EXHIBIT 10.33
TERMINATION OF AMENDED AND RESTATED MANAGEMENT AGREEMENT
THIS TERMINATION OF AMENDED AND RESTATED MANAGEMENT AGREEMENT (this
"Termination Agreement"), dated December 26, 2007 but effective for all
purposes as of November 30, 2007 (the "Termination Date"), is made by and
among AMERICAN TONERSERV CORP., a Delaware corporation ("ATS"), OPTIMA
TECHNOLOGIES, LLC, a Delaware limited liability company (the "Company"),
AZARIA MANAGEMENT GROUP, LLC (fka OPTIMA TECHNOLOGIES, L.L.C.), a Nevada
limited liability company ("Manager"), and XXXXXX X. XXXXXX ("Principal").
RECITALS
A. The parties have entered into that certain Amended and Restated
Management Agreement, dated as of August 13, 2007 (the "Agreement") whereby
Manager and Principal manage, on behalf of the Company, the print management,
printing supplies and repair services business the Company previously
purchased from Manager (the "Business") on the terms and conditions described
therein.
B. The parties desire to terminate the Agreement on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and mutual
covenants and conditions contained herein, the parties agree as follows:
AGREEMENT
1. Definitions. Any capitalized terms used but not otherwise defined
herein shall have the meanings ascribed thereto in the Agreement.
2. Termination of Agreement. Subject to satisfaction of all of the
terms and conditions contained herein, the Agreement is terminated effective
as of the Termination Date and thereafter be of no further force and effect,
other than as contemplated in Section 9 hereof.
3. Waiver of Notice. Manager and Principal hereby waive any notice
requirements and time periods contained in Section 7(a) of the Agreement.
4. Payments. On or before the Termination Date, the Company has paid
to Manager all amounts due under the Management Agreement, including all
deferred Management Fees and a termination fee of One Hundred Thousand
Dollars ($100,000). In addition:
(a) Additional Convertible Note. The Company and ATS shall deliver
to Manager a non-interest bearing Convertible Promissory Note (the
"Additional Convertible Note"), substantially in the form attached hereto as
Exhibit A, dated the Termination Date and made payable to Manager in the
principal amount of Four Hundred Fifty Thousand Dollars ($450,000).
(b) Modification of Prior Convertible Note. The Company, ATS and
Manager shall execute and deliver a Modification of Convertible Promissory
Note (the "Modified Convertible Note"), substantially in the form attached
hereto as Exhibit B, dated the Termination Date.
5. Acceleration of Option. ATS shall cause its Board of Directors to
fully accelerate the vesting of the option to purchase One Hundred Thousand
(100,000) shares of common stock of ATS that was granted to Xxxxx Xxxx in
connection with his employment with the Company.
6. Consulting Services; Transition Access. Provided that Xxxx Xxxxxxx
("Consultant") is employed by the Company or ATS, the Company shall cause
Consultant to provide services to Manager in on matters pertaining to Azaria
Management Group, LLC., Axon Technologies, Inc. and Optima HVAC LLC.
Consultant shall be available on an as-needed basis at such times as may be
mutually agreed upon, but in any event, not more than four (4) hours per week
(on a non-accrual basis), for a period not to exceed six (6) months. Manager
shall not be obligated to pay Consultant for such services. In addition, the
Company agrees to provide Manager reasonable access to service management,
purchasing and accounting personnel of the Company through December 31, 2007
to allow for a transition of such services from current Manager personnel to
newly hired employees provided such access shall not exceed five (5) hours
per week per employee.
7. Notice and Opportunity to Cure. Notwithstanding any other provision
of this Agreement or any other agreement between the parties hereto to the
contrary, Manager and Principal hereby agree that no default under any Azaria
Agreement (as defined below) shall be deemed to have occurred unless such
default remains uncured for ten (10) days following Manager and Principal
giving written notice of such default in the manner set forth in Section 9
hereof. As used in this Agreement, "Azaria Agreement" shall mean any
agreement or instrument between the parties to this Agreement, including,
without limitation, the Additional Convertible Note; the Modified Convertible
Note; that certain Letter Agreement, dated August 7, 2007, by and among the
parties hereto; that certain Amended and Restated Security Agreement, dated
as of August 13, 2007, by and between the Company and Manager; that certain
Secured Inventory Promissory Note, dated August 13, 2007, by the Company in
favor of Manager; and that certain Noncompetition, Nonsolicitation and
Nondisclosure Agreement, dated as of April 1, 2007, by and among the Company,
Manager and Principal.
8. Further Assurances. The parties shall execute such further
documents, and perform such further acts, as may be necessary to comply with
the terms of this Agreement and consummate the transaction contemplated
hereby. The parties also hereby agree to work together in good faith to
handle any other issues in connection with the transition of the operations
of the Business from Manager to the Company, or any other matters reasonably
related thereto.
9. Effect of Termination. The Agreement shall no longer be of any
force and effect, except that the Agreement will remain in full force and
effect with respect to the provisions contained in Sections 7(e), 8, 9, and
11 of the Agreement. Furthermore, but for Sections 7(e), 8, 9, and 11 of the
Agreement, the parties hereby mutually release, discharge and fully satisfy
any and all claims, actions, charges, causes of action and damages of any
kind whatsoever arising out of the Agreement that each now has or may
hereafter have, which arise out of the Agreement, and each do hereby fully
acknowledge to the other that each is fully released and discharged of any
such claims, actions, charges, causes of actions and damages of any kind as
of the Effective Date of this Agreement.
10. Notice. Any notice required or permitted under this Agreement or any
Azaria Agreement shall be given in writing and delivered as described herein.
A notice shall be deemed effectively given as follows: (i) upon personal
delivery; (ii) one (1) business day after transmission by electronic means,
provided such transmission is electronically confirmed as having been
successfully transmitted and a copy of such notice is deposited within 24
hours for either overnight delivery or for registered or certified mail, in
accordance with clause (iii) or (iv) below, respectively; (iii) one (1)
business day after deposit with a reputable overnight courier service,
prepaid for overnight delivery; or (iv) three (3) business days after deposit
with the United States Postal Service, postage prepaid, registered or
certified with return receipt requested. Addresses for notice shall be as
follows, or at such other address as such party may designate by ten (10)
days' advance written notice to the other parties:
If to Manager or Principal:
Azaria Management Group, LLC
(fka Optima Technologies, L.L.C.)
0000 Xxxxxx Xxxx
Xxxx Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
With a copy, which shall not constitute notice, to:
Johnson, Pope, Xxxxx, Xxxxxx and Xxxxx, LLP
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
If to the Company or ATS:
American TonerServ Corp.
000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, President and CEO
With a copy, which shall not constitute notice, to:
Xxxxxxxxx XxXxxxxxxx & Xxxxxx LLP
00 Xxxxx X Xxxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxx X. XxXxxxxxxx or Xxxxxxx X. (DJ) Xxxxxxx
11. Headings. The titles and subtitles used in this Termination
Agreement are used for convenience only and shall not be considered in
construing or interpreting this Termination Agreement.
12. Counterparts and Signature Pages. This Termination Agreement may be
executed in any number of counterparts, each of which shall be deemed to be
one and the same instrument. The exchange of copies of this Termination
Agreement and of signature pages by facsimile or other electronic
transmission shall constitute effective execution and delivery of this
Termination Agreement as to the parties and may be used in lieu of the
original Termination Agreement for all purposes. Signatures of the parties
transmitted by facsimile or other electronic means shall be deemed to be
their original signatures for all purposes.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Termination of
Amended and Restated Management Agreement effective as of the date first set
forth above.
ATS:
AMERICAN TONERSERV CORP.,
a Delaware corporation
By:/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President and CEO
COMPANY:
OPTIMA TECHNOLOGIES, LLC,
a Delaware limited liability company
By: AMERICAN TONERSERV CORP.,
a Delaware corporation
Its: Managing Member
By:/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President and CEO
MANAGER:
AZARIA MANAGEMENT GROUP, LLC,
(fka Optima Technologies, L.L.C.),
a Nevada limited liability company
By:/s/ Xxxxxx X. Xxxxxx, CEO
Xxxxxx X. Xxxxxx, CEO
PRINCIPAL:
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Exhibits:
A - Convertible Promissory Note
B - Modification of Convertible Promissory Note
