ASSET SALE AND PURCHASE AGREEMENT
THIS AGREEMENT, dated this 29th day of September, 2004, is between and
among SIPSTORM, Inc. (the "Purchaser"), a Florida corporation, the address of
which is2340 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000, Z-TEL TECHNOLOGIES, INC.
("Z-Tel"), a Delaware corporation, the principal office of which is located at
000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 and Z-Tel
COMMUNICATIONS, INC. (the "Seller"), a Delaware corporation, the principal
office of which is located at 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxx, Xxxxxxx 00000.
BACKGROUND STATEMENT
Seller is a telecommunications company and the wholly owned subsidiary
corporation of Z-Tel. In support of its business, the Seller has developed
software, systems and other intellectual property dealing with enhanced services
and operational support. The Purchaser is controlled by the former chief
executive officer and the former chief technology officer of Z-Tel (and the
Seller). They are intimately familiar with the Seller's enhanced services
platform and operational and support systems. The principal purposes of this
Agreement are to effect the following transactions: Seller will sell to the
Purchaser a selected portion of the intellectual property underlying its
enhanced services platform; the Purchaser will grant to the Seller a perpetual
royalty free license to use the foregoing selected intellectual property; the
Seller will grant to the Purchaser a license to use the remainder of the
intellectual property underlying its enhanced services platform; the Seller will
grant to the Purchaser a license to use the intellectual property underlying its
operational systems and support systems and the Seller will sell certain
equipment and transfer software license rights from certain vendors to the
Purchaser.
TERMS OF AGREEMENT
NOW THEREFORE, in reliance upon the foregoing background statement, the
parties agree to the following terms and conditions:
SECTION I DEFINITIONS
The following terms, when capitalized, will have the meanings set forth
in this Section I unless from the context a different meaning indicated.
CONFIDENTIAL INFORMATION - The term "Confidential Information" means any
information, whether disclosed in written or other tangible form (including on
magnetic media) or by oral, visual or other means, that is transmitted or
otherwise provided by or on behalf of either party (the "Discloser") to the
other party (the "Recipient"), or as to which a Recipient otherwise gains
access, in the course of or incidental to the performance of this Agreement, and
that should reasonably have been understood by the Recipient because of legends
or other markings, the circumstances of disclosure or the nature of the
information itself, to be proprietary and confidential to the Discloser, to an
Affiliate of the Discloser or to a third party.
DOCUMENTATION - The term "Documentation" means all or any portion of any
materials in written or other tangible form (including on magnetic media)
including without limitation the following: User Documentation, Source Code,
system summaries, system design, flow charts, functional or technical
specifications, logical models, architectures, plans, instructional training
course materials, other supporting or programming materials, and any
deliverables as identified in, or otherwise delivered pursuant to this
Agreement..
Effective Date - The term "Effective Date" means the date first written above.
ENHANCED SERVICES - The term "Enhanced Services" means enhancements and adjuncts
to basic telephone service. Add on features, functionality and capabilities such
as voicemail, "find me" and voice recognition are examples of Enhanced Services.
ENHANCED SERVICES PLATFORM OR ESP - The term "ESP" means the facilities through
which enhanced and adjunct services are provided to end users. The term excludes
facilities that are leased from any ILEC, Internet service provider,
interexchange carrier, wireless provider or any other Telecommunications Service
provider or Information Service provider.
ESP1 Services - The term "ESP1 Services" means those Enhanced Services deployed
by the Seller in production environments supporting active retail and wholesale
accounts as of August 1, 2004. ESP1 services include standard PVA, Voice Mail,
Family Mail Box, Find Me, On-Line Account Maintenance, Notify Me, Telemail and
Web Access.
ESP2 Services - The term "ESP2 Services" refers to those services under
development and not utilized to provide services to paying customers as of
August 1, 2004. ESP2 services utilize ESP2 Software.
ESP2 Software - The term "ESP2 Software" refers to software under development
and not yet utilized to provide services to paying customers as of August 1,
2004. ESP2 software includes but is not limited to capabilities described as
"Callpoint", "Trinsic Center" and "Provisioning Xxxxxxx". XXX0 Software is
accessible to the end customer via by both phone and web.
HARDWARE - The term "Hardware" means physical pieces of equipment utilized in
the by either party to provide services.
HOSTED SERVICES - The term "Hosted Services" means ESP2 Services that Purchaser
provides to other carriers for resale on a turn-key basis.
INFORMATION SERVICE - The term "Information Service" shall have the meaning set
forth in Section 3(20) of the Communications Act.
INTELLECTUAL PROPERTY RIGHTS - The term "Intellectual Property Rights" means all
rights in inventions, patents (including xxxxx patents), utility models, Marks,
rights in designs, copyrights of any kind, rights in know-how, moral rights,
rights in confidential information, industrial secrets and trade secrets, rights
in databases, compilation rights and topography rights and all rights or forms
of protection of a similar nature or having equivalent or similar effect to
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any of these which may subsist anywhere in the world (whether or not any of
these is issued or pending, registered or unregistered, and including, without
limitation, application for registration of any such thing and rights to apply
therefore).
MARKS - The term "Marks" means any and all trademarks, service marks, trade
names, logos, insignias, copyrights or other similar intellectual property
belonging or licensed to a party.
OBJECT CODE - The term "Object Code" means the instructions for a computer
assembled or compiled in electronic binary form on software media that are
readable and usable by machines but not generally by humans without reverse
assembly, reverse compiling, or reverse engineering.
OPERATIONAL SUPPORT SYSTEMS or OSS - The term Operational Support Systems or OSS
means functionalities and capabilities that support the delivery of
communications and enhanced services, such as ordering, provisioning, billing
and collection, fulfillment, sales, preparing and handling call data records and
customer care.
OSS PLATFORM -- The term "OSS Platform" means, collectively, all of the
Software, hardware, systems, services, Documentation and other facilities,
information and materials used by or on behalf of Seller as of the date of this
Agreement to provide the OSS Services, whether licensed, leased, rented or
otherwise provided to, owned by, or otherwise under the control of Seller.
OSS SERVICES - The term "OSS Services" means and includes ordering,
provisioning, billing and collection, fulfillment, sales, customer data records,
and customer care. For the avoidance of doubt, "OSS Services" do not include any
Telecommunications Service or any Information Service.
PROFESSIONAL SERVICES - The term "Professional Services" means implementation,
configuration, software development and modification, and other similar tasks,
performances, and services along with any resulting work product.
REVENUE - The term "Revenue" means proceeds billed by Purchaser attributable to
ESP2 Services under Generally Accepted Accounting Principles. Revenue will not
include taxes and pass through billing of items such as taxes and surcharges
imposed by governmental or regulatory bodies including (but not limited to)
sales taxes, use taxes, gross receipts taxes, franchise taxes and fees, 911
fees, local number portability fees. For sake of clarity, in regard to wholesale
services which are provided by Purchaser on a cost plus basis (i.e., cost plus a
management fee), only the management fee will included in the determination of
Revenue. Invoices directed to Seller in regard to Hosted Services and
Professional Services will be excluded in the determination of Purchaser's
Revenue.
