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EXHIBIT 99.1
ADMINISTRATIVE SERVICES AGREEMENT
ADMINISTRATIVE SERVICES AGREEMENT (the "Agreement"), dated as of July
29, 2001, among AXISTEL COMMUNICATIONS, INC., a corporation organized and
existing under the laws of Delaware ("AxisTel"), NOVO NETWORKS GLOBAL SERVICES,
INC., a corporation organized and existing under the laws of Delaware ("NNGS"),
NOVO NETWORKS INTERNATIONAL SERVICES, INC., a corporation organized and existing
under the laws of Delaware ("NNIS"), and E.VOLVE TECHNOLOGY GROUP, INC., a
corporation organized and existing under the laws of Nevada ("e.Volve"), NOVO
NETWORKS OPERATING CORP., a corporation organized and existing under the laws of
Delaware ("NNOC" and collectively with AxisTel, NNGS, NNIS and e.Volve, the
"Companies") and NOVO NETWORKS, INC., a corporation organized and existing under
the laws of Delaware ("NNI").
WITNESSETH:
WHEREAS, the Companies have requested that NNI provide certain
administrative and other services required by the Companies.
WHEREAS, NNI agrees to provide to the Companies, in accordance with
the terms and conditions of this Agreement, such administrative and other
services required by the Companies as set forth herein.
NOW THEREFORE, in consideration of the mutual promises hereinafter
made, the parties hereto agree as follows:
1. Provision of Administrative Services.
(a) During the Term (as defined in Section 2) NNI shall
provide the Administrative Services (as hereinafter defined) to the Companies.
(b) "Administrative Services" shall mean such reasonable
administrative, accounting and other similar functions as may be requested in
writing by the Companies from time to time; provided, however, that the
Administrative Services shall not include any services which NNI is not
permitted to perform under applicable law or any existing contract.
(c) The Administrative Services provided hereunder by NNI
shall include:
(i) Accounting;
(ii) Billing and collections;
(iii) Human resources;
(iv) Payroll services;
(v) Information systems;
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(vi) Operational and network support;
(vii) Limited non-bankruptcy legal and regulatory
services; and
(viii) Various secretarial and administrative
functions relating to the foregoing.
2. Term and Termination.
(a) The Company agrees to provide the Administrative Services
for the period commencing on the date hereof and ending on November 30, 2001,
unless this Agreement is terminated earlier as provided in clause (b) below
(the "Term").
(b) This Agreement may be terminated by mutual agreement of
the parties hereto or by either NNI or the Companies upon two days' prior
written notice to the other. This Agreement will terminate automatically upon
the completion of the Term, unless extended by mutual written agreement of the
parties hereto.
3. Standards of Performance.
(a) Subject to the provisions of this Agreement, NNI agrees
that in providing the Administrative Services under this Agreement: (i) it
shall conduct itself in accordance with all reasonable commercial and
professional standards which are equal in quality to the standards NNI applies
or would apply with respect to its own business, and shall generally act in
such a way as to preserve and promote goodwill toward the Companies on the part
of the general public, customers, and all those having business relations with
the Companies; (ii) it shall comply with all laws, regulations and orders
applicable to the Administrative Services and to the conduct of the activities
contemplated hereby; and (iii) it shall, with respect to the Administrative
Services, carry on its affairs in the ordinary course of business and not make
or institute any unusual method of doing business, accounting or operation or
enter into any transaction which has a material adverse effect on the
Administrative Services provided herein except with the approval of the
Companies, which approval shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, the failure of NNI to provide such
Administrative Services in accordance with the standards set forth above, to
the extent due to the failure of the Companies to provide information or
guidance to NNI as required under this Agreement, shall not be deemed to be a
breach of this Agreement.
(b) Subject to the provisions of this Agreement, the
Companies agree that in receiving services under this Agreement: (i) the
Companies shall conduct themselves in accordance with all reasonable commercial
and professional standards which are equal in quality to the standards the
Companies apply with respect to their respective businesses, and shall
generally act in such a way as to preserve and promote goodwill toward NNI on
the part of the general public, customers, and all those having business
relations with NNI; (ii) they shall comply with all laws, regulations, and
orders applicable to the Administrative Services, and to the conduct of the
activities contemplated hereby; and (iii) they shall with respect to the
Administrative Services carry on their affairs in the ordinary course of
business and not make or
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institute an unusual method of doing business, accounting or operation which
shall unreasonably burden NNI in the provision of Administrative Services under
this Agreement.
4. Books and Records. To the extent permitted by applicable law
or regulation, during the Term, the Companies and their authorized
representatives may from time to time reasonably request, and NNI shall
provide, full and open access to examine all books and records, reports, files,
data processing tapes and data bases, legal files, accounting records and other
information under the control of NNI pertaining to the Administrative Services
to be provided under this Agreement and to discuss any matters relating to the
Administrative Services to be provided under this Agreement with the employees
and agents of NNI who are familiar therewith. Such access and opportunity shall
be exercised by the Companies and such authorized representatives during normal
business hours in a manner that shall not unreasonably interfere with the
operations of NNI.
5. Fees. As consideration for its performance of the
Administrative Services contemplated by this Agreement, the Companies shall pay
to NNI a weekly fee of $30,000 during the Term (the "Fee"). Such Fee shall be
payable in arrears and funded as a budgeted expense.
6. Confidentiality. In the course of providing the
Administrative Services under this Agreement, NNI and its employees may receive
or have access to information or materials that are confidential or proprietary
to the Companies. The Company and its employees shall use such information and
materials only in connection with the performance of the Administrative
Services hereunder and will take reasonable actions to ensure such confidential
and proprietary information and materials is not made available to the public.
