EXHIBIT 10.22
SUPPLY AGREEMENT
THIS SUPPLY AGREEMENT (this "Agreement") effective as of
December 3, 1998 is by and between CARALOE, INC., a Texas
corporation ("Seller"), and EVENTUS INTERNATIONAL, INC., a
Delaware corporation ("Buyer"),
WITNESSEH:
WHEREAS, Seller desires to sell to Buyer, and Buyer desires
to purchase from Seller, Caraloe's Manapol[R] Powder (hereinafter
referred to under the name "Product") in the quantities, at the
price, and upon the terms and conditions hereinafter set forth;
and
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein, the parties
hereto agree as follows:
Term. The term of this Agreement shall commence on
December 3, 1998, and shall end at midnight on December 2, 2005,
unless sooner terminated as provided herein (the "Term").
2. Sale and Purchase. Subject to the terms and conditions of
this Agreement, Seller shall sell to Buyer, and Buyer shall
purchase from Seller, during each year of the Term, agreed upon
monthly quantities equal to all of Buyer's needs for Manapol[R]
Powder for the Product. Seller shall, however, not be required to
sell monthly quantities in excess of Seller's present plant, farm
or manufacturing capacity. The Product specifications shall be
mutually agreed upon by the Parties within ninety (90) days from
the date of execution of this Agreement. Failure to reach
agreement on the specifications within ninety (90) days shall
cause this Agreement to terminate unless an extension thereto is
mutually agreed upon by the Parties hereto.
3. A. Seller warrants to Buyer that all Manapol[R] Powder
sold by Seller pursuant to this Agreement will generally conform
to the quality specifications set forth in Exhibit A to this
Agreement as per Buyer and Seller mutual agreement referenced
above. EXCEPT AS PROVIDED IN THIS PARAGRAPH 3, THERE ARE: NO
WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTS 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.
4. Deliveries. Buyer shall instruct Seller from time to time
during the Term, by placing a purchase order with Seller
reasonably in advance of the date Buyer desires Manapol[R] Powder
to be delivered to it hereunder, (i) as to the quantities of
Manapol[R] Powder to be delivered to Buyer, (ii) as to the
specific date of delivery, (iii) as to the specific location of
delivery and (iv)
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as to the carrier or particular type of carrier for such
delivery. During the Term, Buyer shall provide Seller (a) on an
annual basis prior to the beginning of each year of the Term a
nonbinding forecast of Buyer's minimum and maximum aggregate
delivery requirements for Manapol[R]Powder for such year (provided
that such forecast for the second year of the Term shall be
provided to Seller by October 1, 1999), and (b) on a quarterly
basis at least thirty (30) days prior to the end of each
tnree-month period of the Term a forecast acceptable to Seller
(which shall be binding on Buyer) of Buyer's minimum and maximum
delivery requirements for Manapol[R] Powder for each month of the
next three-month period (provided that such forecast for the
initial period of the Term ending on March 31, 1999, shall be
provided to Seller by January 4, 1999). The quantities of
Manapol[R] Powder ordered by Buyer pursuant to this Agreement from
time to time shall be spaced in a reasonable manner, and Buyer
shall order such quantities in accordance with Buyer's binding
forecasts. In no event shall Seller be required to deliver to
Buyer 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 binding forecast for such period accepted
by Seller. Deliveries of Manapol[R]Powder shall be made by Seller
under normal trade conditions in the usual and customary manner
being utilized by Seller at the time and location of the
particular delivery. The Manapol[R] Powder delivered to Buyer
hereunder shall be packaged per agreement of the Parties. All
deliveries of Manapol[R]Powder to Buyer hereunder shall be made by
Seller F.O.B. at the facilities of Seller or its affiliates
located in Irving, Texas.
5. Purchase Price. All Manapol[R] Powder to be purchased by
Buyer under this Agreement shall be purchased by it, during the
first, second and third years of this Agreement, at a price per
Product as set forth on Exhibit B to this Agreement. Thereafter,
Buyer and Seller shall meet on a yearly basis to mutually agree
upon prices for the upcoming contract year. If prices for the
upcoming year cannot be agreed upon the Agreement shall terminate
on December 3 of the contract year in question. At delivery
point, Buyer shall bear all freight, insurance and similar costs,
and all sales taxes, with respect to such purchases from that
point forward. The purchase price of Manapol[R] Powder, together
with all related freights insurance and similar costs, and sales
taxes, shall be paid by Buyer to Seller within thirty (30) days
after the date of invoice.
