Exhibit 6.17
Stabilized Rice Bran Processing, Sales and Marketing Agreement
This Stabilized Rice Bran Processing, Sales and Marketing Agreement,
dated as of this day of August, 1995, is made between California Pacific Rice
Milling, Ltd., a California limited partnership ("Cal Pacific"), and Food
Extrusion, Inc., a California corporation ("FoodEx").
Section 1. Definitions.
For purposes of this Agreement, the following terms have the meanings
set forth below:
"Claim" (or in the plural, "Claims") means any claim, action, suit,
demand, proceeding or investigation seeking damages, costs, expenses, fines or
penalties (including costs of investigation, defense and settlement and
reasonable court costs and attorneys' fees), or an injunction, relating to any
personal injury, property damage, breach of contract, negligence. economic
injury or other liability, whenever arising and by whomever asserted.
"Effective Date" means the date of completion of the Milestone in
Section 2.5(iv).
"Facility" means the rice bran stabilization area at Cal Pacific,
located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
"Product" (or in the plural, "Products") means full fat stabilized rice
bran and/or enhanced full fat stabilized rice bran, and such other rice
bran products as the parties may hereafter mutually agree upon, from
time to time, in the sole discretion of each party.
Section 2. Installation of Equipment.
2.1 Installation. Pursuant to the terms and conditions of this
Agreement, FoodEx will at its own expense provide and install in the Facility
all components and hardware necessary for and required in connection with
[ *** ] and packaging the Product in a
capacity of at least [ *** ] (the additional "Equipment"). This
Equipment will be compatible with and compliment the Equipment presently
utilized by Cal Pacific. FoodEx agrees that the proper design of the Equipment
requires that certain devices and systems, such as [ *** ]
*** Portions of this exhibit have been redacted pursuant to a
confidential treatment request.
[ *** ] are an integral and necessary part of the process to ensure, among other
things, the purity and wholesomeness of the Product, and FoodEx agrees to
incorporate such components into the design of the Equipment. FoodEx is also
responsible for ensuring that the Equipment satisfies the process and approval
requirements of all of its customers. Without limiting the foregoing, (i) the
Equipment shall contain at least [ *** ] in order to
provide for [ *** ] of the Equipment and to help
[ *** ], and (ii) the Equipment will be sized to handle the
[ *** ] which is [ *** ]
[***] Cal Pacific agrees to provide to FoodEx [ *** ]
[***] and other components to be incorporated into the Equipment as available
at Cal Pacific. [ *** ] will pay all fees, costs and expenses (including without
limitation all material, labor, transportation and professional fees, costs and
expenses) incurred in connection with the design, procurement and installation
of the Equipment.
2.2 Approval Rights.
(a) Approval Rights. Cal Pacific shall have the right to
approve all aspects of the design, components and installation plans and
procedures relating to the Equipment (including without limitation the approval
of contractors and subcontractors installing or otherwise working on the
Equipment). Without limiting the foregoing in any way, Cal Pacific may withhold
its approval of the Equipment hereunder if in Cal Pacific's sole judgment: .
(1) any aspect of the Equipment, or its design,
component quality or installation or removal procedures, (i) would pose an
unreasonable risk of personal injury or property damage to anyone or anything,
(ii) would violate, or would result in a violation of, any law, including any
health, safety, labor, building or other code or regulation, or (iii) would
otherwise pose an unreasonable risk of subjecting Cal Pacific to civil or
criminal liability to any third party; or
(2) the Equipment as designed or installed could not
be maintained, cleaned or sanitized in a cost-effective manner.
(b) Approval Not Assumption or Waiver. Any approval by Cal
Pacific under this Section 2.2, whether or not specifically relating to any
aspect of the Equipment's design, components or installation or removal
procedures, does not constitute an assumption of liability, or a waiver of
*** Portions of this exhibit have been redacted pursuant to a
confidential treatment request.
indemnity or contribution, by Cal Pacific for any liability arising therefrom.
2.3 Facility. Cal Pacific will provide physically segregated facilities
for the Equipment at the Facility, and FoodEx agrees that the space occupied by
the Equipment will not exceed [***] square feet. Cal Pacific has sole discretion
over the physical location and configuration of the Equipment at the Facility.
The Facility will have reasonable access to sufficient electricity (including a
central distribution panel near the Equipment), water and other utilities to
operate and maintain the Equipment, and the Equipment will be located
conveniently near existing Cal Pacific rice bran storage and processing areas.
2.4 Cal Pacific Assistance. In connection with the installation and
moving of the Equipment, Cal Pacific [ *** ] will provide FoodEx
with such reasonable engineering, labor and professional assistance in selecting
and purchasing components for the Equipment and contractors to install the
Equipment, as well as planning and supervising the installation and moving of
the Equipment, as Cal Pacific deems desirable. Cal Pacific shall have no
liability to FoodEx for or by reason of any assistance provided to FoodEx under
this Section 2.4, except to the extent that the rendering of such assistance
constitutes gross negligence or willful misconduct, or for failure to provide
any such assistance.
2.5 Timetable. Each of the following shall be completed by the
respective date set forth below (each a "Milestone"):
(i) FoodEx shall have submitted initial design plans
for the additional Equipment to Cal Pacific, and shall have made such
modifications thereto as Cal Pacific then requires for approval under Section
2.2, by January 1, 1996;
(ii) Installation of the additional Equipment shall
have commenced no later than March 1, 1996;
(iii) Installation of the additional Equipment shall
have been substantially completed no later than May 1, 1996; and
(iv) Installation of the additional Equipment shall
have been completed, and the additional Equipment successfully tested, to Cal
Pacific's satisfaction no later than June 1, 1996.
*** Portions of this exhibit have been redacted pursuant to a
confidential treatment request.
2.6 Training and Support. FoodEx will provide to Cal Pacific, [***]
[ *** ] training and technical support (including without
limitation reasonable telephone and on-site consultation, detailed operation and
maintenance manuals, and maintenance and replacement parts and materials,
including any spare parts which Cal Pacific may Currently own) to enable Cal
Pacific personnel to start up and fine-tune, and thereafter to efficiently and
safely clean, operate, maintain and repair, the Equipment. FoodEx will from time
to time at its own cost make such reasonable modifications and/or improvements
to the Equipment as Cal Pacific may request in order to improve the efficiency
or cost-effectiveness of cleaning, sanitizing, operating, maintaining or
repairing the Equipment. FoodEx will pay all approved fees, costs and expenses
(including without limitation all material, labor, transportation and
professional fees, costs and expenses) incurred in connection with any such
modifications and/or improvements.
2.7 Reimbursement of Start-Up Costs. [ ***] will reimburse [ *** ]
within 30 days after submission of approved bills by [ *** ] for all actual
documented costs incurred by [ *** ] in connection with the installation,
start-up and fine-tuning of the Equipment prior to the time that the parties
agree that the Equipment is performing in an effective and satisfactory manner.
Section 3. Operation of Equipment.
3.1 Operation, Maintenance and Repair.
(a) General. Cal Pacific, as long as FoodEx provides the
proper training and support as set forth in Section 2, will have responsibility
for providing personnel to properly clean, operate, maintain and repair the
Equipment during the term of this Agreement; provided, however, that FoodEx will
be responsible for promptly providing all replacement parts for the Equipment.
Cal Pacific will ensure that the cleaning, operation, maintenance and repair of
Equipment complies with all applicable health, safety, labor. building and other
codes and regulations and that the Equipment is kept in a sanitary and food
grade condition.
(b) Operating Fee. For each [ *** ] of Product processed by
Cal Pacific for FoodEx during the term of this Agreement using the Equipment,
FoodEx shall pay Cal Pacific an operating fee [ *** ]
[ *** ]
[ *** ]
*** Portions of this exhibit have been redacted pursuant to a
confidential treatment request.
[ *** ] determined as follows:
(i) For orders placed during each of the [ *** ]
[ ***] after the Effective Date, the amount of [ *** ] of Product,
subject to equitable adjustment (retroactively, if necessary) for an actual
operating capacity of the Equipment of less than [ *** ], an
on-line operating efficiency of less than [***], or a variance in installed
horsepower from that used in calculating the cost of operating the Equipment;
and
(ii) For orders placed after said [ *** ] period,
an amount per [ *** ] of [ *** ] Product that covers [ *** ]
referred to in the first sentence of this Clause (b). The parties agree to
make adjustments from time to time to reflect any modifications or improvements
to the Equipment and any variation over time of the actual cost from the cost
figures on which the fee is based.
