EXHIBIT 10.32
* Confidential Treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
SUPPLY AGREEMENT
This Supply Agreement ("Supply Agreement") is effective as of December
1, 2004 and is between CARALOE, INC., a Texas corporation ("CARALOE") with
its principal place of business located at 0000 Xxxxxx Xxxx Xxxx, Xxxxxx
Xxxxx 00000, MANNATECH, INC. a Texas corporation ("MANNATECH") with its
principal place of business located at 000 X. Xxxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000 and NATURAL ALTERNATIVES INTERNATIONAL, INC. a Delaware
corporation ("NAI") with its principal place of business located at 0000
Xxxxx Xxxxx Xxxxx, Xxx Xxxxxx, Xxxxxxxxxx. CARALOE, MANNATECH AND NAI are
hereinafter referred to as "Parties".
W I T N E S S E T H
WHEREAS, CARALOE desires to sell to MANNATECH and MANNATECH desires to
purchase from CARALOE, a bulk aloe xxxx mucilaginous polysaccharide
(hereinafter referred to under the product name of "Manapol[R] powder") in
quantities, at the price and upon the terms and conditions set forth herein;
and
WHEREAS, contemporaneously with the execution of this Agreement,
CARALOE and MANNATECH are entering into a Trademark License Agreement of
even date herewith (the "License Agreement") pursuant to which, among other
things, CARALOE is granting to MANNATECH a license to use the product name
Manapol[R] in connection with the labeling, advertising and sale of products
manufactured by or for MANNATECH that contain Manapol[R] powder; as one of
the ingredients in products manufactured by or for MANNATECH also containing
other ingredients and substances (the "Manufactured Products"); and
WHEREAS, MANNATECH and NAI are parties to that certain Manufacturing
Agreement dated April 22, 1998 (the "Manufacturing Agreement"), pursuant to
which NAI has agreed to manufacture, produce and bulk package for MANNATECH
the nutritional products described in the Manufacturing Agreement; and
WHEREAS, the Parties desire to memorialize in this Agreement the
arrangement among the Parties pursuant to which NAI shall purchase
Manapol[R] powder directly from CARALOE at the prices set forth herein for
the exclusive purpose of manufacturing the Manufactured Products for
MANNATECH;
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements contained herein, the Parties hereto agree as follows:
1. Term.
----
The term of this Supply Agreement shall be for a period of twelve (12)
months from December 1, 2004 to November 30, 2005 (the "Term") unless
further extended or sooner terminated as provided herein (such term, as
extended herein called, the "Term"). The Term (including each one-year
extension of the Term) shall be extended automatically for an
additional one (1) year period, provided that, at least thirty (30)
days prior to the end of the Term, MANNATECH and CARALOE mutually agree
in writing on the quantity and price of Manapol[R] powder to be sold by
CARALOE and purchased by MANNATECH hereunder during such additional
one-year period. At least sixty (60) days prior to the end of the
Term, CARALOE and MANNATECH shall commence good faith negotiations to
determine and agree upon such quantity and price for such additional
one-year period. If MANNATECH and CARALOE are unable to so agree on
such quantity and price, this Supply Agreement shall terminate
effective at the end of the then-current Term. Nothing contained in
this Paragraph 1 shall be deemed to (i) obligate MANNATECH and CARALOE
to agree upon such quantity and price, (ii) obligate a party to
negotiate with the other party regarding such quantity and price is
such other part is then in breach of or in default under this Supply
Agreement or the License Agreement or (iii) limit the rights of
MANNATECH and CARALOE under Paragraph 12 hereof. This Supply Agreement
shall terminate automatically upon the expiration or termination of the
License Agreement.
2. Sale and Purchase.
-----------------
2.1 Subject to the terms and conditions of this Supply Agreement,
CARALOE shall sell to MANNATECH and MANNATECH shall purchase from
CARALOE, not less than 250 kilograms of Manapol[R] per month
during the Term. CARALOE agrees that MANNATECH may increase or
decrease its monthly orders, incrementally, in amounts not to
exceed 200 Kg difference from the prior month's order, subject to
sixty (60) days prior written notice to CARALOE. In the event
that MANNATECH reasonably anticipates that it shall require more
than 200 Kg more Manapol[R] than its prior monthly order, CARALOE
will exert its best reasonable effort to deliver but will
guarantee delivery if MANNATECH gives CARALOE at least 180 days
prior written notice thereof.
