Manufacturing Delivery & Pricing Agreement

MANUFACTURING, DELIVERY & PRICING AGREEMENT


This agreement made and entered into as of this 11th day of September, 1996, by and between MIKE'S ORIGINAL, INC., a Delaware corporation (hereinafter referred to as "MOI") and FIELDBROOK FARMS ICE CREAM, INC., a Delaware corporation (hereinafter referred to as "FIELDBROOK").


WITNESSETH:


WHEREAS, MOI is engaged in the sale and use of certain food products commonly described as "Mike's Original Ice Cream" (hereinafter called the "Product"); and


WHEREAS, MOI is the rightful owner of the formulae, finished product standards and specifications relating to the Product; and


WHEREAS, MOI is the rightful owner of certain intellectual property including, without limitation, all trade names, trademarks, logos and patents (hereinafter "Trademarks").


NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows:


1. MANUFACTURE


FIELDBROOK shall manufacture and sell the Product only to MOI and said manufacture shall be in accordance with the specifications furnished to FIELDBROOK by MOI from time to time. The quality of the Product shall be as specified by MOI.


FIELDBROOK shall manufacture and package the Product in cartons acceptable to MOI and bearing its trademark "Mike's Original" and sell same to MOI according to the pricing as shown in Schedule A and in the quantities as shown in Section 4.


2. PRICING


MOI shall pay FIELDBROOK for the Product according to prices shown in Schedule A.


Pricing to MOI shall be adjusted for bona fide ingredient and carton price variations. MOI will be given thirty (30) days advance written notice of such changes. Milk pricing will be in accordance with Federal Order #36. 2


Processing cost adjustments shall be permitted annually on a prospective basis. The costs of goods will be based on liquid cream cheese formulation with a temporary surcharge added for the additional labor requirements of handling and processing finished cream cheese with such time as the liquid cream cheese formulation begins production.


All pricing to MOI on Schedule A shall be at FIELDBROOK's dock.


3. PAYMENT


Payment terms between FIELDBROOK and MOI shall be twenty-one (21) days from the date the Product is shipped by FIELDBROOK.


4. QUANTITIES


FIELDBROOK shall fulfill MOI's reasonable quantity requirements by delivering all orders to MOI within three (3) days for items in stock, and five (5) days for items to be manufactured from date of FIELDBROOK's receipt of such orders. FIELDBROOK shall be obliged to hold MOI products in the minimum quantities set for in Schedule "B" attached hereto and made a part hereof, for which quantities MOI guarantees payment. Schedule "B" will be reviewed/updated quarterly to reflect any advances or declines in Par or minimum quantities.


5. TRADEMARK


Nothing herein contained shall give FIELDBROOK any right, title or interest in or to the Trademarks, except the right to use the same in connection with the packaging of the product strictly in accordance with the terms hereof and FIELDBROOK acknowledges and agrees that MOI is the owner of the exclusive right, title and interest in and to said Trademarks, that FIELDBROOK shall not do or cause to be done, at any time, any act or thing in any way impairing any part of MOI's right, title and interest in and to said Trademarks, and that any and all uses of said Trademarks are and shall continue to inure to the exclusive benefit of MOI. FIELDBROOK shall no longer be entitled to use the Trademarks of MOI at such time as this Agreement is terminated.


6. CONDITION OF PREMISES


FIELDBROOK AGREES THAT THE PREMISES IN WHICH THE Product is manufactured will at all times be kept clean, healthy and sanitary and will at all times conform to all Federal, state and local health and sanitary requirements. Upon receipt of reasonable notice from MOI, FIELDBROOK agrees to authorize agents or employees of MOI at any and all times during FIELDBROOK's regular business hours to enter FIELDBROOK's premises to inspect the said premises, FIELDBROOK's manufacturing procedures and to obtain samples of the Product in the process of manufacture as well as the finished Product for the purpose of ascertaining or determining compliance with Section 1.


3


7. WARRANTIES AND REPRESENTATIONS OF FIELDBROOK


All warranties provided by the Uniform Commercial Code as adopted by the state in which the manufacturing facility of FIELDBROOK used to manufacture the Product is located shall apply to all transactions under this Agreement unless otherwise specifically provided herein. In furtherance, and not by way of limitation of any warranties provided by such Uniform Commercial Code, FIELDBROOK represents and warrants that the Product when sold and delivered to MOI shall (a) be fit and sufficient ...