EXHIBIT 10.88
MANUFACTURING AGREEMENT
THIS MANUFACTURING AGREEMENT ("Agreement") made as of this 21st day of
May, 2002 between XXXX PHILIPPE FRAGRANCES, LLC, a New York limited liability
company, with principal offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
("Company"), and FRAGRANCE IMPRESSIONS CORPORATION, a Delaware corporation, with
principal offices at Xxx Xxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000 ("Manufacturer").
WHEREAS, Tristar Corporation, Debtor-In-Possession in the Chapter 11
proceeding, Case no. 01-53706, U.S. Bankruptcy Court, Western District of Texas,
San Antonio Division, as Seller and Company as the Purchaser thereunder, have
entered into an agreement to purchase certain assets of Seller dated 18 April
2002 (the "Asset Purchase Agreement");
WHEREAS, Seller, Company and Manufacturer are entering into a
Non-Competition and Non-Solicitation Agreement, dated the date hereof (the
"Non-Competition Agreement");
WHEREAS, Company owns, develops and markets a broad range of fragrances,
cosmetic and health and beauty products;
WHEREAS, Manufacturer, a start-up entity, is the successor in interest to
a manufacturer of fragrances and cosmetics; and
WHEREAS, Company desires Manufacturer to manufacture in accordance with
Company's specifications certain fragrances and cosmetics in finished, packaged
and salable form, as well as to manufacture plastic caps and collars, cosmetic
pencils and color or screen bottles as ordered by Company.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions contained herein, the parties hereby agree as follows:
1. MANUFACTURE OF PRODUCTS.
(a) Subject to the terms and conditions contained in this Agreement,
Company will utilize Manufacturer as its exclusive manufacturer for the lines of
products (the "Products"), the brands, of which are attached hereto as SCHEDULE
1A. and the formulae and specifications to be provided in Product Purchase
Orders (as hereinafter defined) to be submitted by Company (the
"Specifications").
(b) Manufacturer shall provide the manufacturing and filling services
set forth in SCHEDULE 1B (collectively the "Filling Services"), including but
not limited to, labor, chemicals (excluding fragrance oil), compounding, filling
and packaging, and shall deliver the Products to Company on a turn-key basis in
finished, packaged and salable form. In addition, Manufacturer shall provide,
and Company shall purchase from Manufacturer, as ordered by Company
(i) caps and collars as a manufactured component, i.e., cost of
all components of caps and collars, including but not limited to, resin, as well
as labor and all other costs in connection with delivery of such manufactured
component shall be borne by Manufacturer,
(ii) Apple Pencils as a on a turn-key basis in finished,
packaged and salable form, with cost of all components as well as labor and all
other costs in connection with delivery of Apple Pencils shall be borne by
Manufacturer.
(c) Manufacturer agrees to supply 100% of the total requirements of
Company in connection with the Filling Services for Products. In the event
Manufacturer cannot supply 100% of the total requirements of Company, then in
such event, Company shall have the right to procure Filling Services for
Products from a third party, and the quantities so procured shall be credited
against the minimum purchase quantities has hereinafter set forth.
(d) Company will supply Manufacture with all components for the
Products at its expense, including fragrance oil, but excluding butane, alcohol,
colorant, resin and pencil components which shall be supplied by Manufacturer in
sufficient quantities to meet the requirements of Company.
(e) All Products will be stored in the Manufacture's warehouse as set
forth in PARAGRAPH 12 hereof. During the first year of the Term, Company shall
have the right to terminate Distribution Services upon three (3) months notice
to Manufacturer. After the first year of the Term Company shall have the right
to terminate Distribution Services upon six (6) months notice to Manufacturer.
If Distribution Services are terminated, then all merchandise produced by
Manufacturer will be shipped Freight Collect, F.O.B. destinations selected by
Company.
2. MANUFACTURING PRICES AND PAYMENT; SUBORDINATION.
(a) Manufacturer shall provide the Filling Services and supply
finished Products to Company at the costs as set forth on the annexed SCHEDULE
2A, subject to the provisions of Paragraph 2(b) hereof.
