MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (the "Agreement") is entered into as of the 14th
day of September, 2006 by and between MEDIAVEST, INC., a New Jersey 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 at least $1,500,000 of common stock and warrants (such
date referred to herein as the "Effective Date").
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.
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.
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.
5. As compensation for the Management Services provided pursuant to
this Agreement, the Company agrees to pay the Manager a fee (the
"Management Fee") of $90,000 per quarter, 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 in advance at the beginning of each quarter.
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.
7. Subject to Section 7 below, the term of this Agreement will commence
on the Effective Date and will continue for a period of five (5)
years (the "Term").
8. (a) The parties hereto may terminate this Agreement at any time by
mutual written agreement.
(b) The Company may terminate this Agreement effective immediately
by (i) giving written notice of termination to Manager, and (ii)
concurrently therewith, making payment of a termination fee of
$1,000,000 to Manager.
(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
(d) Upon the 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
7(d), 9, 10, 11, 12, 13 and 17. 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.
9. This Agreement may not be assigned by the Manager without the prior
written approval of the Company.
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.
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 10. 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.
(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.
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:
To the Manager: XXXXXX MANAGEMENT, LLC
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
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To the Company: MEDIAVEST, INC.
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxx Xxxx
or such other addresses as the respective parties may in writing to
the other designate.
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.
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.
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.
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.
18. This Agreement shall be governed by the laws of the State of New
York.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
XXXXXX MANAGEMENT, LLC
By:
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Name:
Title:
MEDIAVEST, INC.
By:
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Name:
Title:
