EXHIBIT 2.6
TEAMING AGREEMENT
This TEAMING AGREEMENT (hereinafter "Agreement") is made as of this 7th day of
July, 1999 between 000X.XXX, CO., a Florida Corporation, (hereinafter "186K"),
and Able Telecom Holding Corp., Inc., a Florida Corporation, (hereinafter
"Able").
WHEREAS, Able designs, sells, installs and maintains products and services to
customers in the telecommunications industry (hereinafter, "Able Services"); and
WHEREAS, 186K offers data and communications facilities consulting services,
Internet consulting services, systems integration consulting services, Internet
hosting and related services, Microsoft products and solutions, and general
product management services (hereinafter, "186K Services"), which may be used by
Able's customers in connection with Able Services; and
WHEREAS, the above identified parties, because of their unique and complementary
capabilities, have determined that they would benefit from a teaming agreement
in order to develop the best approach to a proposal or proposals in response to
the perceived needs of a customer or in response to a request for proposal.
NOW, THEREFORE, in consideration of the mutual promises herein and other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Parties agree as follows:
ARTICLE I
GENERAL AGREEMENT
1.1 Able and 186K agree to cooperatively market and sell those services
listed in Attachments A and B, including, without limitation, "City
Wide Networks" and related Able and 186K Services, as deemed
appropriate to specific customers as listed in Attachment C (hereafter
"Identified Customers"). The Parties agree to meet jointly with
Identified Customers to discuss the customers' needs for Able and 186K
Services (collectively, "Services"). Further, the parties agree to work
together to prepare proposals and to sell or provide Services to the
Identified Customers. If joint meetings are not feasible, Able or 186K
will fully brief the other party on the discussions held with
Identified Customers either during an ad hoc conference (which may be
by conference call) or in regularly scheduled meetings established by
the Parties. Further, 186K agrees to enter into a sub-license agreement
with Able with regard to Wavelet-based technology.
1.2 The cooperative marketing of Services will include actions and
activities described in Attachment D - Responsibilities and Areas of
Cooperation. These include roles and responsibilities of the parties,
contact with the customer, preparation of bids and proposals, marketing
and sales activities and customer support.
1.3 Each Party will be solely responsible for pricing of their respective
Services. Current list prices and discount schedules for the Able
Services are set forth in Attachment A and for the 186K Services in
Attachment B. These prices and discount schedules are provided
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for informational purposes only and are subject to revision at any
time. Any change in Service features or pricing will be communicated in
writing to the other Party as soon as practical, and Attachments A and
B will be amended accordingly.
1.4 Each party agrees that all prices, terms, warranties and benefits shall
be no less favorable to the other Party than those offered to any other
customer purchasing like quantities, regardless of whether priced as an
entire system or as an individual component of a system.
1.5 Additionally, Able and 186K shall work as strategic business partners
to determine the need for enhancements to the Services and "City Wide
Network" products and to define new "City Wide Network" products that
would be added to the list of Services in Attachments A and B.
1.6 Each Party will furnish the other with the cooperation and assistance
reasonably required, however: each Party, in all instances, will act as
an independent contractor in the performance of this Agreement. Neither
Party shall act as, or be deemed to be, agent for the other Party for
any purpose. Nothing in this Agreement shall be construed to grant
either 186K or Able the right to make commitments of any kind for or on
behalf of the other Party without the prior written consent of the
other Party.
1.7 Each Party will, whenever and wherever possible, make every reasonable
effort to allow the other Party the right of first refusal to
participate at the appropriate stage and level of pending business. In
all cases of wavelet-based technology deployment and "City Wide
Networks" projects the Parties will offer the right of first refusal to
participate, for the products and services contained in this agreement,
to each other.
1.8 Any news release, public announcement, advertisement or publicity
released by either Party concerning this Agreement, any proposals, or
any resulting contracts or subcontracts to be carried out hereunder
will be subject to prior approval of the other Party and where
reasonably practicable the Identified Customer, except that this
Agreement and the terms thereof may be made known to an Identified
Customer. Any such publicity shall give due credit to the contribution
of each Party.
1.9 All Services will be distributed under the logos and trademarks of the
providing Party. During the term of this Agreement, the Parties may
agree to joint use of logos and trademarks, trade names, and other
designations in connection with joint efforts, presentations, trade
show presence, advertisement and promotions of the Services: However,
notwithstanding the foregoing, neither party is granting a license for
the use of their respective Marks in any manner that is not a joint
presentation
1.10 Upon expiration or termination of this Agreement, both Parties will
immediately cease use of all logos and trademarks of the other party
(hereinafter "Marks" ) and neither will thereafter use, advertise or
display the Marks of the other Party, nor any Xxxx that is similar to
or confusing with any Xxxx associated with the other Party or the other
Party's Services.
