Exhibit 10.2
Production Agreement
For The Processing of Branded Milk Products
1. Introduction. This Agreement is made this 15th day of September
2005, by and between
A. Bravo! Foods International Corp. (Bravo!)
11300 U.S. Highway 1, Suite 202
North Palm Beach, Florida 33408
Registered in the State of Delaware No. 2619440
Vice President, General Counsel, Corporate Secretary:
Roy D. Toulan, Jr.
B. Oman National Dairy Products Co.Ltd. (S.A.O.G)
P.O.Box 610, Ruwi, Postal Code 112, Sultanate of Oman
Tel: (968) 591125, Fax : (968) 592147 / 590129
General Manger: Ram N Ramachandran
2. Considerations. The parties in entering into this Agreement
have duly considered the following facts and events:
2.1 By a Licensing Agreement with Marvel Enterprises, Inc. (Marvel
Comics), dated, September 1, 2005 (the "Marvel License"),
Bravo! has the licensed rights to utilize certain property of
Marvel Comics, consisting of the fictional cartoon characters,
including the names of such characters and all artwork
associated with such characters (the Marvel Licensed Property),
and other licensed property which Bravo! and Oman National
Dairy Products Co. Ltd. from time to time may agree to
incorporate into this Agreement, as set forth and amended in
Schedule 2.1 attached to this Agreement.
2.2 Bravo! has obtained registered trademarks for Slammers(r)
Fortified Reduced Fat Milk, and Slim Slammers(r) Low Fat Milk
including all associated artwork (the Bravo! Licensed
Property).
Bravo! has the rights to utilize the Marvel Licensed Property and the
Bravo! Licensed Property in connection with the advertising and
promotion, manufacture, distribution and sale of milk products,
including novelty frozen milk products (collectively, the Branded
Milk Products).
2.3 Bravo! has developed ingredient formulas for flavored milks
(Flavor Ingredients) for use in conjunction with the production
of Branded Milk Products.
2.4 Bravo! has designed a program to assist Oman National Dairy
Products Co. Ltd. in the processing and sale of the Branded
Milk Products including promotional, marketing, product
development and design support for advertising and promotion.
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2.5 Oman National Dairy Products Co. Ltd.is desirous of
participating in the promotion, processing, manufacture,
distribution and sale of the Branded Milk Products and other
branded food products within Oman National Dairy Products Co.
Ltd.network area of processing and distribution (Territory),
pursuant to the terms and conditions of this Agreement.
2.6 Definitions. As used in this Agreement, the listed terms have
the following meanings:
2.6.1 "Approved Suppliers" means a supplier of Flavor
Ingredients or packaging for the Branded Milk Product
that is approved in writing by Bravo!, which approval
shall not be unreasonably withheld.
2.6.2 "Branded Milk Products" means the milk products for which
Bravo! has the licensed rights to utilize Licensed
Property in connection with the advertising and
promotion, manufacture, distribution and sale thereof.
2.6.3 "Flavor Ingredients" means ingredient formulas and actual
flavors for flavored milks for use in conjunction with
the processing of Branded Milk Products, which have been
developed by Bravo! in conjunction with Oman National
Dairy Products Co. Ltd. for use with the Marvel Licensed
Property and Bravo! Licensed Property. The parties agree
and acknowledge that the Flavor Ingredients will be
formulated to meet the flavor profiles appropriate for
local taste preferences.
2.6.4 "Initial Term" means the following:
2.6.4.1 A term on two (2) years with respect to the
Bravo! Licensed Property and any Other Licensed
Property that is not dependent upon the Marvel
License
2.6.4.2 a term coterminous with the initial term of the
Marvel License, which expires March 31, 2007,
with respect to the Marvel Licensed Property and
any Other Licensed Property that is dependent
upon the Marvel License
2.6.5 "Kit" or "Kits" means the basic quantity of Flavor
Ingredients for a specified flavor plus the Production
Rights as granted herein. The compensation paid to Bravo!
for the grant of the Production Rights under this
Agreement shall be paid by Oman National Dairy Products
Co. Ltd. purchase of Kits from Bravo!. The charge for
each Kit shall be for specified Flavor Ingredients and
for the grant of Production Rights, as set forth in and
as governed by Section 3.9 herein.
2.6.6 "Marvel Licensed Property" refers to the fictional
cartoon characters of Marvel Comics and other properties
that may be added from time to time to Schedule 2.1,
including the names of such characters and all artwork
associated with such characters. The Marvel License
requires either
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multiple characters on packaging or at least four
separate packages (flavors) each bearing a different
Marvel character.
2.6.7 "Other Branded Food Products" and "Other Licensed
Property" shall mean food products other than Banded Milk
Products that in the future may be included within the
Marvel Licensed Property and the Bravo! Licensed
Property.
2.6.8 "Production Rights" means the right to process,
manufacture, promote, distribute, sell and otherwise
market the Branded Milk Products in the Territory.
2.6.9 "Territory" means Oman National Dairy Products Co. Ltd.
areas of processing and distribution as governed in
Schedule 2.7.9 attached to this Agreement.
3. Basic Agreement. In consideration of the mutual promises
contained in this Agreement, the parties agree to the following:
3.1 Grant of Rights. Bravo! hereby grants to Oman National Dairy
Products Co. Ltd. the right to process, promote, distribute,
sell and otherwise market the Branded Milk Products (Production
Rights) in the Territory, as set forth in Schedule 2.7.9. The
grant of Production Rights provided herein does not constitute
a license, sublicense or assignment of any license or
intellectual property to Oman National Dairy Products Co. Ltd..
Oman National Dairy Products Co. Ltd. shall be a co-
packer/supplier of the branded Milk Products. The parties to
this Agreement, from time to time, may agree to the grant of
Production Rights to Oman National Dairy Products Co. Ltd.for
Other Branded Food Products, as set forth and subject to the
terms and conditions contained in Schedule 3.1, attached to
this Agreement.
3.2 Limitation of Grant. Subject to the provisions of Schedule
2.7.9 and Schedule 3.1, this Agreement and the rights granted
hereunder apply solely to the Branded Milk Products and nothing
contained in this Agreement precludes or limits in any way the
right of Oman National Dairy Products Co. Ltd.or Bravo! to
process, promote, distribute, sell and otherwise market, either
directly or indirectly, any of its other non-dairy products or
services, even though such other products may be functionally
similar and utilize components common to the Branded Milk
Products.
3.3 Term of Agreement. This Agreement shall be effective as of the
date first set forth above and, unless otherwise terminated in
accordance with the provisions hereof, and shall remain in
effect for a term or two years with respect to the Bravo!
Licensed Property, and otherwise coterminous with the Marvel
License , the initial term of which expires March 31, 2007 This
Agreement may be renewed at the end of the Initial Term or any
extension by mutual agreement of the parties for a like term
only if Oman National Dairy Products Co. Ltd. is not in default
of any if its obligations under this Agreement. The renewal of
this Production Agreement with respect to the Marvel Licensed
Property shall be for a term
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coterminous with the renewal term of the Bravo! - Marvel Comics
License Agreement.
3.4 Processor's Obligations. Oman National Dairy Products Co. Ltd.
shall use reasonable commercial best efforts to actively
promote the marketing, sale and distribution of the Branded
Milk Products within the Territory. Without in any way limiting
the generality of the foregoing, Oman National Dairy Products
Co. Ltd. shall:
3.4.1 Process, distribute and sell the Branded Milk Products in
a manner consistent with the highest industry standards
and procedures to insure the production, distribution and
sale of Branded Milk Products of the consistently highest
quality.
3.4.2 Use reasonable commercial best efforts to promote sales
of the Branded Milk Products in the Territory.
3.4.3 Oman National Dairy Products Co. Ltd. may request the
cooperation of Bravo! with respect to specific
promotions, which cooperation shall be pursuant to a
future agreement between the parties to this Agreement.
3.4.5 Purchase and maintain the minimum inventory of Flavor
Ingredients, necessary to process the Branded Milk
Products, and approved packaging, as set forth in
Schedule 3.4.5 of this Agreement.
3.4.6 Purchase all its requirements for Flavor Ingredients from
Bravo! and Packaging Supplies from suppliers approved by
Bravo! (Approved Suppliers). Such approvals shall be in
writing by Bravo!. Oman National Dairy Products Co. Ltd.
may change suppliers with the written approval of the
parties. Nothing in this Agreement waives Oman National
Dairy Products Co. Ltd. right to return non-conforming
Flavor Ingredients directly to an Approved Supplier.
3.4.7 Use advertising, promotional materials, media releases,
marketing materials and product packaging for the Branded
Milk Products approved in writing by Bravo! and Marvel
Comics.
3.4.8 Undertake approved appropriate promotional and
advertising campaigns at Oman National Dairy Products Co.
