Exhibit 10.30
SUPPLY AGREEMENT
This Supply Agreement (the "Agreement") is entered into this 18 day of
November, 1996, (the "Effective Date") by and between Styl-Rite Optical Mfg.
Co., Inc., a Florida corporation ("Styl-Rite") and Diplomat-Ambassador, Inc., a
Delaware corporation ("Ambassador").
The following recitals are true and constitute the basis for this
Agreement:
A. Styl-Rite is engaged in manufacturing and distributing eyeglass
frames to wholesalers and retail optical outlets;
B. Styl-Rite has an exclusive license to use the Halston trademark in
connection with manufacturing, advertising, merchandising,
promoting, publicizing, selling and distributing ophthalmic frames;
C. Ambassador is a wholesaler engaged in distributing eyewear to retail
optical outlets and specialty shops; and
D. Ambassador desires to purchase from Styl-Rite and Styl-Rite desires
to sell to Ambassador, ophthalmic frames bearing the Halston
trademark for resale by Ambassador to retail outlet, and specialty
shops.
NOW THEREFORE, in consideration of the foregoing recitals, the mutual
covenant contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE I. TERM
1.1 Term of Agreement. The initial term of this Agreement and Styl-Rite's and
Ambassador's respective obligations hereunder will begin on the Effective
Date and terminate on December 31, l998 (the "Initial Term"). Ambassador
shall have the option to renew this Agreement for an additional three (3)
year term (the "Subsequent Term") by providing Styl-Rite with its written
notice of renewal not less than one hundred twenty (120) days prior to the
expiration of the Initial Term; provided that Styl-Rite has exercised its
option to renew the License Agreement dated July 1, 1995, (the "License
Agreement") by and between Styl-Rite and Halston Investments, Ltd., the
successor-in-interest by assignment from Halston Trademarks, Inc., the
owner of the "Halston" trademark ("Halston"); provided further that
Ambassador has purchased from Styl-Rite the minimum number of units set
forth in Article 5.2 and Ambassador is otherwise in compliance with all
the material terms and conditions of this Agreement. This Agreement may
also be terminated prior to the expiration of the Initial Term or the
Subsequent Term in accordance with the terms of this Agreement.
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ARTICLE II. PURCHASES GENERALLY
2.1 Purchase and Sale Obligations.
2.1.1 Current Halston Eyewear Products. On the terms and subject to the
conditions set forth in this Agreement, Ambassador agrees to purchase from
Styl-Rite and Styl-Rite agrees to sell to Ambassador, ophthalmic frames, metal
or plastic, bearing the Halston trademark ("Halston Frames") in the quantities
specified in Ambassador's purchase orders delivered or transmitted to Styl-Rite
from time to time. All purchase orders submitted by Ambassador shall be in the
form of Exhibit "A" attached hereto. The parties agree the terms of this
Agreement shall govern and control if there is any inconsistency between the
terms of this Agreement and any purchase orders for Halston Frames submitted by
Ambassador. Unless otherwise agreed to in writing, all purchases of Halston
Frames hereunder shall be FOB Styl-Rite's place of business and Ambassador shall
pay all freight charges, local state and federal excise taxes, and the risk of
loss shall be with Ambassador from Styl-Rite's place of business. Ambassador
agrees that all orders for plastic Halston Frames will be filled by Styl-Rite
and may not be sourced from any other manufacturer or supplier.
2.1.2. Alternatively Sourced Metal Frames.
A. Approval of Prototypes. Prior to submitting any purchase orders to Styl-Rite
for a metal ophthalmic frame not included on Styl-Rite's then current product
list of Halston Frames (each an "Alternatively Sourced Frame"), Ambassador shall
submit a model or sample of the ophthalmic frame requested by Ambassador (each a
"Prototype"), including any wrapping labels, packaging or containers intended to
be used by Ambassador in connection with the distribution and sale of
Alternatively Sourced Frames, to Styl-Rite for approval. Prior to ordering any
Alternatively Sourced Frame for the first time, Ambassador shall submit to
Styl-Rite for approval two (2) copies of a Prototype of each different
Alternatively Sourced Frame which Ambassador would like to order from Styl-Rite
along with the proposed packaging. All Prototypes shall be sent by overnight
delivery to Styl-Rite, Attention: President, at the address set forth on the
signature page of this Agreement. Styl-Rite shall, pursuant to the terms of the
License Agreement, submit to Halston all Prototypes for approval by Halston.
