STRATEGIC ALLIANCE AGREEMENT
AMONG
ARRAY TELECOM CORPORATION,
EPHONE TELECOM, INC.
AND
COMDIAL CORPORATION
This Strategic Alliance Agreement (the "Agreement") is made as of March
31, 2000, between ARRAY TELECOM Corporation, a corporation incorporated under
the laws of the State of Delaware and having its principal office at 1145
Herndon Parkway, Herndon, Virginia 20170 ("Array"), ePHONE TELECOM, INC., a
corporation incorporated under the laws of the State of Florida and having its
principal office at 355 Burrard Street, Suite 1000, Vancouver, British Columbia,
Canada V6C 2G8 ("ePHONE"), and COMDIAL CORPORATION, a corporation incorporated
under the laws of the State of Delaware and having its principal office at 1180
Seminole Trail, Charlottesville, Virginia 22906 ("Comdial").
RECITALS
WHEREAS, ePHONE is in the business of providing certain
telecommunications services, including international long distance services that
allow users to perform phone-to-phone one step dialing via Voice over Internet
Protocol;
WHEREAS, Array has developed certain software products, including
VoipGate, Array Version 2 and the Array 3000 family of products, and owns
certain related assets;
WHEREAS, Comdial owns all of the outstanding capital stock of Array;
and
WHEREAS, Array has agreed to sell, and ePHONE has agreed to purchase,
all of Array's physical assets, and Array has agreed to grant to ePHONE a
license in the form of Exhibit B to this Agreement to, among other things,
VoipGate, Array Version 2 and the Array 3000 family of products.
AGREEMENT
NOW, THEREFORE, in consideration of the covenants, agreements and
representations set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
ARTICLE 1.
SALE AND PURCHASE OF ASSETS
Section 1.1 Sale and Purchase of Assets. Subject to the terms and conditions of
this Agreement, on the Closing Date (hereinafter defined) Array shall sell,
transfer, convey and deliver to ePHONE, and on the Closing Date ePHONE shall
purchase and acquire from Array, the fixed assets of Array used in its business
and listed in Schedule 1 (the "Purchased Assets"). The transfer and conveyance
of the Purchased Assets shall be made by a bill of sale (the "Bill of Sale") in
substantially the form attached hereto as Exhibit A.
Section 1.2 Excluded Assets. The Purchased Assets to be sold and purchased
hereunder do not include cash, accounts receivable, intangible assets, patents
or patent applications, know-how, trade secrets or any other asset of Array that
is not listed in Schedule 1.
Section 1.3 No Assumption of Liabilities. ePHONE shall not assume or be
otherwise liable for any liabilities or obligations of Array related to the
Purchased Assets or otherwise, except for obligations arising after the Closing
Date under the Lease (as defined in Section 7.7).
ARTICLE 2.
LICENSE OF TECHNOLOGY
Section 2.1 License. Array shall grant to ePHONE a license to the Intellectual
Property (as such term is defined in the License Agreement) (the "Licensed
Assets") pursuant to the License Agreement in substantially the form attached
hereto as Exhibit B.
ARTICLE 3.
CONSIDERATION FOR AGREEMENT
Section 3.1 Consideration for Agreement. In partial consideration for this
Agreement and the transactions contemplated hereby, ePHONE shall pay to Array at
the Closing in cash the amount of $2,650,000.
Section 3.2 Royalty Payments. ePHONE shall make royalty payments to Comdial
pursuant to the terms of the License Agreement.
ARTICLE 4.
REPRESENTATIONS BY ARRAY
Section 4.1 Organization; Qualification. Array is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all necessary corporate power and authority to own its assets and carry
on its business as it is presently being conducted. Array is duly qualified and
in good standing to do business in each jurisdiction in which its business makes
such qualification necessary, except in those jurisdictions where failure to be
duly qualified and in good standing does not and cannot reasonably be expected
to have, in the aggregate, a material adverse effect on the Purchased Assets,
the Licensed Assets or its business. Array has heretofore delivered to ePHONE
complete and correct copies of its Certificate of Incorporation and Bylaws
currently in effect.
