U.S. SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 10-QSB
(Mark One)
[X] Quarterly report pursuant to section 13 or 15(d)of the Securities Exchange
Act of 1934
For the quarter ended May 30,1997.
[ ] Transition report under section 13 or 15(d) of the Securities Exchange Act
of 1934 [no fee required]
Commission File Number 33-3560D
CONECTISYS CORP.
(Name of small business issuer in its charter)
Colorado 84-1017107
(state or other jurisdiction (I.R.S. Employer
Incorporation or Organization Identification No.)
7260 Spigno Place 91350
Agua Dulce, California
(Address of principal (Zip Code)
executive offices
Issuer's telephone number: (805) 268-0305
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: None
Check whether the issuer (1) has filed all reports required to be filed by
Section 13 or 15(b) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and
(2)has been subject to such filing requirements for the past 90 days. [X]Yes[]No
Check if there is no disclosure of delinquent filers in response to Item
405 of Regulation S-B Contained herein, and disclosure will be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in part III of this Form 10-QSB. [X]
State Issuer's revenues for it's most recent fiscal year: $ 111,163
The aggregate market value of the voting stock held by non-affiliates
computed by reference to the price at which the stock was sold on May 30, 1997
was $ 624,635. For the purpose of the foregoing calculation only, all directors
and executive officers of the registrant have been deemed affiliates.
The number of shares outstanding of each of the issuer's classes of common
equity, as of May 31, 1997 was 2,796,279
PART I
Item 1. Description of Business
General
Conectisys Corporation, formerly known as BDR Industries, Inc. (the
"Company"), was incorporated on February 3, 1986, in Colorado. In November
1995, the name of the Company was changed to Conectisys Corporation, and is in
the development stage.
For several years prior to 1994, the Company was a shell corporation with no
assets and no revenues. Originally, the Company was engaged in the manufacture
of yachts but that business ultimately was unsuccessful. Creditors foreclosed
on the assets of the Company in lieu of foreclosure on the Company.
During 1995, the Company's only operations consisted of Creative Image
Products, Inc., a wholly owned subsidiary acquired in 1994 that manufactured
organic insecticide. The Company invested in substantial improvements to the
factory and equipment, but sales anticipated for fiscal 1995 did not occur.
Management of Creative Image Products requested that the Company "unwind" its
acquisition of Creative Image Products by the Company due to the financial needs
of Creative Image Products. The Board of Directors of the Company agreed.
Creative Image Products signed a promissory note in the amount of $1,302,500
for the funds previously advanced to Creative Image Products by the Company.
In September 1995, the Company purchased 80% of the outstanding stock of
TechniLink, Inc., a California corporation ("TechniLink"), and 80% of the
outstanding stock of PrimeLink, Inc., a Kansas corporation ("PrimeLink"), in
exchange for an aggregate of 200,000 shares of common stock in the Company and
500,000 shares of common stock for licenses and technology. As a result,
TechniLink and PrimeLink became subsidiaries of the Company.
TechniLink has developed the Cube 2001 series for the monitoring and
controlling of various devices in the petroleum and gas industry.
PrimeLink has developed a product line that uses cutting edge communications
to assist in the monitoring of meters for utility companies and the petroleum
industry. This technology, while eliminating the need for a meter reader, is
more significant in enabling the utility companies to utilize energy
conservation and, in the case of power companies, re-routing of electrical power
to areas where it is needed. The devices are also in use in vending machines to
monitor sales and functions of the vending machine without the physical
inspection usually needed.
Business and Products of PrimeLink
Government regulation and the need to lower operational costs are requiring
many businesses to acquire operating information from widespread or mobile
operations. The cost of the computer equipment to acquire the data is only part
of the overall costs. Communication equipment capital cost and recurring
charges are often higher than the cost of the computer.
An opportunity exists to combine a reliable low-cost communications technology
with proven remote data monitoring to provide a unique solution to these cost-
sensitive, data acquisition opportunities. The key technologies are narrowband
PCS, which has been developed by Mtel Corporation for Two-Way paging, and data
communications protocol conversion for pipeline control systems. PrimeLink and
Mtel's SkyTel business unit have agreed to jointly market narrowband-PCS data
acquisition solutions.
Potential applications are numerous, including electric and gas utility
meters; pipeline gas flow measurement; vending machine monitoring; and
transportation monitoring and tracking are just some of the potential
applications of the technology. PrimeLink proposes to enter the market with a
gas pipeline product (about 600,000 unit market) because of the experience of
the principals of PrimeLink, but the electricity meter market (over 65 million
unit market) is being aggressively pursued as PrimeLink establishes itself.
The key concept behind PrimeLink's business is the unique combination of
existing technologies to provide low cost monitoring and control equipment
combined with low cost communications for sites where real-time monitoring is
not required. The monitoring and control products will be based on an industry-
leading data acquisition software kernel. The benefit of using this kernel is
that it is well proven and already supports a wide range of industry
communication protocols.
PrimeLink's current product line consists of the following:
TransComm- This product provides Two-Way access to SkyTel 2 Way
networks which provides inexpensive data transfer services for small amounts of
data. TransComm is ideal for applications where small amounts of data (about
128 bytes per day) are required infrequently, such as electric utility meter
reading, gas utility meter reading, pipeline gas flow measurement, pipeline
cathodic protection monitoring, pipeline leak detection monitoring,
transpiration diagnostic and location monitoring, etc.
UtiliComm- This product comprises a TransComm unit with a single
board computer (or remote terminal unit (RTU)) connected to the electric or gas
meter and to the narrowband PCS transceiver. The RTU will include programming
to monitor the meter, calculate energy usage and send the data to the utility
company on a regular schedule and in a data format which is compatible with
their central computer system.
LiquiComm- This product comprises a TransComm unit with a single
board computer (the same board used in the UtiliComm unit) connected to the oil,
water, or other liquid meter and to the narrowband PCS transceiver. The RTU
will include programming to monitor the meter, calculate liquid flow based on
pulse inputs programming to monitor the meter, calculate liquid flow based on
pulse inputs from the meter and send the data to the owner/operator on a regular
schedule and in a data format which is compatible with their central computer
system.
FloComm- This product comprises a TransComm unit with a single board
computer (the same as the UtiliComm RTU except for the addition of three analog
inputs) connected to the gas flow measurement orifice run and to the narrowband
PCS transceiver. The RTU will include programming to monitor the meter,
calculate gas flow and send the data to the owner/operator on a regular schedule
and in a data format which is compatible with their central computer system.
PrimeServer- In order to simplify integration of the PrimeLink data
into a customer's system, we will provide a gateway product called PrimeServer
which handles all network interaction and delivers the data to the customer in
the optimum protocol and physical interface, i.e., MODBUS over Ethernet.
PrimeServer may be located at the customer's site or at Mtel's Networking
Operating Center (NOC).
Although the standard package is small, low-powered and very cost-effective,
PrimeLink will offer options which are designed to provide flexible, customer
orientated solutions.
Initial marketing efforts will be concentrating on launching FloComm. The
primary reason for this approach is the experience the key personnel have in the
gas pipeline market. The market is a niche market compared to remote electric
meter reading and has therefore not attracted the interest of giants such as
AT&T.
The target market for FloComm is replacement of mechanical chart recorders
(MCR) on gas pipelines. Some 600,000 sites have been identified by the Gas
Research Institute.
On February 15, 1996, PrimeLink entered into a Joint Marketing and Development
Agreement ("Agreement") with SkyTel Corp. pursuant to which PrimeLink agreed to
customize and develop a paging technology based receiver for use in connection
with SkyTel's Two-Way wireless messaging services and system (the "SkyTel
Network") and both parties agreed to assist each other in the marketing of the
PrimeLink product and the SkyTel Network. The Company believes that the joint
marketing of its product with the SkyTel System could have significant potential
for the Company. However, the Agreement does not require any purchases of the
PrimeLink product by SkyTel, and may not necessarily result in any significant
revenues for the Company. The Agreement is for a two-year term, and will
automatically renew for additional one-year terms until terminated by either
party.
On February 16, 1996, PrimeLink received an order from SkyTel for the
production of 1,000 serial interface board units to be utilized by Coca Cola.
Although the revenues to be received by the Company from this order are not
material, the Company is hopeful that additional orders will be received for the
units. To date, however, no other orders have been received, and there can be
no assurance that there will be any additional orders. The above mentioned order
from SkyTel, was transferred in April 1996, Coca Cola requested that PrimeLink
sell and consult directly to Coca Cola.
In June of 1996, PrimeLink signed a pilot project with Wiltech a division of
Williams Natural Gas. The total value of this project is approximately 1.8
million dollars. The initial Flowcomm units for this pilot were installed in
November and are transmitting data very successfully.
In November 1996, PrimeLink delivered its first UtiliComm units to Transdata.
These units are the first for electric meters from PrimeLink. Transdata
supplies Enron Corp. with these meters. To date, other orders have been
received, but of no significant dollar value and there can be no assurance that
there will be any additional orders.
In April 1997, PrimeLink signed a lease agreement with Enogex Inc., a
subsidiary of OEG Energy Group. PrimeLink will provide the equipment to Enogex
for the purpose of wireless data gathering from remote gas wells. The lease is
for an initial 26 pilot sites. After 45 days of the pilot, the lease calls for
an additional 224 units to be installed within 18 months. The lease will
continue for an additional 48 months.
In late April 1997 Primelink signed a Development and Marketing Alliance with
Williams Wireless. The alliance provides for joint development of a wide range
of products and cross licensing of the technology. This agreement provides
Primelink with immediate entry into the fastest growing new wireless market in
the country: data gathering and remote monitoring.
In May 1997, PrimeLink received an order for 150 of its TransComm units from
Corn Dancer Inc. to be utilized in their water vending machines. A portion of
the purchase order is to develop host soft ware exclusive for the needs of Corn
Dancer Inc.
In June 1997, PrimeLink received from Sonat marketing Company LP an order for
a pilot program to begin in August of this year.
Business and Products of TechniLink
TechniLink Technology Manufacturing, Inc. ("TechniLink") is a multifaceted
corporation who provides products and services for the Industrial Automation
Market. The products consist of hardware and software to ensure an industrial
plant's ability to automate more efficiently.
For many years people have opened and closed valves manually in the
petrochemical and utility industries. In some cases, they still do. In most
modernized industrial plants today, MOVs, AOVs and motors have replaced people.
This process is called Industrial Automation. Major U.S. industrial related
corporations are down-sizing internally to compete in a global environment.
The main technology that TechniLink is involved with is LON (local operating
network) by Echelon. This technology creates an easy to use, and very
interoperable system. By dramatically reducing the installation cost of a
computer controlled valve and motor network, customers are now able to afford
the benefits associated with around-the-clock diagnostics, auditing
documentation and sequence monitoring.
The LonWorks based "Cube 2001" System offers the following key benefits:
Substantial cost savings from simplified design and minimization of
installation costs.
Significant reductions in material quantities with regard to cables,
distribution and junction boxes.
Sophisticated software packages providing historical audits of each
device on the network and continuous serial/digital diagnosis of an
array of vital functions.
Major reductions in the space required for control room apparatus.
High flexibility in the planning or expansion of each installation.
By far the most important benefits offered by the Cube 2001 are improved
efficiency and productivity through reductions in labor, maintenance and
downtime costs.
The CUBE's unique advantages using the neuron chip by Echelon can be
expected to arrive at a winning position in the consumer's mind. Now the
customer can install a device knowing he can hook up other devices and is not
locked to sole source vendors. The resulting selling basis for our product is
interoperability. Simply stated, the product will work with any other Lon based
product and all other Lon based products will work with it. The Company
believes that the product's ease of installation makes the product as versatile
on retrofit as anything on the market.
Other Matters
On January 2, 1996, S.W. Carver ("SWC") a California corporation owned
primarily by Robert Spigno, loaned the Company an additional amount of $50,000.
The loan is payable on demand and the unpaid principal is due and payable
December 15, 1996. The loan bore interest at the rate of 10% per annum.
Interest was waived to the $50,000 loan at the same time 800,000 restricted
share was issued for collateral to the $400,000 loan from SWC to TechniLink. The
restricted shares that were issued to this transaction were returned to the
Corporation in June of 1996 and interest was reinstated to the loans, There
has been no principal or interest payments towards the $ 400,000 note as of
November 30, 1996. In March of 1996 SWC sold to the company's subsidiary
TechniLink a vehicle for the use of its president. The cost of the vehicle was
$12,000 on account. The terms of this note are 3 years at 12% interest No
interest or principal was paid in fiscal 1996 for this loan The total
outstanding principal to SWC is $ 513,311 as of November 30, 1996
On February 21, 1996, the Company entered into an Investment Banking
Agreement (The Agreement) with Chalet Capital Corp. (CCC) The term of the
agreement is for a period of two years. CCC will perform investment banking
services consisting of consulting on the public securities market, investor
relations, possible merger candidates. In consideration of their services the
Company shall grant an option to purchase 1,000,000 shares at $2.50 per share.
As part of the agreement CCC was required to exercise its option for 100,000
shares within 30 days for a total of $ 250,000. CCC as of May 1996 paid the
company approximately $ 250,000. CCC has also performed consulting services to
the Company. In October the Company issued 130,800 shares to CCC. The company
through an S-8 registered 1,000,000 shares per the Agreement. The 130,800 shares
were returned and converted to free trading shares per the agreement. At the
Company's annual meeting in November, attending shareholders expressed concern
over the S-8. The Company through an 8-K canceled the issuance of any other
shares in regard to the S-8.
