EXHIBIT 10.3
PAYMENT Agreement entered into as of the October 31, 2001 between National
Online SERVICES, INC. ("NOL) and Trans Voice INVESTMENTS, Inc. ("Trans Voice").
INTRODUCTION
Trans Voice had provided services and introduction to service providers
to enable NOL to commence business including an introduction to a call center.
Prior to such introduction and in consideration of such introduction and
services NOL had promised Trans Voice a fee of $4.00 per month for each customer
(not including any trial customer). No amounts have been paid but the parties
believe, based upon projections, that such obligation would have a substantial
negative effective upon NOL's ability to operate. Therefore, the parties desire
to modify the agreement to provide for a fixed payment of $150,000 per month or
$1,800,000 annually compared to a total annual fee of $4,800,000 for a potential
of 100,000 customers per month, which is projected. NOL agrees to pay Trans
Voice an additional $1.00 per month if the number of customers is in excess of
100,000. In addition, NOL shall provide Trans Voice and its executive with
office space.
AGREEMENT
1. As used herein the following terms shall have the meanings set forth
below:
"Program" shall refer to any Internet provider or web creation
or other internet service provided to any customer of NOL or Global Asset
Holdings, Inc. ("Global") and any of their direct or indirect subsidiaries or
affiliates ("Related Parties").
"Monthly Customer" shall refer to any customer of any program
paying a fee or other change for services. It shall not include any customer
during any trial period.
"Payment Date" shall refer to the first day of each month
commencing October 1, 2001.
"Subsidiary" shall include entity which NOL or Global controls
directly or indirectly.
2. (a) NOL agrees to pay to Trans Voice and Trans Voice agrees to
accept as payment for all services and introductions provided by it to NOL the
following:
(i) $150,000 each month;
(ii) one dollar for every paying customer of NOL in
excess of 100,000 customers in any month in which the number of customers exceed
100,000.
(b) On the Payment Date NOL shall pay Trans Voice (i) the amounts
set forth in paragraph 2(a) and (ii) amounts required by paragraph 2(b) for the
month ending twenty eight (28) or more days prior to the Payment Date. Payment
shall be accompanied by written verification of the number of customers signed
by the Company's Chief Financial Officer.
3. During the term of this Agreement NOL or Global shall provide two
executive sized offices to Trans Voice executives together with customary office
services.
4. Trans Voice accepts payment and office space and services hereunder
in lieu of all other payment terms or obligations for finder's fees or fees for
services it may be entitled to.
5. (a) NOL shall keep and maintain in the regular course of its
business, in accordance with generally accepted accounting principles, complete
and accurate books and records covering all transactions relating to the
Program.
(b) Trans Voice agrees and acknowledges that all books, records,
correspondence, customer lists and data of NOL pertaining to transactions
relating to the customer are the exclusive property of NOL and customer lists
compiled by NOL for the Products constitute trade secrets and are the exclusive
property of NOL and that at no time, shall Trans Voice transfer utilize said
customer lists for any purpose except to verify and confirm the amount of
payments due hereunder of any other rights hereunder.
(c) Trans Voice subject to the provisions of paragraph 5(b) hereof,
shall have the right during the term of this Agreement and for three (3) years
thereafter, at its cost and expense and during regular business hours, to
inspect and copy and make extracts from said books and records and to designate
an authorized representative, including without limitation, a firm of certified
public accountants to audit NOL books and records and to conduct such further
investigation as Transferee shall deem necessary to verify NOL's performance of
all of its obligations hereunder including, without limitation, additional
payments.
(d) If, as a result of any examination of NOL's books and records,
it appears that NOL's payments were less than the amount which should have been
paid, NOL shall promptly pay the amount of discrepancy or shortage, which shall
bear interest from the date such royalty payments were due at two (2%) percent
higher than the prime rate Citibank to its most creditworthy corporate borrowers
as of such due date, and if the amount of such discrepancy or shortage shall be
an amount equal to at least one (1%) percent of the amount payable during the
period in question, NOL shall also reimburse Trans Voice for the cost of such
examination.
(e) Trans Voice's rights against NOL shall also be enforceable
against each Related Party receiving revenue for any Program upon failure of NOL
or Global to perform any provision herein.
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6. Term. This Agreement shall continue while NOL or any Related Party
is receiving revenues from a Program. The period in which the Agreement is in
effect shall be the "Term". All payment and record preservation obligations
hereunder shall survive termination.
