MANAGEMENT AGREEMENT
THIS
MANAGEMENT AGREEMENT (the “Agreement”) is entered into as of the 15th day of
February, 2006 by and between U.S. WIRELESS DATA, INC., a Delaware corporation
(the “Company”) and XXXXXX MANAGEMENT, LLC, a Delaware limited liability company
(the “Manager”).
WITNESSETH:
WHEREAS,
pursuant to this Agreement the Company shall utilize the Manager’s services on
an ongoing basis for certain management services from the Effective Date and
continuing until the expiration or termination of this Agreement pursuant to
the
terms contained herein.
NOW
THEREFORE, in consideration of the foregoing and of the covenants herein, it
is
mutually agreed as follows:
| 1. |
The
effective date of this Agreement and the enforceability of the
terms and
conditions hereof shall be the date upon which the Company effects
the
initial closing under its currently contemplated financing of up
to
$2,000,000 of common stock and warrants (such date referred to
herein as
the “Effective Date”).
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| 2. |
The
Company hereby retains Manager and Manager agrees to provide the
Company
with management services (the “Management Services”) under and subject to
all of the terms, conditions and provisions
hereof.
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| 3. |
The
Management Services shall consist of certain management services,
including, without limitation the sourcing, structuring and negotiation
of
a potential business combination transaction involving the
Company.
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| 4. |
The
Manager shall provide such Management Services pursuant to the terms
and
conditions hereof. The Manager will provide the Management Services
hereunder with the same care and diligence that it would exercise
in the
performance of such services for its own
operations.
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| 5. |
As
compensation for the Management Services provided pursuant to this
Agreement, from and after the Effective Date, the Company agrees
to pay
the Manager a fee (the “Management Fee”) of $30,000 per month, plus
reimbursement of all expenses reasonably incurred by the Manager
in
connection with the provision of the Management Services. The Management
Fee shall be payable within fifteen (15) days of the end of each
calendar
month.
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| 6. |
It
is expressly understood by all parties hereto that during the term
hereof,
the Manager will diligently devote such time and best efforts as
is
reasonably required in the performance of the Management Services
and will
perform the Management Services conscientiously, efficiently and
to the
best of its ability. Except as otherwise set forth herein or in other
agreements with the Company, nothing contained in this Agreement
shall
preclude Manager from engaging in other business
activities.
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| 7. |
Subjectto
Section 8 below, the term of this Agreement will commence on
the Effective
Date and will continue for a period of five (5) years (the “Term”).
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| 8. |
(a)
The
parties hereto may terminate this Agreement at any time by mutual
written
agreement.
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(b)
Company may terminate this Agreement effective immediately by
(i) giving
written notice of termination to Manager, and (ii) concurrently
therewith,
making payment of The a termination fee of $1,000,000 to
Manager.
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(c)
Either party
may terminate this Agreement effective immediately by giving
written
notice of termination to the other party hereto only in the event
that
such other party shall default in any material respect in the
performance
of any duty or obligation imposed upon it by this Agreement
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(d)
Uponthe
termination of this Agreement in accordance with the terms hereof,
except
as set forth in this Agreement, neither party hereto shall have
any
further obligation or liability to the other party hereunder.
The
following provision of this Agreement shall survive such termination
or
expiration of this Agreement, Sections 8(d), 10, 11, 12, 13,
14 and 18.
Upon termination of this Agreement for any reason, the Manager
shall
deliver to the Company all records, contracts, agreements and
other
papers, documents or other materials which pertain to the Company’s
business and activities associated
therewith.
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| 9. |
This
Agreement may not be assigned by the Manager without the prior written
approval of the Company.
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| 10. |
The
Manager shall not have or claim at any time, by virtue of its performance
hereunder, any right, title or interest in any trade name, trademark,
copyright or other similar rights or in any property or other tangible
or
intangible assets of any type owned by the Company and shall not
have or
claim at any time any right, title or interest in any other material,
matter or asset of any sort prepared for or used in connection with
the
Company’s business or promotion.
