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EXHIBIT 10.2
MANAGEMENT AGREEMENT
This MANAGEMENT AGREEMENT is entered into as of the 11th day of
December, 1998 and effective on the 1st day of November, 1998, by and
between World Telehealth Corporation (the "Company"), a Florida
corporation and COI Solutions Inc. (the "Manager"), a Nevada
corporation.
R E C I T A L S:
A. The Company is engaged in providing a wide range of
telemedicine services and network related applications on a global
basis;
B. The Manager professes an expertise in consulting services,
contracting services, project management services, and operational
services of telecommunications systems, network centric applications
and information technology, including the management of business
relationships;
C. The Manager desires to associate with the Company for the
purpose of providing professional services which, upon completion,
shall become the property of the Company upon the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties intending to be legally bound agree as follows:
ARTICLE IPROFESSIONAL SERVICES
1.1 Appointment of Manager. The Company appoints the Manager and
the Manager accepts appointment on the terms and conditions provided in
this Agreement as a Manager to the Company's businesses.
1.2 Board of Directors Supervision. The activities of the
Manager to be performed under this Agreement shall be subject to the
supervision of the Chairman of the Board (the "Chairman") of the
Company and subject to reasonable policies not inconsistent with the
terms of this Agreement adopted by the Board of Directors of the
Company (the "Board") and in effect from time to time. Subject to the
foregoing limitations and otherwise where not required by applicable
law or regulation, the Manager shall not require the prior approval of
the Board to perform its duties under this Agreement.
1.3 Authority of Manager. Subject to any limitations imposed by
applicable law or regulation or by the Chairman or the Board, the
Manager shall render management, consulting and financial services to
the Company for the start up and operation of the Company, including
the services set forth on Exhibit A attached hereto. The Manager will
use its best efforts to cause its employees and agents to give the
Company the benefit of their special knowledge, skill and business
expertise to the extent relevant to the Company's businesses.
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1.4 Reimbursement of Expenses; Independent Contractor. The
Manager shall not, without the written consent of the Chairman, perform
any of the following, except to the extent payable, out of the
Management Fee (as hereinafter defined) (i) make any advance to or for
the account of the Company, (ii) pay any sums held in accounts
maintained by the Company, or (iii) incur any liability or obligation
for the account of the Company. The Manager shall be an independent
contractor, and nothing obtaining in this Agreement shall be deemed or
construed (i) to create a partnership or joint venture between the
Company and the Manager, (ii) to cause the Manager to be responsible in
any way for the debts, liabilities or obligations of the Company or any
other party, or (iii) to constitute the Manager or any of its employees
as employees, officers or agents of the Company. The Company shall
promptly reimburse the Manager for all reasonable expenses actually
paid or incurred by the Manager in the course of and pursuant to the
business of the Company for travel and other project costs on condition
that any single expense which exceeds Five Thousand ($5,000.00) Dollars
is approved in writing and in advance by the Company. The Company
shall not be responsible for any single disbursement in excess of Five
Thousand ($5,000.00) Dollars to which it has not given written approval
in advance.
1.5 Other Activities of Manager. The Company acknowledges and
agrees that neither the Manager nor any of the Manager's employees,
officers, directors, affiliates or associates shall be required to
devote full time and business efforts to the duties of the Manager
specified in this Agreement, but instead shall devote only so much of
such time and efforts as the Manager reasonably deems necessary to
perform the services set forth on Exhibit A.
1.6 Compensation of Manager. The Company will pay to the Manager
an a monthly consulting and management fee of $165,000 (the "Management
Fee") which shall be payable on the first day of each month. These
fees are for the Manager's services as set forth on Exhibit A and the
following items shall be paid out of the Management Fee: (i) the
salaries for the full time employees of the Company on the date hereof,
▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇, (ii) retainer agreements with United
Sources of America, (iii) the incentives paid to the chairpersons of
the five Centers of Excellence (including contributions made by WTH
Medical resources) and (iv) the items marked as "IN" on Exhibit A. The
parties acknowledge that it is the responsibility of the Manager to
raise the funds, on behalf of the Company, necessary to pay the
Management Fee and until such funding is obtained, the Management Fee
due hereunder shall be accrued.
1.7 Term. The term of this Agreement (the "Term") is effective
as of November 1, 1998 and shall remain in effect until the earlier to
occur of (i) December 31, 1999 or (ii) termination pursuant to Section
1.8.
1.8 Termination. This Agreement may be terminated with, or
without cause, upon 30 days written notice, upon mutual agreement of
the parties. If a party is in breach of the provisions of this
Agreement including, but not limited to those set forth on Exhibit A,
then the non-breaching party may give notice of non-compliance (the
"Notice of Non-Compliance"). If the non-compliance is not cured within
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60 days, the Agreement will be terminated 60 days from the date of
Notice of Non-Compliance. In the event this Agreement is terminated for
any reason and the Company has not raised the necessary funding to pay
the Management Fee, then the Company shall not be responsible for any
accrued Management Fee or any future financial obligations under this
Agreement.
1.9 No Assignment. Without the consent of the Manager, the
Company shall not assign, transfer or convey any of their respective
rights, duties or interest under this Agreement, nor shall the Company
delegate any of the obligations or duties required to be kept or
performed by them hereunder. Without the prior written consent of the
Company, the Manager shall not assign, transfer or convey any of its
rights, duties or interests under this Agreement, nor shall it delegate
any of the obligations or duties required to be kept or performed by it
under this Agreement; provided, that, the Manager shall have the right
to hire employees and contract with others to perform the management
services as long as the project is supervised by and remains the
responsibility of the Manager. The Manager may provide additional
personnel (whether by way of employee or subcontractor) to perform the
services under this Agreement; provided that the compensation set forth
above shall be billable only by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or
▇▇▇▇ ▇. ▇▇▇▇▇ on behalf of Manager, unless agreed to in writing by the
Company.
1.10 Unauthorized Disclosure. During the Term and thereafter, the
Manager shall not, without the written consent of the Board or a person
authorized by the Board or as may otherwise be required by law or court
order, disclose to any person, other than an employee of the Company or
person to whom disclosure is reasonably necessary or appropriate in
connection with the performance by the Manager of its duties as Manager
of the Company, any Confidential Information (as hereinafter defined)
obtained by the Manager (or its officers, employees or agents) while
serving as a Manager. As used herein, Confidential Information means
not only information disclosed by the Company and its affiliates to the
Manager, but also information developed or learned by the Manager
during the course or as a result of his services hereunder, which
information the Manager acknowledges is and shall be the sole and
exclusive property of the Company. Confidential Information includes
all proprietary information that has or could have commercial value or
other utility in the business in which the Company or its affiliates
are engaged or contemplate engaging, and all proprietary information of
which the unauthorized disclosure could be detrimental to the interests
of any of the Company or its affiliates, whether or not such
information is specifically labeled as Confidential Information by the
Company. In the event of the Manager's relationship with the Company
ceases for any reason, the Manager will not remove from the premises of
the Company without its prior written consent any records, files,
drawings, documents, equipment belonging to the Company. The Manager's
obligations under this Section 1.10 shall survive the termination of
this Agreement.
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ARTICLE IIMISCELLANEOUS
2.1 Amendments and Waivers. This Agreement may not be amended,
nor any provision hereof waived, unless such amendment or waiver is
approved in writing by both parties.
2.2 Notices. All notices, requests, consents, reports and
demands shall be in writing and shall be hand delivered, sent by
facsimile or other electronic medium, or mailed, postage prepaid, to
either party at the address set forth below or to such other address as
may be furnished in writing to the other parties hereto. A notice
shall be deemed effective (i) upon delivery, if by hand, (ii) on the
date faxed or electronically transmitted, if confirmation of such
transmission is obtained, and (iii) upon the third day following
mailing as set forth above.
Company: World Telehealth Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Manager: COI Solutions, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇.▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
2.3 Expenses. Each of the parties to this Agreement shall bear
its own expenses incurred in connection with the negotiation,
preparation, execution and closing of this Agreement and the
transactions contemplated hereby.
2.4 Counterparts. This Agreement and any exhibit hereto may be
executed in multiple counterparts, each of which shall constitute an
original but all of which shall constitute but one and the same
instrument. One or more counterparts of this Agreement or any exhibit
hereto may be delivered via telecopier, with the intention that they
shall have the same effect as an original counterpart hereof.
2.5 Effect of Headings. The article and section headings herein
are for convenience only and shall not affect the construction hereof.
2.6 Further Assurances. Each of the parties shall execute and
deliver such documents, and take such other action, as shall be
reasonably requested by any other party hereto to carry out the
transactions contemplated by this Agreement.
2.7 Governing Law; Arbitration. This Agreement shall be deemed
a contract made under the laws of the State of Florida and together
with the rights and obligations of the parties hereunder, shall be
construed under and governed by the laws of such State. Other than
with respect to injunctive or equitable relief sought by either party
to this Agreement, all disputes arising after the Closing in connection
with this Agreement shall be finally settled under the Rules of the
American Arbitration Association (the "Rules") by three (3) arbitrators
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appointed in accordance with said Rules. Any such arbitration shall be
held pursuant to the Laws of the State of Florida unless the parties
hereto mutually agree in writing upon some other location for
arbitration. The arbitrators shall not be empowered to award punitive,
exemplary and/or consequential damages to any party. There shall be no
consolidation of this arbitration with any other dispute or proceeding
involving third parties. The provisions of this Agreement shall
prevail in case of inconsistency between the Rules and this Agreement.
2.8 Attorneys' Fees. In the event that a suit for the collection
of any damages resulting from, or for the injunction of any action
constituting, a breach of any of the terms or provisions of this
Agreement, then the prevailing party shall pay all reasonable costs,
fees (including reasonable attorneys' fees) and expenses of the non-
prevailing party.
2.9 Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter
hereof and shall supersede all prior negotiations, understandings,
agreements, arrangements and understandings, both oral and written,
among the parties hereto with respect to such subject matter.
2.10 Severability. The invalidity of any one or more of the
words, phrases, sentences, clauses, sections or subsections contained
in this Agreement shall not affect the enforceability of the remaining
portions of this Agreement or any part hereof, all of which are
inserted conditionally on their being valid in law and, in the event
that any one or more of the words, phrases, sentences, clauses,
sections or subsections contained in this Agreement shall be declared
invalid by a court of competent jurisdiction, this Agreement shall be
construed as if such invalid word or words, phrase or phrases, sentence
or sentences, clause or clauses, section or sections, or subsection or
subsections had not been inserted.
2.11 Construction. This Agreement and any documents or instruments
delivered pursuant hereto or in connection herewith shall be
constructed without regard to the identity of the persons who drafted
the various provisions of the same. Each and every provision of this
Agreement and such other documents and instruments shall be constructed
as though all of the parties participated equally in the drafting of
the same. Consequently, the parties acknowledge and agree that any rule
of construction that a document is to be constructed against the
drafting party shall not be applicable either to this Agreement or such
other documents and instruments.
2.12 Interpretation. It is mutually agreed between the parties
that this Agreement shall be interpreted in accordance with the laws of
the State of Florida and that the jurisdiction for any action commenced
by either party as against the other shall be the appropriate Court at
the City of Tampa in the State of Florida.
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IN WITNESS WHEREOF, the parties have executed this Agreement by
their duly authorized representatives as of the date set forth in the
first paragraph.
WORLD TELEHEALTH CORPORATION
BY: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chairman
COI SOLUTIONS INC.
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
