SERVICES AGREEMENT
This Services Agreement (the "Agreement"), effective as of December 1,
2000 is made and entered into by and between PRE-CELL SOLUTIONS, INC., a Florida
corporation ("Service Provider") and TRANS NATIONAL TELECOMMUNICATIONS, INC., a
Texas corporation ("Seller").
RECITALS:
WHEREAS, Service Provider's affiliate, Transnational Acquisition Corp.
("Affiliate"), and Seller have entered into that certain Agreement and Plan of
Merger (the "Agreement and Plan of Merger"), effective December 1, 2000, whereby
Affiliate will be merged with and into the Seller and upon consummation of such
merger Seller will become a wholly owned subsidiary of Affiliate's parent
company; and
WHEREAS, Service Provider and Seller are entering into this Agreement
whereby Service Provider will arrange to provide or provide certain services to
Seller on a fee basis from and after the effective date hereof.
NOW THEREFORE, in consideration of the promises and the terms and
conditions set forth herein, the parties hereto agree as follows:
ARTICLE I
SERVICES TO BE PROVIDED BY SERVICE PROVIDER TO SELLER
SECTION 1.01 Services to be Provided. (a) Subject to the terms and
conditions stated herein, until either termination of this Agreement pursuant to
Article II hereof or upon Closing as set forth in the Agreement and Plan of
Merger, Service Provider agrees to provide (or to cause an Affiliate reasonably
acceptable to Seller to provide) to Seller each of the services specified in
Schedule A hereto (the "Services").
(b) Service Provider and Seller acknowledge that there will be a
transition period for the Customer Accounts. Service Provider shall continue to
provide the same telecommunications services for such Customer Accounts as were
provided by Seller prior to the effective date of the closing (the
"Telecommunications Services").
(c) Use of Sellers Facilities and Records. Subject to the terms of this
Agreement, and of the Public Utility Commissions Rules and Regulations, Service
Provider shall be permitted to occupy and use offices and equipment of Seller to
allow Service Provider to fully carry out its objectives under this Agreement.
Service Provider shall also have full access to sales records files and other
information relating to the Seller's business.
SECTION 1.03 Agreement is Limited to the Services. Seller expressly
acknowledges that Service Provider's obligation to furnish services under this
Agreement is specifically limited to the Services and Telecommunications
Services as described in
Section 1.01 of this Agreement and creates no other obligation on the part of
Service Provider to provide any other services to Seller.
SECTION 1.04 Limitation on Liability. (a) Service Provider shall have
no liability to Seller, its officers, directors, employees, agents or customers
for a failure to render the Services or the Telecommunications Services unless
such failure is a result of Service Provider's gross negligence or willful
misconduct in connection with the rendering of the Services or the
Telecommunications Services, it being expressly understood and agreed that
Service Provider's only obligation with respect to negligent or other deficient
performance in connection with the rendering of the Services or the
Telecommunications Services shall be to re-perform same at no cost to Seller.
Notwithstanding the foregoing, Service Provider's aggregate liability to Seller
in respect of the Services and the Telecommunications Services in the event of
gross negligence or willful misconduct by Service Provider shall not exceed the
amount of fees paid by Seller to Service Provider pursuant to this Agreement
during the twelve months prior to the date of such failure; provided that if the
date of such failure occurs prior to the twelve month anniversary of the date
hereof, the aggregate liability shall not exceed an amount equal to the good
faith estimate of the fees to be paid during the first twelve months of this
Agreement, which estimate will be based on the aggregate amount of aggregate
fees received by Service Provider pursuant hereto at the time of such failure.
(b) Service Provider agrees to indemnify and hold Seller harmless from
and against all loss, damage or expense (including reasonable attorney's fees
and expenses) that Seller may incur or suffer from claims by third parties in
connection with a failure to render the Services or the Telecommunications
Services in accordance herewith.
(c) Seller agrees to indemnify and hold Service Provider harmless from
and against any and all loss, damage or expense (including reasonable attorney's
fees and expenses) that Service Provider may incur or suffer from claims by
third parties in connection with the Services and the Telecommunications
Services, except for any claims arising out of Service Provider's negligence.
(d) Both parties' rights to and obligations of indemnification set
forth in this Section 1.04 shall survive the expiration or termination of this
Agreement.
(e) Notwithstanding anything in this Agreement to the contrary, Service
Provider shall in no event be liable or responsible for its failure to carry out
any of its obligations under this Agreement caused by force majeure. The term
"force majeure" as used herein shall mean any cause beyond the control of
Service Provider, which by exercise of reasonable diligence, Service Provider is
unable to overcome, including, without limitation, the following: Acts of God,
fire, flood, landslide, lightning, earthquake, hurricane, tornado, storm, freeze
or drought; blight, famine, epidemic, or quarantine; strike, lockout, or other
labor difficulty; theft; casualty; accident; computer, telephone or other
equipment breakdown; the failure of a common carrier; failure or shortage of, or
inability to obtain from usual sources, goods, labor, equipment, information or
drawings, machinery, supplies, software, power, fuel, telephone or other data
communications
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services or material; embargo or injunction; litigation or
arbitration with suppliers and vendors; arrest; war; civil disturbance;
explosion' act of public enemies; or sabotage (each a "Force Majeure"). If
Service Provider is rendered unable to fulfill any obligation under this
Agreement by reason of a Force Majeure, Service Provider shall make reasonable
efforts to overcome such inability within a reasonable time.
SECTION 1.05 Quality of Services. (a) Service Provider represents to
Seller that the Services to be provided to Seller shall, in the aggregate, be of
the same quality and in the same manner of performance as such Services were
performed by Service Provider for itself prior to the effective date of the
closing.
(b) Service Provider agrees that Seller may, after giving advance
notice to Service Provider, assign personnel to monitor and review the Services
being provided by Service Provider to Seller pursuant to the terms of this
Agreement so as to ensure that Service Provider is providing Services hereunder
to Seller's satisfaction. Seller agrees that it will limit the number of
personnel assigned to these tasks so as not to disrupt the operations of Service
Provider.
ARTICLE II
TERM
SECTION 2.01 Term. The term of this Agreement shall commence as of
December 1, 2000 and continue through closing of the Agreement and Plan of
Merger unless otherwise Terminated as set forth herein.
ARTICLE III
REGULATORY
SECTION 3.01 Regulatory Requirements. Notwithstanding anything to the
contrary set forth in this Agreement. Seller shall maintain ultimate control
over the regulatory compliance. Service Provider shall control the day-to-day
operations of the Business.
SECTION 3.02 Termination for Change in Public Utility Commission Rules,
Regulations, or Policies. The parties believe that the terms of this Agreement
and the performance contemplated hereunder meet all the requirements of current
Public Utility Commission policy and agree that they shall negotiate in good
faith to meet any PUC concern with respect to it if they are incorrectly
interpreting current PUC policy or if that policy is modified. If the parties
cannot agree within a reasonable time to modification or modifications deemed in
good faith to be necessary by either party to meet PUC requirements either party
may terminate this Agreement upon written notice to other.
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ARTICLE IV
PAYMENTS
SECTION 4.01 Service Provider shall collect the net operating funds
from day-to-day operations as payment in full for the Services as described
herein. The Parties agree that in the event day-to-day operations generate an
operating loss, Service Provider shall absorb that loss and provide the funds
necessary to operate the Business.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01 Amendment and Modification. This Agreement may be amended,
modified or supplemented only by written agreement signed by both Seller and
Service Provider.
SECTION 5.02 No Third Party Beneficiaries. Nothing in this Agreement
shall confer any rights upon any person or entity which is not a party or a
permitted assignee of a party to this Agreement.
SECTION 5.03 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person, by cable, telegram or telex, telecopy,
courier, express mail delivery services or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties as
follows:
If to Seller to: if to Service Provider to:
Trans National Telecommunications, Inc. Pre Cell Solutions, Inc.
8626 Tesoro Dr. Suite 440 385 East Drive
San Antonio, Texas 78217 Melbourne, Florida 32904
Attn: Tim Selby Attn: Harry Christenson, CFO
With a copy to Legal Department With a copy to Legal Department
Or to such other address as the person to whom notice is given may have
previously furnished to others in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).
SECTION 5.04 Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. Neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by any
party hereto without the prior written consent of the other party.
SECTION 5.05 Governing Law. This Agreement shall be governed by the
laws of the State of Florida as to all matters, including, but not limited to,
matters of validity, construction, effect, performance and remedies, without
giving effect to the principles of choice of law thereunder.
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SECTION 5.06 Counterparts. 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 5.07 Interpretation. The article and section headings contained
in this Agreement are solely for the purpose of reference, are not part of the
Agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement.
SECTION 5.08 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.
SECTION 5.09 Commercially Reasonable Efforts. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use
commercially reasonable efforts to take, or cause to be taken, all action, and
to do, or cause to be done, and to assist and cooperate with the other party
hereto in doing, all things necessary, proper or advisable under applicable laws
and regulations to ensure that the agreements set forth herein are complied
with. In case at any time after the date hereof any further action is necessary
or desirable to carry out the purposes of this Agreement, each party hereto
shall take all such necessary action.
SECTION 5.10 Definitions. All capitalized terms used herein, which are
not otherwise defined herein, shall have the meanings ascribed to such terms in
the Agreement and Plan of Merger.
IN WITNESS WHEREOF, this Agreement has been duly executed by authorized
representatives of each party as of the date first above written.
SERVICE PROVIDER SELLER
By:______________________________ By: _________________________________
Printed Name: ___________________ Printed Name:________________________
Title:___________________________ Title:_______________________________
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SCHEDULE A
Services
Service Provider shall assume all day-to-day operations for the business.
Service Provider shall collect all Income, disperse all expenses, make all
decisions as to rates, pricing plans, marketing, customer service and support,
employee hires and fires, employee compensation and befits and all other aspects
of the daily operation of the business. The Service provider shall control all
assets of the business including acquisition and/or disposal thereof. The
Service Provider shall be responsible to adequately support or reduce the
Liabilities of Seller. Service Provider shall assume control of the operating
cash and all bank accounts of Seller and shall maintain a proper accounting of
the Seller's books and records according to GAPP.
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