EXHIBIT 10.69
MANUFACTURING SERVICES AGREEMENT
This Manufacturing Services Agreement ("Agreement") is made as of the 5th
day of November, 2002, by and between DESERT WHALE JOJOBA COMPANY, INC., a
Arizona Corporation, having its principal place of business at 2101 E.
Beverly Drive, Tucson, Arizona 85719, hereinafter called "DWJ", and IGI,
INC., a Delaware Corporation, with its principal place of business at 105
Lincoln Avenue, Buena, New Jersey 08310, hereinafter called "Manufacturer".
WHEREAS, DWJ wishes to develop and market the product or products
("Subject Products") described on Exhibit A attached hereto, from the raw
materials ("Raw Materials") and with the specifications ("Product
Specifications") described on said Exhibit A; and
WHEREAS, Manufacturer possesses the facilities and the technical
know-how to produce the Subject Products from the Raw Materials; and
WHEREAS, DWJ wishes to produce the Subject Products meeting the
Product Specifications at Manufacturer's facility from the Raw Materials
supplied by DWJ, and Manufacturer desires to produce the Subject Products
for DWJ; and
WHEREAS, the Subject Products and the Raw Materials set forth on
Exhibit A hereto may be modified in accordance with the terms of this
Agreement.
AGREEMENT
NOW, THEREFORE, the parties mutually agree as follows:
1. RECITALS. The recitals set forth above are hereby incorporated
by reference and made a part of this Agreement as if set forth herein at
length.
2. PRODUCTION OF THE SUBJECT PRODUCTS.
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Manufacturer agrees to produce the Subject Products from the Raw
Materials upon the following terms:
2.1 Shipment of Raw Materials. DWJ shall at its sole cost and
expense supply Manufacturer with the Raw Materials to be encapsulated from
which Manufacturer shall produce any and all Subject Products under this
Agreement. DWJ shall be solely responsible for the method of and all costs
related to shipment of the Raw Materials from which Manufacturer is to
produce the Subject Products. The Raw Materials shipped by DWJ to
Manufacturer under this Agreement shall be accompanied by and delivered
with a Certificate of Analysis and Expiration Date. Risk of Loss and Title
to any and all Raw Materials shall not pass to Manufacturer, and shall
remain with DWJ, until such time as Manufacturer accepts such shipment of
Raw Materials. In addition to any other rights
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and remedies available to the Manufacturer under this Agreement and/or as
otherwise provided by law, Manufacturer shall be free to reject and/or
refuse to accept shipment of any Raw Materials hereunder that (i) are
defective, damaged, inferior and/or otherwise non-conforming; (ii) are
dated to expire within 120 days after the date such shipment was received
at the Manufacturer's Production Facility (as defined below); (iii) do not
conform to or otherwise meet the applicable Product Specifications for the
Subject Products to which the shipment relates; and/or (iv) exceed the
amount necessary for production of the Subject Products to which the
shipment relates. In addition, DWJ shall not ship to Manufacturer any Raw
Materials in amounts exceeding that which is necessary for production of
the Subject Products to which the shipment relates (hereinafter "Excess Raw
Materials"). In the event DWJ ships any Excess Raw Materials to
Manufacturer, the Risk of Loss and Title to any such Excess Raw Materials
shall at all times remain with DWJ until and unless such time as the Excess
Raw Materials are actually encapsulated by Manufacturer into a Subject
Product for delivery to DWJ under this Agreement. DWJ shall be responsible
for any and all costs and expenses of return shipment for any and all
Excess Raw Materials, as well as any and all other Raw Materials rejected
and/or otherwise not accepted by Manufacturer hereunder. All shipments of
Raw Materials shall be sent to Manufacturer at Manufacturer's facility
located at 105 Lincoln Avenue, Buena, New Jersey 08310, or such other
address as Manufacturer may provide to DWJ in a written notice (hereinafter
"Manufacturer's Production Facility"). At least fifteen (15) calendar days
prior to any shipment of Raw Materials hereunder, DWJ shall provide the
Manufacturer with written notice of the shipment (hereinafter "Shipment
Notice"), which Shipment Notice shall specify the quantity and type of Raw
Materials, the Subject Products to be manufactured from the Raw Materials,
the shipment date and the date that the shipment is expected to arrive at
Manufacturer's Production Facility. The Shipment Notice shall also
constitute the purchase order for the Subject Products set forth therein.
