1.

RECITALS

1

2.

DEFINITIONS

1

3.

AUTHORIZATIONS FOR BOTTLER TO MARKET, PROMOTE, DISTRIBUTE AND SELL COVERED BEVERAGES AND RELATED PRODUCTS IN THE FIRST-LINE TERRITORY

10

4.

ALTERNATE ROUTES TO MARKET

12

5.

COMPANY AND BOTTLER RIGHTS AND OBLIGATIONS REGARDING THE TRADEMARKS

12

6.

PRE-EXISTING COMMITMENTS

13

7.

NEW BEVERAGE PRODUCTS

13

8.

MULTIPLE ROUTE TO MARKET BEVERAGES AND MULTIPLE ROUTE TO MARKET RELATED PRODUCTS

16

9.

REFORMULATION, DISCONTINUATION AND TRANSFER OF COVERED BEVERAGES AND RELATED PRODUCTS

16

10.

TERRITORIAL LIMITATIONS AND TRANSSHIPPING

19

11.

ADDITIONAL TERRITORIES

21

12.

EFFECT OF NEW OR AMENDED AUTHORIZATION AGREEMENTS WITH OTHER EXPANDING PARTICIPATING BOTTLERS

22

13.

OBLIGATIONS OF BOTTLER AS TO OTHER BEVERAGE PRODUCTS AND OTHER BUSINESS ACTIVITIES

22

14.

OBLIGATIONS OF BOTTLER RELATIVE TO MARKETING, PROMOTION, DISTRIBUTION, SALES, SYSTEM GOVERNANCE, PURCHASING, MANAGEMENT, REPORTING AND PLANNING ACTIVITIES

25

15.

PRODUCT QUALITY AND STORAGE, HANDLING AND RECALL OF THE COVERED BEVERAGES AND RELATED PRODUCTS

29

16.

PRICING AND OTHER CONDITIONS OF PURCHASE AND SALE

30

17.

OWNERSHIP AND CONTROL OF BOTTLER

31

18.

TERM OF AGREEMENT

33

19.

COMMERCIAL IMPRACTICABILITY

33

20.

FORCE MAJEURE

34

21.

TERMINATION FOR DEFINED EVENTS

35

22.

DEFICIENCY TERMINATION

36

23.

BOTTLER RIGHT TO CURE

37

24.

BOTTLER’S RIGHTS AND OBLIGATIONS WITH RESPECT TO SALE OF ITS BUSINESS

38

25.

COMPENSATION TO BOTTLER ON TERMINATION FOR COMMERCIAL IMPRACTICABILITY UNDER SECTION 19.2.2, FORCE MAJEURE UNDER SECTION 20.2.2.2, DEFINED EVENTS UNDER SECTION 21 OR DEFICIENCY TERMINATION UNDER SECTION 22

44

26.

VALUATION

45

27.

POST-EXPIRATION AND POST-TERMINATION OBLIGATIONS

46

28.

COMPANY’S RIGHT OF ASSIGNMENT

47

29.

LITIGATION

47

30.

INDEMNIFICATION

48

31.

BOTTLER’S INSURANCE

48

32.

LIMITATION ON BOTTLER REPRESENTATIONS OR DISCLOSURES REGARDING COVERED BEVERAGES OR RELATED PRODUCTS

49

33.

INCIDENT MANAGEMENT

49

34.

SEVERABILITY

49

35.

AMENDMENT AND RESTATEMENT OF CERTAIN PRIOR CONTRACTS, MERGER, AND REQUIREMENTS FOR MODIFICATION

49

36.

NO WAIVER

50

37.

NATURE OF AGREEMENT AND RELATIONSHIP OF THE PARTIES

50

38.

HEADINGS AND OTHER MATTERS

51

39.

EXECUTION IN MULTIPLE COUNTERPARTS

51

40.

NOTICE AND ACKNOWLEDGEMENT

51

41.

CHOICE OF LAW AND VENUE

53

42.

CONFIDENTIALITY

54

43.

ACTIVE AND COMPLETE ARMS LENGTH NEGOTIATIONS

56

44.

RESERVATION OF RIGHTS

56

Exhibit

Title

Exhibit References by Section

A

Covered Beverages and Multiple Route to Market Beverages

1.1

1.5

2.13

2.28

2.30

7.1.1

7.1.3.5

7.1.3.6

7.1.3.8

9.2.2

9.6.2

B

Trademarks

1.2

2.44

7.1.1

7.1.2

7.1.3.5

7.1.3.8

C

First-Line Territory

1.3

2.20

11.1

D

Preexisting Contracts

1.4

35.1.1

E

Finished Goods Supply Agreement

2.18

F

Related Products and Multiple Route to Market Related Products

1.5

2.29

2.30

2.37

7.1.2

7.1.3.5

7.1.3.7

7.1.3.8

9.2.2

9.6.2

Schedule

Title

Schedule References by Section

2.17.2

Participating Bottlers

2.17.2

2.31

Permitted Ancillary Business

2.31

13.1.4

13.4.1

2.32

Permitted Beverage Products

2.32

13.1.4

2.33

Permitted Lines of Business

2.33

13.4.1

2.36

Related Agreements

2.36

3.4.2

Existing Alternate Route to Market Agreements

3.4.2

5.5

Approved Names

5.5

6

Covered Beverages or Related Products –

Pre-Existing Contractual Commitments

6.1.1

14.2

Measurement of Volume Per Capita Performance

14.2.3

24.1

Included / Excluded Business

24.1.1

24.1.2

24.1.3

24.4.1

Terms and Conditions of Sale

24.4.2.2

25.2

24.4.2

Amendments to Agreement

24.4.2

24.4.3

26

Guidance to Valuation Experts

26.6

31

Insurance Requirements

31

35.1.4

Agreements Not Affected by this Agreement

21.1.7

35.1.4

1.

RECITALS

1.1.

Company manufactures and sells, or authorizes others to manufacture and sell, certain shelf-stable, ready-to-drink beverages identified on Exhibit A.

1.2.

Company owns or licenses the Trademarks identified on Exhibit B, which identify and distinguish Company’s products.

1.3.

The parties desire to enter into an arrangement under which Bottler will market, promote, distribute and sell certain of Company’s beverage products in the First-Line Territory identified on Exhibit C.

1.4.

Company and Bottler are parties to certain pre-existing contracts identified on Exhibit D under which Company has previously authorized Bottler to manufacture and package in certain authorized containers, and market, promote, distribute and sell, various Covered Beverages and Related Products.  Except as contemplated in Section 35.1.4 hereof, all such pre-existing contracts are hereby amended, restated and superseded in their entirety as of the Effective Date by (i) this Agreement, and (ii) to the extent applicable, any agreements entered into by Company and Bottler on or after October 30, 2015 that authorize Bottler to manufacture and package some or all of the Covered Beverages and/or Related Products.

1.5.

[Reserved.]

1.6.

Although Bottler is not authorized under this Agreement to manufacture or package Company’s beverage products, Bottler will continue to be identified as “Bottler” in this Agreement and otherwise, because the parties believe that use of the term “Bottler” is important to historical and continuing commercial relationships between Bottler and customers, consumers, and communities.

2.

DEFINITIONS

2.1.

“Affiliate" means, as to any Person, another Person that Controls, is Controlled by, or is under common Control with the first Person.

2.2.

“Agreement” means this Comprehensive Beverage Agreement by and between Bottler and Company, as hereafter amended by the parties in accordance with the provisions hereof.

2.3.

“Beneficial Owner” means a Person having Beneficial Ownership of any securities.

2.4.

“Beneficial Ownership” of securities means possession of (a) voting power, which includes the power to vote, or to direct the voting of, securities, or (b) investment power, which

includes the power to Dispose of, or to direct the Disposition of, securities. Beneficial Ownership includes any voting power or investment power that any person has or shares, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise.  The following Persons will not be deemed to have acquired Beneficial Ownership of securities under the circumstances described:

2.4.1.

a Person engaged in business as an underwriter of securities who acquires securities through his participation in good faith in a firm commitment underwriting registered under the Securities Act of 1933 will not be deemed to be the Beneficial Owner of such securities until such time as the underwriter completes his participation in the underwriting and will not be deemed to be the Beneficial Owner of the securities acquired by other members of any underwriting syndicate or selected dealers in connection with such underwriting solely by reason of customary  underwriting or selected dealer arrangements;

2.4.2.

a member of a national securities exchange will not be deemed to be a Beneficial Owner of securities held directly or indirectly by it on behalf of another person solely because such member is the record holder of such securities and, pursuant to the rules of such exchange, may direct the vote of such securities, without instruction, on other than contested matters or matters that may affect substantially the rights or privileges of the holders of the securities to be voted, but is otherwise precluded by the rules of such exchange from voting without instruction;

2.4.3.

the holder of a proxy solicited by the Board of Directors of Bottler for the voting of securities of such Bottler at any annual or special meeting and any adjournment or adjournments thereof of the stockholders of Bottler will not be deemed to be a Beneficial Owner of the securities that are the subject of the proxy solely for such reason; and

2.4.4.

a Person who in the ordinary course of his business is a pledgee of securities under a written pledge agreement will not be a Beneficial Owner until the pledgee has taken all formal steps required to declare a default and determines that the power to vote or to direct the vote or to Dispose or to direct the Disposition of such pledged securities will be exercised.

2.5.

“Beverage” means a non-alcoholic, shelf-stable beverage in pre-packaged, ready-to-drink form in bottles, cans or other factory-sealed containers.  “Beverage” does not include any Beverage Component.

2.6.

“Beverage Component” means a beverage syrup, beverage concentrate, beverage base, beverage flavor, beverage sweetener, beverage mix, beverage powder, grounds (such as for coffee), herbs (such as for tea), liquid flavor enhancer, liquid water enhancer, or other beverage component that is not ready to drink but is intended to be mixed with other ingredients before being consumed.

2.7.

“Business Day” means Monday through Friday, except the legal public holidays specified in 5 U.S.C. 6103 or any other day declared to be a holiday by federal statute or executive order.  

2.8.

“Change of Control” means a Disposition that results in the existing Beneficial Owners of the securities of Bottler as of the Effective Date (together with their Permitted Transferees and Permitted Transferees of Permitted Transferees at any tier) ceasing to have, collectively, Control of Bottler.

2.9.

“Company Authorized Supplier” means (a) any Regional Producing Bottler and (b) any other Person expressly authorized by Company to supply Expanding Participating Bottlers or Participating Bottlers with Covered Beverages and Related Products.

2.10.

“Company Owned Distributor” and “Company Owned Manufacturer”:

2.10.1.

“Company Owned Distributor” means any Affiliate or operating unit of Company that markets, promotes, distributes, and sells any of the Covered Beverages or Related Products through Direct Store Delivery in a geographic territory in the United States.

2.10.2.

“Company Owned Manufacturer” means any Affiliate or operating unit of Company located in the United States that manufactures any of the Covered Beverages for distribution or sale within the United States.

2.11.

“Consumer Beverage Component” means a Beverage Component intended for sale to consumers directly or through a retail outlet as a shelf-stable, factory-sealed product to be mixed by consumers with other ingredients, or dispensed from equipment owned by or leased to consumers, outside the premises of the retail outlet, before being consumed. Consumer Beverage Component will not include any Beverage Component intended to be used to produce a beverage dispensed from equipment on the premises of any food service customers or other chain or fountain accounts.

2.12.

“Control” means the possession, directly or indirectly, of more than 50% of the outstanding voting power of a Person.

2.13.

“Covered Beverage” means a Beverage identified on Exhibit A, and all Line Extensions, SKUs and packages thereof.

2.14.

“Direct Store Delivery” means the distribution method whereby product is delivered by suppliers directly to retail outlet shelves for selection by consumers and does not arrive at the retail outlet via a retailer’s own warehouse or warehouses operated by other wholesalers or by agents of the retailer.

2.15.

“Disposition” means any sale, merger, issuance of securities, exchange, transfer, power of attorney, proxy, redemption or any other contract, arrangement, understanding, or transaction in which, or as a result of which, any Person  acquires, or obtains any contract, option, conversion privilege or other right to acquire Beneficial Ownership of any securities.

2.16.

“Effective Date” means March 31, 2017.

2.17.

“Expanding Participating Bottler” and “Participating Bottler”:

2.17.1.

“Expanding Participating Bottler” means any Person meeting the criteria of any of Sections 2.17.1.1, 2.17.1.2, 2.17.1.3, 2.17.1.4, or 2.17.1.5.

2.17.1.1.

Bottler;

2.17.1.2.

A Person (other than a Company Owned Distributor) that distributes Beverages under the Coca-Cola trademark and other Trademarks through Direct Store Delivery in a territory in the United States (which for purposes of this Agreement will mean the fifty (50) United States as of the Effective Date and the District of Columbia but will expressly exclude any U.S. territories) as of December 31, 2013 and, on or after December 31, 2013 (a) first acquired or acquires, through a grant or series of related grants from Company (or a Company Affiliate), the right to distribute all or substantially all of the Covered Beverages and Related Products in one (1) or more geographic territories within the United States, and (b) such acquisition(s) result in a net increase of thirty percent (30%) or more in the aggregate number of physical cases of Covered Beverages and Related Products sold in all of such Person’s territories within the United States, determined based on the twelve (12) month period immediately preceding the consummation of such acquisitions.  Physical cases resulting from termination, surrender or exchange of territorial rights will be subtracted so as to determine the net increase;

2.17.1.3.

A Person (other than a Company Owned Distributor) that does not distribute Beverages under the Coca-Cola trademark and other Trademarks through Direct Store Delivery in a territory in the United States as of December 31, 2013, and, on or after December 31, 2013, first acquired or acquires through a grant or series of related grants from Company (or a Company Affiliate) the right to distribute all or substantially all of the Covered Beverages and Related Products in one (1) or more geographic territories within the United States;

2.17.1.4.

A Person (other than a Company Owned Distributor) that acquires through a transaction or series of related transactions from an Expanding Participating Bottler the right to distribute all or substantially all of the Covered Beverages and Related Products in one (1) or more geographic territories within the United States; or

2.17.1.5.

A Participating Bottler that (a) acquires through a transaction or series of related transactions from another Participating Bottler the right to distribute all or substantially all of the Covered Beverages and Related Products in one or more geographic territories within the United States, and (b) such acquisition(s) result in a net increase of thirty percent (30%) or more in the aggregate number of physical cases of Covered Beverages and Related Products sold in all of the acquiring Participating

Bottler’s territories within United States, determined based on the twelve (12) month period immediately preceding the consummation of such acquisitions.  Physical cases resulting from termination, surrender or exchange of territorial rights will be subtracted so as to determine the net increase.

2.17.2.

“Participating Bottler” means a Person who acquires through a grant or series of related grants from Company (or a Company Affiliate) the right to distribute all or substantially all of the Covered Beverages and Related Products in one (1) or more geographic territories within the United States in accordance with a Participating Bottler Comprehensive Beverage Agreement.  A list of Participating Bottlers as of the Effective Date is set forth on Schedule 2.17.2 to this Agreement, which Schedule may be updated from time to time by Company by providing Notice to Bottler to accurately reflect all Participating Bottlers as of the date of any such update.

2.18.

“Finished Goods Supply Agreement” means the Finished Goods Supply Agreement between Bottler and any Regional Producing Bottler, in the form attached as Exhibit E.

2.19.

“Finished Product” means Covered Beverages and Related Products in bottles, cans or other factory-sealed containers supplied to Bottler pursuant to a Finished Goods Supply Agreement for distribution and sale by Bottler in the First-Line Territory in accordance with the terms of this Agreement.

2.20.

“First-Line Territory” means the territory in which Bottler is authorized by Company under Section 3.1 to market, promote, distribute, and sell the Covered Beverages and Related Products under this Agreement, as set forth on Exhibit C.

2.21.

“Full Line Operator” means a Person that provides vending or food service management services to business, industry, educational, healthcare and public locations and sells a wide range of products, which can include candy, cookies, chips, fresh fruit, milk, cold food, coffee and other hot drinks, sparkling beverages, and often frozen products like ice cream.

2.22.

“Governance Board” means The Coca-Cola System Leadership Governance Board, the governing body for the Coca-Cola system consisting of representatives of Company and selected U.S. bottlers.  The Governance Board (as currently contemplated by Company and the Expanding Participating Bottlers) is described in the Coca-Cola System Governance Letter Agreement between the parties with the effective date of March 31, 2017, as it may be amended from time to time by mutual agreement of the parties.

2.23.

“Governmental Authority” means any government or subdivision thereof, whether foreign or domestic, national, state, county, municipal or regional, any agency or instrumentality of any such government or subdivision thereof, any other governmental entity, or a court.

2.24.

“Incidence Agreement” means the Expanding Participating Bottler Revenue Incidence Agreement between Company and Bottler, as may be amended, modified and restated from time to time.

2.25.

“Incubation Beverage” means (a) a Beverage existing as of the Effective Date and distinguished by a trademark owned by Company or an Affiliate or by a trademark licensed to

Company or an Affiliate and sublicensed to Bottler that has not achieved sales volume nationally of at least twelve (12) million physical cases (the “Volume Threshold”) and annual sales revenue of at least $100 million USD in the immediately preceding 12 month period (the “Revenue Threshold”), as such Revenue Threshold is adjusted pursuant to Section 2.25.4; and (b) a Beverage introduced after the Effective Date distinguished by a trademark owned by Company or an Affiliate or by a trademark licensed to Company or an Affiliate and sublicensed to Bottler that would otherwise constitute a New Beverage Product but has not achieved the Volume Threshold and the Revenue Threshold.

2.25.1.

“Incubation Beverage” will not include a Line Extension of a then existing Covered Beverage or a new SKU or package for a then existing Covered Beverage.  Upon achieving both the Volume Threshold and the Revenue Threshold for the immediately preceding 12 month period, an Incubation Beverage will be deemed to be a New Beverage Product in accordance with Section 7.2, and, as a New Beverage Product, will be subject to Section 7.1.

2.25.2.

If the Incubation Beverage then becomes a Covered Beverage in accordance with Section 7.1, it will thereafter continue to be a Covered Beverage regardless of whether it continues to meet the Volume Threshold and Revenue Threshold, subject to Company’s right to discontinue Covered Beverages in accordance with Section 9.2.

2.25.3.

A Covered Beverage that is discontinued by Company cannot thereafter become an Incubation Beverage.

2.25.4.

The Revenue Threshold will increase annually, beginning with the first calendar year following the calendar year in which the Effective Date occurs.  The amount of the annual increase in the Revenue Threshold will be equal to the percentage increase in the Index as of December 31 of the calendar year just ended (the “Current Index”) compared to the Index as of the immediately preceding December 31 (the “Base Index”).  The Index will be the Consumer Price Index for All Urban Consumers (CPI-U) U.S. City Average, All Items, as published by the Bureau of Labor Statistics of the Department of Labor, as it may be amended from time to time, or such other comparable source upon which the Parties may agree.

2.25.5.

“Line Extension” means (a) with respect to a Covered Beverage, a flavor, calorie or other variation of the Covered Beverage, introduced by Company after the Effective Date, that is identified by the primary Trademark that also identifies the Covered Beverage or any modification of such Trademark (i.e., the addition of a prefix, suffix or other modifier used in conjunction with any such Trademark); (b) with respect to a Related Product, a flavor, calorie or other variation of the Related Product, introduced by Company after the Effective Date, that is identified by the Trademark that also identifies the Related Product (or any modification of such Trademark); and (c) with respect to a Permitted Beverage Product, a flavor, calorie or other variation of such Permitted Beverage Product introduced after the Effective Date that is identified by the primary trademark that also identifies such Permitted Beverage Product or any

modification of such trademark (i.e., the addition of a prefix, suffix or other modifier used in conjunction with any such trademark); provided that Company reasonably determines that such flavor, calorie or other variation is marketed in the same beverage category as the Permitted Beverage Product.

2.26.

“Mandated Beverage” means any Beverage (or SKU or package of such Beverage) identified by trademarks owned by Company or its Affiliates, or by trademarks licensed to Company or its Affiliates and sublicensed to Bottler, the availability in the First-Line Territory of which is required by plans, programs, guidelines, or instructions of the Governance Board or which is otherwise designated by the Governance Board as a “Mandated Beverage”.

2.27.

“Mandated Related Product” means any Consumer Beverage Component or other beverage product (or SKU or package of such Consumer Beverage Component or other beverage product) identified by trademarks owned by Company or its Affiliates, or by trademarks licensed to Company or its Affiliates and sublicensed to Bottler, the availability in the First-Line Territory of which is required by plans, programs, guidelines, or instructions of the Governance Board or which is otherwise designated by the Governance Board as a “Mandated Related Product.”

2.28.

“Multiple Route to Market Beverage” means (a) any Beverage distributed by Bottler on the Effective Date and identified on Exhibit A as a “Multiple Route to Market Beverage”, and (b) any New Beverage Product that is a Beverage that Company determines, in its sole discretion, after notice to and discussion with the Governance Board, will be distributed in the First-Line Territory through both Direct Store Delivery and other means, subject to the applicable provisions of Section 7.  Line Extensions, new SKUs and packages of a Covered Beverage that is not a Multiple Route To Market Beverage will not constitute Multiple Route to Market Beverages.  For each Multiple Route to Market Beverage, Exhibit A will specify the extent to which the Beverage will be distributed in the First-Line Territory via Direct Store Delivery.    

2.29.

“Multiple Route to Market Related Product” means (a) any Consumer Beverage Component (or other product that is not a Beverage) distributed by Bottler on the Effective Date and identified on Exhibit F as a “Multiple Route to Market Related Product”, and (b) any New Beverage Product that is a Consumer Beverage Component (or other product that is not a Beverage) that Company determines, in its sole discretion, after notice to and discussion with the Governance Board, will be distributed in the First-Line Territory through both Direct Store Delivery and other means, subject to the applicable provisions of Section 7.  Line Extensions, new SKUs and packages of a Related Product that is not a Multiple Route To Market Related Product will not constitute Multiple Route to Market Related Products. For each Multiple Route to Market Related Product, Exhibit F will specify the extent to which the product will be distributed in the First-Line Territory via Direct Store Delivery.  

2.30.

“New Beverage Product” means a Beverage or Consumer Beverage Component (or other product that is not a Beverage) that does not appear on Exhibit A or Exhibit F as of the Effective Date, that Company or an Affiliate of Company develops, acquires, creates, licenses, or otherwise obtains sufficient rights to market, promote, distribute and sell in the First-Line Territory, and that Company determines, in its sole discretion, after Notice to and discussion with the Governance Board, will be distributed in the First-Line Territory through Direct Store Delivery. “New Beverage Product” will not include an Incubation Beverage, Line Extension, or new SKU or package of any Covered Beverage or Related Product. Upon achieving both the

Volume Threshold and the Revenue Threshold, as defined in Section 2.25, an Incubation Beverage will be deemed to be a New Beverage Product in accordance with Section 7.2, and as a New Beverage Product will be subject to Section 7.1.

2.31.

“Permitted Ancillary Business” means a business operated by Bottler or an Affiliate of Bottler to which Company has provided its consent on Schedule 2.31 (subject to the conditions specified on Schedule 2.31), and is therefore permitted under this Agreement to produce, manufacture, prepare, package, distribute, sell, deal in, or otherwise use or handle, as the case may be, Beverages, Beverage Components or other beverage products that are not Covered Beverages, Related Products, or Permitted Beverage Products.  “Permitted Ancillary Business” will include any ancillary businesses to which Company may hereafter provide prior written consent, which consent will result in the automatic amendment of Schedule 2.31 to include such permitted ancillary business.  Company will not unreasonably withhold its consent to a proposed ancillary business that (a) is not directly and primarily involved in the manufacture, marketing, promotion, distribution or sale of Beverages, Beverage Components and other beverage products (e.g., sale, lease or servicing of equipment used in the distribution of beverages to third parties), or (b) provides office coffee service to offices or facilities.

2.32.

“Permitted Beverage Product” means a Beverage, Beverage Component, or other beverage product that is not a Covered Beverage or Related Product, to which Company has provided its consent on Schedule 2.32 (subject to the conditions specified on Schedule 2.32) and is therefore permitted under this Agreement. “Permitted Beverage Product” will include any beverage product to which Company hereafter provides prior written consent, which consent will result in the automatic amendment of Schedule 2.32 to include such permitted beverage product, and any Line Extension of a Permitted Beverage Product or new SKU or package of an existing Permitted Beverage Product.  

2.33.

“Permitted Line of Business” means a line of business operated by Bottler or an Affiliate of Bottler to which Company has provided its consent on Schedule 2.33 (subject to the conditions specified on Schedule 2.33), and is therefore permitted under this Agreement to use delivery vehicles, cases, cartons, coolers, vending machines or other equipment bearing Company’s Trademarks and/or to assign duties relating to such line of business to personnel or management whose primary duties relate to delivery or sales of Covered Beverages or Related Products.  “Permitted Line of Business” will include any line of business as to which Company hereafter provides prior written consent, which consent will not be unreasonably withheld by Company and will result in the automatic amendment of Schedule 2.33 to include such Permitted Line of Business.

2.34.

“Permitted Transferee” means, with respect to a Beneficial Owner of equity securities of Bottler:

2.34.1.

such Beneficial Owner’s past, present and future spouses (including former spouses), lineal descendants (including adopted children and stepchildren), parents, grandparents, siblings, and first-degree cousins (collectively, “Family Members”);

2.34.2.

such Beneficial Owner’s or Family Member’s estate, including the executor(s), administrator(s) or other personal representative(s) of such Beneficial Owner’s or Family Member’s estate in their fiduciary capacity(ies) (“Family Estate”);

2.34.3.

any trust primarily for the benefit of such Beneficial Owner and/or any Family Member(s), including the trustee(s) of such Family Trust in their fiduciary capacity(ies) (“Family Trust”), provided a trust shall still be a Family Trust even if there exists a remote contingent beneficial interest in favor of a non-Family Member in such Family Trust;

2.34.4.

any partnership, corporation or limited liability company that is wholly-owned by such Beneficial Owner, Family Member(s), Family Estate and/or Family Trust; and

2.34.5.

any other existing Beneficial Owner of equity securities of Bottler and such other Beneficial Owner’s respective “Permitted Transferees” determined under Section 2.34.1 through Section 2.34.4 above.

2.35.

“Person” means an individual, a corporation, a company, a voluntary association, a partnership, a joint venture, a limited liability company, a trust, an estate, an unincorporated organization, a Governmental Authority, or any other entity.

2.36.

“Regional Producing Bottler” means any Expanding Participating Bottler or Company Owned Manufacturer that is (directly or indirectly through its membership in another Person) a member of the Coca-Cola System National Product Supply Group.

2.37.

“Related Agreement” means any agreement identified on Schedule 2.36 between Company and any of Company’s Affiliates and Bottler and any of Bottler’s Affiliates relating to the marketing, promotion, distribution and sale of Covered Beverages and Related Products in the First-Line Territory.

2.38.

“Related Product” means a product listed on Exhibit F that does not fall within the definition of “Beverage,” and includes (i) any Consumer Beverage Component (or other product that is not a Beverage) that becomes a Related Product under Sections 2.28, 2.29, 7, 8 or 9 of this Agreement, (ii) all Line Extensions of the Related Products identified on Exhibit F, and (iii) all SKUs or packages for the Related Products identified on Exhibit F.

2.39.

“SKU” means a stock-keeping unit or other uniquely identifiable type of Beverage or other product configuration, distinguished by the use of a different primary or secondary packaging and/or different flavoring or other characteristics from other Beverage or product configurations, such that such configuration requires the use of a separate UPC code to distinguish it from other forms of Beverage or product configurations.

2.40.

[Reserved.]

2.41.

“Subterritory” means a geographic segment of the First-Line Territory, as described in Exhibit C

2.42.

“Term” means the Initial Term and any Additional Term(s).

2.43.

[Reserved.]

2.44.

“Trademarks” means the trademarks owned by or licensed to Company or its Affiliates and identified on Exhibit B.

2.45.

“U.S. Coca-Cola Bottler” means a Person (including a Company Owned Distributor) that distributes Beverages under the Coca-Cola trademark and other Trademarks through Direct Store Delivery in a territory in the United States of America.

3.

AUTHORIZATIONS FOR BOTTLER TO MARKET, PROMOTE, DISTRIBUTE AND SELL COVERED BEVERAGES AND RELATED PRODUCTS IN THE FIRST-LINE TERRITORY

3.1.

Company appoints Bottler as its sole and exclusive distributor of Covered Beverages and Related Products under the Trademarks for sale in and throughout the First-Line Territory, subject to the provisions of this Agreement.  In furtherance of such appointment, Company authorizes Bottler:

3.1.1.

To purchase Covered Beverages and Related Products from (i) Company, directly or through its Affiliates, (ii) a Regional Producing Bottler in accordance with the Finished Goods Supply Agreement; or (iii) any other Company Authorized Supplier in accordance with the terms of an applicable supply agreement, agency sales agreement or other similar arrangement between Bottler and such Company Authorized Supplier.

3.1.2.

To market, promote, distribute, and sell such Covered Beverages and Related Products under the Trademarks in and throughout the First-Line Territory;

3.1.3.

If Bottler is a party to a Regional Manufacturing Agreement with Company, to market, promote, distribute and sell in and throughout the First-Line Territory Covered Beverages and Related Products manufactured, produced and packaged by Bottler for its own account in accordance with such Regional Manufacturing Agreement; and

3.1.4.

If (a) Bottler is a party to an Expanding Participating Bottler Manufacturing Agreement or other manufacturing authorization with Company (in either case, a “Manufacturing Authorization”), and (b) such Manufacturing Authorization expressly authorizes Bottler to manufacture, produce and package Covered Beverages and Related Products for distribution in and throughout the First-Line Territory, to market, promote, distribute and sell in and throughout the First-Line Territory Covered Beverages and Related Products manufactured, produced and packaged by Bottler for its own account in accordance with such Manufacturing Authorization.

3.2.

[Reserved.]

3.3.

[Reserved.]

3.4.

Neither Company nor any of Company’s Affiliates will distribute or sell, or authorize any other party to distribute or sell, Covered Beverages or Related Products in the First-Line Territory, except:

3.4.1.

as expressly provided in this Agreement (including, in the case of Multiple Route to Market Beverages and Multiple Route to Market Related Products, as provided in Section 8);

3.4.2.

in accordance with, and for the time period specified in, the alternate route to market agreements identified on Schedule 3.4.2 in effect between Company and Bottler as of the Effective Date (which agreement(s) shall expire by its terms and shall not be renewed or extended except as determined by the Governance Board) (the “Existing Alternate Route to Market Agreements”); and

3.4.3.

under any new alternate route to market agreements established in conjunction with and approved by the Governance Board (“New Alternate Route to Market Agreements”).  

3.5.

Bottler will not authorize any wholesalers or other distributors to distribute or sell Covered Beverages or Related Products (including Multiple Route to Market Beverages or Multiple Route to Market Related Products) within or outside the First-Line Territory, except that Bottler may sell Covered Beverages and Related Products (including Multiple Route to Market Beverages and Multiple Route to Market Related Products) to Full Line Operators in the First-Line Territory for further distribution and sale of such Covered Beverages and Related Products by such Full Line Operators in the First-Line Territory.

3.6.

If and to the extent that Company distributes, or determines, in its sole discretion, to distribute a Beverage or Beverage Component that is neither a Covered Beverage nor a Related Product (or is a Multiple Route to Market Beverage or Multiple Route to Market Related Product to be distributed in the First-Line Territory via means other than Direct Store Delivery), Company may, in its sole discretion, determine or modify the appropriate business model for such distribution.  Company will discuss such business model with the Governance Board.  Company will offer Bottler the option to participate economically in such business model under commercially reasonable terms and conditions to be negotiated in good faith by the parties, as follows:

3.6.1.

in the case of fountain syrups, under (a) Local Marketing Partner Agreements governing Bottler’s distribution and/or sale of certain fountain post-mix beverage syrups to certain local accounts in the First-Line Territory, and/or (b) agreements addressing Bottler’s economic participation in the sale in the First-Line Territory of beverage syrups and other Beverage Components to national and regional food service customers and/or other chain or fountain accounts; and

3.6.2.

in the case of (a) a Beverage that is not a Covered Beverage, (b) a Beverage Component that is not a Related Product, or (c) to the extent distributed through means other than Direct Store Delivery, a Multiple Route to Market

Beverage or Multiple Route to Market Related Product, under one or more agreements addressing Bottler’s economic participation in the sale of such products in the First-Line Territory.

3.7.

In the case of any Covered Beverage or Related Product that the Governance Board determines will be distributed in the First-Line Territory via means other than Direct Store Delivery, Bottler’s economic participation will be addressed under the Existing Alternate Route To Market Agreements or New Alternate Route to Market Agreements.

4.

ALTERNATE ROUTES TO MARKET

5.

COMPANY AND BOTTLER RIGHTS AND OBLIGATIONS REGARDING THE TRADEMARKS

5.1.

Bottler acknowledges and agrees that Company is the sole and exclusive owner of all rights, title and interest in and to the Trademarks.  Company has the unrestricted right, in its sole discretion, to use the Trademarks on the Covered Beverages and Related Products and on all other products and merchandise, to determine which Trademarks will be used on which Covered Beverages and Related Products, and to determine how the Trademarks will be displayed and used on and in connection with the Covered Beverages and Related Products. Bottler agrees not to dispute the validity of the Trademarks or their exclusive ownership by Company either during the Term or thereafter, notwithstanding any applicable doctrines of licensee estoppel.  

5.2.

Company grants to Bottler only an exclusive, royalty-free license to use the Trademarks, solely in connection with the marketing, promotion, distribution, and sale of the Covered Beverages and Related Products in the First-Line Territory, all in accordance with standards adopted and issued by Company from time to time, and made available to Bottler through written, electronic, on-line or other form or media, subject to the rights reserved to Company under this Agreement.  

