Consulting Agreement
This Agreement is made on the ___ day of February 2007 by and between GlobeTel
Communications Corporation, a Delaware Corporation, a publicly traded company
whose common stock trades under the symbol GTEM, GlobeTel Wireless, Corp., a
Florida corporation ("GlobeTel Wireless"), which is a wholly owned subsidiary of
GTEM (GlobeTel Wireless and GlobeTel Communications Corporation are referred to
herein as "GlobeTel"), and Xxxxxx Xxxxxxxx, an individual (referred to herein as
"Xxxxxxxx").
Recitals
Whereas, GlobeTel and Xxxxxxxx wish to redefine the relationship and define
rights, compensation and property in a new relationship. Xxxxxxxx will become a
consultant for GlobeTel subject to the terms and conditions of this Consulting
Agreement. Xxxxxxxx will be free to pursue his own development and customers in
his own business while serving as a Consultant to GlobeTel Wireless, subject to
the terms and conditions set forth below.
Now, therefore, in consideration of the mutual covenants contained in this
Agreement, the parties agree to with the following terms and conditions:
Recitals And Compromise
The above stated recitals true and correct and made a part hereof.
Consideration To Xxxxxxxx
a. Office Supplies and Equipment. The title and ownership of any office
supplies and equipment set forth on Exhibit B hereof, and which is
located at 0000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxx,
shall be transferred to Xxxxxxxx upon execution hereof. Full title
of any property or asset on Exhibit B and transferred to Xxxxxxxx
under this agreement shall be transferred to and vest in Xxxxxxxx
upon execution hereof and shall be taken free and clear of any
liens, debts, obligations or encumbrances on the date of execution
of this Agreement, and Xxxxxxxx shall then be given immediate
possession of the foregoing.
b. Intellectual Property. Any Technology or Intellectual Property
("Intellectual Property") developed by Xxxxxxxx after the execution
of this agreement will be the sole property of Xxxxxxxx
(Intellectual Property shall include all trademarks, service marks,
trade names, together with all goodwill, registrations and
applications related to the foregoing ,patents, designs, design
registrations or applications, works of authorship, trade secrets
and other confidential information, know how, proprietary processes,
formulae, algorithms, models, methodologies, computer software
programs or applications, databases, schematics, designs and
tangible or intangible proprietary information or material
inventions and discoveries, whether patentable or not, patents,
registrations, invention disclosures and applications, confidential
information, know how, processes, business methods, formulae,
drawings, prototypes, models, designs, customer lists, computer
programs, source code, and executable code, whether embodied in
software, architecture, documentation, designs, files, records,
databases, and data, inventions (whether or not patentable),
discoveries, improvements, technology, and proprietary and
confidential information.) If GlobeTel engages Xxxxxxxx to develop
any technology, the Intellectual Property paid for by GlobeTel shall
be the exclusive property of GlobeTel. This Agreement is not a
license to any Intellectual Property currently owned or licensed by
GlobeTel (except as set forth in subpart "c" below), including but
not limited to the assets purchased from HotZone Wireless LLC,
pursuant to that certain Asset Purchase Agreement, dated June 2,
2005. Any subsequent development of Intellectual Property by
Xxxxxxxx shall not be a derivative of nor a modification of the
Intellectual Property owned by GlobeTel. It is acknowledged that
Xxxxxxxx developed or is developing certain Intellectual Property
currently and that such development may have taken place while
Xxxxxxxx was employed by GlobeTel. Globetel does not claim any
ownership of this Intellectual Property that was developed
independently of the GlobeTel Intellectual Property on Xxxxxxxx'x
own time and at Xxxxxxxx'x own expense. The foregoing shall not
preclude Xxxxxxxx from acquiring equipment or services from the same
third-party suppliers as GlobeTel.
[***] Denotes information for which confidential treatment has been requested
Page 1 of 6
_______________________________
Xxxxxx Xxxxxxxx, Individually
_______________________________ __________________________
Globetel Communications, Corp. Globetel Wireless, Corp.
c. Licenses. GlobeTel grants Xxxxxxxx a license for the licenses and
all rights it holds with [***], Inc. and with [***] pursuant to the
assignable license agreements attached hereto as Exhibits C and D,
for a period of ninety nine (99) years, or for as long as GlobeTel
maintains the license. In connection herewith, Globetel will attempt
to obtain, within ten days after execution of this Agreement, a
consent of the foregoing assignments from Wavesat, Inc. and with
TimeSys Corporation. Xxxxxxxx understands that the consent is
granted by [***] and [***] and is not under the control of GlobeTel.
d. Lab Equipment. By permission of GlobeTel, which may not be
unreasonably withheld, Xxxxxxxx shall have use of all lab equipment
and field equipment that GlobeTel currently owns which is currently
set forth as Exhibit E and which GlobeTel agrees to maintain in good
working order during the term of this Agreement.
Term
GlobeTel hereby engages the non-exclusive services of Xxxxxxxx for a period of
one (1) year beginning from the execution of this agreement and terminating 365
days thereafter ("the Term"), in exchange for payment of $45,000 per calendar
month payable in two installments of equal parts on the 15th and the 28th of
each month beginning the 28th of February. At the end of the Term, either party
may terminate the relationship, or it may be extended subject to such
modifications as may be agreed in writing by both parties.
Future Services Of Xxxxxxxx
Xxxxxxxx shall provide or cause the services, set forth below, to be provided to
GlobeTel. The services may be provided by Xxxxxxxx directly or by his direct
employees, and may be provided by a corporate or other entity or assign selected
by Xxxxxxxx by mutual agreement of the parties. If GlobeTel fails to make the
monthly payment within the timeframe defined within this paragraph, Xxxxxxxx
will not be responsible for providing services under this contract to GlobeTel.
If GlobeTel fails to make two consecutive payments to Xxxxxxxx, the contract
will be deemed terminated and Xxxxxxxx will be granted 150% of the monies due
for services rendered payable in test equipment or inventory as calculated in
replacement value as determined by ______________________________________. In
such event, test equipment and inventory shall be transferred to Xxxxxxxx free
of all liens and encumbrances.
a. Support. Xxxxxxxx shall provide up to [***] support hours per month
to assist GlobeTel to plan, install, and operate a HotZone Suite of
Products and to train GlobeTel's personnel in planning, installing
and operating the HotZone Product Suite. Such support hours may be
accomplished on-site or off-site in Florida and shall be provided by
Xxxxxxxx employees or consultants mutually agreed upon by the
parties. GlobeTel will provide Xxxxxxxx with seven (7) days written
notice in advance of the date that its physical presence is required
for off-site services to be provided in Mexico. If such notice is
provided then Xxxxxxxx shall pay all travel expense for one off-site
assignment and GlobeTel shall pay all other expenses for off-site
services. If GlobeTel makes off-site requests without at least a
7-day notice, GlobeTel will be responsible for all travel expenses
for the support personnel to any location.
[***] Denotes information for which confidential treatment has been requested
Page 2 of 6
_______________________________
Xxxxxx Xxxxxxxx, Individually
_______________________________ __________________________
Globetel Communications, Corp. Globetel Wireless, Corp.
b. Additional Hours. If more support hours than the [***] stated
above in (a) are needed and requested by GlobeTel, GlobeTel shall
pay Xxxxxxxx a fee of $120 per hour for each additional support hour
required.
c. Units. Xxxxxxxx will build up to [***] units per month of the
HotZone 4010 for GlobeTel at Xxxxxxxx'x offices in Naples, Florida.
Cost of assembly and testing of such units is included in the
monthly cost set forth in this agreement, except for the cost of
parts as set forth in subparagraph d below.
d. Costs. GlobeTel will order and pay for all materials of the HotZone
4010s to be assembled as per subparagraph c above, and will pay all
shipment costs, FOB Naples, Florida.
e. Modifications. GlobeTel will pay for any functional modifications to
the HotZone 4010 performed by Xxxxxxxx at such rates as determined
by Xxxxxxxx and customarily charged by or planned to be charged by
Xxxxxxxx when it commences operations. Any modifications paid for by
GlobeTel will be the excusive intellectual property of GlobeTel.
f. Right of First Refusal. For a period of one (1) year after execution
hereof, GlobeTel have the right of first refusal to purchase from
Xxxxxxxx any newly developed wireless system or radio developed by
Xxxxxxxx, at the cost of $1,250 per unit if any unit is in a die
cast mold, or at the best price provided to any other customer,
whichever is less. After the first one (1) year after execution
hereof, GlobeTel shall have the option of purchasing any unit upon
the best terms and conditions as any other offer accepted by
Xxxxxxxx.
g. Intellectual Property. Apart from the HotZone product line, any
intellectual property, technology, and/or product developed by
Xxxxxxxx subsequent to this Agreement, shall be the exclusive
property of Xxxxxxxx, to which GlobeTel shall have no rights, unless
otherwise provided for in this Agreement. Any intellectual Property
paid for by GlobeTel to Xxxxxxxx for the any development, repair or
maintenance of the HotZone Product Line will be the exclusive
property of GlobeTel.
h. Default. In the event that any party breaches any obligation or
terms and conditions within this agreement, for any reason, the
party may deliver to the default party a default notice detailing
the default event and if the default is not cured by that party
within seven (7) days after the default notice is given. In the case
of GlobeTel being called into default Xxxxxxxx may hold as
collateral any inventory or test equipment that is the property of
GlobeTel until the default is cured. In the case of a default is not
cured by Xxxxxxxx, Xxxxxxxx shall lose all rights granted to him
under this agreement including but not limited to those set forth in
section entitled "Consideration to Xxxxxxxx" and any unvested stock
options granted to Xxxxxxxx shall be lost.
Representations And Warranties Of GlobeTel.
Absence of Conflicting Agreements. Neither the execution and delivery of this
Agreement or any of the consummation by GlobeTel of the transactions
contemplated hereby, nor compliance by GlobeTel with any provisions contained
herein will (i) conflict with or result in any breach of any provision of the
Articles of Incorporation or Bylaws of GlobeTel; (ii) result in a default (or
give rise to any right of termination, cancellation or acceleration) under any
of the terms, conditions or provisions of any indenture, mortgage, agreement,
lien, license, government registration, contract, lease, or other instrument or
obligation to which GlobeTel is a party or by which GlobeTel or any of its
assets may be bound, or result in the creation of any mortgage, pledge, lien,
encumbrance or charge upon any of the properties or assets of GlobeTel; or (iii)
violate any order, writ, judgment, injunction, decree, statute, ordinance, rule
or regulation applicable to GlobeTel or any of its assets.
[***] Denotes information for which confidential treatment has been requested
Page 3 of 6
_______________________________
Xxxxxx Xxxxxxxx, Individually
_______________________________ __________________________
Globetel Communications, Corp. Globetel Wireless, Corp.
Governmental Consents. No consent, waiver, approval, authorization or permit of,
or designation, declaration or filing with or notification to, any governmental
or regulatory authority on the part of GlobeTel is required in connection with
the valid execution and delivery of this Agreement, or is or was required for
the offer, sale or issuance of the Securities.
Litigation. There is no pending or currently threatened claim or action, suit,
arbitration, proceeding or investigation before any court, arbitrator or
government commission or agency against GlobeTel or against any other person or
entity, except as disclosed in GlobeTel's public filings (i) which questions or
would affect the validity or enforceability of this Agreement, or the further
documents, instruments or agreements referred to or provided for herein or
GlobeTel's right to enter into the same or to consummate transactions
contemplated hereby, (ii) which might reasonably be expected to have an adverse
effect on GlobeTel's assets or its business, (iii) which may affect GlobeTel's
ability to conduct its business as presently conducted or as proposed to be
conducted, or (iv) which might result in any change in the business, assets,
condition, affairs, operations, properties or prospects of GlobeTel, financially
or otherwise; nor is GlobeTel aware that there is any basis for any of the
foregoing. The foregoing includes, without limitation, actions pending or
threatened (or any basis therefore known to GlobeTel) involving the prior
employment of any of GlobeTel's employees or consultants, their use in
connection with the business of GlobeTel of any information or techniques
allegedly proprietary to any of their former employers or GlobeTel, or their
obligations under any agreements with prior employers or GlobeTel. GlobeTel is
not subject to the provisions of any order, writ, injunction, judgment or decree
of any court or governmental agency or instrumentality. There is no litigation
against any third party by GlobeTel involving its business.
Compliance. This agreement is full of common statements that are covered by
common law. If we enter into an agreement in conflict with such a paragraph, it
would be fraud.
Additional Covenants.
Employees and Consultants. Within 30 days of the execution of the agreement,
Xxxxxxxx may extend an offer of employment to any of GlobeTel Wireless's former
or current US-based employees without objection of GlobeTel.
Restriction. GlobeTel will allow Xxxxxxxx to produce and sell the HotZone
Product Line as an authorized reseller. With GlobeTel's permission, Xxxxxxxx may
hold seminars, market, advertise, distribute, making demonstrations and/or
pilots of the HotZone Product Line with any party including prospective
customers of Xxxxxxxx. GlobeTel shall approve any marketing materials used by
Xxxxxxxx with regard to the HotZone Product Line prior to their distribution.
Sales. If Xxxxxxxx sells any of the HotZone Product Line, GlobeTel shall receive
50% of the profit from such sale and Xxxxxxxx shall receive the remaining 50% of
profit from the sale. All pricing for the HotZone Product Line shall be at
prices and upon such terms that are acceptable to the parties. GlobeTel, using
its reasonable commercial discretion, may reject any sale by Xxxxxxxx that it is
directly competitive to a proposal already submitted to a customer or potential
customer of GlobeTel.
[***] Denotes information for which confidential treatment has been requested
Page 4 of 6
_______________________________
Xxxxxx Xxxxxxxx, Individually
_______________________________ __________________________
Globetel Communications, Corp. Globetel Wireless, Corp.
