Tobacco Production Agreement
Exhibit 6.9
Certain identified information has been excluded
from the exhibit because it is both not material and
is the type that the registrant treats as private or confidential.
This Tobacco Production Agreement (the “Agreement”) between Cabbacis LLC, with its mailing address at 0000 Xxxxxxx Xxxx, Xx. 000, Xxxxxxxxxxxxx, XX 00000 (“CABBACIS”) and [ ] effective as of March 6, 2023 (“Effective Date”).
The parties agree that GROWER will produce tobacco transplants and tobacco leaf from seed provided by CABBACIS as follows:
| 1. | Transplant Production |
| a) | GROWER will produce about [ ] provided by CABBACIS for the 2023 growing season. GROWER will take measures to maintain the identity of the seed and transplants and prevent mixing with any other tobacco. [ ] flue-cured tobacco variety. [ ] Grower shall immediately notify CABBACIS of any excess [ ] seed and CABBACIS will advise GROWER how such seed is to be returned to CABBACIS. |
| 2. | Leaf Production |
| a) | GROWER will grow, harvest, and flue-cure tobacco leaf for CABBACIS during the 2023 growing season [ ] tobacco transplants produced according to Section 1. Any excess [ ] transplants shall be given to CABBACIS or disposed of according to CABBACIS instructions. |
| b) | All [ ] tobacco plants and tobacco are to be identified and segregated from conventional tobacco plants and tobacco. The plots planted with [ ] transplants will be isolated or marked in a manner that will maintain the identity of the [ ] tobacco and prevent mixing with any other tobacco. GROWER will provide CABBACIS with the locations of plots planted with the [ ] transplants. |
| c) | No [ ] seed, plant, plant material, or tobacco shall be transferred to any third party without prior written permission of CABBACIS. |
| d) | If directed to do so by XXXXXXXX, [ ] |
| e) | GROWER will keep CABBACIS informed of the condition and status of the plots of [ ] tobacco and provide access to the plots to allow CABBACIS to take leaf samples prior to the first harvest. |
| f) | GROWER will deliver the total crop of tobacco leaf grown from [ ] transplants to CABBACIS. GROWER will deliver only tobacco leaf grown from [ ] transplants to CABBACIS. CABBACIS shall accept all cured tobacco leaf grown from seed provided by CABBACIS provided it meets CABBACIS’ conditions of acceptance. |
| g) | GROWER shall arrange with CABBACIS an appointment to deliver tobacco in advance of the anticipated delivery date. The delivery location will be mutually agreed by CABBACIS and GROWER. |
| h) | The tobacco will be delivered in xxxxx, each bale with a tag including the designation of [ ] tobacco, GROWER name, and stalk position. |
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| 3. | Payments |
| a) | Total payment for producing the [ ] flue-cured tobacco leaf will be [ ] CABBACIS will pay the balance due to GROWER upon delivery to and acceptance of tobacco. |
| 4. | Delivery and Acceptance |
| a) | Inspection: Upon GROWER’s scheduled delivery of cured tobacco leaf, CABBACIS or a designated agent will |
| i) | inspect for proper packaging, foreign material, nesting, and damage, |
| ii) | test the tobacco leaf for moisture and temperature, and |
| iii) | weigh the tobacco. |
| b) | During receiving and inspection of the tobacco leaf, CABBACIS may reject any portion of the tobacco leaf that contains foreign material, stalks, suckers, or is wet (moisture >22%), damaged, or nested tobacco. |
| c) | GROWER’s tobacco is deemed “accepted” upon completion of inspecting, testing, and weighing. CABBACIS will issue a receipt to GROWER summarizing GROWER’s delivery. |
| d) | CABBACIS reserves the right to return to GROWER at GROWER’s expense any xxxxx that |
| i) | contain nested or damaged tobacco that is found when opening the bale at the processing facility, |
| ii) | contain tobacco that has a moisture content greater than 22%, or |
| iii) | contain tobacco that is not derived from the [ ] seed. |
| 5. | Passage of Title and Risk of Loss |
All risk of loss and damage to GROWER’s tobacco shall remain GROWER’s responsibility until such tobacco is delivered to and accepted by CABBACIS pursuant to Section 4. Risk of loss and damage shall pass to CABBACIS at the time GROWER’s tobacco is accepted by CABBACIS pursuant to Section 4.
