EXHIBIT 10.8
FLAVOR SUPPLY AGREEMENT dated as of December 31, 1996
(this "Agreement"), between QUEST INTERNATIONAL FLAVORS & FOOD
INGREDIENTS COMPANY ("Supplier"), and MBW FOODS INC. (f/k/a MBW
ACQUISITION CORP.), a Delaware corporation ("Customer"). Supplier
and Customer are referred to collectively in this Agreement as "the
Parties".
WHEREAS Conopco, Inc. and Customer have entered into an Asset
Purchase Agreement dated as of December 18, 1996 (the "Purchase Agreement"),
providing for, among other things, the sale by Conopco, Inc. to Customer of the
Transferred Assets (as defined in the Purchase Agreement); and
WHEREAS Section 5.4 of the Purchase Agreement also provides that
Supplier and Customer shall enter into a flavor supply agreement pursuant to
which Supplier shall supply and Customer shall purchase two mixtures (each, a
"Mixture" and together the "Mixtures"), as specified on Schedule A hereto, of
the flavors listed on Schedule B hereto (the "Flavors") solely for use under the
terms and conditions set forth herein; and
WHEREAS Section 5.4 of the Purchase Agreement also provides that
Supplier and Customer and an escrow agent (the "Escrow Agent") shall enter into
an Escrow Agreement (the "Escrow Agreement") pursuant to which the formulations
for the Flavors have been placed in escrow.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and subject to and on the conditions herein set
forth, the Parties agree as follows:
ARTICLE I
Term and Termination
1.1 Term. The term of this Agreement shall be for 12 years from the
date hereof; provided, however, that this Agreement may be terminated by either
party on the first anniversary of the date hereof, provided that such party gave
written notice of the termination to the other party at least 90 days prior to
the date of termination, or after such first anniversary, provided that such
party gave written notice of the termination to the other party at least 135
days prior to the date of termination.
1.2 Termination. Notwithstanding the provisions of Section 1.1, this
Agreement may be terminated prior to the
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expiration of the term, upon prior written notice as set forth below:
(i) by mutual agreement of the Parties;
(ii) by Supplier, if there exists a Customer Material Breach (as
defined in Section 1.6);
(iii) by Customer, if there exists a Supplier Material Breach (as
defined in Section 1.6);
(iv) by Customer, if there exists a Critical Supply Event (as
defined in Section 1.7); or
(v) by a party, in the event of a Force Majeure occurrence affecting
the other party which continues for more than 180 consecutive days.
1.3 Termination Event. A "Termination Event" shall have occurred if
this Agreement is terminated (a) by Customer pursuant to Sections 1.2(iv) or
1.2(v) or (b) by Supplier pursuant to the proviso to Section 1.1.
1.4 Withdrawal Event. A "Withdrawal Event" shall have occurred (a)
if this Agreement is terminated pursuant to Section 1.2(i), (b) if this
Agreement is terminated by Supplier pursuant to Sections 1.2(ii) or 1.2(v), (c)
if there exists a Customer Material Breach in respect of which Supplier could
have terminated this Agreement pursuant to Section 1.2(ii) but Supplier has
waived such breach and continues to supply the Mixture, (d) if this Agreement is
terminated by Customer pursuant to Section 1.2(iii), (e) if Customer delivers
notice of termination pursuant to the proviso to Section 1.1, (f) on the twelfth
anniversary of the date hereof or (g) if a Change of Control shall have
occurred. For purposes of this Agreement, "Change of Control" means any
transaction or series of related transactions resulting in any Competitor (A)
acquiring beneficial ownership (as such term is defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) of (i) so long as Customer has not
consummated an initial public offering of its equity securities, 50% or more and
(ii) thereafter, 20% or more, of the voting interests entitled to vote in the
election of the board of directors (or similar governing body) of Customer or
acquiring the power to appoint a majority of such board or (B) merging with
Customer. As used herein, "Competitor" means any person or entity which is, or
whose Affiliate (as defined in the Purchase Agreement) is, engaged, directly or
indirectly, in the business of marketing, selling, manufacturing, developing or
distributing margarines, butters or other yellow fats or similar spreads (or any
combinations thereof).
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1.5 Effect of Termination. Upon termination of this Agreement, the
undertakings of the Parties set forth herein shall forthwith be and become of no
further force and effect; provided, however, that this Section 1.5, Sections
5.1, Section 8.1 and Article VII and rights and remedies for breaches of this
Agreement prior to its termination shall survive such termination. Upon
termination or expiration of this Agreement, Customer shall purchase from
Supplier at the price provided in Article VI all existing inventory of Mixtures
(in an amount not to exceed the sum of (a) quantities contained in unfilled
purchase orders of Customer and (b) quantities of Mixtures representing
one-quarter of the amounts ordered by Customer during the twelve-month period
immediately preceding the date of notice of such termination and (c) any
additional quantities of Mixtures in excess of those described in clause (b)
above manufactured and stored at the request of Customer prior to such
termination) and related packaging materials.
1.6 Material Breaches. (a) A "Supplier Material Breach" shall occur
if (i) Supplier fails to supply the Mixtures in at least the quantities
contained in purchase orders of Customer that comply with Articles II, III and
IV and such failure is not cured within 30 days of receipt of notice from
Customer to Supplier of such failure or (ii) Supplier breaches its warranty set
forth in Section 9.1(a) or Section 9.1(b) hereof and such breach is not remedied
within 30 days of receipt of notice from Customer to Supplier of such breach by
replacement of the nonconforming Mixture with Mixture that complies with such
warranties or (iii) Supplier breaches its warranty set forth in Section 9.1(c)
hereof and such breach is not remedied within 30 days of receipt of notice from
Customer to Supplier of such breach by replacement of the nonconforming Mixture
with either (A) Mixture that complies with such warranty or (B) supply of the
individual Flavors comprising the applicable Mixture (in which case all
references in this Agreement to such Mixture shall be deemed to be references to
the Flavors unless the context shall otherwise require).
(b) A "Customer Material Breach" shall occur if (i) Customer fails
to pay any invoice delivered pursuant to Section 4.2 within 45 days of the date
of such invoice, provided that Supplier shall have notified Customer of such
non-payment at least 5 days prior to the end of such period (unless the unpaid
amount of such invoice is being contested in good faith by Customer), (ii) in
any calendar year, Customer orders less than $100,000 (such amount to be
increased on the first day of each succeeding calendar year from the amount in
effect on the last day of the preceding calendar year to reflect the average net
price increase or decrease during such preceding calendar year) of Mixtures and
such failure is not cured within 30 days after the end of
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such calendar year or (iii) there is a breach of Section 5.1, Section 7.2 or
Section 8.1.
1.7 Critical Supply Event. (a) A "Critical Supply Event" shall occur
if any of the following shall have occurred and shall have continued without
being cured for 90 consecutive days so long as the notices specified in Section
1.7(b) were timely given by Customer in respect thereof: (i) Supplier fails to
supply the Mixtures in at least the quantities contained in purchase orders of
Customer that comply with Articles II, III and IV and such failure continues
without being cured or (ii) Supplier breaches its warranty set forth in Section
9.1(a) or Section 9.1(b) hereof and such breach continues without being cured by
replacement of the nonconforming Mixture with Mixture that complies with such
warranties or (iii) Supplier breaches its warranty set forth in Section 9.1(c)
hereof and such breach continues without being cured by replacement of the
nonconforming Mixture with either (A) Mixture that complies with such warranty
or (B) supply of the individual Flavors comprising the applicable Mixture (in
which case all references in this Agreement to such Mixture shall be deemed to
be references to the Flavors unless the context shall otherwise require).
(b) If any of the events specified in Section 1.7(a)(i), (ii) or
(iii) shall have occurred, Customer shall give notice of the applicable
occurrence to Supplier and the Escrow Agent under the Escrow Agreement on the
30th, the 60th and the 85th consecutive day of the applicable 90 consecutive day
period.
