CAPTAIN D'S - INTERNATIONAL DIVERSEFOODS
SUPPLY AGREEMENT
THIS SUPPLY AGREEMENT (the "Agreement") is made this 19th day of
January, 2000, by and between International DiverseFoods, Inc., a Tennessee
corporation, 189 Spence Lane, Nashville, Tennessee 37210 ("Seller"), and the
CAPTAIN D's Restaurants DIVISION OF SHONEY'S, INC., a Tennessee corporation,
1717 Elm Hill Pike, Suite A-1, Nashville, Tennessee 37210 ("Buyer"). This
Agreement replaces and supersedes any and all previous agreements between
Buyer and Seller.
RECITALS
Seller desires to supply Buyer with the products currently being sold to
Buyer listed on Schedule I referred to as the "Products"; and Buyer desires
to purchase Buyer's requirements for the Products from Seller, subject to the
terms and provisions hereof.
Seller and Buyer now agree as follows:
1. PURCHASE AND SALE OF PRODUCTS: PRODUCT REQUIREMENTS. Seller
agrees to sell, and Buyer agrees to purchase Buyer's requirements for the
Products listed on Schedule 1, that are to be used at Captain D's restaurants
operated by Buyer, at the prices and in accordance with the terms and
provisions set forth in this Agreement.
2. TERM. Unless terminated earlier or extended in accordance with its
terms, this Agreement shall begin on January 24, 2000 (the "Effective Date")
and extend for 30 months through July 21, 2002.
3. DISCONTINUANCE OF PRODUCTS AND NEW PRODUCTS.
3.1. Discontinuance of Products. Buyer, in its discretion, may
discontinue the use, of any of the Products at any time. In the event of any
such discontinuance, Buyer shall purchase from Seller any inventory of such
discontinued Product being held by Seller (not to exceed thirty (30) days of
Buyer's average usage unless otherwise authorized in writing by Buyer) that
Seller is unable to dispose of promptly in the ordinary course of business
(at prices then being paid by Buyer) as well as any inventory of raw
ingredients and packaging that Seller cannot use in the normal course of
business (not to exceed thirty (30) days of Buyer's average usage unless
otherwise authorized in writing by Buyer).
3.2 New Products. If during the term of this Agreement, Buyer desires
to develop, buy or use any product not specifically identified on Schedule I
in the restaurants operated by Buyer ("New Product"), Buyer, in Buyer's
absolute discretion, may offer Seller the opportunity to submit samples and
bids on a similar product, based upon Buyer's specifications for the New
Product. However, Buyer shall have no obligation to purchase the New Product
from Seller. It is also acknowledged and agreed
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that changes in specifications pursuant to Section 6. 2 shall not constitute
New Products under Section 3.2,
4. PRICES.
4.1. Initial Prices. Upon the Effective Date, the Products and the
prices for the Products shall be provided by Buyer or Seller.
4.2. Adjustments. The prices of the Products shall be subject to
adjustments as a result of changes in the cost of the components of the
Products as follows:
(a) The prices of the Products may be adjusted quarterly if
market prices for raw materials and packaging change from
those in effect on ________. The prices for a particular
quarter shall be set no later than fifteen (15) business
days prior to the beginning of each quarter.
(b) In the event Buyer changes the specifications of a Product,
as set forth in Section 6.2, the price or that Product shall
be adjusted to reflect any change (which may be either an
increase or a decrease) in the raw ingredient, packaging or
production costs resulting from the change in the Product
specifications.
4.3. Meeting Competitive Prices. In the event Buyer receives a price
quote from a competing supplier for products acceptable to Buyer, Seller
will either meet the competing market price or Buyer shall be allowed to
purchase the Product from the other supplier and that Product shall be
deleted from Schedule I and will no longer be subject to the terms and
provisions of this Agreement. Seller will meet the competing market quoted
price under the following conditions:
(1) Buyer will notify Seller of the price quote and
provide product information and a two gallon sample
of the product.
(2) Seller will quote a selling price for a product of
acceptable quality and formulation to that of the
competing product within thirty (30) days of
Buyer's notification to Seller of the price quote
and receipt of the sample product.
(3) Buyer will submit quotes on competing products no
more often than on a semi-annual basis for a period
of sixty days preceding each December 1 and June 1
during the term of this Agreement.