Ltd. expense and at its discretion to stimulate sales of
the Branded Milk Products within the Territory, using
materials developed in cooperation with Bravo!.
3.4.9 Not engage in the sale, distribution, or processing of
other branded flavored milk products within the
Territory, during the Initial Term, which are competitive
with the Branded Milk Products or Other Branded Food
Products, without the written approval of Bravo!, which
consents will not be withheld unless such activity would,
in the reasonable judgment of Bravo!, prevent Oman
National Dairy Products Co. Ltd. fulfilling its
obligations under this Agreement. Nothing in this Section
3.4.9 shall be
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deemed to prohibit Oman National Dairy Products Co. Ltd.
from processing, marketing, distributing or selling its
competing branded products that are currently sold in the
Territory. Should Oman National Dairy Products Co. Ltd.
violate the terms of this Section 3.4.9, the grant of
Production Rights herein shall not be exclusive.
3.4.10 Use its best reasonable efforts to protect patents,
trademarks, copyrights and proprietary rights of the
owners in and to the Marvel Licensed Property and Bravo!
Licensed Property; Oman National Dairy Products Co. Ltd.
shall promptly report any infringements of which Oman
National Dairy Products Co. Ltd. becomes aware and shall
cooperate with Bravo! in its efforts to protect its
intellectual property rights.
3.4.11 Submit reports to Bravo! as follows:
(a) at least thirty (30) days prior to the start of
each calendar quarter, a forecasted schedule of
Flavored Ingredients to be delivered for the next
calendar quarter.
(b) on a monthly basis, such other reports regarding
matters limited to the purposes of this Agreement,
including sales reports for the Branded Milk
Products, and payable and purchasing history
reports for Flavor Ingredients and packaging
supplies.
3.4.12 Promptly pay invoices for Kits submitted to it by Bravo!
as provided in Section 3.6.2 herein.
3.5 Processor's Expenses. Unless otherwise agreed in writing, no
compensation or other expenses shall be paid by Bravo! to Oman
National Dairy Products Co. Ltd for the performance of the
duties set forth in this Production Agreement. Oman National
Dairy Products Co. Ltd. sole compensation will arise from the
sale of the Branded Milk Products.
3.6 Ordering Procedures. During the term of this Agreement, Oman
National Dairy Products Co. Ltd. shall order Kits only pursuant
to the procedures set forth in this section.
3.6.1 Oman National Dairy Products Co. Ltd. shall not place a
purchase order for Flavor Ingredients directly with an
Approved Supplier of such goods.
3.6.2 To order Kits including Flavor Ingredients, Oman
National Dairy Products Co. Ltd. shall follow the
procedures set forth in Schedule 3.6.2 attached to this
Agreement.
3.7 Obligations of Bravo!. During the term of this Agreement,
Bravo! shall have the following obligations:
3.7.1 Assist Oman National Dairy Products Co. Ltd. in product
development, new product line extension and secure all
appropriate approvals from
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Marvel Comics, as well as responsibility for packaging
design and development and Marvel Comics' approvals for
such packaging design.
3.7.2 Payment of all guaranteed fees and royalties pursuant to
the Marvel License.
3.7.3 Provide marketing support for advertising by Oman
National Dairy Products Co. Ltd., within the guidelines
set forth in this Section 3.7.3. Where appropriate and
based upon the written agreement of the parties, Bravo!
shall assist in the creative aspects of the development
and production of advertising and promotion concepts.
Oman National Dairy Products Co. Ltd. shall be
responsible for the development and media costs of such
advertising and promotions.
3.7.4 Where appropriate and upon the written agreement of the
parties to this Agreement, Bravo! shall assist Oman
National Dairy Products Co. Ltd. in the development of
marketing support programs to help increase sales and
profits for the Branded Milk Products and Other Branded
Food Products, including co-op marketing programs.
3.8 Orders and Minimum Inventory. Upon execution of this Agreement,
Oman National Dairy Products Co. Ltd. shall have the following
obligations concerning orders and inventory:
3.8.1 Oman National Dairy Products Co. Ltd. shall purchase
approved packaging and Kits used to process the Branded
Products and Other Branded Food Products in amounts not
less than those set forth in Schedule 3.4.5 attached to
this Agreement, as provided in Schedule 3.4.5 attached
to this Agreement.
3.8.2 Oman National Dairy Products Co. Ltd. shall order Kits
in accordance with the procedures established by and
between Oman National Dairy Products Co. Ltd. and Bravo!
as set forth in Section 3.6 of this Agreement.
3.8.3 Flavor Ingredients and packaging supplies shall be
shipped to Oman National Dairy Products Co. Ltd. without
any risk of loss to Bravo!. All freight, insurance, duty
and value added, sales, use and excise taxes applicable
to or levied on the sale of such Flavor Ingredients and
packaging supplies shall be paid by Oman National Dairy
Products Co. Ltd. in addition to the current prices for
such Flavor Ingredients and supplies. The parties agree
and acknowledge that, unless it is commercially
unreasonable to do so, or unless otherwise agreed to by
the parties, the Flavor Ingredients and supplies shall
be sourced FOB from facilities of Approved Suppliers
that are closest to Oman National Dairy Products Co.
Ltd.
3.9 Prices and Payment. Oman National Dairy Products Co. Ltd. shall
be charged an invoice amount by Bravo! for Kits and Oman
National Dairy Products Co. Ltd. shall pay such invoice(s) in
accordance with the following:
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3.9.1 Such invoiced amounts shall be based upon and consist of
the following components: (a) a fee for Flavor
Ingredients and (b) a fee for Production Rights.
3.9.2 The pricing reflected in such invoices shall be in
accordance with the matters set forth in Schedule 3.9.2,
attached to this Agreement.
3.9.3 Payment of invoices by Oman National Dairy Products Co.
Ltd. shall be in accordance with the procedures set
forth in Schedule 3.6.2 attached to this Agreement.
4. Other Material Provisions. In addition to the foregoing, the
parties for good and valuable consideration agree as follows:
4.1 Insurance: During the term of this Agreement, Oman National
Dairy Products Co. Ltd. shall obtain and maintain, at its own
expense, adequate product liability insurance with limits of
$2,000,000 for each occurrence. Upon written request, Oman
National Dairy Products Co. Ltd. shall produce to Bravo! a
fully paid policy or certificate of insurance evidencing the
insurance coverage stipulated in this Section. Oman National
Dairy Products Co. Ltd. shall use its best efforts to increase
the coverage stipulated herein to $3,000,000 as soon as
possible but in no event later than January 1, 2006.
4.2 Indemnification.
4.2.1 Except with respect to claims arising by reason of
defective Flavor Ingredients, Oman National Dairy
Products Co. Ltd. shall, at its expense, defend any
claim, action or proceeding instituted against Bravo!
and Marvel Comics for any injury or damage to consumers
of the Branded Milk Products. Oman National Dairy
Products Co. Ltd. shall hold harmless Marvel Comics and
Bravo! with respect to such injury or damage to such
consumers arising out of or as a result of the
processing, distribution or sale of the Branded Milk
Products and Other Branded Food Products by Oman
National Dairy Products Co. Ltd., Such indemnification
shall include, but not be limited to, monetary damages
and costs awarded by final judgment in such claim,
action or proceeding, as well as attorneys fees.
4.2.2 Bravo! shall, at its expense, defend any claim, action
or proceeding instituted against Oman National Dairy
Products Co. Ltd. and hold Oman National Dairy Products
Co. Ltd. harmless for any injury or damage to Oman
National Dairy Products Co. Ltd. arising out of or as a
result of Oman National Dairy Products Co. Ltd. use of
the Marvel Licensed Property or the Bravo! Licensed
Property in accordance with and pursuant to the terms
and conditions of this Agreement.
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4.2.3 Bravo! shall, at its expense, replace any defective
Flavor Ingredients that are not replaced by the Approved
Supplier, where the defect is the responsibility of such
Approved Supplier.
4.3 Name and Trademarks.
4.3.1 All trademarks, trade names, and copyrights granted or
applied for in connection with the Marvel Licensed
Property or the Bravo! Licensed Property and related
documents are and shall remain the sole property of
Bravo! or Marvel Comics, as appropriate. Oman National
Dairy Products Co. Ltd. will not by its operations
hereunder acquire any right, title or interest thereto.
Oman National Dairy Products Co. Ltd. shall not alter or
remove any trade name, trademark or other identification
marks, symbols or labels, nor change or alter approved
artwork for packaging, promotional materials or
advertising in connection with the Branded Milk
Products, without the written consent of Bravo!.
4.3.2 Use of any of the Marvel Licensed Property or the Bravo!
Licensed Property on any sales promotion, advertising,
stationery or other media produced by or for Oman
National Dairy Products Co. Ltd. may be done only with
the express written consent of Bravo!. Any actions or
representations made by Oman National Dairy Products Co.
Ltd. not expressly contained in this Agreement or in
published or written information provided by Marvel
Comics or Bravo! are made at Oman National Dairy
Products Co. Ltd. risk and shall constitute a material
default of this Agreement.
4.3.3 Oman National Dairy Products Co. Ltd. shall have the
right to place its logo, and the logo of a regional
subsidiary where appropriate, on the Branded Milk
Products or Other Branded Foods Products. The size and
location of such logo shall be subject to the written
approval of Bravo!, which approval shall not be
unreasonably withheld.
4.3.4 Oman National Dairy Products Co. Ltd. shall incorporate
the following information on all labels and promotional
materials used in connection with the Branded Milk
Products and Other Branded Food Products:
"Manufactured under a production agreement with
Bravo! Brands International Ltd.
www.bravobrands.com"
4.4 Early Termination of This Agreement. The following terms and
conditions shall control the circumstances under which this
Agreement may be terminated before the end of the term hereof.
4.4.1 If either Party to this Agreement shall breach its
obligations to perform its duties under this Agreement
or any Party to this Agreement shall be in material
default of any of the terms and conditions of this
Agreement, the party not in default may terminate this
Agreement by sending written notice to such effect to
the defaulting party, at least thirty (30) days prior to
the effective date thereof. Such termination shall be
effective on the date set forth in the notice,
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unless such defaulting party cures such default or
breach within such thirty (30) day period. Such right of
termination shall be in addition to and shall not
prejudice any other rights or claims that the
nondefaulting party may have against the defaulting
party either at law or in equity.
4.4.2 In the event of the insolvency, bankruptcy or inability
to pay debts as and when due, or an assignment by any
party to this Agreement for benefit of creditors, or the
appointment of a receiver for all or a substantial part
of its business or property, or an attachment of any of
its assets lasting more than thirty (30) days, the non-
event party may, at its option, at any time after the
occurrence of such an event, immediately terminate this
Agreement by mailing written notice to the other party
that it elects to do so.
4.4.3 In the event that Marvel Comics terminates the Marvel
License and the Marvel License is not reinstated within
ninety (90) days, this Agreement shall be void at the
option of Oman National Dairy Products Co. Ltd. and,
except as to the consequences of termination set forth
herein, shall have no further binding effect.
4.4.4 Oman National Dairy Products Co. Ltd. has and will
continue to operate within the laws governing the
country.
4.4.5 In the event that Oman National Dairy Products Co. Ltd.
is unable to sell, despite reasonable commercial
efforts, sufficient Branded Milk Products over the
initial six (6) months of the Initial Term to utilize at
least 70% of the minimum ordered Flavor Ingredients for
that period, and 100% of the minimum ordered Flavor
Ingredients for next six (6) month period, Bravo! shall
have the option of terminating this Agreement upon four
(4) months written notice.
4.5 Consequences of Termination. Upon the termination of this
Agreement pursuant to Section 4.4 of this Agreement, the
respective parties shall have the following rights and
obligations:
4.5.1 Oman National Dairy Products Co. Ltd. shall return to
Bravo!, at Oman National Dairy Products Co. Ltd.
expense, all furnished proprietary, confidential or
material containing the Licensed Property for which Oman
National Dairy Products Co. Ltd. has not incurred a
purchase expense.
4.5.2 The parties shall not by reason of the termination of
this Agreement, for any reason whatsoever, be liable to
each other for compensation, reimbursement or damages on
account of present or prospective loss of profits on
sales, goodwill, creation of clientele, salaries,
expenditures, investments or commitments made in
connection herewith.
4.5.3 The provisions of this Section in no way will prohibit
or relieve Oman National Dairy Products Co. Ltd. from
continuing other business after the termination of this
Agreement or to continue to support any of Oman National
Dairy Products Co. Ltd. commitments and/or obligations.
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4.6 Processor as an Independent Contractor. Oman National Dairy
Products Co. Ltd. shall be deemed an independent contractor
hereunder and, as such, Oman National Dairy Products Co. Ltd.
shall not be nor hold itself out as an employee or agent to or
representative of Bravo! or Marvel Comics. Oman National Dairy
Products Co. Ltd. acknowledges that it does not have any
authority to act for or in the name of Bravo! or Marvel Comics
or to commit Bravo! or Marvel Comics in any manner whatsoever.
Oman National Dairy Products Co. Ltd. indemnifies and holds
harmless Bravo! and Marvel Comics for any damage or expenses
arising from acts of Oman National Dairy Products Co. Ltd. in
contravention to this Section.
4.7 Nonassignability. Neither this Agreement nor any rights or
obligations hereunder shall be assignable or transferable, in
whole or in part, by operation of law or otherwise without the
prior written consent of the other party, except that Bravo!
may assign this Agreement without Oman National Dairy Products
Co. Ltd. consent to a parent, to a wholly owned subsidiary or
in connection with a transfer of all or substantially all its
assets. Further, except as provided in Schedule 4.7 attached to
this Agreement, Oman National Dairy Products Co. Ltd. shall
not, without the prior written consent of Bravo! (which consent
shall not be unreasonably withheld), enter into any agency
agreement, co-pack or other or arrangement with respect to the
processing, marketing, distribution or sale of the Branded Milk
Products under this Agreement with non subsidiaries or non
affiliates. Subject to the above, this Agreement shall be
binding upon and shall inure to the benefit of the successors
and assigns of the respective parties hereto.
4.8 Notices. Unless otherwise specified in this Agreement, all
notices required hereunder shall be in writing and shall be
dispatched by prepaid first class mail, commercial telegraph or
commercial international expedited delivery service to the
addresses of the respective parties first set forth in this
Agreement, or by verified facsimile or E-mail transmission, if
such number or address has been provided in accordance with
this Section. Any notice so given shall be deemed duly
delivered (i) if by mail, seven days after mailing (except in
the event of the inability of the postal service to deliver
mail on a national basis), (ii) if by telegraph, facsimile or
E-mail, upon transmission (iii) if by delivery service, upon
delivery. The parties hereto may change its address for the
purposes of this Agreement by giving the other party written
notice.
4.9 Force Majeure. In the event of fire, earthquake, explosion,
strikes, war, act of any government agency, material or labor
shortage, transportation contingency, act of God or any other
causes beyond the control of Bravo!, or Force Majeure, Bravo!
shall not be liable for any default in the performance of this
Agreement arising therefrom and Oman National Dairy Products
Co. Ltd. is bound to accept the delayed shipment or delivery
made within a reasonable time. The same causes shall be
sufficient excuse for the failure of Oman National Dairy
Products Co. Ltd. to take and pay for the Flavor Ingredients
ordered under this Agreement, except such as are in transit or
have been received by Oman National Dairy Products Co. Ltd.,
until such contingencies are removed. In the event such
conditions cannot be corrected by the party affected within
thirty (30) days from
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the date of the occurrence of the condition, then the other
party has the option to terminate this Agreement. The party
claiming relief shall immediately notify the other parties in
reasonable detail and estimate the interval necessary to
correct such condition.
4.10 Enforceability/Governing Law.
4.10.1 If any provision or any portion of any provision of this
Agreement shall be held invalid, illegal or
unenforceable under either the laws of the United States
or the country in which Oman National Dairy Products Co.
Ltd. facilities are located, the remainder of this
Agreement shall remain valid and enforceable. Any waiver
by any party of any provision or breach of any provision
of this Agreement must be in writing. The failure of any
party to enforce at any time any provision hereof shall
not be construed to be a waiver of the right to enforce
such provision or of the provision itself.
4.10.2 If any party deems it necessary to bring suit or retain
an attorney to enforce its rights under this Agreement,
the prevailing party in such dispute shall be entitled
to recover from the other party, in addition to any
judgment or award, reasonable attorneys' fees and court
costs related to such dispute.
4.10.3 This Agreement shall be construed in accordance with the
laws of the United States (Delaware), and the parties
agree to resolve any disputes derived from the
interpretation, execution or enforcement of this
Agreement by means of Arbitration in accordance with the
International Arbitration Rules of the American
Arbitration Association.
4.11 Entire Agreement. This Agreement contains the entire
understanding between and among the parties hereto with respect
to the subject matter hereof and supersedes any and all prior
contracts, correspondence and discussions. This Agreement can
be altered, amended or varied only by a written document signed
by responsible officers of each party.
4.12 Preeminence of Licensing Agreement. In the event of any
conflict between a provision of this Agreement and the Marvel
License with respect to the Marvel Licensed Property and the
Branded Milk Products, the Marvel License shall control. Oman
National Dairy Products Co. Ltd. acknowledges that it has
reviewed the Marvel License and agrees to be bound by the terms
and conditions thereof with respect to Oman National Dairy
Products Co. Ltd. participation in the production, manufacture,
promotion, distribution and sale of the Branded Milk Products,
which incorporate the Marvel Licensed Property. Oman National
Dairy Products Co. Ltd. agrees to execute a document that may
be reasonably requested to effect the provisions of this
Section.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
Bravo! Foods International Corp.
