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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 22, 1999
REGISTRATION NO. 333-____________
- -------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
MANNATECH, INCORPORATED
(Exact name of Registrant as specified in its charter)
TEXAS 75-2508900
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
600 S. ROYAL LANE, SUITE 200
COPPELL, TEXAS 75019
(Address of Principal (Zip Code)
Executive Offices)
MANNATECH, INCORPORATED
MARLETT CONSULTANT WARRANT PLAN
(Full title of the plan)
CHARLES E. FIORETTI
600 S. ROYAL LANE, SUITE 200
COPPELL, TEXAS 75019
(Name and address of agent for service)
(972) 471-7400
(Telephone number, including area code, of agent for service)
______________________
CALCULATION OF REGISTRATION FEE
======================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT TO BE OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES REGISTERED PRICE PER OFFERING REGISTRATION
TO BE REGISTERED (1) SHARE (2) PRICE (2) FEE
- ------------------- ------------ ---------- ---------- ------------
Common Stock, par
value $0.0001 per
share
("Common Stock") 336,435 $25.75 $8,663,201 $2,409
(1) The number of shares of Common Stock set forth is the maximum aggregate
number of shares that it is anticipated will be purchased under the
Plan.
(2) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933 and calculated
on the basis of the average of the high and low sales prices of the
Common Stock on February 18, 1999, as reported by the Nasdaq National
Market.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents constituting Part I of this Registration Statement on
Form S-8 (this "Registration Statement") will be sent or given to employees
of Mannatech, Incorporated (the "Company") as specified by Rule 428(b)(1)
promulgated under the Securities Act of 1933, as amended (the "Securities
Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in
this Registration Statement:
(a) The Company's Final Prospectus filed as a part of its
Registration Statement on Form S-1 (File No. 333-63133) prior to
effectiveness of such Registration Statement on January 5, 1999, and
containing the Company's most recent audited financial statements. The
Company was therefor not required to file a prospectus under Rule 424(b) of
the Securities Act. Also, the Company's first annual report is not yet due
and has not yet been filed.
(b) The description of the Company's common stock, par value $0.0001
per share, contained in the Company's Registration Statement on Form S-1
(No. 333-63133) filed with the Commission on September 10, 1998, as amended
by Amendment No. 1 thereto filed with the Commission on October 28, 1998.
No other reports pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), have been due or
filed since the end of the fiscal year covered by the Final Prospectus
referred to in (a) above. All documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment to this Registration Statement
that indicates that all securities offered hereby have been sold or that
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company, a Texas corporation, is empowered by Article 2.02-1 of
the Texas Business Corporation Act (the "TBCA"), subject to the procedures
and limitations stated therein, to indemnify certain persons, including any
person who was, is or is threatened to be made a named defendant or
respondent in a threatened, pending, or completed action, suit or
proceeding because the person is or was a director or officer, against
judgments, penalties (including excise and similar taxes), fines,
settlements and reasonable expenses (including court costs and attorneys'
fees) actually incurred by the person in connection with the threatened,
pending, or completed action, suit or proceeding. The Company is required
by Article 2.02-1 to indemnify a director or officer against reasonable
expenses (including court costs and attorneys' fees) incurred by him in
connection with a threatened, pending, or completed action, suit or
proceeding in which he is a named defendant or respondent because he is or
was a director or officer if he has been wholly successful, on the merits
or otherwise, in the defense of the action, suit or proceeding. Article
2.02-1 provides that indemnification pursuant to its provisions is not
exclusive of other rights of indemnification to which a person may be
entitled under the corporation's articles of incorporation or any bylaw,
agreement, vote of shareholders or disinterested directors, or otherwise.
The Amended and Restated Bylaws, as amended, of the Company provide for
indemnification by the Company of its directors and officers to the fullest
extent permitted by the TBCA. In addition, the Company has, pursuant to
Article 1302-7.06 of the Texas Miscellaneous Corporation Laws Act, provided
in its Articles that, a director of the Company shall not be liable to the
Company or its shareholders for monetary damages for an act or omission in
a director's capacity as director of the Company.
Furthermore, the Company has entered into individual indemnification
agreements with each director of the Company which contractually obligate
the Company to provide to the directors indemnification for liabilities
they may incur in the performance of their duties and insurance or self-
insurance in lieu thereof.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Index to Exhibits, attached hereto on page I-1.
ITEM 9. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
The undersigned registrant hereby undertakes:
(1) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(2) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in
the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration
statement.
(3) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(4) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Dallas, State of Texas on
February 22, 1999.
MANNATECH, INCORPORATED
By: /S/ CHARLES E. FIORETTI
--------------------------------------
Charles E. Fioretti
Chairman of the Board and Chief
Executive Officer
The undersigned directors and officers of Mannatech, Incorporated
hereby constitute and appoint Charles E. Fioretti, with full power of
substitution and resubstitution, our true and lawful attorney-in-fact with
full power to execute in our name and behalf in the capacities indicated
below any and all amendments (including post-effective amendments and
amendments thereto) to this Registration Statement and to file the same,
with all exhibits thereto and other documents in connection therewith with
the Commission and hereby ratify and confirm all that such attorney-in-fact
or his substitute shall lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities and on the date indicated.
SIGNATURE TITLE DATE
/S/ CHARLES E. FIORETTI Chairman of the Board
- ------------------------- and Chief Executive February 22, 1999
Charles E. Fioretti Officer (Principal
Executive Officer)
/S/ SAMUEL L. CASTER President and Director February 22, 1999
- -------------------------
Samuel L. Caster
/S/ PATRICK D. COBB Vice President, Chief February 22, 1999
- ------------------------- Financial Officer and
Patrick D. Cobb Director (Principal
Accounting and Financial
Officer)
/S/ CHRIS T. SULLIVAN Director February 22, 1999
- -------------------------
Chris T. Sullivan
/S/ STEVEN A. BARKER Director February 22, 1999
- -------------------------
Steven A. Barker
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of
Texas, on February 22, 1999.
MANNATECH, INCORPORATED MARLETT
CONSULTANT WARRANT PLAN
By: /S/ CHARLES E. FIORETTI
-----------------------------------------
Charles E. Fioretti
Chairman of the Board and Chief
Executive Officer
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- ------ -----------------------
4.1 --- Warrant dated May 1, 1997 issued to Christopher A. Marlett
(filed as Exhibit 4.2 to the Company's Registration Statement on
Form S-1, as amended (File No. 333-63133), originally filed with
the Commission on September 10, 1998, and incorporated herein by
reference).
4.2* --- Agreement of Engagement made and entered into April 1, 1997,
between the Company and Christopher A. Marlett.
4.3 --- Amended and Restated Articles of Incorporation of the
Company (filed as Exhibit 3.1 to the Company's Registration
Statement on Form S-1, as amended (File No. 333-63133),
originally filed with the Commission on September 10, 1998, and
incorporated herein by reference).
4.4 --- Amended and Restated Bylaws of the Company (filed as Exhibit
3.2 to the Company's Registration Statement on Form S-1, as
amended (File No. 333-63133), originally filed with the
Commission on September 10, 1998, and incorporated herein by
reference).
4.5 --- Amendment to the Bylaws of the Company (filed as Exhibit 3.3
to the Company's Registration Statement on Form S-1, as amended
(File No. 333-63133), originally filed with the Commission on
September 10, 1998, and incorporated herein by reference).
4.6 --- Specimen Certificate for shares of Common Stock, $0.0001 par
value, of the Company (filed as Exhibit 4.1 to the Company's
Amendment No. 1 to the Registration Statement on Form S-1, as
amended (File No. 333-63133), originally filed with the
Commission on October 28, 1998, and incorporated herein by
reference).
5* --- Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
23.1*--- Consent of PricewaterhouseCoopers LLP.
23.2*--- Consent of Belew Averitt LLP
23.3*--- Consent of Akin, Gump, Strauss, Hauer & Feld L.L.P.
(included in its opinion filed as Exhibit 5 to this Registration
Statement)
24* --- Power of Attorney (included on signature page of this
Registration Statement).
* Filed herewith
Exhibit 4.2
AGREEMENT OF ENGAGEMENT
This Agreement of Engagement (the "Agreement") is made and entered
into this /1/ day of April, 1997, between Mannatech Incorporated, a Texas
corporation ("Company"), and Christopher A. Marlett ("CAM").
In consideration of and for the mutual promises and covenants
contained herein, and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged the parties agree as
follows:
1. PURPOSE. Company hereby engages CAM as a non-exclusive except as
herein otherwise provided in Paragraph 3(d), independent advisor and
consultant (and not as an agent) during the term specified hereinafter to
render consulting advice to Company upon the terms and conditions as set
forth herein.