SOFTWARE - The term "Software" means the instructions for a computer, in Source
Code and Object Code forms, together with all related User Documentation, as
well as all corrections, improvements, updates, versions, releases and other
modifications to any of the foregoing, in whatever form or media, including the
tangible media upon which the foregoing are recorded or printed.
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SOFTWARE ENHANCEMENTS - The term "Software Enhancements" means any corrections,
improvements, updates, versions, releases and other modifications to Software.
SOURCE CODE - The term "Source Code" means the underlying instructions for a
computer written in programming languages, including all embedded comments, as
well as procedural code such as job control language statements, in a form
readable by human beings when displayed on a monitor or printed on paper, etc.
and that must be translated using software compilers, linkers, assemblers or
other means into a form that is directly executable by a computer by a process
generally known as compiling or assembly, along with any related Documentation,
including without limitation annotations, flow charts, schematics, statements of
principles of operations, software summaries, software design, program logic,
program listings, functional specifications, logical models and architecture
standards, describing the data flows, data structures, and control logic of the
software.
USER DOCUMENTATION - The term "User Documentation" means as to Software any user
guides, manuals, operator guides, installation guides, technical reference
manuals, data dictionaries and other similar materials which explain the
operation and/or use thereof and are created by or on behalf of Seller provided
to Seller by a third party or created by or on behalf of Seller.
WORK PRODUCT - The term "Work Product" means Software code written, created,
conceived, made or discovered by Purchaser specifically for Seller in the course
of performing any Professional Services pursuant to this Agreement.
Z-TEL INTELLIGENT NETWORK CONTROLLER or ZINC SERVICES - The term "ZINC Services"
refers to providing SIP based call control based on the use of the ZINC
Software. ZINC Services are part of ESP2 Services.
Z-TEL INTELLIGENT NETWORK CONTROLLER OR ZINC SOFTWARE - The term "ZINC Software"
refers to a SIP based call controller built on top of the Ubiquity SIP
Application Server (SAS). The source code was written by both Ubiquity
professional services personnel under contract to Z-Tel and Z-Tel personnel.
ZINC has four main functions: 1) Call Router routing between peering
relationships (Class 4 like functionality), registered devices (Class 5 like
functionality) and enhanced services, 2) Managing Registered Endpoints, 3)
AIN/SCP like features and 4) centralized CDR. ZINC interoperates with ESP2
Software and softswitches.
TERMS OF AGREEMENT
NOW THEREFORE, in reliance upon the foregoing background statement, the
parties agree to the following terms and conditions:
SECTION I: SALE OF ASSETS BY SELLER
1.1. Assets to be Sold to Purchasers. Subject to the terms and
conditions of this Agreement, at the closing referred to in SECTION 7 (the
"Closing") and effective for all purposes as
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of September 29, 2004, the Seller will, and the Seller does hereby, sell,
assign, transfer and convey to the Purchaser the assets itemized below (the
"Assets"):
(A) all right, title and interest in, to and under the
Hardware itemized on Schedule 1, along with all related Documentation;
(B) all of Seller's right, title and interest in, to and
under the third party Software license arrangements and related maintenance and
support arrangements itemized in Schedule 2, along with all related
Documentation; provided, however, that Seller shall not make any transfer under
this Agreement that would, to Seller's knowledge, conflict with or infringe upon
any right, title or interest of any of the third party vendors of the Software
identified on Schedule 2;
(C) All warranties and goodwill associated with the
Hardware and Software referred to on Schedule 1 and Schedule 2, respectively,
along with all related Documentation; and
(D) all right, title and interest in, to and under all
Intellectual Property Rights underlying ESP2 Services, as further described on
Schedule 3, including Software Source Code, Object Code Documentation and
specifications, but excluding any Intellectual Property Rights underlying ESP1
Services; provided, however, that Seller shall not make any transfer under this
Agreement that would, to Seller's knowledge, conflict with or infringe upon any
right, title or interest of any of the third party vendors of the Software
identified on Schedule 2.
1.1.1 Delivery. Seller shall, within fifteen (15) business
days after the Effective Date, deliver the Assets to Purchaser at facilities
reasonably designated by the Purchaser, in such media and by such means as are
reasonably agreed upon by Seller and Purchaser. After the Effective Date, but
prior to completion of this delivery, Seller will provide reasonable access to
the Assets to allow Purchaser to pursue its development and demonstration
activities. Purchaser and Seller may mutually agree to delivery by Seller of any
subsequent additional material or media, at such facilities, in such media and
by such means, all as are agreed to by the parties.
1.1.2 Ownership of Modifications. Purchaser shall own all
right, title and interest in and to all changes, improvements, enhancements,
derivative works or other modifications to the Assets, along with the
Intellectual Property Rights in any of the foregoing, made without participation
of Seller. If Seller does participate in making such changes, improvements,
enhancements, derivative works or other modifications, the parties will
negotiate in good faith prior to the commencement of any such work setting
forth, among other things, the parties' respective ownership, licenses, or other
rights with respect to any such resulting modifications. In the absence of such
negotiation and agreement otherwise, the same shall belong to Purchaser.
SECTION 2: LICENSES; RIGHT TO USE
2.1 OSS and ESP1 Use License Grant. Seller hereby grants to
Purchaser, from and after the Effective Date, a fully paid up, worldwide,
multi-site, non-transferable, irrevocable, noncancellable, non-terminable and
perpetual, right and license to perform, execute, copy (solely
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as incidental to the exercise of such other rights as are granted in this
Section 2.1), access, and process information and data and otherwise utilize
Seller's OSS Platform Software as it exists as of the Effective Date. Seller
hereby grants to Purchaser, from and after the Effective Date, a fully paid up,
worldwide, multi-site, non-transferable, irrevocable, noncancellable,
non-terminable and perpetual, right and license to perform, execute, copy
(solely as incidental to the exercise of such other rights as are granted in
this Section 2.1), access, and process information and data and otherwise
utilize Seller's ESP1 Service Software as it exists as of the Effective Date.
Use of these licenses (the foregoing together being the "OSS and ESP1 Use
License") by Purchaser is conditioned on utilization of the existing Software as
reasonably necessary or useful for the purpose of marketing, sale and use of
ESP1 Services, ESP2 Services and related services. Rights granted in association
with the OSS and ESP1 Use License grant does not include any right to take
action intended to alienate the rights of the Seller or to take any action
intended to put such material in the public domain. At the time of delivery of
the Assets, Seller shall deliver to Purchaser, if requested, a copy of all
Documentation (including Source Code) relating to the Intellectual Property
Rights underlying the OSS and ESP1 Use License.
2.1.1 No Assignment. Except as otherwise provided herein or
with Seller's prior consent in writing, which consent may be provided at
Seller's sole discretion, Purchaser will not to lease, sell, assign, further
sublicense or otherwise transfer the OSS and ESP1 Use License granted to
Purchaser hereunder. For sake of clarity, while nothing shall restrict
Purchaser's ability to wholesale OSS and ESP1 Services in association with
services provided by Purchaser, the OSS and ESP1 Use License does not grant
purchaser the right to sell or provide the OSS Platform Software and ESP1
Service Software to any third party (except that Purchaser may provide access to
or a copy of appropriate portions of such Software incidental to the above
described provision of services). However, in the event of an uncured material
breach of this Agreement on the part of the Seller or the bankruptcy,
liquidation or forced corporate restructure of Seller, all limitations on
Purchaser's utilization and ability to sell relative to the Source Code and
Software shall be immediately waived.
2.1.2 Seller Enhancements. Grant of the foregoing OSS and
ESP1 Use License in no way obligates Seller to provide access to future Software
Enhancements associated with Seller's OSS and ESP1 Services. Seller is under no
obligation to provide support or Professional Services to Purchaser in any
manner (e.g. operational or developmental) in association with the OSS and ESP1
Use License.
2.1.3 Derivative Works. The OSS and ESP1 Use License
includes the rights to make derivative works of OSS Platform Software and ESP1
Service Software. Utilization of such derivative works shall be governed as set
forth in Section 2.1. Purchaser will be under no obligation to provide Seller
with copies or access to derivative works developed in accordance with the
provisions of this Section. Purchaser shall own all right, title and or interest
in and to all changes, improvements, enhancements, derivative works or other
modifications, along with the Intellectual Property Rights in any such
derivative works made without participation of Seller.
2.2 ESP2 Use License Grant. Purchaser hereby grants to Seller,
from and after the Effective Date, a fully paid up, worldwide, multi-site,
non-transferable, irrevocable, noncancellable, non-terminable and perpetual,
right and license to perform, execute, copy (solely
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as incidental to the exercise of such other rights as are granted in this
Section 2.2), access, and process information and data and otherwise utilize
ESP2 Software as it exists as of the Effective Date. Use of this license (the
"ESP2 Use License") by Seller is conditioned on utilization of the existing
Software as reasonably necessary or useful for the purpose of marketing, sale
and use of ESP2 Services, ESP2 Services and related services to and by end-user
customers. Rights granted in association with the ESP2 Use License do not
include any right to take action intended to alienate the rights of the Seller
or to take any action intended to put such material in the public domain. At the
time of delivery of the Assets, Seller shall deliver to Purchaser a copy of all
Documentation (including Source Code) relating to the Intellectual Property
Rights underlying the OSS and ESP1 Use License. At the time of delivery of the
Assets, Purchaser shall deliver to Seller, if requested, a copy of all
Documentation relating to the Intellectual Property Rights underlying the OSS
and ESP1 Use License.
2.2.1 No Assignment. Except as otherwise provided herein or
with Purchaser's prior consent in writing, which consent may be provided at
Purchaser's sole discretion, Purchaser will not to lease, sell, assign, further
sublicense or otherwise transfer the ESP2 Use License granted to Purchaser
hereunder. For sake of clarity, while nothing shall restrict Seller's ability to
wholesale ESP2 Services in association services provided by Seller to end users,
the ESP2 Use License does not grant purchaser the right to sell or provide the
ESP2 Software to any third party other than incidental to the above described
provision of services. However, in the event of an uncured material breach of
this Agreement on the part of the Purchaser or the bankruptcy, liquidation or
forced corporate restructure of Purchaser, all limitations on Seller's
utilization and ability to sell relative to the Source Code and Software shall
be immediately waived.
2.2.2 Seller Enhancements. Grant of the foregoing ESP2 Use
License in no way obligates Purchaser to provide access to future Software
Enhancements associated with Seller's ESP2 Services except as may be
specifically provided under this Agreement.
2.2.3 Derivative Works. The ESP2 Use License includes the
rights to make derivative works of ESP2 Software. Utilization of such derivative
works shall be governed as set forth in Section 2.2. Seller will be under no
obligation to provide Purchaser with copies or access to derivative works
developed in accordance with the provisions of this Section. Seller shall own
all right, title and or interest in and to all changes, improvements,
enhancements, derivative works or other modifications, along with the
Intellectual Property Rights in any such derivative works made without
participation of Purchaser. In the absence of such negotiation and agreement
otherwise, the same shall belong to Seller.
2.2.4 Future Updates. On two occasions after the initial
delivery described in Section 1.2.1 but prior to January 1, 2006, upon Seller's
thirty (30) calendar days written request, Purchaser will provide Seller with
the then existing Source Code and then exiting Documentation for ESP2 Software.
2.3 No Other Rights, Licenses, etc. Except to the extent otherwise
expressly set forth in this Agreement or otherwise mutually agreed by the
parties in writing, nothing contained in this Agreement shall or will be
construed or deemed to grant to either party any right, title, license,
sub-license, proprietary right or other claim against or other interest in, to
or under (whether by
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estoppel, by implication or otherwise) the Intellectual Property Rights and
tangible embodiments thereof or other facilities or materials owned by or
licensed or otherwise provided to the other party prior to the Effective Date of
this Agreement or independently developed by or on behalf of the other party or
licensed or otherwise provided to the other party by a third party.
SECTION 3: COLLOCATION AND COLLOCATION SUPPORT
The parties shall negotiate in good faith with a view toward entering
into a collocation agreement, certain of the principal terms of which would be
as described on Exhibit A. However, any party, for any reason in its sole
discretion, may decline to enter into a collocation agreement, and any failure
of the parties to enter into such an agreement, regardless of reason, shall not
affect any other right, liability or obligation of any party under this
Agreement.
SECTION 4: HOSTED SERVICES
The parties shall negotiate in good faith with a view toward entering
into a hosted services agreement, certain of the principal terms of which would
be as described on Exhibit B. Additionally, Seller will have the right to "opt
in" to any hosted services agreement entered into by Purchaser on or before
December 31, 2005, with such agreement being modified only to the extent
required to reflect the principal terms described in Exhibit B. However, any
failure of the parties to enter into such an agreement, regardless of reason,
shall not affect any other right, liability or obligation of any party under
this Agreement.
