Exhibit 10.13
Portions hereof have been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment in
accordance with Rule 406 of the Securities Act of 1933, as amended.
AGREEMENT FOR THE SUPPLY OF GOODS
This AGREEMENT FOR THE SUPPLY OF GOODS (as it may from time to time be
amended and including the exhibits hereto, this ("AGREEMENT") is entered into on
this *** day of *** 2003, to be effective, subject to the provisions of SECTION
1 below, as of January 1, 2004 (the "EFFECTIVE DATE"), by and among Xxxx'x Inc.,
a Delaware corporation, having its principal place of business at 0 Xxxx Xxxxx
Xxxx, Xxxxxxxx, XX 00000 ("XXXX'X"), Snapple Beverage Group, Inc., a Delaware
corporation having its principal place of business at 000 Xxxxxxxxxxx Xxxxxx,
Xxxxx Xxxxxx, XX 00000 ("SNAPPLE", and together with Xxxx'x and any other
affiliate of Cadbury Schweppes plc that elects to become a purchaser hereunder
by delivering notice to Supplier, each a "PURCHASER") and Anchor Glass Container
Corporation, a Delaware corporation having its principal place of business at
0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx, Xxxxxxx 00000-0000 ("SUPPLIER").
RECITALS
WHEREAS, Supplier is a supplier of certain goods as described in EXHIBIT
A-1 attached hereto (the "GOODS"); and
WHEREAS, Purchaser wishes to contract with Supplier for the supply of such
Goods in such amounts as may from time to time be ordered by Purchaser in
accordance with the terms and conditions contained herein; and
WHEREAS, Supplier desires to sell such Goods to Purchaser in accordance
with the terms and conditions contained herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and premises
hereinafter set forth, and for such other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending legally to be bound, agree as follows:
1. TERM. Subject to the mutual agreement of Supplier and Purchaser to the
terms of EXHIBIT A-1 on or before *** 2003, the term of this Agreement will
commence on the Effective
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*** Portions hereof have been omitted and filed separately with the Commission
pursuant to a request for confidential treatment in accordance with Rule 406.
Date and will continue until *** unless earlier terminated in accordance
with the provisions contained herein (the "TERM"). ***
2. SUPPLY; QUALITY ASSURANCE. During the Term of this Agreement, Supplier will
serve as a supplier of Purchaser requirements for the Goods as specified on
EXHIBIT A-1 attached hereto. Supplier will supply Purchaser with the
requirements specified by Purchaser herein and will produce the Goods to
the specifications as specified on EXHIBIT A-1 attached hereto (as they may
be amended from time to time in accordance with the terms of this
Agreement, the "SPECIFICATIONS"). In connection with the supply of the
Goods, Supplier will satisfy all service requirements and other obligations
specified on EXHIBIT A-2 attached hereto. For the avoidance of doubt,
"Goods" will only consist of the glass products with the Specifications
described on EXHIBIT A-1, and will not include any product that consists of
plastic, aluminum or any other material (other than glass) into which any
"Good" may be converted during the Term of this Agreement in the sole
discretion of Purchaser. In accordance with the terms of this Agreement,
Purchaser will communicate to Supplier any and all quantity requirements
for Goods and delivery dates, locations and other terms that will be
binding upon Supplier pursuant to Purchaser's written purchase order.
Notwithstanding anything herein to the contrary, Purchaser will be under no
obligation, subject to the terms of this Agreement, to submit any orders
for Goods to, or purchase any Goods from, Supplier. Supplier acknowledges
that Purchaser may submit requirements for Goods on behalf of any third
party in addition to Purchaser's requirements provided that such third
party will not be a third party beneficiary of this Agreement. It is
understood and agreed that Supplier will not submit a sales order
acknowledgment or any terms and conditions of sale in connection with any
order by Purchaser. The terms of any such forms or documents (including
those on invoices) submitted by Supplier to Purchaser will be void and of
no force or effect, the terms of this Agreement exclusively governing
purchases and sales between the parties.
Purchaser reserves the right to conduct audits of Supplier's manufacturing
facilities upon reasonable advance notice to Supplier and during normal
business hours to verify Supplier's compliance with the terms and
conditions of this Agreement. Purchaser's customers will be afforded the
right to participate in such audits upon written request subject to advance
written approval by Supplier.
Supplier will notify Purchaser's purchasing and quality assurance personnel
of any changes in Supplier's Goods components, physical and/or chemical
properties or any other modifications to the Goods. Notifications must be
made in a timely manner to allow Purchaser qualification of and consent to
such modification to occur prior to the first shipment of the modified
Goods. Any Goods received by Purchaser and subsequently discovered to be
altered or revised by Supplier without Purchaser's qualification and
consent will, at Purchaser's option, be returned to Supplier at Supplier's
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*** Portions hereof have been omitted and filed separately with the Commission
pursuant to a request for confidential treatment in accordance with Rule 406.
2
sole cost and expense, and Supplier will reimburse Purchaser for all
losses, damages and expenses incurred by Purchaser resulting from such
modification.
If Supplier determines the existence of quality or technical difficulties
(including breaches of specifications, production issues or quality issues)
with any of the Goods, Supplier will promptly notify Purchaser in writing
of such quality or technical difficulties, providing as much specificity
and detail as is reasonably practicable. Purchaser will have the right,
immediately and at its sole option, to require Supplier to withdraw such
Goods or any such packaging from the territory. Purchaser will have the
right, immediately and at its sole option, to require Supplier to withdraw
such Goods or any such packaging from the territory. Purchaser will notify
Supplier of the need for such withdrawal, and Supplier will, upon receipt
of notice, immediately cease distribution of such Goods and/or the
packaging used therefore. Supplier will cooperate fully with Purchaser and
its designated agents in making any required disclosures to governmental
agencies or the public. If so directed by Purchaser, Supplier will recall
and reacquire the Goods or packaging involved from any purchaser thereof.