(b) Notwithstanding the provisions of PARAGRAPH 2(A) hereof, it is the
intent of the parties that the costs to be paid by Company for Filling Services
shall be reduced to the costs charged by third party fillers in the market place
as set forth on the annexed Schedule 2A (the "Market Filling Price") by no later
than the end of the second year of the Term. In accordance with such intent, the
costs for Filling Services shall be reviewed every six (6) months during the
first two (2) years of the Term, and shall be accordingly reduced. Nothing in
this PARAGRAPH 2(B) shall be construed as permitting any increase in the cost
paid or to be paid for Filling Services. If the costs for Filling Services have
not been reduced to Market Filling Price by the end of the second year of the
Term, then Company shall have the right to have the Products filled by third
parties and all minimum purchase quantities as hereinafter set forth in this
Agreement shall lapse and be of no force or effect.
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(i) If the cost for Filling Services shall have been reduced to
Market Filling Price by the end of the second year of the Term or earlier, then
Company agrees that it will place purchase orders for Filling Services for the
following twelve months of a minimum of 5.0 million pieces of either natural
spray or aerosol product for brands not included in the Purchase Agreement, and
7.5 million for the following twelve months. The products produced pursuant to
these purchase orders will be shipped to the Company's distribution center FOB
destination.
(ii) Notwithstanding the provisions of PARAGRAPH 2(B) hereof,
Company agrees that, for the longer of the first two (2) years of the Term of
this Agreement or so long as Promissory Note issued in connection with the
closing of the Asset Purchase Agreement remains outstanding, Company shall give
purchase orders for Filling Services of not less than 16 million bottles or cans
per annum.
(c) In consideration of the Filling Services, Company shall remit
payment to Manufacturer within thirty (30) days of the receipt by Company of
such invoice evidencing that such manufacturing has taken place. Manufacturer
covenants and agrees with Company that it shall not pre-invoice for any Filling
Services not actually performed.
(d) This Agreement and Manufacturer's rights hereunder, including but
not limited to, any and all warehouseman's liens, are subject and subordinate to
(i) any and all present and future institutional financing (collectively, the
"Superior Agreement"), (ii) each advance made under a Superior Agreement, and
(iii) any and all renewals, modifications, spreaders, consolidations,
replacements, substitutions and extensions of each Superior Agreement. The
provisions of this paragraph shall be self-operative and no further instrument
of subordination shall be required. Manufacturer shall promptly execute and
deliver, at its expense, any instrument, in recordable form if requested, that
Company may reasonably request to evidence and confirm such subordination. In
the event that Manufacturer within seven (7) days after Company's request
therefor, has not executed or delivered such instrument, then Manufacturer
hereby grants to Company an irrevocable power of attorney to effect same in the
name and stead of Manufacturer. Company need not take any other action, nor have
any other documents executed, to effect such power of attorney. Manufacturer
expressly acknowledges and agrees that such power of attorney is irrevocable and
shall be deemed to be coupled with an interest.
3. PRODUCTION SCHEDULING.
(a) Company shall provide Manufacturer with its estimated 6-month
rolling forecasts of Company's requirements for supply of the Products, divided
into quarterly quantities and updated quarterly. Except for the first forecast
which shall be delivered upon the execution and delivery of this Agreement, and
which shall be through December 31, 2002, each such forecast will be for a
6-month period beginning on the first of a calendar year quarter and shall be
due 30 days before commencement of the 6-month period to which it applies. The
forecasts delivered hereunder are not firm commitments by Company to order or
purchase the Products, but are provided only as a guide to assist Manufacturer
in scheduling production.
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(b) Company will issue to Manufacturer production orders which shall
serve as a firm order for the Products (each, a "Product Production Order").
Such Product Production Orders shall be issued at least 60 calendar days prior
to the anticipated delivery date for Products covered by such order or such
other lead time and batch sizes as are customary for Products. Company will use
its reasonable efforts to give Manufacturer longer lead times whenever possible
and Manufacturer will use all reasonable commercial efforts to fulfill any short
lead time orders. Manufacturer agrees that it shall adhere a maximum loss factor
of 1.5% in the aggregate and on an annual basis, and shall provide appropriate
credits to Company for exceeding such limits.
