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EXHIBIT 10.4
[EUROMED LETTERHEAD]
TRANSLATION OF THE CONTRACT ORIGINALLY PROVIDED IN
THE DUTCH LANGUAGE. THE DUTCH TEXT IS BINDING.
Ref.: EUR/MANAG.AGR.FILE B.V.
MANAGEMENT AGREEMENT
The undersigned:
1. EUROMED EUROPE B.V., established in Oosterhout, hereby represented by
its statutory director B.V. Wisteria, (hereafter "EuroMed B.V.");
2. BEHEER-EN BELEGGINGSMAATSCHAPPIJ FILE B.V., established in Wassenaar,
Jonkerlaan 72, 2242 GG, (hereafter: "File B.V.");
CONSIDERING:
a. EuroMed B.V., subsidiary of EuroMed, Inc., a company according to the
State of Nevada (United States) Law, ("EuroMed"), is the Dutch holding
company of the subsidiaries of EuroMed;
b. EuroMed B.V. maintains 100% of the shares in Confedera B.V.
("Confedera") and Galenica B.V. ("Galenica") and 100% of the shares in
Mutarestes B.V. ("Mutarestes"), which company in its turn maintains 100%
of the shares in Pluripharm International B.V. ("Pluripharm"), which in
its turn maintains 100% of the shares in Financieringsmaatschappij De
Nieuwe Wereld ("DNW");
c. Confedera, Galenica and Pluripharm are the Subsidiaries ("the
Subsidiaries") within the EuroMed Group occupied with the wholesale of
pharmaceutical products;
d. EuroMed B.V. wishes to assure by entering into this management agreement
that a person will be available who during a certain period will be
responsible for the day to day management of its subsidiaries;
e. In that respect File B.V. is prepared and capable to meet this
requirement on behalf of EuroMed B.V. and its subsidiaries, by making a
qualified person available to EuroMed B.V. on the following conditions;
AGREE AS FOLLOWS:
Article 1. Activities
1.1 For the term of this agreement (the "Agreement") File B.V. will make a
manager available to EuroMed B.V., namely Mr. R.W.L. Xxxxxxx (hereafter
"Manager"). EuroMed B.V. and its Subsidiaries declare to accept this
Manager and have him carry out the activities that are specified in the
Agreement. At first the activities will mainly consist of the management
of the Mutarestes and/or Pluripharm subsidiaries and the integration of
these companies with Galenica.
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1.2 If necessary for the conduct of business, EuroMed B.V. will consult with
File B.V. in case they find that the activities of the Manager need to
be adjusted.
1.3 To carry out its activities File B.V. will be appointed managing
director of EuroMed B.V. and will function as managing director for the
term of the Agreement. On behalf of its activities File B.V. as managing
director shall be represented by Manager.
1.4 Considering that Manager has been made available by File B.V. to EuroMed
B.V., the parties explicitly acknowledge that Manager is not in service
of EuroMed B.V., nor of some kind can be considered as an employee of
EuroMed B.V.
1.5 The Subsidiaries have accepted the obligation to Manager to give him the
authority and cooperation necessary for a good performance of his
activities.
Article 2. Compensation
2.1 EuroMed B.V. shall pay File B.V. a management fee of fl 200,000 excl.
sales tax per year for its services, as well as an expense allowance of
fl 3,000 excl. sales tax a month. EuroMed B.V. shall pay the allowances
in 12 equal terms over the year. File B.V. will present EuroMed B.V. an
invoice once a month in which also the activities of Manager will be
explained. EuroMed B.V. should pay the invoice within 30 days.
Between EuroMed B.V. and the Subsidiaries it will be further agreed on
which Subsidiaries' charge the financial obligation on behalf of the
Agreement will be placed.
2.2 File B.V. will attend to a correct fulfillment of all its duties
regarding sales tax, wage tax and social security payments with regard
to Manager. File B.V. indemnifies EuroMed B.V. from all possible claims
from the exchequer and/or the corporation's association toward EuroMed
B.V. in case they take the position that EuroMed B.V. as regards Manager
is responsible for withholding salary tax and/or social security
payments, raises, penalties and interest included.
2.3 In case Manager for what ever reason should not be able to carry out his
task for EuroMed B.V. for a period longer than two weeks and suitable
replacement has not been provided, EuroMed B.V. is relieved from its
duty of payment of compensation, starting from the third week for the
period of the default, with exception of the compensation for the
reasonably made expenses, that in spite of the absence of Manager have
occurred and can not be undone, unless the expenses are made within the
appointed activities.
Article 3. Term of the Agreement
3.1 The Agreement will start on January 1, 1997 for the period of one year
and therefor legally end on December 31, 1997, without requiring any
action of the parties.
3.2 Prolongation of the Agreement is only possible in case both parties
decide to do so in writing.
3.3 The Agreement can be terminated immediately, in case:
a. File B.V. or EuroMed B.V. are declared bankrupt or a suspension
of payment has been granted to File B.V. or EuroMed B.V.;
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b. Manager dies, is being declared bankrupt or a suspension of
payment has been granted for Manager or Manager in case of
illness or otherwise during a period of three successive months
more than forty-five days has not been capable to meet his
obligations as mentioned under article 1.
3.4 File B.V. and EuroMed B.V. are qualified to dissolve the Agreement in
case a party does not meet an obligation of the Agreement properly, not
in good time or not at all.
Article 4. Indemnification
4.1 File B.V. and Manager shall as well towards EuroMed B.V., as towards
third parties, not be liable for any damages, caused by actions or
omission by Manager, performed within his formal competence's, unabated
the liability for damages caused by willful misconduct or gross
negligence of File B.V. and/or Manager.
