**Exhibit 10.2**

**MASTER BOTTLECONTRACT**

THIS AGREEMENT, (this “Agreement”) effective as of May 28, 1999 is made and entered into by and between THE COCA-COLA COMPANY, a corporation organized andexisting under the laws of the State of Delaware having its principal place of business in Atlanta, Georgia (the “Company”), and SUBC, INC. a corporation organized and existing under the laws of the State of Delaware having its principalplace of business in Sumter, South Carolina (the “Bottler”).

 

**WITNESSETH**

WHEREAS

A.       The Company manufactures and sells, or authorizes others to manufacture and sell, the soft drinks identified on Schedule A (as modified from time to time under paragraphs 21 and 22, the“Beverages”), the concentrates for the Beverages (the “Concentrates”), and the syrups prepared from the Concentrates (the “Syrups’), the formulas for all of which constitute trade secrets owned by theCompany;

B.        The Company is the owner of the trademarks identified onSchedule B (together with such other trademarks as may be authorized by the Company from time to time for current use by the Bottler under this Agreement, the “Trademarks”), which, among other things, identify and distinguish theConcentrates, the Syrups and the Beverages;

C.        The primary business of theBottler is to act as a bottler of the Beverages, either directly pursuant to certain agreements with the Company, all of which are identified on Schedule C (collectively, together with all amendments thereto, the “Existing BottleContracts”), or indirectly through one or more persons controlling, controlled by or under common control with the Bottler the “Bottler Affiliates”);

D.       The reputation of the Beverages as being of consistently superior quality has been a major factor in stimulating and sustaining demand for the Beverages, andspecial technical skill and constant diligence on the part of the Bottler and the Company are required in order for the Beverages to maintain the excellence that consumers expect; and

E.        Conditions affecting the production, sale and distribution of Beverages have changed since the Company and the Bottler, or itspredecessors-in-interest, entered into the Existing Bottle Contracts, and, as a consequence, the Company and the Bottler desire to amend the Existing Bottle Contracts, the terms of the Existing Bottle Contracts, as so amended, being restated in theform of this Agreement;

 

NOW THEREFORE, for and in consideration of the mutualcovenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Bottler agree as follows:

**ARTICLE I**

**TheAuthorization**

1.        The Company authorizes the Bottler, and the Bottlerundertakes, to manufacture and package the Beverages and to distribute and sell the Beverages only in Authorized Containers, as hereinafter defined, under the Trademarks in and throughout the territory described on Schedule D (together with anyterritories added under paragraph 31, and subject to the possible elimination of subterritories under paragraph 29, the “Territory”).

2.       The Company will, from time to time, in its discretion, approve containers of certain types, sizes, shapes and other distinguishing characteristics (collectively,subject to any additions, deletions and modifications by the Company, the “Authorized Containers”). A list of Authorized Containers for each Beverage will be provided by the Company to the Bottler, which list may be amended by the Companyfrom time to time by additions, deletions or modifications. The Bottler is authorized to use only Authorized Containers in the manufacture, distribution and sale of the Beverages. The Company reserves the right to withdraw from time to time itsapproval of any of the Authorized Containers upon six (6) months notice to the Bottler, and, in such event, the repurchase provisions of subparagraph 28(e) shall apply to containers so disapproved that are owned by the Bottler. The Company willexercise its right to approve, and to withdraw its approval of, specific Authorized Containers in good faith so as to permit the Bottler to continue to satisfy the demand in the Territory as a whole for Beverages in containers of the natureidentified on Schedule E.

**ARTICLE II**

**ExclusiveAuthorization**

3.        The Company appoints the Bottler as its sole andexclusive purchaser of the Concentrates and Syrups for the purpose of manufacture, packaging and distribution of the Beverages under the Trademarks in Authorized Containers for sale in the Territory.

4.        The Company agrees not to authorize any other party whatsoever to use the Trademarks on Beverages in AuthorizedContainers, or any other containers of the nature identified on Schedule E, for purposes of resale in the Territory.

5.        The Bottler shall purchase its entire requirements of Concentrates and Syrups exclusively from the Company and shall not use any other syrup, beverage base, concentrate or otheringredient in the Beverages than as specified by the Company.

**ARTICLE III**

**Obligations of Bottler Relating to Trademarks and Other Matters**

6.        The Bottler acknowledges that the Company is the sole and exclusive owner of the Trademarks, and the Bottler agrees not to question or dispute the validity of the Trademarks ortheir exclusive ownership by the Company. By this Agreement, the Company extends to the Bottler only: (i)a nonexclusive license to use the trademark “Coca-Cola” as part of the corporate name of the Bottler and (ii)an exclusive license touse the Trademarks solely in connection with

 

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the manufacture, packaging, distribution, and sale of the Beverages in Authorized Containers in the Territory subject to the rights reserved to the Companyunder this Agreement. Nothing herein, nor any act or failure to act by the Bottler or the Company, shall give the Bottler any proprietary or ownership interest of any kind in the Trademarks or in goodwill associated therewith.

7.        The Bottler agrees during the term of this Agreement and in accordance with any requirementsimposed upon the Bottler, under applicable laws:

(a) Not to produce, manufacture, package, sell, deal in or otherwise use or handle any“Cola Product” (herein defined to mean any soft drink beverage which is generally marketed as a cola product or which is generally perceived as being a cola product) other than a soft drink manufactured, packaged, distributed or sold bythe Bottler under authority of the Company;

(b) Not to manufacture, package, sell, deal in or otherwise use or handle any concentrate,beverage base, syrup, beverage or any other product which is likely to be confused with, or passed off for, any of the Concentrates, Syrups or Beverages;

(c) Not to manufacture, package, sell, deal in or otherwise use or handle any product under any trade dress or in any container that is an imitation of a trade dress or container in which the Company claims aproprietary interest or which is likely to be confused or cause confusion or be confusingly similar to or be passed off as such trade dress or container;

(d) Not to manufacture, package, sell, deal in or otherwise use or handle any product under any trademark or other designation that is an imitation, counterfeit, copy or infringement of, or confusingly similar to, anyof the Trademarks; and

(e) Not to acquire or hold, directly or indirectly, any ownership interest in, or enter into any contract orarrangement with respect to the management or control of, any person within or without the Territory that engages in any of the activities prohibited under subparagraphs (a), (b), (c) or (d) of this paragraph 7.

**ARTICLE IV**

**Obligations of Bottler Relating to Manufacture and Packaging of theBeverages**

 

8.        (a) The Bottler represents and warrants that the Bottler possesses, or will possess, in the Territory, prior to the manufacture, packaging and distribution of the Beverages, andwill maintain during the term of this Agreement such plant or plants, machinery and equipment, trained staff, and distribution and vending facilities as are capable of manufacturing, packaging and distributing the Beverages in Authorized Containersin accordance with this Agreement, in compliance with all applicable governmental and administrative requirements, and in sufficient quantities to satisfy fully the demand for the Beverages in Authorized Containers in the Territory.

(b) The Company and the Bottler acknowledge that each is or may become a party to one or more agreements authorizing a bottler or otherCompany-authorized entity to produce Beverages for sale by another bottler. Such agreements include, but are not limited to (i) agreements permitting bottlers, subject to certain conditions, to commence or continue to manufacture the Beverages forother bottlers, and (ii) agreements pursuant to which bottlers may have the Beverages manufactured for them by other Company-authorized entities. It is hereby agreed that the Company shall not unreasonably withhold (i) any consents required by suchagreements, or (ii) approval of Bottler’s participation in such agreements. All such existing agreements shall remain in full force and effect in accordance with their terms.

9.        The Bottler recognizes that increases in the demand for the Beverages, as well as changes in the list of Authorized Containers, may,from time to time, require adaptation of its existing manufacturing, packaging or delivery equipment or the purchase of additional manufacturing, packaging and delivery equipment. The Bottler agrees to make such modifications and adaptations asnecessary and to purchase and install such equipment, in time to permit the introduction and manufacture, packaging and delivery of sufficient quantities of the Beverages in the Authorized Containers, to satisfy fully the demand for the Beverages inAuthorized Containers in the Territory.

10.      The Bottler warrants that the handling andstorage of the Concentrates; the manufacture, handling and storage of the Syrups; and the manufacture, handling, storage and packaging of the Beverages shall be accomplished in accordance with the Company’s quality control and sanitationstandards, as reasonably established by the Company and communicated to the Bottler from time to time, and shall, in any event, conform with all food, labelling, health, packaging and other relevant laws and regulations applicable in theTerritory.

11.      The Bottler, in accordance with such instructions as may be given fromtime to time by the Company, shall submit to the Company, at the Bottler’s expense, samples of the Syrups, the Beverages and the raw materials used in the manufacture of the Syrups and the Beverages. The Bottler shall permit representatives ofthe Company to have access to the premises of the Bottler during ordinary business hours to inspect the plant, equipment and methods used by the Bottler in order to ascertain whether the Bottler is complying with the instructions and standardsprescribed for the manufacturing, handling, storage and packaging of the Beverages.

12.      (a) For the packaging, distribution and sale of the Beverages, the Bottler shall use only such Authorized Containers, closures, cases,****cartons and other packages and labels as shall be authorizedfrom time to time by the Company for the Bottler and shall purchase such items only from manufacturers approved by the Company, which approval shall not be unreasonably withheld. The Company shall approve three or more manufacturers of such items,if in the reasonable opinion of the Company, there are three or more manufacturers who are capable of producing such items to be fully suitable for the purpose intended and in accordance with the high quality standards and image of excellence of theTrademarks and the Beverages. Such approval by the Company does not relieve the Bottler of the Bottler’s independent responsibility to assure that the Authorized Containers, closures, cases, cartons and other packages and labels purchased bythe Bottler are suitable for the purpose intended, and in accordance with the good reputation and image of excellence of the Trademarks and Beverages.

(b) The Bottler shall maintain at all times a stock of Authorized Containers, closures, labels, cases, cartons and other essential related materials bearing the Trademarks, sufficient to satisfy fully the demand forBeverages in Authorized Containers in the Territory, and the Bottler shall not use or permit the use of Authorized Containers, or such closures, labels, cases, cartons and other materials, if they bear the Trademarks or contain any Beverages, forany purpose other than the packaging and distribution of the Beverages. The Bottler further agrees not to refill or otherwise reuse nonreturnable containers. 