4. COVENANTS OF MANUFACTURER.
(a) Manufacturer shall only manufacture the specific number of
Products as requested by Company and at no time shall manufacture excess goods
or overruns in excess of five (5%) of the order. Manufacturer shall not sell any
Products to any third parties.
(b) Manufacturer shall manufacture the Products and packaging in
conformity with the Specifications which will be set forth on the Product
Purchase Orders.
(c) Manufacturer shall ensure that all Products shall be manufactured
in compliance with and all applicable U.S. federal, state and local laws which
pertain to the manufacture of fragrances and cosmetics.
5. INSPECTION, SAMPLING, LINE CAPACITY, RAW MATERIALS. Manufacturer
shall inspect and sample all raw materials and packaging purchased for the
Products for conformance with the Specifications and shall withhold from use in
the manufacture of the Products any raw materials or packaging determined by
Company not to be in conformity with such the Specifications. Manufacturer will
maintain available line capacity to support the production requirements of the
Products contemplated by the forecasts to be delivered by Company to
Manufacturer hereunder.
6. RECORDS. Manufacturer shall keep complete, true and accurate
records and accounts in accordance with generally accepted accounting principles
applied on a consistent basis from year to year with respect to information used
to determine the manufacturing costs (including, without limitation, raw
materials and packaging) and other information relevant to the manufacture,
packaging or shipping of the Products, quality assurance measures, and all other
procedures utilized in the production process under this Agreement and including
an inventory of all finished goods produced and shipped or held by Manufacturer
as determined by Company. Company or its representatives shall have the right to
audit any and all of such records and accounts of Manufacturer.
7. SAMPLING AND TESTING. Without limiting its warranties herein,
Manufacturer shall perform at its sole cost and expense, the sampling and
testing procedures, including microbiological, analytical and environmental
testing, for the Products in accordance with the Specifications and the quality
control procedures for the Products prior to releasing the Products
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for delivery to Buyer.
8. DEFECTS, DISCREPANCIES. Manufacturer shall remedy any defects or
discrepancies caused by Manufacturer by replacement, at no additional cost to
Company, of any Products rejected by Company in accordance for failure to
conform to the requirements of this Agreement. Manufacturer's obligation under
the prior sentence shall include reimbursing Company for all reasonable
transportation, retrieval, storage and destruction costs associated with the
defective Products. The remedies of this paragraph are in addition to those
contemplated elsewhere in this Agreement.
9. RECALLS. Company shall determine in its sole discretion, and in
accordance with its direction, from time to time, to conduct a voluntary recall,
market withdrawal or field correction (a voluntary or mandatory recall, and any
such market withdrawal or field correction, a "Recall") of any Products
manufactured by Manufacturer. To the extent any such Recall is the result of
deficiencies of any Products arising from Manufacturer's breach hereunder,
Manufacturer shall either replace the recalled Products with an equivalent
quantity of such Products or credit Company for the costs paid by Company
hereunder in respect of such Products. The remedies of this paragraph are in
addition to those contemplated elsewhere in this Agreement.
10. ACCESS. Upon reasonable notice, and during Manufacturer's normal
operations, Manufacturer shall permit Company or its designees access to
Manufacturer's facilities utilized in the receiving, handling, packaging and
storage of packaging, raw materials and the Products for the purpose of
ascertaining Manufacturer's compliance with the Specifications and quality
assurance requirements and otherwise with the terms hereunder in respect of the
Filling Services. Notwithstanding the foregoing, Company's access to and
inspections of the Manufacturer's facilities and operations permitted hereunder
shall not affect Manufacturer's obligations to comply with all requirements of
this Agreement. Manufacturer shall promptly notify Company of any discrepancies
noted during any inspection of Manufacturer's production facilities by the
United States Food and Drug Administration, the United States Public Health
Service, any state or any other legally authorized federal, state or local
regulatory agency and shall also provide Company a list of any discrepancies
noted by any authorities relating to the manufacture, packaging and storage by
Manufacturer of the Products, the raw materials and the packaging materials.
Manufacturer shall allow Company or its designees reasonable access to all
records insofar as they relate to the Products.
11. PRODUCT WARRANTIES. Manufacturer acknowledges that Company has
heretofore not been engaged in the manufacturing, marketing, distribution or
sale of butane aerosol fragrances, and that Company is relying upon the
expertise of Manufacturer in the manufacturing, production, packaging and supply
thereof, including but not limited to, compliance with all applicable law in
connection thereof. Manufacturer warrants that the Product it sells to Company
under this Agreement shall at the time of shipment or delivery to Company:
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(a) be manufactured and packaged in compliance with any and all
applicable requirements of the Federal Food, Drug and Cosmetic Act (the "FFDCA")
and the rules and regulations promulgated thereunder; and
(b) not be adulterated or misbranded within the meaning of the FFDCA
or any state or local laws, the adulteration or misbranding provisions of which
are essentially similar to those in the FFDCA.
12. WAREHOUSING AND SHIPPING OF PRODUCTS.
(a) At the option of Company, Manufacture shall store Products for
Company at its warehouse located at Xxx Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx, in a
segregated location clearly marked as property of Company, and perform the
following services: picking, packing and shipping of Inventory, as required by
Company in accordance with it written orders (collectively the "Distribution
Services").
(b) Throughout the term of this Agreement, Manufacture covenants and
agrees with Company to exercise reasonable care in connection with the storage
of Products, and shall maintain adequate insurance against fire, loss, damage
and theft of Products.
(c) In consideration of the Distribution Services, Company shall pay
to Manufacturer 1.75% of the invoice amount for Products shipped by
Manufacturer, net of taxes and freight, within thirty (30) days of the receipt
by Company of such invoice.
13. TRADEMARKS AND BRANDS.
(a) Manufacturer shall not at any time use, promote, advertise,
display or otherwise commercialize the trademarks for the Brands (the
"Trademarks") or any material utilizing or reproducing the Trademarks in any
manner. Manufacturer acknowledges that Company is the owner of all right, title
and interest in and to the trademarks and the Brands.
(b) To the extent any rights in and to the Trademarks are deemed to
accrue to Manufacturer, Manufacturer hereby assigns any and all such rights, at
such time as they may be deemed to accrue, including the related goodwill, to
Company.
(c) Manufacturer shall (i) never challenge the validity of Company's
ownership in and to the Trademarks or any application for registration thereof,
or any trademark registration thereof and (ii) never contest the fact that
Manufacturer's rights under this Agreement are solely those of a manufacturer
and terminate upon expiration of this Agreement. Manufacturer shall, at any
time, whether during or after the term of the Agreement, execute any documents
reasonably requested by Company to confirm Company's ownership rights. All
rights in the Trademarks other than those specifically, granted herein are
reserved by Company for its own use and benefit.
(d) Without limiting the generality of any other provision of this
Agreement, Manufacturer shall not (i) use the Trademarks, in whole or in part,
as a corporate or trade name or
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(ii) join any name or names with the Trademarks so as to form a new trademark.
Manufacturer agrees not to register, or attempt to register, the Trademarks in
its own name or any other name, anywhere in the world.
(e) In the event that Manufacturer learns of any infringement or
imitation of the Trademarks or of any use by any person or entity of a trademark
similar to the Trademarks, it shall promptly notify Company and thereupon,
Company shall take such action as it deems advisable for the protection of its
rights in and to the Trademark and, if requested to do so by Company
Manufacturer shall cooperate with Company in all respects.
(f) All provisions of this PARAGRAPH 13 shall survive the expiration
or termination of this Agreement.
14. INDEMNIFICATION.
(a) Manufacturer hereby agrees to indemnify and hold harmless Company,
and its affiliates, officers and directors from and against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject whether as a result of any third party claim or otherwise
(including any action, suit or proceeding among Company, Manufacturer and any
indemnified person, whether on account of this contract or otherwise), and to
reimburse each such person so indemnified for any legal fees, costs and expenses
(including the cost of any investigation and preparation) reasonably incurred by
them or any of them in connection with any claim or litigation, whether or not
resulting in any liability insofar as such losses, claims, damages, liabilities,
or litigation arises out of or are based upon any breach of warranty or
representation or the failure by Manufacturer to fulfill any covenant, agreement
or condition contained herein, or as a result of any third party products
liability claims.
(b) Company hereby agrees to indemnify and hold harmless Manufacturer
and its Affiliates, officers and directors from and against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject arising as a result of any breach of warranty or
representation or the failure by Company to fulfill any covenant, agreement or
condition contained herein, and to reimburse each such person so indemnified for
reasonable legal fees, costs and expenses (including the cost of any
investigation and preparation) reasonably incurred by them or any of them in
connection with any such claim or litigation.
(c) Promptly after receipt by an indemnified party under this
PARAGRAPH 14 above of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party, send notice of the commencement thereof to the indemnifying party; but
the omission to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under this
section. In case any such action shall be brought against any indemnified party,
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and, to the extent that
it shall wish, to assume the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying party to such
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indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under this
PARAGRAPH 14 for any legal fees, costs, or expenses subsequently incurred after
the date such notice is given by such indemnified party in connection with the
defense thereof for other than reasonable costs of investigation. No
indemnifying party shall be liable for any settlement of any claim or action
pursuant to this PARAGRAPH 14 effected without the prior written consent of such
indemnifying party; provided, however, that if the indemnifying party does not
consent to a settlement, the indemnified party may nevertheless settle, unless
the indemnifying party secured the indemnified party against loss to the
indemnified party's reasonable satisfaction.
(d) Manufacture covenants and agrees with Company to maintain product
liability insurance policy in the face amount of not less than U.S.$3,000,000.00
naming Company as an additional insured on such policy throughout the term of
this Agreement. Company covenants and agrees with Manufacturer to maintain a
vendor broad form product liability insurance policy in the face amount of not
less than U.S.$3,000,000.00 naming Manufacturer as an additional insured on such
policy throughout the term of this Agreement.
(e) The provisions of this PARAGRAPH 14 shall survive the expiration
of the Term or any other termination of this Agreement.
15. CONFIDENTIALITY. In connection with the responsibilities of the
parties hereunder, each of the parties may disclose (the "Disclosing Party") or
make known to the other (the "Receiving Party"), and each of the parties may be
given access to or become acquainted with, certain confidential information not
disclosed to the general public, including trade secrets, relating to the
business of the other party, its, customers, products, service or other
proprietary items, formulas or ideas, which the Disclosing Party considers
proprietary and desires to maintain confidential (collectively, "Confidential
Information"). The parties hereby agree that during the Term and at all times
thereafter, that it shall not in any manner, either directly or indirectly,
divulge, disclose or communicate to any person or firm, except to or for the
Disclosing Party's benefit as directed by the Disclosing Party, any of the
Confidential Information which the Receiving Party may have acquired as an
incident to it entering into this Agreement, the Receiving Party agreeing that
such information affects the successful and effective conduct of the business
and goodwill of the Disclosing Party, and that any breach of the terms of this
Section is a material breach of this Agreement. The parties shall take all
reasonable measures to prevent its employees, agents and representatives from
disclosing the Confidential Information. Confidential Information shall not
include any documentation, data or information that is (a) already in the
possession of the Receiving Party at the Effective Date of this Agreement, (b)
independently learned by the Receiving Party, (c) rightfully received by the
Receiving Party from a third party having the right to make such disclosure, or
(d) publicly known or that becomes publicly known through no wrongful act of the
Receiving Party.
16. TERM. The term of this Agreement shall be for a period of five (5)
years (the "Term"), subject to, and commencing from, the closing of the Asset
Purchase Agreement (the "Effective Date"), subject to earlier termination as set
forth in this Agreement.
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17. TERMINATION.
