Attached files
THIS MANAGEMENT SERVICE AGREEMENT entered into as of the 30th day of August 2011
BETWEEN:
Xcelmobility Inc., a corporation incorporated under the laws of Nevada, USA, and having an Executive Office at #600 - 303 Twin Dolphins Drive, Redwood City, California.
(the “Company”)
AND:
Renyan Ge, Businessman of Room 15A, 17/F., Mai On Industrial Building No.17-21 Kung Yip Street Kwai Chung, Hong Kong .
(“Ge”)
WHEREAS:
A. The Company wishes to engage Ge as provided herein; and
B. The Company and Ge wish to enter into a management Services Contract for their mutual benefit and subject to the terms outlined in this Agreement.
NOW THEREFORE in consideration of the premises and mutual covenants herein contained, the parties hereto agree as follows:
1.0
MANAGEMENT SERVICES
1.1
Ge represents and warrants to the Company that Ge has the required skills and
experience to perform the duties and exercise the responsibilities required
of Ge in the position of Chief Executive Officer.
1.2 Ge and the Company agree to comply with and to be bound by the terms and conditions of this Agreement.
1.3 During the term of employment, Ge shall well and faithfully serve and devote himself exclusively to the Company.
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1.4 In carrying out these duties and responsibilities, Ge undertakes to comply with all lawful instructions and directions, which he may receive from the Company. The duties and responsibilities to be carried out by Ge will be commensurate with the duties of a Chief Executive Officer. Ge shall report to the Board as a whole as requested.
1.5 Ge agrees and understands that the effective performance of Ge’s duties requires the highest level of integrity and the Company’s complete confidence in Ge’s relationship with other employees of the Company and with all persons dealt with by Ge in the course of his employment. Ge is required to ensure that he conducts himself in a professional, businesslike manner at all times.
1.6 Ge acknowledges and agrees to familiarize himself with and to comply with all of the Company’s policies, practices and procedures as adopted from time to time.
1.7 Ge shall be subject to an annual performance review.
2.0
DUTIES
2.1 Job
descriptions specific to the position will be developed by the Compensation
Committee of the Board, but in general terms Ge shall be responsible for the
following:
| (a) |
Oversees the operations of organization and manages its compliance with legal and regulatory requirements | |
| (b) |
Creates and maintains procedures for implementing plans approved by the board of directors | |
| (c) |
Promotes a culture that reflects the organization’s values, encourages good performance, and rewards productivity | |
| (d) |
Hires, manages, and fires the human resources of the organization according to authorized personnel policies and procedures that fully conform to current laws and regulations | |
| (e) |
Ensures that staff and board have sufficient and up-to-date information | |
| (f) |
Evaluates the organization’s and the staff’s performance on a regular basis | |
| (g) |
Oversees staff in developing annual budgets that support operating plans and submits budgets for board approval |
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| (h) |
Prudently manages the organization's resources within budget guidelines according to current laws and regulations | |
| (i) |
Ensures that staff practices all appropriate accounting procedures in compliance with Generally Accepted Accounting Principles (GAAP) | |
| (j) |
Provides prompt, thorough, and accurate information to keep the board appropriately informed of the organization’s financial position | |
| (k) |
Develops fund raising strategies with the board and supports the board in fund raising activities | |
| (l) |
Oversees staff in the development and implementation of fund raising plans that support strategies adopted by the Development Committee | |
| (m) |
Serves as a primary person in donor relationships and the person to make one-on-one fund raising solicitations | |
| (n) |
Oversees staff in the timely submission grant applications and progress reports for funders | |
| (o) |
Oversees design, delivery, and quality of programs and services | |
| (p) |
Stays abreast of current trends related to the organization’s products and services and anticipates future trends likely to have an impact on its work | |
| (q) |
Collects and analyzes evaluation information that measures the success of the organization’s program efforts; refines or changes programs in response to that information | |
| (r) |
Supports operations and administration of the board by advising and informing board members and interfacing between board and staff | |
| (s) |
Advises the board in the development of policies and planning recommendations |
3.0
DURATION OF AGREEMENT
3.1 The
term of appointment and engagement of Ge shall commence on August 30, 2011 (the
“Commencement Date”) and continue for an indefinite term. It is understood
and acknowledged that Ge’s base management fee shall be deemed to have
been earned as of July 28, 2011 notwithstanding the date this Agreement is entered
into.
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4.0
REMUNERATION AND BENEFITS
4.1
In consideration of Ge’s undertaking and performance of the obligations
contained in this Agreement, the Company will compensate Ge for his services
as follows:
| (a) |
Base Management Fee – development period: Ge is required to work more than 160 hours per month during the development period (until at least $2 million in funding has been obtained) and will be entitled to $5,000.00, per month during this period; | |
| (b) |
Base Management – post development period: After an aggregate of $2 million in funding is raised, the salary of Ge will be reviewed by the Compensation Committee of the Board of Directors. The Compensation Committee will recommend a revised management fee for Ge, but it will not be less than $180,000 per year. The revised management fee will come immediately upon funding. | |
| (c) |
Benefits: Ge shall be entitled to all of the benefits arising from the benefit plans of the Company as they may exist from time to time or as revised by the Compensation Committee of the Board of Directors ; | |
| (d) |
Vacation: At a time or times which are mutually convenient for the Company and Ge, Ge shall be entitled to five (5) weeks vacation during each calendar year of his engagement, of which not more than two weeks shall be taken at one time. Ge will be permitted to carry forward any unused vacation to the next year or receive compensation in kind; | |
| (f) |
Bonus: |
(i) The Compensation Committee of the Board of Directors will recommend a bonus program for Ge. Ge will be eligible for a significant bonus depending upon specific performance criteria for Ge and the overall financial performance of the Company in each fiscal year. This bonus, is payable within 120 days of the fiscal year end of the Company; and
(ii) No bonus shall be payable to Ge from the date that he ceases to be actively engaged by the Company. Specifically, Ge is not entitled to a bonus for the year in which Ge terminates his engagement. In the event Ge’s engagement is terminated in the absence of just cause, Ge will receive bonus payments for the entire notice period in the amount determined by the average of the last two bonus payments made or $100,000 where no bonus payments have been made.
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| (d) |
Expenses: The company will reimburse or pay for all reasonable business expenses incurred by Ge in the execution of his duties. This includes the expenses for airfare, accommodation and other business related expense. Any expense in excess of $2,500 or re-occurring expenses in excess of $1,000 per month will be approved by the CEO or CFO. |
5.0
TERMINATION
5.1 This
Agreement may be terminated by the Company as follows:
| (a) |
In the absence of just cause by the Company, Ge will receive payments in lieu of notice, based upon the length of services Ge has provided the Company: |
| Service Period | Notice | |
| (i) less than thirty six months of service | Eighteen (18) months’ notice | |
| (ii) more than thirty-six months of service | Thirty (30) months’ notice |
| (b) |
Where the Company elects to give Ge notice of termination of this Agreement, in the absence of just cause, Ge may choose to receive payments due in either a lump sum, on a continuance basis or a combination of both. | |
| (c) |
During the period of notice, Ge will not be required to perform the responsibilities of his position and will return to the Company all property in his possession that belongs to the Company. | |
| (d) |
Where there is just cause for termination of the engagement or if Ge is in material breach of his obligations under this Agreement, Ge will not be entitled to notice, bonus payments or payment in lieu of notice of the termination of his management Services Agreement. The engagement of Ge shall cease upon receipt of notice that his services are being terminated for just cause. For the purposes of this Agreement, “just cause” will be defined by the common law. |
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5.2 In the event that there is a change in control of the company the Ge can elect to follow one of the following options:
| (i) |
Within 30 days of the change of control event, Ge may immediately terminate this agreement and sign a new agreement with the controlling entity; | |
| (ii) |
If Ge does not sign a new agreement with the controlling entity, the controlling entity will proved Ge a cash payment equal to 1.5 times his annual salary at the time of the change of control event. This payment must be made within 60 days of the change of control event. |
5.3 This Agreement may be terminated by Ge with 2 months written notice to the Company. The Company may waive this notice requirement by written notice.
6.0
CONFIDENTIAL INFORMATION AND PROPERTY
6.1 Ge
acknowledges that as the Chief Executive Officer and in any other position the
Ge may hold, a relationship of confidence, trust and fiduciary obligation is
created between Ge and the Company, and Ge will acquire information about certain
matters and things which are confidential to the Company, and which information
is the exclusive property of the Company including:
| (a) |
financial statements, financial books and records, reserve reports and estimates and other related information; | |
| (b) |
information concerning products, pricing, sales and marketing policies, techniques and concepts, including costing information, in respect of products and services provided or to be provided by Ge; |
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| (c) |
lists of present and prospective clients and related information, including names and addresses, borrowing habits and preferences of present and prospective clients of the Company; | |
| (d) |
purchasing information, including the names and addresses of present and prospective suppliers of the Company and prices charged by such suppliers; | |
| (e) |
computer systems, computer programs, data, software, system documentation, designs, manuals, databases; | |
| (f) |
trade secrets; and | |
| (g) |
any other materials or information related to the personnel, business operations, financing or activities of the Company which are not generally known to others engaged in similar businesses or activities. | |
|
(collectively, “Confidential Information”) |
6.2 Ge acknowledges and agrees that the Confidential Information could be used to the detriment of the Company. Accordingly, Ge agrees and undertakes not to disclose Confidential Information to any third party either during the term of his engagement except as may be necessary in the proper discharge of his employment, or after the term of his engagement, however caused, except with the written permission of the Company.
6.3 Ge understands and agrees that all items of any and every nature or kind created by Ge pursuant to Ge’s employment under this Agreement or furnished by the Company to Ge, and all equipment, automobiles, credit cards, books, records, reports, files, manuals and any other documents and confidential information shall remain and be considered the exclusive property of the Company at all times, and shall be returned and shall be returned to the Company in good condition promptly on the termination of this Agreement, for any reason.
7.0
NON-COMPETITION
7.1 Ge
also acknowledges that, by reason of employment, Ge will continue to receive
the value and advantage of special training, skills and expert knowledge and
experience of and contacts with customers of the Company and other employees
of the Company who are engaged in the business of the Company.
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7.2 Ge further acknowledges that, in the course of employment, Ge will be assigned duties that will give him knowledge of confidential and proprietary information which relates to the conduct and details of the Company’s business and which will result in irreparable harm or injury to the Company which could not be adequately compensated by monetary damages if Ge should enter into the employment of a business which is the same as, or competitive with, the business of the Company, or should Ge enter into the business of the Company.
7.3 Ge shall not commence, engage in, or participate in any business competitive with the business of the Company either directly or indirectly, either as individual or as a partner or joint venturer or as an employee, principal, consultant, agent, shareholder, officer, director or representative for any person, association, organization, or in any manner for a period of six months following the termination of his employment with the Company for any reason.
7.4 Ge acknowledges and agrees that without prejudice to any and all other rights of the Company, in the event of his violation of any of the covenants contained in Sections 6 and 7, an injunction or other like remedy, including an interim injunction, will be a reasonable and effective remedy to protect the Company’s rights and property.
8.0 SUCCESSORS
AND PERSONAL REPRESENTATIVES
8.1 This
Agreement shall enure to the benefit of and be enforceable by the personal or
legal representatives, executors, administrators, successors, assigns and heirs
of the parties hereto.
9.0
NOTICE
9.1
Any notice or other communication
required or contemplated under this Agreement to be given by one party to the
other shall be delivered or mailed by prepared registered post to the party
to receive same at the undernoted address, namely:
| (a) |
To the Company: | |
|
Xcelmobility Inc. #600 - 303 Twin Dolphins Drive, Redwood City, California. | ||
| (b) |
Renyan Ge: | |
|
Room 15A, 17/F., Mai On Industrial Building No.17-21 Kung Yip Street Kwai Chung, Hong Kong |
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Any notice delivered shall be delivered personally to Ge and shall be deemed to have been given and received on the business day next following the date of delivery. Any notice mailed as aforesaid shall be deemed to have been given and received on the fifth business day following the date it is posted, provided that if between the time of mailing and actual receipt of the notice there shall be a mail strike, slowdown or other labour dispute which might affect delivery of the notice by mail, then the notice shall be effective only if actually delivered.
10.0
MODIFICATION/AMENDMENT
10.1 No
provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and signed by Ge and
such officer as may be specifically designated by the Board. No waiver by either
party hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party will be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time.
11.0
ENTIRE AGREEMENT
11.1 No
agreements or representations, oral or otherwise, express or implied, with respect
to the subject matter hereof have been made by either party which are not expressly
set forth in this Agreement.
12.0 GOVERNING
LAW
12.1 The
validity, interpretation, construction and performance of this Agreement shall
be governed in accordance with the laws of the State of Nevada.
13.0 VALIDITY
13.1 The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
14.0 INDEMNIFICATION
14.1 Ge
agrees to indemnify the Company against any claims made for the collection,
withholding and payment of any personal taxes associated with the work performed
by Ge for the Company by any jurisdiction that makes a claim against Ge or the
Company. Furthermore, Ge agrees that if necessary, he will sign additional documents
that indemnify the Company against claims for taxes owed in relation to payments
made to Ge based on this Management Services Agreement.
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15.0 SIGNATURES
IN COUNTERPARTS
15.1
This Agreement may be
signed in counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. The parties
hereto confirm that any facsimile, scanned or emailed copy of another party's
executed counterpart of this Agreement (or its signature page thereof) will
be deemed to be an executed original thereof.
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IN WITNESS WHEREOF the parties hereto have executed these presents the day and year first above written.
| The Corporate Seal of the Company, | |
| XCELMOBILITY INC. | |
| was hereunto affixed in the presence of: | C/S |
| /s/ | |
| Authorized Signatory |
| SIGNED, SEALED AND DELIVERED by | |||
| RENYAN GE in the presence of: | |||
| Signature | |||
| /s/ | |||
| Address: | RENYAN GE | ||
| Room 15A, 17/F., Mai On Industrial Building | |||
| No.17-21 Kung Yip Street Kwai Chung, Hong | |||
| Kong |
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