Exhibit 6.19
INTERNATIONAL DISTRIBUTOR AGREEMENT
THIS AGREEMENT is made this day of June, 1997, by and between Food
Extrusion, Inc., a corporation organized and existing under the laws of Nevada
(the "Company"), and SunJoy Cereal-Tech Development Ltd., a corporation
organized and existing under the laws of China ("Distributor").
RECITALS:
A. The Company develops and produces stabilized rice bran and related
products and wishes to develop export sales of its Products to remarketers and
food stuffs manufacturers in the Territory (as defined below);
B. Distributor represents that it is familiar with the market for the
Products, wishes to act as a distributor of the Company's Products in the
Territory (as defined below) and is capable of providing necessary services to
the purchasers of the Products; and
C. The Products are sold under trademarks and trade names that belong
exclusively to the Company and have a valuable reputation and goodwill, which
Distributor acknowledges constitute assets of the Company that have substantial
value.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties agree as follows:
Article 1
DEFINITIONS
1.1 Confidential Information.
"Confidential Information" shall mean all information made available
by the Company to Distributor, its agents or employees, in connection with this
Agreement which the Company protects against unrestricted disclosure to others.
By way of illustration, but not limitation, Confidential Information may include
proprietary technical data, inventions, processes and concepts, vendor and
customer information, financial information and marketing data.
1.2 Minimum Volume Commitments.
"Minimum Volume Commitments" shall mean the minimum purchase levels
for the periods specified on Exhibit B attached hereto, provided, however, that
prior to June 30, 1998, there shall not be any Minimum Volume Commitment
required of Distributor.
1.3 Products.
"Products" shall mean those products offered by the Company for sale
in the Territory which are listed in the Company's International Price List
attached hereto as Exhibit A (the "Price List"), as amended by the Company from
time to time during the term of this Agreement.
1.4 Territory.
"Territory" shall mean the People's Republic of China, Hong Kong
Taiwan and Macau.
1.5 Trademarks.
"Trademarks" shall mean those trademarks, trade names, labels, logos
and other trade-identifying symbols as are presently used by the Company and/or
any of its subsidiaries anywhere in the world in connection with the marketing
of the Products or which may be developed and so used during the term of this
Agreement, including, but not limited to, the trademarks listed on Exhibit C
attached hereto.
Article 2
DISTRIBUTORSHIP
2.1 Appointment of Distributor.
Subject to the terms of this Agreement, the Company hereby appoints
Distributor, and Distributor hereby accepts such appointment, as the exclusive
authorized distributor to sell, distribute and market the Products in the
Territory. Except as provided in Section 2.5(c) herein, the Company agrees not
to appoint any other distributor or representative for the Products within the
Territory during the term of this Agreement.
2.2 Obligations of Distributor.
Distributor agrees to:
(a) Use its best efforts to introduce and diligently promote the
Products in the Territory including, without limitation, attending trade shows
and exhibitions and diligently calling on customers to familiarize them with the
Products;
(b) Train its staff to develop sufficient knowledge of the
Products and the markets for the Products to effectively market and sell the
Products in the Territory
(c) Provide and maintain, at its sole expense, an adequate
organization to promote the sale, distribution and marketing of the Products in
the Territory, which shall include implementing and assisting in promotional and
merchandising campaigns, as it determines in its discretion are advisable or
necessary (provided that any advertising materials which use the Company's
names, trademarks or trade names shall be subject to the Company's prior written
approval), or as are requested or suggested by the Company;
(d) Sell that number of Products necessary to meet the Minimum
Volume Commitments, provided, however, that (i) prior to June 30, 1998, there
shall not be any Minimum Volume Commitment required of Distributor and (ii) the
Minimum Volume Commitment for any period shall be reduced to the extent that the
Company cannot deliver Products for orders placed and confirmed by Distributor
during such period;
(e) Furnish the Company, from time to time as requested by the
Company, with reports relating to the sale of Products, including a list of
Distributor's customers, their addresses, the amounts and types of Products
purchased and the purchase price therefore and, to the extent practical, with
information concerning sales opportunities and competitors' marketing activities
in the Territory;
(f) Provide the Company with quarterly sales forecasts and sales
potential reports and otherwise assist the Company in assessing customer
requirements for the Products, with a view to maximizing the potential market
for the Products in the Territory;
(g) Import the Products into the Territory in sufficient
quantities to fill all Purchase Orders (as defined below) obtained by it and
