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
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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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www.interimmgt.us
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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.
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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' f ...
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