Exhibit 10.4
AGREEMENT
THIS AGREEMENT is made and entered into this 15th day of August 2001 by and
between ADM Tronics Unlimited, Inc. ("ADM") and Sonotron Medical Systems, Inc.
("SMS"), Vet-Sonotron Systems, Inc. ("VET"), Enviro-Pack Development Corporation
("Enviro"), AA Northvale Medical Associates, Inc. ("AAN"), Precision Assembly
Corporation ("PAC"), Pegasus Laboratories, Inc. ("PL") and Immuno-Therapy
Corporation ("ITC") (SMS, VET, Enviro, AAN, PAC, PL and ITC collectively
referred to herein as "The Subsidiaries").
WITNESSETH
WHEREAS, ADM is the parent corporation to The Subsidiaries and has been
providing numerous services to The Subsidiaries related to administrative,
marketing, sales, manufacturing and other functions since each individuals
subsidiary's inception, and
WHEREAS, in addition to the services ADM has allocated a portion of its real
property facilities to The Subsidiaries for use by The Subsidiaries for the
conduct of each of their respective businesses, and
WHEREAS, The Subsidiaries desire to have ADM continue to provide such services
and allocate a portion of its real property for The Subsidiaries and ADM is
desirous of continuing to provide such services and allocate such portion of its
real property to The Subsidiaries and to memorialize such agreement in a
writing.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
other good and valuable consideration the receipt and sufficiency is hereby
acknowledged, the parties hereto agree as follows:
1. ADM shall provide services to The Subsidiaries under the terms and
conditions hereafter recited. Such services shall include, but not be limited
to, managerial and administrative services; marketing and sales services;
clerical and communication services; maintaining a checking account for the
deposit of funds received and the writing of checks; maintaining accounting
records; and other services in the normal course of business (the "Services").
2. The Subsidiaries shall pay ADM for such Services on a monthly basis
pursuant to an allocation amount to be determined by ADM based upon a portion of
its applicable costs plus any direct invoices from third parties specific to a
particular subsidiary's activities. The schedule of such allocation shall be
adjusted monthly based upon a reasonable estimate of such allocation made by
ADM.
3. With respect to the use of real property, ADM shall determine the
amount of space allocated to each subsidiary on a monthly basis for both office
and non-office space and The Subsidiaries shall reimburse ADM for the lease
costs, real property taxes and related costs for such portion of both office and
non-office space.
4. The Subsidiaries confirm that this Agreement does not infer any
other relationship between ADM and The Subsidiaries and does not obligate ADM to
be responsible for any debts or other liabilities of The Subsidiaries. The
Subsidiaries are separate entities and each is responsible for any liabilities
created.
5. This Agreement shall be construed and enforced in accordance with
the laws of the State of New Jersey and shall not be modified or terminated
except by a written instrument executed by the parties hereto.
6. This Agreement supercedes any previous agreements between the
parties hereto, whether written, oral or by practice.
In confirmation of the foregoing, the parties hereto have executed this
Agreement as of the day and year first above written.
/s/ Andre' XxXxxx
--------------------------------------------
ADM Tronics Unlimited, Inc.
/s/ Andre' XxXxxx
--------------------------------------------
Sonotron Medical Systems, Inc.
/s/ Andre' XxXxxx
--------------------------------------------
Vet-Sonotron Systems, Inc.
/s/ Andre' XxXxxx
--------------------------------------------
AA Northvale Medical Associates, Inc.
/s/ Andre' XxXxxx
--------------------------------------------
Enviro-Pack Development Corporation
/s/ Andre' XxXxxx
--------------------------------------------
Precision Assembly Corporation
/s/ Andre' XxXxxx
--------------------------------------------
Pegasus Laboratories, Inc.
/s/ Andre' XxXxxx
--------------------------------------------
Immuno-Therapy Corporation
2
FIRST AMENDMENT
TO
MANAGEMENT SERVICES AGREEMENT
This FIRST AMENDMENT TO MANAGEMENT SERVICES AGREEMENT (this "Amendment"), dated
February 10, 2005, is by and among ADM Tronics Unlimited, Inc., a Delaware
corporation ("ADM"), Sonotron Medical Systems, Inc., a Delaware corporation
("SMS"), Ivivi Technologies, Inc., a New Jersey corporation formerly known as AA
Northvale Medical Associates, Inc.("Ivivi"), and Pegasus Laboratories, Inc., a
New Jersey corporation ("PL"). Capitalized terms used but not otherwise defined
herein shall have the meanings given to such terms in the Management Services
Agreement (as defined below).
WHEREAS, ADM, SMS, Ivivi, PL, Vet-Sonotron Systems, Inc. ("VET"), Enviro-Pack
Development Corporation ("Enviro"), Precision Assembly Corporation ("PAC") and
Immuno-Therapy Corporation ("ITC") entered into a management services agreement
on August 15, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Management Services Agreement");
WHEREAS, in April 2003, the operations of VET, Enviro, PAC and ITC were
transferred from ADM to Ivivi;
WHEREAS, ADM, SMS, Ivivi and PL desire to amend the Management Services
Agreement to, among other things, set forth the procedure by which the monthly
dollar amount payable by each of SMS, Ivivi and PL to ADM for its services
thereunder is determined;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and
agreements contained herein, the parties hereto hereby agree as follows:
Section 1. Amendments to Management Services Agreement. As of the date
hereof, the Management Services Agreement is hereby amended as follows:
(a) The introductory sentence of the Management Services
Agreement is hereby amended by deleting the parenthetical "(SMS, VET, Enviro,
AAN, PAC, PL and ITC collectively, referred to herein as "The Subsidiaries")"
and replacing such parenthetical with "(SMS, Ivivi and PL are collectively
referred to herein as the "Subsidiaries")."
(b) Paragraph 2 of the Management Services Agreement is
hereby amended and restated in its entirety as follows:
"2. Each Subsidiary shall pay ADM for such Services
on a monthly basis in an amount to be mutually
determined by ADM and such Subsidiary based upon a
portion of ADM's applicable costs plus any direct
invoices from third parties specific to such
Subsidiary's activities for such month."
3
(c) Paragraph 3 of the Management Services Agreement is
hereby amended and restated in its entirety as follows:
"3. With respect to the use of real property by each
Subsidiary, ADM and such Subsidiary shall mutually
determine the amount of space allocated to such
Subsidiary on a monthly basis for both office and
non-office space and such Subsidiary shall reimburse
ADM for the lease costs, real property taxes and
related costs for such portion of both office and
non-office space."
(c) The phrase "The Subsidiaries," each time it appears in the
preamble and Sections 1, 4 and 5 of the Management Services Agreement is hereby
deleted and replaced with the phrase "the Subsidiaries."
Section 2. Representations and Warranties. Each of the parties to this
Amendment hereby represents and warrants to the other that:
(a) the execution, delivery and performance by it of this
Amendment and the taking by it of all actions contemplated thereby are within
its corporate powers, have been duly authorized by all necessary corporate
action and do not contravene (i) its charter or by-laws or similar
organizational documents, or (ii) any law or any contractual restriction binding
on or affecting any such entity;
(b) no authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body is
required (other than those which have been given or made) for the due execution,
delivery and performance by it of this Amendment or for the taking by it of any
action contemplated hereby to be taken by it; and
(c) this Amendment constitutes the legal, valid and binding
obligation of it enforceable against it in accordance with its terms, except as
such enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to the enforcement of
creditor's rights in general.
Section 3. Miscellaneous.
(a) This Amendment and the rights and obligations of the
parties hereunder shall be governed by, and construed in accordance with, the
laws of the State of New Jersey.
(b) This Amendment may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument.
(c) This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any provision of the
Management Services Agreement. Except as otherwise provided herein, all terms
and conditions of the Management Services Agreement and all rights and
obligations thereunder of the parties thereto shall remain in full force and
effect.
(d) This Amendment amends the terms of the Management
Services Agreement and shall be deemed to form a part of, and shall be construed
in connection with and as part of, the Management Services Agreement for any and
all purposes. Any reference to the Management Services Agreement, following the
execution and delivery of this Amendment, shall be deemed a reference to such
Management Services Agreement as hereby amended.
[Remainder of Page Intentionally Left Blank]
4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
ADM TRONICS UNLIMITED, INC.
By: /s/ Andre' XxXxxx
-----------------------------------
Name: Andre' XxXxxx
Title: President
IVIVI TECHNOLOGIES, INC.
By: /s/ Andre' XxXxxx
------------------------------------
Name: Andre' XxXxxx
Title: Chairman & CFO
SONOTRON MEDICAL SYSTEMS, INC.
By: /s/ Andre' XxXxxx
------------------------------------
Name: Andre' XxXxxx
Title: President
PEGASUS LABORATORIES, INC.
By: /s/ Andre' XxXxxx
------------------------------------
Name: Andre' XxXxxx
Title: President
5
SECOND AMENDMENT
TO
MANAGEMENT SERVICES AGREEMENT
This SECOND AMENDMENT TO MANAGEMENT SERVICES AGREEMENT (this "Amendment"), dated
August 28, 2006, is by and among ADM Tronics Unlimited, Inc., a Delaware
corporation ("ADM"), Sonotron Medical Systems, Inc., a Delaware corporation
("SMS"), Ivivi Technologies, Inc., a New Jersey corporation formerly known as AA
Northvale Medical Associates, Inc.("Ivivi"), and Pegasus Laboratories, Inc., a
New Jersey corporation ("PL"). Capitalized terms used but not otherwise defined
herein shall have the meanings given to such terms in the Management Services
Agreement (as defined below).