2
Section 4.2 Authority Relative to this Agreement. Array has all necessary
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery by
Array of this Agreement, and the consummation by it of the transactions
contemplated hereby, have been duly authorized by the Board of Directors of
Array and no other corporate proceedings on the part of Array are necessary with
respect thereto. This Agreement has been duly executed and delivered by Array
and constitutes, and the other agreements referred to herein to which Array is a
party (collectively, the "Array Related Agreements"), when executed and
delivered by Array, will constitute, valid and binding obligations of Array
enforceable against Array in accordance with their terms, except as their terms
may be limited by (i) bankruptcy, insolvency or similar laws affecting
creditors' rights generally or (ii) general principles of equity, whether
considered in a proceeding in equity or at law.
Section 4.3 No Violation. The execution and delivery by Array of this Agreement
and the Array Related Agreements does not, and the consummation of the
transactions contemplated hereby and thereby, will not (i) violate or result in
a breach of any provision of the Certificate of Incorporation or bylaws of
Array, (ii) result in a default, or give rise to any right of termination,
modification or acceleration, or the imposition of a mortgage, lien, pledge,
security interest, charge, claim, restriction or other encumbrance or other
defects in title (each an "Encumbrance") on any of the Purchased Assets or the
Licensed Assets, under the terms or provisions of any agreement or other
instrument or obligation to which Array is a party or by which Array, any of the
Purchased Assets, the Licensed Assets or its business may be bound, or (iii)
violate any law or regulation, or any judgment, order or decree of any court,
governmental body, commission, agency or arbitrator applicable to Array, any of
the Purchased Assets, the Licensed Assets or its business (other than applicable
"bulk sales" laws), excluding from the foregoing clauses (ii) and (iii) such
defaults and violations which do not and cannot reasonably be expected to have a
material adverse effect on the Purchased Assets or the Licensed Assets, or Array
or its other properties or its business.
Section 4.4 Litigation. There are no actions, suits, claims, investigations or
proceedings pending or, to the knowledge of Array, threatened against Array,
before any court, governmental body, commission, agency or arbitrator, which
have or can reasonably be expected to have a material adverse effect on the
Purchased Assets or the Licensed Assets or Array or its business, or which seek
to limit, in any manner, the right of ePHONE to control and use the Purchased
Assets and the Licensed Assets after the consummation of the transactions
contemplated in this Agreement. Furthermore, there are no judgments, orders or
decrees of any such court, governmental body, commission, agency or arbitrator
which have or can reasonably be expected to have any such effect.
Section 4.5 Titles to Assets; Leases. Array holds good and marketable title to
all of the Purchased Assets and the Licensed Assets, free and clear of any
Encumbrances, and has the right to sell, transfer and assign the Purchased
Assets to ePHONE and license the Licensed Assets to ePHONE. All properties held
under lease by Array are held under valid, enforceable and assignable leases.
3
Section 4.6 Consents and Approvals. Except to the extent that failure to obtain
such consent or approval would not have material adverse effect on the Purchased
Assets or the Licensed Assets or Array's business, and except for the consent of
Bank of America under the Credit Agreement between Bank of America and Comdial
dated as of October 22, 1998, which consent has been obtained, there is no
requirement applicable to Array to make any filing with, or to obtain the
consent or approval of, any individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
any government or political subdivision, agency or instrumentality thereof (each
a "Person") as a condition to the consummation of the transactions contemplated
by this Agreement (other than as may be required by applicable "bulk sales"
laws).
ARTICLE 5.
REPRESENTATIONS BY COMDIAL
Section 5.1 Organization and Qualification. Comdial is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all necessary corporate power and authority to own its assets
and carry on its business as it is presently being conducted. Comdial is duly
qualified and in good standing to do business in each jurisdiction in which its
business makes such qualification necessary, except in those jurisdictions where
failure to be duly qualified and in good standing does not and cannot reasonably
be expected to have, in the aggregate, a material adverse effect on its
business.
Section 5.2 Authority Relative to Agreement. Comdial has all necessary corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by Comdial of this
Agreement, and the consummation by it of the transactions contemplated hereby,
have been duly authorized by the Board of Directors of Comdial and no other
corporate proceedings on the part of Comdial are necessary with respect thereto.
