exv10w14



 





Exhibit 10.14




			
	 	 	 
	CONTRACT DATE: 06/21/06
	 	CONTRACT NUMBER: 3304






PURCHASING AGREEMENT




	 	 	 
	BUYER:

	 	SELLER:
	 
	 	 
	General Nutrition Distribution, LP

	 	Lifeline Therapeutics, Inc.
	300 Sixth Avenue

	 	6400 Fiddler’s Green Circle Suite 1970
	Pittsburgh, PA 15222

	 	Englewood, CO 80111
	Attention: Purchasing Department
	 	 
	 
	 	 
	Phone: 412-288-8382

	 	Phone: 720-488-1711
	Fax: 412-288-4743

	 	Fax: 720-488-1722
	E-mail: Lawrie-Madden@GNC-HQ.com

	 	E-mail: stepheno@protandim.com
	Contact Person: Lawrie Madden

	 	Contact Person: Stephen K. Onody






     In consideration of the mutual promises and covenants contained herein and other good and
valuable consideration, and intending to be legally bound hereby, Buyer and Seller agree as
follows:



SUMMARY OF CERTAIN KEY TERMS




     1. Supply of Product. During this Agreement, Buyer shall purchase from Seller the
products
listed on Exhibit 1.1 hereto (the “Products”) at the prices listed on Exhibit 1.1; and Seller
shall sell, fulfill and deliver those Products, all pursuant to this Agreement and Buyer’s Vendor Book, which,
among other requirements, includes Buyer’s standard Purchase Order (hereafter the “Vendor Book” and
incorporated herein by reference). Seller shall also provide the Product’s information requested on Exhibit
1.1.



     2. Distribution Outside The United States. With respect to the distribution of any
Products outside of the United States, Seller will not be responsible, and Buyer and/or a third party
shall be responsible for, 1) securing any necessary regulatory and other approvals, permits or
certificates required to sell the Products in such location and 2) compliance with all laws, rules and regulations
for such
location. In addition, Seller will not be required to pay for any further costs for labeling,
packaging,
translations, delivery or other costs related to distributing the Products outside of the
United States. Upon
receiving a request from an international GNC store to purchase the Products, Buyer shall
promptly
provide written notice to Seller and shall use reasonable efforts to keep Seller informed as
to the status of
any shipments of the Product to any location outside of the United States.



 









 





     3. Lead Time. Unless otherwise agreed to by the parties, all
delivery-transportation terms of sale will be FOB Destination, FREIGHT COLLECT unless
Buyer’s Transportation Department designates FOB Destination PREPAID. The preceding terms
of shipment pertain to the cost and delivery point of shipment of the Products from
Seller’s facility located within the United States of America and shall not affect
allocation of the risk of loss, passage of title, acceptance, payment or Buyer’s right to
return Products, which are addressed elsewhere in the Agreement. Seller will contact
Buyer’s Transportation Department before making any shipping arrangements. Deliveries will
be made by Seller within 4 weeks after Buyer places the order. If Buyer designates that
its Transportation Department will arrange pick up of the Products, then the lead time is
shortened by one week.



     4. Product Payment. Product must be shipped to the Distribution Center designated by
Buyer. Buyer will pay after Product acceptance Net 30 days.



     5. Reverse Logistics. The Seller agrees to the General Nutrition Returns Agreement
(“Returns
Agreement”) attached hereto as Exhibit 4.



     6. Term. The term of this Agreement shall be in effect from June 21, 2006 to June 20,
2007 or until terminated by Buyer or Seller upon ninety
(90) days written notice (the “Term”).



     7. 6. Advertising and Promotion. Seller shall support Buyer’s sale of the
Products by
Product advertising and promotion as described on Exhibit 6.1.



     8. Non-Competition. Buyer agrees that, during the Term, Buyer shall not distribute, sell,
carry for sale, or otherwise market to any of its customers any GNC branded dietary
supplements with
identical formulas to the Products listed on Exhibit 1.1,



     9. Customer Return Pledge. Seller agrees to Buyer’s customer return program as
described in
the Vendor Book. All product returned by customers will be charged back to the Seller at cost
plus 10
percent of such cost in addition to any inbound freight cost incurred by Buyer.



     10. Insurance and Indemnity. Seller shall maintain a comprehensive General/Products
Liability
occurrence policy, $10,000,000 per occurrence/$10,000,000 aggregate for bodily injury, and
property
damages with the following coverage; Premises/Operations, Products/Completed Operations,
Contractual
Liability and Independent Contractors; or General/Products Liability claims made policy,
$10,000,000 per
occurrence/$10,000,000 aggregate for bodily injury and property damages with the following
coverage: Premises/Operations, Products/Completed Operations, Contractual Liability and Independent
Contractors.
The retroactive date of the policy must be prior to the inception date of the contract, and
must be specified
on the Certificate of Insurance. Further details are contained in the Vendor Book. Seller
shall name Buyer
and Buyer’s subsidiaries and affiliates as an additional insured under such coverage as
described in the



 









 




Vendor Book. Seller shall deliver to Buyer a certificate of insurance evidencing the required
coverage to Buyer prior to any delivery of Product. Seller shall provide Buyer at least 60 days
prior written notice of any cancellation, change, or reduction of such coverage (“Change in
Insurance”) and any such Change in Insurance shall constitute a material breach of the Agreement.
In addition, Seller shall provide indemnification to Buyer and its affiliates as more fully
described in the Vendor Book.