ARTICLE II
Binding Forecasts; Estimated Forecasts;
Purchase Orders
2.1 Binding Forecasts; Estimated Forecasts. On the date hereof,
Customer shall provide Supplier with an initial written forecast of Customer's
projected demand for each Mixture during the three month period beginning on the
date hereof. Thereafter, no later than the 15th day of each month, Customer
shall supply a written forecast of Customer's projected demand during the
following three months. The initial month's forecast for Mixtures (the "Binding
Forecast") shall set forth the total quantity of each Mixture that Customer
shall order for delivery during such month and shall represent a commitment by
Customer to purchase the quantity of each Mixture indicated thereunder. The last
two months of each such forecast shall be a nonbinding, good faith estimate of
the quantity of each Mixture that Customer
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expects to order for delivery during the second and third months (the "Estimated
Forecasts"). The Estimated Forecasts are for planning purposes only and shall
not be construed as a firm commitment to Supplier. Supplier shall invoice
Customer and Customer shall thereafter pay for any quantity of a Mixture
specified in a Binding Forecast but not ordered by Customer during the month to
which such Binding Forecast relates.
2.2 Purchase Orders. All purchases of Mixtures by Customer hereunder
shall be pursuant to written purchase orders, which shall be delivered at least
20 days prior to the requested delivery date. A purchase order shall specify the
quantity of each Mixture ordered and the requested time and manner of delivery,
all of which shall be subject to the amount of each Mixture specified in the
Binding Forecast and the provisions of Articles III and IV.
2.3 Acceptance of Purchase Orders. Supplier may reject any purchase
order (a) that specifies a quantity that is inconsistent with the provisions of
Article III or (b) that specifies a quantity less than the minimum order amount
set forth on the attached Schedule C or (c) that, when added to the other
quantities of the applicable Mixture delivered or to be delivered during any
month, exceeds the Binding Forecast for such month or (d) that contains a
delivery schedule that is inconsistent with the provisions of Article IV.
2.4 Co-Packers. Supplier and Customer agree that any co-packer
designated by Customer in writing may provide the forecasts and purchase orders
and other instructions required under this Agreement and Supplier shall be
entitled to rely thereon in the same manner as if they had been provided by
Customer.
ARTICLE III
Quantity
3.1 Quantity. Customer shall purchase from Supplier, and Supplier
shall sell to Customer, all Customer's requirements during the term of, and
subject to all the other terms of, this Agreement; provided, however, that
Supplier shall have no obligation to supply any amount of a Mixture in excess of
the amount specified in the Binding Forecast for such month. In addition, no
Binding Forecast shall be in excess of the maximum supply limit or below the
minimum supply limit for such Mixture set forth on the attached Schedule C. If,
during any period, Customer desires to purchase a quantity of a Mixture that
exceeds the maximum supply limits on any Binding Forecast, Customer shall notify
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Supplier in writing, and Supplier may, in its sole discretion, accommodate
Customer, but shall be under no obligation to supply such additional quantity
and shall not be responsible for any losses or damages that may be suffered by
the Customer as a result of such failure to supply the additional Mixture.
ARTICLE IV
Delivery; Invoices; Title
4.1 Delivery. Supplier shall make the Mixtures available for
shipping by Customer's designated carrier, F.O.B., Supplier's facility, on the
date specified in the purchase orders, but, if a purchase order requests
delivery less than 20 days after the receipt by Supplier of the purchase order,
Supplier shall have 20 days after its receipt of the purchase order to deliver
the Mixtures ordered in such purchase order. Supplier shall use commercially
reasonable efforts to manufacture and have ready for shipment orders of Mixtures
by any earlier requested shipment date, so long as such efforts do not interfere
with Supplier's normal operations at Supplier's facilities.
4.2 Invoices; Payment. All orders for Mixtures under this Agreement
shall be invoiced at the time of shipment and any Mixture specified in a Binding
Forecast but not ordered in the related calendar month shall be invoiced on the
business day following such month. All invoices hereunder shall be due and
payable net thirty days from the invoice date. Any amount not paid when due
shall accrue interest at the rate of one and one-half percent (1-1/2%) per month
until paid in full. Notwithstanding anything herein to the contrary, if on three
or more occasions Customer's invoices have become past due, Supplier may, on
notice to Customer, require cash on delivery or security satisfactory to
Supplier as a condition of delivery.
