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EXHIBIT 10(b)
EXHIBIT 2.4(a)(iii) TO STOCK PURCHASE AGREEMENT
Management Information Systems (MIS) Contract
This Management Information Systems (MIS) Contract ("Contract") is made
as of February 18th, 1999, by ARGENT CAPITAL CORPORATION, a Nevada corporation
(either "Argent" or "Client"), and OPTIMIZE, INC., an Alabama corporation
("Vendor").
RECITALS
Client desires support of Vendor for the Management of Information
Systems for the "NETVOUCHER" Product(s), Service(s), and Back Office Systems.
Client desires Vendor to be its Information Technology (IT) partner and thus
bestows upon Vendor the rights, privileges, and decision making authority of an
IT Officer for its corporation including the planning, design, development,
installation, support, and operation of software, systems, and related computer
services. Mutual concurrence shall be required with respect to acquisition of
capital items.
CONTRACT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For the purposes of this contract, the following terms have meaning
specified or referred to in this Section 1:
NetVoucher(sm) - an Internet e-Advertising(sm) system that is sold to
merchants for the purpose of advertising their local presence on the
Internet.
NetVoucher Plus(sm) - an advanced Internet software product that is
sold to members for the purpose of increased e-Advertising(sm) presence
on the Internet.
e-point$(sm) - an Internet software product that is sold to mall
merchants for the purpose of advertising their local presence on the
Internet and tracking customer sales for the purpose of rewarding their
loyalty.
e-Advertising(sm) - an Internet software advertising concept that is
sold to merchants for the purpose of advertising their local presence
on the Internet.
NetTrooper(sm) - an Internet software training product that is included
in the merchant kits for the purpose of educating their customers.
Go Local Not Global - an advertising strategy developed for
NetVoucher(sm) software product(s) and Service(s).
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Domain Name - the name reference for an Internet Web Address that are
registered through the Internic and owned by the registering party.
XxxXxxxxxx.xxx - the NetVoucher(sm) Domain name reference for the
production computer site that houses the merchants and vouchers and
members.
XxxXxxxxxx.xxx - a Domain name reference that could be used as a
competing Internet Web Site.
XxxXxxxxxx.xxx - a Domain name reference that could be used as a
competing Internet Web Site.
XxxXxxxxxx.xxx - a name reference that could be used as a competing
Internet Web Site.
Merchant Kit - a marketing aid produced to assist merchants in the
promotion of NetVoucher(sm) that includes member brochures, merchant
brochures, a rack, a window decal, a banner, a box, and NetTrooper(sm)
CD's.
CD - a Compact Disc (CD) used to store data or programs.
System - a program or process or combination of both for the purpose of
accomplishing a task or function in a structured and efficient manner.
Back Office - the processes that take place to support the sales and
marketing of product and services including payroll, order entry,
inventory, financial production, commission payments, shipping and
receiving, human resources, planning, project management, and other
related functions.
Invoice Default - the failure of the client to pay an invoice in the
allotted time period in full as described in conditions on the Invoice.
Interface - a connection between two or more software programs. The
connection can be in real time or batch.
E-Mail - the ability to sent correspondence across an Intranet or
Internet network from one party to one or more parties electronically.
E-Mail Address - the mailbox address of the recipient of correspondence
that is sent across an Intranet or Internet network from one party to
one or more parties electronically.
Spam - junk or unsolicited E-Mail.
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2. SUPPORT OF NETVOUCHER PRODUCT
2.1 PRODUCTS
Vendor has designed, applied for a servicemark and copyrighted its
Internet based software application under the servicemark (sm) name of
"NetVoucher", "NetVoucher Plus" and "e-point$", which are Internet
software products and services sold to Client by virtue of and in
connection with that certain Stock Purchase Agreement dated as of
March 12, 1999, and which are to be supported by Vendor.
2.2 PAYMENTS
Vendor shall support Client for a period of ten years from February 18,
1999 until February 18, 2009 for a support fee paid in two phases.
