Common use of Distribution Refusal Clause in Contracts

Distribution Refusal. 4.6.1. If, after the Distributor Negotiation Process provided for in Sections 4.1 above, including MEL’s good faith effort to meet and confer with the applicable Distributor to resolve any differences (a) a Proposed Distributor fails to deliver a Distribution Commitment or, in breach of its agreement with ▇▇▇, a KO/▇▇▇ Distributor, at any time thereafter, otherwise refuses to distribute or to continue to distribute substantially all Monster Energy Drink/s, as the case may be, designated by ▇▇▇ in good faith for sale in the Applicable Sub-Territory, (b) KO has not provided consent (to the extent required) to such KO Distributor to distribute substantially all Monster Energy Drink/s, as the case may be, designated by ▇▇▇ in good faith for sale in the Applicable Sub-Territory, (c) KO has not provided consent (to the extent required) to an applicable KO Distributor to distribute substantially all Other Monster Drinks or Other Products included in the Products, as the case may be, designated by ▇▇▇ in good faith for sale in the applicable Sub-Territory or (d) KO has provided such consent to such KO Distributor’s distribution of Other Monster Drinks or Other Products but such KO Distributor refuses to distribute or to continue to distribute substantially all such Other Monster Drinks or Other Products, as the case may be (each, as to such category of Monster Energy Drinks, Other Monster Drinks or Other Products subject to such refusal, a “Distribution Refusal”), ▇▇▇ shall have the right, subject to Section 4.6.5, to market, distribute and sell, and/or to continue to market, distribute and sell, directly or through a third party distributor, to the exclusion of KO or such KO/▇▇▇ Distributor, as the case may be, all or substantially all of the Product SKUs (including the declined Products), of such applicable category of Products subject to such Distribution Refusal (i.e., Monster Energy Drinks, Other Monster Drinks or Other Products, as the case may be), so designated for sale by ▇▇▇ in the Applicable Sub-Territory, upon forty-five (45) days written notice to KO (with a copy to the Chief Executive Officer and Chief Financial Officer of KO) of its intention to do so; provided that such Distribution Refusal continues to exist after such forty-five (45) day period. In such event, the KO Distribution Agreement with such KO/▇▇▇ Distributor may be terminated by the KO/▇▇▇ Distributor if substantially all of the Products under such KO Distribution Agreement are distributed to the exclusion of such KO/▇▇▇ Distributor. MEL’s rights to enter into agreements with other distributor/s (including Third Party Distributors) or otherwise market, distribute and sell Products or Monster Energy Drink/s, as the case may be, shall be limited to the Applicable Sub-Territories for which such Distribution Refusal applies. 4.6.2. KO hereby irrevocably grants ▇▇▇ approval in advance for the distribution by KO/▇▇▇ Distributors (subject to the last sentence of Section 3.2) of any and all Monster Energy Drink/s during the Term (i) in ready to drink form, and (ii) such other form(s), unless KO determines such other forms are not operationally or logistically viable for KO Distributors with respect to the distribution and related activities by KO Distributors as contemplated hereunder and under the KO Distribution Agreements, (provided that, for clarity, refusal to distribute or provide consent to any such non-viable non-ready-to-drink form of Monster Energy Products or of any Other Monster Drink or Other Product shall constitute “Refused New Products” (as defined below), with respect to Section 4.6.2 and 4.6.3). At any reasonable time prior to launching or otherwise commencing the sale or other distribution of any product SKUs of Other Monster Drink/s or Other Products that ▇▇▇ or any of its Affiliates may determine to sell or otherwise distribute after the Effective Date (each a “New Product SKUs”), ▇▇▇ shall offer (i) KO the option to include such New Product SKUs as Products under this Agreement, and (ii) KO/▇▇▇ Distributors the right to distribute New Product SKUs, subject to the terms of the applicable KO Distribution Agreement, and where permissible under applicable law, subject to KO’s prior written approval of distribution by such KO Distributors of such New Product SKUs. Without prejudice to MEL’s rights under Section 4.6.1 above, to the extent that KO or the applicable KO/▇▇▇ Distributor refuses to approve of adding New Product SKUs or any product SKUs of Monster Energy Products (collectively “Refused New Product/s”) to a KO/▇▇▇ Distributor’s KO Distribution Agreement within fifteen (15) days of MEL’s request that New Product SKUs be added, ▇▇▇ shall have the right, subject to Section 4.6.3 below, to sell, have sold or otherwise distribute in the applicable Sub-Territory, such Refused New Product SKUs (but not, subject to Section 4.6.1 above for clarity, any other Products or New Product SKUs) to the exclusion of such KO/▇▇▇ Distributors, through other distributors selected by ▇▇▇, after an additional fifteen (15) days written notice to KO of its intention to do so and KO and/or the applicable KO/▇▇▇ Distributor, as the case may be, do not provide such approval prior to expiration of such fifteen (15) day period. MEL’s right to sell, have sold, or otherwise distribute such Refused New Products/New Product SKUs pursuant to this Section 4.6.2 shall be limited to the Sub-Territories for which such approval has not been granted. 4.6.3. ▇▇▇ may, in its sole and absolute discretion, offer KO/▇▇▇ Distributors the right to distribute any Refused New Products on such terms as ▇▇▇ may determine in its sole and absolute discretion. Without limiting the foregoing, prior to launching or otherwise commencing the sale, commercialization or other distribution of any Refused New Products or entering into any contract or arrangement with respect to the acquisition, directly or indirectly, of any ownership interest in, or the management or control of, any business or assets relating to any Refused New Products, ▇▇▇ shall notify KO in writing of its intention to do so and the Parties shall discuss in good faith potential business relationships or other commercial opportunities relating to the commercialization of such Refused New Products (on mutually agreeable terms), with the joint goal of promoting each Party’s focus on its core business and alignment between them and their respective product offerings, for a period of thirty (30) days or such longer period agreed upon by the Parties.

Distribution Refusal. 4.6.1. 1.8.1 If, after the Distributor Negotiation Process provided for in Sections 4.1 Section 1.6(a) above, including MELMEC’s good faith effort to meet and confer with the applicable KO Distributor to resolve any differences differences, (a) a Proposed Distributor fails to deliver a Distribution Commitment or, in breach of its agreement with ▇▇▇MEC, a KO/▇▇▇ KO/MEC Distributor, at any time thereafter, otherwise refuses to distribute or to continue to distribute substantially all Monster Energy Drink/s, as the case may be, designated by ▇▇▇ MEC in good faith for sale in the Applicable applicable Sub-Territory, (b) KO has not provided consent (to the extent required) to such KO Distributor to distribute substantially all Monster Energy Drink/s, as the case may be, designated by ▇▇▇ MEC in good faith for sale in the Applicable applicable Sub-Territory, (c) KO has not provided consent (to the extent required) to an applicable KO Distributor to distribute substantially all Other Monster Drinks or Other Products that are included in the Products, as the case may be, designated by ▇▇▇ MEC in good faith for sale in the applicable Sub-Territory or (d) KO has provided such consent to such KO Distributor’s distribution of Other Monster Drinks or Other Products but such KO Distributor refuses to distribute or to continue to distribute substantially all such Other Monster Drinks or Other Products, as the case may be (each, as to such category of Monster Energy Drinks, Other Monster Drinks or Other Products subject to such refusal, a “Distribution Refusal”), ▇▇▇ MEC shall have the right, subject to Section 4.6.51.8.5, to market, distribute and sell, and/or to continue to market, distribute and sell, sell directly or through a third party distributor, including, without limitation, Third Party Distributors, in the Sub-Territory, to the exclusion of KO or such KO/▇▇▇ KO/MEC Distributor, as the case may be, all or substantially all of the Product SKUs (including the declined Products), of such applicable category of Products subject to such Distribution Refusal (i.e., Monster Energy Drinks, Other Monster Drinks or Other Products, as the case may be), so designated for sale by ▇▇▇ MEC in the Applicable applicable Sub-Territory, upon forty-five (45) days written notice to KO (with a copy to the Chief Executive Officer and Chief Financial Officer of KO) of its intention to do so; provided that such Distribution Refusal continues to exist after such forty-five (45) day period. In such event, the KO Distribution Agreement with such KO/▇▇▇ KO/MEC Distributor may be terminated by the KO/▇▇▇ KO/MEC Distributor if substantially all of the Products under such KO Distribution Agreement are distributed to the exclusion of such KO/▇▇▇ KO/MEC Distributor. MELMEC’s rights to enter into agreements with other distributor/s (including Third Party Distributors) or otherwise market, distribute and sell Products or Monster Energy Drink/s, as the case may be, shall be limited to the Applicable applicable Sub-Territories for which such Distribution Refusal applies. 4.6.2. 1.8.2 KO hereby irrevocably grants ▇▇▇ MEC approval in advance for the distribution by KO/▇▇▇ such KO/MEC Distributors (subject to the last sentence of Section 3.2) of any and all Monster Energy Drink/s during the Term (i) in ready to drink form, and (ii) such all other form(s), ) unless KO determines such other forms are not operationally or logistically viable for KO Distributors with respect to the distribution and related activities by KO Distributors as contemplated hereunder and under the KO Distribution Agreements, (provided that, for clarity, refusal to distribute or provide consent to any such non-viable non-ready-to-drink form of Monster Energy Products or of any Other Monster Drink or Other Product shall constitute “Refused New Products” (as defined below), with respect to Section 4.6.2 1.8.2 and 4.6.31.8.3). At any reasonable time prior to launching or otherwise commencing the sale or other distribution of any product SKUs SKU/s of Other Monster Drink/s or Other Products that ▇▇▇ MEC or any of its Affiliates may determine to sell or otherwise distribute after the Effective Date (each a “New Product SKUs”), ▇▇▇ MEC shall offer (i) KO the option to include such New Product SKUs as Products under this Agreement, and (ii) KO/▇▇▇ KO/MEC Distributors the right to distribute New Product SKUs, subject to the terms of the applicable KO Distribution Agreement, and where permissible under applicable law, subject to KO’s prior written approval of distribution by such KO Distributors of such New Product SKUs. Without prejudice to MELMEC’s rights under Section 4.6.1 1.8.1 above, to the extent that KO or the applicable KO/▇▇▇ KO/MEC Distributor refuses to approve of adding New Product SKUs or any product SKUs of Monster Energy Products (collectively collectively, “Refused New Product/s”) to a KO/▇▇▇ KO/MEC Distributor’s KO Distribution Agreement within fifteen (15) days of MELMEC’s request that New Product SKUs be added, ▇▇▇ MEC shall have the right, subject to Section 4.6.3 1.8.3 below, to sell, have sold sold, or otherwise distribute in the applicable Sub-Territory, such Refused New Product SKUs (but not, subject to Section 4.6.1 1.8.1 above for clarity, any other Products or New Product SKUs) ), to the exclusion of such KO/▇▇▇ Distributors, KO/MEC Distributors through other distributors selected by ▇▇▇MEC, after an additional fifteen (15) days written notice to KO of its intention to do so and KO and/or the applicable KO/▇▇▇ KO/MEC Distributor, as the case may be, do not provide such approval prior to expiration of such fifteen (15) day period. MELMEC’s right to sell, have sold, or otherwise distribute such Refused New Products/New Product SKUs pursuant to this Section 4.6.2 1.8.2 shall be limited to the Sub-Territories for which such approval has not been granted. 4.6.3. ▇▇▇ 1.8.3 MEC may, in its sole and absolute discretion, offer KO/▇▇▇ KO/MEC Distributors the right to distribute any Refused New Products on such terms as ▇▇▇ MEC may determine in its sole and absolute discretion. Without limiting the foregoing, prior to launching or otherwise commencing the sale, commercialization or other distribution of any Refused New Products or entering into any contract or arrangement with respect to the acquisition, directly or indirectly, of any ownership interest in, or the management or control of, any business or assets relating to any Refused New Products, ▇▇▇ MEC shall notify KO in writing of its intention to do so and the Parties shall discuss in good faith potential business relationships or other commercial opportunities relating to the commercialization of such Refused New Products (on mutually agreeable terms), with the joint goal of promoting each Party’s focus on its core business and alignment between them and their respective product offerings, for a period of thirty (30) days or days]or such longer period agreed upon by the Parties.

Distribution Refusal. 4.6.1. 1.8.1 If, after the Distributor Negotiation Process provided for in Sections 4.1 Section 1.6(a) above, including MELMEC’s good faith effort to meet and confer with the applicable KO Distributor to resolve any differences differences, (a) a Proposed Distributor fails to deliver a Distribution Commitment or, in breach of its agreement with ▇▇▇MEC, a KO/▇▇▇ KO/MEC Distributor, at any time thereafter, otherwise refuses to distribute or to continue to distribute substantially all Monster Energy Drink/s, as the case may be, designated by ▇▇▇ MEC in good faith for sale in the Applicable applicable Sub-Territory, (b) KO has not provided consent (to the extent required) to such KO Distributor to distribute substantially all Monster Energy Drink/s, as the case may be, designated by ▇▇▇ MEC in good faith for sale in the Applicable applicable Sub-Territory, (c) KO has not provided consent (to the extent required) to an applicable KO Distributor to distribute substantially all Other Monster Drinks or Other Products that are included in the Products, as the case may be, designated by ▇▇▇ MEC in good faith for sale in the applicable Sub-Territory or (d) KO has provided such consent to such KO Distributor’s distribution of Other Monster Drinks or Other Products but such KO Distributor refuses to distribute or to continue to distribute substantially all such Other Monster Drinks or Other Products, as the case may be (each, as to such category of Monster Energy Drinks, Other Monster Drinks or Other Products subject to such refusal, a “Distribution Refusal”), ▇▇▇ MEC shall have the right, subject to Section 4.6.51.8.5, to market, distribute and sell, and/or to continue to market, distribute and sell, sell directly or through a third party distributor, including, without limitation, Third Party Distributors, in the Sub-Territory, to the exclusion of KO or such KO/▇▇▇ KO/MEC Distributor, as the case may be, all or substantially all of the Product SKUs (including the declined Products), of such applicable category of Products subject to such Distribution Refusal (i.e., Monster Energy Drinks, Other Monster Drinks or Other Products, as the case may be), so designated for sale by ▇▇▇ MEC in the Applicable applicable Sub-Territory, upon forty-five (45) days written notice to KO (with a copy to the Chief Executive Officer and Chief Financial Officer of KO) of its intention to do so; provided that such Distribution Refusal continues to exist after such forty-five (45) day period. In such event, the KO Distribution Agreement with such KO/▇▇▇ KO/MEC Distributor may be terminated by the KO/▇▇▇ KO/MEC Distributor if substantially all of the Products under such KO Distribution Agreement are distributed to the exclusion of such KO/▇▇▇ KO/MEC Distributor. MELMEC’s rights to enter into agreements with other distributor/s (including Third Party Distributors) or otherwise market, distribute and sell Products or Monster Energy Drink/s, as the case may be, shall be limited to the Applicable applicable Sub-Territories for which such Distribution Refusal applies. 4.6.2. 1.8.2 KO hereby irrevocably grants ▇▇▇ MEC approval in advance for the distribution by KO/▇▇▇ such KO/MEC Distributors (subject to the last sentence of Section 3.2) of any and all Monster Energy Drink/s during the Term (ia) in ready to drink form, and (iib) such all other form(s), ) unless KO determines such other forms are not operationally or logistically viable for KO Distributors with respect to the distribution and related activities by KO Distributors as contemplated hereunder and under the KO Distribution Agreements, (provided that, for clarity, refusal to distribute or provide consent to any such non-viable non-ready-to-drink form of Monster Energy Products or of any Other Monster Drink or Other Product shall constitute “Refused New Products” (as defined below), with respect to Section 4.6.2 1.8.2 and 4.6.31.8.3). At any reasonable time prior to launching or otherwise commencing the sale or other distribution of any product SKUs SKU/s of Other Monster Drink/s or Other Products that ▇▇▇ MEC or any of its Affiliates may determine to sell or otherwise distribute after the Effective Date (each a “New Product SKUs”), ▇▇▇ MEC shall offer (i) KO the option to include such New Product SKUs as Products under this Agreement, and (ii) KO/▇▇▇ KO/MEC Distributors the right to distribute New Product SKUs, subject to the terms of the applicable KO Distribution Agreement, and where permissible under applicable law, subject to KO’s prior written approval of distribution by such KO Distributors of such New Product SKUs. Without prejudice to MELMEC’s rights under Section 4.6.1 1.8.1 above, to the extent that KO or the applicable KO/▇▇▇ KO/MEC Distributor refuses to approve of adding New Product SKUs or any product SKUs of Monster Energy Products (collectively collectively, “Refused New Product/s”) to a KO/▇▇▇ KO/MEC Distributor’s KO Distribution Agreement within fifteen (15) days of MELMEC’s request that New Product SKUs be added, ▇▇▇ MEC shall have the right, subject to Section 4.6.3 1.8.3 below, to sell, have sold sold, or otherwise distribute in the applicable Sub-Territory, such Refused New Product SKUs Products (but not, subject to Section 4.6.1 1.8.1 above for clarity, any other Products or New Product SKUs) ), to the exclusion of such KO/▇▇▇ Distributors, KO/MEC Distributors through other distributors selected by ▇▇▇MEC, after an additional fifteen (15) days written notice to KO of its intention to do so and KO and/or the applicable KO/▇▇▇ KO/MEC Distributor, as the case may be, do not provide such approval prior to expiration of such fifteen (15) day period. MELMEC’s right to sell, have sold, or otherwise distribute such Refused New Products/New Product SKUs pursuant to this Section 4.6.2 1.8.2 shall be limited to the Sub-Territories for which such approval has not been granted. 4.6.3. ▇▇▇ 1.8.3 MEC may, in its sole and absolute discretion, offer KO/▇▇▇ KO/MEC Distributors the right to distribute any Refused New Products on such terms as ▇▇▇ MEC may determine in its sole and absolute discretion. Without limiting the foregoing, prior to launching or otherwise commencing the sale, commercialization or other distribution of any Refused New Products or entering into any contract or arrangement with respect to the acquisition, directly or indirectly, of any ownership interest in, or the management or control of, any business or assets relating to any Refused New Products, ▇▇▇ MEC shall notify KO in writing of its intention to do so and the Parties shall discuss in good faith potential business relationships or other commercial opportunities relating to the commercialization of such Refused New Products (on mutually agreeable terms), with the joint goal of promoting each Party’s focus on its core business and alignment between them and their respective product offerings, for a period of thirty (30) days or such longer period agreed upon by the Parties.

Distribution Refusal. 4.6.1. If, after the Distributor Negotiation Process provided for in Sections Section 4.1 above, including MEL’s good faith effort to meet and confer with the applicable Distributor to resolve any differences differences, (a) a Proposed Distributor fails to deliver a Distribution Commitment or, in breach of its agreement with ▇▇▇, a KO/▇▇▇ Distributor, at any time thereafter, otherwise refuses to distribute or to continue to distribute substantially all Monster Energy Drink/s, as the case may be, designated by ▇▇▇ in good faith for sale in the Applicable Sub-Territory, (b) KO has not provided consent (to the extent required) to such KO Distributor to distribute substantially all Monster Energy Drink/s, as the case may be, designated by ▇▇▇ in good faith for sale in the Applicable Sub-Territory, (c) KO has not provided consent (to the extent required) to an applicable KO Distributor to distribute substantially all Other Monster Drinks or Other Products included in the Products, as the case may be, designated by ▇▇▇ in good faith for sale in the applicable Sub-Territory or (d) KO has provided such consent to such KO Distributor’s distribution of Other Monster Drinks or Other Products but such KO Distributor refuses to distribute or to continue to distribute substantially all such Other Monster Drinks or Other Products, as the case may be (each, as to such category of Monster Energy Drinks, Other Monster Drinks or Other Products subject to such refusal, a “Distribution Refusal”), ▇▇▇ shall have the right, subject to Section 4.6.5, to market, distribute and sell, and/or to continue to market, distribute and sell, directly or through a third party distributor, to the exclusion of KO or such KO/▇▇▇ Distributor, as the case may be, all or substantially all of the Product SKUs (including the declined Products), of such applicable category of Products subject to such Distribution Refusal (i.e., Monster Energy Drinks, Other Monster Drinks or Other Products, as the case may be), so designated for sale by ▇▇▇ in the Applicable Sub-Territory, upon forty-five (45) days written notice to KO (with a copy to the Chief Executive Officer and Chief Financial Officer of KO) of its intention to do so; provided that such Distribution Refusal continues to exist after such forty-five (45) day period. In such event, the KO Distribution Agreement with such KO/▇▇▇ Distributor may be terminated by the KO/▇▇▇ Distributor if substantially all of the Products under such KO Distribution Agreement are distributed to the exclusion of such KO/▇▇▇ Distributor. MEL’s rights to enter into agreements with other distributor/s (including Third Party Distributors) or otherwise market, distribute and sell Products or Monster Energy Drink/s, as the case may be, shall be limited to the Applicable Sub-Territories for which such Distribution Refusal applies. 4.6.2. KO hereby irrevocably grants ▇▇▇ approval in advance for the distribution by KO/▇▇▇ Distributors (subject to the last sentence of Section 3.2) of any and all Monster Energy Drink/s during the Term (ia) in ready to drink form, and (iib) such other form(s), unless KO determines such other forms are not operationally or logistically viable for KO Distributors with respect to the distribution and related activities by KO Distributors as contemplated hereunder and under the KO Distribution Agreements, (provided that, for clarity, refusal to distribute or provide consent to any such non-viable non-ready-to-drink form of Monster Energy Products or of any Other Monster Drink or Other Product shall constitute “Refused New Products” (as defined below), with respect to Section 4.6.2 and 4.6.3). At any reasonable time prior to launching or otherwise commencing the sale or other distribution of any product SKUs of Other Monster Drink/s or Other Products that ▇▇▇ or any of its Affiliates may determine to sell or otherwise distribute after the Effective Date (each a “New Product SKUs”), ▇▇▇ shall offer (i) KO the option to include such New Product SKUs as Products under this Agreement, and (ii) KO/▇▇▇ Distributors the right to distribute New Product SKUs, subject to the terms of the applicable KO Distribution Agreement, and where permissible under applicable law, subject to KO’s prior written approval of distribution by such KO Distributors of such New Product SKUs. Without prejudice to MEL’s rights under Section 4.6.1 above, to the extent that KO or the applicable KO/▇▇▇ Distributor refuses to approve of adding New Product SKUs or any product SKUs of Monster Energy Products (collectively “Refused New Product/s”) to a KO/▇▇▇ Distributor’s KO Distribution Agreement within fifteen (15) days of MEL’s request that New Product SKUs be added, ▇▇▇ shall have the right, subject to Section 4.6.3 below, to sell, have sold or otherwise distribute in the applicable Sub-Territory, such Refused New Product SKUs Products (but not, subject to Section 4.6.1 above for clarity, any other Products or New Product SKUs) to the exclusion of such KO/▇▇▇ Distributors, through other distributors selected by ▇▇▇, after an additional fifteen (15) days written notice to KO of its intention to do so and KO and/or the applicable KO/▇▇▇ Distributor, as the case may be, do not provide such approval prior to expiration of such fifteen (15) day period. MEL’s right to sell, have sold, or otherwise distribute such Refused New Products/New Product SKUs pursuant to this Section 4.6.2 shall be limited to the Sub-Territories for which such approval has not been granted. 4.6.3. ▇▇▇ may, in its sole and absolute discretion, offer KO/▇▇▇ Distributors the right to distribute any Refused New Products on such terms as ▇▇▇ may determine in its sole and absolute discretion. Without limiting the foregoing, prior to launching or otherwise commencing the sale, commercialization or other distribution of any Refused New Products or entering into any contract or arrangement with respect to the acquisition, directly or indirectly, of any ownership interest in, or the management or control of, any business or assets relating to any Refused New Products, ▇▇▇ shall notify KO in writing of its intention to do so and the Parties shall discuss in good faith potential business relationships or other commercial opportunities relating to the commercialization of such Refused New Products (on mutually agreeable terms), with the joint goal of promoting each Party’s focus on its core business and alignment between them and their respective product offerings, for a period of thirty (30) days or such longer period agreed upon by the Parties.