In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write the index where the answer starts. If multiple answers seem to exist, write the index of the answer that is the most plausible. If multiple indices must be used to answer the question, the output should be a common separated list of indices.

Example Input: Exhibit 10.10   ASIA PACIFIC CABLE NETWORK 2     CONSTRUCTION AND MAINTENANCE   AGREEMENT     Singapore   April 18th, 2000





  TABLE OF CONTENTS   PARAGRAPH

    1 Definitions and Interpretations

      2 APCN 2 Configuration

      3 Establishment of the APCN 2 Management Committee

      4 Provision, Construction and Ownership of Segments

      5 Definition of APCN 2 Capital Costs

      6 Definition of Operation and Maintenance Costs

      7 Allocation and Billing of APCN 2 Costs

      8 Currency of Payment

      9 Keeping and Inspection of Books for Segment S and T

      10 Duties and Rights as to Operation and Maintenance of Segments

      11 Use of Segment T

      12 Acquisition and Use of Capacity

      13 Expansion of Equipped Capacity

      14 Increase or Decrease of Design Capacity

      15 Obligation to Provide Transiting Facilities to Extend APCN2 Capacity

      16 Obligation to Connect the APCN 2 with Inland Systems

      17 Direct Access to Network Interface and Equal Access to Terminal Station

      18 Duration of Agreement and Realization of Assets

      19 Obtaining of Approvals

      20 Privileges for Documents or Communications

      21 Relationship of Parties

      22 Assignment of Rights and Obligations

      23 Default

  1







  24 Waiver

      25 Compliance with Law

      26 Ratification of Decisions and Actions

      27 Resolution of Disputes

      28 Supplements and Amendments to this Agreement

      29 Execution of Agreement

      30 Successors Bound

      31 Confidentiality

      32 Settlement of Claims by Parties

      33 Force Majeure

      34 Severability

      35 Entire Agreement



Testamonium

  2





  SCHEDULES   Schedule A Parties to the Agreement     Schedule B Investment Shares, Ownership Interest, Voting Interests, and Allocation of Capital Cost and O&M Costs     Schedule C Capacity Allocation and Interest in Unallocated Capacity     Schedule D Sales of IRU Capacity         ANNEXES

    Annex 1 Terms of Reference for the Procurement Group     Annex 2 Terms of Reference for the AR&RSC, O&MSC, F&ASC and I&ASC     Annex 3 Terms of Reference for the Network Administrator     Annex 4 Terms of Reference for the Central Billing Party     Annex 5 Configuration of APCN 2     Annex 6 Billing Currency and Source of Rate for Financial Charges     Annex 7 Rules on Use of Capacity     Annex 8 Segment T Facilities and Functions   3





  ASIA PACIFIC CABLE NETWORK 2 CONSTRUCTION & MAINTENANCE AGREEMENT   THIS AGREEMENT, made and entered into this 18th day of April 2000, between and among the Parties signatory hereto (hereinafter collectively called Parties and individually called Party), which Parties are identified in Schedule A,   WITNESSETH:   WHEREAS, digital telecommunications services are being provided in the Asia Pacific Region by means of fiber optic submarine cable and satellite facilities; and   WHEREAS, other digital light-wave submarine cable systems, presently in service in the Asia Pacific Region, have facilitated a rapid growth of new telecommunications requirements designed to take advantage of reliable, secure and economically priced services based on state of the art and available digital technology; and   WHEREAS, it is now apparent that this rapid growth in traffic demand will lead to a greater demand for facilities in the Asia Pacific Region necessitating the construction of additional Asia Pacific fiber optic submarine cable facilities (hereinafter referred to as the Asia Pacific Cable Network 2 or APCN 2); and   WHEREAS, the reliability of telecommunications services and its usefulness to customers requires the availability of the appropriate facilities and technology, including the APCN 2 for diverse routing and instantaneous restoration of services; and   WHEREAS, China Telecom, CWHKTI, Chunghwa Telecom, Korea Telecom, Japan Telecom, NTT Com, KDD Corp., Telekom Malaysia, SingTel, and Telstra, (the MOU Parties) signed a Memorandum of Understanding to plan the APCN 2 effective from 16th June 1999 (hereinafter referred to as the MOU) to permit activities, as defined in the MOU; and   WHEREAS, the First Supplemental MOU, the Second Supplemental MOU, the Third Supplemental MOU and the Fourth Supplemental MOU were effective from October 5, 1999, October 6, 1999, February 29, 2000 and April 4, 2000 respectively; and   WHEREAS, the MOU and the Supplemental MOUs are hereinafter collectively called the MOU; and   WHEREAS, the MOU states that it shall continue in force until the signing, by the Parties, of the APCN 2 Construction and Maintenance Agreement; and   WHEREAS, the Parties now desire to construct the APCN 2 as a fully integrated Asia Pacific network comprised of 4 fully restorable fiber optic pairs; and   WHEREAS, the Parties now desire to define the terms and conditions upon which the APCN 2 will be provided, constructed, operated and maintained.   4





  NOW, THEREFORE, the Parties hereto, in consideration of the mutual covenants herein expressed, covenant and agree with each other as follows:   1. DEFINITIONS AND INTERPRETATIONS   1.1 The following definitions and interpretations shall apply to certain terms used in this Agreement:   (a) Affiliate: A company is the Affiliate of another if either company owns directly or indirectly less than 50% but no less than 10% of its equity.   (b) Branching Unit (BU): Equipment that permits interconnection between 3 cable Segments and provides the optical fiber and power conductor between 3 cable Segments.   (c) Cable Landing Point: Cable Landing Point shall be the beach joint or the mean low watermark of ordinary spring tides if there is no beach joint.   (d) Capacity Types shall be categorized as follows:   Allocated Capacity - capacity allocated in the APCN 2 to a Party in return for its financial investment.       Design Capacity - the maximum capacity that the APCN 2 is designed to provide which shall be no less than 2.5 Tbit/s.

      Equipped Capacity - the amount of capacity physically provided in the APCN 2 at any one time.       Initial Equipped Capacity - Initial Equipped Capacity of the APCN 2 shall be at least 80Gbit/s.       IRU Capacity - capacity acquired after execution of this Agreement on an IRU basis from the Unallocated Capacity.

      Unallocated Capacity - the difference in capacity between the Equipped Capacity and the Allocated Capacity.

  (e) Carrier: Any entity authorized or permitted under the laws of its respective Country, or another Country in which it operates, to acquire and use international transmission facilities for the provision of international telecommunications services and which is in possession of any necessary operating license to enable it to do so.   (f) Country: The word Country as used in this Agreement shall mean a country, territory or place, as appropriate.   5





  (g) Direct Access: The direct connection to the Network Interface of Segment S without going through any other party's equipment.   (h) Initial Parties: The Initial Parties are Advantel, C&W, China Telecom, China Unicom, Concert Ltd, Chunghwa Telecom, CWHKTI, Global One, JT, KDD, KPN, KT, Layer 2, MCIITI, MFN, NCIC, NTT Com, Onelink, PLDT, SingTel, StarHub, Teleglobe, Telstra, TFN, TM and Williams.   (i) IRU: Indefeasible Right of Use which does not convey ownership and voting rights in the management of the APCN 2.   (j) Minimum Investment Unit: A unit designated as the minimum unit of investment in the APCN 2, which is equivalent to one whole STM- 1 ring, allowing the use of two (2) half STM-1 ring circuits on any Path within the APCN 2. The Minimum Investment Unit is hereinafter termed as a MIU.   (k) Network Interface: The nominal STM-l digital/optical input/output ports, and/or STM-4, STM-16 and STM-64 on the digital/optical distribution frame (including the digital/optical distribution frame itself).   (l) Parent Company: A company that owns directly or indirectly no less than 50% of equity of a company.   (m) Path: The connectivity in the APCN 2 between any two Network Interfaces which is independent of the actual physical links used to connect these Network Interfaces.   (n) Provisional Acceptance: The issuance of a certificate of Provisional Acceptance shall be that of Segment S pursuant to the terms and conditions set forth in the Supply Contract.   (o) Ready For Provisional Acceptance Date: The date on which the entire Wet Segment of the APCN 2 is provisionally accepted by the Procurement Group on behalf of the Parties. The Ready for Provisional Acceptance Date (hereinafter referred to as the RFPA Date) shall be 31st August 2001, or such other date as may be agreed by the Management Committee.   (p) Ready for Service Date: The date on which commercial service can be placed on the entire APCN 2. For the purposes of this Agreement, the Ready For Service Date (hereinafter referred to as the RFS Date) shall be 30th September 2001, or such other date as may be agreed by the Management Committee.   (q) Subsidiary: A company that is directly or indirectly owned by a Parent Company holding no less than 50% of its equity.   6





  (r) Supply Contract: The contracts placed by the Procurement Group on behalf of the Parties for the supply of the Wet Segment of the APCN 2.   (s) Terminal Parties: The Terminal Parties are China Telecom, CWHKTI, Chunghwa Telecom, KDD, Korea Telecom, NTT Com, PLDT, SingTel, and Telekom Malaysia.   (t) Wet Segment: For the purposes of this Agreement, Segments S1, S2, S3, S4, S5, S6, S7, and S8 as defined below are collectively called the Wet Segment.   1.2 Schedules and Annexes   The Schedules and Annexes to this Agreement, and any written amendments thereto or any Schedules or Annexes substituted therefore, shall form part of this Agreement, and any Paragraph which contains a reference to a Schedule or Annex shall be read as if the Schedule or Annex was set out at length in the body of the Paragraph itself. In the event that there is any conflict between the terms and conditions of this Agreement and the Schedules and Annexes to this Agreement, the terms and conditions of this Agreement shall prevail.   1.3 Paragraph headings   The headings of the paragraphs are inserted for convenience and do not form part of this Agreement and shall not have any effect on the interpretation thereof.   1.4 Interpretation   Where the sense requires, words denoting the singular only shall also include the plural and vice versa. References to persons shall include firms and companies and vice versa. Reference to the male shall include the female.   2. APCN 2 CONFIGURATION   2.1 The configuration of APCN 2 shall be as shown in Annex 5, which shall be regarded as consisting of a terrestrial section (hereinafter called Segment T) and a submarine section (herein called Segment S or the Wet Segment).   2.2 Segment T shall be regarded as comprising of the following Segments:   Segment T1: A Terminal Station at Katong   Segment T2: A Terminal Station at Kuantan   Segment T3: A Terminal Station at Lantau   Segment T4: A Terminal Station at Chongming   7





  Segment T5: A Terminal Station at Pusan   Segment T6: A Terminal Station at Kitaibaraki   Segment T7: A Terminal Station at Chikura   Segment T8: A Terminal Station at Tanshui   Segment T9: A Terminal Station at Shantou   Segment T10: A Terminal Station at Batangas   2.3 Segments T1, T2, T3, T4, T5, T6, T7, T8, T9 and T10 shall each consist of:   (i) an appropriate share of land and buildings at the specified locations for the cable landing, Terminal Station and for the cable route including cable rights-of-way and ducts or conduits between the Terminal Station and its respective Cable Landing Point, and an appropriate share of common services and equipment at each of those locations together with equipment in each of those Terminal Stations and at a remote location as necessary which is solely associated with the APCN 2, but not part of the Wet Segment; and   (ii) An appropriate share of the test equipment.   2.4 Segment S shall be regarded as comprising of the following Segments:   Segment S1: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Katong; and the Network Interface at the Terminal Station at Kuantan.   Segment S2: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Kuantan; and the Network Interface at the Terminal Station at Lantau.   Segment S3: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Lantau; and the Network Interface at the Terminal Station at Chongming.   Segment S4: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Chongming; and the Network Interface at the Terminal Station at Pusan; and the Network Interface at the Terminal Station at Kitaibaraki.   8





  Segment S4A:

The whole of the submarine cable containing four (4) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Chongming and BU1.       Segment S4B:

The whole of the submarine cable containing two (2) optical fiber pairs provided between BU1 and BU2.       Segment S4C:

The whole of the submarine cable containing four (4) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Kitaibaraki and BU2.       Segment S4W:

The whole of the submarine cable containing two (2) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Pusan and BU1.       Segment S4E:

The whole of the submarine cable containing two (2) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Pusan and BU2.   Segment S5: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Kitaibaraki; and the Network Interface at the Terminal Station at Chikura.   Segment S6: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Chikura; and the Network Interface at the Terminal Station at Tanshui.   Segment S7: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Tanshui; and the Network Interface at the Terminal Station at Shantou.   Segment S8: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Shantou; and the Network Interface at the Terminal Station at Batangas; and the Network Interface at the Terminal Station at Katong.   9





  Segment S8A:

The whole of the submarine cable containing four (4) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Shantou and BU3.       Segment S8B:

The whole of the submarine cable containing two (2) optical fiber pairs provided between BU3 and BU4.       Segment S8C:

The whole of the submarine cable containing four (4) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Katong and BU4.       Segment S8N:

The whole of the submarine cable containing two (2) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Batangas and BU3.       Segment S8S:

The whole of the submarine cable containing two (2) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Batangas and BU4.   2.5 Segment S shall include:   (i) all transmission, power feeding, system management, Network Protection Equipment and test equipment directly associated with, and required to operate and maintain the submersible plant including, where applicable, a remote control and supervisory equipment;   (ii) the power equipment provided wholly for use with the equipment listed in (i) above;   (iii) the transmission cable equipped with appropriate optical amplifiers, BUs, and joint housings between the applicable Terminal Stations:   (iv) the sea earth cable and electrode system and/or the land earth system, or an appropriate share thereof, associated with the terminal power feeding equipment in the respective Terminal Stations; and   (v) terminal equipment, including Network Interface for STM-1, STM-4, STM-16 and STM-64 levels, in each of the Terminal Stations.   2.6 In this Agreement, references to any Segment, however expressed, shall be deemed to include, unless the context otherwise requires, additional property incorporated therein by agreement of the Management Committee. Each Segment shall be regarded as including   10





  its related spare and standby units and components, including, but not limited to, optical amplifiers, BUs, cable lengths, and terminal equipment.   11





  3. ESTABLISHMENT OF THE APCN 2 MANAGEMENT COMMITTEE   3.1 The Parties shall form an APCN 2 Management Committee (hereinafter referred to as the Management Committee), for the purpose of directing the progress of engineering, provision, installation, bringing into service and continued operation of the APCN 2, consisting of one representative of each of the Parties to this Agreement. The Management Committee shall make all major decisions necessary to effectuate the purposes of this Agreement.   3.2 Two or more Parties may designate the same Party to serve as their representative at specific meetings of the Management Committee and/or its Subcommittees established pursuant to Subparagraph 3.7 of this Agreement.   3.3 Each of the Initial Parties shall, on a rotational basis, provide the Chairman of the Management Committee which will meet on the call of a Chairman or whenever requested by one or more Parties together representing at least five per cent (5%) of the total voting interests specified in Schedule B. The Chairman shall give at least thirty (30) days' advance notice of each meeting, together with a copy of the draft agenda. In cases of emergency, such notice period may be reduced where at least seventy-five (75) percent of the total voting interests are in agreement. Documents for the meeting should be made available to members at least fourteen (14) days before the meeting, but the Management Committee may agree to discuss papers distributed on less than fourteen (14) days' notice.   3.4 The Management Committee shall make every reasonable effort to reach agreement with respect to matters to be decided. Unless otherwise provided for in this Agreement, in the event an agreement cannot be reached, the decision will be carried on the basis of simple majority of the total voting interests specified in Schedule B, which must include a simple majority of the voting interests of the Terminal Parties and a simple majority of the voting interests of the non-Terminal Parties. A member of the Management Committee representing more than one Party shall separately cast the votes to which each Party he represents is entitled.   3.5 Any Party not represented at a Management Committee meeting, but entitled to vote, may vote on any matter on the agenda of such a meeting by either appointing a proxy in writing or giving notice of such vote to the Chairman prior to the submission of such matters for vote at such meetings.   3.6 No decisions of the Management Committee, its Subcommittees or any other groups established by the Management Committee shall override any provisions of this Agreement or in any way diminish the rights or prejudice the interests granted to any Party under this Agreement.   3.7 To aid the Management Committee in the performance of its duties, the following Subcommittees shall be formed, and said Subcommittees, under the direction of the   12





  Management Committee, shall be responsible for their respective areas of interest listed in Annex 2 and any other areas of interest designated by the Management Committee:   (i) Investment and Agreement Subcommittee (hereinafter referred to as I&ASC)   (ii) Financial and Administrative Subcommittee (hereinafter referred to as F&ASC)   (iii) Operations and Maintenance Subcommittee (hereinafter referred to as O&MSC)   (iv) Assignments, Routing, and Restoration Subcommittee (hereinafter referred to as AR&RSC)   3.8 The Management Committee shall form a Procurement Group (hereinafter referred to as PG), consisting of representatives from each of the Initial Parties. This group shall act on behalf of the Parties to this Agreement for the purpose of arranging for the construction, implementation, and installation of the Wet Segment of APCN 2 and be solely responsible for all actions as may be required to contract with the Suppliers to provide the Wet Segment of the APCN 2. The Terms of Reference of the PG are contained in Annex 1.   3.9 The Management Committee may establish such other subcommittees or working groups as it shall determine within its discretion to provide assistance in the performance of its responsibilities. The PG and the Subcommittees shall meet at least once annually after the execution date of this Agreement and more frequently if necessary, until two years following the RFS Date and thereafter as may be appropriate. Meetings of the PG and a Subcommittee may be called to consider specific questions at the discretion of its Co-Chairmen whenever requested by one or more Initial Parties.   3.10 The respective Co-Chairmen of each Subcommittee, or a designated representative of each Subcommittee, shall attend the Management Committee meetings and meetings of each other Subcommittee in an advisory capacity as necessary. On or about two (2) years after the RFS Date, the Management Committee shall determine whether any of its Subcommittees should remain in existence. If the Management Committee determines that one or more of its Subcommittees shall not remain in existence, the responsibilities assigned to a Subcommittee whose existence has been terminated under this Subparagraph 3.10 shall revert to the Management Committee unless otherwise provided for in this Agreement.   3.11 The Terms of Reference for the Network Administrator (hereinafter referred to as NA) are as set forth in Annex 3 of this Agreement.   3.12 The Terms of Reference for the Central Billing Party (hereinafter referred to as CBP) are as set forth in Annex 4 of this Agreement. At or after the RFS Date the CBP shall be reappointed or a new CBP appointed from the Parties by an open tendering process.   3.13 The Terms of Reference of all Subcommittees, the NA, the CBP and the PG established pursuant to this Paragraph 3 shall be amended by the Management Committee as and when as it is necessary.   13





  4. PROVISION, CONSTRUCTION AND OWNERSHIP OF SEGMENTS   4.1 The following Parties shall own, provide and agree to act as the Terminal Parties for the following Segments;   SEGMENT

TERMINAL PARTY       T1

SingTel T2

TM T3

CWHKTI T4

China Telecom T5

KT T6

NTT Com T7

KDD T8

Chunghwa Telecom T9

China Telecom T10

PLDT   4.2 The Terminal Parties shall make available to the other Parties hereto any reasonable information requested by the Parties relating to the engineering, provision, construction, or installation of Segment T in a timely manner. The various Segment T shall be provided in sufficient time to permit APCN 2 to be placed into operation by the RFS Date.   4.3 Ownership of the Wet Segment shall be as shown in Schedule B to this Agreement. The Wet Segment of APCN 2 shall be owned by the Parties in common and undivided shares.   4.4 The provision of the Wet Segment shall be through a Supply Contract to be placed by the PG with Suppliers subject to approval by the Management Committee.   4.5 Each of the Parties shall be entitled, on request and at its own expense, to receive from the PG a copy of the Supply Contract subject to the acceptance by each such Party of any reasonable conditions of confidentiality imposed by the Supply Contract. 4.6 The PG shall ensure that the Supply Contract specifies that the Wet Segment is to be provided by the RFPA Date.   4.7 The PG shall ensure that the Supply Contract shall afford them or their designated representatives reasonable rights of access to examine, test, and inspect the APCN 2 cable equipment, material, supplies and installation activities.   4.8 In the event that the Wet Segment fails to meet the specifications referred to in the Supply Contract for its provision, fails to provide the specified capacity, or is not engineered, provided, installed and ready in sufficient time to meet the RFPA Date as specified in the Supply Contract, or if the Suppliers are otherwise in material breach of the Supply Contract, the PG may, pursuant to this Paragraph 4 and in accordance with the Supply Contract, take such actions as may be necessary to exercise the rights and   14





  remedies available under the terms and conditions of the Supply Contract. Such actions by the PG shall be subject to any direction deemed necessary by the Management Committee.   4.9 The members of the PG shall not be liable to any other Party or to each other for any loss or damage sustained by reason of a Supplier's failure to perform in accordance with the terms and conditions of its Supply Contract, or as a result of APCN 2 not meeting the RFPA Date as specified in the Supply Contract, or if APCN 2 does not perform in accordance with the technical specifications and other requirements of the Supply Contract, or APCN 2 is not integrated or placed into operation. The Parties recognize and agree that the PG does not make any representations or warranties, including, but not limited to, any representation or warranty regarding:   (i) the performance of the Supply Contract by the Supplier   (ii) the performance or reliability of the Wet Segment, or   (iii) that APCN 2 shall be integrated or placed into operation and the Parties hereby agree that nothing in this Agreement shall be construed as such a warranty or guarantee.   5. DEFINITION OF APCN 2 CAPITAL COSTS   5.1 The capital costs (herein referred to as the Capital Costs) are the costs incurred in connection with the engineering, provision, construction and installation of Segment S and Segment T, or causing them to be engineered, provided, constructed and installed and shall include:   (a) appropriate costs, including appropriate financial charges, incurred under the MOU in respect of specific activities such as desk top surveys and meeting expenses that are reasonably related to the construction of the APCN 2;   (b) those costs payable to the Supplier(s) under the Supply Contract attributable to the Wet Segment;   (c) the fixed costs and the additional Capital Costs to be reimbursed to the Terminal Parties for the provision of the Terminal Stations in accordance with the costs schedule and scope of work given in Annex 8;   (d) those costs directly incurred by the Initial Parties which shall be fair and reasonable in amount and not included in the Supply Contract and which have been directly and reasonably incurred solely for the purpose of, or to be properly chargeable in respect of, such engineering, provision, construction, installation and laying of the Wet Segment, including but not limited to, the costs of engineering, design, materials, manufacturing, procurement and inspection, installation, removing (with appropriate reduction for salvage), cable ship and other ship costs, burying, fisherman's compensation including reasonable related   15





  expenses, testing associated with laying or installation, customs duties, taxes (except income tax imposed upon the net income of a Party), appropriate financial charges, supervision, billing activities, overheads and insurance of or a reasonable allowance in lieu of insurance if such Party elects to carry a risk itself, being a risk which is similar to one against which a supplier has insured or against which insurance is usual or recognized or would have been reasonable;   (e) those fees payable to the NA, up to the RFS Date, in fulfilling its responsibilities as set forth in Annex 3;   (1) those fees payable to the CBP, up to the RFS Date, in fulfilling its responsibilities as set forth in Annex 4;   (g) those costs incurred, up to the RFS Date, by the custodians of the original, amendments and supplements to this Agreement, for distributing certified photocopies of this Agreement and/or amendments or supplements to the Parties to this Agreement;   (h) those costs reasonably incurred (as approved by the Management Committee) by the Parties, up to the RFS Date, hereto in the holding of' the meetings of the PG and I&ASC;   (i) those costs reasonably incurred (as approved by the Management Committee) by the Parties, up to the RFS Date, hereto in the hosting of the meetings of the Management Committee and its Subcommittees; and   (j) the costs associated with any additional work or property incorporated into the Segment S or Segment T subsequent to the RFS Date by agreement of the Management Committee.   5.2 For purposes of this Agreement, the cost of the repair or replacement of any part of the APCN 2 in the event of damage or loss arising during construction, laying, burying installing and the bringing into operation of the APCN 2, which is attributable under the Supply Contract to the Parties, shall be regarded as part of the Capital Costs.   5.3 Any of the Parties may at its own expense insure against risks so far as its own share of such costs is concerned. Should the Parties jointly agree to insure against risks, the costs of such insurance shall form part of the Capital Costs, as approved by the Management Committee.   16





