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EXHIBIT 10.33
BOTTLER'S AGREEMENT
THIS BOTTLER'S AGREEMENT (the "Agreement") is entered into with effect from
July 26, 1996, by and among THE COCA-COLA COMPANY, a corporation organized
and existing under the laws of the State of Delaware, U.S.A., with principal
offices at One Coca-Cola Plaza, N.W., in the City of Atlanta, State of
Georgia, U.S.A.; THE COCA-COLA EXPORT CORPORATION, a corporation organized
and existing under the laws of the State of Delaware, U.S.A., with principal
offices at One Coca-Cola Plaza, N.W., in the City of Atlanta, State of
Georgia, U.S.A. (The Coca-Cola Company and The Coca-Cola Export Corporation
hereinafter collectively or severally referred to as the "Company" unless
otherwise specified); and Coca-Cola Beverages S.A., a corporation organized
and existing under the laws of the Republic of France with principal offices
at Le Ponant de Paris, 00 xxx Xxxxxxx, 00000, Xxxxx, Xxxxx 00, Xxxxxx
(hereinafter referred to as the "Bottler").
W I T N E S S E T H:
WHEREAS,
A. The Company is engaged in the manufacture and sale of certain
concentrates and beverage bases (hereinafter referred to as the
"Beverage Bases"), the formulae for which are industrial secrets of The
Coca-Cola Company, from which non-alcoholic beverage syrups
(hereinafter referred to as the "Syrups") are prepared, and is also
engaged in the manufacture and sale of the Syrups, which are used in
the preparation of certain non-alcoholic beverages which are more fully
described in Appendix I (hereinafter referred to as the "Beverages")
and which are offered for sale in bottles and other containers and in
other forms or manners.
B. The Coca-Cola Company is the owner of the trademarks set forth in
Appendix II that distinguish the said Beverage Bases, Syrups and
Beverages and is also the owner of various trademarks consisting of
distinctive containers in various sizes in which the Beverages have
been marketed for many years and of the trademarks consisting of
Dynamic Ribbon devices which are used in the advertising and marketing
of certain of the Beverages (all of the said trademarks being
collectively or severally referred to hereinafter as the "Trademarks").
C. The Coca-Cola Company has designated and authorized certain third
parties to manufacture the Beverage Bases for sale to duly appointed
bottlers (said third parties being hereinafter referred to as
"Authorized Suppliers").
D. The Company has the right to authorize third parties to prepare,
package, distribute or sell the Beverages in France.
E. The Bottler desires to prepare and package the Beverages for
distribution and sale in and throughout a territory defined and
described in this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
I. AUTHORIZATION
1. The Company hereby authorizes the Bottler, and the Bottler undertakes,
subject to the terms and conditions contained herein, to prepare and
package the Beverages in authorized containers, and to distribute and
sell the same under the Trademarks, in and throughout the territory
which is defined and described in Appendix III (hereinafter referred to
as the "Territory").
2. The Company shall, during the term of this Agreement, in its
discretion, approve for each of the Beverages the container types,
sizes, shapes and other distinguishing characteristics (hereinafter
referred to as "Authorized Containers") which the Bottler is authorized
to use under this Agreement for the packaging of each of the Beverages.
The list of Authorized Containers in respect of each of the Beverages
as of the effective date hereof is set forth in Appendix IV. The
Company may, by giving written notice to the Bottler, authorize the
Bottler to use additional Authorized Containers in the preparation,
distribution and sale of one or more of the Beverages. Except as
provided in Appendix IV, the Company under this Clause 2 further
reserves the right to cancel its authorization of each of the
Authorized Containers for any of the Beverages upon six (6) months'
written notice to the Bottler. It is recognized among the parties
hereto that the Company will exercise its right to cancel its
authorization in respect of any of the Authorized Containers in good
faith so as to enable the Bottler to prepare, package, distribute and
sell the Beverages under this Agreement. In the event of such
cancellation, the provisions of Clause 29(c) shall apply to containers
in respect of which authorization has been cancelled.
3. The Schedules, if any, attached hereto identify the nature of the
supplemental authorizations which may be granted from time to time to
the Bottler pursuant to this Agreement and govern the particular rights
and obligations of the parties in respect of the supplemental
authorizations.
II. OBLIGATIONS OF THE COMPANY
4. The Company or Authorized Suppliers will sell and deliver to the
Bottler such quantities of the Beverage Bases as may be ordered by the
Bottler from time to time, provided that:
(a) the Bottler will order, and the Company or Authorized
Suppliers will sell and deliver to the Bottler, only such
quantities of the Beverage Bases as may be necessary and
sufficient to implement this Agreement; and
(b) the Bottler will use the Beverage Bases exclusively for the
preparation of the Beverages as
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prescribed from time to time by the Company, and the Bottler
undertakes not to sell the Beverage Bases nor permit the same
to fall into the hands of third parties without the prior
written consent of the Company.
The Coca-Cola Company shall retain the sole and exclusive right at any
time to determine the formulae, composition or ingredients for the
Beverages and the Beverage Bases.
5. The Company, for the term of this Agreement, except as provided for in
Clause 11, will refrain from distributing or selling or from
authorizing third parties to distribute or sell throughout the
Territory the Beverages in Authorized Containers, reserving the
rights, however, to prepare and package the Beverages in Authorized
Containers in the Territory for sale outside the Territory and to
prepare, package, distribute and sell or authorize third parties to
prepare, package, distribute or sell the Beverages in the Territory
in any other manner or form.
III. OBLIGATIONS OF THE BOTTLER RELATIVE TO MARKETING
OF THE BEVERAGES, FINANCIAL CAPACITY AND PLANNING
6. The Bottler shall have a continuing obligation to develop, stimulate
and satisfy fully the demand for each of the Beverages within the
Territory. The Bottler therefore covenants and agrees with the Company:
(a) to prepare, package, distribute and sell such quantities of
each of the Beverages as shall in all respects satisfy fully
every demand for each of the Beverages within the Territory;
(b) to make every effort and to employ all proven, practical and
approved means to develop and exploit fully the potential of
the business of preparing, packaging, marketing and
distributing each of the Beverages throughout the Territory by
creating, stimulating and expanding continuously the future
demand for each of the Beverages and by satisfying fully and
in all respects the existing demand therefor;
(c) to invest all the capital and incur all expenses required for
the organization, installation, operation, maintenance and
replacement within the Territory of such manufacturing,
warehousing, marketing, distribution, delivery, transportation
and other facilities and equipment as shall be necessary to
implement this Agreement;
(d) to provide competent and well-trained management, and to
recruit, train, maintain and direct all personnel required,
sufficient in every respect, to perform all of the obligations
of the Bottler under this Agreement;
(e) not to sell and/or distribute the Beverages, without the prior
written consent of the Company, outside the Territory or to
anyone who intends to resell the Beverages outside the
Territory; the foregoing prohibition does not apply if the
Territory is a Member State or within a Member State of the
European Economic Area and the sale results from an order from
a customer in another Member State or for export to another
Member State;
(f) not to actively seek customers nor maintain a branch outside
the Territory; however, the Bottler shall have the right to
fill unsolicited orders for the Beverages from any customer
located within another Member State or for export to another
Member State of the European Economic Area.
7. The parties agree that, to develop and stimulate demand for each of the
Beverages, advertising and other forms of marketing activities are
required. The Bottler agrees, therefore, to spend such funds for the
advertising and marketing of the Beverages as may be required to
maintain and to increase the demand for each of the Beverages in the
Territory. The Company may, in its sole discretion, contribute to such
advertising and marketing expenditures. The Company may also undertake
at its own expense any advertising or promotional activity that the
Company deems appropriate to conduct in the Territory, but this shall
in no way affect the obligations of the Bottler to spend funds for the
advertising and marketing of each of the Beverages so as to stimulate
and develop the demand for each of the Beverages in the Territory.
8. The Bottler shall submit to the Company, for its prior approval, all
advertising and all promotions relating to the Trademarks or the
Beverages and shall use, publish, maintain or distribute only such
advertising or promotional material relating to the Trademarks or to
the Beverages as the Company shall approve and authorize.
9. The Bottler shall maintain the consolidated financial capacity
reasonably necessary to assure that the Bottler will be capable of
performing its obligations under this Agreement. The Bottler shall
maintain accurate books, accounts and records and shall provide to the
Company, upon the Company's request, such financial and accounting
information as shall enable the Company to determine the Bottler's
compliance with its obligations under this Agreement.
10. The Bottler covenants and agrees:
(a) to deliver to the Company once in each calendar year a program
(hereinafter referred to as the "Annual Program") which shall
be acceptable to the Company as to form and substance. The
Annual Program shall include but shall not be limited to the
marketing, management, financial, promotional and advertising
plans of the Bottler showing in detail the activities
contemplated for the ensuing twelve-month period or such other
period as the Company may prescribe. The Bottler shall
prosecute diligently the Annual Program and shall report
quarterly or at such other intervals as the Company may
request in connection with the implementation of the Annual
Program;
(b) to report on a monthly basis, or at such other intervals as
the Company may request, to the Company, sales of each of the
Beverages in such detail and containing such information as
may be requested by the Company.
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11. The Bottler recognizes that the Company has entered into or may enter
into agreements similar to this Agreement with other parties outside
the Territory and accepts the limitations such agreements may
reasonably impose on the Bottler in the conduct of its business under
this Agreement. The Bottler further agrees to conduct its business in
such manner as to avoid conflicts with such other parties, and in the
event of disputes nevertheless arising with such other parties, to make
every effort to settle them amicably. The Bottler will not oppose
without valid reason any additional measures the adoption of which is
considered by the Company as necessary and justified in order to
protect and improve the sales and distribution system for the
Beverages; for instance, those which might be adopted concerning the
supply of large and/or special buyers whose field of activity
transcends the boundaries of the Territory - even if such measures
should entail a restriction of the Bottler's rights or obligations
within reasonable limits not affecting the substance of this Agreement,
including measures taken in compliance with the Rules of Competition of
the European Economic Area.
12. (a) The Bottler, recognizing the important benefit to itself
and all the other parties referred to in Clause 11 above, of a
uniform external appearance of the distribution and other
equipment and materials used under this Agreement, agrees to
accept and apply the standards adopted and issued from time to
time by the Company for the design and decoration of trucks
and other delivery vehicles, cases, cartons, coolers, vending
machines and other materials and equipment used in the
distribution and sale of the Beverages under this Agreement.
(b) The Bottler further agrees to maintain and to replace such
equipment at such intervals as are reasonably necessary and
not to use such equipment to distribute or sell any products
which are not identified by the Trademarks without the prior
written consent of the Company.
13. (a) In the event any of the Beverages prepared, packaged,
distributed or sold by the Bottler are found either in the
territory of another bottler authorized by the Company to
distribute and sell the Beverages in a territory within
France or in a territory within a state that is not a
Member State of the European Economic Area (hereinafter the
"Injured Bottler") then, in addition to all other remedies
available to the Company:
(1) the Company may charge the Bottler an amount of
compensation for the Beverages found in the Injured
Bottler's territory to include all lost profits,
expenses and other costs incurred by the Company and
the Injured Bottler;
(2) the Company may purchase any of the Beverages
prepared, packaged, distributed or sold by the
Bottler which are found in the Injured Bottler's
territory, and the Bottler shall, in addition to any
other obligation it may have under this Agreement,
reimburse the Company for the Company's cost of
purchasing, transporting and/or destroying such
Beverages; and
(3) if the phenomenon persists or reoccurs after the
Company has requested the Bottler, in writing, to end
or prevent it, by discharging the Bottler's
obligation under Clauses 6(e) and (f), the Company
may, in its sole discretion, cancel forthwith the
authorization for the Authorized Container(s) of the
type which were found in the Injured Bottler's
territory.
(b) In the event that Beverages prepared, packaged, distributed or
sold by the Bottler are found in the territory of an Injured
Bottler, the Bottler shall make available to representatives
of the Company all sales agreements and other records relating
to such Beverages and assist the Company in all investigations
relating to the sale and distribution of such Beverages
outside the Territory.
(c) The Bottler shall immediately inform the Company if at any
time any solicitation or offer to purchase Beverages is made
to the Bottler by a third party which the Bottler knows or has
reason to believe or suspect would result in the Beverages
being marketed, sold, resold, distributed or redistributed
outside the Territory in breach of Clauses 6(e) and (f) of
this Agreement.
IV. OBLIGATIONS OF THE BOTTLER RELATIVE TO THE TRADEMARKS
14. The Bottler recognizes the validity of the Trademarks and the ownership
thereof by The Coca-Cola Company.
15. Nothing herein shall give the Bottler any interest in the Trademarks or
the goodwill attaching thereto or in any label, design, container or
other visual representations thereof or used in connection therewith.
It is agreed and understood by the parties that there is extended to
the Bottler under this Agreement a mere temporary permission uncoupled
with any right or interest and without payment of any fee or royalty
charge, to use said Trademarks, labels, designs, containers or other
visual representations thereof, only in connection with the
preparation, packaging, distribution and sale of the Beverages in
Authorized Containers; said use to be in such manner and with the
result that all goodwill relating to the same shall accrue to The
Coca-Cola Company as the source and origin of such Beverages, and the
Company shall be absolutely entitled to determine in every instance the
manner of presentation and such other steps necessary or desirable to
secure compliance with this Clause 15.
16. The Bottler shall not adopt or use any name, corporate name, trading
name, title of establishment or other commercial designation which
includes the words "Coca-Cola", "Coca", "Cola", "Coke" or any of them
or any name that is confusingly similar to any of them or any graphic
or visual representation of the Trademarks or any other trademark or
industrial property owned by The Coca-Cola Company, without the prior
written consent of The Coca-Cola Company.
17. The Bottler undertakes in accordance with applicable law:
(a) during the term of this Agreement and for a period of two (2)
years after its termination not to prepare, package,
distribute, sell, deal in or in any manner whatsoever be
concerned with any concentrate, syrup or beverage which is
likely to be passed off for or appear as an imitation of the
Beverage Bases, the Syrups or the Beverages;
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(b) not at any time to prepare, package, distribute, sell, deal in
or otherwise be concerned with any product under any get-up or
in any container which is an imitation of the get-up or
container used by the Company, or which is likely to be
confused or used in unfair competition therewith;
(c) not at any time to prepare, package, distribute, sell, deal in
or otherwise be concerned with any product under any trademark
or other designation which is an imitation or infringement of
the Trademarks; and without in any way limiting the generality
of the foregoing, it is expressly stipulated that use of the
words "Coca", "Coke" or "Coca-Cola" in any form or fashion, or
any graphic or phonetic rendering of them, on any product
other than that of The Coca-Cola Company, would constitute
such imitation, unfair competition or infringement.
The covenants herein contained apply not only to the operations
with which the Bottler may be directly concerned, but also to
operations with which the Bottler may be indirectly concerned
through ownership, control, management, partnership or in similar
manner whether located within or outside the Territory. The Bottler
covenants not to acquire or hold, directly or indirectly, any
ownership interest in, or enter into any contract or arrangement
with respect to the management or control of, any person or legal
entity, within or outside the Territory, that engages in any of the
activities prohibited under this Clause.
18. This Agreement reflects the mutual interest of the parties and in the
event that either:
(a) a third party which is, in the opinion of the Company,
directly or indirectly through ownership, control, management
or otherwise, concerned with the manufacture, preparation,
packaging, distribution or sale of any products specified in
Clause 17 hereof, shall acquire or otherwise obtain control or
any direct or indirect influence on the management of the
Bottler; or
(b) any real or legal person having majority ownership or direct
or indirect control of the Bottler or who is directly or
indirectly controlled either by the Bottler or by any third
party which has control or any direct or indirect influence,
in the opinion of the Company, on the management of the
Bottler, shall engage in the preparation, packaging,
distribution or sale of any products specified in Clause 17
hereof;
then the Company shall have the right to terminate this Agreement
forthwith unless the third party making such acquisition as specified
in subclause (a) hereof or the person, entity, firm or company referred
to in subclause (b) hereof shall, on being notified in writing by the
Company of its intention to terminate as
aforesaid, agree to discontinue, and shall in fact discontinue, the
manufacture, preparation, packaging, distribution or sale of such
products within a reasonable period not exceeding six (6) months from
the date of notification.
V. OBLIGATIONS OF THE BOTTLER RELATIVE TO THE PREPARATION
AND PACKAGING OF THE BEVERAGES
19. (a) The Bottler covenants and agrees with the Company to use,
in preparing the Syrups for each of the Beverages, only the
Beverage Bases purchased from the Company or Authorized
Suppliers and to use the Syrups only for the preparation and
packaging of the Beverages in strict adherence to and
compliance with the instructions issued to the Bottler from
time to time by the Company in writing. The Bottler further
covenants and agrees with the Company that in preparing,
packaging and distributing the Beverages the Bottler shall at
all times conform to the manufacturing standards, hygienic and
otherwise, established from time to time by the Company and
comply with all legal requirements, and the Bottler shall
permit the Company, its officers, agents and designees at all
times to enter and inspect the plant, facilities, equipment
and methods used by the Bottler in the preparation, packaging,
storage and handling of the Beverages, to ascertain whether
the Bottler is complying with the terms of this Agreement.
