EXHIBIT 10.26
EXECUTION COPY
CONVERSION AND SUPPLY AGREEMENT
CONVERSION AND SUPPLY AGREEMENT (this "Agreement"), dated as
of October 22, 2003 (the "Effective Date") is by and between INTEGRATED
BIOPHARMA, INC., a Delaware corporation, with offices at 000 Xxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000 ("INB") and ALOE COMMODITIES INTERNATIONAL, INC., a
Texas corporation, with offices at 0000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxx 00000 ("Aloe"). INB and Aloe are collectively, the "Parties".
WITNESSETH
WHEREAS, INB develops, manufactures and distributes
biopharmaceutical and nutritional supplements and related products to companies
in the pharmaceutical, biotech and nutraceutical industries (the "Customers");
WHEREAS, INB and Aloe are contemporaneously herewith entering
into an asset purchase agreement dated the date hereof (the "Asset Purchase
Agreement") pursuant to which Aloe is selling the Transferred Assets (as such
term is defined therein) to INB;
WHEREAS, INB wishes to have Aloe convert existing
work-in-process, raw materials and INB inventory into finished goods
constituting the Products (as such term is defined below) from time to time, and
Aloe is agreeable to converting such materials into the Products and supplying
the Products to INB as provided herein;
WHEREAS, INB wishes to have Aloe store certain INB inventory
used in the conversion and supply of the Products on Aloe's premises; and Aloe
has agreed to separately store and segregate such INB inventory in a conspicuous
and locked enclosure on Aloe's premises prior to shipping the finished Products
to INB;
NOW, THEREFORE, in consideration of the foregoing premises,
and the mutual covenants and obligations set forth herein, INB and Aloe hereby
agree as follows:
1. DEFINITIONS. For purposes hereof the following terms shall have the meanings
set forth:
"Affiliates" means any person, firm, corporation (including, without
limitation, service corporation and professional corporation), partnership
(including, without limitation, general partnership, limited partnership and
limited liability partnership), limited liability company, joint venture,
business trust, association or other entity that now or in the future, directly
or indirectly, controls, is controlled by or is under common control with a
party. For purposes of the foregoing, "control" shall mean, with respect to: (a)
a corporation, the ownership, directly or indirectly, of greater than fifty
percent (50%) of the voting power to elect the directors thereof; and (b) any
other entity, managerial control by virtue of a written agreement.
"Confidential Information" means a party's technology, formulations,
processes, data, know-how and other information, whether written or oral,
technical or non-technical, including, without limitation, financial statements,
reports, pricing, trade secrets, secret processes, formulas, customer data
(including customer lists), business information, business methods and plans and
pricing, cost, supplier and manufacturing information, but specifically
excluding any of such items for which the receiving party can show by competent
proof that such item: (a) was known to and existed in documentary or other
physical form in the possession of the receiving party at the time of
disclosure; (b) subsequent to the receipt hereunder, is made available to the
receiving party by a third party which is legally entitled to make such
information available; (c) was or becomes publicly known through no fault of the
receiving party; or (d) is independently developed by the receiving party
without access to Confidential Information disclosed hereunder.
"Conversion Price" means the price to be paid by INB to Aloe for
conversion of the Products as set forth on Exhibit C attached hereto.
"Effective Date" is defined in the first paragraph of this Agreement.
"Indemnified Party" means, collectively, the party entitled to receive
indemnification as provided in this Agreement and such party's Affiliates,
distributors, directors, officers, shareholders, employees, representatives,
agents, sublicensees, successors and assigns.
"Indemnifying Party" means the party required to provide
indemnification as provided in this Agreement.
"Label", "Labeled" or "Labeling" means all labels and other written,
printed or graphic matter upon (i) the Products or any container or wrapper
utilized with the Products or (ii) any written material accompanying the
Products, including without limitation, package inserts.
"Materials" means those items which form an integral and direct part of
the bulk form of the Products and are necessary for its production, as well as
cartons, Labels, and Packaging.
"Packaging" means all primary containers, including cartons, shipping
cases and other like matter used in packaging or accompanying the Products.
"Products" or "Product" means, collectively, the products in such
dosage and quantities as set forth in Exhibit D, manufactured in accordance with
the Product Specifications hereto and any improvements and line extensions
thereto.
"Product Specifications" means the Product Specifications set forth in
Exhibit E hereto.
"Term" means the term of this Agreement as provided in Section 5.1.
"Territory" means the United States of America (including all of its
states, Puerto Rico, the District of Columbia, and all territories and
possessions).
2. CONVERSION AND SUPPLY.
2.1 Supply Obligations; Non-Exclusivity. Aloe shall convert, package and
supply to INB the Products in accordance with the Product Specifications
and the terms hereof. INB and Aloe acknowledge and agree that INB shall
have the right to seek other suppliers or manufacturers of the Products,
in INB's sole discretion.
2.2 Work-in-Process; Raw Materials. Aloe shall first use certain work-in-
process ("Work-in-Process") identified on Exhibit A attached hereto until
such Work-in-Process is fully utilized in producing the Products pursuant
to this Agreement. INB shall supply the raw materials (the "Raw
Materials") set forth in Exhibit B attached hereto to Aloe, and Aloe
shall convert such Raw Materials into the Products, in INB's sole
discretion.
2.3 Product Labeling. INB shall provide trade dress, Labels, Materials
and Packaging for the Products hereunder to Aloe and Aloe shall Label
and Package the Products in accordance with the Product requirements.
2.4 Facility and Records Maintenance; Audit. Aloe shall, at all times,
maintain and operate the manufacturing facility(ies) at which the
Products are manufactured (collectively, the "Facility"), and implement
and maintain such quality control procedures, so as to be able to perform
its obligations hereunder in compliance with all applicable laws. Each
party shall promptly notify the other upon receipt by it of any adverse
notice from any governmental agency relating to the Products, employees,
environmental conditions or the operation of the Facility. Aloe shall
maintain true and complete books and records of all data relating to the
manufacture, supply and sale of the Products to INB. Aloe shall
permit quality assurance representatives of INB and representatives
of applicable regulatory agencies to inspect the Facility and all books
and records of Aloe relating to the production of the Products at all
times upon three (3) business days' prior written notice (except in the
case of emergency), during normal business hours and on a confidential
basis.
2.5 Field Warehouse for INB Inventory.
(a) INB and Aloe agrees to that INB may from time to time store certain INB
inventory at Aloe's premises to facilitate Aloe's manufacture of the
Products. Such INB inventory may include goods owned or hereafter
acquired by INB for use by Aloe in manufacture of the Products, raw
materials, work-in-process, product ormulas, product Labels, Materials,
Packaging or materials used or consumed in the manufacture and supply of
the Products. Such categories of INB inventory are listed on Exhibit F
attached hereto, as amended from time to time (the "Warehoused Goods").
Such Warehoused Goods shall be located in a segregated, locked
enclosure at the following location: 00000 X. Xxxxxxxx Xxxx, Xxxxxxx
Xxxxxx, Xxxxx 00000 and/or 0000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxx 00000. Such enclosure and the Warehoused Goods shall be
conspicuously designated as "Property of Integrated BioPharma, Inc."
(b) Aloe acknowledges that the Warehoused Goods are the property of INB and
that Aloe has temporary custody of such Warehoused Goods on behalf of INB
while manufacturing the Products pursuant to this Agreement. Except for
such custody and possession of the Warehoused Goods, Aloe shall have no
right to possess or use the Warehoused Goods. Aloe shall defend the
Warehoused Goods from the claims and demands of all persons at any time
claiming any interest in the Warehoused Goods adverse to INB.
