Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Amendment No. 1 to Form S-1 86 523K
2: EX-3.1 Form of Amended and Restated Certificate 10 43K
3: EX-3.2 Form of By-Laws of the Registrant 14 59K
4: EX-4.1 Form of Certificate Representing Common Stock 2 13K
5: EX-10.1 Revolving Credit and Term Loan Agreement 138 501K
14: EX-10.10 Second Amendment to Warrants 8 29K
15: EX-10.11 Stock Option Agreement 14 56K
16: EX-10.12 Stock Option Agreement 14 57K
17: EX-10.13 Stock Option Agreement 12 55K
18: EX-10.14 Form of Area Sales Consultant Agreement 12 51K
19: EX-10.15 Form of Transaction Services Agreement 4 21K
20: EX-10.16 Form of Termination Agreement 4 17K
21: EX-10.17 Form of Indemnification Agreement 9 47K
22: EX-10.18 1998 Stock Incentive Plan 10 42K
23: EX-10.19 Non-Employee Director Stock Option Plan 7 35K
6: EX-10.2 Waiver and Amendment to Revolving Credit 11 34K
24: EX-10.20 Employee Stock Discount Purchase Plan 7 33K
7: EX-10.3 Amended and Restated Stockholders Agreement 31 95K
8: EX-10.4 Amended and Restated Registration Agreement 29 89K
9: EX-10.5 Investor Agreement 9 42K
10: EX-10.6 Consultant Stock Agreement 24 77K
11: EX-10.7 Executive Stock Agreement 26 81K
12: EX-10.8 Warrants 56 216K
13: EX-10.9 First Amendment to Warrants 5 20K
25: EX-11.1 Computation of Pro Forma 2± 12K
26: EX-21.1 Subsidiaries of the Company 1 9K
27: EX-23.1 Consent of Price Waterhouse, LLP 1 9K
EXHIBIT 10.14
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INDEPENDENT CONTRACTOR SALES AGREEMENT
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This Independent Contractor Sales Agreement (the "Agreement") is entered
into as of January 1, 1998, by and between Nutraceutical Corporation, a Delaware
corporation ("Nutraceutical") and Federal_Tax_Name ("Independent Contractor").
Nutraceutical and Independent Contractor are sometimes collectively referred to
herein as the "Parties" and individually as a "Party."
RECITALS
A. Nutraceutical is in the business of manufacturing and marketing quality
natural nutritional supplements under the Solaray, KAL, NaturalMax, Premier One,
Veg Life and Solar Green brand names and such additional brand names as
Nutraceutical may from time to time announce as being part of its "Family of
Brands" (the "Products"). Nutraceutical sells the Products domestically only to
health food stores which meet the then current Nutraceutical Health Food
Retailer Standard, as modified from time to time ("Health Food Stores"). A copy
of the current Health Food Retailer Standard is attached at Exhibit A.
B. Independent Contractor is experienced in the marketing and promotion of
nutritional supplements, and wishes to promote the sale of the Products, and
Nutraceutical wishes to engage Independent Contractor to promote the sale of the
Products, all on the terms and conditions set forth herein.
AGREEMENT
In consideration of the mutual covenants and agreements set forth herein,
Nutraceutical and Independent Contractor agree as follows:
1. Engagement. Nutraceutical hereby engages Independent Contractor as an
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independent contractor, and not as an employee, and Independent Contractor
hereby accepts the engagement, upon the terms and conditions set forth herein,
to promote the sale of the Products to Health Food Stores. Independent
Contractor is engaged to perform its services solely in the geographical region
(the "Area") and with respect to the accounts to be assigned, from time to time,
by Nutraceutical (the "Assigned Accounts"). Independent Contractor may also
visit Health Food Stores which are not already customers of Nutraceutical and
encourage them to submit appropriate applications to be accepted by
Nutraceutical to carry the Products. Such Health Food Stores, if accepted, will
either become Assigned Accounts or will be assigned to the Nutraceutical
telemarketing department, at the discretion of Nutraceutical. The Assigned
Accounts may be designated by geography, by accounts, by sub-accounts, or by any
combination of the foregoing or other factors designated by Nutraceutical.
Nutraceutical shall endeavor to give Independent Contractor seven (7) days prior
written notice of any change in the Area or the Assigned Accounts, but any such
change shall become effective upon written notice from Nutraceutical.
