Exhibit 10.1
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Consulting Agreement for Xxxxxxx X. Xxxxxx
MANAGEMENT AGREEMENT
THIS AGREEMENT made as of the 1st day of January, 2004.
BETWEEN:
VOCALSCAPE. INC., a Delaware corporation incorporated under the laws
of the State of Nevada and having its office at 000-0000 Xxxxx
Xxxxxx, Xxxxxxxxx XX X0X 0X0
(hereinafter referred to as the "Company")
OF THE FIRST PART,
-- and --
Xxxxxxx X. Xxxxxx residing at 405 0000 Xxxx 00xx Xxxxxx,
Xxxxxxxxx XX
(hereinafter referred to as the ("DIRECTOR OF BUSINESS DEVELOPMENT")
OF THE SECOND PART.
WHEREAS the Company carries on a business consisting principally of the
production, sales, marketing, promotion and distribution of software throughout
the United States of America (the "Business");
AND WHEREAS the Company is desirous of retaining the DIRECTOR OF BUSINESS
DEVELOPMENT to provide management services in connection with the Business of
the Company;
AND WHEREAS, the Company desires the benefit of the experience,
supervision and services of the DIRECTOR OF BUSINESS DEVELOPMENT, Vocalscape,
Inc., and desires to employ its staff to manage Vocalscape, Inc., upon the terms
and conditions hereinafter set forth, and the DIRECTOR OF BUSINESS DEVELOPMENT
is willing and able to accept such employment on such terms and conditions
AND WHEREAS the DIRECTOR OF BUSINESS DEVELOPMENT is desirous of providing
such services to the Company, on the terms and subject to the conditions herein
set out;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
respective covenants and agreements of the parties contained herein, the sum of
one dollar paid by each party hereto to each of the other parties hereto and
other good and valuable consideration (the receipt and sufficiency of which is
hereby acknowledged by each of the parties hereto) it is agreed as follows:
ARTICLE ONE -- MANAGEMENT SERVICES
1.1 Retainer. The DIRECTOR OF BUSINESS DEVELOPMENT shall manage the Business of
Vocalscape, Inc. and its concepts of providing voice over internet services to
ethnic, cultural and selected niche groups, subject always to the general
control, supervision and direction of the Board of Directors of the Company.
1.2 Term of Agreement. The employment of the DIRECTOR OF BUSINESS DEVELOPMENT
pursuant to this Agreement shall commence on the date hereof and shall continue
for a period of two years unless sooner terminated as provided for herein.
Provided that the DIRECTOR OF BUSINESS DEVELOPMENT is performing its duties of
supervision and management of Vocalscape, Inc. and the Company is generating
revenues in excess of expenses, the business is growing and there is public
interest in the Company as so managed, the Parties agree to work to continue the
relationship after the first annual contract period has expired.
1.3 Provision of Services. The DIRECTOR OF BUSINESS DEVELOPMENT shall, as
DIRECTOR OF BUSINESS DEVELOPMENT of Vocalscape, Inc. (hereinafter "VS") provide
the Company with the services required to operate in the internet and voice
telephonic industry, supervise all daily operations of the business, including
the collection of all monthly revenues, the rendering of an accounting for same
and the keeping of books and records, and shall attend to payment from funds
supplied by Company as the same come due as provided for herein.
The DIRECTOR OF BUSINESS DEVELOPMENT will diligently supervise all operations of
the Company including, but not limited to, client contact, contract
negotiations, origination and supervision of all accounting and other related
operations of the business, it being understood that all accounting records will
be open to the inspection of the agents, directors, auditors, and counsel of the
Company during regular business hours, and that monthly statements showing the
details of such operations shall be furnished to the Company upon request.
The DIRECTOR OF BUSINESS DEVELOPMENT will attempt to obtain new business
opportunities and accounts for the Company and will undertake supervision of any
active sales promotion and public relations programs. The DIRECTOR OF BUSINESS
DEVELOPMENT will provide officers who shall be responsible to VS, develop a
business plan of operation, licensees, media and other parties necessary to
promote its business and corporate image. DIRECTOR OF BUSINESS DEVELOPMENT will
review employee sales performance, contracts, wages compensation and incentive
programs for licensees, brokers and in-house salespersons, and develop
additional sales and market areas within sound financial parameters. Direct
promotional costs for public relations shall be borne by Company, solely out of
revenues generated by Company.
The Executive officers of the DIRECTOR OF BUSINESS DEVELOPMENT will coordinate
and maintain workflow, reporting, chain of command, accountability and authority
of department heads.
The DIRECTOR OF BUSINESS DEVELOPMENT will coordinate with industry compatible
entities, administrative and in-house staff to promote the continuation of sound
business and marketing management as necessary to maintain the business and
affairs of the Company.
The DIRECTOR OF BUSINESS DEVELOPMENT will promptly comply with SEC rules and
regulations and will cooperate with Company auditors and attorneys for all
reporting and filing purposes.
1.4 Board Policy and Instructions. The DIRECTOR OF BUSINESS DEVELOPMENT
covenants with the Company that it will act in accordance with any policy of and
carry out all reasonable instructions of the board of directors of the Company.
The DIRECTOR OF BUSINESS DEVELOPMENT acknowledges that such policies and
instructions may limit, restrict or remove any power or discretion which might
otherwise have been exercised by the DIRECTOR OF BUSINESS DEVELOPMENT.
1.5 Remuneration. In consideration for the services rendered by the DIRECTOR OF
BUSINESS DEVELOPMENT hereunder, the Company shall pay to the DIRECTOR OF
BUSINESS DEVELOPMENT such salary and other benefits as shall be determined by
the Board of Directors, in its sole discretion, after taking into consideration
the financial condition of the Company and its prospects. In addition, the
Company shall issue to the DIRECTOR OF BUSINESS DEVELOPMENT 100,000 shares of
common stock of the Company, which shares shall be registered with the
Securities and Exchange Commission on Form S-8.
1.6 Expenses. The Company shall, provided it has the funds, pay all travel,
lodging and other out-of-pocket expenses incurred in the normal course of
business by the DIRECTOR OF BUSINESS DEVELOPMENT and its two (2) key personnel
commensurate with their positions and responsibilities. If funds are not
available for such expenses, then shares of common stock shall be distributed to
such key personnel on the basis of .005 cents per share. At the end of each
month, upon submission of an itemized statement of expenses, the Company shall
also pay all of such submitted expenses of the DIRECTOR OF BUSINESS DEVELOPMENT
and its two (2) key personnel and of any other consultant or individual of the
DIRECTOR OF BUSINESS DEVELOPMENT approved by the Chairman of the Board or by
majority vote of the Board of Directors.
ARTICLE TWO -- COVENANTS
2.1 No Delegation of Services. The DIRECTOR OF BUSINESS DEVELOPMENT covenants
and agrees with the Company that it shall not delegate performance of the
Services to anyone without the prior written consent of the Company.
ARTICLE THREE -- CONFIDENTIALITY AND NON-COMPETITION
3.1 Confidential Information. The DIRECTOR OF BUSINESS DEVELOPMENT covenants and
agrees that it shall not disclose to anyone any confidential information with
respect to the business or affairs of the Company except as may be necessary or
desirable to further the business interests of the Company. This obligation
shall survive the expiry or termination of this Agreement.
3.2 Return of Property. Upon expiry or termination of this Agreement the
DIRECTOR OF BUSINESS DEVELOPMENT shall return to the Company any property,
documentation, or confidential information which is the property of the Company.
3.3 Promotion of Company's Interests. The DIRECTOR OF BUSINESS DEVELOPMENT will
faithfully serve and use its best efforts to promote the interests of the
Company, shall not use any information he may acquire with respect to the
business and affairs of the Company or its affiliates for his own purposes or
for any purposes other than those of the Company or its affiliates.
ARTICLE FOUR -- TERMINATION
4.1 Termination of Agreement. The Company may terminate this Agreement by giving
the DIRECTOR OF BUSINESS DEVELOPMENT three hundred and sixty (360) days written
notice or in lieu of such written notice by paying the DIRECTOR OF BUSINESS
DEVELOPMENT the minimum management fee as determined pursuant to Section 1.5
hereof. The DIRECTOR OF BUSINESS DEVELOPMENT may terminate this Agreement at any
time by giving the Company ninety (90) days written notice. The obligations of
the DIRECTOR OF BUSINESS DEVELOPMENT under this Agreement shall terminate upon
the earlier of the DIRECTOR OF BUSINESS DEVELOPMENT ceasing to be retained by
the Company or the termination of this Agreement by the DIRECTOR OF BUSINESS
DEVELOPMENT or the Company
4.2 Termination for Cause. The Company may terminate this Agreement if the
DIRECTOR OF BUSINESS DEVELOPMENT violates any one or more of the terms of this
Agreement and such violation(s) results in materially inefficient management or
any materially adverse affect on the Company. If the Company deems that the
DIRECTOR OF BUSINESS DEVELOPMENT has violated the terms of this Agreement, it
shall give written notice thereof describing the default and granting thirty
(30) days in which to cure the default. If the DIRECTOR OF BUSINESS DEVELOPMENT
fails or refuses to cure the default within thirty (30) days of the receipt of
such notice, the Company may terminate this Agreement at the end of the thirty
(30) day period. Further, any material violation of the Federal Securities Laws
Rules or Regulation or any wilful or intentional malicious acts that are
materially harmful to the Company shall be cause for termination without further
compensation. In the event that the Company fails to pay the remuneration set
out herein or violates any one or more of the terms of this Agreement which
materially prejudices the DIRECTOR OF BUSINESS DEVELOPMENTs ability to carry out
its management duties and the Company agrees that the DIRECTOR OF BUSINESS
DEVELOPMENT may terminate this Agreement for cause and further agrees to pay the
DIRECTOR OF BUSINESS DEVELOPMENT, as liquidated damages, a management fee
equivalent to three hundred and sixty (360) days of management as determined
pursuant to Section 1.5 hereof.
ARTICLE FIVE -- CAPACITY
5.1 Capacity of DIRECTOR OF BUSINESS DEVELOPMENT. It is acknowledged by the
parties hereto that the DIRECTOR OF BUSINESS DEVELOPMENT is being retained by
the Company in the capacity of independent contractor and not as an employee of
the Company. The DIRECTOR OF BUSINESS DEVELOPMENT and the Company acknowledge
and agree that this Agreement does not create a partnership or joint venture
between them.
ARTICLE SIX -- GENERAL CONTRACT PROVISIONS
6.1 Notices. All notices, requests, demands or other communications
(collectively, "Notices") by the terms hereof required or permitted to be given
by one party to any other party, or to any other person shall be given in
writing by personal delivery or by registered mail, postage prepaid, or by
facsimile transmission to such other party at the addresses set out in the
preamble to this Agreement or at such other address as may be given by such
person to the other parties hereto in writing from time to time.
All such Notices shall be deemed to have been received when delivered or
transmitted, or, if mailed, 48 hours after 12:01 a.m. on the day following the
day of the mailing thereof. If any Notice shall have been mailed and if regular
mail service shall be interrupted by strikes or other irregularities, such
Notice shall be deemed to have been received 48 hours after 12:01 a.m. on the
day following the resumption of normal mail service, provided that during the
period that regular mail service shall be interrupted all Notices shall be given
by personal delivery or by facsimile transmission.
6.2 Additional Conditions. The parties shall sign such further and other
documents, cause such meetings to be held, resolutions passed and by-laws
enacted, exercise their vote and influence, do and perform and cause to be done
and performed such further and other acts and things as may be necessary or
desirable in order to give full effect to this Agreement and every part thereof.
6.3 Counterparts. This Agreement may be executed in several counterparts, each
of which so executed shall be deemed to be an original and such counterparts
together shall be but one and the same instrument.
6.4 Entire Agreement. This Agreement constitutes the entire Agreement between
the parties with respect to all of the matters herein and its execution has not
been induced by, nor do any of the parties rely upon or regard as material, any
representations or writings whatever not incorporated herein and made a part
hereof and may not be amended or modified in any respect except by written
instrument signed by the parties hereto. Any schedules referred to herein are
incorporated herein by reference and form part of the Agreement.
6.5 Enurement. This Agreement shall enure to the benefit of and be binding upon
the parties and their respective legal personal representatives, heirs,
executors, administrators or successors.
6.6 Currency. Unless otherwise provided for herein, all monetary amounts
referred to herein shall refer to the lawful money of the United States of
America.
6.7 Headings for Convenience Only. The division of this Agreement into articles
and sections is for convenience of reference only and shall not affect the
interpretation or construction of this Agreement.
6.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware and the federal laws of the
United States of America applicable therein and each of the parties hereto
agrees irrevocably to conform to the non-exclusive jurisdiction of the Courts of
such State.
6.11 Gender. In this Agreement, words importing the singular number shall
include the plural and vice versa, and words importing the use of any gender
shall include the masculine, feminine and neuter genders and the word "person"
shall include an individual, a trust, a partnership, a body corporate, an
association or other incorporated or unincorporated organization or entity.
6.12 Calculation of Time. When calculating the period of time within which or
following which any act is to be done or step taken pursuant to this Agreement,
the date which is the reference date in calculating such period shall be
excluded. If the last day of such period is not a Business Day, then the time
period in question shall end on the first business day following such
non-business day.
6.13 Legislation References. Any references in this Agreement to any law,
by-law, rule, regulation, order or act of any government, governmental body or
other regulatory body shall be construed as a reference thereto as amended or
re-enacted from time to time or as a reference to any successor thereto.
6.14 Severability. If any Article, Section or any portion of any Section of this
Agreement is determined to be unenforceable or invalid for any reason whatsoever
that unenforceability or invalidity shall not affect the enforceability or
validity of the remaining portions of this Agreement and such unenforceable or
invalid Article, Section or portion thereof shall be severed from the remainder
of this Agreement.
IN WITNESS WHEREOF the parties have duly executed this Management
Agreement this 1st day of January, 2004:
Vocalscape. Inc. (The Company)
By:/s/ Xxxxxxx X. Xxxxxx
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Authorized Signatory
Xxxxxx X. Xxxx (The DIRECTOR OF BUSINESS DEVELOPMENT)
By:/s/ Xxxxxx X. Xxxx
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Authorized Signatory
