Joint Venture Agreement
GlobeTel Communications Corp., - VPN de Mexico, S.A. de C.V.
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AGREEMENT TO FORM JOINT VENTURE COMPANY
This JOINT VENTURE AGREEMENT (the "Agreement") is made and entered into as of
this 26th day of January 2007 by and between GLOBETEL COMMUNICATIONS CORP., a
Delaware corporation, with offices located at 0000 Xxxxx Xxxx., Xxxxx 000,
Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxx Xxxxxx of America ("GlobeTel"), and VPN DE
MEXICO SA de CV, a company organized and existing under the laws of Mexico
("VPN") with offices located at Av. Reforma No. 2608 Col. Xxxxx Xxxxx, X.X.
00000 Xxxxxx D.F. (GlobeTel and VPN collective referred to as "the Parties" and
individually as a "Party").
RECITALS:
A. GlobeTel is in the business of providing wireless broadband networks
providing standards based connectivity and has rights to certain intellectual
property in such regard.
B. VPN has capital to provide for the construction of wireless networks
utilizing GlobeTel products and intellectual property, certain licenses
necessary for the provision of telecommunications services in Mexico, and
knowledge of the Mexican telecommunication's market.
C. The parties wish to enter into this Agreement to realize their mutual goals
and objectives. NOW, THEREFORE, in consideration of the mutual promises
contained herein, the parties agree as follows:
1. DEFINITIONS.
Capitalized terms used in this Agreement are defined throughout the Agreement.
Terms not defined herein shall be given their plain English meaning; provided,
however, that those terms, acronyms and phrases known in the computer software
industry which are not defined shall be interpreted in accordance with their
generally accepted industry meaning. Headings used in this Agreement are for
ease of reference only and shall not be used to interpret any aspect of this
Agreement.
2. THE PROJECT.
2.1 INITIAL NETWORK DEPLOYMENT. On June 7, 2006 the Parties entered into an
Initial Network Installation Agreement (the "Initial Agreement") for the
construction of a test Wireless Broadband Network, utilizing GlobeTel's HotZone
technology (the Initial Network) consisting of a wireless telecommunications
platform that combines the protocols of WiFi, WiMax and DECT (Voice) into a
single operation, based on the initial characteristics and on the Road Map
delivered by GlobeTel on January 25, 2007. The platform will provide both
Broadband Internet Services and DECT voice service. Such platform will also
allow the interface between the billing, network monitoring and customer service
interface for the control and operation of a Metropolian RF (Radio Frequency)
wireless network, being expressly understood by the Parties that the mentioned
platform, billing, network monitoring and customer service interface may be
substituted by a better, newer, broader and/or larger one, upon resolution of
the Company's Board of Directors. The Parties hereby agree that all obligations
of each of them under the Initial Agreement have been fully performed and
satisfied.
Joint Venture Agreement
GlobeTel Communications Corp., - VPN de Mexico, S.A. de C.V.
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2.2 ADDITIONAL NETWORK DEPLOYMENT. The Joint Venture entity itself, or any other
Qualifying Entity (the "Company") (Company shall mean any entity approved by the
Parties in accordance with regulatory and financial needs) thereof, shall
construct additional Wireless Broadband Networks similar to the Initial Network
in Mexico (the "Project Networks") pursuant to the business plan developed by
the Parties and attached hereto as Schedule 2.2 (the "Initial Plan"). Such
network shall support the same services as the Initial Network. In Addition, the
Parties expressly agree that the Project Networks viability and development will
be determined at the discretion of the Board of Directors and/or the
Shareholders as provided for herein;
2.3 FUNDING. The Parties shall provide to the Company the working capital
necessary for the construction of the Project Networks and any other funds
required for the operation of the business of such Project Networks
proportionally to the Parties ownership in the Company in terms of Clause 3.1
below as agreed herein. The amount of such funding shall be set forth in the
Initial Plan, the initial draft of which is attached hereto as Schedule 2.2 The
Parties agree to cooperate in good faith and as quickly as practicable to agree
upon a definitive business plan, and until that plan is finished the Initial
Plan shall control.
A. In recognition of the development costs incurred by GlobeTel, GlobeTel
shallsell the latest version of the HotZone technology and supporting equipment
to the Company at cost plus [***] percent ([***]%). The foregoing on the
understanding that such [***] percent ([***]%) shall be paid by the Company
exclusively during the first [***] ([***]) months following the date of
incorporation of the Company. For purposes hereof, cost shall mean: the cost
shown in the invoice issued by the vendor of the equipment plus any taxes and/or
expenses, directly related to the purchase of the equipment minus any credits
and/or discounts granted by the vendor, directly related to the purchase of the
equipment.
B. Any and all proposals for capital contributions of the parties must be
approved by at least 80% (eighty percent) of the shareholders' of the Company,
in a Shareholders' Meeting duly held and in accordance with Section 4.2, f),
(ix) of this Agreement.
2.4 GOVERNMENTAL APPROVALS. The Company will require certain licenses or Mexican
Government Approvals to operate and provide the services contemplated by this
Agreement and by the Initial Plan.
A. Licenses: VPN currently holds the following licenses or Mexican Government
Approvals required by the Company:
1. Local;
2. Long Distance;
3. International Port; and,
4. Added Value Services.
Joint Venture Agreement
GlobeTel Communications Corp., - VPN de Mexico, S.A. de C.V.
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B. VPN shall use its best to secure and maintain all relevant Mexican
Governmental Approvals needed from time to time in connection with the
deployment, operation, ownership and maintenance of the Project Networks and in
connection with the delivery of the Project Networks' services to subscribers,
on the understanding that VPN will not be obligated to obtain any further
Mexican Governmental Approvals in addition to those it currently holds. In order
for the Company to operate and provide the services described herein VPN shall
appoint the Company as its exclusive agent for the rendering of such specific
services, in terms of that such Agency Agreement and its amendments, if any, in
the form of Annex 1 hereto, related to the licenses set forth in 2.4 A above and
to the Project Networks. Such Agency Agreement and its amendments, if any, shall
be in effect until such time that the Company obtains its own licenses, provided
that in the event that the Company obtains its own licenses, VPN will not
render, by itself nor through any third party, services using DECT or HotZone
technology, as defined in Clause 2.1 above. VPN agrees to make its best to
maintain such licenses so that they are current and valid for use by the
Company. VPN agrees and will make its best for the licenses described in
paragraph A 1, 2 and 3 above be available to assure the continuation of
operations and rendering of the services of the Company without interruption
until the Company owns its licenses.
C. For purposes hereof, "Mexican Governmental Approval" means any authorization,
consent, approval, license, concession, ruling, permit, certification, exemption
or registration by or with any Mexican Governmental Authority, and "Mexican
Governmental Authority" means any Mexican executive, judicial, legislative,
administrative or other federal, national, state, municipal or local
governmental authority, ministry, department, agency, office, organization or
authority.
2.5 LICENSES FOR THE USE OF RADIO-FREQUENCIES. All licenses for the
commercial use of radio-frequencies required for the operation of the Projects
Networks are granted by the Mexican Ministry of Communications and
Transportation only through public bidding processes. The Parties acknowledge
that at the time of executing this Agreement VPN does not own any rights or
licenses for the use of the radio-frequencies that may be required for the
operation of certain services to be provided by the Company. Therefore, the
Company will participate in any bidding process for the acquisition of the
required radiofrequencies. In the event that the Company does not meet the
governmental requirements, then VPN may, at its own discretion, participate in
bidding processes called by the Mexican Ministry of Communications and
Transportation, in order to obtain the necessary licenses for the use of
radio-frequencies by the Project Networks. All costs and expenses associated
with the Company is participation in the so called bidding processes, including
the actual bidding price for frequencies, will be paid by the Company. All costs
and expenses associated with VPN is participation in the so called bidding
processes, including the actual bidding price for frequencies, will be paid by
VPN. Due to the fact that, as mentioned above, the licenses for the commercial
use of radio-frequencies are granted only through public bidding processes, the
Parties expressly agree and recognize that VPN will not be liable or hold
responsible in the event VPN is not awarded with the licenses for the commercial
use of radio-frequencies required for the operation of the Project Networks.
Finally, the Parties expressly agree that in the event VPN is awarded with any
such licenses for the commercial use of radio-frequencies required for the
operation of the Project Networks, such licenses shall be of the exclusive
property of VPN, but VPN shall grant the Company the exclusive right to use such
licenses and shall keep such licenses current and valid for use, for as long as
the Project Networks remain in operation or until such time that the Company
obtains its own such licenses.
Joint Venture Agreement
GlobeTel Communications Corp., - VPN de Mexico, S.A. de C.V.
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Notwithstanding the forgoing the Company may obtain the licenses required by the
Project Networks or its use by any other legal means.
2.6 The Company shall be the exclusive agent of VPN for the provision of the
services of the Project Networks and/or of other networks as approved by the
Company's Board of Directors, in terms of the Agency Agreement attached hereto
as Annex 1, or any such other agency agreement approved by the Board of
Directors.
2.7 The Company will utilize the Project Networks or any other network equipped
and/or owned by the Company or any other network approved in writing by the
Board of Directors or the Management of the Company to render the services.
Notwithstanding the above, the Company will seek to use the other networks and
facilities of the Parties to the extent that the Board of Directors or
Management of the Company determines that the use of such networks or facilities
is in the best interest of the Company.
2.8 GlobeTel may deploy networks in other parts of the world, and this Agreement
only applies to the deployment of the networks in Mexico. Nothing herein shall
be construed as giving VPN rights to deploy any products similar in a degree of
confusion or equal to those of GlobeTel or its affiliates, for rendering exactly
the same services as provided herein, without the cooperation of GlobeTel.
Nothing herein shall be construed as giving GlobeTel rights to deploy in Mexico
any products of GlobeTel or its affiliates (including, but not limited to,
HotZone technology), except as provided herein, without the cooperation of VPN,
unless the business, commercial, corporate or any other kind of relationship
between GlobeTel and VPN has definitively and irrevocably come to its end, or in
the event that VPN expresses in writing not to have interest in such product, in
which case GlobeTel will be entitled to deploy it by itself and/or with any
third party. GlobeTel or VPN may not deploy any wireless network in Mexico
providing DECT connectivity other than the Project Networks. The parties also
expressly agree that the deployment of the Project Networks will be carried out
exclusively using VPN's VOIP infrastructure, or any such other infrastructure as
the Board of Directors may decide in a duly Board of Directors' Meeting.
3. JOINT VENTURE ARRANGEMENTS.
3.1 JOINT VENTURE COMPANY. The parties expect to structure the Company as
follows: Both Parties shall establish the Company that fulfills with regulatory,
tax and financial needs. The Company will be incorporated in accordance with
Mexican Laws, under the form of a "Sociedad Anonima de Capital Variable". Upon
initial funding being made under Section 2.3 as set forth in the initial
business plan (Schedule 2.2) (the "Funding Date"), each party shall receive the
share certificates evidencing each party's ownership in the Company. In the case
of VPN such ownership shall be 51% of the equity of the Company and in the case
of GlobeTel such ownership shall be 49% of the equity of the Company.
Joint Venture Agreement
GlobeTel Communications Corp., - VPN de Mexico, S.A. de C.V.
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3.2 GlobeTel and VPN shall jointly nominate (and may remove and replace) the
general director of the Company from time to time.
3.3 EMPLOYEES. Company will have its own administrative and operative structure
in accordance with the Business Plan. The general director will be the
responsible to execute the Business Plan and will report directly to the Board
of Directors.
3.4 FINANCIAL STATEMENTS. The parties shall agree on the appointment of an
internationally recognized firm of accountants (the "Independent Accountant"),
which shall audit the results of operations of Company.
The Company shall maintain books and records in its normal course of business
and according to Generally Accepted Accounting Principles.
3.5 PROFIT SHARING; DISTRIBUTIONS. The Company shall make distributions out of
cash funds in excess of the foreseeable needs of the Company ("Distributable
Cash") in such amounts as the shareholders meeting of the Company shall
determine. All such distributions of Distributable Cash shall be shared between
GlobeTel and VPN as per their proportionate ownership. Such profits may be
distributed on the basis and upon the preparation of the accounts of the Company
reviewed by the Independent Accountant.
3.7 LEGAL COSTS AND EXPENSES. All legal fees, costs and expenses derived
from the execution of this Agreement, including without limitation, the
obtaining of all necessary Mexican Governmental Approvals by the Company, and
derived from any and all third party claims, liabilities, damages, suits,
judgments, costs, and expenses (including, reasonable attorney's fees), incurred
as a result of (a) the actions of each party relating to this Agreement and the
performance of the Project Networks and the duties set forth herein; (b) the
breach of any of the provisions hereof by the respective parties; (c) any claims
by third parties or government agencies arising out of or in connection with any
breach or allegation by any third party or any breach of the provisions hereof
by the respective parties; (d) any claims by third parties based upon any
representations or warranties arising out of or in connection with the
respective products or services, representations, or artwork of the parties, or
upon alleged patent, trademark or copyright infringement or unfair competition
in connection with the respective products or services or representations of the
parties, by reason of this Agreement; (e) acts or omissions of any firm employed
by the respective parties to perform any portion of the Project, duties or
obligations contained herein; and (f) product liability or other personal injury
claims which may be asserted against the respective goods or services, shall be
exclusively borne by the Company. This Section 3.7 shall survive the termination
of this Agreement.
3.8 DOCUMENTATION AND/OR INFORMATION. The Parties will, and will cause
each of its corresponding subsidiaries and/or affiliates, to furnish the other
Party upon such Party's written request, with all the necessary and reasonable
documentation and/or information related directly to the services and equipment
associated with the Project and with the Project Networks, as such other Party
deems necessary, to verify, including but not limited to, its financial,
commercial and corporate condition. The requested Party shall deliver to the
requesting Party the documentation and/or information so requested within the
next ten (10) calendar days following the other Party's written request.
Joint Venture Agreement
GlobeTel Communications Corp., - VPN de Mexico, S.A. de C.V.
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4. CORPORATE GOVERNANCE.
4.1 GENERAL.
(a) The Company and the business of the Company shall be managed in accordance
with applicable law, such entity's constitutive documents, this Agreement and
any other document executed by the Parties in connection with the Project and/or
the Project Networks.
(b) In the event that at any time, for any legal and/or regulatory requirement,
any Governmental Authority requests to modify (i) any agreement provided herein,
(ii) the constitutive documents or (iii) any other document related to the
Project or the Project Networks, then the Parties hereby will take all the
necessary actions for the Company to be managed in accordance with the
provisions of this Agreement, the constitutive documents and any other related
document, and the Parties will execute any documents required to achieve such
purposes.
4.2 THE BOARD. Promptly after the Funding Date, each of GlobeTel and VPN shall
use all reasonable endeavours (so far as possible under applicable law) to
cause:
(a) the board of directors of the Company to consist of five directors, two of
whom shall be designated or nominated by GlobeTel (the "GlobeTel Directors") and
three of whom shall be designated or nominated by VPN (the "VPN Directors");
(b) the GlobeTel Directors and the VPN Directors to be removed and/or replaced
from the board only pursuant to the instructions of GlobeTel and VPN,
respectively;
(c) in the event of a GlobeTel Director or VPN Director resigning or being
removed pursuant to the preceding sub-clause (b), the vacancy to be filled only
by a person nominated by GlobeTel or VPN, respectively;
(d) the board will be required to meet at least once every three months; the
parties agree that attendance at such meetings by means of a telephone or video
link that allows persons so attending to hear, and be heard by, those physically
present shall constitute valid attendance as long as the agreements taken in
such meeting are later confirmed by signing the minute of such meeting;
(e) the board to approve all decisions or resolutions and grant consents only at
a duly constituted meeting (for which the requisite quorum shall be four out of
five directors) and by a vote passed with a majority of at least three out of
five of the members of the board;
The foregoing on the understanding that none of the following matters to be
pursued by the Company without the prior approval of al least four of the five
members of the Board of Directors:
i. all expenses above US$10,000.00 (Ten Thousand Dollars) and not included in
the Initial Plan;
Joint Venture Agreement
GlobeTel Communications Corp., - VPN de Mexico, S.A. de C.V.
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ii. the early termination of this Agreement, due to, among others, the failure
of the Company to obtain the licenses for the commercial use of
radio-frequencies, and the Company is not able to operate the Project Networks,
the Project's non viability, etc,;
iii. the infrastructure to be used in the deployment of Project Networks in
substitution of VPN's VOIP infrastructure;
iv. approval of the business plan;
v. granting of any guaranty, outside the ordinary course of business;
vi. selling or acquisition of any software related to the services provided by
the Company;
vii. any decision related to the technology used by the Company and related to
services that the Company provides;
viii. incur any debt not contemplated in the approved Business Plan.
ix. appointment and/or removal of the Chief Executive Officer, the General
Director or Managing Director.
x. sell or purchase assets of the Company not contemplated in the approved
Business Plan;
xi. entering into a business activity outside the normal scope of the Company's
current business; and,
xii. change vendors of services, products, infrastructure or technology, related
to the services provided by the Company.