Any actions by NNI shall be deemed reasonable if such action is consistent with
steps taken by NNI to preserve the confidentiality of its own confidential and
proprietary information and materials. NNI's and its employees' obligations
hereunder shall not apply to any such information or material that (i) was
already known to such person prior to disclosure in connection herewith; (ii)
is or becomes public knowledge without the fault of such person; (iii) is
lawfully acquired by such person, its agents, counsel or other advisors from a
source not under any obligation to NNI regarding disclosure of such
information; (iv) is disclosed by such person under operation of law or with
the prior written consent of the Companies; or (v) is required to be disclosed
in connection with any public reporting requirements (e.g., SEC filings) of NNI.
7. Indemnity. Each Company agrees to indemnify and hold NNI, its
affiliates and their respective officers, directors, employees and agents and
their respective successors and assigns (collectively the "Indemnitees")
harmless from and against, and in respect of, any and all damages, claims,
losses, liabilities and expenses, including all reasonable fees and expenses of
counsel, asserted against or incurred by Indemnitee which arise out of or
relate to this Agreement, other than due to the gross negligence or willful
misconduct of such Indemnitee.
8. Cooperation. The parties hereto shall cooperate in a
commercially reasonable manner in order that the duties performed by NNI will
be effectively, efficiently and promptly discharged, and will not take any
actions which would frustrate the intent of this Agreement. Each party hereto
shall, at all reasonable times under the circumstances, make available to each
other party properly authorized personnel for the purpose of consultation and
decision.
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9. Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to the Companies, to
them at: Novo Networks Operating Corp. Attention: Xxxxx Xxxxxxxx, 0000 Xxxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Facsimile: (000) 000-0000, with a copy
to Xxxxxxx X. Xxxxxxx, Esq., The Bayard Firm, 000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000, Telephone: (000) 000-0000, Facsimile: (000) 000-0000
and Xxxxxxx Xxxxxxxx, ESBA Capital Group, Inc. 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxxx, Xxxxxxxx 00000, Facsimile: (000) 000-0000; and if to NNI, to
Novo Networks, Inc. at: 000 Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxx, Facsimile: (000) 000-0000, with a copy to White &
Case LLP, 000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000-0000,
Attention: Xxxx X. Xxxxxxxxxx, Esq., Telephone: (000) 000-0000, Facsimile: (305)
358-5744; in each such case at such other address as any party shall designate
in a written notice to the other parties hereto. All such notices and
communications shall, when mailed, telegraphed, telexed, telecopied, or cabled
or sent by overnight courier, be effective when deposited in the mails,
delivered to the telegraph company, cable company or overnight courier, as the
case may be, or sent by telex or telecopier, except that notices and
communications to NNI shall not be effective until received by NNI, as the case
may be.
10. Governing Law; Jurisdiction. This Agreement shall be governed
in all respects, including as to validity, interpretation and effect, by the
internal laws of the State of New York, without giving effect to its principles
or rules of conflict of laws (to the extent that such principles or rules would
require the application of the laws of another jurisdiction to the
interpretation of the parties' rights and obligations hereunder).
11. Successors. This Agreement may not be assigned or transferred
without the written consent of each of the parties hereto. Any purported
assignment in violation of this Section 11 shall be void. Subject to the
foregoing, this Agreement shall be binding on and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
12. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner in order that the transactions contemplated hereby be consummated as
originally contemplated to the greatest extent possible.
13. Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, among
the parties hereto with respect to the subject matter hereof and except as
otherwise expressly provided herein.
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14. No Third-Party Beneficiaries. This Agreement is for the sole
benefit of the parties hereto and their respective successors and permitted
transferees and assigns, and the Indemnitees and nothing herein, express or
implied, is intended or shall confer upon any other person or entity any legal
or equitable right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
15. Relationship of Parties. Except as specifically provided herein,
none of the parties hereto shall act or represent or hold itself out as having
authority to act as an agent or partner of the other parties, or in any way
bind or commit the other parties to any obligations. Nothing contained herein
shall be construed as creating a partnership, joint venture, agency, trust or
other association of any kind, each party being individually responsible only
for its obligations as set forth in this Agreement.
16. Subcontracting. NNI may not subcontract for the performance of any
Administrative Services, unless, and then only to the extent that, the NNI uses
such subcontractor for the provision of substantially the same type of services
for its own benefit and such subcontractor agrees to comply with the terms of
this Agreement and is supervised by NNI.
17. Amendment and Waiver. No amendment, modification or alteration of
the terms or provisions of this Agreement shall be binding unless the same
shall be in writing and duly executed by the parties hereto, except that any of
the terms or provisions of this Agreement may be waived in writing at any time
by the party which is entitled to the benefits of such waived terms or
provisions. No waiver of any of the provisions of this Agreement shall be
deemed to or shall constitute a waiver of any other provision of this
Agreement, whether or not similar. No waiver by any party of any breach or
violation of this Agreement shall be deemed or construed as a waiver of any
subsequent breach or violation thereof, whether or not similar. No delay on the
part of any party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof.
18. Interpretation. The descriptive headings of the provisions of this
Agreement are formulated and used for convenience only and shall not be deemed
to affect the meaning or construction of any such provisions.
19. Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date first written above by their respective officers
thereunto duly authorized.
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AXISTEL COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
NOVO NETWORKS OPERATING CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
NOVO NETWORKS GLOBAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
NOVO NETWORKS INTERNATIONAL SERVICES,
INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
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E.VOLVE TECHNOLOGY GROUP,
INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
NOVO NETWORKS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: President
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