exv10w3






Exhibit 10.3




April 8, 2009




AGREEMENT: The American Bottling Company



CROWN Cork & Seal USA, Inc. (“Crown”) is pleased to offer the following agreement for the supply of
aluminum [...***...] beverage cans and ends (“Containers”), consistent with standard soft drink
specifications and standard specifications for ABC Containers attached as Exhibit A, and printed
with up to six color decoration. End units supplied shall be 202 diameter standard “LOE” or
Crown’s 202 diameter “Super-Ends®”.



TERM OF AGREEMENT: The term of the Agreement shall be for a period of [...***...] years beginning
[...***...] and extending through [...***...]



LOCATIONS & VOLUMES: Crown shall supply and The American Bottling Company (“ABC”) agrees to
purchase from Crown, [...***...] of ABC’s Container requirements (except as discussed below) for
the sizes specifically indicated with “Xs” below and at the indicated filling locations:



[...***...]



It is understood and agreed that at the Buena Park, CA Louisville, KY, Jacksonville, FL and
Sacramento, CA locations, Crown’s can and/or end supply shall be less than [...***...], to the
extent that ABC fills Containers for [...***...] and [...***...] designates an alternative can
maker to supply its Container (can and end ) requirements. [...***...]




*** CONFIDENTIAL TREATMENT REQUESTED





1









 







[...***...]



* Pending completion and operation of the Victorville, CA location, the parties will discuss the
supply of Containers at that facility.



[...***...]




PRICING:



Effective January 1, 2009, pricing will be based upon the 2008 Base Price for can bodies and ends
as set forth below. [...***...]. The 2009 Base Price includes aluminum ingot, conversion, and
delivery charges, and will be used as the benchmark for ingot to sheet conversion price changes,
and non-metal sheet to can adjustments for the Term of this Agreement as set forth below.




2008 BASE PRICE




	 	 	 	 	 	 	 	 	 	 	 	 	 
	$/MEA (‘000)
	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 
	Can Body
	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 
	202 SuperEnd
	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 
	202 LOE
	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 






2009 BASE PRICE




	 	 	 	 	 	 	 	 	 	 	 	 	 
	$/MEA (‘000)
	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 
	Can Body
	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 
	202 SuperEnd
	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 
	202 LOE
	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 






Base Price assumptions:





	1.	 	Base Prices include standard inks with up to 6-color graphics.
	 
	2.	 	Aluminum London Metals Exchange plus Mid-West Premium for ingot price of [...***...] per
pound.
	 
	3.	 	Base Price includes charge for delivery on [...***...]. Delivery on [...***...] may or may
not be included (depending on the location) and is outlined under the “Freight” section of
this Agreement.





*** CONFIDENTIAL TREATMENT REQUESTED







2









 







Additional Pricing Considerations:





	1.	 	Color Tabs — Additional charge for color tabs (standard colors), add
$ [...***...]/MEA ends. The minimum order quantity for color tabs is [...***...] million
units.
	 
	2.	 	Cans requiring white basecoat: ADD [...***...]/MEA





CONVERSION FACTORS (LBS PER MEA):



Throughout the term of this Agreement, Container prices shall be adjusted based on Net and Gross
metal conversion factors outlined in the chart below.




	 	 	 	 	 	 	 	 	 
	 	 	Gross Weight	 	 	Net Weight	 
	 	 	(pounds per	 	 	(pounds per	 
	 	 	MEA)	 	 	MEA)	 
	[...***...]
	 	 	[...***...]	 	 	 	[...***...]	 
	[...***...]
	 	 	[...***...]	 	 	 	[...***...]	 
	[...***...]
	 	 	[...***...]	 	 	 	[...***...]	 
	202
SuperEnd® ends
	 	 	[...***...]	 	 	 	[...***...]	 
	Shell
	 	 	[...***...]	 	 	 	[...***...]	 
	Tab
	 	 	[...***...]	 	 	 	[...***...]	 
	202 LOE ends
	 	 	[...***...]	 	 	 	[...***...]	 
	Shell
	 	 	[...***...]	 	 	 	[...***...]	 
	Tab
	 	 	[...***...]	 	 	 	[...***...]	 






PRICE ADJUSTMENT:



During the Term of this Agreement, the Base Prices for [...***...] and ends shall be adjusted to
reflect [...***...]





	•	 	[...***...]






	 	•	 	The [...***...] component of the price adjustment factor is based on [...***...]
	 
	 	•	 	[...***...]
	 
	 	•	 	[...***...]





*** CONFIDENTIAL TREATMENT REQUESTED







3









 








[...***...]





	•	 	Aluminum Ingot to Sheet Conversion Costs






	 	•	 	The Base Prices as of January 1, 2009 are the benchmark for price adjustments
beginning in 2010. The Base Prices for each calendar year will be the basis for price
adjustments in the next calendar year.
	 
	 	•	 	[...***...]
	 
	 	•	 	[...***...]






	•	 	[...***...]






	 	•	 	The Base Prices as of January 1, 2009 are the benchmark for price adjustments
beginning in 2010. The Base Prices for each calendar year will be the basis for price
adjustments in the next calendar year.
	 
