EXHIBIT 10(T)
MANAGEMENT AGREEMENT
MANAGEMENT AGREEMENT ("AGREEMENT") DATED AS OF NOVEMBER 2, 1995 BY AND
BETWEEN DIAGNOSTIC LEASING CORP., A NEW YORK CORPORATION ("DLC") AND STONE
MEDICAL SUPPLY CORPORATION ("STONE"), A NEW YORK CORPORATION.
WHEREAS, as of the date hereof Micro Bio-Medics, Inc. ("MBM"), DLC,
Stone and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ have entered into an Agreement of Merger and
Reorganization ("Merger Agreement");
WHEREAS, Stone desires to have DLC engage in its management prior to
the Closing Date contemplated by the Merger Agreement and DLC agrees to do so;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. SERVICES. Stone hereby engages DLC to provide, and DLC agrees to
provide, to Stone services ("Services") at any time or from time to time, during
the term of this Agreement, including arranging for and/or rendering assistance
in connection with the following:
a. purchase of inventory;
b. arranging and managing Stone's warehouse operations;
c. sales;
d. procedures for quality control;
e. administration and monitoring of Stone's payroll practices;
f. administration of Stone's employee benefit programs;
g. accounting, treasury and other financial services;
h. financing and financial matters;
i. relations with lending and banking institutions and
organizations;
j. real estate;
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k. insurance;
l. preparing and filing of federal, state and local tax and/or
information returns;
m. hiring, training and firing of employees and agents (other
than ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ who shall receive no
salary or other compensation from Stone);
n. compliance with all federal, state and local labor laws;
o. developing and recommending labor relations policies and
practices;
p. compensation/benefits program and compliance with all
federal, state and local laws and regulations;
q. complying with all applicable federal, state and local
safety, health and environmental laws and regulations; and
r. such other services as Stone may request or, in DLC's
opinion, require.
It is understood that both parties expect that pursuant to the Merger Agreement
Stone will become a wholly owned subsidiary of MBM and that DLC may manage Stone
during the term of this Agreement in the same way as it would manage any other
subsidiary of MBM, with due regard to the interest of Stone's shareholders.
Stone shall comply with DLC's recommendations with regard to the Services as set
forth in Section 5(e) of the Merger Agreement.
2. PAYMENT. In consideration for DLC agreeing to render the
Services, Stone agrees to pay to DLC a management fee equal to five (5%) percent
of Stone's net paid sales ("Management Fee"). The Management Fee shall be paid
on the 10th day of each month in respect of net paid sales for the previous
month. "Net paid sales" shall mean the net amount actually received by Stone on
all orders solicited and accepted by Stone, less the amount of all returns,
allowances, discounts and credits and less all bad debts, commissions, trade
discounts, freight beyond the point of manufacture and excise taxes. DLC's
determination of net paid sales for the purposes hereunder shall be final and
binding upon the parties hereto unless Stone objects in writing to DLC to such
determination with 15 days of receipt by Stone of notice of any such
determination.
3. PRODUCT AND SERVICE PURCHASES. Each of MBM and Stone may
purchase products and services from each other at prices and on terms and
conditions as may be agreed between the parties from time to time and which are
no less
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favorable to MBM or Stone than would be obtained from an unaffiliated third
party.
4. STATUS AS INDEPENDENT CONTRACTOR. It is expressly understood
between the parties hereto that DLC shall be an independent contractor with
respect to the Services.
5. EXTENT OF DLC'S LIABILITY/INDEMNIFICATION BY STONE.
Notwithstanding anything to the contrary contained herein:
(a) Neither DLC nor MBM nor any of their respective officers,
directors, employees or agents shall be liable to Stone, any of its
shareholders, members, directors, officers, employees or agents for any action
taken or omitted to be taken with respect to the Services performed under this
Agreement or otherwise, except for any action in violation of this Agreement
taken or omitted to be taken by DLC in bad faith or as a result of wilful
misconduct.
(b) Stone agrees to indemnify DLC and/or its parent,
subsidiaries and their respective shareholders, directors, officers, employees
and agents (individually an "DLC Indemnitee," and collectively the "DLC
Indemnitees"), if an DLC Indemnitee is made, or threatened to be made, a party
to any action, claim or proceeding, whether civil or criminal, including any
action by or in the right of Stone, by reason of the provision of Services by
DLC to Stone pursuant to the terms of this Agreement, against judgments, fines,
amounts paid in settlement and reasonable expenses, including reasonable
attorneys' fees (collectively, "Losses"). The foregoing indemnity shall not
apply to any Losses to the extent such Losses resulted from the wilful
misconduct, negligence or bad faith of an DLC Indemnitee.
6. TERM. This Agreement will commence on the date hereof (the
"Commencement Date") and continue until the Closing Date (as defined in the
Merger Agreement) of the Merger (as defined in the Merger Agreement); provided,
however, that DLC may terminate it any time on not less than thirty (30) days
notice or immediately if the Break-Up Fee referred to in the Merger Agreement is
paid or is due and owing.
7. CONSENT TO JURISDICTION. The parties hereto irrevocably consent
and submit to the non-exclusive jurisdiction of the Supreme Court of the State
of New York in New York County and the United States District Court for the
Southern District of New York in connection with any action, proceeding or claim
arising out of or relating to this Agreement.
8. NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or
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other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
IF TO STONE OR ▇▇▇▇▇▇: COPIES TO:
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Stone Medical Supply Corp. Ruskin, Moscou, ▇▇▇▇▇ &
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Faltischek, P.C.
▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Mineola, N.Y. 11501
President Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
-and-
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
IF TO MBM OR DLC: COPIES TO:
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Diagnostic Leasing Corp. Otterbourg, Steindler,
c/o Micro Bio-Medics Inc. Houston & ▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ New York, N.Y. 10169
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
President
-and-
▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
c/o ▇▇▇▇▇▇ ▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
Great Neck, N.Y. 11021
Any party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any party may change the address to which notices, requests,
demands, claims, and other communications hereunder are to be delivered by
giving the other parties notice in the manner herein set forth.
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9. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties and supersedes any prior understandings, agreements,
or representations by or among the parties, written or oral, to the extent they
relate in any way to the subject matter hereof.
10. AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by all
of the parties. No waiver by any party of any default, misrepresentation, or
breach of warranty or covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
11. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of New York without giving
effect to any choice or conflict of law provision or rule (whether of the State
of New York or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of New York.
12. SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the parties named herein and their respective heirs,
legal representatives, successors and permitted assigns. No party may assign
either this Agreement or any of its rights, interests, or obligations hereunder
without the prior written approval of the other parties.
13. NO THIRD PARTY BENEFICIARIES. This Agreement shall not confer
any rights or remedies upon any person or entity other than the parties and
their respective successors and permitted assigns.
14. CAPTIONS. Captions and section headings used herein are for
convenience only, and are not a part of this Agreement, and shall not be used in
construing it.
15. SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will
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constitute one and the same instrument.
17. WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY WAIVE TRIAL BY
JURY IN ANY ACTION OR PROCEEDING OF ANY KIND WITH RESPECT TO, IN CONNECTION WITH
OR ARISING OUT OF THIS AGREEMENT, ANY INSTRUMENT, DOCUMENT OR GUARANTY DELIVERED
PURSUANT HERETO, OR THE VALIDITY, PROTECTION, INTERPRETATION, ADMINISTRATION,
COLLECTION OR ENFORCEMENT HEREOF.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date and year first above written.
DIAGNOSTIC LEASING CORP.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: President
STONE MEDICAL SUPPLY CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Title: President
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