MANUFACTURING AND SUPPLY AGREEMENT
MANUFACTURING
AND SUPPLY AGREEMENT
THIS
MANUFACTURING AND SUPPLY AGREEMENT
(the
“Agreement”) is made and entered into this 29th day of October, 2007 (the
“Effective Date”), by and between AURIGA
LABORATORIES, INC.
(“Auriga”) and MIKART,
INC.
(“Mikart”). Mikart is a Georgia corporation with its principal place of business
at 0000 Xxxxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, and Auriga is a
Delaware corporation with its principal place of business at 00000 Xxxxx Xxxxxx
Xxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
BACKGROUND:
Subject
to the terms and conditions contained in this Agreement, Auriga desires to
engage Mikart to manufacture the “Product” (as hereinafter defined) for
commercial distribution by Auriga, and Mikart desires to accept such
appointment.
NOW,
THEREFORE,
FOR
AND IN CONSIDERATION
of the
premise, Ten Dollars ($10.00) in hand paid, the mutual promises, covenants
and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE
1
DEFINITIONS
The
following words, terms and phrases, when used herein, shall have the following
respective meanings:
1.1 “Batch”
shall mean the quantity of seven hundred eighty thousand (780,000) tablets
of
the Product.
1.2 “Contract
Year” shall mean a twelve (12) consecutive month period after the Qualification
Date and during the Term of this Agreement. The first Contract Year shall
commence as of the Qualification Date, and subsequent Contract Years shall
commence on each anniversary of the Qualification Date.
1.3 “FDA”
shall mean the United States Food and Drug Administration, or any successor
agency thereof.
1.4 “Health
Registrations” shall mean the ANDA issued by the FDA with respect to the Product
and any other governmental or regulatory consents, registrations, approvals
or
permits necessary to sell or manufacture the Product in the
Territory.
1.5 “Product”
shall mean the Acetaminophen 650mg/Codeine 60mg owned by Mikart.
1.6 “Qualification
Date” shall mean the date on which Mikart satisfactorily completes its
validation and stability testing pursuant to Article 2 of this Agreement such
that it becomes authorized to begin manufacturing the Product under the Health
Registrations in accordance with the terms of this Agreement.
1.7 “Specifications”
shall mean the specifications for the manufacturing, packaging and labeling
of
the Product described on Exhibit
A
attached hereto and incorporated herein by reference.
1.8 “Substantial
Nonperformance” exists if either of the following occurs: (a) Mikart fails to
ship to Auriga at least 50% of the Product ordered in any purchase order by
the
delivery date for that order and does not cure such failure within thirty (30)
days, or (b) during any twelve (12) month period, Mikart fails on three (3)
or
more occasions to ship to Auriga at least 75% of the Product ordered in any
purchase order by the delivery date for that order and does not cure such
failure within thirty (30) days.
1.9 “Territory”
shall mean the United States of America and its territories and such other
locations as may be designated by the parties hereto pursuant to Section
2.3.
ARTICLE
2
VALIDATION,
HEALTH REGISTRATIONS & ADDITIONAL LOCATIONS
2.1 Validation.
Auriga
and Mikart acknowledge that Mikart must validate at least three (3) Batches
of
the Product prior to selling any of the Product to Auriga. After Mikart
successfully completes the Validation, Auriga shall be obligated to purchase
the
Batches so validated in accordance with the terms of this Agreement. Such
Batches shall be part of, and shall be applied to, Auriga’s minimum purchase
requirements within the first Contract Year. Mikart shall maintain stability
testing and validation data at its Atlanta, Georgia facilities or at such other
location as agreed to by Auriga and Mikart in accordance with FDA regulations.
All of Mikart’s costs incurred in connection with the validation, the stability
testing and the storage of data related thereto shall be periodically billed
to
and paid by Auriga.
2.2 Health
Registrations.
Mikart shall maintain the Health Registrations in full force and effect at
all
times during the Term of this Agreement. Auriga hereby acknowledges and agrees
that the Product and the Health Registrations are owned by, in the name of
and
for the benefit of Mikart, and that Auriga has no rights in or to the Product
or
any of the Health Registrations, except to the extent it is expressly authorized
by Mikart to market and sell the Product pursuant to this
Agreement.