Miscellaneous
Successors and Assigns. The rights and obligations of GlobeTel and Xxxxxxxx
shall be binding upon and benefit the successors, assigns, heirs, administrators
and transferees of GlobeTel and Xxxxxxxx. This agreement shall be assignable by
Xxxxxxxx at his discretion.
Amendments and Waivers. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), with the written
consent of GlobeTel and Xxxxxxxx.
Survival. The representations, warranties, covenants and agreements made by the
parties herein shall survive the transactions contemplated hereby.
Notices. All notices and other communications required or permitted hereunder
shall be in writing, shall be effective when given, and shall in any event be
deemed to be given upon receipt or, if earlier, if delivered by facsimile
transmission at the number below. All notices and communications shall are set
forth below:
GlobeTel Communications, Corp.
0000 Xxxxx Xxxx., Xxxxx # 000
Xxxxxxxx Xxxxx, XX 00000
Telephone (000) 000-0000, Facsimile (000) 000-0000
Xxxxxx Xxxxxxxx
0000 Xxxxxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Telephone (000) 000-0000
Governing Law and Arbitration. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida applicable to contracts
executed and performed in such State, without giving effect to conflict of law
principles. All controversies, claims and matters of difference arising between
the parties under this Agreement shall be submitted to binding arbitration in
Broward County, Florida under the Commercial Arbitration Rules of the American
Arbitration Association ("the AAA") from time to time in force (to the extent
not in conflict with the provisions set forth herein). This Agreement to
arbitrate shall be specifically enforceable under applicable law in any court of
competent jurisdiction. Notice of the demand for arbitration shall be filed in
writing with the other parties to this Agreement and with the AAA. Once the
arbitral tribunal has been constituted in full, a hearing shall be held and an
award rendered as soon as practicable. The demand for arbitration shall be made
within a reasonable time after the claim, dispute or other matter in question
has arisen, and the parties are not making progress toward a resolution. In no
event shall it be made after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter would be barred by the
applicable contractual or other statutes of limitations. The parties shall have
reasonable discovery rights as determined by the arbitration. The award rendered
by the arbitrators shall be final and judgment may be entered in accordance with
applicable law and in any court having jurisdiction thereof. The decision of the
arbitrators shall be rendered in writing and shall state the manner in which the
fees and expenses of the arbitrators shall be borne.
[***] Denotes information for which confidential treatment has been requested
Page 5 of 6
_______________________________
Xxxxxx Xxxxxxxx, Individually
_______________________________ __________________________
Globetel Communications, Corp. Globetel Wireless, Corp.
Counterparts. This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each party and delivered to the other
party. This Agreement, once executed by a party, may be delivered to the other
parties hereto by facsimile transmission of a copy of this Agreement bearing the
signature of the party so delivering this Agreement. In the event any signature
is delivered by facsimile transmission, the party using such means of delivery
shall cause the manually executed Execution Page(s) hereof to be physically
delivered to the other party within five (5) days of the execution hereof,
provided that the failure to so deliver any manually executed Execution Page
shall not affect the enforceability of this Agreement.
Services. All Services and products provided by Xxxxxxxx pursuant to this
Agreement are sold and/or rendered "as is," and Xxxxxxxx makes no warranties,
express or implied, with respect thereto and expressly disclaims any implied
warranties of merchantability or fitness for a particular purpose.
Notwithstanding the foregoing all products delivered to GlobeTel shall have been
assembled in a xxxxxxx-like manner and be free of defects related to such
workmanship for a period of 90 days.
Headings. The headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this Agreement
Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
Entire Agreement. Amendments. This Agreement and the instruments referenced
herein contain the entire understanding of the parties, their affiliates and
persons acting on their behalf with respect to the matters covered herein and
therein and, except as specifically set forth herein. No provision of this
Agreement may be waived other than by an instrument in writing signed by the
party to be charged with enforcement.
In witness whereof, this Agreement has been executed on the date first written
above.
/s/ Xxxxxx Xxxxxxxx
-----------------------------------
By: Xxxxxx Xxxxxxxx
GlobeTel Communications, Corp. GlobeTel Wireless, Corp.
/s/ Xxxxx Xxxxxx /s/ Xxxxx Xxxxxx
----------------------------------- -----------------------------------
By: Xxxxx Xxxxxx Chief Executive By: Xxxxx Xxxxxx Chief Executive
Officer Officer
[***] Denotes information for which confidential treatment has been requested
Page 6 of 6
_______________________________
Xxxxxx Xxxxxxxx, Individually
_______________________________ __________________________
Globetel Communications, Corp. Globetel Wireless, Corp.