7. Notices. All notices, demands, requests, consents, approvals or
other communications (each of the foregoing, a "Notice") required or permitted
to be given hereunder or pursuant hereto or that are given with respect to this
Agreement to either/any party hereto shall be in writing and shall be (a)
personally delivered, (b) sent by both registered or certified mail, postage
prepaid and return receipt requested, and regular first class mail, (b) sent
both by facsimile transmission with receipt of transmission confirmed
electronically or by telephone and by regular first class mail, (c) sent by
telegram or telex or (d) sent by reputable overnight courier service with
charges prepaid and delivery confirmed, to the intended recipient at its
respective address as set forth below or such other address given by notice
hereby:
if to Trans Voice:
Mr. Xxxxxx Xxxxxx
00 Xxxxxxxx Xxxxx
Xxxx Xxxx, Xxx Xxxx 00000
Fax No. (000) 000-0000
if to NOL:
Xx. Xxxxxx Xxxxxxxx
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Fax No. (000) 000-0000
Any Notice delivered or sent as provided above shall be deemed given when so
delivered or sent and shall be deemed received (a) when personally delivered,
(b) three (3) Business Days (as hereinafter defined) after being mailed as above
provided, (c) when sent by facsimile transmission as above provided, (d) when
sent by telex or telegram as above provided or (e) one (1) Business Day after
being sent by courier as above.
8. Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein, constitutes the entire agreement
of the parties with respect to the subject matter hereof and supersedes, and
merges herein, all prior and contemporaneous negotiations, discussions,
representations, understandings and agreements between the parties, whether oral
or written, with respect such subject matter. No representation, warranty,
restriction, promise, undertaking or other agreement with respect to such
subject matter has been made or given by any party hereto other than those set
forth in this Agreement.
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9. Amendment and Waiver. This Agreement may be amended, modified or
supplemented only to the extent expressly set forth in writing that is signed by
the party to be charged therewith and that sets forth therein that its purpose
is to amend, modify or supplement this Agreement or some term, condition or
provision hereof. No waiver of any term, condition or provision of this
Agreement or of any breach or violation of this Agreement or any provision
hereof shall be effective except to the extent expressly set forth in writing
that is signed by the party to be charged therewith.
10. Assignment; No Third Party Beneficiaries. NOL may not assign this
Agreement and the rights, duties and obligations hereunder without the prior
written consent of Trans Voice. Trans Voice may assign or delegate its rights
hereunder. Except as provided in the immediately preceding sentence, any
purported assignment or delegation of rights, duties or obligations hereunder
made by NOL without the prior written consent of Trans Voice shall be null and
void and of no effect. This Agreement and the provisions hereof shall be binding
upon and enforceable against each of the parties hereto and its respective
estate, heirs, executors, administrators, legal representatives, successors and
assigns and shall inure to the benefit of and be enforceable by each of the
parties and its respective estate, heirs, executors, administrators, legal
representatives, successors and permitted assigns. Except as expressly provided
for in this Agreement, this Agreement is not intended to confer any rights or
benefits on any Persons other than the parties hereto and their respective
estate, heirs, executors, administrators, legal representatives, successors and
permitted assigns.
11. Severability. It is the parties' intent that this Agreement and
each term and provision hereof be enforceable in accordance with its terms and
to the fullest extent permitted by law. Accordingly, to the extent any term or
provision of this Agreement shall be determined or deemed to be valid or
unenforceable, such provision shall be deemed amended or modified to the
minimum extent necessary to make such provision, as so amended or modified,
valid and enforceable.
12. Titles and Headings; Rules of Interpretation. Titles, captions and
headings of the sections, articles and other subdivisions of this Agreement are
for convenience of reference only and shall not affect the construction or
interpretation of any provision of this Agreement. References to Sections and
Articles refer to sections and articles of this Agreement unless otherwise
stated. Words such as "herein," "hereinafter," "hereof," "hereto," "hereby" and
"hereunder," and words of like import, unless the context requires otherwise,
refer to this Agreement [(including the exhibits and other attachments hereto)]
taken as a whole and not to any particular Section, Article or other provision
hereof. As used in this Agreement, the masculine, feminine and neuter genders
shall be deemed to include the others if the context requires, and if the
context requires, the use of the singular shall include the plural and visa
versa.
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IN WITNESS WHEREOF, the undersigned have executed this payment
agreement as of October 31, 2001.
NATIONAL ONLINE SERVICES, INC.
By:
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TRANS VOICE INVESTMENTS, INC.
By:
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Global Asset Holdings, Inc., as sole stockholder of NOL, agrees to
cause any Related Party to comply with the terms of this Agreement including but
not limited to terms of paragraphs 2, 3 and 5.
GLOBAL ASSET HOLDINGS, INC
By:
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