In February 1996, the Company and Hollywood Trenz, Inc. ("HTNZ") mutually
agreed to terminate the ADA Sign Purchase Agreement and Agreement for the
Purchase of Common Stock between them dated March 23, 1995 and to return the
shares transferred pursuant to that agreement. As a result, the Company
returned to HTNZ 600,000 shares of HTNZ common stock and HTNZ returned to the
Company 300,000 shares of the Company's common stock.
On March 19, 1996, the Board of Directors of the Company authorized the
Company to open an account with Oppenheimer & Co., Inc. In connection
therewith, certificates for an aggregate of 1,000,000 shares of the Company's
common stock which are beneficially owned by Robert A. Spigno were deposited
with Oppenheimer. It is the Company's hope that Oppenheimer will become a
market maker in the Company's common stock.
On July 17, 1996, the Company issued 500,000 shares to Adventuress
Productions Inc. for the purpose of securing a loan. This transaction was not
completed and the shares were returned to the Company in September 1996. These
shares are not included in the outstanding shares
On July 25, 1996, Conectisys signed an agreement with Avonni Holding Group
Inc. (AHG). The agreement was for the investment of 6,000,000 shares of Rule
144 Common Stock with Avonni for 366 days The return on this investment would
have been approximately 12% if funds were delivered, but because of the
instability in the stock over the following months funding could not be secured
and the stock certificates were returned to the Company, and are not included
in the outstanding shares.
On August 20,1996 1,000,000 and 300,000 shares of Rule 144 common stock
were issued to Lloyd Hawk and Associates and Savoia Corporation respectively,
for a loan secured by the shares. The shares were returned, when funding could
not be acquired. These shares are not included in the outstanding shares.
On September 3, 1996, 1727 shares of Rule 144 common stock were issued to
Micro Automation Development (MAD) to reduce debt in the Company's subsidiary
TechniLink. The debt was for services provided to TechniLink
On September 12, 1996, The Company issued to Internet Stock Guide Inc.,
10,000 shares of Rule 144 common stock for payment of an advertising contract
on there World Wide Web and consulting services. The agreement is for a one year
term with the option of a second year
On September 23, 1996, The Company issued 4155 shares of Preferred stock to
Robert Spigno, President of Conectisys Corp. for the reduction of compensation
accrued to Mr. Spigno.
On December 10, 1996, The Company signed a promissory note to the order
of Black Dog Ranch LLC (BDR). This note was rewritten in June 1997 and reduced
to $ 171,396.50 to properly reflect the amount that the company received from
the sale of stock that BDR owned.
On March 26, 1997, the Company agreed to issue Noel Guardi 4,550 shares of
its restricted common stock for partial payment of services rendered.
On April 4, 1997, Conectisys issued 16,000 shares of restricted common
stock to settle its law suit with the former director Case # 96 cv 2585
The Company entered into License agreements with the Presidents of both
Primelink and Technilink. The license agreements were entered into on September
20, 1995, in connection with the acquisition of Primelink and Technilink (see
Note 1), and are for a period of five years. As consideration for these license
agreements the Company issued each of the licensee 250,000 shares of its
restricted common stock and will pay the licensee a royalty of 5% of net sales
of the applicable product. In addition, in the event of a sale of the license or
the acquisition or merger of Technilink or Primelink, a royalty sum of 20% of
the sales price of the license shall be paid to the licensee, the sales price
shall not be less than 1,500,000 . the licenses were valued at the fair market
value of the stock issued to obtain the licenses.
Competition
Conectisys with its subsidiaries PrimeLink and TechniLink have minimal
competition in most markets. PrimeLink's device FloComm that replaces mechanical
chart recorders in the field for the petro-chemical industry has no known
competition to date using Two-Way paging technology. Mechanical chart recorders
are predominant in the industry today. The closest competitor uses spread
spectrum radio which the FlowComm product is adaptable to. The TransComm unit is
utilized in the vending machine market has no competition using SkyTel's Two-Way
Paging technology. Cellular and dedicated line telephone are the closest
competition to the TransComm device The device that PrimeLink uses for
automatic meter reading (AMR) has the most competition. The major difference
between the competition and PrimeLink's device is that the competition utilizes
spread spectrum radios that either have a drive by collection process or require
the build out of cellular transmission sites. PrimeLink in connection with
SkyTel uses Two-Way Paging technology to accomplish this without the extra costs
.
TechniLink's Cube 2001 system for real time control of valve and actuators,
are believed to have no known competition using the Echelon neuron chip
currently. The most competitive forces in the CUBE's market fall in three
categories:
A] Powell C2, a mechanical relay technology that has been around for over
30 years. This type of system is susceptible to random operation from lightning
strikes. TechniLink's Cube 2001 uses processor technology. Processor technology
is a viable replacement to mechanical relays and is not subject to the random
operation condition
B] DCS & PLC based I/O systems. DCS (Digital Control System) & PLCs
(Programmable Logic Controller) are micro processor based industrial type
computers. These are inherently expensive. The cube 2001 is much more cost
effective, low voltage keeps wire replacement to a minimum, self acquiring
network keeps programming costs down
C] MANUFACTURERS SYSTEMS are created by the actuator manufacturers. It gets
a lot of notoriety because the manufacturers that sell actuators to the
refineries also want to control their future. This is best done by supplying the
control system for the actuators. TechniLink's system will work with any
actuator that needs control (universal control) therefore releasing the plant
from being "locked" into a system that may not conform to their needs The CUBE
2001 System is inexpensive to maintain as well
Suppliers
The company has three key suppliers: Echelon Corporation, producers of the
neuron processor chip, SkyTel; providers of the telecommunication network; and
Motorola, producers of the Two-Way pager component.
Both subsidiaries, PrimeLink and TechniLink will be using outside vendors
for the assembly of their respective products. This will reduce capital costs
since there are a vast number of vendors to choose from.
Customers
Revenues for the Company have come from two major companies. Wiltech and
Coca Cola. Wiltech is a division of Williams Natural Gas, One of the largest
natural gas suppliers in the U.S.
Proprietary Information
The Company relies on proprietary knowledge and employs various
methods to protect its trade secrets, concepts, ideas and designs. However,
such methods may not afford complete protection, and there can be no assurance
that others will not independently develop such processes, concepts, ideas and
designs. The Company, through its subsidiaries, manufactures and markets its
technology. However, such technology is not presently patented in the United
States, and although the Company has undertaken to file one or more applications
for U.S. patents pertaining to the technology, there can be no assurance that
patents will ultimately be issued, Further, the possibility exists that the
technology may be deemed to infringe upon other technology which is already
patented or subject to an application filed prior to the Company's application
when filed, In that event, the Company could be subject to liability for damages
for infringement and could be required to cease production of equipment until
appropriate licensing arrangements are made, The Company could also be subject
to competition from the party deemed to be the owner of the patent pertaining to
the technology.
Employees
As of May, 1997, the Company and its subsidiaries employed 8 full time
employees, of whom 3 are officers of Conectisys. At this time there are no
grievances of any kind from the employees of the Company.
Item 2. Description of Property
The Company's principal executive offices are located at 7260 Spigno Place,
Agua Dulce, California 91350. The space is leased from SWC, a related party. The
lease is for office space (1090 Square feet) and equipment to run the day to day
operations of the corporation. The lease was for a period 11 months at $
2000.00 per month that expired in December 1996. The lease was renewed in
January 1997 for an additional 12 months and there is an option to purchase at
the end of the period The terms of the lease are below what could be obtained
from an outside 3rd party. Management believes that its corporate offices are
suitable and more than adequate for its present needs. There are no plans to
lease any additional space.
The location for PrimeLink is 9875 Widmer Rd, Lenexa, Kansas 66215.
PrimeLink rents approximately 1100 square feet of space from Johnson County
Business Tech Center for $ 1200.00 per month.
TechniLink is located at 7260 Spigno Place Agua Dulce, CA 91350
Item 3. Legal Proceedings
There is one legal proceeding pending to which the Company is a party. The
case, Securities and Exchange Commission (Plaintiff) Vs. Andrew S. Pitt,
Conectisys Corp., Devon Investments Advisors, Inc., B & M Capital Corp., Mike
Zaman, and Smith Benton & Hughes, Inc. (Defendants) Civil Case # 96-4164. The
Case Alleges that a fraudulent scheme was orchestrated and directed by the
defendants to engage in the sale and distribution of unregistered shares of
Conectisys by creating the appearance of an active trading market for the stock
of Conectisys and artificially inflating the price of its shares. In the suit
the SEC seeks disgorgment of profits from illegal activity and permanent
injunctions from violating securities laws. The SEC does not seek any civil
penalties from the Company.
The Company brought suit against former directors and officers of the
Corporation. The suit is for the improper issuance of stock to the former
Directors and Officers. The case has been settled as described in the Other
Matters section
Item 4. Submission of Matters to a Vote of Security Holders
Matters were submitted to a vote of security holders during the Annual
Meeting of Stockholders held on November 15, 1996:
1. The election of 3 directors to serve until the next annual meeting
and until their successors are duly elected.
2. To consider and ratify the amendment to the Articles of
Incorporation changing the name to Conectisys Corporation.
3. To conduct such other business as may properly come before the
meeting.
All directors and matters were voted on and through a majority of votes
were accepted.
PART II
Item 5. Market for Common Equity and Related Stockholder Matters
When traded, the Company's shares are traded on the NASDAQ electronic over-
the-counter bulletin board. Bid and asked quotations are reported on the
bulletin board under the symbol CNES. As of January 10, 1997, there were three
market makers quoting the stock. The following table indicates the range of
high and low Ask/Bid information for the common stock for each fiscal quarter
since December 1, 1993: All prices have been converted to reflect the 250-1
reverse stock split.
Quarter ending Bid Ask Bid Ask
High High Low Low
November 93 0 25.000 0 25.000
February 94 0 25.000 0 25.000
May 94 .250 25.000 .250 25.000
August 94 1.000 25.250 .250 25.000
November 94 11.250 37.500 1.000 5.000
February 95 13.125 15.000 10.000 13.250
May 95 12.875 19.000 1.000 5.250
August 95 9.000 19.500 .125 5.000
November 95 7.063 12.000 2.500 5.500
February 96 12.000 15.000 6.125 6.125
May 96 20.625 22.000 10.875 12.00
August 96 22.750 25.000 6.000 6.000
November 96 12.625 15.000 .500 4.000
February 97 11.50 7.50 1.00 .50
May 97 2.25 2.37 .75 1.00
Current July 11, 1.01 1.24
1997
The above quotations reflect inter-dealer prices, without retail mark-up,
markdown or commission and may not represent actual transactions.
The Company was advised by the Division of Enforcement of the Securities
and Exchange Commission that the Division is conducting an investigation
concerning recent trading in the Company's common stock. The price of the
common stock had risen dramatically from February 1996, through June 1996,
despite the fact that the Company continues to have operating losses and had not
received any material purchase commitments from customers. The price of the
stock fell when the Securities and Exchange commission placed a temporary
restraining order on Smith Benton and Hughes, a principal market maker at that
time.
As of November 30, 1996, there were 551 shareholders of record of the
Company's common stock.
Holders of the common stock are entitled to receive such dividends as may
be declared by the Company's Board of Directors. The Company has not declared
any cash dividends on its common stock since inception, and its Board of
Directors have no present intention of declaring any dividends.
Item 6. Management's Discussion and Analysis or Plan of Operation
Results of operations
The Company realized a net loss on operations of $ 288,671 for the Quarter
ended May 31, 1997, with $ 142,002 of revenues. Operations for the 6 month
period ended may 31, 1997 resulted in a $ 599,015 net loss with revenues of
$208,094 The Company in the 6 month period ended May 31, 1996, had losses of
$ 1,097,418 with no revenues.
Plan of operation
Loss on operations for the Company for the second quarter ended 1996 was
$1,097,418 as compared to a loss of $ 599,015 in fiscal 1997. This is a 45.4%
reduction in losses from the prior year in the same period. The Company will,
over the next 12 months, rely on the revenues from its subsidiaries, collection
of notes receivable and additional funding through the sale of common stock or
loans colateralized through common stock. The decrease in losses was a result
of reducing interest expenses, in 1996 $ 551,335 were in the first quarter
alone. Revenues in the first quarter fiscal 1997 were $ 66,092 and $ 142,002 in
the second quarter as compared to $ 0.00 in the First and second quarter of last
year. The $ 208,094 in revenues are 187% of the entire revenues ($111,163)
obtained in 1996 Development for the subsidiaries' products will be ongoing
throughout the year with no expected purchase of significant equipment or plants
at this time. There is no expected significant change in the number of employees
at this time Pilot projects that were started in the third quarter of 1996
should roll over into full production by the end of the third quarter in fiscal
1997, generating larger revenues in the beginning of the third quarter.
Additional pilot projects are in negotiations and are expected to come on-line
at the beginning of the third quarter of 1997
Liquidity and capital Resources
As of May 31, 1997, the Company had a negative working capital of
$ 1,154,227, consisting of $ 73,433 in current assets and $1,227,660 in
current liabilities. The Company had a negative working capital of
$ 1,177,968 at quarter ended February 28, 1996, This is a 2 % increase in
working capital compared to May 31, 1996. The Company is dependent on
achieving profitable operations through its recent acquisitions and
the collection of outstanding receivable to continue as a going concern.
The Company had total assets of $ 2,237941, at May 31, 1997, and total
liabilities of $ 1,952,179. Shareholder equity is $ 285,762 as compared to
$1,574,491 quarter ended February 28, 1996.
