Exhibit 10.48
PRODUCTION AGREEMENT
This Production Agreement (the "Agreement") is made as of the 4th day of
June, 1998, by and between Aurora Foods Inc., a Delaware corporation ("Buyer"),
and Xxxxxxx-Xxxx Xxx Corporation, a Missouri corporation ("Producer").
WITNESSETH
WHEREAS, Buyer possesses formulas and processes for the manufacture of
certain food products described in Schedule A hereto (the "Products");
WHEREAS, Producer is engaged in the business of manufacturing and mixing
food products, including food products similar to the Products;
WHEREAS, Producer has facilities and expertise for the production of
the Products; and
WHEREAS, Buyer and Producer desire to define and develop a business
relationship whereby Producer will manufacture and sell, and Buyer will
purchase, the Products subject to the terms and conditions set forth herein.
NOW THEREFORE, for mutual and adequate consideration, Producer and Buyer
agree as follows:
1. TERM. This Agreement is effective immediately, but Buyer and Producer
acknowledge that production of the Products shall not commence
immediately. For purposes of calculating the Original Term (as hereinafter
defined) of this Agreement, this Agreement shall be deemed to commence as
of the first day any of the Products are delivered to the Buyer (the
"Commencement Date") and, unless earlier terminated in accordance with
Section 21 hereof, the Agreement shall end on the fifth anniversary of the
Commencement Date (the "Original Term"). The Buyer shall have the option
to extend this Agreement on the same terms and conditions set forth herein
for an additional two year period (the "Option Term") by giving written
notice to the Producer of Buyer's exercise of the option not later than
one-hundred eighty (180 ) days prior to the expiration of the Original
Term. In addition, the Agreement shall be subject to automatic renewal for
additional consecutive one year terms (the "Renewal Term or Terms") unless
a decision is made by either party not to renew. Any decision not to renew
shall be submitted in writing by the party making such decision no later
than one-hundred eighty (180) days prior to the expiration of the
Original Term, the Option Term or any Renewal Term. If the Producer shall
give notice to Buyer of its decision not to renew no later than
one-hundred eighty (180 ) days prior to the
expiration of the Original Term and the Buyer shall give notice to the
Producer of Buyer's exercise of the option not later than one-hundred
eighty (180) days prior to the expiration of the Original Term, the
Buyer's notification shall control, regardless of whether that notice is
given before or after receipt of the Producer's notice. The "Agreement
Term" shall mean (i) the Original Term, (ii) if the Buyer exercises the
option, the Option Term and (iii) if this Agreement is renewed, the
Renewal Term or Terms.
2. PRODUCTION FACILITIES. The Products will be manufactured at Producer's
facilities located at Centralia, Illinois (the "Centralia Plant"), and any
other plant location of Producer as is approved in advance by Buyer, which
approval shall not be unreasonably withheld (each, an "Approved
Facility"). As soon as is reasonably practicable, Producer agrees that it
shall, at its sole cost and expense, add not less than an additional 8,000
square feet of warehouse space to the Centralia Plant.
3. PRODUCERS; PRODUCTION.
Subject to the terms and conditions of this Agreement, Producer agrees to
manufacture and sell to Buyer, and Buyer agrees to purchase from the
Producer, the Products as set forth on Schedule A in such quantities and
at such Approved Facilities as shall be determined from time to time in
the sole judgment of Buyer. Such quantities shall not exceed the capacity
of the Manufacturing Equipment (as hereinafter defined), unless, after
servicing Producer's existing business, additional capacity, using
Producer's then existing equipment, is available at another of Producer's
facilities.
4. MANUFACTURING STANDARDS. Producer agrees to manufacture each of the
Products in accordance with Buyer's specifications, quality control
standards and other procedures that are contained in the Operating Manual
that has been delivered to Producer and that shall be deemed to be a part
hereof as Schedule B (the "Specifications"). Between the date hereof and
the date of the first production of the Products by Producer, Producer and
Buyer agree to in good faith discuss reasonable changes to the existing
quality control standards and operating procedures relating to the
production of the Products. Buyer agrees to in good faith consider and, if
deemed acceptable by Buyer, implement such quality control and operating
procedure changes as may be proposed by Producer. Buyer may modify the
Specifications from time to time on the sole judgment of Buyer upon thirty
days prior written notice to the Producer; provided, however, in the event
any such modifications to the Specifications result in any change in the
cost to produce the Products, the price for the Products shall be adjusted
upward or downward, as the case may be, to cover the change in the cost to
produce the Products. Upon written notification from Buyer to the Producer
modifying the Specifications, Schedule B shall be deemed amended by such
modification. Buyer agrees to promptly supply Producer with all formulas,
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operating techniques, manufacturing procedures and other technical
information necessary and appropriate for the manufacture of the Products;
provided, however, that Producer understands that Buyer is relying upon
Producer's expertise in suggesting to Buyer and implementing the
appropriate procedures for the manufacture of the Products.
5. GRANT OF LICENSE. Subject to the terms and conditions of this Agreement,
Buyer hereby grants to Producer, who accepts the same, a non-exclusive,
nonassignable, indivisible and royalty-free right and license to
manufacture and sell the Products to Buyer exclusively. The license
includes the right to use the Specifications and any other technical
know-how, formulas, manufacturing processes, and other technical and
confidential information useful or necessary for the manufacture of the
Products. This license will remain in effect until the expiration or other
termination of this Agreement and may not be assigned, transferred
(including any transfer by operation of law), subcontracted or sublicensed
to any third party (other than, in the case of a sublicense or
subcontract, to a wholly-owned subsidiary of the Producer) without the
prior written consent of Buyer, which consent may be withheld in the sole
discretion of Buyer. In the event Producer enters into any sublicense or
subcontract with a wholly-owned subsidiary of Producer, Producer shall be
responsible for all acts and omissions of its wholly-owned subsidiary.