Phase one will be a ninety-day period beginning on February 18, 1999
and continuing until May 14, 1999. During this period, Client will pay
to Vendor all of Vendor's costs and expenses, including, but not
limited to, equipment, hardware and software purchases, labor, general
administrative and overhead, and otherwise, associated with
"NetVoucher" and the services to be performed by Vendor hereunder, plus
a thirty-five percent (35%) xxxx-up (the "Base Support Fee"). Phase two
will begin on May 15, 1999 and Client will pay to Vendor, on a monthly
basis, ten percent (10%) of the gross revenues derived by Argent (or
any of its subsidiaries or other affiliated companies) in connection
with the NetVoucher products and services, including, but not limited
to, initial sales, virtual web site fees, quick key, specialty and
banner ads, direct e-mail, recurring revenues relating to all of the
above, or otherwise. "Gross Revenues" as defined herein shall mean
revenues from any and all sources, without deduction for any cost or
expense for any reason whatsoever; provided, however, there shall be
allowed a deduction for any "gross revenue" taxes imposed on Argent by
any taxing authority prior to calculating such ten percent (10%). This
phase two payment schedule shall remain in effect through February 18,
2009. Regardless of whether or not this Agreement is terminated
subsequent to May 14, 2001 (per Section 8), and whether or not Vendor
continues to support Client thereafter, Client shall be unconditionally
obligated to continue to pay to Vendor ten percent (10%) of the "Gross
Revenues" derived by Argent (or any of its subsidiaries or other
affiliated companies) in connection with the NetVoucher products and
services.
2.3 MAINTENANCE
Vendor will support the NetVoucher(sm), NetVoucher Plus(sm), and
e-point$(sm) software products and services to the extent that they
perform as represented to merchants and members and repair, correct, or
change software as needed to perpetuate the products and services into
the future without major software or service re-write. NetVoucher(sm)
and NetVoucher Plus(sm) are completed and are functioning products and
services. e-point$(sm) is not completed and is in development now with
an estimated completion of May 30th, 1999.
Support of products and services are for existing features and do not
represent any enhancements or changes in the software. To the extent
that software programming is done to "fix", or repair, or make good the
existing products and services, Vendor will accommodate without
additional payment.
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2.4 NEW FEATURES
Vendor will work with Client to discover, design, develop, and program
new features and enhancements that relate to the products and services
of NetVoucher, Inc. These new features and enhancements will be charged
to NetVoucher, Inc. on a monthly basis plus thirty-five percent,
separately and in addition to the payment outlined in Section 2.2.
2.5 PRODUCT INTERFACE
Vendor will support the NetVoucher(sm), NetVoucher Plus(sm), and
e-point$(sm) software interface(s) to the extent that they perform as
represented to merchants and members and repair, correct, or change
software as needed to perpetuate the products and services into the
future without major software or service re-write.
The NetVoucher(sm), NetVoucher Plus(sm), and e-point$(sm) E-Mail
interface is in development and will be completed by March 31st, 1999.
The NetVoucher(sm) and NetVoucher Plus(sm) Proposal, Demonstration, and
Authorization System is completed and working as designed. This product
interfaces with the Financial Holding Database and the Web Content
Holding Database. It contains merchant Web site content and merchant
financial information that is staged onto these temporary databases to
be reviewed and approved by the Vendor.
The NetVoucher(sm) and NetVoucher Plus(sm) merchant Web site content
interface is complete and working as designed. This interface stages
merchant Web site content onto a temporary database to be reviewed and
approved by the Vendor.
The NetVoucher(sm) and NetVoucher Plus(sm) merchant Web site financial
interface is complete and working as designed. This interface stages
merchant Web financial content onto a temporary database to be reviewed
and approved by the Vendor.
The E-Mail mining software product, Extractor Pro, has been purchased.
This product allows Vendor to collect E-Mail addresses and to bulk mail
a promotional advertisement about NetVoucher(sm), NetVoucher Plus(sm),
and e-point$(sm). This promotional is a one time E-Mail to these
addresses in order to comply with the anti Spam laws of most states.
Prospective members will sign up manually and no interface is intended.
2.6 REPORTS
Reports will be available for merchants to review activity in their
site. Additional reports will be produced for internal review of the
performance of products and services.
Demographic information will be available in reports too. This
information will be merged with site analysis where applicable.
