EXHIBIT 10.1
COMMUNICATION TECHNOLOGY ADVISORS LLC
00 XXXXXXXXX XXXXX XXXXXXXXX, XXXXX XXXXX
XXXXXX, XX 000000
(518) 463-632, FAX (000) 000-0000
As of May 15, 2005
Globix Corporation
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
President and CEO
Dear Xxxxx:
Reference is made to that certain consulting agreement dated April 19,
2002 (the "Globix Agreement") between Communication Technology Advisors LLC
("CTA") and Globix Corporation ("Globix" or the "Company") and that certain
consulting agreement dated January 15, 2003 between CTA and NEON Communications,
Inc. (collectively, the "Agreements"). The purpose of this agreement is to
terminate the Agreements and to set forth our new agreement as more fully
described below.
1. TERMINATION OF AGREEMENTS. The parties hereto agree that the
Agreements are hereby terminated, except for those terms and conditions of the
Agreements that specifically survive termination of the Agreements; provided,
however, the parties hereto agree that no portion of paragraph 3 of the Globix
Agreement shall survive this termination of the Agreements.
2. ENGAGEMENT. Globix hereby retains CTA to support the Company's
ongoing business activities, including, without limitation, the integration of
the businesses of each of Globix and NEON Communications, business development
opportunities and such other general business support and advice. As such, CTA
will perform the following services (the "Services"), as may be requested by the
Company or its Board of Directors from time to time:
a) Assist senior management with the overall implementation of
the Company's business plan, as it relates to strategic growth
by identifying, analyzing and developing partnerships,
alliances and other business opportunities and relationships;
b) Assist senior management with the operations of the Company,
including review and recommendations with respect to the
Company's sales and marketing efforts and network improvements
and maintenance, and monitoring operating performance of the
Company's monthly operating results;
c) In connection with the foregoing, CTA will use its best
efforts to make Xxxxxxx Xxxxx available to Globix as the Chief
Integration Officer. In such capacity, Xx. Xxxxx will oversee
all of CTA's involvement in the integration of the businesses
of each of Globix and NEON;
d) Review with, and make recommendations to, senior management
with respect to the financial condition of the Company,
including monitoring revenue levels, assisting with the
reduction of liabilities and reviewing capital expenditures;
e) Provide advice and assistance with respect to customer and
vendor relations of the Company, specifically by leveraging
CTA's contacts and experience, related parties, affiliates and
other contacts for revenue opportunities and leveraging
combined purchasing opportunities for such parties;
f) Provide advice and assistance with regard to general industry
trends and competitive and market conditions in the business
areas in which the Company operates; and
g) Provide such other business advice and assistance as may be
reasonably requested from time to time by the Company or its
Board of Directors during the term hereof.
In addition to the foregoing, CTA agrees that it will also from time to
time present merger and acquisition advice and opportunities to the Company. The
parties agree to negotiate in good faith for a success fee for CTA in the event
that any such advice or opportunities results in the consummation of a merger or
acquisition for the Company.
CTA shall perform the Services contemplated hereunder in a good and
workmanlike manner.
3. TERM. The term of the engagement contemplated by this Agreement (the
"Term") shall commence on the date hereof (the "Commencement Date") and end on
May 14, 2006, unless earlier terminated in accordance herewith. This Agreement
may be extended by written agreement of the parties.
4. FEES AND EXPENSES. In consideration of the Services, the Company
shall pay CTA a monthly fee of $120,000 beginning on Commencement Date for the
Term of the engagement All payments contemplated hereunder shall 'be made on or
before the fifteenth of each month during the Term hereof and shall be made by
wire transfer in accordance with written instructions delivered by CTA to the
Company.
In addition to the monthly fees contemplated above, the Company shall
reimburse CTA for all reasonable out-of-pocket expenses incurred by CTA in
connection with CTA's obligations under this Agreement upon presentation to the
Company of appropriate supporting documentation relating to such expenses. All
expense reimbursement hereunder shall be made to CTA within a commercially
reasonable time period upon the presentation of such documentation to the
Company.
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5. INDEPENDENT CONTRACTOR. CTA shall serve as an independent contractor
to the Company and as such shall be responsible for all tax payments, estimated
tax payments or other tax liabilities, as required for itself and each
consultant and employee. CTA hereby expressly acknowledges and agrees that (a)
it and each of its consultants and employees is an independent contractor and is
not an employee of the Company, and (b) neither this Agreement nor any action
taken pursuant to this Agreement shall constitute or be evidence of any
agreement or understanding, express or implied, that CTA or any consultant or
employee of CTA is an employee of the Company or has any rights as an employee
of the Company.
6. CONFIDENTIALITY. CTA, agrees not to use any Confidential Information
(defined below) or disclose any Confidential Information to anyone other than
employees, principals, consultants, attorneys and other professionals of CTA,
who have acknowledged this confidentiality covenant and agree to be bound by it.
This confidentiality covenant shall be effective on the date hereof and shall
survive the termination of this Agreement. For purposes of this Consulting
Agreement, "Confidential Information" is (a) information contained in any
materials delivered to CTA pursuant to this Agreement, and (b) information which
relates to the Company's business affairs or that of any of its affiliates, but
does not include any information otherwise publicly available through no act or
failure to act on the part of CTA.
7. TERMINATION. This Agreement may be terminated prior to the end of
the Term hereof and the rights and remedies of the parties upon such termination
shall be as set forth in this section. Either party (the "Non-defaulting Party")
may terminate this Agreement upon a material breach of this Agreement by the
other party (the in "Defaulting Party") if such material breach is not cured by
the Defaulting Party within ten (10) days of its receipt of written notice
regarding such breach from the Non-defaulting Party. Other than termination as a
result of a material breach by CTA, the Company may terminate this Agreement
only by giving written notice to CTA of the Company's intention to terminate
this Agreement accompanied by payment of all billed and unpaid amounts due
hereunder from the Company to CTA for Services rendered through the date of
termination, plus all reimbursable amounts for which CTA has delivered to the
Company an invoice on or before the termination date (all unbilled amounts shall
be billed promptly, but shall not have a bearing on the termination). Not later
than 30 days following the termination date, CTA shall provide the Company with
an itemized invoice for (A) the number of months remaining in the Term hereof
times $120,000 and (B) all reimbursable expenses incurred but not billed by CTA
prior to the termination date, The Company will remit the amount set forth on
such invoice to CTA within 30 days following receipt of the itemized invoice.
8. INDEMNIFICATION. This Agreement will confirm that the Company agrees
to indemnify and hold harmless CTA and its affiliates, the respective members,
directors, officers and employees of CTA and its affiliates (as defined in the
Securities Exchange Act of 1934, as amended) and each person, if any,
controlling CTA or any of its affiliates (CTA and each such person and entity
being referred to as an "Indemnified Person"), to the fullest extent legally
permissible from and against any and all losses, claims, damages or liabilities
or actions related to or arising out of this engagement or the role of CTA in
connection herewith, and will pay (or, if paid by an Indemnified Person,
reimburse such Indemnified Person) for all fees and expenses (including, without
limitation, reasonable attorneys' fees) incurred by such Indemnified Person in
connection with investigating, preparing or defending any such action or claim,
whether or not in connection with pending or threatened litigation in which any
Indemnified Person is a party. The Company will not, however, be responsible for
any claims, liabilities, losses, damages or expenses which result from any
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compromise or settlement not approved by the Company or which result primarily
from the fraud, willful misconduct or gross negligence of any Indemnified
Person. The Company also agrees that no Indemnified Person shall have any
liability to the Company for or in connection with this engagement, except for
any such liability for losses, claims, damages, liabilities or expenses incurred
by the Company that results from the fraud, willful misconduct or gross
negligence of the Indemnified Person. The foregoing agreement shall be in
addition to any rights that either party may have at common law or otherwise,
including, without limitation, any right to contribution.
If any action or proceeding is brought against any Indemnified Person
in respect of which indemnity may be sought against the Company pursuant hereto,
or if any Indemnified Person receives notice from any potential litigant or a
claimant which such person reasonable believes will result in the commencement
of any such action or proceeding, such indemnified Person shall promptly notify
the Company in writing of the commencement of such action or proceeding, or of
the existence of such claim. In case any such action or proceeding shall be
brought against any Indemnified Person, the Company shall be entitled to
participate in such action or proceeding with counsel of the Company's choice,
or compromise or settle such action or proceeding, at its expense (in which
case, the Company shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by such Indemnified Person); provided, however,
that such counsel shall be satisfactory to the Indemnified Person in the
exercise of its reasonable judgment.
Notwithstanding the Company's election to assume the defense of such
action or proceeding, such Indemnified Person shall have the right to employ
separate counsel and to participate in the defense of such action or proceeding,
and the Company shall bear the reasonable fees, costs and expenses of such
separate counsel (and shall pay such fees, costs and expenses, at least
quarterly), if (i) the use of counsel chosen by the Company to represent such
Indemnified Person would, in the written opinion of counsel to the Indemnified
Person, present such counsel with a conflict of interest, (ii) the defendants
in, or targets of, any such action or proceeding include both Indemnified
Person(s) and the Company, and such indemnified Person(s) shall have reasonably
concluded that there may be legal defenses available to it or to other
Indemnified Persons which are different from or additional to those available to
the Company (in which case, the Company shall not have the right to direct the
defense of such action or proceeding on behalf of the Indemnified Person), (iii)
the Company shall not have employed counsel within twenty (20) business days
after notice of the institution of such action or proceeding (or such shorter
period if necessitated by the action); or (iv) the Company shall authorize such
Indemnified Person to employ separate counsel at the Company expense; provided,
however, that all such Indemnified Persons shall be limited to, and the
Company's obligation hereunder to bear reasonable fees and expenses of separate
counsel shall be satisfied by, the employment of one counsel for such action for
all Indemnified Persons.
In order to provide for just and equitable contribution, if a claim of
indemnification hereunder is found unenforceable in a final judgment by a court
of competent jurisdiction (not subject to further appeal), even though the
express provisions hereof provide for indemnification in such case, then the
Company and CTA shall contribute to the losses, claims, damages, judgments,
liability or costs to which the Indemnified Person may be subject in accordance
with the relative benefits received by, and the relative fault of, each in
connection with the statements, acts or omissions which resulted in such losses,
claims, damages, judgments, liabilities or costs, The parties agree that a pro
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rata allocation would be unfair. No person found liable for a fraudulent
misrepresentation or omission shall be entitled to contribution from any person
who is not also found liable for such fraudulent misrepresentation or omission.
Notwithstanding the foregoing, CTA shall not be obligated to contribute to any
amount hereunder that exceeds the amount of fees previously received by CTA for
its services to the Company under this Agreement. These indemnification
provisions shall (i) remain operative and in full force and effect regardless of
(A) any termination of this Agreement other than for fraud, willful misconduct
or gross negligence, or (B) completion of the engagement by CTA; (ii) inure to
the benefit of any successors, assigns, heirs or personal representatives of any
Indemnified Person; and (iii) be in addition to any other rights that any
Indemnified Person may have.
9. ENTIRE AGREEMENT. This Agreement represents the entire agreement
between the parties with respect to the subject matter hereof and may not be
modified, except in writing signed by both parties, This Agreement may be
executed in counterparts, each of which shall constitute an original. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision. This Agreement
supersedes in all respects all prior agreements between the Company and CTA.
10. SURVIVAL. The provisions of paragraphs 4 and 7 relating to the
Company's obligation in respect of CTA's fees and paragraph 8 relating to
indemnification shall survive any termination of this Agreement, in accordance
with their terms.
11. BINDING OBLIGATION; CHOICE OF LAW; JURISDICTION. Upon execution by
both parties, and subject to the approval of the Company's Board of Directors,
this Agreement will constitute a legally binding agreement between the Company
and CTA. The parties agree that the laws of the State of New York shall apply
regarding the interpretation and enforcement of this Agreement. The jurisdiction
and venue for all actions relating to this Agreement shall be the state and
federal courts located in New York County, New York.
12. NOTICES. All notices pursuant to this Agreement shall be in
writing, and hand delivered or mailed by first class mail, postage prepaid, or
sent via facsimile or overnight courier service to the attention of the person
listed below and to the party intended as the recipient thereof at the address
of such party set forth below, or at such lather address or to the attention of
such other person as such party shall have designated for such purpose in a
written notice complying as to delivery with the terms of this paragraph .
If to CTA: Communication Technology Advisors LLC
00 Xxxxxxxxx Xxxxx Xxxxxxxxx, Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
If to Globix: Globix Corporation
000 Xxxxxx Xxxxxx
Xxx Xxxx., Xxx Xxxx 00000
Attention: President and Chief Executive Officer
Fax: (000) 000-0000
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13. Failure by either party at any time to require performance by the
other party or to claim a breach of any provision of this Agreement will not be
construed as a waiver of any right accruing under this Agreement, nor affect any
subsequent breach, nor affect the effectiveness of this Agreement or any part
hereof; nor prejudice either party as regards any subsequent action.
If this letter does agreeably set forth the terms and conditions of the
subject matter hereof, please so indicate by signing a copy of this Agreement
and returning it to CTA.
Very truly yours,
Communication Technology Advisors LLC
By: /s/ Xxxxx X. Xxxxxxxxxx, Xx.
---------------------------------
Xxxxx X. Xxxxxxxxxx, Xx.
Chairman
Agreed to and accepted this ___ day of May 2005.
Globix Corporation
By:/s/Xxxxx X. Xxxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxxx
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