TERMINATION AND TRANSFER AGREEMENT
This
agreement
dated
for reference November 1, 2004, is among GlobeTrac
Inc.,
Global
Axxess Corporation Limited,
and
Globetrac
Limited,
all
with an executive address at 0000 Xxxxxxxx Xxxxxx, 0xx
Xxxxx,
Xxxxxxxxx, X.X., X0X 0X0, and
fax (000) 000-0000;
and
WebTech
Wireless Inc.
and
WebTech
Wireless International,
both of
#000 - 0000 Xxxxxx Xxx, Xxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0, and
fax (000) 000-0000;
Whereas:
| A. |
Global
Axxess Corporation and both WebTech companies entered into a master
distributorship agreement on June 19, 2002, and have conducted their
business relationship on the premises set out in the
agreement.
|
| B. |
Global
Axxess decided to wind down its operations effective November 1,
2004.
|
| C. |
The
parties have agreed to cancel the master distributorship agreement
and to
restructure their ongoing business relationship as outlined in a letter
agreement dated November 26, 2004.
|
for
valuable consideration,
the
receipt and sufficiency of which are acknowledged, the parties agree
that:
INTERPRETATION
| 1. |
In
this agreement:
|
| a. |
“Claim”
includes any claim, action or cause of action, proceeding, assessment,
loss, judgment, amount paid in settlement of actions or claims, liability
(whether accrued, actual, contingent or otherwise), costs, deficiency,
damage, expense (including, but not limited to, actual legal fees and
disbursements) and demand whatsoever (including any liabilities, claims
and demands for income, sales, excise or other taxes) in connection
with
any litigation, investigation, hearing or other proceeding of any kind
and
nature.
|
| b. |
“Customer”
means a person listed in Schedule “A”.
|
| c. |
“Effective
Date” means November 1, 2004.
|
| d. |
“Global
Ireland” means Global Axxess Corporation Limited, a corporation formed
under the laws of Republic of Ireland.
|
| e. |
“GlobeTrac”
means GlobeTrac Delaware, Global Ireland, and Globetrac UK
together.
|
| f. |
“GlobeTrac
Delaware” means GlobeTrac Inc., a corporation formed under the laws of
Delaware.
|
| g. |
“Globetrac
UK” means Globetrac Limited, a company formed under the laws of
England.
|
| h. |
“MDA”
means the master distributorship agreement dated June 19, 2002 among
Global Ireland and WebTech.
|
| i. |
“Product”
means any product or service offered by
WebTech.
|
| j. |
“Qualified
Customer” means a Customer who has ordered at least one Product before
November 26, 2005.
|
| k. |
“Qualified
Sales” means all of WebTech’s invoiced sales of Product to Qualified
Customers, whether sold by WebTech or by a licensee, affiliate or agent
of
WebTech.
|
| l. |
“Receivables”
mean all of GlobeTrac’s outstanding accounts receivable from all of its
customers as of October 31, 2004.
|
| m. |
“Retainer”
means a service retainer of £5,000 with HQ Executive Offices, consisting
of £1,300 for two months rent for the UK Office and £3,700 as a refund due
to Globetrac UK from Globetrac UK’s move to a smaller office in November
2004.
|
| n. |
“Royalty”
means 6% of gross Qualified Sales.
|
| o. |
“UK
Office” means the office leased by Globetrac UK from HQ Executive Offices
located at Xxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx , Xxxxxxxxx, Xxxxxxx
XX0
0XX.
|
| p. |
“WebTech”
means WebTech Alberta and WebTech Barbados
together.
|
| q. |
“WebTech
Alberta” means WebTech Wireless Inc., a corporation formed under the laws
of Alberta.
|
| r. |
“WebTech
Barbados” means WebTech Wireless International, a company formed under the
laws of Barbados.
|
TERMINATION
Termination
of MDA
| 2. |
The
MDA is terminated as of the Effective Date and this agreement governs
the
relations between the parties unless otherwise stated in this agreement;
however, the non-disclosure and other provisions of the MDA that are
intended to survive the termination of the MDA, survive the MDA in
accordance with its terms, including paragraphs 38 and 62 to 65 inclusive.
For the interpretation of paragraph 65, the date of WebTech’s last
shipment to GlobeTrac (Distributor in the MDA) was August 4,
2004.
|
TRANSFER
Transfer
| 3. |
Globetrac
UK will transfer control of the Customers to WebTech and will give
WebTech
full access to the Customer accounts and Receivables, all as of the
Effective Date.
|
| 4. |
GlobeTrac
will assist in the change of control in order not to disrupt the
continuation of services to the Customers and, upon receipt of a written
request from WebTech, will assist in the transfer of supplier accounts
in
order to support the Customers using WebTech’s portal (as defined in the
MDA).
|
Inquiries
and Problems
| 5. |
WebTech
is entirely responsible for all technical inquiries and all warranties,
problems and costs pertaining to any Product that Globetrac sold to
a
Customer while the MDA was effective, including the reconfiguration,
installation, and warranty problems of any faulty Products, all as
of the
Effective Date.
|
Payment
of Employees
| 6. |
GlobeTrac
will terminate all of its employees and will pay their wages and
benefits.
|
| 7. |
WebTech
will, by the end of November 2004, reimburse GlobeTrac directly for
the
following employees’ wages and benefits:
|
| a. |
Xxxxxx
Xxxxxxx’x wages for the pay periods ending on November 30, 2004, and
December 6, 2004, which include 5.5 vacation days;
and
|
| b. |
Xxxxxxx
Xxxxx’x wages for the pay periods ending on November 30, 2004, and
December 6, 2004, which include five vacation
days.
|
| 8. |
GlobeTrac
acknowledges that WebTech is not responsible for any other severance
or
employment-related liability and that GlobeTrac alone is responsible
for
paying wages or salaries to Xxxxx Xxxxxx, Xxxxx Xxxxx and Xxxxx
Xxxxxxxx.
|
Accounts
Payable
| 9. |
On
the Effective Date, WebTech will assume liability for and pay all of
the
following of GlobeTrac’s outstanding accounts
payable:
|
| a. |
all
accounts payable to Xxxxx Xxxxxxxx, except invoice #GTRC0021/04 in
the
amount of £1,015.29, which GlobeTrac will
pay;
|
| b. |
all
outstanding advertising invoices payable to Visible, either by paying
Visible directly or by reimbursing GlobeTrac if GlobeTrac pays Visible;
and
|
| c. |
HQ
Executive Offices’ invoice dated October 2004, which includes rent for
November 2004, and any cost associated with HQ’s invoice dated November 1,
2004.
|
UK
Office Lease
| 10. |
Globetrac
UK will, by November 30, 2004, give to HQ Executive Offices the required
two months’ notice to vacate the UK Office, and authorize HQ Executive
Offices to transfer the refundable portion of the Retainer to WebTech
and
apply the rent portion to rent for the notice period (December 1, 2004
to
January 31, 2005).
|
| 11. |
WebTech
may, at its own cost, use the UK Office during the notice period, and
contract directly with HQ Executive Offices for the lease of the UK
Office
or other offices after the end of the notice period, provided that
it
incurs no costs for the account of Globetrac UK from the Effective
Date.
|
Write-Offs
| 12. |
WebTech
will write-off all of its outstanding accounts receivable from GlobeTrac
in consideration of GlobeTrac’s delivering to WebTech all of GlobeTrac’s
Product inventory, whether in the possession of GlobeTrac or WebTech,
and
any Customer goodwill, all as of the Effective
Date.
|
Collection
of Receivables
| 13. |
GlobeTrac
can collect the Receivables for its own account. WebTech will assist
GlobeTrac in collecting the Receivables.
|
| 14. |
If
GlobeTrac encounters difficulty in collecting a Receivable from any
Customer, WebTech will not provide Products to that Customer until
the
Receivable is paid in full, but only if GlobeTrac has delivered to
WebTech
both written evidence that the Receivable is due and payable and written
instructions to not provide the Products or services to the
Customer.
|
| 15. |
If
a Customer refuses to pay a Receivable as a result of a faulty Product
then WebTech will, at its own cost, honor the Product warranty and
repair
or replace the Product in accordance with the Product warranty, all
without affecting the amount of the Receivable, which GlobeTrac can
still
collect from the Customer for its own
account.
|
ROYALTY
| 16. |
The
Royalty is payable on all Qualified Sales of Products during the eleven
years beginning November 1, 2004 and ending on October 31,
2015.
|
| 17. |
WebTech
will pay the Royalty to GlobeTrac by the end of the 30th
day following the end of each of WebTech’s fiscal quarters in which
WebTech receives the Qualified Customers’ payments for Products on which
the Royalty is calculated.
|
| 18. |
The
Royalty is not subject to any maximum
cap.
|
| 19. |
WebTech
will deliver to GlobeTrac with each Royalty payment a written
confirmation, signed by its chief financial officer or by the person
performing the same or similar duties, that all Qualified Sales have
been
included in the calculation of the
Royalty.
|
| 20. |
WebTech’s
calculation of Royalty payments, as confirmed by its CFO, is deemed
correct and is binding on GlobeTrac unless GlobeTrac disputes its
correctness in writing within twelve months of its receipt of the CFO’s
written confirmation. WebTech will make available to GlobeTrac at
GlobeTrac’s request all of its books and records that pertain to the
Customers. GlobeTrac may inspect the books and records at WebTech’s
offices during WebTech’s business hours no more than once in each of
WebTech’s fiscal quarters. GlobeTrac, at its cost, may appoint an
independent auditor to audit WebTech’s records of all sales to Customers
no more than once a year.
|
REPRESENTATIONS
AND WARRANTIES
GlobeTrac
| 21. |
GlobeTrac
Delaware, Global Ireland and Globetrac UK each represents and warrants
that:
|
| a. |
It
is a corporation formed and in good standing under the laws of its
incorporating jurisdiction.
|
| b. |
It
has the legal capacity and authority to make and perform this
agreement.
|
| c. |
It
has taken the necessary corporate actions to authorize the signing
of this
agreement and the performance of its
terms.
|
| d. |
It
has given all of its employees the notice of termination required by
law
in the jurisdiction of the employment as required by this
agreement.
|
| 22. |
The
representations and warranties contained in Section are for the exclusive
benefit of WebTech, and WebTech may waive a breach of any one or more
of
them in whole or in part at any time without prejudice to its rights
in
respect of any other breach of the same or any other representation
or
warranty. The representations and warranties contained in Section survive
the signing of this agreement.
|
WebTech
| 23. |
WebTech
Alberta and WebTech Barbados each represents and warrants
that:
|
| a. |
It
is a company formed and in good standing under the laws of its
incorporating jurisdiction.
|
| b. |
It
has the legal capacity and authority to make and perform this
agreement.
|
| c. |
It
has taken the necessary corporate actions to authorize the signing
of this
agreement and the performance of its
terms.
|
| 24. |
The
representations and warranties contained in Section are for the exclusive
benefit of GlobeTrac, and GlobeTrac may waive a breach of any one or
more
of them in whole or in part at any time without prejudice to its rights
in
respect of any other breach of the same or any other representation
or
warranty. The representations and warranties contained in Section survive
the signing of this agreement.
|
INDEMNIFICATION
| 25. |
WebTech
indemnifies against and saves harmless GlobeTrac from all Claims imposed
on or incurred by or asserted against GlobeTrac in connection with
or in
any way related to or arising out of
|
| a. |
any
misrepresentation, breach of warranty or non-fulfilment of any covenant
by
WebTech under this agreement or any other agreement, certificate or
other
instrument furnished or to be furnished to GlobeTrac under this agreement,
and
|
| b. |
any
Claim, related to GlobeTrac’s sales of Products, from a Customer or any
other person who bought a Product from
GlobeTrac.
|
| 26. |
If
any indemnified Claim is brought against GlobeTrac, GlobeTrac will
notify
WebTech in writing, and WebTech will assume the defence of the Claim,
including the retaining of counsel and the payment of all expenses.
GlobeTrac may retain separate counsel for any Claim and participate
in the
defence, with the fees and expenses of GlobeTrac’s separate counsel also
at WebTech’s expense. GlobeTrac’s failure to notify WebTech of a Claim
does not relieve WebTech from these obligations unless the failure
actually prejudices the defence of the
Claim.
|
| 27. |
WebTech
will not settle or compromise or consent to the entry of any judgement
in
any Claim without first obtaining the written consent of GlobeTrac,
which
consent will not be unreasonably withheld. Such a settlement, compromise
or consent must include an unconditional release of WebTech and GlobeTrac
from all liability arising out of the
Claim.
|
| 28. |
The
indemnity and contribution obligations of WebTech are in addition to
and
not in substitution for any liability that WebTech or any other person
may
otherwise have (whether arising under contract or at law or otherwise),
extend upon the same terms and conditions to all indemnified parties,
and
are binding upon and enure to the benefit of the respective successors,
assigns, heirs and personal representatives of each of WebTech and
GlobeTrac.
|
RELEASE
| 29. |
WebTech,
in consideration for the foregoing indemnification, and GlobeTrac,
in
consideration for terminating the MDA, for each of them and for their
respective executors, predecessors, affiliates, successors and assigns,
will execute the mutual release attached to this agreement as Schedule
“B”, with effect as of the Effective
Date.
|
OTHER
PROVISIONS
| 30. |
WebTech
acknowledges that this agreement may contain terms and conditions onerous
to them. WebTech expressly acknowledges that GlobeTrac has given them
adequate time to review this agreement and to seek and obtain independent
legal advice, and WebTech represents to GlobeTrac that they have in
fact
sought and obtained independent legal advice and are satisfied with
all
the terms and conditions of this
agreement.
|
| 31. |
Each
party will take or cause to be taken all proper steps, actions, and
corporate proceedings to enable it to fulfill its obligations under
this
agreement, and will sign and deliver any document and other instrument
that is required to be signed and delivered to the other parties by
this
agreement.
|
| 32. |
Time
is of the essence of this agreement.
|
| 33. |
This
agreement is governed by the laws of British Columbia and must be
litigated in the courts of British
Columbia.
|
| 34. |
Any
notice that must be given or delivered under this agreement must be
in
writing and delivered by hand to the address or transmitted by fax
to the
fax number given for the party on page 1 and is deemed to have been
received when it is delivered by hand or transmitted by fax unless
the
delivery or transmission is made after 4:00 p.m. or on a non-business
day
where it is received, in which case it is deemed to have been delivered
or
transmitted on the next business day. Any payments of money must be
delivered by hand or wired as instructed in writing by the receiving
party. Any delivery other than a written notice or money must be made
by
hand at the receiving party’s address.
|
| 35. |
This
agreement constitutes the entire agreement between the parties and
supersedes all previous communications, representations and agreements,
whether oral or written, between the parties with respect to the subject
matter of this agreement.
|
| 36. |
WebTech
may not assign this agreement or any part of it to another party without
GlobeTrac’s written consent.
|
| 37. |
Any
amendment of this agreement must be in writing and signed by the
parties.
|
| 38. |
This
agreement enures to the benefit of and binds the parties and their
respective successors, heirs and permitted
assignees.
|
| 39. |
No
failure or delay of any party in exercising any right under this agreement
operates as a waiver of the right. The parties’ rights under this
agreement are cumulative and do not preclude any party from relying
on or
enforcing any legal or equitable right or
remedy.
|
| 40. |
If
any provision of this agreement is or becomes invalid, illegal or
unenforceable in any respect in any jurisdiction then such provision
will
be severed in that jurisdiction. The remaining provisions of this
agreement will continue to be valid, legal and enforceable. The severed
provision will also continue to be valid, legal and enforceable in
all
other jurisdictions where the validity, legality and enforceability
of
such severed provisions is not affected or
impaired.
|
| 41. |
The
parties acknowledge that they have each entered into this agreement
relying on the representations, warranties, covenants and agreements
of
the others and other terms and conditions of this agreement and that
no
information which is now known, which may become known, or which could
upon investigation have become known to the other parties or any of
their
present or future officers, directors or professional advisors will
in any
way limit or extinguish any rights any of them may have against the
others.