Styl-Rite shall notify Ambassador as soon as practicable of Halston's approval
or disapproval of the Prototype. If Halston objects to a Prototype, Styl-Rite
shall, in addition to specifically describing those objections, set forth in
such notice any modifications to the Prototype which Styl-Rite deems are
necessary for the Prototype to be accepted as a Halston Frame. This approval
process shall be repeated until such time as the Prototype has been approved by
Halston or the parties agree that the Prototype will not be manufactured and
sold as a Halston Frame. Styl-Rite will not accept any purchase order for
Alternatively Sourced Frames from Ambassador without having received the prior
approval of each Prototype by Halston. Further, all communications by Ambassador
regarding Prototype and purchases of either Halston Frames or Alternatively
Sourced Frames hereunder shall be directed to Styl-Rite.
B. Purchase Orders. Halston's approval of each Prototype, Ambassador may, in its
sole discretion, request that Styl-Rite either (i) import the Alternatively
Sourced Frame directly from an overseas supplier identified by Ambassador (the
"Third Party Supplier"), (ii) import the Alternatively Sourced Frame from
Styl-Rite's own overseas supplier or (iii) manufacture the Alternatively Sourced
Frames if Styl-Rite has the capability to manufacture that type of frame. All
purchase orders for Alternatively Sourced Frames shall be in the form of Exhibit
"A" attached hereto. The parties agree the terms of this Agreement shall govern
and control if there is any inconsistency between the terms of this Agreement
and any purchase order for Alternatively Sourced Frames submitted by Ambassador.
Unless otherwise agreed to in writing, all purchases of Alternatively Sourced
Frames hereunder shall be FOB Styl-Rite's place of business or the Third
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Party Supplier's place of business in the event Ambassador requests that
Styl-Rite arrange to have the Alternatively Sourced Frames dropped shipped to
Ambassador. In either case, it shall be Ambassador's responsibility to pay all
freight charges, local state and federal excise taxes, and the risk of loss
shall be with Ambassador from Styl-Rite's or the Third Party Supplier's place of
business, as the case may be. Styl-Rite shall not process any purchase order for
Alternatively Sourced Frames unless Ambassador has complied with the terms of
Article 4.3.2 hereof. Upon the request of Styl-Rite, Ambassador agrees to
provide Styl-Rite with a reasonable number of samples of each style of
Alternatively Sourced Frame which is dropped shipped by the Third Party Supplier
to insure the Alternatively Sourced Frames an being manufactured in accordance
with the Prototypes approved by Halston. If, in the sole reasonable discretion
of Styl-Rite, the Alternatively Sourced Frames are not being manufactured in
accordance with the Prototypes, Styl-Rite shall notify Ambassador in writing of
such discrepancies and Ambassador shall promptly arrange to have the necessary
repairs and/or modifications made to the Alternatively Sourced Frames so that
those frames conform to the Prototypes.
2.2 Additional Product Lines. The terms of this Agreement may, upon the mutual
consent of Styl-Rite and Ambassador, be amended to provide for the purchase and
sale of other designer frames manufactured or sourced by Styl-Rite.
ARTICLE III. SALE AND DISTRIBUTION OF FRAMES
3.1 Sale and Distribution of Frames by Ambassador. Subject to the terms and
provisions of this Agreement, Styl-Rite hereby grants Ambassador and Ambassador
hereby accepts the exclusive right to distribute the Halston Frames and
Alternatively Sourced Frames at retail to the department stores and other
specialty shops listed on Exhibit "B" attached hereto. Ambassador shall not sell
any Halston Frames or Alternatively Sourced Frames to any department store or
other specialty shop not listed on Exhibit "B" without the prior written consent
of Styl-Rite, which consent will not be unreasonably withheld or delayed.
Further, Ambassador shall not sell any Halston Frames or Alternatively Sourced
Frames to any wholesalers, diverters or any other entities without the prior
written consent of Styl-Rite. Ambassador shall not market any Halston Frames or
Alternatively Sourced Frames as seconds or irregulars, unless the Halston xxxx
is removed from the Halston Frames and the Alternatively Sourced Frames or
unless Styl-Rite specifically authorizes Ambassador to sell such seconds or
irregulars with the Halston xxxx affixed thereto.
From time to time, Styl-Rite and Ambassador shall negotiate in good faith to
reach a mutually satisfactory agreement concerning additional department stores
and specialty shops to be included on Exhibit "B." Until this Agreement expires
or is terminated, Styl-Rite shall not, without the prior written consent of
Ambassador, sell or distribute any Halston Frames or Alternatively Sourced
Frames to any department store or other specialty shop listed on Exhibit "B"
from time to time.
ARTICLE IV. PURCHASE PRICE
4.1 Purchase Price for Halston Frames. The price to be charged Ambassador for
Halston Frames shall be Styl-Rite's list price less %. With respect to Halston
Frames to be provided as samples to Ambassador's sales representatives, the
Purchase price shall be Styl-Rite's list price less %.
4.2 Purchase Price for Alternatively Sourced Frames. The price to be charged
Ambassador for Alternatively Sourced Frames shall be Styl-Rite's Cost, as
defined below, plus %. The term Styl-Rite's Cost as used herein shall mean
Styl-Rite's landed cost (i.e. the price at which Styl-Rite purchases
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Confidential Treatment Requested - Portions filed seperately with the
Commission.
Alternatively Sourced Frames from a Third Party Supplier, less freight,
handling, taxes and other costs attributable to the shipment or receipt by
Styl-Rite of the Alternatively Sourced Frames).
4.3 Payment Terms.
4.3.1 Halston Frames. Any sum due Styl-Rite for the purchase of Halston Frames
shall be due and payable by Ambassador within {sixty (60)} days of its receipt
of an invoice from Styl-Rite. Any sum due Styl-Rite hereunder for Halston Frames
that is not paid when due shall thereafter bear interest until paid at
percent ( %) per annum.
4.3.2 Alternatively Sourced Frames. Any sum due Styl-Rite for the purchase of
Alternatively Sourced Frames, including any deposits that may be required by a
Third Party Supplier at the time Styl-Rite places an order for Alternatively
Sourced Frames, shall be due and payable by Ambassador in immediately available
funds at least one business day prior to the date on which such amounts are due
and payable by Styl-Rite to the Third Party Supplier.
4.4 Minimum Amount of Purchases. If the total aggregate number of units of
Halston Frames and Alternatively Sourced Frames purchased by Ambassador during
the Initial Term of this Agreement is not greater than or equal to the minimum
number of units set forth below during the periods set forth therein, Styl-Rite
may terminate this Agreement in accordance with Article 5.1 hereof; provided,
however, that Styl-Rite has timely supplied Ambassador with Halston Frames and
Alternatively Sourced Frames in accordance with Styl-Rite's ordinary course of
business and consistent with past business practices between the parties. In the
event this Agreement is renewed for the Subsequent Term, Styl-Rite and
Ambassador will, within 10 business days of receiving Ambassador's written
notice of renewal, negotiate in good faith to determine the minimum number of
units during each annual period of the Subsequent Term; provided, however, that
the minimum number of units during each annual period of the Subsequent Term
shall not be less than the minimum number of units for the last annual period of
the Initial Term.
----------------------------------------------------
Period Minimum Units
Purchased
----------------------------------------------------
January 1, 1997-December 31, 1998
----------------------------------------------------
January 1, 1999-December 31, 1999
----------------------------------------------------
ARTICLE V. TERMINATION
5.1 Termination for Cause. If either party materially defaults in the
performance of any of its obligations (except for a default by Ambassador in its
obligation to pay Styl-Rite) under this Agreement, which default shall not be
substantially cured within 60 days after written notice is given to the
defaulting party specifying the default, then the party not in default, by
giving written notice to the defaulting party, may terminate this Agreement as
of a date specified in the notice of termination. Ambassador will pay Styl-Rite
for all outstanding invoices as of the date of termination.
5.2 Termination for Nonpayment. If Ambassador default in the payment when due of
any amount due to Styl-Rite hereunder and does not cure such default within
thirty (30) days after written notice thereof is
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Confidential Treatment Requested - Portions filed seperately with the
Commission.
given to Ambassador, then Styl-Rite may terminate this Agreement as of a date
specified in such notice of termination.
5.3 Termination for Insolvency. Subject to the provisions of Xxxxx 00, Xxxxxx
Xxxxxx Code, if either parry becomes or is declared insolvent or bankrupt, is
the subject of any proceedings relating to its liquidation, insolvency or for
the appointment of a receiver or similar officer for it, makes an assignment for
the benefit of all or substantially all of its creditors, or enters into an
agreement for the composition, extension, or readjustment of all or
substantially all of its obligations, then this Agreement shall terminate.
5.4 Termination of License Agreement. If at any time during the Initial Term or
the Subsequent Term, Styl-Rite's License Agreement with Halston is terminated
for any reason, this Agreement shall terminate as of the same date. Ambassador
will pay Styl-Rite for all outstanding invoices as of the date of termination.
ARTICLE VI CONFIDENTIALITY
6.1 Confidentiality. Except as otherwise provided in this Agreement, Styl-Rite
and Ambassador each agree that all information communicated to it by the other
or the other's affiliates, whether before or after the Effective Date, including
without limitation the terms of this Agreement, will be received in strict
confidence, will be used only for purposes of this Agreement, and will not,
without the prior Written consent of the other party, which consent shall not be
unreasonably withheld, be disclosed by the recipient party, its agents,
subcontractors or employees in any manner whatsoever other than to inform the
parties respective lender(s) for purposes of complying with the terms of any
loan agreement. Each party agrees to use the same means it uses to protect its
own confidential information, but in any event not less than reasonable means,
to prevent the disclosure of such information to outside parties. However,
neither party shall be prevented from disclosing information which belongs to
such party or is (a) already known by the recipient party without an obligation
of confidentiality other than pursuant to this Agreement; (b) publicly known or
becomes publicly known through no unauthorized act of the recipient party; (c)
rightfully received from a third party; (d) independently developed without use
of the other party's confidential information; (e) disclosed without similar
restrictions to a third party by the party owning the confidential information;
(f) approved by the other party for disclosure; or (g) required to be disclosed
pursuant to a requirement of a governmental agency or law if the disclosing
party provides the other party with notice of this requirement prior to
disclosure. The provisions of this Article will survive the expiration or
termination of this Agreement for any reason.
ARTICLE VII. REPRESENTATIONS, WARRANTIES, INDEMNITIES AND LIABILITY
7.1 Representations of Styl-Rite. Styl-Rite represents and warrants to
Ambassador that Styl-Rite possesses all requisite authority and power to conduct
its business and execute, deliver, and comply with the terms of this Agreement,
which has been duly authorized and approved by all necessary corporate action
and for which no approval or consent of any person or entity is required which
has not been obtained. Further, Styl-Rite represents and warrants to Ambassador
that (i) the License Agreement is in full force and effect in accordance with,
and subject to, all of the terms, covenants, conditions and agreements contained
therein; and (ii) until this Agreement expires or is terminated, Styl-Rite will
not, without Ambassador's prior written consent, sell or distribute Halston
Frames or Alternatively Sourced Frames to the department stores and specialty
shops listed on Exhibit "B" from time to time.
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7.2 Representations of Ambassador. Ambassador represents and warrants to
Styl-Rite that Ambassador possesses all requisite authority and power to conduct
its business and execute, deliver, and comply with the terms of this Agreement,
which has been duly authorized and approved by all necessary corporate action
and for which no approval or consent of any person or entity is required which
has not been obtained. Further, Ambassador represents and warrants to Styl-Rite
that Ambassador will not sell any Halston Frames or Alternatively Sourced
Frames, without Styl-Rite's prior written consent, other than to department
stores or specialty shops approved by Styl-Rite. Ambassador acknowledges the
Halston Frames and the Alternatively Sourced Frames bearing the Halston xxxx has
acquired a reputation of quality, prestige and style. Ambassador acknowledges
Halston is the owner of all right, title and interest in and to the Halston xxxx
in any and all forms in which it is used on Halston Frames and Alternatively
Sourced Frames, and is also the owner of the goodwill associated with the
Halston xxxx, including the goodwill associated with the sale of Halston Frames
and Alternatively Sourced Frames under this Agreement. Ambassador represents and
warrants to Styl-Rite that Ambassador shall not (i) contact Halston directly for
any reason during the term of this Agreement, (iii) negotiate with Halston to
obtain a license to use the Halston trademark for a period of one (1) year from
the expiration or termination date of the License Agreement and (iii) at any
time knowingly, do or cause to be done, any act which will, either directly or
indirectly, impair the rights of Halston in and to the Halston xxxx.
7.3 Warranty and Disclaimer. Styl-Rite warrants that all Halston Frames are
manufactured in conformance with standards generally applicable in the optical
industry and are merchantable for their intended use. Except as set forth
herein, Styl-Rite makes no other representations or warranties, either express
or implied, regarding the Halston Frames and, notwithstanding the foregoing
makes no representations or warranties, either express or implied, regarding the
Alternatively Sourced Frames. Ambassador shall make no warranties or
representations with respect to the Halston frames or the Alternatively Sourced
Frames, except as expressly authorized in writing by Styl-Rite. Styl-Rite's
liability for damages for breach of the foregoing warranties shall be limited,
at Styl-Rite's option, to the replacement of any nonconforming Halston Frames or
the return for credit by Ambassador of any nonconforming Halston Frame,
including any reasonable shipping and handling costs incurred by Ambassador.
Styl-Rites liability for any nonconforming products is expressly limited to the
foregoing remedies and Styl-Rite shall in no event be liable for any incidental
or consequential damages. Ambassador shall promptly inspect each shipment of
Halston Frames delivered to Ambassador to determine whether they conform to the
specifications set forth in Ambassador's purchase order. The failure by
Ambassador to notify Styl-Rite of any nonconforming products within twenty (20)
days after the delivery of each shipment of Halston Frames shall be deemed a
waiver by Ambassador of any such claims.
7.4 Indemnification of Styl-Rite. Ambassador agrees to indemnify, defend and
hold Styl-Rite harmless, from any all damages, liabilities, costs, and expenses,
including without limitation, reasonable attorneys' fees and expenses, arising
out of, under or in connection with any claim, demand, charge, action, cause of
action or other proceeding relating to the conduct of Ambassador's business,
including without limitation, the acquisition and use by Ambassador of the
Halston Frames and the Alternatively Sourced Frames to be provided by Styl-Rite
under this Agreement and for or by reason of the infringement of another's
trademark as a result of Ambassador's unauthorized use of the Halston xxxx.
7.5 Indemnification of Ambassador. Styl-Rite agrees to indemnify, defend and
hold Ambassador harmless, from any and all damages, liabilities, costs, and
expenses, including without limitation, reasonable attorneys' fees and expenses,
arising out of, under or in connection with any claim, demand, charge, action,
cause of action or other proceeding relating to any product liability claim
based on a defect in manufacturing
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the Halston Frames or any claim brought by any third party that the manufacture,
design, use marketing or sale of the Halston Frames or the Alternatively Sourced
Frames infringe any patent or trademark, except to the extent such damages
result from the negligence, recklessness, willful misconduct or any unauthorized
acts of the party asserting the claim or seeking indemnification.
7.6 Limitation of Liability of Styl-Rite. In the event Styl-Rite shall be held
liable to Ambassador, for any matter arising out of, under, or in connection
with this Agreement, whether based on an action or claim in contract, equity,
negligence, intended conduct, tort or otherwise, the amount of damages
recoverable against Styl-Rite for all events, acts or omissions shall not exceed
an amount equal to the entire principal obligation of Ambassador for the payment
of the purchase price for the Halston Frames and the Alternatively Sourced
Frames during the Initial term and the Subsequent Term; provided, however, that
this limitation on damages shall not apply to any product liability claim
asserted by any third party. In no event will the measure of damages payable by
Styl-Rite include, nor will Styl-Rite be liable for, any amounts for loss of
income, profit or savings or indirect, incidental, consequential, or punitive
damages of any party, including third parties. The provisions of this Article
will survive the termination of this Agreement for any reason.
7.7 Limitation of Liability of Ambassador. In no event will the measure of
damages payable by Ambassador include, nor will Ambassador be liable for, any
amounts for loss of income, profit or savings or indirect, incidental,
consequential, or punitive damages of any party, including third parties. The
provisions of this Article will survive the termination of this Agreement for
any reason.
7.8 Contractual Statute of Limitations. No claim and demand for arbitration or
cause of action which arose out of an event or events which occurred more than
two (2) years prior to the filing of a demand for arbitration or suit alleging a
claim or cause of action may be asserted by either party against the other
party; provided, however, that the foregoing contractual statute of limitations
shall not apply to any unknown claims or causes of action which are not
discovered until the expiration of more than two (2) years from the date on
which such event or events occurred. Each of those claims shall be subject to
the then applicable statute of limitations.