(c) Packaging Supplies and Other Ingredients. [ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
(d) Maintenance Expenses. [ *** ]
[ *** ]
[ *** ]
3.2 Production for FoodEx.
(a) General; Purchase Orders. Subject to the terms and
conditions hereof, Cal Pacific hereby agrees to process for FoodEx, and FoodEx
hereby agrees to pay Cal Pacific therefor in accordance with this Agreement,
[ *** ]
[ *** ] FoodEx agrees to give Cal Pacific commercially reasonable lead
times for its processing orders of Product hereunder.
(b) Sale of Raw Rice Bran. Subject to the terms and conditions
hereof, Cal Pacific hereby agrees to sell to FoodEx, and FoodEx agrees to
*** Portions of this exhibit have been redacted pursuant to a
confidential treatment request.
purchase from Cal Pacific, quantities of raw rice bran that Cal Pacific is
reasonably able to deliver and required to fill orders by FoodEx to Cal Pacific
for Product. [ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[***]
(c) Delivery; Risk of Loss; No Storage Space. Cal Pacific will
use reasonable efforts, within the existing limitations and capabilities of the
Equipment, to process and deliver all Product ordered by FoodEx at the times and
in the quality and quantities requested by FoodEx in its purchase orders. Cal
Pacific shall not be obligated to place another shift of personnel into
operation or pay overtime to any personnel to meet any such deadlines. FoodEx
shall be responsible for arranging satisfactory delivery schedules with its
customers, and Cal Pacific shall have no liability therefor. FoodEx will be
responsible for all costs of shipment and delivery of the Products ordered by
it. Title to and risk of loss with respect to the Products ordered by FoodEx
shall pass from Cal Pacific to FoodEx at the time that the shipper or carrier
designated by FoodEx receives possession of the Products. In any case in which
FoodEx would have the right to return Product to Cal Pacific for any reason,
instead of returning the Product FoodEx will ask Cal Pacific for instructions as
to its disposition and will store the Product at Cal Pacific's expense pending
receipt of such instructions.
(d) [ *** ]
[ *** ]
*** Portions of this exhibit have been redacted pursuant to a
confidential treatment request.
[ *** ]
[ *** ]
[ *** ]
(e) Payment Terms. Before the tenth day of each calendar month
during the term of this Agreement, Cal Pacific will invoice FoodEx for all fees,
expenses and purchases of raw rice bran payable by FoodEx. Within 20 days after
the first of such invoices is received, FoodEx will pay Cal Pacific the net
balance owing between the parties. In the event that any payment due is not made
within 10 days after it becomes due, Cal Pacific may add to the amount due a
late payment fee not exceeding [ *** ]
(f) Resales by FoodEx. FoodEx will sell the Product to its
customers under written sales agreements containing provisions the same as or
substantially similar to the capitalized provisions of Sections 9.5 and 9.6 of
this Agreement. FoodEx will, on the request of Cal Pacific, provide Cal Pacific
copies of all such agreements.
Section 4. Marketing.
4.1 FoodEx. FoodEx will have the exclusive right to market Product to
any customers including Cal Pacific customers. All sales by FoodEx of Product
that is processed by Cal Pacific through use of the Equipment shall be made in
compliance with all applicable laws. FoodEx need not order from Cal Pacific all
Product ordered by its customers. FoodEx will have complete freedom to [ *** ]
[ *** ]
[ *** ]
4.2 Cal Pacific Customer Information and Exclusivity. Upon execution of
this Agreement, Cal Pacific will provide FoodEx with names, addresses and
contact persons of its existing customers for the Products, except to the extent
prohibited from doing so by law, by contract or by customer request in
individual cases. FoodEx will maintain existing Cal Pacific customers for the
sole account of Cal Pacific, so long as Cal Pacific is capable of providing said
customers with Product meeting the schedule, quantity and quality required by
customer. should any Cal Pacific customer desire to receive Product from another
FoodEx processing facility, FoodEx. will notify Cal Pacific in writing of said
desire. Cal Pacific and FoodEx will jointly resolve the matters to each others
satisfaction. Said resolution will be reduced to writing and signed by both
parties.
*** Portions of this exhibit have been redacted pursuant to a
confidential treatment request.
4.3 List of Brokers. Upon execution of this Agreement, Cal Pacific will
provide FoodEx with a current list of brokers utilized by Cal Pacific for
marketing Product. FoodEx may contact and utilize the services of these brokers
in order to attempt to expand markets for Product and its derivatives.