(c) Aloe shall at its expense keep such Warehoused Goods fully insured with
insurance companies satisfactory to INB against fire, with extended
coverage, including sprinkler loss and against theft. All such policies
shall contain loss payable clauses to INB as its interests may appear.
Aloe shall also add INB as an additional named insured on such policies.
If Aloe fails to maintain such insurance, INB shall have the right to
make such expenditures on behalf of Aloe and Aloe shall reimburse INB for
such cost within thirty (30) calendar days of receipt of reasonable
documentation from INB.
3. PACKAGING, DELIVERY AND ACCEPTANCE.
3.1 Delivery of Products.
(a) From time to time, INB shall send Aloe orders stating the quantity and
types of the Products that INB wishes to have converted by Aloe pursuant
to this Agreement. INB shall deliver the Raw Materials for the Products
to Aloe.
(b) INB shall provide Aloe with appropriate instructions for each shipment
of the Products to be shipped by Aloe to INB pursuant to a particular
order, designating the carrier, destination, method of transport and
insurance requirements. All Products supplied under this Agreement
shall be shipped F.O.B. Aloe's dock/shipping destination, as may be
designated by INB in the applicable order. INB shall arrange and pay for
all freight, insurance charges, taxes, import and export duties,
inspection fees and other charges applicable to the conversion and
transport of the Products delivered to INB hereunder. Risk of loss and
damages to the Products supplied by Aloe to INB shall pass to INB
upon loading of such Products onto an INB-scheduled truck or
transporter at Aloe's dock. All of the Products shall be Packaged,
Labeled and marked in accordance with the Product Specifications
and INB's instructions, and Aloe shall ship the Products under
appropriate storage conditions and in accordance with INB order forms.
An itemized packing list shall accompany each shipment.
(c) Aloe shall convert the Raw Materials and ship the Products within fifteen
(15) business days of receipt by Aloe of the Raw Materials.
(d) Quality Control Measures.
(i) Prior to shipment of the Products, Aloe shall fax to the INB Quality
Control Director a Certificate of Analysis ("C/A") certifying that
the products being shipped meet the applicable Product
Specifications;
(ii) On the date of production for each lot of Products, Aloe shall
deliver to the INB Quality Control Director for inspection and
analysis, a sample of the Products taken from the beginning, middle
and end of each lot.
3.2 Acceptance and Rejection.
(a) If a shipment of the Products or any portion thereof fails to
conform to the Product Specifications, then INB shall have the right to
reject such nonconforming shipment of the Products or the its rejection
hereunder, within thirty (30) days after INB's receipt of such shipment,
specifying the grounds for such rejection; provided, however, that in
the event such defect is latent or was not obvious and could not be
readily discovered from a physical inspection of the Products' shipment,
INB may give written notice to Aloe of its rejection of such shipment
within thirty (30) calendar days after INB's discovery of such
non-conformance, specifying the grounds for such rejection. The
non-conforming shipment of Products, or the non-conforming portion
thereof, shall be held for Aloe's disposition, or shall be returned to
Aloe, in each case at Aloe's expense, as directed by Aloe. Aloe
shall use its commercially reasonable efforts to replace the
non-conforming shipment of Products, or the non-conforming portion
thereof, with conforming Products as soon as reasonably practicable
after receipt of notice of rejection thereof, and in any event will do
so within forty-five (45) days after receipt of notice of rejection
thereof at no cost to INB.
(b) In the event of a conflict regarding any nonconforming Product which Aloe
and INB are unable to resolve, a sample of such Product, together with
mutually agreed upon questions, shall be submitted by INB to a
qualified independent laboratory reasonably acceptable to both
parties for testing against the Product Specifications and the test
results ("Test Results") obtained by such laboratory shall be final
and binding upon the parties hereto. The fees and expenses of such
aboratory testing, and all additional shipping and transportation
costs incurred as a result of the dispute, shall be borne entirely by
the party against whom such laboratory's findings are made. In the
event the Test Results indicate that the Product in question does not
conform to the Product Specifications, Aloe shall replace such Product
with conforming Product in accordance with this Section 3.2.
