EXHIBIT 99.1
*** Indicates omitted material that is the subject of a confidential
request filed separately with the Commission.
TRADEMARK LICENSE AND SUPPLY AGREEMENT
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THIS TRADEMARK LICENSE AND SUPPLY AGREEMENT (this "Supply Agreement")
is dated this 25th day of January 2007 (the "Effective Date") and is between
▇▇▇▇▇▇▇▇▇▇ LABORATORIES, INC. ("▇▇▇▇▇▇▇▇▇▇"), a Texas corporation with its
principal place of business located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, and MANNATECH, INCORPORATED ("MANNATECH"), a Texas corporation
with its principal place of business located at ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. Collectively, ▇▇▇▇▇▇▇▇▇▇ AND MANNATECH are
hereinafter referred to as "Parties."
Recitals
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WHEREAS, ▇▇▇▇▇▇▇▇▇▇ desires to sell to MANNATECH and MANNATECH desires
to purchase from ▇▇▇▇▇▇▇▇▇▇, a bulk aloe ▇▇▇▇ mucilaginous polysaccharide
(hereinafter referred to under the product name of "Manapol[R] powder") in
quantities, at the price and upon the terms and conditions set forth herein;
and
WHEREAS, ▇▇▇▇▇▇▇▇▇▇ claims the ownership of the trademark Manapol[R];
WHEREAS, MANNATECH is desirous of obtaining from ▇▇▇▇▇▇▇▇▇▇, and
▇▇▇▇▇▇▇▇▇▇ is willing to grant to MANNATECH, a license to use the product
name Manapol[R] powder (the "▇▇▇▇") in connection with the advertising and
sale of products manufactured by or for MANNATECH that contain Manapol[R]
(herein the "Manufactured Products");
WHEREAS, ▇▇▇▇▇▇▇▇▇▇ and MANNATECH are mutually desirous of insuring the
consistent quality of all products sold in connection with the ▇▇▇▇; and
WHEREAS, the Parties desire to memorialize in this Agreement the
arrangement between the Parties pursuant to which MANNATECH shall purchase
Manapol[R] powder directly from ▇▇▇▇▇▇▇▇▇▇ at the prices set forth herein
for the exclusive purpose of manufacturing the Manufactured Products.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements contained herein, the Parties hereto agree as follows.
Agreement
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1. Term.
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The term of this Supply Agreement shall be for a period of thirty six
(36) months from December 31, 2006 to December 31, 2009 (the "Term")
unless further extended or sooner terminated as provided herein. The
Term may be extended by the Parties for an additional one (1) year
period (the "Extension Period"), provided that, at least sixty (60)
days prior to the end of the Term, the Parties mutually agree in
writing on the quantity and price of Manapol[R] powder to be sold by
▇▇▇▇▇▇▇▇▇▇ and purchased by MANNATECH hereunder during such Extension
Period. At least one hundred and twenty (120) days prior to the end of
the Term, the Parties shall commence good faith negotiations to
determine and agree upon the quantity and price of Manapol[R] powder to
be purchased for the Extension Period. If the Parties are unable to so
agree on the quantity and price, this Supply Agreement shall terminate
effective at the end of the initial Term. Nothing contained in this
Paragraph 1 shall be deemed to (i) obligate the Parties to agree upon
the quantity and price; (ii) obligate a party to negotiate with the
other party regarding the quantity or price if the other party is then
in default under this Supply Agreement or the License Agreement; or
(iii) limit the rights of either party under Paragraph 14 herein.
2. Sale and Purchase.
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2.1 Subject to the terms and conditions of this Supply Agreement,
▇▇▇▇▇▇▇▇▇▇ shall sell to MANNATECH and MANNATECH shall purchase
from ▇▇▇▇▇▇▇▇▇▇, not less than *** kilograms of Manapol[R] per
month during the first twenty-four (24) months of the Term. With
respect to the final twelve 12 month period of the Term, the
Parties shall commence negotiations regarding the volume
commitment no later than ninety (90) days prior to the end of the
first twenty-four (24) months of the Term. Further, the Parties
acknowledge and agree that any purchase by Mannatech from
▇▇▇▇▇▇▇▇▇▇ of Manapol[R] powder or other aloe based bulk raw
material product shall satisfy the volume purchase commitments set
forth in this Supply Agreement.
2.2 In the event that MANNATECH reasonably anticipates that it shall
require more than 115 kilograms more Manapol[R] powder than its
prior monthly order, ▇▇▇▇▇▇▇▇▇▇ will exert commercially reasonable
efforts to deliver such order; however, ▇▇▇▇▇▇▇▇▇▇ shall
guarantee delivery of such increase if MANNATECH provides
▇▇▇▇▇▇▇▇▇▇ at least ninety (90) days' prior written notice
thereof.
2.3 MANNATECH agrees that all Manapol[R] powder shall be used only as
an additive in human or animal health food products (in capsule,
powder, tablet, liquid, gel, lotion or cream form) manufactured by
or for MANNATECH and intended for sale to the ultimate consumer in
the United States or any other of MANNATECH'S countries of
operation set forth in either Paragraph 7 or Exhibit A, which is
attached hereto and incorporated by reference herein, of this
Supply Agreement.
2.4 MANNATECH shall not combine Manapol[R] powder with any product or
substance in any manner which would violate any laws, rules or
regulations of any state, federal or other governmental body in
which the Manufactured Products are sold. MANNATECH shall not
combine Manapol[R] powder with any other substance in a
Manufactured Product that is to be advertised or sold for use or
consumption by humans or animals if the approval of the U.S. Food
and Drug Administration (the "FDA") or the U.S. Department of
Agriculture ("USDA") for such use or consumption is required and
has not been obtained.
2.5 Beginning on the first day of the Term, unless otherwise specified
by the Parties and except as provided for in section 4 herein,
MANNATECH agrees to purchase directly from ▇▇▇▇▇▇▇▇▇▇ all
quantities of Manapol[R] powder required to manufacture the
Manufactured Products. ▇▇▇▇▇▇▇▇▇▇ agrees that all purchases of
Manapol[R] powder by MANNATECH pursuant to this Supply Agreement
shall be credited on a monthly basis against any minimum purchase
requirements by MANNATECH as set forth in this Supply Agreement.
2.6 ▇▇▇▇▇▇▇▇▇▇ shall, as an inventory buffer to account for increased
demand, maintain a safety stock level of Manapol[R] powder in an
amount equal to twenty-five percent (25%) of the minimum monthly
requirement set forth in Paragraphs 2.1 and 4 herein. This
inventory buffer must be replenished so that the Manapol[R] powder
inventory is maintained in the U.S. at this pre-determined safety
stock level throughout the Term of this Supply Agreement.
Notwithstanding the foregoing, MANNATECH shall have no liability
or other responsibility whatsoever for loss or damage incurred by
▇▇▇▇▇▇▇▇▇▇ with respect to inventory maintenance decisions,
including but not limited to loss or damage which may result from
changes in marketing or sales plans, projections, or the non-
binding forecast as described in Paragraph 3, below.
2.7 All sales to MANNATECH under this Supply Agreement shall be
subject to payment terms of 1% - 10 days, net 30 days. The cash
discount of 1% is allowed on invoices paid within ten (10) days of
date of invoice. Where cash discount for prompt payment is not
taken, the net total amount of invoice is due 30 days from date of
invoice.
3. Forecast.
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Subject to Paragraphs 2.1 and 4, for each calendar month during the
Term, MANNATECH shall provide ▇▇▇▇▇▇▇▇▇▇ with a non-binding twelve (12)
month rolling forecast of the minimum and target aggregate quantities
of Manapol[R] powder (the "Forecast"). The first Forecast shall be
provided by MANNATECH no later than the first day of the Term, with
subsequent Forecast updates due on or before the fifteenth (15th) of
each month thereafter throughout the Term (including any extension
period). The Parties acknowledge and agree that the Forecast is for
the sole purpose of permitting the Parties to plan scale-up activities
and future purchases of Manapol[R] powder and shall not constitute an
obligation of MANNATECH to purchase the quantities of Manapol[R] powder
indicated in any Forecast.
4. Pricing.
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The price per kilogram payable by MANNATECH to ▇▇▇▇▇▇▇▇▇▇ for
Manapol[R] powder shall be based on a twelve month schedule and subject
to a minimum monthly quantity of Manapol[R] powder purchased by
MANNATECH during a calendar month and shall be as set forth under the
terms of this Supply Agreement. The Parties agree that the quantity of
2006 purchases of Manapol [R] powder made subsequent to November 17,
2006 which exceed 900 kilograms in the aggregate shall reduce the
aggregate minimum guaranteed purchase quantity for 2007 according to
the mutually agreed-upon schedule as set forth in Exhibit B, which is
attached hereto and incorporated by reference herein.
MANNATECH, shall bear all, insurance and similar costs, and all
sales taxes, with respect to such purchases. The purchase price of
Manapol[R] powder, together with all related freight, insurance and
similar costs, and sales taxes, shall be paid by MANNATECH as
appropriate to ▇▇▇▇▇▇▇▇▇▇, subject to Section 2.7, within thirty (30)
days after the date of invoice
5. Orders; Deliveries.
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MANNATECH shall instruct ▇▇▇▇▇▇▇▇▇▇ from time to time during the Term,
by placing a purchase order with ▇▇▇▇▇▇▇▇▇▇ reasonably in advance of
the date it desires Manapol[R] powder to be delivered to it hereunder,
as to (a) the quantities of Manapol[R] powder to be delivered (b) the
specific date of delivery, (c) the specific location of delivery and
(d) the particular carrier or particular type of carrier for such
delivery. In no event shall ▇▇▇▇▇▇▇▇▇▇ be required to deliver to
MANNATECH in any consecutive three-month period a quantity of
Manapol[R] powder in excess of 125% of the maximum delivery requirement
for such period set forth in the non-binding Forecast for such period
accepted by ▇▇▇▇▇▇▇▇▇▇. The quantities of Manapol[R] powder ordered
pursuant to this Supply Agreement from time to time shall be spaced in
a reasonable manner. Deliveries of Manapol[R] powder shall be made by
▇▇▇▇▇▇▇▇▇▇ under normal trade conditions in the usual and customary
manner being utilized by ▇▇▇▇▇▇▇▇▇▇ at the time and location(s) for the
particular delivery. The Manapol[R] powder delivered hereunder shall
be packaged in five (5) kilogram containers. All deliveries of
Manapol[R] powder hereunder shall be made by ▇▇▇▇▇▇▇▇▇▇, delivered
duty paid, to MANNATECH, Coppell, TX; all other destinations Ex Works,
Irving, TX (Incoterms 2000). The Parties agree that retained samples
of the Manapol[R] powder will be provided to MANNATECH for testing on a
mutually agreeable basis.
6. Exclusivity.
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6.1 MANNATECH agrees that any purchases of Manapol[R] powder from
▇▇▇▇▇▇▇▇▇▇ pursuant to the terms of this Supply Agreement shall be
used exclusively in connection with the production of the
Manufactured Products by or for MANNATECH. Without limitation,
MANNATECH agrees that it shall not sell Manapol[R] powder
purchased pursuant to the terms of this Supply Agreement in bulk
or otherwise, or use any purchases of Manapol[R] powder purchased
pursuant to the terms of this Supply Agreement in connection with
the production of products on behalf of any other party.
6.2 ▇▇▇▇▇▇▇▇▇▇ and MANNATECH agree that the Supply Agreement shall be
exclusive to the extent that ▇▇▇▇▇▇▇▇▇▇ may not sell or distribute
Manapol[R] powder or other Manapol[R] products in bulk or
wholesale form for sale or otherwise, to anyone whom MANNATECH has
by written notice to ▇▇▇▇▇▇▇▇▇▇ identified as (and who is), an
independent Associate of MANNATECH ("Associate"), or whom
▇▇▇▇▇▇▇▇▇▇ knows or should have known to be an Associate of
MANNATECH. For the purposes of this Agreement, an Associate is an
individual or business entity which has been assigned a MANNATECH
account number, is bound by MANNATECH'S Associate Agreement and
the terms and conditions related thereto, and which has placed at
least one order for MANNATECH products during the prior twelve
(12) month period. For purposes of this Paragraph 6.2 and its
Subparagraphs, the words "bulk" or "wholesale" shall refer only to
a sale of one (1) kilogram or more of Manapol[R] raw material.
6.2.1 For a period of at least five (5) years from the date of
shipment (or for such longer period if requested by MANNATECH),
▇▇▇▇▇▇▇▇▇▇ agrees to keep complete records of the manufacture
and storage for, and the shipment, and sale of the Manapol[R]
powder to, MANNATECH and, upon ten (10) days' prior written
request by MANNATECH, to make these records available to
MANNATECH for its review and inspection.
6.2.2 ▇▇▇▇▇▇▇▇▇▇ agrees to discontinue making bulk or wholesale
sales or distributions of Manapol[R] raw material to any
Associate within thirty (30) days after receipt of written
notice from MANNATECH identifying such Associate. If ▇▇▇▇▇▇▇▇▇▇
fails to comply with such notice and/or otherwise continues
to violate this provision, MANNATECH shall have the right to
terminate this Supply Agreement and such termination shall be
effective upon receipt by ▇▇▇▇▇▇▇▇▇▇.
