EXHIBIT 10.10
ADMINISTRATIVE SERVICES AGREEMENT
This ADMINISTRATIVE SERVICES AGREEMENT ("Agreement") is entered into as of
April__, 1998 by and between XXXXXX CORPORATION, a Delaware corporation
("Xxxxxx"), and OMEGA PROTEIN CORPORATION, a Nevada corporation ("Protein").
R E C I T A L S:
A. Prior to execution of this Agreement, Protein was a wholly-owned
subsidiary of Xxxxxx.
B. Protein has completed on this date the issuance of new shares in an
initial public offering (the "IPO") and Xxxxxx has sold in such IPO a portion of
the shares of Protein that it owned reducing Xxxxxx'x ownership of Protein's
outstanding common stock to approximately 66.2% of Protein's outstanding common
stock (or 62.1% of Protein's outstanding common stock if the underwriters
exercise their over-allotment options).
C. During the last three years, Xxxxxx relied on Protein for the provision
of certain administrative services.
X. Xxxxxx and Protein have agreed that, following the IPO, Protein will
continue to provide services to Xxxxxx pursuant to the terms of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual agreements contained
herein, the parties hereby agree as follows:
1. SERVICES. Protein will provide the services described on Exhibit A to
Xxxxxx and may, in its sole discretion, provide such other services as Xxxxxx
may request from time to time (all such services referred to herein as the
"Services"). The Services shall include those rendered to majority-owned
subsidiaries of Xxxxxx (other than Protein), whether now existing or hereafter
becoming subsidiaries. Xxxxxx may, upon reasonable notice to Protein, from time
to time, delete from the Services, prospectively, any category listed on Exhibit
A or thereafter added, or any reasonably determined subcategory thereof.
2. FEES AND EXPENSES.
(a) Xxxxxx will pay Protein fees ("Fees") for the Services provided by
Protein to Xxxxxx hereunder equal to Protein's cost of providing such Services,
as reasonably determined by Protein. Such Fees will include an allocation of
Protein's general and administrative overhead expense relating to such Services.
Protein may, but shall not be obligated to, determine such cost using the same
methods employed by Protein to allocate costs to Xxxxxx for such Services prior
to the IPO.
(b) Xxxxxx will reimburse Protein for any reasonable and necessary
out-of-pocket expenses incurred in connection with the provision of the
Services, including any taxes or other governmental impositions attributable to
the provision of the Services (other than income or other similar taxes assessed
on the Fees). Protein will not have any obligation to advance funds on behalf of
Xxxxxx.
(c) Protein will invoice Xxxxxx for the Fees and expenses due hereunder
at the intervals determined by Protein from time to time. All invoices will be
due and payable within five (5) calendar days after the date of the invoice.
3. INFORMATION AND RECORDS.
(a) Xxxxxx will make available to Protein on a timely basis all
information which is reasonably necessary for Protein to provide the Services.
(b) Protein will maintain records with respect to the Services which are
substantially similar to those maintained with respect to similar Services
provided for its own account, and will provide those records to Xxxxxx upon
termination of this Agreement.
4. LIABILITY.
(a) Protein makes no express or implied warranty with respect to the
Services.
(b) Protein will be liable to Xxxxxx for any Loss (hereinafter defined)
suffered by Xxxxxx during the term of this Agreement as a result of acts or
omissions of Protein or any stockholder, director, officer or employee of
Protein or any attorney, accountant, representative or agent retained by Protein
("Associates") in connection with the Services provided only if and to the
extent that (i) the acts or omissions constitute gross negligence or willful
misconduct or willful disregard of instructions or directions provided by Xxxxxx
as contemplated in Section 6, (ii) the acts or omissions would be covered by
Protein's insurance coverage under crime, fidelity or fiduciary insurance (if
any). In any event, except to the extent covered by Protein's crime, fidelity or
fiduciary insurance, (i) any claim for damages from Protein in connection with a
Service provided will be limited to the amount of Fees charged with respect to
the Service, and (iii) Protein will not be liable to Xxxxxx for any incidental
or consequential damages, lost profits or opportunities, or exemplary or
punitive damages.
As used herein, "Loss" means any and all claims, liabilities,
obligations, losses, deficiencies and damages or judgments of any kind or nature
whatsoever incurred by the person seeking recovery of such Loss and arising
from, asserted against, or associated with the furnishing or failure to furnish
the Services, regardless of by whom asserted and regardless of whether or not
any such loss is known or unknown, fixed or contingent or asserted or unasserted
incurred by Protein in connection with the provision of the Services.
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5. INDEMNITY. Except as provided in Section 4(b), Xxxxxx will indemnify
Protein and its Associates and hold Protein and its Associates harmless from any
and all Losses arising from, asserted against or associated with the provision
of Services by Protein to Xxxxxx.
6. AUTHORITY. In providing the Services, Protein may take such actions,
make such decisions and exercise such judgement on behalf of Xxxxxx as Protein
may deem appropriate and necessary unless Xxxxxx gives Protein prior written
notice that it should consult with particular officers or employees of Xxxxxx
prior to taking such actions, making such decisions or exercising such
judgement. In matters as to which Xxxxxx provides instructions or directions as
to matters requiring decision or the exercise of judgment, Protein shall follow
such instructions or directions.
7. FORCE MAJEURE. Protein will not be liable to Xxxxxx for any failure to
comply with this Agreement caused, directly or indirectly, by (a) a fire, flood,
explosion, riot, rebellion, revolution, labor trouble (whether or not due to the
fault of such Party), requirements or acts of any government authority or agency
or subdivision thereof, loss of source of supplies or other inability to obtain
materials or suppliers, or (b) any other cause, whether similar or dissimilar to
the foregoing, beyond the reasonable control of the parties hereto.
8. TERM. This Agreement, and Protein's obligation to provide Services
hereunder, shall continue until Xxxxxx gives Protein five (5) days advance
written notice or upon written notice from Protein to Xxxxxx if Xxxxxx
materially breaches this Agreement and fails to cure such breach within thirty
(30) days after receiving written notice thereof from Protein. Any outstanding
Fees and expenses as well as Xxxxxx'x obligation to indemnify Protein shall
survive the termination of this Agreement indefinitely.
9. NOTICES. All notices, demands, requests, or other communications which
may be or are required to be given, served, or sent by a party pursuant to this
Agreement will be in writing and will be (a) personally delivered, (b) mailed by
first class, registered or certified mail, return receipt requested, postage
prepaid, (c) sent by an internationally recognized express delivery service or
(c) transmitted by facsimile, address as follows:
(i) if to Protein:
Omega Protein Corporation
0000 Xx. Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. xxx Xxxxxxxxx III,
Chief Executive Officer and President
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(ii) if to Xxxxxx:
Xxxxxx Corporation
0000 Xx. Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx, Chief Executive Officer
with a copy to:
Xx. Xxxxx Xxxxxx
00 Xxxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Each party may designate by notice in writing a new address or facsimile
number to which any notice may be given, served or sent. Each notice will be
deemed sufficiently given, served, sent or received when it is delivered to the
addressee, with an affidavit of personal delivery, the return receipt, the
delivery receipt or when delivery is refused by the addressee. Each notice or
other communication sent by facsimile will be deemed sufficiently given only if
a copy of the notice or communication is immediately sent by one of the methods
specified in (a), (b) or (c) above.
10. MISCELLANEOUS.
(a) This Agreement sets forth the entire agreement of the parties with
respect to the Services and supersedes all previous agreements, understandings
or negotiations with respect to the Services.
(b) The rights and obligations set forth in this Agreement may be
amended, modified or supplemented only by a writing signed by each party.
(c) A party may waive a right under this Agreement only by a written
waiver signed by the party. No failure to exercise or delay in exercising a
right under this Agreement will constitute a waiver of that right.
(d) If any provision of this Agreement is found invalid, illegal or
unenforceable, the provision will be ineffective only to the extent of the
invalidity, illegality or unenforceability, and the other provisions of this
Agreement will remain in full force and effect.
(e) A party may not assign its rights, and a Party may not delegate its
obligations, under this Agreement unless it first obtains the written consent of
the other party, which may be withheld at the other party's discretion,
provided, however, that Protein may assign its rights to any wholly-owned
subsidiary of Protein without Xxxxxx'x consent, provided that no such assignment
to a subsidiary shall relieve Protein of its obligations hereunder.
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(f) Except as permitted under Subsection (e), this Agreement will not
inure to the benefit of any Person other than the Parties.
(g) This Agreement will be governed by and construed and enforced in
accordance with the internal laws of the State of Delaware.
(h) This Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on their behalf as of the date first above written.
XXXXXX CORPORATION
By:
------------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
OMEGA PROTEIN CORPORATION
By:
------------------------------------
Name: Xxxxxx X. xxx Xxxxxxxxx III
Title: Chief Executive Officer and President
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EXHIBIT A
DESCRIPTION OF SERVICES
A. Accounting:
1. Maintain a general ledger.
2. Furnish general bank account checks and reconcile general bank
account.
3. Process vendor invoices and employee expense reports approved by
Xxxxxx for payment.
4. Input accounts receivable in accordance with instructions from Xxxxxx
personnel; post cash receipts; provide A/R aging as requested (not
more often than once per week).
5. Maintain fixed asset records (acquisition-disposal-depreciation
schedules).
6. Provide project profit and cost accounting statements.
7. Provide quarterly financial information for use by Xxxxxx personnel in
preparing quarterly financial statements; bonus calculations; trial
balance; and financial statements.
B. Securities and Investor Relations Matters
1. Prepare documents required to be filed by Xxxxxx under the Securities
Exchange Act of 1934 and the New York Stock Exchange.
2. Public relations, including coordinating analyst calls and preparing
and distributing press releases.
C. Payroll:
1. Maintain employee data base and input payroll information.
2. Distribute payroll checks.
D. Tax:
1. Prepare and file all state and federal income and sale/use tax returns
with a due date during the term of this Agreement.
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E. Benefits:
1. Administer Profit Sharing Plan and Pension Plan.
2. Administer health and medical benefits plans
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