 

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13.      If the Company determines the existence of quality ortechnical difficulties with any Beverage, or any package used for such product, the Company shall have the right, immediately and at its sole option, to withdraw such product or any such package from the market. The Company shall notify the Bottlerin writing of such withdrawal, and the Bottler shall, upon receipt of notice, immediately cease distribution of such product or such package therefor. If so directed by the Company, the Bottler shall recall and reacquire the product or packageinvolved from any purchaser thereof. If any recall of any product or any of the packages used therefor is caused by (i) quality or technical defects in the Syrup, Concentrate or other materials prepared by the Company from which the product involvedwas prepared by the Bottler, or (ii) quality or technical defects in the Company’s designs and design specifications of packages which it has imposed on the Bottler or the Bottler’s third party suppliers if such designs and specificationswere negligently established by the Company (and specifically excluding designs and specifications of other parties and the failure of other parties to manufacture packages in strict conformity with the designs and specifications of the Company),the Company shall reimburse the Bottler for the Bottler’s total expenses incident to such recall. Conversely, if any recall is caused by the Bottler’s failure to comply with instructions, quality control procedures or specifications forthe preparation, packaging and distribution of the product involved, the Bottler shall bear its total expenses of such recall and reimburse the Company for the Company’s total expenses incident to such recall.

**ARTICLE V**

**Conditions of Purchase and Sale**

14.      (a)   The Company reserves the right to establish and to revise**at any time, in its sole discretion, the price of any**of the Concentrates or Syrups, the terms of payment, and the other terms and conditions of supply, any such revision to beeffective immediately upon notice to the Bottler. If Bottler rejects a change in price or the other terms and conditions contained in any such notice, then the Bottler shall so notify the Company within thirty (30) days of receipt of theCompany’s notice, and this Agreement will terminate ninety (90) days after the date of such notification by the Bottler, without further liability of the Company or the Bottler. The change in price or other terms and**conditions so rejected by the**Bottler shall not apply to purchases of**such Concentrate or Syrup by the Bottler during such ninety(90) day period preceding termination. Failure by the Bottler to notify the Company of its rejection of the changes in price or such other terms and conditions shall be deemed acceptance thereof by the Bottler.

(b)   The Company shall sell to the Bottler, upon Bottler’s request, either Syrup or Concentrate; provided, however, that once the Bottleror any Bottler Affiliate has elected to purchase Concentrate for any Company soft drink, the Company shall no longer be obligated to supply Syrup to the Bottler, and provided further that any such election by the Bottler or by any Bottler Affiliateto purchase Concentrate shall be with respect to all Company soft drinks.

15.      TheBottler shall purchase from the Company only such quantities of the Concentrates or Syrups as shall be necessary and sufficient to carry out the Bottler’s obligations under this Agreement. The Bottler shall use the Concentrates exclusively forits manufacture of the Syrups and shall use the Syrups exclusively for its manufacture of the Beverages. The Bottler shall not sell or otherwise transfer any Concentrate or Syrup or permit the same to get into the hands of third parties.

16.      (a)   The Bottler agrees not to distribute or sell any Beverage outside theTerritory. The Bottler shall not sell any Beverage to any person (other than another bottler pursuant to subparagraph 8(b)) under circumstances where Bottler knows or should know that such person will redistribute the Beverage for ultimate saleoutside the Territory. If any Beverage distributed by the Bottler is found outside of the Territory, Bottler shall be deemed to have transshipped such Beverage and shall be deemed to be a “Transshipping Bottler” for purposes hereof;provided, however, that if the Offended Bottler has not agreed to terms substantially similar to this subparagraph 16(a) with respect to the transshipment of Beverages, Bottler shall only be deemed to have transshipped such Beverage if Bottler knewor should have known that the purchaser would redistribute the Beverage outside of the Territory prior to ultimate sale. For purposes of this Agreement, “Offended Bottler” shall mean a bottler in any territory into which any Beverage istransshipped.

(b)   In addition to all other remedies the Company may have against any Transshipping Bottler for violationof this paragraph 16, the Company may impose upon any Transshipping Bottler a charge for each case of Beverage transshipped by such bottler. The per-case amount of such charge shall be determined by the Company in its sole discretion and may be anamount not to exceed three times the Offended Bottler’s most current average gross margin per case of the Beverage transshipped, as reasonably estimated by the Company. If the Offended Bottler does not sell the Beverage that has beentransshipped, the Company may make the foregoing estimate on the basis of what it considers a comparable product. The Company and the Bottler agree that the amount of such charge shall be deemed to reflect the damages to the Company, the OffendedBottler and the bottling system. The Company shall forward to the Offended Bottler, upon receipt from the Transshipping Bottler, not less than an amount per case which approximates the Offended Bottler’s most current average gross margin percase of the Beverage transshipped. If the Company or its agent recalls any Beverage which has been transshipped, the Transshipping Bottler shall, in addition to any other obligation it may have hereunder, reimburse the Company for its costs ofpurchasing, transporting and/or destroying such Beverage.

 

**ARTICLE VI**

**Obligations of the Bottler Relating to the****Marketing of the Beverages, Financial Capacity andPlanning**

17.      The continuing responsibility to develop and stimulate and satisfyfully the demand for the Beverages in Authorized Containers within the Territory rests upon the Bottler. The Bottler agrees to use all approved means as may be reasonably necessary to meet this responsibility.

18.      The parties agree that to develop and stimulate demand for the Beverages in Authorized Containersadvertising and other forms of marketing activities are required. Therefore, the Bottler will spend such funds in advertising and marketing the Beverages as may be reasonably required to stimulate, as well as maintain, demand for the Beverages inAuthorized Containers in the Territory. The Bottler shall fully cooperate in and vigorously promote all cooperative advertising and sales promotion programs and campaigns that may be reasonably established by the

 

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Company for the Territory. The Bottler will use and publish only such advertising, promotional materials or other items bearing the Trademarks relating tothe Beverages as the Company has approved and authorized. The expenditures required by this Article VI shall be made by the Bottler. The Company may, in its sole discretion, contribute to such expenditures. The Company may also undertake, at itsexpense, independently of the Bottler’s marketing programs, any advertising or promotional activity that the Company deems appropriate to conduct in the Territory, but this shall in no way affect the responsibility of the Bottler forstimulating and developing the demand for the Beverages in Authorized Containers in the Territory.

19.      The Bottler and all Bottler Affiliates shall maintain the consolidated financial capacity reasonably necessary to assure that the Bottler and all Bottler Affiliates directly orindirectly controlled by the Bottler will be financially able to perform their respective duties and obligations under this Agreement and under all other agreements between the Company and Bottler Affiliates regarding the manufacture, packaging,distribution and sale of the Beverages in “authorized containers” (as defined in such agreements).

20.      (a)   Since periodic planning is essential for the proper implementation of this Agreement, the Bottler and the Company shall meet annually, as close to the anniversarydate of this Agreement as practicable or at such other annual date as the parties may set from time to time, to discuss the Bottler’s plans for the ensuing year. At such meeting, the Bottler shall present a plan that sets out in reasonabledetail satisfactory to the Company the marketing, management and advertising plans of the Bottler with respect to the Beverages for the ensuing year,**including a financial plan showing that the Bottlerand all Bottler Affiliates have the consolidated financial capacity to perform their respective duties and obligations under their respective agreements with the Company regarding the manufacture, packaging, distribution and sale of the Beverages in“authorized containers” (as defined in such agreements). The Company and the Bottler shall discuss this plan and this plan, upon approval by the Company, which shall not be unreasonably withheld, shall define the Bottler’s obligationherein to maintain such consolidated financial capacity and to develop and stimulate and satisfy fully the demand for the Beverages in Authorized Containers in the Territory for the period of time covered by the plan.

(b)   The Bottler shall report to the Company periodically, but not less than quarterly, as to its implementation of the approved plan; it isunderstood, however, that the Bottler shall report sales on a regular basis as requested by the Company and in such detail and containing such information as may be reasonably requested by the Company. The failure by the Bottler to carry out theplan, or if the plan is not presented or is not approved, will constitute a primary consideration for determining whether the**Bottler has**fulfilled itsobligation to maintain the consolidated financial capacity required under paragraph 19 and to develop and stimulate and satisfy fully the demand for the Beverages in Authorized Containers in the Territory. If the Bottler carries out the plan in allmaterial respects, it shall be deemed to have satisfied the obligations of the Bottler under paragraphs 17, 18, 19 and 20 for the period of time covered by the plan.

**ARTICLE VII**

**Reformulation, New Products and Related Matters**

21.      The Company has the sole and exclusive right and discretion to reformulate any of the Beverages. In addition, theCompany has the sole and exclusive right and discretion to discontinue any of the Beverages under this Agreement, provided (i) such Beverage is discontinued on a national basis in Authorized Containers and in such other containers as may have beenauthorized for use by other bottlers under their respective bottle contracts, and (ii) the Company does not discontinue all Beverages under this Agreement. In the event that the Company discontinues any Beverage, Schedule A to this Agreement shallbe deemed amended by deleting the discontinued Beverage from the list of Beverages set forth**on Schedule A.

22.      In the event that the Company introduces any new beverage in the Territory under the trademarks “Coca-Cola” or “Coke” or any modificationthereof (herein defined to mean the addition of a prefix, suffix or other modifier used in conjunction with the trademarks “Coca-Cola” or “Coke”), the Bottler shall be obligated to manufacture, package, distribute and sell suchnew beverage in Authorized Containers in the Territory pursuant to the terms and conditions of this Agreement, and Schedule A to this Agreement shall be deemed amended by adding such new beverage to the list of Beverages set forth**on Schedule A.

23.      The Company has the unrestrictedright to use the Trademarks on the Beverages and on all other products and merchandise other than the Beverages in Authorized Containers in the Territory.

**ARTICLE VIII**

**Term and Termination of the Agreement**

24.      The term of this Agreement shall commence on the effective date hereof and, unless earlier terminated in accordance with its provisions, will continueperpetually.

25.      The obligation to supply Concentrates or Syrups to the Bottler andthe Bottler’s obligation to purchase Concentrates or Syrups from the Company and to manufacture, package, distribute and sell the Beverages under this Agreement shall be suspended during any period when any of the following conditionsexist:

(a)       There shall occur a change in the law orregulation (including, without limitation, any government permission or authorization regarding customs, health or manufacturing) in such a**manner as to render unlawful or commerciallyimpracticable:

(i)       the importation of Concentrate orSyrup or any of its essential ingredients, which**cannot be produced in quantities sufficient to satisfy the demand therefor by existing Company facilities in the United States; or

(ii)      the manufacture and distribution of the Concentrates, Syrups or Beverages;or

(b)      There shall occur any inability or commercialimpracticability of either of the parties to perform resulting from an act of God, or “force majeure”, public enemies, boycott, quarantine, riot, strike, or insurrection, or due to a declared or undeclared war, belligerency or embargo,sanctions, blacklisting, or other hazard or danger incident to the same, or resulting from any other cause whatsoever beyond its control. 

If any of theconditions described in this paragraph 25 persists so that either party’s obligation to perform is suspended for a period of six (6) months or more, the other party may terminate this Agreement forthwith,**upon notice to the party whose obligation to perform is suspended.

