AGREEMENT Agreement made by and between The Gatorade Company (?Gatorade?), an indirect subsidiary of PepsiCo, Inc., with of?ces at 555 West Monroe Street, Chicago, Illinois 60661, and The Ohio State University on behalf of its Athletic Department, having a principal of?ce at 2400 Olentangy River Road, Columbus, Ohio 432-10. WHEREAS, OHIO STATE is a multi-sport varsity athletic program governed by the National Collegiate Athletic Association and other sport governing bodies and who participates in the Big Ten Conference {the ?Conference?}; and WHEREAS, pursuant to NCAA rules, OHIO STATE owns or controls the courtside, sidelines, bench areas, and dugouts and other areas immediately contiguous with the non-fan accessible playing surfaces at all of its regular season home games sponsored by OHIO STATE, and owns or controls the sidelines and player bench areas at all OHIO STATE football team away games (the ?Players? WHEREAS, OHIO STATE is the owner of all rights, title and interest in designations comprising names, emblems, designs, colors, uniforms, logos, seals and symbols (collectively, the ?Marks?] which have come to be associated with OHIO STATE. OHIO STATE has the exclusive right to license the Marks for commercial purposes and has the right to grant the licenses and rights hereunder; and WHEREAS, GATORADE has the exclusive right to manufacture and distribute Series? products, including: GATORADE Pre-Game Fuel Drink and Energy Chews, Thirst Quencher, Thirst Quencher, GATORADE Protein Shake, Whey Protein Bar and Recovery Beverage; and EnduranceTM products: including Carb Energy Drink, Energy Chews, Endurance Formula, and Gatorlytes Electrolyte Supplement, individually, collectively and together {0023470 1 with such other sports drinks, energ drinks, electrolyte supplements and carbohydrate drinks and drink mixes {from which the Product is made] as Gatorade shall manufacture and for sell during the Term hereof [the "Product?); and WHEREAS, Gatorade desires to be a Sponsor of OHIO athletic programs and OHIO STATE desires for Gatorade to be a sponsor of OHIO athletic program; NOW, THEREFORE, in consideration of the mutual covenants herein contained, and in recognition of Gatorade?s sponsorship of OHIO athletic programs, the parties hereto agree as follows: 1) Tie?I'm The ?Term? of this Agreement shall be for a period of eight (8) years, commencing September 1, 2013 and terminating on August 31, 2021. Notwithstanding the above or any other term of this Agreement, beginning August 1, 2016, the parties have the right to re?examine Gatorade?s provision of Products to OHIO STATE as set forth in Section 703] of this Agreement [and a corresponding increase in OHIO deliverables as set forth in Section 5 of this Agreement] for the ?nal four years of the Agreement. If OHIO STATE determines that additional Products are needed to meet the needs of OHIO then-current training andfor sport performance hydration practices and can provide Gatorade with substantiation necessitating the increase, then OHIO STATE has the right to enter into exclusive, con?dential (to the extent permitted by Ohio law) good faith negotiations to increase the product allotment outlined in Section 7(b) of this Agreement, up to 25%. Should the parties be unable to agree upon an Amendment to Section 6(b} after 2 (C) one hundred ?fty {150) days of good faith negotiations, the Agreement shall continue without modi?cation. OHIO STATE agrees that six months prior to expiration of the Agreement, Gatorade shall enter into exclusive, con?dential [to the extent permitted by Ohio law) good faith negotiations, for a new agreement. If terms are not agreed upon by thirty (30} days before the expiration of the Agreement, then OHIO STATE shall thereafter be free to negotiate with a third party. 2] Territory The rights granted by OHIO STATE to Gatorade hereunder may be exercised in the United States of America (the ?Territory?]. 3) Use of Marks (bl Gatorade may use the name ?The Ohio State University? in connection with a statement that is a sponsor of OHIO athletic program? or similar language that is agreeable to both Gatorade shall present any proposed use of OHIO name to OHIO STATE for prior approval. Gatorade agrees that it will not parties. use the Marks in connection with its advertising, merchandising, promotion and sale of the Products without entering into a separate license agreement with OHIO STATE. With the exception of Coca-Cola products which will be sold during Games and will be displayed on concession menuboards, OHIO STATE agrees that it will not grant promotional rights during the Games [as de?ned in Section to any Competitive Product. Notwithstanding anything in this Agreement, Gatorade shall not display or deliver a message (associated with a contest, event or other term of this Agreement] which contains the Marks and for the phrase ?The Ohio State University? and any qualitative or comparative description about {00234701-1}- 3 - any Product, price information or other indications of savings or value associated with Gatorade?s Products, any message that otherwise endorses Gatorade?s Products or induces one to purchase or use Gatorade?s Products, or any message that causes Gatorade?s payments to not be treated as ?quali?ed sponsorship payments? as that term is de?ned in Internal Revenue Code Section 513(i) and related regulations. 