3.3 Product Recall.
(a) In the event of any recall of the Products arising out of, relating
to, or occurring as a result of, any act or omission by, Aloe, Aloe
shall, at the election of INB, either:
(i) replace the amount of Products recalled or seized; or
(ii) give credit to INB against outstanding receivables due from INB
and future shipments of the Products in an amount equal to the
amount paid by INB for the Products so recalled or seized or
otherwise owing by INB hereunder plus reimburse (or, at INB's
option, credit) INB for all transportation costs, if any,
taxes, insurance, handling and out-of-pocket costs incurred by
INB in respect of such recalled or seized Products, and shall
promptly reimburse INB for all third party costs and expenses
incurred by INB in connection with such recall.
(iii)indemnify and save INB harmless from and against any and all
damages to or claims by third parties associated with or
resulting from any such recall.
(b) In the event of any recall or seizure of the Products arising out of,
relating to or occurring as a result of any act or omission of INB,
INB shall remain responsible to Aloe for the price of the recalled
Products, shall be solely responsible for any transportation costs,
import duties, if any, taxes, insurance, handling and other costs
incurred by Aloe in respect of such recalled or seized Products, and
shall promptly reimburse Aloe for all third party costs and expenses
incurred by Aloe in connection with such recall.
(c) For purposes of this Section 3.3, "recall" shall mean (i) any action
by INB and/or Aloe to recover title to or possession of the Products
shipped and/or (ii) any decision by INB not to sell or ship the
Products to third parties which would have been subject to recall
if it had been sold or shipped, in each case taken in the good faith
belief that such action was appropriate under the circumstances.
"Seizure" shall mean any action by any government agency to detain or
destroy the Products.
(d) Each party shall keep the other fully informed of any notification or
other information, whether received directly or indirectly, which
might affect the marketability, safety or effectiveness of the
Products, or which might result in liability issues or otherwise
necessitate action on the party of either party, or which might
result in recall or seizure of the Products.
(e) Prior to any reimbursement pursuant to this Section 3.3 the party
claiming reimbursement shall provide the other with reasonably
acceptable documentation of all reimbursable costs and expenses.
4. PRICE AND PAYMENT TERMS.
4.1 Conversion Price; Additional Charges. INB shall pay Aloe for all
Products which are accepted pursuant to Section 3.2 above at an amount
equal to the Conversion Price for such Products. The Conversion Price for
Products supplied using the existing Work-in-Process shall be adjusted
downward by the amount of the value of the Work-in-Process over the value
of the Raw Materials. The Conversion Price includes the shipping,
handling and insurance to be arranged and paid for by Aloe as set forth
in Section 3.1 hereof. Additional charges for storage of the Raw
Materials and shipment are set forth on Exhibit G attached hereto. Aloe
represents that the prices set forth on Exhibit C are the lowest prices
charged by Aloe to supply such Products to private label customers who
sell to the retail class of trade. If Aloe enters into an agreement to
supply such Products to a third party, Aloe covenants that it shall not
charge such third party a price lower than the prices set forth on
Exhibit C.
4.2 Invoicing. Upon shipment of the Products to INB, Aloe shall submit
invoices therefor to INB requesting payment of the Conversion Price for
the Products shipped. INB shall pay each invoice in full within thirty
(30) days after the date the Products covered by the invoice were
received at INB's warehouse. All payments shall be made in U.S. Dollars.
4.3 Sales and Use Taxes. Aloe shall be solely responsible for the payment of
all federal, state or local taxes, use or value-added taxes, excise
or similar charges, or other tax assessments (other than that assessed
against income), assessed or charged on the sale of the Products to INB
pursuant to this Agreement.
