EX-10.9






EXECUTIVE MANAGEMENT SERVICES AGREEMENT




THIS EXECUTIVE MANAGEMENT SERVICES AGREEMENT (the “Agreement”) is made by and between JCM
Partners, LLC, a Delaware limited liability company (“JCM”) and Computer Management Corporation, a
California corporation (“CMC”) and is effective as of July 1, 2007 (the “Effective Date”).



In consideration of the promises made herein and on the terms and subject to the conditions
contained herein, JCM and CMC hereby agree as follows:



1.0 Engagement



JCM hereby retains CMC to provide executive management services for JCM as provided herein
(the “Management Services”) for the period commencing on the Effective Date and continuing through
July 31, 2010 (the “Engagement Period”), subject to termination as provided under Section 4.0
below.



2.0 Management Services



2.1 General. CMC will employ Gayle M. Ing (“Ing”) to act as the Chief Executive Officer,
President, Tax Matters Partner and Secretary of JCM and cause Ing to report directly to JCM’s Board
of Managers (“Board”). Ing will have day-to-day responsibility and authority for the management
and direction of JCM, as well as such other duties and responsibilities commensurate with the
position of Chief Executive Officer.



2.2 Duties. Ing will perform her duties in conformity with the reasonable and appropriate
directions of the Board. Ing will devote her full working time, attention and energies to the
business and affairs of JCM, provided that Ing may engage in outside activities so long as such
outside activities do not conflict with her obligations as Chief Executive Officer of JCM or her
other positions, if any, with JCM.



2.3 Location. Ing will, subject to reasonable travel requirements on behalf of JCM, work at
JCM’s offices in Concord, California.



3.0 Compensation



3.1 Management Services Fee. JCM will pay to CMC a fee for the Management Services (the
“Fee”) at the monthly rate of $35,000 per month ($420,000 per year), payable semi-monthly on the
15th and last day of each month. Because this is a fee for independent contractor services and not
wages, JCM will not withhold taxes from the Fee.



3.2 Benefits. JCM will not be responsible for the cost of any employment benefits provided to
Ing.



3.3 Directors and Officers Insurance and Indemnity. JCM will maintain at all times a minimum
of $10,000,000 of directors and officers insurance coverage and $10,000,000 of liability insurance
coverage, and will list CMC and Ing as insured parties at the same coverage level as other JCM
officers and executives. A copy of the applicable insurance policies naming CMC and Ing as insured
parties and listing the then-current coverage levels shall be provided to CMC. Subject to the
exceptions specified in JCM’s standard form of Indemnification Agreement, JCM will indemnify,
defend and hold CMC and Ing harmless against any claims, costs (including legal fees) or
liabilities respecting CMC’s and Ing’s actions on behalf of JCM.



3.4 Reimbursement. JCM will reimburse CMC for its reasonable JCM-related expenses.



4.0 Termination



4.1 Termination at Will by Either Party. Either JCM or CMC may terminate this Agreement, for
any reason or for no reason, upon 90 days’ written notice to the other party.



4.2 Death or Permanent Disability of Ing. This Agreement will terminate automatically upon
the death or permanent disability of Ing. Ing will be deemed permanently disabled for the purpose
of this Agreement if in the good faith determination of the Board, based on the opinion of a
physician or other medical professional mutually agreed to by CMC and JCM, Ing has become
physically or mentally incapable of performing her duties hereunder for a continuous period of 120
days, in which event Ing will be deemed permanently disabled upon the expiration of such 120-day
period.



4.3 Compensation upon Termination. In the event that either JCM or CMC terminates this
Agreement for any reason, including without limitation because of the death or disability of Ing,
CMC will be entitled to receive the Fee provided for in Section 3.1 for the period of time ending
on the date the Agreement terminates, plus reimbursement for such expenses as CMC may have properly
incurred on behalf of JCM, as provided in Section 3.4 above, prior to the date the Agreement
terminates.



5.0 Assignment and Transfer



5.1 By JCM. This Agreement may not be assigned by JCM to any purchaser of all or
substantially all of JCM’s business or assets without the written consent of CMC.