2. TERM. This Agreement shall be effective for a period of twelve
(12) months (the "Term"), unless otherwise earlier terminated in accordance
with Paragraph 17, commencing on the date of this Agreement.
3. DUTIES OF CAM.
(a) During the term of this Agreement, CAM will provide Company
with such consulting advice with respect to financial planning, capital
structure issues, the development of a business plan and the evaluation of
financing alternatives as is reasonably requested by Company. In
performance of these duties, CAM shall provide Company with the benefits of
its reasonable judgment and efforts. CAM's duties shall include, but will
not necessarily be limited to, the following:
(i) Advice regarding the existing and
possible alternative share and financial structures for
the Company;
(ii) Advice regarding the formulation of
business and financing goals and plans;
(iii) Advice concerning strategic issues,
including Dynamic Eight Partners, other alliance
partnerships and joint ventures;
(iv) Advice concerning short and long range
financial planning;
(v) Exposing the Company to business
opportunities and potential institutional and other
investors;
(vi) Advice regarding the implementation of
the Company's goals and plans;
(vii) To use his reasonable diligence and care
to comply with all reasonable requests of the Company
and to perform, in a reasonable and cooperative manner,
the duties of CAM hereunder.
(b) In connection with rendering its advice hereunder, CAM and
its employees and agents shall be given reasonable access to Company's
officers, premises, and records.
(c) Company acknowledges that CAM's advice pursuant hereto does
not and will not constitute any guarantee or other assurance as to the
ability of the Company to obtain financing or to accomplish any other goals
or plans of Company. This Agreement contains the entire compensation
payable by Company to CAM for any and all services.
(d) Company acknowledges that CAM retains the right to provide
consulting advice to other parties. Nothing herein contained shall be
construed to limit or restrict CAM in conducting such business with respect
to others, or in rendering advice to others or conducting any other
business, except as otherwise herein provided. CAM, however, will not
provide consulting advice in favor of any other parties engaged in (or who
may use the advice or pass on their advice in favor of any other persons
engaged in) the same business without Company's prior written consent.
(e) The foregoing notwithstanding, CAM shall not, during the
period of its engagement to the Company, or any renewals or extensions
thereof, represent for a similar undertaking as is the subject of this
Agreement, any company or person which sells or offers for sale or
distribution any nutritional or dietary supplement product or which offers
any product or service for sale through direct or multi-level sales,
without the prior written consent of the Company, which shall not be
unreasonably withheld.
(f) During the period of this Agreement, CAM shall not disclose
any information or make any representations or warranties to or in favor of
any person whatsoever in relation to the Company or its business or
activities or relating to shares in the Company without the prior written
consent of the Company, at its absolute and unfettered discretion following
full disclosure having been made of the identity of the persons to whom the
disclosures, representations or warranties will be made and the content,
manner, and context thereof.
4. COMPENSATION. The Company shall pay CAM the sum of $20,000 upon
execution of this Agreement and thereafter shall pay $20,000 on the first
business day of each month for the Term of this Agreement.
5. EXPENSES. Company shall advance or, upon billing, promptly
reimburse CAM for reasonable and actual out-of-pocket expenses for travel,
lodging, meals and incidentals reasonably related to travel, long-distance
telephone charges, express mail services, and such other items as the
parties may from time-to-time agree, incurred by CAM in connection with the
services rendered by CAM pursuant to this Agreement.
6. PROPRIETARY INFORMATION.
(a) CAM acknowledges and agrees that it is in a fiduciary
relationship with Company and agrees that it will not sell or use in any
manner not authorized in writing by Company, or disclose any information
provided to CAM by the Company or its employees, agents, or
representatives, including without limitation any of the Company's trade
secrets, technical information, agreements, or other proprietary
information or information concerning the Company's current and any future
proposed operations, services, or products, regardless of whether such
information was obtained prior to, during or after the engagement of CAM by
the Company pursuant to this Agreement, unless CAM is authorized to do so
in writing by the Company and/or Company releases such information to the
public via public announcements or announcements on recognized stock
exchanges.
