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EXHIBIT 10.12
MANAGEMENT AGREEMENT
This AGREEMENT made and entered into as of the 1st day of January
1996, between FAMOUS DAVE'S OF MINNEAPOLIS, INC., a Minnesota corporation
("Manager"), and FAMOUS DAVE'S ENTERPRISES, INC., a Minnesota corporation (the
"Owner"), which owns and operates a barbecue restaurant in Hayward, Wisconsin
(the "Restaurant").
I. GENERAL
1. The Owner hereby retains the Manager for the purpose of
rendering management and administrative services needed for the operation of
the Restaurant on the basis hereinafter set forth.
2. The Manager shall perform all services described herein for
the account of and as agent of the Owner. All such services shall be rendered
subject to the control of the Owner, which shall have final authority in all
matters relating to the Restaurant's operations. The Manager shall use
reasonable judgment in discharging its duties hereunder.
II. MANAGEMENT SERVICES
1. At Owner's request, Manager agrees to provide the following
consulting services and management advice to Owner in connection with the
operation of the Restaurant, in the same manner as is customary and usual in
the operation of comparable facilities, and to consult with the Owner and keep
the Owner advised as to all major policy matters affecting the Restaurant.
2. Services specified in subparagraph 1 include, but are not
limited to, advice and consultation relating to the following:
A. Licensure of the Restaurant with the proper agencies,
including the filing of any required local, state and federal reports;
B. The purchase by the Owner of hazard, liability and
other necessary insurance coverage for the Restaurant;
C. Review of the Owner's personnel requirements,
consulting with the Owner as to personnel needs and hiring personnel;
D. Establishment of staffing schedules, wage structures
and personnel policies for all personnel;
E. Purchase or lease by the Owner of all food, beverages,
supplies and equipment used in the operation of the Restaurant;
F. Day-to-day operations of the Restaurant to ensure the
operations are conducted in a businesslike manner;
G. Developing an ongoing advertising and promotion
program;
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H. Preparation of budgets and operation plans for the
Restaurant;
I. Accounting and record keeping, internal control,
inventory control, and all other financial controls relating to
Restaurant operation.
3. The Manager is not authorized to make purchases and enter into
contracts relating to the affairs of the Restaurant.
III. ACCOUNTING AND BOOKKEEPING SERVICES
Manager shall perform the following accounting and bookkeeping
services in connection with the operation of the Restaurant:
A. Receipt for and deposit in a special bank account
selected by the Owner, separate from all other monies of the Manager,
all funds received from the operation of the Restaurant and supervise
the disbursement of such funds for the operating expenses of the
Restaurant;
B. Maintain the books of account, including all journals and
ledgers, check register and payroll records;
C. Process vendors' invoices and other accounts payable;
D. Prepare payroll checks from time sheet summaries prepared
under the Manager's supervision;
E. Prepare payroll and supervise preparation of Owner's tax
returns;
F. Prepare monthly bank reconciliations; and
G. Prepare monthly operating statements in accordance with
generally accepted accounting principles and provide them to the
Owner.
IV. FEE FOR SERVICE
1. Except as provided herein, the Manager shall be reimbursed on
a monthly basis for its reasonable direct out-of-pocket expenses incurred in
connection with the service prorated hereunder, including legal, accounting,
travel, lodging and meal expenses. The Manager shall prepare an itemization of
such costs on a monthly basis which shall be submitted to the Owner by the 15th
of the subsequent month. The books and records of the Manager pertaining to
the services provided hereunder shall be reasonably available to the Owner and
its authorized agents for verification of reimbursed costs.
2. The Owner shall pay the Manager for the services rendered
hereunder a fee equal to 3% of the gross food sales of the Restaurant per month
(the "Service Fee"), payable on the 15th day of the following month.
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V. TAX PARTNERSHIP
The Manager and the Owner affirmatively state that they do not have
the intention to form a joint venture or partnership, nor have they done so.
The Manager is an independent contractor for the Owner, and no employee or
agency relationship shall exist.