GENERAL TERMS




     A. Pricing Terms. Buyer acknowledges and agrees that it will sell Products to
Buyer at a
wholesale price per unit that is equivalent to the lowest wholesale price per unit paid by
other similar United States retail channels. To be clear, in calculating the wholesale price per unit of
the Products,
rebates, promotional programs, spiffs, givebacks and other such ancillary features will not be
considered.
To the extent any different pricing guarantees are included in the Vendor Book or Buyer’s
Purchase
Order, such guarantees shall not apply and shall be void and this Agreement shall govern.



     B. Ordering and Delivery. GND Transportation will determine and arrange all
transportation
requirements for FOB Destination, FREIGHT COLLECT deliveries. If Seller is to arrange
transportation,
Seller will provide estimates to GND Transportation for verification of reasonableness and
approval of
selected carrier before shipment is made. Each Purchase Order received from Buyer shall be
confirmed
by Seller within 24 hours to Buyer’s contact person by fax or electronic confirmation of
receipt.



     C. “Sale or Return” Purchase. Seller and Buyer agree that all Products shall be sold
on a “sale
or return” basis subject to the terms of this Agreement, including, but not limited to this
paragraph C and
Exhibit 4, the General Nutrition Returns Agreement. Retail and wholesale sales of Seller’s
Products will
be evaluated by Buyer on a rolling six month basis and Buyer may elect to discontinue any
Products and
return the same to Seller if, during such six month period, either sales of such Product fall
below the
minimum sales threshold in GNC company-owned stores or do not meet the minimum Overall
Inventory
Turn Rate in GNC company-owned stores as set forth on Exhibit 1.1.



     D. Confidentiality. During the term of this Agreement and after its expiration or
termination,
each party agrees to keep confidential, and to require its respective officers, directors,
employees and
agents to keep confidential all proprietary information of the other party, including without
limitation any
information specifically identified by either party prior to disclosure as being confidential
information,
plans and data concerning products, prices, marketing, sales, customers, and technical or
business matters.
Disclosure of such confidential information shall be made by either party only to those of its
employees
and agents who have need to know such information in order to carry on the purposes of this
Agreement,
and who have agreed to abide by confidentiality requirements at least as restrictive as those
set forth
herein. Seller agrees not to disclose the terms of this Agreement to any third party. Without
limiting the
generality of the foregoing, Buyer acknowledges and agrees that the formulation of the
Products are
proprietary and confidential to Seller. This section shall survive any expiration or
termination of this Agreement.



     E. Notices. All demands, notices and other communications to be given hereunder, if
any, shall be in writing and shall be deemed duly given on the date of service if personally
delivered or on the
date of receipt if sent by nationally-recognized courier service or registered or certified United
States
mail, return receipt requested, postage prepaid, and addressed to the respective party at the
address set
forth herein or such other address designated by the other party.



 









 





     F. Entire Agreement and Modification. This Agreement (including the Vendor Book and
all exhibits) contains the entire agreement of the parties relating to its subject matter and the
parties agree
that this Agreement supersedes all prior written or oral agreements, representations, and
warranties
relating to its subject matter. In the event of any conflict between the terms of the
Purchasing Agreement
and the Vendor Book, the terms of the Purchasing Agreement shall control. Except for changes
to the
Vendor Book, no modification of this Agreement shall be valid unless made in writing and
signed by the
parties. The terms contained in Seller’s invoice are not binding on Buyer and are of no
force or effect.
The individuals signing this Agreement each represents to the other that it has the full
right and authority
to enter into this Agreement and to perform the obligations set forth herein of such party.
The terms and
conditions of the Vendor Book may, from time to time, be unilaterally amended by Buyer. In
the event of
such an amendment, Buyer shall send Seller a written notification describing the amendment
via registered mail, postage prepaid, to the address listed above at least thirty (30) days prior
to the
amendment’s effective date. Acceptance by Seller of a Purchase Order (or any Buyer order)
after receiving notice of the amendment to the Vendor Book shall constitute acceptance by Seller of
the amended terms and conditions of the Vendor Book.



     G. Termination. Either party may terminate this Agreement upon notice to the other
party if
such other party becomes insolvent or bankrupt or files or permits to be filed any petition
in bankruptcy.



     H. Waiver, Assignment and Severabililty. The waiver of a breach of any term or
condition of this Agreement shall not be deemed to constitute the waiver of any further breach
of such term or condition or the waiver of any other term or condition of this Agreement.
Neither party shall assign this Agreement or any right or interest herein in part or in whole
without the prior written consent of the other party. The invalidity, in whole or part, of any
provision in this Agreement shall not affect the validity of any other provision. This Agreement
shall be interpreted, construed and enforced in all respects in accordance with the laws of the
Commonwealth of Pennsylvania.



     IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set forth
above.




	 	 	 	 	 	 	 	 	 
	BUYER	 	SELLER	 	 
	 
	 	 	 	 	 	 	 	 
	GENERAL NUTRITION DISTRIBUTION, LP	 	LIFELINE THERAPEUTICS, Inc.	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	Stephen B. Cherry
	 	By:
	 	Stephen K. Onody
	 	 
	 

	 	 
	 	 	 	 	 	 
	Title:

	 	Sr. Dir of Purchasing
	 	Title:
	 	CEO