EXHIBIT 10.34
SWEETENER SALES AGREEMENT--BOTTLER
THIS AGREEMENT ("Agreement"), made and entered into this 10th day of
July, 1997, by and between THE COCA-COLA COMPANY, a Delaware corporation
("Company"), through its Coca-Cola USA Division, and the subsidiaries of
Coca-Cola Enterprises Inc.(listed on Exhibit C), a Delaware corporation
("Bottler");
W I T N E S S E T H:
WHEREAS, Company has otherwise granted Bottler the right to manufacture
from concentrate and/or beverage base certain carbohydrate sweetened soft
drink beverages and/or syrups ("Products") under one or more agreements
("Authorization Agreements");
WHEREAS, Bottler plans to purchase carbohydrate sweeteners for use in
its manufacture of Products and not for resale or delivery to a third party;
WHEREAS, Company is engaged in the procurement of carbohydrate
sweeteners for its own purposes and has acquired certain skill and knowledge
in connection therewith;
WHEREAS, Bottler desires to take advantage of the skill, knowledge and
services of Company in the procurement of carbohydrate sweeteners;
WHEREAS, subject to the terms and conditions of this Agreement, Bottler
is willing to purchase carbohydrate sweeteners from Company and Company is
willing to sell carbohydrate sweeteners to Bottler;
NOW, THEREFORE, in consideration of the premises hereof and of the
mutual promises contained herein, the parties hereto agree as follows:
Section 1. Definitions.
As used in this Agreement, the following terms have the specified
meanings:
(a) "Originating Supplier" means the carbohydrate sweetener
supplier which sells the sweeteners to or processes the sweeteners for
Company.
(b) "Sweeteners" means carbohydrate sweeteners derived from
sugar cane, sugar beet, corn or other source(s) approved by Company.
(c) "Bottler Customer" means any bottler of Coca-Cola for whom
Bottler manufactures carbohydrate sweetened soft drink beverages and/or
syrups using Sweeteners delivered hereunder.
Section 2. Authorization.
For purposes of Bottler's compliance with sweetener quality assurance
requirements independently established by Coca-Cola USA, Company shall be
deemed an approved supply point for Sweeteners furnished hereunder for
Bottler's manufacture of Products from concentrate and/or beverage base.
Nothing in this Agreement shall be construed to authorize Bottler to purchase
or use any concentrate or beverage base in the manufacture of syrups
or beverages.
Section 3. Purchase, Sale and Usage of Sweeteners.
Company shall sell to Bottler and Bottler shall buy from Company all of
Bottler's requirements for Sweeteners. Bottler shall use the Sweeteners only
in its own manufacturing operations in the manufacture of products of Company
and approved non-Company products for itself and approved Bottler Customers.
Bottler shall not resell or arrange for the delivery to any third party of
Sweeteners covered by this Agreement. Approval of each Bottler Customer and
each non-Company product shall be within the sole discretion of Company.
The Sweeteners shall conform to the specifications in effect between
Company and the Originating Supplier(s) as may from time to time be revised by
Company (the "Specifications"). The Specifications (which may also include
quality control requirements for Sweeteners as set forth in Section 7 below)
shall be automatically incorporated herein by reference as Exhibit A and made
a part hereof.
Bottler shall furnish a good faith forecast of its requirements for
Sweeteners no later than October 1 of the year preceding the calendar year of
Sweetener delivery. The forecast shall set forth the types and quantities of
Sweeteners for each receiving location, for the calendar year and by delivery
month. The forecast shall list by name all proposed Bottler Customers and all
proposed non-Company products, and state the quantity for the calendar year of
each type of Sweetener for all Bottler Customers, collectively, and for all
non-Company products, collectively. Subject to approval within Company's sole
discretion, the forecast shall be amended to subtract quantities of Sweeteners
allocable to any non-approved Bottler Customers and/or non-Company products.
Bottler shall promptly advise Company of any proposed amendment to the approved
forecast, including any proposed change to the list of Bottler Customers and
non-Company products identified in the forecast. If approved in writing by
Company within its sole discretion, the amended forecast shall become the
approved forecast. Bottler shall be obligated to purchase the stated aggregate
quantity for each type of Sweetener listed in the forecast, plus or minus
five percent (5%).