	 	•	 	On [...***...] each contract year, [...***...]. The first such adjustment shall be
[...***...] and will reflect the [...***...] and subsequent adjustments shall be made each
[...***...] thereafter [...***...]. An example is provided in Appendix I [...***...]






	•	 	Freight Adjustments on [...***...]





*** CONFIDENTIAL TREATMENT REQUESTED







4









 








[...***...]





	 	•	 	[...***...] are sold on an ex works basis and freight is prepaid and added to the
invoice. The pick-up allowances for 2009 are included in Appendix II. The base freight
costs are detailed in the “Freight” section of the Agreement.
	 
	 	•	 	[...***...]






	•	 	Other Adjustments






	 	•	 	Except for the price adjustments noted above, there will be no “Other Adjustments”
for metal or non-metal inflation during the Term of this Agreement.





[...***...]



MONTHLY RECONCILIATION: [...***...]. Crown also shall provide any final hedge reconciliations by
the end of the third (3rd) business day of the next month.




*** CONFIDENTIAL TREATMENT REQUESTED







5









 







PAYMENT TERMS: Payment for Containers supplied under this Agreement shall be due net [...***...]
days from the date of invoice. No cash discounts will be allowed.



[...***...]



FREIGHT: Cans and ends are packaged and loaded in order to maximize trailer utilization (i.e.
pin-wheeled loads) and minimize freight costs. The prices herein include freight delivery costs
for [...***...]



[...***...]



ABC may use its own fleet of trucks to pick up cans and/or ends at the Crown manufacturing
facilities and Crown shall give a freight allowance equal to its cost to deliver by commercial
carrier. Appendix II includes the appropriate freight allowances by location. Crown intends to
supply can bodies to the various ABC filling locations from the following can manufacturing
facilities:




	 	 	 
	 	 	Crown’s Current Can Supply
	[...***...]

	 	[...***...]






*** CONFIDENTIAL TREATMENT REQUESTED




6









 







[...***...]. Crown reserves the right to recalculate the freight component of the Container price
if ABC relocates the delivery sites for substantial quantities of Containers or establishes new
delivery locations.



WAREHOUSING: Crown intends to ship all Containers directly to each ABC filling location where
applicable. At Crown’s discretion, it may choose to establish and ship can bodies through
warehouses in close proximity to ABC filling locations where shipping miles may be too far for
reliable direct service. If such warehouses are established, ABC would be offered freight pick-up
allowances if can bodies are picked-up by ABC trucks.



During the Term of this Agreement, Crown agrees to provide, at [...***...] ABC, warehouse storage
space of [...***...] square feet in the Los Angeles, CA area at a location that is mutually
acceptable to both parties. Such warehouse space is to be appropriate for the storage of filled
beverage cans and bottles.



[...***...]




*** CONFIDENTIAL TREATMENT REQUESTED





7









 







[...***...]



PACKAGING EQUIPMENT: In the prior agreement for the purchase and supply of [...***...] Containers
between Crown and ABC’s predecessor, in consideration for ABC purchasing [...***...] Containers
from Crown, Crown agreed to obtain certain [...***...] can packaging equipment at a cost
(inclusive of installation costs) not to exceed [...***...] (the “Equipment”) to be installed at
[...***...]. The Equipment remains the property of Crown until [...***...] at which time ownership
of the Equipment shall be transferred to ABC; provided, however, that ABC shall not obtain
ownership of the Equipment if this Agreement terminates prior to [...***...] because of a breach by
ABC. ABC agrees that only [...***...] Containers manufactured by Crown may be packaged using the
Equipment during Crown’s ownership of the Equipment. ABC shall keep the Equipment in good order
and repair at its sole cost in accordance with industry standards, normal wear and tear excepted.
[...***...]. ABC shall obtain and maintain for the term of Crown’s ownership of the Equipment,
property insurance for the full replacement value of the Equipment from a carrier reasonably
acceptable to Crown. Such policy shall name Crown as loss payee until ownership transfers to ABC.
The commercial general liability and property insurance policies shall contain a clause that Crown
will be notified of any cancellation or material adverse change thereto at least 30 days prior to
the effective date of the cancellation or material change to the policies. ABC shall provide Crown
with a certificate of insurance upon Crown’s reasonable request. Crown shall not be responsible
for any damage to ABC caused by reason of the use or by reason of any defects in the Equipment,
unless caused by Crown. WITHOUT LIMITING THE FOREGOING, CROWN MAKES NO WARRANTY, WITHER EXPRESS OR
IMPLIED IN FACT OR BY LAW WITH RESPECT TO THE EQUIPMENT, [...***...]. Crown does agree however, to
transfer any manufacturer’s warranties to ABC and ABC shall look solely to the manufacturer of the
Equipment for any manufacturing defects in the Equipment.




FORECASTING AND INVENTORY TURNOVER




*** CONFIDENTIAL TREATMENT REQUESTED




8









 






	1.	 	Forecasts of Requirements — ABC shall supply Crown with a rolling 12 month forecast of
Container requirements. Such forecast shall be for planning purposes only and shall not be
binding on ABC. [...***...]. The parties agree to work together to mitigate forecast issue
and to continually improve forecasting accuracy. [...***...]
	 
