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EXHIBIT 10.1
CALAVO GROWERS, INC.
MARKETING AGREEMENT
GROWER'S NAME ____________________________________________________
GROWER'S ADDRESS _________________________________________________
GROWER'S TAXPAYER I.D. NUMBER ____________________________________
GROWER'S ELECTION: ____ MONTHLY OR ____ WEEKLY POOL
EFFECTIVE DATE OF AGREEMENT ______________________________________
GROVE LOCATION ___________________________________________________
NUMBER OF TREES ____________
This Marketing Agreement (the "Agreement") is entered into by and between
the above-named grower (the "Grower") and Calavo Growers, Inc. ("Calavo"), a
California corporation whose address is 0000 Xxx Xxxx Xxxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000-0000. The effective date of this Agreement is specified above.
However, if this Agreement is being executed by the parties prior to the merger
of Calavo Growers of California, a California nonprofit cooperative association,
into Calavo, the effective date of this Agreement will be the date on which the
merger occurs. Calavo will advise the Grower of the date of the merger, and
neither party will have any obligations under this Agreement until the merger
occurs.
The Grower represents that it is the producer of California avocados.
Calavo desires to pack and market these avocados. The following terms are hereby
agreed upon by both parties:
1. Delivery
The Grower will deliver to Calavo all of the avocados grown by the Grower
on the grove listed above and on all other land now or hereafter owned by the
Grower or in the Grower's possession as tenant, except avocados that are
retained for the Grower's personal use or consumption and except avocados of
such varieties that Calavo notifies the Grower are not economical to handle
because of the character, quantity or marketability of the fruit. Except as
described in the preceding sentence, Calavo will market, when and where
feasible, all of the avocados grown by the Grower.
Delivery of the avocados will be made at the Grower's expense and risk of
loss and at the time and place and in the manner reasonably specified by the
Grower, including, without limitation, through the Grower's right to require
Calavo to obtain possession of the avocados at the Grower's grove. Title to the
avocados will pass to Calavo only on the date that it obtains actual possession
of the avocados.
Calavo has the right to inspect the Grower's xxxxxx for crop estimating and
harvesting purposes during reasonable hours. The Grower will assist Calavo in
preparing an annual crop forecast. Calavo has full control of grading, sizing
and weight standards. The Grower will comply with all applicable laws and
regulations regarding the production, harvesting and delivery of the avocados.
2. Term
The term of this Agreement will be for one year from the effective date and
will automatically renew on a year-to-year basis unless either party gives
written notice of termination of this Agreement at least thirty days prior to
the applicable anniversary of the effective date. Calavo may also terminate this
Agreement upon written notice to the Grower if the Grower is in breach of this
Agreement and fails to correct the breach within ten days after receipt of
written notice of the breach from Calavo. If the Grower engages in a bona fide
sale or lease to a third party of the grove(s) that is subject to this
Agreement, this Agreement will terminate as to such grove(s) on the effective
date of the sale or lease if (i) the Grower provides Calavo with satisfactory
written evidence of the bona fide nature of the sale or lease and (ii) all of
the Grower's obligations hereunder have been satisfied prior to the sale or
lease (including the obligation to deliver all avocados harvested prior to the
sale or lease). Subject to the preceding sentence,
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this Agreement is binding upon the successors and assigns of the Grower and
Calavo, although neither party has the right to assign its obligations to
another person or entity. No termination of this Agreement will release either
party from liability for breaches of this Agreement, and the provisions
described below in Sections 4 and 7 to 9 will survive the termination of this
Agreement.
3. Marketing
Calavo will receive, pack, market and sell the avocados delivered by the
Grower, at such prices and terms, in such form, and at such times as in its
judgment and discretion it deems best, and will pay the Grower as payment in
full the net proceeds received from the marketing of the avocados less a packing
and marketing fee established by its Board of Directors. The packing and
marketing fee will include, but is not limited to, the costs of receiving,
processing, manufacturing, handling, transporting, advertising, promoting, and
other costs of marketing and administrative costs, and will also include a
profit to Calavo. The avocados may be pooled in one or more pools established by
the Board of Directors and will not be identified to the Grower once they are
graded. Packing and marketing of the avocados will be under the exclusive
control of Calavo.
4. Liens
Calavo is hereby given a first lien upon all sales proceeds as security for
any and all amounts of any nature owed by the Grower to Calavo, and Calavo may
offset amounts due Calavo against amounts owed to the Grower under this
Agreement. Such rights of Calavo will not be barred by the running of any
statute of limitations, and such rights may be subordinated by appropriate
written instructions when authorized by the Board of Directors in its sole
discretion. The Grower will execute and deliver any documents requested by
Calavo to implement or perfect its rights under this Agreement.
5. Labor
Calavo will have no control whatsoever over the labor relations policies or
conduct or direction of labor relations of the Grower, nor will the Grower have
any control over Calavo's labor policies.
6. Consignment
The Grower acknowledges that Calavo may reconsign the avocados to another
party.
7. Notices; Entire Agreement; Severability
All notices to either the Grower or Calavo will be delivered in writing,
either personally, by facsimile transmission or by registered, certified or
express mail, return receipt requested, postage prepaid, to the address for such
party specified above or to such other address as the party may from time to
time advise the other party, and will be deemed given and received as of actual
personal delivery, on the first business day after the date of delivery shown on
any such facsimile transmission or upon the third business day after deposit in
the U.S. Mail if registered, certified or express mail is used, as the case may
be.
This Agreement constitutes the entire agreement of the Grower and Calavo
regarding the subject matter hereof and supersedes all prior agreements and
understandings pertaining to such subject matter. This Agreement may be amended
only by a writing signed by the Grower and Calavo.
If any provision of this Agreement is determined by a duly appointed
arbitrator or a court of competent jurisdiction to be invalid or unenforceable,
the remaining provisions of this Agreement shall continue in full force and
effect.
8. Remedies for Grower's Breach
The Grower's failure to deliver avocados as required by this Agreement will
result in injury to Calavo, and it would be extremely difficult and
impracticable to fix the amount of damages that Calavo will incur. Therefore,
the Grower agrees to pay to Calavo, upon Calavo's demand, the following amounts
as liquidated
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damages for all avocados that are withheld, delivered, sold, consigned or
otherwise marketed by or for the Grower other than in accordance with the terms
of this Agreement:
(a) $1,000; plus
(b) An amount equal to Calavo's packing and marketing fee per pound of
avocados that is in effect as of the date of the Grower's breach of this
Agreement, multiplied by the pounds of avocados that were withheld,
delivered, sold, consigned or otherwise marketed by or for the Grower other
than in accordance with the terms of this Agreement.
The foregoing right to recover liquidated damages is in addition to all
other remedies available to Calavo under applicable law including, without
limitation, the right to obtain injunctive relief, and all such remedies are
cumulative and not exclusive.
9. Governing Law; Enforcement of Agreement
This Agreement is governed by the internal laws of the State of California.
All disputes concerning this Agreement will be settled by arbitration, before
one arbitrator, in accordance with the commercial arbitration rules of the
American Arbitration Association then in effect. The arbitrator will be selected
in accordance with such commercial arbitration rules. A party is entitled to
initiate an arbitration proceeding if a dispute cannot be resolved amicably
within ten days after the other party has been notified of the existence of the
dispute. The arbitrator is authorized to grant injunctive relief and/or specific
performance in addition to monetary relief. The arbitrator hereby is instructed
to interpret and enforce this Agreement in accordance with its terms. All
arbitration proceedings will be held in Los Angeles, California. Notwithstanding
the foregoing, each party is entitled to bring an action for temporary or
preliminary injunctive relief at any time in any court of competent jurisdiction
in order to prevent immeasurable and irreparable injury that might result from a
breach of this Agreement that occurs prior to the conclusion of an arbitration
proceeding.
The award of the arbitrator in any arbitration proceeding will be final and
may be enforced in any court of competent jurisdiction, and an action to compel
arbitration may be brought in any court of competent jurisdiction. The
unsuccessful party to any arbitration proceeding or to any court action that is
permitted by this Agreement will pay to the successful party all costs and
expenses, including, without limitation, reasonable attorneys' fees and the fees
of the arbitrator, incurred therein by the successful party. EACH PARTY AGREES
THAT ALL RIGHTS TO A TRIAL BY A JURY OF ANY CLAIM CONCERNING THIS AGREEMENT ARE
ABSOLUTELY AND FOREVER WAIVED.
DATED: ________________________________ CALAVO GROWERS, INC.
By:
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Title:
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[Name of Grower]
By:
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Title:
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