2. Capacity and Duties. Independent Contractor shall diligently represent
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and promote the sale of the Products to Assigned Accounts and to Health Food
Stores within the Area using legal methods for the advertising, marketing and
sale of dietary supplements and other products. Independent Contractor shall be
responsible in all respects for determining the means of accomplishing the
objectives established hereunder, as long as such means are in compliance with
the terms set forth herein. However, Independent Contractor shall, at a minimum
(a) visit and conduct an assessment of every Assigned Account and its
relationship with Nutraceutical and its Products on a monthly basis; (b) ensure
that each Assigned Account is familiar with and aware of all the Products, and
regularly receives information relative to discounts and special promotions; and
(c) monitor inventory, perform in-store demonstrations and assist Assigned
Accounts in arranging shelves and promotional displays, as requested by such
Assigned Accounts. Independent Contractor shall conduct its own business and may
employ sales representatives, agents and employees for purposes of fulfilling
Independent Contractor's duties under this Agreement, as set forth herein.
Independent Contractor is not and shall not be construed as an employee,
distributor, dealer, franchisee or partner of Nutraceutical, and assumes the
entire liability for any loss suffered in connection with its business
operations. Independent Contractor shall be solely responsible for the control,
supervision and direction of its sales representatives, agents and employees,
and for their compensation, expenses and all other associated costs and
liabilities, as well as those of Independent Contractor. Independent Contractor
acknowledges that from time to time Nutraceutical may publish Sales Guidelines
which include information on commissions and other payments available to
Independent Contractor, information on current discount and promotional
programs, recommendations for appropriate sales techniques and forms for
submitting or requesting information. The Sales Guidelines are incorporated
herein by reference, but shall not be construed to provide, and should not be
interpreted as providing, mandatory requirements for the internal operation of
Independent Contractor's business or method of doing business, but shall instead
be construed as providing general guidelines for establishing a productive
working relationship between Independent Contractor, Nutraceutical and Assigned
Accounts. Independent Contractor shall make arrangements to have access to
facsimile equipment over which the Independent Contractor can send and receive
documents at any time.
3. Payment. In consideration of Independent Contractor's services
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provided hereunder, as well as in consideration of the covenants set forth
herein, Independent Contractor shall be paid for such services based upon sales
of the Products according to such payment programs as may be established from
time to time by Nutraceutical. Independent Contractor acknowledges and accepts
the fact that the payment program may include a growth-based incentive element,
which would provide Independent Contractor with extra payments based on growth
in sales with respect to the Assigned Accounts and/or Area, and which may also
provide for penalties or reduced payments based on failure to meet minimum
growth levels, which may also constitute default and grounds for termination.
Independent Contractor acknowledges and agrees that (a) the amounts payable to
Independent Contractor are based on a number of factors, including
Nutraceutical's then current commission and discount programs, the date on which
orders are received, whether credits or returns occur, and whether Independent
Contractor complies with all other provisions of this Agreement, and (b)
Nutraceutical shall have the right, in its sole discretion, to exercise judgment
and discretion
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in determining what is fair and reasonable in given circumstances with respect
to the proper calculation of what payments are owing to Independent Contractor,
and its determination shall be final. Furthermore, Independent Contractor agrees
that Nutraceutical's commission and payment program shall be treated as
Confidential pursuant to Section 6, and expressly accepts and consents to the
fact that Nutraceutical does not release data relative to its method of
calculating payments due, either to Independent Contractor or any other party.
Independent Contractor agrees that the assignment of the Area and Assigned
Accounts to Independent Contractor, and the modification of this assignment from
time to time, is under Nutraceutical's sole control and may be changed from time
to time. These changes may be based on suggestions or requests from the
Independent Contractor, Assigned Accounts, or other business factors. Because
these changes may occur at times other than the beginning or end of a particular
month, payment for Independent Contractor's services for a month in which a
change occurs shall be based upon the designation of the Assigned Accounts
effective as of the end of such month. Nutraceutical shall endeavor to give
Independent Contractor seven (7) days prior written notice of any changes to its
payment schedule, but any such changes shall be effective upon delivery of such
payment schedule to Independent Contractor with respect to sales which occur
following such date. The payments made by Nutraceutical pursuant to its then
current commission and payment programs shall be Independent Contractor's sole
compensation for the services rendered hereunder, and all costs, expenses and
charges incurred in connection with such services shall be the sole
responsibility of Independent Contractor. Any payments owing Independent
Contractor normally shall be made by wire transfer to the Independent Contractor
at an account designated in writing by Independent Contractor, or by another
method selected by Nutraceutical.
4. Terms and Conditions of Sale. Independent Contractor has no power to
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offer to sell the Products or to accept orders on behalf of Nutraceutical, but
may solicit purchase orders from the Assigned Accounts or other Health Food
Stores in the Area (as long as such Health Food Stores are not designated by
Nutraceutical to be assigned to its telephone marketing department or some other
Nutraceutical marketing arm or division). The Products shall be sold and shipped
by Nutraceutical according to such terms and conditions of sale, and such
discount and credit policies, as Nutraceutical shall from time to time publish.
Independent Contractor shall not represent to any party that any other or
additional terms and conditions are available from Nutraceutical and shall not
under any circumstances purport to accept any purchase order or contract on
behalf of Nutraceutical.
5. Compliance with Law; Additional Obligations. Independent Contractor
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shall be solely responsible for complying with all laws, regulations and orders
which are in any way applicable to its duties or business. Without limiting the
generality of the foregoing, Independent Contractor shall (a) be solely
responsible for making, executing and filing any and all reports and
applications, and paying all fees and fines, and obtaining all business and
other licenses, as required by applicable law, regulation or public authority
with respect to the services provided hereunder, Independent Contractor's
business, and the advertising, marketing, distribution and sale of the Products
within the Area; (b) abide by applicable federal, state, and local laws, rules,
regulations and orders of every nature in connection with such advertising,
marketing and sale of the Products; (c) declare and pay all local, state and
federal taxes, fees and charges of any kind that may accrue or be owing by
virtue of Independent Contractor's services, the payments received by
Independent
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Contractor or the business conducted by Independent Contractor; and (d) provide
all services and perform its duties hereunder in accordance with the highest
standards of the industry. Independent Contractor shall also ensure that its
sales representatives, employees and agents are adequately trained and licensed
to carry out Independent Contractor's responsibilities and duties hereunder, and
comply with all of the foregoing requirements.
6. Product Representations. Independent Contractor acknowledges that the
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Products are not intended to, and Independent Contractor agrees not to represent
that the products shall or are intended to, diagnose, mitigate, treat, cure or
prevent any disease, damage or dysfunction. Instead, the Products are intended
solely for food, dietary supplementation, and personal care purposes. Neither
Independent Contractor nor its sales representatives, agents or employees shall
make any claims of any kind with respect to the Products other than those
specifically contained in Nutraceutical's Authorized Literature, as hereinafter
defined. Nutraceutical's Authorized Literature is defined as and limited to
documents which (a) have the name "Nutraceutical" or the name of one of the
Nutraceutical "Family of Brands" clearly placed upon the document; (b) are not
marked "Confidential"; and (c) originate and are available only from
Nutraceutical's principal places of business in Ogden, Utah and Park City, Utah.
Independent Contractor assumes full responsibility for any statement made by
Independent Contractor, its sales representatives, agents or employees which is
not explicitly made in the Authorized Literature. Independent Contractor agrees
that although Nutraceutical may from time to time provide Independent Contractor
copies of publications, articles, books, chapters, or abstracts prepared and
published by third parties (the "Third Party Literature"), Nutraceutical is
doing so only to provide Independent Contractor with convenient access to
general nutritional information. Nutraceutical shall not be deemed to have
reviewed and approved of such Third Party Literature, whether by virtue of
supplying it or referring to it in Authorized Literature.
7. Indemnity.
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(a) Independent Contractor shall and hereby does agree to defend, indemnify
and hold harmless Nutraceutical and its affiliates, officers, directors, agents
and employees and their respective successors and assigns from and against all
loss, liability cost, expense and claim, including reasonable attorneys' fees
and court costs, arising out of or relating to (i) any breach by Independent
Contractor or its sales representatives, agents or employees of any of
Independent Contractor's covenants, agreements, representations or warranties
contained in this Agreement; or (ii) any negligent or intentional act or
omission of Independent Contractor or its sales representatives, agents or
employees.
(b) Nutraceutical shall and hereby does agree to defend, indemnify and hold
harmless the Independent Contractor and his/her employees and respective
successors and assigns from and against all loss, liability, cost, expense and
claim, including reasonable attorneys' fees and court costs, arising out of or
relating to (i) any breach by Nutraceutical of any of Nutraceutical's covenants,
agreements, representations or warranties contained in this Agreement; or (ii)
any claim by any third party (other than Independent Contractor or its sales
representatives, agents or employees, or their heirs and successors) that the
Products are unreasonably dangerous or defective.
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8. Confidentiality; Restrictive Covenant
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(a) As used herein, "Confidential Information" means any information
relating to the past, present or prospective activities of Nutraceutical or its
affiliates which involves or is associated with: (i) the Products, or any
processes or formulas associated with creating the same, or any inventions,
trade secrets, know-how, discoveries, recipes, drawings, designs, research,
patent applications, plans or specifications relating thereto; (ii) business
plans, customers (including customer lists and customer purchasing information),
suppliers, clients, business contacts and contracts, methods of doing business,
business objectives and goals; or (iii) business opportunities, costs and
pricing strategies, marketing techniques and plans, and negotiating strategies
with respect to any business activities. Confidential Information shall not
include any information that is, or without violation of this Agreement by
Independent Contractor becomes, part of the public domain. Confidential
Information also includes any information marked "Confidential" by Nutraceutical
or any of its affiliates or employees. For the purposes of this Section 8,
Independent Contractor shall include Independent Contractor's directors,
officers, partners, sales representatives, employees, or agents, and any or all
of them, to the extent such persons receive Confidential Information.
(b) Independent Contractor agrees that it shall not, during the term of
this Agreement and thereafter, disclose either any Confidential Information or
component thereof or to any person, firm, or corporation, or use any
Confidential Information or Third Party Literature in any way contrary to the
best interests of Nutraceutical. Independent Contractor shall not use and shall
not permit to be used any Confidential Information for any purpose other than as
provided by or contemplated in this Agreement. Independent Contractor shall not
photocopy, transcribe, or otherwise reproduce any of the Confidential
Information, except as may be necessary for its use of the Confidential
Information for the purposes of and as permitted by this Agreement.
(c) Upon termination of this Agreement, or at any other time Nutraceutical
may request, Independent Contractor shall deliver to Nutraceutical all
documents, notes, plans, memoranda, records, notebooks, printouts, software,
computer disks and electronic medium containing either Confidential Information
or Third Party Literature, including all copies thereof, then in its possession
or the possession of any of its sales representatives, agents or employees.
(d) During the term of this Agreement, Independent Contractor shall not,
directly or indirectly, either by itself or through any person, firm or
corporation, represent or offer for sale within the Area any product, product
line or brand competitive with the Products. Competitive products, product lines
and brands shall include, without limitations, all products in the form of two-
piece capsules, tablets, softgel capsules, powders, liquids or granulations of
herbs, vitamins, minerals or other nutritional or dietary supplements (including
sport nutrition products). Independent Contractor shall keep Nutraceutical
informed concerning all products, product lines and brands other than
Nutraceutical's that Independent Contractor represents or offers
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for sale. In particular Independent Contractor shall provide to Nutraceutical a
comprehensive written list of all products, product lines and brands other than
Nutraceutical's that Independent Contractor represents or offers for sale at the
following times: (i) upon the execution of this Agreement (ii) on or before July
15 of each year during the term hereof, within fifteen (15) days of agreeing to
represent any other product, product line or brand, and (iv) at any other time
within fifteen (15) days of Nutraceutical's written request. Failure to comply
with the obligations set forth in this Section 8(d) may constitute grounds for
termination or withholding commissions.
9. Term and Termination.
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(a) The term of this Agreement shall commence as of January 1, 1998, and
shall automatically expire on December 31, 1998, subject to earlier termination
pursuant to Section 9(b) below. The term of this Agreement may be renewed by
mutual written agreement of the parties for additional periods of twelve (12)
months each.
This Agreement may be terminated by either party at any time effective upon
written notice given to the other party.
(c) Within fifteen (15) days of the expiration or termination of this
Agreement, Independent Contractor shall return to Nutraceutical all Confidential
Information, as well as any saleable product, promotional materials or other
property of Nutraceutical, including any materials bearing any trademark owned
by or licensed to Nutraceutical. Upon any termination or expiration of this
Agreement, Independent Contractor shall immediately cease all use of any
trademark owned by or licensed to Nutraceutical or its affiliates.
(d) Upon expiration or termination of this Agreement, neither party shall
be liable to the other party for, and each party hereby releases the other party
from any liability arising from, any claim relating to or associated with
termination of this Agreement pursuant to its terms, whether arising out of
anticipated business or income, or related to the business or goodwill of the
parties. Notwithstanding the foregoing, termination in accordance with this
Agreement shall be without prejudice to any of the rights or liabilities of
either party accrued at the date of termination.
