EXHIBIT 10.4
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (the "Agreement") is entered into as of April
10, 2005, by and among NEWCO1, a Delaware corporation ("NEWCO"), and AMCARE LABS
INTERNATIONAL, INC., a Delaware corporation (the "CONSULTANT").
WHEREAS, Consultant and Bridgetech Holdings International Inc. have
entered into that certain Joint Venture Agreement, with an effective date of
April 10, 2005 (the "JOINT VENTURE AGREEMENT");
WHEREAS, Consultant is in the business of providing laboratory medicine
and pathology services in select global markets and has experience with
strategic planning, business administration and other management skills and
services related thereto;
WHEREAS, Newco will require Consultant's special advisory skills and
services in connection with its general business operations;
WHEREAS, Consultant is willing to provide such advisory services to Newco
through an advisory committee to be formed by Consultant for such specific
purpose; and
WHEREAS, Consultant also desires to assist Newco with the development of a
marketing plan and to license certain trademarks to Newco;
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties hereto, intending to be legally bound, do hereby agree as follows:
1. Defined Terms. Capitalized terms not otherwise defined herein shall
have the meanings assigned to them in the Joint Venture Agreement.
2. Engagement; Services to be Performed. Newco hereby engages the
Consultant for the Term (as hereinafter defined) and upon the terms and
conditions set forth herein to provide consulting and advisory services to
Newco, to the extent reasonably requested by Newco (the "SERVICES"). These
Services will be as more fully described on Schedule 2 hereto. In consideration
of the remuneration herein specified, Consultant accepts such engagement and
agrees to perform the Services as specified herein.
3. Advisory Committee. Consultant acknowledges that Newco may form an
Advisory Committee for the purpose of providing strategic and other guidance to
Newco (the "ADVISORY COMMITTEE"). Consultant hereby agrees, to the extent
requested by Newco and for no additional consideration, to (i) assist Newco in
identifying candidates to serve on the Advisory Committee and (ii) make
available [ONE (1)] employee of Consultant, to be agreed upon by Consultant and
Newco, to serve on the Advisory Committee.
4. Compensation; Expense Reimbursement.
(a) In consideration of the Services and the other matters set
forth herein, Newco shall pay Consultant a quarterly fee (hereinafter, the
"Management Fee") equal to 5.0% of the
gross revenues of Newco for such quarter, which Management Fee shall be paid to
the Consultant by Newco in cash on or before the [THIRTIETH (30TH)] day
following the end of the calendar quarter.
(b) In addition to the Management Fee, Newco shall reimburse
Consultant for all reasonable out-of-pocket expenses incurred by Consultant in
connection with Consultant's performance of such services (other than the
Services) that may be requested by Newco from time-to-time during the Term,
including, without limitation, reasonable travel, lodging and similar
out-of-pocket costs reasonably incurred by it in connection with or on account
of its performance of such services for Newco. Consultant must obtain the
approval of Newco for the incurrence of any reimbursable costs in excess of
$1000 (which approval shall not be unreasonably withheld). Reimbursement shall
be made only upon presentation to Newco by the Consultant of reasonably itemized
documentation therefor.
(c) Consultant hereby acknowledgtes that it has received a
payment of $30,000 from Newco (or Bridgetech Holdings International, Inc.) as an
advance payment of future Management Fees that may become payable pursuant to
Section 4(a) above. Newco and Consutlant hereby agree that Newco shall not be
obligated to pay any quarterly Management Fees to Consultant pursuant to Section
4(a) until the aggregate amount of Management Fees earned by the Consultant
pursuant to Section 4(a) exceeds $30,000.
5. License.
(a) Consultant hereby grants to Newco a non-exclusive,
non-transferable, royalty-free license or sub-license, as applicable, (the
"License") to use the trademarks identified and depicted on Schedule 5 hereto
(the "Marks") during the Term (and any extensions thereof).
(b) Newco shall use the Marks only in connection with its
advertising, promotional activities, website, corporate presentations and as may
be otherwise agreed by Consultant.
(c) Consultant hereby represents and warrrants to Newco that
Consultant is (i) the sole and exclusive owner of the Marks or (ii) has a valid
and existing license to such Marks with a right to sub-license such Marks to
Newco as provided herein.
(d) Consultant hereby acknowledges and agrees that Newco shall
be entitled to advertise, publicize and otherwise represent to third parties the
fact that Newco is managed by Consultant, which is affiliated with Xxxxx Xxxxxxx
International Medical Laboratories, in any correspondence, communications
(verbal, printed or otherwise), promotional and marketing materials or
otherwise. To the extent necessary to accomplish the foregoing provisions,
Consultant will license or sublicense any relevant intellectual property rights
to Newco. Consultant hereby represents and warrants to Newco that Consultant is
party to a written agreement with Xxxxx Xxxxxxx International Medical
Laboratories pursuant to which Consultant is designated as an "affiliate" of
Xxxxx Xxxxxxx International Medical Laboratories. Such agreement is a legal,
valid and binding obligation with respect to each of Consultant and Xxxxx
Xxxxxxx International Medical Laboratories. Neither Xxxxx Xxxxxxx Medical
Laboratories nor Consultant is in breach of or in default under such agreement.
During the Term, Consultant shall notify Newco in writing immediately upon the
termination or expiration of such agreement or any amendment thereof or default
thereunder that results or could reasonably be expected to result in Consultant
no longer being an affiliate of Xxxxx Xxxxxxx International Medical
Laboratories. Consultant further represents and warrants to Newco that
Consultant has a valid license and right to sublicense to Newco and Marks that
are owned by Xxxxx Xxxxxxx International Medical Laboratories.
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6. Term. Unless earlier terminated pursuant to the Joint Venture
Agreement, the engagement hereunder shall be for a term commencing on the date
hereof and expiring on the tenth anniversary hereof (the "TERM"). Upon
expiration of the Term, this Agreement shall automatically extend for successive
periods of one (1) year, unless either party shall give notice to the other
Party at least ninety (90) days prior to the end of the Term (or any annual
extension thereof) indicating that it does not intend to renew this Agreement.
Upon termination of this Agreement or expiration of the Term (including all
annual extensions thereof), the parties shall have no further obligations
hereunder other than the obligation to pay any accrued but unpaid fees for
Services performed by Consultant prior to the effective date of such
termination.
7. Binding Effect. This Agreement shall be binding on and inure to the
benefit of the Parties and their respective successors and permitted assigns.
8. Assignment. This Agreement shall not be assigned by either Party
without the prior written consent of the other Party, not to be unreasonably
delayed or withheld, and any purported such assignment without such consent
shall be void.
9. Notices And Other Communications.
(a) Each notice, communication and delivery under this
Agreement (i) shall be made in writing signed by the Party making the same, (ii)
shall specify the Section of this Agreement pursuant to which it is given, (iii)
shall be given either in person or by telecopier, effective upon such delivery
or the confirmed transmission and (iv) if not given in person, shall be sent to
the applicable Party at the address set forth below (or at such other address as
the applicable Party may furnish to the other Party pursuant to this subsection)
by international courier delivery service, effective upon the 7th business day
after such notice is deposited, delivery charges pre-paid, with such
international courier delivery service. Each Party's notice information is as
follows:
NEWCO: c/o Bridgetech Holdings International, Inc.
000 X. Xxxxxxx 000, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
XXX
Attn: Xxxxxx X. Xxxx III
Phone: 000-000-0000
Fax: 000-000-0000
AMCARE: AmcareLabs International, Inc
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
XXX
Attn: Xxxxx Xxxxxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
(b) Either Party may modify any information specified in this
Section 9 by giving written notice to the other Party.
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(c) All written communications made as provided in Section 9
shall be deemed given upon receipt by the Party to which it is addressed, which,
in the case of facsimile, shall be deemed to occur by the close of the business
day in the place of receipt on which the same is transmitted or such earlier
time as is confirmed by the receiving Party.
10. Severability. If any term or provision of this Agreement, or the
application thereof to any person or circumstance, shall to any extent be
contrary to any applicable law or regulation or otherwise invalid or
unenforceable, the remainder of this Agreement or the application of such term
or provision to persons or circumstances other than those as to which it is
contrary, invalid or unenforceable shall not be affected thereby and, to the
extent consistent with the overall intent of this Agreement taken as a whole,
shall be enforced to the fullest extent permitted by applicable law and
regulation.
11. No Waiver. No waiver by either Party of any one or more defaults by
the other Party in the performance of any of the provisions of this Agreement
shall operate or be construed as a waiver of any other default or defaults
whether of a like kind or different nature. No delay by either Party in the
enforcement of any of its rights under this Agreement shall be deemed to be a
waiver of such rights.
12. Relationship between the Parties. Except to the extent provided in the
Joint Venture Agreement, nothing in this Agreement shall create or be deemed to
create a partnership or joint venture between the Parties and except to the
extent expressly specified in this Agreement, no Party will or is entitled to
act as agent for any other Party.
13. No Third Party Beneficiaries. Except to the extent provided in the
Joint Venture Agreement, this Agreement confers no rights whatsoever upon any
person other than the Parties hereto and shall not create, or be interpreted as
creating, any standard of care, duty or liability to any person not a Party
hereto.
14. Governing Law. This Agreement will be governed by the laws of Delaware
except as specifically provided in such documents, without regard to principles
of conflict of laws.
15. Certain Rules of Construction. The following rules of construction
will apply throughout this Agreement:
(a) Headings. Any headings used in this Agreement are for the
purpose of convenience only and shall not affect the meaning or interpretation
of the agreement or document in question.
(b) Words of Inclusion. The word "including" will not be
construed to be a term of limitation, so that references to "included" matters
or items will be regarded as illustrative and will not be interpreted as a
limitation on, or an exclusive listing of, the matters or items referred to.
(c) Singular and Plural Forms; Genders. Whenever the context
so requires, the singular includes the plural and the plural includes the
singular, and the gender of any pronoun includes the other genders.
16. Counterparts. This Agreement may be executed by each Party upon a
separate copy, and in several counterparts, each of which will be deemed to be
an original.
[Signatures appear on following page.]
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DULY EXECUTED and delivered by the parties as of the date first above appearing.
NEWCO
By: /s/ Xxxxxx X. Xxxx III
--------------------------------
Name: Xxxxxx X. Xxxx III
Title: EVP and CFO
AMCARE LABS INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President
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SCHEDULE 2
SERVICES
- Protocols
- Procedures
- Oversight
- Advice
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SCHEDULE 5
MARKS
[AMCARE NAME AND LOGO]
[JHI NAME AND LOGO]
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