SECTION 5: CONSULTING AND PROFESSIONAL SERVICES;
5.1 Maintenance and Support. At any time until _______, 20___,
upon a minimum of fourteen (14) days written request, each party shall provide
to the other party such maintenance and support services as are reasonably
necessary or useful to enable the requesting party to exercise its rights
pursuant to this Agreement. Such maintenance and support services shall be
provided pursuant to the following terms and conditions:
(a) The hourly rate charge for such maintenance and
support services provided by an employee of a party
shall be the annual salary of such individual
multiplied by a factor of .00075;
(b) A party may request the services of a particular
employee of another party, provided, that no more
than fifteen percent (15%) of any individual's time
will be requested during any thirty (30) day period
unless an individual was, in the immediately
preceding ninety (90) days, a full time employee of
the other party whereupon the maximum amount of that
individual's time allowed to be requested shall not
exceed fifty percent (50%) of the individual party's
time during any thirty (30) day period; and,
(c) In the aggregate, maintenance and support requests
from either party shall not cumulatively ask for more
than two full time equivalent personnel for any
calendar month, and a party shall not be required to
provide services if
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the provision of such services would unreasonably
interfere with such party's business operations.
5.2 Professional Services. From time to time, Seller may request
that Purchaser agree to provide specific Professional Services in connection
with any of the other ESP2 Services and ESP2 Source Code provided hereunder.
Upon Seller's written request, the parties shall negotiate in good faith with a
view toward entering into an agreement for the provision of such services.
Except in regard to the specific provisions of Section 5.2.1 and 5.2.1, any
party, for any reason in its sole discretion, may decline to enter into such an
agreement, and any failure of the parties to enter into such an agreement,
regardless of reason, shall not affect any other right, liability or obligation
of any party under this Agreement.
5.2.1 Commissioned Services. As a part of the consideration
exchanged between the parties relative to the transfer of assets and provision
of licenses, Purchaser agrees to provide at no charge to the Seller the
following Professional Services in accordance with the stated intervals:
(a) Integrate ESP2 Service standard applications
with Purchaser's BTS network architecture no
later than December 1, 2004;
(b) Create and customize a Trinsic Center
branded site following Purchaser's standard
site guidelines no later than January 1,
2005; and
(c) Modify ESP2 Services to be compatible with
Seller's UNE-P based end user lines no later
than February 1, 2005;
5.2.2 Prearranged Professional Services. As a part of the
consideration exchanged between the parties relative to the transfer of assets
and provision of licenses, upon reasonable written request and development of a
negotiated Statement of Work, Purchaser agrees to provide at actual cost
(meaning salary, benefits, direct reimbursements and direct third party costs)
plus twenty percent (20%) to the Seller up to three thousand two hundred (3,200)
hours of Professional Services provided that in no single month may the number
of prearranged hours exceed three hundred and twenty (320) hours without the
express consent of the Purchaser. Upon Seller's written request, the parties
shall negotiate in good faith with a view toward entering into an agreement for
the provision of such services. Such services shall be provided in accordance
with terms customary in the industry.
5.2.3 Best Efforts. The parties will utilize their
commercially reasonable best efforts to successfully develop, deploy and
integrate services in accordance with delivery schedules and specifications
delineated in this Agreement or any applicable Statement of Work, agreement or
other arrangement. Seller will cooperate in ensuring that Seller's interfaces
and OSS Platforms are properly provisioned to accommodate delivery of Work
Product by Purchaser.
5.3 Professional Services Supplied by Seller. From time to time,
Seller, at its sole discretion, may provide to Purchaser any Professional
Services as are reasonably requested by Purchaser to enable Purchaser to
exercise its rights as to the same pursuant to the OSS and ESP1
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Use License. Upon Purchaser's written request, the parties will negotiate in
good faith prior to the commencement of any such services with a view toward
entering into an agreement for the provision of such services.. Where Seller
agrees to provide such Professional Services, they will be provided on a cost
(meaning salary, benefits, direct reimbursements and direct third party costs)
plus twenty (20%) basis.
5.4 License to Pre-existing Intellectual Property. The parties
acknowledge and agree that Work Product may incorporate pre-existing
intellectual property. Except as otherwise provided in the applicable
arrangement for the provision of such Work Product, the party providing
Professional Services hereby grants to the party purchasing Professional
Services a non-exclusive, worldwide, irrevocable, noncancellable, non-terminable
and perpetual license to use any of such pre-existing intellectual property (to
the extent incorporated in the Work Product described in this Section 5) solely
as necessary or appropriate to the party's enjoyment of its rights of ownership
of or license to, as the case may be, the Work Product, including but not
limited to the rights to display, perform, copy (solely for Seller's internal
use), execute, and distribute such pre-existing intellectual property, provided
that except as otherwise provided in the applicable arrangement, the party
owning the pre-existing intellectual property shall retain all ownership rights
and title to the resulting Work Product.
5.5 Workmanlike Manner. The maintenance and support and
Professional Services provided hereunder shall be performed in a professional
and workmanlike manner and in conformity with the professional standards for
comparable services in the industry, and shall comply with the applicable
specifications or other requirements set forth in this Agreement, including
without limitation any applicable Statement of Work, agreement or other
arrangement. In the event of a breach of the warranty set forth in this Section
5.4, the party providing the service shall immediately take all reasonable
measures to correct any error in the deliverable and redeliver the same at no
additional cost. No party shall have any liability or obligation with respect to
the provision of Professional Services other than as expressly set forth in this
paragraph or in any applicable Statement of Work, agreement or other
arrangement.
5.6 Limitation. Notwithstanding the above, nothing in regard to
this Section 5 shall be interpreted to require the Seller to perform
architectural design, engineering, customer service or application support for
Purchaser, other than networking, security and related services.
SECTION 6: FINANCIAL CONSIDERATION
6.1 Assets Sold As Is. Except as otherwise indicated, all assets
and property sold or assigned under this Agreement are sold and assigned "AS
IS." Neither party makes any warranty or representation as to the quality or
fitness of any of such assets or property.
6.2 Assumption of Accounts Payable. Schedule 5 sets forth certain
outstanding balances owed to vendors of third party Software and Hardware
included in the Assets. The parties acknowledge that Purchaser, Seller and such
vendors have agreed that Purchaser shall be financially responsible for certain
of such balances, to be paid in amounts and at times agreed upon between
Purchaser and such vendors (the "Purchaser Payment Obligations"). Purchaser
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shall fully satisfy the Purchaser Payment Obligations at the times and in the
manner agreed upon by Purchaser and such vendors.
6.3 Assumption of Software and Hardware Maintenance Support. As of
the Closing, Purchaser shall have all responsibility for all current and future
subscriptions for maintenance support services for the Hardware and Software
itemized on Schedule 1 and Schedule 2 as related to Purchaser's ESP2 and ZINC
services, to the extent agreed upon by Purchaser and such vendors. Purchaser
will not be responsible for future subscriptions for maintenance support
services with these vendors on the part of Seller where at some future point
Seller enters into separate agreements with these vendors to provide Hardware
and/or Software and services outside the auspices of this Agreement.