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1.11 Either Party may, as required by applicable law and stock exchange or
stock association rules, make disclosures or announcements related to
this Agreement at any time, so long as the Party required to make such
announcement promptly notifies the other Party of such requirement and,
after learning of such requirement, discusses in good faith the exact
wording of such announcement.
ARTICLE II
PAYMENTS
2.1 As an advance to help fund 186K's efforts hereunder, Able shall make
the following payments to 186K: Twenty-Five Thousand Dollars ($25,000)
upon execution of this Agreement, Twenty-Five Thousand Dollars
($25,000) within seven (7) days from the date of this Agreement
Twenty-Five Thousand Dollars (U.S. $25,000) within fourteen (14) days
of the date of this Agreement, and Twenty-Five Thousand Dollars (US
$25,000) within Twenty-One (21) days of the this Agreement (the
"Advance"). Said Advance is to be considered a loan if not repaid under
the provisions of paragraph 2.2 below. If repayment is not complete
within 13 months of the date of the final advance, then Able will have
the option of converting the remaining loan balance into equity at the
then current valuation of 000X.Xxx,Co.
2.2 Except as expressly provided in this Section 2.2, each party shall be
entitled to receive all revenues generated from sales of its own
product. Without limiting the generality of the foregoing, 186K shall
pay Able fifty percent (50%) of the first revenues from customers
procured for "City Wide Network" products or other sources of revenue
generated from the implementation of this agreement until Able has
received repayment of the Advance.
2.3 Thereafter, 186K shall pay to Able commission payments based upon 3
percent of its gross revenues generated by "City Wide Network"
customers or other business generated by customers contracted by Able
and Able shall pay to 186K commission payments based upon 1.5 percent
of its gross revenues generated by "City Wide Network" customers or
other business generated by customers contracted by 186K.
2.4 Each Party shall grant to the other party a deferred value added share
stock option (the "Deferred Value Added Equity Swap"). The Deferred
Value Added Equity Swap shall not be transferrable except to affiliates
of either Party, and shall become exercisable one (1) year from the
date of this Agreement upon six months notice for a three year period
or immediately upon the sale, lease, or pledge of substantially all of
the granting Party's assets other than in the ordinary course of
business.
2.5 Either Party may exercise its Deferred Value Added Equity Swap by
providing the other Party with written notice pursuant to Section 4.2
hereof (the "Exercise Notice"). The Deferred Value Added Equity Swap
shall be paid in shares of common stock to the exercising party within
fifteen (15) days of the determination of its Fair Market Value
pursuant to Section 2.7 hereof.
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2.6 The value of the amount of Able stock 186K shall receive pursuant to
the Deferred Value Added Equity Swap shall be determined by taking ten
percent (10%) of the Fair Market Value (as defined in Section 2.8) as
it applies to Able on the date of execution of this agreement and
comparing it to the Fair Market Value (as defined in Section 2.8) of
Able on the date of exercise. The increase in the Fair Market Value of
Able, if any, will then be compared to the increase of the Fair Market
Value of 186K (as described in Section 2.7) and the lower of the two
will be the "Deferred Value." The "Deferred Value" will be divided by
the moving average of the stock price of Able for the ten (10) business
days immediately prior to the valuation date (as described in Section
2.8) to determine the number of shares to be issued.
2.7 The value of the amount of 186K stock Able shall receive pursuant to
the Deferred Value Added Equity Swap shall be determined by taking ten
percent (10%) the Fair Market Value (as defined in Section 2.8) as it
applies to 186K on the date of execution of this agreement and
comparing it to the Fair Market Value (as defined in Section 2.8) of
186K on the date of exercise. The increase in the Fair Market Value of
186K, if any, will then be compared to the increase of the Fair Market
Value of Able and the lower of the two will be the "Deferred Value."
The Fair Market Value of 186K at the Valuation Date will then be
divided by the total outstanding shares of 186K to determine a per
share value. This per share value will be divided in to the "Deferred
Value" to determine the number of shares of 186K to be issued to Able.
In no event shall ten percent (10%) of the current Fair Market Value of
186K at the date of execution be valued at less than two million five
hundred thousand Dollars ($2,500,000.00). See attachment J for
examples.
2.8 If the common stock of any Party is publicly traded, "Fair Market
Value" shall mean the market capitalization of such Party determined by
the moving average of the market price for such Party's common stock,
as quoted on the New York Stock Exchange, NASDAQ Exchange, OTC Bulletin
Board or similar exchange for the ten (10) business days immediately
prior to the Valuation Date multiplied by the number of shares of its
common stock issued and outstanding on the variation date. If the
common stock of any Party is not publicly traded, "Fair Market Value"
shall be determined by the following method: Xxxxxxx Xxxxx &
Associates, Inc. (or a similar mutually agreed upon financial
institution) shall be the agreed upon appraiser; and the appraiser
shall determine the Fair Market Value as of the Valuation Date of ten
percent (10%) of the issued and outstanding shares of common stock of
the Parties as the deferred Value Added Equity Swap will be limited to
the lesser of the appreciation amounts.
ARTICLE III
RELATIONSHIP OF THE PARTIES
3.1 Each Party shall designate, in writing, one or more individuals within
its own organization to act as its representative(s), responsible to
direct performance of that Party's functions pursuant to this
Agreement. Each of the Parties agrees to identify a primary point of
contact for the transfer of marketing information, management of bids
and proposals, providing sales support and supporting resolution of
customer problems.
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When a potential customer for Services is identified by one Party, the
primary points of contact will coordinate the efforts and joint sales
calls of both Parties.
3.2 Meetings will be held on a schedule mutually agreeable to the Parties
where the Parties will review outstanding sales proposals and market
developments, further define customer needs, identify potential future
customers, or discuss other such items as either Party may wish to
discuss, consistent with the terms of this Agreement. These meetings
will be held at times and places that will not unduly disadvantage
either Party.
3.3 Both Parties agree that, when a specific customer and project is
identified to be addressed under this Agreement, one of the Parties
will take the lead as prime contractor and the other Party becomes a
subcontractor. The responsibilities of the Parties as either prime and
subcontractor are defined in Attachment D.
3.4 Each Party shall designate a sufficient number of employees who shall
be available, with reasonable notice, for joint meetings with
Identified Customers, proposal preparation, and participation in
discussions or negotiations, as deemed appropriate under this
agreement.
3.5 The standard terms and conditions for the sale of Able and 186K
Services are listed in Attachment G and H, respectively, for
informational purposes. These standard terms and conditions are subject
to modification for a given project, by mutual agreement. Requests for
modifications to the standard terms and conditions for a specific
project must be made at the time of the request for pricing, with such
modifications to be included in amended Attachment C - List of
Identified Customers and Projects. Delivery of standard Services
scheduled under this Agreement may be deferred or canceled, for any
given project, subject to the provisions and charges specified in
Attachments G and H.
3.6 The Parties may also team together to demonstrate their Services at
mutually agreed-upon trade shows, user group meetings and other
appropriate conferences and seminars. Each Party will be responsible
for the sale of its Services, including pricing, ordering, post-sales
support and warranty. However, it is the intent of both companies to
provide the customer with a quality solution and comprehensive customer
support.
3.7 In the event that 186K and Able decide to work together on new product
or Service development, the roles and responsibilities of the Parties
with regard to such product or Service development and migration paths
will be agreed to in a Statement of Joint Research and Development
Effort (hereafter "R&D effort") which, when completed, will be
incorporated hereto as Attachment I. This statement will define the
roles and responsibilities of the Partners with respect to the R&D
effort, provide a schedule for the developments and specify ownership
of intellectual property rights.
3.8 Any exchange of data or other confidential or proprietary information
and/or the disclosure of intellectual property related to any R&D
effort is to be governed by the rules established in Attachment F -
Intellectual Property which shall be executed by authorized
representatives of both 186K and Able.
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ARTICLE IV
OTHER TERMS AND CONDITIONS
4.1 This Agreement shall commence on the date this instrument is fully
executed and remain in force for three years from the effective date
set forth above, and shall automatically renew for additional one year
terms until terminated by either Party. Such termination shall be
effective after the Party seeking to terminate provides one hundred
eighty (180) days written notice to the other Party. Each Party shall
be responsible for completing any orders accepted prior to such
termination.
4.2 All notices, certificates, acknowledgments and other reports hereunder,
shall be in writing and shall be deemed properly delivered when mailed
by registered letter to the other Party at its address as follows or to
such other address as either Party may, by written notice, designate to
the other:
(a) If to 186K:
186K
T Xxx Xxxxxxx, C.E.O.
000X.Xxx, Co.
0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
(000) 000-0000
(000) 000-0000 (telefax)
xxxxxxxx@000x.xxx (e-mail)
Copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx, P.A.
000 X. Xxxxxxx Xxxx., 00xx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
(000) 000-0000
(000) 000-0000 (telefax)
(b) To Able Telecom Holding Xxxx.Xxx.
0000 Xxxxx Xxxxx
Xxxx Xxxx Xxxxx, XX 00000
Copy to:
____________________________
____________________________
4.3 This Agreement shall not be amended or modified, nor shall any waiver
or any right hereunder be effective unless set forth in a document
executed by duly authorized representatives of both 186K and Able. The
failure of any Party to enforce any term of this agreement which is
breeched by the other Party shall not be deemed to be a waiver of
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such term, covenant or condition or any subsequent breach of the same
or any other term, covenant or condition herein contained.
4.4 This Agreement may not be assigned or otherwise transferred by either
Party, in whole or in part, without the express prior written consent
of the other Party. The foregoing shall not apply in the event that
either Party shall change its name or merge with another corporation.
4.5 Each Party shall indemnify the other for damages incurred as a result
of, or arising out of that Party's acts or omissions in carrying out or
failing to carry out this Agreement.
4.6 Except to the extent that damages arise from the breach of this
Agreement, any costs or expenses incurred by either Party in connection
with this Agreement, or its implementation, shall be borne by each
Party separately and individually, and neither Party shall be liable or
obligated to the other for any such cost or expense.
4.7 Notwithstanding any other provision of this Agreement, neither Party
shall be liable for any incidental, indirect, special or consequential
damages incurred by the other Party, including the loss of revenues or
profits, that arises out of or in connection with this Agreement,
regardless of whether such damages result from an action or breach of
contract, tort or strict liability, and regardless of whether such
damages were foreseeable.
4.8 Either Party may at any time make announcements required by applicable
law and stock exchange or stock association rules so long as the Party
required to make such announcement, promptly after learning of such
requirement, notifies the other Party of such requirement and discusses
in good faith the exact wording of any such announcement.
4.9 Should a dispute arise between the Parties' personnel working on a
proposal, every effort will be made to resolve the dispute by the same
personnel. When such resolution cannot be achieved, the dispute will be
referred to the next level manager. If these managers cannot achieve
resolution, the parties agree that they will seek a customer
representative associated with the project to decide the dispute.
4.10 This Agreement shall be governed and construed under the laws of the
state of Florida.
4.11 If any part, term or provision of this Agreement shall be held void,
illegal, unenforceable, or in conflict with any law of a federal, state
or local government having jurisdiction over this Agreement, the
validity of the remaining portions or provisions shall not be affected
thereby and the Parties will immediately begin negotiations for a
replacement for such part, term or provision.
4.12 This Agreement contains all the agreements, representations and
understandings of the Parties hereto and supersedes and replaces any
and all previous understandings, proposals, commitments or agreements,
oral or written, related to a teaming agreement
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for proposals or contracts for the sale or provision of Services to
Identified Customers prior to the establishment of this Teaming
Agreement between the Parties.
4.13 Any dispute which would be actionable in a court of law or equity with
proper jurisdiction relating to or arising from the terms,
interpretation or performance of this agreement (other than claims for
preliminary injunctive relief or other prejudgement remedies) will be
resolved at the request of either party through binding arbitration.
Arbitration shall be conducted in Palm Beach County, FL under the rules
and procedures of the American Arbitration Association (AAA) in
accordance with Commercial Arbitration Rules. The parties shall require
that the AAA appoint a panel of three arbitrators and, if feasible,
include one arbitrator who possesses knowledge of the subject matter of
this agreement; however, the arbitration shall proceed even if the
person is unavailable. The arbitration shall proceed to award even if
one party fails to participate. The prevailing party shall be entitled
to recover all reasonable costs and attorney fees. The award shall be
the exclusive remedy of the parties and shall be enforceable in any
court of competent jurisdiction.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date
herein indicated.
Able Telecom Holding Corp., Inc. 000X.Xxx Co.
By: /S/ XXXXX X. XXX, XX. By: /S/ T. XXX XXXXXXX
--------------------- ------------------
Name: Xxxxx X. Xxx, Xx. Name: T. Xxx Xxxxxxx
Title: CEO & President Title: CEO
Date: 7-7-99 Date: 7-7-99
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ATTACHMENT A
ABLE PRODUCTS AND PRICES
Bid Price To Be Determined By Market:
Smart Cities
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ATTACHMENT B
186K PRODUCTS AND PRICES
Shared -
Shared servers are divided into three groups providing the customer reliability
and the ability to choose commerce functionality, database requirements,
features, memberships, personalization, and the amount of customers per server.
Server limitation will range from 175 to 10 users per server. Monthly fee range
is from $24.95 to $1,500.00.
Dedicated -
Dedicated Servers will provide customers with specialized offerings similar to
the shared servers with added benefits of dedicated bandwidth, commerce and
higher reliability requirements.
Clustered -
The company offers a range of clustered hosting solutions for customers with
applications that require high application availability or high traffic
performance. 186K's clustered solutions are based on industry leading hardware
and software from Compaq, Cisco and Fore Systems and are complimented with
186K's managed services and high performance content delivery.
Co-location Services -
Co-location provides businesses the opportunity to locate their services at the
000X.XXX facility with the benefits of security, management and atmosphere
control. This service is the most efficient and fastest connectivity to the
Internet. It also allows businesses to lease equipment and consequently enter
the market at a lower cost. Carriers do not allow co-location options to any
business without the technical staff and financial backing to support their
location. This service, levels the playing field so that small businesses can
compete with larger companies. Monthly fees start at $250.00 per month to
$850.00 per month for a full rack. Leasing cost is dependent on equipment.
Application Outsourcing -
At this time, The Company has identified one product and will begin deploying to
software companies in the rental applications market. The company anticipates
opportunities with Microsoft's Back Office and Windows 2000 to enhance this
service.
Microsoft Commercial Internet System (MCIS)
Web Development
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ATTACHMENT C
LIST OF IDENTIFIED CUSTOMERS AND PROJECTS
Note: This attachment is to be amended to identify any new customers and to
define their specific projects that will be addressed jointly under
this agreement. Information to be included: Customer, project, and any
special or unique terms and conditions for a given project.
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ATTACHMENT D
RESPONSIBILITIES AND AREAS OF COOPERATION
1. It shall be the responsibility of both Parties to:
a. maintain interoperability of the Services;
b. distribute a letter to sales teams outlining the nature of the
co-marketing agreement, and to provide Product, application
and sales information that positions the Capabilities and
Services;
c. provide a list of contacts for sales activity, as well as
information on marketing, pricing and other available sales
support activities;
d. identify customers to be addressed jointly, and to agree which
Party will be the prime and which will be the subcontractor on
a given project;
e. employ a sufficient number of experienced sales and technical
personnel to respond in a prompt and professional manner to
all requests for customer presentations, to perform the
product planning, marketing, business product management and
development efforts necessary to carry out its
responsibilities under this Agreement;
f. make available a sufficient number of employees who have the
requisite skills and knowledge provide an appropriate supply
of glossy sales literature, PowerPoint files, etc. for use by
the partner company, and to establish procedures for
replenishing supplies;
g. develop processes and channels for notifying sales force of
new features, enhancements, price changes, etc.;
h. the shares information and jointly develop all RFPs, RFQs and
RFIs associated with "City Wide Network" products and
applications;
i. share information on the credit rating of an identified
customer;
j. after the Parties have submitted a proposal to an Identified
Customer for a particular project, neither Party shall submit
other competing bids on the same project, without alerting the
other Party early in the bidding process, nor communicate any
additional or different price information to the Identified
Customer without informing the other;
k. share feedback from the customer regarding submitted
proposals;
l. when a contract is awarded to the prime contractor,
immediately commence good faith negotiation of a subcontract
subject to the requirements of the contract with the customer,
applicable laws and regulations, and consistent with the terms
of this Agreement;
m. provide technical support for the Parties' own hardware and
software, as required by either the contract with the
Identified Customer, and consistent with the established
support policies of each of the Parties or as defined jointly
by the Parties on a project by project basis and incorporated,
by amendment to Attachment C - List of Identified Customers
and Projects.
2. Further, it shall be the responsibility of the prime contractor to:
a. amend Attachment C - List of Identified Customers and Projects
to reflect the addition of a new Identified Customer and
define the specific project;
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b. manage all contacts with the Identified Customer with respect
to joint proposals or the sale of Services;
c. negotiate any contracts with the Identified Customers;
d. provide the subcontractor with all information concerning
major discussions, negotiations and changes in the Identified
Customer's requirements that are pertinent to the
subcontractor's portion of the proposal to an Identified
Customer;
e. reserve the right to withhold what it considers sensitive
material from subcontractor which is not directly related to
subcontractor's Services;
f. use its best efforts to persuade the Identified Customer to
provide the subcontractor with an opportunity to be present at
contract negotiation meetings which may concern the
subcontractor's portion of the proposal;
g. prepare and present proposals to the Customer, with support
from the subcontractor, as appropriate;
h. include the subcontractor's price and other data and
information in its proposal, and to coordinate with the
subcontractor in drafting the portion of the proposal relating
to the subcontractor's Services and activities under the
proposal;
i. adjust any price within the price range provided by the
subcontractor without specific approval of the subcontractor;
j determine the final contents of the proposal to be submitted
to an Identified Customer subject to the provisions of this
Agreement, but agrees to review, with subcontractor prior to
the submission of proposal, all matters, including price and
the portion of the proposal to be performed by the
subcontractor;
k. ensure that any Proprietary Information and other Intellectual
Property contained in the final proposal will be included in
compliance with the conditions provided in Attachment F;
l. be solely responsible for any changes to the subcontractor's
portion of the proposal which are made without the
subcontractor's concurrence;
m. reserve the right to not bid the subcontractor's Services if
the subcontractor is unwilling or unable to provide the
Services or related support;
n. transmit to the subcontractor a copy of the final proposal
submitted to the Customer at the time of submission;
o. advise the subcontractor of the estimated probability of a
contract award; and
p. to use its best efforts to secure approval of the subcontract
by an Identified Customer, in the event such approval is
necessary.