(4) Notwithstanding the restriction set forth in (3)
above, in the event a situation arises which offers
both Buyer and Seller an opportunity for less
expensive ingredients, formulations or packaging,
Buyer may submit these concepts at any time,
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not to exceed six product-specific submissions in
any twelve (12) month period.
4.4. If Seller reasonably believes that the competing price quoted. by
another supplier is not reflective of market prices described in Section 4.3,
Seller can decline to match the competing price and Buyer may purchase the
competing product, and that product shall be deleted from Schedule I and will
no longer be subject to the terms and provisions of this Agreement,
4.5. Purchases by Buyer's Franchisees. In the event any of Buyer's
franchisees desire to purchase any of the Products from Seller, Seller agrees
to offer the Products to Buyer's franchises.
5. RAW MATERIALS.
5.1. Purchase Requirements. At Buyer's written direction and on Buyer's
behalf, Seller shall book all orders for Seller's requirements of any raw
ingredient or packaging material for the Products. Seller shall bear the
market risk for the failure to enter into any such contracts that Buyer
requests. At anytime during the term of this Agreement, if any of the
Products are no longer subject to this Agreement or if the Agreement is
terminated, Buyer, at Buyer's option, shall have the right to require Seller
to transfer orders for raw ingredients and packaging that would have been
used in the production of such Product(s), for which Seller has not yet taken
delivery. Seller shall, at Buyer's direction, transfer such orders to Buyer's
designated agent, which Buyer agrees to accept. If Seller has not booked
orders as directed in writing by Buyer, Seller shall book such orders and
sell the raw ingredients and packaging to Buyer or Buyer's designated agent
at the cost set forth in Buyer's original written directions.
5.2. Price Adjustments. In determining any adjustments in Product
prices under Section 4.2(b), the raw ingredient cost utilized in making such
adjustments shall utilize the costs under any contracts that Seller has
entered into at Buyer's request pursuant to Section 5. 1.
6. PRODUCT FORMULAE AND SPECIFICATIONS;
CONFIDENTIALITY.
6.1. Ownership. The formulae and specifications (including without
limiting the foregoing, the Captain D's fish coatings) listed on Schedule II
are Buyer's trade secrets that are the sole and exclusive property of Buyer
and Confidential per Section 6.3.
6.2. Specification Changes. Buyer, in its discretion, may at any time,
upon notice that is commercially reasonable under the circumstances, change
Buyer's Specifications for any of the Products, subject to Section 4.2(a);
provided, however, that if Buyer changes a Product specification in a manner
that would require any capital expenditures by Seller in order to comply with
such specifications and Seller chooses not to make such capital expenditures
and, therefore, not produce the respecified Product,
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Buyer shall be free to purchase such respecified Product from an alternative
source, and that Product shall be deleted from Schedule I and will no longer
be subject to the terms and provisions of this Agreement. Buyer shall not
circumvent or attempt to circumvent its obligations hereunder through
respecification of Products.
6.3. Confidentiality. Buyer and Seller shall maintain all information
each provides to the other and that is designated by the party providing the
information as confidential or proprietary (the "Confidential Information")
in strict confidence and shall not disclose any of that Confidential
Information to any person other than employees or agents of Seller and Buyer
with a need to know or as otherwise required by securities, franchise or
other laws. Buyer and Seller shall not use the Confidential Information for
any purpose other than in order to provide the Products and services covered
by this Agreement in accordance with its terms. After the termination of this
Agreement, each party shall return all Confidential Information to the other
party, or destroy it and furnish an affidavit confirming its destruction. All
terms and conditions of this Agreement and the attached Schedules are
designated as Confidential Information, however, Buyer shall. have the right
to submit samples, prices and specifications to obtain competitive bids.
7. F.O.B. TERMS. The purchase prices set forth on Schedule I are
F.O.B., 189 Spence Lane, Nashville, Tennessee 37210. The term F.O.B. as used
in this Agreement is a price term only, and:
(a) does not include the cost of transportation from Seller's
place of business, which costs shall be paid by Buyer;
(b) delivery of the products will be to the location within the
United States as may be designated by Buyer in any purchase order or
other document initiating a purchase under this Agreement; but
(c) title to the Products does not pass to Buyer until inspected
and accepted by Buyer's agent or distribution representative.
8. ORDERS. Orders for the Products shall continue to be given and
received, and delivery times established in accordance with past practices
between Buyer and Seller.
