EX-10.11






NATURADE, INC.

CONSULTING AGREEMENT




THIS CONSULTING AGREEMENT (this “Agreement”), shall be effective as of August 5, 2005
(the “Effective Date”), and is by and between:



(i) NAOMI BALCOMBE, an individual (“Consultant”), and



(ii) NATURADE, INC., a Delaware corporation (the “Company”).



RECITALS




WHEREAS, the Company is engaged in, among other things, the business described in Exhibit
A attached hereto (the “Business”);



WHEREAS, Consultant has knowledge and experience related to the Services (as defined below);
and



WHEREAS, the Company and Consultant mutually desire to enter into an agreement whereby
Consultant will render services in the area of Consultant’s expertise on the terms and conditions
set forth herein.



AGREEMENT




NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth,
the parties hereto agree as follows:




	 	1.	 	Consultant’s Services





(a) Consultant agrees to perform the services as described in Exhibit A (the
"Services”), and as may be mutually amended in writing from time to time by the parties.



(b) Consistent with this requirement, Consultant may represent, perform services for, or be
employed by such additional persons or companies as Consultant sees fit, except to the extent doing
so causes Consultant to breach Consultant’s obligations under this Agreement or the Independent
Contractor Proprietary Information and Inventions Agreement (the “PIIA”) attached as
Exhibit B, or creates a conflict of interest.



(c) Consultant shall devote such time as may be reasonably necessary or appropriate to perform
the Services hereunder; provided, however, that the Company shall make reasonable
efforts to accommodate such other business and personal commitments as Consultant may have.



(d) Consultant shall:



(i) conduct business with a high standard of professionalism and in a manner that reflects
favorably on the Company;



(ii) avoid deceptive, misleading or unethical practices;



(iii) make no representations, warranties or guarantees to any party with respect to the
Company, and only make statements regarding the Company that are consistent with the Company’s
published literature;



(iv) not enter into any contract or engage in any practice detrimental to the interests of the
Company, including, without limitation, making disparaging remarks regarding the Company;



(v) not engage in any acts or omissions that materially impair or damage the Company’s
reputation, or relations between the Company and its customers, potential customers or business
partners;



(vi) comply at all times with all legal requirements, regulations and good business practices
in all applicable jurisdictions, including, without limitation, consumer protection laws, in the
conduct of its business and in the promotion of the Company;



(vii) obtain and maintain at its own expense all licenses and government approvals required to
perform its obligations under this Agreement; and



(viii) refrain from appointing, directly or indirectly, any parties that are not Consultant’s
employees to assist Consultant in performing its obligations or exercising its rights under this
Agreement without providing prior written notice thereof to the Company.



(e) Upon request, Consultant shall provide the Company with written reports of the activities
of Consultant hereunder and the results thereof, and all other information requested by the Company
related thereto.




	 	2.	 	Compensation





As consideration for the services of Consultant hereunder, the Company agrees to pay
Consultant the fees set forth in Exhibit A, issue that number of shares of common stock of
the Company (the “Shares”) as set forth on Exhibit A, and the Earn Out Amount
pursuant to Section 3. The Shares shall be registered by the Company on Form S-8 as promptly as
practicable after the Effective Date, but not later than September 15, 2005, and the parties shall
execute a Lock-Up Agreement attached hereto as Exhibit C in connection with the issuance of
the Shares.




	 	3.	 	Earn Out Amount





(a) For a three (3) year period following the Effective Date (the “Earn Out Period”),
the Company shall pay to Consultant ten percent (10%) of the amount of the increase in contribution
profit of the Business over the Baseline Amount based on the sale of the Company’s products (the
"Earn Out Amount”) commencing on the first day of the month following the Effective Date
and ending on the last day of the twelfth (12th) month thereafter and continuing on each
consecutive twelve (12) month period thereafter for a period of three (3) years (the “Yearly
Earn Out Period”). The contribution profit shall be determined by calculating the gross sales
of the Company’s products less cost of goods sold, direct product promotional expenses, discounts,
allowances, product returns, coupons, rebates, commissions and freight (the “Earn Out
Calculation”). The “Baseline Amount” is $900,000. In determining the contribution profit of
the Company, there shall be no allocation of the Company’s general and administrative expenses.