6. CONFIDENTIAL INFORMATION.
a. For the purpose of this Agreement, "Confidential Information" shall
mean all written information related to the Products and all
formulas, manufacturing processes, data, know-how, technical and
non-technical materials, and product samples and specifications
(including the Specifications) which Buyer has disclosed to Producer
prior to this Agreement or which Buyer may disclose to Producer
pursuant to or in connection with this Agreement, and all pricing
information with respect to the Products, all written financial
information, manufacturing processes, data, know-how, technical and
non-technical materials which Producer has disclosed to Buyer prior
to this Agreement or which Producer may disclose to Buyer pursuant
to or in connection with this Agreement.
b. Notwithstanding the foregoing, Confidential Information shall not
include any information which the non-disclosing party can
demonstrate by reasonable evidence: (i) is or becomes public
knowledge through no fault or omission of the non-disclosing party;
(ii) is lawfully obtained by the non-disclosing party from a third
party under no obligation of confidentiality concerning such
information; (iii) was, at the time of receipt, otherwise known to
the non-disclosing party without restrictions as to use or
disclosure; or (iv) is developed independently by the non-disclosing
party and without reliance upon the Confidential Information
disclosed
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hereunder. The burden of proving any such exceptions to the
definition of Confidential Information will reside with the
non-disclosing party.
c. The non-disclosing party agrees to hold all Confidential Information
of the disclosing party in confidence and not to disclose any
Confidential Information to any third party except (i) those with a
need to know in order to assist in the manufacture of the Products,
(ii) as may be required by law; or (iii) to accountants, attorneys,
bankers and other professional advisors of a party. The
non-disclosing party agrees not to make any use of the Confidential
Information except as provided herein.
d. The non-disclosing party agrees that its directors, officers,
employees, agents and other representatives who have access to the
Confidential Information of the disclosing party will be made aware
of the obligations of confidentiality and non-use set forth in
Section 6 of this Agreement and will be bound to abide by these
obligations. The non-disclosing party agrees that it shall be
responsible for any breach of the obligations of confidentiality or
non-use by any person to whom such information is disclosed by the
non-disclosing party.
e. The Confidential Information of the disclosing party shall remain
the exclusive property of the disclosing party, and the
non-disclosing party acquires no interest in or rights thereto under
this Agreement or otherwise. Upon termination of this Agreement, or
at any time upon the disclosing party's request, the non-disclosing
party shall, at its sole option, either promptly return all tangible
forms of Confidential Information of the disclosing party (including
copies) to the disclosing party then in the nondisclosing party's
possession or under its control or destroy such Confidential
Information and deliver a certificate to the disclosing party
certifying such destruction. Upon termination of this Agreement, to
the extent that any document prepared by or on behalf of the
non-disclosing party incorporates any Confidential Information of
the disclosing party, the non-disclosing party shall destroy such
documentation and deliver a certificate to the disclosing party
certifying such destruction.
f. The non-disclosing party shall be liable to the disclosing party for
all loss, liability, claim, damage, cost and expense (including,
without limitation, reasonable attorneys fees) incurred as a result
of the breach of the confidentiality and/or non-use provisions of
Section 6 of this Agreement by the non-disclosing party. The
non-disclosing party also acknowledges and agrees that, in the event
of such a breach, money damages may not be an adequate remedy and
that the disclosing party shall be entitled to specific performance
and injunctive or other equitable relief as a remedy for any such
breach.
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g. The non-disclosing party acknowledges that the Confidential
Information disclosed or to be disclosed by the disclosing party
represents the disclosing party's valuable property, which is
intended to be maintained in perpetuity as trade secret property.
Accordingly, the confidentiality and non-use obligations of Section
6 of this Agreement shall be continuing in nature and shall survive
termination of this Agreement.
7. SALE AND PURCHASE OF PRODUCTS.
a. The terms and conditions contained in this Agreement shall be
effective for all Products sold by the Producer to the Buyer during
the Agreement Term. During the Agreement Term, Producer agrees to
manufacture and sell the Products to Buyer against the Monthly
Production Request (as such term is hereinafter defined in Section
10 of this Agreement) of the Buyer, which request shall be deemed to
be a production purchase order. During the Agreement Term, Producer
agrees to deliver the Products manufactured and sold to Buyer
against shipping orders of Buyer. Except as otherwise set forth in
this Agreement, each contract for the purchase and sale of the
Products shall be initiated hereunder by Buyer's issuance to
Producer of a production purchase order and delivery of such
Products shall be initiated against shipping orders of the Buyer.
Unless Buyer otherwise agrees in writing, ALL PRODUCTION PURCHASE
ORDERS AND SHIPPING ORDERS ARE EXPRESSLY LIMITED TO THE TERMS HEREOF
AND ANY ADDITIONAL OR DIFFERENT TERMS ARE OBJECTED TO WITHOUT
FURTHER NOTIFICATION BY PRODUCER AND BUYER. Shipping orders shall be
issued to the Producer at least ten (10) business days prior to the
requested shipping date. If the quantity of the particular Product
requested in such shipping order for delivery in a calendar month,
when added together with all other shipping orders for such
particular Product for delivery in the same calendar month, is not
in excess of the quantity for such Product as set forth in the then
current Monthly Production Request, such shipping order for such
Product shall be deemed accepted without any further act of the
Producer. If the quantity of the particular Product requested in
such shipping order for delivery in a calendar month, when added
together with all other shipping orders for such particular Product
for delivery in the same calendar month, is in excess of the
quantity for such Product as set forth in the then current Monthly
Production Request, such shipping order shall be deemed accepted to
the extent that such quantities are not in excess of the then
current Monthly Production Request for such Product and, with
respect to the remaining quantities, shall be accepted or rejected
by Producer in writing within five (5) business days of the issuance
of the shipping order to the Producer. If the Producer shall not
have otherwise notified the Buyer within five (5) business days of
the issuance of such shipping order, the order shall be deemed
accepted in full by Producer and, to the extent
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the quantities are in excess of the then current Monthly Production
Request for such Product, shall be deemed to be a production
purchase order with respect to such excess quantities. Producer
shall use its best efforts to deliver all quantities of Products
ordered by Buyer pursuant to any shipping order. This Agreement and
all orders issued pursuant hereto shall be deemed a series of
installments and shall be deemed to constitute a single contract
between Producer and Buyer. The parties recognize that the demands
and convenience of business operations may make it necessary or
desirable for Buyer to transmit, and Producer to accept, production
purchase orders and shipping purchase orders by telecopier or by
electronic data interchange (in each case with reasonable
confirmation procedures in place).
b. Time and quantity shall be of the essence in any shipping order.
