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Exhibit 10.3
MANAGEMENT SERVICES AGREEMENT
THIS MANAGEMENT SERVICES AGREEMENT ("AGREEMENT") is made and entered
into effective as of the 11th day of April, 2001 (the "EFFECTIVE DATE"), by and
between JCM Partners, LLC, a Delaware limited liability company (the "COMPANY"),
and Computer Management Corporation, a California corporation ("CMC").
In consideration of the promises herein made and on the terms and
subject to the conditions herein contained, the Company and CMC hereby agree as
follows:
1. Engagement. The Company hereby retains CMC for the period commencing
on the Effective Date and continuing through April 30, 2002, subject to
termination as provided under Section 4 below. CMC accepts such engagement.
2. Duties.
(a) CMC will employ Xxxxx X. Ing ("ING") to act as the Chief
Executive Officer, President, Chief Financial Officer and Secretary of the
Company and cause Ing to report directly to the Company's Board of Managers
("BOARD"). Ing will have the day-to-day responsibility for the management and
direction of the Company as well as such other duties and responsibilities
commensurate with her positions with the Company.
(b) Ing will perform her duties in conformity with the reasonable
and appropriate directions of the Board. Ing will devote all of her working
time, attention and energies to the business and affairs of the Company.
(c) Ing will, subject to reasonable travel requirements on behalf of
the Company, be based at the Company's offices in Concord, California.
3. Compensation.
(a) Fee. The Company will pay to CMC a fee (the "FEE") at the
monthly rate of twenty five thousand dollars ($25,000) per month, payable
semi-monthly on the 15th and last day of each month, except that the first Fee
shall be paid on April 30, 2001 and shall cover the period from April 16, 2001
to April 30, 2001. CMC agrees and acknowledges that it has received all
compensation, and has been reimbursed all expenses, due or otherwise owing to it
for CMC's services to the Company prior to April 16, 2001. The Company will not
withhold any taxes from the Fee.
(b) Benefits. CMC will be responsible for payment of Ing's
withholding obligations and health benefits.
(c) Directors and Officers Insurance; Indemnity. The Company will
maintain at least $5,000,000 of directors and officers insurance coverage and
$5,000,000 of liability insurance. The Company will name CMC as an additional
insured. Subject to the exceptions specified in the Company's form of
Indemnification Agreement, the Company will indemnify, defend and hold CMC and
Ing harmless against any claims, costs (including legal fees) or liabilities
respecting CMC's or Ing's actions on behalf of the Company.
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(d) Reimbursement. The Company will reimburse CMC for its reasonable
Company-related expenses.
4. Termination.
(a) Termination at Will by Either Party. The Company may terminate
this Agreement, for any reason or for no reason, upon 30 days' written notice to
CMC; provided, however, that nothing in this Agreement shall limit or restrict
the ability of the Board to terminate Ing's officer and other positions with the
Company at any time and without prior notice. CMC may terminate this Agreement,
for any reason or for no reason, upon 90 days' written notice to the Company.
(b) Death or Permanent Disability of Ing. This Agreement will
terminate automatically upon the death or permanent disability of Ing. Ing will
be deemed permanently disabled for the purpose of this Agreement if in the good
faith determination of the Board, Ing has become physically or mentally
incapable of performing her duties hereunder for a continuous period of 90 days,
in which event Ing will be deemed permanently disabled upon the expiration of
such 90-day period. In the event of a termination of this Agreement due to the
death or permanent disability of Ing, CMC will be entitled only to the Fee
earned through the date of such death or permanent disability in accordance with
Section 3.
(c) Compensation Upon Termination. Upon termination of this
Agreement, CMC will be entitled to: (A) the compensation provided for in Section
3(a) hereof for the period of time ending with the date of termination; and (B)
reimbursement for such expenses as CMC may have properly incurred on behalf of
the Company as provided in Section 3(d) above prior to the date of termination.
5. Assignment and Transfer.
(a) Company. This Agreement may not be assigned by the Company to
any purchaser of all or substantially all of the Company's business or assets
without the written consent of CMC.
(b) CMC. CMC's rights and obligations under this Agreement will not
be transferable by CMC by assignment or otherwise, except with the prior written
consent of the Company. Any purported assignment, transfer or delegation thereof
will be void.
6. Confidentiality. CMC agrees that all trade secrets, confidential or
proprietary information with respect to the activities and businesses of the
Company including, without limitation, personnel information, business plans,
marketing plans, forecasts, strategies and information which have been or are
learned by CMC in the course of its employment by the Company (collectively,
"PROPRIETARY INFORMATION") will be kept and held in confidence and trust by CMC.
CMC will not use or disclose Proprietary Information except as necessary in the
normal course of the business of the Company for its sole and exclusive benefit,
unless CMC is compelled so to disclose under process of law, in which case CMC
will first notify the Company promptly after receipt of a demand to so disclose.
CMC agrees and acknowledges that it will cause Ing to comply with the terms of
Section 6 of this Agreement.
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7. Arbitration. Any dispute hereunder will be submitted to binding
arbitration before a single arbitrator in accordance with the Employment Dispute
Resolution Rules of the American Arbitration Association, provided that: (i) the
arbitrator will be instructed and empowered to take whatever steps to expedite
the arbitration as he or she deems reasonable; (ii) each party will pay fifty
percent (50%) of the fees of the arbitration; (iii) the arbitrator's judgment
will be final and binding upon the parties, except that it may be challenged on
the grounds of fraud or gross misconduct; and (iv) the arbitration will be held
in San Francisco, California. Judgment upon any verdict in arbitration may be
entered in any court of competent jurisdiction. The parties hereby consent to
the jurisdiction of, and proper venue in, the federal and state courts located
in San Francisco, California. The procedures specified in this Section 7 will be
the sole and exclusive procedures for the resolution of disputes and
controversies between the parties arising out of or relating to this Agreement;
provided, however, that a party may seek a preliminary injunction or other
provisional judicial relief if in its judgment such action is necessary to avoid
irreparable damage or to preserve the status quo. Despite such action the
parties will continue to participate in good faith in the procedures specified
in this Section 7.
8. Independent Contractor. It is the express intention of the parties
that CMC is an independent contractor and neither it nor Ing are employees of
the Company. CMC reserves the right to determine the method, manner and means by
which the services will be performed. CMC shall not be entitled to employ anyone
other than Ing to perform the services provided by this Agreement, without the
express written consent of the Company. Unless specifically requested by the
Company, CMC is not required to perform the services during a fixed hourly or
daily time.
9. Miscellaneous.
(a) Governing Law; Interpretation. This Agreement will be governed
by the substantive laws of the State of California applicable to contracts
entered into and fully performed in such jurisdiction. The headings and captions
of the Sections of this Agreement are for convenience only and in no way define,
limit or extend the scope or intent of this Agreement or any provision hereof.
This Agreement will be construed as a whole, according to its fair meaning, and
not in favor of or against any party, regardless of which party may have
initially drafted certain provisions set forth herein.
(b) Notices. Any notice, request, claim or other communication
required or permitted hereunder will be in writing and will be deemed to have
been duly given if delivered by hand or if sent by Federal Express to CMC at the
address set forth below its signature, or to the Company at its address as set
forth below its signature, or to such other address or addresses as either party
may have furnished to the other in writing in accordance herewith.
(c) Entire Agreement; Amendments. This Agreement constitutes the
final and complete expression of all of the terms of the understanding and
agreement between the parties hereto with respect to the subject matter hereof,
and this Agreement replaces and supersedes any and all prior or contemporaneous
negotiations, communications, understandings, obligations, commitments,
agreements or contracts, whether written or oral, between the parties respecting
the subject matter hereof. This Agreement may not be modified, amended, altered
or supplemented except by means of the execution and delivery of a written
instrument mutually executed by both parties.
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(d) Attorneys' Fees. In the event it becomes necessary for any party
to initiate arbitration or any other proceeding to enforce, defend or construe
such party's rights or obligations under this Agreement, the prevailing party
(i.e., the party receiving substantially the benefits or relief sought by that
party), except as provided in clause (ii) of Section 7 of this Agreement, will
be entitled to its reasonable costs and expenses, including attorneys' fees,
incurred in connection with such arbitration or proceeding whether or not
brought to final judgment.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
JCM PARTNERS, LLC, a Delaware limited COMPUTER MANAGEMENT
liability company CORPORATION, a California corporation
By: By:
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Name: Xxxxxx Xxxxxx Name: Xxxxxxx Xxxxx
Its: Vice Chairman of the Board Its: President
0000 Xxxxxx Xxxxxx, Xxxxx 000 000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000 Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
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