EXHIBIT 10.1
MANAGEMENT AGREEMENT
MANAGEMENT AGREEMENT
Management Agreement made as of 23RD OF JUN 2005, by and between InTouch
Media Group, Inc., a Florida corporation, with its principal place of business
at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000 (the "Company"), and The
RC&A Group, Inc. located at 000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000
("Consultant").
W I T N E S S E T H:
WHEREAS, the Company desires to employ Consultant as its Senior Vice
President of Sales and Marketing, Senior Vice President of New Business
Development and Senior Vice President of Administration, and Consultant is
willing to serve in such capacity; and
WHEREAS, the Company and Consultant desire to set forth the terms and
conditions of such an engagement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Company and Consultant agree as follows:
1. ENGAGEMENT.
(a) Effective as of the date hereof, the Company hereby agrees to employ
Consultant, and Consultant agrees to be engaged by the Company, on the terms and
conditions herein contained as its Senior Vice President of Sales & Marketing
over the Marketing and Sales Division and the New Business Development Division
and Senior Vice President of Administration, or in such other Consultant
managerial position or positions with the Company or its subsidiaries or
affiliates as shall hereafter be designated by the Board of Directors of the
Company. Consultant shall report to the Chief Executive Officer of the Company
(the "CEO") and shall have such duties, authority and responsibilities
commensurate with Consultant's position for similarly sized companies in the
industry.
(b) Consultant shall devote a significant amount of its business time,
energy, skill and efforts to the performance of its duties hereunder and shall
faithfully and diligently serve the Company. The foregoing shall not prevent
Consultant from participating in not-for-profit activities or from entering into
consulting agreements with other companies or business entities or to manage its
passive personal investments, provided that these activities do not materially
interfere with Consultant's obligations hereunder.
(c) Upon the request of the Board, Consultant shall also serve as a
director or officer of subsidiaries in positions commensurate with its position
with the Company without additional compensation. If any compensation is paid
Consultant by such subsidiaries, they shall be a credit against amounts due
hereunder.
2. TERM OF ENGAGEMENT.
(a) Except for earlier termination as provided in Section 7 hereof or as
extended in this Section 2, Consultant's engagement under this Agreement (the
"Engagement Term") shall commence on the date hereof (the "Commencement Date")
and continue through 11 June 2008.
The Engagement Term shall be automatically renewed for successive one-year terms
unless either party gives written notice to the other at least 45 days prior to
the expiration of the
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then Engagement Term, of such party's intention to terminate Consultant's
Engagement hereunder at the end of the then current Engagement Term.
(b) Notwithstanding anything else herein, the provisions of Sections 8 and
9 hereof shall survive and remain in effect notwithstanding the termination of
the Engagement Term or a breach by the Company or Consultant of this Agreement
or any of Its terms.
3. COMPENSATION.
(a) As compensation for his services under this Agreement, the Company
shall pay Consultant a Fee (the "Fee") as set forth on Exhibit A hereto. Payment
of the Fee shall be made in equal installments on a weekly basis.
(b) In addition to the Fee, the Company shall pay Consultant a bonus in
accordance with the schedule set forth on Exhibit A hereto. Such schedule may be
revised from year to year by agreement of the parties hereto.
4. BENEFITS AND FRINGES.
(a) During the Engagement Term, Consultant shall be entitled to such
benefits or fringes (or a reasonable equivalent), if any, as are generally
provided from time to time by the Company to its executive officers, including
pension, retirement, savings, welfare (including life and health insurance) and
other benefit plans and arrangements, if applicable.
(b) Except as otherwise specifically provided herein, the Consultant shall
be responsible for the tax consequences of all benefits and fringes.
5. EXPENSES. The Company shall reimburse Consultant in accordance with its
expense reimbursement policy as is in effect from time to time for all
reasonable expenses incurred by Consultant in connection with the performance of
its duties under this Agreement upon the presentation by Consultant of an
itemized account of such expenses and appropriate receipts and otherwise in
compliance with such rules relating thereto as the Company may, from time to
time, adopt.
6. VACATION. During the Engagement Term, Consultant shall be entitled to
vacation in accordance with the Company's practices.
7. TERMINATION.
(a) Consultant's Engagement under this Agreement and the Engagement Term
shall terminate upon any of the following events:
(i) Automatically on the date of Consultant's closing of its
business or cessation of business operations;
(ii) Upon written notice given by the Company to Consultant if
Consultant is unable to substantially perform its material duties hereunder for
one hundred eighty (180) continuous days during any period of three hundred
sixty (360) consecutive days by reason of physical or mental incapacity;
(iii) Upon written notice by the Company to Consultant for Cause.
Cause shall mean (a) Consultant being convicted of (or pleading nolo contendere
to) a felony (other than a traffic violation) or a crime involving fraud,
misappropriation, or embezzlement; (b)
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refusal of the Consultant to attempt to properly perform its obligations under
this Agreement, or follow any direction of the CEO consistent with this
Agreement, which in either case is not remedied within thirty (30) business days
after receipt by Consultant of written notice from the Company specifying the
details thereof, provided the refusal to follow a direction shall not be Cause
if Consultant in good faith reasonably believes that such direction is not
legal, ethical or moral and i promptly notifies the CEO in writing of such
belief; (c) Consultant's gross negligence with regard to its duties or willful
misconduct with regard to the business, assets or employees of the Company; or
(d) any other breach by Consultant of a material provision of this Agreement
that remains uncured for thirty (30) business days after written notice
thereof is given to Consultant or such longer period as may reasonably be
required to remedy the default, provided that the Consultant endeavors in good
faith to remedy the default; or
(iv) Upon written notice by the Company without Cause.
(b) Upon termination of the Engagement Term, Consultant shall be promptly
paid any unpaid fees through the date of termination and reimbursement for any
expenses incurred in connection with the official business of the Company prior
to his date of termination which he would be otherwise entitled to reimbursement
for in accordance with the Company's policies on the reimbursement of business
expenses and any benefits or amounts under any benefit or equity plan in
accordance with the terms of said plan and any fringe benefits due for the
period prior to such termination. In addition, Consultant shall be paid any
earned, but unpaid, bonus.
(c) If Consultant's termination is pursuant to subsection (a)(i) above,
Consultant's Successors and/or Assigns shall continue to receive payments of
Consultant's Fee, at the same time such amounts would have been paid if
Consultant were still engaged by the Company for a period of eighteen (18)
months following Consultant's closing of its business or cessation of business
operations.
(d) If Consultant's termination is pursuant to subsection (a)(ii) above,
Consultant shall be entitled to receive for eighteen months (18) months
following the termination of Consultant's Engagement, at the same time as it
would have been paid if Consultant were still engaged by the Company, its Fee.
(e) if Consultant's termination is pursuant to subsection (a)(iv) above,
or if Consultant receives a notice of non-renewal from the Company pursuant to
Section 2(a), Consultant shall receive:
(i) for twelve (12) months following the termination of Consultant's
Engagement, at the same time as it would have been paid if Consultant were still
engaged by the Company, his Fee; and
(ii) at the end of such twelve (12) month period, an amount equal to
three-quarters (3/4) of the maximum Bonus for which Consultant was eligible
during the fiscal year of termination of Consultant's Engagement, which amount
shall be payable in a lump sum on the twelfth month anniversary of such
termination.
8. CONFIDENTIAL INFORMATION. Consultant has entered into a Non-Disclosure
Agreement of even date herewith, which agreement is attached hereto and made a
part hereof as though fully set forth herein.
9. INDEMNIFICATION. During the Engagement Term and thereafter, the Company
shall indemnify Consultant to the fullest extent permitted by law against any
judgments,
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fines, amounts paid in settlement and reasonable expenses (including attorneys'
fees), and advance amounts necessary to pay the foregoing at the earliest time
and to the fullest extent permitted by law, In connection with any claim, action
or proceeding (whether civil or criminal) against Consultant (other than a claim
brought by the Company) as a result of Consultant serving as an officer or
director of the Company or in any capacity at the request, of the Company, in
or with regard to any other entity, employee benefit plan or enterprise. This
indemnification shall be in addition to, and not in lieu of, any other
indemnification Consultant shall be entitled to pursuant to the Company's
Certificate of Incorporation or Bylaws or otherwise. Following Consultant's
termination of Engagement, the Company shall continue to cover Consultant under
the Company's directors and officers insurance for the period during which
Consultant may be subject to potential liability for any claim, action or
proceeding (whether civil or criminal) as a result of his service as an officer
or director of the Company or in any capacity at the request of the Company, at
the highest level then maintained for any then or former officer or director.
10. CONSULTANT REPRESENTATION. Consultant represents and warrants that he
is not limited under any contractual or other provision from entering into this
Agreement and performing his obligations hereunder.
11. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the full
and complete understanding of the parties hereto and will supersede all prior
agreements and understandings, oral or written, with respect to the subject
matter hereof. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, oral or otherwise, have
been made by either party, or anyone acting on behalf of either party, which are
not embodied herein and that no other agreement, statement or promise not
contained in this Agreement shall be valid or binding. This Agreement may not be
modified or amended except by an instrument in writing signed by the party
against whom or which enforcement may be sought.
12. SEVERABILITY. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or enforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
13. WAIVER OF BREACH. The waiver by any party of a breach of any
provisions of this Agreement, which waiver must be in writing to be effective,
shall not operate as or be construed as a waiver of any subsequent breach.
14. NOTICES. All notices hereunder shall be in writing and shall be deemed
to have been duly given when delivered by hand, or one (1) day after sending by
United States Postal Service express mail or other "overnight mail service," or
three (3) days after sending by certified or registered mail, postage prepaid,
return receipt requested. Notice shall be sent as follows: if to Consultant, to
his address as listed in the Company's records; and if to the Company, at Its
office as set forth at the head of this Agreement. Either party may change the
notice address by notice given as aforesaid.
15. ASSIGNABILITY; BINDING EFFECT. This Agreement shall be binding upon
and inure to the benefit of Consultant and Consultant's successors and assigns,
and shall be binding upon and inure to the benefit of the Company, its
successors and assigns. This Agreement may not be assigned by Consultant. This
Agreement may not be assigned by the Company except in connection with a merger
or a sale by the Company of all or substantially all of its assets, and then
only provided that the assignee specifically assumes in writing all of the
Company's obligations hereunder.
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16. ARBITRATION. Any dispute or controversy arising under or in connection
with this Agreement, other than injunctive relief under Section 8 (provided that
Consultant may bring an arbitration to recover legal fees in connection with
such injunctive activities under the last sentence of this Section 16) shall be
settled exclusively by arbitration, conducted before a panel of three
arbitrators in Clearwater, Florida, in accordance with the rules of the American
Arbitration Association then in effect, and judgment may be entered on the
arbitrators' award in any court having jurisdiction. The decision of the
arbitrators shall be final and binding on the parties. The parties shall equally
divide all costs of the American Arbitration Association and the arbitrator,
except that the arbitrators shall direct the Company to reimburse Consultant's
portion of the cost on the same basis as set forth in the next sentence with
regard to legal fees. Each party shall bear its own legal fees in any dispute
except that, in the event the Consultant prevails on any material issue, the
arbitrators shall award the Consultant his legal fees attributable to all
matters other than frivolous positions taken by the Consultant (as determined by
the arbitrator).
17. GOVERNING LAW. All issues pertaining to the validity, construction,
execution and performance of this Agreement shall be construed and governed in
accordance with the laws of the State of Florida, without giving effect to the
conflict or choice of law provisions thereof.
18. HEADINGS. The headings in this Agreement are intended solely for
convenience or reference and shall be given no effect in the construction or
interpretation of this Agreement.
19. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed and Consultant has hereunto set his hand as of the date first set forth
above.
INTOUCH MEDIA GROUP, INC. The RC&A Group, Inc.
By: /s/ Xxxxx Xxxxxxxx /s/ Xxxxxx Xxxxxx
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Xxxxx Xxxxxxxx Xxxxxx Xxxxxx, President
Chief Executive Officer The RC&A Group, Inc.
On behalf of Company On behalf of Consultant
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EXHIBIT A
COMPENSATION
The Company shall pay Consultant a Fee of $6,000 per week from the date hereof
through 11 June 2008. In the event that the Engagement Agreement is renewed
automatically pursuant to Section 2(a) and the parties do not mutually agree
otherwise, the Fee shall be increased by 6% on June 12th, 2008 and by 6% on the
first date of each successive one-year term thereafter, if any.
INCENTIVE
In addition, Consultant shall be eligible to receive a bonus of stock options
each quarter in accordance with the InTouch Media Group Senior Management
Incentive Plan. Consultant shall receive an option to purchase 250,000 shares of
the Company stock each quarter at a price equal to 50% discount of the price of
such shares on the date of the execution of this Agreement in the event that the
Company's Gross Revenues for a given quarter exceed the Gross Revenues for the
same quarter of the prior year. In addition to this, Consultant shall receive an
option to purchase another 250,000 shares of Company stock each quarter on the
same terms as above if the Company's overall profitability improves in a given
quarter as compared to the same quarter from the preceding year. The Company
will use its best efforts to promptly register shares that Consultant has the
right to purchase and will provide piggy back rights to Consultant as regards
such shares. Profitability improvement is defined as the Company showing either
an increase in pre-tax profits or decrease in losses.
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NON-DISCLOSURE AGREEMENT
THIS NON-DISCLOSURE AGREEMENT ("Agreement" hereafter), made as of this
23RD day of JUNE, 2005, by and among In Touch Media Group, Inc. ("ITMG"), a
Florida based corporation and The RC&A Group, Inc. ("RCAG").
WHEREAS, the above parties contemplate entering into a Management
Agreement whereby RCAG will supply ITMG with requested services, and
WHEREAS, the RCAG, is the Receiving Party; and
WHEREAS, ITMG is the Disclosing Party; and
WHEREAS, in connection with such a Management Agreement, Receiving Party
will have access to certain confidential proprietary information of Disclosing
Party; and
WHEREAS, this Agreement shall memorialize the understanding existing at
all times between the parties regarding the non-disclosure of certain
information made available to Receiving Party;
NOW THEREFORE, in consideration of the premises and mutual covenants
herein set forth, it is agreed as follows:
1. Non-Disclosure: Receiving Party will not, during the period of review
or thereafter, disclose any confidential or proprietary information of
Disclosing Party to any person, firm, corporation or other entity except
Disclosing Party.
For the purpose of this Agreement, the term "confidential information"
shall mean (1) any and all information, both technical and general, used
in Disclosing Party's business which gives Receiving Party an opportunity
to obtain an advantage over competitors who do not know it or use it, and
(2) information, knowledge, trade secrets, data or know-how belonging to
third parties in Disclosing Party's possession. Any information of
Disclosing Party which is not readily available to the public shall be
considered to be "confidential information". All information identified by
Disclosing Party as "confidential" shall be deemed to be "confidential
information". Examples of confidential information include, but are not
limited to, the following:
a. trade secrets;
b. research and development activities;
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c. books and records, programs, listings, manuals, drawings,
specifications, plans;
d. customer and resellers lists;
e. private processes as that may exist from time to time;
f. information concerning current, future, or proposed products and
designs;
g. business forecasts;
h. procurement requirements and procurement sources;
i. plans and technology relating to business forecasts, procurement
requirements and procurement sources;
j. plans and technology relating to customer lists and files, costs and
pricing information, marketing strategies and sales information;
k. financial data;
l. personnel records;
m. sales and marketing techniques and procedures; and
2. Relinquishment. Upon termination of business between the parties,
Receiving Party shall deliver to Disclosing Party all materials including, but
not limited to, customer files and lists, marketing and business plans
forecasts, written sales programs, cost and pricing information, documents,
models, apparatus, sketches, designs, parts lists which were furnished to
Receiving Party and which are designated in writing to be Disclosing Party's
property, drawings, manuals, letters, notes, notebooks, reports and all other
materials (including all copies of such materials), relating to confidential
information or the business of Disclosing Party which are in the possession or
under the control of Receiving Party.
3. Receiving Party Warranty. The parties warrant that their review of
Disclosing Party information will not violate any obligations to any third party
including but not limited to competitors.
4. Severability of Agreement. Should any part of this Agreement for any
reason be declared invalid, such decision shall not affect the validity of any
remaining portion, which remaining portion shall remain in force and effect as
if this Agreement had been executed with the invalid portion thereof eliminated,
and it is hereby declared the intention of the parties that they would have
executed the remaining portion of this Agreement without including such parts or
portions which may, for any reason, be hereafter declared invalid.
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5. Provision for Amendment of Agreement. The Provisions of this Agreement
may only be waived, altered, amended or repealed, in whole or in part, in
writing and executed by all parties to this Agreement.
6. Equitable Relief. ITMG and RCAG agree that money damages would not be a
sufficient remedy for breach of the confidentiality and other obligations of
this Agreement. Accordingly, in addition to all other remedies that the
Disclosing Party may have, the Disclosing Party shall be entitled to specific
performance and injunctive or other equitable relief as a remedy for any breach
of the confidentiality and other obligations of this Agreement. The parties
agree to waive any requirement for a bond in connection with any injunctive or
other equitable relief.
7. Governing Law. This Agreement shall be construed in accordance with,
and governed by, the laws of the State of Florida.
8. Successors and Assigns. This Agreement shall inure to the benefit of
the successors and assigns of In Touch Media Group, Inc. and The RC&A Group,
Inc.
9. Pronouns. All pronouns and any variations thereof as used in this
Agreement shall be deemed to refer to the masculine, feminine or neuter.
IN WITNESS THEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxx
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Xxxxx Xxxxxxxx Xxxxxx Xxxxxx
Title: CEO, In Touch Media Group, Inc. Title: President, The RC&A Group, Inc.
Date: 23 June 05 Date: 23 JUN 05
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