Unless otherwise specified, delivery times specified are the times
of delivery of the Products at an Approved Facility as designated by
Buyer. Producer shall inform Buyer immediately of any occurrence
which will or is expected to result in any delivery at any time or
in any quantity not specified in any shipping order and also of
corrective measures which Producer has taken or will take, to
minimize the effect of such occurrence. Buyer, in addition to all
other remedies available to it in law or in equity, shall have the
right to cancel any shipping order or part thereof if delivery is
not made within the time specified or in the quantities ordered.
c. Subject to the provisions of Section 3 relating to capacity
limitations, if for any reason other than a Force Majeure Event (as
hereinafter defined), Producer is unable to produce from an Approved
Facility the amount of the Monthly Production Request for any
particular line of Product that the Monthly Production Request
contemplates being produced from such Approved Facility, Producer
shall produce the amount at another Approved Facility of the
Producer, including, if approved by the Buyer (which approval shall
not be unreasonably withheld) facilities of the Producer that are
not currently Approved Facilities (each, a "Substitute Facility").
The price charged to the Buyer for the Product produced at the
Substitute Facility shall be the unit price for producing such
Product at the Approved Facility. In addition, in the event Producer
is required to produce Products at a Substitute Facility, Producer
shall reimburse Buyer for ah incidental damages (e.g., additional
shipping charges) incurred by Buyer as a result of the Products
being produced at a Substitute Facility.
8. PRICES, PAYMENT TERMS AND DELIVERY.
a. The initial unit purchase prices of the Products shall be as
specified in the pricing schedule attached hereto as Schedule C.
During the Agreement Term, the unit purchase prices for the Products
shall be subject to change
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(both upward and downward) based upon market fluctuations in the
cost of the components that form the line items as set forth in
Schedule C. No change in the purchase price of the Products shall be
made except upon reasonable prior written notice from the Producer
to the Buyer. Any change that is justified as a result of a change
in the cost of components that form the line items as set forth in
Schedule C shall be made not more frequently than once a quarter and
shall be made at the beginning of the next calendar quarter.
Producer and Buyer agree that there shall be no change in the unit
purchase prices of the Products unless the change from the existing
contractual unit purchase price is equal to or greater than ten
cents per case of Products. Notwithstanding the foregoing, Producer
and Buyer agree to recognize changes of less than ten cents per case
of Products through credits or debits, as the case may be, to the
purchase price for the Products on invoices contemplated by Section
8 (f) of this Agreement. Producer further agrees that, if Producer
believes a change in the Factory Fixed cost component of the
purchase price for the Products is warranted, Producer shall notify
Buyer in writing of such requested change and identify with
reasonable specificity the basis for the price change of the
Products not less than thirty, nor more than sixty, days prior to an
anniversary date of the execution of this Agreement. Producer
further agrees that the Factory Fixed cost component shall not be
requested to be changed more than one time a year and further agrees
that there shall be no change in the Factory Fixed cost component
through June 4, 2000. Prior to implementing any change in the
Factory Fixed cost component, Buyer and Producer shall mutually
agree on such change; provided, however, that in the event Buyer and
Producer do not mutually agree on such change, the parties
nevertheless intend to be bound by this Agreement, and any such
change in the Factory Fixed cost component shall be reasonable (as
construed in accordance with Section 1302.18(A) of the Ohio Revised
Code). Any change in the Factory Fixed cost component shall be
effective as of the applicable anniversary date of the execution of
this Agreement. In the event of any price change (including those
changes of less than ten cents per case of Products that are merely
recognized through credit or debits on invoices), upon request of
Buyer, Producer shall promptly identify with reasonable specificity
the basis for the price change of the Products. Upon request of
Buyer, Producer shall promptly supply Buyer with copies of
documentation supporting such price change and the methodology used
by Producer to determine the price change. The parties intend for
the price of the Products to be the Producer's cost of manufacturing
the Products plus a tolling fee that is included within the line
item "Factory Fixed" as set forth in Schedule C.
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b. In all cases under this Agreement, Producer shall use its best
efforts to obtain the lowest and best prices and/or rates for all
raw materials and packaging materials used in the production of the
Products.
c. In the event of a price change to the Products, Buyer may suggest to
the Producer for its consideration reasonably acceptable alternate
sources in order to lessen a price increase or enhance a price
decrease.
d. Except as specifically provided elsewhere in this Agreement,
Producer warrants that the unit purchase prices for the Products as
determined in accordance with this Section 8 shall be complete, and
no additional charges of any kind shall be added without Buyer's
express written consent.
e. Delivery of the Products set forth in or with reference to each
shipping order shall be F.O.B. Buyer's carrier at the loading dock
of an Approved Facility or any Substitute Facility of the Producer.
f. Producer shall submit an invoice to the Buyer on a daily basis for
the Products shipped by the Producer during the preceding business
day. Terms of payment for each invoice will be net ten (10) days
from the date of invoice. Buyer will however batch pay invoices
twice a week causing some minor early and late variances. The
invoice will reference item code and Product name, number of cases,
unit price per case, the Approved Facility or the Substitute
Facility, as the case may be, and amount due. Producer shall notify
Buyer of any extension of time within which it is permitted to pay
its material vendors for raw materials. In the event of any such
extension, Producer and Buyer agree to extend the time within which
Buyer is required to pay the invoices to Producer.
g. Invoices for payment shall be sent to:
Aurora Foods Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Payments shall be sent to:
Xxxxxxx Xxxx Xxx Corporation
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
h. Producer warrants and covenants that all units of the Product
delivered to Buyer shall be free from any security interest, lien or
other encumbrance of any person, corporation, partnership,
governmental body or other entity.
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9. RAW MATERIALS AND PACKAGING MATERIALS.
a. Unless otherwise set forth herein, Producer shall be responsible for
ordering and paying for all raw materials, packaging materials and
supplies to be utilized in producing the Products (including
ordering of the labels and miscellaneous packaging, if any).
b. Producer shall use its best efforts to maintain an adequate
inventory of raw materials, packaging materials and supplies
necessary to meet production requirements at each Approved Facility.
c. Packaging materials and other items of inventory that are tailored
for the Products will be used by the Producer only for the Products.
Producer shall not maintain excessive levels of such inventory at
any Approved Facility. Upon request, the Buyer shall be provided
with access to all records concerning such inventory at each
Approved Facility.
d. Annually, Producer shall discuss with Buyer strategic issues
concerning purchasing of raw materials and packaging materials for
the Products. Quarterly, Producer and Buyer shall review purchasing
performance and opportunities.
10. PRODUCTION SCHEDULE.
a. Buyer will provide Producer, on or about the fifteenth day of each
month during the Agreement Term, with a rolling three month
production forecast (the "Forecasted Quantities of Products") for
the next three calendar months. The purpose of the Forecasted
Quantities of Products is merely to provide the Producer with
Buyer's good faith estimate of production needs in order to allow
Producer to plan for ordering raw materials, packaging materials and
supplies (including labels and miscellaneous packaging, if any) and
to plan for Product production.
b. On or before the fifteenth day of each month during the Agreement
Term Buyer will provide Producer with a written production request
for the delivery of Products during the next calendar month (the
"Monthly Production Request"), which (i) until such time as each of
the Approved Facilities are producing the Products, such Monthly
Production Request shall not for any particular calendar month
exceed such number of cases of Products as Producer shall in good
faith advise Buyer that it is capable of producing based on its
capacity limitations and (ii) after such time as each of the
Approved Facilities are producing the Products, such Monthly
Production Request shall not for any particular calendar month
exceed the
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production capacity of the Manufacturing Equipment. Producer shall
be obligated to deliver to Buyer the quantities of the Products set
forth in each Monthly Production Request. By the last day of each
calendar month, Buyer shall be obligated to purchase and take
delivery of the Products in quantities that are not less than the
quantities as are set forth in the Monthly Production Request for
such calendar month. Producer shall in good faith schedule the
timing and volume of the production of the Products over the course
of each month (with the intention being that Buyer shall not receive
invoices for the production of Products substantially in advance of
the shipping orders for the Products), and Buyer shall in good faith
place shipping orders over the course of each month in a manner
generally consistent with its past practices in an orderly fashion
so that the shipping orders will exhaust the Monthly Production
Request (with the intention being that Producer shall not have
unreasonable day to day increases in the level of inventory of the
finished Products during a month).
11. INVENTORY OF FINISHED PRODUCTS AND INVENTORY OF RAW MATERIALS AND
PACKAGING MATERIALS.
a. With respect to each Approved Facility, Producer agrees to maintain
at all times during the Agreement Term, either on the floor at such
Approved Facility or in outside warehousing facilities maintained by
the Producer, an inventory of finished Products in quantities equal
to at least five (5) days of the average quantities of such Products
sold to Buyer during the preceding sixty (60) days.
b. With respect to each Approved Facility, Producer agrees, where
possible, to maintain at all times during the Agreement Term at each
Approved Facility an inventory of raw materials, packaging materials
and supplies utilized in producing the Products in quantities equal
to produce at least five (5) days of the average quantities of such
Products sold to Buyer during the preceding sixty (60) days. Buyer
recognizes that, for some bulk raw materials and corrugated shipping
cases, it will be impossible to maintain a five (5) day inventory.
12. SHIPMENT AND PALLET REQUIREMENTS.
a. Unless otherwise mutually agreed in writing, the Products will be
shipped in pallet quantities on Chep pallets. Chep pallet charges
will be the responsibility of Buyer.
b. In lieu of a pallet exchange arrangement, Producer shall shrink wrap
all pallets containing any of the Products at Producer's sole cost
and expense. Buyer shall not be charged or otherwise be responsible
for the
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cost or expense associated with shrink wrapping the pallets
containing the Products.
c. Buyer and Producer agree to equally share the actual additional
labor costs of building store-ready pallet display modules upon the
request of, and in the manner requested by, Buyer.
d. Shipment of Products shall be coordinated by Producer. Title and
risk of loss for the Products shall pass to Buyer at the time of
delivery of possession of the Products to the carrier by Producer.
Carriers shall be obtained and contracted by Buyer.
e. Buyer shall be responsible for transportation costs for the Products
from an Approved Facility or outside warehousing facilities
maintained by the Producer to the warehouse or other destination
designated by Buyer.
13. MANUFACTURING EQUIPMENT OF BUYER.
a. Buyer shall supply to Producer, deliver and install, at no cost to
the Producer, certain existing equipment of the Buyer identified in
Schedule D (the "Manufacturing Equipment") that is used in the
production of the Products for installation in the Approved
Facilities identified on Schedule D. Buyer shall use its best
efforts to ensure that the delivery and installation of the
equipment at an Approved Facility shall be completed no later than
the dates set forth on Schedule D, subject to any Force Majeure
Events. Except as disclosed to Producer at the time of the moving of
the Manufacturing Equipment from their current locations, Buyer
represents and warrants that the Manufacturing Equipment is, or
shall be, after delivery and installation at the Approved
Facilities, in good operating condition and repair (reasonable wear
and tear excepted) and suitable for its intended purpose.
b. Buyer shall control, and be responsible for all of its costs related
to, the removal, packaging, moving and reinstallation of the
Manufacturing Equipment to the designated Approved Facility for such
equipment. Buyer shall retain title to, and shall maintain property
insurance on, all of the Manufacturing Equipment.
c. If during the Agreement Term, Buyer and Producer jointly agree in
writing that any additional manufacturing equipment is needed to
manufacture the Products at an Approved Facility under this
Agreement, Buyer shall be responsible for all costs related to the
purchase, delivery and installation of such additional equipment.
Such additional equipment shall become part of the Manufacturing
Equipment, the title to which shall be retained by Buyer.
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d. In the event that any of the Manufacturing Equipment (whether or not
such equipment is existing as of the Commencement Date) requires
extraordinary repairs in the nature of major overhauls and/or major
upgrades during the Agreement Term, the Buyer shall control, and be
responsible for all costs related to, such extraordinary repairs.
e. Producer shall control, and be responsible for all costs related to,
all ordinary and routine maintenance and repair of the Manufacturing
Equipment during the Agreement Term. In the ordinary course of
business, Producer shall maintain and repair such Manufacturing
Equipment so that such equipment is, and remains, in substantially
the same condition as when installed at the Approved Facilities by
Buyer, reasonable wear and tear and damage by unavoidable casualty
excepted.
f. Producer agrees that the Manufacturing Equipment shall only be used
by Producer in connection with the production of the Products on
behalf of the Buyer. Unless Buyer and Producer agree in advance in
writing, Producer agrees that it shall not use such equipment for
any other purpose. In addition, unless Buyer agrees in advance in
writing (which agreement shall not be unreasonably withheld),
Producer agrees that it shall not install any production lines at
the Centralia Plant other than for the production of the Products or
otherwise produce any products at the Centralia Plant other than the
Products.
g. At any time during the Agreement Term, Buyer shall be entitled to
remove from any Approved Facility, at its cost and expense, one or
more (but not all) of the production lines involving any of the
Manufacturing Equipment. Subject to any limitations reasonably
imposed by Producer as a result of space constraints at an Approved
Facility, Buyer shall be entitled to add, at its cost and expense,
one or more production lines involving any Manufacturing Equipment
at an Approved Facility for additional production of the Products.