By /s/
________________________________
Roy D. Toulan, Jr.
Vice President, General Counsel
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF ESSEX
On this 15th day of September 2005, before me, the undersigned officer,
personally appeared Roy D. Toulan, Jr. known personally to me and
acknowledged that he is the Vice President, General Counsel of the above
named corporation, and that he, as such officer, being authorized so to do,
executed the foregoing instrument for the purposes therein contained, by
signing on behalf of the named as such officer.
IN WITNESS WHEREOF I have hereunto set my hand and official seal.
/s/
________________________________
Notary Public
(Notary Seal) My Commission Expires:__________
Oman National Dairy Products Co. Ltd.
By /s/
________________________________
General Manger: Ram N Ramachandran
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Schedule 2.1
Licensed Property
The following characters as they appear in Marvel's comic book publications
sold at retail (excluding characters and/or the portrayal of characters in
comics based upon motion picture, television or home video versions)
("Marvel Classic Characters") limited to:
Marvel Heroes Classic Characters: Classic Marvel artwork for the co-mingled
character program known as Marvel Heroes and taken only and exclusively
from the dedicated Marvel Heroes Style Guide, as in effect from time to
time during the Term of the Agreement, featuring the character families of
Spider Man, X-Men, Hulk, Fantastic Four, Silver Surfer, Captain America,
Thor, Iron Man, Daredevil, Namor, Dr. Strange and Nick Fury as well as
other character as may be added to this program and featured in its style
guide from time to time. Marvel Heroes is specifically a co-mingled
character program meaning that all Marvel Heroes licenses shall feature
multiple characters in either of the two following ways: a) not less than
three equally represented characters on a single SKU (for example a bed
duvet, T-shirt or play-tent) or, subject to Marvel approval in writing on a
case-by-case basis, b) not less than four characters, one character per
SKU, equally represented on a repeat purchase collectible SKU line (for
example ballpoint pens, lollipops) whereby the product line is conceived,
branded, marketed, packaged and merchandised as a collectible multiple
character product line at all times.
Bravo! Licensed Property
Slammers(R) including all associated artwork, logo and trade dress
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Schedule 2.7.9
Territory
The Territory shall consist of the following:
Saudi Arabia, Kuwait; Bahrain; Qatar; Oman; United Arab Emirates;
Lebanon; Egypt; Jordan, Yemen,
Oman National Dairy Products Co. Ltd. shall have processing
(manufacturing) rights in the Territory for the Branded Milk Products and
Other Branded Food Products. So long as Oman National Dairy Products Co.
Ltd is not in default of any material provision of this Agreement, no other
processor shall be granted production rights for the Branded Milk Products
in Territory without the written approval of Oman National Dairy Products
Co. Ltd.
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Schedule 3.1
Other Branded Food Products
The parties to this Agreement recognize that, from time to time,
either party may desire to introduce a non Branded Milk Product into the
Territory utilizing the Marvel Licensed Property and/or the Bravo! Licensed
Property ("Other Branded Food Products"). The introduction of such Other
Branded Food Products shall be allowed only upon the agreement of the
parties.
A party desiring to add Other Branded Food Product to this Agreement
for dale and distribution in the Territory shall first submit a written
proposal to the other party giving sufficient information concerning the
proposed Other Branded Food Products and the market to be addressed to
enable the receiving party to make an informed decision concerning the
addition of such product to this Agreement. An agreement of the parties
concerning the addition of Other Branded Food Products to this Agreement
shall be in writing.
Any agreement of the parties to introduce Other Branded Food Products
in the Territory that utilize Marvel Licensed Property shall be subject to
approval by Marvel Comics, and the appropriate amendment of the Marvel
License to add such Other Branded Food Products as "Licensed Articles"
under the Marvel License.
If Oman National Dairy Products Co. Ltd. does not desire to introduce
such Other Branded Food Products suggested by Bravo!, then Bravo! shall be
free to seek other producers of the suggested Other Branded Food Products
for sale and distribution within the Territory.
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Schedule 3.4.5
Initial Order And
Minimum Order Requirement
Oman National Dairy Products Co.Ltd. shall submit an initial order
for 2,100Kg Kits contemporaneous with the execution of this Agreement (the
"Initial Order"). Oman National Dairy Products Co.Ltd. Shall have the
discretion to determine the number of Kits for each flavor ordered, so long
as the total number of Kits ordered for the Initial Order is at least
2,100Kg. Payment for the initial order shall be made contemporaneous with
the execution of this Agreement by wire transfer or Letter of Credit to the
designated US account of Bravo!
Subsequent to the Initial Order, the minimum number of Kits that
shall be ordered in the future by Oman National Dairy Products Co.Ltd.
shall be 1,500Kg (the "Minimum Order Requirement"). This Minimum Order
Requirement shall be met by Oman National Dairy Products Co.Ltd. for each
calendar quarter during the term of this Agreement.
The first quarter during which the Minimum Order Requirement applies
shall commence with the calendar quarter starting January 2006.
Oman National Dairy Products Co.Ltd. shall have the discretion to
place one or more orders for Kits during each such calendar quarter and to
determine the number of Kits for each flavor ordered, so long as the total
number of Kits ordered for all flavors during each calendar quarter is at
least equal to the Minimum Order Requirement. The Parties, by mutual
agreement, may make adjustments to the Minimum Order Requirement, where and
when appropriate, and may set different Minimum Order Requirements for
different selling seasons, based upon a demonstrated history of significant
fluctuation in seasonal sales.
The Minimum Order Requirement, and any adjustment thereto, shall be
in writing and executed by the Parties to this Agreement and shall be
deemed incorporated by reference herein.
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Schedule 3.6.2
Kit Ordering and Payment Procedures
1. Oman National Dairy Products Co.Ltd. shall forward a purchase order
to the address to be designated in writing by Bravo!, who shall be
responsible for the processing of such order.
2. Upon receipt of a copy of the purchase order, Bravo! shall issue
promptly an invoice for the appropriate amount, payable in U.S.
Dollars by Oman National Dairy Products Co.Ltd., and immediately
forward such invoice to Oman National Dairy Products Co.Ltd.
3. Bravo! shall record Oman National Dairy Products Co.Ltd. purchase
order in its books and forward such order to the appropriate Approved
Supplier of Flavor Ingredients, with instructions to commence
production of the Flavor Ingredients immediately. The Approved
supplier shall be instructed not to ship the Flavor Ingredients
without the prior authorization of Bravo!.
4. Upon Oman National Dairy Products Co.Ltd. receipt of the Bravo!
Brands International invoice, Oman National Dairy Products Co.Ltd.
shall cause to be issued an international Letter of Credit for the
benefit of Bravo! Brands International, exercisable upon the
presentation of evidence of the shipment of the Flavored Ingredients
by the Approved Supplier to Oman National Dairy Products Co.Ltd.. The
Letter of Credit shall be on terms and conditions satisfactory to and
approved by Bravo! Brands International.
5. Bravo! shall authorize the shipment of the Flavored Ingredients to
Oman National Dairy Products Co. Ltd. against irrevocable L/C.
6. The Production Rights granted by this Agreement attached to the
Flavored Ingredients ordered by Oman National Dairy Products Co.Ltd.
shall not become effective until such time as Bravo! authorizes the
Approved Supplier to ship the Flavored Ingredients to Oman National
Dairy Products Co.Ltd..
7. The parties anticipate that the time between the placement of an
order with the Approved Supplier of Flavor Ingredients and the
shipment of the Flavor Ingredients to Oman National Dairy Products
Co.Ltd. by the Approved Supplier shall not exceed 30 days.
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Schedule 3.9.2
Pricing
Kit Cost Components:
* Ingredients (excluding stabilizer, raw milk, Sugar, and
Coloring etc...)
* Production Rights Fee
Kit Size:
* 25 Kg
Kit Costs (USD):
Chocolate USD$ [REDACTED]
Other Flavors USD$ [REDACTED]
The listed prices are net of a US$00.00 per kit marketing fund allowance by
Bravo! Oman National Dairy Has agreed to review and adjust prices in March
2006 in anticipation of International Milk Prices reductions.
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Schedule 4.7
Agents, Assignees and Co-Packers
Oman National Dairy Products Co.Ltd. may utilize non subsidiary or
affiliated processors to process, market, distribute and sell the Branded
Milk Products in the Territory only upon the written modification of this
Schedule 4.7 by the parties to this Agreement. Bravo! recognizes the
potential need that Oman National Dairy Products Co.Ltd. may have to
utilize a co-pack arrangement to satisfy its business goals with respect to
this Agreement, and represents that its consent to such co-pack
arrangements shall not be unreasonably withheld.
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