 

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26.      (a) The Company may terminate this Agreement in the event of the occurrence ofany of the following events of default:

(i)       If theBottler becomes insolvent; if a petition in bankruptcy is filed against or on behalf of the Bottler which is not stayed or dismissed within sixty (60) days; if the Bottler is put in liquidation or placed under sequester, if a receiver is appointedto manage the business of the Bottler, or if the Bottler enters into any judicial or voluntary arrangement or composition with its creditors, or concludes any similar arrangements with them or makes an assignment for the benefit ofcreditors;

(ii)      If the Bottler adopts a plan of dissolution orliquidation;

(iii)     If any person or any Affiliated Group, other than(a) the stockholders of the Bottler at the effective date of this Agreement or (b) any person or any Affiliated Group acting with the consent of the Company, acquires, or obtains any contract, option, conversion privilege or other right to acquire,directly or indirectly, Beneficial Ownership of more than ten percent (10%) of any class or series of voting securities of the Bottler, and if such person or Affiliated Group does not divest itself of Beneficial Ownership of such voting securitiesor otherwise terminate any such contract, option, conversion privilege or other right within thirty (30) days after the Company notifies the Bottler that the failure of such person or Affiliated Group to thus divest or terminate may result intermination of this Agreement;

(iv)     If any Disposition is madewithout the consent of the Company by Bottler or by any Bottler Subsidiary of any voting securities of any Bottler Subsidiary;

(v)      If any**agreement regarding the manufacture, packaging, distribution or sale of the Beverages in “authorizedcontainers” (as defined in such agreement) between the Company and any person that controls, directly or indirectly, the Bottler is terminated, unless the Company agrees in writing that this subparagraph 26(a)(v) will not be applied by theCompany to such termination; or

(vi)     If the Bottler or any person inwhich the Bottler has Beneficial Ownership of any equity or**voting securities, or in which the Bottler has a right of control of management, or which controls or is under common control with theBottler, should engage directly or indirectly in the manufacture, distribution or marketing of any product specified in subparagraphs (a), (b), (c) or (d) of paragraph 7 above, or should obtain a right or license to do the same, and if the Companyhas given the Bottler notice that such condition exists and that the Company will terminate this Agreement within six (6) months if such condition is not eliminated, and if such condition has not been eliminated within the six (6) month period.

(b)       For purposes of this Agreement:

(i)       “Affiliated Group” shall mean two or more persons acting as a partnership, limitedpartnership, syndicate or other group, or who agree to act together, for the purpose of acquiring, holding, voting or making any Disposition of any voting securities of the Bottler, provided further that the Affiliated Group formed thereby shall bedeemed to have acquired Beneficial Ownership of all voting securities of the Bottler beneficially owned by any such persons.

(ii)      “Beneficial Ownership” shall mean (i) voting power which includes the power to vote, or to direct the voting of, any securities, or (ii) investmentpower which includes the power to dispose, or to direct the Disposition of, any securities; provided further Beneficial Ownership shall include any such voting power or investment power which any person has or shares, directly or indirectly, throughany contract, arrangement, understanding, relationship or otherwise; provided, however, that the following persons shall not be deemed to have acquired Beneficial Ownership under the circumstances described: (a) a person engaged in business as anunderwriter of securities who acquires securities through his participation in good faith in a firm commitment underwriting registered under the Securities Act of 1933 shall not be deemed to be the Beneficial Owner of such**securities until such time as such underwriter completes his participation in the underwriting and shall not thereupon or thereafter be deemed to be the Beneficial Owner of the securities acquired by other members of anyunderwriting syndicate or selected dealers in connection with such underwriting solely by reason of customary underwriting or selected dealer arrangements; (b) a member of a national securities exchange shall not be deemed to be a Beneficial Ownerof 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; and (c) theholder of a proxy solicited by the Board of Directors of the 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 such Bottler shall not be deemed tobe a Beneficial Owner of the securities that are the subject of the proxy solely for such reason. 

(iii)     “Bottler Subsidiary” shall mean any person that is controlled directly or indirectly by the Bottler, and that is a party, or controls directly or indirectly a party, to an agreementwith the Company regarding the manufacture, packaging, distribution or sale of the Beverages in “authorized containers” (a defined in such agreement);

(iv)     “Disposition” shall mean any sale, merger, issuance of securities or other transaction in which, or as a result of which, any personother than Bottler or a wholly owned subsidiary of Bottler, acquires, or obtains any contract, option, conversion privilege or other right to acquire Beneficial Ownership of any securities.

(c)       Upon the occurrence of any of the events of default specified in subparagraph 26(a), the Company may terminatethis Agreement by giving the Bottler notice to that effect, effective immediately.

27.      (a) In additionto the events of default described in paragraph 26, the Company may also terminate this Agreement, subject to the limitations of subparagraph 27(b), in the event of the occurrence of any of the following events****of default:

(i)       If the Bottlerfails to make timely payment for Concentrate or Syrup, or of any other debt owing to the Company;

(ii)      If the condition of the plant or equipment used by the Bottler in manufacturing, packaging or distributing the Beverages fails to meet the sanitary standards reasonably established bythe Company;

(iii)     If the Syrups or Beverages manufactured by theBottler fail to meet the quality control standards reasonably established by the Company;

(iv)     If the Beverages are not manufactured in strict conformity with such standards and instructions as the Company may reasonably establish;

 

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(v)      If the Bottler fails to carry out aplan approved under paragraph 20 in all material respects; or

(vi)     If**the Bottler materially breaches any of the Bottler’s other obligations under this Agreement. 

The standards andinstructions of the Company comprise privately published information concerning manufacture, handling and storage of the Beverages under good manufacturing practices, as well as technical instructions, bulletins and other communications issued oramended from time to time by the Company (including, but not limited to, Syrup Room Practices, Quality Control and Engineering Standards and GMP: A Guide to Good Manufacturing Practices, as they may be amended or supplemented from**time to time).

