EXHIBIT 10.30
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MANAGEMENT SERVICES AGREEMENT
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THIS MANAGEMENT SERVICES AGREEMENT (this "Agreement") is made as of
January 2, 2002, by and between WESTGATE GROUP, LLC, a Missouri limited
liability company ("Provider"), and NATURADE, INC., a Delaware corporation (the
"Company").
RECITALS
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A. The Provider has agreed to perform the services for the Company set
forth herein pursuant to the terms hereof. Xxx X. Xxxxx, Xxx X. Xxxx, Xxxxxxx X.
Xxxxxxx and Xxxxxx X. Xxxxxx are the principals of Provider and are referred to
herein collectively as the "Principals."
B. In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows.
AGREEMENT
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Section 1. Services. The Provider agrees to provide management and
consulting services to the Company pursuant to the terms hereof, and the
Provider shall cause the Principals to devote a portion of their time and
attention to the management of the Company. The management and consulting
services shall include the following: (a) business strategy and development; (b)
general executive services including, without limitation, periodic advice and
consultation with respect to the Company's business affairs; (c) acquisition and
divestiture strategies (including the identification, analysis and negotiation
of potential acquisitions and divestitures); (d) financial budgeting; (e) debt
and equity financings; (f) employee and personnel services; (g) treasury, credit
and audit services; (h) purchasing and marketing services; and (i) such other
corporate, managerial and related services as the Company may from time to time
reasonably request.
Section 2. Term. The Provider shall provide the services set forth in
Section 1 hereof from the date hereof until December 31, 2006, and the term
hereof shall thereafter be automatically renewed and extended for successive one
year terms unless terminated upon 90 days prior notice by either party hereto;
provided, however, that, notwithstanding the foregoing, this Agreement shall
terminate at such time as Westgate Equity Partners, L.P., a Delaware general
partnership of which the Provider is the general partner, shall, in aggregate
with its affiliates and associates (as such terms are defined in Rule 405
promulgated under the Securities Act), own less than ten percent (10%) of the
outstanding voting securities of the Company.
Section 3. Compensation.
(a) Fees. In consideration for the services performed hereunder, the
Company shall pay fees (the "Management Fees") to the Provider in an amount
equal to $100,000 per year, one-fourth (1/4) of which shall be payable in
advance on the first day of each January, April, July and October; commencing on
January 1, 2002; provided, however, that the Management Fees in the amount of
$25,000 for the period commencing on the date hereof and ending March 31, 2002,
shall be payable on the date hereof. The amount of the Management Fees shall be
increased from time to time in an amount mutually satisfactory to the Provider
and the Company in the event that, during the term of this Agreement, the
business or assets of the Company shall change in any material respect due to
acquisitions or other extraordinary transactions.
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(b) Reimbursement of Expenses. The Company also shall reimburse the
Provider for all reasonable out-of-pocket costs and expenses incurred in
connection with services rendered hereunder. Such costs and expenses shall be
reimbursed promptly by the Company upon submission of customary expense reports.
Section 4. Indemnification. The Company shall indemnify and hold
harmless the Provider, each of its controlling persons and each director,
manager, officer and employee thereof from and against any and all losses,
claims, liabilities, suits, costs, damages and expenses (including attorneys'
fees) arising from their performance hereunder, except as a result of their
gross negligence or intentional wrongdoing.
Section 5. Representations.
(a) The Provider hereby represents and warrants to the Company that (i)
the execution, delivery and performance of this Agreement by the Provider does
not conflict with, breach, violate or cause a default under any contract,
agreement, instrument, order, judgment or decree to which the Provider is a
party or by which it is bound, and (ii) upon the execution and delivery of this
Agreement by the Company, this Agreement shall be the valid and binding
obligation of the Provider, enforceable in accordance with its terms.
(b) The Company hereby represents and warrants to the Provider that (i)
the execution, delivery and performance of this Agreement by the Company does
not conflict with, breach, violate or cause a default under any contract,
agreement, instrument, order, judgment or decree to which the Company is a party
or by which it is bound, and (ii) upon the execution and delivery of this
Agreement by the Provider, this Agreement shall be the valid and binding
obligation of the Company, enforceable in accordance with its terms.
Section 6. Independent Contractor. The Provider and the Company agree
and acknowledge that the Provider shall perform services hereunder as an
independent contractor, retaining control over and responsibility for its own
operations and personnel. Neither the Provider nor its employees shall be
considered employees or agents of the Company as a result of this Agreement or
the services provided hereunder.
Section 7. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
Section 8. Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
Section 9. Waiver of Breach. The waiver by either party of a breach of
any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach of that provision or any other
provision hereof.
Section 10. Successors and Assignment. This Agreement is intended to
bind and inure to the benefit of and be enforceable by the Provider, the Company
and their respective successors and assigns, except that neither the Provider
nor the Company may assign its rights or obligations under this Agreement
without the express written consent of the other.
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Section 11. Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement shall be governed by the internal
law, and not the law of conflicts, of the State of Missouri.
Section 12. Counterparts. This Agreement may be executed in multiple
counterparts, any of which need not contain the signatures of more than one
party, but all such counterparts taken together shall constitute one and the
same Agreement.
Section 13. Notices. Any notice, report or payment required or
permitted to be given or made under this Agreement by one party to the other
shall be deemed to have been duly given or made if personally delivered or, if
mailed, when mailed by registered or certified mail, postage prepaid, to the
other party at the following addresses (or at such other address as shall be
given in writing by one party to the other):
Notices to the Provider:
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Westgate Group, LLC
0000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Notices to the Company:
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Naturade, Inc.
00000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or mailed.
Section 14. Entire Agreement; Modification. This Agreement contains the
complete and entire understanding and agreement of the parties hereto with
respect to the subject matter hereof, supersedes all prior and contemporaneous
understandings, conditions and agreements, oral or written, express or implied,
respecting the subject matter hereof and may not be modified except by an
instrument in writing executed by the parties hereto.
[the next page is the signature page]
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IN WITNESS WHEREOF, the undersigned have executed this Management
Services Agreement as of the date first written above.
WESTGATE GROUP, LLC
By:
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Name: Xxxxxx X. Xxxxxx
Title: Manager
NATURADE, INC.
By:
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Name: Xxxx X. Xxxxxxx
Title: President and Chief Executive Officer
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