EXHIBIT 10.25
[*] DESIGNATES MATERIAL FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED,
WHICH MATERIAL HAS BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION.
GLOBALTEL RESOURCES, INC.
EXCLUSIVE SERVICES AND MARKETING AGREEMENT
THIS GlobalTel Resources, Inc. Exclusive Services And Marketing Agreement (the
"Agreement") is made as of April 15, 1997 (the "Effective Date"), by and among
GlobalTel Resources, Inc., a Washington corporation ("GTR"), and International
Business Network for World Commerce & Industry, Ltd., a company doing business
in New York and Bermuda ("IBNet").
RECITALS
WHEREAS, GTR plans to market and sell a package of telecommunications services
as it exists from time to time to international chambers of commerce, chamber
members and consortia of the same; and
WHEREAS, IBNet desires to market telecommunications services established by GTR
to international chambers of commerce, chamber members and consortia of the
same; and
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties agree as follows:
AGREEMENT
1. Definitions. The following terms, whenever initially capitalized, shall
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have the following meanings for purposes of this Agreement:
1.1 "Chambers of Commerce" shall mean all international and local chambers
of commerce, and all consortia and groups of same.
1.2 "Customer" shall mean an individual or legal entity that enters into
an agreement with GTR for the Telecommunications Services offered hereunder.
1.3 "Offering" shall mean the various offering(s) by GTR of any
combination of Telecommunications Services.
1.4 "Fee" shall mean the fee payable to IBNet from GTR for each Customer
that enters into an agreement with GTR for Telecommunications Services, as
further described in paragraph 4 and Exhibit A.
1.5 "Telecommunications Services" shall mean the international services
offered by GTR to Customers, including but not limited to the following or any
combination of the following: voice services; facsimile services; virtual
private networks;
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Internet service; intranets service; local dial-up for global travelers;
wireless communications (satellite, cellular, paging); cable; messaging services
(voice, fax, electronic mail, voice mail), multimedia services (audio, video,
video conferencing); domestic and international long-distance; and system
integration services.
2. Exclusive Marketing of Telecommunications Services.
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2.1 As of the Effective Date, and subject to the other terms and
conditions set forth herein, IBNet hereby agrees to market and promote the
Telecommunications Services to Chambers of Commerce. IBNet shall not market or
promote the telecommunications services of any party other than GTR for the term
of this Agreement.
2.2 IBNet agrees to allow GTR to use the Chambers of Commerce trademarks
as the exist today, or as they may be developed to represent the Chambers of
Commerce and IBNet in the future, in the marketing of GTR's Offerings to the
Chambers of Commerce as well as non-chamber members on an exclusive basis,
subject to the provisions of Section 7 to this Agreement.
2.3 IBNet agrees to do the following, at a minimum, to market and promote
the Telecommunications Services to Chambers of Commerce: (a) list the Offerings
in its database available to the Chambers of Commerce and their members; (b)
promote the Offerings in IBNet's literature that it provides to the Chambers of
Commerce; and (c) promote GTR and its Offerings at trade shows, in speaking
engagements and to the press.
2.4 IBNet shall market and promote the particular Offerings of GTR, which
GTR shall communicate to IBNet from time to time in its sole discretion. IBNet
shall not alter, change or modify the Offerings of GTR without GTR's prior
approval.
3. GTR's Responsibilities.
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3.1 GTR shall develop its own telecommunications services and enter into
agreements with third parties offering \telecommunications services which shall
constitute the Offerings.
3.2 GTR grants to IBNet during the term of this Agreement the exclusive
right to market and promote the Offerings to Chambers of Commerce.
3.3 GTR shall enter into agreements directly with its Customers for the
Telecommunications Services. GTR or its agent shall be solely responsible for
billing its Customers, product packaging, training and Customer service.
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3.4 GTR shall be entitled to offer and provide the Telecommunications
Services to Chambers of Commerce on such terms and conditions (including without
limitation as to the Offering, the specific services provided and pricing and
billing procedures) as GTR may determine in its sole discretion.
3.5 GTR will offer Telecommunications Services to the Chambers of Commerce
exclusively in partnership with IBNet as authorized under this agreement. Any
customer lead generated and actively being pursued by IBNet along with the
Chambers of Commerce, IBNet will have the first right to pursue and receive
compensation on said customer as outline in this agreement. Customer
opportunities that are generated outside of IBNet and the Chambers of Commerce
are not covered under this agreement, and IBNet and the Chambers of Commerce
will not receive compensation from said customers.