4.3 Title. Title to, and risk of loss regarding, a Mixture shall be
in and pass to Customer upon Supplier's delivery of such Mixture to the carrier,
pursuant to Section 4.1.
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ARTICLE V
Exclusive Use; No Development
5.1 Use. Customer shall not use the Mixtures or the Flavors in
margarines, butters or other yellow fats or similar spreads (or any combinations
thereof). Except as otherwise provided in Section 2.01(b) of the Escrow
Agreement if then applicable, Customer shall not provide, assign, sell, license
or otherwise transfer to any third party the Mixtures or the Flavors; provided,
that Customer may provide the Mixtures to a third party co-packer for the
purpose of manufacturing end products incorporating the Mixtures so long as (A)
such co-packer is not a Competitor and (B) such co-packer agrees in writing to
be bound by the provisions of Section 5.1, Article VII and Section 8.1
(including agreeing that Supplier and Unilever N.V. shall be third party
beneficiaries of such agreement), it being agreed that Customer shall be
responsible for any breaches of such provisions by such co-packer and any such
breach shall be deemed to be a breach by Customer. For avoidance of doubt, the
foregoing restriction shall not prevent Customer from selling end products which
incorporate the Mixtures or the Flavors. This Section shall survive the
termination or expiration of this Agreement, or the rendering of services or
sale of Mixtures or Flavors pursuant to this Agreement.
5.2 No Development. For avoidance of doubt, Customer acknowledges
and agrees that Supplier shall not have any obligation to undertake research and
development activities for Seller in respect of the Mixtures or the Flavors.
ARTICLE VI
Pricing
6.1 Base Price. The initial price for each Mixture (the "Base
Price") will be in proportion to the prices for the component Flavors comprising
such Mixture set forth on Schedule D hereto. Supplier represents and warrants to
Customer that:
(a) The respective prices set forth on Schedule D hereto are the
prices at which Supplier provided the respective Flavors to Seller (as
defined in the Purchase Agreement) immediately prior to the Closing Date
(as defined in the Purchase Agreement); and
(b) During the 11-month period ending November 30, 1996, Seller's
aggregate purchases of the Flavors comprising the Mixtures were $350,927.
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6.2 Adjustment of Base Price. (a) The Base Price for each Mixture is
subject to upward or downward adjustment at the end of each three-month period
during the term of this Agreement, to reflect increases or decreases, if any, in
Supplier's direct expenses incurred in manufacturing and supplying Customer with
such Mixture pursuant to this Agreement, on a per unit of Mixture sold basis
("Direct Expenses").
(b) At least 30 days prior to the end of the first three-month
period of the term of this Agreement, or at least 30 days prior to the
expiration of each successive three-month period, as the case may be, Supplier
may notify Customer of an increase or decrease in Direct Expenses if during the
current three-month period the Direct Expenses increased or decreased from the
Direct Expenses for the previous three-month period. Effective at the
commencement of the next three-month period following such notice, the price at
that time (as previously adjusted pursuant to this Section) would be adjusted by
an amount that is equal to the increase or decrease in Supplier's Direct
Expenses for such Mixture. With such notice, Supplier will provide Customer with
an officer's certificate certifying that any such price adjustment reflects only
the increase or decrease in Supplier's Direct Expenses as provided in the
immediately preceding sentence. Supplier will keep accurate records and books of
account on all Direct Expenses and related information required for the orderly
administration of the price adjustment provisions set forth in this Section.
