MANAGEMENT SERVICES AGREEMENT
MANAGEMENT SERVICES AGREEMENT, dated as of February 16, 2000 (the
"Agreement"), between CYBER DIALOGUE INC., a Delaware corporation (the
"Company"), and WAND PARTNERS INC., a Delaware corporation ("Wand"):
WHEREAS certain limited partnerships and a corporation affiliated with
Wand own, in the aggregate, a majority of the outstanding shares of common
stock, par value $.01 per share, of the Company; and
WHEREAS the Company and such partnerships and corporation have
requested that Wand provide certain financial and management advisory services
in connection with the business and operations of the Company;
NOW, THEREFORE, in consideration of the services to be rendered by Wand
to the Company and to evidence the obligations of the Company to Wand and the
mutual covenants contained herein, the parties hereby agree as follows:
1. ENGAGEMENT OF WAND. Wand will provide financial and management
advisory services to the Company and its subsidiaries as requested by the
Company's Board of Directors during the term of this Agreement.
2. TERM. The initial term of this Agreement shall begin on the date
hereof and end on the third anniversary of the date hereof. The term of this
Agreement shall be renewed automatically thereafter for subsequent one-year
terms, subject to termination by the Company's Board of Directors upon written
notice delivered to Wand at least 60 days prior to any renewal date.
3. COMPENSATION. As compensation for Wand's services pursuant to
Section 1, the Company shall pay Wand a fee (the "Fee") of $200,000.00 per
fiscal year, payable in four equal installments due on March 31, June 30,
September 30 and December 31 of each year. On each anniversary of the date of
this Agreement during the term hereof, the amount of the Fee for the next
succeeding year shall be reviewed by and may be adjusted in the discretion of
the Company's Board of Directors.
4. REIMBURSEMENT OF EXPENSES; CHIEF EXECUTIVE OFFICER. In addition to
the compensation to be paid pursuant to Section 3 hereof, the Company agrees to
reimburse Wand promptly for all reasonable out-of-pocket expenses (including,
without limitation, all reasonable attorneys' fees and expenses) incurred by
Wand in connection with the performance by it of the services contemplated by
Section 1 hereof. In addition, for so long as the Company's Board of Directors
shall desire that Xxxx Esiri serve as the Company's Chief Executive Officer and
Xxxx Esiri is employed by Wand and agrees to serve as the Company's Chief
Executive Officer, his compensation shall be paid by Wand, and the Company
agrees to reimburse Wand promptly for such expense; PROVIDED, HOWEVER, that the
Company shall not reimburse Wand for compensation paid by Wand to Mr. Esiri in
excess of such amounts approved by the Company's Board of Directors.
5. INDEMNIFICATION. The Company hereby agrees to indemnify Wand and
certain related persons and entities as provided in EXHIBIT A attached hereto
and incorporated herein. The indemnity provisions contained in EXHIBIT A shall
remain operative and in full force and effect notwithstanding termination of
this Agreement.
6. CONFIDENTIAL INFORMATION. Wand shall, and shall cause its
subsidiaries and affiliates and the officers, directors, employees, and agents
of each of the foregoing to hold confidential and not to use in any manner
detrimental to the Company all information it may have or obtain concerning the
Company and its assets, business, operations, and prospects; PROVIDED, HOWEVER,
that the foregoing shall not apply to (a) information that is or becomes
generally available to the public other than as a result of a disclosure by Wand
or any of its subsidiaries or affiliates and the officers, directors, employees,
legal counsel, or other representatives of any of the foregoing, (b) information
that is or becomes available to Wand or any of its officers, directors,
employees, legal counsel, or other representatives on a nonconfidential basis
prior to its disclosure by the Company or its employees, agents, accountants,
legal counsel, or other representatives, and (c) information that is required to
be disclosed by Wand or its officers, directors, employees, and agents as a
result of any applicable law, rule, or regulation of any governmental authority
or stock exchange.
7. GOVERNING LAW. This Agreement shall be construed, interpreted, and
enforced in accordance with the laws of the State of Delaware, excluding any
conflicts-of-laws provisions thereof.