(b)       Upon the occurrence of anyof the foregoing events of default, the Company shall, as a condition to termination of this Agreement under this paragraph 27, give the Bottler notice thereof. The Bottler shall then have a period of sixty (60) days within which to cure thedefault, including, at the instruction of the Company and at the Bottler’s expense, by the prompt withdrawal from the market and destruction of any Syrup or Beverage that fails to meet the quality control standards of the Company or anyBeverage that is not manufactured in accordance with the instructions of the Company. If such default his not been cured within such period, then the Company may, by giving the Bottler further notice to such effect, suspend sales to the Bottler ofConcentrates and Syrups and require the Bottler to cease production of the Syrups and the Beverages and the packaging and distribution of Beverages in Authorized Containers. During such second period of sixty (60) days, the Company also may supply,or cause or permit others to supply, the Beverages in Authorized Containers under the Trademarks in the Territory. If such default has not been cured during such second period of sixty (60) days, then the Company may terminate this Agreement, bygiving the Bottler notice to such effect, effective immediately.

28.      Upon the termination of thisAgreement:

(a) The Bottler shall forthwith take such action as necessary to eliminate the trademark “Coca-Cola” from its corporate name;

(b) Any other agreement between the Company and the Bottler regarding the manufacture, packaging, distribution, sale or promotion of soft drinks in “authorizedcontainers” (as defined in such agreement) may, at the election of the Company, be automatically terminated and thereby became of no further force or effect;

(c) The Bottler shall not thereafter continue to manufacture, package, distribute or sell any of the Beverages in Authorized Containers or to make any use of the Trademarks or Authorized Containers, or any closures, cases, labels oradvertising material bearing the Trademarks;

(d) The Bottler shall forthwith remove and efface all reference to the Company, the Beverages and the Trademarksfrom the business premises and equipment of the Bottler and from all business paper and advertising used or maintained by the Bottler; and it shall not thereafter hold forth in any manner whatsoever that it has any connection with the Company or theBeverages; and,

(e) The Bottler shall forthwith deliver all Concentrate, Syrup, Beverage, usable returnable or any nonreturnable containers, cases, closures,labels, and advertising material bearing the Trademarks, still in the Bottler’s possession or under the Bottler’s control, to the Company or the Company’s nominee, as instructed, and, upon receipt, the Company shall pay to the Bottlera sum equal to the reasonable market value of such supplies or materials. The Company will accept and pay for only such articles as are, in the opinion of the Company, in first class and usable condition, and all other such articles shall bedestroyed at the Bottler’s expense. Containers, closures and advertising material and all other items bearing the name of the Bottler, in addition to the Trademarks, that have not been purchased by the Company shall be destroyed without cost tothe Company, or otherwise disposed of in accordance with instructions given by the Company, unless the Bottler can remove or obliterate the Trademarks therefrom to the satisfaction of the Company. The provisions for repurchase contained insubparagraph 28(e) shall apply with regard to any Authorized Container, approval of which has been withdrawn by the Company under paragraph 2; upon termination by either party under paragraph 25; and upon termination by the Bottler undersubparagraph 14(a). In all other cases, the Company shall have the right, but not the obligation, to purchase the aforementioned items from the Bottler.

29.      (a) Subject to the limitations set forth in subparagraph 29(b), in the event that the Bottler at any time fail to carry out a plan approved under paragraph 20 in all material respects inany geographic segment of the Territory, which segment shall be defined by the Company (hereinafter “Subterritory”), the Company may reduce the Territory covered by this Agreement, and thereby restrict the Bottler’s authorizationhereunder to the remainder of the Territory, by eliminating the Subterritory, from the Territory covered by this Agreement.

(b)       In the event of such failure, the Company may eliminate Subterritories from the Territory covered by this Agreement by giving the Bottler notice to that effect, which notice shalldefine the Subterritory or Subterritories to which the notice applies. The Bottler shall then have a period of six (6) months within which to cure such failure. If the Bottler has not cured such failure in such six (6) month period, the Company mayeliminate such Subterritory, or Subterritories from the Territory by giving the Bottler further notice to that effect, effective immediately.

(c)       Upon elimination of any Subterritory from the Territory:

(i)       Schedule D to this Agreement shall be deemed amended by eliminating such Subterritory from the Territory described on ScheduleD;

(ii)      The Company may manufacture, package, distribute andsell the Beverages in Authorized Containers under the Trademarks in such Subterritory, or authorize others to do so;

(iii)     Any other agreement between the Bottler and the Company regarding the manufacture, packaging, distribution or sale of soft drinks in “authorized containers” **(**as****defined in such agreement) in such Subterritory may, at the election of the Company, be automatically terminated and thereby become of no further force or effect insuch Subterritory,

(iv)     The Bottler shall not thereafter continue tomanufacture, package, distribute or sell any of the Beverages in Authorized Containers in such Subterritory, or to make any use of the Trademarks, Authorized Containers, closures, cases, labels or advertising material bearing the Trademarks inconnection with the sale or distribution of the Beverages in such Subterritory; and

(v)      The Bottler shall not thereafter hold forth in such Subterritory in any manner whatsoever that it has any connection with the Beverages.

