EXHIBIT 10.3
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (the "Agreement") made this 13th day of August,
1997, between Brewing Ventures LLC, a Minnesota limited liability company
(hereinafter referred to as "Brewing Ventures") and Founders Food & Xxxxxxx
Ltd., a Minnesota corporation (hereinafter referred to as "Founders").
WITNESSETH
WHEREAS, Founders proposes to establish and own a restaurant and
microbrewery to be located at 000 Xxxx Xx. Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxxx
(such real property and improvements hereinafter referred to as the
"Restaurant");
WHEREAS, Founders desires to appoint Brewing Ventures, and Brewing Ventures
is willing to accept appointment, as Manager to manage and assist Founders in
the development of the concept for the Restaurant including, without limitation,
advice regarding the business and management of the Restaurant (the entire
business conducted at the Restaurant is hereinafter collectively referred to as
the "Business");
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Brewing Ventures and Founders hereby agree as
follows:
ARTICLE 1
APPOINTMENT OF BREWING VENTURES AS CONSULTANT
1.1 Founders hereby appoints and employs Brewing Ventures to consult regarding
the management of the Business including, without limitation, the
development of the concept for the Restaurant.
1.2 Except as otherwise provided herein, this Agreement shall commence on the
date hereof and shall terminate upon the merger or other acquisition of
Founders or its assets, or upon the first anniversary of the closing of a
public offering of Founders' Common Stock.
ARTICLE 2
SERVICES OF BREWING VENTURES FOR THE RESTAURANT
2.1 Brewing Ventures shall consult regarding the Restaurant in a manner
consistent with usual and customary standards therefor, as needed or
required by Founders.
ARTICLE 3
COMPENSATION OF BREWING VENTURES; RELATIONSHIP
3.1 In consideration for the services rendered by Brewing Ventures as provided
in Article II above, Founders agrees to pay Brewing Ventures on a monthly
basis, and as adjusted, a management fee equal to the greater of (A) one
percent (1%) of Founders' monthly gross sales (not to exceed $2,083.33 per
month) or (B) $2,083.33 per month.
3.2 The relationship created by this Agreement is that of principal (Founders)
and agent (Brewing Ventures). Nothing in this Agreement shall be construed
to create a partnership, joint venture, employment or other arrangement
between the parties, as Brewing Ventures is an independent contractor.
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ARTICLE 4
TERMINATION OF AGREEMENT
4.1 Except as otherwise expressly provided herein, neither party hereto may
terminate, modify or amend this Agreement without the prior written consent
of the other party.
4.2 In the event of a material breach of either party of a term of this
Agreement, the non-breaching party may terminate this Agreement upon thirty
(30) days' written notice to the other.
4.3 This Agreement shall in all events terminate upon the dates and events
described in Section 1.2 hereof.
4.4 In the event of a termination of this Agreement, Brewing Ventures shall be
relieved of any further obligations, duties or responsibilities hereunder
with respect to the Business.
ARTICLE 5
INDEMNIFICATION
5.1 Brewing Ventures shall indemnify and save Founders harmless from any
liability, loss, damage, cost, claim or expense incurred by reason of
Brewing Venture's employees, agents, officers and directors bad faith,
fraud, gross negligence, or their breach of any express provision of this
Agreement in the performance of their duties hereunder. Founders will
indemnify and hold Brewing Ventures harmless from and against any
liabilities, loss, claims, suits, damages, costs or expenses which are
incurred in connection with the Business, or which are incurred by Brewing
Ventures in the good faith performance of its duties hereunder, except to
the extent that the same was caused solely by the negligent acts or
omissions of Brewing Venture's employees, agents, officers or directors.
The indemnity provisions of this Article shall survive the termination of
this Agreement.
ARTICLE 6
ARBITRATION OF DISPUTES
6.1 Any disputes or controversies arising from or related to the performance,
breach, termination, expiration, application or meaning of this Agreement
shall be resolved by Brewing Ventures and Founders. To the extent that
Brewing Ventures and Founders are unable to resolve any such dispute or
controversy, Brewing Ventures and Founders shall submit such dispute or
controversy for arbitration before the American Arbitration Association in
Minneapolis, Minnesota, pursuant to such Association's rules for commercial
arbitration.
6.2 The decision of any arbitrator appointed pursuant to Section 6.1 shall be
final and binding upon both parties. Judgment on the award rendered by such
arbitrator may be entered in any court having jurisdiction thereof. In the
event of submission of any dispute to arbitration, each party shall, not
later than thirty (30) days prior to the date set for hearing, provide to
the other party and to the arbitrator a copy of all exhibits upon which the
party intends to rely at the hearing and a list of all persons whom each
party intends to call as witnesses at the hearing.
6.3 Founders and Brewing Ventures shall each select one independent arbitrator
expert in the subject matter of the dispute (the arbitrators so selected
shall be referred to herein as "Founders' Arbitrator" and "Brewing
Venture's Arbitrator," respectively). In the event that either party fails
to select an independent arbitrator as set forth herein within twenty (20)
days from delivery of a Notice of Arbitration, then the matter shall be
resolved by the arbitrator selected by the other party. Founders'
Arbitrator and Brewing Venture's Arbitrator shall select a third
independent arbitrator expert in the subject matter of the dispute, and the
three arbitrators so selected shall resolve the matter.
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ARTICLE 7
MISCELLANEOUS PROVISIONS
7.1 The titles to the several articles of this Agreement are inserted for
convenience only and are not intended to affect the meaning of any of the
provisions hereof.
7.2 This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of the respective parties hereto.
7.3 Brewing Ventures and Founders shall have no right to transfer or assign any
of their rights or obligations under this Agreement voluntarily, by
operation of law or otherwise, without the prior written consent of the
other.
7.4 This Agreement contains the entire agreement between the parties, and no
variations, modifications or changes herein or hereunder shall be binding
upon either party unless set forth in a document duly executed by or on
behalf of the parties.
7.5 This Agreement shall be construed and enforced in accordance with the laws
of the State of Minnesota without regard to conflicts of laws provisions
thereof.
ARTICLE 8
NOTICES
8.1 All notices, demands or requests provided or permitted to be given under
this Agreement shall be in writing and shall be sent by (a) certified or
registered mail, return receipt requested, postage prepaid, (b) national
prepaid overnight delivery service, (c) telecopy or other facsimile
transmission (followed with original copies to be sent by national prepaid
overnight delivery service), or (d) personal delivery with receipt
acknowledged in writing, as follows:
Founders Food & Xxxxxxx Ltd. Brewing Ventures LLC
0000 Xxxxx Xxxx Xxxx 0000 Xxxxx Xxxx Xxxx
Xx. Xxxxx Xxxx, XX 00000 Xx. Xxxxx Xxxx, XX 00000
All notices, demands and requests to be sent to either party or any
assignee of the interest of a party hereunder pursuant hereto shall be
deemed to have been properly given or served when actually received or
refused by the party to whom the same is directed (except to the extent
such notices, demands or requests are sent by certified or registered mail,
return receipt requested, postage prepaid, in which case such notice shall
be deemed given three (3) days after the date of mailing). Each party may
designate a change of address or supplemental address(es) by notice to the
other parties, given at least fifteen (15) days before such change of
address is to become effective.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first above written.
FOUNDERS FOOD & XXXXXXX LTD. BREWING VENTURES LLC
By /s/ Xxxxxx X. Xxxxxxxxx By /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxxxxxx
Its Chief Executive Officer Its Chief Manager
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