VII. TERM
The initial term of this Agreement shall be one year. Either party
shall have the option to extend the term of this Agreement for additional
one-year renewal terms on the same terms and conditions contained herein if a
party gives the other party written notice of its election so to extend at
least 30 days prior to the termination of the original or any renewal term and
shall continue indefinitely thereafter until terminated by either party as set
forth herein.
VIII. TERMINATION
Notwithstanding any provision hereof to the contrary, the Owner or the
Manager shall have the right to terminate this Agreement:
A. by the Owner, on 60 days' advance written notice, in the
event the Manager ceases to be an affiliate of the Owner;
B. by the Company, on 60 days' advance written notice, if
the Owner sells or otherwise transfers ownership of the Restaurant to a
non-affiliated party;
C. by either party without cause after the initial and
renewal terms, on 30 days' prior written notice; or
D. by either party at any time for cause, if such cause has
a material adverse effect on the Restaurant, upon 30 days' prior
written notice to the other party, unless such cause is cured as
provided herein. Such notice shall describe in detail the basis upon
which the terminating party believes such termination is justified.
Upon receipt of such notice, the other party shall immediately commence
to attempt to cure and shall have 30 days during which to attempt to
cure any alleged default under this Agreement, and upon such cure being
effected, the terminating party's rights to terminate shall cease, and
this Agreement will continue in full force and effect. Furthermore, if
the Manager has diligently attempted to effect such a cure within such
30-day period but cannot complete such cure because of the failure of a
third party (such as a governmental agency) to act within such period,
then the Manager shall have a reasonable time beyond such 30-day
period, not to exceed an additional 90 days, to complete its cure of
the alleged basis for the Owner's election to terminate. In addition,
either party may terminate this Agreement by notice to the other party
upon such other party's filing of a voluntary petition in bankruptcy,
making of an assignment for the benefit of creditors, adjudication as a
bankrupt or insolvent, filing of a petition or answer seeking for
itself a reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any statute, law or
rule, seeking or consenting to or acquiescence in the appointment of a
trustee, receiver or liquidator for all or any part of the party's
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assets or ceasing to be a going concern. For purposes of this Agreement,
"cause" shall be gross negligence, malfeasance or breach of this Agreement.
VI. NOTICES
All notices permitted or required by this Agreement shall be deemed
given when in writing and delivered personally or deposited in the United
States mail, postage prepaid, return receipt requested, addressed to the other
party at the address set forth below or such address as the party may designate
in writing:
To Manager: Famous Dave's of Minneapolis, Inc.
7016 Antrim Road
Edina, MN 55439
To Owner: Famous Dave's Enterprises, Inc.
Route 5, Box 5167
Hayward, WI 54843
VIII. MISCELLANEOUS
1. Section headings are for convenience of reference only and
shall not be used to construe the meaning of any provision of this Agreement.
2. This Agreement may be executed in any number of counterparts,
each of which shall be an original, and all of which shall together constitute
one agreement.
3. Should any part of this Agreement be invalid or unenforceable,
such invalidity or unenforceability shall not affect the validity and
enforceability of the remaining portions.
4. Each individual signing this Agreement warrants that such
execution has been duly authorized by the party for which he is signing. The
execution and performance of this Agreement by each party has been duly
authorized by all applicable laws and regulations and all necessary corporate
action, and this Agreement constitutes the valid and enforceable obligation of
each party in accordance with its terms.
5. The Manager shall not assign this Agreement other than to an
affiliate corporation or other entity controlled by the Manager. Affiliate
shall mean any person directly or indirectly controlling, controlled by or
under common control with the applicable party.
6. This Agreement shall be construed in accordance with the laws
of the State of Minnesota.
7. This Agreement may not be modified except in writing executed
by the party to be charged.
8. This Agreement constitutes the entire agreement of the parties
hereto and supersedes all prior agreements and representations with respect to
the subject matter hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
MANAGER:
FAMOUS DAVE'S OF MINNEAPOLIS, INC.
By:__________________________
Name:
Title:
OWNER:
FAMOUS DAVE'S ENTERPRISES, INC.
By:__________________________
Name:
Title:
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