6. Labels and Advertising
(a) XXX Compliance of Labels and Advertising. AD labels and
advertising relating to the Manapol[R] Powder that reference
Xxxxxxxxxx Laboratories or Seller sold hereunder must strictly
comply with all applicable rules and regulations of the FDA and
all other applicable laws, rules and regulations, including but
not limited to FDA requirements relating to product ingredients.
(b) Claims by Eventus International, Eventus International
hereby agrees not to make, or permit any of its employees, agents
or distributors to make, any claims of any prop erties or results
relating to Manapol[R] Powder and Caraloe, Inc. or Seller, unless
such claims have received written approval from the Seller.
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(c) FDA Approval of Claims. If Eventus International to seek
FDA approval as to any specific claims with respect to the
Manapol[R] Powder, Eventus International hereby agrees to (i)
notify Caraloe ofthe claims and the application prior to filing
and (ii) to keep informed as to the progress of the application,
including but not limited to sending Caraloe copies of all
communications or notices to or from the FDA, as applicable.
(d) Right to Approve Labels. etc. If Caraloe so requests,
Eventus International shall not use any label, advertisement or
marketing material or individual spokesman associated with the
Manapol[R] Powder and Xxxxxxxxxx Laboratories or Seller, unless
such label, advertisement or marketing material or individual
spokesman has first been submitted to and approved by Caraloe.
Caraloe shall not unreasonably withhold its approval of any such
label, advertisement or marketing material.
(e) Compliance by Third Parties. Eventus International shall
take all steps reasonably necessary to ensure that its
distributors and any other parties to whom it sells any of the
Manapol[R] Powder for resale do not relabel, repackage, advertise,
sell or attempt to sell the Manapol[R] Powder in a manner that
would violate this Agreement if done by Eventus International.
7. Confidentiality. In the performance of Seller's
obligations pursuant to this Agreement, Buyer may acquire from
Seller or its affiliates technical, commercial, operating or
other proprietary information relative to the business or
operations of Seller or its affiliates (the "Confidential
Information"). Buyer shall maintain the confidentiality, and take
a'D necessary precautions to safeguard the secrecy, of any and
all Confidential Information it may acquire from Seller or its
affiliates. Buyer shall not use any of such Confidential
Information for its own benefit or for the benefit of anyone
else. Buyer shall not publicly disclose the existence of this
Agreement or the terms hereof without the prior written consent
of Seller.
8. Force Majeure. Seller 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, lightning, 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
Seller'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. Seller
shall give to Buyer 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 up on the 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 Agreement.
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9. Rights Upon Default.
(a) Sellers Rights Upon Default. If Buyer (i) fails to
purchase the quantities of Manapol[R]Powder specified for purchase
by Buyer hereunder, (ii) fails to make a payment hereunder when
due or (iii) otherwise breaches any term of this Agreement, and
such failure or breach is not cured to Seller's reasonable
satisfaction within 5 days (in the case of a failure to make a
payment) or 30 days (in any other case) after receipt of notice
thereofby Buyer, or if Buyer fails to perform or observe any
covenant or condition on its part to be performed when required
to be performed or observed, and such failure continues after the
applicable grace period, if any, specified in the Agreement,
Seller may refuse to make further deliveries hereunder and may
terminate this Agreement upon notice to Buyer and, in addition,
shall have such other rights and remedies, including the right to
recover damages, as are available to Seller under applicable law
or otherwise. If Buyer becomes bankrupt or insolvent, or if a
petition in bankruptcy is filed by or against it, or if a
receiver is appointed for it or its properties, Seller may refuse
to make further deliveries hereunder and may terminate this
Agreement upon notice to Buyer, without prejudice to any rights
of Seller existing hereunder or under applicable law or
otherwise. Any subsequent shipment of Manapol[R] Powder by Seller
after a failure by Buyer to make any payment hereunder, or after
any other default by Buyer hereunder, shall not constitute a
waiver of any rights of Seller arising out of such prior default;
nor shall Seller's failure to insist upon strict performance of
any provision of this Agreement be deemed a waiver by Seller of
any of its rights or remedies hereunder or under applicable law
or a waiver by Seller of any subsequent default by Buyer in the
performance of or compliance with any of the terms of this
Agreement.