10. Injunctive Relief. Upon breach or threatened breach by Independent
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Contractor or any of its sales representatives, agents or employees of any of
the provisions of this Agreement, Nutraceutical shall be entitled to an
injunction restraining Independent Contractor from such breach. Nothing herein
shall be construed as prohibiting Nutraceutical from pursuing any other remedy
available at law or in equity for such breach or threatened breach, including
recovery of damages from Independent Contractor, for purposes of enforcement of
the provisions of this Agreement, at law or in equity. Independent Contractor
hereby submits to the exclusive jurisdiction of the courts of the State of Utah,
both state and federal.
11. Survival of Covenants. The provisions of this Agreement which by
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their terms should survive to effect the intent of the parties shall survive the
expiration or earlier termination of this Agreement.
12. Assistance. Independent Contractor may employ sales representatives,
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agents and
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other employees to assist in the performance of Independent Contractor's duties
hereunder, but shall remain liable in all respects for any breach or loss caused
by any such party. Independent Contractor's sales representatives, agents and
other employees shall agree in writing with Independent Contractor, in form
substantially similar to the Acknowledgment attached as Exhibit B, to be bound
by the provisions of this Agreement, and a copy of such signed Acknowledgment
shall be sent to Nutraceutical within ten (10) days of the employment by
Independent Contractor of such sales representative, agent, or other employee.
However, the only persons who may conduct and satisfy the requirement for a
monthly visit of each Assigned Account are those individuals who have been
approved by Nutraceutical based on a minimum level of education and knowledge
("Approved Agents"). The current list of Approved Agents is set forth below the
signature of Independent Contractor.
13. Assignment. Except as set forth in Section 12 above, neither
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Independent Contractor nor any of its sales representatives, agents or employees
shall assign or transfer any rights or delegate any under this Agreement, and
any attempt to do so shall be null and void. Nutraceutical may freely assign
this Agreement and the rights hereunder and any of the provisions hereof to any
affiliate of Nutraceutical, or to the purchaser of all or substantially all of
the assets of Nutraceutical, without the consent of the Independent Contractor.
14. Tax Status and Returns. INDEPENDENT CONTRACTOR ACKNOWLEDGES AND AGREES
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THAT NEITHER NUTRACEUTICAL NOR ANY OF ITS AFFILIATES SHALL BE REQUIRED, WITH
RESPECT TO INDEPENDENT CONTRACTOR OR ANY OF ITS SALES REPRESENTATIVES, AGENTS OR
EMPLOYEES, AND NUTRACEUTICAL HEREBY SPECIFICALLY DISCLAIMS ANY OBLIGATION TO (a)
PROVIDE WORKERS' COMPENSATION OR UNEMPLOYMENT COVERAGE; (b) WITHHOLD OR REMIT
ANY SOCIAL SECURITY OR WITHHOLDING TAXES, ALL OF WHICH SHALL BE THE
RESPONSIBILITY OF INDEPENDENT CONTRACTOR; OR (c) ALLOW PARTICIPATION IN ANY
DEFINED BENEFITS PLANS, MEDICAL INSURANCE COVERAGE PLANS OR PROGRAMS, OR SIMILAR
BENEFIT PLANS OR PROGRAMS NORMALLY PROVIDED TO EMPLOYEES OF NUTRACEUTICAL OR ITS
AFFILIATES. At all times during the term hereof and thereafter, Independent
Contractor shall file all tax returns and other governmental filings and reports
consistent with its status as an independent contractor, as defined in Treasury
Regulation (S)31.3121 (d) - 1 (c) (2), and Independent Contractor shall
indemnify Nutraceutical for any breach by Independent Contractor of this
covenant, as well as with respect to the amount of any taxes, charges,
assessments, penalties or fines paid by Nutraceutical or its affiliates as the
result of Independent Contractor breaching this covenant, such as by not
remitting employment taxes from the compensation payable under this Agreement.
15. Knowledge of Area and Nutritional Supplement Industry. Independent
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Contractor hereby represents, warrants and covenants that (i) it is
knowledgeable with respect to the nutritional supplement industry and is
familiar with the Products, and (ii) either Independent Contractor (or its
primary shareholder, officer and director) lives and will live in the Area or
within a reasonable distance therefrom, and is familiar with the Area and with
the Health Food Stores located therein. Independent Contractor further agrees
that any sales representative, agent or employee of
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Independent Contractor who assists in the promotion of the Products shall
likewise be knowledgeable with respect to the nutritional supplement industry,
the Products, and the Area.
16. Disclaimer of Warranties and Limitation on Liability.
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(a) Nutraceutical warrants that the Products, when delivered, will be fit
for human consumption. NUTRACEUTICAL MAKES NO OTHER WARRANTIES, EXPRESS OR
IMPLIED, AND WHETHER OR NOT FOUND IN AUTHORIZED LITERATURE, WITH RESPECT TO THE
PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
(b) THE LIABILITY OF NUTRACEUTICAL ARISING UNDER OR BY REASON OF THIS
AGREEMENT TO INDEPENDENT CONTRACTOR OR ANY OTHER PARTY SHALL IN NO EVENT EXCEED
THE LIQUIDATED SUM OF THIRTY DAYS OF COMMISSIONS AND OTHER PAYMENTS PAID TO
INDEPENDENT CONTRACTOR BY NUTRACEUTICAL, BASED ON THE AVERAGE MONTHLY PAYMENT
EARNED BY INDEPENDENT CONTRACTOR DURING THE MOST RECENT TERM OF THIS AGREEMENT.
IN NO EVENT SHALL NUTRACEUTICAL BE LIABLE FOR LOST PROFITS OR ANY OTHER SPECIAL,
INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND
UNDER ANY THEORY OF LIABILITY, WHETHER CONTRACT, STRICT LIABILITY OR TORT, EVEN
IF NUTRACEUTICAL IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
17. Attorneys' Fees. In any action or proceeding brought to enforce or
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interpret this Agreement, the prevailing party shall be entitled to recover all
costs and expenses, including reasonable attorneys' fees and costs, incurred in
connection therewith, whether such costs and expenses are incurred with or
without suit, or before or after judgment.
18. Notices. All notices, approvals, or other communications
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(collectively, the "Notices") under this Agreement shall be in writing and sent
by hand-delivery, special courier (for example, Federal Express, UPS or DHL) or
facsimile, addressed as follows:
If to Nutraceutical:
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Nutraceutical Corporation
P. O. Box 681869
Park City, Utah 84068
Attention: Director of Field Sales and Vice President, Legal Affairs
Facsimile:___________________
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If to Independent Contractor:
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FirstName LastName
Address
City, ST Zip
Facsimile:___________________
or to such other address and/or facsimile number as either Party may give notice
to the other in the manner provided in this Section 18.
19. Captions. The captions used in this Agreement are for convenience of
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reference only and do not constitute a part of this Agreement and shall be
deemed to limit, characterize or in any way affect any provision of this
Agreement, and all provisions of this Agreement shall be enforced and construed
as if no caption had been used in this Agreement.
20. Severability. Whenever possible, each provision and term of this
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Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision or term of this Agreement shall be held to
be prohibited by or invalid under such applicable law, then such provision or
term shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating or affecting in any manner whatsoever the remainder of such
provision or term or the remaining provision or terms of this Agreement.
21. Modification or Waiver. No amendment, modification or waiver of this
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Agreement shall be binding or effective for any purpose unless it is made in
writing signed by the party against who enforcement of such amendment,
modification or waiver is sought. No course of dealing between the parties to
this Agreement shall be deemed to affect or to modify, amend or discharge any
provision or term of this Agreement. No delay on the part of Nutraceutical or
Independent Contractor in the exercise of any of their respective rights or
remedies shall operate as a waiver thereof, and no single or partial exercise by
Nutraceutical or Independent Contractor of any such right or remedy shall
preclude other or further exercises thereof. A waiver of right or remedy on any
one occasion shall not be construed as a bar to or waiver of any such right or
remedy on any other occasion.
22. No Strict Construction. The language used in this Agreement shall be
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deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any party.