2.2 MANNATECH and NAI agree that all Manapol[R] powder purchased by it
hereunder shall be used only as an additive in human or animal
health food products (in capsule, powder tablet or liquid form)
manufactured by or for MANNATECH that are intended for sale to the
ultimate consumer in the United States or any other of MANNATECH'S
countries of operation in which it conducts business and subject
to compliance with MANNATECH'S obligations under the License
Agreement, including without limitation MANNATECH'S obligations
under Article III thereof.
2.3 Beginning on the date hereof, unless otherwise specified by
MANNATECH, NAI agrees to purchase directly from CARALOE all
quantities of Manapol[R] powder that it requires to manufacture
Manufactured Products for MANNATECH under the terms of the
Manufacturing Agreement. CARALOE agrees that all purchases by NAI
pursuant to this Supply Agreement shall be credited on a monthly
basis against any minimum purchase requirements by MANNATECH as
set forth in this Supply Agreement.
2.4 All sales of Manapol[R] powder, whether to MANNATECH or NAI, shall
be subject to payment terms of 1% - 10 days, net 30 days. The
cash discount of 1% is allowed on invoices paid within 10 days
of date of invoice. Where cash discount for prompt payment is not
taken, the net total amount of invoice is due 30 days from date of
invoice.
3. Forecast.
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Subject to paragraph 2.1, for each calendar quarter during the Term,
MANNATECH and NAI shall agree upon a non-binding, good faith forecast
of the minimum and target aggregate quantities of Manapol[R] which
shall be provided to CARALOE on a quarterly basis commencing on the
date hereof
4. Pricing.
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*
5. Orders; Deliveries.
------------------
MANNATECH or NAI shall each instruct CARALOE from time to time during
the Term, by placing a purchase order with CARALOE reasonably in
advance of the date it desires Manapol[R] powder to be delivered to it
hereunder, as to (a) the quantities of Manapol[R] powder to be
delivered (b) the specific date of delivery, (c) the specific location
of delivery and (d) the particular carrier or particular type of
carrier for such delivery. In no event shall CARALOE be required to
deliver to NAI and/or MANNATECH in any three-month period a quantity of
Manapol[R] powder in excess of 125% of the maximum delivery requirement
for such period set forth in the non-binding Forecast for such period
accepted by CARALOE. The quantities of Manapol[R] powder ordered
pursuant to this Supply Agreement from time to time shall be spaced in
a reasonable manner, and MANNATECH or NAI shall each order such
quantities in accordance with the Forecast. Deliveries of Manapol[R]
powder shall be made by CARALOE under normal trade conditions in the
usual and customary manner being utilized by CARALOE at the time and
locations of the particular delivery. The Manapol[R] powder delivered
hereunder shall be packaged in five (5) kilogram containers. All
deliveries of Manapol[R] powder hereunder shall be made by CARALOE
F.O.B. at the facilities of CARALOE or its affiliates located in
Irving, Texas.
6. Exclusivity.
-----------
6.1 NAI agrees that any purchases of Manapol[R] powder from CARALOE
pursuant to the terms of this Supply Agreement shall be used
exclusively in connection with the production of products for
MANNATECH pursuant to the terms of the Manufacturing Agreement.
Without limitation, NAI agrees that it shall not sell Manapol[R]
powder purchased pursuant to the terms of this Supply Agreement in
bulk or otherwise, or use any purchases of Manapol[R] powder
purchased pursuant to the terms of this Supply Agreement in
connection with the production of products on behalf of any other
party other than MANNATECH.
6.2 CARALOE and MANNATECH agree that the Supply and License Agreements
shall be exclusive to the extent that CARALOE may not sell or
distribute Manapol[R] in bulk or wholesale form for sale or
otherwise, to anyone whom MANNATECH has by written notice to
CARALOE identified as (and who is), an Independent Associate of
MANNATECH ("Associate"), or whom CARALOE knows or should have
known to be an Associate of Mannatech. For the purposes of this
Agreement, an Associate is an individual or business entity which
has been assigned a MANNATECH account number, is bound by
MANNATECH'S Associate Agreement and the terms and conditions
related thereto, and which has placed at least one order for
MANNATECH products during the prior twelve (12) month period. For
purposes of this paragraph 6.2, the words "bulk or wholesale"
shall refer only to a sale of one (1) kilogram or more of
Manapol[R] raw material.