5. TERM AND TERMINATION.
5.1 Term. The term of this Agreement shall commence on the Effective
Date and, unless sooner terminated pursuant to Section 5.2 hereof, shall
continue in full force and effect until terminated pursuant to the
provisions of Section 5.2 hereof (the "Term"). This Agreement may be
renewed from time to time and on the terms and conditions as the parties
mutually agree.
5.2 Termination. Prior to the expiration of the Term, this Agreement may be
terminated:
(a) immediately by INB upon delivery of written notice to Aloe;
(b) by either INB or Aloe, upon thirty (30) calendar days prior written
notice if the other party materially breaches any provision of this
Agreement and fails to cure such breach within thirty (30) calendar
days following receipt of written notice from a non-breaching
party specifying the breach to be cured;
(c) in the event either party ceases conducting business in a normal
course, becomes insolvent, makes a general assignment for the
benefit of creditors, suffers or permits the appointment of a
receiver for its business or assets, or avails itself of, or
becomes subject to, any proceeding under the Federal Bankruptcy
Act or any other statute of any state or country relating to
insolvency or the protection of creditor rights, the other party
shall have a right to terminate this Agreement, provided that in the
case of an involuntary bankruptcy proceeding such right to terminate
shall only become effective if the other party consents thereto or
such proceeding is not dismissed within ninety (90) days after
the filing thereof. The parties agree that each party may fully
exercise all of its rights and elections under the U.S. Bankruptcy
Code.
5.3 Post-Termination.
(a) Termination of this Agreement shall not affect any payment
obligations or other liabilities which have accrued as of the date of
such termination, including, without limitation, any damages or
liabilities resulting from a party's breach of its obligations under
this Agreement.
(b) If INB terminates this Agreement in accordance with Section 5.2(a),
Aloe shall ship any existing work-in-process or Warehoused Goods to
INB or take such other action as directed by INB, with such costs
to be paid by INB. If either party terminates this Agreement pursuant
to Section 5.2(b), then the costs of such shipping or handling shall
be borne by the breaching party. If either party terminates this
Agreement pursuant to Section 5.2(c), then the costs of such
shipping, or handling shall be borne by the party seeking bankruptcy
protection.
6. CONFIDENTIALITY OBLIGATIONS.
6.1 General. During the Term of this Agreement and for a period of
[five (5)] years thereafter, each party agrees to treat all Confidential
Information as confidential, to preserve the confidentiality of all
Confidential Information, and not to disclose to third parties or use the
disclosing party's Confidential Information without first obtaining the
written consent of the disclosing party, except as may be otherwise
provided herein. The parties agree to take all necessary steps to ensure
that Confidential Information is securely maintained and to inform those
who are authorized to receive such Confidential Information of their
obligations under this Agreement. The parties agree to use any and all
Confidential Information solely in connection with this Agreement
and for no other use. Upon the termination or expiration of this
Agreement for any reason, the receiving party promptly shall return all
such Confidential Information, and any copies or reproductions thereof,
to the disclosing party and the parties agree to make no further use of
such Confidential Information. All Confidential Information shall remain
the property of the disclosing party.
6.2 Right to Disclose. Nothing herein shall be construed as preventing
either party from disclosing any information received from the other
party to its employees, Affiliates, sublicensees and subcontractors, in
each case where such person or entity has a need to know such information
provided that, with respect to Affiliates, sublicensees and
subcontractors, such entities have undertaken similar obligations of
confidentiality with respect to the Confidential Information. In addition
to the foregoing, nothing contained in this Article shall be construed to
restrict the parties from disclosing Confidential Information as
required: (a) for regulatory, tax or customs reasons; (b) for audit
purposes; or (c) by court order or other government order or request.
With respect to disclosing Confidential Information pursuant to a court
order or other government order or request, prompt notice of such order
or request will be provided to the disclosing party and the
disclosure shall not occur until the disclosing party either approves the
disclosure or has had the opportunity to seek a protective order or other
appropriate remedy to curtail such disclosure. In the event that the
disclosing party is unsuccessful in preventing the disclosure of
Confidential Information to the court or government, the other party
shall take reasonable efforts to protect the confidentiality of the
Confidential Information and shall disclose only that portion of
Confidential Information which it is legally required to disclose.
7. ARBITRATION.
7.1 Binding Arbitration. Except as otherwise provided in this Article 7, all
disputes relating in any way to this Agreement shall be resolved
exclusively through arbitration and settled by a panel of three (3)
arbitrators in Newark, New Jersey, (who shall hold a hearing and make an
award within sixty (60) days of the filing for arbitration). The
arbitrators, who should be experienced in commercial contract disputes in
the pharmaceutical industry, shall be selected and the proceedings and
award conducted in accordance with the Commercial Rules of the American
Arbitration Association then pertaining. The arbitrators, in addition to
any award that they shall make, shall have the discretion to award the
prevailing party the cost of the proceedings together with reasonable
attorneys fees. Any award made hereunder may be docketed in a court of
competent jurisdiction. In the event there are any issues which are not
arbitrable as a matter of law, and as a condition precedent to a Court
making a determination of any non arbitrable issues, any issues which may
be arbitrated shall first be determined by arbitration pursuant to this
section. The losing party shall pay all legal fees and costs of the
arbitration.
7.2 Equitable Relief. Notwithstanding anything contained in this Agreement
to the contrary, the parties shall be entitled to seek injunctive or
other equitable relief whenever the facts or circumstances would permit a
party to seek such equitable relief in a court of competent jurisdiction.
8. MISCELLANEOUS.
8.1 Relationship of the Parties. Aloe shall at all times be deemed to be an
independent contractor, solely responsible for the manner by and the form
in which it performs this Agreement. Nothing contained in this Agreement
shall be construed as creating a partnership, joint venture or any other
type of relationship between Aloe and INB, other than that of buyer
and seller of goods. Neither party shall have the authority or obligate
represent itself as having the authority to bind or obligate, the other
party in any manner whatsoever.
8.2 Binding Nature and Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors
and assigns. Neither party shall, without the prior written consent
(not to be unreasonably withheld or delayed) of the other party having
been obtained, assign or transfer this Agreement to any person; (b)
INB may assign or transfer this Agreement to any Affiliate or to any
successor by merger of such party of its pharmaceutical business or
upon a sale of substantially all of a party's assets or the assets
of its pharmaceutical business, without the prior written consent of
Aloe; and (c) in the case of an assignment to an Affiliate of a party,
the Affiliate shall in writing assume all the rights and obligations of
the transferor under this Agreement. No permitted assignment of this
Agreement or any rights hereunder shall relieve the assigning party of
any of its obligations hereunder.
8.3 Force Majeure. If either party is prevented from complying, either
totally or in part, with any of the terms or provisions set forth
herein with respect to any of the Products by reason of force majeure
including, by way of example and not of limitation, fire, flood,
electrical failure, explosion, storm, strike, lockout or other labor
dispute, riot, war, rebellion, accidents, acts of God, acts of
terrorism, acts of governmental agencies or instrumentalities, said party
shall provide written notice of same to the other party. Said notice
shall be provided within five (5) business days of the occurrence of
such event and shall identify the requirements of this Agreement or
such of its obligations as may be affected, and to the extent so
affected, said obligations shall be suspended during the period of
such disability. The party prevented from performing hereunder shall
use reasonable good faith efforts to remove such disability, and
shall continue performance whenever such causes are removed. The party
so affected shall give to the other party a good faith estimate of
the continuing effect of the force majeure condition and the
duration of the affected party's non-performance. When such circumstances
arise, the party shall discuss what, if any, modification of the terms
of this Agreement may be required in order to arrive at an equitable
solution. Notwithstanding the foregoing, if the period of any previous
actual non-performance of a party because of force majeure conditions
plus the anticipated future period of non-performance because of such
conditions will exceed an aggregate of [seventy-five (75)] days, then
the party unaffected by such event may terminate this Agreement by not
less than thirty (30) days written notice of termination to the other
party.