(b) Not later than 30 days after the end of each Yearly Earn Out Period, the Company shall pay
the Earn Out Amount to Consultant and provide to Consultant (i) a report setting forth the Earn Out
Calculation, including such schedules and data as may be appropriate to support such calculation.
Consultant and its accountants shall be entitled to review the Earn Out Calculation and any working
papers, trial balances and similar materials relating to the Earn Out Calculation prepared by the
Company or its accountants. The Company shall also provide Consultant and its accountants with
timely access, during the Company’s normal business hours, to the Company’s personnel, properties,
books and records to the extent related to the determination of the Earn Out Calculation.



(c) Within 30 days after Consultant’s receipt of the Earn Out Calculation pursuant to Section
3(b), Consultant may notify the Company in writing that it disagrees with the Earn Out Calculation.
Within 30 days after notification by Consultant that it disagrees with the Earn Out Calculation,
Consultant must provide the Company with such reports and calculations that set forth the basis for
any disputed amounts in the Earn Out Calculation (the “Consultant’s Report”). Except as
otherwise provided in this Section 3(c), all costs and expenses associated with the Consultant’s
Report shall be borne by Consultant. If the Company concurs with the adjustments proposed by
Consultant, or if the Company does not object thereto in a writing delivered to Consultant within
30 days after the Company’s receipt of the Consultant’s Report, the calculations set forth in the
Consultant’s Report shall become final and shall not be subject to further review, challenge or
adjustment, absent fraud, and the Company will immediately pay to Consultant the difference between
the Earn Out Amount and the amount determined in the Consultant’s Report. Further, if such
adjustments are equal to or greater than Five Thousand Dollars ($5,000.00), the Company shall
reimburse Consultant for its reasonable, out-of-pocket costs in preparing the Consultant’s Report.
If Consultant does not submit a Consultant’s Report within the 30-day period provided herein, then
the Earn Out Calculation as calculated by the Company shall become final and shall not be subject
to further review, challenge or adjustment, absent fraud.



(i) In the event that Consultant and the Company do not resolve the disagreements set forth in
the Consultant’s Report within 30 days after the date of Consultant’s Report, then such
disagreements shall be referred to a recognized firm of independent certified public accountants
selected by mutual agreement of Consultant and the Company (the “Settlement Accountants”),
and the determination of the Settlement Accountants shall be final and shall not be subject to
further review, challenge or adjustment, absent fraud, and the Company or Consultant, where
appropriate, will immediately pay the difference between the Earn Out Amount and the amount
determined by the Settlement Accountants. The Settlement Accountants shall use their best efforts
to reach a determination not more than 45 days after such referral.



(ii) The costs and expenses of the Settlement Accountants shall be paid by Consultant if the
Earn Out Calculation, as determined by the Settlement Accountants, is greater than the Earn Out
Calculation set forth in the Company’s Earn Out Calculation, and the difference is less than Two
Thousand Five Hundred Dollars ($2,500.00), or if the Company’s Earn Out Calculation was greater
than the Earn Out Calculation finally determined by the Settlement Accountants. If the Earn Out
Calculation, as determined by the Settlement Accountants, is greater than the Earn Out Calculation
set forth in the Company’s Earn Out Calculation and the difference is equal to or greater than Two
Thousand Five Hundred Dollars ($2,500.00), such costs and expenses of the Settlement Accountants
shall be paid by the Company.




	 	4.	 	Expenses





The Company agrees to only reimburse Consultant for all pre-approved (in writing) expenses
reasonably incurred in the performance of the Services upon production of supporting receipts and
documentation. All such pre-approved expenses shall be paid to Consultant within thirty (30) days
following Consultant’s submission of an invoice therefor to the Company.




	 	5.	 	Term of Agreement





(a) This Agreement will become effective on the Effective Date and shall continue until the
termination date set forth in Exhibit A (the “Term”), or as otherwise terminated as
provided herein.



(b) Either party may terminate this Agreement with or without cause at any time by giving
thirty (30) days’ advance written notice of termination to the other party; provided, however, that
if this Agreement is terminated by the Company for any reason other than “cause” ( as defined
below) or this Agreement is terminated by Consultant for “cause”, the Company shall pay to
Consultant all compensation pursuant to Section 2 hereof for the balance of the Term, and shall
reimburse Consultant for all preapproved expenses properly incurred and invoiced in accordance with
Section 4 prior to the termination date. As used herein, “cause” shall solely mean an uncured,
material default under Section 6 of this Agreement.



(c) If this Agreement is terminated by the Company for “cause” (as defined in Section 5(a)) or
by Consultant for any reason other than “cause”, then Consultant shall be entitled to all
compensation earned prior to the termination date and reimbursement for all pre-approved expenses
properly incurred and invoiced prior to the effective termination date in accordance with Section
4.



(d) Upon termination of this Agreement:



(i) Consultant shall return to the Company or destroy (at the Company’s option) and certify
such destruction in writing, all information and material relating to any customer or account of
the Company in the possession of Consultant, including, without limitation, all confidential
information, product literature, advertising, promotional sales aids and other materials supplied
to Consultant by the Company.



(ii) Neither party shall make any statements or take any actions that might harm or interfere
with the other party’s relationship with any accounts or customer. Further, Consultant shall cease
immediately to represent that it is a consultant to the Company.



(iii) The Company shall not be liable for damages of any kind (including, without limitation,
incidental, consequential or punitive damages) resulting from the termination of this Agreement.




	 	6.	 	Default





(a) If either party materially defaults in the performance of this Agreement or the PIIA or
materially breaches any of the provisions of this Agreement or the PIIA, the non-breaching party
may terminate this Agreement if the breaching/defaulting party fails to cure such default or breach
within thirty (30) days of such party’s receipt of written notice thereof from the non-breaching
party. Termination shall be effective immediately upon receipt of notice.



(b) This Agreement shall terminate automatically on the occurrence of any of the following
events:



(i) bankruptcy or insolvency of either party; or



(ii) death of Consultant.




	 	7.	 	Relationship of the Parties





(a) CONSULTANT SHALL HAVE NO AUTHORITY OR RIGHT TO (AND SHALL NOT) ENTER INTO ANY AGREEMENT
(IN THE NAME OF OR ON BEHALF OF THE COMPANY) BINDING UPON COMPANY. Only an authorized executive
officer of the Company shall have such authority and right.



(b) Consultant enters into this Agreement as, and shall continue to be, an independent
consultant. In no circumstance shall Consultant look to the Company as Consultant’s employer,
partner, agent, or principal. Neither Consultant nor any employee of Consultant shall be entitled
to any benefits accorded to the Company’s employees, including workers’ compensation, disability
insurance, retirement plans, or vacation or sick pay.



(c) Consultant, and not the Company, shall be responsible for obtaining, at Consultant’s
expense and in Consultant’s name, disability, workers’ compensation, or other insurance as well as
licenses and permits applicable to Consultant or usual or necessary for Consultant to perform the
Services. Consultant shall maintain professional liability and any other applicable insurance to
cover the Services in such amount and upon such terms as if customary and appropriate. Consultant
shall pay, when and as due, any and all taxes incurred as a result of Consultant’s compensation,
including estimated taxes and payroll taxes. Consultant indemnifies the Company for any claims,
losses, costs, fees, liabilities, damages, or injuries suffered by the Company arising from
Consultant’s breach of this provision.



(d) Consultant and the Company shall provide to each other upon request any information
reasonably necessary to determine their obligations under this Agreement, to fulfill the purposes
of the Services or to maintain accurate records.




	 	8.	 	Place and Manner of Work





(a) Consultant understands that the Services must coordinate with the Company’s established
protocols and security requirements and may from time to time need to be performed at the Company’s
premises. The Company shall advise Consultant of such protocols and security requirements.



(b) Consultant represents that Consultant has the qualifications and ability to perform the
Services in a professional manner, without the advice, control, or supervision of the Company.
Consultant shall be solely responsible for the professional performance of the Services.



(c) Consultant shall and does hereby indemnify, defend, and hold harmless the Company from and
against any and all third party claims, demands, losses, costs, expenses, obligations, liabilities,
damages, recoveries, and deficiencies, including interest, penalties, and reasonable attorneys’
fees and costs, that the Company may incur or suffer and that result from, or are related to, (i)
the negligent performance of the Services and (ii) any material breach of, or material failure of
Consultant to perform any of, Consultant’s representations, warranties, and obligations in this
Agreement or the PIIA.



(d) The Company shall upon demand indemnify, defend, release and hold Consultant harmless from
and against any and all claims, suits, damages, liabilities, judgments, costs and expenses
(including but not limited to reasonable legal fees, settlements and judgments) associated with any
bodily injury, death, damage to property or other damage, including but not limited to any products
liability claims, attributable or alleged to be attributable to any of the Company’s products.




	 	9.	 	Arbitration





(a) disputes between Consultant, including any employees of Consultant, and the Company
relating in any way to this Agreement or the Services to be performed under this Agreement
(including, but not limited to, claims for breach of contract, tort, discrimination, harassment,
and any violation of federal or state law) (“Arbitrable Claims”) shall be resolved by
arbitration before a neutral arbitrator.



(b) The arbitrator shall be selected and the arbitration hearing conducted pursuant to the
Commercial Arbitration Rules of the American Arbitration Association and shall take place in the
county set forth in Exhibit A, unless otherwise agreed by the parties. Arbitration shall
be final and binding upon the parties and shall be the exclusive remedy for all claims covered by
this arbitration provision. Either party may bring an action in court to compel arbitration under
this Agreement, to enforce an arbitration award or to obtain temporary injunctive relief pending a
judgment based on the arbitration award. Otherwise, neither party shall initiate or prosecute any
lawsuit or administrative action in any way related to any Arbitrable Claim.



(c) The Federal Arbitration Act shall govern the interpretation and enforcement of this
section, except if any court finds that the Federal Arbitration Act does not apply, the Florida
Arbitration Act shall govern the interpretation and enforcement of this section. If any court or
arbitrator finds that any term makes this section unenforceable for any reason, the court or
arbitrator shall have the power to modify such term (or if necessary delete such term) to the
minimum extent necessary to make this section enforceable to the fullest extent permitted by law.



(d) THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRABLE
CLAIMS, INCLUDING WITHOUT LIMITATION, ANY RIGHT TO TRIAL BY JURY AS TO THE MAKING, EXISTENCE,
VALIDITY, OR ENFORCEABILITY OF THIS AGREEMENT TO ARBITRATE.




	 	10.	 	Miscellaneous Provisions





(a) Assignment; Successors and Assigns. Consultant agrees that it will not assign,
delegate, transfer, or otherwise dispose of the Services without the written consent of the
Company. Nothing in this Agreement shall prevent the consolidation of the Company with, or its
merger into, any other corporation, or the sale by the Company of all or substantially all of its
properties or assets, or the assignment by the Company of this Agreement and the performance of its
obligations hereunder to any successor in interest or any affiliate of the Company. Subject to the
foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and
their respective heirs, legal representatives, successors, and permitted assigns, and shall not
benefit any person or entity other than those enumerated above.



(b) Entire Agreement. The terms of this Agreement (including the Exhibits hereto) are
intended by the parties to be the final expression of their agreement with respect to the subject
matter of this Agreement and may not be contradicted by evidence of any prior or contemporaneous
agreement, except as expressly set forth in this Agreement. The parties further intend that this
Agreement shall constitute the complete and exclusive statement of its terms and that no extrinsic
evidence whatsoever may be introduced in any judicial, administrative, or other legal proceeding
involving this Agreement.



(c) Amendments; Waivers. This Agreement shall not be varied, altered, modified,
changed or in any way amended except by an instrument in writing executed by the parties hereto.
The failure of either party to insist on strict compliance with any of the terms, covenants or
conditions of this Agreement by the other party shall not be deemed a waiver of any term, covenant
or condition, nor shall any waiver or relinquishment of that right or power be deemed a waiver of
any other or subsequent failure.



(d) Severability; Enforcement. If any provision of this Agreement, or the application
thereof to any person, place, or circumstance, shall be held by an arbitrator or a court of
competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and
such provisions as apply to other persons, places, and circumstances shall remain in full force and
effect, and such provisions shall be enforced to the fullest extent consistent with applicable law.