2.3 Additional
Locations.
In the event Auriga desires to market, distribute or sell the Product in any
location not set forth in Section 1.8 (or previously designated pursuant to
this
Section 2.3), then Mikart shall, at Auriga’s request, cooperate in good faith
with Auriga to obtain any Health Registrations necessary or appropriate
therefore (and Auriga shall pay all of Mikart’s reasonable out-of-pocket
expenses therefore); provided, however, Auriga shall not market, distribute
or
sell any Product in such locations unless and until such Health Registrations
are obtained.
-
2
-
ARTICLE
3
MANUFACTURE
3.1 Exclusivity.
Subject to the terms and conditions contained herein, Mikart shall not
manufacture, package or sell the Product for
or to any person or entity other than Auriga during
the Term of this Agreement. Auriga
shall purchase exclusively from Mikart all of Auriga’s requirements for the
Product during the Term of this Agreement. Auriga
hereby agrees that, in the event it desires to sell, market or distribute any
other product which contains the active ingredient Acetaminophen during the
Term
of this Agreement, it shall offer the right of first refusal to Mikart to be
the
sole manufacturer thereof (on commercial terms, other than price, substantially
similar to those contained herein). Subject to the above restrictions, nothing
contained herein shall be deemed in any way to preclude Mikart from
manufacturing, packaging or selling any products on behalf of any person or
entity where the formulation for such products differs from the formulation
for
the Product.
3.2 Limited
Warranties.
Mikart hereby represents and warrants to Auriga that the Product when
manufactured and sold to Auriga hereunder shall conform to the Specifications.
In addition, Mikart represents and warrants to Auriga that Mikart, in its
manufacture of the Product, shall comply with all applicable federal, state
and
local laws, rules and regulations in the Territory, including without limitation
the current Good Manufacturing Practices, as published and amended from time
to
time by the FDA, and Mikart’s manufacturing and storage facilities shall comply
with all applicable federal, state and local laws, rules and regulations in
the
Territory. EXCEPT
AS SET FORTH IN THIS SECTION 3.2 AND SECTION 9.1, MIKART MAKES NO OTHER
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND MIKART HEREBY
SPECIFICALLY DISCLAIMS ALL SUCH OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING,
WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A
PARTICULAR PURPOSE.
With respect to each Batch of Product manufactured hereunder, this Section
3.2
shall remain effective until the expiration date noted on such
Product.
-
3
-
3.3 Quality
Control.
(a) Mikart
shall perform quality control testing on the Product in accordance with normal
industry standards to determine whether such Product conforms to the
Specifications. Contemporaneously with each shipment of Product hereunder,
Mikart shall provide Auriga with a certificate of analysis with respect to
such
Product. In addition, Mikart shall perform, at Auriga’s expense, any and all
other testing relating to the Product which is reasonably requested by Auriga
to
confirm that such Product meets the Specifications and promptly provide Auriga
with the results thereof; provided, however, that Auriga shall not be
responsible for the expenses associated with any such testing which shows that
such Product does not meet the Specifications.
(b) In
addition, Mikart shall be responsible for conducting an ongoing stability
program for the Product as required by federal law. Mikart shall provide the
results of such testing to Auriga in a timely manner as this data is generated
or received by Mikart. Mikart’s cost therefore shall be billed to and paid by
Auriga on a quarterly basis.
(c) Mikart
shall, upon the reasonable request of Auriga, assay any Product returned to
Auriga by a third party purchaser. Auriga shall reimburse Mikart for the costs
of any such assay unless the results thereof prove the cause of return is as
a
result of Mikart’s negligence or willful misconduct or the failure of such
Product to comply with the limited warranties contained in Section 3.2
hereof.
(d) In
the event that any Batch is subject to a recall, Auriga, at its expense, shall
conduct the recall, except that Mikart shall reimburse Auriga for the costs
of
such recall (including reimbursing Auriga for the Product at the invoice prices
paid by Auriga therefore) in the Territory to the extent such recall results
from the failure of the Product to comply with the limited warranties contained
in Section 3.2 hereof.
(e) Each
party hereto shall promptly notify the other of any recall of Product which
has
been directed by it or by any governmental or regulatory entity or agency for
any reason whatsoever. Such notice shall identify the reason for the recall
and
all relevant details thereof.
(f) Each
party hereto shall promptly deliver to the other a copy of all notices received
by it from the FDA during the Term of this Agreement relating to the
manufacture, packaging, storage, marketing, sale or distribution of the Product.
(g) Upon
the reasonable advance request of Auriga, Mikart shall permit a representative
of Auriga to inspect its facilities where the Product is manufactured, packaged
and stored, provided such representative first executes a copy of Mikart’s
standard visitor confidentiality agreement.
-
4
-
3.4 Packaging
and Labeling Materials.
Mikart shall order from time to time, at Auriga’s request and expense, labels,
package inserts and other packaging materials (the “Labeling Materials”) in
sufficient quantities to permit the packaging of the Product ordered by Auriga
from time to time hereunder. All required or appropriate directions, warnings,
instructions, information and other written content (the “Labeling Content”)
contained in or on or omitted from any Labeling Materials shall be the sole
responsibility and liability of Auriga.
3.5 Exclusive
License to Market and Sell the Product.
Mikart hereby grants to Auriga an exclusive, royalty free license to market
and
sell the Product in the Territory during the Term hereof. In consideration
of
such license, Auriga hereby agrees to deliver to Mikart the aggregate sum of
One
Hundred Thousand Dollars ($100,000.00) (the “License Fee”). The License Fee
shall be paid by Auriga to Mikart in accordance with the following:
| (i) |
Fifty
Thousand Dollars upon execution of this Agreement;
and
|
| (ii) |
Fifty
Thousand Dollars within sixty (60) days following Auriga’s receipt of its
first order of the Product hereunder, such amount to be included
on the
invoice for such Product, as described in Section 5.3 hereof.
|
ARTICLE
4
ORDERS
AND SALES
4.1 Forecasts.
Commencing on the Qualification Date, and thereafter at least thirty (30) days
prior to the commencement of each calendar quarter, Auriga shall provide Mikart
with a non-binding, rolling twelve (12) month forecast of its requirements
for
the Product.
4.2 Purchase
Orders.
Auriga shall place its orders for the Product no later than ninety (90) days
prior to the requested delivery date using separately numbered, written purchase
orders. Each purchase order must be for one or more full Batches (provided
Auriga shall have the right to specify the size packaging requirements of each
order as agreed to by the parties hereto). Purchase orders shall be transmitted
to Mikart via U.S. mail, private courier, e-mail, or facsimile transmission.
Each purchase order shall include complete and accurate information with respect
to the requested Product, quantity, sizes, shipment dates, shipment method
and
delivery destination. Subject to this Section 4.2, Mikart shall ship Product
within ten (10) days after the requested shipment date in the corresponding
purchase order. Mikart shall notify Auriga of any purchase orders containing
shipment dates which need to be rescheduled, and Mikart and Auriga shall work
together in good faith to schedule a new shipment date for such order (which
shall not be later than thirty (30) days after the date requested by Auriga).
In
addition, Auriga may postpone a requested shipment date by providing Mikart
at
least sixty (60) days prior written notice thereof.
4.3 Minimum
Purchase.
During
each Contract Year during the Term hereof, Auriga shall order and purchase
from
Mikart minimum quantities of the Product as follows:
-
5
-
|
Contract
Year
|
Minimum
Quantity
|
|
|
1
|
3
Batches
|
|
|
2
|
4
Batches
|
|
|
3
|
5
Batches
|
|
|
4
|
5
Batches
|
|
|
5
|
5
Batches
|
For
subsequent Contract Years, if any, Auriga’s minimum purchase obligation shall be
agreed to in writing by the parties; provided, however, that in the absence
of
such agreement between the parties, Auriga’s minimum purchase obligation for
such subsequent Contract Years shall remain the amount set forth above for
the
fifth (5th)
Contract Year.
4.4 Failure
to Meet Minimum Purchase Requirements.
Notwithstanding anything in this Agreement to the contrary, in the event Auriga
fails to meet its minimum purchase obligation set forth in Section 4.3 hereof
in
any Contract Year for any reason other than a breach of this Agreement by Mikart
or a force majeure event, Auriga shall pay to Mikart an amount equal to the
quantity of Product by which Auriga failed to meet its minimum purchase
obligation for such Contract Year multiplied by the then current price for
such
Product.