(b) The Bottler, recognizing the importance of identifying the
source of manufacture of the Beverages in the market, agrees
to use identification codes on all packaging materials for the
Beverages, including Authorized Containers and non-returnable
cases. The Bottler further agrees to install, maintain and use
the necessary machinery and equipment required for the
application of such identification codes. The Company shall
provide the Bottler, from time to time, with necessary
instructions, in writing, regarding the forms of the
identification codes to be used by the Bottler and the
production and sales records to be maintained by the Bottler.
(c) In the event the Company determines or becomes aware of the
existence of any quality or other technical problems relating
to any of the Beverages or Authorized Containers in respect of
any of the Beverages, the Company may require the Bottler to
take all necessary action to withdraw immediately any such
Beverages from the market. The Company shall notify the
Bottler by telephone, cable, telex, facsimile or any other
form of immediate communication of the decision by the Company
to require the Bottler to withdraw any such Beverages from the
market and the Bottler shall, upon receipt of such notice,
immediately cease distribution of such Beverages and take such
other action as may be required by the Company in connection
with the withdrawal of such Beverages from the market.
(d) In the event the Bottler determines or becomes aware of the
existence of quality or other technical problems relating to
any of the Beverages or Authorized Containers in respect of
any of the Beverages, then the Bottler shall immediately
notify the Company by
telephone, cable, telex, facsimile or any other form of
immediate communication. This notification shall include: (1)
identity and quantities of the Beverages involved, including
the Authorized Containers, (2) coding data and (3) any other
relevant data including data that will assist in tracing such
Beverages.
20. The Bottler shall submit to the Company, at the Bottler's expense,
samples of the Syrups, of the Beverages and of materials used in the
preparation of the Syrups and the Beverages in accordance with such
instructions as may be given in writing from time to time by the
Company.
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21. (a) In the packaging, distribution and sale of the Beverages,
the Bottler shall use only such Authorized Containers,
closures, cases, cartons, labels and other packaging materials
approved from time to time by the Company, and the Bottler
shall purchase such items only from manufacturers who have
been authorized by The Coca-Cola Company to manufacture the
items to be used in connection with the Trademarks and the
Beverages. The Coca-Cola Company shall use its best efforts to
approve two or more manufacturers of such items, it being
understood that said approved manufacturers may be located
within or outside the Territory.
(b) The Bottler shall inspect such Authorized Containers,
closures, cases, cartons, labels and other packaging materials
and shall use only those items which comply with the standards
established by applicable laws in the Territory in addition to
the standards and specifications prescribed by the Company.
The Bottler shall assume independent responsibility in
connection with the use of such Authorized Containers,
closures, cases, cartons, labels and other packaging materials
which conform to such standards.
(c) The Bottler shall maintain at all times a sufficient stock of
Authorized Containers, closures, labels, cases, cartons and
other packaging materials to satisfy fully the demand for each
of the Beverages in the Territory.
22. (a) The Bottler recognizes that increases in the demand for
the Beverages, as well as changes in the list of Authorized
Containers, may from time to time require modifications or
other changes in respect of its existing manufacturing,
packaging, delivery or vending equipment or require the
purchase of additional manufacturing, packaging, delivery or
vending equipment. The Bottler agrees, therefore, to make such
modifications to existing equipment and to purchase and
install such additional equipment as necessary with sufficient
lead time to enable the introduction of new Authorized
Containers and the preparation and packaging of the Beverages
in accordance with the continuing obligations of the Bottler
to develop, stimulate and satisfy fully every demand for each
of the Beverages in the Territory.
(b) In the event the Bottler uses refillable Authorized Containers
in the preparation and packaging of all or any of the
Beverages, the Bottler agrees to invest the necessary capital
and to appropriate and expend such funds as may be required
from time to time to establish and maintain an adequate
inventory of refillable Authorized Containers. In order to
ensure the continuing quality and appearance of the said
inventory of refillable Authorized Containers, the Bottler
further agrees to replace all or part of the said inventory of
refillable Authorized Containers as may be reasonably
necessary and in accordance with the obligations of the
Bottler hereunder.
(c) The Bottler agrees not to refill or otherwise reuse any
nonrefillable Authorized Containers that have been previously
used.
23. The Bottler shall be solely responsible in the carrying out of its
obligations hereunder for compliance with all regulations and laws
applicable in the Territory and shall inform the Company forthwith of
any such provision which would prevent or limit in any way the strict
compliance by the Bottler with its obligations hereunder.
VI. CONDITIONS OF PURCHASE AND SALE
24. The Bottler shall, in accordance with the provisions of this Agreement,
purchase the Beverage Bases required for the preparation and packaging
of the Beverages only from the Company or Authorized Suppliers.
25. (a) The Company reserves the right by giving notice to the
Bottler to establish in its sole discretion the prices of the
Beverage Bases, including the conditions of shipment and
payment and the currency or currencies acceptable to the
Company and its Authorized Suppliers in payment and to
designate one or more Authorized Suppliers, the supply point
and/or alternate supply points for each of the Beverage Bases.
(b) The Company reserves the right by giving written notice to the
Bottler to change the Authorized Suppliers and to revise from
time to time and at any time in its sole discretion the price
of any of the Beverage Bases, the conditions of shipment
(including the supply point) and the currency or currencies
acceptable to the Company or its Authorized Suppliers.
(c) If the Bottler is unwilling to pay the revised price in
respect of the Beverage Base for the Beverage "Coca-Cola",
then the Bottler shall so notify the Company in writing within
thirty (30) days from receipt of the written notice from the
Company revising the aforesaid price. In this event, this
Agreement shall terminate automatically three (3) calendar
months after receipt of the Bottler's notification.
(d) Except as provided in subclause (c) hereof in respect of the
Beverage Base for the Beverage "Coca-Cola", if the Bottler is
unwilling to pay the revised price in respect of the Beverage
Base(s) for any one or more of the other Beverages, then the
Bottler shall so notify the Company in writing within thirty
(30) days from receipt of the written notice from the Company
revising the aforesaid price or prices. In this event, the
Company, in its
discretion and with regard to the present and prospective
circumstances in the market, shall either (i) notify the
Bottler in writing that the Agreement shall terminate, in
which event this Agreement shall terminate three (3) calendar
months after the date of the Company's notice of termination
to the Bottler, or (ii) notify the Bottler in writing that the
Bottler's authorization in respect of that Beverage or those
Beverages for which the Bottler is unwilling to pay the
revised price is cancelled, such cancellation to be effective
three (3) calendar months after the date of the Company's
notice of such cancellation of authorization(s) to the
Bottler. In the event of the cancellation of an authorization
of a Beverage or Beverages pursuant to this subclause, the
provisions of Clause 29 shall apply in respect of that
Beverage or those Beverages, and, notwithstanding any other
provision of this Agreement, the Company shall have no further
obligation to the Bottler in respect of that Beverage or those
Beverages for
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which authorizations have been cancelled, and the Company
shall be entitled to prepare, package, distribute or sell, or
to grant authorizations to a third party to prepare, package,
distribute or sell, that Beverage or those Beverages in the
Territory.
(e) Any failure on the part of the Bottler to notify the Company
in respect of the revised price of any one or more of the
Beverage Bases pursuant to subclause (c) and (d) hereof shall
be deemed to be acceptance by the Bottler of the revised
price.
(f) The Bottler undertakes to collect from or charge to retail
outlets, for each refillable Authorized Container and each
returnable case delivered to the said retail outlets, such
deposits as the Company may determine from time to time by
giving written notice to the Bottler, and to make all
reasonably diligent efforts to recover all empty refillable
Authorized Containers and returnable cases and, upon recovery,
to refund or to credit the deposits for said refillable
Authorized Containers and returnable cases returned undamaged
and in good condition.
VII. DURATION AND TERMINATION OF AGREEMENT
26. (a) This Agreement shall be effective from July 26, 1996 and shall
expire, without notice, on July 26, 2006 unless it has been
earlier terminated as provided herein. It is recognized and
agreed among the parties hereto that the Bottler shall have no
right to claim a tacit renewal of this Agreement.