(a) Without prejudice to any other rights Company may have, including
but not limited to an action to recover damages, Company may terminate this
Agreement, without liability, at any time upon notice to Manufacturer:
(i) if Manufacturer has failed to (A) fulfill any covenant or
agreement on its part to be fulfilled, or (B) cure a breach of this Agreement
within five (5) business days after the effective date of such notice from
Company; or
(ii) If Manufacturer fails to provide at least 90% of the
requirements of Company as set forth on a Product Purchase Order on 3 occasions
in any 12 consecutive month period through no fault of Company; or
(iii) if Manufacturer sells or otherwise disposes of
substantially all of its business or assets to a third party, or control of
Manufacturer is transferred; or if any one affiliate or former affiliate of
Tristar Corporation ("Tristar"), Debtor-In-Possession, in the Chapter 11
proceeding, Case no. 01-53706, U.S. Bankruptcy Court, Western District of Texas,
San Antonio Division, either becomes the beneficial owners of more than nine
(9%) percent of any class of outstanding equity securities of Manufacturer, or
hold any position as a director or officer of Manufacturer, or otherwise able to
direct the operations of Manufacturer; provided that, for the purposes of this
XXXXXXXXX 00, X.X. Xxxxx, Xxxx Xxxxx or Xxxx Landien shall not be deemed to be
affiliates, but the following persons shall be deemed to be affiliates or former
affiliates of Tristar: Xxx Xxxxx, Xxxxx Xxxxx, or any entity in which Xxx Xxxxx
or Xxxxx Xxxxx owns, directly or indirectly, more than a one percent equity
interest, or any officer, director or employee of any such entity.
(b) During the term of this Agreement, if Company gives notice to
Manufacturer of termination for a breach, or gives notice of default for one or
more breaches on more than two (2) occasions, upon the third such notice
Manufacturer shall no longer have the right to remedy the breach and termination
shall be effective upon the effective time of such notice.
(c) If Manufacturer is adjudicated a bankrupt, or if a petition in
bankruptcy is filed against Manufacturer, or if Manufacturer makes any
assignment for the benefit of its creditors, or if Manufacturer commits any act
of bankruptcy or takes the benefit of any insolvency law, or if Manufacturer
defaults on any obligation of not less than $250,000 which is secured by a
security interest in whole or in part secured by the Products which is not cured
within sixty (60) days, or if a receiver is appointed for Manufacturer or
substantially all of its assets or business, then this Agreement shall
automatically terminate as of the earliest date on which any of the above events
occurred without prejudice to any other rights which Company may have.
(d) In the event this Agreement expires or is terminated in accordance
with this PARAGRAPH 17, then (i) Manufacturer shall promptly cease all Filling
Services, and shall transfer back to Company all works in progress and
transferred goods, (ii) each of the Company and Manufacturer shall promptly
return all Confidential Information received from the other Party in
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connection with this Agreement, without retaining a copy thereof, (iii) each of
the Company and Manufacturer shall honor all credits and make any accrued and
unpaid payment to the other party as required pursuant to the terms of this
Agreement, and (iv) each party shall continue to be subject to and responsible
for its accrued but unperformed obligations and any liabilities in respect of
its prior breach hereof.
18. LIMITATION ON DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE
TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES (EVEN IF THE OTHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),
ARISING FROM ANY PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS
OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
19. CUMULATIVE RIGHTS. The rights and remedies granted in this
Agreement are cumulative and not exclusive, and are in additional to any and all
other rights and remedies granted and permitted under and pursuant to law.
20. NO WAIVER. The failure of any of the parties hereto to enforce any
provision hereof on any occasion shall not be deemed to be a waiver of any
preceding or succeeding breach of such provision or any other provision.
21. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding of the parties hereto and no amendment, modification or waiver
of any provision herein shall be effective unless in writing, executed by the
party charged therewith.
22. ASSIGNMENT. This Agreement may not be assigned by Manufacturer,
and any attempted assignment hereof shall be void and of no effect.
23. PARAGRAPH HEADINGS. The paragraph headings herein have been
inserted for convenience of reference only, and shall in no way modify or
restrict any of the terms or provisions hereof.
24. GOVERNING LAW; CONSENT TO SERVICE OF PROCESS. This Agreement shall
be construed, interpreted and enforced in accordance with and shall be governed
by the laws of the state of New York without regard to the principles of
conflicts of laws. Each party hereto hereby irrevocably consents to the
exclusive jurisdiction and venue of the federal and state courts sitting within
the state of New York with regard to any and all actions or proceedings arising
out of, or relating to, this Agreement, and agrees that service of process may
be made in the manner for providing notice, as specified in PARAGRAPH 25(A)
hereof.
