AGREEMENT GENERAL TERMS AND CONDITIONS
Exhibit
10.70
AGREEMENT
GENERAL
TERMS AND CONDITIONS
THIS
AGREEMENT
is made
by and between Xfone.USA,
Inc.
(“Xfone.USA”),
a
Mississippi corporation, and EBI Comm, Inc. (“EBI”), a Mississippi corporation,
and shall be effective on the Effective Date, as defined herein. This Agreement
may refer to either Xfone.USA
or EBI
or both as a “Party” or “Parties.” This Agreement reflects the terms and
conditions to acquire certain assets owned by EBI, (the “Transaction”).
| 1. |
Transaction
Terms.
|
| (a) |
Transaction
Structure. Xfone.USA
will purchase the customer base, including Dial-Up, Dedicated, Wholesale,
DSL and Hosted Domain customers, and certain equipment items of EBI
through the transfer of EBI’s assets, as described herein.
|
| (b) |
Assets
to be Acquired.
Xfone.USA
will purchase certain assets, tangible and intangible, owned by EBI
that
are used in, or necessary for the conduct of its business, including,
without limitation: (i) EBI’s trade name(s), trademarks and all related
intellectual property; (ii) EBI’s fixed assets, including assets in the
following locations: New Orleans - one (1) Cisco 24-Port Ethernet
Switch,
one (1) OmniView 8-Port KVM Switch, one (1) Barracuda Spam Firewall
300,
one (1) Dell Server, two (2) Custom Servers, one (1) ▇▇▇▇▇▇▇▇▇▇ Portmaster
2E, one (1) Dymeta TrimMail 420 Spam Filter; Columbus, MS - three
(3)
Custom Workstations, three (3) Custom Servers, one (1) Cisco Router,
two
(2) 3Com SW 3300 Ethernet Switches, 3 APC UPS Back ups; (iii) entire
customer base, including all hosted domains and all related peripheral
equipment, including cables and wires; (iv) any and all customer
lists;
and (iv) EBI’s current assets, including but not limited to, accounts
receivable.
|
| (c) |
Liabilities
to be Assumed.
Xfone.USA
will not assume any of EBI’s liabilities whatsoever, including but not
limited to accounts payable, payroll liabilities and any other payables
and accruals.
|
Xfone.USA
shall
not be responsible for any liabilities of EBI whatsoever and the assets
purchased shall be transferred to Xfone.USA
free and
clear of all liens or encumbrances of any kind or nature.
| (d) |
Consideration.
The aggregate consideration for the assets to be purchased will be
paid in
cash, cash equivalents or immediately available funds and will consist
of:
(i) a payout of fifty-percent (50%) of the monthly collected revenue
from
the customer base during the initial twelve (12) month period, which
shall
commence on the Effective Date of this agreement; (ii) any payment
due to
EBI will first be credited to I-55 Internet Services, Inc. or I-55
Telecommunications against any outstanding and unpaid amounts owed
for
services previously provided to EBI from the I-55 companies. *
THE AGREED TO BE DEDUCTED FROM THE 1ST
MONTH COLLECTIONS IS $7,728.00.
|
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| (e) |
Transition
Assistance.
Simultaneously with the execution of this Agreement as defined herein.
EBI
will use its reasonable best efforts to assist Xfone.USA
to
make a swift and complete transition. Beginning on the Effective
Date of
this Agreement, EBI will immediately remit, to Xfone.USA,
any funds received from its customers, along with the pertinent billing
information for each customer so Xfone.USA
can apply the proper credits to each customer’s
account.
|
| (f) |
Conditions
for Closing.
The closing of the Transaction is subject to the acceptance and execution
of this Agreement by the Owner/Manager or duly authorized executive
officer of EBI.
|
| (g) |
Cooperation
of the Parties.
Xfone.USA
and EBI will cooperate with each other to the fullest extent in the
execution of the Agreement. Xfone.USA
and
EBI will use their best efforts to take all steps necessary to consummate
the Transaction as soon as practicable but, in any event, prior to
December 31, 2005.
|
Additionally,
EBI will continue to assist Xfone.USA
in the
transition of EBI customers to Xfone.USA
after
the
close of the Transaction and throughout the initial twelve (12) month period
to
assist in collection of payments and with customer issues to insure the
retention of the customer base purchased during that time.
| (h) |
Indemnification.