14. WARRANTIES OF PRODUCER.
a. Producer agrees and warrants to Buyer that Producer has and will
adhere to all laws, regulations, orders, ordinances and industry
standards relating to Producer's manufacture, packaging, labeling
and sale of the Products, including those specifically relating to
the manufacture and packaging of foodstuffs and the Federal Food,
Drug and Cosmetic Act; that each unit of the Products will meet the
Specifications therefor and, upon delivery to Buyer, will be free of
all defects of manufacture, handling, packaging and processing.
Producer warrants that the Products shall be merchantable and fit
for the purpose for which they are intended to be used.
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b. Producer warrants that it has obtained, or prior to the time it
commences production of the Products will have obtained, any
governmental approvals required in connection with the production
and sale of the Products, and will furnish copies or other evidence
satisfactory to Buyer of all such approvals upon the request of
Buyer.
c. Producer warrants that all raw materials and packaging materials for
the manufacturing and packaging of the Products will be sampled and
tested by Producer in accordance with its obligations under this
Agreement, including those contained in Section 15 of this
Agreement.
d. At Producer's request, Buyer shall make reasonable amounts of each
allegedly defective or nonconforming unit of the Product available
for Producer's inspection or shall, if so directed by Producer,
return, at Producer's cost and expense, each such unit of the
Product to an Approved Facility of the Producer.
e. In the event of Producer's breach of the covenants or warranties set
forth in this Section 14, Producer shall, at Buyer's option, either
(i) replace the defective or nonconforming units of the Product at
Producer's sole cost and expense and deliver the replacement units
of the Product to Buyer within 20 days, or (ii) permit Buyer, at
Producer's sole cost and expense, to return the defective or
nonconforming units of the Product and, if payment therefor has
already been made, credit the price thereof to Buyer, together with
all incidental damages incurred by Buyer in connection with such
return. Buyer shall have no obligation to accept delivery or take
possession of any defective or nonconforming Product from Producer.
f. Producer warrants that, in connection with this Agreement, Producer
shall comply with all applicable federal, state and local laws and
regulations, including, without limitation, to the extent
applicable, Executive Order 11246 and 41 C.F.R. ss.60-1.4.
g. Producer shall not be responsible for damage to Products caused by
Buyer's carriers, warehouses or distribution centers, or customers.
15. QUALITY ASSURANCE INSPECTIONS AND TESTING
a. Representatives of Buyer shall have the right to inspect, at
reasonable times and upon prior notice, the Approved Facilities and
to observe its procedures prior to and during the period of
manufacturing, packaging, storing and handling the Products.
Producer reserves the right to guide
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such inspections in order to protect the confidential nature of
other products being manufactured by Producer.
b. Producer shall be responsible for routine quality assurance of the
Products at the time of manufacture and, in the fulfillment of such
obligations, shall apply quality assurance tests, procedures and
methods in accordance with the Specifications.
16. INSPECTIONS, ACCEPTANCE AND RETURNS.
a. Product not rejected within thirty (30) days after title passes to
Buyer will be deemed accepted by Buyer. If, after any inspection,
Buyer attempts to reject any Product, Buyer shall specify all
claimed non-conformity in a notice of rejection sent to Producer.
Product rejected by Buyer shall be returned in substantially the
same condition as when title passed to Buyer. Nothing contained in
this Agreement shall relieve in any way Producer from the obligation
of testing, inspection and quality control.
17. RAW MATERIALS FOR OTHER PRODUCTS OF BUYER.
a. Producer has offered to coordinate and aid in the purchasing of
materials for other locations producing Xxxxxx Xxxxx products for
Buyer.
b. Such purchasing activities will be limited to the following:
1. Establishing approved suppliers with mutual agreement of
Buyer;
2. Furnishing copies of Buyer's approved specifications necessary
to suppliers;
3. Obtaining the same prices for such materials as Producer would
obtain if Producer purchased such materials directly;
4. Receiving production and material requests from outside
manufacturing locations contracted by Buyer;
5. Promptly placing these requests with suppliers to assure
timely delivery of goods to outside manufacturers; and
6. Promptly notifying outside manufacturers and Buyer when
Producer becomes aware that suppliers cannot meet requested
delivery schedules.
Producer is not responsible for the following.
-14-
1. Producer will not purchase and resell to Buyer or outside
manufacturers materials, but will instead have these materials
billed directly to Buyer.
2. Producer will not undertake any guarantees or warranties
regarding material quality or regulatory compliance. All such
warranties or guarantees will be the responsibility of the
material suppliers.
3. Producer at no time agrees to take title or risk of loss for
raw materials purchased by Buyer for outside manufacturers.
4. Producer will not take responsibility for inventory levels at
outside manufacturers, other than promptly executing and
expediting material requests.
18. FORCE MAJEURE; PRODUCTION AT SUBSTITUTE FACILITIES
a. In the event of strikes; war; civil insurrection; riots; thefts;
inability to obtain necessary labor or materials; fire; flood;
earthquake; or other act of God beyond the control of the parties
hereto which renders it impracticable for either party to comply
with the terms of this Agreement (a "Force Majeure Event"), except
as otherwise set forth herein, no liability for noncompliance caused
thereby during the continuance thereof will exist or arise under
this Agreement.
b. If a Force Majeure Event occurs, the party who is unable to perform
as a result of such event shall immediately notify the other party,
which other party may suspend its obligations hereunder for a period
equal to the Force Majeure Event. In addition, it within 45 days
after the occurrence of the Force Majeure Event, the party who was
unable to perform as a result of such event is still unable to
perform in accordance with this Agreement, the other party may
terminate this Agreement upon written notice to the party who is
unable to perform in accordance with this Agreement.
c. If a Force Majeure Event occurs, the party who is unable to perform
as a result of such event agrees that it shall use its best efforts
to eliminate the cause of such event or otherwise take actions so
that it is able to perform under this Agreement as promptly as is
reasonably practicable.
d. If a Force Majeure Event occurs that directly affects fewer than all
of the Approved Facilities of the Producer (e.g., a fire at only one
of the Approved Facilities), Producer agrees that, if, as a result
of the Force Majeure Event, Producer is unable to produce from an
Approved Facility the amount of the Monthly Production Request for
any particular line of
-15-
Product that the Monthly Production Request contemplates being
produced from such Approved Facility, Producer shall produce the
amount at a Substitute Facility to the extent reasonably
practicable. In such event, Producer agrees to use its best efforts
to fulfill Buyer's needs, including the use of all uncommitted
production and all possible overtime. The price charged to the Buyer
for the Product produced at the Substitute Facility shall be the
unit price for producing such Product at the Substitute Facility. In
the event Producer produces the Products at a Substitute Facility,
Producer shall reimburse Buyer for 50% of all incidental damages
(e.g., additional shipping charges) incurred by Buyer as a result of
the Products being produced at a Substitute Facility.
e. If a Force Majeure Event occurs that directly affects fewer than all
of the Approved Facilities of the Producer, Producer agrees that, in
the event that the transfer of production of Products to a
Substitute Facility creates production capacity problems at the
Substitute Facility, Producer shall in good faith take reasonable
steps to meet the production requirements of the Buyer under this
Agreement, including the use of all uncommitted production and all
possible overtime. In addition, Producer agrees that, in the event
of a production capacity problem at a Substitute Facility as a
result of a Force Majeure Event that directly affects fewer than all
of the Approved Facilities of the Producer, Producer shall fairly
and in good faith allocate production capacity at the Substitute
Facility to the production requirements of the Buyer.
19. INDEMNIFICATION.
a. Producer will indemnify and hold harmless Buyer and its
representatives, stockholders, controlling persons, and affiliates
(collectively, the "Buyer Indemnified Persons") for, and will pay to
the Buyer Indemnified Persons, the amount to any loss, liability,
claim, damage, cost and expense (including costs of investigation
and defense and reasonable attorneys' fees), (collectively,
"Damages"), incurred by the Buyer Indemnified Persons involving a
third-party claim arising, directly or indirectly, from or in
connection with any injury (including death) to person or property
to the extent proximately caused by the Producer's breach of this
Agreement, negligence or willful misconduct.
The remedies provided in this Section 19(a) will not be exclusive of
or limit any other remedies that may be available to Buyer or Buyer
Indemnified Persons.
b. Buyer will indemnify and hold harmless the Producer and its
representatives, stockholders, controlling persons and affiliates
(collectively, the "Producer Indemnified Persons") for, and will pay
to the
-16-
Producer Indemnified Persons, the amount of any Damages incurred by
the Producer Indemnified Persons involving a third-party claim
arising, directly or indirectly, from or in connection with any
injury (including death) to person or property to the extent
proximately caused by the Buyer's breach of this Agreement,
negligence or willful misconduct.
The remedies provided in this Section 19(b) will not be exclusive of
or limit any other remedies that may be available to Producer or the
Producer Indemnified Persons.
c. Promptly after receipt by an indemnified party under Section 19(a)
or 19(b) of notice of the commencement of any proceeding against it,
such indemnified party will, if a claim is to be made against an
indemnifying party under any such Section, give written notice to
the indemnifying party of the commencement of such claim, but the
failure to notify the indemnifying party will not relieve the
indemnifying party of any liability that it may have to any
indemnified party, except to the extent that the indemnifying party
demonstrates that the defense of such action is prejudiced by the
indemnified party's failure to give such notice.
d. If any proceeding referred to in Section 19(c) is brought against an
indemnified party and it gives notice to the indemnifying party of
the commencement of such proceeding, the indemnifying party will be
entitled to participate in such proceeding and, to the extent that
it wishes (unless (i) the indemnifying party is also a party to such
proceeding and the indemnified party determines in good faith that
joint representation would be inappropriate, or (ii) the
indemnifying party fails to provide reasonable assurance to the
indemnified party of its financial capacity to defend such
proceeding and provide indemnification with respect to such
proceeding), to assume the defense of such proceeding with counsel
reasonably satisfactory to the indemnified party and, after notice
from the indemnifying party to the indemnified party of its election
to assume the defense of such proceeding, the indemnifying party
will not, as long as it diligently conducts such defense, be liable
to the indemnified party under this Section 19 for any fees of other
counsel or any other expenses with respect to the defense of such
proceeding subsequently incurred by the indemnified party in
connection with the defense of such proceeding. If the indemnifying
party assumes the defense of a proceeding, (i) no compromise or
settlement of such claims may be effected by the indemnifying party
without the indemnified party's consent (which consent shall not be
unreasonably withheld) unless (A) there is no finding or admission
of any violation of legal requirements or any violation of the
rights of any person and no effect on any other claims that may be
made against the indemnified party, and (B) the sole relief provided
is monetary damages that are paid in full by the indemnifying party;
and (ii) the
-17-
indemnified party will have no liability with respect to any
compromise or settlement of such claims effected without its
consent. If notice is given to an indemnifying party of the
commencement of any proceeding and the indemnifying party does not,
within ten days after the indemnified party's notice is given, give
notice to the indemnified party of its election to assume the
defense of such proceeding, the indemnifying party will be bound by
any determination made in such proceeding or any compromise or
settlement effected by the indemnified party.
e. Notwithstanding the foregoing, if an indemnified party determines in
good faith that there is a reasonable probability that a proceeding
may adversely affect it or its affiliates other than as a result of
monetary damages for which it would be entitled to indemnification
under this Agreement, the indemnified party may, by notice to the
indemnifying party, assume the exclusive right to defend,
compromise, or settle such proceeding, but the indemnifying party
will not be conclusively bound by any determination of a proceeding
so defended or any compromise or settlement effected without its
consent (which may not be unreasonably withheld). Should the
indemnified party elect this option, the indemnifying party shall be
entitled to consent to the counsel selected by the indemnified
party, which consent shall not be unreasonably withheld.
20. INSURANCE. During the Agreement Term, Producer agrees to maintain
insurance against public liability which may arise out of, relate to or be
caused by the Products in an amount of not less than $5 million per
occurrence. Producer will maintain at all times during the Agreement Term
product liability insurance in an amount of not less than $5 million per
occurrence. In addition, Producer shall maintain liability umbrella
coverage of not less than $10 million. Producer shall deliver to Buyer
certificates of insurance issued by the insurance carriers adding the
Buyer as an additional insured on all such policies. Each such certificate
shall provide that such insurance shall not be canceled without fifteen
days prior written notice to the Buyer.