4. Fees and Payments.
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4.1 As long as IBNet complies with its obligations under this agreement,
GTR shall pay IBNet Fees as set forth in Exhibit A, which shall be amended from
time to time, for Chambers of Commerce that become Customers of GTR for
Telecommunications Services.
4.2 Payments of Fees shall be made in accordance with the schedule and in
the manner set forth in Exhibit A.
5. Joint Marketing.
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5.1 The parties will carry out mutually agreed joint marketing activities
from time to time, including without limitation the following activities:
advertising, press releases, conferences and special events.
5.2 GTR and IBNet will supply from time to time copy for use in marketing
collateral for the Offerings, for distribution pursuant to Section 2.2 and in
other marketing and promotional activities. GTR and IBNet shall be entitled to
review and approve in writing all marketing collateral that will be used in the
marketing of the Offerings to the Chambers of Commerce prior to distribution.
GTR and IBNet shall not unreasonably withhold or delay their approval of such
marketing collateral.
6. Equity Options and Internet Services.
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6.1 In consideration for the exclusive marketing of GTR's
Telecommunications Services, GTR grants to IBNet an option to purchase from ten
thousand (10,000) shares of GTR common stock at $1.10 (U.S.) per share.
Additional options shall be granted to IBNet based on the schedule and
conditions set forth in Exhibit B.
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6.2 GTR and IBNet shall negotiate in good faith the terms and pricing of
a GTR-provided Internet for IBNet to link the Chambers of Commerce
electronically (the "Internet Services"). GTR shall provide IBNet with
information regarding the terms and pricing of extending such Intranet Services
to IBNet's member companies.
7. Trademarks.
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7.1. IBNet acknowledges that "GlobalTel Resources, Inc." and the
trademarks, service marks and logos of GTR and third parties associated with the
Telecommunications Services (collectively, the "GTR Trademarks") are owned by
GTR and/or its affiliated parties. GTR acknowledges that "IBNet," and the
trademarks, service marks and logos of the Chambers of Commerce (the "Chambers
of Commerce Trademarks") are owned by IBNet or the Chambers of Commerce, and
that IBNet is authorized to allow third parties' uses of such trademarks as they
exist today or may be created in the future. (Collectively or individually, the
parties' trademarks are hereinafter referred to as "Trademarks.") Each party
hereby authorizes the other to use such party's Trademarks on a nonexclusive
basis during the term of this Agreement to promote the Offerings and to carry
out its respective or joint marketing obligations in accordance with Sections
2, 5 and all other terms of this Agreement. Each party agrees not to challenge
or contest the ownership of the Trademarks; validity of the Trademarks; or
validity of the licenses granted under this Agreement. Each party agrees that it
will do nothing inconsistent with such ownership and that all use of the
Trademarks shall inure to the benefit of and be on behalf of owner of the
Trademarks. Each party agrees it will not set up any adverse claim against the
party owning the Trademarks based upon its use of the Trademarks. Each party
shall employ best efforts to use the Trademarks in a manner that does not
derogate from the owner's rights in the Trademarks and will take no action that
will interfere with or diminish its rights in the Trademarks, either during the
term of this Agreement or afterwards. Each party agrees not to adopt, use or
register any corporate name, trade name, trademark, service mark or
certification mark, or other designation similar to, or containing in whole or
in part, the Trademarks not owned by it.
7.2. Each party shall use the Trademarks in a form and manner consistent
with proper trademark usage and any guidelines on such usage which the owner of
the Trademarks may prescribe from time to time.
7.3. All rights not expressly granted herein relating to the Trademarks
are reserved by the party owning the Trademarks. Each party acknowledges that
nothing in this Agreement shall give it any right, title or interest in the
Trademarks not owned by it. No party may use the Trademarks in any manner
whatsoever other than as expressly described in this Agreement. All rights a
party has acquired or may acquire in the Trademarks, including all associated
goodwill, shall be the property of the owner of the Trademarks solely and are
hereby assigned to such owner. Except as otherwise expressly
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provided herein, neither party shall assign, transfer or sublicense its rights
under this Section 7 in any manner without the prior written consent of the
other party. Any attempted assignment or transfer in violation of the provisions
hereof, by operation of law or otherwise, shall be void.
7.4. Each party acknowledges that a breach by it of this Agreement may
cause the other party irreparable damage which cannot be remedied in monetary
damages in an action at law, and may also constitute infringement of the
Trademarks. In event of any breach that could cause irreparable harm to the
owner of the Trademarks, or cause some impairment or dilution of its reputation
or Trademarks, such owner shall be entitled to an immediate injunction, in
addition to any other legal or equitable remedies.
8. Confidentiality.
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8.1. For purposes of this Agreement, "Confidential Information" shall mean
nonpublic information that the disclosing party designates as being confidential
or that, under the circumstances surrounding disclosure, ought to be treated as
confidential. "Confidential Information" includes, without limitation,
information relating to released or unreleased disclosing party products, the
marketing or promotion of any disclosing party product, disclosing party's
business policies or practices, information received from others that disclosing
party is obligated to treat as confidential, and the terms and conditions of
this Agreement. Confidential Information disclosed to the receiving party by any
disclosing party subsidiary and/or agents is covered by this Agreement.
8.2. Confidential Information shall not include any information that: (i)
is or subsequently becomes publicly available without the receiving party's
breach of any obligation owed the disclosing party; (ii) became known to the
receiving party prior to the disclosing party's disclosure of such information
to the receiving party; (iii) became known to the receiving party from a source
other than the disclosing party other than by the breach of an obligation of
confidentiality owed to the disclosing party; or (iv) is independently developed
by the receiving party.
8.3 The receiving party shall not disclose any Confidential Information to
third parties for three (3) years following the date of its disclosure by the
disclosing party to the receiving party, except on a need-to-know basis to the
receiving party's employees and consultants (including without limitation third
party legal and financial advisors). However, the receiving party may disclose
Confidential Information in accordance with judicial or other governmental
order, provided the receiving party shall give the disclosing party reasonable
notice prior to such disclosure and shall comply with any applicable protective
order or equivalent.
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8.4. The receiving party shall return all originals, copies, reproductions
and summaries of Confidential Information and/or materials containing
Confidential Information at the disclosing party's request, or at the disclosing
party's option, certify destruction of the same.
9. Term and Termination.
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9.1. This Agreement shall become effective as of the Effective Date and
shall continue in effect for a period of ten (10) years. This Agreement shall be
automatically renewed for additional one (1) year term(s) upon the expiration of
the initial or any succeeding term unless either party notifies the other in
writing not later than sixty (60) days before expiration of the then-current
term that such party elects not to renew this Agreement, in which event it will
expire at the end of such then-current term.
9.2. Notwithstanding the provisions of Section 9.1, this Agreement may be
terminated prior to its natural expiration under any of the following
provisions:
(a) Either party may terminate this Agreement if the other party
materially fails to perform or comply with this Agreement or any provision
hereof and does not remedy such failure within sixty (60) days of receiving
notice thereof from the other party. If this Agreement is so terminated, the
effective date of such termination will be the last day of the calendar month
following the month in which such sixty (60)-day cure period expires.
(b) In addition, in the event either party: becomes insolvent or
makes any assignment for the benefit of creditors or similar transfer evidencing
insolvency; or suffers or permits the commencement of any form of insolvency or
receivership proceeding; or has any petition under any bankruptcy law filed
against it, which petition is not dismissed within sixty (60) days of such
filing; or has a trustee or receiver appointed for its business or assets or any
part thereof, then the other party may terminate this Agreement immediately,
without prior written notice.
9.3. Upon the expiration or termination of this Agreement for any reason,
each party shall deliver and surrender up to the other party each and every
Trademark of the other party, any Confidential Information of the other party,
and the possession of any physical objects bearing or containing any of the
same, and the delivering party shall not thereafter use any of the same, and
delivering party hereby acknowledges and agrees that ownership of all such
items, as and between the parties, is and shall at all times remain vested in
the owner of the Trademark and/or Confidential Information.
10. Representations and Covenants.
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10.1. IBNet represents, warrants and covenants to GTR that:
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(a) IBNet shall market and promote the Telecommunications
Services in a professional manner and in conformance with the terms of this
Agreement.
(b) IBNet has the power and authority on behalf of the
Chambers of Commerce and other consortium members to enter into this Agreement
and to fully perform its obligations hereunder.
(c) IBNet will notify GTR promptly and in reasonable detail,
in accordance with all procedures communicated from time to time to IBNet by
GTR, of any complaints or other notices received by IBNet with respect to
content or services within the Offerings and any potential liability of GTR
therefor, and will provide reasonable cooperation to GTR in investigating any
such complaints and notices.
(d) IBNet will not represent itself as the legal
representative of GTR for any purpose whatsoever, and shall not create or assume
for GTR any obligation of any kind.
(e) IBNet will not make any representations or warranties
concerning the Offerings except as may be specifically authorized in writing by
GTR.
10.2. GTR represents and warrants to IBNet that:
(a) GTR shall conduct business with IBNet and the Chambers of
Commerce in a professional manner and in conformance with the terms of this
Agreement.
(b) GTR has the power and authority to enter into Agreement
and to fully perform its obligations hereunder.
(c) GTR will notify IBNet promptly and in reasonable detail,
in accordance with all procedures communicated from time to time to GTR by
IBNet, of any complaints or other notices received by GTR with respect to the
Offerings or business relationship with IBNet and the Chambers of Commerce, and
will provide reasonable cooperation to IBNet in investigating any such
complaints and notices.
(d) GTR will not represent itself as the legal representative
of GTR for any purpose whatsoever, and shall not create or assume for IBNet any
obligation of any kind.
THIS SECTION CONTAINS THE ONLY WARRANTIES MADE BY THE PARTIES. TO THE MAXIMUM
EXTENT PERMITTED BY LAW, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND,
EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF
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MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE
MATTERS COVERED HEREIN.
11. Indemnification. Limitation of Liability.
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11.1. Each party (the "indemnifying party") agrees to indemnify, defend,
and hold harmless the other party, its officers, directors, employees, and
agents, from any and all third party causes of action, claims, demands, damages,
liabilities, costs, and expenses (including without limitation reasonable
attorneys' fees and costs) (hereinafter referred to as "Claims") arising out of
or in connection with any claim which, if true, would be a breach of the
indemnifying party's warranties, representations, or obligations under this
Agreement. If any action shall be brought against a party under this Agreement
in respect to which indemnity may be sought hereunder, the party claiming such
indemnity shall promptly notify the other party in writing, specifying the
nature of the Claim and the total monetary amount sought or other such relief as
is sought therein. The indemnified party shall cooperate with the indemnifying
party in all reasonable respects in connection with the defense of any Claim.
Except as otherwise provided herein, the indemnifying party may upon written
notice to the indemnified party undertake to conduct all proceedings or
negotiations in connection with a Claim, and assume the defense thereof, and, if
it so undertakes, it shall also undertake all other required steps or
proceedings to settle or defend any such Claim at its own expense. Each party
shall have the right to employ separate counsel and participate in the defense
of any Claim hereunder. The indemnifying party shall reimburse the indemnified
party hereunder upon demand for any payment made by such indemnified party that
is based upon the judgment of any court of competent jurisdiction or pursuant to
a bona fide compromise or settlement of any Claim; provided, however, that the
indemnifying party shall not be responsible for any settlement made by the
indemnified party without the indemnifying party's written approval, which shall
not be unreasonably withheld.
11.2. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY
INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING
WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION,
LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS
AGREEMENT.
12. Miscellaneous.
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12.1. Neither party shall represent itself as the agent or legal
representative of the other for any purpose whatsoever, and neither party shall
have the right to create or assume for the other any obligation of any kind.
This Agreement shall not create or be deemed to create an agency, partnership,
franchise, employment relationship or joint
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venture between the parties. Each party's employees who perform services related
to this Agreement shall remain under the exclusive-direction and control of
their respective employer and shall receive such salaries, compensation and
benefits as their respective employer may from time to time determine. Each
party shall have full and sole responsibility for its employees who perform any
service related to this Agreement with regard to compliance with all applicable
laws, rules and regulations governing such party relating to employment, labor,
wages, benefits, taxes and other matters affecting its employees.
12.2. Any notice required or permitted to be given under this Agreement
shall be made in writing and shall be deemed to have been given or made if it is
in writing and is: (i) delivered in person, (ii) sent by same day or overnight
courier, (iii) mailed by certified or registered mail, return receipt requested,
postage prepaid, addressed to the party at its address set forth below or at
such other address as such party may subsequently furnish to the other party by
notice hereunder, or (iv) delivered by facsimile, the transmittal of which shall
be confirmed by a telephone call to the other party and by dispatch of a
confirming copy of the transmittal by registered or certified mail, postage
prepaid. Notices will be deemed effective on the date of delivery in the case of
personal delivery, or three (3) business days after mailing, or on the date of
dispatch in the case of notification by facsimile (assuming confirmation of
transmission). The parties' addresses for purposes of notice shall be as
follows:
GTR: GlobalTel Resources, Inc.
