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commenced on January 1, 1995, and extended through January 1,
2000.4
As part of the agreement, Pepsi agreed to provide certain
monetary support to the theater company based upon its purchases
of Pepsi products. Pepsi agreed to pay 65 cents for each gallon
of postmix product purchased by the theater company. The parties
designated this type of incentive as flex funds. The agreement
provided:
NATIONAL ACCOUNT PRICES AND FLEX FUND ALLOWANCES
* * * * * * *
All standard flex funds will accrue on a semi-annual
basis and will be paid to the Customer accordingly.
The Customer will receive all $.65 per gallon under the
flex fund program, which will be deemed earned by the
Customer upon payment by Pepsi-Cola of the Flex Funds
to the Customer.
Pepsi also provided marketing support to the theater company at
the rate of $2.05 for each gallon of postmix product purchased.
The parties designated these funds as marketing funds and
provided as follows:
MARKETING FUND
During each year for the Term of this Agreement, Pepsi-
Cola will accrue a marketing fund (“the Marketing
Funds”) at the rate of $2.05 per gallon on all Postmix
Products purchased by the Customer during each year.
Pepsi-Cola will pay these Funds to the Customer each
year within 60 days after the completion of each 6-
month period, starting from the anniversary date and
4 At the time of trial, Mr. Harkins was negotiating a new
agreement with Pepsi.
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Last modified: May 25, 2011