5.3.

Nothing in this Agreement, nor any act or failure to act by Bottler or Company, will give Bottler any proprietary or ownership interest of any kind in the Trademarks or in the goodwill associated therewith.

5.4.

Bottler acknowledges and agrees that all use of the Trademarks will inure to the benefit of Company.

5.5.

Except as set forth on Schedule 5.5, Bottler must not adopt or use any name, corporate name, trading name, title of establishment or other commercial designation or logo that includes the words “Coca‑Cola”, “Coca”, “Cola”, “Coke”, or any of them, or any word, name or designation that is confusingly similar to any of them, or any graphic or visual representation of the Trademarks or any other Trademark or intellectual property owned by Company,

without the prior written consent of Company, which consent shall not be unreasonably withheld and will be contingent on Bottler’s compliance with this Agreement.

5.6.

Bottler recognizes that the uniform external appearance of the Trademarks on distribution and other equipment and materials used under this Agreement is important to the Trademarks, the successful marketing of the Covered Beverages and Related Products, and the Coca-Cola system.

5.6.1.

Bottler agrees, to the extent such Trademarks are utilized by Bottler, to accept and, within a reasonable time, apply any new or modified standards adopted and issued from time to time by Company that are generally applicable, and made available to Bottler for the design and decoration of trucks and other delivery vehicles, cases, cartons, coolers, vending machines and other materials and equipment that bear such Trademarks and are used in the marketing, promotion, distribution, and sale of Covered Beverages and Related Products.

5.6.2.

If Company changes such standards, the new standards will apply to all such assets acquired by Bottler following receipt of Notice of the change in standards to the extent Bottler uses the Trademarks on such assets, and will be applied to such existing assets in the normal course of Bottler’s business (e.g., trucks would be repainted consistent with normal maintenance cycles).

6.

PRE-EXISTING COMMITMENTS

6.1.

Company and Bottler acknowledge that the sale by Company or its Affiliates of certain Covered Beverages or Related Products to certain customers or distributors in the First-Line Territory may be required under pre-existing commitments with such customers or distributors.  

6.1.1.

The pre-existing commitments, if any, applicable to the First-Line Territory are identified on Schedule 6.

6.1.2.

Company or its Affiliates may continue to distribute and sell Covered Beverages and Related Products in the First-Line Territory until the expiration of the applicable pre-existing commitment, but neither Company nor any of its Affiliates will exercise any voluntary rights to extend or renew the term of any such pre-existing commitment.  

6.1.3.

If a pre-existing commitment provides for automatic renewal, Company will use good faith efforts to provide a notice of termination rather than allow the pre-existing commitment to automatically renew, if Company may do so without breaching the pre-existing commitment or incurring any penalties.

7.

NEW BEVERAGE PRODUCTS

7.1.

If Company or a Company Affiliate proposes to distribute or sell, or authorize the distribution or sale of, any New Beverage Product in the First-Line Territory:

7.1.1.

Any such New Beverage Product that is a Mandated Beverage will be deemed a Covered Beverage, and Exhibit A will be deemed automatically amended to add

such Mandated Beverage to the list of Covered Beverages (and if the New Beverage Product is sold under a trademark not listed on Exhibit B, Exhibit B will be deemed automatically amended to add the trademark associated with the New Beverage Product).  

7.1.2.

Any such New Beverage Product that is a Mandated Related Product will be deemed a Related Product, and Exhibit F will be deemed automatically amended to add such Related Product to the list of Related Products (and if the New Beverage Product is sold under a trademark not listed on Exhibit B, Exhibit B will be deemed automatically amended to add the trademark associated with the New Beverage Product).

7.1.3.

Any such New Beverage Product that is not a Mandated Beverage or Mandated Related Product will be offered by Company through Notice to Bottler.

7.1.3.1.

The Notice must specify if such New Beverage Product is a Multiple Route to Market Beverage or Multiple Route to Market Related Product and, if so, the extent to which such New Beverage Product will be distributed in the First-Line Territory via Direct Store Delivery.

7.1.3.2.

Bottler will have the option to distribute and sell such New Beverage Product in the First-Line Territory under the terms and conditions of this Agreement.  

7.1.3.3.

Bottler's option under this Section 7.1.3 must be exercised by Bottler, if at all, by providing to Company Notice of such election within sixty (60) days following the date on which Bottler receives Notice from Company that Company intends to introduce the New Beverage Product in the First-Line Territory and provides Bottler with an operating plan for, and samples of, the New Beverage Product.

7.1.3.4.

If Bottler does not give Company timely Notice of Bottler's exercise of such option, then Company will have the right to market, promote, distribute and sell, or authorize others to market, promote, distribute and sell, in the First-Line Territory and otherwise undertake any activity with respect to the applicable New Beverage Product, including use of the Trademarks in connection with the marketing, promotion, distribution, and sale of the New Beverage Product in the First-Line Territory.

7.1.3.5.

If Bottler gives Company timely Notice of Bottler's exercise of such option, then, in the case of a new Beverage, Exhibit A will be deemed automatically amended to add such New Beverage Product to the list of Covered Beverages, and, in the case of a new Consumer Beverage Component, Exhibit F will be deemed automatically amended to add such New Beverage Product to

the list of Related Products (and if the New Beverage Product is sold under a trademark not listed on Exhibit B, Exhibit B will be deemed automatically amended to add the trademark associated with the New Beverage Product).

7.1.3.6.

If the Notice from Company to Bottler specified that a new Covered Beverage is a Multiple Route to Market Beverage, then Exhibit A will identify such Beverage as a Multiple Route to Market Beverage and specify the extent to which such new Multiple Route to Market Beverage will be distributed in the First-Line Territory via Direct Store Delivery.

7.1.3.7.

If the Notice from Company to Bottler specified that a new Related Product is a Multiple Route to Market Related Product, then Exhibit F will identify such product as a Multiple Route to Market Related Product and specify the extent to which such new Multiple Route to Market Related Product will be distributed in the First-Line Territory via Direct Store Delivery.  

7.1.3.8.

Company will, at Bottler’s request, provide updated versions of Exhibit A, Exhibit B and Exhibit F to reflect changes under this Section 7.1.3.

7.2.

If an Incubation Beverage exceeds the Volume Threshold and the Revenue Threshold for the immediately preceding twelve (12) month period, that Beverage will cease to be an Incubation Beverage and will be treated as a New Beverage Product subject to the provisions of this Section 7, including determination of whether such Beverage is a Mandated Beverage. To facilitate this transition, Company and Bottler will, as applicable, (a) terminate (without compensation or liability to one another) any agreement relating to the marketing, promotion, distribution, or sale of such Beverage binding only Company (or one of its Affiliates) and Bottler; or (b) negotiate in good faith, on terms mutually agreeable to Company and Bottler, the termination of any such agreement binding on any party other than Company (or one of its Affiliates) and Bottler.

7.3.

If a New Beverage Product is not owned by Company, then the parties may enter into a separate agreement with respect to Bottler’s distribution and sale of that New Beverage Product in the First-Line Territory.  

7.4.

If Company or one of its Affiliates acquires or licenses a New Beverage Product that becomes a Covered Beverage or Related Product under this Section 7, then Bottler’s rights to market, promote, distribute and sell such new Covered Beverage or Related Product will be subject to the terms of any agreements with third parties (including distribution agreements) that may be in effect as of the time that Company (or Company’s Affiliate) acquires or licenses the new Covered Beverage or the new Related Product.  Company and Bottler will, as applicable, (a) terminate (without compensation or liability to one another) any agreement relating to the marketing, promotion, distribution, or sale of such New Beverage Product binding only Company (or one of its Affiliates) and Bottler (or one of its Affiliates), or (b) negotiate in good faith, on terms mutually agreeable to Company and Bottler, the termination of any such

agreement binding on any party other than Company (or one of its Affiliates) and Bottler (or one of its Affiliates).

7.5.

If Bottler identifies any Beverage offered by a third party in a beverage category for which there is likely substantial demand in the First-Line Territory and in which category Company does not have a current or proposed entry, the Governance Board will, at Bottler’s request, evaluate such Beverage. If recommended by the Governance Board, Company will use commercially reasonable efforts to negotiate a licensing or other business arrangement with such third party that would facilitate distribution and sale of such Beverage in the First-Line Territory on terms acceptable to Company and Bottler.

8.

MULTIPLE ROUTE TO MARKET BEVERAGES AND MULTIPLE ROUTE TO MARKET RELATED PRODUCTS

8.1.

Bottler will be the sole and exclusive distributor of the Multiple Route to Market Beverages and of the Multiple Route to Market Related Products via Direct Store Delivery in the First-Line Territory.  

8.2.

Subject to the requirements of Section 7.1.3.1 and this Section 8, Company may distribute, and may authorize third parties to distribute, Beverages that are Multiple Route to Market Beverages and products that are Multiple Route to Market Related Products in the First-Line Territory via means other than Direct Store Delivery.

8.3.

A New Beverage Product will be a Multiple Route to Market Beverage, or Multiple Route to Market Related Product, as the case may be, if Company provides timely Notice of such designation as contemplated under Section 7.1.3.1.

8.4.

If Company’s Notice of a New Beverage Product under Section 7.1.3 failed to specify that such New Beverage Product is a Multiple Route to Market Beverage or Multiple Route to Market Related Product as required under Section 7.1.3.1, and such New Beverage Product becomes a Covered Beverage or Related Product under Section 7.1.3.5, then Company may not thereafter elect to designate that Covered Beverage or Related Product as a Multiple Route to Market Beverage or Multiple Route to Market Related Product, as the case may be.

9.

REFORMULATION, DISCONTINUATION AND TRANSFER OF COVERED BEVERAGES AND RELATED PRODUCTS

9.1.

Company has the sole and exclusive right and discretion to reformulate any Covered Beverage or Related Product.

9.2.

Company has the sole and exclusive right and discretion to discontinue, on a temporary or permanent basis, any of the Covered Beverages or Related Products under this Agreement provided that any such Covered Beverage or Related Product is discontinued for all Expanding Participating Bottlers and Participating Bottlers in the United States, and Company does not discontinue all Covered Beverages under this Agreement.  

9.2.1.

This right must be exercised by Company, if at all, by giving ninety (90) days’ prior Notice to Bottler of such discontinuation.

9.2.2.

If Company discontinues all SKUs and packages of any Covered Beverage, Exhibit A will be deemed automatically amended by deleting the discontinued Covered Beverage from the list of Covered Beverages.  If Company discontinues all SKUs and packages of any Related Product, Exhibit F will be deemed automatically amended by deleting the discontinued Related Product from the list of Related Products.  

9.3.

If Company discontinues a Covered Beverage or Related Product as contemplated under Section 9.2, then Bottler will have the right to continue to market, promote, distribute and sell unused inventories of the discontinued Covered Beverage or Related Product in the First-Line Territory in accordance with the provisions of this Agreement for a period not to exceed the earlier of the expiration date of such Covered Beverage or Related Product or six (6) months following Bottler’s receipt of Notice of the discontinuation of such Covered Beverage or Related Product.  

9.4.

If Company proposes to reintroduce any such discontinued Covered Beverage or Related Product (or reintroduce a Line Extension of a Covered Beverage or Related Product that is a discontinued Covered Beverage or discontinued Related Product) through any channel of retail distribution and sale in the United States of America, such product shall first be offered to Bottler under Section 7.1.3.

9.5.

If Company discontinues any Covered Beverage or Related Product and Company or one of its Affiliates subsequently wishes to transfer, assign or sell its rights in and to such discontinued Covered Beverage or Related Product (a “Transfer”) to a third party that is not an Affiliate of Company (a “Transferee”) within twelve (12) months following the later of (a) the date on which Company (through a Company Owned Distributor or otherwise) ceases distribution of a Covered Beverage or Related Product in all SKUs and packages and through all means of distribution, or (b) the expiration of the six (6) month period Bottler has to sell unused inventories of the discontinued Covered Beverage or Related Product, then Company (or its Affiliate) must first offer to Bottler the right to continue to distribute such discontinued Covered Beverage or Related Product as a New Beverage Product under Section 7.1.3.

9.5.1.

If Bottler elects to continue distributing such discontinued Covered Beverage or Related Product, then Company (or its Affiliate) must Transfer such discontinued Covered Beverage or Related Product to the Transferee subject to Bottler’s distribution rights under this Agreement with respect to such discontinued Covered Beverage or Related Product (as if the Covered Beverage or Related Product had not been discontinued). In that event, Bottler’s distribution rights with respect to the discontinued Covered Beverage or Related Product will be binding upon the Transferee.

9.6.

Bottler has the right to discontinue the marketing, promotion, distribution and sale, on a temporary or permanent basis, in all of the First-Line Territory, of any Covered Beverage or Related Product (or any Line Extension, SKU or package for a Covered Beverage or Related Product) that is not a Mandated Beverage or Mandated Related Product.  

9.6.1.

This right must be exercised by Bottler, if at all, by giving ninety (90) days’ prior Notice to Company of such discontinuation, specifying that the Notice of discontinuation applies to all of the First-Line Territory.  

9.6.2.

Upon expiration of such ninety (90) day period, Bottler may cease the marketing, promotion, distribution, and sale of the discontinued Covered Beverage or Related Product (or Line Extension, SKU or package for a Covered Beverage or Related Product) in all of the First-Line Territory, and, if Bottler is discontinuing distribution of all Line Extensions, SKUs and packages of a Covered Beverage or Related Product, Exhibit A or Exhibit F will be deemed automatically amended by deleting the discontinued Covered Beverage or Related Product from the list of Covered Beverages or Related Products, as applicable.

9.6.3.

If (and only if) Bottler discontinues all Line Extensions, SKUs and packages of a Covered Beverage or Related Product under this Section 9.6, Company may distribute and sell the discontinued Covered Beverage or Related Product in the First-Line Territory or authorize any of its Affiliates or others to do so.

9.7.

Bottler has the right to discontinue the marketing, promotion, distribution and sale of any Line Extension, SKU or package (other than a Mandated Beverage or Mandated Related Product) in any portion of the First-Line Territory without providing prior Notice to Company.

9.7.1.

In that event, Company may not distribute or sell the discontinued Line Extension, SKU or package in the First-Line Territory or authorize any of its Affiliates or others to do so unless Bottler has discontinued all Line Extensions, SKUs and packages of the Covered Beverage or Related Product.  

9.7.2.

If Bottler discontinues some (but not all) Line Extensions, SKUs or packages for a Covered Beverage or Related Product, then Bottler may thereafter reinstate the discontinued Line Extension, SKU or package.

9.8.

If Company Transfers one or more Covered Beverages or Related Products to a Transferee, Company must Transfer such Covered Beverage(s) or Related Product(s) to the Transferee subject to Bottler’s distribution rights and trademark license under Sections 3.1 through 3.4 and Sections 5.1 through 5.4 of this Agreement.  Bottler’s distribution rights and trademark license for such Transferred Covered Beverage(s) or Related Product(s) (and, in each case, for all future Line Extensions, SKUs or packages thereof) will be binding upon the Transferee.  The following provisions of this Agreement will apply to Bottler’s continuing  distribution of the Transferred Covered Beverages or Related Products:  Section 9.1, Section 9.2 (except that the requirement in Section 9.2 that all Covered Beverages under this Agreement may not be discontinued will not apply to the Transferee), Section 9.7, Section 10, Section 14.6, Section 14.9, Section 15, Section 18, Section 19, Section 20, Section 21, Section 22.1.1, Section 22.1.2, Section 22.1.3, Section 22.1.8, Section 23 (to the extent relevant to Sections 22.1.1, 22.1.2, 22.1.3 and 21.1.8), Sections 27 through 34, Sections 36 through 40.3, and Section 42 (and such provisions will be binding upon Bottler and the Transferee of the Transferred Covered Beverages or Related Products).  Company will require that the Transferee enter into good faith negotiations with Bottler regarding such other terms and conditions that Bottler or Transferee reasonably believe to be necessary to a new distribution agreement with respect

to such Transferred Covered Beverage(s) or Related Product(s), including with respect to choice of law, venue, and dispute resolution, under which Bottler will continue to distribute the Transferred Covered Beverages or Related Products.  Bottler will negotiate in good faith with the Transferee regarding the terms of such new distribution agreement with Transferee, consistent with the provisions of this Section 9.8.  If Company Transfers any Covered Beverage or Related Product to a Transferee, Exhibit A or Exhibit F, as applicable, will be deemed automatically amended by deleting the Transferred Covered Beverage or Related Product from the list of Covered Beverages or Related Products, and Schedule 2.32 will be deemed automatically amended by adding such Transferred Covered Beverage or Related Product to the list of Permitted Beverage Products.  

10.

TERRITORIAL LIMITATIONS AND TRANSSHIPPING

10.1.

