SERVICES AGREEMENT
SERVICES AGREEMENT made as of
the __ day of April, 2009 by and between GLOBAL TELESAT SERVICES CORP.,
a British Virgin Islands corporation with offices at 3 Xxx Xxxxxxxx Xxxxxx,
Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxx, XX0 0XX (the “Services Provider”), and
SANSWIRE CORP., a Florida corporation
with offices at 000 XX 0xx Xxxxxx,
Xxxxx 0000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 (the “Company”).
WITNESSETH:
WHEREAS, the Company is
directly and through a joint venture entity in which it is a party, engaged in
the development of a 34 meter mid-altitude unmanned airship designated as the
STS-111 which it intends to sell to both commercial and governmental customers;
and
WHEREAS, the Company requires
assistance with such development efforts with respect to activities relating to
the development of certain capabilities of the STS-111 relating to satellite
telecommunications; and
WHEREAS, the Services Provider
(and Global Telesat Corp., an affiliated entity, hereinafter referred to as
“GTC”) provides
satellite communications services to customers, including government customers,
and has developed certain equipment and related software utilized for voice and
data satellite communications services (the “Appliqués”); and
WHEREAS, accordingly, the
Services Provider (and GTC) has specialized experience and expertise in
activities relating to satellite telecommunications and has heretofore provided
significant assistance and services to the Company in connection with the
development of a satellite telecommunications capability for the STS-111;
and
WHEREAS, the Services
Provider, through GTC, has potential customers for the purchase and use of the
STS-111 and is prepared to continue to assist the Company in marketing the
STS-111 to such customers both before and after the STS-111 development
activities have been completed; and
WHEREAS, the Company wishes to
engage the services of the Services Provider to continue to provide services and
assistance to the Company in connection with the development and sale of a
satellite telecommunications capability for the STS-111 and related services as
described herein, and the Services Provider is willing to be so engaged to
continue to provide such assistance and services, all on and subject to the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in
consideration of the mutual covenants herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby unconditionally
acknowledged, the parties hereto do hereby agree as follows:
1.
Engagement
of the Services Provider. During the Term
(hereinafter defined) of this Agreement, the Company hereby engages
the Services Provider to provide the assistance and services described herein on
the basis hereinafter set forth, and the Services Provider hereby accepts such
engagement, upon and subject to the terms and conditions set forth in this
Agreement. The Company hereby acknowledges that the Services Provider
has heretofore provided the Company with substantial assistance and services in
regard to the development of the STS-111.
2.
The
Services Provider's Duties and Responsibilities.
2.1. The
Services Provider will provide certain assistance and services to the Company in
connection with required design and modifications to the STS-111 in order for it
to have a satellite telecommunications capability and marketing the STS-111 to
governmental and other customers introduced, and to be introduced, by the
Services Provider to the Company. In connection therewith, the
Services Provider will:
(i) assist
the Company in developing operational mission profiles for the
STS-111;
(ii) provide
the Company with access to one or more mobile Appliqués which are owned by GTC
and have data transmission satellite telecommunications capability;
(iii) provide
the Company with technical assistance with respect to the design and testing of
the STS-111 for the installation and operation of such satellite
telecommunications appliqués owned by GTC;
(iv) assist
the Company in arranging demonstrations of the STS-111 for potential customers
introduced by GTC and participate in ongoing discussions with such potential
customers in efforts to market the STS-111;
(v) assist
the Company in exploring and obtaining governmental funding for the development
efforts associated with the STS-111;
(vi)
if applicable, act as the prime contractor for the Company in connection
with governmental funding for the development of the STS-111 and participate in
all discussions and negotiations with governmental funding sources in connection
with same;
(vii)
provide assistance to the Company with respect to the development of
enhancements of electronic systems for autonomous controls for the
STS-111;
(viii)
provide assistance to the Company with respect to the development of
enhancements with respect to telemetry and sensor equipment for use on the
STS-111;
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(ix) assist
with expanding the potential customer base for potential prospective purchases
of the STS-111 with GTC’s current and potential governmental customers and
participate in discussions and negotiations with respect to same;
(x)
evaluate and provide
recommendations with respect to test results for STS-111 tests with particular
emphasis on the feasibility of the use of Appliqués on the STS-111;
(xi)
participate in discussions and negotiations with management and other applicable
personnel of the Company with respect to the foregoing;
(xii) introduce
the Company to Globalstar, Inc. and participate in discussions and negotiations
with respect to the potential certification for use on the Globalstar satellite
network of the satellite telecommunications capability of the
STS-111;
(xiii) assist
the Company in connection with efforts to obtain non-governmental funding for
activities related to the completion of the development of the STS-111
(including, without limitation, the $1,000,000 credit facility arranged by
GTC);
(xiv) introduce
the Company to qualified and experienced technical consultants and other
personnel to render specialized services to the Company in connection with the
completion of the developmental activities relating to the STS-111;
and
(xv) provide
assistance and services reasonably related to all of the foregoing.
2.2. The
Services Provider shall devote such portion of its time to the performance of
its services under this Agreement as it shall determine is reasonably necessary
to perform such services and discharge its responsibilities under this
Agreement. The Services Provider will, when deemed reasonably necessary by it,
continue to travel to attend demonstrations of the STS-111 (the Company hereby
acknowledging that the Services Provider has heretofore done so, all at its sole
expense). The Company acknowledges and agrees that the Services
Provider will not be rendering services hereunder exclusively to the
Company. The Services Provider will have no liability under this
Agreement, except for any judicially determined gross negligence or intentional
misconduct or wrongdoing by or on its behalf.
2.3 Services
already provided to the Company and which GTC shall continue to provide are set
forth on Schedule 1. Services to be provided are set forth on Schedule
2.
2.4. The
principal contact persons for the Company and the Services Provider for purposes
of this Agreement are set forth below:
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The
Company:
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Xxxxxxxx
Xxxxxxxx, 000 XX 0xx Xxx., Xxxxx 0000, Xxxx Xxxxxxxxxx, Xxxxxxx
00000
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Services
Provider:
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Xxxxx
Xxxxxx, 00 Xxxx Xxxxx Xxxx, Xxxxxxx, Xxx Xxxx
00000
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3.
Term.
3.1.
The term of this Agreement shall commence on April __,
2009 and shall continue in effect until the earlier of the date of completion of
the Service Provider’s services under Section 4(e) hereof or December 31, 2010
(the “Term”).
3.2. Notwithstanding
the provisions of Section 3.1 above, the Company may terminate this Agreement
upon the occurrence of any of the following events:
(a) following
the delivery of notice to the Services Provider by the Company of the
termination of this Agreement for any judicially determined material breach or
default by the Services Provider of any of the Services Provider’s
representations, warranties, obligations or covenants under this Agreement,
provided that, with
respect to any such breach or default which is curable, any such breach or
default is not cured within thirty (30) days after receipt of such notice from
the Company; or
(b) upon
five (5) days notice to the Services Provider in the event of an assignment for
the benefit of the Services Provider’s creditors or a final adjudication of
bankruptcy, insolvency, receivership, or any such similar action against the
Services Provider.
3.3.
Notwithstanding the provisions of Section 3.1 above, the Services Provider
may terminate this Agreement upon the occurrence of any of the following
events:
(a) following
the delivery of notice to the Company by the Services Provider of the
termination of this Agreement for any material breach or default by the Company
of any of its representations, warranties, obligations or covenants under this
Agreement, provided
that, with respect to any such breach or default which is curable, any
such breach or default is not cured within thirty (30) days after receipt of
such notice from the Services Provider; or
(b) upon
five (5) days notice to the Company in the event of an assignment for the
benefit of the Company’s creditors or a final adjudication of bankruptcy,
insolvency, receivership, or any such similar action against the
Company.
4.
Compensation.
4.1. In
consideration of the performance by the Services Provider of the services
provided for under this Agreement during the Term hereof, the Company shall
cause Sanswire to issue and deliver to the Company (or its designee) an
aggregate of 12,500,000 shares of Sanswire’s common stock (the “Shares”). The
Services Provider acknowledges that the Company is not able to provide cash
compensation for the Services Provider’s services hereunder and that it is
prepared to accept the risk inherent in accepting the Shares as compensation for
its past and present services rendered and to be rendered
hereunder:
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(a) an
aggregate of 7,500,000 Shares upon the execution of this Agreement for services
already provided to the Company and which GTC shall continue to provide as set
forth on Schedule 1 and
(b) 833,335
Shares to be issued on the first day of May, 2008 and 833,333 Shares to be
issued on the first day of each of the following five months as compensation for
the Services Provider providing the services as set forth on Schedule
2. These Shares, when issued, will be deemed fully earned and not
subject to any claim or offset.
4.2. The
Services Provider hereby acknowledges that it has such knowledge and experience
in finance, securities, investments, and other business matters so as to be
capable of evaluating the merits and risks receiving the Shares contemplated
hereby. The Services Provider understands that the Shares are
“restricted securities” and have not been registered under the United States
Securities Act of 1933, as amended (the “Act”), or any applicable
state securities law and the Services Provider hereby acknowledges that it is
acquiring the Shares for its own account and not with a view to or for
distributing or reselling the Shares or any part thereof, has no present
intention of distributing any of the Shares and has no arrangement or
understanding with any other persons regarding the distribution of the Shares
(this representation and warranty shall not limit the Services Provider’s right
to sell or transfer the Shares in compliance with applicable securities laws,
rules and regulations).
5. Representations
and Warranties. The Company and the Services Provider hereby
represent and warrant to each other as follows:
5.1.
All action on the part of the
Company and the Services Provider necessary for the authorization, execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby, has been taken and this Agreement constitutes
a valid and legally binding obligation of the Company and the Services Provider,
as applicable, enforceable in accordance with its terms, except as the same may
be limited by bankruptcy, insolvency, reorganization, moratorium, or other laws
affecting generally the enforcement of creditors' rights and by general
principles of equity.
5.2. The
authorization, execution, delivery and performance of this Agreement, and the
consummation of the transactions contemplated hereby, will not result in any
violation or be in conflict with or constitute, with or without the passage of
time and giving of notice, a breach or default under any provision of any
instrument, judgment, order, writ, decree or agreement to which the Company or
the Services Provider, as applicable, is a party or by which either of them is
bound.
5.3. There
is no action, suit, proceeding, or investigation pending, or to the knowledge of
the Company or the Services Provider, as applicable, currently threatened
against the Company or the Services Provider, as applicable, in any way relating
to the validity of this Agreement or the right of the Company or the Services
Provider, as applicable, to enter into or to perform under this Agreement or
consummate the transactions contemplated hereby.
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6.
Current
Filings. The Company agrees that until the later of the date
on which all of the Shares to be issued hereunder have been sold or one year
from the date of the last issuance of such Shares, it will keep current in
filing all reports and materials required to be filed with the Commission in
order to permit the Services Provider to sell the Shares under Rule
144.
7.
Confidentiality
and Non-Disclosure Covenant. During the Term of this
Agreement, both parties hereto hereby acknowledge that they may obtain and be
entrusted with nonpublic material confidential and proprietary information of
the other (for purposes of this Section 7, this shall include GTC), such
information to include information with respect to their present and proposed
business and operations. To the extent that the Company and/or the Services
Provider desire any such information to be deemed “Confidential Information”
hereunder, they will xxxx such documentation appropriately (or confirm oral
disclosures of any such information, in writing, indicating that such
information is to be considered Confidential Information hereunder). All of such
information that may be obtained by the parties hereunder shall, for purposes
hereof, be referred to herein as “Confidential
Information”. The Services Provider and the Company hereby
agree that, unless the Confidential Information becomes publicly known without
any improper act of either of such parties, as applicable, they will not
directly or indirectly during the Term of this Agreement, use for their own
benefit or in any manner whatsoever, divulge to any person, firm, corporation or
other entity or otherwise publish or disclose any Confidential Information
(except as necessary in connection with the performance of the Services
Provider's services under this Agreement or to comply with applicable laws or
regulations. The confidentiality and use restrictions contained in
this Section 7 shall survive for a period of twenty-four (24) months following
the expiration or termination of this Agreement. Notwithstanding the
foregoing, neither of the parties hereto shall be in breach of this covenant
with respect to any disclosure of any Confidential Information by them to any of
their respective officers, directors, shareholders, representatives or advisors
(collectively, the “Representatives”) who receive
such information on a need-to-know basis, or any disclosure of such information
which is or becomes available in the public domain or is required as a result of
any legal process served upon them in any judicial or administrative proceeding
(provided that
the applicable party provides prompt notice of any such process served upon it
in order to enable the disclosing party to timely contest the same, at its
expense), or was obtained by the applicable party from a third party without
such third party's breach of agreement or obligation of trust. Each
party will cause their respective Representatives to whom Confidential
Information is provided, to comply with the provisions of this Section and will
be responsible for any breach of such provisions by any of such
persons.
8.
Non-Solicitation.
8.1.
The Services Provider will not, at any time during or for twenty-four (24)
months after the Term hereof, directly or indirectly, (i) solicit the business
of any person or entity with whom or which the Company has a contractual
relationship, for purposes of engaging in activities which are the same as or
substantially similar to the activities of the Company , or (ii) solicit,
interfere with, or endeavor either to cause any employee, agent or consultant,
of the Company to leave his or her employment with the Company, or
terminate its relationship with the Company, or (iii) induce or attempt to
induce any such employee, agent or consultant, to breach any employment
agreement or other agreement or arrangement that such employee, agent or
consultant may have with the Company .
-6-
8.2. The
Services Provider hereby acknowledges that the provisions of this Section 8 are
necessary for the protection of the Company's business and goodwill and are
considered by the Services Provider to be fair and reasonable. The
Services Provider further acknowledges that it has fully and carefully reviewed,
considered and understands all of the restrictions imposed upon it under this
Section 8. Accordingly, the Services Provider hereby acknowledges and
agrees that in the event of any actual or threatened breach by it of the
provisions of this Section 8, there will be no adequate remedy at law for any
such breach or threatened breach and that any such breach or threatened breach
may cause irreparable harm to the Company and, therefore, the Services Provider
hereby consents in any such instance to the granting of injunctive or other
equitable relief to the Company, as a non-exclusive remedy therefor, in any
court of competent jurisdiction, without the necessity of showing any actual
damage or that monetary damages would not provide an adequate remedy at a law or
posting a bond therefor.
9.
Intellectual
Property Rights. Each of the parties hereto shall retain the
rights to all of their respective trade secrets and intellectual property and
both parties disclaim all warranties, either express or implied, as to the
efficiency, reliability, or safety of any such intellectual
property. To the extent that either party develops any intellectual
property pursuant to this Agreement, the party developing such intellectual
property shall retain all ownership rights thereto. Consistent with
the foregoing, the Company will retain all right, title and interest
in all intellectual property relating to the STS-111 and the Services Provider
and GTC will retain all right, title and interest in all intellectual property
relating to the Appliqués.
10. Damage
Limitations. Notwithstanding anything to the contrary in this Agreement,
in no event shall ether party hereto be liable to the other party for lost
profits or lost business opportunities, or for any indirect, special, punitive
or consequential damages arising out of or in connection with this
Agreement.
11.
Publicity;
Press Releases. The parties hereto may, by mutual written consent,
agree to issue a joint press release describing the collaboration of the
parties under this Agreement. The parties shall also consult regularly during
the Term of the Agreement and issue, as and when they deem appropriate and
subject to their mutual written consent, such further press releases and/or
other publicity materials as may be appropriate. For the avoidance of
doubt, no press release, promotional or marketing materials or other written
materials utilized or issued by the Company shall refer to any
Services Provider or GTC customer or GTC project or transaction which is not the
subject of this Agreement in the absence of GTC’s written consent, which consent
will not be unreasonably withheld.
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12. Force
Majeure. Neither the Services Provider nor the Company shall
be responsible for any delay or failure in fulfilling their obligations under
this Agreement as a consequence of any act of God, labor dispute, war,
insurrection, riot, nuclear disaster, fire, earthquake or other circumstance
beyond the reasonable control of either of such parties.
13. Miscellaneous.
13.1. This
Agreement constitutes the sole and entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior agreements,
representations, warranties, arrangements and understandings, whether oral or
written, express or implied, between the parties hereto with respect to the
subject matter hereof. This Agreement may not be changed or modified except by
an instrument in writing signed by the party to be bound thereby.
13.2. All
notices, consents, requests, demands and other communications required or
permitted to be given under this Agreement shall be in writing and delivered
personally, receipt acknowledged, or mailed by registered or certified mail (or
international equivalent), postage prepaid, return receipt requested, addressed
to the parties hereto as follows (or to such other address and/or to such other
persons as either of the parties hereto shall specify by notice given in
accordance with this provision):
(a) If
to the Company:
000 XX 0xx Xxx., Xxxxx
0000
Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxxx
Xxxxxxxx, President
(b) If
to the Services Provider:
Global
Telesat Services Corp.
0 Xxx
Xxxxxxxx Xxxxxx,
Xxxxxxxx
Xxxxxx,
Xxxxxxxx
Xxxxx,
Xxxxxx,
XX0 0XX
Attn: Xxxxx
Xxxxxx, President
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
00 Xxxx
Xxxxx Xxxx
Xxxxxxx,
Xxx Xxxx 00000
-8-
Except as otherwise expressly provided
elsewhere in this Agreement, all such notices, consents, requests, demands and
other communications shall be deemed given when personally delivered as
aforesaid, or, if mailed as aforesaid, on the earlier of (i) the date of receipt
or rejection by the addressee, or (ii) the third business day after the date of
mailing thereof, except for a notice of a change of address which shall be
effective only upon receipt.
13.3. Neither
party hereto may assign this Agreement or their respective rights, benefits or
obligations hereunder without the written consent of the other party
hereto.
13.4. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. Nothing
contained herein is intended to confer upon any person or entity, other than the
parties hereto and their respective successors, or permitted assigns, any
rights, benefits, obligations, remedies or liabilities under or by reason of
this Agreement.
13.5. No
waiver of this Agreement shall be effective unless in writing and signed by the
party to be bound thereby. The waiver by either party hereto of a
breach of any provision of this Agreement, or of any representation, warranty,
covenant or obligation in this Agreement by the other party hereto shall not be
construed as a waiver of any subsequent breach or of any other provision,
representation, warranty, covenant or obligation of such other party, unless the
instrument of waiver expressly so provides.
13.6. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Florida, United States of America, with respect to contracts made and
to be fully performed therein, without regard to the conflicts of laws
principles thereof.
13.7. The
parties hereto hereby agree that, at any time and from time to time during the
Term hereof, upon the reasonable request of the other party hereto, they shall
do, execute, acknowledge and deliver, or cause to be done, executed,
acknowledged and delivered, such further acts, deeds, assignments, transfers,
conveyances and assurances as may be reasonably required to more effectively
consummate this Agreement and the transactions contemplated thereby or to
confirm or otherwise effectuate the provisions of this Agreement.
13.8. If
any term or provision of this Agreement, or the application thereof to any
person or circumstance, is finally determined by a court of competent
jurisdiction to be illegal, invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision to persons or
circumstances other than those as to which it is held illegal, invalid or
unenforceable, shall not be affected thereby and each other term and provision
of this Agreement shall remain valid and shall be enforced to the fullest extent
permitted hereunder and by law.
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13.9.
The Section headings contained in this Agreement are for the purpose of
convenience only and are not intended to define or limit the contents of said
Sections.
13.10.
Each of the parties hereto is performing its responsibilities under this
Agreement as an independent contractor and nothing in this Agreement is
intended, nor shall be construed, to create an employer/employee,
master/servant, principal/agent, partnership or joint venture relationship
between the parties.
13.11.
The provisions of Sections 6, 7, 8, 9 and 11 shall survive the expiration or
earlier termination of this Agreement.
13.12.
This Agreement may be executed in one or more counterparts, each of which, when
executed and delivered, shall be deemed an original, but all of which when taken
together, shall constitute one and the same instrument, and this Agreement may
be completed by facsimile transmission, which transmission will be deemed to be
an original and considered fully legal and binding on all of the signatories
hereto.
13.13.
Unless the context of this Agreement clearly requires otherwise, the plural
includes the singular, the singular includes the plural, the part includes the
whole, "including" is not limiting, and "or" has the inclusive meaning of the
phrase "and/or". The words "hereof", "herein", "hereby", "hereunder"
and other similar terms in this Agreement refer to this Agreement as a whole and
not exclusively to any particular provision of this Agreement.
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the year and date first above
written.
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WITNESS:
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GLOBAL
TELESAT SERVICES CORP.
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By:
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Xxxxx
Xxxxxx, President and
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Chief
Executive Officer
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Print
Name
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WITNESS:
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By:
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Xxxxxxxx
Xxxxxxxx, President
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Print
Name
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SCHEDULE
1
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(i)
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assist
the Company in developing operational mission profiles for the
STS-111;
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(ii)
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assist
the Company in arranging demonstrations of the Sanswire products and
services for potential customers introduced by GTC and participate in
ongoing discussions with such potential customers in efforts to market the
products and services;
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|
(iii)
|
assist
the Company in exploring and obtaining funding for the development efforts
associated with the STS-111;
|
|
(iv)
|
provide
assistance to the Company with respect to the development of enhancements
of electronic systems for autonomous controls for the Sanswire
products;
|
|
(v)
|
provide
assistance to the Company with respect to the development of enhancements
with respect to telemetry and sensor equipment for use on the Sanswire
products;
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(vi)
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participate
in discussions and negotiations with management and other applicable
personnel of the Company and
Sanswire;
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(vii)
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introduce
the Company and Sanswire to Globalstar, Inc. and participate in
discussions and negotiations with respect to the potential certification
for use on the Globalstar satellite network of the satellite
telecommunications capability of the
STS-111;
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(viii)
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assist
the Company and Sanswire in connection with efforts to obtain
non-governmental funding for activities related to the completion of the
development of the STS-111 (including, without limitation, the $1,000,000
credit facility arranged by GTC);
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(ix)
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introduce
the Company to qualified and experienced technical consultants and other
personnel to render specialized services to the Company in connection with
the completion of the developmental activities relating to the
STS-111.
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SCHEDULE
2
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(i)
|
provide
the Company with access to one or more mobile Appliqués which are owned by
GTC and have data transmission satellite telecommunications
capability;
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(ii)
|
provide
the Company with technical assistance with respect to the design and
testing of the STS-111 for the installation and operation of such
satellite telecommunications appliqués owned by
GTC;
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(iii)
|
assist
the Company in arranging demonstrations of the STS-111 for potential
customers introduced by GTC and participate in ongoing discussions with
such potential customers in efforts to market the
STS-111;
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(iv)
|
if
applicable, act as the prime contractor for the Company in connection with
governmental funding for the development of the STS-111 and participate in
all discussions and negotiations with governmental funding sources in
connection with same;
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(v)
|
evaluate
and provide recommendations with respect to test results for STS-111 tests
with particular emphasis on the feasibility of the use of Appliqués on the
STS-111;
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(vi)
|
assist
with expanding the potential customer base for potential prospective
purchases of the STS-111 with GTC’s current and potential governmental
customers and participate in discussions and negotiations with respect to
same;
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(vii)
|
provide
assistance to the Company with respect to the development of enhancements
of electronic systems for autonomous controls for the Sanswire
products;
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(viii)
|
provide
assistance to the Company with respect to the development of enhancements
with respect to telemetry and sensor equipment for use on the
STS-111.
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