ARTICLE
5
PRICES,
TERMS OF PAYMENT
5.1 Price.
The prices to be paid for the Product by Auriga to Mikart for shipments made
during the first year after the Effective Date shall be as follows:
|
Price
|
Size
|
|
|
$19.90
|
Bottle
of 100’s
|
|
|
$96.00
|
Bottle
of 500’s
|
5.2 Price
Adjustments.
Mikart shall have the right to increase the prices charged for the Product
pursuant to Section 5.1 hereof one (1) time during each twelve (12) month period
after the Effective Date to reflect any increase in the cost of goods or
services necessary to manufacture the Product (“Total Product Costs”). In the
event that Mikart increases the prices charged for the Product pursuant to
the
preceding sentence and after the effective date of such increase Mikart’s cost
of raw materials or components for manufacturing or packaging the Product
further increases by more than five percent (5%) during such year, Mikart shall
have the right, by providing written notice to Auriga, to further increase
the
prices in such year by a percentage amount equal to the percentage amount such
cost increase exceeds five percent (5%); provided, that Mikart shall provide
Auriga with documented evidence of any such further cost increases and shall
use
its reasonable efforts to prevent any such further cost increases from
occurring. Auriga shall have the right to renegotiate price for the Product
upon
market entry or launch of a generic equivalent to the Product.
-
6
-
5.3 Payment
Terms.
Upon delivery of each purchase order by Auriga to Mikart hereunder, Auriga
shall
also deliver to Mikart a payment in the amount of fifty percent (50%) of the
price of the Product ordered pursuant to such purchase order. When the Product
set forth in the purchase order is ready for shipment, Mikart shall notify
Auriga of the same and Auriga shall promptly deliver to Mikart a payment in
the
amount of the remaining fifty percent (50%) of the price of the Product set
forth in the purchase order. Notwithstanding anything to the contrary set forth
herein, Mikart shall not be obligated to ship any Product to Auriga for which
Mikart has not received full payment pursuant to this Section 5.3.
ARTICLE
6
SHIPPING
DEFECTS, RETURNS
6.1 Shipping.
Mikart shall ship all Product ordered hereunder to Auriga f.o.b. Mikart’s
manufacturing facility, at which point the risk of loss for such Product shall
pass to Auriga. Mikart shall ship the Product to the location designated by
Auriga on its purchase order. The parties agree that the method and route of
shipment are at Mikart’s discretion unless Auriga furnishes Mikart explicit
instructions with the purchase order. Auriga agrees to pay all costs of shipping
and any costs of freight insurance obtained by Mikart at the request of Auriga.
Mikart agrees to provide reasonable support to assist Auriga in pursuing any
claims it may have against carriers.
6.2 Notification
of Defects.
Auriga shall notify Mikart in writing as soon as reasonably practicable after
delivery to Auriga of any non-conforming Product containing obvious defects
in
such Product discoverable without affecting the integrity of such Product’s
packaging (but in any event within twenty (20) days after delivery) and within
thirty (30) days of the earlier of its discovery or its notification by a third
party of any latent defects. Auriga shall be responsible for its cost to inspect
the Product.
6.3 Returns.
Mikart shall accept for return and replacement or credit (at invoiced cost)
any
Product sold to Auriga under this Agreement which does not conform with the
limited warranties set forth in Section 3.2 and for which proper notice has
been
given in accordance with Section 6.2, provided Auriga obtains prior shipping
authorization from Mikart. All returns of Product with obvious defects must
be
in the original manufactured condition. Mikart shall pay reasonable return
freight and shipping charges.
ARTICLE
7
TERM
AND TERMINATION
7.1 Term.
Unless earlier terminated in accordance with the provisions hereof, the Term
of
this Agreement shall commence on the Effective Date and shall thereafter
continue in effect until the fifth (5th) anniversary of the Effective Date
(the
“Initial Term”). At the end of the Initial Term and each subsequent “Renewal
Term” (as hereinafter defined), the Term of this Agreement shall be
automatically renewed and extended for a one
(1) year period (a “Renewal Term”), unless either party delivers a written
termination notice to the other party at least six
(6) months prior to the end of the Initial Term or the then current Renewal
Term, as the case may be. For purposes hereof the Initial Term and any Renewal
Terms are sometimes referred to collectively herein as the “Term.”