(b) Buver's Rights Upon Default. If Seller fails in any
material respect to perform its obligations hereunder, and such
failure is not cured to Buyer's reasonable satisfaction within 30
days after receipt of notice thereof by Seller, Buyer shall have
the right to refuse to accept further deliveries hereunder and to
terminate this Agreement upon notice to Seller and, in addition,
shaft have such other rights and remedies, including the right to
recover damages, as are available to Buyer under applicable law
or otherwise. Any subsequent acceptance of delivery of Manapol[R]
Powder by Buyer after any default by Seller under this Agreement
shall not constitute a waiver of any rights of Buyer arising out
of such prior default; nor shall Buyer's failure to insist upon
strict performance of any provision of this Agreement be deemed a
waiver by Buyer of any of its rights or remedies hereunder or
under applicable law or a waiver by Buyer of any subsequent
default by Seller in the performance of or compliance with any of
the terms of this Agreement.
10. Disclaimer and Indemnity. Buyer shall assume all
financial and other obligations for Buyer Product, and Seller
shall not incur any liability or responsibility to Buyer or to
third parties arising out of or connected in any manner with
Buyer Product. In no event shall Seller be liable for lost
profits, special damages, consequential damages or contingent
liabilities arising out of or connected in any manner with this
Agreement or Buyer Product. Buyer shall defend, indemnify and
hold harmless Seller and its affiliates, and their respective of
ricers, 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
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disposition of Buyer Product, or any other Product of Buyer, by
Buyer or any other party and (ii) any breach by Buyer of any of
its obligations under this Agreement.
11. Equitable Relief A breach by Buyer of the provisions of
Paragraph 2 shall cause Seller to suffer irreparable harm and, in
such event, Seller shall be entitled, as a matter of right, to a
restrailung order and other injunctive relief from any court of
competent jurisdiction, restraining any further violation
thereofby Buyer, its officers, agents, servants, employees and
those persons in active concert or participation with them. The
right to a restraining order or other injunctive relief shall be
supplemental to any other right or remedy Seller may have,
including, without limitation, the recovery of damages for the
breach of such provisions or of any other provisions of this
Agreement.
12. Survival. The expiration or termination of the Term
shall not impair the rights or obligations of either party hereto
which shall have accrued hereunder prior to such expiration or
termination. The provisions of Paragraphs 7, 9,10 and 11 hereof,
and the rights and obligations of the parties thereunder, shall
survive the expiration or termination of the Term.
13. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws ofthe State
of Texas.
14. Succession. Neither party hereto may assign or otherwise
transfer this Agreement or any of its rights or obligations
hereunder (including, without limitation, by merger or
consolidation) without the prior written consent ofthe other
party; provided, however, that Seller may assign any of its
rights or obligations hereunder to any U.S. Incorporated
affiliate of Seller. Subject to the immediately preceding
sentence, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns.
15. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto relating to the matters
covered hereby and supersede any and all prior understandings,
whether written or oral, with respect to such matters. The terms
of this Agreement shall prevail over any inconsistent terms
contained in any purchase order issued by Buyer and
acknowledgment or acceptance thereof issued by Seller. No
modification, waiver or discharge of this Agreement or any of its
terms shall be binding unless in writing and signed by the party
against which the modification, waiver or discharge is sought to
be enforced.
16. Notices. All notices and other communications with
respect to this Agreement shall be in writing and shall be deemed
to have been duly given when delivered personally or when duly
deposited 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 other:
If to Seller:
Caraloe, Inc.
0000 Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: General Manager
If to Buyer:
Eventus International, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: President
17. Interpretation. In the event that any provision of this
Agreement is illegal invalid or unenforceable as written but may
be rendered legal, valid and enforceable by limitation thereof,
then such provision shall be deemed to be legal valid and
enforceable to the maximum extent permitted by applicable law.
The illegality, invalidity or unenforceability in its entirety of
any provision hereof will not affect the legality, validity or
enforceability of the remaining provisions of this Agreement.
18. 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 Agreement and,
subject to the provisions of Paragraph 8 hereof, will promptly do
all acts and take all measures as may be appropriate to comply
with the terms, conditions and provisions of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed by their duly authorized officers as of the day
and year first above written.
CARALOE, INC.
By: /S/
Name:
Title:
EVENTUS INTERNATIONAL, INC
By: /S/
Name:
Title:
