.
WE HAVE A HISTORY OF OPERATING LOSSES, CURRENT LIABILITIES OF $4.1 MILLION
AND ANTICIPATE LOSSES FOR THE FORESEEABLE FUTURE
We have incurred net losses of $1,723,367 for the year ended December
31, 1998 and approximately $2,673,446 for the nine months ended September
30, 1999. As of September 30, 1999, we had an accumulated deficit of
approximately $4,396,813 and current liabilities of $4.1 million which
includes notes due to noteholders in year 2000. The Company has never had
any profits. We expect to continue to incur operating losses for the
foreseeable future. We expect that operating and marketing expenses will
increase significantly during the next several years. In order to achieve
and maintain profitability, we will need to generate significant revenue
and we cannot assure you that we will generate sufficient revenue for
profitability. Even if we do achieve profitability, we cannot assure you
that we will be able to sustain or increase profitability. If revenue grows
more slowly than we anticipate or if operating and marketing expenses
exceed our expectations or cannot be managed in proportion to revenues, our
business, results of operations and financial condition will be materially
adversely affected.
WE INTEND TO PURSUE MULTIPLE STREAMS OF REVENUE, MANY OF WHICH ARE UNPROVEN
To date, we have generated revenue from routing minutes of use of our
services over the Internet and to a limited degree from the sale of
traditional one-plus long distance. In the future, we intend to pursue new
revenue streams by leveraging our Internet telephony network to integrate
real-time voice communication capabilities into the Web. For example, we
intend to pursue new Web-based revenue opportunities from personal computer
to phone applications, as well as offering integrated voice and data
service to corporations. We intend to market our various products as
single packages to various groups of end-users. We have no experience in
the specific markets we intend to enter and have never generated revenues
from this type of business. We intend to devote significant capital and
resources to create these new revenue streams and we cannot ensure that our
investments will be profitable. To be successful, we must, among other
things, develop and market products and services that achieve broad market
acceptance by individuals, businesses, online retailers and advertisers.
We cannot assure you that the market for our new products and services will
develop or that demand for our new products and services will emerge, grow
or generate sufficient revenue to become profitable.
WE MAY HAVE DIFFICULTIES MANAGING OUR EXPANDING OPERATIONS, WHICH MAY
REDUCE OUR CHANCES OF ACHIEVING PROFITABILITY
Our expected growth will place a significant strain on our managerial,
operating, financial and other resources. We expect this rapid growth to
continue and expect these strains to continue over time. Our future
performance will depend, in part, on our ability to manage this growth
effectively. To that end, we will have to undertake the following tasks,
among others:
* develop our operating, administrative and financial and
accounting systems and controls;
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* improve coordination among our engineering, accounting, finance,
marketing and operations personnel;
* enhance our management information systems capabilities; and
* hire and train additional qualified personnel, including
personnel with technical skills and experience which we do not
now have.
We cannot assure you that we will be able to accomplish these tasks,
and if we are unable to accomplish any of them, our business would be
materially adversely affected.
A FAILURE TO ESTABLISH AND MAINTAIN STRATEGIC RELATIONSHIPS COULD LIMIT OUR
ABILITY TO INCREASE OUR SALES
We believe that our success depends, in part, on our ability to
develop and maintain strategic relationships with leading Internet
companies and computer hardware and software companies, as well as with key
marketing distribution partners. If any of our strategic relationships are
discontinued, sales of our products and services and our ability to
maintain or increase our customer base may be substantially diminished. We
will depend on these relationships to:
* distribute our products to potential customers;
* increase usage of our services;
* build brand awareness; and
* cooperatively market our products and services.
WE WILL DEPEND ON AGENTS TO MARKET AND DISTRIBUTE OUR PRODUCTS AND SERVICES
AND TO PROVIDE LOCAL CUSTOMER SUPPORT
We must forge new relationships with agents in markets where our
products and services are not adequately marketed and maintain and deepen
relationships in those markets where we seek greater penetration. Agents
also typically provide local customers with front-line support. If we hire
an agent who fails to market our products and services effectively, or
fails to provide adequate front-line customer support, we could lose market
share. Additionally, if an agent provides poor customer service, we could
lose brand equity. Therefore, we must maintain and hire additional agents
that are capable of providing high-quality sales and service efforts. The
loss of an agent in a key market, or the failure of a current or future
seller to adequately provide customer support could materially adversely
affect our business, results of operations and financial condition.
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COMPETITION COULD REDUCE OUR MARKET SHARE AND DECREASE OUR REVENUE
The market for our services has been extremely competitive, and is
expected to remain extremely competitive for the foreseeable future. Many
companies offer Internet telephony products and services, and many of these
companies already have a substantial presence in this market in which we
are only a recent entrant.
In addition, a number of large telecommunications providers, such as
ICG Commun-ications, IPVoice.com, ITXC, RSL Communications (through its
Delta Three subsidiary) and ibasis, Inc., route Internet telephony traffic
to destinations on a worldwide basis, while our operations are focused on
the United States only. In addition, major long distance providers, such
as AT&T, Deutsche Telekom, Frontier, MCI WorldCom, Qwest Communications and
Net2Phone, as well as other major companies such as Motorola and Intel,
have all entered or plan to enter the Internet telephony market. Many of
our competitors are larger than us and have substantially greater
financial, distribution and marketing resources than we have. We cannot be
certain that we will be able to compete successfully in the developing
Internet telephony market.
WE FACE PRICING PRESSURES, WHICH MAY LESSEN OUR COMPETITIVE PRICING ADVANTAGE
Any success of our product and service offerings must be based on our
ability to provide discounted voice communications by taking advantage of
cost savings achieved through Internet telephony. In recent years, the
price of traditional domestic and international long distance calls has
been declining. In response to these declines, we have lowered the price
of our service offerings. Should prices of traditional long distance calls
decline to a point where we no longer have a price advantage over our
competitors, we would lose our anticipated significant competitive
advantage and would have to rely on factors other than price to
differentiate our product and service offerings. If we fail to do so, our
business could be materially adversely affected.
WE NEED TO HIRE AND RETAIN PERSONNEL TO SUSTAIN OUR BUSINESS
Our performance is highly dependent on the continued services of our
executive officers and other key personnel, the loss of any of whom could
materially adversely affect our business, results of operations and
financial condition.
We need to attract and retain other highly skilled technical and
managerial personnel, for whom there is intense competition. Certain of
such individuals must have skills and experience, which we do not have. We
cannot assure you that we will be able to attract and retain the personnel
necessary for the development of our business. The inability to attract
and retain qualified technical and managerial personnel would materially
adversely affect our business, results of operations and financial condition.
WE MAY NOT SUCCEED IN DEVELOPING OUR BRAND AND NAME RECOGNITION
We believe we must establish and maintain a brand and name recognition
in order to attract and expand our targeted client base. We believe the
importance of reputation and name
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recognition will increase as competition increases in the Internet
telephony market. Promotion and enhancement of our name will depend on the
effectiveness of our marketing and advertising efforts. Success in
establishing brand and name recognition will also depend upon our success
in continuing to provide high-quality products and services. We cannot
assure you that our advertising, marketing or quality control efforts will
be successful. If our customers do not perceive our service to be
effective or of high quality, our brand and name recognition would be
materially adversely affected.
WE DEPEND ON OTHER TELECOMMUNICATIONS CARRIERS TO ROUTE OUR TRAFFIC
We do not own any local exchange transmission. All of the telephone
calls made by our customers are connected at least in part through leased
transmission facilities. In addition, national telephone companies may not
be required by law to allow us to lease necessary transmission lines and
may be unwilling to enter into such agreements on a cost-effective basis,
considering terms and price. Further, even if applicable law requires
national telephone companies to lease transmission lines to us, we expect
to encounter delays of unknown duration in negotiating leases and
interconnection agreements, and commencing operations. Additionally,
disputes may arise, relating to pricing, terms and billing, after
commencing operations.
In the United States, the providers of local exchange transmission
facilities are generally the incumbent local exchange carriers, including
the regional Bell operating companies. The permitted pricing of local
exchange facilities that we lease in the United States is subject to
uncertainties. The Federal Communications Commission issued an order
requiring local exchange carriers to establish a pricing standard for those
facilities that may be charged to competitors and the United States Supreme
Court recently upheld the FCC's jurisdiction in this regard. However, the
incumbent local exchange carriers can be expected to bring further legal
challenges to the FCC's decision. If they succeed, the result may be to
increase our cost to obtain incumbent local exchange carrier facilities.
Local exchange carriers from which we intend to lease facilities are
also our competitors, such as the regional Bell operating companies. We
generally lease lines on a fixed-cost basis. These include leases of
transmission capacity for point-to-point circuits on a monthly or longer-term
fixed-cost basis. There is every reason to expect that our local
telephone operating company competitors will have advantages, including a
lower internal price and greater transmission capacity than that expected
to be available to us.
OUR SYSTEMS MAY NOT ACCOMMODATE SIGNIFICANT GROWTH IN THE NUMBER OF USERS
Our success depends on our ability to handle a large number of
simultaneous calls. We expect that the volume of simultaneous calls will
increase significantly as we expand our operations. If this occurs,
additional stress will be placed upon the network hardware and software
that manages our traffic. We cannot assure you of our ability to
efficiently manage a large number of simultaneous calls. If we are not
able to maintain an appropriate level of operating performance, or if our
service is disrupted, then we may develop a negative reputation and our
business, results of operations and financial condition would be materially
adversely affected.
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BECAUSE WE ARE UNABLE TO PREDICT THE VOLUME OF USAGE AND OUR CAPACITY
NEEDS, WE MAY ENTER INTO DISADVANTAGEOUS CONTRACTS
Our business plan projects that the number of calls that we handle
over our network will continue to grow in the future. If our plans are
realized, we may be required to enter into additional long-term agreements
for leased capacity. To the extent that we over-estimate the anticipated
volume of calls, we may become obligated to pay for more transmission
capacity than we actually use, resulting in our incurring costs without
achieving corresponding revenue. Conversely, if we underestimate our
capacity needs, we may be required to obtain additional transmission
capacity through more expensive means because the capacity is added prior
to our expected delivery time. We cannot assume that such capacity will be
available either on a planned or emergency basis. The occurrence of either
over-estimation or under-estimation of capacity needs could significantly
reduce our operating margins.
OUR NEED FOR AND AVAILABILITY OF ADDITIONAL FUNDS
Due to our limited operating history, current liabilities of $4.1
million including notes due to our existing noteholders and the rapid
evolution of the Internet telephony market, our future capital needs are
difficult to predict. We will require additional capital in order to take
advantage of increasing the size of our network, unanticipated
opportunities, including strategic alliances and potential acquisitions,
debt repayment or to respond to changing business conditions and
unanticipated competitive pressures. Additionally, funds from operations
may be less than anticipated. Should these circumstances arise, we will
need to raise additional funds, either by borrowing money or issuing
additional equity. We cannot assure you that we will be able to raise such
funds on favorable terms or at all. If we are unable to obtain additional
funds as needed, then we may be unable to take advantage of new
opportunities or take other actions that otherwise might be important to
our business, results of operations and financial condition.
WE ARE SUBJECT TO RISKS ASSOCIATED WITH SYSTEM FAILURES, DELAYS AND INADEQUACIES
Our success depends on our ability to provide efficient and
uninterrupted, high-quality Internet telephony services. Any damage to or
failure of our systems or operations could result in reductions in, or
terminations of, our services. In addition, in the case of frequent or
persistent system failures, our brand and reputation could be materially
adversely affected. Our systems and operations are vulnerable to damage or
interruption from natural disasters, power loss, telecommunication system
failures, physical or electronic break-ins, sabotage, intentional acts of
vandalism and similar events that are expected to be generally beyond our
control. The occurrence of any or all of these events could materially
adversely affect our business, results of operations and financial condition.
OUR PRODUCTS AND SERVICES ARE SUBJECT TO RISKS RELATED TO THE YEAR 2000 PROBLEM
Many computer systems and software products are coded to understand
only dates that have two digits for the relevant year. These systems and
products need upgrading to accept four digit entries in order to
distinguish 21st century dates from 20th century dates. Without upgrading,
many computer applications could fail or create erroneous results beginning
in the year 2000.
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We did not experience any problems as a result of the Year 2000 problem,
however, some of our vendors and customers may have failed to have their
systems updated. This could result in a problem for us in the future. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations--Year 2000 Systems Costs" for a more complete description of the
Year 2000 risks that we face and the steps we have taken to reduce those risks.
AT THIS POINT WE HAVE NOT OBTAINED DIRECTORS AND OFFICERS INSURANCE
We have investigated the cost of insurance against liabilities arising
out of the negligence of Officers and Director(s). The Company has not
obtained such insurance, because the availability thereof is extremely
limited and, where available, the cost is excessive. The Company is
required to indemnify certain costs and liabilities for negligence of its
officers and directors. Therefore, the Company will have to satisfy any
such liabilities out of its assets. Any such liabilities which might arise
could be substantial and may exceed the assets of the Company.
WE HAVE A LIMITED NUMBER OF SHAREHOLDERS AND A LIMITED NUMBER OF SHARES
AVAILABLE FOR TRADING.
To our knowledge, there are only sixty five (65) record holders of our
Common Stock although we believe the actual number of shareholders who hold
our stock in their brokerage accounts or "street name" accounts to be much
higher. Accordingly, the public float or shares available for sale at any
given time is extremely limited which can cause significant price swings
when large blocks of our Common Stock are bought or sold in the market.
Also, our daily trading volume is limited with a small number of brokerage
firms making a market in our stock. Accordingly, the price you pay or
receive when you buy and sell your shares may not be reflective of an
active, arms-length trading market.
WE MAY HAVE CONTINGENT LIABILITIES FROM OUR PREDECESSOR OPERATIONS
Although in 1977, we originally were involved in the gold mining
industry, the extent of our actual mining activity was limited to acquiring
a mineral lease which was subsequently abandoned due to lack of lease
payments or exploration activity. Accordingly, we may have some
contingencies which may have arisen in 1977. However, we believe such an
occurrence to be highly unlikely due to the expiration of applicable
statute of limitations and the lack of any claims as to our prior operations.
THE MARKET PRICE OF OUR SHARES MAY EXPERIENCE EXTREME PRICE AND VOLUME
FLUCTUATIONS FOR REASONS OVER WHICH WE HAVE LITTLE CONTROL
The stock market has, from time to time, experienced extreme price and
volume fluctuations. Prices of securities of Internet-related companies
have been especially volatile and have often fluctuated for reasons that
are unrelated to the operating performance of the affected companies. The
market price of shares of our Common Stock could fluctuate greatly due to
a variety of factors. In the past, companies that have experienced
volatility in the market price of their stock have been the objects of
securities class action litigation. If we were the object of
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securities class action litigation, it could result in substantial costs
and a diversion of our management's attention and resources.
OUR EXECUTIVE OFFICERS, DIRECTORS AND PRINCIPAL STOCKHOLDERS OWN A MAJORITY
OF OUR VOTING STOCK AND WILL BE ABLE TO EXERT SIGNIFICANT INFLUENCE OVER
DECISIONS REQUIRING A STOCKHOLDER VOTE
Our Executive Officers, Directors and principal stockholders and their
affiliates own in the aggregate, beneficially approximately 69% of our
outstanding Common Stock, which includes 936,250 outstanding options with
an exercise price of $1.00 exercisable over the next five years. As a
result, our Executive Officers, Directors and principal stockholders are
able to exercise significant control over all matters requiring approval by
our stockholders, including the election of directors and approval of
mergers and other significant corporate transactions. This concentration
of ownership may also have the effect of delaying or preventing a change in
control that might otherwise benefit our stockholders.
STOCKHOLDERS MAY SELL SHARES OF OUR COMMON STOCK IN A MANNER THAT
NEGATIVELY AFFECTS THE PRICE OF COMMON STOCK
If any of our principal stockholders sell a substantial number of
their shares of Common Stock, those sales could adversely affect the market
price of our Common Stock and could impair our future ability to raise
capital through the sale of equity securities. We currently have 6,073,300
shares of Common Stock outstanding. In addition, as of November 1, 1999,
we had reserved for issuance 936,250 shares of Common Stock issuable upon
exercise of stock options. All of our outstanding shares of Common Stock
will be freely transferable without restriction under the Securities Act,
unless they are held by our "affiliates."
RISKS RELATED TO OUR INDUSTRY
OUR FUTURE GROWTH DEPENDS UPON AN INCREASE IN THE USE OF THE INTERNET AS A
MEDIUM FOR VOICE COMMUNICATIONS
The Internet telephony market is new and rapidly evolving, and the
technology is still in the early stages of development. Historically, the
audible sound quality of Internet telephony calls was poor. As the
industry has grown, substantial improvements to sound quality have been
made but technological hurdles still need to be resolved. Additionally,
the capacity constraints of the public Internet network may, if not
resolved, impede further development of Internet telephony to the extent
that callers experience delays, errors in transmissions or other
difficulties. As is typical in the case of a new and rapidly evolving
industry, demand and market acceptance for our services are subject to a
high level of uncertainty and risk. In particular, the Internet must be
accepted by business and residential users as a viable alternative to
traditional telephone service. Customers who have already invested
substantial resources in integrating traditional telephony service with
their operations may be particularly reluctant or slow to adopt a new
technology which makes their existing infrastructure obsolete. Because the
Internet telephony market is new and evolving, it is difficult to predict
the size of this market or its growth rate. If the Internet telephony
market fails to develop, develops more slowly than we expect or becomes
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saturated with competitors, then our business, results of operations and
financial condition will be materially adversely affected.
OUR FUTURE SUCCESS DEPENDS UPON THE INCREASED USE OF THE INTERNET
The use of the Internet as a commercial marketplace is at an early
stage of development. Demand and market acceptance for recently introduced
products and services over the Internet are still uncertain. We cannot
predict whether customers will be willing to shift their traditional
activities online. For example, we do not know if people will increase
their usage of online directories or make online purchases. The Internet
may not prove to be a viable commercial marketplace for a number of
reasons, including:
* concerns about security;
* Internet network congestion;
* inconsistent quality of service; and
* lack of cost-effective, high-speed access.
If the use of the Internet as a commercial marketplace does not continue to
grow, then our business, results of operations and financial condition will
be materially adversely affected.
OUR SUCCESS DEPENDS, IN PART, ON OUR ABILITY TO KEEP PACE WITH RAPID
TECHNOLOGICAL CHANGE
Our continued success depends, in part, on our ability to keep pace
with rapid technological change, new product development and evolving
industry standards and practices. Technological advancements have allowed
the use of packet-switching technology for the transmission of calls. The
development of voice applications for the Internet is part of a larger
trend of convergence of standard voice and data networks. We believe that
the providers of packet-switching technology will be able to offer quality
communications services at rates that are significantly less than the rates
currently charged for long distance calls. However, our failure to respond
quickly and cost-effectively to these developments would materially
adversely affect our business, results of operations and financial condition.
GOVERNMENTAL REGULATIONS REGARDING THE INTERNET MAY BE ENACTED, WHICH COULD
IMPEDE OUR BUSINESS
To date, governmental regulations have not materially restricted use
of the Internet in our markets. Nevertheless, the FCC has engaged in
substantial regulation of the traditional telephony markets. Accordingly,
the legal and regulatory environment that pertains to the Internet in which
our business would operate is uncertain and may change. Uncertainty
regarding the regulatory environment and new regulations could increase our
costs of doing business and may even prevent us from delivering our
products and services over the Internet. The growth of the Internet may
also be significantly slowed by industry specific or more general
regulation of
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the Internet. Such regulation could delay growth in demand for our
products and services and limit the growth of our revenue.
In addition to new regulations being adopted, existing laws may be
applied to the Internet. New and existing laws may cover issues which include:
* sales and other taxes;
* access charges;
* user privacy;
* pricing controls;
* characteristics and quality of products and services;
* consumer protection;
* cross-border commerce;
* copyright, trademark and patent infringement; and
* other claims based on the nature and content of Internet materials.
WE MAY BE THE VICTIM OF FRAUD OR THEFT OF SERVICE.
From time to time, callers have obtained our services without
rendering payment by unlawfully using our access numbers and personal
identification numbers. Theft of service is a widespread issue for the
telephony market. As Internet telephony services are more heavily used,
theft of service is expected to be a problem in the Internet telephony
market, which will require industry action to protect consumers. We
attempt to manage these theft and fraud risks through our internal controls
and our monitoring and blocking systems. To date, we have not experienced
material losses from the unauthorized use of access numbers and personal
identification numbers. However, we can provide no assurance that our risk
management practices will be sufficient to protect us in the future from
unauthorized transactions or thefts of services that could materially
adversely affect our business.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATIONS.
In some cases, you can identify forward-looking statements by
terminology such as "may," "will," "should," "could," "expects," "plans,"
"anticipates," "believes," "estimates," "predicts," "intends," "potential"
or "continue" or the negative of such terms or other comparable
terminology. These statements are only predictions. In evaluating these
statements, you should specifically consider various factors, including the
risks outlined within. These factors may cause our actual results to
differ materially from any forward-looking statement.
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<PAGE>
Although we believe that the expectations reflected in the forward-
looking statements are reasonable, we cannot guarantee future results, our
ability to repay noteholders and other debt, levels of activity,
performance or achievements. Moreover, neither we nor any other person
assume responsibility for the accuracy and completeness of such statements.
We are under no duty to update any of the forward-looking statements after
the date of this Registration Statement.
OVERVIEW
We currently provide VoIP long distance services via the Internet in
25 markets throughout the United States and in the past to a very limited
degree, provided traditional long distance. Our current VoIP business
consists primarily of wholesale services marketed to other long distance
carriers and prepaid calling card companies. Currently approximately 90%
of our revenues are derived from our VoIP long distance services via the
Internet. We currently market our services directly and through agents.
During 1998 we began operations in our present form. NVT was a Texas
limited liability company that was formed in December 1997, which was
reincorporated as a Nevada corporation (NVT, Inc.) and then reorganized as
a wholly-owned subsidiary of the Company, which prior to the merger was an
inactive public company. In September of 1998 our first VoIP gateway was
installed in Dallas, Texas. The initial focus was to build out our Texas
network and move into other areas of the United States. Accordingly,
during 1999, we continued to expand our domestic network with the greatest
amount of traffic terminating or originating in Jacksonville, Tampa,
Portland and Dallas. We currently have our VoIP network operational in 6
cities in Texas and a total of 25 markets throughout the U.S.
The Company was originally incorporated as Eastco, Inc. in the State
of Nevada on June 16, 1977. The Company became a publicly held corporation
whose only business was to acquire an interest in a gold mining lease which
was subsequently lost due to non-payment of monthly delay rentals, until it
became dormant in 1986. On December 8, 1997, the Company's name changed to
Blue Pines, Inc., and again on August 11, 1998, the Company changed its
name to NetVoice Technologies Corporation and commenced its operations in
its present form.
On August 13, 1998, the Company concluded a reorganization agreement
with NVT, Inc. Pursuant to the reorganization, the Company issued 3,000,000
shares of its common stock to the six NVT shareholders, in exchange for all
of the outstanding shares of common stock of NVT, Inc. As a result, NVT,
Inc. became a wholly owned subsidiary of the Company and the six former
shareholders of NVT, Inc. became the holders of approximately 75 percent of
our outstanding shares of common stock. See "Principal Shareholders" and
"Certain Transactions."
Our wholly owned subsidiary, NVT, Inc. was incorporated in Nevada on
June 30, 1998, and is the successor company to a Texas limited liability
company organized in December, 1997, for the purpose of developing,
acquiring and operating telephone communication facilities and networks
that were intended to transmit voice over the Internet utilizing
conventional and Internet technologies.
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<PAGE>
NetLD.com, Inc. was incorporated in the State of Nevada as a wholly
owned subsidiary of the Company on October 14, 1999. This corporation was
formed for the purpose of conducting the traditional long distance
telephone services of the Company and to separate traditional long distance
from our VoIP services operated under NVT, Inc. None of the traditional
long-distance business has ever been transferred to NetLD.com, and in
November we entered into an Agreement to dispose of our long distance
bases. We currently have had no activity in this subsidiary.
FINANCING SOURCES
From January 1999 through April 1999, we privately placed 493,250
shares of our Common Stock at $2.00 per share for a total of $986,500. Net
proceeds of the offering after expenses was approximately $900,000.
Expenses of the offering included the payment of fees to broker-dealers
($55,000) and costs of the offering ($31,500), including legal, accounting,
printing, marketing-related expenses, due diligence expenses, travel
related expenses, and preparation and distribution of sales literature.
The net proceeds were primarily used by our subsidiary, NVT, Inc., to repay
short-term loans ($250,000), provide marketing funds ($150,000), and to
begin the building of our Internet VoIP telephony network ($150,000).
Since January of 1998 NVT, Inc. has privately issued a series of
promissory notes. These funds were used primarily to continue the build-out
of our VoIP network, which includes equipment purchases, and for working
capital. The Company believes it does not have any liability as a party to
the note obligations, however, due to the close relationship of the
corporations and common management, it is possible these notes could be
considered as obligations of the Company. The terms of these notes are
nine-months with an interest rate of 13.35%. At October 31, 1999, we had
$2.6 million outstanding in such notes. During 1999, we repaid $600,000
together with accrued interest from the sale of Common Stock and additional
notes. Approximately $2,000,000 falls due throughout the calendar year
2000. All of the Notes will be due and payable on or before July 29, 2000,
unless extended for nine (9) months at the option of the noteholder. At
this time, we do not have the ability to repay this debt. However, we
anticipate we will request the noteholders to convert their notes into our
Common Stock or use a portion of any proceeds from a future public or
private offering to repay these obligations.
In October 1998 and June 1999, we purchased customer bases of two long
distance resellers. The purchase prices were $110,000 and $60,000,
respectively. In November of 1999 the Company sold these bases to an
affiliated entity for $170,000 which will include the forgiveness of a note
to a Director for $137,000 and $33,000 in cash to be paid in the second
quarter of 2000. Management determined that these customer bases did not
fit well with our current VoIP network.
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<PAGE>
REVENUE FROM OPERATIONS
Currently, all of our revenues are derived from Internet long distance
services sold to our VoIP customers. One of the Company's initial
strategies is to continue to acquire existing customer bases concentrated
in specific geographical areas which complement our current markets and
convert them to our VoIP network. We also anticipate deriving revenues
through direct sales by our existing employees and independent agents. In
the future, in order to diversify, we plan to introduce a variety of value
added services utilizing our VoIP network including:
* dial-up Internet access;
* unified messaging;
* search engines;
* prepaid calling; and
* wholesale internet services.
Revenues from operations are derived 73% from the sale to wholesale
customers and 27% from the sale to our retail customers. Margins from both
wholesale and retail sales are not currently sufficient to cover our
network costs which include leased bandwidth, connection to the Internet,
and local lines within a local calling area. Expansion of our network and
the addition of services will have to be financed by an increase in traffic
and additional financings. We expect this trend to continue for a period
of time as we continue to concentrate on the expansion of our VoIP network
and customer traffic. In the second quarter of 2000, we plan to offer
Internet services and voice over the same facilities to corporate customers.
COST STRUCTURE
Our costs and expenses include:
* network costs;
* selling and marketing;
* general and administrative; and
* interest and depreciation.
Network costs primarily consist of costs associated with the routing
and termination of our customers' traffic. The costs include:
* leased bandwidth and connection to the Internet;
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<PAGE>
* leased network equipment;
* local lines used to carry calls to and from our network
locations; and
* our network facilities.
We expect these costs to increase into the future as we further expand
our network in the United States and throughout the world. The majority of
these costs are fixed up to a certain level of traffic. Above this level
of traffic, the network would have to be expanded to handle additional volume.
Sales and marketing expenses include the expenses anticipated to be
associated with acquiring customers, establishing brand recognition,
commissions paid to our sales personnel, advertising costs and customer
referral fees. We expect sales and marketing expenses to increase over time
as we aggressively market our products and services.
During 1998 and 1999, sales and marketing expenses were relatively
fixed costs. Sales and marketing expenses are expected to increase both in
terms of absolute dollars and as a percentage of revenue as our revenue
grows. We expect to spend significant capital to build brand recognition to
the extent possible due to our relatively small size. Most of our sales
and marketing expenses are anticipated to be expanded to obtain strategic
relationships with a variety of agents, portals, content providers, and
other key customer destinations on the Web.
General and administrative expenses consist of the salaries of our
employees and associated benefits, and the cost of travel, business
entertainment, rent and utilities. A large portion of our general and
administrative expenses is allocated to operations and customer support.
Customer support expenses include the costs associated with customer
service and technical support, and consist primarily of the salaries and
employment costs of the employees responsible for those efforts. We expect
operations and customer support expenses to increase over time to support
new and existing customers. We expect general and administrative costs to
increase to support our growth, particularly as we establish a larger
organization to implement our business plan. Historically, we have included
our development and start-up costs, comprised primarily of payroll expenses
for our technical team of engineers and developers, in general and
administrative expenses. We plan to incur additional costs for research
and development, though they are not expected to increase as a percentage
of revenue. Over time, we expect these relatively fixed general and
administrative expenses to decrease as a percentage of revenue, primarily
as a consequence of increased revenues.
Interest consists of the cost incurred including commission on the
issuance of the short-term notes, interest on the notes and interest
expenses associated with our equipment financing primarily through Cisco
Systems, Inc.. The notes have a term of nine-months with an average
interest rate of 13.35%. During our fiscal year 1998 and for the nine
months ended September 30, 1999, we paid interest in the aggregate amount
of $341,408 and $685,000, respectively. Interest payable on the Notes in
2000 will be approximately $200,000, assuming the Notes are repaid in full
on their respective due dates, and not extended by the option of the
several payees for nine (9) months.
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<PAGE>
Depreciation primarily relates to our hardware infrastructure. We
depreciate our infrastructure over its estimated five-year useful life
under generally accepted accounting principals ("GAAP") using the straight-
line method. In addition, we will be adding more originating and
terminating VoIP Gateways as traffic volumes justify. We expect
depreciation to increase in absolute terms as we grow our networks to
support new and acquired customers, but to decrease as a percentage of
total revenue. During December 1999, we have entered into a lease
financing agreement through Cisco for additional equipment purchases, in
the aggregate amount of $1,900,000.
RESULTS OF OPERATIONS
===========================================================================
Period from Period from
Nine months January 7, 1998 January 7, 1998
ending (inception) to (inception) to
September 30, September 30, December 31,
1999 1998 1998
===========================================================================
Revenues $ 606,685 $ 4,169 $ 120,737
----------- ----------- -----------
Costs:
Network Costs 992,728 63,780 252,194
Selling and Marketing 285,269 59,633 100,933
General and Admin. 765,678 380,656 610,990
Deprec. and Amort. 257,946 11,700 36,626
Interest 713,510 210,434 368,561
Other 265,000 235,000 474,800
Total Costs 3,280,131 961,203 1,844,104
----------- ----------- -----------
Loss from Operations $(2,673,446) $ (957,034) $(1,723,367)
=========== =========== ===========
===========================================================================
COMPARISON OF JANUARY 7, 1998 (INCEPTION) TO SEPTEMBER 30, 1998 TO NINE-MONTHS
ENDED SEPTEMBER 30, 1999
Revenue increased from $4,000 when we commenced operations to $607,000
for the period from inception to September 30, 1998 and for the nine months
ended 1999, respectively. The increase over last period is a result of our
business moving from the start-up phase into an operational entity. In
revenue generated in 1999, revenue from wholesale sales over our VoIP
network accounted for 73%. Additionally, as we expanded our network, we
had more locations to offer existing customers. We expect our wholesale
revenue to continue to grow, as we continue to expand our network into
additional locations. Currently, we are expanding our "points of presence"
in major markets to handle DS-3 traffic and above. The focus on the
wholesale revenue is expected to give us the ability to grow our network
and eventually begin to offer more on net locations when we enter the
retail sector. This retail sector will primarily consist of corporate
customers and various target and niche markets.
To date all of our revenue has been earned in our voice telephony
business. However, in November of 1999, we entered into several
contractual agreements to provide internet services over our network. We
expect to continue to offer other value-added services utilizing our
network in the future.
Total direct costs increased from approximately $64,000 to $993,000
for the periods ending September 30, 1998 and 1999, respectively. The
increase of costs in the period ending September 30, 1999 over the period
ending September 30, 1998 is a result of our business moving from the
start-up phase into an operational entity. We have continued to purchase
additional equipment to expand our VoIP network and direct costs have
increased as a result. As we implement several of the new wholesale
contracts, in the first quarter of fiscal year 2000, direct costs as a
percentage of revenue are expected to decrease with J.D. Services, Inc.,
IDS Long Distance, Inc., Caprock Communication and General Communication
Corporation.
Selling and Marketing costs increased from $60,000 to $285,000 for the
periods ending September 30, 1998 and 1999, respectively. To date selling
and marketing costs primarily consist of the costs of our direct sales
personnel. As we begin to offer voice and additional value-added services
to the retail market, costs associated with brand recognition and direct
marketing will increase substantially. Also, as we begin to market through
other distribution channels, including the use of independent agents,
selling and marketing costs will increase as a percentage of revenue.
General and Administrative costs increased from $381,000 to $766,000
for the periods ending September 30, 1998 and 1999, respectively. As we
continue to grow our network, expand our product offering and execute our
business plan, we expect these expenses to continue to grow. They will
grow as a percentage of revenue for a period, until all necessary personnel
and systems are in place to handle future revenue and support future
products. Thereafter, we anticipate that general and administrative costs
will decrease as a proportion of revenues.
Depreciation and Amortization costs increased from $12,000 to $258,000
for the periods ending September 30, 1998 and 1999, respectively. It is
anticipated depreciation for currently owned equipment in 2000 will be
$800,000. Depreciation consists primarily of the depreciation of our VoIP
gateways. We depreciate this network equipment over five years on a
straight-line basis. It can be expected that depreciation will continue to
increase as we continue to expand our network. Amortization consists of
the amortization of the cost of two customer bases. In November of 1999,
we sold these two bases to an affiliated company for forgiveness of a note
and cash. We intend to acquire customer bases in the future that have
synergies with our network and business plan. These synergies include
profitability, location and type of customer.
Interest costs increased from $210,000 to $714,000 for the periods
ending September 30, 1998 and 1999, respectively. This increase is the
result of the increase in the issuance of short-term notes, the commissions
paid to broker-dealers for the sale of these notes and the cost of our
financing for capital equipment.
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<PAGE>
Our Loss from Operations increased from $(958,000) to $(2,700,000) for
the periods ending September 30, 1998 and 1999, respectively. This
increase is due primarily to the continued expansion of our network and an
increase in personnel and overhead. We expect continued and increasing
losses as we continue to pursue our growth strategy.
QUARTERLY RESULTS OF OPERATIONS
The following table sets forth certain quarterly financial data for
the quarters since inception. This quarterly information is unaudited, has
been prepared on the same basis as the annual financial statements, and, in
our opinion, reflects all adjustments (consisting only of normal recurring
accruals) necessary for a fair presentation of the information for periods
presented. Operating results for any quarter are not necessarily indicative
of results for any future period.
<TABLE>
<CAPTION>
===============================================================================================================
Period Quarter Ended
Ended --------------------------------------------------------------------------
Mar. 31, June 30, Sept. 30, Dec. 31, Mar. 31, June 30, Sept. 30,
1998 1998 1998 1998 1999 1999 1999
===============================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
Revenues $ 0 $ 0 $ 4,169 $ 116,568 $ 124,201 $ 135,760 $ 346,724
---------- ---------- ---------- ---------- ---------- ---------- ----------
Costs:
Network Costs 21,181 42,599 188,414 198,318 262,487 531,923
Selling and Marketing 19,300 40,333 41,300 114,227 67,408 103,634
General and Admin. 60,519 144,401 175,736 230,334 191,566 289,102 285,010
Deprec. and Amort. 11,700 24,926 59,500 95,697 102,749
Interest 23,466 51,376 135,592 158,127 170,898 244,110 298,502
Other 235,000 239,800 145,000 120,000
Total Costs 83,985 236,258 640,960 882,901 879,509 958,804 1,441,818
---------- ---------- ---------- ---------- ---------- ---------- ----------
Loss from Operations $ ( 83,985) $ (236,258) $ (636,791) $ (766,333) $ (755,308) $ (823,044) $(1,095,094)
========== ========== ========== ========== ========== ========== ==========
===============================================================================================================
</TABLE>
We have experienced growth in revenue in each quarter since inception,
reflecting the initial implementation of our business plan and our
increased level of activity. We expect this trend to continue as we
continue to pursue some additional wholesale opportunities while we build
our VoIP network.
Since we have continued to expand our VoIP network to handle future
growth, we have experienced and should continue to experience an increase
in our network costs.
As a result of our limited operating history and the emerging nature
of the markets in which we compete, we are unable to accurately forecast
our revenue and direct costs as they may be impacted by a variety of
factors. These factors include the level of use of the Internet as a
communications medium, seasonal trends, bandwidth constraints, the amount
and timing of our capital expenditures, introduction of new services by us
or our competitors, price competition, technical difficulties or system
downtime, and the development of regulatory
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<PAGE>
restrictions by governing agencies. See "Risk Factors" and "Statement As
To Forward Looking Statements."
LIQUIDITY AND CAPITAL RESOURCES
Since our inception in January of 1998, we have financed our
operations through a private placement of our Common Stock for $986,250 in
net proceeds in January 1999, and from the sale of $2.4 million, nine-month
notes beginning in January 1998 through December 1999. As of September 30,
1999, we have a total of $2.6 million outstanding in these notes. Most of
our equipment has been financed through capital leases with our equipment
vendors primarily through Cisco Systems, Inc. Since September 30, 1999, we
have utilized an additional $1.9 million in financing from these equipment
vendors.
As of September 30, 1999 we had $46,000 in cash and cash equivalents.
We used cash in operating activities in aggregate amounts of $800,000 and
$1,900,000 for the periods from (inception) to December 31, 1998 and the
nine months ending September 39, 1999, respectively.
Our operating activities generated negative cash flow of approximately
$1,700,000 for the nine months ending September 30, 1999, compared to
negative cash flow of approximately $700,000 for the period from January 7,
1998 (inception of NVT, Inc. operations) to September 30, 1998. Cash used
in investing activities was $960,000 and $361,000 for the period from
January 7, 1998 (inception) to September 30, 1998 and the nine months
ending September 30, 1999, respectively. Our cash used in investing
activities was principally for the purchase of telecommunications and
Internet equipment.
Our future capital requirements will depend on numerous factors,
including:
* market acceptance of our services;
* brand promotions;
* the amount of resources we devote to the development of our
current and future products; and
* the expansion of our in-house sales force and marketing our services.
We may experience a substantial increase in our capital expenditures
and lease arrangements consistent with the growth in our operations and
adding additional Personnel. Our current cash flow from operations is not
sufficient to meet our working capital and capital expenditure needs for at
least the next 12 months and accordingly, we will attempt to seek
additional financing. Accordingly, there can be no assurance that we will
have sufficient capital to finance potential acquisitions or other growth
oriented activities, and may issue additional equity securities, incur debt
or obtain other financing.
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<PAGE>
In 1998 and 1999, we entered into various contracts for the purchase
of network facilities. Our currently outstanding network costs will
require us to expend approximately $220,000 per month in 2000.
Additional commitments for the year 2000 are as follows:
* repayment of indebtedness on the nine-month notes in the
aggregated amount of $2,200,000;
* leases on corporate offices, equipment and network facilities in
the aggregate amount of $1,400,000; and
* network expenditures in the aggregate amount of $2,600,000.
The Company expects to fund these year 2000 commitments from cash from
operations and from the funds raised in future private and public financings.
COMMITMENTS AND CONTINGENCIES
We have entered into various Agreements with Service Providers, on an
order by order basis, to lease bandwidth, purchase dedicated Internet
access, lease local lines, and to rent space to locate our network
equipment. These service orders range in term from month to month to five
year agreements. Below is a schedule that details the significant terms of
these commitments;
MONTHLY
PAYMENTS TERM CANCELLATION PENALTY INITIAL ORDER
-------- ---- -------------------- -------------
Sprint(TM) $45,000 3 yr. 100% of year 1; 50% of October 1998
Commercial Year 2; 50% of year 3
Global $35,000 2 yr. $25,000 per month August 1999
Crossing commitment
E.Spire $35,000 1-3 yr. Commitment for the total August 1998
period for value of orders
Cox $9,000 5 yr. Commitment for full January 1999
amount for entire period
Electric $21,000 1 yr. Commitment for full July 1999
Lightwave amount for the entire period
MCI $11,000 1 yr. Commitment for 50% of Sept 1999
WorldCom the remaining due
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<PAGE>
Level 3 $40,000 1 yr. Commitment for total August 1999
Communications, Inc. amount for the full term
Caprock $5,000 1 yr. Take or Pay Commitment July 1999
Communications
YEAR 2000 SYSTEMS COSTS
None of our systems failed in connection with the change of dates on
January 1, 2000. Certain of our suppliers and customers may have failed to
achieve full year 2000 compliance before the end of 1999. The failure of
our suppliers and customers to fully and effectively upgrade their software
and systems for transition to the year 2000 could have an as yet
undetermined, material adverse effect on our business, financial conditions
and results of operations.
We incurred expenses of less than $100,000 in connection with
remediation of year 2000 related issues. We will continue to expense costs
associated with year 2000 compliance when they are incurred.
ITEM 3. DESCRIPTION OF PROPERTY.
Our address is 13747 Montfort Drive, Suite 250, Dallas, Texas 75240.
The Company's telephone number is (972) 788-2988. The Company leases
approximately 5,640 square feet at $8,695 per month for a period of three
(3) years which will expire March 31, 2001. The Company believes this
space is adequate for its current needs.
At each of our points of presence we co-located with other competitive
local exchange carriers or other telecommunications providers for rack
space for our Cisco gateways. We typically enter into one (1) year lease
agreements which range from $450 to $700 per month per rack.
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
PRINCIPAL STOCKHOLDERS
The following table sets forth information with respect to the
beneficial ownership of our outstanding Common Stock as of January 3, 2000
and as adjusted to reflect this offering by:
* each person who is the beneficial owner of more than 5% of our
common stock;
* each of our Directors;
* each of our named Executive Officers in the summary compensation
table;
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<PAGE>
* all of our named Executive Officers and Directors as a group.
Amount and Nature of
Name and Address of Shareholder Beneficial Ownership(1) Percent of Class
- ------------------------------ ----------------------- ----------------
William D. Yotty(2) 1,905,000 27.18%
13747 Montfort Dr., Suite 250
Dallas, Texas 75240
William Bedri(3) 700,000 9.99%
13747 Montfort Dr., Suite 250
Dallas, Texas 75240
Jim Chambas(4) 850,000 12.13%
13747 Montfort Dr., Suite 250
Dallas, Texas 75240
Jeff Rothell(5) 300,000 4.28%
13747 Montfort Dr., Suite 250
Dallas, Texas 75240
Garth Cook(6) 300,000 4.28%
13747 Montfort Dr., Suite 250
Dallas, Texas 75240
Maya Crothers(7) 60,000 0.86%
13747 Montfort Dr., Suite 250
Dallas, Texas 75240
Dave McEvilly 50,000 0.71%
13747 Montfort Dr., Suite 250
Dallas, Texas 75240
Ron Howard 450,000 6.42%
13747 Montfort Dr., Suite 250
Dallas, Texas 75240
All Officers and Directors as a 4,165,000 59.42%
group (7 persons)
________________________
(1) Calculated pursuant to Rule 13d-3(d) of the Securities Exchange Act of
1934. Unless otherwise stated below, each such person has sole voting
and investment power with respect to all such shares. Under Rule 13d-
3(d), shares not outstanding which are subject to options, warrants,
rights or conversion privileges exercisable within 60 days are deemed
outstanding for the
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<PAGE>
purpose of calculating the number and percentage owned by such person,
but are not deemed outstanding for the purpose of calculating the
percentage owned by each other person listed.
(2) Mr. Yotty is the beneficial owner of options to purchase 300,000
shares of Common Stock.
(3) Mr. Bedri is the beneficial owner of options to purchase 300,000
shares of Common Stock.
(4) Mr. Chambas is the beneficial owner of options to purchase 300,000
shares of Common Stock.
(5) Mr. Rothell may be deemed the beneficial owner of 300,000 shares of
Common Stock although pursuant to his employment agreement he receives
his shares over the next year and a half.
(6) Mr. Cook may be deemed the beneficial owner of 300,000 shares of
Common Stock although pursuant to his employment agreement he receives
his shares over the next year and a half.
(7) Ms. Crothers may be deemed the beneficial owner of 60,000 shares of
Common Stock.
CHANGES IN CONTROL
There are no understandings, arrangements or agreements known by
management at this time which would result in a change in control of the
Company.
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<PAGE>
ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS.
The following persons are our Executive Officers and Directors:
Name Age Position
- ---- --- --------
William D. Yotty 52 Director, Chairman of the Board
William Bedri 60 Director and Secretary
Jim Chambas 44 Director
Jeff Rothell 36 President and Chief Executive Officer
Garth Cook 34 Chief Financial Officer and Treasurer
Maya Crothers 32 Director of Business Development of NVT
Dave McEvilly 38 Vice-President of Information Technology of NVT
WILLIAM D. YOTTY, CHAIRMAN OF THE BOARD Mr. Yotty has been Chairman
of the Board of Directors and a Director of the Company since August 13,
1998. Mr. Yotty was one of the original pioneers in the privately owned
and operated pay telephone industry. After deregulation in 1985, he served
as a consultant to the private pay telephone industry. Since 1989, Mr.
Yotty has been the CEO and a major shareholder of Quantum Network Services,
which owns and operates private pay telephones and markets long-distance
voice and data services, internet access, and cellular services. Mr. Yotty
is also currently the CEO & Chairman, and a major shareholder of PayStar
Communications Corporation. Quantum Network Services may be
deemed affiliates of ours. Several of the companies to which Mr. Yotty is
an affiliate may also compete with the Company now, or in the future, in
the Internet telephony business. Mr. Yotty holds 1,605,000 shares of
Common Stock and options to acquire 300,000 additional shares.
WILLIAM BEDRI, DIRECTOR, SECRETARY Mr. Bedri has been a Director of
the Company since August 13, 1998 and the Secretary since January 2000.
Mr. Bedri has 25 years of experience in sales and marketing management in
the telecommunications and computer industries. In 1995, Mr. Bedri joined
Brooks Fiber Communication as Director of National Accounts for Resale
Services, Western Region. In 1988, Mr. Bedri joined ComSystems as Branch
Manager of the Los Angeles and San Fernando Valley offices. In 1984, Mr.
Bedri joined Digital Computer Graphic (DCG) as partner and Vice President
of Sales and Marketing. DCG sold graphic design computers to the
architectural and building industries in the United States. Mr. Bedri spent
10 years with Western Union in marketing and sales management for Telex and
TWX services. Mr. Bedri received a Bachelor of Science Degree from Rutgers
University in 1976. Several of the companies to which Mr. Bedri is an
affiliate may also compete with the Company now, or in the future, in the
Internet telephony business. Mr. Bedri holds 400,000 shares of Common
Stock and options to acquire 300,000 additional shares.
JAMES CHAMBAS, DIRECTOR Mr. Chambas has been the Secretary and a
Director of the Company since August 13, 1998. Mr. Chambas has been
involved in the telecommunications industry since 1984. He has owned
Central Valley Communications since 1988, which currently owns and manages
pay telephones, and contracts operator assisted calling to the California
resort hospitality industry. He also is the CEO of Nationwide Hospitality,
Inc., which provides operator
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<PAGE>
assisted services to the pay telephone and hotel and resort vacation
industries nationwide; with over 3,500 pay telephones and resorts under
contract. Mr. Chambas is also a major shareholder, the Secretary/Treasurer
and a Director of PayStar Communications Corporation. Nationwide
Hospitality, Inc. may be deemed an affiliate of ours. Several of the
companies to which Mr. Chambas is an affiliate may also compete with the
Company now, or in the future, in the Internet telephony business. Mr.
Chambas holds 550,000 shares of Common Stock and options to acquire 300,000
additional shares.
JEFF ROTHELL, PRESIDENT AND CEO Mr. Rothell has been NVT's President
and the Chief Executive Officer since August 1, 1999 and the Company's
President since January 2000. Mr. Rothell has 15 years of operations and
marketing experience in telecommunications companies. From 1989 to 1997,
Mr. Rothell served as president of Security Telecom Corp. (a $20 million
corporation). In 1997 he partnered in the sale of Security Telecom to
Evercom Inc., which became the largest inmate telephone provider in the
United States with $225 million in annual revenue in 1998, retaining
Security Telecom as the corporate hub for a venture capital roll-up of the
correctional institution telecommunications business. Mr. Rothell's
experience encompasses planning, design, development and management,
operations management, operational integration of merger & acquisitions,
sales and marketing, product management and software design and
development. Several of the companies to which Mr. Rothell is an affiliate
may also compete with the Company now, or in the future, in the Internet
telephony business. Mr. Rothell holds 300,000 shares of Common Stock and
no options to acquire any additional shares.
GARTH COOK, CFO, TREASURER Mr. Cook has been the Chief Financial
Officer and Treasurer since August 1, 1999. Mr. Cook is a Certified Public
Accountant with separate bachelor's degrees in finance and accounting from
University of New Orleans, awarded in 1998. He previously worked for
Deloitte and Touche LLP where he specialized in the audits of publicly
traded companies. In 1993, he left Deloitte and Touche to become regional
controller for Chemfix Technologies Inc. where he was responsible for the
completion of public filings and budgets. In 1994, Cook joined the
telecommunications industry as CFO of a company focusing on international
arbitrage and prepaid calling services which was sold in 1998. He has
extensive experience in the telecommunications industry from financial,
sales and operational perspectives, and extensive experience in the public
markets. Several of the companies to which Mr. Cook is an affiliate may
also compete with the Company now, or in the future, in the Internet
telephony business. Mr. Cook beneficially owns 300,000 shares of Common
Stock and no options.
MAYA CROTHERS, DIRECTOR OF BUSINESS DEVELOPMENT OF NVT Ms. Crothers
has been Director of Business Development of our subsidiary NVT since
August 15, 1999. Ms. Crothers earned her undergraduate degree in
Mechanical Engineering and International Studies from the University of
Michigan and went on to join Westinghouse Electric's Power Generation
Business Unit. In 1993 she became the Regional Sales Engineer for the
Houston office where she negotiated over $100 million in power equipment
sales and was awarded the Westinghouse Market Leader Award for Sales &
Marketing efforts. She completed her masters in business administration at
the Wharton Business School in 1996, when she began work as a consultant to
Bain & Company until becoming a full time employee of the Company. Ms.
Crothers has experience in several industries and a variety of initiatives
including marketing and sales strategies, engineering and process design,
acquisition feasibility, and due diligence, complexity reduction, customer
loyalty and supplier management. Several of the companies to which Ms.
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<PAGE>
Crothers is an affiliate may also compete with the Company now, or in the
future, in the Internet telephony business. Ms. Crothers holds 60,000
shares of Common Stock and no options to acquire additional shares.
DAVE MCEVILLY, VICE-PRESIDENT OF INFORMATION TECHNOLOGY OF NVT. Mr.
McEvilly has been Vice-President of Information Technology of our
subsidiary NVT since August 15, 1999. Mr. McEvilly has numerous
certificates in Computer Science and has an extensive background in network
and data. From 1989-1991, Mr. McEvilly served as the Software
Configuration Manager for Intellicall's Vending Department where he oversaw
all service installation and support and configuration management for call
routing and billing. In 1991, he became the Director of Software for ATMC.
In 1993 Mr. McEvilly joined Security Telecom as Director of Information
Services to develop the LEMS (Law Enforcement Management Systems) product
and was responsible for product development, video imaging and digital
solutions for the Corrections Industry. In 1997, when Security Telcom was
purchased by Evercom, Inc., Mr. McEvilly was responsible for all corporate
infrastructure, WAN connectivity, data management, application and
development management for back office systems, integrating technologies
across 14 acquisitions and management of 150 local areas of LEMS. Several
of the companies to which Mr. McEvilly is an affiliate may also compete
with the Company now, or in the future, in the Internet telephony business.
Mr. McEvilly holds 50,000 shares of Common Stock and no options to acquire
additional shares.
BOARD OF DIRECTORS AND COMMITTEES OF THE BOARD
Our Articles of Incorporation, as amended, provide that the number of
members of our Board of Directors shall be not less than one and not more
than nine. Our current number of Directors is three. At each annual
meeting of stockholders, all Directors' terms expire and successors are
elected to hold office for a term of one year, until their respective
successors are elected and qualified. All of the officers of the Company
serve at the discretion of our Board of Directors.
We intend to establish an audit committee, a compensation committee
and a technology committee. It is anticipated the non-employee,
independent member of the compensation committee will be Mr. Chambers and
employee members will be Messrs. Bedri and Cook. The non-employee,
independent member of the audit committee will be Mr. Chambas, assisted by
Mr. Garth Cook, as our Chief Financial Officer, and the members of the
technology committee will be Messrs. Bedri, Jeff Rothell and David
McEvilly. The audit committee will oversee the retention, performance and
compensation of the independent public accountants, and the establishment
and oversight of such systems of internal accounting and auditing control
as it deems appropriate. The compensation committee will review and
approve the compensation of our executive officers, including payment of
salaries, bonuses and incentive compensation, determine our compensation
policies and programs, and administer our stock option plans. The
technology committee will review and evaluate current technology as it
relates to the Company's business. We anticipate that we will add
additional independent members to our Board and the committees during the
upcoming fiscal year.
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<PAGE>
INDEMNIFICATION OF DIRECTORS AND EXECUTIVE OFFICERS AND LIMITATION OF LIABILITY
Our Articles of Incorporation contain a provision designed to limit
directors' liability to the extent permitted by the Nevada General
Corporation Law. Specifically, directors will not be held liable to us or
our stockholders for monetary damages for any breach of fiduciary duty as
a director, except for liability as a result of:
* any breach of the duty of loyalty to us or our stockholders;
* actions or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
* payment of an improper dividend or improper repurchase of our
stock under the Nevada General Corporation law; or
* actions or omissions pursuant to which the director received an
improper personal benefit.
The principal effect of the limitation of liability provision is that
a stockholder is unable to prosecute an action for monetary damages against
a director of ours, unless the stockholder can demonstrate one of the
specified bases for liability. The provision, however, does not eliminate
or limit director liability arising in connection with causes of action
brought under the federal or state securities laws. Further, the articles
of incorporation do not eliminate a director's duty of care. The inclusion
of this provision in the certificate of incorporation may discourage or
deter stockholders or management from bringing a lawsuit against directors
for a breach of their fiduciary duties, even though such an action, if
successful, might otherwise have benefited us and our stockholders. This
provision should not affect the availability of equitable remedies such as
injunction or rescission based upon a director's breach of the duties of care.
The bylaws also provide that we will indemnify our directors and
officers, and may indemnify any of our employees and agents, to the fullest
extent permitted by Nevada law. We are generally required to indemnify our
directors and officers for all judgments, fines, penalties, settlements,
legal fees and other expenses incurred in connection with pending,
threatened or completed legal proceedings because of the director's or
officer's position with us or another entity that the director or officer
serves at our request, subject to certain conditions, and to advance funds
to its directors and officers to enable them to defend against such
proceedings. The Board of Directors must affirmatively vote to invoke the
indemnification of an officer or director, but the bylaw provisions may
constitute a custodial obligation of the Company regardless of such vote.
Currently, the Company has no insurance to fund its indemnification
obligation.
At present, there is no pending or threatened litigation or proceeding
involving any Director or Officer, employee or agent of ours where such
indemnification will be required or permitted.
-43-
<PAGE>
ITEM 6. EXECUTIVE COMPENSATION.
SUMMARY COMPENSATION TABLE
The following table sets forth information regarding compensation paid
to our Chief Executive Officer and those other individuals who serve as
executive officers at the end of fiscal 1999 who earned in excess of
$100,000 as compensation for services rendered on our behalf.
<TABLE>
<CAPTION>
Annual Compensation Long Term Compensation Awards
--------------------------------------------------------------
Name Restricted All
And Stock Options/ Other
Principal Salary Bonus Award(s) SARs Compensation
Position Year(1) ($) ($) ($) (#) ($)(2)
- -------- ------ ------- ----- ------- ---- --------
<S> <C> <C> <C> <C> <C> <C>
Jeffrey W. Rothell, 1999 $78,000 $ 0 -0- -0- $1,200
President and Chief 1998 $ 0 $ 0 -0- -0- $ 0
Executive Officer 1997 $ 0 $ 0 -0- -0- $ 0
</TABLE>
________________________
(1) Mr. Rothell received 300,000 shares of Common Stock valued at $2.00 as
compensation in January 1999.
(2) The Company pays Mr. Rothell's health insurance of approximately $100
per month.
(3) No other Company executive will earn in excess of $100,000,
considering all forms of compensation, in the upcoming fiscal year
ending December 31, 2000.
COMPENSATION OF DIRECTORS
The Company had no arrangements pursuant to which any director of the
Company was compensated during the year ended December 31, 1999, for
services as a Director. All Directors are reimbursed for reasonable
expenses incurred in connection with their attendance at Board meetings.
Members of the Board of Directors have been granted options and have
received shares of our Common Stock as described elsewhere.
EMPLOYMENT CONTRACTS
In August 1999, the Company entered into one year employment
agreements with Mr. Jeffrey Rothell, our President and Chief Executive
Officer and Mr. Garth Cook, our Chief Financial Officer and Treasurer.
Each individual receives $78,000 per year in salary. In addition, each
received 50,000 shares of Common Stock upon signing of their agreements and
will each receive an additional 175,000 shares of Common Stock on January
1, 2000 with three (3) quarterly bonuses of 25,000 shares in March 2000,
June 2000 and January 2001. The Company also pays each individual's health
insurance.
STOCK OPTIONS
In January 1999, our Board of Directors issued to each Messrs. Yotty,
Bedri and Chambas 300,000 options to purchase our Common Stock exercisable
at $1.00 per share. The options are exercisable for five years.
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<PAGE>
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
We believe that all of the transactions set forth below were made on
an arms-length basis. All future transactions between us and our Officers,
Directors, Principal Stockholders and affiliates will be approved by a
majority of the Board of Directors, including a majority of outside
Directors, and will continue to be on terms no less favorable to us than
could be obtained from unaffiliated.
In August 1998, we entered into a Merger and Plan of Reorganization
with NVT, Inc. wherein we issued 3,000,000 shares of our Common Stock to
Messrs. Bedri, Chambas, Yotty and other shareholders of NVT, Inc. After
the merger, these individuals became Officers and Directors of the Company
and collectively own 2,555,000 shares of Common Stock.
In October 1998 and June 1999, we purchased two (2) long distance customer
bases from Quantum Communications, Inc. a company owned by Mr. William Yotty,
one of our Directors, for $110,000 and $60,000, respectively. Because of the
geographical location of the customer bases compared to our network, we
sold these bases to Nationwide Hospitality, Inc. ("Nationwide") in December
1999 for a total of $175,000 which consisted of cancellation of debt of
$137,000 and a note receivable for the balance of $38,000 payable March 31,
2000. Nationwide is owned by our Director Jim Chambas and as such, may be
deemed to be an affiliate. Due to the related nature of this transaction,
it may not be deemed to be as favorable as might be obtained in a non-
related transaction.
ITEM 8. DESCRIPTION OF SECURITIES.
AUTHORIZED CAPITAL STOCK
Our Articles of Incorporation, as amended, authorize shares of capital
stock consisting of:
* 50,000,000 shares of Preferred Stock, $0.001 par value; and
* 100,000,000 shares of Common Stock, $0.001 par value.
COMMON STOCK
The Company is authorized to issue up to 100,000,000 shares of Common
Stock, $0.001 par value. There are presently 6,073,300 shares of Common
Stock issued and outstanding or reserved to be issued to officers,
directors and employees. Additionally, there are 936,250 options to
purchase the Company's common stock at $1 per share. All shares of Common
Stock have equal voting rights and, when validly issued and outstanding,
have one vote per share in all matters to be voted upon by shareholders.
There are approximately 65 holders of record of the Company's Common Stock.
The shares of Common Stock have no preemptive, subscription,
conversion or redemption rights and may be issued only as fully paid and
non-assessable shares. Cumulative
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<PAGE>
voting in the election of directors is not allowed, which means that the
holders of a majority of the outstanding shares represented at any meeting
at which a quorum is present will be able to elect all of the directors if
they choose to do so and, in such event, the holders of the remaining
shares will not be able to elect any directors. On liquidation of the
Company, each common shareholder is entitled to receive a pro rata share of
the Company's assets available for distribution to common stockholders.
PREFERRED STOCK
Our Articles of Incorporation provides that we may issue up to
50,000,00 shares of Preferred Stock in one or more series as may be
determined by our Board of Directors who may establish the number of shares
to be included in each such series, fix the designation, powers,
preferences and relative rights of the shares of each such series and any
qualifications, limitations, or restrictions thereof, and increase or
decrease the number of shares of any such series without any vote or action
by the stockholders. The Board of Directors may authorize, without
stockholder approval, the issuance of preferred stock with voting and
conversion rights that could adversely affect the voting power and other
rights of holders of common stock. Preferred Stock could be issued quickly
with terms designated to delay or prevent a change in our control or to
make the removal of management more difficult. This could have the effect
of decreasing the market price of the Common Stock.
We believe that the ability of our Board to issue one or more series
of preferred stock will provide us with flexibility in structuring possible
future financings and acquisitions, and in meeting other corporate needs
that might arise. The authorized shares of Preferred Stock, as well as
shares of Common stock, will be available for issuance without action by
our stockholders, unless such action is required by applicable law or the
rules of any stock exchange or automated system on which our securities may
be listed or traded.
The Board could issue a series of preferred stock that could,
depending on the terms of such series, impede the completion of a merger,
tender offer or other takeover attempt. The Board will make any
determination to issue such shares based on its judgment as to our best
interests and the best interests of our stockholders. The Board could
issue preferred stock having terms that could discourage an acquisition
attempt through which an acquirer may be able to change the composition of
the Board, including a tender offer or other transaction that some, or a
majority, of our stockholders might believe to be in their best interests
or in which stockholders might receive a premium for their stock over the
then current market price.
DIVIDEND POLICY
Dividends are payable on Common Stock when, as, and if declared by the
Board of Directors out of funds legally available to pay dividends, subject
to any preferences which may be given to holders of preferred stock. The
Company has paid no cash dividends on its Common Stock to date and it does
not anticipate payment of cash dividends in the foreseeable future.
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<PAGE>
REPORTS TO SHAREHOLDERS
The Company is a publicly held company which, upon the effectiveness
of the Registration Statement, will file periodic reports, including Annual
Reports containing consolidated financial statements of the Company audited
by independent public accountants, and quarterly reports, which contain
unaudited financial statements, with the Securities and Exchange Commission.
STOCK TRANSFER AGENT AND WARRANT AGENT
The transfer agent for the Company's Common Stock is Interwest
Transfer Company, P.O. Box 17316, Salt Lake City, Utah 84117.
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<PAGE>
PART II
ITEM 1. MARKET PRICE AND DIVIDENDS ON THE REGISTRANT'S COMMON EQUITY AND
OTHER SHAREHOLDER MATTERS
MARKET INFORMATION
Our Common Stock only began trading on the Over the Counter Bulletin
Board during February 1999. Accordingly, there is insufficient market
history to establish or identify any trend in the market for the Common Stock.
The following table sets forth the high and low bid prices for our
Common Stock for the past nine months. The quotations reflect inter-dealer
prices, with retail mark-up, mark-down or commissions, and may not
represent actual transactions. The information presented has been obtained
from the OTCBB.com, a website maintained by OTC Bulletin Board(R) (OTCBB).
High Low
Bid Bid
--- ---
1999 Fiscal Year
----------------
First Quarter . . . . . . . . . . . . . $5.50 $1.00
Second Quarter . . . . . . . . . . . . $4.50 $2.50
Third Quarter . . . . . . . . . . . . . $3.63 $1.69
On January 4, 2000, the last reported bid and asked prices for the Common
Stock were $8.28 and $8.53, respectively.
HOLDERS
As of January 4, 2000, the Company had 65 holders of record of the
Company's Common Stock. We believe there to be additional beneficial
owners of our Common Stock held in "street name" or their broker's accounts
for their benefit. Although there is a trading market for our stock, it is
lightly traded, there is no substantial public float at the present time.
ITEM 2. LEGAL PROCEEDINGS
We are not currently a party to any legal proceedings, nor are we
aware of pending or threatened litigation.
ITEM 3. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS.
Not applicable.
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<PAGE>
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES.
During the past three years, the Registrant and its subsidiary NVT,
Inc. have issued their securities to the following persons for the cash or
other consideration indicated in transactions that were not registered
under the Securities Act of 1933 (the "1933 Act").
I.
In August 1998, the Registrant entered into a Merger and Plan of
Reorganization where it acquired all of the issued and outstanding shares
of NVT, Inc. and issued a total of 3,000,000 shares of Common Stock to six
(6) individuals, three (3) of which are current Officers and Directors.
The share exchange was made pursuant to the exemption provided by Section
4(2) of the 1933 Act and Rule 506 of Regulation D promulgated thereunder.
II.
In August 1998, the Company issued 200,000 shares of its "restricted"
Common Stock to Mezzanine Capital Limited ("Mezzanine") for 40,000 of their
shares and certain financial advisory services which included locating the
public "shell" into which NVT, Inc. was ultimately merged and structuring
the transaction. Further, in August 1998, Mezzanine was issued an
additional 300,000 shares of Common Stock for continuing services. This
issuance was pursuant to the exemption from registration provided by
Section 4(2) of the 1933 Act. Mezzanine represented that it purchased the
securities for investment, and all certificates issued were impressed with
a restrictive legend advising that the shares represented by the
certificates may not be sold, transferred, pledged or hypothecated without
having first been registered or the availability of an exemption from
registration established. No commissions were paid and no broker/dealer
was involved in this transaction.
III.
In April 1999, the Registrant issued 493,250 shares of Common Stock at
$2.00 to forty-one (41) individuals. The Registrant claims the exemption
from registration provided by Section 4(2) of the Securities Act of 1933,
as amended (the "1933 Act") and Rule 504 pursuant to Regulation D adopted
thereunder. Sales commissions of 10% were paid in connection with the
sale of the shares.
IV.
From January 1998 to December 1999, the Registrant's subsidiary NVT,
Inc. has issued from time to time, a series of promissory notes to certain
"accredited investors" and non-accredited investors. The issuance of NVT,
Inc.'s notes to the 64 noteholders was made in reliance upon the exemption
from registration provided by Section 4(2) of the 1933 Act and/or
Regulation D and Rule 506 adopted thereunder. A total of 16 noteholders
are non-accredited and forty-eight are accredited as defined pursuant to
Rule 501 of regulation D. Sales commissions of 10% were paid in connection
with the sale of the notes. All purchasers represented by way of
subscription agreements, that they
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<PAGE>
purchased the securities for investment, and all certificates issued to the
purchasers were impressed with a restrictive legend advising that the
shares represented by the certificates may not be sold, transferred,
pledged or hypothecated without having first been registered or the
availability of an exemption from registration established. These
purchasers who have renewed their notes have received updated information
from the Registrant and executed amended subscription agreements.
ITEM 5. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Articles of Incorporation and the Bylaws of the Company, filed as
Exhibits 3.1 and 3.2, respectively, provide that the Company will indemnify
its Officers and Directors for costs and expenses incurred in connection
with the defense of actions, suits, or proceedings where the Officer or
Director acted in good faith and in a manner he reasonably believed to be
in the Company's best interest and is a party by reason of his status as an
Officer or Director, absent a finding of negligence or misconduct in the
performance of duty.
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<PAGE>
NetVoice Technologies Corporation
TABLE OF CONTENTS
PAGE
----
Independent Auditor's Report F-1
Audited and Unaudited Financial Statements
Balance Sheet F-2
Statement of Operations F-3 & F-4
Statement of Cash Flow F-5
Statement of Shareholders Equity F-6
Notes to the Financial Statements F-7
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<PAGE>
NetVoice Technologies Corporation
(A Development Stage Company)
Consolidated Financial Statements
December 31, 1998
& September 30, 1999 (Unaudited)
<PAGE>
Independent Auditor's Report
----------------------------
Board of Directors
NetVoice Technologies Corporation
(A Development Stage Company)
I have audited the accompanying consolidated balance sheets of NetVoice
Technologies Corporation, (a development stage company), as of December 31,
1998, and the related statements of operations, stockholders' equity, and
cash flows for the period January 7, 1998 (Inception) to December 31, 1998.
These consolidated financial statements are the responsibility of the
Company's management. My responsibility is to express an opinion on these
financial statements based on my audit.
I conducted my audit in accordance with generally accepted auditing
standards. Those standards require that I plan and perform the audit to
obtain reasonable assurance about whether the consolidated financial
statements are free of material misstatements. 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 the significant estimates made by
management, as well as evaluating the overall consolidated financial
statements presentation. I believe that my audit provides a reasonable
basis for my opinion.
In my opinion, the aforementioned consolidated financial statements present
fairly, in all material respects, the financial position of NetVoice
Technologies Corporation, (a development stage company), as of December 31,
1998, and the results of its operations and its cash flows for the period
January 7, 1998 (Inception) to December 31, 1998, in conformity with
generally accepted accounting principles.
The accompanying consolidated financial statements have been prepared
assuming NetVoice Technologies Corporation, (a development stage company),
will continue as a going concern. As discussed in Note #10 to the
consolidated financial statements, the Company has an accumulated deficit
and a negative net worth at December 31, 1998. These factors raise
substantial doubt about the Company's ability to continue as a going
concern. Management's plans in regard to these matters are also discussed
in Note #10. The consolidated financial statements do not include any
adjustments that might result from the outcome of this uncertainty.
/s/ SCHVANEVELDT & COMPANY
Salt Lake City, Utah
December 15, 1999
<PAGE>
NetVoice Technologies Corporation
(A Development Stage Company)
Consolidated Balance Sheets
September 30, 1999 (Unaudited) & December 31, 1998
<TABLE>
<CAPTION>
(Unaudited)
September December
30, 1999 31, 1998
---------- ----------
<S> <C> <C>
Assets
Current Assets
- --------------
Cash & Cash Equivalents $ 46,267 $ 7,990
Accounts Receivable - Trade 128,517 75,068
Prepaid Expenses 1,000 6,063
Cash In Trust - Restricted -0- 167,100
----------- -----------
Total Current Assets 175,784 256,221
Property & Equipment
- --------------------
Office Equipment 11,268 8,160
Computers & Telephone Equipment 1,605,450 701,989
----------- -----------
Total Property & Equipment 1,616,718 710,149
Less Accumulated Depreciation (236,793) (28,293)
----------- -----------
Net Property & Equipment 1,379,925 681,856
Other Assets
- ------------
Vendor Security Deposits 87,523 72,208
Investments 200 200
Customer Base List 112,220 101,666
----------- -----------
Total Other Assets 199,943 174,074
----------- -----------
Total Assets $ 1,755,652 $ 1,112,151
=========== ===========
</TABLE>
The accompanying notes are an integral part of these financial statements
3
<PAGE>
NetVoice Technologies Corporation
(A Development Stage Company)
Consolidated Balance Sheets -Continued-
September 30, 1999 (Unaudited) & December 31, 1998
<TABLE>
<CAPTION>
(Unaudited)
September December
30, 1999 31, 1998
---------- ----------
<S> <C> <C>
Liabilities & Stockholders' Equity
Current Liabilities
- -------------------
Accounts Payable $ 693,865 $ 426,161
Accrued Salaries -0- 12,625
Accrued Taxes 26,874 23,791
Accrued Interest Payable 56,095 27,152
Notes Payable 2,843,090 1,669,337
Stockholders' Loans 136,672 164,972
Capital Lease Current Maturities 383,931 117,081
----------- -----------
Total Current Liabilities 4,140,527 2,441,119
Long Term Liabilities
- ---------------------
Capital Leases Payable 463,439 69,399
----------- -----------
Total Liabilities 4,603,966 2,510,518
Commitments & Contingencies
- ---------------------------
Stockholders' Equity
- --------------------
Preferred Stock; 50,000,000 Shares Authorized
at $0.001 Par Value, None Issued
Stock to be Issued 702 -0-
Common Stock 100,000,000 Shares Authorized
at $.001 Par Value; 5,333,300 & 4,495,050
Shares Issued & Outstanding Respectively 5,333 4,495
Paid In Capital 2,244,964 320,505
Unearned Compensation (702,500) -0-
Deficit Accumulated in the Development Stage (4,396,813) (1,723,367)
----------- -----------
Total Stockholders' Equity (2,848,314) (1,398,367)
----------- -----------
Total Liabilities & Stockholders' Equity $ 1,755,652 $ 1,112,151
=========== ===========
</TABLE>
The accompanying notes are an integral part of these financial statements
4
<PAGE>
NetVoice Technologies Corporation
(A Development Stage Company)
Consolidated Statements of Operations
Accumulated for the Period January 7, 1998 to September 30, 1999 (Unaudited)
For the Period January 1, 1999 to September 30, 1999 (Unaudited) &
the Period January 7, 1998 (Inception) to September 30, 1998 (Unaudited) &
the Period January 7, 1998 (Inception) to December 31, 1998
<TABLE>
<CAPTION>
Accumulated
January 7, January 1, January 7, January 7,
1998 to 1999 to 1998 to 1998 to
September September September December
30, 1999 30, 1999 30, 1998 31, 1998
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Revenues
- --------
Sales $ 727,422 $ 606,685 $ 4,169 $ 120,737
----------- ----------- ----------- -----------
Expenses
- --------
Direct Expenses 1,244,922 992,728 63,780 252,194
General & Administrative Expenses 2,407,442 1,573,893 536,988 833,549
----------- ----------- ----------- -----------
Total Expenses 3,652,364 2,566,621 600,768 1,085,743
----------- ----------- ----------- -----------
Net Operating Loss (2,924,942) (1,959,936) (596,599) (965,006)
Other Income (Expenses)
- -----------------------
Finders Fees (150,000) -0- (150,000) (150,000)
Interest Income 7,555 4,015 1,580 3,540
Interest Expense (1,089,626) (717,525) (212,014) (372,101)
Valuation Loss on Investment (239,800) -0- -0- (239,800)
----------- ----------- ----------- -----------
Other Income (Expenses) (1,471,871) (713,510) (360,434) (758,361)
----------- ----------- ----------- -----------
Net Loss ($4,396,813) ($2,673,446) ($ 957,034) ($1,723,367)
=========== =========== =========== ===========
Basic & Diluted Loss Per Share ($ 0.52) ($ 0.31) ($ 0.48)
Weighted Average Shares
Outstanding 5,180,349 3,112,410 3,623,032
</TABLE>
The accompanying notes are an integral part of these financial statements
5
<PAGE>
NetVoice Technologies Corporation
(A Development Stage Company)
Statements of Stockholders' Equity
For the Period June 30, 1998 (Inception) to December 31, 1998
and the Period January 1, 1999 to September 30, 1999 (Unaudited)
<TABLE>
<CAPTION>
Deficit
Common Stock Accumulated
-------------------------------------- In the
Stock to To be Unearned Paid In Development
be Issued Shares Issued Amount Compensation Capital Stage
------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance,
June 30, 1998 - -0- - $ -0- $ - $ -0- $ -0-
Shares Issued to
Incorporators for
Cash at $0.003
Per Share - 3,000,000 - 3,000 - 7,000 -
Shares Issued for
"Reverse Takeover"
of Blue Pine, Inc., - 995,050 - 995 - ( 995) -
Shares Issued for
Investment in
Mezzanine Capital,
LTD., at $1.20
Per Share - 200,000 - 200 - 239,800 -
Shares Issued for
Services at $0.25
Per Share - 300,000 - 300 - 74,700 -
Net Loss for the
Period Ended
December 31, 1998 - - - - - - (1,723,367)
------------------------------------------------------------------------------
Balance,
December 31, 1998 - 4,495,050 - 4,495 - 320,505 (1,723,367)
Shares Issued to
Officers & Directors
at $0.39 Per Share - 370,000 - 370 - 144,630 -
Shares Sold as Part
of Private Placement
Memorandum at $1.94
Per Share - 493,250 - 493 - 958,007 -
</TABLE>
The accompanying notes are an integral part of these financial statements
6
<PAGE>
NetVoice Technologies Corporation
(A Development Stage Company)
Statements of Stockholders' Equity -Continued-
For the Period June 30, 1998 (Inception) to December 31, 1998
and the Period January 1, 1999 to September 30, 1999 (Unaudited)
<TABLE>
<CAPTION>
Deficit
Common Stock Accumulated
------------------------------------- In the
Stock to To be Unearned Paid In Development
be Issued Shares Issued Amount Compensation Capital Stage
--------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Shares Returned - (145,000) - ( 145) - 145 -
Shares to be Issued
to Employees at
$1.00 Per Share 702,500 - 702 - ( 702,500) 701,797 -
- 120,000 - 120 - 119,880 -
Net Loss Nine
Months Period Ended
September 30, 1999 (2,673,446)
-------------------------------------------------------------------------------
Balance,
September 30, 1999 702,500 5,333,300 $ 702 $ 5,333 ($ 702,500) $ 2,244,964 ($4,396,813)
===============================================================================
</TABLE>
The accompanying notes are an integral part of these financial statements
7
<PAGE>
NetVoice Technologies Corporation
(A Development Stage Company)
Statements of Cash Flows
Accumulated for the Period January 7, 1998 to September 30, 1999 (Unaudited) &
For the Period January 1, 1999 to September 30, 1999 (Unaudited) &
the Period January 7, 1998 (Inception) to September 30, 1998 (Unaudited) &
the Period January 7, 1998 (Inception) to December 31, 1998
<TABLE>
<CAPTION>
Accumulated
January 7, January 1, January 7, January 7,
1998 to 1999 to 1998 to 1998 to
September September September December
30, 1999 30, 1999 30, 1998 31, 1998
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Cash Flows from Operating Activities
- ------------------------------------
Net Loss ($4,396,813) ($2,673,446) ($ 957,033) ($1,723,367)
----------- ----------- ----------- -----------
Adjustments to Reconcile Net Loss
to Net Cash Used by Operating
Activities:
Evaluation Loss 239,800 -0- -0- 239,800
Depreciation & Amortization 294,573 257,946 11,700 36,627
Expense Paid by Stock in Lieu
of Cash 75,000 -0- 75,000 75,000
Stock Issued to Employees,
Officers & Directors 265,000 265,000 -0- -0-
Changes in Operating Assets &
Liabilities:
(Increase) Decrease in Accounts
Receivable ( 128,517) ( 53,449) ( 3,600) ( 75,068)
(Increase) Decrease in Prepaid
Expenses ( 1,000) 5,063 -0- ( 6,063)
(Increase) in Security Deposits ( 87,523) ( 15,315) ( 9,094) ( 72,208)
Increase (Decrease) in Accounts
Payable 693,865 267,704 24,493 426,161
Increase (Decrease) in Accrued
Expenses 82,969 19,401 35,697 63,568
----------- ----------- ----------- -----------
Net Cash Provided (Used) by
Operating Activities ( 2,962,646) ( 1,927,096) ( 822,837) ( 1,035,550)
Cash Flows from Investing Activities
- ------------------------------------
Purchase of Office Furniture ( 11,268) -0- -0- ( 8,160)
Purchase of Computers &
Telephone Equipment ( 1,605,450) ( 906,569) ( 361,556) ( 701,989)
Purchase of Customer Base List ( 170,000) ( 60,000) -0- ( 110,000)
----------- ----------- ----------- -----------
Net Cash Flows (Used) by
Investing Activities ( 1,786,718) ( 966,569) ( 361,556) ( 820,149)
</TABLE>
The accompanying notes are an integral part of these financial statements
8
<PAGE>
NetVoice Technologies Corporation
(A Development Stage Company)
Statements of Cash Flows -Continued-
Accumulated for the Period January 7, 1998 to September 30, 1999 (Unaudited) &
For the Period January 1, 1999 to September 30, 1999 (Unaudited) &
the Period January 7, 1998 (Inception) to September 30, 1998 (Unaudited) &
the Period January 7, 1998 (Inception) to December 31, 1998
<TABLE>
<CAPTION>
Accumulated
January 7, January 1, January 7, January 7,
1998 to 1999 to 1998 to 1998 to
September September September December
30, 1999 30, 1999 30, 1998 31, 1998
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Cash Flows from Financing Activities
- ------------------------------------
Sale of Common Stock $ 968,500 $ 958,500 $ 10,000 $ 10,000
Increase in Notes Payable 4,512,426 2,843,089 1,515,909 1,874,337
Payments on Notes Payable ( 1,669,337) ( 1,669,337) -0- ( 205,000)
Increase in Stockholders' Loans 136,672 ( 28,300) 24,651 164,972
Increase in Capital Leases 847,370 660,890 39,675 186,480
Increase in Telecom Clearing
Trust, Inc. -0- 167,100 ( 151,590) ( 167,100)
----------- ----------- ----------- -----------
Net Cash Provided (Used) by
Financing Activities 4,795,631 2,931,942 1,438,645 1,863,689
----------- ----------- ----------- -----------
Increase In Cash & Equivalents 46,267 38,277 254,252 7,990
Cash & Equivalents at
Beginning of Period -0- 7,990 -0- -0-
----------- ----------- ----------- -----------
Cash & Equivalents at End
of Period $ 46,267 $ 46,267 $ 254,252 $ 7,990
=========== =========== =========== ===========
Disclosures from Operating Activities
- -------------------------------------
Interest $ 1,089,626 $ 717,525 $ 212,014 $ 372,101
Taxes -0- -0- -0- -0-
Significant Non-Cash Transactions
- ---------------------------------
Issued 200,000 Shares of Common
Stock To Acquire 40,000 Shares
of Mezzanine Capital, LTD., at
$6.00 Per Share $ 240,000 $ -0- $ 240,000 $ 240,000
Issued 300,000 Shares of Common
Stock For Services at Par Value 75,000 -0- 75,000 75,000
Issued 490,000 Shares to
Employees, Officers, and
Directors in Lieu of
Compensation 265,000 265,000 -0- -0-
Reserved 702,500 Shares for
Issuance to Officers & Employees
for Future Compensation -0- -0- -0- -0-
</TABLE>
The accompanying notes are an integral part of these financial statements
9
<PAGE>
NetVoice Technologies Corporation
(A Development Stage Company)
Notes to Financial Statements
NOTE #1 - Corporate History
- ---------------------------
NetVoice Technologies Corporation, (the Company) was incorporated on June
16, 1977 under the laws of the state of Nevada, using the name, Eastco,
Inc. On December 8, 1997, a Certificate of Amendment was filed changing
the name to Blue Pines, Inc. On August 11, 1998, a Certificate of
Amendment was filed changing the name to NetVoice Technologies Corporation.
