MANAGEMENT AGREEMENT
This Management Agreement (the "Agreement") is made and entered into as
of the 21st day of July, 1997 by and between PDK Labs Inc., a New York
corporation ("PDK"), and Superior Supplements, Inc., a Delaware corporation
("SSI").
W I T N E S S E T H:
WHEREAS, PDK maintains an experienced bookkeeping, order processing and
computer facility at its headquarters; and
WHEREAS, SSI is a corporation engaged in the business of manufacturing
and distributing certain vitamins and food supplements in bulk tablet form; and
WHEREAS, PDK and SSI desire that PDK provide SSI with certain
management services in consideration for the fees described herein.
NOW, THEREFORE, the parties for good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, agree as follows:
1. Management Services. PDK shall provide to SSI management services
(the "Services"), including
(i) bookkeeping;
(ii) order processing; and
(iii) computer services.
2. Cooperation by the Parties. SSI shall cooperate fully with PDK so
that PDK may render the services in a timely and professional manner. SSI shall
at all times provide PDK with access to (i) the books and records of SSI, (ii)
the employees of SSI and its outside advisors or consultants and (iii) any other
materials PDK may reasonably request in order to render the services. If at any
time the services to be rendered by PDK shall in any way conflict with a current
or proposed policy, practice or approach conducted or proposed to be conducted
by SSI, PDK shall have the right to pursue and implement its service in lieu of
such policy, practice or approach of SSI. PDK agrees to periodically provide SSI
with information regarding the services rendered by PDK.
3. Fees and Disbursements. In full consideration for the Services, for
each calendar month of this Agreement (pro-rated for each part thereof), SSI
shall pay PDK Ten
Thousand Dollars ($10,000); provided that, if PDK is required to provide
additional services in connection with special projects or unanticipated
services, PDK shall be entitled to charge an additional fee. All payments made
hereunder shall be made, within thirty (30) days of receipt by SSI of an invoice
from PDK.
4. Representations and Warranties of SSI. SSI represents and warrants
to PDK as follows:
4.1 Organization and Qualification. SSI is a corporation validly
existing and in good standing under the laws of the State of Delaware, and has
all requisite corporate power and authority to (a) own, lease and operate its
properties and assets as they are now owned, leased and operated and (b) carry
on its business as now presently conducted. SSI is duly qualified to do business
in each jurisdiction in which the nature of its business or properties makes
such qualification necessary, except where the failure to do so would not have a
material adverse effect on the business of SSI.
4.2 Subsidiaries. SSI has no subsidiaries.
4.3 Validity and Execution of Agreement. SSI has the full legal right,
capacity and power and all requisite corporate authority and approval required
to enter into, execute and deliver this Agreement and any other agreement or
instrument contemplated hereby, and to perform fully its obligations hereunder
and thereunder. The board of directors of SSI has approved the transactions
contemplated pursuant to this Agreement. This Agreement has been duly executed
and delivered by SSI and constitutes the valid and binding obligation of SSI
enforceable against it in accordance with its terms.
4.4 No Conflict. Neither the execution and delivery of this Agreement
nor the performance by SSI of the transactions contemplated hereby will violate
or conflict with: (a) any of the provisions of the Articles of Incorporation or
By-laws or other organizational documents of SSI; (b) or result in the
acceleration of, or entitle any party to accelerate the maturity or the
cancellation of the performance of any obligation under, or result in the
creation or imposition of any lien in or upon their respective assets or
constitute a default (or an event which might, with the passage of time or the
giving of notice, or both, constitute a default) under any contract, (c) any
order, judgment, regulation or ruling of any governmental or regulatory body to
which SSI is a party or by which any of its property or assets may be bound or
affected or with any provision of any law, rule, regulation, order, judgment, or
ruling of any governmental or regulatory body applicable to SSI.
4.5 Licenses and Permits. SSI maintains all governmental permits,
licenses, registrations and other governmental consents (federal, state and
local) which are necessary in connection with its operations and properties, and
no others are required. All such permits, licenses, registrations and consents
are in full force and effect and in good standing and shall
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continue to be in full force and effect and in good standing following the
consummation of the transactions contemplated by this Agreement.
4.6 Compliance with Laws. SSI has complied in all respects with all
applicable federal, state and local laws, regulations and ordinances or any
requirement of any governmental or regulatory body, court or arbitrator
affecting the business or the assets the failure to comply with which could have
a material adverse effect on the business of SSI.