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| 11. |
The
Manager expressly agrees that all books and records relating in any
manner
whatsoever to the Company’s business and all other files, books and
records and other material owned by the Company or used by it in
connection with the conduct of its business, whether prepared by
Manager’s
personnel, contract employees or otherwise coming into Manager’s
possession (collectively, the “Proprietary Information”), shall be the
exclusive property of the Company, regardless of who actually prepared
the
Proprietary Information. All such books and records and other materials
shall be returned immediately to the Company upon termination of
Manager’s
services. The Manager agrees that it shall not disclose, transfer,
use,
copy, or allow access to any such Proprietary Information to any
employees
or to any third parties, except for those who have a need to know
such
Proprietary Information in order to accomplish the requirements of
this
Agreement and who are bound by contractual obligations of confidentiality
and limitation of use sufficient to give effect to this Section 11.
In no
event shall the Manager disclose any such Proprietary Information
to any
competitors of the Company.
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| 12. |
(a)
The Company shall indemnify and hold harmless the Manager and its
officers, directors, stockholders and employees against all third
person
claims, liabilities, losses, costs and expenses (including reasonable
legal and accounting fees) whether or not covered by insurance,
caused or
asserted to have been caused, directly or indirectly, by or as
a result of
(i) any acts or omissions of the Company and its employees or (ii)
any
breach of or failure to perform any obligation under this Agreement
by the
Company and/or its agents, employees and/or subcontractors (other
than the
Manager), except to the extent caused by the bad faith, gross negligence,
willful misconduct or fraud of the
Manager.
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(b)
The Manager shall indemnify and hold harmless the Company and its
officers, directors, partners and employees against all third person
claims, liabilities, losses, costs and expenses (including reasonable
legal and accounting fees) whether or not covered by insurance, caused
or
asserted to have been caused, directly or indirectly, by or as a
result of
(i) any acts or omissions of the Manager and its employees or (ii)
any
breach of or failure to perform any obligation under this Agreement
by the
Manager and/or its agents, employees and/or subcontractors, except
to the
extent caused by the bad faith, gross negligence, willful misconduct
or
fraud of the Company.
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| 13. |
Any
notice required or permitted to be given under this Agreement by
one party
hereto to the other shall be in writing and shall be deemed to have
been
given as of the second business day following the date of mailing
if
mailed to the party to whom notice is to be given, by first class
mail,
registered or certified, postage prepaid and properly addressed as
follows:
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To
the Manager:
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XXXXXX
MANAGEMENT, LLC
0000
Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
Attention:
Xxxxxx Xxxxx
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To
the Company:
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U.S.
WIRELESS DATA, INC.
0000
Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
Attention:
Xxxxx Xxxxxx
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or
such other
addresses as the respective parties may in writing to the other
designate.
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| 14. |
If
a proceeding is brought for the enforcement of this Agreement, or
because
of an alleged dispute, breach, default or misrepresentation in connection
with any of the provisions of this Agreement, the successful or prevailing
party or parties shall be entitled to recover reasonable attorneys’ fees
and other costs incurred in connection with that action or proceeding,
in
addition to any other relief to which such party or parties may be
entitled.
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| 15. |
The
parties hereto agree that this Agreement constitutes the entire and
exclusive agreement between them pertaining to the subject matter
contained herein, and supersedes all prior or contemporaneous agreement
oral or written, conditions, representation, warranties, proposals
and
understandings of the parties pertaining to such subject
matter.
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| 16. |
The
provisions of this Agreement inure to the benefit of and are binding
on
the successor and assigns of the Company and the successor and assigns
of
Manager.
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| 17. |
Should
any paragraph or provision of this Agreement be held to be void,
invalid
or inoperative, it shall not affect any other paragraph or provision
herein, and the remainder of this Agreement shall be effective as
though
such void, invalid or inoperative paragraph or provision had not
been
contained herein.
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| 18. |
This
Agreement shall be governed by the laws of the State of
Delaware.
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[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as
of the day and year first above written.
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XXXXXX
MANAGEMENT, LLC
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| By: | /s/ Xxxxxx Xxxxx | |
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Name: Xxxxxx Xxxxx |
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Title:
Managing Member
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| U.S. WIRELESS DATA, INC. | ||
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| By: | /s/ Xxxxx Xxxxxx | |
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Name: Xxxxx Xxxxxx |
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| Title: President | ||
