be construed as, or give rise to any express or implied
distribution agreement, course of conduct or other relationship between HBC and
Distributor, (ii) shall not confer upon Distributor or its
sub-distributor(s) any rights of any nature whatsoever, including without
limitation to purchase and/or Transfer or continue to purchase and/or Transfer
any products, including Products, or use the Trademarks other than with respect
to products sold and delivered by HBC to Distributor, and (iii) shall constitute
a separate transaction for each shipment of products actually delivered by HBC
to Distributor and/or sub-distributor(s), in HBC's sole and absolute discretion,
which HBC shall be entitled to exercise, vary, withdraw and/or cease, on a case
by case basis, at any time in HBC's sole and absolute discretion.
Distributor
irrevocably waives, releases and discharges any claims, liabilities, actions and
rights, in law or in equity, against HBC including without limitation for
damages (including without limitation, consequential, special or punitive
damages), compensation or severance payments or any other claims of whatsoever
nature by Distributor arising from or in connection with the matters referred to
in this Section 2.c. and/or any acts, omissions or conduct of HBC with regard to
such matters.
d.
Distributor has agreed to acquire certain distribution rights
held by prior HBC distributors ("Prior Distributor Rights") for the Territory by
paying an amount which Distributor and HBC have agreed shall be calculated in
accordance with the formula set forth in Exhibit E hereto.
As soon as
practicable after the Effective Date, HBC shall calculate the estimated amount
payable by Distributor in accordance with the formula agreed to between
Distributor and HBC as set forth in Exhibit E hereto, which shall be calculated
based upon the estimated Sale Volume (as defined below) for the Territory for
the period ended December
2
31, 2008 (the "Estimated Buy-Out Contribution").
No later than fifteen (15)
days prior to the Commencement Date, Distributor shall deliver to HBC an amount
equal to the Estimated Buy-Out Contribution.
As soon as practicable after
December 31, 2008, HBC shall determine the actual Sale Volume for the Territory
for the period ended December 31, 2008 in order to calculate the final amount
due by Distributor in accordance with the formula set forth in Exhibit E (the
"Final Buy-Out Contribution"). Distributor shall be and remain obligated to pay
to HBC any shortfall between the Final Buy-Out Contribution and the amount
received by HBC for the Estimated Buy-Out Contribution and HBC shall pay to
Distributor the amount by which the Estimated Buy-Out Contribution actually
received by HBC exceeds the amount of the Final Buy-Out Contribution. The
parties acknowledge and agree that in determining the Final Buy-Out Contribution
it will be necessary for HBC to make allocations and estimates of the Sales
Volumes of the Products based upon such information as may be made available to
it by prior HBC distributor.
HBC agrees that in making any such allocations or
estimates it shall be required to and shall act reasonably and in good faith.
HBC