Bottler recognizes that Company has entered into or may enter into agreements relating to the Covered Beverages and Related Products with other parties outside the First-Line Territory, and Bottler accepts the territorial limitations in this Agreement imposed on Bottler in the conduct of its business under this Agreement.  Bottler agrees to make every reasonable effort to settle amicably any disputes that arise with such other parties.

10.2.

Bottler must not distribute or sell any Covered Beverages or Related Products (a) outside of the First-Line Territory or (b) to any Person if Bottler knows or should know that such Person will redistribute the Covered Beverages or Related Products for ultimate sale outside the First-Line Territory.  

10.2.1.

If any Covered Beverages or Related Products distributed or sold by Bottler are found in the territory of another U.S. Coca-Cola Bottler, including a Company Owned Distributor (the “Injured Bottler”), then Bottler shall be deemed to have transshipped such Covered Beverage or Related Product and shall be deemed to be a “Transshipping Bottler” for purposes of this Agreement; provided, however, that if the Injured Bottler (other than a Company Owned Distributor) has not agreed to terms substantially similar to this Section 10.2 with respect to the transshipment of Covered Beverages or Related Products, Bottler shall only be deemed to be a “Transshipping Bottler” if (a) Bottler distributes or sells Covered Beverages or Related Products outside of the First-Line Territory, or (b) Bottler sells Covered Beverages or Related Products to a purchaser that Bottler knew or should have known would redistribute the Covered Beverage or Related Product outside of the First-Line Territory.

10.2.2.

If any Covered Beverages or Related Products (or any other products identified by the primary Trademark that also identifies any of the Covered Beverages or Related Products or any modification of such Trademark (i.e., the addition of a prefix, suffix or other modifier used in conjunction with any such Trademark)) distributed or sold by another U.S. Coca-Cola Bottler (including a Company Owned Distributor) are found in Bottler’s First-Line Territory, then Bottler shall be referred to herein as the “Injured Bottler” and such other U.S. Coca-Cola Bottler shall be referred to herein as the “Transshipping Bottler”; provided, however, that if the bottler that distributed or sold such products (other than a Company Owned Distributor) has not agreed to terms substantially similar to this Section 10.2 with respect to the transshipment of Company’s products,

Bottler will only be deemed to be an “Injured Bottler” if such bottler (a) distributes or sells such products in the First-Line Territory or (b) knew or should have known that the purchaser would redistribute the products outside of such bottler’s territory prior to ultimate sale.

10.2.3.

If Company does not have sufficient contractual rights to fully implement the transshipping remedies provided for in this Section 10.2, Company will nevertheless use reasonable efforts to enforce its transshipping policy against the Transshipping Bottler to (a) prevent future transshipments, and (b) cause the Transshipping Bottler to compensate Bottler to the extent possible.

10.2.4.

Bottler will only be an Injured Bottler if the product transshipped into Bottler’s First-Line Territory is a Covered Beverage or Related Product (or any other product that is identified by the primary Trademark that also identifies any of the Covered Beverages or Related Products or any modification of such trademark (i.e., the addition of a prefix, suffix or other modifier used in conjunction with any such trademark)).

10.2.5.

Company may require Transshipping Bottler and/or Injured Bottler, as the case may be, to make available to representatives of Company all sales agreements and other records relating to the Covered Beverages or Related Products and assist Company in all investigations relating to the distribution and sale of Covered Beverages or Related Products outside Transshipping Bottler’s territory or to the transshipment of products by another bottler into Injured Bottler’s territory.

10.2.6.

In addition to all other remedies Company may have against Transshipping Bottler for violation of this Section 10.2, Company, in the case where both the Transshipping Bottler and the Injured Bottler are Expanding Participating Bottlers (or an Expanding Participating Bottler and a Company Owned Distributor or a Participating Bottler), will use commercially reasonable good faith efforts, and in all other cases may determine, in its sole discretion, to:

10.2.6.1.

charge any Transshipping Bottler an amount equal to three (3) times the Injured Bottler’s most current average gross profit margin per case for all cases sold across all channels of the Covered Beverage or Related Product transshipped, as reasonably estimated by Company.  Injured Bottler shall provide Company with any supporting documentation reasonably requested by Company; and/or

10.2.6.2.

purchase any of the Covered Beverages or Related Products distributed or sold by Transshipping Bottler found in the Injured Bottler's territory, and Transshipping Bottler will, in addition to any other obligation it may have under this Agreement, reimburse Company for Company's cost of purchasing, transporting and/or destroying such Covered Beverages or Related Products.

10.2.7.

Bottler and Company acknowledge and agree that the amounts provided for under Section 10.2.6 reasonably reflect the damages to Company, the Injured Bottler, and the Coca-Cola system.

10.2.8.

Transshipping Bottler must promptly pay to Company all amounts charged by Company pursuant to Section 10.2.6.  The Injured Bottler will be paid when Company has received payment from Transshipping Bottler. If Company recovers payment from the Transshipping Bottler under Section 10.2.6.1, the Injured Bottler will be paid an amount not less than seventy percent (70%) of such amount recovered by Company.

10.2.9.

Company has the right to collect any amounts payable by Transshipping Bottler under Section 10.2.6 by offset against any undisputed amounts otherwise payable to Transshipping Bottler by Company.

10.3.

Bottler must create, implement and monitor an internal anti-transshipment compliance policy and will provide such policy to Company for review and approval.  Company will have the right to audit Bottler’s compliance with the policy.

10.4.

If Company determines that a customer of Bottler has repeatedly transshipped Covered Beverages or Related Products outside of the First-Line Territory, Company may require that Bottler develop and implement a remediation plan that will address and resolve the issue.  Bottler will submit the remediation plan to Company for review and approval, and, once approved by Company, Bottler will implement the plan.

11.

ADDITIONAL TERRITORIES

11.1.

If Bottler acquires the right to distribute under direct authorization from Company any of the Covered Beverages or Related Products in any territory in the United States of America outside of the First-Line Territory, then, unless otherwise agreed in writing by Company and Bottler, such additional territory will automatically be deemed to be included within the First-Line Territory covered under this Agreement for all purposes, and Exhibit C will be automatically amended to add such additional territory to the First-Line Territory identified in Exhibit C.

11.2.

[Reserved.]

11.3.

Any separate agreement that may exist concerning such distribution and sale in such additional territory will be deemed terminated and superseded by this Agreement.

11.4.

The parties agree to cooperate in taking such other actions as may reasonably be required to further document any amendments and modifications resulting from the foregoing.

11.5.

For purposes of clarity, this Section 11 will not apply to Bottler’s acquisition of any right to distribute any of the Covered Beverages or Related Products in any territory in the United States of America outside of the First-Line Territory acquired by Bottler from Coca‑Cola Refreshments USA, Inc. (“CCR”) or another Company Owned Distributor under a sub-bottling arrangement.

12.

EFFECT OF NEW OR AMENDED AUTHORIZATION AGREEMENTS WITH OTHER EXPANDING PARTICIPATING BOTTLERS

12.1.

If Company or a Company Affiliate on or after December 31, 2013 (a) enters into a new authorization agreement to market, promote, distribute and sell Covered Beverages and Related Products in first-line territories in the United States of America with another Expanding Participating Bottler that is more favorable to such other Expanding Participating Bottler than the terms and conditions of this Agreement in any material respect, or (b) agrees to an amendment of the terms of an existing authorization agreement to market, promote, distribute and sell Covered Beverages and Related Products in first-line territories in the United States with another Expanding Participating Bottler that is more favorable to such other Expanding Participating Bottler than the terms and conditions of this Agreement in any material respect, then Company will offer such other new agreement or amended agreement, as the case may be (collectively, the “New Agreement”), in its entirety to such Bottler.  If the New Agreement relates to less than all of the Covered Beverages and Related Products, then the agreement or amendment offered to Bottler under this Section 12.1 will cover only those Covered Beverages and Related Products covered by the New Agreement.

12.2.

The obligation under Section 12.1 shall not apply to any consent, waiver or approval provided under this Agreement or under any agreement held by another Expanding Participating Bottler or to any amendment of this Agreement (or any similar agreement) in accordance with Section 24.4.3 of this Agreement (or in accordance with any similar provision in any similar agreement).

12.3.

Nothing in this Section 12 will affect Company’s obligation under Section 16.4 that the “price” charged by Company or any Affiliate of Company that is not a Regional Producing Bottler for each SKU of Covered Beverages and Related Products produced by or on behalf of Company will not exceed the “price” charged by Company or any such Affiliate to any other Expanding Participating Bottler, Participating Bottler, or Company Owned Distributor in the United States for each such SKU of Covered Beverages or Related Products.

12.4.

The parties agree to cooperate in taking such other actions as may reasonably be required to further document any amendments and modifications resulting from the foregoing.

13.

OBLIGATIONS OF BOTTLER AS TO OTHER BEVERAGE PRODUCTS AND OTHER BUSINESS ACTIVITIES

13.1.

Bottler covenants and agrees (subject to any requirements imposed upon Bottler under applicable law) not to produce, manufacture, prepare, package, distribute, sell, deal in or otherwise use or handle any Beverage, Beverage Component, or other beverage product except for:

13.1.1.

Covered Beverages and Related Products, subject to the terms and conditions of this Agreement and any Related Agreement;

13.1.2.

Permitted Beverage Products;

13.1.3.

Beverages (including Incubation Beverages), Beverage Components and other beverage products, if and to the extent (a) required for Bottler or any of its Affiliates to comply with its obligations under any separate written agreement

with Company or any of Company’s Affiliates, or (b) otherwise requested by Company or any of its Affiliates; and

13.1.4.

Beverages, Beverage Components and other beverage products to the extent handled, distributed or sold by Bottler or any of its Affiliates solely in connection with a Permitted Ancillary Business. For avoidance of doubt, the parties acknowledge that a Beverage, Beverage Component or other beverage product will not constitute a Permitted Beverage Product unless it is specifically identified as a Permitted Beverage Product in Schedule 2.32. If Bottler distributes, sells, or handles a Beverage, Beverage Component, or other beverage product, other than a (i) Covered Beverage, (ii) Related Product, or (iii) Permitted Beverage Product identified in Schedule 2.32, as part of a Permitted Ancillary Business that is specifically identified in Schedule 2.31, then Bottler will, as applicable, be permitted to distribute, sell, or handle that Beverage, Beverage Component or other beverage product subject to any limitations specified in Schedule 2.31, solely as part of such Permitted Ancillary Business, and not for any other purpose.  The fact that Bottler distributes sells, deals in or handles a Beverage, Beverage Component or other beverage product as part of a Permitted Ancillary Business will not, itself, make that Beverage, Beverage Component or other beverage product a Permitted Beverage Product.

13.2.

Bottler covenants and agrees not to produce, manufacture, prepare, package, distribute, sell, deal in or otherwise use or handle:

13.2.1.

any Beverage, Beverage Component or other beverage product that is likely to be confused with or passed off for any of the Covered Beverages or Related Products or any Beverage Component for any Covered Beverage or Related Product;

13.2.2.

during the Term and for an additional period of two (2) years following expiration or termination of this Agreement, (a) any Beverage, Beverage Component or other beverage product the name of which includes the word “cola” (whether alone or in conjunction with any other word or words) or any phonetic equivalent thereof, or (b) any Beverage, Beverage Component or other beverage product that is an imitation of any of the Covered Beverages or Related Products (or of any Beverage Component for any Covered Beverage or Related Product) as of the expiration or termination of this Agreement, or is likely to be substituted for any of such Covered Beverages or Related Products (or for any such Beverage Component);

13.2.3.

any product that uses any trade dress or any container that (a) is an imitation, infringement or dilution of, or (b) is likely to be confused with, be perceived by consumers as confusingly similar to, be passed off as, or cause dilution of, any trade dress or container in which Company claims a proprietary right or interest;

13.2.4.

any product that (a) uses any trademark or other designation that is an imitation, counterfeit, copy, infringement or dilution of, or confusingly similar to any of the Trademarks, or (b) is likely to be passed off as a product of Company

because of Bottler's association with the business of distributing and selling the Covered Beverages and Related Products.

13.3.

Bottler covenants and agrees not to acquire or hold directly or indirectly through any Affiliate, whether located within or outside of the First-Line Territory, any ownership interest in any Person that engages in any of the activities prohibited under Section 13.1 or Section 13.2; or enter into any contract or arrangement with respect to the management or control of any Person, within or outside of the First-Line Territory, that would enable Bottler or any Affiliate of Bottler acting collectively with such Person to engage indirectly in any of the activities prohibited under Section 13.1 or Section 13.2.

13.3.1.

Bottler and its Affiliates will, however, be permitted to acquire and own securities registered pursuant to the Securities Exchange Act of 1934, as amended, or registered for public sale under similar laws of a foreign country, of a company that engages in any of the activities prohibited under Section 13.1 or Section 13.2, in pension, retirement, annuity, life insurance, and estate planning accounts, plans and funds administered by Bottler or any of its Affiliates for the benefit of employees, officers, shareholders or directors of Bottler or any of its Affiliates where investment decisions involving such securities are made by independent outside investment or fund managers that are not Affiliates of Bottler; provided that such ownership represents a passive investment and that neither Bottler nor any Affiliate of Bottler in any way, either directly or indirectly, manages or exercises control of such company, guarantees any of its financial obligations, consults with, advises, or otherwise takes any part in its business (other than exercising rights as a shareholder), or seeks to do any of the foregoing.

13.4.

Bottler covenants and agrees that neither Bottler nor its Affiliates will use delivery vehicles, cases, cartons, coolers, vending machines or other equipment bearing Company’s Trademarks in connection with, or assign personnel or management whose primary duties relate to delivery or sales of Covered Beverages or Related Products (other than executive officers of Bottler) to, any line of business other than the marketing, promotion, distribution, and sale of Covered Beverages, Related Products and Permitted Beverage Products; provided, however, that:

13.4.1.

any of Bottler’s assets and personnel or management whose primary duties relate to delivery or sales of Covered Beverages or Related Products may be used in a Permitted Ancillary Business, subject to any limitations specified in Schedule 2.31, or a Permitted Line of Business, subject to any limitations specified in Schedule 2.33, anywhere within (or, as applicable, outside of) Bottler’s First-Line Territory without further approvals from Company; and

13.4.2.

Company and Bottler acknowledge that to meet competition Bottler may from time to time be required to agree to deliver a de minimis volume of non-alcoholic beverage products and/or other consumable products that would otherwise be prohibited by Sections 13.1, 13.2 or 13.4 to certain local, on-premise vending, cafeteria and workplace customers that offer a contract for the supply of all such beverage and consumable products that are delivered to a

particular location (e.g., a vending machine, office location, arena, or on‑premise employee store).  

13.4.2.1.

In such circumstances, Bottler agrees to use best efforts to comply with Sections 13.1, 13.2 and 13.4.

13.4.2.2.

Company consents to delivery by Bottler of such de minimis volume of such products to such customers to the extent that, despite Bottler’s best efforts to satisfy customer demand for Covered Beverages and Related Products consistent with Sections 13.1, 13.2 and 13.4, such customers nonetheless require such delivery by Bottler to meet competition.

13.4.2.3.

For each such instance, if requested by Company, Bottler agrees to provide to Company such information as may reasonably be requested by Company so that Company can assess Bottler’s compliance with this Section 13.4.2 (including information regarding the nature of the competitive threat and the volumes of product involved).

14.

OBLIGATIONS OF BOTTLER RELATIVE TO MARKETING, PROMOTION, DISTRIBUTION, SALES, SYSTEM GOVERNANCE, PURCHASING, MANAGEMENT, REPORTING AND PLANNING ACTIVITIES

14.1.

Bottler will market, promote, distribute and sell Covered Beverages and Related Products in the First-Line Territory, subject to the terms and conditions of this Agreement, and buy exclusively from Company (directly or through its Affiliate), or from Company Authorized Suppliers, Covered Beverages and Related Products in the quantities required to, when taken together with any Covered Beverages or Related Products manufactured by Bottler for its own account pursuant to Section 3.1.3, satisfy fully the demand for the Covered Beverages and Related Products in the First-Line Territory.

14.2.

Bottler will comply with the Volume Per Capita performance standards stated in this Section 14.2.

14.2.1.

For purposes hereof:

14.2.1.1.

“Measurement Period” means one (1) calendar year (i.e., January 1st through December 31st).

14.2.1.2.

“Equivalent Case Volume Per Capita” means the total aggregated volume of 192 ounce equivalent cases of all Covered Beverages sold in a bottler territory divided by the population for such territory as determined based on the then most current information published by the United States Census Bureau.

14.2.1.3.

“Equivalent Case Volume Per Capita Change Rate” means the percentage change obtained by dividing (a) the Equivalent Case Volume Per Capita for a given Measurement Period, by (b) the

Equivalent Case Volume Per Capita for the immediately preceding Measurement Period.   For example, if the Equivalent Case Volume Per Capita for period 1 is 100 and the Equivalent Case Volume Per Capita for period 2 is 105, the percentage change would be 105/100 = 1.05 or 5%.

14.2.2.

For each Measurement Period during the Term, Bottler will ensure that Bottler’s annual Equivalent Case Volume Per Capita Change Rate is not less than 1 standard deviation below the median of the annual Equivalent Case Volume Per Capita Change Rates for all U.S. Coca‑Cola Bottlers during that Measurement Period.

14.2.3.

Such performance will be measured on an annual basis and calculated using the Median Absolute Deviation methodology as set forth in Schedule 14.2.

14.2.4.

The first Measurement Period will commence with the first full calendar year following the first anniversary of the Effective Date.

14.2.5.

As soon as practicable following the end of a Measurement Period (but in no event later than the end of the first calendar quarter following the Measurement Period), Company will provide Notice to Bottler specifying whether or not Bottler satisfied its obligations under this Section 14.2 in such Measurement Period.

14.2.6.

Failure to satisfy the obligations under this Section 14.2 in any single given Measurement Period (other than the Volume Per Capita Cure Period defined in Section 14.2.7) shall not be considered a breach or default under this Agreement.

14.2.7.

If Bottler fails to satisfy its obligations under this Section 14.2 for two (2) consecutive Measurement Periods, Company will provide Notice to Bottler (a “Volume Per Capita Performance Notice”) as soon as practicable following the end of the second of such two (2) consecutive Measurement Periods (but in no event later than the end of the first calendar quarter following the second consecutive Measurement Period), and Bottler will have the right to cure during the twelve (12) month period beginning on July 1 following Bottler’s receipt of the Volume Per Capita Performance Notice (the “Volume Per Capita Cure Period”), by achieving an Equivalent Case Volume Per Capita Change Rate for the Volume Per Capita Cure Period that is not less than 1 standard deviation below the median of the Equivalent Case Volume Per Capita Change Rates for all U.S. Coca-Cola Bottlers for such period (“Volume Per Capita Cure Requirement”).

14.2.8.

If Bottler fails to satisfy the Volume Per Capita Cure Requirement, Bottler will be deemed in breach of its obligations under Section 14.2.

14.2.9.

Company’s sole and exclusive remedy for any breach of this Section 14.2 will be termination of this Agreement under Section 22.  If Company wishes to exercise its right to terminate under Section 22 based upon a breach of this Section 14.2,

then Company must provide Bottler with Notice of termination within twelve (12) months following the end of the Volume Per Capita Cure Period.

14.2.10.

Company will, at Bottler’s request, provide to an independent third party mutually agreed upon by Bottler and Company the data reasonably necessary to confirm Bottler’s compliance with (or failure to comply with) its obligations under this Section 14.2, subject to the provisions of Section 42 and any confidentiality obligations to other U.S. Coca-Cola Bottlers.  Company will provide data regarding other U.S. Coca-Cola Bottlers’ performance only on an anonymous basis (i.e., data will not be identified with or linked to any particular bottler).  Bottler further acknowledges that its performance data will be provided to other U.S. Coca-Cola Bottlers that are parties to an agreement with provisions substantially similar to this Section 14.2, subject to the same limitations as this Section 14.2.

14.2.11.

If the number of U.S. Coca-Cola Bottlers whose data is used to compute the annual Equivalent Case Volume Per Capita Change Rates for all U.S. Coca-Cola Bottlers for any Measurement Period is less than fifteen (15), then Bottler and Company will consider in good faith any modifications to this Section 14.2 necessary to take into account the smaller sample size.  The provisions of this Section 14.2 will continue to apply unless and until Bottler and Company mutually agree upon any such revisions.

14.3.

Bottler will participate fully in, and comply fully with, operating, customer, commercial, pricing, sales, merchandizing, planning, and other requirements and programs established from time to time by the Governance Board.

14.4.

Bottler will provide competent and well-trained management and recruit, train, maintain and direct all personnel as required to perform all of Bottler’s obligations under this Agreement, and, in accordance with any requirements imposed upon Bottler under applicable laws, consult with Company, as applicable, before hiring a new Chief Executive Officer, senior operating officer, senior financial officer, or senior commercial officer of Bottler; provided however, that Company’s consent will not be required with respect to such hiring decisions made by Bottler.

14.5.

Bottler will make capital expenditures (as defined under generally accepted accounting principles in force in the United States of America), in Bottler’s business of marketing, promoting, distributing, and selling Covered Beverages and Related Products in the First-Line Territory, in amounts equal to the greater of (a) two percent (2%) of Bottler’s Annual Net Revenue related to the distribution and sale of Covered Beverages and Related Products over each rolling five-calendar year period during the Term, or (b) such other amount as reasonably required for Bottler to comply with its obligations under this Agreement. Such capital expenditures will be for the organization, installation, operation, maintenance and replacement within the First-Line Territory of such warehousing, distribution, delivery, transportation, vending equipment, merchandising equipment, and other facilities, infrastructure, assets, and equipment.

14.5.1.

For this purpose,

14.5.1.1.

Capital expenditures will be calculated on a cash (rather than accrual) basis (i.e., it will be assumed that all such capitalized expenditures are expensed in the year made rather than capitalized and amortized).

14.5.1.2.

“Bottler’s Annual Net Revenue” means, for each Bottler fiscal year, all revenue to Bottler on sales of Covered Beverages and Related Products plus all full service vending income plus all agency or other delivery fees minus customer discounts, allowances, and deductions for early payment minus full service vending commissions minus applicable sales taxes.

14.5.1.3.

A “rolling five-calendar year period” will consist of any period of five (5) consecutive calendar years (e.g., calendar years 2014 through 2018 would constitute a rolling five-calendar year period, and calendar years 2015 through 2019 would constitute the next rolling five-calendar year period).

14.6.

Bottler will budget and spend such funds for its own account for marketing and promoting the Covered Beverages and Related Products as reasonably required to create, stimulate and sustain the demand for the Covered Beverages and Related Products in the First-Line Territory, provided that Bottler must use, publish, maintain or distribute only such advertising, marketing, promotional or other materials relating to the Covered Beverages or the Related Products that are in accordance with standards adopted and issued by Company from time to time or that Company has otherwise approved or authorized.  Company may agree from time to time to contribute financially to Bottler's marketing programs, subject to such terms and conditions as Company may establish from time to time. Company may also undertake, and at its own expense and independently from Bottler, any additional advertising, marketing or promotional activities in the First-Line Territory that Company deems useful or appropriate.

14.7.

In addition to the minimum requirements set forth in Section 14.1 through Section 14.6, Bottler will use all approved means as may be reasonably necessary to meet the continuing responsibility of Bottler to develop and stimulate and satisfy fully the demand for Covered Beverages and Related Products within the First-Line Territory, and maintain the consolidated financial capacity reasonably necessary to assure that Bottler and all Bottler Affiliates will be financially able to perform their respective duties and obligations under this Agreement.

14.8.

Bottler will provide to Company each year and review with Company an annual and long range operating plan and budget for the Business, as defined in Section 24.1, including financials and capital investment budgets, and, if requested by Company, discuss changes in general management and senior management of the Business, except to the extent otherwise prohibited by applicable law.

14.9.

Bottler will maintain accurate books, accounts and records relating to the purchasing, marketing, promotion, distribution, and sale of Covered Beverages and Related Products in the First-Line Territory.

14.10.

Bottler will provide to Company such operational, financial, accounting, forecasting, planning and other information, including audited and unaudited financial statements, income statements, balance sheets, statements of cash flow, operating metrics, and total and outlet level volume performance for each and all Covered Beverages and Related Products, (a) to the extent, in the form and manner, and at such times as reasonably required by Company to determine whether Bottler is performing its  obligations  under this Agreement, including under Section 14.2 and Section 14.5; (b) as expressly set forth in the Incidence Agreement, and other Related Agreements; and (c) as determined from time to time by the Governance Board (collectively, the “Financial Information”).  

14.10.1.

The parties recognize that the Financial Information is critical to the ability of Company and the Governance Board to maintain, promote, and safeguard the overall performance, efficiency, and integrity of the customer management, distribution and sales system.

14.10.2.

Company will hold the Financial Information provided by Bottler in accordance with the confidentiality provisions of Section 42 and shall not use such information for any purpose other than determining compliance with this Agreement or any Related Agreement (including the  Incidence Agreement), or in connection with the implementation, administration, and operation of the Governance Board.

15.

PRODUCT QUALITY AND STORAGE, HANDLING AND RECALL OF THE COVERED BEVERAGES AND RELATED PRODUCTS

15.1.

Bottler’s handling, storage, delivery and merchandising of the Covered Beverages and Related Products must at all times and in all events:

15.1.1.

conform to the quality and safety standards and instructions, including product quality, hygienic, environmental and otherwise, reasonably established in writing, including through electronic systems and media, from time to time by Company, which standards and instructions shall be applicable to all Expanding Participating Bottlers and Participating Bottlers; provided, however, that (a) Company may make limited exceptions in application or enforcement where necessary to prevent undue hardship for an Expanding Participating Bottler or a Participating Bottler, which exceptions shall not in any way be deemed to modify the quality and safety standards and instructions and (b) this Section 15.1.1 shall not in any way effect, limit, or modify any of Bottler’s or Company’s respective rights and obligations under this Agreement, including Bottler’s obligations under Section 15.1; and

15.1.2.

conform with all applicable food, health, environmental, safety, sanitation and other relevant laws, regulations and other legal requirements applicable in the First-Line Territory.

15.2.

If Company determines or becomes aware of the existence of any quality or technical problems relating to Covered Beverages or Related Products, Company will immediately notify Bottler by telephone, fax, e-mail or any other form of immediate communication.

15.2.1.

Company may require Bottler to take all necessary action to recall all of such Covered Beverages or Related Products furnished by Company (directly or through its Affiliate) or a Company Authorized Supplier, or withdraw immediately such Covered Beverages or Related Products from the market or the trade, as the case may be.  

15.2.2.

Company will notify Bottler by telephone, fax, e-mail or any other form of immediate communication of the decision by Company to require Bottler to recall Covered Beverages or Related Products or withdraw such Covered Beverages or Related Products from the market or trade. Upon receipt of such Notice, Bottler must immediately cease distribution of such Covered Beverages or Related Products and take such other actions as may be required by Company in connection with the recall of Covered Beverages or Related Products or withdrawal of such Covered Beverages or Related Products from the market or trade.

15.3.

If Bottler determines or becomes aware of the existence of quality or technical problems relating to Covered Beverages or Related Products supplied by Company (directly or through its Affiliate) or a Company Authorized Supplier to Bottler, then Bottler must immediately notify Company by telephone, e-mail or any other form of immediate communication. This notification must include: (a) the identity and quantities of Covered Beverages or Related Products involved, including the specific packages, (b) coding data, and (c) all other relevant data that will assist in tracing such Covered Beverages or Related Products.

15.4.

If any withdrawal or recall is caused by quality or technical defects arising from the manufacture, packaging, storage or shipment of the Covered Beverages or Related Products or other packaging or materials prior to delivery to Bottler, Company will reimburse Bottler for all reasonable expenses incurred by Bottler in connection with such withdrawal or recall.

15.5.

If any withdrawal or recall of any Covered Beverage or Related Product is caused by Bottler's failure to handle the Covered Beverage or Related Product properly after delivery to Bottler from Company (directly or through its Affiliate) or Company Authorized Supplier, then Bottler will bear the reasonable expenses of such withdrawal or recall and reimburse Company for all reasonable expenses incurred by Company in connection with such withdrawal or recall.

15.6.

Bottler will permit Company, its officers, agents or designees, at all times upon reasonable request by Company, to enter and inspect the facilities, equipment and methods used by Bottler, whether directly or incidentally, in or for the storage and handling of the Covered Beverages and Related Products to ascertain whether Bottler is complying with the terms of this Agreement, including Sections 15.1 and 15.2.  Bottler will also provide Company with all the information regarding Bottler’s compliance with the terms of this Agreement, including Sections 15.1 and 15.2, as Company may reasonably request from time to time.

16.

PRICING AND OTHER CONDITIONS OF PURCHASE AND SALE

16.1.

Company (directly or through any Affiliate of Company that is not a Regional Producing Bottler) will require that  Covered Beverages and Related Products supplied to Bottler by any Regional Producing Bottler be furnished in accordance with the pricing terms and other terms and conditions set forth in the Finished Goods Supply Agreement.

16.2.

Company (directly or through any Affiliate of Company that is not a Regional Producing Bottler) reserves the right to establish and revise at any time, in its sole discretion, the price for each SKU of the Covered Beverages and Related Products produced by or on behalf of Company and furnished by Company to Bottler.

16.3.

As used in Section 16.2 and Section 16.4 hereof, “price” means the national delivered price established and revised by Company or any such Affiliate from time to time in its sole discretion, including any freight charges, but without regard to marketing, trade or other funding, or non-financial support by Company related to the Covered Beverages or Related Products.

16.4.

The price charged by Company (or any Affiliate of Company that is not a Regional Producing Bottler) to Bottler for each SKU of Covered Beverages and Related Products produced by or on behalf of Company and supplied to Bottler will not exceed the price charged by Company (or any such Affiliate) to any other Expanding Participating Bottler, Participating Bottler, or Company Owned Distributor in the United States for each such respective SKU.

16.5.

Bottler further acknowledges that Company reserves the right to establish and revise at any time, in its sole discretion the price of concentrate, beverage base, or any other constituent part sold by Company (directly or through its Affiliate) to any Regional Producing Bottler or other Company Authorized Supplier for the manufacture of the Covered Beverages and Related Products.

17.

OWNERSHIP AND CONTROL OF BOTTLER

17.1.

Bottler hereby acknowledges the personal nature of Bottler’s obligations under this Agreement, including with respect to the performance standards applicable to Bottler, the dependence of the Trademarks on proper quality control, the level of marketing effort required of Bottler to stimulate and maintain demand for the Covered Beverages and Related Products in the First-Line Territory, and the confidentiality required for protection of Company’s trade secrets and confidential information.

17.2.

Bottler represents and warrants to Company that, prior to execution of this Agreement, Bottler has made available to Company a complete and accurate list of Persons that own more than five percent (5%) of the outstanding securities of Bottler, and/or of any third parties having a right to, or effective power of, control or management of Bottler (whether through contract or otherwise).

17.3.

Bottler covenants and agrees:

17.3.1.

to inform Company without delay of any changes in the record ownership (or, if known to Bottler, any change in the Beneficial Ownership) of more than ten percent (10%) of the shares of Bottler’s outstanding equity interests in a transaction or series of related transactions, provided, that if Bottler is subject to the disclosure and reporting requirements of the Securities Exchange Act of 1934, as amended, this Section 17.3.1 shall not apply;

17.3.2.

to inform Company without delay if a Change of Control occurs with respect to Bottler; and

17.3.3.

not to change its legal form of organization without first obtaining the written consent of Company, which consent will not be unreasonably withheld, conditioned or delayed. It is understood and agreed that Company will not withhold its consent unless the change in legal form could reasonably be expected to affect Bottler’s obligations under this Agreement. For this purpose, (a) the making of an election to be taxed as a Subchapter S corporation for federal income tax purposes, or termination of such an election, and/or (b) reincorporation in another state within the United States of America, will not be considered a change in Bottler’s legal form of organization and will not require Company’s consent.

17.4.

Bottler acknowledges that Company has a vested and legitimate interest in maintaining, promoting and safeguarding the overall performance, efficiency and integrity of Company's bottling, distribution and sales system. Bottler therefore covenants and agrees:

17.4.1.

Not to assign, transfer or pledge this Agreement or any interest herein, in whole or in part, whether voluntarily, involuntarily, or by operation of law (including by merger or liquidation), or sublicense its rights under this Agreement, in whole or in part, to any third party or parties, without the prior written consent of Company; and

17.4.2.

Not to delegate any material element of Bottler’s performance under this Agreement, in whole or in part, to any third party or parties without the prior written consent of Company.

17.5.

Notwithstanding Section 17.4, the following shall be expressly permitted hereunder:

17.5.1.

Bottler may, after Notice to Company, assign, transfer or pledge this Agreement or any interest herein, in whole or in part, or delegate any material element of Bottler's performance of this Agreement, in whole or in part, to any wholly-owned Affiliate of Bottler; provided that (a) any such Affiliate must agree in writing to be bound by and comply with the terms and conditions of this Agreement, and (b) any such assignment, transfer, pledge or delegation will not relieve Bottler of any of its obligations under this Agreement; and

17.5.2.

Bottler may engage third party contractors and service providers for the purpose of receiving services relating to non-core functions (e.g., back-office administrative services, human resources, payroll, information technology services and similar services); provided that (a) Bottler will retain full responsibility to Company for all of Bottler’s obligations under this Agreement; and (b) Bottler may not subcontract core functions (i.e., market and customer-facing functions) without the prior written consent of Company.

17.6.

Any attempt to take any actions prohibited by Sections 17.4 and 17.5 without Company’s prior written consent shall be void and shall be deemed to be a material breach of this Agreement.

17.7.