(b) For the purpose of this Paragraph 6, disclosures made to CAM
which are specific (e.g. as to chemistry, biology, pharmacology or the
principles of any scientific or engineering matter and the like which
relate to the trade secrets, technical information or other proprietary
information of the Company) shall not be deemed to be within the public
domain merely because individual aspects of the same are within the public
domain or were in the prior possession or receipt of Confidant prior to the
establishment of a relationship of confidence, and accordingly, CAM is not
free to disclose the same to third parties absent written permission of the
Company.
(c) CAM may disclose confidential information required to be
disclosed by a lawful and valid subpoena from any court of competent
jurisdiction or state or federal law enforcement or regulatory agency,
provided that should CAM be subpoenaed by any such court or governmental
entity, it will advise the Company of the subpoena, and if asked,
reasonably cooperate with the Company in the filing and pursuing of any
objections, motions to quash, and/or requests for protective order, it
being expressly understood that:
(1) The Company shall be solely responsible for payment of
any and all costs, fees or expenses should such event
occur; and
(2) The Company shall have the right to the counsel of its
choice for such purposes; and
(3) CAM will follow any subsequent court or administrative
order entered in the matter as to compliance with such
subpoena.
(d) If applicable, CAM may disclose the confidential information
to its employees and consultants, if any, who shall be admonished
respecting the confidential nature of the confidential data and required to
sign a writing similar in wording and scope to this Agreement.
(e) All confidential information and results, notes, documents
and other written material concerning or related thereto, at the request of
the Company, shall immediately be returned to Company as its property
together with all copies and extracts of the same and writings concerning
the same.
(f) Both parties agree and stipulate that any breach of covenants
of confidentiality or other covenants of this Agreement will give rise to
immediate and irreparable damage to the Company, and that the Company, in
addition to its other remedies, may seek and receive injunctive (including
temporary restraint) relief regarding any such violation of a covenant of
this Agreement. All of the covenants of this Agreement, generally, shall
survive the period of engagement of CAM.
(g) All work product of the Confidant, done in the course of the
engagement by the Company, is the sole property of Mannatech, and the
Confidant shall, at all times, cooperate with Mannatech to assure proper
documentation of such rights in the Company.
7. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND OF CAM. Each
party hereto represents and warrants to the other party hereto as follows:
(a) The execution and delivery of this Agreement, and the
consummation of the transactions contemplated hereby (i) are within the
corporate power and authority of such party, (ii) do not require the
approval or consent of any stockholders of such party, and (iii) have been
duly authorized by all necessary corporate action on the part of such
party.
(b) The consummation of the transactions contemplated by this
Agreement will not result in (i) the breach of, or constitute a default
under, any agreement, indenture, mortgage, note agreement or other
financing agreement to which either CAM or the Company is a party or to
which it or its properties or rights are subject and (ii) will not be in
violation of the rights of any other party, nor result in the creation of
any lien, charge or encumbrance upon the assets or properties of the
Company as it relates to the business of Company or the pending business of
the Company (iii) violate any judgment, order, injunction, decree or award
of any court, arbitrator, administrative agency or governmental body
against, or binding upon, either party (or its affiliates) or upon the
property, assets or business of either party (or its affiliates) or (iv)
constitute a violation by either party of any law or regulation of any
jurisdiction, particularly as such law or regulation relates to the Company
or to the property, assets or business of Company.
(c) This Agreement is valid and enforceable against both parties
in accordance with its terms by the other, except as enforcement may be
limited by applicable bankruptcy, insolvency or other laws affecting the
rights of creditors generally. The execution, delivery and performance of
this Agreement by either CAM or the Company does not violate any law or
rule or regulation or give rise to a cause of action in favor of any person
which will result in any liability to either of the parties.
(d) To the best of each party's respective knowledge and belief,
each such party represents that it has filed all income tax, excise tax,
sales tax, use tax, gross receipts tax, franchise tax, employment, payroll
and withholding taxes, real and personal property taxes, and all other tax
returns which such party is required to file, and has paid or provided for
all taxes shown on such returns, or is properly in extension, as permitted
by applicable law, respecting such returns. Further, each party represents
that it has paid all tax due on returns that such party is required to file
and all deficiencies or other assessments of tax, interest or penalties
which have been served on or delivered to it, or is otherwise diligently
contesting the same.
(e) The business and operations of both parties (and affiliates and
subsidiaries, if any) have not been, and are not, conducted in violation of
any applicable judgment, order, injunction, award, tariff or decree.
