Exhibit 10.5
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Consulting Agreement for Xxx XxXxxxxx
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 --
Xxx XxXxxxxx residing at 0000 Xxxxx Xxxxx, Xxxxxxxx Xxxxxxx Xxxxxxxx
X0X 0X0
(hereinafter referred to as the ("PRESIDENT")
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 PRESIDENT 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 PRESIDENT, Vocalscape, Inc., and desires to
employ its staff to manage Vocalscape, Inc., upon the terms and conditions
hereinafter set forth, and the PRESIDENT is willing and able to accept such
employment on such terms and conditions
AND WHEREAS the PRESIDENT 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 PRESIDENT 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 PRESIDENT 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
PRESIDENT 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 PRESIDENT shall, as PRESIDENT 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 PRESIDENT 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 PRESIDENT 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 PRESIDENT 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. PRESIDENT
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 PRESIDENT will coordinate and maintain workflow,
reporting, chain of command, accountability and authority of department heads.
The PRESIDENT 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
PRESIDENT 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 PRESIDENT 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 PRESIDENT
acknowledges that such policies and instructions may limit, restrict or remove
any power or discretion which might otherwise have been exercised by the
PRESIDENT.
1.5 Remuneration. In consideration for the services rendered by the PRESIDENT
hereunder, the Company shall pay to the PRESIDENT 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 PRESIDENT 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 PRESIDENT 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 PRESIDENT and its two (2) key personnel and of any other
consultant or individual of the PRESIDENT 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 PRESIDENT 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 PRESIDENT 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
PRESIDENT 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 PRESIDENT 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 PRESIDENT three hundred and sixty (360) days written notice or in lieu of
such written notice by paying the PRESIDENT the minimum management fee as
determined pursuant to Section 1.5 hereof. The PRESIDENT may terminate this
Agreement at any time by giving the Company ninety (90) days written notice. The
obligations of the PRESIDENT under this Agreement shall terminate upon the
earlier of the PRESIDENT ceasing to be retained by the Company or the
termination of this Agreement by the PRESIDENT or the Company
4.2 Termination for Cause. The Company may terminate this Agreement if the
PRESIDENT 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 PRESIDENT 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 PRESIDENT 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 PRESIDENTs
ability to carry out its management duties and the Company agrees that the
PRESIDENT may terminate this Agreement for cause and further agrees to pay the
PRESIDENT, 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 PRESIDENT. It is acknowledged by the parties hereto that the
PRESIDENT is being retained by the Company in the capacity of independent
contractor and not as an employee of the Company. The PRESIDENT 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/ Xxxxxx X. Xxxx
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Authorized Signatory
Xxxxxx X. Xxxx (CEO)
By:/s/ Xxx XxXxxxxx
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Authorized Signatory
