EXHIBIT 10.6
MANAGEMENT SERVICES
AGREEMENT
THIS MANAGEMENT SERVICES
AGREEMENT (the
“Agreement”) is entered into as of the 1st day of
October, 2008 (the “ Effective Date ”), by and
between BRAND BUILDERS RX, LLC , a Delaware limited
liability company (“Company”), and BRAND BUILDERS
INTERNATIONAL, LLC , a Delaware limited liability company
(“ Brand Builders ”). The Company and Brand
Builders are hereunder also referred to collectively as the “
Parties ” and individually as a
“Party” . All capitalized terms used herein
without definition shall have the meanings set forth in the
Operating Agreement of the Company, dated as of October 1,
2008.
W I T N E S S E T
H:
WHEREAS, Brand Builders is in the business of providing
administrative and marketing services; and
WHEREAS, Company desires to contract with Brand Builders,
upon the terms and conditions hereafter set forth, to render such
services to and on behalf of Company.
NOW, THEREFORE
, in consideration of the mutual
promises contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
mutually acknowledged, the Parties agree as follows:
1.
Management Services . On the terms and subject to the
conditions set forth herein, Company hereby retains Brand Builders,
and Brand Builders hereby agrees to be retained, for the purpose of
providing the marketing, administrative and marketing services
(“ Management Services ”) described in
Schedule 1 hereto. Brand Builders will provide
Management Services through its officers, employees and agents
which shall, in any event, include Ilonka Harezi and/or Courtland
Reeves. In addition to the Management Services, Brand Builders
shall make Ms. Harezi and/or Mr. Reeves available to
serve as officers and members of the Board of Managers of the
Company and in such other capacities as the Board of Managers shall
direct, and Brand Builders and its employees and agents shall
report directly to the Board of Managers of the Company. Generally,
Management Services shall be provided at the direction of the Board
of Managers of the Company.
2.
Nature of Engagement . It is intended that Brand
Builders shall provide Management Services consistent with the
terms of the Operating Agreement, the terms of which are
incorporated herein and made a part hereof to the extent relevant.
Brand Builders, its members, managers, officers, employees and
agents (collectively and individually unless otherwise required by
the context, “ Brand Builders ”) shall serve as
agents of the Company with such authority and responsibilities as
may be delegated to them from time to time by the Board of Managers
and consistent with any office to which they are elected or
appointed. Nothing herein shall be construed to prohibit Brand
Builders, its members, managers, officers, employees or agents from
engaging in other services for themselves or third parties provided
that such services
are not inconsistent with or in
opposition to the services and duties that such parties have under
this Agreement, the Operating Agreement or applicable
law.
3.
Management Fee . As compensation for rendering the
Management Services, Company shall pay Brand Builders an amount
equal to ten percent (10%) (“ Fee ”) of the
total amount of Distributable Cash distributed to the Members,
other than the Tax Allowance Amount (as such terms are defined in
the Operating Agreement). The Fee shall be payable to Brand
Builders at such times as the Company makes distributions to its
Members in accordance with the Operating Agreement, other than in
the case of a distribution solely of the Tax Allowance Amount. In
addition, Brand Builders shall be reimbursed for all reasonable
expenses incurred in connection with the performance of is duties
under this Agreement, subject to provision of receipts and other
documentation reasonably necessary for the Company’s tax and
business records. Neither Brand Builders, nor its members,
managers, officers, employees or agents shall be paid any other
compensation for Management Services, except as expressly agreed
between the Company and Brand Builders or the relevant person, and
except for any distributions to which Brand Builders is entitled as
a member under the terms of the Operating Agreement. Brand Builders
acknowledges its sole responsibility for all federal and state
withholding taxes, Federal Insurance Contribution Act taxes,
workers’ compensation and unemployment taxes and like
obligations with respect to the Fee. At the end of each calendar
year during the term of this Agreement, the Company shall issue a
Form 1099 to Brand Builders with respect to the Fee.
4.
Representations and Warranties of the Parties . Each
Party hereby represents and warrants to the other Party that, as of
the date hereof, the following statements are true and
correct:
(a)
Organization . Such Party is a limited liability
company validly existing under the laws of the state of Delaware,
and has the power and authority as a limited liability company to
enter into and perform this Agreement.
(b)
Authorization . All action as a limited liability
company on the part of such Party necessary for the authorization,
execution and delivery of this Agreement and for the performance of
its respective obligations hereunder has been taken, and this
Agreement when fully executed and delivered, shall constitute a
valid, legally binding and enforceable obligation of such
Party.
(c)
Effect of this Agreement . Such Party’s
execution, delivery and performance of this Agreement will not
violate any agreement, including but not limited to its respective
operating agreements, to which such Party is bound.
5.
Term . The term of this Agreement shall commence on
the Effective Date hereof and shall continue in full force and
effect until and unless terminated by the mutual consent of the
Parties or otherwise terminated pursuant to this Section 5. Company
may terminate this Agreement at its option in the event Brand
B