6.3 CARALOE agrees to discontinue making bulk or wholesale sales or
distributions of Manapol[R] raw material to any Associate within
thirty (30) days after receipt of written notice from MANNATECH
identifying such Associate.
7. Quality.
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CARALOE warrants to MANNATECH and NAI that all Manapol[R] powder sold
by CARALOE pursuant to this Supply Agreement will conform to the
quality specifications set forth in Exhibit A to this Supply Agreement.
EXCEPT AS PROVIDED IN THIS PARAGRAPH 7, THERE ARE NO WARRANTIES OR
REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS, AND FITNESS FOR A
PARTICULAR PURPOSE, MADE WITH RESPECT TO THE MANAPOL[R] POWDER TO BE
SOLD HEREUNDER, AND NONE SHALL BE IMPLIED BY LAW. THE FOREGOING
NOTWITHSTANDING, CARALOE DOES REPRESENT THAT THE MANAPOL[R] POWDER
DOES MEET THE SPECIFICATIONS OUTLINED ON EXHIBIT A AND THAT IT IS A
FOOD SUPPLEMENT UNDER THE FOOD & DRUG ADMINISTRATION'S RULES AND
REGULATIONS.
8. Insurance.
---------
CARALOE shall maintain comprehensive insurance coverage during the term
of this Supply Agreement, and any extensions thereof, with not less
than the same coverage, endorsements, limits and notice of cancellation
as shown in the insurance certificate attached hereto as Exhibit B.
CARALOE shall, within thirty (30) days after this Supply Agreement is
executed by all Parties, provide MANNATECH and NAI with a copy of its
insurance certificate naming MANNATECH and NAI as an additional
insured and listing the coverage, endorsements, limits, and notice of
cancellation provisions. CARALOE will not cancel or materially alter
such policy without providing at least thirty (30) days prior written
notice to all named insured. Failure by CARALOE to maintain insurance
coverage according to this article 10 shall constitute a material
breach of this Supply Agreement. It is understood and agreed that the
furnishing of such insurance certificate will not relieve CARALOE of
its other respective obligations under this Supply Agreement.
9. Confidential Information.
------------------------
9.1 CARALOE recognizes and acknowledges that MANNATECH'S trade
name(s), trademarks, copyrights, patents, marketing plans,
identity of and related information regarding its Associates,
product formulations and other proprietary product information and
any information relating to the management/operations of MANNATECH
are valuable assets belonging to MANNATECH and as such are the
sole property and may constitute trade secrets of MANNATECH.
Prior to and during the performance of the Supply and License
Agreements, CARALOE may have or had access to certain confidential
information pertaining to MANNATECH. CARALOE specifically agrees
CARALOE will not at any time, during or after the performance of
the Supply and License Agreements, in any manner, either directly
or indirectly, use, divulge, disclose, or communicate to any
person, firm or corporation, any confidential information of any
kind, nature, or description concerning any matters affecting or
relating to the business of MANNATECH (hereinafter referred to
as "MANNATECH Confidential Information"). MANNATECH Confidential
Information includes but is not limited to: MANNATECH genealogies
(being the information held by MANNATECH or by any current or
former Associate of MANNATECH related to its Associates including
without limitation its relationship with each of its Associates,
the Associate's name, upline and downline, charts, data reports,
proprietary product information which may from time-to-time be
made known to CARALOE, the names or practices of any of
MANNATECH'S customers or Associates; MANNATECH'S marketing methods
and related data; the names of MANNATECH'S vendors or suppliers;
costs of materials; costs of its products generally, the prices
MANNATECH obtains or has obtained or at which it sells or has sold
its products or services; manufacturing and sales costs; lists or
other written records used in MANNATECH's business; compensation
paid to its Associates, details of training methods, new products
or new uses for old products, merchandising or sales techniques,
contracts and licenses, business systems, computer programs, or
any other confidential information of, about, or concerning the
business of MANNATECH; its manner of operation or other
confidential data of any kind, nature or description.
9.2 CARALOE agrees to use the MANNATECH Confidential Information only
for MANNATECH business and shall return copies of any written
MANNATECH Confidential Information in CARALOE'S possession to
MANNATECH forthwith upon written demand and upon termination of
the Supply and License Agreements for whatever reason.
9.3 Notwithstanding anything to the contrary contained in this Supply
Agreement or the License Agreement,
9.3.1 CARALOE shall have no obligation to maintain in confidence or
return to MANNATECH any information (i) that was known to
CARALOE prior to its disclosure to CARALOE by MANNATECH or
any of its current or former Associates and that did not
become known to CARALOE through disclosure by a person who
was then known actually by CARALOE to have obtained such
information or made such disclosure in violation of any
obligation to MANNATECH, (ii) that is now in or hereafter
enters the public domain other than due to a breach by
CARALOE of this paragraph 9, (iii) that is disclosed to
CARALOE by a third party who is not actually known by CARALOE
to have obtained or disclosed such information in violation
of any obligation to MANNATECH, or (iv) that is independently
developed by CARALOE without the aid, application or use of
any MANNATECH Confidential information disclosed to CARALOE;
and
9.3.2 CARALOE may make any disclosure of MANNATECH Confidential
Information (i) that it is necessary or appropriate to make
in order to carry out its obligations under any written
agreement with MANNATECH, (ii) that it is required or
permitted to make pursuant to any written consent of or
written agreement with MANNATECH or (iii) that it is required
by law to make.
9.4 Each of MANNATECH and NAI recognize and acknowledge that CARALOE'S
trade name(s), trademarks, copyrights, patents, marketing plans,
product formulations, know-how, compounds, products, processes,
designs, production methods and techniques and other proprietary
product information and any information relating to the
management/operations of CARALOE are valuable assets and
confidential information belonging to CARALOE and as such are the
sole property of CARALOE and may constitute trade secrets of
CARALOE. Prior to and during the performance of the Supply and
License Agreements, each of MANNATECH and NAI may have or had
access to certain confidential information pertaining to CARALOE.
Each of MANNATECH and NAI specifically agrees it will not at any
time, during or after the performance of the Supply and License
Agreements, in any manner, either directly or indirectly, use,
divulge, disclose, or communicate to any person, firm or
corporation, any confidential information of any kind, nature, or
description concerning any matters affecting or relating to
the business of CARALOE (hereinafter referred to as "CARALOE
Confidential Information"). CARALOE Confidential Information
includes but is not limited to: the names or practices of any of
CARALOE'S customers; CARALOE'S marketing methods and related data;
the names of CARALOE'S vendors or suppliers; costs of materials;
costs of its products generally, the prices CARALOE obtains or has
obtained or at which it sells or has sold its products or
services; manufacturing and sales costs; lists or other written
records used in CARALOE'S business; compensation paid to its
Associates, details of training methods, new products or new uses
for old products, merchandising or sales techniques, contracts and
licenses, business systems, computer programs, or any other
confidential information of, about, or concerning the business of
CARALOE; its manner of operation or other confidential data of any
kind, nature or description.
9.5 Each of MANNATECH and NAI agree to use the CARALOE Confidential
Information only for CARALOE business and shall return copies of
any written CARALOE Confidential Information in its possession to
CARALOE forthwith upon written demand and upon termination of this
Agreement for whatever reason.
9.6 Notwithstanding anything to the contrary contained in this
Agreement,
9.6.1 MANNATECH shall have no obligation to maintain in confidence
or return to CARALOE any information (i) that was known to
MANNATECH prior to its disclosure to MANNATECH by CARALOE
that did not become known to MANNATECH through disclosure by
a person who was then known actually by MANNATECH to have
obtained such information or made such disclosure in
violation of any obligation to CARALOE, (ii) that is now in
or hereafter enters the public domain other than due to a
breach by MANNATECH of this paragraph 9, (iii) that is
disclosed to MANNATECH by a third party who is not actually
known by MANNATECH to have obtained or disclosed such
information in violation of any obligation to CARALOE, or
(iv) that is independently developed by MANNATECH without the
aid, application or use of any CARALOE Confidential
information disclosed to MANNATECH; and
9.6.2 MANNATECH may make any disclosure of CARALOE Confidential
Information (i) that it is necessary or appropriate to make
in order to carry out its obligations under any written
agreement with CARALOE, (ii) that it is required or permitted
to make pursuant to any written consent of or written
agreement with CARALOE or (iii) that it is required by law to
make.
10. Remedies.
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10.1 CARALOE acknowledges that MANNATECH has devoted considerable time
and resources in connection with the development of its sales
force and products and establishment of goodwill associated with
the same. CARALOE acknowledges that a breach by CARALOE of
paragraphs 6.2 or 9 would cause MANNATECH to suffer irreparable
harm, for which damages would be difficult to assess and further
agrees that MANNATECH shall be entitled to injunctive relief in
addition to any other right or remedy MANNATECH may have,
including without limitation, the recovery of damages for the
breach of this or any other surviving provision(s) in the Supply
Agreement and License Agreement.
10.2 Each of MANNATECH and NAI acknowledge that CARALOE has devoted
considerable time and resources in connection with the development
of its products, production procedures and methods, trade secrets
and intellectual property. Each of MANNATECH and NAI acknowledge
that a breach by it of paragraphs 2.2, 6.1 or 9 would cause
CARALOE to suffer irreparable harm, for which damages would be
difficult to assess and further agree that CARALOE shall be
entitled to injunctive relief in addition to any other right or
remedy CARALOE may have, including without limitation, the
recovery of damages for the breach of this or any other surviving
provision(s) in the Supply Agreement or License Agreement.
10.3 Without limitation, MANNATECH shall be entitled to all remedies
available to it under this Supply Agreement with respect to
purchases of Manapol[R] powder by NAI pursuant to this Supply
Agreement as though MANNATECH had made such purchase directly;
provided, that such rights and remedies shall not be duplicative
of any rights and remedies held by NAI hereunder, it being
understood and agreed that CARALOE shall not be required to
compensate both NAI and MANNATECH for the same breach, incident or
claim. CARALOE shall be entitled to all rights and remedies
available to it under this Supply Agreement with respect to the
sales of Manapol[R] powder to either MANNATECH or NAI pursuant to
this Supply Agreement (including without limitation, rights under
Force Majeure events, rights upon default or NAI and/or MANNATECH
and rights of equitable relief) as though MANNATECH has made such
purchase directly and no obligation of NAI hereunder shall relieve
MANNATECH of any liability or responsibility under this Supply
Agreement.
11. Disclaimer and Indemnity.
------------------------
11.1 To the extent that CARALOE warrants conformity of the Manapol[R]
Powder as set forth in paragraph 7 herein, MANNATECH shall
assume all financial and other obligations for its products
made with Manapol[R] powder, and CARALOE shall not incur any
liability or responsibility to NAI, MANNATECH or to third parties
arising out of or connected in any manner with Manufactured
Products. IN NO EVENT SHALL CARALOE BE LIABLE FOR LOST PROFITS,
SPECIAL DAMAGES, CONSEQUENTIAL DAMAGES OR CONTINGENT LIABILITIES
ARISING OUT OF OR CONNECTED IN ANY MANNER WITH THIS AGREEMENT OR
THE MANUFACTURED PRODUCTS. MANNATECH and NAI shall jointly and
severally defend, indemnify and hold harmless CARALOE and its
affiliates, and their respective officers, directors, employees
and agents, from and against all claims, liabilities, demands,
damages, expenses and losses (including reasonable attorneys' fees
and expenses) arising out of or connected with (i) any
manufacture, use, sale or other disposition of Manufactured
Products, or any other products of MANNATECH or NAI, by MANNATECH,
NAI or any other party and (ii) any breach by MANNATECH and/or NAI
of any of their respective obligations under this Supply
Agreement.
11.2 Without limiting in any manner the provisions of section 11.1,
CARALOE shall defend, indemnify and hold harmless MANNATECH and
NAI and their affiliates, and respective officers, directors,
employees and agents, from and against all claims, liabilities,
demands, damages, expenses and losses (including reasonable
attorneys' fees and expenses) arising out of or connected with (i)
and claim that Manapol[R] Powder supplied by CARALOE caused injury
or damage to a person or property and (ii) any breach by CARALOE
of any of its obligations under this Supply Agreement.
12. Force Majeure.
-------------
CARALOE shall not have any liability hereunder if it shall be prevented
from performing any of its obligations hereunder by reason of
any factor beyond its control, including without limitation, fire,
explosion, accident, riot, flood, drought, storm, earthquake,
lightening, frost, civil commotion, sabotage, vandalism, smoke, hail,
embargo, act of God or the public enemy, other casualty, strike or
lockout, or interference, prohibition or restriction imposed by any
government or any officer or agent thereof ("Force Majeure"), and
CARALOE'S obligations, so far as may be necessary, shall be suspended
during the period of such Force Majeure and shall be cancelled in
respect of such quantities of Manapol[R] powder as would have been sold
hereunder but for such suspension. CARALOE shall give MANNATECH prompt
notice of any such Force Majeure, the date of commencement thereof and
its probable duration and shall give a further notice in like manner
upon termination thereof. Each party hereto shall endeavor with due
diligence to resume compliance with its obligations hereunder at the
earliest date and shall do all that it reasonably can to overcome or
mitigate the effects of any such Force Majeure upon its obligations
under this Supply Agreement.
13. Rights Upon Default
-------------------
13.1 CARALOE'S Rights upon Default. If either MANNATECH or NAI (i.)
fail to purchase the quantities of Manapol[R] powder specified
for purchase by MANNATECH hereunder, (ii.) fails to make a
payment hereunder when due, or (iii.) otherwise breaches any
term of this Supply Agreement, and such failure or breach is not
cured to CARALOE'S reasonable satisfaction within five (5) days
(in the case of a failure to make a payment) or thirty (30) days
(in any other case) after receipt of notice thereof by MANNATECH,
or if MANNATECH fails to perform or observe any covenant or
condition on its part to be performed or observed when required to
be performed and observed, and such failure continues after the
applicable grace period, if any, specified in this Supply
Agreement, CARALOE may refuse to make further deliveries hereunder
and may terminate this Supply Agreement upon notice to MANNATECH,
and in addition, shall have such other rights and remedies,
including the right to recover damages, as are available to
CARALOE under applicable law or otherwise. If MANNATECH or NAI
become bankrupt, insolvent, or if a petition in bankruptcy is
filed by or against it, or if a receiver is appointed for it or
its properties, CARALOE may refuse to make further deliveries
hereunder and may terminate this Supply Agreement upon written
notice to NAI and MANNATECH, without prejudice to any rights of
CARALOE existing hereunder or under applicable law or otherwise.
Any subsequent shipment of Manapol[R] powder by CARALOE after a
failure by MANNATECH and/or NAI to make any payment hereunder, or
after any other default by MANNATECH hereunder, shall not
constitute a waiver of any rights of CARALOE arising out of such
prior default; nor shall CARALOE'S failure to insist upon strict
performance of any provision of this Supply Agreement be deemed a
waiver by CARALOE of any rights of CARALOE arising out of such
prior default; nor shall CARALOE'S failure to insist upon strict
performance of any provision of this Supply Agreement be deemed a
waiver by CARALOE of any of its rights or remedies hereunder or
under applicable law or a waiver by CARALOE of any subsequent
default by MANNATECH in the performance of or compliance with any
of the terms of this Supply Agreement.
13.2 MANNATECH'S Rights Upon Default.
If CARALOE fails in any material respect to perform its
obligations hereunder, and such failure is not cured to
MANNATECH'S reasonable satisfaction within thirty (30) days after
notice thereof by MANNATECH, MANNATECH and NAI shall have the
right to refuse to accept further deliveries hereunder and to
terminate this Supply Agreement upon notice to CARALOE, and in
addition, subject to the provisions of Section 10.3, shall have
such other rights and remedies, including the right to recover
damages, as are available under applicable law or otherwise. Any
subsequent delivery of Manapol[R] powder to MANNATECH and/or NAI
after any default by CARALOE under this Supply Agreement shall not
constitute a waiver of any rights of MANNATECH and/or NAI arising
out of such prior default; nor shall MANNATECH'S and/or NAI's
failure to insist upon strict performance of any provision of this
Supply Agreement be deemed a waiver by MANNATECH and/or NAI of any
of its rights or remedies hereunder or under applicable law or a
waiver by MANNATECH and/or NAI of any subsequent default by
CARALOE in the performance of or compliance with any of the terms
of this Supply Agreement.
14. Further Assurances.
------------------
The Parties shall execute and deliver such additional documents and
take such additional actions as any Party may reasonably deem to be
necessary or appropriate to more fully consummate the transactions
contemplated by and affect the purposes of this Supply Agreement. All
such additional documents and actions shall be deemed to have been
executed, delivered or taken on the date of this Supply Agreement,
except as may otherwise be appropriate.
15. Authority.
---------
The Parties represent that they have full capacity and authority to
grant all rights and assume all obligations they have granted and
assumed under this Supply Agreement.
16. Succession.
----------
The Parties hereto may not assign or otherwise transfer this Supply
Agreement or any of its rights or obligations hereunder (including,
without limitation, by merger or consolidation) without the prior
written consent of the other Parties; provided, however, that CARALOE
may assign any of its rights or obligations hereunder to any affiliate
of CARALOE. Subject to the immediately preceding sentence, this Supply
Agreement shall be binding upon and inure to the benefit of the Parties
hereto and their respective successors and assigns.
17. Counterparts.
------------
This Supply Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute
one and the same instrument.
18. Notices.
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All notices and other communications with respect to this Supply
Agreement shall be in writing and shall be deemed to have been duly
given when delivered personally or three (3) days following deposit in
the mails, first class mail, postage prepaid, to the address set forth
below, or such other address hereafter specified in like manner by one
Party to the others:
If to MANNATECH: 000 X. Xxxxx Xxxx, #000
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
---------------------------
If to NAI: 0000 Xxxxx Xxxxx Xxxxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
If to CARALOE: 0000 Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: President
19. Applicable Law; Venue.
---------------------
This Supply Agreement shall be governed by and construed in accordance
with the laws of Texas, without regard to any conflict-of-law rules
that would apply any other law. Venue of any action brought to enforce
or interpret this Supply Agreement shall only be in Dallas County,
Texas.
20. Binding Effect.
--------------
No Party may assign or otherwise transfer this Supply Agreement or
any of its rights or obligations hereunder, including without
limitation, by merger or consolidation, without the prior written
consent of the Party against which enforcement is sought; provided,
however, that CARALOE may assign any of its rights or obligations
hereunder to any affiliate of CARALOE. Subject to the immediate
preceding sentence, this Supply Agreement shall inure to the benefit of
and be binding upon the Parties and their respective successors and
permitted assigns. Nothing in this Supply Agreement, expressed or
implied, is intended to confer on any person other than the Parties or
their respective successors and permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Supply Agreement.
21. Interpretation.
--------------
If any provision of this Supply Agreement is held to be illegal,
invalid or unenforceable under present or future laws, such provision
shall be fully severable and the remaining provisions hereof shall
remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance from
this Supply Agreement. Furthermore, in lieu of such illegal, invalid
or unenforceable provision, there shall be added as part of this Supply
Agreement, a provision as similar in its terms to such illegal, invalid
or unenforceable provision as may be possible and be legal, valid and
enforceable.
22. No Inconsistent Actions.
-----------------------
Each party hereto agrees that it will not voluntarily undertake any
action or course of action inconsistent with the provisions or intent
of this Supply Agreement and, subject to Section 9 hereof, will
promptly do all acts and take all measures as may be appropriate to
comply with the terms, conditions and provisions of this Supply
Agreement.
23. Survival.
--------
The expiration or termination of the Term shall not impair the rights
or obligations of the Parties which have accrued hereunder prior to
such expiration or termination. The provisions of Paragraphs 2.2, 7,
9, 11, 13 and 14 hereof, and the rights and obligations of the Parties
thereunder, shall survive the expiration or termination of the Term.
24. Entire Agreement.
----------------
Except as otherwise contemplated hereby, this Supply Agreement and the
License Agreement, as amended, constitute the entire agreement of the
Parties, and supersedes all prior agreements and understandings (oral
and written), between or among the parties with respect to the subject
matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Supply Agreement
as of the date first above written.
MANNATECH, INC.,
a Texas corporation
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President and Chief Operating Officer
NATURAL ALTERNATIVES INTERNATIONAL, INC.
A Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
CARALOE, INC.,
a Texas corporation
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: CEO
EXHIBIT A
MANAPOL[R] POWDER PRODUCT SPECIFICATION
SOURCE:
Freeze dried powder produced from inner gel of Aloe Xxxx X.
PROCESSING:
Patented: U.S. and other patents
PRODUCT SPECIFICATIONS:
Appearance Fine white to beige powder
Complex carbohydrates Greater than or equal to 30%
soluble fraction
Moisture Less than or equal to 14%
Residue on ignition Less than or equal to 16%
Microbiological purity Meets U.S.P. specifications
Gel points Approximately 240 mg/oz
Viscosity (cP) @ 4 mg/ml Approximately 40
Total acidic value (as malic acid) Approximately 0.7% by AOAC method
Fiber content (greater than 5um) Less than or equal to 60%
