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EXHIBIT 10.1
AGREEMENT
THIS AGREEMENT, dated September 28, 2000, by and among Pro Net Link
Corp., a Nevada Corporation (the "Company"), John A. Bohn ("Bohn"), Karen
Morgan ("Morgan") and GlobalNet Ventures Partners, LLC, a Delaware limited
liability company ("GlobalNet"; the Company, Bohn, Morgan and GlobalNet are
each referred to herein individually as a "Party" and collectively as the
"Parties") and Jean Pierre Collardeau and Glenn Zagoren.
WHEREAS, reference is made to the Agreement, dated as of August 8,
2000, by and among the Company, Bohn, Morgan and GlobalNet (the "Consulting
Agreement"), the Stock Option Agreement, dated as of August 8, 2000, between
the Company and GlobalNet (the "Option Agreement"), the Shareholder and Voting
Agreement, dated as of August 8, 2000, among the Company, GlobalNet and certain
other shareholders of the Company (the "Shareholder Agreement") and the
Registration Rights Agreement, dated as of August 8, 2000 between the Company
and GlobalNet (the "Registration Rights Agreement", and collectively all of the
agreements in this paragraph are the "Operating Agreements").
NOW, THEREFORE, in consideration of the foregoing and mutual covenants
contained herein, the Parties wish to terminate the Operating Agreements to the
extent applicable to the parties to this Agreement. In order to provide for
the consequences of such termination of the Operating Agreements and to provide
for the continuing relationship among the Parties, the Parties wish to
supersede the Operating Agreements as expressly set forth herein, effective
from and after September 20, 2000 (the "Effective Date"), and, therefore agree
as follows:
1. Termination of the Operating Agreements. The Consulting
Agreement, the Option Agreement, the Shareholder Agreement and the Registration
Rights Agreement are each hereby terminated in their entirety (as between the
Parties) and shall be of no further force or effect from and after the
Effective Date. All options granted to GlobalNet pursuant to the Consulting
Agreement and the Option Agreement are hereby forfeited effective as of the
Effective Date. Each of the Parties hereby agrees to take any additional steps
required to cause the amendment and/or termination, as the case may be, to or
of the Operating Agreements.
2. Resignations. Bohn hereby resigns effective as of the
Effective Date as a Director, President and Chief Executive Officer of the
Company. Morgan hereby resigns effective as of the Effective Date as a
Director, Chief Operating Officer and Senior Executive Vice President of the
Company.
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3. Financing and Revenue Fee.
(a) In the event that Bohn, Morgan and/or GlobalNet, or
any of their respective Affiliates, shall at any time first introduce to the
Company another Person after the date hereof that (i) causes an equity or debt
investment to be made in the Company or (ii) enters into a contract or other
arrangement with the Company that results in the Company actually realizing
revenue from such introduction, the Company shall pay to GlobalNet 5% of the
amount of such investment or revenues. Payment of the foregoing shall be due
(X) in the case of any investment transaction, at the closing of such investment
transaction or (Y) in the case of a revenue generating contract, within 30 days
of collection by the Company of the relevant revenues.
(b) The Parties acknowledge that no consideration under
this Section 5 shall be due with regard to any transaction until and unless such
transaction is actually consummated. Should any portion of the funding be held
in escrow or otherwise delayed for a certain period subsequent to the closing,
the Company shall only be obligated to pay GlobalNet at the closing
consideration based on the actual cash (or other consideration) received by the
Company at that time. Any additional consideration shall be payable within ten
days after the balance of the funding shall have been distributed to the
Company, and shall be computed on the amount actually distributed. For example,
should an escrow agent pursuant to the terms of an escrow agreement be required
to retain any amounts held by it, GlobalNet shall not be entitled to
compensation on amounts so held. The Company will not be obligated to enter into
any transaction or relationship introduced by GlobalNet, Bohn or Morgan, and
GlobalNet, Bohn and Morgan are not obligated to introduce any opportunity to the
Company.
4. Releases.
(a) Bohn and Morgan for themselves and for their heirs,
executors, administrators and assigns, and GlobalNet, for itself and any of its
past or present successors and assigns and any of its or their Affiliates or
related business entities, past or present directors, officers, attorneys,
agents, trustees, administrators, members and employees (hereinafter referred to
collectively as "the GNVP Releasors") forever, release and discharge the
Company, Jean Pierre Collardeau, Glenn Zargoren and any of its Affiliates or
related business entities, successors and assigns and any of its or their
Affiliates or related business entities, successors and assigns and any of its
or their past or present directors, officers, attorneys, agents, trustees,
administrators or employees (hereinafter referred to collectively as the
"Company Releasees"), from any and all claims, demands, causes of action, fees
and liabilities of any kind whatever, whether known or unknown, which Releasors
ever had, now have or may have against the Company Releasees by reason of any
actual or alleged act, omission, transaction, practice, conduct, occurrence or
other matter up to and including the date hereof, except that this release is
not effective as to and will in no way act as a limitation in any way as to (i)
the Company's obligations under this Agreement and (ii) as to any claims that
Bohn, Morgan or GlobalNet may have against, under or with respect to any policy
of insurance maintained by the Company for their benefit in whole or in part.
(b) The Company, Jean Pierre Collardeau and Glenn
Zargoren, and any of their Affiliates or related business entities, and any of
its or their past or present assigns and any of its past or present directors,
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officers, attorneys, agents, trustees, members, administrators and employees
(the "Company Releasors") forever releases and discharges Bohn, Morgan and
GlobalNet from any and all claims, demands, causes of action, fees and
liabilities of any kind whatsoever, whether known or unknown, which the Company
Releasers ever had, now have or may have against Bohn, Morgan and GlobalNet and
any of its affiliates or related business entities, successors and assigns and
any of its or their past or present directors, officers, attorneys, agents,
trustees, members, administrators and employees (collectively, the "GNVP
Releasees") by reason of any actual or alleged act, omission, transaction,
practice, conduct, occurrence or other matter up to and including the date
hereof, except that this release is not effective as to and will in no way act
as a limitation in any way as to (i) Bohn, Morgan and GlobalNet's obligations
under this Agreement and (ii) as to any claim that the Company Releasors may
have against, under or with respect to any policy of insurance maintained by
the Company for the benefit (in whole or in part) of the Company and/or Bohn,
Morgan or GlobalNet relating to the actions of Bohn, Morgan and GlobalNet.
5. Covenants.
(a) The GNVP Releasors each covenant, except to
the extent prohibited by law, not to commence, maintain, prosecute or
participate in any action, charge, complaint or proceeding of any kind (on his,
her or its own behalf and/or on behalf of any other person or entity and/or on
behalf of or as a member of any alleged class of persons) in any court, or
before any administrative or investigative body or agency (whether public,
quasi-public or private), except if otherwise required by law or by proper
administrative, statutory or rulemaking process or authority, against the
Company Releasers with respect to any act, omission, transaction or occurrence
which has been released under Section 4(b) hereof.
(b) The Company Releasors Covenant except to the extent
prohibited by law, not to commence, maintain, prosecute or participate in any
action, charge, complaint or proceeding of any kind in any court, or before any
administrative or investigative body or agency (whether public, quasi-public or
private), except if otherwise required by law or by proper administrative,
statutory or rulemaking process or authority, against Bohn, Morgan, GlobalNet
and the other GNVP Releasers with respect to any act, omission, transaction or
occurrence which has been released under Section 4(b) hereof.
6. Representation. Bohn, Morgan and GlobalNet, on the one hand,
and the Company, on the other, each represent that he, she or it has not
commenced, maintained, prosecuted or participated in any action, charge,
complaint or proceeding of any kind (on his, her or its own behalf and/or
behalf of any other person and/or on behalf of or as a member of any alleged
class of persons) that is presently pending in any court, or before any
administrative or investigative body or agency (whether public, quasi-public,
or private), against or involving the other party.
7. Future Cooperation. Bohn, Morgan, GlobalNet and the Company
each agree to cooperate with the others and their counsel in any action,
proceeding or litigation relating to any matter in which they were involved or
of which they have knowledge as a result of or in connection with their
relationship with the Company.
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8. Nondisparagment. Bohn, Morgan, GlobalNet and the Company will
not (and each of them shall exert their best efforts to ensure that their
respective Affiliates will not) at any time denigrate, ridicule or
intentionally criticize the Company or any of its Subsidiaries, or Bohn, Morgan
or GlobalNet or its Affiliates, or any of their respective products or
services, properties, employees, officers or directors, including, without
limitation, by way of news interviews or the expression of personal view,
opinions or judgments to the news media.
9. Confidentiality. For a period of ten years and six months
following the Effective Date, Bohn, Morgan, GlobalNet and the Company and their
respective Affiliates, shall not, without the prior written consent of the
other, divulge, disclose or make accessible to any other Person, any
Confidential Information except (a) in the course of carrying out their duties
under this Agreement or (b) when required to do so by a court of law, by any
governmental agency having supervisory authority over the business of the
Company or GlobalNet or by any administrative or legislative body (including a
committee thereof) with apparent jurisdiction to order it to divulge, disclose
or make accessible such information.
10. Non-Competition and Non-Solicitation.
(a) During the period beginning on the Effective Date
and expiring on February 8, 2003 (the "Restricted Period"), Bohn, Morgan and
GlobalNet and their Affiliates shall not, directly or indirectly whether as an
employee, consultant, partner, principal, agent, distributor, representative,
stockholder or otherwise (except that collectively they may be a stockholder of
not more than a 5% equity interest in a public company) (except when acting on
behalf of the Company), engage in any activities in any country world-wide in
which the Company or any Subsidiary then conducts business that are in
competition with the Existing Business of the Company or any Subsidiary.
(b) During the Restricted Period, Bohn, Morgan and
GlobalNet shall not directly or indirectly (i) solicit any customer of the
Company or any Subsidiary as a customer of a business competitive to an
Existing Business or (ii) solicit any Person who is employed by the Company or
any Subsidiary of the Company, other than (A) persons previously known to Bohn,
Morgan and GlobalNet and/or (B) a secretary/administrative assistant who is
employed by the Company or its Subsidiaries, to accept employment with any of
Bohn, Morgan or GlobalNet or any entity controlled, owned or operated by any of
them.
(c) Bohn, Morgan, GlobalNet and the Company each
acknowledge that the other has no adequate remedy at law and would be
irreparably harmed if any of Bohn, Morgan, GlobalNet or the Company breaches
or threatens to breach any of the provisions of Sections 7 through 10,
therefore Bohn, Morgan, GlobalNet and the Company each agree that the other
shall be entitled to temporary or permanent mandatory or injunctive relief, to
terminate or forestall any breach or threatened breach of any of those
provisions and to specific performance of the terms of each of such provisions
without the need to demonstrate irreparable injury or post bond or other
security. Bohn, Morgan, GlobalNet and the Company each further agree that they
shall not,
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in any proceeding seeking injunctive or other equitable relief to enforce the
provisions of Sections 7 through 10, raise the defense that the other has an
adequate remedy at law. Nothing in this Section 10(c) shall be construed as
prohibiting any Party from pursuing any other remedies available to it at law
or in equity or which may be otherwise available to it.
(d) If it is determined that any of the provisions of
this Section 10, or any part thereof, is unenforceable because of the duration
or geographical scope of such provision, it is the intention of the parties to
this Agreement that the duration or scope of such provision, as the case may
be, shall be reduced so that such provision becomes enforceable and, in its
reduced form, such provision shall then be enforceable and shall be enforced.
11. Intellectual Property. Any processes, inventions, ideas,
know-how and other similar data created or developed by Bohn, Morgan or
GlobalNet during the course of providing services under the Consulting
Agreement or this Agreement to the Company and which relate to the business
then conducted or under development by the Company in which Bohn, Morgan or
GlobalNet were or become directly involved (hereinafter, a "Work"), shall be the
Company's exclusive and absolute property, and each of Bohn, Morgan and
GlobalNet hereby assigns to the Company, now and hereafter, all of its right,
title and interest to any and all of the same. Any Work in connection with the
services rendered by Bohn, Morgan or GlobalNet under the Consulting Agreement
or this Agreement shall be considered "work made for hire" under the Copyright
Law of 1976 or any successor law, and the Company shall be the owner of such
Work as if the Company were the author of such Work. This provision does not
apply to proprietary processes or the intellectual property owned or otherwise
controlled by or resident with Bohn, Morgan or GlobalNet which was not created
or developed during the course of providing services under the Consulting
Agreement or this Agreement. The burden of proof of ownership of any Work
shall at all times be on the party asserting ownership.
12. Documents. At any time, for any reason, upon the Company's
request, each of Bohn, Morgan and GlobalNet and their Affiliates will promptly
return to the Company all property of the Company and its Subsidiaries in its
possession or control, including, without limitation, all copies of all
management studies, business or strategic plans, budgets, notebooks and other
printed, typed electronically stored or written materials, documents, diaries,
disks, calendars and data of or relating to the Company or its Subsidiaries or
their respective personnel or affairs.
13. Assignability; Binding Nature. This Agreement shall be binding
upon and inure to the benefit of the Parties and their respective successors
and assigns. No rights or obligations of the Company under this Agreement may
be assigned or transferred by the Company except that such rights or
obligations may be assigned or transferred pursuant to a merger or
consolidation in which the Company is not the surviving corporation, or the
sale or liquidation of all or substantially all of the assets of the Company,
provided that the assignee or transferee is the
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successor to all or substantially all of the assets of the Company and such
assignee or transferee assumes the liabilities, obligations and duties of the
Company, as contained in this Agreement, either contractually or by operation
of law. The Company further agrees that, in the event of a sale of assets or
liquidation as described in the preceding sentence, it shall take whatever
action it legally can in order to cause such assignee or transferee to
expressly assume the liabilities, obligations and duties of the Company
hereunder. No rights or obligations of Bohn, Morgan and GlobalNet under this
Agreement, other than the right to receive consideration, may be assigned or
transferred by such them.
14. Indemnification; Tax Matters. Bohn, Morgan and GlobalNet agree
to indemnify the Company, on an after tax basis, from all tax, penalties,
interest and other expenses that the Company may incur as a result of a
determination by the Internal Revenue Service or a court that the Company
failed to report any payments under the Consulting Agreement or this Agreement
as wages and/or failed to timely withhold and pay employment taxes on any such
payments.
15. Entire Agreement. This Agreement contains the entire
understanding and agreement between the Parties concerning the subject matter
hereof and supersede all prior agreements, understandings, discussions,
negotiations and undertakings, whether written or oral, between the parties
with hereto respect thereto.
16. Amendment of Waiver. No provision in this Agreement may be
amended unless such amendment is agreed to in writing and signed by each of the
parties hereto. No waiver by any party of any breach by any other party of any
condition or provision contained in this Agreement to be performed by such
other party shall be deemed a waiver of a similar or dissimilar condition or
provision at the same or any prior or subsequent time. Any waiver must be in
writing and signed by each of the parties effected by such waiver.
17. Severability. In the event that any provision or portion of
any provision of this Agreement shall be determined to be invalid or
unenforceable for any reason, in whole or in part, the remaining provisions and
portions remaining of any provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
18. Governing Law/Jurisdiction. This Agreement shall be governed
by and construed and interpreted in accordance with the laws of the State of
New York without reference to principles of conflict of laws. The parties
hereto agree that any disagreement or dispute arising directly, indirectly, or
otherwise in connection with, out of, related to, or from this Agreement, any
breach hereof, or any transaction covered hereby, or any proceeding brought by
a party to enforce any right, assert any claim, or obtain any relief whatsoever
in connection with this Agreement, shall be brought by such party and resolved
exclusively within the State of New York. Accordingly, the parties consent and
submit to the exclusive personal jurisdiction of the federal and state courts
located within the State of New York, U.S.A. The parties further agree that
any such action or proceeding brought by a party to enforce any right, assert
any claim, or obtain any relief whatsoever in connection with this Agreement
shall be brought by such party
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exclusively in the federal or state courts located within the State of New
York.
19. Notices. Any notice required or permitted hereunder to be
given to a party hereto shall be effective only if given in writing and shall
be deemed to have been given when delivered personally or sent by certified or
registered mail, postage prepaid, return receipt requested or by Federal
Express or other similar service, duly addressed to the party concerned at the
address indicated below or to such changed address as such Party may
hereinafter specify by notice to the other party:
If to the Company:
Pro Net Link Corp.
645 Fifth Avenue
Suite 303
New York, NY 10022
Attention: Jean Pierre Collardeau
with a copy to:
Kronish Lieb Weiner & Hellman LLP
1114 Avenue of the Americas
New York, NY 10036
Attention: Steven Huttler, Esq.
If to GlobalNet:
GlobalNet Venture Partners
300 Park Avenue, Suite 1700
New York, New York 10022
Attention: Andrew Entwistle, Esq.
with a copy to:
Entwistle & Cappucci LLP
400 Park Avenue
New York, New York 10022
Attention: Andrew J. Entwistle, Esq.
If to John A. Bohn:
John A. Bohn
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c/o GlobalNet Venture Partners
300 Park Avenue, Suite 1700
New York, New York 10022
with a copy to:
Entwistle & Cappucci LLP
400 Park Avenue
New York, New York 10022
Attention: Andrew J. Entwistle, Esq.
If to Karen Morgan:
Karen Morgan
c/o GlobalNet Venture Partners
300 Park Avenue, Suite 1700
New York, New York 10022
with a copy to:
Entwistle & Cappucci LLP
400 Park Avenue
New York, New York 10022
Attention: Andrew J. Entwistle, Esq
20. Execution of Agreement and Further Actions. This Agreement may
be executed in several counterpart copies each of which shall constitute an
original and the same instrument notwithstanding that both Parties are not
signatories to the same counterpart. The Parties agree to execute such other
documents and to take such other action as may be necessary or appropriate to
carry out the intent of this Agreement, provided that the same are not
inconsistent with the provisions hereof.
21. Definitions. As used in this Agreement, unless the context
otherwise requires:
(a) "Affiliate" of a Person means a Person that directly
or indirectly controls, is controlled by, or is under common control with the
Person or other entity specified.
(b) "Confidential Information" means all information that
is not known or available to the public concerning the business of the Company
or any Subsidiary of the Company relating to its products, product development,
software, trade secrets, customers,
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suppliers, finances, and business plans and strategies. For avoidance of doubt,
"Confidential Information" shall include any proprietary information technology,
know how or process of the Company related to (X) the Master Trade Logic
software and (Y) virtual trade shows. For this purpose, information known or
available generally within the trade or industry of the Company, or any
Subsidiary of either party, shall be deemed to be known or available to the
public. Confidential Information shall include information that is, or becomes,
known to the public as a result of a breach by any party of the provisions of
Section 9.
(c) "Existing Business" means the business of an Internet
portal integrating, among other things, trade-related news and information
relating to procurement, financing, logistics, insurance, compliance,
regulations, and trade forms with access to trade contacts and resources
throughout the world.
(d) "Person" means an individual, firm, corporation,
trust, joint venture, partnership, limited liability company, association,
unincorporated organization or other entity or any governmental body or
subdivision, agency, commission or authority thereof.
(e) "Subsidiary" means any Person of which the Company or
GlobalNet, as the case may be, owns, directly or indirectly, more than 50% of
the voting stock or, in the case of a Person other than a corporation, more
than 50% of the equity or voting interest.
24. Construction. (a) The captions or headings of the sections
contained in this Agreement are for convenience only and shall not be deemed to
control or affect the meaning or construction of any provision of this
Agreement
(b) References to sections, or other subdivisions are to
the appropriate subdivisions of this Agreement unless otherwise stated. The
words "herein," "hereof," "hereby" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular section or
other subdivision unless otherwise stated.
25. Authority; No Breach of Other Agreements. Each party hereto
warrants and represents to each of the other parties that he, she or it is
lawfully entitled to enter into and perform this Agreement and that the
execution and performance by such party does not infringe upon any agreements
or covenants to which such party is a party.
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first written above.
PRO NET LINK CORP.
By: /s/ Jean Pierre Callardeau
-----------------------------
Name: Jean Pierre Collardeau
Individually and as
President of Pro Net
Link Corp.
By: /s/ Glenn Zagoren
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Name: Glenn Zagorean
Individually and as
Chairman of Pro Net Link
Corp.
GLOBALNET VENTURE
PARTNERS, LLC
By: /s/ Andrew J. Etwistle
-----------------------------
Name: Andrew J. Entwistle, Esq.
Title: Managing Member
/s/ John A. Bohn
--------------------------------
John A. Bohn
/s/ Karen Morgan
--------------------------------
Karen Morgan
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