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EXHIBIT 10.74
SUPPLY AGREEMENT
THIS SUPPLY AGREEMENT (this "Agreement"), dated as of February 18,
1998, made by and between A.M.G. Medical Inc., a Quebec corporation ("AMG"), and
Can-Am Care Corporation, a New York corporation ("Can-Am"),
W I T N E S S E T H T H A T:
WHEREAS, AMG is, among other things, engaged in the manufacture and
distribution of private label monolet compatible lancets for use by diabetic
consumers ("M/C Lancets");
WHEREAS, Can-Am has purchased M/C Lancets from AMG and wishes to
continue to purchase M/C Lancets from AMG; and
WHEREAS, AMG desires to continue to supply M/C Lancets to Can-Am on the
terms and conditions and for the prices set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto covenant and agree
as follows:
SECTION 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"ACT" shall mean the Federal Food Drug and Cosmetic Act, as amended.
"AFFILIATE" shall mean any individual, corporation or other entity
that, directly or indirectly, through stock ownership or otherwise, controls, is
controlled by, or is under common control with, the designated party, but only
for so long as the relationship exists.
"CONTRACTOR" shall mean the manufacturer that is AMG's principal
supplier of injection-molded lancet components used in the manufacture of M/C
Lancets.
"EFFECTIVE DATE" shall be the date first written above.
"FDA" shall mean the United States Food and Drug Administration, any of
its successor agencies or departments, or any other agency serving the same or
similar function.
"FORECAST" shall have the meaning set forth in Section 4(a) of this
Agreement.
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"LOSS" shall mean any and all losses, damages, costs and expenses of
any kind and nature whatsoever (including, without limitation, reasonable
attorneys' fees and disbursements) which may be sustained or suffered by either
party to this Agreement, arising out of or resulting from any claims, demands,
actions, suits, and judgments instituted by third parties against such party.
"M/C LANCETS" shall have the meaning set forth in the first "whereas"
clause of this Agreement.
"SPECIFICATIONS" shall mean the finished product and process and
manufacturing specifications and instructions, quality assurance, sterilization
and other applicable procedures, and product descriptions applicable to M/C
Lancets and/or the packaging thereof consistent with AMG's past practices and as
described on Schedule 7 hereto.
"STOCK PURCHASE AGREEMENT" shall mean that certain agreement, dated as
of February 18, 1998, by and among Selfcare, Inc., Selfcare Consumer Products,
Inc. (collectively with Selfcare, Inc., the "Purchasers"), Can-Am and the four
stockholders of Can-Am, which, among other matters, provides for the purchase by
the Purchasers of all of the issued and outstanding capital stock, convertible
securities and option securities from the stockholders of Can-Am.
"TERM" shall mean the period set forth in Section 3.
SECTION 2. Supply.
(a) Subject to the terms and conditions of this Agreement, AMG
shall sell and deliver to Can-Am and Can-Am shall purchase and accept from AMG
100% of Can-Am's M/C Lancets requirements.
(b) Notwithstanding Section 2(a), Can-Am may enter into
short-term ("spot") arrangements to acquire M/C Lancets from third parties to
meet its M/C Lancets requirements if (i) AMG is prevented from supplying M/C
Lancets by circumstances qualifying as Force Majeure under Section 13, or is
otherwise unable to deliver M/C Lancets pursuant to this Agreement in sufficient
quantities, (ii) AMG's M/C Lancets fail to meet the Specifications, or (iii) AMG
is in material default under any of its obligations under this Agreement.
Can-Am's rights under the preceding sentence are in addition to any remedies it
shall be entitled to under this Agreement.
(c) No provision of this Agreement shall restrict Can-Am from
manufacturing, purchasing or distributing other products which may be
competitive with M/C Lancets.
(d) AMG shall maintain facilities adequate to manufacture M/C
Lancets in quantities sufficient to meet the Forecasts and conform to the
Specifications. In supplying M/C Lancets, AMG shall be responsible for obtaining
all raw materials, shippers, packers, and packaging materials and for providing
all labor and other overhead necessary to manufacture M/C Lancets.
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(e) AMG shall not sell M/C Lancets to any customer other than
Can-Am, except that (i) AMG may continue to supply M/C Lancets to the customers
listed in Schedule 2(e), but only in the territories set forth opposite the
names of such customers in Schedule 2(e), and in each case on substantially the
same terms and conditions as in effect on the Effective Date; provided, that no
sales to customers other than Can-Am shall adversely affect AMG's performance
hereunder.