25. NOTICES.
(a) Any notice or other communication under the provisions of this
Agreement shall be in writing, and shall be given by postage prepaid, registered
or air mail, or by hand delivery
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with an acknowledgment copy requested, or by a reputable overnight delivery or
courier service; all to be directed to the addresses set forth above, or to any
new address of which any party hereto shall have informed the others by the
giving of notice in the manner provided herein. Such notice or communication
shall be effective, if sent by postage prepaid, registered or air mail, five (5)
days after it is mailed; if sent by a reputable overnight delivery or courier
service, two (2) days after properly forwarded; or by hand delivery, upon
receipt.
(b) The parties hereto agree to send copies of all notices under this
Agreement by telecopier to the other party, but such notice by telecopier shall
not relieve the sending party of the obligation to forward notice in accordance
with the terms of PARAGRAPH 25(A) hereof.
26. UNENFORCEABILITY; SEVERABILITY. If any provision of this Agreement
is found to be void or unenforceable by a court of competent jurisdiction, then
the remaining provisions of this Agreement, shall, nevertheless, be binding upon
the parties with the same force and effect as though the unenforceable part had
been severed and deleted.
27. COUNTERPARTS. This Agreement may be executed in counterparts, all
of which shall be deemed to be duplicate originals.
28. NO THIRD PARTY RIGHTS. The representations, warranties and other
terms and provisions of this Agreement are for the exclusive benefit of the
parties hereto, and no other person shall have any right or claim against any
party by reason of any of those terms and provisions or be entitled to enforce
any of those terms and provisions against any party.
29. RESOLUTION OF DRAFTING AMBIGUITIES. Manufacturer acknowledges that
it was represented by counsel in connection with the preparation, execution and
delivery of this Agreement, and that its counsel reviewed this Agreement and
that any rule of construction under any applicable law to the effect that
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this instrument the
date first above written.
FRAGRANCE IMPRESSIONS CORPORATION
By: /S/ X. X. XXXXX
---------------
Name: X. X. XXXXX
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Title: PRESIDENT
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XXXX PHILIPPE FRAGRANCES, LLC
By: /S/ XXXXXXX XXXXXXXXX
---------------------
Name: XXXXXXX XXXXXXXXX
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Title: EXECUTIVE VICE PRESIDENT
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SCHEDULE 1A
PRODUCTS
Major Brand Headings:
Royal, Royal Crown, Regal, Euro Collection, Preimere, Club Exclusif all in Eau
de Toilette or Cologne and Apple
Product Types:
1. Aerosol fragrances (Eau de Toilette or Cologne)
2. Body Sprays
3. Deodorant Sticks
4. Eye and Lip Pencils
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SCHEDULE 1B
FILLING SERVICES
o Produce and blend liquid essence or "juice" for fragrance Products with
alcohol according to Company formulas
o Fill juice into containers (glass or metal can)
o Crimp valves onto containers
o Produce caps and collars through injection molding process
o Introduce propellant to containers and apply actuator
o Glass containers to be decorated through screening process or by applying
labels as appropriate; container to be painted where specified.
o Filled containers to be packaged: apply plastic cap and collar; insert one
(1) filled container (glass) into individual folding carton, shrink wrap by
12, place specified quantity into master corrugated shipper, put onto a
pallet and shrink wrap pallet.
o Manufacturing of Apple Pencils (Company is not to supply any raw materials or
components for this line)
14
Schedule 2A
Cost of Filling Services
Premier New Euro Club Ex Regal New Euro Premier Premier Premier
Royal Crown II EDT EDT EDT EDT BS 3.3oz BS 4.5oz XX Xxx Pencils
Butane
Batching
Labor *
Overhead
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Total
==============================================================================================================
Cap Molding
Collar Molding
Pad Printing
Lacquering
SURCHAGE: During the first year of the Term, Company will pay a surcharge of __*___ per bottle
for filling Royal, Crown II, New Euro, Club Exclusive and Regal fragrances only.
This surcharge does not apply to Body Sprays nor Deodorants.
ADDITIONAL NOTE: If application of labels is requested in xxx of pad printing, the labor cost of applying
the lable is allready incuded in the labor rates above.
Market Filling
Prices
Inflation: These Market Filling Prices are subject to increase for inflation on raw materials such as butane,
alcohol and wood.
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*Excised.
