MANAGEMENT AGREEMENT
Management Agreement made as of this 14th day of March, 2000 (this
"Agreement") between Liberty Group Services, LLC, a Delaware limited liability
company ("Liberty"), and AskTheRobot, LLC, a New York limited liability company
(the "Company").
WHEREAS, the Company desires to retain Liberty to render certain
services to the Company with respect to the strategy of the Company and the
administration of the Company's business affairs, and the Company is willing to
render such services;
NOW, THEREFORE, the parties agree as follows:
1. Appointment. The Company hereby appoints Liberty to provide
management services to the Company to administrator its business affairs until
this Agreement is terminated by either party in accordance with the terms
hereof. Liberty accepts such appointment and agrees to render the services
herein described, for the compensation herein provided.
2. Duties. Liberty will provide implementation of the Company's
strategy as well as administer the Company's business affairs as requested by
the Company, and, in connection therewith, the Company will furnish to Liberty
and its affiliates, agents and representatives with office facilities and
utilities as well as with clerical, bookkeeping and recordkeeping services at
such office facilities, communications equipment and services including
telephone and telefax facilities, and computer equipment and services. The
services of Liberty to the Company under this Agreement are not to be deemed
exclusive, and Liberty will be free to render similar services to others.
3. Management Fee. For the services provided hereunder, the Company
shall pay Liberty a fee of $5,000 per month, payable in options to purchase
membership interests of the Company at a pre-money valuation of $6 million. Said
fee shall be payable for the term of this Agreement, provided, however, that
notwithstanding any termination of this Agreement prior to the anniversary date
hereof or any sale or merger or public offering of the Company during said
twelve (12) month period, said management fee (i.e., the right to purchase
equity interests in the Company) shall survive for not less than a 12-month
period (i.e., the right to purchase $60,000 worth of membership interests of the
Company at a pre-money valuation of $6 million).
4. Limitation of Liability. (a) None of Liberty or any of its
members, managers or their respective stockholders, controlling persons,
officers, directors, employees, representatives or agents or any of their
respective affiliates, employees, agents or principals (collectively, "Covered
Persons") will be liable to the Company for any act or omission taken or
suffered by such Covered Person in good faith and in the reasonable belief that
such act or omission is within the scope of authority granted to such Covered
Person by this Agreement; provided that such act or omission does not constitute
fraud, willful misfeasance, bad faith, or gross negligence by the Covered Person
in the conduct of the duties of the Covered Person ("Disabling Conduct").
(b) A Covered Person will incur no liability in acting upon any
signature or writing reasonably believed by him to be genuine, and may rely on a
certificate signed by an executive officer of any person in order to ascertain
any fact with respect to such person or within such person's knowledge and may
rely on an opinion of counsel selected by such Covered Person with respect to
legal matters unless such Covered Person engaged in Disabling Conduct. Each
Covered Person may act directly or through its agents or attorneys. Each Covered
Person may consult with counsel, appraisers, engineers, accountants and other
skilled persons of its choosing, and will not be liable for anything done,
suffered or omitted in good faith in reasonable reliance upon the advice of such
persons unless such Covered Person engaged in Disabling Conduct. No Covered
Person will be liable to the Company for any mistake of fact or judgment by the
Covered Person in conducting the affairs of the Company or otherwise acting in
respect of and within the scope of this Agreement unless such person engaged in
Disabling Conduct.
5. Confidentiality. (a) Liberty hereby severally covenants and
agrees that Liberty and each of its officers, directors, members, employees,
agents and representatives shall retain in strict confidence, and shall not use
for any purpose whatsoever, or divulge, disseminate or disclose to any third
party (other than in furtherance of the business purposes of the Company or as
may be required by law) all proprietary or confidential information relating to
the Company's business, including, without limitation, financial information,
development plans, pricing information, business methods, management information
systems and software, customer lists, supplier lists, leads, solicitations and
contacts, know-how, show-how, inventions, techniques, improvements,
specifications, trade secrets, agreements, research and development, business
plans and marketing plans of the Company, whether or not any of the foregoing
are copyrightable or patentable.
(b) If Liberty breaches, or threatens to commit a breach of,
any of the provisions of this Section 5, then the Company shall have the
following rights and remedies, each of which rights and remedies shall be
independent of the other and severally enforceable, and all of which rights and
remedies shall be in addition to and not in lieu of, any other rights and
remedies that are available at law or in equity:
(i) The right and remedy to have the covenants
contained herein specifically enforced by any court having equity jurisdiction,
it being acknowledged and agreed that any such breach or threatened breach will
cause irreparable injury to the Company and that money damages will not provide
an adequate remedy to the Company; and/or
(ii) The right and remedy to declare a material
default of this Agreement by Liberty and to recover damages therefor in
accordance with applicable law.
If any court determines that any of the covenants contained in this
Section 5, or any part thereof, is unenforceable because of, among other
reasons, the duration of such provision or the restrictive area covered thereby,
such court shall have the power to reduce the duration or restrictive area of
such provision and, in its reduced form, such provision will then be enforceable
and shall be enforced.