|
| 42. |
The
representations, warranties, indemnities, covenants and agreements
made by
the parties each to the other in or pursuant to this agreement will
survive the Closing of the transaction and will accrue for the benefit
of
the respective parties notwithstanding such Closing, and regardless
of any
investigation by or on behalf of the respective parties with respect
thereto will continue in full force and effect for the benefit of the
respective parties.
|
| 43. |
This
agreement may be signed in counterparts and delivered to the parties
by
fax, and the counterparts together are deemed to be one original
document.
|
The
parties’
signatures below are evidence of their agreement.
| GlobeTrac
Inc.
Per:
___________________________________
Authorized
signatory
Print
name: _______________________________
Signed:
________________________,
2005
|
WebTech Wireless
Inc.
Per:
___________________________________
Authorized
signatory
Print
name: _______________________________
Signed:
________________________,
2005
|
|
Global Axxess Corporation
Limited
Per:
___________________________________
Authorized
signatory
Print
name: _______________________________
Signed:
________________________,
2005
|
WebTech Wireless
International
Per:
___________________________________
Authorized
signatory
Print
name: _______________________________
Signed:
________________________,
2005
|
|
Globetrac Limited
Per:
___________________________________
Authorized
signatory
Print
name: _______________________________
Signed:
________________________,
2005
|
Schedule
“A”
To
the
Termination and Transfer Agreement among
GlobeTrac
Inc., Global Axxess Corporation Limited and Globetrac Limited
and
WebTech Wireless Inc. and WebTech Wireless International
dated
for
reference November 1, 2004
CUSTOMERS
See
attached ten-page list.
Schedule
“B”
To
the
Termination and Transfer Agreement among
GlobeTrac
Inc., Global Axxess Corporation Limited and Globetrac Limited
and
WebTech Wireless Inc. and WebTech Wireless International
dated
for
reference November 1, 2004
MUTUAL
RELEASEThe
parties to this mutual release
are the
undersigned Global Axxess Corporation Limited, Globetrac Inc. and Globetrac
Limited (together “GlobeTrac”),
and
WebTech Wireless Inc. and WebTech Wireless International (together “WebTech”).
For
good
and valuable consideration
as set
out in the Termination and Transfer Agreement to which this mutual release
is
attached as Schedule “B” (the “Termination Agreement”), the receipt and
sufficiency of which the parties acknowledge, GlobeTrac and WebTech (each a
“party”), each party for itself, its executors, predecessors, affiliates,
successors and assigns hereby releases and forever discharges the other party
and any associated, affiliated, predecessor, successor or parent corporations,
and their present, past and former directors, officers, shareholders, agents
and
employees and each of their successors, heirs, executors, administrators and
assigns from all claims, actions, liabilities, demands, suits, causes of action
and debts whatsoever (“claims”) that each party has or may hereafter have
against the other arising in any manner whatsoever out of an cause or matter
up
to the date of this release, excepting any claims by one party against the
other
for any breach of the Termination Agreement.
No
Assignment.
Each of
the undersigned represents and warrants that it has not assigned to any person,
firm or corporation any of the claims from which they release the other or
in
respect of which they agree not to take any action.
Understanding.
Each
party declares that it has not been influenced by any representations or
statements made by or on behalf of the other; it has had sufficient time and
opportunity to seek and obtain independent legal advice with respect to this
release; it has read this release, understands all of its terms and conditions
and is executing it, with full knowledge of its significance; and it will
execute any other documents, agreements and assurances as the other may from
time to time reasonably require to give effect to the intent and purpose of
this
release.
The
provisions
of this
mutual release enure to the benefit of the parties, their successors and
assigns, and is binding upon their heirs, administrators and legal, personal
representatives. This release is governed by the laws of the Province of British
Columbia.
This
release
is
effective as of November 1, 2004.
|
Per:
_____________________________
|
Per:
_____________________________
WebTech
Wireless Inc.
|
|
Per:
_____________________________
Globetrac
Limited
|
Per:
_____________________________
WebTech
Wireless International
|
|
Per: _____________________________
Global Axxess Corporation
Limited
|
