EXHIBIT 10.26
[EIM LOGO]
EXECUTIVE INTERIM MANAGEMENT
The Daton Mariok Group, LLC
AGREEMENT FOR TEMPORARY MANAGEMENT SERVICES
This Agreement for Temporary Executive Services ("Agreement") is entered
into as of the 16th day of December 2003, by and between Virbac Corporation (the
"Client") and Executive Interim Management ("EIM");
WITNESSETH THAT:
WHEREAS, the parties desire to enter into this Agreement pertaining to the
provision of temporary management services to the Client by EIM;
NOW, THEREFORE, in consideration of the mutual covenants and agreement set
forth below, it is hereby covenanted and agreed by the Client and EIM as
follows:
1. Assignment Term.
(a) This Agreement shall be effective from the 18th day of December
2003, to the 18th day of June 2004 (the "Assignment Term").
(b) The Assignment Term may be extended by a mutual writing of the
parties.
2. Provision of Services.
(a) EIM agrees to furnish to the Client a temporary manager to perform
services for the Client in the capacity of the Client's Interim CEO
for the period of the Assignment Term (the "Assignment").
(b) EIM agrees that the Assignment shall be performed by an EIM
independent contractor (the "Manager") who has been screened by EIM
for the Assignment. The Client shall retain the responsibility of
the final approval of the selection of the Manager.
(c) EIM shall maintain, at its expense, public liability insurance
covering the Manager.
(d) The Client acknowledges that EIM will be responsible for overseeing
the Assignment and providing the Manager to perform the Assignment,
and
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that the Client's Board of Directors will be responsible for
supervising the Manager's performance of the Assignment.
(e) The Client acknowledges that the Manager shall be entitled to rely
on information provided by, and on the advice of, the Client's
officers, directors and employees and its accountants, legal counsel
and other professionals in performing the Assignment.
(f) The Client acknowledges that the Manager shall in no event be
authorized to, without the prior approval of the Client's Board of
Directors or a committee thereof delegated with the duty to
supervise the Manager, incur debt on behalf of the Client, guarantee
obligations on behalf of the Client, terminate agreements on behalf
of the Client, terminate the Client's Managers, transfer the
Client's assets (other than in the ordinary course of business),
settle claims by or against the Client for an amount over $10,000,
or conduct any other transactions outside the normal course of
business.
(g) EIM shall at all times remain an independent contractor with respect
to the Client. Nothing contained herein shall be construed to
create an agency relationship between the Client and EIM.
(h) The Client acknowledges that EIM assigns the Manager on the basis of
the Assignment. The Client shall not change the Assignment without
the prior written approval of EIM.
3. Payments.
(a) The Client shall pay EIM at the rate of $2,000 per working day for
the first three month period (December 18th 2003 through March 18th
20O4) and $2,500 per working day for the second three month period
(March 19th 2004 through June 18th 2004) in which services are
provided under this Agreement.
(b) The Client shall pay all sums due to EIM under this Agreement
monthly, in advance, within ten days from the date of invoice.
(c) The Client shall be liable to EIM for payment of any applicable
taxes (other than taxes based on income) due under this Agreement.
(d) The Client shall reimburse the Manager directly for reasonable
expenses for entertainment, travel, meals, lodging and similar items
in performing the Assignment. The Client acknowledges that EIM is in
no way responsible for the payment of these expenses and agrees to
indemnify EIM for any claim made by the Manager against EIM for
reimbursement of these expenses.
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4. Termination.
(a) This Agreement may be terminated by EIM during the Assignment Term
and by the Client during the first three months of the Assignment
Term only for Cause (as defined below). Following the first three
months of the Assignment Term the Client may terminate this
Agreement for any reason.
(b) This Agreement may be terminated during the Assignment Term only by
a written Notice of Termination communicated to the other party. If
the termination is for Cause, the Notice of Termination shall
provide a minimum of fourteen days in which to cure the Cause for
termination.
(c) Cause. As used herein, "Cause" means
(i) with respect to the conduct of either party or the Manager,
(A) a material breach of this Agreement by such party;
(B) the gross negligence or willful misconduct by such party
or the Manager, which is demonstrably and materially
harmful to the other party, monetarily or otherwise; or
(C) the commencement by or against such party under any
bankruptcy, reorganization arrangement, or similar law,
the making of an assignment for the benefit of creditors
or the petition or application for a custodian, receiver
or trustee for such party or its assets;
(ii) with respect to the conduct of the Client,
(A) the Client's unjustified termination of the Manager or
the Assignment during the first three months of the
Assignment Term; or
(B) the Client's failure to make a timely payment under
this Agreement within five (5) days of notice of such
non-payment; and
(iii) with respect to the conduct of EIM, the Manager's non-
performance of the Assignment due to death, illness or other
unexcused absence which lasts for more than seven days and
EIM's a failure to replace the Manager within thirty (30) days
of such death, disability or unexcused absence.