2.2 Production of Subject Products.
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(a) Unless otherwise agreed by the parties in writing, within
twenty (20) business days of the date of Manufacturer's acceptance of Raw
Materials shipped by DWJ pursuant to Section 2.1 above (hereinafter "the
Production Period"), the Subject Products specified in the Shipment Notice
shall be produced by Manufacturer as per the applicable Product
Specifications, packaged in bulk and ready for shipment to DWJ pursuant to
Section 2.3 below. Upon Manufacturer's acceptance of a shipment of Raw
Materials from DWJ, Manufacturer shall notify DWJ in writing of the
estimated date upon which the Subject Products ordered under the Shipment
Notice relating to such Raw Materials shall be completed, packaged in bulk
and ready for shipment to DWJ pursuant to Section 2.3 below.
Notwithstanding the foregoing, DWJ shall not unreasonably withhold its
consent to any reasonable request by Manufacturer to extend the duration of
the Production Period relating to any order of Subject Products under this
Agreement, but in no event shall the Production Period exceed forty-five
(45) business days.
(b) Manufacturer shall not be deemed to be in breach of any of its
obligations under this Agreement, nor shall it be liable to DWJ and/or any
other third party in any
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way whatsoever for damages or otherwise, for the inability and/or failure
to complete production of any Subject Products hereunder within the
Production Period as a result of and/or due to DWJ's failure to timely
supply Manufacturer with Raw Materials in sufficient amounts and quality as
are necessary in order for Manufacturer to produce such Subject Products.
2.3 Shipment of Subject Products. Upon completion of the
production of Subject Products from a shipment of Raw Materials,
Manufacturer shall (a) notify DWJ in writing of such completion, and (b)
ship the Subject Products to DWJ in a manner directed in writing by DWJ.
The Risk of Loss and Title to any and all of such Subject Products shall
pass to DWJ immediately upon Manufacturer's delivery of such Subject
Products to the shipment carrier as arranged and designated by DWJ for
transport to DWJ's facility located at 2101 East Beverly, Tucson, Arizona
85719, or such other address DWJ may provide to Manufacturer in a written
notice (hereinafter "DWJ's Facility"). DWJ shall be responsible for any
and all costs and expenses for shipping and/or otherwise transporting all
Subject Products ordered by DWJ hereunder from Manufacturer's Production
Facility to DWJ's Facility for delivery thereof.
2.4 Amendment of Exhibit A. From time to time DWJ may request
that the Manufacturer produce a new product that would be added as a
Subject Product on Exhibit A hereto, which product may or may not be made
from raw materials not previously listed on said Exhibit A (hereinafter
"Proposed Product"). Manufacturer agrees to review the request for the
Proposed Product and determine (a) whether or not Manufacturer is capable
of producing the Proposed Product, (b) whether or not Manufacturer is
desirous of producing the Proposed Product, and (c) whether or not
Manufacturer's production of the Proposed Product for DWJ's behalf would
violate the terms of any agreement with a third party to which Manufacturer
is subject. If Manufacturer is desirous and capable of producing the
Proposed Product, and the Manufacturer's production of the Proposed Product
does not violate the terms of any agreement with a third party to which
Manufacturer is subject, Manufacturer shall so notify DWJ in writing
("Acceptance Notice"). Within twenty (20) business days of DWJ's receipt
of an Acceptance Notice, and provided the parties are able to mutually
agree upon pricing and other terms, the parties shall execute a written
amendment to Exhibit A to add the Proposed Product as a Subject Product and
the Raw Material(s) for the Proposed Product to be supplied by DWJ pursuant
to the terms of this Agreement. If the parties are unable to so agree on
the price and other terms for the Proposed Product, Exhibit A shall not be
otherwise amended to add the Proposed Product thereto. At any time prior
to DWJ's receipt of an Acceptance Notice, DWJ may withdraw its request for
such Proposed Product be added as a Subject Product on Exhibit A, and such
Proposed Product shall not be subject to the terms of this Agreement.
3. MARKETING AND MANUFACTURING RIGHTS.
-----------------------------------
3. l Grant of Exclusive Manufacturing Rights. Subject to the terms
of this Agreement, Manufacturer shall have the exclusive right to
manufacture the Subject Products during the term of this Agreement. In
that regard, DWJ shall not enter into any
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agreement with any person or entity other than Manufacturer for the
manufacture of the Subject Products, without the express prior written
consent of Manufacturer, which consent may be granted or withheld in
Manufacturer's sole discretion.
3.2 Agreement Not to Manufacture or Sell Subject Products.
Subject to the terms of this Agreement, Manufacturer shall not during the
term of this Agreement manufacture any of the Subject Products for its own
behalf or for any third party or entity other than DWJ, without the express
prior written consent of DWJ, which consent may be granted or withheld in
DWJ's sole discretion.