6. Indemnification. (a) The Company will, to the fullest extent
permitted by applicable law, indemnify and hold harmless each Covered Person
from and against all claims, liabilities and expenses of whatever nature, known
or unknown, liquidated or unliquidated ("Claims") relating to or arising from
activities undertaken in connection with the Company or otherwise relating to
this Agreement, including, but not limited to, amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and counsel fees and
expenses (all of such amounts are referred to as "Damages") incurred in
connection with the defense or disposition of any action, suit or other
proceeding (a "Proceeding"), whether civil or criminal, before any court or
administrative body in which such Covered Person may be or may have been
involved as a party or otherwise or with which such Covered Person may be or may
have been threatened, while acting as such Covered Person except with respect to
any matter as to which such Covered Person shall have engaged in Disabling
Conduct.
(b) Expenses incurred by a Covered Person in defense or settlement
of any Claim that may be subject to a right of indemnification hereunder may be
advanced by the Company prior to the final disposition thereof upon receipt of
an undertaking by or on behalf of the Covered Person to repay such amount if it
shall be determined ultimately that the Covered Person is not entitled to be
indemnified hereunder. The right of any Covered Person to the indemnification
provided herein shall be cumulative with, and in addition to, any and all rights
to which such Covered Person may otherwise be entitled by contract or as a
matter of law or equity and shall extend to such Covered Person's successors,
assigns and legal representatives.
(c) Promptly after receipt by a Covered Person of notice of the
commencement of any action or proceeding involving a Claim, such Covered Person
will, if a claim for indemnification in respect thereof is to be made against
the Company, give written notice to the Company of the commencement of such
action; provided that the failure of any Covered Person to give notice as
provided herein shall not relieve the Company of its obligations under this
Section 5, except to the extent that the Company is actually prejudiced by such
failure to give notice. In case any such action is brought against a Covered
Person, the Company will be entitled to participate in and to assume the defense
thereof to the extent that the Company may wish, with counsel reasonably
satisfactory to such Covered Person. After notice from the Company to such
Covered Person of the Company's election to assume the defense thereof, the
Company will not be liable for expenses subsequently incurred by such Covered
Person in connection with the defense thereof. The Company will not consent to
entry of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Covered Person of a release from all liability in respect to such claim or
litigation.
7. No Restriction on Activities. Nothing in this Agreement shall
limit or restrict the right of any member, employee, agent or officer of Liberty
to engage in any other business or to devote his time and attention in part to
the management or other aspects of any business, whether of a similar or
dissimilar nature, nor limit or restrict the right of Liberty to engage in any
other business or to render services of any kind to any other corporation, firm,
individual or association.
8. Termination. This Agreement shall continue in effect for as long
as the parties hereto mutually agree, until otherwise terminated in accordance
with the provisions hereof, provided, however, that the right of Liberty to
purchase membership interests in the Company for an exercise price of $60,000 at
a $6 million pre-money valuation shall continue in full force and effect
notwithstanding any termination of this Agreement.
9. Notices. Any notice or other communication required to be
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given pursuant to this Agreement shall be deemed duly given if delivered or
mailed by registered mail, postage prepaid, (1) to the Company at 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; or (2) to Liberty at 00 00xx Xxxxxx,
Xxxxxxxx, Xxx Xxxx 00000, and in either case, with a copy to Xxxxx Xxxxx,
Esq., at Xxxxxxx, Xxxxxxxxx LLP, 0 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
10. Amendments and Waivers. This Agreement may be amended by mutual
consent of the parties. Any amendment to this Agreement shall be in writing
signed by the parties hereto. No provision of this Agreement shall be deemed to
have been waived except if the giving of such waiver is contained in a written
notice given to the party claiming such waiver and no such waiver shall be
deemed to be a waiver of any other or further obligation or liability of the
party or parties in whose favor the waiver was given.
11. Counterparts. This Agreement may be executed in any number
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of counterparts, each of which will be deemed an original and all of which
taken together shall constitute a single instrument.
12. Headings. The headings of the sections of this Agreement
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are inserted for convenience only and shall not be deemed to constitute a
part hereof.
13. Successors and Assigns; Parties in Interest. This Agreement
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will inure to the benefit of and be binding upon the parties and to their
respective heirs, executors, administrators, successors and permitted
assigns.
14. Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction will, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction will not invalidate or render unenforceable
such provision in any other jurisdiction. To the extent permitted by applicable
law, the parties waive any provision of law that renders any provision hereof
prohibited or unenforceable in any respect. Notwithstanding the foregoing, if
any provision is so prohibited or unenforceable, the parties will, to the extent
lawful and practicable, use their best efforts to enter into arrangements to
effect the intent of such provision.
15. Governing Law. This Agreement will be governed by and
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construed in accordance with the laws of the State of New York.
16. Entirety of Agreement. This Agreement constitutes the
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entire agreement among the parties hereto with respect to the subject matter
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be executed by their duly authorized signatories below as of the day and year
first above written.
ASKTHEROBOT, LLC
By:
Xxxxxxx Xxxxx
By:
Xxxxxxx Xxxxxx
LIBERTY GROUP SERVICES, LLC
By Liberty Group Holdings, Inc.,
its Manager
By: _________________________
Name: Xxxxx Xxxx
Title: President
