EXHIBIT 10.23
ASSET PURCHASE AGREEMENT
THIS AGREEMENT is entered into this 13 day of January, 2003, by and
between UNETCOMMERCE, INC., a Delaware corporation (the Seller"), XXXXX
TIRELLA ("Tirella") XXXXXX XXXXXX ("Xxxxxx"), and UNIVERSAL BROADBAND
COMMUNICATIONS, INC., a Nevada corporation (the "Purchaser").
WHEREAS, the Seller owns various assets more fully described in
Exhibit A attached hereto and incorporated herein by reference for all
purposes (the "Acquired Assets"); and
WHEREAS, Tirella and Xxxxxx own all of the issued and outstanding
capital stock of the Seller; and
WHEREAS, the Purchaser desires to purchase from the Seller the
Acquired Assets as more fully described hereinafter;
NOW, THEREFORE, in consideration of the foregoing, and the following
mutual covenants and agreements, the parties do hereby agree as follows:
1. PURCHASE OF ASSETS. The Purchaser does hereby agree to
purchase the Acquired Assets, free and clear of all liens, encumbrances,
charges, escrows, equities, and other restrictions. The Seller does
hereby agree to sell the Acquired Assets to the Purchaser. The Acquired
Assets shall be conveyed to the Purchaser contemporaneously with the
execution of this Agreement by the Seller by the execution and delivery
to the Purchaser of a xxxx of sale covering same.
2. PURCHASE PRICE. The purchase price (the "Purchase Price") to
be paid by the Purchaser to the Seller for the Acquired Assets shall be:
(a) 275,000 shares of the Purchaser's common stock, par value
$0.001 per share (the "Stock") have been delivered to each of Tirella and
Xxxxxx;
(b) An employment agreement executed between the Purchaser and
Tirella in the form described in Exhibit B attached hereto and
incorporated herein by reference for all purposes (the "Tirella
Employment Agreement");
(c) An employment agreement executed between the Purchaser and
Xxxxxx in the form described in Exhibit C attached hereto and
incorporated herein by reference for all purposes (the "Xxxxxx Employment
Agreement");
(d) Eight percent of the issued and outstanding shares of the
capital stock in a newly formed subsidiary of the Purchaser to Xxxxxx
(e) Twelve percent of the issued and outstanding shares of the
capital stock in a newly formed subsidiary of the Purchaser to Tirella;
and
(f) The sum of $80,000 in cash (the "Cash Payment") to be paid
to the Seller as follows: (i) on the 90th day following the execution of
this Agreement, the purchaser shall pay the Seller the sum of $20,000, in
cash; (ii) following 90 days after the date of this Agreement, the
Purchaser shall pay the Seller the sum of $60,000 in nine monthly
installments of $6,666.66 each, with the first payment to be due when all
of the following condition occurs: the Acquired Assets are producing at
least $100,000 in monthly net revenues (the "Revenue Commitment"). If
the Acquired Assets do not initially achieve the Revenue Commitment
within 12 months following the date of this Agreement, the Purchaser
shall have no further liability to the Seller hereunder. The Revenue
Commitment is to be determined in accordance with Generally Accepted
Accounting Principles.
3. REGISTRATION RIGHTS. The shares of the Stock for each of
Tirella and Xxxxxx shall be subject to registration rights pursuant to a
Registration Rights Agreement in the form described in Exhibit D and
Exhibit F attached hereto and incorporated herein by reference for all
purposes (collectively, the "Registration Rights Agreement").
4. CHANGE OF NAME OF THE SELLER. The Seller has delivered to the
Purchaser duly executed Articles of Amendment to its Certificate of
Incorporation reflecting the change of the Seller's corporate name to
some name other than UnetCommerce, Inc. along with the filing fee payable
to the Secretary of State of Delaware. The Purchaser shall see to the
filing of such Articles of Amendment to the Articles of Incorporation of
the Seller.
5. REPRESENTATIONS AND WARRANTIES OF THE SELLER, TIRELLA AND
XXXXXX. The Seller, Tirella and Xxxxxx represent and warrant as follows:
(a) OWNERSHIP OF THE ACQUIRED ASSETS. The Seller is the
record owner of the Acquired Assets and is duly authorized and empowered
to and has executed and delivered to the Purchaser a xxxx of sale
conveying good, absolute and indefeasible title to the Acquired Assets
being sold to the Purchaser hereunder, free and clear of all liens,
encumbrances, charges, escrows, equities, and other restrictions.
(b) CONDITION OF THE ACQUIRED ASSETS. As of the date hereof,
the Seller, Tirella and Xxxxxx warrant that all of the Acquired Assets
are in good operating condition with no known defects, and suitable for
their intended use.
(c) RECORDS. The books of account and minute books of the
Seller are complete and correct, and reflect all those transactions
involving its business which properly should have been set forth in such
books.
(d) LITIGATION. There are no legal actions, suits,
arbitrations, or other legal, administrative or other governmental
proceedings pending or threatened against the Seller and having a
material adverse effect on its properties, assets or business; and the
Seller, Tirella and Xxxxxx are not aware of any facts which to their
knowledge may result in any such action, suit, arbitration, or other
proceeding.
(e) INVESTIGATIONS. There are no investigations, actions,
suits, charges, complaints or other proceedings of any character pending,
threatened or otherwise asserted against or involving the Acquired Assets
at law or in equity by anyone of which the Seller, Tirella and Xxxxxx
have knowledge or should have knowledge.
(f) APPROVAL. The sale of the Acquired Assets and all other
provisions of this Agreement have been approved by the Board of Directors
and stockholders of the Seller at meetings duly called and held for the
purpose of voting on such sale and approval. The Seller, Tirella and
Xxxxxx have delivered to the Purchaser a true and correct copy of any
corporate resolution required hereunder, certified by its corporate
secretary.
(g) NO UNTRUE STATEMENTS. No representation or warranty by
the Seller, Tirella, or Xxxxxx in this Agreement or in any writing
furnished or to be furnished pursuant hereto, contains or will contain
any untrue statement of a material fact, or omits, or will omit to state
any material fact required to make the statements herein or therein
contained not misleading.
(h) RELIANCE. The foregoing representations and warranties
are made by the Seller, Tirella, and Xxxxxx with the knowledge and
expectation that the Purchaser is placing complete reliance thereon.
6. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants that the Purchaser has delivered to the Seller,
Tirella and Xxxxxx a copy of a resolution by the Board of Directors of
the Purchaser, certified to by the Secretary of the Purchaser that the
Board of Directors of the Purchaser has approved the execution of this
Agreement and any other document contemplated herein.
7. SURVIVAL OF WARRANTIES. All representations, covenants,
warranties and agreements made by the parties in this Agreement or in any
agreement, document, statement or certificate furnished hereunder or in
connection with the negotiation, execution and performance of this
Agreement shall survive the date of this Agreement and any instrument
delivered as described herein. Notwithstanding any investigation or
audit conducted before or after the date hereof or the decision of any
party to complete the sale and purchase described herein, each party
shall be entitled to rely upon the representations, covenants, warranties
and agreements set forth herein and therein.
8. NO BROKERS. Each of the parties represents and warrants to the
other parties that all negotiations relative to this Agreement have been
carried on by such party directly and without the intervention of any
person, firm, corporation or entity who or which may be entitled to any
brokerage or finder's fee or other commission in respect of the execution
of this Agreement or the consummation of the transactions contemplated
hereby, and each party shall indemnify and hold harmless all of the other
parties hereto against any and all claims, losses, liabilities or
expenses which may be asserted against any such other party as a result
of the dealings, arrangements or agreements of such party or any of its
affiliates with any such person, firm, corporation or entity.
9. INDEMNIFICATION BY THE SELLER, TIRELLA AND XXXXXX. The Seller,
Tirella, and Xxxxxx agree to indemnify and hold harmless the Purchaser
against and in respect to all damages (as hereinafter defined) in excess
of $5,000.00. Damages, as used herein shall include any claim, salary,
wage, action, tax, demand, loss, cost, expense, liability (joint or
several), penalty, and other damage, including, without limitation,
counsel fees and other costs and expenses reasonably incurred in
investigating or attempting to avoid same or in opposition to the
imposition thereof, or in enforcing this indemnity, resulting to the
Purchaser from any inaccurate representation made by or on behalf of the
Seller, Tirella, and Xxxxxx in or pursuant to this Agreement, breach of
any of the warranties made by or on behalf of the Seller, Tirella, or
Xxxxxx in or pursuant to this Agreement, or breach or default in the
performance by the Seller, Tirella or Xxxxxx of any of the obligations to
be performed by them hereunder.
Notwithstanding the scope of the representations and warranties of
the Seller, Tirella, and Xxxxxx herein, or of any individual
representation or warranty, or any disclosure to the Purchaser herein or
pursuant hereto, or the definition of damages contained in the
preceding sentence, or the Purchaser's knowledge of any fact or facts at
or prior to the date hereof, damages shall also include: all debts,
liabilities, and obligations of any nature whatsoever (whether absolute,
accrued, contingent, or otherwise, and whether due or to become due) of
the Seller, as of the date hereof not reflected in any exhibit furnished
hereunder, whether known or unknown by the Seller, Tirella or Xxxxxx; all
claims, actions, demands, losses, costs, expenses, and liabilities
resulting from any litigation from causes of action arising prior to the
date hereof involving the Seller or any shareholders thereof other than
Tirella or Xxxxxx, whether or not disclosed to the Purchaser; all claims,
actions, demands, losses, costs, expenses, liabilities and penalties
resulting from the Seller's failure to own or possess, and have good
title to all of the Acquired Assets to be acquired by the Purchaser
hereunder; all claims, actions, demands, losses, costs, expenses,
liabilities or penalties resulting from the failure of the Seller,
Tirella or Xxxxxx in any respect to perform any obligation required by
them to be performed at or prior to the date hereof, or by reason of any
default of the Seller, Tirella or Xxxxxx at the date hereof, under any of
the contracts, agreements, leases, documents, or other commitments to
which they, or either of them, are a party or otherwise bound or
affected; and all losses, costs, and expenses (including without
limitation all fees and disbursements of counsel) relating to damages.
The Seller, Tirella, or Xxxxxx, or any of them, shall reimburse
and/or pay on behalf of the Purchaser on demand for any payment made or
required to be made by the Purchaser at any time after the date hereof
based upon the judgment of any court of competent jurisdiction or
pursuant to a bona fide compromise or settlement of claims, demands or
actions, in respect to the damages to which the foregoing indemnity
relates. The Purchaser shall give the Seller, Tirella, or Xxxxxx written
notice within 30 days after notification of any litigation threatened or
instituted against the Purchaser which might constitute the basis of a
claim for indemnity by the Purchaser against the Seller, Tirella, or
Xxxxxx, or any of them. In the event that the Seller, Tirella, or Xxxxxx
fail to reimburse and/or pay on behalf of the Purchaser any amount which
the Purchaser is entitled to indemnification hereunder while there is any
balance remaining on the Cash Payment or the Tirella Employment Agreement
or the Xxxxxx Employment Agreement, in addition to any other remedies
either at law or in equity that may be then available to the Purchaser,
the Purchaser shall be entitled, at the Purchaser's option, to a credit
upon the Cash Payment and the Tirella Employment Agreement or the Xxxxxx
Employment Agreement for any amounts paid by the Purchaser, such credit
to be applied to the next maturing installments due on the Cash Payment
or the Tirella Employment Agreement or the Xxxxxx Employment Agreement
until all of such credit is utilized. In the event that after the
utilization of all of such credit the Purchaser is still entitled to
indemnity from the Seller, Tirella, or Xxxxxx hereunder, the Seller,
Tirella, or Xxxxxx shall reimburse and/or pay the Purchaser on demand the
balance of any amount of such indemnity to which the Purchaser is
entitled hereunder.
Notwithstanding anything contained in this Agreement to the
contrary, the right to indemnification described in this paragraph shall
expire four years after the date hereof, except in the case of the proven
fraud by the Seller, Tirella or Xxxxxx as determined by a court of
competent jurisdiction in connection with any such claim for
indemnification, in which event such right to indemnification shall
expire four years after the discovery of such fraud.
10. INDEMNIFICATION BY THE PURCHASER. The Purchaser agrees to
indemnify and hold harmless the Seller, Tirella, or Xxxxxx, jointly and
severally, against and in respect to all damages incurred by the Seller,
Tirella, or Xxxxxx, or any of them, after the date hereof and arising out
of the transactions hereunder for which the Purchaser has been determined
liable based upon the judgment of any court of competent jurisdiction or
pursuant to a bona fide compromise or settlement of claims, demands or
actions to which the Purchaser is a party, in respect to the damages to
which the foregoing indemnity relates. Notwithstanding anything
contained in this Agreement to the contrary, the right to indemnification
described in this paragraph shall expire four years after the date
hereof, except in the case of the proven fraud by the Purchaser hereunder
as determined by a court of competent jurisdiction in connection with any
such claim for indemnification, in which event such right to
indemnification shall expire four years after the discovery of such
fraud.
11. CONTRACTUAL CONSENTS NEEDED. The parties to this Agreement
have delivered to each other all consents required for the consummation
of the transactions contemplated by this Agreement from any party to any
contract, agreement, instrument, lease, license, arrangement, or
understanding to which any of them is a party, or to which any of their
respective businesses, properties, or assets are subject.
12. DELIVERIES BY THE SELLER, TIRELLA, AND XXXXXX.
(a) The xxxx of sale covering the Acquired Assets, free and
clear of all liens, encumbrances, charges, escrows, equities, and other
restrictions, except as may be otherwise permitted hereunder.
(b) The Tirella Employment Agreement and the Xxxxxx Employment
Agreement.
(c) The Certificate of Amendment to the Certificate of
Incorporation of the Seller as described herein, along with the required
filing fee payable to the Secretary of State of Delaware.
(d) The certified copies of the various corporate resolutions
of the Seller as described in Paragraph 5(f) hereof.
(e) Any other document which may be necessary to carry out the
intent of this Agreement.
13. DELIVERIES BY THE PURCHASER.
(a) 275,000 shares of the Stock issued in favor of Tirella.
(b) 275,000 shares of the Stock issued in favor of Xxxxxx.
(c) The Tirella Employment Agreement.
(d) The Xxxxxx Employment Agreement.
(e) The Registration Rights Agreement for Tirella.
(f) The Registration Rights Agreement for Xxxxxx.
(g) The certified copy of a resolution of the Board of
Directors of the Purchaser as described in Paragraph 6 hereof.
(h) Any other document which may be necessary to carry out the
intent of this Agreement.
14. NOTICES. All notices, requests, demands, and other
communications hereunder shall be in writing and delivered personally or
sent by registered or certified United States mail, return receipt
requested with postage prepaid, or by telecopy or e-mail, if to the
Seller, Tirella, or Xxxxxx, addressed to Xx. Xxxxxx Xxxxxx at 0000 Xxxxx,
Xxxxx 0000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, telecopier (000) 000-0000,
and e-mail xxxxxxx@xxxxxxxxxxxx.xxx; and if to the Purchaser, addressed
to Mr. Xxxx Xxxxx at 0 Xxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000,
telecopier (000) 000-0000, and e-mail xxxxxx@xxxxx.xxx. Any party hereto
may change its address upon 10 days' written notice to any other party
hereto.
15. LEGAL CONSTRUCTION. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provisions hereof, and this
Agreement shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein.
16. ATTORNEY'S FEES. In the event that it should become necessary
for any party entitled hereunder to bring suit against any other party to
this Agreement for enforcement of the covenants herein contained, the
parties hereby covenant and agree that the party who is found to be in
violation of said covenants shall also be liable for all reasonable
counsel's fees and costs of court incurred by the other parties hereto.
17. CUMULATIVE RIGHTS. The rights and remedies of any party under
this Agreement and the instruments executed or to be executed in
connection herewith, or any of them, shall be cumulative and the exercise
or partial exercise of any such right or remedy shall not preclude the
exercise of any other right or remedy.
18. INVALIDITY. In the event any one or more of the provisions
contained in this Agreement or in any instrument referred to herein or
executed in connection herewith shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect the other provisions of
this Agreement or any such other instrument.
19. HEADINGS. The headings used in this Agreement are for
convenience and reference only and in no way define, limit, simplify or
describe the scope or intent of this Agreement, and in no way effect or
constitute a part of this Agreement.
20. PUBLIC ANNOUNCEMENTS. Except as otherwise required by law, no
public announcements shall be made by any party regarding the
transactions contemplated hereby without the prior approval of the other
parties, which approval shall not be unreasonably withheld.
21. CONTROLLING AGREEMENT. In the event of any conflict between
the terms of this Agreement or the any other agreement described herein,
the terms of this Agreement shall control.
22. NO THIRD-PARTY BENEFICIARY. Any agreement to pay an amount and
any assumption of liability herein contained, express or implied, shall
be only for the benefit of the undersigned parties and their respective
successors and permitted assigns (as herein expressly permitted), and
such agreements and assumptions shall not inure to the benefit of the
obligees or any other party, whomsoever, it being the intention of the
parties hereto that no one shall be or be deemed to be a third-party
beneficiary of this Agreement.
23. BENEFIT. All the terms and provisions of this Agreement shall
be binding upon and inure to the benefit of and be enforceable by the
parties hereto, and their successors and permitted assigns.
24. LAW GOVERNING. This Agreement shall be construed and governed
by the laws of the State of California, and all obligations hereunder
shall be deemed performable in Orange County, California.
25. PERFECTION OF TITLE. The parties hereto shall do all other
acts and things that may be reasonably necessary or proper, fully or more
fully, to evidence, complete or perfect this Agreement, and to carry out
the intent of this Agreement.
26. CUMULATIVE RIGHTS. The rights and remedies of any party under
this Agreement and the instruments executed or to be executed in
connection herewith, or any of them, shall be cumulative and the exercise
or partial exercise of any such right or remedy shall not preclude the
exercise of any other right or remedy.
27. WAIVER. No course of dealing on the part of any party hereto
or its agents, nor any failure or delay by any such party with respect to
exercising any right, power or privilege of such party under this
Agreement or any instrument referred to herein shall operate as a waiver
thereof, and any single or partial exercise of any such right, power or
privilege shall not preclude any later exercise thereof or any exercise
of any other right, power or privilege hereunder or thereunder.
28. CONSTRUCTION. Words of any gender used in this Agreement shall
be held and construed to include any other gender, and words in the
singular number shall be held to include the plural, and vice versa,
unless the context requires otherwise. In addition, the pronouns used in
this Agreement shall be understood and construed to apply whether the
party referred to is an individual, partnership, joint venture,
corporation or an individual or individuals doing business under a firm
or trade name, and the masculine, feminine and neuter pronouns shall each
include the other and may be used interchangeably with the same meaning.
29. MULTIPLE COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
30. ENTIRE AGREEMENT. This instrument contains the entire
understanding of the parties with respect to the subject matter hereof,
and may not be changed orally, but only by an instrument in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension, or discharge is sought. This Agreement
supersedes any written or oral agreement between the parties. No party
hereto is relying on any oral statements or representations of any other
party, or any officer, director, agent, stockholder or employee of
another party.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first written above.
UNETCOMMERCE, INC.
By/s/Xxxxx Tirella
---------------------------
Xxxxx Tirella, President
/s/Xxxxx Tirella
-----------------------------
XXXXX TIRELLA
/s/Xxxxxx Xxxxxx
-----------------------------
XXXXXX XXXXXX
UNIVERSAL BROADBAND
COMMUNICATIONS, INC.
By: /s/Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, CEO
Attachments:
-----------
Exhibit A - The Acquired Assets
Exhibit B - The Tirella Employment Agreement
Exhibit C - The Xxxxxx Employment Agreement
Exhibit D - The Registration Rights Agreement for Tirella
Exhibit E - The Registration Rights Agreement for Xxxxxx
Exhibit F - The Covenant not to Compete Agreement
The Acquired Assets
1. Customer base. This includes all billing information for current
revenue generating accounts and the servers and software used to
xxxx the customer base.
2. Web hosting related assets: This includes all servers, software and
network equipment.
3. Distributor network. This includes all distributor agreements,
compensation plans, marketing material, policies, procedures,
training materials, training systems, all down line information and
commissioning software.
4. Any and all contracts necessary to provide support or services to
the customer base and/or distributor base as well as conducting
on-going business.
5. All intellectual assets: All patents, copyrights, marketing
concepts, etc.
6. All bank accounts and cash in the accounts at the end of the
business day on the date of the Asset Purchase Agreement.
7. All unsettled credit card xxxxxxxx.
8. All accounts receivables or unbilled revenues.
9. All fixed assets including but not limited to computers, desks,
chairs, office equipment, etc.
10. Any other asset paid for by the company.
UNIVERSAL BROADBAND COMMUNICATIONS, INC.
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made this 14th day of January 2003, between
UNIVERSAL BROADBAND COMMUNICATIONS, INC., a Nevada corporation (the
"Company"), and XXXXX TIRELLA (the "Employee").
1. CONDITIONS OF EMPLOYMENT. As of the date hereof, the Company
hereby employs the Employee as a Director of Internet Marketing, and the
Employee accepts such employment, subject to the terms and conditions set
forth herein. The Employee shall perform all duties and services
regularly incident to the position of a Director of Internet Marketing of
the Company, and the Employee shall perform such other duties and
services as may be prescribed by the CEO of the Company from time to
time; provided, however, that the duties and services the Employee will
be asked to provide will be at minimum of the nature of his position as a
Director of Internet Marketing of the Company. During his employment
hereunder, the Employee shall devote his best efforts and attention, on a
full-time basis, to the performance of the duties required of his as an
employee of the Company. The Employee further agrees to serve without
additional compensation in such executive positions with any subsidiaries
of the Company as the CEO of the Company may designate and to fulfill the
responsibilities incident to such positions.
2. TERM OF EMPLOYMENT. The initial term of employment shall
commence on the date hereof, and shall continue for a period of one year;
after the initial term the Agreement shall automatically renew for one
year term until termination by either party as provided in Paragraph 5 or
6 hereof.
3. DEVOTION OF EFFORT. The Employee agrees to devote sufficient
time, attention, and skill to the performance of his duties as an
employee of the Company as set out and authorized by the CEO. During the
term of this Agreement, he shall not render services on his own or on
behalf of any party other than the Company unless otherwise authorized by
the CEO.
4. COMPENSATION AND BENEFITS.
(a) SALARY. As compensation for the services to be rendered
hereunder, the Company will pay to the Employee an annual salary in an
amount equal to $90,000.
(b) COMMISSION. A commission equal to two percent (2%) of all
billed revenues for services of the uNetCommerce assets purchased,
payable on the last payroll of the month following the receipt of any
such revenues.
(c) EMPLOYEE BENEFIT PLANS. The Employee shall be entitled to
participate in all employee benefit plans on the same terms and
conditions as all other employees similarly situated.
5. TERMINATION FOR DISABILITY. If the Employee, during the term
of this Agreement, shall fail to perform his duties hereunder as a result
of disability, as defined in Paragraph 7 below, the Company shall have
the right to terminate this Agreement and the employment hereunder as of
a date to be specified in a written notice of termination sent to the
Employee.
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6. TERMINATION FOR CAUSE. If the Employee shall (a) be convicted
of a felony, or (b) engage in conduct as defined under cause, all as set
out in Paragraph 7 below, the Company shall have the right to terminate
this contract and employment hereunder in the manner as set out in
Paragraph 7 and upon notice given in the manner specified herein.
7. DEFINITIONS. For purposes of this Agreement, the following
definitions shall apply:
(a) "Termination Date" shall mean the date on which the
Employee ceases to be an employee of the Company irrespective of the
cause or manner in which employment ends.
(b) "Disabled" or "Disability" shall mean a determination by
independent competent medical authority that the Employee is unable to
perform his duties and that in all reasonable medical likelihood such
inability will continue for a period in excess of 90 days. Unless
otherwise agreed by the Employee and the CEO, the independent medical
authority shall be selected by the Employee and the Company each
selecting a board certified licensed physician and the two physicians
selected shall designate an independent medical authority, whose
determination of Disability shall be binding upon the Company and the
Employee.
(c) "Cause" shall mean. (i) the Employee's conviction of a
felony or any other criminal act involving moral turpitude; (ii)
deliberate and intentional continuing refusal by the Employee to
substantially perform his duties and obligations under this Agreement
(except by reason of incapacity due to illness or accident) if the
Employee (1) shall have either failed to remedy such alleged breach
within 15 days from the date written notice is given by the CEO demanding
that the Employee remedy such alleged breach, or (2) shall have failed to
take reasonable steps in good faith to that end during such 15 day
period.
8. DEATH. If the Employee shall die during the term of this
Agreements his legal representatives shall be entitled to receive his
compensation as provided in Paragraph 4 hereof.
9. INABILITY TO PERFORM DUTIES. If the Employee becomes disabled,
his salary payments may be reduced or terminated by the Company at its
absolute discretion. The Employee's full salary shall be reinstated upon
his return to full-time employment and the full discharge of his duties
hereunder.
10. CONFIDENTIAL INFORMATION AND TRADE SECRETS.
(a) The Employee recognizes that the Employee's position with
the Company requires considerable responsibility and trust, and, in
reliance on the Employee's loyalty, the Company may entrust the Employee
with highly sensitive confidential, restricted and proprietary
information involving Trade Secrets and Confidential Information of the
Company and its affiliates.
(b) For purposes of this Agreement, a "Trade Secret" is any
scientific or technical information, design, process, procedure, formula
or improvement of the Company or any of its affiliates that is valuable
and not generally known to competitors of the Company and its affiliates.
"Confidential Information" is any data or information, other than Trade
Secrets, of the Company or any of its affiliates that is important,
competitively sensitive, and not generally known by the public,
including, but not limited to, the strategic and business plans, business
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prospects, training manuals, product development plans, bidding and
pricing procedures, market strategies, internal performance statistics,
financial data, confidential personnel information concerning employees,
supplier data, operational or administrative plans, policy manuals, and
terms and conditions of contracts and agreements and such similar
information relating to subsidiaries and affiliates of the Company. The
terms "Trade Secret" and "Confidential Information" shall not apply to
information which is (i) already in the Employee's possession (unless
such information was obtained by the Employee from the Company or its
affiliates or was obtained by the Employee in the course of the
Employee's employment by the Company or its affiliates), (ii) received by
the Employee from a third party with no restriction on disclosure, (iii)
becomes generally available to the public through no wrongful act on the
part of the Employee, or (iv) required to be disclosed by any applicable
law.
(c) Except as required to perform the Employee's duties as an
employee, the Employee will not use or disclose any Trade Secrets or
Confidential Information during his employment, at any time after
termination of his employment and prior to such time as they cease to be
Trade Secrets or Confidential Information through no act of the Employee
in violation of this Paragraph 11.
(d) Upon the request of the Company and, in any event, upon
the termination of employment hereunder, the Employee will surrender to
the Company all memoranda, notes, records, drawings, manuals, distributor
lists, or other documents (including all copies thereof) pertaining to
the Company's business, the Employee's employment or the business of the
Company or its affiliates. The Employee will also leave with the Company
all materials involving any Trade Secrets or Confidential Information.
All such information and materials, whether or not made or developed by
the Employee, shall be the sole and exclusive property of the Company or
its affiliates, and the Employee hereby assigns to the Company all of the
Employee's right, title and interest in and to any and all of such
information and materials.
(e) If a judicial determination is made that any of the
provisions of this Paragraph 12 constitutes an unreasonable or otherwise
unenforceable restriction against the Employee, the provisions of this
Paragraph 12 shall be rendered void only to the extent that such judicial
determination finds such provisions to be unreasonable or otherwise
unenforceable. In this regard, the parties hereto hereby agree that any
judicial authority construing this Agreement shall be empowered to sever
any portion of the territory or prohibited business activity from the
coverage of this Paragraph 12 and to apply the provisions of this
Paragraph 12 to the remaining portion of the territory or the remaining
business activities not so severed by such judicial authority. Moreover,
notwithstanding the fact that any provisions of this Paragraph 12 are
determined not to be specifically enforceable, the Company shall
nevertheless be entitled to recover monetary damages as a result of the
breach of such provision by the Employee. The time period during which
the prohibitions set forth in this Paragraph 12 shall apply shall be
tolled and suspended as to the Employee for a period equal to the
aggregate quantity of time during which the Employee violates such
prohibitions in any respect.
11. SPECIFIC ENFORCEMENT. The Employee specifically acknowledges
and agrees that the restrictions set forth in Paragraphs 11 and 12 hereof
are reasonable and necessary to protect the legitimate interest of the
Company and its affiliates and that the Company would not have employed
the Employee in the absence of such restrictions. The Employee further
acknowledges and agrees that any violation of the provisions of
Paragraphs 11 or 12 hereof will result in
3
irreparable injury to the Company or its affiliates, that the remedy at
law for any violation or threatened violation of such paragraphs will be
inadequate and that in the event of any such breach, the Company or its
affiliates, in addition to any other remedies or damages available at law
or in equity, shall be entitled to temporary injunctive relief before
trial from any court of competent jurisdiction as a matter of course and
to permanent injunctive relief without the necessity of proving actual
damages.
12. ATTORNEY'S FEES. In the event that it should become necessary
for any party entitled hereunder to bring suit against any other party to
this Agreement for enforcement of the covenants herein contained, the
parties hereby covenant and agree that the party who is found to be in
violation of said covenants shall also be liable for all reasonable
attorney's fees and costs of court incurred by the other parties hereto.
13. BENEFIT. All the terms and provisions of this Agreement shall
be binding upon and inure to the benefit of and be enforceable by the
parties hereto, and their respective heirs, executors, administrators,
personal representatives, successors and permitted assigns.
14. NOTICE. All notices, requests and other communications
hereunder shall be in writing and shall be deemed to have been duly given
at the time of receipt if delivered by hand or communicated by electronic
transmission, or, if mailed, three days after deposit in the United
States mail, registered or certified, return receipt requested, with
postage prepaid and addressed to the party to receive same, if to the
Company, addressed to Mr. Xxxx Xxxxx at 0 Xxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx 00000, telephone (000) 000-0000, fax (000) 000-0000, and
e-mail xxxxxx@xxxxx.xxx; and if to the Employee, addressed to Mr. Xxxxx
Tirella at 00000 Xxxxxxxxx Xxxxx #00X, Xxxxxx Xxxxxx, Xxxxxxxxxx 00000,
and telephone (000) 000-0000; provided, however, that if either party
shall have designated a different address by notice to the other given as
provided above, then any subsequent notice shall be addressed to such
party at the last address so designated.
15. CONSTRUCTION. Words of any gender used in this Agreement shall
be held and construed to include any other gender, and words in the
singular number shall be held to include the plural, and vice versa,
unless the context requires otherwise. In addition, the pronouns used in
this Agreement shall be understood and construed to apply whether the
party referred to is an individual, partnership, joint venture,
corporation or an individual or individuals doing business under a firm
or trade name, and the masculine, feminine and neuter pronouns shall each
include the other and may be used interchangeably with the same meaning.
16. WAIVER. No course of dealing on the part of any party hereto
or its agents, or any failure or delay by any such party with respect to
exercising any right, power or privilege of such party under this
Agreement or any instrument referred to herein shall operate as a waiver
thereof, and any single or partial exercise of any such right, power or
privilege shall not preclude any later exercise thereof or any exercise
of any other right, power or privilege hereunder or thereunder.
17. CUMULATIVE RIGHTS. The rights and remedies of any party under
this Agreement and the instruments executed or to be executed in
connection herewith, or any of them, shall be cumulative and the exercise
or partial exercise of any such right or remedy shall not preclude the
exercise of any other right or remedy.
4
18. INVALIDITY. In the event any one or more of the provisions
contained in this Agreement or in any instrument referred to herein or
executed in connection herewith shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect the other provisions of
this Agreement or any such other instrument. If any covenant in this
Agreement, or any part thereof, is held to be unenforceable because of
its duration or its geographic scope, the parties agree that the court
making such determination shall have the power to reduce the duration
and/or area of such covenant to the longest duration and to the greatest
geographical scope which is permitted, and, in said reduced form, such
covenant shall then be enforced. The Employee acknowledges that the
provisions of this Agreement are reasonable and necessary for the
protection of the Company, that the consideration therefor is reasonable
and sufficient, and that the provisions of this Agreement are an
inducement without which the Company would not have entered into this
Agreement.
19. HEADINGS. The headings used in this Agreement are for
convenience and reference only and in no way define, limit, simplify or
describe the scope or intent of this Agreement, and in no way effect or
constitute a part of this Agreement.
20. MULTIPLE COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
21. LAW GOVERNING. This Agreement shall be construed and governed
by the laws of the State of California, and all obligations hereunder
shall be deemed performable in Orange County, California.
22. ENTIRE AGREEMENT. This instrument contains the entire
understanding of the parties with respect to the subject matter hereof,
and may not be changed orally, but only by an instrument in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension, or discharge is sought.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the date first written above.
UNIVERSAL BROADBAND
COMMUNICATIONS, INC.
By: /s/ Xxxx Xxxxx
-----------------------------
Xxxx Xxxxx, CEO
/s/ Xxxxx Tirella
-----------------------------
XXXXX TIRELLA, Employee
5
UNIVERSAL BROADBAND COMMUNICATIONS, INC.
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made this 14th day of January 2003, between
UNIVERSAL BROADBAND COMMUNICATIONS, INC., a Nevada corporation (the
"Company"), and XXXXXX XXXXXX (the "Employee").
1. CONDITIONS OF EMPLOYMENT. As of the date hereof, the Company
hereby employs the Employee as a Sales Director, and the Employee accepts
such employment, subject to the terms and conditions set forth herein.
The Employee shall perform all duties and services regularly incident to
the position of a Sales Director of the Company, and the Employee shall
perform such other duties and services as may be prescribed by the CEO of
the Company from time to time; provided, however, that the duties and
services the Employee will be asked to provide will be at minimum of the
nature of his position as a Sales Director of the Company. During his
employment hereunder, the Employee shall devote his best efforts and
attention, on a full-time basis, to the performance of the duties
required of his as an employee of the Company. The Employee further
agrees to serve without additional compensation in such executive
positions with any subsidiaries of the Company as the CEO of the Company
may designate and to fulfill the responsibilities incident to such
positions.
2. TERM OF EMPLOYMENT. The initial term of employment shall
commence on the date hereof, and shall continue for a period of one year;
after the initial term the Agreement shall automatically renew for one
year term until termination by either party as provided in Paragraph 5 or
6 hereof.
3. DEVOTION OF EFFORT. The Employee agrees to devote sufficient
time, attention, and skill to the performance of his duties as an
employee of the Company as set out and authorized by the CEO. During the
term of this Agreement, he shall not render services on his own or on
behalf of any party other than the Company unless otherwise authorized by
the CEO.
4. COMPENSATION AND BENEFITS.
(a) SALARY. As compensation for the services to be rendered
hereunder, the Company will pay to the Employee an annual salary in an
amount equal to $90,000.
(b) COMMISSION. A commission equal to one percent (1%) of all
billed revenues for services of the uNetCommerce assets purchased,
payable on the last payroll of the month following the receipt of any
such revenues.
(c) EMPLOYEE BENEFIT PLANS. The Employee shall be entitled to
participate in all employee benefit plans on the same terms and
conditions as all other employees similarly situated.
5. TERMINATION FOR DISABILITY. If the Employee, during the term
of this Agreement, shall fail to perform his duties hereunder as a result
of disability, as defined in Paragraph 7 below, the Company shall have
the right to terminate this Agreement and the employment hereunder as of
a date to be specified in a written notice of termination sent to the
Employee.
1
6. TERMINATION FOR CAUSE. If the Employee shall (a) be convicted
of a felony, or (b) engage in conduct as defined under cause, all as set
out in Paragraph 7 below, the Company shall have the right to terminate
this contract and employment hereunder in the manner as set out in
Paragraph 7 and upon notice given in the manner specified herein.
7. DEFINITIONS. For purposes of this Agreement, the following
definitions shall apply:
(a) "Termination Date" shall mean the date on which the
Employee ceases to be an employee of the Company irrespective of the
cause or manner in which employment ends.
(b) "Disabled" or "Disability" shall mean a determination by
independent competent medical authority that the Employee is unable to
perform his duties and that in all reasonable medical likelihood such
inability will continue for a period in excess of 90 days. Unless
otherwise agreed by the Employee and the CEO, the independent medical
authority shall be selected by the Employee and the Company each
selecting a board certified licensed physician and the two physicians
selected shall designate an independent medical authority, whose
determination of Disability shall be binding upon the Company and the
Employee.
(c) "Cause" shall mean. (i) the Employee's conviction of a
felony or any other criminal act involving moral turpitude; (ii)
deliberate and intentional continuing refusal by the Employee to
substantially perform his duties and obligations under this Agreement
(except by reason of incapacity due to illness or accident) if the
Employee (1) shall have either failed to remedy such alleged breach
within 15 days from the date written notice is given by the CEO demanding
that the Employee remedy such alleged breach, or (2) shall have failed to
take reasonable steps in good faith to that end during such 15 day
period.
8. DEATH. If the Employee shall die during the term of this
Agreements his legal representatives shall be entitled to receive his
compensation as provided in Paragraph 4 hereof.
9. INABILITY TO PERFORM DUTIES. If the Employee becomes disabled,
his salary payments may be reduced or terminated by the Company at its
absolute discretion. The Employee's full salary shall be reinstated upon
his return to full-time employment and the full discharge of his duties
hereunder.
10. CONFIDENTIAL INFORMATION AND TRADE SECRETS.
(a) The Employee recognizes that the Employee's position with
the Company requires considerable responsibility and trust, and, in
reliance on the Employee's loyalty, the Company may entrust the Employee
with highly sensitive confidential, restricted and proprietary
information involving Trade Secrets and Confidential Information of the
Company and its affiliates.
(b) For purposes of this Agreement, a "Trade Secret" is any
scientific or technical information, design, process, procedure, formula
or improvement of the Company or any of its affiliates that is valuable
and not generally known to competitors of the Company and its affiliates.
"Confidential Information" is any data or information, other than Trade
Secrets, of the Company or any of its affiliates that is important,
competitively sensitive, and not generally known by the public,
including, but not limited to, the strategic and business plans, business
2
prospects, training manuals, product development plans, bidding and
pricing procedures, market strategies, internal performance statistics,
financial data, confidential personnel information concerning employees,
supplier data, operational or administrative plans, policy manuals, and
terms and conditions of contracts and agreements and such similar
information relating to subsidiaries and affiliates of the Company. The
terms "Trade Secret" and "Confidential Information" shall not apply to
information which is (i) already in the Employee's possession (unless
such information was obtained by the Employee from the Company or its
affiliates or was obtained by the Employee in the course of the
Employee's employment by the Company or its affiliates), (ii) received by
the Employee from a third party with no restriction on disclosure, (iii)
becomes generally available to the public through no wrongful act on the
part of the Employee, or (iv) required to be disclosed by any applicable
law.
(c) Except as required to perform the Employee's duties as an
employee, the Employee will not use or disclose any Trade Secrets or
Confidential Information during his employment, at any time after
termination of his employment and prior to such time as they cease to be
Trade Secrets or Confidential Information through no act of the Employee
in violation of this Paragraph 11.
(d) Upon the request of the Company and, in any event, upon
the termination of employment hereunder, the Employee will surrender to
the Company all memoranda, notes, records, drawings, manuals, distributor
lists, or other documents (including all copies thereof) pertaining to
the Company's business, the Employee's employment or the business of the
Company or its affiliates. The Employee will also leave with the Company
all materials involving any Trade Secrets or Confidential Information.
All such information and materials, whether or not made or developed by
the Employee, shall be the sole and exclusive property of the Company or
its affiliates, and the Employee hereby assigns to the Company all of the
Employee's right, title and interest in and to any and all of such
information and materials.
(e) If a judicial determination is made that any of the
provisions of this Paragraph 12 constitutes an unreasonable or otherwise
unenforceable restriction against the Employee, the provisions of this
Paragraph 12 shall be rendered void only to the extent that such judicial
determination finds such provisions to be unreasonable or otherwise
unenforceable. In this regard, the parties hereto hereby agree that any
judicial authority construing this Agreement shall be empowered to sever
any portion of the territory or prohibited business activity from the
coverage of this Paragraph 12 and to apply the provisions of this
Paragraph 12 to the remaining portion of the territory or the remaining
business activities not so severed by such judicial authority. Moreover,
notwithstanding the fact that any provisions of this Paragraph 12 are
determined not to be specifically enforceable, the Company shall
nevertheless be entitled to recover monetary damages as a result of the
breach of such provision by the Employee. The time period during which
the prohibitions set forth in this Paragraph 12 shall apply shall be
tolled and suspended as to the Employee for a period equal to the
aggregate quantity of time during which the Employee violates such
prohibitions in any respect.
11. SPECIFIC ENFORCEMENT. The Employee specifically acknowledges
and agrees that the restrictions set forth in Paragraphs 11 and 12 hereof
are reasonable and necessary to protect the legitimate interest of the
Company and its affiliates and that the Company would not have employed
the Employee in the absence of such restrictions. The Employee further
acknowledges and agrees that any violation of the provisions of
Paragraphs 11 or 12 hereof will result in
3
irreparable injury to the Company or its affiliates, that the remedy at
law for any violation or threatened violation of such paragraphs will be
inadequate and that in the event of any such breach, the Company or its
affiliates, in addition to any other remedies or damages available at law
or in equity, shall be entitled to temporary injunctive relief before
trial from any court of competent jurisdiction as a matter of course and
to permanent injunctive relief without the necessity of proving actual
damages.
12. ATTORNEY'S FEES. In the event that it should become necessary
for any party entitled hereunder to bring suit against any other party to
this Agreement for enforcement of the covenants herein contained, the
parties hereby covenant and agree that the party who is found to be in
violation of said covenants shall also be liable for all reasonable
attorney's fees and costs of court incurred by the other parties hereto.
13. BENEFIT. All the terms and provisions of this Agreement shall
be binding upon and inure to the benefit of and be enforceable by the
parties hereto, and their respective heirs, executors, administrators,
personal representatives, successors and permitted assigns.
14. NOTICE. All notices, requests and other communications
hereunder shall be in writing and shall be deemed to have been duly given
at the time of receipt if delivered by hand or communicated by electronic
transmission, or, if mailed, three days after deposit in the United
States mail, registered or certified, return receipt requested, with
postage prepaid and addressed to the party to receive same, if to the
Company, addressed to Mr. Xxxx Xxxxx at 0 Xxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx 00000, telephone (000) 000-0000, fax (000) 000-0000, and
e-mail xxxxxx@xxxxx.xxx; and if to the Employee, addressed to Xx. Xxxxxx
Xxxxxx at 00000 Xxxxxxx, Xxxxxxx, Xxxxx, Xxxxxxxxxx 00000, telephone
(000) 000-0000, fax (000) 000-0000, and e-mail xxxxxxx@xxxxxxxxxxxx.xxx;
provided, however, that if either party shall have designated a different
address by notice to the other given as provided above, then any
subsequent notice shall be addressed to such party at the last address so
designated.
15. CONSTRUCTION. Words of any gender used in this Agreement shall
be held and construed to include any other gender, and words in the
singular number shall be held to include the plural, and vice versa,
unless the context requires otherwise. In addition, the pronouns used in
this Agreement shall be understood and construed to apply whether the
party referred to is an individual, partnership, joint venture,
corporation or an individual or individuals doing business under a firm
or trade name, and the masculine, feminine and neuter pronouns shall each
include the other and may be used interchangeably with the same meaning.
16. WAIVER. No course of dealing on the part of any party hereto
or its agents, or any failure or delay by any such party with respect to
exercising any right, power or privilege of such party under this
Agreement or any instrument referred to herein shall operate as a waiver
thereof, and any single or partial exercise of any such right, power or
privilege shall not preclude any later exercise thereof or any exercise
of any other right, power or privilege hereunder or thereunder.
17. CUMULATIVE RIGHTS. The rights and remedies of any party under
this Agreement and the instruments executed or to be executed in
connection herewith, or any of them, shall be cumulative and the exercise
or partial exercise of any such right or remedy shall not preclude the
exercise of any other right or remedy.
4
18. INVALIDITY. In the event any one or more of the provisions
contained in this Agreement or in any instrument referred to herein or
executed in connection herewith shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect the other provisions of
this Agreement or any such other instrument. If any covenant in this
Agreement, or any part thereof, is held to be unenforceable because of
its duration or its geographic scope, the parties agree that the court
making such determination shall have the power to reduce the duration
and/or area of such covenant to the longest duration and to the greatest
geographical scope which is permitted, and, in said reduced form, such
covenant shall then be enforced. The Employee acknowledges that the
provisions of this Agreement are reasonable and necessary for the
protection of the Company, that the consideration therefor is reasonable
and sufficient, and that the provisions of this Agreement are an
inducement without which the Company would not have entered into this
Agreement.
19. HEADINGS. The headings used in this Agreement are for
convenience and reference only and in no way define, limit, simplify or
describe the scope or intent of this Agreement, and in no way effect or
constitute a part of this Agreement.
20. MULTIPLE COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
21. LAW GOVERNING. This Agreement shall be construed and governed
by the laws of the State of California, and all obligations hereunder
shall be deemed performable in Orange County, California.
22. ENTIRE AGREEMENT. This instrument contains the entire
understanding of the parties with respect to the subject matter hereof,
and may not be changed orally, but only by an instrument in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension, or discharge is sought.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the date first written above.
UNIVERSAL BROADBAND
COMMUNICATIONS, INC.
By: /s/ Xxxx Xxxxx
-----------------------------
Xxxx Xxxxx, CEO
/s/ Xxxxxx Xxxxxx
-----------------------------
XXXXXX XXXXXX, Employee
5
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is entered into as of January 13, 2003, by and
between UNIVERSAL BROADBAND COMMUNICATIONS, INC., a Nevada corporation
(the "Company"), and XXXXX TIRELLA (the "Holder").
WHEREAS, on even date herewith the Company executed and delivered to
the Holder 275,000 shares of the Company's common stock, par value $0.001
per share (the "Common Stock");
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
1. REGISTRATION RIGHTS AVAILABLE. Pursuant to the terms and
conditions contained herein, the Company agrees to provide the Holder or
any permitted assignee of the Holder (collectively, the "Holder") with
the right to "piggyback" (the "Registration Rights") on a firm commitment
underwritten offering with respect to the Common Stock and any other
securities issued or issuable at any time or from time to time in respect
of the Common Stock as a result of a merger, consolidation,
reorganization, stock split, stock dividend, recapitalization or other
similar event involving the Company (collectively, the "Registrable
Securities").
2. REGISTRATION RIGHTS. With respect to the Registration Rights,
the parties agree as follows:
(a) Subject to Paragraph 2(b), the Company will (i) promptly
give to the Holder written notice of any registration relating to an
Underwritten Public Offering, and (ii) include in such registration (and
related qualification under blue sky laws or other compliance) such of
the Holder's Registrable Securities as are specified in the Holder's
written request or requests, mailed in accordance with the terms of this
Agreement within 30 days after the date of such written notice from the
Company.
(b) The right of the Holder to registration pursuant to the
Registration Rights shall be conditioned upon the Holder's participation
in such underwriting, and the inclusion of the Registrable Securities in
the underwriting shall be limited to the extent provided herein. The
Holder shall (together with the Company) enter into an underwriting
agreement in customary form with the managing underwriter selected for
the Underwritten Public Offering by the Company. Notwithstanding any
other provision of this Agreement, if the managing underwriter determines
that marketing factors require a limitation of the number of the
Registrable Securities to be underwritten, the managing underwriter may
limit some or all of the Registrable Securities that may be included in
the registration and the Underwritten Public Offering as follows: the
number of the Registrable Securities that may be included in the
registration and the Underwritten Public Offering by the Holder shall be
determined by multiplying the number of the shares of the Registrable
Securities of all selling shareholders of the Company which the managing
underwriter is willing to include in such registration and the
Underwritten Public Offering times a fraction, the numerator of which is
the number of the Registrable Securities requested to be included in such
registration and the Underwritten Public Offering by the Holder, and the
denominator of which is the total number of the Registrable Securities
which all selling shareholders of the Company have requested to be
included in such registration and the Underwritten Public Offering. To
facilitate the allocation of shares in accordance with the above
provisions, the Company may round the number of shares allocable to any
such person to the nearest 100 shares. If the Holder disapproves of the
terms of any such underwriting, it may elect to withdraw therefrom by
written notice to the Company and the managing underwriter, delivered not
less than seven days before the effective date of the Underwritten Public
Offering. Any of the Registrable Securities excluded or withdrawn from
the Underwritten Public Offering shall be withdrawn from such
registration, and shall not be transferred in a public distribution prior
to 60 days after the effective date of the Registration Statement
relating thereto, or such other shorter period of time as the
underwriters may require.
3. REGISTRATION PROCEDURE. With respect to the Registration
Rights, the following provisions shall apply:
(a) The Holder shall be obligated to furnish to the Company
and the underwriters such information regarding the Registrable
Securities and the proposed manner of distribution of the Registrable
Securities as the Company and the underwriters may request in writing and
as shall be required in connection with any registration, qualification
or compliance referred to herein and shall otherwise cooperate with the
Company and the underwriters in connection with such registration,
qualification or compliance.
(b) With a view to making available the benefits of certain
rules and regulations of the Securities and Exchange Commission (the
"SEC") which may at any time permit the sale of any Restricted Securities
as defined in Rule 144 ("Rule 144") promulgated under the Securities Act
of 1933, as amended (the "Securities Act") to the public without
registration, the Company agrees to use its best lawful efforts to:
(i) Make and keep public information available, as those
terms are understood and defined in Rule 144 at all times during which
the Company is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act");
(ii) File with the SEC in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act (at all times during which the Company is subject to such
reporting requirements); and
(iii)So long as the Holder owns any Restricted Securities,
to furnish to the Holder upon request a written statement from the
Company as to its compliance with the reporting requirements of Rule 144
and with regard to the Securities Act and the Exchange Act (at all times
during which the Company is subject to such reporting requirements), a
copy of the most recent annual or quarterly report of the Company, and
such other reports and documents of the Company and other information in
the possession of or reasonably obtainable by the Company as the Holder
may reasonably request in availing itself of any rule or regulation of
the SEC allowing the Holder to sell any Restricted Securities without
registration.
(c) The Company agrees that it will furnish to the Holder such
number of prospectuses meeting the requirements of Section 10(a)(3) of
the Securities Act, offering circulars or other documents incident to any
registration, qualification or compliance referred to herein as provided
or, if not otherwise provided, as the Holder from time to time may
reasonably request.
(d) All expenses (except for any underwriting and selling
discounts and commissions and legal fees for the Holder's attorneys) of
any registrations permitted pursuant to this Agreement and of all other
offerings by the Company (including, but not limited to, the expenses of
any qualifications under the blue sky or other state securities laws and
compliance with governmental requirements of preparing and filing any
post-effective amendments required for the lawful distribution of the
Registrable Securities to the public in connection with such
registration, of supplying prospectuses, offering circulars or other
documents) will be paid by the Company.
(e) In connection with the preparation and filing of any
Registration Statement under the Securities Act pursuant to this
Agreement, the Company will give the Holder and the Holder's attorneys
and accountants, the opportunity to participate in the preparation of any
Registration Statement, each prospectus included therein or filed with
the SEC, and each amendment thereof or supplement thereto, and will give
each of them such access to its books and records and opportunities to
discuss the business of the Company with its officers and the independent
public accountants who have certified its financial statements as shall
be necessary to conduct a reasonable investigation within the meaning of
the Securities Act.
(f) The Company shall notify each Holder of Registrable
Securities covered by a Registration Statement, during the time when a
prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in the Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
4. BLACKOUT PERIOD. At any time after the effective date of the
Registration Statement, if the Company gives to the Holder a notice
pursuant to Paragraph 3(f) hereof and stating that the Company requires
the suspension by the Holder of the distribution of any of the
Registrable Securities, then the Holder shall cease distributing the
Registrable Securities for such period of time (the "Blackout Period"),
not to exceed 120 days from the time notice is sent until the Company
informs the Holder that the Blackout Period has been terminated. Upon
notice by the Company to the Holder of such determination, the Holder
will (a) keep the fact of any such notice strictly confidential, (b)
promptly halt any offer, sale, trading or transfer of any of the
Registrable Securities for the duration of the Blackout Period, and (c)
promptly halt any use, publication, dissemination or distribution of each
prospectus included within the Registration Statement, and any amendment
or supplement thereto by it and any of its affiliates for the duration of
the Blackout Period.
5. LOCK-UP. In connection with any Underwritten Public Offering,
the Holder agrees, if requested, to execute a lock-up letter addressed to
the managing underwriter in customary form agreeing not to sell or
otherwise dispose of the Registrable Securities owned by the Holder
(other than any that may be included in the offering) for a period not
exceeding 180 days.
6. DELAY OF REGISTRATION. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any
registration of the Registrable Securities as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Agreement.
7. INDEMNIFICATION BY THE COMPANY. In the event of any
registration of the Registrable Securities of the Company under the
Securities Act, pursuant to the terms of this Agreement, the Company
agrees to indemnity and hold harmless the Holder and each other person
who participates as an underwriter in the offering or sale of the
Registrable Securities against any and all claims, demands, losses,
costs, expenses, obligations, liabilities, joint or several, damages,
recoveries and deficiencies, including interest, penalties and attorneys'
fees (collectively the "Claims"), to which the Holder or any such
underwriter may become subject under the Securities Act or otherwise,
insofar as the Claims or actions or proceedings, whether commenced or
threatened, in respect thereto arise out of or are based on any untrue
statement or alleged untrue statement of any material fact contained in
any Registration Statement under which the Holder's Registrable
Securities were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or
any amendment or supplement thereto, or any omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company
will
reimburse the Holder and each such underwriter for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any Claim or action or proceeding in respect thereto; provided
that the Company shall not be liable in any such case to the extent that
any Claim or action or proceeding in respect thereof or expense arises
out of or is based on an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement in reliance on and in conformity with written information
furnished to the Company through an instrument duly executed by the
Holder specifically stating that it is for use in the preparation
thereof. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of the Holder or any such
underwriter and survive the transfer of the Registrable Securities by the
Holder.
8. INDEMNIFICATION BY THE HOLDER. The Company may require, as a
condition to including the Registrable Securities in any Registration
Statement filed pursuant to this Agreement, that the Company shall have
received an undertaking satisfactory to it from the Holder, to indemnify
and hold harmless (in the same manner and to the same extent as set forth
in Paragraph 7 hereof) the Company, each director and officer of the
Company and each other person, if any, who controls the Company within
the meaning of the Securities Act, with respect to any statement or
alleged statement or alleged statement in or omission or alleged omission
from the Registration Statement, any preliminary prospectus contained
therein, or any amendment or supplement thereto, if such statement or
alleged statement or omission or alleged omission was made in reliance on
and in conformity with written information furnished to the Company
through an instrument duly executed by the Holder specifically stating
that it is for use in the preparation of the Registration Statement,
preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement. Notwithstanding the foregoing, the maximum liability
hereunder which the Holder shall be required to suffer shall be limited
to the net proceeds to the Holder from the Registrable Securities sold by
the Holder in any such offering. Such indemnity shall remain in full
force and effect, regardless of any investigation made by or on behalf of
the Company or any such director, officer or controlling person and shall
survive the transfer of the Registrable Securities by the Holder.
9. NOTICE OF CLAIMS. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving
a Claim, such indemnified party will, if a claim in respect thereof is to
be made against an indemnifying party, give written notice to the latter
of the commencement of such action, provided that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under this Agreement except to the
extent that the indemnifying party is actually prejudiced by such failure
to give notice. In case any such action is brought against an
indemnifying party, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of a Claim the indemnifying party shall be
entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified to the extent that
it may wish, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the consent of the indemnified party,
consent to entry of any judgment or enter into any settlement that does
not include as an unconditional term thereof the giving by the claimant
or plaintiff to such indemnified party of a release from all liability in
respect of a Claim.
10. INDEMNIFICATION PAYMENTS. The indemnification required by this
Agreement shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
11. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Agreement may
be assigned by the Holder to a transferee or assignee of such securities
who shall, upon such transfer or assignment, be deemed a Holder under
this Agreement; provided that the Company is furnished with written
notice of the name and address of such transferee or assignee and the
Registrable Securities with respect to which the Registration Rights are
being assigned; provided, further, that such assignment shall be
effective only if immediately following such transfer the further
disposition of such securities by the transferee or assignee is
restricted under the Securities Act and that such transferee or assignee
is either (a) a member of the immediate family or a trust for the benefit
of any Holder that is an individual or (b) a transferee or assignee that
after the transfer or assignment holds all of the Registrable Securities.
12. TERMINATION OF THIS AGREEMENT. This Agreement shall terminate
with respect to the Holder when all of the Registrable Securities have
been registered as provided herein.
13. ATTORNEY'S FEES. In the event that it should become necessary
for any party entitled hereunder to bring suit against any other party to
this Agreement for enforcement of the covenants herein contained, the
parties hereby covenant and agree that the party who is found to be in
violation of said covenants shall also be liable for all reasonable
counsel's fees and costs of court incurred by the other parties hereto.
14. GOVERNING LAW; JURISDICTION. This Agreement shall be governed
by and construed in accordance with the laws of the State of California,
without regard to any conflicts of laws provisions thereof. Each party
hereby irrevocably submits to the personal jurisdiction of the United
States District Court for Orange County, California, as well as of the
Superior Courts of the State of
California in Orange County, California over any suit, action or
proceeding arising out of or relating to this Agreement. Each party
hereby irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue
of any such mediation, arbitration, suit, action or proceeding brought in
any such county and any claim that any such mediation, arbitration, suit,
action or proceeding brought in such county has been brought in an
inconvenient forum.
15. ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement, or the breach, termination, or validity
thereof, shall be settled by final and binding arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration
Association ("AAA Rules") in effect as of the effective date of this
Agreement. The American Arbitration Association shall be responsible for
(a) appointing a sole arbitrator, and (b) administering the case in
accordance with the AAA Rules. The situs of the arbitration shall be
Irvine, California. Upon the application of either party to this
Agreement, and whether or not an arbitration proceeding has yet been
initiated, all courts having jurisdiction hereby are authorized to: (x)
issue and enforce in any lawful manner, such temporary restraining
orders, preliminary injunctions and other interim measures of relief as
may be necessary to prevent harm to a party's interest or as otherwise
may be appropriate pending the conclusion of arbitration proceedings
pursuant to this Agreement; and (y) enter and enforce in any lawful
manner such judgments for permanent equitable relief as may be necessary
to prevent harm to a party's interest or as otherwise may be appropriate
following the issuance of arbitral awards pursuant to this Agreement.
Any order or judgment rendered by the arbitrator may be entered and
enforced by any court having competent jurisdiction.
16. BENEFIT. All the terms and provisions of this Agreement shall
be binding upon and inure to the benefit of and be enforceable by the
parties hereto, and their respective heirs, executors, administrators,
personal representatives, successors and permitted assigns.
Notwithstanding anything herein contained to the contrary, the Company
shall have the right to assign this Agreement to any party without the
consent of the Holder.
17. NOTICES. All notices, requests and other communications
hereunder shall be in writing and shall be deemed to have been duly given
at the time of receipt if delivered by hand or communicated by electronic
transmission, or, if mailed, three days after deposit in the United
States mail, registered or certified, return receipt requested, with
postage prepaid and addressed to the party to receive same, if to the
Company, addressed to Mr. Xxxx Xxxxx at 0 Xxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx 00000, telephone (000) 000-0000, fax (000) 000-0000, and
e-mail xxxxxx@xxxxx.xxx; and if to the Holder, addressed to Mr. Xxxxx
Tirella at 00000 Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxxxx 00000, and
telephone (000) 000-0000, however, that if either party shall have
designated a different address by notice to the other given as provided
above, then any subsequent notice shall be addressed to such party at the
last address so designated.
18. CONSTRUCTION. Words of any gender used in this Agreement shall
be held and construed to include any other gender, and words in the
singular number shall be held to include the plural, and vice versa,
unless the context requires otherwise. In addition, the pronouns used in
this Agreement shall be understood and construed to apply whether the
party referred to is an individual, partnership, joint venture,
corporation or an individual or individuals doing business under a firm
or trade name, and the masculine, feminine and neuter pronouns shall each
include the other and may be used interchangeably with the same meaning.
19. GENERAL ASSURANCES. The parties agree to execute, acknowledge,
and deliver all such further instruments, and do all such other acts, as
may be necessary or appropriate in order to carry out the intent and
purposes of this Agreement.
20. CONSTRUCTION OF AGREEMENT. The parties hereto acknowledge and
agree that neither this Agreement nor any of the other documents executed
in connection herewith shall be construed more favorably in favor of one
than the other based upon which party drafted the same, it being
acknowledged that each of the parties hereto contributed substantially to
the negotiation and preparation of this Agreement and the documents
executed in connection herewith.
21. NO THIRD PARTY BENEFICIARIES. Except as otherwise expressly
forth in this Agreement, no person or entity not a party to this
Agreement shall have rights under this Agreement as a third party
beneficiary or otherwise.
22. INCORPORATION BY REFERENCE. Any agreement referred to herein
is hereby incorporated into this Agreement by this reference.
23. WAIVER. No course of dealing on the part of any party hereto
or its agents, or any failure or delay by any such party with respect to
exercising any right, power or privilege of such party under this
Agreement or any instrument referred to herein shall operate as a waiver
thereof, and any single or partial exercise of any such right, power or
privilege shall not preclude any later exercise thereof or any exercise
of any other right, power or privilege hereunder or thereunder.
24. CUMULATIVE RIGHTS. The rights and remedies of any party under
this Agreement and the instruments executed or to be executed in
connection herewith, or any of them, shall be cumulative and the exercise
or partial exercise of any such right or remedy shall not preclude the
exercise of any other right or remedy.
25. INVALIDITY. In the event any one or more of the provisions
contained in this Agreement or in any instrument referred to herein or
executed in connection herewith shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect the other provisions of
this Agreement or any such other instrument.
26. EXCUSABLE DELAY. None of the parties hereto shall be obligated
to perform and none shall be deemed to be in default hereunder, if the
performance of a non-monetary obligation is prevented by the occurrence
of any of the following, other than as the result of the financial
inability of the party obligated to perform: acts of God, strikes,
lock-outs, other industrial disturbances, acts of a public enemy, wars or
war-like action (whether actual, impending or expected and whether de
jure or de facto), arrest or other restraint of governmental (civil or
military) blockades, insurrections, riots, epidemics, landslides,
lightning, earthquakes, fires, hurricanes, storms, floods, washouts, sink
holes, civil disturbances, explosions, breakage or accident to equipment
or machinery, confiscation or seizure by any government of public
authority, nuclear reaction or radiation, radioactive contamination or
other causes, whether of the kind herein enumerated, or otherwise, that
are not reasonably within the control of the party claiming the right to
delay performance on account of such occurrence.
27. TIME OF THE ESSENCE. Time is of the essence of this Agreement.
28. HEADINGS. The headings used in this Agreement are for
convenience and reference only and in no way define, limit, simplify or
describe the scope or intent of this Agreement, and in no way effect or
constitute a part of this Agreement.
29. MULTIPLE COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
30. ENTIRE AGREEMENT. This instrument contains the entire
understanding of the parties with respect to the subject matter hereof,
and may not be changed orally, but only by an instrument in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension, or discharge is sought.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first written above.
UNIVERSAL BROADBAND
COMMUNICATIONS, INC.
By/s/Xxxx Xxxxx
---------------------------------
Xxxx Xxxxx, President
/s/Xxxxx Tirella
-----------------------------------
XXXXX TIRELLA
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is entered into as of January 13, 2003, by and
between UNIVERSAL BROADBAND COMMUNICATIONS, INC., a Nevada corporation
(the "Company"), and XXXXXX XXXXXX (the "Holder").
WHEREAS, on even date herewith the Company executed and delivered to
the Holder 275,000 shares of the Company's common stock, par value $0.001
per share (the "Common Stock");
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
1. REGISTRATION RIGHTS AVAILABLE. Pursuant to the terms and
conditions contained herein, the Company agrees to provide the Holder or
any permitted assignee of the Holder (collectively, the "Holder") with
the right to "piggyback" (the "Registration Rights") on a firm commitment
underwritten offering with respect to the Common Stock and any other
securities issued or issuable at any time or from time to time in respect
of the Common Stock as a result of a merger, consolidation,
reorganization, stock split, stock dividend, recapitalization or other
similar event involving the Company (collectively, the "Registrable
Securities").
2. REGISTRATION RIGHTS. With respect to the Registration Rights,
the parties agree as follows:
(a) Subject to Paragraph 2(b), the Company will (i) promptly
give to the Holder written notice of any registration relating to an
Underwritten Public Offering, and (ii) include in such registration (and
related qualification under blue sky laws or other compliance) such of
the Holder's Registrable Securities as are specified in the Holder's
written request or requests, mailed in accordance with the terms of this
Agreement within 30 days after the date of such written notice from the
Company.
(b) The right of the Holder to registration pursuant to the
Registration Rights shall be conditioned upon the Holder's participation
in such underwriting, and the inclusion of the Registrable Securities in
the underwriting shall be limited to the extent provided herein. The
Holder shall (together with the Company) enter into an underwriting
agreement in customary form with the managing underwriter selected for
the Underwritten Public Offering by the Company. Notwithstanding any
other provision of this Agreement, if the managing underwriter determines
that marketing factors require a limitation of the number of the
Registrable Securities to be underwritten, the managing underwriter may
limit some or all of the Registrable Securities that may be included in
the registration and the Underwritten Public Offering as follows: the
number of the Registrable Securities that may be included in the
registration and the Underwritten Public Offering by the Holder shall be
determined by multiplying the number of the shares of the Registrable
Securities of all selling shareholders of the Company which the managing
underwriter is willing to include in such registration and the
Underwritten Public Offering times a fraction, the numerator of which is
the number of the Registrable Securities requested to be included in such
registration and the Underwritten Public Offering by the Holder, and the
denominator of which is the total number of the Registrable Securities
which all selling shareholders of the Company have requested to be
included in such registration and the Underwritten Public Offering. To
facilitate the allocation of shares in accordance with the above
provisions, the Company may round the number of shares allocable to any
such person to the nearest 100 shares. If the Holder disapproves of the
terms of any such underwriting, it may elect to withdraw therefrom by
written notice to the Company and the managing underwriter, delivered not
less than seven days before the effective date of the Underwritten Public
Offering. Any of the Registrable Securities excluded or withdrawn from
the Underwritten Public Offering shall be withdrawn from such
registration, and shall not be transferred in a public distribution prior
to 60 days after the effective date of the Registration Statement
relating thereto, or such other shorter period of time as the
underwriters may require.
3. REGISTRATION PROCEDURE. With respect to the Registration
Rights, the following provisions shall apply:
(a) The Holder shall be obligated to furnish to the Company
and the underwriters such information regarding the Registrable
Securities and the proposed manner of distribution of the Registrable
Securities as the Company and the underwriters may request in writing and
as shall be required in connection with any registration, qualification
or compliance referred to herein and shall otherwise cooperate with the
Company and the underwriters in connection with such registration,
qualification or compliance.
(b) With a view to making available the benefits of certain
rules and regulations of the Securities and Exchange Commission (the
"SEC") which may at any time permit the sale of any Restricted Securities
as defined in Rule 144 ("Rule 144") promulgated under the Securities Act
of 1933, as amended (the "Securities Act") to the public without
registration, the Company agrees to use its best lawful efforts to:
(i) Make and keep public information available, as those
terms are understood and defined in Rule 144 at all times during which
the Company is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act");
(ii) File with the SEC in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act (at all times during which the Company is subject to such
reporting requirements); and
(iii)So long as the Holder owns any Restricted Securities,
to furnish to the Holder upon request a written statement from the
Company as to its compliance with the reporting requirements of Rule 144
and with regard to the Securities Act and the Exchange Act (at all times
during which the Company is subject to such reporting requirements), a
copy of the most recent annual or quarterly report of the Company, and
such other reports and documents of the Company and other information in
the possession of or reasonably obtainable by the Company as the Holder
may reasonably request in availing itself of any rule or regulation of
the SEC allowing the Holder to sell any Restricted Securities without
registration.
(c) The Company agrees that it will furnish to the Holder such
number of prospectuses meeting the requirements of Section 10(a)(3) of
the Securities Act, offering circulars or other documents incident to any
registration, qualification or compliance referred to herein as provided
or, if not otherwise provided, as the Holder from time to time may
reasonably request.
(d) All expenses (except for any underwriting and selling
discounts and commissions and legal fees for the Holder's attorneys) of
any registrations permitted pursuant to this Agreement and of all other
offerings by the Company (including, but not limited to, the expenses of
any qualifications under the blue sky or other state securities laws and
compliance with governmental requirements of preparing and filing any
post-effective amendments required for the lawful distribution of the
Registrable Securities to the public in connection with such
registration, of supplying prospectuses, offering circulars or other
documents) will be paid by the Company.
(e) In connection with the preparation and filing of any
Registration Statement under the Securities Act pursuant to this
Agreement, the Company will give the Holder and the Holder's attorneys
and accountants, the opportunity to participate in the preparation of any
Registration Statement, each prospectus included therein or filed with
the SEC, and each amendment thereof or supplement thereto, and will give
each of them such access to its books and records and opportunities to
discuss the business of the Company with its officers and the independent
public accountants who have certified its financial statements as shall
be necessary to conduct a reasonable investigation within the meaning of
the Securities Act.
(f) The Company shall notify each Holder of Registrable
Securities covered by a Registration Statement, during the time when a
prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in the Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
4. BLACKOUT PERIOD. At any time after the effective date of the
Registration Statement, if the Company gives to the Holder a notice
pursuant to Paragraph 3(f) hereof and stating that the Company requires
the suspension by the Holder of the distribution of any of the
Registrable Securities, then the Holder shall cease distributing the
Registrable Securities for such period of time (the "Blackout Period"),
not to exceed 120 days from the time notice is sent until the Company
informs the Holder that the Blackout Period has been terminated. Upon
notice by the Company to the Holder of such determination, the Holder
will (a) keep the fact of any such notice strictly confidential, (b)
promptly halt any offer, sale, trading or transfer of any of the
Registrable Securities for the duration of the Blackout Period, and (c)
promptly halt any use, publication, dissemination or distribution of each
prospectus included within the Registration Statement, and any amendment
or supplement thereto by it and any of its affiliates for the duration of
the Blackout Period.
5. LOCK-UP. In connection with any Underwritten Public Offering,
the Holder agrees, if requested, to execute a lock-up letter addressed to
the managing underwriter in customary form agreeing not to sell or
otherwise dispose of the Registrable Securities owned by the Holder
(other than any that may be included in the offering) for a period not
exceeding 180 days.
6. DELAY OF REGISTRATION. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any
registration of the Registrable Securities as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Agreement.
7. INDEMNIFICATION BY THE COMPANY. In the event of any
registration of the Registrable Securities of the Company under the
Securities Act, pursuant to the terms of this Agreement, the Company
agrees to indemnity and hold harmless the Holder and each other person
who participates as an underwriter in the offering or sale of the
Registrable Securities against any and all claims, demands, losses,
costs, expenses, obligations, liabilities, joint or several, damages,
recoveries and deficiencies, including interest, penalties and attorneys'
fees (collectively the "Claims"), to which the Holder or any such
underwriter may become subject under the Securities Act or otherwise,
insofar as the Claims or actions or proceedings, whether commenced or
threatened, in respect thereto arise out of or are based on any untrue
statement or alleged untrue statement of any material fact contained in
any Registration Statement under which the Holder's Registrable
Securities were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or
any amendment or supplement thereto, or any omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company
will
reimburse the Holder and each such underwriter for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any Claim or action or proceeding in respect thereto; provided
that the Company shall not be liable in any such case to the extent that
any Claim or action or proceeding in respect thereof or expense arises
out of or is based on an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement in reliance on and in conformity with written information
furnished to the Company through an instrument duly executed by the
Holder specifically stating that it is for use in the preparation
thereof. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of the Holder or any such
underwriter and survive the transfer of the Registrable Securities by the
Holder.
8. INDEMNIFICATION BY THE HOLDER. The Company may require, as a
condition to including the Registrable Securities in any Registration
Statement filed pursuant to this Agreement, that the Company shall have
received an undertaking satisfactory to it from the Holder, to indemnify
and hold harmless (in the same manner and to the same extent as set forth
in Paragraph 7 hereof) the Company, each director and officer of the
Company and each other person, if any, who controls the Company within
the meaning of the Securities Act, with respect to any statement or
alleged statement or alleged statement in or omission or alleged omission
from the Registration Statement, any preliminary prospectus contained
therein, or any amendment or supplement thereto, if such statement or
alleged statement or omission or alleged omission was made in reliance on
and in conformity with written information furnished to the Company
through an instrument duly executed by the Holder specifically stating
that it is for use in the preparation of the Registration Statement,
preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement. Notwithstanding the foregoing, the maximum liability
hereunder which the Holder shall be required to suffer shall be limited
to the net proceeds to the Holder from the Registrable Securities sold by
the Holder in any such offering. Such indemnity shall remain in full
force and effect, regardless of any investigation made by or on behalf of
the Company or any such director, officer or controlling person and shall
survive the transfer of the Registrable Securities by the Holder.
9. NOTICE OF CLAIMS. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving
a Claim, such indemnified party will, if a claim in respect thereof is to
be made against an indemnifying party, give written notice to the latter
of the commencement of such action, provided that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under this Agreement except to the
extent that the indemnifying party is actually prejudiced by such failure
to give notice. In case any such action is brought against an
indemnifying party, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of a Claim the indemnifying party shall be
entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified to the extent that
it may wish, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the consent of the indemnified party,
consent to entry of any judgment or enter into any settlement that does
not include as an unconditional term thereof the giving by the claimant
or plaintiff to such indemnified party of a release from all liability in
respect of a Claim.
10. INDEMNIFICATION PAYMENTS. The indemnification required by this
Agreement shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
11. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Agreement may
be assigned by the Holder to a transferee or assignee of such securities
who shall, upon such transfer or assignment, be deemed a Holder under
this Agreement; provided that the Company is furnished with written
notice of the name and address of such transferee or assignee and the
Registrable Securities with respect to which the Registration Rights are
being assigned; provided, further, that such assignment shall be
effective only if immediately following such transfer the further
disposition of such securities by the transferee or assignee is
restricted under the Securities Act and that such transferee or assignee
is either (a) a member of the immediate family or a trust for the benefit
of any Holder that is an individual or (b) a transferee or assignee that
after the transfer or assignment holds all of the Registrable Securities.
12. TERMINATION OF THIS AGREEMENT. This Agreement shall terminate
with respect to the Holder when all of the Registrable Securities have
been registered as provided herein.
13. ATTORNEY'S FEES. In the event that it should become necessary
for any party entitled hereunder to bring suit against any other party to
this Agreement for enforcement of the covenants herein contained, the
parties hereby covenant and agree that the party who is found to be in
violation of said covenants shall also be liable for all reasonable
counsel's fees and costs of court incurred by the other parties hereto.
14. GOVERNING LAW; JURISDICTION. This Agreement shall be governed
by and construed in accordance with the laws of the State of California,
without regard to any conflicts of laws provisions thereof. Each party
hereby irrevocably submits to the personal jurisdiction of the United
States District Court for Orange County, California, as well as of the
Superior Courts of the State of
California in Orange County, California over any suit, action or
proceeding arising out of or relating to this Agreement. Each party
hereby irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue
of any such mediation, arbitration, suit, action or proceeding brought in
any such county and any claim that any such mediation, arbitration, suit,
action or proceeding brought in such county has been brought in an
inconvenient forum.
15. ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement, or the breach, termination, or validity
thereof, shall be settled by final and binding arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration
Association ("AAA Rules") in effect as of the effective date of this
Agreement. The American Arbitration Association shall be responsible for
(a) appointing a sole arbitrator, and (b) administering the case in
accordance with the AAA Rules. The situs of the arbitration shall be
Irvine, California. Upon the application of either party to this
Agreement, and whether or not an arbitration proceeding has yet been
initiated, all courts having jurisdiction hereby are authorized to: (x)
issue and enforce in any lawful manner, such temporary restraining
orders, preliminary injunctions and other interim measures of relief as
may be necessary to prevent harm to a party's interest or as otherwise
may be appropriate pending the conclusion of arbitration proceedings
pursuant to this Agreement; and (y) enter and enforce in any lawful
manner such judgments for permanent equitable relief as may be necessary
to prevent harm to a party's interest or as otherwise may be appropriate
following the issuance of arbitral awards pursuant to this Agreement.
Any order or judgment rendered by the arbitrator may be entered and
enforced by any court having competent jurisdiction.
16. BENEFIT. All the terms and provisions of this Agreement shall
be binding upon and inure to the benefit of and be enforceable by the
parties hereto, and their respective heirs, executors, administrators,
personal representatives, successors and permitted assigns.
Notwithstanding anything herein contained to the contrary, the Company
shall have the right to assign this Agreement to any party without the
consent of the Holder.
17. NOTICES. All notices, requests and other communications
hereunder shall be in writing and shall be deemed to have been duly given
at the time of receipt if delivered by hand or communicated by electronic
transmission, or, if mailed, three days after deposit in the United
States mail, registered or certified, return receipt requested, with
postage prepaid and addressed to the party to receive same, if to the
Company, addressed to Mr. Xxxx Xxxxx at 0 Xxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx 00000, telephone (000) 000-0000, fax (000) 000-0000, and
e-mail xxxxxx@xxxxx.xxx; and if to the Holder, addressed to Xx. Xxxxxx
Xxxxxx at 00000 Xxxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, telephone (949)
000-0000, fax (000) 000-0000, and e-mail xxxxxxx@xxxxxxxxxxxx.xxx;
provided, however, that if either party shall have designated a different
address by notice to the other given as provided above, then any
subsequent notice shall be addressed to such party at the last address so
designated.
18. CONSTRUCTION. Words of any gender used in this Agreement shall
be held and construed to include any other gender, and words in the
singular number shall be held to include the plural, and vice versa,
unless the context requires otherwise. In addition, the pronouns used in
this Agreement shall be understood and construed to apply whether the
party referred to is an individual, partnership, joint venture,
corporation or an individual or individuals doing business under a firm
or trade name, and the masculine, feminine and neuter pronouns shall each
include the other and may be used interchangeably with the same meaning.
19. GENERAL ASSURANCES. The parties agree to execute, acknowledge,
and deliver all such further instruments, and do all such other acts, as
may be necessary or appropriate in order to carry out the intent and
purposes of this Agreement.
20. CONSTRUCTION OF AGREEMENT. The parties hereto acknowledge and
agree that neither this Agreement nor any of the other documents executed
in connection herewith shall be construed more favorably in favor of one
than the other based upon which party drafted the same, it being
acknowledged that each of the parties hereto contributed substantially to
the negotiation and preparation of this Agreement and the documents
executed in connection herewith.
21. NO THIRD PARTY BENEFICIARIES. Except as otherwise expressly
forth in this Agreement, no person or entity not a party to this
Agreement shall have rights under this Agreement as a third party
beneficiary or otherwise.
22. INCORPORATION BY REFERENCE. Any agreement referred to herein
is hereby incorporated into this Agreement by this reference.
23. WAIVER. No course of dealing on the part of any party hereto
or its agents, or any failure or delay by any such party with respect to
exercising any right, power or privilege of such party under this
Agreement or any instrument referred to herein shall operate as a waiver
thereof, and any single or partial exercise of any such right, power or
privilege shall not preclude any later exercise thereof or any exercise
of any other right, power or privilege hereunder or thereunder.
24. CUMULATIVE RIGHTS. The rights and remedies of any party under
this Agreement and the instruments executed or to be executed in
connection herewith, or any of them, shall be cumulative and the exercise
or partial exercise of any such right or remedy shall not preclude the
exercise of any other right or remedy.
25. INVALIDITY. In the event any one or more of the provisions
contained in this Agreement or in any instrument referred to herein or
executed in connection herewith shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect the other provisions of
this Agreement or any such other instrument.
26. EXCUSABLE DELAY. None of the parties hereto shall be obligated
to perform and none shall be deemed to be in default hereunder, if the
performance of a non-monetary obligation is prevented by the occurrence
of any of the following, other than as the result of the financial
inability of the party obligated to perform: acts of God, strikes,
lock-outs, other industrial disturbances, acts of a public enemy, wars or
war-like action (whether actual, impending or expected and whether de
jure or de facto), arrest or other restraint of governmental (civil or
military) blockades, insurrections, riots, epidemics, landslides,
lightning, earthquakes, fires, hurricanes, storms, floods, washouts, sink
holes, civil disturbances, explosions, breakage or accident to equipment
or machinery, confiscation or seizure by any government of public
authority, nuclear reaction or radiation, radioactive contamination or
other causes, whether of the kind herein enumerated, or otherwise, that
are not reasonably within the control of the party claiming the right to
delay performance on account of such occurrence.
27. TIME OF THE ESSENCE. Time is of the essence of this Agreement.
28. HEADINGS. The headings used in this Agreement are for
convenience and reference only and in no way define, limit, simplify or
describe the scope or intent of this Agreement, and in no way effect or
constitute a part of this Agreement.
29. MULTIPLE COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
30. ENTIRE AGREEMENT. This instrument contains the entire
understanding of the parties with respect to the subject matter hereof,
and may not be changed orally, but only by an instrument in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension, or discharge is sought.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first written above.
UNIVERSAL BROADBAND
COMMUNICATIONS, INC.
By/s/Xxxx Xxxxx
---------------------------------
Xxxx Xxxxx, President
/s/Xxxxxx Xxxxxx
-----------------------------------
XXXXXX XXXXXX
NON-COMPETITION AGREEMENT
THIS AGREEMENT is made this 13th day of January, 2003, between
UNIVERSAL BROADBAND COMMUNICATIONS, INC., a Nevada corporation (the
"Company"), and XXXXXX XXXXXX (the "Employee").
WHEREAS, this Agreement is being entered into pursuant to the
provisions of that certain Asset Purchase Agreement dated January 13,
2003 by and between the Company, UNetCommerce, Inc., a Delaware
corporation ("UNetCommerce"), Xxxxx Tirella, and the Employee (the "Asset
Purchase Agreement"); and
WHEREAS, pursuant to the Asset Purchase Agreement, the Employee and
the Company have executed that certain Employment Agreement of even date
herewith (the "Employment Agreement"); and
WHEREAS, the execution and delivery of this Agreement by the
Employee is a condition precedent to the consummation of the transactions
contemplated in the Asset Purchase Agreement;
NOW, THEREFORE, in consideration of the foregoing and the following
mutual covenants and agreements, the parties hereto do hereby agree as
follows:
1. PAYMENT TO THE EMPLOYEE. Contemporaneously with the execution
and delivery of this Agreement, and in full and final payment of all
obligations of the Company to the Employee hereunder, there has been
delivered to the Employee 275,000 shares of the Company's common stock,
par value $0.001 per share, the receipt and sufficiency of which are
hereby acknowledged by the Employee.
2. COVENANT NOT TO COMPETE. The Employee hereby covenants and
agrees with the Company that during the period which is the longer of two
years, the term of his employment with the Company, or 18 months after
the termination of his employment, for any reason, with or without cause,
the Employee will not, except as expressly permitted hereunder, directly
or indirectly:
(a) Operate, develop or own any interest other than the
ownership of less than five percent of the equity securities of a
publicly traded company, in any business which has significant activities
(viewed in relation to the business of the Company or its affiliates), or
has announced intentions to focus significant resources, relating to any
business in which the Company or its affiliates is currently engaged and
the business of building, owning, managing, leasing or operating wireless
carriers or other similar entities (a "Business");
(b) Compete with the Company or its affiliates in the
operation or development of any Business within North America (Canada,
Mexico, and the United States of America);
(c) Be employed by any business which owns, manages, or
operates a Business;
(d) Interfere with, solicit, disrupt or attempt to disrupt any
past, present or prospective relationship, contractual or otherwise,
between the Company or its affiliates, and any customer, client, supplier
or employee of the Company or its affiliates; or
(e) Solicit any employee of the Company or its affiliates to
leave their employment with the Company or its subsidiaries or
affiliates, as the case may be, or hire any such employee to work for a
Business.
The Employee shall not be entitled to circumvent the provisions of
this Agreement by entering into a relationship with a Business as a
consultant, director, adviser, or otherwise, which has the effect of
competing with the Company, its affiliates or subsidiaries.
This covenant on the part of the Employee shall be construed as an
agreement independent of any other provision of this Agreement and the
existence of any claim or cause of action by the Employee against the
Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of this covenant.
3. REMEDIES FOR BREACH. If the Employee commits a breach, or
threatens to commit a breach, of any of the provisions of this Agreement,
the Company shall have the following rights and remedies, in addition to
any others, each of which shall be independent of the other and severally
enforceable:
(a) The right to have the provisions of this Agreement
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach or threatened breach will
cause irreparable injury to the Company and that money damages will not
provide an adequate remedy to the Company; and
The right and remedy to require the Employee to account for and pay
over to the Company all compensation, profits, monies, accruals,
increments, or other benefits (the "Benefits") derived or received by the
Employee as a result of any transactions constituting a breach of any of
the provisions of this Agreement, the Employee agreeing to account for
and pay over the Benefits as provided above.
4. CONTROLLING AGREEMENT. In the event of any conflict between
the terms of this Agreement, the Employment Agreement, or the Asset
Purchase Agreement, the terms of the Asset Purchase Agreement shall
control.
5. ATTORNEY'S FEES. In the event that it should become necessary
for any party entitled hereunder to bring suit against any other party to
this Agreement for enforcement of the covenants herein contained, the
parties hereby covenant and agree that the party who is found to be in
violation of said covenants shall also be liable for all reasonable
attorney's fees and costs of court incurred by the other parties hereto.
6. BENEFIT. All the terms and provisions of this Agreement shall
be binding upon and inure to the benefit of and be enforceable by the
parties hereto, and their respective heirs, executors, administrators,
personal representatives, successors and permitted assigns.
7. NOTICE. All notices, requests and other communications
hereunder shall be in writing and shall be deemed to have been duly given
at the time of receipt if delivered by hand or communicated by electronic
transmission, or, if mailed, three days after deposit in the United
States mail, registered or certified, return receipt requested, with
postage prepaid and addressed to the party to receive same, if to the
Company, addressed to Mr. Xxxx Xxxxx at 0 Xxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx 00000, telephone (000) 000-0000, fax (000) 000-0000, and
e-mail xxxxxx@xxxxx.xxx; and if to the Employee, addressed to Xx. Xxxxxx
Xxxxxx at 00000 Xxxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, telephone (949)
000-0000, fax (000) 000-0000, and e-mail xxxxxxx@xxxxxxxxxxxx.xxx;
provided, however, that if either party shall have designated a different
address by notice to the other given as provided above, then any
subsequent notice shall be addressed to such party at the last address so
designated.
8. CONSTRUCTION. Words of any gender used in this Agreement shall
be held and construed to include any other gender, and words in the
singular number shall be held to include the plural, and vice versa,
unless the context requires otherwise. In addition, the pronouns used in
this Agreement shall be understood and construed to apply whether the
party referred to is an individual, partnership, joint venture,
corporation or an individual or individuals doing business under a firm
or trade name, and the masculine, feminine and neuter pronouns shall each
include the other and may be used interchangeably with the same meaning.
9. WAIVER. No course of dealing on the part of any party hereto
or its agents, or any failure or delay by any such party with respect to
exercising any right, power or privilege of such party under this
Agreement or any instrument referred to herein shall operate as a waiver
thereof, and any single or partial exercise of any such right, power or
privilege shall not preclude any later exercise thereof or any exercise
of any other right, power or privilege hereunder or thereunder.
10. CUMULATIVE RIGHTS. The rights and remedies of any party under
this Agreement and the instruments executed or to be executed in
connection herewith, or any of them, shall be cumulative and the exercise
or partial exercise of any such right or remedy shall not preclude the
exercise of any other right or remedy.
11. INVALIDITY. If a judicial determination is made that any of
the provisions of this Agreement constitutes an unreasonable or otherwise
unenforceable restriction against the Employee, the provisions of this
Agreement shall be rendered void only to the extent that such judicial
determination finds such provisions to be unreasonable or otherwise
unenforceable. In this regard, the parties hereto hereby agree that any
judicial authority construing this Agreement shall be empowered to sever
any portion of the territory or prohibited business activity from the
coverage of this Agreement and to apply the provisions of this Agreement
to the remaining portion of the territory or the remaining business
activities not so severed by such judicial authority. Moreover,
notwithstanding the fact that any provisions of this Agreement are
determined not to be specifically enforceable, the Company shall
nevertheless be entitled to recover monetary damages as a result of the
breach of such provision by the Employee. The time period during which
the prohibitions set forth in this Agreement shall apply shall be tolled
and suspended as to the Employee for a period equal to the aggregate
quantity of time during which the Employee violates such prohibitions in
any respect.
12. HEADINGS. The headings used in this Agreement are for
convenience and reference only and in no way define, limit, simplify or
describe the scope or intent of this Agreement, and in no way effect or
constitute a part of this Agreement.
13. MULTIPLE COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
14. LAW GOVERNING. This Agreement shall be construed and governed
by the laws of the State of California, and all obligations hereunder
shall be deemed performable in Orange County, California.
15. ENTIRE AGREEMENT. This instrument contains the entire
understanding of the parties with respect to the subject matter hereof,
and may not be changed orally, but only by an instrument in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension, or discharge is sought.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the date first written above.
UNIVERSAL BROADBAND COMMUNICATIONS, INC.
By/s/Xxxx Xxxxx
-------------------------
Xxxx Xxxxx, President
/s/Xxxxxx Xxxxxx
---------------------------
XXXXXX XXXXXX
NON-COMPETITION AGREEMENT
THIS AGREEMENT is made this 13 day of January, 2003, between
UNIVERSAL BROADBAND COMMUNICATIONS, INC., a Nevada corporation (the
"Company"), and XXXXX TIRELLA (the "Employee").
WHEREAS, this Agreement is being entered into pursuant to the
provisions of that certain Asset Purchase Agreement dated January 13,
2003 by and between the Company, UNetCommerce, Inc., a Delaware
corporation ("UNetCommerce"), Xxxxx Tirella, and the Employee (the "Asset
Purchase Agreement"); and
WHEREAS, pursuant to the Asset Purchase Agreement, the Employee and
the Company have executed that certain Employment Agreement of even date
herewith (the "Employment Agreement"); and
WHEREAS, the execution and delivery of this Agreement by the
Employee is a condition precedent to the consummation of the transactions
contemplated in the Asset Purchase Agreement;
NOW, THEREFORE, in consideration of the foregoing and the following
mutual covenants and agreements, the parties hereto do hereby agree as
follows:
1. PAYMENT TO THE EMPLOYEE. Contemporaneously with the execution
and delivery of this Agreement, and in full and final payment of all
obligations of the Company to the Employee hereunder, there has been
delivered to the Employee 275,000 shares of the Company's common stock,
par value $0.001 per share, the receipt and sufficiency of which are
hereby acknowledged by the Employee.
2. COVENANT NOT TO COMPETE. The Employee hereby covenants and
agrees with the Company that during the period which is the longer of two
years, the term of his employment with the Company, or 18 months after
the termination of his employment, for any reason, with or without cause,
the Employee will not, except as expressly permitted hereunder, directly
or indirectly:
(a) Operate, develop or own any interest other than the
ownership of less than five percent of the equity securities of a
publicly traded company, in any business which has significant activities
(viewed in relation to the business of the Company or its affiliates), or
has announced intentions to focus significant resources, relating to any
business in which the Company or its affiliates is currently engaged and
the business of building, owning, managing, leasing or operating wireless
carriers or other similar entities (a "Business");
(b) Compete with the Company or its affiliates in the
operation or development of any Business within North America (Canada,
Mexico, and the United States of America);
(c) Be employed by any business which owns, manages, or
operates a Business;
(d) Interfere with, solicit, disrupt or attempt to disrupt any
past, present or prospective relationship, contractual or otherwise,
between the Company or its affiliates, and any customer, client, supplier
or employee of the Company or its affiliates; or
(e) Solicit any employee of the Company or its affiliates to
leave their employment with the Company or its subsidiaries or
affiliates, as the case may be, or hire any such employee to work for a
Business.
The Employee shall not be entitled to circumvent the provisions of
this Agreement by entering into a relationship with a Business as a
consultant, director, adviser, or otherwise, which has the effect of
competing with the Company, its affiliates or subsidiaries.
This covenant on the part of the Employee shall be construed as an
agreement independent of any other provision of this Agreement and the
existence of any claim or cause of action by the Employee against the
Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of this covenant.
3. REMEDIES FOR BREACH. If the Employee commits a breach, or
threatens to commit a breach, of any of the provisions of this Agreement,
the Company shall have the following rights and remedies, in addition to
any others, each of which shall be independent of the other and severally
enforceable:
(a) The right to have the provisions of this Agreement
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach or threatened breach will
cause irreparable injury to the Company and that money damages will not
provide an adequate remedy to the Company; and
The right and remedy to require the Employee to account for and pay
over to the Company all compensation, profits, monies, accruals,
increments, or other benefits (the "Benefits") derived or received by the
Employee as a result of any transactions constituting a breach of any of
the provisions of this Agreement, the Employee agreeing to account for
and pay over the Benefits as provided above.
4. CONTROLLING AGREEMENT. In the event of any conflict between
the terms of this Agreement, the Employment Agreement, or the Asset
Purchase Agreement, the terms of the Asset Purchase Agreement shall
control.
5. ATTORNEY'S FEES. In the event that it should become necessary
for any party entitled hereunder to bring suit against any other party to
this Agreement for enforcement of the covenants herein contained, the
parties hereby covenant and agree that the party who is found to be in
violation of said covenants shall also be liable for all reasonable
attorney's fees and costs of court incurred by the other parties hereto.
6. BENEFIT. All the terms and provisions of this Agreement shall
be binding upon and inure to the benefit of and be enforceable by the
parties hereto, and their respective heirs, executors, administrators,
personal representatives, successors and permitted assigns.
7. NOTICE. All notices, requests and other communications
hereunder shall be in writing and shall be deemed to have been duly given
at the time of receipt if delivered by hand or communicated by electronic
transmission, or, if mailed, three days after deposit in the United
States mail, registered or certified, return receipt requested, with
postage prepaid and addressed to the party to receive same, if to the
Company, addressed to Mr. Xxxx Xxxxx at 0 Xxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx 00000, telephone (000) 000-0000, fax (000) 000-0000, and
e-mail xxxxxx@xxxxx.xxx; and if to the Employee, addressed to Xx. Xxxxxx
Xxxxxx at 00000 Xxxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, telephone (949)
000-0000, fax (000) 000-0000, and e-mail xxxxxxx@xxxxxxxxxxxx.xxx;
provided, however, that if either party shall have designated a different
address by notice to the other given as provided above, then any
subsequent notice shall be addressed to such party at the last address so
designated.
8. CONSTRUCTION. Words of any gender used in this Agreement shall
be held and construed to include any other gender, and words in the
singular number shall be held to include the plural, and vice versa,
unless the context requires otherwise. In addition, the pronouns used in
this Agreement shall be understood and construed to apply whether the
party referred to is an individual, partnership, joint venture,
corporation or an individual or individuals doing business under a firm
or trade name, and the masculine, feminine and neuter pronouns shall each
include the other and may be used interchangeably with the same meaning.
9. WAIVER. No course of dealing on the part of any party hereto
or its agents, or any failure or delay by any such party with respect to
exercising any right, power or privilege of such party under this
Agreement or any instrument referred to herein shall operate as a waiver
thereof, and any single or partial exercise of any such right, power or
privilege shall not preclude any later exercise thereof or any exercise
of any other right, power or privilege hereunder or thereunder.
10. CUMULATIVE RIGHTS. The rights and remedies of any party under
this Agreement and the instruments executed or to be executed in
connection herewith, or any of them, shall be cumulative and the exercise
or partial exercise of any such right or remedy shall not preclude the
exercise of any other right or remedy.
11. INVALIDITY. If a judicial determination is made that any of
the provisions of this Agreement constitutes an unreasonable or otherwise
unenforceable restriction against the Employee, the provisions of this
Agreement shall be rendered void only to the extent that such judicial
determination finds such provisions to be unreasonable or otherwise
unenforceable. In this regard, the parties hereto hereby agree that any
judicial authority construing this Agreement shall be empowered to sever
any portion of the territory or prohibited business activity from the
coverage of this Agreement and to apply the provisions of this Agreement
to the remaining portion of the territory or the remaining business
activities not so severed by such judicial authority. Moreover,
notwithstanding the fact that any provisions of this Agreement are
determined not to be specifically enforceable, the Company shall
nevertheless be entitled to recover monetary damages as a result of the
breach of such provision by the Employee. The time period during which
the prohibitions set forth in this Agreement shall apply shall be tolled
and suspended as to the Employee for a period equal to the aggregate
quantity of time during which the Employee violates such prohibitions in
any respect.
12. HEADINGS. The headings used in this Agreement are for
convenience and reference only and in no way define, limit, simplify or
describe the scope or intent of this Agreement, and in no way effect or
constitute a part of this Agreement.
13. MULTIPLE COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
14. LAW GOVERNING. This Agreement shall be construed and governed
by the laws of the State of California, and all obligations hereunder
shall be deemed performable in Orange County, California.
15. ENTIRE AGREEMENT. This instrument contains the entire
understanding of the parties with respect to the subject matter hereof,
and may not be changed orally, but only by an instrument in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension, or discharge is sought.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the date first written above.
UNIVERSAL BROADBAND COMMUNICATIONS, INC.
By/s/Xxxx Xxxxx
-------------------------
Xxxx Xxxxx, President
/s/ Xxxxx Tirella
---------------------------
Xxxxx Tirella
End of Filing