ARTICLE VII
Confidentiality
7.1 Definitions. "Confidential Information" as used herein shall
mean all proprietary and other information not available to the general public
and disclosed by Supplier or its representatives to Customer or its officers,
employees, directors, shareholders, affiliates, subsidiaries, parents,
contractors, agents or other representatives (collectively, "Representatives"),
in connection with selling the Mixtures and the Flavors to Customer pursuant to
this Agreement, whether orally or in writing, or obtained by inspection of the
facilities, documents or other material of the other party. Customer
acknowledges that the composition and formulation of, and recipes for, the
Mixtures and the Flavors are proprietary information of Supplier and Unilever
N.V. and are deemed to be Confidential Information.
7.2 Confidentiality. (a) Except as otherwise provided in Section
2.01(b) of the Escrow Agreement if then applicable and in Section 7.2(h) herein,
Customer shall hold
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Confidential Information in strict confidence and shall not disclose
Confidential Information to any third party without the prior written consent of
Supplier.
(b) Customer shall be bound by the obligations to maintain
Confidential Information as confidential, and agrees to cooperate with Supplier
in enforcing said obligation in the event of breach by Customer or its
Representatives.
(c) Customer agrees not to use Confidential Information in any way
for its own benefit or for the benefit of others.
(d) Customer agrees not to use Confidential Information directly or
indirectly against Supplier in the future.
(e) Customer agrees not to disclose anything about this Agreement,
or the nature of the services performed thereunder, or the existence of any
business partnership to any third party without the prior written consent of
Supplier, except as required by applicable law or as otherwise required to
perform this Agreement.
(f) Customer agrees to indemnify and hold Supplier harmless on
account of any loss, injury, damage, or claim that may result from breach of
this Section 7.2. Further, Customer agrees that damages alone would be
inadequate to compensate Supplier for a breach of the covenants of this Section
7.2, and in the event of such breach, the Supplier may obtain equitable relief,
including without limitation an injunction, from a court of competent
jurisdiction.
(g) The obligations of Customer under this Section 7.2 shall survive
the termination or expiration of this Agreement or the discontinuance of
services or the providing of Flavors pursuant to this agreement. This Section is
binding on the Representatives, successors and assigns of Customer.
(h) Confidential Information obtained by Customer shall be disclosed
to its Representatives only on a "need to know" basis and Customer shall be
responsible for any breaches of this Agreement by Customer's Representatives.
Nothing contained herein shall prevent Customer from disclosing to third parties
or using in any manner information which Customer can in good faith show:
(i) Has been published and has become part of the public domain
other than by the acts, omissions or fault of Customer or its Representatives;
or
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(ii) Has been furnished or made known to the Customer by third
parties (other than those acting on behalf of Supplier) who have provided
such information as a matter of legal right without restrictions on its
disclosure; or
(iii) Was in Customer's possession (as shown by tangible evidence)
prior to the date of this Agreement and disclosure thereof by Supplier to
Customer; or
(iv) Was compelled to be disclosed by lawful order or subpoena, but
only after prior notice to Supplier and Supplier has had a reasonable
opportunity to take appropriate action to protect such information from
disclosure.
ARTICLE VIII
Covenant Not to Reverse Engineer or Analyze
8.1 Non-analysis. Customer agrees that neither it nor any of its
Representatives, successors or assigns, or any third party acting on Customer's
behalf, directly or indirectly, will make any attempt to reverse engineer,
analyze or discover the composition, recipe or formulation of either Mixture or
the Flavors; provided, that Customer may engage in testing solely (i) for
purposes of quality control or (ii) as required by applicable law. Customer
agrees that it shall be responsible for any breach of this Section by its
Representatives.
ARTICLE IX
Warranties
9.1 Warranties. (a) Supplier warrants that all Mixtures sold
pursuant to this Agreement shall meet, in all material respects, the applicable
specifications therefor existing immediately prior to the Closing Date.
(b) Supplier warrants that all Mixtures sold pursuant to this
Agreement shall comply with all applicable laws and regulations, including but
not limited to the regulations of the United States Food and Drug
Administration.
(c) Supplier warrants that supplying the Flavors in the Mixtures as
opposed to individually will not adversely affect the integrity or taste of Xxx.
Xxxxxxxxxxx'x syrups as
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compared to their taste as manufactured by Seller immediately prior to the date
hereof.