6.4 Assumption of Xxxxx 0 XXX. The parties shall cooperate in
working toward the assignment by Seller to Purchaser of Seller's rights, and the
assumption by Purchaser of certain of Seller's obligations, under the Master
Service Agreement between Level 3 Communications, LLC and Seller dated July 2,
2004 and as amended August 6, 2004.
6.5 Promissory Note. At the Closing, Purchaser will provide to
Seller its Promissory Note with a principal amount of three million dollars
($3,000,000) signed by at least two (2) authorized Officers of the Purchasers.
After January 1, 2005, said Promissory Note will accrue interest at the rate of
twelve percent (12%) per year compounded monthly until the date the note is paid
off. Purchaser shall pay to Seller all principal and interest due no later than
thirty six (36) months from the Effective Date of this Agreement. Said
Promissory Note will be secured by the Series D and Series G Preferred Stock
holdings (in their entirety) of D. Xxxxxxx Xxxxx and Xxxxxxx X. XxXxxxxxx. At
the time of Closing, said Series D and Series G Preferred Stock will be
presented for Seller to hold as security until such time as the Promissory Note
is paid in full. If directed by D. Xxxxxxx Xxxxx and/or Xxxxxxx X. XxXxxxxxx,
Seller will submit Series D and Series G Preferred Stock shares for tender or
conversion to common stock with the resultant shares of common stock in their
entirety directed to Seller to hold in trust in lieu of the Preferred Stock
shares. However, upon written request of D. Xxxxxxx Xxxxx and/or Xxxxxxx X.
XxXxxxxxx, Seller will release applicable Series D and Series G Preferred Stock
shares or converted common stock shares to an authorized Broker for sale where
such Broker provides written confirmation that the Broker will direct seventy
five percent (75%) of the proceeds from any sale of shares to pay down the
Promissory Note's principal and interest. Full or partial payment relative to
the Promissory Note's principal and interest may be paid by Purchaser at any
time without penalty.
6.6 Royalty Payments. In any month in which Purchaser's Revenue
exceeds five hundred thousand dollars ($500,000), Purchaser will remit two and
one half percent (2.5%) of Revenue as a royalty payment related to Seller's
participation in the development of the underlying ESP2 Service technology. In
the event that Purchaser signs a letter of intent or a definitive agreement to
provide ESP2 Services to Sprint Communications Company L.P. or an Affiliate of
Sprint Communications Company L.P. (together "Sprint") prior to March 1, 2005,
for that portion of Revenue attributable to Sprint, Purchaser will pay to Seller
an additional bonus royalty of two and one half percent (2.5%) of Revenue.
Purchaser shall not unreasonably delay signing a Letter of Intent or agreement
with Sprint as a mechanism to avoid payment of the additional royalty.
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6.6.1 Quarterly Cap. Except as it relates to royalties
associated with Revenue attributable to Sprint, royalty payments from Purchaser
to Seller will be capped at one million dollars ($1,000,000) per calendar
quarter. Notwithstanding the preceding sentence, royalty payments to Seller in
association with ESP2 Services provided by Purchaser to Sprint shall not be
capped.
6.6.2 Five Year Life. Purchaser's responsibility to pay
royalty payments in association with this Section 6.6 will expire five (5) years
from the Effective Date.
6.6.3 Payments. Royalty payments will be paid to Seller
within thirty (30) days following the end of the month in which the Revenue was
booked by the Purchaser. Purchaser will provide Seller with the information and
material reasonably necessary for Seller to validate the accuracy and amount of
royalty payments owed Seller under this Agreement.
6.7 Fees for Hosted Services. Seller shall pay Purchaser a fee for
Hosted Services provided under Section 4 of this Agreement equal to the sum of
(i) direct external costs to Purchaser and (ii) a management fee for each end
user account.
6.7.1 Initial Period. Prior to January 1, 2006, unless
otherwise established pursuant to Section 6.7.3, the monthly management fee
associated with Purchaser providing Hosted Services to the Seller shall be:
(a) seventy five cents ($0.75) per active
account for the first six hundred thousand
accounts, and
(b) ninety cents ($0.90) per active account for
all active accounts over six hundred
thousand accounts.
6.7.2 Subsequent Period. On or after January 1, 2006,
unless otherwise established pursuant to Section 6.7.3, the monthly management
fee associated with Purchaser providing Hosted Serves to the Seller shall be
ninety cents ($0.90) per active account.
6.7.3 Most Favored Nation. In regard to Hosted Services,
Purchaser commits to provide Hosted Services to Seller at a ten percent (10%)
discount to the minimum fee charged any other provider for ESP2 hosted services.
Should Purchaser enter in to any agreement to provide ESP2 Services with any
party where subscribed rates less ten percent (10%) are less than the rates
established in Section 6.7.1 and Section 6.7.2, Purchaser will notify Seller of
the existence of such agreement within seven (7) calendar days. Purchaser will
reduce rates charged to Seller accordingly on the first day that ESP2 Services
are made available to the alternative vendor. Purchaser will provide Seller with
the information and material reasonably necessary for Seller to verify
compliance with this most favored nation clause.
6.7.4 Allocation of Cost. Where direct external costs
cannot be directly assigned, it is the intent of the parties hereto to allocate
direct costs (as between the parties and as between the parties and Purchaser's
other wholesale customers, if any) fairly and proportionately
12
between them. The parties will work together in good faith to ensure that such
allocations are and remain fair and proportionate on the basis of the relative
number of orders, customers, lines, mailboxes and/or other reasonable
methodology.
6.8 Right to Bid. Should Purchaser decide to cease providing ESP2
Services to its end users or to sell to a third party the Assets transferred
under this Agreement, then, to the extent allowed by law, Seller will grant to
Purchaser, until the earlier of fifteen (15) business days after notice to
Seller or the date Seller submits a bid, the right to bid on the purchase, in
whole or in part, of the end user base and those assets, including intellectual
property, that support ESP2 Services. Purchaser may accept or reject any such
bid in its sole discretion, for any reason.
SECTION 7: THE CLOSING
7.1 Closing. The closing of the transactions contemplated by this
Agreement (the Closing") will take place at the offices of Z-Tel Communications,
Inc., 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx, at 10:00
A.M., EDT or another place, time and date agreed to in writing by the parties
(the "Closing Date").
SECTION 8: REPRESENTATIONS AND WARRANTIES OF SELLER
The Seller represents and warrants to the Purchaser that the following
statements are true and correct on this date and will be true and correct as of
the date of the Closing:
8.1. Corporate Status and Power. The Seller is a corporation
organized under the laws of the state of Delaware, its status is active and it
has the corporate power to conduct its business, to execute and deliver this
Agreement and to perform its obligations under this Agreement.
