UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act Of 1934
Date of Report (Date of earliest event reported): October 15, 2006
Global Telecom & Technology, Inc.
(Exact Name of Registrant as Specified in its Charter)
         
Delaware   000-51211   202096338
         
(State or Other
Jurisdiction of Incorporation) 		  (Commission File Number)   (IRS Employer
Identification No.)
11911 Freedom Drive, Suite 590
Reston, VA 20190
 
(Address of principal executive offices) (Zip Code)
Registrant’s Telephone Number, Including Area Code: (703) 995-5534           
Mercator Partners Acquisition Corp.
 
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( See General Instruction A.2. below):
o   Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
o   Soliciting material pursuant to Rule 14a- 12 under the Exchange Act (17 CFR 240.14a- 12)
 
o   Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
o   Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 

 

 

TABLE OF CONTENTS

Item 1.01. Entry Into a Material Definitive Agreement
Item 2.01. Completion of Acquisition or Disposition of Assets.
Item 3.02. Unregistered Sales of Equity Securities
Item 3.03. Material Modification to Rights of Security Holders
Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers.
Item 5.03. Amendments to Articles of Incorporation or Bylaws.
Item 5.06. Change in Shell Company Status
Item 9.01 Financial Statements and Exhibits
SIGNATURES
Item 1.01. Entry Into a Material Definitive Agreement
     On October 15, 2006, in connection with the closing (the “ Closing ”) of the acquisitions of Global Internetworking, Inc. (“ GII ”) and European Telecommunications & Technology Limited (“ ETT ”) described in Item 2.01 below, Global Telecom & Technology, Inc., formerly known as Mercator Partners Acquisition Corp. (the “ Company ”) entered into the agreements described below.
Employment Agreement with H. Brian Thompson
     The Company entered into an employment agreement with H. Brian Thompson, pursuant to which Mr. Thompson serves as the Company’s executive chairman, effective as of October 15, 2006, on an at-will basis. The employment agreement provides that Mr. Thompson’s duties as executive chairman will include: (1) serving as the chairman of the Company’s board of directors (the “ Board ”), (2) overseeing the Company’s other executive and senior officers, (3) assisting in the development and oversight of the Company’s strategic plan, (4) coordinating and overseeing the integration of the Company’s business units and subsidiaries, (5) accessing industry contacts to promote the Company’s business, (6) overseeing the Company’s efforts in connection with potential acquisitions and (7) such other duties as the Board may reasonably assign to him from time to time.
     Pursuant to the terms of the employment agreement, Mr. Thompson will receive an initial salary of $150,000 per year, and will also receive a grant of 50,000 shares of restricted stock, with vesting to occur in equal installments on the first four anniversary dates of the commencement of the employment term.
     The employment agreement provides that Mr. Thompson will devote his best efforts and as much time as is required to execute his responsibilities and duties under the agreement. Mr. Thompson is permitted to accept engagements with other companies during the term of the employment agreement, provided that the engagements do not interfere with his responsibilities and duties under the employment agreement. Pursuant to the terms of the employment agreement, Mr. Thompson also entered into a confidentiality and noncompetition agreement with the Company upon the commencement of his employment.
Employment Agreement with D. Michael Keenan
     The Company entered into an employment agreement with D. Michael Keenan, pursuant to which Mr. Keenan serves as the Company’s chief executive officer, effective as of October 15, 2006. The employment agreement provides that Mr. Keenan will receive an initial salary of $250,000 per year. Mr. Keenan will also be eligible to earn a bonus of up to $250,000 during his first year of employment with the Company, with one-half of the bonus to be based upon an evaluation of his performance against reasonable performance criteria set by the Board and communicated to Mr. Keenan, and one-half to be awarded in the Board’s sole discretion. Mr. Keenan will also receive a grant of 150,000 shares of restricted stock, with vesting to occur in equal installments on the first four anniversary dates of the effective date of the employment agreement.

 

 

     The employment agreement provides that Mr. Keenan will not compete with the Company during the period of his employment and continuing until the later of October 15, 2009 or one year following the termination of his employment with the Company. In addition, Mr. Keenan has agreed not to solicit the Company’s customers, employees or consultants during the same period. Pursuant to the terms of the employment agreement, Mr. Keenan also entered into an assignment of inventions and confidentiality agreement, pursuant to which he has agreed to maintain in confidence all of the Company’s proprietary information, and to assign to the Company any inventions conceived by him in the course of his employment with the Company.
     The employment agreement will remain in effect until it is terminated under any of the following circumstances: (1) upon Mr. Keenan’s death, (2) upon the disability of Mr. Keenan that prevents him from performing his duties to the Company for a period of more than 180 days in the aggregate in any 12-month period, (3) upon written notice from the Company, terminating his employment for “cause,” as defined in the employment agreement, (4) upon notice from the Company, terminating his employment without “cause,” (5) upon written notice from Mr. Keenan, terminating his employment for “good reason,” as defined in the employment agreement or (6) upon not less than 30 days notice from Mr. Keenan, terminating his employment other than for “good reason.”
     Mr. Keenan or his beneficiaries or estate will be entitled to severance payments upon the termination of his employment under some circumstances, as follows. In the event of Mr. Keenan’s death, his beneficiaries or estate would be entitled to receive an amount equal to the average of the annual bonuses paid to Mr. Keenan on account of the last three completed fiscal years, plus vesting of a pro rata portion of the restricted stock granted to Mr. Keenan pursuant to the employment agreement, calculated as if vesting was on a monthly basis over a 48-month period. In the event of Mr. Keenan’s disability, he would be entitled to receive those same benefits, as well as continuation of health benefits for 12 months following the termination of his employment. In the event Mr. Keenan’s employment is terminated by the Company without cause, or by Mr. Keenan for good reason, he would be entitled to receive the continuation of salary and health benefits for 12 months following the termination of his employment, plus an amount equal to the average of the annual bonuses paid to Mr. Keenan on account of the last three completed fiscal years (but in any event not less than two-thirds of the maximum bonus payable under the employment agreement), as well as vesting of all restricted stock granted to Mr. Keenan pursuant to the employment agreement.
      Employment Agreement with Todd Vecchio
     GII entered into an employment agreement with Todd Vecchio, pursuant to which Mr. Vecchio serves as GII’s senior vice president, effective as of October 15, 2006. The employment agreement provides that Mr. Vecchio will receive an initial salary of $200,000 per year. Mr. Vecchio will also be eligible to earn a bonus of up to $200,000 during his first year of employment with GII with one-half of the bonus to be based upon an evaluation of his performance against reasonable performance criteria set by the Board and communicated to Mr. Vecchio, and one-half to be awarded in the Board’s sole discretion. Mr. Vecchio will also receive a grant of 120,000 shares of restricted stock of the company, with vesting to occur in equal installments on the first four anniversary dates of the effective date of the employment agreement.

 

 

     The employment agreement provides that Mr. Vecchio will not compete with the Company during the period of his employment and continuing until the later of October 15, 2009 or one year following the termination of his employment with the Company. In addition, Mr. Vecchio has agreed not to solicit the Company’s customers, employees or consultants during the same period. Pursuant to the terms of the employment agreement, Mr. Vecchio also entered into an assignment of inventions and confidentiality agreement, pursuant to which he has agreed to maintain in confidence all of the Company’s proprietary information, and to assign to the Company any inventions conceived by him in the course of his employment with the Company.
     The employment agreement will remain in effect until it is terminated under any of the following circumstances: (1) upon Mr. Vecchio’s death, (2) upon the disability of Mr. Vecchio that prevents him from performing his duties to GII for a period of more than 180 days in the aggregate in any 12-month period, (3) upon written notice from GII, terminating his employment for “cause,” as defined in the employment agreement, (4) upon notice from GII, terminating his employment without “cause,” (5) upon written notice from Mr. Vecchio, terminating his employment for “good reason,” as defined in the employment agreement or (6) upon not less than 30 days notice from Mr. Vecchio, terminating his employment other than for “good reason.”
     Mr. Vecchio or his beneficiaries or estate will be entitled to severance payments upon the termination of his employment under some circumstances, as follows. In the event of Mr. Vecchio’s death, his beneficiaries or estate would be entitled to receive vesting of a pro rata portion of the restricted stock granted to Mr. Vecchio pursuant to the employment agreement, calculated as if vesting was on a monthly basis over a 48-month period. In the event of Mr. Vecchio’s disability, he would be entitled to receive those same benefits, as well as continuation of health benefits for 12 months following the termination of his employment. In the event Mr. Vecchio’s employment is terminated by GII without cause, or by Mr. Vecchio for good reason, he would be entitled to receive the continuation of salary and health benefits for 12 months following the termination of his employment, plus vesting of all restricted stock granted to Mr. Vecchio pursuant to the employment agreement.
      Lock-up Letters Executed by the Stockholders of GII
     In connection with the acquisition of GII, and the issuance of the Company’s common stock and warrants to the stockholders of GII, each of the stockholders of GII, including Messrs. Keenan and Vecchio, entered into a lock-up letter agreement with the Company (the “ Lock-up Letters ”). Each of the Lock-up Letters prohibits the GII stockholders from selling or transferring any common stock of the Company (i) issued to the GII stockholders in connection with the acquisition of GII or (ii) acquired through the exercise of warrants issued to the GII stockholders in connection with the acquisition of GII (the “ Lock-Up Shares ”).
     Six months after the Closing, the stockholders of GII may sell or transfer up to 50% of that number of Lock-up Shares that would be permitted to be sold pursuant to Rule 145 promulgated under the Securities Act of 1933, as amended, in any consecutive three month period. 18 months following the Closing, the stockholders of GII may freely sell or transfer their Lock-up Shares.

 

 

      Promissory Notes Issued to the Stockholders of GII and ETT
     In connection with the acquisition of GII, the Company issued a series of promissory notes to the stockholders of GII, including Messrs. Keenan and Vecchio, totaling $5.25 million. The first series of promissory notes issued to the stockholders of GII totaled $4.0 million (the “ Initial Promissory Notes ”) and the second series of promissory notes issued to the stockholders of GII totaled $1.25 million (the “ Closing Promissory Notes ”). The Closing Promissory Notes were issued in lieu of a portion of the cash consideration otherwise payable pursuant to the terms of the Stock Purchase Agreement (as defined below). In connection with the acquisition of ETT, the Company issued promissory notes to certain stockholders of ETT totaling approximately $4.7 million, in lieu of a portion of the cash consideration otherwise payable to these stockholders in exchange for their shares of stock of ETT (the “ ETT Promissory Notes ”). The ETT Promissory Notes and the Closing Promissory Notes are substantially the same.
     Each Initial Promissory Note bears an interest rate of six percent per annum. 50% of the accrued interest and unpaid principal is due and payable to the holders on December 31, 2006. The remaining 50% of the accrued interest and unpaid principal is due and payable to the holders on December 31, 2007. Any amounts due and not yet paid shall be paid to the holders no later than December 31, 2008. All accrued interest and unpaid principal shall be immediately due and payable upon the earliest of (i) a change of control of the Company, (ii) the exercise, by the holders thereof, of no less than 50% of their Class W and Class Z warrants or (iii) the issuance by the Company of debt or equity securities resulting in an aggregate capital raise by the Company of $20.0 million.
     The Initial Promissory Notes are subordinate to any senior indebtedness of the Company. The Initial Promissory Notes may be prepaid in whole or in part at any time by the Company.
     Each Closing Promissory Note and ETT Promissory Note bears an interest rate of six percent per annum. The entire principal balance of the Closing Promissory Notes and the ETT Promissory Notes, together with all accrued and unpaid interest, are due and payable on June 30, 2007. Any amount payable by the Company after June 30, 2007 shall bear an interest rate of eight percent per annum until paid. The Closing Promissory Notes and the ETT Promissory Notes may be prepaid in whole or in part at any time by the Company.
Item 2.01. Completion of Acquisition or Disposition of Assets.
     On October 15, 2006, the Company acquired all of the outstanding capital stock of GII pursuant to a stock purchase agreement dated May 23, 2006, as amended (the “ Stock Purchase Agreement ”). At the closing of the transactions contemplated by the Stock Purchase Agreement, the Company paid the GII stockholders $12.75 million in cash (less approximately $987,000 which was paid to GII option holders in cancellation of their options), $5.25 million in promissory notes, 1,300,000 shares of the Company’s common stock, 1,450,000 of the Company’s Class W warrants and 1,450,000 of the Company’s Class Z warrants.
     On October 15, 2006, the Company acquired all of the outstanding capital stock of ETT pursuant to an offer made to its stockholders under the laws of England and Wales (the “ Offer ”). Upon the consummation of the offer, the Company paid the ETT stockholders $32.3 million in cash, less expenses, and $4.7 million in promissory notes.

 

 

     Reference is made to the disclosure set forth under Item 1.01 of this Current Report on Form 8-K concerning the promissory notes issued to the stockholders of GII and ETT.
     On October 16, 2006, the Company issued a press release announcing the closing of the transactions contemplated by the Stock Purchase Agreement and the Offer (the “ Acquisitions ”), a copy of which is attached to this Current Report on Form 8-K as Exhibit 99.1.
     In connection with the approval of the Acquisitions, the Company’s stockholders adopted (1) an amendment and restatement of the Company’s amended and restated certificate of incorporation (the “ Second Restated Charter ”) to (a) change the Company’s name from “Mercator Partners Acquisition Corp.” to “Global Telecom & Technology, Inc.,” (b) increase the number of shares of common stock the Company is authorized to issue from 40,000,000 to 80,000,000 and (c) remove Article SIXTH of the amended and restated certificate of incorporation as it was only applicable to the Company prior to its completion of the Acquisitions; (2) the Mercator 2006 Employee, Director and Consultant Stock Plan; and (3) elected eight persons to the Company’s board of directors to hold office until the Company’s next annual meeting of stockholders or until their successors are duly elected and qualified.
     Upon the filing of the Second Restated Charter, the Company changed its name to Global Telecom & Technology, Inc.
Business
     The business of the Company is described in the Definitive Proxy Statement (No. 000-51211), dated October 2, 2006, in the Sections entitled “Information about GII” and “Information about ETT” beginning on pages 65 and 73, respectively, and is incorporated herein by reference.
Risk Factors
     The risks associated with the Company’s business are described in the Definitive Proxy Statement (No. 000-51211), dated October 2, 2006, in the Section entitled “Risk Factors” beginning on page 16 and is incorporated herein by reference.
Financial Information
     Reference is made to the disclosure set forth under Items 2.02 and 9.01 of this Current Report on Form 8-K concerning the financial information of the Company.
Employees
     The employees of the Company are described in the Definitive Proxy Statement (No. 000-51211), dated October 2, 2006, in the Sections entitled “Information about GII — Employees,” “Information about ETT — Employees” and “Information about Mercator — Employees” on pages 73, 81 and 112, respectively, and is incorporated herein by reference.

 

 

Properties
     The facilities of the Company are described in the Definitive Proxy Statement (No. 000-51211), dated October 2, 2006, in the Sections entitled “Information about GII — Properties,” “Information about ETT — Properties” and “Information about Mercator — Facilities” on pages 73, 81 and 112, respectively, and is incorporated herein by reference.
Security Ownership of Certain Beneficial Owners and Management
     The beneficial ownership of the Company’s common stock immediately after the consummation of the acquisitions is described in the Definitive Proxy Statement (No. 000-51211), dated October 2, 2006, in the Section entitled “Beneficial Ownership of Securities” beginning on page 141 and is incorporated herein by reference.
Directors and Executive Officers
     The directors and executive officers of the Company upon the consummation of the acquisitions are described in the Definitive Proxy Statement (No. 000-51211), dated October 2, 2006, in the Section entitled “Our Directors and Management Following the Acquisition” beginning on page 131 and is incorporated herein by reference.
Executive Compensation
     The executive compensation of the Company’s executive officers and directors is described in the Definitive Proxy Statement (No. 000-51211), dated October 2, 2006, in the Section entitled “Our Directors and Management Following the Acquisition — Executive Compensation” beginning on page 135 and is incorporated herein by reference.
Certain Relationships and Related Transactions
     The certain relationships and related party transactions are described in the Definitive Proxy Statement (No. 000-51211), dated October 2, 2006, in the Section entitled “Certain Relationships and Related Transactions” beginning on page 139 and is incorporated herein by reference.
     Reference is made to the disclosure set forth under Item 1.01 of this Current Report on Form 8-K concerning certain related party transactions.
Legal Proceedings
     The legal proceedings of the Company are described in the Definitive Proxy Statement (No. 000-51211), dated October 2, 2006, in the Sections entitled “Information about GII — Legal Proceedings,” “Information about ETT — Legal Proceedings” and “Information about Mercator — Legal Proceedings” on pages 73, 81 and 113, respectively, and is incorporated herein by reference.