4.2 EuroMed B.V. indemnifies File B.V. and Manager in case of liability of
File B.V. and/or Manager towards third parties for actions or omissions
of Manager, performed within his formal competence's, unless the
liability has occurred by willful misconduct or gross negligence of File
B.V. and/or Manager.
Article 5. Non compete conditions
5.1 File B.V., nor its direct or indirect shareholder, shall during the
effective period of the Agreement till three months after ending of the
Agreement within the Benelux not develop activities, direct or indirect,
through corporation or otherwise, alone or in cooperation with others,
that in some way could compete with the activities of EuroMed B.V.,
other than activities with regard to exploit pharmacies. File B.V., nor
its direct of indirect shareholder, shall not invest in competitive
corporations. The existing interests at the time of signing this
Agreement can be maintained.
5.2 In case of breach of the under article 5.1 mentioned non compete
conditions, File B.V. will be fined with fl 100,000 for each breach with
a raise of fl 10,000 per day that the breach after default continues.
Manager is liable for this fine besides File B.V.
Article 6. Confidentiality agreement
6.1 File B.V. shall maintain confidentiality during the time of the
Agreement and thereafter, with regard to the knowledge concerning
businesses and interests of EuroMed B.V. and the corporations connected
with EuroMed B.V. among which especially (but not exclusively) is
concluded the knowledge about operational margins and discounts and the
relationships with customers.
6.2 There will be no secrecy agreement with regard to businesses and
interests that are known in public, of general use, or whether insight
is gained through third parties, by means of publication and so on, or
become public knowledge through no fault of File B.V.
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6.3 Notwithstanding the way the Agreement will be ended, File B.V. shall
return all properties of EuroMed B.V. and its subsidiaries, among which
is concluded (but not exclusively) all information files, copies, books
and documents that consist of data of EuroMed B.V. and its subsidiaries.
Article 7. Intellectual property
7.1 During the term of the Agreement, the intellectual proprietary rights
with regard to by or in cooperation with EuroMed B.V. developed new
products shall be deposited with EuroMed B.V. and where necessary be
handed over unconditionally to EuroMed B.V., and unconditionally
accepted by EuroMed B.V.
7.2 File B.V. shall in no way, direct or indirect, through corporations or
otherwise use the industrial proprietary rights which in the past are
applied or yet are being applied by EuroMed B.V. for the practice of the
company of EuroMed B.V.
Article 8. Commitment Manager
8.1 File B.V. guarantees that the statements mentioned in articles 5, 6 and
7 shall be of similar relevance to Manager. As a sign of approval and
his commitment to these points, Manager shall also sign this Agreement.
Article 9. Invalid definitions
9.1 In case one or more articles of this Agreement should be invalid or in
another way should not be binding, then the validity of the other
articles of this Agreement shall not be affected. Parties shall then
adjust the Agreement in mutual consideration in the sense that the
not-binding articles are being replaced by other definitions that are as
less different as possible from the relevant not-binding articles.
Article 10. Applicable law and choice of forum
10.1 The Dutch Law is applicable to this Agreement. Each dispute resulting
from this Agreement shall exclusively be submitted to the judgment of
the competent judge at the district-court of Breda.
Article 11. Supplementary conditions
11.1 The Subsidiaries accept severally liability of the payment conditions of
EuroMed B.V. under the Agreement.
11.2 Carrying out the management tasks the reasonable interests of the
subsidiaries of EuroMed B.V. should always be observed, thus that the
activities on account of the Agreement shall not be harmful for the
other subsidiaries.
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11.3 a. Manager commits himself to regular, yet at least once a month, consult
with the directors of Mutarestes and/or Pluripharm, Galenica and
Confedera about the course of business and with regard to the policies
to be followed.
11.3 b. File B.V. shall as soon as possible and to be submitted for approval by
the directors of Mutarestes and/or Pluripharm, Galenica and Confedera
set up a business plan ("Business plan") for the financial year 1997.
11.3 c. If and as soon as File B.V. notices that the actual developments of
EuroMed B.V. and its Subsidiaries are likely to deviate from the
Business plan, then File B.V. shall communicate this as soon as possible
with the directors of Mutarestes and/or Pluripharm, Galenica and
Confedera. Then shall be decided in mutual consideration about the
measures to be taken and, where necessary, the Business plan for the
relevant year be adjusted.
11.4 Manager accepts that with regard to the actions to be mentioned
hereafter regarding EuroMed B.V. and its subsidiaries the explicit
approval of the directors of Mutarestes and/or Pluripharm, Galenica and
Confedera is required for:
a. the contracting or firing of employees or the adjustment of the
working conditions, other than the replacement of existing
employees;
b. changing bank relations or the conditions that are already
entered into by the relative cooperation. (It is known to
Manager that the offer of Banque Paribas has already been
accepted by the Board of Directors);
c. contracting transaction above the amount of fl 100,000;
d. settlement of any kind of claim above the amount of fl 30,000;
e. acquisition or disposal of participation's in other companies.
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[EUROMED LETTERHEAD]
Thus drawn up and signed in twofold in Oosterhout dated 21 January 1997.
EUROMED EUROPE B.V. BEHEER-EN BELEGGINGS-
B.V. WISTERIA, DIRECTOR MAATSCHAPPIJ FILE B.V.:
/S/ X.X. XXXXXX /S/ X. XXXXXXX
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X.X. XXXXXX R.W.L. XXXXXXX
DIRECTOR
FOR THE ARTICLES 5, 6, 7, 11.2, 11.3 AND 11.4
/S/ X. XXXXXXX
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R.W.L. XXXXXXX
EuroMed, Inc. guarantees the fulfillment of this agreement by EuroMed B.V. and
its subsidiaries
EUROMED, INC.:
/S/ XXXXXX X. XXXXX
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X.X. XXXXX, CEO
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