23. Governing Law. All issues and questions concerning the construction,
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validity, enforcement and interpretation of this Agreement and the exhibits and
schedules hereto shall be governed by, and construed in accordance with, the
laws of the State of Utah, without giving effect to any choice of law or
conflict of law rules, or provisions (whether of the State of Utah or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Utah.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
NUTRACEUTICAL CORPORATION
By:______________________________________
Its: Senior Vice President --
Marketing & Sales
Federal_Tax_Name
By:_____________________________________
Its:________________________
Federal Tax I.D. Number
________________________________________
Approved Agents:
________________________________________
________________________________________
________________________________________
________________________________________
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EXHIBIT A
NUTRACEUTICAL'S "TRUE BLUE" COMMITMENT
Nutraceutical sells its "Nutraceutical Family of Brands" products (the
"Nutraceutical Products") only to retails stores which meet Nutraceutical's
Health Food Retailer Standard.
HEALTH FOOD RETAILER STANDARD
Nutraceutical's customers must meet Nutraceutical's Health Food Retailer
Standard (the "Standard"), which means they agree in writing to:
SELL FROM A RETAIL STORE. A "retail store" is a self-contained or physically
separate business space with a visible sign, regular business hours, its own
staff and a separate register. A "retail store" is not a business which is
operated from within the confines of a residence.
SELL NATURAL PRODUCTS. The retail store must derive at least 75% of its gross
revenues from the sale of natural, nutritional products and related items,
including supplements (such as vitamins, minerals, and herbs), or natural food
products (such as juices, grocery items and produce), and related literature and
consumer products;
OFFER ADEQUATE CUSTOMER SERVICE AND RESOURCES. A retail store may meet this
standard either by retaining qualified employees and clerks, offering access to
herbalists, nutritionists or similar parties, or making adequate literature
available related to the potential benefits of nutritional supplements, whether
through computer databases or books and pamphlets; and
MEET IMAGE AND FACING REQUIREMENTS. Nutraceutical may establish minimum image
and purchase requirements on a case by case basis, which may include a minimum
number of facings of Nutraceutical products, the general cleanliness, image and
appearance of the store, and whether the retail store offers products also
available in mass-market or other channels of distribution, or otherwise is too
closely associated with a separate store or space which does not meet the
Standard.
Nutraceutical does not sell Nutraceutical Products domestically to wholesalers,
distributors, or buying organizations, and endeavors to prevent Nutraceutical
Products from being sold from mass-market retail space, medical or therapeutic
clinics or offices, or gyms. The Nutraceutical Family of Brands currently
includes Solaray, KAL, Premier One, NaturalMax, Veg Life, and Solar Green.
The Standard is intended to offer flexible criteria which can be used to review
individual circumstances on a case by case basis and to balance various
competing requirements. In certain circumstances a particular customer may
exceed certain minimum requirements, but not meet others. Nutraceutical
reserves the right, in its sole discretion, to determine which entities or
parties meet the Standard, to monitor whether a party continues to meet the
Standard and to modify the Standard from time to time. The creation of the
Standard, and its administration and enforcement, shall not be deemed under any
circumstances to create any legal rights in any party other than Nutraceutical,
or be enforceable by any party other than Nutraceutical. Nutraceutical further
reserves the right, in its sole discretion, to sell to any party, to refuse to
sell to any party, or to cease selling to any party regardless of whether such
party meets the Standard.
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EXHIBIT B
INDEPENDENT CONTRACTOR SALES REPRESENTATIVE, AGENT
OR EMPLOYEE ACKNOWLEDGMENT AGREEMENT
The undersigned_________________________________________ ("Agent"), hereby
acknowledges having reviewed and received a copy of the Independent Contractor
Sales Agreement between Federal_Tax_Name (the "Independent Contractor") and
Nutraceutical Corporation. In consideration of servicing the Nutraceutical
account under the direction of Independent Contractor, and for other good and
valuable consideration, Agent agrees to be bound by the terms and conditions of
the Independent Contractor Sales Agreement as if Agent were signing the same as
the Independent Contractor, and Independent Contractor were signing the same as
Nutraceutical, and specifically noting numbered Sections 5, 6, 7, and 8. Agent
also acknowledges that Nutraceutical is relying upon this Acknowledgment to
communicate Confidential Information to Independent Contractor and then to
Agent, and Nutraceutical is an intended to be and will be construed as a third
party beneficiary of this Agreement.
Dated: ____________________________________
AGENT
Signed: ___________________________________
___________________________________________
(print name)
INDEPENDENT CONTRACTOR
Signed:___________________________________
(First Name) (Last Name)
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Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘S-1/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 12/31/98 | | 6 | | | | | 10-Q |
| Filed on: | | 1/28/98 |
| | 1/1/98 | | 1 | | 6 |
| List all Filings |
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Filing Submission 0000950131-98-000409 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
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