Exhibit 10.6
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Consulting Agreement for Xxxx 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 --
Xxxx Xxxxxx residing at 0000 Xxxx 00xx Xxxxxx, Xxxxxxxxx XX X0X 0X0
(hereinafter referred to as the ("VP, SALES AND MARKETING")
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 VP, SALES AND
MARKETING 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 VP, SALES AND MARKETING, Vocalscape, Inc., and
desires to employ its staff to manage Vocalscape, Inc., upon the terms and
conditions hereinafter set forth, and the VP, SALES AND MARKETING is willing and
able to accept such employment on such terms and conditions
AND WHEREAS the VP, SALES AND MARKETING 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 VP, SALES AND MARKETING 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 VP, SALES AND MARKETING 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
VP, SALES AND MARKETING 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 VP, SALES AND MARKETING shall, as VP, SALES AND
MARKETING 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 VP, SALES AND MARKETING 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 VP, SALES AND MARKETING 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 VP, SALES AND MARKETING 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. VP, SALES AND MARKETING 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 VP, SALES AND MARKETING will coordinate and
maintain workflow, reporting, chain of command, accountability and authority of
department heads.
The VP, SALES AND MARKETING 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 VP, SALES AND MARKETING 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 VP, SALES AND MARKETING 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 VP, SALES
AND MARKETING acknowledges that such policies and instructions may limit,
restrict or remove any power or discretion which might otherwise have been
exercised by the VP, SALES AND MARKETING.
1.5 Remuneration. In consideration for the services rendered by the VP, SALES
AND MARKETING hereunder, the Company shall pay to the VP, SALES AND MARKETING
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
VP, SALES AND MARKETING 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 VP, SALES AND MARKETING 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 VP, SALES AND MARKETING and its
two (2) key personnel and of any other consultant or individual of the VP, SALES
AND MARKETING 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 VP, SALES AND MARKETING 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 VP, SALES AND MARKETING 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 VP,
SALES AND MARKETING 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 VP, SALES AND MARKETING 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 VP, SALES AND MARKETING three hundred and sixty (360) days written notice or
in lieu of such written notice by paying the VP, SALES AND MARKETING the minimum
management fee as determined pursuant to Section 1.5 hereof. The VP, SALES AND
MARKETING may terminate this Agreement at any time by giving the Company ninety
(90) days written notice. The obligations of the VP, SALES AND MARKETING under
this Agreement shall terminate upon the earlier of the VP, SALES AND MARKETING
ceasing to be retained by the Company or the termination of this Agreement by
the VP, SALES AND MARKETING or the Company
4.2 Termination for Cause. The Company may terminate this Agreement if the VP,
SALES AND MARKETING 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 VP, SALES AND
MARKETING 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 VP, SALES AND MARKETING 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 VP, SALES AND
MARKETINGs ability to carry out its management duties and the Company agrees
that the VP, SALES AND MARKETING may terminate this Agreement for cause and
further agrees to pay the VP, SALES AND MARKETING, 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 VP, SALES AND MARKETING. It is acknowledged by the parties
hereto that the VP, SALES AND MARKETING is being retained by the Company in the
capacity of independent contractor and not as an employee of the Company. The
VP, SALES AND MARKETING 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 (The VP, SALES AND MARKETING)
By:/s/ Xxxx Xxxxxx
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Authorized Signatory
