exh10-3_1392139.htm


    
       

      
         


        
          EXHIBIT
10.3

        

      

    


    THIS
PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), AND MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO SUCH SECURITIES UNDER THE ACT OR AN OPINION OF
COUNSEL SATISFACTORY TO THE PURCHASER THAT SUCH REGISTRATION IS NOT
REQUIRED.

     

     

    GLOBAL
TELECOM & TECHNOLOGY AMERICAS, INC.

     

    PROMISSORY
NOTE

     

    $125,000                                                December 16, 2009

     

    FOR VALUE
RECEIVED, by this Promissory Note (this “Note”), Global
Telecom & Technology Americas, Inc., a Virginia corporation (the “Purchaser”), hereby
promises to pay to the order of Scott Charter or his permitted assigns
(the “Seller”), the
principal amount of one hundred twenty-five thousand dollars ($125,000), without
interest, on the following terms and conditions:

    


    1.           Background.  This
Note is one of the promissory notes constituting the “Notes U.S. Transaction
Consideration” under the Purchase Agreement, dated as of November 2, 2009, by
and among the Purchaser; GTT-EMEA, Limited, a company organized under the laws
of the United Kingdom; WBS Connect, L.L.C., a Colorado limited liability
company; TEK Channel Consulting, LLC, a Colorado limited liability company; WBS
Connect Europe Ltd., a company formed under the laws of Ireland; the Seller and
Michael Hollander (the “Purchase
Agreement”).  This Note is guaranteed by Global Telecom &
Technology, Inc., a Delaware corporation, as provided in that certain Guarantee
made in favor of the Seller dated as of the date hereof.  Any
capitalized terms used but not defined herein have the respective meanings set
forth in the Purchase Agreement.  In the event of any inconsistency
between this Note and the Purchase Agreement, the Purchase Agreement shall
control and govern.

     

    2.           Payments.  The
outstanding principal on this Note shall be repaid in ten (10) equal monthly
installment payments of twelve thousand five hundred dollars ($12,500) each,
starting on the first calendar month after the date of this Note, each of which
shall be paid by the Purchaser to the Seller by the fifteenth (15th) day of the
applicable calendar month.  All payments of principal on this Note
shall be in lawful money of the United States of America.  This Note
may be prepaid by the Purchaser at any time, without premium or
penalty.

     

    3.           Unsecured Obligation;
Subordination.  The Purchaser’s obligations to the Seller under
this Note are unsecured and are subordinated to all existing and hereafter
incurred debt obligations of the Purchaser.  The Seller agrees to
promptly execute and deliver to the Purchaser such subordination agreements,
intercreditor agreements and other documents as are requested from time to time
by the Purchaser’s lenders in order to provide for or fully implement such
subordination.

     

    4.           Cancellation.  The
Purchaser’s obligations to the Seller under this Note are subject to
cancellation as provided in the Purchase Agreement.

     

    5.           Event of
Default.  There shall be deemed to have occurred an “Event of Default”
under this Note in the event of: (a) the Purchaser’s failure to pay any portion
of the outstanding principal under this Note when the same becomes due and
payable in accordance with the terms hereof; (b) the Purchaser’s breach or
violation of any other provision of this Note that has not, to the extent
curable, been cured within thirty (30) days after the Seller has provided
written notice thereof to the Purchaser; or (c) any custodian, trustee,
receiver, agent or similar official being appointed for the Purchaser, the
Purchaser commencing a voluntary case or proceeding under the U.S. Bankruptcy
Code or an assignment for the benefit of creditors proceeding, a proceeding
under any other state or federal insolvency law (collectively, “Insolvency
Laws”)

     


    
      
         


      

      
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    or an
involuntary case or proceeding being commenced against the Purchaser under any
Insolvency Law that is not dismissed within sixty (60) days after being
commenced.  Upon the occurrence and during the continuation of any
Event of Default, the Seller shall have the option (but not be required) to
declare the entire outstanding principal and accrued and unpaid interest on this
Note immediately due and payable and to exercise any and all rights and remedies
available to it under applicable law with respect to such
obligation.

     

    6.           Collection
Matters.  The Purchaser will pay all reasonable costs of
collection on this Note, including reasonable attorneys’ fees, incurred by the
Seller upon and during the continuance of any Event of Default under this
Note.  The Purchaser irrevocably waives presentment, demand for
payment, protest and notice of protest, notice of dishonor and all other legal
formalities in connection with collection of this Note (but not any notice
expressly provided for under this Note or the Purchase Agreement).

     

    7.           Lost or Destroyed
Note.  If this Note is mutilated, lost, stolen or destroyed,
the Purchaser shall execute and deliver, in exchange and substitution for and
upon cancellation of a mutilated Note, or in lieu of or in substitution for a
lost, stolen or destroyed Note, a new Note, but only upon receipt by the
Purchaser from the Seller of: (a) if this Note has been mutilated, the mutilated
Note; or (b) if this Note has been lost, stolen or destroyed, reasonable
evidence of loss, theft or destruction and an agreement reasonably satisfactory
to the Purchaser in which the Seller agrees to indemnify the Purchaser for any
losses relating to such Note, duly executed by the Seller.

     

    8.           Savings
Clause.  The Purchaser and the Seller intend to comply at all
times with applicable usury and other laws limiting the amount of interest that
may be charged or collected upon borrowed money.  If, at any time, any
such laws would be violated by any amounts called for under this Note, it is the
Purchaser’s and the Seller’s express intention that the Purchaser not be
required to pay any interest on this Note at a rate in excess of the maximum
lawful rate then allowed and the amount of interest payable hereunder shall be
reduced to the greatest amount that may be charged in compliance with applicable
law.  The provisions of this Section 8 shall
supersede and control over all other provisions of this Note which may be in
apparent conflict hereunder.

     

    9.           Miscellaneous
Provisions.

     

    (a)           Expenses.  Except
as otherwise specifically provided for in this Note, the parties shall each bear
all of their respective expenses, costs and fees (including attorneys’,
auditors’ and financing fees, if any) incurred in connection with the
transactions contemplated hereby.

     

    (b)           Notices.  All
notices, requests, demands, waivers and other communications required or
permitted to be given under this Note shall be in writing and shall be deemed to
have been duly given if: (i) delivered personally; (ii) mailed using certified
or registered mail with postage prepaid; or (iii) sent by next-day or
overnight mail or delivery using a nationally recognized overnight courier
service, as follows:

     

    If to the
Purchaser:              Global
Telecom & Technology, Inc.

    8484
Westpark Drive, Suite 720

    McLean,
VA 22102

    Attention:
Christopher McKee, General Counsel

    


    with
a copy (which shall not constitute notice) to:

    


    Kelley
Drye & Warren LLP

    3050 K
Street, N.W., Suite 400

    Washington,
D.C. 20007

    Attention:  Brad
E. Mutschelknaus, Esq.


    
      
         


      

      
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    If to the
Seller:                      Scott
Charter

    8655 West Wesley Place

    Lakewood,
CO 80227

    


    with
a copy (which shall not constitute notice) to:

    


    Burns
Figa & Will, P.C.

    6400 S.
Fiddlers Green Circle, Suite 1000

    Greenwood
Village, CO 80111

    Attention: Theresa
M. Mehringer, Esq.

    


    A party
may designate a new address to which communications shall thereafter be
transmitted by providing written notice to that effect to the other
party.  Each communication transmitted in the manner described in this
Section 9(b)
shall be deemed to have been provided, received and become effective for all
purposes at the time it shall have been: (x) delivered to the addressee as
indicated by the return receipt (if transmitted by mail) or the affidavit or
receipt of the messenger (if transmitted by personal delivery or courier
service); or (y) presented for delivery to the addressee as so addressed during
normal business hours, if such delivery shall have been rejected, denied or
refused for any reason or, in each case, at such other address as may be
specified in writing to the other party hereto.

    


    (c)           Assignment;
Successors.  This Note and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns.  The Seller may not sell, assign or
otherwise transfer this Note or any right or interest herein without the prior
written consent of the Purchaser, except that, subject to compliance with
applicable federal and state securities laws, this Note may be transferred by
the Seller to any Affiliate of the Seller, provided that the Seller delivers to
the Purchaser an instrument reasonably satisfactory to the Purchaser in which
the transferee agrees to be subject to all of the terms and conditions
hereof.  Neither this Note nor any of the rights, interests or
obligations hereunder may be assigned or delegated by the Purchaser without the
prior written consent of the Seller, except that the Purchaser shall have the
right, without the consent of the Seller but with prior notice to the Seller,
to: (i) assign its rights and obligations hereunder to any successor of all or
substantially all of its business or assets that assumes this Note; and (ii)
collaterally assign its rights hereunder to any lender.  Any purported
sale, assignment, transfer or delegation in violation of this Section 9(c) will be
null and void.  For purposes of this Note, the term “Affiliate” means a
person’s ancestors, descendants or spouse or trusts, family limited partnerships
or family limited liability companies established and maintained for the benefit
of the first person or any of such other persons.

     

    (d)           Amendment;
Waiver.  No purported amendment or modification to any
provision of this Note shall be binding upon the parties to this Note unless the
Purchaser and the Seller have each duly executed and delivered to the other
party a written instrument which states that it constitutes an amendment or
modification (as applicable) to this Note and specifies the provision(s) that
are being amended or modified (as applicable).  No purported waiver of
any provision of this Note shall be binding upon any party to this Note unless
the party providing the waiver has duly executed and delivered to the other
party a written instrument which states that it constitutes a waiver of one or
more provisions of this Note and specifies the provision(s) that are being
waived.  Any such waiver shall be effective only to the extent
specifically set forth in such written instrument.  Neither the
exercise (from time to time and at any time) by a party of, nor the delay or
failure (at any time or for any period of time) to exercise, any right, power or
remedy shall constitute a waiver of the right to exercise, or impair, limit or
restrict the exercise of, such right, power or remedy or any other right, power
or remedy at any time and from time to time thereafter.  No waiver of
any right, power or remedy of a party shall be deemed to be a waiver of any
other right, power or remedy of such party or shall, except to the extent so
waived, impair, limit or restrict the exercise of such right, power or
remedy.

     


    
      
         


      

      
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    (e)           Entire
Agreement.  This Note and the Purchase Agreement constitute the
entire agreement and supersede all of the previous or contemporaneous contracts,
representations, warranties and understandings (whether oral or written) by or
between the parties with respect to the subject matter hereof, including any
letter of intent, exclusivity agreement, term sheet or memorandum of terms
entered into or exchanged by the parties.

     

    (f)           Severability.  If
any provision of this Note shall hereafter be held to be invalid, unenforceable
or illegal, in whole or in part, in any jurisdiction under any circumstances for
any reason: (i) such provision shall be reformed to the minimum extent necessary
to cause such provision to be valid, enforceable and legal while preserving the
intent of the parties as expressed in, and the benefits to such parties provided
by, such provision; or (ii) if such provision cannot be so reformed, such
provision shall be severed from this Note and an equitable adjustment shall be
made to this Note (including addition of necessary further provisions to this
Note) so as to give effect to the intent as so expressed and the benefits so
provided.  Such holding shall not affect or impair the validity,
enforceability or legality of such provision in any other jurisdiction or under
any other circumstances.  Neither such holding nor such reformation or
severance shall affect or impair the legality, validity or enforceability of any
other provision of this Note.

     

    (g)           Governing
Law.  THIS NOTE SHALL BE CONSTRUED, PERFORMED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY
CHOICE OR CONFLICT OF LAW PROVISION (WHETHER OF THE STATE OF DELAWARE OR ANY
OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE.

     

    (h)           Consent to
Jurisdiction.  EACH PARTY AGREES THAT ANY AND ALL PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY
SHALL BE COMMENCED AND PROSECUTED EXCLUSIVELY IN ANY STATE OR FEDERAL COURT
LOCATED IN THE COMMONWEALTH OF VIRGINIA AND ANY APPELLATE COURTS THEREFROM
(COLLECTIVELY, “VIRGINIA COURTS”) AND
EACH PARTY IRREVOCABLY WAIVES ANY RIGHT TO OBJECT TO SUCH VENUE.  EACH
PARTY CONSENTS AND SUBMITS TO THE NON-EXCLUSIVE PERSONAL JURISDICTION OF ANY OF
THE VIRGINIA COURTS IN RESPECT OF ANY SUCH PROCEEDING.  EACH PARTY
CONSENTS TO SERVICE OF PROCESS UPON IT WITH RESPECT TO ANY SUCH PROCEEDING BY
REGISTERED MAIL, RETURN RECEIPT REQUESTED, AND BY ANY OTHER MEANS PERMITTED BY
APPLICABLE LAWS.

     

    (i)           Waiver of Punitive and Other
Damages and Jury Trial.

     

    (i)           THE
PARTIES EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO RECOVER PUNITIVE, EXEMPLARY,
LOST PROFITS, CONSEQUENTIAL OR SIMILAR DAMAGES IN ANY PROCEEDING ARISING OUT OF
OR RESULTING TO THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY.

     

    (ii)           EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY PROCEEDING ARISING UNDER OR RELATING TO
THIS NOTE AND THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE OR THE TRANSACTIONS
CONTEMPLATED HEREBY.

     

    (iii)           EACH
PARTY CERTIFIES AND ACKNOWLEDGES THAT: (A) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,

     


    
      
         


      

      
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    EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY PROCEEDING
ARISING UNDER OR RELATING TO THIS NOTE, SEEK TO ENFORCE EITHER OF THE FOREGOING
WAIVERS; (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH
WAIVERS; (C) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT HAS BEEN
INDUCED TO ENTER INTO THIS NOTE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION
9(i).

     

    (j)           Remedies.  Each
of the parties shall have and retain all rights and remedies, at law or in
equity, including rights to specific performance and injunctive or other
equitable relief, arising out of or relating to a breach or threatened breach of
this Note.  Without limiting the generality of the foregoing, each of
the parties acknowledges that money damages would not be a sufficient remedy for
any breach or threatened breach of this Note and that irreparable harm would
result if this Note were not specifically enforced.  Therefore, the
rights and obligations of the parties shall be enforceable by a decree of
specific performance issued by any court of competent jurisdiction, and
appropriate injunctive relief may be applied for and shall be granted in
connection therewith, without the necessity of posting a bond or other security
or proving actual damages and without regard to the adequacy of any remedy at
law.  A party’s right to specific performance or injunctive relief
shall be in addition to all other legal or equitable remedies available to such
party.

     

    (k)           Third Party
Beneficiaries.  No Person other than the Purchaser and the
Seller is, is intended to be, or shall be a beneficiary of this Note, other than
any permitted successors and assigns of the parties under Section 9(c).

     

    (l)           Interpretation.  The
headings contained in this Note are for purposes of convenience only and shall
not affect the meaning or interpretation of this Note.  The language
used in this Note shall be deemed to be the language chosen by the parties to
express their mutual intent and no rule of strict construction shall be applied
against any party.  Unless otherwise expressly specified in this Note:
(i) the words “hereof”, “hereby” and “hereunder,” and
correlative words, refer to this Note as a whole and not any particular
provision; (ii) the words “include”, “includes” and “including”, and
correlative words, are deemed to be followed by the phrase “without limitation”;
(iii) the word “or” is not exclusive
and is deemed to have the meaning “and/or”; (iv)
references in this Note to a “party” means the
Purchaser or the Seller and to the “parties” means the
Purchaser and the Seller; (v) the masculine, feminine or neuter form of a word
includes the other forms of such word and the singular form of a word includes
the plural form of such word; (vi) references to a Person shall include the
successors and assigns thereof; (vii) references made in this Note to a Section
mean a Section of this Note; and (viii) references to any Contract are to that
Contract as amended, modified or supplemented from time to time in accordance
with the terms thereof.

     

    (m)           Counterparts.  This
Note may be signed in any number of counterparts, each of which (when executed
and delivered) shall constitute an original instrument, but all of which
together shall constitute one and the same instrument,
respectively.  This Note shall become effective and be deemed to have
been executed and delivered by each of the parties at such time as counterparts
hereto shall have been executed and delivered by all of parties, regardless of
whether all of the parties have executed the same
counterpart.  Counterparts may be delivered via facsimile or other
electronic transmission and any counterpart so delivered shall be deemed to have
been duly and validly delivered and be valid and effective for all
purposes.

     

     

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    IN WITNESS WHEREOF, the parties hereto
have executed this Note as of the date first written above.

    


    


    
      	 
      	
              THE
      PURCHASER:

            
	 
      	 
      
	 
      	
              GLOBAL
      TELECOM & TECHNOLOGY AMERICAS, INC.

            
	 
      	 
      	 
      
	 
      	
              By:

            	/s/
      Chris McKee  
	 
      	 
      	
              Name: 
      Chris McKee

            
	 
      	 
      	
              Title:    
      Secretary and General Counsel

            


    

    


    


    


    
      	
              AGREED AND
      ACCEPTED:

            	 
      	 
      
	 
      	 
      
	 
      	 
      
	
              THE
      SELLER:

            	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 /s/
      Scott Charter 	 
      	 
      
	
              Scott
      Charter

            	 
      	 
      


    

    



    
      
         


      

      
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