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 without cause or terminated by HBC or MEL, as the case
may be, as a result of a breach by Distributor then HBC 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 HBC
to Distributor.
Any such termination shall be effective upon Distributor's
receipt of HBC's written notice of termination, and HBC shall not be liable to
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. HBC's right to
terminate this Agreement under this Section 12.a.(ii)(C) shall be independent of
any other rights or remedies of HBC under this Agreement.
The "Concurrent
Agreements" mean (i) the Monster Energy International Distribution Agreement
dated concurrently herewith between Tauranga Ltd., an Irish company ("MEL") and
Coca-Cola Enterprises Inc., a Delaware corporation ("CCE"), (ii) the Monster
Energy Belgian Distribution Agreement dated concurrently herewith between MEL
and CCE, and (iii) the Monster Energy Distribution Agreement dated concurrently
herewith between HBC and CCE.
(iii)
Termination by Distributor. Distributor may terminate this
Agreement at any time:
(A)
If HBC fails to deliver to Distributor at least
***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 HBC written notice of such failure and HBC has
failed to remedy such deficiency within thirty (30) days of HBC's receipt of
such notice; and
***
Portions hereof have been omitted and filed separately with the Securities
and Exchange Commission pursuant to a request for confidential treatment in
accordance with Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
9
(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 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 one
hundred twenty (120) days of the occurrence of such termination by written
notice by Distributor