(b) If the Bottler has fully complied with all the terms,
covenants, conditions and stipulations of this Agreement
throughout its term and the Bottler is capable of the
continued promotion, development and exploitation of the full
potential of the business in the preparation, packaging,
distribution and sale of each of the Beverages, the Bottler
may request an extension of this Agreement for an additional
term of ten (10) years. The Bottler may request such extension
by giving written notice to the Company at least six (6)
months but not more than twelve (12) months prior to the
expiration date of this Agreement. The request by the Bottler
for such extension shall be supported by such documentation as
the Company may request including documentation relating to
the Bottler's compliance with the performance obligations
under this Agreement and including documentation supporting
the continued capability of the Bottler to develop, stimulate
and satisfy fully the demand for each of the Beverages within
the Territory. If the Bottler has, in the sole discretion of
the Company, satisfied the conditions for the extension of
this Agreement, then the Company may, by written notice, agree
to extend this Agreement for such additional term.
(c) At the expiration of any such additional term, this Agreement
shall expire finally without further notice, and the Bottler
shall have no right to claim a tacit renewal of this
Agreement.
27. (a) This Agreement may be terminated by the Company or the
Bottler forthwith and without liability for damages by written
notice given by the party entitled to terminate to the other
party:
(1) if the Company, the Authorized Suppliers or the
Bottler cannot legally obtain foreign exchange to
remit abroad in payment of imports of the Beverage
Bases or the ingredients or materials necessary for
the manufacture of the Beverage Bases, the Syrups or
the Beverages; or
(2) if any part of this Agreement ceases to be in
conformity with the laws or regulations applicable in
the country in which the Territory is located and, as
a result thereof, or as a result of any other laws
affecting this Agreement, any one of the material
stipulations herein cannot be legally performed or
the Syrups cannot be prepared, or the Beverages
cannot be prepared or sold in accordance with the
instructions issued by the Company pursuant to Clause
19 above, or if any of the Beverage Bases cannot be
manufactured or sold in accordance with the Company's
formulae or with the standards prescribed by it.
(b) This Agreement may be terminated forthwith by the Company
without liability for damages:
(1) if the Bottler becomes insolvent, or if a petition in
bankruptcy is filed against or on behalf of the
Bottler which is not stayed or dismissed within one
hundred and twenty (120) days, or if the Bottler
passes a resolution for winding up, or if a winding
up or judicial management order is made against the
Bottler, or if a receiver is appointed to manage the
business of the Bottler, or if the Bottler enters
into any judicial or voluntary scheme of composition
with its creditors or concludes any similar
arrangements with them or makes an assignment for the
benefit of creditors; or
(2) in the event of the Bottler's dissolution,
nationalization or expropriation, or in the event of
the confiscation of the
production or distribution assets of the Bottler.
28. (a) This Agreement may also be terminated by the Company or
the Bottler if the other party fails to observe any one or
more of the terms, covenants, or conditions of this Agreement,
and fails to remedy such default(s) within sixty (60) days
after such party has been given written notice of such
default(s).
(b) In addition to all other remedies to which the Company may be
entitled hereunder, if at any time the Bottler fails to follow
the instructions or to maintain the standards prescribed by
the Company or required by applicable laws in the Territory
for the preparation of the Syrups or the Beverages, the
Company shall have the right to prohibit the production of the
Syrups or the Beverages until the default has been corrected
to the Company's satisfaction, and the Company may demand the
withdrawal from the trade, at the Bottler's expense, of any
Beverages not in conformity with or not manufactured in
conformity with such instructions, standards or requirements,
and the Bottler shall promptly comply with such prohibition or
demand. During the period of such prohibition of production,
the Company shall be entitled to suspend deliveries of the
Beverage Bases to the Bottler and shall also be entitled to
supply, or to cause or permit others to supply, the Beverages
in
Bottler's Agreement Page 6
7
Authorized Containers in the Territory. No prohibition or
demand shall be deemed a waiver of the rights of the Company
to terminate this Agreement pursuant to this Clause.
29. Upon the expiration or earlier termination of this Agreement or upon
cancellation of the authorization for a Beverage(s) and then only in
respect of that Beverage(s) as the case may be:
(a) the Bottler shall not thereafter prepare, package, distribute
or sell the Beverage(s) or make any use of the Trademarks,
Authorized Containers, cases, closures, labels, packaging
material or advertising material used or which are intended
for use by the Bottler in connection with the preparation,
packaging, distribution and sale of the Beverage(s);
(b) the Bottler shall forthwith eliminate all references to the
Company, the Beverage(s) and the Trademarks from the premises.
delivery vehicles, vending and other equipment of the Bottler
and from all business stationery and all written, graphic,
electromagnetic, digital or other promotional or advertising
material used or maintained by the Bottler, and the Bottler
shall not thereafter hold forth in any manner whatsoever that
the Bottler has any connection with the Company, the
Beverage(s) or the Trademarks;
(c) the Bottler shall forthwith deliver to the Company or a third
party, in accordance with such instructions as the Company
shall give, all of the Beverage Bases, Syrups, Beverages in
Authorized Containers, usable Authorized Containers bearing
the Trademarks or any of them, cases, closures, labels,
packaging material and advertising material for the
Beverage(s) still in the Bottler's possession or under its
control, and the Company shall, upon delivery thereof,
pursuant to such instructions, pay to the Bottler a sum equal
to the reasonable market value of such supplies or materials,
provided that the Company will accept and pay for only such
supplies or materials as are in first-class and usable
condition; and provided further that all Authorized
Containers, closures, labels, packaging material and
advertising material bearing the name of the Bottler and any
such supplies and materials which are unfit for use according
to the Company's standards shall be destroyed by the Bottler
without cost to the Company; and provided further that, if
this Agreement is terminated in accordance with the provisions
of Clauses 18 or 27(a) or as a result of any of the
contingencies specified in Clause 34 (including termination by
operation of law), or if the Agreement is terminated by the
Bottler for any reason other than in accordance with or as a
result of the operation of Clauses 25 or 28 or upon the
cancellation of the authorization for a Beverage(s) pursuant
to Clause 25(d) or Clause 30, the Company shall have the
option, but no obligation, to purchase from the Bottler the
supplies and materials referred to above; and
(d) all rights and obligations hereunder, whether specifically set
out or whether accrued or accruing by use, conduct or
otherwise, shall expire, cease and end, excepting all
provisions concerning the obligations of the Bottler as set
forth in Clauses 13(a)(1) and (2), 14, 15, 17, 29, 35(a), (b),
(c) and (d), and 36, all of which shall continue in full force
and effect; provided always that this provision shall not
affect any rights the Company may have against the Bottler in
respect of any claim for nonpayment of any debt or account
owed by the Bottler to the Company or its Authorized
Suppliers.
30. In addition to all other remedies of the Company in respect of any
breach by the Bottler of the terms, covenants and conditions of this
Agreement and where such breach relates only to the preparation,
packaging, distribution and sale by the Bottler of one or more, but not
all of the Beverages, then the Company may elect to cancel the
authorizations granted to the Bottler pursuant to this Agreement in
respect only of that Beverage or those Beverages. In the event of the
cancellation by the Company of authorizations to the Bottler pursuant
to this Clause, the provisions of Clause 29 shall apply in respect of
that Beverage or those Beverages, the Company shall have no further
obligations to the Bottler in respect of that Beverage or those
Beverages in respect of which authorizations have been cancelled and
the Company shall be entitled to prepare, package, distribute or sell
or to grant authorizations to a third party in connection with the
preparation, packaging, distribution and sale of that Beverage or those
Beverages in the Territory.
VIII. GENERAL PROVISIONS
31. It is recognized and acknowledged among the parties hereto that the
Company has a vested and legitimate interest in maintaining, promoting
and safeguarding the overall performance, efficiency and integrity of
the Company's international bottling, distribution and sales system. It
is further recognized and acknowledged among the parties hereto that
this Agreement has been entered into by the Company intuitu personae
and in reliance upon the identity, character and integrity of the
owners, controlling parties and managers of the Bottler, and the
Bottler warrants having made to the Company prior to the execution
hereof a full and complete disclosure of the owners and of any third
parties having a right to, or power of, control or management of the
Bottler. It is therefore agreed among the parties hereto that
notwithstanding the provisions of Clause 18 or any other provision of
this Clause 31, in the event of any change, due to any cause, of the
real persons or legal entities having direct or indirect ownership or
control of the Bottler, including any changes of share-owner
composition of such entities, the Company, in its sole discretion, may
terminate this Agreement forthwith and without liability for damages.