| 6. | GROWER’s Representations, Warranties and Covenants |
| a) | GROWER represents and warrants that as of the date of this Agreement and at all times during the Term, GROWER does and shall continue to: |
| (i) | own or possess all property and equipment, and maintain access to the labor reasonably necessary to produce the tobacco leaf to be delivered to CABBACIS under this Agreement, |
| (ii) | implement good agricultural practices, including but not limited to environmentally sound water management systems, pest management systems, crop rotation systems, |
| (iii) | utilize only those herbicides, fungicides, insecticides, nematicides, growth regulators and ripening agents that are currently labeled for use on tobacco in the United States and strictly adhere to all label recommendations, requirements and application rates for any product used with respect to tobacco, |
| (iv) | maintain records of fertilizer usage and application, and implement management practices required by state law, and |
| (v) | maintain records as required by the Environmental Protection Agency (EPA) or any other governmental agency with regard to the purchase and application of agriculture chemicals. |
| b) | GROWER will remove or cause to be released all liens and financing interests with respect to tobacco leaf produced for CABBACIS, effective as of the time GROWER delivers tobacco to the CABBACIS. |
| c) | GROWER shall not propagate or cause propagation of [ ] tobacco or produce any seed of [ ] tobacco. |
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| d) | GROWER warrants that [ ] tobacco will not be introduced into customary trade channels and will be delivered solely to CABBACIS. |
| e) | Other than GROWER’s delivery of the [ ] cured tobacco leaf to a delivery destination agreed to by the CABBACIS, GROWER warrants that no specimen of the [ ] seed, transplants produced from such seed, [ ] harvested or cured tobacco leaf, or any article containing any of the above shall be given, traded, sold or made available to any third party. |
| f) | GROWER shall not alter the [ ] seed or its progeny or any plant part or component thereof through crossbreeding or genetic engineering, use the seed or any part or component thereof to alter any other plant through crossbreeding or genetic engineering, asexually propagate the seed, or propagate the seed. Grower shall not allow any third party to perform any act prohibited in the preceding sentence. |
| g) | GROWER shall not retain any [ ] seed and return any excess seed as outlined in Section 1A above. |
| h) | GROWER shall not retain any [ ] harvested or cured tobacco leaf after delivering the cured tobacco leaf to CABBACIS. |
| 7. | Remedies |
| a) | The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof, and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity. Each party hereto (a) agrees that it shall not oppose the granting of such specific performance or relief and (b) hereby irrevocably waives any requirement for the security or posting of any bond in connection with such relief. |
| b) | If all or a portion of a farm upon which all or any of the tobacco is or will be growing, is taken under any power of eminent domain before the tobacco leaf is harvested and removed and such taking prevents GROWER from harvesting and removing such tobacco, CABBACIS shall be entitled to prosecute a claim for the taking independent of any action by GROWER. |
| 8. | Term |
The term of this Agreement shall be for one year.
| 9. | Right of Entry and Inspection |
CABBACIS shall have reasonable access to plots and barns where the tobacco produced under this Agreement is grown, cured, or stored, and shall be entitled to monitor and inspect all phases of the GROWER’s cultivation of tobacco under this Agreement, including but not limited to the monitoring of crop progress, the inspection of production or curing practices or facilities and the testing and sampling of soil or tobacco. GROWER shall cooperate with CABBACIS in such inspection, monitoring, and testing.
| 10. | Termination for Breach |
The non-breaching party may terminate this Agreement by providing written notice of the alleged breach to the breaching party at the addresses at the beginning of this Agreement. Failure of the breaching party to cure the breach within 20 days of receipt of written notice will cause termination of this Agreement. Upon any breach of GROWER, CABBACIS may exercise any remedies available to it at law.
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| 11. | Confidentiality |
This Agreement is confidential. Furthermore, each party acknowledges that in the course of fulfilling the provisions of this Agreement, they may gain access to highly confidential information of the other party, including but not limited to the production requirements, specifications, field data of [ ], curing and processing technology, grades, payments, production volumes and the identity of customers and other information, disclosure of which would cause irreparable harm. Access to CABBACIS’S confidential information will be restricted on a “need to know” basis with instructions to each person having such access as to the utmost importance of maintaining the strictest confidentiality. Neither GROWER nor CABBACIS nor their respective employees, agents or representatives shall use for their own benefit, or disclose to or use for the benefit of any other person, any confidential information of the other party. As outlined in Section 19, the obligations of confidentiality shall survive the expiration or termination of this Agreement.
| 12. | Disasters |
Either party’s performance of this Agreement shall be excused to the extent it is prevented or delayed by act of God, war, civil insurrection, fire, flood, storm, strikes, lockouts, total or partial failure of transportation or delivery facilities, interruption of power, any federal, state, county, or municipal law, regulation, or order or any other cause beyond each party’s control.
| 13. | Notices |
Any notice required or permitted to be given under this Agreement shall be in writing and shall be sent or delivered to the parties at the addresses above at the beginning of this Agreement by courier service (with proof of delivery), or certified or registered mail (return receipt requested and first-class postage prepaid).
| 14. | Assignment |
This Agreement shall be binding upon the parties and their respective representatives, agents, successors, and assigns. GROWER shall not assign this Agreement without the express written consent of CABBACIS.
| 15. | Independent Contractor |
Nothing contained in this Agreement shall be construed to create a partnership or joint venture or any employment of GROWER by CABBACIS.
| 16. | Headings |
Headings of the sections of this Agreement are for the convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
| 17. | Entire Agreement |
This Agreement constitutes the entire agreement between the parties with respect to the subject matter of the Agreement and supersede all prior agreements and understandings between the parties. No addition to or amendment or modification of any provision of this Agreement shall be binding upon either party unless made in writing and signed by each party.
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| 18. | Governing Law; Submission to Jurisdiction; Specific Performance |
This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its principles of conflict, and the venue of any action pertaining to the subject matter hereof shall be only Erie or Niagara County, New York. Each party submits to the nonexclusive jurisdiction of the United States District Court for the Western District of New York and of any New York State Court sitting in Buffalo, New York for legal proceedings relating to this Agreement. Each party irrevocably waives, to the fullest extent permitted by law, any objection that it may now or in the future have to the venue of a proceeding brought in such a court and any claim that the proceeding was brought in an inconvenient forum. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity.
| 19. | Survival |
Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the parties contained herein shall survive expiration or termination of this Agreement for a period of twenty-four months from such expiration or termination date; and (b) the covenants of the parties contained herein shall survive indefinitely.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date.
| CABBACIS LLC | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Xxxxxxx X. Xxxxxxxx | ||
| R&D Director | ||
| GROWER | ||
| By: | [ ] | |
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