EXHIBIT 10.2
AGREEMENT FOR SALE AND PURCHASE
OF TELECOM BUSINESS ASSETS
BETWEEN: Saratoga Telecom Corp., a Nevada Corporation
0000 - 000xx Xxxxxx XX
Xxxxxxxx, XX 00000
("Buyer")
AND: Internet Interview Inc., a Florida Corporation
00000 Xxxxxxxx Xxxx. Xxxxx 000
Xxxxxxxx, XX 00000
("Seller")
RECITALS
A. Seller operates a business known as "Internet Interview Inc." which, among
other business activities, is developing a long distance prepaid calling
technology via the internet to serve certain Central and South American
countries (the "Telecom Business"). Seller owns or has the rights to
software, intellectual property rights, programs, contracts and other
tangible and intangible assets used in connection with the operation of the
Telecom Business.
B. Buyer is a wholly-owned subsidiary of Saratoga International Holdings Corp.
("SHCC") engaged in the acquisition of businesses for its future operations
including those specializing in e-commerce sales of products and services
and desires to purchase substantially all the assets used or useful, or
intended to be used, in the operation of Seller's Telecom Business.
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, the parties hereto do hereby agree as follows:
AGREEMENT
1. Effective Date The effective date of this Agreement shall be June 15, 1999,
or the date on which the last party executes an original or counterpart
copy of this Agreement, whichever is later ("Effective Date").
2. Purchase and Sale At the Closing, as defined in Section 12 herein, Seller
shall sell to Buyer and Buyer shall purchase from Seller the assets listed
in the attached Exhibit "2.0" (the "Telecom Assets"), which is incorporated
herein by this reference. The sale, transfer, assignment and delivery by
Seller of the Telecom Assets to Buyer shall be effected on the Closing
Date, as defined in said Section 12, by Seller's execution and delivery of
documents and instruments necessary to sell, transfer, assign and deliver
the Telecom Assets. At Closing, good, valid and marketable title to the
Telecom Assets shall be transferred, assigned and delivered by Seller to
Buyer free and clear of any and all liens, encumbrances, security
interests, claims and other restrictions or charges of any kind whatsoever.
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0. Purchase Price for the Telecom Assets/Payment of Purchase Price. The
purchase price for the Telecom Assets shall be common stock purchase
warrants to purchase up to 1,000,000 shares of Buyer's parent company,
SHCC's common stock. The purchase price shall be paid as follows:
a) On and effective on the Closing Date, or as soon as practicable,
thereafter SHCC shall issue to Seller or its assigns, warrants for
Seller or its assigns to acquire up to 1,000,000 shares of Buyer's
parent company, SHCC's common stock at $0.10 per share with terms and
conditions as set forth in the attached Exhibit "3(a)" which is
incorporated by this reference.
4. Personal Service Agreements
4.1 Employment Agreement The parties acknowledge that the willingness of
Buyer to enter into this Agreement is contingent upon the ability of
Buyer, as more particularly described in Section 13 herein, to retain
the services of Seller's Officer, Xxxxxx X. Xxxxxx ("Xxxxxx") for a
minimum of thirty-six (36) months after the Closing Date. Base salary
under the Employment Agreement shall be $5,000.00 per month payable on
the first business day of each month covered by the Employment
Agreement. The Employment Agreement shall include a provision, whereby
Xxxxxx shall be granted an option to purchase up to 250,000 shares of
SHCC's common stock at $0.10 per share under SHCC's Stock Incentive
Plan. The parties hereto agree to negotiate other terms and conditions
of the Employment Agreement and stock options to be included therein
and to execute such Employment Agreement on or before the Closing
Date, which will become part of this Agreement as Exhibit "4.1".
4.2 Consulting Agreement This Agreement is further contingent on Buyer and
AJAY Enterprises Inc. ("AJAY") executing a Consulting Agreement on or
before the Closing Date, which will become part of this Agreement as
Exhibit "4.2".
5. Board of Directors Upon closing, Seller shall be entitled to appoint one
member to SHCC's Board of Directors to serve as a Director until the next
annual meeting of the shareholders of SHCC or until his or her successor
shall have been duly qualified and elected.
6. This section is left blank intentionally.
7. Due Diligence Review Buyer and Seller shall permit their respective
employees, agents, accountants, legal counsel and other representatives to
have access to each others books, records, employees, counsel, accountants,
engineers and other representatives at all reasonable times for the purpose
of conducting their respective due diligence investigation. Each party will
make available to the other for examination and reproduction all documents
and data of every kind and character relating to this Agreement and the
transactions contemplated hereby, in possession or control of, or subject
to reasonable access by either party. All such due diligence investigation
shall be completed and each party shall notify the other in writing of the
satisfaction or removal of this due diligence review condition within six
(6) days of the Effective Date. Upon mutual agreement of the parties,
additional time may be allowed to complete such due diligence
investigation. Should a party ("Reviewing Party") become aware of any
information during its due diligence investigation which, in the opinion of
the Reviewing Party, could have material adverse impact on this Agreement
and/or the transactions contemplated hereby, the Reviewing Party shall
immediately notify the other party ("Receiving Party") in writing of such
information and the concerns which such information has caused. The
Receiving Party shall have a reasonable time to respond to those concerns.
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In the event that the concerns cannot be resolved to the satisfaction of
the Reviewing Party, the Reviewing Party shall have the right to terminate
this Agreement without further liability hereunder. Each party shall bear
the costs and expenses of its own due diligence investigation hereunder,
including the fees and expenses of professional advisors. Either party may
terminate this Agreement during the due diligence review period described
herein without any liability to the other party for damages, expenses or
failure to execute the Agreement.
8. Conduct of Business: Interim Operations Upon the Effective Date of this
Agreement provided for in Section 1 herein and pending the Closing and the
transactions contemplated thereby, Seller shall use its best efforts to
conduct its Telecom Business in a reasonable and prudent manner in
accordance with its past practices, to preserve its existing business
organizations and relationships with its employees, customers, suppliers
and others with whom it has a business relationship, to preserve and
protect its properties, and to conduct its business in compliance with
applicable laws and regulations.
