MANAGEMENT AGREEMENT
THIS
MANAGEMENT AGREEMENT (the “Agreement”) is entered into as of August 20, 2007
(the “Effective Date”) by and between XXXX ACQUISITION II, 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
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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| 2. |
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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| 3. |
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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| 4. |
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 calendar 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. Notwithstanding the foregoing, the Manager
may,
in its sole discretion, waive all or any portion of the Management
Fee at
any time.
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| 5. |
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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| 6. |
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”).
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| 7. |
(a)The
parties hereto may terminate this Agreement at any time by mutual
written
agreement.
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(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.
| 8. |
This
Agreement may not be assigned by the Manager without the prior written
approval of the Company.
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| 9. |
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.
|
| 10. |
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.
|
2
| 11. |
(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.
| 12. |
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
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0000
Xxxxxx xx xxx Xxxxx, Xxxxx 0000
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Xxx
Xxxxxxx, XX 00000
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Attention:
Xxxxxx Xxxxx
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To
the Company:
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XXXX
ACQUISITION II, INC.
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0000
Xxxxxx xx xxx Xxxxx, Xxxxx 0000
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Xxx
Xxxxxxx, XX 00000
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Attention:
Xxxxxxx Xxxxx
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or
such
other addresses as the respective parties may in writing to the other
designate.
| 13. |
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.
|
3
| 14. |
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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| 15. |
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. The terms and provisions of this Agreement may be modified
or
amended only by written agreement executed by all parties hereto.
The
terms and provisions of this Agreement may be waived, or consent
for the
departure therefrom granted. No such waiver or consent shall be deemed
to
be or shall constitute a waiver or consent with respect to any other
terms
or provisions of this Agreement, whether or not similar. Each such
waiver
or consent shall be effective only in the specific instance and for
the
purpose for which it was given, and shall not constitute a continuing
waiver or consent.
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| 16. |
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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| 17. |
This
Agreement shall be governed by the laws of the State of
California.
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[Signature
Page Follows]
4
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 | |
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By:
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/s/
Xxx Xxxx
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Name:
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Xxx
Xxxx
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Title:
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Managing
Member
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By:
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/s/
Xxxxxxx Xxxxx
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Xxxxxxx
Xxxxx
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Title:
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CFO
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