-
7
-
7.2 Termination.
Either
party may terminate this Agreement on written notice to the other party,
effective immediately if:
(a) the
other party commits a material breach of any of its obligations hereunder which
is not cured within ninety (90) days of written notice from the other party
specifying the breach;
(b) the
other party is dissolved or liquidated, files or has filed against it a petition
under any bankruptcy or insolvency law, makes an assignment to the benefit
of
its creditors, has a receiver appointed for all or substantially all of its
property, or has a petition under any bankruptcy or insolvency law filed against
it which is not dismissed within sixty (60) days; or
(c) the
Qualification Date has not occurred within one (1) year after the Effective
Date.
Such
right of termination shall be in addition to any other remedy a non-defaulting
party may have at law or in equity due to the other party’s breach of is
obligations hereunder.
7.3 Post-Termination
Restrictions.
Upon any expiration or termination of this Agreement (other than by Auriga
pursuant to Section 7.2), Auriga shall grant Mikart at least sixty (60) days
to
produce all open orders in house in accordance with the conditions of the open
orders and this Agreement. In the event Auriga terminates this Agreement
pursuant to Section 7.2, and upon the request of Auriga, Mikart shall provide
Auriga with reasonable assistance in locating or establishing a new manufacturer
for the Product.
7.4 Changed
Circumstances.
In the event that the market for the Product materially changes or either party,
in good faith, believes that a material change in such party’s circumstances
beyond their control has occurred which materially affects its ability to
perform its obligations pursuant to this Agreement, the parties hereto shall,
in
good faith, negotiate towards mutually acceptable revisions to this Agreement
to
address the impact of such material changes; provided, however, the terms of
this Agreement shall continue in full force and effect unless and until the
parties hereto agree otherwise. For the avoidance of doubt, the parties hereto
acknowledge and agree that if a generic version of the Product is introduced
into the market, then the parties shall be obligated to negotiate appropriate,
mutually acceptable revisions to this Agreement pursuant to this Section 7.4.
-
8
-
7.5 Force
Majeure.
The failure of either of the parties hereto to perform any obligation under
this
Agreement solely by reason of any cause beyond its control (and due to no fault
of its own), including, without limitation, acts of God, acts of government,
riots, wars, strikes and accidents in transportation, shall not be deemed to
be
a breach of this Agreement; provided, however, that the party so prevented
from
complying herewith shall continue to take all actions within its power,
including payment of outstanding invoices, to comply as fully as possible
herewith.
7.6 Post-Termination
Obligations.
Notwithstanding anything else contained herein to the contrary, following any
termination or expiration of this Agreement:
(a) Auriga
shall purchase from Mikart (at Mikart’s cost therefore) all of Mikart’s
remaining inventory of the Product; and
(b) The
license granted by Mikart to Auriga pursuant to Section 3.5 hereof shall
automatically, and without any further action by the parties hereto, terminate
and be of no further force or effect.
ARTICLE
8
INDEMNIFICATION
AND INSURANCE
8.1 Indemnification.
Mikart hereby indemnifies and agrees to defend and hold Auriga harmless from
and
against losses, claims, damages, liabilities, costs and expenses (including,
without limitation, attorneys’ fees and court costs) incurred by Auriga as a
result of any breach of this Agreement by Mikart or the failure of the Product
to comply with the limited warranties set forth in Section 3.2 hereof or
Mikart’s gross negligence or willful misconduct. Auriga hereby indemnifies and
agrees to defend and hold Mikart harmless from and against losses, claims,
damages, liabilities, costs and expenses (including, without limitation,
attorneys’ fees and court costs) incurred by Mikart as a result of any breach of
this Agreement by Auriga, the storage, marketing, sale or distribution of the
Product by Auriga, any Labeling Content contained in or on or omitted from
any
Labeling Materials, any failure by Auriga to provide sufficient instructions
or
warnings regarding the proper use of or the risks or dangers associated with
the
use of the Product to any user thereof or Auriga’s gross negligence or willful
misconduct.
8.2 Insurance.
Each party hereto shall maintain with a financially sound and reputable insurer
throughout the Term of this Agreement comprehensive general liability insurance,
including, without limitation, product liability insurance with liability limits
of at least $3,000,000 per occurrence and in the aggregate. Each party hereto
shall also name the other party as a vendor under the broad form vendor
endorsement on its policy and provide the other party with such evidence thereof
as is reasonably requested by the other party from time to time.
ARTICLE
9
WARRANTIES
AND REPRESENTATIONS OF THE PARTIES
9.1 Additional
Representations and Warranties of Mikart.
Mikart hereby additionally represents and warrants to Auriga the
following:
(a) Mikart
is a corporation duly organized and existing in good standing under the laws
of
the State of Georgia;
-
9
-
(b) Mikart
is neither a party to nor otherwise bound by any agreement or instrument which
prohibits or prevents it from performing its obligations under this Agreement;
and
(c) Mikart’s
manufacturing, packaging and storage facilities comply in all material respects
with all applicable federal, state and local laws, rules and regulations in
the
Territory.
9.2 Representations
and Warranties of Auriga.
Auriga hereby additionally represents and warrants to Mikart the
following:
(a) Auriga
is a corporation duly organized and existing under the laws of the State of
Delaware;
(b) There
are no material adverse claims pending or, to the best of Auriga’s knowledge,
threatened against Auriga by any entity with respect to any of its products
or
business;
(c) Auriga
is neither a party to nor otherwise bound by any agreement or instrument which
prohibits or prevents it from performing its obligations under this Agreement;
and
(d) All
Packaging Content included in or on the Labeling Materials shall at all times
be
complete and accurate and comply with all applicable laws, rules and regulations
in the Territory.
To Auriga’s knowledge, Auriga represents and warrants to Mikart that any Product
logo or design selected by Auriga will not violate any patents or other
intellectual property rights of any third party.
ARTICLE
10
CONFIDENTIALITY
AND NONSOLICITATION OF PERSONNEL
10.1 Confidentiality.
Each party hereto acknowledges that it has been and shall be exposed to certain
“Confidential Information” and “Trade Secrets” (both as hereinafter defined) of
the other party in connection with the transactions contemplated by this
Agreement and that its unauthorized use or disclosure of such information or
data could cause immediate and irreparable harm to such other party.
Accordingly, except to the extent that it is necessary to use such information
or data to perform its obligations under this Agreement, neither party shall,
without the express prior written consent of the other party, redistribute,
market, publish, disclose or divulge to any person or entity, or use or modify
for use, directly or indirectly, in any way for any person or entity: (a) any
of
the other party’s Confidential Information during the Term of this Agreement and
for a period of three (3) years after any expiration or termination of this
Agreement; and (b) any of the other party’s Trade Secrets at any time during
which such information constitutes a trade secret under applicable law. For
purposes hereof, “Confidential Information” shall mean all competitively
sensitive, non-public information (other than “Trade Secrets”) of or about a
party which is not generally known by or available to such party’s competitors,
and “Trade Secrets” shall mean “Trade Secrets” as defined under applicable law.
This Section 10.1 supersedes and replaces any prior confidentiality agreements
between the parties, all of which are hereby termination, null and void and
of
no further force or effect.
-
10
-
10.2 Nonsolicitation
of Personnel.
Neither party hereto shall, without the prior written consent to the other
party, either directly or indirectly, alone or in conjunction with any other
person or entity, solicit or attempt to solicit any “key or material” employee,
consultant, contractor or personnel of such other party in the State of Georgia
to terminate, alter or lessen his or her affiliation with such other party
at
any time during the Term of this Agreement and for a period of one (1) year
thereafter.
ARTICLE
11
ARBITRATION
OF DISPUTES
All
disputes arising out of or in connection with the interpretation, application
or
enforcement of this Agreement shall be settled by final and binding arbitration.
Such arbitration shall be conducted in a mutually acceptable location of
approximately equal geographic distance from the addresses of the parties first
above written, pursuant to the commercial arbitration rules of the American
Arbitration Association in effect at the time the arbitration is commenced.