3.3 No Limitation on Use of Subject Products. Except as otherwise
provided by law and/or by any other binding contractual obligations of
either DWJ or the Manufacturer, DWJ shall not be limited in any way in
marketing the Subject Products or ways in which the Subject Products are
utilized, including, without limitation, marketing products under the name
of DWJ or some other trade name to which DWJ has rights and title thereto,
or supplying the Subject Products to third party users, who will also not
be subject to any limitations in the way in which the Subject Products are
utilized except as provided herein, including, without limitation,
marketing the Subject Products under their own name or the trade name of
any third party to which they have rights and title thereto.
3.4 Discontinuance of Sale of Subject Products. Upon forty-five
(45) calendar days prior written notice to Manufacturer, DWJ in its sole
discretion shall have the right to discontinue the sale of any Subject
Product at any time during the term of this Agreement (hereinafter
"Discontinued Product"). DWJ shall continue to be obligated to purchase
from Manufacturer in accordance with the terms contained herein (a) any and
all Discontinued Products that were completed and ready for shipment to DWJ
as of the date of Manufacturer's receipt of DWJ's written notice for such
Discontinued Products, and (b) any and all Discontinued Products for which
production had already been commenced by Manufacturer, but not yet
completed, as of the date of Manufacturer's receipt of DWJ's written notice
for such Discontinued Products. Notwithstanding the foregoing, the parties
expressly acknowledge and agree that upon DWJ's delivery of a notice of
discontinuation hereunder, Section 3.2 shall as of such date automatically,
and without any further action required by either party, cease to apply to
or have any force or effect as to any such Discontinued Products identified
therein.
3.5 Ownership Rights.
-----------------
(a) DWJ shall own any and all patents and/or other intellectual
property rights in and to the Product Formulations (as defined below) and
Product Specifications of any Subject Product hereunder ("DWJ's IP"), and
except as is necessary for the purpose of manufacturing any and all Subject
Products under this Agreement, Manufacturer agrees to hold in confidence
all such DWJ IP Rights. For purposes of this Agreement, Product
Formulations shall mean the Product Formulations for the Subject Products
as set forth on Exhibit A attached hereto, as it may be amended from time
to time. Manufacturer is hereby granted a license to use any and all DWJ's
IP in connection with the performance of Manufacturer's obligations and
exercise of Manufacturer's rights hereunder.
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Notwithstanding the foregoing, nothing contained in this Agreement shall
transfer, confer, convey and/or otherwise grant to DWJ any rights,
interest, title or claim of any kind whatsoever in or to any of
Manufacturer's production technology and/or processes, including, without
limitation, the patented Novasome(R) encapsulation technology and
processes, all of which rights, title, interests and claims shall remain
the sole property of Manufacturer.
(b) Manufacturer shall own any and all patents, know-how, trade
secrets, designs and other intellectual property rights in and to the
processes, systems and methods to make, produce and/or manufacture any and
all of the Subject Products hereunder ("Manufacturer's Processes"),
including, without limitation, Manufacturer's patented Novasome(R)
encapsulation technology and processes, all of which rights, title and
interests shall remain the sole property of Manufacturer.
(c) DWJ agrees to defend, indemnify and hold Manufacturer, and its
directors, officers, shareholders, employees, agents, representatives,
attorneys, successors and assigns, harmless from and against any and all
third-party liabilities, claims, demands, damages, costs and expenses
(including, without limitation, reasonable attorneys' fees and costs),
penalties, fines, interest, assessments, judgments, suits, allegations, and
injuries of any kind whatsoever, actual, threatened and/or alleged at any
time after the Effective Date of this Agreement, arising from, relating to,
and/or resulting from: (i) breach, infringement, violation and/or other
interference with the rights of a third-party, including, without
limitation, ownership, title, license, contract, trademark, copyright,
patent, intellectual property and/or any other property rights of any kind
whatsoever, as it may relate to any or all of DWJ's IP; and/or (ii) any and
all personal injury and/or property damage due to and/or caused by use
and/or ingestion of any and/or all Subject Products supplied by
Manufacturer to DWJ under this Agreement, including, without limitation,
personal injury and/or property damages resulting from the manufacture of
any and all Subject Products from Raw Materials supplied by DWJ and/or from
the manufacture of any and all Subject Product in conformance with Product
Specifications and/or Product Formulations; provided, however, that the
foregoing indemnification shall be reduced to the extent of the
Manufacturer's obligations to indemnify DWJ pursuant to paragraph (d)
immediately below,
(d) Manufacturer agrees to defend, indemnify and hold DWJ, and its
directors, officers, shareholders, employees, agents, representatives,
attorneys, successors and assigns, harmless from and against any and all
third-party liabilities, claims, demands, damages, costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses),
penalties, fines, interest, assessments, judgments, suits, allegations, and
injuries of any kind whatsoever, actual, threatened and/or alleged at any
time after the Effective Date of this Agreement, arising from, relating to,
and/or resulting from: (i) breach, infringement, violation and/or other
interference with the rights of a third party, including, without
limitation, ownership, title, license, contract, trademark, copyright,
patent, intellectual property and/or any other property rights of any kind
whatsoever, as it may relate to any or all of Manufacturer's Processes;
and/or (ii) personal injury and/or property damage due to defects in the
manufacture of any and all Subject Products;
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provided, however, that the foregoing indemnification shall be reduced to
the extent of DWJ's obligation to indemnify Manufacturer pursuant to
paragraph (c) immediately above.