4.4 Development of Derivatives. Notwithstanding Section 4. 1, FoodEx
may purchase Product from Cal Pacific in order to develop Product derivatives,
and may market any such Product derivatives developed to any potential
purchaser, including current Cal Pacific customers, even if such Product
derivatives compete with products then offered by Cal Pacific. FoodEx agrees to
use Cal Pacific on the terms set forth herein, to the extent that Cal Pacific
has the capacity to do so, as its principal source for the Product used in
processing such derivative products; provided, however, that the purchase of
Product by FoodEx from Cal Pacific in order to develop derivatives of the
Products shall in no way interfere with Cal Pacific's production schedule of the
Products for customers of Cal Pacific or FoodEx.
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
Section 5. Clinical Study; FDA Approval.
Within 180 days after the "Effective Date" of this Agreement, FoodEx
shall initiate and use its best efforts to diligently maintain, in cooperation
with a generally recognized university or research institution, a reasonably
designed human clinical study for the purpose of researching possible health
benefits of stabilized rice bran or its fractions.
Section 6. Term.
6.1 General. The term of this Agreement shall commence on the date
hereof and, unless terminated earlier under Section 6.2, shall expire on the
third anniversary of the Effective Date. The parties from time to time by mutual
agreement may extend the term for one or more additional periods.
*** Portions of this exhibit have been redacted pursuant to a
confidential treatment request.
6.2 Termination. This Agreement may be terminated prior to expiration
thereof without liability of the terminating party:
(i) By Cal Pacific, if any Milestone described in
Section 2.5 is not achieved within 15 days after the respective scheduled date;
(ii) By Cal Pacific if it does not approve all
matters covered by Section 2.2;
(iii) By either party, at any time after the
thirtieth day after written notice to the other party of the breach by the other
party of any provision contained in this Agreement (other than Section 8 or any
provision relating to payment of funds), specifying the nature and extent of the
breach, if within such thirty day period the specified breach has not been cured
to the reasonable satisfaction of the aggrieved party;
(iv) By either party, at any time after a breach or
threatened breach by the other of any obligation under Section 8;
(v) If any payments are not made within ninety (90)
days after invoice, Cal Pacific may terminate the Agreement.
6.3 Effect of Expiration or Termination.
(a) General. The expiration or termination of this Agreement
shall discharge each party from the further performance of its respective
obligations hereunder, but shall not release either party from liability arising
before or as a result of such expiration or termination.
(b) Confidential Information. In addition to the foregoing,
upon expiration or termination of the term of this Agreement for any reason,
each party will return to the other, and/or will provide evidence satisfactory
to the other party of the destruction of, all information or records provided to
such party and all copies, extracts, summaries and abstracts thereof, and
thereafter will not use or disclose any such information or records for its own
benefit or to the detriment of the other party.
(c) Removal of Equipment. Upon termination or expiration of
this Agreement, FoodEx will, at its own expense, promptly remove the Equipment
from the Facility without causing any damage to the Facility. All designs,
blueprints, and components relating to the Equipment remain the sole property of
FoodEx after removal of the Equipment.
(d) Survival of Covenants. The obligations of the parties
under Section 7 or Section 8 shall survive any expiration or termination of the
Agreement.
Section 7. Allocation of Liability; Indemnification; Insurance.
7.1 Allocation of Liability.
(a) FoodEx. FoodEx shall bear sole responsibility for all
Claims relating to or arising during or as a result of
(1) The design, installation or removal of the
Equipment; or
(2) Any defect in any Product from the failure of the
Equipment.
(b) Cal Pacific shall bear sole responsibility for all Claims
to the extent proximately resulting from the negligent operation, maintenance or
repair of the Equipment by Cal Pacific employees or contractors.
7.2 Indemnification. Each party hereby agrees to indemnify, defend and
hold the other party and the other's directors, officers, shareholders, members,
employees and agents harmless from and against (i) any and all Claims for which
the indemnifying party bears sole responsibility under Section 7. 1, (ii)any
breach by the indemnifying party of its warranties or obligations hereunder, or
(iii) any and all Claims made by any customer of the indemnifying party, whether
for breach of any sales transaction or otherwise (but excluding any Claims
resulting from a breach by the other party of any matter covered by clauses (i)
or (ii) above).