Bottler may not describe Company or Bottler’s relationship with Company in any prospectus, offering materials, or marketing materials used by or on behalf of Bottler in connection with

the issue, offer, sale, transfer, or exchange of any ownership interest in Bottler or any bonds, debentures or other evidence of indebtedness of Bottler, unless Bottler provides Company with such description at least five (5) Business Days prior to filing or use.  Company must provide any comments within three (3) Business Days following receipt of the materials from Bottler.  Except as otherwise provided by this Agreement in connection with a Change of Control or sale of the Business, Company shall not require Bottler to disclose the identity of prospective investors, bondholders or lenders or the terms, rates or conditions of the underlying agreements with such Persons.  Bottler will not be required to provide to Company any description that has been previously reviewed by Company.

18.

TERM OF AGREEMENT

18.1.

This Agreement will commence on the Effective Date and continue for an initial period of ten (10) years (the "Initial Term"), unless earlier terminated pursuant to the provisions of Section 19 (COMMERCIAL IMPRACTICABILITY), Section 20 (FORCE MAJEURE), Section 21 (TERMINATION FOR DEFINED EVENTS) or Section 22 (DEFICIENCY TERMINATION).  

18.2.

Bottler may elect not to renew this Agreement upon expiration of the Initial Term or any Additional Term by providing Company with Notice of its intention at least one (1) year prior to expiration of the Initial Term or any Additional Term, as the case may be.

18.3.

Unless Bottler has given Notice of its intention not to renew as provided in Section 18.2, or this Agreement has otherwise been earlier terminated as provided in Section 19 (COMMERCIAL IMPRACTICABILITY), Section 20 (FORCE MAJEURE), Section 21 (TERMINATION FOR DEFINED EVENTS) or Section 22 (DEFICIENCY TERMINATION), the then effective term of this Agreement will automatically renew for successive additional terms of ten (10) years each (each an “Additional Term”).

19.

COMMERCIAL IMPRACTICABILITY

19.1.

With respect to any one or more Covered Beverages and Related Products (the “Affected Products”) and the First-Line Territory or any portion thereof (the “Affected Territory”), as applicable,

19.1.1.

the obligation of Company (including any of its Affiliates) or Company Authorized Supplier to supply Affected Products to Bottler and Bottler’s obligation to purchase Affected ‎Products from Company, its Affiliates, or a Company Authorized Supplier and to market, promote, distribute, and ‎sell the Affected Products in accordance with the terms of this Agreement shall be ‎suspended during any period when there occurs a change in applicable laws, regulations or administrative measures (including any government ‎permission or authorization regarding customs, health or manufacturing, and further including the withdrawal of any government authorization required by any of the parties to ‎carry out the terms of this Agreement), or issuance of any judicial decree or order binding on any of the parties hereto, in each case in such a manner as to render unlawful or ‎commercially impracticable:

19.1.1.1.

the importation or exportation of any essential ingredients of the Affected Products that cannot be produced in ‎quantities sufficient to satisfy the demand therefor by existing Company

(including any of its Affiliates) or Company ‎Authorized Supplier facilities in the United States;

19.1.1.2.

the manufacture and distribution of Affected Products to Bottler; or

19.1.1.3.

Bottler’s marketing, promotion, distribution, and sale of Affected Products within the Affected Territory.

19.2.

To the extent that ‎Bottler is unable to perform its obligations as a consequence of any of the contingencies set forth in Section 19.1, and for the duration of such inability:

19.2.1.

Company (including any of its Affiliates) shall be relieved of their respective obligations under any Finished Goods Supply Agreement; and

19.2.2.

the determination of Bottler’s performance under Section 14.1 and Section 14.2 shall be made without regard to the Affected Products within the Affected Territory.   If any of the contingencies set forth in this Section 19 persists so that either party’s obligation to perform is suspended for a period of two (2) years or more, the other party may upon Notice terminate this Agreement and any Related Agreements with regard to the Affected Products and the Affected Territory, as applicable, without paying any compensation or other liability for damages (except as provided in Section 25).

20.

FORCE MAJEURE

20.1.

“Force Majeure Event” means any strike, blacklisting, boycott or sanctions imposed by a sovereign nation or supra-national organization of sovereign nations, however incurred; or any act of God, act of foreign enemies, embargo, quarantine, riot, insurrection, a declared or undeclared war, state of war or belligerency or hazard or danger incident thereto.

20.2.

Neither Company (including any of its Affiliates or any Company Authorized Supplier) nor Bottler shall be liable for or be subject to any claim for breach or termination as the result of a failure to perform any of their respective obligations under this Agreement if and to the extent that such failure is caused by or results from a Force Majeure Event; provided, however:

20.2.1.

The party claiming the excuse afforded by this Section 20 must use commercially reasonable efforts to comply with any excused obligations under this Agreement that are impaired by such Force Majeure Event; and

20.2.2.

If Bottler is the party claiming the excuse afforded by this Section 20:

20.2.2.1.

to the extent that Bottler is unable to remediate the effect on its ability to perform caused by such Force Majeure Event with respect to all or any portion of the First-Line Territory within three (3) months from the date of the occurrence of the Force Majeure Event, then,

20.2.2.1.1.

Company shall have the right (but not the obligation) upon not less than one (1) month prior Notice to suspend this Agreement and Related Agreements within the affected parts of the First-Line Territory (or the entire First-Line Territory to the extent affected by such event) during the period of time that such Force Majeure Event results in Bottler being unable to perform its obligations under this Agreement; and

20.2.2.1.2.

During the period of any such suspension, Company or any third party designated by Company shall have the right to market, promote, distribute, and sell Covered Beverages and Related Products, and otherwise exercise Bottler’s rights and perform services otherwise required of Bottler under this Agreement and Related Agreements within any such affected portion of the First-Line Territory, without any obligation to account to Bottler for profits from the distribution of Covered Beverages and Related Products in the First-Line Territory that are not distributed by Bottler.

20.2.2.2.

to the extent that Bottler is unable to remediate the effect on its ability to perform caused by such Force Majeure Event with respect to all or any portion of the First-Line Territory within two (2) years from the date of occurrence of the Force Majeure Event, Company shall have the right to terminate this Agreement and Related Agreements as to the affected portion of the First-Line Territory, subject to Bottler’s rights under Section 25.

21.

TERMINATION FOR DEFINED EVENTS

21.1.

Company may, at Company’s option, terminate this Agreement, subject to the requirements of Section 25, if any of the following events occur:

21.1.1.

An order for relief is entered with respect to Bottler under any Chapter of Title 11 of the United States Code, as amended;

21.1.2.

Bottler voluntarily commences any bankruptcy, insolvency, receivership, or assignment for the benefit of creditors proceeding, case, or suit or consents to such a proceeding, case or suit under the laws of any state, commonwealth or territory of the United States or any country, kingdom or commonwealth or sub-division thereof not governed by the United States;

21.1.3.

A petition, proceeding, case, complaint or suit for bankruptcy, insolvency, receivership, or assignment for the benefit of creditors, under the laws of any state, territory or commonwealth of the United States or any country, commonwealth or sub-division thereof or kingdom not governed by the United States, is filed against Bottler, and such a petition, proceeding, suit, complaint or

case is not dismissed within sixty (60) days after the commencement or filing of such a petition, proceeding, complaint, case or suit or the order of dismissal is appealed and stayed;

21.1.4.

Bottler makes an assignment for the benefit of creditors, deed of trust for the benefit of creditors or makes an arrangement or composition with creditors; a receiver or trustee for Bottler or for any interest in Bottler's business is appointed and such order or decree appointing the receiver or trustee is not vacated, dismissed or discharged within sixty (60) days after such appointment or such order or decree is appealed and stayed;

21.1.5.

Any of Bottler's equipment or facilities is subject to attachment, levy or other final process for more than twenty (20) days or any of its equipment or facilities is noticed for judicial or non-judicial foreclosure sale and such attachment, levy, process or sale would materially and adversely affect Bottler's ability to fulfill its obligations under this Agreement;

21.1.6.

Bottler becomes insolvent or ceases to conduct its operations relating to the Business in the normal course of business; or

21.1.7.

Any agreement authorizing the manufacture, packaging, distribution or sale of Beverages in authorized containers (as defined in such agreement) under the trademark “Coca-Cola” between Company and Bottler or their respective Affiliates that is listed on Schedule 35.1.4 is terminated by Company in accordance with provisions that permit termination due to Bottler’s breach or default, unless Company agrees in writing that this Section 21.1.7 will not be applied by Company to such termination.

22.

DEFICIENCY TERMINATION

22.1.

In addition to the events of default and remedy described in Section 21, Company may also terminate this Agreement, subject to the requirements of Section 23 and Section 25, if any of the following events of default occur:

22.1.1.

Bottler fails to make timely payment for Covered Beverages or Related Products, or of any other material debt owing to Company;

22.1.2.

The condition of the facilities or equipment used by Bottler in distributing or selling the Covered Beverages and Related Products fails to meet the sanitary standards reasonably established by Company;

22.1.3.

Bottler fails to handle the Covered Beverages or Related Products in strict conformity with such standards and instructions as Company may reasonably establish;

22.1.4.

Bottler or any Affiliate of Bottler engages in any of the activities prohibited under Section 13;

22.1.5.

Bottler fails to comply with its obligations under Section 14;

22.1.6.

A Change of Control occurs with respect to Bottler without the consent of Company;

22.1.7.

Any Disposition of any voting securities representing more than fifty percent (50%) of the voting power of any Bottler Subsidiary (other than to a wholly-owned Affiliate in connection with an internal corporate reorganization) is made without the consent of Company by Bottler or by any Bottler Subsidiary. “Bottler Subsidiary” means any Person that is Controlled, directly or indirectly, by Bottler, and that is a party, or Controls directly or indirectly a party, to an agreement with Company or any of its Affiliates regarding the distribution or sale of Covered Beverages or Related Products; or

22.1.8.

Bottler breaches in any material respect any of Bottler’s other material obligations under this Agreement.

22.2.

In any such event of default, Company may either exercise its right to terminate under this Section 22 (subject to Section 23 and Section 25), or pursue any rights and remedies (other than termination) against Bottler with respect to any such event of default.

23.

BOTTLER RIGHT TO CURE

23.1.

Upon the occurrence of any of the events of default enumerated in Section 22, Company will give Bottler Notice of default.

23.2.

Within sixty (60) days of receipt of such Notice, Bottler will provide Company with a written proposed corrective action plan (“Corrective Action Plan”). The Corrective Action Plan must provide for correction of all issues identified in the Notice of default within one (1) year or less from the date on which the Corrective Action Plan is provided to Company.

23.3.

Company will negotiate in good faith with Bottler the terms of the Corrective Action Plan.

23.3.1.

If Company and Bottler fail to agree on a Corrective Action Plan within sixty (60) days of Bottler’s tender of such plan, Bottler must cure the default described in the Notice of default within one (1) year of Bottler’s receipt of the Notice of default. If Bottler fails to cure the default described in the Notice of default within one (1) year of Bottler’s receipt of the Notice, the default will be deemed not to have been cured.

23.3.2.

If Company and Bottler timely agree on a Corrective Action Plan, but Bottler fails to implement the agreed Corrective Action Plan to Company’s reasonable satisfaction within the time period specified by the Corrective Action Plan, the default will be deemed not to have been cured.

23.4.

In the event of an uncured default under Section 23.3, Company may, by giving Bottler further Notice of termination, terminate this Agreement, suspend sales of Covered Beverages and Related Products to Bottler and require Bottler to cease marketing, promoting, distributing, and selling Covered Beverages and Related Products.  

23.5.

The provisions of this Section 23 (including any cure) will not apply to a default under Section 14.2, and will not limit Company’s right to pursue remedies under this Agreement on account

of Bottler’s default, other than (i) termination under Section 22, (ii) cessation of Company’s performance of its obligations under this Agreement, or (iii) rescission.

23.6.

In the case of a breach by Bottler or one of its Affiliates of its obligations under this Agreement (other than (a) a default under Section 14.2   or (b) a Product Quality Issue as defined in Section 23.7), such breach will be deemed to be cured for purposes of this Section 23 if Bottler (or its Affiliate) has terminated the acts or omissions described in such Notice of breach, and has taken reasonable steps under the circumstances to prevent the recurrence of such breach.

23.7.

“Product Quality Issue” means a breach of Section 15.1 or Section 15.2 caused by a product quality issue involving a Covered Beverage or Related Product that results from the gross negligence or willful misconduct of Bottler and that materially and adversely affects one or more of the Trademarks.

23.7.1.

In the case of a Product Quality Issue, Bottler will have a period of sixty (60) days from Bottler’s awareness of the issue within which to cure the default, including, at the instruction of Company, and at Bottler’s expense, by the prompt withdrawal from the market and destruction of any affected Finished Product.

23.7.2.

If the Product Quality Issue has not been cured within such sixty (60) day cure period, Company (or the applicable Company Authorized Supplier(s)) may suspend sales of Covered Beverages and Related Products to Bottler, and, during a second sixty (60) day cure period, Company may supply, or cause or permit others to supply, Covered Beverages and Related Products in the First-Line Territory.

23.7.3.

If such Product Quality Issue has not been cured during the second sixty (60) day cure period, then Company may terminate this Agreement by giving Bottler Notice of termination.

24.

BOTTLER’S RIGHTS AND OBLIGATIONS WITH RESPECT TO SALE OF ITS BUSINESS

24.1.

Defined Terms

24.1.1.

“Business” means Bottler’s aggregate business in all First-Line Territories under this Agreement and any other agreement directly and primarily related to the marketing, promotion, distribution, and sale of Covered Beverages and Related Products in such First-Line Territories.

24.1.1.1.

“Business” will also include any business conducted by Bottler and identified on Schedule 24.1 as an “Included Business,” including any Permitted Line of Business or Permitted Ancillary Business acquired or developed by Bottler after the Effective Date that the parties agree to identify as an “Included Business” through amendment to Schedule 24.1.

24.1.1.2.

“Business” will expressly exclude any business identified on Schedule 24.1 as an “Excluded Business.”

24.1.1.3.

“Business” will also expressly exclude any business that is not directly and primarily related to the marketing, promotion, distribution and sale of Covered Beverages and Related Products in such territories that is not identified on Schedule 24.1 as an “Included Business”, whether or not such business is identified on Schedule 24.1 as an “Excluded Business.”

24.1.2.

“Sale Transaction” means either (i) the sale, lease, transfer, conveyance or other disposition, in one transaction or a series of related transactions (including by way of merger, consolidation, recapitalization, reorganization or sale of securities of one or more of Bottler’s Subsidiaries), to any Person for value, of all or substantially all of the assets of the Business on a consolidated basis, or (ii) a transaction or series of transactions (including by way of merger, consolidation, recapitalization, reorganization or sale of securities by the holders of securities of Bottler) with any Person (other than a Permitted Transferee) the result of which is that the shareholders of Bottler immediately prior to such transaction are (after giving effect to such transaction) no longer, in the aggregate, the “beneficial owners” (as such term is defined in Rule 13d-3 and Rule 13d-5 promulgated under the Securities Exchange Act), directly or indirectly through one or more intermediaries, of more than fifty percent (50%) of the voting shares of Bottler on an as-converted, fully-diluted basis.

24.2.

Discussions with Company or Approved Potential Buyers

24.2.1.

If Bottler decides to sell, directly or indirectly, all or a majority interest in the Business, including as a result of a change in control or an unsolicited third party offer, Bottler will discuss the possible Sale Transaction exclusively with Company or Approved Potential Buyer(s) (except as provided in Section 24.2.2 or Section 24.4.3).  Any and all such discussions between Company and Bottler regarding a possible Sale Transaction shall be kept confidential, and shall not be binding on either party, and shall not be deemed to have triggered the commencement of the procedures for the sale of the Business described in Section 24.3 or Section 24.4.

24.2.2.

Once per calendar year and at any time following receipt by Bottler of a third party unsolicited bona fide offer or expression of interest regarding a Sale Transaction, Bottler may submit to Company in writing a list of potential buyers to whom Bottler may wish to sell Bottler’s Business (each, a “Potential Buyer”).  Bottler will submit the Potential Buyer list to Company’s most senior officer responsible for North America operations (with copies to each Company Notice recipient identified in Section 40.1.2) through registered or certified mail (return receipt requested) or another method of communication that requests acknowledgement of receipt by Company, and such Potential Buyer list shall be deemed received by Company upon Company’s acknowledgement of receipt (provided, that, upon such receipt, Company will be obligated to provide, and will provide, such confirmation).  In connection with Bottler’s preparation of a Potential Buyer list, Bottler may engage an investment banker (or other financial advisor) to solicit indications of interest from Potential Buyers, subject to

appropriate confidentiality obligations.  At Bottler’s request, Company will also cooperate with Bottler to identify Potential Buyers that are acceptable to both Bottler (in Bottler’s sole discretion) and Company (in Company’s sole discretion).

24.2.2.1.

Bottler will also furnish Company with such additional information regarding the Potential Buyer(s) that Company may reasonably request.

24.2.2.2.

A Potential Buyer on Bottler’s Potential Buyer list will be deemed approved by Company unless Company determines (in its sole discretion) that the Potential Buyer is not acceptable and provides Notice of that determination to Bottler during the Approval Period.