8.1 Without the prior written consent of Buyer, Seller shall not:
a) merge into or with or consolidate with, any other corporation;
b) amend its articles of incorporation or bylaws;
c) issue any capital stock or other securities, or grant or enter
into any agreement to grant, any options, convertible rights,
warrants, calls, or agreements relating to its securities;
d) enter into, or terminate, any material agreement;
e) engage in any one or more activities or transactions outside the
ordinary course of business;
f) enter into any transaction or make any commitment which could
result in any of the warranties and representations of Seller
contained in this Agreement not being true and correct after the
occurrence of such transaction or event.
9. Warranties and Representations of Buyer Buyer warrants and represents to
Seller and Selling Shareholders as follows:
a) Buyer is a corporation duly organized under the laws of the State of
Nevada, validly existing and in good standing, is authorized to
exercise all its corporate powers, rights and privileges and has the
corporate power and authority to own and operate its properties and to
carry on its businesses as now conducted.
b) Buyer has all requisite legal and corporate power to execute and
deliver this Agreement, consummate the transactions contemplated
hereby and perform its obligations hereunder.
c) All corporate action on Buyer's part necessary for the authorization,
execution, delivery and performance of all obligations under this
Agreement and for the issuance and delivery of the consideration in
payment for Seller's Assets will be taken, and this Agreement
constitutes a legal, valid and binding obligation of Buyer enforceable
according to its terms.
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d) Neither the execution and delivery of this Agreement nor the carrying
out of any of the transactions contemplated hereby will:
i. violate or conflict with any of the terms and conditions or
provisions of the articles of incorporation or bylaws of Buyer;
ii. violate any legal requirement applicable to Buyer;
iii. violate, conflict with, result in a breach of, constitute a
default under, or accelerate or permit the acceleration of the
performance required by, or give any other party the right to
terminate, any contract or permit applicable to Buyer;
iv. result in the creation of any lien, charge or other encumbrance
on any property of Buyer; or
v. require Buyer to obtain or make any waiver, consent, action,
approval or authorization of, or registration, declaration,
notice or filing with, any private non-governmental third party
or any governmental authority.
e) It has no subsidiaries or affiliated companies and does not otherwise
own or control, directly or indirectly, any other corporation,
association or business entity.
f) No suit, action or other proceeding is pending or, to Buyer's best
knowledge, threatened before any governmental authority seeking to
restrain Buyer or prohibit entry into this Agreement or prohibit the
Closing, or seeking damages against Buyer or its properties as a
result of the consummation of this Agreement.
g) The current authorized capital stock of SHCC consists of Fifty Million
(50,000,000) shares of non-voting preferred stock, $0.001 per share
par value, of which 377,742, 8% redeemable convertible preferred
shares are issued and outstanding, and Two Hundred Million
(200,000,000) shares of common stock, entitled to vote, $0.001 par
value per share, of which 42,232,260 shares are issued and outstanding
as of April 30, 1999. There are no other securities, options,
warrants, or other rights to purchase any securities of SHCC
outstanding except as set forth in the attached Exhibit "9(g)" which
is incorporated herein by this reference. All outstanding securities
of SHCC are duly and validly issued, are fully paid and non-assessable
and were issued in compliance with all applicable federal and state
securities laws.
h) SHCC is a development stage company with little or no operating
history. It's only business activity to date has been to arrange
financing, hire management and other personnel and develop and
implement its business development plan.
i) The management prepared financial statements of SHCC are set forth in
Exhibit "9(i)" attached hereto and incorporated by this reference.
Other than as set forth therein, SHCC and Buyer have no contingent or
other liabilities nor any pending outstanding claims, suits or other
proceedings against them.
The warranties and representations of Buyer and SHCC set forth in hereunder are
exclusive of all other representations of Buyer and SHCC in this Agreement. All
representations and understandings of Buyer and SHCC are merged into this
Agreement and do not survive Closing.
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00. Warranties and Representations of Seller. Seller warrants and represents to
Buyer, as of the date hereof, as follows:
a.) It is a corporation duly organized under the laws of the State of
Florida, validly existing and in good standing, authorized to exercise
all its corporate powers, rights and privilege and has the corporate
power and authority to own and operate its properties and to carry on
its business as now conducted.
b.) Seller warrants and represents to Buyer that Seller has and will have
at Closing, legal and beneficial ownership of Seller's Telecom Assets,
free and clear of any and all liens and encumbrances or other
restrictions or limitations and has, and will have at Closing, all
required legal power and authority to transfer and convey the Telecom
Assets to Buyer.
c.) It has all requisite legal and corporate power to execute and deliver
this Agreement, consummate the transactions contemplated hereby and
perform its obligations hereunder.
d.) All corporate action on its part necessary for the authorization,
execution, delivery and performance of all obligations under this
Agreement will be taken, and this Agreement constitutes a legal, valid
and binding obligation enforceable according to its terms.
e.) There are no claims, actions, suits, investigations or proceedings
against it pending or, to its knowledge , threatened in any court or
before or by any governmental authority, or before any arbitrator,
that might have an adverse effect on it or its business, and to its
knowledge, there is no basis for any such claim, action, suit,
investigation or proceeding that is likely to result in a judgment,
decree or order having an adverse effect on it or its business. It is
not in default under, and no condition exists that would (i)
constitute a default under, or breach or violation of, any legal
requirement, permit or contract applicable to its business or (ii)
accelerate or permit the acceleration of the performance required
under, or give any party the right, to terminate any contract.
f.) No suit, action or other proceeding is pending or, to its knowledge,
threatened before any governmental authority seeking to restrain or
prohibit its entry into this Agreement or prohibit the Closing, or
seeking damages against it as a result of the consummation of this
Agreement.
g.) Neither the execution and delivery of this Agreement nor the carrying
out of any of the transactions contemplated hereby will:
i. violate or conflict with any of the terms and conditions or
provisions of its articles of incorporation or bylaws;
ii. violate any legal requirement applicable to it;
iii. violate, conflict with, result in a breach of, constitute a
default under, or accelerate or permit the acceleration of the
performance required by, or give any other party the right to
terminate, any contract or permit applicable to it ;
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iv. result in the creation of any lien, charge or other encumbrance
on any of its property other than as provided for herein; or
v. require it to obtain or make any waiver, consent, action,
approval or authorization of, or registration, declaration,
notice or filing with, any private non-governmental third party
or any governmental authority.
11. Covenants
11.1 Approval of Directors Prior to the effective date of this Agreement,
Buyer and Seller shall each hold a special meeting of their respective
Boards of Directors to approve the Agreement and the transactions
contemplated thereby.
11.2 Approval of Seller's Shareholders Seller shall (a) cause a special
meeting of its shareholders to be duly called and held in accordance
with the laws of the State of Florida, its Articles of Incorporation
and Bylaws as soon as reasonably practicable for the purpose of voting
on the adoption and approval of this Agreement, (b) recommend to its
shareholders approval of the Agreement, (c) use its best efforts to
obtain the necessary approval of its shareholders, and (d) take all
other action necessary to effect the Closing.
11.3 Third Party Consents Buyer and Seller each agree to use their
respective best efforts to obtain, as soon as reasonably practicable,
all permits, authorizations, consents, waivers and approvals from
third parties or governmental authorities necessary to consummate this
Agreement and the transactions contemplated hereby.
12. Closing Subject to the satisfaction of the conditions set forth in Sections
13 and 14 herein, the closing of the transactions contemplated hereby (the
"Closing") shall be held at Saratoga Telecom Corp. 0000 000xx Xxx. XX,
Xxxxxxxx, Xxxxxxxxxx by no later than June 18, 1999, or, if all of the
conditions set forth in Section 13 and Section 14 of this Agreement have
not been satisfied or waived, no later than June 30, 1999. The date upon
which the Closing occurs is hereinafter referred to as the "Closing Date".
If by the close of business on June 30, 1999, Closing has not occurred,
then either party hereto may terminate this Agreement by written notice to
such effect to the other party without liability to any other party to this
Agreement unless the reason for the Closing having not occurred is (i) such
party's willful breach of this Agreement, or (ii) , if all of the
conditions to such party's obligations set forth in Sections 13 and 14
herein have been satisfied or waived in writing by the date scheduled for
the Closing, the failure of such party to perform its obligations under
this Agreement on such date. However, any termination pursuant to this
Section 12 shall not relieve any party hereto who was responsible for
Closing having not occurred of liability for such party's willful breach of
this Agreement or the failure of such party to perform its obligations
under this Section 12 on such date.
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00. Conditions to Obligations of Buyer The obligations of Buyer to carry out
the transactions contemplated by this Agreement are subject, at the option
of the Buyer, to the satisfaction, or waiver by Buyer, of the following
conditions:
a) All warranties and representations of Seller contained in this
Agreement shall be true and correct in all material respects as of the
Closing and Seller shall have performed and satisfied in all material
respects all agreements and covenants required by this Agreement to be
performed or satisfied by it at or prior to the Closing.
b) As of the Closing Date, no suit, action, or other proceeding, shall be
pending or threatened before any court or governmental agency seeking
to restrain Buyer or prohibit the Closing or seeking damages against
Buyer as a result of the consummation of this Agreement.
c) Since the date of this Agreement and up to and including the Closing
there have not been:
i. any changes in the business, operations, prospects or financial
condition of Seller that had or might have a material adverse
effect on Seller's Telecom Business; or ii. any damage,
destruction or loss to Seller that had or might have an adverse
effect on its Telecom Business.
d) Buyer shall have received the opinion of counsel to Seller, dated as
of the Closing Date, addressed to Buyer and in the form and substance
reasonably satisfactory to Buyer, as set forth in Exhibit "13(d)"
attached hereto:
e) Seller shall have furnished Buyer with a copy of all necessary
corporate action on its behalf approving Seller's execution, delivery
and performance of this Agreement.
f) Buyer shall have completed its due diligence investigation and the
results thereof have not revealed that any of the warranties and
representations of Seller set forth herein are untrue or incorrect in
any respect or otherwise unsatisfactory to Buyer or that exceptions,
if any, have been resolved to the satisfaction of Buyer.
g) Buyer shall have received written evidence, in form and substance
satisfactory to it, of the consent to the transactions contemplated by
this Agreement of all governmental and private third parties where the
absence of any such consent would result in a violation of law or
breach or default under any agreement to which Seller is a party.
h) Buyer shall have entered into an Employment Agreement with Xxxxxx, as
described in Section 4.1 herein, to provide management and technical
services to Buyer for a minimum of thirty-six (36) months from the
Closing Date.
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i) Buyer shall have entered into a Consulting Agreement with AJAY, as
described in Section 4.2 herein.
j) Prior to the Closing Date, Buyer shall have secured a commitment for
financing sufficient to fund Seller's initial $50,000 operating budget
requirements as set forth in Exhibit "13(i)" attached hereto.
14. Conditions to Obligations of Seller The obligations of Seller to carry out
the transactions contemplated by this Agreement are subject, at the option
of the Seller, to the satisfaction, or waiver by Seller, of the following
conditions:
a) Buyer shall have furnished Seller with copies of all necessary
corporate action on its behalf approving the execution, delivery and
performance of this Agreement.
b) All warranties and representations of Buyer contained in this
Agreement shall be true and correct in all material respects as of the
Closing and Buyer shall have performed and satisfied in all material
respects all agreements and covenants required by this Agreement to be
performed or satisfied by it at or prior to the Closing.
c) As of the Closing Date, no suit, action, or other proceeding, shall be
pending or threatened before any court or governmental agency seeking
to restrain Seller or prohibit the Closing or seeking damages against
Buyer or Seller as a result of the consummation of this Agreement.
d) Seller shall have completed its respective due diligence
investigations and the results thereof have not revealed that any of
the warranties and representations of Buyer set forth herein are
untrue or incorrect in any respect or otherwise unsatisfactory to
Seller or that exceptions, if any, have been resolved to the
satisfaction of Seller.