  6. DEFINITION OF OPERATION AND MAINTENANCE COSTS   The costs associated with the operation and maintenance duties (herein called the O&M Costs) are the costs reasonably incurred in the operation and maintenance of Segment S and Segment T including, but not limited to:   (a) the cost of attendance, testing, adjustments, repairs and replacements, cable ships, (including standby costs), cable depots, maintenance and repair devices that are or may hereafter become available, customs duties, taxes, (except income tax imposed on the net income of a Party) paid in respect of such facilities, billing activities, financial charges attributable to other Parties, shares of costs incurred by a Terminal Parties, supervision, overheads and costs and expenses reasonably incurred on account of claims made by or against other persons in respect of such facilities or any part thereof and damages or compensation payable by the Parties concerned on account of such claims;   (b) those costs incurred by the Terminal Parties, including additions thereto, with respect to the operation and maintenance of their respective Terminal Stations, allocable to the APCN 2. Where the use of a Terminal Station or of certain equipment situated therein, such as power supply or testing and maintenance equipment, is shared, by agreement of the Parties, by the APCN 2 and other communications systems terminating at that Terminal Station, the costs of operation and maintenance of such shared Terminal Station or equipment (not solely attributable to a particular communication system or systems) will be allocated among the systems involved in the proportions in which they use the shared equipment or facility. For such purposes, the Management Committee shall approve the method for determining the portion of a shared Terminal Station allocable to the APCN 2. Costs as used in this Paragraph 6 with reference to each of the Terminal Stations shall include costs reasonably incurred in operation and maintenance of the facilities involved, including, but not limited to, the cost of attendance, testing, adjustments, repairs and replacements, customs duties, taxes (except income tax imposed upon the net income of a Party) paid in respect of such facilities, billing activities, administrative costs, financial charges, and costs and expenses reasonably incurred on account of claims made by or against other persons in respect of such facilities or any part thereof and damages or compensation payable by the Terminal Station owner on account of such claims;   (c) those fees payable to the NA, after the RFS Date, in fulfilling its responsibilities as set forth in Annex 3;   (d) those fees payable to the CBP after the RFS Date, in fulfilling its responsibilities as set forth in Annex 4;   17





  (e) those costs reasonably incurred (as approved by the Management Committee) by the Parties, after the RFS Date, hereto in the holding of the meetings of the PG and the I&ASC; and   (f) those costs reasonably incurred (as approved by the Management Committee) by the Parties, after the RFS Date, hereto in the hosting of the meetings of the Management Committee and its Subcommittees.   7. ALLOCATION AND BILLING OF APCN 2 COSTS   7.1 The APCN2 Capital Costs as defined in Paragraph 5 shall be borne by the Parties in the proportions set forth in Schedule B.   7.2 The O&M Costs as defined in Paragraph 6 shall be borne by the Parties in the proportions set forth in Schedule B.   7.3 The Terminal Parties shall each render invoices to the CBP for any O&M Costs incurred as outlined in Paragraph 6 not more frequently than quarterly and by the tenth (10th) day of the appropriate month in accordance with procedures to be established by the F&ASC and approved by the Management Committee. The Party rendering an invoice shall furnish such further details of such invoice as the other Parties may reasonably require. On the basis of such invoices, the CBP shall pay such amounts as may be owed sixty (60) days from the 10th calendar day of the month in which the invoice was rendered or on the following working day if day sixty (60) is not a working day in the CBP's Country.   7.4 The Terminal Parties shall each render invoices to the CBP for any Capital Costs incurred as outlined in Paragraph 5 (except Terminal Station cost) not more frequently than quarterly and by the tenth (10th) day of the appropriate month in accordance with procedures to be established by the F&ASC and approved by the Management Committee. The Party rendering an invoice shall furnish such further details of such invoice as the other Parties may reasonably require. On the basis of such invoices, the CBP shall pay such amounts as may be owed sixty (60) days from the 10th calendar day of the month in which the invoice was rendered or on the following working day if day sixty (60) is not a working day in the CBP's Country.   7.5 Unless the Management Committee authorizes changes to the procedure for the rendering of bills associated with the Capital Costs or O&M Costs, the CBP shall promptly render bills, in accordance with this Paragraph 7 and the billing and payment procedures established by the F&ASC and approved by the Management Committee, to each of the Parties for such Parties' pro rata shares of these costs. Such bills shall be rendered by the CBP not more frequently than quarterly and shall contain a reasonable amount of detail to substantiate them. On the basis of such bills, each Party shall pay the CBP, such amounts as may be owed by the end of the calendar month following the calendar month in which the bill was rendered, on the date specified by the CBP.   18





  7.6 In the case of bills containing costs billed on a preliminary billing basis, appropriate adjustments will be made in subsequent bills promptly after the actual costs involved are determined. As soon as practicable the CBP shall make such adjustments and render such bills or arrange for such credits as appropriate due to changes in the cost actually incurred.   7.7 As soon as practicable after the RFS Date, the amount of each Party's share of the Capital Costs shall be computed by the CBP who shall make appropriate adjustments and render any necessary bills or arrange for any necessary refunds by way of final settlement in order that each Party may bear its proper share of the costs as provided in this Paragraph 7.   7.8 For purposes of this Agreement, financial charges shall be computed as applicable on a daily basis from the date payment is incurred until the date payment is due, at a rate equal to the lowest publicly announced prime rate or minimum commercial lending rate, however described, for 90 day loans in the currencies of the Initial Parties or the currency of billing, as applicable, charged by established commercial banks in the countries concerned on the fifteenth day of the month in which the costs were incurred by the invoicing Parties. If such a day is not a business day, the rate prevailing on the next business day shall be used. The source of the rate of such financial charges shall be as shown at Annex 6. The application of financial charges relating to costs incurred for the APCN 2 Capital Costs and O&M Costs shall be limited to a maximum of 120 days, unless otherwise approved by the Management Committee.   7.9 Amounts billed and not paid when due shall accrue extended payment charges from the day following the date on which payment was due until paid. If the due date is not a business day, the due date shall be postponed to the next business day. For the purpose of this Agreement, extended payment charges shall be computed at three hundred percent (300%) of the rate described in Subparagraph 7.8 on the day following the date payment on the bill was due. In the event that applicable law does not allow the imposition of extended payment charges at the rate established in accordance with this Subparagraph 7.9, extended payment charges shall be at the highest rate permitted by applicable law, which in no event shall be higher than the rate computed in accordance with this Subparagraph 7.9. For purposes of this Agreement, paid shall mean that the funds are immediately available for use by the recipient.   7.10 Credits for refunds of financial charges and bills for extended payment charges shall not be rendered if the amount of charges involved is less than the equivalent of one hundred ($100) US dollars or its equivalent in the billing currency.   7.11 A bill shall be deemed to have been accepted by the Party to whom it is rendered if that Party does not present a written objection on or before the date when payment is due. If such objection is made, the Parties concerned shall make every reasonable effort to settle promptly the dispute concerning the bill in question. If the objection is sustained and the billed Party has paid the disputed bill, the agreed upon overpayment shall be promptly refunded to the objecting Party by the invoicing Party together with any financial charges   19





  calculated thereon at a rate determined in accordance with Subparagraph 7.8 of this Agreement from the date of payment of the bill to the date on which the refund is transmitted to the objecting Party. If the objection is not sustained and the billed Party has not paid the disputed bill, said Party will pay such bill promptly together with any extended payment charges calculated thereon at a rate determined in accordance with Subparagraph 7.9 of this Agreement from the day following the day on which payment was due until paid. Nothing in this Subparagraph 7.11 shall relieve a Party from paying those parts of a bill that are not in dispute.   7.12 Upon the signing of this Agreement, the CBP shall render bills to the Parties for approximately five percent (5%) of their financial commitment in APCN2 as determined by Schedule B. The exact amount of the bills and the billing procedure shall be determined by the Management Committee. The funds received by the CBP from these bills shall be kept in an interest bearing account for the benefit of the Parties to be maintained by the CBP and the used solely and in their entirety to pay the first invoices received by the CBP.   8. CURRENCY OF PAYMENT   All invoices rendered to the CBP shall be in the currency of the United States, or in the currency of the invoicing Party which is specified in Annex 6 or the currency in which the cost was incurred in the case of O&M Costs. Such invoices shall be paid in the currency in which the invoices are rendered. The CBP shall render bills to the Parties in the currency of the United States and be paid in the same currency. In conjunction with the CBP, the F&ASC shall develop procedures to deal with the differences between the exchange rates in the circumstances when the currency of invoices rendered to the CBP is not the currency of the United States.   9. KEEPING AND INSPECTION OF BOOKS FOR SEGMENT S AND T   9.1 For those portions of the Wet Segment, if any, specified in the Supply Contract as cost incurred items, the PG shall ensure that the Supply Contract requires the Supplier to keep and maintain such books, records, vouchers and accounts of all such costs with respect to the engineering, provision and installation of those items for a period of five (5) years from the RFPA Date of the Wet Segment, as specified in the Supply Contract.   9.2 For those portions of the Wet Segment specified in the Supply Contract as fixed cost items, the PG shall ensure that the Supply Contract requires the Supplier to keep and maintain records with respect to their respective billing of those items for a period of five (5) years from the RFPA Date of the Wet Segment, as specified in the Supply Contract.   9.3 The PG shall ensure that the Supply Contract requires the Supplier to obtain from their contractors and subcontractors such supporting records, for other than the cost of fixed cost items, as may be reasonably required by Subparagraph 9.1 and to keep and maintain such records for a period of five (5) years from the RFPA Date of the Wet Segment, as specified in the Supply Contract.   20





  9.4 The PG shall ensure that the Supply Contract shall afford the Parties to this Agreement the right to review the books, records, vouchers, and accounts required to be kept, maintained, and obtained pursuant to Subparagraphs 9.1, 9.2 and 9.3.   9.5 With respect to costs incurred for the provision of the Wet Segment by a Party, comparable records to those specified in Subparagraphs 9.l, 9.2 and 9.3 as appropriate, shall be maintained by the Party for a period of five (5) years from the date that such costs were incurred.   9.6 The PG and the Terminal Parties shall each keep and maintain such books, records, vouchers, and accounts of all costs that are incurred in the engineering, provision and installation of the Wet Segment and Segment T and not included in the Supply Contract, which they incur directly, for a period of five (5) years from the RFS Date or the date the work is completed, whichever is later. The CBP shall keep and maintain such books, records, vouchers and accounts with respect to its billing of costs incurred by the Terminal Parties and any other Party having incurred costs for implementation of APCN 2 as authorized by the Management Committee, and costs billable under the Supply Contract for a period of five (5) years from the System RFS Date or the date on which the work is completed, whichever is later.   9.7 With respect to the operation and maintenance costs of Segments T and the Wet Segment, such books, records, vouchers, and accounts of costs, as are relevant, shall be kept and maintained by the Terminal Parties for a period of five (5) years from the date on which the corresponding bills are rendered to the Parties. If a Terminal Party does not retain these records beyond this period, a summary of important items should be retained for the life of APCN 2.   9.8 Any Party shall have the right to review or audit the relevant books, records, vouchers, and accounts of costs pursuant to this Paragraph 9. In affording the right to review or audit, any such Party whose records are being reviewed or audited shall be permitted to recover, from the Party or Parties requesting the review or audit, the entire costs reasonably incurred in complying with the review or audit. In the case of an audit initiated by the Management Committee and exercised by the F&ASC, the audited Party or Parties shall be permitted to recover the entire costs of the review or audit from the Parties in the proportions specified in Schedule B.   9.9 Any rights of review and audit pursuant to this Paragraph 9 shall only be exercisable through the F&ASC in accordance with the F&ASC's audit procedures.   10. DUTIES AND RIGHTS AS TO OPERATION AND MAINTENANCE OF SEGMENTS   10.1 Each Terminal Party shall be solely responsible for the operation and maintenance of their respective Segment T as identified in Paragraph 4 and that portion of Segment S between the Network Interface at the Terminal Station and their respective Cable   21





  Landing Point. Such Terminal Party shall use all reasonable efforts to maintain or cause to be maintained economically their respective Segment T and such portion of Segment S, in efficient working order.   10.2 The Terminal Parties (for the purposes of this Paragraph 10, collectively called the Maintenance Authorities and each individual called a Maintenance Authority or MA), shall be jointly responsible for the operation and maintenance of the Wet Segment and shall use all reasonable efforts to maintain economically the Wet Segment in efficient working order and with an objective of achieving effective and timely repairs when necessary.   10.3 Prior to the RFS Date the MAs shall submit for review by the O&MSC and approval by the Management Committee appropriate practices and procedures for the continued operation and maintenance of the Wet Segment. The MAs shall each provide information to the O&MSC regarding the practices and procedures for the continued operation and maintenance of their respective Segments. The MAs shall also furnish such budgetary estimates of the cost of such operation and maintenance of the APCN 2 as the Management Committee may reasonably request. Following the RFS Date, the MAs shall provide the O&MSC and the Management Committee with such reports as it may reasonably require on the operation of the APCN 2 including any proposals for planned repair or improvement work, together with appropriately revised budgetary estimates relating to the operation and maintenance of the APCN 2. The O&MSC may review and amend the practices and procedures for the operation and maintenance of the Wet Segment, subject to the approval of the Management Committee. To facilitate in the maintenance of the APCN 2, the MAs may revise the allocation of responsibilities amongst themselves for the Wet Segment between the Cable Landing Points and any such decision shall be subject to the approval of the Management Committee.   10.4 The MAs shall have the right to deactivate the Wet Segment or any part thereof, in order to perform their duties. Prior to such deactivation, reasonable notice shall be given to, and coordination shall be made with, the other Parties hereto. To the extent possible, sixty (60) days prior to initiating action, the MA involved shall advise the other Parties hereto in writing of the timing, scope, and costs of significant planned maintenance operations, of significant changes to existing operations and maintenance methods and of contractual arrangements for cable ships that will have a significant impact on operation or maintenance costs. Should one or more Parties representing at least two- thirds (66.67%) of the total voting interests in accordance with Schedule B, wish to review such an operation or change prior to its occurrence, such Party or Parties shall notify the appropriate Maintenance Authority and a O&MSC Co-Chairman in writing within thirty (30) days of such advice. Upon such notification, the O&MSC shall initiate action to convene an ad hoc meeting for such review.   10.5 Notwithstanding Paragraph 32, each MA shall be authorized to pursue claims in its own name, on behalf of the Parties, in the event of any damage or loss to the APCN 2 and may file appropriate lawsuits or other proceedings on behalf of the Parties. The MA shall immediately inform the Management Committee and comply with any direction   22





  therefrom. Subject to obtaining the prior concurrence of the Management Committee, a MA may settle or compromise any such claims and execute releases and settlement agreements on behalf of the Parties as necessary to effect a settlement or compromise.   10.6 Each Party that has designed or procured equipment used in the APCN 2 shall give necessary information relating to the operation and maintenance of such equipment to the MA responsible for operating and maintaining such equipment, as reflected in this Paragraph 10. Each Maintenance Authority shall have prompt access necessary for the performance of its   10.7 [Missing]   interruption. if the MA responsible, as specified in this Paragraph 10, fails to restore those facilities to efficient working order and operation within a reasonable time after having been called upon to do so by any other Party to whom capacity is assigned by this Agreement, the Management Committee may, to the extent that it is practical to do so, place, or cause to be placed, such facilities in efficient working order and operation and charge the Parties their proportionate shares of the costs reasonably incurred in doing so.   10.8 Each Party to this Agreement, at its own expense, shall have the right to inspect from time to time the operation and maintenance of any portion of the APCN 2 and to obtain copies of the maintenance records. For this purpose, the Maintenance Authority shall retain significant records, for a period of not less than five (5) years from the date of the record. If these records are destroyed at the end of this period, a summary of important items should be retained for the life of the APCN 2.   10.9 The MAs shall be entitled to establish the necessary agreements in respect of the crossings by the Wet Segment of other undersea plant, including but not limited to pipelines, and may sign these agreements on behalf of the Parties after approval by the Management Committee and shall provide the Parties with appropriate copies of these agreements on request.   11. USE OF SEGMENT T   11.1 The Terminal Parties hereby grant to the Parties accessing APCN 2 at their respective terminal station, the right of use in the relevant Segment T (hereinafter referred to as Terminal Station Right of Use) on the terms and conditions stated in this Paragraph 11, to the extent required for the use of its Allocated Capacity, for the purpose of using APCN 2 and carrying on the related activities at that location in accordance with this Agreement. This Terminal Station Right of Use shall commence on the RFS Date and shall continue for the duration of this Agreement.   11.2 In the event that an agreement for another cable system utilizing any Terminal Station of the APCN 2 is terminated prior to the termination of this Agreement, the owner of the respective Segment T, with the agreement of the Parties hereto, shall take all necessary   23





  measures to ensure that the Terminal Station in question will be available for the APCN 2 for the duration of this Agreement on fair and equitable terms. If the Terminal Station in question is not available for the landing and terminating of the APCN 2 for any reason, the owner of the Terminal Station shall provide reasonable advance notice to all Parties and such owner, in agreement with the Parties hereto, shall take all necessary measures to ensure that another appropriate Terminal Station will be available for the APCN 2 for the duration of this Agreement on terms and conditions similar to those contained in this Agreement. Applicable costs to the Parties will be determined by the Management Committee.   11.3 For each Terminal Station Right of Use, the Parties hereto shall not be required to pay any additional charges over and above the Capital Costs and O&M costs.   11.4 Notwithstanding Subparagraph 11.1 of this Agreement, a Party thereby granted a Terminal Station Right of Use interest in Segment T may, prior to the commencement of that Terminal Station Right of Use interest, elect to renounce its Terminal Station Right of Use entitlement and to instead have use of any Segment T for the duration of this Agreement on such terms and conditions as are agreed between that Party and the relevant Terminal Party, and in such event the provisions of Subparagraphs 11.1 of this Agreement shall apply in relation to such use except insofar as they may be modified by such agreements. This Subparagraph 11.4 shall not operate to confer on a Party any financial or other benefit of substance to which that Party would not otherwise be entitled under this Agreement.   11.5 The Terminal Parties agree to grant a Terminal Station Right of Use to APCN 2 IRU purchasers.   11.6 In the event of a sale or other disposition of Segment T1, T2,T3, T4, T5, T6, T7, T8, T9 and T10, or part thereof prior to the termination of this Agreement, the owner shall share with the other Parties hereto any net proceeds, or costs, of such sale or disposition received, or expended, by the owner, to the extent allocable to the Capital Costs, in the proportions set forth in Schedule B.   12. ACQUISITION AND USE OF CAPACITY   12.1 Capacity of APCN 2 can only be used by a carrier.   12.2 Parties shall obtain Allocated Capacity in the form of MIU on an ownership basis as shown in Schedule C, in return for their financial investment as identified in Schedule B.   12.3 Procedures for Parties activation of their Allocated Capacity will be developed by the AR&RSC and the NA for Management Committee approval.   24





  ASSIGNMENT OF CAPACITY   12.4 For each MIU of its Allocated Capacity, a Party is allowed to assign two (2) half STM-l circuits on any Path within the APCN 2. All such circuits are ring-protected. Additional ring-protected half STM-1 circuits may be granted proportionately to a Party's Allocated Capacity as shown in Schedule C at the discretion of the Management Committee according to the recommendation of the AR&RSC and the NA.   12.5 The Parties may designate a portion of their Allocated Capacity in specific Paths of the APCN 2 as:   (i) Jointly Assigned Circuit (hereinafter referred to as JAC) which shall be considered as consisting of two half STM-I circuits, with one half STM-1 circuit assigned to a Party, which together with the corresponding half STM-1 circuit, shall be used for the provision of international telecommunications services between such a Party and another Carrier that has received the right of use pursuant to this Paragraph 12 or an APCN 2 IRU purchaser. Any alteration to the JAC is subject to bilateral agreement between both Carriers.   (ii) Wholly Assigned Circuit (hereinafter referred to as WAC) which shall be considered as consisting of two half STM-1 circuits assigned to one Party.   USE OF WHOLLY ASSIGNED CIRCUIT   12.6 A Party is allowed to use its WAC for the provision of international telecommunications services with itself, its Subsidiary, its Parent Company and/or the Subsidiary of the Party's Parent Company provided that the correspondent parties are also Carriers.   12.7 A Party is also allowed to use its WAC to interconnect with other communication systems for the provision of international telecommunications services terminating outside the APCN 2 landing Countries. If such WAC is originated from any APCN 2 landing Country, such Party must be a Carrier of that Country.   12.8 A Party is also allowed to use its WAC for the provision of international telecommunications services with its Affiliate and/or the Affiliate of the Party's Parent Company provided that this Affiliate is a Carrier and a cash contribution is made by the Party to a special fund dedicated solely to fund future upgrades to increase the Equipped Capacity. The amount of the contribution is described in Annex 7.   PORTABILITY OF CAPACITY   12.9 A Party is allowed to de-assign its JAC and/or WAC to its Allocated Capacity provided that bilateral agreement is given by the concerned Camera and according to the guidelines to be developed by the AR&RSC and the NA.   12.10 Re-assignment of Allocated Capacity which resulted from the de-assignment of the JAC and/or WAC shall give priority to the assignment of Allocated Capacity which has not   25





  been de-assigned before, in the event that there is any conflicting requirement for use of capacity on the APCN 2.   12.11 Under no circumstances shall a Party's JAC and/or WAC be de-activated due to the assignment of other Parties' Allocated Capacity.   TRANSFER OF CAPACITY   12.12 For the purpose of this Agreement, Transfer of capacity (hereinafter called Transfer) is the making available of all the right of use of the capacity being made available that is accorded to a Party by this Agreement to a third party without transferring the Party's other obligations and rights including the right of Transfer.   12.13 Transfer of a Party's Allocated Capacity to its Subsidiary or its Parent Company or the Subsidiary of the Party's Parent Company is allowed provided that the capacity transferred is in multiples of the MIU and that the recipient of the transferred capacity is a Carrier.   12.14 Transfer of a Party's Allocated Capacity to its Affiliate and/or the Affiliate of the Party's Parent Company is also allowed provided that the capacity transferred is in multiples of the MIU and that the recipient of the transferred capacity is a Carrier. For the Transfer to an Affiliate, the transferring party shall make a cash contribution to a special fund dedicated solely to fund future upgrades to increase the Equipped Capacity. The amount of the contribution is described in Annex 7.   12.15 The conditions applicable to the use and Transfer of capacity as specified in Annex 7 shall be relaxed after the Equipped Capacity is expanded to four (4) times of Initial Equipped Capacity or two (2) years after the RFS date whichever comes first unless an earlier date is approved by the Management Committee. Any relaxations on these conditions shall be approved by a vote of the members of the Management Committee representing at least seventy-five percent (75%) of the total voting interests as specified in Schedule B.   12.16 The Unallocated Capacity in the APCN 2 shall be owned by the Parties in common and undivided shares in accordance with the percentages in Schedule C.   12.17 IRU Capacity will be sold at the MJU level. Such IRU Capacity will be sold from the Unallocated Capacity. Proceeds from the sale of such IRU Capacity shall be used to fund the Expansion of the APCN 2 Equipped Capacity.   12.18 A Party or IRU purchaser may use its MIU with itself, another Party, or IRU purchaser to form matched circuits.   12.19 The distribution of capacity from the initial Unallocated Capacity shall be made no later than three (3) years from the RFS date on a pro rata basis, in MIUs, in accordance with the percentages in Schedule C. The exact time to implement such distribution of capacity   26