 

 

Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters
     The Company’s Class B common stock ceased trading on the Over-the-Counter Bulletin Board and was automatically converted into, and began trading as, the Company’s common stock on October 16, 2006 under the symbol MPAQ.
     The market price of and dividends of the Company’s common stock and related stockholder matters are described in the Definitive Proxy Statement (No. 000-51211), dated October 2, 2006, in the Section entitled “Price Range of Securities and Dividends” on page 145 and is incorporated herein by reference.
Recent Sales of Unregistered Securities
     Reference is made to the disclosure set forth under Item 3.02 of this Current Report on Form 8-K, which disclosure is incorporated herein by reference, concerning the recent sales of unregistered securities.
Indemnification of Directors and Officers
     The Second Restated Charter and the Company’s bylaws provide that each of the Company’s directors and officers shall be entitled to be indemnified by the Company to the fullest extent permitted by law. The Second Restated Charter provides that the Company may indemnify to the fullest extent permitted by law all employees of the Company. The Company’s bylaws provide that, if authorized by the board of directors, the Company may indemnify any other person whom it has the power to indemnify under section 145 of the Delaware General Corporation Law.
     Paragraph B of Article Eight of the Second Restated Charter provides:
     “The Corporation shall indemnify to the fullest extent permitted by law any person made or threatened to be made a party to an action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate is a was a director or officer of the Corporation or any predecessor of the Corporation or serves or served at any other enterprise as a director or officer as the request of the Corporation or predecessor Corporation.”
     Paragraph C of Article Eight of the Second Restated Charter provides:
     “The Corporation may indemnify to the fullest extent permitted by law any person made or threatened to be made a party to any action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate is or was an employee of the Corporation or any predecessor of the Corporation or serves or served at any other enterprise as an employee at the request of the Corporation or any predecessor to the Corporation.”
     Section 145 of the Delaware General Corporation Law concerning indemnification of officers, directors, employees and agents is set forth below.
     “Section 145. Indemnification of officers, directors, employees and agents; insurance.

 

 

     (a) A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.
     (b) A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
     (c) To the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
     (d) Any indemnification under subsections (a) and (b) of this section (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections (a) and (b) of this section. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders.

 

 

     (e) Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the corporation deems appropriate.
     (f) The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office.
     (g) A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under this section.
     (h) For purposes of this section, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this section with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued.
     (i) For purposes of this section, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to “serving at the request of the corporation” shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the corporation” as referred to in this section.
     (j) The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

 

 

     (k) The Court of Chancery is hereby vested with exclusive jurisdiction to hear and determine all actions for advancement of expenses or indemnification brought under this section or under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. The Court of Chancery may summarily determine a corporation’s obligation to advance expenses (including attorneys’ fees).”
     Insofar as indemnification for liabilities arising under the Securities Act may be permitted to the Company’s directors, officers, and controlling persons pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment of expenses incurred or paid by a director, officer or controlling person in a successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to the court of appropriate jurisdiction the question whether such indemnification by the Company is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
Financial Statements and Supplementary Data
     Reference is made to the disclosure set forth under Item 9.01 of this Current Report on Form 8-K concerning the financial statements and supplementary data of the Company.
Financial Statements and Exhibits
     Reference is made to the disclosure set forth under Item 9.01 of this Current Report on Form 8-K concerning the financial information of the Company.
Item 3.02. Unregistered Sales of Equity Securities
     Reference is made to the disclosure described in the Definitive Proxy Statement (No. 000-51211), dated October 2, 2006, in the Section entitled “The Stock Purchase Agreement with GII - Purchase Price” beginning on page 46, which is incorporated herein by reference. The Company has claimed an exemption from registration under Section 4(2) of the Securities Act of 1933 for the shares and warrants issued in the acquisition of GII.
Item 3.03. Material Modification to Rights of Security Holders
     Reference is made to the disclosure described in the Definitive Proxy Statement (No. 000-51211), dated October 2, 2006, in the Section entitled “The Charter Amendment Proposal” on page 56, which is incorporated herein by reference.

 

 

Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers.
     Effective as of the closing of the Acquisitions, H. Brian Thompson resigned as the chief executive officer of the Company, Lior Samuelson resigned as a director and executive vice president of the Company, David Ballarini resigned as a director of the Company and Rhodric C. Hackman resigned as president of the Company. H. Brian Thompson, D. Michael Keenan, Rhodric C. Hackman, Morgan E. O’Brien, Alex Mandl, Didier Delepine, Howard Janzen and Sudhakar Shenoy were elected as directors of the Company. In addition, H. Brian Thompson was appointed as Chairman of the Board and Executive Chairman of the Company and D. Michael Keenan was appointed Chief Executive Officer of the Company. Reference is made to the disclosure described in the Definitive Proxy Statement (No. 000-51211), dated October 2, 2006 in the Section entitled “Our Directors and Management Following the Acquisition” on page 131, which is incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws.
     In connection with the Acquisitions described above, the Charter of the Company was amended and restated. The Second Restated Amended Charter, which is attached as Exhibit 3.1 to this Current Report on Form 8-K, was filed with the Delaware Secretary of State on October 16, 2006, and all amendments reflected therein were effective on that date. Reference is made to the disclosure set forth under Item 2.01 of this Current Report on Form 8-K concerning the amendment and restatement of the Charter and to the disclosure described in the Definitive Proxy Statement (No. 000-51211), dated October 2, 2006, in the Section entitled “The Charter Amendment Proposal” on page 56, which is incorporated herein by reference.
     The Company also amended its bylaws in the form attached as Exhibit 3.2 to this Current Report on Form 8-K, effective October 15, 2006.
Item 5.06. Change in Shell Company Status
     As described in Item 2.01, on October 15, 2006, the Company completed the acquisition of GII and ETT. As a result of these acquisitions, the Company is no longer a shell company as defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended.
Item 9.01 Financial Statements and Exhibits
Financial Statements
     The financial statements and selected financial information of the Company are included in the Definitive Proxy Statement (No. 000-51211), dated October 2, 2006, in the Sections entitled “Selected Historical Financial Information,” “ Selected Unaudited Condensed Consolidated Pro Forma Financial Information” and “Index to Financial Statements” beginning on pages 11, 13 and F-1, respectively, and are incorporated herein by reference.
     
Exhibit    
Number   Description
 
   
3.1
  Second Amended and Restated Certificate of Incorporation, dated October 16, 2006
 
   
3.2
  Amended and Restated Bylaws, dated October 15, 2006
 
   
10.1
  Employment Agreement for H. Brian Thompson, dated October 15, 2006
 
   
10.2
  Employment Agreement for D. Michael Keenan, dated October 15, 2006
 
   
10.3
  Employment Agreement for Todd Vecchio, dated October 15, 2006
 
   
10.4
  Form of Promissory Note issued to the stockholders of Global Internetworking, Inc., dated October 15, 2006, and schedule of details omitted therefrom
 
   
10.5
  Form of Promissory Note issued to stockholders of Global Internetworking, Inc. and European Telecommunications & Technology Limited, dated October 15, 2006, and schedule of details omitted therefrom
 
   
10.6
  Form of Lock-up letter agreements entered into by the registrant and the stockholders of Global Internetworking, Inc., dated October 15, 2006
 
   
10.7
  Mercator 2006 Employee, Director and Consultant Stock Plan (included as Annex E of the Definitive Proxy Statement (No. 000-51211), dated October 2, 2006 and incorporated by reference herein).
 
   
99.1
  Press Release of the registrant dated October 16, 2006

 

 

SIGNATURES
     Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: October 19, 2006
         
  MERCATOR PARTNERS ACQUISITION CORP.
  		 
  By:   /s/ D. Michael Keenan    
    D. Michael Keenan   
    President   

 

 

         
EXHIBIT INDEX
     
Exhibit    
Number   Description
 
   
3.1
  Second Amended and Restated Certificate of Incorporation, dated October 16, 2006
 
   
3.2
  Amended and Restated Bylaws, dated October 15, 2006
 
   
10.1
  Employment Agreement for H. Brian Thompson, dated October 15, 2006
 
   
10.2
  Employment Agreement for D. Michael Keenan, dated October 15, 2006
 
   
10.3
  Employment Agreement for Todd Vecchio, dated October 15, 2006
 
   
10.4
  Form of Promissory Note issued to the stockholders of Global Internetworking, Inc., dated October 15, 2006
 
   
10.5
  Form of Promissory Note issued to stockholders of Global Internetworking, Inc. and European Telecommunications & Technology Limited, dated October 15, 2006
 
   
10.6
  Form of Lock-up letter agreements entered into by the registrant and the stockholders of Global Internetworking, Inc., dated October 15, 2006
 
   
10.7
  Mercator 2006 Employee, Director and Consultant Stock Plan (included as Annex E of the Definitive Proxy Statement (No. 000-51211), dated October 2, 2006 and incorporated by reference herein).
 
   
99.1
  Press Release of the registrant dated October 16, 2006

 

 

SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MERCATOR PARTNERS ACQUISITION CORP.
 
Pursuant to Sections 242 and 245 of the
Delaware General Corporation Law
 
     Mercator Partners Acquisition Corp., a corporation existing under the laws of the state of Delaware, by its Chief Executive Officer, hereby certifies as follows:
     1. The name of the Corporation is “Mercator Partners Acquisition Corp.”
     2. The Corporation’s original Certificate of Incorporation was filed in the office of the Secretary of State of the State of Delaware on January 3, 2005 and an Amended and Restated Certificate of Incorporation was filed in the office of the Secretary of State of the State of Delaware on February 22, 2005. (collectively, the “ Charter ”).
     3. This Second Amended and Restated Certificate of Incorporation restates, integrates and amends the Charter.
     4. This Second Amended and Restated Certificate of Incorporation was duly adopted by a written consent of the directors and by a vote of the majority of stockholders of the Corporation at a special meeting called for such purpose, in accordance with the applicable provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware (the “ GCL ”).
     5. The text of the Charter is hereby further amended and restated to read in full as follows:
          FIRST: The name of the corporation is Global Telecom & Technology, Inc. (hereinafter sometimes referred to as the “Corporation”).
          SECOND: The registered office of the Corporation is to be located at 874 Walker Road, Suite C, Dover, Delaware. The name of its registered agent at that address is United Corporate Services Inc.
          THIRD: The purpose of the Corporation shall be to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “ GCL ”).
          FOURTH: (a) Authorized Stock . The total number of shares of all classes of capital stock which the Corporation shall have authority to issue is 80,005,000 of which:

 

 

                    (i) 80,000,000 shares shall be Common Stock, with a par value of $.0001 per share; and
                    (ii) 5,000 shares shall be Preferred Stock, with a par value of $.0001 per share.
               (b) Preferred Stock . The Board of Directors is expressly granted authority to issue shares of the Preferred Stock, in one or more series, and to fix for each such series such voting powers, full or limited, and such designations, preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof as shall be stated and expressed in the resolution or resolutions adopted by the Board of Directors providing for the issue of such series (a “Preferred Stock Designation”) and as may be permitted by the GCL. The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of all of the then outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, without a separate vote of the holders of the Preferred Stock, or any series thereof, unless a vote of any such holders is required pursuant to any Preferred Stock Designation.
               (c) Common Stock .
                    (i) Dividends . Subject to the preferential dividend rights applicable to shares of Preferred Stock, the holders of shares of Common Stock shall be entitled to receive only such dividends as may be declared by the Board of Directors.
                    (ii) Liquidation . In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, after distribution in full of the preferential amounts to be distributed to the holders of shares of Preferred Stock, the holders of shares of Common Stock shall be entitled, ratably, in proportion to the number of shares held by them, to receive all of the remaining assets of the Corporation available for distribution to holders of Common Stock.
                    (iii) Voting Rights . Except as otherwise required by statute or as otherwise provided in this Second Amended and Restated Certificate of Incorporation, each outstanding share of Common Stock shall be entitled to vote on each matter on which the stockholders of the Corporation shall be entitled to vote and each holder of Common Stock shall be entitled to one vote for each share of such stock held by such holder.
                    (iv) Conversion . The holders of shares of Common Stock shall have no conversion rights under any circumstances.
          FIFTH: (a) The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors may exercise all such authority and powers of the Corporation and do all such lawful acts and things as are not by statute or this Second Amended and Restated Certificate of Incorporation directed or required to be exercised or done by the stockholders of the Corporation. The number of directors of the Corporation shall be fixed from time to time in the manner provided in the Bylaws of the Corporation. The directors of the Corporation shall not be classified into separate classes and all directors shall be elected to a new term of office at each annual meeting of the stockholders of the Corporation.

 

 

               (b) Except as the GCL may otherwise require, in the interim between annual meetings of stockholders or special meetings of stockholders called for the election of directors and/or the removal of one or more directors and the filling of any vacancy in that connection, newly created directorships and any vacancies in the Board of Directors, including unfilled vacancies resulting from the removal of directors for cause, may be filled by the vote of a majority of the remaining directors then in office, although less than a quorum (as defined in the Corporation’s Bylaws), or by the sole remaining director. All directors shall hold office until the expiration of their respective terms of office and until their successors shall have been elected and qualified. A director elected to fill a vacancy resulting from the death, resignation or removal of a director shall serve for the remainder of the full term of the director whose death, resignation or removal shall have created such vacancy and until his successor shall have been elected and qualified.
          SIXTH: The Corporation is to have perpetual existence.
          SEVENTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders:
               (a) Election of directors need not be by ballot unless the Bylaws of the Corporation so provide.
               (b) The Board of Directors shall have the power, without the assent or vote of the stockholders, to make, alter, amend, change, add to or repeal the Bylaws of the Corporation as provided in the Bylaws of the Corporation.
               (c) The directors in their discretion may submit any contract or act for approval or ratification at any annual meeting of the stockholders or at any meeting of the stockholders called for the purpose of considering any such act or contract, and any contract or act that shall be approved or be ratified by the vote of the holders of a majority of the stock of the Corporation which is represented in person or by proxy at such meeting and entitled to vote thereat (provided that a lawful quorum of stockholders be there represented in person or by proxy) shall be as valid and binding upon the Corporation and upon all the stockholders as though it had been approved or ratified by every stockholder of the Corporation, whether or not the contract or act would otherwise be open to legal attack because of directors’ interests, or for any other reason.
               (d) In addition to the powers and authorities hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation; subject, nevertheless, to the provisions of the GCL, this Second Amended and Restated Certificate of Incorporation, and any Bylaws from time to time duly adopted made by the stockholders; provided, however, that no bylaw so adopted shall invalidate any prior act of the directors.

 

 

          EIGHT: (a) To the fullest extend permitted by the GCL as the same exists or as may hereafter be amended, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director.
               (b) The Corporation shall indemnify to the fullest extent permitted by law any person made or threatened to be made a party to an action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate is or was a director or officer of the Corporation or any predecessor of the Corporation or serves or served at any other enterprise as a director or officer at the request of the Corporation or any predecessor to the Corporation.
               (c) The Corporation may indemnify to the fullest extent permitted by law any person made or threatened to be made a party to an action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate is or was an employee of the Corporation or any predecessor of the Corporation or serves or served at any other enterprise as an employee at the request of the Corporation or any predecessor to the Corporation.
               (d) Neither any amendment nor repeal of this Article EIGHT, nor the adoption of any provision of this Second Amended and Restated Certificate of Incorporation inconsistent with this Article EIGHT, shall eliminate or reduce the effect of this Article EIGHT, in respect of any matter occurring, or any action or proceeding accruing or arising or that, but for this Article EIGHT, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.
          NINTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation.

 

 

     IN WITNESS WHEREOF, the Corporation has caused this Second Amended and Restated Certificate of Incorporation to be signed by D. Michael Keenan, its Chief Executive Officer, as of the 16 th day of October, 2006.
         
     
  /s/ D. Michael Keenan    
  D. Michael Keenan, Chief Executive Officer   
     
 

 

 

AMENDED AND RESTATED BY-LAWS
OF
GLOBAL TELECOM & TECHNOLOGY, INC.
TABLE OF CONTENTS
         
ARTICLE 1. OFFICES
    1  
Section 1. DELAWARE REGISTERED OFFICE
    1  
Section 2. OTHER OFFICES
    1  
ARTICLE 2. MEETINGS OF STOCKHOLDERS
    1  
Section 1. MEETING
    1  
Section 2. SPECIAL MEETINGS
    1  
Section 3. NOTICE OF MEETINGS
    1  
Section 4. QUORUM AND ADJOURNMENTS
    1  
Section 5. ORGANIZATION
    2  
Section 6. PROXIES AND VOTING OF SHARES
    2  
Section 7. VOTING LIST OF STOCKHOLDERS
    3  
Section 8. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING
    3  
ARTICLE 3. DIRECTORS
    3  
Section 1. POWER AND DUTIES OF THE BOARD OF DIRECTORS
    3  
Section 2. NUMBER AND QUALIFICATIONS
    3  
Section 3. ELECTION AND TERM
    4  
Section 4. REGULAR MEETINGS; NOTICE
    4  
Section 5. SPECIAL MEETINGS
    4  
Section 6. NOTICE OF SPECIAL MEETINGS
    4  
Section 7. QUORUM
    4  
Section 8. ORGANIZATION
    5  
Section 9. COMPENSATION OF DIRECTORS
    5  
Section 10. COMMITTEES
    5  
Section 11. WRITTEN CONSENTS
    6  
Section 12. CONFERENCE TELEPHONE MEETINGS
    6  
ARTICLE 4. OFFICERS
    6  
Section 1. NUMBER AND ELECTION
    6  
Section 2. TERM OF OFFICE AND QUALIFICATION
    6  
Section 3. OTHER OFFICERS
    6  
Section 4. CHIEF EXECUTIVE OFFICER
    7  
Section 5. THE PRESIDENT
    7  
Section 6. VICE PRESIDENTS; INCLUDING EXECUTIVE VICE PRESIDENTS
    7  
Section 7. THE COMPTROLLER
    7  
Section 8. ASSISTANT COMPTROLLERS
    7  
Section 9. THE SECRETARY
    7  
Section 10. ASSISTANT SECRETARIES
    8  
Section 11. THE TREASURER
    8  

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Section 12. ASSISTANT TREASURERS
    8  
Section 13. COMPENSATION
    8  
Section 14. BONDS
    9  
ARTICLE 5. RESIGNATIONS AND REMOVALS
    9  
Section 1. RESIGNATIONS
    9  
Section 2. REMOVALS
    9  
ARTICLE 6. VACANCIES
    9  
Section 1. AMONG DIRECTORS
    9  
Section 2. AMONG OFFICERS, ETC
    10  
ARTICLE 7. NOTICES
    10  
Section 1. MANNER OF GIVING
    10  
Section 2. WAIVER OF NOTICE
    10  
ARTICLE 8. CAPITAL STOCK
    10  
Section 1. FORM AND ISSUANCE
    10  
Section 2. TRANSFERS OF STOCK
    11  
Section 3. LOST, STOLEN AND DESTROYED CERTIFICATES
    11  
Section 4. FIXING OF RECORD DATE
    11  
ARTICLE 9. NEGOTIABLE INSTRUMENTS, CONTRACTS, ETC.
    11  
Section 1. SIGNATURES ON CHECKS, ETC
    11  
Section 2. EXECUTION OF CONTRACTS, DEEDS, ETC
    12  
ARTICLE 10. CORPORATE SEAL
    12  
ARTICLE 11. FISCAL YEAR
    12  
The fiscal year of the Corporation shall be determined by the Board of Directors.
    12  
ARTICLE 12. VOTING OF STOCK HELD
    12  
ARTICLE 13. INDEMNIFICATION OF OFFICERS, DIRECTORS,
    13  
EMPLOYEES AND AGENTS; INSURANCE
    13  
Section 1. INDEMNIFICATION
    13  
Section 2. INDEMNIFICATION FOR COSTS, CHARGES AND EXPENSES FOR A SUCCESSFUL PARTY
    13  
Section 3. ADVANCEMENT OF COSTS, CHARGES AND EXPENSES
    13  
Section 4. PROCEDURE FOR INDEMNIFICATION
    14  
Section 5. OTHER RIGHTS; CONTINUATION OF RIGHTS OF INDEMNIFICATION
    14  
Section 6. SAVING CLAUSE
    15  
Section 7. INDEMNIFICATION OF OTHER PERSONS
    15  
Section 8. INSURANCE
    15  
ARTICLE 14. AMENDMENTS
    15  

ii

 

BY-LAWS OF
GLOBAL TELECOM & TECHNOLOGY, INC.
ARTICLE 1.
OFFICES
     SECTION 1. DELAWARE REGISTERED OFFICE. The registered office of the Corporation in the State of Delaware shall be fixed in the Corporation’s Certificate of Incorporation as the same may be amended from time to time.
     SECTION 2. OTHER OFFICES. The Corporation may have an office or offices at such other places as the Board of Directors may from time to time determine.
ARTICLE 2.
MEETINGS OF STOCKHOLDERS
     SECTION 1. ANNUAL MEETING. The annual meeting of stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before said meeting shall be held on such date and at such hour and place, within or without the State of Delaware, as shall be fixed by the Board of Directors with respect to each such meeting and as shall be stated in the notice thereof.
     SECTION 2. SPECIAL MEETINGS. Special meetings of stockholders, for any purpose or purposes may, except as otherwise prescribed by law or in the Certificate of Incorporation, be called at any time by the President or by the Board of Directors to be held on such date and at such hour and place, within or without the State of Delaware, as shall be stated in the notice thereof, and the President or a Vice President or the Secretary shall call such a meeting whenever stockholders, holding not less than a majority of all of the outstanding stock of the corporation entitled to vote at such meeting, shall make written application therefor, stating the purpose or purposes of the meeting applied for, which application shall be filed with the office of the Secretary.
     SECTION 3. NOTICE OF MEETINGS. Except as otherwise provided or permitted by law or in the Certificate of Incorporation or in these By-laws, written notice of all meetings of stockholders, stating the place, date and hour and in general terms only, the purpose or purposes thereof, shall be given by the President or a Vice President or the Secretary or an Assistant Secretary to each stockholder of record having voting power in respect of the business to be transacted thereat, either by serving such notice upon him personally or by mailing or telegraphing the same to him at his address as it appears on the records of the Corporation, at least ten days but not more than sixty days before the date of the meeting, and the Secretary or an Assistant Secretary or the transfer agent or agents of the Corporation shall make affidavit as to the giving of such notice.
     SECTION 4. QUORUM AND ADJOURNMENTS. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or by

1

 

proxy, shall be required to and shall constitute a quorum at all meetings of the stockholders for the transaction of business, except as otherwise provided by law, by the Certificate of Incorporation or by these By-laws. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting of the time and place of the adjourned meeting, until a quorum shall be present or represented. At such adjourned meeting any business may be transacted which might have been transacted at the original meeting. If a quorum be present at any meeting of stockholders and the meeting is adjourned to reconvene either at a later time on the same date or at a later date, no notice need be given other than announcement at the meeting, provided that if any adjournment, whether a quorum is present or not, is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or by proxy shall decide any question brought before such meeting unless the question is one upon which by express provision of law or of the Certificate of Incorporation or of these By-laws a larger or different vote is required, in which case such express provision shall govern and control the decision of such question. The stockholders present or represented at any duly called and held meeting at which a quorum is present or represented may continue to do business until adjournment, notwithstanding the withdrawal of such number as to leave less than a quorum.
     SECTION 5. ORGANIZATION. Each meeting of stockholders shall be presided over by the by a Vice President thereunto designated by the Chief Executive Officer or, in his absence, by the President, or in the absence of both, or by the Board of Directors, or in the absence of the Chief Executive Officer to the President and a Vice President so designated, by any other person selected to preside by vote of the holders of a majority of the outstanding stock present in person or by proxy and entitled to vote at the meeting. The Secretary, or in his absence an Assistant Secretary, or in the absence of both the Secretary and an Assistant Secretary any person designated by the person presiding at the meeting, shall act as secretary of the meeting.
     SECTION 6. PROXIES AND VOTING OF SHARES. At any meeting of stockholders or whenever the stockholders express consent or dissent to corporate action in writing without a meeting, each stockholder entitled to vote any shares on any matter to be voted upon at such meeting or in a written expression of such consent or dissent may exercise such voting right either in person or by proxy appointed by an instrument in writing, which shall be filed with the secretary of the meeting before being voted or with the written evidence of the consent or dissent, which shall be delivered to the Secretary of the Corporation for filing with the minutes of proceedings of stockholders of the Corporation. Such proxies shall entitle the holders thereof to vote at any adjournment of such meeting (unless a new record date is set by the Board of Directors), but shall not be valid after the final adjournment thereof. All questions regarding the qualification of voters, the validity of proxies, and the acceptance or rejection of votes shall be decided by two inspectors of election who shall be appointed by the Board of Directors or if not so appointed, then by the presiding officer of the meeting. No proxy shall be voted on after three years from its date unless said proxy provides for a longer period. Except as otherwise expressly required by statute, the vote on any question need not be by written ballot.

2

 

     SECTION 7. VOTING LIST OF STOCKHOLDERS. The officer who shall have charge of the stock ledger of the Corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at said meeting, arranged in alphabetical order and showing the address and the number of shares registered in the name of each such stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where said meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list of stockholders referred to above or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.
     SECTION 8. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Evidence of such consent in writing shall be delivered to the Secretary of the Corporation for filing with the minutes of proceedings of stockholders of the Corporation. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.
ARTICLE 3.
DIRECTORS
     SECTION 1. POWER AND DUTIES OF THE BOARD OF DIRECTORS. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. The Board may adopt such rules and regulations for that purpose and for the conduct of its meetings as it may deem proper. The Board shall exercise and shall be vested with the powers of the Corporation insofar as not inconsistent with law, the Certificate of Incorporation or these By-laws.
     SECTION 2. NUMBER AND QUALIFICATIONS. The number of directors constituting the whole Board, which shall be defined as the total number of directors which the Corporation would have if there were no vacancies, shall be not more than eight or less than one. The authorized number of directors, within the limits above specified, shall be determined by the affirmative vote of a majority of the whole Board

3

 

given at a regular or special meeting of the Board of Directors; provided that, if the number so determined is to be increased or decreased, notice of the proposed increase or decrease shall be included in the notice of such meeting unless all of the directors at the time in office are present at such meeting or those not present shall at any time waive or have waived notice thereof in writing; and provided further, that the number of directors which shall constitute the whole Board shall not be reduced to a number less than the number of directors then in office unless such reduction shall become effective only at and after the next ensuing meeting of stockholders for the election of directors or upon the resignation of an incumbent director. Directors need not be stockholders of the Corporation.
     SECTION 3. ELECTION AND TERM. Except as otherwise provided by law, the directors of the Corporation shall be elected pursuant to the provisions set forth in the Certificate of Incorporation of the Corporation. Each director shall hold office until a successor is duly elected and qualified subject to the provisions of ARTICLE V hereof.
     SECTION 4. REGULAR MEETINGS; NOTICE. Regular meetings of the Board of Directors shall be held at such time and place either within or outside of the State of Delaware, as may be determined by resolution of the Board. No notice of a regular meeting need be given (any practice or custom to the contrary notwithstanding) and any business may be transacted at a regular meeting, held as aforesaid, subject only to the requirements of Section 2 of this ARTICLE III.
     SECTION 5. SPECIAL MEETINGS. Special meetings of the Board of Directors may, unless otherwise expressly provided by law, be called from time to time by the President, or any Vice President, or by a written call signed by any one or more directors and filed with the Secretary. Each special meeting of the Board shall be held at such time and place, either within or outside of the State or Delaware, as shall be designated in the notice of such meeting.
     SECTION 6. NOTICE OF SPECIAL MEETINGS. Notice of a special meeting of the Board of Directors, stating the place, date and hour thereof, shall, except as otherwise expressly provided by law or as provided in Section 2 of ARTICLE VII hereof, be given by mailing or telegraphing the same to each director at his residence or business address at any time on or before the second day before the day of the meeting or by delivering the same to him personally or telephoning the same to him personally at his residence or business address not later than the day before the day of the meeting, unless, in case of exigency, the President, or in his absence a Vice President or the Secretary, shall prescribe a shorter notice to each director at his residence or business address. Except as otherwise required by statute or these By-laws, no notice or waiver of notice of a special meeting of the Board need state the purpose or purposes of such meeting, and any business may be transacted thereat, any practice or custom to the contrary notwithstanding.
     SECTION 7. QUORUM. A majority of the total number of directors at the time in office but in no event less than one-third of that total number or less than two directors shall constitute a quorum for the transaction of business at any meeting of the Board of

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Directors, except that when a Board of one director is authorized pursuant to the Certificate of Incorporation or these By-laws, then one director shall constitute a quorum. If less than a quorum be present at a meeting, the directors present may adjourn the meeting and the meeting may be held as adjourned without further notice. If a quorum be present at a meeting and the meeting is adjourned to reconvene either at a later time on the same date or at a later date, no notice need be given other than announcement at the meeting. Except as otherwise provided by law, by the Certificate of Incorporation or by these By-laws, when a quorum is present at any meeting of the Board of Directors, a majority of the directors present at such meeting shall decide any question brought before such meeting and the action of such majority shall be deemed to be the action of the Board.
     SECTION 8. ORGANIZATION. Each meeting of the Board of Directors shall be presided over by the Chairman, President, or in his absence, by any director selected to preside by vote of a majority of the directors present. The Secretary, or in his absence, an Assistant Secretary, or in the absence of both the Secretary and an Assistant Secretary, any person designated by the person presiding over the meeting, shall act as secretary of the meeting.
     SECTION 9. COMPENSATION OF DIRECTORS. The Board may, from time to time in its discretion, by resolution or resolutions passed by a majority of the whole Board, fix the amounts which shall be payable to the members thereof for their services in such capacity and provide for the reimbursement of the reasonable expenses of such members, all of which shall be in addition to any fees, salaries or other compensation which may be paid or payable to such members in any other capacity. Members of special or standing committees may be allowed like reimbursement and compensation for attending committee meetings.
     SECTION 10. COMMITTEES. The Board of Directors may, by resolution or resolutions adopted by a majority of the whole Board, designate an Executive Committee and one or more other committees. Except as otherwise provided by these By-laws each committee shall consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in said resolution or resolutions, shall have and may exercise the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation’s property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-laws of the Corporation. Unless expressly authorized by resolution or

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resolutions adopted by a majority of the whole Board, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock. Such other committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. The committees shall keep regular minutes of their proceedings and report the same to the Board when required.
     SECTION 11. WRITTEN CONSENTS. Any action required or permitted to be taken at any meeting of the Board of Directors or by any committee thereof may be taken without a meeting, if all members of the Board or of such committee, as the case may be, consent thereto in writing and the writing or writings are filed with the minutes of proceedings of the Board or committee.
     SECTION 12. CONFERENCE TELEPHONE MEETINGS. Members of the Board of Directors or any committee designated by such Board may participate in a meeting of such Board or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting in this manner shall constitute presence in person at such meeting.
ARTICLE 4.
OFFICERS
     SECTION 1. NUMBER AND ELECTION. The officers of the Corporation shall be elected by the Board of Directors and shall be a Chief Executive Officer, President and a Secretary. The Board of Directors may also elect one or more Vice Presidents, including Executive Vice Presidents, a Treasurer, a Comptroller and one or more Assistant Comptrollers, Assistant Secretaries and Assistant Treasurers. One of the officers shall have the duty to record the proceedings of the meetings of the stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person, but no officer shall execute, acknowledge or verify any instrument in more than one capacity.
     SECTION 2. TERM OF OFFICE AND QUALIFICATION. The officers shall be elected by the Board of Directors at the first meeting thereof after each annual meeting of stockholders. A meeting of the directors may be held without notice for this purpose, as well as for the transaction of any other business, immediately after the annual meeting of stockholders of the Corporation and at the same place. In the event of the failure so to elect any such officer, such officer may be elected at any subsequent meeting (regular or special) of the Board. Each officer, except such officers as may be appointed in accordance with the provisions of Section 3 of this ARTICLE IV, shall hold office until the next annual election of officers and until his successor shall have been duly elected and qualified, subject, however, to the provisions of ARTICLE V hereof. None of the officers of the Corporation need be directors.
     SECTION 3. OTHER OFFICERS. The Board of Directors may also appoint such other officers and agents as it may deem necessary for the transaction of the business of the Corporation. Such officers and agents shall hold office for such period, have such authority and perform such duties as shall be determined from time to time by the Board.

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     SECTION 4. CHIEF EXECUTIVE OFFICER. Subject to such supervisory powers, if any, as the Board may give tot the Chairman of the Board, the Chief Executive Officer, if any, shall have general supervision, direction, and control of the business and affairs of the Corporation and shall report directly to the Board. All other officers, officials, employees and agents shall report directly or indirectly to the Chief Executive Officer. The Chief Executive Officer shall see that all orders and resolutions of the Board are carried into effect. The Chief Executive Officer shall serve as a chairperson of and preside at all meetings of the stockholders. In the absence of a Chairperson of the Board, the Chief Executive Officer shall preside at all meetings of the Board.
     SECTION 5. THE PRESIDENT. In the absence or inability of the Chief Executive Officer, the President shall be the chief executive officer of the Corporation, shall have general and active management of the business and affairs of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. The President shall, perform such other duties as from time to time may be assigned to him by the Chief Executive Officer or as may be prescribed by these By-Laws.
     SECTION 6. VICE PRESIDENTS; INCLUDING EXECUTIVE VICE PRESIDENTS. In the absence or inability to act of the President, any Vice President designated by the Board of Directors shall perform all the duties and may exercise all the powers of the President. Each Vice President shall perform such other duties as from time to time may be assigned to him by the Board of Directors, the Chief Executive Officer or the President or as may be prescribed by these By-laws.
     SECTION 7. THE COMPTROLLER. The Comptroller shall have responsibility for the accounting procedures and practices of the Corporation and shall keep or cause to be kept at the principal office of the corporation, and shall be responsible for the keeping of, correct financial records of the business and transactions of the Corporation and at all reasonable times shall exhibit such record to any of the directors of the Corporation upon application at the office of the Corporation where such records are kept. He shall also perform all the duties incident to the office of Comptroller and such other duties as from time to time may be assigned to him by the Board of Directors, the Chief Executive Officer, the President or the Vice President.
     SECTION 8. ASSISTANT COMPTROLLERS. In the absence of the Comptroller, or in case of his inability to act, an Assistant Comptroller designated by the Chief Executive Officer or by the Board of Directors shall perform all the duties of the Comptroller and, when so acting, shall have all the powers of the Comptroller. The Assistant Comptrollers shall perform such other duties as from time to time shall be assigned to them by the Board of Directors, the President or the Comptroller.
     SECTION 9. THE SECRETARY. The Secretary shall have the duty to record or cause to be recorded in books kept for that purpose the proceedings of the meetings of the

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Corporation including those of the stockholders, the Board of Directors and all committees designated by the Board of Directors; shall see that all notices are duly given in accordance with the provisions of these By-laws and as required by law; shall be custodian of the records (other than those financial records kept by the Comptroller) and of the seal of the Corporation and see that the seal is affixed to all documents the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these By-laws and when so affixed may attest the same; shall see that the books, reports, statements, certificates and all other documents and records required by law are properly kept and filed; and in general, the Secretary shall perform all duties incident to the office of the Secretary and such other duties as may, from time to time, be assigned to him by the Board of Directors or the Chief Executive Officer.
     SECTION 10. ASSISTANT SECRETARIES. In the absence of the Secretary, or in case of his inability to act, an Assistant Secretary designated by the Chief Executive Officer or the Board of Directors shall perform all the duties of the Secretary and, when so acting, shall have all the powers of the Secretary. The Assistant Secretaries shall perform such other duties as from time to time shall be assigned to them by the Board of Directors, the Chief Executive Officer or the Secretary.
     SECTION 11. THE TREASURER. The Treasurer shall give such bond with such surety or sureties for the faithful performance of his duties as the Board of Directors may require. He shall have charge and custody of and be responsible for all funds and securities of the Corporation, deposit all such funds in the name of the Corporation in such banks, trust companies or other depositaries as shall be selected in accordance with the provisions of these By-laws and have supervision over all receipts and disbursements of the Corporation and, in the absence of a Comptroller, have general responsibility for its accounting procedures and practices; at all reasonable times exhibit his books of account and records to any of the directors of the Corporation upon application during business hours at the place where such books and records are kept; receive, and give receipts for, monies due and payable to the Corporation from any source whatsoever; and in general, perform all the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him by the Board of Directors or the Chief Executive Officer.
     SECTION 12. ASSISTANT TREASURERS. Each of the Assistant Treasurers shall give such bond for the faithful performance of his duties as the Board of Directors may require. In the absence of the Treasurer, or in case of his inability to act, an Assistant Treasurer designated by the Chief Executive Officer or the Board of Directors shall perform all the duties of the Treasurer and, when so acting, shall have all the powers of the Treasurer. The Assistant Treasurers shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chief Executive Officer or the Treasurer.
     SECTION 13. COMPENSATION. The compensation of all officers, agents and employees of the Corporation shall be fixed from time to time by the Board of Directors, or pursuant to authority of general or special resolutions of the Board. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation or a member of any committee.

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     SECTION 14. BONDS. The Board of Directors shall have the power to require any officer or agent of the Corporation to give a bond for the faithful discharge of his duties in such form and in such amount and with such surety or sureties as the Board may deem advisable.
ARTICLE 5.
RESIGNATIONS AND REMOVALS
     SECTION 1. RESIGNATIONS. Any director, officer or agent of the Corporation may, subject to contrary provision in any applicable contract, resign at any time by giving written notice to the Board of Directors or to the Chief Executive Officer or to the Secretary of the Corporation, and any member of any committee may resign at any time by giving notice either as aforesaid or to the committee of which he is a member or to the chairman thereof. Any such resignation shall take effect at the time specified therein or, if the time be not specified, upon receipt thereof; and unless otherwise specified therein, acceptance of such resignation shall not be necessary to make it effective.
     SECTION 2. REMOVALS. The holders of a majority of the shares entitled to vote at an election of directors may remove any director or the entire Board of Directors, with or without cause, at any meeting called for the purpose, and may elect his or their successors. The Board of Directors by vote of not less than a majority of the whole Board may remove from office any officer, employee, agent or member of any committee, elected or appointed by it.
ARTICLE 6.
VACANCIES
     SECTION 1. AMONG DIRECTORS. Except as otherwise provided in the Certificate of Incorporation, if the office of any director becomes vacant at any time by reason of death, resignation, retirement, disqualification, removal from office or other cause, or if any new directorship is created by any increase in the authorized number of directors, a majority of the directors then in office, although less than a quorum, or the sole remaining director, may choose a successor or fill the newly created directorship, and the director so chosen shall hold office, subject to the provisions of these By-laws, until the next annual election of directors and until his successor shall be duly elected and shall qualify. In the event that a vacancy arising as aforesaid shall not have been filled by the Board of Directors, such vacancy may be filled by the stockholders at any meeting thereof after such office becomes vacant. If one or more directors shall resign from the Board, effective at a future date, a majority of the directors then in office, including those who have so prospectively resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as herein provided in the filling of other vacancies.

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     SECTION 2. AMONG OFFICERS, ETC. If the office of the Chief Executive Officer, any Vice President, the Comptroller, the Secretary or the Treasurer, or of any other officer or agent or member of any committee, becomes vacant at any time by reason of death, resignation, retirement, disqualification, removal from office, or otherwise, such vacancy or vacancies shall be filled by the Board of Directors or as authorized by it.
ARTICLE 7.
NOTICES
     SECTION 1. MANNER OF GIVING. Whenever under the provisions of the laws of the State of Delaware, the Certificate of Incorporation or these By-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given by mailing or telegraphing (including telex or cable or other similar means) the same to each such director or stockholder at such address as appears on the books or in the records of the Corporation, and such notice shall be deemed to be given at the time when the same is thus mailed or telegraphed.
     SECTION 2. WAIVER OF NOTICE. Whenever under the provisions of these By laws, or of the Certificate of Incorporation, or of any of the laws of the State of Delaware, the stockholders, directors or members of a committee of directors are authorized to hold any meeting or take any action after notice or after the lapse of any prescribed period of time, a waiver thereof, in writing, signed by the person or persons entitled to such notice or lapse of time, whether before or after the time of meeting or action stated therein, shall be deemed equivalent thereto. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors, or members of any committee of directors need be specified in any written waiver of notice unless so required by the Certificate of Incorporation or these By-laws. The presence at any meeting of a person or persons entitled to notice thereof shall be deemed a waiver of such notice as to such person or persons, except when such person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.
ARTICLE 8.
CAPITAL STOCK
     SECTION 1. FORM AND ISSUANCE. Certificates of stock shall be issued in such form as may be approved by the Board of Directors and shall be signed by, or in the name of the Corporation by, the Chief Executive Officer, the President or a Vice President, and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Corporation certifying the number of shares owned by the stockholder in the Corporation. Any of or all the signatures on such a certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of issue unless determined otherwise by the Board generally or in particular instances.

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     SECTION 2. TRANSFERS OF STOCK. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate of stock duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. The Board of Directors shall have power and authority to make such other rules and regulations or amendments thereto as they may deem expedient concerning the issue, registration and transfer of certificates of stock and may appoint transfer agents and registrars thereof.
     SECTION 3. LOST, STOLEN AND DESTROYED CERTIFICATES. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon satisfactory proof of that fact by the person claiming the certificate or certificates for shares to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, at its discretion, and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to publicize the same in such manner as it shall require and/or to give the Corporation a bond in such sum as the Board of Directors may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate or certificates alleged to have been lost, stolen or destroyed, or the issuance of the new certificate or certificates.
     SECTION 4. FIXING OF RECORD DATE. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. Only such stockholders as shall be stockholders of record on the date so fixed shall be entitled to such notice of, and to vote at, such meeting and any adjournment thereof, or to receive payment of such dividend or other distribution, or to receive such allotment of rights, or to exercise such rights in respect of any such change, conversion or exchange of stock, or to participate in such other action, or to give such consent, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. If no record date is fixed by the Board of Directors, the record date shall be determined as provided by the laws of the State of Delaware. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
ARTICLE 9.
NEGOTIABLE INSTRUMENTS, CONTRACTS, ETC.
     SECTION 1. SIGNATURES ON CHECKS, ETC. All checks, drafts, bills of exchange, notes or other instruments or orders for the payment of money or evidences of indebtedness shall be signed for or in the name of the Corporation by such officer or officers, person or persons, as the Board of Directors may from time to time designate by resolution.

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     SECTION 2. EXECUTION OF CONTRACTS, DEEDS, ETC. The Board of Directors may authorize any officer or officers, agent or agents, in the name of and on behalf of the Corporation, to enter into or execute and deliver any and all deeds, bonds, mortgages, contracts and other obligations or instruments, and such authority may be general or confined to specific instances.
ARTICLE 10.
CORPORATE SEAL
     The seal of the Corporation shall have inscribed thereon the name of the Corporation, the year of its organization and the word “Delaware”. Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced in any manner whatsoever.
ARTICLE 11.
FISCAL YEAR
     The fiscal year of the Corporation shall be determined by the Board of Directors.
ARTICLE 12.
VOTING OF STOCK HELD
     Unless otherwise provided by resolution of the Board of Directors, Chief Executive Officer, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the Corporation, in the name and on behalf of the Corporation, to cast the votes which the Corporation may be entitled to cast as a stockholder or otherwise in any other corporation or association, any of whose stock or securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporations or associations, or to consent in writing to any action by any such other corporation or association, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed on behalf of the Corporation and under its corporate seal, or otherwise, such written proxies, consents, waivers or other instruments as he may deem necessary or proper in the premises; or any such officer may himself attend any meeting of the holders of stock or other securities of any such other corporation or association and thereat vote or exercise any or all other powers of the Corporation as the holder of such stock or other securities of such other corporation or association, or may consent in writing to any action by any such other corporation or association.

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ARTICLE 13.
INDEMNIFICATION OF OFFICERS, DIRECTORS,
EMPLOYEES AND AGENTS; INSURANCE
     SECTION 1. INDEMNIFICATION. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by law as it presently exists or hereafter may be amended (but, in the case of any amendment, only to the extent such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), any director or officer of the Corporation who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person of which he or she is the legal representative, is or was a director, officer, employee or agent of the Corporation, or had agreed to served as a director, officer employee or agent of the Corporation of is or was serving or has agreed to serve at the request of the Corporation as a director, office, employee or enterprise, including service with respect to employee benefit plans, or by whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or alleged action in any other capacity while serving as a director, officer, employee or agent, against all cost, expense, liability and loss (including attorneys’ fees, judgments, finds, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) actually and reasonably incurred by such person or on his or her behalf in connection with such proceeding shall continue as to a person who has ceased to be a director.
     SECTION 2. INDEMNIFICATION FOR COSTS, CHARGES AND EXPENSES FOR A SUCCESSFUL PARTY. Notwithstanding the other provisions of this Article Thirteenth, to the extent that a director or officer of the Corporation has been successful on the merits or otherwise, including, without limitation, the dismissal of an action without prejudice, in defense of any action, suit or proceeding referred to in Section 1 of this Article Thirteenth, or in the defense of any claim, issue or matter therein, he shall be indemnified against all costs, charges and expenses (including attorneys’ fees) actually and reasonably incurred by him or on his behalf in connection therewith.
     SECTION 3. ADVANCEMENT OF COSTS, CHARGES AND EXPENSES. Cost, charges and expenses (including attorneys’ fees) incurred by a person referred to in Section 1 of this Article Thirteenth, in defending a civil or criminal action, suit or proceeding (including investigations by any government agency and all costs, charges and expenses incurred in preparing for any threatened action, suit or proceeding) shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding; provided, however, that, if Delaware General Corporation Law so requires, the payment of such costs, charges and expenses incurred by a director or officer in his capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer) in advance of the final disposition of such action, suit or proceeding shall be made only upon receipt of an undertaking by or on behalf of the director or officer to repay all amounts so advanced in the event that it

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shall ultimately be determined that such director or officer is not entitled to be indemnified by the Corporation as authorized in this Article Thirteenth, or otherwise. No security shall be required for such undertaking and such undertaking shall be accepted without referenced to the recipient’s financial ability to make repayment. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not meet any standard of conduct for indemnification imposed by the Delaware General Corporation Law. The Board of Directors may, in the manner set forth above, and subject to the approval of such director or officer, authorize the Corporation’s counsel to represent such person in any action, suit or proceeding, whether or not the Corporation is party to such action, suit or proceeding.
     SECTION 4. PROCEDURE FOR INDEMNIFICATION. Any indemnification under Section 1 or advance or costs, charges and expenses under Section 3 of this Article Thirteenth, shall be made promptly, and in any event within 60 days, upon the written request by the director or officer directed to the Secretary of the Corporation. The right to indemnification or advances as granted by this Article Thirteenth shall be enforceable by the director or officer in any court of competent jurisdiction if the Corporation denies such request, in whole or in part, or if no disposition thereof is made within 60 days. Such person’s costs and expenses incurred in connection with successfully establishing his right to indemnification or advances, in whole or in part, in any such action shall also be indemnified by the Corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for the advance of costs, charges and expenses under Section 3 of this Article where the required undertaking, if any, has not been received by the Corporation) that the claimant has not met the standard of conduct, if any, set forth in the Delaware General Corporation Law, but the burden of proving that such standard of conduct has not been bet shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, its independent legal counsel, and its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct, if any, set forth in the Delaware General Corporation Law, nor the fact that there has been an actual determination by the Corporation (including its Board of Directors, its independent legal counsel, and its stockholders) that to the action or create a presumption that the claimant has not met the applicable standard of conduct.
     SECTION 5. OTHER RIGHTS; CONTINUATION OF RIGHTS OF INDEMNIFICATION. The indemnification provided by this Article Thirteenth, shall not be deemed exclusive of any other rights to which a person seeking indemnification may be entitled under any law (common or statutory), agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding office, and shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the estate, heirs, executors and administrators of such person. All rights to indemnification under this Article Thirteenth shall be deemed to be a contract between the Corporation and each director and officer of the Corporation who serves or served in such capacity at any time while this Article Thirteenth is in effect. No amendment or repeal of this Article

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Thirteenth or of any relevant provisions of the Delaware General Corporation Law or any other applicable laws shall adversely affect or deny to any director or officer any rights to indemnification which such person may have, or change or release any costs, charges, expenses (including attorneys’ fees), judgment, fines, and amounts paid in settlement which arise out of an action, suite or proceeding based in whole or substantial part on any act or failure to act, actual or alleged, which takes place before or while this Article Thirteenth is in effect. The provisions of this Section 5 of Article Thirteenth shall apply to any such action, suit or proceeding commenced after any amendment or repeal of this Article Thirteenth. The right to indemnification and advancement of expenses conferred on any person by this Article Thirteenth shall not limit the Corporation from providing any other indemnification permitted by law.
     SECTION 6. SAVING CLAUSE. If this Article Thirteenth or any portion hereof shall be invalidated on any ground by a court of competent jurisdiction, then the Corporation shall nevertheless indemnify each director and officer of the Corporation as to costs, charges and expenses (including attorneys’ fees) judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including any action by or in the right of the Corporation, to the full extent permitted by any applicable portion of this Article Thirteenth that shall not have been invalidated and to the full extent permitted by applicable law.
     SECTION 7. INDEMNIFICATION OF OTHER PERSONS. If authorized by the Board of Directors, the Corporation may indemnify and advance expenses to any other person whom it has the power to indemnify under Section 145 of the Delaware General Corporation Law to the fullest extent permitted by such statute.
     SECTION 8. INSURANCE. The Corporation may purchase and maintain, insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person pursuant to the Delaware General Corporation Law.
ARTICLE 14.  AMENDMENTS
     All By-laws of the Corporation shall be subject to amendment or repeal, and new By-laws may be adopted, either
          (a) by the affirmative vote of the holders of record of a majority of the outstanding stock of the Corporation entitled to vote, given at an annual meeting or at any special meeting of such stockholders, or without any such meeting of stockholders, by a written consent of stockholders in accordance with Section 8 of ARTICLE II of these By-laws, or
          (b) by the affirmative vote of a majority of the whole Board of Directors of the Corporation.

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Mercator Partners Acquisition Corp.
One Fountain Square
11911 Freedom Drive, Suite 590
Reston, Virginia 20190
June 15, 2006
To: H. Brian Thompson
Dear Mr. Thompson:
          This Employment Agreement (“Agreement”) will serve to confirm the terms of your employment with Mercator Partners Acquisition Corp. (“Mercator” or “Company”) as Executive Chairman. In consideration of the mutual promises contained in this Agreement, you and Mercator agree to the following terms of employment.
1.   EMPLOYMENT:
          Mercator hereby offers you employment as Executive Chairman, commencing on the date that Mercator acquires European Telecommunications & Technology, Inc. and Global Internetworking, Inc. You hereby accept employment with Mercator on the terms and conditions set forth in this Agreement. Your duties as Executive Chairman will include but not be limited to the following:
  •   serving as Chairman of the Board of Directors;
 
  •   obtaining direct reports from, and providing guidance and direction to, all other executive and senior officers of the Company;
 
  •   assisting in the development of and overseeing the Company’s execution of the Company’s strategic plan;
 
  •   coordinating and overseeing the integration of the Company’s business units/subsidiaries;
 
  •   accessing industry contacts in order to promote the Company’s business;
 
  •   overseeing the Company’s efforts in connection with the acquisition of target companies; and
 
  •   performing such other and further duties that the Board of Directors reasonably assigns to you from time to time.

 

 

You agree to devote your best efforts and as much time as is required to execute your responsibilities and duties under this Agreement. You may accept other engagements with other companies while this Agreement is in effect, provided that such engagements do not interfere with your duties and responsibilities under this Agreement. Specifically, it is agreed that you can continue to serve as a director for Sonus Networks, Inc., United Auto Group, Inc., Axcelis Technologies, Inc. and Bell Canada International, Inc. and as chairman of Comsat International, Inc. and iTown Communications, Inc. without breaching any obligations under this Agreement.
2.   REMUNERATION:
          You will be paid at an annual salary of $150,000 per year. Salary payments will be made on a semi-monthly basis. At the beginning of each calendar year, Mercator, in its sole discretion, will determine whether to increase your salary.
3.   EQUITY INCENTIVE:
          Upon the commencement of your employment hereunder, you will receive 50,000 restricted shares under Mercator’s stock plan which will vest, subject to your continuing employment, on the anniversary dates of grant at 25% per year for four years.
4.   EXPENSES:
          Upon your submission of appropriate documentation or receipts, Mercator shall reimburse you for any ordinary and necessary business expenses you incur in accordance with Mercator’s guidelines on business expenses.
5.   BENEFITS:
          Mercator shall provide you with the basic annual leave and benefits that Mercator makes available to full time employees in general.
6.   TERMINATION:
          Your employment is at-will — that is, just as you may end your relationship with Mercator at any time and for any reason or no reason at all, Mercator may end its relationship with you at any time and for any reason or no reason at all.

 

 

7.   CONFIDENTIALITY AND NONCOMPETITION:
          At the time your employment begins under this Agreement, you shall execute a Confidentiality and Noncompetition Agreement. Such Agreement will in no way contravene your duties toward Mercator as an officer and fiduciary of the organization. For example, although you may accept other engagements, such engagements shall in no way interfere with Mercator’s business interests, business opportunities and/or any other fiduciary obligations you have toward Mercator and its subsidiaries as an officer or board member of the Company.
8.   ASSIGNMENT:
          This Agreement is not assignable by either party without the written consent of the other; provided, however, that the provisions of this Agreement shall inure to the benefit of and be binding upon any successor interest of Mercator, whether by merger, consolidation, or transfer or all or substantially all of its assets or otherwise.
9.   MISCELLANEOUS:
  a.   Waiver . The waiver by any party to this Agreement of a breach of any of the provisions of this Agreement shall not constitute a waiver of any subsequent breach.
 
  b.   Severability . The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions of this Agreement, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. This Agreement shall be construed according to its fair meaning and not strictly for or against either party.
 
  c.   Governing Law. This Agreement shall be governed by the law of the State of Virginia, without regard to its conflict of laws provisions. You hereby irrevocably consent to, and waive any objection to the exercise of, personal jurisdiction by the state court located in Virginia with respect to any action or proceeding arising out of this Agreement.

 

 

  d.   Complete Agreement . This letter supersedes any and all prior discussions and understandings, whether written or oral, and represents the complete Agreement between the parties. Please indicate your acceptance of the terms of this Agreement by signing this letter in the space provided below and returning it to me as soon as possible.
     
 
  Yours truly,
 
  MERCATOR PARTNERS
 
  ACQUISITION CORP.
 
   
 
   
 
   
 
  Rhodric C. Hackman
 
  President
ACCEPTED :
         
    Signature: /s/ H. Brian Thompson
 
       
    Name (printed): H. Brian Thompson
    Date: June 15, 2006
 
     

 

 

EMPLOYMENT AGREEMENT
     This Employment Agreement (the “ Agreement ”) is made between Mercator Partners Acquisition Corp., Ltd., a Delaware corporation (the “ Company ”), and D. Michael Keenan (the “ Executive ”) and is entered into as of October 15, 2006 and shall become effective immediately after the closing pursuant to the Stock Purchase Agreement (the “Purchase Agreement”) entered into as of May 23, 2006 (the “Purchase Agreement Date”), by and among the Company, Global Internetworking, Inc., a Virginia corporation, the Executive, Todd J. Vecchio and Raymond E. Wiseman (the “ Effective Date ”).
      1.  Employment; Scheduled Term . Subject to the terms and conditions of this Agreement, Company agrees to employ Executive, and Executive accepts employment and agrees to be employed by Company during the time period commencing on the Effective Date and ending on the termination of this Agreement as provided in Section 7 below. The obligations of Executive set forth in the Executive Assignment of Inventions and Confidentiality Agreement referred to in Section 6 below shall survive the Scheduled Term and shall survive the termination of Executive’s employment, regardless of the cause of such termination. Executive hereby represents and warrants to Company that Executive is free to enter into and fully perform this Agreement and the agreements referred to herein without breach or violation of any agreement or contract to which Executive is a party or by which Executive is bound.
      2.  Duties . Executive shall serve as Chief Executive Officer of Company with such duties and responsibilities as may from time to time be assigned to Executive by the Board of Directors of Company (the “ Board ”), commensurate with and customarily assigned to Executive’s title and position described in this sentence. The duties and services to be performed by Executive under this Agreement are collectively referred to herein as the “Services” . Executive shall report directly to the Board. Executive agrees that to the best of his ability and experience he shall at all times conscientiously perform all of the duties and obligations assigned to him under the terms of this Agreement. At Company’s option, it will be entitled to reasonable use of Executive’s name in promotional, advertising and other materials used in the ordinary course of its business without additional compensation unless prohibited by law. Executive initially shall report to the offices located in McLean, Virginia; provided that Executive’s duties will include reasonable travel , including but not limited to travel to offices of Company, its subsidiaries and affiliates and current and prospective customers as is reasonably necessary and appropriate to the performance of Executive’s duties hereunder. Executive will comply with and be bound by Company’s operating policies, procedures, and practices from time to time in effect during Executive’s employment.
      3.  Exclusive Service . During the term of employment, Executive will not perform services for any other entity if such service would be in direct conflict with the Company’s business interests. Executive will apply his skill and experience to the performance of his duties and advancing Company’s interests in accordance with Executive’s experience and skills. Accordingly, Executive shall not engage in any outside work, business, consulting activity or render any commercial or professional services, directly or indirectly, for or on behalf of himself or any other person or organization, whether for compensation or otherwise, if such services would be in direct conflict with the Company’s business interests, except with the prior written approval of Company and Executive shall otherwise do nothing inconsistent with the performance of Executive’s duties hereunder.

 

      4.  Non-Competition and Other Covenants .
           4.1 Non-Competition Agreement . Beginning the Effective Date and continuing for so long thereafter as Executive is employed by Company or a subsidiary or affiliate of Company, and for the later of (i) three years from the Effective Date or (ii) one (1) year period following the termination of Executive’s employment with Company (collectively, the “Restricted Period”), Executive will not, directly or indirectly, individually or as an employee, partner, officer, director or shareholder (except to the extent permitted in Section 3 above) or in any other capacity whatsoever of or for any person, firm, partnership, company or corporation other than Company or its subsidiaries:
          (a) Own, manage, operate, sell, control or participate in the ownership, management, operation, sales or control of or be connected in any manner with any business engaged, in the geographical areas referred to in Section 4.2 below, in the design, research, development, marketing, sale, or licensing of managed data network services that are substantially similar to or competitive with the business of Company and any of its affiliates; or
          (b) Recruit, attempt to hire, solicit, or assist others in recruiting or hiring, in or with respect to the geographical areas referred to in Section 4.2 below, any person who is an employee of Company or any of its subsidiaries or induce or attempt to induce any such employee to terminate his employment with Company or any of its subsidiaries.
           4.2 Geographical Areas . The geographical areas in which the restrictions provided for in this Section 4 apply include all cities, counties and states of the United States, and all other countries in which Company (or any of its subsidiaries) are conducting business or are contemplating conducting business at the time. Executive acknowledges that the scope and period of restrictions and the geographical area to which the restrictions imposed in this Section 4 applies are fair and reasonable and are reasonably required for the protection of Company and that this Agreement accurately describes the business to which the restrictions are intended to apply.
           4.3 Non-Solicitation of Customers . In addition to, and not in limitation of, the non-competition covenants of Executive set forth above in this Section 4, Executive agrees with Company that, for the Restricted Period, Executive will not, either for Executive or for any other person or entity, directly or indirectly (other than for Company and any of its subsidiaries or affiliates), solicit business from, or attempt to sell, license or provide the same or similar products or services as are then provided, or are then contemplated of being provided, by Company or any subsidiary or affiliate of Company to any customer of Company.
           4.4 Non-Solicitation of Executives or Consultants . In addition to, and not in limitation of, the non-competition covenants of Executive set forth above in this Section 4, Executive agrees with Company that, for the Restricted Period, Executive will not, either for Executive or for any other person or entity, directly or indirectly, solicit, induce or attempt to induce any employee, consultant or contractor of Company or any affiliate of Company, to terminate his or her employment or his, her or its services with, Company or any subsidiary or affiliate of Company or to take employment with another party.
           4.5 Amendment to Retain Enforceability . It is the intent of the parties that the provisions of this Section 4 will be enforced to the fullest extent permissible under applicable

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law. If any particular provision or portion of this Section is adjudicated to be invalid or unenforceable, this Agreement will be deemed amended to revise that provision or portion to the minimum extent necessary to render it enforceable. Such amendment will apply only with respect to the operation of this paragraph in the particular jurisdiction in which such adjudication was made.
           4.6 Injunctive Relief . Executive acknowledges that any breach of the covenants of this Section 4 will result in immediate and irreparable injury to Company and, accordingly, consents that the Company shall have the right to seek injunctive relief and such other equitable remedies for the benefit of Company as may be appropriate in the event such a breach occurs or is threatened. The foregoing remedies will be in addition to all other legal remedies to which Company may be entitled hereunder, including, without limitation, monetary damages
           4.7 Executive Acknowledgment . Executive acknowledges that for purposes of enforcement thereof, the covenants set forth in this Section 4 shall also be applied and construed as if they were set forth in the Purchase Agreement as additional consideration extended by the Company thereunder.
      5.  Compensation and Benefits .
           5.1 Salary . During the term of this Agreement, Company shall pay Executive an initial salary of $250,000 per annum. Executive’s salary shall be payable as earned at Company’s customary payroll periods in accordance with Company’s customary payroll practices. Executive’s salary shall be subject to review and adjustment in accordance with Company’ customary practices concerning salary review for similarly situated employees of Company or its subsidiaries.
           5.2 Benefits . Executive will be eligible to participate in Company’s employee benefit plans of general application as they may exist from time to time, including without limitation those plans covering pension and profit sharing, executive bonuses, stock purchases, stock options, and those plans covering life, health, and dental insurance in accordance with the rules established for individual participation in any such plan and applicable law. Executive will receive such other benefits, including vacation, holidays and sick leave, as Company generally provides to its employees holding similar positions as that of Executive. Executive has received a summary of Company’s standard employee benefits policies in effect as of the date hereof, which shall not be less than Executive receives as of the Purchase Agreement Date unless such benefits are reduced for all employees holding similar positions as that of Executive. The Company reserves the right to change or otherwise modify, in its sole discretion, the benefits offered herein to conform to the Company’s general policies as may be changed from time to time during the term of this Agreement
           5.3 Cash Bonus . Executive will be eligible to earn up to a $250,000 bonus (the “ Maximum Bonus ”) during his first year of employment with Company. One-half of the Maximum Bonus shall be based on the Executive’s performance against reasonable performance criteria set by the Board and communicated to the Executive and one half of such potential bonus shall be awarded solely at the discretion of the Board.

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           5.4 Stock Bonus . Executive will be granted 150,000 shares of restricted stock of Company as promptly as practicable after the Effective Date under Company’s equity incentive plan. Such shares of restricted stock shall vest in four (4) equal amounts over a four (4) year period with the first 37,500 shares of restricted stock vesting on the first anniversary of the Effective Date. Executive will be eligible to receive additional restricted stock grants in such amounts, at such times and with such vesting schedules and other terms as are determined from time to time by the Board.
           5.5 Expenses . Company will reimburse Executive for all reasonable and necessary expenses incurred by Executive in connection with Company’s business are in accordance with Company’s applicable policy and are properly documented and accounted for in accordance with the requirements of the Internal Revenue Service. Reimbursement for expenses shall include a car allowance pursuant to Company’s policy in effect from time to time, that shall not be less than the car allowance in effect on the Purchase Agreement Date unless such benefits are reduced for all employees holding similar positions as that of Executive.
      6.  Proprietary Rights . Executive hereby agrees to execute an Executive Invention Assignment and Confidentiality Agreement with Company in substantially the form attached hereto as Exhibit A .
      7.  Termination .
           7.1 Upon Death . The Executive’s employment hereunder shall terminate automatically upon the death of the Executive. The Company shall pay to the Executive’s beneficiaries or estate, as appropriate, the compensation to which he is entitled pursuant to Section 5.1 through the end of the month in which death occurs, plus the average of the annual bonuses payable to Executive pursuant to Section 5.3 for each of the last three (3) completed fiscal years of the Company completed prior to the date of Executive’s death, plus vesting of a pro rata portion (based upon his service through the date of death) of any restricted stock granted to Executive pursuant to Section 5.4 determined as if vesting was on a monthly basis over a 48 month period.
           7.2 Upon Disability . If, in the opinion of a medical doctor specializing in the appropriate medical specialty, the Executive is prevented from properly performing his duties hereunder by reason of any physical or mental incapacity for a period of more than 180 days in the aggregate in any twelve month period, then, to the extent permitted by law, the Executive’s employment hereunder shall terminate and Executive shall receive all compensation due him pursuant to Section 5.1 through the date of termination, plus the average of the annual bonuses payable to Executive pursuant to Section 5.3 for each of the last three (3) completed fiscal years of the Company completed prior to the date of Executive’s disability, plus vesting of a pro rata portion (based upon his service through the date of disability) of any restricted stock granted to Executive pursuant to Section 5.4 determined as if vesting was on a monthly basis over a 48 month period, as well as the continuation of health benefits for a period of twelve (12) months after the termination of his employment. Nothing in this Section 7.2 shall affect the Executive’s rights under any Company sponsored disability plan in which he is a participant.
           7.3 By Company for Cause . Company may terminate the Executive’s employment hereunder for Cause (as defined below) at any time by giving written notice to the Executive. The Company shall pay Executive the compensation to which he is entitled pursuant

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to Section 5.1 through the end of the day of such termination. For purposes of this Agreement, the Company shall have “Cause” to terminate the Executive’s employment during the term of this Agreement only if: (i) the Executive materially breaches any provision of this Agreement after written notice identifying the substance of the material breach; (ii) Executive fails or refuses to comply with any lawful direction or instruction of Company’s Board of Directors, which failure or refusal is not timely cured, (iii) the Executive commits an act of fraud, embezzlement, misappropriation of funds, or dishonesty, (iv) the Executive commits a breach of his fiduciary duty based on a good faith determination by the Company’s Board of Directors and after reasonably opportunity to cure if such breach is curable, (v) the Executive is grossly negligent or engages in willful misconduct in the performance of his duties hereunder, and fails to remedy such breach within ten (10) days of receiving written notice thereof from the Board, provided, however, that no act, or failure to act, by the Executive shall be considered “grossly negligent” or an act of “willful misconduct” unless committed in good faith and with a reasonable belief that the act or omission was in or not opposed to the Company’s best interest; (vi) the Executive is convicted of a felony or a crime of moral turpitude; or (vi) Executive has a drug or alcohol dependency.
           7.4 By Company without Cause; By Executive for Good Reason . The Company may terminate the Executive’s employment hereunder at any time, without any Cause, and Executive may resign for Good Reason (as hereinafter defined), without any liability other than to pay to the Executive (i) his base salary through the effective date of termination and (ii) all compensation due pursuant to Section 5.1 as well as the continuation of salary and health benefits for a period of twelve (12) months after the termination of his employment, plus the average of the annual bonuses payable to Executive pursuant to Section 5.3 for each of the last three (3) completed fiscal years of the Company completed prior to the date of Executive’s termination (but not less than two-thirds of the maximum grantable bonus), plus vesting of all restricted stock granted to Executive pursuant to Section 5.4.
           7.5 Definition of Good Reason . For purposes hereof, “Good Reason” shall mean a termination by the Executive within ninety (90) days following (i) the relocation of the primary office of the Executive more than ten (10) miles from McLean, Virginia, without the consent of Executive, (ii) a material change in the Executive’s duties such that he is no longer the Chief Executive Officer of the Company or (iii) removal of Executive as Chief Executive or failure to nominate him for a position on the board of directors; (iv) the assignment to the Executive of duties that are inconsistent with his position or that materially alter his ability to function as Chief Executive Officer; or (v) a reduction in the Executive’s total base compensation as set forth in Sections 5.1, 5.2, 5.3 and 5.4.
           7.6 By Executive without Cause . The Executive may terminate his employment hereunder with thirty (30) days notice at any time.
           7.7 Surrender of Records and Property . Upon termination of his employment with Company for any reason, the Executive shall deliver promptly to Company all records, manuals, books, blank forms, documents, letters, memoranda, notes, notebooks, reports, data, tables, calculations or copies thereof, whether in tangible or electronic format or media, which are the property of Company or which relate in any way to the business, products, practices or techniques of Company, and all other property, trade secrets and confidential information of Company, including, but not limited to, all documents or electronic records which

5

 

in whole or in part contain any trade secrets or confidential information of Company, which in any of these cases are in his possession or under his control.
           7.8 Survival . Notwithstanding any termination of the Executive’s employment hereunder, and unless specifically provided therein, the Executive shall remain bound by the provisions of this Agreement which specifically relate to periods, activities or obligations upon or subsequent to the termination of the Executive’s employment. Further, Company’s obligation to pay severance upon termination of the Executive’s employment without cause shall survive termination of this Agreement.
      8.  Miscellaneous .
           8.1 Severability . If any provision of this Agreement shall be found by any arbitrator or court of competent jurisdiction to be invalid or unenforceable, then the parties hereby waive such provision to the extent that it is found to be invalid or unenforceable and to the extent that to do so would not deprive one of the parties of the substantial benefit of its bargain. Such provision shall, to the extent allowable by law and the preceding sentence, be modified by such arbitrator or court so that it becomes enforceable and, as modified, shall be enforced as any other provision hereof, all the other provisions continuing in full force and effect.
           8.2 Remedies . Company and Executive acknowledge that the service to be provided by Executive is of a special, unique, unusual, extraordinary and intellectual character, which gives it peculiar value the loss of which cannot be reasonably or adequately compensated in damages in an action at law. Accordingly, Executive and Company hereby consent and agree that for any breach or violation by Executive of any of the provisions of this Agreement including, without limitation, Section 3 and 4), a restraining order and/or injunction may be sought against either of the parties, in addition to any other rights and remedies the parties may have, at law or equity, including without limitation the recovery of money damages.
           8.3 No Waiver . The failure by either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way affect the right to require such performance or compliance at any time thereafter. The waiver by either party of a breach of any provision hereof shall not be taken or held to be a waiver of any preceding or succeeding breach of such provision or as a waiver of the provision itself. No waiver of any kind shall be effective or binding, unless it is in writing and is signed by the party against whom such waiver is sought to be enforced.
           8.4 Assignment . This Agreement and all rights hereunder are personal to Executive and may not be transferred or assigned by Executive at any time. Company may assign its rights, together with its obligations hereunder, to any subsidiary, affiliate or successor of Company, or in connection with any sale, transfer or other disposition of all or substantially all the business and assets of Company or any of their respective subsidiaries or affiliates, whether by sale of stock, sale of assets, merger, consolidation or otherwise; provided , that any such assignee assumes Company’s obligations hereunder. This Agreement shall be binding upon, and inure to the benefit of, the persons or entities who are permitted, by the terms of this Agreement, to be successors, assigns and personal representatives of the respective parties hereto.

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           8.5 Withholding . All sums payable to Executive hereunder shall be reduced by all federal, state, local and other withholding and similar taxes and payments required by applicable law to be withheld by Company.
           8.6 Entire Agreement . This Agreement (and the exhibit(s) hereto) constitutes the entire and only agreement and understanding between the parties relating to employment of Executive with Company and this Agreement supersedes and cancels any and all previous contracts, arrangements or understandings with respect to Executive’s employment; except that the Executive Invention Assignment and Confidentiality Agreement shall remain as an independent contract and shall remain in full force and effect according to its terms.
           8.7 Amendment . This Agreement may be amended, modified, superseded, cancelled, renewed or extended only by an agreement in writing executed by both parties hereto.
           8.8 Notices . All notices and other communications required or permitted under this Agreement shall be in writing and hand delivered, sent by telecopier, sent by certified first class mail, postage pre-paid, or sent by nationally recognized express courier service. Such notices and other communications shall be effective upon receipt if hand delivered or sent by telecopier, five (5) days after mailing if sent by mail, and one (l) day after dispatch if sent by express courier, to the following addresses, or such other addresses as any party shall notify the other parties:
         
 
  If to Company:   Mercator Partners Acquisition Corp.
 
      8484 Westpark Drive
 
      Suite 720
 
      McLean, VA 22102
 
      Attn: President and General Counsel
 
       
 
  If to Executive:   D. Michael Keenan
 
      1135 Bellview Road
 
      McLean, VA 22102
           8.9 Binding Nature . This Agreement shall be binding upon, and inure to the benefit of, the successors and personal representatives of the respective parties hereto.
           8.10 Headings . The headings contained in this Agreement are for reference purposes only and shall in no way affect the meaning or interpretation of this Agreement. In this Agreement, the singular includes the plural, the plural included the singular, the masculine gender includes both male and female referents, and the word “or” is used in the inclusive sense.
           8.11 Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which, taken together, constitute one and the same agreement.
           8.12 Governing Law . This Agreement and the rights and obligations of the parties hereto shall be construed in accordance with the laws of the State of Delaware, without giving effect to the principles of conflict of laws.
[Remainder of page intentionally left blank; next page is signature page]

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      IN WITNESS WHEREOF , Company and Executive have executed this Agreement as of the date first above written.
     
“COMPANY”
  “EMPLOYEE”
 
   
/s/ Rhodric C. Hackman
  /s/ D. Michael Keenan
 
   
By: Rhodric C. Hackman, President
  By: D. Michael Keenan
SIGNATURE PAGE TO EMPLOYMENT AGREEMENT

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Attachment
Exhibit A: Executive Assignment of Inventions and Confidentiality Agreement

 

 

EMPLOYMENT AGREEMENT
     This Employment Agreement (the “ Agreement ”) is made between Global Internetworking, Inc., a Virginia corporation (the “ Company ”), and Todd J. Vecchio (the “ Executive ”) and is entered into as of October 15, 2006 and shall become effective immediately after the closing pursuant to the Stock Purchase Agreement (the “Purchase Agreement”) entered into as of May 23, 2006 (the “Purchase Agreement Date”), by and among Mercator Partners Acquisition Corp., Ltd., a Delaware corporation (“Parent”), the Company, the Executive, D. Michael Keenan and Raymond E. Wiseman (the “ Effective Date ”).
      1.  Employment; Scheduled Term . Subject to the terms and conditions of this Agreement, Company agrees to employ Executive, and Executive accepts employment and agrees to be employed by Company during the time period commencing on the Effective Date and ending on the termination of this Agreement as provided in Section 7 below. The obligations of Executive set forth in the Executive Assignment of Inventions and Confidentiality Agreement referred to in Section 6 below shall survive the Scheduled Term and shall survive the termination of Executive’s employment, regardless of the cause of such termination. Executive hereby represents and warrants to Company that Executive is free to enter into and fully perform this Agreement and the agreements referred to herein without breach or violation of any agreement or contract to which Executive is a party or by which Executive is bound.
      2.  Duties . Executive shall serve as Senior Vice President of Company with such duties and responsibilities as may from time to time be assigned to Executive by the Chief Executive Officer of Parent (the “CEO”), commensurate with and customarily assigned to Executive’s title and position described in this sentence. The duties and services to be performed by Executive under this Agreement are collectively referred to herein as the “Services” . Executive shall report directly to the CEO. Executive agrees that to the best of his ability and experience he shall at all times conscientiously perform all of the duties and obligations assigned to him under the terms of this Agreement. At Company’s option, it will be entitled to reasonable use of Executive’s name in promotional, advertising and other materials used in the ordinary course of its business without additional compensation unless prohibited by law. Executive initially shall report to the offices located in McLean, Virginia; provided that Executive’s duties will include reasonable travel , including but not limited to travel to offices of Company, its subsidiaries and affiliates and current and prospective customers as is reasonably necessary and appropriate to the performance of Executive’s duties hereunder. Executive will comply with and be bound by Company’s operating policies, procedures, and practices from time to time in effect during Executive’s employment.
      3.  Exclusive Service . During the term of employment, Executive will not perform services for any other entity if such service would be in direct conflict with the Company’s business interests. Executive will apply his skill and experience to the performance of his duties and advancing Company’s interests in accordance with Executive’s experience and skills. Accordingly, Executive shall not engage in any outside work, business, consulting activity or render any commercial or professional services, directly or indirectly, for or on behalf of himself or any other person or organization, whether for compensation or otherwise, if such services would be in direct conflict with the Company’s business interests, except with the prior written approval of Company and Executive shall otherwise do nothing inconsistent with the performance of Executive’s duties hereunder.

 

 

      4.  Non-Competition and Other Covenants .
           4.1 Non-Competition Agreement . Beginning the Effective Date and continuing for so long thereafter as Executive is employed by Company or a subsidiary or affiliate of Company, and for the later of (i) three years from the Effective Date or (ii) one (1) year period following the termination of Executive’s employment with Company (collectively, the “Restricted Period”), Executive will not, directly or indirectly, individually or as an employee, partner, officer, director or shareholder (except to the extent permitted in Section 3 above) or in any other capacity whatsoever of or for any person, firm, partnership, company or corporation other than Company or its subsidiaries:
               (a) Own, manage, operate, sell, control or participate in the ownership, management, operation, sales or control of or be connected in any manner with any business engaged, in the geographical areas referred to in Section 4.2 below, in the design, research, development, marketing, sale, or licensing of managed data network services that are substantially similar to or competitive with the business of Company and any of its affiliates; or
               (b) Recruit, attempt to hire, solicit, or assist others in recruiting or hiring, in or with respect to the geographical areas referred to in Section 4.2 below, any person who is an employee of Company or any of its subsidiaries or induce or attempt to induce any such employee to terminate his employment with Company or any of its subsidiaries.
           4.2 Geographical Areas . The geographical areas in which the restrictions provided for in this Section 4 apply include all cities, counties and states of the United States, and all other countries in which Company (or any of its subsidiaries) are conducting business or are contemplating conducting business at the time. Executive acknowledges that the scope and period of restrictions and the geographical area to which the restrictions imposed in this Section 4 applies are fair and reasonable and are reasonably required for the protection of Company and that this Agreement accurately describes the business to which the restrictions are intended to apply.
           4.3 Non-Solicitation of Customers . In addition to, and not in limitation of, the non-competition covenants of Executive set forth above in this Section 4, Executive agrees with Company that, for the Restricted Period, Executive will not, either for Executive or for any other person or entity, directly or indirectly (other than for Company and any of its subsidiaries or affiliates), solicit business from, or attempt to sell, license or provide the same or similar products or services as are then provided, or are then contemplated of being provided, by Company or any subsidiary or affiliate of Company to any customer of Company.
           4.4 Non-Solicitation of Executives or Consultants . In addition to, and not in limitation of, the non-competition covenants of Executive set forth above in this Section 4, Executive agrees with Company that, for the Restricted Period, Executive will not, either for Executive or for any other person or entity, directly or indirectly, solicit, induce or attempt to induce any employee, consultant or contractor of Company or any affiliate of Company, to terminate his or her employment or his, her or its services with, Company or any subsidiary or affiliate of Company or to take employment with another party.

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           4.5 Amendment to Retain Enforceability . It is the intent of the parties that the provisions of this Section 4 will be enforced to the fullest extent permissible under applicable law. If any particular provision or portion of this Section is adjudicated to be invalid or unenforceable, this Agreement will be deemed amended to revise that provision or portion to the minimum extent necessary to render it enforceable. Such amendment will apply only with respect to the operation of this paragraph in the particular jurisdiction in which such adjudication was made.
           4.6 Injunctive Relief . Executive acknowledges that any breach of the covenants of this Section 4 will result in immediate and irreparable injury to Company and, accordingly, consents that the Company shall have the right to seek injunctive relief and such other equitable remedies for the benefit of Company as may be appropriate in the event such a breach occurs or is threatened. The foregoing remedies will be in addition to all other legal remedies to which Company may be entitled hereunder, including, without limitation, monetary damages
           4.7 Executive Acknowledgment . Executive acknowledges that for purposes of enforcement thereof, the covenants set forth in this Section 4 shall also be applied and construed as if they were set forth in the Purchase Agreement as additional consideration extended by the Company thereunder.
      5.  Compensation and Benefits .
           5.1 Salary . During the term of this Agreement, Company shall pay Executive an initial salary of $200,000 per annum. Executive’s salary shall be payable as earned at Company’s customary payroll periods in accordance with Company’s customary payroll practices. Executive’s salary shall be subject to review and adjustment in accordance with Company’ customary practices concerning salary review for similarly situated employees of Company or its subsidiaries.
           5.2 Benefits . Executive will be eligible to participate in Company’s employee benefit plans of general application as they may exist from time to time, including without limitation those plans covering pension and profit sharing, executive bonuses, stock purchases, stock options, and those plans covering life, health, and dental insurance in accordance with the rules established for individual participation in any such plan and applicable law. Executive will receive such other benefits, including vacation, holidays and sick leave, as Company generally provides to its employees holding similar positions as that of Executive. Executive has received a summary of Company’s standard employee benefits policies in effect as of the date hereof, which shall not be less than Executive receives as of the Purchase Agreement Date unless such benefits are reduced for all employees holding similar positions as that of Executive. The Company reserves the right to change or otherwise modify, in its sole discretion, the benefits offered herein to conform to the Company’s general policies as may be changed from time to time during the term of this Agreement.
           5.3 Cash Bonus . Executive will be eligible to earn up to a $200,000 bonus (the “ Maximum Bonus ”) during his first year of employment with Company. One-half of the Maximum Bonus shall be based on the Executive’s performance against reasonable performance criteria set by the CEO and the Board of Directors of Company (the “ Board ”) and communicated to the Executive and one half of such potential bonus shall be awarded solely at the discretion of the Board.

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           5.4 Stock Bonus . Executive will be granted 120,000 shares of restricted stock of Company as promptly as practicable after the Effective Date under Company’s equity incentive plan. Such shares of restricted stock shall vest in four (4) equal amounts over a four (4) year period with the first 30,000 shares of restricted stock vesting on the first anniversary of the Effective Date. Executive will be eligible to receive additional restricted stock grants in such amounts, at such times and with such vesting schedules and other terms as are determined from time to time by the Board.
           5.5 Expenses . Company will reimburse Executive for all reasonable and necessary expenses incurred by Executive in connection with Company’s business are in accordance with Company’s applicable policy and are properly documented and accounted for in accordance with the requirements of the Internal Revenue Service. Reimbursement for expenses shall include a car allowance pursuant to Company’s policy in effect from time to time, that shall not be less than the car allowance in effect on the Purchase Agreement Date unless such benefits are reduced for all employees holding similar positions as that of Executive.
      6.  Proprietary Rights . Executive hereby agrees to execute an Executive Invention Assignment and Confidentiality Agreement with Company in substantially the form attached hereto as Exhibit A .
      7.  Termination .
           7.1 Upon Death . The Executive’s employment hereunder shall terminate automatically upon the death of the Executive. The Company shall pay to the Executive’s beneficiaries or estate, as appropriate, the compensation to which he is entitled pursuant to Section 5.1 through the end of the month in which death occurs, plus vesting of a pro rata portion (based upon his service through the date of death) of any restricted stock granted to Executive pursuant to Section 5.4 determined as if vesting was on a monthly basis over a 48 month period.
           7.2 Upon Disability . If, in the opinion of a medical doctor specializing in the appropriate medical specialty, the Executive is prevented from properly performing his duties hereunder by reason of any physical or mental incapacity for a period of more than 180 days in the aggregate in any twelve month period, then, to the extent permitted by law, the Executive’s employment hereunder shall terminate and Executive shall receive all compensation due him pursuant to Section 5.1 through the date of termination, plus vesting of a pro rata portion (based upon his service through the date of disability) of any restricted stock granted to Executive pursuant to Section 5.4 determined as if vesting was on a monthly basis over a 48 month period, as well as the continuation of health benefits for a period of twelve (12) months after the termination of his employment. Nothing in this Section 7.2 shall affect the Executive’s rights under any Company sponsored disability plan in which he is a participant.
           7.3 By Company for Cause . Company may terminate the Executive’s employment hereunder for Cause (as defined below) at any time by giving written notice to the Executive. The Company shall pay Executive the compensation to which he is entitled pursuant to Section 5.1 through the end of the day of such termination. For purposes of this Agreement, the Company shall have “Cause” to terminate the Executive’s employment during the term of this Agreement only if: (i) the Executive materially breaches any provision of this Agreement after written notice identifying the substance of the material breach; (ii) Executive fails or refuses to comply with any lawful direction or instruction of Company’s Board of Directors, which

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failure or refusal is not timely cured, (iii) the Executive commits an act of fraud, embezzlement, misappropriation of funds, or dishonesty, (iv) the Executive commits a breach of his fiduciary duty based on a good faith determination by the Company’s Board of Directors and after reasonably opportunity to cure if such breach is curable, (v) the Executive is grossly negligent or engages in willful misconduct in the performance of his duties hereunder, and fails to remedy such breach within ten (10) days of receiving written notice thereof from the Board, provided, however, that no act, or failure to act, by the Executive shall be considered “grossly negligent” or an act of “willful misconduct” unless committed in good faith and with a reasonable belief that the act or omission was in or not opposed to the Company’s best interest; (vi) the Executive is convicted of a felony or a crime of moral turpitude; or (vi) Executive has a drug or alcohol dependency.
           7.4 By Company without Cause; By Executive for Good Reason . The Company may terminate the Executive’s employment hereunder at any time, without any Cause, and Executive may resign for Good Reason (as hereinafter defined), without any liability other than to pay to the Executive (i) his base salary through the effective date of termination and (ii) all compensation due pursuant to Section 5.1 as well as the continuation of salary and health benefits for a period of twelve (12) months after the termination of his employment, plus vesting of all restricted stock granted to Executive pursuant to Section 5.4.
           7.5 Definition of Good Reason . For purposes hereof, “Good Reason” shall mean a termination by the Executive within ninety (90) days following (i) the relocation of the primary office of the Executive more than ten (10) miles from McLean, Virginia, without the consent of Executive, (ii) a material change in the Executive’s duties such that he is no longer the Senior Vice President of the Company or (iii) removal of Executive as Senior Vice President; (iv) the assignment to the Executive of duties that are inconsistent with his position or that materially alter his ability to function as Senior Vice President; or (v) a reduction in the Executive’s total base compensation as set forth in Sections 5.1, 5.2, 5.3 and 5.4.
           7.6 By Executive without Cause . The Executive may terminate his employment hereunder with thirty (30) days notice at any time.
           7.7 Surrender of Records and Property . Upon termination of his employment with Company for any reason, the Executive shall deliver promptly to Company all records, manuals, books, blank forms, documents, letters, memoranda, notes, notebooks, reports, data, tables, calculations or copies thereof, whether in tangible or electronic format or media, which are the property of Company or which relate in any way to the business, products, practices or techniques of Company, and all other property, trade secrets and confidential information of Company, including, but not limited to, all documents or electronic records which in whole or in part contain any trade secrets or confidential information of Company, which in any of these cases are in his possession or under his control.
           7.8 Survival . Notwithstanding any termination of the Executive’s employment hereunder, and unless specifically provided therein, the Executive shall remain bound by the provisions of this Agreement which specifically relate to periods, activities or obligations upon or subsequent to the termination of the Executive’s employment. Further, Company’s obligation to pay severance upon termination of the Executive’s employment without cause shall survive termination of this Agreement.

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      8.  Miscellaneous .
           8.1 Severability . If any provision of this Agreement shall be found by any arbitrator or court of competent jurisdiction to be invalid or unenforceable, then the parties hereby waive such provision to the extent that it is found to be invalid or unenforceable and to the extent that to do so would not deprive one of the parties of the substantial benefit of its bargain. Such provision shall, to the extent allowable by law and the preceding sentence, be modified by such arbitrator or court so that it becomes enforceable and, as modified, shall be enforced as any other provision hereof, all the other provisions continuing in full force and effect.
           8.2 Remedies . Company and Executive acknowledge that the service to be provided by Executive is of a special, unique, unusual, extraordinary and intellectual character, which gives it peculiar value the loss of which cannot be reasonably or adequately compensated in damages in an action at law. Accordingly, Executive and Company hereby consent and agree that for any breach or violation by Executive of any of the provisions of this Agreement including, without limitation, Section 3 and 4), a restraining order and/or injunction may be sought against either of the parties, in addition to any other rights and remedies the parties may have, at law or equity, including without limitation the recovery of money damages.
           8.3 No Waiver . The failure by either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way affect the right to require such performance or compliance at any time thereafter. The waiver by either party of a breach of any provision hereof shall not be taken or held to be a waiver of any preceding or succeeding breach of such provision or as a waiver of the provision itself. No waiver of any kind shall be effective or binding, unless it is in writing and is signed by the party against whom such waiver is sought to be enforced.
           8.4 Assignment . This Agreement and all rights hereunder are personal to Executive and may not be transferred or assigned by Executive at any time. Company may assign its rights, together with its obligations hereunder, to any subsidiary, affiliate or successor of Company, or in connection with any sale, transfer or other disposition of all or substantially all the business and assets of Company or any of their respective subsidiaries or affiliates, whether by sale of stock, sale of assets, merger, consolidation or otherwise; provided , that any such assignee assumes Company’s obligations hereunder. This Agreement shall be binding upon, and inure to the benefit of, the persons or entities who are permitted, by the terms of this Agreement, to be successors, assigns and personal representatives of the respective parties hereto.
           8.5 Withholding . All sums payable to Executive hereunder shall be reduced by all federal, state, local and other withholding and similar taxes and payments required by applicable law to be withheld by Company.
           8.6 Entire Agreement . This Agreement (and the exhibit(s) hereto) constitutes the entire and only agreement and understanding between the parties relating to employment of Executive with Company and this Agreement supersedes and cancels any and all previous contracts, arrangements or understandings with respect to Executive’s employment; except that the Executive Invention Assignment and Confidentiality Agreement shall remain as an independent contract and shall remain in full force and effect according to its terms.

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           8.7 Amendment . This Agreement may be amended, modified, superseded, cancelled, renewed or extended only by an agreement in writing executed by both parties hereto.
           8.8 Notices . All notices and other communications required or permitted under this Agreement shall be in writing and hand delivered, sent by telecopier, sent by certified first class mail, postage pre-paid, or sent by nationally recognized express courier service. Such notices and other communications shall be effective upon receipt if hand delivered or sent by telecopier, five (5) days after mailing if sent by mail, and one (l) day after dispatch if sent by express courier, to the following addresses, or such other addresses as any party shall notify the other parties:
         
 
  If to Company:   Mercator Partners Acquisition Corp.
 
      8484 Westpark Drive
 
      Suite 720
 
      McLean, VA 22102
 
      Attn: President and General Counsel
 
       
 
  If to Executive:   Todd J. Vecchio
 
      3024 N. Oakland Street
 
      Arlington, VA 22207
           8.9 Binding Nature . This Agreement shall be binding upon, and inure to the benefit of, the successors and personal representatives of the respective parties hereto.
           8.10 Headings . The headings contained in this Agreement are for reference purposes only and shall in no way affect the meaning or interpretation of this Agreement. In this Agreement, the singular includes the plural, the plural included the singular, the masculine gender includes both male and female referents, and the word “or” is used in the inclusive sense.
           8.11 Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which, taken together, constitute one and the same agreement.
           8.12 Governing Law . This Agreement and the rights and obligations of the parties hereto shall be construed in accordance with the laws of the State of Delaware, without giving effect to the principles of conflict of laws.
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      IN WITNESS WHEREOF , Company and Executive have executed this Agreement as of the date first above written.
             
“COMPANY”   “EMPLOYEE”
 
           
 
           
     
 
           
By:
  D. Michael Keenan, President   By:   Todd J. Vecchio
 
           
SIGNATURE PAGE TO EMPLOYMENT AGREEMENT

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Attachment
Exhibit A: Executive Assignment of Inventions and Confidentiality Agreement

 

 

FORM
OF
PROMISSORY NOTE
     
$              McLean, Virginia
    October 15, 2006
     FOR VALUE RECEIVED, MERCATOR PARTNERS ACQUISITION CORP., a Delaware corporation (the “Maker”), promises to pay to the order of            , a resident of the Commonwealth of Virginia (the “Payee”) or his successor or assigns the principal sum of            Dollars ($            ), together with interest on the unpaid principal balance at the rate and on the terms hereinafter provided in this promissory note (including all modifications, amendments, substitutions, renewals or extensions hereof and allonges hereto, this “Note”).
     Payments due hereunder shall be paid in lawful money of the United States of America (or by wire transfer or by certified check payable in such money) at Payee’s address (as given below) or at such other place as Payee or any other holder of this Note may from time to time have designated by prior written notice to the Maker.
     This Note is being executed and delivered in accordance with the terms of that certain Stock Purchase Agreement, by and among the Maker, Global Internetworking, Inc., Payee, D. Michael Keenan and Raymond E. Wiseman, dated May 23, 2006 (the “Agreement”), and is subject to the provisions thereof.
     This Note is one of a duly authorized series of Notes (the “Notes”) in the aggregate principal amount of Four Million Dollars ($4,000,000). For purposes of this Note, reference to Majority Holders shall mean the holders of more than fifty percent (50%) of the outstanding principal balances due under all of the Notes.
     1.  Interest Rate. Interest shall accrue daily on the unpaid principal balance of this Note from and after the date hereof at a rate equal to six percent (6%) per annum, compounded annually. Interest due hereunder shall be computed on the basis of a 360-day year composed of twelve 30-day months. Interest shall be paid for the actual number of days elapsed based on a 360-day year.
     2.  Subordination . The indebtedness evidenced by this Note is hereby expressly subordinate, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all of the Maker’s “Senior Indebtedness”. Senior Indebtedness shall mean the principal of and unpaid interest and premium, if any, on (i) indebtedness of the Maker or with respect to which the Maker is a guarantor, whether outstanding on the date hereof or hereafter created, to banks, insurance companies or other lending or thrift institutions regularly engaged in the business of lending money, whether or not secured, (ii) indebtedness of the Maker or with respect to which the Maker is a guarantor, whether outstanding on the date

 

 

hereof or hereafter created, to equipment leasing companies relating to capital assets used in the day-to-day operations of the Maker, it subsidiaries or affiliates, and (iii) any deferrals, renewals or extensions of any debentures, notes or other indebtedness issued in exchange for such Senior Indebtedness. Payee agrees to execute a standard form subordination agreement to confirm such subordination in which Payee shall agree to forego receiving payments hereunder if a default exists under any outstanding Senior Indebtedness.
     3.  Payment. Fifty percent (50%) of the accrued interest on the unpaid principal balance shall be due and payable on December 31, 2006. Fifty percent (50%) of the accrued interest on the unpaid principal balance from the period commencing January 1, 2007 and ending on December 31, 2007 shall be due and payable on December 31, 2007. If not sooner paid, the entire principal balance, all accrued and unpaid interest, if any, and all other sums provided herein shall be due and payable on December 29, 2008. Notwithstanding the terms of this Section 3, all principal and interest will be due and payable no later than five (5) business days following (i) a Change of Control (as defined in Section 1.9 of the Agreement), (ii) the exercise, by the holders thereof, of no less than fifty percent (50%) of (a) the Class W Warrants (as defined in Section 1.2(d) of the Agreement) issued and outstanding as of the date of this Note and (b) the Class Z Warrants (as defined in Section 1.2(e) of the Agreement) issued and outstanding as of the date of this Note, or (iii) the issuance by the Maker of debt or equity securities (in a single transaction or series of substantially related transactions) resulting in a capital raise by the Maker of Twenty Million Dollars ($20,000,000.00) or more.
     4.  Prepayment . This Note may be prepaid in whole or in part at any time and from time to time without premium or penalty; provided, however, any such prepayment shall be proportionately applied against all the Notes such that the prepayment against this Note shall bear the same ratio to the prepayments against all Notes as the principal and interest then due under this Note bears to the principal and interest then due under all the Notes. Any prepayment shall be applied against the principal sum then outstanding and if this Note is prepaid in whole, shall include all interest due to the date of such prepayment. No partial prepayment shall affect the obligation of the Maker to make any payment of principal or interest due hereunder on the date hereinabove specified until this Note has been paid in full.
     5.  Application of Payments . Payments on this Note shall be applied first to late charges and fees, then to outstanding interest, then to other sums due hereunder, then to principal.
     6.  Events of Default . It is expressly agreed that the occurrence of any one or more of the following shall constitute an “Event of Default” hereunder:
          (a) failure of the Maker to make any payment required by the terms hereof when the same shall become due and payable and such default shall have continued for a period of ten (10) days after Maker has received written notice from Payee that such default has occurred;
          (b) any other default, which is not waived, under any other debt instrument or security or financing agreement to which Maker is a party;

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          (c) failure by the Maker to perform any term, covenant or agreement contained herein; or
          (d) if the Maker, any of its affiliates or subsidiaries, shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Maker, or such affiliate of subsidiary, or shall commence any case or other proceeding relating to the Maker, or such affiliate of subsidiary, under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application shall be filed or any such case or other proceeding shall be commenced against the Maker, or such affiliate of subsidiary, and such petition or application shall not have been dismissed within sixty (60) days following the filing thereof.
     7.  Expenses of Collection, etc. The Maker agrees to pay all expenses, including court costs and actual and reasonable attorneys’ fees, incurred in collecting this Note, in preserving or disposing of any collateral given as security for the payment of this Note or in defending or prosecuting any action relating to this Note.
     8.  Acceleration Upon Default; Default Rate . If an Event of Default has occurred and is continuing under any instrument by which this Note is, or may hereafter be, secured, the entire principal balance, interest then accrued, and all other sums due hereunder, whether or not otherwise then due, shall, at the option of the Majority Holders, become immediately due and payable without demand or notice. Upon any Event of Default hereunder, and during the continuation thereof, the interest rate hereunder will increase to nine percent (9%) per annum.
     9.  Notices. Any notices required or permitted hereunder may be given by certified or registered mail, postage prepaid, return receipt requested or upon delivery if delivered by hand, by messenger or by a nationally recognized, overnight commercial express service if sent to the parties’ respective addresses as indicated below, or to such other address as may be prescribed by written notice given pursuant to this Paragraph. Notices shall be deemed given hereunder upon personal delivery or three (3) business days after the date mailed:
     
if to Maker:
  Mercator Partners Acquisition Corp.
 
  8484 Westpark Drive
 
  Suite 720
 
  McLean, VA 22102
 
  Attn: President and General Counsel
 
   
if to Payee:
   
 
   
 
   

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     10.  Severability. If any provision of this Note shall be held to be illegal, void, invalid or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Note and that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Note in any other jurisdiction shall not be affected.
     11.  Applicable Law; Consent to Venue and Jurisdiction . This Note shall be governed by the laws of the Commonwealth of Virginia, without giving effect to its choice of law rules. Maker and Payee consent to the jurisdiction and venue of the courts of the Commonwealth of Virginia in any action or judicial proceeding brought to enforce, construe or interpret this Note.
     12.  Successors and Assigns. The terms and conditions of this Note shall be binding upon Maker and its successors and permitted assigns, and shall inure to the benefit of the Payee and its successors and assigns, and any subsequent holder of this Note.
     13.  Amendments; Waiver . Any provision of this Note may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Note, or in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by Payee in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
     14.  Assignment. Except as otherwise provided herein, any attempt by Maker to assign its rights or delegate its duties under this Note without the prior written consent of Payee will be void.
     15.  Captions; Certain Terms . The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. Whenever the words “ include ,” “ includes ,” or “ including ” are used in this Agreement, they shall be deemed to be followed by the words “ without limitation. ”
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     IN WITNESS WHEREOF, the Maker has executed this Note as of the date first above written.
         
  MERCATOR PARTNERS ACQUISITION CORP.
  		 
  By:      
    Rhodric C. Hackman, President   
       
 

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SCHEDULE OF MATERIAL DIFFERENCES TO EXHIBIT 10.4
         
Payee   Principal Sum  
D. Michael Keenan
  $ 1,800,000  
 
       
Todd Vecchio
  $ 1,800,000  
 
       

 

FORM
OF
PROMISSORY NOTE
Amount:            
Date: October 15, 2006 		  Maturity Date: June 30, 2007
     This Promissory Note (the “Note”) is being executed by Mercator Partners Acquisition Corp., a Delaware corporation (the “Company”), in favor of and is being delivered to D.             (“Payee”) in connection with Payee’s agreement to defer part of the cash payment due to the Payee from the Company from the Company’s purchase of the shares that the Payee held in [Global Internetworking, Inc. (“GII”)] [European Telecommunication & Technology Limited]. This Note is one of a series of notes (collectively, the “Notes”) amounting to an aggregate principal amount of $5,916,667.00 that the Company has delivered on this date to other holders of shares of [European Telecommunications & Technology, Inc. (“ETT”)] [Global Internetworking, Inc.] and GII who have similarly agreed to defer part of the current payment of cash against the Company’s purchase of their shares of GII or ETT.
     As used herein, the term “Holder” means the Payee and any other holder from time to time of this Note, together with their respective successors, heirs and assigns.
      FOR VALUE RECEIVED, the Company promises to pay to the order of Holder at the offices of the Company, or at such other place as may be designated by Holder, the principal amount of             Dollars ($             ) together with interest on the unpaid principal balance as hereinafter provided.
     1.  Payment Schedule and Maturity Date . The entire principal balance of this Note then unpaid, together with all accrued and unpaid interest and all other amounts payable under this Note, shall be due and payable in full on June 30, 2007 (the “Maturity Date”).
     (a)  Fixed Rate . Interest on the outstanding principal balance of, and all other sums owing under this Note, which are not past due, shall accrue and be payable at a rate which is equal to six percent (6.00%) per annum (the “Note Rate”). Interest shall be computed for the actual number of days which have elapsed, on the basis of a 365-day year.
     (b)  Past Due Rate . If any amount payable by the Company under this Note is not paid when due, such amount shall thereafter bear interest at the Note Rate plus two percent (2%) per annum (the “Past Due Rate”) to the fullest extent permitted by applicable law. The Past Due Rate shall apply to all sums not paid when due and payable under this Note until paid in full.
     2.  Prepayments . The Company may prepay this Note in full or in part, at any time without notice or penalty. In no event will any prepayment be made against this Note unless prepayments are then made against all the Notes with the amount being prepaid against this Note bearing the same ratio to the total amounts being prepaid against all the Notes as the ratio of the

 

 

amount then due under this Note bears to the total amounts then due under all the Notes.
3. Waivers, Consents and Covenants.
     (a)  Waivers; Time of Essence . The Company waives, to the extent permitted by applicable law, presentment, demand, protest, notice of demand, notice of intent to accelerate, notice of acceleration of maturity, notice of protest, notice of nonpayment, and notice of dishonor in connection with the delivery, acceptance, performance, default or enforcement of this Note. TIME IS OF THE ESSENCE IN THIS NOTE.
     (b)  Covenants . Until such time as this Note shall have been paid in full, (i) promptly upon the occurrence thereof (but in all events within three business days thereof), the Company shall provide Holder with written notice of any Event of Default (as defined in Section 4 below), or any act, event, condition or occurrence that upon the giving of any required notice or the lapse of time, or both, would constitute an Event of Default, and (ii) the Company shall (X) apply the proceeds of any new issue of securities towards the repayment of this Notes (pro rata to their principal amounts before making any other use thereof (other than payment of costs of the issue) and (Y) not (A) declare or pay any dividends or make any distributions, whether of an income or capital nature of cash or assets, (B) purchase, redeem or otherwise retire any shares of the Company’s capital stock, (C) loan or advance any funds to any stockholder of the Company other than customary advancement of expenses to employees of the Company in the ordinary course of business, (D) create or permit to subsist any mortgage charge, pledge, lien or encumbrance whatsoever over all or any part of its assets or agree to do so, (E) sell, transfer or otherwise dispose of the whole or any part of its assets or agree to do so, or (F) borrow any monies from or grant any security to any person unless the repayment of those borrowings and/or the security is subordinate to the terms of these Notes.
     4.  Events of Default . The occurrence of one or more of the following events shall be “Events of Default” under this Note, and the term “Event of Default” shall mean, whenever they are used in this Note, any one or more of the following events:
          (a) Failure to Pay . The Company shall fail to make any payment under this Note within five (5) business days after such payment becomes due under this Note.
          (b) Breach of Covenant . The Company breaches any of the covenants set out in Section 3 ( b) above or the warranties set out in Section 6.
          (c) Receiver; Bankruptcy . The Company shall (i) apply for or consent to the appointment of a receiver, administrator, trustee or liquidator of itself or any of its property, (ii) admit in writing its inability to pay its debts as they mature, (iii) make a general assignment for the benefit of creditors, (iv) be adjudicated a bankrupt or be insolvent, (v) file a voluntary petition in bankruptcy or a petition or an answer seeking reorganization or an arrangement with creditors or to take advantage of any bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or liquidation law or statute, or an answer admitting the material allegations of a petition filed against it in any proceeding under any such law or if corporate action shall be taken by the Company for the purposes of effecting any of the foregoing, or (vi) by any act indicate its consent to, approval of or acquiescence in any such proceeding or the appointment of any

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receiver of or trustee for any of its property, or suffer any such receivership, trusteeship or proceeding to continue undischarged for a period of sixty (60) days.
5. Remedies Upon Default . Upon the occurrence of an Event of Default under this Note, (i) at the option of Holder, the entire balance outstanding under this Note shall become immediately due and payable and (ii) Holder shall have all rights and remedies available at law or in equity.
6. Warranties . As at the date of these Notes, the Company warrants and undertakes to the Holders that, save as set out in the Proxy Statement of the Company dated September 29, 2006, neither it nor GII and ETT have any debt or loan facilities outstanding to any persons nor are the assets of the Company, GII and ETT mortgaged or charged to any person.
7. Remedies Cumulative . The failure at any time of Holder to exercise any of the Holder’s options or any other rights hereunder shall not constitute a waiver thereof, nor shall it be a bar to the exercise of any of Holder’s options or rights at a later date. All rights and remedies of Holder shall be cumulative and may be pursued singly, successively or together, at the option of Holder. The acceptance by Holder of any partial payment shall not constitute a waiver of any default or of any of Holder’s rights under this Note. Any term or provision of this Note may be amended, waived or modified with the written consent of the Company and Holder; and any such waiver shall apply only with respect to the specific instance involved, and shall in no way impair the rights of Holder or the obligations of the Company to Holder in any other respect at any other time.
8. Costs and Expenses of Enforcement . Upon the occurrence of an Event of Default, the Company shall pay on demand all costs of collection and reasonable attorneys fees incurred or paid by Holder in enforcing the terms hereof or with respect to collection hereunder whether or not a suit has been filed.
9. Applicable Law . This Note shall be construed and enforced in accordance with, and the rights and obligations of the Company and Holder shall be governed by, the laws of Virginia and the parties submit to the non-exclusive jurisdiction of the Virginia courts.
10. Partial Invalidity . The unenforceability or invalidity of any provision of this Note shall not affect the enforceability or validity of any other provision herein and the invalidity or unenforceability of any provision of this Note to any person or circumstance shall not affect the enforceability or validity of such provision as it may apply to other persons or circumstances.
11. Binding Effect . This Note shall be binding upon and inure to the benefit of the Company and Holder and their respective successors and permitted assigns.
12. Manner and Method of Payment . All payments called for in this Note shall be made in lawful money of the United States of America by wire transfer to the account(s) designated by Holder, which account(s) may be changed by Holder from time to time upon notice to the Company pursuant to Section 14 hereof. Should any payment date fall on a non-banking day, the Company shall make the payment on the next succeeding banking day (provided that interest shall continue to accrue at the applicable rate hereunder through the actual date of payment).

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13. Notices . All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given or made (i) upon receipt or refusal of delivery, if delivered personally, mailed by registered or certified mail (postage prepaid, return receipt requested), or delivered by courier service or overnight mail to the parties at the following addresses (or at such other address for a party as shall be communicated by such party pursuant hereto) or (ii) upon receipt if sent by electronic transmission to the telecopier number specified below (or at such other telecopier number for a party as shall be communicated by such party pursuant hereto) provided that a copy of such notice or other communication is delivered personally or by courier service within two (2) business days following such electronic transmission:
     
If to the Company:
  Mercator Partners Acquisition Corp.
 
   
 
                 One Fountain Square
 
                 Suite 590
 
                 Reston, VA 20190
 
                 Facsimile: (703) 995-5535
 
                 Attention: Rhodric Hackman.
 
   
If to Holder:
  At the address set forth in the Company’s records for the Holder
14. Service. The Company appoints Rhodric Hackman, or such other person as the Company may hereafter designate in writing to the Holder as its process agent to receive on its behalf service of process and any other documents in any proceedings in [the Commonwealth of Virginia] [England] and any writ, judgment or other notice of legal process which shall be sufficiently served on the Company if delivered to such process agent at his/its address for the time being. The Company undertakes not to revoke the authority of such process agent. If for any reason such process agent (or any subsequent replacement process agent) ceases to exist, ceases to be able to act in that capacity, no longer has an address in [England] [Virginia] or service of process on such process agent ceases to be effective, the Company undertakes to appoint a replacement process agent and to notify the Holders forthwith of such appointment. In default of such appointment by the Company, the Holders shall be entitled to appoint such a process agent on behalf of, and at the expense of, the Company.
15. No Transfer . This Note may not be transferred by Holder without the Company’s prior written consent, except that if the Holder is an individual the Note may, (i) be transferred, in whole or in part to members of Holder’s immediate family or any trusts for Holder’s or their benefit and (ii) upon Holder’s death, be transferred to Holder’s successors, heirs, personal representative or trustees for the benefit of Holder’s immediate family and except further that if the Holder is a company the Note may be transferred in whole or in part to members of the group of companies of which the Holder is part and if the Holder is a fund the Note may be transferred in whole or in part to any fund which is managed or advised by the manager or adviser to such fund.

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16. Seal and Effective Date. This Note is an instrument executed under seal and is to be considered effective and enforceable as of the date set forth on the first page hereof, independent of the date of actual execution and delivery.
[Signature Page Follows]

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ATTEST:   COMPANY:
 
           
    Mercator Partners Acquisition Corp.
 
           
 
  By:   /s/ Rhodric C. Hackman   (SEAL)
 
           
Name:
           
 
           
ACKNOWLEDGED AND AGREED:
           
 
           
 
           
 
 
           

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SCHEDULE OF MATERIAL DIFFERENCES TO EXHIBIT 10.5
         
Payee   Principal Sum  
D. Michael Keenan
  $ 250,000  
 
       
Todd Vecchio
  $ 800,000  
 

FORM
OF
LOCKUP AGREEMENT
October 15, 2006
Mercator Partners Acquisition Corp.
One Fountain Square
11911 Freedom Drive
Suite 1080
Reston, VA 20190
Ladies and Gentlemen:
     Reference is made to the Stock Purchase, dated May 23, 2006 (the “ Stock Purchase Agreement ”), by and among Mercator Partners Acquisition Corp., Ltd., a Delaware corporation ( “Buyer” ), Global Internetworking, Inc., a Virginia corporation ( “Company” ), and each of the following persons: D. Michael Keenan ( “Keenan” ), Todd J. Vecchio ( “Vecchio” ), and Raymond E. Wiseman ( “Wiseman” ), such persons being all of the stockholders of the Company (each a “Stockholder” and, collectively, the “Stockholders” ). Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Stock Purchase Agreement.
     As a condition to Buyer entering into the Stock Purchase Agreement and consummating the transactions contemplated thereby, the undersigned Stockholder has agreed to restrict the sale and transfer of certain shares of Buyer Common Stock issuable to such Stockholder pursuant to the terms of this Lockup Agreement (this “ Agreement ”). Accordingly, the undersigned Stockholder hereby agrees as follows:
     1.  Transfer Restrictions . The undersigned agrees that, except as expressly permitted by this Agreement, and subject to any other restrictions on the Transfer (as defined below) of shares of Buyer Common Stock issuable to such Stockholder pursuant to the Stock Purchase Agreement (the “ Additional Transfer Restrictions ”), the undersigned will not, directly or indirectly, offer to sell, contract to sell or otherwise sell or dispose of, or enter into any other transaction which is designed to, or might reasonably be expected to, result in the transfer (whether by actual transfer or effective economic transfer due to cash settlement or otherwise) of any right, title or interest in or to any of sell, transfer, pledge, hypothecate or otherwise dispose of, or reduce the undersigned’s interest in or risk relating to (hereinafter referred to as a “ Transfer ”), any shares of Buyer Common Stock: (i) issued to the undersigned in connection with the Stock Purchase (as defined in the Stock Purchase Agreement) in accordance with the terms of the Stock Purchase Agreement; or (ii) otherwise acquired or beneficially owned by the undersigned as a result of the transactions contemplated by the Stock Purchase Agreement including, but not limited to, Class W Warrants, Class Z Warrants (or shares of Buyer Common Stock issued upon exercise of the Class W Warrants or Class Z Warrants) (collectively, the “ Lockup Shares ”).

 

 

2.   Release of Lockup Shares from Transfer Restrictions . The Lockup Shares shall be released from the restrictions on Transfer set forth in Section 1 of this Agreement, and may be Transferred by the undersigned (subject to any other applicable restrictions on Transfer) as follows:
  (a)   For the period commencing on the Effective Time (as defined in the Stock Purchase Agreement) and terminating on the date which is six (6) months subsequent to the Effective Time, the undersigned may not transfer any Lockup Shares.
 
  (b)   For the period commencing on the date which is six (6) months and one (1) day after the Effective Time and terminating one (1) year and six (6) months subsequent to the Effective Time, the undersigned may Transfer no more than fifty percent (50%) of that number of Lockup Shares that would be saleable by the undersigned pursuant to the provisions of Rule 145 in any consecutive three (3) month period; provided however, for purposes of applying Rule 145, subsection (d)(2) thereof shall be deemed amended by substituting eighteen (18) months for one (1) year therein.
 
  (c)   Thereafter, subject to applicable securities laws, there will be no limitation on the undersigned’s ability to Transfer the Lockup Shares.
3.   Required Legends . The certificate(s) evidencing the Lockup Shares will include, in addition to any other required legends, a legend substantially similar to that set forth below, which the undersigned has read and understands:
THESE SECURITIES ARE SUBJECT TO A LOCKUP AGREEMENT, DATED AS OF OCTOBER 15, 2006, BETWEEN THE HOLDER HEREOF AND MERCATOR PARTNERS ACQUISITION CORP. WHICH RESTRICTS THE TRANSFER OF SUCH SECURITIES. A COPY OF SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF MERCATOR PARTNERS ACQUISITION CORP.
Upon release of any Lockup Shares from the restrictions on Transfer in Section 1, Buyer shall cause to be issued to such holder a certificate representing such shares without the foregoing legend within ten (10) Business Days following receipt of a written request of the holder of a certificate representing Lockup Shares so released.
4.   Stop Transfer Orders . Buyer may, from time to time, make stop transfer notations in its records and deliver stop transfer instructions to its transfer agent to the extent Buyer reasonably considers it necessary to ensure compliance with the terms of this Agreement, the Securities Act and any applicable state securities laws.

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5.   Miscellaneous .
  (a)   Notices . All notices or other communications which are required or permitted hereunder shall be in writing and sufficient if delivered personally or sent by nationally-recognized overnight courier or by facsimile, with confirmation as provided above addressed as follows:
  (i)   if to Buyer, to:
 
      Mercator Partners Acquisition Corp.
One Fountain Square
11911 Freedom Drive
Suite 1080
Reston, VA 20190
 
      with a copy to (which shall not constitute notice):
 
      Greenberg Traurig
1750 Tysons Boulevard
Suite 1200
McLean, VA 22102
Attention: Mark J. Wishner
Facsimile: (703) 714-8359
 
  (ii)   if to the undersigned, to the address set forth on the signature page hereto,
      or to such other address as the party to whom notice is to be given may have furnished to the other party in writing in accordance herewith. All such notices or communications shall be deemed to be received (i) in the case of personal delivery, on the date of such delivery, (ii) in the case of nationally-recognized overnight courier, on the next business day after the date when sent and (iii) in the case of facsimile transmission, upon confirmed receipt.
 
  (b)   Entire Agreement . This Agreement embodies the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior oral or written agreements and understandings relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement.
 
  (c)   Amendment, Modification and Waiver . This Agreement shall not be altered or otherwise amended except pursuant to an instrument in writing signed by the parties hereto. Any party to this Agreement may waive in writing any obligation owed to it by any other party to this Agreement. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.

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  (d)   Benefits of Agreement . All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, executors, administrators and permitted assigns. This Agreement may not be assigned by the undersigned without the prior written consent of Buyer, and any such assignment shall be made only in accordance with applicable laws and any such consent.
 
  (e)   Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia without reference to its conflicts of laws provisions. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the federal and state courts sitting in the Commonwealth of Virginia over any suit, action or proceeding arising out of or relating to this Agreement. The parties irrevocably and unconditionally waive any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. The parties agree that a final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon the parties and may be enforced in any other courts to whose jurisdiction other parties are or may be subject, by suit upon such judgment.
 
  (f)   Severability . In the event that any court of competent jurisdiction shall determine that any provision, or any portion thereof, contained in this Agreement shall be unenforceable in any respect, then such provision shall be deemed limited to the extent that such court deems it enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such provision, or portion thereof, wholly unenforceable, the remaining provisions of this Agreement shall nevertheless remain in full force and effect.
 
  (g)   Interpretation . The parties hereto acknowledge and agree that: (i) each party and its counsel have reviewed the terms and provisions of this Agreement; (ii) the rule of construction to the effect that any ambiguities are resolved against the drafting party shall not be employed in the interpretation of this Agreement; and (iii) the terms and provisions of this Agreement shall be construed fairly as to the parties hereto and not in favor of or against any party, regardless of which party was generally responsible for the preparation of this Agreement. Whenever used herein, the singular number shall include the plural, the plural shall include the singular, the use of any gender shall include all persons.
 
  (h)   Headings and Captions . The headings and captions of the various subdivisions of this Agreement are for convenience of reference only and shall in no way modify or affect the meaning or construction of any of the terms or provisions hereof.
 
  (i)   Counterparts . This Agreement may be executed in any number of counterparts by original or facsimile signature, each such counterpart shall be an original

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      instrument, and all such counterparts together shall constitute one and the same agreement.
[ Remainder of Page Intentionally Left Blank ]

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     IN WITNESS WHEREOF, the undersigned has duly executed this Lockup Agreement as of the day and year first above written.
         
     
       
     
     
 
     The foregoing Lockup Agreement is hereby accepted.
         
  MERCATOR PARTNERS ACQUISITION CORP.
  		 
  By:   /s/ Rhodric C. Hackman    
    Rhodric C. Hackman, President   
       
 

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October 16, 2006 09:41 AM Eastern Time
Mercator Partners Acquisition Corp. Completes Acquisitions Creating Global VNO Leader
RESTON, Va.—(BUSINESS WIRE)—Mercator Partners Acquisition Corp. (OTCBB:MPAQ, MPAQB) (“Mercator Partners” or the “Company”) today announced the acquisition of all the outstanding shares of Global Internetworking, Inc. and European Telecommunications & Technology Limited following approval by its stockholders. Mercator Partners will change its name today to Global Telecom & Technology, Inc. As a result of the acquisition of these companies, Mercator Partners’ outstanding shares of Class B common stock have been automatically converted into shares of Mercator Partners’ common stock. In accordance with the proxy, the Company was able to consummate the stock purchases by having stockholders of Global Internetworking and European Telecommunications & Technology and other parties due proceeds from the acquisitions agree to defer cash payments of over $6.2 million at the closing of the acquisitions. The Company has issued 6% promissory notes to the stockholders for their deferral. These notes become due on June 30, 2007.
The Company will be contacting the OTC Bulletin Board to cease trading in its shares of Class B common stock under the MPAQB symbol. Until that occurs, shares trading under the symbols of MPAQ and MPAQB shall represent the same class of shares of common stock. The Company is in the process of completing its application to list its common stock, Class W and Class Z warrants on Nasdaq. Mercator Partners plans to supplement this press release through the filing of a Form 8-K by Friday, October 20, 2006.
This press release contains statements about future events and expectations, which are “forward-looking statements.” Any statement in this release that is not a statement of historical fact may be deemed to be a forward-looking statement. Such forward-looking statements involve known and unknown risks, uncertainties and other factors which may cause the company’s actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. These factors should be considered in evaluating the forward-looking statements, and undue reliance should not be placed on such statements.