Exhibit 10.2
AMENDED AND RESTATED
EXCLUSIVE DISTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED EXCLUSIVE DISTRIBUTION AGREEMENT (the
"Agreement") is made and entered into as of August __, 2010, to be effective as
of August 31, 2009 (the "Effective Date"), by and between THE ELECTRIC BEVERAGE
COMPANY, INC., a Florida corporation (the "Manufacturer"); TITLE BEVERAGE
DISTRIBUTION, INC., a Florida corporation (the "Distributor"); and BLUE GEM
ENTERPRISE, INC., a Florida corporation ("Blue Gem"), each a "Party" and
collectively the "Parties."
BACKGROUND
Manufacturer is engaged in the manufacture and sale of certain enhanced
water products specified in Section 2 below (as hereinafter further defined, the
"Products");
Manufacturer has the exclusive right to utilize the trademark "TITLE" (the
"Marks") in connection with the Products.
Manufacturer and Distributor previously entered into an Exclusive
Distribution Agreement on or around June 1, 2009, a copy of which is attached
hereto asExhibit A (the "Prior Agreement"), pursuant to which Distributor agreed
to warehouse and distribute the Products to beverage wholesalers and retailers
throughout the United States (the "Territory").
On or around December 8, 2009, Blue Gem entered into a Letter of Intent to
acquire Distributor, a copy of which is attached hereto as Exhibit B (the
"LOI").
Pursuant to the LOI Blue Gem and Distributor have negotiated and
entered into a Share Exchange Agreement, pursuant to which Blue Gem will acquire
ownership of Distributor and Distributor will become a wholly-owned subsidiary
of Blue Gem (the "Share Exchange"), which Share Exchange is scheduled to close
as soon as certain closing conditions are met, including an SEC approved audit
of Distributor, which audit has not been completed to date.
Distributor has been unable to meet certain minimum distribution
requirements as set forth in the Prior Agreement (the "Minimum Requirements")
and Manufacturer has requested advance payment for certain Products from
Distributor.
From May 1, through July 16, 2010, Blue Gem, on behalf of Distributor and
in anticipation of the Share Exchange, both in an effort to secure and protect
its future rights under the Prior Agreement, following the Share Exchange, and
the relationship between Distributor and Manufacturer (the "Protective
Reasons"), paid $1,015,000 to Manufacturer (the "Pre-Payment"), in consideration
for the pre-payment of certain Products which Manufacturer has agreed to produce
and supply to Distributor subsequent to the date of such payment (the "Pre-Paid
Products"), which Pre-Paid Products will include Products as set forth on
Schedule A, and such additional Products as may become subject to this Agreement
as set forth in Section 2(b) below, in such proportions as determined by
Distributor and Manufacturer in their mutual agreement in a total value (as
calculated pursuant to the "Cost to Distributor" of such products as set forth
on Schedule A, as it may be amended from time to time, the "Distributor's Cost")
equal to the Pre-Payment.
On or around _________, 2010, Blue Gem advanced $700,000 to Distributor in
order for Distributor to meet its ongoing operating expenses for the Protective
Reasons (the "$700,000 Advance").
Concurrent with the Parties entry into this Agreement, Blue