	2.	 	Assured Supply — If any of the Crown plants encounter difficulties meeting the needs for the
Containers required by this Agreement, Crown will make commercially reasonable efforts to
source such Containers from other facilities of Crown. The obligations of Crown in the
preceding sentence shall not apply in the case of difficulties relating to Force Majeure.
Crown will make commercially reasonable efforts to resume production at the supply facility
affected by the Force Majeure event under the terms and conditions of this Agreement in a
timely manner.
	 
	3.	 	[...***...]





GRAPHICS AND ARTWORK:





	1.	 	Standard Can Graphics — Normal and customary engraving costs and standard [...***...] press
plate costs will be absorbed by Crown; provided that the engravings and press plates are
actually used to produce for shipment a minimum of [...***...] during the first [...***...]
day period following completion of the engravings. If the [...***...] minimum can quantity is
not shipped in that period, the total engraving and press plate costs of [...***...] will be
invoiced to ABC.
	 
	2.	 	High Quality Graphics — More complex can designs require additional separation work, higher
resolution printing plates [...***...], and incremental set-up time on the press and entail
greater spoilage. Crown reviews each design submitted and will advise which designs, if any
would benefit from its High Quality Graphics process, which would then be subject to an
additional up-charge negotiated at the time of order.
	 
	3.	 	Proof Cans — Crown will send samples for each color on the can, which must be approved by
ABC. In addition, sample cans will need to be supplied to the appropriate Crown plant(s) for
use as color targets. If Crown will need to run the color target cans, either on the proofing
press or on-line, there will be a cost of [...***...] per design.




CONFIDENTIALITY: ABC and Crown agree to maintain strict confidentiality regarding the contents of
this Agreement including all pricing and other terms set forth herein.



PREVIOUS AGREEMENTS: This Agreement shall supersede and replace any previous agreement between the
parties [...***...] and the Supply Agreement dated June 15, 2004 as amended in its entirety
(including the paragraph 8 reference to employees or consultants).




*** CONFIDENTIAL TREATMENT REQUESTED




9









 







TERMS AND CONDITIONS: The attached Terms of Business executed by the parties of even date herewith
shall be incorporated herein by reference and govern the supply of Containers from Crown to ABC.
To the extent there is a conflict between the Terms of Business and the terms specified in this
Agreement, the terms of this Agreement shall supersede and take precedence.



If you are in agreement with the terms and conditions set forth above, please sign in the space
provided below and return one original copy to Crown.




	 	 	 	 	 
	CROWN Cork & Seal USA, Inc.

 	 	 
	By:  	/s/ Thomas T. Fischer
 	 	 
	 	(Authorized Representative) 	 	 
	 	 	 	 
	 
	THE AMERICAN BOTTLING COMPANY

 	 	 
	By:  	/s/ Derry Hobson
 	 	 
	 	(Authorized Representative) 	 	 
	 	 	 	 



10









 






	 	 	 	 	 



Appendix I: Aluminum Ingot to Sheet Conversion and Sheet to Can Conversion Price Adjustment
Examples



[...***...]




*** CONFIDENTIAL TREATMENT REQUESTED




11









 








2010 Producer Price Inflation Example



[...***...]




***
CONFIDENTIAL TREATMENT REQUESTED ON 5 PAGES




12









 








Appendix II: ABC Freight Allowances for Customer Pick-Up (CPU)



[...***...]




*** CONFIDENTIAL TREATMENT REQUESTED




 









 








TERMS OF BUSINESS

(GOODS)




INTRODUCTION.



These Terms of Business are signed in consideration of the mutual agreements herein and other
consideration, the receipt and adequacy of which is hereby acknowledged, and with the understanding
that the undersigned companies are bound by their terms.



As used in these Terms of Business, “we”, “our”, “us” (and like terms) refers to Purchaser. “You”,
“yours” means you, the Supplier.



PURCHASER. American Bottling Company



SUPPLIER. Crown Cork & Seal USA, Inc.



GOODS. “Goods” has the same meaning in these Terms of Business as “Containers” in the letter
agreement.



QUANTITIES. Unless expressly specified in the letter agreement, Purchaser will have no obligation
to order, purchase or use any quantity of Goods, except for those quantities ordered in its written
purchase order or expressly committed to in a hedging order or, in the case of a blanket purchase
order, releases issued thereunder and not the entirety of the blanket purchase order.



SUBCONTRACTORS. You may not subcontract the manufacturing of Goods unless otherwise specified in
the Agreement or with our prior written approval. We specifically acknowledge that your
wholly-owned subsidiaries may manufacture Goods or components thereof as part of your performance
of this Agreement. Notwithstanding the foregoing and regardless of whether subcontracting was
specified or otherwise approved, including if we pay directly for such Goods, you remain fully
responsible for the payment and performance of all of your subcontractors, suppliers and vendors.



PRICES FOR GOODS. The price(s) for Goods (the “Prices”) and any applicable pricing adjustments are
set forth in the letter agreement (the “Price”).



TAXES. We will pay those sales, use, excise or other similar taxes (excluding taxes based on your
net income or business enterprise) assessed on the Prices paid hereunder. Unless we provide you a
valid exemption certificate, we will pay you those taxes you actually paid or are required to
collect or pay. Such taxes must be invoiced along with the Prices, and we will pay them, in
accordance with the Payment Terms Section above.



SPECIFICATIONS FOR GOODS. All delivered Goods (and their packaging) must comply with any and all
applicable Specifications or as we may have mutually agreed with you in the Agreement or otherwise
in writing. If no such Specifications exist for their containers, the containers must be
recognized standard containers suitable for their transportation, handling and storage and
sufficient to prevent any leakage, spillage or damage. In addition, you may not modify the Goods
in any way without notice to, and prior written approval from, us prior to shipment so that we may
evaluate and consent to any modification of the Goods. If we receive any modified Goods without
our consent, we may return them at your expense, and you will reimburse us for all losses, damages
and expenses we incur as a result of the modification.



BACKUP DOCUMENTATION. You will maintain, and upon our request, promptly provide complete and
accurate backup documentation sufficient to substantiate all transactions with us and charges
claimed on each invoice. [...***...]. You will otherwise cooperate with all reasonable requests
in connection with such review. You shall promptly refund to us any overcharge resulting from such
review. This Section shall survive for 12 months after the later of the last transaction between
us or the expiration or termination of any applicable agreement between us.



FORECASTS. We may, from time to time, provide you with good faith forecasts/estimates and/or
blanket purchase orders for our anticipated needs for Goods. These may be for annual and/or
monthly rolling



*** CONFIDENTIAL TREATMENT REQUESTED




 









 







periods. These are separate and apart from any hedging requests we may issue pursuant to the
letter agreement and will create no obligation or liability for Purchaser. They are provided
solely so that you can plan your production, inventory and capacity in order to supply Purchaser in
the normal course of your business and in accordance with the terms herein.



ORDERING. We will notify you of any and all required quantities, delivery dates (“Delivery
Dates”), delivery locations, shipping instructions and other terms for Goods via our written
purchase order. This purchase order, once accepted, will be binding upon you. Any pre-printed
terms and conditions contained in forms used by either you or us to implement this Agreement,
including any purchase order, acknowledgment, invoice or other correspondence will be disregarded.



DELIVERY OF CONFORMING GOODS. You agree to deliver all ordered Goods, undamaged, without
substitution, and in compliance with our accepted Purchase Order, the Specifications, all
warranties and other terms and conditions of this Agreement.






Failure to Deliver Goods. If you fail to deliver or if you deliver non-conforming Goods as
required above, Purchaser may do any or all of the following: cancel shipment, reject, return
or hold them for you (for full credit and at your expense and risk), and/or require replacement
(but only with our written authorization). [...***...]




Removal of Insignia/Destruction of Goods. For any rejected, returned or unpurchased Goods, you
will remove any evidence of our name, trademarks or the like before selling or otherwise
disposing of them, destroy any food or beverage product not fit for human consumption, and
indemnify us against any claim, loss or damage arising out of your failure to do so.


INSPECTION/ACCEPTANCE. We may inspect Goods prior to payment or acceptance to verify compliance
with the terms of this Agreement and applicable criteria or Specifications. Payment will not
constitute acceptance thereof. However, neither our inspection, approval or acceptance, nor lack
thereof, nor anything else in this Agreement, will relieve or limit any of your obligations and
warranties under this Agreement (including for testing, inspection, and quality control), whether
or not a defect or nonconformity is apparent on examination.



TITLE AND RISK OF LOSS OF GOODS. Title and risk of loss will remain with you until tender of
delivery of the Goods at the Delivery Location.



QUALITY ASSURANCE AND TECHNICAL SUPPORT FOR GOODS. With respect to Goods, you agree (at our
request and at no charge to us) to:





	 	•	 	Facility Audits. Allow us (together with our representatives) to audit your
manufacturing facilities upon reasonable advance notice and during normal business hours
to verify compliance with this Agreement; provided you receive reasonable assurances of
confidentiality from our representatives and reasonable advance notice. We acknowledge
that we are responsible for any unauthorized disclosure or use of your Confidential
Information by our representatives.
	 
	 	•	 	Technical Support. Provide information and assistance to identify and resolve issues
relating to the Goods, including:






	 	•	 	Technical support personnel fluent in English.
	 
	 	•	 	Use of laboratories in the U.S. or, as reasonably requested, where Purchaser is
located.
	 
	 	•	 	Full cooperation with us (or independent third parties at our request)
regarding product performance and regulatory issues, including in making any
required disclosures to governmental agencies or the public.
	 
	 	•	 	Information, assistance or a plan of action within 24 hours of our request. If
you do not assist us within such period, we may (at your cost) obtain such
assistance from a third party.






	 	•	 	Recalls. If any quality or technical difficulties with any of the Goods are discovered
or the Goods otherwise fail to comply with the warranties or other provisions of this
Agreement, you agree to:






	 	•	 	Immediately cease distribution, recall and/or withdraw such Goods and their
packaging from the territory or subsequent purchasers thereof, and





*** CONFIDENTIAL TREATMENT REQUESTED




 









 









	 	•	 	[...***...]






	 	•	 	Senior Level Meetings. Meet (through both parties senior management teams) to discuss
opportunities for cost reduction, manufacturing issues, supplier competitiveness, raw
material, delivery and freight costs and other issues.
	 
	 	•	 	Supply Chain Improvement. Establish and participate in supply chain improvement teams
with us in order to review, optimize and reduce costs while improving efficiency of the
supply chain.
	 