1520 Eastlake Avenue East, Ste. 210
Seattle, Washington 98102
Attn: Mr. Ronald Erickson
(206) 720-7250 (voice)
(206) 720-7251 (fax)
IBNet: International Business Network
115 Lantern Park Lane South
Southbury, CT 06488-2331 USA
Attn: Mr. John A. Monteleone
(203) 264-0359 (voice)
(203) 264-7293 (fax)
12.3. The failure of any party to enforce its rights, remedies or any
condition of this Agreement, shall not be deemed a waiver thereof, nor shall it
affect such party's right to subsequently enforce the same.
12.4. This Agreement shall be construed, enforced, performed and in all
respects governed by and in accordance with the laws in the State of Washington
as they apply to
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contracts entered into and performed entirely within such State. Each of the
parties hereby irrevocably consents to jurisdiction and venue in the state and
federal courts sitting in King County, Washington. In any action or suit to
enforce any right or remedy under this Agreement, the prevailing party shall be
entitled to recover its reasonable attorneys' fees and costs.
12.5. The invalidity or unenforceability of any provision of this
Agreement shall not affect the other provisions of this Agreement and this
Agreement shall be construed in all respects as if such invalid or unenforceable
provision were replaced with a valid and enforceable provision as similar as
possible to the one replaced.
12.6. Either party may voluntarily or by operation of law assign,
sublicense, transfer, encumber or otherwise dispose of all or any part of its
interest in this Agreement, in the event of a reorganization, consolidation or
merger involving another entity which results in a change of control of the
assigning party, with the prior written consent of the other party, which
consent shall not be unreasonably withheld. For purposes of this Agreement, a
"change in control" shall mean the acquisition of more than fifty percent (50%)
of any class of either party's voting stock by another entity, or the sale of
more than fifty percent (50%) of such party's assets. Subject to the provisions
of this Section, this Agreement shall be binding upon and inure to the benefit
of each party and their respective successors and assigns.
12.7. Except as otherwise specifically stated herein, this Agreement is
not intended to benefit, nor shall it be deemed to give rise to, any rights in
any third party.
12.8. This Agreement, including all exhibits and agreements referenced and
made effective herein, represents the entire understanding of the parties with
respect to the subject matter hereof. Except as provided for elsewhere in this
Agreement, no conditions, usage of trade, course of dealing or performance,
understanding or agreement purporting to modify, vary, explain or supplement the
terms or conditions of this Agreement shall be binding unless hereafter made in
writing and signed by both parties. No modification shall be effected by the
acknowledgment or acceptance of a purchase order, by invoice or otherwise,
containing terms or conditions at variance with or in addition to those set
forth herein.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
GTR IBNet
By /s/ Ronald P. Erickson By /s/ John A. Moteleone
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Name Ronald P. Erickson Name John A. Moteleone
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Title Chairmain & CEO Title Exec. VP & COO
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Exhibit A
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Fees and Payments
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GTR agrees to pay IBNet fees for the referral of business to GTR by IBNet with a
customer agreement that has been initiated by IBNet or the Chambers of Commerce.
The fees will be paid for the term of the agreement. Fees may vary by product
and will be paid on gross margin dollars which shall be calculated by taking the
gross revenue and subtracting the cost of goods sold (the network cost excluding
G & A).
Fees apply beginning with the contract signing by a customer.
Fee Fee Fee
Product Year 1 Year 2 Year 3 + option
- ------- -------------------------- --------------------- ---------------------
International Voice [*] of Gross Margin [*] of GM [*] of GM
International Fax [*] of Gross Margin [*] of GM [*] of GM
Calling Card Services To Be Determined (TBD)
Intranet Services TBD
Internet Access TBD
Domestic Voice TBD
Virtual Private Networks TBD
Wireless Communications TBD
Messaging Services TBD
Multimedia Services TBD
System Integrations Services TBD
Cable Services TBD
Other Telecommunications Services TBD
[*] CONFIDENTIAL TREATMENT REQUESTED
A-1
Exhibit B
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Options
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GTR will grant options to IBNet based on reaching certain milestones based on
performance as measured by monthly revenue of the services sold to Chambers of
Commerce. The options will be granted at the then current price at the time of
grant. The option schedule is as follows:
Existing options based on section 6 of the contract: 10,000 options
Monthly Revenue Milestones Options Granted
- -------------------------- ---------------
$1,000,000 per month 25,000 options
$2,000,000 per month 25,000 options
$3,000,000 per month 25,000 options
$4,000,000 per month 25,000 options
$5,000,000 per month 25,000 options
$7,500,000 per month 25,000 options
$10,000,000 per month 25,000 options
Any option for revenue per month in excess of $10,000,000 per month will be
negotiated at that time.
B-1