shall provide to Distributor copies of the written records relied upon by
HBC to reasonably allocate, estimate and determine the Final Buy-Out
Contribution, for review by Distributor, and Distributor hereby agrees to
maintain such information and records in strict confidence. The Final Buy-Out
Contribution paid by Distributor to HBC shall be used by HBC to acquire or
terminate the Prior Distributor Rights and any shortfall necessary to accomplish
that goal shall be borne by HBC and any excess shall be paid to and/or retained
by HBC.
"Sale Volume" means the aggregate number of cases of Products sold and
to be sold by any prior distributors and to be sold by Distributor in the
Territory or referenced portion thereof during the twelve (12) month period
ended on a referenced date.
For the avoidance of doubt, HBC shall acquire or
terminate the Prior Distributor Rights and bear the deficiency, if any, between
the amount of the Final Buy-Out Contribution and the cost of acquiring or
terminating the Prior Distributor Rights, whether or not the Final Buy-Out
Contribution is sufficient.
e.
HBC may from time to time designate additional territory
("Additional Territory"), which HBC reasonably determines to be within such
proximity to the Territory as to make incorporation of the Additional Territory
desirable.
If HBC gives Distributor written notice of such designation of
Additional Territory, Distributor shall use its commercially reasonable good
faith efforts to add the Additional Territory by execution of an amendment of
Exhibit B to this Agreement if Distributor has other distribution activities in
the Additional Territory.
f.
The parties acknowledge that it is their current mutual
intention that they will consider in due course entering into a written
agreement on mutually acceptable terms to provide for the manufacture of certain
Products in the Territory. This subsection 2.f shall not be enforceable against
either party unless and until an enforceable agreement has been executed by both
parties.
g.
With effect from the Commencement Date, Distributor appoints CCL,
and CCL accepts appointment, as a provider of the services set forth in
Section 6.b of this Agreement with respect to the Products only to Distributor's
Accounts within the Territory.
3.
Distributor's Duties.
Distributor shall:
a.
Use commercially reasonable good faith efforts to aggressively
promote, solicit and push vigorously the wide distribution and sale of the
Products to Distributor's Accounts in the Territory (except to accounts reserved
for HBC pursuant to Exhibit C and those National Accounts (as defined below)
that are serviced directly by HBC in accordance with Section 14).
Distributor
shall allocate and devote thereto at least such resources and efforts as are
proportional to the volume that Distributor's sales of Products in the Territory
represent to the volume of Distributor's sales of the principal (Flagship) brand
of Energy Drinks (including energy colas) of KO, Distributor and their
respective affiliates from time to time in the Territory.
Without detracting
from the foregoing, the resources and efforts that Distributor shall allocate
and devote to the promotion, marketing and distribution of the Products