(f) none of the following matters to be pursued by the Company without the prior
approval of 80% of the shareholders:
(i.) any amendment to the charter, articles or other constitutive documents of
the Company;
(ii.) any merger, consolidation, recapitalization, reorganization, spin-off, or
other business combination involving the Company;
(iii.) the acquisition of the assets or stock of any other business or company,
or entering into any partnership, joint venture, syndicate, pool, profit-sharing
or royalty agreement or other combination, whereby its income or profits are, or
might be shared with any other Person ("Person" means and includes any
individual, partnership, joint venture, corporation, sociedad anonima, sociedad
anonima de capital variable, sociedad mercantil, trust, limited liability
company, joint stock company, unincorporated organization, government entity or
any political subdivision or agency thereof, or any other entity), or into any
management contract or similar arrangement whereby its business or operations
are managed by another Person, or enter into any management contract or similar
arrangement, other than explicitly provided for in the Initial Plan;
(iv) any voluntary liquidation, administration, bankruptcy, suspension of
payments, composition, arrangement or general assignment for the benefit of
creditors or any other similar matter involving the Company;
(v) the declaration or payment of any dividend or other distribution by the
Company;
(vi) any increase, decrease or other modification of the equity capital or the
authorization, issuance, repurchase or redemption of any equity securities or
securities convertible into or exchangeable for such securities by the Company;
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GlobeTel Communications Corp., - VPN de Mexico, S.A. de C.V.
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(vii) any grant or waiver of pre-emptive rights with respect to any equity
security of the Company or securities exchangeable or convertible into such
shares or securities;
(viii) the establishment or incorporation of any entity in which more than 20%
of the equity interest is owned directly or indirectly by the Company;
(ix) capital contributions of the Parties;
(x) the use by any of the Parties of any Intellectual Property (as such term is
defined herein below) developed in connection with the Project Networks;
(x) any material change in the nature of the business operations of the Company;
and,
(xi) the early dissolution and liquidation of the Company.
(g) in connection with any matter which, under the laws of Mexico, is required
to be approved by the equity interest holders of the Company, any duly convened
meeting of such holders (for which the requisite quorum shall be holders holding
in aggregate all voting interests) the approval of all decisions or resolutions
and the grant of all consents only by the unanimous vote of (or after receiving
the unanimous approval of) all the holders of all such equity interests.
5. PROJECT MANAGEMENT.
5.1 Bank Accounts. The Company shall maintain one or more bank accounts as
approved from time to time by the Board of Directors , in which shall be
deposited the Company's capital contributions and other cash receipts and from
which Company's expenses shall be paid.
5.2 Books and Records. The Company's books of account and all securities,
papers, minute books, etc., shall be kept at the offices of the Company or at
such other place or places as shall be approved in advance by its board of
directors (or equivalent governing body) or as established by applicable law.
6. TRANSFER RESTRICTIONS.
6.1 TRANSFERS. The provisions of this Section 6 apply in relation to any
Transfer, or proposed Transfer, of Shares in the Company (whether ordinary
shares or preferred shares, the "Shares") or any interest in those Shares. For
purposes hereof:
(a) "Change of Control" means, with respect to any party or any Controlling
Person of such party, (i) the sale or other disposition of a Controlling
Interest in such party or Controlling Person, in one or a series of related
transactions, to any person or persons (other than a Controlling Person of such
party or any Subsidiary of such Controlling Person), (ii) the merger or
consolidation of such party or Controlling Person with or into another person or
the merger of another person into such party or Controlling Person with the
effect that any person or persons other than the existing equity holders of such
party or Controlling Person prior to such transaction own or control a
Controlling Interest in the person surviving such merger, or the person
resulting from such consolidation or (iii) the liquidation or dissolution of
such party or Controlling Person.
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(b) "Controlling Interest" means the ownership or control, direct or indirect,
of more than fifty percent (50%) of the securities having ordinary voting power
for the election of directors or other governing body of a person or more than
fifty percent (50%) of the partnership or other ownership interest therein
(other than as a limited partner of such person).
(c) "Controlling Person" means, with respect to any person (other than a natural
person), any other person which has a Controlling Interest in such person.
(d) "Encumbrance" means any mortgage, pledge, lien, charge, assignment,
hypothecation, adverse claim, levy, conditional sale contract, title retention
contract or any other agreement or arrangement which has the same or a similar
effect to grant any of the foregoing.
(e) "Third Party" means a person that is not a party hereto (or an affiliate
thereof).
(f) "Shares" means any security evidencing an equity interest in the Company.
(g) "Transfer" means any direct or indirect sale, exchange, transfer (including,
without limitation, any transfer by donation or operation of law, or any
transfer of an economic interest in any derivative security), assignment,
distribution or other disposition, or issuance or creation of any option or any
voting proxy, voting trust or other voting agreement in respect of any person or
instrument (including, without limitation, any of the securities), whether in a
single transaction or a series of related transactions, including without
limitation, (a) the direct or indirect enforcement or foreclosure of any
Encumbrance or (b) any Change of Control.
6.2 RIGHT OF FIRST REFUSAL. (a) If a Party (the "Seller") proposes to Transfer
any Shares to a Third Party, it may do so only in a Transfer for cash
consideration for all its Shares and the Seller shall first provide the other
Party (the "Continuing Shareholder") with a notice of its intent to transfer
such Shares (specifying, with respect to such proposed Transfer, the name of the
proposed transferee (the "Transferee"), the number of Shares (being all the
Shares held by the Seller) and the purchase price per Share (the "Seller's
Notice") and, for 60 calendar days following the receipt of such notice, the
Continuing Shareholder shall have the exclusive option to deliver a reply notice
(the "Reply Notice") to the Seller setting forth the irrevocable election of the
Continuing Shareholder to require the Seller to Transfer to the Continuing
Shareholder (or its designee) all (and not only part) of such Shares at least at
the same terms and conditions so offered to the Transferee, including without
limitation, price per Share, terms, payments, etc.
(b) If there has been a timely delivery of a Reply Notice pursuant to sub-clause
(a) above, then the sale of the Shares shall close at a time and place
reasonably acceptable to the Seller and the Continuing Shareholder; provided
that such closing shall not occur more than 10 calendar days after the receipt
of all necessary Mexican Governmental Approvals (or if no such approvals are
necessary, such closing shall not occur more than 20 calendar days after the
date of the Reply Notice). At such closing, the Continuing Shareholder will
deliver to the Seller the consideration for such Shares in immediately available
funds and the Seller shall deliver to the Continuing Shareholder the relevant
Shares, and all other documents required to effect the sale of such Shares, free
of any Encumbrances.
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(c) Subject to Section 6.3, if the Continuing Shareholder does not timely
deliver a Reply Notice, the Seller may Transfer its Shares to the Transferee at
not less than the price per Share (as stated in the Seller's Notice) provided
that the Transfer is completed within 90 calendar days after expiration of the
60-day period within which the Continuing Shareholder may deliver a Reply
Notice. Any proposed sale of such Shares following such 90-day period shall be
subject to the procedures of this Article 6.
6.3 TAG-ALONG RIGHTS. (a) In addition to its right of first refusal under
Section 6.2, each party shall have, during the 60 calendar days following the
receipt of the Seller's Notice, the option to deliver a reply notice to the
Seller (a "Tag-Along Notice") setting forth the irrevocable election of the
Continuing Shareholder to require the Seller to include in such proposed sale
(at the purchase price per Share specified in the Seller's Notice) all (and not
only part) of the Shares held by the Continuing Shareholder, and the Seller
shall not consummate such sale unless all such Shares held by the Continuing
Shareholder are included in such sale.
(b) If there has been a timely election by the Continuing Shareholder to sell
its Shares pursuant to the election contemplated by sub-clause (a) above, then
the Seller shall arrange for the cash consideration to be paid by the Transferee
pursuant to such Transfer to be transferred directly to the Continuing
Shareholder upon delivery by the Continuing Shareholder of such Shares being
sold. In the event the Seller or the Continuing Shareholder either fails to
deliver its Shares or breaches any representations, warranties or pre-closing
covenants as may be reasonably required by the Transferee and such breach
results in the non-satisfaction of a condition to the closing of such sale which
the Transferee does not waive, then (i) any non-breaching party shall be free to
sell its Shares to the Transferee without liability to the breaching party, (ii)
the breaching party shall be liable for (and shall hold any non-breaching party
harmless with respect to) such breach and (iii) any sale shall not limit or
waive in any respect any claim, right or cause of action that any non-breaching
party may have against the breaching party in respect of such breach.
(c) Subject to this Section 6.3 if the Continuing Shareholder does not timely
deliver a Tag-Along Notice, the Seller may Transfer all its Shares to the
Transferee at not less than the price per Share (as stated in the Seller's
Notice) provided that the Transfer is completed within 90 calendar days after
the Continuing Shareholder does not elect to exercise its tag-along rights. Any
proposed sale of such Shares following such 90-day period shall be subject to
the procedures of this Article 6.
6.4 NO BENEFIT. For the avoidance of doubt, no Third Party (including any
Transferee) shall have any rights under this Agreement.
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7. INTELLECTUAL PROPERTY.
7.1 OWNERSHIP OF INTELLECTUAL PROPERTY.
A. For the avoidance of doubt, GlobeTel and VPN (or its affiliates or its or
their providers) each separately own all right, title, and interest in their
Intellectual Property (IP) used in connection with the Project. The Company
shall have all rights or interest in any Intellectual Property, including the
Project Networks (but not the separate IP of either GlobeTel of VPN contained
therein), developed in connection with and/or arising out of the Project as may
be expressly agreed in writing by the Parties or their affiliates. The Parties
further agree that they shall not, unless approved in writing by the
Shareholders' Meeting of the Company (i) use, copy, modify, create any
derivative work of, or include in any other products any Intellectual Property
developed in connection with the Project or any portion thereof or (ii) reverse
assemble, decompile, reverse engineer or otherwise attempt to derive source code
(or the underlying ideas, algorithms, structure or organization) from any such
Intellectual Property. Any Intellectual Property developed specifically for the
Project Networks and for its exclusive use, including without limitation, any
other project that the Company shall have, shall be the property of the Company
(or its designated affiliate). Accordingly, the Company must execute such
documents, render such assistance, and take such other action as the Parties
deem necessary to apply for, register, perfect, confirm, and protect Company's
ownership rights, and the Company shall have the exclusive right to apply for or
register any patents, mask work rights, copyrights, and such other proprietary
protections with respect thereto.
B. For purposes hereof, "Intellectual Property" means any intellectual property
or proprietary rights in any jurisdiction, whether owned or held for use under
license, whether registered or unregistered, including such rights in and to:
(i) copyrights, trademarks and pending trademark applications, trade dress,
service marks, certification marks, logos, trade names, brand names, corporate
names, assumed names, business names and domain names; (ii) issued patents and
pending patent applications, utility models, industrial designs, patents of
importation/confirmation, certificates of invention, certificates of
registration and like statutory rights, inventions, invention disclosures,
discoveries and improvements, whether patentable or not; (iii) works of
authorship; (iv) trade secrets, business, technical and know-how information,
non-public information and confidential information and rights to limit the use
or disclosure thereof by any person; and (v) computer software, data files,
source and object codes, user interfaces, manuals, databases and other
specifications and documentation (collectively, "Software").
7.2 GLOBETEL MARKS. GlobeTel may elect to license the use of its trademarks,
trade names and branding to the Company in accordance with GlobeTel's
international practice from time to time.
7.3 VPN MARKS. VPN may elect to license the use of its trademarks, trade names
and branding to the Company in accordance with VPN's international practice from
time to time.
8. CONFIDENTIALITY; PUBLICITY.
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8.1 NON-DISCLOSURE. Unless otherwise agreed to in writing by the parties, each
of the Parties agrees to, and agrees to cause its respective affiliates,
accountants, attorneys, consultants and all other representatives to, keep and
hold in confidence and not use to the detriment of the other party or its
affiliates, this Agreement and any information acquired pursuant to this
Agreement or in connection with any of the transactions contemplated hereby,
including the business of the joint venture contemplated hereby, unless such
information is: (a) publicly available; (b) necessary in making any filing or
obtaining any consent or approval required for the consummation of the
transactions contemplated hereby; (c) otherwise required to be disclosed by any
Governmental Authority (including tax authorities), stock exchange,
self-regulatory organization or applicable law; (d) disclosed to the
professional advisers of such Party who are informed of this confidentiality
undertaking; or (e) disclosed in connection with an assignment permitted
hereunder.
8.2 RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION. Upon written demand by a
Party (the "Disclosing Party"), that has disclosed proprietary confidential
information pursuant to this Agreement and in any event upon termination of this
Agreement, the Party receiving such information (the "Receiving Party") shall:
(i) cease using such confidential information; (ii) return such confidential
information and all copies, notes or extracts thereof to the Disclosing Party
within seven (7) days of receipt of demand; and (iii) upon request of the
Disclosing Party, certify in writing that the Receiving Party has complied with
the obligations set forth in this paragraph.
8.3 PUBLICITY. The Parties may by mutual consent agree to issue a joint press
release describing the collaboration of the Parties. The Parties shall also
consult regularly during the term of the Agreement and issue, as and when
appropriate, such further press releases and/or other publicity materials as may
be appropriate. The contents of any press releases issued by the Parties shall
be subject to the approval of each Party, which approval shall not be
unreasonably withheld or delayed.
9. REPRESENTATIONS AND WARRANTIES.
9.1 VPN'S REPRESENTATIONS AND WARRANTIES. VPN represents and warrants to
GlobeTel as follows:
(a) VPN has all requisite right, power and authority and full legal capacity to
execute and deliver this Agreement, to carry out its obligations hereunder and
to consummate the transactions contemplated hereby. The execution, delivery and
performance by VPN of this Agreement, and the consummation by VPN of the
transactions contemplated hereby, have been duly authorized by VPN, and no other
proceedings (corporate or otherwise) on the part of VPN are necessary to
authorize the execution and delivery by VPN of this Agreement or the
consummation by VPN of the transactions contemplated hereby;
(b) this Agreement has been duly executed and delivered by VPN and (assuming due
and valid authorization, execution and delivery hereof by GlobeTel) is a valid
and binding obligation of VPN, enforceable against VPN in accordance with its
terms, and, when executed and delivered (and assuming due and valid
authorization, execution and delivery thereof by GlobeTel) will constitute a
valid and binding obligation of VPN enforceable against VPN in accordance with
its terms except enforcement may be subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws, now or hereafter
in effect, affecting creditors' rights generally;
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(c) it has sufficient capital to meet its financial and other obligations
hereunder and no Governmental Approvals are required in connection with the
payments contemplated by Section 2;
(d) (i) acceptance by GlobeTel of this Agreement, together with the acceptance
of the appropriate remittances of funds as set forth herein will not breach any
applicable rules and regulations designed to avoid money laundering and (ii) all
evidence of the identity of persons provided to GlobeTel is genuine and all
related information furnished is accurate;
(e) VPN further acknowledges and agrees that any investment, directly or
indirectly, in connection with this Agreement by or on behalf of the following
persons or entities (each, a "Prohibited Investor") is prohibited and shall not
be allowed by VPN: (i) a person or entity whose name appears on the List of
Specially Designated Nationals and Blocked Persons maintained by the U.S. Office
of Foreign Assets Control ("OFAC"); (ii) a Foreign Shell Bank as defined under
Section 313 of the USA PATRIOT Act; (iii) a person or entity resident in or
whose subscription funds are transferred from or through an account in a
Non-Cooperative Jurisdiction (meaning any country or territory that has been
designated as non-cooperative with international anti-money laundering
principles or procedures by a United States intergovernmental group or
organization; (iv) a person or entity whose name appears on any other list of
prohibited persons and entities as may be mandated by applicable law or
regulation; or (v) a person or entity whose name appears on any other list of
prohibited persons and entities as may be provided to VPN by GlobeTel. VPN
represents, warrants and covenants that neither VPN, nor any person controlling,
controlled by, or under common control with VPN, nor any person having a
beneficial interest in VPN, is a Prohibited Investor, and that VPN is not
investing and will not invest in the joint venture and enterprise contemplated
hereby on behalf of or for the benefit of any Prohibited Investor. VPN agrees to
promptly notify GlobeTel of any change in information affecting this
representation, warranty and covenant. VPN acknowledges that if GlobeTel
reasonably believes that VPN is a Prohibited Investor, or has otherwise breached
any representation, warranty or covenant hereunder, then GlobeTel may be
obligated to cease further performance hereunder, including an obligation to
make no additional investment in connection with the Project and/or to segregate
the assets constituting the investment hereunder in accordance with applicable
regulations, and VPN shall have no claim against GlobeTel (or its principals or
affiliates) for any form of damages or liabilities as a result of any of the
aforementioned actions; and,
(f) VPN further agrees that it shall follow Ethical Practices with respect to
the conduct of its business and of the business of the joint venture
contemplated hereby. "Ethical Practices" means the practices or procedures
undertaken to ensure that none of VPN or any of its shareholders or any of their
respective officers, directors, employees, shareholders or agents take any
action, directly or indirectly, that would result in or would result in the
furtherance of: (i) any offer, payment, promise to pay or authorization of the
payment of any money, or other property, or any gift, promise to give, or
authorization of the giving of anything of value to any government official,
political party, public international organization or official thereof or any
candidate for political office; or (ii) a violation of any applicable laws
regarding corrupt practices.
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9.2 GLOBETEL'S REPRESENTATIONS AND WARRANTIES. GlobeTel represents
and warrants to VPN as follows:
(a) GlobeTel has all requisite right, power and authority and full legal
capacity to execute and deliver this Agreement, to carry out its obligations
hereunder and to consummate the transactions contemplated hereby. The execution,
delivery and performance by GlobeTel of this Agreement, and the consummation by
GlobeTel of the transactions contemplated hereby, have been duly authorized by
GlobeTel, and no other proceedings (corporate or otherwise) on the part of
GlobeTel are necessary to authorize the execution and delivery by GlobeTel of
this Agreement or the consummation by GlobeTel of the transactions contemplated
hereby; and
(b) this Agreement has been duly executed and delivered by GlobeTel and
(assuming due and valid authorization, execution and delivery hereof by VPN) is
a valid and binding obligation of GlobeTel, enforceable against GlobeTel in
accordance with its terms, and, when executed and delivered (and assuming due
and valid authorization, execution and delivery thereof by VPN) will constitute
a valid and binding obligation of GlobeTel enforceable against GlobeTel in
accordance with its terms except enforcement may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or
hereafter in effect. affecting creditors' rights generally.
(c) it has sufficient capital to meet its financial and other obligations
hereunder and no Governmental Approvals are required in connection with the
payments contemplated by Section 2;
(d) (i) acceptance by VPN of this Agreement, together with the acceptance of the
appropriate remittances of funds as set forth herein will not breach any
applicable rules and regulations designed to avoid money laundering and (ii) all
evidence of the identity of persons provided to VPN is genuine and all related
information furnished is accurate;
(e) Globetel further acknowledges and agrees that any investment, directly or
indirectly, in connection with this Agreement by or on behalf of the following
persons or entities (each, a "Prohibited Investor") is prohibited and shall not
be allowed by Globetel: (i) a person or entity whose name appears on the List of
Specially Designated Nationals and Blocked Persons maintained by the U.S. Office
of Foreign Assets Control ("OFAC"); (ii) a Foreign Shell Bank as defined under
Section 313 of the USA PATRIOT Act; (iii) a person or entity resident in or
whose subscription funds are transferred from or through an account in a
Non-Cooperative Jurisdiction (meaning any country or territory that has been
designated as non-cooperative with international anti-money laundering
principles or procedures by a Mexican or United States intergovernmental group
or organization; (iv) a person or entity whose name appears on any other list of
prohibited persons and entities as may be mandated by Mexican or applicable law
or regulation; or (v) a person or entity whose name appears on any other list of
prohibited persons and entities as may be provided to GlobeTel by VPN. GlobeTel
represents, warrants and covenants that neither GobeTel, nor any person
controlling, controlled by, or under common control with GlobeTel, nor any
person having a beneficial interest in GlobeTel, is a Prohibited Investor, and
that GlobeTel is not investing and will not invest in the joint venture and
enterprise contemplated hereby on behalf of or for the benefit of any Prohibited
Investor. GlobeTel agrees to promptly notify VPN of any change in information
affecting this representation, warranty and covenant. GlobeTel acknowledges that
if VPN reasonably believes that GlobeTel is a Prohibited Investor, or has
otherwise breached any representation, warranty or covenant hereunder, then VPN
may be obligated to cease further performance hereunder, including an obligation
to make no additional investment in connection with the Project and/or to
segregate the assets constituting the investment hereunder in accordance with
applicable regulations, and GlobeTel shall have no claim against VPN (or its
principals or affiliates) for any form of damages or liabilities as a result of
any of the aforementioned actions.
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(f) GlobeTel further agrees that it shall follow Ethical Practices with respect
to the conduct of its business and of the business of the joint venture
contemplated hereby. "Ethical Practices" means the practices or procedures
undertaken to ensure that none of GlobeTel or any of its shareholders or any of
their respective officers, directors, employees, shareholders or agents take any
action, directly or indirectly, that would result in or would result in the
furtherance of: (i) any offer, payment, promise to pay or authorization of the
payment of any money, or other property, or any gift, promise to give, or
authorization of the giving of anything of value to any government official,
political party, public international organization or official thereof or any
candidate for political office; or (ii) a violation of any applicable laws
regarding corrupt practices.
10. TERMINATION AND DISSOLUTION.
10.1 TERMINATION. Following incorporation of the Company, this Agreement shall
terminate automatically (without any action by any party) upon either party (or
its permitted assigns) ceasing to hold any Shares. Articles 2, 4, 6, 7 and 8 and
this Article 10 shall survive any expiration or termination of this Agreement or
any project hereunder. In addition, this Agreement shall be terminated, and the
Company dissolved, by:
(a) Execution of a written agreement to that effect by both Parties;
(b) the filing by either Party of a voluntary petition in bankruptcy or
other proceeding analogous to bankruptcy in purpose or effect;
(c) the filing against either Party by its creditors of a petition in
bankruptcy or other proceeding analogous to bankruptcy in purpose or effect,
that is not dismissed within 30 days after filing;
(d) the appointment of a receiver or similar official for all or
substantially all the assets of a Party; and,
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(e) by resolution of the corresponding General Extraordinary Shareholders'
Meeting duly met.
10.2 TERMINATION OF AGREEMENT. This Agreement shall terminate if before the
incorporation of the Company by the parties there is a default by either Party
in performance of a material obligation under this Agreement that remains
uncured for 30 days after the defaulting Party receives written notice of
default from the other Party, or, in the event the default is disputed, remains
uncured for 30 days after a decision from a court of competent jurisdiction
compelling performance of the defaulted obligation. In addition, this Agreement
may be terminated by written notification delivered by either Party to the
other, informing the other Party about its decision to terminate this Agreement,
with at least 30 calendar days prior to the effective termination date.
10.3 DISSOLUTION OF THE COMPANY. Either Party may call for the dissolution of
the Company if the Parties fail to agree to material terms as shareholders
and/or in the board of directors. including a disagreement between the
shareholders about the viability of the ongoing business, then any Party shall
tender its shares in the Company to the other Party at a price to be determined
by valuation granted by publicly recognized firm of public accountants
satisfactory to the Parties. Should this clause become effective, each Party
will continue to render its services to the other Party for a period of 8
(eight) months.
11. MISCELLANEOUS
11.1 CONTROLLING LAW. This Agreement and any action related thereto shall be
governed, controlled, interpreted and defined by and under the laws of the
United Mexican States.