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(d) Payments on Termination.
(i) If the Client terminates this Agreement for Cause during the
first three months of the Assignment Term or for any reason
thereafter, the Client shall be liable for payments pursuant
to paragraph 3 of this Agreement only up to the date of
termination.
(ii) If EIM terminates this Agreement for Cause, the Client shall
be liable for payments pursuant to paragraph 3 of this
Agreement for the entire Agreement Term as if this Agreement
had not been terminated.
5. Liability. EIM shall be liable to the Client for any damages sustained by
the Client as a direct result of the willful misconduct in the performance
of the Assignment on the part of EIM or the Manager. EIM shall not be
liable for any consequential or punitive damages.
6. Indemnification.
(a) The Client shall indemnify EIM and its Affiliates (as defined
below), and each of EIM's and its Affiliates' partners, members,
officers directors, Managers and agents, against any losses,
liabilities, damages or expenses (including amounts paid for
attorneys' fees, judgments and settlements in connection with any
threatened, pending or completed action, suit or proceeding) to
which any of such persons may become subject in connection with the
services contemplated by this Agreement or in connection with any
involvement with the Client (including serving as an officer,
director, consultant or employee of the Client or any subsidiary or
affiliate of the Client) directly or indirectly on behalf of the
Client, but, in each case, only to the extent that such person was
neither grossly negligent nor engaged in willful malfeasance and,
with respect to any criminal action, such person did not have
reasonable cause at the time of such action to believe that such
person's conduct was unlawful. the Client shall pay the expenses of
any person indemnifiable under this paragraph 6 in advance of the
final disposition of any proceeding, so long as the Client receives
an undertaking by such person to repay the full amount advanced if
there is a final determination that such person did not satisfy the
standards of indemnifiable conduct set forth in this paragraph 6 or
that such person is not otherwise entitled to indemnification as
provided herein. In addition to and not in limitation of the rights
to indemnification provided above, in connection with the duties as
an employee, officer or director of the Client of any person
indemnifiable under this paragraph 6, such person is also entitled
to the fullest indemnity allowed under the laws of the State of
Delaware.
(b) The Client shall provide a letter of indemnity (in the form of
Exhibit A) to any Manager who performs the Assignment.
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(c) For the purposes of this Agreement, the term "Affiliate" means (i)
any corporation, partnership, joint venture or other entity that
owns directly or indirectly, at least fifty percent of the voting
power of any class of stock of EIM (or successor to EIM) entitled to
vote; and (ii) any corporation, partnership, joint venture or other
entity during any period in which at least a fifty percent voting or
profits interest is owned, directly or indirectly, by EIM, by any
entity that is a successor to EIM, or by any entity that is an
Affiliate by reason of clause (i) next above.
7. Non-Competition.
(a) EIM shall take reasonable steps to enter into an agreement with the
Manager providing that the Manager shall not accept an engagement
with a business in competition with the Client's animal
pharmaceuticals business or otherwise compete with the Client for a
period of at least one year following the last day on which the
Manager provides services for the Client.
(b) In the event that the Client offers employment of any sort to the
Manager during the Assignment or within one year of the termination
of this Agreement, and the Manager accepts employment with the
Client, the Client shall pay to EIM an amount of $150,000, plus the
amount payable under paragraph 3 for any remainder of the Assignment
Term,
8. Confidential Information.
(a) EIM agrees that:
(i) Except as required by the lawful order of a court or agency
of competent jurisdiction, or except to the extent that EIM
has express authorization from the Client, EIM agrees to keep
secret and confidential all Confidential Information (as
defined below), and not to disclose the same, either directly
or indirectly, to any other person, firm, or business entity,
or to use it in any way.
(ii) To the extent that any court or agency seeks to have EIM
disclose Confidential Information, EIM shall promptly inform
the Client, and EIM shall take such reasonable steps to
prevent disclosure of Confidential Information until the
Client has been informed of such requested disclosure, and
the Client has an opportunity to respond to such court or
agency. To the extent that EIM obtains information on behalf
of the Client that may be subject to the attorney-client
privilege as to the Client's attorneys. EIM shall take
reasonable steps to maintain the confidentiality of such
information and to preserve such privilege.
