Termination Agreement
Exhibit 10.4
Xxxx 0, 0000
Xxxxxxx, Xxxxxxxx & Rice, LLC
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Amended and Restated Consulting Agreement (the “Consulting Agreement”), dated as of November 23, 2009, among US Foods Holdings Corp. (formally known as USF Holding Corp.) (the “Parent”), US Foods, Inc. (formally known as U.S. Foodservice, Inc.) (the “Company”), a wholly owned subsidiary of the Parent, and Xxxxxxx, Dubilier & Rice, LLC. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Consulting Agreement.
Upon the terms and conditions of this letter agreement, the parties hereby agree to terminate the Consulting Agreement pursuant to Section 13 thereof, in connection with the Company’s initial public offering of shares of its common stock pursuant to the Company’s Registration Statement on Form S-1 (Registration No. 333-209442) (the “IPO”). In connection with and as consideration for such termination, the Company agrees to pay in cash a fee of $15,330,135.51 million to Xxxxxxx, Dubilier & Rice, LLC (the “Termination Fee”) on the closing date of the Company’s IPO and, in consideration thereof, Xxxxxxx, Dubilier & Rice, LLC will waive any right to any Transaction Fee in connection with the IPO. Upon the payment of the Termination Fee, the Consulting Agreement will terminate, provided that Sections 3 and 4 thereof shall survive solely as to any portion of any Transaction Fee accrued, but not paid or reimbursed, prior to such termination. The termination of the Consulting Agreement shall not affect the Indemnification Agreement which shall survive such termination.
This letter agreement may be executed in any number of counterparts, with each executed counterpart constituting an original, but all together one and the same instrument. This letter agreement sets forth the entire understanding and agreement among the parties with respect to the transactions contemplated herein and supersedes and replaces any prior understanding, agreement or statement of intent, in each case written or oral, of any kind and every nature with respect hereto. This letter agreement is governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within that state.
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If the foregoing is in accordance with your understanding and agreement, please sign and return this letter agreement, whereupon this letter agreement shall constitute a binding agreement with respect to the matters set forth herein.
| Sincerely, | ||
| US FOODS HOLDING CORP. | ||
| /s/ Xxxxxxxx Xxxxx | ||
| Name: | Xxxxxxxx Xxxxx | |
| Title: | Executive Vice President, General Counsel and Chief Compliance Officer | |
| US FOODS, INC. | ||
| /s/ Xxxxxxxx Xxxxx | ||
| Name: | Xxxxxxxx Xxxxx | |
| Title: | Executive Vice President, General Counsel and Chief Compliance Officer | |
| Acknowledged and agreed as of the date first above written: | ||
| XXXXXXX, DUBILIER & RICE, LLC | ||
| /s/ Xxxxxxx X. Xxxx | ||
| Name: | Xxxxxxx X. Xxxx | |
| Title: | Vice President, Treasurer & Assistant Secretary | |
[Signature Page to Letter Agreement Terminating CD&R Consulting Agreement]