5.2 By CMC. CMC’s rights and obligations under this Agreement will not be transferable by CMC
by assignment or otherwise, except with the prior written consent of JCM.



6.0 Confidentiality



6.1 Proprietary Information. CMC agrees that all trade secrets, confidential or proprietary
information with respect to the activities and businesses of JCM including, without limitation,
personnel information, non-public information regarding JCM’s investors, business plans, marketing
plans, forecasts, strategies and information which are acquired by CMC, or its agents or employees,
during the course of CMC’s engagement by JCM (“Proprietary Information”) will be kept and held in
confidence and trust by CMC, provided that Proprietary Information will not include any information
that (i) is in the public domain at the time of disclosure, (ii) though originally Proprietary
Information, subsequently enters the public domain other than by breach of CMC’s obligations
hereunder or by breach of another person’s or entity’s confidentiality obligations or (iii) is
shown by documentary evidence to have been known by CMC prior to disclosure to CMC by JCM. CMC
will not use or disclose Proprietary Information except as necessary in the normal course of the
business of JCM for its sole and exclusive benefit, unless CMC is compelled to so disclose under
process of law, in which case CMC will first notify JCM promptly after receipt of a demand to so
disclose. CMC agrees and acknowledges that it will cause all agents and employees of CMC to comply
with the terms of this subsection 6.1.



6.2 Ownership of Inventions. Discoveries, copyrightable materials, developments, designs,
ideas, improvements, inventions, formulas, processes, techniques, know-how, manuals, software,
written or recorded materials or information, and data (whether or not patentable or registerable
under copyright or similar statutes) that are made, conceived, or reduced to practice by CMC, or
its agents and employees while performing services for JCM for which CMC is expressly engaged and
compensated by JCM (“Inventions”), shall belong to and shall be the sole property of JCM. CMC
represents and warrants that CMC will not claim any intellectual property rights in any such
Inventions. To the extent that JCM uses intellectual property owned by CMC, or its employees or
agents, and such intellectual property is not assigned to JCM, then CMC agrees to grant to JCM and
agrees to cause its employees or agents to grant to JCM a non-exclusive transferable, worldwide,
royalty-free perpetual license to use all of CMC’s discoveries, copyrightable materials,
developments, designs, ideas, improvements, inventions, formulas, processes, techniques, know-how,
manuals, software, written or recorded materials or information, and data (whether or not
patentable or registerable under copyright or similar statutes) made, conceived, or reduced to
practice, while performing services for JCM (“Licensed Inventions”) under this Agreement. CMC
agrees to take reasonable and necessary steps to cause its agents and employees to comply with and
adhere to the provisions of this subsection 6.2.



6.3 Return of Materials. CMC agrees that, upon the request of JCM, and in any event upon
termination of this Agreement, CMC shall deliver to JCM (or have confirmed in writing to JCM that
JCM already has) the originals of all memoranda, notes, records, drawings, manuals, papers,
computer software, listings and other documents or materials (or copies of same if originals are
not available): (a) generated or developed by CMC under this Agreement or (b) made available to CMC
in connection with providing services to JCM under this Agreement. CMC agrees to take reasonable
and necessary steps to cause its agents and employees to comply with and adhere to the provisions
of this subsection 6.3.



6.4 Survivability. This Section 6.0, and each of its subsections, shall survive termination
of this Agreement.



7.0 Arbitration



7.1 General. Any dispute hereunder will be submitted to binding arbitration before a single
arbitrator in accordance with the Commercial Dispute Resolution Rules of the American Arbitration
Association (“AAA”), subject to the provisions set forth in this Section 7.0 and each of its
subsections.



7.2 Power of the Arbitrator. The arbitrator will be instructed and empowered to take whatever
steps to expedite the arbitration as he or she deems reasonable.



7.3 Allocation of Costs and Fees. Each party will pay fifty percent (50%) of the costs and
fees of the arbitration, including without limitation the administrative fees charged by AAA and
the fee of the arbitrator.



7.4 Finality of Judgment. The arbitrator’s judgment will be final and binding upon the
parties, except that it may be challenged on the grounds of fraud or gross misconduct.



7.5 Venue; Procedures. The arbitration will be held in San Francisco, California. Judgment
upon any award in the arbitration may be entered in any court of competent jurisdiction. The
parties hereby consent to the jurisdiction of, and proper venue in, the federal and state courts
located in San Francisco, California. The procedures specified in this Section 7.0 will be the
sole and exclusive procedures for the resolution of disputes and controversies between the parties
arising out of or relating to this Agreement; provided, however, that a party may seek a
preliminary injunction or other provisional judicial relief if in its judgment such action is
necessary to avoid irreparable damage or to preserve the status quo. Despite such action, the
parties will continue to participate in good faith in the procedures specified in this Section 7.0.



8.0 Independent Contractor



It is the express intention of the parties that CMC is an independent contractor and neither
it nor Ing are employees of JCM. CMC reserves the right to determine the method, manner and means
by which the services will be performed. CMC shall not be entitled to employ anyone other than Ing
to perform the Management Services without the express written consent of JCM. Nor shall CMC be
required to employ anyone other than Ing to perform the Management Services without its express
written consent. CMC is not required to provide the Management Services during a fixed hourly or
daily time.



9.0 Miscellaneous



9.1 Governing Law and Interpretation. This Agreement will be governed by the substantive laws
of the State of California applicable to contracts entered into and fully performed in such
jurisdiction. The headings and captions of the sections of this Agreement are for convenience only
and in no way define, limit or extend the scope or intent of this Agreement or any provision
hereof. This Agreement will be construed as a whole, according to its fair meaning, and not in
favor of or against any party, regardless of which party may have initially drafted certain
provisions set forth herein.



9.2 Notices. Any notice, request, claim or other communication required or permitted
hereunder will be in writing and will be deemed to have been duly given if delivered by hand or if
sent by Federal Express to CMC at the address set forth below its signature, or to JCM at its
address as set forth below its signature, or to such other address or addresses as either party may
have furnished to the other in writing in accordance herewith.



9.3 Entire Agreement and Amendments. This Agreement constitutes the final and complete
expression of all of the terms of the understanding and agreement between the parties hereto with
respect to the subject matter hereof, and this Agreement replaces and supersedes any and all prior
or contemporaneous negotiations, communications, understandings, obligations, commitments,
agreements or contracts, whether written or oral, between the parties respecting the subject matter
hereof. This Agreement may not be modified, amended, altered or supplemented except by means of
the execution and delivery of a written instrument mutually executed by both parties.



9.4 Attorneys’ Fees. In the event it becomes necessary for any party to initiate arbitration
or any other proceeding to enforce, defend or construe such party’s rights or obligations under
this Agreement, the prevailing party in such arbitration or proceeding will be entitled to its
reasonable costs and expenses, including attorneys’ fees, incurred in connection with such
arbitration or proceeding whether or not brought to final judgment, except as provided in
Section 7.3 of this Agreement. For purposes of the enforcement of this section, the “prevailing
party” will be the party receiving substantially the benefits or relief sought by that party. The
arbitrator or decision-maker under this Section 9.4 shall determine the prevailing party or parties
in any such arbitration or proceeding.



IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, with
the Agreement automatically taking effect as of the Effective Date.



	 	 	 	 	 
	JCM PARTNERS, LLC,
	 	COMPUTER MANAGEMENT CORPORATION, a
	a Delaware limited liability company
	 	California corporation

	By: /s/ Marvin Helder
	 	By: /s/ Gayle M. Ing

	 
	 	 	 	 
	Marvin Helder
	 	Gayle M. Ing

	Vice Chairman
	 	Vice President

	2151 Salvio Street, Suite 325
	 	614 Castro Street
	Concord, CA 94522-3000
	 	San Francisco, CA  94114

	Fax: (925) 676-1744
	 	Fax:  (415) 431-8758