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(iii) EIM shall take reasonable steps to enter into an agreement
with the Manager providing for the non-disclosure of the
Client's Confidential Information. EIM acknowledges that the
Client shall be entitled to require the Manager to comply with
reasonable restrictions imposed for the protection of the
Client (including confidentiality restrictions).
(b) The Client agrees that:
(i) Except as required by the lawful order of a court or agency
of competent jurisdiction, or except to the extent that the
Client has express authorization from EIM, the Client agrees
to keep secret and confidential all Confidential Information
(as defined below), and not to disclose the same, either
directly or indirectly, to any other person, firm, or business
entity, or to use it in any way.
(ii) To the extent that any court or agency seeks to have the
Client disclose Confidential Information, the Client shall
promptly inform EIM, and the Client shall take such reasonable
steps to prevent disclosure of Confidential Information until
EIM has been informed of such requested disclosure, and EIM
has an opportunity to respond to such court or agency. To the
extent that the Client obtains information on behalf of EIM
that may be subject to the attorney-client privilege as to
ElM's attorneys, the Client shall take reasonable steps to
maintain the confidentiality of such information and to
preserve such privilege.
(c) For purposes of this Agreement, "Confidential Information" shall
include all non-public information (including, without limitation,
information regarding litigation and pending litigation) concerning
EIM or the Client which was acquired by or disclosed to the other
party during the Assignment Term. For the purposes of this
Agreement, the term "Confidential Information" shall also include
all non-public information concerning any other company that was
shared with EIM or the Client subject to an agreement to maintain
the confidentiality of such information.
(d) This paragraph 8 shall not be construed to unreasonably restrict
EIM's or the Client's ability to disclose Confidential Information
in an arbitration proceeding or a court proceeding in connection
with the assertion of, or defense against, any claim of breach of
this Agreement. If there is a dispute between EIM and the Client as
to whether information may be disclosed in accordance with this
paragraph (d), the matter shall be submitted to the arbitrators or
the court (whichever is applicable) for decision.
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9. Equitable Remedies. EIM and the Client acknowledge that EIM and the Client
would be irreparably injured by a violation of paragraph 8 and agree that they,
in addition to any other remedies available to them for such breach or
threatened breach, shall be entitled to a preliminary injunction, temporary
restraining order, or other equivalent relief, restraining the other party from
any actual or threatened breach of paragraph 8. If a bond is required to be
posted in order for EIM or the Client to secure an injunction or other equitable
remedy, the parties agree that said bond need not be more than a nominal sum.
10. Amendment. This Agreement may be amended or canceled only by mutual
agreement of the parties in writing without consent of any other person.
11. Applicable Law. The provisions and enforcement of this Agreement shall be
construed in accordance with the laws of the State of New York, without regard
to the Conflict of law provisions of any state. All disputes shall be arbitrated
or litigated (whichever is applicable) in New York, New York.
12. Severability. The invalidity or unenforceability of any provision of this
Agreement will not affect the validity or enforceability of any other provision
of this Agreement, and this Agreement will be construed as if such invalid or
unenforceable provision were omitted (but only to the extent that such provision
cannot be appropriately reformed or modified).
13. Waiver of Breach. No waiver by any party hereto of a breach of any provision
of this Agreement by any other party, or of compliance with any condition or
provision of this Agreement to be performed by such other party, will operate or
be construed as a waiver of any subsequent breach by such other party or any
similar or dissimilar provisions and conditions at the same or any prior or
subsequent time. The failure of any party hereto to take any action by reason of
such breach will not deprive such party of the right to take action at any time
while such breach continues.
14. Successors. This Agreement shall be binding upon, and inure to the benefit
of EIM and its successors and assigns and upon any person acquiring, whether by
merger, consolidation, purchase of assets or otherwise, all or substantially all
of EIM's assets and business.
15. Notices. Notices and all other communications provided for in this Agreement
shall be in writing and shall be delivered personally or sent by registered or
certified mail, return receipt requested, postage prepaid (provided that
international mail shall be sent via overnight or two-day delivery), or sent by
facsimile or prepaid overnight courier to the parties at the addresses set forth
below (or such other addresses as shall be specified by the parties by like
notice). Such notices, demands, claims and other communications shall be deemed
given:
(a) in the case of delivery by overnight service with guaranteed
next day delivery, the next day or the day designated for delivery;
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(b) in the case of certified or registered U.S. mail, five days
after deposit in the U.S. mail; or
(c) in the case of facsimile, the date upon which the transmitting
party received confirmation of receipt by facsimile, telephone or
otherwise;
provided, however, that in no event shall any such communications be deemed to
be given later than the date they are actually received. Communications that are
to be delivered by the U.S. mail or by overnight service are to be delivered to
the addresses set forth below:
to EIM:
Xxxxx X. Xxxxxxx
Executive Director
Executive Interim Management
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000 XXX
or to the Client:
Xx. Xxxxxx Pages
Chief Operating Officer
Virbac SA
13 eme rue XXX-XX 00
00000 Xxxxxx xxxxx
XXXXXX
All notices to EIM shall be directed to the attention of Xxxxx X. Xxxxxxx or
EIM, with a copy to the Secretary of EIM. Each party, by written notice
furnished to the other party, may modify the applicable delivery address, except
that notice of change of address shall be effective only upon receipt.
16. Arbitration of All Disputes. Any controversy or claim arising out of or
relating to this Agreement (or the breach thereof) shall be settled by final,
binding and non-appealable arbitration in New York, New York by three
arbitrators. Except as otherwise expressly provided in this paragraph 16, the
arbitration shall be conducted in accordance with the rules of the American
Arbitration Association (the "Association") then in effect. The arbitration
shall be conducted, the relief shall be granted and this Agreement and its
enforcement shall be interpreted in accordance with the laws of the State of New
York, without regard to the conflict of law provisions of any state. The parties
hereby expressly waive the right to recover punitive damages in any arbitration
proceeding relating to this Agreement. One of the arbitrators shall be appointed
by EIM, one shall be appointed by the Client, and the third shall be appointed
by the first two arbitrators. If the first two arbitrators cannot agree on the
third arbitrator within 30 days of the appointment of the second arbitrator,
then the third arbitrator shall be appointed by the Association.
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17. Costs of Enforcement. Each party shall bear its own costs and attorneys'
fees in connection with any controversy or dispute arising out of or relating to
this Agreement (or the breach thereof).
18. Survival of Agreement. Except as otherwise expressly provided in this
Agreement, the rights and obligations of the parties to this Agreement shall
survive the termination of this Agreement.
19. Entire Agreement. Except as otherwise noted herein, this Agreement
constitutes the entire agreement between the parties concerning the subject
matter hereof and supersedes all prior and contemporaneous agreements, if any,
between the parties relating to the subject matter hereof.
IN WITNESS THEREOF, the Client and EIM have caused these presents to be
executed in their name and on their behalf, and their corporate seals to be
hereunto affixed, all as of the day and year first above written.
[The Client]
By: /s/ XXXX XXXXX
----------------------------
Its: CEO VIRBAC SA
Member of the Board, VIRBAC
Corp
ATTEST:
____________________
(Seal)
Executive Interim Management
By: /s/ [ILLEGIBLE]
Its: Executive Director
ATTEST:
____________________
(Seal)
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Exhibit A
December 16th, 2003
Xxxxx Xxxxx
The Client shall indemnify you against any losses, liabilities, damages or
expenses (including amounts paid for attorneys' fees, judgments and settlements
in connection with any threatened, pending or completed action, suit or
proceeding) to which you may become subject in connection with the services
contemplated by the Agreement between EIM and the Client or in connection with
any involvement with the Client (including serving as an officer, director,
consultant or employee of the Client or any subsidiary or affiliate of the
Client) directly or indirectly on behalf of the Client, but, in each case, only
to the extent you were neither grossly negligent nor engaged in willful
malfeasance and, with respect to any criminal action, you did not have
reasonable cause at the time of such action to believe that your conduct was
unlawful. The Client shall pay your expenses in advance of the final disposition
of any proceeding, so long as the Client receives an undertaking by you to repay
the full amount advanced if there is a final determination that you did not
satisfy the standards set forth in this letter or that you are not otherwise
entitled to indemnification as provided herein.
In addition to and not in limitation of the rights of indemnification
provided above, in connection with any of your duties as an employee, officer or
director of the Client, you are also entitled to the fullest indemnity allowed
under the laws of the State of Delaware.
/s/ Xxxx Xxxxx
-------------------------
for the Client
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