3. SUPPORT OF BACK OFFICE SOFTWARE PRODUCTS AND SERVICES
3.1 PRODUCTS
Vendor has designed or has in design, developed or has in development,
and programmed or has in programming software programs and interfaces
that support the Internet based
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software applications NetVoucher(sm), NetVoucher Plus(sm), and
e-point$(sm). Vendor has also purchased commercially sold software
products and services that support the Internet based software
applications NetVoucher(sm), NetVoucher Plus(sm), and e-point$(sm).
3.2 SUPPORT OF COMMERCIAL SOFTWARE
Vendor shall support Client for a period of ten years from February 18,
1999 until February 18, 2009. Any commercial software support fees will
be passed on to Client in addition to payment as described in Section
2.2 for the duration of the contract. The cost of any and all
commercial software will be passed on to Client in addition to payment
as described in Section 2.2 for the duration of the contract. Client
will be a third party beneficiary of any manufacturer warranties. These
products may or may not consist of the following commercial products;
Great Plains Dynamics CS+ SQL, 2021 Interactive Commission System,
Xxxxxxxxx.Xxx Bank and Credit Card Processing, Citrix MetaFrame,
Microsoft NT, HP-UX UNIX, and Microsoft Windows.
3.3 MAINTENANCE
In consideration of the payments outlined in Section 2.2. (and at no
additional charge to Argent), Vendor will support the commercial
software products and services to the extent that they perform as
represented by the manufacturer and to the extent that the manufacturer
will repair, correct, or change software as needed to perpetuate their
products and services into the future without major software or service
re-write.
3.4 NEW FEATURES
Vendor will work with Client to discover, design, develop, and program
new features and enhancements that relate to the products and services
that support the back office systems and processes of NetVoucher, Inc.
These new features and enhancements will be charged to Client on a
monthly basis plus thirty-five percent.
Support of products and services are for existing features and do not
represent any enhancements or changes in the software. To the extent
that software programming is done to "fix", or repair, or make good the
existing products and services, Vendor will accommodate without
additional payment.
3.5 COMMERCIAL PRODUCT INTERFACES
Vendor will support the commercial software interface(s) to the extent
that they perform as advertised and repair, correct, or change software
as needed to perpetuate the products and services into the future
without major software or service re-write.
Support of products and services are for existing features and do not
represent any enhancements or changes in the software. To the extent
that software programming is done to "fix", or repair, or make good the
existing products and services, Vendor will accommodate without
additional payment.
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Planned and under development back office interfaces are; 2021
Commission system to Dynamics Financials, Xxxxxxxxx.Xxx Bank and Credit
Card Processing System to Dynamics Financials, Financial Hold Database
to Dynamics Financials for Order Entry, Call Center Software to
Dynamics Financials, and Fulfillment Center Software to Dynamics
Financials.
3.6 SOFTWARE AND SYSTEM DELIVERY
The total integration of commercial software, Internet software
applications NetVoucher(sm), NetVoucher Plus(sm), and e-point$(sm),
product support software interfaces, and back office support interfaces
are expected to take a minimum of six months to complete. This will
affect sales of NetVoucher(sm), NetVoucher Plus(sm), and e-point$(sm)
in the back office, requiring the hiring of staff to perform manual
operations until these interfaces are completed. This should not affect
merchant sales of NetVoucher(sm), NetVoucher Plus(sm), and e-point$(sm)
or the signing up of members into the NetVoucher(sm), NetVoucher
Plus(sm), and e-point$(sm) database.
Each of these software products and interfaces must undergo rigorous
testing and performance evaluations prior to the production release.
Vendor will plan for the scheduled and timed introduction of each piece
of software as it relates to the most critical path of performance and
cost.
4. SUPPORT OF BACK OFFICE HARDWARE AND COMMUNICATIONS
4.1 SYSTEM
The system is a collection of computers, routers, Hub's cabling,
wiring, firmware, network operating systems (NOS), operating systems
(OS), application software, and communications access. It also includes
processes, interfaces, and procedures.
4.2 HARDWARE AND NOS
Vendor will purchase equipment considered necessary for housing,
storing, operating, and executing the commercial software, Internet
software applications NetVoucher(sm), NetVoucher Plus(sm), and
e-point$(sm), product support software interfaces, and back office
support interfaces. This will involve frequent monitoring to provide a
system that is tuned to perform at the optimum level for transaction
volumes incurred. Satisfactory transaction response is interpreted to
be what is acceptable in the industry based upon the technology that is
available at the time of equipment purchase and not what equipment is
available at the time of transaction measurement.
