MANAGEMENT SERVICES AGREEMENT
THIS MANAGEMENT SERVICES AGREEMENT (the "Agreement") is entered into
this 1 day of September 1998, by and among EM Pharma, Inc. a Delaware
corporation with its offices at 1209 Orange Street, Wilmington, DE (the
"Company"), and Xxx, X.X., a Delaware limited partnership with offices at 0000
Xxxx Xxxxxx Xxxxxxxxx Xxxxx, Xxxx, XX 00000 ("Xxx").
W I T N E S S E T H :
WHEREAS, the Company desires that Xxx provide certain services to the
Company on the terms and conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
THE SERVICES
Section 1.1 Services. Xxx shall provide to the Company the services
set forth on Exhibit A (the "Services"). Xxx shall use its best efforts to
complete the Services, but does not guarantee the achievement of any specific
result from the Services.
Section 1.2 Fee. In exchange for the Services, the Company shall pay
to Xxx a flat fee of $175,000 paid quarterly in arrears. In addition, the
Company shall reimburse Xxx for any out-of-pocket costs and expenses incurred
by Xxx in providing the Services (including, without limitation, legal and
accounting fees, telephone expenses and travel expenses) excluding
administrative expenses and employment expenses of personnel performing the
Services.
Section 1.3 Reports. If requested by the Company, at the end of each
calendar quarter, Xxx shall report on the status of the Services.
Section 1.4 Level of Effort; Officers. Xxx shall perform the Services
using the level of resources, including personnel, that Xxx reasonably
determines is appropriate to perform the Services on a timely basis. If
requested by the Company, Xxx may provide personnel to act as officers of the
Company in connection with the performance of the Services.
ARTICLE II
TERM
Section 2.1 Term. The term of the Agreement shall commence on the
date of this Agreement and continue indefinitely, unless either party
terminates the Agreement in the manner set forth in Section 2.2 below.
Section 2.2 Termination. Either party may terminate the Agreement
upon 30 days notice by a written statement signed by a duly authorized
representative of the party. Either party may terminate the Agreement in full
or in part, with respect to specific services. If the Agreement is terminated
for specific services, the parties agree to renegotiate the quarterly fee set
forth in Section 1.2 in good faith; the Agreement shall continue in full force
and effect as to the remaining services.
ARTICLE III
MISCELLANEOUS
Section 3.1 Force Majeure. Any party hereto shall be entitled to
suspend performance of this Agreement in the event that it is unable to
perform by reason, directly or indirectly, of any act of God, war, riot, civil
disturbance, fire, water, act of any government or authority, labor dispute,
electrical shortage, failure of communications or common carrier, or any cause
beyond the reasonable control of the non-performing party; provided that such
non-performing party shall use its best efforts to resume its performance
under this Agreement as soon as such event constituting an event of force
majeure shall have ended or abated.
Section 3.2 Costs; Access to Facilities. The Company shall bear any
costs or expenses of its employees in connection with the Services. Xxx shall
have the right for approved representatives to have reasonable access to the
Company's files during usual business hours and with reasonable prior notice
but only to the extent necessary to perform the delivery of any of the
Services.
Section 3.3 Agency. Xxx shall perform the services hereunder as an
independent contractor and none of the provisions of this Agreement shall be
deemed to constitute a relationship of partnership, agency or joint venturers
among the parties.
Section 3.4 Communications. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (a) personally delivered, (b) sent by facsimile transmission
(with transmission confirmed), (c) sent by overnight courier (with delivery
confirmed) or (d) mailed by United States first-class, certified or registered
mail, postage prepaid, to the other party at the following addresses (or at
such other address as subsequently shall be given in writing by any party to
the other):
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(a) If to the Company, to:
EM Pharma, Inc.
0000 Xxxx Xxxxxx Xxxxxxxxx Xxxxx
Xxxx, XX 00000
Attention: President and Chief Financial Officer
(b) If to Xxx, to:
0000 Xxxx Xxxxxx Xxxxxxxxx Xxxxx
Xxxx, XX 00000
Attention: Chief Financial Officer
Section 3.5 Nonassignability; Amendment; Waiver. This Agreement shall
not be assignable by either of the parties hereto without the written consent
of the other party. This Agreement may not be altered or otherwise amended
except pursuant to an instrument in writing signed by the parties hereto.
Section 3.6 Binding Effect; No Third Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the parties
hereto, their successors and permitted assigns. Nothing in this Agreement
expressed or implied is intended to confer on any other person, other than the
parties hereto or their permitted assigns, any rights, remedies, agreements,
undertakings, obligations or liabilities under or by reason of this Agreement.
Section 3.7 Article and Section Headings. The Article and Section
headings contained in this Agreement are for reference purposes only and shall
not constitute a part of this Agreement, nor shall they affect its meaning,
construction, interpretation or effect.
Section 3.8 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and
all of which together shall be deemed to be one and the same instrument
Section 3.9 Severability. If any provision of this Agreement shall
finally be determined to be unlawful, then such provision shall be deemed to
be deleted from this Agreement and the other provisions of this Agreement
shall remain in full force and effect.
Section 3.10 Entire Agreement. This Agreement (including any Exhibits
or other documents referred to herein) constitutes the entire agreement
between the parties and supersedes all other prior agreements and
understandings, both oral and written, between the parties, with respect to
the subject matter hereof.
Section 3.11 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York
without regard to its conflicts of laws principles.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
EM PHARMA, INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: President and Chief Executive Officer
XXX, X.X.
By: Xxx, Inc., general partner
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
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EXHIBIT A
The Services
General Sales & Marketing Oversight
Sales Contract Administration
Purchasing
Inventory Control
Customer Service/Order Entry
Distribution
Finance & Accounting
IS Services
Human Resources Services
QA/QC
Regulatory (R&D)
Legal
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