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EXHIBIT 10.1
Doc 2/
ref.: MS/MANAGEMENT.USU
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 in formation USUS NOTUS B.V. i.o., with
registered office in Westzaan, legally represented in this matter by
its organizer, ▇▇. ▇. ▇▇▇▇▇, (hereafter called: "Usus");
3. a. the closed corporation MUTARESTES B.V., with registered office
in Heerhugowaard, legally represented in this matter by its
statutory directors, ▇▇. ▇. ▇▇▇▇▇ and Mr. N. Th. ▇.
▇▇▇▇▇▇▇▇▇▇, (hereafter called: "Mutarestes");
b. the closed corporation PLURIPHARM INTERNATIONAL B.V., with
registered office in Heerhugowaard, legally represented in
this matter by its statutory director, Mutarestes, (hereafter
called: "Pluripharm");
c. the closed corporation FINANCIERINGSMAATSCHAPPIJ DE NIEUWE
WERELD B.V., with registered office in Heerhugowaard, legally
represented in this matter by its statutory director,
Mutarestes, (hereafter called: "DNW");
Parties numbered 3.a. through 3.c. 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
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Nevada, United States, EUROMED INC. ("EuroMed"), is the Netherlands
holding company of EuroMed's operating companies;
b. EuroMed B.V. holds 100% of the shares in the closed corporations
Confedera B.V. ("Confedera") and Galenica B.V. ("Galenica") and 100%
of the shares in Mutarestes, which corporation in turn holds 100% of
the shares in Pluripharm, which corporation in turn holds 100% of the
shares in 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, Usus is prepared and able to fulfill this need for
the benefit of Mutarestes and its subsidiaries Pluripharm and DNW, by
making a qualified executive available to Mutarestes on the following
conditions;
HAVE AGREED AS FOLLOWS:
Article 1 Activities
1.1 For the duration of this agreement (the "Agreement"), Usus shall make
a manager available to Mutarestes, i.e. ▇▇. ▇. ▇▇▇▇▇ (hereafter
called: "Manager"). Mutarestes states that it agrees 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, Usus can propose a replacement manager to Mutarestes.
Mutarestes shall inform Usus within
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one week in writing whether it agrees to the proposed replacement.
1.3 If it should be necessary for Mutarestes' conduct of business, EuroMed
B.V. shall consult with Usus 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 Mutarestes
by Usus, the parties recognize expressly that the Manager is not in
the employ of Mutarestes, nor can be considered in any manner as an
employee of Mutarestes.
1.5 For the execution of its activities, Usus shall be named a statutory
director of Mutarestes, which corporation during the duration of this
Agreement shall continue to function as a statutory director of
Pluripharm and DNW. With regard to its activities as statutory
director, NTP shall be represented by the Manager, or by his
replacement.
1.6 Mutarestes pledges to grant to the Manager that authority and
cooperation which are required for the proper performance of his
activities.
Article 2 Compensation
2.1 Mutarestes shall compensate Usus for its activities f 200,000 per
year, excluding value added tax. Mutarestes shall pay the compensation
in four equal installments per year. Usus shall send an invoice to
Mutarestes once per quarter in which the activities of the Manager are
also explained. Mutarestes 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 Usus shall see to strict compliance with all obligations incumbent
upon it with regard to added tax and with regard to payroll tax and
social insurance premiums relating to the
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Manager. Usus shall indemnify Mutarestes with regard to all possible
claims by the tax authorities and/or the trade association against
Mutarestes in the event that they should take the position that
Mutarestes has 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 Mutarestes and no appropriate
replacement is provided, Mutarestes shall be released from its
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 action 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 Usus 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. Usus or Mutarestes is declared bankrupt or if suspension of
payment is granted to Usus or Mutarestes;
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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 has not been able, for more than thirty-five days, to
fulfill the obligations of article 1 and Mutarestes has not
accepted Usus' offer pursuant to article 1.2.
3.5 Usus and Mutarestes 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 Usus and the Manager shall not be liable to Mutarestes, 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 Usus and/or the Manager.
4.2 Mutarestes releases Usus and the Manager in the event of liability of
Usus 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
Usus and/or the Manager.
Article 5 Competition clause
5.1 Neither Usus 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 Mutarestes, other than
activities with regard to having pharmacies. Neither Usus 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, Usus 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 Usus for this fine.
Article 6 Confidentiality requirement
6.1 Usus 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 Mutarestes and the companies
connected with Mutarestes, including particularly (but not limited to)
knowledge regarding the pricing used by Pluripharm and discounts and
relationships with customers.
6.2 Usus 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, Usus
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 Usus 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 Usus
shall rest with Pluripharm and, insofar as necessary, Usus shall
transfer these unconditionally to Pluripharm and they shall be
unconditionally accepted by Pluripharm.
8.2 Usus 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 Pluripharm for
the conduct of Pluripharm's 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, such 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 Mutarestes 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 activities to be performed in
respect of the Agreement shall not be damaging to the other
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operating companies.
11.3 a. The Manager shall agree to consult regularly, but at least
once a month, with the management of Galenica and Confedera
regarding the state of affairs within the Corporations and the
policy to be carried out regarding the Companies.
11.3 b. Usus 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 Galenica and Confedera, 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, Usus shall carry out 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 Usus notices that the actual developments of
the Corporations are going to deviate from the Business Plan,
Usus shall notify the management of Galenica and Confedera 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
Galenica and Confedera 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;
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
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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.
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
Mutarestes, that this Agreement shall be signed on behalf of
Mutarestes by its statutory directors A. Doets and N. Th. ▇.
▇▇▇▇▇▇▇▇▇▇.
Drawn up and signed in duplicate in Amsterdam on 5 July 1996.
1. EUROMED EUROPE B.V.
[signature]
(B.V. Wisteria)
2. USUS NOTUS B.V. I.O.
[signature]
(A. Doets)
(for him by power of attorney: N. Th. ▇. ▇▇▇▇▇▇▇▇▇▇)
3.a. MUTARESTES B.V.
[signature] [signature]
(N. Th. ▇. ▇▇▇▇▇▇▇▇▇▇) (A. Doets)
(for him by power of attorney)
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N. Th. ▇. ▇▇▇▇▇▇▇▇▇▇
3.b. PLURIPHARM INTERNATIONAL B.V.
[signature]
(Mutarestes B.V.)
3.c. FINANCIERINGSMAATSCHAPPIJ DE NIEUWE WERELD B.V.
[signature]
(Mutarestes B.V.)
For articles 5.1, 5.2, 6, 8, 11.2, 11.3 and 11.4:
[signature]
A. Doets
(For him by power of attorney: N. Th. Roozekrans)
EuroMed, Inc. guarantees the compliance with this Agreement by EuroMed B.V. and
by the Corporations.
[signature]
(EuroMed, Inc.)
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