promptly notify the Company of any orders or inquiries with respect to the
Products which cannot be promptly satisfied by Distributor;
(h) At all times represent the Products fairly, make no false or
misleading representations to customers or other persons with regard to the
Products or the Company and make no statements about the Products that are not
consistent with those described in literature distributed by the Company;
(i) Allow the Company at any reasonable time to examine
Distributor's place(s) of business and Distributor's inventory of Products;
(j) Advise the Company in writing of all other companies and
products which Distributor is representing in the Territory and of any changes
in such companies and products represented; (k) Represent and sell no product in
the Territory which the Company determines to be likely in direct competition
with any of the Company's products;
(k) Represent and sell no product in the Territory which the
Company determines to be likely in direct competition with any of the Company's
products;
(l) Obtain import licenses, pay customs charges and duty fees and
take all other actions required to import the Products into the Territory;
(m) Maintain for at least three (3) years after termination of
this Agreement its records, contracts and accounts relating to the sale of the
Products, and permit examination thereof at all reasonable times by the Company
or its representative; and
(n) In the event of any change in the management or control of
Distributor or any transfer (whether by sale of stock, sale of assets, merger or
otherwise) of any substantial part of Distributor's business, notify the Company
in writing no less than thirty (30) days prior to such change or transfer.
2.3 Obligations of the Company.
The Company agrees to:
(a) During the term of this Agreement and if it deems it
advisable, register and maintain in full force and effect in the Territory
registration of its trade names and trademarks, at its own expense;
(b) Make available to Distributor upon request copies of the
Company's product data sheets, brochures, catalogs, videos or other promotional
materials generally made available in the English language which may be
necessary to promote the sale of the Products in the Territory;
(c) Provide Distributor with technical assistance and information
regarding the Products;
(d) Provide Distributor with reasonable access to the Company's
research and marketing personnel;
(e) Provide training to Distributor's staff, at Distributor's
sole cost and expense;
(f) Establish procedures to monitor and comply with food industry
standards and regulations applicable to the Products in the United States and
the Territory;
(g) Use its best efforts to supply Distributor with the amount of
Products shown in Distributor's periodic sales forecasts delivered to the
Company, provided, however, that Distributor acknowledges and agrees that the
Company may allocate the sale of Products, in its sole discretion, when market
conditions so dictate.
(h) Refer customers in the Territory to Distributor and not
interfere with Distributor's customer relationships in the Territory;
(i) Obtain and maintain in effect during the term of this
Agreement export licenses required to permit the export and delivery of the
Products from the United States into the Territory; and
(j) In all reasonable and proper ways assist Distributor in
promoting the sale of the Products.
2.4 Relationship of the Parties.
(a) The relationship of the Company and Distributor established
by this Agreement is solely that of independent contractors, and nothing
contained in this Agreement shall be construed to (i) give either party the
power to direct and control the day-to-day activities of the other or (ii)
constitute the parties as partners, joint venturers, co-owners or otherwise as
participants in a joint or common undertaking or (iii) make Distributor an agent
of the Company for any purpose whatsoever. Distributor, its agents and employees
are not the representatives of the Company for any purpose, and they have no
power or authority as agent, employee or in any other capacity to represent, act
for, bind, or otherwise create or assume any obligation on behalf of the
Company.
(b) Distributor shall sell Products to its customers at such
prices and on such other terms and conditions as it shall choose. All financial
obligations associated with Distributor's business are the sole responsibility
of Distributor. All sales and other agreements between Distributor and its
customers are Distributor's exclusive responsibility and shall have no effect on
Distributor's obligations under this Agreement. Distributor shall be solely
responsible for, and shall indemnify and hold the Company free and harmless
from, any and all claims, damages, or lawsuits arising out of the acts or
omissions of its employees, servants, agents, independent contractors, or any of
them.
2.5 Term.
(a) Unless terminated sooner as herein provided, the term of this
Agreement shall terminate on June 30, 1998 and shall be automatically renewed
thereafter for successive one (1) year periods, unless either party hereto
serves the other party with written notice of its intention not to renew this
Agreement at least sixty (60) days prior to the expiration of the term then in
effect.
