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Virbac - Interim CEO Agreement with Executive Interim Management
EXHIBIT 10.26
[EIM LOGO]
EXECUTIVE INTERIM MANAGEMENT
The Daton Mariok Group, LLC
AGREEMENT FOR TEMPORARY MANAGEMENT SERVICES
This Agreement for Temporary Executive Services ("Agreement") is entered into as of the 16th day of December 2003, by and between Virbac Corporation (the "Client") and Executive Interim Management ("EIM");
WITNESSETH THAT:
WHEREAS, the parties desire to enter into this Agreement pertaining to the provision of temporary management services to the Client by EIM;
NOW, THEREFORE, in consideration of the mutual covenants and agreement set forth below, it is hereby covenanted and agreed by the Client and EIM as follows:
1. Assignment Term.
(a) This Agreement shall be effective from the 18th day of December
2003, to the 18th day of June 2004 (the "Assignment Term").
(b) The Assignment Term may be extended by a mutual writing of the
parties.
2. Provision of Services.
(a) EIM agrees to furnish to the Client a temporary manager to perform
services for the Client in the capacity of the Client's Interim CEO
for the period of the Assignment Term (the "Assignment").
(b) EIM agrees that the Assignment shall be performed by an EIM
independent contractor (the "Manager") who has been screened by EIM
for the Assignment. The Client shall retain the responsibility of
the final approval of the selection of the Manager.
(c) EIM shall maintain, at its expense, public liability insurance
covering the Manager.
(d) The Client acknowledges that EIM will be responsible for overseeing
the Assignment and providing the Manager to perform the Assignment,
and
450 Park Avenue, Suite 2000, New York, NY 10022 Tel: 212-751-4777 Fax: 212-751-4755
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that the Client's Board of Directors will be responsible for
supervising the Manager's performance of the Assignment.
(e) The Client acknowledges that the Manager shall be entitled to rely
on information provided by, and on the advice of, the Client's
officers, directors and employees and its accountants, legal counsel
and other professionals in performing the Assignment.
(f) The Client acknowledges that the Manager shall in no event be
authorized to, without the prior approval of the Client's Board of
Directors or a committee thereof delegated with the duty to
supervise the Manager, incur debt on behalf of the Client, guarantee
obligations on behalf of the Client, terminate agreements on behalf
of the Client, terminate the Client's Managers, transfer the
Client's assets (other than in the ordinary course of business),
settle claims by or against the Client for an amount over $10,000,
or conduct any other transactions outside the normal course of
business.
(g) EIM shall at all times remain an independent contractor with respect
to the Client. Nothing contained herein shall be construed to
create an agency relationship between the Client and EIM.
(h) The Client acknowledges that EIM assigns the Manager on the basis of
the Assignment. The Client shall not change the Assignment without
the prior written approval of EIM.
3. Payments.
(a) The Client shall pay EIM at the rate of $2,000 per working day for
the first three month period (December 18th 2003 through March 18th
20O4) and $2,500 per working day for the second three month period
(March 19th 2004 through June 18th 2004) in which services are
provided under this Agreement.
(b) The Client shall pay all sums due to EIM under this Agreement
monthly, in advance, within ten days from the date of invoice.
(c) The Client shall be liable to EIM for payment of any applicable
taxes (other than taxes based on income) due under this Agreement.
(d) The Client shall reimburse the Manager directly for reasonable
expenses for entertainment, travel, meals, lodging and similar items
in performing the Assignment. The Client acknowledges that EIM is in
no way responsible for the payment of these expenses and agrees to
indemnify EIM for any claim made by the Manager against EIM for
reimbursement of these expenses.
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4. Termination.
(a) This Agreement may be terminated by EIM during the Assignment Term
and by the Client during the first three months of the Assignment
Term only for Cause (as defined below). Following the first three
months of the Assignment Term the Client may terminate this
Agreement for any reason.
(b) This Agreement may be terminated during the Assignment Term only by
a written Notice of Termination communicated to the other party. If
the termination is for Cause, the Notice of Termination shall
provide a minimum of fourteen days in which to cure the Cause for
termination.
