CONSULTING AGREEMENT
CONSULTING AGREEMENT (this "Agreement"), dated as of April 23, 1998,
between Global Health Sciences, Inc., a California corporation (the "Company"),
and BGA Consulting ("Consultant").
W I T N E S S E T H :
WHEREAS, simultaneously herewith the Company has entered into an
Agreement and Plan of Reorganization providing for, among other things, the
reorganization (the "Reorganization") of the Company's current business
structure; and
WHEREAS, the Company desires to retain the Consultant to provide the
consulting services described herein to facilitate the operations of the Company
following the Reorganization, and the Consultant desires to provide such
services in such capacity to the Company, on the terms and subject to the
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and obligations hereinafter set forth, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. Engagement. Upon the terms and subject to the conditions set
forth in this Agreement, the Company hereby engages Consultant to serve as a
consultant to the Company, and Consultant hereby accepts such engagement.
2. Term.
(a) The term of this Agreement shall commence on April 23, 1998 and
shall continue until April 22, 2001 (the "Term"), unless otherwise terminated as
provided in Section 9 herein.
(b) Any due but unpaid Consulting Fee (as hereinafter defined) and
any reimbursement for expenses permitted under Section 5 hereof shall be paid by
the Company to Consultant within ten (10) business days after any such
termination.
3. Duties of Consultant. During the term of this Agreement,
Consultant shall furnish to the Company and its subsidiaries such advisory and
consulting services or undertake such special assignments within the area of its
experience as may be requested from time to time by the Chairman of the Board of
Directors of the Company or the Chief Executive Officer, including, without
limitation, advice on matters relating to the Company and its operations,
post-Reorganization transition matters, acquisition strategies and other
projects.
4. Compensation. During the term of this Agreement, on a monthly
basis, as compensation for the services rendered by Consultant hereunder, the
Company shall pay to Consultant an annual consulting fee (the "Consulting Fee")
in an amount equal to four hundred thousand dollars ($400,000).
5. Expenses. The Company will reimburse Consultant for all
reasonable documented business expenses actually incurred by Consultant in the
course of Consultant's performance of its duties hereunder.
6. Assignment.
(a) The rights and obligations of the Company under this Agreement
shall inure to the benefit of, and shall be binding upon, the successors and
assigns of the Company.
(b) In view of the personal nature of the services to be performed
by Consultant under this Agreement, the rights and obligations of Consultant
under this Agreement may not be assigned by Consultant unless the Company gives
its express written consent to such assignment.
7. Independent Contractor.
(a) In performing its duties under this Agreement, Consultant shall
be an independent contractor. Consultant accepts exclusive and sole
responsibility for payment of any and all taxes and insurance (including but not
limited to unemployment insurance and/or disability insurance) it may owe to any
governmental authority, with respect to or on account of any payments made or
actions taken by the Company under this Agreement. Company shall not withhold
any federal, state or local taxes (or insurance) of any nature on behalf of
Consultant from the compensation to be received by Consultant hereunder.
Consultant shall indemnify and hold harmless the Company and its subsidiaries
from any liability, claims and demands for payment of taxes, penalties or
interest, social security, disability benefits and other withholdings,
deductions and/or payments that may be imposed by any governmental authority, or
otherwise authorized, based upon or required by reason of the payments made to
Consultant as provided in this Agreement.
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(b) The parties acknowledge and agree that Consultant is not
entitled to any employee benefits provided by the Company to its employees and
is not entitled to participate in any employee benefit plan or arrangement
sponsored by the Company for the benefit of its employees.
(c) Consultant shall have no authority to enter into contracts on
behalf of the Company or otherwise to bind or commit the Company to agreements
of any kind.
8. Confidential Information.
(a) The parties acknowledge and agree that, in connection with the
services to be provided under this Agreement, Consultant will have access to
Confidential Information (as hereinafter defined).
(b) "Confidential Information" shall mean (i) certain confidential
and proprietary information relating to the designing, development and
manufacturing of dietary and nutritional supplements and (ii) any and all
information relating to the business and affairs of the Company or any of its
subsidiaries, customers or suppliers which is acquired by Consultant in
connection with the performance of his duties hereunder. However, the term
"Confidential Information" shall not include any information or documents that
(x) are or become publicly available without breach by the Consultant of Section
8(c) hereof, (y) Consultant receives from any third party who, to the best of
Consultant's knowledge upon reasonable inquiry, is not in breach of an
obligation of confidence with the Company or any of its affiliates, or (z) is
required to be disclosed by law, statute, governmental or judicial proceeding;
provided, however, that in the event Consultant is requested by any governmental
or judicial authority to disclose any Confidential Information, Consultant shall
give the Company prompt notice of such request, such that the Company may seek a
protective order or other appropriate relief, and in any such proceeding
Consultant shall disclose only so much of the Confidential Information as is
required to be disclosed.
(c) Consultant agrees (i) to hold the Confidential Information in
strict confidence and shall not disclose such Confidential Information to any
person, firm, partnership, association, corporation or other entity, during and
after the term of this Agreement and (ii) not to make use of any Confidential
Information of the Company other than as necessary in the performance of this
Agreement.
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(d) Upon termination of this Agreement by either party, or upon the
request of the Company during the term of this Agreement, Consultant will return
to the Company all property, lists, information, memoranda, and documents
containing Confidential Information of the type described in Section 8(b)(ii)
hereof and all property belonging to the Company in Consultant's possession or
subject to Consultant's control, and Consultant shall not retain any copies,
abstracts, formulae, diagrams or other physical embodiment of any Confidential
Information of the type described in Section 8(b)(ii) hereof.
9. Termination. This Agreement will be terminated in the event that
the employment by the Company of Xx. Xxxx Xxxxxxx is terminated pursuant to the
terms and conditions of that certain Employment Agreement dated as of April 23,
1998 by and between Xx. Xxxxxxx and the Company.
10. Complete Understanding; Amendment. This Agreement constitutes
the entire agreement and understanding of the parties hereto in respect of the
matters set forth herein. This Agreement may not be altered, modified, amended
or rescinded except in writing, signed by the parties hereto.
11. Severability. In case any one or more of the provisions shall be
invalid, illegal or unenforceable in any respect, such provisions shall be
ineffective to the extent of such invalidity, illegality or unenforceability and
the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected thereby.
12. Notices. All notices to the Company or the Consultant permitted
or required hereunder shall be in writing and shall be delivered personally, by
facsimile transmission or by courier service providing for next-day delivery or
sent by registered or certified mail, return receipt requested, to the following
addresses:
The Company:
Global Health Sciences, Inc.
000 Xxxxxxxxxx Xxx
Xxxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx
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with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
The Consultant:
BGA Consulting
with a copy to:
____________________________________
____________________________________
____________________________________
____________________________________
Either party may change the address to which notices shall be sent by sending
written notice of such change of address to the other party. Any such notice
shall be deemed given, if delivered personally, upon receipt; if sent by
facsimile, when transmitted; if sent by courier service providing for next-day
delivery, the next business day following deposit with such courier service; and
if sent by certified or registered mail, 3 days after deposit (postage prepaid)
with the U.S. mail service.
13. Section Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
14. Governing Law. This Agreement shall be subject to, and governed
by, the laws of the State of California applicable to contracts made and to be
performed in the State of California.
(signature page follows)
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IN WITNESS WHEREOF, the Company and Consultant have executed this
Agreement as of the date first above written.
GLOBAL HEALTH SCIENCES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: President
BGA CONSULTING
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: President
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