Exhibit 10.1
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EXECUTION COPY
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (this "Agreement") is effective as of September
25, 2002 (the "Effective Date") between EarthLink, Inc., a Delaware corporation
("EarthLink"), GoAmerica, Inc., a Delaware corporation ("Parent"), and GoAmerica
Communications Corporation, a Delaware corporation and wholly-owned subsidiary
of Parent ("Sub", and together with Parent, "GoAmerica").
RECITALS
Parent and Sub are the owners of all right, title and interest in and to
the assets described in Exhibit A hereto, which include GoAmerica's subscriber
base, among other assets (the "Transferred Assets"), which are used in or
related to GoAmerica's wireless data service provider business (the "Business").
GoAmerica desires to sell and assign the Transferred Assets to EarthLink and
EarthLink desires to purchase from GoAmerica the Transferred Assets, all on the
terms and subject to the conditions set forth in this Agreement.
In connection with this Agreement and as elements of an overall strategic
relationship, the parties will simultaneously enter into (i) a bilateral Sales
Agent Agreement, pursuant to which each party will serve as a sales agent for
certain of the products and services of the other party, (ii) a Technology
Development Agreement, pursuant to which the parties will develop certain
technologies for use in the wireless data services business, (iii) a License
Agreement, pursuant to which the GoAmerica will license to EarthLink certain
software and other technologies required by EarthLink to service the Transferred
Assets, and (iv) an Escrow Agreement, which defines EarthLink's rights to access
the source code for certain of the licensed software. This Agreement, together
with the Sales Agent Agreement, the Technology Development Agreement, the
License Agreement and the Escrow Agreement are referred to collectively as the
"Related Agreements." The Parties agree that the Related Agreements collectively
represent an integrated transaction and that none of the Related Agreements
would have been executed but for the execution of the others. Thus, the Parties
agree that the consideration provided for each of the Related Agreements is
consideration provided in exchange for the Parties' duties and obligations under
all of the Related Agreements and that such consideration is full and fair
consideration for each of the Parties' duties and obligations under all of the
Related Agreements.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in the Related Agreements and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
AGREEMENT
1. DEFINITIONS. The following terms shall have the following meanings in this
Agreement.
"Bounty" means the amount that EarthLink will pay GoAmerica for each
Qualified Subscriber provided by GoAmerica, which is described as the Applicable
Bounty per Qualified Subscriber on Exhibit A.
"CDPD Subscriber Transition End Date" means the date on which the transfer
of CDPD platform-based Subscribers from GoAmerica's systems onto EarthLink's
systems is completed and EarthLink begins to provide wireless services to such
Subscribers.
"EarthLink Service" means EarthLink's mobile wireless service, regardless
of technology.
"Final Subscriber Transition End Date" means the date on which the final
transfer of CDPD platform-based Subscribers and Non-CDPD platform-based
Subscribers from GoAmerica's systems onto EarthLink's systems is completed and
EarthLink begins to provide wireless services to such Subscribers.
"Non-CDPD Subscriber Transition End Date" means the date on which the
transfer of Non-CDPD platform-based Subscribers from GoAmerica's systems onto
EarthLink's systems is completed and EarthLink begins to provide wireless
services to such Subscribers.
"Opt-out Date" means the date between the Effective Date and the Subscriber
Transition Commencement Date specified in GoAmerica's notice to Subscribers as
described in Section 2.1.2 of this Agreement, which date shall be October 5,
2002 or such other date as the parties may agree in writing.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or any governmental body.
"Qualified Subscriber" means a Subscriber whose account is transferred to
EarthLink pursuant to this Agreement or who, within the first six (6) months
following the Effective Date, becomes an EarthLink Service customer, and in each
case pays EarthLink for two (2) consecutive months of EarthLink Service.
"Subscriber" means any Person billed by GoAmerica that gains access to any
Internet-related services through the cellular or similar protocols.
"Subscriber Transition Commencement Date" means the date on which the
transfer of Subscribers from GoAmerica's system onto EarthLink's system begins,
which date shall be October 8, 2002 or such other date as the parties may agree
in writing.
CONFIDENTIAL 2 ACQUISITION AGREEMENT
"Subject Transaction" means a transaction or a series of related
transactions with a third party undertaken in any form whatsoever, which if
consummated, would result in any of the following: (a) the shareholders of
either Parent or Sub would not own (immediately following the consummation of
such transaction or series of related transactions) at least [**]% of the total
voting power represented by the outstanding voting equity securities of Parent
or Sub respectively, or (b) the sale of any asset, including without limitation,
the Licensed Software and Server Software as defined in the License Agreement,
whether alone or in combination with any other assets, that is significant to
GoAmerica's business or would be, if the asset were owned by EarthLink,
significant to EarthLink's business.
"Transferred Assets" means the assets set forth in Exhibit A.
"Transition Period" means the period between the Effective Date and the
Final Subscriber Transition End Date.
2. DUTIES AND OBLIGATIONS OF THE PARTIES.
2.1 Duties and Obligations of GoAmerica. In connection with this Agreement,
GoAmerica shall have the following duties and obligations:
2.1.1 Notification Email and Opt-out Provision. On September 28, 2002,
GoAmerica will send an e-mail to all Subscribers notifying all Subscribers that
(a) GoAmerica is in the process of selling its accounts to EarthLink, (b)
GoAmerica will terminate service to all Subscribers as of the applicable
transfer date described below in Section 2.1.3, (c) each Subscriber will have
the opportunity to opt out of the transfer of the Subscriber's account to
EarthLink by notifying GoAmerica by means of a specified procedure on or before
the Opt-out Date, (d) each Subscriber who opts out on or before the transfer
will need to find a wireless service provider other than GoAmerica, (e) the
accounts of all Subscribers who do not opt out on or before the Opt-out Date
will be transferred to EarthLink, (f) each Subscriber will be given an
opportunity to review EarthLink's Internet Service Agreement by means of a
hyperlink to such agreement prominently displayed in the e-mail, (g) unless a
Subscriber opts out of the transfer, each Subscriber shall be deemed to be bound
by the terms and conditions of the EarthLink Internet Services Agreement.
GoAmerica shall submit this email to EarthLink for its prior approval and
comment prior to transmitting it to the Subscribers.
2.1.2 Opt-out Follow Up. Two (2) days before the Opt-out Date,
GoAmerica shall send a follow-up e-mail to all Subscribers with substantially
the same content as the e-mail referred to in Section 2.1.1 above. GoAmerica
shall submit this email to EarthLink for its prior approval and comment prior to
transmitting it to the Subscribers.
2.1.3 Transfer of Transferred Assets.
(a) CDPD Platform-based Subscribers. On September 27, 2002,
GoAmerica shall deliver to EarthLink a database, in a form and containing data
in the form attached as Exhibit B, an electronic database of customer
information related to GoAmerica's CDPD platform-based Subscribers. EarthLink
shall have two (2) business days to verify the
CONFIDENTIAL 3 ACQUISITION AGREEMENT
contents and form of the database and accept or reject the database. If after
such review, EarthLink notifies GoAmerica that EarthLink has accepted the
database, then the CDPD platform-based Subscribers shall be transferred to
EarthLink, free and clear of any third party claim, interest or encumbrance, as
of October 8, 2002 (subject to Section 2.1.13 with respect to the [**] CDPD
Subscribers). If EarthLink promptly notifies GoAmerica of all specific
deficiencies in the database that causes EarthLink to reasonably reject the
database, then GoAmerica shall have two (2) business days to correct such
deficiency or deficiencies and resubmit the database to EarthLink for another
two (2) business day verification process. This process shall be repeated, and
the date on which the Subscribers are transferred appropriately delayed, until
EarthLink accepts the database; however, if EarthLink rejects the database two
(2) or more times, EarthLink may unilaterally terminate this Agreement and all
other Related Agreements without any liability whatsoever.
(b) Non-CDPD Platform-based Subscribers. On or before October 26,
2002, GoAmerica shall deliver to EarthLink a database, in a form and containing
data in the form attached as Exhibit B, an electronic database of customer
information related to GoAmerica's non-CDPD platform-based Subscribers.
EarthLink shall have two (2) business days to verify the contents and form of
the database and accept or reject the database. If after such review, EarthLink
notifies GoAmerica that EarthLink has accepted the database, then the non-CDPD
platform-based Subscribers shall be transferred to EarthLink, free and clear of
any third party claim, interest or encumbrance, as of November 1, 2002. If
EarthLink promptly notifies GoAmerica of all specific deficiencies in the
database that causes EarthLink to reasonably reject the database, then GoAmerica
shall have two (2) business days to correct such deficiencies and resubmit the
database to EarthLink for another two (2) business day verification process.
This process shall be repeated, and, if necessary, the date on which the
Subscribers are transferred appropriately delayed, until EarthLink accepts the
database; however, if EarthLink rejects the database 2 or more times, EarthLink
may unilaterally terminate this Agreement and all other Related Agreements
without any liability whatsoever. In such event EarthLink and GoAmerica shall
work together diligently and in good faith to unwind any Subscriber transfers
and other asset transfers that may have previously occurred, and each party
shall promptly reimburse to the other party any and all amounts paid by the
other party in connection with this Agreement and any of the other Related
Agreements.
(c) [**] Credit. Immediately following the Effective Date,
GoAmerica shall exert best efforts to cause its [**] Dollars ($[**]) credit with
[**] (the "[**] Credit") to be transferred in full to EarthLink for EarthLink's
benefit.
2.1.4 Forward Subscribers Email. GoAmerica will forward each
Subscriber's e-mail for a period of ninety (90) days after the CDPD Subscriber
Transition End Date or Non-CDPD Subscriber Transition End Date, respectively, to
such Subscriber's new EarthLink e-mail address. GoAmerica will also include in
such e-mail other text requested by EarthLink that is mutually agreed-upon by
the parties.
2.1.5 Operation of the Business During the Transition Period. Except
as expressly permitted or required hereby, at all times during the Transition
Period, GoAmerica will continue to operate the Business in the ordinary course
consistent with past practice (including,
CONFIDENTIAL 4 ACQUISITION AGREEMENT
without limitation, with regard to billing and collection practices and efforts
to retain existing Subscribers, but not necessarily to obtain new Subscribers)
and will not engage in any practice, take any action, embark on any course of
action or enter into any transaction that would have an adverse effect on the
Transferred Assets or GoAmerica's ability to perform its obligations under this
Agreement or any of the other Related Agreements. During the Transition Period
GoAmerica will take all actions necessary to effectuate a transfer of the
Transferred Assets and will not: (a) sell, lease, license or otherwise dispose
of any of the Transferred Assets; (b) suffer or permit any encumbrance to arise
or be granted or created against or upon any of the Transferred Assets; (c)
sell, assign, pledge, mortgage or otherwise transfer, or suffer any damage,
destruction or loss (whether or not covered by insurance) to, any of the
Transferred Assets; (d) amend, terminate or fail to renew any contract
(including, without limitation, any Subscriber contracts), agreement, lease,
franchise, license or other agreement directly relating to the Transferred
Assets without first obtaining the prior written consent of EarthLink; (e) waive
any accounts receivable or outstanding bills, discount future bills or provide
any services without payment relating to the Transferred Assets; (f) enter into
any credit arrangement or assume any debt obligation directly relating to the
Transferred Assets; (g) enter into any transaction or agreement relating to the
Business that could reasonably be expected to have a material adverse effect on
the Transferred Assets; or (h) agree or commit to do any of the foregoing. Until
the Final Subscriber Transition End Date, GoAmerica will continue to provide
support services to all Subscribers consistent with its existing services,
including handling inquiries about the transition.
2.1.6 Performance of Certain Obligations.
(a) During the period prior to and for six (6) months after the
Final Subscriber Transition End Date, GoAmerica shall perform in full all
obligations and agreements existing between GoAmerica and any third party that
are not assumed by EarthLink in writing and which relate to the Transferred
Assets.
(b) GoAmerica shall fully extinguish any indebtedness owing by
GoAmerica to any third party that is not assumed by EarthLink in writing and
which any way is related to the Transferred Assets
(c) Prior to and during the six (6) months following the Final
Subscriber Transition End Date, GoAmerica shall not commence any voluntary
bankruptcy proceeding and shall oppose any involuntary bankruptcy proceeding
commenced against it.
2.1.7 Notice of Developments. During the Transition Period, GoAmerica
will give prompt written notice to EarthLink of any material development
affecting the Business and/or the Transferred Assets (including, without
limitation, the Subscriber accounts).
2.1.8 Access. At all times during the Transition Period, GoAmerica
will provide representatives of EarthLink with reasonable access to the
personnel, officers, agents, employees, assets (including, without limitation,
the Transferred Assets and any other assets used in the operation of the
Business relating to the Transferred Assets), properties, titles, contracts
(including, without limitation, Subscriber contracts), books, records
(including, without limitation, tax records), files and documents (including,
without limitation, financial, tax basis,
CONFIDENTIAL 5 ACQUISITION AGREEMENT
budget projections, auditors' work papers and such other information as
EarthLink may reasonably request), customers, suppliers, legal counsel,
independent auditors and other representatives.
2.1.9 Taxes. GoAmerica shall be responsible for and shall pay when due
and discharge all taxes associated with its sale of the Transferred Assets and
all amounts that EarthLink pays to GoAmerica pursuant to any of the Related
Agreements Assets (including, without limitation, transfer taxes, bulk sales
taxes, taxes on GoAmerica's income and other similar taxes).
2.1.10 Expenses. GoAmerica shall promptly discharge all liabilities
incurred by GoAmerica relating to the Transferred Assets.
2.1.11 Further Assurances. GoAmerica shall execute and deliver such
documents necessary to convey, grant, assign, transfer and deliver to EarthLink
and its successors and assigns, free and clear of any and all liens, claims,
charges and encumbrances, all of GoAmerica's right, title and interest in and to
the Transferred Assets.
2.1.12 Consents. GoAmerica shall obtain all consents necessary for the
execution, delivery and performance of this Agreement unless waived by EarthLink
in writing.
2.1.13 [**] Subscribers. GoAmerica and EarthLink shall each use
commercially reasonable efforts to develop a Subscriber transition plan with
[**]for the timely, efficient transfer of the [**] CDPD Subscriber base (as set
forth on Exhibit A), on or before November 1, 2002, for which [**] is a reseller
for GoAmerica. The Parties agree that [**] refusal or failure to agree to a
transition plan shall not be deemed a breach of this Agreement by GoAmerica.
2.1.14 CDPD Agreements. GoAmerica shall be responsible for all
liabilities associated with all CDPD cellular provider agreements that EarthLink
elects to discontinue by giving GoAmerica written notice no later than October
1, 2002.
2.1.15 Non-CDPD Agreements. GoAmerica shall be responsible for all
liabilities associated with all Non-CDPD cellular provider agreements that
EarthLink elects to discontinue by giving GoAmerica written notice no later than
October 30, 2002.
2.1.16 Assistance.
(a) Subscriber Transfers. GoAmerica shall exert reasonable best
efforts to ensure the successful transfer of Subscribers to EarthLink. GoAmerica
understands that EarthLink will treat each sub-category of Subscribers (as
described in Exhibit A) independently and will use differing methods to attempt
to convert the Subscribers to EarthLink's service, and further understands that
EarthLink's methods (including usage plans and related pricing) may discourage
certain Subscribers from becoming Qualified Subscribers. GoAmerica understands
that the conversion of the Subscribers from GoAmerica's service to EarthLink's
service may include a reasonable hardware cost for the Subscribers, which cost
shall been borne by either or both of the Subscriber and EarthLink; however,
EarthLink shall offer the hardware to the Subscribers at or less than the
prevailing retail price.
CONFIDENTIAL 6 ACQUISITION AGREEMENT
(b) Agreements. GoAmerica shall exert best efforts to cause the
assignment to EarthLink of third-party agreements related to the Transferred
Assets for which EarthLink requests assignment.
2.1.17 Reimbursement. GoAmerica shall reimburse EarthLink the
respective Applicable Bounty per Qualified Subscriber (as described in Exhibit
A) for any Qualified Subscriber who terminates the EarthLink Service within the
first three months of becoming a Qualified Subscriber and who within six (6)
months of such termination becomes a customer of any of GoAmerica's services
that are substantially similar to the EarthLink service(s) for which such
Subscriber was a Qualified Subscriber. GoAmerica also agrees to credit fees for
any Subscribers that (a) chargeback or receive credit for service within the
first three months after they have become Qualified Subscribers and (b) have
zero usage on such account during the aforementioned period. GoAmerica
understands that EarthLink will use commercially reasonable efforts to find
price points for the Subscribers that match the GoAmerica service offerings for
which the Subscribers were customers; however, EarthLink reserves the right to
increase, or lower, the monthly service price. Notwithstanding the foregoing,
EarthLink will not increase the monthly service price for the Subscriber during
the first two (2) pay periods during which a Subscriber becomes an EarthLink
subscriber.
2.2 Duties and Obligations of EarthLink. In connection with this Agreement,
EarthLink shall have the following duties and obligations:
2.2.1 Payment. EarthLink shall pay GoAmerica the Applicable Bounty per
Qualified Subscriber (described in Exhibit A) for each of GoAmerica's
Subscribers that becomes a Qualified Subscriber. The total Bounty shall be paid
as follows:
(a) First Payment. Upon EarthLink's acceptance of the CDPD
platform-related database per Section 2.1.3(a) EarthLink shall pay [**] Dollars
($[**]), which represents prepaid fees of [**] Dollars ($[**]) for CDPD
platform-based Subscribers and [**] Dollars ($[**]) for Non-CDPD platform-based
Subscribers by wire transfer of funds to GoAmerica's account the instructions
for which GoAmerica must provide to EarthLink in writing before such wire
transfer hereto (the "GoAmerica Account").
(b) Second and Third Payments. EarthLink shall determine the
number of actual Qualified Subscribers after two monthly billing cycles
following each of the transfers of the (i) CDPD platform-based Subscribers
(except for the [**] CDPD Subscribers) per Section 2.1.3(a) (the "CDPD
Determination") and (ii) non-CDPD platform-based Subscribers (including any [**]
CDPD Subscribers per Section 2.1.13) per Section 2.1.3(b) (the "Non-CDPD
Determination"). Promptly after the CDPD Determination, EarthLink shall pay the
total net amount of Bounties due for the CDPD platform-based Subscribers less
[**] Dollars ($[**]by wire transfer to the GoAmerica Account. Promptly after the
Non-CDPD Determination, EarthLink shall pay the total net amount of Bounties due
for the Non-CDPD platform-based Subscribers and any [**] CDPD Subscribers less
[**] Dollars ($[**]) by wire transfer to the GoAmerica Account.
(c) [**] Credit Payment. Upon receipt by EarthLink of written
confirmation from [**]of the transfer of the full [**] Credit in accordance with
Section 2.1.3(c),
CONFIDENTIAL 7 ACQUISITION AGREEMENT
EarthLink shall pay GoAmerica [**] Dollars ($[**]) by wire transfer to the
GoAmerica Account. However, if [**] does not transfer the [**] Credit to
EarthLink within [**] days after the Effective Date, GoAmerica agrees to procure
for EarthLink [**] 1xRTT cards, at GoAmerica's expense except for shipping
costs, with a value of $[**] per 1xRTT card.
(d) Right to Setoff. Either party (the "Offsetting Party") shall
have the right to set off against payment due to the other party hereunder any
amounts that the other party then owes to the Offsetting Party, including,
without limitation, any amounts subject to an indemnifiable claim, whether
arising out of this Agreement or any of the Related Agreements. Prior to
exercising this right, the Offsetting Party, through a vice president or higher
officer, shall first attempt, in good faith, to resolve the matter giving rise
to setoff to the satisfaction of both parties with a vice president or higher
officer of the other party, but is not obligated to do so for more than [**]
business days after the Offsetting Party notifies the other party of its offset
right.
(e) Maintenance of Records; Audit. EarthLink will maintain proper
books and records so as to allow for the verification of amounts paid or owed to
GoAmerica. During the one hundred twenty (120) day period following the Final
Subscriber Transition End Date, GoAmerica will have a one time right to audit
and analyze the EarthLink's records solely as they relate to payments due
GoAmerica hereunder and to ensure compliance with all payment terms of this
Agreement. Unless agreed to otherwise in writing by the Parties, such audit will
be conducted during the usual business hours and at EarthLink's place of
business. The audited books and records as well as the results of any such audit
will be considered Confidential Information as set forth in this Agreement.
GoAmerica will bear the costs and expenses of the audit. In the event such an
examination discloses that EarthLink owes GoAmerica an amount that is five
percent (5%) or more than the fees actually paid, in addition to paying any
additional amount which such audit may show is owed, EarthLink shall pay all
costs reasonably incurred by GoAmerica in connection with the audit.
2.2.2 Notification Email Support. EarthLink shall cooperate in the
preparation of the e-mail notices contemplated in Sections 2.1.1 and 2.1.2
above, including, without limitation, providing GoAmerica with any requested
text, providing GoAmerica with relevant information requested by GoAmerica and
answering any questions of GoAmerica with respect to such notices.
2.2.3 Additional Duties and Obligations of EarthLink. EarthLink shall
provide all wireless access, billing, customer support, and technical support to
the transferred Subscribers including without limitation, the Browser Only
Subscribers (as defined in the Sales Agent Agreement), as of the first date that
EarthLink begins billing such Subscribers. EarthLink shall remit to GoAmerica on
a monthly basis any Subscriber fees owed to GoAmerica received by EarthLink that
relate to any period prior to the date EarthLink begins to xxxx the Subscribers
for EarthLink's account. GoAmerica shall remit to EarthLink on a monthly basis
any fees owed to EarthLink received by GoAmerica that relate to any period after
the date EarthLink begins to xxxx the Subscribers for EarthLink's account. From
and after the Effective Date, EarthLink shall use its regular business practices
in collecting any amounts from any Qualified Subscriber that are due GoAmerica.
CONFIDENTIAL 8 ACQUISITION AGREEMENT
2.3 Press Release. Neither party shall issue a press release or similar
public announcement of any kind regarding this Agreement without the prior
written approval of the other party except as required by securities law.
3. REPRESENTATIONS AND WARRANTIES.
3.1 Representations and Warranties of GoAmerica. Parent and Sub, jointly
and severally, represent and warrant to EarthLink as follows:
3.1.1 Due Organization. Each of Parent and Sub is a corporation duly
organized, validly existing, and in good standing under the laws of the state of
incorporation, and has full corporate power and authority to own and lease its
properties and assets and to carry on its business as now conducted. Each of
Parent and Sub is qualified to do business in all other jurisdictions where such
qualification would be required as a result of Parent's and/or Sub's ownership
and operation of the Business and the Transferred Assets, except where the
failure to be so qualified does not and could not reasonably be expected to have
a material adverse effect on the Business or the Transferred Assets.
3.1.2 Due Authorization. Each of Parent and Sub has full power and
authority to execute, deliver and perform this Agreement and to carry out the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of GoAmerica and no other corporate
proceedings on the part of GoAmerica are necessary to authorize this Agreement
and the transactions contemplated hereby. This Agreement has been duly and
validly executed and delivered by Parent and Sub and constitutes the valid and
binding obligation of them, enforceable in accordance with its terms, except to
the extent that enforceability may be limited by laws affecting creditors'
rights and debtors' obligations generally, and legal limitations relating to
remedies of specific performance and injunctive and other forms of equitable
relief (the "Equitable Exceptions"). The execution, delivery, and performance of
this Agreement (as well as any other instruments, agreements, certificates, or
other documents contemplated hereby) by Parent and Sub, do not (i) violate any
statues, laws, rules, ordinances or any court order of governmental body
requirement applicable to Parent or Sub, or the property of Parent or Sub, (ii)
violate or conflict with, or permit the cancellation of, or constitute a default
under, any material agreement to which Parent or Sub is a party, or by which
Parent or Sub or any of their property is bound, (iii) permit the acceleration
of the maturity of any material indebtedness of, or indebtedness secured by the
property of Parent or Sub which will not be paid in full as of the date of this
Agreement, (iv) violate or conflict with any provision of the charter or bylaws
of Parent or Sub or (v) require any consent, approval or authorization of, or
notice to, or declaration, filing or registration with, any governmental body or
other third party.
3.1.3 Transferred Assets. Parent and Sub have full and unrestricted
legal title to the Transferred Assets and all revenue generated by the
Transferred Assets, in each case free and clear of any and all liens, claims,
revenue sharing or referral fees, charges, encumbrances or restrictions of any
kind, and upon EarthLink's receipt of the Transferred Assets, EarthLink shall
own the Transferred Assets, free and clear of any liens, claims, charges,
encumbrances or
CONFIDENTIAL 9 ACQUISITION AGREEMENT
restrictions of any kind. All the information relating to the Transferred Assets
set forth on Exhibit A is true and accurate in all material respects.
3.1.4 Claims. There are no claims, actions, suits, proceedings, or
investigations pending or, to the best knowledge and belief of Parent and Sub,
threatened against or affecting Parent or Sub and relating to the Business or
any of the Transferred Assets, at law or in equity, before or by any court,
municipality or other governmental body which, if adversely determined, could
individually or in the aggregate have a material adverse effect on the
Transferred Assets or the Business. Neither Parent nor Sub has been and neither
is now, subject to any court order, stipulation, or consent of or with any court
or governmental body related to the Transferred Assets. No inquiry, action or
proceeding has been instituted or, to the best knowledge of Parent and Sub,
threatened or asserted against Parent or Sub to restrain or prohibit the
carrying out of the transactions contemplated by this Agreement or to challenge
the validity of such transactions or any part thereof or seeking damages on
account thereof. To the best knowledge of Parent and Sub, there is no basis for
any such valid claim or action.
3.2 Representations and Warranties of EarthLink. EarthLink represents and
warrants to GoAmerica as follows:
3.2.1 Due Organization. EarthLink is a corporation duly organized,
validly existing, and in good standing under the laws of the state of Delaware
and has full corporate power and authority to carry on its business as now
conducted.
3.2.2 Due Authorization. EarthLink has full power and authority to
execute, deliver and perform this Agreement and to carry out the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by EarthLink and constitutes the valid and binding obligations of
EarthLink, enforceable in accordance with its terms, except to the extent that
enforceability may be limited by the Equitable Exceptions.
3.2.3 Claims. There are no claims, actions suits, proceedings, or
investigations pending or, to the best knowledge and belief of EarthLink,
threatened against or affecting EarthLink and relating to any EarthLink Service,
at law or in equity, before or by any court, municipality or other governmental
body which, if adversely determined, could individually or in the aggregate have
a material adverse effect on the Transferred Assets. No inquiry, action or
proceeding has been instituted or, to the best knowledge, threatened or asserted
against EarthLink to restrain or prohibit the carrying out of the transactions
contemplated by this Agreement or to challenge the validity of such transactions
or any part thereof or seeking damages on account thereof. To the best knowledge
of EarthLink, there is no basis for any such valid claim or action.
4. RESTRICTIVE COVENANTS.
4.1 GoAmerica. Except in the event of termination of this Agreement due to
an uncured material breach by EarthLink, for a period of [**] years after the
Final Subscriber Transition End Date, GoAmerica shall not, either individually,
or in partnership or jointly or in conjunction with any Person as principal,
agent, employee or shareholder or in any other manner whatsoever:
CONFIDENTIAL 10 ACQUISITION AGREEMENT
4.1.1 knowingly contact or solicit any Qualified Subscribers or other
customers of EarthLink (directly or indirectly) for the purpose of diverting any
existing or future business of such Qualified Subscribers to a competing service
offered by GoAmerica, [**] or any of their affiliates or subsidiaries, provided
however, (i) [**] divisions, which are not in substantially the same business as
[**], shall not be considered affiliates or subsidiaries of [**] for purposes of
this Section 4.1.1 and (ii) GoAmerica shall not be restricted from contacting or
soliciting any Browser Only Subscribers (as defined in Sales Agent Agreement)
that are transferred back to GoAmerica under Section 9.3 of the Sales Agent
Agreement; or
4.1.2 contact or solicit any employees or direct or indirect
distribution channels, strategic alliances or technical joint venturers or
similar business associates of, or vendors to, EarthLink (directly or
indirectly) for the purpose of causing, inviting or encouraging any such
employee or third party to alter or terminate his, her or its employment or
business relationship with EarthLink; or
4.1.3 willfully make any public statement or perform or do any other
act prejudicial or injurious to the reputation or goodwill of EarthLink or
otherwise interfere with the business of EarthLink or any of its affiliates; or
4.1.4 take any action that is primarily designed or intended to have
the effect of discouraging any Subscriber, lessor, licensor, customer, supplier,
or other business associate of GoAmerica from maintaining the same business
relations with EarthLink (or to another Person at the direction of EarthLink)
after the date hereof as it maintained with GoAmerica prior to the date hereof
with respect to the Transferred Assets; or
4.1.5 offer or solicit business relating to the Transferred Assets.
4.2 EarthLink. Except in the event (i) of any termination of this Agreement
by EarthLink (provided such termination may not be caused by the termination of
any of the Related Agreements by EarthLink for convenience), (ii) termination of
any of the Related Agreements by EarthLink due to an uncured material breach of
GoAmerica, or (iii) in the event GoAmerica terminates the Sales Agent Agreement
for convenience, for a period of [**] years after the Final Subscriber
Transition End Date, EarthLink shall not:
4.2.1 without GoAmerica's prior written consent, contact or solicit
any employees or direct or indirect distribution channels, strategic alliances
or technical joint venturers or similar business associates of, or vendors to,
GoAmerica (directly or indirectly) for the purpose of causing, inviting or
encouraging any such employee or third party to alter or terminate his, her or
its employment or business relationship with GoAmerica;
4.2.2 make any public statement or perform or do any other act
prejudicial or injurious to the reputation or goodwill of GoAmerica or otherwise
interfere with the business of GoAmerica or any of its affiliates; or
4.2.3 license or create alone or with [**], a browser substantially
the same as the Go.Web browser, provided however, this Section 4.2.3 will not
restrict EarthLink (i) from
CONFIDENTIAL 11 ACQUISITION AGREEMENT
including third party browsers in EarthLink's product offerings (e.g., the [**]
wireless platform product includes a third party browser) or (ii) in the event
GoAmerica does not support a platform or network.
5. CONFIDENTIALITY. Except as otherwise provided in this Agreement, GoAmerica
and EarthLink each agree that all information communicated to one by the other
or the other's affiliates, whether before or after the Effective Date, will be
received in strict confidence, will be used only for purposes of this Agreement
and will not be disclosed by the recipient party, its agents, subcontractors or
employees without the prior written consent of the other party. Each party
agrees to take all reasonable precautions to prevent the disclosure to outside
parties of such information, including, without limitation, the terms of this
Agreement, except as required by legal, accounting or regulatory requirements.
The provisions of this Section shall survive the expiration or termination of
this Agreement for any reason.
6. LIABILITY AND INDEMNIFICATION.
6.1 No Assumption of Liabilities. Except as expressly provided for in this
Agreement, EarthLink shall not be deemed to have assumed and shall not be liable
for, and GoAmerica shall retain and remain responsible for, all of GoAmerica's
and the Business's debts, liabilities and obligations of any nature whatsoever
including, without limitation, all prepaid accounts, all contracts, capital
leases, operating leases and Subscriber credits and/or refunds, whether accrued,
absolute or contingent, whether known or unknown, whether due or to become due
and whether related to the Transferred Assets or otherwise, and regardless of
when asserted.
6.2 Indemnification.
6.2.1 GoAmerica. GoAmerica agrees to indemnify and hold harmless
EarthLink, and each officer, director, and affiliate of EarthLink, including
without limitation any successor of EarthLink (collectively, the "EarthLink
Indemnified Parties") from and against any and all damages, losses, claims,
liabilities, demands, charges, suits, penalties, costs and expenses (including
court costs and reasonable attorneys' fees and expenses incurred in connection
with any litigation or proceeding) (collectively, the "EarthLink Indemnifiable
Costs"), which any of the EarthLink Indemnified Parties may sustain, or to which
any of the EarthLink Indemnified Parties may be subjected, arising out of (a)
any material misrepresentation, breach or default by GoAmerica of or under any
of the representations, covenants, agreements or other provisions of this
Agreement or any of the Related Agreements or document executed in connection
herewith; (b) any noncompliance with the provisions of any applicable bulk sales
law or regulation; or (c) GoAmerica's conduct of its business and/or the actions
and/or inactions of GoAmerica or its affiliates. Notwithstanding the foregoing,
EarthLink shall not seek indemnification from GoAmerica until and unless the
total of all EarthLink Indemnifiable Costs equal or exceeds $5,000 in the
aggregate, after which time GoAmerica shall be liable for all EarthLink
Indemnifiable Costs including the first $5,000 thereof.
6.2.2 EarthLink. EarthLink agrees to indemnify and hold harmless
GoAmerica, and each officer, director, and affiliate of GoAmerica, including
without limitation or any successor of GoAmerica (collectively, the "GoAmerica
Indemnified Parties") from and against
CONFIDENTIAL 12 ACQUISITION AGREEMENT
any and all damages, losses, claims, liabilities, demands, charges, suits,
penalties, costs and expenses (including court costs and reasonable attorneys'
fees and expenses incurred in connection with any litigation or proceeding)
(collectively, the "GoAmerica Indemnifiable Costs"), which any of the GoAmerica
Indemnified Parties may sustain, or to which any of the GoAmerica Indemnified
Parties may be subjected, arising out of (a) any material misrepresentation,
breach or default by EarthLink of or under any of the representations,
covenants, agreements or other provisions of this Agreement or any of the
Related Agreements or document executed in connection herewith; or (b) the
conduct of EarthLink's business as it directly relates to the transferred
Subscribers. Notwithstanding the foregoing, GoAmerica shall not seek
indemnification from EarthLink until and unless the total of all GoAmerica
Indemnifiable Costs equal or exceeds $5,000 in the aggregate, after which time
EarthLink shall be liable for all GoAmerica Indemnifiable Costs including the
first $5,000 thereof.
7. RIGHT OF FIRST REFUSAL.
7.1 At such time as GoAmerica commences bona fide discussions with another
entity, or group of related entities, to effect a Subject Transaction, GoAmerica
shall promptly notify EarthLink and shall continue to keep EarthLink reasonably
informed on a regular basis of the substance of the discussions, the progress
being made with respect to the transaction that is the subject of the
discussions, the material commercial terms of the subject transaction and other
such information reasonably related to the discussions (an "Offer Notice").
7.2 If GoAmerica receives an offer from a third party, whether that offer
was solicited by GoAmerica or not, and whether or not GoAmerica has provided a
notice pursuant to Section 7.1, then at such time, if any, as GoAmerica believes
that the transaction subject to the offer will become subject to a definitive
agreement within the next [**] ([**]) calendar days, GoAmerica shall immediately
deliver to EarthLink a written notice describing the form and structure of the
possible transaction and the then proposed terms and conditions (including
pricing information) for such transaction (also an "Offer Notice").
7.3 For [**] ([**]) business days following EarthLink's receipt of an Offer
Notice (the "EarthLink Offer Period"), GoAmerica may not enter into a definitive
agreement with respect to the Offer and must continue to provide information
required to be provided pursuant to Sections 7.1 and 7.2.
7.4 If EarthLink determines to make a counter-offer to the offer described
in the Offer Notice, EarthLink may do so prior to the end of the EarthLink Offer
Period, by notifying GoAmerica in writing of the terms and conditions of
EarthLink's counter offer (the "EarthLink Counter Offer"). GoAmerica shall cause
its Board of Directors promptly to convene for the purpose of determining
whether to accept or reject the EarthLink Counter Offer. If the GoAmerica Board
of Directors, in good faith and after consultation with its professional
financial advisors and outside legal counsel, determines that the EarthLink
Counter Offer is more favorable to GoAmerica or to its shareholders from a
financial perspective than the offer described in the Offer Notice, then
GoAmerica will accept the EarthLink Counter Offer and affirmatively reject the
third-party offer that is the subject of the Offer Notice, and shall also
immediately commence the diligent negotiation and preparation of definitive
documents for the
CONFIDENTIAL 13 ACQUISITION AGREEMENT
consummation of the EarthLink Counter Offer. If the GoAmerica Board of
Directors, in good faith and after consultation with its professional financial
advisors and outside legal counsel, determines that the EarthLink Counter Offer
is not more favorable to GoAmerica or to its shareholders from a financial
perspective than the offer described in the Offer Notice, then GoAmerica shall
have no further obligation to EarthLink with respect to this Section 7.
8. TERM AND TERMINATION.
8.1 Term. This Agreement shall continue until the last date of termination
or expiration of any of the other Related Agreements unless terminated in
accordance with Section 8.2 herein.
8.2 Termination. This Agreement may be terminated by either Party at any
time in the event of a material breach by the other Party of this Agreement that
remains uncured thirty (30) days after the breaching Party's receipt of written
notice of the breach. In addition, this Agreement may be immediately terminated
by EarthLink for cause, upon written notice to GoAmerica, upon the termination
of any of the other Related Agreements (i) by EarthLink due to an uncured
material breach by GoAmerica, (ii) by EarthLink upon the occurrence of a Release
Condition or (iii) by GoAmerica for convenience.
8.3 Effects of Expiration or Termination. Except as specifically provided
in Section 4 herein, upon the expiration or termination of this Agreement, all
rights and obligations of the parties under this Agreement shall terminate,
except the rights and obligations under Sections 2.1.4, 2.1.5, 2.1.6, 2.1.8,
2.1.11, 2.1.12, 2.1.14, 2.1.15, 2.1.16, 2.1.17, 2.2.1, 2.2.3, 2.3, 4, 5, 6, 8
and 9 herein shall survive expiration or termination of the Agreement. In
addition, EarthLink's rights and GoAmerica's obligations under Section 7 shall
continue for a period of one (1) year following the effective date of
termination, except in the event of a termination of this Agreement by GoAmerica
due to an uncured material breach by EarthLink; provided however, in the event
EarthLink terminates the Sales Agent Agreement for convenience Section 7 shall
terminate immediately upon the effective date of termination of such Sales Agent
Agreement. In addition, upon the termination of this Agreement, the Related
Agreements shall automatically and immediately terminate for cause.
9 GENERAL PROVISIONS.
9.1 Entire Agreement. This Agreement, any exhibits attached hereto and each
of the other Related Agreements, constitute the entire understanding and
agreement with respect to the subject matter hereof and thereof, and supersede
any and all prior understandings and agreements, whether oral or written,
between the parties relating to the subject matter hereof and thereof, all of
which are merged in this Agreement and the other Related Agreements. The
Agreement shall not be revised, amended, or in any way modified except in
writing executed by both parties.
9.2 Waivers. The waiver by any party of any of its rights or breaches of
the other party under this Agreement in a particular instance shall not be
construed as a waiver of the same or different rights or breaches in subsequent
instances. All remedies, rights, undertakings and
CONFIDENTIAL 14 ACQUISITION AGREEMENT
obligations hereunder shall be cumulative and none shall operate as a limitation
of any other remedy, right, undertaking or obligation thereof. No failure or
delay by any party in exercising any right, power or privilege hereunder (and no
course of dealing between or among any of the parties) shall operate as a waiver
of any such right, power or privilege.
9.3 Expenses. Each of the parties shall bear all costs, charges and
expenses incurred by such party in connection with this Agreement and the
consummation of the transactions contemplated herein, except as expressly
provided for in this Agreement.
9.4 Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of GoAmerica and EarthLink and each of their respective
heirs, representatives, successors, and permitted assigns, in accordance with
the terms hereof. This Agreement shall not be assignable by GoAmerica without
the prior written consent of EarthLink. This Agreement shall be assignable by
EarthLink to any of its affiliates without the prior written consent of
GoAmerica.
9.5 Governing Law. The laws of Delaware shall govern this Agreement without
giving effect to applicable conflict of laws provisions. The federal and state
courts located in Atlanta, Georgia alone have jurisdiction over all disputes
brought by GoAmerica arising out of or related to this Agreement. GoAmerica
consents to the personal jurisdiction of such courts sitting in Georgia with
respect to such matters, and waives GoAmerica's rights to removal or consent to
removal. The federal and state courts located in Newark, New Jersey alone have
jurisdiction over all disputes brought by EarthLink arising out of or related to
this Agreement. EarthLink consents to the personal jurisdiction of such courts
sitting in New Jersey with respect to such matters, and waives EarthLink's
rights to removal or consent to removal. In the event any litigation or other
proceeding is brought by either party in connection with this Agreement, the
prevailing party in such litigation or other proceeding shall be entitled to
recover from the other party all costs, reasonable attorneys' fees and other
reasonable expenses incurred by such prevailing party in such litigation.
9.6 Severability of Provisions. In the event that any provision of this
Agreement is found to be invalid or unenforceable pursuant to judicial decree or
decision, the remainder of this Agreement shall remain valid and enforceable
according to its terms.
9.7 Notices. All notices or other communications hereunder shall be in
writing and shall be delivered by hand, facsimile or sent, postage prepaid, by
registered or certified mail or reputable overnight courier service and shall be
deemed given when so delivered by hand or facsimile, or, if mailed, five days
after mailing (one business day in the case of overnight courier) addressed to
the intended recipient as set forth below:
CONFIDENTIAL 15 ACQUISITION AGREEMENT
If to GoAmerica: Xxxxx Xxxxxxxxx
Chairman and CEO
GoAmerica, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax (000) 000-0000
with a copy to: GoAmerica, Inc.
Attn: General Counsel
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax (000) 000-0000
If to EarthLink: Xxxxx Xxxx
Vice President
EarthLink, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax (000) 000-0000
with copies to: EarthLink, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Legal Department
Fax (000) 000-0000
and to Hunton & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx, XX
Bank xx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: W. Tinley Xxxxxxxx, III
Fax (000) 000-0000
[Signature Page Follows]
CONFIDENTIAL 16 ACQUISITION AGREEMENT
Each of the parties has executed this Agreement as of the Effective Date.
EarthLink, Inc.
By: /s/Xxxxx Xxxx
------------------------------------
Xxxxx Xxxx, Vice President
GoAmerica, Inc.
By:/s/Xxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: CEO
GoAmerica Communications Corporation
By:/s/Xxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: CEO
[Signature Page to EarthLink-GoAmerica Acquisition Agreement]
CONFIDENTIAL 17 ACQUISITION AGREEMENT
Exhibit A
TRANSFERRED ASSETS
A. Subscribers.
-----------------------------------------------------------------------------------------
Subscriber Category Number of Subscribers as Applicable Bounty per
of the Effective Date Qualified Subscriber
-----------------------------------------------------------------------------------------
CDPD - [**] [**] $[**]
-----------------------------------------------------------------------------------------
CDPD [**] [**] $[**]
([**] Subscribers)
-----------------------------------------------------------------------------------------
[**] - Email & Go.Web [**] $[**]
-----------------------------------------------------------------------------------------
[**] - Email Only [**] $[**]
-----------------------------------------------------------------------------------------
For purposes of EarthLink's evaluation of Subscribers and the transfer of
Subscribers to EarthLink's systems, EarthLink will separate the Subscribers into
6 sub-categories:
1. Roamers (roaming in the last 3 months)
2. High-usage subscribers
3. [**] laptop subscribers
4. Laptop subscribers
5. [**] subscribers
6. [**] subscribers
B. [**] Credit.
18
Exhibit B
FORM DATABASE
------------------------------------------------------------------------------------------------------------------------------
Record Types Field Required/Optional Notes
==============================================================================================================================
Subscriber Records Account ID Required This should be the value of the field which
identifies the subscriber record in the old
billing system. This will be used for
reference and investigative purposes.