	 	•	 	Account Rep. Designate (and if necessary remove and replace) an acceptable account
representative to manage our account and be available for contact all times on a 24-hour
basis.





WARRANTIES.



Each party represents and warrants to the other that:



Authorization, etc. The execution, delivery and performance of this Agreement has been duly
authorized by all necessary corporate action on its part and that this Agreement has been duly and
validly executed and delivered by such party and constitutes a valid and binding agreement of such
party, enforceable against such party in accordance with its terms, subject to bankruptcy laws.



Breach of Law/Agreements/Consents. Its execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby will not (1) violate or conflict with any
applicable Law; (2) conflict with or result in any breach of or constitute (with or without due
notice or lapse of time or both) any material default under, or cause any acceleration of, or any
maturity of, any contract or other agreement it is a party or subject to; (3) require any consent,
approval, order, authorization, license or permit from, or notice, registration or filing with, any
third party (including any domestic or foreign governmental, judicial or regulatory authority or
entity) that it has not already obtained or will obtain prior to such transaction.



Supplier Additional Warranties. In addition, you represent and warrant to us that:





Goods. You further represent and warrant that Goods, in the form and condition supplied by you
and the intended use thereof:




	 	•	 	Specifications, etc. Conform to the Specifications, [...***...], are free from
defects, and free from all liens and encumbrances when sold to us;
	 
	 	•	 	Law. Comply with all applicable Laws;
	 
	 	•	 	Non-Infringement. Do not infringe, violate or misappropriate any Intellectual Property
of any third party;
	 
	 	•	 	Human Consumption. For Goods intended for human consumption (or ingredients
therefore):






	 	•	 	Are fit for human consumption,
	 
	 	•	 	Fully comply with all applicable food and health Laws (including for the Delivery
Location),
	 
	 	•	 	Are not contaminated in any way, and
	 
	 	•	 	Do not comprise nor are derived from any genetically modified organisms or
products.






	 	•	 	Bioterrorism Act. You warrant that as applicable all of your facilities relating to
any Goods shipped within or to the USA are and at all times during the Term shall remain
properly registered under the U.S. Bioterrorism Preparedness and Response Act of 2002, as
may be amended, and regulations pursuant to such act (the “Bioterrorism Act”), and you
shall provide the applicable registration numbers of such facilities to us upon request
along with evidence satisfactory to us of such registration (including, without
limitation, copies of registration confirmations). You warrant that all necessary actions
for the importation of the Goods into the USA under the Bioterrorism Act shall be taken by
you in the manner and time periods required by the Bioterrorism Act. You warrant that you
are in full compliance with all records maintenance requirements pursuant to the
Bioterrorism Act as applicable.






Notice. You will promptly notify us if you have knowledge of any failure to meet these
warranties.


Warranty Exclusions. In no event shall Supplier incur any liability under these warranties where
such liability is directly attributable to Purchaser’s packing, sorting or distribution, or where
the Goods are exported, in an empty or filled state, to a foreign country, unless a special
warranty has been specifically approved in writing by Supplier to cover such exported Goods, or as
a result of improper capping, closing,




*** CONFIDENTIAL TREATMENT REQUESTED




 









 







crimping, filling and gassing operations, provided the Goods are within Specification and except to
the extent Supplier has breached a warranty, caused or contributed to the liability.



IN VIEW OF THE ABOVE EXPRESS WARRANTIES, SUPPLIER MAKES NO OTHER WARRANTY EXPRESS OR IMPLIED IN
FACT OF BY LAW.



HUMAN RIGHTS AND ETHICAL TRADING. We have adopted a Human Rights and Ethical Trading Policy and an
Environmental Policy. These are available at www.cadburyschweppes.com and are incorporated herein
by reference. We integrate these standards and commitments into the way we run our businesses
globally to address such concerns. You represent and warrant that you will review and adhere to
these policies. You are required to achieve high ethical and environmental standards and social
responsibility in your business practices and production supplies.




INDEMNIFICATION.




General Indemnity. [...***...]




Infringement. [...***...]



Indemnification Procedures. We will (1) promptly notify you of any Claim, (2) give you a
reasonable opportunity to defend and/or settle the Claim at your own expense, and (3) not settle
any Claim without your prior written consent. You must, however, provide us with written assurance
of your obligation and ability to pay such Claim (whether through insurance or otherwise). Each
party will assist the other as reasonably requested to properly and adequately defend such Claims.
Our failure or delay in providing prompt notice and assistance will not, however, affect your
obligations under this Section, except to the extent you are materially prejudiced thereby. We may
also, at our expense, participate with our own counsel in the settlement or defense of the Claim.



As used in this Indemnification Section:





“Claims” means claims, demands, suits, proceedings, or actions, judgments, decrees, losses,
damages, costs, penalties, fines, liabilities or expenses (including court costs, litigation
expenses and attorneys’ fees) incurred by or brought or recovered against us .




“indemnify” means “indemnify, defend and hold harmless”.




“us”, “our”, “we” means and includes Purchaser and its Affiliates, and their respective
agents, officers, directors, employees and representatives.



INSURANCE. You will maintain, at your expense, during the Term and 12 months after, the following
insurance:





	 	•	 	[...***...]
	 
	 	•	 	[...***...]
	 
	 	•	 	[...***...]




You must provide us with a certificate of insurance evidencing such coverage within ten (10) days
of the execution of this Agreement. We must be notified at least 30 days prior to any
cancellation, non-renewal or material change to this coverage. [...***...]




*** CONFIDENTIAL TREATMENT REQUESTED




 









 








[...***...]




INTELLECTUAL PROPERTY



The intellectual property belonging to each party at the commencement of this Agreement shall
remain the intellectual property of such party and to the extent that any new intellectual property
is conceived by the parties during the Term of this Agreement and pursuant to this Agreement, the
parties agree to meet and confer to determine ownership and license rights with respect to such
intellectual property.



FURNISHED EQUIPMENT AND MATERIALS. Any equipment or materials we furnish or specifically pay for,
for your use in connection with this Agreement, will remain our sole property and must be clearly
identified as such. You may only use such equipment or materials in your performance of this
Agreement. We may remove them upon demand and you must promptly return them to us once this
Agreement ends. You are responsible for all loss or damage (normal wear and tear excepted) and
must insure such equipment or materials on a replacement cost basis.




TERMINATION.



Either party may terminate this Agreement by giving 30 days notice to the other party, without
limiting any other rights and remedies therein, if any of the following occur:





	 	•	 	The other party breaches any material term, representation, warranty or obligation
hereunder, and does not cure such to the terminating party’s reasonable satisfaction
within 30 days after notice, or if such breach cannot be cured within such 30 day period,
the other party does not commence and diligently pursue such cure within such 30 day
period.
	 
	 	•	 	The other party enters Bankruptcy.
	 
	 	•	 	The other party, or any transaction, transfers (or attempts to, purports to, or in
effect does so transfer) any rights or obligations hereunder (or control thereof), except
as expressly permitted herein.
	 
	 	•	 	The other party (or its employee, contractor, officer or agent) has engaged in fraud,
dishonesty or any other serious misconduct in the performance of this Agreement, in the
terminating party’s reasonable opinion.
	 
	 	•	 	Any court, tribunal or government agency requires, directly or indirectly, any
modification of this Agreement or either party’s performance hereunder to the terminating
party’s detriment.
	 
	 	•	 	Such party elects to terminate under any other provision herein that expressly allows
it to do so.




In each case, the terminating party must notify the other party in writing including the date of
termination.



Obligation to Cooperate/Transition Period. Upon expiration of this Agreement or in the event that
either party gives notice of termination as provided herein, each party shall ensure that all
Confidential Information and materials of the other party that are in its possession or control or
the possession or control or its employees, agents, contractors or subcontractors, are transferred,
assigned and made available to the other party in a timely manner, and in no event later than sixty
(60) days from the date of expiration or termination. If either party gives notice of termination
as provided herein, Purchaser shall purchase Supplier’s inventory of Goods, not to exceed a normal
quantity of inventory for 90 days.



Effect of Termination. Upon termination or expiration of this Agreement without limiting a party’s
remedies and damages for breach, neither party will have any further obligation or liability to the
other hereunder for future performance hereof, except under those provisions surviving by the terms
of this Agreement.



FORCE MAJEURE. Neither party will be liable for any delay or failure to perform hereunder (other
than obligations of payment) to the extent caused by natural disaster, fire, explosion, war,
terrorism, government actions, labor disturbances or other circumstances beyond its reasonable
control and without its fault or negligence. The affected party will immediately notify the other
party and must use reasonable commercial efforts to resume performance. [...***...]




*** CONFIDENTIAL TREATMENT REQUESTED




 









 








CONFIDENTIALITY.



General Requirements. Each party (and its permitted Representatives) must keep the other’s
Confidential Information confidential and may not use it except for the purposes of this Agreement
(the “Permitted Use”) nor copy, reproduce, distribute or disclose it, or allow access to it, to any
third party in any manner. In protecting the other party’s Confidential Information from
unauthorized access, the parties must use a level of care and effort that is, at minimum, equal to
that (1) it uses to protect its own similar information, and (2) in any event, a reasonable degree
of care and effort.



Representatives. A party may disclose and allow access to Confidential Information to its
Representatives in a secure manner, but only if the Representative needs to know that Confidential
Information for the Permitted Use; and is advised of, and agrees in writing to be bound by, this
Agreement’s terms. The party will, however, remain responsible for any breach of this Agreement or
unauthorized disclosure by its Representatives.



Exceptions. These restrictions will not apply to Confidential Information to the extent it is:





	 	•	 	specifically consented to be disclosed or otherwise by the owning party
in writing;
	 
	 	•	 	in the public domain without the receiving party’s or its
Representatives’ fault, action or omission;
	 
	 	•	 	rightfully obtained on a non-confidential basis before disclosure
hereunder;
	 
	 	•	 	rightfully obtained on a non-confidential basis from a third party
without, to the receiving party’s knowledge, the third party violating any
obligation to the owning party; or
	 
	 	•	 	required to be disclosed by law or court order; provided that the party must:






	 	•	 	Promptly notify the owning party in writing;
	 
	 	•	 	Cooperate in the owning party seeking a protective order, confidential
treatment or other appropriate
	 
	 	 	 	remedy; and
	 
	 	•	 	Furnish only the legally required portion of the Confidential Information.