This Agreement has been duly executed and delivered by Comdial, and constitutes
the valid and binding obligation of Comdial enforceable against Comdial in
accordance with its terms except as its terms may be limited by (i) bankruptcy,
insolvency or similar laws affecting creditors' rights generally or (ii) general
principles of equity, whether considered in a proceeding in equity or at law.
Section 5.3 No Violation. The execution and delivery by Comdial of this
Agreement does not, and the consummation of the transactions contemplated hereby
will not, (i) violate or result in a breach of any provision of the Certificate
of Incorporation or bylaws of Comdial, or (ii) violate any law or regulation, or
any judgment, order or decree of any court, governmental body, commission,
agency or arbitrator applicable to Comdial or its business excluding such
defaults and violations which do not and cannot reasonably be expected to have a
material adverse effect on its properties or its business.
4
ARTICLE 6.
REPRESENTATIONS BY EPHONE
Section 6.1 Organization and Qualification. ePHONE is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida and has all necessary corporate power and authority to own its assets
and carry on its business as it is presently being conducted. ePHONE is duly
qualified and in good standing to do business in each jurisdiction in which its
business makes such qualification necessary, except in those jurisdictions where
failure to be duly qualified and in good standing does not and cannot reasonably
be expected to have, in the aggregate, a material adverse effect on its
properties or its business. ePHONE has heretofore delivered to Comdial complete
and correct copies of its Articles of Incorporation and Bylaws currently in
effect.
Section 6.2 Authority Relative to Agreement. ePHONE has all necessary corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by ePHONE of this
Agreement, and the consummation by it of the transactions contemplated hereby,
have been duly authorized by the Board of Directors of ePHONE and no other
corporate proceedings on the part of ePHONE are necessary with respect thereto.
This Agreement has been duly executed and delivered by ePHONE and constitutes,
and the Related Agreements to which ePHONE is a party, when executed and
delivered by ePHONE, will constitute, valid and binding obligations of ePHONE
enforceable against ePHONE in accordance with their terms except as their terms
may be limited by (i) bankruptcy, insolvency or similar laws affecting
creditors' rights generally or (ii) general principles of equity, whether
considered in a proceeding in equity or at law.
Section 6.3 No Violation. The execution and delivery by ePHONE of this Agreement
does not, and the consummation of the transactions contemplated hereby will not,
(i) violate or result in a breach of any provision of the Articles of
Incorporation or bylaws of ePHONE, or (ii) violate any law or regulation, or any
judgment, order or decree of any court, governmental body, commission, agency or
arbitrator applicable to ePHONE or its business as presently conducted or as
contemplated to be conducted in the Business Plan of ePHONE, excluding such
defaults and violations which do not and cannot reasonably be expected to have a
material adverse effect on its properties or its business.
Section 6.4 Consents and Approvals. Except to the extent that failure to obtain
such consent or approval would not have material adverse effect on its
properties or its business, there is no requirement applicable to ePHONE to make
any filing with, or to obtain the consent or approval of, any Person as a
condition to the consummation of the transactions contemplated by this
Agreement.
Section 6.5 Financial Statements. ePHONE has previously furnished Comdial with
true and complete copies of (i) the audited financial statements of ePHONE for
the periods ending June 30, 1999 and December 31, 1998 and 1997, including the
notes thereto (the "Annual Financial Statements"), together with the reports on
such statements of ePHONE's independent auditors, and (ii) unaudited interim
financial statements for the eleven month period ending November 30, 1999 (the
"Interim Financial Statements"). Such financial statements present fairly the
financial position of ePHONE as of such dates and the results of its operations
and changes in its financial position for such periods and have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis.
5
Section 6.6 No Undisclosed Liabilities. Since November 30, 1999, and except as
previously disclosed in writing to Comdial, there has not been any change, or
development involving a prospective change, including, without limitation, any
damage, destruction or loss (whether or not covered by insurance), which affects
or can reasonably be expected to affect, the properties or business of ePHONE,
and ePHONE has not entered into any contract which can reasonably be expected to
have any such effect.
Section 6.7 Absence of Certain Changes. Except as previously disclosed in
writing to Comdial, ePHONE has not incurred any liabilities which are not
reflected in the Interim Financial Statements other than those which were
incurred subsequent to such date in the ordinary course of business and which
have not and cannot reasonably be expected to have a material adverse effect on
the properties or business of ePHONE.
Section 6.8 Absence of Litigation. There are no actions, suits, claims,
investigations or proceedings pending or, to the knowledge of ePHONE, threatened
against ePHONE, before any court, governmental body, commission, agency or
arbitrator, which have or can reasonably be expected to have a material adverse
effect or its business or which seek to limit, in any manner, the right of
ePHONE to control the Purchased Assets and the Licensed Assets after the
consummation of the transactions contemplated in this Agreement. Furthermore,
there are no judgments, orders or decrees of any such court, governmental body,
commission, agency or arbitrator which have or can reasonably be expected to
have any such effect.
Section 6.9 Business Plan. Attached hereto as Exhibit C is the current Business
Plan of ePHONE with respect to the Purchased Assets and the Licensed Assets.
ARTICLE 7.
OTHER AGREEMENTS
Section 7.1 Support for Imbedded Base. The parties hereto acknowledge that
Array's imbedded base of customers will be supported and serviced by ePHONE
following the Closing. ePHONE agrees that it will use commercially reasonable
efforts to support such imbedded base from and after the Closing Date.
Section 7.2 Investigation of Business. From the date hereof until the Closing,
each of the parties hereto will afford the other parties hereto and their
respective representatives, including attorneys and accountants, full access at
all reasonable times to its officers, employees, properties, contracts and books
and records to enable such other party to make a full investigation of its
business. Each party will also furnish each other party with such financial,
operating and other information as such party may reasonably request in making
such investigation.
Section 7.3 Confidentiality. The information which any party acquires about any
other party prior to consummation of the transactions contemplated by this
Agreement as a result of the investigations permitted hereby is termed
"Evaluation Material." Each party agrees that neither it, nor any of its
representatives, will (i) use any such material for any purpose not related to
the transactions contemplated by this Agreement nor (ii) disclose any such
material to anyone except its representatives who may need such information to
perform their respective duties and have been informed of its confidential
nature. If the transactions contemplated by this Agreement are not consummated,
each party agrees that it will return any written Evaluation Material in its
possession, or will destroy and will not retain any such material, any copies
thereof or any notes or memoranda made using such material.
6
Section 7.4 Public Announcements. Prior to the Closing Date, the parties will
consult with each other before issuing any press releases or making any public
statements with respect to this Agreement or the transactions contemplated
hereby and will not issue any such press release or make any such public
statement without the prior consent of the other, except to the extent required
by law.
Section 7.5 Employee Matters; Customer Solicitation. Comdial and Array will not
object to or interfere with any efforts by ePHONE to employ the current
employees of Array. During the term of the License Agreement, neither Array nor
Comdial shall directly or indirectly induce or attempt to persuade any employee
of ePHONE to terminate his or her employment with ePHONE. During the term of the
License Agreement, neither Array nor Comdial nor any Person affiliated with
either shall directly or indirectly sell or attempt to sell (by means of
solicitation or otherwise) to any customer to which ePHONE is providing or has
provided Products and Services (as such terms are defined in the License
Agreement) any product or service which is competitive with the Products and
Services.
Section 7.6 Access to Comdial Dealer Network and Direct Sales Organization.
During the term of the License Agreement, Comdial (i) shall use commercially
reasonable efforts to assist ePHONE in distributing products and services
provided by ePHONE through its direct sales organization and (ii) shall use
commercially reasonable efforts to enable ePHONE to distribute products and
services through its network of independent telecommunications equipment
dealers.
Section 7.7 Assignment of Lease. As soon as practicable following the Closing
Date, Array shall assign to ePHONE its interests as lessee under the lease to
Array's business facility located at 1145 Herndon Parkway, Herndon, Virginia,
from W9/LWS Real Estate Limited Partnership, as lessor, dated February 23, 1999
("Lease"), and ePHONE shall, from and after the Closing Date, assume and
discharge the obligations of Array arising after the Closing Date under the
Lease. Such assignment of lease shall be made by an assignment (the "Lease
Assignment") in substantially the form of Lease Assignment attached hereto as
Exhibit D. ePHONE shall use commercially reasonable efforts to have Comdial
released from its obligations under the lease as soon as practicable following
the Closing Date.