7.9 Acknowledgment. Styl-Rite and Ambassador each acknowledge that the
limitations and exclusions contained in this Article have been the subject of
active and complete negotiation between the parties and represent the parties'
agreement based upon the level of risk to Styl-Rite and Ambassador associated
with their respective obligations under this Agreement and the payments to be
made to Styl-Rite under this Agreement.
ARTICLE VIII. DISPUTE RESOLUTION
8.1 Cooperative Resolution of Disputes. During the course of the relationship
provided for in this Agreement, disputes, controversies or claims may arise
between the parties. To minimize the expense to and impact on each party of
formally resolving such disputes, controversies and claims, the parties will
meet regularly to review the performance of each party of its obligations under
this Agreement. If the parties are unable to resolve a dispute, controversy or
claim through this performance review process, upon the written request of
either party, each party will appoint a representative whose task it will be to
meet for the purpose of resolving the dispute, controversy or claim and
negotiate a resolution in good faith, without the necessity of any formal
proceeding relating thereto. No formal proceedings for the resolution of such
dispute, controversy or claim may be commenced until either or both of the
appointed representatives conclude in good faith that amicable resolution
through continued negotiation of the matter is not likely. Except where
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clearly prevented by the area in dispute or as provided herein, both parties
agree to continue performing their respective obligations under this Agreement
while the dispute is being resolved unless and until such obligations are
terminated or expire in accordance with the provisions hereof.
8.2 Arbitration for use when Cooperative Resolution Fails. Any dispute,
controversy or claim arising out of or related to this Agreement, or the
creation, validity, interpretation, breach or termination of this Agreement,
that the parties are unable to resolve through informal discussions or
negotiations pursuant to Article 8.1, will be submitted to binding arbitration
before a panel of three arbitrators in Philadelphia, Pennsylvania, in the event
Styl-Rite requests that any dispute, controversy or claim be submitted to
arbitration during either the Initial Term or the Subsequent term and in
Glendora, New Jersey, in the event Ambassador requests that any dispute,
controversy or claim be submitted to arbitration during either the Initial Term
or the Subsequent Term. Either party may demand arbitration in writing, by
serving on the other party a statement of the dispute, controversy or claim, and
the facts relating or giving rise thereto, in reasonable detail, and the name of
the arbitrator selected by it.
Other than those matters involving injunctive relief as a remedy, or any action
necessary to enforce the award of the arbitrators, the provisions of this
Article are a complete defense to any suit, action or other proceeding
instituted in any court or before any administrative tribunal with respect to
any dispute, controversy or claim arising out of or related to this Agreement or
the creation, validity, interpretation, breach or termination of this Agreement.
The provisions of this Article will survive the expiration or termination of
this Agreement for any reason. Nothing in this Article prevents the parties from
exercising the termination rights set forth in this Agreement.
Unless Styl-Rite is bringing an action under this Article for nonpayment by
Ambassador, Styl-Rite will continue to supply the Styl-Rite Frames, and
Ambassador shall continue to make payments to Styl-Rite, in accordance with this
Agreement, during the arbitration proceedings.
8.3 Injunctive Relief. Notwithstanding the provisions of Article 8.1 and 8.2,
Styl-Rite and Ambassador agree that either party may obtain a temporary
restraining order or preliminary injunction pending the resolution of any
dispute between the parties pursuant to either Article 8.1 or 8.2 hereof, if
they are otherwise entitled thereto under applicable law.
ARTICLE IX. MISCELLANEOUS
9.1 Binding Nature and Assignment. This Agreement shall be binding on the
parties hereto and their respective successors and permitted assignees. Neither
this Agreement, any part hereof, nor any right or obligation hereunder may be
assigned by any party hereto without the prior written consent of the other
party hereto (and any attempts to do so will be void).
9.2 Notices. Any notice, request or demand from one party to another under this
Agreement must be in writing (which may be by facsimile transmission) to be
effective and shall be deemed to have been given on the day actually delivered
or, if mailed, on the third business day after it is enclosed in an envelope,
addressed to the party to be notified at the address stated below, properly
stamped, sealed, and deposited in the appropriate official postal service. Until
changed by notice pursuant hereto, the address and facsimile number for each
party for purposes hereof is as shown on the signature pages(s) of this
Agreement. Any writing which may be mailed pursuant to the foregoing may also be
delivered by hand or telecopier and shall
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be effective when received by the addressee. Either party may from time to time
specify as its address for purposes of this Agreement any other address upon
giving prior written notice thereof to the other party.
9.3 Counterparts. This Agreement may be executed in several counterparts, all of
which taken together shall constitute one single agreement between the parties
hereto.
9.4 Headings. The Article and Article headings are for reference and convenience
only and shall not enter into the interpretation hereof.
9.5 Approvals and Similar Actions. Where agreement, approval, acceptance,
consent or similar action by either party is required by any provision of this
Agreement, such action shall not be unreasonably delayed or withheld.
9.6 Force Majeure. Each party shall be excused from performance hereunder (other
than performance of obligations to make payment) for any period and to the
extent that it is prevented from performing pursuant hereto, in whole or in
part, as a result of delays caused by the other or third parties or an act of
God, war, civil disturbance, court order, labor dispute, or other case beyond
its reasonable control, including failures or fluctuations in electrical power,
heat, light, air conditioning or telecommunications equipment, and such
nonperformance shall not be a default hereunder or a ground for termination
hereof.
9.7 Waiver. No delay or omission by either party hereto to exercise any right or
power hereunder shall impair such right or power or be construed to be waiver
thereof. A waiver by either of the parties hereto of any of the covenants to be
performed by the other or any breach thereof shall not be construed to be a
waiver of any succeeding breach thereof or of any other covenant herein
contained. All remedies provided for in this Agreement shall be cumulative and
in addition to and not in lieu of any other remedies available to either party
at law, in equity or otherwise.
9.8 No Third Party Beneficiary. Nothing in this Agreement may be relied upon or
shall benefit any party other than the parties hereto.
9.9 Entire Agreement. This Agreement, including any schedules referred to herein
and attached hereto, each of which is incorporated in this Agreement for all
purposes, constitutes the entire agreement between the parties with respect to
the subject matter of this Agreement and there are no representations,
understandings or agreements relating to this Agreement which are not fully
expressed herein. No amendment, modification, waiver or discharge hereof shall
be valid unless in writing and signed by an authorized representative or the
party against which such amendment, modification, waiver or discharge is sought
to be enforced.
9.10 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to choice of
law provisions, statutes, regulations or principles of this or any other
jurisdiction.
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IN WITNESS WHEREOF, Styl-Rite and Ambassador have each caused this
Agreement to be signed and delivered by its duly authorized officer as of
the date set forth above.
STYL-RITE OPTICAL MFG. CO., INC. DIPLOMAT-AMBASSADOR, INC.
By: /s/ Xxxxxxx Xxxxxxxxxx By: /s/ Xxxxx Xxxxxxx
--------------------------- -----------------------
Xxxxxxx Xxxxxxxxxx Xxxxx Xxxxxxx
Address: 0000 Xxxxxxxxx 00xx Xxxxxx Address: 0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxx, Xxxxxxx 00000 Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
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EXHIBIT B
A & M Optical (aka Vision Masters) J & J Wholesale
Xxxxxx Optical Lenscrafters
Xxxxx Enterprises Midwest Vision
Budget Optical National Vision Associates
Cambridge Eye Doctors New Wave Optiks
Central City Optical New West
Cigna Health Plan Optical Outlets
Xxxxx'x Fashion Optical Philadelphia Vision Centers
Diversified Ophthalmic Price Costco
Xx. Xxxxxx Vision World Price Costco Canada
East Portland Optical Xxxxxxxxx Eye Center
Eye Care Centers of America Shawnee Optical
Eye Gallery (aka P.D. Plastics) South Florida Vision Centers
Eyeland Optical Sterling Vision/Site for Sore Eyes
Express Scripts Texas State Optical
Frame-n-Lens Total Optics
Frame-n-Lens Club Division Upscale Marketing
K-Mart Vision Land
Xxxxxx Permanente Vision Plaza
W.A. Xxxxx
Wal-Mart
2949 Optical
/s/ Xxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxxxxx, Pres.
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AMBASSADOR EYEWEAR GROUP STYL-RITE OPTICS
Xxxxx Xxxxxxx Xxxxxxx Xxxxxxxxxx
