SECOND AMENDMENT TO SUPPLY AGREEMENT
EXHIBIT 10.3
CERTAIN INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT, AS INDICATED BY “XXX”, PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
SECOND AMENDMENT TO SUPPLY AGREEMENT
This SECOND AMENDMENT TO SUPPLY AGREEMENT (this “Amendment”) is made and entered into as of this 1st day of April, 2005 by and between Panera, LLC, a Delaware limited liability company (“Panera”), and Xxxxx Soda Co., a Washington corporation with a principal place of business at 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxx, XX 00000 (“Seller”).
WITNESSETH:
WHEREAS, Panera and Seller are parties to that certain Supply Agreement dated May 28, 2003, as amended by that certain First Amendment to Supply Agreement dated as of May 27, 2004 (as amended, the “Agreement”); and
WHEREAS, Panera and Seller desire to further amend the Agreement in the manner hereinafter set forth.
NOW, THEREFORE, in consideration of these premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
| 1. | Section 10.01 is hereby amended by deleting the reference to “May 27, 2005” and inserting in its place “[XXX]”. |
| 2. | Schedule II, Distribution Centers, is hereby deleted in its entirety and replaced with the new Schedule I attached hereto and incorporated herein by reference. |
| 3. | Schedule V, Pricing List, is hereby deleted in its entirety and replaced with the new Schedule V attached hereto and incorporated herein by reference. |
| 4. | Schedule V III, Schedule of Existing Flavors of Xxxxx Soda, which was inadvertently omitted as an attachment to the Agreement, is hereby attached to this Amendment and incorporated into the Agreement by reference. |
| 5. | Except to the extent specifically amended by this Amendment, all of the terms, provisions, conditions, covenants, representations and warranties contained in the Agreement shall be and remain in full force and effect and the same are hereby ratified and confirmed. |
| 6. | This Amendment shall be binding upon and inure to the benefit of Panera and Seller and their respective permitted successors and assigns in accordance with Section 6 of the General Terms and Conditions Addendum Attached to the Agreement. |
| 7. | Panera and Seller warrant and represent that the individual who is signing this Amendment on behalf of Panera and Seller and whose signature appears below, is authorized to execute this Amendment and to bind Panera and Seller to the terms contained herein. |
| 8. | This Amendment will be governed by and construed in accordance with the laws of the State of Missouri, United States of America. |
Certain information has been omitted from this page, as indicated by “XXX”, pursuant to a request for confidential treatment that has been filed separately with the SEC.
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| 9. | This Amendment may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Amendment and all of which, when taken together, will be deemed to constitute one and the same agreement. |
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to Supply Agreement as of the date and year first referenced ahoy.
| PANERA LLC | ||
| By: |
/s/ | |
| Title: |
||
| XXXXX SODA CO. | ||
| By: |
/s/ Xxxxxxxx X. Cue | |
| Title: |
COO / CFO | |
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SCHEDULE II
Distribution Centers, Distributors, Purchase order Addresses
| Distributor |
Distribution Center |
Contact | ||
| [XXX] | [XXX] | [XXX] | ||
| [XXX] | [XXX] | [XXX] | ||
| [XXX] | [XXX] | [XXX] | ||
| [XXX] | [XXX] | [XXX] | ||
| [XXX] | [XXX] | [XXX] | ||
| [XXX] | [XXX] | [XXX] | ||
| [XXX] | [XXX] | [XXX] | ||
| [XXX] | [XXX] | [XXX] | ||
| [XXX] | [XXX] | [XXX] | ||
| Purchase Order Addresses: |
||||
| [XXX] | [XXX] | [XXX] | ||
| [XXX] | [XXX] | [XXX] | ||
| [XXX] | ||||
| Order Lead Time: |
||||
| [XXX] calendar days: | ||||
Certain information has been omitted from this page, as indicated by “XXX”, pursuant to a request for confidential treatment that has been filed separately with the SEC.
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SCHEDULE V
Pricing
| Corporate Xxxxx Soda: |
||
| Root Beer (Sugar Free Xxxxx) | $[XXX] p/24-pack case | |
| Black Cherry (Sugar Free Xxxxx) | $[XXX] p/24-pack case | |
| Root Beer | $[XXX] p/24-pack case | |
| Fu Fu Xxxxx | $[XXX] p/24-pack case | |
| Cream | $[XXX] p/24-pack case | |
| Green Apple | $[XXX] p/24-pack case | |
| Corporate Xxxxx Naturals: |
||
| Limes with Orange | $[XXX] p/12-pack case | |
| Berry White | $[XXX] p/12-pack case | |
| D’Peach Mode | $[XXX] p/12-pack case | |
Certain information has been omitted from this page, as indicated by “XXX”, pursuant to a request for confidential treatment that has been filed separately with the SEC.
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SCHEDULE VIII
SCHEDULE OF FLAVORS OF XXXXX SODA
| · [XXX] | · [XXX] | · [XXX] | ||
| · [XXX] | · [XXX] | · [XXX] | ||
| · [XXX] | · [XXX] | · [XXX] | ||
| · [XXX] | · [XXX] | · [XXX] | ||
| · [XXX] | · [XXX] | · [XXX] | ||
| · [XXX] | · [XXX] | · [XXX] | ||
| · [XXX] | · [XXX] | · [XXX] | ||
| · [XXX] | · [XXX] | · [XXX] | ||
| · [XXX] | · [XXX] | · [XXX] | ||
| · [XXX] | · [XXX] | · [XXX] | ||
| · [XXX] | · [XXX] | · [XXX] | ||
| · [XXX] | · [XXX] | · [XXX] | ||
| · [XXX] | · [XXX] | · [XXX] | ||
| · [XXX] | · [XXX] | · [XXX] | ||
| · [XXX] | · [XXX] | · [XXX] | ||
| · [XXX] | · [XXX] | · [XXX] |
SCHEDULE OF FLAVORS OF XXXXX NATURALS
| · [XXX] | · [XXX] | |
| · [XXX] | · [XXX] | |
| · [XXX] | · [XXX] | |
| · [XXX] | · [XXX] | |
| · [XXX] | · [XXX] | |
| · [XXX] | · [XXX] | |
| · [XXX] | · [XXX] | |
| · [XXX] | · [XXX] | |
| · [XXX] | · [XXX] | |
| · [XXX] | · [XXX] |
Certain information has been omitted from this page, as indicated by “XXX”, pursuant to a request for confidential treatment that has been filed separately with the SEC.
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