Pursuant to an Agreement and Plan of Reorganization dated July 16, 1998,
the Company's shareholders exchanged on a share for share basis all of the
outstanding shares of the Company for shares in NETVOICE TECHNOLOGIES,
INC., a privately held Nevada Corporation. Following the exchange NETVOICE
TECHNOLOGIES, INC., became a wholly owned subsidiary of the Company.
NETVOICE TECHNOLOGIES, INC., is the successor to Netvoice Technologies,
LLC, a Texas Limited Liability Company, formed January 7, 1998. The
Corporation was formed under the laws of the state of Nevada on June 30, 1998.
The purpose of the Company is to engage in any lawful business activity
that is authorized by the Board of Directors. The Company is now building
out a voice over the Internet network and is marketing the use of its
network to its wholesale and commercial customers.
The Company is considered to be a development stage company.
NOTE #2 - Significant Accounting Policies
- -----------------------------------------
A. The Company uses the accrual method of accounting.
B. Revenues and directly related expenses are recognized in the period
when the services are provided to the customer.
C. The Company considers all short term, highly liquid investments that
are readily convertible, within three months, to known amounts as cash
equivalents. The Company currently has no cash equivalents.
D. Basic Earnings Per Shares are computed by dividing income available to
common stockholders by the weighted average number of common shares
outstanding during the period. Diluted Earnings Per Share shall be
computed by including contingently issuable shares with the weighted
average shares outstanding during the period. When inclusion of the
contingently issuable shares would have an antidilutive effect upon
earnings per share no diluted earnings per share shall be presented.
E. Depreciation: The cost of property and equipment is depreciated over
the estimated useful lives of the related assets. The cost of
leasehold improvements is amortized over the lesser of the length of
the lease of the related assets or the estimated lives of the assets.
Depreciation and amortization is computed on the straight line method.
F. Estimates: The preparation of the financial statements in conformity
with generally accepted accounting principles requires management to
make estimates and assumptions that affect the amounts reported in the
financial statements and accompanying notes. Actual results could
differ from those estimates.
10
<PAGE>
NetVoice Technologies Corporation
(A Development Stage Company)
Notes to Financial Statements -Continued-
NOTE #2 - Significant Accounting Policies -Continued-
- -----------------------------------------------------
G. Consolidation Policy: The accompanying consolidated financial
statements include the accounts of the Company and all of its wholly
owned and majority-owned subsidiaries. Intercompany transactions and
balances have been eliminated in consolidation.
H. Income Taxes: Income tax expense includes federal and state taxes
currently payable and deferred taxes arising from temporary
differences between income for financial reporting and income tax
purposes.
I. New Technical Pronouncements: In February 1997, SFAS No. 129,
"Disclosure of Information about Capital Structure" was issued
effective for periods ending after December 15, 1997. The Company has
adopted the disclosure provisions of SFAS No. 129 effective with the
fiscal year ended December 31, 1998.
In June 1997, SFAS No. 130, "Reporting Comprehensive Income" was
issued effective for fiscal years beginning after December 31, 1997,
with earlier application permitted. The Company has elected to adopt
SFAS No. 130 effective with the fiscal year ended December 31, 1998.
Adoption of SFAS No. 130 did not have a material impact on the
Company's financial statements.
In June 1997, SFAS No. 131, "Disclosures about Segments of an
Enterprise and Related Information" was issued for fiscal year
beginning after December 31, 1997, with earlier application permitted.
The Company has elected to adopt SFAS No. 131, effective with the
fiscal years ended December 31, 1998. Adoption of SFAS No. 131 did
not have a material impact on the Company's financial statements.
NOTE #3 - Reverse Acquisition
- -----------------------------
Pursuant to a Plan and Agreement of Reorganization dated July 16, 1998,
NETVOICE TECHNOLOGIES, INC., a Nevada Corporation, (the legal acquiree) and
Blue Pines, Inc., a Nevada Corporation, (the legal acquirer) exchanged
common stock to give the shareholders of the legal acquiree control of the
legal acquirer.
Shareholders of the legal acquiree surrendered 100% of the outstanding
shares (3,000,000 shares) in exchange for 3,000,000 shares of the legal
acquirer.
Following the exchange the shareholders of the legal acquiree held
3,000,000 shares of the 3,995,050 issued shares of the legal acquirer (75.09%).
On August 11, 1998, Blue Pines, Inc., the legal acquirer, filed a
Certificate of Amendment with the Secretary of State, of the state of
Nevada, changing its name to NetVoice Technologies Corporation.
The merger of a private operating Company, (NETVOICE TECHNOLOGIES, INC.)
into a non-operating public shell corporation (Blue Pines, Inc.), with no
assets or liabilities resulted in the shareholders of the private company
having actual operating control of the combined company after the
transaction, and the shareholders of the former public shell continuing
only as passive investors.
11
<PAGE>
NetVoice Technologies Corporation
(A Development Stage Company)
Notes to Financial Statements -Continued-
NOTE #3 - Reverse Acquisition -Continued-
- -----------------------------------------
This transaction is considered to be a capital transaction in substance,
rather than a business combination. That is, the transaction is equivalent
to the issuance of stock by the private company for the net monetary assets
of the shell corporation, accompanied by a recapitalization. The
accounting is identical to that resulting from a reverse acquisition,
except no goodwill or other intangible is recorded.
APB No., 16, paragraph 70 states that, "Presumptive evidence of the
acquiring corporation in combinations effected by an exchange of stock is
obtained by identifying the former common stockholder interest of a
combined company which either retains or receives the larger portion of the
voting rights of the combined corporation. That corporation should be
treated as the acquirer unless other evidence clearly indicates that
another corporation is the acquirer."
Staff accounting Bulletin Topic 2A affirms the above principle and gives
guidelines that the post reverse-acquisition comparative historical
financial statements furnished for the legal acquirer should be those of
the legal acquiree.
NOTE #4 - Statement Presentation
- --------------------------------
The financial statements as herewith presented are the consolidated
financial statements of NetVoice Technologies Corporation (Parent) and
NETVOICE TECHNOLOGIES, INC., (Subsidiary). All of the consolidated
operations occurred in NETVOICE TECHNOLOGIES, INC.
NETVOICE TECHNOLOGIES, INC., is the successor to Netvoice Technologies,
LLC. When NETVOICE TECHNOLOGIES, INC., was formed on June 30, 1998, it
assumed all assets and liabilities of the LLC.
NOTE #5 - Property and Equipment and Depreciation Expenses
- ----------------------------------------------------------
The Company capitalized the purchase of equipment for major purchases in
excess of $500 per item. Capitalized amounts are depreciated over the
estimated useful life of the assets as follows:
Estimated
Property & Equipment Useful Life
-----------------------------------------------------------
Furniture & Equipment 3 to 10 Years
Property and equipment at cost are as follows:
Furniture & Equipment $ 8,160
Computer & Telephone Equipment 701,989
----------
Total Cost 710,149
Less Accumulated Depreciation ( 28,293)
----------
Net Book Value 681,856
==========
Depreciation and Amortization Expenses $ 28,293
==========
12
<PAGE>
NetVoice Technologies Corporation
(A Development Stage Company)
Notes to Financial Statements -Continued-
NOTE #6 - Short Term & Long Term Debt
- -------------------------------------
The Company has the following short term and long term debt:
Short Term Debt
- ---------------
Thirty Eight (38) Notes Secured by a Perfected
Security Interest in revenues from contracts,
title documents of the equipment and a cash reserve
equal to 10% of total notes payable. The Notes bear
interest at a rate of 13.35% per annum payable on the
first day of each quarter during the term. All
principal and unpaid accrued interest is due and
payable in nine (9) months from the date of the
issuance. The Payee has the right to extend the
term of the Notes for an additional nine (9) months
at the same terms. $ 1,669,337
Stockholders' loans; original loan $164,972 less
$81,500 paid, no interest. 164,972
Current Maturities of Capital Leases 117,081
-----------
Total Short Term Debt $ 1,951,390
===========
Long Term Debt
- --------------
Capital lease for telephone equipment 18 payments of
$6,596. $ 126,138
Capital lease for telephone equipment, 24 payments
of $2,390. 56,908
Capital lease for office copier thirty-six (36)
payments of $123.08; equipment cost $3,700, amount
remaining to be paid. $ 3,434
-----------
Total Due on Long Term Capital Leases 186,480
Less Current Maturities ( 117,081)
-----------
Balance $ 69,399
===========
Debt Service Requirements
- -------------------------
Year Ended Total
---------- -----------
1999 1,951,390
2000 68,166
2001 1,233
-----------
Total $ 2,020,789
===========
13
<PAGE>
NetVoice Technologies Corporation
(A Development Stage Company)
Notes to Financial Statements -Continued-
NOTE #7 - Taxes
- ---------------
The Company accounts for income taxes in accordance with SFAS No., 109,
Accounting for Income Taxes, which requires an asset and liability approach
to financial accounting and reporting for income taxes. Deferred income
tax assets and liabilities are computed annually for differences between
the financial statement and tax bases of assets and liabilities that will
result in taxable or deductible amounts in the future based on enacted tax
laws and rates applicable to the periods in which the differences are
expected to affect taxable income. Valuation allowances are established
when necessary to reduce deferred tax assets to the amount expected to be
realized. Income tax expenses is the tax payable or refundable for the
period plus or minus the change during the period in deferred tax assets
and liabilities.
From January 7, 1998 to June 30, 1998 the Company operated as a Limited
Liability Company (LLC). On June 30, 1998, the Company filed Articles of
Incorporation in the state of Nevada and continued its business activities
as a Corporation. The financial statements have been prepared using the
entity approach, that is, representing activities from January 7, 1998
through December 31, 1998. For income tax purposes the Company will be
required to file a partnership return for the period when it operated as an
LLC and a corporate tax return for the period it was a corporation. The
financial statements reflect a net operating loss for the period $1,723,367
of which $320,243 is the loss for the period of LLC operations. The
Corporation therefore had a loss of $1,403,124 for net operating loss
carryforwards.
The Company has net operating losses to carryforward for future tax
purposes as follows:
Year of Loss Amount of Loss Expiration Date
------------ -------------- ---------------
1998 $ 1,403,124 2018
Net deferred taxes in the accompanying balance sheets include the following
components as of December 31, 1998:
Deferred Tax Asset
Net Operating Loss Carryforward ($ 477,062)
Valuation Allowance 477,062
-----------
Net Deferred Tax Asset $ -0-
===========
Current Tax Expense $ -0-
===========
The Company has established the valuation allowance at 100% of maximum
federal tax benefit because it is uncertain if the net loss carryforwards
will result in tax asset benefits.
14
<PAGE>
NetVoice Technologies Corporation
(A Development Stage Company)
Notes to Financial Statements -Continued-
NOTE #8 - Trust Indenture and Trustee
- -------------------------------------
Pursuant to a Trust Indenture, NETVOICE TECHNOLOGIES, INC., and its
predecessor Netvoice Technologies, LLC, has issued short term, 13.35%
secured notes (see Note #6). The parties to the Indenture Agreement are
NETVOICE TECHNOLOGIES, INC., (Issuer) and Telecom Clearing Trust, Inc.,
(Trustee). Telecom Clearing Trust, Inc., is the Attorney in fact of the
respective holders of the notes made pursuant to the Indenture Agreement
and the exclusive representation of the Issuer.
The aggregated principal amount of the notes which may be authenticated and
delivered under the Indenture is limited to Five Million Dollars
($5,000,000) of which 1,669,367 has been issued through December 31, 1998.
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of the Issuer's 13.35% Secured
Notes collateralized by revenues from contracts with interconnect exchange
carriers for resale and transmission of calls the title documents to
Internet Servers and other types of electronic equipment necessary for
these operations, a ten percent (10%) cash operating reserve, all past and
future claims, demands causes chooses in action in respect of any or all
of the foregoing, including all proceeds of the conversion, voluntary or
involuntary, into cash or other liquid property, all cash proceeds,
accounts, accounts receivable, notes, drafts, acceptances, chattel paper,
checks, deposits accounts, insurance proceeds, condemnation awards, rights
to payment of any and every kind and other forms of obligations and
receivables, instruments and other property which at any time constitute
all or part of or are included in the proceeds of any of the foregoing.
At December 31, 1998, Telecom Clearing Trust, Inc., held for the benefit of
NETVOICE TECHNOLOGIES, INC., $168,024 from the proceeds of the notes.
Pursuant to the trust indenture $167,100, 10% of the notes balance is
restricted in its usage by the Company. The remaining $924 is available to
the Company for current operating capital.
NOTE #9 - Stockholders' Equity
- ------------------------------
Preferred Stock:
The Company is authorized to issue 50,000,000 shares of Preferred
Stock with a par value of $0.001 per share in one or more series as
may be determined by the Board of Directors. The Board of Directors
may fix the designation, power, preference and relative rights of the
shares of each series and any qualifications, limitations, or
restrictions thereof, and increase or decrease the number of shares of
any series without stockholders' approval or action by the
stockholders. The Board of Directors may authorize, without
stockholders' approval, the issuance of Preferred Stock with voting
rights and conversion rights that could adversely affect the voting
power and other rights of the common stock.
15
<PAGE>
NetVoice Technologies Corporation
(A Development Stage Company)
Notes to Financial Statements -Continued-
NOTE #9 - Stockholders' Equity
- ------------------------------
Common Stock:
The total authorized stock of the Corporation is 100,000,000 shares of
common stock, with a par value of $0.001. All stock when issued shall
be deemed fully paid and non-assessable. No cumulative voting on any
matter to which stockholders shall be entitled to vote, shall be
allowed for any purposes. Shareholders have no pre-emptive rights to
acquire unissued shares of stock of the Corporation.
Stock Spilt:
Pursuant to the Agreement and Plan of Reorganization the shares of
Blue Pines, Inc., were split as a 1 for 3 reverse split. Post split
shares of Blue Pines, Inc., were 995,050. Retroactive restatement had
been made to effect the shares outstanding and the earnings per share
are based upon post split shares.
Common Stock Issued for Services and Other Non-Cash Transactions:
The Company issued 200,000 shares of common stock to acquire 40,000
shares of Mezzanine Capital, LTD. See Note #12.
The Company issued 300,000 shares of common stock at par value to two
providers of promotional service and investment banking services. The
value of the services provided was $75,000.
Deficit Accumulated in the Development Stage:
The Company is considered to be a development stage company.
Operations have not produced significant revenues and expenditures
for operating expenses exceed revenues by $1,723,367. This amount is
considered to be the deficit accumulated during the development stage.
Stock Based Compensation
In August/September 1999, the Company issued 120,000 shares of common
stock to key employees. The average market price in the issue period
was $1.875. The stock was restricted to its marketability and the
trading volume was relatively small. The Company applied a 12.75%
discount to the issued shares for financial risk and liquidity and a
34% discount for lack of marketability. The Company valued the shares
at $1.00 per share and booked compensation expenses of $120,000.
In September 1999, the Company granted 702,500 shares of common stock
to key employees, subject to certain company recall privileges based
on the following vesting schedules;
456,250 shares to vest in the first calendar quarter of 2000,
73,750 shares to vest in the second calendar quarter of 2000,
73,750 shares to vest in the third calendar quarter of 2000,
23,750 shares to vest in the fourth calendar quarter of 2000,
75,000 shares to vest in the first calendar quarter of 2001,
The Company recorded $702,500 as unearned compensation expense in the
applicable vesting period. The Company will adjust the value of the
unearned compensation charged to compensation expense in each vesting
period as the factors of financial risk and liquidity change.
16
<PAGE>
NetVoice Technologies Corporation
(A Development Stage Company)
Notes to Financial Statements -Continued-
NOTE #10 - Going Concern
- ------------------------
The accompanying financial statements of NetVoice Technologies Corporation,
have been prepared on a going-concern basis, which contemplates profitable
operations and the satisfaction of liabilities in the normal course of
business. There are uncertainties that raise substantial doubt about the
ability of the Company to continue as a going concern. As shown in the
statements of operations, the Company has not yet achieved profitable
operations. As of December 31, 1998, the Company has insufficient working
capital and a deficit stockholders' equity. These items raise substantial
doubt about the ability of the Company to continue as a going concern.
The Company is presently preparing a placement memorandum to issue shares
of its common stock to provide working capital for future growth and
development.
The Company's continuation as a going concern is dependent upon its ability
to satisfactorily meet its debt obligations, meet its product development
goals, secure new financing and generate sufficient cash flows from
operations. The financial statements do not include any adjustments that
might result from outcome of these uncertainties.
NOTE #11 - Lease Obligations
- ----------------------------
The Company conducts its operations in leased facilities and has entered
into leases for office space. The future minimum lease payments under the
operating lease as of December 31, 1998 are as follows:
Years Ending Lease
December 31, Amount
------------ -----------
1999 $ 75,623
2000 104,340
2001 26,085
-----------
Total $ 206,048
===========
NOTE #12 - Investments
- ----------------------
On October 27, 1998, the Company issued 200,000 shares of its common stock,
restricted, to acquire 40,000 shares of common stock of Mezzanine Capital,
LTD., a Bermuda Corporation. The stock of Mezzanine is trading on the
Bermuda exchange and was valued at its bid price of $6.00 per share.
At December 31, 1998, the Company wrote the investment down to the par
value of the shares issued because there had been no activity in the sale
of the stock and its market value was unknown.
17
<PAGE>
NetVoice Technologies Corporation
(A Development Stage Company)
Notes to Financial Statements -Continued-
NOTE #13 - Customer Base
- ------------------------
In October 1998, the Company purchased a customer base for $110,000. The
base will be used by the Company in its long distance and other marketing
efforts and the Company estimates its useful life as two years. The
Company has recognized $8,334 as amortization expense in 1998. The
President of Quantum Network Services, Inc., the seller of the customer
list, is also an officer of the Company.
NOTE #14 - Subsequent Events
- ----------------------------
Carrier Service Agreement Sales
The Company has signed Carrier Service Agreement Contracts with two
long distance carriers. These one year contracts generally provide
that the long distance carriers are to receive the right of first
refusal for circuit usage made available in each new geographical
market. The contracts encompass six cities and a minimum of seventeen
circuits.
Private Offering of Common Stock
The Company sold pursuant to a private offering 500,000 shares of its
common stock at $2.00 per share. From January 18, 1999 through April
30, 1999 the Company sold 493,250 shares for gross proceeds of $986,500.
Issuance of Options
In January 1999, the Company issued Options to Purchase 300,000 shares
each, to three of its Directors. The Options to Purchase common stock
are exercisable at $1.00 per share over a period for five years from
the date of issuance.
NOTE #15 - Commitments & Contingencies
- --------------------------------------
The Company has signed an Agreement with e.Spire(TM) Communications, Inc.,
for telephone related services. The Agreement requires the Company to pay
minimum monthly charges of $750 and a non-recurring charge of $1,000.
Should the Company terminate the Agreement without cause it would be
subject to early termination penalty of charges equal to the number of
months remaining in the Agreement term multiplied by the monthly rate of
service payable within ten days of termination.
The Company has signed an Agreement with Brooks Fiber Communications of
NVT, Inc., for telephone and Internet related services for services
commencing April 1998 and continuing for a two year term, recurring
charges are $3,531 monthly. If the Company terminates the Agreement
without cause it would be subject to a penalty of 50% of the recurring
charge multiplied by the remaining months of the contract.
The Company has an Agreement with GTE for Internet services commencing in
July 1998 for a one year period. The recurring costs are $544, or a total
of $3,777. If the Company terminates the Contract without cause it will be
subject to a penalty of 50% of all remaining recurring costs for the
Agreement term.
18
<PAGE>
NetVoice Technologies Corporation
(A Development Stage Company)
Notes to Financial Statements -Continued-
NOTE #15 - Commitments & Contingencies -Continued-
- --------------------------------------------------
The Company has also signed Carrier Service Agreements with three of its
customers to provide "OP Long Haul and Local Termination" service for a one
year period. All carrier service agreements signed in 1998 expire in
November 1999.
In 1999, the Legal Acquirer, Blue Pines, Inc., was involved in the gold
mining industry, the extent of the mining activity was to acquire a mineral
lease, which was subsequently abandoned due to lack of lease payments and
exploration activity. The applicable statute of limitations has expired
and no claims have been made against Blue Pines, Inc. The Company believes
it unlikely that any contingent claims will be made against the Company.
19
<PAGE>
PART III
ITEMS 1 AND 2. INDEX AND DESCRIPTION TO EXHIBITS
The Exhibits listed below are filed as part of this Registration
Statement.
Exhibit
Number Description
- ------ -----------
3.1 Articles of Incorporation of Eastco, Inc. dated June 16, 1977
3.2 Certificate of Amendment of Articles of Incorporation of
Eastco, Inc. dated December 8, 1997
3.3 Certificate of Amendment of Articles of Incorporation of Blue
Pines, Inc. dated August 11, 1998
3.4 Bylaws of NetVoice Technologies Corporation
3.5 Amendments to Bylaws of NetVoice Technologies Corporation
3.6 Certificate of Correction
3.7 Second Amended and Restated Articles of Incorporation of
NetVoice Technologies Corporation
10.1 Agreement and Plan of Reorganization
10.2 Memorandum of Understanding between NetVoice Technologies, Inc.
and MultiCom Services
10.3 Memorandum of Understanding between NetVoice Technologies, Inc.
and Diversified Data Distributors
10.4 Agreement between NetVoice Technologies, Inc. and Interwest
Transfer Co., Inc.
10.5 Broker Agreement between NetVoice Technologies, Inc. and
Unlimited Tech, Inc.
10.6 Carrier Service Agreement between NetVoice Technologies, Inc.
and IDT Corporation
10.7 Carrier Service Agreement between NetVoice Technologies, Inc.
and IDS Long Distance, Inc.
10.8 Carrier Service Agreement between NetVoice Technologies, Inc.
and Intercomm Americas, Inc.
10.9 Internet Telephony Service Agreement between NetVoice
Technologies, Inc. and Intercomm Americas, Inc.
10.10 Carrier Service Agreement between NetVoice Technologies, Inc.
and JD Services, Incorporated
<PAGE>
10.11 Carrier Service Agreement between NetVoice Technologies, Inc.
and SuperNet
10.12 Carrier Service Agreement between NetVoice Technologies, Inc.
and ValuLine, Inc.
10.13 Telecommunications Service Agreement between NetVoice
Technologies, Inc. and Brooks Fiber Communications
10.14 Carrier Service Agreement between NetVoice Technologies, Inc.
and CapRock Communications
10.15 Letter of Agreement between NetVoice Technologies Corporation
and Duncan & Hill, LLC
10.16 Agreement between NetVoice Technologies, Inc. and Frontier
Communications
10.17 Agreement between NetVoice Technologies, Inc. and Electric
Lightwave, Inc.
10.18 Agreement between NetVoice Technologies, Inc. and GTE
Internetworking
10.19 Software License and Support Agreement between NetVoice
Technologies, Inc. and Portal Software, Inc.
10.20 Master Lease Agreement between NetVoice Technologies, Inc. and
Sunrise Leasing Corporation (Cisco Systems)
10.21 Addendum to Master Lease Agreement (AA) between NetVoice
Technologies, Inc. and Sunrise Leasing Corporation (Cisco
Systems)
10.22 Addendum to Master Lease Agreement (AB) between NetVoice
Technologies, Inc. and Cisco Systems Capital Corporation
10.23 Addendum to Master Lease Agreement (AC) between NetVoice
Technologies, Inc. and Sunrise Leasing Corporation (Cisco Systems)
10.24 Addendum to Master Lease Agreement (AD) between NetVoice
Technologies, Inc. and Sunrise Leasing Corporation (Cisco Systems)
10.25 Addendum to Master Lease Assignment (AE) between NetVoice
Technologies, Inc. and Sunrise Leasing Corporation (Cisco Systems)
10.26 Addendum to Master Lease Agreement (AF) between NetVoice
Technologies, Inc. and Sunrise Leasing Corporation (Cisco Systems)
10.27 Lease Agreement between NetVoice Technologies, LLC and Inter-Tel
Leasing, Inc.
10.28 Network Agreement between NetVoice Technologies, Inc. and
Inter-Tel.net, Inc.
10.29 Master Services Agreement with Signup Server, Inc.
10.30 Office Lease and First Amendment thereto
10.31 Employment Agreement with Jeff Rothell
10.32 Employment Agreement with Garth Cook
<PAGE>
21 Subsidiaries of the Company
24.1 Consent of Schvanevedt & Company
27.1 Financial Data Schedule
<PAGE>
SIGNATURES
In accordance with Section 12 of the Securities Exchange Act of 1934, the
registrant caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized.
NETVOICE TECHNOLOGIES CORPORATION
By: /s/ JEFFREY ROTHELL
---------------------------------
Jeffrey Rothell, President, Chief
Executive Officer
In accordance with the requirements of the Securities Exchange Act of
1933, this registration statement was signed by the following persons in
the capacities and on the dates stated.
Signatures Title Date
---------- ----- ----
/s/ JEFFREY ROTHELL President, Chief Executive January 18, 2000
- ----------------------- Officer (Principal Executive
Jeffrey Rothell Officer)
/s/ GARTH COOK Chief Financial Officer January 18, 2000
- ----------------------- (Principal Financial and
Garth Cook Accounting Officer)
/s/ WILLIAM D. YOTTY Chairman of the Board January 18, 2000
- -----------------------
William D. Yotty
/s/ JAMES CHAMBAS Director January 18, 2000
- -----------------------
James Chambas
/s/ WILLIAM BEDRI Director and Secretary January 18, 2000
- -----------------------
William Bedri
<PAGE>
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES OF SMALL
BUSINESS ISSUERS
Under Section 12(b) or (g) of the Securities Exchange Act of 1934
NETVOICE TECHNOLOGIES CORPORATION
---------------------------------
(Name of small business issuer in its charter)
Nevada 91-1986538
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
13747 MONTFORT DRIVE, SUITE 250
DALLAS, TX 75240
-------------------------------------------------
(Address of principal executive offices) (Zip Code)
Issuer's telephone number: (972) 788-2988
----------------
EXHIBIT INDEX
-------------
Exhibit Page Number in
No. Document Sequentially Numbered System
- ------- -------- ----------------------------
3.1 Articles of Incorporation of Eastco, Inc. dated June 16, 1977
3.2 Certificate of Amendment of Articles of Incorporation of
Eastco, Inc. dated December 8, 1997
3.3 Certificate of Amendment of Articles of Incorporation of
Blue Pines, Inc. dated August 11, 1998
3.4 Bylaws of NetVoice Technologies Corporation
3.5 Amendments to Bylaws of NetVoice Technologies Corporation
3.6 Certificate of Correction
3.7 Second Amended and Restated Articles of Incorporation of
NetVoice Technologies Corporation
<PAGE>
10.1 Agreement and Plan of Reorganization
10.2 Memorandum of Understanding between NetVoice Technologies, Inc.
and MultiCom Services
10.3 Memorandum of Understanding between NetVoice Technologies, Inc.
and Diversified Data Distributors
10.4 Agreement between NetVoice Technologies, Inc. and Interwest
Transfer Co., Inc.
10.5 Broker Agreement between NetVoice Technologies, Inc. and
Unlimited Tech, Inc.
10.6 Carrier Service Agreement between NetVoice Technologies, Inc.
and IDT Corporation
10.7 Carrier Service Agreement between NetVoice Technologies, Inc.
and IDS Long Distance, Inc.
10.8 Carrier Service Agreement between NetVoice Technologies, Inc.
and Intercomm Americas, Inc.
10.9 Internet Telephony Service Agreement between NetVoice
Technologies, Inc. and Intercomm Americas, Inc.
10.10 Carrier Service Agreement between NetVoice Technologies, Inc.
and JD Services, Incorporated
10.11 Carrier Service Agreement between NetVoice Technologies, Inc.
and SuperNet
10.12 Carrier Service Agreement between NetVoice Technologies, Inc.
and ValuLine, Inc.
10.13 Telecommunications Service Agreement between NetVoice
Technologies, Inc. and Brooks Fiber Communications
10.14 Carrier Service Agreement between NetVoice Technologies, Inc.
and CapRock Communications
10.15 Letter of Agreement between NetVoice Technologies
Corporation and Duncan & Hill, LLC
10.16 Agreement between NetVoice Technologies, Inc. and Frontier
Communications
10.17 Agreement between NetVoice Technologies, Inc. and Electric
Lightwave, Inc.
10.18 Agreement between NetVoice Technologies, Inc. and GTE
Internetworking
10.19 Software License and Support Agreement between NetVoice
Technologies, Inc. and Portal Software, Inc.
10.20 Master Lease Agreement between NetVoice Technologies, Inc.
and Sunrise Leasing Corporation (Cisco Systems)
10.21 Addendum to Master Lease Agreement (AA) between NetVoice
Technologies, Inc. and Sunrise Leasing Corporation (Cisco Systems)
<PAGE>
10.22 Addendum to Master Lease Agreement (AB) between NetVoice
Technologies, Inc. and Cisco Systems Capital Corporation
10.23 Addendum to Master Lease Agreement (AC) between NetVoice
Technologies, Inc. and Sunrise Leasing Corporation (Cisco Systems)
10.33 Addendum to Master Lease Agreement (AD) between NetVoice
Technologies, Inc. and Sunrise Leasing Corporation (Cisco Systems)
10.34 Addendum to Master Lease Assignment (AE) between NetVoice
Technologies, Inc. and Sunrise Leasing Corporation (Cisco Systems)
10.35 Addendum to Master Lease Agreement (AF) between NetVoice
Technologies, Inc. and Sunrise Leasing Corporation (Cisco Systems)
10.36 Lease Agreement between NetVoice Technologies, LLC and
Inter-Tel Leasing, Inc.
10.37 Network Agreement between NetVoice Technologies, Inc. and
Inter-Tel.net, Inc.
10.38 Master Services Agreement with Signup Server, Inc.
10.39 Office Lease and First Amendment thereto
10.40 Employment Agreement with Jeff Rothell
10.41 Employment Agreement with Garth Cook
21 Subsidiaries of the Company
24.1 Consent of Schvanevedt & Company
27.1 Financial Data Schedule
EXHIBIT 3.1
ARTICLES OF INCORPORATION
OF
EASTCO, INC.
For the purpose of forming this corporation under the laws of the
State of Nevada, the undersigned incorporators hereby state:
ARTICLE FIRST
Name
----
The name of the corporation is:
Eastco, Inc.
ARTICLE SECOND
Purposes and Duration
---------------------
The purposes for which the corporation is formed are:
(a) To engage in any lawful business activity from time to
time authorized or approved by the board of directors of
this corporation;
(b) To act as principal, agent, partner or joint venturer or
in any other legal capacity in any transaction;
(c) To do business anywhere in the world; and
(d) To have and exercise all rights and powers from time to
time granted to a corporation by law.
The above purpose clauses shall not be limited by reference to or
inference from one another, but each purpose clause shall be construed as
a separate statement conferring independent purposes and powers upon the
corporation.
The duration of this corporation shall be perpetual.
<PAGE>
ARTICLE THIRD
Location
--------
The county in the State of Nevada where the principal office for the
transaction of the business of the corporation is located in the County
of Clark, and the address of the principal office is: 3890 South Swenson,
Suite 100, Las Vegas, Nevada, 89109.
ARTICLE FOURTH
Directors
---------
The number of directors of the corporation is three until changed by
an amendment of these Articles of Incorporation or a by-law duly adopted
by the shareholders of the corporation.
ARTICLE FIFTH
Names of First Directors and Incorporators
------------------------------------------
The names and addresses of the persons who are appointed to act as
first directors of the corporation, who are also the incorporators, are:
Joseph R. Laird, Jr.
3890 South Swenson, Suite 100
Las Vegas, Nevada 89109
Kenneth J. Fisher
3890 South Swenson, Suite 100
Las Vegas, Nevada 89109
Patricia J. Laird
3890 South Swenson, Suite 100
Las Vegas, Nevada 89109
ARTICLE SIXTH
Stock
-----
The corporation is authorized to issue only one class of stock,
which shall be designated Capital Stock.
-2-
<PAGE>
The total number shares of Capital Stock that the corporation is
authorized to issue is 100,000 shares. The aggregate par value of all of
said shares is $25,000,000, and the par value of each such share is $0.25.
IN WITNESS WHEREOF, the undersigned Incorporators, who are also the
first directors of the corporation, have executed these Articles of
Incorporation on June 7, 1977.
/s/ JOSEPH R. LAIRD, JR.
------------------------------------
Joseph R. Laird, Jr.
/s/ KENNETH J. FISHER
------------------------------------
Kenneth J. Fisher
/s/ PATRICIA J. LAIRD
------------------------------------
Patricia J. Laird
-3-
<PAGE>
STATE OF CALIFORNIA )
) SS.
COUNTY OF LOS ANGELES )
On this 7th day of June, 1977, before me, the undersigned, a Notary
Public in and for the said County and State, residing therein, duly
commissioned and sworn, personally appeared Joseph R. Laird, Jr., Kenneth
J. Fisher, and Patricia J. Laird, known to me to be the persons whose
names are subscribed to the within Articles of Incorporation, and
acknowledged to me that they executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
OFFICIAL SEAL
K. EDWARD SMITH
NOTARY PUBLIC - CALIFORNIA /s/ K. EDWARD SMITH
------------------------------------
LOS ANGELES COUNTY Notary Public
My comm. expires SEP 21, 1980
16055 Ventura Bl., Ste. #625, Encino, Ca 91436
EXHIBIT 3.2
CERTIFICATE OF AMENDMENT
OF ARTICLES OF INCORPORATION
OF EASTCO, INC.
We the undersigned, Zen Merritt, President and Jim Valencia, Secretary of
Eastco, Inc., do hereby certify:
That the Board of Directors of said corporation at a meeting duly
convened, held on the 29th day of August, 1997 adopted a resolution to
amend the original articles as follows:
ARTICLE I WHICH PRESENTLY READS AS FOLLOWS:
ARTICLE FIRST
Name
----
The name of the corporation is: Eastco, Inc.
IS HEREBY AMENDED TO READ AS FOLLOWS:
The name of the corporation is: Blue Pines, Inc.
ARTICLE IV WHICH PRESENTLY READS AS FOLLOWS:
ARTICLE FOURTH
Directors
---------
The number of directors of the corporation is three until
changed by an amendment of these Articles of Incorporation or a
by-law duly adopted by the shareholders of the corporation.
IS HEREBY AMENDED TO READ AS FOLLOWS:
ARTICLE FOURTH
DIRECTORS
---------
The Directors are hereby granted the authority to do any
act on behalf of the Corporation as may be allowed by law. Any
action taken in good faith, shall be deemed appropriate and in
each instance where the Business Corporation Act provides that
the Directors may act in certain instances where the Articles
of Incorporation so authorize, such action by the Directors,
shall be deemed to exist in these Articles and the authority
granted by said Act shall be imputed hereto without the same
specifically having been enumerated herein.
The Board of Directors may consist of from one (1) to nine
(9) directors, as determined, from time to time, by the then
existing Board of Directors.
<PAGE>
ARTICLE VI WHICH PRESENTLY READS AS FOLLOWS:
ARTICLE SIXTH
Stock
-----
The corporation is authorized to issue only one class of
stock, which shall be designated Capital Stock.
The total number of shares of Capital Stock that the
corporation is authorized to issue is 100,000 shares. The
aggregate par value of all of said shares is $25,000.00, and
the par value of each such share is $0.25.
IS HEREBY AMENDED TO READ AS FOLLOWS:
ARTICLE VI
----------
AUTHORIZED CAPITAL STOCK
------------------------
The total authorized capital stock of the Corporation is
100,000,000 shares of Common Stock, with a par value of $0.001
(1 mil). All stock when issued shall be deemed fully paid and
non-assessable. No cumulative voting, on any matter to which
Stockholders shall be entitled to vote, shall be allowed for
any purpose.
The authorized stock of this corporation may be issued at
such time, upon such terms and conditions and for such
consideration as the Board of Directors shall, from time to
time, determine. Shareholders shall not have pre-emptive
rights to acquire unissued shares of the stock of this Corporation.
THE FOLLOWING NEW ARTICLES ARE HEREBY ADOPTED
---------------------------------------------
ARTICLE VII
COMMON DIRECTORS
As provide by Nevada Revised Statutes 78.140, without
repeating the section in full here, the same is adopted and no
contract or other transaction between this Corporation and any
of its officers, agents or directors shall be deemed void or
voidable solely for that reason. The balance of the provisions
of the code section cited, as it now exists, allowing such
transactions, is hereby incorporated into this Article as
though more fully set-forth, and such Article shall be read and
interpreted to provide the greatest latitude in its application.
<PAGE>
ARTICLE VIII
LIABILITY OF DIRECTORS AND OFFICERS
No Director, Officer or Agent, to include counsel, shall
be personally liable to the Corporation or its Stockholders for
monetary damage for any breach or alleged breach of fiduciary
or professional duty by such person acting in such capacity.
It shall be presumed that in accepting the position as an
Officer, Director, Agent or Counsel, said individual relied
upon and acted in reliance upon the terms and protections
provided for by this Article. Notwithstanding the foregoing
sentences, a person specifically covered by this Article, shall
be liable to the extent provided by applicable law, for acts or
omissions which involve intentional misconduct, fraud or a
knowing violation of law, or for the payment of dividends in
violation of NRS 78.300.
ARTICLE IX
ELECTION REGARDING NRS 78.378 - 78.3793 AND 78.411-78.444
This Corporation shall NOT be governed by nor shall the
provisions of NRS 78.378 through and including 78.3793 and NRS
78.411 through and including 78.444 in any way whatsoever
affect the management, operation or be applied in this
Corporation. These Articles may only be amended by a majority
vote of not less than 90% of the then issued and outstanding
shares of the Corporation. A quorum of outstanding shares for
voting on an Amendment to these articles shall not be met
unless 95% or more of the issued and outstanding shares are
present at a properly called and noticed meeting of the
Stockholders. The super-majority set-forth in these Articles
only applies to any attempted amendment to these Articles.
The number of shares of the corporation and entitled to vote on an
amendment to the Articles of Incorporation is 99,510; that the said
change(s) and amendment have been consented to and approved by a majority
vote of the stockholders holding at least a majority of each class of
stock outstanding and entitled to vote thereon.
/s/ ZEN MERRITT
------------------------------------
Zen Merritt
President
/s/ JIM VALENCIA
------------------------------------
Jim Valencia
Secretary/Treasurer
<PAGE>
State of Utah
County of Salt Lake
On Sept 1st 1997, personally appeared before me, a Notary Public, Zen
Merritt and Jim Valencia who acknowledged that they executed the above
instrument.
/s/ DENISE M. WILLIAMS
------------------------------------
Notary Public
Notary Public
DENISE M. WILLIAMS
172 West 5275 South
Murray, Utah 84107
My Commission Expires
February 21, 2000
State of Utah
EXHIBIT 3.3
CERTIFICATE OF AMENDMENT
BLUE PINES, INC.
A Nevada Corporation
The undersigned Jeff Larrabee, President and Shawni Larrabee,
Secretary of Blue Pines, Inc. hereby certify:
The shareholders of Blue Pines, Inc., through an Action of
Shareholders without a meeting and representing over 92% of the issued
and outstanding stock, adopted a resolution to amend and clarify the
Articles of Incorporation as follows:
ARTICLE I IS HEREBY AMENDED TO READ AS:
- ---------
ARTICLE I - NAME
----------------
The name of the Corporation shall be - NET VOICE TECHNOLOGIES CORPORATION
ARTICLE IX IS HEREBY AMENDED TO READ AS:
- ----------
ARTICLE IX
----------
ELECTION REGARDING NRS 78.378 - 78.3793 AND 78.411 - 78.444
The Corporation shall NOT be governed by nor shall the provisions of
NRS 78.378 through and including NRS 78.3793 and NRS 78.411 through and
including 78.444 in any way whatsoever affect the management, operation
or be applied in this Corporation. This Article may only be amended by a
majority vote of not less than 90% of the then issued and outstanding
shares of the Corporation. A quorum of outstanding shares for voting on
an Amendment to this Article shall not be met, unless 95% or more of the
issued and outstanding shares are present at a properly called and
noticed meeting of the Stockholders. The super-majority set-forth in
this Article only applies to any attempted amendment to this Article.
Dated this 17th day of July, 1998.
/s/ JEFF LARRABEE
------------------------------------
Jeff Larrabee, President
/s/ SHAWNI LARRABEE
------------------------------------
Shawni Larrabee, Secretary
Page 1 of 2
<PAGE>
Page 2
Certificate of Amendment
Blue Pines, Inc.
Notary Page
STATE OF UTAH )
)ss
COUNTY OF SALT LAKE )
On this the 17th day of July, 1998, Jeff Larrabee and Shawni
Larrabee, President and Secretary (respectively) of Blue Pines, Inc.,
personally appeared before me and executed the attached Certificate of
Amendment.
NOTARY PUBLIC /s/ JANAMARIE MCALLISTER
STATE OF UTAH ------------------------------------
My Commission Expires Janamarie McAllister
September 21, 1988
JANAMARIE MCALLISTER
1487 East Thisda Downs Dr.
Sandy, Utah 81092
Page 2 of 2
<PAGE>
CONSENT
The undersigned, president of NetVoice Technologies, Inc., a Nevada
corporation (the "Company"), on behalf of the Company hereby consents to
the use of the name "NetVoice Technologies Corporation" by Blue Pines,
Inc., a Nevada corporation.
Date: July 29, 1998
/s/ WILLIAM Bedri
------------------------------------
William Bedri, President
NetVoice Technologies, Inc.
State of Texas ) CANTHI ANN COOPER
) ss. Notary Public, State of Texas
County of Dallas ) My Commission Expires
November 20, 1999
On the 29th day of July 1998, personally appeared before me, a
Notary Public, William Bedri, the president of NetVoice Technologies,
Inc., a Nevada corporation, who acknowledged tat he had executed the
foregoing Consent.
/s/ CYNTHIA ANN COOPER
------------------------------------
NOTARY PUBLIC
EXHIBIT 3.4
BY-LAWS
OF
EASTCO, INC.
ARTICLE I - OFFICES
---------------------
The principal office of the corporation in the State of Nevada shall
be located in the state of Wyoming County of Natrona. The corporation
may have such other offices, either within or without the State of
incorporation as the board of directors may designate or as the business
of the corporation may from time to time require.
ARTICLE II - STOCKHOLDERS
---------------------------
1. ANNUAL MEETING.
The annual meeting of the stockholders shall be held on the last
week of August in each year, beginning with the year 1997 at the hour
10:00 o'clock A.M., for the purpose of electing directors and for the
transaction of such other business as may come before the meeting. If
the day fixed for the annual meeting shall be a legal holiday such
meeting shall be held on the next succeeding business day.
2. SPECIAL MEETINGS.
Special meetings of the stockholders, for any purpose or purposes,
unless otherwise prescribed by statute, may be called by the president or
by the directors, and shall be called by the president at the request of
the holders of not less than 75 per cent of all the outstanding shares of
the corporation entitled to vote at the meeting.
3. PLACE OF MEETING.
The directors may designate any place, either within or without the
State unless otherwise prescribed by statute, as the place of meeting for
any annual meeting or for any special meeting called by the directors. A
waiver of notice signed by all stockholders entitled to vote at a meeting
may designate
By-Laws 1
<PAGE>
any place, either within or without the state unless otherwise prescribed
by statute, as the place for holding such meeting. If no designation is
made, or if a special meeting be otherwise called, the place of meeting
shall be the principal office of the corporation.
4. NOTICE OF MEETING.
Written or printed notice stating the place, day and hour of the
meeting and, in case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than 30 nor more
than 60 days before the date of the meeting, either personally or by
mail, by or at the direction of the president, or the secretary, or the
officer or persons calling the meeting, to each stockholder of record
entitled to vote at such meeting. If mailed, such notice shall deemed to
be delivered when deposited in the United States mail, addressed to the
stockholder at his address as it appears on the stock transfer books of
the corporation, with postage thereon prepaid.
5. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE.
For the purpose of determining stockholders entitled to notice of or
to vote at any meeting of stockholders or any adjournment thereof, or
stockholders entitled to receive payment of any dividend, or in order to
make a determination of stockholders for any other proper purpose, the
directors of the corporation may provide that the stock transfer books
shall be closed for a stated period but not to exceed, in any case, 15
days. If the stock transfer books shall be closed for the purpose of
determining stockholders entitled to notice of or to vote at a meeting of
stockholders, such books shall be closed for at least 7 days immediately
preceding such meeting. In lieu of closing the stock transfer books, the
directors may fix in advance a date as the record date for any such
determination of stockholders, such date in any case to be not more than
15 days and, in case of a meeting of stockholders, not less than 3 days
prior to the date on which the particular action requiring such
determination of stockholders is to be taken. If the stock transfer
books are not closed and no record date is fixed for the determination of
stockholders entitled to notice of or to vote at a meeting of
stockholders, or stockholders entitled to receive payment of a dividend,
the date on which notice of the meeting is mailed or the date on which
the resolution of the directors declaring such dividend is adopted, as
the case may be, shall be the record date for such determination of
stockholders. When a determination of stockholders entitled to vote at
any meeting of stockholders
By-Laws 2
<PAGE>
has been made as provided in this section, such determination shall apply
to any adjournment thereof.
6. VOTING LISTS.
The officer or agent having charge of the stock transfer books for
shares of the corporation shall make, at last 14 days before each meeting
of stockholders, a complete list of the stockholders entitled to vote at
such meeting, or any adjournment thereof, arranged in alphabetical order,
with the address of and the number of shares held by each, which list,
for a period of 7 days prior to such meeting, shall be kept on file at
the principal office of the corporation and shall be subject to
inspection by any stockholder at any time during usual business hours.
Such list shall also be produced and kept open at the time and place of
the meeting and shall be subject to the inspection of any stockholder
during the whole time of the meeting. The original stock transfer book
shall be prima facie evidence as to who are the stockholders entitled to
examine such list or transfer books or to vote at the meeting of stockholders.
7. QUORUM.
At any meeting of stockholders 51% of the outstanding shares of the
corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of stockholders. If less than said
number of the outstanding shares are represented at a meeting, a majority
of the shares so represented may adjourn the meeting from time to time
without further notice. At such adjourned meeting at which a quorum
shall be present or represented, any business may be transacted which
might have been transacted at the meeting as originally notified. The
stockholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
8. PROXIES.
At all meetings of stockholders, a stockholder may vote by proxy
executed in writing by the stockholder or by his duly authorized attorney
in fact. Such proxy shall be filed with the secretary of the corporation
before or at the time of the meeting.
9. VOTING.
Each stockholder entitled to vote in accordance with the terms and
provisions of the certificate of incorporation and these by-laws shall be
entitled to one vote, in person or by
By-Laws 3
<PAGE>
proxy, for each share of stock entitled to vote held by such
stockholders. Upon the demand of any stockholder, the vote for directors
and upon any question before the meeting shall be by ballot. All
elections for directors shall be decided by plurality vote; all other
questions shall be decided by majority vote except as otherwise provided
by the Certificate of Incorporation or the laws of this State.
10. ORDER OF BUSINESS.
The order of business at all meetings of the stockholders, shall be
as follows:
1. Roll Call.
2. Proof of notice of meeting or waiver or notice.
3. Reading of minutes of preceding meeting.
4. Reports of Officers.
5. Reports of Committees.
6. Election of Directors.
7. Unfinished Business.
8. New Business.
11. INFORMAL ACTION BY STOCKHOLDERS.
Unless otherwise provided by law, any action required to be taken at
a meeting of the shareholders, or any other action which may be taken at
a meeting of the shareholders, may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by
all of the shareholders entitled to vote with respect to the subject
matter thereof.
By-Laws 4
<PAGE>
ARTICLE III - BOARD OF DIRECTORS
----------------------------------
1. GENERAL POWERS.
The business and affairs of the corporation shall be managed by its
board of directors. The directors shall in all cases act as a board, and
they may adopt such rules and regulations for the conduct of their
meetings and the management of the corporation, as they may deem proper,
not inconsistent with these by-laws and the laws of this State.
2. NUMBER, TENURE AND QUALIFICATIONS.
The number of directors of the corporation shall be one to nine (1-9).
Each director shall hold office until the next annual meeting of
stockholders and until his successor shall have been elected and qualified.
3. REGULAR MEETINGS.
A regular meeting of the directors, shall be held without other
notice that this by-law immediately after, and at the same place as, the
annual meeting of stockholders. The directors may provide, by
resolution, the time and place for the holding of additional regular
meetings without other notice than such resolution.
4. SPECIAL MEETINGS.
Special meetings of the directors may be called by or at the request
of the president or any two directors. The person or persons authorized
to call special meetings of the directors may fix the place for holding
any special meeting of the directors called by them.
5. NOTICE.
Notice of any special meeting shall be given at least ____ days
previously thereto by written notice delivered personally, or by telegram
or mailed to each director at his business address. If mailed, such
notice shall be deemed to be delivered when deposited in the United
States mail so addressed, with postage thereon prepaid. If notice be
given by telegram, such notice shall be deemed to be delivered when the
telegram is delivered to the telegraph company. The attendance of a
director at a meeting shall constitute a waiver of notice of such
meeting, except where a director attends a meeting for the express
purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened.
By-Laws 5
<PAGE>
6. QUORUM.
At any meeting of the directors 50 percent shall constitute a quorum
for the transaction of business, but if less than said number is present
at a meeting, a majority of the directors present may adjourn the meeting
from time to time without further notice.
7. MANNER OF ACTING.
The act of the majority of the directors present at a meeting at
which a quorum is present shall be the act of the directors.
8. NEWLY CREATED DIRECTORSHIPS AND VACANCIES.
Newly created directorships resulting from an increase in the number
of directors and vacancies occurring in the board for any reason except
the removal of directors without cause may be filled by a vote of a
majority of the directors then in office, although less than a quorum
exists. Vacancies occurring by reason of the removal of directors
without cause shall be filled by vote of the stockholders. A director
elected to fill a vacancy caused by resignation, death or removal shall
be elected to hold office for the unexpired term of his predecessor.
9. REMOVAL OF DIRECTORS.
Any or all of the directors may be removed for cause by vote of the
stockholders or by action of the board. Directors may be removed without
cause only by vote of the stockholders.
10. RESIGNATION.
A director may resign at any time by giving written notice to the
board, the president or the secretary of the corporation. Unless
otherwise specified in the notice, the resignation shall take effect upon
receipt thereof by the board or such officer, and the acceptance of the
resignation shall not be necessary to make it effective.
11. COMPENSATION.
No compensation shall be paid to directors, as such, for their
services, but by resolution of the board a fixed sum and expenses for
actual attendance at each regular or special meeting of the board may be
authorized. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor.
By-Laws 6
<PAGE>
12. PRESUMPTION OF ASSENT.
A director of the corporation who is present at a meeting of the
directors at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless his dissent shall be
entered in the minutes of the meeting or unless he shall file his written
dissent to such action with the person acting as the secretary of the
meeting before the adjournment thereof or shall forward such dissent by
registered mail to the secretary of the corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a
director who voted in favor of such action.
13. EXECUTIVE AND OTHER COMMITTEES.
The board, by resolution, may designate from among its members an
executive committee and other committees, each consisting of three or
more directors. Each such committee shall serve at the pleasure of the board.
By-Laws 7
<PAGE>
ARTICLE IV - OFFICERS
-----------------------
1. NUMBER.
The officers of the corporation shall be a president, a vice-president,
a secretary and a treasurer, each of whom shall be elected by
the directors. Such other officers and assistant officers as may be
deemed necessary may be elected or appointed by the directors.
2. ELECTION AND TERM OF OFFICE.
The officers of the corporation to be elected by the directors shall
be elected annual at the first meeting of the directors held after each
annual meting of the stockholders. Each officer shall hold office until
his successor shall have been duly elected and shall have qualified or
until his death or until he shall resign or shall have been removed in
the manner hereinafter provided.
3. REMOVAL.
Any officer or agent elected or appointed by the directors may be
removed by the directors whenever in their judgment the best interests of
the corporation would be served thereby, but such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
4. VACANCIES.
A vacancy in any office because of death, resignation, removal,
disqualification or otherwise, may be filled by the directors for the
unexpired portion of the term.
5. PRESIDENT.
The president shall be the principal executive officer of the
corporation and, subject to the control of the directors, shall in
general supervise and control all of the business and affairs of the
corporation. He shall, when present, preside at all meetings of the
stockholders and of the directors. He may sign, with the secretary or
any other proper officer of the corporation thereunto authorized by the
directors, certificates for shares of the corporation, any deeds,
mortgages, bonds, contracts, or other instruments which the directors
have authorized to be executed, except in cases where the signing and
execution thereof shall be expressly delegated by the directors or by
these by-laws to some other officer or agent of the corporation, or shall
be required by law to be otherwise signed or executed; and in general shall
By-Laws 8
<PAGE>
perform all duties incident to the office of president and such other
duties as may be prescribed by the directors from time to time.
6. VICE-PRESIDENT.
In the absence of the president or in event of his death, inability
or refusal to act, the vice-president shall perform the duties of the
president, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the president. The vice-president
shall perform such other duties as from time to time may be assigned to
him by the President or by the directors.
7. SECRETARY.
The secretary shall keep the minutes of the stockholders' and of the
directors' meetings in one or more books provided for that purpose, see
that all notices are duly given in accordance with the provisions of
these by-laws or as required, be custodian of the corporate records and
of the seal of the corporation and keep a register of the post office
address of each stockholder which shall be furnished to the secretary by
such stockholder, have general charge of the stock transfer books of the
corporation and in general perform all duties incident to the office of
secretary and such other duties as from time to time may be assigned to
him by the president or by the director.
8. TREASURER.
If required by the directors, the treasurer shall give a bond for
the faithful discharge of his duties in such sum and with such surety or
sureties as the directors shall determine. He shall have charge and
custody of and be responsible for all funds and securities of the
corporation; receive and give receipts for moneys due and payable to the
corporation from any source whatsoever, and deposit all such moneys in
the name of the corporation in such banks, trust companies or other
depositories as shall be selected in accordance with these by-laws and in
general perform all of the duties incident to the office of treasurer and
such other duties as from time to time may be assigned to him by the
president or by the directors.
9. SALARIES.
The salaries of the officers shall be fixed from time to time by the
directors and no officer shall be prevented from receiving such salary by
reason of the fact that he is also a director of the corporation.
By-Laws 9
<PAGE>
ARTICLE V - CONTRACTS, LOANS, CHECKS AND DEPOSITS
---------------------------------------------------
1. CONTRACTS.
The directors may authorize any officer or officers, agent or
agents, to enter into any contract or execute and deliver any instrument
in the name of and on behalf of the corporation, and such authority may
be general or confined to specific instances.
2. LOANS.
No loans shall be contracted on behalf of the corporation and no
evidences of indebtedness shall be issued in its name unless authorized
by a resolution of the directors. Such authority may be general or
confined to specific instances.
3. CHECKS, DRAFTS, ETC.
All checks, drafts or other orders for the payment of money, notes
or other evidences of indebtedness issued in the name of the corporation,
shall be signed by such officer or offices, agent or agents of the
corporation and in such manner as shall from time to time be determined
by resolution of the directors.
4. DIRECTORS.
All funds of the corporation not otherwise employed shall be
deposited from time to time to the credit of the corporation in such
banks, trust companies or other depositaries as the directors may select.
ARTICLE VI - CERTIFICATES FOR SHARES AND THEIR TRANSFER
---------------------------------------------------------
1. CERTIFICATES FOR SHARES.
Certificates representing shares of the corporation shall be in such
form as shall be determined by the directors. Such certificates shall be
signed by the president and by the secretary or by such other officers
authorized by law and by the directors. All certificates for shares
shall be consecutively numbered or otherwise identified. The name and
address of the stockholders, the number of shares and date of issue,
shall be entered on the stock transfer books of the corporation. All
certificates surrendered to the corporation for transfer shall be
canceled and no new certificate shall be issued until the
By-Laws 10
<PAGE>
former certificate for a like number of shares shall have been
surrendered and canceled, except that in case of a lost, destroyed or
mutilated certificate a new one may be issued therefor upon such terms
and indemnity to the corporation as the directors may prescribe.
2. TRANSFERS OF SHARES.
(a) Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it
shall be the duty of the corporation to issue a new certificate to the
person entitled thereto, and cancel the old certificate; every such
transfer shall be entered on the transfer book of the corporation which
shall be kept at its principal office.
(b) The corporation shall be entitled to treat the holder of record
of any share as the holder in fact thereof, and, accordingly, shall not
be bound to recognize any equitable or other claim to or interest in such
share on the part of any other person whether or not it shall have
express or other notice thereof, except as expressly provided by the laws
of this state.
ARTICLE VII - FISCAL YEAR
---------------------------
The fiscal year of the corporation shall begin on the 31st day of
December in each year.
ARTICLE VIII - DIVIDENDS
--------------------------
The directors may from time to time declare, and the corporation may
pay, dividends on its outstanding shares in the manner and upon the terms
and conditions provided by law.
ARTICLE IX - SEAL
-------------------
The directors shall provide a corporate seal which shall be circular
in form and shall have inscribed thereon the name of the corporation, the
state of incorporation, year of incorporation and the words, "Corporate Seal".
By-Laws 11
<PAGE>
ARTICLE X - WAIVER OF NOTICE
------------------------------
Unless otherwise provided by law, whenever any notice is required to
be given to any stockholder or director of the corporation under the
provisions of these by-laws or under the provisions of the articles of
incorporation, a waiver thereof in writing, signed by the person or
persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
ARTICLE XI - AMENDMENTS
-------------------------
These by-laws may be altered, amended or repealed and new by-laws
may be adopted by a vote of the stockholders representing a majority of
all the shares issued and outstanding, at any annual stockholders'
meeting or at any special stockholders' meeting when the proposed
amendment has been set out in the notice of such meeting.
By-Laws 12
EXHIBIT 3.5
NETVOICE TECHNOLOGIES CORPORATION
BYLAWS
------
ARTICLE I--OFFICES
Section 1.1 Office
- ------------------
The principal office of the corporation within the State of Nevada
shall be located at such place as shall be designated by the Board of Directors.
Section 1.2 Other Offices
- -------------------------
The corporation may also have such other offices, either within or
without the State of Nevada, as the Board of Directors may from time to
time determine or the business of the corporation may require.
ARTICLE II--STOCKHOLDERS
Section 2.1 Annual Meeting
- --------------------------
An annual meeting of the stockholders, for the selection of
directors to succeed those whose terms expire and for the transaction of
such other business as may properly come before the meeting, shall be
held at a location and at such time each year as designated by the Board
of Directors.
Section 2.2 Special Meetings
- ----------------------------
Special meetings of the stockholders, for any purpose or purposes
prescribed in the notice of the meeting, may be called by the Chairman,
the Board of Directors, the President, the chief executive officer, or
their holders of not less than one-tenth of all the shares entitled to
vote at the meeting, and shall be held at such place, on such date, and
at such time as they or he shall fix.
Section 2.3 Notice of Meetings
- ------------------------------
Written notice of the place, date and time of all meetings of the
stockholders shall be given, not less than ten (10) nor more than sixty
(60) days before the date on which the meeting is to be held, to each
stockholder entitled to vote at such meeting, except as otherwise
provided herein or required by law (meaning, here and hereinafter, as
required from time to time by the laws of the State of Nevada or the
Articles of Incorporation).
<PAGE>
When a meeting is adjourned to another place, date of time, written
notice need not be given of the adjourned meeting if the place, date and
time thereof are announced at the meeting at which the adjournment is
taken; provided, however, that if the date of any adjourned meeting is
more than thirty days after the date for which the meeting was originally
noticed, or if a new record date is fixed for the adjourned meeting,
written notice of the place, date, and time of the adjourned meeting
shall be given in conformity herewith. At any adjourned meeting, any
business may be transacted which might have been transacted at the
original meeting.
Section 2.4 Quorum
- ------------------
At any meeting of the stockholders, the holders of a majority of all
of the shares of the stock entitled to vote at the meeting, present in
person or by proxy, shall constitute a quorum for all purposes, unless or
except to the extent that the presence of a larger number may be required
by law.
If a quorum shall fail to attend any meeting, the chairman of the
meeting or the holders of a majority of the shares of the stock entitled
to vote who are present, in person or by proxy, may adjourn the meeting
to another place, date or time.
If a notice of any adjourned special meeting of stockholders is sent
to all stockholders entitled to vote thereat, stating that it will be
held with those present constituting a quorum, then except as otherwise
required by law, those present at such adjourned meeting shall constitute
a quorum, and all matters shall be determined by a majority of the votes
cast at such meeting.
Section 2.5 Organization
- ------------------------
Such person as the Board of Directors may have designated or, in the
absence of such a person, the highest ranking officer of the corporation
who is present shall call to order any meeting of the stockholders and
act as chairman of the meeting. In the absence of the Secretary of the
corporation, the secretary of the meeting shall be such person as the
chairman appoints.
Section 2.6 Conduct of Business
- -------------------------------
The chairman of any meeting of stockholders shall determine the
order of business and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of discussion as seem
to him in order.
Section 2.7 Proxies and Voting
- ------------------------------
At any meeting of the stockholders, even stockholder entitled to
vote may vote in person or by proxy authorized by any instrument in
writing filed in accordance with the procedure established for the meeting.
-2-
<PAGE>
Each stockholder shall have one vote for every share of stock
entitled to vote which is registered in his name on the record date for
the meeting, except as otherwise provided herein or required by law.
All voting, except on the election of directors and where otherwise
required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or his proxy, a stock
vote shall be taken. Every stock vote shall be taken by ballots, each of
which shall state the name of the stockholder or proxy voting and such
other information as may be required under the procedure established for
the meeting. Every vote taken by ballots shall be counted by an
inspector or inspectors appointed by the chairman of the meeting.
If a quorum is present, the affirmative vote of the majority of the
shares represented at the meeting and entitled to vote on the subject
matter shall be the act of the stockholders, unless the vote of a greater
number or voting by class is required by law, the Articles of
Incorporation, or these Bylaws.
Section 2.8 Stock List
- ----------------------
A complete list of stockholders entitled to vote at any meeting of
stockholders, arranged in alphabetical order for each class of stock and
showing the address of each such stockholder and the number of shares
registered in his name, shall be open to the examination of any such
stockholder, for any purpose germane to the meeting, during ordinary
business hours for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or if
not so specified, at the place where the meeting is to be held.
The stock list shall also be kept at the place of the meeting during
the whole time thereof and shall be open to the examination of any such
stockholder who is present. This list shall presumptively determine the
identity of the stockholders entitled to vote at the meeting and the
number of shares held by each of them.
Section 2.9 Participation in Meetings by Conference Telephone
- -------------------------------------------------------------
Any action, except the election of directors, which may be taken by
the vote of the stockholders at a meeting, may be taken without a meeting
if authorized by the written consent of stockholders holding at least a
majority of the voting power; provided:
(a) That if any greater proportion of voting power is required for
such action at a meeting, then such greater proportion of
written consents shall be required; and
(b) That this general provision shall not supersede any specific
provision for action by written consent required by law.
-3-
<PAGE>
ARTICLE III--BOARD OF DIRECTORS
Section 3.1 Number and Term of Office
- -------------------------------------
The number of directors who shall constitute the whole board shall
be such number not less than one (1) nor more than seven (7) as the Board
of directors shall at the time have designated. Each director shall be
selected for a term of one year and until his successor is elected and
qualified, except as otherwise provided herein or required by law.
Whenever the authorized number of directors is increased between
annual meetings of the stockholders, a majority of the directors then in
office shall have the power to elect such new directors for the balance
of a term and until their successors are elected and qualified. Any
decrease in the authorized number of directors shall not become effective
until the expiration of the term of the directors then in office unless,
at the time of such decrease, there shall be vacancies on the board which
are being eliminated by the decrease.
Section 3.2 Vacancies
- ---------------------
If the office of any director becomes vacant by reason of death,
resignation, disqualification, removal or other cause, a majority of the
directors remaining in office, although less than a quorum, may elect a
successor for the unexpired term and until his successor is elected and
qualified.
Section 3.3 Regular Meetings
- ----------------------------
Regular meetings of the Board of Directors shall be held at such
place or places, on such date or dates, and at such time or times as
shall have been established by the Board of Directors and publicized
among all directors. A notice or each regular meeting shall not be required.
Section 3.4 Special Meetings
- -----------------------------
Special meetings of the Board of Directors may be called by one-third
of the directors then in office or by the chief executive officer
and shall be held at such place, on such date and at such time as they or
he shall fix. Notice of the place, date and time of each such special
meeting shall be given by each director by whom it is not waived by
mailing written notice not less than three days before the meeting or by
telegraphing the same not less than eighteen hours before the meeting.
Unless otherwise indicated in the notice thereof, any and all business
may be transacted at a special meeting.
Section 3.5 Quorum
- ------------------
At any meeting of the Board of Directors, a majority of the total
number of the whole board shall constitute a quorum for all purposes. If
a quorum shall fail to attend any meeting, a majority of those present
may adjourn the meeting to another place, date or time, without further
notice or waiver thereof.
-4-
<PAGE>
Section 3.6 Participation in Meetings by Conference Telephone
- -------------------------------------------------------------
Members of the Board of Directors or of any committee thereof, may
participate in a meeting of such board or committee by means of
conference telephone or similar communications equipment that enables all
persons participating in the meting to hear each other. Such
participation shall constitute presence in person at such meeting.
Section 3.7 Conduct of Business
- -------------------------------
At any meeting of the Board of Directors, business shall be
transacted in such order and manner as the board may from time to time
determine, and all matters shall be determined by the vote of a majority
of the directors present, except as otherwise provided herein or required
by law. Action may be taken by the Board of Directors without a meeting
if all members thereof consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors.
Section 3.8 Powers
- ------------------
The Board of Directors may, except as otherwise required by law,
exercise all such powers and do all such acts and things as may be
exercised or done by the corporation, including, without limiting the
generality of the foregoing, the unqualified power:
(a) To declare dividends from time to time in accordance with law;
(b) To purchase or otherwise acquire any property, rights or
privileges on such terms as it shall determine;
(c) To authorize the creation, making and issuance, in such form as
it may determine, of written obligations of every kind, negotiable or
non-negotiable, secured or unsecured, and to do all things necessary in
connection therewith;
(d) To remove any officer of the corporation with or without cause,
and from time to time to devolve the powers and duties of any officer
upon any other person for the time being;
(e) To confer upon any officer of the corporation the power to
appoint, remove and suspend subordinate officers and agents;
(f) To adopt from time to time such stock option, stock purchase,
bonus or other compensation plans for directors, officers and agents of
the corporation and its subsidiaries as it may determine;
(g) To adopt from time to time such insurance, retirement and other
benefit plans for directors, officers and agents of the corporation and
its subsidiaries as it may determine; and
-5-
<PAGE>
(h) To adopt from time to time regulations, not inconsistent with
these Bylaws, for the management of the corporation's business and
affairs.
Section 3.9 Compensation of Directors
- -------------------------------------
Directors, as such, may receive, pursuant to resolution of the Board
of Directors, fixed fees and other compensation for their services as
directors, including, without limitation, their services as members of
committees of the directors.
Section 3.10 Loans
- ------------------
The corporation shall not lend money to or use its credit to assist
its officers, directors or other control persons without authorization in
the particular case by the stockholders, but may lend money to and use
its credit to assist any employee, excluding such officers, directors or
other control persons of the corporation or of a subsidiary, if such loan
or assistance benefits the corporation.
ARTICLE IV--COMMITTEES
Section 4.1 Committees of the Board of Directors
- ------------------------------------------------
The Board of Directors, by a vote of a majority of the whole board,
may from time to time designate committees of the board, with such
lawfully delegable powers and duties as it thereby confers, to serve at
the pleasure of the board and shall, for those committees and any other
provided for herein, elect a director or directors to serve as the member
or members, designating, if it desires, other directors as alternative
members who may replace any absent or disqualified member at any meeting
of the committee. Any committee so designated may exercise the power and
authority of the Board of Directors to declare a dividend or to authorize
the issuance of stock if the resolution which designates the committee or
a supplemental resolution of the Board of Directors shall so provide. In
the absence or disqualification of any member of any committee and any
alternate member in his place, the member or members of the committee
present at the meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may be unanimous vote appoint another
member of the Board of Directors to act at the meeting in the place of
the absent or disqualified member.
Section 4.2 Conduct of Business
- -------------------------------
Each committee may determine the procedural rules for meeting and
conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall
be made for notice to members of all meetings; a majority of the members
shall constitute a quorum unless the committee shall consist of one or
two members, in which event one member shall constitute a quorum; and all
matters shall be determined by a majority vote of the members present.
Action may be taken by any committee without a meeting if all members thereof
-6-
<PAGE>
consent thereto in writing, and the writing or writings are filed with
the minutes of the proceedings of such committee.
ARTICLE V--OFFICERS
Section 5.1 Generally
- ---------------------
The officers of the corporation shall consist of a president, one or
more vice-presidents, a secretary, a treasurer and such other subordinate
officers as may from time to time be appointed by the Board of Directors.
The corporation may also have a chairman of the board who shall be
elected by the Board of Directors and who shall be an officer of the
corporation. Officers shall be elected by the Board of Directors, which
shall consider that subject at its first meeting after every annual
meeting of stockholders. Each officer shall hold his office until his
successor is elected and qualified or until his earlier resignation or
removal. Any number of offices may be held by the same person, except
that the offices of president and secretary shall not be held by the same
person.
Section 5.2 Chairman of the Board
- ---------------------------------
The chairman of the board shall, subject to the direction of the
Board of Directors, perform such executive, supervisory, and management
functions and duties as may be assigned to him from time to time by the
Board of Directors. He shall, if present, preside at all meetings of the
stockholders and of the Board of Directors.
Section 5.3 President
- ---------------------
The president shall be the chief executive officer of the
corporation. Subject to the provisions of these Bylaws and to the
direction of the Board of Directors, he shall have the responsibility for
the general management and control of the affairs and business of the
corporation and shall perform all duties and have all powers which are
commonly incident to the office of chief executive or which are delegated
to him by the Board of Directors. He shall have power to signa all stock
certificates, contracts and other instruments of the corporation which
are authorized. He shall have general supervision and direction of all
of the other officers and agents of the corporation. He shall, when
present, and in the absence of a chairman of the board of directors,
preside at all meetings of the shareholders and of the Board of Directors.
Section 5.4 Vice-President
- --------------------------
Each vice-president shall perform such duties as the Board of
Directors shall prescribe. In the absence or disability of the
President, the vice-president who has served in such capacity for the
longest time shall perform the duties and exercise the powers of the president.
-7-
<PAGE>
Section 5.5 Treasurer
- ---------------------
The treasurer shall have the custody of the monies and securities of
the corporation and shall keep regular books of account. He shall make
such disbursements of the funds of the corporation as are proper and
shall render from time to time an account of all such transactions and of
the financial condition of the corporation.
Section 5.6 Secretary
- ---------------------
The secretary shall issue all authorized notices from, and shall
keep minutes of, all meetings of the stockholders and the Board of
Directors. He shall have charge of the corporate books.
Section 5.7 Delegation of Authority
- -----------------------------------
The Board of Directors may, from time to time, delegate the powers
or duties of any officer to any other officers or agents, notwithstanding
any provision hereof.
Section 5.8 Removal
- -------------------
Any officer of the corporation may be removed at any time, with or
without cause, by the Board of Directors.
Section 5.9 Action with Respect to Securities of Other Corporation
- ------------------------------------------------------------------
Unless otherwise directed by the Board of Directors, the president
shall have power to vote and otherwise act on behalf of the corporation,
in person or by proxy, at any meeting of stockholders of or with respect
to any action of stockholders of any other corporation in which this
corporation may hold securities and otherwise to exercise any and all
rights and powers which this corporation may possess by reason of its
ownership of securities in such other corporation.
ARTICLE VI--INDEMNIFICATION OF DIRECTORS,
OFFICERS AND OTHERS
Section 6.1 Generally
- ---------------------
The corporation shall indemnify its officers, directors, and agents
to the fullest extent permitted under Nevada law.
Section 6.2 Expenses
- --------------------
To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Section 6.1 of this
Article, or in defense of any claim, issue or matter therein, he shall be
indemnified against
-8-
<PAGE>
expenses (including attorney's fees) actually and reasonably incurred by
him in connection therewith. Expenses incurred in defending a civil or
criminal action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or proceeding as
authorized in the manner provided in Section 6.3 of this Article upon
receipt of an undertaking by or on behalf of the director, officer,
employee or agent to repay such amount unless it shall ultimately be
determined that he is entitled to be indemnified by the corporation as
authorized in this Article.
Section 6.3 Determination by Board of Directors
- -----------------------------------------------
Any indemnification under Section 6.1 of this Article (unless
ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in Nevada law.
Section 6.4 Not Exclusive of Other Rights
- -----------------------------------------
The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which those indemnified may be entitled
under any bylaw, agreement, vote of shareholders or interested directors
or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office and shall continue as to a
person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of
such a person.
Section 6.5 Insurance
- ---------------------
The corporation shall have power to purchase and maintain insurance
on behalf of an person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any
such capacity or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability
under the provisions of this Article.
The corporation's indemnity of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, office, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, shall be reduced by any amounts such person may collect as
indemnification (i) under any policy of insurance purchased and
maintained on his behalf by the corporation or (ii) from such other
corporation, partnership, joint venture, trust or other enterprise.
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<PAGE>
Section 6.6 Violation of Law
- ----------------------------
Nothing contained in this Article, or elsewhere in these Bylaws,
shall operate to indemnify any director or officer if such
indemnification is for any reason contrary to law, either as a matter of
public policy, or under the provisions of the Federal Securities Act of
1933, the Securities Exchange Act of 1934, or any other applicable state
or federal law.
Section 6.7 Coverage
- --------------------
For the purposes of this Article, references to "the corporation"
include all constituent corporations absorbed in a consolidation or
merger as well as the resulting or surviving corporation so that any
person who is or was a director, officer, employee or agent of such a
constituent corporation or is or was serving at the request of such a
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise shall stand in the same position under the provisions of this
Article with respect to the resulting or surviving corporation as he
would if he had served the resulting or surviving corporation in the same
capacity.
ARTICLE VII--STOCK
Section 7.1 Certificates of Stock
- ---------------------------------
Each stockholder shall be entitled to a certificate signed by, or in
the name of the corporation by, the President or a Vice-president, and by
the Secretary or an Assistant Secretary, or the Treasurer or an Assistant
Treasurer, certifying the number of shares owned by him. Any of or all
the signatures on the certificate may be facsimile.
Section 7.2 Transfers of Stock
- ------------------------------
Transfers of stock shall be made only upon the transfer books of the
corporation kept at an office of the corporation or by transfer agents
designated to transfer shares of the stock of the corporation. Except
where a certificate is issued in accordance with Section 7.4 of Article
VII of these Bylaws, an outstanding certificate for the number of shares
involved shall be surrendered for cancellation before a new certificate
is issued therefor.
Section 7.3 Record Date
- -----------------------
The Board of Directors may fix a record date, which shall not be
more than sixty (60) nor less than ten (10) days before the date of any
meeting of stockholders, nor more than sixty (60) days prior to the time
for the other action hereinafter described, as of which there shall be
determined the stockholders who are entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, to express
consent to corporate action in writing without a meeting; to receive
-10-
<PAGE>
payment of any dividend or other distribution or allotment of any rights;
or to exercise any rights with respect of any change, conversion or
exchange of stock or with respect to any other lawful action.
Section 7.4 Lost, Stolen or Destroyed Certificates
- --------------------------------------------------
In the event of the loss, theft or destruction of any certificate of
stock, another may be issued in its place pursuant to such regulations as
the Board of Directors may establish concerning proof of such loss, theft
or destruction and concerning the giving of a satisfactory bond or bonds
of indemnity.
Section 7.5 Regulations
- -----------------------
The issue, transfer, conversion and registration of certificates of
stock shall be governed by such other regulations as the Board of
Directors may establish.
ARTICLE VIII--NOTICES
Section 8.1 Notices
- -------------------
Whenever notice is required to be given to any stockholder,
director, officer, or agent, such requirement shall not be construed to
mean personal notice. Such notice may in every instance be effectively
given by depositing a writing in a post office or letter box, in a
postpaid, sealed wrapper, or by dispatching a prepaid telegram, addressed
to such stockholder, director, officer, or agent at his or her address as
the same appears on the books of the corporation. The time when such
notice is dispatched shall be the time of the giving of the notice.
Section 8.2 Waivers
- -------------------
A written waiver of any notice, signed by a stockholder, director,
officer or agent, whether before or after the time of the event for which
notice is given, shall be deemed equivalent to the notice required to be
given to such stockholder, director, officer or agent. Neither the
business nor the purpose of any meeting need be specified in such a waiver.
ARTICLE IX--MISCELLANEOUS
Section 9.1 Facsimile Signatures
- --------------------------------
In addition to the provisions for the use of facsimile signatures
elsewhere specifically authorized in these Bylaws, facsimile signatures
of any officer or officers of the corporation may be used whenever and as
authorized by the Board of Directors of a committee thereof.
-11-
<PAGE>
Section 9.2 Corporate Seal
- --------------------------
The Board of Directors may provide a suitable seal, containing the
name of the corporation, which seal shall be in the charge of the
secretary. If and when so directed by the Board of Directors or a
committee thereof, duplicates of the seal may be kept and used by the
treasurer or by the assistant secretary or assistant treasurer.
Section 9.3 Reliance Upon Books, Reports and Records
- ----------------------------------------------------
Each director, each member of any committee designated by the Board
of Directors, and each officer of the corporation shall, in the
performance of his duties, be fully protected in relying in good faith
upon the books of account or other records of the corporation, including
reports made to the corporation by any of its officers, by an independent
certified public accountant, or by an appraiser selected with reasonable care.
Section 9.4 Fiscal Year
- -----------------------
The fiscal year of the corporation shall be as fixed by the Board of
Directors.
Section 9.5 Time Periods
- ------------------------
In applying any of these Bylaws which require that an act be done or
not done a specified number of days prior to an event or that an act be
done during a period of a specified number of days prior to an event,
calendar days shall be used, the day of the doing of the act shall be
excluded and the day of the event shall be included.
Section 9.6 Acquisition of Controlling Interest
- -----------------------------------------------
The provisions of NRS 78.378 to 78.3793, inclusive, shall not apply
to this corporation.
ARTICLE X--AMENDMENTS
Section 10.1 Amendments
- -----------------------
These Bylaws may be amended or repealed by the Board of Directors at
any meeting or by the stockholders at any meeting.
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<PAGE>
CERTIFICATE OF SECRETARY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned does hereby certify that the undersigned is the
secretary of NetVoice Technologies Corporation, a corporation duly
organized and existing under and by virtue of the laws of the State of
Nevada; that the above and foregoing Bylaws of said corporation were duly
and regularly adopted as such by the Board of Directors by unanimous
consent executed the 28th day of October 1999; and that the above and
foregoing Bylaws are now in full force and effect.
Date this 28th day of October 1999
/s/ JAMES H. CHAMBAS
----------------------------------
James H. Chambas, Secretary
-13-
EXHIBIT 3.6
CERTIFICATE OF CORRECTION
FOR
NETVOICE TECHNOLOGIES CORPORATION
A Nevada Corporation
The undersigned President of the Corporation hereby certifies:
1. Name of the Corporation: NetVoice Technologies Corporation.
2. Purpose of this Certificate: To correct that certain "Certificate
of Amendment Blue Pines, Inc." filed
with the Nevada Secretary of State on
August 10, 1998 at #CZ621-77.
3. Incorrect Statement: The recitation of shareholder vote was
incorrectly stated as follows: "The
shareholders of Blue Pines, Inc., through
an Action of Shareholders without a meeting
and representing over 92% of the issued and
outstanding stock, adopted a resolution to
amend and clarify the Articles of
Incorporation as follows:"
4. Reason: The certifying officers of the corporation
inadvertently omitted a recitation noting
that the amendment to Article IX had been
approved by the required vote of the
shareholders of the corporation at a
meeting duly called by the Board of
Directors and at which a quorum of
shareholders was present held on August 29, 1997.
