MANAGEMENT AGREEMENT
This Management Agreement (the "AGREEMENT") is made as of the 1st day of
December, 1995, by and between FDC Technologies, Inc., a Delaware corporation
(the "COMPANY"), the Company's subsidiaries that are listed on Schedule A
hereto (the "SUBSIDIARIES") and TC Group, L.L.C., a Delaware limited
liability company ("CARLYLE").
WHEREAS, Carlyle, by and through its officers, employees, agents,
representatives and affiliates, has expertise in the areas of corporate
management, finance, product strategy, investment, acquisitions and other
matters relating to the business of the Company; and
WHEREAS, the Company and each of its Subsidiaries desires to avail
itself of the expertise of Carlyle in the aforesaid areas, in which it
acknowledges the expertise of Carlyle.
NOW, THEREFORE, in consideration of the foregoing recitals and covenants
and conditions herein set forth, the parties hereto agree as follows:
1. APPOINTMENT. The Company and the Subsidiaries hereby appoint
Carlyle to render the advisory and consulting services described in Paragraph
2 hereof for the term of this Agreement.
2. SERVICES. Carlyle hereby agrees that during the term of this
Agreement it shall render to the Company and each of its Subsidiaries, by and
through such of Carlyle's officers, employees, agents, representatives and
affiliates as Carlyle, in its sole discretion, shall designate from time to
time, advisory and consulting services (the "SERVICES") in relation to the
planning and other services (but not including those referred to in the next
sentence) including, without limitation, advisory and consulting services in
relation to the selection, retention and supervision of outside legal
counsel, and the selection, retention and supervision of investment bankers
or other financial advisors or consultants. It is expressly agreed that the
services to be performed hereunder shall not include investment banking or
other financial advisory services rendered by Carlyle to the Company or any
of its Subsidiaries in connection with acquisitions and divestitures by the
Company or any of its Subsidiaries. Carlyle shall be entitled to receive
additional reasonable compensation for providing any services of the type
specified in the preceding sentence.
3. FEES. In consideration of the services contemplated by Paragraph 2,
subject to the provisions of Paragraph 6, the Company, its Subsidiaries and
their successors agree to pay to Carlyle an aggregate per annum fee (the
"FEE") equal to $300,000, commencing on the date hereof. The Fee shall be
payable monthly in advance. Fee payments shall be non-refundable.
4. REIMBURSEMENTS. In addition to the Fee, the Company and its
Subsidiaries shall, at the direction of Carlyle, pay directly or reimburse
Carlyle for its reasonable Out-of-Pocket Expenses. For the purposes of this
Agreement, the term "OUT-OF-POCKET EXPENSES" shall mean the amounts actually
paid by Carlyle in cash in connection with the services provided for in
Paragraph 2, including, without limitation, reasonable (i) fees and
disbursements of any independent professionals and organizations, including
independent auditors, outside legal
counsel, consultants, investment bankers or financial advisors, (ii) costs of
any outside services or independent contractors such as financial printers,
couriers, business publications of similar services and (iii) transportation,
per diem, telephone calls, word processing expenses or any similar expense
not associated with its ordinary operations. All reimbursements for
Out-of-Pocket Expenses shall be made promptly upon or as soon as practicable
after presentation by Carlyle to the Company or any of its Subsidiaries of
the statement in connection therewith.
5. INDEMNIFICATION. The Company and its Subsidiaries will indemnify
and hold harmless Carlyle and its officers, employees, agent, representatives
and affiliates (each being an "INDEMNIFIED PARTY") from and against any and
all losses, claims, damages and liabilities, joint or several (the
"LIABILITIES"), to which such Indemnified Party may become subject under any
applicable federal or state law, or any claim made by any third party, or
otherwise, to the extent they relate to or arise out of the Services
contemplated by this Agreement or the engagement of Carlyle pursuant to, and
the performance by Carlyle of the Services contemplated by, this Agreement.
The Company and its Subsidiaries will reimburse any Indemnified Party for all
reasonable costs and expenses (including reasonable attorneys' fees and
expenses) as they are incurred in connection with the investigation of,
preparation for or defense of any pending or threatened claim for which the
Indemnified Party is a party hereto, provided that, subject to the following
sentence, the Company and the Subsidiaries shall be entitled to assume the
defense thereof at their own expense, with counsel satisfactory to such
Indemnified Party in its reasonable judgment. Any Indemnified Party may, at
its own expense, retain separate counsel to participate in such defense, and
in any action, claim or proceeding in which both the Company or any of its
Subsidiaries, on the one hand, and an Indemnified Party, on the other hand,
or is reasonably likely to become, a party, such Indemnified Party shall have
the right to employ separate counsel at the Company's expense and to control
its own defense of such action, claim or proceeding if, in the reasonable
opinion of counsel to such Indemnified Party, a conflict or potential
conflict exists between the Company or its Subsidiaries, on the one hand, and
such Indemnified Party, on the other hand, that would make such separate
representation advisable. Each of the Company and its Subsidiaries agrees
that it will not, without the prior written consent of the applicable
Indemnified Party, settle, compromise or consent to the entry of any judgment
in any pending or threatened claim, action or proceeding relating to the
matters contemplated hereby (if any Indemnified Party is a party thereto or
has been actually threatened to be made a party thereto) unless such
settlement, compromise or consent includes an unconditional release of the
applicable Indemnified Party and each other Indemnified Party from all
liability arising or that may arise out of such claim, action or proceeding.
Provided that neither the Company nor any of its Subsidiaries is in breach of
its indemnification obligations hereunder, no Indemnified Party shall settle
or compromise any claim subject to indemnification hereunder without the
consent of the Company. Neither the Company nor any of its Subsidiaries will
be liable under the foregoing indemnification provision to the extent that
any loss, claim, damage, liability, cost or expense is determined by a court,
in a final judgment from which no further appeal may be taken, to have
resulted solely from the gross negligence of willful misconduct of Carlyle.
If an Indemnified Party is reimbursed hereunder for any expenses, such
reimbursement of expenses shall be refunded to the extent it is finally
judicially determined that the Liabilities in question resulted solely from
the gross negligence or willful misconduct of Carlyle.
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6. TERM. This Agreement shall be in effect on the date hereof and
shall continue until such time as Xxxxxxx, XX Group, L.L.C. and any affiliate
thereof collectively control, in the aggregate, less than 10% of the
outstanding shares of voting common stock of the Company. The provisions of
Paragraphs 5, 7 and 8 and otherwise as the context so requires shall survive
the termination of this Agreement.
7. PERMISSIBLE ACTIVITIES. Subject to all applicable provisions of
Delaware law that impose fiduciary duties upon Carlyle or its partners or
affiliates, nothing herein shall in any way preclude Carlyle or its officers,
employees, agents, representatives or affiliates from engaging in any
business activities or from performing services for its or their own account
or for the account of others, including for companies that may be in
competition with the business conducted by the Company.
8. GENERAL.
(a) No amendment or waiver of any provision of this Agreement, or
consent to any departure by either party from any such provision, shall be
effective unless the same shall be in writing and signed by the parties to
this Agreement, and, in any case, such amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose for
which given.
(b) This Agreement may be assigned or transferred to a Carlyle
affiliate at the sole discretion of Carlyle.
(c) Any and all notices hereunder shall, in the absence of
receipted hand delivery, be deemed duly given when mailed, if the same shall
be sent by registered or certified mail, return receipt requested, and the
mailing date shall be deemed the date from which all time periods pertaining
to a date of notice shall run. Notices shall be addressed to the parties at
the following addresses:
If to Carlyle: The Carlyle Group, L.P.
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000 Xxxxx
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxx
If to the Company FDC Technologies, Inc.
or its Subsidiaries: 0000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
(d) This Agreement shall constitute the entire agreement between
the parties with respect to the subject matter hereof, and shall supersede
all previous oral and written (and all contemporaneous oral) negotiations,
commitments, agreements and understandings relating hereto.
(e) This Agreement shall be governed by, and enforced in
accordance with, the laws of the State of Delaware (excluding the choice of
law principles thereof). The parties to
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this Agreement hereby agree to submit to the non-exclusive jurisdiction of
the federal and state courts located in the state of Delaware in any action
or proceeding arising out of or relating to This Agreement. This Agreement
shall inure to the benefit of, and be binding upon, Carlyle, the Company and
its Subsidiaries (including any future subsidiaries of the Company that are
not signatories hereto), and their respective successors and assigns.
(f) This Agreement may be executed in two or more counterparts,
and by different parties on separate counterparts. Each set of counterparts
showing execution by all parties shall be deemed an original, and shall
constitute one and the same instrument.
(g) The waiver by any party of any breach of this Agreement shall
not operate as or be construed to be a waiver by such party of any subsequent
breach.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered by their duly authorized officers or agents as set
forth below.
FDC TECHNOLOGIES, INC. AND ITS
SUBSIDIARIES
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
TC GROUP, L.L.C.
By: TGG Holdings, L.L.C.
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Principal
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SCHEDULE A
DOXSYS, INC.
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