EXHIBIT 10.2
MANAGEMENT AGREEMENT
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THIS MANAGEMENT AGREEMENT is dated for reference the 4th day of August, 2003.
BETWEEN:
BENTLEY COMMUNICATIONS CORP.,
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of 00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
(hereinafter referred to as the "COMPANY")
OF THE FIRST PART
AND:
XXX XXXXX
of #0 Xxxxxxxx Xxxxxx, Xxxxx 0X
Xxxxxx, XX 00000
(hereinafter referred to as the "MANAGER")
OF THE SECOND PART
WHEREAS:
A. The Company is a corporation incorporated under the laws of the State
of Florida with its executive offices and a business office in Los
Angeles, California;
B. The Company's business consists of ecommerce and alternative and
conventional forms of financial transactions for commerce, particularly
ecommerce, and the development of proprietary software that will enable
barter exchanges, and the companies that barter through them, access
around the clock to a user-friendly, online trade exchange that will
provide for faster trading, increased sales volume, access to new
nationwide markets and an entire range of management tools;
D. The Company wishes to retain the Manager to provide management services
to a wholly-owned subsidiary of the Company (the "SUBSIDIARY"), to be
determined by the Company, upon the terms and conditions hereinafter
set out;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and
all other good and valuable consideration and the mutual covenants herein
contained, the parties hereto hereby covenant and agree as follows:
INTERPRETATION
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1. For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) "THIS AGREEMENT" means this Management Agreement as from time
to time supplemented or amended by one or more agreements
entered into pursuant to the applicable provisions hereof;
(b) the words "HEREIN", "HEREOF" and "HEREUNDER" and other words
of similar import refer to this Agreement as a whole and not
to any particular paragraph, subparagraph or other
subdivision;
(c) the headings are for convenience only and do not form a part
of this Agreement nor are they intended to interpret, define
or limit the scope, extent or intent of this Agreement or any
portion hereof;
(d) a reference to a statute includes all regulations made
pursuant thereto, all amendments to such statute or
regulations enforced from time to time and any statute or
regulation which supplements or supersede such statute or
regulation;
(e) the recitals and all schedules attached hereto are
specifically made a part of this Agreement.
2. This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
3. Unless otherwise indicated, all dollar amounts referred to in this
Agreement are in currency of the United States of America.
4. The terms, conditions, covenants, agreements, obligations and provisos
contained in this Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and upon their respective heirs,
executors, administrators, personal representatives, successors and, if
permitted, assigns, as the case may be.
5. Time shall be of the essence hereof.
6. This Agreement may be executed in several parts in the same form and
the several parts executed shall together constitute one agreement.
7. There are no representations, warranties, conditions, terms or
collateral contracts affecting the engagement of the Manager
contemplated in this Agreement except as set out in this Agreement.
8. If any provision or part of any provision of this Agreement is void for
any reason, it shall be severed from the Agreement without affecting
the validity of the balance of the Agreement.
9. The Manager acknowledges ample opportunity and advice to take
independent legal advice in connection with the execution of this
Agreement.
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ENGAGEMENT AND TERMS OF RETENTION OF MANAGER
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10. The Company hereby agrees to retain the Manager to provide management
services to the Subsidiary during the Term of this Agreement (as
hereinafter defined) upon and subject to the terms and conditions
hereinafter set out and the Manager hereby accepts such retention upon
such terms and conditions.
11. The "TERM OF THIS AGREEMENT" as used herein shall mean that period
beginning on the closing date of the Company's acquisition of the
assets from Xxxxx Barter System, Inc. pursuant to the Asset Purchase
Agreement dated August 4th, 2003 and continuing for a period of twelve
months from such closing date or until this Agreement is terminated in
accordance with Sections 22 and 23 hereof.
12. The Manager shall have the following duties and obligations during the
term hereof, namely:
(a) to oversee the integration of the Xxxxx Barter System, Inc. to
the Company and the Subsidiary;
(b) to assist the Subsidiary in increasing volume of trades and
expansion of the member base.;
(c) to oversee the Subsidiary's business strategy and direction
including preparation of business plans to define goals and
time lines to achieve such;
(d) to establish technology, marketing and sales goals;
(f) to assist in staffing and personnel hiring and deployment; and
(h) to oversee the formulation of policies, procedures and
programs and their implementation including but not limited to
weekly activity reports.