8.2. Authorization. The Seller's execution, delivery and
performance of this Agreement have been duly authorized by all necessary
corporate and shareholder action. The Seller has all the franchises, licenses
and permits for the conduct of its business, the failure of which to have would
materially and adversely affect the Seller's business.
8.3. No Contravention. The execution and delivery of this
Agreement, the performance by the Seller of its obligations under this Agreement
and the exercise by the Seller of the rights created by this Agreement do not
(i) violate the Seller's Articles of Incorporation or bylaws; (ii) constitute a
breach of or a default under any agreement or instrument to which the Seller is
a party or by which it or its assets are bound or result in the creation of a
mortgage, security interest or other encumbrance upon the Seller's assets; (iii)
violate a judgment, decree or order of any court or administrative tribunal
which is binding on the Seller or its assets; or (iv) violate any Federal or
state law, rule or regulation.
8.4. Valid, Binding and Enforceable Agreement. Subject to the
Bankruptcy laws of the United States and general principles of equity, this
Agreement is a valid and binding obligation of the Seller enforceable against
the Seller under the laws of Florida and the Federal laws of the United States.
13
8.5. Title to Assets. Except as otherwise disclosed to the
Purchaser, the Seller has good, valid and marketable title to the Assets. The
Assets are subject to no liens or encumbrances which have not been disclosed in
writing to the Purchaser.
8.6. No Pending Actions. There are no pending actions, suits,
claims or proceedings before any federal, state, county, municipal, or other
governmental court, tribunal, department, commission, board, bureau or other
instrumentality pertaining to the Seller, the Seller's assets or the use of the
Seller's assets, which would have a material, adverse effect upon the
Purchaser's use of the Assets after the Closing.
8.7. Taxes. All tangible property taxes and other taxes required to
be paid by the Seller to any governmental agency in connection with the Seller's
assets have been paid or provided for. All sales and use taxes required to be
collected and paid by the Seller have been paid or provided for. All payroll
taxes whether withheld or payable by the Seller have been paid or provided for.
SECTION 9: REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser represents and warrants to the Seller that the following
statements are true and correct on this date and will be true and correct as of
the date of the Closing:
9.1. Corporate Status and Power. The Purchaser is a corporation
organized under the laws of the state of Florida, its status is active and it
has the corporate power to conduct its business, to execute and deliver this
Agreement and to perform its obligations under this Agreement.
9.2. Authorization. The Purchaser's execution, delivery and
performance of this Agreement have been duly authorized by all necessary
corporate and shareholder action. The Purchaser has all the franchises, licenses
and permits for the conduct of its business, the failure of which to have would
materially and adversely affect the Purchaser's business.
9.3. No Contravention. The execution and delivery of this
Agreement, the performance by the Purchaser of its obligations under this
Agreement and the exercise by the Purchaser of the rights created by this
Agreement do not (i) violate the Purchaser's Articles of Incorporation or
bylaws; (ii) constitute a breach of or a default under any agreement or
instrument to which the Purchaser is a party or by which it or its assets are
bound or result in the creation of a mortgage, security interest or other
encumbrance upon the Purchaser's assets; (iii) violate a judgment, decree or
order of any court or administrative tribunal which is binding on the Purchaser
or its assets; or (iv) violate any Federal or state law, rule or regulation.
9.4. Valid, Binding and Enforceable Agreement. Subject to the
Bankruptcy laws of the United States and general principles of equity, this
Agreement is a valid and binding obligation of the Purchaser enforceable against
the Purchaser under the laws of Florida and the Federal laws of the United
States.
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SECTION 10: COMPETITION
10.1 No Exclusivity. Nothing within this Agreement shall establish
an exclusive arrangement between the parties. Neither party shall be precluded
from purchasing services, Software or Hardware from another vendor. Neither
party shall be precluded from selling services, Software or Hardware to another
party except pursuant to the restrictions established with certain licenses in
Section 2.
10.2 Noninterference. The parties will have the right to serve
directly or indirectly any end user or wholesale provider. The parties may
continue to market, sell and deliver their own Telecommunications Services and
enhanced communications services and may establish independent relationships
with any end user. Neither party will interfere with the right of any
individual, entity or association to obtain service directly from the other
party. Neither party, however, will intentionally directly target the customers
of the other party when marketing communications services. Neither party will
disparage the other party or the other party's services or make comparisons
relative to the other party's services in any marketing, advertising or sales
materials designed for public dissemination.
10.3 Limitation on Hiring. Prior to January 1, 2006, the parties
shall not directly recruit or solicit for employment, any technical or
professional employees employed by the other party in connection with the
performance of this Agreement without the prior written approval of the party
whose employee is being considered for employment. The foregoing sentence shall
not prohibit solicitations of any person who, at the time of solicitation, is no
longer employed by a party.
SECTION 11: CONFIDENTIAL INFORMATION
11.1 Limitations on Use and Disclosure. Each party agrees as to any
Confidential Information received hereunder:
(a) to protect such Confidential Information from
disclosure to others using the same degree of care
used to protect its own confidential or proprietary
information of like importance, but in any case using
no less than a reasonable degree of care, provided
that Recipient may disclose Confidential Information
received to its employees and independent
contractors, and to its affiliates and their
respective employees and independent contractors, who
in each or the foregoing instances have a need to
know for the purpose of this Agreement, and who are
further bound to protect the received Confidential
Information from unauthorized use and disclosure
under the terms of a written agreement (including a
pre-existing written agreement). Seller shall further
be entitled to disclose the Confidential Information
of Purchaser received hereunder, but again subject to
a written agreement protecting such Confidential
Information from unauthorized use and disclosure, to
prospective and actual end users of Hosted Services
and to the respective employees, independent
15
contractors and agents of any of the foregoing, who
have a need to know in connection with the use or
prospective use of the Hosted Services. Confidential
Information shall not otherwise be disclosed to any
third party without the prior written consent of the
Discloser;
(b) to use such Confidential Information only for the
purposes of this Agreement or as otherwise expressly
permitted by this Agreement or by the Discloser in
writing; and
(c) except as otherwise expressly provided herein, to
make only such number of copies of Confidential
Information as is reasonably required in connection
with Recipient's permitted use under this Section
11.1 and to reproduce and maintain on any such copies
such proprietary legends or notices (whether of
Discloser or a third party) as are contained in or on
the original or as Discloser may otherwise reasonably
request.
11.2 Exceptions. The restrictions of Section 11.1 shall not apply
to information that:
(a) was publicly known prior to, or becomes
publicly known through no fault of Recipient
subsequent to, Discloser's communication thereof to
Recipient;
(b) was in Recipient's possession free of any
obligation of confidence at the time of Discloser's
communication to Recipient;
(c) is developed by Recipient independently of
and without use of any of Discloser's Confidential
Information or other information that Discloser
disclosed in confidence to any third party; or
(d) is rightfully obtained by Recipient from
third parties authorized to make such disclosure
without restriction.
11.3 Disclosure Pursuant to Legal Requirement or for Regulatory
Purpose. Confidential Information may be disclosed to the extent required by
law, including but not limited to the extent reasonably required to protect
against liability under federal securities laws. Subject to the disclosure
provisions described in this Section 11.3, the existence, terms, and performance
of this Agreement may also be disclosed to the Federal Communications Commission
(FCC) or state public utility commissions (PUCs) for purposes not inconsistent
with the terms of this Agreement or as otherwise agreed upon by the parties.
Except in regard to subpoenas, the party so intending to disclose shall a)
attempt in good faith to notify the other party at least one business day prior
to making any such disclosure where feasible, b) further reasonably cooperate in
any efforts of the other party to seek a protective order or other appropriate
remedy from the proper authority, c) furnish only that portion of the
Confidential Information that is legally required or reasonably necessary to
release to the FCC or a PUC for purposes not inconsistent with the terms of this
Agreement or as otherwise agreed upon by the parties, and d) further use all
reasonable efforts to assure confidential treatment of the disclosed
Confidential Information.
16
11.4 Return of Confidential Information. Confidential Information
shall be and remain the property of Discloser. All Confidential Information in
electronic form shall be erased or destroyed, and all such information in
tangible form, shall, at the discretion of Recipient, either be destroyed or
returned to the Discloser promptly upon the earlier of: (i) Discloser's written
request, (ii) discontinuation of the particular Service in connection with which
the Confidential Information was disclosed, or (iii) termination or expiration
of this Agreement and any transition period, and in any of such events and to
the applicable extent shall not thereafter be retained in any form by Recipient
unless otherwise expressly permitted hereunder; provided, however, that
notwithstanding the foregoing and for the avoidance of doubt, each party shall
be entitled to retain and use (and disclose as otherwise permitted by this
Section 11) any Confidential Information of the other party to the extent and
for so long as the same has been licensed to the holding party, or is in any
event reasonably required to be used in connection with their respective
exercise of any licenses granted to that party pursuant to, and which survive
the expiration or termination of, this Agreement. For the avoidance of doubt,
each party is also expressly permitted to retain this Agreement.
11.5 Equitable Relief. The parties acknowledge that their
respective Confidential Information is unique and valuable, and that breach by
either party of the obligations of this Agreement regarding such Confidential
Information will result in irreparable injury to the affected party for which
monetary damages alone would not be an adequate remedy. Therefore, the parties
agree that in the event of a breach or threatened breach of such provisions, the
affected party shall be entitled to specific performance and injunctive or other
equitable relief as a remedy for any such breach or anticipated breach without
the necessity of posting a bond. Any such relief shall be in addition to and not
in lieu of any appropriate relief in the way of monetary damages.
11.6 Survival. The provisions of this Section 11 shall survive the
expiration or any earlier termination of this Agreement for a period of three
(3) years.
SECTION 12: TRADEMARKS
12.1 Trademarks. Each party will not use any Xxxx of the other
party in any manner whatsoever without the other party's prior written approval,
except as expressly provided in this Agreement. Notwithstanding anything to the
contrary contained in this Agreement or in any approval or authorization
(existing now or in the future), a party's Marks are and will remain solely and
exclusively the party's property. Except as expressly provided in this
Agreement, a party will not, by virtue of this Agreement or any activities under
this Agreement, acquire any right, title, interest or license in the other
party's Marks.
12.2 Hosted Service Branding Exception. Purchaser is authorized and
required to use the Seller's Marks in providing Hosted Services to Seller and
acting on Seller's authority. Purchaser's use of Seller's Marks will comply with
Seller's brand usage guidelines (a copy of which will be provided at the xxxx
Xxxxxx requests the provision of Hosted Services). Seller may update, modify and
amend these guidelines at any time and from time to time, in its sole
discretion, and in this event Seller will provide to Purchaser a copy of the
update, modification or amendment through the notice provisions of Section 13
17
12.3 No Transfer of Marks. Seller retains all right, title,
interest and license to all Marks of Z-Tel Technologies, Inc. and all
subsidiaries and affiliates. Specifically, Seller retains all rights, title,
interest and license to the Trinsic brand and all Trinsic product names. For
sake of clarity, the terms "call point" and "telemail" are generic and not
branded marks of either party to this Agreement.
SECTION 13: NOTICES
13.1. Deemed Delivery. Any notices or deliveries permitted or
required by this Agreement will be deemed given (i) upon delivery by messenger,
if a receipt is obtained for delivery, (ii) one day after timely deposit for
overnight delivery with Federal Express, United Parcel Service, Airborne Express
or similar nationally recognized overnight delivery service, if such service
obtains a confirmation of delivery, (iii) five days after mailing, if mailed via
certified or registered U.S. mail, return receipt requested, or (iv) upon
confirmation of delivery, if sent by prepaid telegram; provided the notice is
delivered, deposited for delivery, mailed or sent to the party's address as set
forth below:
THE SELLER:
Z-Tel Technologies, Inc.
000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx, XX 00000
THE PURCHASER:
SipStorm, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Any party may change the address to which notices are to be delivered by giving
notice of the change of address in the manner set forth above; except, however,
that notwithstanding the foregoing provision, notice of a change of address will
be deemed made upon actual receipt of the notice by the other party or parties.
13.2. Saturday, Sunday or Legal Holiday. Notices deemed given or
delivered as set forth above on a Saturday, Sunday, or legal holiday will be
instead be deemed given or delivered on the next succeeding day which is not a
Saturday, Sunday or legal holiday.
18
SECTION 14: MISCELLANEOUS
14.1. Good Faith Performance. The parties will act in good faith in
the performance of their obligations under this Agreement consistent with the
purposes of this Agreement. Except as otherwise specifically noted in this
Agreement, neither party will unreasonably delay, withhold or condition any
approval or consent that this Agreement requires or permits.
14.2. No Exclusivity. Neither party is required to deal exclusively
with the other party. Both parties are free to enter into similar agreements
with other parties, including competitors of one another.
14.3 Dispute Resolution. The parties will work in good faith to
resolve informally any disputes internally by escalating them as necessary to
progressively higher levels of management. The parties will exchange escalation
lists setting forth responsible officers, including names, departments, titles
and telephone numbers.
14.3.1 Negotiations. The parties will attempt in good faith
to resolve any claim, controversy, or dispute between them, their
agents, employees, officers, directors or Affiliates through
negotiation. This provision will not be construed as a waiver of a
party's rights to seek legal or regulatory intervention as provided by
law.
14.3.2 Continued Performance. Unless performance is
otherwise expressly excused under this Agreement, both parties will
continue to perform during the dispute resolution process, including
with respect to billing disputes. Notwithstanding the foregoing,
nothing in this Section 14.3.2 will affect any right of either party to
terminate this Agreement to the extent expressly permitted.
14.4 Equitable Remedies. Each party acknowledges that the
performance of its obligations under this Agreement are essential to the
transactions contemplated, that the subject matter of this Agreement is unique
and the other party will not have an adequate remedy at law if the a party fails
to perform obligations hereunder. Accordingly, in such event, the each party
will have the right, in addition to any other rights it may have, to compel
specific performance of this Agreement.
14.5 Force Majeure. Neither party will be responsible for any delay
or failure in performance by it that results from causes beyond its reasonable
control ("Force Majeure Events"), whether or not foreseeable by such party. Such
Force Majeure Events include adverse weather conditions, flood, fire, explosion,
earthquake, volcanic action, power failure, embargo, boycott, war, revolution,
civil commotion, acts of terrorism, acts of public enemies, labor unrest
(including strikes, work stoppages, slowdowns, picketing or boycotts), and acts
of God. If a Force Majeure Event occurs, the non-performing party will give
prompt notification of its inability to perform to the other party. During the
period that the non-performing party is unable to perform, the other party will
also be excused from performance of its obligations to the extent such
obligations are reciprocal to, or depend upon, the performance of the
non-performing party which has been prevented by the Force Majeure Event. The
non-performing party will use commercially reasonable efforts to avoid or remove
the causes of its non-performance and both parties will proceed to perform once
the causes are removed or cease. Nothing in this Agreement will require the
non-performing party to settle any labor dispute except as the non-performing
19
party, in its sole discretion, determines appropriate. If a Force Majeure Event
continues for more than forty-five (45) days, then the party able to perform may
terminate this Agreement with Cause.
14.6. Cumulative and Severable Nature of Rights. The Seller
acknowledges and agrees that various rights and remedies of the Purchaser under
this Agreement are cumulative, severable and nonexclusive of one another and of
any other provision of this Agreement.
14.7. Waiver. No failure or delay on the part of any party to this
Agreement in the exercise of any right, power or remedy the party may have will
operate as a waiver, nor will any single or partial exercise of any right, power
or remedy by either party preclude any other or further exercise of that right,
power or remedy or the exercise of any other right, power or remedy. No express
waiver or assent by any party to any breach of or default in any term or
condition of this Agreement will constitute a waiver of or assent to any
succeeding breach of or default in the same or any other term or conditions of
this Agreement.
14.8. Entire Agreement. This Agreement supersedes all prior
discussions and agreements between the parties with respect to its subject
matter and this Agreement, together with any attachments or exhibits, contains
the sole and entire agreement between the parties with respect to the matters
covered by this Agreement.
14.9. Severability. Every provision of this Agreement is intended to
be severable. If any provision or portion of a provision is illegal or invalid,
then the remainder of this Agreement will not be affected. Moreover, any
provision of this Agreement which is determined to be unreasonable, arbitrary or
against public policy will be modified as necessary so that it is not
unreasonable, arbitrary or against public policy.
14.10. Amendments. Except as otherwise provided herein as to terms
that are unreasonable, arbitrary or against public policy, this Agreement will
not be modified or amended except by an instrument in writing signed by the
parties. All exhibits, schedules and other attachments to this Agreement are
incorporated by this reference as integral parts of this Agreement. To the
extent there is any conflict between this Agreement and any schedule or exhibit
to this Agreement, this Agreement (excluding the schedule or exhibit in
question) will govern.
14.11 Construction. This Agreement will be construed without regard
to which party was responsible for its preparation. Wherever from the context it
appears appropriate, each term stated in either the singular or the plural will
include the singular and the plural, and pronouns stated in the masculine,
feminine or neuter gender will include the other genders. The words "Agreement,"
"hereof," "herein" and "hereunder" and words of similar import referring to this
Agreement refer to this Agreement as a whole, including documents incorporated
by reference, and not to any particular provision of this Agreement. Whenever
the word "include," "includes" or "including" is used in this Agreement, it will
be deemed to be followed by the words "without limitation." The various headings
contained in this Agreement are inserted solely for convenience of reference and
in no way define, limit or extend the scope or intent of any of the provisions
of this Agreement.
20
14.12 Legal Matters. This Agreement will be governed and interpreted
under the laws of the State of Florida, without reference to its principles of
conflicts of law. Venue for the purposes of any litigation will lie solely in
the Florida Circuit Court in and for Hillsborough County, Florida or the United
States District Court in and for the Middle District of Florida. The Seller and
Purchaser hereby consent to the jurisdiction of the federal and state courts
located in Florida, and hereby consent to service of process by regular mail at
the address provided above for notices and deliveries under this Agreement. The
costs of any litigation (including attorneys' fees, court costs and the costs of
paralegal, accounting, financial and other legal and investigative support
personnel) will be borne by the non-prevailing party.
14.13 Survival of Warranties and Representations. The respective
warranties and representations in this Agreement will survive the execution of
this Agreement and continue for a period of three years after the Closing Date.
14.14 Execution and Counterparts. This Agreement may be executed in
two or more counterparts, each of which will be deemed an original, and all of
which will constitute one and the same instrument. Signed facsimile copies of
this Agreement, addenda, attachments, schedules and exhibits will legally bind
the parties to the same extent as original documents.
14.15 Incorporation of Exhibits. All exhibits, schedules and
attachments referred to in this Agreement are incorporated as integral parts of
this agreement.
14.16 Binding Effect. This Agreement will be binding upon and inure
to the benefit of the respective successors and permitted assigns of the parties
to this Agreement.
14.17 Saturday, Sunday or Legal Holiday. When the last day of a
period during which an act may be performed under this Agreement falls on a
Saturday, Sunday, or legal holiday that period will be deemed to end on the next
succeeding day which is not a Saturday, Sunday or legal holiday.
14.18 Relationship of the Parties. Nothing in this Agreement, or in
the course of dealing between the parties under this Agreement, will be deemed
to create between the parties (including their respective directors, officers,
employees and agents) a partnership, joint venture, association, employment
relationship or any other relationship, other than that of independent
contractors with respect to each other. Neither party will have the authority to
commit or legally bind the other party in any manner whatsoever, including, the
acceptance or making of any agreement, representation or warranty.
14.19 Allocation. The parties agree that the amounts paid, assets
delivered and liabilities assumed under this Agreement shall be allocated for
federal income tax and all other purposes as set forth on Schedule 6.
21
IN WITNESS WHEREOF, this Agreement has been executed and is effective as of the
date first set forth above:
Z-Tel Technologies, Inc SipStorm, Inc.
And Z-Tel Communications Inc:
By: By:
----------------------------------- ---------------------------------
Name: Name:
--------------------------------- ------------------------------
Title: Title:
-------------------------------- ------------------------------
Date: Date:
--------------------------------- ------------------------------
22