----------------------------------------------------------------------------------------------------
First Name Required Subscribers first name
----------------------------------------------------------------------------------------------------
Middle Name Optional Subscribers middle name
----------------------------------------------------------------------------------------------------
Last Name Required Subscribers last name
----------------------------------------------------------------------------------------------------
Company Name Optional Subscribers company
----------------------------------------------------------------------------------------------------
Primary Phone Number Required Subscribers primary phone number. Area code,
prefix and suffix
----------------------------------------------------------------------------------------------------
Secondary Phone Number Optional Subscribers secondary phone number. Area
code, prefix and suffix
----------------------------------------------------------------------------------------------------
Fax Phone Number Optional Subscribers fax number. Area code, prefix
and suffix
----------------------------------------------------------------------------------------------------
Street Required Subscribers Street address
----------------------------------------------------------------------------------------------------
Apt Optional Subscribers suite/apt or further address
information
----------------------------------------------------------------------------------------------------
City Required Subscribers city
----------------------------------------------------------------------------------------------------
State Required Subscribers state
----------------------------------------------------------------------------------------------------
Zip Code Required Subscribers zip code
----------------------------------------------------------------------------------------------------
Email Address Required Subscribers E-mail address
----------------------------------------------------------------------------------------------------
Platform Optional Subscribers operating system. Default value
is "none". A list of values can be worked
out during the migration requirements.
----------------------------------------------------------------------------------------------------
Customer Status Optional Subscriber status. (Active, Inactive,
Rejected, Suspended, Withhold) Default will
be Active.
------------------------------------------------------------------------------------------------------------------------------
Billing Account Billing Account ID Required This should be the value of the field which
identifies the subscriber's billing account
record in the old billing system. This will
be used for reference and investigative
purposes and to link to the contract
information.
----------------------------------------------------------------------------------------------------
Can Pay For Others Optional Identifies whether this billing account can
pay for more than one subscriber. Default is
"No".
----------------------------------------------------------------------------------------------------
Termination Date Optional Date that the billing account was terminated.
----------------------------------------------------------------------------------------------------
Status Optional Billing account status (Active, Suspended,
Rejected, Withhold)
------------------------------------------------------------------------------------------------------------------------------
19
----------------------------------------------------------------------------------------------------
Billing Cycle Required Identifies the billing cycle that this
Billing Account is processed under. A list of
values can be worked out during the migration
requirements.
----------------------------------------------------------------------------------------------------
Billing Cycle Type Required Identifies whether this Billing Account is
processed monthly, quarterly, semi-annually
or annually.
----------------------------------------------------------------------------------------------------
Currency Optional Default is USD
----------------------------------------------------------------------------------------------------
Payment Method Required Identifies whether this Billing Account is to
be handled by as Credit Card or External
Billling.
----------------------------------------------------------------------------------------------------
Credit Card Number Required If the Payment Method is Credit Card, then a
valid credit card number must be supplied.
----------------------------------------------------------------------------------------------------
Expiration Date Required If the Payment Method is Credit Card, then a
valid expiration date for the credit card
must be supplied.
----------------------------------------------------------------------------------------------------
Name on Credit Card Required If the Payment Method is Credit Card, then
the name associated with the credit card must
be supplied.
----------------------------------------------------------------------------------------------------
Billing First Name Required If the Payment Method is External Billing,
then a Billing First Name must be supplied.
----------------------------------------------------------------------------------------------------
Billing Middle Name Optional If the Payment Method is External Billing,
then a Billing Middle Name may be supplied.
----------------------------------------------------------------------------------------------------
Billing Last Name Required If the Payment Method is External Billing,
then a Billing Last Name must be supplied.
----------------------------------------------------------------------------------------------------
Billing Company Name Optional If the Payment Method is External Billing,
then a Billing Company Name may be supplied.
------------------------------------------------------------------------------------------------------------------------------
Contract/Service Info Contract ID Required This should be the value of the field which
identifies the subscriber's contract account
record in the old billing system. This will
be used for reference and investigative
purposes.
----------------------------------------------------------------------------------------------------
Billing Account ID Required This should be the value of the field which
identifies the subscriber's billing account
record that is linked to this contract. This
will be used to tie the contract to the
billing account.
----------------------------------------------------------------------------------------------------
Begin Date Required Date the contract started
----------------------------------------------------------------------------------------------------
Package ID Required Identifies the service package which is
associated with this contract.
----------------------------------------------------------------------------------------------------
End Date Date the contract ended
----------------------------------------------------------------------------------------------------
Contract Status Optional Identifies the status of the contract.
(Active, Expired, Pending Approval,
Suspended, Rejected)
------------------------------------------------------------------------------------------------------------------------------
20
----------------------------------------------------------------------------------------------------
Product Required Identifies the service product which is
associated with this contract.
----------------------------------------------------------------------------------------------------
Primary Use Zip Required The primary use zip code
----------------------------------------------------------------------------------------------------
Network Required Identifies if CDPD or CDMA
----------------------------------------------------------------------------------------------------
EID Required EID
----------------------------------------------------------------------------------------------------
IP Address Required IP Address
----------------------------------------------------------------------------------------------------
Carrier Required Identifies the carrier of the wireless service
----------------------------------------------------------------------------------------------------
Side Preference Optional Modem side preference
----------------------------------------------------------------------------------------------------
PDA Type Required Type of PDA device. A list of values can be
worked out during the migration requirements.
----------------------------------------------------------------------------------------------------
Modem Model Optional Modem model
----------------------------------------------------------------------------------------------------
User ID Required User's userid
----------------------------------------------------------------------------------------------------
Password Required User's password
------------------------------------------------------------------------------------------------------------------------------
21