  shall be decided by a vote of members of the Management Committee representing at least two-thirds (66.67%) of the total voting interests as specified in Schedule B.   12.20 Once the Equipped Capacity is expanded to six (6) times of Initial Equipped Capacity or three (3) years after the RFS date whichever comes first unless an earlier date is approved by the Management Committee, any Party is entitled to sell IRU to other Carriers from its Allocated Capacity on a private basis without any restrictions except that the IRU shall be for the life of APCN 2. The terms and conditions including pricing of such private IRU sales are bilateral matters between granting Party and purchaser.   12.21 When Unallocated Capacity is depleted, and during the period until the availability of additional Unallocated Capacity, a Party may be allowed to sell IRU to other Carriers from its Allocated Capacity privately subject to the Management Committee's approval on a case by case basis. The terms and conditions including pricing of such private IRU sales are bilateral matters between granting Party and purchaser.   12.22 Notwithstanding any other provisions in this Paragraph 12, when the Equipped Capacity is expanded to six (6) times of Initial Equipped Capacity or three (3) years after the RFS date whichever comes first, any Party is entitled to make available any of its Allocated Capacity for use by other Carriers on any commercial basis without any restrictions.   12.23 Guidelines for use of the IRU Capacity and Terms and Conditions of the IRU agreement shall be developed by the I&ASC and approved by a vote of members of the Management Committee representing at least two-thirds (66.67%) of the total voting interests as specified in Schedule B. The NA shall be authorized to execute IRU agreements for one or more whole MIUs with APCN 2 IRU Capacity purchasers on behalf of the Parties to this Agreement. No provisions of the IRU agreement shall override the provisions of this Agreement.   12.24 Schedules B, C, and D shall be modified by the NA, as appropriate, to reflect any revised ownership of capacity or sales of IRU Capacity pursuant to this Paragraph 12.   12.25 The Management Committee may authorize use of the Unallocated Capacity for restoration of telecommunications services and other purposes. The terms and conditions of such use shall be determined by the Management Committee based, in part, on terms to be agreed to by the relevant Terminal Parties of the APCN 2, in recognition of the technical and operational impact on the Terminal Station operations. Parties will receive revenues in accordance with Schedule C.   12.26 The communications capability of any capacity may be optimized by the Parties to whom such capacity is allocated by the use of equipment which will more efficiently use such capacity provided that the use of such equipment does not cause an interruption of, or interference, impairment, or degradation to, the use of any other capacity in the APCN 2 or prevent the use of similar equipment by other Parties. A Party to whom capacity is allocated shall permit the use of such equipment by a Carrier to which such Party has   27





  made available the use of any such capacity, provided that such Carrier agrees that its use of the equipment will satisfy the conditions set forth in this Subparagraph 12.26.   12.27 A Party may sell capacity in fascicles smaller than a STM-1 in the APCN 2 at any time on any basis other than by transfer of ownership. The APCN 2 shall not be responsible for aggregating such capacity to the STM-1 level.   13. EXPANSION OF EQUIPPED CAPACITY   13.1 Any upgrade of Equipped Capacity of APCN 2, including any costs, financial adjustments and allocation of capacity associated with such upgrade, shall be approved by vote of members of the Management Committee representing at least two-thirds (66.67%) of the total voting interests as specified in Schedule B.   13.2 All Parties shall have the might to a pro-rata share of the upgrade capacity in accordance with Schedule C. However, no Party shall be forced to participate in such an upgrade. Parties not   14. INCREASE OR DECREASE OF DESIGN CAPACITY   14.1 In the event that the Initial Parties consider that it is beneficial to increase the Design Capacity of APCN 2, a Design Capacity expansion, including any costs, financial adjustments and allocation of capacity associated with such upgrade, shall be decided by the Management Committee representing at least two-thirds (66.67%) of the total voting interests as specified in Schedule B. However, no Party shall be forced to participate in such an upgrade, in the event that incremental funding is required to execute such an upgrade. Schedules B and C shall be appropriately modified to reflect the revisions associated with such increase of Design Capacity.   14.2 In the event that the capacity which APCN 2 or any Segment thereof is capable of providing is reduced below the capacity required to support the Allocated Capacity on its existing or planned routings as a result of physical deterioration, or for other reasons beyond the control of the Parties, the Management Committee shall initiate a review of the capacity routings, in order to support the rerouting of such Allocated Capacity.   14.3 In the event that the capacity which APCN 2 or any Segment thereof is capable of providing is lower than the capacity needed to support the routing of circuits assigned in APCN 2, the Allocated Capacity of the Parties may be reduced or changed as necessary and agreed by the Parties affected, and financial adjustments shall be made among the Parties, as necessary, on the terms and conditions to be agreed by the Management Committee. The Schedules shall be modified, as appropriate, to reflect the revised Allocated Capacity associated with such decrease of the Design Capacity.   28





  15. OBLIGATION TO PROVIDE TRANSITING FACILITIES TO EXTEND APCN2 CAPACITY TO EXTEND APCN 2 CAPACITY   15.1 The Terminal Parties shall use all reasonable efforts to provide and maintain or cause to be provided and maintained in working order for the duration of this Agreement, the necessary transit facilities within their respective Countries as may be reasonably required for extending capacity in the APCN 2 so as to provide connections to the other international cables' transmission facilities.   15.2 The facilities provided pursuant to Subparagraph 15.1 shall be suitable for extending capacity in the APCN 2 of all payload types as defined in Subparagraph 15.3 and shall be furnished and maintained on terms and conditions which shall be no less favorable than those granted to another Carrier for transmission facilities of similar type and quantity transiting the location involved. Such terms and conditions shall not be inconsistent with applicable governmental regulations in the Countries in which the facilities are located.   15.3 As required the Terminal Parties shall support payloads of STM-l, STM-4, STM-l6 and STM-64.   16. OBLIGATION TO CONNECT THE APCN 2 WITH INLAND SYSTEMS   16.1 The Parties shall, at their own expense, on or before the RFS Date, do or cause to be done, all such acts and things as may be necessary within its operating Country to provide and maintain throughout the period of this Agreement suitable connection of capacity from APCN 2 with appropriate inland communications facilities in its operating Country.   16.2 The Terminal Parties will provide connection to APCN 2 to other Carriers within their Countries on terms and conditions negotiated and agreed by the parties concerned.   17. DIRECT ACCESS TO NETWORK INTERFACE AND EQUAL ACCESS TO TERMINAL STATION   17.1 The Terminal Parties agree to confer the right of Direct Access at the Network Interface to each Party and all other Carriers that have received the Right of Use pursuant to Paragraph 12. The connection to the Network Interface at specific Terminal Stations shall be provided at a reasonable cost in accordance with the physical, engineering and any locally applicable arrangements between the Carriers accessing the Network Interface and the respective Terminal Parties at the Terminal Station.   17.2 Upon request by the Parties or the other Carriers, the Terminal Party shall enter into negotiation in good faith with these parties to agree the above arrangements in a timely manner. Any arrangements agreed upon shall be reasonable and non-discriminatory.   29





  17.3 The physical and engineering arrangements to be negotiated shall include all reasonable arrangements such as mid-span interconnection, equipment co-location (whether physical or virtual), or the sharing of Direct Access facilities by one or more Carriers in accordance with applicable commercial arrangements to be negotiated between the Terminal Party and the Carriers concerned.   17.4 The Terminal Parties shall not and hereby pledge not to impede or cause to impede any qualified Carriers in exercising their right of Direct Access hereby conferred, including but not limited to the negotiation between the non-Terminal Parties and Carriers for their own facilities to access their Allocated Capacity including for purpose of providing backhaul and transiting facilities.   18. DURATION OF AGREEMENT AND REALIZATION OF ASSETS   18.1 This Agreement shall become effective on the date and year first above written and shall continue in operation for at least an initial period of twenty-five (25) years following the RFS Date (hereinafter referred to as initial Period) and shall be terminable thereafter by agreement of the Parties. However, any Party may terminate its participation in this Agreement at the end of the Initial Period or any time thereafter by giving not less than one (1) year's prior notice thereof, in writing, to the other Parties.   18.2 This Agreement may be terminated at any time during the Initial Period by agreement in writing of all the Parties. If unanimous agreement cannot be reached between all the Parties for the retirement of APCN 2 during its specified useful life, this subject matter shall be referred to the Management Committee for resolution in accordance with paragraph 3 but in this case a ninety percent (90%) majority of the total voting interests as specified in Schedule B is required.   18.3 After the Initial Period of twenty-five (25) years, decommissioning can be implemented by agreement of a number of Parties representing at least two-thirds (66.67%) of the voting interests specified in Schedule B.   18.4 If a Terminal Party terminates its participation in this Agreement pursuant to Subparagraph 18.1 of this Agreement after the Initial Period of twenty-five (25) years, the remaining Parties and the said Terminal Party will negotiate a reasonable agreement in order to ensure the continuous operation of the said Terminal Party's Terminal Station after the Initial Period.   18.5 Upon the effective date of termination of participation of a Party, Schedules of this Agreement shall be appropriately modified. The remaining Parties to this Agreement shall assume the obligations, capital, operation, and maintenance interests of the Party terminating its participation in proportion to their interests assigned immediately preceding such effective date of termination, except for the continuing rights and obligations of the terminating Party as specified in Subparagraph 18.7 of this Agreement.   30





  No credit for capital costs will be made to a Party that terminates its participation in accordance with Subparagraph 18.1.   18.6 Upon decommissioning of the APCN 2, the Parties shall use all reasonable efforts to liquidate Segment S1, S2, S3, S4, S5, S6, S7, and S8 of the APCN 2, within one (1) year, by sale or other disposition between the Parties or any of them or by sale to other entities or persons; but no sale or disposition shall be effected except by agreement between or among the Parties to this Agreement at the time of decommissioning. In the event agreement cannot be reached, the decision will be carried on the basis of a simple majority vote of the total voting interests as specified in Schedule B. The net proceeds, or costs of decommissioning, removal, every sale or other disposition shall be divided between or among the Parties to this Agreement who have or were deemed to have interests in the subject thereof, in the proportions in which such Parties, interests are specified in Schedule B immediately preceding the time any Party terminates its participation in this Agreement. The Parties shall execute such documents and take such action as may be necessary to effectuate any sale or other disposition made pursuant to this Paragraph 18.   18.7 Unless the Management Committee shall otherwise determine, a Party's termination of its participation in this Agreement or the termination of this Agreement, pursuant to Subparagraph 18.1, shall not relieve that Party or the Parties hereto from any liabilities arising from events occurring before a Party's termination on account of claims made by third parties in respect of such facilities or any part thereof and damages or compensation payable on account of such claims, or obligations which may arise in relation to the APCN 2 due to any law, order or regulation made by any government or supranational legal authority pursuant to any international convention, treaty or agreement. Any such liabilities or costs incurred or benefits accruing in satisfying such obligations shall be divided among the Parties hereto in the proportions in which such Parties, interests are specified in Schedule B immediately preceding the time a Party terminates its participation in this Agreement or this Agreement is terminated pursuant to Subparagraph 18.1, whichever occurs first.   19. OBTAINING OF APPROVALS   19.1 The performance of this Agreement by the Terminal Parties is contingent upon the obtaining and continuance of such governmental approvals, consents, authorizations, licenses, and permits as may be required or be deemed necessary by the Terminal Parties and as may be satisfactory to them, and the Terminal Parties shall use all reasonable efforts to obtain and to have continued in effect such approvals, consents, authorizations, licenses, and permits.   19.2 The Terminal Parties shall make all reasonable efforts to handle matters relating to the obtaining and continuance of such governmental approvals, consents, authorizations, licenses, and permits for the Landing, construction and operation of APCN 2 in their respective Countries.   31





  19.3 In the event that any Terminal Party fails, or is likely to fail, to obtain such approvals, consents, authorizations, licenses or permits, that Terminal Party shall give immediate notice to the Management Committee for it to take appropriate action pursuant to this Agreement.   20. PRIVILEGES FOR DOCUMENTS OR COMMUNICATIONS   In the event that the Management Committee decides to go to arbitration in accordance with Paragraph 27, each Party specifically reserves, and is granted by each of the other Parties, in any action, arbitration or other proceeding between or among the Parties or any of them in a country other than that Party's own country, the right of privileges, in accordance with the laws of the country in which the arbitration or litigation takes place with respect to any documents or communications which are material and pertinent to the subject matter of the action, arbitration or proceeding in which privilege could be claimed or asserted by that Party in accordance with those laws.   21. RELATIONSHIP OF PARTIES   21.1 The relationship among the Parties shall not be that of partners, and nothing herein contained shall be deemed to constitute a partnership among them. The common enterprise between and among the Parties shall be limited to the express provisions of this Agreement. The liability of the Parties shall be several and not joint or collective.   21.2 Each Patty agrees to indemnify each of the other Parties in respect of all costs, expenses, damages and demands, arising out of or in connection with any claim against, or liability of, the latter as an owner of APCN 2 where such claim is made by, or the liability is to, any third party not being a Party hereto and arises out of or in connection with APCN 2 provided that no indemnifying Party shall be obligated to contribute more than its share of liability as per Schedule B. Subject to there being no conflict of interest, each Party so indemnifying shall have the right, at its sole cost and expense, to observe but not directly participate in any discussions, meetings or conferences held prior to or during any settlement or legal proceedings resulting from any such claim or liability.   21.3 Under no circumstances shall any Party be liable to any other Party in contract, tort, (including negligence or breach of statutory duty) or otherwise for loss (whether direct or indirect) of profits, property, traffic, business or anticipated savings, or for any indirect or consequential loss or damage in connection with the operation of this Agreement howsoever caused. Such causes shall include (but not be limited to):   (i) any delay in the provision of the APCN 2; (ii) any damage to, breakdown in or failure of the APCN 2; and (iii) any interruption of service,   32





  whatever may be the reason or duration for such loss, damage or delay and for however long it shall continue.   22. ASSIGNMENT OF RIGHTS AND OBLIGATIONS   22.1 Except as otherwise provided in Paragraph 12 and Subparagraphs 22.2, 22.3, 22.4 and 22.5, during the term of this Agreement, no Party may assign, sell, transfer or dispose of the whole or any parts of its rights or obligations under this Agreement   22.2 A Party may at any time, with the prior written consent of the Management Committee, assign, sell or transfer the whole of its rights and obligations under this Agreement. The Management Committee must not unreasonably withhold or delay its approval.   22.3 A Party may at any time assign, sell or transfer the whole of' its rights and obligations under this Agreement to:   (a) a successor of that Party; (b) a Parent Company of that Party; (e) a Subsidiary or Affiliate of that Party; and (d) another Subsidiary or Affiliate of that Party's Parent Company.   22.4 A Party (hereafter Assignor) may assign, sell or transfer a portion of its rights under this Agreement to a Parent Company, its Subsidiary, and/or the Subsidiary of the Party's Parent Company (hereafter Assignee). Such partial assignment shall be allowed only once to any such Assignee, and shall not negate any of the obligations of the Assignor. If the Assignor is an Initial Party, then the Initial Party status of the Assignor shall be maintained and the Assignor's voting rights shall be shared with such Assignee. The relevant Schedules to this Agreement shall be revised to reflect each such partial assignment permitted hereunder, showing the Assignee as a Party. No subsequent assignment shall be effected by the Assignee except as provided in Subparagraph 22.3(a).   22.5 Without limiting the applicability of Subparagraph 22.4, a Party may assign its rights, title and interests in any portion of APCN 2 within the territorial limits of any Country (both under the current and any future configuration) to a Subsidiary, Parent Company or a Subsidiary of a Parent Company of that Party only if:   a) the Assignee shall own and be responsible for the capital, operations and maintenance costs listed against the Party for that portion of APCN 2 within the territorial limits of any Country (both under the current and future configuration); the Party shall own and be responsible for the capital, operating and maintenance costs listed against the Party for the remainder of APCN 2; and   b) the Assignee will have no tights and obligations independent from the rights and obligations of the Party in respect of the assigned portion of the APCN 2   33





  The aforementioned provision shall not be used to circumvent the provisions under Paragraph 12.   22.6 A Party exercising its rights under Subparagraphs 22.2, 22.3, 22.4 or 22.5 must give notice in writing to all other Parties in a timely manner.   23. DEFAULT   23.1 If any Party fails to make any payment required by this Agreement on the date when it is due and such default continues for a period of at least one (1) month after the payment due date, the CBP shall notify the billed Party and also the Management Committee in writing of the status of the matter and will request the reclamation of capacity, as provided for in this Paragraph 23, if full payment is not received within two (2) months of such notification. If full payment is not received within such specified period, the Management Committee may reclaim the Capacity in the APCN 2 allocated to the billed Party.   23.2 The Management Committee shall consider any extenuating circumstances not within the specific control of the billed Party in determining whether or not to reclaim the capacity assigned to such billed Party. If the Management Committee nevertheless reclaims any capacity in the APCN 2 assigned to such defaulting Party, the defaulting Party shall not be entitled to any payment or credit for the reclaimed capacity. The Management Committee shall determine arrangements for disposition of any reclaimed capacity. All rights of a defaulting Party under this Agreement shall terminate as of the time all its capacity in the APCN 2 is reclaimed by the Management Committee; and concurrent with such reclamation of capacity, the defaulting Party will no longer be deemed to be a Party to this Agreement. Such reclamation shall not relieve the defaulting Party from its obligations under this Agreement, including but not limited to the payment of its unpaid accounts, which have been incurred prior to the actual reclamation. The defaulting Party is not entitled to any reimbursement of any amounts it had paid under this Agreement. In such circumstances, the Schedules shall be revised to reflect the default of a Party and the reallocation of interests pursuant to the arrangements determined by the Management Committee.   23.3 Notwithstanding Subparagraph 23.2, reclamation of a Terminal Party's capacity will not release the Terminal Party from providing, operating and maintaining its respective Terminal Station until a reasonable agreement is negotiated in order to ensure the continuous operation of the said Terminal Party's Terminal Station after reclamation of its capacity.   24. WAIVER   The failure of any Party, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder shall not thereafter be   34





  construed as a waiver of any breach or default, or as a waiver of any such provision, right, or privilege hereunder.   25. COMPLIANCE WITH LAW   In the performance of their obligations hereunder, the Parties agree to comply with all applicable laws of all Countries having jurisdiction over the activities performed under or stipulated by this Agreement.   26. RATIFICATION OF DECISIONS AND ACTIONS   Each Party to this Agreement does hereby unconditionally ratify and accept as binding on it, its successors, permitted assigns or trustees all decisions and actions theretofore taken directly or indirectly by any other Party or Parties or any committee or Subcommittee or group pursuant to and in accordance with this Agreement.   27. RESOLUTION OF DISPUTES   27.1 If a dispute should arise under this Agreement between or among the Parties they shall make every reasonable effort to resolve such dispute. However, in the event that they are unable to resolve such dispute, the matter shall be referred to the Management Committee which shall either resolve the matter or determine the method, such as arbitration, by which the matter should be resolved. This procedure shall be the sole and exclusive remedy for any dispute which may arise under this Agreement between or among the Parties. The performance of this Agreement by the Parties shall continue during the resolution of any dispute.   27.2 If any difference shall arise between or among the Parties or any of them in respect of the interpretation or effect of this Agreement or any part or provision thereof or their rights and obligations thereunder, and by reasons thereof there shall arise the need to decide the question by what municipal or national law this Agreement or any part or provision thereof is governed, the following facts shall be excluded from consideration, namely that this Agreement was made in a particular country and that it may appear by reason of its form, style, language or otherwise to have been drawn preponderantly with reference to a particular system of municipal or national law; the intention of the Parties being that such facts shall be regarded by the Parties and in all courts and tribunals wherever situated as irrelevant to the question aforesaid and to the decision thereof.   28. SUPPLEMENTS AND AMENDMENTS TO THIS AGREEMENT   28.1 This Agreement shall not be amended, supplemented, or modified unless the Parties representing at least ninety percent (90%) of the voting interests specified in Schedule B   35





  have indicated their approval in writing. The Chairman of the Management Committee must provide advance written notice, of at least thirty (30) days, to all Parties of the proposed amendment, supplement or modification and shall notify all Parties in writing once the required level of approval has been obtained and at least ten (10) days prior to execution of the amendatory or supplementary agreement   28.2 Each Party except SingTel and PLDT authorizes the Chairman of the Management Committee to execute on its behalf any amendatory or supplementary agreement implementing an amendment, supplement or modification approved under Subparagraph 28.1. SingTel and PLDT shall provide the Power of Attorney to the Chairman of the Management Committee to execute on its behalf any amendatory or supplementary agreement implementing an amendment, supplement or modification approved under Subparagraph 28.1 in a timely manner.   28.3 Subparagraphs 28.1 and 28.2 shall not apply to any Schedule or Annex modified in accordance with other provisions of this Agreement, and any Schedule or Annex so modified shall be deemed to be part of this Agreement in substitution for the immediately preceding version of that Schedule or Annex.   29. EXECUTION OF AGREEMENT   29.1 This Agreement and any Supplements and Amendments hereto shall be executed in one (1) original in the English language. Identical counterparts may be executed and when so executed shall be considered as an original. Such counterparts shall together, as well as separately constitute one and the same instrument.   29.2 The NA shall be the custodian of the original and will provide certified copies to Parties to this Agreement.   30. SUCCESSORS BOUND   This Agreement shall be binding on the Parties, their successors, and permitted assigns.   31. CONFIDENTIALITY   31.1 All data and information that is acquired or received by any Party in connection with the APCN 2 in anticipation of or under this Agreement shall be held confidential and shall not be divulged in any way to any third party, without the prior approval of the Management Committee.   31.2 Notwithstanding Subparagraph 31.1, any Party may, without such approval, disclose such data and information to:   36





  (i) the extent required by any applicable laws, or the requirements of any recognized stock exchange in compliance with its rules and regulations or in the case of a Party wholly owned by a sovereign government, by the rules of governance of the Party; or   (ii) any government agency lawfully requesting such information; or   (iii) any Court of competent jurisdiction acting in pursuance of its powers.   31.3 Any Party may disclose such data and information to such persons as may be necessary in connection with the conduct of the operations of the APCN 2 upon obtaining a similar undertaking of confidentiality from such persons to whom such information may be disclosed.   31.4 Each Party shall remain bound by the provisions of this Paragraph 31 during the period of this Agreement and for the period of five (5) years following termination of this Agreement.   32. SETTLEMENT OF CLAIMS BY PARTIES   32.1 If any Party is obliged by a final judgment of a competent tribunal or under a settlement approved by the Management Committee, to discharge any claim by a third party, including all costs and expenses associated therewith, resulting from the implementation of this Agreement, the Party which has discharged the claim shall be entitled to receive from the other Parties reimbursement in the proportions as set out in Schedule B.   32.2 If any claim is brought against a Party in connection with the APCN 2, the Party shall, as a condition of reimbursement under Subparagraph 32.1, give written notice thereof to the Management Committee as soon as practicable and shall not admit liability nor settle, adjust or compromise the claim without the approval of the Management Committee.   32.3 Before any Party brings a claim against any third party in respect of loss or damage to any part of the APCN 2, it shall first consult with the Management Committee and shall not settle, adjust, or compromise such a claim without the approval of the Management Committee.   32.4 Notwithstanding Subparagraphs 32.2 and 32.3, if the Management Committee issues any directions to a Party relating to the conduct of any such claim, then that Party must comply with those directions.   32.5 Costs, expenses, damages, or compensation payable to the Parties on account of claims made against third parties shall be shared by the Parties in the proportions as set out in Schedule B.   37





  32.6 Upon termination of this Agreement pursuant to Paragraph l8, the Parties shall not be relieved from any liabilities, costs, damages or obligations which may arise in connection with claims made by third parties with respect to the APCN 2, or any part thereof, or which may arise in relation to the APCN 2 due to any law, order or regulation made by any government or international convention, treaty or agreement. Any such liabilities, costs, damages or obligations shall be divided among the Parties in the proportions as set out in Schedule B.   33. FORCE MAJEURE   If any Party cannot fulfill its obligations in this Agreement due to an event beyond its reasonable control, including, but not limited to lighting, flood, exceptionally severe weather, fire or explosion, civil disorder, war or military operations, national or local emergency,   35.2  This Agreement supersedes the MOU. Any liabilities which any Party has incurred arising out of or by virtue of the MOU shall be dealt with in accordance with the provisions of this Agreement.   38





  TESTIMONIUM   IN WITNESS WHEREOF, the Parties hereto have severally subscribed these presents or caused them to be subscribed in their names and on their behalf by their respective officers thereunto duly authorized.     For and on behalf of Advantage Telecommunications Ltd.         By:

        For and on behalf of Cable & Wireless Global Network Limited         By:

        For and on behalf of Cable & Wireless HKT international Limited         By:

        For and on behalf of China Telecom         By:

  39





  For and on behalf of China United Telecommunications Corporation         By:

        For and on behalf of Chunghwa Telecom Co., Ltd.,         By:

        For and on behalf of Concert Global Network Services, Ltd.         By:

        For and on behalf of Global One Communications Network, Inc.



        By:

        For and on behalf of Japan Telecom Co., Ltd.