8.4 Notices. Any notice required or permitted to be given under this
Agreement shall be made in writing, and shall be effective when mailed,
by registered or certified mail as follows:
INB: Integrated BioPharma, Inc.
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Chief Executive Officer
Copy to: St. Xxxx & Xxxxx, LLC
Xxx Xxxx Xxxxx Xxxx
Xxxxxx, Xxx Xxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Aloe: Aloe Commodities International, Inc.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: L. Xxxxx XxXxxxxx, President
Copy to: Vial, Hamilton, Xxxx & Xxxx, L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxx X. Xxxxxx, Esq.
Any party may change said address by notice to the other parties in
accordance with the terms hereof.
8.5 Press Releases and Announcements. Neither Party shall issue any press
release or public announcement relating to the subject matter of this
Agreement without the prior written consent of the other Party;
provided, however, that either Party may make any public disclosure it
believes in good faith is required by applicable law, regulation or
national exchange rule (in which case the disclosing Party shall use
reasonable efforts to advise the other Party and provide it with a copy
of the proposed disclosure prior to making such disclosure).
8.6 Entire Agreement; Amendment. This Agreement, including the exhibits and
schedules hereto, shall constitute the entire agreement between the
Parties with respect to the subject matter hereof and shall supersede
all previous negotiations, commitments and writings. The Parties hereto
may, by mutual consent, amend or modify and supplement this Agreement in
such manner as may be agreed upon in writing.
8.7 Captions. The captions and heading contained herein are solely for
convenience of reference and will not affect the interpretation of any
provision hereof.
8.8 Waiver, Discharge, etc. This Agreement may not be released, discharged
or modified except by an instrument in writing signed on behalf of each
of the Parties. The failure of a party to enforce any provision of this
Agreement shall not be deemed a waiver by such party of any other
provision or subsequent breach of the same or any other obligation
hereunder.
8.9 Governing Law. This Agreement shall be construed and the rights of the
Parties hereunder shall be governed by laws of the State of New Jersey.
Venue for any dispute regarding this Agreement shall be in a court of
competent jurisdiction in Union County, New Jersey (excluding any
conflict of laws provisions of the State of New Jersey that would refer
to and apply the substantive laws of another jurisdiction).
8.10 Counterparts and Facsimile Signatures. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an
original, but all of which shall constitute one Agreement. This
Agreement may be executed by facsimile signature.
8.11 Severability. Any portion of this Agreement which a court of competent
jurisdiction shall determine to be void or unenforceable against public
policy, or for any other reason, shall be deemed to be severable from
this Agreement and shall have no effect on the other covenants or
provisions in this Agreement. It is agreed that the court shall be
empowered to reform and construe any provision that would otherwise be
void or unenforceable in a manner that will be valid and enforceable to
the maximum extent permitted by law.
8.12 Attorneys' Fees. In the event that any action or proceeding is
brought in connection with this Agreement, the prevailing party
therein shall be entitled to recover its costs and reasonable attorney's
fees.
8.13 Survival. Notwithstanding anything to the contrary contained in this
Agreement, the provisions of Sections 2.5, 3.3, 4.3, 5.3, 6 and 7 shall
survive any termination of this Agreement.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this
agreement to be executed as of the Effective Date by their duly authorized
representatives.
INTEGRATED BIOPHARMA, INC.
By: /s/ E. Xxxxxx Xxx
---------------------
Name: E. Xxxxxx Xxx
Title: Chief Executive Officer
ALOE COMMODITIES INTERNATIONAL, INC.