7. Trademark License.
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7.1 Grant of License; Use of ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇ hereby grants to MANNATECH the non-transferable, non-
exclusive right and royalty-free license to use the ▇▇▇▇ in connection
with the labeling, advertising and sale of the Manufactured Products
sold by MANNATECH during the Term of this Supply Agreement. During the
Term of this Supply Agreement, MANNATECH shall have (a) the non-
exclusive right to use the ▇▇▇▇ in connection with the Manufactured
Products that are intended for sale to the ultimate consumer in the
United States, Canada, Mexico, and South Africa; and (b) the non-
exclusive right to use the ▇▇▇▇ in connection with the Manufactured
Products that are intended for sale to the ultimate consumer in places
other than the United States, Canada, Mexico, and South Africa that are
specifically and mutually agreed upon from time to time and listed in
Exhibit A hereto. The countries in Exhibit A may be removed by
▇▇▇▇▇▇▇▇▇▇ upon ninety (90) days' prior written notice from ▇▇▇▇▇▇▇▇▇▇
to MANNATECH that an exclusive Trademark License Agreement has been
executed for that country. In that event, MANNATECH shall no longer
be allowed to use the ▇▇▇▇ within the country removed by ▇▇▇▇▇▇▇▇▇▇
after its existing supplies have been exhausted. Relative to Japan,
MANNATECH may use the ▇▇▇▇ on a non-exclusive basis under the same
conditions as those countries listed in this Paragraph 7.1 and Exhibit
A except that no drink may be sold using Manapol[R] powder or the ▇▇▇▇
in Japan.
7.1.1 MANNATECH shall not have the right to grant sublicenses
without the written permission of ▇▇▇▇▇▇▇▇▇▇ with respect to
the license granted herein; however, MANNATECH may engage a
third party to make and affix labels for the Manufactured
Products in compliance with this Supply Agreement and/or to
distribute and sell the Manufactured Products in compliance
with the terms and conditions of this Supply Agreement, in
which event MANNATECH will be expressly obligated to ensure
full compliance by such third parties with all terms and
conditions of this Supply Agreement.
7.1.2 MANNATECH shall not represent in any manner that it owns
any right, title or interest in or to the ▇▇▇▇. MANNATECH
acknowledges that its use of the ▇▇▇▇ shall inure to the
benefit of ▇▇▇▇▇▇▇▇▇▇ and shall not create in MANNATECH'S favor
any right, title or interest in or to the ▇▇▇▇.
7.1.3 Upon the expiration or termination of this Agreement,
MANNATECH will cease and desist from all use of the ▇▇▇▇ in any
manner and will not adopt or use, without ▇▇▇▇▇▇▇▇▇▇'▇ prior
written consent, any work or ▇▇▇▇ which is confusingly or
deceptively similar to the ▇▇▇▇, except that MANNATECH may
continue to use the ▇▇▇▇ under the terms and conditions of this
Supply Agreement in connection with any remaining supplies of
Manapol[R] powder for the lesser of (a) a period of ninety (90)
days from the date of such expiration or termination; or (b)
until such supplies are exhausted by MANNATECH.
7.1.4 The Manufactured Products shall be manufactured, packaged,
labeled, advertised, marketed and sold in compliance with (i)
the Federal Food, Drug and Cosmetic Act and the rules and
regulations promulgated thereunder, if sold for use within the
United States, and (ii) all other applicable laws, rules and
regulations if sold for use outside the United States.
7.1.5 MANNATECH shall not use the ▇▇▇▇ except as specifically set
forth herein. Without limiting the generality of the preceding
sentence, MANNATECH shall not use the ▇▇▇▇ in connection with
the sale or advertising of any products other than the
Manufactured Products. Any use of the trademark, "Manapol[R],"
pursuant to this Supply Agreement is non-exclusive. Whenever
the Licensee uses the trademark, "Manapol[R]," it shall take
all reasonable measures to assure that there is no confusion of
ownership of the ▇▇▇▇ or the substance which it identifies.
7.1.6 ▇▇▇▇▇▇▇▇▇▇ shall not acquire any right under this Agreement
to use, and shall not use, the name "Mannatech[TM],"
"Mannatech[TM], Incorporated," or "Ambrotose[R]" (either alone
or in conjunction with or as a part of any other word or name)
or any other trademarks, trade names, service marks, fanciful
characters or designs of MANNATECH or any of its affiliates in
any advertising, publicity or promotion or other materials or
uses, or to express or imply any endorsement of ▇▇▇▇▇▇▇▇▇▇'▇
products or services, or in any manner or for any purpose
whatsoever, without the prior written consent of MANNATECH
expressly authorizing such use. The provisions of this
Subparagraph shall survive termination or expiration of this
Supply Agreement or any determination that this Supply
Agreement or any portion of it is void or voidable.
7.1.7 At ▇▇▇▇▇▇▇▇▇▇'▇ request and sole discretion, option and
expense, MANNATECH shall take whatever action is reasonably
necessary to assist ▇▇▇▇▇▇▇▇▇▇ or its assigns in perfecting,
protecting or enforcing ▇▇▇▇▇▇▇▇▇▇'▇ rights in and to the ▇▇▇▇.
MANNATECH understands that ▇▇▇▇▇▇▇▇▇▇ or its assigns may rely
solely on MANNATECH'S use of the ▇▇▇▇ to maintain registration
with the United States Patent and Trademark Office.
7.2 Labels and Advertising.
7.2.1 All labels and advertising relating to the Manufactured
Products offered in connection with the ▇▇▇▇ must strictly
comply with all applicable rules and regulations of the FDA if
sold for use within the United States, and all other applicable
laws, rules and regulations wherever sold.
7.2.2 If MANNATECH uses the ▇▇▇▇ in its labels, packaging,
advertising and promotional materials for the Manufactured
Products, MANNATECH shall also indicate that such ▇▇▇▇ is the
registered trademark of Licensor and shall take all
commercially reasonable measures to assure that there is no
confusion of ownership of the ▇▇▇▇.
7.2.3 MANNATECH agrees not to make, and to use commercially
reasonable efforts to ensure that its Associates, agents or
distributors do not make any claims regarding any properties or
results relating to Manapol[R] powder or any Manufactured
Product which would violate any applicable law.
7.2.4 MANNATECH shall take all steps reasonably necessary to ensure
that its distributors and any other parties to whom it sells
any of the Manufactured Products for resale do not re-label,
repackage, advertise, sell or attempt to sell Manapol[R] powder
or any of the Manufactured Products in a manner that would
violate this Supply Agreement.
7.2.5 If MANNATECH desires to seek FDA or USDA approval as to any
specific claims with respect to Manapol[R] powder or any
Manufactured Product, MANNATECH herby agrees to (i) notify
▇▇▇▇▇▇▇▇▇▇ of the 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 ▇▇▇▇▇▇▇▇▇▇
copies of all communications or notes to or from the FDA or
USDA, as applicable.