If, without the express written approval of Company, Bottler fails to
comply with any provision of this Section 3, Company may, within its sole
discretion and without liability or advance notice, either terminate this
Agreement or reduce one or more future deliveries of Sweeteners hereunder such
that the aggregate deliveries to Bottler during any calendar year do not
exceed Bottler's actual requirements for use in its manufacture of Company and
approved non-Company products for itself and approved Bottler Customers.
Section 4. Pricing.
Company shall furnish price quotations based upon Bottler's instructions as
to date of pricing, quantity to be delivered and delivery period. The quantity
specified by Bottler shall be substantially in accordance with the monthly
quantities in the forecast. Bottler's acceptance of Company's quotations shall
establish the price and the quantity for delivery hereunder for the affected
delivery period. For pricing purposes, the delivery period shall be one or more
whole calendar months. If Bottler has not established a price by thirty (30)
days prior to a calendar month, then the price for that month shall be as
established by Company based on market conditions existing at that time for the
quantities to be delivered and the delivery period. However, if market
conditions indicate a delay in pricing, the Company may waive the
thirty-day requirement. In the event Bottler has not otherwise specified the
quantity to be delivered prior to the date that pricing is established, the
quantity shall be that set forth in the forecast.
Company reserves the right upon written notice given on or before August
1st of any year to charge Bottler an amount to be determined within Company's
sole discretion for Company's services hereunder. This charge shall take
effect on January 1st of the next calendar year (or such later date as may be
specified in the notice) provided, however, Bottler shall have the right to
terminate this Agreement upon written notice given not later than three (3)
months preceeding the effective date of the charge.
Section 5. Invoicing and Payment.
Company shall invoice Bottler taking into account payment terms in
effect between the Originating Supplier(s) and Company. Invoices will be for
the net amount with any and all customary discounts available to Company
having been considered in establishing the price to Bottler.
Payment will be due within ten days from the date of invoice. Invoices
not paid within such ten-day period will be subject to interest charges.
Section 6. Delivery.
Delivery hereunder shall commence with the first calendar month set forth
in the forecast and continue until this Agreement terminates as provided in
Section 8 below. No later than the date of Company's quotation, the parties
hereto shall establish the terms of delivery which depend upon the type of
Sweeteners and the Originating Supplier. If not otherwise established at the
time, price quotations and established pricing shall be predicated upon
Company's delivery terms in effect with the Originating Supplier, adjustments to
be made by Company in accordance with terms for delivery to Bottler. Final
scheduling of deliveries shall be arranged by Bottler either directly or
indirectly (as specified by Company), with the Originating Supplier.
Section 7. Quality.
Bottler agrees to comply strictly with the terms of the Specifications,
and any requirements independently issued by Coca-Cola USA to bottlers of
Coca-Cola, relating to quality control with respect to Sweeteners, which terms
and requirements, if any, or any reissue thereof by Company, are made an
integral part of this Agreement. Bottler also agrees to submit samples of
Sweeteners in accordance with instructions as may be given by Company.
Bottler agrees to defend, indemnify and hold Company harmless against loss,
liability and damages caused by Bottler's failure to adhere to the
aforementioned terms, requirements and instructions of Company.
Section 8. Term and Termination.
This Agreement shall become effective on the date of first above written
and continue until December 31, 2002 ("Initial Period"), subject to automatic
renewal for successive one (1) year periods unless terminated at the end of
the initial period or any renewal by either party giving the other at least
ninety (90) days' written notice prior to the next renewal.
Section 9. Confidentiality.