(c) Cause. As used herein, "Cause" means
(i) with respect to the conduct of either party or the Manager,
(A) a material breach of this Agreement by such party;
(B) the gross negligence or willful misconduct by such party
or the Manager, which is demonstrably and materially
harmful to the other party, monetarily or otherwise; or
(C) the commencement by or against such party under any
bankruptcy, reorganization arrangement, or similar law,
the making of an assignment for the benefit of creditors
or the petition or application for a custodian, receiver
or trustee for such party or its assets;
(ii) with respect to the conduct of the Client,
(A) the Client's unjustified termination of the Manager or
the Assignment during the first three months of the
Assignment Term; or
(B) the Client's failure to make a timely payment under
this Agreement within five (5) days of notice of such
non-payment; and
(iii) with respect to the conduct of EIM, the Manager's non-
performance of the Assignment due to death, illness or other
unexcused absence which lasts for more than seven days and
EIM's a failure to replace the Manager within thirty (30) days
of such death, disability or unexcused absence.
450 Park Avenue, Suite 2000, New York, NY 10022 Tel: 212-751-4777 Fax: 212-751-4755 www.interimmgt.us
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(d) Payments on Termination.
(i) If the Client terminates this Agreement for Cause during the
first three months of the Assignment Term or for any reason
thereafter, the Client shall be liable for payments pursuant
to paragraph 3 of this Agreement only up to the date of
termination.
(ii) If EIM terminates this Agreement for Cause, the Client shall
be liable for payments pursuant to paragraph 3 of this
Agreement for the entire Agreement Term as if this Agreement
had not been terminated.
5. Liability. EIM shall be liable to the Client for any damages sustained by
the Client as a direct result of the willful misconduct in the performance
of the Assignment on the part of EIM or the Manager. EIM shall not be
liable for any consequential or punitive damages.
6. Indemnification.
(a) The Client shall indemnify EIM and its Affiliates (as defined
below), and each of EIM's and its Affiliates' partners, members,
officers directors, Managers and agents, against any losses,
liabilities, damages or expenses (including amounts paid for
attorneys' fees, judgments and settlements in connection with any
threatened, pending or completed action, suit or proceeding) to
which any of such persons may become subject in connection with the
services contemplated by this Agreement or in connection with any
involvement with the Client (including serving as an officer,
director, consultant or employee of the Client or any subsidiary or
affiliate of the Client) directly or indirectly on behalf of the
Client, but, in each case, only to the extent that such person was
neither grossly negligent nor engaged in willful malfeasance and,
with respect to any criminal action, such person did not have
reasonable cause at the time of such action to believe that such
person's conduct was unlawful. the Client shall pay the expenses of
any person indemnifiable under this paragraph 6 in advance of the
final disposition of any proceeding, so long as the Client receives
an undertaking by such person to repay the full amount advanced if
there is a final determination that such person did not satisfy the
standards of indemnifiable conduct set forth in this paragraph 6 or
that such person is not otherwise entitled to indemnification as
provided herein. In addition to and not in limitation of the rights
to indemnification provided above, in connection with the duties as
an employee, officer or director of the Client of any person
indemnifiable under this paragraph 6, such person is also entitled
to the fullest indemnity allowed under the laws of the State of
Delaware.
(b) The Client shall provide a letter of indemnity (in the form of
Exhibit A) to any Manager who performs the Assignment.
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(c) For the purposes of this Agreement, the term "Affiliate" means (i)
any corporation, partnership, joint venture or other entity that
owns directly or indirectly, at least fifty percent of the voting
power of any class of stock of EIM (or successor to EIM) entitled to
vote; and (ii) any corporation, partnership, joint venture or other
entity during any period in which at least a fifty percent voting or
profits interest is owned, directly or indirectly, by EIM, by any
entity that is a successor to EIM, or by any entity that is an
Affiliate by reason of clause (i) next above.
7. Non-Competition.
(a) EIM shall take reasonable steps to enter into an agreement with the
Manager providing that the Manager shall not accept an engagement
with a business in competition with the Client's animal
pharmaceuticals business or otherwise compete with the Client for a
period of at least one year following the last day on which the
Manager provides services for the Client.
(b) In the event that the Client offers employment of any sort to the
Manager during the Assignment or within one year of the termination
of this Agreement, and the Manager accepts employment with the
Client, the Client shall pay to EIM an amount of $150,000, plus the
amount payable under paragraph 3 for any remainder of the Assignment
Term,
8. Confidential Information.
(a) EIM agrees that:
(i) Except as required by the lawful order of a court or agency
of competent jurisdiction, or except to the extent that EIM
has express authorization from the Client, EIM agrees to keep
secret and confidential all Confidential Information (as
defined below), and not to disclose the same, either directly
or indirectly, to any other person, firm, or business entity,
or to use it in any way.
(ii) To the extent that any court or agency seeks to have EIM
disclose Confidential Information, EIM shall promptly inform
the Client, and EIM shall take such reasonable steps to
prev...
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