Cash Flows
The Company had a net loss for the second quarter ended May 31, 1997, of
$ 599,015. The cash used in operations toward this loss was $ 11,726 . The
largest area of loss was the result of non-cash transactions to the Company $
242,175, (40.4%), was the result of amortization and depreciation. The cash used
in investing was $ 42,545 (7%), of the total loss.
Management's plans for correcting these deficiencies include, the future
sales of the licensed products and to raise capital through the issuance of
common stock to assist in providing to the company the liquidity necessary to
retire the outstanding debt and meet operating expenses. In the longer term, the
Company plans to achieve profitability through operations of the subsidiaries,
however there are no assurances that profitability will be achieved.
Effect of inflation
Inflation did not have any significant effect on the operations of the
company during the fiscal year ending November 30, 1996. Further, inflation is
not expected to have any significant effect on future operations of the Company.
The Financial Accounting Standards Board (FASB) Impact
Statement of FASB standards No. 121 "Accounting for the impairment of long
lived assets and for long lived assets to be disposed of" (SFAS No. 121) is
effective for financial statements for fiscal years beginning after December 15,
1995. The new standard establishes new guidelines regarding when impairment
losses on long lived assets, which include plant and equipment, certain
identifiable intangible assets and goodwill, should be recognized and how
impairment losses should be measured. The Company does not expect adoption to
have a material effect on its financial position or result of operations SFAS No
123 "Accounting for stock based compensation" (SFAS No 123) Issued by the FASB
is effective for specific transactions entered into after December 15, 1995.
While the disclosure requirements of SFAS No 123 are effective for financial
statements for fiscal years beginning no later than December 15, 1995. The new
standard establishes a fair value method of accounting for stock based
compensation plans and for transactions in which an entity acquires goods and
services from non-employees in exchange for equity instruments. At the present
time, the Company has not determined if it will change its accounting policy for
stock based compensation or only provide the required financial statement
disclosures. As such, the impact on the Company's financial position and results
of operation is currently unknown
On March 3, 1997, FASB issued Statement of Financial Accounting Standards
No. 128, Earnings per Share (SFAS 128). This pronouncement provides a different
method of calculating earnings per share than is currently used in accordance
with APB 15, Earnings per Share. SFAS 128 provides for the calculation of Basic
and Diluted earning per share. Basic earnings per share includes no dilution and
is computed by dividing income available to common share holders by the weighted
average number of common shares outstanding for the period. Diluted earnings per
share reflects the potential dilution of securities that could share in the
earning of the entity, similar to fully diluted earnings per share. This
pronouncement is effective for fiscal years and interim periods ending after
December 15, 1997; early adoption is not permitted. The Company has not
determined the effect, if any, of adoption on its EPS computation(s)
Item 7. Financial Statements
Financial statements are Unaudited and included herein beginning on page F1
and are incorporated herein by this reference.
Item 8. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
In April 1996 the Company chose to dismiss Cordovano & Co. and engaged BDO
Seidman LLP, Los Angeles, Ca. The dismissal was at the recommendation and
approval of the Company's Board of Directors. There were no disagreements with
the former accountants on any matter or accounting principles or practices,
financial statement disclosure, or auditing scope or procedure.
PART III
Item 9. Directors, Executive Officers, Promoters and Control Persons;
Compliance With Section 16(a) of the Exchange Act
Directors and Officers
The Directors and Officers of the corporation, all of whose terms will
expire at the next annual meeting of the shareholders, or at such time as their
successors shall be elected and qualified, are as follows:
Names Position
Robert A. Spigno Chief Executive Officer, President, and Chairman of
the Board
Richard Dowler Chief Financial Officer and Director
Patricia A. Spigno Secretary, Treasurer and Director
Robert A. Spigno, President and Chief Executive Officer, Director
Robert A. Spigno, age 42, has been Chief Executive Officer, President and
Chairman of the Board of the Company since August 1995. Prior thereto, Mr.
Spigno received his General Contractors license from the State of California in
1978, and then ventured out to the Home Building Industries as a sole
proprietor. In 1989, he formed a California corporation named S.W. Carver
Corporation, which Mr. Spigno served as, President and Chairman of the Board
since 1989.
Richard Dowler, Director, Chief Financial Officer Controller
Richard Dowler, age 36, is currently the Chief Financial Officer and
Director of Operations for the Company, serving in such positions since August
1995. Prior to this he was the Director of Operations for S.W. Carver Corp. for
five years.
From 1986 to 1990, Mr. Dowler was General Manager for a construction firm,
overseeing the estimating, purchasing and accounting departments. Mr. Dowler
has been directly responsible for up to eight projects running simultaneously
with over one hundred fifty employees with budgets of over $ 1,000,000 .
Patricia A. Spigno, Director, Secretary and Treasurer
Patricia A. Spigno, age 38, has been Secretary, Treasurer and a director of
the Company since August 1995. Prior thereto, she has for nineteen years acted
as a key management person in the operation of privately held companies. Since
January 1990, she has acted as Secretary and Treasurer of S. W. Carver Corp.
Her involvement in these and other companies has been from the conceptual stage
of the formation of the company through startup and then on to the daily
operations.
Her skills in the area of detailed accounting has aided her in the duties
of asset management. She has been responsible for all aspects of accounting in a
company with over two hundred employees and an average annual gross sales of
several million dollars. Mrs. Spigno has managed all banking related
transactions including specific account management, wire transfers, letters of
credit, and payroll. She has also managed all aspects of escrow accounting. She
currently holds an active California Real Estate license. Mrs. Spigno is the
spouse of Robert A. Spigno.
Significant Employees
Don Wallace, age 52, is currently serving as President & CEO of PrimeLink
Inc. a subsidiary of Conectisys Corp. Prior to this he was President & CEO of
Arcom Control Systems Inc., Kansas City, MO. from September 1991, to November
1995.
Mr. Wallace was responsible to British ownership of Arcom for complete
operation. The owner of Arcom is a publicly traded company with total sales of
$250 million. Achieved sales in 1995 of $6 million with a profitable operation.
Arcom develops and markets various computer-based process control and data
communications products for the oil and gas industry. Mr. Wallace developed
relationships and alliances with major users and manufacturers such as Williams
Companies, Saudi Aramco, Bailey Controls and Honeywell. He also developed
business relationships in Saudi Arabia and South America.
Karl Elliott, age 41, is currently Serving as President and Chairman of the
Board of TechniLink Technology Manufacturing Inc. a subsidiary of Conectisys
Corporation. He has served in this capacity since February 1995. Prior to this,
from November 1994 to February 1995 he owned a sole proprietorship providing
control system design services. From October 1988 to March 1995 He served as the
MIS Manager/ Systems Integration Manager for Valve Systems and Controls, A Crane
Company.
Responsibilities included implementation of the MIS System. The system is
an IBM RISC 6000 using Sysbase RDMS. Software was developed using AIX (UNIX) and
SQL. The system supports all aspects of the four district offices and one
hundred plus employees. Other accomplishments include the creation of Systems
Integration Division. Products that came out of this division 2 wire base field
networks, Pole Top RTU and the Universal Network Manager (UNM). The UNM is a STE
based 16 port multiple protocol communication controller
Item 10. Executive Compensation
Renumeration
Cash renumeration accrued for services in all capacities rendered to the
Company ended November 30, 1996, to all directors and officers as a group was as
follows:
Name of individual Capacities in Cash or cash equivalent
or number of persons in which served forms of remuneration
in group
Robert A. Spigno CEO/President $ 18833
All officers and directors
as a group (three persons) $ 39598
The Company has plans for profit sharing, insurance and stock option plans
for the benefit of its officer, directors or other employees for fiscal year
1997, but has not yet adopted any such programs. In 1994, the Company
established a compensatory benefit plan, pursuant to which up to 20,000 shares
of common stock may be issued to persons that the Board of Directors deems are
owed some form of compensation for services to the Company.
Stock Option Exercises and option values
Fiscal year end option values
Number of Unexercised Value of Unexercised, In
Option Shares at Fiscal the Money Options at
Year End Fiscal Year End
Name Exercisable Unexercisable Exercisable Unexercisable
Robert Spigno 1,471,195 0 $ 8,827,170 0
Patricia Spigno 500,000 0 $ 3,000,000 0
Richard Dowler 500,000 0 $ 3,000,000 0
Employment Contracts
On December 4, 1995, the Board of Directors approved employment agreements
with its executive officers (who also constitute the Board of Directors) and the
payment of restricted stock to the officers for their past services. These
agreements are incorporated by reference to the 10-K for the year ended
November 30, 1995
Item 11. Security Ownership of Certain Beneficial Owners and Management
As of February 28, 1997, the Company had 2,796,279 outstanding shares of
common stock. Each common share entitles the holder to one vote on any matter
submitted to shareholders for approval. The Company has authorized 1,000,000
shares of Class A Preferred Stock, $1.00 par value per share, of which 20,500
shares currently are issued and outstanding. Preferred Class A stock has 100 to
1 voting rights. Also authorized are 1,000,000 shares of Class B. Preferred
Stock, $1.00 par value per share. Class B Preferred stock has conversion rights
of 10 shares common stock to 1 share Preferred Class B of which no shares
currently are issued and outstanding.
Beneficial Owners Owning Number Of Percentage
5% or more Shares of common
Stock
Karl E. Elliott 350,000 12.52%
Patricia A. Spigno (2) 28,805 1.03%
Robert A. Spigno (1) 355,426 12.71%
Masha Post Commercial 229,962 8.22%
Trading
Donald I. & Elizabeth V. 350,000 12.61%
Wallace
Claudia J. Zaman 355,368 12.71%
Frank Bellusci 260,000 9.30%
Security ownership of
Management
Richard Dowler 3,494 .12%
Patricia A. Spigno 28,805 1.03%
Robert A. Spigno 355,426 12.71%
Total Directors and 387,739 13.8%
Officers as a whole
Beneficial Owners Owning Number of Percentage
5% or more shares of class A
Preferred
Robert A. Spigno 20,500 100%
(1) Does not include 28,805 shares owned by Patricia Spigno (spouse). The
aggregate beneficially owned by Robert A. Spigno is Shares 384,231 (13.84%)
(2) Does not include 355,426 shares owned by Robert A. Spigno (spouse). The
aggregate beneficially owned by Patricia A. Spigno is 384,231 Shares. (13.84%)
Item 12. Certain Relationships and Related Transactions
In February 1996, the Company's Board of Directors authorized the purchase
of a car for the use of its Chief Financial Officer, Richard Dowler. The
purchase price was approximately $23,000, of which approximately $18,000 was
financed by the Company. The Board of Directors also determined that the
vehicle would be maintained and fueled in full by the Company.
In February 1996, the Company entered into an equipment lease/purchase
agreement with SWC. The lease is for 11 months at a rate of $2,000 per month.
The Company has the right to purchase the leased right for approximately
$83,000. However, the lessor has the right to revoke the purchase option at any
time and for any reason.
The engagement with Carver Accounting Services (CAS), which is owned by
Robert A. Spigno and Patricia A. Spigno. CAS is to maintain the day to day
accounting needs of the company. CAS is included in the general and
administrative expenses.
Effective March 21, 1995, the Board of TechniLink approved the purchase of
a 1990 Ford Bronco from SWC for $12,000. The note for the vehicle is at 10%
interest until March of 1998 No principal or interest has been paid toward this
note
Information concerning certain other related party transactions are
contained in response to Item 1 and 11 and which are incorporated herein by this
reference.
Item 13. Exhibits and Reports on Form 8-K
(a) Exhibits
10.1 Lease contract
10.2 Development and Marketing agreement
27.0 Financial Data Schedule
99.0 Financial statements
(b) During the Registrant's fiscal quarter ended May 31, 1997, the
registrant filed the following current reports on Form 8-K:
8-K Filed June 30, 1997
8-K Filed May 28, 1997
8-K Filed May 1, 1997
8-K Filed April 22 1997
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this Report to be signed on
its behalf by the undersigned hereunto duly authorized.
CONECTISYS CORPORATION
Date: July 11, 1997 By /S/ Robert A. Spigno
Robert A. Spigno, President
Pursuant to the requirements of the Securities Exchange Act of 1934, this
Report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Signature Title Date
/S/ Robert A. Spigno Chairman of the Board, July 11, 1997
(Robert A. Spigno) Chief Executive
Officer, President and
Director
/S/ Richard Dowler Chief Financial Officer July 11, 1997
(Richard Dowler) (Principal Financial
Officer and Principal
Accounting Officer),
and Director
/S/ Patricia A. Spigno Secretary, Treasurer July 11, 1997
(Patricia A. Spigno) and Director
CONECTISYS CORP.
Unaudited Consolidated Balance Sheet
May-30-1997
<TABLE>
<CAPTION>
May-30-1997 May-30-1996 Nov-30-1996
Unaudited Unaudited Audited
<S> <C> <C> <C>
Assets
Current Assets
Cash 3,197 31,441 24,495
Accounts Receivable-trade (net allowance for doubtful 70,237 0 35,532
Stock Subscription Receivable 0 0 0
Other Current Asset 0 6,283 0
Total Current Assets 73,433 37,724 60,027
Notes Receivable net (note 4) 446,625 466,625 446,625
Interest Receivable net (note 4) 35,403 0 7,947
Property and Equipment Net (note 5) 134,195 172,335 150,370
Licenses and Technology, net of accumulated amortization 1,543,784 2,178,430 1,727,242
Other Assets 4,500 4,500 4,500
Total Assets 2,237,941 2,859,614 2,396,711
Liabilities and Shareholder equity
Current Liabilities
Accounts Payables 660,532 364,302 338,822
Accrued Compensation (note 9) 172,868 44,961 136,181
Notes Payables (notes 3 and 6)
Related Party 0 508,130 0
Other 247,719 283,911 247,719
Other Current Liabilities 2,218 14,388 12,245
Accrued interest payable 144,323 0 105,417
Total Current Liabilities 1,227,660 1,215,692 840,384
Long term liabilities
Notes Payables (notes 3 and 6)
Related Party 522,953 0 527,830
Other 201,566 0 163,719
Total Long term liabilities 724,519 0 691,549
Minority Interest 0 69,431 0
Shareholders Equity
Preferred Stock - Class A 1,000,000 Shares Authorized 20,500 16,345 20,500
$ 1.00 Par Value, 20,500 Issued and Outstanding
Convertible Preferred Stock - Class B 1,000,000 Shares 0 0 0
Authorized, $1.00 Par Value, -0- Shares Issued and
Outstanding Common Stock - 250,000,000 Shares
Authorized, No Par Value 6,477,220 6,029,574 6,457,221
2,796,279 Authorized Issued and Outstanding
Accumulated Gain (Deficit) During Developement Stage (6,211,958) 4,471,428 (5,612,943)
Total Shareholder Equity 285,762 1,574,491 864,778
Total Liabilities and Shareholders Equity 2,237,941 2,859,614 2,396,711
</TABLE>
CONECTISYS CORP.
Condensed Statement of Operations (6 months ended)
May-30-1997
<TABLE>
<CAPTION>
December 1,1990
(Inception) through
May-30-1997 May-30-1996 May-30-1997
Unaudited Unaudited Unaudited
<S> <C> <C> <C>
Revenues 208,094 0 319,257
Cost of Goods Sold 114,414 0 201,391
Gross Profit 93,680 0 117,866
General and Administrative 678,328 710,925 3,548,945
Bad Debt Write-offs 0 0 1,233,897
Loss From Operations (584,647) (710,925) (4,664,975)
Non-Operating Income (Expense) 26,205 2,727 127,253
Interest Expense (40,573) (440,358) (718,241)
Minority Interest 0 51,138 121,747
Net Loss (599,015) $ (1,097,418) (5,134,216)
Weighted Average Shares Outstanding 2,759,067 2,663,373
Net loss per share (0.22) $ (0.41)
</TABLE>
CONECTISYS CORP.
Condensed Statement of Cash Flows (6 months)
May-30-1997
<TABLE>
<CAPTION>
December 1,1990
May-30-1997 May-30-1996 Nov-30-1996 (Inception) through
Unaudited Unaudited Audited May 30,1997
<S> <C> <C> <C>
Operating activities
Net Income (loss) (599,015) (1,097,418) (2,238,933) (5,134,216)
Adjustments to reconcile net income (loss)
to net cash Provided by (used in)
operating activities:
Depreciation and amortization 242,175 0 519,789 763,234
provision for bad debt 48,810 0 118,611 1,023,296
Stock issued for sevices 19,999 207,961 575,433 1,482,544
Stock issued for interest 0 439,779 446,640 446,640
Minority interest 0 (51,138) (120,569) (121,747)
Changes in operating assets and liabilities
(Increase) decrease in assets
Accounts receivable (34,705) (419) (38,862) (73,148)
Interest receivable (76,266) 0 (95,281) (179,913)
Deposits 0 0 0 (4,500)
Increase (decrease) in liabilities
Accounts payable 321,710 321,369 295,889 660,532
Accrued interest payable 38,906 0 0 38,906
Accrued compensation 36,687 (8,334) 82,886 172,868
Other current liabilities (10,027) 2,266 105,540 107,635
Net cash provided by (used in) operating activities (11,726) (185,934) (348,857) (817,869)
Investing activities
Increase in notes receivable 0 0 0 (1,322,500)
Costs of licenses & technology (39,392) 0 (30,340) (72,984)
Purchase of equipment (3,154) (6,254) (31,535) (61,124)
Net cash from (used) in investing activities (42,545) (6,254) (61,875) (1,456,607)
Financing Activies
Common Stock issued for cash 0 150,000 150,000 560,655
Dividends received 0 0 0 0
Prefferd Stock issuance 0 0 0 16,345
Proceeds from debts
Related party 0 0 150,309 206,544
Other 36,473 126,866 155,203 1,519,310
Payments on debt
Related (3,500) (55,148) (33,245) (36,745)
Other 0 (8,951) (8,951)
Decrease in subscription receivable 0 0 20,000 20,000
Contributed capital 0 0 515
Net cash from (used) in financing activities 32,973 221,718 433,316 2,227,673
Net Increase (decrease) in cash (21,298) 29,530 22,584 3,197
Cash beginning of period 24,495 1,911 1,911
Cash end of period 3,197 31,441 24,495 3,197
Cash paid during the year for
Interest 0 0 41,874 41,874
Taxes 851 0 800 1,650
Non Cash Activities
Common stock issued for
PP&E 0 0 35,362 130,931
Licenses & technology 0 0 0 1,770,000
Repayment of debt 0 200,000 257,469 1,143,279
Services & interest 19,999 645,670 1,017,918 1,960,325
</TABLE>
CONECTISYS CORP.
STATEMENT OF SHAREHOLDERS EQUITY
May-30-1997
<TABLE>
<CAPTION>
Deficit Accumu-
Preferred Stock lated During
Class A Common Stock Development
Shares Amount Shares Amount Stage Total
<S> <C> <C> <C> <C> <C> <C>
Balance, December 1, 1990 (re-entry
development stage) - $ - 212,188 $ 1,042,140 $ (1,042,140) $ -
Shares issued in exchange for:
Cash, May 31, 1993 - - 20,000 1,000 - 1,000
Capital contribution, May 31, 1993 - - 40,000 515 - 515
Services, March 26, 1993 - - 40,000 500 - 500
Services, March 26, 1993 - - 24,000 600 - 600
Net loss for the year ended
November 30, 1993 - - - (5,459) - (5,459)
Balance, November 30, 1993 - - 336,188 1,044,755 (1,047,599) (2,844)
</TABLE>
<TABLE>
<CAPTION>
________________________________________________________________________________________________________________________________
<S> <C> <C> <C> <C> <C> <C>
Shares issued in exchange for:
Services, May 1, 1994 - - 48,000 3,000 - 3,000
Cash, September 1, 1994 - - 355,426 23,655 - 23,655
Services, September 15, 1994 - - 173,986 11,614 - 11,614
Cash, September 26, 1994 - - 60,000 15,000 - 15,000
Cash, October 6, 1994 16,345 16,345 - - - 16,345
Cash, September and
October, 1994 - - 26,400 33,000 - 33,000
Net loss for the year - - - - (32,544) (32,544)
Balance, November 30, 1994 16,345 16,345 1,000,000 1,131,024 (1,080,143) 67,226
</TABLE>
<TABLE>
<CAPTION>
_______________________________________________________________________________________________________________________________
<S> <C> <C> <C> <C> <C> <C>
Shares issued in exchange for:
Cash, February 13, 1995 - - 23,200 232,000 - 232,000
Debt repayment, February 13, 1995 - - 40,800 408,000 - 408,000
Debt repayment, February 20, 1995 - - 95,562 477,810 - 477,810
Acquisition of assets,
CIPI February 1995 - - 575,000 1,950,000 - 1,950,000
Acquisition of assets,
April 5, 1995 (Note 10) - - 300,000 - - -
Cash and services,
April and May 1995 - - 320,000 800,000 - 800,000
Cash, June 1, 1995 - - 10,000 30,000 - 30,000
Acquisition of assets and services,
September 26, 1995 - - 80,000 200,000 - 200,000
Cash, September 28, 1995 - - 825 3,000 - 3,000
Acquisition of assets,
September 1995 - - 700,000 1,750,000 - 1,750,000
Return of assets, CIPI September 1995 - - (554,000) (1,950,000) - (1,950,000)
Net loss for the year - - - - (2,293,867) (2,293,867)
Balance, November 30, 1995 16,345 16,345 2,591,387 5,031,834 (3,374,010) 1,674,169
</TABLE>
<TABLE>
<CAPTION>
________________________________________________________________________________________________________________________________
<S> <C> <C> <C> <C> <C> <C>
Shares issued in exchange for (Note 7):
Cash, February, 1996 - - 27,778 125,000 - 152,779
Debt repayment, February, 1996 - - 200,000 639,779 - 612,000
Services, February, 1996 - - 63,199 205,892 - 205,892
Cash, March, 1996 - - 3,571 25,000 - 25,000
Shares returned and
cancelled, March, 1996 - - (300,000) - - -
Services, April, 1996 - - 267 2,069 - 2,069
Services, September,1996 4,155 4,155 11,727 36,317 - 40,472
Services, October, 1996 - - 130,800 327,000 - 327,000
Debt repayment, November, 1996 - - 47,000 64,330 - 64,330
Net loss for the year - - - - (2,238,933) (2,238,933)
Balance, November 30, 1996 20,500 $20,500 2,775,729 $6,457,221 $(5,612,943) $ 864,778
Net loss for the quarter ended
February 28, 1997 - - - - (310,344) (310,344)
Balance, February 28, 1997 20,500 $20,500 2,775,729 $6,457,221 $(5,923,287) $ 554,434
Shares issued in exchange for
Services, March 1997 - - 4,550 6,879 6,879
Debt, April 1997 - - 16,000 13,120 13,120
Net loss for the quarter ended
May 30, 1997 - - - - (288,671) (288,671)
Balance, February 28, 1997 20,500 $20,500 2,796,279 $6,477,220 $(6,211,958) $ 285,761
</TABLE>
_______________________________________________________________________________
See summary of significant accounting policies and notes to consolidated
financial statements.
F-6
<PAGE>
SUMMARY OF ACCOUNTING POLICIES
Basis of Presentation
The accompanying consolidated financial statements include the transactions
of Conectisys Corporation ( the "Company") and its 80% owned subsidiaries
Technilink, Inc. and Primelink, Inc. All material intercompany transactions and
balances have been eliminated in the accompanying consolidated financial
statements.
Development Stage Company
The Company returned to the development stage in accordance with SFAS No. 7
on December 1, 1990 and during the fiscal year ended November 30, 1995, the
Company completed two mergers and is in the process of developing its technology
and product lines.
Cash Equivalents
For financial accounting purposes and the statement of cash flows, cash
equivalents include all highly liquid debt instruments with original maturities
of three months or less.
Property and Equipment
Property and equipment are recorded at cost. Depreciation is computed over
the estimated useful lives of the assets using the straight-line method.
Property and equipment is estimated to have a useful life of 5-7 years.
Net Loss Per Common Share
Net loss per common share is based on the weighted average number of common
and common equivalent shares outstanding for the periods presented. Common
equivalent shares representing the common shares that would be issued on
exercise of convertible securities and outstanding stock options and warrants
reduced by the number of shares which could be purchased from the related
exercise proceeds are not included since their effect would be antidilutive.
Stock Issued for Noncash Consideration
Shares of the Company's no par value common stock issued in exchange for
goods or services are valued at the cost of the goods or services received or at
the market value of the shares issued depending on the ability to estimate the
value of the goods or services received.
Estimates
The preparation of the financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
SUMMARY OF ACCOUNTING POLICIES (continued)
License Agreements
The cost of acquiring license rights are capitalized and amortized over the
shorter of the estimated useful life of the license or the term of the license
agreement. The licenses are being amortized over a period of five years. At
November 30, 1996, the Company generated some revenues from the licenses it
acquired. Although management has developed a plan to develop and market the
technology, it is reasonably possible that the estimates of expected future
gross revenue will be reduced significantly in the near term due to competitive
pressure. Consequently, the carrying amount of capitalized licenses at November
30, 1996 may be reduced materially in the near term. The carrying value of the
licenses is subject to periodic evaluation and if necessary the amounts will be
written down to their net realizable value.
Technology
Deferred technology costs include capitalized product development and
product improvement cost incurred after achieving technological feasibility and
are amortized over a period of five years.
Income Taxes
The Company has adopted Statement of Financial Accounting Standards
("SFAS") No. 109, which requires the Company to recognize deferred tax assets
and liabilities for the expected future tax consequences of events that have
been recognized in the Company's consolidated financial statements or tax
returns. Under this method, deferred tax liabilities and assets are determined
based on the difference between the financial statement carrying amounts and tax
basis of assets using the enacted rates in effect in the years in which the
differences are expected to reverse.
New Accounting Pronouncements
Statement of Financial Accounting Standards No. 121, "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of"
(SFAS No. 121) issued by the Financial Accounting Standards Board (FASB) is
effective for financial statements for fiscal years beginning after December 15,
1995. The new standard establishes new guidelines regarding when impairment
losses on long-lived assets, which include plant and equipment, certain
identifiable intangible assets and goodwill, should be recognized and how
impairment losses should be measured. The Company does not expect adoption to
have a material effect on its financial position or results of operations.
SFAS No. 123, "Accounting for Stock-Based Compensation" (SFAS 123) issued
by the FASB is effective for specific transactions entered into after December
15, 1995, while the disclosure requirements of SFAS No.123 are effective for
financial statements for fiscal years beginning no later than December 15, 1995.
The new standard establishes a fair value method of accounting for stock-based
compensation plans and for transactions in which an entity acquires goods and
services from nonemployees in exchange for equity instruments. At the present
time, the Company has not determined if it will change its accounting policy for
stock based compensation or only provide the required financial statement
disclosures. As such, the impact on the Company's financial position and
results of operations is currently unknown.
On March 3, 1997, FASB issued Statement of Financial Accounting Standards
No. 128, Earnings per Share (SFAS 128). This pronouncement provides a different
method of calculating earnings per share than is currently used in accordance
with APB 15, Earnings per Share. SFAS 128 provides for the calculation of Basic
and Diluted earning per share. Basic earnings per share includes no dilution and
is computed by dividing income available to common share holders by the weighted
average number of common shares outstanding for the period. Diluted earnings per
share reflects the potential dilution of securities that could share in the
earning of the entity, similar to fully diluted earnings per share. This
pronouncement is effective for fiscal years and interim periods ending after
December 15, 1997; early adoption is not permitted. The Company has not
determined the effect, if any, of adoption on its EPS computation(s)
SUMMARY OF ACCOUNTING POLICIES (contiued)
Fair Value of Financial Instruments
The carrying amounts of financial instruments including cash and cash
equivalents, accounts receivable, stock subscription receivable, accounts
payable, accrued compensation and notes payable other, approximate fair value
because of the short maturity of these instruments. It is not practical to
estimate the fair value of the notes payable related party due to their related
party nature.
Reclassifications
For comparability purposes, certain prior year accounts have been
reclassified to conform with current year presentation.
NOTES TO CONSOLIDATED FINANCIALS
1. Business
Nature of Organization
The Company was incorporated under the laws of Colorado on February 3, 1986, to
analyze and invest in business opportunities as they may occur.
TechniLink has developed the Cube 2001 series for the monitoring and controlling
of various devices in the petroleum and gas industry.
PrimeLink has developed a product line that uses cutting edge communications to
assist in the monitoring of meters for utility companies and the petroleum
industry. This technology, while eliminating the need for a meter reader, is
more significant in enabling the utility companies to utilize energy
conservation and, in the case of power companies, re-routing of electrical power
to areas where it is needed. The devices are also in use in vending machines to
monitor sales and functions of the vending machine without the physical
inspection usually needed.
Effective December 1, 1994, the Company agreed to acquire all of the outstanding
shares of Progressive Administrators, Inc. (PAI) in exchange for 300,000 shares
of its no par value common stock. The transaction was to be accounted for as a
purchase transaction. The shares to be issued by the Company were to be
"restricted securities" within the meaning of Rule 144 of the Securities Act of
1933, as amended. Accordingly, PAI would have been a wholly-owned subsidiary of
the Company as of December 1, 1994. PAI was formed in the state of Colorado on
September 14, 1994 and is engaged in the records storage business.
Effective December 1, 1994, the Company also agreed to acquire all of the
outstanding shares of Creative Image Products, Inc. (CIPI) in exchange for
575,000 shares of its no par value common stock. The shares were issued in
February of 1995. The shares issued by the Company were "restricted securities"
within the meaning of Rule 144 of the Securities Act of 1933, as amended.
Accordingly, CIPI was a wholly-owned subsidiary of the Company as of December 1,
1994. CIPI was formed in the state of Kansas on April 29, 1994 and is engaged
in the insecticide business and through its wholly-owned subsidiary, ADA
Signature Distributors, Inc., the sign manufacturing business.
During 1995, the Company's only operations consisted of CIPI's manufacturing of
organic insecticides prior to its disposal. On September 28, 1995 the Company
entered into an agreement to unwind the acquisition of CIPI. CIPI issued a
promissory note to the Company in the amount of $1,302,500 to reimburse the
Company for cash advances. In accordance with the agreement, the shares issued
to CIPI were exchanged for all shares issued to the Company. The shares
outstanding carry no value on the financial statements.
On February 15, 1996, PrimeLink entered into a Joint Marketing and Development
Agreement ("Agreement") with SkyTel Corp. pursuant to which PrimeLink agreed to
customize and develop a paging technology based receiver for use in connection
with SkyTel's Two-Way wireless messaging services and system (the "SkyTel
Network") and both parties agreed to assist each other in the marketing of the
PrimeLink product and the SkyTel Network. The Company believes that the joint
1. Business(Continued)
Nature of Organization (Continued)
marketing of its product with the SkyTel System could have significant potential
for the Company. However, the Agreement does not require any purchases of the
PrimeLink product by SkyTel, and may not necessarily result in any significant
revenues for the Company. The Agreement is for a two-year term, and will
automatically renew for additional one-year terms until terminated by either
party.
Change of Control
During the year ended November 30, 1994, the Company issued a combination of
voting common and voting preferred shares to Black Dog Ranch, LLC, an unrelated
party, sufficient to transfer control of the Company to Black Dog Ranch, LLC.
Accordingly, the Company is a subsidiary of Black Dog Ranch, LLC. In connection
with the transfer of control, the Company changed its name to BDR Industries,
Inc. During the year ended November 30, 1995 the Black Dog Ranch, LLC sold its
interest in the Company to Robert Spigno who now has the controlling interest in
the Company. BDR Industries, Inc. then changed its name to Conectisys
Corporation.
Formation of Subsidiary
Effective June 24, 1994, the Company formed a wholly-owned subsidiary, CFC
Capital Corporation. The entity is currently inactive.
Acquisition of Privately Held Companies
In September 1995, the Company acquired 80% of the outstanding stock of
Technilink, Inc. a California Corporation, and 80% of the outstanding stock of
Primelink, Inc., a Kansas corporation, in exchange for an aggregate of 200,000
shares of the Company's common stock. The acquisitions were accounted for as
purchases. Both Primelink and Technilink are start-up companies with no material
operating activity and therefore no proforma statements of operations were
provided for 1995.
The acquisitions of these companies occurred in connection with the signing
of the license agreements discussed in Note 9. The Company issued a total of
700,000 shares of common stock and assumed a loan of $400,000 to acquire the
licenses and the Corporations. The only major asset acquired from Primelink and
Technilink was the license and technology. The stock issued was valued at
$1,750,000, the fair market value of common stock issued, and is included in
licenses and technology on the balance sheet.
2. Going Concern
As of May 30, 1997 and 1996, the Company has a deficiency in working capital
of $1,154,227 and $1,177,968, respectively and has incurred operating losses
since its return to the development stage, which raise substantial doubt about
the Company's ability to continue as a going concern.
Management's plans for correcting these deficiencies include the future sales of
their newly licensed products and to raise capital through the issuance of
common stock to assist in providing the Company with the liquidity necessary to
retire the outstanding debt and meet operating expenses. In the longer term,
the Company plans to achieve profitability through the operations of its newly
acquired subsidiaries. The consolidated financial statements do not include any
adjustments that might result from the outcome of the uncertainty.
3. Related Party Transactions
The Company issued 2,494 and 260,000 shares of common stock during the years
ended November 30, 1996 and 1995, respectively, to a related party in exchange
for services. The services were valued at $17,538 and $534,961, respectively,
which approximates the fair market value of the shares issued.
The CEO of the Company exercised 28,805 of his stock options at an exercise
price of $0.20 per share. The Company also issued the CEO 4,155 shares of
Preferred Class A stock for services rendered.
The Company also leases office space from S.W. Carver Corporation, a company
owned by a major shareholder of the Company. The lease is for a period of
twelve months at a rate of $2,000 per month. The Company also pays S.W. Carver
Corporation for bookkeeping services which are included in general and
administrative expenses. Also, the Company has notes payable to S.W. Carver
Corporation, see Note 6.
In February 1996, the Company's Board of Directors authorized the purchase of a
car for the use of its Chief Financial Officer. The purchase price was
approximately $23,000, of which approximately $18,000 was financed by the
Company. The Board of Directors also determined that the vehicle would be
maintained and fueled in full by the Company.
4. Notes Receivable
During the year ended November 30, 1995 and 1994, the Company advanced to CIPI
$1,302,500. This advance is evidenced by a note payable to the Company, due on
demand or October 1, 1998, whichever is first. Interest on the note is at the
rate of ten percent per year. As of November 30, 1996 and 1995, the Company has
provided an allowance of $855,875 against this receivable. Interest receivable
on this note has also been reserved accordingly.
5. Property and Equipment
Property and equipment consisted of the following:
May 97, 1997 1996
Office equipment $ 144,575 $ 139,493
Furniture and fixtures 14,369 -
Vehicles 35,362 35,362
194,306 174,855
Less: accumulated depreciation (60,111) (2,520)
Total $ 134,195 $ 172,335
Depreciation expense for the years ended November 30, 1996 and 1995, totaled
$38,263 and $946, respectively.
6. Notes Payable
The notes payable consisted of the following:
May 97, 1997 1996
Notes payable to S.W. Carver Corporation
(a related party) unsecured, due on
demand at 10% interest, unpaid
balance payable on February 15, 1998 $ 514,953 $ 512,130
Note payable to Devon Investment Advisors
unsecured, due on demand at 10%
interest 241,824 241,824
Note payable to Black Dog Ranch, LLC
unsecured, due on demand at 8%
interest, unpaid balance on January
15, 1998 171,397 -
Note payable to Investor's Financial 25,000 -
Note payable to Ford Motor Credit,
secured by vehicle, interest at 12.9%,
unpaid balance on February 25, 1999 11,065 17,087
Note payable to Robert Spigno (related
party) unsecured, due on demand at
10% interest, unpaid balance on
February 15, 1998 8,000 8,000
Total notes payable 972,239 779,041
7. Shareholders' Equity
The Company is authorized to issue 50,000,000 shares of $1.00 par value
preferred stock, no liquidation preference. One million of the preferred shares
are designated as Class A preferred shares which have super voting power wherein
each share receives 100 votes and has anti-dilution rights. One million of the
preferred shares are designated as Class B preferred shares which have
conversion rights wherein each share may be converted into ten shares of common
stock.
In February, 1996, the Company entered into an investment banking agreement for
a period of two years. In consideration for services the Company granted the
investment banker options to purchase 1,000,000 shares at $2.50 per share, the
fair value at the date of grant. In October of 1996 the Company issued the
investment banker 130,800 shares of common stock for services rendered. These
shares resulted in the Company recording consulting fees of $327,000 which is
the fair value of the stock at the date issued.
In February and November of 1996, the Company issued 200,000 and 47,000 shares,
respectively, of common stock in settlement of outstanding obligations, which
included principal and interest. The total debt reduced amounted to $257,469
and interest of $446,640 for a total of $704,109. The value of the transaction
was based upon the value of the stock on that date.
In February 1996, the Company issued 63,199 shares of common stock to various
consultants and to an officer of the Company for services rendered. The
transactions were recorded at a total of $205,892 which approximates the fair
value of the stock given at that date.
In February 1996, the Company and Hollywood Trenz, Inc. ("HTNZ") mutually agreed
to terminate the ADA Sign Purchase Agreement and Agreement for the Purchase of
Common Stock between them dated March 23, 1995 and to return the shares
transferred pursuant to that agreement. As a result, the Company returned to
HTNZ 600,000 shares of HTNZ common stock, which is valued at zero, and HTNZ
returned to the Company 300,000 shares of the Company's common stock.
On September 3, 1996, 1,727 shares of common stock were issued to Micro
Automation Development (MAD) for services provided to Technilink. The
transaction was recorded at $4,317, which approximates the fair value of the
stock given at that date.
On September 12, 1996, the Company issued to Internet Stock Guide Inc., 10,000
shares of common stock for partial payment of an advertising contract on there
World Wide Web and consulting services. An additional 2000 shares of common
stock were transfered to Internet Stock Guide Inc. from Black Dog Ranch. The
transaction was recorded at $32,000 and 12,000 respectively which
approximates the fair value of the stock given at that date.
On September 23, 1996, the Company issued 4,155 shares of Preferred stock to
Robert Spigno, President of Conectisys Corp. for the reduction of compensation
accrued to Mr. Spigno, the shares were issued at their par value of $1.00 per
share.
8. Income Taxes
Deferred income taxes consisted of the following:
November 30, 1996 1995
Deferred tax asset, net operating
loss carryforward $ 3,454,392 $ 450,000
Deferred tax liability - -
Valuation allowance (3,454,392) (450,000)
Net deferred taxes $ - $ -
The valuation allowance offsets the net deferred tax asset since it is more
likely than not it would not be recovered.
9. Commitments and Contingencies
Employment Agreements
Incorporated by refrence 10KSB year ended November 30, 1995
License Agreements
The Company has entered into License agreements with the Presidents of both
Primelink and Technilink. The license agreements were entered into on September
20, 1995, in connection with the acquisition of Primelink and Technilink (see
Note 1), and are for a period of five years. As consideration for these license
agreements the Company issued each licensee 250,000 shares of its restricted
common stock and will pay the licensee a royalty of 5% of net sales of the
applicable product. In addition, in the event of the sale of the license or the
acquisition or merger of Technilink or Primelink, a royalty sum of 20% of the
sales price of the license shall be paid to the licensee, the sales price shall
not be less than $1,500,000. The licenses were valued at the fair market value
of the stock issued to obtain the licenses.
Litigation
The Company is a party in the case, Securities and Exchange Commission
(Plaintiff) Vs. Andrew S. Pitt, Conectisys Corp., Devon Investments Advisors,
Inc., B&M Capital Corp., Mike Zaman, and Smith Benton & Hughes, Inc.