If any recall is caused by Supplier's failure to comply with the
Specifications or any applicable laws, Supplier will bear the out of pocket
expenses of such recall and reimburse Purchaser for any out of pocket
expenses incurred by Purchaser related thereto.
3. PRICE; COMPETITIVE PRICING.
(a) The price for the Goods hereunder, together with any applicable
rebates, discounts, allowances, other incentives and taxes, is
specified on EXHIBIT B-1 attached hereto. The price less the aggregate
amount (determined on an annual basis) of such rebates, discounts,
allowances, other incentives and taxes is referred to herein as the
"net price". Unless otherwise specified on EXHIBIT B-1, the price for
the Goods includes *** Purchaser will receive a *** discount on all
invoices paid within 10 days of its receipt of the invoice. Subject to
Sections 5 and 12, full payment of undisputed amounts on any invoice
is due within *** days of Purchaser's receipt of Supplier's invoice.
Supplier shall invoice Purchaser promptly and may not invoice
Purchaser more than *** days after Supplier is permitted to issue any
invoice for the Goods. Purchaser is not obligated to pay any such late
invoice, and Supplier waives all rights and remedies related to such
late invoices.
(b) [Intentionally omitted]
(c) ***
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*** Portions hereof have been omitted and filed separately with the Commission
pursuant to a request for confidential treatment in accordance with Rule 406.
3
(d) *** If, after *** days from the date of Supplier's receipt of such
notice, supplier has not signed an amendment to this Agreement ***
4. PRICE ADJUSTMENTS; COSTS. During the Term of this Agreement, the price for
the Goods hereunder will be adjusted as specified on EXHIBIT B-1, *** On or
before February 15 of each calendar year during the Term of this Agreement,
Supplier will furnish Purchaser with reasonable documentation supporting
Supplier's calculations of the Input Cost Savings and Supply Efficiencies
for the preceding year.
5. INSPECTION/TESTING; NON-CONFORMING GOODS; INSIGNIA. Payment for the Goods
delivered hereunder will not constitute acceptance thereof. Notwithstanding
any other provisions of this Agreement, Purchaser will have the right to
inspect such Goods prior to payment or acceptance to verify that the Goods
delivered conform to the Specifications and that no Goods have been damaged
or destroyed. Purchaser's acceptance of the goods will not relieve Supplier
of any of its obligations and warranties under this Agreement. All Goods
failing to meet the warranties and Specifications contained in this
Agreement or shipped contrary to instructions, or in excess of quantities
reasonably necessary, or substituted for goods herein described, or not
shipped in containers conforming to Purchaser's Specifications (or, in the
absence of such specifications, in recognized standard containers), or
violating any statute, ordinance, or administrative order, rule or
regulation, may be rejected by Purchaser for full credit and returned or
held at Supplier's expense and risk. Purchaser may charge to Supplier all
reasonable documented expenses of inspecting, unpacking, examining,
repacking, storing and reshipping any goods so rejected. Supplier will not
replace any such rejected goods without written authorization from
Purchaser. If Purchaser receives Goods whose defect or nonconformity is not
apparent on examination, Purchaser reserves the right to reject such Goods
for full credit or require replacement, and in each case will be entitled
to payment of all expenses described in this Section. Purchaser may cancel
any unshipped Goods that are not in compliance with the Specifications or
other terms and conditions of this Agreement. Nothing contained in this
Agreement will relieve Supplier in any way from the obligation of testing,
inspection, and quality control.
Material rejected, returned or not purchased by Purchaser that uses or
carries Purchaser's name, trade name, trademark, insignia, symbol,
decorative design or evidence of inspection will have the same removed
prior to any sale, use or other disposition, and any food or beverage
product not fit for human consumption will be destroyed. Supplier will
indemnify and hold Purchaser harmless from any claim, loss or damage
arising out of Supplier's failure to do so.
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*** Portions hereof have been omitted and filed separately with the Commission
pursuant to a request for confidential treatment in accordance with Rule 406.
4
6. COMPETITIVE TECHNOLOGY. Supplier and Purchaser agree that it is of primary
importance to Purchaser and Supplier to remain competitive in their
respective industries. Therefore, Suppler agrees that it will at its cost
maintain best in class technology in the performance of its duties
described herein. ***
7. OWNERSHIP RIGHTS OF TANGIBLE AND INTANGIBLE PROPERTY.
All materials, including tools and machines, owned, leased, furnished or
specifically paid for by Purchaser will be the property of Purchaser, will
be subject to removal at all times at Purchaser's demand without additional
cost, will be used only in Supplier's performance of this Agreement, will
be clearly identified as the property of Purchaser, will be insured on a
replacement cost basis by Supplier with loss payable to Purchaser and will
be kept confidential and returned to Purchaser at the termination of this
Agreement. Supplier assumes liability for all loss or damage to any such
materials while in Supplier's care, custody and control, normal wear and
tear to such materials excepted.
Any intellectual property rights, including inventions, patent
applications, patents, trade secrets, copyrights, trademarks, trade dress
or designs (the "INTELLECTUAL PROPERTY RIGHTS") conceived, created or
requested by Purchaser pursuant to this Agreement will be owned exclusively
by Purchaser. Purchaser will pay the cost of securing appropriate
protection of the Intellectual Property Rights provided, however, that
engineering work product developed by Supplier will be owned by Supplier
and engineering work product developed by Purchaser will be owned by
Purchaser. Supplier will execute, without further consideration, all
documents, including any assignment, waiver or deed, necessary to secure
the Intellectual Property Rights of Purchaser. Nothing in this Agreement
will affect the ownership or control of Intellectual Property Rights
conceived by either party working outside the scope of this Agreement.
8. PRODUCTION AND DELIVERY. Supplier will manufacture the items specified on
EXHIBIT A-1 in such quantities as Purchaser may require from time to time.
Supplier understands that Purchaser operates on the basis of 13 four-week
periods. At least *** days prior to the start of each calendar year during
the Term of this Agreement, Purchaser will provide Supplier with its best
estimate of its anticipated purchases during such year. Purchaser will
thereafter provide Supplier with weekly rolling *** forecasts of Purchaser
anticipated purchases, so that Supplier may produce Purchaser requirements
and maintain an adequate inventory to supply Purchaser in the normal course
of Supplier's business, Except as expressly set forth herein, (i)
Purchaser's forecasts are not binding on Purchaser and no estimate or
forecast, including any estimate or forecast set forth in a blanket
purchase order, will create a legally binding obligation on Purchaser to
purchase any Goods, or give rise to any Purchaser obligation or liability,
and (ii) Purchaser will be obligated to purchase Goods only to the extent
Purchaser submits Purchaser's written
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*** Portions hereof have been omitted and filed separately with the Commission
pursuant to a request for confidential treatment in accordance with Rule 406.
5
purchase order or vendor control report to Supplier for such Goods or, in
the case of a blanket purchase order, makes a specific request under such
blanket purchase order. Supplier must deliver any Goods ordered by
Purchaser to the address and at the time specified by Purchaser. Time is of
the essence in such delivery and if Supplier fails to deliver any Goods
ordered by Purchaser at the time and place specified by Purchaser and in
accordance with the term and conditions specified in this Agreement,
Purchaser may in addition to all rights and remedies provided by law, (i)
reject the Goods, (ii) require Supplier to reimburse Purchaser for any loss
sustained by Purchaser as a result of such failure, including the costs of
production downtime in any of Purchaser's or its co-packers' manufacturing
operations and any additional cost incurred by Purchaser in sourcing
equivalent or similar Goods from another supplier and (iii) terminate this
Agreement if Supplier is unable to cure such failure following notice and a
*** cure period.
Notwithstanding anything to the contrary contained in this Section,
Purchaser authorizes Seller on the basis of the above-noted forecasts to
maintain a reasonable inventory of Goods (not to exceed a *** inventory
without the written consent of Purchaser). In the event of the expiration
or termination of this Agreement for any reason, Purchaser shall (upon
delivery of such inventory) in addition to any other obligations it may
have to Seller hereunder, pay Seller at the then-effective price for such
*** inventory of Goods.
During the Term of this Agreement, Supplier shall use its best efforts to
maintain a minimum inventory of glass sufficient to cover no less than ***
of Purchaser's anticipated requirements of Goods of each size, based upon
Purchaser's non-binding rolling *** requirements estimates as described
above. Supplier's obligations pursuant to this paragraph shall be subject
to Supplier's reasonable right to replenish any depleted inventory.
Should Purchaser implement a Supplier Managed Inventory ("SMI") program as
provided in SECTION 9 of this Agreement, the terms conditions contained in
EXHIBIT C hereto will govern production and delivery to the extent they are
inconsistent with the terms and conditions provided in this Section.
9. SUPPLIER MANAGED INVENTORY. Purchaser and Supplier agree to establish
supply chain improvement teams during this Agreement in order to review,
optimize and reduce costs while improving efficiency of the supply chain.
Information shared by the teams will be governed by the confidentiality
provisions contained in SECTION 19 of this Agreement. Further, during the
Term of this Agreement, Purchaser and Supplier agree that they may
implement an SMI program. By way of example, EXHIBIT C contains terms and
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*** Portions hereof have been omitted and filed separately with the Commission
pursuant to a request for confidential treatment in accordance with Rule 406.
6
conditions of the SMI program, which may be negotiated and mutually agreed
upon by the parties if such SMI program is implemented. The SMI program
will commence at such time as Supplier and Purchaser mutually agree, and
Supplier and Purchaser agree to negotiate and agree upon the terms of such
SMI program prior to the commencement of the SMI program.
10. TECHNICAL SUPPORT; ACCOUNT REPRESENTATIVE. During the Term of this
Agreement Supplier will upon Purchaser's request provide Purchaser with
technical support services, at no cost to Purchaser, to identify and
resolve issues relating to the Goods. Such technical support services will
include a dedicated technical support Manager, whose responsibilities are
defined in EXHIBIT A-2 attached hereto, and field technical support
personnel fluent in English and the use of laboratories located in the
continental United States. In addition, Supplier agrees to cooperate with
Purchaser, or at Purchaser's request an independent mutually agreed third
party, regarding product performance and regulatory issues. To the extent
the Goods fail to comply with the Specifications, without limiting
Purchaser's remedies under law or under this Agreement, Supplier agrees to
provide technical support, information assistance or a plan of action to
Purchaser within 24 hours of Purchaser's request. If Supplier fails or is
unable to provide such assistance, Purchaser will have the right to obtain
such assistance at Supplier's cost from a mutually agreed third party. The
provision of or failure to provide such technical support, or service,
advice or recommendations of any character, by Supplier will not grant to
Purchaser any license under any of Supplier's patents or other intellectual
property. Upon the request of Purchaser, senior management of Supplier and
Purchaser will meet to discuss issues including opportunities for cost
reduction, manufacturing issues, supplier competitiveness, delivery and
freight costs and raw material costs.
