EXHIBIT 10.4
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into
effective January 1, 1999, by and between ▇▇▇▇▇▇▇▇ INTERNATIONAL LTD., INC., a
Florida corporation with its principal place of business in Sanford, Florida
("▇▇▇▇▇▇▇▇ International"), and LUIGINO'S, INC., a Minnesota corporation with
offices in Duluth, Minnesota and Sanford, Florida ("Luigino's").
WITNESSETH THAT:
WHEREAS, Luigino's is engaged in the business of manufacturing,
distributing and selling frozen entrees and frozen pizza and snack products;
WHEREAS, the employees of ▇▇▇▇▇▇▇▇ International have for many years been
directly involved with the business of manufacturing, distributing and selling
frozen foods and frozen snacks; and
WHEREAS, Luigino's is desirous of obtaining ▇▇▇▇▇▇▇▇ International's
services in an advisory capacity for a period of seven years following the
effective date of this Agreement, and ▇▇▇▇▇▇▇▇ International is willing to agree
to render consulting services to Luigino's for such five-year period as
hereinafter set forth;
NOW, THEREFORE, it is hereby agreed by the parties hereto as follows:
1. Consulting Services. Luigino's hereby retains ▇▇▇▇▇▇▇▇ International as
a consultant and ▇▇▇▇▇▇▇▇ International hereby agrees to accept such retainer,
upon the terms and conditions hereinafter set forth, for a period of seven years
from and after the date of this Agreement. During such seven-year period,
▇▇▇▇▇▇▇▇ International shall render services of an advisory or consultive
nature, including, without limitation, operational, marketing and financial and
tax advice, upon reasonable request by Luigino's and at times mutually agreeable
to the parties, so that Luigino's may have the benefit of ▇▇▇▇▇▇▇▇
International's business experience and knowledge of the frozen entree and
frozen pizza and snack businesses. ▇▇▇▇▇▇▇▇ International agrees to make its
personnel and services available for advice and counsel to Luigino's upon
reasonable request at mutually agreeable times, by telephone, letter or in
person; however, Luigino's acknowledges that ▇▇▇▇▇▇▇▇ International is engaged
in other businesses and has other commitments, and Luigino's agrees to use its
best efforts to avoid scheduling conflicts with ▇▇▇▇▇▇▇▇ International's other
activities.
2. Compensation for Consulting Services. As compensation for ▇▇▇▇▇▇▇▇
International's agreement to render the consulting services provided for under
paragraph 1,
Luigino's shall pay to ▇▇▇▇▇▇▇▇ International fees in accordance with Schedule A
hereto, as the same may be amended from time to time with the mutual consent of
the parties hereto.
3. Reimbursement of Expenses. In addition to the amount referred to in
Section 2, Luigino's agrees to reimburse ▇▇▇▇▇▇▇▇ International for any
out-of-pocket expenses, including without limitation, travel, entertainment,
telephone and miscellaneous expenses, incurred by ▇▇▇▇▇▇▇▇ International in the
performance of such consulting services, upon presentation by ▇▇▇▇▇▇▇▇
International of proper vouchers therefor.
4. Other Activities. It is understood and agreed by Luigino's that during
the seven-year consulting period hereunder, ▇▇▇▇▇▇▇▇ International may
participate in any other business activity or endeavor so long as such
participation does not materially interfere with its duties to Luigino's under
this Agreement and ▇▇▇▇▇▇▇▇ International agrees to use its best efforts to
avoid scheduling conflicts with Luigino's.
5. Release of Liability. Luigino's understands and agrees that the services
of ▇▇▇▇▇▇▇▇ International hereunder are of a general advisory nature and that
Luigino's is under no obligation whatsoever to follow any advice from ▇▇▇▇▇▇▇▇
International. Luigino's hereby forever releases ▇▇▇▇▇▇▇▇ International and its
officers, directors, shareholders, employees and agents and agrees to hold each
of them harmless from and against any damages whatsoever that may occur as a
result of advice given to Luigino's by ▇▇▇▇▇▇▇▇ International or any of such
officers, directors, shareholders, employees and agents or the failure of
▇▇▇▇▇▇▇▇ International to advise Luigino's of any matter hereunder.
6. Termination. After January 1, 2001, this Agreement may be terminated by
either party hereto upon ninety (90) days advance written notice, such
termination to be effective at the end of such ninety (90) days or such earlier
or later date as is agreed to by the parties (the "Termination Date"). If this
Agreement is terminated by Luigino's, there shall be payable to ▇▇▇▇▇▇▇▇
International on the Termination Date an amount equal to a percentage of the
aggregate fees paid or payable to ▇▇▇▇▇▇▇▇ International for the twelve (12)
month period immediately preceding the Termination Date determined as follows:
(i) Termination Date on or before December 31, 2002 - 100%
(ii) Termination Date from January 1, 2003 to December 31, 2003 - 75%
(iii) Termination Date from January 1, 2004 to December 31, 2004 - 50%
(iv) Termination Date after December 31, 2004 - 0%
7. Waiver of Breach. A waiver by either party of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach thereof.
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8. Assignment. The rights and obligations of Luigino's under this Agreement
shall be binding upon and inure to the benefit of the successors and assigns of
Luigino's. The rights and obligations of ▇▇▇▇▇▇▇▇ International under this
Agreement are personal to it and may not be assigned by it.
9. Entire Agreement. This Agreement contains the entire agreement between
the parties hereto pertaining to the rendition of services by ▇▇▇▇▇▇▇▇
International to Luigino's. This Agreement may be altered or amended only by an
instrument in writing signed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
LUIGINO'S, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its Chairman & CEO
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▇▇▇▇▇▇▇▇ INTERNATIONAL LTD., INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its Owner
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SCHEDULE A
TO
CONSULTING AGREEMENT
Date: January 1, 1999
Amount of Annual Consulting Fee: $3,000,000
LUIGINO'S, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its Chairman & CEO
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▇▇▇▇▇▇▇▇ INTERNATIONAL LTD., INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Its Owner
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