15. Survival and Indemnification
a) All representations and warranties of Seller made in this Agreement
shall survive the Closing Date of this Agreement.
b) Seller agrees to indemnify and hold harmless Buyer and SHCC from and
against any and all damages, liabilities, obligations, penalties,
fines, judgments, claims, deficiencies, losses, costs, expenses and
assessments arising out of, resulting from or in any way related to
(i) a breach of, or failure to perform or satisfy any of, the
warranties and representations, covenants and agreements made by
Seller in this Agreement or in any document or certificate delivered
by Seller at the Closing, (ii) the existence of any liabilities or
obligations of Seller.
16. News Releases Prior to Closing neither party shall issue or approve a news
release or other announcement concerning the transactions contemplated by
this Agreement without the prior written consent of the other as to the
contents of the announcement and its release, which approval shall not be
unreasonably withheld.
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00. No Broker To the best of the knowledge and belief of the parties hereto
there are no agents, brokers, finders or other persons or entities
representing either party for which acquisition fees are payable in
connection with this transaction.
18. Expenses Each party shall bear the costs and expenses of its own fees and
expenses of professional advisors and other costs relating to this
Agreement.
19. Entire Agreement This Agreement, together with all exhibits attached
hereto, constitutes the entire agreement between the parties with respect
to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written, by
any of the parties or by any officer or representative of any party. No
amendment or modification of this Agreement shall be binding unless
executed in writing by the party to be bound thereby.
20. Binding Effect This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns;
but neither this Agreement nor any of the rights, benefits or obligations
hereunder shall be assigned, by operation of law or otherwise, by either
party hereto without the prior written consent of the other party, which
approval shall not be unreasonably withheld.
21. Survival of Warranties and Representations All warranties and
representations, covenants and agreements by Seller shall expressly survive
the Closing.
22. Governing Law This Agreement and the documents and instruments delivered
pursuant hereto shall be governed by and construed in accordance with the
laws of the State of Nevada. Each party hereto irrevocably submits to the
jurisdiction of the court of the State of Nevada, in any action or
proceeding arising out of or relating to this Agreement. Each party hereto
consents to service of process by any means authorized by applicable law
and waives the defense of an inconvenient form to the maintenance of such
action or proceeding in any such court.
23. Severability The provisions of this Agreement are severable. If any one or
more provisions may be determined to be illegal or otherwise unenforceable,
in whole or in part, the remaining provisions, to the extent enforceable,
shall nevertheless be binding and enforceable.
24. Non-Waiver Failure by any party at any time to require performance of the
other party of the provisions of this Agreement shall in no way affect any
party's rights hereunder to enforce the same, nor shall any such waiver by
either party of any breach be held to be a waiver of any succeeding breach
or waiver of this clause.
25. Remedies The rights and remedies provided by this Agreement are cumulative
and the use of any one right or remedy by any party hereto shall not
preclude or constitute a waiver of its rights to use any or all other
remedies. Such rights and remedies are given in addition to any other
rights and remedies a party may have by law, statute or otherwise.
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26. Attorneys' Fees In the event the services of an attorney at law are
necessary to enforce any of the terms of this Agreement or to resolve any
disputes arising under this Agreement, the prevailing party shall be
entitled to recover its attorney's fees as determined by the appropriate
trial or appellate court.
27. Counterparts and Facsimile Signature This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument.
Execution and delivery of this agreement by exchange of facsimile copies
bearing the facsimile signature of a party hereto shall constitute a valid
and binding execution and delivery of this Agreement by such part. Such
facsimile copies shall constitute enforceable original documents.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
indicated below.
Buyer: Seller:
Saratoga Telecom Corp. Internet Interview Inc..
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxx
---------------------- --------------------
Xxxxxxx X. Xxxxxxx, President & CEO
Dated: 6/16/99 Dated: 6/16/99
Buyer's Parent Company: Selling Shareholder:
As to provisions of this
Agreement involving Saratoga /s/ Xxxxxx X. Xxxxxx
International Holdings Corp.
("SHCC") Dated: 6/16/99
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxx, President & CEO
Dated: 6/16/99
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Exhibit "3(f)"
WARRANT PROVISIONS
In accordance with Section 3(c), Buyer shall issue to Seller or its assigns,
Common Stock Purchase Warrants to purchase up to 1,000,000 shares of Buyer's
parent company, SHCC's common stock on the following terms and conditions:
1. The Warrants are to be issued to the following individuals:
* Xxxxxx Xxxxxx 500,000 Warrants
* Xxx Xxxxxx 500,000 Warrants
2. The exercise price shall be $0.10 per share;
3. The Warrants may be exercisable, in whole or in part, at any time following
Closing; in minimum blocks of 100,000 shares each.
4. The Shares of Common Stock issuable upon the exercise of the Warrants shall
be subject to restrictions on transferability under the Securities Act of
1933 and applicable state securities laws;
5. SHCC shall file an appropriate registration statement under the Securities
Act of 1933 covering the shares of common stock issuable upon the exercise
of the warrants and have such registration state declared effective within
one year from the date of exercise of the Warrants.
6. Term of warrant is 5 years from date of closing.
At Closing or as soon as practicable thereafter, SHCC will deliver warrant
documents necessary to fulfill this provision (Section 3f) of the Agreement.
EXHIBIT "9(g)"
Except as provided for in the Agreement, SHCC granted options to purchase SHCC's
stock to X. Xxxx & Associates in conjunction with a corporate public relations
service contract between SHCC and X. Xxxx & Associates a copy of which will be
made available to Seller on or prior to the Closing Date.
SHCC also granted options to two of its outside Directors to purchase SHCC's
stock under SHCC's stock incentive plan.
EXHIBIT "9(i)"
(SHCC's financial statements to be provided by SHCC)
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EXHIBIT "13(d)"
OPINION OF SELLER'S COUNSEL
, 1999
Xxxxxxx X. Xxxxxxx, President and CEO
Saratoga Telecom Corp.
0000 - 000xx Xxxxxx XX
Xxxxxxxx, XX 00000
Dear Xx. Xxxxxxx:
We have acted as counsel to Internet Interview Inc. (the "Company"), in
connection with that certain Agreement for Sale and Purchase of Telecom Business
Assets, dated ______________, 1999 (the "Agreement"), between the Company and
Saratoga Telecom Corp. ("Buyer"), providing for the sale of all of the Company's
telecom business assets.