7.3 Insurance.
(a) Cal Pacific hereby agrees to carry at all times during the
term of this Agreement (i) general liability insurance sufficient in scope of
coverage to cover its respective liabilities under this Section 7 in the amount
of at least [ *** ] per claim and in the aggregate, and (ii) product
*** Portions of this exhibit have been redacted pursuant to a
confidential treatment request.
liability insurance covering the Product in the amount of at least [ *** ]
per claim and in the aggregate, in each case naming FoodEx as an additional
insured, and from time to time upon request, to furnish reasonable evidence of
such coverage. If Cal Pacific fails to satisfy its obligations under this
Section 7.3., FoodEx may purchase and maintain such insurance on FoodEx's behalf
and may add any premiums so paid to the amounts otherwise payable by Cal Pacific
under Section 3.
(b) FoodEx hereby agrees to carry at all times during the term
of this Agreement (i) general liability insurance sufficient in scope of
coverage to cover its respective liabilities under this Section 7 in the amount
of at least [ *** ] per claim and in the aggregate, and (ii) product
liability insurance covering the Product in the amount of at least [ *** ]
per claim and in the aggregate, in each case naming Cal Pacific as an additional
insured, and from time to time upon request, to furnish reasonable evidence of
such coverage. If FoodEx fails to satisfy its obligations under this Section
7.3., Cal Pacific may purchase and maintain such insurance on Cal Pacific's
behalf and may add any premiums so paid to the amounts otherwise payable by
FoodEx under Section 3.
Section 8. Confidentiality
8.1 General. Each party agrees that during the course of performance of
this Agreement, such party may receive or learn information relating to the
other party, including without limitation the customers, suppliers, capacities,
processes, patents, products, procedures, know-how, costs, business plans,
assets or business of the other party (and which also includes all information
delivered by Cal Pacific to FoodEx under Section 4.3), and that much of such
information comprises trade secrets. Each party agrees to treat all such
information as confidential, and (i) to use at least the same measures and
procedures to protect such information from unpermitted use or disclosure as it
uses to protect its own confidential information, and (ii) not to disclose such
information to anyone other than those employees involved in the administration
of this Agreement that have a need to know such information. Each party further
agrees not to use any such information (or permit the use thereof by any of its
employees) except as expressly permitted by this Agreement, whether for its own
benefit or to the detriment of the other, and not to disclose or to permit the
disclosure of any such information by any person or entity under its control or
influence, except to the extent that any such disclosure is required by law or
by legal process, and then only after giving the other party reasonable advance
*** Portions of this exhibit have been redacted pursuant to a
confidential treatment request.
notice of and an opportunity to contest the proposed disclosure.
8.2 Plant Rules. All rules and regulations of Cal Pacific regarding the
Facility, including without limitation access to the Facility by anyone not
employed by Cal Pacific, visitors at the Facility or photographs taken at the
Facility, as such rules and regulations may be amended from time to time during
the term of this Agreement, are hereby fully incorporated by reference into this
Agreement and FoodEx agrees to comply with all such rules and regulations. Cal
Pacific, however, shall not unreasonably deny FoodEx personnel and their guests
reasonable access to the facility.
8.3 Specific Enforcement. The parties agree that any breach of the
provisions of this Section 8 may result in damage to the aggrieved party which
is irreparable, speculative or otherwise difficult to prove, and that each party
accordingly shall be entitled to injunctive relief in the event of any breach or
threatened breach hereof by the other.
Section 9. Miscellaneous.
9.1 Arbitration. Except for any action for injunctive relief pursuant
to Section 8.3, the parties agree to submit any and all disputes arising under
or relating to this Agreement to binding arbitration in Sacramento, California
in accordance with the Commercial Rules of the American Arbitration Association,
and during the pendency of any such arbitration proceedings not to institute,
maintain or prosecute any action or proceedings in any other forum or
jurisdiction. The provisions of this Section 9. 1 shall be enforceable, and
judgment may be entered upon any arbitration award awarded hereunder, in any
court of competent jurisdiction.
9.2 Waivers and Amendments. No purported amendment or waiver of any
provision of or right under this Agreement shall be enforceable unless in
writing signed by the party against whom such enforcement is sought.