3. In addition, it shall be the responsibility of the subcontractor to:
a. attend bidders' conferences with the prime contractor, as
deemed necessary by mutual agreement of the Parties;
b. accept referrals made by the prime contractor and confirm
acceptance of the referral to the prime contractor within five
(5) business days;
c. provide access to and assistance in using the subcontractor's
demonstration sites for customer presentations, on a mutually
agreed schedule;
d. prepare the initial version of its portion of a proposal that
includes the subcontractor's equipment or services;
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e. provide such other assistance as the prime contractor may
reasonably request in preparation of the proposal, including
but not limited to, system engineering related to the design
of a specific system solution for the Identified Customer;
f. review and approve, in a timely manner, any contractual terms
and conditions that affect subcontractor's portion of the
proposal;
g. contact the Identified Customer directly only with the full
knowledge and prior concurrence of the prime contractor;
h. upon contract award, negotiate a subcontract, in good faith,
that includes, among other appropriate provisions, those terms
and conditions that the subcontractor agreed to at the time of
the proposal or thereafter, the specific Services to be
provided and work to be performed by the subcontractor;
i. execute sales and, when applicable, maintenance and other
support agreements directly with the Identified Customer for
each successful sale of the subcontractor's Services in
accordance with then current standard agreements or specific
agreements made pursuant to the specific project;
j. ship such hardware or software to be sold or licensed, as
appropriate, to the Identified Customer, and in the case of
software, provide the license for such software to the
Identified Customer;
k. provide all resources required for installation, including
project management, technical support, warranty service and
post-warranty maintenance service for the subcontractor's
Services in accordance with the subcontractor's then-current
standard agreements or specific agreements made pursuant to
the specific project;
l. provide sufficient training to the prime contractor's support
resources, should the prime contractor be requested to provide
support for the subcontractor's Services in certain customer
projects;
m. to sell or license to the prime contractor, as appropriate,
its hardware, software, or services included in a proposal to
a Customer, according to the terms agreed to by the Parties in
the joint proposal or thereafter;
n. to maintain such drawings, documentation, source code and
tools as reasonably deemed necessary to support or maintain
the subcontractor's hardware or software;
o. to perform in accordance with the subcontract and this
Agreement, and if the subcontractor is unwilling or unable to
provide support or maintain its hardware or software for any
period under the terms of the subcontract, to license, without
cost to the prime contractor, any drawings, documentation,
source code and tools that will enable the prime contractor,
or a third Party, to provide the requisite support or
maintenance services to Identified Customers, with the terms
of such license to be incorporated in revisions to the
subcontract;
p. provide the prime contractor with all reports required by this
Agreement and perform all other obligations required of the
subcontractor by this Agreement.
4. Other areas of cooperation that may be implemented, on a best effort
basis by the Parties, to support this Teaming Agreement include, but
are not limited to the following:
a. Trade Shows & Conferences:
(i) Identify mutual interest in trade shows/conferences
and devise ways to leverage demonstrations, presence
& footprint(s);
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(ii) Team together to jointly demonstrate the Capabilities
and the Offer at mutually agreed upon trade shows,
user group meetings and other appropriate conferences
and seminars.
b. Training:
(i) Develop opportunities to acquaint product, market and
sales managers with the Services and capabilities of
the pertinent Product offerings;
(ii) Develop ordering processes and acquaint market and
sales managers with it's use.
c. Web Pages and Links:
(i) Build links to the partner's internet home pages to
facilitate public and/or internal access to company
and Product information;
(ii) Provide appropriate access to the partner's intranet
to facilitate and support joint bids, proposals and
contracts.
d. Tools for the Sales Force and Market Managers:
(i) Develop canned presentations, application guides,
configurators, etc. and make available in electronic
or hard copy format;
(ii) Develop a user friendly way to provide updated
Product information to the field; (iii) Generate
information targeting specific identified customers;
(iv) Develop process for support and tracking of
bids, possibly using Web Pages; (v) Define ordering
processes, billing status and problem resolution, and
explore mechanization;
(vi) Develop a process for making demo equipment available
to Identified Customers, as appropriate;
(vii) Explore joint postmortem analysis of bids to improve
success ratio.
e. Coordination of Product Planning, Market Research and Customer
Feedback: Establish periodic review sessions with product and
market managers to coordinate product and market strategies,
15
ATTACHMENT E
RESEARCH & DEVELOPMENT
In the event that 186K and Able decide to work together on the development of a
specific new Service or Services, the roles and responsibilities of the Parties
with regard to such development and migration paths will be agreed to in a
STATEMENT OF JOINT RESEARCH AND DEVELOPMENT EFFORT which, when completed, will
be appended to this Agreement as Attachment I.
The Parties shall include in Attachment I a detailed description of the
resources to be provided by each Party to achieve the objectives and goals of
the project, including information and human resources, materials, equipment and
services. Attachment I shall also include schedules for furnishing such
resources, mutually agreed-upon milestones and the dates of critical events and
shall make provision for cancellation costs, if applicable.
