EX-10.1 Consulting Agreement

Exhibit 10.1

CONSULTING AGREEMENT

This Consulting Agreement (the “Agreement”) is made and entered into as of November 8, 2006, but effective as of October 20, 2006, by and between Terremark Management Services, Inc., a Florida corporation and a wholly owned subsidiary of Terremark Worldwide (the “Company”), and Guillermo Amore (the “Consultant”).

R E C I T A L S

     WHEREAS, the Company operates Internet Exchange Point facilities at strategic locations in various venues and assists users of the Internet and communications networks in communicating with other users and networks;

     WHEREAS, the Company desires to utilize the services of the Consultant, and the Consultant desires to provide such consulting services, on a non-exclusive basis, to the Company, to assist the Company in strategic advice and business development services and other matters that may be required by the Company from time to time, subject to the terms and conditions set forth herein;

     WHEREAS, the Consultant has all necessary licenses or approvals from appropriate regulatory authorities to perform the services contemplated by this Agreement.

     NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

AGREEMENT

     1. Recitals True and Correct; Consulting Services; Representations and Warranties.

          1.1 Recitals. The parties agree that the recitals set forth above are true and correct, and are incorporated as terms to this Agreement.

          1.2 Consulting Services. During the Term (as defined below), the Consultant shall provide consulting services to the Company as directed by the Company’s Chief Executive Officer. The Consultant shall devote as much time to the Company as is reasonably necessary to fulfill the duties and obligations hereunder. During the Term, Guillermo Amore shall perform the duties of the Consultant contemplated hereby, and shall not delegate such duties to any third party without the express prior written approval of Company’s CEO or other Company representative as designated by the Company in writing. The Consultant shall perform its duties to the best of its ability, and perform the services in a professional manner consistent with industry standards. The Consultant may provide consulting services to other entities, provided that the Company shall have first priority on the Consultant’s time and services. The Consultant shall be available for a monthly conference call with the CEO, or other Company representative as designated by the Company in writing, to report on the status of the activities of the Consultant, and will be available if requested by the Company to meet with Company representatives in person at the Company’s offices in Miami, Florida, so long as Consultant has been provided with five business days notice of such meeting.

          1.3 Representations and Warranties. The Consultant represents and warrants to the Company that (a) the Consultant is not party to or bound by any employment, non-compete, non-solicitation, nondisclosure, non-competition, confidentiality or similar agreement with any other person that could adversely affect its ability to carry out the duties contemplated under this Agreement; (b) all aspects of the Consultant’s work product and any Developments (as hereinafter defined) provided by the

 

Consultant shall be free of any libelous material or any material which constitutes an invasion of any right of privacy or publicity and shall not infringe upon any trademark, copyright, trade secret or other intellectual property right; (c) no use of Company provided materials shall be made other than as explicitly authorized by the Company; (d) the Consultant has invention/work product assignment, confidentiality and any other necessary agreements with all individuals who will be involved in performing services hereunder to perform its obligations hereunder and protect the Company’s Confidential Information (as hereinafter defined) and proprietary rights in and to the Consultant’s work product and Developments as required hereunder; and (e) this Agreement, when executed and delivered, shall constitute the valid and legally binding obligation of the Consultant, and the Company, enforceable against the Consultant in accordance with its terms.

     2. Term. The Term under this Agreement (the “Term”) shall commence on the date of execution hereof (the “Commencement Date”) and shall terminate upon the earlier of (a) one year from the Commencement Date (the “Expiration Date”), or (b) the date on which the Agreement is terminated prior to the Expiration Date pursuant to and in accordance with Section 5 hereof (the “Termination Date”). Notwithstanding the foregoing, the contract will automatically renew at the end of each year unless the Term may be renewed on an annual basis at the Company send the Consultant one hundred and eighty (180) days written notice to Consultant at the end of the then current term.

     3. Compensation.

          3.1 Compensation. In consideration for the consulting services to be provided to the Company by the Consultant, while this Agreement is in effect, the Consultant shall be paid a monthly consultant fee of twenty thousand dollars ($20,000) on the first business day of each month (the “Fee”). Company acknowledges the Fee for October and November 2006 is due as of the execution hereof. The Consultant shall be solely responsible for payment of all taxes or other charges imposed on its compensation hereunder. In the event that this Agreement is terminated or expires before the end of a particular month, monthly compensation shall be prorated for such end period.

          3.2 Office Use and Support Staff. The Company will provide Consultant with an office and support staff similar in all material respects to the office and support enjoyed currently by Consultant. Such support shall include, but not be limited to use of Company owned laptop and desktop computers, mobile phones and PDA’s, as well as office space and administrative staff as necessary.

          3.3 Travel/Evacuation Assistance. The Company shall make all reasonable efforts to assist Consultant in the event of an emergency affecting Consultant’s health or well being while traveling on Company business including but not limited to emergency evacuation back to the United States.

     The foregoing constitutes the all compensation to be paid to the Consultant hereunder, and the Consultant acknowledges and agrees that the Consultant is and shall not be an employee of Company, shall not be entitled to any insurance, or vacation, provided by the Company to its employees. Notwithstanding the foregoing the company, at its option, may grant the Consultant additional compensation for outstanding performance.

     4. Independent Contractor Status; Expense Reimbursement.

          4.1 Independent Contractor Status; No Agency. The Consultant is an independent contractor. Nothing herein shall be deemed to create any form of partnership, principal-agent relationship, employer-employee relationship, or joint venture between the Company and the Consultant. It is

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expressly understood by the parties that the Consultant shall not have the authority to bind the Company, without the express written consent of the Company’s CEO.

          4.2. Reimbursement of Expenses. The Consultant must obtain the prior written consent of the CEO of the Company or his delegate in order to receive reimbursement for expenses over $10,000 for which the Consultant wishes to be reimbursed. The Consultant shall account to the Company in writing for all expenses for which reimbursement is sought and shall supply to the Company copies of all relevant invoices, receipts or other evidence reasonably requested by the Company. None of the above expenses shall reduce the compensation payable to Consultant.

     5. Termination

          5.1 Reasons for Termination. This Agreement shall terminate upon the earliest to occur of the following: (i) on the date of death of Consultant; or (ii) written notice by either party to the other party with one hundred and eighty (180) days advance notice.

          5.2 Payment and Effect of Termination. In the event this Agreement is terminated prior to the Expiration Date, the Company shall have no further liability or obligation hereunder, except reimbursement of expenses incurred prior to the Termination Date, subject to the requirements of Section 4.2 hereof.

               5.2.2 No Further Obligations. Upon the payments by the Company described herein, the Company shall have no further liability or obligation to compensate the Consultant, including, but not limited to, any payment of future compensation.

          5.3 Miscellaneous. Upon any termination of this Agreement, regardless of the cause therefor, Consultant shall not be required to return any Compensation paid to him prior to the date of termination.

     6. Restrictive Covenants.

          6.1 Confidential Information. The Consultant shall not at any time divulge, communicate, use to the detriment of the Company or for the benefit of any other person or persons, or misuse in any way, any Confidential Information pertaining to the Company’s business. Any Confidential Information or data now or hereafter acquired by the Consultant with respect to the Company’s business (which shall include, but not be limited to, information concerning the Company’s financial condition, prospects, technology, customers, suppliers, sources of leads and methods of doing business) shall be deemed a valuable, special and unique asset of the Company that is received by the Consultant in confidence and as a fiduciary, and Consultant shall remain a fiduciary to the Company with respect to all of such information. For purposes of this Agreement, “Confidential Information” means all trade secrets and information disclosed to the Consultant or known by the Consultant as a consequence of or through the unique position of its engagement with the Company prior to or after the date hereof, and not generally known to telecommunications industry (other than as a result of unauthorized disclosure by the Consultant), with respect to the Company or the Company’s business, and including proprietary or confidential information received by the Company from third parties subject to an obligation on the Company’s part to maintain the confidentiality of the information. Notwithstanding the foregoing, nothing herein shall be deemed to restrict the Consultant from disclosing Confidential Information to promote the best interests of the Company.

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     7. Arbitration.

          7.1 Exclusive Remedy. The parties recognize that litigation in federal or state courts or before federal or state administrative agencies of disputes arising out of the Consultant’s engagement by the Company or out of this Agreement, or the termination of this Agreement, may not be in the best interests of either the Consultant or the Company, and may result in unnecessary costs, delays, complexities, and uncertainty. The parties agree that any dispute between the parties arising out of or relating to the Consultant’s engagement hereunder, or to the negotiation, execution, performance or termination of this Agreement, whether that dispute arises during or after termination of this Agreement, shall be resolved by arbitration in Miami-Dade County, Florida in accordance with the commercial arbitration rules of the American Arbitration Association (the “AAA”), as modified by the provisions of this Section 7 (the “Rules”, by one (1) arbitrator which Company and Consultant shall agree upon from a list provided by the AAA in accordance with the Rules. In the event of failure of the parties hereto to agree to the appointment of an arbitrator within ten (10) days after the commencement of the arbitration proceeding, such arbitrator shall be appointed by the AAA in accordance with the Rules. Except as set forth below with respect to Section 7 of this Agreement, the parties each further agree that the arbitration provisions of this Agreement shall provide each party with its exclusive remedy, and each party expressly waives any right it might have to seek redress in any other forum. Notwithstanding anything in this Agreement to the contrary, the provisions of this Section 7 shall not apply to any injunctions that may be sought with respect to disputes arising out of or relating to Section 7 of this Agreement. The parties acknowledge and agree that their obligations under this arbitration agreement survive the expiration or termination of this Agreement and continue after the termination of the relationship between the Consultant and the Company. By election of arbitration as the means for final settlement of all claims, the parties hereby waive their respective rights to, and agree not to, sue each other in any action in a federal, state or local court with respect to such claims, but may seek to enforce in court an arbitration award rendered pursuant to this Agreement. The parties specifically agree to waive their respective rights to a trial by jury, and further agree that no demand, request or motion will be made for trial by jury.

          7.2 Arbitration Procedure and Arbitrator’s Authority. In the arbitration proceeding, each party shall be entitled to engage in any type of discovery permitted by the Federal Rules of Civil Procedure, to retain their own counsel, to present evidence and cross-examine witnesses, to purchase a stenographic record of the proceedings, and to submit post-hearing briefs. In reaching his/her decision, the arbitrator shall have no authority to add to, detract from, or otherwise modify any provision of this Agreement. The arbitrator shall submit with the award a written opinion which shall include findings of fact and conclusions of law. Judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction. The award or decision shall be rendered by one arbitrator who shall be appointed by mutual agreement of the parties hereto. In the event of failure of the parties to agree within thirty (30) days after the commencement of the arbitration proceeding upon the appointment of the arbitrator, the arbitrator shall be appointed by the AAA in accordance with its Rules.

          7.3 Effect of Arbitrators’ Decision: Arbitrator’s Fees. The decision of the arbitrator shall be final and binding between the parties as to all claims which were or could have been raised in connection with the dispute, to the full extent permitted by law. In all cases in which applicable federal law precludes a waiver of judicial remedies, the parties agree that the decision of the arbitrator shall be a condition precedent to the institution or maintenance of any legal, equitable, administrative, or other formal proceeding by the Consultant in connection with the dispute, and that the decision and opinion of

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the arbitrator may be presented in any other forum on the merits of the dispute except as provided in Section 6.3. The arbitrator’s fees and expenses and all administrative fees and expenses associated with the filing of the arbitration shall be borne by the non-prevailing party.

     8. OFAC Compliance. Neither the Consultant, his employees, or businesses under his control (i) is a person whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) as amended, (ii) engages in any dealings or transactions prohibited by Section 2 of such executive order, or is otherwise associated with any such person in any manner violative of Section 2, or (iii) is a person on the list of Specially Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any other U.S. Department of Treasury’s Office of Foreign Assets Control regulation or executive order.

     9. Patriot Act; Foreign Corrupt Practices Act. The Company and the Consultant and employees or businesses under Consultant’s direct control are in compliance, in all material respects, with the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended. No part of the proceeds of the payments associated with this Agreement will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.

     10. Damages; Attorneys’ Fees. Nothing contained herein shall be construed to prevent the Company or the Consultant from seeking and recovering from the other damages sustained by either or both of them as a result of its or breach of any term or provision of this Agreement. In the event that either party hereto seeks to collect any damages resulting from, or the injunction of any action constituting, a breach of any of the terms or provisions of this Agreement, then the party found to be at fault shall pay all reasonable costs and attorneys’ fees of the other.

     11. Assignment. The Company shall have the right to assign this Agreement and its rights and obligations hereunder to any parent, wholly-owned subsidiary or to an affiliate, as well as to any corporation or other entity with or into which the Company may hereafter merge or consolidate or to which the Company may transfer all or substantially all of its assets, if in any such case said corporation or other entity shall by operation of law or expressly in writing assume all obligations of the Company hereunder as fully as if it had been originally made a party hereto, but may not otherwise assign this Agreement or its rights and obligations hereunder without the prior written consent of the Consultant. The Consultant may not assign or transfer this Agreement or any rights or obligations hereunder without the express written consent of the Company which consent shall not be unreasonably withheld.

     12. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Florida, without regard to principles of conflict of laws.

     13. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and, upon their effectiveness, shall supersede all prior agreements, understandings and arrangements, both oral and written, between the Consultant and the Company (or any of its affiliates) with respect to such subject matter.