9.3 Successors and Assigns. Except as expressly otherwise provided
herein, no party may assign any right or remedy or delegate any obligation or
liability arising under this Agreement without the prior written consent of the
other party. Any purported assignment or delegation in violation of this Section
shall be voidable at the option of the nonconsenting party. The provisions in
this Agreement shall inure to the benefit of, and be binding upon, each party's
respective successors and assigns.
9.4 No Joint Venture or Partnership; No Reference to Agreement or
Relationship. Nothing in this Agreement shall be construed to create a
partnership or joint venture of any kind or for any purpose between the parties
hereto, or to constitute either party a special or general agent of the other,
and neither party will act or represent otherwise to any third party. Neither
party shall refer to this Agreement, to the other party or the relationship
between the parties in any communication with any third party without the prior
written consent of the other party.
9.5 Disclaimer of Warranties. Notwithstanding anything contained in
this Agreement, Cal Pacific makes no representations or warranties of any kind,
whether express or implied (including without limitation any implied warranty of
merchantability or fitness of products for a particular purpose), with respect
to any raw rice bran or products sold to FoodEx under this Agreement, except
that all raw rice bran will be precleaned and freshly milled and sold in
accordance with applicable law. The terms of any purchase order used or
submitted by FoodEx in purchasing raw rice bran or the Products shall, except
for the amount thereof purchased, be inapplicable and the provisions of this
Agreement shall govern all such transactions.
9.6 Limitation of Liability. Not withstanding anything contained in
Section 7 or elsewhere in this Agreement, Cal Pacific shall not be liable to
FoodEx, whether in tort, in contract or otherwise, and whether directly or by
way of indemnification, contribution or otherwise, for any incidental,
consequential, punitive or exemplary damages, (including without limitation lost
profits or revenues or injury to business or business reputation), whether of
FoodEx or of any third party, relating to or arising out of products delivered
to FoodEx under this Agreement or the sale of any products by FoodEx.
9.7 Force Majeure. Cal Pacific shall not be responsible for any delays
in processing of any Product ordered by FoodEx on account of strikes, blackouts,
floods, droughts, riots, epidemics, fire, governmental regulation, acts of God
or other causes beyond its control.
9.8 Notices. Any notice under or relating to this Agreement shall be in
writing and shall be deemed duly given upon the earlier to occur of (i) actual
receipt of the notice by the addressee; (ii) confirmed electronic transmission
to the addressee of the notice or a facsimile thereof, (iii) if deposited with a
nationally-recognized messenger service which guarantees delivery within a
specified period (not to exceed three business days), the end of such guaranteed
period; or (iv) if sent be certified or registered United States Mail, the third
business day after such mailing; in each case if transmission, postage or
delivery charges are prepaid and the notice is addressed or delivered as
follows:
If to Cal Pacific:
California Pacific Rice Milling, Ltd,
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Manager
If to FoodEx:
Food Extrusion, Inc.
▇▇▇▇ ▇▇▇▇'▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
Any party may from time to time change its respective address for notice by
delivering written notice of such change to the other party. The burden of proof
of due delivery under this Section 9.8 shall be upon the party giving notice.
9.9 Severability. In case any provision of this Agreement shall be
declared invalid, illegal or unenforceable in any jurisdiction, such provision
shall be deemed stricken from this Agreement as to that jurisdiction only, and
the validity, legality and enforceability of this Agreement or of any of its
provisions in such jurisdiction or in any other jurisdiction shall not otherwise
be affected
9.10 Titles and Section Headings. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are not
to be considered in interpreting or construing this Agreement.
9.11 Expenses. Except as expressly otherwise set forth herein, each
party shall bear its own attorneys' and other professional and business
advisers' fees and expenses incurred in connection with the negotiation,
preparation, execution and performance of this Agreement. In the event that any
party brings any action (whether an arbitration proceeding or otherwise) to
enforce any of the provisions of this Agreement, the prevailing party shall be
entitled to recover reasonable attorneys' fees and costs from the other party.
9.12 Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof
9.13 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California applicable to contracts
entered into and to be performed entirely within California, except that this
Agreement shall be given a fair and reasonable construction in accordance with
the intent of the parties without regard to, or the aid of, Section 1654 of the
California Civil Code.
9.14 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties have executed this Stabilized Rice Bran
Processing, Sales and Marketing Agreement as of the date first above written.
CALIFORNIA PACIFIC RICE MILLING, LTD.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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FOOD EXTRUSION, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman and Chief Executive Officer