13. Subject to any specific provisions of this Agreement, the Manager, in
carrying out his duties and obligations hereunder, shall at all times
be subject to the direction and control of the Board of Directors of
the Company and the Subsidiary and shall perform his duties hereunder
in accordance with the instructions and directions as from time to time
communicated to him by the Board of Directors, and shall make all
reports to the Board of Directors except where otherwise specifically
provided herein.
14. The Manager shall at all times during the Term of this Agreement,
except during periods of vacation or when he is disabled by illness or
incapacity, faithfully and diligently perform the Manager's duties and
promote and advance the interests of the Company and the Subsidiary on
a full-time basis.
15. Nothing in this Agreement is to be construed as creating a partnership
or a principal and agent relationship between the Company and/or the
Subsidiary and the Manager.
16. The Manager shall perform the services referred to herein in a
confidential, efficient, prompt, economical, skilful and careful
manner, in accordance with the best modern methods, standards and
practices currently prevailing in the businesses similar to that of the
Company and the Subsidiary. The Manager shall obey all applicable laws,
regulations, rules and standards imposed by the governmental
authorities.
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17. All documents, data and reports and other information generated by the
Manager in performing the services herein shall at all times be and
remain the property of the Company and/or the Subsidiary and all such
material is confidential and proprietary to the Company and/or the
Subsidiary.
18. The Manager acknowledges that during the course of providing services
to the Subsidiary, the Manager will have access to proprietary
information of the Company and/or the Subsidiary including, but not
limited to, information relating to financial costs and sales data;
supply sources and contracts; business opportunities for new and
developing business; products, procedures, systems and techniques
relating to the operation of the Company's and/or Subsidiary's
business. The Manager acknowledges that all such proprietary
information is a valuable, special and unique asset of the Company
and/or the Subsidiary. The Manager shall not disclose such proprietary
information to others, other than in the course of the Manager's
responsibilities to the Subsidiary, and shall not use such proprietary
information for his own personal gain. Furthermore, the Manager
specifically agrees that this provision continues during and after the
termination or expiration of this Agreement. In the event of a breach
or threatened breach by the Manager of the provisions of this
paragraph, the Company and/or the Subsidiary shall be entitled to an
injunction restraining the Manager from disclosing, in whole or in
part, such proprietary information or from rendering any services to
any person, firm, corporation, association or other entity to whom such
proprietary information, in whole or in part, has been disclosed or is
threatened to be disclosed. Nothing herein shall be construed the
prohibiting of the Company and/or the Subsidiary from pursuing any
other remedies available to it for such breach or threatened breach,
including the recovery of damages from the Manager. Notwithstanding the
foregoing, the Manager shall have no obligation with respect to matters
which become publicly known other than as a result of the Manager's
breach of his obligations hereunder. The Manager may disclose such
matters to the extent required by applicable laws, governmental
regulations or judicial process.
19. The Manager warrants to the Company and/or the Subsidiary that the
performance of the services by the Manager under this Agreement does
not constitute a conflict with any party to whom the Manager has
provided services prior to the effective date of this Agreement. During
the term of this Agreement and after the termination of this Agreement,
the Manager shall not enter into any business relationship, which gives
rise to a conflict of interest between the Company and/or the
Subsidiary and any other party.
REMUNERATION
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20. During the term of this Agreement, the Subsidiary shall pay the Manager
an annual salary of One Hundred and Twenty Thousand ($120,000) Dollars.
The management fee shall be payable at the rate of Ten Thousand
($10,000) Dollars per month, payable in cash or cash equivalent as
agreed to both by the Company and the Manager. The Subsidiary shall as
well reimburse the Manager for all pre-approved and reasonably incurred
out-of-pocket expenses relating to his duties hereunder verified by
receipts.
TERMINATION
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22. The Manager may withdraw herefrom upon thirty (30) days written notice
to the Board of Directors of the Company and/or the Subsidiary
(collectively the "BOARD OF DIRECTORS").
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23. If the Board of Directors, acting reasonably, determines that the
Manager has failed to perform his duties in accordance with paragraph
12 hereof, the Board of Directors shall deliver notice to the Manager
setting out the deficiencies and corrective measures required. The
Manager shall then have fourteen (14) days from receipt of this notice
to remedy the deficiencies, failing which the Board of Directors may
deliver to the Manager written notice terminating this Agreement. The
effective date of the termination of this Agreement shall be ten (10)
days after the Manager receives this last mentioned notice.
24. Upon termination of this Agreement, the Manager shall forthwith deliver
to the Subsidiary all files, reports and other documents belonging to
the Company and/or the Subsidiary or produced by the Manager in the
course of his duties and advising the Subsidiary on the matters set out
above and the Subsidiary agrees to pay to the Manager the fees earned
and the reimbursable expenses incurred up to the date of termination.
25. The Company and/or the Subsidiary reserves the right to terminate this
Agreement with notice for cause, including but not limited to the
death or incapacitating illness of the Manager or the Manager's gross
incompetence or dishonesty.
NOTICES
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26. All notices, requests, reports, demands, authorizations or directions
from one Party to this Agreement to another shall be in writing and
delivered as follows:
If to the Company and/or the Subsidiary:
BENTLEY COMMUNICATIONS CORP.
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxx
FAX: (000) 000-0000
If to the Manager:
XXX XXXXX
#0 Xxxxxxxx Xxxxxx, Xxxxx 0X
Xxxxxx, XX 00000
FAX: (000) 000-0000
or to such other address as may be specified by either Party to the other in a
notice given in the manner herein provided.
27. Any notices under this Agreement shall be sufficiently given by:
(a) personal, couriered, or overnight delivery;
(b) facsimile transmission;
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(c) registered letter, postage prepaid and mailed in a government
post office, addressed to the party, and the date of receipt
of any notice shall be deemed conclusively to be five (5) days
after the mailing, except in the event of a threatened or
actual postal disruption.
ENTIRE AGREEMENT
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28. This Agreement constitutes the entire Agreement between the Company and
the Manager and there are no representations or warranties, expressed
or implied, statutory or otherwise and no agreements collateral hereto
other than expressly set forth or referred to herein.
ASSIGNMENT
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29. This Agreement is a personal service agreement and may not be assigned
by either Party without the prior written consent of the Board of
Directors.
30. The Manager shall not sub-contract all or any portion of the management
services itemized in paragraph 12 hereof without the prior written
consent of the Board of Directors.
ARBITRATION
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31. Arbitration. Any controversy or claim arising out of or relating to
this agreement, or the breach thereof, shall be settled by arbitration
administered by the American Arbitration Association in accordance with
its Commercial, or other Arbitration Rules, including the RULES FOR
EMERGENCY MEASURES OF PROTECTION and judgment on the award rendered by
the arbitrator(s) may be entered in any court having jurisdiction
thereof. The Parties to this Agreement expressly agree that any
arbitration arising from or out of this Agreement shall be conducted in
the State of New Hampshire. Further, the Parties expressly waive their
right, if any, to a trial by jury of such claims or controversies and
agree that the award of the arbitrator shall be final and binding upon
them as though rendered by a court of law.
32. Construction & Applicable Law. This Agreement will be governed,
construed and enforced in accordance with and by the laws of the State
of New Hampshire applicable to agreements made and to be performed in
such jurisdiction, without reference to conflicts of law principles.
The Parties irrevocably consent that any legal claim or proceeding
against them under, arising out of or in any manner relating to this
Agreement, or any other agreement, document or instrument arising out
of or executed in connection with this Agreement, shall be submitted to
arbitration by the American Arbitration Association, pursuant to 32,
hereinabove, in the State of New Hampshire and the Parties each
irrevocably consent to venue in New Hampshire and to the personal
jurisdiction thereof. The Parties hereby expressly and irrevocably
waive any claim or defense in any action or proceeding based on any
alleged lack of personal jurisdiction, improper venue or forum non
conveniens or any similar basis.
IN WITNESS WHEREOF the parties hereto have executed this Agreement to be
effective as of the day and year first above written.
BENTLEY COMMUNICATIONS CORP.
/s/ Xxxxxx X. Xxx
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XXXXXX X. XXX,
PRESIDENT
/s/ Xxx Xxxxx
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XXX XXXXX
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