(Defendants) Civil Case #96-4164. The Case alleges that a fraudulent scheme was
orchestrated and directed by the defendants to engage in the sale and
distribution of unregistered shares of Conectisys by creating the appearance of
an active trading market for the stock of Conectisys and artificially inflating
the price of its shares. In the suit the SEC seeks disgorgment of profits from
illegal activity and permanent injunctions from violating securities laws.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This Schedule contains summary financial information extracted
from SEC Form 10-QSB and is qualified in its entirety by reference
to such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> NOV-30-1997
<PERIOD-END> MAY-30-1997
<CASH> 3197
<SECURITIES> 0
<RECEIVABLES> 1619288
<ALLOWANCES> 1067023
<INVENTORY> 0
<CURRENT-ASSETS> 73433
<PP&E> 197459
<DEPRECIATION> 60111
<TOTAL-ASSETS> 2237941
<CURRENT-LIABILITIES> 1227660
<BONDS> 0
0
20500
<COMMON> 6477220
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 2237941
<SALES> 208094
<TOTAL-REVENUES> 208094
<CGS> 114414
<TOTAL-COSTS> 792742
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 40573
<INCOME-PRETAX> (598215)
<INCOME-TAX> 800
<INCOME-CONTINUING> (599015)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (599015)
<EPS-PRIMARY> (.22)
<EPS-DILUTED> (.22)<F1>
<FN>
<F1>Due to the net loss computation of Diluted EPS would be anti-dilutive
</FN>
</TABLE>
EQUIPMENT LEASE
LESSOR: PrimeLink, Inc. LESSEE Enogex Inc.
:
Address 9875 Widmer Addres P.O. Box 24300
: s:
Lenexa, KS Oklahoma City, OK
66215 73124-0300
(913) 859-0700 (405) 525-7788
Date: Date:
QUANTITY DESCRIPTION OF EQUIPMENT
250 sites PrimeLink TransComm Package
At each flow computer PrimeLink Smart SSR Radio
site: Slave
Antenna
Antenna coaxial cable
Antenna mounting hardware
Antenna pole
Power system
Enclosure
Miscellaneous cable and
mounting hardware as required
Hub-controllers PrimeLink Hub-controller
consisting of:
(A maximum of one (1) PSTN modem
Hub-controller per ten
(10) sites. Best
efforts shall be made to
maximize the number of
sites per Hub-
controller)
Cellular telephone modem
Cellular telephone
PrimeLink Smart SSR Radio
Master
Antennas
Antenna coaxial cables
Antenna mounting hardware
Antenna pole
Power system (where required)
Enclosure
Miscellaneous cable and
mounting hardware as required
Server at PrimeLink Windows NT PC
facility consisting of:
Database software
PSTN modem for data collection
PSTN modem for data delivery
UPS
1-800 telephone service
PC Software to access PC software package to allow
PrimeServer: for download of files from the
PrimeServer
EQUIPMENT LOCATION: Sites to be provided by Enogex.
TERM MONTHLY
PAYMENT INITIAL FEE
Initial 24 $XXXXX $XXXXXXX
months
Second 24 $XXXXXXX $ XXXXXXX
Months
(All packing, shipping and any taxes not included and are
additional)
THIS LEASE CANNOT BE CANCELED EXCEPT AS EXPRESSLY PROVIDED. THIS
LEASE SHALL BECOME EFFECTIVE UPON SIGNING BY LESSOR AND LESSEE.
1. TERMS AND CONDITIONS - Lessor agrees to lease and Lessee
leases from Lessor the equipment described above and on any
attached Schedule (the "Equipment") in accordance with the terms
and conditions stated in this Lease Agreement. Lessee authorizes
Lessor to insert in this Equipment Lease Agreement (the "Lease")
serial numbers and other identification information when
determined by Lessor. This Lease constitutes the full and entire
agreement between the Lessor and Lessee in connection with the
Equipment and merges any and all other understandings. Neither
party relies on any other statement or representation made by the
other or any third party. This Lease can neither be canceled nor
modified except by written agreement signed by both Lessor and
Lessee. notwithstanding the pilot program terms outlined in
paragraph 2 below which shall remain in full force and effect)
2. PILOT PROGRAM - Lessor shall provide Lessee with equipment
for 26 sites. Pilot program shall last 45 days. The initial start
fee is $ XXXXXXX (to be paid upon successful completion of the
pilot program, to Lessee's criteria). If the pilot program does
not meet pre-agreed upon performance criteria (attached hereto as
Statement of Work ), Lessee is not obligated to pay the initial
start up fee, or any costs associated with equipment installation
and removal. If the pilot program meets pre-agreed upon
performance criteria, Lessor shall complete 224 additional Enogex
sites within 18 months. If pilot program meets pre-agreed upon
performance criteria and Lessee does not proceed with the roll
out of 224 additional sites within 30 days of completion of the
pilot program, a flat fee of $ XXXXXXX shall be paid by Lessee
to Lessor for operational expenses of Lessor, all equipment shall
be returned to Lessor and this Lease shall be terminated without
further obligation of either party.
3. PAYMENT - Lessee agrees to make all monthly Lease payments
in advance on the 1st day of each and every month commencing upon
the Equipment being delivered, installed and operational, and to
pay such other charges as provided in this Agreement. The first
30 day lease payment shall be made immediately and any partial
month payment shall be prorated and credited to the next
succeeding billing period. The first 30 day lease payment shall
be returned in full to Lessee if the pilot program is
unsuccessful. Each payment received will be applied to the
oldest charge due under this Lease. Lessee agrees to make
payments, after successful completion of the pilot program,
regardless of any problems Lessee might or may have with the
Equipment including its operations, capability, installation or
repair and regardless of any claim, set-off, counterclaim or
defense Lessee might or may have against the Manufacturer,
Salesperson or other Third Party. Without Lessor's prior written
consent, any payment to Lessor of a smaller sum than due at any
time under this Agreement shall not constitute release or an
accord or satisfaction for any greater sum due or to become due
regardless of any restrictive endorsement.
4. TAXES/ASSESSMENTS/FEES - Lessee agrees: to show the
Equipment as "Leased Equipment" on Lessee's tax returns and to
pay taxes, assessments, fees and penalties which may be levied or
assessed with respect to the use of the Equipment or any lease
payments, including but not limited to all federal, state and
local taxes however designated, levied or assessed whether upon
Lessee or Lessor of the Equipment. In addition, Lessee authorizes
Lessor to file at Lessor's option informational financing
statements without Lessee's signature and if a signature is
required by law, Lessee appoints Lessor as Lessee's attorney-in-
fact to execute such financing statements. Lessee and any
guarantor agree to reimburse Lessor for reasonable costs incurred
in collecting taxes, assessments or fees for which Lessee is
liable and any collection charges attributable thereto including
reasonable attorneys' fees. Lessee agrees that Lessor is entitled
to all tax benefits resulting from ownership of the Equipment
including any investment tax credit and depreciation.
5. LESSEE'S AND GUARANTOR'S WARRANTIES TO LESSOR - Lessee
expressly warrants to Lessor and Lessor relies on the fact that
Lessee: (a) has read and understood this Lease before it was
signed; (b) will authorize Lessor to pay for the Equipment only
after Lessee has received and accepted the Equipment as fully
operable for Lessee's purposes; (c) have freely chosen to lease,
not buy, from Lessor only after having considered other means of
obtaining the use of the Equipment; (d) have provided accurate
and correct financial information and other statements and same
will be updated upon Lessor's request during the term of the
Lease; (e) are currently meeting all debts as such come due; (f)
will use the Equipment exclusively for Lessee's business
purposes; (g) has unrestricted power to enter into this Lease,
has duly authorized the person executing it and certifies that
all signatures are authentic; and (h) will pay all costs
connected with the Equipment including taxes, insurance, repairs,
shipping, collection costs and other expenses normally paid in a
net lease.
6. LESSOR'S WARRANTIES TO LESSEE AND GUARANTOR - Lessor
warrants to Lessee, the Equipment provided by Lessor to be free
from defects in material and workmanship under normal conditions
for a period of 48 months from the date of installation to the
Lessee. In the event of such defect in material or workmanship,
Lessor's obligations under this warranty shall be limited to
repair or replacement, at the sole option of Lessor, of any
defective part(s). Lessor shall maintain an inventory of
necessary equipment to be used for repair or replacement of
installed failed equipment at Lessee's sites. THE FOREGOING
WARRANTY IS EXPRESSLY MADE IN LIEU AND IN PLACE AND STEAD OF ALL
OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR ANY PURPOSE AND OF ANY OTHER
LIABILITY OR OBLIGATION. THE FOREGOING WARRANTY SHALL NOT APPLY
TO ANY EQUIPMENT OR PARTS WHICH HAVE BEEN, ACCIDENT, NEGLIGENCE,
ALTERATION, ABUSE OR MISUSE. LESSOR ACKNOWLEDGES THAT LESSEE DOES
RELY ON LESSOR'S SKILL AND JUDGMENT WITH REGARD TO THE SELECTION
AND INSTALLATION OF THE EQUIPMENT AS FIT OR SUITABLE FOR ANY
PARTICULAR PURPOSE. AND LESSOR AGREES TO MEET THE REQUIREMENTS OF
LESSEE FOR THE PURPOSE OF EQUIPMENT INSTALLATION AND MAINTENANCE
AS SPECIFIED IN ATTACHMENT "B", ENOGEX CONTRACTOR INSURANCE
REQUIREMENTS
7. OWNERSHIP AND TITLE - Lessor is the sole owner of the
Equipment, has sole title to the Equipment, has the right to
inspect the Equipment and has the right to affix and display
notice of Lessor's ownership thereon. The Equipment shall remain
Lessor's personal property whether or not affixed to realty and
shall not be part of any real property on which it is placed.
Lessee agrees to maintain the Equipment so that it may be removed
from the property or building where located without damage.
8. OPERATION AND TERMINATION - Lessor shall be solely
responsible for the installation, operation and maintenance of
the Equipment, shall keep it in good condition and running order
and shall use and operate the Equipment in compliance with
applicable law. Lessee agrees to keep and use the Equipment only
at the business address specified above ("Equipment Location"),
to never abandon or move the Equipment from that address, nor
relinquish possession of the Equipment except to Lessor's agent.
Exceptions are when Lessee notifies Lessor of the necessity to
relocate equipment because of changed circumstances, either
eliminating the need for such equipment at a particular site, or
requiring the relocation of some or all of Lessee's facilities at
a particular site. Upon notification, equipment may be relocated
to a different site to perform the same function by the Lessor.
All costs associated with relocation shall be paid by Lessee, At
the end of the Lease Term, Lessee must contact Lessor who will
designate the return location within the continental United
States, and Lessee shall at Lessee's expense, immediately crate,
insure and return the Equipment to the designated location in as
good a condition as when Lessee received it, excepting only
reasonable wear and tear. Until Lessor actually receives the
Equipment at the return location, the Lease renews automatically
from month to month and Lessee agrees to continue to make lease
payments at the last effective rate under the Lease.
9. RISK OF LOSS AND INSURANCE - Until Lessee has returned the
Equipment to the designated location, Lessee bears the entire
risk of loss or damage to the Equipment regardless how arising.
Lessee shall immediately notify Lessor of the occurrence of any
loss or other occurrence affecting Lessor's interests and shall
make repairs or corrections at Lessee's expense. In such event,
Lessee agrees to continue to meet all payment and other
obligations under the Lease. Lessee agrees to keep the Equipment
insured at Lessee's expense against risk of loss or damage from
any cause whatsoever. Lessee agrees that such insurance shall be
not less than the greater of the unpaid balance of the rentals
due or the then-current fair market value of the Equipment.
Lessee also agrees that the insurance shall be in such additional
amount as is reasonable to cover Lessor for public liability and
property damage arising from the Equipment or Lessee's use of it.
Lessee agrees to name Lessor as the loss payee. Each policy shall
provide that the insurance cannot be canceled without thirty (30)
days prior written notice to Lessor. Upon request by Lessor,
Lessee agrees to furnish proof of each insurance policy including
a certificate of insurance and a copy of the policy. The proceeds
of such insurance shall be applied at Lessor's sole election
toward the replacement or repair of the Equipment or payment
towards Lessee's obligations. Lessee appoints Lessor as attorney-
in-fact to make any claim for, receive payment of, or execute or
endorse all documents, checks or drafts for loss or damage or
return of premium under such insurance. Because of increased
credit risks to Lessor when not insured by Lessee, Lessee agrees
to pay to Lessor each month a risk charge stipulated and
liquidated at 25% of Lessor's original equipment cost until
Lessee provides proof of compliance with insurance requirements.
In spite of such risk charge, Lessee has no right to any
insurance benefits from Lessor. Lessee is still liable for all
losses and such risk charge is not in lieu of the insurance
requirements of this Lease.
10. INDEMNITY - Lessee agrees to indemnify and hold Lessor
harmless from and against any and all losses, damages, injuries,
demands and expense (a "Claim"), including any and all attorneys'
fees and legal expenses, arising from or caused directly or
indirectly by any actual or alleged use, possession, maintenance,
condition operation, location, delivery or transportation of any
item of Equipment. However, this indemnity shall not apply to
any design, manufacturing, or installation defects with respect
to the equipment. Should Lessee be entitled under applicable law
to revoke its acceptance of the Equipment, Lessee agrees to pay
and indemnify Lessor for any payment by Lessor to the
manufacturer or supplier of the Equipment.
11. COLLECTION CHARGES AND ATTORNEYS' FEES - If any part of any
sum due to Lessor is not received by Lessor within ten (10) days
of the due date or if any sum paid by check shall be dishonored
or returned to Lessor on account of uncollected funds or for
insufficient funds, Lessee agrees to pay Lessor: (a) a one-time
late charge to compensate Lessor for collecting and processing
the late sum, equal to the greater of 15% of any delayed sum or
$25.00, plus (b) an interest charge for every month after the
first month in which the sum is late to compensate Lessor for the
inability to reinvest the sum, such interest charge stipulated
and liquidated at 1 1/2% per month or the maximum allowed by
applicable law, whichever is less.
12. LESSEE AND ANY GUARANTOR AGREE TO PAY LESSOR'S REASONABLE
ATTORNEYS' FEES AS DAMAGES AND NOT COSTS - In all proceedings
arising under this lease, such proceedings including any
arbitration, bankruptcy proceeding, civil action, mediation or
counterclaim on which Lessor prevails seeking relief from stay in
bankruptcy or post-judgment action or appeal with respect to any
of the foregoing, reasonable attorneys' fees are stipulated and
liquidated at not less than the greater of $500.00 or 25% of
Lessor's total amount in collection.
13. DEFAULT - Lessee shall be in default of this Lease on any of
the following events: (a) Lessee fails to pay any month's rent
within ten (10) days after it first becomes due; (b) Lessee
assigns, moves, pledges, subleases, sells or relinquishes
possession of the Equipment or attempts to do so, without
Lessor's prior authorization from Lessee's written request; (c)
Lessee breaches any of its warranties or other obligations under
this Lease or any other agreement with Lessor and fails to cure
such breach within ten (10) days after Lessor sends Lessee a
notice of the existence of such breach; (d) any execution or writ
of process is issued in any action or proceeding to seize or
detain the Equipment; (e) Lessee or any guarantor gives Lessor
reasonable cause to be insecure about Lessee's willingness or
ability to perform obligations under the Lease or any other
agreement with Lessor; (f) Lessee or any guarantor dies, becomes
insolvent or unable to pay debts when due, stops doing business
as a going concern, consolidates, merges, transfers all or
substantially all of its assets, makes an assignment for the
benefit of creditors, appoints a trustee or receiver or undergoes
a substantial deterioration of financial health; or (g) Lessor or
any guarantor fails to reaffirm this lease obligation within
thirty (30) days of the filing of any petition for protection
under the United States Bankruptcy Code.
14. REMEDIES - Should Lessee default, Lessor has the right to
exercise any or all of the following: Lessor may without notice
accelerate all sums under the Lease and require Lessee to
immediately pay Lessor all sums that are already due and the
discounted value of those that will become due and (i) require
the immediate return of the Equipment to Lessor or (ii) if Lessee
agrees after Lessee pays all other sums under the Lease, sell the
Equipment to Lessee at the estimated lease-end fair market
Equipment value discounted to the date of sale. Such estimated
lease-end fair market Equipment value is stipulated and
liquidated as the Lessor's cost of the Equipment less 2% per
month during the first 12 months of the Lease and less 1% per
month thereafter up until the date of acceleration. Lessor has
the right to immediately retake possession of the Equipment
without any court or other process of law and for such purpose
may enter upon any premises where the Equipment may be and remove
the same. Lessor has the right to exercise any remedy at law or
equity, notice thereof being expressly waived by Lessee and any
guarantor. Lessor's action or failure to act on any one remedy
constitutes neither an election to be limited thereon nor a
waiver of any other remedy nor a release of Lessee from the
liability to return the Equipment or for any Loss or Claim with
respect thereto. The provisions of this Lease are severable and
shall not be affected or impaired if any one provision is held
unenforceable, invalid or illegal. Any provision held in conflict
with any statute or rule of law shall be deemed inoperative only
to the extent of such conflict and shall be modified to conform
with such statute or rule.
15. ARBITRATION - Either party may, at its option, submit any
matter arising out of this Lease Agreement, including any claim,
counterclaim, setoff or defense to binding arbitration by the
American Arbitration Association in the City of Kansas City,
State of Kansas irrespective of the fact that neither the
Lessee, any guarantor or the Equipment may be located in that
City now or then. The decision and award of the arbitrator(s)
shall be final and binding and may be entered as rendered in any
court having jurisdiction thereof.
16. CONSENT TO JURISDICTION, VENUE AND NON-JURY TRIAL - Lessee
and any guarantor consent, agree and stipulate that: (a) this
Lease shall be deemed fully executed and performed in the State
of Kansas and shall be governed by and construed in accordance
with the laws thereof; and (b) in any action, proceeding, or
appeal on any matter related to or arising out of this lease,
Lessor, Lessee and any guarantor: (i) shall be subject to the
personal jurisdiction of the State of Kansas including any state
or federal court sitting therein and all court rules thereof;
and (ii) shall accept venue in any federal or state court in
Kansas.(Per Enogex Attorney) (OK) Nothing contained herein is
intended to preclude Lessor from commencing any action hereunder
in any court having jurisdiction thereof.
17. CONSENT TO SERVICE OF PROCESS - Lessee and any guarantor
agree that any process served for any action or proceeding shall
be valid if mailed by Certified Mail, return receipt requested,
with delivery restricted to either the addressee, its registered
agent or any agent appointed in writing to accept such process.
18. PROPRIETARY INFORMATION - Lessor and Lessee agree that all
information exchanged between companies will remain confidential
and shall be considered proprietary. All data gathered from gas
wells by lessor for lessee will be considered proprietary and
will only be provided to less and its employees
Dated:
Enogex
/S/ Alan Stacy
BY: Alan Stacy
Vice President
ACCEPTED:
Date:
PrimeLink,
Inc.
BY: /s/ Donald I.
Wallace
Donald I. Wallace
President (Lessor)
Attachment "A"
Statement of Work
Pilot Test
A successful pilot test is defined as follows:
1. Install 26 sites (All 26 Sites to be determined prior to
start of any installations)
2. Pilot duration is 45 days
3. PrimeLink will gather data from each flow computer once per
hour
4. Enogex retrieve data file of all flow computers twice per
day from PrimeServer via 800 number
5. Availability will be at least 99.5%
6. Pilot will gather a maximum of 56K bytes of data per day
from each site.
7. Pilot starts when all site are operational and transmitting
data.
DEVELOPMENT AND MARKETING ALLIANCE AGREEMENT
THIS TECHNICAL DEVELOPMENT AND MARKETING ALLIANCE AGREEMENT (the
"Agreement") made this day of April, 1997 (the "Effective
Date"), by and between PrimeLink, Inc., a Kansas corporation
whose principal place of business is located at 9875 Widmer Road,
Lenexa, KS 66215 ("PrimeLink") and Williams Wireless, Inc., a
Delaware corporation whose principal place of business is located
at Tulsa Union Depot, 111 East First Street, Tulsa, Oklahoma
74103 ("WWI").
Background
WHEREAS, PrimeLink and WWI desire to establish a business
relationship, the terms of which are described below, which will
mutually support and enhance the development and marketing
efforts of each company in the area of wireless telemetry
products and services; and
WHEREAS, PrimeLink and WWI may use the basis of this relationship
to enter into other development and marketing alliances.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and for other goods and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows.
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Affiliate" means any person, entity, or association
directly or indirectly controlling or controlled by, or under
direct or indirect common control with, the party, entity, person
or association in question. "Control" will mean the power to
direct the management policies of the controlled person, entity,
or association, whether by voting securities, by contract, by
family relationship or otherwise.
"Mtel Network" means the Two-Way wireless messaging system
owned and operated by Mtel's Affiliates.
"NPCS Transceiver" means the OEM Narrowband wireless PCS
transceiver installed within the Telemetry Device, and
transmitting over the Mtel Network, to transmit the customer
Telemetry data being collected to a central data collection
point.
"Telemetry" means, collectively, monitoring devices,
computerized control equipment, communications infrastructure,
software, host computers, control centers and technical personnel
services.
"Telemetry Gateways" means WWI-owned devices for
communicating with TIMS, processing the telemetry data from the
TIMS, storing the data, communicating the data to a central
collection point, and packaged with other associated hardware all
within an enclosure, designed to provide telemetry data
collection within a customer's premise. Incorporated as a key
component within the Telemetry Gateways is PrimeLink firmware
licensed to WWI which is further described in Section 5 herein.
"Telemetry Interface Module ("TIM")" means WWI-owned data
sensing devices attached to various customer equipment for
capturing, sorting and communicating telemetry data to Telemetry
Gateways.
"Telemetry Product" means the TIMS, Telemetry Gateway, data
collection networks, including the Mtel Network and others, other
hardware, application software, device installation process,
customer training, ongoing customer support, network management,
data processing, data networking and other services which
constitute a complete turn-key telemetry application which WWI
offers to a customer.
2. Scope and Purpose of the Alliance. PrimeLink and WWI hereby
agree to undertake a development and marketing alliance for the
purpose of pursuing and developing products and business in the
telemetry market. PrimeLink shall assist and cooperate with WWI,
under the terms contained herein, in developing and marketing the
Telemetry Products. WWI shall grant PrimeLink certain
manufacturing contracts and marketing rights, under the terms
contained herein..
3. System Engineering and Design Services. From time to time
WWI may contract with PrimeLink for PrimeLink to provide systems
engineering and design services. The terms of such contracts
will be set forth in Purchase Orders or separate Commercial
Service Agreements ("CSA"). Rates for such systems engineering
and design services will be provided in Schedule A to the
corresponding CSA. All resulting work efforts and documentation
will be the property of WWI, and copies will be delivered to WWI
as stipulated in the CSA. Upon request of WWI, PrimeLink will
immediately deliver to WWI in Tulsa any materials relating to
such systems engineering and design services, including but not
limited to drawings, specifications, prototypes and circuit
boards. All patent rights and copyrights associated with this
paragraph accrue to WWI exclusively, except to the extent
otherwise provided in the CSA or otherwise provided in Section 5
of this Agreement.
4. Manufacturing Services. From time to time WWI may contract
with PrimeLink to manufacture Telemetry Devices for WWI.
Mutually acceptable terms to govern such contracts will be set
forth in separate CSAs, which terms shall provide that the
manufacturing party is to be the exclusive manufacturer of the
subject product. All manufactured products and documentation
resulting from the contracted manufacturing efforts will be the
property of WWI and copies will be delivered to WWI as stipulated
in the CSA. Upon request of WWI, PrimeLink will immediately
deliver to WWI in Tulsa any materials relating to such
manufacturing efforts, including but not limited to drawings,
specifications, prototypes and circuit boards. All patent rights
and copyrights associated with this paragraph accrue to WWI
exclusively. PrimeLink agrees to disclose full labor and
materials costs on all products they manufacture for WWI under
this paragraph.
5. Cross Licensing; Wholesale Purchases. WWI may license, or
buy for resell, telemetry devices or components of telemetry
devices including, but not limited to, firmware modules for
accessing data from the MTEL Network, from PrimeLink at mutually
agreeable wholesale rates. PrimeLink may license or buy for
resell, telemetry products and services from WWI at mutually
agreeable wholesale rates. All patent rights and copyrights
associated with devices, components, products or services
licensed or purchased as described in this Section 5 shall remain
with the original holder thereof exclusively. Purchasing or
licensing for resell must follow the reseller terms outlined in
Section 6 of this Agreement. Selection of products to offer for
cross licensing or purchase for resale is at the sole discretion
of each respective company holding the licensing or ownership
rights.
6. Scope and Purpose of the Joint Marketing and Reseller
Agreement. WWI hereby grants PrimeLink the non-exclusive right
to resell the Telemetry Products developed and sold by WWI, under
the following conditions. WWI retains the right to approve in
PrimeLink's pursuit of all reseller opportunities. To obtain
approval from WWI, PrimeLink shall use diligent and timely
efforts to register resell opportunities with WWI by submitting
to WWI a mutually agreeable registration form and by following
mutually agreeable procedures. Once registered, WWI shall use
diligent and timely efforts to notify PrimeLink as to whether
PrimeLink is authorized to resell WWI's Telemetry Products to the
registered customers. WWI shall not unreasonably deny PrimeLink
the right to pursue any registered opportunity, but that
notwithstanding, WWI has the right to deny authorization to
PrimeLink if the registered opportunity conflicts with an
existing opportunity being pursued directly by WWI or its agents
or Affiliates, or if WWI believes the pursuit of the registered
company may in some way be detrimental to WWI's parent company,
The Williams Companies, Inc. or any of WWI's other Affiliates.
If WWI denies PrimeLink the right to pursue a registered
opportunity in accordance with this Section, WWI may pursue such
opportunity directly with such potential customer without
compensation to PrimeLink.
7. Cost Disclosure. PrimeLink agrees to disclose full labor
and materials costs on all products it sells or licenses to WWI.
8. Relationship of the Parties. None of the provisions of this
Agreement shall be deemed to constitute a partnership, joint
venture, or any other such relationship between the parties
hereto, and no party shall have any authority to bind the other
party in any manner. Neither party shall have or hold itself out
as having, nor shall either party have, any right, authority, or
agency to act on behalf of another party in any capacity or in
any manner, except as may be specifically authorized in this
Agreement. The employees of WWI shall not be deemed to be
employees of PrimeLink, and the employees of PrimeLink shall not
be deemed to be employees of WWI.
9. Responsibilities of the Parties.
9.1 PrimeLink. During the Term of this Agreement, and
subject to the terms and conditions contained herein, (i)
PrimeLink shall provide technical support as required for
and specified in each CSA or as required to support other
activities jointly agreed to by the parties, and (ii)
PrimeLink shall be fully responsible for the satisfaction of
PrimeLink's customers to whom PrimeLink resells Telemetry
Products developed by WWI, with WWI having responsibility
only to PrimeLink and only to the extent set forth in any
sale agreement between such parties, except that WWI shall
assist in the resolution of any customer dissatisfaction
related to a negligent omission or commission of an act by
WWI or its Affiliates..
9.2 WWI. During the Term of this Agreement, and subject to
the terms and conditions contained herein, WWI shall be
fully responsible for the satisfaction of WWI's customers to
whom WWI sells products or services directly, except that
PrimeLink shall assist in the resolution of any customer
dissatisfaction related to a negligent omission or
commission of an act by PrimeLink or its Affiliates. WWI
shall provide technical support and customer support as
required for specific CSA's entered into with PrimeLink, or
as required to support activities of registered reseller
opportunities agreed to by both parties.
9.3 Jointly. During the term of this Agreement, and
subject to the terms and conditions contained herein and any
applicable CSA, PrimeLink and WWI shall jointly:
(a) develop a mutually acceptable project
development plan for development of Telemetry and
products.
(b) develop a mutually acceptable marketing plan
for pursuit of Telemetry service business.
(c) market to prospective Telemetry customers
through sales calls, presentations, demonstrations
and any other means elected by the parties.
(d) confer as to means by which each party shall
develop, market, promote, and solicit Telemetry
services business.
10. Warranty.
10.1 PrimeLink warrants software and hardware products it
sells and/or licenses to WWI per the PrimeLink warranty attached
hereto as Exhibit A.
10.2 WWI warrants software and hardware products it sells
and/or licenses to PrimeLink per the WWI warranty attached hereto
as Exhibit B.
11. Indemnity. Each party shall defend, indemnify, and hold the
other harmless from any and all liabilities, losses, damages, or
costs, including reasonable attorney's fees, resulting from,
arising out of, or in any way connected with (a) any breach by
such party of any warranty, representation, or agreement
contained herein, (b) the performance of such party's duties and
obligations hereunder, or (c) any claim arising out of or related
to the other's authorized use of such party's tradenames,
trademarks, or service marks; except to the extent caused by the
negligence or willful acts or omissions of the party entitled to
indemnification hereunder.
12. Representations and Warranties.
12.1. By PrimeLink. PrimeLink represents and warrants
to WWI as follows: (a) PrimeLink is a corporation duly
organized, validly existing and in good standing under the
laws of the State of Kansas; (b) PrimeLink has all requisite
corporate power and authority to enter into this Agreement
and to carry out and perform its obligations under the terms
of this Agreement; (c) this Agreement has been duly
authorized, executed and delivered by PrimeLink and is a
valid and binding obligation of PrimeLink enforceable in
accordance with its terms, except as the same may be limited
by bankruptcy, insolvency, moratorium, and other laws of
general application affecting the enforcement of creditors'
rights; and (d) PrimeLink has all requisite power and
authority to require certain actions of its other Affiliates
to accomplish and provide the services as set forth in this
Agreement.
12.2. By WWI. WWI represents and warrants to PrimeLink
as follows: (a) WWI is a corporation duly organized, validly
existing, and in good standing under the laws of the State
of Delaware, (b) WWI has all requisite corporate power and
authority to enter into this Agreement and to carry out and
perform its obligations under the terms of this Agreement;
(c) this Agreement has been duly authorized, executed, and
delivered by WWI and is a valid and binding obligation of
WWI enforceable in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency, moratorium,
and other laws of general application affecting the
enforcement of creditors' rights; and (d) WWI has all
requisite power and authority to require certain actions of
its other Affiliates to accomplish and provide the services
as set forth in this Agreement.
13. Term and Termination.
13.1 Term. The term of this Agreement shall commence on the
Effective Date and continue for a period of eighteen (18)
months therefrom (the "Initial Term"). Upon the mutual
agreement of the parties, this Agreement may thereafter be
renewed for additional, successive one year terms
("Extension Term(s)").
13.2 Termination. The Agreement may be terminated (a) upon
the mutual agreement of the parties, (b) upon the commission
of a material breach of the terms and conditions hereof by
one of the parties (the "breaching party") and the failure
of the breaching party to cure or remedy such breach or
default within thirty (30) days following receipt of written
demand from the non-breaching party to do so, (c) upon one
of the party's insolvency, assignment for the benefit of
creditors, appointment or sufferance of appointment of a
trustee, a receiver or similar officer, or commencement of a
proceeding seeking reorganization, rehabilitation,
liquidation or similar relief under the bankruptcy,
insolvency or similar debtor-relief statutes, or (d) at
WWI's sole discretion, if there is a material change in the
senior management of PrimeLink; however, if, in connection
with such change, an employee of PrimeLink leaves the
employment of PrimeLink, neither WWI nor any Affiliate shall
employ or contract with any former employee of PrimeLink for
a period of One (1) year or (e) at WWI's sole discretion,
upon a change of control in the ownership of PrimeLink or
any aggregate transfer of at least twenty-one percent (21%)
interest resulting in a total transfer of 21% of the
ownership interests in PrimeLink to or from any individual
or entity during the term of this Agreement; however,
PrimeLink and if Affiliates reserve the right for a public
offering at PrimeLink's sole discretion.
13.3 Assignment. Upon termination of this Agreement
pursuant to this Section 13, PrimeLink shall upon WWI's
request exercise PrimeLink's right under the language set
forth in Section 18.5 to assign to WWI any third party
agreements related to the provision of products or services
by PrimeLink pursuant to this Agreement.
13.4 Effect of Termination. Upon any termination or
expiration of this Agreement, each party will be released
from all obligations and liabilities to the other occurring
or arising after the date of such termination or expiration
of the transactions contemplated hereby, except with respect
to those obligations which by their nature are designed to
survive termination or expiration; provided that no such
termination will relieve PrimeLink or WWI from any liability
arising from any breach of this Agreement occurring prior to
termination or expiration.
The parties further agree that upon any termination or
expiration of this Agreement PrimeLink will immediately
deliver to WWI in Tulsa any material relating to the design
and manufacture, including but not limited to drawings,
specifications, prototypes, printed circuit boards,
component inventories and undelivered products or assembled
inventories, relating to Telemetry Devices manufactured for
WWI by PrimeLink as described in Sections 3 and 4 herein.
WWI and PrimeLink shall complete all existing CSAs in place
at the time of termination. WWI and PrimeLink may continue
as a buyer and reseller of the each other's respective
products and services under a separate agreement to be
negotiated at the time of termination or expiration of this
Agreement.
14. Confidentiality. The parties acknowledge that they are
subject to that certain Joint Non-Disclosure Agreement executed
between the parties, a copy of which is attached hereto as
Exhibit C and the terms of which are incorporated herein by this
reference. The parties further acknowledge that the disclosure
of confidential or proprietary information hereunder shall
constitute "Discussion" of "Confidential Information" (as such
terms are used in the Joint Non-Disclosure Agreement), and that
no disclosures shall be made in violation of such Joint Non-
Disclosure Agreement.
15. Notices. Any notice or other communication herein required
or permitted to be given shall be in writing and may be
personally served, sent by facsimile, or sent by an
internationally recognized overnight courier service, and shall
be deemed to have been received when (a) delivered in person or
received by facsimile (as evidenced by a facsimile confirmation
sheet) or (b) three (3) business days after delivery to the
office of such overnight courier service with postage prepaid and
properly addressed to the other party, at the following
respective addresses:
To PrimeLink: To WWI:
PrimeLink Williams Wireless, Inc.
Attention: Don Wallace Attention: James D. Cunningham
9875 Widmer Road Tulsa Union Depot
Lenexa, KS 66215 111 East First Street
Tulsa, OK 74103
Telephone #: (913) 859-0700 Telephone #: (918) 588-4879
Facsimile #: (913) 859-9233 Facsimile #: (918) 561-6024
or to such other address or addresses as either party may from
time to time designate as to itself by like notice.
16. Patent/Copyright Indemnity. PrimeLink agrees it will at its
sole cost and expense, defend, indemnify and hold harmless WWI
against all claims, liens, demands, damages, liability, actions,
causes of action, losses, judgments, costs and expenses of every
nature (including investigation costs and expenses, settlement
costs, and attorney's fees and expenses) (collectively,
"Claim(s)") to the extent such Claims arise out of, result from,
or are attributable to the negligence, error, omission, or
willful misappropriation of any patent, copyright, trade secret,
trademark, or confidential information (hereinafter called
"Intellectual Property") by PrimeLink or its employees,
subcontractors, consultants, representatives, or agents;
provided, however, WWI gives PrimeLink prompt notice in writing
of the Claims. PrimeLink shall defend, indemnify and hold WWI
harmless pursuant to this Section during the entire claim
process, regardless of whether the Claim is settled or goes to
trial.
If a judgment or settlement is obtained or reasonably
anticipated against WWI's use of any Intellectual Property for
which PrimeLink has indemnified WWI, PrimeLink shall at
PrimeLink's sole cost and expense promptly modify the item or
items which were determined to be infringing, acquire a license
or licenses on WWI's behalf to provide the necessary rights to
WWI to eliminate the infringement, or substitute the Intellectual
Property with non-infringing Intellectual Property which provides
WWI the same functionality. If none of such options is
commercially reasonable, PrimeLink shall refund the license fee
to WWI less reasonable lease charges for the time used.
WWI agrees it will at its sole cost and expense, defend,
indemnify and hold harmless PrimeLink against all Claims, to the
extent such Claims arise out of, result from, or are attributable
to the negligence, error, omission, or willful misappropriation
of any Intellectual Property by WWI or its employees,
subcontractors, consultants, representatives, or agents;
provided, however, PrimeLink gives WWI prompt notice in writing
of the Claims. WWI shall defend, indemnify and hold PrimeLink
harmless pursuant to this Section during the entire claim
process, regardless of whether the Claim is settled or goes to
trial.
If a judgment or settlement is obtained or reasonably
anticipated against PrimeLink's use of any Intellectual Property
for which WWI has indemnified PrimeLink, WWI shall at WWI's sole
cost and expense promptly modify the item or items which were
determined to be infringing, acquire a license or licenses on
PrimeLink's behalf to provide the necessary rights to PrimeLink
to eliminate the infringement, or substitute the Intellectual
Property with non-infringing Intellectual Property which provides
PrimeLink the same functionality. If none of such options is
commercially reasonable, WWI shall refund the license fee to
PrimeLink less reasonable lease charges for the time used.
17. Limitation of Liability
17.1 EACH PARTY'S TOTAL AGGREGATE LIABILITY FOR ANY CLAIMS,
LOSSES, OR DAMAGES ARISING UNDER THIS AGREEMENT OR THE
SERVICES PERFORMED HEREUNDER (OTHER THAN FOR PROFESSIONAL
NEGLIGENCE WHICH IS COVERED BY THE NEXT SENTENCE) SHALL BE
LIMITED TO THE LESSER OF THE TOTAL AMOUNT RECEIVED BY EITHER
PARTY PURSUANT TO THIS AGREEMENT OR $l,000,000.
17.2 NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, SPECIAL,
EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHETHER UNDER
CONTRACT, TORT OR OTHER CAUSE OF ACTION, INCLUDING, BUT NOT
LIMITED TO, ANY DAMAGES, LOSS OR EXPENSES ARISING FROM THE
PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY HARDWARE
OR SOFTWARE, INCORRECT THIRD PARTY CONTENT, THE OTHER
PARTY'S LOST PROFITS, LOST BUSINESS, LOST DATA, OR LIABILITY
OR INJURY TO THIRD PERSONS, WHETHER FORESEEABLE OR NOT AND
REGARDLESS OF WHETHER THE PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IF THIS PROVISION IS IN
CONFLICT WITH OTHER CONTRACTUAL TERMS AND CONDITIONS, IT IS
UNDERSTOOD BY THE PARTIES THAT THIS PROVISION WILL, IN ALL
CASES, PREVAIL.
18. Miscellaneous.
18.1 Force Majeure. Neither party will be liable for any
nonperformance under this Agreement due to causes beyond its
reasonable control, including earthquakes, landslides,
strikes, lockouts, labor troubles, failure of power, riots,
insurrection, war, acts of God or other reason of like
nature that could not have been reasonably anticipated by
the non-performing party as of the Effective Date and that
cannot be reasonably avoided or overcome; provided that the
nonperforming party gives the other party written notice of
such cause promptly, and in any event within fifteen (15)
calendar days of discovery thereof.
18.2 Announcements. The parties shall consult and confer
with each other prior to making any public announcement
concerning any of the transactions contemplated in this
Agreement. Neither party shall make or issue any public
announcement concerning the subject matter of this Agreement
without ten days written notice to the other party or the
prior written consent of the other party.
18.3 Applicable Law. The validity, construction, and
performance of this Agreement shall be governed by and
construed in accordance with the laws of the State of
Delaware, without regard to the principles of conflict of
laws.
18.4 Assignment. Neither party shall assign this Agreement
or its rights or obligations herein without the prior
written consent of the other party; except that WWI shall
have the current or future right to, without the prior
consent of PrimeLink, assign this Agreement to any parent,
or Affiliate.
18.5 Assignment of Third Party Agreements. PrimeLink agrees
to insert the following paragraph into all third party
contracts into which PrimeLink enters relating to products
or services to be provided by PrimeLink pursuant to this
Agreement: "This Agreement and all rights and obligations
herein shall be wholly assignable by PrimeLink to Williams
Wireless, Inc. without consent."
18.6 Non-Solicitation. WWI shall not solicit for employment
any employee of PrimeLink for a period that is the lesser of
(i) the term during which this Agreement is in effect, or
(ii) two (2) years from the Effective Date of this
Agreement.
IN WITNESS WHEREOF, PrimeLink and WWI have executed this
Agreement as of the Effective Date.
Williams Wireless, Inc. PrimeLink
By: /S/ S. Miller Williams By: /S/ D. I. Wallace
Name: S. Miller Williams Name: D. I. Wallace
Title: President Title: President
Williams communications Group Inc.
F/K/A The Wiltech Group Inc.
hereby executes this agreement for the sole purpose of amending
the Joint Nondisclosure Agreement as described in section 14 of
this agreement
By: /S/ S. Miller Williams
Name: S. Miller Williams
Title: Senior Vice President
