EXHIBIT 10.32
AGREEMENT, dated as of March 31, 1996, by and between NATURAL JUICE
COMPANY (hereinafter referred to as "CHICAGO") and FRESH JUICE, INC.
(hereinafter referred to as "FJI").
WHEREAS, CHICAGO is in the business of selling and distributing fruit
and vegetable juice products and related items;
WHEREAS, FJI is in the business of manufacturing and packaging fruit
and vegetable juice products and related items;
WHEREAS, CHICAGO desires to engage a Company to supply fresh citrus
products for distribution in the United States; and
WHEREAS, FJI desires to provide fresh citrus products to Chicago,
IT IS NOW THEREFORE AGREED:
1. DURATION: This Agreement shall be for a five (5) year period from
the date hereof, with automatic renewals for two five (5) year terms unless
CHICAGO gives written notice to FRESH JUICE within sixty (60) days of the
expiration date of any term that CHICAGO intends not to renew this Agreement.
2. TERRITORY: CHICAGO has the exclusive distribution rights to
distribute any fresh citrus juice, prepared by or under the direction of FJI,
its successors and or assigns, sold to the Food Service Industry in the
following areas where CHICAGO delivers directly to customers: the Greater
Chicagoland area defined as Chicago and the surrounding six collar Counties,
the Greater Milwaukee area and Lake Geneva and the Jewel and Dominick's retail
stores, being the only retail exclusive exceptions permitted, in the above
defined area. In addition,
CHICAGO shall also have exclusive distribution rights for all current customers
(distributors) on Schedule "A" attached hereto and made part hereof.
FJI will not directly or indirectly sell to any other distributor or
entity for the distribution of fresh citrus products in CHICAGO's territory,
without the express written consent of CHICAGO so long as CHICAGO's volume
averages twenty (20) thousand gallons per month. CHICAGO shall not compete with
FJI except in the following states: Illinois, Indiana, Wisconsin, Michigan,
Minnesota and Ohio.
3. PRODUCTS DISTRIBUTION: CHICAGO agrees that it will distribute the
following products to be supplied by FJI under the NATURAL JUICE name during
the term of this Agreement in this territory.
FRESH SQUEEZED:
ORANGE JUICE
GRAPEFRUIT JUICE
PINK LEMONADE
LIMEADE
LEMON JUICE
LIME JUICE
OTHER FRESH JUICE PRODUCTS
CHICAGO is only required to purchase the above products that are part
of this Agreement. Nothing contained in this Agreement is intended to or shall
prevent CHICAGO from distributing other products to its customers. In the event
there is an insufficient amount of product to supply the requirements of FJI,
its subsidiaries and CHICAGO for such products, the product available shall be
shared by FJI, its subsidiaries and CHICAGO in a proportion equal to the
percentage of their requirements of such product over the prior three (3)
months, and CHICAGO shall be permitted to order the remainder of its
requirements from other sources until FJI is once again capable of providing
all of CHICAGO's requirements.
4. PRICING: The parties agree that CHICAGO shall pay the lesser
of:
(A) $1.00 per gallon over FJI's cost of production; or
(B) An amount equal to or less than the lowest price
charged to any customer of FJI, excluding co-pack
arrangements, provided however that with CHICAGO's
consent FJI may charge other customers a lower price
than CHICAGO without lowering CHICAGO's price.
CHICAGO's consent may be oral until such time as
CHICAGO advises FJI (in writing) that oral consent
is no longer effective; if CHICAGO so elects, then
any future consents must be in writing to be valid.
5. PAYMENT TERMS: CHICAGO agrees to pay FJI the gross invoice price of
products shipped plus or minus any credits within seventeen (17) days of
receipt of the product at CHICAGO's Wood Dale, Illinois facility.
6. RESPONSIBILITY OF FJI: FJI shall be responsible to perform
the following:
A. Supply CHICAGO's requirements of the fresh squeezed juices
described in paragraph (3) above and such other products as requested by CHICAGO
and agreed to by FJI, from time to time.
B. Comply with all pertinent regulations promulgated by the
Florida Department of Citrus, United States Department of Agriculture and other
regulatory agencies as applicable to manufacturing and shipping of fresh citrus
products.
C. FJI expressly warrants the merchantability of its products
and suitability for consumption of its products in accordance with standards
set by the Florida Department of Citrus.
D. FJI expressly warrants and represents that it shall not
allow any product set forth in paragraph 3 above, to be sold to or distributed
in any territory set forth in paragraph 2 of this agreement unless said product
is distributed by CHICAGO or CHICAGO gives its express written consent.
E. FJI warrants and represents that it is not currently a
party to any contract which would be inconsistent with its obligations to give
CHICAGO exclusive territorial distribution rights for its fresh squeezed citrus
products.
7. RESPONSIBILITIES OF CHICAGO: CHICAGO shall be responsible for the
following:
A. CHICAGO will be responsible to arrange all transportation
from FJI's plant to Chicago's distribution points. CHICAGO expressly accepts
all responsibility for the proper shipping and handling of the products from
FJI's plant to point of sale.
B. CHICAGO will place orders for products in accordance with
FJI's promulgated procedures, which FJI shall maintain in conformity with
industry standards.
