EXHIBIT 10.10
TERMINATION OF MANAGEMENT AGREEMENT
This TERMINATION OF MANAGEMENT AGREEMENT (this
"Termination") is made as of November 15, 1999 (the "Effective
Date"), by and between FOODMASTER INTERNATIONAL L.L.C., a
Delaware limited liability company ("Company"), and DEVELOPED
TECHNOLOGY RESOURCE, INC., a Minnesota corporation ("Manager").
PRELIMINARY STATEMENT
The Company and Manager are parties to that certain Amended
and Restated Management Agreement dated as of September 11, 1998,
(the "Management Agreement"). The Manager was responsible for
the operations, planning and day to day management functions of
the Company pursuant to the Management Agreement and that certain
Amended and Restated Limited Liability Company Agreement of the
Company dated September 11, 1998 (the "Operating Agreement").
Pursuant to Section 16, the Management Agreement may be
terminated upon the mutual agreement of the Company and the
Manager.
AGREEMENT
The Company and the Manager hereby agree as follows:
Section 1. Termination. The Management
Agreement is hereby terminated effective as of the date hereof.
Section 2. Counterparts. This Termination may
be executed in one or more counterparts, each of which shall be
deemed an original.
Section 3. Binding Effect. This Termination
shall be binding upon and inure to the benefit of the Company and
the Manager and their respective successors and assigns,
including, without limitation, any United States trustee, any
debtor-in-possession or any trustee appointed from a private
panel.
Section 4. General Release. Except as may be otherwise
provided herein, the Manager, on behalf of itself and its heirs,
successors and assigns, and the Company, on behalf of itself and
its heirs, successors and assigns, hereby fully and forever
release and discharge the other party to this Termination and its
respective, subsidiaries, affiliates, divisions, successors and
assigns, together with their respective officers, directors,
agents and employees, from any and all claims, fees, demands,
rights, liens, agreements, contracts, covenants, actions, suits,
causes of action, obligations, debts, costs, expenses, attorneys'
fees, damages, judgments, orders or liabilities of any kind or
nature, in law, equity or otherwise, whether now known or
unknown, suspected or unsuspected, which the releasing party now
owns or holds or has at any time heretofore owned or held as
against the other party to this Termination, arising out of or in
any way connected with the duties of the parties hereto under the
Management Agreement, or the termination of the same, or any
other transactions, occurrences, acts of omissions or any loss,
damage or injury whatsoever, known or unknown, suspected or
unsuspected, resulting from any act or omission by or on the part
of the parties hereto committed or omitted prior to the date of
this Agreement, including, but not limited to any and all claims
for attorneys' fees and costs under any statute, regulation, or
judicial precedent that shifts responsibility to either of the
parties hereto for payment of attorney's fees and costs in
litigation arising out of the Management Agreement.
Section 5. Certain Costs and Expenses.
(a) The Manager shall be entitled to reimbursement by
the Company for all of the costs and expenses incurred by
the Manager for the performance of its duties under the
Management Agreement up to and including the Effective Date.
The manner and amount of such reimbursement shall be
governed by the applicable provisions of the Management
Agreement. The Manager hereby covenants and agrees to
provide the Company with a statement of all such costs and
expenses within sixty (60) days after the date hereof, and
the Company agrees to pay any undisputed costs and expenses
within thirty (30) days of receipt of the statement. The
Company hereby agrees to provide the Manager with written
notice of any reasonable objection to any of the costs and
expenses contained in such statement within fifteen (15)
days of receipt of the statement, which notice shall include
a specific description of any disputed cost or expense. Any
disputed amount shall be deposited in escrow according to
terms and conditions mutually agreeable to the parties
hereto, and each of the Company and the Manager hereby
covenant and agree to use their best efforts to resolve any
such dispute in a timely manner.
(b) In addition to the costs and expenses payable by
the Company to the Manager pursuant to Section 5(a) of this
Termination, the Company hereby agrees that, if the Manager
is required to terminate the existing employment agreement
between the Manager and Xxxxx Xxxxxxx or Xxxxx Xxxxxxxx (the
"Employment Agreement") as a result of this Termination, the
Company will reimburse the Manager for certain termination
expenses which may become due and payable after the
Effective Date. Any amounts paid by the Manager to Xxxxx
Xxxxxxx or Xxxxx Xxxxxxxx as a xxxxxxxxx payment, including
travel expenses, pursuant to the terms of the Employment
Agreement shall be subject to the reimbursement requirement
of this Section 5(b). The Manager will provide the Company
with a written statement which shall include an itemized
list of the severance expenses, and the Company agrees pay
the Manager an amount equal to the undisputed amount of the
severance expenses within thirty (30) days of receiving such
statement Any disputes with respect to such reimbursement
shall be settled in the manner provided for in Section 5(a)
of this Termination. The Manager acknowledges and agrees
that the obligation of the Company to reimburse the Manager
for the severance expenses contemplated in this Section 5(b)
shall in no manner whatsoever constitute an assumption by
the Company of any of the obligations or other liabilities
of the Manager with respect to the Employment Agreement,
including, without limitation, any claim, damages or other
liability of the Manager which may arise under the
Employment Agreement in addition to the obligation of the
Manager to provide a severance payment.
Section 6. Operating Agreement. As of the Effective
Date, the Operating Agreement shall be terminated and replaced by
the Second Amended and Restated Operating Agreement of the
Company, dated as of the date hereof, and all of the rights,
duties and obligations of the Manager, as a member of the
Company, shall be governed thereby.
Section 7. Governing Law. This Agreement is entered
into and executed in, and shall be construed in accordance with
the internal laws of the State of Delaware, USA, without regard
to the application and effect its conflict of laws principles.
Section 8. Entire Agreement. This Agreement constitutes
the entire agreement concerning the Manager's employment and
termination and all other matters addressed herein. This
Termination supersedes and replaces all prior and contemporaneous
negotiations and all agreements proposed or otherwise, whether
written or oral, concerning all subject matter covered herein.
Section 9. Severability. If one or more of the
provisions of this Termination shall for any reason be held
invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect or
impair any other provisions of this Termination, but this
Termination shall be construed as if such invalid, illegal or
unenforceable provision had not been contained herein.
Section 10. No Admission. The parties are entering into
this Termination solely to effectuate a mutually acceptable
termination of the Management Agreement. The parties do not
believe that they have done anything wrong, and the fact that
they are entering into this Termination should not be understood
as an admission by either of the parties hereto that they have
violated the respective rights of the other party in any manner
whatsoever, or the rights of any third party.
The Company and the Manager have entered into this
Termination as of the date first above written.
FOODMASTER INTERNATIONAL L.L.C., a
Delaware limited liability company
By:
Name:
Title:
DEVELOPED TECHNOLOGY RESOURCES,
INC., a Minnesota corporation
By:
Name:
Title:
WRITTEN CONSENT OF THE MEMBERS
OF
FOODMASTER INTERNATIONAL L.L.C.
The undersigned, being all of the members of FOODMASTER
INTERANTIONAL L.L.C., a Delaware limited liability company (the
"Company"), acting pursuant to Section 18-302 (d) of the Delaware
Limited Liability Company Act, hereby adopt the following
resolutions by written consent:
RESOLVED, that the Company, through its Board of Directors,
is hereby authorized to terminate that certain Amended and
Restated Management Agreement (the "Management Agreement"), dated
September 11, 1998, by and between the Company and the Developed
Technology Resources; and further
RESOLVED, that Xxxxxx X. Xxxxxx is hereby authorized to
execute such documents and take such other and further actions as
may be required to carry out the termination of the Management
Agreement; and further
RESOLVED, that all actions of the Board of Directors of the
Company related to said transaction are hereby ratified,
confirmed and adopted.
ADOPTED as of the 15th day of November, 1999.
DEVELOPED TECHNOLOGY RESOURCE,
INC., a Minnesota corporation
By:
Name:
Title:
API DAIRY PARTNERS L. P., a
Delaware limited partnership
By: C.I.S. Management Company,
L.L.C., a Delaware limited
liability company
By:
Name:
Title:
AGRIBUSINESS PARTNERS INTERNATIONAL
X.X. XX, a Delaware limited
partnership
By: C.I.S. Management Company,
L.L.C., a Delaware limited
liability company
By:
Name:
Title:
