1
EXHIBIT 4.21
REFERRAL AGREEMENT
------------------
REFERRAL AGREEMENT
This Agreement (the "Agreement") is made as of the 28th day of November, 2000,
by and between SHARED TECHNOLOGIES CELLULAR, INC., a Delaware corporation,
having offices at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxxxxx, XX 00000, (the
"Company"), and XXXXXXX XXXXXX, an individual having a place of business at 00
Xxxxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000 ("XXXXXX").
WHEREAS, XXXXXX has provided certain introductions to the Company with respect
to certain prospective licensors ("Licensors"), whose trademark(s) or
tradename(s) ("Marks") may be licensed to the Company in connection with the
Company's prepaid communications products, such as cellular phones and pagers
("Equipment"), and prepaid communications services ("Services"), which such
license agreements ("License Agreements") are identified in Exhibit A hereof;
and
WHEREAS, the Company agrees to compensate XXXXXX in connection with each License
Agreement, pursuant to the terms and conditions hereof.
NOW THEREFORE, in consideration of the promises and covenants contained herein,
the receipt and adequacy of which are acknowledged, the parties agree as
follows.
1. XXXXXX'X INTRODUCTION TO STC OF LICENSORS. XXXXXX has introduced the Company
to certain Licensors whose Marks may be used by the Company in connection with
the marketing and sale of Equipment and Services branded with such Licensors'
Marks. In particular, XXXXXX has facilitated discussions between the Company and
Licensors of the Marks "Xxxx Xxxxx" Xxxxx ("PDC") and Xxxxxxxx Xxxxx ("Xxxxx").
In the event that the Company enters into License Agreements for the use of the
PDC and Xxxxx Marks, then the Company shall Compensate XXXXXX in accordance with
Exhibit A hereof. The parties may amend Exhibit A from time to time to add
additional Licensor programs, as the parties may mutually agree.
2. TERM AND TERMINATION. This Agreement shall be effective as of the date hereof
and remain in effect until and for so long as any License Agreement identified
in Exhibit A is in effect. Upon the termination or expiration of the last
surviving License Agreement this Agreement shall automatically terminate without
notice. In the event that the Company does not enter into a License Agreement
for either the PDC or Xxxxx Xxxx within six (6) months of the date of this
Agreement, then this Agreement shall be deemed to be null and void as of the
date hereof.
3. COMMISSIONS. STC agrees to pay commissions ("Commissions") to XXXXXX during
the term hereof in accordance with Exhibit A attached hereto and made a part
hereof. All Commissions payable by the Company to XXXXXX hereunder shall be paid
in arrears, within thirty (30) days after the end of each month in which each
Commission accrues. The Company agrees to provide a report to XXXXXX along with
each Commission payment, detailing the basis for such Commission.
4. RELATIONSHIP OF THE PARTIES. XXXXXX shall at all times hereunder be deemed to
be an independent contractor of the Company. In no event shall XXXXXX'x
personnel be considered employees of the Company. Under no circumstances shall
the Company be responsible for workers' compensation premiums, disability
benefits, withholding taxes, social security, unemployment insurance or any
other taxes or benefits with respect to XXXXXX or its personnel. XXXXXX has no
authority to bind the Company in contract with any third party, including,
without limitation, any Licensor.
5. LIMITATIONS OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER,
DIRECTLY OR INDIRECTLY, FOR INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS),
INDIRECT, PUNITIVE OR SPECIAL DAMAGES ARISING IN ANY WAY OUT OF THIS AGREEMENT.
2
6. NOTICE. Whenever any notice is required to be given hereunder, such notice
shall be given in writing and personally delivered or sent by certified or
registered mail, return receipt requested, or overnight courier. Notice shall be
deemed to have been given at the time of receipt if personally delivered; three
(3) days after mailing if sent by certified or registered mail; or upon delivery
if sent by overnight courier. All notices shall be sent to the parties'
respective addresses set forth at the beginning of this Agreement. Either party
may change the address at which it is to receive notice by giving notice of the
change to the other party pursuant to this Section.
7. GENERAL.
(a) This Agreement shall be governed by the laws of the State of Connecticut,
without giving effect to any principle of conflict of laws.
(b) This Agreement, including any exhibits and attachments, constitutes the
entire understanding between the parties relating to the subject matter hereof
and supersedes any and all prior discussions, proposals or agreements, whether
oral or written. No modification, addition or waiver to this Agreement shall be
valid unless in writing signed by the parties hereto.
(c) In the event of a dispute arising out of this Agreement, the prevailing
party shall be entitled to recovery of its reasonable legal fees and expenses.
(d) The waiver of any provision of this Agreement shall not be construed as a
continuing waiver of the same or of other provisions hereof.
(e) Any obligation of a party hereto relating to monies owed, as well as those
provisions relating to confidentiality, limitation on liability,
indemnification, noncompetition and any other provisions that by sense and
context are intended to survive performance by either or both parties, shall
survive termination of this Agreement.
(f) The parties acknowledge that they have each read this Agreement in its
entirety, understand it and agree to be bound by the terms and conditions
contained herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their
duly authorized agents as of the date first written above.
3
Shared Technologies Cellular, Inc. Xxxxxxx Xxxxxx
By: /s/ XXXX X. XXXXX /s/ XXXXXXX X. XXXXXX
----------------------------- -----------------------------------
Its: Executive Vice President Date: November 28, 2000
Date: November 28, 2000
4
EXHIBIT A
COMMISSION SCHEDULE
Subject to the terms and conditions of this Agreement, Commissions payable under
Section 5 of the Agreement will be based on monthly collected revenues received
by the Company from the provision of Services and the sale of Equipment as
follows.
1. "Xxxx Xxxxx" Xxxxx and Xxxxxxxx Xxxxx Programs
(a) Equipment Sales. STC agrees to pay to XXXXXX monthly Commissions in an
amount equal to $0.25 per unit of Equipment sold with respect to Equipment sold
pursuant to a License Agreement for either the PDC or Xxxxx Xxxx.
(b) Usage Sales
(i) Direct Sales. STC agrees to pay to XXXXXX monthly Commissions in an
amount equal to one half (1/2%) of STC's collected monthly revenues from STC's
direct sale of Services through STC's IVR (integrated voice response system) or
its call center, to customers in connection with the use of Equipment sold
pursuant to a License Agreement for either the PDC or Xxxxx Xxxx.
(ii) Sales by Authorized Distributors. STC agrees to pay to XXXXXX monthly
Commissions in an amount equal to one-half percent (1/2%) of STC's collected
monthly revenues from the sale by STC and its authorized distributors of usage
cards for Services, which cards are branded with the Xxxx pursuant to a License
Agreement for either the PDC or Xxxxx Xxxx.
