MANAGEMENT AGREEMENT
EXHIBIT
10.5
This
Management Agreement is made as of the 4th day of March, 2009, by and among
Eastern Point Communications, LLC, a Massachusetts limited liability company
(“Manager”), ubroadcast, inc., a Delaware corporation (“UBCI”), and Britespot,
Inc., a Nevada corporation (the “Company”) wholly owned by UBCI.
WHEREAS,
the Company has determined to establish a new division, Britespot
Telecommunications Sales Division (such new business division being referred to
herein as the “Business”), that is to become a wholesaler of minutes to
telecommunications companies, particularly within the VoIP industry segment;
and
WHEREAS,
the Company has determined that it would be in its best interest to hire
Manager, in order to assure itself of Manager’s business referrals as it seeks
to develop the Business; and
WHEREAS,
Manager has extensive experience in the telecommunications industry and is
capable of providing management services on behalf of the Company as it seeks to
development the Business; and
WHEREAS,
Manager agrees to be engaged and retained by the Company upon the terms and
conditions set forth herein; and
NOW
THEREFORE, in consideration of the mutual covenants herein contained, it is
agreed:
Article I —
Establishment of Agency and Management Responsibility
1.1 Exclusive
Agency. The Company hereby appoints Manager and Manager hereby accepts
appointment on the terms and conditions hereinafter provided as sole and
exclusive management agent of the Company with respect to the Business. It is
agreed that this constitutes an agency coupled with an interest.
Article II —
Services to Be Performed by Manager
2.1 Expense
of the Business. Everything done by Manager under the provisions of this
Agreement shall be done as the agent of the Company, and all obligations or
expenses incurred hereunder shall be for the account of, on behalf of and at the
expense of the Business. All payments to be made by Manager hereunder shall be
reimbursed from funds deposited in an account established pursuant to Section
3.2 hereof. Manager shall not be obligated to make any advance to or for the
account of the Business or to pay any sums, except out of funds held in an
account maintained under Section 3.2, nor shall Manager be obligated to incur
any liability or obligation for the account of the Business without assurance
that the necessary funds for the discharge thereof will be provided.
Nevertheless, Manager shall be reimbursed for expenses paid by it in the course
of performance of its duties hereunder upon invoice.
2.2 Business
Management. Manager will supervise and direct the establishment and operation of
the Business, in keeping with the objectives of the Company. In performing
hereunder, Manager agrees that it shall begin to obtain purchase and sale
contracts for wholesale telecommunications minutes for the Business immediately
upon the mutual execution of this Agreement and shall use its commercially
reasonable best efforts to obtain such purchase and sale contracts throughout
the term, including any renewal term, of this Agreement. Manager hereby accepts
such engagement and agrees to render such services throughout the term of this
Agreement. Manager agrees that it shall be responsible for all expenses incurred
in its performance hereunder. It is further agreed that Manager shall have no
authority to bind the Company or the Business to any contract or obligation or
to transact any business in the Company’s for the Business’ name or on behalf of
the Company or the Business, in any manner, other than pursuant to this
Agreement. The parties intend that Manager shall perform its services required
hereunder as an independent contractor.
2.3 Insurance.
Manager shall cause to be placed and kept in force all forms of insurance
required by law or needed to protect adequately the Company and Manager. All
insurance coverage shall be placed with such companies, in such amounts, and
with such beneficial interest appearing therein, as shall be reasonable and
prudent and within the discretion of Manager. Manager shall promptly investigate
and make a full and timely written report to the insurance company as to all
accidents and claims for damages relating to the Company. All such reports shall
be timely filed with the insurance company as required under the terms of the
insurance policy involved. Manager is authorized to settle any and all claims
against insurance companies arising out of any policies, including the execution
of proofs of loss, the adjustment of losses, signing of receipts and the
collection of money.
2.4 Collection
of Monies. Manager shall collect any and all monies due and owing the Business
from its operations.
2.5 Manager
Disbursements. Manager shall, from the funds received by the Business, cause to
be disbursed regularly and punctually (i) Manager’s compensation hereunder; (ii)
the amounts reimbursable to Manager under Section 2.1; (iii) the amount of any
and all taxes and other impositions levied by appropriate authorities; and (iv)
amounts otherwise due and payable as operating expenses of the Business
authorized to be incurred under the terms of this Agreement.
2.6 Records;
Reporting.
(a) Records.
All statements, receipts, invoices, checks, contracts, worksheets, financial
statements, books and records, and all other instruments and documents relating
to or arising from the operation or management of the Business shall be
maintained by Company, and the Company and Manager shall have the right to
inspect and to copy all such matters, at such party’s expense, at all reasonable
times, and from time to time, during the term of this Agreement and for a
reasonable time thereafter not to exceed three (3) years. Upon the termination
of this Agreement, all of such books, records and other information shall belong
to the Company; provided, however, that the Manager or its representatives shall
have the right to inspect such books, records and other information and to make
copies thereof during the three (3) year period referred to in the preceding
sentence at the Company’s place of business upon reasonable advance notice to
the Company.
(b) Monthly
Reports. On or before the 5th day following the close of each calendar month
during the term of this Agreement, Manager shall render to the Company financial
statements, prepared in accordance with generally accepted accounting
principles, for the Business for the preceding calendar month.
(c) Annual
Report. Within 20 days after the end of each calendar year of operations of the
Company, Manager shall deliver to the Company financial statements, prepared in
accordance with generally accepted accounting principles, for the Business for
the preceding calendar year.
(d) Compliance
with Legal Requirements. Manager shall take such action as may be necessary to
comply with any and all orders or requirements affecting the Company and the
Business by any foreign, federal, state, county or municipal authority having
jurisdiction thereover.
Article III —
Relationship of Manager to the Company
3.1 Manager’s
Compensation. Manager shall receive compensation hereunder, as
follows:
(a) Cash
Management Fee. Manager shall be paid as and for a management fee the sum of
$25,000 during the initial term, and the sum of $25,000 during any renewal term
hereof, which management fee shall be payable in arrears; provided, however,
that, Manager’s management fee hereunder shall be paid only from funds of the
Company that constitute “net profit” of the Business. For purposes hereof, the
term “net profit” shall be determined in accordance with generally accepted
accounting principles. To the extent that “net profits” are inadequate to fund
Manager’s management fee, such management fee shall be deferred and accrued, to
be paid at such time as “net profits” provide sufficient amounts to pay
Manager’s management fee.
(b) Stock
Management Fees. As further consideration for Manager’s executing this
Agreement, UBCI shall issue to Manager, upon the mutual execution of this
Agreement, 250,000 shares of UBCI’s $.001 par value common stock, which shares
shall be valued at the closing price of the UBCI’s common stock, as reported by
the primary trading market of the UBCI’s common stock, on the date of such
mutual execution.
In
addition, on the first day of each renewal term hereof, UBCI shall issue to
Manager a number of shares of the UBCI’s common stock that shall be determined
by the following formula:
On the first day of each
renewal term hereof, UBCI shall determine (1) the gross revenues of the Business
for the immediately preceding 30-day period (the “Business Revenues”) and (2)
the average closing price of the UBCI’s common stock, as reported by the primary
trading market for the UBCI’s common stock, for the thirty trading days
immediately preceding the first day of the applicable renewal term (the
“Applicable Stock Price”). Then, the Business Revenues shall be multiplied by
one and one-half percent (1.5%), which product is referred to as the “Manager
Amount”. Next, the Manager Amount shall be divided by the Applicable Stock
Price, the result of which shall be the number of shares due Manager. By way of
example only, and assuming Business Revenues of $2,000,000 and an Applicable
Stock Price of $.10 per share, the number of shares due to Manager would be
300,000 shares [$2,000,000 multiplied by 1.5% equals $30,000; $30,000 divided by
$.10 equals 300,000 shares].
3.2 Separation
of Funds. Manager shall establish, in the name of the Company, a bank account in
a federally insured bank. Manager shall deposit all receipts from the Business
in such bank account. Funds may be withdrawn from such bank account on the
signature of Manager or a representative of the Company.
3.3 Term.
The initial term of this Agreement shall commence on the date of mutual
execution of this Agreement and shall continue for a period of 30 days. This
Agreement shall renew for additional thirty-day periods, provided neither party
hereto submits a written notice of termination within 30 days prior to the
termination of the initial term or any renewal hereof.
3.4 No
Assignment by Manager. Without the prior written consent of the Company and
UBCI, Manager shall not have the right to assign, transfer or convey any of its
rights, title or interest hereunder.
3.5 Notices.
All notices, demands, consents, approvals and requests given by either party to
the other hereunder shall be in writing and shall be sent by registered or
certified mail, postage prepaid, to the parties at the following
addresses:
If
to the Company:
Attention:
Xxxx X. Xxxxxxxxxxx, 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx
00000.
If
to
UBCI: Attention:
Xxxx X. Xxxxxxxxxxx, 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx
00000.
If
to Manager:
Attention:
Xxxxx Xxxxxxxxxx, 00 Xxxxxxxxx Xxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000.
Any
party may at any time change its address by sending written notice to the other
party of the change in the manner hereinabove prescribed. Notices shall be
deemed to be given on the third business day after mailing.
Article IV —
Covenants
4.1 The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada and is qualified to do business therein.
The Company has authority to enter into and perform this Agreement, and has the
requisite power and authority to own its property and to carry on its
business.
4.2 UBCI
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and is qualified to do business therein. UBCI has
authority to enter into and perform this Agreement, and has the requisite power
and authority to own its property and to carry on its business.
4.3 Manager
is a limited liability company duly organized, validly existing and in good
standing under the laws of the State of Massachusetts and is qualified to do
business therein. Manager has all requisite power and authority, governmental
permits, consents, authorizations, registrations, licenses and memberships
necessary to own its property and to carry on its business. Manager understands
and acknowledges that the stock of UBCI to be issued hereunder will not be
registered and will, thus, constitute “restricted securities”, and that Manager
is taking such stock for its own account and not with a view towards
distribution.
Article V —
Miscellaneous
5.1 If
any term or provision of this Agreement or the application thereof to any person
or circumstance shall, to any extent, be invalid or unenforceable, the remainder
of this Agreement, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Agreement
shall be valid and be enforced to the fullest extent permitted by law.
5.2 The
failure of the Company, UBCI or Manager to seek redress for any violation of, or
to insist upon the strict performance of, any term or condition of this
Agreement shall not prevent a subsequent act by the Company, UBCI or Manager,
which would have originally constituted a violation of this Agreement by the
Company, UBCI or Manager, from having all the force and effect of an original
violation. The Company, UBCI or Manager may restrain any breach or threatened
breach by the Company, UBCI or Manager of any term or condition herein
contained, but the mention herein of any particular remedy shall not preclude
the Company, UBCI or Manager from any other remedy one might have against the
other, either at law or in equity. The failure by the Company, UBCI or Manager
to insist upon the strict performance of any one of the terms or conditions of
this Agreement or to exercise any right, remedy or election herein contained or
permitted by law shall not constitute or be construed as a waiver or
relinquishment for the future of such term, condition, right, remedy or
election, but the same shall continue and remain in full force and effect. All
rights and remedies that the Company, UBCI or Manager may have at law, in equity
or otherwise upon breach of any term or condition of this Agreement, shall be
distinct, separate and cumulative rights and remedies and no one of them,
whether exercised by the Company, UBCI or Manager or not, shall be deemed to be
in exclusion of any other right or remedy of the Company, UBCI or
Manager.
5.3 This
Agreement contains the entire agreement between the parties hereto with respect
to the matters herein contained and any agreement hereafter made shall be
ineffective to effect any change or modification, in whole or in part, unless
such agreement is in writing and signed by the party against whom enforcement of
the change or modification is sought.
5.4 In
the event that the Company, UBCI or Manager shall fail to perform any duty or
fulfill any obligation hereunder, to the material detriment of the other, the
Company, UBCI or Manager, in addition to any rights or remedies available to
them under law, shall have the right (but shall not be obligated) to perform any
such duty or fulfill any such obligation.
5.5 This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware.
5.6 Neither
this Agreement nor any part hereof nor any benefit or obligation, relationship
or other matter alluded to herein shall inure to the benefit of any third party,
to any trustee in bankruptcy, to any assignee for the benefit of creditors, to
any receiver by reason of insolvency, to any other fiduciary or officer
representing a bankrupt or insolvent estate of either party, or to the creditors
or claimants of such an estate. Without limiting the generality of the foregoing
sentence, it is specifically understood and agreed that insolvency or bankruptcy
of either the Company or Manager shall at the option of the other, void all
rights of such insolvent or bankrupt party hereunder (or so many of such rights
as the other party shall elect to void).
5.7 Unless
the context clearly requires otherwise, the singular number herein shall include
the plural, the plural number shall include the singular, and any gender shall
include all genders.
IN
WITNESS WHEREOF, the parties hereto have caused this instrument to be duly
executed as of the date first above written.
By:
/s/ XXXX X.
XXXXXXXXXXX By:
/s/ XXXX X. XXXXXXXXXXX
Xxxx
X.
Xxxxxxxxxxx Xxxx
X. Xxxxxxxxxxx
President President
EASTERN
POINT COMMUNICATIONS, LLC
By:
/s/ XXXX XXXXXXXXXX
Xxxxx
Xxxxxxxxxx
Manager