EBI hereby indemnifies and agrees to hold Xfone.USA
harmless from, against and in respect of (and shall on demand reimburse)
Xfone.USA
for (i) any and all debts, all liabilities or obligations of EBI,
direct
or indirect, fixed, contingent or otherwise, which exists at or as
of the
Effective Date or which arises after the Effective Date but which
are
based upon or arise from any act, omission, transaction, circumstance,
sale of goods or services, state of facts or other conditions which
occurred or existed on or before the Effective Date and (ii) any
loss,
liability or damage suffered or incurred by Xfone.USA
by
reason of any untrue representation or non-fulfillment of any covenant
by
EBI contained in this Agreement or in any document executed or delivered
in connection with this Agreement. EBI shall reimburse Xfone.USA
for any indemnity claim within ten (10) days of demand and if the
claim is
not satisfied within said period, then Xfone.USA
shall be entitled to set off the amount of such indemnity claim against
any amounts due to EBI under this Agreement or any other
agreement.
|
| (i) |
Confidentiality.
The confidentiality shall not apply to any information which is (i)
publicly available, (ii) known to Xfone.USA,
as shown by credible evidence, prior to the date hereof, (iii)
independently developed by Xfone.USA
after the date hereof, as shown by credible evidence, or (iv) acquired
by
Xfone.USA
from a third party who has no obligation to keep such information
confidential. In the event the Transaction is not consummated for
any
reason whatsoever, Xfone.USA
shall promptly return all information to EBI and shall not make use
of any
proprietary information and/or trade secrets of
EBI.
|
| (j) |
Conduct
in Ordinary Course.
In
addition to the conditions discussed in this Agreement, consummation
of
the Transaction is subject to EBI conducting its business in the
ordinary
course during the period between the date hereof and the date of
final
transition and there having been no material adverse change in EBI’s
business, financial condition or
prospects.
|
-2-
2.
Expenses.
EBI, on
one hand and Xfone.USA,
on the
other hand, shall bear their respective expenses, costs and fees (including
attorneys and accountants) in connection with the Transaction contemplated
herby.
3.
Public
Announcements.
Neither
EBI nor Xfone.USA
will
make any announcement of the Transaction contemplated by this Agreement prior
to
the execution of this Agreement without the prior written approval of the other,
which approval will not be unreasonably withheld or delayed. By executing this
Agreement, EBI hereby authorizes Xfone.USA
to
publicize the signing of this Agreement. The foregoing shall not restrict in
any
respect EBI or Xfone.USA
ability
to communicate information concerning this Agreement and the transactions
contemplated hereby to their respective affiliates’, officers, directors,
employees and professional advisers, and, to the extent relevant, to third
parties whose consent is required in connection with the transaction
contemplated by this Agreement.
4.
Effective
Date.
The
Effective Date of this Agreement will be the date that of the last signature
affixed to this Agreement.
5.
Miscellaneous.
This
Agreement shall be governed by the substantive laws of the State of Mississippi
without regard to conflict of law principles. This Agreement constitutes the
entire understanding and agreement between the parties hereto and their
affiliates with respect to its subject matter and supersedes all prior or
contemporaneous agreements, representations, warranties and understandings
of
such parties (whether oral or written). No promise, inducement, representation
or agreement, other than as expressly set forth herein, has been made to or
by
the parties hereto. This Agreement may be amended only by written agreement,
signed by the parties to be bound by the amendment. Evidence shall be
inadmissible to show agreement by and between such parties to any term or
condition contrary to or in addition to the terms and conditions contained
in
this letter. This Agreement shall be construed according to its fair meaning
and
not strictly for or against either party.
IN
WITNESS WHEREOF, the Parties have executed this Agreement the day and year
written below.
|
Xfone.USA,
Inc.
|
EBI
|
|
|
By:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
|
By:
/s/ ▇▇▇▇ ▇▇▇▇
|
|
|
Name:
▇▇▇▇ ▇▇▇▇▇▇▇
|
Name:
▇▇▇▇ ▇▇▇▇
|
|
|
Title:
CEO/President
|
Title:
Owner
|
|
|
Date:
1/1/06
|
Date:
27 Dec 05
|
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