Remedies. Each party agrees that if it breaches this Confidentiality Section, the other party
would be irreparably and immediately harmed and monetary damages would not be an adequate remedy.
Therefore, the harmed party will be entitled to seek injunctive relief and/or to compel specific
performance to enforce the obligations set forth herein. This is in addition to damages and any
other remedy that party may be entitled to under law or equity. The breaching party will reimburse
the other for all costs and expenses, including reasonable attorney’s’ fees, it incurs in enforcing
the breaching party’s obligations hereunder.



Return of Confidential Information. Upon request, each party will promptly return (or destroy with
the other party’s consent) all copies of the other’s Confidential Information in its possession or
control. However, returning and/or destroying said Confidential Information will not relieve a
party’s obligations under this Confidentiality Section.




Definitions.



“Confidential Information” means any and all:





	 	•	 	Of a party’s (and its Affiliates’) materials and information furnished to or accessed
by the other party (or its Representatives) in connection with this Agreement
(including, formulae, methods, know how, processes, designs, functional specifications
and customer, product, employee, supplier, marketing, sales, financial, pricing, and
other information concerning business operations, practices, activities and other
information) identified as, or by its nature and content should reasonably be understood
as, confidential or proprietary;
	 
	 	•	 	analyses, compilations, data or other documents that either party or its
Representatives prepare that contain or are based upon any Confidential Information; and
	 
	 	•	 	terms of this Agreement.
	 
	 	 	 	(in each case, whether furnished, accessed or prepared before or after this Agreement).




“Representatives” means an entity’s directors, officers, employees, agents or representatives with
a need to know (including attorneys, accountants, consultants and financial advisors).




 









 







Use of Name. You may not use our name for your own advertising or other purposes without our prior
review of and written consent to such use. If we consent to such use, you may use such only in
accordance with the approved manner and we may revoke such consent for any reason upon written
notice to you for any continued use.



CONFLICT OF INTEREST. Neither party’s employees may receive or provide any gift (monetary or not)
from or to any source (whether the party, its Affiliates or its employees) in connection with this
Agreement. Any question concerning acceptable conduct of either party’s employees should be
brought to the attention of the President of each party.



FURTHER ASSURANCES. Each party will take, or cause to be taken, any other action that may be
reasonably necessary to effect the transactions contemplated by this Agreement.



MISCELLANEOUS. With respect to this Agreement:





	•	 	[...***...]
	 
	•	 	Binding Agreement. The parties and their successors and permitted assigns will be bound
and benefited.
	 
	•	 	Third Party Beneficiaries. No one will be a third party beneficiary (except as the
Indemnification Section provides).
	 
	•	 	Entire Agreement. The terms of this Agreement shall be deemed accepted by Supplier at
Supplier’s written agreement to be bound by these terms. This Agreement and any other
documents expressly incorporated by reference constitute the parties’ entire understanding on
these matters and supersede any prior understanding or agreement. To the extent of conflict,
the provisions of the following documents will control in the following order: the letter
agreement, these Terms of Business and any other document (including any invoice, billing
statement, confirmation, receipt, bill of lading or other similar document relating to any
Goods rendered hereunder, subject to the “Ordering” section above). This Agreement and all
provisions herein may not be waived, released, discharged, abandoned, or modified in any
manner except by a subsequent written instrument duly executed by the parties hereto.
	 
	•	 	Titles and Headings. Titles and headings to sections herein are inserted for the
convenience of reference only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.
	 
	•	 	Definitions.






General: The word “including” (in its various forms) means “including without limitation.”
Unless otherwise specifically indicated, the symbol “$” refers to dollars of the United
States of America.




“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is
controlled by, or is under common ownership or control with another person or entity. As
used herein, “control” means the power to direct the management or affairs of any entity, and
“ownership” means the beneficial ownership of 50% or more of the voting equity securities or
other equivalent voting interests of the entity.




“Bankruptcy” means an entity (1) makes an assignment for the benefit of creditors; (2) files
a voluntary petition in bankruptcy; (3) is adjudicated a bankrupt or insolvent; files any
petition or answer seeking reorganization, arrangement, liquidation or similar relief; (4) or
files an answer admitting the material allegations of a petition against it for any such
relief; (5) dissolves, or ceases to do business; or (6) has any proceeding against it seeking
reorganization, arrangement, liquidation, or similar relief not dismissed within 60 days
after it begins.




“Intellectual Property” means any and all right, title, and interest in and to any and all
intellectual property, proprietary and other related rights (including, but not limited to,
inventions, work of authorship, patent applications, patents, trade secrets, copyrights,
trademarks, trade dress and designs, industrial designs, domain names), whether registered or
unregistered (also including, where applicable, rights to enforce violations of rights of
publicity or privacy and rights against piracy, plagiarism, libel, slander, defamation,
unfair competition, idea misappropriation or breach of any confidentiality obligation or
other contractual rights).



*** CONFIDENTIAL TREATMENT REQUESTED




 









 









“Laws” means all applicable laws of the jurisdiction in which Purchaser is located or is
otherwise subject including all federal, state, provincial, municipal and local laws,
statutes, legislation, regulations, rules and codes.




	•	 	Expenses. Except as otherwise stated, the parties will bear their own costs and expenses.
	 