24.2.2.3.

The “Approval Period” means the sixty (60) day period following Company’s receipt of Bottler’s Potential Buyer list and any additional information reasonably requested by Company from Bottler regarding the Potential Buyers unless Bottler is requesting approval in response to an unsolicited bona fide offer from a Potential Buyer regarding a Sale Transaction in which case the period will be thirty (30) days following Company’s receipt of Bottler’s Potential Buyer List.

24.2.2.4.

An “Approved Potential Buyer” means a Potential Buyer approved by Company in writing or deemed approved by Company in accordance with Section 24.2.2.2.

24.3.

Sale of Business to Approved Potential Buyer

24.3.1.

At any time during the Term and from time to time, Bottler may (at Bottler’s sole discretion) provide Company with Notice that Bottler wishes to enter into a Sale Transaction with an Approved Potential Buyer (an “Approved Potential Buyer Sale Notice”).  The Approved Potential Buyer Sale Notice will include the details of the proposed Sale Transaction with the Approved Potential Buyer.  Bottler will deliver the Approved Potential Sale Notice in writing to Company’s Chief Financial Officer, with a copy to Company’s General Counsel.  Bottler’s delivery of an Approved Potential Buyer Sale Notice will not preclude Bottler from delivering an Exit Notice under Section 24.4.  

24.3.2.

Bottler may (at Bottler’s sole discretion) enter into a binding agreement for the Sale Transaction with the Approved Potential Buyer, on terms and conditions (including purchase price) mutually agreed by Bottler and the Approved Potential Buyer, within one hundred eighty (180) days following Bottler’s delivery of the Approved Potential Buyer Sale Notice to Company.

24.3.2.1.

If Bottler identified more than one (1) Approved Potential Buyer in its Approved Potential Buyer Sale Notice, then Bottler may engage in an auction process with such Approved Potential Buyers, and may (at Bottler’s discretion) enter into a binding

agreement for a Sale Transaction with the Approved Potential Buyer selected by Bottler within one hundred eighty (180) days following Bottler’s delivery of the Approved Potential Buyer Sale Notice to Company.  The consummation of a Sale Transaction with an Approved Potential Buyer as contemplated under Section 24.3.2 will not constitute a breach or default under this Agreement or any Related Agreement.

24.3.3.

If Bottler and an Approved Potential Buyer consummate the Sale Transaction as contemplated in Section 24.3.2, then the Business will continue to be bound by the terms and conditions of this Agreement, without modification.  If requested by Company, the Approved Potential Buyer will confirm in writing that the Business will continue to market, promote, distribute and sell Covered Beverages and Related Products in the First-Line Territory subject to, and in accordance with, the terms and conditions of this Agreement and the Related Agreements, without modification.  

24.3.4.

If Bottler and the Approved Potential Buyer do not enter into a binding agreement for a Sale Transaction within the one hundred eighty (180) day period following Bottler’s delivery of the Approved Potential Buyer Sale Notice, then Bottler will be required to re-submit an Approved Potential Buyer Sale Notice in accordance with Section 24.3.1 before entering into a Sale Transaction with an Approved Potential Buyer.

24.4.

Sale of Business without an Approved Potential Buyer

24.4.1.

At any time and from time to time during the Term, Bottler may, at Bottler’s sole discretion, provide Company with Notice that Bottler wishes to enter into a Sale Transaction, but that Bottler has not identified an Approved Potential Buyer or has not reached terms with an Approved Potential Buyer that are acceptable to Bottler (an “Exit Notice”).  Bottler’s delivery of an Exit Notice will not preclude Bottler from delivering an Approved Buyer Sale Notice and pursuing both alternatives at the same time.

24.4.1.1.

The Exit Notice will include the material terms and conditions (including price and form of consideration) of the proposed Sale Transaction by Bottler.  Bottler will deliver the Exit Notice in writing to Company’s Chief Financial Officer, with a copy to Company’s General Counsel.

24.4.1.2.

The Exit Notice will include the following unaudited written management information (to the extent that it is in Bottler’s possession or control and is ordinarily and customarily produced and used by Bottler for each of the three (3) year periods ending on the last day of the quarter preceding the date of the delivery of the Exit Notice): (a) revenues with respect to the Business for the relevant period then ended in both dollars and cases; (b) statements of income down to the contribution margin level for the Covered Beverages and Related Products

for the relevant period then ended; (c) most current management bills of cost for each of the Covered Beverages and Related Products; (d) a copy of each of the then currently effective and enforceable distribution agreements for distribution of the Covered Beverages and Related Products; (e) business plan volumes and strategic plans for the Business; and (f) material claims relating to the Business of which Bottler has knowledge.  All of the foregoing information is collectively referred to as the “Base Information”. Bottler will also provide such additional information (the “Additional Information”) as reasonably requested by Company and as Bottler and Company may agree is desirable to facilitate Company’s valuation of the Business.

24.4.1.3.

Bottler and Company will work together in good faith to negotiate the terms and conditions of a binding agreement under which Company or Company’s designee would acquire Bottler’s Business, including the purchase price for the Business.  If the parties cannot mutually agree upon the purchase price for the Business within one hundred twenty (120) days following Bottler’s delivery of the Exit Notice, then Bottler will notify Company in writing as to whether Bottler wishes to (i) terminate the process, or (ii) cause the value of the Business to be determined in accordance with the valuation process specified in Section 26 (the “Valuation Process”).  

24.4.1.4.

Once the value of the Business has been established either by mutual agreement of Bottler and Company, or through the Valuation Process, Bottler will have the right, in its sole discretion, to deliver Notice to Company that Bottler wishes to sell the Business to Company (or Company’s designee) at the agreed purchase price (or the purchase price established through the Valuation Process, as the case may be) (a “Company Sale Notice”).  The Company Sale Notice must be delivered by Bottler to Company, if at all, within sixty (60) days following the determination of the purchase price for the Business (by mutual agreement or through the Valuation Process, as the case may be).  The Company Sale Notice will constitute a binding offer by Bottler to sell the Business to Company or Company’s designee in accordance with the terms of this Section 24.4; provided that Bottler may withdraw such offer at any time prior to closing of such transaction, if and only if Bottler (a) reimburses Company for all third party out of pocket expenses incurred by Company in connection with the exercise by Bottler of its rights under this Section 24; and (b) exercises such right to withdraw an offer no more than once every three (3) years.

24.4.2.

If Bottler delivers a Company Sale Notice as contemplated above, then, within thirty (30) days following Company’s receipt of the Company Sale Notice, Company must elect (in Company’s sole discretion) either (1) to acquire the Business (or cause the Business to be acquired by Company’s designee) in accordance with this Section 24.4, or (2) to amend this Agreement as contemplated in Schedule 24.4.2.  Prior to the expiration of such thirty (30) day period, Company will provide Notice of its election to Bottler.  If Bottler provides Notice to Company that Company has failed to make an election under this Section 24.4.2 within the thirty (30) day period, and Company fails to deliver Notice of its election within ten (10) days following receipt of such notice from Bottler, then Company will be deemed to have elected to amend this Agreement as contemplated in Schedule 24.4.2.

24.4.2.1.

If Company delivers a Notice under Section 24.4.2 that Company (or Company’s designee) will acquire the Business, then Company or Company’s designee will acquire the Business for cash (unless otherwise mutually agreed) at the purchase price mutually agreed by Company (or Company’s designee) and Bottler, or, the purchase price established through the Valuation Process, as applicable.

24.4.2.2.

If Company delivers a Notice under Section 24.4.2 that Company (or Company’s designee) will acquire the Business, then Company will acquire the Business on the terms and conditions (other than purchase price) mutually agreed upon by Bottler and Company (or Company’s designee).  If Bottler and Company (or Company’s designee) are unable to agree on terms and conditions of sale (other than purchase price) within sixty (60) days following Company’s delivery of a Notice under Section 24.4.2 that Company (or Company’s designee) will acquire the Business, then Company or Company’s designee will acquire the Business on the terms and conditions specified in Schedule 24.4.1.  The failure to reach agreement on the terms and conditions (other than price) will in no event result in a deemed election to amend the terms of this Agreement. The purchase price for the Business will be paid in cash at closing, unless otherwise agreed by Bottler and Company (or Company’s designee).  

24.4.2.3.

Closing of the acquisition of the Business by Company or Company’s designee will occur within ten (10) Business Days following the receipt of all required consents and regulatory approvals (including expiration of applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act).

24.4.3.

If Company delivers a Notice under Section 24.4.2 that Company will amend this Agreement as contemplated in Schedule 24.4.2, or Company is deemed to have elected to amend this Agreement as contemplated in Schedule 24.4.2, then (1)

this Agreement will automatically be deemed amended as specified in Schedule 24.4.2 (and Bottler and Company will take whatever actions may be necessary or appropriate to document and confirm such amendments to this Agreement), (2) Company will reimburse Bottler for all third party out of pocket expenses incurred by Bottler in connection with the exercise by Bottler of its rights under this Section 24, and (3) Bottler may thereafter enter into a Sale Transaction with a third party selected by Bottler, in its sole discretion (and as to which Company will have no approval rights), on terms and conditions mutually agreed by Bottler and the third party buyer selected by Bottler. If Bottler does consummate the Sale Transaction, then the buyer will acquire the Business subject to the terms of this Agreement, as modified under Schedule 24.4.2.

24.5.

Each party shall act promptly and without delay in satisfying its obligations under this Section 24.

25.

COMPENSATION TO BOTTLER ON TERMINATION FOR COMMERCIAL IMPRACTICABILITY UNDER SECTION 19.2.2, FORCE MAJEURE UNDER SECTION 20.2.2.2, DEFINED EVENTS UNDER SECTION 21 OR DEFICIENCY TERMINATION UNDER SECTION 22

25.1.

If at any time during the Initial Term or any Additional Term, Company exercises its right to terminate this Agreement in accordance with Section 19.2.2, Section 20.2.2.2, Section 21, or Section 22, Company will send Notice that Company will acquire the Business in accordance with this Section 25 (a “Purchase Notice”).

25.2.

Upon receipt of a Purchase Notice from Company, except as provided in Section 25.2.1, Bottler shall sell the Business to Company (or Company’s designee) and Company (or its designee) shall purchase the Business from Bottler for cash (unless otherwise mutually agreed) at the price determined in accordance with the Valuation Process specified in Section 26 and on the other terms and conditions specified in Schedule 24.4.1.

25.2.1.

If this Agreement terminates under Section 22.1.4 (solely as a result of Bottler’s willful misconduct), Section 22.1.6, or Section 22.1.7, then Company will purchase the Business from Bottler for cash (unless otherwise mutually agreed) at a price equal to eighty-five percent (85%) of the price determined in accordance with the Valuation Process specified in Section 26.

25.3.

Closing of the acquisition of the Business by Company or its designee under this Section 25 will occur within ten (10) Business Days following the receipt of all required consents and regulatory approvals (including expiration of applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act) and after determination of the Business Value in accordance with the Valuation Process (if applicable).

25.4.

The acquisition agreement providing for the acquisition of Bottler’s Business by Company or its designee in accordance with Section 24 or this Section 25 will include mutual releases of claims (other than claims arising under the terms of such acquisition agreement).

25.4.1.

Without limiting the preceding sentence, amounts paid by Company (directly or through a Company Affiliate) or Company’s designee to Bottler as required under this Section 25 will be in lieu of, and in full satisfaction of, any claims whatsoever that Bottler may have against Company in connection with the

Covered Beverages or Related Products or Bottler’s Business, including any payment due to Bottler other than (a) any trade payables due in the ordinary course of business, (b) any other undisputed amounts then due and owing, (c) any indemnification, contribution, or other similar rights Bottler may have against Company with respect to a third party claim (including any claim by a Governmental Authority) arising out of any actual or threatened action, suit, proceeding or investigation brought against Bottler, (d) any post-closing adjustments provided for in acquisition agreements between Company (or any of its Affiliates) and Bottler (or any of its Affiliates) with respect to sub-bottling territory acquired from CCR (e.g., purchase price adjustments based on determination of the net book value of transferred assets as of closing), or (e) as otherwise may be agreed by Company and Bottler.

25.4.2.

The parties acknowledge and agree that the remedies at law of Company or Bottler for any actual or threatened breach of the covenants in Sections 24, 25 or 26 would be inadequate and that the non-breaching party will be entitled to specific performance of the covenants in Sections 24, 25 and 26, including entry of an ex parte, temporary restraining order in state or federal court, preliminary and permanent injunctive relief against acts or omissions in violation of  Sections 24, 25 or 26, or other appropriate judicial remedy, writ or order, in addition to any damages and legal expenses that the non-breaching party may be legally entitled to recover.

26.

VALUATION

26.1.

If Bottler decides to sell the Business as contemplated under Section 24 and Bottler and Company are unable to mutually agree upon a purchase price within the one hundred twenty (120) day negotiation period specified in Section 24.4.1.3, or if Company is to acquire the Business as contemplated under Section 25, then the purchase price for the Business will be established in accordance with this Section 26.

26.2.

Bottler and Company will each appoint a Valuation Expert within five (5) Business Days after the expiration of the applicable negotiation period under Section 24.4.1.3 (or after receipt by Bottler of a Purchase Notice from Company under Section 25.1 if applicable), and will instruct each Valuation Expert to provide its final valuation no later than sixty (60) days after such appointment.

26.2.1.

“Valuation Expert” means an independent and reputable valuation firm or investment banking firm of national standing, that (i) has had no business relationship of any nature (whether directly or through any of its Affiliates) with either Company or Bottler or their respective Affiliates in the twelve months prior to its selection, (ii) is not, directly or through any of its Affiliates, in then-current discussions with either Company or Bottler or any of their respective Affiliates regarding a proposed future engagement, and (iii) has no other conflict of interest or financial interest in the proposed transaction (other than receipt of its fee as discussed below).  No Valuation Expert will be permitted to receive a fee other than a fixed fee, which fee shall not be contingent on the closing of the transaction or calculated based on the Business Value.

26.2.2.

“Business Value” means the value of the Business as finally determined under the Valuation Process.

26.3.

Each Valuation Expert will perform a valuation of the Business.

26.4.

If the valuations differ by less than ten percent (10%) of the higher valuation, the average of the two valuations will be the value of the Business.  

26.5.

If the valuations differ by ten percent (10%) of the higher valuation or more, the Valuation Experts will appoint a third Valuation Expert who will value the Business and will be instructed to provide its final valuation no later than sixty (60) days after its appointment.  

26.5.1.

In this event, the value of the Business will be the average of the two valuations with the smallest difference in the reported value, unless one valuation is the average of the other two valuations, in which case such valuation will be the value of the Business (measured on an absolute basis).

26.6.

The Valuation Experts will be instructed to determine the fair value of the Business by determining the fair market value of the Business as if sold as a going concern, as between a willing buyer and a willing seller not under a compulsion to buy or sell in an arm’s-length transaction, taking into account all relevant factors, and using such methods as the Valuation Experts deem appropriate, subject to the specific instructions set forth in Schedule 26.  

26.7.

Each party will have the right to review all information and materials furnished by the other party to the Valuation Experts, and each party will cooperate in good faith to correct any errors in the information and materials provided by that party prior to submission to the Valuation Experts.

26.8.

If a third Valuation Expert is used, as contemplated above, the third Valuation Expert will not be provided access to the valuations performed by the first two Valuation Experts.

26.9.

The fees and expenses incurred in connection with the Valuation Process will be borne equally by Bottler and Company; provided, however, that if a third Valuation Expert is required under the foregoing provisions, then the party who appointed the Valuation Expert whose valuation differs more from the Business Value as finally determined (measured on an absolute basis) will be responsible for the fees and expenses of the third Valuation Expert.

27.

POST-EXPIRATION AND POST-TERMINATION OBLIGATIONS

27.1.

Upon the expiration without renewal or earlier termination of this Agreement and thereafter:

27.1.1.

Bottler must not distribute or sell the Covered Beverages or Related Products or make any use of the Trademarks, Finished Product or advertising, marketing or promotional material used or intended for use by Bottler in connection with the distribution and sale of the Covered Beverages or Related Products;

27.1.2.

Bottler must promptly eliminate all references to Company, the Covered Beverages, the Related Products and the Trademarks from the premises, delivery vehicles, vending machines, coolers and other equipment of Bottler and from all business stationery and all written, graphic, electromagnetic, digital or

other advertising, marketing or promotional material used or maintained by Bottler, and Bottler must not hold forth in any manner whatsoever that Bottler has any connection with Company, the Covered Beverages, the Related Products or the Trademarks; and

27.1.3.

All rights and obligations under this Agreement, whether specifically set out or whether accrued or accruing by use, conduct or otherwise, will expire, cease and end, excepting (a) all provisions concerning the obligations of Bottler as set forth in Sections 24 through 27, (b) all provisions concerning the obligations of Company as set forth in Sections 24 through 26, (c) all claims for amounts due and payable by one party to the other under the terms of this Agreement as of the date of termination, and (d) each of Sections 28 through 44, all of which will continue in full force and effect, provided always that this provision will not affect any rights either party may have against the other in respect of any claim for nonpayment of any debt or account owed by Bottler to Company or Company Authorized Suppliers or by Company or any Authorized Company Authorized Suppliers to Bottler.