4.7 Products. There are no statements, citations or decisions by any
governmental or regulatory body that any product marketed or distributed at any
time by SSI ("Product") is defective or fails to meet in any material respect
any standards promulgated by any such governmental or regulatory body. There
have been no recalls ordered by any such governmental or regulatory body with
respect to any product. To the best knowledge of SSI, there is no (a) fact
relating to any product that may impose upon SSI a duty to recall any product or
a duty to warn customers of a defect in any product, other than defects about
which SSI has issued appropriate and adequate warnings or (b) latent or overt
design, manufacturing or other defect in any product.
4.8 Survival. All of the representations and warranties of SSI
contained herein shall survive the date hereof until the date upon which the
liability to which any claim relating to any such representation or warranty is
barred by all applicable statutes of limitations.
5. Representations and Warranties of PDK. PDK represents and warrants
to SSI as follows:
5.1 Organization and Qualification. PDK is a corporation validly
existing and in good standing under the laws of the State of New York, and has
all requisite corporate power and authority to (a) own, lease and operate its
properties and assets as they are now owned, leased and operated and (b) carry
on its business as now presently conducted. PDK is duly qualified to do business
in each jurisdiction in which the nature of its business or properties makes
such qualification necessary, except where the failure to do so would not have a
material adverse effect on the business of PDK.
5.2 Validity and Execution of Agreement. PDK has the full legal right,
capacity and power and all requisite corporate authority and approval required
to enter into, execute and deliver this Agreement and any other agreement or
instrument contemplated hereby, and to perform fully its obligations hereunder
and thereunder. The board of directors of PDK has approved the transactions
contemplated pursuant to this Agreement. This Agreement has been duly executed
and delivered by PDK and constitutes the valid and binding obligation of PDK
enforceable against it in accordance with its terms.
5.3 No Conflict. Neither the execution and delivery of this Agreement
nor the performance by PDK of the transactions contemplated hereby will violate
or conflict with: (a)
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any of the provisions of the Articles of Incorporation or By-laws or other
organizational documents of PDK; (b) or result in the acceleration of, or
entitle any party to accelerate the maturity or the cancellation of the
performance of any obligation under, or result in the creation or imposition of
any lien in or upon their respective assets or constitute a default (or an event
which might, with the passage of time or the giving of notice, or both,
constitute a default) under any contract, (c) any order, judgment, regulation or
ruling of any governmental or regulatory body to which PDK is a party or by
which any of its property or assets may be bound or affected or with any
provision of any law, rule, regulation, order, judgment, or ruling of any
governmental or regulatory body applicable to PDK.
5.4 Licenses and Permits. PDK maintains all governmental permits,
licenses, registrations and other governmental consents (federal, state and
local) which are necessary in connection with its operations and properties, and
no others are required. All such permits, licenses, registrations and consents
are in full force and effect and in good standing and shall continue to be in
full force and effect and in good standing following the consummation of the
transactions contemplated by this Agreement.
5.5 Compliance with Laws. PDK has complied in all respects with all
applicable federal, state and local laws, regulations and ordinances or any
requirement of any governmental or regulatory body, court or arbitrator
affecting the business or the assets the failure to comply with which could have
a material adverse effect on the business of PDK.
5.6 Survival. All of the representations and warranties of PDK
contained herein shall survive the date hereof until the date upon which the
liability to which any claim relating to any such representation or warranty is
barred by all applicable statutes of limitations.
6. Term of Agreement. The term of this Agreement shall commence on the
date hereof and shall continue for a period of one (1) year and thereafter will
be automatically renewed for successive one (1) year terms unless either party
provides written notice of intent to terminate the Agreement at least ninety
(90) days prior to the end of any contract year.
7. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without regard to
principles of conflicts of law, and the parties irrevocably agree to submit any
controversy or claim arising out of or relating to this Agreement to a court of
competent jurisdiction located in the State of New York. This Agreement may be
executed simultaneously in counterparts, each of which will be deemed to be an
original but all of which together will constitute one and the same instrument.
The invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect. This Agreement contains the entire
understanding of the parties hereto with respect to its subject matter. This
Agreement may be amended only by a written instrument duly executed by the
parties.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the first date written above.
PDK LABS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: President
SUPERIOR SUPPLEMENTS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
---------------------
Name: Xxxxxxxx X. Xxxxx
Its: President
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