Processing And Packaging Agreement

Exhibit 10.44

PROCESSING AND PACKAGING AGREEMENT

THIS AGREEMENT (the " Agreement" ) dated as of January 7, 2003, by and between GFA BRANDS, INC. , an Ohio corporation, with its principal place of business at 211 Knickerbocker Road, P.O. Box 397, Cresskill, New Jersey, 07626-0397 (the " Company" ), and CREATIVE FOODS LLC , a Delaware limited liability company with its principal place of business at 710 North Pearl, Osceola, Arkansas, 72370 (" Co-Packer" ).

WITNESSETH:

WHEREAS , Co-Packer operates a food manufacturing plant at Osceola, Arkansas; and

WHEREAS , the Company wishes to engage Co-Packer for the purpose of manufacturing, processing and packaging certain food products for the Company at such plant.

NOW, THEREFORE , in consideration of the premises and of the mutual promises and covenants hereinafter set forth, the parties hereto agree as follows:

1.0 Products and Their Manufacture/Packaging .

1.1 The products to be manufactured, processed and packaged by Co-Packer for the Company hereunder shall be the food products listed on Exhibit A attached hereto and incorporated herein by reference, as may be amended from time to time with the mutual agreement of the parties (collectively, the " Product" ). Co-Packer shall manufacture and process the Product in accordance with certain formulas and specifications to be provided by the Company, good manufacturing processes, specifications, information, and finished product standards, all as set forth in Exhibit B attached hereto and incorporated herein by reference. Co-Packer shall at all times comply with and conform its activities hereunder to the provisions of Exhibit B and provide to the Company samples of each production run at no cost to the Company other than the cost of shipment of such samples. The Company may at any time amend Exhibit B by giving thirty (30) days' prior written notice to Co-Packer of any such amendment. Co-Packer shall package the Product in conformity with the specifications supplied by the Company, which are attached hereto as Exhibit C and incorporated herein by reference. All packaging labels for the Product shall have been approved by the Company prior to use.

1.2 The Company shall give to Co-Packer a rolling six (6) month estimate of its Product needs on the first day of the term hereof and on the first day of each mouth thereafter during the term hereof, in order to assist Co-Packer in establishing a tentative production schedule and to purchase adequate packaging supplies. The Company shall issue orders for a specific Product through written purchase orders as set forth in Exhibit D attached hereto. In all instances, the Company' s liability for Product will be limited to the estimates provided by the Company to Co-Packer and any written purchase orders. The Company' s liability for packaging materials ordered by Co-Packer will be for the estimated volumes for the upcoming six (6) month period, and any packaging materials ordered to meet minimum order quantities.


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Co-Packer will advise the Company anytime a minimum packaging supply order exceeds the applicable six (6) month forecasted volume prior to ordering supplies. All orders for Products will be shipped within seven (7) business days of the specified shipment date in each of the Company' s purchase orders. For purposes of this Agreement, business days shall mean Monday through Thursday of each week, unless any of such days are holidays.

1.3 Co-Packer shall maintain and retain accurate records of production and its standard quality control data, as well as all other records required to be kept by applicable local, state or federal law or as may be reasonably requested by the Company. Further, Co-Packer' s quality control department will prepare its standard reports for each production run. Such records shall be available to the Company for audit verification, upon giving reasonable advance notice to Co-Packer and upon signing Co-Packer' s standard Visitor Confidentiality Agreement, during Co-Packer' s regular business hours and shall be retained by Co-Packer for the Company' s use for at least one (1) year after completion of production.

1.4 During the term hereof, the Company shall purchase all of its requirements for the Product from Co-Packer.

1.5 The Company hereby represents and warrants to Co-Packer, that it is the owner of, or is otherwise authorized to use, all formulas, processes, specifications, information, materials, trade secrets, trademarks, logos, and finished product standards furnished by it to Co-Packer pursuant to this Agreement (the " Company Materials" ), and that the use by either Co-Packer or the Company of any or all of the Company Materials, pursuant to the terms of this Agreement, will not infringe upon or violate, in any manner or fashion, the rights of any third party, whether located in the United States or any other part of the world. In addition, the Company hereby agrees to indemnify, hold harmless, and defend Co-Packer from and against any and all liabilities, damages, injuries, claims, suits, expenses (including reasonable attorneys' fees, court costs, and out-of-pocket expenses) resulting from or arising out of Co-Packer' s use of the Company Materials in connection with this Agreement.

1.6 During the term hereof, Co-Packer will maintain an OU rabbinical certification. 2.0 Term and Termination .

2.1 This Agreement shall commence on the date hereof and shall continue for a period of one (1) year, subject to earlier termination pursuant to the provisions of this Section 2.0. The term shall be automatically extended thereafter for additional one (1) year periods, unless either party shall notify the other of its intent not to renew at least one hundred eighty (180) days prior to the end of the initial or any renewed term, as the case may be. 2.2 Each party shall have the right to terminate, without cause, this Agreement at any time in its sole discretion by providing the other party one hundred eighty (180) days' prior written notice.

2.3 Either party may immediately terminate this Agreement if a Default, as defined below, by the other party has occurred and is continuing by giving written notice thereof to the


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defaulting party. Except as otherwise specifically provided herein, and subject to the provisions of Section 2.4 hereof, termination of this Agreement shall not relieve the defaulting party of any obligation accruing with respect to this Agreement prior to such termination. The term " Default" shall mean any of the following: (a) Failure by a party to comply with or to perform any material provision or condition of this Agreement for ten (10) days after receipt of written notice thereof by such party; or

(b) A party becomes insolvent, is unable to pay its debts as they mature or is the subject of a petition in bankruptcy, whether voluntary or involuntary, or of any other proceeding under bankruptcy, insolvency or similar laws; or makes an assignment for the benefit of its creditors; or is named in, or its property is subject to a suit for appointment of a receiver; or is dissolved or liquidated; or

(c) Any material warranty made in this Agreement is breached, false, or misleading in any material respect.

Subject to Section 2.5 hereof, in the event of such termination, the non-defaulting party shall be entitled to pursue any remedy provided at law or in equity, including injunctive relief and the right to recover any damages it may have suffered by reason of such Default; provided, further, in the event of a termination of this Agreement by Co-Packer, Co-Packer' s damages shall include, but not be limited to, the Equipment Return Expense, as defined herein.

2.4 Upon termination of this Agreement, all rights, obligations, and causes of action accruing hereunder prior to such termination shall survive and the provisions of this Agreement shall continue to be controlling for the purpose of determining the rights of the parties hereto. The waiver or repeated waiver by either party hereto of any breach of any provision of this Agreement by the other party shall not be deemed a waiver of a fixture breach.

2.5 Notwithstanding anything to the contrary herein, neither party shall be liable to the other party for consequential, exemplary, special, incidental, or punitive damages hereunder.

2.6 The provisions of Sections 2.0, 3.0, 8.0, 9.0, and 10.0 hereof shall survive any termination of this Agreement.

2.7 Upon the expiration or termination hereof, the Company shall, immediately, take delivery of and pay for all Product and raw ingredients and packaging relating to the Product which is in Co-Packer' s inventory and/or which had been ordered by Co-Packer, pursuant to the terms of section 1.2 hereof, prior to the expiration or termination hereof, as the case may be.

3.0 Confidentiality .

3.1 In order for Co-Packer to perform the services provided hereunder, each party must disclose to the other party certain information, including, but not limited to, formulas, processes, specifications, trade secrets, know-how, the Product, customer names, and business


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data which the disclosing party considers to be proprietary and confidential. The receiving party shall regard as confidential and proprietary all of the information communicated to it by the disclosing party in connection with this Agreement (which information shall at all times be the property of the disclosing party). The receiving party shall not, without the disclosing party' s prior written consent, at any time (a) use such information for any purpose other than in connection with the performance of its obligations under this Agreement or (b) disclose any portion of such information to third parties. The receiving party shall promptly upon the expiration or earlier termination of this Agreement return to the disclosing party, without retaining copies thereof, all such information which is in written or tangible form (including, all copies, summaries and notes of the contents thereof), regardless of the party causing the same to be in such form, and destroy all written materials prepared by the receiving party which incorporate or include any such information. The receiving party shall disseminate such information to its employees only on a " need-to-know" basis. The receiving party shall cause each of its employees who has access to such information to comply with the terms and provisions of this Section 3.1 in the same manner as the receiving party is bound hereby, with the receiving party remaining responsible for the actions and disclosures of any such employees. In addition, except as otherwise provided herein, the receiving party shall not, without the disclosing party' s prior written consent, disclose to third parties any information developed for the disclosing party by the receiving party or the nature of and discussions regarding this Agreement. The receiving party agrees that any breach of this Section 3.1 by the receiving party or its employees shall cause irreparable injury to the disclosing party, that the disclosing party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach, and that the receiving party agrees to waive any requirement for the securing or posting of any bond in connection with such remedy.

Notwithstanding the foregoing, the receiving party' s obligations pursuant to this Section 3.1 shall not apply to (a) information that, at the time of disclosure, is, or after disclosure becomes part of, the public domain other than as a consequence of the receiving party' s breach of its obligations hereunder, (b) information that was known or otherwise available to the receiving party (as evidenced by the receiving party' s written records) prior to the disclosure by the disclosing party, (c) information disclosed by a third party to the receiving party after the disclosure by the disclosing party, if such third party' s disclosure neither violates any obligation of the third party to the disclosing party nor is a consequence of the receiving party' s breach of its obligations hereunder, or (d) information that the Company authorized in writing for release. This Agreement is also subject to the confidentiality provisions contained in that certain Confidentiality Agreement between the parties, dated as of June 18, 2002. In the event of any conflict between the terms of this section and the foregoing Confidentiality Agreement, then, in any such event, the terms of this section 3.0 shall govern 4.0 Right of Inspection .

4.1 The Company shall have the right to inspect Co-Packer' s plant and to review Co-Packer' s records pertaining to the Product and services hereunder to the extent necessary to protect its rights under this Agreement and Co-Packer agrees that representatives of the Company shall have access, during Co-Packer' s normal business hours and upon signing


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Co-Packer' s standard Visitor' s Confidentiality Agreement, to Co-Packer' s premises for the purpose of inspecting Product prior to delivery thereof to the Company or its customers. If such inspection and/or review by the Company reveals that the processes, procedures, practices or the like used by Co-Packer with respect to its services hereunder fail to conform to Exhibits B and C, Co-Packer shall immediately take appropriate corrective actions (which may include suspension of Co-Packer' s services hereunder), at the Company' s complete direction, until Co-Packer can demonstrate to the Company' s satisfaction that its non-conforming activities have been corrected.

4.2 The Company shall be under no obligation to undertake such inspection and, whether or not the Company inspects the Product or Co-Packer' s facilities, it shall not affect or release Co-Packer from any of the obligations provided herein and none of the obligations of Co- Packer with respect to the Product shall be affected or released by the Company' s (or its customers' ) acceptance of delivery of Product or by any inspection thereof or by payment therefor.

4.3 Co-Packer shall notify the Company immediately of any audits which indicate the presence of listeria monocytogenes, salmonella, or E. Coli in the Product. Co-Packer shall also inform the Company immediately of any inquiry, investigation or inspection by any federal, state or local governmental agency from which may arise (a) a request by such governmental agency for a Company product sample or (b) significant adverse findings such as, by the way of example and not by way of limitation, exposed Product near chemicals, or rodent or insect infestation.

4.4 Upon signing Co-Packer' s standard Visitor' s Confidentiality Agreement, the Company may be represented on site by a representative during each production run of Product. The Company' s representative shall have the right to a ...