4. PAYMENTS.
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4.1 Payment Amount. The amount DWJ shall pay for each Subject
Product produced by Manufacturer under this Agreement shall be determined
and calculated pursuant to the prices set forth in Exhibit B annexed hereto
and made a part of this Agreement.
4.2 Payment for Orders. Manufacturer shall submit written
invoices to DWJ specifying the amounts due for all Subject Products
produced by Manufacturer and shipped to DWJ under this Agreement. Except
as provided in Section 6.3 of this Agreement, all invoices from
Manufacturer shall be due and payable thirty (30) calendar days after DWJ
receives the shipment of the Subject Products(s) to which an invoice
pertains. All Subject Products ordered by DWJ hereunder shall be delivered
to DWJ FOB Manufacturer's Production Facility. In the event DWJ fails to
pay any invoice in a timely manner, Manufacturer reserves the right to
require payment from DWJ upon delivery of any and all shipments of Subject
Products thereafter made under this Agreement.
5. REPRESENTATIONS AND WARRANTIES.
-------------------------------
5.1 Manufacturer's Representations and Warranties. Manufacturer
warrants and represents, that:
(a) it possesses full power and authority to enter into this
Agreement and to fulfill its obligations hereunder;
(b) at the time this Agreement is entered into, it is the
owner and/or licensee of the processes necessary to produce the
Subject Products and all rights with relating thereto, and
Manufacturer's production of the Subject Products will not infringe
any patent or other legal rights of any person or entities; and
(c) the performance of the terms of this Agreement and of
its obligations hereunder shall not breach any separate agreement by
which it is bound.
5.2 DWJ's Representations and Warranties. DWJ represents and
warrants that:
(a) it possesses full power and authority to enter into this
Agreement and to fulfill its obligations hereunder; and
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(b) the performance of the terms of this Agreement and of
its obligations hereunder shall not breach any separate agreement by
which it is bound.
6. TERM AND TERMINATION.
---------------------
6.1 Term. The term of this Agreement shall commence as of the
Effective Date hereof as set forth in Section 7.21 and shall continue in
full force and effect for a period of three (3) years unless sooner
terminated pursuant to Section 6.2 of this Agreement.
6.2 Early Termination of Agreement. This Agreement may be
terminated at any time by either party in the event that the other party
materially breaches any of its obligations hereunder, and such breach is
not cured by the non-performing party within thirty (30) calendar days of
receipt of written notice of such breach from the other party, or in the
event the breach is of a type that is not curable within a thirty (30)
calendar day period, if the non-performing party has not taken substantial
steps to cure such breach within thirty (30) calendar days of receipt of
written notice of such breach from the other party (hereinafter "Material
Breach"). Notwithstanding the foregoing, in the event of a Material Breach
of this Agreement, the non-breaching party may elect to seek monetary
damages from the breaching party for such Material Breach in lieu of
exercising its right as provided under this Section 6.2 to terminate the
Agreement, in which case the Agreement, and all rights and licenses granted
hereunder, shall continue in full force and effect until such time as the
Agreement is otherwise terminated under the terms hereof.
6.3 Events Upon Termination. Upon termination of this Agreement
in accordance with the terms hereof (hereinafter "the Termination Date"),
the parties agree to continue their cooperation in order to effect an
orderly termination of their relationship. Manufacturer shall to the
extent feasible complete production of Subject Products ordered under any
Shipment Notice from DWJ that was actually received by Manufacturer prior
to the Termination Date from the remaining quantities of Raw Materials in
Manufacturer's possession, provided, however, that if this Agreement is
terminated by Manufacturer under Section 6.2 due in whole or part to DWJ's
failure to pay Manufacturer amounts due hereunder, Manufacturer shall have
no obligation to produce any such Subject Products after the Termination
Date, unless DWJ fully pays Manufacturer in advance for any such Subject
Products to be produced under this Section 6.3, as well as, and together
with, DWJ's full payment to Manufacturer for any and all Subject Products
shipped to DWJ prior to the Termination Date, irrespective of the date of
the Manufacturer's invoices submitted to DWJ for payment relating thereto.
In the event that DWJ fails to pay Manufacturer as provided in the
immediately preceding sentence, Manufacturer may dispose of any remaining
Raw Materials, unless within thirty (30) calendar days after the
Termination Date, DWJ arranges for the return of the Raw Materials to DWJ,
including, without limitation, the payment of all associated shipping
costs.
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7. GENERAL.
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7.1 Force Majeure. Neither party shall be liable or deemed to be
in default for any delay or failure in performance under this Agreement or
interruption of service resulting, directly or indirectly, from acts of
God, civil or military authority, acts of the public enemy, war, riots,
civil disturbances, insurrections, accidents, fire, explosions,
earthquakes, floods, the elements, strikes, labor disputes, shortages of
suitable parts, materials, labor or transportation or other such similar
events outside of the control of such party.
7.2 Governing Law; Jurisdiction. This Agreement shall be governed
by and construed in accordance with the laws of the State of Arizona. The
parties hereto each expressly submit themselves and consent to the
jurisdiction of the state and federal courts of Arizona and New Jersey with
respect to any action that may be commenced relating in any way to this
Agreement. The parties hereto each further agree that service of process
with respect to any judicial action between the parties relating to this
Agreement shall be deemed made when sent via United States certified mail,
return receipt requested, to the parties at addresses set forth below in
Section 7.4, or to such other addresses as may be hereafter designated in
writing by the parties. In the event either party is required to incur
legal fees and costs in seeking enforcement of this Agreement, the
prevailing party shall be entitled to recover from the other party any and
all such legal fees and costs so incurred.
7.3 Entire Agreement. Upon the Effective Date of this Agreement,
and except as otherwise provided for herein, this Agreement constitutes the
entire Agreement between the parties with respect to the subject matter
hereof and supersedes all previous proposal negotiations, representations,
commitments, writings and all other communications between the parties,
both oral and written; provided, however, that the obligations of the
parties pursuant to the Confidentiality Agreement with respect to
confidentiality and non-disclosure of information shall remain in full
force and effect. A true and accurate copy of the Confidentiality
Agreement is annexed hereto as Exhibit C and is incorporated by reference
and made a part of this Agreement. This Agreement may not be released,
discharged, changed or modified except by an instrument in writing signed
by a duly authorized representative of each of the parties. This Agreement
shall not be valid until signed and accepted by both parties and no change,
termination or attempted waiver of any of the provisions hereof shall be
binding unless in writing and signed by the party against whom the same is
sought to be enforced.
7.4 Notices. All notices and other communications the parties are
required to send to one another under this Agreement shall be given in
writing and shall be sent to the addresses set forth below, or at such
other addresses as may be designated in writing hereafter by the parties.
A telex or telefax message shall be considered to be a written notice. If
mailed, such notice, demand or request shall be made by certified or
registered mail, and deposited in any post office station or letter-box,
enclosed in a postage paid
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envelope and shall be deemed to have been made on the third (3rd) business
day following posting as aforesaid. If commercially sent, the party giving
such notice shall use a recognized, overnight commercial courier service
and notice shall be deemed to have been made on the day following actual
delivery of such notice to the commercial carrier. If sent by facsimile
transmission, the party sending the transmission shall send it to the
facsimile number set forth below, or to such other fax number as direct by
written notice of either party given in accordance with this Section 7.4.
Delivery shall be deemed to have been made on the day that the facsimile
transmission occurred if received prior to 4:00 p.m. on a business day at
the place of receipt, otherwise on the following business day. For
purposes of and as used throughout this Agreement, the term "business
day(s)" shall mean a day(s) which is not a Saturday, Sunday or legal
holiday in Arizona in the case of DWJ or New Jersey in the case of
Manufacturer.
TO MANUFACTURER:
John Ambrose
President & CEO
IGI, Inc.
105 Lincoln Avenue
Buena, NJ 08310
Fax No.: (856) 697-1186
TO DWJ:
Jeff Kazansky
President
Desert Whale Jojoba Company, Inc.
2101 E. Beverly Drive
Tucson, Arizona 85719
Fax No.: (520) 882-7821
7.5 Assignment. This Agreement is not assignable by either party
without the prior written consent of the other. Notwithstanding the
foregoing, however, a party may assign its rights hereunder in connection
with a merger or sale of all or substantially all of the assets of the
party in question.
7.6 Independent Contractor. The parties acknowledge and agree
that they are dealing with each other hereunder as independent contractors.
Nothing contained in this Agreement shall be interpreted as constituting
either party as the joint venture or partner of the other party or as
conferring upon either party the power or authority to bind the other party
in any transaction with third parties.
7.7 Severability. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other part or provision of this Agreement.
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7.8 Waiver. No waiver by either party of any breach of any
provision hereof shall constitute a waiver of any other breach of that or
any other provision hereof.
7.9 Limitation on Liabilities; Remedies. Neither party shall be
liable to the other party for any punitive damages.
7.10 Counterpart Execution. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
7.11 Neutral Construction. This Agreement is the product of
negotiations between the parties and shall be construed neutrally, without
regard to the identity of the party who drew it.
7.12 Authorized Execution. DWJ represents and warrants that the
execution, delivery and performance of this Agreement by DWJ have been duly
authorized by DWJ with all requisite corporate action. Manufacturer
represents and warrants that the execution, delivery and performance of
this Agreement by Manufacturer have been duly authorized with all requisite
corporate action.
7.13 Public Announcements. At any time after the Effective Date of
this Agreement, either party shall, at its sole cost and expense, be
permitted to publicly announce, advertise, feature and/or otherwise market
the business relationship between the parties created under this Agreement
in and through such print and other media vehicles as selected by the
parties. Each party shall provide the other for its prior review and
approval, at least ten (10) business days prior to the proposed release
date, with the form and substance of any and all such proposed
announcements, advertising and/or features under this Section 7.13, which
approval shall not be unreasonably withheld by such party.
7.14 Section Headings. Section and/or paragraph headings as used
and provided for in this Agreement are for convenience only and shall not
effect the construction and/or interpretation of this Agreement.
7.15 Interpretation.
(a) All references in this Agreement to the plural shall also mean
the singular and to the singular shall also mean the plural unless the
context otherwise requires. The words "hereof", "herein", "hereunder",
"this Agreement", "the Agreement" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not any
particular provision of this Agreement unless the context otherwise
requires. The word "including" when used in this Agreement shall mean
"including, without limitation". "And" and "or" as used in this Agreement
shall be interpreted conjunctively and shall not be interpreted
disjunctively to exclude any information otherwise within the scope
thereof.
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(b) Any reference in this Agreement to any corporate and/or other
business entity shall include and extend to the benefit of such corporate
and/or other business entities' predecessors, successors, subsidiaries,
affiliates, assigns and/or any and all of their respective past and present
agents, attorneys, representatives, officers, directors, employees,
representatives, independent contractors, accountants and shareholders, as
if same were named individually herein.
7.16 Cooperation of the Parties. The parties hereto each expressly
acknowledge and agree to cooperate with each other in order to effectuate
this Agreement and the terms hereof, in whole or part, and as such, shall
at the reasonable request of either party hereto execute any additional
necessary documents, consistent with the terms of this Agreement, to
validate, enforce and/or otherwise effectuate the terms hereof.
7.17 Good Faith Performance. The parties hereto each acknowledge
and recognize their duty to act in good faith and deal fairly with respect
to this Agreement and the matters addressed herein, and, as such, expressly
represent and warrant that they shall at all times act in good faith in
performance, compliance, and fulfillment of this Agreement and the terms
hereof, in whole or part.
7.18 No Frustration or Interference. The parties each represent
and warrant that neither of them, nor any person and/or entity on their
respective behalves, shall take any action and/or inaction to frustrate
and/or interfere with the intent and purpose of this Agreement as set forth
herein. Further, the parties each represent and warrant that neither of
them, nor and/or any person and/or entity on their respective behalves,
shall take any action and/or inaction to attempt to avoid, alter, modify,
dishonor, disavow and/or otherwise seek not to perform any and/or all of
the duties, obligations, responsibilities, and/or liabilities under this
Agreement
7.19 No Third Party Beneficiaries. DWJ and Manufacturer each
expressly acknowledge and agree that neither this Agreement, in whole or
part, nor any of the terms contained herein, are intended and/or shall
operate to benefit and/or confer any rights, interests, obligations and/or
other privileges to any third party not a signatory to this Agreement.
7.20 Legal Advice of Counsel. The parties have obtained legal
advice concerning this Agreement from attorneys of their own choosing and
have not relied on anything the other party or the other party's attorneys
have said in deciding to sign this Agreement.
7.21 Effective Date. The "Effective Date" of this Agreement is
November 5, 2002.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
October _ , 2002.
Attested: DESSERT WHALE JOJOBA, INC.
By: /s/ Theresa Dearborn By: /s/ Jeff Kazansky
--------------------------- ------------------------
, Secretary Jeff Kazansky, President
Attested: IGI, INC.
By: /s/ Domenic N. Golato By: /s/ John F. Ambrose
--------------------------- ------------------------
, Secretary John F. Ambrose
President & CEO
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EXHIBIT A
JOJOBASOMES
DESERT WHALE p.o. box 41594 tucson, arizona 85717-1594- USA
JOJOBA COMPANY p 520.882.4195 f 520.882.7821
www.desertwhale.com
Manufacturing Sepecificaition
-----------------------------
PROPOSED
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PRODUCT NAME: JOJOBASOMES
The Product Specifications listed below will be revised based on the
data from future production batches.
PRODUCT SPECIFICATION ANALYTICAL METHOD TOLERANCE
- ------------------------------------------------------------------------------------
<s> <c> <c>
Viscosity @ 25 C, Cps 120,000-250,000
Appearance White, creamy
Jojoba Oil, wt% 25-35
Specific Gravity 25/25/ C, Pycnometer, USP 0.9400-0.9800
PH 7.5-9.5
Vesicle Size, microns 0.2-0.8
Microbiological Profile
Total Bacterial Count, cfu's per gram 100 Max
Nonconforming Organisms None
INGREDIENTS: Water (and) Simmondsia Chinensis (Jojoba) Seed Oil (and)
Glyceryl Stearate SE (and) Phytosterols (and) Phenoxyethanol
(and) Cetyl Alcohol (and) Methylparaben (and) Ethylparaben
(and) Propylparaben (and) Isobutylparaben
PACKAGING:
Packaged in new, odorless, clean, moisture free, unlined, 55-gallon
open head plastic drums. Package weights are net, drum = 190.5 kilograms
(420.0 pounds). No partial drums are to be sent. Package the partials in
white 5-gallon #2 HDPE pails with handles, removable lid. The lid should
include a sealed, flexible pour spout. Net weight for the 5-gallon pails =
17.24 kilograms (38.0 pounds).
Drum Specifications:
UN Rating: NOT AVAILABLE
Interior dimensions: NOT AVAILABLE
Thickness Millimeter (Gauge): NOT AVAILABLE
2 (two) Rieke (R), NPT Bungs, 1 (one) @
2 inches & 1 (one) 0.75 inch. Buna
Fittings gaskets for bungs.
Lining: NONE
Roll Hoops: 2 standard hoops
Tare Weight To be Determined.
DESERT WHALE p.o. box 41594 tucson, arizona 85717-1594- USA
JOJOBA COMPANY p 520.882.4195 f 520.882.7821
www.desertwhale.com
Jojobasomes Raw Material Specifications
---------------------------------------
PRODUCT NAME: JOJOBA OIL COLORLESS
Specifications for Jojoba Oil Colorless as a Raw material
for the manufacturing of Jojobasomes (JJS)
SPECIFICATION ANALYTICAL METHOLD TOLERANCE
- ------------------------------------------------------------------------------
<s> <c> <c>
Acid Value, mg KOH/g AOCS Official Method, Cd 3a-63 1.0 max.
Appearance, 25- 40 C Clear, Colorless
Color, Lovibond AOCS Official Method, Cc 13b-45 1.0Y/0.1 R Max
Odor, 25-40 C Nearly Odorless
Peroxide Value, meq/kg AOCS Offical Method, Cd 8-53 1.0 max
Refractive Index (40 C) AOCS Offcial Method, Cc 7-25 1.4580-1.4600
Specific Gravity (25 C) AOCS Official Method, Cc 10a-25 0.862-0.866
===========================================================================
EXHIBIT B
Manufacturing Cost of Jojobasomes
PRICE PER
SUBJECT PRODUCT KILOGRAM
------------------------------------
1. Encapsulated Jojoba Oil
(2.500 kilogram batch) $ 6.00 per kilogram
2. Encapsulated Jojoba Oil
(1400 kilogram batch) $ 8.00 per kilogram
3. Encapsulated Jojoba Oil
(1000 kilogram batch) $ 9.50 per kilogram
4. Encapsulated Jojoba Oil
(400 kilogram batch) $16.00 per kilogram
EXHIBIT C
Confidentiality Agreement
CONFIDENTIALITY AGREEMENT
-------------------------
IGI, Inc., a corporation organized and existing under the laws of the State
of Delaware, together with its affiliates and subsidiaries, having a place
of business at Wheat Road & Lincoln Avenue, Buena, New Jersey 08310
(hereinafter "IGI") and Desert Whale Jojoba Company, a corporation
organized and existing under the laws of the State of Tuscon, AZ and having
a place of business at 2101 East Beverly Street (hereinafter "DESERT
WHALE" agree that IGI has developed certain information and products
relating to lipid vesicles and absorbents (hereinafter "IGI INFORMATION"
and "IGI" PRODUCTS") which IGI considers confidential and in which IGI has
a proprietary interest, and that DESERT WHALE also has developed certain
information and products (hereinafter designated "DESERT WHALE INFORMATION"
and "DESERT WHALE PRODUCTS") which DESERT WHALE considers confidential and
in which DESERT WHALE has a proprietary interest. DESERT WHALE wishes to
have access to some of the IGI INFORMATION for the limited purpose of
determining whether DESERT WHALE wishes to negotiate to acquire rights
under the IGI INFORMATION and PRODUCTS, and as part of the negotiations, IGI
may need access to some of the DESERT WHALE INFORMATION and PRODUCTS.
THEREFORE, THE PARTIES AGREE:
Each of the parties may disclose to each other certain of the IGI
INFORMATION or DESERT WHALE INFORMATION in its possession to evaluate the
possibility of entering into a business venture. Each party sahll accept
the disclosed INFORMATION, including results and procedures related to
tests using the PRODUCTS (hereinafter 'TEST DATA), or the PRODUCTS
themselves, on the following basis:
1. Disclosing Party warrants that it has title to and/or the right to
disclose its INFORMATION, PRODUCTS, and TEST DATA hereunder and has
the right to enter into this Agreement.
2. Receiving Party agrees to hold in confidence, and not to divulge to
anyone outside of DESERT WHALE or IGI, any and all INFORMATION,
PRODUCTS, and TEST DATA it receives in writing from Disclosing Party
for a period of five (5) years from the signing of
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this Agreement, except such INFORMATION, PRODUCTS, or TEST DATA which
Receiving Party establishes by competent written proof:
a) is in the public domain at that time of disclosure;
b) becomes, after disclosure, part of the public domain by
publication or otherwise, except by violation of the Agreement
by Receiving Party;
c) was know by Receiving Party at the time of receiving the
INFORMATION or PRODUCTS, or TEST DATA, as reflected in written
materials in the possession of Receiving Party at the time of
disclosure, and was not acquired or received directly or
indirectly from Disclosing Party;
d) is rightfully furnished to Receiving Party after disclosure by
a third party, provided that such INFORMATION, PRODUCTS , or
TEST DATA was not directly or indirectly from Disclosing Party
under an obligation of confidence, or;
e) is developed by Receiving Party independent of INFORMATION,
PRODUCTS, or TEST DATA received from Disclosing Party.
3. Receiving Party agrees that it will use the INFORMATION, PRODUCTS, or
TEST DATA which it is required hereunder to keep confidential for no
purpose other than the aforesaid purpose, without first entering into an
agreement with Disclosing Party covering the use thereof.
4. Receiving Party agrees it will keep a record of any and all copies it
makes of the INFORMATION and TEST DATA it receives, and, upon request, will
return to Disclosing Party all available documents pertaining to the
Disclosing Party's INFORMATION, and TEST DATA including but not limited to
drawings, documents, and apparatus and other things which it received from
Disclosing Party, and all copies thereof, except Receiving Party may keep
one (1) copy for its corporate files for purposes of complying with this
Agreement.
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5. Receiving Party agrees to limit disclosure and access to the
INFORMATION, PRODUCTS, or TEST DATA it receives only to employees of
Receiving Party or its affiliates. Receiving Party further agrees to treat
the INFORMATION, PRODUCTS, or TEST DATA it receives with same degree of
care it treats its own proprietary information.
6. Receiving Party agrees that it will not attempt to chemically analyze
samples of the PRODUCT which may be provided by Disclosing Party, except as
is necessary to carry out the purpose of this Agreement.
7. INFORMATION and TEST DATA orally conveyed to Receiving Party by
Disclosing Party shall be deemed Confidential for a period of ninety (90)
days. Disclosing Party has the option of providing a written disclosure of
such INFORMATION or TEST DATA within said ninety (90) day period, and if
said written disclosure is provided, the INFORMATION or TEST DATA shall be
treated as if it were originally supplied in writing.
8. This Agreement creates no rights or obligations which are not
specifically set forth herein.
Accepted and agreed to:
IGI<INC> Desert Whale Jojoba Company Inc.
By: John Ambrose BY: /s/
----------------------- -----------------------------
Title President & CEO Title: VICE PRESIDENT
----------------------- -----------------------------
Date: 11/06/01 Date: 10-10-01
----------------------- -----------------------------
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