11.2 JURISDICTION. For all aspects related to the validity, interpretation and
enforceability of this Agreement, along with the terms and conditions set forth
herein, the Parties expressly and irrevocably consent to submit to the
jurisdiction and competence of the courts of Mexico City, Federal District,
United Mexican States, waiving any jurisdiction that may correspond to them by
reason of their current or future domiciles.
11.3 LIMITATION OF LIABILITY. LIMITATION OF DAMAGES. EXCEPT FOR BREACH OF THE
OBLIGATIONS OF CONFIDENTIALITY UNDER ARTICLE 8, NEITHER PARTY SHALL BE LIABLE
WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, STRICT
LIABILITY, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, OR COST OF PROCUREMENT OF
SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES.
11.4 EQUITABLE RELIEF. Each Party acknowledges that a breach by the other Party
of any confidentiality or proprietary rights provision of this Agreement may
cause the non- breaching Party irreparable damage, for which the award of
damages would not be adequate compensation. Consequently, the non-breaching
Party may institute an action to enjoin the breaching Party from any and all
acts in violation of those provisions, which remedy shall be cumulative and not
exclusive, and a Party may seek the entry of an injunction enjoining any breach
or threatened breach of those provisions, in addition to any other relief to
which the non- breaching Party may be entitled at law or in equity.
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11.5 PENALTY. In the event that: (i) any of the Parties hereto fails to comply
with any of its obligations hereunder due to its negligence or willful
misconduct, (ii) any of the representations and warranties of any of the Parties
results to be false or misleading in any respect, (iii) any Mexican Governmental
Approval is revoked by negligence or willful misconduct of its holder, and (iv)
there is any action, claim, process, suit, demand, etc., in connection with the
rights, ownership or interest in the DECT and/or HotZone technology necessary
for the Project Networks, then, this Agreement shall be automatically and
immediately terminated without need of any notice or judicial resolution, and
the defaulting Party shall pay the non-defaulting party a penalty, for an amount
equal to the amount the defaulting Party has paid as capital contribution in the
Company.
11.6 FORCE MAJEURE. Neither Party shall be liable to the other for delays or
failures in performance resulting from causes beyond the reasonable control of
that Party, including, but not limited to, acts of God, labor disputes or
disturbances, material shortages or rationing, riots, acts of war, governmental
regulations, communication or utility failures, or casualties.
11.7 RELATIONSHIP OF PARTIES. The Parties are independent contractors under this
Agreement, including a partnership, franchise, agency, employer/employee,
fiduciary, master/servant relationship, or other special relationship. Neither
Party shall act in a manner which expresses or implies a relationship other than
that of independent contractor, nor bind the other Party, until the Company is
formed under the terms of this Agreement.
11.7 NO THIRD PARTY BENEFICIARIES. No provision of this Agreement is intended or
shall be construed to confer upon or give to any third party.
11.8 NOTICES. Any notice required or permitted to be given by either Party under
this Agreement shall be in writing and in the English language and shall be duly
given (a) when delivered by hand or by a reputable overnight mail service (e.g.,
Federal Express), or (b) when successfully transmitted by fax (with a confirming
copy of such communication to be sent as provided in the preceding
sub-clause(a)), to the Project Manager of the other party and to the Parties'
domiciles first written above. A copy of any notice to the Project Manager of
GlobeTel shall simultaneously be sent to the following:
GlobeTel Communications Corp.
0000 Xxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxxx, General Counsel
Fax: (000) 000-0000
A copy of any notice to the Project Manager of VPN shall simultaneously be sent
to the following: Xx. Xxxxxxx Xx. 0000 Xxx. Xxxxx Xxxxx, X.X. 00000 Xxxxxx D.F.
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Any notice or other communication not received on a business day or received
after 17:00 hours local time on a business day in the city of the recipient
shall be deemed to be received on the next following business day in the city of
the recipient.
It is agreed by the parties hereto that any change with respect to the addresses
mentioned above, shall be notified to the other party in the same manner and
terms as those provided herein, being understood that the breach of this
provision by any party hereto, would cause that all notices given to the
addresses mentioned above will have full force and effect.
11.9 ASSIGNMENT. Neither Party may assign its rights or delegate its obligations
hereunder, either in whole or in Part, whether by operation of law or otherwise,
without the prior written consent of the other Party. Any attempted assignment
or delegation without consent will be null and void. However, GlobeTel may
assign its rights hereunder to an affiliate of GlobeTel and VPN may assign its
rights hereunder to an affiliate of VPN. The rights and liabilities of the
Parties under this Agreement will bind and inure to the benefit of the parties'
respective successors and permitted assigns.
11.10 WAIVER AND MODIFICATION. Failure by either Party to enforce any provision
of this Agreement will not be deemed a waiver of future enforcement of that or
any other provision. Any waiver, amendment or other modification of any
provision of this Agreement will be effective only if in writing and signed by
the Parties.
11.11 SEVERABILITY. If for any reason a court of competent jurisdiction finds
any provision of this Agreement to be unenforceable, that provision of the
Agreement will be enforced to the maximum extent permissible so as to effect the
intent of the Parties (and shall remain enforceable in any other jurisdiction),
and the remainder of this Agreement will continue in full force and effect.
11.12 HEADINGS. Headings used in this Agreement are for ease of reference only
and shall not be used to interpret any aspect of this Agreement.
11.13 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the Parties with respect to the subject matter hereof, and supersedes and
replaces all prior and contemporaneous understandings or agreements, written or
oral, regarding such subject matter.
11.14 COUNTERPARTS. This Agreement may be executed in two counterparts, each of
which shall be an original and together which shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement by persons
duly authorized as of the date and year first above written.
GlobeTel Communications Corp. VPN DE MEXICO, S.A. DE C.V.
By: /s/ Xxx Monterossso By: /s/ Xxxxxx Xxxxxxx Xxxxxxxx
---------------------- ----------------------------
Xxx Xxxxxxxxxx, Xxxxxx Xxxxxxx Xxxxxxxx,
COO CEO
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