Neither party, as to its operations and conduct, has received notice of,
nor does either party have any knowledge of or any reasonable grounds to
know after due inquiry that the business and its operations have not been
and are not, conducted in violation of any Federal, state or local law,
ordinance, regulations, or any other requirement of any governmental body,
court or arbitrator applicable to it or pursuant to which it conducts its
business and operations (except inquiries of various regulators, from time-
to-time, made in the ordinary course of business to the Company).
(f) CAM and all professionals and consultants used by him have all
required licenses, permits, orders, authorizations or approvals of any
Federal, state, local or foreign governmental or regulatory body to carry
on its business as the same is currently being conducted in the places and
in the manner now and heretofore conducted, and all such licenses,
authorizations and permits are in full force and effect. Provided,
however, in the event that a license, permit order, authorization or
approval of any Federal, state, local or foreign government or regulatory
body shall inadvertently lapse or not be timely procured as to any
professionals or consultants used by CAM respecting the undertakings of
this Agreement, such shall not constitute a breach of this Agreement by CAM
provided that such license does not affect the ability of any such
consultant or professional to validly and/or legally render his or her
service to CAM and provided that such license, permit order, authorization
or approval of any Federal, state, local or foreign government or
regulatory body is not in some manner material to the undertakings of this
Agreement by CAM and the legality and validity of the transactions incident
and related thereto. The foregoing notwithstanding CAM and all
professionals and consultants used by CAM are currently in good standing as
to any applicable professional licenses with no pending disciplinary
proceedings against any of them, and none has either received notice of nor
has any knowledge of or any reasonable grounds to know after due inquiry
that the business and operations of CAM and its related consultants and
professionals are not and have not been conducted in material violation of
any such licenses, authorizations and permits, and no proceeding is pending
or threatened to revoke or limit any such license, authorizations or
permits.
(g) Except as disclosed in writing to the Company, CAM is not a party
to any agreement which is similar in scope or content with any third party,
or which provides benefits from a third party with whom a conflict of
interest might exist, it being the intent of the Parties that this
Agreement be exclusive as to the Company with respect to representation in
the areas stated in Paragraph 3(d) hereof.
(h) To the current, actual knowledge of CAM except as disclosed in
writing to the Company, there are no actions, suits, claims or legal,
administrative, regulatory or arbitration proceedings or investigations
(whether or not the defense thereof or liabilities in respect thereof are
covered by policies of insurance) pending against, involving or affecting
CAM any of his property or assets, which, individually or in the aggregate,
might have a material adverse affect on the assets, property, operations,
business or financial condition of the Company, and there are no
outstanding orders, writs, injunctions or decrees of any court,
governmental agency or arbitration tribunal against, involving or affecting
him. None of the actions, suits, claims, proceedings or investigations, if
any, disclosed to the Company, individually or together with any other,
will have a material adverse effect on the operations, business or
financial condition of CAM nor his ability to perform the undertakings of
this Agreement. No suit, action or other proceeding or investigation is
threatened or pending before any court or governmental agency to restrain
or prohibit, or to obtain damages, a discovery order or other relief in
connection with, this Agreement or the consummation of the transactions
contemplated hereby or of any similar nature. This representation and
warranty shall specifically survive the execution, performance and
termination of this Agreement, and CAM shall notify the Company in the
event that any such governmental or legal action is threatened or
undertaken.
8. ARBITRATION. Any and all controversies or claims arising out of
or relating to this Agreement shall be settled by binding arbitration in
Dallas County, Texas, in accordance with the rules of the American
Arbitration Association, and judgment on the award rendered by the
arbitrator(s) may be entered by any court having jurisdiction thereof. The
parties shall be entitled to discovery in accordance with the provisions of
the Texas Rules of Civil Procedure. Nothing herein shall prohibit either
party from seeking injunctive relief in a court of law while the
arbitration is pending.
9. ASSIGNMENT. This Agreement and the rights hereunder may not be
assigned by either party (except by operation of law) without prior written
consent of the other party, but, subject to the foregoing limitation, this
Agreement shall be binding upon and inure to the benefit of the respective
successors, assigns, and legal representatives of the parties.
10. NOTICE. Any notice or other communications between the parties
hereto shall be sufficiently given if sent by certified registered mail,
postage prepaid, or by telecopy, if to Company addressed to it at 600 South
Royal Lane, Suite 200, Coppell, Texas 75019, or if to CAM, addressed to it
at 100 Wilshire Boulevard, Suite 1620, Santa Monica, California 90401, or
to such other address as hereafter by designated in writing by one party to
the other. Such notice or other communications shall, if sent by telecopy,
be deemed to be given upon receipt of the confirmation of its proper
transmission and if outside the hours of 9:00 a.m. to 5:00 p.m. on any
business day in the jurisdiction of the addressee, shall be deemed to be
given at 9:00 a.m. on the next business day. Notices sent by certified or
registered mail or prepaid postage shall be deemed to be received three
business days after the date of forwarding the same. For the purposes of
this Agreement, "business day" shall refer to a day in which trading banks
are open for business.
11. CAPTIONS. The headings of the sections of this Agreement are
intended solely for convenience of reference and are not intended and shall
not be deemed for any purpose whatsoever to modify or explain or place any
constriction upon any of the provisions of this Agreement.
12. ATTORNEYS' FEES. In the event any party hereto shall institute
an action, including arbitration pursuant to Section 8 of this Agreement,
to enforce any rights hereunder, the prevailing party in such action shall
be entitled, in addition to any other relief granted, to reasonable
attorneys' fees and costs.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings of the parties, and there are no representations,
warranties, or other agreements between the parties in connection with the
subject matter hereof except as specifically set forth herein. No
supplement, modification, amendment, waiver or termination of this
Agreement shall be binding unless executed in writing by the parties
hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any provisions hereof (whether or
not similar) nor shall waiver constitute a continuing waiver.
14. COMPLIANCE WITH LAWS. CAM shall be solely responsible to ensure
that all activities done by CAM or by the Company pursuant to the written
instructions of CAM, and all information disseminated, transactions entered
into and the manner of their dissemination and conduct by CAM or by the
Company pursuant to the written instructions of CAM, comply with all
applicable law by either party.
15. OPTIONS. The Company and CAM shall enter into a mutually
acceptable definitive agreement (the "Option Agreement") substantially
containing the terms and conditions set forth in Exhibit "A" hereto, under
which CAM may purchase shares of common stock of the Company for the
consideration stated in Exhibit "A". Should the parties fail to enter into
a definitive Option Agreement, the parties shall nevertheless be bound by
the terms set forth in Exhibit "A" hereto.
16. INDEMNIFICATION BY THE COMPANY AND BY CAM.
(a) CAM hereby agrees to indemnify and save Company and hold
Company harmless in respect of all causes of actions, liabilities, costs,
charges and expenses, loss and damage (including consequential loss)
suffered or incurred by the Company (including legal fees) arising from any
willful or grossly negligent act or omission of CAM or his employees,
servants, and agents and arising from contravention by CAM of any of his
employees, servants, and agents of any of the terms and conditions imposed
on CAM pursuant to this Agreement.
(b) Company hereby agrees to indemnify and save CAM and hold CAM
harmless in respect of all causes of actions, liabilities, costs, charges
and expenses, loss and damage (including consequential loss) suffered or
incurred by CAM (including legal fees) arising from any intentional or
grossly negligent act or omission of the Company or its employees,
servants, and agents and arising from contravention by Company or any of
its employees, servants, and agents of any of the terms and conditions
imposed on the Company pursuant to this Agreement.
(c) No party shall be liable to any other party hereunder for any
claim covered by insurance, except to the extent that the liability of such
party exceeds the amount of such insurance coverage. Nothing in this
clause (c) shall be construed to reduce insurance coverage to which any
party may otherwise be entitled.
17. TERMINATION. This Agreement may be terminated by either party
upon written notice delivered to the other 60 days in advance of the date
noticed for termination. Company may require the immediate cessation of
service by CAM in its notification to CAM, in which case CAM shall
immediately cease the services to be rendered under this Agreement and
return all materials and confidential information to the Company. The
Company shall pay CAM $20,000 per month for a period of two months after
making notification to CAM (for a total aggregate liability to the Company
for early termination of this Agreement of $40,000, determined from the
date of notification, forward) on account of its termination of this
Agreement, as liquidated damages for the early termination of this
Agreement, actual damages in such instances being difficult to assess.
18. SEVERABILITY. Any portion of the indemnification and/or
confidentiality provisions herein which may be prohibited or unenforceable
in any applicable jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability, but
shall not invalidate the remaining portions of such provisions or the other
provisions hereof or affect any such provisions or portion thereof in any
other jurisdiction.