28.

COMPANY’S RIGHT OF ASSIGNMENT

29.

LITIGATION

29.1.

Company reserves and has the sole and exclusive right and responsibility to institute any civil, administrative or criminal proceedings or actions, and generally to take or seek any available legal remedy it deems desirable, for the protection of its reputation, the Trademarks, and other intellectual property rights, as well as for the Covered Beverages and Related Products, and to defend any action affecting these matters.  

29.2.

At the request of Company, Bottler will render reasonable assistance in any such action, including, if requested to do so in the sole discretion of Company, allowing Bottler to be named as a party to such action. However, no financial burden will be imposed on Bottler for rendering such assistance.

29.3.

Bottler shall not have any claim against Company as a result of such proceedings or action or for any failure to institute or defend such proceedings or action.

29.4.

Bottler must promptly notify Company of any litigation or proceedings instituted or threatened against Bottler affecting these matters.

29.5.

Bottler must not institute any legal or administrative proceedings against any third party that may affect the interests of Company in the Trademarks without the prior written consent of Company, which consent Company may grant or withhold in its sole discretion.

29.6.

Bottler will consult with Company on all product liability claims, proceedings or actions brought against Bottler in connection with the Covered Beverages or Related Products and will take such action with respect to the defense of any such claim or lawsuit as Company may

reasonably request in order to protect the interests of Company in the Covered Beverages and Related Products or the goodwill associated with the Trademarks.

30.

INDEMNIFICATION

30.1.

Company will indemnify, protect, defend and hold harmless each of Bottler and its Affiliates, and their respective directors, officers, employees, shareholders, owners and agents, from and against all claims, liabilities, losses, damages, injuries, demands, actions, causes of action, suits, proceedings, judgments and expenses, including reasonable attorneys' fees, court costs and other legal expenses (collectively, “Losses”), to the extent arising from, connected with or attributable to: (a) Company’s or CCR’s manufacture or handling of the Covered Beverages or Related Products; (b) the breach by Company of any provision this Agreement; (c) Bottler’s use, in accordance with this Agreement and Company guidelines respecting use of Company intellectual property, of the Trademarks or of package labels, POS materials and other local marketing and merchandising materials supplied by Company in conjunction with the distribution and sale of the Covered Beverages or Related Products; or (d) the inaccuracy of any warranty or representation made by Company herein or in connection herewith. None of the above indemnities shall require Company to indemnify, protect, defend or hold harmless any indemnitee with respect to any claim to the extent such claim arises from, is connected with or is attributable to the negligence or willful misconduct of such indemnitee.

30.2.

Bottler will indemnify, protect, defend and hold harmless each of Company and its Affiliates, and their respective directors, officers, employees, shareholders, owners and agents, from and against all Losses to the extent arising from, connected with or attributable to: (a) Bottler’s handling, distribution, promotion, marketing, and sale of the Covered Beverages or Related Products (except to the extent caused by Company’s manufacture or handling of the Covered Beverages or Related Products); (b) the breach by Bottler of any provision of this Agreement; or (c) the inaccuracy of any warranty or representation made by Bottler herein or in connection herewith. None of the above indemnities shall require Bottler to indemnify, protect, defend or hold harmless any indemnitee with respect to any claim to the extent such claim arises from, is connected with or is attributable to the negligence or willful misconduct of such indemnitee.  

30.3.

Neither party will be obligated under this Section 30 to indemnify the other party for Losses consisting of lost profits or revenues, loss of use, or similar economic loss, or for any indirect, special, incidental, consequential or similar damages (“Consequential Damages”) arising out of or in connection with the performance or non-performance of this Agreement (except to the extent that an indemnified third party claim asserted against a party includes Consequential Damages).

31.

BOTTLER’S INSURANCE

32.

LIMITATION ON BOTTLER REPRESENTATIONS OR DISCLOSURES REGARDING COVERED BEVERAGES OR RELATED PRODUCTS

33.

INCIDENT MANAGEMENT

33.1.

Company and Bottler recognize that incidents may arise that can threaten the reputation and business of Bottler and/or negatively affect the good name, reputation and image of Company and the Trademarks.  

33.2.

In order to address such incidents, including any questions of quality of the Covered Beverages or Related Products that may occur, Bottler will designate and organize an incident management team and inform Company of the members of such team.  

33.3.

Bottler further agrees to cooperate fully with Company and such third parties as Company may designate and coordinate all efforts to address and resolve any such incident consistent with procedures for crisis management that may be issued to Bottler by Company from time to time.  

34.

SEVERABILITY

35.

AMENDMENT AND RESTATEMENT OF CERTAIN PRIOR CONTRACTS, MERGER, AND REQUIREMENTS FOR MODIFICATION

35.1.

As to all matters and things herein mentioned, the parties agree:

35.1.1.

The existing bottle contracts between Company and its Affiliates and Bottler and its Affiliates, including those contracts identified on Exhibit D, are hereby amended, restated and superseded in their entirety, and all rights, duties and obligations of Company and Bottler regarding the Trademarks and the

manufacture, packaging, distribution and sale of the Covered Beverages and Related Products shall be determined under this Agreement, without regard to the terms of any prior agreement and without regard to any prior course of conduct between the parties (the parties acknowledge that any existing bottle contract between Company and Bottler that is not listed on Exhibit D is nevertheless superseded hereby), except as specifically provided in Section 35.1.4.

35.1.2.

This Agreement sets forth the entire agreement between Company and Bottler with respect to the subject matter hereof, and all prior understandings, commitments or agreements relating to such matters between the parties or their predecessors-in-interest are of no force or effect and are cancelled hereby, except as specifically provided in Section 35.1.4.

35.1.3.

Any waiver, amendment or modification of this Agreement or any of its provisions, and any consents given under this Agreement shall not be binding upon Bottler, CCR or Company unless made in writing, signed by an officer or other duly qualified and authorized representative of company that it purports to bind.

35.1.4.

Section 35.1.1 and Section 35.1.2 are not intended to affect in any way the rights and obligations of Bottler (or any of its Affiliates) or Company (or any of its Affiliates) under the agreements listed in Schedule 35.1.4.

36.

NO WAIVER

37.

NATURE OF AGREEMENT AND RELATIONSHIP OF THE PARTIES

37.1.

Bottler is an independent contractor and is not an agent of, or a partner or joint venturer with, Company.  

37.2.

Each of Company, on the one hand, and Bottler, on the other hand, agree that it will neither represent, nor allow itself to be held out as an agent of, or partner or joint venturer with the other (including any of its Affiliates).

37.3.

Bottler and Company do not intend to create, and this Agreement shall not be construed to create, a partnership, joint venture, agency, or any form of fiduciary relationship.  Each party covenants and agrees never to assert that a partnership, joint venture or fiduciary relationship exists or has been created under or in connection with this Agreement and the Related Agreements.  There is no partnership, joint venture, agency, or any form of fiduciary relationship existing between Bottler and Company, but if it there is determined or found to be a partnership, joint venture, or agency, then Bottler and Company expressly disclaim all fiduciary duties that might otherwise exist under applicable law.

37.4.

Nothing in this Agreement, express or implied, is intended or shall be construed to give any Person, other than the parties to this Agreement and their successors and permitted assigns, any legal or equitable right, remedy or claim under or in respect of any agreement or any provision contained in this Agreement. This Agreement does not, and is not intended to, confer any rights or remedies upon any Person other than Bottler and Company.

38.

HEADINGS AND OTHER MATTERS

38.1.

The headings herein are solely for the convenience of the parties and shall not affect the interpretation of this Agreement.  

38.2.

As used in this Agreement, the phrase “including” means “including, without limitation” in each instance.  

38.3.

References in this Agreement to Sections are to the respective Sections of this Agreement, and references to Exhibits and Schedules are to the respective Exhibits and Schedules to this Agreement as they may be amended from time to time.

39.

EXECUTION IN MULTIPLE COUNTERPARTS

40.

NOTICE AND ACKNOWLEDGEMENT

40.1.

Notices.

40.1.1.

Requirement of a Writing and Permitted Methods of Delivery.  Each party giving or making any notice, request, demand or other communication (each, a “Notice”) pursuant to this Agreement must give the Notice in writing and use one of the following methods of delivery, each of which for purposes of this Agreement is a writing:

40.1.1.1.

Personal delivery;

40.1.1.2.

Registered or Certified Mail, in each case, return receipt requested and postage prepaid;

40.1.1.3.

Nationally recognized overnight courier, with all fees prepaid; or

40.1.1.4.

E-mail (followed by delivery of an original by another delivery method provided for in this Section).

40.1.2.

Addressees and Addresses.  Each party giving a Notice must address the Notice to the appropriate person at the receiving party (the “Addressee”) at the address listed below or to another Addressee or at another address designated by a party in a Notice pursuant to this Section.

40.1.3.

Effectiveness of a Notice.  Except as specifically provided elsewhere in this Agreement, a Notice is effective only if the party giving or making the Notice has complied with Sections 40.1.1 and 40.1.2 and if the Addressee has received the Notice.  A Notice is deemed to have been received as follows:

40.1.3.1.

If a Notice is delivered in person, when delivered to the Addressee.

40.1.3.2.

If delivered by Registered or Certified Mail, upon receipt by Addressee, as indicated by the date on the signed receipt.

40.1.3.3.

If delivered by nationally recognized overnight courier service, one Business Day after deposit with such courier service.

40.1.3.4.

If sent by e-mail, when sent (if followed promptly by delivery of an original by another delivery method provided for in this Section).

40.1.3.5.

If the Addressee rejects or otherwise refuses to accept the Notice, or if the Notice cannot be delivered because of a change in address for which no Notice was given, then upon the rejection, refusal or inability to deliver.

40.1.3.6.

Despite the other clauses of this Section 40.1.3, if any Notice is received after 5:00 p.m. on a Business Day where the Addressee is located, or on a day that is not a Business Day where the Addressee is located, then the Notice is deemed received at 9:00 a.m. on the next Business Day where the Addressee is located.

40.2.

If Bottler’s signature or acknowledgment is required or requested with respect to any document in connection with this Agreement and any employee or representative authorized by Bottler “clicks” in the appropriate space on the website designated by Company or takes such other action as may be indicated by Company, Bottler shall be deemed to have signed or acknowledged the document to the same extent and with the same effect as if Bottler had signed the document manually; provided, however, that no such signature or acknowledgment shall amend or vary the terms and conditions of this Agreement.  

40.3.

Bottler acknowledges and agrees that Bottler has the ability and knowledge to print information delivered to Bottler electronically, or otherwise knows how to store that information in a way that ensures that it remains accessible to Bottler in an unchanged form.

41.

CHOICE OF LAW AND VENUE

41.1.

This Agreement shall be interpreted, construed and governed by and in accordance with the laws of the State of Georgia, United States of America, without giving effect to any applicable principles of choice or conflict of laws, as to contract formation, construction and interpretation issues, and the federal trademark laws of the United States of America as to trademark matters.

41.2.

The parties agree that any lawsuit commenced in connection with, or in relation to, this Agreement must be brought in a United States District Court, if there is any basis for federal court jurisdiction.  If the party bringing such action reasonably concludes that federal court jurisdiction does not exist, then the party may commence such action in any court of competent jurisdiction.

42.

CONFIDENTIALITY

42.1.

For purposes hereof:

42.1.1.

“Confidential Business Information” means any valuable, secret business information, other than Trade Secrets, that a Disclosing Party designates or identifies as confidential at the time of disclosure or is by its nature recognizable as confidential information to a reasonably prudent person with knowledge of the Disclosing Party’s business and industry. Confidential Business Information includes any confidential business information provided to Disclosing Party by any third party that the Disclosing Party is obligated to hold in confidence as confidential business information.

42.1.2.

“Disclosing Party” means the party disclosing any Proprietary Information under this Agreement, whether such party is Bottler or Company or any of their respective Affiliates and whether such disclosure is directly from the Disclosing Party or through the Disclosing Party’s employees or agents.

42.1.3.

“Proprietary Information” means Trade Secrets, Confidential Business Information, and any other information or materials that in whole or in part include or are developed or based on any Trade Secrets or Confidential Business Information.  Proprietary Information does not include any information that: (a) was in the Receiving Party’s possession without restriction as to confidentiality, before receipt from the Disclosing Party; (b) is or becomes a matter of public knowledge through no breach of agreement or other fault of the Receiving Party; (c) is rightfully received by the Receiving Party from a third party without a duty of confidentiality; (d) is disclosed by the Disclosing Party to a third party without a duty of confidentiality on the third party; (e) is independently developed by the Receiving Party without regard to the Proprietary Information of the Disclosing Party; or (f) is disclosed by the Receiving Party with the Disclosing Party’s prior written approval.

42.1.4.

“Receiving Party” means the party receiving any Proprietary Information under this Agreement, whether such party is Bottler or Company or their respective Affiliates and whether such disclosure is received directly or through the Receiving Party’s employees or agents.

42.1.5.

“Trade Secrets” mean trade secrets of a Disclosing Party as defined under applicable law, as amended from time to time, including, without regard to form, technical or non-technical data, a formula, a pattern, a compilation, a program, a software program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, non-public forecasts, studies, projections, analyses, all customer data of any kind, or a list of actual or

potential customers or suppliers, business and contractual relationships, or any information similar to the foregoing that: (a) derives economic value, actual or potential, from not being generally known and not being readily ascertainable by proper means to other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.  Trade Secrets include any trade secret information provided to Disclosing Party by any third party that the Disclosing Party is obligated to hold in confidence as a trade secret.

42.2.

In the performance of this Agreement, each party may disclose to the other party certain Proprietary Information.  The Proprietary Information of the Disclosing Party will remain the sole and exclusive property of the Disclosing Party or a third party providing such information to the Disclosing Party.  The disclosure of the Proprietary Information to the Receiving Party does not confer upon the Receiving Party any license, interest, or right of any kind in or to the Proprietary Information, except as expressly provided under this Agreement.  

42.3.

At all times and notwithstanding any termination or expiration of this Agreement or any amendment hereto, the Receiving Party agrees that it will hold in strict confidence and not disclose to any third party the Proprietary Information of the Disclosing Party, except as approved in writing by the Disclosing Party.  The Receiving Party will only permit access to the Proprietary Information of the Disclosing Party to those of its or its Affiliates’ employees or authorized representatives having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement (including external auditors, attorneys and consultants).  

42.4.

The Receiving Party will be responsible to the Disclosing Party for any third party’s use and disclosure of the Proprietary Information that the Receiving Party provides to such third party in accordance with this Agreement.  The Receiving Party will use at least the same degree of care it would use to protect its own Proprietary Information of like importance, but in any case with no less than a reasonable degree of care, including maintaining information security standards specific to such information as set forth in this Agreement.  

42.5.

If the Receiving Party is required by a Governmental Authority or applicable law to disclose any of the Proprietary Information of the Disclosing Party, the Receiving Party will (a) first give Notice of such required disclosure to the Disclosing Party (to the extent permitted by applicable law), (b) if requested by the Disclosing Party, use reasonable efforts to obtain a protective order requiring that the Proprietary Information to be disclosed be used only for the purposes for which disclosure is required, (c) if requested by the Disclosing Party, take reasonable steps to allow the Disclosing Party to seek to protect the confidentiality of the Proprietary Information required to be disclosed, and (d) disclose only that part of the Proprietary Information that, after consultation with its legal counsel, it determines that it is required to disclose.

42.6.

Each Party will immediately notify the other Party in writing upon discovery of any loss or unauthorized use or disclosure of the Proprietary Information of the other Party.

42.7.

The Receiving Party will not reproduce the Disclosing Party’s Proprietary Information in any form except as required to accomplish the intent of this Agreement.  Any reproduction of any Proprietary Information by the Receiving Party will remain the property of the Disclosing

Party and must contain any and all confidential or proprietary Notices or legends that appear on the original, unless otherwise authorized in writing by the Disclosing Party.

42.8.

Neither Party will communicate any information to the other Party in violation of the proprietary rights of any third party.

42.9.

Upon the earlier of termination of this Agreement, written request of the Disclosing Party, or when no longer needed by the Receiving Party for fulfillment of its obligations under this Agreement, the Receiving Party will, if requested by the Disclosing Party,  either: (a) promptly return to the Disclosing Party all documents and other tangible materials representing the Disclosing Party’s Proprietary Information, and all copies thereof in its possession or control, if any; or (b) destroy all tangible copies of the Disclosing Party’s Proprietary Information in its possession or control, if any, in each case, except to the extent that such action would violate applicable regulatory or legal requirements.  Each party’s counsel may retain one copy of documents and communications between the Parties as necessary for archival purposes or regulatory purposes.

43.

ACTIVE AND COMPLETE ARMS LENGTH NEGOTIATIONS

44.

RESERVATION OF RIGHTS