Exhibit 10.3
SUPPLY AGREEMENT
BETWEEN VAN DYNE XXXXXX, INC. AND
FIRST AID SELECT, INC.
THIS SUPPLY AGREEMENT (the "Agreement") is made effective the 20th day
of December, 1999, between XXX XXXX-XXXXXX, INC., First Aid Direct Division, an
Ohio corporation ("Buyer") and FIRST AID SELECT, INC., a Florida corporation
("Seller", and collectively with Buyer, "Parties," or individually, "Party").
RECITALS
A. Buyer intends to purchase certain assets and retail delivery routes
from Seller (the "Business") pursuant to an Asset Purchase Agreement, dated
December 16, 1999 ("Asset Purchase Agreement");
B. On and after the Closing Date (as defined in the Asset Purchase
Agreement), Seller intends to continue to operate a wholesale business which
supplies items for the Business; and
C. After the closing of the Asset Purchase Agreement, Buyer desires to
buy all of its requirements of those items listed on Exhibit A (collectively,
the "Items" and individually an "Item") from Seller, and Seller desires to sell
to Buyer the Items, in the volumes required by Buyer, in accordance with the
terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, the Parties, for good and valuable consideration, agree
as follows:
1. Sale of Buyer's Total Requirements. Subject to and commencing after the
closing of the Asset Purchase Agreement, Seller shall sell to Buyer,
and Buyer shall purchase from Seller, Buyer's total requirements of the
Items during the Term (as defined below), provided that Seller's prices
for the Items are competitive, and the quality and type of the Items
are competitive. Buyer and Seller may amend the list of Items set forth
on Exhibit A by mutual written agreement. Buyer shall order such Items
in writing in a form satisfactory to Buyer and Seller.
2. Prices and Payment. Seller shall supply each Item at the price set
forth on Exhibit A, which shall be no higher than the lowest of the
prevailing market price for the best grade for such type of Item for
immediate delivery, and shall be FOB Seller's facility in Sunrise,
Florida. Notwithstanding any provision of this Agreement to the
contrary, Seller may change the price of any Item or Items set forth on
Exhibit A upon 15 days written notice to Buyer. Buyer shall pay for the
Items within 30 days of the later of (i) receipt of an invoice for the
Items ordered or (ii) receipt of the Items ordered.
3. Conditions on Continued Purchases. Buyer may cease purchasing its total
requirements of any Item upon written notice to Seller in the event
that Seller's price for such Item is not competitive or the quality of
the Item is not competitive with similar types of products distributed
by companies that compete with the Business. Notwithstanding the above,
before Buyer may cease to purchase its total requirements of any Item,
Buyer shall give Seller at least 30 days prior written notice of its
intent to cease such purchase. Within such 30 day period, Seller shall
have the right to match the price or quality of any Item which is not
competitive. If Seller makes such match, then this Agreement shall
remain in full force and effect with respect to such Item.
4. Volume; Inability to Meet Requirements. Buyer shall not be required to
purchase any specific quantities of the Items during the Term. In the
event that Seller is unable to fulfill Buyer's reasonable requirements,
it shall be Seller's duty at once to so advise Buyer in writing. On
receipt of such notice, Buyer, in its sole discretion, may elect to:
(i) agree with the Seller to an extension of the delivery time for the
Items so ordered; (ii) purchase the unavailable quantities of the Items
from another supplier; or (iii) cancel the Agreement as to that Item.
5. Term and Termination.
5.1 The Agreement shall commence once Buyer and Seller have
closed the Asset Purchase Agreement in accordance with its terms, and
the duration of this Agreement ("Term") shall be for a period of five
years from the closing of the Asset Purchase Agreement, unless earlier
terminated in accordance with Sections 5.2 hereof. In the event that
the Asset Purchase Agreement is not closed, this Agreement shall be
null and void.
5.2 Buyer may terminate the Agreement, in its sole discretion,
in the event that a significant portion of FASI's shares are sold to a
competitor of VDC in either the uniform delivery or the Business.
5.3 In the event of termination of this Agreement prior to the
end of the Term, VDC shall retain the right to continue use of the
"First Aid Direct" trademark on a non-exclusive basis, in accordance
with the Asset Purchase Agreement.
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6. Miscellaneous.
6.1 Entire Agreement. Except as expressly set forth in this
Agreement or in an instrument in writing signed by the party to be
bound thereby which makes specific reference to this Agreement, this
Agreement sets forth the entire understanding of the parties concerning
the subject matter of this Agreement and supersedes all prior
contracts, arrangements, communications, discussions, representations
and warranties, whether oral or written, between the parties relating
to the subject matter of this Agreement. Any terms or conditions listed
on a purchase order or invoice that conflict with this Agreement shall
be superseded by the terms or conditions of this Agreement.
6.2 Amendment. This Agreement may be amended at any time by a
writing which refers to this Agreement and is signed by the parties.
6.3 Notices. All notices, requests, demands and other
communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been given (i) when
delivered personally, (ii) on the third business day after being
deposited in the U.S. mail, certified, postage prepaid, return receipt
requested, or (iii) on the first business day after being sent by a
nationally recognized overnight express courier service, to a party
addressed as follows:
If to the Seller:
Xxxxxx X. Xxxxxxx, President
First Aid Select, Inc.
00000 XX 00xx Xx.
Xxxxxxx, XX 00000-0000
If to the Buyer:
Xxxxxx X. Xxxxxx, President
Van Dyne Xxxxxx, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Either party may change its address for purposes of this
paragraph by giving the other party written notice of the new address
in the manner set forth above.
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6.4 Successors; Assignment. This Agreement shall be binding
upon and inure to the benefit of the successors and assigns of each
party to this Agreement, but no rights, duties, obligations or
liabilities under this Agreement shall be assignable by any party
without the prior written consent of the other party.
6.5 Severability. Each section, subsection lesser section or
paragraph of this Agreement constitutes a separate and distinct
undertaking, covenant or provision. In the event that any provision of
this Agreement shall finally be determined to be unlawful, such
provision shall be limited by construction in scope and effect to the
minimum extent necessary to render the same lawful and if such a
limiting construction is not possible, such provision shall be deemed
severed from this Agreement, but in any event every other provision of
this Agreement shall remain in full force and effect.
6.6 Waivers. Any waiver by either party of any violation of,
breach of or default under any provision of this Agreement by either
party shall not be construed as or constitute a continuing waiver of
such provision, or a waiver of any other violation of, breach of or
default under any other provision of this Agreement.
6.7 Headings. The headings contained in this Agreement are for
convenience of reference only and shall not affect the meaning,
construction or interpretation of this Agreement.
6.8 Third Party Beneficiaries. Nothing expressed or implied in
this Agreement is intended, or shall be construed, to confer upon or
give any other person or entity other than Buyer, Seller any rights or
remedies under or by reason of this Agreement.
6.9 Governing Law. This Agreement shall be construed according
to, and the legal relations between the parties shall be governed in
accordance with, the laws of the State of Ohio as applicable to
agreements executed and fully performed in the State of Ohio, including
the terms of the Uniform Commercial Code in effect in such state.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
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XXX XXXX-XXXXXX, INC.
By:_________________________________
Xxxxx X. Xxxxxxxx
Vice President and Chief
Financial Officer
FIRST AID SELECT, INC.
By:_________________________________
Xxxxxx X. Xxxxxxx
Chief Executive Officer
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EXHIBIT A
ITEMS AND PRICES
[To be attached]
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