        By:

  40





  For and on behalf of KDD Corporation



        By:

        For and on behalf of Korea Telecom



        By:

        For and on behalf of KPN Telecom B.V.



        By:

        For and on behalf of Layer 2 Communications Group Ltd.



        By:

        For and on behalf of MCI International Telecommunications. Inc.



        By:

  41





  For and on behalf of Metromedia Fiber Network Services, Inc.



        By:

        For and on behalf of New Century InfoComm Ltd., Preparatory Office         By:

        For and on behalf of NTT Communications Corporation



        By:

        For and on behalf of Onelink Cable Network Limited



        By:

        By:

        For and .on behalf of Philippine Long Distance Telephone Company         By:

  42





  For and on behalf of Singapore Telecommunications Limited



        By:

        For and on behalf of StarHub Pte Ltd



        By:

        For and on behalf of Taiwan Fixed Network Co., Ltd. Preparatory Office



        By:

        For and on behalf of Teleglobe USA Inc.



        By:

        For and on behalf of Telekom Malaysia Berhad (128740-P)



        By:

  43





  For and on behalf of Telstra Global Networks Limited         By:

        For and on behalf of Williams Communications, Inc.,         By:

        For and on behalf of APT Satellite Telecommunications Limited         By:

        For and on behalf of Bayan Telecommunications, Inc.



        By:

  44





  For and on behalf of China Netcom Corporation Ltd.



        By:

        For and on behalf of The Communications Authority of Thailand



        By:

        For and on behalf of CTI International Limited



        By:

        For and on behalf of Dacom Corporation



        By:

        For and on behalf of edge2net Inc.



        By:

  45





  For and on behalf of Eastern Telecommunications Philippines, Incorporated         By:

        For and on behalf of Global Access Ltd.



        By:

        For and on behalf of Globe Telecom, Inc.



        By:

        For and on behalf of GNG Networks. Inc.



        By:

        For and on behalf of GTE Intelligent Network Service Incorporated         By:

  46





  For and on behalf of PT Indosat (Persero) Tbk



        By:

        For and on behalf of Maxis International Sdn. Bhd



        By:

        For and on behalf of New World Telephone Limited



        By:

        For and on behalf of NTT Com Asia Ltd.



        By:

        For and on behalf of Onse Telecom Corporation



        By:

  47





  For and on behalf of Telia AB (publ)



        By:

        For and on behalf of TT dotCom Sdn Bhd



        By:

  48 
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.
Example Output: 76429

Example Input: EXHIBIT 10.2

[LOGO AMERICAN EXPRESS]               INCENTIVE               SERVICES

--------------------------------------------------------------------------------                               RESELLER INFORMATION

Company Name: Schoolpop, Inc. Address:3885 Crestwood Parkway, Suite 550

City: Duluth                                    State: GA             Zip: 30096 Contact Name: Paul Robinson Phone: 770-638-5101                             Fax:  770-638-5101 TAX ID #:                                       E mail Add:                                                 probinson@Schoolpop.com

AMERICAN EXPRESS INCENTIVE SERVICES STORED VALUE PRODUCTS                                RESELLER AGREEMENT

This Distribution Agreement (the Agreement) is entered into by and between American Express Incentive Services, L.L.C., a Missouri limited liability company (AEIS), and its Reseller, Schoolpop, Inc., a Delaware corporation (Schoolpop). This Agreement is effective as of August 1, 2004, (the Effective Date) and shall terminate on July 31, 2009, (the Termination Date) unless earlier terminated or extended as provided for herein.

The following points outline this agreement:

1.       PURPOSE

Under and subject to the terms of this Agreement:

a.       AEIS will provide Schoolpop for resale the following stored                   value cards: Encompass(R) Select, Persona(R) Select, Fill It                   Up(R), and Be My Guest(R), and any other stored value products                   developed by AEIS and mutually agreed upon by both parties,                   (Cards). The Cards shall be sold only to those of                   Schoolpop's clients and prospective clients (the Clients),                   in the United States who are nonprofit organizations, (NPO                   Marketplace), which are defined as organizations that are (i)                   a school, (ii) an organization formed as not-for-profit under                   its charter documents, or (iii) an organization related to (i)                   or (ii) such as a participating school's Parent Teacher                   Organization or other similarly related organization.

b.       Period One shall mean the Effective Date through the date that                   Schoolpop has met all of the Security Requirements as such                   term is defined herein and has received approval from AEIS to                   assume all Card inventory, distribution and fulfillment                   responsibilities as currently managed by AEIS. Period Two                   shall commence with the end of Period One through the                   Termination Date.

2.       EXCLUSIVITY

a.       Schoolpop shall have the exclusive right to resell Cards in                   the NPO Marketplace. Notwithstanding the foregoing, Schoolpop                   shall fund from AEIS a minimum of $52,000,000 of Cards (the                   Guaranteed Minimum) in each Contract Year in order to                   maintain the exclusive right to sell Cards in the NPO                   Marketplace. A Contract Year shall be the period of August 1                   through July 31 of the succeeding year. In any Contract Year                   in which Schoolpop fails to fund the Guaranteed Minimum, AEIS                   shall have the right, in its sole discretion, to (a) terminate                   the Agreement or (b) revoke the exclusivity.

b.       In consideration of the exclusivity referred to above,                   Schoolpop shall pay AEIS a marketing rights fee (Marketing                   Rights Fee), of $1,250,000. The Marketing Rights Fee shall be                   paid in five (5) equal installments of $250,000 on March 15th                   of each year with the first such payment being due on March                   15, 2005 and with the final payment due on March 15, 2009.

c.       Schoolpop shall also pay AEIS a fee of $250,000, (the                   Encompass(R) Select Fee) as consideration for the right to                   sell the Encompass(R) Select Card through December 31, 2004.                   The Encompass(R) Select Fee shall be payable concurrently with                   the execution of this Agreement.

d.       Schoolpop understands and agrees that this Agreement does not                   grant Schoolpop any exclusive right to market the Cards or any                   other AEIS products and services outside of the NPO                   Marketplace. AEIS, on its own behalf, reserves the right to                   market its Cards and other products and services directly as

1

well as through additional firms on terms and conditions that                   it selects in its sole discretion, provided that no such sales                   shall take place within the NPO Marketplace.





3.       INVENTORY AND FORECASTING

a.       Schoolpop shall secure a physical location for maintaining,                   distributing, and fulfilling Card inventory no later than                   August 1, 2004 which location shall be subject to such                   security requirements (the Security Requirements) as shall                   be required by AEIS or American Express Travel Related                   Services, Inc. all as further set forth in the Trust Agreement                   attached hereto as Exhibit 1.

b.       Schoolpop shall effectively manage its Card inventory and                   Ordering schedule such that all Cards are resold and                   distributed to the Client with the following Card expiration                   lives (the Card Life) intact:

i.       Persona(R) Select - nine (9) months                   ii.      Encompass(R) Select, Be My Guest(R), Fill It Up(R) -                            three (3) months          The Card life of any Cards other than Cards specifically indicated in          b(i). and b(ii) above (New Cards), shall be mutually agreed upon in          writing.

c.       During Period One, Card expiration shall be determined by the                   date Schoolpop places an Order (the Order) and provides full                   payment and clearance of funding. During Period Two, Card Life                   shall be determined by the date Schoolpop places an Order.

d.       Should any Card expire or lose Card Life prior to                   distribution, Schoolpop shall assume all loss associated with                   the Card funding, if applicable, and shall pay AEIS a $2.00                   per Card destruction fee. Schoolpop shall not return such                   Cards to AEIS, and shall follow the destruction process as                   detailed in the Trust Agreement.

e.       Card Life shall be unaffected by the termination of this                   Agreement.

f.       From the Effective Date through September 30, 2004, Schoolpop                   may order non-standard Encompass(R) Select denominations                   (other than 25, 50, 75, and 100 Points) up to a maximum of 200                   Points. Such non-standard Encompass(R) Select denominations                   require eight (8) weeks to fulfill and must be ordered in                   boxes of 100 Cards of like denominations. Schoolpop shall                   discontinue reselling Encompass(R) Select Cards on December                   31, 2004 and shall effectively manage and forecast                   Encompass(R) Select Card needs to deplete such inventory as of                   December 31, 2004. In the event that any unsold Encompass(R)                   Select Cards remain in inventory by Schoolpop on December 31,                   2004, Schoolpop shall provide to AEIS, no later than January                   5, 2005, the Encompass(R) Select Card numbers, the respective                   expiration dates and denominations of the Cards. AEIS shall                   invoice Schoolpop for the applicable Card destruction fees                   which shall be payable by Schoolpop within thirty days (30) of                   receipt of invoice. Such Card list shall be submitted on a                   disk/CD and shall be sent via a form of shipment where                   signature is required upon delivery.

g.       Effective with Period Two, Schoolpop shall provide to AEIS a                   twelve (12) month sold Card forecast and Card inventory                   forecast (hereinafter defined). In addition, Schoolpop shall                   provide AEIS with a monthly forecast, no later than the third                   business day of each month, of the number of Cards to be sold                   to its clients, (Sold Card Forecast) as well as the number                   of Cards to be stocked in inventory, (Card Inventory                   Forecast), (collectively referred to as the Forecasts) for                   the month, ninety-days out. For example, Schoolpop shall                   provide AEIS with the Card Inventory Forecast and Sold Card                   Forecast in August for the month of November. The Forecasts                   will be relied on, (Locked) at the time they are reported.

h.       Changes to the Forecasts within the Locked period are                   expected. However, any changes to Locked Forecasts will not                   impact any applicable penalties as detailed below in                   subsections (i) and (j). AEIS will place reliance on the                   Forecasts provided by Schoolpop to align resources and ensure                   adequate production, fulfillment and customer service                   capabilities. Schoolpop shall provide AEIS with any changes to                   the Locked Forecasts on a monthly basis including any                   respective changes to either Forecast for the remaining twelve                   (12) month period.

i.       In any consecutive three (3) month period in which the                   difference between the Card Inventory Forecast less the actual                   Card Order volume for that period is a shortage of ten percent                   or greater (10%+), AEIS reserves the right to assess a                   penalty, (Card Inventory Penalty) of sixteen and one-half                   cents ($0.165) per Card for such difference as detailed in                   Examples 1 and 2 below.

---------------------------------------------------------------------------------------------            EXAMPLE 1            --------------- --------------------- ------------------ ------------------ -----------------                            FORECAST PERIOD       ACTUAL VOLUME      FORECASTED VOLUME  DIFFERENCE            --------------- --------------------- ------------------ ------------------ -----------------





                MONTH 1         10/1/04-10/31/04      8,000              10,000             (2,000) 20%            --------------- --------------------- ------------------ ------------------ -----------------            MONTH 2         11/1/04-11/30/04      8,500              10,000             (1,500) 15%            --------------- --------------------- ------------------ ------------------ -----------------            MONTH 3         12/01/04-12/31/04     8750               10,000             (1,250) 12.5%            ------------------------------------------------------- -------------------------------------            PENALTY                                                 4,750 X $0.165 = $783.75            ---------------------------------------------------------------------------------------------

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---------------------------------------------------------------------------------------------            EXAMPLE 2            --------------- --------------------- ----------------- ------------------- -----------------                                                                                     MONTH 1         12/1/04-12/31/04      10,500            11,000              (500) 4.5%            --------------- --------------------- ----------------- ------------------- -----------------            MONTH 2         1/1/05-1/31/05        10,000            13,000              (3,000) 23%            --------------- --------------------- ----------------- ------------------- -----------------            MONTH 3         02/01/05-02/28/05     12,000            12,500              (500) 4%            ------------------------------------------------------- -------------------------------------            PENALTY                                                 NO PENALTY            ------------------------------------------------------- -------------------------------------

j.       In any given month where the difference between the Sold Card                   Forecast less the actual Card activation volume, (Cards in                   Force) is a shortage of ten percent or greater (10%+), AEIS                   reserves the right to assess a penalty, the (Customer Service                   Penalty) which shall be calculated by converting Cards in                   Force into call volume minutes as follows:

i.       Cards in Force times the call to card ratio times the                            average handle time equals the total call volume                            minutes. AEIS will calculate the respective product's                            average year-to-date call to Card ratio and the                            average year-to-date handle time monthly to calculate                            the call volume minutes. For purposes of example, the                            year-to-date through August 2004, Encompass(R) Select                            average call to Card ratio is 2.43 and the average                            handle time is 4.0 minutes.

&sbsp;      ii.      Actual call volume minutes under 90% of the Card Sold                            Forecast will be charged at 90% of Locked Rolling                            Forecast at the standard rate of $0.50 per minute.                            Schoolpop's Customer Service Penalty shall be                            calculated at the difference between actual call                            volume minutes and 90% of Card Sold Forecast call                            volume minutes.

iii.     The Customer Service Penalty shall be calculated                            based upon the a) call volume minutes plus b) Cards                            in Force as detailed in the example below:

-------------- ------------------- ----------------- ----------------- --------------------------------                           FORECASTED CARDS    CALL TO CARD      TOTAL CARDS       AVERAGE HANDLING TIME                           IN FORCE            RATIO            -------------- ------------------- ----------------- ----------------- --------------------------------                                                                                   MONTH 1        10,500              2.43              255               4.00 minutes            -------------------------------------------------------------------------------------------------------            (10,500 x 2.43 = 255) x 4.00 minutes = 1020 Call Volume Minutes            -------------------------------------------------------------------------------------------------------                           ACTUAL CARDS IN     CALL TO CARD      TOTAL CARDS       AVERAGE HANDLING TIME                           FORCE               RATIO            -------------- ------------------- ----------------- ----------------- --------------------------------            MONTH 1        5,000               2.43              121               4.00 minutes            -------------------------------------------------------------------------------------------------------            (5,000 x 2.43 = 121) x 4.00 minutes = 486 Call Volume Minutes            -------------------------------------------------------------------------------------------------------            PENALTY: 90% x 1020 = 918, (918-486 = 432) x $.50 = $216 Total Penalty for the Month            -------------------------------------------------------------------------------------------------------

l.       Schoolpop shall pay AEIS all incurred penalties within thirty                   (30) days of receipt of invoice for such penalties by AEIS.

m.       At any given time during this Agreement, Schoolpop's inactive                   Card inventory shall be limited to $3,000,000 in Card value as                   determined by the Point denomination on each Card. This limit                 &sbsp; shall consist of a maximum Card value of $1,500,000 in                   Encompass(R) Select Cards and $1,500,000 Card value in any                   other product (s). Effective January 1, 2005, after which                   Encompass(R) Select shall no longer be available to Schoolpop,                   the maximum inactive Card value shall not exceed $3,000,000 in                   any combination of products at any given time. In the event                   that Schoolpop exceeds either of these limits, AEIS shall                   cease fulfilling Orders from Schoolpop until such time that                   Schoolpop's inventory returns to an acceptable level based on                   the established maximums.





n.       Any New Cards shall be excluded from the forecasting and                   penalty provisions of this Section 3 for the three (3) month                   period commencing on the date of the first order of such New                   Cards.

4.       CARD ISSUANCE

a.       Schoolpop agrees that it will review all requests for each                   Program requested by the Client and will use reasonable and                   customary business practices to qualify and recommend Clients                   proposed for a Program. Schoolpop shall take commercially                   reasonable efforts to ensure all information requested for a                   Client is true, accurate and correct.

b.       AEIS may, from time to time, provide Schoolpop with                   commercially reasonable qualification standards for Clients.                   Schoolpop shall not knowingly submit an Order to AEIS on                   behalf of any Client that does not meet any such standards.                   Schoolpop agrees that it will sell Cards only to Clients and                   only for use in connection with a bona fide fund raising                   program. Schoolpop will not knowingly sell Cards to any Client                   who does not meet any AEIS qualification standard(s) or to any

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Client or potential Client that Schoolpop has reason to believe would          be unsatisfactory to AEIS.

c.       AEIS reserves the right at any time, with or without cause,                   with reasonable written notice to Schoolpop, to cancel or                   decline any Client's participation in the Program.

d.       AEIS may, at its sole discretion, decline to provide Cards to                   Clients.

e.       Cards are intended for use in the United States and must be                   designated for receipt of shipment within the United States.

f.       AEIS' designated vendor will be responsible for shipping Cards                   in accordance with Schoolpop's instructions.

g.       AEIS's designated vendor will ship the Cards as follows:

i.       During Period One, AEIS' designated vendor will use                            reasonable commercial efforts to ship the Cards as                            detailed below, following receipt and clearance by                            AEIS of Card Funding.

ii.      During Period Two, AEIS' designated vendor will use                            reasonable commercial efforts to ship the Cards as                            detailed below, following receipt of Card Order                            placed by Schoolpop.

The initial Order of (a) standard non-branded Cards                            within 5 business days after set-up; subsequent                            Orders, (b) of less than 5,000 Cards per day within                            three (3) to five (5) business days of receipt of                            Order; (c) forecasted Orders of 5,000 or more Cards                            per day within eight (8) to thirteen (13) business                            days of receipt of Order; and (d) non-forecasted                            Orders of 5,000 or more Cards per day within twenty                            (20) to thirty (30) business days of receipt of                            Order. All shipment timelines are subject to change                            without notice due to seasonal or unforecasted                            production volume and AEIS shall work with its Card                            production vendor and use reasonable commercial                            efforts to secure the most favorable shipment date                            commitment and shall notify Schoolpop accordingly.

h.       One point is worth one (1) U.S. Dollar ($1.00 USD) (Point).

i.       AEIS shall ship Cards in bulk shipment via its designated                   vendor to Schoolpop, F.O.B. Atlanta, Georgia. Schoolpop shall                   distribute to each Cardholder the Cardholder agreement as                   provided with each Card and which includes instructions on                   How to Use the Card. Should Schoolpop or its Client                   distribute Cards without such Cardholder agreement, Schoolpop                   shall indemnify and hold harmless AEIS, its parents,                   subsidiaries and their respective affiliates, officers,                   directors, employees and agents, against any and all Loss,                   hereinafter defined, that AEIS may incur or be subjected to as                   a result of such action, including, without limitation, any                   claims brought by any entity including but not limited to                   governmental entities and Cardholders.

j.       Purchases made with a Card having insufficient Points will be                   deemed a deniable transaction. The correct way to handle the                   purchase is described in the Cardholder agreement. If there is                   a purchase made on a Card where there are insufficient Points                   on the Card, the negative amount will be the responsibility of                   the person whose signature appears on the Card, as described                   in the Cardholder agreement.





k.       CARDS LOST OR STOLEN IN TRANSIT IN THE INITIAL SHIPMENT FROM                   AEIS WILL BE THE RESPONSIBILITY OF AEIS. The full risk of loss                   for ordered Cards shall pass to Schoolpop immediately upon                   their delivery to Schoolpop by AEIS and AEIS shall not                   reimburse Schoolpop or Client for any delivered Card that is                   lost, stolen, misappropriated, or that otherwise disappears or                   is fraudulently or inappropriately used (together referred to                   as Loss). Schoolpop shall remain solely liable for any Loss                   caused by the negligence or willful misconduct of its                   employees, agents or representatives after the shipment has                   been received by Schoolpop. AEIS will not reimburse Schoolpop                   or its Client or be responsible for any Loss in connection                   with or after delivery of Cards to Schoolpop, its Clients or                   the Cardholder whether they are shipped to Schoolpop, its                   Client, or to either of their pre-designated delivery agents.                   Only Cardholders are eligible to receive replacements from                   AEIS and replacements are given only in accordance with the                   agreement between the Cardholder and AEIS. Cards are usually                   shipped in packaging with AEIS' designated vendor as the                   return address. Notwithstanding the foregoing, AEIS shall bear                   no risk of Loss and of non-receipt of Cards by the intended                   Cardholder in the event that AEIS is instructed to use another                   address as the return address, the address provided to AEIS                   for Schoolpop or the Client was incorrect, the request for the                   Card was unauthorized, and/or any information received by AEIS                   with regard to the processing of the Order was fraudulent or                   incorrect.

l.       All agreements entered into between Schoolpop and its Clients,                   shall contain a provision substantially similar to the                   preceding Section 3 (k).

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m.       During the term hereof, Schoolpop shall maintain at all times                   the following information with respect to Card resale and                   distribution to Client:

i.       For each box of Cards, or partial thereof, sent from                            AEIS's designated vendor to Schoolpop, the UPS(TM)                            Tracking number appearing on the shipping label of                            the box and the respective Card numbers for the Cards                            contained in the box (AEIS's shipping vendor shall                            include a list of Card numbers within each box.), and

ii.      The Client name and delivery date of each box of                            Cards or partial thereof, sent from Schoolpop via                            their designated shipping vendor, to the Client,                            including proof of signature and tracking number for                            the box, specific to Schoolpop's shipping vendor.

n.       Schoolpop shall comply with all applicable Federal, State and                   local laws concerning the use of Cards, including anti-money                   laundering and anti-terrorism laws, and currency control                   regulations. Schoolpop warrants it shall take measures to                   track information about its Clients which shall meet                   compliance requirements related to the above stated laws,                   track all Card shipment(s) to each such Client, and maintain                   appropriate records for its Clients for a period of seven (7)                   years after termination of the Agreement and to provide such                   records and other information to AEIS upon reasonable request                   and subject to applicable law. Schoolpop shall further inform                   in writing all of its Clients of their requirement to comply                   with all applicable laws concerning the use of Cards,                   including those laws stated in the previous sentence. School                   shall inform its Clients of the requirement to maintain                   records with respect to the Cards and Cardholders, and to                   verify the identity of Cardholders as required by law, to                   maintain records of the information used to verify each                   Cardholder's identity, to retain such records for at least                   seven (7) years following the date of distribution, including    &sbsp;              name, home address, Card number, and other identifying                   information, and the name, title and phone number of the                   individual responsible for maintaining such records, and to                   provide such records and other information to AEIS upon                   reasonable request and subject to applicable law. Schoolpop                   and Schoolpop's Clients shall establish and maintain an                   anti-money laundering program with an assigned compliance                   officer and compliance program. Details of such shall be                   provided to AEIS upon request. Schoolpop and Schoolpop's                   Clients shall not accept cash, coin or currency in exchange                   for Cards. Schoolpop shall indemnify and hold harmless AEIS                   its parents, subsidiaries and their respective affiliates,                   officers, directors, employees and agents, against any and all                   Loss that AEIS may incur or be subjected to as a result of or                   arising out of Schoolpop's failure to comply with such laws                   and regulations, including, without limitation, any Loss                   resulting from any claims brought by any entity including but                   not limited to governmental entities, unless due to the acts                   or omissions of AEIS. AEIS reserves the right, at its sole                   discretion, to monitor and enforce Schoolpop's compliance with                   all applicable laws and regulations, including but not limited                   to those contained in this Section 3 (n). Schoolpop shall                   monitor and use reasonable commercial efforts to enforce its





Clients' compliance with all applicable laws and regulations                   including, but not limited to those contained in this Section                   3 (n). All agreements entered into between Schoolpop and its                   Clients shall contain a provision substantially similar to                   this Section 3 (n).

o.       Schoolpop agrees that it will indemnify and hold AEIS harmless                   for any claims or losses resulting from its failure to comply                   with the requirements of Sections 4 (k), (m-n), unless due to                   the acts or omissions of AEIS.

p.       AEIS will not hold Schoolpop responsible for or seek to                   collect from Schoolpop any Loss caused by or resulting from                   any Cardholder's fraud, misuse, or negative balance                   transactions involving the Cards except to the extent such                   Loss was caused by Schoolpop's breach of a representation,                   warranty, or covenant of this Agreement or if Schoolpop (or                   Schoolpop's employees, agents or representatives) participated                   in or had knowledge of any deceptive, fraudulent or other                   illegal activity.

q.       Schoolpop acknowledges that Points must be used prior to the                   expiration date of the Cards. No refund will be made with                   respect to Points remaining on Cards at the time of expiration                   to Schoolpop, its Clients or the Cardholders, subject to                   applicable law. Schoolpop further acknowledges the Cardholder                   Agreement contains such notice to Cardholders.

5.       PAYMENT INSTRUCTIONS

a.       Effective Period One, Schoolpop shall provide full payment of                   Card funding via wire transfer for Orders placed through the                   end of Period One. AEIS shall fulfill such Orders upon receipt                   and clearance of funds.

b.       Effective Period Two, Schoolpop shall provide the full payment                   of Card funding via ACH Debit at the time Schoolpop requests                   activation of Cards. AEIS shall activate the Cards by loading                   the appropriate number of Points onto the Cards as determined                   by the denomination, and at which time the Cards shall be                   ready for use by Cardholders within two (2) business days.

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c.       Schoolpop shall pay AEIS $25.00 each time a wire transfer is                   used for amounts under $5,000.

d.       The Schoolpop account number as detailed on Exhibit 3,                   attached hereto, must be on each form of payment along with                   the amount of funding to be applied to each account number.                   Failure to provide AEIS with this account number and funding                   detail may result in a delay in Funding.

e.       Schoolpop shall pay AEIS $15.00 for each returned ACH Debit                   payment.

f.       All instruments bearing funds for Cards should be made payable                   to American Express Incentive Services, L.L.C. AEIS' required                   payment method is in U.S. currency. AEIS reserves the right to                   decline payment made in any other currency.

g.       The following instructions should be used for Electronic                   Settlements to AEIS:

American Express Incentive Services                   c/o Bank of America                   Dallas, TX                   Routing/ABA #111000012                   Account #375-100-6936                   Reference:  XXXX  (Client Name and Account #)

All invoices for Schoolpop should be sent to the following                   address:

Schoolpop, Inc.                   Attn: Paul Robinson                   Address: 3885 Crestwood Parkway, Suite 550                   City, State, Zip: Duluth, GA 30096                   Phone #: 770-638-5101                   Fax #:  770-678-3334                   Email address: probinson@Schoolpop.com

Schoolpop agrees to notify AEIS promptly in the event the address or          contact for invoice submission changes.

6.       ORDERING INSTRUCTIONS

a.       Effective Period One, Schoolpop's designated contact shall                   place Orders by submitting data in an electronic document via                   email to AEIS.

b.       Schoolpop will be assigned a user name and password that will                   be used for identification when placing Orders using                   easyorder(TM). Schoolpop authorizes AEIS to accept and process                   Orders from anyone using Schoolpop's password. AEIS will have





no obligation or responsibility for verifying the identity of                   anyone using Schoolpop's password. Schoolpop shall have the                   responsibility of safeguarding Schoolpop's password and should                   not reveal its password to anyone. AEIS will not ask Schoolpop                   in an unsolicited telephone call or email for its password. In                   addition, Schoolpop should take precautions when using a                   computer that is not its own or in a public setting. If                   Schoolpop suspects that someone else may have had access to                   its password, Schoolpop shall notify AEIS immediately.

c.       Effective with Period Two, the following ordering terms and                   conditions apply:

i.       Schoolpop shall order Cards in increments of 100 per                            box and shall not place Orders for any partial box                            (es) of 100, nor request any partial activation of                            any box (es).

ii.      Cards within each box shall be of the same product                            and Point value. AEIS shall not mix products and/or                            Point values within any single box.

iii.     Upon receipt of Cards, Schoolpop shall confirm                            receipt of such Cards as detailed in the Trust                            Agreement.

iv.      AEIS shall use commercially reasonable efforts to                            activate each full box of Cards within two (2)      &sbsp;                     business days upon receipt of the UPS(TM) Tracking                            number (used by AEIS's designated shipping vendor)                            for the box of Cards from Schoolpop along with the                            receipt and clearance of Card funding for the box of                            Cards.

v.       Once activated, all Cards become the property of                            Schoolpop, excluding all Marks as detailed in Section                            8, and further defined within the Trust Agreement.

vi.      Activation terms for New Cards shall follow the                            process established for existing Cards.

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7.       PROGRAM COMMUNICATIONS

a.       All rights to the name, logo, service marks and/or trademarks                   (the Marks), trade names, tag lines, or any other                   proprietary designation (Proprietary Designation) of AEIS                   remains the sole property of AEIS. Certain use of the Marks                   and Proprietary Designation of American Express Travel Related                   Services Company and Maritz Inc. has been granted to AEIS                   under license agreements. It is understood that the Marks may                   be necessary to enhance the impact and clarity of Program                   communications. All use of Marks and Proprietary Designations                   of AEIS, American Express and Maritz Inc. requires prior                   written approval from AEIS and use of the Marks shall follow                   and be subject to requirements issued by AEIS and attached                   hereto as Exhibit 4 and 4.A and 4.B, including any such Marks                   used by Schoolpop's Clients.

b.       Camera-ready artwork is available from AEIS for inclusion of                   the AEIS logo or to display a picture of a Card in Program                   communications. Requests for camera-ready artwork should be                   directed to the address below.

c.       Schoolpop shall inform AEIS in writing, and obtain prior                   written consent (which consent shall not be unreasonably                   withheld), for any and all television, radio, newspaper,                   magazine, Internet, Intranet, or other advertising,                   promotional or marketing campaign or strategy using the Marks                   or when referring directly to American Express Travel Related                   Services Company, Maritz Inc. or AEIS or any American Express                   merchant.

d.       Schoolpop is solely responsible for ensuring that any names                   and/or logos, designs, pictures or other intellectual                   property, which are provided by Schoolpop to be used in the                   Program (including collateral material), does not infringe or                   violate the intellectual property rights of any other party                   and shall indemnify AEIS from any and all claims made by any                   third party respecting such infringement.

e.       Schoolpop shall discontinue its use and shall notify its                   Clients to discontinue use of the Marks, including all                   American Express merchant marks, and all associated                   promotions, including but not limited to Client promotions,                   upon termination of this Agreement.

f.       Schoolpop, at its option, may request that AEIS include in the                   shipment of Cards, Program specific collateral materials.                   Program specific collateral materials are subject to review                   and approval by AEIS and additional charges may apply.

g.       AEIS retains the right to immediately terminate this Agreement                   should Schoolpop distribute any promotional materials or





communications that are not approved by AEIS and/or do not                   meet AEIS' branding guidelines, including American Express                   merchant marks.

h.       Schoolpop shall send all materials for review to:

Branding and Product Communications Specialist                   American Express Incentive Services, L.L.C.                   1309 N. Highway Drive                   Fenton, MO  63099                   Tel: 636-226-2071                   Fax: 636-226-2002                   AEIS shall review all submissions within seven (7) business                   days.

8.       JOINT MARKETING AND COMMUNICATIONS

a.       AEIS shall provide standard Card plastic design and standard                   Card carrier design including pre-printed paper and electronic                   copy, and standard Card envelope design for all Card packaging                   (collectively Card Packaging). In the event Schoolpop or its                   Clients request any non-standard Card plastic design or Card                   Packaging, AEIS and Schoolpop shall mutually agree upon such                   materials. AEIS shall provide to Schoolpop pricing for                   non-standard materials

b.       AEIS shall provide standard promotional materials, and                   communication to provide market exposure for Cards. In the                   event Schoolpop or its Clients request any non-standard                   promotional or communication materials, AEIS and Schoolpop                   shall mutually agree upon such materials. AEIS shall provide                   to Schoolpop pricing for non-standard materials, which may or                   may not include Cardholder website customization.

c.       AEIS and Schoolpop shall mutually develop, market, and                   implement two (2) new Cards for Program use no later than                   October 1, 2004 as follows:

i.       A category Card, where AEIS shall put forth a                            commercially reasonable effort to secure contracts                            with a select group of merchants to participate in                            the Card program as identified on Exhibit 5, attached                            hereto, and to make changes to such categories and/or                            merchants.

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ii.      A grocery Card, where AEIS shall put forth a                            commercially reasonable effort to secure contracts                            with a select group of merchants leveraging                            Schoolpop's existing relationships with grocery store                            companies, as identified on Exhibit 5.A, attached                            hereto, and to add other merchants as mutually agreed                            upon by both parties.

iii.     AEIS shall communicate and maintain participating                            merchants in the category and grocery Cards through                            the Card website, an Interactive Voice Response                            fax-back service listing of current merchants, and                            through a merchant listing that shall accompany each                            Card.

iv.      AEIS and Schoolpop mutually agree to pursue                            additional Card products, as market conditions                            warrant, for use in the NPO marketplace and shall                            document such products in a separate Agreement.

d.       The parties agree that the minimum number required for the                   category Card shall be not less than 70% of the consumer                   categories contained within Exhibit 5; and the grocery Card                   not less than 70% national coverage to launch each                   respectively. The parties shall mutually agree upon any New                   Card minimum numbers required for each&sbsp;New Card launch.

9.       PROGRAM TERMS

a.       From the Effective Date through September 30, 2004, Schoolpop                   may order non-standard Encompass(R) Select denominations                   (other than 25, 50, 75, and 100 Points) up to a maximum of 200                   Points. Such non-standard Encompass(R) Select denominations                   require eight (8) weeks to fulfill and must be ordered in                   boxes of 100 Cards of like denominations. Schoolpop shall be                   limited to $26,500,000 in total Encompass(R) Select sales                   through December 31, 2004. Such limit may be increased in the                   event Persona Select actual sales exceed its forecasted sales                   for the period ending December 31, 2004. The limit increase                   shall be calculated on three-to-one ratio of Encompass Select                   sales to Persona Select Sales. Schoolpop shall discontinue                   reselling Encompass(R) Select Cards on December 31, 2004 and                   shall effectively manage and forecast Encompass(R) Select Card                   needs to deplete such inventory as of December 31, 2004. In                   the event that any unsold Encompass Select Cards remain in                   inventory by Schoolpop on December 31, 2004, Schoolpop shall                   provide to AEIS, no later than January 5, 2005, the





Encompass(R) Select Card numbers, the respective expiration                   dates and denominations of the Cards. Such Card list shall be                   provided to AEIS by Schoolpop via disk/CD and sent via a form                   of shipment where signature is required upon delivery. AEIS                   shall invoice Schoolpop for applicable destruction fees of                   $2.00 per Card which shall be payable by Schoolpop within                   thirty (30) days upon receipt of invoice.

b.       Cards shall not be used to purchase gift certificates and/or                   gift cards at participating merchants.

c.       Schoolpop acknowledges it will be listed as a current Client                   of AEIS. Schoolpop agrees to be used as a reference to current                   and future AEIS Clients with prior approval from Schoolpop.

d.       Schoolpop agrees to an annual review to take place forty-five                   (45 days) prior to each contract anniversary, on or about June                   15th of each contract year. This review will include, but is                   not limited to, a review of volume performance, economics of                   the products, and branding.

e.       Schoolpop agrees to product and program training as required                   by AEIS.

f.       The parties agree to jointly develop a Cardholder appeasement                &bbsp;  program. Such appeasement program shall require Schoolpop                   develop a process with its Clients to mutually resolve                   Cardholder appeasement issues prior to raising them with any                   third party(ies).

g.       AEIS may from time to time provide Schoolpop with certain                   reasonable terms and provisions to be included in the                   agreements to be entered into between Schoolpop and its                   Clients and Schoolpop agrees that any such terms and                   provisions shall be included in such agreements.

10.           PROGRAM SERVICING

a.       AEIS will provide:

i.       24-hour customer service representation, via a 24x7                            English speaking toll-free telephone number, for                            Program Cardholders who have questions concerning a                            Card. The toll-free numbers as of the drafting of                            this Agreement are:

Persona(R) Select                    800-259-9526                            Encompass(R) Select                  888-210-9821                            Fill It Up(R)                        800-575-7365                            Be My Guest(R)                       877-243-5082

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ii.      Cardholders with the ability to obtain point balance                            information through the following Cardholder Web                            sites:

www.personaselect.com             Persona(R) Select                            www.encompass-select.com          Encompass(R) Select                            www.rewardearner.com/fillitup     Fill It Up(R)                            www.rewardearner.com/bmg          Be My Guest(R)

iii.     Merchant Management - includes the management of the                            authorization network, merchant settlement and                            dispute handling, and

iv.      AEIS will provide reasonable assistance to Schoolpop                            in managing the Program as needed and requested by                            Schoolpop. Additional charges may apply.

v.       AEIS and Schoolpop shall mutually agree upon a Client                            and/or Cardholder appeasement process and the                            respective financial responsibility.

b.       AEIS reserves the right to change program servicing from time                   to time.

11.      REPRESENTATIONS AND WARRANTIES

a.       Schoolpop and AEIS each represents and warrants that                   participation in the Program shall at all times conform to the                   highest standards of business ethics and practices and at no                   time will they permit any act to be done by their employees or                   representatives that will damage the name, reputation or                   goodwill of the other party or its affiliated companies.

b.       Schoolpop and AEIS each further represents and warrants that                   its participation in the Program is and will remain during the                   term of this Agreement in compliance with all laws, rules and                   regulations applicable to it.

c.       Schoolpop and AEIS each further represents and warrants that                   they are authorized to enter into this Agreement and that this                   Agreement does not violate any other agreement to which it is                   a party.





12.      CONFIDENTIALITY

a.       The terms, procedures, any applicable criteria for success and                   results of this Agreement and all information furnished by and                   between the parties in connection with this Agreement shall be                   confidential and shall not be disclosed by either party                   without the express written consent of the other party;                   provided that Schoolpop shall have the right to disclose such                   information as may be required to comply with applicable SEC                   regulations.

b.       Both parties acknowledge that they may have access to or                   receive confidential information, data, and materials about                   the other party, their Clients and Cardholders, and their                   entities, including, without limitation, marketing                   philosophies and objectives, pricing information, business                   materials and data, processes, customer lists, product                   information, financial data, competitive advantages and                   disadvantages, and other confidential information received                   (Confidential Information), and that disclosure or misuses                   of such Confidential Information, would be irreparably                   damaging to the other party. Accordingly, both parties agree                   to receive and hold in confidence all Confidential Information                   considered proprietary or confidential by the other party, and                 &sbsp; agree not to disclose or use such information in any manner                   except for uses contemplated by this Agreement unless                   permitted in writing in advance by the other party (except for                   information disclosed to Cardholders in accordance with the                   Cardholder Agreement). Both parties also agree to bind their                   employees, and subcontractors to compliance with this                   paragraph and to take all other reasonable action to ensure                   protection of the Confidential Information.

c.       Such Confidential Information is subject to the terms and                   conditions of this Agreement, if (a) such Confidential                   Information is either Party's marketing philosophies and                   objectives, financial and pricing information, Client lists,                   business processes or competitive advantages and                   disadvantages; (b) such Confidential Information is disclosed                   verbally and is verbally identified as proprietary or                   confidential at the time of disclosure, and there exists a                   written record that such Confidential Information was                   disclosed and identified verbally as proprietary or                   confidential; or (c) such Confidential Information is in                   written, graphic or electronic form when disclosed and the                   media that contains such Confidential Information is clearly                   marked confidential or proprietary, or something                   substantially similar. Notwithstanding the foregoing,                   Confidential Information shall not include (d) information                   that is publicly known, already known by, or in the possession                   of the non-disclosing party, or (e) is independently developed                   by the non-disclosing party without use or reference to the                   other party's Confidential Information, or (f) is rightly

9

obtained by the non-disclosing party from a source other than                   the disclosing party without such restrictions.

d.       Each party agrees that during the term of this Agreement and                   thereafter (a) it will use Confidential Information belonging                   to the other party solely for purposes outlined in this                   Agreement, (subject to the terms and conditions thereof), (b)                   it will not disclose Confidential Information belonging to the                   other Party to any third party other than the receiving                   Party's employees, affiliates, agents, permitted vendors,                   subcontractors and/or professional advisors on a need-to-know                   basis who are advised of the confidential nature of the                   Confidential Information and under a similar confidentiality                   agreement, and (c) each Party will treat the Confidential                   Information of the other Party with the same care that the                   receiving party normally affords its own proprietary and                   confidential information. If any such employee, affiliate,                   agent, subcontractor or professional advisor discloses or uses                   the Confidential Information in a manner not permitted under                   this Agreement, the party disclosing the Confidential                   Information to such employee, affiliate, agent, subcontractor                   or professional advisor will be liable therefore. If either                   party is required by law to disclose Confidential Information,                   it may be disclosed, provided that, unless prohibited,                   sufficient prior notice is given to the non-disclosing party                   to afford it an opportunity to take whatever steps it deems                   necessary to protect the confidential nature of the                   Confidential Information. In the event a party is required to                   disclose the other party's Confidential Information in                   connection with any judicial proceeding or government                   investigation, a notification of such requirement shall                   promptly occur allowing a reasonable time for the appropriate                   party to seek a protective Order from the appropriate court or                   government agency. Thereafter, Confidential Information may be                   disclosed to the extent required by law, subject to any                   applicable protective Order.

e.       Upon request of the other party, each party will promptly





return to the other any or all Confidential Information of the                   other then in its possession or under its control provided,                   however, that each party may retain one copy of all such                   Confidential Information solely for its own internal records,                   such Confidential Information to remain subject to the                   restrictions on use and disclosure contained in this Agreement

f.       Authorized users, (Authorized Users) include Schoolpop, its                   affiliates and its Client's personnel involved in                   administering the Program and eligible Cardholders of a                   Schoolpop Program. Schoolpop acknowledges that it will likely                   receive private information (PI) from Authorized Users that                   will be subject to various privacy laws and regulations in the                   various States in which the Authorized Users and the parties                   hereto reside. Furthermore, Schoolpop, and/or its Client, will                   likely be providing such PI to AEIS for identification of such                   Authorized Users. Schoolpop shall, and shall cause its Client                   to, (a) comply with all applicable privacy laws and                   regulations, (b) shall provide to AEIS evidence of such                   compliance upon request, (c) and shall obtain such                   permissions, clearances, or other allowances as shall be                   necessary for AEIS to use such PI as contemplated hereunder.                   Schoolpop shall, and shall cause its Client to, (d) cooperate                   with AEIS with respect to complying and avoiding any claims                   based on PI rights of others including without limitation                   Schoolpop and/or its Client communicating to AEIS all                   necessary acts and safeguards required of AEIS in handling PI,                   (e) providing such notices and information to Authorized Users                   as required, (f) identifying all PI as PI at the time of its                   transmission to AEIS, (g) segregating any PI required to be                   handled differently as necessary to ensure its proper                   treatment including without limitation not providing PI to                   AEIS and, if applicable, (h) PI that has been opted out of                   Schoolpop's or its Client's permission for use hereunder.                   Schoolpop and its Client shall respectively bear the cost of                   compliance with all privacy laws and regulations. Schoolpop                   will, at its sole cost and expense, defend, indemnify and hold                   harmless AEIS and each of its respective officers, directors,                   employees, agents, contractors, affiliates, service providers                   and insurers (collectively, AEIS Indemnified Parties) from                   and against any and all loss or liability, claims, demands,                   damages, losses and expenses including, without limitation,                   reasonable attorneys, accountants and expert witness fees,                   costs and expenses that the AEIS Indemnified Parties, or any                   one or more of them, may sustain or incur as a result of a                   claim of violation of any law or regulation or personal right                   directed to protecting the PI rights of individuals or the                   use, misuse, collection, loss of privacy or confidentiality,                   or other mishandling or improper or illegal act with respect                   to such PI including without limitation governmental                   enforcement action as well as civil claims involved with any                   such Schoolpop Program. Excluded from the obligation to defend                   and indemnify shall be any claims or damages attributable  &bbsp;                solely to the negligence or intentional misconduct of any AEIS                   Indemnified Party, and solely as to that AEIS Indemnified                   Party to which such negligence or intentional misconduct is                   attributable. The obligations under this Section 12 shall                   survive the termination, cancellation, and expiration of this                   Agreement.

10

13.      INSURANCE

a.       Schoolpop shall, during the term of this Agreement, at its own                   cost and expense, procure with sound and reputable insurers,                   the following insurance coverage's: (i) Workers' Compensation                   Insurance in an amount not less than the statutory limits for                   the state(s), country or province in where the services are to                   be performed; (ii) Employer's Liability Insurance not less                   than (a) $100,000 per occurrence, and not less than $100,000                   aggregate limit of liability per policy year for disease,                   including death at any time resulting therefrom, not caused by                   accident or (b) such amount as required by law, whichever is                   higher; (iii) Comprehensive General Liability Insurance,                   including blanket extended coverage against all hazards,                   including personal injury and death resulting therefrom, for                   not less than $1,000,000 per occurrence, and not less than                   $2,000,000 aggregate; (iv) Automobile Liability insurance                   against liability arising from the maintenance or use of all                   owned, non-owned and hired automobiles and trucks used to                   provide services, with (a) a minimum limit of liability for                   bodily injury of $1,000,000 in the aggregate, and with a                   minimum limit of liability for property damage of $500,000 per                   accident, or (b) amount as required by law, whichever is                   higher; and (v) fidelity or crime policy of not less than                   $3,000,000 in the aggregate against misappropriation and/or                   destruction of Cards.

b.       Schoolpop's insurance shall be deemed primary. Schoolpop shall                   provide AEIS with certificates of insurance evidencing the                   coverage's required hereunder within fifteen (15) days after





execution of this Agreement. Each policy required hereunder                   shall provide that AEIS shall receive thirty (30) days advance                   written notice in the event of a cancellation or material                   change in such policy. Each policy of insurance which                   Schoolpop is required to possess under this Agreement shall                   name AEIS, and its Directors, Officers, and Employees, as                   additional insured in the insurance policy limits herein                   required. In the event that any service under this Agreement                   is to be rendered by persons other than Schoolpop's employees,                   Schoolpop shall furnish AEIS with evidence of insurance for                   such persons subject to the same terms and conditions as set                   forth above and applicable to Schoolpop prior to commencement                   of service by such person(s).

14.      GENERAL TERMS & CONDITIONS

a.       This Agreement along with the Trust Agreement constitute the                   entire Agreement between the parties hereto and supersedes all                   prior communications and agreements between the parties with                   respect to the subject matter hereof. Except for changes in                   AEIS product rules and other procedural or operational changes                   in terms initiated by AEIS as described herein, this Agreement                   may not be modified or otherwise amended except by a further                   writing executed by both parties hereto, which writing makes                   specific reference to this Agreement.

b.       No right or interest in this Agreement shall be assigned by                   Schoolpop without prior written permission of AEIS, which                   shall not be unreasonably withheld.

c.       This Agreement shall be deemed to have been made and executed                   in the State of Missouri and any dispute arising thereunder                   shall be resolved in accordance with the laws of the State of                   Missouri, without reference to its rules governing conflicts                   of law.

d.       Either party may terminate this Agreement with written notice                   to the other party as follows:

i.       Should either party (1) admit in writing its                            inability to pay its debts generally as they become                            due; (2) make a general assignment for the benefit of                            creditors; (3) institute proceedings to be                            adjudicated a voluntary bankrupt; (4) consent to the                            filing of a petition or bankruptcy against it; (5) be                            adjudicated by a court of competent jurisdiction as                            being bankrupt or insolvent; (6) seek reorganization                            under any bankruptcy act; (7) consent to the filing                            of a petition seeking such reorganization; or (8)                            have a decree entered against it by a court of                            competent jurisdiction appointing a receiver,                            liquidator, trustee, or assignee in bankruptcy or in                            insolvency covering all or substantially all of such                            party's property or providing for the liquidation of                            such party's property or business affairs; then, in                            any such event, the other party, at its option and                            without prior notice, may terminate this Agreement                            effective immediately; or

ii.      Upon the occurrence of a breach by the other party,                            which breach has not been cured within (30) days                            after the date of written notice to the breaching                            party by the non-breaching party; or

iii.     For non-payment of any amounts due hereunder. In the                            event this Agreement is terminated for any reason                            prior to May 31, 2009, all unpaid Marketing Rights                            Fees incurred to the termination date, will be fully                            due and payable by Schoolpop to AEIS. Upon                            termination, each party will return to the other or                            destroy, and provide written certification of                            destruction of, all information furnished by such                            other party hereunder, prior to termination and                            follow necessary termination instructions detailed in                            the Trust Agreement. All Cards ordered by Schoolpop                            and supplied by AEIS shall be governed by the terms                            and conditions of this Agreement and the Trust                            Agreement.

