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EXHIBIT 10.23
MASTER AMENDMENT NO. 1
to
MOTOROLA INC. RADIUS COMMUNICATION PRODUCTS RESELLER AGREEMENT
("Agreement")
between
MOTOROLA, INC. ("Motorola")
and
BearCom Operating L.P. ("Reseller")
Dallas, TX (City, State")
Effective the Motorola execution date shown below, Reseller and Motorola
agree that the Agreement is changed as follows:
A. Subparagraph 9(b)(8) of the Agreement entitled, "TERM, TERMINATION" is
replaced in its entirety with the following:
"any direct or indirect sale of the Products by Reseller that does
not comply with Reseller's covenant to limit its distribution of the Products
purchased under this Agreement to direct sale by Reseller only to customers at
retail for end use as limited by the terms and conditions of this Agreement."
B. The following new sections are added to the end of the Agreement:
" AA. RESELLER MARKETING REPORTS
Reseller shall provide to Motorola by the first Wednesday of each
month during any term of this Agreement, a marketing report ("Reseller
Marketing Report") by customer name setting forth the number of units of each
of the Products sold by Reseller during the preceding month, including dollar
volume of sales by ultimate destination zip code, customer Standard Industrial
Code ("SIC"), or other categories or industry groupings requested by Motorola.
Reseller shall provide said information by completing and sending to Motorola a
marketing report in whatever form requested by Motorola. The current form of
marketing report is attached to this amendment as Attachment 1-Reseller
Marketing Report Form.
In the event Reseller fails to provide Motorola any marketing report
called for by this Agreement and Reseller fails to cure such failure within
fifteen (15) days of notice of such failure from Motorola then, in addition to
Motorola's other rights and remedies under the Agreement, at law or in equity,
Motorola may withhold any further processing of any Reseller order for Products
until each such report is provided to Motorola as required by the Agreement.
BB. Per Unit Administrative Processing Charge
Reseller agrees to limit its distribution of the Products purchased
under the Agreement to direct sale by Reseller to customers at retail for end
use as limited by the terms and conditions of the Agreement. Reseller
acknowledges that its defined role in Motorola's distribution system is
necessary in order to encourage Motorola, Reseller and Motorola's other
resellers, distributors and dealers to make the distribution efforts necessary
to expand Motorola's distribution of Products and to provide the highest levels
of customer satisfaction.
(See Reverse Side)
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Reseller and Motorola agree that Motorola shall incur serious damages
if Reseller's sale of any Products unit fails to comply with the aforementioned
provisions of the Agreement and, further, that the amount of those damages are
uncertain and difficult of estimation because such damages include by way of
illustration but not limitation, Motorola undertaking a variety of record
keeping, administrative and operational activities and the costs and expenses
related thereto for each such breach of the Agreement by Reseller.
In addition to Motorola's other rights and remedies under the
Agreement, at law or in equity, to compensate Motorola for such damages,
Motorola and Reseller agree that for each such Products unit sale, as
stipulated damages and not as a penalty, on a per Products unit involved in the
transaction basis, the stipulated sum shall be a Per Unit Administrative
Processing Charge which shall consist of the difference between Motorola's
Suggested List Price and the Reseller purchase price listed in Motorola's then
current Reseller Price Book for each Products unit involved in each such
non-compliant sale ("Per Unit Administrative Processing Charge"). To assist in
the identification of each Reseller Products unit subject to the Per Unit
Administrative Processing Charge"). To assist in the identification of each
Reseller Products unit subject to the Per Unit Administrative Processing
Charge, Reseller shall give to Motorola full cooperation and access to all of
the Reseller's books, contracts and records related in any way to Reseller's
sale of Products units, and to furnish to Motorola all other information with
respect to its affairs, as deemed necessary by Motorola, to identify each such
Products unit.
Motorola shall invoice Reseller for each Per Unit Administrative
Processing Charge. Payment for each such invoice shall be due upon Reseller's
receipt of invoice. In the event Reseller fails to pay an outstanding Per Unit
Administrative Processing Charge invoice within thirty (30) days of the date
such payment is due, in addition to Motorola's other rights and remedies under
the Agreement, at law or in equity, Motorola may withhold any further
processing of any Reseller order for Products until such payment is made."
C. This Master Amendment No. 1 replaces and supercedes any existing
amendment to the Agreement which had as its purpose an amendment to Paragraph
9(b)(8) of the Agreement. Upon the Motorola execution date shown below, any such
existing amendment between Reseller and Motorola is no longer of any force or
effect.
Except as specifically amended above, the Agreement remains in full force and
effect in accordance with all its terms, conditions and amounts.
MOTOROLA, INC.: RESELLERS:
PAGE COM GP INC
By: /s/ XXX XXXXXXXX By: /s/ XXXX X. XXXXXX
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Print Name: Xxx Xxxxxxxx Print Name: Xxxx X. Xxxxxx
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Title: VP, Division General Manager, Print Title: Gen'l Partner
RPAG - US & CANADA -------------------------------
General Partner of Bearcom Operating LP
Motorola Execution Date: Sept 20 1996 Reseller Execution Date: 9-11-96
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