5. Statement as Corrected: "The shareholders of Blue Pines, Inc.:
(1) upon notice of and at a meeting
properly called by the Board of
Directors of the corporation at which
99 percent of the shareholders of the
corporation were present in person or
represented by proxy, and upon the
affirmative vote of all shares present
or represented at such meeting held
August 29, 1997 (as to the amendment
of Article IX); and (2) through an
Action of Shareholders without a
meeting, effective July 17, 1998,
pursuant to NRS Section 78.320, upon
the recommendation of the Board of
Directors (as to the amendment of the
Board of Directors (as to the
amendment of Article I) adopted
resolutions to amend and clarify the
Articles of Incorporation as follows:"
Dated 12/22/99 By: /s/ WILLIAM BEDRI
----------------------- -------------------------------
William Bedri, President
EXHIBIT 3.7
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
NETVOICE TECHNOLOGIES CORPORATION
Jeff Rothell and William Bedri hereby certify that:
1. They are the President and Secretary, respectively, of NetVoice
Technologies Corporation, a Nevada corporation (the "Company").
2. The Articles of Incorporation of the Company, are hereby amended
and restated in full to read as set forth in EXHIBIT A, THE SECOND
AMENDED AND RESTATED ARTICLES OF INCORPORATION, attached hereto and
incorporated herein by this reference.
3. The attached amendment and restatement of the Articles of
Incorporation of the Company, as amended has been duly approved by the
Board of Directors of this Company as evidenced by the Resolutions
attached hereto as EXHIBIT B.
4. The attached amendment and restatement of the Articles of
Incorporation has been duly approved by the Company's shareholders in
accordance with the Company's Articles of Incorporation as well as
Sections 78.390 and 78.403 of the Nevada General Corporation Law. The
total number of outstanding shares of Common Stock of the Company is
6,073,300. The percentage approval required was a majority of the
outstanding shares of Common Stock.. The percentage approving the
Second Amended and Restated Articles of Incorporation was 52.77
percent.
5. The undersigned further declare that the matters set forth in
this certificate are true and correct of their own knowledge.
Executed this 18TH day of January, 2000.
/s/ JEFF ROTHELL
---------------------------------
Jeff Rothell, President
/s/ WILLIAM BEDRI
---------------------------------
William Bedri, Secretary
<PAGE>
EXHIBIT A
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
NETVOICE TECHNOLOGIES CORPORATION
The undersigned President and Secretary of NetVoice Technologies
Corporation (the "Corporation"), pursuant to the requisite approval of the
Directors and Shareholders of the Corporation, hereby set forth and restate
in their entirety the Articles of Incorporation of the Corporation as
amended, to wit:
ARTICLE I
NAME
----
The name of this corporation is NetVoice Technologies Corporation.
ARTICLE II
DURATION
--------
The Corporation shall have perpetual existence.
ARTICLE III
PURPOSE
-------
The purposes for which this Corporation is formed are:
To do any or all of the things hereinafter mentioned, or as
hereinafter set forth as fully and to the same extent as natural persons
might or could do, including, but not limited to:
(A) To carry on any business whatsoever that this Corporation may
deem proper or convenient or otherwise, or that it may deem calculated,
directly or indirectly, to improve the interests of this Corporation, and
to do all things specified in the Nevada General Corporation Law, and to
have and to exercise all powers conferred by the laws of the State of
Nevada on corporations formed under the laws pursuant to which and under
which this Corporation is formed, as such laws are now in effect or may at
any time hereafter be amended, and to do any and all things hereinabove set
forth to the same extent and as fully as natural persons
<PAGE>
might or could do, either alone or in connection with other persons, firms,
associations, or corporations, and in any part of the world.
(B) The foregoing statement of purposes shall be construed as a
statement of both purposes and powers, shall be liberally construed in aid
of the powers of this Corporation, and the powers and purposes stated in
each clause shall, except where expressly stated, be in no way limited or
restricted by any term or provisions of any other clause.
ARTICLE IV
DIRECTORS
---------
The business and affairs of the Corporation shall be managed by the
Board of Directors which shall consist of not less than one (1) member nor
more than seven (7) members. The number of directors may be increased or
decreased by amendment to or in the manner provided in the Bylaws of the
Corporation, but no decrease shall have the effect of shortening the term
of any incumbent director.
ARTICLE V
BOARD OF DIRECTORS' POWER
-------------------------
All corporate powers shall be exercised by or under the authority of,
and the business and affairs of the Corporation managed under the direction
of, the Board of Directors. Unless otherwise specified in these Articles
of Incorporation, the corporate bylaws, or required by statute, no
resolution of the Corporation at any meeting at which a quorum of directors
is present, whether regular or special, shall be adopted except by a vote
of a simple majority of the directors eligible to vote.
ARTICLE VI
AUTHORIZED CAPITAL STOCK
------------------------
The Corporation is authorized to issue two classes of shares
designated, respectively, Preferred Stock (the "Preferred Stock") and
Common Stock (the "Common Stock"). The Corporation is authorized to issue
an aggregate of 50,000,000 shares of Preferred Stock and 100,000,000 shares
of Common Stock. The Common Stock of the Corporation shall have a par
value of $0.001 per share
The Board of Directors of the Corporation shall be authorized to
prescribe the series and number of shares in each series, and the voting
powers, designations, preferences, limitations,
-2-
<PAGE>
restrictions, and relative rights of each class and series of stock by
resolution as provided in Sections 78.195, 78.1955, and 78.196 of the
Nevada Revised Statutes.
The authorized stock of the Corporation may be issued at such time,
upon such terms and conditions, and for such consideration as the Board of
Directors shall, from time to time, determine. All stock when issued shall
be deemed fully paid and non-assessable.
No cumulative voting, on any matter to which the Shareholders shall be
entitled to vote, shall be allowed for any purpose. Shareholders shall not
have pre-emptive rights to acquire unissued shares of the stock of the
Corporation.
ARTICLE VII
TRANSACTIONS WITH INTERESTED DIRECTORS AND OFFICERS
---------------------------------------------------
(A) A contract or other transaction is not void or voidable solely
because:
(1) The contract or transaction is between a corporation and:
(a) One or more of its directors or officers; or
(b) Another corporation, firm or association in which one or
more of its directors or officers are directors or officers or
are financially interested;
(2) A common or interested director or officer:
(a) Is present at the meeting of the board of directors or
a committee thereof which authorizes or approves the contract or
transaction; or
(b) Joins in the execution of a written consent which
authorizes or approves the contract or transaction pursuant to
subsection 2 of Nevada Revised Statutes Section 78.315; or
(3) The vote or votes of a common or interested director are
counted for the purpose of authorizing or approving the contract or
transaction, if one of the circumstances specified in subsection B
exists.
(B) The circumstances in which a contract or other transaction is not
void or voidable pursuant to subsection A are:
(1) The fact of the common directorship, office or financial
interest is known to the board of directors or committee, and the
board or committee authorizes, approves or ratifies the contract or
transaction in good faith by a vote sufficient for the purpose without
counting the vote or votes of the common or interested director or
directors.
(2) The fact of the common directorship, office or financial
interest is known to the stockholders, and they approve or ratify the
contract or transaction in good faith by a
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<PAGE>
majority vote of stockholders holding a majority of the voting power.
The votes of the common or interested directors or officers must be
counted in any such vote of stockholders.
(3) The fact of the common directorship, office or financial
interest is not known to the director or officer at the time the
transaction is brought before the board of directors of the
Corporation for action.
(4) The contract or transaction is fair as to the corporation at
the time it is authorized or approved.
(C) Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or a committee
thereof which authorizes, approves or ratifies a contract or transaction,
and if the votes of the common or interested directors are not counted at
the meeting, then a majority of the disinterested directors may authorize,
approve or ratify a contract or transaction.
(D) Unless otherwise provided in these Articles of Incorporation or
the Bylaws, the board of directors, without regard to personal interest,
may establish the compensation of directors for services in any capacity.
If the board of directors establishes the compensation of directors
pursuant to this subsection, such compensation is presumed to be fair to
the Corporation unless proven unfair by a preponderance of the evidence.
ARTICLE VIII
LIABILITY OF DIRECTORS AND OFFICERS
-----------------------------------
No Director, Officer, or Agent (to include counsel) of the Corporation
shall be personally liable to the Corporation or its shareholders for
monetary damage for any breach or alleged breach of fiduciary duty by such
person acting in such capacity. It shall be presumed that in accepting the
position as an Officer, Director or Agent, said individual relied upon and
acted in reliance upon the terms and protections provided for by this
Article. Notwithstanding the foregoing sentences, a person specifically
covered by this Article, shall be liable to the extent provided by
applicable law, for acts or omissions which involve intentional misconduct,
fraud or a knowing violation of law, or for the payment of dividends in
violation of Nevada Revised Statutes Section 78.300.
-4-
<PAGE>
ARTICLE IX
ELECTION REGARDING NEVADA REVISED STATUTES
------------------------------------------
SECTIONS 78.378 TO 78.3793
--------------------------
AND
---
SECTIONS 78.411 TO 78.444
-------------------------
This Corporation shall NOT be governed by nor shall the provisions of
Nevada Revised Statutes Section 78.378 through and including Section
78.3793 and Section 78.411 through and including 78.444 in any way
whatsoever affect the management, operation of, or be otherwise applied to
this Corporation
ARTICLE X
INDEMNIFICATION
---------------
(A) The Corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, except an action by or in the right of the Corporation, by
reason of the fact that he is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another Corporation,
partnership, joint venture, trust or other enterprise, against expenses,
including attorneys' fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with the action, suit
or proceeding if he acted in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation,
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, does not, of itself, create a
presumption that the person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and that, with respect to any criminal action or proceeding,
he had reasonable cause to believe that his conduct was unlawful.
(B) The Corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that he is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses, including amounts paid in settlement and attorneys' fees actually
and reasonably incurred by him in connection with the defense or settlement
of the action or suit if he acted in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation. Indemnification may not
-5-
<PAGE>
be made for any claim, issue or matter as to which such a person has been
adjudged by a court of competent jurisdiction, after exhaustion of all
appeals therefrom, to be liable to the Corporation or for amounts paid in
settlement to the Corporation, unless and only to the extent that the court
in which the action or suit was brought or other court of competent
jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
(C) To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections A and B, or in
defense of any claim, issue or matter therein, the Corporation shall
indemnify him against expenses, including attorneys fees, actually and
reasonably incurred by him in connection with the defense.
ARTICLE XI
VOTING OF SHAREHOLDERS
----------------------
(A) Unless otherwise provided in these Articles of Incorporation, or
in the resolution providing for the issuance of the stock adopted by the
board of directors pursuant to authority expressly vested in it by the
provisions of these Articles of Incorporation, every stockholder of record
of the Corporation is entitled at each meeting of stockholders thereof to
one vote for each share of stock standing in his name on the records of the
Corporation. If these Articles of Incorporation, or the resolution
providing for the issuance of the stock adopted by the board of directors
pursuant to authority expressly vested in it by these Articles of
Incorporation, provides for more or less than one vote per share for any
class or series of shares on any matter, every reference in these Articles
of Incorporation or the Nevada General Corporation Law to a majority or
other proportion of stock shall be deemed to refer to a majority or other
proportion of the voting power of all of the shares or those classes or
series of shares, as may be required by these Articles of Incorporation, or
in the resolution providing for the issuance of the stock adopted by the
board of directors pursuant to authority expressly vested in it by the
provisions of these Articles of Incorporation, or the provisions of the
Nevada General Corporation Law.
(B) Unless contrary provisions are contained in these Articles of
Incorporation, the directors may prescribe a period not exceeding 60 days
before any meeting of the stockholders during which no transfer of stock on
the books of the Corporation may be made, or may fix, in advance, a record
date not more than 60 or less than 10 days before the date of any such
meeting as the date as of which stockholders entitled to notice of and to
vote at such meetings must be determined. Only stockholders of record on
that date are entitled to notice or to vote at such a meeting. If a record
date is not fixed, the record date is at the close of business on the day
before the day on which notice is given or, if notice is waived, at the
close of business on the day before the meeting is held. A determination
of stockholders of record entitled to notice of or to vote at a meeting of
stockholders applies to an adjournment of the meeting
-6-
<PAGE>
unless the board of directors fixes a new record date for the adjourned
meeting. The board of directors must fix a new record date if the meeting
is adjourned to a date more than 60 days later than the date set for the
original meeting.
(C) The provisions of this Article do not restrict the directors from
taking action to protect the interests of the Corporation and its
stockholders, including, but not limited to, adopting or executing plans,
arrangements or instruments that deny rights, privileges, power or
authority to a holder or holders of a specified number of shares or
percentage of share ownership or voting power.
IN WITNESS WHEREOF, the undersigned President and Secretary have
executed these Second Amended and Restated Articles of Incorporation.
/s/ JEFF ROTHELL
---------------------------------
Jeff Rothell, President
/s/ WILLIAM BEDRI
---------------------------------
William Bedri, Secretary
-7-
EXHIBIT 10.1
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "Agreement"), entered
into this 16th day of July 1998, is by, between, and among Blue Pines,
Inc., a publicly held Nevada corporation (hereinafter the "Purchaser"),
Net Voice Technologies, Inc., a privately-held Nevada corporation
(hereinafter the "Private Company"), and the shareholders of the Private
Company whose names and signatures are set forth upon the signature page
of this Agreement (the "Shareholders").
RECITALS
--------
WHEREAS, the Purchaser wishes to acquire, and the Shareholders are
willing to sell, all of the outstanding stock of the Private Company in
exchange solely for a part of the voting stock of the Purchaser whereby
the Shareholders would acquire a controlling interest of the Purchaser; and
WHEREAS, the parties hereto intend to qualify such transaction as a
tax-free exchange pursuant to Section 368(a)(1)(B) of the Internal
Revenue Code of 1986, as amended;
NOW, THEREFORE, based upon the stated premises, which are
incorporated herein by reference, and for and in consideration of the
mutual covenants and agreements set forth herein, the mutual benefits to
the parties to be derived herefrom, and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
the Purchaser, the Private Company, and the Shareholders approve and
adopt this Agreement and Plan of Reorganization and mutually covenant and
agree with each other as follow:
1. SHARES TO BE TRANSFERRED AND SHARES TO BE ISSUED.
1.1 On the Closing Date the Shareholders shall transfer to the
Purchaser certificates for the number of shares of the common stock of
the Private Company described in Schedule "A," attached hereto and
incorporated herein, which in the aggregate shall represent all of the
issued and outstanding shares of the common stock of the Private Company.
1.2 In exchange for the transfer of the common stock of the
Private Company pursuant to subsection 1.1. hereof, the Purchaser shall
on the Closing Date and contemporaneously with such transfer of the
common stock of the Private Company to it by the Shareholders issue and
deliver to the Shareholders the number of shares of common stock of the
Purchaser specified on Schedule "A" hereof such that the Shareholders
shall own approximately 75% of the outstanding common stock of the Purchaser.
2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each of
the Shareholders, for himself, herself, or itself, and not for any other
Shareholder, represents and warrants to the Purchaser as set forth below.
These representations and warranties are made as an inducement for the
<PAGE>
Purchaser to enter into this Agreement and, but for the making of such
representations and warranties and their accuracy, the Purchaser would
not be a party hereto.
2.1. OWNERSHIP OF STOCK.
a. Each of the Shareholders is the record and beneficial
owner and holder of the number of fully paid and nonassessable shares of
the common stock of the Private Company listed in Schedule "A" hereto as
of the date hereof and will continue to own such shares of the common
stock of the Private Company until the delivery thereof to the Purchaser
on the Closing Date and all such shares of common stock are or will be on
the Closing Date owned free and clear of all liens, encumbrances, charges
and assessments of every nature and subject to no restrictions with
respect to transferability. Each of the Shareholders currently has, and
will have at Closing, full power and authority to dispose, assign, and
transfer his, her, or its shares of the Private Company in accordance
with the terms hereof. Each of the Shareholders currently has, and will
have at Closing, full power and authority to vote his, her, or its shares
of the Private Company, without restriction of any kind.
b. Except for this Agreement, there are no outstanding
options, contracts, calls, commitments, agreements or demands of any
character relating to the common stock of the Private Company listed in
Schedule "A" and owned by each of the Shareholders.
2.2 ACCURACY OF ALL STATEMENTS MADE BY THE SHAREHOLDERS. No
representation or warranty by the Shareholders in this Agreement, nor any
statement, certificate, schedule, or exhibit hereto furnished or to be
furnished by or on behalf of the Shareholders pursuant to this Agreement,
nor any document or certificate delivered to the Purchaser by the
Shareholders pursuant to this Agreement or in connection with actions
contemplated hereby, contains or shall contain any untrue statement of
material fact or omits or shall omit a material fact necessary to make
the statements contained therein not misleading.
3. REPRESENTATIONS AND WARRANTIES OF THE PRIVATE COMPANY. The
Private Company represents and warrants to the Purchaser as set forth
below. These representations and warranties are made as an inducement
for the Purchaser to enter into this Agreement and, but for the making of
such representations and warranties and their accuracy, the Purchaser
would not be a party hereto.
3.1 ORGANIZATION AND AUTHORITY. The Private Company is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Nevada with full power and authority to enter
into and perform the transactions contemplated by this Agreement.
3.2 CAPITALIZATION. As of the date of the Closing, the
Private Company will have a total of no more than 3,000,000 shares of
common stock issued and outstanding. All of the shares will have been
duly authorized and validly issued and will be fully paid and
nonassessable. There are no options, warrants, conversion privileges, or
other rights presently outstanding for the purchase of any authorized but
unissued stock of the Private Company.
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3.3 PERFORMANCE OF THIS AGREEMENT. The execution and
performance of this Agreement and the transfer of stock contemplated
hereby have been authorized by the board of directors of the Private Company.
3.4 FINANCIALS. True copies of the financial statements of
the Private Company for the period ended June 30, 1998, have been
furnished to the Purchaser. Said financial statements are true and
correct in all material respects and present an accurate and complete
disclosure of the financial condition of the Private Company as of June
30, 1998, and the earnings for the periods covered, in accordance with
generally accepted accounting principles applied on a consistent basis.
3.5 LIABILITIES. There are no material liabilities of the
Private Company, whether accrued, absolute, contingent or otherwise,
which arose or relate to any transaction of the Private Company, its
agents or servants occurring prior to June 30, 1998, which are not
disclosed by or reflected in said financial statements. As of the date
hereof, there are no known circumstances, conditions, happenings, events
or arrangements, contractual or otherwise, which may hereafter give rise
to liabilities, except in the normal course of business of the Private Company.
3.6 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as set forth
in this Agreement, since June 30, 1998, there has not been (i) any
material adverse change in the business, operations, properties, level of
inventory, assets, or condition of the Private Company, or (ii) any
damage, destruction, or loss to the Private Company (whether or not
covered by insurance) materially and adversely affecting the business,
operations, properties, assets, or conditions of the Private Company.
3.7 LITIGATION. There are no legal, administrative or other
proceedings, investigations or inquiries, product liability or other
claims, judgments, injunctions or restrictions, either threatened,
pending, or outstanding against or involving the Private Company or its
subsidiaries, if any, or their assets, properties, or business, nor does
the Private Company or its subsidiaries know, or have reasonable grounds
to know, of any basis for any such proceedings, investigations or
inquiries, product liability or other claims, judgments, injunctions or
restrictions. In addition, there are no material proceedings existing,
pending or reasonably contemplated to which any officer, director, or
affiliate of the Private Company or as to which any of the Shareholders
is a party adverse to the Private Company or any of its subsidiaries or
has a material interest adverse to the Private Company or any of its
subsidiaries.
3.8 TAXES. All federal, state, foreign, county and local
incomes, profits, franchise, occupation, property, sales, use, gross
receipts and other taxes (including any interest or penalties relating
thereto) and assessments which are due and payable have been duly
reported, fully paid and discharged as reported by the Private Company,
and there are no unpaid taxes which are, or could become a lien on the
properties and assets of the Private Company, except as provided for in
the financial statements of the Private Company, or have been incurred in
the normal course of business of the Private Company since that date.
All tax returns of any kind required to be filed have been filed and the
taxes paid or accrued.
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3.9 HAZARDOUS MATERIALS. No hazardous material has been
released, placed, stored, generated, used, manufactured, treated,
deposited, spilled, discharged, released, or disposed or on or under any
real property currently or previously owned or leased by the Private
Company or any of its subsidiaries.
3.10 BUSINESS PLAN. All of the information contained in the
business plan of the Private Company, a copy of which has been furnished
to the Purchaser, is true and correct in all material respects and does
not contain any untrue statement of material fact or omit a material fact
necessary to make the statement contained therein not misleading.
3.11 ACCURACY OF ALL STATEMENTS MADE BY THE PRIVATE COMPANY.
No representation or warranty by the Private Company in this Agreement,
nor any statement, certificate, schedule, or exhibit hereto furnished or
to be furnished by or on behalf of the Private Company pursuant to this
Agreement, nor any document or certificate delivered to the Purchaser by
the Private Company pursuant to this Agreement or in connection with
actions contemplated hereby, contains or shall contain any untrue
statement of material fact or omits or shall omit a material fact
necessary to make the statements contained therein not misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants to the Private Company and to the Shareholders as
set forth below. These representations and warranties are made as an
inducement for the Private Company and the Shareholders to enter into
this Agreement and, but for the making of such representations and
warranties and their accuracy, the Private Company and the Shareholders
would not be parties hereto.
4.1 ORGANIZATION AND GOOD STANDING. The Purchaser is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Nevada with full power and authority to enter
into and perform the transactions contemplated by this Agreement.
4.2 CAPITALIZATION. As of the date of the Closing, the
Purchaser will have a total of no more than 995,050 post 1:3 reverse
split shares of common stock issued and outstanding. All of the shares
will have been duly authorized and validly issued and will be fully paid
and nonassessable. Except for the Purchaser's obligations hereunder with
respect to the shares to be issued pursuant to subsection 1.2 hereof,
there are no options, warrants, conversion privileges, or other rights
presently outstanding for the purchase of any authorized but unissued
stock of the Purchaser. As of the Closing, the Articles of
Incorporation, as amended, of the Purchaser (the "Purchaser Articles")
and as currently in effect shall be in the form previously furnished to
the Private Company and the Shareholders providing among other things for
one authorized class of stock and 100,000,000 shares of the stock
authorized. The rights, preferences, and privileges of the common stock
shall be as set forth in the Purchaser Articles.
4.3 PERFORMANCE OF THIS AGREEMENT. The execution and
performance of this Agreement and the issuance of stock contemplated
hereby have been authorized by the board of directors of the Purchaser.
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4.4 FINANCIALS. True copies of the financial statements of
the Purchaser consisting of the balance sheets as of the fiscal years
ended December 31, 1997, 1996, and 1995 (audited), and statements of
income, cash flow and changes in stockholder's equity for each of the
periods then ended, have been delivered by the Purchaser to the Private
Company. These statements have been examined and certified by Andersen,
Andersen & Strong, L.C., Certified Public Accountant. Said financial
statements are true and correct in all material respects and present an
accurate and complete disclosure of the financial condition of the
Purchaser as of December 31, 1997, and the earnings for the periods
covered, in accordance with generally accepted accounting principles
applied on a consistent basis.
4.5 LIABILITIES. There are no material liabilities of the
Purchaser, whether accrued, absolute, contingent or otherwise, which
arose or relate to any transaction of the Purchaser, its agents or
servants which are not disclosed by or reflected in said financial
statements. As of the date hereof, there are no known circumstances,
conditions, happenings, events or arrangements, contractual or otherwise,
which may hereafter give rise to liabilities, except in the normal course
of business of the Purchaser.
4.6 LITIGATION. There are no legal, administrative or other
proceedings, investigations or inquiries, product liability or other
claims, judgments, injunctions or restrictions, either threatened,
pending, or outstanding against or involving the Purchaser or its
subsidiaries, if any, or their assets, properties, or business, nor does
the Purchaser or its subsidiaries know, or have reasonable grounds to
know, of any basis for any such proceedings, investigations or inquiries,
product liability or other claims, judgments, injunctions or
restrictions. In addition, there are no material proceedings existing,
pending or reasonably contemplated to which any officer, director, or
affiliate of the Purchaser is a party adverse to the Purchaser or any of
its subsidiaries or has a material interest adverse to the Purchaser or
any of its subsidiaries.
4.7 TAXES. All federal, state, foreign, county and local
income, profits, franchise, occupation, property, sales, use, gross
receipts and other taxes (including any interest or penalties relating
thereto) and assessments which are due and payable have been duly
reported, fully paid and discharged as reported by the Purchaser, and
there are no unpaid taxes which are, or could become a lien on the
properties and assets of the Purchaser, except as provided for in the
financial statements of the Purchaser, or have been incurred in the
normal course of business of the Purchaser since that date. All tax
returns of any kind required to be filed have been filed and the taxes
paid or accrued.
4.8 HAZARDOUS MATERIALS. No hazardous material has been
released, placed, stored, generated, used, manufactured, treated,
deposited, spilled, discharged, released, or disposed of on or under any
real property currently or previously owned or leased by the Purchaser or
any of its subsidiaries.
4.9 LEGALITY OF SHARES TO BE ISSUED. The shares of common
stock of the Purchaser to be issued by the Purchaser pursuant to this
Agreement, when so issued and delivered, will have been duly and validly
authorized and issued by the Purchaser and will be fully paid and nonassessable.
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4.10 ACCURACY OF ALL STATEMENTS MADE BY THE PURCHASER. No
representation or warranty by the Purchaser in this Agreement, nor any
statement, certificate, schedule, or exhibit hereto furnished or to be
furnished by the Purchaser pursuant to this Agreement, nor any document
or certificate delivered to the Private Company or the Shareholders
pursuant to this Agreement or in connection with actions contemplated
hereby, contains or shall contain any untrue statement of material fact
or omits to state or shall omit to state a material fact necessary to
make the statements contained therein not misleading.
5. COVENANTS OF THE PARTIES.
5.1 CORPORATE RECORDS.
a. Simultaneous with the execution of this Agreement by
the Private Company, if not previously furnished, such entity shall
deliver to the Purchaser copies of the articles of incorporation, as
amended, and the current bylaws of the Private Company, and copies of the
resolutions duly adopted by the board of directors of the Private Company
approving this Agreement and the transactions herein contemplated.
b. Simultaneous with the execution of this Agreement by
the Purchaser, if not previously furnished, such entity shall deliver to
the Private Company copies of the Purchaser Articles, and the current
bylaws of the Purchaser, and copes of the resolutions duly adopted by the
board of directors of the Purchaser approving this Agreement and the
transactions herein contemplated.
5.2 ACCESS TO INFORMATION.
a. The Purchaser and its authorized representatives
shall have full access during normal business hours to all properties,
books, records, contracts, and documents of the Private Company, and the
Private Company shall furnish or cause to be furnished to the Purchaser
and its authorized representatives all information with respect to its
affairs and business as the Purchaser may reasonably request. The
Purchaser shall hold, and shall cause its representatives to hold
confidential, all such information and documents, other than information
that (i) is in the public domain at the time of its disclosure to the
Purchaser; (ii) becomes part of the public domain after disclosure
through no fault of the Purchaser; (iii) is known to the Purchaser or any
of its officers or directors prior to disclosure; or (iv) is disclosed in
accordance with the written consent of the Private Company. In the event
this Agreement is terminated prior to Closing, the Purchaser shall, upon
the written request of the Private Company, promptly return all copies of
all documentation and information provided by the Private Company hereunder.
b. The Private Company and its authorized
representatives shall have full access during normal business hours to
all properties, books, records, contracts, and documents of the
Purchaser, and the Purchaser shall furnish or cause to be furnished to
the Private Company and its authorized representatives all information
with respect to its affairs and business the Private
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Company may reasonably request. The Private Company shall hold, and
shall cause its representatives to hold confidential, all such
information and documents, other than information that (i) is in the
public domain at the time of its disclosure to the Private Company; (ii)
becomes part of the public domain after disclosure through no fault of
the Private Company; (iii) is known to the Private Company or any of its
officers or directors prior to disclosure; or (iv) is disclosed in
accordance with the written consent of the Purchaser. In the event this
Agreement is terminated prior to Closing, the Private Company shall, upon
the written request of the Purchaser, promptly return all copies of all
documentation and information provided by the Purchaser hereunder.
5.3 ACTIONS PRIOR TO CLOSING. From and after the date of this
Agreement and until the Closing Date:
a. The Purchaser and the Private Company shall each
carry on its business diligently and substantially in the same manner as
heretofore, and neither party shall make or institute any unusual or
novel methods of purchase, sale, management, accounting or operation.
b. Neither the Purchaser nor the Private Company shall
enter into any contact or commitment, or engage in any transaction not in
the usual and ordinary course of business and consistent with its
business practices.
c. Neither the Purchaser nor the Private Company shall
amend its articles of incorporation or bylaws or make any changes in
authorized or issued capital stock, except as provided in this Agreement.
d. The Purchaser and the Private Company shall each use
its best efforts (without making any commitments on behalf of the
company) to preserve its business organization intact.
e. Neither the Purchaser nor the Private Company shall
do any act or omit to do any act, or permit any act or omission to act,
which will cause a material breach of any material contract, commitment,
or obligation of such party.
f. The Purchaser and the Private Company shall each duly
comply with all applicable laws as may be required for the valid and
effective issuance or transfer of stock contemplated by this Agreement.
g. Neither the Purchaser nor the Private Company shall
sell or dispose of any property or assets, except products sold in the
ordinary course of business.
h. The Purchaser and the Private Company shall each
promptly notify the other of any lawsuits, claims, proceedings or
investigations that may be threatened, brought, asserted, or commenced
against it, its officers or directors involving in any way the business,
properties, or assets of such party.
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5.4 SHAREHOLDERS' APPROVAL. The Purchaser shall promptly
submit this Agreement and the transactions contemplated hereby for the
approval of its stockholders by majority written consent or at a meeting
of stockholders and, subject to the fiduciary duties of the Board of
directors of the Purchaser under applicable law, shall use its best
efforts to obtain stockholder approval and adoption of this Agreement and
the transactions contemplated hereby. In connection with such written
action by, or meeting of, stockholders, the Purchaser shall prepare a
proxy or information statement to be furnished to the shareholders of the
Purchaser setting forth information about this Agreement and the
transactions contemplated hereby. The Private Party shall promptly
furnish to the Purchaser all information, and take such other actions, as
may reasonably be requested in connection with any action to be taken by
the Purchaser in connection with the immediately preceding sentence. The
Private Company shall have the right to review and provide comments to
the proxy or information statement prior to mailing to the shareholders
of the Purchaser.
5.5 NO COVENANT AS TO TAX OR ACCOUNTING CONSEQUENCES. It is
expressly understood and agreed that neither the Purchaser nor its
officers or agents has made any warranty or agreement, expressed or
implied, as to the tax or accounting consequences of the transactions
contemplated by this Agreement or the tax or accounting consequences of
any action pursuant to or growing out of this Agreement.
5.6 INDEMNIFICATION. The Private Company and the
Shareholders, severally and not jointly, shall indemnify Purchaser for
any loss, cost, expense, or other damage (including, without limitation,
attorneys' fees and expenses) suffered by Purchaser resulting from,
arising out of, or incurred with respect to the falsity or the breach of
any representation, warranty, or covenant made by the Private Company or
the Shareholders herein, and any claims arising from the operations of
the Private Company prior to the Closing Date. Purchaser shall indemnify
and hold the Private Company and the Shareholders harmless from and
against any loss, costs, expense, or other damage (including, without
limitation, attorneys' fees and expenses) resulting from, arising out of,
or incurred with respect to, or alleged to result from, arise out of or
have been incurred with respect to, the falsity or the breach of any
representation, covenant, warranty, or agreement made by Purchaser
herein, and any claims arising from the operations of Purchaser prior to
the Closing Date. The indemnity agreement contained herein shall remain
operative and in full force and effect, regardless of any investigation
made by or on behalf of any party and shall survive the consummation of
the transactions contemplated by this Agreement.
5.7 PUBLICITY. The parties agree that no publicity, release,
or other public announcement concerning this Agreement or the
transactions contemplated by this Agreement shall be issued by any party
hereto without the advance approval of both the form and substance of the
same by the other parties and their counsel, which approval, in the case
of any publicity, release, or other public announcement required by
applicable law, shall not be unreasonably withheld or delayed.
5.8 EXPENSES. Except as otherwise expressly provided herein,
each party to this Agreement shall bear its own respective expenses
incurred in connection with the negotiation and preparation of this
Agreement, in the consummation of the transactions contemplated hereby,
and in
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connection with all duties and obligations required to be performed by
each of them under this Agreement.
5.9 FURTHER ACTIONS. Each of the parties hereto shall take
all such further action, and execute and deliver such further documents,
as may be necessary to carry out the transactions contemplated by this
Agreement.
5.10 NAME CHANGE. Prior to closing, the Purchaser shall
present to its shareholders for approval an amendment to the Purchaser's
articles of incorporation authorizing a change of name of the Purchaser
to "Net Voice Technologies Corporation," or some other name designated by
the Private Company.
5.11 REVERSE STOCK SPLIT. Prior to closing, the Purchaser
shall present to its shareholders for approval one-for-three reverse
stock split of the outstanding common stock of the Purchaser such that at
closing the Purchaser shall have not more than 995,050 shares of common
stock outstanding.
5.12 AMENDMENT TO ARTICLES OF INCORPORATION. Prior to closing,
the Purchaser shall present to its shareholders for approval an amendment
to its articles of incorporation to eliminate all but the first sentence
of Article IX of such articles of incorporation.
6. CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATIONS. Each and
every obligation of the Purchaser to be performed on the Closing Date
shall be subject to the satisfaction prior thereto of the following conditions:
6.1 TRUTH OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by the Private Company and the
Shareholders in this Agreement or given on their behalf hereunder shall
be substantially accurate in all material respects on and as of the
Closing Date with the same effect as though such representations and
warranties had been made or given on and as of the Closing Date.
6.2 PERFORMANCE OF OBLIGATIONS AND COVENANTS. The Private
Company and the Shareholders shall have performed and complied with all
obligations and covenants required by this Agreement to be performed or
complied with by them prior to or at the Closing.
6.3 OFFICER'S CERTIFICATE. The Purchaser shall have been
furnished with a certificate (dated as of the Closing Date and in the
form and substance reasonably satisfactory to the Purchaser), executed by
an executive officer of the Private Company, certifying to the
fulfillment of the conditions specified in subsections 6.1 and 6.2 hereof.
6.4 NO LITIGATION OR PROCEEDINGS. There shall be no
litigation or any proceeding by or before any governmental agency or
instrumentality pending or threatened against any party
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hereto that seeks to restrain or enjoin or otherwise questions the
legality or validity of the transactions contemplated by this Agreement
or which seeks substantial damages in respect thereof.
6.5 NO MATERIAL ADVERSE CHANGE. As of the Closing Date there
shall not have occurred any material adverse change, financially or
otherwise, which materially impairs the ability of the Private Company to
conduct its business or the earning power thereof on the same basis as in
the past.
6.6 SHAREHOLDERS' APPROVAL. The holders of not less than a
majority of the outstanding common stock of the Purchaser shall have
voted for authorization and approval of this Agreement and the
transactions contemplated hereby.
6.7 SHAREHOLDERS' EXECUTION OF AGREEMENT. This Agreement
shall have been duly executed and delivered by each of the parties owning
in the aggregate all of the outstanding stock of the Private Company as
of the Closing Date.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PRIVATE COMPANY AND
THE SHAREHOLDERS. Each and every obligation of the Private Company and
the Shareholders to be performed on the Closing Date shall be subject to
the satisfaction prior thereto of the following conditions:
7.1 TRUTH OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by the Purchaser in this Agreement or
given on its behalf hereunder shall be substantially accurate in all
material respects on and as of the Closing Date with the same effect as
though such representations and warranties had been made or given on and
as of the Closing Date.
7.2 PERFORMANCE OF OBLIGATIONS AND COVENANTS. The Purchaser
shall have performed and complied with all obligations and covenants
required by this Agreement to be performed or complied with by it prior
to or at the Closing.
7.3 OFFICER'S CERTIFICATE. The Private Company shall have
been furnished with a certificate (dated as of the Closing Date and in
form and substance reasonably satisfactory to the Private Company),
executed by an executive officer of the Purchaser, certifying to the
fulfillment of the conditions specified in subsections 7.1 and 7.2 hereof.
7.4 NO LITIGATION OR PROCEEDINGS. There shall be no
litigation or any proceeding by or before any governmental agency or
instrumentality pending or threatened against any party hereto that seeks
to restrain or enjoin or otherwise questions the legality or validity of
the transactions contemplated by this Agreement or which seeks
substantial damages in respect thereof.
7.5 NO MATERIAL ADVERSE CHANGE. As of the Closing Date there
shall not have occurred any material adverse change, financially or
otherwise, which materially impairs the ability of the Purchaser to
conduct its business.
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7.6 NO MATERIAL LIABILITIES OF PURCHASER. As of the Closing
Date the Purchaser shall have no liabilities which in the aggregate
exceed $1,000.
7.7 NAME CHANGE. Prior to closing, the Purchaser shall have
duly authorized an amendment to the Purchaser's articles of incorporation
authorizing a change of name of the Purchaser to "Net Voice Technologies
Corporation," or some other name designated by the Private Company.
7.8 REVERSE STOCK SPLIT. Prior to closing, the Purchaser
shall have duly authorized a one-for-three reverse stock split of the
outstanding common stock of the Purchaser such that at closing the
Purchaser shall have not more than 995,050 shares of common stock outstanding.
7.9 AMENDMENT TO ARTICLES OF INCORPORATION. Prior to closing,
the Purchaser shall have duly authorized an amendment to its articles of
incorporation to eliminate all but the first sentence of Article IX of
such articles of incorporation.
8. SECURITIES LAW PROVISIONS.
8.1 RESTRICTED SECURITIES. Each of the parties hereto,
severally and not jointly, represents that he, she, or it is aware that
the shares issued or transferred to him, her, or it will not have been
registered pursuant to the Securities Act of 1933, as amended (the "1933
Act"), or any state securities act, and thus will be restricted
securities as defined in Rule 144 promulgated by the Securities and
Exchange Commission (the "SEC"). Therefore, under current
interpretations and applicable rules, he, she, or it will probably have
to retain such shares for a period of at least one year and at the
expiration of such one year period his, her, or its sales may be confined
to brokerage transactions of limited amounts requiring certain
notification filings with the SEC and such disposition may be available
only if the issuer is current in its filings with the SEC under the
Securities Exchange Act of 1934, as amended, or other public disclosure
requirements.
8.2 NON-DISTRIBUTIVE INTENT. Each of the parties hereto,
severally and not jointly, covenants and warrants that the shares
received are acquired for his, her, or its own account and not with the
present view towards the distribution thereof and he, she, or it will not
dispose of such shares except (i) pursuant to an effective registration
statement under the 1933 Act, or (ii) in any other transaction which, in
the opinion of counsel acceptable to the issuer, is exempt from
registration under the 1933 Act, or the rules and regulations of the SEC
thereunder. In order to effectuate the covenants of this subsection, an
appropriate legend with be placed upon each of the certificates of common
stock issued or transferred pursuant to this Agreement, and stop transfer
instructions shall be placed with the transfer agent for the securities.
8.3 EVIDENCE OF COMPLIANCE WITH PRIVATE OFFERING EXEMPTION.
Each of the parties hereto, severally and not jointly, hereby represents
and warrants that he, she, or it, either individually or together with
his, her, or its representative, has such knowledge and experience in
business and financial matters that he, she, or it is capable of
evaluating the risks of this Agreement and the transactions contemplated
hereby, and that financial capacity of such party is of such proportion
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that the total cost of such person's commitment in the shares would not
be material when compared with his, her, or its total financial capacity.
Each of the Shareholders hereby acknowledges receipt of the following
documents pertaining to the Purchaser and this transaction: Purchaser's
Information Statement dated February 10, 1998. Upon the written request
of the issuer of the securities issued or transferred pursuant to this
Agreement, any party hereto shall provide such issuer with evidence of
compliance with the requirements of any federal or state exemption from
registration. The Purchaser and the Private Company shall each file,
with the assistance of the other and its respective legal counsel, such
notices, applications, reports, or other instruments as may be deemed by
each of them to be necessary or appropriate in an effort to document
reliance on such exemptions, unless an exemption requiring no filing is
available in the particular jurisdiction, all to the extent and in the
manner as may be deemed by such parties to be appropriate.
9. CHANGE OF MANAGEMENT. Upon and as a condition of Closing this
Agreement:
9.1 Prior to Closing the Purchaser will increase the number of
directors to three persons and shall present to its shareholders for
approval the election of William Bedri, William D. Yotty, and Tony O.
LaVine, Jr. as directors of the Purchaser effective immediately following
the Closing of this Agreement. Prior to Closing the Private Company will
furnish material information of William Bedri, William D. Yotty, and Tony
O. LaVine, Jr. as nominees to be elected by the shareholders of the
Purchaser. Purchaser reserves the right to refuse to cause the
nomination of any or all such persons as directors of Purchaser if, after
review of the foregoing information concerning said persons, it is the
opinion of Purchaser that the election of such persons would not be in
the best interests of Purchaser.
9.2 The Private Company reserves the right to terminate this
Agreement if nominees selected by it are not elected or appointed as set
forth above.
10. CLOSING.
10.1 TIME AND PLACE. The Closing of this transaction
("Closing") shall take place at 57 West 200 South, Suite 310, Salt Lake
City, Utah, at 10:00 am, on August 6, 1998, or at such other time and
place as the parties hereto shall agree upon. Such date is referred to
in this Agreement as the "Closing Date."
10.2 DOCUMENTS TO BE DELIVERED BY THE PRIVATE COMPANY AND THE
SHAREHOLDERS. At the Closing the Private Company and the Shareholders
shall deliver to the Purchaser the following documents:
a. Certificates for the number of shares of common stock
of the Private Company in the manner and form required by subsection 1.1 hereof.
b. The certificate required pursuant to subsection 6.3 hereof.
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c. Such other documents of transfer, certificates of
authority, and other documents as the Purchaser may reasonably request.
10.3 DOCUMENTS TO BE DELIVERED BY THE PURCHASER. At the
Closing the Purchaser shall deliver to the Private Company and the
Shareholders the following documents:
a. Certificates for the number of shares of common stock
of the Purchaser as determined in sub-section 1.2 hereof.
b. The certificate required pursuant to subsection 7.3 hereof.
c. Such other documents of transfer, certificates of
authority, and other documents as the Private Company and the
Shareholders may reasonably request.
11. TERMINATION. This Agreement may be terminated by the Purchaser
or the Private Company by notice to the other if, (i) at any time prior
to the Closing Date any event shall have occurred or any state of facts
shall exist that renders any of the conditions to its or their
obligations to consummate the transactions contemplated by this Agreement
incapable of fulfillment, or (ii) on August 15, 1998, if the Closing
shall not have occurred. Following termination of this Agreement no
party shall have liability to another party relating to such termination,
other than any liability resulting from the breach of this Agreement by a
party prior to the date of termination.
12. MISCELLANEOUS.
12.1 NOTICES. All communications provided for herein shall be
in writing and shall be deemed to be given or made when served personally
or when deposited in the United States mail, certified return receipt
requested, addressed as follows, or at such other address as shall be
designated by any party hereto in written notice to the other party
hereto delivered pursuant to this subsection:
Purchaser: Zen Merritt, President
1431 South Nebraska Ave.
Suite 3
Casper, WY 82609
With Copy to: J. Garry McAllister
Attorney at Law
1487 East Thistle Downs Drive
Sandy, UT 84092
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Private Company
and Shareholders William Bedri, President
5902 Preston Oaks
Suite 1060
Dallas, TX 75240
With Copy to: Ronald N. Vance
Attorney at Law
57 West 200 South
Suite 310
Salt Lake City, UT 84101
12.2 DEFAULT. Should any party to this Agreement default in
any of the covenants, conditions, or promises contained herein, the
defaulting party shall pay all costs and expenses, including a reasonable
attorney's fee, which may arise or accrue from enforcing this Agreement,
or in pursuing any remedy provided hereunder or by the statutes of the
State of Utah.
12.3 ASSIGNMENT. This Agreement may not be assigned in whole
or in part by the parties hereto without the prior written consent of the
other party or parties, which consent shall not be unreasonably withheld.
12.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto, their heirs,
executors, administrators, successors and assigns.
12.5 PARTIAL INVALIDITY. If any term, covenant, condition, or
provision of this Agreement or the application thereof to any person or
circumstance shall to any extent be invalid or unenforceable, the
remainder of this Agreement or application of such term or provision to
persons or circumstances other than those as to which it is held to be
invalid or unenforceable shall not be affected thereby and each term,
covenant, condition, or provision of this Agreement shall be valid and
shall be enforceable to the fullest extent permitted by law.
12.6 ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding between the parties hereto with respect to the subject
matter hereof and supersedes all negotiations, representations, prior
discussions, letters of intent, and preliminary agreements between the
parties hereto relating to the subject matter of this Agreement.
12.7 INTERPRETATION OF AGREEMENT. This Agreement shall be
interpreted and construed as if equally drafted by all parties hereto.
12.8 SURVIVAL OF COVENANTS, ETC. All covenants,
representations, and warranties made herein to any party, or in any
statement or document delivered to any party hereto, shall survive the
making of this Agreement and shall remain in full force and effect until
the obligations of such party hereunder have been fully satisfied.
-14-
<PAGE>
12.9 FURTHER ACTION. The parties hereto agree to execute and
deliver such additional documents and to take such other and further
action as may be required to carry out fully the transactions
contemplated herein.
12.10 AMENDMENT. This Agreement or any provision hereof may
not be changed, waived, terminated, or discharged except by means of a
written supplemental instrument signed by the party or parties against
whom enforcement of the change, waiver, termination, or discharge is sought.
12.11 FULL KNOWLEDGE. By their signatures, the parties
acknowledge that they have carefully read and fully understand the terms
and conditions of this Agreement, that each party has had the benefit of
counsel, or has been advised to obtain counsel, and that each party has
freely agreed to be bound by the terms and conditions of this Agreement.
12.12 HEADINGS. The descriptive headings of the various
sections or parts of this Agreement are for convenience only and shall
not affect the meaning or construction of any of the provisions hereof.
12.13 COUNTERPARTS. This Agreement may be executed in two or
more partially or fully executed counterparts, each of which shall be
deemed an original and shall bind the signatory, but all of which
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto executed the foregoing
Agreement and Plan of Reorganization as of the day and year first above written.
PURCHASER: Blue Pines, Inc.
By: /s/ JEFF LARRABEE
-----------------------------------
Jeff Larrabee, President
PRIVATE COMPANY: Net voice Technologies, Inc.
By: /s/ WILLIAM BEDRI
-----------------------------------
William Bedri, President
SHAREHOLDERS: /s/ WILLIAM D. YOTTY
--------------------------------------
William D. Yotty, Individually
-15-
<PAGE>
/s/ WILLIAM BEDRI
--------------------------------------
William Bedri, Individually
/s/ JIM CHAMBAS
--------------------------------------
Jim Chambas, Individually
/s/ RON HOWARD
--------------------------------------
Ron Howard, Individually
/s/ DAVID COLE
--------------------------------------
David Cole, Individually
/s/ FRED RACKERS
--------------------------------------
Fred Rackers, Individually
-16-
<PAGE>
SCHEDULE "A"
TO THE
AGREEMENT AND PLAN OF REORGANIZATION
NO. OF SHARES OF NO. OF SHARES OF
NAME OF THE PRIVATE COMPANY THE PURCHASER
SHAREHOLDER TO BE TRANSFERRED TO BE ISSUED
- ----------- ----------------- ------------
William D. Yotty 1,505,000 1,505,000
William Bedri 300,000 300,000
Jim Chambas 300,000 450,000
Ron Howard 600,000 450,000
David Cole 145,000 145,000
Fred Rackers 150,000 150,000
------- -------
TOTAL 3,000,000 3,000,000
========= =========
-17-
EXHIBIT 10.2
MEMORANDUM OF UNDERSTANDING
To: Allan King
MultiCom Services
From: Maya Jazrawi
NetVoice Technologies
Date: 9/8/99
RE: Strategic Partnership
NetVoice Technologies is excited about the opportunity to join with
MultiCom as we look for new market and enhanced revenue opportunities.
Our current proposal is as follows:
Waco Call Center
- ----------------
* Shared infrastructure
* Revenue split to be decided at a later date
* NetVoice will pick up hardware costs for the router
* MultiCom will pay for their local loop
* the call center will pay for their local loop
Austin Call Center
- ------------------
* NetVoice will sell unlimited minutes to MultiCom to resell to the
Austin call center
* NetVoice will charge 2.5 cents/minute for all on net minutes and 5.2
cents/minute for all off net minutes
* As the NetVoice network grows and additional cities go on-line, on
net savings will be passed to MultiCom at on net minute rates
Agent Package
- -------------
* Option 1 - agent package: NetVoice will sell to MultiCom on net
minutes at 2.5 cents/minute and off net minutes at 5.2 cents/minute
College/Residential/Business Markets
- ------------------------------------
* NetVoice has right to refuse specific market (geographic, product)
entry for multiCom products requiring minutes wholesaled from
NetVoice
* All products using MultiCom wholesaled minutes will be co-branded
with the "powered by NetVoice" slogan and logo
* MultiCom can purchase unlimited minutes from NetVoice at 2.5
cents/minute on net and 5.2 cents/minute off net
* As the NetVoice network grows and additional cities go on-line, on
net savings will be passed to MultiCom at on net minute rates
In - Office VoIP service
- ------------------------
* NetVoice will provide VoIP service for MultiCom offices at 2.5
cents/minute on net and 5.2 cents/minute off net
Press Release
- ------------
<PAGE>
* Upon agreement of this MOU NetVoice and MultiCom will jointly
release a press statement announcing our strategic partnership
We are very excited about moving forward as partners and look forward to
ironing our all details related to the above mentioned options.
/s/ MAYA JAZRAWI CROTHERS 9/8/99 /s/ ALLAN KING
- ------------------------------- -------------------------------
Maya Jazrawi Crothers Allan King
Director of Business Development President/CEO
Netvoice Technologies MultiCom Services
EXHIBIT 10.3
MEMORANDUM OF UNDERSTANDING
To: Richard Rohn - Diversified Data Distributors
From: Maya Jazrawi - NetVoice Technologies
Date: 11/9/99
RE: Strategic Partnership
NetVoice Technologies is excited about the opportunity to join with
Distributed Data Distributors, Inc. (DDD) as we look for distribution
channels into the corporate arena. Our proposal is as follows
Bundled/unbundled Products and Services
- ---------------------------------------
* NetVoice will provide the following products and services for
distribution via DDDs sales force:
* Internet Protocol (IP) voice product available for distribution
today
* ISP capabilities with private branding opportunities for DDDs
customers available January 1, 2000
* Unified messaging available January 1, 2000
* Call center overflow as well as complete outsourcing with
"click to talk" capabilities available January 1, 2000
* IP fax solution available January 1, 2000
* Pre-paid calling with DID or 800 access available today
* We will endeavor to provide all other products and services
suggested to us by DDD as viable selling opportunities into the
corporate segment
Pricing
- -------
* Pricing for all products on a bundled or unbundled basis will be
mutually agreed upon by NetVoice and DDD
* Revenue / profit share for all products will be mutually agreed
upon by NetVoice and DDD
* Web accessible pricing "worksheets" will be created by NetVoice
to aid the DDD sales force in pricing for the following
categories
* Small business
* Medium business
* Large business
Custom pricing will also be available for accounts that are mutually
agreed (by NetVoice and DDD) to merit such attention
Support
- -------
* NetVoice will provide sales support whenever applicable
* NetVoice will manage all billing and DDD compensation
* NetVoice will work in partnership with DDD whenever necessary to
further enhance our shared business ad partnership
Relationship
- ------------
* We expect our relationship will be approached as a partnership
rather than client / customer one.
* NetVoice will allow DDD direct sales distribution of our family of
products and services into the corporate market. Under this
agreement, we view DDD as our own sales force into the corporate arena
/s/ RICHARD ROHN Richard Rhon - Diversified Data Distributors
- ------------------------- 11/9/99 Date
---------
/s/ JEFF ROTHELL Jeff Rothell - NetVoice Technologies 11/10/99 Date
- ------------------------- ---------
EXHIBIT 10.4
AGREEMENT
THIS AGREEMENT made and entered into this 13th day of August,
1998, by and between INTERWEST TRANSFER CO., INC., hereinafter referred
to as the "Agent", and Netvoice Technologies, hereinafter referred to as
the "Company".
1. Agent shall be and is hereby appointed transfer agent, warrant
agent and registrar for the common stock of the Company.
2. The Secretary of the Company will file with the Agent before
Agent begins to act as transfer agent:
A. A copy of the Articles of Incorporation of the Company.
B. Specimens of all forms of outstanding certificates of shares of
the Company in the form approved by the Board of Directors.
C. A list of all outstanding securities together with a statement
that future transfers may be made without restriction on all securities
except as noted by the secretary and except shares subject to a
restriction noted on the face of said shares and in the corporate stock
records.
D. A list of all shareholders considered "insiders" or "control"
persons as defined in the Securities Act of 1933, 1934, and other acts of
congress and rules and regulations of the United States Securities and
Exchange Commission, or any State Securities Division, when applicable.
E. The names and specimen signatures of all officers who are and
have been authorized to sign certificates for shares on behalf of the
Company and the names and addresses of any other transfer agents or
registrars of shares of the Company.
F. A copy of the resolution of the Board of Directors of the
Company authorizing the execution of the Agreement and approving the
terms and conditions hereof, certified by the secretary of the Company.
G. In the event of any future amendment or change in respect to
any of the foregoing, prompt written notifications of such change,
together with copies of all relevant resolutions, instruments or other
documents, specimen signatures, certificates, opinions or the like, as
the agent may deem necessary or appropriate.
<PAGE>
3. The company hereby authorizes Agent to purchase stock
certificates as needed to perform regular transfer duties; such costs
being paid immediately upon notice of such purchase.
4. Transfer of shares shall be made and effected by Agent, and
shall be registered and new certificates issued upon surrender of the old
certificates, in a form deemed by Agent properly endorsed for transfer,
with all necessary endorser's signatures guaranteed in such form and
manner as Agent requires by a guarantor reasonably believed by Agent to
be responsible, accompanied by such assurances as Agent shall deem
necessary or appropriate to evidence the genuiness and effectiveness of
such necessary endorsement, and satisfactory evidence of compliance with
all applicable laws relating to collection of taxes, if any. That all
transfer of shares and issuance of certificates shall be at a fee
chargeable by Agent at his discretion. Such fee to be paid by such
person, persons, firms or corporations requesting such transfer, in advance.
5. In registering transfers, Agent may rely upon the Uniform
commercial Code, Section 17 of the Securities Code as set forth by the
Securities and Exchange Commission, or any other statute with in the
opinion of counsel protects Agent and Company for purposes of inquiry, or
in refusing registration wherein an adverse claim may require such
refusal. Issuer agrees to hold the Agent harmless from any liability
resulting from instructions issued to said Agent by Issuer.
6. Agent shall maintain customary records in connection with its
agency, all of which shall be available for examination and inspection by
the Company at all reasonable times.
7. The Company will pay a one-time set up fee. An annual fee will
be charged to maintain computerized records of the Company in an orderly
and accurate manner (see attached fee schedule), and enable Interwest
Transfer Co., Inc., to act as transfer agent or registrar, or both.
8. The Company may remove Agent at any time by giving forty-five
(45) days written notice in the form of a resolution from the Board of
Directors of the Company. Upon receipt of such proper notice, a
termination fee (see attached fee schedule) and any other bills, Agent
shall deliver to its successor, or the company, its records as Agent.
<PAGE>
9. Agent shall not be liable for any error of judgement or for any
act done or step taken or omitted by it in good faith, except its own
willful misconduct. Company does hereby agrees to indemnify and hold
harmless Agent, and each and all of its officers, directors, employees,
and agents from and against any loss, damage or expense which may arise
directly or indirectly from any actions, suits, threats of suit, or
claims of any kind or nature, other than any such resulting from the
willful misconduct of agent.
10. Company agrees to reimburse Agent for any and all expenses
resulting from the serving upon agent of a subpoena by a Federal or State
Agency or a request from one of said agencies, requiring or requesting
that agent produce information or documents to said agency. Said
expenses shall include but not be limited to travel expenses, copying
charges, computer time, employee times, etc.
11. Company agrees to pay all amounts due to agent under this
contract within 30 days of billing. Company specifically agrees that
Agent shall have a lien against all Company records to secure any amounts
owning to agent. In addition, Company specifically agrees that Agent
may, at its option, refuse to make any transfers of Company's securities
until past due accounts have been paid.
12. This agreement may not be assigned by Agent without express
prior written consent of the Company.
AGREED AND ENTERED INTO the day and year first written above.
INTERWEST TRANSFER CO., INC.
BY: /s/
------------------------------------
Netvoice Technologies, Inc.
------------------------------------
COMPANY
BY: /s/
------------------------------------
<PAGE>
CERTIFICATE OF PASSAGE OR RESOLUTION APPOINTING
TRANSFER AGENT
RESOLVED: That Interwest Transfer Co., Inc., a corporation organized and
existing under and by virtue of the laws of the State of Utah, with
offices at 1981 East 4800 South, STE 100, Salt Lake City, Utah, be and is
hereby appointed transfer agent of this Corporation, and that all
accredited officers of said Interwest Transfer Co., Inc., each of them is
hereby authorized, designated and accepted to act for and on behalf of
this Corporation as Vice President and Assistant Secretary with power
only to sign stock certificates in either capacity; and be it further
RESOLVED: That this Corporation hereby does relieve the said transfer
agent and its offices and representatives of all liability for all acts
and things done and performed by said transfer agent and its officers and
agents under orders of any officer or agent and/or representative of this
Corporation, and hereby does assume full responsibility for all such acts
and things done; and be it further
RESOLVED: That said transfer agent be, and is hereby authorized to us its
own judgment in matters affecting its duties as such agent; and in its
discretion to apply to and to act upon instructions of its own counsel or
of the counsel of this Corporation in respect to any question arising in
connection with such agency, all legal fees to be at the expense of this
Corporation, and said transfer agent is hereby relieved of any
responsibility to this Corporation, and indemnified by this Corporation
as to any responsibility to third persons, for action taken in accordance
with advice of such counsel or its own judgment. Remaining liable only
for its own willful default or misconduct; and be it further
RESOLVED, That this corporation shall, and hereby does, indemnify,
protect and hold said transfer agent harmless for any act, omission,
delay, or refusal made by it in reliance upon any stock certificate or
other instrument issued by their Corporation believed by said agent in
good faith to be valid, genuine and sufficient, and in effecting any
transfer believed by it in good faith to be duly authorized, said
transfer to retain liability in such respects only for its own willful
misconduct; and be it further
RESOLVED, That said transfer agent shall be without liability to this
Corporation, and is hereby indemnified from any liability to third party
from said agent's refusal to perform any act in connection with this
agency where, in reliance upon opinion of its counsel, said agent in good
faith believes that such act may subject it or its officers or employees
to criminal liability or injunctive sanctions under any law of any state
or of the United States and, under the Securities Act of 1933.
STATE OF Nevada
----------------------
COUNTY OF Carson
---------------------
Bill Yotty, being duly sworn deposes and says that Jim Chambas is
Secretary of Netvoice Technologies, Inc, a corporation organized and
existing under the laws of the State of Nevada, and having its principal
place of business in Dallas, TX at 13747 Montfort Drive, that Ron Vance -
Counsel has custody of the books of said corporation, and that the
foregoing is a full, true and correct copy of the Resolution adopted at a
meeting of the board of Directors of said corporation held on the 13th
day of August 1998, at Netvoice Technologies, Inc. - Dallas
WITNESS MY HAND AND SEAL OF THE CORPORATION THIS 28 DAY OF AUGUST, 1998.
/s/
-----------------------------
SECRETARY
Subscribed and sworn to before me this 28 day of August, 1998.
/s/ JOHN J. SAMARIN
-----------------------------
NOTARY PUBLIC
JOHN J. SAMARIN
COMM. #1175816
NOTARY PUBLIC-CALIFORNIA
FRESNO COUNTY
My Comm. Exp. April 3, 2002
<PAGE>
COMPANY INFORMATION LISTING
CURRENT NAME, ADDRESS & PHONE FOR COMPANY:
- -------------------------------------------------------------------------
- -------------------------------------------------------------------------
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OFFICERS:
- -------------------------------------------------------------------------
- -------------------------------------------------------------------------
- -------------------------------------------------------------------------
DIRECTORS:
- -------------------------------------------------------------------------
- -------------------------------------------------------------------------
- -------------------------------------------------------------------------
LEGAL COUNSEL REPRESENTING CORPORATION - (INCLUDE ADDRESS)
- -------------------------------------------------------------------------
- -------------------------------------------------------------------------
- -------------------------------------------------------------------------
NAMES OF PERSONS AUTHORIZED TO RECEIVE COMPANY REPORTS:
- -------------------------------------------------------------------------
- -------------------------------------------------------------------------
- -------------------------------------------------------------------------
QUARTER END & YEAR END DATES IN WHICH YOU REQUIRED REPORTS:
- -------------------------------------------------------------------------
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- -------------------------------------------------------------------------
/s/
---------------------------------
PRESIDENT
/s/
---------------------------------
SECRETARY/TREASURER
EXHIBIT 10.5
NETVOICE TECHNOLOGIES, INC.
BROKER AGREEMENT
This brokerage agreement is made this 18th date of September
1998, by and between NetVoice Technologies, Inc., ("NVT" or the
"Company"), a Nevada corporation with its principal place of business at
13747 Montfort Dr., Ste. 101, Dallas, Texas, 75240 and Unlimited Tech,
Inc., (Broker), with its principal place of business at 12790 Merit
Drive, Park Central IX, Ste. 600, Dallas, Texas, 75251.
Broker has knowledge of potential customers. The Parties
desire to combine their experience for the purpose of marketing Company's
telecommunications services ("Services") in the Territory
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants, premises and conditions set forth herein, Company and Broker
intending to be legally bound agree as follows:
1. Definitions
-----------
As used in this Agreement, the following terms shall have the
following meanings:
1.1 CUSTOMER. "Customer" shall mean entities located in the
Territory which enter into a contractual relationship with Company for
the purchase of Services as a result of the efforts of Broker.
1.2 CUSTOMER CONTRACT. "Customer Contract" shall mean a contract
for the provision of Services to Customers.
1.3 SERVICES. "Services" shall be the provision of
telecommunication services.
1.4 TERRITORY. "TERRITORY" shall be as stated in Exhibit "A" to
this Agreement.
1.5 COMMISSIONS: "Commissions" are outlined in Exhibit "A" to this
Agreement.
2. Scope and Purpose of the Brokerage Agreement
--------------------------------------------
Company and Broker hereby agree to undertake a brokerage
arrangement for the purpose of pursuing and developing telecommunication
business to and for companies having a principal place of business in the
Territory.
3. Nonexclusive Agreement
----------------------
The Agreement is a nonexclusive brokerage agreement between the
Parties. Accordingly, Company shall have the right to enter into
agreements with Parties other than Broker, with respect to the sale of
Services, and Broker shall have the right to enter into other agreements
with Parties other than Company, with respect to the sale of services
similar to the Services.
4. Relationship of the Parties
---------------------------
4.1 The relationship of Company and Broker under this Agreement is
that of independent contractors and that relationship shall continue as
such throughout the term of this Agreement and any extension thereof. It
is further agreed that nothing contained in this Agreement shall be
construed to Constitute either Party as a partner, officer, employee or
agent of the other, and no officer, employee or agent of either Party
shall be or be deemed to be the officer, employee or agent of the other.
<PAGE>
4.2 Broker shall not have the authority to make any agreement or
commitment, nor incur any liability on behalf of Company, nor shall
Company be liable for any acts, omissions to act, contracts, commitments,
promises or representations made by Broker, except as specifically
authorized in this Agreement or as the Parties may hereafter agree in writing.
4.3 Company represents and warrants that it has all necessary
rights, including but not limited to property, patent, trademark and
other intellectual property rights, to enable it and Broker to carry out
their respective rights under this Agreement or any Customer Contract.
In the event Broker or its customers are enjoined from their use of
Company products due to a proceeding based upon any infringement of any
patent, trademark, copyright or trade secret Company shall have the
following options:
(i) Promptly render the Company product non-infringing and capable
of providing services as intended; or
(ii) Procure for Customer the right to continue using the Company
product; or
(iii) In the event that none of the foregoing options is available,
remove the Company product or services and refund the purchase price
thereof less depreciation for use, if any.
4.4 (a) Each Party hereto agrees to indemnify and hold the other
Party harmless against and from any and all losses, claims, damages or
liabilities, joint or several, including reimbursement for legal
expenses, under any statute, code, at common law, or otherwise, to which
the other party may become subject as the result of acts, whether of
commission or omission, by the offending Party in connection with any of
the transactions contemplated by this Agreement, provided however, that
the offending Party shall be liable in any such case only to the extent
that any such loss, claim, damage or liability (i) is found in a final
judgment by a court to have resulted from a violation of law by the
offending party in connection with the performance of its duties
hereunder; (ii) results from that Party's gross negligence or gross
misfeasance in performing under this Agreement or under any Customer
Contract; or (iii) results from the offending Party's material breach of
any representation, warranty, covenant or agreement pertinent to this
Agreement or to any Customer Contract.
(b) The indemnity provisions, as set forth in this Article 4
shall survive the termination of this Agreement for any reason.
5. Responsibilities of the Parties
-------------------------------
5.1 AS TO BROKER. Broker shall undertake research for the
purpose of identifying entities having a place of business in the
Territory and which offer a promising marketing opportunity for Company's
Services. Broker shall provide to Company all support as reasonably
appropriate throughout the marketing and proposal stages of business
development. Broker shall at all times retain the right, solely or
jointly with any other party, to pursue other opportunities.
5.2 AS TO COMPANY. Company can serve as proposal manager for
the preparation of proposals submitted to major targeted
customers hereunder. Company shall serve as prime contractor
on contracts awarded pursuant to the agreement or proposal.
Broker shall have the opportunity to propose its services to
Company on any such contract and in the event that Company
determines it has a need for such services, Company shall
accept Broker's services at it's sole discretion.
5.3 JOINTLY. In accordance with the marketing plan developed by
the Parties. Each Party agrees to confer with the other as to the means
by which they shall market, promote, and solicit targeted entities to
purchase Company's Services. Such efforts shall include the commitment
by each Party of sales, technical and executive management resources.
2
<PAGE>
5.4 DISCLOSURE OF THIRD PARTY BROKERS. The Company requires that
any third party broker that becomes involved in selling the Company's
products and services through the Broker, be fully disclosed. The
Company's obligations are directed solely to the Broker and the Company
has no obligations to any third party. The Broker must adhere to the
obligations and terms of this Agreement and take responsibility for any
third party relationships.
5.5 CONTRACTS. Within ten days of the execution of this Agreement,
each Party shall designate an individual to serve as a principal point of
contact for communication with the other Party and for coordinating the
Party's activities related to the Agreement. Any change in the
designated point of contact shall be communicated promptly to the other Party.
6. Payment Terms
-------------
6.1 In consideration of Broker's efforts to obtaining Customers for
Company, Company agrees to pay to Broker a fee based upon the funds
received by Company from Customers that which Customer Contacts were
entered into during the term of this Agreement as shown on Exhibit A
attached hereto.
6.2 Payments shall be made monthly, within thirty days of the close
of a calendar month, based upon actual Customer Payments received by
Company within such calendar month.
6.3 All payments hereunder shall be made in U.S. dollars, and shall
be made by check or bank transfer to the order of Broker.
6.4 Notwithstanding the termination of this Agreement for any
reason, Broker shall continue to receive the commissions provided herein,
except that such commissions shall be based on Customer Payments
generated solely by Customer Contracts entered into prior to such
termination. Payments will only be made to the named party as stated on
this Agreement. All other terms and conditions of payment as provided
herein shall continue to apply.
6.5 Each Party shall pay all costs and expenses associated with
discharging its responsibilities under this Agreement.
7. Compliance with Laws
--------------------
7.1 The Parties agree that in carrying out their duties and
responsibilities under this Agreement, they will neither undertake nor
cause nor permit to be undertaken, any activity which either (i) is
illegal under any laws, decrees, rules or regulations in effect in the
Territory; or (ii) would have the effect of causing the other party to be
in violation of any laws, decrees, rules or regulations in effect in the
Territory.
7.2 The Parties agree that in connection with this Agreement, they
will not, directly or indirectly, give, offer or promise, or authorize or
tolerate to be given, offered or promised, anything of value to any
government official or employee with the intent to (i) influence any
official act or decision of such official or employee, or (ii) induce
such official or employee to use his influence to affect or influence any
act or decision of a government or of any subdivision thereof, in order
to assist either Party in obtaining or retaining business or in directing
business to any person.
7.3 Each party agrees to notify the other Party immediately of any
extortive solicitation, demand or other request for anything of value, by
or on behalf of any official or employee of any government or of any
subdivision thereof, relating to the subject matter of this Agreement.
8. Export/Re-export of U.S. Origin Technology
------------------------------------------
3
<PAGE>
8.1 All technology, data, or goods provided by Company in pursuit
of or in performance of a contract award are of United States origin.
Broker agrees that no U.S. origin technology, data, or goods provided in
fulfillment of this Agreement or any resulting contract will be
transmitted or communicated outside the United States or to any foreign
person, whether within or outside the United States ("exported" or
"reexported"), either directly or through other Parties, by Broker
without prior receipt of any necessary U.S. government approvals.
8.2 Broker agrees to make native inquiry or to cause any targeted
foreign-owned customer to make inquiry to Company as to the necessity of
the approvals called for by this Article. Company will exercise its best
efforts to obtain the necessary U.S. Government approvals. Broker will
cooperate fully with Company to furnish any information or to perform any
task which is requisite to such U.S. Government approval. Company shall
not be liable in any way for delays in obtaining U.S. Government approval
for the export or reexport of U.S. origin data or goods, nor shall
Company be liable for the U.S. Government's denial of such approval.
8.3 Notwithstanding any other provision in this Agreement, each
Party hereby indemnifies, holds harmless, assumes legal liability for,
and agrees to defend the other, its agents, employees, officers and
directors from any and all costs and expenses, including but not limited
to attorneys' fees, and all other sums which such other Party may pay or
become obligated to pay, on account of any, all, and every demand or
claim, or assertion of liability, or any claim or action founded thereon,
arising out of a breach of the indemnifying Party's obligations under
this Article 8.
9. Confidentiality of Information and Public Disclosure
----------------------------------------------------
The Non Disclosure Agreement of even date herewith, by and
between the Parties hereto, is hereby made a part of this Agreement with
full force and effect and is appended hereto as Attachment 1. The
aforesaid Non Disclosure Agreement shall survive termination of this
Agreement for any reason.
The parties agree not to disclose any of the terms and
conditions of this Agreement without the express written consent of the
other party, except as may be required by law or governmental rule or
regulation, or to establish either party's rights under this Agreement,
provided, however, that if one party seeks to disclose for reasons not
requiring the other party's consent, that party will limit the disclosure
to the extent required, will allow the other party to review the
information disclosed and will apply where available, for
confidentiality, protective orders and the like. Any review under this
paragraph will not be construed to make the reviewing party responsible
for the content of any disclosure.
10. Term and Termination
--------------------
10.1 TERM. This Agreement shall become effective upon execution by
both Parties and shall continue in full force and effect for
the agreed period of thirty-six (36) months from the date first
written above, and shall be automatically renewed thereafter
for successive twelve (12) month periods, unless terminated
earlier by the mutual agreement of the Parties or in accordance
with the provisions set forth in Subparagraph 10.3 herein.
10.2 COMMISSIONS. Company agrees to pay Broker the fees according
to the schedule set forth in Exhibit A. All monies paid to
Broker shall be based solely upon payments which Company
collects from such reseller. In the event that a reseller
delays or forfeits payment to Company for any reason, or
defrauds Company in any way, Company is in no way financially
responsible to Broker for any delayed or lost commissions
related to that reseller. Broker will be entitled to any and
all above stated commissions for as long as this Agreement with
Broker is in effect and Broker is not in breach thereof.
4
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10.3 TERMINATION. Either Party shall have the right to terminate
this Agreement for "cause" at any time, by giving written notice to the
other party in the event that the other party: (i) commits a noncurable
default or violation of this Agreement; or (ii) commits a curable default
or violation of this Agreement which is not remedied within thirty days
after written notice thereof.
Arbitration
-----------
11.1 Any dispute, controversy or claim between Company and Broker
arising out of or relating to this Agreement, or the breach, termination
or validity thereof shall be finally settled by arbitration, conducted on
a confidential basis, under the Federal Arbitration Act, if applicable,
and the then current Commercial Arbitration Rules of the American
Arbitration Association (Association). The arbitrators shall determine
the matters in dispute strictly in accordance with the term of this
Agreement and the substantive domestic law of the State of Texas,
excluding its principles of conflicts of laws.
11.2 The arbitration shall be conducted by three arbitrators at the
Association's regional office located nearest to Dallas, Texas. Each
Party shall choose one arbitrator and the chosen arbitrators shall select
a third arbitrator.
11.3 The award of the arbitrators shall be the sole and exclusive
remedy between the Parties regarding any claims, counterclaims, issues or
accountings presented or pled to the arbitrators, provided that the
arbitrators shall have no authority to award punitive damages or any
other form of noncompensatory damages. Judgment upon the arbitrators'
award may be entered and enforced in any court of competent jurisdiction.
Each Party shall bear its own cost of the arbitration, including but not
limited to the cost of attorney's fees, and each shall bear one-half of
the cost of the arbitrators' fees.
11.4 Neither Party shall institute a proceeding hereunder unless at
least sixty days prior thereto such Party shall have furnished to the
other party written notice by certified mail of its intent to do so.
Notice to either Party shall be addressed to the point of contact
designated pursuant to Subparagraph 5.4 herein.
11.5 Neither Party shall be hereby excluded from seeking provisional
remedies in the courts of any jurisdiction including, but not limited to,
temporary restraining orders and preliminary injunctions, to protect its
rights and interest, but shall such not be sought as a means to avoid or
stay arbitration.
12. Non-solicitation of Employees
-----------------------------
During the term of this Agreement, no organizational unit of
either Party working under this Agreement shall solicit employees of the
other Party's organizational unit working under this Agreement without
the other Party's prior written authorization.
13. Entire Agreement
----------------
Each party acknowledges that it has read this Agreement, fully
understands it, and agrees to be bound by its terms and further agrees
that it is the complete and exclusive statement of the agreement between
the Parties, which supersedes and merges all prior proposals,
understandings and all other agreements, oral and written, between the
Parties relating to the subject matter of this Agreement. This Agreement
cannot be modified or altered except by a written instrument duly
executed by authorized executive officers of both Parties.
14. Assignment
----------
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This Agreement may not be assigned by Broker whether by merger,
acquisition, consolidation, operation of law or otherwise without the
prior written consent of an authorized executive officer of Company.
15. Governing Law
-------------
This Agreement shall be governed by the laws of the State of
Texas excluding its principles of conflicts of laws and the Parties
hereto irrevocably commit to the jurisdiction and venue of the United
States federal district court for the District of Texas to resolve any
disputes arising hereunder and related hereto.
16. Waiver
------
No delay or omission by either Party hereto to exercise any
right or power hereunder shall impair such right or power or be construed
to be a waiver thereof. A waiver by either of the Parties hereto of any
of the covenants to be performed by the other or any breach thereof shall
not be construed to be a waiver of any succeeding breach thereof or of
any other covenant herein contained. All remedies provided for in this
Agreement shall be cumulative and in addition to and not in lieu of any
other remedies available to either Party at law, in equity or otherwise.
17. Separability
------------
If any provision of this Agreement is declared or found to be
illegal, unenforceable or void, then both Parties shall be relieved of
all obligations arising under such provision, but only to the extent that
such provision is illegal, unenforceable or void, it being the intent and
agreement of the Parties that this Agreement shall be deemed amended by
modifying such provision to the extent necessary to make it legal and
enforceable while preserving its intent or, if that is not possible, by
substituting therefor another provision that is legal and enforceable and
achieves the same objective. If such illegal, unenforceable or void
provision does not relate to the payments to be made to Company hereunder
and if the remainder of this Agreement shall not be affected by such
declaration or finding and is capable of substantial performance, then
each provision not so affected shall be enforced to the extent permitted
by law.
18. Background, Enumerations and Headings
-------------------------------------
The "Background," enumeration's and headings contained in this
Agreement are for convenience of reference only and are not intended to
have any substantive significance in interpreting this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement under
seal effective the date first written above.
NetVoice Technologies, Inc. Unlimited Tech, Inc.
By: /s/ BILL BEDRI By: /s/ JACK PILON
-------------------------- -----------------------------
Print Name: Bill Bedri Print Name: Jack Pilon
------------------ ---------------------
Title: President & CFO Title: President
----------------------- --------------------------
Date: 9/18/98 Date: 9-18-98
------------------------- ---------------------------
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Exhibit A
Territory: (list specific accounts, market segment and or territory)
_______________________________________________________________________
Target Customer(s) Name* Address/City/Telephone No.
* Company will allow a maximum timeline of 6 months for account
protection, unless prior approval. Broker must have prior relationship
with account to obtain protection.
Rates and Commissions
- ---------------------
Pre-paid Calling rates
The following rate schedule is based on face value cards at:
800/888 Access $.15/minute (up to 66 minutes per $10.0 card)
Local Access $.10/minute (up to 100 minutes per $10.00 card)
* Local service ONLY available in certain Company cities.
888 service is available throughout the 48 continental states
for origination.
* International rates, Alaska and Hawaii are priced per minute
according to the published international rates provided by
Company
* A flat access charge of $.45 per call is accessed to the pre-paid
calling card using the 800/888/877 access number. This
covers FCC imposed payphone charges, local access fees and
international connection.
* Billing increments: 1 minute (60 seconds)
* Cards expire six (6) month from activation
* Price includes the cost of the card (standard stock).
Customized cards have a minimum quantity of 10,000 cards and
set-up costs associated. Contact Company for pricing and terms.
Brokerage Commissions
The fee to be paid by Company to Broker pursuant to Subparagraph 6.1
herein as follows:
On-Net Access: Broker to receive prepaid rate per minute less
$.065 per minute
Off-Net Access: Broker to receive prepaid rate per minute less
$.115 per minute
International Broker to receive commission equal to 15% of
prepaid rate per minute plus 50% of per call
surcharge if applicable (To be determined by Broker)
7
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Rechargeable Accounts:
Company will offer a rechargeable program. This program is optional
to the reseller. All recharges handled through Company customer service
or through Company website at www.netvoice.net. The above commissions
are applicable on all recharge sales.
Hardware:
Direct Sale of terminals:
Company will provide prepayer terminals to Broker under the
following schedule. Terminals will be automatically priced at 1000 unit
price ($250.00) for the initial six month period of this Agreement, after
which pricing shall be per quantity actually attained.
1 - 499 terminals: $350.00 each
500-999 " 300.00 "
1000+ " 250.00 "
This does include any optional equipment.
Monthly Prepayer Service Fee: $19.95 per month
Company shall pay broker 50% of monthly prepayer service fee.
Optional Products and Services
Pricing for various POS items, signage, card inventories, etc.,
shall be as agreed upon under separate cover between Company and Broker.
On-Net Cities as of the date of this Agreement:
Texas: Dallas, Ft. Worth, Houston, Austin, San Antonio
Oklahoma: Oklahoma City, Tulsa
NetVoice Technologies, Inc. Unlimited Tech, Inc.
By: /s/ BILL BEDRI, Pres. By: /s/ JACK PILON, Pres.
-------------------------- -----------------------------
Date: 9/18/98 Date: 9-18-98
------------------------- ---------------------------
8
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Attachment 1
MUTUAL NON-DISCLOSURE AGREEMENT
NetVoice Technologies, Inc., with offices located at 13747 Montfort
Dr.,Ste. 101, Dallas, Texas 75240, for itself and its affiliated
companies ("Company"), and Unlimited Tech, Inc. with offices at 12790
Merit Dr., Park Central IX, Ste. 600, Dallas, Texas, 75251, for itself
and its affiliated companies ("Broker"), in consideration of the mutual
covenants of this Agreement, hereby agree as follows:
1. In connection with ongoing discussions between Broker and
Company concerning possible transactions (the "Transactions"), each party
to this Agreement may wish to disclose certain proprietary and
confidential information to the other party on a confidential basis.
Such proprietary or confidential information ("Information") includes any
and all technical and non-technical information, including without
limitation, information concerning financial, accounting or marketing
reports, business plans, analysis, forecasts, predictors, intellectual
property, trade secrets and know-how disclosed in connection with the
Transactions. "Information" may take the form of documentation,
drawings, specifications, software, technical or engineering data and
other forms, and may be communicated orally, in writing, by electronic or
magnetic media, by visual observation and by other means. "Information"
includes any reports, analysis, studies or other material, whether
prepared by the receiving party or otherwise, that contains or are based
upon proprietary or confidential information covered by this Agreement.
2. "Representatives" means the controlled affiliates of either
party, and the respective directors, officers, employees, attorneys, s
and other agents and advisors of either party or of the controlled
affiliates of either party. Each party shall be responsible for any
breach of this Agreement by its respective Representatives and shall take
all reasonably necessary measures to restrain its Representatives from
unauthorized disclosure or use of information.
3. All information which is disclosed by one party to the other in
connection with discussions relating to the Transactions, whether before
or after the date of execution of this Agreement, shall automatically be
deemed proprietary or confidential and subject to this Agreement unless
otherwise confirmed in writing by the disclosing party. In addition, the
existence and terms of this Agreement, and the fact and substance of
Company's discussions and correspondence with Broker relating to the
Transactions, including the identification of either party by name or
identifiable in connection with the parties' participation in such
process, shall be deemed information of both parties and shall not be
disclosed by either party without the consent of the other party.