9. PAYMENT OF PURCHASE PRICE. Payment terms are net thirty days
after receipt of the appropriate invoice. Any late payment shall bear simple
interest at the rate of one percent (I%) per month from the date that such
payment was due until paid.
10. SELLER'S GUARANTEE. The Products sold by Seller to Buyer are
hereby guaranteed as of the date of such shipment or delivery to: (a) not be
adulterated or misbranded within the meaning of the Federal Food, Drug and
Cosmetic Act (the "Act"), (b) not be an article which cannot be introduced
into interstate commence under the Act, and (c) be in compliance with all
applicable federal, state and local laws and regulations whether now or
hereafter enacted. This Guaranty I is continuing and shall be in full force
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and effect, and shall be binding upon Seller, with respect to each and every
Product shipped or delivered to Buyer.
11. INSURANCE AND INDEMNIFICATION.
11.1. Insurance Coverage.
Seller agrees to maintain in effect throughout the entire term of this
Agreement, insurance coverage with reputable insurance companies covering
workers' compensation and employer's liability, automobile liability,
commercial general liability, including product liability and excess
liability, with limits of not less than $6,000,000 to protect Seller and
Buyer from the liabilities insured against by such coverages. Seller's
insurance described herein shall be primary. Seller shall furnish Buyer with
a certificate evidencing the obligation of Seller's insurance carriers not to
cancel or materially amend such policies without 30 days prior written notice
to Buyer. In addition, Buyer shall be named an additional insured with
respect to the commercial general liability policy, including products
liability and any excess umbrella liability coverage.
11.2. Indemnification and Hold Harmless by Seller. Seller will
indemnify, defend and hold harmless the Buyer and its employees, officers,
subsidiaries, affiliates, directors, shareholders, franchisees, and customers
("Indemnitees") from and against all actions, suits, claims and proceedings,
and any judgments, damages, fines, expenses, losses, liabilities, costs and
expenses (including, without limitation, reasonable attorneys' fees and court
costs), (collectively "Costs") incurred by Indemnitees (whether as a result
of a third-party claim, or otherwise) as a result of:
a. any breach of Seller's guarantee under Section 10 with respect to any
Products sold to Buyer by Seller, unless the breach was caused by a
written requirement, written Specification, or carrier specified in
writing by Buyer; or
b. the nonfulfillment of any covenant, agreement or obligation to be
performed by Seller under or pursuant to this Agreement; or
c. any alleged violation of rights under patents, trademarks, copyrights
or applications therefor, unless the user of the allegedly infringing
item was required or specified by Buyer in writing; or
d. any violation by Seller of any statute, regulation or ordinance of
any governmental authority regarding the branding, manufacture, sale
or delivery of the goods or services furnished or required to be
furnished hereunder, unless the violation was caused by a written
requirement or written Specification of Buyer; or
e. any negligent act or omission of Seller arising out of or related to
the manufacture (including, but not limited to, any claim arising out
of a
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failure to manufacture the Products in accordance with the written
Specifications) branding, shipment or delivery of food or the sale
of the Products by Seller.
11.3. Indemnification and Hold Harmless by Buyer. Buyer will
indemnify, defend and hold harmless Seller and its officers, employees,
directors, and shareholders from and against any Costs incurred by Seller
(whether as a result of a third-party claim, or otherwise) as a result of:
a. the nonfulfillment of any covenant, agreement or obligation to be
performed by Buyer under or pursuant to this Agreement; or
b. alleged violations by Buyer or Seller of rights under patents,
trademarks, copyrights or applications therefor if the use of the
allegedly infringing item was required or specified by Buyer in
writing; or
c. violations by Buyer (or by Seller if the alleged violation was caused
by a written requirement or written specification of Buyer) of any
statute, regulation or ordinance of any governmental authority with
respect to the Products sold hereunder; or
d. any negligent act or omission of Buyer including, without limitation,
any claim arising out of Seller's actions taken in accordance with
written instructions from Buyer.
Seller and Buyer's obligation to indemnify and hold harmless survives
the termination of this Agreement.
12. TERMINATION.
12.1. Termination By Buyer. Buyer may terminate this Agreement for
cause only upon breach by Seller of any of its obligations under this
Agreement and failure by Seller to cure such breach within thirty (30) days
following written notice of breach. In the event Seller commits three or
more breaches of this Agreement within a twelve (12) month period, Buyer may
in good faith at its option, terminate this Agreement if Seller commits a
subsequent breach without affording Seller any opportunity to cure the
breach, effective immediately upon notice to Seller.
12.2. Termination By Seller. Seller may terminate this Agreement for
cause only upon Buyer's breach of its obligations under this Agreement and
failure by Buyer to cure such breach within thirty (30) days following
written notice of breach. In the event Buyer commits three or more breaches
of this Agreement within a twelve (12) month period, Seller may in good faith
at its option, terminate this Agreement if Buyer commits a subsequent breach
without affording Buyer any opportunity to cure the breach, effective
immediately upon notice to Buyer.
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13. REMEDIES. In no event shall either party be liable to the other
for any lost profits, punitive, special or exemplary damages; provided,
however, that this sentence is not intended to and shall not limit the right
of either party to this Agreement to receive indemnity and full reimbursement
under Section 11 for any claims by or amounts (whether deemed compensatory,
exemplary or punitive) that one of the parties becomes obligated to pay to a
third party pursuant to any judgment or settlement.
14. NOTICES. Any notice required or desired to be furnished under
this Agreement shall be in writing, postage prepaid, and shall be sent by
United States, certified, registered or express mail, by an overnight
delivery service (e.g., Federal Express) or by facsimile transmission and
addressed or delivered to the party receiving notice at the address
designated below. Any notice shall be deemed to be given (i) when received or
when first refused if mailed or sent by overnight delivery service, and (ii)
when received if transmitted by facsimile transmission. All such notices
shall be addressed as follows:
If to Buyer: Captain D's
ATTN, Vice President-Purchasing
1717 Elm Hill Pike, Suite A- I
Nashville, Tennessee 3 7210
FAX No. (615) 231-2788
with a copy to ATTN: General Counsel
FAX No. (615) 231-2734
If to Seller: International Diversefoods, Inc.
ATTN: Chief Operating Officer
189 Spence Lane
Nashville, Tennessee 37210
FAX No.: (615) 231-5928
15. ASSIGNMENT. This Agreement shall be binding upon and shall inure
to the benefit of each of the parties and their respective successors and
assigns; provided, however, that, except as provided herein, neither Seller's
nor Buyer's obligations under this Agreement may be assigned, transferred,
conveyed or delegated without the written consent of the other party hereto.
Notwithstanding the foregoing, the parties agree that if, during the term of
this Agreement, either party sells or transfers all or substantially all of
its business or assets (whether by means of an asset or stock sale, exchange,
merger, consolidation or otherwise), such party shall assign its rights and
obligations hereunder insofar as they relate to the business involved or
assets being sold to the purchaser or transferee of such business or assets.
The transferring party's obligations under this Agreement shall be deemed
satisfied in such case provided the transferee, in good faith, assumes and
accepts such obligations.
16. WAIVER. The failure of either Buyer or Seller to enforce any
provision of this Agreement, shall not constitute a waiver of such breach or
non-performance, unless such waiver shall be in writing and signed by the
party executing the waiver. Any waiver
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so signed shall not constitute a waiver of any different or subsequent breach
or non-performance.
17. VALIDITY OF PROVISIONS. Whenever possible, each provision and
term of this Agreement shall be interpreted in such a manner as to be valid
and enforceable; provided, however, that in the event any provision or term
of this Agreement should be determined to be invalid or unenforceable, all
other provisions and terms of this Agreement and the application thereof to
all persons and circumstances subject thereto shall remain unaffected to the
extent permitted by law.
18. FORCE MAJEURE. Either party shall-be excused from performance of
its duties under this Agreement during any period of time when that party is
prevented from so performing due to act of God, war, strike, riot, acts of
governmental authorities, shortages in supply in the marketplace of
ingredients used in manufacturing the Products (other than as a result of
Seller's acts or omissions) or other cause beyond its control; provided,
however, that should such continue for a period of thirty (30) days, the
other party may, at its option, terminate this Agreement with respect to any
Products the delivery or manufacture of which has been prevented.
19. ENTIRE AGREEMENT; MODIFICATION. This Agreement, as executed,
constitutes the entire agreement between the parties and no representation,
promise, condition, warranty or understanding, other than herein set forth,
shall be binding upon any of the parties hereto. None of the provisions of
this Agreement shall be waived, altered or amended except in a writing signed
by the party to be bound thereby.
20. BOOKS AND RECORDS. During the term of this Agreement and for a
period of five (5) years following the termination of this Agreement, Seller
agrees to maintain full and complete records of its business operations
relating to Products purchased by Buyer, including, without limitation, cost
accounting records and invoices that support the raw ingredient and packaging
costs of any of the Products. Upon prior reasonable notice, Seller shall
allow representatives of Buyer to inspect such books and records at all
reasonable times in order to monitor Seller's compliance with this Agreement.
All inspections shall be at the expense of Buyer; provided, however, if the
inspection results in a discovery of a failure by Seller to abide by the
terms of this Agreement in any material respect, then Seller shall pay or
reimburse Buyer for any and all reasonable expenses incurred by Buyer in
connection with the inspection, including, but not limited to, legal and
accounting fees, as well as any damages due Buyer for Seller's failure.
21. GOVERNING LAW. The terms of this Agreement shall be interpreted
and construed in accordance with the laws of the state of Tennessee. The
federal and state courts in Davidson County, Tennessee shall constitute the
proper, sole and exclusive venue and forum for any action arising out of or
in any way related to this Agreement. Each party to this Agreement hereby
consents to any of those courts' exercise of personal jurisdiction over the
party in that type of action and expressly waives all objections the party
otherwise might have to that exercise of personal jurisdiction.
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22. ARBITRATION. All actions, disputes, claims or controversies of
any kind between the parties to this Agreement, including, but not limited to
any action, disputed, claim or controversy arising out of the sale or
delivery by Seller of any Products to Buyer ("Dispute") shall be resolved by
binding arbitration in Nashville, Tennessee, administered by the American
Arbitration Association (the "AAA") in accordance with the Commercial
Arbitration Rules of the AAA (the "Rules") and, to the maximum extent
applicable, the Federal Arbitration Act, as supplemented by the Tennessee
Arbitration Act, Arbitrations shall be conducted before one arbitrator
mutually agreeable to Buyer and Seller. If the parties cannot agree on an
arbitrator within thirty (30) days after the request for arbitration, then
the arbitration shall take place before an arbitrator selected in accordance
with the Rules. The arbitrator shall not have the power (a) to alter,
modify, amend, add to, or subtract from any term or provision of this
Agreement or (b) to grant interim injunctive relief prior to the award.
Judgment of any award rendered by an arbitrator may be entered in any court
having jurisdiction. All fees of the arbitrator and other costs and expenses
of the arbitration shall be paid by Seller and Buyer equally unless otherwise
awarded by the arbitrator; provided, however, that the nonprevailing party in
an arbitration shall pay all reasonable attorneys' fees and expenses incurred
by the prevailing party in connection with the Dispute and the arbitration.
In addition to the grounds set forth in Section 295313 of the Tennessee
Arbitration Act, any court described in Section 21 of this Agreement may
vacate an award of the arbitrator, in whole or in part, to the extent the
award is contrary to applicable law or contrary to the clear and convincing
evidence otherwise presented to the arbitrator. The court shall have the
authority to reverse an award (in whole or in part) or vacate and remand the
award (in whole or in part) for rehearing by the arbitrator.
23. RELATIONSHIP OF THE PARTIES. Seller is and shall be an
independent contractor under this Agreement, and no partnership, joint
venture or fiduciary relationship shall exist between Buyer and Seller.
24. LIMITED LICENSE TO USE TRADEMARKS, SERVICE MARKS AND
LOGOTYPES. Buyer hereby grants Seller during the term of this Agreement a
limited license to use Buyer's trademarks, service marks, and logotypes in
connection with the sale of the Products in accordance with the terms of this
Agreement and any written instructions from Buyer regarding the use of
Buyer's trademarks, service marks, and logotypes. Seller agrees to only sell
Products bearing Buyer's trademarks, service marks, and logotypes to
franchisees of Buyer or Buyer's representatives.
25. FINANCIAL INFORMATION. Seller will maintain and make available
to Buyer at reasonable intervals, upon written request, a Business
Information Report containing current financial information compiled by Dun
& Bradstreet or another nationally recognized commercial credit reporting
agency.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
each by its duty authorized officer or representative, as of the date and
year first above written.
INTERNATIONAL DIVERSEFOODS, INC. CAPTAIN D'S RESTAURANTS
DIVISION OF SHONEY'S, INC.
By: /s/ By: /s/
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Title: Exec VP and COO Title: V.P. Purchasing
-------------------------- -----------------------------
By: /s/ Ronald E. Walker
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Title: 1-19-00
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By: /s/
--------------------------------
Title: Pres/CEO
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