The ownership of each Product or service jointly developed shall be defined for
each item in Attachment I, with such definition to include ownership of the
Product or Service. The normal development output of each Party not requiring
additional resources of the other Party and which pertains to the integration
and/or enhancement of such Party's Services shall remain the property of such
Party and shall not be the property of the other Party. Such property shall
include, but not be limited to, copyrights, patents and other intellectual
property rights.
In this regard, it is recognized and agreed that the Parties shall grant
licenses or other rights to an Identified Customer to inventions, data and
information under provisions which may be contained in the prime contract;
provided, however, that such license or other rights shall not exceed those
required by said prime contract, unless otherwise agreed upon by both Parties.
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ATTACHMENT F
INTELLECTUAL PROPERTY
1. During the term of this Agreement, the Parties, to the extent of their
right to do so, and as is required for each to perform its obligations
hereunder, may exchange proprietary and confidential information with
each other and, if both Parties agree, with Identified Customers. Any
information, other than proprietary or confidential information
identified, as provided herein, shall not be restricted by either Party
as to the other Party's use thereof.
2. Proprietary and confidential information is defined as, but not limited
to pricing, performance, sales, financial, contractual, and special
marketing information, ideas, technical data, engineering, network
designs, and concepts originated by the disclosing Party, not
previously published or otherwise disclosed to the general public, not
previously available to the receiving Party or others without
restriction, and which the disclosing Party indicates a desire to
protect against unrestricted disclosure or competitive use, and which
is furnished pursuant to this Agreement and appropriately identified as
being proprietary or confidential when furnished.
3. Neither Party shall divulge, duplicate or use, proprietary and
confidential information ("Information") for any purpose not connected
with preparation of a proposal by the Parties and the eventual sale or
provision of Services pursuant to such a proposal, but instead shall
hold in confidence any Information disclosed to it by the other Party
in connection with the performance of this Agreement, and marked with a
proprietary or confidential legend.
4. Neither Party shall reverse compile or reverse engineer the other
Party's software.
5. The Parties each will designate in writing one or more individuals
within their own organization as the only person(s) for receiving
Information exchanged between the Parties pursuant to this Agreement.
6. All Information provided to the other Party will be in writing, clearly
identified as proprietary or confidential, and addressed to the
individual designated to receive Information. In the event that it
becomes necessary to orally disclose Information, the disclosing Party
shall indicate at the time of disclosure that such Information is
proprietary and will summarize such Information in writing within
fifteen (15) days and submit the summary to the receiving Party. The
receiving Party shall protect both the orally disclosed Information and
the written summary of such Information.
7. No license is either granted or implied by the conveying of Information
to a Party. None of the Information which may be submitted or exchanged
by the Parties shall constitute any representation, warranty,
assurance, guarantee or inducement by either Party to the other with
respect to the infringement of trademarks, patents, copyrights or other
intellectual property right or any right of privacy, or other rights of
third persons.
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8. All Intellectual property rights, including copyrights, patents and
other intellectual property, shall remain the property of the
originating Party, and all Services will be distributed under the logos
and trademarks of the manufacturing company. During the term of this
Agreement, the Parties may agree to joint use of logos and trademarks,
trade names, and other designations (hereinafter "Marks") in connection
with joint efforts, presentations, trade show presence, advertisement
and promotions of each Party's Services. However, notwithstanding the
foregoing, neither party is granting the other party a license to use
their respective Marks in any manner that is not a joint presentation.
9. Upon expiration or termination of this Agreement, both Parties will
immediately cease use of all Marks of the other Party and neither will
thereafter use, advertise or display the Marks of the other Party, nor
any Xxxx that is similar to or confusing with any Xxxx associated with
the other Party or Services.
10. If either Party develops hardware or software that incorporates a
feature, functionality or information that is the same or equivalent to
that disclosed by the other Party pursuant to a confidentiality
obligation, then the Party developing such hardware or software shall
have the burden of demonstrating that it has not misused the other
Party's proprietary information.
11. Each Party is authorized to incorporate Information in proposals
contemplated by this Agreement for submittal to Identified Customers,
provided that both Parties have agreed to do so and the Identified
Customer has agreed in writing to keep the Information in confidence.
12. Information which is exchanged may be used by the receiving Party only
in connection with a proposal or in the performance of any contract
award thereunder.
13. In the event a Party to whom Information has been disclosed proposes to
disclose such to an unaffiliated consultant, agent or third Party, it
shall obtain the written consent of the disclosing Party and arrange
for the execution by the consultant, agent or third Party of a
nondisclosure agreement in a form satisfactory to the disclosing Party.
14. Handling of Information, as set forth in this Agreement, is not
applicable to the following:
(a) Information which becomes lawfully known or available to the
receiving Party from a source other than the disclosing Party,
including the Customer, and without breach of this Agreement
by the recipient.
(b) Information developed independently by the receiving Party
without access to Information of the other Party.
(c) Information which is within, or later falls within, the public
domain without breach of this Agreement by the recipient.
(d) Information publicly disclosed with the prior written approval
of the other Party, or
(e) Information disclosed by the Party providing the same to
others on a non-restricted basis.
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15. If during the term of the Agreement, or any resulting subcontract,
copyrightable work patentable inventions result, the following shall
apply:
(a) No license, expressed or implied, shall inure to the other
participating Party as a result of any copyrightable work, or
a patent being granted to one of the Parties for inventions,
created exclusively by its employees.
(b) Rights to file patent applications, and rights in, and
reporting of, subject copyrights, inventions, applications and
patents issued thereon in all countries shall be exclusive to
the Party whose employee(s) created such invention exclusive
of the employees of the other Party.
(c) In the case of joint inventions or copyrightable works, that
is inventions or works made jointly by at least one employee
of each Party hereto, each Party shall have an equal undivided
one-half interest in and to such joint inventions and works,
as well as in and to copyright applications,copyrights
thereon, patent applications and patents thereon in all
countries, subject to the provisionshereof and to the rights
conveyed to the Customer, if any, under the prime contract or
the subcontract. Neither Party shall be required to account to
the other Party for any income received by reason of such
joint invention.
(d) In the case of joint inventions and , the Parties shall agree
as to which will have the first right of selection to file
patent and/or copyright applications in any country in its
area of endeavor. Each Party in turn shall make its election
to file an application for the joint invention or work in a
country of its choosing, notifying the other Party of its
decision at the earliest practicable time. Income derived from
a specific patent or copyrightable work shall be the property
of the Party holding the patent or copyright in that country.
(e) The expense for preparing, filing, and prosecuting each joint
application and for issue of the respective patent or
copyright shall be borne by the Party which prepares and files
the application as will any taxes or annuities that may be
levied on a pending or issued patent or copyright. The other
Party shall furnish the filing Party with all documents or
other assistance that may be necessary for the filing and
prosecution of each application.
16. Nothing herein shall restrict either Party from disclosing any portion
of such Information, on a restricted basis, pursuant to a judicial or
other lawful order, but only to the extent of such order; provided,
however, the receiving Party shall immediately notify the disclosing
Party of such judicial or other lawful order and assist the disclosing
Party in its efforts to obtain a protective order or confidential
treatment.
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17. The obligations of nondisclosure and non-use of Information imposed in
the preceding paragraphs shall be perpetual unless and until the
Information becomes publicly available through any means other than a
violation of the non-disclosing party of its obligations hereunder.
Upon termination or cancellation of this Agreement, the Parties agree
to immediately return or destroy all proprietary or confidential
information in their possession.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date
herein indicated.
Able Telecom Holding Corp., Inc. 000X.Xxx Co.
By: /S/ XXXXXX X. XXXXXXX By: /S/ XXX XXXXX
------------------------ ------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxx Xxxxx
Title: General Counsel Title: President
(Date) July 7, 1999 (Date) 7-7-99
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ATTACHMENT G
ABLE'S STANDARD PAYMENT TERMS AND CONDITIONS
21
ATTACHMENT H
186K'S STANDARD PAYMENT TERMS AND CONDITIONS
Invoicing Monthly with net 30.
Development costs are collected at target completion points.
20% Deposit collected on consulting and engineer projects.
Product and Hosting pricing are collected in advance of deliverables and
products may have a restocking fees paid directly to third parties.
22
ATTACHMENT I
STATEMENT OF JOINT R&D EFFORT
23
ATTACHMENT J
STATEMENT OF JOINT R&D EFFORT
186K/ABLE DEFERRED VALUE ADDED EQUITY SWAP
INCREMENTAL ANALYSIS
Base Value for Calculating Increases
Able ######
186K 25,000,000
Market Cap Increase Participation
Able 10%
186K 10%
Limitation
Lesser of appreciation amount for Able or for 186K at time of exercise
RESULTANT AMOUNTS
ABLE PERFORMANCE 186K PERFORMANCE
---------------- ----------------
MARKET CAP DEFERRED VALUE TO MARKET CAP DEFERRED VALUE TO
INCREASE 186K INCREASE ABLE
-------- ---- -------- ----
10% 2,500,000 10% 250,000
20% 2,500,000 20% 500,000
30% 3,000,000 30% 750,000
40% 4,000,000 40% 1,000,000
50% 5,000,000 50% 1,250,000
60% 6,000,000 60% 1,500,000
70% 7,000,000 70% 1,750,000
80% 8,000,000 80% 2,000,000
90% 9,000,000 90% 2,250,000
100% 10,000,000 100% 2,500,000
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