Exhibit 7.8
MANAGEMENT AGREEMENT
This Management Agreement (this "Agreement") is made to be effective as
of October 25, 2001, by and between Fidelity National Information Solutions,
Inc., a Delaware corporation ("FNIS"), and XxxxXxxxxxx.xxx, Inc., a Nevada
corporation (the "Company").
Recitals
A. The parties hereto have entered into that certain Asset Purchase
Agreement dated October 25, 2001 (the "Purchase Agreement"). All capitalized
terms not otherwise ascribed a meaning herein shall have the meanings ascribed
such defined terms as set forth in the Purchase Agreement.
B. The Purchase Agreement contemplates that the parties enter into
this Agreement pursuant to which FNIS shall manage the Business from the
Effective Date until terminated as provided herein.
C. FNIS has employees with substantial expertise in the Business.
D. The Company desires to engage the services of certain FNIS
employees set forth on Exhibit A hereto (the "Management Team") to operate and
---------
manage the Business in a manner consistent with the terms and conditions of this
Agreement, and FNIS desires to cause the Management Team to provide such
services to the Company.
E. For and in consideration of the mutual covenants and agreements
set forth herein and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto, intending to be legally bound,
covenant and agree as follows.
Agreement
1. General Management and Operations. Subject to the terms hereof,
during the term of this Agreement the Management Team shall manage all aspects
of the Business, including the day-to-day operations. Notwithstanding the
foregoing, (i) the Management Team shall report to the Board of Directors of the
Company (the "Board") and shall perform such duties as reasonably assigned by
the Board from time to time, subject to the terms and conditions of the Purchase
Agreement, and (ii) the business and affairs of the Company as a whole shall be
managed and all corporate powers shall be exercised under the ultimate direction
of the Board. If any proposed action of any member of the Management Team
requires, under applicable state law or this Agreement, the approval of the
Board, such proposed action shall be promptly submitted for approval to the
Board, and in the absence of such approval the proposed action shall not be
undertaken.
2. Services. The Management Team shall manage all services and
support incidental to or required in connection with the operations of the
Business, which services will generally include, without limitation,
administration, management, financial services, MLS real estate services,
purchasing, accounts payable, accounts receivables, information technology,
employee compensation and benefits, human resources and record keeping
(collectively, the "Services").
3. Expense Reductions. The Management Team and the Company shall
use best efforts to prepare an expense reduction plan for the Business as soon
as reasonably practicable following the date of this Agreement (the "Plan"). The
Plan will be prepared by the parties in good faith and in the best interests of
the Business and the Company, taking into account the interests of FNIS under
the Purchase Agreement. The Management Team and the Company shall use best
efforts to begin implementing the Plan no later than November 2, 2001.
4. Management Fee. In consideration for the Services, the Company
shall pay FNIS a management fee equal to $1,000 per month during the term of
this Agreement, which amount shall be pro-rated for any partial month.
5. Term and Termination.
(a) Term. The term of this Agreement shall begin on the date
hereof and continue until the earlier to occur of: (i) the Closing, or (iii) the
termination of the Purchase Agreement.
(b) Early Termination for Cause. Upon the occurrence of a
material failure by either party to perform any of its respective covenants or
obligations set forth in this Agreement, which failure continues for a period of
ten (10) business days after written notice thereof from the non-breaching
party, the non-breaching party shall be entitled to terminate this Agreement
immediately upon written notice to the breaching party.
(c) Termination by FNIS without Cause. FNIS may terminate
this Agreement at any time, with or without cause, upon five (5) days written
notice thereof to the Company.
6. Management Team. FNIS may, with notice to the Company, add
members to or remove members from the Management Team or increase the size of
the Management Team.
7. Independent Contractor. FNIS acknowledges and agrees that it
will cause the Management Team to perform the Services on an independent
contractor basis, and that neither FNIS nor the Management Team is an agent of
the Company nor has the authority to bind the Company. Notwithstanding the
foregoing, the Management Team may, in the course of the performance of the
Services as approved and supervised by the Board, act on behalf of the Company
as necessary to cause the Services to be performed. FNIS shall be solely
responsible for all employee matters concerning the members of the Management
Team, including without limitation hiring, firing, compensating and insuring
such members, and shall be legally liable for any claims brought against the
Management Team on an employer liability basis not arising directly from the
performance of the Services in accordance with this Agreement.
8. Remedies. In addition to any remedies provided herein, the
parties hereto shall have all other remedies permitted in law or in equity under
the laws of the State of California and the laws of the United States for any
breach by the other party of the terms and conditions hereof.
9. Limitations on Liability; Indemnification.
2
(a) The members of the Management Team shall have no
liability to the Company under this Agreement. FNIS shall have no liability to
the Company under this Agreement for any act or failure to act by the members of
the Management Team in connection with the provision of the Services under this
Agreement, unless such act or failure to act constitutes gross negligence,
recklessness or intentional misconduct or bad faith.
(b) The Company shall indemnify, hold harmless and provide a
defense to FNIS, its affiliates and each member of the Management Team against
all claims, costs, demands, damages, losses, expenses or liabilities to or as a
result of claims asserted by persons or entities not a party to this Agreement,
resulting from or arising out of the provision by any member of the Management
Team of the Services; provided, however, that the Company shall not so indemnify
FNIS or any member of the Management Team against any such claim, cost, demand,
damage, loss, expense or liability arising out of or resulting in any material
respect from FNIS's or such Management Team member's gross negligence,
recklessness or intentional misconduct or bad faith or FNIS's material breach of
this Agreement.
(c) FNIS shall indemnify, hold harmless and provide a
defense to the Company and its affiliates against all claims, costs, demands,
damages, losses, expenses or liabilities to or as a result of claims asserted by
persons or entities not a party to this Agreement resulting from or arising out
of or resulting in any material respect from FNIS's or any Management Team
member's gross negligence, recklessness or intentional misconduct or bad faith
or FNIS's material breach of this Agreement.
10. Assignment. No party to this Agreement may assign all or any
part of its interest in this Agreement without the prior express written consent
of the other party, which consent shall not be unreasonably withheld.
11. Invalidity. Wherever possible, each provision of this Agreement
shall be interpreted in such a manner as to be valid under applicable law, but
if any provision of this Agreement shall be invalid or prohibited hereunder,
such provision shall be ineffective to the extent of such prohibition or
invalidation, but shall not invalidate the remainder of such provision or the
remaining provisions of this Agreement.
12. Notices. All notices shall be in writing and shall be sent by
(i) personal delivery; (ii) first class mail, postage prepaid; (iii) national
overnight courier, or (iv) telecopier, with written confirmation sent via any of
the methods set forth in preceding clauses (i) through (iii). Notice shall be
deemed given on the day such notice is delivered to the recipient or, with
respect to any mailing, three days after such notice is deposited in the mail.
Unless otherwise specified by a notice to the parties hereto, all notices shall
be given or made upon the parties hereto at the address set forth below:
If to the Company: XxxxXxxxxxx.xxx, Inc.
_____________________________
_____________________________
Attn: Xxxxxx Xxxxxxx
Fax: _____________________________
3
If to FNIS: Fidelity National Information Solutions, Inc.
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx
Fax: (000) 000-0000
13. Arbitration. In the event of any dispute, claim question or
disagreement arising out of or relating to this Agreement or the breach thereof,
the parties hereto shall use their best efforts to settle such disputes, claims,
questions or disagreements. To this effect, the parties shall consult and
negotiate with each other, in good faith and, recognizing their mutual interest,
attempt to reach a just and equitable solution satisfactory to both parties. If
they do not reach such a resolution within a period of sixty (60) days, then
upon notice of either party to the other, disputes, claim, questions or
differences shall be finally settled by arbitration in Santa Barbara, California
pursuant to the rules of the American Arbitration Association except as
otherwise provided herein. In rendering any award, the arbitrator shall
determine the rights and obligations of the parties according to substantive and
procedural laws of Delaware. Any provision or remedy that would be available by
a court of law shall be available from the arbitrator to the parties, pending
arbitration. The parties may apply to any court having jurisdiction hereof and
seeking injunctive relief so as to maintain the status quo until such time as
the arbitration award is rendered or the controversy is otherwise resolved. The
arbitrators will be selected from the panel of persons having experience with
and knowledge of the real estate transaction industry. Parties hereto agree that
no one may disclose the existence, content, or results of any arbitration
hereunder without the prior written consent of all the parties. The parties
shall each bear their own costs and expenses in connection with arbitration.
14. Entire Agreement. This Agreement contains the entire agreement of
the parties hereto with respect to the matters set forth herein, and supersedes
all prior arrangements and understandings between the parties, and no other
agreement, statement, or promise made by either party hereto which is not
contained herein shall be binding or valid.
15. Amendment. This Agreement may only be amended by written document
signed by each of the parties hereto.
16. Counterparts. This Agreement shall be executed simultaneously or in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
17. Governing Law. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of California.
18. Headings. The headings or captions of sections in this Agreement
are for convenience and reference only and in no way define, limit, or describe
the scope or intent of this Agreement or the provisions of such sections.
4
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
The "Company"
XxxxXxxxxxx.xxx, Inc., a Nevada corporation
By: ____________________________________________
Its: ____________________________________________
"FNIS"
Fidelity National Information Solutions, Inc., a
Delaware corporation
By: ____________________________________________
Its: ____________________________________________
5
EXHIBIT A
---------
Members of Management Team
Xxxxx Xxxxxx
Xxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