Vendor hardware purchases will include multiple hardware brand names
and will spread operating systems across two prevalent NOS and one
specialized NOS: Microsoft NT, HP-UX UNIX, and Citrix MetaFrame
respectively.
4.3 COMMUNICATIONS
Vendor has planned and designed a communications grid to support
multiple points of connectivity and requirements of access to the
system. This communications subsystem is described in the attached
Exhibit "A". The Internet access is depicted with T-3 redundant access.
This is the anticipated long term design configuration and may not be
physically
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installed until communications subsystem monitoring indicates a need
for additional capacity and redundancy.
4.4 SUPPORT OF THE SYSTEM
Vendor shall support Client for a period of ten years from February 18,
1999 until February 18, 2009. Any system purchases will be passed on to
Client in addition to payment as described in Section 2.2 for the
duration of the contract. The cost of any and all commercial
maintenance fees will be passed on to Client in addition to payment as
described in Section 2.2 for the duration of the contract. Regardless
of Vendor's support participation level subsequent to May 14, 2001,
Client shall remain responsible for the payment to Vendor of ten
percent (10%) of the "Gross Revenues" (as defined in Section 2.2.)
derived by Argent (or any of its subsidiaries or other affiliated
companies) in connection with the NetVoucher products and services for
the remainder of the entire ten (10) year period. Client acknowledges
this as being an integral component of the consideration being paid and
to be paid to Vendor in conjunction with the transfer of the
"NetVoucher" product to Client and Vendor's agreement to support same
until at least May 14, 2001.
5. SUPPORT OF NON-SYSTEM FUNCTIONS
5.1 FINANCIAL
Vendor will perform financial processing for NetVoucher, Inc. as part
of the payment plan as described in Section 2.2. Financial processing
will include payment of trade accounts, payment of commissions, cash
receipts processing, order processing, inventory management, fixed
asset management, and local regulatory compliance.
Vendor will assist Client in setting up financial processing that will
produce monthly Profit & Loss Statements, Balance Sheets, Cash Flows,
and Statements of Stockholders' Equity for Argent Capital and Argent
Financial as part of the payment plan as described in Section 2.2.
Consolidated Statements will be included.
5.2 CALL CENTER
Vendor will manage a call center as part of the support for product and
services. The Call Center will function on limited basis, 7:00 am till
7:00 pm, Central time, until such traffic volumes mandate an increase
in the hours of coverage. Payment for Call Center services will be in
the payment plan as described in Section 2.2.
5.3 FULFILMENT CENTER
Vendor will maintain fulfillment center management as part of the
support for product and services. The Fulfillment Center will function
to deliver merchant kits and stage computer packages for the sales
people. Payment for Call Center services will be in the payment plan as
described in Section 2.2. Each salesperson will be responsible for
purchasing their own computer package independent of Client or Vendor.
5.4 EMPLOYEES
Vendor will hire and train or outsource employees for Client in order
to service, maintain, and perform the system functions described
herein. Client, through Vendors management,
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will pay employees of NetVoucher, Inc. After the Phase I (initial
ninety (90) day period) is completed, Client shall be directly
responsible for payroll and other costs associated with such employees.
Vendor shall remain responsible for payroll and other costs associated
with management and software development (technical) personnel
necessary for Vendor to perform its services hereunder.
6. PART PERFORMANCE DOES NOT PRECLUDE LATER DEMAND FOR FULL PERFORMANCE
The failure of the parties to insist on full performance of any part of
this Agreement or the waiver by either party of any breach under this
Agreement shall not prevent a subsequent enforcement of such term nor
be deemed a waiver of any subsequent breach of said term, nor prevent
demand of full performance of said part of this Agreement from the
other party at a later date.
7. INDEMNIFICATION/DEFAULT
Client and Vendor agree to indemnify and hold each other harmless with
respect to any claim, loss, liability, damage or judgment suffered by
them, including attorneys fees and court costs, or costs of Alternative
Dispute Resolution, which results from any action or inaction by the
other in contravention hereof, or as a result of the manner in which
the other performs its duties hereunder (a "Default").
In the event of any litigation against Vendor or Client by any
regulatory agency or any other other proceedings challenging any
product or service or advertising prepared on behalf of Vendor, the
parties agree to cooperate and assist each other in the preparation of
the defense.
8. TERMINATION
Either party, from February 18, 1999 to May 14, 2001, may terminate
this Agreement only upon the Default of the other party; provided,
however, any alleged Default shall be specified in writing, and sent to
the other party, which shall have thirty (30) days within which to cure
such Default. After May 14, 2001, either party may terminate this
Agreement, with or without cause, upon thirty (30) days written notice
to the other party. In the event of termination, Client shall remain
unconditionally obligated to pay to Vendor the ten percent (10%) of
Gross Revenues referenced in Section 2.2, through February 18, 2009.
9. ARBITRATION
Any controversy or claims arising out of this Agreement shall be
settled by binding arbitration in Jefferson County, Alabama, in
accordance with such private arbitration or alternative dispute
resolution rules as the parties may agree or in the absence of such
agreement, the Commercial Arbitration Rules of the American Arbitration
Association as in effect on the date of delivery of the demand for
arbitration. The arbitration of issues as provided herein, including
the determination of damages, if any, shall be the exclusive method of
dispute resolution and the decision of the majority of arbitrators
shall be conclusive and final. Unless other wise agreed, there shall be
three arbitrators, one chosen by Buyer, one by the majority in interest
of the Sellers, and a third by the two arbitrators so chosen. The cost
of the arbitration shall be borne equally by Buyer, on one hand, and
the Sellers, on the other, with the cost to be borne
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by Sellers to be allocated pro-rata among them in accordance with
Disclosure Schedule 2.1. Buyer shall not absorb any part of such cost
not duly paid by the Sellers.
10. NOTICE
Any notice required by this Agreement or given in connection with it,
shall be in writing and shall be given to the appropriate party by
personal delivery or by authorized mail; postage prepaid, or recognized
overnight delivery services.
If to CLIENT
Attention: Xxxxx Xxxxxx, President
Argent Capital Corporation
0000 Xxxx Xxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
If to VENDOR
Attention: Xxxxx X. Xxxxxxxx XX, President
OPTIMIZE, INC.
Xxx Xxxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
11. HEADINGS
Headings used in this Agreement are provided for convenience only and
shall not be used to construe meaning or intent.
12. ENTIRE UNDERSTANDING/BINDING EFFECT
This Agreement supersedes all previous Agreements by and between the
parties with respect to its subject matter, and contains the complete
and entire Agreement and understanding between the parties and no
representations, inducements, promises or Agreements, written or oral,
not embodied herein, with respect to its subject matter, shall be of
any force or effect between the parties.
Should any part of this Agreement, for any reason, be declared invalid,
such invalidity shall not affect the validity of any remaining portion
hereof, and the remaining portion hereof shall remain in force and
effect as if this Agreement had been executed with the invalid portion
thereof eliminated, and it is hereby declared the intention of the
parties hereto that they would have executed the remaining portion of
the Agreement without including therein any such part, parts or portion
which may for any reason be hereafter declared invalid.
This Agreement shall be assignable only with the written consent of the
other party. Subject to the foregoing, this Agreement will be binding
upon and inure to the benefit of the parties hereto, their successors
in interest (whether by merger, consolidation, sale, or otherwise) and
assigns.
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13. CHOICE OF LAW
This Agreement, when duly executed by and between the parties, becomes
effective as of the day and year first set forth above, and shall be
construed and enforced in accordance with the laws of the State of
Alabama. In the event it becomes necessary for Vendor to institute any
action at law, in equity, or in arbitration against Client to secure or
to protect its rights under this Agreement, or because of Client's
breach hereof, Vendor shall be entitled to recover not only its damages
incurred, but also attorneys fees, together with such court costs and
other expenses it incurs.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written.
VENDOR (OPTIMIZE, INC.)
By: XXXXX X. XXXXXXXX XX
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ITS President and CEO
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Authorized Officer
CLIENT (ARGENT CAPITAL CORPORATION)
By: XXXXXXXXXXX X. XXXXXX
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ITS: President and CEO
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Authorized Officer
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