7.2.6 If ▇▇▇▇▇▇▇▇▇▇ so requests and upon sixty (60) business days'
prior written notice from ▇▇▇▇▇▇▇▇▇▇ to MANNATECH, MANNATECH
shall not use any label, advertisement or marketing material
that contains the ▇▇▇▇ unless such label, advertisement or
marketing material has first been submitted to and approved by
▇▇▇▇▇▇▇▇▇▇; provided, however, such approval requirement shall
not apply to any such label, advertisement, or other marketing
material that has been previously approved by ▇▇▇▇▇▇▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇ shall not unreasonably withhold its approval of any
such label, advertisement or marketing material. If ▇▇▇▇▇▇▇▇▇▇
does not notify MANNATECH that ▇▇▇▇▇▇▇▇▇▇ disapproves the
label, advertisement or marketing material within fifteen
(15) days from the date ▇▇▇▇▇▇▇▇▇▇ receives the materials,
then MANNATECH may commence using the materials. However,
▇▇▇▇▇▇▇▇▇▇ may still disapprove such label, advertisement, or
marketing material by notice to MANNATECH, and MANNATECH must
then cease using such materials upon receipt of such notice.
If ▇▇▇▇▇▇▇▇▇▇ disapproves the label, advertisement, or
marketing material after said fifteen (15) days, then
▇▇▇▇▇▇▇▇▇▇ shall reimburse MANNATECH for its actual costs for
producing any unused materials and for any unavoidable
contractual obligations to distribute such materials. MANNATECH
shall not use any labels, advertisement, or marketing material
that ▇▇▇▇▇▇▇▇▇▇ has disapproved.
8. Representations and Warranties; Non-conforming Goods; Quality Control.
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8.1 ▇▇▇▇▇▇▇▇▇▇ warrants and represents to MANNATECH that it has
established procedures for the manufacture and supply of the
Manapol[R] powder and that all Manapol[R] powder sold by ▇▇▇▇▇▇▇▇▇▇
pursuant to this Supply Agreement will:
(i) conform to the quality specifications set forth in Exhibit C
to this Supply Agreement, which is attached hereto and
incorporated by reference herein, and that Manapol[R] powder
is a food supplement under the FDA's rules and regulations;
(ii) have been formulated, manufactured, stored, tested, labeled,
and shipped in accordance with current good manufacturing
practices as promulgated by the FDA and all other applicable
laws and regulations; and
(iii) not be (a) adulterated or misbranded by ▇▇▇▇▇▇▇▇▇▇
within the meaning of the Food, Drug & Cosmetic Act ("FD&C
Act"), (b) an article that may not be introduced into
interstate commerce under the FD&C Act, or (c) an article
that fails to comply with any or all applicable laws and
regulations.
Further, ▇▇▇▇▇▇▇▇▇▇ warrants and represents that its facilities
have been adequately designed, qualified, and maintained and that
it has any and all appropriate licenses, permits, and
authorizations from all applicable federal, state, and local
authorities such that it may carry out its obligations under this
Supply Agreement.
8.2 IF MANNATECH REJECTS IN WHOLE OR IN PART ANY NONCONFORMING
SHIPMENT OF MANAPOL[R] POWDER, MANNATECH SHALL PROVIDE ▇▇▇▇▇▇▇▇▇▇
WRITTEN NOTICE OF SUCH REJECTION NO LATER THAN THIRTY (30) DAYS
AFTER RECEIPT OF SUCH SHIPMENT OF MANAPOL[R] POWDER. UPON SUCH
NOTICE, THE PARTIES AGREE THAT MANNATECH'S EXCLUSIVE REMEDY FOR
BREACH OF ANY WARRANTY HEREUNDER IS, AT MANNATECH'S SOLE OPTION,
EITHER (A) THE DELIVERY BY ▇▇▇▇▇▇▇▇▇▇, AT ITS SOLE EXPENSE, OF
ADDITIONAL QUANTITIES OF CONFORMING MANAPOL[R] POWDER IN REPLACEMENT
OF ANY NON-CONFORMING MANAPOL[R] POWDER; OR (B) THE REFUND OF THE
CONTRACT PRICE FOR THE MANAPOL[R] POWDER COVERED BY THE WARRANTY.
UPON RECEIPT OF NOTICE FROM MANNATECH OF NON-CONFORMING GOODS,
▇▇▇▇▇▇▇▇▇▇ SHALL, WITHIN TWO (2) BUSINESS DAYS, PROVIDE MANNATECH
WITH A DELIVERY SCHEDULE REPRESENTING ▇▇▇▇▇▇▇▇▇▇'▇ BEST ESTIMATE OF
THE DATES BY WHICH IT CAN PROVIDE CONFORMING GOODS. MANNATECH SHALL
HAVE TEN (10) BUSINESS DAYS FOLLOWING RECEIPT OF SUCH DELIVERY
SCHEDULE TO NOTIFY ▇▇▇▇▇▇▇▇▇▇ OF ITS ELECTION TO EITHER ACCEPT THE
DELIVERY SCHEDULE OR ELECT TO RECEIVE A REFUND OF THE CONTRACT PRICE
FOR THE NON-CONFORMING GOODS. IF A REFUND IS ELECTED BY MANNATECH,
PAYMENT IN FULL SHALL BE MADE BY ▇▇▇▇▇▇▇▇▇▇ TO MANNATECH WITHIN 10
DAYS OF ▇▇▇▇▇▇▇▇▇▇'▇ RECEIPT OF MANNATECH'S NOTICE OF ELECTION OF
REFUND. FAILURE BY MANNATECH TO TIMELY RESPOND TO ITS OPTION TO
ELECT A REFUND WILL BE DEEMED ACCEPTANCE OF THE DELIVERY SCHEDULE.
IF ▇▇▇▇▇▇▇▇▇▇ FAILS TO TIMELY SUPPLY THE CONFORMING GOODS IN
ACCORDANCE WITH THE SCHEDULE PROVIDED TO AND ACCEPTED BY MANNATECH
OR IF ▇▇▇▇▇▇▇▇▇▇ FAILS TO TIMELY REMIT ANY REFUND DUE HEREUNDER,
THEN SUCH FAILURE SHALL BE DEEMED A MATERIAL BREACH OF THIS SUPPLY
AGREEMENT AND SHALL BE SUBJECT TO TERMINATION IN ACCORDANCE WITH
PARAGRAPH 16.2.
Shipments of Manapol[R] powder not meeting the applicable quality
specifications may, at ▇▇▇▇▇▇▇▇▇▇'▇ option and expense, be returned
to ▇▇▇▇▇▇▇▇▇▇ or destroyed by MANNATECH. If ▇▇▇▇▇▇▇▇▇▇ is unable to
produce conforming Manapol[R] powder, any sums actually paid
therefore will be promptly refunded within ten (10) days after
MANNATECH'S receipt of such notice.
8.3 EXCEPT AS PROVIDED IN PARAGRAPH 8.1, THERE ARE NO WARRANTIES OR
REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS, AND FITNESS FOR A
PARTICULAR PURPOSE, OR NON-INFRINGEMENT MADE WITH RESPECT TO THE
MANAPOL[R] POWDER TO BE SOLD HEREUNDER, AND NONE SHALL BE IMPLIED BY
LAW.
8.4 Upon providing reasonable advance notice, which in no event shall
be less than five (5) business days, MANNATECH shall have the right
to perform quality inspections, of (a) the premises at which the
Manapol[R] powder or other aloe based products are produced; (b) all
of ▇▇▇▇▇▇▇▇▇▇'▇ facilities and equipment relating to manufacture,
storage and delivery of the Manapol[R] powder and all components
thereof; and (c) the Manapol[R] powder, prior to their shipment to
MANNATECH or its designated manufacturer. MANNATECH may engage the
services of an independent inspection firm, selected in its sole
discretion, to perform such inspections.
9. Insurance.
---------
During the Term (including any extension) of this Supply Agreement,
▇▇▇▇▇▇▇▇▇▇ shall have obtained (prior to commencement) and shall
continuously maintain the insurance coverage described in this
Paragraph at its sole cost and expense. ▇▇▇▇▇▇▇▇▇▇ shall provide to
MANNATECH certificates of insurance evidencing such coverage. Each of
the policies shall include MANNATECH as an additional insured.
▇▇▇▇▇▇▇▇▇▇ will provide MANNATECH with at least thirty (30) days' prior
written notice of renewal, cancellation or any material change in
coverage. ▇▇▇▇▇▇▇▇▇▇ shall notify MANNATECH of all legal actions or
proceedings instituted by or against ▇▇▇▇▇▇▇▇▇▇ reasonably likely to
adversely affect ▇▇▇▇▇▇▇▇▇▇'▇ performance of its obligations under the
Agreement. Failure by ▇▇▇▇▇▇▇▇▇▇ to maintain insurance coverage
according to this Paragraph 9 shall constitute a material breach of
this Supply Agreement. It is understood and agreed that the furnishing
of such insurance certificate will not relieve ▇▇▇▇▇▇▇▇▇▇ of its other
respective obligations under this Supply Agreement. ▇▇▇▇▇▇▇▇▇▇ shall
obtain and maintain product liability coverage in an amount of not less
than Ten Million and Dollars ($10,000,000.00) written on a claims made
basis.
10. Additional Products.
-------------------
▇▇▇▇▇▇▇▇▇▇ and MANNATECH hereby agree in good faith to conduct future
negotiations regarding the supply by ▇▇▇▇▇▇▇▇▇▇ to MANNATECH of
additional bulk raw material or finished products.
11. Additional Parties.
------------------
▇▇▇▇▇▇▇▇▇▇ and MANNATECH agree that if additional parties are added to
this Supply Agreement, including but not limited to contract
manufacturing vendors of MANNATECH, such additional parties will be
subject to all of the same terms and conditions of this Supply
Agreement.
12. Confidential Information.
------------------------
12.1 Each party may find it beneficial to disclose to the other party
certain information which may include, but is not limited to, (a)
patents and patent applications, (b) trade secrets, (c)
copyrighted information, and/or (d) proprietary information, which
may include but is not limited to discoveries, ideas, techniques,
concepts, know-how, techniques, designs, specifications, drawings,
maps, blueprints, diagrams, flow charts, information concerning
research and development, and/or other technical, financial or
business information. Such information, which may be provided in
written, encoded, graphic, or other tangible form shall be deemed
to be confidential and proprietary if it is clearly marked
"confidential." If the information is provided orally, it shall
be deemed to be confidential and proprietary if it is so
identified by the disclosing party at the time of such disclosure.
Either party may confirm, within five (5) days of making oral
confidential statements, that such information was confidential
and proprietary. The information disclosed as set forth above
shall be deemed "Confidential Information."
12.2 ▇▇▇▇▇▇▇▇▇▇ recognizes and acknowledges that MANNATECH'S trade
name(s), trademarks, copyrights, patents, marketing plans,
identity of and related information regarding its Associates,
product formulations and other proprietary product information and
any information relating to the management and/or operations of
MANNATECH are valuable, proprietary assets belonging to MANNATECH
and as such are the sole property and may constitute trade secrets
of MANNATECH. ▇▇▇▇▇▇▇▇▇▇ specifically agrees that it will not
at any time, during or after the performance of the Supply
Agreement, in any manner, either directly or indirectly, use,
divulge, disclose, or communicate to any person, firm or
corporation, any Confidential Information of any kind, nature, or
description concerning any matters affecting or relating to the
business of MANNATECH. For the avoidance of doubt, MANNATECH'S
Confidential Information includes but is not limited to:
MANNATECH genealogies (being the information held by MANNATECH or
by any current or former Associate of MANNATECH related to its
Associates including without limitation its relationship with each
of its Associates, the Associate's name, upline and downline,
charts, data reports, proprietary product information which may
from time-to-time be made known to ▇▇▇▇▇▇▇▇▇▇, the names or
practices of any of MANNATECH'S customers or Associates;
MANNATECH'S marketing methods and related data; the names of
MANNATECH'S vendors or suppliers; costs of materials; costs of its
products generally, the prices MANNATECH obtains or has obtained
or at which it sells or has sold its products or services;
manufacturing and sales costs; lists or other written records used
in MANNATECH's business; compensation paid to its Associates,
details of training methods, new products or new uses for old
products, merchandising or sales techniques, contracts and
licenses, business systems, computer programs, or any other
confidential information of, about, or concerning the business of
MANNATECH; its manner of operation or other confidential data of
any kind, nature or description.
12.3 MANNATECH recognizes, acknowledges, and agrees that ▇▇▇▇▇▇▇▇▇▇'▇
trade name(s), trademarks, copyrights, patents, marketing plans,
product formulations, know-how, compounds, products, processes,
designs, production methods and techniques and other proprietary
product information and any information relating to the management
and/or operations of ▇▇▇▇▇▇▇▇▇▇ are valuable, proprietary assets
and Confidential Information belonging to ▇▇▇▇▇▇▇▇▇▇ and as such
are the sole property of ▇▇▇▇▇▇▇▇▇▇ and may constitute trade
secrets of ▇▇▇▇▇▇▇▇▇▇. MANNATECH specifically agrees it will
not at any time, during or after the performance of the Supply
Agreement, in any manner, either directly or indirectly, use,
divulge, disclose, or communicate to any person, firm or
corporation, any confidential information of any kind, nature, or
description concerning any matters affecting or relating to the
business of ▇▇▇▇▇▇▇▇▇▇. For the avoidance of doubt, ▇▇▇▇▇▇▇▇▇▇'▇
Confidential Information includes but is not limited to: the
names or practices of any of ▇▇▇▇▇▇▇▇▇▇'▇ customers; ▇▇▇▇▇▇▇▇▇▇'▇
marketing methods and related data; the names of ▇▇▇▇▇▇▇▇▇▇'▇
vendors or suppliers; costs of materials; costs of its products
generally, the prices ▇▇▇▇▇▇▇▇▇▇ obtains or has obtained or at
which it sells or has sold its products or services; manufacturing
and sales costs; lists or other written records used in
▇▇▇▇▇▇▇▇▇▇'▇ business, details of training methods, new products
or new uses for old products, merchandising or sales techniques,
contracts and licenses, business systems, computer programs, or
any other confidential information of, about, or concerning the
business of ▇▇▇▇▇▇▇▇▇▇; its manner of operation or other
confidential data of any kind, nature or description.
12.4 Prior to the execution of this Supply Agreement, the Parties may
have provided each other with information considered "Confidential
Information." Such information supplied prior to the execution of
this Supply Agreement shall be considered in the same manner and
be subject to the same treatment as the Confidential Information
made available after the execution of this Supply Agreement.
12.5 Information shall not be considered "Confidential Information" to
the extent, but only to the extent, that the receiving party can
establish that such information (a) is or becomes generally known
or available to the public through no fault of the receiving
party; (b) was in the receiving party's possession before receipt
from the disclosing party; (c) is lawfully obtained from a third
party who has the right to make such disclosure; (d) has been
independently developed by the receiving party without use of or
reference to any Confidential Information of the disclosing party;
or (e) is required to be disclosed in order to comply with
applicable law or regulation or with any requirement imposed by
judicial or administrative process or any governmental or court
order but only to the extent required and, provided that, the
recipient in each instance before making such disclosure first:
(i) immediately upon receipt of such order notifies the other
party of such order; and (ii) cooperates with the other party in
making, if available under applicable law, a good faith effort to
obtain a protective order or other appropriate determination
against or limiting disclosure or use of the Confidential
Information, at no cost to the recipient party.
12.6 All Confidential Information shall remain the exclusive
property of the disclosing party. The disclosure of Confidential
Information by the disclosing party shall not constitute an
express or implied grant to the recipient party, of any rights to
or under the disclosing party's patents, copyrights, trade
secrets, trademarks or any other intellectual property rights.
Each party shall protect the other's Confidential Information from
unauthorized dissemination and use with the same degree of care
that each such party uses to protect its own non-public and
confidential information, but in no event less than a commercially
reasonable degree of care.
12.7 Neither party will use the other's Confidential Information for
purposes other than those necessary to directly further the
purposes of this Supply Agreement. Neither party will disclose to
third parties the other's Confidential Information without prior
written consent of such other party. Upon termination of this
Supply Agreement or upon written demand of the disclosing party,
the recipient party shall return (or destroy upon the direction of
the disclosing party) any and all copies of the Confidential
Information in its possession.
13. Remedies.
--------
13.1 ▇▇▇▇▇▇▇▇▇▇ acknowledges that MANNATECH has devoted considerable
time and resources in connection with the development of its sales
force and products and establishment of goodwill associated with
the same. ▇▇▇▇▇▇▇▇▇▇ acknowledges that a breach by ▇▇▇▇▇▇▇▇▇▇ of
Paragraphs 6.2 or 12 would cause MANNATECH to suffer irreparable
harm, for which damages would be difficult to assess and further
agrees that MANNATECH shall be entitled to injunctive relief in
addition to any other right or remedy MANNATECH may have,
including without limitation, the remedy set forth in section 8.2
herein and/or the recovery of damages for the breach of this or
any other surviving provision(s) in the Supply Agreement.
13.2 MANNATECH acknowledges that ▇▇▇▇▇▇▇▇▇▇ has devoted considerable
time and resources in connection with the development of its
products, production procedures and methods, trade secrets and
intellectual property. MANNATECH acknowledges that a breach by it
of Paragraphs 2.3, 6.1 or 12 would cause ▇▇▇▇▇▇▇▇▇▇ to suffer
irreparable harm, for which damages would be difficult to assess
and further agree that ▇▇▇▇▇▇▇▇▇▇ shall be entitled to injunctive
relief in addition to any other right or remedy ▇▇▇▇▇▇▇▇▇▇ may
have, including without limitation, the recovery of damages for
the breach of this or any other surviving provision(s) in the
Supply Agreement.
14. Disclaimer and Indemnity.
------------------------
14.1 Subject to ▇▇▇▇▇▇▇▇▇▇'▇ representations and warranties as set
forth in Paragraph 8 herein, MANNATECH shall assume all financial
and other obligations for the Manufactured Products, and
▇▇▇▇▇▇▇▇▇▇ shall not incur any liability or responsibility to
MANNATECH or to third parties arising out of or connected in any
manner with the Manufactured Products. WITHOUT LIMITING IN ANY
MANNER THE PROVISIONS OF SECTION 13.2, IN NO EVENT SHALL
▇▇▇▇▇▇▇▇▇▇ BE LIABLE FOR LOST PROFITS, SPECIAL DAMAGES,
CONSEQUENTIAL DAMAGES OR CONTINGENT LIABILITIES ARISING OUT OF OR
CONNECTED IN ANY MANNER WITH THIS AGREEMENT OR THE MANUFACTURED
PRODUCTS. MANNATECH shall defend, indemnify and hold harmless
▇▇▇▇▇▇▇▇▇▇ and its affiliates, and their respective officers,
directors, employees and agents, from and against all claims,
liabilities, demands, damages, expenses and losses (including
reasonable attorneys' fees and expenses) arising out of or
connected with (i) the manufacture, use, sale or other disposition
of the Manufactured Products or other MANNATECH products; (ii) the
wrongful or negligent use by MANNATECH of the ▇▇▇▇; or (iii) any
breach by MANNATECH of any of its respective obligations under
this Supply Agreement.
14.2 Notwithstanding anything contained herein to the contrary,
▇▇▇▇▇▇▇▇▇▇ shall assume all financial and other obligations
related to its production of the Manapol[R] powder and/or other
products supplied by ▇▇▇▇▇▇▇▇▇▇ and MANNATECH shall not incur any
liability or responsibility to ▇▇▇▇▇▇▇▇▇▇ or to third parties
arising out of or connected in any manner with the Manapol[R]
powder or other products supplied to MANATECH by ▇▇▇▇▇▇▇▇▇▇
provided such products are made, used, handled and sold by
MANNATECH in compliance with this Agreement. WITHOUT LIMITING IN
ANY MANNER THE PROVISIONS OF SECTION 13.1, IN NO EVENT SHALL
MANNATECH BE LIABLE FOR LOST PROFITS, SPECIAL DAMAGES,
CONSEQUENTIAL DAMAGES OR CONTINGENT LIABILITIES ARISING OUT OF OR
CONNECTED IN ANY MANNER WITH THIS AGREEMENT OR THE MANAPOL[R]
POWDER OR OTHER MANAPOL[R] PRODUCTS. ▇▇▇▇▇▇▇▇▇▇ expressly agrees
to indemnify and hold harmless MANNATECH from and against claims,
suits, losses, causes of action, damages, liabilities, and
expenses including arbitration or court costs and attorney's fees,
arising on account of injuries to or the death of any person, or
damages to property including loss of use, from or in any manner
connected with the Manapol[R] powder, or other products supplied
by to MANNATECH by ▇▇▇▇▇▇▇▇▇▇ or the work performed by or for
MANNATECH under this contract, but only to the extent caused in
whole or in part by the negligent acts or omissions of ▇▇▇▇▇▇▇▇▇▇
or any of its employees, agents, representatives, subcontractors,
or suppliers or anyone for whose acts they may be liable.
14.3 Further, ▇▇▇▇▇▇▇▇▇▇ agrees to indemnify MANNATECH against, and to
reimburse MANNATECH for, all damages for which it is held liable
in any proceeding brought by a third party in which MANNATECH'S
use of the ▇▇▇▇, as permitted and in accordance with this Supply
Agreement, is held to constitute trademark infringement or
dilution, and for all costs MANNATECH reasonably incurs in the
defense of any claim brought against it or in any proceeding in
which it is named as a party (in each case, limited to expenses
incurred prior to ▇▇▇▇▇▇▇▇▇▇'▇ assumption of the defense of such
claim or proceeding), provided that MANNATECH promptly notifies
▇▇▇▇▇▇▇▇▇▇ of the claim or proceeding and has otherwise complied
with this Supply Agreement, and provided that MANNATECH has
tendered control of the defense and settlement of the claim or
proceeding to ▇▇▇▇▇▇▇▇▇▇.
15. Force Majeure.
-------------
Neither party shall be responsible for damages caused by its delay or
failure to perform, in whole or in part, its obligations under this
Supply Agreement or by its non-compliance with any of the terms of this
Supply Agreement to the extent such delay, failure or non-compliance is
due or attributable to flood, extreme weather, fire, hurricane, tornado
or other natural calamity; acts of God; any law, order, action or
request from the United States government or any other government
having jurisdiction over the Manapol[R] powder or other Manapol[R]
products, or any act of any governmental department or agency, or of
any civil or military authority; war; national emergency; insurrection,
riot or civil unrest; any terrorist attack or governmental response
thereto; any strike, work stoppage or other labor difficulty; any
product shortage; or any national or regional economic event not within
its control. In case of any such force majeure event, the party
incurring the force majeure event shall give the other party written
notice within five (5) business days of the force majeure event, and
thereafter such noticing party's obligations hereunder shall be
suspended and discharged to the extent and for the duration of such
force majeure event; provided, however, that the noticing party shall
use its best efforts to mitigate the effects of such force majeure
event. Upon expiration, settlement or other resolution of the force
majeure event, the noticing party shall resume performance in full
hereunder but shall not be required to make up for any suspended
or discharged obligations. In the event ▇▇▇▇▇▇▇▇▇▇'▇ obligations
hereunder are suspended or discharged due to any force majeure event,
MANNATECH may enter into other reasonable arrangements with other
suppliers or distributors to satisfy its requirements hereunder.
Further, the Parties agree that MANNATECH shall receive a credit
against its volume commitments in an amount equal to the volume of
replacement product purchased from any such other supplier or
distributor during the force majeure period.
16. Rights Upon Default; Termination.
--------------------------------
16.1 ▇▇▇▇▇▇▇▇▇▇'▇ Rights Upon Default.
--------------------------------
16.1.1 Termination With Cure Period. Upon the occurrence of any of
the events specified below, MANNATECH shall be in default of this
Supply Agreement and ▇▇▇▇▇▇▇▇▇▇ shall have the right to terminate
this Supply Agreement upon either thirty (30) days prior written
notice for a non-monetary default or in the case of a monetary
default, ten (10) days prior written notice (each a "Cure Period")
to MANNATECH, specifying the default of this Supply Agreement which
shall constitute good cause for termination and providing MANNATECH
with the applicable Cure Period to cure the default giving rise to
the good cause for termination. The termination shall be effective
upon the expiration of the applicable Cure Period if MANNATECH fails
to cure the default. It shall be a breach of this Supply Agreement
and constitute good cause for termination of the Supply Agreement if
MANNATECH:
(i) fails to purchase the quantities of Manapol[R] powder
specified in this Supply Agreement;
(ii) refuses or otherwise fails to promptly pay when due any
monetary obligation to ▇▇▇▇▇▇▇▇▇▇ under this Supply
Agreement;
(iii) misappropriates, misuses, or makes any unauthorized
use of the ▇▇▇▇ or materially impairs the goodwill
associated with the ▇▇▇▇;
(iv) violates any law, ordinance, rule or regulation of a
governmental agency in the connection with the
Manufactured Products, and permits the same to go
uncorrected after learning thereof; or
(v) fails to comply with any other provision of this Supply
Agreement.
Notwithstanding anything contained herein to the contrary,
▇▇▇▇▇▇▇▇▇▇ shall not have the right to terminate this Supply
Agreement if the corrective action necessary to cure such breach
cannot be completed within the Cure Period; provided, however,
that MANNATECH (i) has, within the Cure Period, initiated the
necessary action required to cure such breach; and (ii) shall
thereafter earnestly and continuously proceed to complete the
corrective action necessary to cure the breach.
16.1.2 Immediate Termination. ▇▇▇▇▇▇▇▇▇▇ may immediately
terminate this Agreement effective upon receipt of written
notice to MANNATECH upon the occurrence of any one or more of
the following events:
(i) MANATECH voluntarily seeks protection under any federal
or state bankruptcy or insolvency laws;
(ii) a petition for bankruptcy or the appointment of a
receiver is filed against MANNATECH and is not dismissed
within thirty (30) days thereafter;
(iii) MANNATECH makes any assignment for the benefit of its
creditors;
(iv) MANNATECH ceases doing business;
(v) MANNATECH violates Article 7; or
(vi) MANNATECH fails to comply with any other provision of
this Supply Agreement.
16.2 MANNATECH'S Rights Upon Default.
16.2.2 Termination With Cure Period. Upon the occurrence of
any of the events specified below, ▇▇▇▇▇▇▇▇▇▇ shall be in
default of this Supply Agreement and MANNATECH shall have the
right to terminate this Supply Agreement upon either thirty
(30) days prior written notice for a non-monetary default or
in the case of a monetary default, ten (10) days prior
written notice (each a "Cure Period") to ▇▇▇▇▇▇▇▇▇▇,
specifying the default of this Supply Agreement which shall
constitute good cause for termination and providing
▇▇▇▇▇▇▇▇▇▇ with the applicable Cure Period to cure the
default giving rise to the good cause for termination. The
termination shall be effective upon the expiration of the
applicable Cure Period if ▇▇▇▇▇▇▇▇▇▇ fails to cure the
default. It shall be a breach of this Supply Agreement and
constitute good cause for termination of the Supply Agreement
if ▇▇▇▇▇▇▇▇▇▇:
(i) fails to meet and adhere to the Manapol[R] powder
quality specifications set forth in Exhibit C; provided,
however, that ▇▇▇▇▇▇▇▇▇▇ may cure such breach by
supplying replacement Manapol[R] powder or refunding the
applicable payment of non-conforming Manapol[R] powder
as set forth in Section 8.2;
(ii) violates any law, ordinance, rule or regulation of a
governmental agency in the connection with the supply of
Mannapol[R] powder to MANNATECH, and permits the same to
go uncorrected after learning thereof;
(iii) fails to maintain or suffers cancellation of any
insurance policy required under this Supply Agreement;
or
(iv) fails to comply with any other provision of this Supply
Agreement.
Notwithstanding anything contained herein to the contrary,
MANNATECH shall not have the right to terminate this Supply
Agreement if the corrective action necessary to cure such breach
cannot be completed within the Cure Period; provided, however,
that ▇▇▇▇▇▇▇▇▇▇ (i) has, within the Cure Period, initiated the
necessary action required to cure such breach; and (ii) shall
thereafter earnestly and continuously proceed to complete the
corrective action necessary to cure the breach.
16.2.3 Immediate Termination. MANNATECH may immediately
terminate this Agreement effective upon receipt of written
notice to ▇▇▇▇▇▇▇▇▇▇ upon the occurrence of any one or more
of the following events:
(i) ▇▇▇▇▇▇▇▇▇▇ violates Section 6.2.2;
(ii) there is an immediate threat or danger to public health
or safety resulting from ▇▇▇▇▇▇▇▇▇▇'▇ production and/or
supply of Manapol[R] powder;
(iii) ▇▇▇▇▇▇▇▇▇▇ voluntarily seeks protection under any
federal or state bankruptcy or insolvency laws;
(iv) A petition for bankruptcy or the appointment of a
receiver is filed against ▇▇▇▇▇▇▇▇▇▇ and is not
dismissed within thirty (30) days thereafter;
(v) ▇▇▇▇▇▇▇▇▇▇ makes any assignment for the benefit of its
creditors; or
(vi) ▇▇▇▇▇▇▇▇▇▇ ceases doing business.
17. Further Assurances.
------------------
The Parties shall execute and deliver such additional documents and
take such additional actions as either party may deem necessary or
appropriate to carry out more effectively the intent and purpose of
this Supply Agreement. All such additional documents and actions shall
be deemed to have been executed, delivered, or taken on the Effective
Date of this Supply Agreement, except as may otherwise be appropriate.
18. Authority.
---------
The Parties represent that they have full capacity and authority to
grant all rights and assume all obligations they have granted and
assumed under this Supply Agreement.
19. Assignment; Binding Effect.
--------------------------
The Parties hereto may not assign or otherwise transfer this Supply
Agreement or any of its rights or obligations hereunder without the
prior written consent of the other party; provided, however, that
either party may assign any of its rights or obligations hereunder to
an affiliate without the prior written consent of the other party.
Subject to the immediately preceding sentence, this Supply Agreement
shall be binding upon and inure to the benefit of the Parties hereto
and their respective successors and assigns.
20. Counterparts.
------------
This Supply Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute
one and the same instrument.
21. Notices.
-------
All notices and other communications with respect to this Supply
Agreement must be in writing and either (a) hand-delivered by the party
giving notice or by a recognized overnight delivery service which
requires a written receipt of delivery, or (b) sent by certified or
registered mail, return receipt requested, addressed as follows or to
such other address and attention as either of the parties shall notify
the other in writing. If mailed, a notice will be deemed effective upon
the earlier of its actual receipt or the third business day after it is
postmarked.
If to MANNATECH: Mannatech, Incorporated
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: President
With a copy to General Counsel (at same address)
If to ▇▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇▇▇▇ Laboratories, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: President
22. Applicable Law; Venue. This Supply Agreement shall be governed by and
construed in accordance with the laws of Texas, without regard to any
conflict-of-law rules that would apply any other law. Each party
submits to the exclusive jurisdiction of the state and federal courts
in and for Dallas County, Texas in connection with any dispute arising
our of or relating to this Agreement.
23. Interpretation. If any provision of this Supply Agreement is held to
be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable and the remaining provisions hereof
shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance from
this Supply Agreement. Furthermore, in lieu of such illegal, invalid
or unenforceable provision, there shall be added as part of this Supply
Agreement, a provision as similar in its terms to such illegal, invalid
or unenforceable provision as may be possible and be legal, valid and
enforceable.
24. No Waiver. The failure of either party to insist upon strict
performance of any obligation hereunder by the other party,
irrespective of the length of time for which such failure continues,
shall not be a waiver of its right to demand strict compliance in the
future. No consent or waiver, express or implied, by either party to
or of any breach or default in the performance of any obligation
hereunder by the other party shall constitute a consent or waiver to or
of any other breach or default in the performance of the same or any
other obligation hereunder.
25. No Inconsistent Actions. Each party hereto agrees that it will not
voluntarily undertake any action or course of action inconsistent with
the provisions or intent of this Supply Agreement and, subject to
Paragraph 12 hereof, will promptly do all acts and take all measures as
may be appropriate to comply with the terms, conditions and provisions
of this Supply Agreement.
26. Survival. The expiration or termination of this Supply Agreement shall
not impair the rights or obligations of the Parties which have accrued
hereunder prior to such expiration or termination. The provisions of
Paragraphs 2.3, 8, 12, 14, 16 and 17 hereof, and the rights and
obligations of the Parties thereunder, shall survive the expiration or
termination of this Supply Agreement.
27. Entire Agreement. Except as otherwise contemplated hereby, this Supply
Agreement, constitutes the entire agreement between the Parties with
regard to the subject matter contained herein, and supersedes all prior
or contemporaneous oral or written agreements, conditions,
representations, and/or understandings, between the Parties.
IN WITNESS WHEREOF, the Parties have executed this Supply Agreement as
of the Effective Date.
MANNATECH, INCORPORATED,
a Texas corporation
By: _______________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Operating Officer
▇▇▇▇▇▇▇▇▇▇, INC.,
a Texas corporation
By: _______________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: CEO
EXHIBIT A
Switzerland
The countries of the European Union as of November 30, 2006.
Singapore
Malaysia
Australia
New Zealand
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
EXHIBIT B
---------------------------------------------------------------------------
Period Months Pricing/kg Volume
---------------------------------------------------------------------------
First 12 Months 1 - 5 *** *** kg
---------------------------------------------------------------------------
6 _ 12 *** *** kg
---------------------------------------------------------------------------
Second 12 Months 13 - 24 *** *** kg
---------------------------------------------------------------------------
Third 12 Months 25 - 36 *** To be negotiated and agreed upon
by the Parties no later than ninety
(90) days prior to the expiration
of the Second 12 Month Period.
---------------------------------------------------------------------------
EXHIBIT C
MANAPOLR POWDER PRODUCT SPECIFICATION
SOURCE:
***
PROCESSING:
Alcohol Precipitation and Freeze Drying Patented: U.S. and other patents
PRODUCT SPECIFICATIONS:
***