SECTION 3. Term. Subject to earlier termination as provided in Section
14, the term of this Agreement shall commence on the Effective Date and shall
continue until Can-Am is no longer in the business of selling M/C Lancets.
SECTION 4. Forecasts and Orders.
(a) Every ninety (90) days during the Term, Can-Am shall
provide AMG with (i) a good faith forecast (a "Forecast") of its anticipated
purchases of M/C Lancets during each of the four (4) three-month periods
("Quarters") following the date of the forecast (the "Forecast Date"), and (ii)
a binding purchase order ("Purchase Order") for M/C Lancets to be shipped from
time to time in accordance with the provisions of this Agreement. Can-Am agrees
to purchase from AMG (A) no less than 100% of the M/C Lancets that it forecasted
that it would purchase during the first two Quarters of its most recent
Forecast, and (B) no less than 85% of the M/C Lancets that it forecasted that it
would purchase during the third and fourth Quarters of its most recent Forecast.
(b) Can-Am shall authorize shipment of M/C Lancets by issuing
a Purchase Order to AMG, and AMG shall cause M/C Lancets to be shipped in
accordance with the Purchase Order. Each Purchase Order shall be in the form of
Exhibit A hereto. Each Purchase Order shall identify (i) the quantity and other
characteristics (including pack size, packaging information, gauge, SKU and
color) of M/C Lancets to be delivered and (ii) the required delivery date, which
date shall not be less than ten (10) days after the date of the relevant
Purchase Order.
(c) AMG shall promptly acknowledge each Purchase Order by
signing and returning to Can-Am the acknowledgment copy of each Purchase Order
promptly after its receipt. AMG shall be deemed to have accepted a Purchase
Order unless it delivers to Can-Am a written notice objecting to such Purchase
Order within five (5) business days after receipt of such Purchase Order.
(d) In the event of any conflict between the terms and
conditions of this Agreement and the terms and conditions of Can-Am's Purchase
Order or any other document, the terms and conditions of this Agreement shall be
controlling.
(e) The parties hereto may agree to modify the procedures for
ordering and delivering M/C Lancets hereunder.
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SECTION 5. Price and Payment.
(a) Subject to the terms and conditions of this Agreement,
Can-Am shall purchase and AMG shall sell all M/C Lancets for which a Purchase
Order has been submitted and accepted by AMG. Can-Am shall pay AMG the prices
listed in the Price List attached hereto as Schedule 5. AMG represents and
warrants that the prices listed in the Price List are no greater than average
prices, except as adjusted for labor costs, packaging costs, and sterilization
costs, that AMG charged Can-Am for M/C Lancets during Can-Am's fiscal year ended
May 31, 1997.
(b) All dues, duties, fees, taxes, charges, or other expenses
on or pertaining to the import into the United States of M/C Lancets, shall be
borne by Can-Am. AMG shall be responsible for obtaining all export/import
permits or similar approvals required for the delivery of M/C Lancets.
(c) Except as provided in Section 5(d) below, the costs
associated with any and all changes in packaging and/or labeling components of
M/C Lancets requested in writing by Can-Am shall be borne exclusively by (and in
the case of decreases in costs, inure to the benefit of) Can-Am.
(d) The prices set forth on the Price List shall remain
unchanged until the first anniversary of this Agreement. Within ten (10) days of
each anniversary of the date of this Agreement, Can-Am and AMG shall meet to
review the cost of the raw materials of the M/C Lancets, the Japanese Yen/U.S.
dollar exchange rate and the costs of boxing, labor and sterilization, and,
subject to the last sentence of this Section 5(d), AMG may make changes to the
Price List in accordance with Schedule 5. AMG may change the prices in the Price
List in accordance with Schedule 5; provided, that AMG shall not sell M/C
Lancets to Can-Am on terms and conditions or for a price less favorable to
Can-Am than the most favorable terms and conditions and prices offered to AMG's
other customers for comparable products.
(e) Subject to Can-Am's compliance with its obligations
specified in the last sentence of Section 4(a), Can-Am shall have the right to
obtain all or any portion of its requirements for M/C Lancets from sources other
than AMG if (i) the profit margin that Can-Am generally earns on resale of the
M/C Lancets it purchases from AMG, determined in accordance with generally
accepted accounting principles consistently applied, falls below Can-Am's
historic margins due to market conditions and competitive factors applicable to
the M/C Lancet market generally, (ii) Can-Am and AMG have negotiated in good
faith for an adjustment to the prices in the Price List, which adjustment would
cause the profit margins each party earns (Can-Am on resale of the M/C Lancets
to its customers and AMG on resale of the M/C Lancets to Can-Am) to decrease
proportionally from their respective historical profit margins, (iii) Can-Am and
AMG have been unable to agree on such a price adjustment, and (iv) Can-Am is
able to obtain M/C Lancets of comparable quality at lower cost or on better
terms and conditions (taking into account factors such as ability to fulfill
orders on short notice) from sources other than AMG, provided, however, that if
pursuant to this Section 5(e), Can-Am begins to obtain M/C Lancets from another
source, Can-Am shall continue to purchase M/C Lancets from AMG for the next four
Quarters, in accordance with Section 4(a). If, in accordance with the forgoing,
Can-Am does choose another source to supply its requirement of M/C Lancets and
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that supplier later alters the prices, terms and/or conditions of the supply
arrangement, Can-Am shall provide AMG another opportunity to meet the new
prices, terms and/or conditions, and if AMG does, Can-Am will again use AMG as
its source of supply for its requirements of M/C Lancets, in accordance with the
terms of this Agreement.
(f) Except as provided in Section 14(a)(ii) hereof, AMG shall
invoice Can-Am for each shipment of M/C Lancets promptly upon the pick-up of the
M/C Lancets by Can-Am's transportation company or agent. Payment for M/C Lancets
shall be made by Can-Am to AMG in United States dollars within sixty (60) days
from the date of receipt of AMG's invoice. In the event Can-Am fails to pay the
amount owed as reflected on an invoice within 120 days of receipt of such
invoice, AMG may discontinue further shipment of M/C Lancets unless Can-Am (i)
begins paying interest on the overdue amount at the rate of 12% per annum and
(ii) either (A) agrees to pay cash on delivery for M/C Lancets, (B) posts a
letter of credit, or (C) provides AMG with other reasonable assurances that
payment for such M/C Lancets shall be made (the reasonableness of such
assurances to be determined by AMG in its sole reasonable discretion).
SECTION 6. Delivery.
(a) All M/C Lancets shall be delivered F.O.B. Montreal to
Can-Am's transportation company or agent on the date specified in the applicable
Purchase Order.
(b) AMG shall have good and marketable title to all M/C
Lancets to be sold by AMG to Can-Am and all such M/C Lancets delivered to
Can-Am's transportation company or agent shall be free and clear of all liens
and adverse claims of every kind. AMG's tender of any shipment of M/C Lancets
shall be deemed a representation and warranty by AMG to Can-Am that such
shipment complies with the requirements of the preceding sentence.
(c) Title to, possession and risk of loss of M/C Lancets shall
pass to Can-Am, and delivery of such M/C Lancets shall be deemed completed, when
and to the extent that M/C Lancets are picked up by Can-Am's transportation
company or agent. Any loss of or damage to such M/C Lancets occurring before
title and risk of loss have passed from AMG to Can-Am shall be solely for the
account of AMG.
(d) Upon delivery of M/C Lancets, Can-Am shall promptly
inspect all M/C Lancets to determine whether the M/C Lancets conform to the
Specifications and are properly branded within the meaning of the Act. Can-Am
shall have the right to reject any M/C Lancets which are not as warranted in
Section 9(a) for a period of thirty (30) days following the date of delivery. In
such event, AMG shall be responsible for the shipping costs associated with
returning the non-conforming M/C Lancets to AMG's loading dock.
(e) Subject to the terms and conditions of this Agreement, AMG
shall use commercially reasonable efforts to deliver M/C Lancets on the
scheduled delivery date(s). If the amount of M/C Lancets ordered to be delivered
in a three (3) month period exceeds the amount
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Forecasted for such period, AMG shall use its commercially reasonable efforts to
deliver the Forecasted amounts on the scheduled delivery dates and shall use
commercially reasonable efforts to deliver any additional amounts in accordance
with the terms of the Purchase Orders.
SECTION 7. Specifications.
(a) Subject to the terms and conditions of this Agreement, AMG
shall manufacture and package M/C Lancets(s) in conformance with the
Specifications.
(b) Can-Am and AMG agree to meet once every six (6) months to
review the Specifications. Subject to the approval of Can-Am, which will not be
unreasonably withheld, AMG may make minor cosmetic changes to the
Specifications; provided, that after such changes to the Specifications, the M/C
Lancets would remain monolet compatible. Can-Am may request minor changes to the
Specifications; provided, that (i) after such changes to the Specifications, the
M/C Lancets would remain monolet compatible, (ii) such changes are acceptable to
the Contractor, and (iii) AMG shall, at its sole discretion, not be required to
deliver M/C Lancets that meet the modified Specifications for a reasonable
period of time after the requested change; and provided further, that the
parties shall agree on a reasonable adjustment to the Price List to reflect any
additional costs incurred by AMG to conform to the modified Specifications. The
parties shall modify Schedule 5 and Schedule 7 after each change to the
Specifications.
(c) Notwithstanding anything to the contrary in Section 7(b)
above, if, after a material change to the Specifications, AMG is not able to
obtain from the Contractor M/C Lancets which meet the modified Specifications
after making diligent best efforts to obtain same, on substantially similar
terms as it had prior to the change in Specifications, AMG shall, at its option,
be able to terminate this Agreement in accordance with Section 14(a)(iv) hereof.
SECTION 8. Regulatory Matters and Documentation.
(a) During the term of this Agreement, AMG shall at all times
comply with, and shall use reasonable efforts to ensure that Contractor is in
compliance with, all applicable local, state, federal, laws and regulations,
including the Act, applicable current "Good Manufacturing Practices" and any
other relevant regulations promulgated by the FDA, as well as any other
applicable requirements set forth in the Specifications.
(b) AMG shall keep, and shall use reasonable efforts to ensure
that Contractor keeps, complete and accurate records of all operations in the
manufacture and supply of injection-molded lancet components.
(c) Upon reasonable prior notice, AMG shall use its reasonable
efforts to secure permission for Can-Am, its designated agents and
representatives, or representatives of any United States regulatory agency to
inspect, during normal business hours, any facility used by Contractor in the
manufacture of injection-molded lancet components. Such inspection may include,
without
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limitation, a review of Contractor's manufacturing procedures, quality assurance
procedures, and any records relating to the manufacture and supply of
injection-molded lancet components. AMG shall promptly notify Can-Am in the
event of any such inspection by representatives of any United States regulatory
agency and shall provide copies to Can-Am of any documents relating to such
inspection, including, without limitation, the respective agency's inspection
report and Contractor's response thereto.
SECTION 9. Warranty.
(a) AMG warrants that, at the time of delivery to Can-Am, M/C
Lancets shall (i) conform to the Specifications, and (ii) not be misbranded
within the meaning of the Act.
(b) (i) If AMG disputes any finding by Can-Am that any M/C
Lancets fail to conform to the applicable Specifications, or are misbranded, the
parties hereto agree to make a good faith effort to resolve such dispute. If,
however, after 10 days, such dispute is not resolved, the parties will submit
the matter to arbitration, as provided in Section 15(k) of this Agreement. All
fees and disbursements incurred in connection with any independent determination
shall be borne by the party which determined incorrectly that M/C Lancets do or
do not conform to the Specifications, or are or are not misbranded.
(ii) AMG shall promptly replace any M/C Lancets not
conforming to the applicable Specifications, or otherwise misbranded (unless
such non-conformance is due to any act or omission by Can-Am or its agents or
subcontractors).
(iii) AMG, at its option, may instruct Can-Am to (A)
return to AMG by a carrier and at a cost approved by AMG, or (B) destroy in an
environmentally acceptable manner at AMG's expense, any Lancet order, or portion
thereof, which does not conform to the applicable Specifications or is
misbranded.
(c) THE WARRANTIES CONTAINED IN THIS SECTION 9 SHALL SUPERSEDE
ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THOSE SET FORTH IN ANY
PURCHASE ORDER OR INVOICE RECEIVED PURSUANT TO THIS AGREEMENT.
SECTION 10. Indemnification.
(a) (i) AMG shall, at its expense, defend any action or
claim instituted against Can-Am or its Affiliates and indemnify and hold
harmless Can-Am and its Affiliates, together with their respective officers,
directors, employees, agents, and insurers for any Loss (A) arising out of AMG's
breach of (1) the warranties set forth in this Agreement or (2) AMG's covenants
under this Agreement or (B) any product liability claims incurred by Can-Am and
related to the M/C Lancets.
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(ii) Can-Am shall, at its expense, defend any action or
claim instituted against AMG, Contractor or their Affiliates and indemnify and
hold harmless AMG, Contractor and their Affiliates, together with their
respective officers, directors, employees, agents, and insurers for any Loss
other than those described in Section 10(a)(i) hereof, including, without
limitation, any Loss arising out of Can-Am's breach of the (1) warranties set
forth in this Agreement or (2) Can-Am's covenants under this Agreement.
(b) The parties hereto agree that a party seeking
indemnification hereunder shall implement the procedure set forth in Section 8
of the Stock Purchase Agreement.
SECTION 11. Recalls.
(a) If either party determines that it may be necessary to
recall any M/C Lancet, it shall immediately notify the other party. The decision
to implement any such recall of M/C Lancets shall be made solely by AMG, and AMG
will indemnify Can-Am against any Loss it incurs in connection with such
recalls.
(b) Prior to commencing any recall, the parties shall review
with one another the manner in which the recall is to be carried out and any
instructions or suggestions of the applicable regulatory authorities.
(c) The costs associated with any recall shall be borne by the
party whose actions necessitated the recall.
SECTION 12. Intellectual Property.
(a) Can-Am may advertise, promote, market and/or sell M/C
Lancets under any trademarks, copyrights, tradenames, or logos, whether
registered or unregistered; provided, that Can-Am shall not utilize the names of
AMG, its Affiliates or Contractor in connection with the advertisement,
promotion, marketing and/or sale of M/C Lancets.
(b) From time to time, Can-Am may submit to AMG new UPC codes
for use on the packaging of the M/C Lancets.
SECTION 13. Force Majeure. Neither party shall be liable for failure to
perform any of its obligations under this Agreement during any period in which,
and to the extent which, such performance is delayed by fire, flood or other
natural disaster, embargo, riot, changes in applicable laws, rules or
regulations, whether foreign or domestic, the intervention of any governmental
authority, the failure of Contractor to supply, or the unavailability of,
injection-molded lancet components, or any other reasons or conditions beyond
the control of the parties. AMG and Can-Am shall promptly notify the other of
the occurrence of any such conditions.
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SECTION 14. Termination.
(a) (i) In the event that either party materially breaches
or defaults on any of its obligations, representations, warranties, or covenants
under this Agreement, the other party may give notice to the defaulting party
setting forth in reasonable detail the nature of such breach or default;
provided, however, that AMG's failure to deliver M/C Lancets based on the
inability of AMG to obtain injection-molded lancet components from the
Contractor, despite its diligent best efforts, on substantially similar terms
and conditions as it currently obtains such components, or in quantities
sufficient to fulfill its obligations under this Agreement, shall not be
considered a breach or default by AMG under this Agreement. If the defaulting
party fails to cure such breach or default within sixty (60) days from the date
of such notice, this Agreement shall be subject to immediate termination by the
terminating party upon additional written notice to the defaulting party.
(ii) If Can-Am applies for or consents to the
appointment of a receiver, trustee or liquidator for all or a substantial part
of its assets; admits in writing its inability to pay its debts generally as
they mature; makes a general assignment for the benefit of creditors; is
adjudicated a bankrupt; submits a petition or an answer seeking an arrangement
with creditors; takes advantage of any insolvency law except as a creditor;
submits an answer admitting the material allegations of a petition in bankruptcy
or insolvency proceeding; has an order, judgment or decree entered by any court
of competent jurisdiction approving a petition seeking reorganization of Can-Am
or appointing a receiver, trustee or liquidator for Can-Am, or for all or a
substantial part of any of its assets and such order, judgment or decree shall
continue unstayed and in effect for a period of ninety (90) consecutive days;
files a voluntary petition of bankruptcy or fails to remove an involuntary
petition in bankruptcy filed against it within ninety (90) days of the filing
thereof (each of which shall hereinafter be referred to as an "Insolvency
Instance"), AMG shall not have further obligations to deliver M/C Lancets to
Can-Am unless Can-Am (A) agrees to pay cash on delivery for M/C Lancets, (B)
posts a letter of credit, or (C) provides AMG with other reasonable assurances
that payment for such M/C Lancets shall be made (the reasonableness of such
assurances to be determined by AMG in its sole discretion).
(iii) AMG may terminate this Agreement upon one hundred
and eighty (180) days prior written notice to Can-Am if, acting in good faith,
and despite using its diligent best efforts, it is not able to obtain
injection-molded lancet components from the Contractor in quantities sufficient
to fulfill its obligations under this Agreement. In connection with a
termination pursuant to this Section 14(a)(iii), AMG shall not have any
liability, under this Agreement or under applicable laws, arising out of any
such failure to deliver M/C Lancets or termination of this Agreement under such
circumstances.
(iv) In the event that a condition of force majeure, as
defined in Section 13, prevents either party from performing any of its material
obligations for more than sixty (60) days, then the party which is not prevented
from performing may immediately terminate this Agreement by giving written
notice to the other party.
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(b) Except as provided in Section 14(a)(iii), the termination
of this Agreement by either party pursuant to this Section 14 shall not affect
the rights of the terminating party under this Agreement or under applicable
laws.
SECTION 15. Miscellaneous.
(a) Entire Agreement. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supercedes all other prior or contemporaneous agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof. Any Purchase Order shall be solely for the purpose of specifying the
type and quantity of M/C Lancets so ordered and Can-Am's delivery requirements.
(b) Amendments and Supplements. This Agreement may not be
amended, supplemented or discharged, and no provision hereof may be modified or
waived, except by an instrument in writing signed by both parties.
(c) No Waiver. No provision hereof may be waived, except by an
instrument in writing signed by the party waiving compliance. The failure of any
party hereto to enforce at any time any of the provisions of this Agreement
shall in no way be construed to be a waiver of any such provision, nor in any
way to affect the validity of this Agreement or any part hereof or the right of
such party thereafter to enforce each and every such provision. No waiver of any
breach of or non-compliance with this Agreement shall be held to be a waiver of
any other or subsequent breach or non-compliance. The rights and remedies herein
provided are cumulative and are not exclusive of any rights or remedies that any
party may otherwise have at law or in equity.
(d) Binding Effect. This Agreement shall be binding upon and
shall inure to the exclusive benefit of the respective parties, their legal
representatives, successors, or permitted assigns. This Agreement is not
intended to, nor shall it create any right in any other party.
(e) Successors and Assigns. Neither this Agreement nor any
rights or obligations hereunder are assignable by either party without the prior
written consent of the other party; provided, that either party may assign this
Agreement and the rights and obligations hereunder to any third party who merges
or consolidates with such party or purchases or otherwise acquires all or
substantially all of such party's assets.
(f) Independent Contractors. Both parties agree to perform
under this Agreement solely as independent contractors and shall not hold
themselves out as employees or agents of the other.
(g) Notices. All notices, consents, approvals, directions and
instructions required or permitted under this Agreement shall be effective when
received and shall be given in writing and delivered either by hand or by
registered or certified mail, postage prepaid, or by telecopier, and addressed
as follows:
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If to AMG:
A.M.G. Medical, Inc.
0000 Xxxxxx
Xxxxxxxx, Xxxxxx, Xxxxxx
X0X 0X0
Attention: Xxxxxxxx Xxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Can-Am:
c/o Selfcare, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxxxx, Chairman and Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxxx, Xxxx & Xxxxx LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx, Xx., Esq.
Facsimile: (000) 000-0000
(h) Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the law (other than the law governing
conflict of law questions) of the state of New York, including the provisions of
the Uniform Commercial Code, except to the extent the laws of any other
jurisdiction are mandatorily applicable. Any provision hereof which may prove
invalid or unenforceable under any law shall not affect the validity or
enforceability of any other provision hereof.
(i) Construction of Agreement. A reference to a Section shall
mean a Section in this Agreement unless otherwise expressly stated. The titles
and headings herein are for reference purposes only and shall not in any manner
limit the construction of this Agreement which shall be
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considered as a whole. The words "include," "includes" and "including" when used
herein shall be deemed in each case to be followed by the words "without
limitation".
(j) No Conflict. Each of the parties does hereby represent and
warrant to the other that nothing herein conflicts with or shall cause a default
under any document, agreement, instrument or other writing to which said party
is a party or by which said party is bound.
(k) Arbitration. Any dispute arising under this Agreement
shall be resolved by compulsory and binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association and
judgment upon the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction.
(l) Survival. The provisions contained in Sections 10, 11, 12,
14 and 15 shall survive the termination for any reason of this Agreement.
(m) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Supply Agreement to be
duly executed as a sealed instrument as of the day and year first above written.
A.M.G. MEDICAL INC.
By:________________________
Name: Xxxxxxxx Xxxxx
Title: Vice President
CAN-AM CARE CORPORATION
By:_______________________
Name: Xxxxxx Xxxxxxx
Title: President
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