Supplier will designate an account representative to be responsible for the
management and administration of Purchaser's account and available for
contact by Purchaser at all times on a 24-hour basis. Upon the request of
Purchaser, Supplier will remove and replace the account representative with
an account representative who is acceptable to Purchaser.
11. WARRANTIES.
(a) Each party warrants to the other that the execution and delivery of
this Agreement and the performance of the provisions hereunder have
been duly authorized by all necessary corporate action on its part and
that this Agreement has been duly and validly executed and delivered
by such party and constitutes a valid and binding agreement of such
party, enforceable against such party in accordance with its terms,
subject to bankruptcy laws.
(b) Supplier warrants to Purchaser that:
(i) The execution, delivery and performance of this Agreement
by it and the consummation by it of the transactions
contemplated hereby will not violate or conflict with any
law applicable to it or conflict with or result in any
breach of or constitute (with or
7
without due notice or lapse of time or both) any material
default under or cause any acceleration of, or any
maturity of, any contract or other agreement to which
Supplier is subject or is a party;
(ii) Supplier has, or has made or obtained, as applicable, any
consent approval, order or authorization of, license or
permit from, notice to or registration, declaration or
filing with, any governmental, judicial or regulatory
authority or entity, domestic or foreign, or of any third
party that is or has been required as a condition to the
execution, delivery or performance of this Agreement and
the consummation of the transactions contemplated hereby;
(iii) Supplier has complied with and will fulfill its
obligations under this Agreement in compliance with all
applicable United States and non-United States federal,
state, provincial, municipal, and local laws, statutes,
legislation, regulations, rules and codes, including the
United States Occupational Safety and Health Act, Toxic
Substance Control Act, Hazardous Material Transportation
Act, Motor Carrier Act, Environmental Protection Act, Fair
Labor Standards Act, child labor laws, Food Drug &
Cosmetic Act, Executive Order 11246, Consumer Product
Safety Act, Xxxxxxxx-Xxxxxx Act, Americans with
Disabilities Act, Foreign Corrupt Practices Act,
Bioterrorism Preparedness and Response Act, Homeland
Security Act, Maritime Transportation Security Act, and
the Canadian Food and Drugs Act, Consumer Packaging and
Labeling Act, and Employment Standards Act;
(iv) The Goods, in the form and condition supplied by Supplier
and the intended use thereof, will;
(x) conform to the Specifications, be fit for
Purchaser's intended uses as defined in the
Specifications, merchantable, free from defects,
free from all liens and encumbrances at the time
Purchaser takes possession of the Goods, fit for
human consumption, in compliance in all respects
with all relevant provisions of any applicable law,
including any applicable food or health law, and not
contaminated or adulterated in any way;
(y) comply with any applicable United States and
non-United States federal, state, provincial,
municipal and local laws, statutes, legislation,
regulations, rules and codes; and
(v) with respect to Goods utilizing Supplier's regular line of
stock products and, for the avoidance of doubt, not with
respect to Goods for which Purchaser has supplied the
design or specifications, such Goods will be free from
third party patent infringement (including
8
any United States, Canadian, or Mexican patent, trademark
or copyright) and misappropriation of a trade secret.
(c) Supplier will notify Purchaser promptly if it has knowledge that goods
as shipped to Purchaser by Supplier fail to meet any of the
Specifications.
(d) Each pallet of Goods shipped hereunder will have attached a slip
indicating the date and shift when such Goods were produced or such
other documentation as is reasonably acceptable to Purchaser.
12. INDEMNIFICATION AND SET-OFF.
(a) Supplier will indemnify and Purchaser (and its parent, subsidiaries
and affiliates, and their respective agents, officers, directors,
employees, representatives, successors and permitted assigns) harmless
from and against any losses, claims, damages, costs, penalties, fines,
liabilities or expenses (including court costs, litigation expenses
and reasonable attorneys' fees) (collectively "CLAIMS"), related to a
breach of any warranty given by Supplier under this Agreement, the
provision of Goods hereunder or any negligent act or failure to act by
Supplier or any of Supplier's employees, agents, officers or
contractors.
(b) In the event of any Claim against Purchaser arising from Supplier's
breach of warranty provided in Section 11(b)(v), Supplier agrees to
defend, indemnify, and hold Purchaser (and its parent, subsidiaries
and affiliates, and their respective agents, officers, directors,
employees, representatives, successors and permitted assigns) harmless
from and against all judgments, decrees, damages, costs, and expenses
incurred by or recovered against Purchaser (and its parent,
subsidiaries and affiliates, and their respective agents, officers,
directors, employees, representatives, successors and permitted
assigns) as the result of such actual or alleged infringement or
misappropriation. Upon the institution of any suit or action alleging
infringement or misappropriation against Purchaser (or its parent,
subsidiaries and affiliates, or their respective agents, officers,
directors, employees, representatives, successors and permitted
assigns), Supplier will, at its own expense (1) obtain for Purchaser
the right to continue to use the Goods as such Goods are intended to
be used, and in connection therewith pay any royalties, fees or other
compensation claimed to continue such use, or (2) furnish
non-infringing Goods, provided they are acceptable to Purchaser and
provided they otherwise comply with this Agreement.
(c) Purchaser is entitled to set off against any amount that Purchaser
owes Supplier under this Agreement any amount that Supplier owes to
Purchaser under this Agreement.
(d) Purchaser will provide Supplier with notice of any claim as promptly
as practicable, provided that Purchaser's failure to give timely
notice will not affect its right to indemnification under this SECTION
12 except to the extent Supplier demonstrates actual prejudice caused
by such failure. After such notice if
9
Supplier acknowledges in writing to Purchaser that Supplier will be
obligated under the terms of this SECTION 12 in connection with such
Claim, then Supplier will be entitled, if it elects, to employ
attorneys of its own choice that are reasonably acceptable to Purchase
to handle and defend the same, at Supplier's expense; provided,
however, that Purchaser may, at its own cost, participate in the
defense of the Claim or any appeal there from. Supplier may only
settle such Claim with the prior written consent of Purchaser.
13. RELATIONSHIP OF PARTIES. Neither party hereto will be deemed an agent,
partner, or employee of the other, and neither party has any right or any
other authority to enter into any contract or undertaking in the name of or
for the account of the other or to assume or create any obligation of any
kind, express or implied, on behalf of the other, nor will the acts or
omissions of either party hereto create any liability for the other. This
Agreement will in no way constitute or give rise to a partnership between
the parties. The provision of Goods hereunder will be the sole
responsibility of Supplier.
14. INSURANCE. Supplier will obtain and maintain in full force and effect with
insurance companies acceptable to Purchaser during the Term of this
Agreement and for a period ending 12 months after the termination of
expiration of this Agreement, an occurrence basis commercial general
liability insurance policy, including product liability/completed
operations, contractual liability and property damage with limits of not
less than *** per occurrence. Such insurance will name Purchaser as an
additional insured. Within 10 days of execution of this Agreement and
within 10 days of any request by Purchaser, Supplier agrees to provide a
certificate of insurance to Purchaser evidencing the coverage required by
this Section. Supplier will provide Purchaser with 30 days' prior notice of
any cancellations, failure to renew or material modification of said
insurance policy. Failure of Purchaser to demand such certificate or other
evidence of full compliance with these insurance requirements or failure of
Purchaser to identify a deficiency from evidence that is provided will not
be construed as a waiver of Supplier's obligation to maintain such
insurance. By requiring insurance herein, Purchaser does not represent that
coverage and limits will necessarily be adequate to protect Supplier, and
such coverage and limits will not be deemed as a limitation on Supplier's
liability under the indemnities granted to Purchaser in this contract.
These policies (including any excess policies) shall be primary and
non-contributory with respect to any insurance available to Purchaser as an
additional insured or on any other basis.
15. TERMINATION.
(a) Any Purchaser may terminate this Agreement as it relates to itself
(and not as it relates to any other Purchaser) as provided in SECTION
1 or at any time upon the occurrence of any of the events set forth
below (each a "SUPPLIER EVENT OF DEFAULT") by giving written notice of
such termination to Supplier specifying the Supplier Event of Default
with respect to which such notice is being given and setting forth the
date of determination:
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*** Portions hereof have been omitted and filed separately with the Commission
pursuant to a request for confidential treatment in accordance with Rule 406.
10
(i) upon any breach of any term of this Agreement or of any of
Supplier's representations or warranties or any default by
Supplier in the due performance of its obligations
hereunder that is not cured to the reasonable satisfaction
of Purchaser within 30 days after written notice
specifying such breach;
(ii) failure of Supplier to deliver Goods in accordance with
Purchaser's schedule of delivery dates, or in accordance
with SMI once implemented;
(iii) as provided in SECTION 3, SECTION 6, SECTION 8 or SECTION
16;
(iv) if Supplier will make an assignment for the benefit of
creditors or will file a voluntary petition in bankruptcy
or will be adjudicated a bankrupt or insolvent or will
file any petition or answer seeking reorganization,
arrangement, liquidation or similar relief or will file an
answer admitting the material allegations of a petition
against it for any such relief;
(v) if Supplier becomes insolvent, dissolves, or ceases to do
business;
(vi) if Supplier transfers or attempts to transfer, or there
will occur any transaction the effect of which purports to
transfer, any rights and privileges granted under this
Agreement, or the control or the right to the use thereof,
except as in strict compliance with the terms and
conditions of this Agreement;
(vii) if in Purchaser's reasonable opinion Supplier commits
fraud or any other serious misconduct against Purchaser;
(viii) if within 60 days after the commencement thereof, any
proceeding against Supplier seeking reorganization,
arrangement, liquidation, or similar relief will not have
been dismissed; or
(ix) if any court, tribunal or government agency should require
directly or indirectly material alteration or modification
of any material term or material condition of this
Agreement to the detriment of Purchaser or of the
performance of either party to the detriment of Purchaser.
Upon termination of this Agreement by a Purchaser in accordance with the
provisions of this Section, such Purchaser will not have any liability to
Supplier or any other person.
(b) Supplier may terminate this Agreement at any time upon the occurrence
of any of the events set forth below (each a "PURCHASER EVENT OF
DEFAULT") by giving 30 days' written notice of such termination to
Purchaser specifying the Purchaser Event of Default with respect to
which such notice as being given and setting forth the date of
termination.
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(i) if Purchaser will make an assignment for the benefit of
creditors or will file a voluntary petition in bankruptcy
or will be adjudicated a bankrupt or insolvent or will
file any petition or answer seeking reorganization,
arrangement, liquidation or similar relief or will file an
answer admitting the material allegations of a petition
against it for any such relief;
(ii) if Purchaser becomes insolvent, dissolves, or ceases to do
business;
(iii) if Purchaser fails to make payment of any undisputed
amounts owed to Supplier within 30 days after written
notice specifying such breach;
(iv) if any court, tribunal or government agency should require
directly or indirectly material alteration or modification
of any material term or material condition of this
Agreement to the detriment of Supplier or of the
performance of either party to the detriment of Supplier;
or
(v) if within 60 days after the commencement thereof, any
proceeding against Purchaser seeking reorganization,
arrangement, liquidation, or similar relief will not have
been dismissed.
16. IMPOSSIBILITY OF PERFORMANCE. Neither party will be liable to the other for
any delays in performing or for the failure to perform any of its
obligations or duties hereunder solely as a result of any causes or
contingencies beyond such party's reasonable control and without its fault,
including fires, storms, floods, accidents, labor strikes, acts of God,
acts of terrorism, war, insurrection, or governmental action, orders,
regulations or restrictions (each, a "FORCE MAJEURE EVENT"). If either
party is affected by a Force Majeure Event, the party that has been so
affected will promptly give notice to the other party, explaining the
nature and expected duration of the Force Majeure Event, and will do
everything reasonably possible to resume performance of this Agreement in
accordance with its terms as promptly as possible. If the period of
non-performance exceeds 75 days from the receipt of notice of the Force
Majeure Event, the party whose ability to perform has not been so affected
may, be giving written notice, terminate this Agreement in whole or part
without further liability to the other party. Delay in or failure to pay
amounts due under this Agreement will not constitute a Force Majeure Event.
17. TITLE AND RISK OF LOSS. Responsibility for title and risk of loss will
remain with Supplier until tender of deliver of the Goods to the premises
specified by the Purchaser.
18. NOTICES. Service of all notices or requests permitted or required under
this Agreement will be in writing and will be deemed to have been duly
given when delivered personally, upon receipt of transmission if faxed to
the applicable facsimile number below, three days after mailing by United
States certified mail, return receipt request, or on the next succeeding
day, if mailed by overnight mail or overnight delivery service, to the
applicable address specified below.
12
If to Xxxx'x: 0 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx, Vice President Procurement
Business Services Americas
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Snapple: 000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxx, Vice President Procurement
Business Services Americas
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
In each case,
with a copy to 000 Xxxxxxxxxxx Xxxxxx
(which will not Xxxxx Xxxxxx, XX 00000
constitute notice for Attn: General Counsel
the purpose of this Telephone: (000) 000-0000
Section): Facsimile: (000) 000-0000
If to Supplier: Anchor Glass Container Corporation
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxx, Xxxxxxx
Attn: Executive Vice President, Sales
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to Anchor Glass Container Corporation
(which will not 0000 Xxxxxx Xxxxx Xxxxxxx
constitute notice for Tampa, Florida
the purpose of this Attn: Vice President, General Counsel &
Section): Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
19. CONFIDENTIALITY.
USE OF CONFIDENTIAL INFORMATION. Each party, and their respective
employees, officers, directors, representative, subsidiaries, affiliates,
assigns, subcontractors and any and all persons or business entities acting
under one or any of them (the "DISCLOSEE"), will treat in confidence and
not disclose to others (i) the existence of this Agreement or any of the
terms or provisions hereof or (ii) any confidential information of the
other, which such Disclosee may have furnished to them by the other party
hereto or by any third party, or which such Disclosees may have accessed in
the performance of this Agreement, except to the extent that any such
information is (1) acquired from a third party rightfully having such
information and, to the knowledge of Disclosee, under no obligation not to
disclose it to the Disclosees, (2) already lawfully in the Disclosee's
possession, (3) required by law
13
to be disclosed, or (4) developed by a Disclosee independently of any
confidential information disclosed to such party by, or learned by such
party from the other party (the matters described in clauses (i) and (ii)
are referred to herein as the "INFORMATION"). For purposes of this
Agreement, subject to the exceptions set forth in the preceding sentence,
information regarding a party's cost of materials, production, raw
materials, labor and other costs, suppliers, customers and technology,
whether or not labeled or described by such party as "confidential", will
be considered "confidential information" and within the definition of
"Information", in addition to any other information identified from time to
time by such party as "confidential". All such Information shall be used by
a Disclosee solely for the purpose of performing its obligations under this
Agreement, and not in any way directly or indirectly detrimental to the
other party.
If any Disclosee becomes legally compelled (by law, regulation, deposition,
interrogatory, request for documents, subpoena, civil investigative demand,
or similar process) to disclose any of the Information, the Disclosee shall
provide the other party with prompt prior written notice of such
requirement so the other party may seek a protective order or other
appropriate remedy and/or waive compliance with the terms of this
Agreement. If such protective order or other remedy is not obtained, or the
other party waives compliance with the provisions hereof, the Disclosee
agrees to furnish only that portion of the Information which it is advised
by written opinion of counsel is legally required and to exercise best
efforts to obtain assurance that confidential treatment will be accorded
such Information.
PROTECTION OF PROPRIETARY INFORMATION. Each Supplier and Purchaser agrees
to take appropriate reasonable measures including, but not limited to, the
institution of court proceedings, at their own expense to restrain their
respective representatives, employees, or former employees from authorized
use or disclosure of the Information.
SPECIFIC PERFORMANCE. The parties further acknowledge that improper
disclosure or use of the Information by Supplier or Purchaser, as the case
may be, may cause irreparable harm for which damages may not be an adequate
remedy. Accordingly, the parties agree that in the event of a breach of
this Agreement, Purchaser or Supplier, as the case may be, will be entitled
to injunctive relief, in addition to any remedies they have at law or in
equity.
20. THIRD PARTY BENEFICIARIES. Except as otherwise provided in SECTION 12 of
this Agreement, there are no third party beneficiaries to this Agreement.
21. ENTIRE AGREEMENT; AMENDMENT. This Agreement and the Exhibits attached
hereto constitute the entire agreement between the parties and supersede
and cancel all prior agreements or arrangements, oral or written, express
or implied, with respect to the subject matter hereof. If, at any time,
there should be a conflict between the terms of this Agreement and the
terms of any purchase order, acknowledgement or other document exchanged
between the parties in the normal course of business under this Agreement,
the provisions of this Agreement will control.
14
Neither this Agreement nor any amendment, change, variation, or
modification of this Agreement or any provision hereof will be effective
unless in writing and signed by a duly authorized officer of each of
Supplier and Purchaser. Terms and conditions that may appear on purchase
orders, invoices or similar documents are ineffective to change or expand
the provisions of this Agreement.
The provisions of this Agreement will prevail to the extent any conflict
exists between them and the provisions of any Exhibit unless any provision
in the Exhibit expressly states that it overrides a provision in this
Agreement, in which case the provision in the Exhibit will only override
the provision in this Agreement that it expressly states will be
overridden.
22. ASSIGNMENT/CHANGE IN CONTROL. This Agreement will be binding upon and inure
to the benefit of the successors of the parties hereto. Neither party may
assign or transfer this Agreement or transfer or delegate any right or duty
hereunder without prior written consent of the other except as permitted
herein, provided, however, that Purchaser may assign or transfer this
Agreement or any of its rights hereunder to any of its affiliates. Supplier
may not unreasonably withhold its consent to an assignment of this
Agreement by Purchaser. This Agreement will not be deemed an asset in any
voluntary or involuntary bankruptcy, receivership, insolvency or
reorganization proceedings of or against Supplier or Purchaser.
23. NO WAIVER; CUMULATIVE REMEDIES. Any failure by Purchaser or Seller at any
time, or from time to time, to enforce or require the strict keeping and
performance by the other of any of the terms or conditions of this
Agreement, will not constitute a waiver by Purchaser or Seller of a breach
of any such terms or conditions or the right of such party to avail itself
of the remedies it may have for any such breach at any other time. Unless
otherwise specifically stated in this Agreement, remedies of the parties
set forth therein are cumulative and in addition to any other remedies
available at law or in equity.
24. GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement will be governed by
and construed in accordance with the laws of the State of New York without
regard to the conflict or choice of law principles thereof. Each of the
parties hereto irrevocably submits to the exclusive jurisdiction of any
state or federal court located within the County of New York in the State
of New York, for the purposes of any suit, action or other proceeding
arising out of this Agreement or any transaction contemplated hereby. Each
of the parties hereto further agrees that service of any process, summons,
notice or document by U.S. registered mail to such party's respective
address set forth in SECTION 18 will be effective service of process for
any action, suit or proceeding in New York with respect to any matters to
which it has submitted to jurisdiction as set forth above in the
immediately preceding sentence. Each of the parties hereto irrevocably and
unconditionally waives any objection to the laying of venue of any action,
suit or proceeding arising out to this Agreement or the transaction
contemplated hereby in any state or federal court located within the County
of New York in the State of New York, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.
15
The parties expressly exclude from this Agreement the applications of the
United Nations Convention on Contracts for the International Sale of Goods,
and further exclude from this Agreement the applications of the
International Sale of Goods Contracts Convention Act, S.C. 1990-1991, c.13,
and the International Sale of Goods Act, R.S.O. 1990, C.I.10, as amended.
25. HEADINGS. The headings of this Agreement are for convenience of reference
only and will not limit or otherwise affect the meaning of any provision
herein.
26. SURVIVAL. The provisions of SECTION 11, 12, 14, 19, 20, 21, 24, 26, 28, AND
29 will survive the termination or expiration of this Agreement.
27. ADDITIONAL TERMS. [Intentionally Omitted]
28. SEVERABILITY. If one or more provisions contained in this Agreement is
deemed or held to be invalid, illegal or unenforceable in any respect under
any applicable law, this Agreement will be construed (i) with the invalid,
illegal or unenforceable provision deleted, and the validity, legality and
enforceability of the remaining provisions contained herein will not be
affected or impaired thereby and (ii) to provide the parties with the
economic and other rights that most closely approximate those in this
Agreement without giving rise to such a consequence.
29. INTERPRETATION.
(a) All references in this Agreement to Sections, subsections, and other
subdivisions refer to the corresponding Sections, subsections, and
other subdivisions of this Agreement unless expressly provided
otherwise. The words "THIS AGREEMENT," "HEREIN," "HEREBY,"
"HEREUNDER," and "HEREOF," and words of similar import, refer to this
Agreement as a whole and not to any particular subdivision unless
expressly so limited. The word "INCLUDING" (in its various forms)
means "INCLUDING WITHOUT LIMITATION." Pronouns in the masculine,
feminine, or neuter genders will be construed to state and include any
other gender, and words, terms, and titles (including terms defined
herein) in the singular form will be construed to include the plural
and the conjunctive and disjunctive forms of such defined terms.
Unless otherwise specifically indicated, the symbol "$" refers to
dollars of the United States of America.
(b) Any obligation, liability or right of Xxxx'x or Snapple hereunder as
"Purchaser" are obligations, liabilities and rights of such party
severally, and its understood that such obligation, liabilities and
rights are not obligations, liabilities and rights of any other party.
30. COUNTERPART. This Agreement may be executed and delivered, including by
facsimile transmission, in any number of counterparts, all of which will be
considered one and the same agreement and will become effective when one or
more counterparts have been signed by each of the parties and delivered to
the other parties, it being understood that all parties need not sign the
same counterpart.
16
31. FURTHER ASSURANCES. Upon Purchaser's request, Supplier will take, or cause
to be taken, any other action that may be reasonably necessary to effect
the transaction contemplated by this Agreement.
[Remainder of Page Intentionally Left Blank]
17
IN WITNESS THEREOF, the parties have caused this Agreement to be executed
by their respective officers on the date first written above.
ANCHOR GLASS CONTAINER CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: EVP - Sales
XXXX'X INC.
By: /s/ Xxxx Xxxxxxx
----------------
Name: Xxxx Xxxxxxx
Title: V.P. Procurement, Americas
SNAPPLE BEVERAGE GROUP, INC.
By: /s/ Xxxx Xxxxxxx
----------------
Name: Xxxx Xxxxxxx
Title: X.X. Xxxxxxxxxxx, Xxxxxxxx
00
XXXXXXX X-0
***
----------
*** Portions hereof (four pages) have been omitted and filed separately with
the Commission pursuant to a request for confidential treatment in accordance
with Rule 406.
EXHIBIT B-2
***
----------
*** Portions hereof have been omitted and filed separately with the Commission
pursuant to a request for confidential treatment in accordance with Rule 406.
2
EXHIBIT B-3
***
----------
*** Portions hereof (two pages) have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment in accordance with
Rule 406.
SNAPPLE BEVERAGE GROUP
VIA FACSIMILE TO (000) 000-0000
*** 2003
Mr. John Day
Executive Vice President, Sales
Anchor Glass Container Corporation
0000 Xxxxxx Xxxxx Xxxxxxx XX00
Xxxxx, XX 00000
Xx. Xxxx Xxxxxxx
Vice President, General Counsel & Secretary
Anchor Glass Container Corporation
0000 Xxxxxx Xxxxx Xxxxxxx XX00
Xxxxx, XX 00000
Gentlemen:
Reference is made to that certain Agreement for the Supply of Goods dated
*** 2003, by and among Xxxx'x Inc., Snapple Beverage Group, Inc., and
Anchor Glass Container Corporation, as amended by that certain letter
agreement dated *** 2003. Capitalized terms used but not defined herein
will have the meaning specified in the Agreement.
The first sentence of Section 2 will be amended and restated to be "During
the Term of this Agreement and subject to the terms and conditions of this
Agreement, Supplier will serve as the sole supplier of Purchaser
requirements for the Goods as specified on EXHIBIT A-1 attached hereto."
All other terms of the Agreement remain in full force and effect and are
hereby ratified.
Please indicate your agreement to and your acceptance of the foregoing by
executing the enclosed copy of this letter, which may be executed in
counterparts, and returning the executed copy to my attention.
----------
*** Portions hereof have been omitted and filed separately with the Commission
pursuant to a request for confidential treatment in accordance with Rule 406.
Sincerely yours,
Xxxx'x Inc. Snapple Beverage Group, Inc.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------- ------------------
Xxxx Xxxxxx, CFO Xxxxxx Xxxxxxx, SVP Operations/S
Chain
ACCEPTED AND AGREED:
Anchor Glass Container Corporation
By: /s/ Xxxx X. Day
---------------
Title: Xxxx X. Day, V.P. Sales
2
SNAPPLE BEVERAGE GROUP
VIA FACSIMILE TO (000) 000-0000
*** 2003
Mr. John Day
Executive Vice President, Sales
Anchor Glass Container Corporation
0000 Xxxxxx Xxxxx Xxxxxxx XX00
Xxxxx, XX 00000
Xx. Xxxx Xxxxxxx
Vice President, General Counsel & Secretary
Anchor Glass Container Corporation
0000 Xxxxxx Xxxxx Xxxxxxx XX00
Xxxxx, XX 00000
Gentlemen:
Reference is made to that certain Agreement for the Supply of Goods dated ***
2003, by and among Xxxx'x Inc., Snapple Beverage Group, Inc., and Anchor Glass
Corporation, as amended by those certain letter agreements dated *** 2003 and
*** 2003. Capitalized terms used but not defined herein will have the meaning
specified in the Agreement.
Notwithstanding anything in the Agreement to the contrary, in calendar years
***, Purchaser may order, purchase or obtain up to ***
Notwithstanding anything in the Agreement to the contrary, Purchaser and
Supplier agree that at the option of Purchaser (exercisable at any time before
*** 2003 upon written notice to Supplier), ***
----------
*** Portions hereof have been omitted and filed separately with the Commission
pursuant to a request for confidential treatment in accordance with Rule 406.
*** Portions hereof have been omitted and filed separately with the Commission
pursuant to a request for confidential treatment in accordance with Rule 406.
Please indicate your agreement to and your acceptance of the foregoing by
executing the enclosed copy of this letter, which may be executed in
counterparts, and returning the executed copy to my attention.
Sincerely yours,
Xxxx'x Inc. Snapple Beverage Group, Inc.
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxx Xxxxxxx
---------------- ----------------
ACCEPTED AND AGREED:
Anchor Glass Container Corporation
By: /s/ Xxxx X. Day
---------------
Title: Xxxx X. Day, V.P. Sales
2