4. With respect to information disclosed under this Agreement, the
party to whom the information is disclosed and its Representatives shall:
a. hold the information in confidence, exercising a
degree of care not less than the care used by such
party to protect its own proprietary or confidential
information that it does not wish to disclose, and in
no event less than a reasonable degree of care;
b. restrict disclosure of the information solely to
those Representatives with a need to know and not
disclose it to any other person;
c. advise those Representatives of their obligations
with respect to the information; and
d. use the information only in connection with
continuing discussions by the parties concerning the
Transactions, except as may otherwise be mutually
agreed upon in writing, and shall reproduce such
information only to the extent necessary for such purpose.
9
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5. Information shall be deemed the property of the disclosing
Party and, within ten (10) business days upon written request from the
disclosing party, the other party will return all such information
received in tangible form to the disclosing party or will destroy all
such information.
6. The party to whom information is disclosed shall have no
obligation to preserve the proprietary or confidential nature of any
information which:
a. was previously known to such party free of any
obligation to keep it confidential; or
b. is or becomes publicly available by means other than
unauthorized disclosure; or
c. is developed by or on behalf of such party
independent of any information furnished under this
Agreement; or
d. is received from a third party whose disclosures does
not violate any confidentiality obligation.
7. Neither this Agreement, nor the disclosure of Information under
this Agreement, nor the ongoing discussions and correspondence by the
parties concerning the Transactions or any other matter, shall constitute
or imply any promise or intention to make any purchase or use of
products, facilities or services by either party or its affiliated
companies or any commitment by either party or its affiliated companies
with respect to any other present or future transaction. If, in the
future, the parties elect to enter into binding commitments relating to
the Transactions or any transaction, such commitments will be explicitly
stated in a separate written agreement executed by both parties, and the
parties hereby affirm that they do not intend their discussions,
correspondence, and other activities to be construed as forming a
contract relating to the Transactions or any other transaction without
execution of such separate written agreement.
8. Each party retains the right, in its sole discretion, to
determine whether to disclose its information to the other party, and
disclosure of information of any nature shall not obligate the disclosing
party to disclose any further information.
9. Each party (a) acknowledges that neither makes any
representatives or warranty (express or implied) as to the accuracy or
completeness of any information, and (b) agrees to assume full
responsibility for all conclusions it may derive from the information.
Each party hereby expressly disclaims any and all liability that may be
based, in whole or in part, on any information, errors therein or
omissions therefrom.
10. In the event that the receiving party or its employees or
Representatives (a) need (for securities law purposes) to make
disclosures of information or (b) are required by law, regulations, or
government agency or court orders, interrogatories, requests for
information or documents, subpoenas, or civil investigative demands to
disclose any information, in the case of (a) the receiving party shall
provide the disclosing party with prompt written notice so that the
disclosing party can work with the receiving party to limit the
disclosure to the greatest extent possible consistent with legal
obligations (it being understood that disclosure of the name of the other
party will never be made without that party's prior written consent); or
in he case of (b) the receiving party shall use its reasonable efforts to
minimize such disclosure and obtain an assurance that the recipient shall
accord confidential treatment to the information, and shall notify the
disclosing party contemporaneously of such disclosure.
10
<PAGE>
11. Nothing contained in this Agreement shall be construed as
granting or conferring any rights by license or otherwise in any
information disclosed, or under any trademark, patent, copyright, mask
work or nay other intellectual property right of either party. None of
the information which may be disclosed or exchanged by the parties shall
constitute any representation, warranty, assurance, guarantee or
inducement by either party to the other of any kind, and, in particular,
with respect to the non-infringement of trademarks, patents, copyrights,
mask works or any other intellectual property right.
12. Each party agrees that it will not, without the prior written
consent of the other, transmit, directly or indirectly, the information
received from the other hereunder or any portion thereof to any country
outside of the United States.
13. This Agreement shall benefit and be binding upon the parties
hereto and their respective successors and assigns.
14. This Agreement shall be governed by and construed in accordance
with the local laws of the State of Texas without regard to conflict of
law principles.
15. This Agreement shall become effective as of the date of which
it is first executed below ("Effective Date"), provided that this
Agreement shall cover all information disclosed by one party to the other
whether before or after the Effective Date. Disclosures of information
under this Agreement may take place for a period (the "Information
Disclosure Period") of two (2) years after the Effective Date. The
obligations of the parties contained in Paragraphs 5, 10 and 12 shall
survive and continue beyond the expiration of the Information Disclosure
Period by a further period of two (2) years.
16. Each party agrees that the disclosing party wold be irreparably
injured by a breach of this Agreement by the receiving party or its
Representatives and that the disclosing party shall be entitled to
equitable relief, including injunctive relief and specific performance,
in the event of any breach of the provisions of this Agreement. Such
remedies shall not be deemed to be exclusive remedies for a breach of
this Agreement, but shall be addition to all other remedies available at
law or in equity.
17. This Agreement (a) constitutes the entire understanding between
the parties with respect to information provided in connection with the
Transactions, (b) supersedes all prior agreements between the parties
with respect to information provided in connection with discussions
relating to the Transactions and (c) shall bind each party with respect
to all information received by it prior to the expiration of the
Information Disclosure Period. No amendments or modification of this
Agreement shall be valid or binding on the parties unless made in writing
and executed on behalf of each party by its duly authorized representative.
IN WITNESS WHEREOF, each party has caused this Agreement to be
executed on its behalf as of the Effective Date.
NetVoice Technologies, Inc. Unlimited Tech, Inc.
By: /s/ BILL BEDRI By: /s/ JACK PILON
-------------------------- -----------------------------
Print Name: Bill Bedri Print Name: Jack Pilon
------------------ ---------------------
Title: President & CFO Title: President
----------------------- --------------------------
Date: 9/18/98 Date: 9-18-98
------------------------- ---------------------------
11
EXHIBIT 10.6
CARRIER SERVICE AGREEMENT
This CARRIER SERVICE AGREEMENT (the "Agreement"), dated as of Oct.
8, 1999, by and between NetVoice Tech, a Nevada corporation ("Company"),
located at 13747 Montfort Dr., Suite 250, Dallas, TX 75240 and IDT
Corporation, a Delaware corporation ("Customer"), located at 190 Main
Street, Hackinsack, New Jersey, 07601, sets forth the terms and
conditions upon which Company shall provide and Customer shall purchase
the wholesale telecommunications services set forth below. In
consideration of the mutual covenants contained in this Agreement and
intending to be legally bound, the parties (individually "Party" and
collectively the "Parties") agree as follows:
ARTICLE 1
PROVISION OF SERVICES
1.1 PURCHASE AND SALE OF SERVICES Company agrees to provide wholesale
telecommunication services (the "Services") at the rate set forth in the
attached exhibit(s) (the "Exhibits") and more fully described herein.
Customer will deliver its calls or other enhanced services to Company's
switching site(s) at its own expense. Customer will interconnect with
Company via dedicated 1.544 megabyte circuits ("DS1") at Company's
switching site(s). All rates set forth in the Exhibits are for services
offered free on board ("f.o.b.") the designated switching site(s) set
forth therein, and include the cost to terminate the calls or other
services on their destination, unless otherwise stipulated or specified.
Company reserves the right to adjust its rates and charges upon thirty
(30) days prior written notice to Customer. Customer shall have the
right to terminate this Agreement upon receipt of such notice without
further obligation or penalty. International rates are determined on a
per country basis as set forth in the Exhibits attached hereto.
International rates are shown in terms of full minutes and are billed in
six (6) second increments after the initial thirty (30) second call
duration with the exception of calls to Mexico which are billed in sixty
(60) second increments with a minimum call duration of sixty (60)
seconds. Availability of Services is dependent upon the availability of
________ within each country. Company may offer rate decreases or
additional services effective immediately upon written notice to Customer.
1.2 SYSTEM MAINTENANCE Company will use its best efforts to ensure that
all systems utilized hereunder will be maintained in accordance with
industry standards. In the event that system maintenance requires the
interruption of Service, Company shall notify Customer of such
interruption in Service at least forty-eight (48) hours in advance of
such interruption and Company shall use its best efforts to repair the
system and rectify the problem within a reasonable period of time.
Customer reserves the right to terminate this Agreement in its sole
discretion if quality of service falls below industry standards.
1.3 LICENSES Each Party is responsible for obtaining and maintaining, at
its own cost, all licenses, approvals and other authorizations necessary
or appropriate for the provision and/or resale of Services.
ARTICLE II
PAYMENT TERMS
2.1 SERVICES Company shall invoice Customer for all charges for Services
on a weekly basis every Monday. All undisputed amounts stated on each
invoice will be due within three (3) business days of receipt of the
invoice (the "Due Date") via wire transfer. All payments under this
Agreement will be made in U.S. dollars via wire transfer. In no event
shall the liability of Customer exceed the undisputed amount payable
hereunder for Services rendered.
2.2 TAXES All Services under this Agreement are provided exclusive of
any applicable federal, state, local, or foreign taxes, duties, or
charges imposed by any governmental authority.
2.3 DISPUTED CHARGES All undisputed amounts must be paid in full by the
Due Date. In the event Customer disputes any amount stated on an
invoice, Customer shall notify Company in writing of such
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dispute within forty five (45) days of receipt of the applicable invoice
and shall provide Company with such documentation as may be reasonably
required to receive the dispute. Customer and Company will exercise
reasonable, good faith efforts to resolve the disputed charges within
forth five (45) days of receipt of Customer's written notice of the
dispute. In the event the parties are unable to resolve the dispute
within such time, the matter shall be escalated to senior executives
and/or counsel authorized to settle such matters. If the dispute is not
resolved within forty-five (45) days from the date of escalation, the
parties are entitled to their remedies at law.
2.4 LATE FEES Any payments not received by the Due Date will bear
interest at a rate of one percent (1%) per month from the Due Date until
paid in full.
ARTICLE III
TERM AND TERMINATION
3.1 TERM This Agreement will commence on the date first written above
and will continue for a period of one (1) year (the "Initial Term").
This Agreement shall automatically continue beyond the Initial Term on a
month-to-month basis unless terminated by either Party upon thirty (30)
days prior written notice.
3.2 TERMINATION This Agreement will terminate prior to the expiration of
the then-current term upon the happening of any of the following events:
3.2.1 A material breach of this written Agreement by either Party
and the breaching Party fails to cure the breach within thirty (30)
calendar days after written notice of the breach from the non-breaching
Party, unless a breach under 2.1 in which Company may terminate upon
three (3) days written notice.
3.2.2 Either Party voluntarily files a bankruptcy petition, or if
such Party makes an assignment for the benefit of creditors, or
consents to or acquires in the appointment of a trustee, receiver,
or liquidator of it or of all or any substantial part of its assets
and properties, or takes or suffers similar action in consequence of
indebtedness.
3.2.3 A petition in bankruptcy is filed against either Party or,
without the Party's consent or acquiescence, a trustee, receiver or
liquidator of it or of all or any substantial part of its assets and
properties is appointed and such condition is not dismissed or
vacated within thirty (30) days thereunder.
3.2.4 If, in Customer's reasonable and sole discretion, the
Services are not of a quality consistent with industry standards or
if Company interrupts Service and fails to restore or maintain its
network in accordance with paragraph 1.2 above.
ARTICLE IV
INDEMNIFICATION
4.1 INDEMNITY The Parties shall indemnify, defend, release and hold
harmless such other and all of their officers, agents, directors,
shareholders, subcontractors, subsidiaries, employees and other
affiliates (collectively "Affiliates") from and against any action,
claim, court cost, damage, demand, expense, liability, loss, penalty,
proceeding, suit, cost or attorney's fees imposed upon either Party by
reason of damages to property or bodily injuries, including death, as a
result of an intentional or negligent act or omission on the part of
either Party or any of its Affiliates in connection with the performance
of this Agreement or other activities relating to the property and/or
facilities which are the subject of this Agreement. The Parties hereby
indemnify and hold harmless each other from any claims by any of its
customers, and users or subscribers.
2
<PAGE>
ARTICLE V
CONFIDENTIALITY
5.1 CONFIDENTIALITY The Parties hereto hereby acknowledge that during
the course of this Agreement, either Party may acquire information
regarding the other or its affiliates, its business activities and
operations or those of its customers and suppliers, and its trade secrets
including without limitation its customer lists, prospective customers,
rates, network, configuration, traffic volume, financial information,
computer software, service, processors, methods, knowledge, research,
development or other information of a confidential and proprietary nature
(hereinafter "Confidential Information"). Each Party shall hold such
information in strict confidence and shall not reveal the same, except
for any information which is: (a) generally available to or known to the
public; (b) known to such Party prior to the negotiations binding to this
Agreement; (c)independently developed by such Party outside the scope of
this Agreement; or (d) lawfully disclosed by or to a third party or
tribunal. The recipient of the Confidential Information may disclose the
Confidential Information pursuant to any judicial or governmental
request, requirement or order provided, however, the recipient takes all
reasonable steps to provide prompt and sufficient notice to the
disclosing Party so that the disclosing Party may contest such request,
requirement or order. The Confidential Information or each Party shall
be safeguarded by the other to the same extent that it safeguards its own
confidential materials or data relating to its own business.
ARTICLE VI
MISCELLANEOUS
6.1 USE OF NAME Each Party agrees that, without the other Party's
written consent. It will not use the names, service marks or trademarks
of the other Party or of any of its affiliated companies in any
advertising, publicity releases or sales presentations. Each Party
agrees it will not take any actions which will to any manner compromise
the registered trademarks and/or service marks of the other Party or its
affiliates.
6.2 LIMITATION OF LIABILITY COMPANY'S LIABILITY HEREUNDER IS LIMITED TO
DIRECT DAMAGES ONLY. COMPANY WILL NOT BE RESPONSIBLE FOR CONSEQUENTIAL,
INCIDENTAL, SPECIAL OR INDIRECT LOSS OR DAMAGE OF ANY KIND. COMPANY
SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY LOSS, COST OR EXPENSE ARISING
FROM THE DELAY OF ANY TELEPHONE OPERATING COMPANY, LOCAL EXCHANGE
CARRIER, OR ANY OTHER THIRD PARTY, ABSENT GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT ON THE PART OF COMPANY.
6.3 FORCE MAJEURE Notwithstanding anything to the contrary herein,
COMPANY shall not be liable to CUSTOMER or any other person or entity for
damages, or deemed to be in breach of this Agreement, due to causes
outside of COMPANY's reasonable control, including, without limitation,
acts of God, fire, explosion, vandalism, storm or other natural
occurrences; any law, order, regulation, direction, action or request of
the United States government or of any government (including without
limitation, state and local governments having jurisdiction over any of
the parties) or of any department, agency, commission, court, bureau,
corporation or other instrumentality of any one or more of such
governance, or of any civil or military authority; national emergencies;
___________; riots; wars; strikes; lockouts; work stoppage or other such
labor difficulties; or any act or omission of any other person or entity.
If an event of force majeure continues for a period of thirty (30) days
or more either party may terminate this Agreement.
6.4 TAX EXEMPTION CERTIFICATE Should CUSTOMER claim an exemption from
any sales, use, or other tax, the CUSTOMER shall provide such exemption
information to COMPANY upon reasonable request. It will be the
responsibility of CUSTOMER to make sure that its proof of exemption
remains current. In no event shall COMPANY be liable for any taxes due
by CUSTOMER and CUSTOMER hereby indemnifies COMPANY against any such
claims for taxes by any tax in authority or party acting on behalf of
such taxing authority.
6.5 REGULATORY CHANGES In the event of any regulatory, judicial, or
legislative body having jurisdiction over
3
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the way in which services referenced herein are provided, materially
changes the scope, terms, or operating conditions of this agreement,
either company may terminate this agreement in its sole election without
penalty.
6.6 INDEPENDENT CONTRACTORS It is expressly understood that the Parties
hereto are acting hereunder as independent contractors and under no
circumstances shall any of the employees of one Party be deemed to be
employees of the other for any purpose. This Agreement shall not be
construed as authority for either Party to act on behalf of the other in
any agency or other capacity or to make commitments of any kind for the
account of or on behalf of the other Party except to the extent and for
the purposes expressly provided for and set forth herein.
6.7 WAIVER The failure of either Party to give notice of default or to
enforce compliance with any of the terms or conditions of this Agreement,
the waiver of any term or condition of this Agreement, or the granting of
an extension of time for performance, will not constitute a permanent
waiver of any term or condition of this Agreement, and this Agreement and
each of its provisions will remain at all times in full force and effect
until modified by both Parties in writing.
6.8 AMENDMENTS AND MODIFICATIONS This Agreement shall not be valid until
signed and adopted by a signatory duly authorized to legally bind the
Parties hereto. No change, amendment, modification, termination or
attempted waiver of any of the provisions set forth herein in shall be
binding unless made in writing and signed by a duly authorized
representative of both Parties hereto, and no representation, promise,
inducement or statement of intention has been made by either Party which
is not embodied herein.
6.9 ASSIGNMENT Neither Party will assign this Agreement or any rights
under this Agreement without the prior written consent of the other
Party, which consent will not be unreasonably denied or withheld, except
that each Party may assign or transfer this Agreement, in whole or in
part, to any of its affiliates or to any wholly owned subsidiary without
the consent of the other Party. Subject to the foregoing, this Agreement
will be binding upon and inure to the benefit of the Parties hereto and
their respective successors or assigns.
6.10 NOTICES Any notices, approval, request, authorization, direction or
other communication under this Agreement will be given in writing and
will be deemed to have been delivered and given for all purposes upon
receipt only when mailed first class mail or by nationally recognized
overnight courier service, duly addressed and with proper postage, to he
address set forth below or such other address as may be provided by the
other Party in writing for the purpose of receiving such notice. Either
Party may change its address specified above by giving the other Party
notice of such change in accordance with this paragraph. All notices
required under this Agreement shall be addressed as follows:
If to Company: NetVoice Technologies, Inc.
--------------------------------
13747 Montfort Drive
--------------------------------
Suite 250
--------------------------------
Dallas, TX 75240
--------------------------------
Attn: Garth Cook
--------------------------------
If to Customer: IDT Corporation
190 State Street
Hackensack, NJ 07601
Attention: Mr. Geoffrey _________________
with a copy to the General Counsel of Company at the
same address above
6.11 JURISDICTION This Agreement and the relationship between the
Parties hereto will be governed by the laws of the State of New Jersey.
Both Parties consent to said jurisdiction and venue in the courts of New
Jersey.
4
<PAGE>
6.12 SEVERABILITY In the event a court of competent jurisdiction
determines that any part or provision of this Agreement is invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other part or provision of this Agreement.
6.13 HEADINGS The article and paragraph headings used herein are for
reference purpose only, and shall not in any way affect the meaning or
interpretation of this Agreement and the terms and provisions herein.
6.14 COUNTERPARTS This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which taken together
will constitute one and the same instrument.
6.15 NON-EXCLUSIVITY Nothing in this Agreement will prevent Company or
Customer from entering into similar arrangements with any other person or
entity.
6.16 ENTIRE AGREEMENT This Agreement, including any exhibits attached
hereto, sets forth the entire agreement and understanding of the Parties
hereto and supersedes and ______ any and all prior proposals,
negotiations, representations, agreements, arrangements or
understandings, both oral and written, relating to the subject matter
hereof. The Parties hereto have not relied on any proposal, negotiation
or representation, whether written or oral, that is not expressly set
forth herein.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first written above.
Company Customer
/s/ GARTH COOK /s/ GEOFFREY _______
- ----------------------------- ----------------------------
By: Garth Cook By: Geoffrey _______
Title: CFO Title: Senior Vice President - Telecom
5
EXHIBIT 10.7
CARRIER SERVICE AGREEMENT
This Service Agreement ("Agreement") is made as of the 7th day of
September, 1999 ("Effective Date"), by and between NetVoice Technologies,
Inc. (NVT), with its principal office at 13747 Montfort Dr., Ste. 250,
Dallas, Texas 75240, and IDS Long Distance, Inc., with its principal office
at 1525 N.W. 167th St., Ste 200, Miami, Fla 33169, hereinafter called
("CUSTOMER").
WHEREAS, CUSTOMER is a common carrier that has requested that NVT provide
the services described in Exhibits A and B and CUSTOMER agrees to accept
said services pursuant to the terms hereof;
NOW, THEREFORE, the parties agree as follows:
1. SERVICES. NVT agrees to furnish CUSTOMER telecommunications services
set forth in Exhibit A and Exhibit B to this Agreement, at the rates
set forth therein and subject to the terms and conditions contained in
this Agreement.
2. TERM. The term of this Agreement shall commence on the Effective Date
and will continue for a period of one (1) year. After the initial
term, this Agreement shall automatically be renewed for additional
successive one (1) year terms unless either party shall give to the
other not less than sixty (60) days written notice of termination
prior to the expiration date of the then - current term.
3. CHARGES AND PAYMENT.
3.1 All Usage Charges for services provided by NVT under this
Agreement are set forth in Exhibit A, which charges are subject
to change as hereinafter provided.
3.2 Usage Charges and other charges for services provided under this
Agreement shall be billed weekly (Monday to Sunday) and the
undisputed amount shall be paid by CUSTOMER to NVT, without
demand or setoff, within 3 days after the date of the NVT
invoice. NTVT reserves the right to cancel services immediately
if a disagreement arises on any disputed amounts.
3.3 Any undisputed amount not received by NVT on the due date
specified above will be deemed past due. Any past due amounts are
subject to a late charge in the amount of one and one-half
percent (1.5%) per month compounded monthly, or the maximum rate
allowed by law, whichever is less, from the due date until
payment is received by NVT.
3.4 In case the CUSTOMER disputes any billing of NVT, CUSTOMER must
pay the full undisputed amount within the time frames set forth
in Section 3.2. A description of the disputed billing must be
delivered to NVT in writing within 10 days of the invoice, and
Customer will set aside the disputed amount in a separate account
for up to 30 days while the Parties attempt to resolve the
dispute.
<PAGE>
3.5 NVT reserves the right to increase the Usage Charges, Monthly
Recurring Charges and service charges hereunder upon at least 15
(fifteen) days prior notice to CUSTOMER, provided CUSTOMER may
elect to terminate this Agreement without penalty in the event of
any such increase. In order to exercise such election to
terminate, CUSTOMER must give NVT written notice of such election
within (15) days after the date of the notice of increase from NVT.
3.6 NVT may require Customer to make a Deposit or an Advance Payment
or both to be held as a guarantee for the payment of charges. The
Deposit or Advance Payment shall not exceed an amount equal to
one month's estimated usage. A Deposit does not relieve the
Customer of the responsibility for the prompt payment of bills on
presentation.
In the event of cancellation, the Deposit will be applied toward
the Customer's final bill and any remainder will be returned to
the Customer within 90 days after the service has been
disconnected.
4. TAX EXEMPTION CERTIFICATE. Should CUSTOMER claim an exemption from
any sales, use, or other tax, the CUSTOMER shall provide such
exemption information to NVT. It will be the responsibility of
CUSTOMER to make sure that its proof of exempt status remains current.
In no event shall NVT be liable for any taxes due by CUSTOMER and
CUSTOMER hereby indemnifies NVT against any such claims for taxes by
any tax in authority or party acting on behalf of such taxing authority.
5. LIMITATION OF LIABILITY. NVT'S LIABILITY HEREUNDER IS LIMITED TO
DIRECT DAMAGES ONLY. NVT WILL NOT BE RESPONSIBLE FOR CONSEQUENTIAL,
INCIDENTAL, SPECIAL OR INDIRECT LOSS OR DAMAGE OF ANY KIND. NVT SHALL
HAVE NO LIABILITY WHATSOEVER FOR ANY LOSS, COST OR EXPENSE ARISING
FROM THE DELAY OF ANY TELEPHONE OPERATING COMPANY, LOCAL EXCHANGE
CARRIER, OR ANY OTHER THIRD PARTY, ABSENT GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT ON THE PART OF NVT.
6. INDEMNIFICATION. CUSTOMER hereby indemnifies and holds harmless NVT,
its affiliates, their respective officers, directors, shareholders,
employees, agents, successors and assigns, and each of them, from and
against any and all damages, losses, claims, liabilities, demands,
charges, suits, penalties, costs of expenses, whether accrued,
absolute, contingent or otherwise, including but not limited to court
costs and attorney's fees, which any of the foregoing may incur or to
which any of the foregoing may be subjected, arising out of or
otherwise based upon any of the following:
6.1 Any breach or default by CUSTOMER under any of the provisions of
this Agreement or of any other agreement or instrument to which
NVT or an affiliate is a party or which is in favor of NVT or an
affiliate of NVT;
6.2 Claims of any third person or entity for libel, slander,
infringement of copyright, or unauthorized use of trademark,
trade name, or service mark arising out of material, data,
information, or other content transmitted by CUSTOMER over NVT's
networks; or
6.3 Any act or omission of CUSTOMER or its agents, servants,
employees, contractors, or representatives.
2
<PAGE>
For purposes of this Agreement, an "affiliate" of NVT includes any
person or entity controlling, controlled by or under common control
with NVT.
7. SUSPENSION OF SERVICE; TERMINATION OF AGREEMENT. In the event
CUSTOMER:
a. Breaches any provision of this Agreement including but not
limited to the provisions regarding payment; or
b. Files or initiates proceedings or has proceedings filed or
initiated against it, relating to its liquidation, insolvency,
reorganization or relief (such as the appointment of a trustee,
receiver, liquidator, custodian or other official) under any
bankruptcy, insolvency or other similar law or makes an
assignment for the benefit of its creditors or enters into an
agreement for the composition, extension or readjustment of its
obligations in connection with the foregoing;
Then NVT may, upon notice to CUSTOMER, at the NVT's option and in
addition to such other rights or remedies as it may have under this
Agreement, at law or in equity, without incurring any liability: (i)
suspend service to CUSTOMER until such time that such circumstance is
corrected (provided NVT shall not be prohibited from terminating this
Agreement after suspending service); (ii) declare all charges that
have been billed to CUSTOMER by NVT to be immediately due and payable,
whereupon all such amounts shall become immediately due and payable;
or (iii) terminate this Agreement.
8. CROSS DEFAULT/CROSS TERMINATION. NVT, at its option, may also
terminate services provided to CUSTOMER under this Agreement upon at
least (30) days notice to CUSTOMER, in addition to such other rights
or remedies as NVT may have under any agreement, at law or in equity,
in the event CUSTOMER or any affiliate of CUSTOMER breaches any
provision of any other agreement or instrument with or in favor of NVT
or any affiliate of NVT.
9. FORCE MAJEURE. Notwithstanding anything to the contrary herein, NVT
shall not be liable to CUSTOMER or any other person or entity for
damages, or deemed to be in breach of this Agreement, due to causes
outside of NVT's reasonable control, including, without limitation,
acts of God, fire, explosion, vandalism, storm or other natural
occurrences; any law, order, regulation, direction, action or request
of the United States government or of any government (including
without limitation, state and local governments having jurisdiction
over any of the parties) or of any department, agency, commission,
court, bureau, corporation or other instrumentality of any one or more
of such governments, or of any civil or military authority; national
emergencies; insurrection; riots; wars; strikes, lockouts, work
stoppage or other such labor difficulties; or any act or omission of
any other person or entity.
10. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns. CUSTOMER may not assign, delegate, or transfer any
of its rights or obligations hereunder without the prior written
consent of NVT. For purposes hereof, the following also constitutes
an assignment: (a) any merger, consolidation or reorganization to
which CUSTOMER is a party, (b) the sale or transfer of all or
substantially all the assets of CUSTOMER, or (c) the sale, issuance or
transfer of any voting securities of CUSTOMER which results in a
change in control of CUSTOMER.
3
<PAGE>
11. WAIVER. The delay or failure of NVT to enforce or insist upon
compliance with any of the terms or conditions of this Agreement or to
exercise any remedy provided herein, the waiver of any term or
condition of this Agreement, or the granting of an extension of time
for performance shall not constitute the permanent waiver of any term,
condition or remedy of or under this Agreement, and this Agreement and
each of its provision shall remain at all times in full force and
effect unless and until modified as provided herein.
12. NOTICES. All notices required by this Agreement shall be assumed to
have been delivered when sent in a sealed envelope, postage prepaid
and sent either express or overnight delivery or registered or
certified mail, return receipt requested and addressed to each party
as follows:
If to NVT: NetVoice Technologies, Inc.
13747 Montfort Dr., Ste. 250
Dallas, Texas 75240
Attention: Jeff Rothell
If to CUSTOMER: IDS Long Distance, Inc.
------------------------------
1525 N.W. 167th St.
------------------------------
Suite 200
------------------------------
Miami, FL 33169
------------------------------
Attn: Michael Noshay
13. SEVERABILITY. If any term, covenant, or condition of this Agreement
or the application thereof to any person or circumstance shall be
determined to any extent to be invalid or unenforceable, the remainder
of this Agreement, or the application of such term, covenant, or
condition to persons or circumstances other than those as to which it
is held invalid or unenforceable, shall not be affected by such
determination.
14. SURVIVAL. The covenants and agreements of CUSTOMER contained in this
Agreement with respect to payment of amounts due and indemnification
shall survive any termination of this Agreement.
15. HEADINGS. Headings contained herein are provided for convenience and
reference only and do not affect or limit the interpretation, contents
or terms of this Agreement.
16. GOVERNING LAW AND CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE VALIDITY AND
PERFORMANCE HEREOF SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE
STATE OF TEXAS AND CUSTOMER HEREBY CONSENTS TO THE JURISDICTION OF THE
COURTS OF SAID STATE WITH RESPECT TO ANY DISPUTE, CONTROVERSY OR OTHER
MATTER RELATING TO OR ARISING OUT OF THIS AGREEMENT.
17. EXECUTION. This Agreement may be executed in counterparts and each of
such counterparts shall, for all purposes, be deemed to be an original
but all together only one Agreement.
18. THIRD PARTIES. Nothing contained in this Agreement or in any
instrument or document executed by any party in connection with the
transactions contemplated hereby shall create any
4
<PAGE>
rights in, or be deemed to have been executed for the benefit of, any
person or entity that is not a party hereto or a successor or
permitted assign of a party hereto.
19. REGULATORY CHANGES. In the event of any regulatory, judicial, or
legislative body having jurisdiction over the way in which services
referenced herein are provided, materially changes the scope, terms,
or operating conditions of this Agreement, NVT may terminate this
agreement in its sole discretion without penalty.
20. ADDITIONAL PROVISIONS.
A. Nothing herein shall be construed as conveying any interest in
any property of NVT, and CUSTOMER shall not represent that such
conveyance has occurred.
B. The provision of service by NVT is subject to the condition that
the service will not be used for any unlawful purpose.
21. ENTIRE AGREEMENT. This Agreement, including its Exhibits, constitutes
the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior or contemporaneous agreements,
whether written or oral, between NVT and CUSTOMER. No waiver,
alteration or modification of any of the provisions of this Agreement,
shall be binding unless in writing and signed by a duly authorized
representative of the parties; provided, however, that only written
notice to CUSTOMER is required to increase service rates in accordance
with Section 3.6.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year above written as the effective date.
NetVoice Technologies, Inc. CUSTOMER IDS Long Distance, Inc.
By: /s/ JEFF ROTHELL By: /s/ MICHAEL NOSHAY
----------------------------- ------------------------------
Jeff Rothell
Name: Michael Noshay
----------------------------
(Print Name)
Title: President Title: President
----------------------------
Date: 9/22/99 Date: 9-9-99
--------------------------- ----------------------------
5
<PAGE>
EXHIBIT A
----------
NETVOICE TECHNOLOGIES, INC.
---------------------------
TERMINATION SERVICE
NVT will terminate/originate telecommunications received from Customer by
means of a DS1/DS3 interconnection at one of NVT's points of presence.
Calls may be terminated/originated locally, i.e., to/from the NPA/NXX
numbers associated with that point of presence ("Local
Termination/Origination"), and terminated in/originated from other cities
in which NVT has a point of presence ("on-net cities"). NVT's on-net
cities are listed on Exhibit B. The following charges will apply:
LOCAL TERMINATION TO ONNET CITIES:
$.0080 per minute billed with 6 second minimum and 6 second increments.
LOCAL ORIGINATION FROM ONNET CITIES:
$.0080 per minute billed with 6 second minimum and 6 second increments.
NetVoice Technologies, Inc. CUSTOMER IDS Long Distance, Inc.
By: /s/ JEFF ROTHELL By: /s/ MICHAEL NOSHAY
----------------------------- ------------------------------
Jeff Rothell Name: Michael Noshay, President
----------------------------
6
<PAGE>
EXHIBIT B
----------
NETVOICE TECHNOLOGIES, INC.
---------------------------
TERMINATION/ORIGINATION SERVICE
NPA/NXX LISTINGS AVAILABLE
--------------------------
Dallas Ft. Worth
Houston Austin
San Antonio El Paso
Oklahoma City Tulsa
Atlanta New Orleans
Denver Kansas City
Orlando Tampa
Miami/Ft. Lauderdale Jacksonville
Little Rock Albuquerque
Portland Phoenix
Chicago (10/99) New York (10/99)
Los Angeles (11/99)
7
EXHIBIT 10.8
CARRIER SERVICE AGREEMENT
-----------------------
This Service Agreement ("Agreement") is made as of the 10 day of March,
1999 ("Effective Date"), by and between NetVoice Technologies, Inc. (NVT),
with its principal office at 13747 Montfort Dr., Ste. 101, Dallas, Texas
75240, and Intercomm Americas, Inc. with its principal office at 5444
Westheimer #1920, hereinafter called ("CUSTOMER").
WHEREAS, CUSTOMER is a common carrier that has requested that NVT provide
the services described in Exhibits A and B and CUSTOMER agrees to accept
said services pursuant to the terms hereof.
NOW, THEREFORE, the parties agree as follows:
1. SERVICES. NVT agrees to furnish CUSTOMER telecommunications services
set forth in Exhibit A and Exhibit B to this Agreement, at the rates
set forth therein and subject to the terms and conditions contained in
this Agreement.
2. TERM. The term of this Agreement shall commence on the Effective Date
and will continue for a period of three (3) years. After the initial
term, this Agreement shall automatically be renewed for additional
successive one (1) year terms unless either party shall give to the
other not less than sixty (60) days written notice of termination
prior to the expiration date of the then - current term. (I will have
counsel amend this for the 45 day cancellation provision that would
apply to individual circuits).
3. CHARGES AND PAYMENT.
3.1 All Usage Charges and Monthly Recurring Charges for services
provided by NVT under this Agreement are set forth in Exhibit A,
which charges are subject to change as hereinafter provided.
3.2 Monthly Recurring Charges, Usage Charges and other charges for
services provided under this Agreement shall be payable as
follows:
3.2.1 All Monthly Recurring Charges for services provided
under this Agreement will be billed in advance of usage
and shall be paid by CUSTOMER to NVT, without demand or
setoff, within 5 days after the date of the NVT
invoice.
3.2.2 All Usage Charges, if applicable, for services provided
under this Agreement will be billed following the month
in which actual usage occurred and shall be paid by
CUSTOMER to NVT, without demand or setoff, within 10
days after the date of the NVT invoice.
3.3 Any amount not received by NVT on the due date specified above
will be deemed past due. Any past due amounts are subject to a
late charge in the amount of one and one-half percent (1.5%) per
month compounded monthly, or the maximum rate allowed by law,
whichever is less, from the due date until payment is received by
NVT.
1
<PAGE>
3.4 In case CUSTOMER disputes any billing of NVT, CUSTOMER must pay
the full amount within the time frames set forth in Sections
3.2.1 and 3.2.2. A description of the disputed billing must be
delivered to NVT in writing within 10 days of the invoice, and
NVT will set aside the disputed amount in a separate account for
up to 30 days while the Parties attempt to resolve the dispute.
3.5 NVT reserves the right to increase the Usage Charges, Monthly
Recurring Charges and service charges hereunder upon at least
forty-five (45) days prior notice to CUSTOMER, provided CUSTOMER
may elect to terminate this Agreement without penalty in the
event of any such increase. In order to exercise such election
to terminate, CUSTOMER must give NVT written notice of such
election within (15) days after the date of the notice of
increase from NVT.
3.6 NVT may require Customer to make a Deposit or an Advance Payment
or both to be held as a guarantee for the payment of charges.
The Deposit or Advance Payment shall not exceed an amount equal
to one month's estimated usage. A Deposit does not relieve the
Customer of the responsibility for the prompt payment of bills on
presentation.
In the event of cancellation, the Deposit will be applied toward
the Customer's final bill and any remainder will be returned to
the Customer within 90 days after the service has been
disconnected.
4. TAX EXEMPTION CERTIFICATE. Should CUSTOMER claim an exemption from
any sales, use, or other tax, the CUSTOMER shall provide such
exemption information to NVT. It will be the responsibility of
CUSTOMER to make sure that its proof of exempt status remains current.
In no event shall NVT be liable for any taxes due by CUSTOMER and
CUSTOMER hereby indemnifies NVT against any such claims for taxes by
any tax in authority or party acting on behalf of such taxing
authority.
5. LIMITATION OF LIABILITY. NVT'S LIABILITY HEREUNDER IS LIMITED TO
DIRECT DAMAGES ONLY. NVT WILL NOT BE RESPONSIBLE FOR CONSEQUENTIAL,
INCIDENTAL, SPECIAL OR INDIRECT LOSS OR DAMAGE OF ANY KIND. NVT SHALL
HAVE NO LIABILITY WHATSOEVER FOR ANY LOSS, COST OR EXPENSE ARISING ROM
THE DELAY OF ANY TELEPHONE OPERATING COMPANY, LOCAL EXCHANGE CARRIER,
OR ANY OTHER THIRD PARTY, ABSENT GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT ON THE PART OF NVT.
6. INDEMNIFICATION. CUSTOMER hereby indemnifies and holds harmless NVT,
its affiliates, their respective officers, directors, shareholders,
employees, agents, successors and assigns, and each of them, from and
against any and all damages, losses, claims, liabilities, demands,
charges, suits, penalties, costs of expenses, whether accrued,
absolute, contingent or otherwise, including but not limited to court
costs and attorney's fees, which any of the foregoing may incur or to
which any of the foregoing may be subjected, arising out of or
otherwise based upon any of the following:
6.1 Any breach or default by CUSTOMER under any of the provisions of
this Agreement or of any other agreement or instrument to which
NVT or an affiliate is a party or which is in favor of NVT or an
affiliate of NVT;
2
<PAGE>
6.2 Claims of any third person or entity for libel, slander,
infringement of copyright, or unauthorized use of trademark,
trade name, or service mark arising out of material, data,
information, or other content transmitted by CUSTOMER over NVT's
networks; or
6.3 Any act or omission of CUSTOMER or its agents, servants,
employees, contractors, or representatives.
For purposes of this Agreement, an "affiliate" of NVT includes any
person or entity controlling, controlled by or under common control
with NVT.
7. SUSPENSION OF SERVICE; TERMINATION OF AGREEMENT. In the event
CUSTOMER:
a. Breaches any provision of this Agreement including but not
limited to the provisions regarding payment; or
b. Files or initiates proceedings or has proceedings filed or
initiated against it, relating to its liquidation, insolvency,
reorganization or relief (such as the appointment of a trustee,
receiver, liquidator, custodian or other official) under any
bankruptcy, insolvency or other similar law or makes an
assignment for the benefit of its creditors or enters into an
agreement for the composition, extension or readjustment of its
obligations in connection with the foregoing;
Then NVT may, upon notice to CUSTOMER, at the NVT's option and in
addition to such other rights or remedies as it may have under this
Agreement, at law or in equity, without incurring any liability: (i)
suspend service to CUSTOMER until such time that such circumstance is
corrected (provided NVT shall not be prohibited from terminating this
Agreement after suspending service); (ii) declare all charges that
have been billed to CUSTOMER by NVT to be immediately due and payable,
whereupon all such amounts shall become immediately due and payable;
or (iii) terminate this Agreement.
8. CROSS DEFAULT/CROSS TERMINATION. NVT, at its option, may also
terminate services provided to CUSTOMER under this Agreement upon at
least (30) days notice to CUSTOMER, in addition to such other rights
or remedies as NVT may have under any agreement, at law or in equity,
in the event CUSTOMER or any affiliate of CUSTOMER breaches any
provision of any other agreement or instrument with or in favor of NVT
or any affiliate of NVT.
9. FORCE MAJEURE. Notwithstanding anything to the contrary herein, NVT
shall not be liable to CUSTOMER or any other person or entity for
damages, or deemed to be in breach of this Agreement, due to causes
outside of NVT's reasonable control, including, without limitation,
acts of God, fire, explosion, vandalism, storm or other natural
occurrences; any law, order, regulation, direction, action or request
of the United States government or of any government (including
without limitation, state and local governments having jurisdiction
over any of the parties) or of any department, agency, commission,
court, bureau, corporation or other instrumentality of any one or more
of such governments, or of any civil or military authority; national
emergencies; insurrection; riots; wars; strikes, lockouts, work
stoppage or other such labor difficulties; or any act or omission of
any other person or entity.
3
<PAGE>
10. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns. CUSTOMER may not assign, delegate, or transfer any
of its rights or obligations hereunder without the prior written
consent of NVT. For purposes hereof, the following also constitutes
an assignment: (a) any merger, consolidation or reorganization to
which CUSTOMER is a party, (b) the sale or transfer of all or
substantially all the assets of CUSTOMER, or (c) the sale, issuance or
transfer of any voting securities of CUSTOMER which results in a
change in control of CUSTOMER.
11. WAIVER. The delay or failure of NVT to enforce or insist upon
compliance with any of the terms or conditions of this Agreement or to
exercise any remedy provided herein, the waiver of any term or
condition of this Agreement, or the granting of an extension of time
for performance shall not constitute the permanent waiver of any term,
condition or remedy of or under this Agreement, and this Agreement and
each of its provision shall remain at all times in full force and
effect unless and until modified as provided herein.
12. NOTICES. All notices required by this Agreement shall be assumed to
have been delivered when sent in a sealed envelope, postage prepaid
and sent either express or overnight delivery or registered or
certified mail, return receipt requested and addressed to each party
as follows:
If to NVT: NetVoice Technologies, Inc.
13747 Montfort Dr., Ste. 101
Dallas, Texas 75240
Attention: William Bedri
If to CUSTOMER: Intercomm Americas Inc.
5444 Westheimer #1920
Houston, Texas 77056
13. SEVERABILITY. If any term, covenant, or condition of this Agreement
or the application thereof to any person or circumstance shall be
determined to any extent to be invalid or unenforceable, the remainder
of this Agreement, or the application of such term, covenant, or
condition to persons or circumstances other than those as to which it
is held invalid or unenforceable, shall not be affected by such
determination.
14. SURVIVAL. The covenants and agreements of CUSTOMER contained in this
Agreement with respect to payment of amounts due and indemnification
shall survive any termination of this Agreement.
15. HEADINGS. Headings contained herein are provided for convenience and
reference only and do not affect or limit the interpretation, contents
or terms of this Agreement.
16. GOVERNING LAW AND CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE VALIDITY AND
PERFORMANCE HEREOF SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE
STATE OF TEXAS AND CUSTOMER HEREBY CONSENTS TO THE JURISDICTION OF THE
COURTS OF SAID STATE WITH RESPECT TO ANY DISPUTE,
4
<PAGE>
CONTROVERSY OR OTHER MATTER RELATING TO OR ARISING OUT OF THIS AGREEMENT.
17. EXECUTION. This Agreement may be executed in counterparts and each of
such counterparts shall, for all purposes, be deemed to be an original
but all together only one Agreement.
18. THIRD PARTIES. Nothing contained in this Agreement or in any
instrument or document executed by any party in connection with the
transactions contemplated hereby shall create any rights in, or be
deemed to have been executed for the benefit of, any person or entity
that is not a party hereto or a successor or permitted assign of a
party hereto.
19. REGULATORY CHANGES. In the event of any regulatory, judicial, or
legislative body having jurisdiction over the way in which services
referenced herein are provided, materially changes the scope, terms,
or operating conditions of this Agreement, NVT may terminate this
agreement in its sole discretion without penalty.
20. ADDITIONAL PROVISIONS.
A. Nothing herein shall be construed as conveying any interest in
any property of NVT, and CUSTOMER shall not represent that such
conveyance has occurred.
B. The provision of service by NVT is subject to the condition that
the service will not be used for any unlawful purpose.
21. ENTIRE AGREEMENT. This Agreement, including its Exhibits, constitutes
the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior or contemporaneous agreements,
whether written or oral, between NVT and CUSTOMER. No waiver,
alteration or modification of any of the provisions of this Agreement,
shall be binding unless in writing and signed by a duly authorized
representative of the parties; provided, however, that only written
notice to CUSTOMER is required to increase service rates in accordance
with Section 3.6.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year above written as the effective date.
NetVoice Technologies, Inc. CUSTOMER
By: /s/ WILLIAM BEDRI By: /s/ MARK MOHR
--------------------------- ----------------------------
William Bedri
Name: Mark Mohr
--------------------------
(Print Name)
Title: President Title: COO
-------------------------
Date: 3/9/99 Date: 3/10/99
------------------------- --------------------------
5
<PAGE>
EXHIBIT A
---------
NETVOICE TECHNOLOGIES, INC.
---------------------------
TERMINATION SERVICE
NVT will terminate telecommunications received from Customer by means of a
DSI(T-1) interconnection at one of NVT's points of presence. Calls may be
carried by NVT to and terminated in other cities in which Customer has a
point of presence ("on-net cities"), i.e., to the country or NPA/NXX for
customer's other on-net cities. NVT's on-net cities are listed on Exhibit
B. The following charges will apply:
DRAFT: PRICING TO BE CONFIRMED
------------------------------
Transport rate: 1.5 cents per minute
6 second billing increments
200,000 minutes per T-1 guaranteed (minimum charge per T-1:
$3000.00) Minutes will be aggregated for all T-1's installed,
allowing 200,000 for each circuit/gateway. (ie) 12 T1's includes
2,400,000 minutes total minutes. Usage above 2,400,000 minutes
are billed at .0125.
IP Prices are FOB NVT POP.
NetVoice Technologies, Inc. CUSTOMER
By: /s/ WILLIAM BEDRI By: /s/ MARK MOHR
--------------------------- ----------------------------
William Bedri
Name: Mark Mohr
--------------------------
6
EXHIBIT 10.9
INTERNET TELEPHONY SERVICE AGREEMENT
------------------------------------
This Service Agreement ("Agreement") is made as of the 1st day of June,
1999 ("Effective Date"), by and between Intercomm Americas, Inc. (IAI),
(Service Provider) with its principal office at 5444 Westheimer, Ste.
1920, Houston, Texas 77056, and NetVoice Technologies, Inc., (NVT) with
its principal office at 13747 Montfort Dr., Ste. 250, Dallas, TX 75240,
hereinafter called ("CUSTOMER").
WHEREAS, Service Provider is in the business of providing internet
telecommunications services and
WHEREAS CUSTOMER desires to use such internet telecommunications services
from Service Provider.
NOW, THEREFORE, the parties agree as follows:
1. SERVICES. IAI agrees to furnish CUSTOMER telecommunications
services set forth in Exhibit A and Exhibit B to this Agreement, at
the rates set forth therein and subject to the terms and conditions
contained in this Agreement.
2. TERM. The term of this Agreement shall commence on the Effective
Date and will continue for a period of one (1) year. This Agreement
can be terminated if either party notifies the other party in
writing not less that sixty (60) days prior to the termination date
of it's desire to terminate this Agreement.
3. CHARGES AND PAYMENT.
All Usage Charges for services provided by IAI under this Agreement
are set forth in Exhibit A, which charges are subject to change as
hereinafter provided.
All Usage Charges for services provided under this Agreement will be
billed weekly. With each invoice IAI shall provide complete call
detail recording to CUSTOMER to facilitate CUSTOMER's billing to its
carrier accounts.
CUSTOMER shall remit payment to IAI via wire transfer within 2
business days of receipt of payment from CUSTOMER's carrier accounts.
IAI warrants that the invoices to CUSTOMER will accurately reflect
call usage so as to not cause undue payment delays from its carrier
accounts and furthermore IAI will not hold CUSTOMER liable for
payment of invoices until CUSTOMER has fully received payment from
its carrier accounts. In the event carrier account defaults, IAI
will have no claim or warrants against CUSTOMER for said traffic.
Payments from CUSTOMER to IAI shall be to:
Bank One Texas NA, ABA Routing #111000614
Houston, Texas
For further credit or the benefit of
INTERCOMM AMERICAS INC., Acct#1560950774
Initials: MM FPR 1
<PAGE>
4. TAX EXEMPTION CERTIFICATE. Should CUSTOMER claim an exemption from
any sales, use, or other tax, the CUSTOMER shall provide such
exemption information to IAI. It will be the responsibility of
CUSTOMER to make sure that its proof of exempt status remains
current. In no event shall IAI be liable for any taxes due by
CUSTOMER and CUSTOMER hereby indemnifies IAI against any such claims
for taxes by any tax in authority or party acting on behalf of such
taxing authority.
5. LIMITATION OF LIABILITY IAI'S LIABILITY HEREUNDER IS LIMITED TO
DIRECT DAMAGES ONLY. IAI WILL NOT BE RESPONSIBLE FOR CONSEQUENTIAL,
INCIDENTAL, SPECIAL OR INDIRECT LOSS OR DAMAGE OF ANY KIND. IAI
SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY LOSS, COST OR EXPENSE
ARISING FROM THE DELAY OF ANY TELEPHONE OPERATING COMPANY, LOCAL
EXCHANGE CARRIER, OR ANY OTHER THIRD PARTY, ABSENT GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT ON THE PART OF IAI.
6. INDEMNIFICATION. CUSTOMER hereby indemnifies and holds harmless
IAI, its affiliates, their respective officers, directors,
shareholders, employees, agents, successors and assigns, and each of
them, from and against any and all damages, losses, claims,
liabilities, demands, charges, suits, penalties, costs of expenses,
whether accrued, absolute, contingent or otherwise, including but
not limited to court costs and attorney's fees, which any of the
foregoing may incur or to which any of the foregoing may be
subjected, arising out of or otherwise based upon any of the
following:
6.1 Any breach or default by CUSTOMER under any of the provisions
of this Agreement or of any other agreement or instrument to
which IAI or an affiliate is a party or which is in favor of
IAI or an affiliate of IAI;
6.2 Claims of any third person or entity for libel, slander,
infringement of copyright, or unauthorized use of trademark,
trade name, or service mark arising out of material, data,
information, or other content transmitted by CUSTOMER over
IAI's networks; or
6.3 Any act or omission of CUSTOMER or its agents, servants,
employees, contractors, or representatives.
For purposes of this Agreement, an "affiliate" of IAI includes any
person or entity controlling, controlled by or under common control
with IAI.
7. SUSPENSION OF SERVICE; TERMINATION OF AGREEMENT. In the event CUSTOMER:
a. Breaches any provision of this Agreement including but not
limited to the provisions regarding payment; or
b. Files or initiates proceedings or has proceedings filed or
initiated against it, relating to its liquidation, insolvency,
reorganization or relief (such as the appointment of a trustee,
receiver, liquidator, custodian or other official) under any
bankruptcy, insolvency or other similar law or makes an
assignment for the benefit of its creditors or enters into an
Initials: MM FPR 2
<PAGE>
agreement for the composition, extension or readjustment of its
obligations in connection with the foregoing;
Then IAI may, upon notice to CUSTOMER, at the IAI's option and in
addition to such other rights or remedies as it may have under this
Agreement, at law or in equity, without incurring any liability: (i)
suspend service to CUSTOMER until such time that such circumstance
is corrected (provided IAI shall not be prohibited from terminating
this Agreement after suspending service); (ii) declare all charges
that have been billed to CUSTOMER by IAI to be immediately due and
payable, provided said carrier accounts have been paid and are
current to CUSTOMER; or (iii) terminate this Agreement.
8. CROSS DEFAULT/CROSS TERMINATION. IAI, at its option, may also
terminate services provided to CUSTOMER under this Agreement upon at
least (30) days notice to CUSTOMER, in addition to such other rights
or remedies as IAI may have under any agreement, at law or in
equity, in the event CUSTOMER or any affiliate of CUSTOMER breaches
any provision of any other agreement or instrument with or in favor
of IAI or any affiliate of IAI.
9. FORCE MAJEURE. Notwithstanding anything to the contrary herein, IAI
shall not be liable to CUSTOMER or any other person or entity for
damages, or deemed to be in breach of this Agreement, due to causes
outside of IAI's reasonable control, including, without limitation,
acts of God, fire, explosion, vandalism, storm or other natural
occurrences; any law, order, regulation, direction, action or
request of the United States government or of any government
(including without limitation, state and local governments having
jurisdiction over any of the parties) or of any department, agency,
commission, court, bureau, corporation or other instrumentality of
any one or more of such governments, or of any civil or military
authority; national emergencies; insurrection; riots; wars; strikes,
lockouts, work stoppage or other such labor difficulties; or any act
or omission of any other person or entity.
10. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns. CUSTOMER may not assign, delegate, or transfer
any of its rights or obligations hereunder without the prior written
consent of IAI. For purposes hereof, the following also constitutes
an assignment: (a) any merger, consolidation or reorganization to
which CUSTOMER is a party, (b) the sale or transfer of all or
substantially all the assets of CUSTOMER, or (c) the sale, issuance
or transfer of any voting securities of CUSTOMER which results in a
change in control of CUSTOMER.
11. WAIVER. The delay or failure of IAI to enforce insist upon
compliance with any of the terms or conditions of this Agreement or
to exercise any remedy provided herein, the waiver of any term or
condition of this Agreement, or the granting of an extension of time
for performance shall not constitute the permanent waiver of any
term, condition or remedy of or under this Agreement, and this
Agreement and each of its provision shall remain at all times in
full force and effect unless and until modified as provided herein.
12. NOTICES. All notices required by this Agreement shall be assumed to
have been delivered when sent in a sealed envelope, postage prepaid
and sent either express or overnight delivery or registered or
certified mail, return receipt requested and addressed to each party
as follows:
Initials: MM FPR 3
<PAGE>
If to IAI: Intercomm Americas, Inc.
5444 Westheimer, Ste. 1920
Houston, TX 77056
Attention: Mark Mohr
If to CUSTOMER: NetVoice Technologies, Inc.
13747 Montfort Dr.,Ste. 101
Dallas, Texas 75240
Attention: William Bedri
13. SEVERABILITY. If any term, covenant, or condition of this Agreement
or the application thereof to any person or circumstance shall be
determined to any extent to be invalid or unenforceable, the
remainder of this Agreement, or the application of such term,
covenant, or condition to persons or circumstances other than those
as to which it is held invalid or unenforceable, shall not be
affected by such determination.
14. SURVIVAL. The covenants and agreements of CUSTOMER contained in
this Agreement with respect to payment of amounts due and
indemnification shall survive any termination of this Agreement.
15. HEADINGS. Headings contained herein are provided for convenience
and reference only and do not affect or limit the interpretation,
contents or terms of this Agreement.
16. GOVERNING LAW AND CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE VALIDITY AND
PERFORMANCE HEREOF SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE
STATE OF TEXAS AND CUSTOMER HEREBY CONSENTS TO THE JURISDICTION OF
THE COURTS OF SAID STATE WITH RESPECT TO ANY DISPUTE, CONTROVERSY OR
OTHER MATTER RELATING TO OR ARISING OUT OF THIS AGREEMENT.
17. EXECUTION. This Agreement may be executed in counterparts and each
of such counterparts shall, for all purposes, be deemed to be an
original but all together only one Agreement.
18. THIRD PARTIES. Nothing contained in this Agreement or in any
instrument or document executed by any party in connection with the
transactions contemplated hereby shall create any rights in, or be
deemed to have been executed for the benefit of, any person or
entity that is not a party hereto or a successor or permitted assign
of a party hereto.
19. ADDITIONAL PROVISIONS.
A. Nothing herein shall be construed as conveying any interest in
any property of IAI, and CUSTOMER shall not represent that such
conveyance has occurred.
B. The provision of service by IAI is subject to the condition
that the service will not be used for any unlawful purpose.
Initials: MM FPR 4
<PAGE>
20. ENTIRE AGREEMENT. This Agreement, including its Exhibits,
constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior or
contemporaneous agreements, whether written or oral, between IAI and
CUSTOMER. No waiver, alteration or modification of any of the
provisions of this Agreement, shall be binding unless in writing and
signed by a duly authorized representative of the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year above written as the effective date.
Intercomm Americas, Inc. CUSTOMER
By: /s/ MARK MOHR By: /s/ FRED RACKERS
--------------------------- ----------------------------
Mark Mohr
Name: FRED RACKERS
--------------------------
Title: President Title: VP
-------------------------
Date: June 6, 1999 Date: June 1, 1999
------------------------- --------------------------
Initials: MM FPR 5
<PAGE>
Exhibit A
Countries Covered: All international termination
Payment Rates: To be determined on customer specific and
country specific basis less a $.003 per
minute network management fee
Billing Cycle: Weekly
FOB Point: Dallas, Houston, Ft. Lauderdale
Initials: MM FPR 6
EXHIBIT 10.10
CARRIER SERVICE AGREEMENT
-------------------------
This Service Agreement ("Agreement") is made as of the 20th day of October,
1999 ("Effective Date"), by and between NetVoice Technologies, Inc. (NVT),
with its principal office at 13747 Montfort Dr., Ste. 250, Dallas, Texas
75240, and JD Services , Incorporated, with its principal office at 1844
South 3850 West, Salt Lake City, Utah, hereinafter called ("CUSTOMER").
WHEREAS, CUSTOMER is a common carrier that has requested that NVT provide
the services described in Exhibits A and B and CUSTOMER agrees to accept
said services pursuant to the terms hereof;
NOW, THEREFORE, the parties agree as follows:
1. SERVICES. NVT agrees to furnish CUSTOMER telecommunications services
set forth in Exhibit A and Exhibit B to this Agreement, at the rates
set forth therein and subject to the terms and conditions contained in
this Agreement.
2. TERM. The term of this Agreement shall commence on the Effective Date
and will continue for a period of one year. After the initial term,
this Agreement shall automatically be renewed for additional
successive one year terms unless either party shall give to the other
not less than sixty (60) days written notice of termination prior to
the expiration date of the then - current term.
3. CHARGES AND PAYMENT.
3.1 All Usage Charges and Monthly Recurring Charges for services
provided by NVT under this Agreement are set forth in Exhibit A,
which charges are subject to change as hereinafter provided.
3.2 Monthly Recurring Charges, Usage Charges and other charges for
services provided under this Agreement shall be payable as
follows:
3.2.1 All Usage Charges and Monthly Recurring Charges for
services provided under this Agreement will be billed
7 days post usage and shall be paid by CUSTOMER to NVT,
without demand or setoff, within 3 days after the date
of the NVT invoice.
3.3 Any amount not received by NVT on the due date specified above
will be deemed past due. Any past due amounts are subject to a
late charge in the amount of one and one-half percent per month
compounded monthly, or the maximum rate allowed by law, whichever
is less, from the due date until payment is received by NVT.
3.4 In case the CUSTOMER disputes any billing of NVT, CUSTOMER must
pay the full amount within the time frames set forth in Section
3.2.1 . A description of the disputed billing must be delivered
to NVT in writing within 3 days of the invoice, and NVT will set
aside the disputed amount in a separate account for up to 30 days
while the Parties attempt to resolve the dispute.
1
<PAGE>
3.5 NVT reserves the right to increase the Usage Charges, Monthly
Recurring Charges and service charges hereunder upon at least
thirty (30) days prior notice to CUSTOMER for domestic service,
and five (5) days prior notice for international service,
provided CUSTOMER may elect to terminate this Agreement without
penalty in the event of any such increase. In order to exercise
such election to terminate, CUSTOMER must give NVT written notice
of such election within (15) days after the date of the notice of
increase from NVT.
4. TAX EXEMPTION CERTIFICATE. Should CUSTOMER claim an exemption from
any sales, use, or other tax, the CUSTOMER shall provide such
exemption information to NVT. It will be the responsibility of
CUSTOMER to make sure that its proof of exempt status remains current.
In no event shall NVT be liable for any taxes due by CUSTOMER and
CUSTOMER hereby indemnifies NVT against any such claims for taxes by
any tax in authority or party acting on behalf of such taxing authority.
5. LIMITATION OF LIABILITY. NVT'S LIABILITY HEREUNDER IS LIMITED TO
DIRECT DAMAGES ONLY. NVT WILL NOT BE RESPONSIBLE FOR CONSEQUENTIAL,
INCIDENTAL, SPECIAL OR INDIRECT LOSS OR DAMAGE OF ANY KIND. NVT SHALL
HAVE NO LIABILITY WHATSOEVER FOR ANY LOSS, COST OR EXPENSE ARISING
FROM THE DELAY OF ANY TELEPHONE OPERATING COMPANY, LOCAL EXCHANGE
CARRIER, OR ANY OTHER THIRD PARTY, ABSENT GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT ON THE PART OF NVT.
6. INDEMNIFICATION. CUSTOMER hereby indemnifies and holds harmless NVT,
its affiliates, their respective officers, directors, shareholders,
employees, agents, successors and assigns, and each of them, from and
against any and all damages, losses, claims, liabilities, demands,
charges, suits, penalties, costs of expenses, whether accrued,
absolute, contingent or otherwise, including but not limited to court
costs and attorney's fees, which any of the foregoing may incur or to
which any of the foregoing may be subjected, arising out of or
otherwise based upon any of the following:
6.1 Any breach or default by CUSTOMER under any of the provisions of
this Agreement or of any other agreement or instrument to which
NVT or an affiliate is a party or which is in favor of NVT or an
affiliate of NVT;
6.2 Claims of any third person or entity for libel, slander,
infringement of copyright, or unauthorized use of trademark,
trade name, or service mark arising out of material, data,
information, or other content transmitted by CUSTOMER over NVT's
networks; or
6.3 Any act or omission of CUSTOMER or its agents, servants,
employees, contractors, or representatives.
For purposes of this Agreement, an "affiliate" of NVT includes any
person or entity controlling, controlled by or under common control
with NVT.
2
<PAGE>
7. SUSPENSION OF SERVICE; TERMINATION OF AGREEMENT. In the event CUSTOMER:
a. Breaches any provision of this Agreement including but not
limited to the provisions regarding payment; or
b. Files or initiates proceedings or has proceedings filed or
initiated against it, relating to its liquidation, insolvency,
reorganization or relief (such as the appointment of a trustee,
receiver, liquidator, custodian or other official) under any
bankruptcy, insolvency or other similar law or makes an
assignment for the benefit of its creditors or enters into an
agreement for the composition, extension or readjustment of its
obligations in connection with the foregoing;
Then NVT may, upon notice to CUSTOMER, at the NVT's option and in
addition to such other rights or remedies as it may have under this
Agreement, at law or in equity, without incurring any liability: (i)
suspend service to CUSTOMER until such time that such circumstance is
corrected (provided NVT shall not be prohibited from terminating this
Agreement after suspending service); (ii) declare all charges that
have been billed to CUSTOMER by NVT to be immediately due and payable,
whereupon all such amounts shall become immediately due and payable;
or (iii) terminate this Agreement.
8. CROSS DEFAULT/CROSS TERMINATION. NVT, at its option, may also
terminate services provided to CUSTOMER under this Agreement upon at
least (30) days notice to CUSTOMER, in addition to such other rights
or remedies as NVT may have under any agreement, at law or in equity,
in the event CUSTOMER or any affiliate of CUSTOMER breaches any
provision of any other agreement or instrument with or in favor of NVT
or any affiliate of NVT.
9. FORCE MAJEURE. Notwithstanding anything to the contrary herein, NVT
shall not be liable to CUSTOMER or any other person or entity for
damages, or deemed to be in breach of this Agreement, due to causes
outside of NVT's reasonable control, including, without limitation,
acts of God, fire, explosion, vandalism, storm or other natural
occurrences; any law, order, regulation, direction, action or request
of the United States government or of any government (including
without limitation, state and local governments having jurisdiction
over any of the parties) or of any department, agency, commission,
court, bureau, corporation or other instrumentality of any one or more
of such governments, or of any civil or military authority; national
emergencies; insurrection; riots; wars; strikes, lockouts, work
stoppage or other such labor difficulties; or any act or omission of
any other person or entity.
10. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns. CUSTOMER may not assign, delegate, or transfer any
of its rights or obligations hereunder without the prior written
consent of NVT. For purposes hereof, the following also constitutes
an assignment: (a) any merger, consolidation or reorganization to
which CUSTOMER is a party, (b) the sale or transfer of all or
substantially all the assets of CUSTOMER, or (c) the sale, issuance or
transfer of any voting securities of CUSTOMER which results in a
change in control of CUSTOMER.
11. WAIVER. The delay or failure of NVT to enforce or insist upon
compliance with any of the terms or conditions of this Agreement or to
exercise any remedy provided herein, the waiver of any term or
condition of this Agreement, or the granting of an extension of time for
3
<PAGE>
performance shall not constitute the permanent waiver of any term,
condition or remedy of or under this Agreement, and this Agreement and
each of its provision shall remain at all times in full force and
effect unless and until modified as provided herein.
12. NOTICES. All notices required by this Agreement shall be assumed to
have been delivered when sent in a sealed envelope, postage prepaid
and sent either express or overnight delivery or registered or
certified mail, return receipt requested and addressed to each party
as follows:
If to NVT: NetVoice Technologies, Inc.
13747 Montfort Dr., Ste. 250
Dallas, Texas 75240
Attention: Jeff Rothell
If to CUSTOMER: JDS
Tim Ricks
1844 South 3850 West
Salt Lake City, Utah 84104
13. SEVERABILITY. If any term, covenant, or condition of this Agreement
or the application thereof to any person or circumstance shall be
determined to any extent to be invalid or unenforceable, the remainder
of this Agreement, or the application of such term, covenant, or
condition to persons or circumstances other than those as to which it
is held invalid or unenforceable, shall not be affected by such
determination.
14. SURVIVAL. The covenants and agreements of CUSTOMER contained in this
Agreement with respect to payment of amounts due and indemnification
shall survive any termination of this Agreement.
15. HEADINGS. Headings contained herein are provided for convenience and
reference only and do not affect or limit the interpretation, contents
or terms of this Agreement.
16. GOVERNING LAW AND CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE VALIDITY AND
PERFORMANCE HEREOF SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE
STATE OF TEXAS AND CUSTOMER HEREBY CONSENTS TO THE JURISDICTION OF THE
COURTS OF SAID STATE WITH RESPECT TO ANY DISPUTE, CONTROVERSY OR OTHER
MATTER RELATING TO OR ARISING OUT OF THIS AGREEMENT.
17. EXECUTION. This Agreement may be executed in counterparts and each of
such counterparts shall, for all purposes, be deemed to be an original
but all together only one Agreement.
18. THIRD PARTIES. Nothing contained in this Agreement or in any
instrument or document executed by any party in connection with the
transactions contemplated hereby shall create any rights in, or be
deemed to have been executed for the benefit of, any person or entity
that is not a party hereto or a successor or permitted assign of a
party hereto.
19. REGULATORY CHANGES. In the event of any regulatory, judicial, or
legislative body having jurisdiction over the way in which services
referenced herein are provided, materially
4
<PAGE>
changes the scope, terms, or operating conditions of this Agreement,
NVT may terminate this agreement in its sole discretion without penalty.
20. ADDITIONAL PROVISIONS.
A. Nothing herein shall be construed as conveying any interest in
any property of NVT, and CUSTOMER shall not represent that such
conveyance has occurred.
B. The provision of service by NVT is subject to the condition that
the service will not be used for any unlawful purpose.
21. ENTIRE AGREEMENT. This Agreement, including its Exhibits, constitutes
the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior or contemporaneous agreements,
whether written or oral, between NVT and CUSTOMER. No waiver,
alteration or modification of any of the provisions of this Agreement,
shall be binding unless in writing and signed by a duly authorized
representative of the parties; provided, however, that only written
notice to CUSTOMER is required to increase service rates in accordance
with Section 3.6.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year above written as the effective date.
NetVoice Technologies, Inc. CUSTOMER
By: By: /s/ TIM S. RICKS
----------------------------- -----------------------------
Jeff Rothell
Name: Tim s. Ricks
---------------------------
(Print Name)
Title: President Title: Network Specialist
---------------------------
Date: Date: 10-26-99
--------------------------- ---------------------------
5
<PAGE>
EXHIBIT A
----------
NETVOICE TECHNOLOGIES, INC.
---------------------------
TERMINATION SERVICE
NVT will terminate telecommunications received from Customer by means of a
DSI (T-1) and or DS3 interconnection at one of NVT's points of presence.
Calls may be terminated locally, i.e., to the NPA/NXX numbers associated
with that point of presence ("Local Termination"), or may be carried by NVT
to and terminated in other cities in which NVT has a point of presence
("on-net cities"), i.e., to the NPA/NXX for NVT's other on-net cities ("IP
Long Haul"). NVT's on-net cities and the NPA/NXX associated with them are
listed on Exhibit B. The following charges will apply:
DS3 LOCAL TERMINATION AND LOCAL ORIGINATION
- --------------------------------------------
JDS agrees to contract to 1 DS3 in Tampa, FL, and 1 DS3 in Houston, TX for
a period of 1 year upon circuit installation.
Option A: DS3 Rate per minute
-------------------
Termination Rate $.0075 Origination Rate $.0075
Total Rate $.015
I P Long Haul and Virtual Termination Prices are FOB NVT POP. INCLUDES
LONG HAUL AND TERMINATION of calls within local calling area of
terminating on-net city (cities).
Local termination is FOB NVT POP.
NetVoice Technologies, Inc. CUSTOMER
By: By: /s/ TIM S. RICKS
----------------------------- -----------------------------
Jeff Rothell
Name: Tim S. Ricks
---------------------------
6
<PAGE>
EXHIBIT B
----------
NETVOICE TECHNOLOGIES, INC.
---------------------------
NPA/NXX LISTINGS AVAILABLE
--------------------------
Dallas Ft. Worth
Houston Austin
San Antonio El Paso
Oklahoma City Tulsa
Atlanta New Orleans
Denver Kansas City
Orlando Tampa
Miami/Ft. Lauderdale Jacksonville
Little Rock Albuquerque
Portland Phoenix
Chicago (11/99) New York (11/99)
Los Angeles (11/99)
7
EXHIBIT 10.11
CARRIER SERVICE AGREEMENT
-------------------------
This Service Agreement ("Agreement") is made as of the 25 day of OCT,
1999 ("Effective Date"), by and between NetVoice Technologies, Inc.
(NVT), with its principal office at 13747 Montfort Dr, Ste. 250, Dallas,
Texas 75240, and SUPERNET, with its principal office at 232 BROADWAY
BROOKLYN NY 11211, hereinafter called ("CUSTOMER").
WHEREAS, CUSTOMER is a common carrier that has requested that NVT provide
the services described in Exhibits A and B and CUSTOMER agrees to accept
said services pursuant to the terms hereof:
NOW, THEREFORE, the parties agree as follows:
1. SERVICES. NVT agrees to furnish CUSTOMER telecommunications
services set forth in Exhibit A and Exhibit B to this Agreement, at
the rates set forth therein and subject to the terms and conditions
contained in this Agreement.
2. TERM. The term of this Agreement shall commence on the Effective
Date and will continue for a period of one (1) year.
3. CHARGES AND PAYMENT.
3.1 All Usage Charges and Monthly Recurring Charges for services
provided by NVT under this Agreement are set forth in Exhibit
A, which charges are subject to change as hereinafter provided.
3.2 Monthly Recurring Charges, Usage Charges and other charges for
services provided under this Agreement shall be payable as
follows:
3.2.1 All monthly Recurring Charges for services provided
under this Agreement will be billed in advance of
usage and shall be paid by CUSTOMER to NVT, without
demand or setoff, within 5 days after the date of the
NVT invoice.
3.2.2 All Usage Charges, if applicable, for services
provided under this Agreement will be billed 7 days
post usage and shall be paid by CUSTOMER to NVT,
without demand or setoff, within 3 days after the
date of the NVT invoice.
3.3 Any amount not received by NVT on the due date specified above
will be deemed past due. Any past due amounts are subject to a
late charge in the amount of one and one-half percent (1.5%)
per month compounded monthly, or the maximum rate allowed by
law, whichever is less, from the due date until payment is
received by NVT.
1
<PAGE>
3.4 In case the CUSTOMER disputes any billing of NVT, CUSTOMER must
pay the full amount within the time frames set forth in
sections 3.2.1 and 3.2.2. A description of the disputed
billing must be delivered to NVT in writing within 10 days of
the invoice, and NVT will set aside the disputed amount in a
separate account for up to 30 days while the Parties attempt to
resolve the dispute.
3.5 NVT reserves the right to increase the Usage Charges, Monthly
Recurring Charges and service charges hereunder upon at least
thirty (30) days prior notice to CUSTOMER for domestic service,
and five (5) days prior notice for international service,
provided CUSTOMER may elect to terminate this Agreement without
penalty in the event of any such increase. In order to
exercise such election to terminate, CUSTOMER must give NVT
written notice of such election within (15) days after the date
of the notice of increase from NVT.
3.6 Customer shall make a Deposit or an Advance Payment or both to
be held as a guarantee for the payment of charges. The Deposit
or Advance Payment shall not exceed an amount equal to one
month's estimated usage. A Deposit does not relieve the
Customer of the responsibility for the prompt payment of bills
on presentation.
In the event of cancellation, the Deposit will be applied
toward the Customer's final bill and any remainder will be
returned to the Customer within 90 days after the service has
been disconnected.
4. TAX EXEMPTION CERTIFICATE. Should CUSTOMER claim an exemption from
any sales, use, or other tax, the CUSTOMER shall provide such
exemption information to NVT. It will be the responsibility of
CUSTOMER to make sure that its proof of exempt status remains
current. In no event shall NVT be liable for any taxes due by
CUSTOMER and CUSTOMER hereby indemnifies NVT against any such claims
for taxes by any tax in authority or party acting on behalf of such
taxing authority.
5. LIMITATION OF LIABILITY. NVT'S LIABILITY HEREUNDER IS LIMITED TO
DIRECT DAMAGES ONLY. NVT WILL NOT BE RESPONSIBLE FOR CONSEQUENTIAL,
INCIDENTAL, SPECIAL OR INDIRECT LOSS OR DAMAGE OF ANY KIND. NVT
SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY LOSS, COST OR EXPENSE
ARISING FROM THE DELAY OF ANY TELEPHONE OPERATING COMPANY, LOCAL
EXCHANGE CARRIER, OR ANY OTHER THIRD PARTY, ABSENT GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT ON THE PART OF NVT.
6. INDEMNIFICATION. CUSTOMER hereby indemnifies and holds harmless
NVT, its affiliates, their respective officers, directors,
shareholders, employees, agents, successors and assigns, and each of
them, from and against any and all damages, losses, claims,
liabilities, demands, charges, suits, penalties, costs of expenses,
whether accrued, absolute, contingent or otherwise, including but
not limited to court costs and attorney's fees, which any of the
foregoing may incur or to which any of the foregoing may be
subjected, arising out of or otherwise based upon any of the following:
6.1 Any breach of default by CUSTOMER under any of the provisions
of this Agreement or of any other agreement or instrument to
which NVT or an affiliate is a party or which is in favor of
NVT or an affiliate of NVT;
2
<PAGE>
6.2 Claims of any third person or entity for libel, slander,
infringement or copyright, or unauthorized use of trademark,
trade names, or service mark arising out of material, data,
information, or other content transmitted by CUSTOMER over
NVT's networks; or
6.3 Any act or omission of CUSTOMER or its agents, servants,
employees, contractors, or representatives.
For purposes of this Agreement, an "affiliate" of NVT includes any
person or entity controlling, controlled by or under common control
with NVT.
7. SUSPENSION OF SERVICE; TERMINATION OF AGREEMENT. In the event
CUSTOMER:
a. Breaches any provision of this Agreement including but not
limited to the provisions regarding payment; or
b. Files or initiates proceedings or has proceedings filed or
initiated against it, relating to its liquidation, insolvency,
reorganization or relief (such as the appointment of a trustee,
receiver, liquidator, custodian or other official) under any
bankruptcy, insolvency or other similar law or makes an
assignment for the benefit of its creditors or enters into an
agreement for the composition, extension or readjustment of its
obligations in connection with the foregoing;
Then NVT may, upon notice to CUSTOMER, at the NVT's option and in
addition to such other rights or remedies as it may have under this
Agreement, at law or in equity, without incurring any liability; (i)
suspend service to CUSTOMER until such time that such circumstance
is corrected (provided NVT shall not be prohibited from terminating
this Agreement after suspending service; (ii) declare all charges
that have been billed to CUSTOMER by NVT to be immediately due and
payable, whereupon all such amounts shall become immediately due and
payable; or (iii) terminate this Agreement.
8. CROSS DEFAULT/CROSS TERMINATION. NVT, at its option, may also
terminate services provided to CUSTOMER under this Agreement upon at
least (30) days notice to CUSTOMER, in addition to such other rights
or remedies as NVT may have under any agreement, at law or in
equity, in the event CUSTOMER or any affiliate of CUSTOMER breaches
any provision of any other agreement or instrument with or in favor
of NVT or any affiliate of NVT.
9. FORCE MAJEURE. Notwithstanding anything to the contrary herein, NVT
shall not be liable to CUSTOMER or any other person or entity for
damages, or deemed to be in breach of this Agreement, due to causes
outside of NVT's reasonable control, including, without limitation,
acts of God, fire, explosion, vandalism, storm or other natural
occurrences; any law, order, regulation, direction, action or
request of the united States government or of any government
(including without limitation, state and local governments having
jurisdiction over any of the parties) or of any department, agency,
commission, court, bureau, corporation or other instrumentality of
an one or more of such governments, or of any civil or military
authority; national emergencies; insurrection; riots; wars; strikes,
lockouts, work stoppage or other such labor difficulties; or any act
or omission of any other person or entity.
3
<PAGE>
10. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns. CUSTOMER may not assign, delegate, or transfer
any of its rights or obligations hereunder without the prior written
consent of NVT. For purposes hereof, the following also constitutes
an assignment: (a) any merger, consolidation or reorganization to
which CUSTOMER is a party, (b) the sale or transfer of all or
substantially all the assets of CUSTOMER, or (c) the sale, issuance
or transfer of any voting securities of CUSTOMER which results in a
change in control of CUSTOMER.
11. WAIVER. The delay or failure of NVT to enforce or insist upon
compliance with any of the terms or conditions of this Agreement or
to exercise any remedy provided herein, the waiver of any term or
condition of this Agreement or the granting of an extension of time
for performance shall not constitute the permanent waiver of any
term, condition or remedy of or under this Agreement, and this
Agreement and each of its provision shall remain at all times in
full force and effect unless and until modified as provided herein.
12. NOTICES. All notices required by this Agreement shall be assumed to
have been delivered when sent in a sealed envelope, postage prepaid
and sent either express or overnight delivery or registered or
certified mail, return receipt requested and addressed to each party
as follows:
If to NVT: NetVoice Technologies, Inc.
13747 Montfort Dr., Ste. 250
Dallas, Texas 75240
Attention: Jeff Rothell
If to CUSTOMER: Supernet
232 Broadway
Brooklyn, NY 11211
ATT: Moses Greenfield
13. SEVERABILITY. If any term, covenant, or condition of this Agreement
or the application thereof to any person or circumstance shall be
determined to any extent to be invalid or unenforceable, the
remainder of this Agreement, or the application of such term,
covenant, or condition to persons or circumstances other than those
as to which it is held invalid or unenforceable, shall not be
affected by such determination.
14. SURVIVAL. The covenants and agreements of CUSTOMER contained in this
Agreement with respect to payment of amounts due and indemnification
shall survive any termination of this Agreement.
15. HEADINGS. Headings contained herein are provided for convenience
and reference only and do not affect or limit the interpretation,
contents or terms of this Agreement.
16. GOVERNING LAW AND CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE VALIDITY AND
PERFORMANCE HEREOF SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE
STATE OF TEXAS AND CUSTOMER HEREBY CONSENTS TO THE JURISDICTION OF
THE COURTS OF SAID STATE WITH RESPECT TO ANY DISPUTE,
4
<PAGE>
CONTROVERSY OR OTHER MATTER RELATING TO OR ARISING OUT OF THIS AGREEMENT.
17. EXECUTION. This Agreement may be executed in counterparts and each
of such counterparts shall, for all purposes, be deemed to be an
original but all together only one Agreement.
18. THIRD PARTIES. Nothing contained in this Agreement or in any
instrument or document executed by any party in connection with the
transactions contemplated hereby shall create any rights in, or be
deemed to have been executed for the benefit of, any person or
entity that is not a party hereto or a successor or permitted assign
of a party hereto.
19. REGULATORY CHANGES. In the event of any regulatory, judicial, or
legislative body having jurisdiction over the way in which services
referenced herein are provided, materially changes the scope, terms,
or operating conditions of this Agreement, NVT may terminate this
agreement in its sole discretion without penalty.
20. ADDITIONAL PROVISIONS.
A. Nothing herein shall be construed as conveying any interest in
any property of NVT, and CUSTOMER shall not represent that such
conveyance has occurred.
B. The provision of service by NVT is subject to the condition
that the service will not be used for any unlawful purpose.
21. ENTIRE AGREEMENT. This Agreement, including its Exhibits,
constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior or
contemporaneous agreements, whether written or oral, between NVT and
CUSTOMER. No waiver, alteration or modification or any of the
provisions of this Agreement shall be binding unless in writing and
signed by a duly authorized representative of the parties; provided,
however, that only written notice to CUSTOMER is required to
increase service rates in accordance with Section 3.6.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year above written as the effective date.
NetVoice Technologies, Inc. CUSTOMER
By: /s/ JEFF ROTHELL By: /s/ MOSES GREENFIELD
--------------------------- ------------------------------
Jeff Rothell
Name: Moses Greenfield
----------------------------
(Print Name)
Title: President Title: V.Pres
---------------------------
Date: 11-1-99 Date: 10-26-99
------------------------- ----------------------------
5
<PAGE>
EXHIBIT A
---------
NETVOICE TECHNOLOGIES, INC.
---------------------------
TERMINATION SERVICE
NVT will terminate telecommunications received from Customer by means of
a DS1(T-1) interconnection at one of NVT's points of presence. Calls may
be terminated locally, i.e., to the NPA/NXX numbers associated with that
point of presence ("Local Termination"), or may be carried by NVT to and
terminated in other cities in which NVT has a point of presence ("on-net
cities"), i.e., to the NPA/NXX for NVT's other on-net cities ("IP Long
Haul"). NVT's on-net cities and the NPA/NXX associated with them are
listed on Exhibit B. The following charges will apply:
Long Haul Transport, Local Termination, Local Origination
- ---------------------------------------------------------
Option A: Fixed Rate Service
------------------
1 Year 2 Year
--------------------------
1 - 4 T-1 $5500 ____ $5300 ____
5 - 9 " $5300 ____ $5100 ____
10 - 28 " $5100 ____ $4900 ____
29+ " $4900 ____ $4700 ____
(2) @ $5000 to start /s/ FPR MG
(Please initial appropriate fixed quantity/rate) (Quantity chosen must be
activated within 60 days of initial circuit acceptance)
Option B: Rate per minute (Requires DS3 volume-minimum 4M minutes per month
-----------------------------------------------------------------
Origination Service $.017 per minute Per minute plan accepted:
Termination Service $.015 per minute (60 day ramp to reach
4M minutes)
1P Long Haul and Virtual Termination Prices are FOB NVT POP. INCLUDES
LONG HAUL AND TERMINATION of calls within local calling area of
terminating on-net city (cities).
Local termination is FOB NVT POP.
NetVoice Technologies, Inc. CUSTOMER
By: /s/ JEFF ROTHELL By: /s/ MOSES GREENFIELD
-------------------------- ---------------------------
Jeff Rothell Name: Moses Greenfield
-------------------------
6
<PAGE>
EXHIBIT B
----------
NETVOICE TECHNOLOGIES, INC.
---------------------------
TERMINATION SERVICE
NPA/NXX LISTINGS AVAILABLE
--------------------------
Dallas Ft. Worth
Houston Austin
San Antonio El Paso
Oklahoma City Tulsa
Atlanta New Orleans
Denver Kansas City
Orlando Tampa
Miami/Ft. Lauderdale Jacksonville
Little Rock Albuquerque
Portland Phoenix
Chicago (11/99) New York (11/99)
Los Angeles (12/99)
7
EXHIBIT 10.12
CARRIER SERVICE AGREEMENT
-------------------------
This Service Agreement ("Agreement") is made as of the 7th day of
September, 1999 ("Effective Date"), by and between NetVoice Technologies,
Inc. (NVT), with its principal office at 13747 Montfort Dr., Ste. 250,
Dallas, Texas 75240, and ValuLine Inc., with its principal office at PO Box
21098, Albuquerque, NM 87154-1098, hereinafter called ("CUSTOMER").
WHEREAS, CUSTOMER is a common carrier that has requested that NVT provide
the services described in Exhibits A and B and CUSTOMER agrees to accept
said services pursuant to the terms hereof;
NOW, THEREFORE, the parties agree as follows:
1. SERVICES. NVT agrees to furnish CUSTOMER telecommunications services
set forth in Exhibit A and Exhibit B to this Agreement, at the rates
set forth therein and subject to the terms and conditions contained in
this Agreement.
2. TERM. The term of this Agreement shall commence on the Effective Date
and will continue for a period of one (1) year. After the initial
term, this Agreement shall automatically be renewed for additional
successive one (1) year terms unless either party shall give to the
other not less than sixty (60) days written notice of termination
prior to the expiration date of the then - current term.
3. CHARGES AND PAYMENT.
3.1 All Usage Charges for services provided by NVT under this
Agreement are set forth in Exhibit A, which charges are subject
to change as hereinafter provided.
3.2 Usage Charges and other charges for services provided under this
Agreement shall be billed weekly (Monday to Sunday) and the
undisputed amount shall be paid by CUSTOMER to NVT, without
demand or setoff, within 3 days after the date of the NVT
invoice. NTVT reserves the right to cancel services immediately
if a disagreement arises on any disputed amounts.
3.3 Any undisputed amount not received by NVT on the due date
specified above will be deemed past due. Any past due amounts are
subject to a late charge in the amount of one and one-half
percent (1.5%) per month compounded monthly, or the maximum rate
allowed by law, whichever is less, from the due date until
payment is received by NVT.
3.4 In case the CUSTOMER disputes any billing of NVT, CUSTOMER must
pay the full undisputed amount within the time frames set forth
in Section 3.2. A description of the disputed billing must be
delivered to NVT in writing within 10 days of the invoice, and
Customer will set aside the disputed amount in a separate account
for up to 30 days while the Parties attempt to resolve the dispute.
3.5 NVT reserves the right to increase the Usage Charges, Monthly
Recurring Charges and service charges hereunder upon at least 15
(fifteen) days prior notice to CUSTOMER,
1
<PAGE>
provided CUSTOMER may elect to terminate this Agreement without
penalty in the event of any such increase. In order to exercise
such election to terminate, CUSTOMER must give NVT written notice
of such election within (15) days after the date of the notice of
increase from NVT.
3.6 NVT may require Customer to make a Deposit or an Advance Payment
or both to be held as a guarantee for the payment of charges. The
Deposit or Advance Payment shall not exceed an amount equal to
one month's estimated usage. A Deposit does not relieve the
Customer of the responsibility for the prompt payment of bills on
presentation.
In the event of cancellation, the Deposit will be applied toward
the Customer's final bill and any remainder will be returned to
the Customer within 90 days after the service has been disconnected.
4. TAX EXEMPTION CERTIFICATE. Should CUSTOMER claim an exemption from
any sales, use, or other tax, the CUSTOMER shall provide such
exemption information to NVT. It will be the responsibility of
CUSTOMER to make sure that its proof of exempt status remains current.
In no event shall NVT be liable for any taxes due by CUSTOMER and
CUSTOMER hereby indemnifies NVT against any such claims for taxes by
any tax in authority or party acting on behalf of such taxing authority.
5. LIMITATION OF LIABILITY. NVT'S LIABILITY HEREUNDER IS LIMITED TO
DIRECT DAMAGES ONLY. NVT WILL NOT BE RESPONSIBLE FOR CONSEQUENTIAL,
INCIDENTAL, SPECIAL OR INDIRECT LOSS OR DAMAGE OF ANY KIND. NVT SHALL
HAVE NO LIABILITY WHATSOEVER FOR ANY LOSS, COST OR EXPENSE ARISING
FROM THE DELAY OF ANY TELEPHONE OPERATING COMPANY, LOCAL EXCHANGE
CARRIER, OR ANY OTHER THIRD PARTY, ABSENT GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT ON THE PART OF NVT.
6. INDEMNIFICATION. CUSTOMER hereby indemnifies and holds harmless NVT,
its affiliates, their respective officers, directors, shareholders,
employees, agents, successors and assigns, and each of them, from and
against any and all damages, losses, claims, liabilities, demands,
charges, suits, penalties, costs of expenses, whether accrued,
absolute, contingent or otherwise, including but not limited to court
costs and attorney's fees, which any of the foregoing may incur or to
which any of the foregoing may be subjected, arising out of or
otherwise based upon any of the following:
6.1 Any breach or default by CUSTOMER under any of the provisions of
this Agreement or of any other agreement or instrument to which
NVT or an affiliate is a party or which is in favor of NVT or an
affiliate of NVT;
6.2 Claims of any third person or entity for libel, slander,
infringement of copyright, or unauthorized use of trademark,
trade name, or service mark arising out of material, data,
information, or other content transmitted by CUSTOMER over NVT's
networks; or
6.3 Any act or omission of CUSTOMER or its agents, servants,
employees, contractors, or representatives.
2
<PAGE>
For purposes of this Agreement, an "affiliate" of NVT includes any
person or entity controlling, controlled by or under common control
with NVT.
7. SUSPENSION OF SERVICE; TERMINATION OF AGREEMENT. In the event CUSTOMER:
a. Breaches any provision of this Agreement including but not
limited to the provisions regarding payment; or
b. Files or initiates proceedings or has proceedings filed or
initiated against it, relating to its liquidation, insolvency,
reorganization or relief (such as the appointment of a trustee,
receiver, liquidator, custodian or other official) under any
bankruptcy, insolvency or other similar law or makes an
assignment for the benefit of its creditors or enters into an
agreement for the composition, extension or readjustment of its
obligations in connection with the foregoing;
Then NVT may, upon notice to CUSTOMER, at the NVT's option and in
addition to such other rights or remedies as it may have under this
Agreement, at law or in equity, without incurring any liability: (i)
suspend service to CUSTOMER until such time that such circumstance is
corrected (provided NVT shall not be prohibited from terminating this
Agreement after suspending service); (ii) declare all charges that
have been billed to CUSTOMER by NVT to be immediately due and payable,
whereupon all such amounts shall become immediately due and payable;
or (iii) terminate this Agreement.
8. CROSS DEFAULT/CROSS TERMINATION. NVT, at its option, may also
terminate services provided to CUSTOMER under this Agreement upon at
least (30) days notice to CUSTOMER, in addition to such other rights
or remedies as NVT may have under any agreement, at law or in equity,
in the event CUSTOMER or any affiliate of CUSTOMER breaches any
provision of any other agreement or instrument with or in favor of NVT
or any affiliate of NVT.
9. FORCE MAJEURE. Notwithstanding anything to the contrary herein, NVT
shall not be liable to CUSTOMER or any other person or entity for
damages, or deemed to be in breach of this Agreement, due to causes
outside of NVT's reasonable control, including, without limitation,
acts of God, fire, explosion, vandalism, storm or other natural
occurrences; any law, order, regulation, direction, action or request
of the United States government or of any government (including
without limitation, state and local governments having jurisdiction
over any of the parties) or of any department, agency, commission,
court, bureau, corporation or other instrumentality of any one or more
of such governments, or of any civil or military authority; national
emergencies; insurrection; riots; wars; strikes, lockouts, work
stoppage or other such labor difficulties; or any act or omission of
any other person or entity.
10. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns. CUSTOMER may not assign, delegate, or transfer any
of its rights or obligations hereunder without the prior written
consent of NVT. For purposes hereof, the following also constitutes
an assignment: (a) any merger, consolidation or reorganization to
which CUSTOMER is a party, (b) the sale or transfer of all or
substantially all the assets of CUSTOMER, or (c) the sale, issuance or
transfer of any voting securities of CUSTOMER which results in a
change in control of CUSTOMER.
3
<PAGE>
11. WAIVER. The delay or failure of NVT to enforce or insist upon
compliance with any of the terms or conditions of this Agreement or to
exercise any remedy provided herein, the waiver of any term or
condition of this Agreement, or the granting of an extension of time
for performance shall not constitute the permanent waiver of any term,
condition or remedy of or under this Agreement, and this Agreement and
each of its provision shall remain at all times in full force and
effect unless and until modified as provided herein.
12. NOTICES. All notices required by this Agreement shall be assumed to
have been delivered when sent in a sealed envelope, postage prepaid
and sent either express or overnight delivery or registered or
certified mail, return receipt requested and addressed to each party
as follows:
If to NVT: NetVoice Technologies, Inc.
13747 Montfort Dr., Ste. 250
Dallas, Texas 75240
Attention: Jeff Rothell
If to CUSTOMER: ValuLine Inc.
----------------------------------
PO Box 21098
----------------------------------
Albuquerque, NM 87154-1098
----------------------------------
----------------------------------
13. SEVERABILITY. If any term, covenant, or condition of this Agreement
or the application thereof to any person or circumstance shall be
determined to any extent to be invalid or unenforceable, the remainder
of this Agreement, or the application of such term, covenant, or
condition to persons or circumstances other than those as to which it
is held invalid or unenforceable, shall not be affected by such
determination.
14. SURVIVAL. The covenants and agreements of CUSTOMER contained in this
Agreement with respect to payment of amounts due and indemnification
shall survive any termination of this Agreement.
15. HEADINGS. Headings contained herein are provided for convenience and
reference only and do not affect or limit the interpretation, contents
or terms of this Agreement.
16. GOVERNING LAW AND CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE VALIDITY AND
PERFORMANCE HEREOF SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE
STATE OF TEXAS AND CUSTOMER HEREBY CONSENTS TO THE JURISDICTION OF THE
COURTS OF SAID STATE WITH RESPECT TO ANY DISPUTE, CONTROVERSY OR OTHER
MATTER RELATING TO OR ARISING OUT OF THIS AGREEMENT.
17. EXECUTION. This Agreement may be executed in counterparts and each of
such counterparts shall, for all purposes, be deemed to be an original
but all together only one Agreement.
18. THIRD PARTIES. Nothing contained in this Agreement or in any
instrument or document executed by any party in connection with the
transactions contemplated hereby shall create any
4
<PAGE>
rights in, or be deemed to have been executed for the benefit of, any
person or entity that is not a party hereto or a successor or
permitted assign of a party hereto.
19. REGULATORY CHANGES. In the event of any regulatory, judicial, or
legislative body having jurisdiction over the way in which services
referenced herein are provided, materially changes the scope, terms,
or operating conditions of this Agreement, NVT may terminate this
agreement in its sole discretion without penalty.
20. ADDITIONAL PROVISIONS.
A. Nothing herein shall be construed as conveying any interest in
any property of NVT, and CUSTOMER shall not represent that such
conveyance has occurred.
B. The provision of service by NVT is subject to the condition that
the service will not be used for any unlawful purpose.
21. ENTIRE AGREEMENT. This Agreement, including its Exhibits, constitutes
the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior or contemporaneous agreements,
whether written or oral, between NVT and CUSTOMER. No waiver,
alteration or modification of any of the provisions of this Agreement,
shall be binding unless in writing and signed by a duly authorized
representative of the parties; provided, however, that only written
notice to CUSTOMER is required to increase service rates in accordance
with Section 3.6.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year above written as the effective date.
NetVoice Technologies, Inc. CUSTOMER
By: /s By: /s/
----------------------------- ----------------------------
Jeff Rothell
Name:
--------------------------
(Print Name)
Title: President Title:
--------------------------
Date: Date:
--------------------------- --------------------------
5
<PAGE>
EXHIBIT A
----------
NETVOICE TECHNOLOGIES, INC.
---------------------------
TERMINATION SERVICE
NVT will terminate/originate telecommunications received from Customer by
means of a DS1/DS3 interconnection at one of NVT's points of presence.
Calls may be terminated/originated locally, i.e., to/from the NPA/NXX
numbers associated with that point of presence ("Local
Termination/Origination"), and terminated in/originated from other cities
in which NVT has a point of presence ("on-net cities"). NVT's on-net
cities are listed on Exhibit B. The following charges will apply:
LOCAL TERMINATION TO ONNET CITIES:
$.018 per minute billed with 6 second minimum and 6 second increments.
LOCAL ORIGINATION FROM ONNET CITIES:
$.018 per minute billed with 6 second minimum and 6 second increments.
NetVoice Technologies, Inc. CUSTOMER
By: /s By: /s/
----------------------------- ----------------------------
Jeff Rothell
Name:
--------------------------
6
<PAGE>
EXHIBIT B
----------
NETVOICE TECHNOLOGIES, INC.
---------------------------
TERMINATION/ORIGINATION SERVICE
-------------------------------
NPA/NXX LISTINGS AVAILABLE
--------------------------
Dallas Ft. Worth
Houston Austin
San Antonio El Paso
Oklahoma City Tulsa
Atlanta New Orleans
Denver Kansas City
Orlando Tampa
Miami/Ft. Lauderdale Jacksonville
Little Rock Albuquerque
Portland Phoenix
Chicago (10/99) New York (10/99)
Los Angeles (11/99)
7
EXHIBIT 10.13
TELECOMMUNICATIONS SERVICE AGREEMENT
Pursuant to this agreement ("Agreement"), entered into between Brooks
Fiber Communications of NVT Inc. ("BFC") and the customer identified on
the reverse hereof ("Customer")(each of BFC and Customer a "party"). BFC
agrees to provide and Customer agrees to purchase the services and/or
equipment ("Services" and/or "Leased Equipment") described on the reverse
side hereof or in addenda attached hereto (each a "Service Description")
at the prices and on the terms and conditions stated in such Service
Description and below, and as provided in relevant tariffs. Addenda
executed from time to time shall become part of this Agreement by
reference hereto. Each Service Description may describe (i) the
requested service commencement date ("Requested Service Date"), (ii) the
agreed duration of Customer's purchase ("Term"), (iii) the recurring
charge ("Service Charge"), install charge and any other charges, and (iv)
other pertinent information.
1. INITIATION AND TERM OF SERVICE: With respect to each Service
Description, the Term shall begin on the later of the Requested Service
Date or the day following the date on which BFC notifies Customer that
the Service is ready for use ("Service Commencement Date") and shall
continue for the applicable Term. At the expiration of the Term, this
Agreement shall continue in effect with respect to the Service on a
month-to-month basis, until canceled by either party on 30 days notice;
provided, however, that the Service Charge during such period shall be
the then current monthly rate provided by tariff or BFC's standard price
list. Customer shall be responsible for obtaining and maintaining rights-
of-way and facilities required for access from BFC's network to
Customer's premises, as well as necessary space and other facilities for
BFC and Customer equipment.
2. PAYMENT: Except as otherwise required by tariff, Customer agrees to
pay BFC monthly throughout the Term, on the Service Commencement Date and
on the first day of each monthly (or other) billing period thereafter, a
Service Charge at the rate stated as "Recurring" charge for each Service
Description. The first Service Charge shall be prorated from the Service
Commencement Date through the end of the calendar month in which the
Service Commencement Date occurs. The non-recurring charges and other
charges are payable with the first Service Charge. Except as otherwise
agreed, BFC shall submit monthly invoices to Customer, and payment of all
charges shall be due at the address shown on the invoice no later than 30
days after the invoice date ("Due Date"). Any amounts not paid within 15
days after the Due Date ("Delinquent Charges") will be subject to a late
charge of 1.5% per month or the maximum lawful rate, whichever is lower
("Late Charge"). Any applicable surcharge, federal, state, local use,
excise, or sales tax or similar levy, chargeable to or against BFC
because of the Service provided to Customer, shall be charged to and paid
by Customer in addition to the Service Charge and other charges under
this Agreement. Customer agrees to pay all costs, including reasonable
attorney's fees, expended in collecting Delinquent Charges.
3. SUSPENSION OR TERMINATION OF SERVICE: BFC may suspend or terminate
Service (i) if Customer fails to pay all Delinquent Charges within 7 days
after written notice of termination or (ii) if Customer fails, within 30
days after written notice, to comply with this Agreement or any
applicable tariff. No such suspension or termination shall be deemed an
Interruption, as defined in Section 4, below.
4. INTERRUPTION OF SERVICE; CREDIT: For any interruption of Service
("Interruption") that is not due to negligence or noncompliance with this
Agreement on the part of Customer or the operation or the malfunction of
facilities, power, or equipment provided by the Customer, Customer will
receive a credit for the period during which Service was interrupted. An
Interruption begins when the Customer reports a service facility or
circuit to be interrupted and releases it for testing and repair. An
Interruption ends when the service, facility, or circuit is operating
properly. Credit allowances are calculated on the basis of a 30-day
month; and the credit shall be a pro-rata allowance against the Service
Charge for the interrupted Service based on the duration of the
interruption, as follows:
DURATION OF INTERRUPTION: AMOUNT OF CREDIT
------------------------------------------
First 30 minutes: None 30 minutes to 3 hours: 1/10 day
Each additional 3 hour period (or fraction thereof): 1/5 day
Two or more interruptions of 15 minutes or more during any one 24-hour
period shall be considered a single interruption. No more than one full
day's credit will be allowed for any period of 24 hours.
5. LIMITATION OF LIABILITY; LIMITATION OF WARRANTY: EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN, IN NO EVENT SHALL BFC BE LIABLE FOR ANY
DAMAGES, EITHER DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL,
ACTUAL OR PUNITIVE, OR ANY LOST PROFITS OF ANY KIND, ARISING OUT OF
MISTAKES, ACCIDENTS, ERRORS, OMISSIONS, INTERRUPTIONS, DELAYS, OR DEFECTS
IN TRANSMISSION, (INCLUDING THOSE WHICH MAY BE REQUIRED FOR COMPLIANCE
WITH RULES OR ORDERS OF REGULATORY OR JUDICIAL AUTHORITIES), ARISING OUT
OF OR RELATED TO THIS AGREEMENT OR THE OBLIGATIONS OF BFC HEREUNDER.
CUSTOMER AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OF
BFC'S PERFORMANCE HEREUNDER SHALL BE CREDIT FOR SERVICE INTERRUPTION AS
PROVIDED IN SECTION 4, ABOVE OR APPLICABLE TARIFF. BFC MAKES NO
WARRANTY, EXPRESS, IMPLIED OR STATUTORY, AS TO THE DESCRIPTION, QUALITY,
MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PURPOSE OF ANY SERVICE,
OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES ARE HEREBY EXCLUDED
AND DISCLAIMED.
6. CANCELLATION: (A) If a Service Commencement Date does not occur
within 90 days after the Requested Service Date, Customer may cancel this
Agreement with respect to such Service without liability for any
cancellation charge, by 30 days written notice to BFC. (B) Except as
permitted in subsection (A), if Customer cancels any Service, or if BFC
terminates any Service pursuant to Section 3 above, then Customer shall
pay BFC a cancellation charge in the amount of 50% of the remaining
Service Charge payable during the remainder of the Term. (C) Either
party may cancel this Agreement without liability if BFC is prohibited
from furnishing Service or if any material rate or term contained herein
is substantially changed by final order of a court, administrative agency
or other tribunal of competent jurisdiction.
7. NON-TARIFFED SERVICES AND EQUIPMENT. The provision by BFC and the
purchase or lease by Customer of non-tariffed services and/or equipment
in connection with this Agreement shall be subject to the terms and
conditions of this Agreement except as superseded by the terms and
conditions of any pertinent addenda attached hereto.
8. FORCE MAJEURE: If BFC's performance hereunder is impaired by any
cause beyond BFC's reasonable control, including without limitation acts
of God, fire, explosion, materially adverse weather condition, inability
to obtain needed utilities or services, accidents, breakdown of
equipment, machinery or facilities, radiation, compliance with applicable
law or regulation, public emergency, civil strife, war or strike ("Force
Majeure Condition"), then such performance shall be excused to the extent
of such impairment. BFC shall resume performance with reasonable
dispatch after cessation of the Force Majeure Condition. If BFC's
performance is impaired by a Force Majeure Condition for a period
exceeding sixty (60) days, Customer may cancel the affected Service
without liability for a cancellation charge.
9. ADDITIONAL PROVISIONS: (A) NON-WAIVER. The failure of either party
to give notice of default or to enforce or insist upon compliance with
any of the terms or conditions of this Agreement shall not constitute a
waiver of any term or condition hereof, and the waiver of any term or
condition of this Agreement, or the granting of an extension of time for
performance shall not constitute a waiver or extension of time with
respect to any other matter, including future application of the same
provision. (B) DISPUTES - ARBITRATION. Except for disputes regarding
Customer's failure to pay for Service as provided in this Agreement, if
any dispute cannot be resolved by negotiation between the parties, either
party may by notice require that the dispute by submitted to binding
arbitration by a single arbitrator, at a location reasonably selected by
the party giving such notice, under the Commercial Arbitration Rules of
the American Arbitration Association. (C) ENTIRE AGREEMENT. This
Agreement, including Addenda and matters incorporated herein by
reference, contains the entire understanding of the parties and
supersedes any prior quotations, proposals, arrangements, or
understandings relating to the subject matter hereof. No subsequent
agreement between the parties
<PAGE>
concerning Service shall be effective unless contained in a writing
signed by both parties. (D) ASSIGNMENT. Customer may not assign or
transfer its rights or obligations under this Agreement without the prior
written consent of BFC, which shall not be unreasonably withheld. (E)
NOTICES. Required or permitted notices shall be in writing and delivered
by registered or certified mail return receipt requested, postage
prepaid, if to Customer, to a person identified as a "Service Contact"
and if to BFC, to Contract Administrator, Brooks Fiber Properties, Inc.,
425 Woods Mill Road South, Suite 300, Town and Country Missouri 63017, or
as otherwise provided by proper notice hereunder, and the effective date
of any notice under this Agreement shall be the date of receipt or
refusal of delivery. (F) REGULATORY JURISDICTION. Provision by BFC of
Service and other matters related to this Agreement are subject to
applicable federal, state and local regulatory authority.
(G) SEVERABILITY. Each Service described in a Service Description is
deemed a separate Service, and termination of any Service shall not
affect any other Services. (H) PARTIAL INVALIDITY. If any provision of
this Agreement shall be held invalid or unenforceable under applicable
law, the remainder shall not thereby be affected and shall be given full
effect. (I) CONFIDENTIALITY. Except with consent of the other party or
as required by law or court order, neither party will disclose the
existence of this Agreement or any information regarding its terms or the
parties' performance hereunder ("Confidential Information") to any third party.
10. SPECIAL PROVISIONS:
Except with respect to non-tariffed services and Leased Equipment, all
terms and conditions of this Agreement are subject to applicable state
and federal tariffs which are
incorporated herein by reference. In case of any conflict between the
provisions hereof and relevant tariff provisions, the provisions of the
tariff shall control. Information
regarding tariffs can be obtained from BFC's sales offices or by
contacting the Contract Administrator at the address in section 9(E) above.
Form effective 1/97.
<PAGE>
BROOKS AGREEMENT 73606 DATE___________
FIBER TELECOMMUNICATIONS SERVICE AGREEMENT
COMMUNICATIONS
CUSTOMER INFORMATION
- -------------------------------------------------------------------------
ORDERING INFORMATION
ORDERED BY BILL BEDRI PO NUMBER______________ DATE 4/2/98
COMPANY NETVOICE TECHNOLOGIES PHONE 972-788-2988 FAX 972-788-2995
STREET 13747 MONTFORT DR. TYPE OF BUSINESS IP TELEPHONY
CITY, STATE, ZIP DALLAS, TX 75240
BILLING INFORMATION
COMPANY NAME SAME AS ABOVE PHONE______________________________
BILL TO_________________________ FAX________________________________
STREET__________________________ CITY, STATE, ZIP___________________
CREDIT INFORMATION
BUSINESS CUSTOMER
[ ] SOLE PROPRIETORSHIP [ ] PARTNERSHIP [ ] CORPORATION
FEDERAL TAX ID_______________
YEARS IN BUSINESS____ BANK NAME______________ CONTACT________ PHONE______
TRADE REFERENCE______________________ PHONE_____________
TRADE REFERENCE______________________ PHONE_____________
TRADE REFERENCE______________________ PHONE_____________
INDIVIDUAL SS#_________________________ CREDIT SCORE_____________________
SERVICE INFORMATION SUMMARY
- -------------------------------------------------------------------------
[ ] Move [ ] Add To Reference Agreement #___________________
[ ] New Install [ ] Replace Comments____________________________
Product Type [ ] Local Switched [ ] Dedicated [ ] Long Distance
[ ] Other Requested Service Date__________________________
SERVICE CONTACTS
- -------------------------------------------------------------------------
Name ______________ Phone____________ Physical Address: Room, Floor _____
Name ______________ Phone____________ Street_____________________________
Test Turn Up Pager#__________ Building Access Pager #____________________
City, State, Zip___________________________________________
PROVIDERS
Current Service Provider_______________________________
Current Equipment Provider_____________________________
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------
LENGTH OF TOTAL CHARGES
TELECOMMUNICATIONS SERVICES TERM QUANTITY INSTALL RECURRING FORMS ATTACHED
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Gateway S1 Digital PBX Trunks 2 3 2265 2490
Outbound
- ---------------------------------------------------------------------------------------
Gateway S1 Digital PBX Trunk 2 1 865 1041
2-way DID
- ---------------------------------------------------------------------------------------
Houston For Internal Use
- ------- Only
- ---------------------------------------------------------------------------------------
Other Special Service Request
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
Total Agreement 3130 3531
- ---------------------------------------------------------------------------------------
</TABLE>
[ ] Customer responsible for cancellation of current carrier service. If
yes, Customer initials______________________
[ ] Brooks Fiber Communications responsible for cancellation of current
carrier service
ACCEPTANCE
- -------------------------------------------------------------------------
Subject to the terms and conditions on the reverse side hereof.
Agreed By /s/ BILL BEDRI Title President Date 9/2/98
------------------ ---------------- -------------
Customer
Agreed By /s/ Title Dir. Mkting Date 4/2/98
------------------ ---------------- -------------
Brooks Fiber Communications
Sales Representative
-----------------------------
Brooks Fiber Communications
Code______________ Phone #___________________ Date________________
White - Brooks Corporate Canary - Customer Copy Pink - Regional Office
Copy
<PAGE>
BROOKS
FIBER
PROPERTIES
ORDERED BY BILL BEDRI PO NUMBER 98021900100 DATE 02/19/98
COMPANY NETVOICE TECHNOLOGIES PHONE 972-424-1701 FAX 972-881-8708
STREET 14606 DALLAS PARKWAY TYPE OF BUSINESS Telecommunications
SUITE 1118
CITY, STATE, ZIP DALLAS, TX 75240
BILLING INFORMATION
CO NAME NetVoice Technologies PHONE 972-424-1701
BILL TO Accounts Payable FAX 972-881-8708
STREET 14606 Dallas Parkway CITY, ST Dallas, TX 75074
Suite 1118
CREDIT INFORMATION
BUSINESS CUSTOMER
[ ] SOLE PROPRIETORSHIP [ ] PARTNERSHIP [X] CORPORATION
FEDERAL TAX ID_______________
YEARS IN BUSINESS____ BANK NAME______________ CONTACT________ PHONE______
TRADE REFERENCE______________________ PHONE_____________
TRADE REFERENCE______________________ PHONE_____________
TRADE REFERENCE______________________ PHONE_____________
INDIVIDUAL SS#_________________________ CREDIT SCORE_____________________
SERVICE INFORMATION SUMMARY
- -------------------------------------------------------------------------
Requested Service Date: 03/31/98
----------------------------
[ ] Move [ ] Add To Reference Agreement #___________________
[X] New Install [ ] Replace Comments________________________________
Product Type [ ] Local Switched [ ] Dedicated [ ] Data [ ] Long
Distance [ ] Other
SERVICE CONTACTS
- -------------------------------------------------------------------------
Name Fred Rackers Phone 214-693-3427 Physical Address: Rm, Fl _____
Name Bill Bedri Phone 972-716-9212 Street_____________________________
Test Turn Up Pager#__________ Building Access Pager #____________________
City, State, Zip___________________________________________
PROVIDERS
- -------------
Current Service Provider_______________________________
Current Equipment Provider Inter-Tel
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------
LENGTH OF TOTAL CHARGES
TELECOMMUNICATIONS SERVICES TERM QTY INSTALL RECURRING FORMS ATTACHED
<S> <C> <C> <C> <C> <C>
Collaction Facilities 1 1 $0.00 $378.00
AC Power 20 1 $0.00 $59.60
Other Special Service Request
Total Agreement $0.00 $437.60
- ---------------------------------------------------------------------------------------
</TABLE>
[ ] Customer responsible for cancellation of current carrier service. If
yes, Customer initials______________________
[ ] Brooks Fiber Communications responsible for cancellation of current
carrier service
ACCEPTANCE
- -------------------------------------------------------------------------
SUBJECT TO THE TERMS AND CONDITIONS ON THE REVERSE SIDE HEREOF.
AGREED BY (CUSTOMER): BILL BEDRI TITLE PRESIDENT DATE 8/19/98
------------ -------------- --------
AGREED BY (BFC): TITLE DATE
----------------- -------------- ---------
SALES REPRESENTATIVE (BFC):_________________________________
CODE______________ PHONE #___________________ DATE________________
EXHIBIT 10.14
CARRIER SERVICE AGREEMENT
-------------------------
This Service Agreement ("Agreement") is made as of the 20th day of
November, 1998 ("Effective Date"), by and between NetVoice Technologies,
Inc. (NVT), with its principal office at 13747 Montfort Dr., Ste. 101,
Dallas, Texas 75240, and CAPROCK COMMUNICATIONS with its principal office
at 13455 NOEL ROAD, SUITE 1925, DALLAS, TX hereinafter called ("CUSTOMER").
WHEREAS, CUSTOMER is a common carrier that has requested that NVT provide
the services described in Exhibits A and B and CUSTOMER agrees to accept
said services pursuant to the terms hereof;
NOW, THEREFORE, the parties agree as follows:
1. SERVICES. NVT agrees to furnish CUSTOMER telecommunications
services set forth in Exhibit A and Exhibit B to this Agreement, at
the rates set forth therein and subject to the terms and conditions
contained in this Agreement.
2. TERM. The term of this Agreement shall commence on the Effective
Date and will continue for a period of one (1) year. After the
initial term, this Agreement shall automatically be renewed for
additional successive one (1) year terms unless either party shall
give to the other not less than sixty (60) days written notice of
termination prior to the expiration date of the then - current term.
3. CHARGES AND PAYMENT.
3.1 All Usage Charges and Monthly Recurring Charges for services
provided by NVT under this Agreement are set forth in Exhibit
A, which charges are subject to change as hereinafter provided.
3.2 Monthly Recurring Charges, Usage Charges and other charges for
services provided under this Agreement shall be payable as follows:
3.2.1 All Monthly Recurring Charges for services provided
under this Agreement will be billed in advance of
usage and shall be paid by CUSTOMER to NVT, without
demand or setoff, within 5 days after the date of the
NVT invoice.
3.2.2 All Usage Charges, if applicable, for services
provided under this Agreement will be billed
following the month in which actual usage occurred
and shall be paid by CUSTOMER to NVT, without demand
or setoff, within 10 days after the date of the NVT
invoice.
3.3 Any amount not received by NVT on the due date specified above
will be deemed past due. Any past due amounts are subject to a
late charge in the amount of one and one-half percent (1.5%)
per month compounded monthly, or the maximum rate allowed by
law, whichever is less, from the due date until payment is
received by NVT.
1
<PAGE>
3.4 In case the CUSTOMER disputes any billing of NVT, CUSTOMER must
pay the full amount within the time frames set forth in
Sections 3.2.1 and 3.2.2. A description of the disputed
billing must be delivered to NVT in writing within 10 days of
the invoice, and NVT will set aside the disputed amount in a
separate account for up to 30 days while the Parties attempt to
resolve the dispute.
3.5 NVT reserves the right to increase the Usage Charges, Monthly
Recurring Charges and service charges hereunder upon at least
forty-five (45) days prior notice to CUSTOMER, provided
CUSTOMER may elect to terminate this Agreement without penalty
in the event of any such increase. In order to exercise such
election to terminate, CUSTOMER must give NVT written notice of
such election within (15) days after the date of the notice of
increase from NVT.
4. TAX EXEMPTION CERTIFICATE. Should CUSTOMER claim an exemption from
any sales, use, or other tax, the CUSTOMER shall provide such
exemption information to NVT. It will be the responsibility of
CUSTOMER to make sure that its proof of exempt status remains
current. In no event shall NVT be liable for any taxes due by
CUSTOMER and CUSTOMER hereby indemnifies NVT against any such claims
for taxes by any tax in authority or party acting on behalf of such
taxing authority.
5. LIMITATION OF LIABILITY. NVT'S LIABILITY HEREUNDER IS LIMITED TO
DIRECT DAMAGES ONLY. NVT WILL NOT BE RESPONSIBLE FOR CONSEQUENTIAL,
INCIDENTAL, SPECIAL OR INDIRECT LOSS OR DAMAGE OF ANY KIND. NVT
SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY LOSS, COST OR EXPENSE
ARISING FROM THE DELAY OF ANY TELEPHONE OPERATING COMPANY, LOCAL
EXCHANGE CARRIER, OR ANY OTHER THIRD PARTY, ABSENT GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT ON THE PART OF NVT.
6. INDEMNIFICATION. CUSTOMER hereby indemnifies and holds harmless
NVT, its affiliates, their respective officers, directors,
shareholders, employees, agents, successors and assigns, and each of
them, from and against any and all damages, losses, claims,
liabilities, demands, charges, suits, penalties, costs of expenses,
whether accrued, absolute, contingent or otherwise, including but
not limited to court costs and attorney's fees, which any of the
foregoing may incur or to which any of the foregoing may be
subjected, arising out of or otherwise based upon any of the
following:
6.1 Any breach or default by CUSTOMER under any of the provisions
of this Agreement or of any other agreement or instrument to
which NVT or an affiliate is a party or which is in favor of
NVT or an affiliate of NVT;
2
<PAGE>
6.2 Claims of any third person or entity for libel, slander,
infringement of copyright, or unauthorized use of trademark,
trade names, or service mark arising out of material, data,
information, or other content transmitted by CUSTOMER over
NVT's networks; or
6.3 Any act or omission of CUSTOMER or its agents, servants,
employees, contractors, or representatives.
For purposes of this Agreement, an "affiliate" of NVT includes any
person or entity controlling, controlled by or under common control
with NVT.
7. SUSPENSION OF SERVICE; TERMINATION OF AGREEMENT. In the event CUSTOMER:
a. Breaches any provision of this Agreement including but not
limited to the provisions regarding payment; or
b. Files or initiates proceedings or has proceedings filed or
initiated against it, relating to its liquidation, insolvency,
reorganization or relief (such as the appointment of a trustee,
receiver, liquidator, custodian or other official) under any
bankruptcy, insolvency or other similar law or makes an
assignment for the benefit of its creditors or enters into an
agreement for the composition, extension or readjustment of its
obligations in connection with the foregoing;
Then NVT may, upon notice to CUSTOMER, at the NVT's option and in
addition to such other rights or remedies as it may have under this
Agreement, at law or in equity, without incurring any liability; (i)
suspend service to CUSTOMER until such time that such circumstance
is corrected (provided NVT shall not be prohibited from terminating
this Agreement after suspending service; (ii) declare all charges
that have been billed to CUSTOMER by NVT to be immediately due and
payable, whereupon all such amounts shall become immediately due and
payable; or (iii) terminate this Agreement.
8. CROSS DEFAULT/CROSS TERMINATION. NVT, at its option, may also
terminate services provided to CUSTOMER under this Agreement upon at
least (30) days notice to CUSTOMER, in addition to such other rights
or remedies as NVT may have under any agreement, at law or in
equity, in the event CUSTOMER or any affiliate of CUSTOMER breaches
any provision of any other agreement or instrument with or in favor
of NVT or any affiliate of NVT.
9. FORCE MAJEURE. Notwithstanding anything to the contrary herein, NVT
shall not be liable to CUSTOMER or any other person or entity for
damages, or deemed to be in breach of this Agreement, due to causes
outside of NVT's reasonable control, including, without limitation,
acts of God, fire, explosion, vandalism, storm or other natural
occurrences; any law, order, regulation, direction, action or
request of the United States government or of any government
(including without limitation, state and local governments having
jurisdiction over any of the parties) or of any department, agency,
commission, court, bureau, corporation or other instrumentality of
any one or more of such governments, or of any civil or military
authority; national emergencies; insurrection; riots; wars; strikes,
lockouts, work stoppage or other such labor difficulties; or any act
or omission of any other person or entity.
3
<PAGE>
10. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns. CUSTOMER may not assign, delegate, or transfer
any of its rights or obligations hereunder without the prior written
consent of NVT. For purposes hereof, the following also constitutes
an assignment: (a) any merger, consolidation or reorganization to
which CUSTOMER is a party, (b) the sale or transfer of all or
substantially all the assets of CUSTOMER, or (c) the sale, issuance
or transfer of any voting securities of CUSTOMER which results in a
change in control of CUSTOMER.
11. WAIVER. The delay or failure of NVT to enforce or insist upon
compliance with any of the terms or conditions of this Agreement or
to exercise any remedy provided herein, the waiver of any term or
condition of this Agreement or the granting of an extension of time
for performance shall not constitute the permanent waiver of any
term, condition or remedy of or under this Agreement, and this
Agreement and each of its provision shall remain at all times in
full force and effect unless and until modified as provided herein.
12. NOTICES. All notices required by this Agreement shall be assumed to
have been delivered when sent in a sealed envelope, postage prepaid
and sent either express or overnight delivery or registered or
certified mail, return receipt requested and addressed to each party
as follows:
If to NVT: NetVoice Technologies, Inc.
13747 Montfort Dr., Ste. 101
Dallas, Texas 75240
Attention: William Bedri
If to CUSTOMER: CAPROCK COMMUNICATIONS
13455 NOEL ROAD, SUITE 1925
DALLAS, TX 75340-6638
ATT: TINA MARIE GAYNOR
13. SEVERABILITY. If any term, covenant, or condition of this Agreement
or the application thereof to any person or circumstance shall be
determined to any extent to be invalid or unenforceable, the
remainder of this Agreement, or the application of such term,
covenant, or condition to persons or circumstances other than those
as to which it is held invalid or unenforceable, shall not be
affected by such determination.
14. SURVIVAL. The covenants and agreements of CUSTOMER contained in this
Agreement with respect to payment of amounts due and indemnification
shall survive any termination of this Agreement.
15. HEADINGS. Headings contained herein are provided for convenience
and reference only and do not affect or limit the interpretation,
contents or terms of this Agreement.
16. GOVERNING LAW AND CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE VALIDITY AND
PERFORMANCE HEREOF SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE
STATE OF TEXAS AND CUSTOMER HEREBY CONSENTS TO THE JURISDICTION OF
THE COURTS OF SAID STATE WITH RESPECT TO ANY DISPUTE,
4
<PAGE>
CONTROVERSY OR OTHER MATTER RELATING TO OR ARISING OUT OF THIS AGREEMENT.
17. EXECUTION. This Agreement may be executed in counterparts and each
of such counterparts shall, for all purposes, be deemed to be an
original but all together only one Agreement.
18. THIRD PARTIES. Nothing contained in this Agreement or in any
instrument or document executed by any party in connection with the
transactions contemplated hereby shall create any rights in, or be
deemed to have been executed for the benefit of, any person or
entity that is not a party hereto or a successor or permitted assign
of a party hereto.
19. REGULATORY CHANGES. In the event of any regulatory, judicial, or
legislative body having jurisdiction over the way in which services
referenced herein are provided, materially changes the scope, terms,
or operating conditions of this Agreement, NVT may terminate this
agreement in its sole discretion without penalty.
20. ADDITIONAL PROVISIONS.
A. Nothing herein shall be construed as conveying any interest in
any property of NVT, and CUSTOMER shall not represent that such
conveyance has occurred.
B. The provision of service by NVT is subject to the condition
that the service will not be used for any unlawful purpose.
21. ENTIRE AGREEMENT. This Agreement, including its Exhibits,
constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes al prior or contemporaneous
agreements, whether written or oral, between NVT and CUSTOMER. No
waiver, alteration or modification or any of the provisions of this
Agreement, shall be binding unless in writing and signed by a duly
authorized representative of the parties; provided, however, that
only written notice to CUSTOMER is required to increase service
rates in accordance with Section 3.6.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year above written as the effective date.
NetVoice Technologies, Inc. CUSTOMER
By: /s/ WILLIAM BEDRI By: /s/ TINA MARIE GAYNOR
--------------------------- ------------------------------
William Bedri
Name: Tina Marie Gaynor
----------------------------
(Print Name)
Title: President Title: V.P. Network Serv
---------------------------
Date: 11/24/98 Date: 11-20-98
------------------------- ----------------------------
5
<PAGE>
EXHIBIT A
---------
NETVOICE TECHNOLOGIES, INC.
---------------------------
TAMPA & JACKSONVILLE TERMINATION SERVICE
NVT will terminate telecommunications received from Customer by means of
a DS1 (T-1) interconnection at one of NVT's points of presence to the
NPA/NXX numbers associated with that point of presence for local
termination, or to the NPA/NXX for the respective point of presence in
other on-net cities for IP Long Haul, as described in Exhibit B for the
following charges:
I P Long Haul Local Termination
------------- -----------------
1 - 4 T-1 $4000 each $4000 each
5 - 12 " " " 3800 "
13- 28 " " " 3600 "
29+ " " " 3400 "
1 P Long Haul Prices are FOB NVT POP. INCLUDES LONG HAUL AND
TERMINATION in local calling area of its on-net cities
Local termination is FOB NVT POP.
Net Voice Technologies, Inc. CUSTOMER
By: /s/ WILLIAM BEDRI By: /s/ TINA MARIE GAYNOR
---------------------------- ------------------------------
William Bedri
Name: Tina Marie Gaynor
----------------------------
6
<PAGE>
EXHIBIT B
---------
NETVOICE TECHNOLOGIES, INC.
---------------------------
Termination Service
NPA/NXX LISTINGS
----------------
Tampa
Jacksonville
Lists to be provided.
7
<PAGE>
CAPROCK
COMMUNICATIONS
Addendum A.2
International Terminating Rates for
NetVoice Technologies, Inc.
Code Country RATE
93 Afghanistan $0.7000
355 Albania $0.2100
213 Algeria $0.2800
664 American Samoa $0.1900
376 Andorra $0.1600
244 Angola $0.2800
NPA 264 Anguilla (Barbuda) $0.2900
672 Antarctica $0.2200
NPA 268 Antigua $0.3400
54 Argentina $0.2500
Argentina, Cellular $0.8000
374 Armenia $0.4000
297 Aruba $0.2100
247 Ascension Island $0.5200
61 Australia $0.0800
Australia, Cellular $0.8000
43 Austria $0.1000
994 Azerbaijan $0.3500
NPA 242 Bahamas $0.1400
973 Bahrain $0.4200
880 Bangladesh $0.6000
NPA 246 Barbados $0.3500
375 Belarus $0.2900
32 Belgium $0.0600
Belgium, Cellular $0.8000
501 Belize $0.4500
229 Benin $0.4200
NPA 441 Bermuda $0.1400
975 Bhutan $0.3800
591 Bolivia $0.3500
387 Bosnia-Herzegovina $0.2700
267 Botswana $0.2500
55 Brazil $0.2700
Brazil, Cellular $0.8000
5511 Brazil, Sao Paulo $0.1500
NPA 284 British Virgin Islands $0.2800
(Confidential and Proprietary)
Page 1 of 8
June 10, 1999
Initials Initials FPR
------- -------
<PAGE>
Addendum A.2
International Terminating Rates for
NetVoice Technologies, Inc.
673 Brunei $0.2900
359 Bulgaria $0.2500
226 Burkina Faso $0.4500
257 Burundi $0.4200
855 Cambodia $0.6700
237 Cameroon $0.5200
238 Cape Verde Island $0.4200
NPA 345 Cayman Islands $0.1800
236 Central Africa Republic $0.5500
235 Chad $0.7700
56 Chile $0.1500
86 China $0.3000
China, Cellular $0.8000
6724 Christmas & Coco Island $0.2500
57 Colombia $0.2800
571 Colombia, Bogata $0.1500
572 Colombia, Cali $0.1500
Colombia, Cellular $0.8000
574 Colombia, Medellin $0.1500
269 Comoros $0.4500
242 Congo $0.4500
682 Cook Island $0.7800
506 Costa Rica $0.1700
Costa Rica, Cellular $0.8000
385 Croatia $0.2400
53 Cuba $0.6000
357 Cyprus $0.2200
42 Czech & Slovak Republic $0.1800
45 Denmark $0.0750
Denmark, Cellular $0.8000
246 Diego Garcia $0.4200
253 Djibouti $0.6000
NPA 767 Dominica $0.4000
NPA 809 Dominican Republic $0.1600
593 Ecuador $0.2700
Ecuador, Cellular $0.8000
20 Egypt $0.4600
(Confidential and Proprietary)
Page 2 of 8
June 10, 1999
Initials Initials FPR
------- -------
<PAGE>
Addendum A.2
International Terminating Rates for
NetVoice Technologies, Inc.
503 El Salvador $0.2800
El Salvador, Cellular $0.8000
240 Equatorial Guinea $0.6500
291 Eritrea $0.7600
372 Estonia $0.1900
251 Ethiopia $0.8000
298 Faeroe Islands $0.2500
500 Falkland Islands $0.2700
679 Fiji Islands $0.6000
358 Finland $0.0800
33 France $0.0600
596 French Antilles/Martinique $0.2800
594 French Guiana $0.3000
689 French Polynesia $0.4000
241 Gabonese $0.4900
220 Gambia $0.4000
995 Georgia $0.3800
49 Germany $0.0700
Germany, Cellular $0.8000
233 Ghana $0.3600
350 Gibraltar $0.2100
30 Greece $0.2300
299 Greenland $0.2300
NPA 473 Grenada $0.4000
590 Guadeloupe $0.3000
NPA 671 Guam $0.0900
5399 Guantanamo $0.2800
502 Guatemala $0.2400
224 Guinea $0.3000
245 Guinea Bissau $0.5900
592 Guyana $0.5600
509 Haiti $0.3900
504 Honduras $0.3900
852 Hong Kong $0.0800
Hong Kong, Cellular $0.8000
36 Hungary $0.1900
354 Iceland $0.1300
(Confidential and Proprietary)
Page 3 of 8
June 10, 1999
Initials Initials FPR
------- -------
<PAGE>
Addendum A.2
International Terminating Rates for
NetVoice Technologies, Inc.
91 India $0.4900
9122 India, Bombay $0.4900
9144 India, Madras $0.4900
9111 India, New Delhi $0.4900
62 Indonesia $0.2800
871 Inmarsat-ATLANTIC EAST $4.5000
874 Inmarsat-ATLANTIC WEST $4.5000
873 Inmarsat-INDIAN OCEAN $4.5000
872 Inmarsat-PACIFIC OCEAN $4.5000
98 Iran $0.5800
964 Iraq $0.6800
353 Ireland $0.0800
Ireland, Cellular $0.8000
972 Israel $0.1300
Israel, Cellular $0.8000
39 Italy $0.1400
225 Ivory Coast (COTE D) $0.7200
NPA 876 Jamaica $0.4200
81 Japan $0.0900
Japan, Cellular $0.8000
962 Jordan $0.4900
Jordan, Cellular $0.8000
7336 Kazakhstan $0.3500
254 Kenya $0.4800
686 Kiribati $0.6500
850 Korea, North $0.5500
82 Korea, South $0.1400
965 Kuwait $0.5400
996 Kyrgyzstan $0.3500
856 Laos $0.5800
371 Latvia $0.2600
961 Lebanon $0.4500
Lebanon, Cellular $1.0000
266 Lesotho $0.3200
231 Liberia $0.3000
218 Libya $0.2500
4175 Liechtenstein $0.1000
(Confidential and Proprietary)
Page 4 of 8
June 10, 1999
Initials Initials FPR
------- -------
<PAGE>
Addendum A.2
International Terminating Rates for
NetVoice Technologies, Inc.
370 Lithuania $0.2600
352 Luxembourg $0.1000
853 Macao $0.2500
389 Macedonia $0.2700
261 Madagascar $0.4700
265 Malawi $0.3000
60 Malaysia $0.1600
960 Maldives $0.5000
223 Mali Republic $0.6200
356 Maita $0.1900
692 Marshall Islands $0.3400
222 Mauritania $0.5100
230 Mauritius $0.5800
691 Micronesia $0.4600
373 Moldova $0.3400
377 Monaco $0.1200
976 Mongolia $0.6400
NPA 664 Montserrat $0.4700
212 Morocco $0.3500
258 Mozambique $0.3000
95 Myanmar (Burma) $0.6700
264 Nambia $0.2400
674 Nauru $0.5900
977 Nepal $0.5900
31 Netherlands $0.0800
Netherlands, Cellular $0.8000
599 Netherlands Antilles $0.2800
687 New Caledonia $0.4000
64 New Zealand $0.0700
505 Nicaragua $0.3600
227 Niger $0.4800
234 Nigeria $0.5800
683 Niue Island $0.6900
NPA 670 North Mariana/Saipan $0.1600
47 Norway $0.0800
Norway, Cellular $0.8000
968 Oman $0.5500
(Confidential and Proprietary)
Page 5 of 8
June 10, 1999
Initials Initials FPR
------- -------
<PAGE>
Addendum A.2
International Terminating Rates for
NetVoice Technologies, Inc.
92 Pakistan $0.6000
680 Palau $0.4100
507 Panama $0.4000
Panama, Cellular $1.0000
675 Papua New Guinea $0.2600
595 Paraguay $0.4200
51 Peru $0.3600
511 Peru, Lima $0.2800
63 Philippines $0.2700
Philippines/Cellular $0.8000
48 Poland $0.2200
351 Portugal/Azores $0.1900
974 Qatar $0.4900
262 Reunion Island $0.2900
40 Romania $0.3100
7 Russia $0.3200
7095 Russia, Moscow $0.1000
7182 Russia, St. Petersburg $0.1500
250 Rwanda $0.6400
378 San Marino $0.2100
239 Sao Tome $0.7800
966 Saudi Arabia $0.5800
221 Senegal Republic $0.5900
248 Seychelles $0.7000
232 Sierra Leone $0.7200
65 Singapore $0.1500
421 Slovakia $0.2400
386 Slovenia $0.2600
677 Solomon Islands $0.4900
252 Somalia $0.5700
27 South Africa $0.2800
34 Spain/Balearic/Canary Islands $0.1200
94 Sri Lanka $0.5800
290 St. Helena $0.5400
NPA 869 St. Kitts-Nevis $0.3400
NPA 758 St. Lucia $0.4100
508 St. Pierre/Miquelon $0.2300
(Confidential and Proprietary)
Page 6 of 8
June 10, 1999
Initials Initials FPR
------- -------
<PAGE>
Addendum A.2
International Terminating Rates for
NetVoice Technologies, Inc.
NPA 784 St. Vincent/Grenadine/Mu $0.4400
249 Sudan $0.3500
597 Suriname $0.5800
268 Swaziland $0.2000
46 Sweden $0.0700
41 Switzerland $0.0800
963 Syria $0.5400
886 Taiwan $0.1800
Taiwan, Cellular $0.8000
992 Tajikistan $0.3500
255 Tanzania $0.4200
66 Thailand $0.3500
228 Togo $0.7000
690 Tokelau $0.7200
676 Tonga $0.6700
NPA 868 Trinidad/Tobago $0.4000
216 Tunisia $0.3100
90 Turkey $0.2400
Turkey, Cellular $0.8000
993 Turkmenistan $0.3500
NPA 649 Turks & Caicos $0.3800
688 Tuvalu $0.6800
256 Uganda $0.3200
380 Ukraine $0.3100
971 United Arab Emirates $0.3500
44 United Kingdom $0.0600
598 Uruguay $0.4200
998 Uzbekistan $0.3500
678 Vanuatu $0.7500
379 Vatican City $0.1500
58 Venezuela $0.2800
Venezuela, Cellular $0.8000
84 Vietnam $0.7500
681 Wallis & Futuna $0.3000
685 Western Samoa $0.5100
967 & 969 Yemem Arab Republic $0.6500
381 Yugoslavia $0.3100
(Confidential and Proprietary)
Page 7 of 8
June 10, 1999
Initials Initials FPR
------- -------
<PAGE>
Addendum A.2
International Terminating Rates for
NetVoice Technologies, Inc.
243 Zaire $0.5100
260 Zambia $0.4000
259 Zanzibar $0.6200
263 Zimbabwe $0.2800
* International rates are subject to change with
three (3) days notice.
* International calls are billed in six (6) second
increments with a thirty (30) second minimum.
* FOB CapRock Dallas POP.
* 150,000 MOU per month per DS-1.
(Confidential and Proprietary)
Page 8 of 8
June 10, 1999
Initials Initials FPR
------- -------
<PAGE>
CapRock
Communications
Addendum A.3
Mexico Terminating Rates for
NetVoice Technologies, Inc.
MEXICO
------
Band 1 $0.1500
Band 2 $0.1600
Band 3 $0.1700
Band 4 $0.1800
Band 5 $0.1800
Band 6 $0.1800
Band 7 $0.1800
Band 8 $0.1800
Mexico City (525) $0.1500
* International rates are subject to change with three
(3) days notice.
* Mexico calls are billed in full minute increments.
* FOB CapRock Dallas POP.
* 150,000 MOU per month per DS-1.
(Confidential and Proprietary)
Page 1 of 1
June 10, 1999
Initials Initials FPR
------- -------
<PAGE>
BROOKS
FIBER
PROPERTIES
DEDICATED SERVICES WORKSHEET
=========================================================================
Customer Name: NetVoice Technologies TSA No:_________________
City: Dallas Prepared by: Bill Bedri Date: 06-02-98
Service: DS-3:[ ] DS-1: [X] DS-0:[ ] Other:[ ]______________
Specify
Type: 1:[X] 2: [ ] 3:[ ]
LOA Required: Yes [ ] No [X]
B8ZS:[X] ESF:[X]
LOA Attached: Yes [ ] No [X]
AMI:[ ] SF:[ ]
Tpy II Apvl Attch? Yes [ ] NO [X]
<TABLE>
<CAPTION>
"A" LOCATION "Z" LOCATION
------------------------------------ ------------------------------------
<S> <C> <C>
Company Name Net Voice Technologies (Brooks Collo) CapRock Communications
Contact/Title Pody Connally Director Tech on Duty
Phone @ Loc: 972-788-2304 214-303-0115 214-720-7782
Address: 350 N. St. Paul 2323 Bryan St.
City/St/Zip: Dallas, TX 75210 Dallas, TX
Bldg/Flr/Room: 1650
Inside Wiring? YES[X] No[ ] YES[X] NO[ ]
Extended
Demarc? YES[ ] NO[X] YES[ ] NO[X]
Exact Dmarc Loc: ______________________________ _____________________________
Other Products and Services: Remarks:
</TABLE>
Sales Engineer: ______________________________ ________________
Signature Date
EXHIBIT 10.15
Duncan & Hill * a marketing communications company
LETTER OF AGREEMENT
-------------------
This letter acknowledges and confirms the appointment of DUNCAN & HILL
(D&H) the marketing/creative agency for NETVOICE TECHNOLOGIES CORPORATION
(NTC). The purpose of this agreement is to set forth D&H's method of
billing, charges and schedule of services that are incorporated herein and
become part of this agreement. Equally as important, and included in the
following, are the responsibilities of D&H to NTC and NTC to D&H.
This contract commences on November 1, 1999 and will remain in effect until
October 31, 2000. The terms of this contract will stay in effect beyond
this date unless the contract is terminated or renegotiated. Either party
can terminate the contract after this date by written notice. After receipt
of notice of termination, the rights, duties and responsibilities of each
party under this agreement will continue in full force for 90 days from
date of notification.
I. RESPONSIBILITIES
----------------
A. D&H to NTC
----------
As your creative/marketing agency, we will put forth our best efforts
to create meaningful and resultful marketing plans and communications.
We will make ourselves as familiar as possible with your business,
services, products and markets in order to submit to you marketing
ideas and creative approaches which we believe fit your needs. We
will use our creative and marketing expertise to produce artwork,
printed materials, audio-visual items and other promotional materials
at the most favorable rates to you. We will pay on a timely basis all
proper bills incurred for your account to outside suppliers. We will
make no commitments or disbursements or incur any obligations for your
account without your prior written authorization. All supplier
invoices will be submitted with final invoicing upon request.
B. NTC to D&H
----------
As the client, you will furnish the agency all reasonable information
available about your business, products or markets. D&H understands
and accepts that this information is confidential and as such will not
be disclosed to other advertisers and/or advertising agencies or any
suppliers to D&H except where necessary and in such cases NTC will
authorize the disclosure in writing. D&H agrees that this acceptance
of non-disclosure of confidential information shall survive the term
of the contract.
D&H will work directly with any individual designated by NTC, in
collecting information, submitting recommendations and obtaining
approval of copy, layout and finished art. The client will advise the
agency when there is dissatisfaction with any of its ideas, finished
work, prices and/or personnel at the time such dissatisfaction occurs.
3856 Oakton St. Skokie, IL 60076 847-676-4784 fax 847-676-4938
<PAGE>
II. SCHEDULE OF BILLING SERVICES AND CHARGES
----------------------------------------
D&H will be employed for a yearly contract of $120,000 to provide full
marketing services. A monthly fee will be due on the last day of the
preceding month as detailed below. NTC will issue D&H $20,000 of
restricted stock to be held at least one year, bringing the total
package to $120,000 for year one. If contract continues into second
year, the monthly fee will remain at $10,000/month.
YEAR 1 YEAR 2
------ ------
November $3,000 10,000
December 3,000 10,000
January 5,000 10,000
February 9,000 10,000
March 10,000 10,000
April 10,000 10,000
May 10,000 10,000
June 10,000 10,000
July 10,000 10,000
*August 10,000 10,000
*September 10,000 10,000
*October 10,000 10,000
------ ------
$100,000
Stock 20,000
TOTAL $120,000 $120,000
D&H fee will cover all D&H staff time for the following:
1. All marketing planning.
2. Development of NTC corporate and brand positioning including logo
development and all brainstorming sessions and analysis.
3. Concept development through final copy and layout for all media
forms including:
Print
Outdoor
Radio
Television
Trade Advertising
POS
Collateral Materials (brochure/program)
Packaging
<PAGE>
Letter of Agreement
Page 3 of 5
4. Time of principals and staff of D&H for:
a. Marketing Planning
b. Client Meetings
c. Coordination
d. Negotiations
e. Sales Meetings
f. Media Selection
g. Advertising Placements
- Consumer
- Trade
h. Trade Promotions
i. Consumer Promotions
5. Client Service - Designated principals, defined as Messrs. Duncan
and Patterson, will be the management contacts. Lee Hudson and
Debra Brennen will be assigned to serve as daily local contact
detailing and coordinating functions as needed.
6. Media - D&H will participate in the overall strategic media
planning and budgeting. D&H will take full responsibility for
placement, negotiation and accounting activities. All contracted
media will be estimated in advance at net and invoiced direct by
the media.
7. Art and Mechanical - Planning, coordinating and supervising.
8. Production - Coordinating of art & mechanical and films with
specified printer.
9. Traffic - All general planning, coordinating and supervision.
D&H is responsible for the full handling of all production
materials involving the external trafficking of discs, films,
engravings, electrotypes, etc. All expenses including packing
express, postage and other transportation charges will be billed
to NTC at the agency's pre-estimated net cost.
10. Research - Design, supervision, and analysis relative to studies
conducted by an outside research firm. All outside supplier
costs will be pre-estimated and billed net.
11. Client Copies of Creative Materials - NTC will receive two sets
of all produced creative including printed materials and
broadcast tapes, unless specified otherwise by NTC.
<PAGE>
Letter of Agreement
Page 4 of 5
C. Additional Fees
---------------
1. ART AND MECHANICAL
All costs including: finished art, keyline, illustration, type,
photography, film & processing, retouching, stats, comps, and
other related costs will be billed at a 10% commission. Where
partial cash advances are required by suppliers, NTC will be
billed in advance for the necessary prepayments. Otherwise, NTC
will be billed after the completion of the specific job. No work
will be initiated without a written estimate approved by NTC.
Estimates will correspond to budgeted guidelines.
2. PRODUCTION
Supervising and bidding. Because production is competitive and
quality can vary significantly, D&H requires three bids of
comparable sources for any given job. While NTC is welcome to
include specific suppliers in the bidding process, D&H reserves
the right to make the final selection relative to producing the
highest quality of work within the budgeted guidelines. If NTC so
chooses to make the final selection of a supplier that D&H is not
familiar, D&H cannot guarantee that the desired quality level or
budget requirements will be adhered to. All costs including:
supervision, directing, films, separations, printing, video and
audio production will be billed at a 10% commission to NTC. Media
will be billed net. Where partial cash advances are required by
suppliers, NTC will be billed in advance for the necessary
prepayments. Otherwise, NTC will be billed after the completion
of the specific job. No work will be initiated without a written
estimate approved by NTC. Estimates will correspond to budgeted
guidelines.
3. TRAVEL AND ENTERTAINMENT
All travel /entertainment and related expenses incurred
specifically for NTC relative to successfully accomplishing the
assignment will be billed at net costs except for those costs
directly related to meetings in your Dallas office by one of your
designated D&H account service team members which is included in
our monthly fee. Expenses must be within budgeted guidelines and
approved in advance.
<PAGE>
Letter of Agreement
Page 5 of 5
D. Terms of Payment
----------------
All fee/invoices are due the last working day prior to the
ensuing month. All other invoices require the standard terms of
payment, Net 30 days, unless specified differently.
All invoices not paid within terms shall accrue interest at the
rate of 1% per month (12% annually). If the account becomes past
due, D&H has the right to reduce services as deemed necessary
until the account is brought to current status. NTC agrees to
pay a service charge of $25 for each check returned unpaid. In
the event that this account is placed with an outside agency for
collection, NTC agrees to pay all reasonable collection costs,
attorney fees and court costs.
E. All finished artwork and creative is the sole property of NTC.
/s/ JAY M. DUNCAN Date: 11-15-99 /s/ JEFFREY ROTHELL Date: 11-20-99
- ------------------ --------- -------------------- ---------
JAY M. DUNCAN
President
Duncan & Hill NetVoice Technologies Corporation
EXHIBIT 10.16
CUSTOMER AUTHORIZATION FORM A
frontier
communications
ACCOUNT NO.____________________
- -------------------------------------------------------------------------
NEW [ ]ACCOUNT [ ]CORPORATE ACCOUNT EXISTING [X] ACCOUNT SERVICE ADD
[ ]BRANCH ACCOUNT
- ------------------------------------------------------------------------
SEND FRONTIER STATEMENT TO
- ------------------------------------------------------------------------
BILLING NAME
Netvoice Technologies
STREET ADDRESS FLOOR, SUITE, APT BLDG, ETC, IF APPLICABLE
13747 MontFort Dr. #250
CITY STATE ZIP
Dallas TX 75240
PRIMARY CONTACT PERSON PRIMARY CONTACT PHONE PRIMARY CONTACT FAX
Stephen Kenney 972-788-2988 972-788-2995
ALTERNATE CONTACT PERSON ALTERNATE CONTACT PHONE ALTERNATE CONTACT FAX
E-MAIL ADDRESS WEB SITE NAME
[email protected]
- -------------------------------------------------------------------------
SERVICE LOCATION - IF DIFFERENT THAN ABOVE
- -------------------------------------------------------------------------
LOCATION NAME
Houston to San Antonio Point to Point
STREET ADDRESS FLOOR, SUITE, APT BLDG, ETC. IF APPLICABLE
Service location on #6
CITY STATE ZIP
CONTACT PERSON CONTACT PHONE
- -------------------------------------------------------------------------
CREDIT INFORMATION - IF APPLICABLE
- -------------------------------------------------------------------------
COMPANY TAX ID# TYPE OF BUSINESS [ ]PARTNERSHIP [ ]CORPORATION
[ ]SUBCHAPTER [ ]JOINT VENTURE
[ ]SOLE PROPRIETORSHIP*
*SOCIAL SECURITY NUMBER NEEDED
NAME OF PRINCIPAL (FIRST, MIDDLE, LAST NAME) SOCIAL SECURITY NUMBER
CURRENT LONG DISTANCE CARRIER HAS THE APPLICANT EVER
HAD A FRONTIER ACCOUNT? [ ]YES
[ ]NO
TOTAL NUMBER OF LONG DISTANCE ESTIMATED TOTAL
LINES FOR THIS ACCOUNT MONTHLY USAGE $0
[ ]ATTACH LONG DISTANCE CARRIER BILLING STATEMENT
[ ]ATTACH FINANCIAL STATEMENT
- -------------------------------------------------------------------------
BILLING OPTIONS (FOR EACH ACCOUNT)
- -------------------------------------------------------------------------
CORPORATE BILLING [ ]YES [ ]NO INITIAL NUMBER OF BRANCH ACCOUNTS______
[X] CORPORATE PAY [ ]BRANCH PAY [ ]INVOICE TO CORPORATE
DISCOUNT OPTIONS [ ]DISCOUNT TO CORPORATE OR [X]SHARED DISCOUNTS
TOTAL ESTIMATED USAGE CORPORATE ACCOUNT #
OF COMBINED ACCOUNTS_________ 0203798442
Regardless of the Billing Option selected above, the undersigned agrees
that it is fully responsible for and guarantees payment of all minimum
usage and all other charges billed to the Corporation Account and all
branch accounts added to the Corporate Account.
CUSTOMER'S INITIALS /s/ SK
DIRECT CREDIT CARD BILLING
CREDIT CARD HOLDERS NAME [ ]VISA [ ]MC [ ]DISC [ ]AMEX
CREDIT CARD NUMBER EXP. DATE
INVOICE FORMAT: [ ]STANDARD [ ]SUMMARY OPTION ONLY
- -------------------------------------------------------------------------
FOR OFFICE USE ONLY
- -------------------------------------------------------------------------
CYCLE CUSTOMER ACCOUNT NUMBER SALES SOURCE LEAD [ ]YES [ ]NO
21 0203798442
ASSOCIATION PACKAGE PRODUCT OPTION MKT SOURCE CODE
- -------------------------------------------------------------------------
FRONTIER REPRESENTATIVES
- -------------------------------------------------------------------------
SALES OFFICE PHONE NUMBER SALES OFFICE FAX NUMBER SALES DATE
972-387-9067 972-387-5637
CONTRACT ID RF0402
SALES REP NAME (PLEASE PRINT) SALES ID IF NAME (PLEASE PRINT) SALES ID
Chris Byran DS005
CLIENT SERVICE REP NAME (PLEASE PRINT) SALES ID DATA REP NAME SALES ID
SE NAME (PLEASE PRINT) SALES ID
- -------------------------------------------------------------------------
CUSTOMER AUTHORIZATION
- -------------------------------------------------------------------------
Customer appoints [ ] Frontier Communications Services Inc.
("Frontier") as its primary long distance
carrier ([ ]including intraLATA service where
available) and/or
[ ] Frontier Local Service Provider as its local
service provider; and to access its agent in all
matters relating to the provision of such
services as selected by Customer.
Customer understands and agrees it may be subject to charges from its
local telephone company to switch long distance carriers and it may have
only one primary long distance carrier for each of its telephone numbers
that it adds to its Frontier accounts.
IF NO BOXES ABOVE ARE CHECKED, CUSTOMER IS NOT SELECTING FRONTIER AS ITS
LOCAL OR LONG DISTANCE CARRIER AT THIS TIME, BUT IS ORDERING OTHER
FRONTIER SERVICES.
Customer agrees to the monthly usage and term commitments it may have
selected elsewhere on this form and any other Frontier form(s). Customer
understands that it may be liable for a cancellation fee if it does not
fulfill its term commitment. Customer agrees that all Services it
receives from Frontier or a Frontier affiliate (collectively, the
"Service") are subject to Frontier's then current price lists and
tariffed rates and the terms and conditions of Service set out in any
applicable Frontier/Frontier affiliate tariffs, as all of the same may be
revised from time to time (collectively the "Tariff"). Customer
acknowledges it has read this entire form and has received a copy of all
applicable rates and charges for the Services it selected. If there is a
conflict between the terms of this or an other applicable Frontier forms
and the Tariff, the Tariff controls with respect to a regulated Service
(such as local or long distance) and the form controls with respect to a
non-regulated Service (such as dedicated Internet). This authorization
and order is voidable by Frontier if altered in any manner.
Service availability is subject to Customer meeting Frontier's credit
criteria. Customer warrants that any credit/financial information
submitted to Frontier is accurate. Customer authorizes Frontier (and its
agents) to perform credit checks and investigate Customer's bank and
other credit references, where permitted by law. If Customer elects
credit card billing. Customer authorizes Frontier to bill all Service
charges to the credit card number submitted by Customer.
STEPHEN KENNEY Director Traffic Engineering
- -----------------------------------
NAME/TITLE - PLEASE PRINT
/s/ STEPHEN KENNEY 10-1-99
- ----------------------------------- -------------------
AUTHORIZED SIGNATURE DATE
- -------------------------------------------------------------------------
White - Office Copy Yellow - Sales Representative Copy
Pink - Customer Copy
<PAGE>
CUSTOMER AUTHORIZATION FORM B
frontier
communications
ACCOUNT NO. 0203798442
- -------------------------------------------------------------------------
PRODUCT [ ]SIGNATURE [ ]PLAN II [ ]PRIORITY [ ]EZ PLAN [ ]OTHER
PLAN PLAN
TERM CUSTOMER [ ]MTM [ ]24 Month [ ]12 Month [ ]MTM Term
LENGTH INITIALS [ ]12 MO [ ]36 Month [X]24 Month [ ]15 Month Length
[ ]30 Month ______Mo
- -------------------------------------------------------------------------
MONTHLY CUSTOMER [ ]$10MTM [ ]$10,000 [ ]$2,500 [ ]$10MTM MUG
USAGE INITIALS [ ]$1,500 [ ]$15,000 [ ]$5,000 [ ]$100
GUARANTEE [ ]$3,000 [ ]$25,000 [X]$10,000 [ ]$500
[ ]$5,000 [ ]$35,000 [ ]$25,000 [ ]$1,000
[ ]$7,500 [ ]$50,000 [ ]$1,500
- -------------------------------------------------------------------------
INTERNATIONAL PRICING PLAN [ ]BASIC [ ]TARGET PLUS
[ ]POWER PLAN [ ]POWER BOOSTER
- -------------------------------------------------------------------------
PRODUCT & SERVICES LOCATION LOCATION LOCATION LOCATION
_____ _____ _____ _____
- -------------------------------------------------------------------------
[X] PRODUCTS NRC MRC NRC MRC NRC MRC NRC MRC
ORDERED
- -------------------------------------------------------------------------
SWITCHED LOCAL OUTBOUND & INBOUND
Local Business Lines
Local Directory
Assistance
Local Analog PBX
Trunks
Switched Outbound
Accounting Codes
Voice VPN
Switched Inbound
Time-Of-Day Index
Percent Call
Allocation
Point of Origination
Routing/Blocking
MultiPoint
GlobalPoint
Simple Connect
Multiple Carrier/
SMS Routing
Other___________
___________
___________
___________
- -------------------------------------------------------------------------
DEDICATED LOCAL OUTBOUND & INBOUND
Dedicated Outbound
SS7
ISDN - PRI
Accounting Codes
Dedicated Inbound
ANI/DNIS
Time-Of-Day Index
Percent Call
Allocation
Point of Origination
Routing/Blocking
Frame Relay
ATM
Dedicated Internet
Private Line Service X
Local Digital Service
Voice VPN
Multiple Carrier/
SMS Routing
Other___________
___________
___________
___________
- -------------------------------------------------------------------------
TOTAL NRC/MRC $ $ $ $
PER COLUMN -----------------------------------------------------
Sub Total NRC This Page$___ $___Sub Total MRC This Page
Page _____ of ____
- -------------------------------------------------------------------------
<PAGE>
CUSTOMER AUTHORIZATION FORM A
frontier
communications
ACCOUNT NO.____________________
- -------------------------------------------------------------------------
NEW [ ]ACCOUNT [ ]CORPORATE ACCOUNT EXISTING [ ] ACCOUNT SERVICE ADD
[ ]BRANCH ACCOUNT
- ------------------------------------------------------------------------
SEND FRONTIER STATEMENT TO
- ------------------------------------------------------------------------
BILLING NAME
STREET ADDRESS FLOOR, SUITE, APT BLDG, ETC, IF APPLICABLE
CITY STATE ZIP
PRIMARY CONTACT PERSON PRIMARY CONTACT PHONE PRIMARY CONTACT FAX
ALTERNATE CONTACT PERSON ALTERNATE CONTACT PHONE ALTERNATE CONTACT FAX
E-MAIL ADDRESS WEB SITE NAME
- -------------------------------------------------------------------------
SERVICE LOCATION - IF DIFFERENT THAN ABOVE
- -------------------------------------------------------------------------
LOCATION NAME
STREET ADDRESS FLOOR, SUITE, APT BLDG, ETC. IF APPLICABLE
CITY STATE ZIP
CONTACT PERSON CONTACT PHONE
- -------------------------------------------------------------------------
CREDIT INFORMATION - IF APPLICABLE
- -------------------------------------------------------------------------
COMPANY TAX ID# TYPE OF BUSINESS [ ]PARTNERSHIP [ ]CORPORATION
[ ]SUBCHAPTER [ ]JOINT VENTURE
[ ]SOLE PROPRIETORSHIP*
*SOCIAL SECURITY NUMBER NEEDED
NAME OF PRINCIPAL (FIRST, MIDDLE, LAST NAME) SOCIAL SECURITY NUMBER
CURRENT LONG DISTANCE CARRIER HAS THE APPLICANT EVER
HAD A FRONTIER ACCOUNT? [ ]YES
[ ]NO
TOTAL NUMBER OF LONG DISTANCE ESTIMATED TOTAL
LINES FOR THIS ACCOUNT MONTHLY USAGE $0
[ ]ATTACH LONG DISTANCE CARRIER BILLING STATEMENT
[ ]ATTACH FINANCIAL STATEMENT
- -------------------------------------------------------------------------
BILLING OPTIONS (FOR EACH ACCOUNT)
- -------------------------------------------------------------------------
CORPORATE BILLING [ ]YES [ ]NO INITIAL NUMBER OF BRANCH ACCOUNTS______
[ ] CORPORATE PAY [ ]BRANCH PAY [ ]INVOICE TO CORPORATE
DISCOUNT OPTIONS [ ]DISCOUNT TO CORPORATE OR [ ]SHARED DISCOUNTS
TOTAL ESTIMATED USAGE CORPORATE ACCOUNT #
OF COMBINED ACCOUNTS_________
Regardless of the Billing Option selected above, the undersigned agrees
that it is fully responsible for and guarantees payment of all minimum
usage and all other charges billed to the Corporation Account and all
branch accounts added to the Corporate Account.
CUSTOMER'S INITIALS
DIRECT CREDIT CARD BILLING
CREDIT CARD HOLDERS NAME [ ]VISA [ ]MC [ ]DISC [ ]AMEX
CREDIT CARD NUMBER EXP. DATE
INVOICE FORMAT: [ ]STANDARD [ ]SUMMARY OPTION ONLY
- -------------------------------------------------------------------------
FOR OFFICE USE ONLY
- -------------------------------------------------------------------------
CYCLE CUSTOMER ACCOUNT NUMBER SALES SOURCE LEAD [ ]YES [ ]NO
ASSOCIATION PACKAGE PRODUCT OPTION MKT SOURCE CODE
- -------------------------------------------------------------------------
FRONTIER REPRESENTATIVES
- -------------------------------------------------------------------------
SALES OFFICE PHONE NUMBER SALES OFFICE FAX NUMBER SALES DATE
CONTRACT ID
SALES REP NAME (PLEASE PRINT) SALES ID IF NAME (PLEASE PRINT) SALES ID
CLIENT SERVICE REP NAME (PLEASE PRINT) SALES ID DATA REP NAME SALES ID
SE NAME (PLEASE PRINT) SALES ID
- -------------------------------------------------------------------------
CUSTOMER AUTHORIZATION
- -------------------------------------------------------------------------
Customer appoints [ ] Frontier Communications Services Inc.
("Frontier") as its primary long distance
carrier ([ ]including intraLATA service where
available) and/or
[ ] Frontier Local Service Provider as its local
service provider; and to access its agent in all
matters relating to the provision of such
services as selected by Customer.
Customer understands and agrees it may be subject to charges from its
local telephone company to switch long distance carriers and it may have
only one primary long distance carrier for each of its telephone numbers
that it adds to its Frontier accounts.
IF NO BOXES ABOVE ARE CHECKED, CUSTOMER IS NOT SELECTING FRONTIER AS ITS
LOCAL OR LONG DISTANCE CARRIER AT THIS TIME, BUT IS ORDERING OTHER
FRONTIER SERVICES.
Customer agrees to the monthly usage and term commitments it may have
selected elsewhere on this form and any other Frontier form(s). Customer
understands that it may be liable for a cancellation fee if it does not
fulfill its term commitment. Customer agrees that all Services it
receives from Frontier or a Frontier affiliate (collectively, the
"Service") are subject to Frontier's then current price lists and
tariffed rates and the terms and conditions of Service set out in any
applicable Frontier/Frontier affiliate tariffs, as all of the same may be
revised from time to time (collectively the "Tariff"). Customer
acknowledges it has read this entire form and has received a copy of all
applicable rates and charges for the Services it selected. If there is a
conflict between the terms of this or an other applicable Frontier forms
and the Tariff, the Tariff controls with respect to a regulated Service
(such as local or long distance) and the form controls with respect to a
non-regulated Service (such as dedicated Internet). This authorization
and order is voidable by Frontier if altered in any manner.
Service availability is subject to Customer meeting Frontier's credit
criteria. Customer warrants that any credit/financial information
submitted to Frontier is accurate. Customer authorizes Frontier (and its
agents) to perform credit checks and investigate Customer's bank and
other credit references, where permitted by law. If Customer elects
credit card billing. Customer authorizes Frontier to bill all Service
charges to the credit card number submitted by Customer.