ARTICLE 8.
CLOSING OF TRANSACTIONS
Section 8.1 Time and Place of Closing. The closing ("Closing") shall take place
at Arnold & Porter at 4:00 p.m. local time on (i) March 31, 2000, (ii) such
other date as may be agreed upon by the parties (either of which dates is
referred to in this Agreement as the "Closing Date"). If the Closing takes
place, the Closing and all of the transactions contemplated by this Agreement
shall be deemed to have occurred simultaneously and become effective at the same
time on the Closing Date.
7
Section 8.2 Deliveries by Array. At the Closing, Array shall deliver to ePHONE
the following:
(a) Bill of Sale substantially in the form of Exhibit A attached hereto, duly
executed, transferring to ePHONE title to the Purchased Assets;
(b) License Agreement substantially in the form of Exhibit B attached hereto;
(c) Certified copies of the resolutions duly adopted by Array constituting all
necessary corporate authorization for the consummation by Array of the
transactions contemplated by this Agreement;
(d) A certificate dated as of a recent date from the Delaware Secretary of
State as to the good standing of Array; and
(e) Such other documents, instruments, certificates and writings as reasonably
may be requested by ePHONE at least three business days prior to Closing.
Section 8.3 Deliveries by ePHONE. At the Closing, ePHONE shall deliver to Array
or Comdial the following:
(a) Immediately available funds in the amount of $2,650,000, by wire transfer
to an account designated by Array;
(b) License Agreement substantially in the form of Exhibit B hereto;
(c) Certified copies of the resolutions duly adopted by ePHONE constituting all
necessary corporate authorization for the consummation by ePHONE of the
transactions contemplated by this Agreement;
(d) A certificate dated as of a recent date from the Florida Secretary of State
as to the good standing of ePHONE; and
(e) Such other documents, instruments, certificates and writings as reasonably
may be requested by Array at least three business days prior to Closing.
Section 8.4 Deliveries by Comdial. At the Closing, Comdial shall deliver to
ePHONE the following:
(a) License Agreement substantially in the form of Exhibit B attached hereto;
(b) Certified copies of the resolutions duly adopted by Comdial constituting
all necessary corporate authorization for the consummation by Comdial of
the transactions contemplated by this Agreement;
(c) A certificate dated as of a recent date from the Delaware Secretary of
State as to the good standing of Comdial; and
(d) Such other documents, instruments, certificates and writings as reasonably
may be requested by ePHONE at least three business days prior to Closing.
8
ARTICLE 9.
MISCELLANEOUS PROVISIONS
Section 9.1 Obligations of Comdial. Comdial hereby guarantees the complete and
timely performance of the obligations of Array under this Agreement. Comdial
agrees that if Array defaults in any of its obligations under this Agreement,
ePHONE may exercise any remedies available to it to require Comdial to satisfy
such Array obligations without first being required to seek performance of such
obligations from Array.
Section 9.2 Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given (i) upon
confirmation of receipt of facsimile; (ii) one (1) business day following the
date sent when sent by overnight delivery; or (iii) five (5) business days
following the date mailed when mailed by registered or certified mail return
receipt requested and postage prepaid to the following address:
If to Array or Comdial:
Comdial Corporation
Attention: William G. Mustain
1180 Seminole Trail
Charlottesville, Virginia 22906
Phone: (804) 978-2518
Fax: (804) 978-2512
Email: bill.mustain@comdial.com
Copy to:
McGuire, Woods, Battle & Boothe LLP
Attention: Robert E. Stroud, Esquire
Court Square Building
310 Fourth Street NE, Suite 300
Post Office Box 1288
Charlottesville, Virginia 22902-1288
Phone: (804) 977-2511
Fax: (804) 980-2272
Email: restroud@mwbb.com
9
If to ePHONE:
ePHONE Telecom, Inc.