Furthermore, the Bottler covenants and agrees with the Company:
(a) not to assign, transfer, pledge or in any way encumber this
Agreement or any interest herein or rights hereunder, in whole
or in part, to any third party or parties, without the prior
written consent of the Company;
(b) not to delegate performance of this Agreement, in whole or in
part, to any third party or parties, without the prior written
consent of the Company;
(c) to notify the Company promptly in the event of or upon
obtaining knowledge of any third party action which may or
will result in any change in the ownership or control of the
Bottler;
(d) to make available from time to time and at the request of the
Company complete records of current
Bottler's Agreement Page 7
8
ownership of the Bottler and full information concerning any
third party or parties by whom it is controlled directly or
indirectly;
(e) to the extent the Bottler has any legal control over changes
in the ownership or control of the Bottler, not to initiate or
implement, consent to or acquiesce in any such change without
the prior written consent of the Company; and
(f) if the Bottler is organized as a partnership, not to change
the composition of such partnership by the inclusion of any
new partners or the release of existing partners without the
prior written consent of the Company.
In addition to the foregoing provisions of this Clause, if a proposed
change in ownership or control of the Bottler involves a direct or
indirect transfer to or acquisition of ownership or control of the
Bottler by a person or entity authorized or licensed by the Company to
manufacture, sell, distribute or otherwise deal in any Beverages and/or
any Trademarks of the Company (the "Acquiror Bottler"), the Company may
request any and all information it considers relevant from both the
Bottler and the Acquiror Bottler in order to make its determination
whether to consent to such change. In any such circumstances, the
parties hereto, recognizing and acknowledging the vested and legitimate
interest of the Company in maintaining, promoting and safeguarding the
overall performance, efficiency and integrity of the Company's
international bottling, distribution and sales system, expressly agree
that the Company may consider all or any factors, and apply all or any
criteria that it considers relevant in making such determination.
32. The Bottler shall, prior to the issue, offer, sale, transfer, trade or
exchange of any of its shares of stock or other evidence of ownership,
its bonds, debentures or other evidence of indebtedness, or the
promotion of the sale of the above, or stimulation or solicitation of
the purchase or an offer to sell thereof, obtain the written consent
of the Company whenever the Bottler uses in this connection the name of
the Company or the Trademarks or any description of the business
relationship with the Company in any prospectus, advertisement or
other sales efforts. The Bottler shall not use the name of the Company
or the Trademarks or any description of the business relationship with
the Company in any prospectus or advertisement used in connection with
the Bottler's acquisition of any shares or other evidence of ownership
in a third party without the Company's prior written approval.
33. The Company may assign any of its rights and delegate all or any of its
duties or obligations under this Agreement to one or more of its
subsidiaries or related companies upon written notice to the Bottler;
provided, however, that any such delegation shall not relieve the
Company from any of its contractual obligations under this Agreement.
In addition, the Company in its sole discretion, may through
written notice to the Bottler, appoint a third party as its
representative to ensure that the Bottler carries out its obligations
under this Agreement, with full powers to oversee the Bottler's
performance and to require from the Bottler its compliance with all
the terms and conditions of this Agreement. The Company may change or
retract such appointment at any time by written notice sent to the
Bottler.
34. Neither the Company nor the Bottler shall be liable for failure to
perform any of its obligations hereunder when such failure is caused by
or results from:
(a) strike, blacklisting, boycott or sanctions, however incurred;
or
(b) act of God, force majeure, public enemies, authority of law
and/or legislative or administrative measures (including the
withdrawal of any government authorization required by any of
the parties to carry out the terms of this Agreement),
embargo, quarantine, riot, insurrection, declared or
undeclared war, state of war or belligerency or hazard or
danger incident thereto; or
(c) any other cause whatsoever beyond its control.
In the event the Bottler is unable to perform its obligations as a
consequence of any of the contingencies set forth in this Clause, and
for the duration of such inability, the Company and Authorized
Suppliers shall be relieved of their obligations under Clauses 4 and 5;
and provided that, if any such failure by any party hereto shall
persist for a period of six (6) months or more, any of the parties
hereto may terminate this Agreement.
35. (a) The Coca-Cola Company reserves the sole and exclusive
right to institute any civil, administrative or criminal
proceedings or action, and generally to take or seek any
available legal remedy it deems desirable for the protection
of its reputation and industrial property rights as well as
for the protection of the Beverage Bases, the Syrups and the
Beverages and to defend any action affecting these matters. At
the request of The Coca-Cola Company, the Bottler will render
assistance in any such action. The Bottler shall not have any
claim against the Company as a result of such proceedings or
action or for any failure to institute or defend such
proceedings or action. The Bottler shall promptly notify the
Company of any litigation or proceedings instituted or
threatened affecting these matters. The Bottler shall not
institute, without the prior written consent of the Company,
any legal or administrative proceedings against any third
party which may affect the interests of the Company.
(b) The Coca-Cola Company has the sole and exclusive right and
responsibility to initiate and defend all proceedings and
actions relating to the Trademarks. The Coca-Cola Company may
initiate or defend any such proceedings or actions in its own
name or require the Bottler to institute or defend such
proceedings or actions either in its own name or in the joint
names of the Bottler and The Coca-Cola Company.
(c) The Bottler agrees to consult with the Company on all product
liability claims, proceedings or actions brought against the
Bottler in connection with the Beverages or Authorized
Containers and to take such action with respect to the defense
of any such claim or lawsuit as the Company may reasonably
request in order to protect the interests of the Company in
the Beverages, the Authorized Containers or the goodwill
associated with the Trademarks.
Bottler's Agreement Page 8
9
(d) The Bottler shall indemnify and hold harmless the Company, its
affiliates and their respective officers, directors and
employees from and against all costs, expenses, damages,
claims, obligations and liabilities whatsoever arising from
facts or circumstances not attributable to the Company
including, but not limited to, all costs and expenses incurred
in settling or compromising any of the same arising out of the
preparation, packaging, distribution, sale or promotion of the
Beverages by the Bottler, including, but not limited to, all
costs arising out of the acts or defaults, whether negligent
or not, of the Bottler, the Bottler's distributors, suppliers
and wholesalers.
(e) The Bottler shall obtain and maintain a policy of insurance
with insurance carriers satisfactory to the Company giving
full and comprehensive coverage both as to amount and risks
covered in respect of matters referred to in Clause 35(d)
above (including the indemnity contained therein) and shall on
request produce evidence satisfactory to the Company of the
existence of such insurance. Compliance with this Clause 35(e)
shall not limit or relieve the Bottler from its obligations
under Clause 35 (d) hereof.
36. The Bottler covenants and agrees with the Company:
(a) that it will make no representations or disclosures to public
or government authorities or to any other third party relating
to the Beverage Bases, the Syrups or the Beverages without the
prior written consent of the Company;
(b) that it will at all times, both during the continuance and
after termination of this Agreement, keep strictly
confidential all secret and confidential information
including, without limiting the generality of the foregoing,
mixing instructions and techniques, sales, marketing and
distribution information and projects and plans relating to
the subject matter of this Agreement which the Bottler may
receive from the Company or in any other manner and to ensure
that such information shall be made known only on a need-to-
know basis to those officers, directors and employees bound by
reasonable provisions incorporating the nondisclosure and
secrecy obligations set out in this Clause 36;
(c) that upon the expiration or earlier termination of this
Agreement, the Bottler will make necessary arrangements to
deliver to the Company in accordance with instructions as may
be given by the Company, all written, graphic,
electromagnetic, computerized, digital or other materials
comprising or containing any information subject to the
obligation of confidence hereunder.
37. In the event any provisions of this Agreement are or become legally
ineffective or invalid, the validity or effect of the remaining
provisions of this Agreement shall not be affected; provided that the
invalidity or ineffectiveness of the said provisions shall not prevent
or unduly hamper performance hereunder or prejudice the ownership or
validity of the Trademarks. The right to terminate in accordance with
Clause 27(a)(2) is not affected hereby.
38. (a) As to all matters herein mentioned, this Agreement
constitutes the only agreement between the Company and the
Bottler, all prior agreements of any kind whatsoever between
these parties relating to the subject matter hereof being
cancelled hereby; provided, however, that any written
representations made by the Bottler upon which the Company
relied in entering into this Agreement shall remain binding
upon the Bottler.
(b) Any waiver or modification of, or alteration or addition to,
this Agreement or any of its provisions shall not be binding
upon the Company or the Bottler unless the same shall be
executed respectively by duly authorized representatives of
The Coca-Cola Company, The Coca-Cola Export Corporation and
the Bottler.
(c) All written notices given pursuant to this Agreement shall be
by cable, telegram, telex, facsimile, hand delivery or
registered mail and shall be deemed to be given on the date
such notice is dispatched, such registered letter is mailed,
or such hand delivery is effected. Such written notices shall
be addressed to the last known address of the party concerned.
Any change of address by any of the parties hereto shall be
promptly furnished in writing to the other party or parties.
39. Failure of the Company to exercise promptly any right herein granted,
or to require strict performance of any obligation undertaken herein by
the Bottler, shall not be deemed to be a waiver of such right or of the
right to demand subsequent performance of any and all obligations
herein undertaken by the Bottler.
40. The Bottler is an independent contractor and not the agent of the
Company. The Bottler agrees that it will not represent that it is an
agent of the Company nor hold itself out as such.
41. The headings herein are solely for the convenience of the parties and
shall not affect the interpretation of this Agreement.
42. This Agreement shall be interpreted, construed and governed by and in
accordance with the laws of the Republic of France Any dispute arising
hereunder shall be referred to the courts Paris.
43. The Appendices and Schedules which are attached hereto shall, for all
purposes, be deemed and by this reference are made a part of this
Agreement and shall be executed respectively by duly authorized
representatives of The Coca-Cola Company, The Coca-Cola Export
Corporation and the Bottler.
IN WITNESS WHEREOF, The Coca-Cola Company and The Coca-Cola Export Corporation
in Atlanta Georgia, U.S.A. and the Bottler in Paris, France have caused these
presents to be executed in triplicate by the duly authorized person or persons
on their behalf on the dates indicated below.
-------------------------------------
COCA-COLA BEVERAGES S.A. THE COCA-COLA COMPANY
BY: s/ X. Xxxxxx BY: s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------- -------------------------
Authorized Representative Authorized Representative
Date: July 26, 1996 Date: July 26, 1996
THE COCA-COLA EXPORT
CORPORATION
BY: s/ Xxxxxxx X. Xxxxx
-------------------------
Authorized Representative
Date: July 26, 1996
Bottler's Agreement Page 9
10
Appendix I
BEVERAGES
Location: Paris
Date: July 26, 1996
For the purposes of the Bottler's Agreement entered into among The Coca-Cola
Company, The Coca-Cola Export Corporation and the undersigned Bottler with
effect from July 26, 1996, the Beverages referred to in recital Paragraph A
thereof are:
Aquarius
Bonaqua
Coca-Cola
Coca-Cola light
caffeine free
Coca-Cola caffeine free
Coca-Cola light
cherry Coca-Cola
Xxxxx xxxxxx
Xxxxx xxxxxx
Fanta lemon
Fanta light
Fanta orange
Fanta still lemon
Fanta still orange
Xxxxxx
Xxxxxx bitter lemon
Kinley tonic water
Lift orange
Minute Maid apple
Minute Maid apricot
Minute Maid grapefruit
Minute Maid orange
Minute Maid pineapple
Minute Maid tomato
Minute Maid tropical
Sprite
Sprite light
The description of the Beverages in this Appendix I supersedes as of July 26,
1996 all prior descriptions and Appendices relating to the Beverages for
purposes of recital Paragraph A of the said Bottler's Agreement.
-------------------------------------------------
COCA-COLA BEVERAGES S.A. THE COCA-COLA COMPANY
S/ X. XXXXXX S/ XXXXXX X. XXXXXXX, XX.
By:------------------------ By:--------------------------
Authorized Representative Authorized Representative
Date: July 26, 1996 Date: July 26, 1996
THE COCA-COLA EXPORT CORPORATION
S/ XXXXXXX X. XXXXX
By:----------------------------
Authorized Representative
Date: July 26, 1996
11
Appendix II
TRADEMARKS
Location: Paris
Date: July 26, 1996
For the purposes of the Bottler's Agreement entered into among The Coca-Cola
Company, The Coca-Cola Export Corporation and the undersigned Bottler with
effect from July 26, 1996, the Trademarks of The Coca-Cola Company referred to
in recital Paragraph B thereof are:
Trademark
Aquarius, Bonaqua, Coca-Cola, Coke, Coca-Cola light, Coke light, cherry
Coca-Cola, cherry Coke, Distinctive Bottle, Dynamic Ribbon device, Fanta, Fanta
light, Finley, Kinley, Lift, Minute Maid, Sprite, Sprite light, including all
transliterations and all related trade dress applications, registrations and
copyrights
The description of the Trademarks in this Appendix II supersedes as of July 26,
1996 all prior descriptions and Appendices relating to the Trademarks for
purposes of recital Paragraph B of the said Bottler's Agreement.
---------------------------------------------------------------
COCA-COLA BEVERAGES S.A. THE COCA-COLA COMPANY
S/ X. XXXXXX S/ XXXXXX X. XXXXXXX, XX.
By:------------------------ By:--------------------------
Authorized Representative Authorized Representative
Date: July 26, 1996 Date: July 26, 1996
THE COCA-COLA EXPORT CORPORATION
S/ XXXXXXX X. XXXXX
By:----------------------------
Authorized Representative
Date: July 26, 1996
12
Appendix III
TERRITORY
Location: Paris
Date: July 26, 1996
For the purposes of the Bottler's Agreement entered into among The Coca-Cola
Company, The Coca-Cola Export Corporation and the undersigned Bottler with
effect from July 26, 1996, the Territory referred to in Clause 1 thereof is:
Metropolitan France, with the exception of:
A. the departments of Corse;
B. the departments of Ariege, Aude, Gers, Hautes-Pyrenees, Tarn,
Tarn-et-Garonne, Haute Garonne, Pyrenees-Orientales; and
C. the departments of Alpes-Maritimes, Var and the Principality
of Monaco.
The description of the Territory in this Appendix III supersedes as of July 26,
1996 all prior descriptions and Appendices relating to the Territory for all the
purposes of the said Bottler's Agreement.
-------------------------------------------------
COCA-COLA BEVERAGES S.A. THE COCA-COLA COMPANY
S/ X. XXXXXX S/ XXXXXX X. XXXXXXX, XX.
By:------------------------ By:--------------------------
Authorized Representative Authorized Representative
Date: July 26, 1996 Date: July 26, 1996
THE COCA-COLA EXPORT CORPORATION
S/ XXXXXXX X. XXXXX
By:----------------------------
Authorized Representative
Date: July 26, 1996
13
Appendix IV
AUTHORIZED CONTAINERS
Location: Paris
Date: July 26, 1996
Pursuant to the provisions of Clause 2 of the Bottler's Agreement entered into
among The Coca-Cola Company, The Coca-Cola Export Corporation (The Coca-Cola
Company and The Coca-Cola Export Corporation hereinafter collectively or
severally referred to as the "Company") and the undersigned Bottler with effect
from July 26, 1996, the Company authorizes the Bottler to prepare, distribute
and sell the Beverages in the following containers, which for the purposes of
the said Bottler's Agreement shall be deemed "Authorized Containers."