The
decision of the arbitrators, which may include interest, shall be final and
binding on the parties hereto and may be entered and enforced in any court
of
competent jurisdiction by any party. The arbitration shall be pursued and
brought to conclusion as rapidly as possible. The prevailing party in the
arbitration proceeding shall be awarded reasonable attorneys' fees, expert
witness costs and expenses, and all other costs and expenses incurred in
connection with such proceeding, unless the arbitrators shall for good cause
determine otherwise.
ARTICLE
12
NOTICES
12.1 Delivery.
All notices, consents, requests and other communications hereunder shall be
in
writing and shall be sent by hand delivery, by certified or registered mail
(return-receipt requested), or by a recognized national overnight courier
service as set forth below:
|
If
to Mikart:
|
Mikart,
Inc.
0000
Xxxxxxxxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxx 00000
Attention:
Xxxxxx X. Xxxxxxx
|
|
If
to Auriga:
|
00000
Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx
000_
Xxx
Xxxxxxx, XX
Attention:_Philip
X. Xxxxx
|
-
11
-
12.2 Effective
Time.
Notices delivered pursuant hereto shall be deemed given: (a) at the time
delivered, if personally delivered; (b) at the time received, if mailed; and
(c)
one (1) business day after timely delivery to the courier, if by overnight
courier service.
12.3 Changes.
Either party hereto may change the address to which notice is to be sent by
written notice to the other party in accordance with the provisions of this
Article 12.
ARTICLE
13
MISCELLANEOUS
13.1 Severability.
If any provision of this Agreement is held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired, and the parties shall
use their best efforts to substitute a valid, legal and enforceable provision,
which, insofar as practical, implements the purpose of this
Agreement.
13.2 Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall be deemed one and the
same instrument.
13.3 Governing
Law.
This Agreement shall be governed by, and any matter or dispute arising out
of
this Agreement shall be determined by, the laws of the State
of Georgia.
13.4 Headings;
Gender.
“Article,” “Section” and other headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. All personal pronouns used in this Agreement
shall include the other genders, whether used in the masculine, feminine or
neuter gender, and the singular shall include the plural and vice versa,
whenever and as often as may be appropriate.
13.5 Entire
Agreement.
This Agreement represents the entire agreement of the parties with respect
to
its subject matter. Any and all prior discussions or agreements with respect
hereto are merged into and superseded by the terms of this Agreement. This
Agreement may be modified or amended only in writing signed by both parties
which expressly refers to this Agreement and states an intention to modify
or
amend it. No such amendment or modification shall be effected by use of any
purchase order, acknowledgment, invoice or other form of either party and in
the
event of conflict between the terms of this Agreement and any such form, the
terms of this Agreement shall control.
13.6 Notices.
Any notice or payment required or permitted hereunder shall be in writing and
sent by certified mail, overnight express, or personally delivered, addressed
to
the party to receive the notice as set out below.
-
12
-
13.7 No
Assignment.
Neither party hereto may assign this Agreement, in whole or in part, without
the
prior written consent of the other party (which consent shall not be
unreasonably withheld or delayed), and any attempted assignment not in
accordance herewith shall be null and void and of no force or
effect.
13.8 Binding
Effect.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors, heirs, representatives and
permitted assigns.
13.9
Interpretation.
This Agreement was fully negotiated by both parties hereto and shall not be
construed more strongly against either party hereto regardless of which party
is
responsible for its preparation.
13.10 No
Consequential Damages.
Neither party to this Agreement shall have any liability to the other party
for
any consequential or indirect damages arising out of any breach of this
Agreement, including, without limitation, loss of profit, loss of use or
business stoppage.
13.11
Further
Assurances.
Upon the reasonable request of the other party, each party hereto agrees to
take
any and all actions necessary or appropriate to give effect to the terms set
forth in this Agreement.
-
13
-
IN
WITNESS WHEREOF,
the parties hereto have caused their respective duly authorized representatives
to execute this Agreement as of the day and year first above
written.
| “Mikart” | ||
| MIKART, INC. | ||
| |
|
|
| By: | ||
|
Name:
|
Xxxxxx X. Xxxxxxx
|
|
| Title: | Chairman and CEO | |
-
14
-
EXHIBIT
A
SPECIFICATIONS