(d) (i) Supplier warrants that at the time of shipment by Supplier
the Mixtures shall be fit for the ordinary purposes for which such Mixtures are
used. NO OTHER REPRESENTATION OR WARRANTY SHALL BE BINDING UPON SUPPLIER.
SUPPLIER MAKES NO OTHER WARRANTIES TO CUSTOMER OR ANY OTHER PERSONS OR PARTIES,
WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND IN PARTICULAR, BUT NOT BY
WAY OF LIMITATION, SUPPLIER MAKES NO WARRANTY OF MERCHANTABILITY AND NO WARRANTY
OF FITNESS FOR A PARTICULAR PURPOSE.
(ii) Customer assumes all risk and liability with respect to
Customer's manufacturing process and the use of the Mixtures in
combination with any other ingredients or products.
(iii) The liability of Supplier for any breach of this Agreement
shall not exceed the purchase price of the applicable Mixture and shall be
limited to the repayment of the purchase price for the particular Mixture
in question. In no event shall Supplier be liable to Customer or to any
other person or party for any incidental or consequential damages of any
nature arising out of or because of this Agreement, the use of the
Mixtures or the nonconformity of the Mixtures. If notice of any claims by
Customer with respect to any Mixture is not given to Supplier within 21
days of the delivery date of such Mixture (provided Customer must properly
store the Mixtures), such claims shall be waived and extinguished.
ARTICLE X
General Provisions
10.1 Notices. Any notice or other communication hereunder shall be
in writing and shall be (i) delivered personally; (ii) sent by documented
overnight delivery service; (iii) sent by facsimile transmission, provided that
a confirmation copy thereof is sent no later than the business day following the
day of such transmission by documented overnight delivery service or first class
mail, postage prepaid (certified or registered mail, return receipt requested);
or (iv) sent by first class mail, postage prepaid (certified or registered mail,
return receipt requested). Such notice shall be deemed to have been duly given
(i) on the date of delivery, if delivered personally; (ii) on the business day
after dispatch by documented overnight delivery service, if sent in such manner;
(iii) on the date of facsimile transmission, if so transmitted; or (iv) on the
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fifth business day after sent by first-class mail, postage prepaid, if sent in
such manner. Notices or other communications shall be directed to the following
addresses:
If to Supplier:
Quest International Flavors &
Food Ingredients Company
0000 Xxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attn: Business Unit Manager ABC&T
with a copy to:
Unilever United States, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attn: General Counsel
If to Customer:
MBW Foods Inc.
c/o Dartford Partnership L.L.C.
000 Xxxxxxxxxx Xxxxxx; Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attn: Xxx Xxxxx
Either party may, by notice given in accordance with this Section 10.1,
specify a new address for notices under this Agreement.
10.2 Headings. The descriptive headings of the several Articles and
Sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement and shall not affect the interpretation
hereof.
10.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
reference to its principles of conflict of laws.
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10.4 Assignment. Neither party may assign its rights and obligations
under this Agreement to any third party without the prior written consent of the
other party; provided, however, that (i) Supplier may assign its rights and
obligations hereunder (A) to any affiliate of Supplier that is capable of
performing Supplier's obligations hereunder or (B) to any purchaser of
Supplier's business or facility, and (ii) Customer may assign its rights and
obligations hereunder, in whole but not in part, (A) to any purchaser of all or
substantially all of Customer's Xxx. Xxxxxxxxxxx'x syrup business, (B) to any of
Customer's affiliates so long as that in such event Customer shall remain fully
liable for the fulfillment of all such obligations and (C) as security to its
lenders in respect of the Financing (as defined in the Purchase Agreement) (or
as collateral security in connection with any other financing so long as the
proceeds thereof are used for businesses of or acquisitions by Customer, its
successors or its subsidiaries) if so requested, provided, however, that in the
event of any such assignment of this Agreement, Customer shall notify Supplier
of such assignment within two business days thereof.
10.5 No Third Party Beneficiaries. Except for the provisions of
Section 5.1, Article VII and Section 8.1, which are also intended to benefit
Unilever N.V., this Agreement shall be binding upon and inure solely to the
benefit of the parties and their successors and permitted assigns and nothing
herein, express or implied, is intended to or shall confer upon any other person
any legal or equitable right, benefit or remedy of any nature whatsoever under
or by reason of this Agreement.
10.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.7 Severability. In the event that any one or more of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement or any other jurisdiction, but this Agreement shall be
reformed and construed in any such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein and such provision shall
be reformed so that it would be valid, legal and enforceable to the maximum
extent permitted in such jurisdiction.
10.8 Independent Status. Supplier is an independent contractor
engaged by Customer for the provision of the Mixtures. Nothing in this Agreement
shall constitute Supplier as an employee, agent or general representative of
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Customer. This Agreement shall not constitute either party as the legal
representative or agent of the other nor shall either party have the right or
authority to assume, create or incur any liability or any obligation of any
kind, express or implied, against, or in the name of or on behalf of, the other
party.
10.9 Force Majeure. Except for the payment of money, neither party
shall be in default hereunder by reason of any failure or delay in the
performance of its obligations hereunder where such failure or delay is due to
circumstances or causes beyond such party's reasonable control, such as acts of
God, labor disputes, strikes, war, threat of war, riot, intervention by
governmental authorities, embargoes, priorities repealed or required by civil
authorities, floods, fire, accident, delays in transportation or other
occurrences of a similar nature. Any party affected by a "Force Majeure"
occurrence shall provide written notice thereof to the other and shall indicate
the projected length of such Force Majeure occurrence.
10.10 Jurisdiction; Service of Process. Supplier and Customer
irrevocably consent and agree that any legal action, suit or proceeding against
either of them with respect to their obligations or liabilities under or arising
out of or in connection with this Agreement may be brought in the United States
District Court for the Southern District of New York or in the courts of the
State of New York sitting in New York County and each hereby irrevocably accepts
and submits to the exclusive jurisdiction of each of the aforesaid courts in
personam, with respect to any such action, suit or proceeding. Supplier and
Customer irrevocably consent and agree that the service of any and all legal
process, summons, notices and documents which may be served in any such action,
suit or proceeding arising hereunder may be made by mailing a copy thereof by
certified or registered mail, postage prepaid, return receipt requested, to the
party to be served at the address set forth in Section 11.1 hereof, with such
service to be effective upon receipt.
10.11 Amendment; Waivers. This Agreement may be amended only in a
writing signed by both parties hereto. Any
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provision of this Agreement may be waived only in a writing signed by the party
to be bound by such waiver. No course of dealing between the parties shall be
effective to amend or waive any provision of this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their respective duly authorized officers as of the day and year
first above written.
MBW FOODS INC.
by
/s/ Xxx Xxxxx
----------------------------
Name: Xxx Xxxxx
Title: Executive Vice
President
QUEST INTERNATIONAL FLAVORS &
FOOD INGREDIENTS COMPANY,
by
/s/ Xxxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxxx Xxxxxx
Title: Chief Financial
Officer
SCHEDULE A
Flavor mixtures to be sold for Xxx. Xxxxxxxxxxx:
Flavor mixture and specifications yet to be finalized (currently working on
producing two mixtures containing the components of the three flavors listed on
Schedule B).
SCHEDULE B
Individual flavors currently sold for Xxx. Xxxxxxxxxxx:
Product Name Product Number
------------ --------------
Maple N&A DY08551
BBC Dairy 11951
Xxxxx X-X NN18676
SCHEDULE C
1. The minimum monthly supply limit for the mixtures shall be in
accordance with Quest's standard pack size for such mixture.
In no event shall any individual shipment of the specified mixture be
less than the standard pack size for such mixture.
2. The maximum aggregate monthly supply limit for the mixtures shall be
5,000 kilos.
SCHEDULE D
Prices
BBC Dairy.............................................$23.00 per kilogram
Bozan.................................................$20.50 per kilogram
Maple.........................................................$4.15/pound