By: /s/ L. Xxxxx XxXxxxxx
-------------------------
Name: L. Xxxxx XxXxxxxx
Title: Chairman & CEO
Exhibit A. Work-in-Process
(to be attached)
Exhibit B. Raw Materials
All Raw Materials necessary to produce the following products,
including packaging and labeling.
1. Naturally Noni(TM) , 32 ounce bottle.
2. Naturally Aloe(TM), Gallon size.
3. Naturally Aloe(TM), Quart square.
4. Naturally Aloe(TM), Quart round.
5. Avera(R) Sport Crunch
6. Avera(R) Sport Creatine Gel Pouch, 2 ounce package.
7. Avera(R) Sport Liquid Heat.
8. Avera(R) Sport Creatine Serum
Exhibit C. Conversion Price for the Products
MINIMUM CONVERSION PRICE
PRODUCT QUANTITY (FILLING CHARGE)
------- -------- ----------------
1. Naturally Noni(TM)-32 ounce bottle 10,000 $.85 per unit
2. Naturally Aloe(TM)--Gallon Size 5,000 $.75 per unit
3. Naturally Aloe(TM)-Quart Square 5,000 $.48 per unit
4. Naturally Aloe(TM)-Quart Round 5,000 $.45 per unit
5. Avera(R)Sport Crunch 4,500 $.18 per unit
6. Avera(R)Sport Creatine Pouch 11,000 $.05 per unit
7. Avera(R)Sport Liquid Heat 5,000 $.45 per unit
8. Avera(R)Sport Creatine Serum 5,000 $.45 per unit
Exhibit D. The Products
1. Naturally Noni(TM), 32 ounce bottle.
2. Naturally Aloe(TM), Gallon size.
3. Naturally Aloe(TM), Quart square.
4. Naturally Aloe(TM), Quart round.
5. Avera(R) Sport Crunch
6. Avera(R) Sport Creatine Gel Pouch, 2 ounce package.
7. Avera(R) Sport Liquid Heat.
8. Avera(R) Sport Creatine Serum.
Exhibit E. Product Specifications
[To be attached]
Exhibit F. Warehoused Goods
(to be attached)
Exhibit G. Additional Charges
1. Receiving of Raw Materials and Components: $3.00 per pallet upon arrival at
Aloe Commodities International, Inc. ("ACII") dock.
2. Storage of Raw Materials, Components & Finished Goods in ACII warehouse:
$6.00 per pallet per month for raw materials, components and finished goods
stored at the ACII warehouse for 30 or more days, including: (i) finished goods
produced by ACII and stored for 30 or more days from the date of production;
(ii) raw materials and components shipped by INB to ACII more than 30 days prior
to an ACII scheduled production date; provided, however, that if ACII extends a
production date beyond the original scheduled production date which results in
the raw materials, components or resulting finished goods to be stored 30 or
more days, then no storage charge will be incurred by INB with respect to such
stored raw materials, components or goods.
3. Shipping of Finished Goods per INB instructions in pallet quantities: $3.00
per pallet.
- ACII to ship the finished goods to INB's New Jersey warehouse or to INB's
customers as specified by INB in the applicable invoice using palletized
orders through a freight company acceptable to INB.
- ACII agrees to use "Grade A" pallets for goods to be shipped to INB
customers. All other shipments of goods may be shipped using pallets which
are in good and usable condition.
- All freight arrangements are to be made by INB and billed to INB directly by
shipper.
4. Storage of Avera(R) Sport Crunch product:
- INB will store the Avera(R) Sport Crunch finished product in a cool warehouse
located in New Jersey and pay for applicable storage costs. - INB to store the
juices and raw materials used to produce the Avera(R) Sport Crunch, Noni juice,
blueberry concentrate, pear concentrate, grape concentrate and raw Noni
concentrate at the United States Cold Storage facility located at 0000 Xxxxxxx,
Xxxxxx, Xxxxx 00000 (Tel: 000-000-0000), and pay for applicable storage costs.