Coca-Cola Refillable Glass Bottle 0.20 litre
Coca-Cola light Refillable Glass Bottle 0.20 litre
Fanta orange Refillable Glass Bottle 0.20 litre
Kinley bitter lemon Refillable Glass Bottle 0.20 litre
Xxxxxx tonic water Refillable Glass Bottle 0.20 litre
Sprite Refillable Glass Bottle 0.20 litre
Coca-Cola Refillable Glass Bottle 0.33 litre
Coca-Cola light Refillable Glass Bottle 0.33 litre
Fanta orange Refillable Glass Bottle 0.33 litre
Sprite Refillable Glass Bottle 0.33 litre
Coca-Cola Refillable Glass Bottle 1.00 litre
Coca-Cola light Refillable Glass Bottle 1.00 litre
Fanta orange Refillable Glass Bottle 1.00 litre
Sprite Refillable Glass Bottle 1.00 litre
Coca-Cola Non-Refillable Glass Bottle 0.25 litre
Coca-Cola light Non-Refillable Glass Bottle 0.25 litre
Fanta orange Non-Refillable Glass Bottle 0.25 litre
Sprite Non-Refillable Glass Bottle 0.25 litre
Coca-Cola Non-Refillable Glass Bottle 0.50 litre
Coca-Cola light Non-Refillable Glass Bottle 0.50 litre
Fanta orange Non-Refillable Glass Bottle 0.50 litre
Coca-Cola Refillable PET Bottle 1.50 litre
Coca-Cola light Refillable PET Bottle 1.50 litre
caffeine free Coca-Cola light Refillable PET Bottle 1.50 litre
14
Fanta light Refillable PET Bottle 1.50 litre
Fanta orange Refillable PET Bottle 1.50 litre
Sprite Refillable PET Bottle 1.50 litre
Sprite light Refillable PET Bottle 1.50 litre
Coca-Cola Refillable PET Bottle 2.00 litre
Coca-Cola light Refillable PET Bottle 2.00 litre
Coca-Cola Non-Refillable PET Bottle 0.33 litre
Fanta orange Non-Refillable PET Bottle 0.33 litre
Sprite Non-Refillable PET Bottle 0.33 litre
Aquarius Non-Refillable PET Bottle 0.50 litre
Fanta orange Non-Refillable PET Bottle 0.50 litre
Sprite Non-Refillable PET Bottle 0.50 litre
Aquarius Non-Refillable PET Bottle 1.00 litre
cherry Coca-Cola Non-Refillable PET Bottle 1.00 litre
Coca-Cola Non-Refillable PET Bottle 1.50 litre
Coca-Cola light Non-Refillable PET Bottle 1.50 litre
caffeine free Coca-Cola Non-Refillable PET Bottle 1.50 litre
caffeine free Coca-Cola light Non-Refillable PET Bottle 1.50 litre
Xxxxx xxxxxx Non-Refillable PET Bottle 1.50 litre
Fanta lemon Non-Refillable PET Bottle 1.50 litre
Fanta light Non-Refillable PET Bottle 1.50 litre
Fanta orange Non-Refillable PET Bottle 1.50 litre
Sprite Non-Refillable PET Bottle 1.50 litre
Sprite light Non-Refillable PET Bottle 1.50 litre
Coca-Cola Non-Refillable PET Bottle 2.00 litre
Coca-Cola Non-Refillable PET Contour Bottle 0.50
litre
Coca-Cola light Non-Refillable PET Contour Bottle 0.50
litre
Coca-Cola Non-Refillable PET Contour Bottle 1.50
litre
Coca-Cola light Non-Refillable PET Contour Bottle 1.50
litre
15
Fanta Non-Refillable PET Multiproduct
Proprietary Bottle 1.50 litre
Sprite Non-Refillable PET Multiproduct
Proprietary Bottle 1.50 litre
Coca-Cola Can 0.25 litre
Aquarius Can 0.33 litre
Bonaqua Can 0.33 litre
Coca-Cola Can 0.33 litre
Coca-Cola light Can 0.33 litre
caffeine free Coca-Cola Can 0.33 litre
caffeine free Coca-Cola light Can 0.33 litre
cherry Coca-Cola Can 0.33 litre
Xxxxx xxxxxx Can 0.33 litre
Xxxxx xxxxxx Can 0.33 litre
Fanta lemon Can 0.33 litre
Fanta light Can 0.33 litre
Fanta orange Can 0.33 litre
Xxxxxx Can 0.33 litre
Kinley bitter lemon Can 0.33 litre
Xxxxxx tonic water Can 0.33 litre
Sprite Can 0.33 litre
Sprite light Can 0.33 litre
Coca-Cola Can 0.50 litre
It is recognized and agreed among the parties hereto, that during the term of
the said Bottler's Agreement, the Company shall not exercise its right under
Clause 2 of the Bottler's Agreement to cancel the authorization in respect of
those Authorized Containers which are described as Refillable Glass Bottles in
this Appendix.
This authorization supersedes as of July 26, 1996 any prior authorizations
entered into among the Company and the Bottler in connection with the subject
matter of this Appendix IV.
-------------------------------------------------
COCA-COLA BEVERAGES S.A. THE COCA-COLA COMPANY
S/ X. XXXXXX S/ XXXXXX X. XXXXXXX, XX.
By:------------------------ By:--------------------------
Authorized Representative Authorized Representative
Date: July 26, 1996 Date: July 26, 1996
THE COCA-COLA EXPORT CORPORATION
S/ XXXXXXX X. XXXXX
By:----------------------------
Authorized Representative
Date: July 26, 1996
16
Schedule A
AUTHORIZATION IN RESPECT OF SYRUPS FOR POST-MIX BEVERAGES
Location: Paris
Date: July 26,1996
Pursuant to the provisions of Clause 3 of the Bottler's Agreement entered into
among The Coca-Cola Company, The Coca-Cola Export Corporation (The Coca-Cola
Company and The Coca-Cola Export Corporation hereinafter collectively or
severally referred to as the "Company") and the undersigned Bottler with effect
from July 26, 1996, the Company hereby grants a non-exclusive authorization to
the Bottler to prepare, package, distribute and sell syrups for the following
Beverages:
Coca-Cola
Coca-Cola light
Xxxxx xxxxxx
Xxxxx xxxxxx
Fanta orange
Xxxxxx
Xxxxxx bitter lemon
Kinley tonic water
Sprite
(said syrups being hereinafter referred to in this Schedule A as "PostMix
Syrups") to (i) retail dealers in the Territory for use in dispensing the
Beverages through Post-Mix Dispensers in or adjoining the establishments of
retail outlets; and/or to (ii) certain distributors in the Territory
(hereinafter referred to as "Distributors") who will in turn sell and distribute
the Post-Mix Syrups to retail dealers; and/or (iii) to operate Post-Mix
Dispensers and sell the Beverages dispensed therefrom directly to consumers,
subject to the following conditions:
1. The Bottler shall not sell any Post-Mix Syrups to a retail outlet, and
shall ensure that the Distributors shall not sell any Post-Mix Syrups
to a retail outlet, for use in any Post-Mix Dispenser, or operate any
Post-Mix Dispenser unless the following conditions are met:
(a) There is available an adequate source of safe, potable water.
(b) All Post-Mix Dispensers are of a type approved by the Company
and conform in all respects to the hygienic and other
standards which the Company shall issue in writing to
17
the Bottler in connection with the preparation, packaging and
sale of the Post-Mix Syrups. The Bottler shall at all times
maintain a list of all its retail outlets and/or Distributors
to whom it has leased or otherwise handed over Post-Mix
Dispensers.
(c) The Beverages dispensed through the Post-Mix Dispensers are in
strict adherence to and compliance with the instructions for
the preparation of the Beverages from Post-Mix Syrups as
issued in writing to the Bottler from time to time by the
Company.
2. The Bottler shall take samples of the Beverages dispensed through the
Post-Mix Dispensers operated by retail outlets to whom the Bottler
and/or the Distributor has supplied the Post-Mix Syrups or which are
operated by the Bottler, in accordance with such instructions and at
such intervals as may be notified by the Company in writing and shall
submit said samples at the Bottler's expense to the Company for
inspection.
3. The Bottler shall maintain adequate numbers of trained personnel to
enable the Bottler to make periodic inspections of the PostMix
Dispensers in accordance with the instructions of the Company in order
to ensure compliance with the provisions set forth under Clause 1
above.
4. The Bottler shall, on its own initiative and responsibility,
discontinue immediately the sale of Post-Mix Syrups to any retail
outlet and/or ensure that the Distributors shall immediately
discontinue the sale of Post-Mix Syrups to any retail outlet which
fails to comply with the standards prescribed by the Company.
5. The Bottler shall discontinue the sale of Post-Mix Syrups to any retail
outlet and/or ensure that the Distributors shall discontinue the sale
of Post-Mix Syrups to any retail outlet when notified by the Company
that any of the Beverages dispensed through a Post-Mix Dispenser
located in or adjoining the establishment of the retail outlet do not
comply with the standards prescribed by the Company for the Beverages
or that the Post-Mix Dispenser is not of a type approved by the
Company.
6. The Bottler shall ensure that or cause the Distributors to ensure that
the Company shall have the right to enter and inspect the premises of
each retail outlet and to take any samples they may deem necessary to
ensure proper quality control.
7. The Bottler agrees:
(a) To sell and distribute the Post-Mix Syrups only in containers
of a type approved by the Company and to use on said
containers only labels which have been approved by the
18
Company.
(b) To exert every influence to persuade retail outlets to use a
standard glass, paper cup or other container approved by the
Company and with markings approved by the Company to the end
that the Beverages served to the consumer will be
appropriately identified and will be served in an attractive
and sanitary container.
(c) To ensure that the Distributors comply with the obligations
set forth under Clauses 7(a) and 7(b) above.
8. The Company shall notify the Bottler from time to time and the Bottler
shall in turn notify the Distributors about the deposit amount
appropriate at that time which the Bottler shall have to charge for
every returnable Post-Mix Syrup container delivered to any retail
outlet.
9. Nothing in this agreement shall relieve the Bottler from its direct
responsibility toward the Company for any or all of the obligations
arising hereunder, regardless of whether the Bottler has passed on to
the Distributors any of its obligations.
10. The authorization given to the Bottler to sell and distribute the
Post-Mix Syrups to certain Distributors in the Territory is given with
the clear understanding that the Company reserves the right to withdraw
the authorization at any time, with respect to any one, some or all of
the Distributors by giving the Bottler thirty (30) days written notice.
Furthermore, the Bottler's arrangements with each of the Distributors
shall expressly state (1) that the Distributor's services may be
terminated at any time by the Bottler, and that they shall terminate
automatically in the event of the withdrawal of this authorization or
termination of the Bottler's Agreement for whatever reason; and (2)
that the Distributors are not to spend money on or otherwise contribute
to the cost of any advertising for the Post-Mix Syrups or Beverages.