(b) Notwithstanding the foregoing, this Agreement may be
terminated by the Company or the Distributor at will, at any time, and with or
without cause, by delivering written notice of termination to the other party at
the address specified in Section 12.1 hereof at least sixty (60) days prior to
the effective date of termination specified in the notice, regardless of whether
such termination is deemed to be made for just cause.
(c) If the Company elects, in its sole discretion, to terminate
this Agreement effective on or prior to June 30, 1998, the Company shall grant
to Distributor the right to sell the Products to those customers in the
Territory developed by Distributor during the term of this Agreement for a term
of three (3) years following the effective date of termination of this
Agreement; provided, that, such customers (i) have been approved in writing by
the Company (pursuant to criteria mutually agreed to by the Company and
Distributor no later than three months after the effective date of this
Agreement), and (ii) order not less than ten (10) tons of Product during the
first year of such three-year period. The Company shall sell Products to
Distributor at then current prices set by the Company at the time of shipment,
subject to the Company's right to allocate Product, in its sole discretion,
among the Company's customers and distributors. Upon termination of this
Agreement as described in the preceding sentence, the Company and Distributor
shall enter into an amendment of this Agreement to carry out the intent of the
preceding provisions in this Section 2.5(c).
Article 3
TERMS AND CONDITIONS OF SALE
3.1 Purchase Orders.
The Company agrees to sell, and Distributor agrees to purchase, the
Products solely upon the terms and conditions contained in this Agreement. The
Company shall sell the Products to Distributor and Distributor shall purchase
the Products from the Company in accordance with purchase orders ("Purchase
Order(s)") submitted to the Company at the address set forth in Section 12.1
hereof. The Purchase Orders shall be on forms supplied by the Company or on
forms containing the following information: the description and quantity of the
Products being purchased; the unit price per Product and the aggregate purchase
price for Products; the requested delivery date; shipping and insurance
instructions and any other information required by this Agreement or dictated by
the circumstances of the order. The Company shall accept all Purchase Orders
issued to it by Distributor, unless such Purchase Orders are not in conformity
with the terms of this Agreement, or if the Purchase Orders call for Products
which are not then generally offered for sale by the Company in the Territory,
in which case the Company shall have the right to reject such Purchase Order. In
the event of any discrepancy between the provisions of this Agreement and any
Purchase Order, the provisions of this Agreement shall prevail.
3.2 Price.
The purchase price of each Product purchased hereunder shall be [
*** ] The current
Price List is attached as Exhibit A hereto. The Company shall have the right to
change its Price List at any time and from time to time during the term of this
Agreement, provided that the Company shall give Distributor sixty (60) days
advance notice of any such price change. No price change shall be effective for
Products covered by a Purchase Order accepted by the Company prior to the
effective date of such price change. The price of all Products shall include the
cost of packaging for export. All freight, insurance and shipping expense shall
be borne by and invoiced to Distributor.
3.3 Payment.
All Products sold to Distributor will be invoiced upon shipment.
Payment shall be made in United States dollars by irrevocable letter of credit
with a bank acceptable to the Company, to be payable after delivery of the
Products F.O.B. the Company's facility, upon presentation of the invoice and
dock or ship receipts to the bank issuing the letter of credit, and on such
other terms and conditions as the Company may require.
3.4 Late Charge.
If Distributor shall fail to pay any amount owing under this Agreement
when due, Distributor agrees to pay from the due date interest at the lesser of
10% per annum or the highest rate permitted under applicable law on the overdue
balance. Payments by Distributor when there is an amount overdue shall be
applied first to accrued interest.
3.5 Shipment and Delivery.
Products will be shipped within thirty (30) days of receipt of a
confirmed Purchase Order by the Company. Delivery of all Products will be made
*** Portions of this exhibit have been redacted pursuant to a
confidential treatment request.
F.O.B. the Company's facilities in the United States or, with the consent of
Distributor, one or more facilities outside the United States, to a carrier
selected by the Company unless Distributor requests in writing use of a
particular carrier. All Products are identified and all risks of loss pass to
Distributor upon delivery by the Company to the carrier, to Distributor,
Distributor's designated carrier or any other agent of Distributor. In no case
will Distributor be entitled to recover from the Company consequential damages
caused by any delay in delivery or the Company's failure to meet Distributor's
requested delivery date.
3.6 Rescheduling and Cancellation.
Distributor may not cancel or reschedule any Purchase Order or portion
thereof thirty (30) days or less prior to the scheduled shipping date, unless
otherwise agreed in writing by the Company. Distributor may reschedule a
Purchase Order for later delivery by issuing to the Company more than thirty
(30) days prior to the scheduled shipping date a change order rescheduling the
delivery of the Products covered by such Purchase Order, subject to the
Company's approval. Distributor may, thirty (30) days prior to the scheduled
shipping date, cancel any Purchase Order or portion thereof, provided that
Distributor shall give notice to the Company of such cancellation at least
thirty (30) days prior to such scheduled shipping date and provided further that
Distributor shall pay a cancellation charge equal to ten percent (10%) of the
price for the Products canceled as set forth on the Price List then in effect.
3.7 Import and Export Controls.
Distributor shall obtain import licenses and permits, pay customs
charges and duty fees and take all other actions required to accomplish the
import of Products purchased by it from the Company's facility to the Territory
and shall assist the Company, as reasonably requested by the Company, in
arranging for import of Products sold directly by the Company in the Territory.
Distributor shall not export, reexport or transship the Products to any other
country outside the Territory. Distributor agrees that it will not directly or
indirectly export, reexport or transship the Products (including the
documentation thereto), even if otherwise permitted by subsequent authorization
from the Company, except as shall be permitted by the terms of any export and
import licenses and the laws and regulations in effect from time to time in the
United States or any other country. Distributor acknowledges its awareness of
said regulations and agrees that, when requested by the Company, Distributor
shall give written assurances of its compliance with such licenses, laws and
regulations and against such export, reexport or transshipment.
3.8 Exchange Control Restrictions.
If, because of any exchange control restrictions of any country,
Distributor is unable to make payment when due in United States dollars or in
the currency specified by the Company for payment, Distributor shall deposit
such payment in the name of the Company or its nominee in such bank or other
institution in Distributor's country and in such type of account as shall be
specified by the Company. The Company shall be entitled to interest on such
deposit amounts to the extent earned thereon.
3.9 Taxes.
Distributor agrees to pay all taxes, customs duties and assessments
imposed on Distributor or the Company in connection with the distribution and
sale of the Products hereunder, including any sales, use, excise and other taxes
and duties, except for taxes imposed upon the Company's income.
Article 4
TRADEMARKS, TRADE NAMES AND COPYRIGHTS
4.1 Grant of Rights.
The Company hereby grants to Distributor a license to use the Company
Trademarks in the Territory, solely to identify the Products in connection with
the sale, distribution and marketing of the Products in accordance with the
terms of this Agreement. Distributor's right to use the Company's Trademarks
shall be in accordance with the Company's policies in effect from time to time,
including but not limited to, trademark usage and cooperative advertising
policies. Distributor's right to use the Company Trademarks shall cease upon
termination of this Agreement. Distributor shall not, without the Company's
prior written consent, remove, alter or modify the labels, trademarks or trade
names from the Products. Distributor agrees not to affix the Company Trademarks
to products other than the Products and agrees not to register or use any
trademark or trade name confusingly similar to any Company Trademark. Nothing in
this Agreement shall give Distributor any interest in any of the Company's
Trademarks except as provided herein.
4.2 Trademark Registration.
If the Company determines to do so, it may, at the Company's expense,
register the Company Trademarks in the Territory. Distributor shall use the
international trademark symbols, as necessary, in all advertising to indicate
and protect the Company Trademarks and shall use such symbols whenever the
Products are mentioned in Distributor's brochures, catalogs, documentation or
literature.
Article 5
LIMITED WARRANTY
5.1 Limited Warranty.
(a) The Company makes no warranty of any kind respecting the
Products beyond the replacement of any Product returned to the Company (at its
sole option), freight prepaid and found to be defective or not to meet the
Company's published specifications therefore, for a period of ninety (90) days
from the date of invoice of such Products. This is a limited warranty.
(b) The Company's sole and exclusive liability, and the
Distributor's exclusive remedy, for breach of this warranty is, at the Company's
sole option, the replacement of any Product found to be defective.
Article 6
LIMITATIONS ON BRINGING ACTIONS AND LIABILITY
6.1 Limitation of Actions.
Distributor agrees that all claims against the Company, other than for
breach of warranty (which are restricted under Section 5.1 hereof), arising
under this Agreement shall expire and be barred forever unless an action thereon
is commenced in a court of competent jurisdiction in the County of Sacramento,
State of California, U.S.A. within one (1) year following Distributor's
discovery of facts indicating to Distributor that a cause of action on such
claims may exist against the Company.
NO LAWSUIT PERTAINING TO ANY MATTER ARISING UNDER OR GROWING OUT OF THIS
AGREEMENT SHALL BE COMMENCED AND PROSECUTED IN ANY COURT OTHER THAN A COURT
SITUATED IN THE COUNTY OF SACRAMENTO, STATE OF CALIFORNIA, U.S.A.
6.2 Limitation of Liability.
(a) EXCEPT AS PROVIDED EXPRESSLY IN SECTION 5.1 HEREOF, THE COMPANY
SHALL NOT BE LIABLE TO DISTRIBUTOR, TO DISTRIBUTOR'S CUSTOMERS OR TO ANY OTHER
PERSON. DISTRIBUTOR AGREES TO INDEMNIFY THE COMPANY WITH RESPECT TO ANY CLAIMS
AGAINST THE COMPANY FOR INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES,
INCLUDING LOSS OF PROFIT, AND LOSS OF PLANT, EQUIPMENT OR PRODUCTION, ARISING
FROM THE SALE, PURCHASE, RESALE OR SUBSEQUENT USE OF THE COMPANY'S PRODUCTS,
REGARDLESS OF WHETHER THE COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES. DISTRIBUTOR AGREES THAT THIS LIMITATION OF DAMAGES IS REASONABLE AND
WILL NOT CAUSE IT TO LOSE ANY EXPECTED BENEFITS, RIGHTS OR REMEDIES UNDER THIS
AGREEMENT. (b) In no event (including unenforceability of the above limitations
and independent of any failure of essential purpose of the limited warranty and
remedies provided hereunder) shall the Company's aggregate liability for damages
in connection with this Agreement exceed the payments previously made to the
Company by the Distributor under this Agreement. The parties acknowledge that
the limitations set forth in this Article 6 are integral to the amount of
payments made in connection with this Agreement and that, were the Company to
assume any further liability other than as set forth herein, such payments would
of necessity be set substantially higher.
Article 7
PROPRIETARY RIGHTS
Distributor agrees that the Company retains proprietary rights in and
to all product specifications, designs, engineering details, discoveries,
inventions, patents, trade secrets and other proprietary rights relating to the
Products. The Products are offered for sale and are sold by the Company subject
in every case to the condition that such sale does not convey any license,
expressly or by implication, estoppel or otherwise, to manufacture or process
any of the Products.
Article 8
TERMINATION
8.1 Events of Termination.
In addition to all other remedies the parties may have under relevant
laws, either party may terminate this Agreement and cancel any unfilled order(s)
without notice to the other party in the event that such other party:
(a) defaults in any payment due hereunder and such default
continues unremedied for a period of ten (10) days;
(b) fails to perform any other obligation, warranty, duty or
responsibility or is in default with respect to any term or condition undertaken
hereunder, and such failure or default continues unremedied for a period of
twenty (20) days after written notice thereof to such other party, except that
Distributor shall not be entitled to notice and an opportunity to cure its
failure to meet the Minimum Volume Commitments;
(c) is liquidated or dissolved;
(d) is subject to any assignment made for the benefit of
creditors;
(e) is subject to a receiver, or similar officer, appointed to
take charge of a substantial part of such other party's assets;
(f) is unable to pay its debts as they mature;
(g) fails to respond within ten (10) days to a demand for
adequate assurance of such other party's ability to perform under this
Agreement; or
(h) is subject to any petition in bankruptcy, which remains
undischarged for thirty (30) days.
8.2 Applicability of Agreement After Termination.
The Company may refuse to accept any Purchase Orders submitted to it
after a notice of termination has been served but prior to the effective date of
termination. No termination shall affect Purchase Orders accepted by the Company
before notice of termination was received. Distributor shall give the Company a
written accounting within thirty (30) days after the effective date of
termination of its inventory of the Products as of the effective date of
termination. The Company shall have the option, but not the obligation, to
repurchase Distributor's remaining inventory of Products at the same price which
Distributor originally purchased the Products from the Company.
Article 9
FORCE MAJEURE
9.1 Force Majeure Event.
Any delay or failure in the performance of any part or the whole of
this Agreement by either party hereto (except for the payment of amounts due for
Products purchased hereunder) shall be excused, subject to Section 9.2 hereof,
if and to the extent caused by earthquake, typhoon, or other natural disaster,
war, war-like condition, revolution, blockade, embargo or governmental order,
rule or restriction, and the affected part of this Agreement shall be suspended
until the force majeure circumstances have ended.
9.2 Notice.
Neither delay nor failure of performance by the other party shall be
excused unless the party experiencing force majeure sends written notice of such
delay or failure and the reason therefore to the other party within seven (7)
days from the time the force majeure situation becomes apparent.
Article 10
ASSIGNMENT
Distributor has been selected as a distributor because of its
particular attributes and the Company's performance under this Agreement is
offered personally and exclusively to Distributor. Neither this Agreement nor
any part hereof may be assigned by Distributor without the Company's prior
written consent, and any such attempted assignment without such consent shall be
null and void. Any potential assignee must agree to abide by the terms and
conditions of this Agreement. "Assignment" shall be deemed to include the
transfer of substantially all of the assets of, or majority interest in the
voting stock of, Distributor, or the merger, consolidation or reorganization of
Distributor with one or more third parties. Subject to the provisions herein
with regard to assignment, this Agreement shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto.
Article 11
CONFIDENTIALITY
Distributor shall keep strictly confidential as against any third
parties all Confidential Information. The obligation to maintain in confidence
all Confidential Information shall survive termination of this Agreement and
Distributor covenants to maintain such confidentiality for a period of three (3)
years after such termination. Upon termination or expiration of this Agreement,
all Confidential Information represented in written form or any other media,
including but not limited to samples, papers, documents, designs, or other
materials or models, shall be returned to the Company together with any
reproductions or copies thereof.
Article 12
MISCELLANEOUS
12.1 Notice.
Any notice required to be given hereunder shall be in writing and in
English and sent to the parties at the addresses set forth below, or such other
addresses as may be designated by either party, by registered or certified mail,
cable, telex or telecopy. Notices shall be deemed to have been given upon the
expiration of seven (7) days after mailing as aforesaid to the addressee (when
sent by registered or certified mail), upon receipt by the addressee (when
delivered by hand), on the next day (when sent by cable), upon confirmation of
receipt by answer back code (when sent by telex) or upon transmission (when sent
by telecopy or fax).
If to the Company:
Food Extrusion, Inc.
0000 Xxxx'x Xxxxxx Xxxxx
Xx Xxxxxx Xxxxx, XX 00000
Attn: Chief Executive Officer
If to Distributor:
SunJoy Enterprises Corporation
Attn: __________________
12.2 Governing Law and Trade Terms.
The formation, validity, construction and performance of this
Agreement shall be governed by the laws of the State of California, without
application of conflicts of laws principles. Any action or proceeding brought
under or arising out of this Agreement shall be litigated or brought in an
appropriate state or federal court in the County of Sacramento, State of
California, U.S.A. The trade terms under this Agreement shall be governed by and
interpreted in accordance with the provisions of the Uniform Commercial Code, as
adopted in the State of California, and shall not be subject to or governed by
the United Nations Convention on Contracts for the International Sale of Goods.
12.3 Severability.
The provisions of this Agreement shall be deemed to be severable, and
if any provision of this Agreement is found to be invalid by any body of
competent jurisdiction, such invalidity shall not effect the validity of the
remaining provisions hereof.
12.4 Non-Waiver.
The failure of either party to enforce at any time any provision or
provisions of this Agreement shall in no way be considered to be a waiver of
such provision or provisions, nor shall such failure affect the validity of this
Agreement in any way. The failure of either party to exercise any such provision
or provisions shall not be construed as a waiver of any continuing or succeeding
breach of such provision, a waiver of the provision itself, or a waiver of any
other right under this Agreement.
12.5 Definitive Text.
The definitive text of this Agreement shall be in the English
language. This Agreement shall be interpreted in accordance with the plain
English meaning of its terms.
12.6 Article Headings.
The article and section headings used in this Agreement are for the
purpose of convenience only and shall not be construed to limit or extend any
provision hereof.
12.7 Entire Agreement.
This Agreement sets forth the entire agreement and understanding
between the parties and supersedes all prior agreements and understandings
between them with respect to the subject matter of this Agreement. No
amendments, modifications, waivers or supplements to this Agreement shall be
enforceable or binding upon the parties unless executed by a written instrument
expressly referring to this Agreement and executed by the duly authorized
representatives of the parties.
12.8 Survival of Certain Covenants.
Any obligations or duties which by their nature extend beyond the
expiration or termination of this Agreement shall survive any such expiration or
termination and shall remain in effect.
12.9 Attorneys' Fees.
In the event of any action or proceeding arising out of this
Agreement, whether for declaratory relief or other relief, the prevailing party
shall be entitled to such party's costs of suit and attorneys' fees.
12.10 Counterparts; Facsimile Signatures.
This Agreement may be executed in counterparts and shall have the same
force and effect as if all parties had executed one document. Signatures of the
parties may be transmitted by facsimile and shall be deemed legally binding to
the same extent as if original signatures had been delivered.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers or representatives on the day and
year first above-written.
FOOD EXTRUSION, INC.
By: /s/ Xxxxx X. Xxxxx
--------------------
Xxxxx X. Xxxxx
Chief Executive Officer
SUNJOY CEREAL-TECH
DEVELOPMENT LTD.
By: SUNJOY ENTERPRISES
CORPORATION
By: /s/ Xxxx Xxx
---------------
Name: Xxxx Xxx
Title: President - Int'l.
CONFIRMED AND AGREED:
SUNJOY CEREAL-TECH
DEVELOPMENT LTD.
By: /s/ Xxxx Xxx
---------------
Name: Xxxx Xxx
Title: Director
EXHIBIT A
TO
INTERNATIONAL DISTRIBUTOR AGREEMENT
PRICE LIST
Date: June , 1997
Product Price Per Price Per Price Per Pound
Product No. Pound (up to Pound (Over 40,000 lbs.)
2,000 lbs.) (2,000-40,000 lbs.)
Ricex(R)Rice Bran - Reg.
Ricex(R)Rice Bran - Fine
Ricex(R)Fiber - Reg. [ *** ]
Ricex(R)Fiber Concentrate
Ricex(R)Solubles
Terms - Net 30 Days
SRB Products F.O.B. Northern California
RBS Products F.O.B. Montana or Northern California
Packaging:
50# Multi-Walled Poly Lined Bags.
Bulk Totes Available.
*** Portions of this exhibit have been redacted pursuant to a
confidential treatment request.
EXHIBIT B
TO
INTERNATIONAL DISTRIBUTOR AGREEMENT
MINIMUM VOLUME COMMITMENTS
Distributor's Minimum Volume Commitments shall consist of purchases of
Products in the amounts and at the times set forth below (a "purchase" shall be
deemed made for this purpose when the Products have been shipped and payment
received from Distributor):
* Minimum Volume Commitments shall be determined by the Company upon the
renewal, if any, of this International Distributor Agreement.
FOOD EXTRUSION, INC. SUNJOY CEREAL-TECH
DEVELOPMENT LTD.
By: By:
Title: Title:
Date: Date:
EXHIBIT C
TO
INTERNATIONAL DISTRIBUTOR AGREEMENT
COMPANY TRADEMARKS
Trademark Registrations
Xxxx Reg. No. Reg. Date
RICEX 1,642,198 04/23/91
SATIN FINISH 1,803,034 11/09/93
Pending Trademark Applications*
Xxxx Appl. No.
RICE VITAE 75/208,666
FOOD EX AND DESIGN 75/222,694
OCTAGON DESIGN 75/222,698
MAX`E' 75/222,799
EQUINEX 75/224,213
FEED EX AND DESIGN 75/232,021
RISOTRIENE 75/233,512
FOOD EXTRUSION 75/248/698
AND DESIGN
*Application filed.