21. TERMINATION.
a. If either party shall breach any of the provisions of this Agreement
and such breach shall continue for a period of thirty (30) days
after the receipt of written notice specifying the breach to such
party, or should either party (i) file or have filed against it a
bankruptcy petition (which, in the case of a petition filed against
a party, is not thereafter dismissed within sixty days after the
filing of the petition against the party) or (ii) enter into any
type of proceeding under and pursuant to the insolvency or
receivership laws of any state or (iii) make a general assignment
for the benefit of creditors or (iv) a Force Majeure Event occurs
that gives rise to a right of termination under Section 18, then,
and in any such events, the other party shall have
-18-
the right to terminate this Agreement by giving written notice to
that effect to such party, with termination becoming effective upon
the date set forth therein.
b. The termination of this Agreement shall not relieve either party of
any obligation or liability accrued prior to termination, or rescind
or give rise to any right to rescind anything done by either party
prior to such termination. The termination of this Agreement shall
not in any way affect the confidentiality and non-use obligations
under Section 6 of this Agreement or any other obligations which are
expressly stated herein to be continuing or are by their nature
continuing.
c. Upon the effective date of a complete termination of this Agreement:
(i) The license provided for in Section 5 shall terminate.
(ii) Producer shall:
(a) cease any use of the Confidential Information of Buyer;
(b) return to Buyer or destroy all tangible forms of the
Confidential Information of Buyer;
(c) make available for purchase by the Buyer at Producer's
cost all packaging materials and other items of
inventory that, pursuant to Section 9(c), are tailored
exclusively for the Products;
(d) return to Buyer, at Buyer's sole cost and expense, all
of Manufacturing Equipment installed in any of the
Approved Facilities and provide access during normal
business hours to any representatives of Buyer to any
such facilities for the removal of such equipment from
the facilities of the Producer; and
(e) make available for delivery to Buyer any finished
Product inventory maintained by Producer.
(iii) Buyer shall:
(a) within ten days after such termination, purchase at
Producer's cost all packaging materials and other items
of inventory that, pursuant to Section 9(c), are
tailored exclusively for the Products and that are in
good and usable condition;
-19-
(b) within one hundred eighty days after such termination,
remove at Buyer's cost and expense, all of Manufacturing
Equipment installed in any of the Approved Facilities
and repair all damage caused to any of the Approved
Facilities in connection with the removal of such
equipment;
(c) within ten days after such termination, purchase any
finished Product inventory maintained by Producer;
(d) cease any use of the Confidential Information of
Producer;
(e) return to Producer or destroy all tangible forms of the
Confidential Information of Producer; and
(f) in the event the termination is as a result of a breach
of the Agreement by the Buyer, Buyer shall (x) within
thirty days after such termination, purchase at
Producer's cost all raw materials in inventory at the
Centralia Plant committed exclusively to Buyer's
production that are in good and usable condition and (y)
within thirty days after such termination, either (A)
pay to Producer an amount equal to the lesser of (1) the
amount that Producer is required to, and does, pay its
suppliers of raw materials for cancellation fees in
connection with orders for raw materials that were
committed exclusively to Buyer's production or (2) the
amount that Producer would be required to pay as a
brokerage fee if, in good faith and in the exercise of
reasonable care, Producer were to have a third party
broker the raw materials that are the subject matter of
such orders to another person or (B) assume the
obligations of the Producer under such orders for raw
materials that were committed exclusively to Buyer's
production. Producer agrees that it shall not cancel
such orders or broker the raw materials that are the
subject of such orders to a third party without first
providing Buyer at least two business days notice of
such actions (which notice shall set forth the cost
associated with each option) and offering Buyer the
opportunity to assume the obligations of the Producer
under the orders.
(iv) Producer shall make conforming deliveries under the terms of
this Agreement for any then-outstanding Orders of Products or
of Raw Materials; and
-20-
(v) All sums owed Producer by Buyer shall become immediately due
and payable.
22. MISCELLANEOUS.
a. Notice. Notices permitted or requested to be given hereunder shall
be in writing and shall be deemed effective, if given by registered
or certified mail, postage prepaid, ten (10) days after deposit
thereof with the appropriate postal authorities, and if given by
nationally recognized express courier which provides a receipt of
delivery, on the date delivery is completed, and in all cases
addressed to:
It to Producer: Xxxxxxx-Xxxx Xxx Corporation
0000 Xxxxx Xx.
Xxxxxxx, XX 00000
Attention: Xxx Xxxxx
Facsimile: (000) 000-0000
If to Buyer: Aurora Foods, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
b. Assignment. Neither party shall assign this Agreement without the
prior written consent of the other party; provided, however, that
either party may assign this Agreement without the written consent
of the other party in connection with the sale of all or
substantially all of the assets of such assigning party.
c. Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the parties and supersedes all prior or
contemporaneous agreements and understandings whether written, oral
or implied between Buyer and Producer or their affiliates with
respect to the subject matter hereto.
d. Amendment. Except for any Specifications that are furnished by Buyer
to Producer from time to time after the date hereof, and which shall
become a part of this Agreement, this Agreement may not be amended
superseded or altered except by an instrument in writing duly
executed and delivered on behalf of each of the parties hereto.
-21-
e. Waiver. No failure or delay on the part of either party hereto to
exercise any right, privilege or power under this Agreement shall
operate as a waiver or relinquishment thereof; nor shall any single
or partial exercise by either party preclude any other or further
exercise thereof, or the exercise of any other right, privilege or
power.
f. Severability. The provisions of this Agreement are separate and
divisible and if any court of competent jurisdiction shall determine
any provision of this Agreement to be void and/or unenforceable, the
remaining provision or provisions shall be construed as if the void
and/or unenforceable provision or provisions were not included in
the Agreement.
g. Non-Exclusive Agreement. This Agreement is not an exclusive
agreement, and Buyer may, without limitation, manufacture the
Products itself or may enter into an agreement with other parties
for the manufacture of any of the Products.
h. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Ohio.
i. Independent Contractors. The parties are independent contractors.
Nothing contained herein shall be deemed to create the relationship
of partnership or joint venture between the parties. Neither party
shall have the right to incur any obligation to third parties which
shall be binding upon the other.
j. Public Notice of Buyer's Ownership of Manufacturing Equipment
Located at Producer's Approved Facilities. Producer shall execute
such xxxxxx/bailee and other informational financing statements as
Buyer may request from time to time to give public notice that the
Manufacturing Equipment owned by Buyer and located at the Producer's
Approved Facilities are the property of Buyer. In addition, Producer
agrees to cooperate with Buyer in obtaining from Producer's lenders
written agreements pursuant to which such lenders acknowledge that
such Manufacturing Equipment is owned by the Buyer and, if
appropriate, release, or subordinate to Buyer, all of such lenders'
interests, if any, in the Manufacturing Equipment.
k. Option to Acquire the Centralia Plant Under Certain Circumstances.
During the Original Term (five years), in the event of a Change in
Control of the Producer (as hereinafter defined) or an Acquisition
of the Producer (as hereinafter defined) without the prior written
consent of Buyer (which consent may be withheld by Buyer in its sole
discretion), Buyer shall, for a period of six months after Buyer
receives notice of such event, have the option to purchase the real
property relating to the Centralia Plant and all attachments to the
real property necessary for the manufacture of Buyer's
-22-
Products located at the Centralia Plant for the Fair Market Value
(as hereinafter defined) of such property. This option shall in no
way hinder or prevent Producer from entering into any Acquisition or
Change of Control, but shall only affect ownership rights in the
Centralia Plant. Buyer shall be entitled to exercise such option by
giving written notice of such exercise at any time within such six
month period. The closing of such purchase shall occur within sixty
days of the exercise of such option. Buyer shall be transferred fee
simple title to all such property, free and clear of all material
liens and encumbrances, and Buyer shall deliver to the transferor of
such property the purchase price in cash at the closing. Buyer and
the transferor shall each be responsible for making payments or
delivering documents as are customary and usual in transactions of
this nature in Centralia, Illinois (e.g., proration of real estate
taxes, delivery of survey, title insurance, etc.). In the event that
Buyer exercises such option, the rights of Producer (or its
successors or assigns) under this Agreement (including any rights to
produce Products under this Agreement) shall terminate.
For purposes of this Section 22(k), (i) the term "Change in Control
of Producer" shall mean the acquisition of ownership or voting
control, beneficially or of record, by any person or group of
persons acting in concert (other than Xxx Xxxxx or his estate or
descendants) of shares representing more than fifty percent of the
voting power of the Producer within a twelve month period, (ii) the
term "Acquisition of the Producer" shall mean any transaction or
series of related transactions resulting, directly or indirectly, in
(a) the acquisition of all or substantially all of the assets of the
Producer, (b) the acquisition of more than fifty percent of the
issued and outstanding stock of the Producer within a twelve month
period or (c) the acquisition of the Producer by a merger,
consolidation or other combination; and (iii) the term "Fair Market
Value" of property shall mean the value mutually determined by the
transferor and transferee of such property, or, if they are unable
to mutually agree on such value within thirty days after the
commencement of negotiations on such value, then the value assigned
to such property by an independent appraiser jointly selected by the
transferor and transferee (or, if the transferor and transferee are
unable to jointly select an appraiser, then by an independent
appraiser appointed by the Chicago, Illinois office of the American
Arbitration Association).
-23-
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be
executed by their respective duly authorized representative to be effective as
of the date first set forth above.
AURORA FOODS INC. XXXXXXX-XXXX XXX CORPORATION
("Buyer") ("Producer")
By /s/ Xxxxxx X. Xxxxxxx By /s/ Xxxxxx X. Xxxxx
---------------------------- -------------------------------
Its President Its President and General Manager
-24-
Aurora Foods, Inc.
Schedule A
Product List
Xxxxxxx-Xxxx Xxx
--------------------------------------------------------------------------------
Xxxxxxx-Xxxx Xxx Product List (Xxxxxx Xxxxx Bake Mixes)
--------------------------------------------------------------------------------
BRAND CODE SKU DESCRIPTIONS
---------- --------------------
CAKE (20 SKUs)
--------------------
23233 Dark Chocolate Fudge
23443 Devils Food
23227 Fudge Marble
23311 French Vanilla
23269 Lemon
23276 Pineapple
23296 Spice
23304 Strawberry
23429 Swiss Chocolate
23219 White
23457 Yellow
23297 Orange
23241 Banana
23289 Butter Recipe Fudge
23283 Butter Recipe Golden
25481 Caramel
25640 Wild Cherry Vanilla
65105 Butterscotch
28872 Chocolate Mocha
FROSTING (11 SKUs)
--------------------
24138 Chocolate
24152 Dark Chocolate
24145 Milk Chocolate
24131 Vanilla
24229 Cream Cheese
25781 Buttercream
25504 Strawberry
25788 Caramel
25774 Chocolate Buttercream
25661 Wild Cherry Vanilla
29285 Chocolate Mocha
Aurora Foods, Inc.
Schedule B
Operating Manual
(ON FILE)
Part 1. Raw Material Approved Supplier Lists -- Included
Part 2. Raw Material Specifications -- To be provided
Part 3. Product Protection Program-- To be provided
Part 4 Plant Sanitation-- To be provided
Part 5 Processing --Adherence to Formula Cards-- Example
Provided
Part 6. Product Standards of Identity-- To be provided
Part 7. Quality Control Requirements-- To be provided
Part 8. Hold & Disposition Procedures-- To be provided
Part 9 Regulatory Inspections-- To be provided
Part 10 Qualtity Control Test Methods-- To be provided
Part 11. Product Recall-- To be provided
XXXXXXX - XXXX XXX
Aurora Foods, Inc.
Schedule C
Tolling Fee By Item
XXXXXXX - XXXX XXX
CAKE (20 SKUs)
-----------------------
23233 Dark Chocolate Fudge
23443 Devils Food
23227 Fudge Marble
23311 French Vanilla
23269 Lemon
23276 Pineapple
23296 Spice
23304 Strawberry
23429 Swiss Chocolate
23219 White
23457 Yellow
23297 Orange
23241 Banana
23289 Butter Recipe Fudge
23283 Butter Recipe Golden
25481 Caramel Confidential treatment has been requested
25640 Wild Cherry Vanilla for the information contained on this schedule.
65105 Butterscotch
28872 Chocolate Mocha
FROSTING (11 SKUs)
-----------------------
24138 Chocolate
24152 Dark Chocolate
24145 Milk Chocolate
24131 Vanilla
24229 Cream Cheese
25781 Buttercream
25504 Strawberry
25788 Caramel
25774 Chocolate Buttercream
25661 Wild Cherry Vanilla
29285 Chocolate Mocha
Aurora Foods, Inc.
Schedule D
Equipment List
(ON FILE)
XXXXXXX - XXXX XXX