In conjunction with performance under this Agreement, Company has
disclosed and anticipates disclosing or making available to Bottler, orally
and/or in writing, confidential information, including, but not limited to,
information relating to pricing, forward coverage and other terms of purchase
of Sweeteners. In consideration thereof and of Company entering into this
Agreement, Bottler shall (1) hold all such confidential information in strict
confidence, (2) not disclose such information to any other party, including,
but not limited to, a party considering acquiring an equity interest in
Bottler or a party acquiring soft drinks from Bottler and (3) not disclose
such information to any of its employees involved in the purchasing of
sweeteners other than Sweeteners hereunder or, except on a need-to-know basis,
to any of its other employees. Any officer or employee of Bottler receiving
such confidential information shall be bound by the provisions of this
Section 9 as though a party hereto. In the event of a breach of this
Section 9 by Bottler or its officers or employees, Company may, within its
sole discretion and without liability or advance notice, terminate this
Agreement.
Section 10. Record Keeping and Auditing.
Bottler shall maintain records for two (2) years following the year of
Sweetener delivery adequate to substantiate compliance with all provisions of
this Agreement. Such records shall be available for inspection and auditing
by Company or its designee(s) upon notice during normal business hours. If
Bottler fails to fully comply with any provision of this Section, Company may,
within its sole discretion and without liability or advance notice, terminate
this Agreement.
Section 11. Force Majeure.
Neither party shall be liable to the other for loss, damage, or delay in
delivery or receipt of sugar caused by act of God, war conditions, compliance
with governmental laws, regulations, orders or actions, embargo, fire, flood,
accident, strike or labor trouble, transportation difficulty, or other similar
event where the occurrence of such event is beyond the control of and occurs
through no fault of either party. Further, neither party shall be liable to
the other for termination or suspension of delivery by the Originating
Supplier pursuant to force majeure provisions in Company's agreement(s) with
such Originating Supplier.
Section 12. Other Agreements.
All other agreements between the parties hereto shall continue in full
force and effect. Under no circumstances shall this Agreement be construed to
modify, amend, supersede or waive any provision of any other agreement between
the parties unless the same is expressly so stated in writing signed by the
parties with a specific reference to the other agreement.
Section 13. Notices.
Any notice, request, approval or other document required or permitted to
be given to either party under this Agreement shall be deemed to be duly given
when transmitted by telegraph, telex or deposited in the United States mail,
postage prepaid for mailing by first class addressed to the other party as
follows:
If to Bottler:
the last known address
If to Company:
Coca-Cola USA
P. 0. Drawer 1734
Xxxxxxx, Xxxxxxx 00000
Attention: Director, Global Sweeteners
Global Procurement & Trading
Section 14. Entire Agreement.
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This Agreement constitutes the entire understanding and Agreement
between parties with respect to subject matter hereof and cancels and
supersedes any prior negotiations, understandings and agreements, whether
verbal or written, with respect thereto.
Section 15. Waivers, Modifications, Amendments.
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No waiver, modification or amendment of any provision of this Agreement
shall be valid or effective unless made in writing and signed by a duly
authorized representative of each party.
Section 16. Applicable Law.
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The validity, interpretation and performance of this Agreement shall be
governed and construed in accordance with the laws of the State of Georgia as
though this Agreement were fully made and performed within the State of
Georgia.
Section 17. Assignment.
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This Agreement is deemed to be of a personal nature, and Bottler may not
assign or transfer this Agreement or any interest therein or undertake any
transaction or series of transactions which would result in an effective
transfer of this Agreement or any interest therein, or sublicense or assign
any rights or obligations hereunder, or delegate or subcontract performance
hereof, in whole or in part, to any third party or parties, without the prior,
express, written consent of Company. For purposes of this Section 17, a
change in ownership of fifty percent (50%) or more of the voting equity in
Bottler will be deemed to be an assignment. Because this clause is considered
a material part of the bargain between the parties, any attempt to do so shall
be void and shall, at Company's option, have the effect of terminating this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized representatives as of the date first above written.
THE COCA-COLA COMPANY,
acting by and through its
COCA-COLA USA DIVISION
By: /s/ XXXX X. XXXXXXXXXXX
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President, The Coca-Cola
Trading Co. and Director of
Title: Global Procurement and Trading
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BOTTLER
By: /s/ XXXXX X. XXXXXXXXX
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President and Chief Operating Officer
Title: Coca-Cola Enterprises Inc.
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