	•	 	Applicable Law. The laws of New York will govern construction, interpretation and
enforcement of this Agreement, without regard to principles of conflict or choice of law
provisions. Each party consents to personal jurisdiction and venue in New York or Delaware
federal or Delaware state courts.
	 
	•	 	Controlling Language. This Agreement and any other documents expressly incorporated by
reference shall be written and construed in the English language. In the event of a
discrepancy between the English language version of the Agreement and any translated versions
thereof, the English language version shall govern.
	 
	•	 	Notices. Notices must be in writing and either (1) hand-delivered, or sent by (2) prepaid
certified mail (return receipt requested), (3) nationwide overnight courier or (4) confirmed
facsimile transmission, to the attention of the officer signing the Agreement in accordance
with the address and facsimile information provided on the signature page herein. Notices
will be effective upon receipt.
	 
	•	 	Parties’ Relationship. The parties are independent contractors, and shall not be deemed an
agent, partner, co-employer, joint employer or employee of the other. Neither party has any
right or any other authority to enter into any contract or undertaking in the name of or for
the account of the other or to assume or create any obligation of any kind, express or
implied, on behalf of the other, nor will the acts or omissions of either party hereto create
any liability for the other. Supplier shall have exclusive control and direction of
Supplier’s employees engaged in performance hereunder. Supplier assumes full responsibility
for the payment of local, state, provincial and federal payroll taxes or contributions or
taxes for unemployment insurance, old age pensions, worker’s compensation, or other Social
Security and related protection with respect to Supplier’s employees engaged in the
performance hereunder and agrees to comply with applicable rules and regulations promulgated
under such laws.
	 
	•	 	Severability. If any one or more of the provisions contained in this Agreement, in whole
or in part, is for any reason held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect the validity of any remaining
provision or portion thereof, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had not been contained herein.
	 
	•	 	Survival. The following provisions shall survive the termination or expiration of this
Agreement: Warranties, Indemnification, Insurance, Intellectual Property, Confidentiality and
any other provision of this Agreement or obligation of a party which expressly or by its
nature or context arises at, or is intended to continue beyond termination or expiration, will
so survive.
	 
	•	 	Setoff.  Each party may set off any amount owed to it by the other party against
any amount it owes to the other party under this Agreement.
	 
	•	 	Cumulative Remedies. Except where specifically stated otherwise, a party’s rights and
remedies under this Agreement or at law or in equity are, to the extent permitted by law,
cumulative and not exclusive of any other right or remedy now or hereafter available under
this Agreement or at law or in equity. Neither asserting a right nor employing a remedy shall
preclude the concurrent assertion of any other right or employment of any other remedy.
	 
	•	 	Waiver. The delay in or failure of any party hereto to enforce at any time any of the
provisions of this Agreement shall in no way be construed to be a waiver of any such
provision, or in any way to affect the validity of this Agreement or any part thereof or the
right of any party thereafter to enforce each and every such provision. No waiver of any
breach of this Agreement shall be held to be a waiver of any other or subsequent breach.
	 
	•	 	Counterparts. This Agreement may be executed in multiple counterparts, each of which will
be deemed an original, but all of which will constitute one and the same Agreement. Signature
pages from any counterpart may be appended to any other counterpart to assemble fully executed
counterparts. Counterparts of this Agreement also may be exchanged via fax, and a faxed
signature will be deemed an original for all purposes.
	 
	•	 	UN Convention on the International Sale of Goods. The United Nations Convention on
Contracts for the International Sale of Goods is specifically excluded from application to
this Agreement.
	 
	•	 	[...***...]





*** CONFIDENTIAL TREATMENT REQUESTED




 









 







Each party hereby agrees to the above by having a duly authorized officer sign below and returning
an executed copy to the other via facsimile at the below fax number.




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	 	 	 	 	 	 
	ACCEPTED AND AGREED:


Purchaser(s):	 	 	 	ACCEPTED AND AGREED:


Supplier:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	American Bottling Company

(Purchaser Name)	 	 	 	CROWN Cork & Seal USA, Inc.

(Supplier Name)	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ Derry Hobson	 	 	 	By:	 	/s/ Thomas T. Fischer	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:

Title:

Date:
	 	Derry Hobson

EVP

4-7-2009
	 	 	 	 	 	Name:

Title:

Date:
	 	Thomas T. Fischer

Vice-President Sales & Marketing

4/8/2009	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Address for Legal Notices:

Dr Pepper Snapple Group, Inc.

900 King Street

Rye Brook, NY 10573

Fax: 914-612-6302

Attn: Lisa M. Dalfonso, VP Assistant General

Counsel	 	 	 	Address for Legal Notices:

CROWN Cork & Seal USA, Inc.

One Crown Way

Philadelphia, PA 19154-4599

Fax: 215-698-6061

Attn: General Counsel	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

Address for Business Notices:

Dr Pepper Snapple Group, Inc.

5301 Legacy Drive

Plano, TX 75024

Fax: 972-673-6922

Attn: Jose Feito, VP Supply Chain Procurement	 	 	 	Address for Business Notices:

CROWN Cork & Seal USA, Inc.

One Crown Way

Philadelphia, PA 19154-4599

Fax: 215-698-6061

Attn: General Counsel