[GRAPHIC OMITTED]
BIOAGRA
X.X. Xxx 0000, Xxxxxxxxxx, Xxxxxxx 00000
(000)000-0000 (000)000-0000 Fax (000)000-0000
THIS AGREEMENT made and entered into on the date last written below by and
between Bioagra, LLC (the "Manufacturer"), a Georgia limited liability company,
with offices at 000 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, XX, XXX and AHD International,
LLC, a Georgia limited liability company ("AHD"), with offices at 0000 Xxxxxxxxx
---
Xxxx XX, Xxxxx 000, Xxxxxxx, XX.
WITNESSETH
WHEREAS, Manufacturer is engaged in the business of manufacturing and
producing the products described in Exhibit A attached hereto (collectively, the
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"Products"); and
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WHEREAS, AHD is engaged in the business of marketing, distributing and
selling chemicals which are used in the manufacture of dietary supplements which
are sold throughout the world; and
WHEREAS, the parties desire to enter into this Agreement, whereby
Manufacturer agrees that it will manufacture and sell to AHD, and AHD agrees
that it will purchase from Manufacturer, the Products, upon the terms and
conditions set forth below.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
do hereby promise and agree as follows:
I. PURCHASE ORDERS. AHD will issue purchase order for product specifying
Product desired, quantity of Product, and shipping and delivery requirements.
Manufacturer agrees to ship product upon acceptance of a Purchase Order.
II. TERM. The term of this Agreement shall begin on April 1, 2007 and shall
terminate on March 31, 2012 and shall be subject to automatic renewal terms of
five years each thereafter, provided with respect to any renewal term, the
Territory shall include only those countries that are not Deficit Countries (as
defined in Section IV below) at the time of the renewal. AHD may elect not to
renew by providing thirty (30) days' prior written notice of termination to
Manufacturer either before the end of the initial term of this Agreement or
before the end of any renewal period.
III. EXCLUSIVITY. Subject to the terms of this Section III, Section IV
below, and Exhibit B, Manufacturer shall not, directly or indirectly, in its own
capacity or through one or more, subsidiaries, affiliates, partners, agents,
distributors, independent contractors, employees, individuals or entities, sell
the Products in the territory defined on Exhibit B (the "Territory") to any
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party other than AHD. Manufacturer agrees that AHD shall be its sole
distributor of Products in the Territory. The exclusivity rights granted
pursuant to this Section III shall be subject to termination with respect to any
country in the Territory in which AHD has not sold the Minimum Amounts as
described in Section IV below. Manufacturer grants to AHD the royalty free
right to sell the Products in the Territory, including the right to use and
sell, and grant others the right to use and sell, the Products in the Territory
under any applicable patent and the right to use, copy and display all
trademarks and trade names of Manufacturer associated with the Products.
Manufacturer retains the right to sell to the customer identified on Exhibit B.
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IV. MINIMUM PURCHASES. If AHD fails to purchase the amount of Products
described on Exhibit A attached hereto (the "Minimum Amounts") within the time
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periods described therein within a country included in the Territory (a "Deficit
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Country"), Manufacturer shall have the right, upon notice given to AHD within 30
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days following the expiration of the relevant time period, to initiate sales of
the Products to parties other than AHD in the Deficit Country. Failure by AHD
to purchase the Minimum Amounts shall not constitute a breach of this Agreement
by AHD, but it shall terminate any exclusivity within the Deficit Country. AHD
shall retain the non-exclusive right to sell Product in the Deficit Country and
the exclusive right to sell in any country in the Territory that is not a
Deficit Country.
V. RETURNS; ACCEPTANCE. AHD may, without limiting any other remedy, return,
at Manufacturer's expense, any or all (a) Product that is damaged or defective,
(b) Product that is subject to a recall or Product that AHD reasonably
determines presents a similar safety risk, (c) Product that does not conform to
the Purchase Order. Any documents signed by AHD acknowledging AHD's receipt of
Products will not constitute acceptance of such Products for purposes of
determining conformity of quality or quantity of such Products.
VI. PRICE. The price for each Product purchased by AHD is set forth on
Exhibit C. Manufacturer shall not increase the prices for Products without
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first giving AHD 90 days prior written notice. Prices may not be increased
within the initial 12 month period of this Agreement and may only be increased
once per year thereafter. The price offered to AHD shall be the best price
given by Manufacturer to its other customers of the Products purchasing similar
quantities. All taxes and duties are the responsibility of AHD.
VII. PAYMENT. The purchase price for the Products shall be paid by AHD in
U.S. Dollars and shall be due 30 days following receipt by AHD of an invoice;
provided, however, if AHD pays the purchase price within 20 days after the
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Products are delivered to it, then AHD shall receive a discount of 1% of the
purchase price of the Products ordered. An invoice may be issued by
Manufacturer upon shipment of the Product. If product is shipped by
Manufacturer for AHD anywhere outside the continental United States, payments
shall be made on the same date as shipment is made by wire transfer.
VIII. SHIPPING; INSURANCE. All Products shall be shipped FOB Hinesville, GA
to the shipping location specified by AHD in its Purchase Order, provided
Manufacturer shall be responsible, at its sole cost and expense, for insuring
the Product until it reaches a designated AHD location in the United States. If
AHD asks Manufacturer to ship Product outside the United States, then AHD shall
be responsible for insuring the Product, and all other costs of transporting the
Products, including, without limitation, any export fees, taxes and custom
duties, if applicable.
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IX. PRODUCT WARRANTY. Manufacturer represents and warrants as follows: The
Products shall conform to the specifications provided by AHD and shall be free
from adulteration and contamination. The Products shall be of a quality
comparable to all samples delivered to AHD. If applicable, the Products shall
be properly tested and packaged and comply with all applicable federal, state,
and local laws, ordinances, rules, regulations, orders, licenses, permits and
other requirements of governmental authorities ("Laws"), including Laws
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pertaining to labeling of Products and disclosure of warnings, directions for
use, and ingredients, if applicable. All Products shall have a shelf life not
less than the shelf life set forth in the specifications provided by AHD. Upon
delivery of the Product to AHD, AHD will receive good and valid title to the
Product.
X. INDEMNITY. Manufacturer agrees to defend, indemnify and hold harmless
AHD, its officers, agents, servants and employees from and against all
liability, court costs, damages, expenses, and losses, including, without
limitation, reasonable attorneys' fees and costs, arising out (a) a breach of
Manufacturer's representations, warranties, and covenants as set forth in this
Agreement, and (b) any claim that the sale of the Products by AHD in the
Territory, or the use of the trademarks or trade names associated therewith,
violates any patent, copyright, trademark, trade name, trade secret or other
intellectual property right of any third party.
XI. INSURANCE. During the term of this Agreement and for a period of three
years thereafter, Manufacturer shall maintain appropriate insurance coverage,
consistent with industry standards, in the type and amount as would be obtained
by a prudent provider of the Products. In no event shall the limits of said
policies be considered as limiting the liability of Manufacturer under this
Agreement. Manufacturer will provide insurance certificates to AHD upon AHD's
request. All such policies shall name AHD as an additional insured.
XII. CONFIDENTIALITY. The terms of this Agreement, any information provided
by Manufacturer to AHD, and any information provided by AHD to Manufacturer
pursuant to this Agreement ("Confidential Information"), shall be maintained in
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confidence by the parties and not disclosed to any third party or used for any
purposes except for the purpose of performing under this Agreement and enforcing
a party's rights under this Agreement. The specifications for the Products
provided by AHD to Manufacturer shall be the Confidential Information of AHD.
Each party will use reasonable steps to protect the Confidential Information of
the other party against unauthorized disclosure or use. Notwithstanding the
foregoing, the terms of this Agreement may be disclosed by a party to its
attorneys, accountants, financial advisors, and, subject to the execution of a
written confidentiality agreement in form reasonably satisfactory to the owner
of the Confidential Information, any potential purchaser or acquirer of a party.
The parties acknowledge that disclosure of the Confidential Information would
result in irreparable damage to the owner of the Confidential Information, and
in addition to any other rights or remedies available to it, a party shall be
entitled to injunctive relief in the event of any breach or threatened breach of
this Section. Confidential Information shall not include information that is
generally available to the public (through no fault of the receiving party), was
known to the receiving party prior to disclosure by the disclosing party, is
rightfully disclosed to the receiving party by a third party, or is
independently developed by the receiving party without use of or access to the
Confidential Information as evidenced by its written records. Each party agrees
to return all such Confidential Information to the disclosing party promptly
upon the termination of this Agreement. All such information will remain the
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disclosing party's exclusive property. If either party is required by law to
disclose the Confidential Information of the other party, the receiving party
shall notify the disclosing party prior to disclosure and shall cooperate in the
efforts of the disclosing party to limit or seek confidential treatment of the
Confidential Information.
XIII. TERMINATION. This Agreement may be terminated by either party, if the
other party breaches any of its obligations set forth in this Agreement and
fails to cure such breach within 30 days following receipt by the breaching
party of written notice from the non-breaching party, which notice sets forth in
reasonable detail the nature of the breach. The provisions of Sections IX
through XVIII shall survive any termination or expiration of this Agreement.
XIV. GOVERNING LAW; JURISDICTION. This Agreement shall be construed under,
and be governed by, the laws of the State of Georgia, United States of America,
without reference to any applicable conflict of laws, rules or provisions or the
Convention on Contracts for the International Sale of Goods. Manufacturer
irrevocably consents to the venue and exclusive jurisdiction of the courts in
Xxxxxx County, Georgia, with respect to any dispute arising out of this
Agreement.
XV. NOTICES. All notices or communications under this Agreement must be in
writing and are deemed to have been duly given (i) on the date of receipt if
delivered personally (including delivery by courier service), (ii) on the date
of transmission if transmitted by facsimile, with written confirmation of
receipt received, or (iii) five days after mailing if delivered by the postal
service. All notices shall be sent to the respective parties at the following
facsimile numbers and addresses, or such other facsimile number or address as a
party may provide to the other by written notice complying with this Section:
AHD: AHD International, LLC
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
XXX
Attention: Xxxx Xxxxxx
Fax No. 000-000-0000
Manufacturer: Bioagra, LLC
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
XXX
Attention: Xxxx Xxxxxxxxxx
Fax No. 000-000-0000
XVI. ASSIGNMENT; BINDING EFFECT; MODIFICATIONS. This Agreement may not be
assigned by Manufacturer or by AHD without the prior written consent of
Manufacturer or AHD, provided this Agreement may be assigned by either party in
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the event of a sale of all or substantially all of the assets or equity
interests of the party or in connection with a merger, recapitalization, or
similar transaction. This Agreement shall bind the parties hereto and their
successors and permitted assigns. This Agreement may not be modified or amended
in any respect except in writing signed by both parties. None of the provisions
of this Agreement shall be deemed to have been waived by any act or acquiescence
on the part of party, their agents or employees, and the provisions of this
Agreement may be waived only by instruments in writing signed by an authorized
officer of the respective party. No waiver of any provision of this Agreement
shall constitute a waiver of any other provision or of the same provision on
another occasion.
XVII. ENTIRETY OF AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to its subject matter, and supersedes
and terminates all other agreements, understandings, covenants, conditions or
undertakings, oral or written, concerning such subject matter of this Agreement.
XVIII. COUNTERPARTS. For the convenience of the parties, this Agreement may
be executed in one or more counterparts, and each counterpart is deemed to be an
original.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as on the date last written below.
AHD INTERNATIONAL, LLC BIOAGRA, LLC
By: ___________________________ By: ___________________________
Xxxx Xxxxxx, President Xxxx Xxxxxxxxxx, President
Date: _________________________ Date: _________________________
NOTE; AS AGREED TO PARAGRAPH XI- INSURANCE IS
BEING APPLIED FOR AND AS SOON AS IT'S RECEIVED SAID
COPY SHALL BE SUBMITTED TO AHD.
__________ _____________
NJB JA
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EXHIBIT A
PRODUCT; MINIMUM AMOUNTS
PRODUCT: Beta-1,3/1,6-D-glucan
MINIMUM AMOUNTS: To retain exclusivity within a country within the Territory,
AHD must sell the following minimum quantities of the Product within such
country during each year indicated below:
Year 1 (December 1, 2007- November 30, 2008): Average of 500 Kg/month/ country
Year 2 (December 1, 2008- November 30, 2009): Average of 1000 Kg/month/country
Years 3-5 (December 1, 2009- March 31, 2012): Average of 2000 Kg/month/country
Notwithstanding the foregoing, the minimum amounts set forth above shall be
reduced in half for a country during any month in which AHD does not have
exclusive rights for all markets in the respective country.
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EXHIBIT B
TERRITORY
TERRITORY: AHD will have exclusive rights, if so desires, to distribute the
Products to all users in the following countries:
1. Canada
2. Xxxxx
0. Xxxxxx
0. Xxxxx
5. Vietnam
6. South Korea
7. Australia
8. Xxx Xxxxxxx
0. Xxxxx Xxxxxx (exclusive rights for the human market only;
non-exclusive rights for non-human markets)
10. Germany
11. Xxxxxxx
00. Xxxxxx (exclusive for human market only until after August 2007; after
August 2007, exclusive for all markets)
13. United States; provided in the United States of America, AHD will have
exclusive rights only to the human and aquaculture markets (except for
Caribbean Seafood Co of Waycross, GA). AHD will have nonexclusive
rights to all other markets in the United States except as listed
below. Both AHD and Manufacturer will disclose their known customer
lists in the United States and will work together to prevent any
possible conflict.
- AHD may not distribute the Products under the name "Agrastim" in the
poultry, cattle, and swine markets in the states of Delaware,
Maryland, New Jersey, North Carolina, Pennsylvania, Tennessee, Texas,
Virginia, or West Virginia.
- AHD may not distribute the Products to Premier Organic Farms
(Sherman, TX and Abbeyville, LA).
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EXHIBIT C
PRICING
The prices for the cumulative amount of Products purchased by AHD shall be set
forth in a separate Confidential Pricing Memorandum, which shall be signed and
dated by both parties.
