KO.
(B) In the event that Distributor fails to achieve the Performance Targets
(defined and determined from time to time in accordance with the provisions of
Section 13.d. below) for any calendar year, provided MEL has delivered to
Distributor written notice of the failure to achieve a Performance Target and
Distributor has failed to remedy the deficiency within ninety (90) days of
Distributor's receipt of such notice, as determined by the Reports (as defined
in Section 13.d.(i)) for the most recent four (4) week period immediately
preceding the expiration of such ninety (90) day notice period.
(C) If all or any of the Concurrent Agreements (as defined below) are terminated
by Distributor or Coca-Cola Bottling Company, a Nova Scotia corporation
("CCBC"), without cause or terminated by HBC or MEL, as the case may be, as a
result of a breach by Distributor or CCBC, as the case may be, then MEL shall
have the option to terminate this Agreement, which option may be exercised
within one hundred twenty (120) days of the occurrence of such termination, by
written notice by MEL to Distributor.
Any such termination shall be effective
upon Distributor's receipt of MEL's written notice of termination, and MEL shall
not be liable to
9
Distributor or otherwise obligated to pay to Distributor any severance payment
or other amount by reason of such termination for compensation, reimbursement or
damages of whatsoever nature including, for (i) loss of prospective compensation
or earnings, (ii) goodwill or loss thereof, or (iii) expenditures, investments,
leases or any type of commitment made in connection with the business of
Distributor or in reliance on the existence of this Agreement.
MEL's right to
terminate this Agreement under this Section 12.a.(ii)(C) shall be independent of
any other rights or remedies of MEL under this Agreement.
The "Concurrent
Agreements" mean (i) the Monster Energy Distribution Agreement dated
concurrently herewith between HBC and Distributor, (ii) the Monster Energy
Canadian Distribution Agreement dated concurrently herewith between HBC and
CCBC, and (iii) the Monster Energy Belgian Distribution Agreement dated
concurrently herewith between MEL and Distributor.
(iii).
Termination by Distributor.
Distributor may terminate this
Agreement at any time:
(A)
If MEL fails to deliver to Distributor at
*** percent
*** of the
aggregate volume of all Products ordered by Distributor in accordance with
Sections 5 and 8 above over a continuous period of ninety (90) days after the
initial due date/s for delivery in accordance with Section 8.b. above, provided
Distributor has delivered to MEL written notice of such failure and MEL has
failed to remedy such deficiency within thirty (30) days of MEL's receipt of
such notice; and
(B) If all or any of the Concurrent Agreements are terminated by HBC or MEL, as
the case may be, without cause or terminated by Distributor or CCBC, as the case
may be, as a result of HBC's or MEL's breach, as the case may be, then
Distributor shall have the option to terminate this Agreement, which option may
be exercised within