VENDOR AGREEMENT
Exhibit 10.24
This Vendor Agreement (“Agreement”) is made this 25th day of July, 2008, between Xxxxxxx
Hygiene Franchise Corp. with its principal business address at 0000 Xxxxxxxx Xxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (“Xxxxxxx”) and Intercon Chemical Company, with its principal
business address at 0000 Xxxxxxx Xxxxxxxxxx Xxxxx, Xx. Xxxxx, XX 00000 (“Intercon”). In
consideration of the mutual covenants contained herein, Intercon will sell and Xxxxxxx will
purchase the products at the price listed in Exhibit I attached hereto and incorporated herein
(“Product”) upon the following terms and conditions:
| 1. | Term. The initial term of this Agreement shall be three (3) years. | |
| 2. | Extension: This agreement shall automatically renew at the end of each Term thereafter for a period of two (2) years (“Extended Term”) unless the terminating party provides written notice of its intent to terminate Agreement no less than 90-days prior to renewal date. The Initial and Extended Terms shall be collectively referred to as (the “Term”). | |
| 3. | Acceptance. Purchase orders for Product will be accepted only when placed on Xxxxxxx’x approved electronic platform (EDI or facsimile transmission), on Xxxxxxx’x approved form of purchase order (see Exhibit 2 attached). Acceptance of purchase orders must be without qualification. Intercon’s Customer Services Group (“CSG”) will review each and every purchase order for accuracy and conformity. CSG will immediately contact Xxxxxxx’x Purchasing Department regarding any purchase order that is inconsistent or does not conform to the approved standards in order to timely process the order. Xxxxxxx is not bound by any terms or conditions that are inconsistent with this Agreement. | |
| 4. | Billing and Payment. All order submission and invoicing must be processed electronically through Electronic Data Interchange (EDI) or by facsimile. Payment is due net 60 days from receipt of invoice with a 1.0% discount if paid within 60 days. During the normal business week (Monday through Friday), all invoices must be received by facsimile to 000-000-0000 by 3:45 p.m. on the next business day following shipment. | |
| 5. | Price Increase and Price Protection. Intercon represents the price and terms are in effect immediately upon execution of this agreement and warrants that the price and terms will continue to be as good or better than what Intercon offers to any other customer.* | |
| For the purpose of this Agreement, prices for the first year of the Term will be as shown on the Price List attached hereto as Exhibit 1 and incorporated herein by reference. Thereafter on the anniversary date of the Agreement, price increases will be limited to five percent (5.0%) across all offerings. Intercon will provide sixty (60) days written notice to Xxxxxxx of any pending price increase. The annual price increase will be committed to a Revised Exhibit 1, initialed by both parties, and appended to this Agreement with copies to be provided to both parties in pdf format for secure storage. |
| * | Confidential terms omitted and provided separately to the Securities and Exchange Commission. |
Page 1 of 20
| Special Economic Adjustment Clause: Any additional price increases resulting from adverse conditions such as significant shortages or increases in the price of the raw materials used in the formulation of the products, force majeure or national or worldwide economical, political or environmental events will be negotiated on a case by case basis. Intercon will request such an increase in writing, detailing the reasons, products, and amounts of price increase. Xxxxxxx will not unreasonably withhold approval of a negotiated price increase. Any special economic adjustment incurred during the year will be considered before determining the price increase at the next anniversary date. | ||
| Intercon agrees to a 3% rebate in favor of Xxxxxxx for any international business which Intercon negotiates and sells directly to Xxxxxxx’x international licensees or affiliates, subject to Xxxxxxx’ written approval. | ||
| 6. | Intercon Right of First Refusal/Exclusive Supply Relationship. Xxxxxxx acknowledges that Intercon is investing in the research and development of products, programs and systems exclusively for Xxxxxxx at no charge to Xxxxxxx for these services except those agreed to in advance between Xxxxxxx and Intercon which require outside service costs (i.e., independent laboratory testing, etc.). Intercon is providing Xxxxxxx, at no additional charge, with training, field, administrative and sales management services as in the development and execution of the chemical program. As Intercon has provided Xxxxxxx license to utilize certain specific products, labeling schema and program components of Intercon’s exclusive and proprietary Intellectual Property, the parties mutually agree that Intercon will be the exclusive chemical supplier to Xxxxxxx except in the circumstances such as listed below: |
| a. | Should Xxxxxxx identify a chemical product, or product line, that is either not available through Intercon or the product from Intercon is solely determined by Xxxxxxx to be inferior, Xxxxxxx may purchase said product until such time as Intercon is able to provide a substitute that is equal to or better, and acceptable to Xxxxxxx, than the competing product in both quality and cost, excluding freight. This paragraph shall include nationally recognized brands or product lines not provided by Intercom. | ||
| b. | Should Xxxxxxx be contacted by a competitor of Intercon and presented with an opportunity to service a specified end use customer, or customer, with that company’s chemical line, or should Xxxxxxx respond to a bid or request for quote or other opportunity where a specified chemical brand is specified, Xxxxxxx shall be allowed to service the end use customer with the competitor’s chemicals. Xxxxxxx will limit the use of the competitor’s chemicals to the specified end use customer unless mutually agreed to by Intercon and Xxxxxxx Jointly the companies will work together to shift this business to products supplied to Xxxxxxx by Intercon at the end of the contract period, provided such shift does not violate and agreement between Xxxxxxx and competitor of Intercon. |
