MEMBER PURCHASE AGREEMENT
This MEMBER PURCHASE AGREEMENT is entered into as of this
1st day of August, 1994, by and between SOUTH ATLANTIC
CANNERS, INC., a South Carolina corporation, hereinafter referred
to as "SAC," and CCBCC, a Delaware corporation, hereinafter referred
to as "Member."
WHEREAS, SAC processes Coca-Cola and other soft drink
beverage products ("Beverage Products") and distributes and sells
them to its members on a cooperative basis; and
WHEREAS, Member is a franchised Coca-Cola bottler which has
satisfied SAC's qualifications for membership and intends to
purchase Beverage Products from SAC in accordance with this
Agreement,
NOW, THEREFORE, in consideration for the mutual undertakings
described herein and other good and valuable consideration, the
parties hereby agree as follows:
Section 1. Purchase Requirement.
A. Member agrees to a minimum purchase requirement of
the lessor of:
(1) eighty percent (80%) of Member's monthly
Coca-Cola PET two liter bottle product ("2 Liter Bottled
Product") requirements, or
(2) 1,300,000 (one million three hundred thousand) cases
of 2 Liter Bottled Product on an annual basis and not less than five percent
(5%) of this amount on a monthly basis.
SAC agrees to sell and deliver such products in accordance with
this Agreement. As used herein, the terms "Coca-Cola product"
and "Coca-Cola products" mean any soft drink product made or
offered by The Coca-Cola Company.
B. The purchase and sale requirement in Section 1A(1)
of this Agreement applies to all 3 Liter Bottled Product used
during the term of this Agreement by Member in Member's business
or businesses at the facilities listed in Attachment A. SAC
agrees to use its best efforts to sell Member additional 3 Liter
Bottled Product up to Member's total requirements.
C. In the event SAC is unable for any reason to supply
Member with 3 Liter Bottled Product for which it is obligated
under this Agreement, SAC shall release Member from Member's
commitment to buy such products from SAC, and Member shall
likewise release SAC from its commitment to sell such products,
only with respect to that portion of the 3 Liter Bottled Product
that SAC is unable to fill from SAC's production and only with
respect to the time interval during which SAC is unable to fill
Member's orders from SAC's production. In the event it should be
necessary to allocate SAC's production among parties entering
into agreements similar to this one, such shortage allocation
shall be made among those parties on the basis of their relative
patronage for the prior six (6) month period or on such other
basis as may be determined by SAC's Board of Directors ("SAC
Board"), whose decisions shall be binding.
Section 2. Price.
SAC will sell 3 Liter Bottled Product at such prices as may
be set from time to time by the SAC Board and shall make
patronage refunds in accordance with SAC's Bylaws ("Bylaws").
Member shall pay SAC in full within the payment time period
specified by the SAC Board. Such time period shall be specified
on the invoice along with any charges for late payment. If
payments are not made on a timely basis, SAC may elect to make
future shipments on a C.O.D. basis.
Section 3. Term.
A. Except as provided in Subparagraph B of this
Section, this Agreement shall be binding upon the parties until
such time as either party gives the other party twelve (12)
months' written notice of termination; provided, however, that
(l) either party shall have the right to terminate this Agreement
upon thirty (30) calendar days' written notice in the event the
other party files a voluntary petition in bankruptcy, is
adjudicated a bankrupt, is adjudged insolvent, makes a general
assignment of assets for the benefit of creditors, or has a
receiver appointed due to insolvency; and (2) SAC may terminate
this Agreement if Member (a) fails to meet the requirements for
membership in accordance with Section 2 of Article II of the
Bylaws, (b) fails to cure a material breach of this Agreement
within forty-five (45) days of receiving notice thereof, or (c)
has been found by SAC to have engaged in more than one violation
of Section 7 of this Agreement relating to Transshipping.
B. This Agreement may be terminated in accordance with
Subparagraph 2 of Section 9-B in the event the Force Majeure
provisions of that Subparagraph are met.
C. If SAC fails to maintain, for any continuous
period of six (6) months ("Comparison Period"), an average price
for 3 Liter Bottled Product at or below the "Average Product
Price" or a quality of 3 Liter Bottled Product at a level equal
to or better than the "Customary Product Quality," Member shall
have the option to terminate its purchase obligation under this
Agreement upon sixty (60) days' written notice delivered to SAC
within three (3) months after the close of the Comparison Period.
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As used herein, the term "Average Product Price" shall mean the
average price charged by two other manufacturers of Coca-Cola
products selling in the eastern United States capable of
producing quantities desired by Member during the Comparison
Period, and the term "Customary Product Quality" shall mean the
standard quality of Coca-Cola products customarily sold by other
manufacturers of such products in the eastern United States
during the Comparison Period. For purposes of determining SAC's
average price for 3 Liter Bottled Product, the patronage dividend
to be received by the members for such period shall be taken into
consideration in determining the price charged members. If the
exact amount of the patronage dividend has not been determined
for the Comparison Period, reasonable estimates may be used for
this purpose.
Section 4. Purchase Estimates and Orders. Member agrees to
provide SAC with estimates of its purchases of 3 Liter Bottled
Product at such times and places as shall be required by the SAC
Board. Member shall place all orders with SAC at least fifteen
(15) calendar days prior to the requested delivery date.
Section 5. Delivery. SAC shall ship 3 Liter Bottled
Product to Member within a reasonable time after receipt of an
order from Member that is within ten percent (10%) of the
estimated amount previously submitted to SAC by Member for such
period. Delivery shall be upon such terms as the SAC Board may
determine from time to time. Member agrees to accept delivery in
such manner as provided by SAC in accordance with the policy
established by the SAC Board.
Section 6. Certain Events of Default/Damages.
A. If Member (a) fails to purchase any 3 Liter Bottled
Product for a period of sixty (60) calendar days, (b) fails to
meet its purchase requirements pursuant to Section 1 of this
Agreement or the Bylaws for a period of sixty (60) calendar days,
(c) loses its Coca-Cola franchise or otherwise ceases to be
engaged in the business of a franchised Coca-Cola bottler on
account of dissolution, merger, reorganization, or any other
reason and in any of such events has not given SAC twelve (12)
months' written notice of the termination of this Agreement as
provided in Section 3 of this Agreement, or (d) Member otherwise
terminates this Agreement without giving twelve (12) months'
notice of termination as provided in Section 3 of this Agreement,
such action shall constitute an Event of Default and Member shall
pay SAC as liquidated damages for failure to give the required
notice of termination an amount equal to the sum of its 3 Liter
Bottled Product purchases during the immediately preceding twelve
(12) month period minus operating costs to SAC reasonably
associated with such production, and the amount of the Member's
proportionate interest in capital improvements purchased, or
capital improvements which SAC is under contract to purchase, for
3 Liter Bottled Product for the twelve (12) month notice period.
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For this purpose, a Member's proportionate interest shall be
measured by its 3 Liter Bottled Product patronage volume over the
preceding twelve (12) month period in comparison with the total
3 Liter Bottled Product patronage volume for SAC during such
period. These amounts shall be paid within twenty (20) days of
Member's receipt of notice of the amount due from SAC.
B. Liquidated damages specified in Subparagraph A of
this Section apply only to those damages arising from the failure
to give the requisite notice of termination. Member shall be
responsible for any and all other liability, loss, or damage
arising from any other breach of the Agreement by Member.
C. Damages arising under Subsection A of this Section
6 by virtue of a merger, sale of assets, or other reorganization
in which the former Member's business as a franchised Coca-Cola
bottler is continued by another individual or entity ("Successor
Bottler") shall be abated if (l) the Successor Bottler applies
for and is approved as a member of SAC within thirty (30) days of
such reorganization or (2) the Successor Bottler agrees to honor
and abide by the twelve (12) months' written notice requirement
for termination between SAC and the former member. Member
represents that it will use its best efforts to cause the
Successor Bottler to apply for and be selected as a member of
SAC.
D. In addition to any other rights and remedies
arising under this Agreement, SAC shall be entitled, without
notice to Member, to set off and apply all amounts otherwise
payable under the Bylaws to Member upon withdrawal from SAC
against any and all obligations and liabilities of Member arising
under this Section 6.
Section 7. Transshipping.
A. Members shall not engage in transshipping of
Coca-Cola products in violation of requirements established by
The Coca-Cola Company ("Transshipping").
B. In the event that Member is determined to have
engaged in Transshipping, Member shall indemnify and hold
harmless SAC from any and all claims, losses and liabilities
incurred by SAC growing out of or resulting from such incident or
incidents of Transshipping. The rights of SAC under this Section
7 shall be in addition to other rights and remedies provided for
herein or otherwise available to SAC.
Section 8. Loss of Membership Qualification. In the event
Member ceases to be qualified for membership under Section 2 of
Article II of the Bylaws and fails to surrender its shares of
stock to SAC within thirty (30) days of receiving notice of its
loss of qualification, Member hereby assigns all right, title,
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and interest in such shares to SAC, including the right to cancel
such shares.
Section 9. Miscellaneous.
A. Representation of Member. Member represents that
it has received a copy of SAC's Articles of Incorporation and
Bylaws and agrees to abide by and be bound by them as well as by
any amendments thereto. In the event of a conflict between the
Articles of Incorporation or Bylaws and the terms of this
Agreement, the provisions of the Articles of Incorporation or
Bylaws shall govern.
B. Force Majeure.
1. If performance of this Agreement is prevented
or restricted by an event of Force Majeure, the party so affected
upon giving prompt notice to the other party shall be temporarily
excused from the performance so prevented or restricted. As used
herein, the term "Force Majeure" shall mean any causes or
contingencies beyond the reasonable control of the party affected
thereby, including but not limited to acts of God, fire,
explosion, breakdown or failure of plant machinery, strike,
walk-out, labor dispute, casualty or accident, lack of or failure
in whole or in part of transportation facilities, lack of or
failure in whole or in part of sources of supply of labor, raw
materials, acts of local, state, or federal governmental bodies
or agencies, or other such occurrences whether or not of like or
similar nature.
2. If an event of Force Majeure persists for
longer than (a) a period necessary to promptly and diligently
pursue efforts to overcome the event of Force Majeure or (b) a
period of four (4) months, whichever period is shorter, then the
party which is not affected by the Force Majeure may, upon ten
(10) days prior notice to the affected party, terminate this
Agreement without any liability of either party to the other.
C. Governing Law. This Agreement shall be interpreted
and construed in accordance with the laws of the State of South
Carolina, without regard to the conflict of laws provisions
thereof.
D. Severability. Should any part of this Agreement be
determined to be invalid or unenforceable, it shall not affect
the validity or enforceability of the remaining parts of this
Agreement. If any portion of this Agreement is unenforceable
because it is excessive or unreasonable, the parties intend that
such provision shall be binding and enforceable to the extent
that it is not excessive or unreasonable. In the event that an
arbitrator or court of competent jurisdiction determines that any
of the provisions of this Agreement specifically set forth herein
are incapable of being enforced, said arbitrator or court is
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authorized and requested to modify and enforce such provisions to
the maximum extent permitted by law so as to most nearly
implement the terms of this Agreement.
E. Notices. Any notices, requests, demands and other
communications to be given by any party hereunder shall be in
writing and shall be given by personal delivery, by overnight
delivery service or by registered or certified mail, postage
prepaid return receipt requested; and such notice shall be deemed
to be given at the time when the same shall be thus delivered or
mailed.
(i) Notices to be given to SAC shall be given to:
000 Xxxxxx Xxxxxx
P. O. Box 548
Bishopville, S.C. 29010
ATTN: President
Telecopy Number: (000) 000-0000
With a copy to:
Coca-Cola Bottling Co. Consolidated
0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopy Number: (000) 000-0000
(ii) Notices to Member shall be given to:
ATTN:
Either party may change its address for receiving notice by
written notice given to the other party.
F. Entire Agreement. This Agreement constitutes the
entire agreement of the parties and supersedes all prior written
or oral understandings.
G. No Waiver. Failure on the part of SAC to enforce
any of the provisions of this Agreement shall not constitute a
waiver of such breach or any succeeding breach, and shall not
affect the continuing obligation of the other party which shall
remain bound by the terms of this Agreement in all respects.
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H. Prior Canning Agreements Superseded to the Extent
Inconsistent with this Agreement. This Agreement supersedes any
outstanding Canning Agency Agreement or Contract Canners
Agreement between the parties which establish terms by which SAC
shall produce cans or other products for Member, to the extent
such agreements are inconsistent with this Agreement.
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be duly executed all as of the date first written
above.
SOUTH ATLANTIC CANNERS, INC. /s/ Xxxxx X. Xxxxxx
By: By: Xxxxx X. Xxxxxx
Title: Title: VP & CFO
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ATTACHMENT " A "
Please list the locations, city and county, of the
facilities covered by this Agreement.
MEMBER:
By:
Title:
