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EXHIBIT 10.23
AGREEMENT
THIS AGREEMENT made and entered into on the date first set forth below by and
between Tel Com Plus, Inc., and Nevada Corporation hereinafter referred to as
"TCP" and Easy Cellular, Inc., hereinafter referred to as "EASY".
WHEREAS, TCP and EASY are engaged in the research, development, and production
of certain telephonic services and/or products, and
WHEREAS, the officers and Boards of Directors of TCP and EASY believe it is in
the best interest of both companies to enter into this Agreement.
WITNESSETH
NOW, THEREFORE, in consideration of the mutual promises set forth below the
parties do herein agree:
1. 360 RELATIONSHIP: Easy warrants and assures that it has a
contractually binding relationship with 360 Communications hereinafter "360"
for regional and/or national reselling purposes.
1.01 EASY warrants that it's contractual relationship with
360 includes but is not limited to delivering commercial and/or residential
cellular services provided by and/or through a switching platform.
2. USE OF FUNDS ANALYSIS: EASY warrants that it shall prepare or
cause to be prepared and thereafter, provide a use of funds analysis, which
will include all proposed expenditures identifying specific allocations.
2.01 EASY warrants that it shall prepare or cause to be
prepared a three (3) year financial forecast for each location.
2.02 EASY shall prepare and/or cause to be prepared and
subsequently provide to TCP an operational financial statement for each
currently existing facility. Said operational financial statement shall include
sales revenues and operational costs only.
3. LLC FORMATION: The Parties hereto agree that certain LLC's
will be formed and subsequently registered as foreign entities licensed to do
business in those various locations, in the United States, which are contained
within the 360 Communications FCC jurisdictional license(s) now and in the
future.
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4. OPERATIONAL: The Parties hereto agree that they will have an
equal voice in the overall control of the LLC(s), however EASY will be required
to operate the LLC(s) on a day to day basis.
5. LLC COSTS: The Parties hereto agree that the LLC will be
charged, by EASY, without xxxx up, the exact cost per minute, access fees,
activation fees, as those fees are charged to EASY, including any and all price
reductions, financial benefits or any other benefits provided to EASY, by 360
Communications on a regional and/or national basis.
6. OWNERSHIP INTEREST: The Parties hereto agree that any and all
units of any LLC subject to this Agreement will be distributed between the
Parties hereto on the basis of forty percent (40%) to EASY and sixty percent
(60%) to TCP. Such Units shall be distributed to the parties upon the closing
date of each LLC. Any net profits generated by the LLC(s) shall be distributed
and shared on the basis of ownership interest.
6.01 The frequency of distribution of any net profits
shall be agreed upon by the Parties hereto, but in no case less than on a
quarterly operational basis of the LLC.
6.02. TCP and EASY agree that all revenues generated by the
LLC will be subject to preferential gross revenue distribution (minimum payment)
in the amount of ten percent (10%). Such minimum payment shall be payable on the
basis of five percent (5%) to TCP and five percent (5%) to EASY. The minimum
payment will be due and payable within fifteen (15) days from the conclusion of
each operational quarter without regard to profits being generated and will be
treated as an operational business expense.
6.03 TCP agrees that EASY shall receive an Initial
Management Fee of Fifty Thousand ($50,000) Dollars for each operational LLC
established for services rendered upon closing of each LLC unit no later than
thirty (30) days after opening.
7. EASY CONTRIBUTION: EASY will contribute to the LLC its
expertise, name identification, technology, trade secrets, reseller contracts
and any other intangible as may be required by the LLC. In addition EASY will
contribute any and all equipment and/or pricing agreements on a cost basis
without xxxx up.
9. PURCHASE AGREEMENT TERM: TCP's Purchase Agreement with the LLC
will have a term of ninety (90) days but will also include automatic extensions
as reasonably required.
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10. TCP'S CONTRIBUTIONS: TCP agrees to deposit a minimum of One
Hundred Thousand ($100,000) Dollars in the LLC account within thirty (30) days
of the execution of that certain Purchase Agreement to be executed between TCP
and the LLC(s).
11. CONSIDERATION: The Parties hereto acknowledged by their
signatures set forth below agree that the entire consideration to be paid and
contributed by either Party to this Agreement shall be the performance of said
Party as set forth herein.
12. NON-DISCLOSURE, NON-COMPETE: The Parties to this Agreement as
of the execution of this Agreement recognize and acknowledge that they may have
access to certain confidential information with regard to each other and such
information constitutes the valuable, special and unique property of each of the
parties. The parties shall not, during the term of this Agreement, or after the
term of this Agreement disclose any such confidential information concerning
the projects, technology, research, documents, methods of manufacture or trade
secrets of each other, as well as any and all customers and/or distributor
lists to any person, firm, corporation, association or other entity, for any
reason whatsoever, nor shall the parties disclose or use such information
itself after this Agreement is terminated.
14. ATTORNEY'S FEES: In the event a dispute arises among the
parties hereto, the prevailing party in any litigation relative thereto
(including appellate proceedings) shall be entitled to receive from the party,
reasonable attorney fees and costs.
15. TERMINATION:
15.01 CIRCUMSTANCES OF TERMINATION. This Agreement may be
terminated by (i) mutual consent of the Parties in writing upon the failure of
any Party hereto to perform as set forth herein; (ii) by any party to this
Agreement if there has been a material breach of any warranty or covenant by the
other party; or (iii) by any party to this Agreement if the Closing shall not
have taken place as set forth herein unless extended in writing to a later date
by mutual consent of the Parties hereto.
15.01 EFFECT OF TERMINATION. In the event of a termination
of this Agreement pursuant to the terms of this Agreement, each party shall
pay the costs and expenses incurred by it in connection with this Agreement and
no party or any of its officers, directors or employees shall be liable to any
other party for any costs, expenses, damages, or loss of anticipated profits.
16. JURISDICTION: This Agreement shall be interpreted under and
governed by the laws of the State of Nevada.
17. FURTHER DOCUMENTS: The parties shall upon notice execute
such other and further instruments and documents as may be reasonably required
in order to carry out the provisions and objects of this agreement.
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18. SEVERABILITY: In the event that any provision in this
agreement is finally determined by a competent judicial authority to be void or
unenforceable, the balance of this agreement shall remain in full force and
effect.
19. RIGHT OF FIRST REFUSAL: So long as TCP is not in default of
this Agreement, EASY warrants and guarantees that TCP shall have the right of
first refusal to purchase any and all of EASY's present and/or future programs.
Such right of first refusal shall extend to any and all cellular carrier
Agreements obtained by EASY now and in the future for the term of this
Agreement. The terms and conditions of this Agreement shall apply to any and all
programs offered to TCP by EASY under this right of first refusal. TCP agrees
that it shall have a maximum of thirty (30) days from date of receipt to accept
or reject any program presented to TCP by EASY unless such time is extended by
both parties to this Agreement.
20. RECORDS: The Parties hereto agree that EASY shall provide to
TCP, upon reasonable notice, access to review any and all EASY corporate
records relating to the subject matter of this Agreement. Said records include
but shall not be limited to existing resellers contract(s) with 360
Communications.
21. WAIVER: The waiver of any breach of this Agreement by either
party shall not constitute a continuing waiver or a waiver of any subsequent
breach either of the same or another provision of this Agreement.
22. FORMATION: Until signed by all parties, neither this document
nor any conversation or conduct shall be construed as waiver by anyone of any
rights or remedies regarding its subject matter, nor will any right accrue to
anyone except as outlined in this document. Regardless of the order of signing
if all signatures appear below, the Agreement shall be deemed an acceptance of
its subject matter, all other expressions of acceptance being hereby waived.
23. HOLD HARMLESS/INDEMNIFICATION: TCP warrants and guarantees to
hold harmless and indemnify EASY from any and all claims and/or allegations of
securities law violations. TCP agrees that the principals in any LLC shall be
"qualified" and or "accredited" as determined by self acknowledgment and
reviewed by an appointed compliance officer. TCP's Chief Legal Counsel has
agreed to serve in this capacity.
24. NOTICES: Any notice or other communication required,
permitted or desirable hereunder shall be sufficiently given if sent by United
States registered or certified mail, postage prepaid, addressed as follows:
Tel Com Plus, Inc. Easy Cellular, Inc.
3675 S. Rainbow 0000 X. Xxxxxx Xxxxxx
Xxxx 000, Xxxxx 000 Xxx Xxxxx, XX 00000
Xxx Xxxxx, XX 00000
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or such other address as shall be furnished in writing by the Parties. Any such
notice or communication shall be deemed to have been given as of the date so
mailed or on the date personally delivered, whichever is earlier.
24. ACKNOWLEDGMENT: The Parties hereto, acknowledged by their
signatures set forth below have read and understood this entire Agreement.
24. FACSIMILE SIGNATURES: Any facsimile signature on this
Agreement shall be considered an original and shall have the full force and
effect as if it were in fact an original.
25. SUCCESSORS AND ASSIGNS: This Agreement shall be binding on and
inure to the benefit of both parties to this Agreement and their successors,
assigns and heirs except as otherwise provided herein.
28. ENTIRE AGREEMENT: This Agreement shall constitute the full and
entire Agreement between the parties.
IN WITNESS WHEREOF, the parties hereto have set their hand and seal this 17 day
of January, 1997.
January 17, 1997 /s/ Xxxxxxx Xxxxxx
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Date Xxxxxxx Xxxxxx
CEO
Tel Com Plus, Inc.
Jan 18, 1997 /s/ Xxxxxxx Xxxxxxx
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Date Xxxxxxx Xxxxxxx
CEO
Easy Cellular, Inc.
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