| c. | Products that are judged by Xxxxxxx to be better purchased elsewhere. Such products would constitute less than 10% of Xxxxxxx’x total yearly purchase. | ||
| d. | An exception will be made for any acquisitions that Xxxxxxx may make. Xxxxxxx agrees to switch the acquired company’s product line to Intercon within 180 days, subject to the provisions above, unless mutually agreed between Intercon and Xxxxxxx. | ||
| e. | Or other situations which are mutually agreed upon that manufacture and supply of products by Intercon is not appropriate. | ||
| f. | All specific brands of chemicals that have been traditionally used as part of the Xxxxxxx Service provided to its customers for the treatment of the restroom and other areas of the facility. Such chemical include, but are not restricted to: Air Freshener; Hand Soap; Acids; Germicides; chemicals that may be required to maintain a warranty on equipment; Enzymatic solutions for drain lines and / grease trap maintenance; and, other such products. This is not intended to exclude products which are a part of, or may become at a later date, a part of the Xxxxxxx I Intercon Chemical program. Xxxxxxx may choose, but is not obligated to do so, to use products manufactured by Intercon as an alternative to any of the above mentioned products. The parties agree that any product provided by Intercon which may be in question as regards its status / exclusion in this matter will be negotiated in good faith by the parties on a case by case basis. |
| Xxxxxxx agrees not to solicit from Intercon competitors products competitive with those produced by Intercon and will not supply samples, technical information, etc. to any Intercon competitor. | ||
| Intercon will provide Xxxxxxx with a proven and comprehensive disaster relief plan in the event of force majeure or any event that would prohibit Intercon from providing Xxxxxxx with any one or all Products and services. | ||
| Should Xxxxxxx or any of its affiliates, successors or assigns, develop through acquisition, strategic alliance or other affiliation, a relationship with a competitor or company with capabilities similar to Intercon, the terms of this Agreement remain in force for the duration remaining in the then current term of the Agreement, or for a period of eighteen (18) months whichever is longer. | ||
| At the end of every twelve (12) month period following the effective date of the contract, Intercon shall have fourteen (14) days in which to notify Xxxxxxx that, in its opinion, Intercon feels that Xxxxxxx may not have purchased the minimal percentage amount of chemicals from Intercon provided by the requirements in this section. Following such notification, Xxxxxxx shall have thirty (30) days in which to provide documentation that shows that it did purchase the minimal amount or to purchase an amount equal to any shortage. | ||
| 7. | Product Upgrades. Intercon will update Xxxxxxx regularly on its research and development efforts on upgrades to the Product. Intercon will obsolete and replace |
| existing products as product upgrades become available after field testing for performance validation. Existing obsolete stock of Xxxxxxx private labeled Product will be purchased by Xxxxxxx until the private labeled inventory is exhausted or otherwise negotiated between the parties. Xxxxxxx and Intercon will collaborate on product field testing and will agree on a case by case basis on cost sharing for outside laboratory testing. | ||
| 8. | Shipping and Risk of Loss. Intercon shall keep a. reasonable amount of Xxxxxxx labeled product in stock at all time. Xxxxxxx and Intercon will agree on the products and quantity to be stocked and review the inventory levels on a quarterly basis. For purchase orders placed on Monday or Tuesday of any week, product must be shipped by Friday of the same week. For purchase orders placed on a Wednesday, Thursday or Friday of any week, product must be shipped by the Friday of the following week, or according to the mutually agreed “Freight Policy” attached hereto as Exhibit 3. A delivery note/packing slip, referencing the purchase order number, must accompany each shipment. Intercon assumes the risk of loss or damage to the Product until the Product is confirmed delivered. Xxxxxxx will be allowed a reasonable period of time to inspect the Product upon delivery. Any Product which is damaged, defective, or does not conform to the specifications will be returned to Intercon freight collect and Intercon will replace the Product in an expedited mailmen The cost of the return will be determined on a case by case basis. | |
| Xxxxxxx and Intercon will implement and maintain an email program to submit complaints, request credits, and to determine when the requested credits will be applied. In the event of defective Product, the Product will be reordered and shipped upon receipt of a new purchase order. Defective product will be shipped back to Intercon within 72 hours from the time the product was deemed to be defective or as otherwise mutually agreed. | ||
| A freight schedule and agreement regarding freight costs is attached to this Agreement as Addendum D. | ||
| 9. | Field Training and Technical Support. Intercon will provide one full-time product specialist (currently *) to Swisher who will travel for a minimum of 5 business days on a monthly basis, or as otherwise agreed to by both parties to locations requested by Xxxxxxx and provide field training and technical support without cost to Xxxxxxx. Intercon will also provide access to other regional field support personnel and telephone technical support during normal business hours. Intercon will assist Xxxxxxx in creating an online training program without cost to Xxxxxxx unless otherwise agreed between the parties in writing. Both parties will retain the joint rights to all training programs and collateral materials where each party contributed significantly. These programs will be identified as being jointly owned prior to completion. Intercon will retain the rights to the materials it provides to Xxxxxxx, even if Xxxxxxx contributed in a limited manner. Xxxxxxx will retain the rights to the materials it provides to Intercon, even if Intercon contributed in a limited manner. Intercon and Xxxxxxx will notify in a timely manner the other party of any significant changes in key management and/or field support teams that may affect either company’s ability to meet its long-term strategic objectives as related to the Xxxxxxx chemical program. All effort will be made by both parties to continue to meet or exceed the mutual objectives of the strategic plan. |
| * | Confidential terms omitted and provided separately to the Securities and Exchange Commission. |
| 10. | Marketing Support. Intercon will provide ongoing marketing assistance and support without cost to Xxxxxxx which includes: a) account sales support; b) national account sales support; c) assistance to Xxxxxxx’x marketing department to develop sales literature and sales tools; d) participation in Xxxxxxx’x promotions and regional and annual meetings; and a) assistance to Xxxxxxx with the creation of an annual action and marketing plan during January of each calendar year. All marketing material created shall be the sole property of Xxxxxxx. | |
| 11. | Restrictive Covenants. Intercon will not enter into any agreement with a third party which precludes the third party from conducting business (including the purchase and sale of Intercon products) with Xxxxxxx. During the term of this Agreement and for two (2) years thereafter, Intercon will not sell or solicit sales of products to Xxxxxxx’x franchisees or licensees Intercon will provide, at Xxxxxxx’x request, a complete list of products and services sold to Xxxxxxx franchisees and affiliates or licensees. If Intercon acquires a Competitor (or any assets of a Competitor), including but not necessarily limited to * and any other of Xxxxxxx’x competitors who perform restroom and or kitchen services now or in the future, Intercon will not disclose or otherwise provide confidential information about Xxxxxxx to the Competitor, and will maintain the exclusivity of this Agreement by not directly or indirectly supplying Products to the acquired Competitor for use in Xxxxxxx’x territory. If a Competitor acquires Intercon (or any of Intercon’s assets), Xxxxxxx has the right to terminate this Agreement or require that Competitor be bound by the terms and conditions of this Agreement for the longer of the term of this Agreement and 24 months after the closing date of the Competitor acquisition of Intercon. | |
| 12. | Representations. Intercon represents that: a) the Product will be equal or better in quality and materials as contracted in the specifications as originally supplied; b) the Product or its use does not infringe on any patents, copyrights, trademarks, trade secrets, or any other property rights of any third party; c) it has good and transferable title to the Product; d) there are no suits or proceedings pending or known to Intercon to be threatened which allege any infringement of proprietary rights related to the Product which are likely to be resolved unfavorably to Intercon; and, e) the sale of the Product to Xxxxxxx does not in any way constitute a violation of any law, ordinance, rule or regulation. Intercon will provide timely written notice to Xxxxxxx of any significant material change in the Product. | |
| 13. | Warranties. Intercon warrants that the Products are free in all material respects from defects in material and workmanship and shall be fit for the purposes intended and conform to the specifications provided by Intercon. Xxxxxxx warrants that all trademarks which Intercon is requested to affix on Products are wholly owned by Xxxxxxx or that Xxxxxxx will have the right to use same. The authorization to use Xxxxxxx’x trademarks does not constitute the grant of any rights to use such trademark for any purpose other than in accordance with this Agreement. |
| * | Confidential terms omitted and provided separately to the Securities and Exchange Commission. |
| 14. | Indemnification. To the fullest extent permitted by applicable law, each party to this Agreement (the “Indemnifying Party”) shall defend and hold harmless the other party and their affiliated companies, Xxxxxxx’x franchisees, and the parties’ respective officers, directors, employees, agents, shareholders, partners, joint venturers, affiliates, successors and assigns (“Indemnified Parties”) from and against any and all liabilities, obligation, claims, demands, causes of action, losses, expenses, damages, fines, judgments, settlements, and penalties, including, without limitation, costs, expenses and attorneys’ fees incident thereto, arising out of based upon, occasioned by or in connection with: a) failure of the Indemnifying Party to perform its duties under this Agreement; b) a violation of any law or any negligence, gross negligence or willful misconduct by the Indemnifying Party or its affiliates, subcontractors, agents or employees during either its performance of its duties under this Agreement or otherwise; c) damage to property and injuries, including without limitation death, to all persons, arising from any occurrence caused by any act or omission of the Indemnifying Party or its personnel related to the performance of this Agreement; and d) the Indemnifying Party’s breach of any of the representations, warranties covenants or obligations contained in this Agreement. | |
| The indemnification obligation shall be construed so as to extend to all verifiable legal, defense and investigation costs, as well as other costs, expenses, and liabilities incurred by the Indemnified Parties, including but not limited to interest, penalties, and fees of attorneys and accountants (including expenses), from and after the time when any Indemnified Party receives notification (whether verbal or written) that a claim or demand has been made or is to be or may be made. | ||
| Except as otherwise provided by law, the Indemnified Parties’ right to indemnification under this paragraph shall not be impaired or diminished by any act, omission, conduct, misconduct, negligence or default (other than gross negligence or willful misconduct) of the Indemnified Parties. | ||
| 15. | Non-solicitation. Neither party to this Agreement will solicit for employment nor hire any of the other party’s employees during the term of this Agreement and for twenty-four (24) months following its termination or expiration without the prior knowledge, consent and the written authorization of the other party. | |
| 16. | Independent Contractor. Nothing in this Agreement is intended to make either party an agent, legal representative, subsidiary, joint venturer, partner, employee, fiduciary or servant of the other party for any purpose whatsoever. |
| 17. | Confidential Relationship. The parties acknowledge and confirm the confidentiality agreement signed by them on June 30, 2008 attached hereto as Exhibit 4. Each party (“Recipient”) agrees to treat as strictly confidential, this Agreement, and all specifications, samples, programs, and other information disclosed by the other party (“Discloser”). Recipient will not provide any commercial information or discuss prices, terms, corporate contracts or formulations of any Product that is branded for Xxxxxxx with any other person/persons, companies or organizations unless authorized by Swisher in writing. The terms and conditions of the confidentiality agreement previously signed by the parties are hereby restated and incorporated herein. Intercon will not advertise or otherwise publicly disseminate the fact (including the denial or confirmation thereof) that it provides Product to Xxxxxxx. Each party will inform its employees about the confidential nature of this Agreement Confidentiality survives termination or expiration of the Term of this Agreement and any change of control or transfer of ownership under all circumstances. | |
| 18. | Insurance. Each party will maintain comprehensive general liability and product liability insurance, including broad form vendor and contractual liability endorsements. The policy limits will not be less than two million dollars per occurrence and name the other party as an additional insured. Certificates of insurance will be provided to the other party upon the signing of this Agreement, upon written request, and on every anniversary of this Agreement. | |
| 19. | Assignment. Intercon will not, in any manner, assign or subcontract any of its obligations under this Agreement Intercon’s sourcing of Products or Product components from third parties will not be deemed an assignment or subcontract, although Intercon remains liable for performance under this Agreement. Xxxxxxx may assign its rights under this Agreement. | |
| 20. | Termination. If either party becomes insolvent, makes an assignment for the benefit of creditors, becomes subject to, or files a petition under, any provision of the Bankruptcy Act or similar law relating to the relief of debtors, permits a receiver to be appointed for its business, permits or suffers a material disposition of its assets, breaches any of its obligations hereunder, and fails to cure such breach within thirty (30) days following notice from the other party specifying such breach, or if any amount due under this Agreement is in arrears and is not paid in full with fifteen (15) days following notice from the other party, the non-defaulting party may, at its option, immediately terminate this Agreement and pursue such other remedies as may be available at law or in equity. In the event of termination, Xxxxxxx will agree to purchase existing stock of private labeled Product and components held in inventory for Xxxxxxx at date of notice until private labeled inventory is exhausted or as otherwise negotiated between the parties. | |
| 21. | Xxxxxxx’x Right to End Agreement. Xxxxxxx retains the right to terminate the contract for reasons of convenience and apart from those covered in Section 19. Should Xxxxxxx wish to terminate the agreement without cause, it agrees to compensate Intercon as follows: | |
| If terminated without cause in the first twelve (12) months following the effective date of the agreement, Xxxxxxx will pay Intercon the sum of Four Hundred Thousand Dollars ($400,000) within thirty (30) days following notice of such termination. |
| If terminated without cause in months thirteen (13) through twenty-four (24) following the effective date of the agreement, Xxxxxxx will pay Intercon the sum of One Hundred and Fifty Thousand Dollars ($150,000) within thirty (30) days following notice of such termination. | ||
| If terminated without cause in months twenty-five (25) through thirty-six (36) following the effective date of the Agreement, Xxxxxxx will pay Intercon the sum of Seventy-Five Thousand Dollars ($75,000) within thirty (30) days following notice of such termination. | ||
| In the event of termination without cause, Xxxxxxx will agree to purchase existing stock of private labeled Product and components held in inventory for Xxxxxxx within 90 days of notifying Intercon of the termination. | ||
| Xxxxxxx will discontinue use of any trade names owned by Intercon within 180 days of termination unless otherwise mutually agreed. | ||
| 22. | Financial Distress of Intercom. Intercon hereby grants Xxxxxxx access and rights in and to such of Intercon’s intellectual property, confidential information and other information as relates to the business between Xxxxxxx and Intercon upon the occurrence of any of the following: a) filing of petition in bankruptcy; b) making an assignment for the benefit of its creditors; c) the consent by Intercon to the appointment of a receiver for all or a substantial part of its assets; or, d) the inability of Intercon to pay its debts as they become due. | |
| 23. | Governing Law. This Agreement is governed by the laws of the State of North Carolina without regard to North Carolina’s conflict of law principles. | |
| 24. | Venue, Waiver of Jury Trial. Venue for any claim shall be in Charlotte, Mecklenburg County, North Carolina. The parties waive all objections on the grounds of inconvenience of the forum or jurisdiction of the state or federal courts located in Charlotte, Mecklenburg County, North Carolina.. Each party waives its right to a trial by jury. | |
| 25. | Dispute Resolution. Any dispute or controversy arising under, out of, in connection with, or in relation to this Agreement or any breach hereof shall be determined and settled by arbitration before a single arbitrator to be held in Charlotte, NC in accordance with the commercial arbitration rules of the American Arbitration Association then in effect An award rendered in any such arbitration shall be final and binding in all aspects upon the parties and judgment may be rendered upon the award by the courts of the State of North Carolina and the parties consent to jurisdiction of such courts. | |
| 26. | Damage Limitations and Statute of Limitations. In no event shall either party to this Agreement be liable to the other for punitive, exemplary, consequential, incidental, special or statutorily prescribed damages, including without limitation delay damages, lost opportunity damages or lost profits, incurred by either party or affiliates, subcontractors, agents, or employees in connection with this Agreement. In the event of arbitration or litigation between the parties, the prevailing party shall be entitled to an award of costs and attorneys fees through the appellate level. Notwithstanding any provision of law, any demand or claim under this Agreement will be brought within one year after the date when the facts giving rise to the claim became known, or should have become known in the exercise of reasonable diligence or it is forever waived. |
| 27. | Force Majeure. Performance under this Agreement may be delayed due to unforeseeable and unavoidable delays caused by federal, state or municipal actions, statutes, ordinances or regulations; adverse weather conditions, strikes or other labor disputes; or other unforeseeable incidents outside of any responsible party’s control which shall make such performance impossible. | |
| 28. | Severability; Survival; Entire Agreement; Binding Effect; Ambiguity; Notices; Interpretation. In the event that any provision of this Agreement is found to be void and unenforceable by a court of competent jurisdiction, then such unenforceable provision will be deemed modified to the minimum extent possible so as to be enforceable (or if not subject to modification, then eliminated) for the purpose of permitting the remaining provisions to be enforced. The parties agree that this Agreement constitutes the entire agreement between the parties as to its subject matter, superseding all prior written or oral agreements or representations, and that the provisions of This Agreement are binding on the parties and their administrators, successors and assigns. This Agreement shall inure to the benefit of Xxxxxxx’x franchisees and affiliated company operations as third party beneficiaries of this Agreement. Any ambiguity in this Agreement will be resolved without regard to which party was the author of the provision in dispute. Any notice permitted or required to be given under this Agreement will be deemed given when personally delivered, or when delivered by receipted courier, to the receiving party at its principal business address specified above or at another address previously specified in writing by the receiving party. | |
| 29. | Modification; Waiver. This Agreement may not be modified or amended except by a written instrument executed by all parties hereto. Any failure to exercise or any delay in exercising, any right under this Agreement will not operate as a waiver, nor will any single or partial exercise of any right hereunder preclude the exercise of any other right. No waiver of any default of any provision will be deemed to be a waiver of any preceding or succeeding default of the same or any other provision; nor will any waiver be implied from any course of dealing between the parties. | |
| 30. | Addendums. The following addendums, initialed by both parties, are incorporated herein: |
| XX | Addendum A: Promotional Programs and Meeting Support. | ||
| XX | Addendum B: Exclusivity | ||
| XX | Addendum C: Xxxxxxx Right of First Refusal |
| 31. | Survival. Paragraphs 11 — 15, 22-25 shall survive the termination of this Agreement. |
In Witness Whereof by signing below, the parties agree to be bound by the terms and conditions
contained in this Agreement.
Intercon Chemical Company
/s/ Xxxxx
X. Xxxxxxx
| By: | Xxxxx
X. Xxxxxxx |
| Title: | President |
| Date: | 7/28/08 |
Xxxxxxx Hygiene Franchise Corp.
/s/ Xxxxx
Xxxxxx
| By: | Xxxxx
Xxxxxx |
| Title: | COO |
| Date: | 7/24/08 |
Page 10 of 20
ADDENDUMS
(See Paragraph 28)
(See Paragraph 28)
The following Addendum(s) is incorporated to the Agreement if initialed in paragraph 29.
Addendum A
Promotional Programs and Meeting Support. On January 1 of each year, Intercon will pay Xxxxxxx a
marketing allowance equal to 1% of all qualified purchases made by Xxxxxxx during the preceding
contract year (“Allowance”). The Allowance reimburses Xxxxxxx for its marketing and development
costs. For purposes of this Agreement, qualified purchases means the total amount of all Product
invoices paid by Xxxxxxx less returns, credits, discounts and incentives taken by Xxxxxxx and
taxes, freight and other charges paid to third parties. Also, during each calendar year, Intercon
will sponsor specific events at Xxxxxxx presentations or meetings, the annual cost of which shall
not exceed $5,000.00.
Addendum B
Exclusivity. Intercon understands that Xxxxxxx expects other companies to directly or indirectly
compete with Xxxxxxx by offering the Product as part of, or incidental to, its hygiene products and
services (the “Hygiene Services”). Intercon grants to Xxxxxxx competitor protection against the
exclusive rights to the Product(s) currently used and as upgraded and replaced for Hygiene Services
as well as: a) any national level competitor in the Hygiene Services business (whether or not the
Hygiene Services business is a significant part of such person’s/persons’ companies’ or
organizations’ operations); b) national level competitors (including any of their Affiliates) that
provide janitorial services, including, but not limited to, * and any other
of Xxxxxxx’x current or future national level competitors who perform restroom and or kitchen
services now or in the future, for use in providing Hygiene Services, or c) any other entity known
to Intercon to be one of Xxxxxxx’x national level competitors who perform Hygiene Services now or
in the future during the term of this Agreement and for a period of 18 months after any termination
of this Agreement. Notwithstanding, this paragraph is not intended to prevent Intercom from doing
business with its target market that are not major competitors of Xxxxxxx.
Addendum C
Xxxxxxx & Intercon Special Rights. Xxxxxxx acknowledges that Intercon is a family owned business
and that there are no shareholders outside of immediate family Should Intercon, or any member or
shareholder of Intercom (a “Selling Shareholder”), desire to solicit offers for the sale of all or
substantially all of their shares of the capital stock or ownership interest in Intercon to any
outside party not considered an immediate family member, Intercon shall provide written notice
(“Exclusive Negotiation Notice”) to Xxxxxxx. No notice of sale of Intercon shares to an immediate
family member is required During the 30 day period following the date the Exclusive Negotiation
Notice (the “Quiet Period”) is given hereunder, neither Intercon and the Selling Shareholder shall
undertake any marketing efforts, solicit offers or entertain negotiations of a
| * | Confidential terms omitted and provided separately to the Securities and Exchange Commission. |
sale of the ownership interest and shall negotiate exclusively with Xxxxxxx for the sale of the
ownership interest on such terms and conditions as may be mutually acceptable to each of them in
the exercise of their sole and absolute discretion. If Xxxxxxx and Intercon or the Selling
Shareholder, as the case may be, do not agree on price and terms and execute a definitive agreement
during the Quiet Period, Intercon and/or the Selling Shareholder shall be free to market the
ownership interest, to negotiate with third parties and to solicit and accept an offer from a third
party with no further rights or obligations to Xxxxxxx hereunder, except that Intercon will remain
subject to the other provisions of this agreement, including those in Paragraph 10 and will
negotiate an extension of this Agreement, if requested by Xxxxxxx, to extend twenty-four (24)
months from the date of sale. Similarly, if Intercon desires to sell all or substantially all of
its assets, or all or substantially all of its assets used in the manufacture of the Identified
Products, Intercom will provide an Exclusive Negotiation Notice to Xxxxxxx, and Xxxxxxx and
Intercon will have the same rights and obligations, and only those rights and obligations during
and upon expiration of the Quiet Period as are applicable to a desired sale of an ownership
interest. Xxxxxxx may not exercise any of the foregoing at any time that it is in breach or default
of its obligations under this Agreement.
Exhibit 1 — List of Products and Prices
Insert
specs on all product covered under this Agreement.
*
*
| * | Confidential terms omitted and provided separately to the Securities and Exchange Commission. |
Page 13 of 20
Exhibit 2 — Xxxxxxx Purchase Order
| Xxxxxxx Hygiene Franchise Corp Purchase Order 0000 Xxxxxxxx Xxx Xxxxx, Xxxxx 000 Purchase Order No.PO00098884 Xxxxxxxxx XX 00000 Date 7/25/2008 Toll Free: 000-0XXXXXXX Ext. 7999 Fax: 000-000-0000 Xxxxxxxxxx@xxxxxxxxxxxxxx.xxx Vendor: Ship To: |
| INTERCON CHEMICAL COMPANY CHARLOTTE HYGIENE 0000 XXXXXXX XXXXXXXXXX XXXXX 0000 XXXXXX XXXX XX. XXXXX XX 00000 SUITE 120 CALL FIRST/NO LIFTGATE NEEDED XXXXXXXXX XX 00000 Contract Numbers: |
| Changes Since the Previous Revisions Shipping Method½Payment Terms½ Confirm with ½ Page |
| NET 30 1 |
| Unit Item Number½Description ½Req. Date ½U/M ½Ordered ½Unit Price ½Ext. Price Shipping Method ½ Reference Number FOR Subtotal $0 Trade Discount $0 Freight $0 Miscellaneous $0 Tax $0 Order Total $0 |
Page 14 of 20
| Exhibit 3 Freight Policies |
| Order Processing and Fulfillment Table (Effective Sept 2007) Receipt Date Latest Scheduled Ship Day Possible Ship Days |
| Monday Same FRI Same WED, THURS, FRI |
| Tuesday Same FRI Same WED, THURS, FRI |
| Wednesday Following FRI Same THURS, FRI — Next WED, THURS, FRI |
| Thursday Following FRI Same FRI — Next WED, THURS, FRI |
| Friday Following FRI Same FRI — Next WED, THURS, FRI |
| “SCHEDULED SHIP DAY” reflects ship date entered by Intercon Customer Service. |
| “POSSIBLE SHIP DAYS” reflects the various opportunities Intercon will have to pool shipments and send early. |
| Xxxxxxx Intercon Domestic Freight Policy (Effective 07/28/08) % Paid by Intercon |
| Weight Class 1st 6-Months 2and 6-Months After 1 -Year |
| 24,000 — Truckload 100%* 100%* 100%* |
| 12,000 — 23,999 75% 50% 25% |
| 5,000 — 11,999 50% 25% 0% |
| 2,500 — 4,999 25% 0% 0% |
| **< 2,500 0% 0% 0% |
| * Xxxxxxx pays surcharges |
| **All < 2,500 pound shipments are routed using Xxxxxxx’x logistics support company |
Page 15 of 20
Exhibit 4 — Confidentiality Agreement
Page 16 of 20
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (“Agreement”), dated as of July 25, 2008, is entered into
between Intercon Chemical Company, a Missouri Company, and all of its affiliated entities
(“Intercon”) and Xxxxxxx Hygiene Franchise Corp., a North Carolina Corporation and all of its
affiliated entities (“Xxxxxxx”).
WITNESSETH:
WHEREAS, Intercon and Xxxxxxx from time to time may evaluate or enter into Intercon
relationships or arrangements with each other, and in conjunction with such evaluation and/or
Intercon relationships or arrangements each party may provide to the other party proprietary,
confidential and trade secret information and each party desires that any such information shall be
kept confidential by the other party; and
WHEREAS, each party is willing to keep such information confidential in accordance with this
Agreement;
NOW, THEREFORE, in consideration of the premises, Intercon and Xxxxxxx hereby agree as
follows:
1. Confidential Information. For purposes of this Agreement the term “Confidential
Information” shall mean and be deemed to include any and all proprietary, trade secret and other
confidential information of a party (disclosing party”) disclosed to the other party (“receiving
party’) in any manner (whether orally, in writing, electronically, by the receiving party’s
inspection or otherwise), including but not limited to information about the disclosing party’s
executives, employees, subsidiaries, its subsidiaries’ subsidiaries, customers, suppliers, pricing,
finances, products, services, intellectual property, Intercon methods, Intercon plans, contracts
and contractual relationships; provided, however, Confidential Information of the disclosing party
shall not be deemed to include (a) any portion of the Confidential Information of the disclosing
party which the receiving party had lawfully in its possession prior to the disclosure, (b) any
portion of the Confidential information of the disclosing party which is independently developed by
the receiving party, (c) any portion of the Confidential Information of the disclosing party which
is not treated as proprietary or confidential by the disclosing party, (d) information of the
disclosing party which was or becomes publicly available other than through the disclosure by the
receiving party or by any person known by the receiving party to be bound by a confidentiality
restriction, (e) information which the receiving party can demonstrate by written evidence has been
lawfully disclosed to it by a third party (other than a person known by the receiving party to be
bound by a confidentiality restriction) who did not impose on the receiving party any restriction
on disclosure and who did not acquire it directly or indirectly from the receiving party and (f)
any portion of the Confidential Information of the disclosing party which is approved for release
by the receiving party by written authorization of the disclosing party.
2. Limitation on Disclosure. The receiving party hereby agrees and undertakes with the
disclosing party to retain all Confidential Information of the disclosing party strictly in
confidence, and limit its disclosure to such of the receiving party’s employees, representatives,
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professional advisors, directors and officers as it, in good faith, believes necessary to have
access to such information in order to properly evaluate the potential relationship or arrangement,
and to require its employees, representatives, professional advisors, directors and officers to
retain in confidence, all such Confidential information disclosed to them. The receiving party
further agrees not to use or disclose to others, or permit the use or disclosure of, any such
Confidential information, except for the purposes of such evaluation and as set forth in this
Agreement.
3. Compelled Disclosure. If the receiving party becomes legally compelled to disclose
any of the Confidential Information of the disclosing party, the receiving party will provide the
disclosing party with prompt notice so that the disclosing party may seek a protective order or
other appropriate remedy or waive compliance with the provisions of this Agreement. If the
disclosing party does not obtain such a protective order or other remedy, or if it does not waive
compliance with the provisions of this Agreement, the receiving party will furnish only that
portion of such Confidential Information which is legally required to be furnished.
4. Ownership. The receiving party agrees that the disclosing party is and shall remain
the exclusive owner of all Confidential Information of the disclosing party and all patent,
copyright, trade secret, trademark and other intellectual property rights therein. No license or
conveyance of any rights to any Confidential Information of the disclosing party is granted or
implied tinder this Agreement. All information and/or data that may be disclosed by the disclosing
party is disclosed without any representations, warranties, assurances, guarantees or inducements,
express or implied, including, without limitation, any representations, warranties, assurances,
guarantees or inducements, express or implied, with respect to the (a) infringement or
non-infringement of any patent or other proprietary right owned or controlled by any third party,
and/or (b) content or accuracy of such information and/or data. The disclosing party shall not be
responsible for any expenses, losses or actions incurred or undertaken by the receiving party as a
result of the receipt and use by the receiving party of such Confidential Information.
5. Return of Confidential Information. Upon the written request of the disclosing
party, the receiving party shall return all copies of Confidential Information of the disclosing
party to the disclosing party and/or certify in writing that all copies of Confidential Information
have been destroyed. The receiving party may return any Confidential Information to the disclosing
party at any time.
6. No Third Party Beneficiary. This Agreement is not intended, nor shall it be
construed, to create or convey any right in or upon any person or entity not a party to this
Agreement.
7. Modification and Waiver. No modification or waiver of any of the terms of this
Agreement shall be valid unless in writing and executed with the same formality as this Agreement.
The failure of either party to insist on strict compliance with any of the terms, covenants or
conditions of this Agreement by the other party shall not be deemed a waiver of that or any other
term, covenant or condition, nor shall any waiver or relinquishment of any right or power at any
time be deemed a waiver or relinquishment of that right or power for all or any other times.
8. Severability. If any provision in this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall
continue in full force and effect.
9. Remedies. In the event of a breach or threatened breach by either party of this
Agreement, the other party may avail itself of all appropriate legal and equitable remedies,
including but not limited to injunctive relief The parties acknowledge that the disclosing party
may suffer irreparable harm if this Agreement is breached by the receiving party, that the
disclosing party’s legal remedies are inadequate to protect its interests in the event of such
breach by the receiving party, and that equitable relief is an appropriate remedy for any such
breach (without requirement of any bond or security), in addition to any other available remedies.
10. Intercon Relationship. The provision of Confidential Information hereunder and any
discussions held in connection with any Intercon transactions shall not prevent either party from
pursuing similar discussions with third parties or obligate either party to continue discussions
with the other or to take, continue or forego any action relating to any proposed Intercon
relationship or arrangement between the parties. Any estimates or forecasts provided by either
party to the other shall not constitute commitments.
11. Publicity. Both parties agree to obtain prior written approval from an officer of
the other party before using the other party’s and/or any of its affiliates’ or subsidiaries’ names
orally or in writing in press releases, advertising, media articles and/or interviews, including
customer lists, or for other promotional purposes.
12. Notices. Any notices required by this Agreement shall be given by hand, sent by
express overnight courier service to the applicable address provided and shall be effective upon
receipt Either party may from time to time specify its address for purposes of this Agreement or
any other address upon giving ten (10) days’ written notice thereof to the other party.
13. Headings. The headings of the sections of this Agreement are inserted for
convenience only, and shall not be deemed to constitute a part of this Agreement.
14. Governing Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of North Carolina, excluding its choice of law provisions and
Intercon hereby consents to the jurisdiction and venue of the courts in Mecklenburg County, North
Carolina.
15. Binding Effect. This Agreement shall be binding upon the parties hereto and their
respective successors and assigns. Each of the signatories below represents that he/she is
authorized to enter into this Agreement on behalf of his/her party, and, by placing his/her
signature on this Agreement, agrees to bind his/her party to the terms of this Agreement
16. Assignment. Neither party may assign all or any portion of its rights or
obligations tinder this Agreement to any third party without the prior written consent of the other
party to this Agreement. Notwithstanding the foregoing, either party may assign all or any portion
of its rights and obligations under this Agreement to any affiliate of the assigning party and/or
to any successor by way of merger or consolidation or in connection with the sale or transfer of
all or substantially all of its Intercon and assets relating to this Agreement without the
consent of the other party to this Agreement, provided that (a) the assigning party gives
prompt written notice of such assignment to the other party and (b) without the written consent of
the non-assigning party, no such assignment shall release the assigning party from any of its
obligations under this Agreement
17. Non-Solicitation. Neither party will solicit for employment nor hire any of the
other party’s employees during the term of this Agreement and for six (6) months following its
termination or expiration without the prior knowledge, consent and the written authorization of the
other party.
18. Entire Agreement. This Agreement contains the entire understanding of the parties
with respect to the matters provided for herein and supersedes any and all other prior agreements,
covenants, arrangements, communications, representations or warranties, whether oral or in writing,
by any of the parties or by any officer, employee or representative of any party with respect to
such matters.
INTERCON:
| By: |
| Print Name: |
| Title: |
Individually and on behalf of the company
Xxxxxxx Hygiene Franchise Corp.
| By: |
| Print Name: |
| Title: |
Individually and on behalf of the company