 

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**ARTICLE IX**

**Transferability/AdditionalTerritories**

30.      The Bottler hereby acknowledges the personal nature of theBottler’s obligations under this Agreement with respect to the performance standards applicable to the Bottler, the dependence of the Trademarks on proper quality control, the level of marketing effort required of the Bottler to stimulate andmaintain demand for the Beverages in Authorized Containers, and the confidentiality required for protection of the Company’s trade secrets and confidential information. In recognition of the personal nature of these and other obligations of theBottler under this Agreement, the Bottler may not assign, transfer or pledge this Agreement or any interest therein, in whole or in part, whether voluntarily, involuntarily, or by operation of law (including, but not limited to, by merger orliquidation), or delegate any material element of the Bottler’s performance thereof, or sublicense its rights hereunder, in whole or in part, to any third party or parties, without the prior consent of the Company. Any attempt to take suchaction without such consent shall be void and shall be deemed to be a material breach of this Agreement.

31.      In the event that the Bottler acquires the right to manufacture and sell any of the Beverages in any container that has been designated as an Authorized Container in any territory in theUnited States outside of the Territory, such additional territory shall automatically be deemed to be included within the Territory covered by this Agreement for all purposes. Any separate agreement that may exist concerning such additionalterritory shall be *ipso facto*amended to conform to the terms of this Agreement. In addition, if the Bottler acquires control, directly or indirectly, of any person which is a party, or which controlsdirectly or indirectly a party, to an agreement whereby such party has the right to manufacture and sell any of the Beverages in any territory in the United States in any container that has been designated as an Authorized Container, the Bottlershall cause such party to amend such agreement, effective as of the date of acquisition of control of such party, to conform to the terms of this Agreement with respect to all such territory in the United States.

**ARTICLE X**

**Litigation**

32.      (a)      The Company reserves the right toinstitute any civil, administrative or criminal proceeding or action, and generally to take or seek any available legal remedy it deems desirable, for the protection of its good reputation and industrial property rights (including, but not limitedto, the Trademarks), as well as for the protection of the Concentrates, the Syrups, the Beverages and the formulas therefor, and to defend any action affecting these matters. At the request of the Company, the Bottler will render reasonableassistance in any such action. The Bottler may not claim any right against the Company as a result of such action or for any failure to take such action. The Bottler shall promptly notify the Company of any litigation or proceeding instituted orthreatened affecting these matters. The Bottler shall not institute any legal or administrative proceedings, against any third party which may affect the interests of the Company in connection with this Agreement without the Company’s priorconsent.

(b)      The Company has the sole and exclusive right andresponsibility to prosecute and defend all suits relating to the Trademarks. The Company may prosecute or defend any suit relating to the Trademarks in the name of the Bottler whenever an issue in such suit involves the Territory and therefore it isappropriate to act in the Bottler’s name, or may proceed alone in the name of the Company, provided that the Company shall take no action in the Bottler’s name which the Company knows or should know will materially prejudice or impair therights or interests of the Bottler under this Agreement.

(c)       The Bottler recognizes the importance and benefit to itself and all other bottlers of the Beverages of protecting the interest of the Company in the Beverages, Authorized Containers and the goodwill associated with the Trademarks. Therefore,the Bottler agrees to consult with the Company on all products liability claims or lawsuits brought against the Bottler in connection with the Beverages or Authorized Containers and to take such action with respect to the defense of any such claimor lawsuit as the Company may reasonably request in order to protect the interest of the Company in the Beverages, Authorized Containers and goodwill associated with the Trademarks. Further, the bottler shall supervise, control and direct thedefense of all such products liability claims and lawsuits brought against it in a manner that is reasonably calculated to be consistent with the Company’s aforementioned interest. The Bottler and the Company shall individually be responsiblefor their respective liability, loss, damage, costs, attorneys fees and expenses arising out of or in connection with any such products liability claim or lawsuit brought against them whether individually or jointly; provided, however, that theBottler and the Company expressly reserve all rights of contribution and indemnity as prescribed by law.

 

**ARTICLE XI**

**Automatic Amendment**

33.      In the event that eighty percent (80%) of the bottlers who are parties to agreements with the Company containingsubstantially the same terms as this Agreement, which bottlers purchased for their own account eighty percent (80%) or more of all of the Syrup and equivalent gallons of Concentrate for Beverages purchased for the account of all such bottlers, agreeto any different provisions to be included in this Agreement, then the Bottler hereby agrees to include an amendment containing such different provisions in this Agreement. The gallons of Syrup and equivalent gallons of Concentrate purchased by suchbottlers shall be determined based on the most recently-ended calendar year prior to the date such amendment was first offered to bottlers.

**ARTICLEXII**

**General**

34.      For purposes of this Agreement, the following terms shall have the meanings set forth below:

(a)       “person” means an individual, a corporation, a partnership, a limited partnership, an association, a joint-stock company, atrust, any unincorporated organization, or a government or political subdivision thereof.

(b) “control” (including terms“controlling”, “controlled by” and “under common control with”) means: (i) Beneficial Ownership of a majority of any class or series of voting securities of a person; or (ii) the power or authority, directly orindirectly to elect or designate a majority of the members of the board of directors, or other governing body of a person.

 

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35.      The Company hereby reserves for its exclusive benefit allrights of the Company not expressly granted to the Bottler under the terms of this Agreement.

36.      Without relieving the Bottler of any of its responsibilities under this Agreement, the Company, from time to time during the term of this Agreement, at its option and eitherfree**of charge or on such terms and conditions as the Company may propose, may offer technology to the Bottler which the Company possesses, develops or acquires (and is free to furnish to third partieswithout obligation) relating to the design, installation, operation and maintenance of the plant and equipment appropriate for the maintenance of product quality, sanitation and safety as well as for the efficient manufacture and packaging of theBeverages; or relating to personnel training, accounting methods, electronic data processing and marketing and distribution techniques.

37.      The Bottler agrees:

(a)       It will not disclose to any**third party any nonpublic information whatsoever concerning the composition of the Concentrates, theSyrup or the Beverages, without the prior consent of the Company, and it will use any such information solely to perform its obligations hereunder;

(b)      It will at all times treat and maintain as confidential, all nonpublic information that it may receive at any time from the Company,including, but not limited to:

(i)       Information orinstructions of a technical or other nature, relating to the mixing, sale, marketing and distribution of the product;

(ii)      Information about projects or plans worked out in the course of this Agreement; and

(iii)     Information constituting manufacturing or commercial trade secrets.

The Bottler further agrees to disclose such information, as necessary to perform its obligations hereunder, only to employees of its enterprise: (i) who have a reasonable need to know suchinformation; (ii) who have agreed to keep such information secret; and (iii) whom the Bottler has no reason to believe is untrustworthy; and

(c)       Upon the termination of this Agreement, Bottler will promptly surrender to the Company all original documents and all photocopies or other reproductions inits possession (including, but not limited to, any extracts or digests thereof) containing or relating to any nonpublic information described in this paragraph 37. Following such termination, and the surrender of such materials, the Bottler and itsemployees shall continue to hold any nonpublic information in confidence and refrain from any further use or disclosure thereof whatsoever, provided that such obligation shall expire as to any nonpublic information that does not constitute tradesecrets ten (l0) years following such termination.

38.      The Bottler agrees thatit will not enter into any contract or other arrangement to manage or participate in the management of any other Coca-Cola bottler without the prior consent of the Company.

39.      The Bottler is an independent manufacturer and not the agent of the Company. The Bottler agrees that it will not represent that it is anagent of the Company nor hold itself out as such.

40.      The Bottler covenants andagrees that, so long as this Agreement is in effect the Bottler shall deliver to Company:

(a)       Quarterly Statements.  As soon as such statements are made available to the public, or if such statements are not regularly made available to the public, within thirtydays after each fiscal quarter, an unaudited income and expense statement and balance sheet for the Bottler certified as correct by the chief financial officer of the Bottler;

(b)      Annual Audit Statement.  As soon as such statements are made available to the public, or if such statementsare not regularly made available to the public, within 120 days after the end of each fiscal year, statements of income and retained earnings of the Bottler for the just-ended fiscal year, and a balance sheet of the Bottler as of the end of suchyear, accompanied by an opinion from the independent public accountants of the Bottler; and

(c)       Other Information.  With reasonable promptness such other financial information as the Company may reasonably request.

41.      The Bottler shall maintain its books, accounts and records in accordance with generally accepted accounting principlesand shall permit any person designated in writing by the Company to visit and inspect any of its properties, corporate books and financial records, and make copies thereof and take extracts therefrom, and to discuss the accounts and finances of theBottler with the principal officers thereof, all at such times as the Company may reasonably request. The Company’s rights of inspection under this paragraph 41 shall be exercised reasonably, and only for purposes of determining Bottler’scompliance with its obligations under paragraph 19, so as not to interfere with the normal operation of the Bottler’s business. The Company will treat and maintain as confidential for a period of one year**all nonpublic financial information received from the Bottler.

42.      Theparties agree:

(a)       The Existing Bottle Contractsidentified on Schedule C are hereby amended, superseded and restated in, their entirety, and all rights, duties and obligations of the Company and the Bottler regarding the Trademarks and the manufacture, packaging, distribution and sale of theBeverages in Authorized Containers 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;

(b)      As to all matters addressed herein, this Agreement sets forth the entire agreement between theCompany and the Bottler, 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

(c)       Any waiver or modification of this Agreement or any of its provisions, and any notices givenor consents made under this Agreement shall not be binding upon the Bottler or the Company unless made in writing, signed by an officer or other duly qualified and authorized representative of the Company or by a duly qualified and authorizedrepresentative of the Bottler, and personally delivered or**sent by telegram, telex or certified mail to an officer or other duly qualified and authorized representative of the Company (if from theBottler) or a duly qualified and authorized representative of the Bottler (if from the Company) at the principal address of such party.

43.      Failure of the Company to exercise promptly any option or right herein granted or to require strict performance of any such option or right shall not be deemed to be a waiver of suchoption or right, or of the right to demand subsequent performance of any and all obligations herein imposed upon the Bottler.

44.      The Company may delegate any of its rights, performance or obligations under this Agreement to any subsidiaries or affiliates of the Company upon notice to the Bottler, but no suchdelegation shall relieve the Company of its obligations hereunder.

 

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45.      If any provision of this Agreement, or the applicationthereof to any party or circumstance shall ever be prohibited by or held invalid under applicable law, such provision shall be ineffective to the extent of such prohibition without invalidating the remainder of such provision or any other provisionhereof, or the application of such provision to other parties or circumstances.

46.      This Agreement shall be governed, construed and interpreted under the laws of the State of Georgia.

IN WITNESS WHEREOF, the parties have duly executedthis Agreement in duplicate effective as of the day and year first above written.

 

 

**SUBC, INC**.

 

 

**THE COCA-COLA COMPANY****COCA-COLA USA DIVISION**

 

 

 

 

By: 

                                *(Bottler)*

 

By: 

 

 

 

Title: 

**Vice President**

 

Title: 

**General Counsel**

Date: 

September 13, 2000

 

Date: 

11/30/00

 

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