MANAGEMENT SERVICES AGREEMENT
Exhibit 10.1
This MANAGEMENT SERVICES AGREEMENT (this “Agreement”) is made and entered into this
17th day of March 2011 to be effective as of January 1, 2011 by and among Immediatek, Inc., a
Nevada corporation (the “Company” and together with its subsidiaries and successors, the
“Clients”) and Radical Ventures LLC, a Delaware limited liability company (together with
its successors, “Advisor”).
RECITALS
WHEREAS, the Clients have requested that Advisor continue to render management services,
including, among others, financial oversight and monitoring, technology and legal, to the Clients.
AGREEMENT
NOW, THEREFORE, in consideration of the services rendered, and to be rendered, by Advisor to
the Clients, and to evidence the obligations of the Clients to Advisor and the mutual covenants
herein contained, the Clients hereby jointly and severally agree with Advisor as follows:
1. Retention. The Clients hereby acknowledge that they have retained Advisor to, and
Advisor hereby acknowledges that, subject to reasonable advance notice in order to accommodate
scheduling, Advisor will, provide management services to the Clients as requested by their
respective board of directors during the Term (hereinafter defined).
2. Term. The term (the “Term”) of this Agreement shall continue until the
date on which Radical Holdings LP, its successors or their respective affiliates shall cease to
beneficially own, directly or indirectly, at least twenty percent (20%) of the then outstanding
voting power of the Company or its successors.
3. Compensation. As compensation for Advisor’s services to the Clients under this
Agreement, the Company hereby agrees to record $3,500 per month (the “Management Fee”),
prorated on a daily basis for any partial month, during the Term as a deemed contribution by
Radical Holdings LP to the Company. The Management Fee shall be recorded on the first day of each
calendar month (each a “Recording Date”), commencing with the date first above written.
4. Reimbursement of Expenses. In addition to the deemed contributions pursuant to
Section 3, the Company hereby agrees to record deemed contributions for all Reimbursable
Expenses (hereinafter defined) and attribute and allocate them to the appropriate Client. For
purposes of this Agreement, “Reimbursable Expenses” shall mean all reasonable disbursements and
out-of-pocket expenses, including, without limitation, costs of travel, postage, deliveries,
communications, fees and disbursements of counsel, but excluding allocated overhead, incurred by
Advisor or its affiliates for the account of any Client or in connection with the performance by
Advisor of the services contemplated in this Agreement. Upon presentment by Advisor of the
supporting documentation of the Reimbursable Expense reasonably requested by the Client, the
Company shall treat the Reimbursable Expense as a deemed contribution to the Company and attribute
and allocate it to the appropriate Client.
5. Termination of this Agreement. This Agreement may be terminated by (a) Advisor
upon thirty (30) days written notice for any or no reason whatsoever or (ii) the Clients upon
thirty (30) days written notice for gross negligence on the part of Advisor in the performance of
the obligations of Advisor as provided in this Agreement.
6. Indemnification. The Clients, jointly and severally, shall indemnify and hold
harmless each of Advisor, its affiliates and their respective directors, officers, stockholders,
partners, managers, members, employees, agents, representatives and each person who controls
Advisor or its affiliates within the meaning of the Securities Act of 1933, as amended, or the
Securities Exchange Act of 1934, as amended (collectively, “Indemnified Persons,” and,
individually, an “Indemnified Person”), from and against any and all claims, liabilities,
losses, damages and expenses incurred by an Indemnified Person (including, without limitation,
those arising out of an Indemnified Person’s negligence and reasonable fees and disbursements of
the respective Indemnified Person’s counsel) that (a) are related to, or arise out of, (i) actions
taken, or omitted to be taken (including, without limitation, any untrue statements made or any
statements omitted to be made) by any of the Clients or (ii) actions taken, or omitted to be taken,
by an Indemnified Person with any Client’s consent, in conformity with any Client’s instructions or
any Client’s actions or omissions or (b) are otherwise related to, or arise out of, Advisor’s
engagement, and will reimburse each Indemnified Person for all costs and expenses, including,
without limitation, fees and disbursements of any Indemnified Person’s counsel, as they are
incurred, in connection with investigating, preparing for, defending or appealing any action or
formal or informal claim, investigation, inquiry or other proceeding, whether or not in connection
with any pending or threatened litigation, caused by, arising out of or in connection with
Advisor’s acting pursuant to Advisor’s engagement, whether or not any Indemnified Person is named
as a party thereto and whether or not any liability results therefrom. None of the Clients will,
however, be responsible to any Indemnified Person for any claims, liabilities, losses, damages or
expenses pursuant to clause (b) of the immediately preceding sentence that have resulted primarily
from such Indemnified Person’s gross negligence or willful misconduct. The Clients also hereby
agree that no Indemnified Person shall have any liability to any Client for, or in connection with,
such engagement, except for any such liability for claims, liabilities, losses, damages or expenses
incurred by any Client that have resulted primarily from such Indemnified Person’s gross negligence
or willful misconduct. The Clients further hereby agree that none of them will, without the prior
written consent of Advisor, settle or compromise, or consent to the entry of any judgment in, any
pending or threatened claim, action, suit, inquiry or proceeding in respect of which
indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or
potential party to such claim, action, suit, inquiry or proceeding), unless such settlement,
compromise or consent includes an unconditional release of Advisor and each other Indemnified
Person hereunder from all liability arising out of such claim, action, suit, inquiry or proceeding.
EACH CLIENT HEREBY AGREES AND ACKNOWLEDGES THAT THE FOREGOING INDEMNITY SHALL BE APPLICABLE TO ANY
CLAIMS, LIABILITIES, LOSSES, DAMAGES OR EXPENSES THAT HAVE RESULTED FROM, OR ARE ALLEGED TO HAVE
RESULTED FROM, THE ACTIVE OR PASSIVE OR THE SOLE, JOINT OR CONCURRENT ORDINARY NEGLIGENCE OF
ADVISOR OR ANY OTHER INDEMNIFIED PERSON.
The foregoing right to indemnity shall be in addition to any rights that Advisor or any other
Indemnified Person may have at common law or otherwise and shall remain in full force and effect
following the completion or any termination of the engagement or this Agreement. Each Client
hereby consents to personal jurisdiction and to service of process and venue in any court in which
any claim that is subject to this Agreement is brought against Advisor or any other Indemnified
Person.
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The Clients hereby agree that this Section 6 shall be applicable, and enforceable with
respect, to any services provided by Advisor prior to the date first above written. It is
understood and agreed that, in connection with Advisor’s engagement, Advisor also may be engaged to
act for the Clients in additional capacities, and that the terms of any such additional engagements
may be embodied in one or more separate written agreements. This Section 6 shall apply to
the engagement specified in this Agreement, as well as to any such additional engagements (whether
written or oral) and any modification of this Agreement or such additional engagements and shall
remain in full force and effect following the completion or termination of this Agreement or such
additional engagements.
Each of the Clients further understands and agrees that if Advisor is asked to furnish any
Client a financial or legal opinion letter or act for any Client in any other formal capacity, such
further action shall be at the sole option of Advisor and may be subject to a separate agreement
containing provisions and terms to be mutually agreed upon.
7. Confidential Information. In connection with the performance of the services
hereunder, Advisor agrees not to divulge any confidential information, secret processes or trade
secrets disclosed by any Client or any of its subsidiaries to it solely in its capacity hereunder,
unless information, secret processes or trade secrets are publicly available or otherwise available
to Advisor without restriction or breach of any confidentiality agreement or unless required by any
governmental authority or in response to any valid legal process.
8. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement and understanding of
the parties in respect of the subject matter hereof and supersedes all prior understandings,
agreements or representations by or among the parties, written or oral, to the extent they relate
in any way to the subject matter hereof.
(b) Successors and Assigns. All of the terms, agreements, covenants, representations,
warranties and conditions of this Agreement are binding upon, inure to the benefit of and are
enforceable by the parties and their respective successors and permitted assigns.
(c) Notices. All notices, requests and other communications provided for, or permitted to be
given, under this Agreement must be in writing and shall be given by personal delivery, by
certified or registered United States mail (postage prepaid, return receipt requested), by a
nationally recognized overnight delivery service for next day delivery, or by facsimile
transmission, as follows (or to such other address as any party may give in a notice given in
accordance with the provisions hereof):
If to the Company:
Immediatek, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Chief Executive Officer
If to Advisor:
Radical Ventures LLC
0000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Immediatek, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Chief Executive Officer
If to Advisor:
Radical Ventures LLC
0000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
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All notices, requests or other communications will be effective, and deemed given, only as
follows: (i) if given by personal delivery, upon such personal delivery, (ii) if sent by certified
or registered mail, on the fifth (5th) business day after being deposited in the United
States mail, (iii) if sent for next day delivery by overnight delivery service, on the date of
delivery as confirmed by written confirmation of delivery, (iv) if sent by facsimile, upon the
transmitter’s confirmation of receipt of such facsimile transmission, except that if such
confirmation is received after 5:00 p.m. (in the recipient’s time zone) on a business day, or is
received on a day that is not a business day, then such notice, request or communication will not
be deemed effective or given until the next succeeding business day. Notices, requests and other
communications sent in any other manner, including by electronic mail, will not be effective.
(d) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW PRINCIPLES.
(e) Submission to Jurisdiction; Waiver of Jury Trial.
(i) Submission to Jurisdiction. Any action, suit or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this Agreement shall
only be brought in any federal court located in Dallas County, Texas or any Texas state court
located in Dallas County, Texas, and each party consents to the exclusive jurisdiction and venue of
such courts (and of the appropriate appellate courts therefrom) in any such action, suit or
proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it
may now or hereafter have to the laying of the venue of any such action, suit or proceeding in any
such court or that any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum. Process in any such action, suit or proceeding may be served on any
party anywhere in the world, whether within or without the jurisdiction of any such court. Without
limiting the foregoing, service of process on such party as provided in Section 8(c) shall
be deemed effective service of process on such party.
(ii) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES THAT ANY DISPUTE THAT MAY ARISE OUT OF OR
RELATING TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE,
SUCH PARTY HEREBY EXPRESSLY WAIVES ITS RIGHT TO JURY TRIAL OF ANY DISPUTE BASED UPON, OR ARISING
OUT OF, THIS AGREEMENT OR ANY OTHER AGREEMENTS RELATING HERETO OR ANY DEALINGS AMONG THEM RELATING
TO THE MATTERS CONTEMPLATED HEREIN. THE SCOPE OF THIS WAIVER IS INTENDED TO ENCOMPASS ANY AND ALL
ACTIONS, SUITS AND PROCEEDINGS THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT AND CONTEMPLATED
HEREBY, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS. EACH PARTY HEREBY REPRESENTS THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT IN THE
EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) SUCH PARTY
UNDERSTANDS, AND WITH THE ADVICE OF COUNSEL HAS CONSIDERED, THE IMPLICATIONS OF THIS WAIVER, (iii) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND
(iv) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND REPRESENTATIONS IN THIS SECTION 8(e).
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(f) Headings. The section headings contained in this Agreement are inserted for convenience
only and shall not affect in any way the meaning or interpretation of this Agreement.
(g) Amendments; Assignment. This Agreement may be amended only by a written instrument signed
by all the parties hereto. Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned without the prior written consent of all parties hereto; provided,
however, Advisor shall be entitled to assign this Agreement or any of its rights, interests or
obligations hereunder, either in whole or in part, to any one or more of its affiliates without the
prior written consent of the Clients.
(h) Extensions; Waivers. Any party may, for itself only, (i) extend the time for the
performance of any of the obligations of any other party under this Agreement, (ii) waive any
inaccuracies in the representations and warranties of any other party contained herein or in any
document delivered pursuant hereto or (iii) waive compliance with any of the agreements or
conditions for the benefit of such party contained herein. Any such extension or waiver will be
valid only if set forth in a writing signed by the party to be bound thereby. No waiver by any
party of any default, misrepresentation or breach of warranty or covenant hereunder, whether
intentional or not, may be deemed to extend to any prior or subsequent default, misrepresentation
or breach of warranty or covenant hereunder or affect in any way any rights arising because of any
prior or subsequent such occurrence. Neither the failure nor any delay on the part of any party to
exercise any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right or remedy preclude any other or further exercise of the
same or of any other right or remedy.
(i) Severability. The provisions of this Agreement will be deemed severable and the
invalidity or unenforceability of any provision will not affect the validity or enforceability of
the other provisions hereof; provided that if any provision of this Agreement, as applied to any
party or to any circumstance, is judicially determined not to be enforceable in accordance with its
terms, the parties agree that the court judicially making such determination may modify the
provision in a manner consistent with its objectives such that it is enforceable, and/or to delete
specific words or phrases, and in its modified form, such provision will then be enforceable and
will be enforced.
(j) Counterparts; Effectiveness. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original but all of which together will constitute
one and the same instrument. This Agreement will become effective when one or more counterparts
have been signed by each of the parties and delivered to the other parties. For purposes of
determining whether a party has signed this Agreement or any document contemplated hereby or any
amendment or waiver hereof, only a handwritten original signature on a paper document or a
facsimile copy of such a handwritten original signature shall constitute a signature,
notwithstanding any law relating to or enabling the creation, execution or delivery of any contract
or signature by electronic means.
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(k) Construction. This Agreement has been freely and fairly negotiated among the parties. If
an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if
drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring any party because of the authorship of any provision of this Agreement.
Any reference to any law will be deemed to refer to such law as in effect on the date hereof and
all rules and regulations promulgated thereunder, unless the context requires otherwise. The words
“include,” “includes,” and “including” will be deemed to be followed by “without limitation.”
Pronouns in masculine, feminine and neuter genders will be construed to include any other gender,
and words in the singular form will be construed to include the plural and vice versa, unless the
context otherwise requires. The words “this Agreement,” “herein,” “hereof,” “hereby,” “hereunder,”
and words of similar import refer to this Agreement as a whole and not to any particular
subdivision, unless expressly so limited. The parties intend that each representation, warranty
and covenant contained herein will have independent significance. If any party has breached any
covenant contained herein in any respect, the fact that there exists another covenant relating to
the same subject matter (regardless of the relative levels of specificity) that the party has not
breached will not detract from or mitigate the fact that the party is in breach of the first
covenant.
(l) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NO PARTIES
HERETO SHALL BE LIABLE FOR ANY LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
OR FOR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF,
OR IN CONNECTION WITH, THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY
OF LIABILITY BROUGHT (INCLUDING, WITHOUT LIMITATION, UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT
THEORY OF LIABILITY), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ADVISOR’S AGGREGATE LIABILITY FOR DIRECT DAMAGES
UNDER THIS AGREEMENT (CUMULATIVELY) SHALL BE LIMITED TO THE AMOUNTS DEEMED CONTRIBUTED TO THE
CLIENTS HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE TIME THAT THE CAUSE OF ACTION AROSE.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
| THE COMPANY: Immediatek, Inc., a Nevada corporation |
||||
| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | President | |||
| ADVISOR: Radical Ventures LLC, a Delaware limited liability company |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Vice President | |||
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