DENVER BRIERS PURCHASING MGR
- -----------------------------------
NAME/TITLE - PLEASE PRINT
/s/ DENVER BRIERS 7-20-99
- ----------------------------------- -------------------
AUTHORIZED SIGNATURE DATE
- -------------------------------------------------------------------------
White - Office Copy Yellow - Sales Representative Copy
Pink - Customer Copy
<PAGE>
CUSTOMER AUTHORIZATION FORM B
frontier
communications
ACCOUNT NO.______________
- -------------------------------------------------------------------------
PRODUCT [ ]SIGNATURE [ ]PLAN II [ ]PRIORITY [ ]EZ PLAN [ ]OTHER
PLAN PLAN
TERM CUSTOMER [ ]MTM [X]24 Month [ ]12 Month [ ]MTM Term
LENGTH INITIALS [ ]12 MO [ ]36 Month [ ]24 Month [ ]15 Month Length
[ ]30 Month ______Mo
- -------------------------------------------------------------------------
MONTHLY CUSTOMER [ ]$10MTM [ ]$10,000 [ ]$2,500 [ ]$10MTM MUG
USAGE INITIALS [ ]$1,500 [ ]$15,000 [ ]$5,000 [ ]$100 $10,000
GUARANTEE [ ]$3,000 [ ]$25,000 [ ]$10,000 [ ]$500
[ ]$5,000 [ ]$35,000 [ ]$25,000 [ ]$1,000
[ ]$7,500 [ ]$50,000 [ ]$1,500
- -------------------------------------------------------------------------
INTERNATIONAL PRICING PLAN [ ]BASIC [ ]TARGET PLUS
[ ]POWER PLAN [ ]POWER BOOSTER
- -------------------------------------------------------------------------
PRODUCT & SERVICES LOCATION LOCATION LOCATION LOCATION
_____ _____ _____ _____
- -------------------------------------------------------------------------
[X] PRODUCTS NRC MRC NRC MRC NRC MRC NRC MRC
ORDERED
- -------------------------------------------------------------------------
SWITCHED LOCAL OUTBOUND & INBOUND
Local Business Lines
Local Directory
Assistance
Local Analog PBX
Trunks
Switched Outbound
Accounting Codes
Voice VPN
Switched Inbound
Time-Of-Day Index
Percent Call
Allocation
Point of Origination
Routing/Blocking
MultiPoint
GlobalPoint
Simple Connect
Multiple Carrier/
SMS Routing
Other___________
___________
___________
___________
- -------------------------------------------------------------------------
DEDICATED LOCAL OUTBOUND & INBOUND
Dedicated Outbound
SS7
ISDN - PRI
Accounting Codes
Dedicated Inbound
ANI/DNIS
Time-Of-Day Index
Percent Call
Allocation
Point of Origination
Routing/Blocking
Frame Relay
ATM
Dedicated Internet
Private Line Service
Local Digital Service
Voice VPN
Multiple Carrier/
SMS Routing
Other___________
___________
___________
___________
- -------------------------------------------------------------------------
TOTAL NRC/MRC $ $ $ $
PER COLUMN -----------------------------------------------------
Sub Total NRC This Page$___ $___Sub Total MRC This Page
Page _____ of ____
- -------------------------------------------------------------------------
<PAGE>
CUSTOMER AUTHORIZATION FORM C
frontier
communications
ACCOUNT NO.________________
- -------------------------------------------------------------------------
PRODUCT & SERVICES LOCATION LOCATION LOCATION LOCATION
_____ _____ _____ _____
- -------------------------------------------------------------------------
[X] PRODUCTS NRC MRC NRC MRC NRC MRC NRC MRC
ORDERED
- -------------------------------------------------------------------------
Calling Cards
Toll-Free Voice Mail
Teleconferencing
Dial-Up Internet
Broadcast Fax
Paging Service
Executive Summary
Profile(SM)
Express View(SM)
Custom ESP
Alternate Call
Detail Delivery
uCommand(SM)
PrioritySite(SM)
Priority Connect(SM)
Other___________
___________
___________
___________
- -------------------------------------------------------------------------
Managed Services
Customer Premise
Equipment
Other___________
___________
___________
___________
- -------------------------------------------------------------------------
Target Plus/Optional
- -------------------------------------------------------------------------
TOTAL NRC/MRC $ $ $ $
PER COLUMN -----------------------------------------------------
Sub Total NRC This Page$___ $___Sub Total MRC This Page
Sub Total NRC Part B $___ $___Sub Total MRC Part B
Sub Total NRC Add'l Page(s)$___ $___Sub Total MRC Add'lPage
Total NRC$___ $___Total MRC
- -------------------------------------------------------------------------
Page ____ of ____
EXHIBIT 10.17
ELECTRIC MASTER SERVICES AGREEMENT
LIGHTWAVE
Customer: NetVoice Technologies, Inc.
Sales Order #: DLLS0031
Sales Order Date: 05/28/1999
Desired Due Date: 06/18/1999
This MASTER SERVICES AGREEMENT is entered into this day, May 25, 1999, by
and between Electric Lightwave, Inc., a Delaware corporation, 4400 NE 77th
Avenue, Vancouver, Washington 95662 ("ELI") and NetVoice Technologies, Inc.
("Customer"):
1. SERVICES. ELI agrees to provide to Customer and Customer agrees to
procure from ELI certain communication services to be described in Sales
Order(s) issued and agreed upon by the parties. Once agreed upon and
accepted by the parties, such Sales Order(s) will become a part of this
Agreement and be binding upon the parties hereto. Each Sales Order will
describe the communication services to be provided ("Services"), the agreed
to term ("Contract Term"), the recurring (monthly) and/or non-recurring
(provisioning or other) charges, and such information as may be necessary.
2. INSTALLATION DATE. The Installation Date will be the date confirmed
in writing by ELI. If facilities are not available on Customer's Desired
Due Date, the Installation Date will be the date that ELI can provide end
to end connectivity on ELI's facilities. Customer will accept Services on
the Installation Date.
3. TERM. Customer agrees to purchase the Services for the Contract Term
as set forth on the attached Sales Order(s). Subject to the earlier
termination provisions set forth herein, at the end of the Contract Term,
this Agreement will automatically continue on a month-to-month basis until
terminated by either party upon 30 days written notice.
4. RATES AND CHARGES. Rates and charges will be set forth on the Sales
Order(s) and will commence on the Installation Date. Any monthly recurring
charges ("MRC") will be billed in advance each month in accordance with the
Sales Order(s). Any nonrecurring charges ("NRC") will be billed on the
first invoice after the Installation Date, or if the NRC are incurred after
the Installation Date, such charges will be billed on the next invoice
thereafter. ELI may adjust the rates and charges for the renewal terms
upon written notice provided at least 90 days prior to the end of the
Contract Term or any renewal hereof. Payments are due on or before the
30th day of month. ELI may assess a late fee of 1 1/2% per month (not to
exceed the maximum rate allowed under state law) on all balances not paid
when due. Customer will pay any and all costs incurred in collection of
rates and charges due and payable, including reasonable attorney's fees,
whether or not a suit is instituted. ELI has the option to suspend
services until payment is made. Termination of Services may follow.
All payments hereunder will be in U.S. dollars.
5. DEPOSITS. Without waiving any right of termination or any other rights
hereunder, ELI may require Customer to tender a deposit, of up to two (2)
months of revenue, to guarantee payment hereunder if (1) Customer fails to
make a payment when due, (2) Customer files for bankruptcy, or (3)
additional service orders exceed established credit limits initially
approved by ELI. Upon request, Customer will provide ELI with information
regarding payment history for communications services, number of years in
business, financial statement analysis and commercial credit bureau rating.
Acceptance of any Sales Order issued hereunder is subject to final approval
by ELI's Credit Department.
6. TAXES. Customer is responsible for payment of any and all federal,
state and local taxes, charges or surcharges imposed on or based upon the
provision, sale or use of ELI's services (excluding taxes based upon ELI's
income). ELI will collect all such taxes, charges, and surcharges unless
Customer provides ELI with proof of exemption. Customer will indemnify ELI
for any and all costs, claims, taxes, charges, and surcharges levied
against ELI relative to such exempt status.
7. TARIFF APPLICATION. Customer acknowledges that the Services may be
subject, in whole or in part, to one or more provisions of state or federal
tariffs filed by ELI. In the event of any conflict between any provision
of this Agreement and any provision of such tariff, the provision of such
tariff will control. This Agreement and the Services will be subject to
such modifications as may be required or authorized by any regulatory
agency in the exercise of its lawful jurisdiction.
8. COMPLIANCE WITH LAW. This Agreement is subject to all applicable
federal, state and local laws, and regulations, rulings, orders, and other
actions of governmental agencies ("Rules"), including, but not limited to:
the Communications Act of 1934 as amended by the Telecommunications Act of
1995, the rules and regulations of the Federal Communications Commission
("FCC"), and the obtaining and continuance of any required approvals,
authorizations, or tariffs filed with the FCC or any other governmental
agency. ELI will use its good faith reasonable efforts to obtain, retain,
and maintain such approvals and authorizations. If any such Rule adversely
affects the Services or requires ELI to provide Services other than in
accordance with the terms of this Agreement, either party may, without
liability to the other party, terminate the affected Services upon 30 days
prior written notice to the other party. In performing their obligations
under this Agreement, the parties will comply with all applicable federal,
state and local laws, regulations, rules and orders. When Customer uses
the Services to carry a mixture of intrastate and interstate
communications, Customer warrants that the interstate communications will
constitute at least 10% of the total communications carried over the
Services. Upon request, Customer will make its records available to EL"I
for inspection and verification.
9. COMPATIBILITY. Unless otherwise provided, Customer will provide
equipment compatible with the Services and ELI's network and facilities.
Customer will bear the cost of any additional protective apparatus
reasonably required to be installed because of the use of ELI's network or
facilities by Customer, Customer's lessees or assignees.
10. NON-INTERFERENCE. Customer's use of the Services provided herein and
any equipment associated therewith will not: (a) interfere with or impair
service over ELI's network or facilities; (b) impair privacy of any
communications over such network or facilities; (c) cause damage of any
nature to ELI's assets; (d) be used to frighten, abuse, torment or harass
another; or (e) create hazards to ELI's officers, directors, employees,
subcontractors, agents or users of the aforementioned network or
facilities.
11. MAINTENANCE AND UPGRADE OF FACILITIES. ELI will maintain its
facilities and equipment used to provide the Services at no additional
charge to customer, except where work or service calls result from failure
or malfunction in, or improper operation of, Customer's facilities and/or
equipment. In such event, Customer will reimburse ELI for the cost of the
required maintenance at ELI's standard time and material rate plus any
federal, state and/or local taxes imposed upon ELI related to such
maintenance.
ELI reserves the right to suspend service for scheduled maintenance or
planned enhancements or upgrades to ELI's network without notice to
Customer.
12. ACCESS TO PREMISES. Customer will grant ELI or cooperate with ELI in
obtaining access to its premises for the installation, operation, removal,
repair and maintenance of the facilities and equipment for the Services
hereunder.
13. LIMITED WARRANTY. ELI will use reasonable efforts, according to
industry standards to provide Services on a 24-hour-a-day, 7-day-per-week
basis. ELI does not warrant that Services will be provided without
interruptions. In case of a Services interruption of more than 24 hours
caused by ELI. ELI will credit Customer with ELI's service charge for the
period during which the Services were interrupted. Such credit will not be
given for Services interruption caused by Customer or by activities or
facilities furnished by Customer or third parties.
ELI MAKES THIS WARRANT IN LIEU OF ALL OTHER WARRANTIES AND MAKES NO OTHER
WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
<PAGE>
14. LIMITED LIABILITY. ELI's liability and the exclusive remedy of
Customer for damages associated with the installation, provision,
termination, maintenance, repair or restoration of Services, will be solely
limited to an amount no greater than the amounts payable from Customer to
ELI during the Contract Term.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR LOSS OF USE,
INCOME OR PROFITS, OR ANY OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL
LOSSES.
The provisions of this Paragraph 14 will survive the termination of this
Agreement and any Sales Order(s) issued hereunder.
15. INDEMNIFICATION. ELI and Customer will indemnify, hold harmless, and
defend the other, its officers, directors, affiliated companies, employees,
agents and subcontractors from liabilities, claims or damages arising out
of personal injury or death or damage to property to the extent caused by
the indemnifying party's breach of any representation, warranty, term or
provision herein or to the extent caused by the acts or omissions of such
party, its employees, agents or subcontractors in its performance
hereunder.
The provisions of this Paragraph 15 will survive the termination of this
Agreement and any Sales Order(s) issued hereunder.
16. CONFIDENTIALITY. In the course of performance hereunder, the parties
may have access to certain information, the ownership and confidential
status of which is highly important to the other party, including, but not
limited to: information about products, services, business plans, trade
secrets, discoveries, ideas, designs, drawings, specifications, techniques,
models, data, programs, documentation, processes, know-how, customer lists,
marketing plans, and financial and technical information and other
information treated or designated by one of the parties as confidential
(herein referred to as "Confidential Information").
Neither party will disclose the other party's Confidential Information,
directly, or indirectly under any circumstances or by any means, to any
third person without the express written consent of the other party, and
neither party will copy, transmit, reproduce, summarize, quote, or make
commercial or other use whatsoever of the other party's Confidential
Information, except as may be necessary to perform its duties hereunder,
Each party will exercise the highest degree of care in safeguarding the
other party's Confidential Information against loss, theft or other
inadvertent disclosure and take all steps necessary to maintain such
confidentiality.
The provisions of the this Paragraph 16 will survive the termination of
this Agreement and any Sales Order(s) issued hereunder.
17. TERMINATION. Either party may terminate this Agreement or any Sales
Order(s) issued hereunder upon 30 days written notice to the defaulting
party, if the defaulting party: (a) breaches any term or provision herein
and fails to cure such breach within the said 30 days; or (b) makes an
assignment for the benefit of creditors; or (c) has any proceedings filed
against it under any law relating to creditor's rights in general.
ELI may terminate the Services if Customer fails to pay any invoice within
30 days of the date of the invoice.
Upon early termination for any reason, other than breach by ELI, Customer
will immediately reimburse ELI the costs of any special construction
incurred by ELI to provide Services hereunder. In addition, all rates and
charges set forth herein for the entire Contract Term will become
immediately due and payable by Customer to ELI.
18. FORCE MAJEURE. In the event that either party's performance is
delayed, prevented, obstructed, or inhibited because of any Act of God,
fire, casualty, delay or disruption in transportation, flood, war, strike,
lockout, epidemic, destruction or shut-down of facilities, shortage or
curtailment, riot, insurrection, governmental acts or directives, any full
or partial failure of any communications or computer network or any cause
beyond such party's reasonable control, the party's performance will be
excused and the time for the performance will be extended for the period of
delay or inability to perform resulting from such occurrence. The
occurrence of such an event will not constitute grounds for a declaration
of default by either party.
19. NOTICES. All notices required by or relating to the Services herein
will be in writing and will be sent to Customer at the address shown above
and to ELI at 4400 NE 77th Avenue, Vancouver, Washington 98662, Attn:
Customer Service, with a copy to the Legal Department at the same address.
All such notices will be deemed given if mailed, postage pre-paid,
registered or certified mail, return receipt requested.
20. ASSIGNMENT. Customer may not assign its obligations hereunder without
the prior written consent of ELI, such consent will not be unreasonably
withheld.
21. WAIVER. The failure of either party to insist upon the performance of
any provision herein or to exercise any right or privilege granted to it
hereunder, will not be construed as a waiver of such provision or any
provisions herein, and the same will continue in full force. The various
rights and remedies given to or reserved by either party herein or allowed
by law, are cumulative, and no delay or omission to exercise any of its
rights will be construed as a waiver of any default or acquiescence, nor
will any waiver of any breach or any provision be considered a condonement
of any continuing or subsequent beach of the same provision.
22. AMENDMENTS, MODIFICATIONS AND SUPPLEMENTS. Any amendment,
modification, supplement or change hereto must be in writing and signed by
the parties hereto.
23. GOVERNING LAW. This Agreement and the Services hereunder will be
governed by and interpreted in accordance with the laws for the State where
the Services are to be provided.
24. ENTIRE AGREEMENT. This Agreement, together with the attached Sales
Order(s) and any addendum(s) and exhibit(s), set forth the entire agreement
of the parties with respect to the subject matter hereof, and supersedes
any prior agreement or understanding. If any provision hereof is held to
be invalid, void, or unenforceable, the remainder of the provisions will
nevertheless remain unimpaired and in effect.
Electric Lightwave, Inc.
A Delaware Corporation
BY:
------------------------------
TITLE:
------------------------------
DATE: 05/28/1999
------------------------------
NetVoice Technologies, Inc.
Customer
BY:
------------------------------
TITLE:
------------------------------
DATE: 05/28/1999
------------------------------
<PAGE>
Mailing Address:
Electric Lightwave, Inc.
4400 N.E. 77th Avenue
Vancouver, Washington 98662
(360) 816-3000 Fax: (360) 816-8934
ELECTRIC
- -------------------------------------------------------------------------
LIGHTWAVE
Net Voice Technologies, Inc.
13747 Montfort Drive, #250
Dallas, Texas 75240
June 16, 1999
Account Number:
DEPOSIT RECEIPT
DATE RECEIVED SERVICE TYPE DESCRIPTION AMOUNT
06-16-99 Collocation ONE MONTHS MRC $6,915.00
Deposits are held in an escrow account and accrue interest for one year.
The deposit and interest will be credited to your account as long as
satisfactory payment history has been established.
Credit and Collections Department Mailing Address
1 800-261-0664 Post Office Box 3862
Fax: (360) 896-3309 Vancouver, Washington 98662
Deposit Receipt Completed By: PEGGY BARLOW
<PAGE>
ELECTRIC
LIGHTWAVE OASIS SALES ORDER
Order Summary
Customer:
NetVoice Technologies, Inc. Sales Order #: DLLS0031
13747 Montfort Dr., Ste. 101 PO#: 0
Dallas, TX, 75240 Customer Account #: 0
972-788-2988 Sales Order Date: 05/28/1999
Desired Due Date: 06/08/1999
[ ] Local Number Portability (LPN)
Item Product Ordered Installation Monthly Term (yrs)
- --------------------------------------------------------------------------
1 Collocate $800.00 $600.00 36 months (3)
2 Dialtone Lines OR $35.00 $25.00 36 months (3)
3 Internet $800.00 $1,040.00 36 months (3)
4 ISDN PRI $0.00 $5,250.00 36 months (3)
- -------------------------------------------------------------------------
Totals $1,635.00 $6,915.00
Notes:
I have read, understand, and agree to the terms of this Service Order's
"Master Services Agreement". I understand that changes I request to this
order must be in writing and may result in a new turn-up date and an
additional charge to the order. I acknowledge that the pricing quoted in
the attached pricing sheets is proposed and does not become firm unless I
sign and date this Service Order within 90 days from the date submitted by
ELI, after which prices are subject to change. I acknowledge that ELI
Service Order processing does not start until ELI receives my completed and
signed order.
/s/ WILLIAM BEDRI 8/28/99
- ------------------------------- --------------
Authorized Customer's Signature Date
William Bedri President
- ------------------------------- --------------
Print Customer Name Title
<PAGE>
ELECTRIC
LIGHTWAVE OASIS SALES ORDER
Service Order Sheet
Sales Order #DLLS0031 Date Created: 05/28/1999
Customer: NetVoice Technologies, Inc. Desired Due Date: 06/18/1999
- --------------------------------------------------------------------------
Contract Term
Product Quantity/Options Months (yrs.)
- --------------------------------------------------------------------------
Advantage LD [ ]Ded 1+ [ ]Sw 1+ [ ]Travel Cards
[ ]Ded TF [ ]Sw TF
- --------------------------------------------------------------------------
All Calls [ ]Sw 1+ [ ]Sw TF [ ]Travel Cards
- --------------------------------------------------------------------------
ATM [ ]Locations
- --------------------------------------------------------------------------
Centrex, Joint Use [ ]Lines
- --------------------------------------------------------------------------
Collocation Obtain add'l agreements from
(Private Line Product) legal dept. [X] 36 months (3)
- --------------------------------------------------------------------------
Conference Calling [ ]
- --------------------------------------------------------------------------
Dialtone LTS add. Required
Oregon State [ ]Hybrid [1]Lines [ ]Vmsg 36 months (3)
[ ]Trunks [ ]VPX [ ]Vmenu
- --------------------------------------------------------------------------
Equipment [ ]
- --------------------------------------------------------------------------
Foreign Exchange [ ]Trunks
- --------------------------------------------------------------------------
Frame Relay [ ]Locations
- --------------------------------------------------------------------------
Internet [1]Connections 36 months (3)
- --------------------------------------------------------------------------
ISDN PRI D-Channel:[ ] [6]Data Only [ ]V&D only 36 months (3)
[ ]Dialable WB
- --------------------------------------------------------------------------
Private Line Capacity Svc Type Inter/Intra
Long Haul [ ] [ ] [ ]
MAN Service [ ] [ ] [ ]
Optical Svcs [ ]Ded Ring [ ]Pt to Pt [ ]Pt to Multi
Virtual Access
[ ]Wholesale
- --------------------------------------------------------------------------
Resale Pac Bell [ ]Lines [ ]Trunks [ ]Super Trks [ ]ISDN
- -------------------------------------------------------------------------
Resale Sprint [ ]Lines [ ]Trunks [ ]ISDN PRI
- --------------------------------------------------------------------------
Resale US West [ ]Lines [ ]Trunks [ ]ISDN
- --------------------------------------------------------------------------
Residential [ ]Dialtone [ ]Dialtone w/1+ [ ]1+ only
- --------------------------------------------------------------------------
RSVP [ ]Analog [ ]Digital
- --------------------------------------------------------------------------
Transparent LAN (TLS) [ ]
- --------------------------------------------------------------------------
Video Conferencing [ ]
- --------------------------------------------------------------------------
Wholesale LD Dedicated Customers Switchless Customers
[ ]IMT [ ]1+ Orig [ ]Sw Access
[ ]EANT [ ]TF Orig [ ]Ded Access
[ ]1+ Term
- --------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------
Contract Term
Product Quantity/Options Months (yrs.)
- --------------------------------------------------------------------------
Wholesale LTS [ ]FX not for resale
[ ]Lines [ ]Trunks [ ]ISDN PRI
[ ]All Calls for resale
[ ]Trunks [ ]ISDN PRI
- --------------------------------------------------------------------------
Change/Cancel Form [ ]
- --------------------------------------------------------------------------
Customer Link Worksheet [ ] State
- --------------------------------------------------------------------------
Inside Wiring [ ]ELI to provide
- --------------------------------------------------------------------------
Other - Describe:____________________________________
- --------------------------------------------------------------------------
Sales Order #: DLLS0031
Customer: NetVoice Technologies, Inc.
[ ]Local Number Portability (LNP)
NRC MRC
If applicable: TLC (quote)
ATM/Fr. Relay (quote)
Other
Total (all sheets) $1,635.00 $6,915.00
I have read, understand, and agree to the terms of this Sales Order's
"Master Services Agreement" and other documents attached hereto. I
understand that changes I request to this order must be in writing and may
result in a new turn-up date and an additional charge to the order. I
acknowledge that the pricing quoted herein is proposed and does not become
firm unless I sign and date this Sales Order within 30 days from the date
submitted by ELI, after which prices are subject to change. I acknowledge
that ELI Sales Order processing does not start until ELI receives my
completed and signed order.
Authorized Customer Signature_______________________ Date________
Print Name_______________________ Title________
Remarks:
<PAGE>
ELECTRIC
LIGHTWAVE Collocation
Pricing Sheet
Customer: NetVoice Technologies, Inc. Sales Order #: DLLS0031
PO#: 0
Completion Date: 06/18/1999 Customer Account #: 0
Term: 3 yrs Sales Order Date: 05/28/1999
City: Portland Desired Due Date: 06/18/1999
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
Unit Install Total Monthly Unit Total
Quantity Code Product Description Price Install Price Monthly
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 Collocation Space $800.00 $800.00 $600.00 $600.00
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
Additional Services Minimum:
$1500.00
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
Total Charges
- ---------------------------------------------------------------------------------------------
Monthly Recurring Charges $600.00
- ---------------------------------------------------------------------------------------------
Non-Recurring Charge $800.00
- ---------------------------------------------------------------------------------------------
</TABLE>
Termination charge for multiple year rates:
monthly rate * number of months remaining * .40.
See Product Manager for National Expansion cities.
I have read, understand, and agree to the terms of this Sales Order's
"Master Services Agreement" and other documents attached hereto. I
understand that changes I request to this order must be in writing and may
result in a new turn-up date and an additional charge to the order. I
acknowledge that the pricing quoted herein is proposed and does not become
firm unless I sign and date this Sales Order within 30 days from the date
submitted by ELI, after which prices are subject to change. I acknowledge
that ELI Sales Order processing does not start until ELI receives my
completed and signed order.
Customer Signature /s/ WILLIAM BEDRI Date 5/28/99
<PAGE>
ELECTRIC
LIGHTWAVE Dialtone
Lines - Oregon
Pricing Sheet
Customer: NetVoice Technologies, Inc. Sales Order #: DLLS0031
PO#: 0
Completion Date: 06/18/1999 Customer Account #: 0
Term: 3 yrs Sales Order Date: 05/28/1999
Desired Due Date: 06/18/1999
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
Unit Install Total Monthly Unit Total
Quantity Code Product Description Price Install Price Monthly
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 Lines
Simple Business Line $25.00 $25.00
Basic Business Line - 2 way
Enhanced Business Service
PBX Interface
Hybrid Line
1 Installation (per line) $35.00 $35.00
Line Change Charge
DS1 Interface
DS1 Interface
Installation (per DS1)
High Usage Surcharge
Facility Transport Charge
Optional Simple/Basic Business Features
Call Waiting
Speed Call 8 numbers
Speed Call 30 numbers
Calling Number Delivery
Installation (per feature)
PIC Change Charge (per line)
EBS - Optional Features
Call Forward Busy - Programmable
Call Forward Don't Answer - Programmable
Six Way Conferencing
Music on Hold
Calling Number Delivery
Distinctive Ringing
Installation (per feature)
Voice Messaging* [ ] Old charge codes
Voice Messaging Usage (over 425 calls)
Voice Msg Basic
Voice Msg Plus
Voice Msg Basic (EBS)
Voice Msg Plus (EBS)
- ---------------------------------------------------------------------------------------------
<PAGE>
- ---------------------------------------------------------------------------------------------
Unit Install Total Monthly Unit Total
Quantity Code Product Description Price Install Price Monthly
- ---------------------------------------------------------------------------------------------
VM Voice Menuing (to DN or VM per menu)
VM Voice Menuing (to VM per menu)
Announcement Svc
Installation charge (per feature)
Voice Msg Change
Directory Numbers
Reserved Numbers
Installation
Vanity Numbers
Virtual Number
Installation
Interim Number Portability
Initial Path (per number)
Additional paths
Listings
Additional Listings
Non-published Service
Listing Change Charge
Custom Link (from worksheet)
Facility Termination
Installation
T-1 Facilities
Installation
Total Charges
Monthly Recurring Charges $25.00
Non-Recurring Charge $35.00
- ---------------------------------------------------------------------------------------------
</TABLE>
*VM includes MWI, CFBL, CFDA features and 425 calls per month to VM box.
Early termination charge for term rates:
monthly rate * number of months remaining * .40.
I have read, understand, and agree to the terms of this Sales Order's
"Master Services Agreement" and other documents attached hereto. I
understand that changes I request to this order must be in writing and may
result in a new turn-up date and an additional charge to the order. I
acknowledge that the pricing quoted herein is proposed and does not become
firm unless I sign and date this Sales Order within 30 days from the date
submitted by ELI, after which prices are subject to change. I acknowledge
that ELI Sales Order processing does not start until ELI receives my
completed and signed order.
Customer Signature /s/ WILLIAM BEDRI Date 5/28/99
<PAGE>
ELECTRIC
LIGHTWAVE Retail Internet
Pricing Sheet
Customer: NetVoice Technologies, Inc. Sales Order #: DLLS0031
PO#: 0
Completion Date: __________ Customer Account #: 0
Term: 3 yrs Sales Order Date: 05/28/1999
City: Portland Desired Due Date: 06/18/1999
<TABLE>
<CAPTION>
------------------------------------------------
Retail Pricing
- ---------------------------------------------------------------------------------------------
Unit Install Total Monthly Unit Total
Quantity Code Product Description Price Install Price Monthly
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 Local Loop Access
1 DS1 Monthly $0.00 $0.00
Install $0.00 $0.00
DS3 Monthly
Install
LongHaul Local Loops
DS1 Monthly
Install
DS3 Monthly
Install
384 Kbps Frame Relay
128 Kbps CIR
DS1 Frame Relay
256 Kbps CIR
512 Kbps CIR
Dedicated DS1
1 DS1 (1.536 Mbps) $800.00 $800.00 $1,000.00 $1,000.00
Balanced 3.1 Mbps (2 DS1s)
Colocated Services*
Shared 10 Base-T Ethernet
10 Base-T Ethernet
DS3 High Speed Access*(HSSI port)
Select Speed (Mbps:)
Installation
Managed Router Service
Cisco 2501& CSU/DSU (DS1 package)
News Reader Service [ ] ELI Customer
1st 4 class C addresses
Add'l class C addresses
1 Net Trends $40.00 $40.00
- ---------------------------------------------------------------------------------------------
<PAGE>
- ---------------------------------------------------------------------------------------------
Unit Install Total Monthly Unit Total
Quantity Code Product Description Price Install Price Monthly
- ---------------------------------------------------------------------------------------------
Primary DNS
Installations
Ethernet Hub
News Reader Svce - 1st 4 class C addresses
News Reader Svce - Add'l class C addresses
Net Trends
Promotional Discount
TOTAL CHARGES
Monthly Recurring Charges $1,040.00
Non-Recurring Charge $800.00
- ---------------------------------------------------------------------------------------------
</TABLE>
*Engineering approval required.
I have read, understand, and agree to the terms of this Sales Order's
"Master Services Agreement" and other documents attached hereto. I
understand that changes I request to this order must be in writing and may
result in a new turn-up date and an additional charge to the order. I
acknowledge that the pricing quoted herein is proposed and does not become
firm unless I sign and date this Sales Order within 30 days from the date
submitted by ELI, after which prices are subject to change. I acknowledge
that ELI Sales Order processing does not start until ELI receives my
completed and signed order.
Customer Signature /s/ WILLIAM BEDRI Date 5/28/99
<PAGE>
ELECTRIC
LIGHTWAVE ISDN PRI
Pricing Sheet
Customer: NetVoice Technologies, Inc. Sales Order #: DLLS0031
PO#: 0
Completion Date: __________ Customer Account #: 0
Term: 3 yrs [X] On Net Sales Order Date: 05/28/1999
City: Oregon [ ] Agent Order Desired Due Date: 06/18/1999
MRC Discount:
NRC Discount:
Existing MRC: SO
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------
Discounted
Unit Install Total Monthly Unit Total
Total
Quantity Code Product Description Price Install Price Monthly
Monthly
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
<C>
ISDN Service
6 Data only PRI $1,050.00 $6,300.00
$5,250.00
Voice and Data
Dialable WideBand Service
Premier Call Features
DID Numbers
Off-Net T-1
ISDN Installation
6 Data Only PRI $750.00 $0.00
Voice and Data
Disable Wideband Service
Premier Call Features*
DID Numbers*
Off-Net T-1*
TOTAL CHARGES
Monthly Recurring Charges $6,300.00
$5,250.00
Non-Recurring Charges $0.00
- --------------------------------------------------------------------------------------------------------
</TABLE>
Termination charge for multiple year rates:
monthly rate * number of months remaining * .40.
I have read, understand, and agree to the terms of this Sales Order's
"Master Services Agreement" and other documents attached hereto. I
understand that changes I request to this order must be in writing and may
result in a new turn-up date and an additional charge to the order. I
acknowledge that the pricing quoted herein is proposed and does not become
firm unless I sign and date this Sales Order within 30 days from the date
submitted by ELI, after which prices are subject to change. I acknowledge
that ELI Sales Order processing does not start until ELI receives my
completed and signed order.
Customer Signature /s/ WILLIAM BEDRI Date 5/28/99
EXHIBIT 10.18
GTE
INTERNETWORKING
SERVICE QUOTATION FOR NET VOICE
- -------------------------------------------------------------------------
TO: Bill Bedri Quote Date: Jul 7, 1998
Net Voice Quote Valid To: Jul 8, 1998
13747 Mont Fort Drive Quote Number: 60921.9999.1
Dallas, TX 75240 Service Level: Internet Advantage
5.1, Fixed T1
Bronze
USA
Service Period (please check one as applicable):
- -----------------------------------------------
[X] 1 Year [ ] 2 Years [ ] 3 Years
The Service Period shall commence upon the provisioning by BBN
Corporation, a subsidiary of GTE Internetworking Incorporated ("we",
"our", or "us"), to you of the services listed on this Service Quotation.
Recurring Fees (1 year contract) Monthly Annual
- -------------------------------- ------- ------
Leased Circuit Monthly Recurring $293.95 $3,527.40
T1 Class Loaner Equipment $250.00 $250.00
--------- ---------
$543.95 $3,777.40
One-Time Fees List Price Discount One-Time
- ------------- ---------- --------- --------
Activation, T1 $2,500.00 50.0% $1,250.00
Leased Circuit
Installation Fee $0.00
T1 Class Loaner Equipment -
Shipping & Handling $100.00
---------
$1,350.00
Internet Advantage v5.1 Connection Service is a comprehensive, fully-managed
offering for customers who view the Internet as a strategic
resource and require a high level of reliability, quality, and
performance to use the Internet as a vehicle for collaboration and commerce.
Internet Advantage Bronze Connection Service is monitored and maintained
by GTE Internetworking 24 hours a day, 365 days a year by experienced
operators, technicians, and analysts, and includes the following at no
additional charge:
- - Domain Name Service (DNS): Primary and secondary DNS are provided for
up to 10 domains and 100 kilobytes of associated zone data file storage.
We will also register up to 10 domain names for you with InterNIC. Fees
for initial registration and on-going maintenance fees for each domain
name will be billed to you directly by InterNIC.
- - Stats Advantage Usage Reporting: Provides on-demand, web-based
graphical and tabular management summaries of traffic statistics from
your Internet connection to support your monitoring and capacity planning
needs. In order to be able to view or receive Stats Advantage reports,
Internet Advantage Bronze Connection Service customers must provide GTE
Internetworking with a community string permitting read-only SNMP access
to the CPE router.
- - Network News Feed: Access to a virtually unlimited number of Internet
news groups, bulletin boards, and discussion forums.
- - Web-Based Training: Self-service, web-based training on Internet
technology, configuration and installation information, and guidelines
for installing and operating Internet applications.
For an additional charge, Customer Premises Equipment (CPE) and
associated maintenance are available under Internet
<PAGE>
GTE
INTERNETWORKING
SERVICE QUOTATION FOR NET VOICE
- -------------------------------------------------------------------------
TO: Bill Bedri Quote Date: Jul 7, 1998
Net Voice Quote Valid To: Jul 8, 1998
13747 Mont Fort Drive Quote Number: 60921.9999.1
Dallas, TX 75240 Service Level: Internet Advantage
USA 5.1, Fixed T1
Advantage Bronze Connection Service.
New customer orders for Internet Advantage Connection service must be
placed for at least an initial one-year term. Service discounts may be
available for multi-year commitments. Activation, advanced features, and
hardware-related fees are not discountable.
Telco-related fees contained within this quotation may be estimates and
are not discountable. In all cases, we will bill customers for actual
incurred telco charges and taxes, including any applicable cross-connect
and facility entrance fees. Standard telco extended demarcations will be
billed at $150; non-standard telco extended demarcations will be quoted
on an individual case basis.
An invoice for all one-time fees will be issued following the completion
of service activation. Recurring fees will be invoiced on a monthly
basis in arrears.
With fixed price T1 service, you lock in a constant monthly fee
regardless of how much bandwidth you use.
All invoices are payable net 30 days. Applicable taxes will be additional.
This Service Quotation is applicable only for version 5.1 of Internet
Advantage Connection Service. This Service Quotation does not entitle
you to any future versions or releases of such service that we may make
available during the Service Period unless separately agreed to in
writing by the parties.
<PAGE>
GTE
INTERNETWORKING
SERVICE QUOTATION FOR NET VOICE
- -------------------------------------------------------------------------
TO: Bill Bedri Quote Date: Jul 7, 1998
Net Voice Quote Valid To: Jul 8, 1998
13747 Mont Fort Drive Quote Number: 60921.9999.1
Dallas, TX 75240 Service Level: Internet Advantage
USA 5.1, Fixed T1
Additional Terms:
- -----------------
(a) The Service Quotation and all Services that may be provided pursuant
to this Service Quotation are subject to the terms and conditions of
(a) the Master Agreement for Internetworking Services or the Master
Agreement for Internet Services or Internet Services and Products
Master Agreement previously signed by you (or, if you have not
signed such a Master Agreement, the terms and conditions of the
current Master Agreement for Internetworking Services), and (b) the
Service Schedule for the applicable Services you are purchasing as
indicated in this Service Quotation.
(b) Final acceptance of this Service Quotation by us is subject to
credit check approval, and confirmation of a valid Master Agreement
and Service Schedule signed by Customer.
(c) Any terms and conditions (including but not limited to those
contained in a purchase order issued by Customer) which are
different from or in addition to the terms and conditions contained
in this Service Quotation, the applicable Master Agreement, and/or
the applicable Service Schedule(s) signed by Customer, shall not be
binding on us unless expressly accepted in writing, herein or
otherwise, by our authorized representative, and we hereby object to
and reject all terms and conditions not so accepted.
- -------------------------------------------------------------------------
Customer (Type or Print Full Name):William Bedri, NetVoice Technologies
------------------------------------
Signature: /s/ WILLIAM BEDRI Date:
---------------------- -----------------------
Print Name: William Bedri Title: President
---------------------- -----------------------
- -------------------------------------------------------------------------
Purchase orders should be made out to:
GTE Internetworking
Attention: Michael Zenga
10 Moulton St
Cambridge, MA 02138
Should you have questions about this quotation, please contact Michael
Zenga at 617-873-4475, Fax: 617-873-3599.
E-mail: [email protected]
EXHIBIT 10.19
SOFTWARE LICENSE AND SUPPORT AGREEMENT
This Software License and Support Agreement is entered into by and between
Portal Software, Inc., a Delaware corporation with principal offices at
20883 Stevens Creek Boulevard, Cupertino, California 95014 ("Portal") and
NetVoice Technologies a Texas corporation with principal offices at 13747
Montfort Drive, Suite 250, Dallas, Texas 75240 ("Licensee") and describes
the terms and conditions pursuant to which Portal shall license to Licensee
and support certain Licensed Software (as defined below). This Agreement
shall become effective on the date it is signed by Portal ("Effective Date").
1. DEFINITIONS.
1.1 "Agreement means this Software License and Support Agreement,
including any and all attached schedules.
1.2 "Application" means the specific Application set forth in
Schedule A hereto of the Licensed Software running on one or more
related computers at a single location, that share the same
Licensed Software Database.
1.3 "Confidential Information" means this Agreement and all its
Schedules, any addenda hereto signed by both parties, all
software listings, Documentation, information, data, drawings,
benchmark tests, specifications, trade secrets, object code and
machine-readable copies of the Licensed Software, and any other
proprietary information supplied to Licensee by Portal or by
Licensee to Portal which is clearly marked as "confidential" if
in tangible form, or identified as "confidential" if orally disclosed.
1.4 "Designated Equipment" means the hardware make and model of the
server computer on which the Licensed Software will be installed
as set forth on Schedule A.
1.5 "Documentation" means the documentation and user manuals relating
to the use of the Licensed Software delivered by Portal to
Licensee in either printed or electronic form.
1.6 "Licensed Software" means (i) the software products designated on
Schedule A hereto provided to Licensee by Portal in executable
form (but not the Source Code), (ii) Documentation, (iii) any
source code or object code which Portal in its sole discretion
may provide to Licensee from time to time and (iv) any Updates,
modifications, maintenance releases, bug fixes or work-arounds
which Portal may provide to Licensee from time to time.
1.7 "Licensed Software Database" means the customer database
associated with the Licensed Software which contains the Customer
Records.
1.8 "Production Site" means the address and location of the server
computer on which the Licensed Software will be installed as set
forth on Schedule A.
<PAGE>
1.9 "Prepaid Calling Card" means an Internet prepaid calling card.
The average retail price of a Prepaid Calling Card tracked by the
Licensed Software shall be equal to or less than thirty-five
dollars ($35.00), calculated as follows: total retail value of
all Prepaid Calling Cards divided by the total number of Prepaid
Calling Cards. For purposes of this Agreement, three (3) Prepaid
Calling Card personal identification numbers will count as one
Tier 1 Subscriber.
1.10 "Restricted Release" means any version of the Licensed Software
marked alpha, beta or which is otherwise designated as a
Restricted Release.
1.11 "Subscriber" means an individual customer record account object
("Customer Record") in the Licensed Software Database. The total
number of Subscribers is exactly equal to the number of Customer
Records in the Licensed Software Database. If the Licensed
Software is used to authenticate, bill, rate or otherwise track
the activities of individual users within a corporate or group
account, each such individual user will be deemed a Subscriber
for the purposes of this Agreement. There will be two classes of
Subscribers under this Agreement: (i) Tier 1 and (ii) Tier 2
Subscribers.
1.11.1 "Tier 1 Subscriber" means a Customer Record in the
Licensed Software Database representing a customer to
whom Licensee provides Consumer Voice-over-IP (Internet
protocol) services (b) for which Licensee receives a
periodic flat fee (e.g., regular month fee)
(recognizable under GAAP).
1.11.2 "Tier 2 Subscriber" means a Customer Record in the
Licensed Software Database (a) representing an end user
of Licensee's wholesale Voice-over-IP services for
which Licensee receives a monthly fee recognizable
under GAAP) for such services based on the number of
wholesale minutes per month (or otherwise linked to
usage time). For purposes of this Agreement no more
than fifteen (15) accounts may have access to the
wholesale minutes.
1.12 "Updates" means any updates to the Licensed Software licensed
hereunder which Portal, in its discretion, makes generally
available to its Licensed Software licensees.
2. GRANT OF LICENSE
2.1 For so long as this Agreement remains in force Portal grants to
Licensee a perpetual, non-exclusive and non-transferable right to
use the Licensed Software on the Designated Equipment and on a
single Licensed Software Database located at the designated
Production Site only for the specified Application. Licensee may
possess only the number of copies of any Licensed Software
necessary for the type of use specified herein and may use such
copies only in accordance with this Agreement and the Documentation.
<PAGE>
Portal shall at all times retain ownership of all Licensed
Software including any Documentation and any copies thereof.
2.2 Licensee shall implement reasonable controls to ensure that it
does not exceed the maximum number of Subscribers licensed hereunder.
2.3 Portal will deliver to Licensee, as soon as is practicable, the
necessary password to enable Licensee to download from Portal's
website one machine-readable copy of the Licensed Software, along
with one machine-readable copy of the Documentation. Licensee
may not reproduce Licensed Software or Documentation except as
expressly provided under this Agreement.
2.4 Licensee may copy the Licensed Software and Documentation for
backup or archival purposes provided that all titles, trademark
symbols, copyright symbols and legends, and other proprietary
markings are reproduced.
2.5 Licensee shall be permitted to develop, use and modify APIs,
macros and user interfaces provided by Portal. For the purposes
of this Agreement, such development shall be deemed an authorized
modification of the Licensed Software.
2.6 To use the Licensed Software specified on an Order Form Licensee
may need to use an ancillary program embedded in or delivered
with the ordered Licensed Software. The ancillary program shall
be used only as described in the Order Form of Documentation for
implementation of the ordered Licensed Software and for no other
purpose. Licensee shall have no right to use any other software
program that may be delivered with the ordered Licensed Software.
2.7 Portal grants and Licensee receives no other rights or licenses
to the Licensed Software, derivative works (as defined in the
United States Copyright Act of 1976, Title 17 USC Section 101 et.
seq.) or any intellectual property rights related thereto,
whether by implication, estoppel or otherwise, except those
rights expressly granted in this Section 2.
3. LICENSE RESTRICTIONS
3.1 Licensee agrees that it will not itself, or through any parent,
subsidiary, affiliate, agent or other third party:
3.2 sell, lease, license, sublicense, encumber or otherwise deal with
any portion of the Licensed Software or Documentation;
3.3 except to the minimum extent necessary to comply with EC
Directive, if applicable, or other applicable legislation,
decompile, disassemble, or reverse engineer any portion of the
Licensed Software or attempt to discover any source
<PAGE>
code or underlying ideas or algorithms of any Licensed Software;
3.4 other than to the extent permitted by Section 2.4 above, create
any Derivative Work based on the Licensed Software or any Portal
Confidential Information;
3.5 except to the extent provided by Section 2.1 above, use the
Licensed Software to provide processing services to third
parties, commercial timesharing, rental or sharing arrangements,
or on a "service bureau" basis or otherwise use or allow others
to use the Licensed Software for the benefit of any third party;
3.6 provide, disclose, divulge or make available to, or permit use of
the Licensed Software by persons other than Licensee's employees
who have signed a confidentiality agreement consistent with the
terms and provisions herein, without Portal's prior written consent;
3.7 use any Licensed Software, or all the transfer, transmission,
export, or re-export of any Licensed Software or portion thereof
in violation of any export control laws or regulations
administered by the U.S. Commerce Department, OFAC, or any other
government agency. All the limitations and restrictions on the
Licensed Software in this Agreement also apply to the Documentation.
4. PAYMENTS AND TAXES
4.1 All payments due hereunder shall be made inside the U.S., in U.S.
dollars. In addition to any remedies Portal may have hereunder
or at law, any payments more than thirty (30) days overdue will
bear a late payment fee of 1.5% per month, or, if lower, the
maximum rate allowed by law. Delinquency in payment will result
in a delay or suspension of the Licensed Software implementation
timetable or services (including Support Services) provided by
Portal. Resumption of services will occur after Licensee has
brought itself current on all of its outstanding payment
obligations to Portal. The services will be scheduled in
accordance with the availability of Portal resources. Portal
will not be liable for any damages caused by rescheduling of
suspended services pursuant to this Section 4.1.
4.2 Licensee agrees to pay or reimburse Portal for all federal,
state, dominion, provincial, or local sales, use personal
property, payroll, excise or other taxes, fees, or duties arising
out of this Agreement or the transactions contemplated by this
Agreement (other than taxes on the net income of Portal.) If any
tax is payable by Licensee under this Section 4.2, then the
Licensee shall provide evidence of payment to Portal and Portal
shall use all reasonable efforts to obtain a credit, rebate, or
benefit for that amount against its own tax, and if it receives
such credit, rebate, or benefit it shall refund to Licensee an amount
<PAGE>
equal to the lesser of the amount paid by Licensee and the
credit, rebate, or benefit obtained by Portal.
5. LICENSE FEE
In consideration of the rights granted herein, Licensee shall pay Portal
the license fee(s) as set forth in Schedule A.
6. MAINTENANCE AND TECHNICAL SUPPORT
6.1 Upon payment of the annual maintenance and support fee set forth
on Schedule A, Licensee shall be entitled to receive Updates and
technical support in accordance with Portal's Gold Level Support
Policy ("Support Services). Portal's current Gold Level Support
Policy appears at Schedule B. Support Services shall commence on
the Effective Date of this Agreement.
6.2 In the event Licensee fails to make any required Support Services
payment or otherwise elects to discontinue Support Services,
Portal shall have no obligation to provide the Support Services
described in this Section 6. In order to reinstate or renew
Support Services, Licensee must first pay Portal the then current
annual support services fee and all past support service fees.
In the event Licensee fails to make any required payment or in
the event Licensee breaches any of its obligations under the
Support Services provisions and such breach has not been cured
within thirty (30) days of receipt of notice of breach, Portal
may suspend or cancel Support Services. No updates of the
Licensed Software will be provided to Licensee and no updates may
be copied by Licensee to update any copies of the Licensed
Software unless Support Services have been purchased for such
copies, Support Services fees shall be billed on an annual basis,
payable in advance.
6.3 Portal shall have no obligation to support (a) altered, damaged
or modified Licensed Software (except as authorized by Portal) or
any portion of the Licensed Software incorporated into other
software, (b) Licensed Software that is not the then current or
immediately previous sequential release, (c) problems caused by
Licensee's negligence, abuse, or misapplication, or use of the
Licensed Software other than as specified in Portal's user
documentation or other causes beyond the control of Portal, or
(d) Licensed Software installed in an operating environment or
hardware environment for which the Licensed Software has not been
licensed. Portal shall have no liability for any changes in
Licensee's hardware which may be necessary to use the Licensed
Software.
6.4 Portal reserves the right to change its technical support
guidelines and procedures provided (i) Portal provides Licensee
with at lease sixty (60) days prior written notice of such
changes, and (ii) such changes do not diminish Portal's overall
technical support obligations to Licensee in any material regard.
<PAGE>
7. RESTRICTED RELEASE
If Licensee is selected for participation and elects to participate in a
Restricted Release program, Licensee agrees (i) Portal shall have no
obligation to correct errors in or deliver updates to the Restricted
Release, (ii) Portal shall have no obligation to otherwise support the
Restricted Release, (iii) Licensee will provide Portal with appropriate
test data for the Restricted Release if necessary to resolve problems in
the Restricted Release encountered by Licensee and will promptly report to
Portal any error discovered in the Restricted Release, (iv) the Restricted
Release is experimental, may contain problems and errors and is being
provided to Licensee on an "AS-IS" basis with no warranty of any kind,
express or implied, (v) neither party will be responsible to the other for
any losses, claims or damages of whatever nature, arising out of or in
connection with the performance or nonperformance of the Restricted
Release, (vi) Licensee will not sue the Restricted Release in production
applications without the prior written approval of Portal, and (vii)
Licensee will stop using and return or destroy any Restriction Release
promptly upon Portal's request.
8. TERMINATION
8.1 This Agreement commences on the Effective Date and will remain in
force until it is terminated.
8.2 Portal may, by written notice to Licensee, terminate this
Agreement if any of the following events ("Termination Events")
occur, provided that such termination will not relieve Licensee
of its payment obligations hereunder or otherwise entitle
Licensee to a refund of any portion which have been paid to Portal;
8.3 Licensee is in breach of this Agreement, which breach, if capable
of being cured, is not cured within thirty (30) days (ten (10)
days in the case of nonpayment) after Portal gives Licensee
written notice of such breach; or Portal may terminate this
Agreement immediately upon notice if Licensee breaches any of its
obligations under Section 3 above;
8.4 Licensee terminates its business activities or becomes insolvent,
admits in writing to inability to pay its debts as they mature,
makes and assignment for the benefit of creditors, or becomes
subject to direct control of a trustee, receiver or similar authority.
8.5 Termination will become effective immediately or on the date set
forth in the written notice of termination and any payment
obligations under this Agreement shall immediately become due and
owing. Termination of this Agreement will not affect the
provisions regarding Licensee's or Portal's treatment of
Confidential Information, provisions relating to the payments of
amounts due, provisions limiting or disclaiming Portal's
liability, and/or provisions regarding applicable law, which
provisions will survive termination of this Agreement.
<PAGE>
8.6 Upon termination, all licenses granted hereunder shall cease to
be effective and Licensee shall immediately cease all use of any
affected Licensed Software, Documentation and Portal Confidential
Information.
8.7 Within fourteen (14) days of the date of termination or
discontinuance of this Agreement for any reason whatsoever,
Licensee shall return the Licensed Software, derivative works and
all copies thereof, in whole or in part, all related
Documentation and all copies thereof, and any other Confidential
Information in its possession. Licensee shall furnish Portal
with a certificate signed by an executive officer of Licensee
verifying that the same has been done.
8.8 Termination is not an exclusive remedy and all other remedies
will be available whether or not termination occurs.
9. PATENT AND COPYRIGHT INDEMNITY
9.1 Portal will defend and indemnify Licensee for all costs
(including reasonable attorneys fees) arising from a claim that
the Licensed Software infringes a copyright or patent provided
that (i) Licensee notifies Portal in writing within thirty (30)
days of the claim (ii)Portal has sole control of the defense and
all related settlement negotiations, and (iii) Licensee provides
Portal with the assistance, information, and authority necessary
to perform the above; reasonable out-of-pocket expenses incurred
by Licensee in providing such assistance will be reimbursed by Portal.
9.2 Portal shall have no liability for any claim of infringement
based on (i) use of a superseded or altered release of the
Licensed Software, except for which alteration(s) or
modification(s) has been made by Portal or under Portal's
direction, if such infringement would have been avoided by the
use of the current unaltered release of the Licensed Software
that Portal provides to Licensee, or (ii) the combination,
operation, or use of any Licensed Software furnished under this
Agreement with programs or data not furnished by Portal if such
infringement would have been avoided by the use of the Licensed
Software without such programs or data.
9.3 In the event that the Licensed Software is held or believed by
Portal to infringe, or Licensee's use of the Licensed Software is
enjoined, Portal shall have the option, at its expense, to (a)
modify the Licensed Software to be noninfringing, (b) obtain for
Licensee a license to continue using the Licensed Software, (c)
substitute the Licensed Software with other software reasonably
suitable to Licensee, or (d) if none of the foregoing remedies
are commercially feasible, terminate the license for the
infringing Licensed Software and refund the fees paid for that
Licensed Software, prorated over a five-year term from
<PAGE>
the Effective Date of this Agreement or applicable amendment or
additions schedule. This Section 9.3 states Portal's entire
liability for infringement.
10. WARRANTY
10.1 Portal warrants that it has title to and/or the authority to
grant licenses of the Licensed Software.
10.2 Portal warrants to Licensee that the Licensed Software will
perform in substantial accordance with the Documentation for a
period of ninety (90) days from the Effective Date. If the
Licensed Software does not perform as herein warranted, Portal
shall undertake at its own expense to correct the non-conforming
part of the Licensed Software. If correction is not reasonably
possible or commercially practicable, Portal shall refund the
monies paid by Licensee for that non-conforming Licensed Software.
10.3 Portal warrants that the Licensed Software is designed to be used
prior to, during and after the calendar year 2000 and that the
Licensed Software will operate during each such time period
without error relating to, or the product of, date data which
references different centuries or more than one century. If the
Licensed Software does not perform as warranted, Portal shall
undertake at its own expense to correct the non-conforming part
of the Licensed Software, or if correction is reasonably not
possible, replace such non-conforming part of the Licensed
Software, or if correction is reasonably not possible, replace
such non-conforming part of the Licensed Software free of charge.
If neither of the foregoing is commercially practicable, Portal
shall refund the license and annual maintenance support fees paid
by Licensee for the non-conforming Licensed Software. If a
refund is made in the manner herein contemplated, the parties
will amend the definition of "Licensed Software" in Section A to
reflect the same. The foregoing Year 2000 Warranty shall not
apply (i) if the Licensed Software is used or interfaced with
other software, data or operating systems which are not Year 2000
compliant, (ii) if the Licensed Software has been modified in a
manner not authorized by Portal, or (iii) if Licensee fails to
install an Update if the non-compliance would have been avoided
by installation of such Update. THE FOREGOING ARE LICENSEE'S
SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY.
10.4 Portal's warranty obligations as set forth above are made to and
for the benefit of Licensee only and shall be enforceable against
Portal only if:
10.4.1 The Licensed Software has been properly installed and
has been used at all times in accordance with the
Documentation and this Agreement;
10.4.2 All modifications, alterations or additions to the
Licensed Software, if any, have been made using
<PAGE>
Licensed Software Customization Tools provided by
Portal to Licensee; and
10.4.3 Licensee has not made or caused to be made
modifications, alterations or additions to the Licensed
Software that cause it to deviate from the
Documentation.
10.5 Except as set forth in this Section 10, Portal makes no
warranties, whether express or implied, or statutory regarding or
relating to the Licensed Software or the Documentation, or any
materials or services furnished or provided to Licensee under
this Agreement. Specifically, Portal does not warrant that the
Licensed Software will be error free or will perform in an
uninterrupted manner. To the maximum extent allowed by law,
Portal specifically disclaims all implied warranties of
merchantability and fitness for a particular purpose (even if
Portal had been informed of such purpose) with respect to the
Licensed Software, Documentation and support and with respect to
the use of any of the foregoing.
11. LIMITATION OF LIABILITY
11.1 IN NO EVENT WILL PORTAL OR ITS SUBCONTRACTORS BE LIABLE FOR ANY
LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF
DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OR ANY KIND IN CONNECTION WITH OR ARISING
OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE LICENSED
SOFTWARE OR SERVICES PERFORMED HEREUNDER OR ANY DELAY IN DELIVERY
OR FURNISHING THE LICENSED SOFTWARE OR SAID SERVICES WHETHER
ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING
NEGLIGENCE, EVEN IF PORTAL HAD BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE.
11.2 PORTAL'S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT, TORT
OR ANY OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER
ARISING OR CAUSED, WHETHER OR NOT ARISING FROM PORTAL'S
NEGLIGENCE, SHALL IN NO EVENT BE GREATER THAN (A) IN THE EVENT
SUCH DAMAGE IS NOT RELATED TO SUPPORT, THE LICENSE FEE SPECIFIED
IN SCHEDULE A RELATED TO THE PARTICULAR LICENSED SOFTWARE PROGRAM
WHICH CAUSED THE DAMAGE OR LOSS, OR (B) IN THE EVENT SUCH DAMAGE
OR LOSS IS RELATED TO SUPPORT, THE SUPPORT FEES PAID BY LICENSEE
FOR THE THEN CURRENT SUPPORT TERM.
11.3 No employee, agent, representative or affiliate of Portal has
authority to bind Portal to any oral representations or warranty
concerning the Licensed Software. Any written representation or
warranty not expressly contained in this Agreement is
unenforceable.
12. AUDIT RIGHTS/QUARTERLY REPORTS
12.1 Licensee shall keep and maintain full, accurate and detailed
records regarding its obligations under this
<PAGE>
Agreement and the number of Subscribers of the Licensed Software
Database. Portal of its representatives shall be entitled to
review and audit such books and records and/or Licensee's
compliance with the provisions of this Agreement from time to
time during normal business hours by providing written notice to
Licensee at least ten (10) business days prior to such audit. If
any such audit reveals a deficiency in any amounts due to Portal
hereunder, Licensee will immediately pay such amounts as are
required to re-establish compliance with the terms of this Agreement.
12.2 Commencing ninety (90) days from the Effective Date, Licensee
will provide Portal with calendar quarterly reports setting forth
the total number of Subscribers. Licensee will provide Portal
with all such reports and any payments required hereunder within
thirty (30) days of the end of each calendar quarter.
13. ASSIGNMENT/BINDING AGREEMENT
Neither this Agreement nor any rights under this Agreement may be assigned
or otherwise transferred by Licensee (by operation of law or otherwise), in
whole or in part, including by way of merger, acquisition or sale of all or
substantially all of the voting rights in one or more related transactions,
without Portal's prior written consent.
14. CONFIDENTIALITY
14.1 Each party acknowledges that the Confidential Information
constitutes valuable trade secrets and each party agrees that it
shall use the Confidential Information of the party solely in
accordance with the provisions of this Agreement and it will not
disclose, or permit to be disclosed, the same directly or
indirectly, to any third party without the other party's prior
written consent. Each party agrees to exercise due care in
protecting the Confidential Information from unauthorized use and
disclosure. However, neither party bears any responsibility for
safeguarding any information that it can document in writing (i)
is in the public domain through no fault of its own, (ii) was
properly known to it, without restriction, prior to disclosure by
Disclosing Party, (iii) was properly disclosed to it, without
restriction, by another person with the legal authority to do so,
(iv) is independently developed by Receiving Party without use or
reference to Disclosing Party's Proprietary Information or (v) is
required to be disclosed pursuant to a judicial or legislative
order or proceeding; provided that, to the extent permitted by
and practical under the circumstances. Receiving Party provides
to Disclosing Party prior notice of the intended disclosure and
an opportunity to respond or object to the disclosure and an
opportunity to respond or object to the disclosure or if prior
notice is not permitted or practical under the circumstances,
prompt notice of such disclosure.
<PAGE>
14.2 In the event of actual or threatened breach of the provisions of
Section 3 or Section 14, the non-breaching party will be entitled
to immediate injunctive and other equitable relief, without bond
and without the necessity of showing actual damage.
15. NOTICE
Any notice required or permitted under the terms of this Agreement or
required by law must be in writing and must be (a) delivered in person, (b)
sent by registered mail, return receipt requested, (c) sent by overnight
air courier, or (d) by facsimile, in each case forwarded to the appropriate
address set forth above. Either party may change its address for notice by
written notice to the other party. Notices will be considered to have been
given at the time of actual delivery in person, three (3) business days
after posting, or one day after (i) delivery to an overnight air courier
service of (ii) the moment of transmission by facsimile.
16. MISCELLANEOUS
16.1 FORCE MAJEURE. Neither party will incur any liability to the
other on account of any loss or damage resulting from any delay
or failure to perform all or any part of this Agreement is such
delay or failure is caused, in whole or in part, by events,
occurrences, or causes beyond its control and without negligence
of the parties. Such events, occurrences or causes will include,
without limitation, acts of God, strikes, lockouts, riots, acts
of war, earthquakes, fire and explosions, but the ability to meet
financial obligations is expressly excluded.
16.2 WAIVER. Any waiver of the provisions of this Agreement or of a
party's rights or remedies under this Agreement must be in
writing to be effective. Failure, neglect or delay by a party to
enforce the provisions of this Agreement or its rights or
remedies at any time will not be construed to be deemed a waiver
of such party's rights under this Agreement and will not in any
way affect the validity of the whole or any part of this
Agreement or prejudice such party's right to take subsequent action.
16.3 SEVERABILITY. If any term, condition or provision in this
Agreement is found to be invalid, unlawful or unenforceable to
any extent, the parties shall endeavor in good faith to agree to
such amendments that will preserve, as far as possible, the
intentions expressed in this Agreement. If the parties fail to
agree on such an amendment, such invalid term, condition or
provision will be severed from the remaining terms, conditions
and provisions, which will continue to be valid and enforceable
to the fullest extent permitted by law.
16.4 PORTAL LICENSORS. The parties acknowledge that the Licensed
Software may contain software licensed by Portal from third
parties ("Portal Licensors"). Portal Licensors may be direct and
intended third party beneficiaries
<PAGE>
of this Agreement and may be entitled to enforce it directly
against Licensee.
16.5 ENTIRE AGREEMENT. This Agreement (including the Schedules and
any addenda hereto signed by both parties) contains the entire
agreement of the parties with respect to the subject matter of
this Agreement and supercedes all previous communications,
representations, understandings and agreements, either oral or
written, between the parties with respect to said subject matter.
16.6 STANDARD TERMS OF LICENSES. No terms, provisions or conditions
of any purchase order, acknowledgement or other business form
that Licensee may use in connection with the acquisition or
licensing of the Licensed Software will have any effect on the
rights, duties or obligations of the parties under, or otherwise
modify, this Agreement, regardless of any failure of Portal to
object to such terms, provisions, or conditions.
16.7 PUBLIC ANNOUNCEMENTS/PUBLICITY. Licensee and Portal agree to
cooperate regarding public relations activities, including public
announcements, joint press releases, and other activities to be
mutually agreed. Neither party will perform such activities
without the prior written consent of the other party, which
consent shall not be unreasonably withheld.
COUNTERPARTS. This Agreement may be executed in counterparts,
each of which so executed will be deemed to be an original and
such counterpart together will constitute one and the same Agreement.
16.8 APPLICABLE LAW. This Agreement will be interpreted and construed
pursuant to the laws of the State of California and the United
States without regard to conflict of laws provisions thereof, and
without regard to the United National Convention on the
International Sale of Goods. Any legal action or proceeding
relating to this Agreement shall be instituted in a state or
federal court in Santa Clara County, California. Portal and
Licensee agree to submit to the jurisdiction of, and agree that
venue is proper in, these courts in any such action or
proceeding. This prevailing party in any action to enforce this
Agreement will be entitled to recover its attorney's fees and
costs in connection with such action. Licensee represents that
it is not a government agency and it is not acquiring the license
pursuant to a government contract or with government funds.
IN WITNESS WHEREOF, the authorized representatives of the parties hereby
bind the parties by signing below:
<PAGE>
NETVOICE TECHNOLOGIES
"Licensee"
By:_______________________________
Print Name:_______________________
Title:____________________________
Date:_____________________________
PORTAL SOFTWARE, INC.
"Portal"
By:_______________________________
Print Name:_______________________
Title:____________________________
Date:_____________________________
<PAGE>
SCHEDULE A
SECTION 1.0 LICENSED SOFTWARE
The following Portal Software products and their associated online
documentation will be provided by Portal and will comprise the "Licensed
Software:"
* Infranet(R), including Infranet Server, Infranet Developer,
Infranet Administrator, Infranet Payment Tool, Infranet Pricing
Tool, Policy Configuration Tool, Invoice Designer Tool, Infranet
Reports;
* Infranet IPT Manager
SECTION 2.0 APPLICATION DESCRIPTION/PLATFORM/INITIAL SUBSCRIBER LIMIT
2.1 Application: (i) Billing and customer management of Tier 1
Subscribers of Licensee's Consumer Voice-over-IP
services: including customer of Licensee's Prepaid
Calling Card, and "Flat-Rate-One Plus" services. The
Licensed Software will only be used for IP Telephony
services.
(ii) Billing and customer management of Tier 2
Subscribers of Licensee's Wholesale Voice over IP
services. The Licensed Software will only be used for
IP Telephony services.
2.2 Platform (O/S): Solaris
2.3 Initial Subscriber Limit:
(i) 20,000 Tier 1 Subscribers
(ii) 15 Tier 2 Subscribers for up to a total 15,000,000 minutes per month
SECTION 3.0 INSTALLATION SITES
3.1 Production Site: NetVoice Technologies, 13747 Montfort Drive, Suite
250, Dallas, TX 75240
3.2 Development Site: NetVoice Technologies, 13747 Montford Drive, Suite
250, Dallas, TX 75240
3.3 Backup Site: NetVoice Technologies, 13747 Montford Drive, Suite 250,
Dallas, TX 75240
SECTION 4.0 LICENSE AND MAINTENANCE SUPPORT SERVICE FEES
4.1 Software License Fees
The following table sets forth the license fees for the Licensed
Software for the above-stated Application for up to the number of
Subscribers set forth in Section 2.0.
Licensed Tier 1 Tier 2 Payment Due Date
Software Subscriber Subscriber
Component License Fees License Fees
<PAGE>
Infranet $40,000.00 $50,000.00 See Section 5.0 below
4.2 Annual Gold Level Support Services Fees
Portal will provide Gold Level Maintenance Support Services in
accordance with Schedule B ("Support Services") for up to the number of
Subscribers set forth in Section 2.0 for one (1) year from the Effective
Date for the fees set forth below. Support Services will be automatically
renewed in one-year periods unless Licensee terminates such Support
Services by providing written notice to Portal at least sixty (60) days
prior to the end of the then-current annual support services term. Portal
agrees to offer Support Services for at least three (3) years from the
Effective Date.
Portal Support Services Annual Fee Annual Payment Date
Gold Level Support Services $18,000.00 Effective Date and each
anniversary thereafter
4.3 Additional Subscriber License and Support Service Fees
For up to two (2) years from the Effective Date ("Option Period")
Licensee shall be entitled to use the Licensed Software listed in Section
1.0 above for the designated Application in connection with additional
Subscribers ("Additional Subscribers") provided Licensee shall pay the
amounts set forth in the following table. Additional Subscribers must be
licensed in the incremental blocks specified and not one at a time.
Associated Annual Support Services fees are due when Additional Subscribers
are licensed but will be prorated over the remainder of the annual Support
Services term during which they are added.
4.3.1 Additional Tier 1 Subscribers
Subscribers in License Fee License Fee Per Annual Gold
Block Per Subscriber Block Support Services
Fee Per Block
25,000 $2.00 $50,000.00 $10,000.00
4.3.2 Additional Tier 2 Subscribers
Subscribers in Minutes per License Fee Per Annual Gold
Block Month per Block Block Support Services
Fee Per Block
15 15,000,000 $50,000.00 $10,000.00
SECTION 5.0 PAYMENT SCHEDULE
Licensee agrees to make payment in accordance with the following table:
DESCRIPTION AMOUNT PAYMENT DUE DATE
License Fee $90,000.00 Effective Date
<PAGE>
Annual Gold Support Payment $18,000.00 Effective Date
Basic Infranet Developer
Training $2,500.00 per Within 30 days
student of Invoice Date
Advanced Infranet Developer
Training $2,500.00 per Within 30 days
student of Invoice Date
EXHIBIT 10.20
CISCO SYSTEMS CAPITAL CORPORATION MASTER LEASE AGREEMENT
5500 Wayzata Boulevard, Suite 725
Golden Valley, MN ___16
Tel. 612-393-1904 FAX 612-513-3299
LEGAL NAME OF LESSEE D.B.A. NAME FEDERAL TAX ID#
__________________________________________________________________________
ADDRESS COUNTY
___________________________________________________________________________
CITY STATE/PROVINCE ZIP __CORP. ___ PART. ___PROPRIETORSHIP
___________________________________________________________________________
CONTACT NAME PHONE NUMBER FAX NUMBER
___________________________________________________________________________
SUPPLIER/VENDOR SALES REPRESENTATIVE
___________________________________________________________________________
ADDRESS CITY STATE ZIP
___________________________________________________________________________
LEASE TERMS AND CONDITIONS
The terms and conditions of this Master Lease Agreement ("Master
Agreement") shall apply to each and every Equipment Schedule ("LEASE")
which shall become part of and attached to this Master Agreement. The
Master Agreement and all Leases subsequently executed shall be referred to
jointly as "Agreement."
1. Sunrise Leasing Corporation ("LESSOR") agrees to lease to LESSEE and
Lessee agrees to lease from LESSOR the equipment listed on each LEASE
("EQUIPMENT").
2. TERM, RENEWALS AND EXTENSIONS: The initial term and the rights and
obligations of the parties shall commence on the Acceptance Data
(hereinafter defined) and continue from the Commencement Date (hereinafter
defined) for the number of months set forth the LEASE. The Acceptance Date
with respect to each item of EQUIPMENT shall be the sixteenth (16th) day
after the date of shipment to LESSEE. The Commencement Date shall be the
first day of the month following the Acceptance Date. THIS LEASE IS NON-
CANCELABLE FOR THE FULL TERM HEREOF. The LEASE shall renew automatically
in one year non-cancelable increments unless LESSOR receives written notice
of LESSEE'S intent to: (a) purchase the EQUIPMENT or (b) terminate the
LEASE. All notices must be received by LESSOR in writing by certified
mail, return receipt, Ninety (90) days prior to the expiration date of the
initial term or any of the non-cancelable increments of the LEASE.
3. PAYMENT: LESSEE agrees to pay to LESSOR monthly LEASE payments as
stated herein in advance on the Commencement Date and on the first day of
each month thereafter during the LEASE term. If the Commencement Date is
not the same date as the Acceptance Date, LESSEE shall pay LESSOR interim
rent on the
<PAGE>
Acceptance Date for the period of time from the Acceptance Date up to, but
not including the Commencement Date in an amount equal to 1/30th of the
monthly LEASE payment multiplied by the number of days from (and including)
the Acceptance Date. LESSOR shall bill LESSEE by invoice for LEASE
payments at LESSEE'S address set forth above. LESSEE shall remit payment
to the address set forth on the invoice. The obligation of LESSEE to make
lease payments is unconditional.
4. WARRANTIES: LESSOR HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION,
WARRANTY, PROMISE, OR COVENANT, EXPRESS OR IMPLIED, AS TO THE CONDITION,
QUALITY, DURABILITY, CAPABILITY, FUNCTION, PERFORMANCE, OR SUITABILITY OF
THE EQUIPMENT, ITS MERCHANTABILITY, OR ITS FITNESS FOR ANY PARTICULAR
PURPOSE OR AGAINST INTERFERENCE OR AGAINST INFRINGEMENT. THE PARTIES AGREE
THAT AS THE LESSEE SELECTED BOTH THE EQUIPMENT AND THE SUPPLIER OF THE
EQUIPMENT, NO DEFECT, EITHER PATENT OR LATENT, SHALL RELIEVE LESSEE OF ITS
OBLIGATION HEREUNDER. LESSEE AGREES THAT LESSOR SHALL NOT BE LIABLE FOR
SPECIFIC PERFORMANCE OR ANY LIABILITY, LOSS, DAMAGE, INCLUDING
CONSEQUENTIAL AND INCIDENTAL DAMAGES, ARISING OUT OF LESSEE'S USE OF THE
EQUIPMENT, OR SUPPLIER'S FAILURE TO TIMELY DELIVER THE EQUIPMENT.
5. ASSIGNMENT: (A) LESSEE SHALL NOT ASSIGN, SUBLET, LEND, TRANSFER, OR
PLEDGE THIS LEASE OR THE EQUIPMENT WITHOUT LESSOR'S PRIOR WRITTEN APPROVAL.
THIS LEASE AND THE COVENANTS AND OBLIGATIONS HEREUNDER SHALL BE BINDING
UPON ANY SUCH ASSIGN, SUCCESSOR, REPRESENTATIVE OR TRANSFEREE OR LESSEE.
(B) LESSOR may assign, transfer, pledge or sell LESSOR'S interest in this
LEASE or the EQUIPMENT. Upon notification of such assignment, LESSEE shall
remit lease payments directly to the address set forth on the notification.
In no event shall any assignee of LESSOR be obligated to perform any duty,
covenant, condition, or promise under this LEASE. (C) All terms and
conditions hereof shall be binding upon all successors and assigns of the
parties hereto but only to the extent such successors and assigns are
permitted hereunder.
6. UCC FILINGS: LESSEE hereby agrees to execute such financing
statements, amendments thereto and other instruments as may be requested by
LESSOR and hereby constitutes and appoints LESSOR its true and lawful
attorney-in-fact to execute such financing statements on behalf of LESSEE
without the LESSEE'S signature. LESSEE agrees that the filing of this
LEASE or a photocopy thereof shall constitute and be the equivalent of the
filing of an original financing statement with respect to the EQUIPMENT
under the Uniform Commercial Code and LESSEE hereby adopts any photocopy or
other reproduction of its signature on this LEASE as its own.
7. PURCHASE OPTION: Upon lawful termination of this LEASE and provided
that no Event of Default has occurred during the term of the LEASE, LESSEE
shall have an option to purchase all (not part) of the EQUIPMENT without
recourse or warranty ("Purchase Option"). The LESSEE, however, is required
to give ninety (90) days written notice to LESSOR prior to the end of the
LEASE of its intention to purchase the EQUIPMENT. The payment for the
EQUIPMENT purchase must be made prior to the next usual LEASE rental
payment date for that LEASE, otherwise LESSEE shall be billed for the next
LEASE payment under the terms of the LEASE and the LEASE payment must be
made promptly. If an Event of Default has occurred during the term of the
LEASE or payment for the EQUIPMENT is not made pursuant to the terms of
this Option, LESSEE'S Purchase Option shall be canceled forthwith. LESSEE
does not have the right to assign its Purchase Option rights to any other
entity. THE FAIR MARKET VALUE OF
<PAGE>
EQUIPMENT SHALL BE THE RETAIL MARKET PRICE FOR USED, WELL MAINTAINED
EQUIPMENT AT THE TERMINATION OF A LEASE.
8. USE OF EQUIPMENT: LESSEE shall use the EQUIPMENT solely at the
business location as set forth in the Equipment Schedule. LESSEE shall use
the EQUIPMENT in compliance with the Manufacturer's or Supplier's suggested
guidelines. Provided LESSEE is not in default hereunder, LESSEE shall have
the right to quiet and peaceful use of the EQUIPMENT, LESSOR shall be
permitted to inspect the EQUIPMENT during LESSEE'S regular business hours.
9. REPAIRS: LESSEE, at its own expense shall keep the EQUIPMENT in good
repair, and maintain a service agreement in full force throughout the term
of the LEASE which fulfills all of the manufacturer's or vendor's
maintenance requirements as set forth in its full service maintenance
contract. Notwithstanding LESSEE agrees to pay LESSOR for any expense
incurred to cause the EQUIPMENT to meet vendor's specifications. LESSEE
shall pay such charges immediately upon request.
10. INSURANCE. LESSEE shall provide, and pay for (a) insurance against
the loss or theft of or damage to the EQUIPMENT for the full replacement
value and (b) public liability and property damage insurance naming LESSOR
as Loss Payee or Additional Insured. Upon request from LESSOR, LESSEE
shall provide LESSOR with a Certificate of Insurance.
11. NET LEASE: LESSEE intends the LEASE payments hereunder to be net to
LESSOR. LESSEE shall pay, or reimburse LESSOR, property taxes, fees,
assessments, charges and taxes (municipal, state and federal) which are
imposed upon this LEASE or the EQUIPMENT or its ownership, leasing,
renting, possession or use while it is subject to this LEASE, excluding,
however, taxes based on LESSOR'S net income. Unless otherwise specified in
the LEASE, LESSOR shall be responsible for filing all personal property tax
returns with respect to the EQUIPMENT and shall pay all taxes in connection
with such filing. LESSEE shall reimburse LESSOR for such personal property
tax payments within ten (10) days of receipt of LESSOR'S invoice therefore.
12. TITLE: Title to the EQUIPMENT shall remain in LESSOR except upon the
exercise of the Purchase Option by LESSEE. All replacement parts,
accessories, additions to, or modifications of the EQUIPMENT shall become
property of LESSOR, LESSEE shall affix to the EQUIPMENT, in a prominent
place, any tags, stickers, labels or markings supplied by LESSOR stating
ownership of the EQUIPMENT, LESSEE shall give LESSOR immediate notice of
any attachment or judicial process affecting the EQUIPMENT or LESSOR'S
ownership thereof.
13. RISK OF LOSS: Upon acceptance of the EQUIPMENT, LESSEE shall bear
risk of loss from any cause whatsoever and any such loss shall not relieve
LESSEE from any obligation hereunder including the duty to make LEASE
payments. In the event the EQUIPMENT is lost or damaged beyond repair,
LESSEE shall replace the EQUIPMENT with identical EQUIPMENT, which shall
become the EQUIPMENT for purposes of this LEASE.
14. DELIVERY AND RETURN OF PRODUCT: LESSEE assumes the full expense of
transportation, insurance, and installation to LESSEE'S site. Upon lawful
termination of this LEASE or upon LESSEE'S default, and not less than
fifteen (15) days or more than thirty (30) days prior to the return of the
EQUIPMENT, LESSEE shall, at LESSEE'S sole expense, provide LESSOR a letter
from the manufacturer certifying that the Product is in good operating
condition and
<PAGE>
is eligible for continued maintenance and that the operating system is at
the then current level. LESSEE shall remain obligated to pay Rent on the
Product until the Product and certification are received by LESSOR.
LESSEE, at its own expense, shall ___ insure, and transport the EQUIPMENT
to LESSOR or to a location within the Continental U.S. designated by LESSOR
to receive the EQUIPMENT in the same condition it was at the commencement
of the LEASE reasonable wear and tear excepted.
15. EVENTS OF DEFAULT: The following shall be "Events of Default": (a)
LESSEE fails to make any LEASE payment within five (5) days after the date
the payment is due, (b)LESSEE fails to allow LESSOR to inspect the
EQUIPMENT during business hours; (c) LESSEE fails to provide insurance on
EQUIPMENT, (d) LESSEE fails to maintain the EQUIPMENT and maintain a
service contract; (e) LESSEE assigns or otherwise transfers this lease or
the EQUIPMENT without LESSOR'S prior written approval; (f) LESSEE creates,
incurs, or assumes any mortgage, lien, pledge, or other encumbrance or
attachment of any kind whatsoever, with respect to the EQUIPMENT or this
LEASE or any of LESSOR'S interest hereunder; (g) LESSEE moves the EQUIPMENT
to a location other than as stated on the front page hereof without
LESSOR'S prior written approval; (h) LESSEE fails to return the EQUIPMENT
to LESSOR upon termination of this LEASE; (i) LESSEE files or has filed
against it a petition in bankruptcy or seeking similar relief; (j) LESSEE
_________[SENTENCE CUT OFF ON COPY] agreement between the parties.
16. REMEDIES: Unless LESSEE cures an event of default within 10 business
days from when it has received written notice from LESSOR, the parties
agree that upon the occurrence of an Event of Default, LESSOR may take one
ore more of the following actions: (i) declare the entire amount of the
remaining LEASE payments, including arrearages, due and immediately
payable; (ii) take peaceful possession of the EQUIPMENT with or without
court order; and (iii) recover all commercially reasonable costs and
expenses incurred by LESSOR in any repossession, recovery, storage or
repair, sale, release or other disposition of the EQUIPMENT. No right or
remedy herein conferred upon or reserved to LESSOR is exclusive of any
other right or remedy hereunder or allowed by law. Each right and remedy
shall be cumulative and may be exercised singly or in combination. To the
extent permitted by applicable law, LESSEE also hereby waives any rights
now or hereafter conferred by statute or otherwise which may require LESSOR
to sell, lease or otherwise use the EQUIPMENT in mitigation of LESSOR'S
damages, or which may otherwise limit or modify any of LESSOR'S rights or
remedies under this paragraph.
17. LESSOR'S EXPENSES: LESSEE shall pay LESSOR all costs and expenses,
including reasonable attorney's fees, incurred by LESSOR in exercising any
of its rights or remedies hereunder. To the extent allowed by law, LESSEE
shall be obligated to pay a late payment penalty equal to 5% of the monthly
rental for each month the payment is delinquent, or the maximum rate
permitted by law.
18. INDEMNITY: LESSEE shall indemnify LESSOR against, and hold LESSOR
harmless from, any and all claims, actions, suits, proceedings, costs,
expenses, damages and liabilities, including reasonable attorney's fees,
arising out of, connected with, or resulting from this LEASE or the
EQUIPMENT without limitation. The indemnities contained herein shall
survive termination of this LEASE.
19. NON-WAIVER: LESSOR'S failure to require strict performance by LESSEE
of any of the provisions of this LEASE shall not be a waiver thereof.