11. The Bottler shall not give any Distributor any exclusive rights,
territorial or otherwise. The Bottler shall not sell or distribute the
Post-Mix Syrups to Distributors for resale or redistribution outside of
the Territory.
12. The Bottler shall immediately notify the Company of the names and
addresses, and any changes thereof, of all Distributors who are
appointed pursuant to this authorization and the Bottler shall supply
the Company periodically, upon the Company's request, with details of
sales made to such Distributors.
Except as modified in this Schedule, all of the terms, covenants and conditions
contained in the said Bottler's Agreement shall apply to this supplemental
authorization to the Bottler to prepare, package, distribute and sell the
Post-Mix Syrups and, in this regard, it is
19
expressly agreed among the parties hereto that the terms, conditions, duties and
obligations of the Bottler, as set forth in the said Bottler's Agreement, shall
be incorporated herein by reference and, unless the context otherwise indicates
or requires, any reference in the said Bottler's Agreement to the term
"Beverages" shall be deemed to refer to the term "Post-Mix Syrups" for the
purpose of this supplemental authorization to the Bottler.
This authorization may be terminated by any party hereto upon ninety (90) days'
advance written notice, provided that it shall terminate automatically upon the
expiration or earlier termination of the said Bottler's Agreement.
This authorization supersedes as of July 26, 1996 any prior authorizations
entered into among the Company and the Bottler in connection with the subject
matter of this Schedule A.
-------------------------------------------------
COCA-COLA BEVERAGES S.A. THE COCA-COLA COMPANY
S/ X. XXXXXX S/ XXXXXX X. XXXXXXX, XX.
By:------------------------ By:--------------------------
Authorized Representative Authorized Representative
Date: July 26, 1996 Date: July 26, 1996
THE COCA-COLA EXPORT CORPORATION
S/ XXXXXXX X. XXXXX
By:----------------------------
Authorized Representative
Date: July 26, 1996
20
Schedule B
AUTHORIZATION IN RESPECT OF PRE-MIX BEVERAGES
(NOT APPLICABLE)
21
Schedule C
SUPPLEMENTAL AUTHORIZATION FOR DISTRIBUTION
Location: Paris
Date: July 26, 1996
Pursuant to the provisions of Clause 3 of the Bottler's Agreement entered into
among The Coca-Cola Company, The Coca-Cola Export Corporation (The Coca-Cola
Company and The Coca-Cola Export Corporation hereinafter collectively or
severally referred to as the "Company") and the undersigned Bottler with effect
from July 26, 1996, the Company hereby grants a supplemental non-exclusive
authorization to the Bottler to purchase from the Company or its designee the
Beverages in the following containers (hereinafter the "Authorized Containers")
and to sell and distribute them throughout the Territory:
Minute Maid apple Refillable Glass Bottle 0.20 litre
Minute Maid apricot Refillable Glass Bottle 0.20 litre
Minute Maid grapefruit Refillable Glass Bottle 0.20 litre
Minute Maid orange Refillable Glass Bottle 0.20 litre
Minute Maid pineapple Refillable Glass Bottle 0.20 litre
Minute Maid tomato Refillable Glass Bottle 0.20 litre
Minute Maid orange Refillable Glass Bottle 1.00 litre
Minute Maid apple Can 0.33 litre
Minute Maid orange Can 0.33 litre
Minute Maid tomato Can 0.33 litre
Minute Maid tropical Can 0.33 litre
Fanta still lemon Non-Refillable Aseptic Package 0.20 litre
Fanta still orange Non-Refillable Aseptic Package 0.20 litre
Minute Maid apple Non-Refillable Aseptic Package 0.20 litre
Minute Maid grapefruit Non-Refillable Aseptic Package 0.20 litre
Minute Maid orange Non-Refillable Aseptic Package 0.20 litre
Minute Maid tropical Non-Refillable Aseptic Package 0.20 litre
Minute Maid apple Non-Refillable Aseptic Package 0.25 litre
Minute Maid orange Non-Refillable Aseptic Package 0.25 litre
Minute Maid tropical Non-Refillable Aseptic Package 0.25 litre
Minute Maid apple Non-Refillable Aseptic Package 1.00 litre
Minute Maid grapefruit Non-Refillable Aseptic Package 1.00 litre
Minute Maid orange Non-Refillable Aseptic Package 1.00 litre
22
Minute Maid tomato Non-Refillable Aseptic Package 1.00 litre
Minute Maid tropical Non-Refillable Aseptic Package 1.00 litre
Minute Maid orange Non-Refillable PET Bottle 0.50 litre
Minute Maid orange Frozen Package 1.00 litre
Fanta still orange Post-Mix Bag-in-Box
Minute Maid orange Post-Mix Bag-in-Box
subject to the following conditions:
(a) This authorization shall expire on July 26, 1999; however, it
will be automatically renewed for successive periods of one
(1) year, in case none of the parties gives notice to the
others ninety (90) days before the expiration of the initial
term or subsequent extensions thereof of its intention to
terminate this authorization, provided that this authorization
shall terminate automatically upon the expiration or earlier
termination of the said Bottler's Agreement.
(b) The stipulations, covenants, agreements, terms, conditions and
provisions of the Bottler's Agreement shall apply to and be
effective for this authorization.
This authorization supersedes as of July 26, 1996 any prior authorizations
entered into between the Company and the Bottler in connection with the subject
matter of this Schedule C.
-------------------------------------------------
COCA-COLA BEVERAGES S.A. THE COCA-COLA COMPANY
S/ X. XXXXXX S/ XXXXXX X. XXXXXXX, XX.
By:------------------------ By:--------------------------
Authorized Representative Authorized Representative
Date: July 26, 1996 Date: July 26, 1996
THE COCA-COLA EXPORT CORPORATION
S/ XXXXXXX X. XXXXX
By:----------------------------
Authorized Representative
Date: July 26, 1996
23
Schedule D
AUTHORIZATION FOR PROMOTIONAL DISTRIBUTION
DURING SPORTING EVENTS
Location: Paris
Date: July 26, 1996
Pursuant to the provisions of Clause 3 of the Bottler's Agreement entered into
among The Coca-Cola Company, The Coca-Cola Export Corporation (The Coca-Cola
Company and The Coca-Cola Export Corporation hereinafter collectively or
severally referred to as the "Company") and the undersigned Bottler with effect
from July 26, 1996, the Company hereby grants the Bottler the non-exclusive
authorization to distribute the following Beverages during individual sporting
events in the following containers (hereinafter the "Authorized Containers")
within the Territory (as defined in the Bottler's Agreement):
Coca-Cola Can 0.15 litre
Fanta orange Can 0.15 litre
Sprite Can 0.15 litre
subject to the following terms and conditions:
(a) This authorization may be withdrawn by the Company at any time
provided that it shall terminate automatically upon the
expiration or earlier termination of the said Bottler's
Agreement.
(b) Upon the termination or cancellation of this authorization,
the Bottler shall immediately discontinue such sale and/or
distribution to said individual sporting events.
(c) Except as supplemented or modified herein, the stipulations,
covenants and conditions of the said Bottler's Agreement shall
continue in full force and effect.
This authorization supersedes any prior authorizations entered into among the
Company and the Bottler in connection with the subject matter of this Schedule
D.
-------------------------------------------------
COCA-COLA BEVERAGES S.A. THE COCA-COLA COMPANY
S/ X. XXXXXX S/ XXXXXX X. XXXXXXX, XX.
By:------------------------ By:--------------------------
Authorized Representative Authorized Representative
Date: July 26, 1996 Date: July 26, 1996
THE COCA-COLA EXPORT CORPORATION
S/ XXXXXXX X. XXXXX
By:----------------------------
Authorized Representative
Date: July 26, 1996
24
SCHEDULE E
SUPPLEMENTAL AUTHORIZATION FOR DISTRIBUTION OF CANS
(NOT APPLICABLE)
25
SCHEDULE F
SPECIAL AUTHORIZATION TO SELL TO
DISTRIBUTORS OUTSIDE THE TERRITORY
(NOT APPLICABLE)
26
SCHEDULE TO EXHIBIT 10.33
All of the Company's bottlers having territories within the European Union
(currently the bottlers in Belgium, France, Great Britain and the Netherlands)
have bottler's agreements with The Coca-Cola Company and The Coca-Cola Export
Corporation substantially in the form of the foregoing bottler's agreement with
Coca-Cola Beverages S.A dated July 26, 1996, with no material differences.