C. CHICAGO shall order its fresh citrus products exclusively
from FJI on a year round basis; provided, however, if FJI does not have an
ownership interest with a manufacturing plant in the western region, CHICAGO
shall have the right to order its fresh juice from other sources during the
months of August 1 thru November 30.
D. CHICAGO agrees to consistently label all products handled,
with one label identified by CHICAGO, as long as this agreement is in effect,
whether or not its purchases are made from the FJI plant. FJI may agree to
allow more than one label.
8. INSURANCE: FJI acknowledges that it has general and product
liability coverage in a minimum amount of $1 million / $1 million and shall
include CHICAGO as a named insured on its policy. A certificate to this effect
will be forwarded to CHICAGO within fifteen (15) days of signing this
Agreement.
9. RISK OF LOSS: Risk of Loss for damage to or loss of product passes
from FJI to CHICAGO upon the transfer of delivery of possession to CHICAGO or
its assigned carriers
provided that the product meets specifications of Paragraphs 7B and 7C when
delivered to CHICAGO.
10. ADDITIONAL RIGHTS OF FJI: In the event CHICAGO sells its stock or
assets to a third party, other than a sale or transfer of stock or assets to
family members, FJI shall have the right of first refusal to purchase CHICAGO
at the same price and terms. CHICAGO shall give FJI thirty (30) days written
notice of its intent to sell and FJI shall have thirty (30) days from receipt
of notice to give CHICAGO written notice of FJI's intent to exercise this
option. In the event FJI fails to give CHICAGO timely written notice of its
intent to exercise its option, it shall be conclusively presumed that FJI has
waived its option to purchase CHICAGO.
Notwithstanding any other provision herein, if CHICAGO is sold to a
third party, other than family members, and FJI does not exercise its option,
then this Agreement shall terminate on the earlier of the end of the term
hereunder (or any renewal under Paragraph 1 hereof) or three (3) years after
the closing date on the sale of CHICAGO.
11. ACTS CONSTITUTING DEFAULT OF CONTRACT:
A. If either party should be declared insolvent or file
bankruptcy or be involuntarily placed into receivership, this Agreement shall
be considered terminated.
B. If FJI, its successors or assigns, allows any of its fresh
squeezed product to be distributed, by any entity other than CHICAGO, in any
territory set forth in paragraph 2 of this agreement or to the customers on
Schedule A annexed hereto then FJI shall be in breach of this agreement.
C. Any breach of any covenant or obligation of this
Agreement.
12. REMEDIES:
A. If a party in breach of the terms of this Agreement fails
to correct the deficiency within twenty (20) days of written notice thereof,
with the exception of a breach in the payment terms which must be cured within
five (5) days of receipt of written notice, the other party shall have the
option to continue this Agreement or, to declare the contract terminated.
B. Nothing contained herein, however, shall prevent either
party from bringing a claim against the other for breach of contract or
exercising all legal rights resultant therefrom.
C. In the event FJI fails to correct a breach of paragraph
llB within twenty (20) days of receipt of written notice, and provided CHICAGO
prevails in any such action, FJI shall be responsible to pay all reasonable
attorney's fees and costs associated with any negotiation, arbitration or
litigation incurred by CHICAGO in enforcing this Agreement.
D. FJI recognizes that a breach of Paragraph llB would cause
irreparable harm to CHICAGO for which damages would be difficult to calculate,
accordingly FJI agrees to the entry of injunctive relief in the event it
breaches Paragraph llB.
13. LAW GOVERNING: This Agreement shall be governed by the laws of the
State of Illinois and any dispute or controversies arising in connection with
it shall be resolved in accordance with those laws and under the rules for
commercial arbitration of the American Arbitration Association.
14. JURISDICTION: In the event of an alleged breach of paragraphs 4,
6D or llB of this agreement, the parties agree that jurisdiction shall be in
the Circuit Court of ▇▇▇▇ County, Illinois. In the event of an alleged breach
of any other provision jurisdiction shall be in the State of Florida.
15. NOTICE: Any notice required under the terms of this Agreement
shall be addressed as follows:
As to CHICAGO ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
As to THE FRESH JUICE ▇▇▇▇▇▇ ▇▇▇▇▇
COMPANY, INC. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
16. ENTIRE UNDERSTANDING: The above terms constitute the entire
understanding of the parties. This contract may only be amended by written
agreement of the parties, signed by both parties and witnessed in terms
identical to this original contract. All notices herein shall be by registered
or certified mail.
ATTEST: NATURAL JUICE COMPANY OF CHICAGO
Wood Dale, IL
_______________________________ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
_______________________________ Its: President
ATTEST: THE FRESH JUICE COMPANY, INC.
a Delaware corporation
_______________________________ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
_______________________________ Its: President
APPENDIX A
▇. ▇▇▇▇▇▇▇▇ & SONS CLEAR SPRINGS LABEL
CLEVELAND OHIO
▇. ▇▇▇▇▇▇ CLEAR SPRINGS LABEL
MEMPHIS TENNESSEE
MEM CORPORATION ULTIMATE JUICE LABEL
COLUMBUS OHIO
MELODY FARMS NATURAL JUICE LABEL
LIVONIA MICHIGAN
PIAZZA PRODUCE NATURAL JUICE LABEL
INDIANAPOLIS INDIANA
SOUTHERN BELLE DAIRY CLEAR SPRINGS LABEL
GOODLETTSVILLE TENNESSEE
