EXHIBIT 10.1
TRANSACTION SERVICES AGREEMENT
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This Transaction Services Agreement (this "Agreement") is made and
entered into as of February 25, 1998, by and between Nutraceutical International
Corporation, a Delaware corporation (the "Company"), and Bain Capital, Inc., a
Delaware corporation ("Bain").
WHEREAS, the Company desires to retain Bain and Bain desires to
perform for the Company and its subsidiaries and parent certain services;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties agree as follows:
1. Term. This Agreement shall be in effect for an initial term
commencing on the date hereof and ending on the earlier to occur of (a) February
15, 2001 and (b) the first day on which Bain and its affiliates cease to own at
least 5% of the Company's Common Stock (the "Term"). The Term shall be
automatically extended thereafter on a year to year basis unless the Company or
Bain provides written notice of its desire to terminate this Agreement to the
other party 90 days prior to the expiration of the Term or any extension
thereof.
2. Services. Bain shall perform or cause to be performed such services
for the Company and its subsidiaries and parent as directed by the Company,
which may include, without limitation, the following:
(a) identification, support, negotiation and analysis of acquisitions
and dispositions by the Company or its subsidiaries or parent;
(b) support, negotiation and analysis of financing alternatives,
including, without limitation, in connection with acquisitions, capital
expenditures and refinancing of existing indebtedness; and
(c) finance functions, including assistance in the preparation of
financial projections, and monitoring of compliance with financing
agreements.
4. Transaction Fees.
(a) The Company hereby agrees to pay to Bain or its designees on the
closing date of the consummation of the Company's initial public offering
for services rendered in connection therewith and certain other management
services. Such fees shall be payable by wire transfer in an amount equal to
$375,000 to Bain or its designees plus reasonable and documented out-of-
pocket expenses.
(b) In addition, during the term of this Agreement, the Company shall
pay to Bain or its designees a transaction fee in connection with the
consummation of each acquisition, divestiture or financing (without
duplication) by the Company or its subsidiaries or parent that is generated
by Bain or for which the Company requests Bain to perform services pursuant
hereto, in an amount equal to 1.0% of the aggregate value of such
transaction, plus reasonable and documented out-of-pocket expenses incurred
in connection with performing services for the Company, when and as
incurred.
5. Personnel. Bain shall provide and devote to the performance of this
Agreement such partners, employees and agents of Bain as Bain shall deem
appropriate to the furnishing of the services required.
6. Liability. Neither Bain nor any of its affiliates, partners,
employees or agents shall be liable to the Company or its subsidiaries or
affiliates for any loss, liability, damage or expense arising out of or in
connection with the performance of services contemplated by this Agreement,
unless such loss, liability, damage or expense shall be proven to result
directly from gross negligence, willful misconduct or bad faith on the part of
Bain, its affiliates, partners, employees or agents acting within the scope of
their employment or authority.
7. Indemnity. The Company and its subsidiaries and parent shall
defend, indemnify and hold harmless each of Bain, its affiliates, partners,
employees and agents from and against any and all loss, liability, damage or
expenses arising from any claim by any person with respect to, or in any way
related to, the performance of services contemplated by this Agreement
(including attorneys' fees) (collectively, "Claims") resulting from any act or
omission of Bain, its affiliates, partners, employees or agents, other than for
Claims which shall be proven to be the direct result of gross negligence, bad
faith or willful misconduct by Bain, its affiliates, partners, employees or
agents. The Company and its subsidiaries and parent shall defend at its own cost
and expense any and all suits or actions (just or unjust) which may be brought
against the Company, its subsidiaries and parent and Bain, its officers,
directors, affiliates, partners, employees or agents or in which Bain, its
affiliates, partners, employees or agents may be impleaded with others upon any
Claims, or upon any matter, directly or indirectly, related to or arising out of
this Agreement or the performance hereof by Bain, its affiliates, partners,
employees or agents, except that if such damage shall be proven to be the direct
result of gross negligence, bad faith or willful misconduct by Bain, its
affiliates, partners, employees or agents, then Bain shall reimburse the Company
and its subsidiaries and parent for the costs of defense and other costs
incurred by the Company and its subsidiaries and parent.
8. Notices. All notices hereunder shall be in writing and shall be
delivered personally or mailed by United States mail, postage prepaid, addressed
to the parties as follows:
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To the Company:
Nutraceutical International Corporation
1400 Kearns Boulevard, 2nd Floor
Park City, Utah 84060
Attention: Chief Executive Officer
To Bain:
Bain Capital, Inc.
Two Copley Place
Boston, Massachusetts 02116
Attention: Robert C. Gay
9. Assignment. Neither party may assign any obligations hereunder to
any other party without the prior written consent of the other party (which
consent shall not be unreasonably withheld); provided that Bain may, without
consent of the Company, assign its rights and obligations under this Agreement
to any of its affiliates (but only if such affiliate is a person or entity
(excluding any Bain portfolio companies) controlled by Bain, or in the case of
an affiliate which is a partnership, Bain is the ultimate general partner of
such partnership). The assignor shall remain liable for the performance of any
assignee.
10. Successors. This Agreement and all the obligations and benefits
hereunder shall inure to the successors and assigns of the parties.
11. Counterparts. This Agreement may be executed and delivered by each
party hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original and all of which taken together shall
constitute but one and the same agreement.
12. Entire Agreement; Modification; Governing Law. The terms and
conditions hereof constitute the entire agreement between the parties hereto
with respect to the subject matter of this Agreement and supersede all previous
communications, either oral or written, representations or warranties of any
kind whatsoever, except as expressly set forth herein. No modifications of this
Agreement nor waiver of the terms or conditions thereof shall be binding upon
either party unless approved in writing by an authorized representative of such
party. All issues concerning this agreement shall be governed by and construed
in accordance with the laws of the State of Illinois, without giving effect to
any choice of law or conflict of law provision or rule (whether of the State of
Illinois or any other jurisdiction) that would cause the application of the law
of any jurisdiction other than the State of Illinois.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
NUTRACEUTICAL INTERNATIONAL CORPORATION
By: /s/ Frank W. Gay
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Its: Chief Executive Officer
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BAIN CAPITAL, INC.
By: /s/ Robert Gay
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Its: Managing Director
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