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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

VITAL PHARMACEUTICALS, INC., d/b/a 

VPX SPORTS, 

Plaintiff,

v. Case No. ___________________

HENSLEY BEVERAGE COMPANY,

Defendant.

COMPLAINT FOR DECLARATORY JUDGMENT

Plaintiff, Vital Pharmaceuticals, Inc., d/b/a VPX Sports (“VPX” or “Plaintiff”), sues

Defendant, Hensley Beverage Company (“Hensley” or “Defendant”), and alleges:

NATURE OF THIS ACTION

1. This action arises out of different wholesale beverage distribution relationships for 

the distribution of different branded products subject to different rights; some governed by a 

written contract and others intentionally excluded from any written contract. VPX manufactures 

and sells energy drinks under various brands, including among others, Redline®, Black Pearl®, 

Meltdown®, and Protein Rush®. VPX also manufactures and sells energy drinks under its 

separate BANG® brand. 

2. In 2010, years before the BANG®-branded products were first nationally launched 

in 2012, Defendant entered into a written contract with VPX that specifically and only governs 

Defendant’s distribution of REDLINE® RTD, REDLINE XTREME®, REDLINE PRINCESS®, 

BLACK PEARL®, REDLINE POWER RUSH®, MELTDOWN® and PROTEIN RUSHTM

(collectively, the “Contract Products”). The 2010 written contract contains a buyout provision that 

expressly applies, again, specifically and only to the Contract Products. 

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3. Subsequently and separately starting in or around 2014, VPX allowed Defendant 

to also distribute certain of VPX’s BANG® products without a written contract. Defendant has

admitted that it has not entered into any written contract with VPX governing Defendant’s 

distribution of BANG® products. VPX is now terminating Defendant’s non-contractual rights to 

distribute BANG® products, but VPX is not terminating Defendant’s contractual rights to 

distribute the Contract Products. Despite not having a contract for the distribution of BANG® 

products, Defendant contends it is somehow entitled to a buyout for BANG® products under the 

separate 2010 written contract that applies solely to the distribution of the Contract Products.

4. VPX seeks a declaration of the parties’ rights and obligations under the March 3, 

2010 Distributor Agreement (“2010 Agreement”), including a declaration that: (i) the 2010 

Agreement is inapplicable to BANG® products; (ii) VPX’s right to terminate Defendant as its 

distributor for BANG® products is not governed by the 2010 Agreement; (iii) the 2010 Agreement 

is expressly limited to the Contract Products, i.e., REDLINE® RTD, REDLINE XTREME®, 

REDLINE PRINCESS®, BLACK PEARL®, REDLINE POWER RUSH®, MELTDOWN® and 

PROTEIN RUSHTM; (iv) the 2010 Agreement has never been amended to add BANG® products; 

(v) BANG® products were distributed by Defendant without a written contract and only 

commercially reasonable notice of termination was required before VPX could terminate 

Defendant as its distributor for BANG® products; and (vi) Defendant’s right to distribute BANG®

products terminates and expires effective May 27, 2020, following the thirty (30) day notice period 

extended by VPX on April 27, 2020.

THE PARTIES

5. VPX is a Florida corporation with its principal office located at 1600 N. Park Drive, 

Weston, FL 33326, and is therefore a citizen of the state of Florida. 

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6. Hensley is an Arizona corporation with its principal place of business located at 

4201 North 45th Avenue, Phoenix, Arizona, and is therefore a citizen of the State of Arizona.

JURISDICTION AND VENUE

7. This is an action for declaratory judgment pursuant to the Federal Declaratory 

Judgment Act, codified at 28 U.S.C. § 2201, et seq.

8. This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. 

§§ 1331 and 1332. The parties to this action are diverse and the amount in controversy exceeds 

$75,000.00 because Defendant claims to be owed in excess of $5,000,000 as a result of VPX’s

decision to terminate Defendant’s distribution of BANG® branded products.

9. Venue is proper in this Court because, as part of the 2010 Agreement, Defendant 

contractually agreed Florida law shall govern all issues relating to the 2010 Agreement and 

irrevocably agreed any legal action, suit, or proceeding arising out of or in connection with the 

2010 Agreement, transactions contemplated thereby, or disputes relating thereto, shall be brought 

exclusively in the State or Federal courts located in Broward County, Florida. Defendant expressly 

waived any jurisdictional objections to litigating in this Court. See Exhibit A, ¶¶ 4.2 and 4.3.

BACKGROUND FACTS

10. VPX is a manufacturer of fitness-focused nutritional supplements and energy 

drinks, which have been sold over time under various brands such as REDLINE®, BLACK 

PEARL®, MELTDOWN®, PROTEIN RUSHTM, and, most recently for purposes of this action, 

BANG®. Each VPX product brand is made up of a variety of energy drink products.

11. VPX launched the BANG® brand in 2012. The other brands identified above were 

launched before 2010.

12. VPX sells its products internationally and nationwide. To do so, it relies in part on

independent wholesale distributors to sell and distribute its products to retail resellers.

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13. On March 3, 2010, VPX and Defendant executed the 2010 Agreement whereby 

Defendant agreed to serve as VPX’s wholesale distributor for the Contract Products in Maricopa, 

Yavapai, and Pinal Counties, in the state of Arizona. A true and accurate copy of the 2010 

Agreement is attached hereto as Exhibit A.

14. Section 1.1 of the 2010 Agreement expressly limits the rights and obligations to 

specific products that do not include the BANG® branded products: “This Agreement, including, 

without limitation, any right of exclusive distribution within a given territory, applies to the 

following products: Redline® RTD, Redline Xtreme®, Redline Princess®, Black Pearl®, Redline 

Power Rush®, Meltdown® and Protein RushTM.” Exhibit A, §1.1 (emphasis added).

15. Following the BANG® brand’s national launch in 2012, VPX authorized and began 

using Defendant in or around 2014 as the distributor of certain BANG® branded products in 

Maricopa, Yavapai, and Pinal Counties in Arizona.

16. Because BANG® was an entirely new brand with unique market potential, VPX did 

not offer Defendant a written contract to distribute BANG® products, and, thereafter, the parties 

did not enter into any written agreement governing the distribution of BANG® products. Likewise, 

VPX has repeatedly refused to amend the 2010 Agreement to incorporate or add the BANG®

branded products based on a lack of mutual agreement regarding material terms unique to the 

BANG® brand, including exclusivity.

17. Indeed, VPX has consistently rejected Defendant’s requests to add the BANG®

brand to the 2010 Agreement given, among other things, Defendant’s insistence upon also selling 

competitive products in the same category as BANG®, such as Xyience energy drink products.

18. For example, in July 2018, Andrew McCain, Defendant’s Chief Executive Officer, 

wrote to VPX’s Executive Vice President of Sales, Gene Bukovi, conceding the lack of mutual 

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agreement on BANG® products and seeking to add this distinct brand to the parties’ existing (or 

“current”) 2010 Agreement:

I am happy to speak with you or Jack but I want to make clear that we are not 

interested or trying to change any contract. I’m not sure what is being asked of 

you by our team, but the fact of the matter is that Bang is not included in our 

current contract. We want to add it, that’s it.

A true and accurate copy of the July 10, 2018 email exchange is attached as Exhibit B. (Emphasis 

added).

19. That same date, Mr. Bukovi, on behalf of VPX, promptly responded declining to 

add the “totally different” BANG® products to the 2010 Agreement:

I have no problem having a conversation. We are not going [to] (sic) add Bang to 

the current contract you have. ... Bang is at a totally different level and we have 

taken a position that requires exclusivity. We want 100% focus. ....

Id. (Emphasis added).

20. At all times since Defendant first started distributing BANG® products in or around 

2014, Defendant knowingly distributed BANG® products without any written contract or 

amendment to the 2010 Agreement.

21. Defendant has been in business since 1955, employs over 1200 employees, 

distributes over 2500 beverages, and holds itself out as one of the largest family owned and 

operated beverage distributors in the nation. Such a commercial entity surely knew throughout the 

relationship that the BANG® products were sold without any contract and were not subject to the 

2010 Agreement governing different products (and, indeed, has affirmatively acknowledged this 

fact as noted above). 

22. Over the course of the years, the parties have discussed a new agreement that would 

govern the distribution of BANG® and other emerging brands offered by VPX but no agreement

has ever been reached or executed.

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23. On April 27, 2020, VPX sent Defendant formal written notice that upon thirty (30) 

days expiration, its right to distribute BANG® products would be terminated and any continued 

relationship between the parties, if Defendant wished to continue distributing the existing Contract 

Products, would be governed by a new Emerging Brands Agreement. A true and accurate copy of 

the April 27, 2020 letter is attached as Exhibit C.

24. On April 30, 2020, Defendant responded claiming that, despite years of admissions 

that it had no contract for BANG® products, it now contends that “Hensley’s distribution rights 

under the 2010 Agreement have been expanded to include BANG® products.” A true and accurate 

copy of the April 30, 2020 letter is attached hereto as Exhibit D.

25. On May 17, 2020, Defendant’s CEO again demanded a termination buyout 

payment, claiming it is owed over $5,000,000 for its distribution of BANG® products, the 

calculation of which is based in the buyout terms contained in § 3.2 of the 2010 Agreement. In the 

same email, Defendant acknowledged its intention to continue distributing REDLINE® products 

under the 2010 Agreement, and threatened to sue VPX if it refuses to pay for its termination of 

any rights to distribute BANG® products. A true and accurate copy of the May 17, 2020 email is 

attached hereto as Exhibit E.

COUNT ONE: DECLARATORY JUDGMENT

26. Plaintiff realleges and incorporates herein by reference the allegations contained in 

paragraphs 1 through 25 above.

27. An actual controversy exists as to whether: (a) the 2010 Agreement is applicable to 

BANG® products; (b) VPX’s right to terminate Defendant as its distributor for BANG® products 

is governed by the 2010 Agreement; (c) the 2010 Agreement is expressly limited to the Contract 

Products; (d) the 2010 Agreement has ever been amended to add BANG® products; (e) BANG®

products were distributed by Defendant without a written contract and only commercially 

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reasonable notice of termination was required before VPX could terminate Defendant as its 

distributor for BANG® products; and (f) Defendant’s right to distribute BANG® products 

terminates and expires effective May 27, 2020, following the thirty (30) day notice period extended 

by VPX on April 27, 2020.

28. VPX desires a judicial determination of its right to terminate the distribution 

relationship for BANG® products and that its termination is effective May 27, 2020.

29. A judicial declaration is necessary and appropriate at this time under the 

circumstances in order that VPX may ascertain and understand its rights and obligations, as well 

as the rights of Defendant with respect to the 2010 Agreement and its distribution of BANG®

products since Defendant has refused to recognize VPX’s termination and threatened to bring suit 

for damages if not paid a buyout pursuant to § 3.2 of the 2010 Agreement.

30. A judicial determination at this time will lessen the financial and other burdens 

incurred by VPX and correct Defendant’s flawed and disingenuous contentions about the parties’

rights and duties.

31. Pursuant to 28 U.S.C. § 2201, this Court is authorized to adjudicate and decide the 

parties’ respective rights and obligations and to determine, under Florida law, whether the 2010 

Agreement applies to the distribution of BANG® products, to determine the parties’ respective 

rights and obligations if the court finds the 2010 Agreement does not apply, and to determine 

whether VPX rightfully and lawfully terminated Defendant’s distribution relationship for BANG®

products upon reasonable notice provided on April 27, 2020.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, Vital Pharmaceuticals, Inc., d/b/a VPX Sports, respectfully 

requests judgment and relief against Defendant, Hensley Beverage Company, as follows:

A. A declaration by this Court finding:

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i. The 2010 Agreement does not apply to Defendant’s distribution 

relationship with VPX for the sale of BANG® products;

ii. VPX and Defendant did not enter any written agreement that governs 

Defendant’s rights to distribute BANG® products; and

iii. VPX rightfully and lawfully terminated the distribution relationship with 

Defendant for the sale of BANG® products and Defendant’s rights terminate 

and expire on May 27, 2020.

B. A final judgment awarding Plaintiff, Vital Pharmaceuticals, Inc., d/b/a VPX Sports,

such other and further relief as the Court deems necessary and just.

Dated: May 22, 2020

/s/Zachary S. Foster

Zachary S. Foster

Florida Bar No. 111980

QUARLES & BRADY LLP

101 E. Kennedy Blvd., 

Suite 3400 

Tampa, Florida 33602

Telephone: (813) 387-0300

Fax: (813) 387-1800

Zachary.Foster@quarles.com

and

Francis Massabki

Florida Bar No. 687901

Vital Pharmaceuticals, Inc.

1600 North Park Drive

Weston, FL 33326

Telephone: (954) 641-0570

Fax: (954) 389-6254

frank.massabki@vpxsports.com

Attorneys for Plaintiff

Vital Pharmaceuticals, Inc.

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