WHEREAS, ADM, SMS, Ivivi, PL, Vet-Sonotron Systems, Inc. ("VET"), Enviro-Pack
Development Corporation ("Enviro"), Precision Assembly Corporation ("PAC") and
Immuno-Therapy Corporation ("ITC") entered into a management services agreement
on August 15, 2001, as amended by the First Amendment to Management Services
Agreement, dated as of February 10, 2005 (as amended, supplemented or otherwise
modified from time to time, the "Management Services Agreement");
WHEREAS, in April 2003, the operations of VET, Enviro, PAC and ITC were
transferred from ADM to Ivivi; and in February 2005, ADM, SMS, Ivivi and PL
amended the Management Services Agreement to, among other things, set forth the
procedure by which the monthly dollar amount payable by each of SMS, Ivivi and
PL to ADM for its services thereunder is determined;
WHEREAS, since July 2004, Ivivi has hired several employees who currently
provide Ivivi with many of the services that ADM provides to the Subsidiaries
under the Management Services Agreement; and
WHEREAS, the Subsidiaries desire to amend the Management Services Agreement to,
among other things, provide that, as of the effective date (the "Effective
Date") of Ivivi's Registration Statement on Form SB-2 (Registration No. 122768)
initially filed with the Securities and Exchange Commission on February 11, 2005
(as amended from time to time, the "Registration Statement"), the services
provided by ADM to Ivivi under the Management Services Agreement (i) will be
limited to administrative, technical, engineering and regulatory services with
respect to Ivivi's products and the allocation of a portion of ADM leased space
in Northvale, New Jersey, and (ii) will cease to include any other services
provided by ADM to the Subsidiaries thereunder, including, without limitation,
marketing and sales services, clerical and communication services, services for
the maintenance of a checking account for the deposit of funds received and the
writing of checks, and services for the maintenance of accounting records.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and
agreements contained herein, the parties hereto hereby agree as follows:
Section 4. Amendments to Management Services Agreement. As of the date
hereof, the Management Services Agreement is hereby amended as follows:
(a) Paragraph 1 of the Management Services Agreement is
hereby amended and restated in its entirety as follows:
"1. In accordance with and subject to the terms and
conditions set forth herein, ADM shall provide the
Subsidiaries with the following services
(collectively, the "Services"): managerial and
administrative services, technical, engineering and
regulatory services, marketing and sales services,
clerical and communication services, the maintenance
of checking accounts for the deposit of funds
received and the writing of checks, the maintenance
of accounting records and other services in the
normal course of business; provided, however, that
from and after the Effective Date, such services with
respect to Ivivi shall be limited to administrative,
technical, engineering and regulatory services with
respect to Ivivi's products and shall cease to
include any and all other services, including,
without limitation, managerial services, marketing
and sales services, clerical and communication
services; the maintenance of checking accounts for
the deposit of funds received and the writing of
checks, the maintenance of accounting records and
other services in the normal course of business."
6
Section 5. Representations and Warranties. Each of the parties to this
Amendment hereby represents and warrants to the other that:
(a) the execution, delivery and performance by it of this
Amendment and the taking by it of all actions contemplated thereby are within
its corporate powers, have been duly authorized by all necessary corporate
action and do not contravene (i) its charter or by-laws or similar
organizational documents, or (ii) any law or any contractual restriction binding
on or affecting any such entity;
(b) no authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body is
required (other than those which have been given or made) for the due execution,
delivery and performance by it of this Amendment or for the taking by it of any
action contemplated hereby to be taken by it; and
(c) this Amendment constitutes the legal, valid and binding
obligation of it enforceable against it in accordance with its terms, except as
such enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to the enforcement of
creditor's rights in general.
Section 6. Miscellaneous.
(a) This Amendment and the rights and obligations of the
parties hereunder shall be governed by, and construed in accordance with, the
laws of the State of New Jersey.
(b) This Amendment may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument.
(c) This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any provision of the
Management Services Agreement. Except as otherwise provided herein, all terms
and conditions of the Management Services Agreement and all rights and
obligations thereunder of the parties thereto shall remain in full force and
effect.
(d) This Amendment amends the terms of the Management
Services Agreement and shall be deemed to form a part of, and shall be construed
in connection with and as part of, the Management Services Agreement for any and
all purposes. Any reference to the Management Services Agreement, following the
execution and delivery of this Amendment, shall be deemed a reference to such
Management Services Agreement as hereby amended.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
7
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
ADM TRONICS UNLIMITED, INC.
By: /s/ Andre' XxXxxx
------------------------
Name: Andre' XxXxxx
Title: President
IVIVI TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxx
------------------------
Name: Xxxxx Xxxxxx
Title: President
SONOTRON MEDICAL SYSTEMS, INC.
By: /s/ Andre' XxXxxx
------------------------
Name: Andre' XxXxxx
Title: President
PEGASUS LABORATORIES, INC.
By: /s/ Andre' XxXxxx
------------------------
Name: Andre' XxXxxx
Title: President