<PAGE>
20. SEVERABILITY: If any provision of this LEASE be declared invalid,
such provision shall be inapplicable and deemed omitted, but the remaining
provisions, including the default and remedy provisions, shall remain in
full force and effect.
21. WAIVER: Except as hereinafter specifically provided and to the extent
allowed by law, LESSEE and LESSOR agrees that the provisions of Uniform
Commercial Code Article 2A, as enacted by the State of Minnesota, shall not
be applicable to this Agreement. Notwithstanding the foregoing, UCC
Sections 2A-109, 2A-523, 2A-525, 2A-526 and 2A-531 shall remain applicable
in their current form.
22. CHOICE OF LAW, JURISDICTION AND VENUE: The parties herein expressly
agree that this Agreement shall be governed by the laws of the State of
Minnesota and shall be interpreted, construed and enforced in accordance
with the laws of the State of Minnesota. In any legal action hereunder,
LESSEE hereby consents to personal jurisdiction and venue in the Courts of
the State of Minnesota, and LESSEE will not object to personal jurisdiction
or venue in the Courts of the State of Minnesota.
23. Monthly Lease Payments and other Lease Terms shall be shown on
Equipment Schedules to this Master Agreement and are incorporated herein by
reference.
LESSEE HAS READ AND IS SUBJECT TO THE CONDITIONS SET FORTH HEREIN. This
Master Agreement Constitutes the entire Agreement between the parties and
no provision of this Master Agreement shall be deemed waived, amended or
modified by either party unless such waiver, amendment or modification is
in writing signed by the party to be charged thereby.
IN WITNESS WHEREOF LESSEE HAS HEREBY EXECUTED THIS NON-CANCELABLE LEASE
THIS _____ DAY OF _______________, 200_.
NAME OF LESSEE: LESSOR: SUNRISE LEASING CORPORATION
SIGNED____________________ DATE________ SIGNED__________________ DATE______
NAME AND TITLE_________________________ NAME AND TITLE_____________________
EXHIBIT 10.21
CISCO SYSTEMS CAPITAL CORP. EQUIPMENT SCHEDULE
5500 Wayzata Blvd., Suite 725
Golden Valley, MN 55416-1242
Tel. 800-928-2349 FAX 612-513-3299
EQUIPMENT SCHEDULE FOR MASTER LEASE AGREEMENT
The Equipment listed on this Equipment Schedule is subject to the
applicable Master Lease Agreement and all the conditions and terms stated
therein.
Equipment Location: __________________________________________________
Vendor Name: _________________________________________________________
Address: _____________________________________________________________
Contact Phone Number: ________________________________________________
Equipment Description
---------------------
Price per Ext. Price/
Quantity Make/Model Serial Number Month Month
- -------- ---------- ------------- --------- -------
2 5300 48VOX $1,104.00
AS5300 AS5300 Shelf
AS53-AC-PWR AC Power
CAB-AC Power Cord, 110V
SF53CP-11.3.2N Cisco IOS, IP Plus
AS53-T1-48VOX, 48VOX DSPs
Quad T1/PRI Card
VC-SW-1.0, Firmware for AS53-CC-VOX
CON-SNT-AS5300, 3yr SMARTnet, 8x5 NBD,2
Total Price Per Month:
Applicable Taxes:
Total Monthly Lease Payment:
* Monthly Lease Payments will be made via Automatic Bank Payments (ACH)
* There is a 90 day grace period prior to commencement of the Monthly
Lease Payments
* 24 Monthly Lease Payments are required after the 90 day grace period
* The Monthly Lease Payments are due in advance
* A Security Deposit equal to one monthly payment will require after the
90 day grace period
LESSEE HAS READ AND IS SUBJECT TO THE CONDITIONS SET FORTH ON THE MASTER LEASE
IN WITNESS WHEREOF LESSEE HAS HEREBY EXECUTED THIS NON-CANCELABLE LEASE
THIS ______ DAY OF ________________, 200__.
<PAGE>
NAME OF LESSEE: _______________________ LESSOR: SUNRISE LEASING CORPORATION
SIGNED_________________ DATE___________ SIGNED____________________________
NAME AND TITLE:________________________ DATE______________________________
<PAGE>
CISCO SYSTEMS CAPITAL CORPORATION
5500 Wayzata Boulevard Suite 725
Golden Valley, MN 55416
Tel. 612-593-1904 FAX 612-513-3299
March 5, 1999
Mr. Bill Bedri Fax #: 972-788-2995
Netvoice Technologies, Inc.
13747 Montfort #101
Dallas, TX 75240
Re: Cisco Easy Access Lease # 72003013AA
Dear Mr. Bedri:
Your first withdrawal will occur 4/1/99 and is detailed below:
Detail Payment Tax Total
------ ------- --- -----
12/10/98-3/31/99: $1,619.20 $133.58 $1,752.78
4/1/99-4/30/99: $2,208.00 $182.16 $2,390.16
Security Deposit: $2,208.00 $182.16 $2,390.16
Shipping Charges (if any): $0.00 N/A $0.00
Total Withdrawal: $6,533.10
Beginning 5/1/99, and on the first day of the month, throughout the term of
your lease, the monthly withdrawal amount will be: $2,390.16
If you have any questions, please contact me at (612) 513-3254.
Sincerely,
Jason Riley
Cisco Systems Capital Corporation
<PAGE>
AUTHORIZATION AGREEMENT FOR AUTOMATIC PAYMENTS
The ("Buyer") hereby authorizes and directs the Lessor and the Bank named
below to initiate variable entries to the checking account designated below
for the purposes of making payments due from the Lessee to the Lessor
pursuant to this Agreement. Lessee hereby represents and agrees that such
checking account is and will continue to be maintained primarily for
business purposes. Lessee further agrees that it will maintain at all
times sufficient balances in such account to allow Lessor and the Bank
named below to charge such account for the charges due from the Lessee
hereunder. Unless Lessee's check is otherwise enclosed, please enclose a
blank copy of Lessee's check for reference purposes.
DEPOSITORY NAME BRANCH LEASE/SCHEDULE
(FINANCIAL INSTITUTION)
___________________________________________________________________________
CITY STATE ZIP
___________________________________________________________________________
ABA NUMBER (LOCATION ACCOUNT NUMBER
BETWEEN [ ] ON BOTTOM OF CHECK)
___________________________________________________________________________
NAMES ON ACCOUNT
___________________________________________________________________________
DATE SIGNATURE
___________________________________________________________________________
<PAGE>
CISCO SYSTEMS CAPITAL CORPORATION
Ste 725, 5500 Wayzata Blvd.
Golden Valley, MN 55416-1244
Ph: 612-593-1904 Fax: 612-513-3299
March 5, 1999
BILL BEDRI Fax: (972) 788-2995
NETVOICE TECHNOLOGIES, INC.
13747 MONTFORT #101
DALLAS, TX 75240
Re: Cisco Systems Capital Corporation Lease #72003013AA
Dear Bill Bedri:
We are happy to include you as part of the Cisco Systems Capital
Corporation leasing portfolio.
According to the terms and conditions of the non-cancelable lease, payments
are due on the first day of the rental period. As required by your lease,
all payments will be automatically withdrawn from your checking account.
Our first withdrawal on 1 Apr 1999 will make your lease account current.
On a continuing basis, rental amounts will be withdrawn monthly on the 1st
day of the rental period. The terms of the lease, as well as details of
our first withdrawal are summarized below:
Term of Lease: 24 months
Lease acceptance Date: 10 Dec 1998
Period Covered by First Withdrawal: 10 Dec 1998-30 Apr 1999
Monthly Withdrawal Amount: $2,208.00 + applicable tax
First Withdrawal Amount: $6,533.10
Any changes to your bank account which will affect our ability to withdraw
lease payments should be provided to us by telephone 30 days before the
first day of the month and confirming in writing. This will ensure that no
payment delays occur and avoid our assessment of late charges.
You are also responsible for paying property taxes that may be assessed
against this equipment. You will be notified in advance of the amount of
property taxes due and payment will be subsequently withdrawn from your
account per the terms of the lease.
If you have any questions, please don't hesitate to contact me directly at
the phone number listed above. Cisco Systems Capital Corporation is
looking forward to working with you.
Sincerely,
Melissa Struss
Lease Process Assistant
Enclosure
<PAGE>
CISCO SYSTEMS, INC.
7025 Kit Creek Road
PO Box 14987
Research Triangle Park, NC 27709
Tel: 800-553-6387 x22981
Fax: 919-472-2969
Date: 09/14/1998 PRICE QUOTATION
To: Network Technology Quote Number: 30165450-1-0
Scott Ference Total Price: $41,886.45
13747 Montfort Dr.
Dallas, TX 75240
Ph: 972-788-2988
Fax:
Product Produce Unit List Extended
Number Description Qty Price Discount Price
AS5300 AS5300 Dial Shelf 2 $10,000.00 29.00% $14,200.00
CAB-AC Power Cord, 110V 2 $0.00 $0.00
SF53CP-11.3.2N Cisco IOS AS5300 2 $2,700.00 29.00% $3,834.00
Series IP Plus
AS53-T148VOX 48 VOX DSPs, 2 2 $14,300.00 29.00% $20,306.00
VOX Carrier Cards,
and 1 Quad T1/PRI
Card
VC-SW-1.0 Firmware for AS53 2 $0.00 $0.00
-CC-VOX
MEM-16F-AS53 AS5300 System 2 $1,000.00 29.00% $1,420.00
Flash Upgrade
(from 8MB to
16MB)
MEM-8BF-52 AS5200 Boot Flash 2 $0.00 $0.00
Upgrade (from 4MB
to 8 MB)
AS53-AC-PWR AC Power Chassis 2 $0.00 $0.00
for the AS5300
CVM-NT-1.0 NT version of 1 $2,995.00 29.00% $2,126.45
Cisco Voice
Manager
Cisco Systems, Inc.-Confidential and Proprietary
The Science of Networking Networks
EXHIBIT 10.22
CISCO SYSTEMS CAPITAL CORP. MASTER LEASE NUMBER
5500 Wayzata Blvd., Suite 725
Golden Valley, MN 55416-1242 EQUIPMENT SCHEDULE
Tel. 800/928-2349 FAX 612/513-3299
EQUIPMENT SCHEDULE FOR MASTER LEASE AGREEMENT
The Equipment listed on this Equipment Schedule is subject to the
applicable Master Lease Agreement and all the conditions and terms stated
therein.
Equipment Location
13747 Montfort, #101 Dallas TX 75240 Dallas
Street Address City State Zip County
EQUIPMENT DESCRIPTION
Quantity Make/Model Serial Number
5 AS5300 AS5300 Dial Shelf
5 CAB-AC Power Cord, 110V
5 SF53CP-11.3.2N Cisco IOS AS5300
Series IP Plus
5 AS53-T1-48VOX 48 VOX DSPs, 2 VOX
Carrier Cards and 1 Quad T1/PRI Card
5 VC-SW-1.0 Firmware for AS53-CC-VOX
5 MEM-8BF-52 AS5200 Boot Flash Upgrade
(from 4MB to 8 MB)
5 AS53-AC-PWR AC Power Chassis for the
AS5300
5 MEM-16F-AS3 System Flash Upgrade
1 CVM-NT-1.0 NT Version Cisco Voice Manager
5 CON-SNT-AS5300 SNT Service AS53-XX, AS5300
all modem Quad T1/E1 PRI
PURCHASE OPTIONS __ Fair Market Value
__ Other ________________
The Purchase Option terms and conditions are listed in Section 7 of the
Master Lease Agreement
SALES TAX OPTIONS: __ Each lease payment is subject to sales tax
__ Total sales tax required in advance
__ Exempt Certificate Attached
(subject to local tax regulations)
LEASE TERM ____________ MONTHS
PAYMENT SCHEDULE
MONTHLY LEASE PAYMENT ____________/month*
(Excludes Applicable Taxes)
Automatic Bank Payments (ACH)
<PAGE>
ADVANCE PAYMENT ____________
(Includes Applicable Taxes)
REMAINING MONTHLY PAYMENTS _____________
(Excludes Applicable Taxes)
SECURITY DEPOSIT (If Any) _____________
LESSEE HAS READ AND IS SUBJECT TO THE CONDITIONS SET FORTH ON THE MASTER LEASE.
IN WITNESS WHEREOF LESSEE HAS HEREBY EXECUTED THIS NON-CANCELABLE LEASE
THIS ____ DAY OF __________ 200_.
NAME OF LESSEE NETVOICE LESSOR: SUNRISE LEASING CORPORATION
TECHNOLOGIES, INC.
SIGNED__________________DATE_____ SIGNED___________________________
NAME AND TITLE___________________ DATE_____________________________
EXHIBIT 10.23
Cisco Systems 5500 Wayzata Boulevard, Suite 725, Golden Valley, MN
January 26, 1999
Mr. Bill Bedri
NetVoice Technologies, Inc.
13747 Montfort, #101
Dallas, TX 75240
Re: Amendment #1 to LEASE AGREEMENT NO. 72003013-AC
Dear Mr. Bedri:
The above referenced lease agreement is subject to the changes noted
below. Please review these changes for accuracy, sign where indicated,
fax back to (612) 513-3299, and mail the original ink signed document to
my attention at the above address.
____ The Rental Terms of your lease have changed.
____ The Equipment Configuration on your lease has changed.
OLD TERMS NEW TERMS
Term: 24 Months Remaining Term: 24 Months
Payment Amount: $15,728.65/mo Payment Amount: $15,801.24/mo
Purchase Option: FMV Purchase Option: FMV
Equipment Amount: $380,866.00 Equipment Amount: $382,708.45
You have added the following to your lease:
1. Quantity (2) MEM-I/O-FLC20M Cisco 7200 I/O PCMCIA Flash Memory, 20MB
Option @ $390.50/ea. for a total of $781.00.
2. Quantity (1) WS-C1924-A 24-Port 10MB Switch W/2 100BaseTXPorts; Ent
Ed Upgradable @$1,061.45/ea.
Your monthly payment has been adjusted accordingly.
Sincerely, _______ Accepted and Acknowledged
Susan K. Vik ________________________________
PROGRAM MANAGER-ISP GROUP Bill Bedri
NetVoice Technologies, Inc.
<PAGE>
NETVOICE TECHNOLOGIES, INC. NetVoice Technologies
13747 Montfort Drive
Suite 101
Dallas, Texas 75240
Tel: 972-788-2988
Fax: 972-788-2995
Date: 12/29/1998 PURCHASE ORDER
To: Cisco Systems, Inc. Purchase Order: Cisco122998-0103
Susan K. Vik Quote Number: 49556
Program Manager ISP Group Total Price: $380,866.00
7036 Kit Creek Road Monthly Lease: $15,728.65
PO Box 14987 Advance Payment: $34,052.53
Research Triangle Park, NC 27709
Ph: 800-553-6387 X22981
Fax: 919-472-2969
_________________________________________________________________________
Product Unit List Extended
Number Product Description Qty Price Discount Price
_________________________________________________________________________
<PAGE>
CISCO SYSTEMS CAPITAL CORP. MASTER LEASE NUMBER
5500 Wayzata Blvd., Suite 725
Golden Valley, MN 55416-1242 EQUIPMENT SCHEDULE
Tel. 800/928-2349 FAX 612/513-3299
EQUIPMENT SCHEDULE FOR MASTER LEASE AGREEMENT
The Equipment listed on this Equipment Schedule is subject to the
applicable Master Lease Agreement and all the conditions and terms stated
therein.
Equipment Location
13747 Monfort, #101 Dallas TX 75240 Dallas
Street Address City State Zip County
EQUIPMENT DESCRIPTION
Quantity Make/Model Serial Number
See Cisco Quote $49556 for equipment descriptions
PURCHASE OPTIONS __ Fair Market Value
__ Other ________________
The Purchase Option terms and conditions are listed in Section 7 of the
Master Lease Agreement
SALES TAX OPTIONS: __ Each lease payment is subject to sales tax
__ Total sales tax required in advance
__ Exempt Certificate Attached
(subject to local tax regulations)
LEASE TERM ____________ MONTHS
PAYMENT SCHEDULE
MONTHLY LEASE PAYMENT ____________/month*
(Excludes Applicable Taxes)
Automatic Bank Payments (ACH)
ADVANCE PAYMENT ____________
(Includes Applicable Taxes)
REMAINING MONTHLY PAYMENTS _____________
(Excludes Applicable Taxes)
<PAGE>
SECURITY DEPOSIT (If Any) _____________
LESSEE HAS READ AND IS SUBJECT TO THE CONDITIONS SET FORTH ON THE MASTER
LEASE.
IN WITNESS WHEREOF LESSEE HAS HEREBY EXECUTED THIS NON-CANCELABLE LEASE
THIS ____ DAY OF __________ 200_.
NAME OF LESSEE NETVOICE LESSOR: SUNRISE LEASING CORPORATION
TECHNOLOGIES, INC.
SIGNED__________________DATE_____
SIGNED___________________________
NAME AND TITLE___________________
DATE_____________________________
EXHIBIT 10.24
AUTHORIZATION AGREEMENT FOR AUTOMATIC PAYMENTS
The ("Buyer") hereby authorizes and directs the Lessor and the Bank named
below to initiate variable entries to the checking account designated below
for the purposes of making payments due from the Lessee to the Lessor
pursuant to this Agreement. Lessee hereby represents and agrees that such
checking account is and will continue to be maintained primarily for
business purposes. Lessee further agrees that it will maintain at all
times sufficient balances in such account to allow Lessor and the Bank
named below to charge such account for the charges due from the Lessee
hereunder. Unless Lessee's check is otherwise enclosed, please enclose a
blank copy of Lessee's check for reference purposes.
DEPOSITORY NAME BRANCH LEASE/SCHEDULE
(FINANCIAL INSTITUTION)
_________________________________________________________________________
CITY STATE ZIP
_________________________________________________________________________
ABA NUMBER (9 DIGIT NUMBER ACCOUNT NUMBER
LOCATED BETWEEN : : ON
BOTTOM OF CHECK)
_________________________________________________________________________
NAMES ON ACCOUNT
_________________________________________________________________________
DATE SIGNATURE
_________________________________________________________________________
<PAGE>
CISCO SYSTEMS CAPITAL CORP. MASTER LEASE NUMBER
5500 Wayzata Blvd., Suite 725
Golden Valley, MN 55416-1242 EQUIPMENT SCHEDULE
Tel. 800/928-2349 FAX 612/513-3299
EQUIPMENT SCHEDULE FOR MASTER LEASE AGREEMENT
The Equipment listed on this Equipment Schedule is subject to the
applicable Master Lease Agreement and all the conditions and terms stated
therein.
Equipment Location
13747 Montfort, #101 Dallas TX 75240 Dallas
Street Address City State Zip County
EQUIPMENT DESCRIPTION
Quantity Make/Model Serial Number
2 Cisco 3640 4-Slot Modular Router
AC w/IP Software0
2 NM-IFE-TX 1-Port Fast Network Module (TX Only)
2 MEM3600-4U32Fs 4 to 32MB Flash Factory Upgrade
2 MEM3640-32U128D 32 to-128 MB DRAM Factory Upgrade
2 SF364A-11.217P Cisco 3640 IOS Enterprise Fea. Set
2 Cisco 7206 6-Slot Chassis, 1 AC Power Supply
2 MEM-NPE-128MB Cisco 7200 NPE 128MB DRAM Upgrade Kit
2 NPE-200 Cisco 7200 Network Processing Engine
2 PA-T3 1-Port T# Serial Fort Adapter w/T3 DSUs
2 C7200-I/O-FLC20M 7200 I/O PCMCLA Flash
Memory, 20MB Option
2 MEM-I/O-FLC20M 7200 I/O PCMCLA Flash Memory; 20MB Option
2 PWR-7200 AC Power Supply Option
2 PWR-7200/2 Dual AC Power Supply Option, 280W
2 SF72C-11.2.16 7200 Series IOS IP Only Fea Set
21 Cisco 2610 Ethenet Modular Router w/Cisco IOS IP Software
21 WLC-IDSU-TI 1-Port T/Frac. T1 DSU/CSU WAN Interface Card
21 SF26C-11.3.8T Cisco 2600 Series ISO IP
21 AS5301 Ethenet AS5300
15 AS53-T1-48 VOX 48VOX DSPs, 2 VOX CCs, &1 Quad T1/PRI Card
15 SF53CP-11.3.4N Cisco IOS 5300 Series IP Plus
1 PA-4T+ 4-Port Serial Part Adapter, Enhanced
3 WS-C1924-A 24-Port 10MB Switch w/2 100 Base TX Ports,
Ent Ed Upg
PURCHASE OPTIONS __ Fair Market Value
__ Other ________________
The Purchase Option terms and conditions are listed in Section 7 of the
Master Lease Agreement
SALES TAX OPTIONS: __ Each lease payment is subject to sales tax
__ Total sales tax required in advance
__ Exempt Certificate Attached
(subject to local tax regulations)
<PAGE>
LEASE TERM ____________ MONTHS
PAYMENT SCHEDULE
MONTHLY LEASE PAYMENT ____________/month*
(Excludes Applicable Taxes)
Automatic Bank Payments (ACH)
ADVANCE PAYMENT ____________
(Includes Applicable Taxes)
REMAINING MONTHLY PAYMENTS _____________
(Excludes Applicable Taxes)
SECURITY DEPOSIT (If Any) _____________
LESSEE HAS READ AND IS SUBJECT TO THE CONDITIONS SET FORTH ON THE MASTER LEASE.
IN WITNESS WHEREOF LESSEE HAS HEREBY EXECUTED THIS NON-CANCELABLE LEASE
THIS ____ DAY OF __________ 200_.
NAME OF LESSEE NETVOICE LESSOR: SUNRISE LEASING CORPORATION
TECHNOLOGIES, INC.
SIGNED__________________DATE_____ SIGNED___________________________
NAME AND TITLE___________________ DATE_____________________________
EXHIBIT 10.25
ADDENDUM TO LEASE 72003013-AE
-----------
MISDIRECTED INVOICE AGREEMENT BETWEEN
SUNRISE LEASING CORPORATION
AS "LESSOR"
AND
NETVOICE TECHNOLOGIES, INC.
AS "LESSEE"
DATED: NOVEMBER 5, 1999
Pursuant to the aforementioned lease agreement by and between NETVOICE
TECHNOLOGIES, INC. as Lessee and Sunrise Leasing Corporation, (as Lessor);
Lessee and Lessor mutually agreed that the subject leased personal property
would be ordered by Lessor and purchased from the equipment vendor with
said vendor directly invoicing Lessor. In that, said Vendor erroneously
invoiced Lessee, said invoice has not been paid by Lessee but rather has
been forwarded to Lessor. It was not the intention of Lessee to acquire
any rights, title or interest in the subject equipment. Lessee waives any
rights, title and interest in and to the following personal property that
may have accrued to Lessee as a result of the aforementioned erroneous
invoicing and acknowledged that upon Lessor's remittance of payment in full
of said invoice, less charges for non-tangibles such as transportation,
installation and taxes which are the responsibility of Lessee, Lessor shall
take right, title and interest in said personal property as lawful owner:
LESSOR: SUNRISE LEASING CORPORATION LESSEE: NETVOICE TECHNOLOGIES, INC.
_____________________________________ __________________________________
BY:__________________________________ BY:_______________________________
TITLE:_______________________________ TITLE:____________________________
DATE:________________________________ DATE:_____________________________
<PAGE>
CISCO SYSTEMS CAPITAL CORP. MASTER LEASE NUMBER
5500 Wayzata Blvd., Suite 725
Golden Valley, MN 55416-1242 EQUIPMENT SCHEDULE
Tel. 800/928-2349 FAX 612/513-3299
EQUIPMENT SCHEDULE FOR MASTER LEASE AGREEMENT
The Equipment listed on this Equipment Schedule is subject to the
applicable Master Lease Agreement and all the conditions and terms stated
therein.
Equipment Location
13747 Montfort, #101 Dallas TX 75240 Dallas
________________________________________________________________
Street Address City State Zip County
Qty. MODEL #AND DESCRIPTION
- ---- ----------------------
20 AS53-CC-48VOXD High Density Voice Feature Card
w/48 Ch
PURCHASE OPTIONS __ Fair Market Value
__ Other ________________
The Purchase Option terms and conditions are listed in Section 7 of the
Master Lease Agreement
SALES TAX OPTIONS: __ Each lease payment is subject to sales tax
__ Total sales tax required in advance
__ Exempt Certificate Attached
(subject to local tax regulations)
LEASE TERM ____________ MONTHS
PAYMENT SCHEDULE
MONTHLY LEASE PAYMENT ____________/month*
(Excludes Applicable Taxes)
Automatic Bank Payments (ACH)
ADVANCE PAYMENT ____________
(Includes Applicable Taxes)
REMAINING MONTHLY PAYMENTS _____________
(Excludes Applicable Taxes)
SECURITY DEPOSIT (If Any) _____________
<PAGE>
LESSEE HAS READ AND IS SUBJECT TO THE CONDITIONS SET FORTH ON THE MASTER LEASE.
IN WITNESS WHEREOF LESSEE HAS HEREBY EXECUTED THIS NON-CANCELABLE LEASE
THIS ____ DAY OF __________ 200_.
NAME OF LESSEE NETVOICE LESSOR: SUNRISE LEASING CORPORATION
TECHNOLOGIES, INC.
SIGNED_________________ DATE_____ SIGNED_______________________
NAME AND TITLE___________________ DATE_________________________
EXHIBIT 10.26
CISCO SYSTEMS 5500 Wayzata Blvd, Suite 725, Golden, Valley, MN 55416
November 29, 1999
Mr. Garth Cook
NetVoice Technologies, Inc.
13747 Montfort, #101
Dallas, TX 75240
Re: Cisco Systems Capital Corporation lease for equipment
Dear Mr. Cook:
Enclosed, please find the following lease documents:
* Equipment Schedule AF
* Authorization Agreement for Automatic Bank Payments (ACH Form)
This lease is 24 Months in length with a 15% purchase option. Please
complete and sign the Equipment Schedule, and ACH Form and overnight, along
with the first and last payments in advance, in the amount of $58,240.66,
to my attention at the address above as soon as possible.
Thank you for this opportunity to do business with you. Please call me
with any questions 612/513-3216.
Sincerely,
Susan K. Vik
PROGRAM MANAGER ISP GROUP
<PAGE>
CISCO SYSTEMS CAPITAL CORP. MASTER LEASE NUMBER
5500 Wayzata Blvd., Suite 725
Golden Valley, MN 55416-1242 EQUIPMENT SCHEDULE
Tel. 800/928-2349 FAX 612/513-3299
EQUIPMENT SCHEDULE FOR MASTER LEASE AGREEMENT
The Equipment listed on this Equipment Schedule is subject to the
applicable Master Lease Agreement and all the conditions and terms stated
therein.
Equipment Location
13747 Montfort, #101 Dallas TX 75240 Dallas
________________________________________________________________
Street Address City State Zip County
Qty. MODEL #AND DESCRIPTION
- ---- ----------------------
SEE ATTACHED CISCO QUOTE #6AY-63U
FOR EQUIPMENT LIST AND PRICING
PURCHASE OPTIONS __ Fair Market Value
__ Other ________________
The Purchase Option terms and conditions are listed in Section 7 of the
Master Lease Agreement
SALES TAX OPTIONS: __ Each lease payment is subject to sales tax
__ Total sales tax required in advance
__ Exempt Certificate Attached
(subject to local tax regulations)
LEASE TERM ____________ MONTHS
PAYMENT SCHEDULE
MONTHLY LEASE PAYMENT ____________/month*
(Excludes Applicable Taxes)
Automatic Bank Payments (ACH)
ADVANCE PAYMENT ____________
(Includes Applicable Taxes)
REMAINING MONTHLY PAYMENTS _____________
(Excludes Applicable Taxes)
SECURITY DEPOSIT (If Any) _____________
<PAGE>
LESSEE HAS READ AND IS SUBJECT TO THE CONDITIONS SET FORTH ON THE MASTER LEASE.
IN WITNESS WHEREOF LESSEE HAS HEREBY EXECUTED THIS NON-CANCELABLE LEASE
THIS ____ DAY OF __________ 200_.
NAME OF LESSEE NETVOICE LESSOR: SUNRISE LEASING CORPORATION
TECHNOLOGIES, INC.
SIGNED_________________ DATE_____ SIGNED_______________________
NAME AND TITLE___________________ DATE_________________________
<PAGE>
Cisco Systems, Inc.
251 O'Connor Ridge Blvd.
Suite 100
Irving, TX 75038
Ph: 972-887-2886
Fax: 972-887-2899
PRICE QUOTATION
Date: 10/15/99 Quote Number: 6AY-63U
To: Dave McEvilly Total Price: $629,999.99
NetVoice Technologies
Ph:
Fax:
Unit
Product Produce Qty List Disc Extended
Number Description Price Price Disc % Price
___________________________________________________________________________
AS5300- AS5300 VoIP
96VOIP-A Gateway-96
Voice Channels/
4T1+,IOS IP +
S53CVP 21 $50,000.00 40.000% $629,999.99
AS53-AC-PWR AC Power Chassis
for the AS5300 21 $0.00 0.000% $0.00
CAB-AC Power cord, 110V 42 $0.00 0.000% $0.00
FOB Point: Origin Payment Terms: Net 30
Ship Date: Installation: Available on
Request and
Billable
Quote Valid Until: 10/27/1999 Warranty: 90 days
Notes: Signed: ___________________________
Gary Crapson
This price quotation does not constitute an offer by Cisco to sell
products, but is instead an invitation to issue a purchase order to Cisco
until the Quotation Valid date specified on this Price Quotation. Such a
purchase order will be subject to Cisco's standard procedures, terms, and
conditions for the acceptance of purchase orders. This order may be
subject to sales tax. VAT and freight charges even if not noted on this quote.
<PAGE>
AUTHORIZATION AGREEMENT FOR AUTOMATIC PAYMENTS
The ("Buyer") hereby authorizes and directs the Lessor and the Bank named
below to initiate variable entries to the checking account designated below
for the purposes of making payments due from the Lessee to the Lessor
pursuant to this Agreement. Lessee hereby represents and agrees that such
checking account is and will continue to be maintained primarily for
business purposes. Lessee further agrees that it will maintain at all
times sufficient balances in such account to allow Lessor and the Bank
named below to charge such account for the charges due from the Lessee
hereunder. Unless Lessee's check is otherwise enclosed, please enclose a
blank copy of Lessee's check for reference purposes.
DEPOSITORY NAME BRANCH LEASE/SCHEDULE
(FINANCIAL INSTITUTION)
_________________________________________________________________________
CITY STATE ZIP
_________________________________________________________________________
ABU NUMBER (9 DIGIT NUMBER ACCOUNT NUMBER
LOCATED BETWEEN : : ON
BOTTOM OF CHECK)
_________________________________________________________________________
NAMES ON ACCOUNT
_________________________________________________________________________
DATE SIGNATURE
_________________________________________________________________________
EXHIBIT 10.27
INTER-TEL
TOTALEASE PROGRAM
LEASE AGREEMENT
OFFICE ADDRESS
______________________________________________________________________
CITY COUNTY
_______________________________________________________________________
STATE ZIP
_______________________________________________________________________
LOCATION OF EQUIPMENT IF OTHER THAN BELOW:
_______________________________________________________________________
CITY COUNTY
_______________________________________________________________________
EQUIPMENT DESCRIPTION:
AS STATED ON ATTACHED SCHEDULE 1
_______________________________________________________________________
Dear Lessee: We have written this lease in plain language because we want
you to fully understand its terms. Please read your copy of this lease
carefully and feel free to ask us any questions you may have about it. We
use the words YOU and YOURS to mean the lessee indicated below. The words
WE, US, and OUR refer to the lessor indicated below. The words THE BRANCH
refer to the branch office of Inter-Tel Communications, Inc. or Inter-Tel
DataCom, Inc. with which you have entered into a separate agreement to
install and maintain the equipment you are leasing. The words BRANCH
AGREEMENT refer to the agreement between you and the Branch for the
installation, maintenance and warranty of the equipment.
1. LEASE AGREEMENT: You agree to lease from us and we agree to
lease to you the equipment listed above, which you agree will be used for
business purposes only. You promise to pay us the sum of all of the rental
payments indicated on the schedule above and/or attached, which sum can be
calculated by multiplying the number of payments times the payment amount
indicated on the schedule(s). You may request, from time to time, that
additional equipment be added to this agreement. If we agree to add the
equipment, you agree that the additional equipment added will become a part
of this agreement and also agree to pay the additional rental payments due.
<PAGE>
2. ORDERING EQUIPMENT: You request that we arrange delivery of the
equipment to you by the Branch. If the equipment has not been delivered,
installed, and accepted by you within forty-five (45) days from the date
that we ordered the equipment, we may on ten (10) days written notice to
you terminate the lease and our obligations to you. In the event that we
have issued a purchase contract or order for the equipment, you agree that
the purchase order or contract is acceptable to you. If you have entered
into a purchase contract for the equipment, you agree to assign it to us,
effective when we pay for the equipment.
3. NO WARRANTIES: We are leasing the equipment to you "AS IS." WE
MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF FITNESS FOR
A PARTICULAR PURPOSE OR ORDINARY USE IN CONNECTION WITH THIS LEASE. If the
Branch or anyone else has made a representation or warranty to you as to
the equipment or any other matter, you agree that any such representation
or warranty shall not be binding on us, nor shall the breach of such
relieve you of, or in any way affect, any of your obligations to us under
this lease. If the equipment is not satisfactory for any reason, you shall
make your claim only against the Branch and you shall nevertheless pay us
all rent payable under this lease. So long as you are not in default under
any of the terms of this lease, we transfer to you any warranties made to
us by the Branch, manufacturer or supplier. You understand and agree that
only an authorized officer of Inter-Tel Leasing, Inc. is authorized to
waive or change any term or condition of this lease and no change is valid
until and unless it is reduced to writing and signed by both parties. YOU
AGREE THAT, REGARDLESS OF CAUSE, YOU WILL NOT ASSERT ANY CLAIM WHATSOEVER
AGAINST US FOR LOSS OF PROFITS YOU EXPECTED TO MAKE OR ANY OTHER DIRECT,
SPECIAL OR INDIRECT DAMAGES. You acknowledge that we shall not be
responsible for any service, repairs, or maintenance of the equipment. We
are not a party to the Branch Agreement or any other agreements between you
and the Branch, and even if you have a dispute regarding any maintenance or
service provided by the Branch, you will continue to pay us all payments
due under this lease and all schedules to this lease. We agree to use our
best efforts, on your behalf, to cause the Branch to perform its
obligations under the Branch Agreement.
4. NON-CANCELABLE LEASE: Except as provided by the upgrade
provision contained in the Branch Agreement, this lease cannot be cancelled.
<PAGE>
ACCEPTED: INTER-TEL LEASING, INC. LESSEE (FULL LEGAL NAME)
6955 Portwest Drive, #190
Houston, Texas 77024
By:_______________________________ _____________________________
Title:____________________________ _____________________________
Billing Address
_____________________________
City County State Zip
_____________________________
Phone Date
_____________________________________________________________________
Delivery and Acceptance of Equipment
I HEREBY CERTIFY, ON BEHALF OF THE
LESSEE, THAT ALL OF THE EQUIPMENT (THE UNDERSIGNED CERTIFIES
TO BE LEASED HAS BEEN DELIVERED THAT THE EQUIPMENT SHALL BE
AND INSTALLED. THE INSTALLATION USED FOR BUSINESS PURPOSES
AND ALL OTHER WORK NECESSARY FOR AND AGREES THAT NO MODIFICA-
THE EQUIPMENT'S USE HAS BEEN TION TO THIS LEASE WILL BE
SATISFACTORILY COMPLETED. THE EFFECTIVE UNLESS MADE IN
DELIVERY DATE IS THE DATE THIS WRITING AND SIGNED BY BOTH
ACCEPTANCE IS SIGNED. PARTIES.)
Signature:_________________________ Signature:____________________
Print Name:________________________ Print Name:___________________
PERSONAL GUARANTY
I guarantee that the lessee will make all payments and pay all the other
charges required under this lease when they are due and will perform all
other obligations under this lease fully and promptly. I also agree that
you may make other arrangements with the lessee and I will still be
responsible for those payments and other obligations. You do not have to
notify me if the lessee fails to meet all of its obligations under the
lease. If lessee fails to meet all of its obligations, I will immediately
pay in accordance with the default provisions of the lease all sums due
under the original terms of the lease and will perform all other
obligations of the lessee under the lease. I will reimburse you for all
the expenses you incur in enforcing any of your rights against the lessee
or me, including attorney fees. If this is a corporate guaranty, it is
authorized by the Board of Directors of the guaranteeing corporation. If
this is a partnership guaranty, it is authorized under the partnership
agreement. THIS GUARANTY SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
TEXAS. I AGREE AND CONSENT THAT THE COURT OF THE STATE OF TEXAS, HARRIS COUNTY
<PAGE>
OR ANY FEDERAL DISTRICT COURT HAVING JURISDICTION IN THAT COUNTY SHALL HAVE
JURISDICTION AND SHALL BE PROPER LOCATION FOR THE DETERMINATION OF DISPUTES
ARISING UNDER THIS LEASE. I agree and consent that you may serve me by
registered or certified mail, which will be sufficient to obtain
jurisdiction. I waive trial by jury in any action between us.
_______________________________________________________________________
PERSONAL GUARANTOR SIGNATURE PRINT NAME SOCIAL SECURITY # DATED
_______________________________________________________________________
PERSONAL GUARANTOR SIGNATURE PRINT NAME SOCIAL SECURITY # DATED
<PAGE>
SCHEDULE 2
TO
BRANCH AGREEMENT FOR
INSTALLATION, MAINTENANCE AND WARRANTY OF EQUIPMENT
AXXESS 4.3 (60 MONTHS)
This Schedule 2 more particularly identifies the Customer's options
relating to Add-On, Equipment Rates, Renewal Options, Upgrade Capability,
and Transfer Cost for System Relocation once signed by the Customer becomes
a part of the Agreement between NetVoice Technologies, LLC and the branch.
I. Add-On Equipment Rates
----------------------
A. The following listed equipment can be added at any time
during the term of the Agreement at the following rates and
as long as such additions are within the system's
capacities.
EQUIPMENT MONTHLY RATES
--------- -------------
B. There will be no additional charges for installation if the
equipment is added to the present office location. Any
detached locations will be priced with additional labor and
material charges in effect at the time of such installation.
C. The Customer agrees that Add-On Equipment orders are subject
to credit approval, and the Customer cannot be in default of
this Agreement or the Lease Agreement.
II. Renewal Options
---------------
A. The Customer has the option to renew this Agreement for an
additional term of three (3) years which period of time
shall be defined as the Renewal Option Term.
B. The monthly rental price for the Renewal Option Term shall
be equal to fifty percent (50) of the rental rate in effect
at the time of the renewal including supplements.
C. The Maintenance and Warranty provisions contained in this
Agreement shall continue in full force and effect during the
Renewal Option Term.
<PAGE>
D. The Add-On Equipment Rates as specified in Article I hereof
shall be applicable for the duration of the Renewal Option Term.
E. The election of a Renewal Option Term by the Customer is
subject to and contingent upon the election and option of
Inter-Tel to purchase and pay for any purchase option due on
said equipment.
III. Upgrade Capability
------------------
The Customer is hereby granted the option to upgrade its system
with Inter-Tel with no financial penalties or cancellation
charges. Inter-Tel guarantees that the upgraded system rates
will be the same as offered to other customers with the same
system. In order to qualify, the Customer hereby agrees to the
following provisions:
A. At least twenty-four (24) payments shall have been received
by Inter-Tel on this Agreement
B. The central operating unit and substantially all of the
station equipment of the current system must be replaced
and/or upgraded with either (1) a large capacity unit, or
(2) an equal or larger capacity unit relative to a newer
technology providing additional features and capabilities.
In either event, the number of installed telephones or phone
lines must be equal or greater than the current system.
C. The Customer cannot be in default on this Agreement, and the
upgrade is subject to credit approval.
IV. Transfer Cost for System Relocation
-----------------------------------
The Customer is hereby granted the right to have Inter-Tel
perform the labor of relocating the system at a thirty-percent
(30%) discount of the standard published rate of Inter-Tel in
effect at the time of relocation of the system.
________________________________________
Signature by Customer for Identification
<PAGE>
SCHEDULE 1
EQUIPMENT ITEMIZATION AND SYSTEM FEATURES
FOR: NETVOICE TECHNOLOGIES, LLC
--------------------------
1 MF-Rated 50-Unit PAL Software
1 AXXESS Main Control Node
1 AXXESS Power Supply (9 AMP)
1 AXXESS CPU 112 with Memory & Software
1 AXXESS V4.3 CPU 112 Software
1 AXXESS V4.3 Database Programming Software
1 AXXESSORY Talk 4 Pork 110 Hour
1 Digital Station Card (16 Stations per Card)
1 Central Office Loop Start Card (4 Lines per Card)
1 Central Office Daughter Card (4 Lines per Card)
1 System Options Card
1 Digital Signal Processor Chip
1 PC Data Port Module (PCDPM)
1 Modem Data Port Module (MDPM)
1 DSP PAL for 2 Digital Signal Processor's
9 Standard Telephone with Display
1 Executive Telephone
1 PC Wall-Mount Shelf
1 Modem Kit
1 AXXESS Owner's Guide
9 AXXESS Standard Terminal User Guide
1 AXXESS Executive Terminal User Guide
APPROVED AND ACCEPTED BY
___________________________
Customer
___________________________
Inter-Tel
___________________________
Date
EXHIBIT 10.28
INTER-TEL.NET NETWORK AGREEMENT
This Agreement is made and entered into this 1st day of Jul, 98 between:
NetVoice Technologies
- ------------------------------------------------------------------------
- ------------------------------------------------------------------------
(hereinafter referred to as "Customer") and Inter-Tel.net, Inc., a Nevada
corporation with offices at 120 N. 44th Street, Suite 200, Phoenix,
Arizona, 85034-1822, U.S.A. ("Inter-Tel").
Whereas, Inter-Tel has established a network which enables
telecommunications over Internet Protocol ("IP") data networks
("Inter-Tel.net") with Inter-Tel.net software, hardware and related
components, and
Whereas, Customer desires to interconnect into Inter-Tel.net with its own
network for the provision of services to the general public; and
Whereas, both parties desire to reduce to writing their agreement for the
interconnection of each party's Servers into the Network.
Now, therefore, in consideration of the mutual covenants hereunder, the
parties hereto agree as follows:
1.0 APPOINTMENT AS INTER-TEL.NET PROVIDER
Inter-Tel hereby authorizes the Customer to interconnect with the
Inter-Tel.net network enabling the customer to transmit IP data network
traffic; subject to the terms and provisions of this Agreement.
1.2 DEFINITIONS
1.2.1 AGREEMENT - "Agreement" shall mean this Network Agreement,
including the attached Schedules.
1.2.2 CONFIDENTIAL INFORMATION - "Confidential Information" shall
mean information belonging to either party and delivered to the other
Party which is deemed proprietary and confidential and belonging to the
Party delivering the Confidential Information. In the event confidential
information is required to be disclosed pursuant to a court order is
required by any governmental authority or agency, prompt written notice
of such order or requirement shall be given to the disclosing party and
the receiving party shall fully cooperate with the disclosing party,
using its best efforts to maintain the confidentiality of the
information, including but not limited to, seeking protective orders from
the court or governmental authority.
1.2.3 CUSTOMER NETWORK - "Customer Network" shall mean the IP data
network constructed, owned and/or operated by Customer.
1.2.4 INTER-TEL.NET - "Inter-Tel.net" shall mean the Internet
Protocol (IP) data network constructed, owned, and operated by
Inter-Tel.net, Inc.
<PAGE>
1.2.5 LOCAL EXCHANGE CARRIER - Company certified to provide public
switched telephone network (PSTN) services. Both incumbent and the
emerging competitive LEC's are included.
1.2.6 NPA/NXX - NPA refers to the area code and NPA/NXX refers to
the area code and prefix (the first six (6) digits) in the long distance
dialing sequence.
1.2.7 PLANNED SERVICE OUTAGE - "Planned Service Outage" shall mean
any Service Outage caused by scheduled maintenance or planned
enhancements or upgrades to the Network.
1.2.8 POINT-OF-PRESENCE - (POP) - The physical location where the
Inter-Tel.net Network interfaces with the customer or a local access
vendor.
1.2.9 PUBLIC SWITCHED TELEPHONE NETWORK - The public network
operated by common carriers for switched telephone services.
1.2.10 REGIONAL BELL OPERATING COMPANIES (RBOCs) - The regional
operating companies formed at divestiture from AT&T, to provide local
access to the public.
1.2.11 SERVICE INTERCONNECTION DATE - The later of the date
requested in the Service request by Customer or the date that Service has
been installed and tested by Customer use.
1.2.12 SERVICE OUTAGE - Shall mean a degradation in Service well
below the industry standards, occurring in Inter-Tel.net's network,
excluding: (i) Planned Service Outages; or, (ii) periods of degradation
due to causes beyond the reasonable control of Inter-Tel.net.
1.2.13 SERVICE REQUEST - Shall mean an order for Service
transmitted to Inter-Tel.net via facsimile, online, or mail. Service
requests will be remitted in accordance with Inter-Tel.net order format.
2.0 FEES
Both parties acknowledge and agree for the payment of fees by the
party incurring same including origination, termination, settlement and
other provider fees as set forth on Schedule A attached hereto and made a
part hereof for all purposes. Customer agrees that Inter-Tel shall have
the right to amend the fees set forth on Schedule A with thirty (30)
day's notice.
3.0 SERVICE
3.1 Network Coverage - Inter-Tel.net shall add to or delete from
network coverage, NPA's or NPAs/NXXs and/or other usage designations, at
its sole discretion. Data may be passed by Inter-Tel.net for termination
through Inter-Tel.net, or through the network of the Local Exchange
Carrier ("LEC(s)") serving the area in which the data is to be
terminated, or through long distance carriers.
2
<PAGE>
3.2 Prices, Volume and Term Discounts, Service Availability -
Usage, recurring charges, volume discounts, installation and change order
charges, minimum use commitments, and service availability for such
Services are listed on Schedule A.
3.3 Operations Support - Customer agrees to provide seven (7) day,
twenty-four (24) hours a day support for their network.
4.0 FORMAT
All data passed between the parties shall be in format compatible
with and approved in advance by Inter-Tel.
5.0 UPDATED USAGE ESTIMATES
Customer shall provide monthly updates, 30 days in advance in the
format set forth on Schedule C, attached hereto, which will include usage
estimates or information which may impact established trends in usage
patterns. Customer acknowledges and agrees that any significant
increases in usage not forecasted by the Customer may jeopardize the
ability of Inter-Tel.net to meet the demand.
6.0 NETWORK BLOCKING CAPABILITY
Based on the Customer submitted estimates of monthly minutes of use
and busy hour minutes of capacity measurements for such terminating
location, in the format set forth on Schedule C, Inter-Tel shall have
reasonable blocking ability for excess usage above maximums, or at its
discretion, switch out the excess minutes over the PSTN at the agreed
prices in Schedule A. Customer shall have responsibility to provide an
updated usage forecast with each Service Request.
7.0 NETWORK MANAGEMENT CONTROLS
When call volumes increase substantially and facility segments
cannot be accommodated in a timely manner, Inter-Tel.net may invoke
network management controls to reduce the probability of excessive
network congestion. Substantial call volume increases are changes which
exceed the recorded busy day, busy hour minutes of capacity for the
preceding 60 day, seasonally adjusted period. For new Service Requests,
the estimated busy day, busy hour minutes will be the basis for
identifying substantial call volumes.
8.0 NETWORK CONNECTION
8.1 All connections to Inter-Tel.net are made through dedicated
data connections between the Customer POP and Inter-Tel.net with
sufficient bandwidth to insure call quality. All facilities will be
designated using standard usage engineering principles.
8.2 In order to insure call quality, the end to end turnaround time
as measured by the industry standard ping should not exceed 100 milliseconds.
8.3 Customer agrees that all VocalNet servers shall be covered
under a software maintenance agreement with Inter-Tel to insure that all
updates, upgrades and maintenance are consistent with Inter-Tel.net standards.
3
<PAGE>
9.0 INSTALLATION, SUPPORT AND MAINTENANCE OF SERVERS
Unless otherwise contracted with Inter-Tel, Customer agrees that it
shall be responsible for the installation, support and maintenance of all
customer owned Servers and related products including, but not limited
to, the fees and rental charges for colocation space and provision of
dedicated lines and circuits necessary for the interconnection of the
Customer network and related equipment and services into Inter-Tel.net up
to and including the interface interconnection point. Customer further
acknowledges appointment of Inter-Tel as agent as set forth on Schedule
B, to obtain for Customer any dedicated line services as are agreed by
the parties to be necessary for the installation, support and maintenance
of the Customer's Servers with the Network.
9.1 Service Outage - In the event a service outage occurs within
Inter-Tel.net, Inter-Tel shall act promptly to repair the outage.
Customer shall be relieved of minimum purchase requirements in a pro-rata
fashion determined by the length of the service outage. In the event a
service outage occurs within the Customer Network, customer shall act
promptly to repair the outage.
9.2 Planned Service Outage - Customer shall, when practical, be
notified at lease five (5) days in advance of any Planned Service Outage.
10.0 USAGE MEASUREMENT
10.1 Start of Usage Measurement - For all originating usage,
measurement will commence when Inter-Tel.net sends the first supervisory
signal, and answer supervision is received by Inter-Tel.net from the
terminating end user, indicating that the termination end user has answered.
10.2 Termination Of Usage Measurement - For all terminating usage,
measurement will end when Inter-Tel.net receives disconnect supervision
from the terminating end LEC switch and when the appropriate IP call
control release messages is received or sent by Inter-Tel.net.
11.0 TERM AND TERMINATION
This agreement shall be in effect for a period of one (1) year from
the date hereof, and shall continue automatically for one year periods
thereafter unless and until terminated by either party giving the other
not less than sixty (60) days written notice before the expiration date.
In the event of a breach of contract, this agreement shall be terminated
by ten (10) days written notice by one party to the other and failure to
note a breach of any provision of this Agreement by such party, or in the
event either party ceases to function as a going business, becomes
insolvent, commits an act of bankruptcy, is adjudged a bankrupt, makes a
general assignment for the benefit of creditors, or if a receiver is
appointed for all or substantially all of its property. At the
termination of any service or of this Agreement, the Parties will, within
five (5) business days, disconnect the interconnection circuit(s)
provided between the parties.
4
<PAGE>
12.0 PAYMENT AND REVIEW PROCESS
12.1 Payment Due Date - Customer agrees to pay all charges as set
forth on Schedule A.
12.2 Disputes - Customer shall have 60 days from invoice date to
dispute any charges in writing. Written disputes should be addressed to
the Vice President, Finance and sent by registered mail or courier (such
as Federal Express or United Parcel Service). All charges, whether or
not disputed in writing and received by the due date, are considered
payable. The Parties shall provide one another with reasonably requested
information for invoice validation including, but not limited to, the
number of minutes of use.
12.3 Review Process - Inter-Tel.net will review any amounts disputed
in writing within (30) business days after receipt of the written
dispute. If Inter-Tel.net determines that the Customer was billed in
error, a credit for the amount billed incorrectly will appear on the next
invoice. If the Customer does not agree with Inter-Tel.net's assessment,
both parties agree to resolution through binding arbitration within
thirty (30) days of Inter-Tel.net's determination that the bill was
issued properly.
12.4 Arbitration - Notwithstanding anything to the contrary herein,
any dispute arising pursuant to or in any way related to this Agreement
or the transactions contemplated hereby shall be settled by arbitration
at a mutually agreed upon location in Phoenix, Arizona; provided,
however, that nothing in this Section shall restrict the right of either
party to apply to a court of competent jurisdiction for emergency relief
pending final determination of a claim by arbitration in accordance with
this Section. All arbitration shall be conducted in accordance with the
rules and regulations of the American Arbitration Association, in force
at the time of any such dispute, by a panel of three (3) arbitrators, one
(1) selected by Inter-Tel.net, one (1) selected by Customer, and the
third (3rd) selected by the other two (2) arbitrators. Each party shall
pay its own expenses associated with such arbitration, including the
expenses of any arbitrator selected by such party and 50% of the expenses
of the third arbitrator. The decision of the arbitrators, based upon
written findings of fact and conclusions of law, shall be binding upon
the parties; and judgment in accordance with that decision may be entered
in any court having jurisdiction thereof. In no event shall the
arbitrators be authorized to grant any punitive, incidental or
consequential damages of any nature or kind whatsoever.
12.5 Suspension of Service - If customer does not make payment,
Inter-Tel.net may suspend or cancel Service and terminate this Agreement
after Inter-Tel.net has given Customer written notice and ten (10) days
to cure the nonpayment.
12.6 Monthly Purchase Minimums - Customer agrees to pay the greater
of actual usage, or minimum usage which is computed by multiplying the
total estimated usage times the billing rate for such usage on Schedule A.
12.7 Billing Increments - Billing increments will be as set forth on
Schedule A.
5
<PAGE>
13.0 EQUIPMENT AND INSTALLATION
13.1 Inter-Tel.net shall provide, maintain, repair, operate and
control the Inter-Tel.net owned facilities necessary for service up to
the interconnection point where the Customer network interfaces with
Inter-Tel.net.
13.2 Neither Party shall adjust, align, or attempt to repair, the
other Party's equipment except as expressly agreed to in advance in
writing by the other Party. Neither Party's equipment shall be removed
or relocated by the other Party.
14.0 WARRANTIES AND NETWORK STANDARDS
14.1 Each party represents and warrants to the other Party that it
has the right to provide the service specified herein, and that it is an
entity, duly organized, validly existing and in good standing under the
laws of its origin, with all requisite power to enter into and perform
its obligations under this Agreement in accordance with its terms.
14.2 Inter-Tel.net represents and warrants to Customer that all
services rendered by it hereunder shall be designed, produced, installed,
furnished and in all aspects provided and maintained in conformance and
compliance with applicable federal, state and local laws, administrative
and regulatory requirements and any other authorities having jurisdiction
over the subject matter of this Agreement that were in effect at the time
of such design.
14.3 Inter-Tel represents and warrants to Customer that it shall at
all times, comply with then current industry standards. The parties
agree that if any party, in its sole reasonable discretion, determines
that an emergency action is necessary to protect its own Network, the
party may block any signals being transmitted over its Network by the
other party whose signals do not meet the specifications included herein.
The parties further agree that none of their respective obligations to
one another under this Agreement shall be affected by any such blockage
except that the party affected by such blockage shall be relieved of all
obligations to make payments for charges relating to such service only
during the period of time of such blockage and that no party shall have
any obligation to the other party for any claim, judgement or liability
resulting from such blockage.
14.4 THERE ARE NO AGREEMENTS, WARRANTIES OR REPRESENTATIONS,
EXPRESSED OR IMPLIED EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE OR USE, EXCEPT THOSE EXPRESSLY SET
FORTH HEREIN.
15.0 WARRANTY AND INDEMNIFICATION BY CUSTOMER.
Customer warrants and agrees that all equipment owned and operated
by Customer and interconnected with Inter-Tel.net shall be compatible
with Inter-Tel.net and in compliance with any specific standards that may
be additionally set forth on Schedule A. Customer further agrees to be
responsible for any upgrades or enhancements necessary for its network to
remain compatible with the Inter-Tel.net Network. Customer further
warrants and agrees, that if Inter-
6
<PAGE>
Tel terminates usage over the network of Customer, that Customer will
install and maintain all of Customer's network in accordance with
industry standards for IP network usage in order to insure the quality of
transmission usage equal to that of Inter-Tel.net.
16.0 CONFIDENTIAL OBLIGATION
16.1 Neither party hereto shall disclose any confidential
information ("Confidential Information") received from the other party
nor use such information for purposes other than performance of this
Agreement without getting prior written consent from the other party.
The Confidential Information shall be the information: (i) disclosed in
writing and marked "Confidential", and (ii) if disclosed verbally, shall
be confirmed in writing within seven (7) days following such disclosure,
and (iii) any information contained in this Agreement and Schedules.
16.2 The following information shall not be regarded as the
Confidential Information:
(i) information which, at the time of disclosure hereunder, was or
thereafter becomes in the public domain through no willfulness or
misconduct of the recipient;
(ii) information which, prior to disclosure hereunder, was already
in the recipient's possession either without limitation on
disclosure to others or substantially becoming free of such
limitation;
(iii) information obtained by the recipient from a third party
having an independent right to disclose this information; or
(iv) information which is independently developed by the recipient.
16.3 Information shall not be deemed confidential in the following
cases: the information was previously known to the receiving party free
of any obligation to keep it confidential at the time of its disclosures
by the disclosing party; the information is or became publicly known
through no wrongful act of the disclosing party; the information is
rightfully received by the receiving party from a third party having no
direct or indirect and/or confidential obligation to the disclosing party
with respect to such information; the information is disclosed by the
disclosing party to the public; or the information is independently
developed by an employee, agent or contractor of the receiving party.
17.0 INDEMNITIES
Each Party agrees to indemnify, defend and hold harmless the other
Party from and against: (i) claims for libel, slander, infringement of
copyrights or unauthorized use of trademark, trade name, or service mark
arising out of the indemnifying Party's use or provision of Service; (ii)
claims for patent infringement arising from the use of the facilities or
equipment supplied by the indemnifying Party's containing or connecting
facilities to use Inter-Tel.net; (iii) claims of third parties for
damages and/or personal injuries arising out of the negligence or willful
act or omission of the indemnifying Party or its agents, servants,
employees, contractors representatives; and (iv) claims of third parties,
including patrons or Customers of the indemnifying Party, arising out of,
resulting from, or related to the indemnifying Party's resale or
attempted resale of the Service(s) under this Agreement.
18.0 SURVIVAL CLAUSES
7
<PAGE>
The provisions of Paragraph 15, 16, and 17 shall survive the
termination or expiration of this Agreement.
19.0 DEFAULT
19.1 A Party shall be deemed in default of this Agreement upon the
occurrence of any one or more of the following events: (i) the filing of
bankruptcy or making a general assignment for the benefit of creditors
which is not dismissed or set aside within sixty (60) days of filing;
(ii) a Party violates any applicable laws, statutes, ordinances, codes or
other legal requirements with respect to the Service and such
violation(s) are not remedied within ten (10) business days after written
notice thereof; or (iii) a Party fails to perform its obligations under
this Agreement and such nonperformance is not remedied within ten (10)
days in the case of payment obligations and otherwise within thirty (30)
days after notice thereof.
19.2 Inter-Tel shall grant customer thirty (30) days after any
written notice of default herein required other than payment obligations,
to cure any default. Should Customer fail to cure the default within the
time, Inter-Tel shall be entitled to suspend Service and/or terminate
this Agreement. Should Inter-Tel terminate this Agreement due to default
by Customer, all amounts owned Inter-Tel shall become immediately due and
payable.
19.3 A party shall be deemed to be in default if, without thirty
(30) days written notice, any act or failure to act by the party with
respect to its network causes or allows to be caused a cessation of
operations of that network in such a manner that the other party cannot
terminate usage over the defaulting party's network for a period in
excess of twelve (12) hours. In such event, the defaulting party shall
be responsible for the non defaulting party's losses to the extent
necessary to terminate such usage over any other viable transmission
means for said thirty day period.
20.0 AMENDMENT
No amendment of this Agreement shall bind either party hereto unless
reduced to writing and signed by authorized representatives of the
respective parties.
21.0 LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, OR TO ANY OTHER
ENTITY OR INDIVIDUAL, FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR
PUNITIVE DAMAGES OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION,
ANY LOST PROFITS OR REVENUES, REGARDLESS OF THE FORESEEABILITY THEREOF.
Customer acknowledges and agrees that any product hardware or
software may or may not have been approved for sale of use in foreign
counties. The Customer agrees that any use or resale of the product into
a foreign country could require registry approval of such country.
Customer accepts full responsibility for complying with any and all of
such requirements or regulations for such product(s) prior to
distribution or use. Customer further agrees to indemnify and hold
harmless Inter-Tel from and against all claims, liability, damages and
expenses arising
8
<PAGE>
from any failure of Customer to obtain required approvals and/or to
comply with any and all such regulations prior to distribution or use in
a foreign country.
22.0 ENTIRE AGREEMENT
This Agreement embodies the entire agreement and understanding
between the parties hereto relative to the subject matter hereof and
there are no understandings, agreements, conditions or representations,
oral or written, expressed or implied, with reference to the subject
matter hereof that are not merged herein or superseded hereby.
23.0 JURISDICTION AND VENUE
This Agreement shall be construed and enforced in accordance with
the laws of the State of Arizona. Should a dispute occur between the
parties hereto arising out of or in relation to implementation of this
Agreement, the parties hereto agree that venue of the dispute shall be in
Maricopa County, Arizona and that substantive and personal jurisdiction
shall exist over the parties by virtue of the fact that payments are due
in Phoenix, Arizona.
24.0 FORCE MAJEURE
Except as to the payment of monies pursuant to this Agreement, each
party to this Agreement shall be excused from performance hereunder for
any period of time and to the extent that it is prevented from performing
any of its obligations pursuant hereto, in whole or in part, as a result
of delays caused by the other party or by an act of God, fire, explosion,
transportation, contingencies, unusually severe weather, quarantine,
restriction, epidemic, natural catastrophe, war, civil disturbance, acts
of the government of the United States or of any State or governmental
agency or official thereof, court order, labor dispute or shortage,
third-party nonperformance, or other cause, events or circumstances
beyond its reasonable control, and such nonperformance shall not be a
default under this Agreement nor a ground for termination of this
Agreement as long as the excused party makes reasonable efforts to
remedy, if and to the extent reasonably possible, the cause for such
nonperformance.
25.0 TAXES
Each Party shall be fully responsible for the payment of any and all
ad valorem, property, franchise, gross receipts, excise, access, bypass,
sales or other local, state or federal taxes or charges applicable to
property owned by it and for taxes on its net income. Customer agrees to
any sales, use, gross receipts, excise, access, bypass or other local,
state and federal taxes or charges applicable to the provisioning or sale
of the Service provided by Inter-Tel.net. Any taxes to be paid by
Customer shall be separately stated on the invoice. Prices shall not
include any taxes for which Customer has furnished a valid exemption
certificate.
26.0 REGULATIONS
Each Party represents that it is not aware of any facts that would
justify a complaint to the Federal Communications Commission or any state
regulatory authority concerning the prices, terms or conditions of the
transactions contemplated by this Agreement. The Parties also agree that
in the event a decision by a telecommunications regulatory authority at
the federal, state, or local level necessitates modifications in this
Agreement, the Parties will negotiate in good faith to modify this
Agreement in light of such decision.
9
<PAGE>
27.0 MISCELLANEOUS
27.1 This Agreement does not appoint either Party as the agent or
legal representative of the other Party and does not create a partnership
or joint venture between Customer and Inter-Tel.net. Neither Party shall
have any authority to make any agreement for or bind the other Party in
any manner whatsoever except as set forth on Schedule B. This Agreement
confers no rights of any kind upon any third party.
27.2 The failure of either Party to give notice of default or to
enforce or insist upon compliance with any of the terms of conditions of
this Agreement shall not be considered the waiver of any other term or
condition, or of future compliance of the terms of this Agreement.
27.3 If any part of any provision of this Agreement or any other
agreement, document or writing given pursuant to or in connection with
this Agreement shall be invalid or unenforceable under applicable law,
such part shall be ineffective to the extent of such invalidity only,
without in any way affecting the remaining parts or provisions of this
Agreement.
27.4 Inter-Tel.net may terminate this Agreement without liability
if: (i) the facilities used to provide Service are taken by exercise of
condemnation or eminent domain; or (ii) the Inter-Tel.net facilities
shall, in Inter-Tel.net's reasonable judgment, be made inoperable and
beyond economically or technologically feasible repair.
27.5 Acceptance of this Agreement is contingent upon signature by a
representative of Inter-Tel only authorized to execute this Agreement.
27.6 This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, and when taken together shall
constitute one document.
27.7 In the event that suit is brought and an attorney is retained
by either Party to enforce the terms of this Agreement or to collect any
money as due hereunder or to collect any money damages for breach hereof,
the prevailing party shall be entitled to recover, in addition to any
other remedy, the reimbursement for reasonable attorney's fees, court
costs, costs of investigations and other related expenses incurred in
connection therewith.
27.8 The parties agree not to disclose any of the items and
conditions of this Agreement without the express written consent of the
other party, except as may be required by law or governmental rule or
regulations, or to establish either party's rights under this Agreement,
provided, however, that if one party seeks to disclose for reasons not
requiring the other party's consent, that party will limit the disclosure
to the extent required, will allow the other party to review the
information disclosed and will apply where available, for
confidentiality, protective orders and the like. Any review under this
paragraph will not be construed to make the reviewing party responsible
for the content of any disclosure.
28.0 ASSIGNMENT
10
The Customer may not assign this Agreement without the prior written
consent of Inter-Tel, which shall not be reasonably withheld. Any such
assignment of this Agreement by Customer without consent shall be null
and void.
29.0 NOTICES.
Notices under this Agreement shall be in writing and delivered by
certified mail, return receipt requested, to the persons whose names and
business addresses appear below and such notice shall be effective on the
date of receipt, or refusal of delivery, by the receiving Party.
If to Inter-Tel.net (except billing disputes)
Attention: President
INTER-TEL.NET
120 North 44th Street
Suite #200
Phoenix, AZ 85034-1822
Billing Disputes:
Attention: Vice President, Finance
INTER-TEL.NET
120 N. 44th Street
Suite #200
Phoenix, AZ 85034-1822
If to Customer:
___________________________
___________________________
___________________________
Service Request or Modifications or Cancellations:
Attention: Director, Customer Service
INTER-TEL.NET
120 N. 44th Street
Suite #200
Phoenix, AZ 85034-1822
30.0 FINAL AGREEMENT
This Agreement sets forth the entire understanding of the parties
and supersedes any and all prior agreements, arrangements or
understanding related to the Services described herein, and no
representation, promise, inducement or statement of intention has been
made by either party, which is not embodied herein. Inter-Tel shall not
be bound by any agent's or employee's representations, promises or
inducements not set forth herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives on the day and year
first above written.
11
<PAGE>
INTER-TEL.NET NETVOICE TECHNOLOGIES
----------------------------
Customer
By: /s/ By: /s/ BILL BEDRI
--------------------------- --------------------------
Its Director of Sales Inter-Tel.Net Its Bill Bedri
--------------------------- --------------------------
Date 7/1/98 Date 7/1/98
--------------------------- --------------------------
/s/ John Abbott
Vice President
October 21, 1998
12
EXHIBIT 10.29
19480 SW Mohave Ct., Tualatin, OR 97062
Phone: (503) 612-9860 Fax: (503) 692-3518 http://www.signupserver.net
---------------------------
MASTER SERVICES AGREEMENT
This Master Services Agreement (the "Agreement") is entered into as of
_____________, ______ ("the Effective Date") between SignupServer, Inc.
("SignupServer Inc.-a GJT company-"), and NetVoice identified below
("Client"). For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agrees as follows:
1. PURPOSE OF AGREEMENT. Network Operation Services will be performed by
SSI for Net Voice Technologies. SSI has a custom label ISP program and
proprietary software for controlling multiple ISP's. SSI will provide
services for Client, so that Client will be able to market Virtual ISP
services under their name through SSI. SSI will setup and run services for
custom labeled ISP's that NetVoice allows on the network.
2. SERVICE INTERRUPTIONS. SSI shall not be liable for failure or delay
in performing its obligations hereunder if such failure or delay is due to
circumstances beyond its reasonable control, including, without limitation,
acts of any government body, war, insurrection, sabotage, embargo, fire,
flood, strike or other labor disturbance, interruption or delay in
transportation, unavailability of interruption or delay in
telecommunications or third party services, failure of third party software
or inability to obtain raw materials, supplies, or power used in or
equipment needed for provision of the Services. SSI will not be liable for
any damages for loss of service including complications occurring for the
faltering and method.
3. USER CONTENT AND CONDUCT. Client is solely responsible for the
content and any posting, data or transmissions using the Services (the
"Content"), or any other use of the Services by client or by any person or
entity Client permits to access the Services (a "Ser"). Client represents
and warrants that neither it nor any User will use the services for
unlawful purposes (including, without limitation, infringement of copyright
or trademark, misappropriation of trade secrets, wire fraud, invasion of
privacy, pornography, obscenity, defamation, and illegal use,
transportation or sale of tobacco, controlled substance and firearms), or
to interfere with, or disrupt, other, network users, network services or
network equipment. Disruptions include, without limitation, distribution
of unsolicited advertising or chain letters, repeated harassment of other
network users, wrongly impersonating another user, falsifying one's network
identity for improper or illegal purposes, sending unsolicited mass
e-mailings, propagation of computer viruses, and using the network to make
unauthorized entry to any other machine accessible location via the
network. SSI may suspend or terminate Services immediately, without prior
notice to Client. If SSI believes, in good faith, that Client or a User is
utilizing the services for any such illegal or disruptive purpose (SPAM
policy is the policy that is given to us by the network. Each ISP needs to
adhere to each of these network policies). Client shall defend, indemnify,
and hold harmless SSI from and against all liabilities, judgments, claims,
damages, settlements, expenses and costs (including reasonable attorneys'
fees and litigation expenses) arising out of or relating to any and all
claims by any person relating to use of the Services, including, but not
limited to, use of Services without consent of the Client.
<PAGE>
4. PRICING AND PAYMENT TERMS.
4.1 Filtering Center Pricing, Minimum Payments:
There will be no setup fee required for the filtering center. Pricing
determined by minimum customer commitments. Pricing per user and minimum
customer monthly commitments are as follows, with a three-month ramp-up:
User Pricing:
Under 25k .59 per user
25k to 50k .55 per user
50k to 200k .47 per user
100k to 200k .35 per user
200k and up .29 per user
MINIMUM MONTHLY PRICING:
3500 customer minimum month one
7000 customer minimum month two
1000 customer minimum month three
13000 customer minimum month four
NOC Finances:
We will require a setup fee of $35,000 to outfit and configure a NOC, and
a base operations fee of $15,000 a month for services. This base fee will
be cut to $7,500 when customers levels reach 50k and will be completely
removed when a 100k customer base level is reached. We will require a
setup fee for no less than $1,000 for every ISP that we set up with
automation. A "per head" fee will also be assessed that includes
automation, email, personal web space, authentication for users, and
database management. The "per head" fee are as follows:
Under 50,000 .53 per user
50,000-100,000 .46 per user
100,001-500,000 .31 per user
500,001-1,000,000 .23 per user
1,000,001-2,000,000 .16 per user
2,000,001 and up .12 per user
4.2 PAYMENT TERMS. The full amount of the setup fee will be required to
start any services by SSI. Thirty days after the NOC is up, base payment
will be due. Every month after, the base plus the "per head" fee will be
due. The recurring billing date shall be the day that the NOC is in place,
and that will establish the day of the month for reoccurring bills. For
accounts that are paid by credit cards, Client authorizes SSI to charge
recurring billing on the recurring billing date, until Client gives written
notice otherwise to SSI or until the expiration or termination of a Service
Order. Accounts that pay by check (limited to U.S. bank checks) will be
faxed and mailed an invoice on the recurring billing date any payment is
due immediately. SSI reserves the right to charge Client any sales, use,
excise, and a valorem, gross receipts, or any other tax or fees now
imposed, directly or indirectly, by any government authority or agency with
respect to the Services.
4.3 PRICING DISPUTES. Client must notify SSI in writing of any disputed
charge within 30 days of the date of the billing for such charges. If Client
<PAGE>
does not notify SSI within that time period, Client has waived any right to
dispute such amounts, either directly or as a set-off, recoupment for
defense in any action or efforts to collect amounts due to SSI.
4.4 COLLECTIONS. All accounts more than 30 days past due will be charged
interest from the due date of the lessor of (i) 1.5% per month on the past
due amount: or (ii) the highest legal rate of interest. SSI may suspend,
interrupt, or terminate Services on any account that is past due by more
than thirty (30) calendar days, by disabling services. All accounts that
have not been paid in full may be sent by SSI to a collection agency. The
Client is responsible for paying all costs of collections, including, but
not limited to reasonable attorneys' fees and where lawful, collection
agency fees. All accounting issues should be addressed to SSI at
[email protected].
5. SUPPORT.
5.1 SSI shall provide Client with support services as follows; helping
ISP's with setup, and availability for questions regarding the services
they are performing. We will be doing limited support to the ISP owner
that needs help on the services that SSI supplies.
5.2 EXCLUSIONS. SSI will not be responsible for customers of Client, if
they have misused the service and if they have caused a malfunction in
SSI's service due to an error on their part. SSI may choose to help such
customers for a programming fee to be determined case by case.
5.3 CLIENT'S DUTIES. Client shall document and promptly report all errors
or malfunctions of service.
6. TERM AND TERMINATION.
6.1 TERM. The term of this Agreement shall commence on the Effective Date
and continue until terminated in accordance with this Agreement. The term
of a Service Order shall be a one year term agreement. The term of a
Service Order shall automatically renew unless either party provides the
other with written notice of termination one month prior to the renewal
date reflected in the Service Order.
6.2 TERMINATION UPON DEFAULT. As referred to in Section 6.1, SSI may
terminate this Agreement and any or all Service Orders, within its sole
discretion, if Client fails to pay (and SSI has not actually received) any
amounts due within fifteen (15) days after the due date. For other
breaches of this Agreement, either party may terminate this Agreement, and
Service, as applicable, if the breaching party fails to correct the default
within forty-five (45) days after written notice.
6.3 EFFECTS OF TERMINATION. Not withstanding termination of this
Agreement and Service Orders, SSI shall be entitled to payment in full of
all amounts that may be due to it from Client. In addition, all other
rights and obligations of the parties shall cease upon termination of this
Agreement.
7. CONFIDENTIAL INFORMATION. Confidential Information shall mean all
information identified by a party ("Disclosing Party") to the other party
("Receiving Party"), which if in writing labeled as confidential or if
disclosed orally, is reduced to writing within fifteen (15) days, and
labeled as confidential. Confidential Information shall remain the sole
property of
<PAGE>
the Disclosing Party. Except for the specific rights granted by this
Agreement, the receiving party shall not use any Confidential Information
to any third party without the written consent of Disclosing Party (except
to consultants who are bound by a written agreement with receiving Party to
maintain confidentiality). Confidential Information shall exclude
information (i) available to the public other than a breach of this
Agreement; (ii) rightfully received from a third party not in breach of an
obligation of confidentiality; (iii) independently developed by Receiving
Party without access to Confidential Information; (iv) known to receiving
Party at the time of disclosure; or (v) produced in compliance with a court
order. Receiving Party shall give reasonable notice to Disclosing Party
that Confidential Information is being sought by a third person, so as to
afford an opportunity to limit or prevent such disclosure Confidential
Information to Disclosing Party upon request.
8. LIMITATION OF LIABILITY. SSI's liability (including, for purpose of
this agreement of this paragraph only, any of it's employees, agents, or
representatives), to Client (either directly or as a third party defendant
in any action or proceeding) for any claim arising out of or relating to
this Agreement or Service Orders or the provision of any Services under
Service Orders (including, without limitation maintenance and support)
shall be limited to the amount of fees paid by Client to SSI under this
Agreement within one year proceeding that date Client contends its claim
arose. In no event shall SSI be liable for any loss of data, loss of
profits, cost of cover, or any other specials, incidental, consequential,
indirect or punitive damages, however caused and regardless of theory of
liability. This limitation will apply even if SSI has been advised of, or
is aware of, the possibility of such damages.
9. MISCELLANEOUS.
9.1 INDEPENDENT CONTRACTOR. The relationship of SSI and Client under this
Agreement is that of the independent contractors not partners, joint
ventures, or co-owners as participants. Neither party has authority to
contract for or bind the other.
9.1 NOTICES. Any notice hereunder shall be in writing and shall be given
by registered, certified or express mail, or reliable overnight courier
(such as FedEx) addressed to the addresses in this Agreement, or by
facsimile, Notice shall be deemed to be given upon the earlier of actual
receipt or three (3) days after it has been sent, properly addressed and
with postage prepaid. Either party may change its address for notice by
means of notice to the other party given in accordance with this Section.
9.3 GOVERNING LAW AND FORUM. This Agreement shall be governed and
interpreted according to the internal laws of the Commonwealth of Oregon,
excluding choice of law provisions. For all disputes arising out of
related to this Agreement or Service Orders, the parties irrevocable
consent to the exclusive jurisdiction of the Circuit Court of Multnomah
County and the United States District Court for Portland, Oregon. ALL SUCH
ACTIONS WILL BE TRIED BY THE COURT SITTING WITHOUT A JURY AND THE PARTIES
IRREVOCABLY WAIVE THEIR RIGHTS TO TRIAL BY JURY. Clients addresses for the
purposes of service of process shall be the address designated for notices
in this Agreement. In connection with all actions which SSI is awarded
amounts due from Client, SSI shall be awarded (either in that action or by
way of separate action) its costs and expenses of litigation (including
reasonable attorneys' fees), through trial and appeal.
<PAGE>
9.4 ADVERTISING. SSI may include Client's name and contact information in
directories of SSI service subscribers for the purpose of promoting the use
of the services by Client's generally. SSI will not use Client's name or
other identifying information in any other advertising or promotion
materials, without prior written consent of Client, which may not be
unreasonably withheld.
9.5 INDEMNIFICATION. Client shall defend, indemnify, and hold harmless
SSI from and against all liabilities, judgments, claims damages,
settlements, expenses and cost (including reasonable attorneys' fees and
litigation expenses) arising out of or relating to any breach of this
agreement or Service by Client. Client and SSI will promptly notify each
other upon receipt of any 3rd party claim or legal action arising out of
relating to this Agreement or Service Orders.
9.6 ENTIRE AGREEMENT AND WAIVER. This Agreement and the Service,
constitute the entire agreement between SSI and Client with respect to the
subject matter hereof. All prior agreements, representations, and
statements with respect to such subject matter are superseded. Any failure
of either party to exercise or enforce its rights under this Agreement or
Service Orders shall not act as a waiver of subsequent breaches.
9.7 SEVERABILITY. In the event any provision of this agreement is to be
determined to be unenforceable in full, that provision will be enforced to
the maximum extent permissible under applicable law, and the other
provisions of this Agreement will remain in full force and effect.
9.8 NON-SOLICITATION. During the term of this Agreement and for a period
of one (1) year thereafter, Client shall not thereby substantially alter
technical parameters of the Services.
10. MODIFICATIONS. This Agreement may be modified only by further
writing, executed by both parties. This Agreement contains no special
provisions, except those written below (if none, write "NONE"):
___________________________________________________________________________
___________________________________________________________________________
11. NOTICES. All notices hereunder shall be given at the following addresses:
SIGNUPSERVER INC. ______________________________
Company Name
By:__________________________ By:___________________________
Title:_______________________ Title:________________________
Date:________________________ Date:_________________________
<PAGE>
NETVOICE AUTHORIZATION AGREEMENT
NetVoice Technologies, Inc. ("NetVoice") its affiliates, associates and
subsidiary corporation, herewith authorize Sign Up Server ("SSI") as an
independent contractor for identifying and prospecting to ________________
for the purpose of providing Internet, VoIP, unified messaging, or CLEC
services to ________________ "Transaction").
Fees for Internet services acquired via SSI to _____________ will be as
follows:
A contingent fee will be payable to SSI upon the closing of a Transaction
with _______________. Such contingent fee will be based on a per
subscriber sign up fee for service provided by NetVoice paid for by
__________________ in connection with the Transaction.
The total amount of the contingent fee shall be calculated from the
following schedule on the total Consideration:
Number of Total Subscribers X $.35 = Contingent Fee Per Month
The contingent fee set forth above will be due and paid at the time of
payment from ______________________.
Fees for other services (VoIP, Unified Messaging, CLEC) will be decided
upon delivery of prospect opportunity from SSI
This Agreement may be terminated by either party upon 30 days prior written
notice provided, however, that _________________ contingent fee obligation
shall survive this Agreement insofar as any pending Transaction with a
Prospect is concerned for a period of 12 months from the date of
termination hereunder. Contingent fee will continue for any signed
agreement for service with ________________ for the duration of service
agreement between NetVoice and ____________________.
AGREED TO AND ACCEPTED THIS _________ DAY OF __________________.
______________________________Name
NetVoice Technologies, Inc.
______________________________Signature
______________________________Name
Sign Up Server
______________________________Signature
EXHIBIT 10.30
LEASE AGREEMENT
STATE OF TEXAS
COUNTY OF DALLAS
THIS AGREEMENT, entered into this 10th day of March, 1998, between:
LANDLORD
Montfort Park Office Building herein designated as Landlord, and
TENANT
NetVoice Technologies, LLC herein designated as Tenant.
LEASED PREMISES
Landlord, in consideration of covenants and agreements to be performed
by Tenant and upon terms and conditions hereinafter stated, does hereby
lease to Tenant suite number(s) 101 on floor(s) One of the building known
as the Montfort Park Office Building, located at 13747 Montfort Drive
(hereinafter called the "Leased Premises") on a tract of land situated in
the City of Dallas, State of Texas, as described in Exhibit A attached
hereto. The number of square feet contained in the Leased Premises is
approximately 2021 square feet.
4. TERM
For term of Thirty six months, beginning on March 23, 1998 and ending
on March 31, 2001, to be continuously used and occupied during term of this
Lease by the Tenant for no other purpose than:
5. USE
_____________________________________________________________________.
This is conditioned upon faithful performance by Tenant of the following
agreements, covenants, rules, and regulations, herein set out and agreed to
by Tenant.
6. BASE RENTAL
In consideration of this Lease, Tenant promises to pay Landlord at
office of Landlord, in Dallas, Texas, the sum of One Hundred Ten Thousand
and Thirteen Dollars ($110,013.00) in lawful money of the United State of
American, payable in monthly amounts of Three Thousand and Thirty One
Dollars and Fifty Cents ($3031.50), in advance, without demand, on the
first day of each and every calendar month during term thereof, provided,
however, that the first three such monthly rental payments shall be due
upon execution of this Lease. The base rental stated herein shall be
subject, however, to adjustment as provided in Section 7 of this Lease.
Should the term of this Lease begin on a day other than the first day of a
calendar month or terminate on a day other than the last day of a calendar
month, the rent for such partial month shall be proportionately reduced.
All rent and sums provided to be paid under this Lease shall be paid to
Landlord at the address stated in section 38 of this Lease.
<PAGE>
7. BASE RENTAL ADJUSTMENT
The Base Rental hereunder payable shall be adjusted from time to time
in accordance with the following provisions:
A. As used herein:
(a) "Base Costs" shall have the same meaning as defined in Paragraph
8 below.
(b) "Base Year" shall mean the calendar year 1998.
(c) "Tenants" Proportionate Share" shall mean a fraction of which the
numerator is the rentable area of the Demised Premises and the
denominator is the total rental area of the Building. For the
purposes of this Lease the rental area of the Demised Premises
and of the building shall be deemed to be 2021 square feet and
78,134 square feet, respectively, and Tenant's Proportionate
Share may be expressed as a percentage (i.e. 2.6%).
B. If the Basic Costs for any calendar year subsequent to the Base
Year shall be greater than the Basic Costs for the Base Year, Tenant shall
pay as additional rent for such subsequent calendar year a sum equal to
Tenant's Proportionate Share of which the Basic Costs for such subsequent
calendar year are greater than the Basic Costs for the Base Year (which
amount is hereinafter called the "Basic Costs Payment"). Should this Lease
terminate prior to the expiration of a calendar year, the Basic Costs
Payment shall be prorated to the date of such termination and shall be
payable on, or as when ascertained after such termination. Tenant's
obligation to pay the Basic Costs Payment shall survive the termination of
this Lease.
C. On or before January 1 (or as soon thereafter as possible) of
each calendar year, Landlord shall furnish to Tenant a written statement of
Landlord's estimate of the Basic Costs for that current calendar year. At
the monthly rent payment next following Tenant's receipt of such statement,
and on each subsequent monthly rent payment in that current calendar year,
Tenant shall pay to Landlord as additional rent an amount equal to 1/12 of
Tenant's Proportionate Share of the amount by which the estimated Basic
Costs for such subsequent calendar year are greater than the Basic Costs
for the Base Year.
D. On or before April 1 (or as soon thereafter as possible) of each
calendar year, Landlord shall render to Tenant a comparative statement
("Statement") showing the Basic Costs for the Base Year, the Basic Costs
for the preceding calendar year, the estimated Basic Costs Payment made by
the Tenant for the preceding calendar year pursuant to paragraph (C) above,
and the balance of the Basic Costs Payment, if any, which shall be
immediately due and payable from the Tenant to the Landlord for the
preceding calendar year, indicating thereon in reasonable detail the
computation of such Basic Costs Payment. If Tenant's estimated Basic Costs
Payment shall exceed the actual Basic Costs Payment for the preceding year,
Landlord shall credit the excess payment to Tenant.
8. BASIC COSTS DEFINED
<PAGE>
"Basic Costs" as used herein shall consist of all operating expenses
of the Building and shall consist of all expenditures by Landlord to
maintain all facilities as may be determined by Landlord to be necessary or
beneficial for the operations of the Building and all related parking
facilities (the "Complex"). All operating expenses shall be determined in
accordance with generally accepted accounting principles which shall be
consistently applied. The term "operating expenses" as used herein shall
mean all expenses, costs, and disbursements (but not replacement of capital
investment items nor specific costs especially billed to and paid by
specific tenants) of every kind and nature which Landlord shall pay or
become obligated to pay because of or in connection with the ownership and
operation of the Complex, including, but not limited to, the following:
(a) Wages, salaries, and fees of all personnel engaged in the
operation, maintenance, leasing, or security of the Complex and
personnel who may provide traffic control relating to ingress and
egress from the parking areas for the Building to the adjacent
public streets. All taxes, insurance, and benefits relating to
employees providing these services shall also be included.
(b) All supplies and materials used in the operation and maintenance
of the Complex.
(c) Cost of all utilities for the Complex.
(d) Cost of all maintenance, janitorial, and service agreements for
the Complex and the equipment therein, including alarm service,
window cleaning, and elevator maintenance.
(e) Cost of all insurance relating to the Complex, including the cost
of casualty and liability insurance applicable to the Complex and
Landlord's personal property used in connection therewith.
(f) All taxes, assessments, and other governmental charges, whether
federal, state, county, or municipal, and whether they be by
taxing districts or authorities presently taxing the Premises or
by others, subsequently created or otherwise, and any other taxes
and assessments attributable to the Complex or its operation. It
is agreed that Tenant will be responsible for ad valorem taxes on
its personal property and on the value of leasehold improvements
to the extent that same exceed standard Building allowances.
LATE CHARGE
Tenant agrees to pay Landlord an additional amount of 5% of any sum
owing by Tenant under this Lease if such sum is not in Landlord's office or
postmarked by midnight of the 10th day following the date on which such sum
became due for the extra expenses involved in handling delinquent payments.
A $20.00 charge will be assessed by Landlord for every returned check.
Rent will be considered unpaid and lease in default if sufficient funds are
not available to cover payment.
9. SERVICE BY LANDLORD
Landlord agrees to furnish Tenant, while occupying premises, water -
hot, cold and refrigerated - at those points of supply provided for general
use of tenants; electric current for ordinary office use; heated and
refrigerated air conditioning in season, at such times as
<PAGE>
Landlord normally furnishes these services to all tenants of building, and
at such temperatures and in such amounts as are considered by Landlord to
be standard, such service on Saturdays, Sundays, and holidays to be
optional on part of Landlord; elevator and janitor service and electric
lighting service for all public areas and special service areas of building
in the manner and to the extent deemed by Landlord to be standard; but
failure to furnish or any interruption of these services, from any cause
whatsoever, shall not make Landlord liable for damage or loss to persons,
property, or Tenant's business; shall not be considered an eviction of
Tenant; shall not entitled Tenant to any refund or reduction of rent, and
shall not relieve Tenant from compliance with any term or provision of this
Lease. Landlord shall use reasonable diligence to repair promptly any
malfunction of the building improvements or facilities but Tenant shall
have no claim for rebate or abatement of rent for damages resulting from
such repair or from any interruptions in service occasioned by such repairs.
10. PAYMENTS AND PERFORMANCE
Tenant agrees to pay all rents and all other sums required to be paid
to Landlord at the times and in the manner provided in this Lease. The
obligations of Tenant to pay rent is an independent covenant and under no
circumstances shall Tenant be released from its obligation to pay rent.
11. REPAIRS AND RE-ENTRY
Tenant will maintain the Leased Premises in sound condition, at
Tenant's own expense, and shall repair, using only contractors approved by
Landlord, any damage done to the building by Tenant or Tenant's agents,
employees, and invitees. If Tenant fails to make such repairs promptly,
within 15 days of occurrence, Landlord shall have the option to make such
repairs itself and Tenant shall reimburse Landlord for the cost of repairs
on demand. Tenant shall not commit nor allow any waste or damage to be
committed on any part of the Leased Premises, and at the time of
termination of the Lease shall deliver the Leased Premises to Landlord in
good condition as existed on the date of Tenant's possession, ordinary wear
and tear excepted, and Landlord shall have the right to re-enter and resume
possession.
ASSIGNMENT - SUBLETTING
Tenant shall not assign or mortgage this Lease or any right under or
interest in it; allow same to be assigned by operation of law or otherwise;
sublet the Leased Premises or any part thereof, or allow any other person
to occupy or use the Leased Premises or any part thereof in place of Tenant
without the prior written consent of Landlord which shall not be
unreasonably withheld. Any such assignment, mortgage, or subletting
without Landlord's consent shall be void and shall, at Landlord's option,
constitute a breach of this Lease. Notwithstanding approval by Landlord of
a subletting or assignment by Tenant, Tenant, any guarantor of Tenant's
obligations under this Lease, and each assignee and subtenant shall remain
fully responsible and liable for payment of the rent required under this
Lease and for compliance with all of Tenant's other obligations. Consent
of Landlord to any assignment, mortgage, or subletting shall constitute
approval only as to that specific assignment, mortgage, or subletting, and
none other.
<PAGE>
13. ALTERATIONS AND ADDITIONS BY TENANT
Tenant shall make no alterations, additions, or improvements to the
Leased Premises, including the installation of trade fixtures, without the
prior consent of Landlord. Landlord may impose, as a condition of its
consent, requirements as to the manner in which, the times at which, and
the contractor by whom such work shall be done. All such alterations,
additions, or improvements, including trade fixtures, shall be made by
Tenant at its sole cost and expense, shall be part of the building, shall
become the property of the Landlord at the time they are placed on the
Leased Premises and shall be surrendered with the Leased Premises upon
termination of this Lease. Landlord may, however, by written notice to
Tenant at least 30 days prior to the end of the term, require Tenant to
remove all partitions, counters, railing, and the like installed by Tenant
and to repair any damage to the premises caused by such removal. Tenant
agrees to indemnify and hold Landlord harmless from and against any and all
claims for mechanics, and materialmen or other liens in connection with any
alterations, additions, or improvements, including trade fixtures. Tenant
will be required to escrow funds for all alterations and additions with
Landlord. In addition, Tenant shall furnish such waiver or waivers of lien
in form and with surety satisfactory to Landlord before commencing any work
on such alterations, additions, or improvements, including trade fixtures.
Landlord shall approve all contractors and subcontractors prior to
commencement of work. Landlord reserves the right to enter the Leased
Premises for the purpose of posting any notices of nonresponsibility as may
be permitted by law or desired by Landlord.
14. LEGAL USE - VIOLATIONS OF INSURANCE COVERAGE - NUISANCE
Tenant will not use the Leased Premises to be used for any purpose
other than that stated in this Lease or for any purpose which is unlawful;
disreputable; or extra-hazardous on account of fire, explosion, or other
casualty; nor permit any act which would increase the fire and casualty
insurance on the building or its contents. If insurance rates on the
building or its contents are increased due to action, conduct, or business
of Tenant, Tenant will pay such amount of insurance rate increase to
Landlord on demand. Tenant will not create a nuisance, interfere with,
annoy or disturb other tenants or Landlord, nor allow Tenant's agents,
employees, or invitees to do so.
15. LAWS AND REGULATIONS
Tenant will maintain the Leased Premises in a clean and healthful
condition and will comply with all laws, ordinances, orders, rules, and
regulations of any governmental authority having jurisdiction over the use,
conditions, or occupancy of the Leased Premises.
16. INDEMNITY AND LIABILITY
By moving into the Leased Premises, Tenant acknowledges that the
premises are received by it in a good state of repair, accepts the premises
as suitable for the purposes for which same are leased, waives any and all
defects of the premises and assumes all risks of damage to persons,
property, or Tenant's business. Landlord shall not be liable
<PAGE>
for any injury to person, damage, or property or to Tenant's business
arising from any acts or omissions of Landlord or from any cause whatsoever
except Landlord's gross negligence or willful wrong. Tenant will indemnify
and hold Landlord harmless from all suits, damages, liability, and expense
in connection with loss of life, bodily or personal injury or property
damage arising from any occurrence upon the Leased Premises, from use or
occupancy by Tenant of the Leased Premises, and from any acts or omissions
of Tenant, its agents, contractors, employees, or invitees. In addition,
if Landlord should, without fault on its part, be made a party to any
action by or against Tenant, Tenant shall pay all costs, expenses, and
reasonable attorney's fees of Landlord.
17. RULES OF BUILDING
Tenant, Tenant's agents, employees, and invitees will comply fully
with all building rules and regulations which are attached to this Lease
and made a part of its by this reference. Landlord may amend or change the
rules and regulations as it may deem advisable to provide for the safety,
protection, care, and cleanliness of the building, and Landlord shall give
Tenant a written copy of all such rules and amendments.
18. ENTRY FOR REPAIRS AND INSPECTION
Landlord and its agents and representatives may enter the Leased
Premises at any reasonable hour or at any time during emergencies to
inspect, clean and make repairs, alterations or additions as Landlord deems
necessary. Tenant will not be entitled to a reduction or an abatement of
rent due to Landlord's entry for such purposes.
19. CONDEMNATION
If the Leased Premises shall be taken or condemned in whole or in part
for public purposes, or transferred by agreement with or under threat of
condemnation, this Lease shall, at Landlord's option, terminate at the time
the title is transferred. Tenant shall not be entitled to any portion of
the condemnation award or of any compensation paid for any transfer by
agreement.
20. LANDLORD'S LIEN AND SECURITY INTEREST
In addition to the Landlord's lien provided by law, Landlord shall
have, and Tenant hereby grant to Landlord, a security interest in all
goods, furniture, fixtures, equipment, supplies, and other property of
Tenant on the Leased Premises, and all proceeds thereof, as security for
all Tenant's obligations under this Lease. Tenant shall have the right,
however, to sell its merchandise in the normal course of business free of
this lien and security interest. Tenant shall not remove any of such
property from the Leased Premises until it has fully satisfied its
obligations under this Lease. Any requirement of reasonable notice to
Tenant of Landlord's intention to dispose of any of Tenant's property to
enforce this security interest shall be satisfied by notice given in the
manner prescribed in Section 38 of this lease at least 5 days before the
time of such disposition. Any such sale to enforce Landlord's security
interest shall be deemed to have been a public sale conducted in a
commercially reasonable manner
<PAGE>
if held on the Leased Premises after advertisement of the time, place and
method of sale and a general description of the property commercially
reasonable manner if held on the Leased Premises after advertisement of the
time, place and method of sale and a general description of the property to
be sold in Dallas County, Texas daily newspaper for 5 consecutive days
prior to the sale, Landlord shall have all rights and remedies of a secured
party under law.
21. ABANDONED PROPERTY
All of Tenant's furniture, movable trade fixtures and personal
property not removed from the Leased Premises within 5 days of Landlord's
written request at the termination of this Lease, whether such termination
occurs by lapse of time or otherwise, shall be conclusively presumed
abandoned by Tenant, and Landlord may declare such property to be the
property of Landlord or may dispose of the property by any method it deems
advisable. Landlord's rights under this paragraph shall be cumulative of
its rights under Section 20 above.
22. HOLDING OVER
It is agreed and understood that any holding over by Tenant of the
Leased Premises at the termination of this Lease, whether such termination
occurs by lapse of time or otherwise, shall be construed as a tenancy at
will at a daily rental equal to 1/30th of an amount equal to twice the
monthly rental payable during the last month prior to termination of this
Lease. Such tenancy shall be subject to all other terms and provisions of
this Lease except any right of renewal.
23. CASUALTY
In the event the Leased Premises are damaged by fire or other casualty
covered by Landlord's insurance, Landlord shall repair the damage at its
expense within a reasonable time. If the damage cannot be repaired within
180 days (as estimated by an architect chosen by Landlord), this Lease may
be terminated by either Landlord or Tenant by written notice within 30 days
after receipt of the architect's damage certification and shall then
terminate as of the date such notice is given. Tenant shall pay all rent
due under this Lease, prorated on the date of such notice, and all other
sums owing at that time and shall immediately surrender possession of the
Leased Premises to Landlord.
However, if the damage can be repaired within 180 days or if it cannot
be repaired within such time but neither party exercises its option to
terminate this Lease, Landlord shall, within 30 days of such damage, begin
to repair the Leased Premises and shall proceed with reasonable diligence
to restore the Leased Premises in the same condition as existed immediately
prior to the occurrence of such casualty. The rent shall be abated during
the time the premises are unfit for occupancy. Landlord shall not be
required to rebuild, repair, or replace any of the furniture, equipment,
fixtures or other improvements which may have been placed on the Leased
Premises by Tenant. In the event any mortgagee under a deed of trust,
security agreement, or mortgage on the building should require that the
insurance proceeds be used to retire the mortgage debt, Landlord shall have
no obligation to rebuild and this Lease shall terminate upon
<PAGE>
written notice to Tenant. In the event the building is so badly damaged by
fire or other casualty, even though the Leased Premises may not be
affected, that Landlord decides, within 90 days after the destruction, not
to rebuild or repair the building (such decision being vested exclusively
in the discretion of Landlord), then in such event Landlord shall so notify
Tenant in writing and this Lease shall terminate as of the time such notice
is given, and the Tenant shall pay rent hereunder apportioned to the time
such notice is given and shall pay all other obligations of Tenant owing on
the date of termination, and Tenant shall immediately surrender the Leased
Premises to Landlord. Notwithstanding the foregoing provisions of this
Section 23, Tenant agrees that if the Leased Premises or any other part of
the building is damaged by fire or other casualty caused by the fault or
negligence of Tenant or Tenant's agents, employees, or invitees, Tenant
shall have no option to terminate this Lease, even if the damage cannot be
repaired within 180 days, and the rent shall not be abated or reduced befor
or during the repair period.
24. FORCE MAJEURE
In the event Landlord shall be delayed, hindered, or prevented from
the performance of any act required by this Lease by reason of acts of God;
acts of common enemies; fire, storm, flood, explosion or other casualty;
strikes, lockouts; labor disputes; labor troubles; inability to procure
materials; failure of power; strictive governmental laws or regulations;
riots; insurrection; war; settlement of losses with insurance carriers;
injunction; order of any court or governmental authority or other cause not
within the reasonable control of Landlord, then the performance of said act
shall be excused for the period of the delay and the period for the
performance of any such act shall be extended for a period equivalent to
the period of such delay.
25. INSURANCE
A. Subrogation: Landlord and Tenant hereby waive and release any
and all rights, claims, demands, and causes of action each may have against
the other on account of any loss or damage occasioned to Landlord or to
Tenant as the case may be, their respective businesses, properties, real
and personal, the Leased Premises or its contents, arising from any risk or
peril covered by any insurance policy carried by either party. Inasmuch as
the above mutual waivers will preclude the assignment of any aforesaid
claim by way of subrogation (or otherwise) to an insurance company (or any
other person), each party hereby agrees immediately to give to its
respective insurance companies written notice of the terms of said mutual
waivers, and to have said insurance policies properly endorsed if
necessary, to prevent the invalidation of said insurance coverage by reason
of said waivers. This provision shall be cumulative of Section 16.
B. Liability Insurance: Tenant shall procure and maintain
throughout the term of this lease a policy or policies of insurance, at its
sole cost and expense, insuring Tenant and Landlord against any and all
liability for property damage or injury to or death of a person or persons
occasioned by or arising out of or in connection with the use or occupancy
of the Leased Premises, the limits of such policy or policies to be in an
amount not less than $1,000,000 with respect to injuries to or death of any
one person, in an amount not less than
<PAGE>
$1,000,000 with respect to any one accident or disaster, and in an amount
not less than $100,000 with respect to all property in the premises damaged
or destroyed for which Tenant is legally liable. The limit of said
insurance shall not, however, limit the liability of the Tenant hereunder.
Tenant shall furnish evidence satisfactory to Landlord of the maintenance
of such insurance and shall obtain a written obligation on the part of each
insurance company to notify Landlord at least 10 days prior to cancellation
of such insurance.
26. TRANSFER OF LANDLORD'S RIGHTS
Landlord shall have the right to transfer and assign, in whole or in
part, all and every feature of its rights and obligations under this Lease
and in the building and property referred to in this Lease. In such event
Landlord shall be released from any further obligation under this Lease and
Tenant agrees to look solely to Landlord's successor for the performance of
such obligations.
27. BANKRUPTCY
Bankruptcy, insolvency, or inability to pay its debts as such become
due of Tenant or any guarantor of this Lease; filing by or against Tenant
or any guarantor in any court pursuant to any statute either of the United
States or of any State of a petition in bankruptcy or insolvency or for
reorganization, arrangement, or for the appointment of a receiver or
trustee of all or a portion of Tenant's or any such guarantor's property;
or the making by Tenant or any such guarantor of an assignment for the
benefit of creditors, shall constitute a default by Tenant under this
Lease. Tenant shall then immediately surrender the Leased Premises to
Landlord. If Tenant fails to do so, Landlord may expel or remove Tenant
and its property and retake possession of the Leased Premises without
liability for any prosecution or any claim for damages by reason of such
re-entry. Tenant further agrees to indemnify Landlord for all loss and
damage suffered by Landlord by reason of such termination, including loss
of rental for the remainder of the lease term.
28. DEFAULT
The following shall constitute events of Default under this Lease:
(a) Tenant's failure to pay rent and other sums payable by Tenant under
this Lease when due.
(b) Tenant's failure to comply with other provisions of this Lease.
(c) Tenant's desertion or abandonment of a substantial part of the Leased
Premises.
(d) Any transfer of property by Tenant the purpose of which might tend to
defeat the collection of rent due or to become due under this Lease.
29. REMEDIES
A. Upon the occurrence of any of the events of Default listed in
Section 28 above, Landlord shall have the option to take any one or more of
the following actions without notice or demand in addition to and not in
limitation of any other remedy permitted by law or by this Lease:
<PAGE>
(1) Terminate this lease, at which time Tenant shall immediately
surrender the Leased Premises to Landlord. If Tenant fails to do
so, Landlord may expel or remove Tenant and its property and
retake possession of the Leased Premises without liability for
any prosecution or any claim for damages by reason of such
re-entry. Tenant further agrees to indemnify Landlord for all loss
and damage suffered by Landlord by reason of such termination,
including loss of rental for the remainder of the lease term.
(2) Enter upon and take possession of the Leased Premises as Tenant's
agent without terminating the Lease and without liability for
prosecution of any claim for damages by reason of such re-entry,
and relet the Leased Premises as Tenant's agent and receive rent
therefor. Tenant agrees to pay Landlord on demand for any costs
incurred by Landlord through such reletting, including costs of
renovating or repairing the Leased Premises for a new tenant and
for any deficiency that may arise between amount of rent due for
the remainder of Tenant's lease and that received by Landlord
from reletting the Leased Premises. It is expressly understood
and agreed, however, that Landlord shall have no duty to relet
the Leased Premises and Landlord's failure to do so shall not
release or affect Tenant's liability for rent or damages.
(3) Landlord may do whatever Tenant is obligated to do under the
terms of this Lease and in order to accomplish this purpose
Landlord may enter the Leased Premises without liability for
prosecution of any claim for damages therefor. Tenant shall
reimburse Landlord for any expenses Landlord may incur in
effecting compliance with this Lease on Tenant's behalf. Tenant
further agrees that Landlord shall not be liable for any damages
which may result to Tenant from such action by Landlord, whether
caused by Landlord's negligence or otherwise.
B. Upon the occurrence of the default event stated in Section 28(a)
above, Landlord shall have the option, in addition to and not in limitation
of any other remedy permitted by law or by this Lease, of declaring the
entire amount of rent for the remainder of the lease term due and payable
immediately; without terminating the Lease, as liquidated and agreed
damages for the payment of costs and expenses that Landlord will incur in
regaining possession, restoring, or reletting the Leased Premises. It is
understood and agreed that the actual determination of Landlord's costs and
expenses is not feasible and that the amount of rent for the remainder of
the lease term represents a reasonable estimate of such costs.
30. NO WAIVER
No action by Landlord or its agents shall constitute an acceptance of
an attempted surrender of the Leased Premises and no agreement to accept
such a surrender of the Leased Premises shall be valid unless in writing.
Re-entry of the Leased Premises by Landlord shall not constitute an
election by Landlord to terminate this Lease
<PAGE>
unless Landlord so notifies Tenant in writing. Acceptance of rent by
Landlord following the occurrence of an event of default shall not waiver
such default, nor shall the receipt by Landlord of rent from any assignee,
subtenant or occupant of said premises other than Tenant be deemed a waiver
of Section 12 of this Lease. Landlord's waiver of any default or breach of
the terms of this Lease (including any violation or failure to enforce the
Building Rules attached hereto) or failure by Landlord to enforce one or
more of the remedies provided herein upon such default or breach shall not
constitute a waiver of any other default or breach of this Lease. No
provision of this Lease shall be deemed waived by Landlord unless evidenced
in writing. Landlord's rights and remedies under this Lease shall be
cumulative of every other right or remedy Landlord may have otherwise at
law or in equity, and Landlord's exercise of one or more of the rights or
remedies shall not bar or in any way impair Landlord's exercise of other
rights and remedies.
31. SUBORDINATION
This Lease and all rights of the Tenant hereunder are subject and
subordinate to any deeds of trust, mortgages or other instruments of
security which do now or may hereafter cover the building and the land or
any interest of Landlord therein, and to any and all advances made on the
security thereof, and to any and all increases, renewals, modifications,
consolidations, replacements and extensions of any of such deeds of trust,
mortgages or instruments of security. This provision is hereby declared by
Landlord and Tenant to be self-operative and no further instrument shall be
required to effect such subordination of this lease. Tenant shall,
however, from time to time, upon demand, execute, acknowledge and deliver
to Landlord any and all instruments and certificates that in the judgment
of Landlord may be necessary or proper to confirm or evidence such
subordination, and Tenant hereby irrevocably appoints Landlord as Tenant's
agent and attorney-in-fact for the purpose of executing, acknowledging and
delivering any such instruments and certificates. This Lease and all
rights of Tenant hereunder are further subject and subordinate to all
ground or primary leases in existence at the date hereof and to any and all
supplements, modifications and extensions thereof heretofore or hereafter
made. However, notwithstanding the foregoing provisions of this Section
31, Tenant agrees that any such mortgagee shall have the right at any time
to subordinate any such deeds of trust, mortgages or other instruments of
security to this Lease on such terms and subject to such conditions as such
mortgagee may deem appropriate in its discretion. Tenant further agrees,
upon demand by Landlord's mortgagee at any time, before or after the
institution of any proceedings for the foreclosure of any such deeds of
trust, mortgages or other instruments of security, or sale of the building
pursuant to any such deeds of trust, mortgages or other instrument of
security, to attorn to such purchaser upon any such sale and to recognize
such purchaser as Landlord under this Lease. This agreement of Tenant to
attorn upon demand of Landlord's mortgagee shall survive any such
foreclosure sale or trustee's sale. Tenant shall upon demand at any time
or times, or after any such foreclosure sale or trustee's sale, execute,
acknowledge and deliver to Landlord's mortgagee any and all instruments and
certificates that in the judgment of Landlord's mortgagee may be necessary
or proper to confirm or evidence such attornment, and Tenant hereby
irrevocably appoints Landlord's mortgagee at Tenant's agent and
<PAGE>
attorney-in-fact for the purpose of executing, acknowledging and delivering
any such instruments and certificates.
32. ESTOPPEL CERTIFICATES
Tenant agrees to furnish from time to time when requested by Landlord or
the holder of any deed of trust or mortgage covering the land and building
or any interest of Landlord therein, a certificate signed by Tenant to the
effect that this Lease is then presently in full force and effect and
unmodified; that the term of this Lease has commenced and the full rental
is then accruing hereunder; that Tenant has accepted possession of the
Leased Premises and that any improvements required (if any) by the terms of
this Lease to be made by Landlord have been completed to the satisfaction
of Tenant; that no rent under this Lease has been paid more than 30 days in
advance of its due date; that the address for notices to be sent to Tenant
is as set forth in this Lease; that Tenant, as of the date of such
certificate, has no charge, lien or claim of offset under this Lease or
otherwise against rents or other charges due or to become due hereunder;
and that to the knowledge of Tenant, Landlord is not then in default under
this Lease. The certificate shall also contain an agreement by Tenant with
such holder that from and after the date of such certificate, Tenant will
not pay any rent under this Lease more than 30 days in advance of its due
date, will not surrender or consent to the modification of any of the terms
of this Lease nor to the termination of this Lease by Landlord, and will
not seek to terminate this Lease by reason of any act or omission of
Landlord until Tenant shall have given written notice of such act or
omission to the holder of such deed of trust or mortgage (at such holder's
last address furnished to Tenant) and until a reasonable period of time
shall have elapsed following the giving of such notice; during which period
such holder shall have the right, but shall not be obligated, to remedy
such act or omission; provided, however, that (i) the agreement of Tenant
described in this sentence will be of no effect under such certificate
unless Tenant is furnished by such holder with a copy of any assignmentto
such holder of Landlord's interest in this Lease within 120 days after the
date of such certificate, and (ii) the agreement of Tenant with such holder
that is embodied in such certificate shall terminate upon the subsequent
termination of any such assignment.
33. JOINT AND SEVERAL LIABILITY
The obligations imposed upon Tenant (if more than one) under this
Lease shall be joint and several. If Tenant has a guarantor, the
obligations of Tenant under this Lease shall be joint and several
obligations of Tenant and guarantor. Landlord may proceed against
guarantor without first proceeding against Tenants, and no guarantor shall
be released from its guaranty for any reason, including, but not limited
to, any amendment of this Lease, any waiver of Landlord's rights, failure
of Landlord to give Tenant or any guarantor any notices, or release of any
party liable for payment and performance of Tenant's obligations under this
Lease.
34. ATTORNEY'S FEES
If Landlord brings any action under this Lease or consults or places
this Lease or any amount payable under it with an attorney for
<PAGE>
the enforcement of any of Landlord's rights under this Lease, Tenant agrees
in each case to pay Landlord reasonable attorney's fees and other costs and
expenses incurred by Landlord in connection therewith.
35. QUIET POSSESSION
Landlord hereby covenants that Tenant, upon payment of rent as
provided under this Lease and performing all other agreements contained in
this Lease, shall and may peacefully have, hold and enjoy the Lease Premises.
36. BUILDING NAME
Tenant may use the present name of the building in the name of its
business and in its business address, provided, however, that Landlord
reserves the right to change the name of the building at any time without
prior notice to Tenant. Tenant agrees to immediately cease use of the
building name in connection with its business upon termination of this
Lease, by lapse of time or otherwise.
37. PARKING
Landlord reserves the right to designate specific areas and spaces
within which Tenant, Tenant's employees, agents, visitors and customers may
park. Tenant shall not, however, be entitled to exclusive use of such
designated parking spaces (unless granted such right by Landlord in
writing) and Landlord may, in its sole discretion, reassign the location of
such parking spaces at any time. Landlord further reserves the right to
promulgate rules and regulations for the use of all parking areas at any
time during the term of this Lease. Notwithstanding any foregoing
provision of this Section 37, Landlord shall have the right to designate
any parking area or space for the exclusive use of a tenant or other person
or persons. Tenant agrees that it will employ its best efforts to present
the use by Tenant's employees, agents, visitors and customers of parking
spaces allocated to other tenants.
38. NOTICES
Any notice required or permitted to be given by one party to the other
under this Lease shall be in writing and shall be effective when deposited
pursuant herein with the United States Mail, Certified or Registered Mail,
Return Receipt Requested, postage prepaid, addressed as follows:
If to LANDLORD: If to TENANT:
ontfort Park Office Building Netvoice Technologies
C/O Trinity Interests, 13747 Montfort Dr., #101
12750 Merit Drive, Ste 1315 Dallas, TX 75240
Dallas, TX 75251 Attn: William Bedri
Attn: Beverly Heflin
Either party may change its address as designated above by written notice
to the other party.
39. FINANCIAL STATEMENTS
<PAGE>
Tenant shall furnish Landlord from time to time, when requested by
Landlord, an annual statement of financial condition of Tenant prepared in
a form reasonably satisfactory to Landlord.
40. LEASEHOLD IMPROVEMENTS
If the Leased Premises are not ready for occupancy by Tenant on the
lease commencement date, because Tenant's leasehold improvements are not
substantially complete or for any other reason, the obligations of Landlord
and Tenant shall nevertheless continue in full force and effect. In the
event the Lease Premises are not ready for occupancy for reasons other than
any delay in the installation of Tenant's leasehold improvements due to any
changes or additions ordered by Tenant, then the rent hereinabove provided
shall abate and not commence until the date the leasehold improvements to
the Lease Premises are substantially complete; but such abatement of rent
shall constitute full settlement of all claims that Tenant might otherwise
have against Landlord by reason of the Leased Premises not being ready for
occupancy by Tenant on the lease commencement date. If the Leased Premises
are not ready for occupancy by Tenant on the lease commencement date, the
term of this Lease shall be extended by the period of time which elapses
between the lease commencement date as stated in article 4, and the date
the Leased Premises are ready for occupancy by Tenant, and the parties
agree to execute an agreement between them confirming any such extension of
the lease term.
41. ENTIRE AGREEMENT
Tenant agrees that as a material consideration for execution of this
Lease there are no oral representations, understandings, stipulations or
premises pertaining to this agreement that are not incorporated in this
Lease, and it is also agreed that this Lease shall not be altered, waived,
amended or extended except by written agreement signed by both parties,
unless expressly proved otherwise in this Lease.
42. SEVERABILITY
If any provision of this Lease is illegal, invalid or unenforceable
under present or future laws during the term of this Lease, it is the
intention of both parties that the remainder of this Lease shall not be
affected, and that a clause be added to this Lease as similar to such
invalid or unenforceable clause as possible and be legal, valid and enforceable.
43. CAPTIONS
The captions of each paragraph of this Lease are added as a matter of
convenience only and shall not be considered in the construction or
interpretation of any part of this Lease.
44. BINDING EFFECT
The provisions of this Lease shall be binding upon and insure to the
benefit of Landlord and Tenant, respectively, and to their heirs, personal
representatives, successors and assigns, subject to the provisions of
Section 26 above.
<PAGE>
45. SPECIAL CONDITIONS
1. Tenant accepts the space in "as is" condition.
2. Tenant will prepay the first three months rent upon execution of the
Lease Agreement.
3. Landlord will grant Tenant the use of two (2) reserved parking spaces
in the underground garage of the building at no charge for the term of
the lease.
IN WITNESS WHEREOF, this Lease is entered into by the parties hereto on the
date and year first set forth above.
TENANT:
By:_______________________________
Name:_____________________________
Title:____________________________
Date:_____________________________
Attest:___________________________
LANDLORD:
By:_______________________________
Name:_____________________________
Title:____________________________
Date:_____________________________
Attest:___________________________
<PAGE>
BUILDING RULES AND REGULATIONS
------------------------------
1. Landlord will provide and maintain an alphabetical directory
board on the ground floor lobby of the Building and allot one (1) name
strip for Tenant's use.
2. Tenant will be granted one building access card per 500 square
feet of leased space. Additional cards will require a $10.00 deposit per
card, which will be refunded upon Tenant's surrender of the access card.
3. Monitored reserved parking is available by separate agreement at
a monthly charge to Tenant. Parking permits as a part of this lease
agreement shall be unassigned and will not be policed by management.
4. Tenant will refer all contractors, contractors' representatives
and installation technicians rendering any service to Tenant, to Landlord's
supervision, approval, and control before performance of any contractual
service. This provision shall apply to all work performed in the Building
including the installation of telephones, telegraph equipment, electrical
devices, and attachments, and all installations of any nature affecting
floors, walls, woodwork, trim, windows, ceiling, equipment or any other
physical portion of the Building.
5. Movement in or out of the Building of furniture or office
equipment or the dispatch or receipt by Tenant of any merchandise or
materials which require the use of elevators or stairways or the movement
through Building entrances or lobbies shall be restricted to hours
designated by Landlord. All such movement shall be under supervision of
Landlord and in the manner agreed between Tenant and Landlord by
prearrangement before performance. Such prearrangement, initialed by
Tenant, will include the determination by Landlord and subject to its sole
discretion and control, time, method, and routing of movement, limitations
imposed by safety or other concerns which may prohibit any article,
equipment or any other item from being brought into the building. Tenant
shall assume all risk as to damage to articles moved and injury to persons
or property, and personnel if damaged or injured as a result of acts in
connection with such service performed for or by Tenant. Management will
inspect the condition of pathways prior to Tenant's move, and any damages
resulting from such moves will be deducted from Tenant's security deposit.
6. Unless otherwise expressly agreed in writing by Landlord, (i) no
signs will be allowed in any form on the exterior of the Building or the
interior or exterior of windows, (ii) no signs except in uniform location
and style fixed by Landlord will be permitted in the public corridors or on
corridor doors or entrances to Tenant's space, and (iii) the construction
and/or installation of all authorized signs will be contracted for by
Landlord for Tenant at the rate fixed by Landlord from time to time and
Tenant will be billed and pay for such service promptly on receipt thereof.
7. No portion of Tenant's Premises or any other part of the Building
shall at any time be used or occupied as sleeping or lodging quarters.
<PAGE>
8. Tenant shall not place, install or operate on the Premises or in
any part of the Building, any engine, stove, or machinery, or conduct
mechanical operations or cook thereon or therein, or place or use in or
about the Premises any explosives, gasoline, kerosene, oil, acids,
caustics, or any other inflammable, explosive, or hazardous material
without written consent of Landlord.
9. Landlord shall not be responsible for lost or stolen personal
property, equipment, money or jewelry from Tenant's area or public rooms
regardless of whether such loss occurs when such area is locked against
entry or not.
10. Landlord will not permit entrance to Tenant's offices by use of
pass keys controlled by Landlord to any person at any time without the
prior written permission of Tenant except only employees, contractors, or
service personnel directly supervised by Landlord.
11. None of the entries, passages, doors, elevators doors, hallways,
or stairways shall be blocked or obstructed, nor shall any rubbish, litter,
trash, or material of any nature be placed, emptied or thrown into these
areas, nor shall such areas be used at any time except for ingress and
egress by Tenant, Tenant's agents, employees, or invitees.
12. Tenant shall not do, or permit anything to be done in or about
the Building, or bring or keep anything therein that will in any way
increase the rate of fire or other insurance on the Building, or on
property kept therein, or obstruct or interfere with the rights of, or
otherwise injure or annoy, other tenants, or do anything contrary to or in
conflict with valid laws, rules or regulations of any municipal or
governmental authority of fire, safety or building authority or regulation.
13. Should Tenant require telegraphic, telephonic, annunciator, data
processing equipment prior approval by Landlord will be required.
Contractors performing installation shall submit plans and receive
Landlord's approval on method of installation and will be subject to
Landlord's supervision on location and means of making cuts or wiring procedure.
14. Landlord specifically reserves the right to refuse admittance to
the Building from 6:30 PM to 7:00 AM daily, or on Sundays or on legal
holidays, to any person who, cannot furnish satisfactory identification, or
to any person who for any other reason in the Landlord's judgment, should
be denied access to the Demised Premises. Landlord, for the protection of
the tenants and their effects, may prescribe hours and intervals during the
night, on Sundays and holidays, when all persons entering and departing the
Building shall be required to enter their names, the office to which they
are going or from which they are leaving, and time of entrance or departure
in a register provided for that purpose by Landlord.
15. Landlord servers the right to rescind any of these rules and make
such other and further rules and regulations as in Landlord's judgment
shall from time to time be needed for the operations thereof, the
preservation of good order therein, and the protection and comfort of its
tenants, their agents, employees and invitees, which rules when made
<PAGE>
and notice thereof given to a Tenant shall be binding upon Tenant in the
manner as if originally prescribed.
16. All lettering and signage within or without the Premises shall be
subject to the prior written approval of Landlord.
17. Tenant is responsible for excessive leakage from employee
automobiles. Tenant will be liable for costs associated with clean-up due
to excessive auto leakage.
18. No birds or animals shall be brought into or kept in or about the
building.
Landlord desires to maintain the highest standards of environmental
comfort and convenience for Tenant. It will be appreciated if any
undesirable conditions or lack of courtesy or attention are reported
directly to the management.
SECURITY DEPOSIT
Amount $ 3031.50
----------
The security deposit shall be payable on the date of Tenant's
execution of this Lease and shall be held by Landlord without liability for
interests and as security for the performance by Tenant of Tenant's
obligations under this Lease. It is expressly understood that the security
deposit shall not be considered an advance payment of rental or a measure
of Landlord's damages in case of default by Tenant or upon termination of
this Lease. Landlord may commingle the security deposit with Landlord's
other funds. Landlord may, from time to time, without prejudice to any
other remedy, use the security deposit to the extent necessary to make good
any arrearages of rent or to satisfy any other obligation of Tenant
hereunder. Following any such application of the security deposit, Tenant
shall pay to Landlord on demand the amount so applied in order to restore
the security deposit to its original amount. If Tenant is not in default
at the termination of this Lease, the balance of the security deposit
remaining after any such application shall be returned by Landlord to
Tenant. If Landlord transfers its interest in the Lease Premises during
the term of this Lease, Landlord may assign the security deposit to the
transferee and thereafter shall have no further liability for the return of
such security deposit.
<PAGE>
FIRST AMENDMENT TO LEASE
This First Amendment to the Lease Agreement (the "First Amendment") is
entered into between Montfort Park Office Building (Landlord or Lessor) and
Netvoice Technologies, LLC (Lessee or Tenant) for and in consideration of
Ten Dollars ($10.00) and other good and valuable consideration, receipt of
which is hereby acknowledged.
Witnesesseth:
Lessor and Lessee hereby confirm and ratify, except as modified below, all
the terms, conditions, and covenants in that certain written Lease
Agreement dated March 10, 1998 between Lessor and Lessee except as modified
below:
1. Lessor and Lessee agree that Lessee will relocate from Suite 101
containing approximately 2021 rental square feet to Suite 250,
containing approximately 5640 rental square feet. Lessee's new
square footage is 5640 rental square feet.
2. The effective date will be March 15, 1999.
3. The rental rate will increase effective March 15, 1999 from
$3,031.50 per month to $8,695.00 per month. The base rental for
Suite 101 and increase for Suite 250 for March 1, 1999 March
31, 1999 will be due upon execution of the Lease Amendment.
Thereafter, all rents are due on the first day of each month per
the Lease Agreement.
4. Lessee accepts the premises in "as is" condition except that
Lessor, at Lessors expense, will install a double wooden entry
door with sidelight.
5. Except as specifically amended and modified herein, the Lease
Agreement is hereby ratified and affirmed and remains in full
force and effect.
6. Lessor agrees to grant Lessee two (2) additional garage car parks
at no cost for the term of the lease.
Executed this ________________ Day of March, 1999
Lessor: Montfort Park Office Lessee: Netvoice Technologies, LLC
Building
By: ____________________________ By: ____________________________
Print: _________________________ Print: _________________________
Title: _________________________ Title: _________________________
EXHIBIT 10.31
EMPLOYMENT AGREEMENT
This Agreement, entered in to this 6th day of August 1999, is by and
between NetVoice Technologies, Corporation, a Nevada corporation
(hereinafter referred to as the "Company") and Jeff Rothell (hereinafter
referred to as "Employee") under the following terms and conditions:
RECITALS:
---------
WHEREAS, the Company and Employee desire to set forth the terms and
conditions on which (i) the Company shall employ Employee, (ii) Employee
shall render services to the Company or a subsidiary or parent of the
Company, and (iii) the Company shall compensate Employee for such services
to the Company; and
WHEREAS, in connection with the employment of Employee by the Company,
the Company desires to restrict Employee's rights to compete with the
business of the Company;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. EMPLOYMENT
The Company hereby employs Employee and Employee hereby accepts
employment with the Company upon the terms and conditions hereinafter set
forth.
2. TERM
2.1 The term of this Agreement (the "Term") shall be for a
period of one year commencing on the Effective Date (as defined in
subsection 2.3 below) of this Agreement, subject, however, to prior
termination as provided herein below, in Section 6.
2.2 For purposes of extending the term of the relationship
between the Company and Employee, the parties agree to enter into good
faith negotiations within sixty (60) days prior to the termination of this
Agreement. In the event that the parties are unable to reach an agreement
at such time as this Agreement terminates, this Agreement shall be
automatically terminated at the end of the term set forth in subsection 2.1
above.
2.3 The effective date of this Agreement shall be August 1, 1999.
<PAGE>
3. DUTIES AND RESPONSIBILITIES
3.1 Employee shall, during the Term of this Agreement, devote
his/her full attention and expend his/her best efforts, energies and
skills, on a full-time basis, to the business of the Company, any
corporation controlled by the Company (each a "Subsidiary"), and NetVoice
Technologies Corporation, the parent of the Company (hereinafter the
"Parent").
3.2 During the Term of this Agreement, Employee shall serve as
the President of the Company or in such other capacity as determined by the
Board of Directors of the Company (hereinafter the "Board"). In the
performance of all of his/her responsibilities hereunder, Employee shall be
subject to all of the Company's policies, rules, and regulations applicable
to its employees of comparable status and shall report directly to, and
shall be subject to, the direction and control of the executive officers
and/or directors of the Company and shall perform such duties as shall be
assigned to him. In performing such duties, Employee will be subject to and
abide by, and will use his/her best efforts to cause other employees of the
Company to be subject to and abide by, all policies and procedures
developed by the Board or senior management of the Company.
4. COMPENSATION
4.1 For all services rendered by Employee under this Agreement,
the Company shall pay Employee during the term hereof a base salary at the
rate of per year, payable in accordance with the Company's
existing payroll schedule.
4.2 As a bonus for Employee entering into this Agreement, the
Company shall issue to Employee 50,000 shares of common stock on August 6, 1999.
4.3 As additional compensation hereunder, Employee shall be
entitled to receive up to 250,000 shares of common stock as set forth
herein in accordance with Exhibit A (hereinafter the "Quarterly Bonus
Payments"). Quarterly Bonus Payments shall vest on a pro-rata basis
throughout the quarter.
(a) EFFECT OF TERMINATION OF EMPLOYMENT WITH CAUSE,
RESIGNATION OR DEATH OR DISABILITY. In the event that this
Agreement is terminated with cause or the employee resigns
prior to the last day of any quarterly anniversary of the
Effective Date of this Agreement, the obligation of the Company
to grant any Quarterly Bonus Payment for such quarter will be the
pro-rata share for such quarter. Any obligation for Quarterly
Bonus Payments for future quarters, shall be null and void and
Employee shall have no further rights to such stock bonuses. In
the event of the disability or death of Employee as set forth
herein, Employee or the estate of the Employee shall continue to
have the right to receive the Quarterly Bonus Payments hereunder
until the expiration of the term of this Agreement
ii -2-
<PAGE>
(b). Effect of Termination without Cause .
If there is any termination by the Company of the Employee's employment
(other than for Cause or disability), then Company shall issue all
Quarterly Bonus Payments in consideration of Employee's agreement to
release his/her rights as an Employee. Additionally, the Company will pay
the employee a severence in the amount of forty-five (45) days payable as
part of normal payroll of the Company or in a lump sum.
(c.) Change in Control. Upon any Change in Control, all
Quarterly Bonus Payments shall vest and immediately be issuable.
"Change in Control" means:
i. An acquisition by any "person" or "group" (as those terms
are defined or used in Section 13(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), as enacted and in force on the date
hereof) of "beneficial ownership" (within the meaning of Rule 13d-3 under
the Exchange Act, as enacted and in force on the date hereof) of securities
of the Company or Parent representing 50% or more of the combined voting
power of Company's or Parent's securities then outstanding;
ii. A contested proxy solicitation of Company's or Parent's
shareholders that results in the contesting party obtaining the ability to
cast 50% or more of the votes entitled to be cast in an election of
directors of Company or Parent;
iii. A merger, consolidation or other reorganization of Company
or Parent, except where shareholders of Company or Parent immediately prior
to consummation of any such transaction continue to hold at least a
majority of the voting power of the outstanding voting securities of the
legal entity resulting from or existing after any transaction and a
majority of the members of the Board of Directors of the legal entity
resulting from or existing after a transaction are former members of
Company's or Parent's Board of Directors;
iv. A sale, exchange, transfer or other disposition of
substantially all of the assets of Company or Parent to another entity,
except to an entity controlled, directly or indirectly, by Company or Parent;
v. A change in the composition of a 40% or more of the
Company's or Parent's Board of Directors, during any one year period.
(b) RESERVATION OF STOCK. The Company shall cause the
Parent to reserve for issuance of the stock bonuses set forth
above the number of shares of common stock subject to such
unissued stock bonuses. The Parent may reserve either authorized
but unissued shares or issued shares that have been reacquired by
the Parent.
ii -3-
<PAGE>
(c) DILUTION OR OTHER ADJUSTMENT. In the event that the
number of shares of common stock of the Parent from time to time
issued and outstanding is increased pursuant to a stock split or
a stock dividend, the number of shares of common stock thereafter
to be issued pursuant to this provision shall be increased
proportionately. In the event that the number of shares of
common stock of the Parent from time to time issued and
outstanding is reduced by a combination or consolidation of
shares, the number of shares of common stock to be issued
pursuant hereto shall be reduced proportionately. No fractional
shares shall be issued, and any fractional shares resulting from
the computations pursuant to this subparagraph shall be
eliminated from the future Quarterly Bonus Payments. No
adjustment shall be made for cash dividends, for the issuance of
additional shares of common stock for consideration approved by
the Board of Directors of the Parent, or for the issuance to
stockholders of rights to subscribe for additional common stock
or other securities.
(d) Amendment. This subsection 4.3 shall not be amended
without the prior written consent of the Parent. The Parent
shall be deemed a third party beneficiary of this Agreement.
4.4 SECURITIES LAW PROVISIONS. The Company shall cause the
Parent to take all reasonable steps as it deems appropriate to permit
issuance of the shares of common stock as specified in this Section
pursuant to a valid exemption from registration or qualification under
applicable federal and state securities laws; PROVIDED, that in no event
shall the Parent be required to consent to the general service of process
or to qualify as a foreign corporation in any jurisdiction where the
Employee resides if such jurisdiction is different than the Employee's
present residence. In order to comply with exemptions from the
registration requirements of the Securities Act of 1933, and certain state
securities statutes, the Parent may require the Employee to make certain
representations and execute and deliver to the Parent certain documents as
a condition to issuance of the shares of common stock hereunder, all in
form and substance satisfactory to the Parent as determined in its sole
discretion. In the event the Parent reasonably determines that the shares
of common stock cannot be issued in compliance with applicable federal and
state securities laws in the absence of registration or qualification under
such statutes, neither the Parent nor the Company shall be under any
obligation to issue the shares of common stock pursuant hereto. Neither
the Company nor the Parent is under any obligation to provide registration
rights in connection with any of the shares of common stock issued pursuant
to this Agreement.
4.5 All compensation shall be subject to customary withholding
tax and other employment taxes as are required with respect to compensation
paid by a corporation to an employee.
5. ADDITIONAL EMPLOYEE COVENANTS
5.1 CONFIDENTIAL INFORMATION. Employee recognizes and
acknowledges that certain information, including, but not limited to,
information pertaining to the financial condition
ii -4-
<PAGE>
of the Company, the Subsidiaries, and the Parent, their systems, methods of
doing business, agreements with customers or suppliers, or other aspects of
the business of such entities or which are sufficiently secret to derive
economic value from not being disclosed (hereinafter "Confidential
Information") may be made available or otherwise come into the possession
of Employee by reason of his/her employment with the Company. Accordingly,
Employee agrees that he will not (either during or after the term of
his/her employment with the Company) disclose any Confidential Information
to any person, firm, corporation, association, or other entity for any
reason or purpose whatsoever or make use to his/her personal advantage or
to the advantage of any third party, of any Confidential Information,
without the prior written consent of the Board. Employee shall, upon
termination of employment, return to the Company all documents which
reflect Confidential Information (including copies thereof).
Notwithstanding anything heretofore stated in this subsection 5.1,
Employee's obligations under this subsection 5.1 shall not, after
termination of Employee's employment with the Company, apply to information
which has become generally available to the public without any action or
omission of Employee (except that any Confidential Information which is
disclosed to any third party by an employee or representative of the
Company who is authorized to make such disclosure shall be deemed to remain
confidential and protectable under this subsection 5.1).
5.2 RECORDS. All files, records, memoranda, and other documents
regarding former, existing, or prospective customers of the Company or
relating in any manner whatsoever to Confidential Information or the
business of the Company (collectively ""Records"), whether prepared by
Employee or otherwise coming into his/her possession, shall be the
exclusive property of the Company. All Records shall be immediately placed
in the physical possession of the Company upon the termination of
Employee's employment with the Company, or at any other time specified by
the Board. The retention and use by the Employee of duplicates in any form
of Records after termination of Employee's employment with the Company is
prohibited.
5.3 REMEDIES. Employee hereby recognizes and acknowledges that
irreparable injury or damage shall result to the Company in the event of a
breach or threatened breach by Employee of any of the terms or provisions
of this Section 5, and Employee therefor agrees that the Company shall be
entitled to an injunction restraining Employee from engaging in any
activity constituting such breach or threatened breach. Nothing contained
herein shall be construed as prohibiting the Company from pursuing any
other remedies available to the Company at law or in equity for such breach
or threatened breach, including, but not limited to, the recovery of
damages from Employee and, if Employee is an employee of the Company, the
termination of his/her employment with the Company in accordance with the
terms of this Agreement.
ii -5-
<PAGE>
6. TERMINATION
6.1 The Company may terminate the Employee's employment under
this Agreement at any time for cause. "Cause" shall exist for such
termination if Employee (i) is adjudicated guilty of illegal activities of
consequence by a court of competent jurisdiction; (ii) commits any act of
fraud or intentional misrepresentation; (iii) has, in the reasonable
judgment of the Board, engaged in serious misconduct, which conduct has, or
would if generally known, materially adversely affect the good will or
reputation of the Company and which conduct the Employee has not cured or
altered to the satisfaction of the Board within ten (10) days following
notice by the Board to the Employee regarding such conduct; (iv) breaches
any of the provisions of this Agreement and which breach the Employee has
not cured or altered to the satisfaction of the Board within ten (10) days
following notice by the Board to the Employee regarding such breach; or (v)
has made any material misrepresentation to the Company.
6.2 If the Company terminates the Employee's employment under
this Agreement pursuant to the provisions of subsection 6.1 hereof, the
Employee shall not be entitled to receive any compensation set forth in
Section 4 above following the date of such termination.
6.3 If Employee's employment with the Company is terminated
within the first year of employment due to the death or permanent
disability of Employee or for any reason other than pursuant to the
provisions of subsection 6.1 above, the Employee shall continue to receive
compensation for one (1) month from the date of such termination (such
payments by the Company to be diminished, however, by the extent to which
the Employee receives compensation during such one (1) month period from a
third party employer) in an amount equal to the monthly compensation paid
Employee for the month prior to such termination. If Employee's employment
with the Company is terminated within the second or third years of
employment due to the death or permanent disability of Employee or for any
reason other than pursuant to the provisions of subsection 6.1 above, the
Employee shall continue to receive compensation for three (3) months from
the date of such termination (such payments by the Company to be
diminished, however, by the extent to which the Employee receives
compensation during such three (3) month period from a third party
employer) in an amount equal to the monthly compensation paid Employee for
the month prior to such termination. Thereafter, the Employee shall not be
entitled to receive any compensation following the date of termination.
6.4 EMPLOYEE'S DUTIES ON TERMINATION. In the event of
termination of employment with the Company, Employee agrees to deliver
promptly to the Company all equipment, notebooks, documents, memoranda,
reports, files, samples, books, correspondence, lists, or other written or
graphic records, and the like, relating to the Company's business, which
are or have been in his/her possession or under his/her control.
ii -6-
<PAGE>
7. EXPENSES
7.1 Employee shall be entitled to reimbursement of all
reasonable expenses actually incurred in the course of his/her employment.
Employee shall submit such expenses on the Company's standardized expense
report form, provided by the Company, and shall attach thereto receipts for
all expenditures. Automobile expenses shall be reimbursed at the maximum
mileage rate allowed by the Internal Revenue Service.
7.2 The Company shall reimburse Employee within fifteen (15)
days after submission by Employee of his/her expense report.
8. THE COMPANY'S AUTHORITY
Employee agrees to observe and comply with the reasonable rules
and regulations of the Company as adopted by the Board either orally or in
writing respecting performance of his/her duties and to carry out and
perform orders, directions, and policies stated by the Board, to him from
time to time, either orally or in writing.
9. PAID VACATION; SICK LEAVE; INSURANCE
9.1 Following three (3) months from the Effective Date of this
Agreement, Employee shall be entitled to a paid vacation of two weeks
during the initial one-year term of this Agreement. The Company and the
Employee shall negotiate in good faith the amount of paid vacation during
any extension of this Agreement.
9.2 The Employee shall be entitled to reasonable periods of paid
sick leave during the term of this Agreement in accordance with the
Company's policy regarding such sick leave.
9.3 Following thirty (30) days from the Effective Date of this
Agreement, the Company shall provide Employee, at the Company's expense,
participation in the group medical insurance plan of the Company as may be
provided by the Company from time to time to Company employees of
comparable status, subject to, and to the extent that, the Employee is
eligible under such benefit plans in accordance with their respective
terms. The provision of such insurance coverage by the Company shall be
made for the Employee only, and shall not be provided for Employee's spouse
or dependents.
10. NONCOMPETITION
10.1 During his/her employment, Employee shall not, directly or
indirectly, whether as an employee, director, owner, 5% or greater
stockholder, consultant, or partner (limited or general):
ii -7-
<PAGE>
(a) engage in or have any interest in, any business that
competes with the business of the Company during such period, including the
business of the Company or its Subsidiaries. The Company may, in its sole
discretion, give Employee written approval(s) to personally engage in any
activity or render any services referred to in this Section 10 if the
Company secures written assurances (satisfactory to the Company and its
counsel) from Employee, or any prospective employer(s) of Employee, that
the integrity of the Company's Confidential Information will not in any way
be jeopardized by such activities, provided that the burden of so
establishing the foregoing to the satisfaction of the Company and its
counsel shall be upon Employee;
(b) offer any of the products or services similar or in
competition with those offered by the Company; or
(c) otherwise compete or interfere with the activities of
the Company during the term of this Agreement or any extension thereof.
10.2 REMEDIES. Employee hereby recognizes and acknowledges that
irreparable injury or damage shall result to the Company in the event of a
breach or threatened breach by Employee of any of the terms or provisions
of this Section 10, and Employee therefor agrees that the Company shall be
entitled to an injunction restraining Employee from engaging in any
activity constituting such breach or threatened breach. Nothing contained
herein shall be construed as prohibiting the Company from pursuing any
other remedies available to the Company at law or in equity for such breach
or threatened breach, including, but not limited to, the recovery of
damages from Employee and, if Employee is an employee of the Company, the
termination of his/her employment with the Company in accordance with the
terms of this Agreement.
11. MISCELLANEOUS
11.1 The Company may, from time to time, apply for and take out,
in its own name and at its own expense, life, health, accident, disability
or other insurance upon the Employee in any sum or sums that it may deem
necessary to protect its interests, and the Employee agrees to aid and
cooperate in all reasonable respects with the Company in procuring any and
all such insurance, including without limitation, submitting to the usual
and customary medical examinations, and by filling out, executing and
delivering such applications and other instruments in writing as may be
reasonably required by an insurance company or companies to which an
application or applications for such insurance may be made by or for the
Company. In order to induce the Company to enter into this Agreement, the
Employee represents and warrants to the Company that to the best of his/her
knowledge the Employee is insurable at standard (non-rated) premiums.
11.2 This Agreement is a personal contract, and the rights and
interests of the Employee hereunder may not be sold, transferred, assigned,
pledged or hypothecated except as otherwise expressly permitted by the
provisions of this Agreement. The Employee shall not under any
circumstances have any option or right to require payment hereunder
otherwise than in
ii -8-
<PAGE>
accordance with the terms hereof. Except as otherwise expressly provided
herein, the Employee shall not have any power of anticipation, alienation,
or assignment of payments contemplated hereunder, and all rights and
benefits of the Employee shall be for the sole personal benefit of the
Employee, and no other person shall acquire any right, title or interest
hereunder by reason of any sale, assignment, transfer, claim or judgment or
bankruptcy proceedings against the Employee; provided, however, that in the
event of the Employee's death, the Employee's estate, legal representative
or beneficiaries (as the case may be) shall have the right to receive all
of the benefit that accrued to the Employee pursuant to, and in accordance
with, the terms of this Agreement.
11.3 The Company shall have the right to assign this Agreement to
any successor of substantially all of its business or assets, and any such
successor shall be bound by all of the provisions hereof.
12. CORPORATE APPROVALS
The Company represents and warrants that the execution of this
Agreement by its corporate officer named below has been duly authorized by
the Board, is not in conflict with any Bylaw or other agreement and will be
a binding obligation of the Company, enforceable in accordance with its
terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date above written.
THE COMPANY: NetVoice Technologies, Corporation
By
---------------------------------
Its
--------------------------------
EMPLOYEE:
-----------------------------------
ii -9-
<PAGE>
Exhibit A
---------
Stock Grant
- -----------
Shares earned Date
- -------------- ----
50,000 8/06/99
175,000 1/1/00
25,000 3/1/00
25,000 6/1/00
25,000 1/1/01
EXHIBIT 10.32
EMPLOYMENT AGREEMENT
This Agreement, entered in to this 6th day of August 1999, is by and
between NetVoice Technologies, Corporation, a Nevada corporation
(hereinafter referred to as the "Company") and Garth Cook (hereinafter
referred to as "Employee") under the following terms and conditions:
RECITALS:
---------
WHEREAS, the Company and Employee desire to set forth the terms and
conditions on which (i) the Company shall employ Employee, (ii) Employee
shall render services to the Company or a subsidiary or parent of the
Company, and (iii) the Company shall compensate Employee for such services
to the Company; and
WHEREAS, in connection with the employment of Employee by the Company,
the Company desires to restrict Employee's rights to compete with the
business of the Company;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. EMPLOYMENT
The Company hereby employs Employee and Employee hereby accepts
employment with the Company upon the terms and conditions hereinafter set
forth.
2. TERM
2.1 The term of this Agreement (the "Term") shall be for a
period of one year commencing on the Effective Date (as defined in
subsection 2.3 below) of this Agreement, subject, however, to prior
termination as provided herein below, in Section 6.
2.2 For purposes of extending the term of the relationship
between the Company and Employee, the parties agree to enter into good
faith negotiations within sixty (60) days prior to the termination of this
Agreement. In the event that the parties are unable to reach an agreement
at such time as this Agreement terminates, this Agreement shall be
automatically terminated at the end of the term set forth in subsection 2.1
above.
2.3 The effective date of this Agreement shall be August 1,
1999.
<PAGE>
3. DUTIES AND RESPONSIBILITIES
3.1 Employee shall, during the Term of this Agreement, devote
his/her full attention and expend his/her best efforts, energies and
skills, on a full-time basis, to the business of the Company, any
corporation controlled by the Company (each a "Subsidiary"), and NetVoice
Technologies Corporation, the parent of the Company (hereinafter the
"Parent").
3.2 During the Term of this Agreement, Employee shall serve as
the CFO and Treasurer of the Company or in such other capacity as
determined by the Board of Directors of the Company (hereinafter the
"Board"). In the performance of all of his/her responsibilities hereunder,
Employee shall be subject to all of the Company's policies, rules, and
regulations applicable to its employees of comparable status and shall
report directly to, and shall be subject to, the direction and control of
the executive officers and/or directors of the Company and shall perform
such duties as shall be assigned to him. In performing such duties,
Employee will be subject to and abide by, and will use his/her best efforts
to cause other employees of the Company to be subject to and abide by, all
policies and procedures developed by the Board or senior management of the
Company.
4. COMPENSATION
4.1 For all services rendered by Employee under this Agreement,
the Company shall pay Employee during the term hereof a base salary at the
rate of $78,000 per year, payable in accordance with the Company's existing
payroll schedule.
4.2 As a bonus for Employee entering into this Agreement, the
Company shall issue to Employee 50,000 shares of common stock on August 6,
1999.
4.3 As additional compensation hereunder, Employee shall be
entitled to receive up to 250,000 shares of common stock as set forth
herein in accordance with Exhibit A (hereinafter the "Quarterly Bonus
Payments"). Quarterly Bonus Payments shall vest on a pro-rata basis
throughout the quarter.
(a) EFFECT OF TERMINATION OF EMPLOYMENT WITH CAUSE,
RESIGNATION OR DEATH OR DISABILITY. In the event that this
Agreement is terminated with cause or the employee resigns
prior to the last day of any quarterly anniversary of the
Effective Date of this Agreement, the obligation of the Company
to grant any Quarterly Bonus Payment for such quarter will be the
pro-rata share for such quarter. Any obligation for Quarterly
Bonus Payments for future quarters, shall be null and void and
Employee shall have no further rights to such stock bonuses. In
the event of the disability or death of Employee as set forth
herein, Employee or the estate of the Employee shall continue to
have the right to receive the Quarterly Bonus Payments hereunder
until the expiration of the term of this Agreement
ii -2-
<PAGE>
(b). Effect of Termination without Cause .
If there is any termination by the Company of the Employee's employment
(other than for Cause or disability), then Company shall issue all
Quarterly Bonus Payments in consideration of Employee's agreement to
release his/her rights as an Employee. Additionally, the Company will pay
the employee a severence in the amount of forty-five (45) days payable as
part of normal payroll of the Company or in a lump sum.
(c.) Change in Control. Upon any Change in Control, all
Quarterly Bonus Payments shall vest and immediately be issuable.
"Change in Control" means:
i. An acquisition by any "person" or "group" (as those terms
are defined or used in Section 13(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), as enacted and in force on the date
hereof) of "beneficial ownership" (within the meaning of Rule 13d-3 under
the Exchange Act, as enacted and in force on the date hereof) of securities
of the Company or Parent representing 50% or more of the combined voting
power of Company's or Parent's securities then outstanding;
ii. A contested proxy solicitation of Company's or Parent's
shareholders that results in the contesting party obtaining the ability to
cast 50% or more of the votes entitled to be cast in an election of
directors of Company or Parent;
iii. A merger, consolidation or other reorganization of Company
or Parent, except where shareholders of Company or Parent immediately prior
to consummation of any such transaction continue to hold at least a
majority of the voting power of the outstanding voting securities of the
legal entity resulting from or existing after any transaction and a
majority of the members of the Board of Directors of the legal entity
resulting from or existing after a transaction are former members of
Company's or Parent's Board of Directors;
iv. A sale, exchange, transfer or other disposition of
substantially all of the assets of Company or Parent to another entity,
except to an entity controlled, directly or indirectly, by Company or Parent;
v. A change in the composition of a 40% or more of the
Company's or Parent's Board of Directors, during any one year period.
(b) RESERVATION OF STOCK. The Company shall cause the
Parent to reserve for issuance of the stock bonuses set forth
above the number of shares of common stock subject to such
unissued stock bonuses. The Parent may reserve either authorized
but unissued shares or issued shares that have been reacquired by
the Parent.
ii -3-
<PAGE>
(c) DILUTION OR OTHER ADJUSTMENT. In the event that the
number of shares of common stock of the Parent from time to time
issued and outstanding is increased pursuant to a stock split or
a stock dividend, the number of shares of common stock thereafter
to be issued pursuant to this provision shall be increased
proportionately. In the event that the number of shares of
common stock of the Parent from time to time issued and
outstanding is reduced by a combination or consolidation of
shares, the number of shares of common stock to be issued
pursuant hereto shall be reduced proportionately. No fractional
shares shall be issued, and any fractional shares resulting from
the computations pursuant to this subparagraph shall be
eliminated from the future Quarterly Bonus Payments. No
adjustment shall be made for cash dividends, for the issuance of
additional shares of common stock for consideration approved by
the Board of Directors of the Parent, or for the issuance to
stockholders of rights to subscribe for additional common stock
or other securities.
(d) Amendment. This subsection 4.3 shall not be amended
without the prior written consent of the Parent. The Parent
shall be deemed a third party beneficiary of this Agreement.
4.4 SECURITIES LAW PROVISIONS. The Company shall cause the
Parent to take all reasonable steps as it deems appropriate to permit
issuance of the shares of common stock as specified in this Section
pursuant to a valid exemption from registration or qualification under
applicable federal and state securities laws; PROVIDED, that in no event
shall the Parent be required to consent to the general service of process
or to qualify as a foreign corporation in any jurisdiction where the
Employee resides if such jurisdiction is different than the Employee's
present residence. In order to comply with exemptions from the
registration requirements of the Securities Act of 1933, and certain state
securities statutes, the Parent may require the Employee to make certain
representations and execute and deliver to the Parent certain documents as
a condition to issuance of the shares of common stock hereunder, all in
form and substance satisfactory to the Parent as determined in its sole
discretion. In the event the Parent reasonably determines that the shares
of common stock cannot be issued in compliance with applicable federal and
state securities laws in the absence of registration or qualification under
such statutes, neither the Parent nor the Company shall be under any
obligation to issue the shares of common stock pursuant hereto. Neither
the Company nor the Parent is under any obligation to provide registration
rights in connection with any of the shares of common stock issued pursuant
to this Agreement.
4.5 All compensation shall be subject to customary withholding
tax and other employment taxes as are required with respect to compensation
paid by a corporation to an employee.
5. ADDITIONAL EMPLOYEE COVENANTS
5.1 CONFIDENTIAL INFORMATION. Employee recognizes and
acknowledges that certain information, including, but not limited to,
information pertaining to the financial condition
ii -4-
<PAGE>
of the Company, the Subsidiaries, and the Parent, their systems, methods of
doing business, agreements with customers or suppliers, or other aspects of
the business of such entities or which are sufficiently secret to derive
economic value from not being disclosed (hereinafter "Confidential
Information") may be made available or otherwise come into the possession
of Employee by reason of his/her employment with the Company. Accordingly,
Employee agrees that he will not (either during or after the term of
his/her employment with the Company) disclose any Confidential Information
to any person, firm, corporation, association, or other entity for any
reason or purpose whatsoever or make use to his/her personal advantage or
to the advantage of any third party, of any Confidential Information,
without the prior written consent of the Board. Employee shall, upon
termination of employment, return to the Company all documents which
reflect Confidential Information (including copies thereof).
Notwithstanding anything heretofore stated in this subsection 5.1,
Employee's obligations under this subsection 5.1 shall not, after
termination of Employee's employment with the Company, apply to information
which has become generally available to the public without any action or
omission of Employee (except that any Confidential Information which is
disclosed to any third party by an employee or representative of the
Company who is authorized to make such disclosure shall be deemed to remain
confidential and protectable under this subsection 5.1).
5.2 RECORDS. All files, records, memoranda, and other documents
regarding former, existing, or prospective customers of the Company or
relating in any manner whatsoever to Confidential Information or the
business of the Company (collectively ""Records"), whether prepared by
Employee or otherwise coming into his/her possession, shall be the
exclusive property of the Company. All Records shall be immediately placed
in the physical possession of the Company upon the termination of
Employee's employment with the Company, or at any other time specified by
the Board. The retention and use by the Employee of duplicates in any form
of Records after termination of Employee's employment with the Company is
prohibited.
5.3 REMEDIES. Employee hereby recognizes and acknowledges that
irreparable injury or damage shall result to the Company in the event of a
breach or threatened breach by Employee of any of the terms or provisions
of this Section 5, and Employee therefor agrees that the Company shall be
entitled to an injunction restraining Employee from engaging in any
activity constituting such breach or threatened breach. Nothing contained
herein shall be construed as prohibiting the Company from pursuing any
other remedies available to the Company at law or in equity for such breach
or threatened breach, including, but not limited to, the recovery of
damages from Employee and, if Employee is an employee of the Company, the
termination of his/her employment with the Company in accordance with the
terms of this Agreement.
ii -5-
<PAGE>
6. TERMINATION
6.1 The Company may terminate the Employee's employment under
this Agreement at any time for cause. "Cause" shall exist for such
termination if Employee (i) is adjudicated guilty of illegal activities of
consequence by a court of competent jurisdiction; (ii) commits any act of
fraud or intentional misrepresentation; (iii) has, in the reasonable
judgment of the Board, engaged in serious misconduct, which conduct has, or
would if generally known, materially adversely affect the good will or
reputation of the Company and which conduct the Employee has not cured or
altered to the satisfaction of the Board within ten (10) days following
notice by the Board to the Employee regarding such conduct; (iv) breaches
any of the provisions of this Agreement and which breach the Employee has
not cured or altered to the satisfaction of the Board within ten (10) days
following notice by the Board to the Employee regarding such breach; or (v)
has made any material misrepresentation to the Company.
6.2 If the Company terminates the Employee's employment under
this Agreement pursuant to the provisions of subsection 6.1 hereof, the
Employee shall not be entitled to receive any compensation set forth in
Section 4 above following the date of such termination.
6.3 If Employee's employment with the Company is terminated
within the first year of employment due to the death or permanent
disability of Employee or for any reason other than pursuant to the
provisions of subsection 6.1 above, the Employee shall continue to receive
compensation for one (1) month from the date of such termination (such
payments by the Company to be diminished, however, by the extent to which
the Employee receives compensation during such one (1) month period from a
third party employer) in an amount equal to the monthly compensation paid
Employee for the month prior to such termination. If Employee's employment
with the Company is terminated within the second or third years of
employment due to the death or permanent disability of Employee or for any
reason other than pursuant to the provisions of subsection 6.1 above, the
Employee shall continue to receive compensation for three (3) months from
the date of such termination (such payments by the Company to be
diminished, however, by the extent to which the Employee receives
compensation during such three (3) month period from a third party
employer) in an amount equal to the monthly compensation paid Employee for
the month prior to such termination. Thereafter, the Employee shall not be
entitled to receive any compensation following the date of termination.
6.4 EMPLOYEE'S DUTIES ON TERMINATION. In the event of
termination of employment with the Company, Employee agrees to deliver
promptly to the Company all equipment, notebooks, documents, memoranda,
reports, files, samples, books, correspondence, lists, or other written or
graphic records, and the like, relating to the Company's business, which
are or have been in his/her possession or under his/her control.
ii -6-
<PAGE>
7. EXPENSES
7.1 Employee shall be entitled to reimbursement of all
reasonable expenses actually incurred in the course of his/her employment.
Employee shall submit such expenses on the Company's standardized expense
report form, provided by the Company, and shall attach thereto receipts for
all expenditures. Automobile expenses shall be reimbursed at the maximum
mileage rate allowed by the Internal Revenue Service.
7.2 The Company shall reimburse Employee within fifteen (15)
days after submission by Employee of his/her expense report.
8. THE COMPANY'S AUTHORITY
Employee agrees to observe and comply with the reasonable rules
and regulations of the Company as adopted by the Board either orally or in
writing respecting performance of his/her duties and to carry out and
perform orders, directions, and policies stated by the Board, to him from
time to time, either orally or in writing.
9. PAID VACATION; SICK LEAVE; INSURANCE
9.1 Following three (3) months from the Effective Date of this
Agreement, Employee shall be entitled to a paid vacation of two weeks
during the initial one-year term of this Agreement. The Company and the
Employee shall negotiate in good faith the amount of paid vacation during
any extension of this Agreement.
9.2 The Employee shall be entitled to reasonable periods of paid
sick leave during the term of this Agreement in accordance with the
Company's policy regarding such sick leave.
9.3 Following thirty (30) days from the Effective Date of this
Agreement, the Company shall provide Employee, at the Company's expense,
participation in the group medical insurance plan of the Company as may be
provided by the Company from time to time to Company employees of
comparable status, subject to, and to the extent that, the Employee is
eligible under such benefit plans in accordance with their respective
terms. The provision of such insurance coverage by the Company shall be
made for the Employee only, and shall not be provided for Employee's spouse
or dependents.
10. NONCOMPETITION
10.1 During his/her employment, Employee shall not, directly or
indirectly, whether as an employee, director, owner, 5% or greater
stockholder, consultant, or partner (limited or general):
ii -7-
<PAGE>
(a) engage in or have any interest in, any business that
competes with the business of the Company during such period, including the
business of the Company or its Subsidiaries. The Company may, in its sole
discretion, give Employee written approval(s) to personally engage in any
activity or render any services referred to in this Section 10 if the
Company secures written assurances (satisfactory to the Company and its
counsel) from Employee, or any prospective employer(s) of Employee, that
the integrity of the Company's Confidential Information will not in any way
be jeopardized by such activities, provided that the burden of so
establishing the foregoing to the satisfaction of the Company and its
counsel shall be upon Employee;
(b) offer any of the products or services similar or in
competition with those offered by the Company; or
(c) otherwise compete or interfere with the activities of
the Company during the term of this Agreement or any extension thereof.
10.2 REMEDIES. Employee hereby recognizes and acknowledges that
irreparable injury or damage shall result to the Company in the event of a
breach or threatened breach by Employee of any of the terms or provisions
of this Section 10, and Employee therefor agrees that the Company shall be
entitled to an injunction restraining Employee from engaging in any
activity constituting such breach or threatened breach. Nothing contained
herein shall be construed as prohibiting the Company from pursuing any
other remedies available to the Company at law or in equity for such breach
or threatened breach, including, but not limited to, the recovery of
damages from Employee and, if Employee is an employee of the Company, the
termination of his/her employment with the Company in accordance with the
terms of this Agreement.
11. MISCELLANEOUS
11.1 The Company may, from time to time, apply for and take out,
in its own name and at its own expense, life, health, accident, disability
or other insurance upon the Employee in any sum or sums that it may deem
necessary to protect its interests, and the Employee agrees to aid and
cooperate in all reasonable respects with the Company in procuring any and
all such insurance, including without limitation, submitting to the usual
and customary medical examinations, and by filling out, executing and
delivering such applications and other instruments in writing as may be
reasonably required by an insurance company or companies to which an
application or applications for such insurance may be made by or for the
Company. In order to induce the Company to enter into this Agreement, the
Employee represents and warrants to the Company that to the best of his/her
knowledge the Employee is insurable at standard (non-rated) premiums.
11.2 This Agreement is a personal contract, and the rights and
interests of the Employee hereunder may not be sold, transferred, assigned,
pledged or hypothecated except as otherwise expressly permitted by the
provisions of this Agreement. The Employee shall not under any
circumstances have any option or right to require payment hereunder
otherwise than in
ii -8-
<PAGE>
accordance with the terms hereof. Except as otherwise expressly provided
herein, the Employee shall not have any power of anticipation, alienation,
or assignment of payments contemplated hereunder, and all rights and
benefits of the Employee shall be for the sole personal benefit of the
Employee, and no other person shall acquire any right, title or interest
hereunder by reason of any sale, assignment, transfer, claim or judgment or
bankruptcy proceedings against the Employee; provided, however, that in the
event of the Employee's death, the Employee's estate, legal representative
or beneficiaries (as the case may be) shall have the right to receive all
of the benefit that accrued to the Employee pursuant to, and in accordance
with, the terms of this Agreement.
11.3 The Company shall have the right to assign this Agreement to
any successor of substantially all of its business or assets, and any such
successor shall be bound by all of the provisions hereof.
12. CORPORATE APPROVALS
The Company represents and warrants that the execution of this
Agreement by its corporate officer named below has been duly authorized by
the Board, is not in conflict with any Bylaw or other agreement and will be
a binding obligation of the Company, enforceable in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date above written.
THE COMPANY: NetVoice Technologies, Corporation
By
---------------------------------
Its
--------------------------------
EMPLOYEE:
-----------------------------------
ii -9-
<PAGE>
Exhibit A
---------
Stock Grant
- -----------
Shares earned Date
- -------------- ----
50,000 8/06/99
175,000 1/1/00
25,000 3/1/00
25,000 6/1/00
25,000 1/1/01
EXHIBIT 21
SUBSIDIARIES OF THE COMPANY
---------------------------
NetVoice Technologies, Inc.
NetLD.com, Inc.
EXHIBIT 24.1
SCHVANEVELDT AND COMPANY
CERTIFIED PUBLIC ACCOUNTANT
275 E. SOUTH TEMPLE. SUITE 300
SALT LAKE CITY, UTAH 84111
(801) 521-2392
Darrell T. Schvaneveldt, C.P.A.
Consent of Darrell T. Schvaneveldt
Independent Auditor
I consent to the use, of our report dated December 15, 1999, on the
financial statements of NetVoice Technologies Corporation, dated December
31, 1998, included herein and to the reference made to me.
/s/ SCHVANEVELDT & COMPANY
Salt Lake City, Utah
January 17, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
BALANCE SHEET AS OF 9/30/99 AND 12/31/98 AND INCOME STATEMENT FOR
THE PERIODS 1/1/99 TO 9/30/99 AND 1/7/98 (INCEPTION) TO 12/31/98
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<S> <C> <C>
<PERIOD-TYPE> 9-MOS YEAR
<FISCAL-YEAR-END> DEC-31-1999 DEC-31-1998
<PERIOD-START> JAN-01-1999 JAN-07-1998
<PERIOD-END> SEP-30-1999 DEC-31-1998
<CASH> 46,227 7,990
<SECURITIES> 200 200
<RECEIVABLES> 128,317 75,068
<ALLOWANCES> 0 0
<INVENTORY> 0 0
<CURRENT-ASSETS> 175,784 256,221
<PP&E> 1,616,718 710,149
<DEPRECIATION> 236,793 28,293
<TOTAL-ASSETS> 1,755,652 1,112,151
<CURRENT-LIABILITIES> 4,140,527 2,441,119
<BONDS> 0 0
0 0
0 0
<COMMON> 6,035 4,495
<OTHER-SE> (2,854,349) (1,402,862)
<TOTAL-LIABILITY-AND-EQUITY> 1,755,652 1,112,151
<SALES> 606,685 120,737
<TOTAL-REVENUES> 606,685 120,737
<CGS> 992,728 252,194
<TOTAL-COSTS> 2,566,621 1,085,743
<OTHER-EXPENSES> 0 0
<LOSS-PROVISION> 0 239,800
<INTEREST-EXPENSE> 717,525 372,101
<INCOME-PRETAX> (2,673,446) (1,723,367)
<INCOME-TAX> 0 0
<INCOME-CONTINUING> 0 0
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> (2,673,446) (1,723,367)
<EPS-BASIC> (.52) (.48)
<EPS-DILUTED> (.52) (.48)
</TABLE>