19. GOVERNING LAW. The parties hereto hereby agree that this
Agreement shall be governed by the laws of the State of Texas.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
this day and year first above written.
CAM: /S/ CHRISTOPHER A.MARLETT
-----------------------------
Christopher A. Marlett
COMPANY: Mannatech, Incorporated
-----------------------------
A Texas Corporation
/S/CHARLES E. FIORETTI
-----------------------------
Charles E. Fioretti
Chairman of the Board
EXHIBIT "A"
TO AGREEMENT OF ENGAGEMENT DATED APRIL 1, 1997
BETWEEN MANNATECH, INCORPORATED AND CHRISTOPHER A. MARLETT
TERM SHEET
Re: Mannatech Warrants
1. AMOUNT: 2% of Pre-IPO Company, fully diluted
2. PRICE: $320,000 for 2% (or lesser price if granted to
others)
3. TERM: 7 years or 3 years after shares are
registered, whichever is less
4. VESTING:
(i) 3/4 of 1% upon signing
(ii) balance of 1 1/4% ratably over 11 months
(iii) 2 months of vesting upon early termination
5. PUT RIGHT
("Break up Fee")
(i) Put all option at 300K if Co.
does not go public (or a portion, at discretion of
optionee)
(ii) On early termination they have
% of 300K in ratio to vesting
(iii) Term of Put Right - April
`99 or Co. being public, whichever is earlier
6. FULL ANTI-DILUTION PROVISIONS
7. REGIS RIGHTS: One mandatory, unlimited
piggyback, at expense of Co.
(Right of Indemnification/hold harmless in event of suit)
Exhibit 5
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
ATTORNEYS AT LAW
a registered limited liability partnership
including professional corporations
1700 PACIFIC AVENUE
SUITE 4100
DALLAS, TEXAS 75201-4675
(214) 969-2800
FAX (214) 969-4343
WRITER'S DIRECT DIAL NUMBER (214) 969 - 2800
February 22, 1999
Mannatech, Incorporated
600 S. Royal Lane, Suite 200
Coppell, Texas 75019
Gentlemen:
We have acted as counsel to Mannatech, Incorporated, a Texas
corporation (the "Company"), in connection with the proposed registration
of 336,435 shares of the Company's common stock, par value $0.0001 per
share (the "Common Stock"), as described in a registration statement on
Form S-8 (the "Registration Statement") relating to the Common Stock to be
issued under that certain Agreement of Engagement made and entered into
April 1, 1997, between the Company and Christopher A. Marlett (the "Plan")
which Registration Statement is to be filed with the Securities and
Exchange Commission.
We have, as counsel, examined such corporate records, certificates and
other documents and reviewed such questions of law as we have deemed
necessary, relevant or appropriate to enable us to render the opinions
listed below. In rendering such opinions, we have assumed the genuineness
of all signatures and the authenticity of all documents examined by us. As
to various questions of fact material to such opinions, we have relied upon
representations of the Company.
Based upon such examination and representations, we advise you that,
in our opinion:
A. The shares of Common Stock to be issued under the Plan which are
to be registered pursuant to the Registration Statement have been duly and
validly authorized by the Company.
B. The shares of Common Stock to be issued under the Plan which are
to be registered pursuant to the Registration Statement, when issued and
delivered in accordance with the Plan (and assuming a warrant exercise
price at least equal to the par value of the Common Stock), will be validly
issued, fully paid and non-assessable.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Sincerely,
/s/ Akin, Gump, Strauss, Hauer & Feld, L.L.P.
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 26, 1998, which appears on
page F-2 of the Registration Statement on Form S-1 (File No. 333-63133)
originally filed with the Securities and Exchange Commission on September
10, 1998, and effective on January 5, 1999.
/S/ PRICEWATERHOUSECOOPERS LLP
- ------------------------------
PricewaterhouseCoopers LLP
Dallas, Texas
February 22, 1999
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated August 21, 1997, which appears on
page F-3 of the Registration Statement on Form S-1 (File No. 333-63133)
originally filed with the Securities and Exchange Commission on September
10, 1998, and effective on January 5, 1999.
/S/ BELEW AVERITT LLP
- ----------------------------------
Belew Averitt LLP
Dallas, Texas
February 22, 1999