8. ASSIGNMENT. This Agreement and all provisions contained herein shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; PROVIDED, HOWEVER, that neither this
Agreement nor any
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of the rights, interests, or obligations hereunder shall be assigned by any of
the parties without the prior written consent of the other party.
9. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, and the signature of any
party to any counterpart shall be deemed a signature to, and may be appended to,
any other counterpart.
10. AMENDMENT, MODIFICATION OR WAIVER. This Agreement may be amended,
modified or waived only by an instrument in writing signed by all the parties
hereto.
11. NOT A RETAINER. The Fee paid to Wand pursuant to this Agreement is
for general advice and monitoring services only. Any additional services
requested to be provided by Wand to the Company, including, but not limited to,
merchant banking services and financial advice with respect to a specific
transaction will be provided by Wand in exchange for additional fees pursuant to
agreements to be negotiated on an arm's length basis among the parties at or
prior to the time such services or advice is required.
12. OTHER UNDERSTANDINGS. All discussions, understanding, and
agreements heretofore made between any of the parties hereto with respect to
the subject matter hereof are merged in this Agreement, which alone fully and
completely expresses the Agreement of the parties hereto.
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IN WITNESS WHEREOF, the Company and Wand have executed and delivered
this Agreement as of the date first above written.
CYBER DIALOGUE INC.
By: /s/ Xxxxxx Xxxx
------------------------
Name: Xxxxxx Xxxx
Title: Chief Operating Officer and
Chief Financial Officer
WAND PARTNERS INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
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EXHIBIT A
The Company and its successors (collectively, the "Indemnitor"), hereby
agrees to indemnify and hold harmless Wand, its affiliates and stockholders, and
their respective directors, officers, agents, employees, and affiliates
(collectively, the "Wand Group") from and against any claims, actions,
proceedings, demands, liabilities, damages, judgments, assessments, losses, and
costs, including fees and expenses, arising out of or in connection with the
services rendered by Wand under this Agreement, and will reimburse the Wand
Group for all such fees and expenses, including reasonable fees and expenses of
counsel for the Wand Group, as they are incurred by the Wand Group in connection
with investigating, preparing, or defending any such claims, actions,
proceedings, demands, or assessments, whether or not in connection with any
pending or threatened investigation, litigation, or other proceeding in which
the Wand Group is a party. The Indemnitor will not, however, be responsible for
any claims, liabilities, losses, damages, or expenses that have been reimbursed
under other agreements or that are determined by final judgment of a court of
competent jurisdiction to have resulted primarily from the Wand Group's gross
negligence, bad faith, or willful breach of its obligations under this
Agreement. The Indemnitor also agrees that the Wand Group shall have no
liability for claims, liabilities, damages, losses, or expenses, including legal
fees, incurred by the Indemnitor unless they are determined by final judgment of
a court of competent jurisdiction to result primarily from the Wand Group's
gross negligence, bad faith, or willful breach of its obligations under this
Agreement.
In case any action shall be brought against the Wand Group with respect
to which indemnification may be sought against the Indemnitor under this
Agreement, the Wand Group shall promptly notify the Indemnitor in writing, and
the Indemnitor shall, if requested by Wand, assume the defense thereof,
including the employment of counsel and payment of all fees and expenses. The
Wand Group shall have the right to employ separate counsel in such action and
participate in the defense thereof, but the fees and expenses of such separate
counsel shall be at the expense of the Wand Group, unless (i) the Indemnitor
shall have failed to assume the defense and employ counsel or (ii) the named
parties to any such action (including any impleaded parties) included the Wand
Group and any of the Indemnitor, and the Wand Group shall have been advised by
such separate counsel that there may be one or more legal defenses available to
it which are different from or additional to those available to the Indemnitor;
PROVIDED, HOWEVER, that the Indemnitor shall not in such event be responsible
hereunder for the fees and expenses of more than one such firm of
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separate counsel, in addition to any local counsel. The Indemnitor shall not be
liable for any settlement of any such action effected without the written
consent of the Indemnitor (which shall not be unreasonably withheld) and, except
as provided above, the Indemnitor agrees to indemnify and hold harmless the Wand
Group from and against any loss or liability by reason of settlement of any
action effected with the consent of the Indemnitor.
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