(e) Governing Law. Except as otherwise provided, the validity, interpretation,
enforceability, and performance of this Agreement shall be governed by and construed in accordance
with the law of the State of Florida, without giving effect to its law regarding the conflict of
laws.



(f) Interpretation. This Agreement shall be construed as a whole, according to its
fair meaning, and not in favor of or against any party. By way of example and not in limitation,
this Agreement shall not be construed in favor of the party receiving a benefit nor against the
party responsible for any particular language in this Agreement. Captions are used for reference
purposes only and should be ignored in the interpretation of this Agreement.



(g) Notices. Except as otherwise expressly provided herein, any notice or payment
required or permitted to be given or paid shall be deemed duly given or paid only if personally
delivered or sent by United States mail and shall be deemed to have been given when personally
delivered or five (5) days after having been deposited in the United States mail, certified mail,
return receipt requested, properly addressed with postage prepaid. All notices or demands shall be
effective only if given in writing. For purposes hereof, the addresses of the parties hereto
(until further notice of a change thereof is given as provided in this section) shall be at the
addresses set forth in Exhibit A.



(h) Headings. The various headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this Agreement or any
provision hereof.



(i) Counterparts. This Agreement may be executed in one or more counterparts and via
facsimile, all of which together shall constitute a single agreement.



11. Acknowledgment. The parties acknowledge that (i) they each have had the
opportunity to consult with independent counsel of their own choice concerning this Agreement and
have done so to the extent they deem necessary, and (ii) they each have read and understand this
Agreement, are fully aware of its legal effect, and have entered into it freely based on their own
judgment and not on any promises or representations other than those contained in this Agreement.



[Signature Page Follows]






1






IN WITNESS WHEREOF, the parties have duly executed this Consulting Agreement as of the
Effective Date.




COMPANY:




NATURADE, INC.




By:/s/ Bill D. Stewart

Name: Bill D. Stewart

Title: Chief Executive Officer





CONSULTANT:




By:/s/ Naomi Balcombe




	 	 	 	Naomi Balcombe, an individual




2









EXHIBIT A





	 	I.	 	Description of the Company’s Business. (Recital A)





	 	 	 
	II.

	 	Wholesale sales to nutraceutical and health food industry.

Services to be Performed by Consultant. (§ 1(a))
	
 
	 	 







Consultant shall use Consultant’s reasonable best efforts to assist the Company by providing
such consulting services as are reasonably requested by the Company, for a maximum of 100
hours per year.



	 	 	 	 	 	 	 
	III.	 	Compensation.	(§ 2)	 	 	 
	
 
	 	$25,000.00 per year

Compensation

Payable: $2083.33 per month

1,800,000 shares of common stock of the Company

The consideration payable pursuant to Section 3.
	 	









     

Company

Initials
	 	









     

Consultant

Initials
	 
	 	 	 	 	 	 






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	III.	 	Compensation.	(§ 2)	 	 	 
	 
	 	 	 	 	 	 
	IV.

	 	Termination Date. (§ 4(a))
	 	

	 	

	
 
	 	 
	 	

	 	







     , 2010.




	 	V.	 	Place of Arbitration. (§ 9)





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Miami-Dade County, Florida.
	 	 	 	 	 	 	 	 
	VI.	 	Address for Notice. (§ 10(g))
	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 
	 
	 	Consultant:	 	The Ageless Foundation, Inc.
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	1521 Alton Road, #512	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	Miami Beach, Florida 33139
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	Attn:  Naomi Balcombe
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	Fax No.:  352-592-9733
	 	 	 	 	 	 	 	 
	 
	 	Company:	 	Naturade, Inc.
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	14370 Myford Rd, #100	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	Irvine, CA  92606
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	Attn:  Bill Stewart
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	Fax No.:  714-573-4822
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	—	 	 	 	—	 
	 
	 	 	 	 	 	 	 	 	 	Company	 	Consultant
	 
	 	 	 	 	 	 	 	 	 	Initials	 	Initials






4




EXHIBIT B




INDEPENDENT CONTRACTOR INFORMATION AND




INVENTIONS AGREEMENT






5






EXHIBIT C




LOCK-UP AGREEMENT





6