11

e.       Notwithstanding anything contained herein to the contrary, the                   cumulative liability of the parties to one another for any                   claims, liabilities, losses, damages or expenses, direct or                   indirect, arising out of or related to this Agreement shall                   not exceed the lesser of $50,000 or (not including other                   funding amounts such as the Point value of Cards) or the                   amount paid by Schoolpop to AEIS for the immediately preceding                   twelve (12) months provided, however, that in no event shall                   this limitation of liability apply to any claims, liabilities,                   losses, damages, or expenses, direct or indirect, arising out                   of or related to this Agreement brought by the actions of                   Schoolpop pursuant to paragraphs 4(e), 4(i), 4(k), 4(p), 5(a),                   5(b), 6(b), 7(a), 7(d), 14(d.iii), 9(f) and Sections 2, 3 11,                   12, and 13, and Exhibit 1 of this Agreement. In no event shall





either party be liable to the other, under any theory, for                   lost profits, exemplary, punitive, special incidental,                   indirect, or consequential damages.

f.       In the event that either party breaches or violates any                   covenant or agreement contained in this Agreement, or in the                   event of any breach or violation (or alleged breach or                   violation) of any covenants or agreement made by LoyaltyPoint                   with any Client or other third party, the breaching party                   shall indemnify and hold harmless the other party, its                   affiliates, parent company(ies), officers, directors,                   employees, and agents against and in respect of any and all                   costs, expenses, deficiencies, litigation, proceedings, taxes,                   levies, assessments, attorneys' fees, damages or judgments of                   any kind or nature whatsoever, related to, arising from, or                   associated with such breach or violation (or alleged breach of                   violation). The non-breaching party shall give the breaching                   party prompt notice of the non-breaching party's intention to                   make a claim for indemnification hereunder. the breaching                   party shall have the opportunity to defend the underlying                   claims, suit or proceeding by competent counsel of its own                   choosing, provided that non-breaching party has approved such                   counsel, which approval shall not be unreasonably withheld.                   The non-breaching party shall cooperate in the defense of such                   claim, suit or proceeding. The obligations under this Section                   14 shall survive the termination, cancellation, and expiration                   of this Agreement.

g.       Any notice required or permitted under this Agreement will be                   effective if in writing and delivered personally, sent by                   certified U.S. Mail, return receipt requested, postage                   prepared, sent by a national overnight delivery service (such                   as Federal Express), or sent by telefax, in each instance                   addressed and delivered personally or sent for delivery as                   provided on the signature page of this Agreement. Any notice                   shall be deemed given (a) if personally delivered when                   received by the intended recipient, (b) if sent by telefax,                   when sent and receipt is confirmed, provided that the                   recipient is sent another copy by one of the other means of                   notice specified in this section, or (c) if sent by certified                   mail or overnight delivery, on the earlier of the date of                   receipt by the intended recipient or three (3) days after the                   date on which the notice is sent.

h.       Upon termination of this Agreement, Schoolpop shall have the                   right to continue to sell any Cards in its possession for a                   period of three (3) months following the effective date of                   termination, subject to compliance with the applicable terms                   and conditions set forth herein, provided however, that                   termination of the Agreement is not due to a breach of                   representation or warranty of the Agreement by Schoolpop in                   which case Schoolpop shall discontinue selling Cards                   immediately upon termination.

[Signature Pages Attached]

12

Signed for and on behalf of SCHOOLPOP INC.

Name: Paul Robinson                                     -------------------------------------------- Title: Chief Executive Officer

Its duly authorized agent in the presence of:

Witness                                     --------------------------------------------

Printed name                                     --------------------------------------------

Name:  Sheree Herr                                     -------------------------------------------- Title: VP, Legal Management

Its duly authorized agent in the presence of:

Witness                                     --------------------------------------------

Printed name                                     --------------------------------------------

13





EXHIBIT 1

TRUST AGREEMENT - FULL LIABILITY

AGREEMENT between

American Express Incentive Services, L.L.C. organized under the laws of the State of Missouri, USA, with an office at 1309 North Highway Drive, Fenton, MO 63099, USA (AEIS)

And

Schoolpop, Inc., a Delaware corporation, with an office at 3100 Five Forks Trickum Road, Suite 410, Liliburn, GA 30047 USA (Seller).

1.       AEIS and Seller have entered into an American Express Stored Value          Products reseller Agreement of even date herewith pursuant to which          Seller is authorized to resell certain Cards as such term is defined          therein. As such, AEIS hereby appoints Seller as trustee and agent to          sell incentive cards issued by AEIS including Persona Select(R), Be My          Guest(R), Fill It Up(R), Encompass Select(R), and any other incentive          Card offered by AEIS (hereinafter collectively referred to as Cards)          in standard denominations of 25 Points, 50 Points and 100 Points          according to the specific terms in the Reseller Agreement Effective          August 1, 2004, and any amendments thereto.

2.       In consideration of its entitlement to the charges referred to in          paragraph (g) below, Seller accepts appointment as such trustee and          agent and agrees:

a.       To receive and hold in trust for AEIS, any Cards which are                   delivered to Seller until paid for by Seller. AEIS or their                   representatives or vendors may deliver Cards to any employee                   or representative of Seller and such employees and                   representatives are hereby authorized to accept such Cards on                   behalf of Seller.

b.       To acknowledge Seller's receipt of such Cards in writing to:                   (i) confirm and inform AEIS of the physical inventory of each                   Card delivery, and (ii) provide written confirmation of each                   Card delivery to an AEIS authorized representative by                   returning a completed Acknowledgement of Receipt form attached                   hereto as Schedule I and following the directions included                   thereon within 24 hours of receipt of each Card delivery                   received by or on behalf of Seller.

c.       To retain Cards in trust for AEIS in an inactive status as                   sent by AEIS until paid in full by Seller to AEIS. Inactive                   Cards do not have points loaded on the Cards and are not ready                   for sale to or use by any consumer.

d.       To prepay for each box of Cards to be sold by Seller. Upon                   clearance of funds for each box of Cards, AEIS shall activate                   the box of Cards at which time such box of Cards shall become                   property of Seller. Following such activation, each Card shall                   generally be ready for use at an appropriate establishment                   within two (2) business days.

e.       To sell the Cards in accordance with the written instructions                   of AEIS.

f.       To deliver to AEIS or their representatives any unsold Cards                   upon demand by AEIS.

g.       To collect any charges for the sale of Cards as may be                   established by Seller.

h.       To safeguard all Cards received by Seller at all times,                   including inactive and active Cards and when the Cards are in                   transit, as a prudent financial or commercial institution                   should safeguard a like amount of its own cash. All Cards kept                   on Seller's premises, both active and inactive, shall be kept                   locked in Seller's safe which safe must be satisfactory to                   AEIS. AEIS and/or their appointed representatives of AEIS or                   American Express Travel Related Services Inc. as solely                   determined by AEIS, shall be entitled to inspect and approve                   Seller's safekeeping facilities at any time during normal                   business hours.

i.       To notify AEIS at destination indicated on the Acknowledgement                   of Receipt Form, as soon as possible upon any loss of the                   Cards due to theft, burglary, fire or other cause. All                   notifications of loss must include the Card number for all                   lost Card stock. In the event an entire shipment was lost, the                   Card tracking number must also be provided. AEIS reserves the                   right to hold Seller liable for any loss, as to which Seller                   might not otherwise have been liable for under subparagraph                   2(k) below, if Seller has unreasonably delayed reporting the                   loss to AEIS, and such delay has disadvantaged AEIS or                   prejudiced AEIS' ability to mitigate or eliminate its damages.

14

j.       To maintain accurate records of all Cards sold or held in                   inventory, including Card numbers, shipment tracking numbers,





account numbers, and the Acknowledgement Receipt form, etc.

k.       To be responsible for any loss of any Cards received in                   accordance with subsection (a) above prior to the time such                   Cards are paid for by Seller, whether such loss occurs by                   theft, burglary, hold-up, fire, dishonesty of employees,                   mysterious disappearance, or any other cause irrespective of                   such cause. In the case of loss of Cards, Seller shall pay                   AEIS from time to time upon demand the amount of any Cards so                   reported as lost and later used at any merchant or other                   location or otherwise appear for sale for any reason                   whatsoever. Seller shall be fully liable for the amounts paid                   by AEIS and/or their affiliates with respect to such Cards                   together with any additional reasonable costs incurred by AEIS                   and/or their affiliates arising out of such Cards. Such                   liability shall survive termination of this Agreement.

l.       Not to sell Cards on credit or post-paid method of any kind to                   any individual, company, or entity whatsoever nor to utilize                   the Cards for the benefit of Seller, Seller's owners,                   officers, employees, representatives or any third party.

m.       To increase Seller's inventory of Cards by following AEIS'                   process.

n.       To destroy Cards for purposes of past expiration or reason                   other than termination that causes Seller to remove from                   inventory. Such Cards must be completely destroyed by                   cremating or shredding to the point where such Cards cannot be                   reconstructed in any way or Card numbers cannot be read in any                   way. Such destruction must be evidenced by execution of AEIS'                   Destruction Certificate, which is attached hereto as Schedule                   II. The Destruction Certificate shall be executed by Seller                   through two authorized signatures and shall particularly                   describe the Cards by (1) Card product name, (2) Card number,                   (3) denomination, (4) shipment tracking number, and (5)                   quantity by product and denomination, and account number.                   Seller shall pay AEIS associated destruction fees for such                   Card destruction as detailed within the Destruction                   Certificate. In the event any Cards certified as destroyed by                   Seller are later used at any establishment or other location                   or otherwise appear for sale for any reason whatsoever, Seller                   shall be fully liable for the amounts paid by AEIS and/or                   their affiliates with respect to such Cards together with any                   additional costs incurred by AEIS and/or their affiliates                   arising out of such Cards. In no event shall Seller throw away                   discard expired or spoiled or otherwise unwanted Cards in any                   other manner than described in this Section 2(n). Such                   liability shall survive termination of this Agreement.

o.       To pass to a security audit as performed by AEIS and/or their                   appointed representatives of AEIS or American Express Travel                   Related Services Inc. at a time and frequency solely                   determined by AEIS during the term of this Agreement. This                   Agreement shall be terminated by AEIS at AEIS' choice                   immediately upon Seller receiving a non-passing status of such                   security audit. AEIS may chose to allow Seller to conform to                   non-passing elements of security audit within a time so                   specified by AEIS in writing to Seller. Seller shall choose to                   make necessary changes to conform to the security audit or                   terminate the Agreement as so indicated in Section 4 below.

3.       This Agreement (a) may not be assigned by Seller without the written          consent of AEIS, except to an entity controlling, controlled by or          under common control with Seller, provided, however, Schoolpop shall          remain liable for the obligations contained herein including the          attachments and Exhibits thereto, and (b) may be modified only by an          agreement in writing signed on behalf of AEIS by an executive officer.          No other employees of AEIS have authority to modify or waive any term          of this Agreement. This Agreement may be assigned by AEIS to any          parent, subsidiary, affiliated or associate corporation without          Seller's consent and shall, whether or not so assigned, inure to the          benefit of any AEIS parent, subsidiary, associate or affiliate thereof          which pays or becomes liable upon any Cards delivered to Seller under          this Agreement.

4.       This Agreement shall remain in force until terminated by either party          by notice given in accordance with paragraph 8, below and in accordance          with Section 14(h) of the Agreement.

a.       Notices so given shall, unless otherwise specified                            therein, be effective upon receipt whereupon both                            parties shall cooperate in an effective wrap up of                            all outstanding issues and transition of inventory                            and other termination responsibilities as determined                            by AEIS.

b.       Upon such termination, Seller shall forthwith remit                            to AEIS or their agents all unsold Cards and shall                            safeguard such Cards during transit to AEIS in such a                            manner as detailed in Section 2(h) herein.

15

5.       The rights of AEIS hereunder shall not be prejudiced or restricted by





any time given or forbearance extended to Seller in the enforcement of          its rights and no waiver by AEIS of their rights in respect of any          breach hereof by Seller shall be deemed to operate as a waiver in          respect of any subsequent breach hereof.

6.       It is agreed between the parties that if any provision of this          Agreement is held to be invalid, the remainder of this Agreement shall          continue in full force and effect and shall be binding and effective on          the parties thereto.

7.       This Agreement shall be subject to and governed by the laws of the          State of Missouri, USA.

8.       All notices hereunder&sbsp;shall be mailed or faxed to the other party as          follows: Notices to Seller shall be addressed or faxed to it at the          address or fax number set forth on the first page hereof. Notices to          AEIS shall be addressed or faxed as to:

          American Express Incentive Services, L.L.C.     with a copy to:  General Counsel's Office          1309 North Highway Drive                                         American Express          Fenton, MO 63099                                                 200 Vesey Street          Attn: Legal Management                                           New York, N.Y. 10285-4908          Fax: (636) 226-2009                                              Attn: Marcy Wilkov                                                                           Fax: (212) 640-0360

[Signature Pages Attached]

16

Signed for and on behalf of SCHOOLPOP INC.

Name: Paul Robinson                                     -------------------------------------------- Title: Chief Executive Officer

Its duly authorized agent in the presence of:

Witness                                     --------------------------------------------

Printed name                                     --------------------------------------------

Name:  Sheree Herr                                     -------------------------------------------- Title: VP, Legal Management

Its duly authorized agent in the presence of:

Witness                                     --------------------------------------------

Printed name                                     --------------------------------------------

17

EXHIBIT 1.A

ACKNOWLEDGEMENT OF RECEIPT FORM

Schoolpop Inc., a for-profit company incorporated under the laws of the state of Delaware, USA with an office at 3885 Crestwood Parkway, Suite 550, Duluth, GA 30096 USA (hereinafter referred to as Seller).

Seller, named above, as trustee and agent of AEIS, acknowledges receipt of the Cards listed on page 2 of the Acknowledgement of Receipt Form hereof (Cards) and agrees: (1) to hold the Cards IN TRUST for AEIS pursuant to the terms of the Trust Agreement; (2) to sell the Cards only in accordance with written instructions from AEIS; (3) to collect such charges for the sale of Cards as Seller may establish from time to time; (4) to safeguard the Cards as a prudent person would safeguard a like amount of his own cash; (5) to notify AEIS promptly, at the address listed on page 2 of the Acknowledgement of Receipt Form hereof, of any loss of Cards due to theft, burglary, fire or any other cause. (6) (A) to be responsible for any loss of Cards unless the Cards were safeguarded in accordance with Section 2.h of the Trust Agreement and the loss occurred without Seller's fault. (B) to be absolutely responsible without regard to Seller's fault for any loss of Cards due to failure to safeguard the Cards in accordance with Section 2(h) of the Trust Agreement or due to the dishonesty of Seller's employees or agents or due to a disappearance which Seller cannot explain. (7) to pay AEIS upon demand for any Cards so lost which have been presented to any establishment or retailer in exchange for service(s) or product(s) so reported by Seller as lost and later used at any establishment or other location or otherwise appear for sale for any reason whatsoever, Seller shall be fully liable for an amount of money equal to the face value of amounts paid by AEIS and/or their affiliates with respect to such Cards together with any additional costs incurred by AEIS and/or their affiliates arising out of such Cards. and (8) that the terms hereof shall not relieve Seller of any obligation or liability under any other agreement relating to the sale of Cards





existing between Seller and AEIS, its parent, subsidiaries or affiliates. WARNING: Except in the event of termination of the Agreement Do Not Return Any of the Cards Listed on page 2 of the Acknowledgement of Receipt Form. If it is necessary to reduce Seller's inventory of Cards, including spoiled or expired Cards, destroy such Cards by cremating or shedding and evidence their destruction by a Destruction Certificate attached to the Agreement as Exhibit 1.C, applicable destruction fees shall apply. The Destruction Certificate shall be (i) on the Seller's letterhead, (ii) executed by Seller through two authorized signatures and (iii) shall particularly describe the Cards by (a) name of Card product, (b) Card number, (c) denomination, (d) shipment tracking number, and (e) quantity by product, denomination and account number. Schoolpop shall forward the original Destruction Certificate to AEIS and Schoolpop shall confirm receipt by AEIS. If this procedure is not practical, contact AEIS Client Service Support for specific instructions regarding disposition.

AMERICAN EXPRESS INCENTIVE SERVICES, L.L.C., is the designated servicing agent for the following Cards:

Persona(R) Select, Be My Guest(R), Fill It Up(R), Encompass(R) Select, and any other pre-denominated incentive card offered by AEIS.

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ACKNOWLEDGEMENT OF RECEIPT FORM - PAGE 2

Schoolpop, Inc., a for-profit company incorporated under the laws of the state of Georgia, USA with an office at 3885 Crestwood Parkway, Suite 550, Duluth, GA 30096 USA (hereinafter referred to as Seller)

------------------ --------------- -------------- --------------- ------------------- --------------------- ----------------- DATE RECEIVED       UPS TRACKING      PRODUCT       ACCOUNT #        DENOMINATION        BEGINNING CARD       ENDING CARD                        NUMBER                                                                NUMBER              NUMBER ------------------ --------------- -------------- --------------- ------------------- --------------------- -----------------                                                                                            ------------------ --------------- -------------- --------------- ------------------- --------------------- -----------------

------------------ --------------- -------------- --------------- ------------------- --------------------- -----------------

------------------ --------------- -------------- --------------- ------------------- --------------------- -----------------

------------------ --------------- -------------- --------------- ------------------- --------------------- -----------------

------------------ --------------- -------------- --------------- ------------------- --------------------- -----------------

------------------ --------------- -------------- --------------- ------------------- --------------------- -----------------

------------------ --------------- -------------- --------------- ------------------- --------------------- -----------------

------------------ --------------- -------------- --------------- ------------------- --------------------- -----------------

------------------ --------------- -------------- --------------- ------------------- --------------------- -----------------

------------------ --------------- -------------- --------------- ------------------- --------------------- -----------------

------------------ --------------- -------------- --------------- ------------------- --------------------- -----------------

------------------ --------------- -------------- --------------- ------------------- --------------------- -----------------

------------------ --------------- -------------- --------------- ------------------- --------------------- -----------------

Fax completed Acknowledgement of Receipt Form to Gregg Baum, 636.226.2004, or by certified mail to 1309 North Highway Drive, Fenton, MO 63099, attention: Gregg Baum.

19

EXHIBIT 1.B

AMERICAN EXPRESS INCENTIVE SERVICES, L.L.C.                               1309 N. HIGHWAY DRIVE                                 FENTON, MO 63099

Seller, named above, as trustee and agent of CERTIFICATE OF INVENTORY DESTRUCTION FOR ANONYOMOUS CARDS ONLY

MUST BE RECEIVED BY AEIS AT LEAST 15 DAYS PRIOR TO VALID THROUGH DATE ON CARD.

CLIENT NAME: SCHOOLPOP, INC.            DATE OF ORIGINATING ORDER:______________

CLIENT ADDRESS: 3885 CRESTWOOD PARKWAY, SUITE 550, DULUTH, GA 30096 USA

CLIENT ACCOUNT #:______________ DESTROYING WHOLE OR PART OF AN ORDER____________

1.       The undersigned hereby certifies that:

[X] Each of the cards described on the attached Schedule A              (the Cards) has been destroyed;          [X] Destruction of the Cards was necessary because              _______________________________________________          [X] The Cards were destroyed by this              Method:_____________________________________________________          [X] At the time of destruction, Schoolpop Inc. was the unconditional              trustee of each of the Cards and was holding in trust for AEIS, and





none of the Cards described herein have been assigned, transferred,              or issued to any person, firm, or corporation.

2.       Schoolpop, Inc., on behalf of itself and its successors and assigns,          agrees that should any charge(s) be incurred with respect to any of the          Cards, Schoolpop, Inc. will, upon request of American Express Incentive          Services, LLC (AEIS), pay AEIS the full amount of such charge(s) and          Schoolpop Inc. shall indemnify AEIS, its officers, and members, and          hold each of them harmless from and against any and all claims, actions          and suits, whether groundless or otherwise, and from and against any          and all liabilities, losses, damages, costs, charges and any other          expenses (including but not limited to attorneys' fees and expenses) of          every nature and character by reason of the cancellation and          destruction of the Cards or the making of any payment or costs incurred          as a result of any use of the Cards described herein.

SCHOOLPOP INC.

By:    -----------------------------------  Return this original Destruction                                         Certificate and completed Certificate of Name:                                   Inventory Destruction to AEIS at the      ---------------------------------  above address via certified mail or             &bbsp;                           other tracked shipment method. Title:       --------------------------------

Date:      ---------------------------------

WITNESS                                  WITNESS

Name:      ---------------------------------   ---------------------------------------

Title:       --------------------------------   ---------------------------------------

Date:      ---------------------------------   ---------------------------------------                  (Signature)                          (Signature)

20

EXHIBIT 1.C            CERTIFICATION OF INVENTORY DESTRUCTION FOR SCHOOLPOP, INC.

If the number of Cards destroyed requires more rows, use multiple pages of this form or type the denomination and Card numbers into a spreadsheet and attach the printed spreadsheet to this form.

----------------------- --------------------------------------------- ----------------------  DENOMINATION           CARD #                                        CARD STATUS (active                                                                       or inactive) ----------------------- --------------------------------------------- ----------------------                                                                  ----------------------- --------------------------------------------- ----------------------

----------------------- --------------------------------------------- ----------------------

----------------------- --------------------------------------------- ----------------------

----------------------- --------------------------------------------- ----------------------

----------------------- --------------------------------------------- ----------------------

----------------------- --------------------------------------------- ----------------------

----------------------- --------------------------------------------- ----------------------

----------------------- --------------------------------------------- ----------------------

----------------------- --------------------------------------------- ----------------------

----------------------- --------------------------------------------- ----------------------

----------------------- --------------------------------------------- ----------------------

----------------------- --------------------------------------------- ----------------------

Total number of ACTIVE Cards:________________________________

Total number of INACTIVE Cards:______________________________

Total number of CARDS________________________________________

Destruction Date:____________________________________________

Aggregate total denomination of Cards:_______________________





Client Authorized Signature:_________________________________

Printed Name:________________________________________________

Title:_______________________________________________________

21

EXHIBIT 2

SCHOOLPOP CARD PRICING

The following pricing is effective with the Effective date of this Agreement through the term of the Agreement and is subject to change as detailed in the Agreement.

Off-face point value based on volume mix:

Persona Select             8% Encompass Select           2% Fill It Up                 4% Be My Guest                4% Category Card              3% (Contingent upon achieving a four and one-half percent (4.5%) weighted average                                commission via the contracted merchant.) Grocery Card               3% (Contingent upon achieving a four percent (4%) weighted average commission via the                                contracted merchant.)

22

EXHIBIT 3

SCHOOLPOP ACCOUNT NUMBERS

1.       Effective with Period One, the following account numbers shall be used          by Schoolpop when placing Orders for Cards.

----------------------------------- ----------------------------------------- ---------------------------                       PRODUCT                              DENOMINATION                      ACCOUNT NUMBER          ----------------------------------- ----------------------------------------- ---------------------------                                                                                                         Persona(R) Select                              25, 50, and 100 Points                      8531          ----------------------------------- ----------------------------------------- ---------------------------          Encompass(R) Select                            25, 50, and 100 Points                      8536          ----------------------------------- ----------------------------------------- ---------------------------          Fill It Up(R)                                    25, and 50 Points                         8533          ----------------------------------- ----------------------------------------- ---------------------------

2.       Effective with Period Two, the following account numbers are to be used          by Schoolpop.

----------------------------------- ------------------------------------------ --------------------------                 PRODUCT                           DENOMINATION                      ACCOUNT NUMBER ----------------------------------- ------------------------------------------ --------------------------                                                                                       Persona(R) Select                                     25 Points                            8684 ----------------------------------- ------------------------------------------ -------------------------- Persona(R) Select                                     50 Points                            8685 ----------------------------------- ------------------------------------------ -------------------------- Persona(R) Select                                    100 Points                            8686 ----------------------------------- ------------------------------------------ --------------------------

----------------------------------- ------------------------------------------ -------------------------- Encompass(R) Select*                                  25 Points                            8705 ----------------------------------- ------------------------------------------ -------------------------- Encompass(R) Select                                   50 Points                            8687 ----------------------------------- ------------------------------------------ -------------------------- Encompass(R) Select                                  100 Points                            8801 ----------------------------------- ------------------------------------------ --------------------------

----------------------------------- ------------------------------------------ -------------------------- Fill It Up(R)                                         25 Points                            8681 ----------------------------------- ------------------------------------------ -------------------------- Fill It Up(R)                                         50 Points                            8683 ----------------------------------- ------------------------------------------ --------------------------

----------------------------------- ------------------------------------------ -------------------------- Be My Guest(R)                                        25 Points                            12095 ----------------------------------- ------------------------------------------ -------------------------- Be My Guest(R)                                        50 Points                            12098 ----------------------------------- ------------------------------------------ --------------------------

3.       Account numbers and effective dates for any products and/or          denominations in addition to the account numbers detailed above will be          provided to Schoolpop by AEIS upon completion of setup of such products          and/or denominations.





*Encompass(R) Select account numbers shall not be submitted with Orders effective December 31, 2004.

23

EXHIBIT 4

BRANDING QUICK REFERENCE GUIDE

1.       All communication pieces/media referencing Gift Cheques, all AEIS Card          products, American Express Incentive Services, AEIS, American Express,          and/or any American Express merchant must be submitted for approval.          Please allow five (5) to seven (7) business days for the branding          review. Typical turnaround is three (3) to five (5) days, however,          unusual circumstances may cause a delay in the typical turnaround. You          will be notified of any delay.

2.       Types of communications that require approval: Web sites, audio/visual          productions, printed materials (brochures, fact sheets, direct          mailings, newsletters, point of purchase displays), news releases, etc.

3.       Our agreement with our parent company, American Express, is that they          retain the authority to review every communication piece containing          references to the sources in the first bullet above. These approvals          are forwarded by AEIS to:

The American Express Advertising Review Board (ARB) who will review          the following:          Communications from an advertising perspective          How the product is being communicated          Card images          General Counsel's Office (GCO) who will review the following:          Communications from a legal perspective          Sweepstakes rules          Charitable mentions          Copyright infringements

4.       Product marks should be represented as follows:

Persona(R) Select          Encompass(R) Select          Fill It Up(R)          Be My Guest(R)

5.       Since American Express is not a bank and not affiliated with a bank,          terminology implying as much should not be used. Please refer to the          following examples:

--------------------------------------------------------- ---------------------------------------------------------------      DO NOT USE                                                REPLACE WITH      --------------------------------------------------------- ---------------------------------------------------------------                                                                   American Express Gift Card;                               American Express Incentive Services gift card;      American Express Reward Card;                             American Express Incentive Services reward card;      Gift/Reward Card from American Express                    American Express branded reward card;                                                                Reward card with the American Express brand      --------------------------------------------------------- ---------------------------------------------------------------      Statement                                                 Transaction Summary      --------------------------------------------------------- ---------------------------------------------------------------      Deposit; Credit                                           Load; add; fill      --------------------------------------------------------- ---------------------------------------------------------------                                                                Available funds/points;      Balance                                                   Remaining funds/points                                                                Point balance      --------------------------------------------------------- ---------------------------------------------------------------      Account                                                   Card      --------------------------------------------------------- ---------------------------------------------------------------      Merchants                                                 Establishments      --------------------------------------------------------- ---------------------------------------------------------------                                                                Similar to a debit card; A prepaid Card;      Debit/Credit Card         &sbsp;                               Stored-value Card; Reward Card      --------------------------------------------------------- ---------------------------------------------------------------

6.       The AEIS or American Express logos (Blue Box) are not to be used on          Client pieces, as it implies that AEIS and/or American Express are more          involved in the program than providing the reward product. The words          new and introducing are limited to the first six months of use.

24

7.       Development of Cards or communication materials associated with the          following industries (including showing images related to these          industries, e.g. pictures of guns, cigarettes, etc.) must be reviewed          on a case-by-case basis.          Alcohol          Tobacco          Gambling          Firearms          Under no circumstances may any advertising appear in the following          media:





Howard Stern          Rush Limbaugh          Don Imus

8.       Development of Cards with company names or logos from adult          entertainment or pornography industries is strictly prohibited.

9.       Use the correct service Mark or registered Mark the first mention of          the name on each page.

10.      AEIS and American Express will treat communications sent through the          branding process as confidential.

11.      This Quick Reference Guide is not all-inclusive. All communications are          subject to the sole approval of American Express.

25

EXHIBIT 4.A

BRANDING APPROVAL PROCESS OVERVIEW

GET READY You have the idea for the piece We send you a low-resolution card or Gift Cheque image, if needed, for placement purposes only (FPO) You develop the layout

GET SET You send us the layout and copy We will review it in AEIS Branding and send to American Express Review Units You should allow a five (5) day turnaround* We will return any revisions with the high-resolution image, if needed

GO! You produce and distribute the piece You send us three (3) copies of the final printed piece to keep on file You (and we) celebrate your success!

* Standard turnaround is three to five business days, however, if unusual circumstances occur, the turnaround may take longer. Should this occur, we will notify you of any delay.

26

EXHIBIT 4.B

AEIS MERCHANT APPROVAL GUIDELINES AND PROCESS

INTRODUCTION / OVERVIEW

The AEIS Communications Group requires review of any new or revised materials, which include any mention of Merchant Partners -- in order to ensure proper merchant guidelines. This includes ALL advertising, promotional and marketing materials in any medium (INCLUDING: COMMUNICATIONS, ADVERTISING, SALES PROMOTION COLLATERAL, DIRECT MAIL, PRESS RELEASES, VIDEOS, WEB SITES, PROMOTIONAL ITEMS, SALES PRESENTATIONS AND SIMILAR MATERIALS.) Copy and layout should be submitted as early as possible. Due to the type of communications piece, approval could take anywhere from 3 to 10 business days.

MERCHANT SUPPORTING DOCUMENTATION FOR APPROVAL GUIDELINES

Consumer applications are typically more involved. Generally, consumer programs are targeted to a wider audience; therefore, the implications are greater for the merchant. For this reason, the merchants mandate that AEIS seek individual approvals from each and every merchant.

Any standard applications using customized collateral should be reviewed by AEIS for content and accuracy. Even in the cases where standard program materials are to be used, AEIS will need to internally review any customized announcements and/or teasers. More than likely, these pieces feature only merchant names or merchant lists in print and can typically be approved within 24-48 hours.

Pieces using only select groups of merchants, photos or logos will generally require a higher level of approval and depending on the merchants used, may require approval from the merchant as well. The approval timeline will range from three to ten (3-10) business days for existing/ongoing.

Once, layout and copy are approved by AEIS Communications Group, Merchant Partnerships, Operations and American Express, any ongoing and additional changes must also be approved.

IMAGES, LOGOS, PRODUCT PATENT, AND REGISTERED/SERVICE MARKS

IMAGES AND LOGOS The following are examples of merchant image and logo usage, which require merchant approval through Merchant Partnerships:

o        Any communication or collateral, whether standard or customized,          containing merchant images or logos must be reviewed by Merchant          Partnerships o        Any new design work of merchant logos and images not previously          approved o        Use of standard merchant logos in any color other than the original          color o        Unique positioning of merchant images - surrounding merchants, etc.





o        Direct mail pieces, which include merchant references when only          select merchants are referenced. o        Unusual type of creative print work such as posters o        Borders around logos and busy backgrounds o        Any copy or tag-lines not previously approved o        Under no circumstances are press release photos to be used on or in          association with any form of communication relating to incentive card          programs unless approved by Merchant Partnerships' contact. o        Images and/or logos are not to be altered (cropped, inset, or overlaid)          unless approved by Merchant Partnerships' contact. o        All images used in magazine format must be obtain merchant copy write          information next to the image

MERCHANT PARTNERSHIPS RESERVES THE RIGHT TO REMOVE IMAGES AT ANY TIME          THAT MAY BE DEEMED INAPPROPRIATE REPRESENTATION OF THE MERCHANT (THIS          INCLUDES OUTDATED OR SEASONAL IMAGES AND LOGOS).

ALL QUESTIONS REGARDING MERCHANT COMMUNICATION APPROVAL SHOULD BE          SUBMITTED TO ANN FINK AT ANN.FINK@AEIS.COM, 636-226-2043.

27

EXHIBIT 5

CATEGORY CARD TARGET ACQUISITIONS

---------------------------------------------------------------------------------------------- PRIMARY CARD                              MARKETING CATEGORIES    TARGET MERCHANTS ---------------------------------------------------------------------------------------------- CONSUMER CATEGORIES: ----------------------------------------------------------------------------------------------                                                              Entertainment - Electronics & Misc        Electronics             Best Buy ---------------------------------------------------------------------------------------------- Apparel & Services                        Apparel                 TJ Maxx, Marshalls ---------------------------------------------------------------------------------------------- Household Furnishings & Equipment -       Major and Small         Best Buy Major and Small Appliance & Misc          Appliances household equipment ---------------------------------------------------------------------------------------------- Telephone Services                        Phones and Accessories  Best Buy ---------------------------------------------------------------------------------------------- Household Furnishings & Equipment -       Home furnishings and textiles and Furniture                    decorations             Home Goods ---------------------------------------------------------------------------------------------- Restaurants                               Restaurants             Darden (Red Lobster, Olive                                                                   Garden, etc.) ---------------------------------------------------------------------------------------------- Gifts - combined from all categories      Gifts                   Fossil                                                                   Crabtree & Evelyn*                                                                   Barnes & Nobles ---------------------------------------------------------------------------------------------- Entertainment - Tickets & Admissions      Entertainment           Regal Theatres, Hollywood                                                                   Video, Ticketsnow.com ---------------------------------------------------------------------------------------------- Gasoline & Motor Oil                      Auto Accessories        Autozone/TBD ---------------------------------------------------------------------------------------------- Entertainment - Toys                      Gifts                   Toys R Us ---------------------------------------------------------------------------------------------- Personal Care Products & Drugs            Drugs                   Walgreens ---------------------------------------------------------------------------------------------- ALTERNATE CATEGORIES: ---------------------------------------------------------------------------------------------- Office Supplies                           Office Supplies         Staples ---------------------------------------------------------------------------------------------- Sporting Goods                            Sporting Goods          Sports Authority ---------------------------------------------------------------------------------------------- Entertainment                             Pet Supplies            Petsmart ----------------------------------------------------------------------------------------------

28

EXHIBIT 5.A

GROCERY CARD TARGET ACQUISITIONS

Longs HEB Piggly Wiggly Save Mart ShopKo Safeway Staters

29 
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?
Example Output: 63040

Example Input: CERTAIN PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. SUCH OMITTED PORTIONS, WHICH ARE MARKED WITH BRACKETS [ ] AND AN ASTERISK*, HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. Exhibit 10.1 EXECUTION COPY   COOPERATION AGREEMENT   This AGREEMENT, dated as of June 27, 2017 (this Agreement), is made and entered into by The Meet Group, Inc., a Delaware corporation (the Company), and each of the persons set forth on the signature page hereto (each, an Investor and collectively, the Investors or, with their respective affiliates and associates, the Investor Group), which presently are or may be deemed to be members of a group with respect to the common stock of the Company, $0.001 par value per share (the Common Stock), pursuant to Rule 13d-5 promulgated by the U.S. Securities and Exchange Commission (the SEC) under the Securities Exchange Act of 1934, as amended (the Exchange Act);   WHEREAS, the Investor Group is deemed to beneficially own shares of the Common Stock totaling, in the aggregate, 4,425,000 shares of the Common Stock outstanding as of the date hereof; and   WHEREAS, the Company has agreed, at the request of the Investor Group, to cause Jim Parmelee (New Director A) and a person to be selected from the Director Candidate Pool (as defined herein) (New Director B) (collectively, the New Directors) to be appointed to the Company's Board of Directors (the Board), and to come to an agreement with respect to certain other matters as provided in this Agreement.   NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:   1. Board Composition Matters.    (a) Appointment of New Director A. The Company agrees that it shall take all action as is necessary (including, without limitation, calling a special meeting of the Board to approve all actions contemplated hereby), effective immediately following the execution of this Agreement, to (i) cause the Board to increase the size of its membership from six (6) to seven (7) members; (ii) accept the resignation of one existing member of the Board to become effective immediately prior to the appointment of New Director A; and (iii) appoint New Director A to the Board with a term on the Board expiring at the Company's 2018 Annual Meeting of Stockholders (the 2018 Annual Meeting) and until his successor is duly elected and qualified. The Company further agrees that without the unanimous approval of the Board, during the period from the execution of this Agreement until the expiration of the Standstill Period (as defined below), the size of the Board shall not be increased beyond seven (7) members.





    (i) Identification and Appointment of New Director B. No later than ninety (90) calendar days from the date of execution of this Agreement (the New Director B Appointment Deadline), the Company shall take the necessary steps to cause the Board to appoint one of the candidates set forth on Exhibit A (as the same may be supplemented or otherwise amended from time to time by the mutual constent of the Company and the Investor Group, the Director Candidate Pool) as New Director B with a term on the Board expiring at the 2018 Annual Meeting and until his or her successor is duly elected and qualified. The Company agrees that, if New Director B is not appointed to the Board prior to the New Director B Appointment Deadline and none of the candidates included in the Director Candidate Pool are willing to serve on the Board by the New Director B Appointment Deadline, (1) the Company and Investor Group will discuss in good faith the identification and selection of a mutually agreed upon substitute person to be added to the Director Candidate Pool following the same process that they would follow pursuant to Section 1(f) hereof if either of the New Directors, following their appointment to the Board, is unable to serve as a director for any reason, resigns as a director, or is removed as a director prior to the end of the term of office; and (2) the New Director B Appointment Deadline shall no longer apply and, in lieu thereof, shall be replaced by the time periods set forth in Section 1(f) hereof.   (b) Board's Review of Qualifications and Determination of Independence. Prior to the execution of this Agreement (i) the Nominating and Governance Committee of the Board (the Nominating Committee) has reviewed the qualifications of New Director A and each of the individuals included within the Director Candidate Pool to serve as members of the Board and has determined that they are so qualified, and (ii) the Board has determined that each of the New Directors and each of the individuals included within the Director Candidate Pool are independent as defined by the listing standards of NASDAQ.   (c) Committees. The Company agrees that, concurrent with the appointment of the New Directors to the Board, the Board shall take such action as is necessary such that each of the New Directors is appointed to at least one (1) of the three (3) standing committees of the Board that the Company is required to maintain in accordance with the NASDAQ listing standards; provided that, with respect to each such committee appointment, the New Director is and continues to remain eligible to serve as a member of such committee pursuant to applicable law and the rules of NASDAQ that are applicable to the composition of such committee.   (d) Board Policies and Procedures. The Investor Group acknowledges that each of the New Directors shall be required to comply with all policies, processes, procedures, codes, rules, standards, and guidelines applicable to members of the Board, as in effect from time to time, including, but not limited to, the Company's Code of Conduct, and policies on confidentiality, ethics, hedging and pledging of Company securities, public disclosures, stock trading, and stock ownership, and that each of the New Directors shall be required to strictly preserve the confidentiality of Company business and information, including the discussion of any matters considered in meetings of the Board whether or not the matters relate to material non-public information, unless previously publicly disclosed by the Company. Further, the Investor Group acknowledges that the New Directors will be requested to provide the Company with such information as is reasonably requested by the Company concerning the New Directors as is required to be disclosed under applicable law or stock exchange regulations, including the completion of the Company's standard director and officer questionnaire, in each case as promptly as necessary to enable the timely filing of the Company's proxy statement and other periodic reports with the SEC.     2





    (e) Rights and Benefits of the New Directors. The Company agrees that each of the New Directors shall receive (i) the same benefits of director and officer insurance, and any indemnity and exculpation arrangements available generally to the directors on the Board, (ii) the same compensation for his service as a director as the compensation received by other non-management directors on the Board, and (iii) such other benefits on the same basis as all other non-management directors on the Board.   (f) Replacements. The Company agrees that, during the Standstill Period (as defined below), if any of the New Directors is unable to serve as a director for any reason, resigns as a director, or is removed as a director prior to the end of the term of office, and at such time the Investor Group beneficially owns in the aggregate at least three percent (3.0%) of the Company's then outstanding Common Stock (subject to adjustment for share issuances, stock splits, reclassifications, combinations and similar actions by the Company that increase the number of outstanding shares of Common Stock), then the Company and the Investor Group shall work together in good faith to identify and select a replacement director candidate to be appointed to the Board which shall only be appointed to the Board after having been mutually agreed upon by both the Company and the Investor Group. Any such mutually agreed upon replacement director candidate shall qualify as independent pursuant to NASDAQ's listing standards and have the relevant financial and business experience to fill the resulting vacancy. Each of the Investor Group and the Company shall determine, and inform the other party of its determination, whether any proposed replacement director candidate is acceptable and meets the foregoing criteria, within ten (10) business days after such party has conducted interview(s) of such proposed replacement director candidate. Each of the Company and the Investor Group shall use their respective reasonable best efforts to cause any interview(s) contemplated by this Section 1(f) to be conducted as promptly as practicable, but in any case, assuming reasonable availability of the proposed replacement director candidate, within ten (10) business days after the receipt of such director candidate's credentials, including, but not limited to, a completed copy of the Company's standard director and officer questionnaire. Upon acceptance of a replacement director candidate by both the Company and the Investor Group, the Board shall take such actions as to appoint such replacement director candidate to the Board no later than ten (10) business days after both parties have confirmed in writing that they have mutually agreed upon such candidate. Following the appointment of any director to replace a New Director in accordance with this Section 1(f), any reference to New Directors herein shall be deemed to include such replacement director.     3





    2. Actions by the Investor Group.   (a) Voting Agreement.   (i) Stockholders Meetings. At each annual and special meeting of stockholders held prior to the expiration of the Standstill Period (as defined below), each of the Investors agrees to (A) appear at such stockholders' meeting or otherwise cause all shares of Common Stock beneficially owned by each Investor and their respective Affiliates and Associates (as defined below) to be counted as present thereat for purposes of establishing a quorum; (B) vote, or cause to be voted, all shares of Common Stock beneficially owned by each Investor and their respective Affiliates and Associates on the Company's proxy card or voting instruction form in favor of each of the nominees for election as directors nominated by the Board and recommended by the Board (and not in favor of any other nominees to serve on the Board); and, except in connection with any Opposition Matter (as defined below) or Other Voting Recommendation (as defined below), each of the proposals listed on the Company's proxy card or voting instruction form as identified in the Company's definitive proxy statement or supplement thereto in accordance with the Board's recommendations, including in favor of all matters recommended by the Board for stockholder approval and against all matters which the Board recommends against stockholder approval; provided, however, in the event that Institutional Shareholder Services Inc. (ISS) issues a recommendation with respect to any matter (other than with respect to the election of nominees as directors to the Board or the removal of directors from the Board) that is different from the recommendation of the Board, each of the Investors shall have the right to vote on the Company's proxy card or voting instruction form in accordance with the ISS recommendation (the Other Voting Recommendation); and (C) not execute any proxy card or voting instruction form in respect of such stockholders' meeting other than the proxy card and related voting instruction form being solicited by or on behalf of the Company or the Board. No later than five (5) business days prior to each annual or special meeting of stockholders held prior to the expiration of the Standstill Period, each Investor shall, and shall cause each of its Associates and Affiliates to, vote any shares of Common Stock beneficially owned by such Investors in accordance with this Section 2. No Investor nor any of its Affiliates or Associates nor any person under its direction or control shall take any position, make any statement or take any action inconsistent with this Section 2(a)(i). For purposes of this Agreement, Opposition Matter shall mean any of the following transactions but only to the extent submitted by the Board to the Company's stockholders for approval: (A) the sale or transfer of all or substantially all of the Company's assets in one or a series of transactions; (B) the sale or transfer of a majority of the outstanding shares of the Company's Common Stock (through a merger, stock purchase, or otherwise); (C) any merger, consolidation, acquisition of control or other business combination that results in a Change of Control (as defined below) of the Company; (D) any tender or exchange offer; (E) any dissolution, liquidation, or reorganization; (F) any changes in the Company's capital structure (but excluding any proposal regarding the adoption or amendment of equity plans, all of which shall not be deemed an Opposition Matter for purposes of this Agreement); or (G) any other transactions that would result in a Change of Control of the Company.   (ii) Actions By Written Consent. In connection with any action by written consent that is sought to be taken by any party, other than the Company or the Board, prior to the expiration of the Standstill Period (as defined below), each of the Investors agrees not to vote and to take all necessary action, including, without limitation, the execution and completion of any consent revocation card solicited by the Company or the Board, in accordance with the recommendation of the Board, to cause not to be voted, any of their shares of Common Stock beneficially owned by each Investor and/or their respective Affiliates and Associates on any consent card related to or affecting the removal, replacement or election of Board members and solicited by any party, other than the Company or the Board. No Investor nor any of its Affiliates or Associates nor any person under its direction or control shall take any position, make any statement or take any action inconsistent with this Section 2(a)(ii).   (iii) Special Meeting Demands. In connection with any demand by a stockholder of the Company that the Company call a special meeting of stockholders, made prior to the expiration of the Standstill Period (as defined below), each of the Investors agrees not to vote and shall take all necessary action, including, but not limited to, the execution and completion of any consent revocation card solicited by the Company or the Board in accordance with the recommendation of the Board, to cause not to be voted, any of their shares of Common Stock beneficially owned by each Investor and/or their respective Affiliates and Associates for any special meeting demand proposed or sought to be made by any party. No Investor nor any of its Affiliates or Associates nor any person under its direction or control shall take any position, make any statement or take any action inconsistent with this Section 2(a)(iii).     4





    3. Standstill.   (a) Each Investor agrees that, from the date of this Agreement until the expiration of the Standstill Period (as defined below), without the prior written consent of a majority of the Board specifically expressed in a written resolution, neither it nor any of its Related Persons (as defined herein) will, and it will cause each of its Related Persons not to, directly or indirectly, alone or with others, in any manner:   (i) propose or publicly announce or otherwise publicly disclose an intent to propose or enter into or agree to enter into, singly or with any other person, directly or indirectly, (x) any form of business combination or acquisition or other transaction relating to a material amount of assets or securities of the Company or any of its subsidiaries, (y) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its subsidiaries or (z) any form of tender or exchange offer for the Common Stock, whether or not such transaction involves a change of control of the Company;   (ii) engage in any solicitation of proxies or written consents to vote any voting securities of the Company, or conduct any non-binding referendum with respect to any voting securities of the Company, or assist or participate in any other way, directly or indirectly, in any solicitation of proxies or written consents with respect to any voting securities of the Company, or otherwise become a participant in a solicitation, as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Exchange Act, to vote any securities of the Company in opposition to any recommendation or proposal of the Board;   (iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single person under Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise, any additional securities (including common and preferred equity interests and debt that is convertible into any equity interests) of the Company or any rights decoupled from the underlying securities of the Company, that would result, or could result, in the Investor Group owning, in the aggregate (amongst all of the Investors and any Affiliate or Associate thereof), in excess of 10% of the shares of Common Stock outstanding;   (iv) seek to advise, encourage or influence any person with respect to the voting of (or execution of a written consent in respect of) or disposition of any securities of the Company, other than in a manner in accordance with Section 2;   (v) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, any securities (including common and preferred equity interests and debt that is convertible into any equity interests) of the Company or any rights decoupled from the underlying securities held by the Investors to any person or entity that would knowingly result in any third party, together with its Affiliates and Associates, owning, controlling or otherwise having any, beneficial, economic or other ownership interest representing in the aggregate 5% or more of the shares of Common Stock outstanding at such time;     5





    (vi) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, any securities (including common and preferred equity interests and debt that is convertible into any equity interests) of the Company or any rights decoupled from the underlying securities held by the Investors to any Affiliate or Associate of the Investors not a party to this Agreement;   (vii) except as otherwise set forth in this Agreement, take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company's management, governance, policies, strategic direction, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company's Amended and Restated Certificate of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;   (viii) call or seek to call, or request the call of, alone or in concert with others, any meeting of stockholders, whether or not such a meeting is permitted by the Company's Amended and Restated Certificate of Incorporation or Bylaws, including, but not limited to, a town hall meeting;   (ix) seek, alone or in concert with others, representation on the Board, except as expressly permitted by this Agreement;   (x) initiate, encourage or participate in any vote no, withhold or similar campaign;   (xi) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock (other than any such voting trust, arrangement or agreement solely among the members of the Investor Group that is otherwise in accordance with this Agreement);   (xii) seek, or encourage any person, to submit nominations in furtherance of a contested solicitation for the election or removal of directors with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors of the Company or with respect to the submission of any stockholder proposals (including any submission of stockholder proposals pursuant to Rule 14a-8 under the Exchange Act);     6





    (xiii) form, join or in any other way participate in any group (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than the Investor Group);   (xiv) demand a copy of the Company's list of stockholders or its other books and records, whether pursuant to Section 220 of the Delaware General Corporation Law (the DGCL) or pursuant to any other statutory right;   (xv) commence, encourage, or support any derivative action in the name of the Company, or any class action against the Company or any of its officers or directors in order to, directly or indirectly, effect any of the actions expressly prohibited by this Agreement or cause the Company to amend or waive any of the provisions of this Agreement; provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Investor from (A) bringing litigation to enforce the provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against an Investor, or (C) exercising statutory dissenters, appraisal or similar rights under the DGCL; provided, further, that the foregoing shall also not prevent the Investors from responding to or complying with a validly issued legal process in connection with litigation that it did not initiate, invite, facilitate or encourage, except as otherwise permitted in this Section (3)(a) (xv);   (xvi) disclose publicly or privately, in a manner that could reasonably be expected to become public any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement; provided, however, that nothing herein shall prohibit the Investor Group from engaging in private discussions with the Company concerning the Investor Group's views or suggestions concerning the Company;   (xvii) enter into any negotiations, agreements or understandings with any person or entity with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any person or entity to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing;   (xviii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any party;   (xix) take any action challenging the validity or enforceability of any of the provisions of this Section 3 or publicly disclose, or cause or facilitate the public disclosure (including, without limitation, the filing of any document with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to either (A) obtain any waiver or consent under, or any amendment of, any provision of this Agreement, or (B) take any action challenging the validity or enforceability of any provisions of this Section 3; or   (xx) otherwise take, or solicit, cause or encourage others to take, any action inconsistent with the foregoing.     7





    (b) Notwithstanding the foregoing, the provisions of this Section 3 shall not limit in any respect the actions of any director of the Company (including, but not limited to, the New Directors) in their capacity as such, recognizing that such actions are subject to such director's fiduciary duties to the Company and its stockholders (it being understood and agreed that neither the Investors nor any of their Affiliates or Associates shall seek to do indirectly through the New Directors anything that would be prohibited if done by any of the Investors or their Affiliates and Associates directly). For the avoidance of doubt, no provision in this Section 3 or elsewhere in this Agreement shall prohibit privately-negotiated transactions in the Common Stock solely between or among the Investors.   (c) As of the date of this Agreement, none of the Investors are engaged in any discussions or negotiations with any person, and do not have any agreements, arrangements, or understandings, written or oral, formal or informal, and whether or not legally enforceable with any person concerning the acquisition of economic ownership of any securities of the Company, and have no actual and non-public knowledge that any other stockholders of the Company have any present or future intention of taking any actions that if taken by the Investors would violate any of the terms of this Agreement. The Investors agree to refrain from taking any actions during the Standstill Period to intentionally encourage other stockholders of the Company, or any other persons to engage in any of the actions referred to in the previous sentence.   (d) As used in this Agreement, the terms Affiliate and Associate shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; the terms beneficial owner and beneficial ownership shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; the terms economic owner and economically own shall have the same meanings as beneficial owner and beneficially own, except that a person will also be deemed to economically own and to be the economic owner of (i) all shares of Common Stock which such person has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and whether they are conditional, and (ii) all shares of Common Stock in which such person has any economic interest, including, without limitation, pursuant to a cash settled call option or other derivative security, contract or instrument in any way related to the price of shares of Common Stock; the terms person or persons shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization or other entity of any kind or nature; and the term Related Person shall mean, as to any person, any Affiliates or Associates of such person.   (e) Notwithstanding anything contained in this Agreement to the contrary:   (i) The provisions of Sections 1, 2, and 3 of this Agreement shall automatically terminate upon the occurrence of a Change of Control transaction (as defined below) involving the Company if the acquiring or counter-party to the Change of Control transaction has conditioned the closing of the transaction on the termination of such sections; provided, however, that the Company shall not directly or indirectly, propose, seek, encourage or otherwise influence such acquiring or counter-party to the Change of Control transaction to condition the closing of such transaction on the termination of Sections 1, 2, and 3 of this Agreement; and     8





    (ii) For purposes of this Agreement, a Change of Control transaction shall be deemed to have taken place if (1) any person is or becomes a beneficial owner, directly or indirectly, of securities of the Company representing more than 50% of the equity interests and voting power of the Company's then outstanding equity securities or (2) the Company enters into a stock-for-stock transaction whereby immediately after the consummation of the transaction the Company's stockholders retain less than 50% of the equity interests and voting power of the surviving entity's then outstanding equity securities.   (f) For purposes of this Agreement, Standstill Period shall mean the period commencing on the date of this Agreement and ending at 11:59 p.m. Eastern Time on the date of the certification of the vote of stockholders at the 2018 Annual Meeting.   4. Expenses. Each of the Company and the Investors shall be responsible for its own fees and expenses incurred in connection with the negotiation, execution, and effectuation of this Agreement and the transactions contemplated hereby, including, but not limited to attorneys' fees incurred in connection with the negotiation and execution of this Agreement and all other activities related to the foregoing.   5. Representations and Warranties of the Company. The Company represents and warrants to the Investors that (a) the Company has the corporate power and authority to execute this Agreement and to bind it thereto, (b) this Agreement has been duly and validly authorized, executed and delivered by the Company, constitutes a valid and binding obligation and agreement of the Company, and is enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws generally affecting the rights of creditors and subject to general equity principles and (c) the execution, delivery and performance of this Agreement by the Company does not and will not violate or conflict with (i) any law, rule, regulation, order, judgment or decree applicable to it, or (ii) result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both could become a default) under or pursuant to, or result in the loss of a material benefit under, or give any right of termination, amendment, acceleration or cancellation of, any organizational document, or any material agreement, contract, commitment, understanding or arrangement to which the Company is a party or by which it is bound.   6. Representations and Warranties of the Investors. Each Investor, on behalf of itself, severally represents and warrants to the Company that (a) as of the date hereof, such Investor beneficially owns, directly or indirectly, only the number of shares of Common Stock as described opposite its name on Exhibit B and Exhibit B includes all Affiliates and Associates of any Investors that own any securities of the Company beneficially or of record and reflects all shares of Common Stock in which the Investors have any interest or right to acquire, whether through derivative securities, voting agreements or otherwise, (b) this Agreement has been duly and validly authorized, executed and delivered by such Investor, and constitutes a valid and binding obligation and agreement of such Investor, enforceable against such Investor in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws generally affecting the rights of creditors and subject to general equity principles, (c) such Investor has the authority to execute this Agreement on behalf of itself and the applicable Investor associated with that signatory's name, and to bind such Investor to the terms hereof, (d) each of the Investors shall use its commercially reasonable efforts to cause its respective Affiliates and Associates to comply with the terms of this Agreement and (e) the execution, delivery and performance of this Agreement by such Investor does not and will not violate or conflict with (i) any law, rule, regulation, order, judgment or decree applicable to it, or (ii) result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both could become a default) under or pursuant to, or result in the loss of a material benefit under, or give any right of termination, amendment, acceleration or cancellation of, any organizational document, agreement, contract, commitment, understanding or arrangement to which such member is a party or by which it is bound.     9





    7. Mutual Non-Disparagement.   (a) Each Investor agrees that, until the earlier of (i) the expiration of the Standstill Period or (ii) any material breach of this Agreement by the Company (provided that the Company shall have three (3) business days following written notice from such Investor of any material breach to remedy such material breach if capable of remedy), neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly, publicly make, express, transmit, speak, write, verbalize or otherwise publicly communicate in any way (or cause, further, assist, solicit, encourage, support or participate in any of the foregoing), any remark, comment, message, information, declaration, communication or other statement of any kind, whether verbal or in writing, that might reasonably be construed to be derogatory or critical of, or negative toward, the Company or any of its directors, officers, Affiliates, Associates, subsidiaries, employees, agents or representatives (collectively, the Company Representatives), or that reveals, discloses, incorporates, is based upon, discusses, includes or otherwise involves any confidential or proprietary information of the Company or its subsidiaries or Affiliates or Associates, or to malign, harm, disparage, defame or damage the reputation or good name of the Company, its business or any of the Company Representatives.   (b) The Company hereby agrees that, until the earlier of (i) the expiration of the Standstill Period or (ii) any material breach of this Agreement by an Investor (provided that such Investor shall have three (3) business days following written notice from the Company of any material breach to remedy such material breach if capable of remedy), neither it nor any of its Affiliates will, and it will cause each of its Affiliates not to, directly or indirectly, publicly make, express, transmit, speak, write, verbalize or otherwise publicly communicate in any way (or cause, further, assist, solicit, encourage, support or participate in any of the foregoing), any remark, comment, message, information, declaration, communication or other statement of any kind, whether verbal or in writing, that might reasonably be construed to be derogatory or critical of, or negative toward, the Investors or their Affiliates or Associates or any of their agents or representatives (collectively, the Investor Agents), or that reveals, discloses, incorporates, is based upon, discusses, includes or otherwise involves any confidential or proprietary information of any Investor or its Affiliates or Associates, or to malign, harm, disparage, defame or damage the reputation or good name of any Investor, its business or any of the Investor Agents.   (c) Notwithstanding the foregoing, nothing in this Section 7 or elsewhere in this Agreement shall prohibit any party from making any statement or disclosure required under the federal securities laws or other applicable laws.   (d) The limitations set forth in Section 7(a) and 7(b) shall not prevent any party from responding to any public statement made by the other party of the nature described in Section 7(a) and 7(b) if such statement by the other party was made in breach of this Agreement.     10





    8. Public Announcements. Promptly following the execution of this Agreement, the Company and the Investor Group shall issue a mutually agreeable press release (the Mutual Press Release), announcing certain terms of this Agreement, substantially in the form attached hereto as Exhibit C. Prior to the issuance of the Mutual Press Release, neither the Company nor any of the Investors shall issue any press release or make any public announcement regarding this Agreement or take any action that would require public disclosure thereof without the prior written consent of the other party. During the Standstill Period, neither the Company nor the Investor Group or any of its Affiliates or Associates shall make any public announcement or statement that is inconsistent with or contrary to the statements made in the Mutual Press Release, except as required by law or the rules of any stock exchange (and, in any event, each party will provide the other party, prior to making any such public announcement or statement, a reasonable opportunity to review and comment on such disclosure, to the extent reasonably practicable under the circumstances, and each party will consider any comments from the other in good faith) or with the prior written consent of the other party, and otherwise in accordance with this Agreement.   9. SEC Filings.    (a) No later than two (2) business days following the execution of this Agreement, the Company shall file a Current Report on Form 8-K with the SEC reporting the entry into this Agreement and appending or incorporating by reference this Agreement as an exhibit thereto. The Company shall provide the Investor Group and its counsel a reasonable opportunity to review and comment on the Form 8-K prior to such filing, which comments shall be considered in good faith.   (b) No later than two (2) business days following the execution of this Agreement, the Investor Group shall file an amendment to its Schedule 13D with respect to the Company that has been filed with the SEC, reporting the entry into this Agreement, amending applicable items to conform to their obligations hereunder and appending or incorporating by reference this Agreement as an exhibit thereto. The Investor Group shall provide the Company and its counsel a reasonable opportunity to review and comment on the Schedule 13D prior to such filing, which comments shall be considered in good faith.   10. Specific Performance. Each of the Investors, on the one hand, and the Company, on the other hand, acknowledges and agrees that irreparable injury to the other party hereto may occur in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or are otherwise breached and that such injury would not be adequately compensable in monetary damages. It is accordingly agreed that the Investors or any Investor, on the one hand, and the Company, on the other hand (the Moving Party), shall each be entitled to seek specific enforcement of, and injunctive or other equitable relief to prevent any violation of, the terms hereof, and the other party hereto will not take action, directly or indirectly, in opposition to the Moving Party seeking such relief on the grounds that any other remedy or relief is available at law or in equity.     11





    11. Notice. Any notices, consents, determinations, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); (iii) upon confirmation of receipt, when sent by email (provided such confirmation is not automatically generated) or (iv) one (1) business day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications shall be:   If to the Company:   The Meet Group, Inc. 100 Union Square Drive New Hope, PA 18938 Fax No.: (215) 862.7825 Email: fred@themeetgroup.com Attention: Frederic A. Beckley, Esq., General Counsel and Executive Vice President, Business Affairs   With copies (which shall not constitute notice) to:   Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W. Washington, DC 20004 Fax No.: (202) 739-3001 Email: keith.gottfried@morganlewis.com Attention: Keith E. Gottfried, Esq.   If to any Investor:   Harvest Capital Strategies LLC 600 Montgomery Street, Suite 1700 San Francisco, CA 94111 Fax No.: (415) 869-4433 Email: investments@harvestcaps.com Attention: Jeffrey B. Osher, Managing Director   With copies (which shall not constitute notice) to:   Olshan Frome Wolosky LLP 1325 Avenue of the Americas New York, NY 10019 Fax No.: (212) 451-2222 E-mail: swolosky@olshanlaw.com  afreedman@olshanlaw.com Attention: Steve Wolosky, Esq. Andrew Freedman, Esq.     12





    12. Governing Law. This Agreement shall be governed in all respects, including validity, interpretation, and effect, by, and construed in accordance with, the laws of the State of Delaware executed and to be performed wholly within the State of Delaware, without giving effect to the choice of law or conflict of law principles thereof or of any other jurisdiction to the extent that such principles would require or permit the application of the laws of another jurisdiction.   13. Jurisdiction. Each of the parties hereto (a) consents to submit itself to the personal jurisdiction of federal or state courts of the State of Delaware in the event any dispute arises out of this Agreement or the transactions contemplated by this Agreement, (b) agrees that it shall not bring any action relating to this Agreement or the transactions contemplated by this Agreement in any court other than the federal or state courts of the State of Delaware, and each of the parties irrevocably waives the right to trial by jury, (c) agrees to waive any bonding requirement under any applicable law, in the case any other party seeks to enforce the terms by way of equitable relief, and (d) irrevocably consents to service of process by first class certified mail, return receipt requested, postage prepaid, to the address of such party's principal place of business or as otherwise provided by applicable law. Each of the parties hereto irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action, suit or other legal proceeding with respect to this Agreement, (a) any claim that it is not personally subject to the jurisdiction of the above-named courts for any reason, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment before judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and (c) to the fullest extent permitted by applicable law, that (i) such action, suit or other legal proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such action, suit or other legal proceeding is improper or (iii) this agreement, or the subject matter hereof, may not be enforced in or by such court.   14. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 14.   15. Representative. Each Investor hereby irrevocably appoints Jeffrey B. Osher as its attorney-in-fact and representative (the Investor Group Representative), in such Investor's place and stead, to do any and all things and to execute any and all documents and give and receive any and all notices or instructions in connection with this Agreement and the transactions contemplated hereby. The Company shall be entitled to rely, as being binding on each Investor, upon any action taken by the Investor Group Representative or upon any document, notice, instruction or other writing given or executed by the Investor Group Representative.     13





    16. Entire Agreement. This Agreement constitutes the full and entire understanding and agreement among the parties with regard to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings and representations, whether oral or written, of the parties with respect to the subject matter hereof. There are no restrictions, agreements, promises, representations, warranties, covenants or undertakings, oral or written, between the parties other than those expressly set forth herein.   17. Headings. The section headings contained in this Agreement are for reference purposes only and shall not effect in any way the meaning or interpretation of this Agreement.   18. Waiver. No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy.   19. Remedies. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by law or equity.   20. Receipt of Adequate Information; No Reliance; Representation by Counsel. Each party acknowledges that it has received adequate information to enter into this Agreement, that it has had adequate opportunity to make whatever investigation or inquiry it may deem necessary or desirable in connection with the subject matter of this Agreement prior to the execution hereof, and that it has not relied on any promise, representation or warranty, express or implied not contained in this Agreement. Each of the parties hereto acknowledges that it has been represented by counsel of its choice throughout all negotiations that have preceded the execution of this Agreement, and that it has executed the same with the advice of said independent counsel. Each party cooperated and participated in the drafting and preparation of this Agreement and the documents referred to herein, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of the parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each of the parties hereto, and any controversy over interpretations of this Agreement shall be decided without regards to events of drafting or preparation. Further, any rule of law or any legal decision that would provide any party with a defense to the enforcement of the terms of this Agreement against such party shall have no application and is expressly waived. The provisions of this Agreement shall be interpreted in a reasonable manner to effect the intent of the parties.   21. Construction. When a reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement, unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words include, includes and including are used in this Agreement, they shall be deemed to be followed by the words without limitation. The words hereof, herein and hereunder and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The word will shall be construed to have the same meaning as the word shall. The words dates hereof will refer to the date of this Agreement. The word or is not exclusive. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms. Any agreement, instrument, law, rule or statute defined or referred to herein means, unless otherwise indicated, such agreement, instrument, law, rule or statute as from time to time amended, modified or supplemented.     14





    22. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree shall remain in full force and effect to the extent not held invalid or unenforceable. The parties further agree to replace such invalid or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the purposes of such invalid or unenforceable provision.   23. Amendment. This Agreement may be modified, amended or otherwise changed only in a writing signed by all of the parties hereto, or in the case of the Investors, the Investor Group Representative, or their respective successors or assigns.   24. Successors and Assigns. The terms and conditions of this Agreement shall be binding upon and be enforceable by the parties hereto and the respective successors, heirs, executors, legal representatives and permitted assigns of the parties, and inure to the benefit of any successor, heir, executor, legal representative or permitted assign of any of the parties; provided, however, that no party may assign this Agreement or any rights or obligations hereunder without, with respect to any Investor, the express prior written consent of the Company (with such consent specifically authorized in a written resolution adopted and approved by the unanimous vote of the entire membership of the Board), and with respect to the Company, the prior written consent of the Investor Group Representative.   25. No Third-Party Beneficiaries. The representations, warranties and agreements of the parties contained herein are intended solely for the benefit of the party to whom such representations, warranties or agreements are made, and shall confer no rights, benefits, remedies, obligations, or liabilities hereunder, whether legal or equitable, in any other person or entity, and no other person or entity shall be entitled to rely thereon.   26. Counterparts; Facsimile / PDF Signatures. This Agreement and any amendments hereto may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by the other parties hereto. In the event that any signature to this Agreement or any amendment hereto is delivered by facsimile transmission or by e-mail delivery of a portable document format (.pdf or similar format) data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or .pdf signature page were an original thereof.   [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]   [SIGNATURE PAGE FOLLOWS]     15





    [SIGNATURE PAGE TO COOPERATION AGREEMENT]   IN WITNESS WHEREOF the parties have duly executed and delivered this Agreement as of the date first above written.     THE MEET GROUP, INC.     By: /s/ Frederic Beckley  Name: Frederic Beckley Title: General Counsel & EVP Business Affairs   HARVEST SMALL CAP PARTNERS MASTER, LTD. By: Harvest Capital Strategies LLC Investment Manager   By: /s/ Jeffrey B. Osher  Name: Jeffrey B. Osher Title: Managing Director   HARVEST SMALL CAP PARTNERS, L.P. By: Harvest Capital Strategies LLC Investment Manager   By: /s/ Jeffrey B. Osher  Name: Jeffrey B. Osher Title: Managing Director   HARVEST SMALL CAP PARTNERS GP, LLC By: Harvest Capital Strategies LLC Investment Manager of the Limited Partner   By: /s/ Jeffrey B. Osher  Name: Jeffrey B. Osher Title: Managing Director   HARVEST CAPITAL STRATEGIES LLC   By: /s/ Jeffrey B. Osher  Name: Jeffrey B. Osher Title: Managing Director   /s/ Jeffrey B. Osher  JEFFREY B. OSHER     16





    CERTAIN PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. SUCH OMITTED PORTIONS, WHICH ARE MARKED WITH BRACKETS [ ] AND AN ASTERISK*, HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.     EXHIBIT A   DIRECTOR CANDIDATE POOL   [***]     17





    EXHIBIT B   STOCKHOLDERS, AFFILIATES, AND OWNERSHIP

Investor Shares of Common Stock Beneficially Owned    Harvest Small Cap Partners Master, Ltd.   2,763,182

Harvest Small Cap Partners, L.P.   1,661,818









Aggregate total beneficially owned by the Investor Group:   4,425,000

    18





    EXHIBIT C   FORM OF PRESS RELEASE   THE MEET GROUP REACHES AGREEMENT WITH HARVEST CAPITAL   Agrees to Appoint Two New Independent Directors to The Meet Group's Board   NEW HOPE, PA, June 27, 2017 - The Meet Group, Inc. (NASDAQ: MEET), a public market leader in the mobile meeting space, today announced that it has entered into a cooperation agreement with Harvest Capital Strategies LLC and its affiliates, which, in the aggregate, beneficially owns approximately 6.3% of The Meet Group's outstanding shares, regarding the composition of The Meet Group's Board of Directors. Under the terms of the agreement, The Meet Group has agreed to appoint to its Board two new independent directors: Jim Parmelee, who has agreed to join the Meet Group Board effective immediately, and a second director mutually acceptable to The Meet Group and Harvest Capital to be identified within the next ninety days.   Spencer G. Rhodes, The Meet Group's Chairman of the Board, stated, We are pleased to have reached this cooperation agreement with Harvest Capital, as we believe this outcome serves the best interests of The Meet Group and its stockholders. We are also pleased to welcome Jim Parmelee to our Board and look forward to the insights and experience he will bring.   Jeffrey B. Osher, the Managing Director of Harvest Capital, stated, We have spent considerable time with The Meet Group's senior management team and strongly support their strategy of creating a compelling portfolio of mobile meeting apps. Under Geoff Cook's leadership, The Meet Group has methodically grown its global platform while delivering consistent profitability and cash flow. We look forward to continuing our collaboration with The Meet Group's Board and senior management team as they execute on their long-term growth initiatives and focus on shareholder value creation.   Pursuant to the cooperation agreement, Harvest Capital has agreed that, until the certification of the shareholder vote at The Meet Group's 2018 Annual Meeting of Stockholders, it will abide by certain customary standstill provisions.   The cooperation agreement between The Meet Group and Harvest Capital will be included as an exhibit to a Current Report on Form 8-K that The Meet Group will file with the Securities and Exchange Commission.   Morgan, Lewis & Bockius LLP served as legal counsel to The Meet Group. Olshan Frome Wolosky LLP served as legal advisor to Harvest Capital.   The Meet Group also announced today that it has appointed The Blueshirt Group to lead its investor relations communications and strategy. The Blueshirt Group is a leading tech-focused investor relations firm that specializes in investor relations, IPO advisory, financial communications, financial media relations and crisis management.   About Jim Parmelee   Mr. Parmelee brings over 25 years of technology industry experience. He is currently an advisor to Hamilton Robinson Capital Partners, a middle market focused private equity firm. Jim was previously a Managing Director in Peak Ten Management LLC, where he was responsible for the firm's investments in the software, Internet and technology infrastructure verticals. Before Peak Ten, Jim was a Partner in Union Square Advisors, an M&A advisory firm focused on the technology sector, where he led the firm's global Information Technology infrastructure practice. Jim was previously a leading data networking and telecom equipment equity research analyst at Credit Suisse First Boston (now Credit Suisse). Jim was highly ranked by external polls throughout his research career including being named six times to Institutional Investor Magazine's All America Research Team.     19





    About The Meet Group The Meet Group (NASDAQ: MEET) is a fast-growing portfolio of mobile apps designed to meet the universal need for human connection. Using innovative products and sophisticated data science, The Meet Group keeps its approximately 2.8 million mobile daily active users engaged and originates untold numbers of casual chats, friendships, dates, and marriages. The Meet Group offers advertisers the opportunity to reach customers on a global scale with hundreds of millions of daily mobile ad impressions. The Meet Group utilizes high user density, economies of scale, and leading monetization strategies with the goal of maximizing adjusted EBITDA. Our apps - currently MeetMe , Skout , Tagged , and Hi5  - let users in more than 100 countries chat, share photos, stream live video, and discuss topics of interest, and are available on iPhone, iPad, and Android in multiple languages. For more information, please visit themeetgroup.com.   MEET Investor Contact:   The Blueshirt Group Allise Furlani allise@blueshirtgroup.com     20

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Question: Highlight the parts (if any) of this contract related to Anti-Assignment that should be reviewed by a lawyer. Details: Is consent or notice required of a party if the contract is assigned to a third party?
Example Output:
51066