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EXHIBIT 10.3
Doc 3/
ref.: MS/MANAGEMENT.WIS
MANAGEMENT AGREEMENT
The undersigned:
1. the closed corporation EUROMED EUROPE B.V., with registered office in
Oosterhout, legally represented in this matter by its statutory
director B.V. Wisteria, (hereafter called: "EuroMed B.V.");
2. the closed corporation B.V. WISTERIA, with registered office in
Arnhem, legally represented in this matter by its statutory director,
Pantapharma B.V. (hereafter called: "Wisteria");
3. a. the closed corporation GALENICA B.V., with registered office
in Bilthoven, legally represented in this matter by its
statutory director, B.V. Wisteria, (hereafter called:
"Galenica");
b. the closed corporation CONFEDERA B.V., with registered office
in Oosterhout, legally represented in this matter by its
statutory director, B.V. Wisteria, (hereafter called:
"Confedera");
Parties numbered 3.a. and 3.b. hereafter also indicated as: "the
Corporations"
TAKING INTO CONSIDERATION:
a. EuroMed B.V., as 100% subsidiary of the corporation under the laws of
the state of Nevada, United States, EUROMED INC.("EuroMed"), is the
Netherlands holding company of EuroMed's operating companies;
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b. EuroMed B.V. holds 100% of the shares in Confedera and Galenica and
100% of the shares in the closed corporation Mutarestes B.V.
("Mutarestes"), which corporation in turn holds 100% of the shares in
Pluripharm International B.V. ("Pluripharm"), which corporation in
turn holds 100% of the shares in Financieringsmaatschappij De Nieuwe
Wereld ("DNW");
c. Confedera, Galenica, and Pluripharm are the operating companies within
the EuroMed group which engage in the wholesaling of medicines;
d. EuroMed B.V. wishes to ensure, by entering into management agreements,
that executives are available who are responsible for the daily
management of its operating companies during a specified time;
e. In that connection, Wisteria is prepared and able to fulfill this need
for the benefit of Confedera and Galenica, by making a qualified
executive available to Confedera and Galencia on the following
conditions;
HAVE AGREED AS FOLLOWS:
Article 1 Activities
1.1 For the duration of this agreement (the "Agreement"), Wisteria shall
make a manager available to the Corporations, i.e. Xx. X. X. Xxxxxx
(hereafter called: "Manager"). The Corporations state that they agree
to this Manager and to let him perform the activities which are
specified in the Agreement.
1.2 In the event that the Manager, for whatever reason, cannot perform his
activities, Wisteria can propose a replacement manager to the
Corporations. The Corporations shall inform Wisteria within one week
in writing whether they agree to the proposed replacement.
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1.3 If it should be necessary for the Corporations' conduct of business,
EuroMed B.V. shall consult with Wisteria if it is of the opinion that
the nature of the Manager's activities should be adjusted.
1.4 In view of the fact that the Manager is made available to the
Corporations by Wisteria, the parties recognize expressly that the
Manager is not in the employ of the Corporations, nor can be
considered in any manner as an employee of the Corporations.
1.5 For the performance of its activities, Wisteria shall be named a
statutory director of the Corporations and during the duration of this
Agreement shall continue to function as a statutory director of the
Corporations. With regard to its activities as statutory director,
Wisteria shall be represented by the Manager, or by his replacement.
1.6 The Corporations pledge to grant to the Manager that authority and
cooperation which are required for the proper performance of his
activities.
Article 2 Compensation
2.1 The Corporations shall compensate Wisteria for its activities together
in total f 200,000 per year, excluding value added tax. The
Corporations shall pay the compensation in four equal installments per
year. Wisteria shall send an invoice to the Corporations once per
quarter in which the activities of the Manager are also explained. The
Corporations shall pay the invoice within 30 days.
It shall be further agreed among EuroMed B.V. and the Corporations, to
which of the Corporations the payment obligations arising from the
Agreement shall be charged.
2.2 Wisteria shall see to strict compliance with all obligations incumbent
upon it with regard to value added tax and with regard to payroll tax
and social insurance premiums relating to the Manager. Wisteria shall
indemnify the Corporations with regard to all possible
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claims by the tax authorities and/or the trade association against the
Corporations in the event that they should take the position that the
Corporations have a withholding or payment obligation with regard to
the Manager for payroll tax and/or social insurance premiums,
including increases, fines and interest.