Attention: Robert G. Clarke
355 Burrard Street, Suite 1000
Vancouver, British Columbia
Canada V6C 2G8
Facsimile No.: (202) 942-5999
Phone: (604) 482-6116
Fax: (604) 482-1116
Email: rclarke@ephonetel.com
Copy to:
Arnold & Porter
Attention: Paul D. Freshour
555 Twelfth Street, N.W.
Washington, D.C. 20004-1202
Phone: (202) 942-5872
Fax: (804) 942-5999
Email: paul_freshour@aporter.com
Section 9.3 Arbitration
(a) Any dispute, controversy or claim arising under, out of or
relating to the Agreement or the License Agreement (any "Dispute"),
shall be solely, finally and conclusively settled by arbitration in
accordance with the Commercial Arbitration Rules (the "Rules") of the
American Arbitration Association (the "AAA") in force when such
arbitration is commenced. The arbitration shall take place in
Washington, D.C. The Dispute shall be decided in accordance with the
laws of the Commonwealth of Virginia. In the event that more than one
Dispute is pending at the same time, such Disputes shall be
consolidated in a single arbitral proceeding.
(b) In any dispute between the parties hereto, the number of
arbitrators shall be three. If the parties are unable to agree on the
arbitrators, the arbitrators shall be selected in accordance with the
Rules.
(c) The parties hereto intend that the provisions to arbitrate
set forth herein be valid, enforceable and irrevocable. The
arbitrator's award shall be final and binding upon the parties. The
parties shall carry out the final order on the award without delay and
waive their right to assert any form of recourse against, or objection
or defense to such order or its enforcement insofar as such waiver can
validly be made. Judgment upon the award may be entered by any court
having jurisdiction thereof or having jurisdiction over the parties or
their assets or application may be made for judicial acceptance of the
award and an order of enforcement, as the case may be.
10
(d) Each party to the arbitration proceeding shall pay the
fees and expenses of such party's attorney's and witnesses. The fees
and expenses of the arbitrator and all other expenses shall be borne by
the party that loses the arbitration. The parties agree that if it
becomes necessary for any party to enforce an arbitral award by a legal
action or additional arbitration or judicial methods, the party against
whom enforcement is sought shall pay all reasonable costs and
attorneys' fees incurred by the party seeking to enforce the award.
Section 9.4 Governing Law. This Agreement shall be governed in all respects, and
it and the transactions contemplated hereby shall be construed and interpreted,
by the laws of the Commonwealth of Virginia without regard to its choice of law
rules.
Section 9.5 Entire Agreement. This Agreement, including the Schedules, the
Business Plan of ePHONE and the Array Related Agreements attached hereto,
constitutes the entire agreement between the parties with respect to the subject
matter hereof, and supersedes all other prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof.
Section 9.6 Counterpart Copies. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 9.7 No Third Party Beneficiaries This Agreement shall not confer any
rights or remedies upon any person or entity other than the parties and their
respective successors and permitted assigns.
Section 9.8 Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. Any of the parties hereto shall be permitted to assign this
Agreement to a successor in interest of all or substantially all of its assets,
or to an affiliated entity.
Section 9.9 Amendments. No amendment of any provision of this Agreement shall be
valid unless the amendment shall be in writing and signed by all parties hereto.
Section 9.10 Waivers. No waiver by any party of any default, misrepresentation,
or breach of warranty or covenant hereunder, regardless of whether intentional,
shall be deemed to extend to any prior or subsequent default, misrepresentation,
or breach of warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent such occurrence.
Section 9.11 Severability. Any term or condition of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
11
Section 9.12 Construction. The parties have participated mutually in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted mutually by the parties and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any
of the provisions of this Agreement.
Section 9.13 Headings. The Article and Section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURES ARE ON THE NEXT PAGE]
12
IN WITNESS WHEREOF, each of the parties hereto has executed
this Agreement by its duly authorized officer as of the date first set forth
above.
ARRAY TELECOM CORPORATION
By:_______________________
Name:_____________________
Title:____________________
ePHONE TELECOM, INC.
By:_______________________
Name:_____________________
Title:____________________
COMDIAL CORPORATION
By:_______________________
Name:_____________________
Title:____________________
13