This opinion is being rendered pursuant to Section 13(d) of the Agreement.
Unless otherwise defined herein, the definitions of capitalized terms used in
this opinion shall be the same as those set forth in the Agreement.
In arriving at this opinion, we have examined originals or copies, certified to
our satisfaction, of the following:
1. The Agreement;
2. The Articles of Incorporation and by-laws of the Company;
3. The corporate records of the Company;
4. Such other records, documents and papers as we deemed necessary to examine
for purposes of this opinion.
Based on the above, and subject to the qualifications set forth below, it is our
opinion that:
1. The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Florida and has full power to carry
on its business as it is now being conducted and is duly qualified to do
business and is in good standing as a foreign corporation in all other
states where the nature of such Company's business or the location of such
Company's assets make such qualification necessary and where the failure to
so qualify would have a material adverse effect on such Company or its
assets.
2. The Company has full corporate power and authority to enter into the
Agreement, and perform its obligations thereunder, and the execution,
delivery and performance of the Agreement by the Company have been duly and
validly authorized by all requisite corporate action and the Agreement has
been duly executed and delivered by the Company.
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3. The Agreement is valid and binding upon the Company and is enforceable
against the Company in accordance with its terms except as limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights in general. The enforceability of the obligations of the
Company under the Agreement is, with respect to the availability of
equitable remedies, also subject to general principles of equity and the
discretion of the court having jurisdiction thereof.
4. Neither the execution nor delivery of the Agreement by the Company nor the
consummation of the transactions contemplated thereby will constitute a
default or an event which would with notice or lapse of time or both
constitute a default under or violation or breach of (i) the Company's
Articles of Incorporation or Bylaws, or (ii) to the best of our knowledge,
any material indenture, license, lease, agreement or other instrument or
any writ, judgment, or decree to which any Company is a party or by which
any Company or its properties may be bound nor would such execution,
delivery or consummation constitute an event which would permit any party
to any agreement or instrument to terminate it or to accelerate the
maturity of any indebtedness or obligation of any Company or an event that
would result in the creation or imposition of any lien or encumbrance on
any asset of any Company.
5. No action of or filing with any governmental or public body or authority is
required to authorize or is otherwise required for the validity of
execution, delivery and performance by the Company of the Agreement.
6. We do not know of or have reason to believe that the Company is a party to
any pending suit, action, investigation or inquiry by any governmental
body, or arbitration proceedings or any material labor dispute relating to
or affecting any Company, its assets or its business.
7. No fact or circumstance has come to our attention which gives us cause to
believe that any representation or warranty by any Company set forth in the
Agreement is untrue in any material respect.
8. To the best of our knowledge, there is no governmental permit, license,
certificate of inspection, authorization, filing or registration which is
material to the Company's business and which has not been secured or made.
None of the transactions contemplated by the Agreement will terminate or
violate, either by virtue of the terms thereof or because of the
non-assignability thereof, any governmental permit, license, certificate of
inspection, other authorization, filing or registration necessary to the
conduct of the Company's business.
We have assumed that documents we have reviewed in connection with this opinion
which purport to have been executed by parties other than the Company have been
duly executed by such parties and that such parties had all requisite power to
enter into and perform all obligations thereunder, that execution and delivery
thereof has been duly authorized by all requisite action and that the subject
instruments are valid and binding upon said parties.
Page E-98
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We have assumed the authenticity of all documents submitted to us as originals,
and the conformity to originals of all documents submitted to us as copies.
EXHIBIT "4.1"
Employment Agreement
DATE: June 16, 1999
PARTIES: Saratoga Telecom, Corp, a wholly-owned subsidiar (the "Company")
of Saratoga International Holdings Corp.
0000 - 000xx Xxxxxx XX
Xxxxxxxx, XX 00000
Xxx Xxxxxx ("Employee")
RECITAL
The Company desires to employ and retain the unique experience, abilities,
and services of Employee to perform certain duties pursuant to the terms and
conditions described herein.
AGREEMENT
The parties agree as follows:
1. EMPLOYMENT
1.1 Term. The Company agrees to employ Employee as President - Chief
Operating Officer for a term commencing on June 16, 1999 and
continuing until terminated in accordance with Section 5 herein.
Employee acknowledges that his initial hire date is June 16,
1999.
Page E-99
151
1.2 Duties. Employee accepts employment with the Company on the terms
and conditions set forth in this Agreement, and agrees to devote
his full time and attention (reasonable periods of illness
excepted) to the performance of his duties as President - Chief
Operating Officer under this Agreement. Employee shall perform
his duties and shall exercise such specific authority as may be
assigned to Employee from time to time. In performing such
duties, Employee shall be subject to the direction and control of
the Board of Directors of the Company. Employee further agrees
that in all aspects of such employment, Employee shall comply
with the policies, standards, and regulations of the Company
established from time to time, and shall perform his duties
faithfully, intelligently, to the best of his ability, and in the
best interest of the Company. The devotion of reasonable periods
of time by Employee for personal purposes, outside business
activities, or charitable activities shall not be deemed a breach
of this Agreement, provided that such purposes or activities do
not materially interfere with the services required to be
rendered to or on behalf of the Company.
2. COMPENSATION
2.1 Compensation. The compensation to be paid Employee for services
rendered under this Agreement shall be as set forth in schedule A
attached hereto.
2.2 Other Benefits. Base compensation and any bonus compensation paid
to Employee shall be in addition to any contribution made by the
Company for the benefit of Employee to any qualified retirement
plan which may be established by the Company for the exclusive
benefit of its employees. The Company shall provide to Employee
and Employee's family the same benefits that the Company may
provide to other similarly employed personnel and their families,
subject to Employee's satisfaction of the respective eligibility
conditions for such benefits.
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152
3. CONFIDENTIALITY
3.1 Confidentiality. Employee acknowledges and agrees that all
planning information, lists of the Company's clients, financial
information, and other Company data related to its business
("Confidential Information") are valuable assets of the Company.
Except for information that is a matter of public record,
Employee shall not, during the term of this Agreement or after
the termination of employment with the Company, disclose any
Confidential Information to any person or use any Confidential
Information for the benefit of Employee or any other person,
except with the prior written consent of the Company.
3.2 Return of Documents. Employee acknowledges and agrees that all
originals and copies of records, reports, documents, lists,
plans, drawings, memoranda, notes, and other documentation
related to the business of the Company or containing any
Confidential Information shall be the sole and exclusive property
of the Company, and shall be returned to the Company upon the
termination of employment with the Company or upon the written
request of the Company.
3.3 Injunction. Employee agrees that it would be difficult to measure
damage to the Company from any breach by Employee of Section 3.1
or 3.2 and that monetary damages would be an inadequate remedy
for any such breach. Accordingly, Employee agrees that if
Employee shall breach or take steps preliminary to breaching
Section 3.1 or 3.2, the Company shall be entitled, in addition to
all other remedies it may have at law or in equity, to an
injunction or other appropriate orders to restrain any such
breach, without showing or proving any actual damage sustained by
the Company.
3.4 No Release. Employee agrees that the termination of employment
with the Company or the expiration of the term of this Agreement
shall not release Employee from any obligations under Section
3.1, 3.2 or 3.3.
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153
4. EXPENSES
Employee shall be entitled to reimbursement from the Company for
reasonable expenses necessarily incurred by Employee in the
performance of Employee's duties under this Agreement, upon
presentation of vouchers indicating in detail the amount and business
purpose of each such expense and upon compliance with the Company's
reimbursement policies established from time to time.
5. TERMINATION
5.1 Term of Agreement. The term of this Agreement shall be for three
years beginning with the initial hire date set forth in Section
1.1 to this Agreement unless terminated in accordance with the
provisions set forth herein. This Agreement may be terminated at
any time upon the mutual written agreement of the Company and
Employee.
5.2 Immediate Termination. The employment of Employee by the Company
may be terminated immediately in the sole discretion of the
Company upon the occurrence of any one of the following events:
5.2.1Employee willfully and continuously fails or refuses to
comply with the policies, standards, and regulations of the
Company established from time to time;
5.2.2Employee engages in fraud, dishonesty, or any other act of
misconduct in the performance of Employee's duties on behalf
of the Company;
5.2.3Employee fails to perform any provision of this Agreement
to be performed by Employee;
Page E-102
154
5.2.4All or substantially all the assets of the Company are
sold, transferred, or otherwise disposed of, the Company's
assets are distributed to its shareholders in liquidation,
or the Company's business is discontinued; or
5.2.5Employee suffers a permanent disability. For purposes of
this Agreement. "permanent disability" shall be defined as
Employee's inability, due to illness, accident, or other
cause, to perform the majority of Employee's usual duties
for a period of ninety (90) days or more despite reasonable
accommodation by the Company.
5.3 Proration of Base Compensation. Upon the termination of
employment, the base compensation payable to Employee pursuant to
Section 3.1 shall be prorated to the date of such termination. In
addition, Employee shall receive any previously earned but unpaid
bonus compensation.
6. REPRESENTATIONS AND WARRANTIES OF EMPLOYEE
Employee represents and warrants to the Company that there is no employment
contract or any other contractual obligation to which Employee is subject which
prevents Employee from entering into this Agreement or from performing fully
Employee's duties under this Agreement.
7. COVENANT NOT TO COMPETE
For a period of five (5) years from the initial hire date set forth in
Section 1.1 of this Agreement and including and during the term of his
employment under this Agreement, Employee shall not, directly or indirectly, as
proprietor, partner, limited partner, member of a limited liability company,
shareholder, officer, director, employee, agent or representative, engage in a
Competitive Business Activity. "Competitive Business Activity" shall mean the
Page E-103
155
usual and customary products and services provided by the Company. In addition,
during the five year term set forth in this Section 7, Employee shall not,
directly or indirectly, hire the employees of the Company to engage in a
Competitive Business Activity nor shall Employee solicit any employees or
customers to leave the Company.
The parties hereto acknowledge that consideration for Employee to enter
into this covenant not to compete is included in this Agreement.
8. MISCELLANEOUS PROVISIONS
8.1 The waiver by either the Company or Employee of a breach of any
provision of this Agreement will not operate by either the
Company or Employee as a waiver of any subsequent breach by
either the Company or Employee.
8.2 This Agreement shall be binding upon and shall inure to the
benefit of both the Company and Employee and their respective
successors, heirs, and legal representatives; however, neither
this Agreement nor any rights hereunder may be assigned by either
the company or Employee without the written consent of the other
party.
8.3 No amendment or variation of the terms and conditions of this
Agreement shall be valid unless it is in writing and signed by
the Company and Employee.
8.4 In the event suit or action is instituted to enforce any of the
terms of this Agreement, the prevailing party shall be entitled
to recover from the other party such sum as the Court may adjudge
reasonable as attorney's fees at trial or on appeal, in addition
to all other sums provided by law.
IN WITNESS WHEREOF, this Agreement is executed on the day and year first
above written.
"Company" Saratoga Telecom Corp.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxx X Xxxxxxx, President & CEO
"Employee" /s/ Xxxxxx X. Xxxxxx
--------------------
Xxx Xxxxxx
Page E-104
156
SCHEDULE A
TO
Employment Agreement Between
Saratoga Telecom Corp. and Xxx Xxxxxx
Compensation
Base Salary
Base salary $5,000 per month payable on the first day of each month
throughout the term of this agreement.
Performance Incentive Bonus
A performance incentive bonus to be determined by the Board of Directors.
Employee Stock Options
Employee shall be entitled to receive options of up to 250,000 shares of
the parent company, Saratoga International Holdings Corp. ("SIHC") exercisable
at $0.10 per share subject to the terms and conditions set forth in SIHC's Stock
Incentive Plan.
Automobile Allowance
Employee shall be entitled to receive an allowance for business use of
Employee's vehicle of $500.00 per month payable the first day of each month
throughout the term of this agreement. Employee shall be responsible for all
expenses relating to Employee's vehicle and for maintaining proper records for
income tax reporting purposes. Employee shall secure an endorsement from
Employee's insurance carrier naming the Company as additional beneficiary with
comprehensive liability coverage of not less than $500,000 per occurrence.
Page E-105
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Exhibit 4.2
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into this
day of June, 1999, by and between AJAY Enterprises Inc., (the "Consultant"),
whose principal place of business is 00000 Xxxxxxxx Xxxx. Xxxxx #000, Xxxxxxxx
XX 00000 and Saratoga Telecom Corp. (the "Company"), whose principal place of
business is at 0000 - 000xx Xxxxxx XX, Xxxxxxxx, XX 00000.
WHEREAS, the Consultant is in the business of providing management
consulting and advisory services; and
WHEREAS, the Company deems it to be in its best interest to retain the
Consultant to render to the Company management consulting and advisory services,
and
WHEREAS, the Consultant is ready, willing and able to render such
consulting and advisory services to the Company as hereinafter described on the
terms and conditions more fully set forth below.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth in this Agreement, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows.
1. Consulting Services. The Company hereby retains the Consultant as an
independent consultant to the Company and the Consultant hereby accepts and
agrees to such retention. The Consultant shall render to the Company such
services as set forth on Exhibit A, attached hereto and by reference
incorporated herein.
It is acknowledged and agreed by the Company that the Consultant carries no
professional licenses, other than any that may be listed on Exhibit A, and
is not rendering legal advice or performing accounting services, nor acting
as an investment advisor or broker-dealer within the meaning of applicable
state and federal securities laws. It is further acknowledged and agreed by
the Company that the consulting advisory services to be provided to the
Company hereunder shall not be rendered in connection with the offer and
sale of Securities in a capital raising transaction.
Page E-106
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2. Independent Contractor. The Consultant agrees to perform its consulting
duties hereto as an independent contractor. Nothing contained herein shall
be considered to create the relationship of employer-employee between the
parties to this Agreement. The Company shall not be liable to third parties
for the acts of the Consultant or its servants or agents, in performing the
consulting duties hereunder, except in the case of damages or injuries
caused directly by the Company's agents or employees, or if the Consultant
shall have been acting on behalf of the Company. The Company shall not make
social security, workers' compensation or unemployment insurance payments
on behalf of the Consultant. The parties hereto acknowledge and agree that
the Consultant cannot guarantee the results or effectiveness of any of the
services rendered or to be rendered by the Consultant hereunder. Rather,
the Consultant shall use its best efforts to conduct its services and
affairs in a professional manner and in accordance with good industry
practice.
3. Time, Place and Manner of Performance. The Consultant shall be available
for advice and counsel to the officers and directors of the Company at such
reasonable and convenient times and places as may be mutually agreed upon.
Except as aforesaid, the time, place and manner of performance of the
services hereunder, including the amount of time to be allocated by the
Consultant to any specific service, shall be determined in the sole
discretion of the Consultant.
4. Term of Agreement. The term of this Agreement shall be as set forth in
Exhibit B.
5. Compensation. In full consideration of the services to be provided for the
Company by the Consultant, as fully set forth in Exhibit A, upon execution
of this Agreement, the Company agrees to compensate the Consultant in the
manner set forth on Exhibit B.
6. Expenses. The Company shall reimburse the Consultant for all pre-approved
expenses and disbursements incurred by the Consultant on behalf of the
Company in connection with the performance of the consulting services
pursuant to this Agreement. The Consultant shall be solely responsible for
all other expenses and disbursements anticipated to be made in connection
with its performance under this Agreement.
Page E-107
159
7. Termination.
(a) This Agreement shall terminate upon the Company's dissolution,
bankruptcy, insolvency, inability to meet its current financial
obligations or refusal to reimburse the Consultant for expenses
incurred for the account of the Company.
(b) Without excusing the Company's obligations under Section 5 herein
above, which shall continue to be effective, the Consultant shall have
the right and discretion to immediately terminate this Agreement
should the Company violate any law, ordinance, permit or regulation of
any governmental entity, or should the Company in any way misrepresent
or omit to disclose any relevant fact on the financial and legal
condition of the Company that would impair the Consultant's ability to
perform hereunder.
8. Work Product. It is agreed that all information and materials produced for
the Company shall be the property of the Consultant, free and clear of all
claims thereto by the Company, and the Company shall retain no claim of
authorship therein.
9. Confidentiality. The Consultant recognizes and acknowledges that it has and
will have access to certain confidential information of the Company and its
affiliates that are valuable, special and unique assets and property of the
Company and such affiliates. The Consultant will not, during or after the
term of this Agreement, disclose, without the prior written consent or
authorization of the Company, any of such information to any person, except
to authorized representatives of the Consultant or its affiliates, for any
reason or purpose whatsoever. In this regard, the Company agrees that such
authorization or consent to disclose may be conditioned upon the disclosure
being made pursuant to a secrecy agreement, protective order, provision of
statute, rule, regulation or procedure under which the confidentiality of
the information is maintained in the hands of the person to whom the
information is to be disclosed or in compliance with the terms of a
judicial order or administrative process.
10. Conflict of Interest. The Consultant shall be free to perform services for
other persons. The Consultant will notify the Company of its performance of
the Consultant services for any other person which could conflict with its
obligations under the Agreement. Upon receiving such notice, the Company
may terminate this Agreement or consent to the Consultant's outside
consulting activities; failure to terminate this Agreement, within seven
(7) days of receipt of written notice of conflict, shall constitute the
Company's ongoing consent to the Consultant's outside consulting services.
Page X-000
000
00. Disclaimer of Responsibility for Acts of the Company. The obligations of
the Consultant described in this Agreement consist solely of the furnishing
of information and advice to the Company in the form of services. In no
event shall the Consultant be required by this Agreement to represent or
make management decisions for the Company. All final decisions with respect
to acts and omissions of the Company or any affiliates and subsidiaries,
shall be those of the Company or such affiliates and subsidiaries, and the
Consultant shall under no circumstances be liable for any expense incurred
or loss suffered by the Company as a consequence of such acts or omissions.
12. Indemnity by the Company. The Company shall protect, defend, indemnify and
hold the Consultant and its assigns and attorneys, accountants, employees,
officer and directors harmless from and against all losses, liabilities,
damages, judgments, claims, counterclaims, demands, actions, proceedings,
costs and expenses (including reasonable attorneys' fees) of every kind and
character resulting from or relating to or arising out of (a) the
inaccuracy, non-fulfillment or breach of any representation, warranty,
covenant or agreement made by the Company herein; or (b) any legal action,
including any counterclaim, to the extent it is based upon alleged facts
that, if true, would constitute a breach of any representation, warranty,
covenant or agreement made by the Company herein; or (c) negligent actions
or omissions of the Company or any employee or agent of the Company, or any
reckless or willful misconduct, occurring during the term hereof with
respect to any of the decisions made by the Company.
13. Notices. Any notices required or permitted to be given under this Agreement
shall be sufficient if in writing and delivered or sent by registered or
certified mail to the principal office of each party.
14. Waiver of Breach. Any waiver by either party of a breach of any provision
of this Agreement by the other party shall not operate or be construed as a
waiver of any subsequent breach by any party.
15. Assignment. This Agreement and the rights and obligations of the Consultant
hereunder shall not be assignable without the written consent of the
Company.
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16. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Nevada. The negotiation,
execution, delivery, consummation hereof, and the performance of and
consideration for this Agreement shall be deemed to have taken place in Las
Vegas, Nevada, Any suit, dispute, litigation, action, claim, and/or
proceeding in connection herewith, the subject matter hereof or between the
parties hereto, will be brought, prosecuted and resolved solely and
exclusively in the courts of the State of Nevada, Las Vegas. Each party
hereto hereby consents to the personal jurisdiction of the State of Nevada
for all actions, disputes, litigation, claims, suits, and/or proceedings
arising out of this Agreement or the subject matter hereof, whether based
on tort, contract, warranty, misrepresentation, fraud, or otherwise, in any
way related hereto or arising herefrom including, but not limited to, the
termination hereof.
17. Severability. All agreements and covenants contained herein are severable,
and in the event any of them shall be held to be invalid by any competent
court, the Agreement shall be interpreted as if such invalid agreements or
covenants were not contained herein.
18. Entire Agreement. This Agreement constitutes and embodies the entire
understanding and agreement of the parties and supersedes and replaces all
prior understandings, agreements and negotiations between the parties.
19. Waiver and Modification. Any waiver, alteration modification of any of the
provisions of this Agreement shall be valid only if made in writing and
signed by the parties hereto. Each party hereto, from time to time, may
waive any of its rights hereunder without effecting a waiver with respect
to any subsequent occurrences or transactions hereof.
20. Attorneys' Fees and Costs. In the event of any dispute arising out of the
subject matter of this Agreement, the prevailing party shall recover, in
addition to any damages assessed, its attorneys' fees and court costs
incurred in litigating or otherwise settling or resolving such dispute. In
construing this Agreement, none of the parties hereto shall have any term
or provision construed against such party solely by reason of such party
having drafted the same.
Page X-000
000
00. Liquidated Damages. The Company and the Consultant hereby acknowledge and
agree that any default hereunder by the Company will cause damage to the
Consultant in an amount difficult to ascertain. Accordingly, the Company
agrees that, upon a default of this Agreement by the Company, the
Consultant shall retain all compensation provided for under Section 5 as
liquidated damages, as the Consultant's sole legal and equitable remedy.
22. Counterparts and Facsimile Signatures. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed
an original, but all of which taken together shall constitute one and the
same instrument. Execution and delivery of this Agreement by exchange of
facsimile copies bearing the facsimile signature of a party hereto shall
constitute a valid and binding execution and delivery of this Agreement by
such party. Such facsimile copies shall constitute enforceable original
documents.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement as of the day and year first above written.
THE CONSULTANT:
AJAY Enterprises Inc.
By: /s/ Xxxxxx Xxxxxx
------------------
THE COMPANY:
Saratoga Telecom Corp.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx, President / CEO
Page E-111
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EXHIBIT A
The Consultant agrees to provide the following services to the Company:
The Consultant shall provide services to the Company as an independent
management consultant to assist the Company as mutually agreed upon from time to
time. The Consultant shall make itself available to consult with the Company's
board of directors, officers, employees and representatives and agents of the
Company at reasonable times, concerning matters pertaining to the overall
business and financial operations of the Company, as well as the organization of
the administrative staff of the Company, the fiscal policy of the Company and in
general, concerning any problem of importance concerning the business affairs of
the Company.
The Consultant will not perform any activities that could subject the Consultant
or the Company to any allegation of violations of Federal or applicable state
securities law.
THE Consultant:
AJAY Enterprises Inc.
By: /s/ Xxxxxx Xxxxxx
Date: 6/16/99
Saratoga Telecom Corp.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
Xxxxxxx X. Xxxxxxx, President / CEO
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EXHIBIT B
The Company agrees to compensate the Consultant as follows:
Fees
For all services rendered by the Consultant under this Agreement, the Company
shall pay the Consultant Five thousand dollars ($5,000) per month for one year
beginning with the Effective Date of this Agreement. Each payment shall be due
and payable at the beginning of the period.
Stock Options
Consultant shall be entitled to receive options of up to 250,000 shares of the
parent company, Saratoga International Holdings Corp. ("SHCC") exercisable at
$0.10 per share subject to the terms and conditions set forth in SHCC's Stock
Incentive Plan.
Terms
This agreement shall expire and terminate the earlier of the occurrence of any
of the following events:
1. The date upon which Internet Interview Inc. sells or otherwise disposes its
internet resume data base
technology.
2. One year from the date of this Agreement.
In any event, this agreement may be extended by mutual agreement of the parties.
THE Company:
Saratoga Telecom Corp.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx, President / CEO
Date: 6/16/99
THE CONSULTANT:
AJAY Enterprises Inc.
By: /s/ Xxxxxx Xxxxxx
-----------------
EXHIBIT 13(i)
Operating Budget Requirements (to be provided by seller prior to Closing)
Page E-113
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