2.3 If the Manager for whatever reason, during a period longer than two
weeks, cannot perform any activities for the Corporations and no
appropriate replacement is provided, the Corporations shall be
released from their obligation for payment of the compensation,
effective the third week, for the duration of the default, with the
exception of compensation for reasonably incurred expenses which have
occurred despite the absence of the Manager and which can no longer be
reversed, provided these expenses fall within the ordered activities.
Article 3 Duration of the Agreement
3.1 The Agreement shall take effect retroactively as of 1 January 1996 for
a period of 5 years and shall therefore terminate by operation of law
on 31 December 2000, without a requirement for any further action of
the parties.
3.2 Extension of the Agreement shall only be possible if the parties
decide on it in writing.
3.3 EuroMed B.V. and Wisteria can each cancel the Agreement in the
interim, with observance of a notice period of 6 months. Cancellation
shall occur by means of a registered letter addressed to the
management of the other party.
3.4 The Agreement can be cancelled with immediate effect if:
a. Wisteria or one of the Corporations is declared bankrupt or if
suspension of payment is granted to Wisteria or one of the
Corporations;
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b. the Manager dies, is declared bankrupt or the Manager is
granted suspension of payment or, in the event of illness or
otherwise during a period of three consecutive months, the
Manager is not able, for more than thirty-five days, to
fulfill the obligations of article 1 and the Corporations have
not accepted Wisteria's offer pursuant to article 1.2.
3.5 Wisteria and the Corporations shall have the authority to dissolve the
Agreement if a party to the Agreement does not comply with, or comply
with on time, or properly comply with, an obligation from the
Agreement.
Article 4 Liability
4.1 Wisteria and the Manager shall not be liable to the Corporations, as
well as to third parties, for damage which arises from the action or
failure to act of the Manager, performed within the formal sphere of
his authority, without prejudice to liability which arises from the
intentional or gross fault of Wisteria and/or the Manager.
4.2 The Corporations release Wisteria and the Manager in the event of
liability of Wisteria and/or the Manager to third parties for actions
or failure to act of the Manager, performed within the formal sphere
of his authority, unless the liability arises from the intentional or
gross fault of Wisteria and/or the Manager.
Article 5 Competition clause
5.1 Neither Wisteria nor its direct or indirect shareholder shall, during
the period from the effective date of the Agreement until five years
after the termination of the Agreement, conduct any activity, direct
or indirect, by means of a legal entity or otherwise, alone or in
cooperation with others, within the Benelux, which in any manner could
be in competition with the activities of the Corporations, other than
activities with regard to having pharmacies. Neither Wisteria nor its
direct or indirect shareholder shall make any
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investments in competing companies. Interests existing at the time of
entering into this Agreement can be maintained.
5.2 Upon violation of the competition clause in article 5.1, Wisteria
shall owe a fine of f 1,000,000 per violation, with an increase of f
10,000 per day that the violation continues after notice of default.
The Manager shall be jointly and severally liable with Wisteria for
this fine.
Article 6 Confidentiality requirement
6.1 Wisteria shall observe strict confidentiality during the period of the
Agreement and thereafter regarding all that which it shall learn
regarding the business and interests of the Corporations and the
companies connected with the Corporations, including particularly (but
not limited to) knowledge regarding the pricing used by the
Corporations and discounts and relationships with customers.
6.2 Wisteria shall be required to impose this confidentiality requirement
upon the Manager and his replacements unabridged.
6.3 Regardless of the manner in which this Agreement is terminated,
Wisteria shall return all property of the Corporations to the
Corporations, including (but not limited to) all data carriers,
copies, books and documents which contain data from the Corporations.
Article 7 Obligation of the Manager
7.1 Wisteria shall guarantee that the provisions of articles 5, 6 and 8
shall be correspondingly applicable to the Manager. As a sign of his
agreement to be bound by these articles, the Manager shall co-sign the
Agreement.
Article 8 Intellectual property
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8.1 The intellectual property rights with regard to new products developed
during the period of the Agreement by or in cooperation with the
Corporations shall rest with the Corporations and, insofar as
necessary, Wisteria shall transfer these unconditionally to the
Corporations and they shall be unconditionally accepted by the
Corporations.
8.2 Wisteria shall not in any manner, directly or indirectly, by means of
legal entities or otherwise, make use of the industrial property
rights which have been in the past or are now used by the Corporations
for the conduct of the Corporations' business.
Article 9 Invalid provisions
9.1 If one or more articles of the Agreement should be invalid or in
another manner not binding, the validity of the remaining articles of
the Agreement shall not thereby be affected. The parties shall then
adjust the Agreement in mutual consultation in the sense that the
non-binding articles shall be replaced by other provisions which
differ as little as possible from the relevant non-binding articles.
Article 10 Applicable law and choice of forum
Netherlands law shall be applicable to the Agreement. Any dispute which shall
arise from the Agreement shall be subject exclusively to judgment by the
authorized court in the District of Arnhem.
Article 11 Supplementary clauses
11.1 The Corporations accept joint and several liability for the payment
obligations of the Corporations under the Agreement.
11.2 In the performance of the management activities, the reasonable
interests of the other operating companies of EuroMed B.V. will
continually be observed, such that the
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activities to be performed in respect of the Agreement shall not be
damaging to the other operating companies.
11.3 a. The Manager shall agree to consult regularly, but at least
once a month, with the management of Mutarestes, Pluripharm
and De Nieuwe Wereld regarding the state of affairs within the
Corporations and the policy to be carried out regarding the
Corporations.
11.3 b. Wisteria shall annually, at the latest on 1 December of a
fiscal year, develop a business plan in consultation with and
for the approval of the management of Mutarestes, Pluripharm
and De Nieuwe Wereld, in which the commercial objectives for
the Corporations for the following fiscal year shall be
established (the "Business Plan").
11.3 c. During a fiscal year, Wisteria shall carry out the management
and policy with regard to the Corporations as much as possible
in accordance with the Business Plan.
11.3 d. If and insofar as Wisteria notices that the actual
developments of the Corporations are going to deviate from the
Business Plan, Wisteria shall notify the management of
Mutarestes, Pluripharm and De Nieuwe Wereld of this as quickly
as possible. Then, in mutual consultation, measures to be
taken shall be decided on and, if necessary, the Business Plan
for the relevant year shall be modified.
11.4 Manager accepts that, with regard to the actions named below
concerning the Corporations, the express approval of the management of
Mutarestes, Pluripharm and De Nieuwe Wereld shall be required:
a. any substantial and/or fundamental change in the conduct of
business of the relevant Corporation, such as change in the
distribution and/or production strategy;
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b. contracting with or dismissal of employees, or the adjustment
or changing of conditions of employment, other than providing
for the replacement of existing employees;
c. changing of bank relationships or of the conditions thereof
which have already been entered into by the relevant
corporation;
d. entering into transactions which exceed the amount of f
100,000;
e. settling any claim which exceeds the amount of f 30,000;
f. acquiring or disposing of investments in other corporations.
g. ending this Management Agreement in the manner stated in
article 3.3.
11.5 EuroMed B.V. agrees not to make any change in the statutory management
of the Corporations during the period of this Agreement.
11.6 EuroMed B.V. agrees, in its capacity of sole shareholder of the
Corporations, that this Agreement shall be signed on behalf of the
Corporations by their statutory director Wisteria.
Drawn up and signed in duplicate in Amsterdam on 5 July 1996.
1. EUROMED EUROPE B.V.
[signature]
(B.V. Wisteria)
2. B.V. WISTERIA
[signature]
(X. X. Xxxxxx)
3.a. GALENICA B.V.
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[signature]
(B.V. Wisteria)
3.b. CONFEDERA B.V.
[signature]
(B.V. Wisteria)
For articles 5.1, 5.2, 6, 8, 11.2, 11.3 and 11.4:
[signature]
X. X. Xxxxxx
EuroMed, Inc. guarantees the compliance with this Agreement by EuroMed B.V. and
by the Corporations.
[signature]
(EuroMed, Inc.)
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