Exhibit 10.2
TERMINATION AGREEMENT
This Termination 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"), and terminates that certain Advisory Agreement dated as of
January 31, 1995, by and between the Company and Bain (the "Advisory
Agreement").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties agree as follows:
1. Termination. The Company and Bain hereby agree to terminate the
Advisory Agreement and that no further consideration or services are to be
tendered pursuant thereto, other than as set forth herein.
2. Termination Fee. The Company hereby agrees to pay to Bain or its
designees on the date hereof a fee for agreeing to terminate the Advisory
Agreement in consideration of foregone revenues to Bain thereunder. Such fees
shall be payable by wire transfer in an amount equal to $625,000 to Bain or its
designees.
3. 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 under the Advisory 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.
4. 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 under the Advisory 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 the
Advisory Agreement or the performance thereof 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.
5. 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:
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
6. 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.
7. Successors. This Agreement and all the obligations and benefits
hereunder shall inure to the successors and assigns of the parties.
8. 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.
9. 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
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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 Termination
Agreement as of the date first written above.
NUTRACEUTICAL INTERNATIONAL
CORPORATION
By: /s/ Frank W. Gay
__________________________________
Its: Chief Executive Officer
__________________________________
BAIN CAPITAL, INC.
By: /s/ Robert Gay
__________________________________
Its: Managing Director
__________________________________
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