4) Product Placementz? Use OHIO STATE shall exclusively place (in the manner speci?ed in Exhibit A) Gatorade-identi?ed cups, coolers, ice chests, squeeze bottles, sideline carts, towels and other innovated equipment later developed by Gatorade for purposes of storing, distribution, and using Product in Players? Areas or providing visibility presence in the Players? Areas [subject to OHIO approval of new equipment and new ?visibility presence?) to Products (hereinafter "Gatorade Merchandise") in all Players? Areas at all OHIO STATE intercollegiate home athletic events and away football athletic events, including all regular-season, pre-season, post-season and exhibition games if OHIO STATE is the entity ?in control? of the game [the ?Games?}. With respect to away regular season games for sports other than football, regular season games sponsored by an entity other than OHIO STATE and all pre-season, post-season and exhibition games in which OHIO STATE is not the entity ?in control? of the game, then OHIO STATE agrees to use reasonable efforts to exclusively place Product and Gatorade Merchandise in the visiting team?s courtside, sidelines, bench areas, and dugouts. Should the governing entity refuse to allow Product and Gatorade Merchandise in the visiting team?s courtside, sidelines, bench areas, and dugouts, OHIO STATE shall request the use of generic, non?branded materials in these areas. OHIO {002347014}- 4 - obligations in this section are subject to NCAA or other governing body guidelines and regulations regarding individual player endorsements (and subject to Conference and other governing body guidelines with respect to post-season games). No other beverage, beverage container, bar or chew product (excluding non-labeled and non- competitive food products such as bananas, etc. that do not ?t in Gatorade merchandise] shall be permitted to be placed or used in any Players? Areas during Games and in any Players? Areas immediately before after Games unless placed in Gatorade Merchandise. Gatorade acknowledges and agrees that while OHIO STATE shall make available Products for consumption by OHIO STATE student-athletes and athletic staff members in the locker rooms and pre? and post?game interview areas at Games, Gatorade recognizes that Competitive Products may also be consumed in these areas. OHIO STATE shall not grant promotional rights during Games of any kind, to any beverage, bar or chew product in or near the Players? Areas (including, but not limited to, on chairbacks, equipment, towels, tables, equipment cases and apparel}. Gatorade shall, annually and at its cost, provide and deliver to OHIO I STATE at least Fifteen Thousand Dollars wholesale value, worth of Gatorade Merchandise (including, but not limited to, visi- coolers, bag-in-box dispensing units and other newly innovated sidelines equipment] . 5} Promotional Ri Services OHIO STATE hereby grants Gatorade the following promotional rights and services during each year of the Agreement: {00234701-1}? 5 - (C) Tickets and Parking Passes: Eight season tickets (in areas similar to Gatorade?s current location) for all OHIO STATE home football and men?s basketball events each year of the Agreement. (ii) Six season tickets (in areas similar to Gatorade?s current location] for all OHIO STATE home hockey events each year of the Agreement. Two reserved parking passes for all OHIO STATE home football, men?s basketball, and men?s hockey events each year of the Agreement. (iv) Right to purchase six tickets to all post-season events in which OHIO STATE teams participate. Hospitalig: OHIO STATE will provide to Gatorade four (4) Remarkable Football Gameday Experiences throughout the Term. Remarkable Experience to include package for four participants, that includes game tickets, private tour of Ohio Stadium three hours prior to kick-off, photographs on the 50 yard line, ?oor seats for band skull session, and pre-garne ?eld passes. Games to be determined by OHIO STATE based on top four choices supplied by Gatorade. A maximum of one Remarkable experience can be used each year. Head Coach Appearances: In an effort to promote sports participation and the values associated with such participation and to promote OHIO athletic programs in particular, Gatorade has the right to request and receive [upon reasonable prior notice and subject to any coaching commitment} up to {00234701-1}- 6 - four football or men?s basketball head coaching appearances throughout life of contract. Each appearance will be two hours in duration not including travel time. Gatorade shall provide one round- trip, ?rst-class airline ticket tof from the appearance; one ?rst-class (which shall be mutually agreed upon) hotel accommodation for the night of the appearance; and exclusive ground transportation to and from airports and between the hotel and the location of the appearance. Notwithstanding the above {or unless otherwise agreed to by the coach}, Gatorade shall use its best efforts to have the coach appearance and travel to [from the appearance occur within the same day. Such appearances may include, but are not limited to, speaking engagements, appearances at sports clinics, celebrity events and other public appearances. No such appearance shall require any coach to participate in messaging in any media which contains, in OHIO discretion, comparative or qualitative descriptions of Gatorade?s products, price information or other indications of savings or value about Gatorade?s products, any message that otherwise endorses Gatorade?s products or induces one to purchase or use Gatorade?s products, or any message that causes Gatorade?s payments to not be treated as ?quali?ed sponsorship payments? as that term is de?ned in Internal Revenue Code Section 513(i) and related regulations. 6] Exclu sivitl ?Competitive Products? shall include all beverage, smoothie, powder, bar, chew, concentrate and for syrup (the ?Forms?] products that are marketed and! or promoted within the following need states (except not including foods): Fluid and Electrolyte Replacement and Hydration {00234701-1}- - including all Forms, whether carbonated or non?carbonated sports drinks, sports beverages, isotonics, electrolyte and ?uid replacement beverages and ,f or supplements that compete with Gatorade Thirst Quencher, G2, Gatorade Endurance Formula, or GatorLytes Electrolyte Supplement; Energy including all Forms that deliver energy to the body through ingredients like carbohydrates or ca?'eine that compete with Gatorade Prime products; Nourishment including all Forms that provide nutrition to the body through ingredients like carbohydrates, vitamins, or protein that compete with Gatorade Nutrition Shake; Recovery including all Forms that assist with muscle development and or aid in the recovery process by returning an athlete to a state of readiness through ingredients and supplements like carbohydrates, protein and antioxidants that compete with Gatorade Recover products; Enhanced Hydration {Waters} all packaged hypertonic, hypotonic or isotonic products, regardless of Form, that are enhanced {other than with trace amounts) with oxygen, ?avor, caffeine, vitamins, minerals, protein and} or carbohydrates and are marketed and/ or promoted as a sports performance beverage that compete with Prope1? Water Beverage, but excluding Glaceau VitaminWater, Glaceau SmartWater, and plain or pure water such as Dasani, Evian, and Aqua?na as they are currently formulated. No agreement or relationship will be entered into or maintained by OHIO STATE pursuant to which Competitive Products are associated in any manner with OHIO STATE which creates or tends to create the impression that OHIO STATE student athletes use Competitive Products during Games. {00234701-1}~ 8 - 7] Compensation (31) The sponsorship payment to be paid by Gatorade to OHIO STATE in consideration of the rights granted under this Agreement shall be Two Million Two Hundred Thousand Dollars ($2,200,000) The fee shall be paid according to the following schedule: {Vi} (vii) Upon Execution of this Agreement? Two Hundred Seventy Five Thousand Dollars September 1, 2014 Two Hundred Seventy Five Thousand Dollars September 1, 2015 Two Hundred Seventy Five Thousand Dollars September 1, 2016 - Two Hundred Seventy Five Thousand Dollars September 1, 2017 - 'I?wo Hundred Seventy Five Thousand Dollars September 1, 2018 No Hundred Seventy Five Thousand Dollars September 1, 2019 Two Hundred Seventy Five Thousand Dollars September 1, 2020 Two Hundred Seventy Five Thousand Dollars Gatorade will provide a ?credit fund? for OHIO STATE to utilize for purchases of Products on the Gatorade Team Zone website each year of this Agreement in the following amounts: (ii) September 1, 2013 One Hundred Twenty Thousand Dollars ($120,000) September 1, 2014 One Hundred Twenty Thousand Dollars {002347014}- 9 - (C) (431} ($120,000) September 1, 2015 One Hundred Twenty Thousand Dollars ($120,000) (iv) September 1, 2016 One Hundred TWenty Thousand Dollars ($120,000) September 1, 2017 One Hundred Twenty Thousand Dollars ($120,000) (vi) September 1, 2018 One Hundred Twenty Thousand Dollars ($120,000) (vii) September 1, 2019 One Hundred Twenty Thousand Dollars ($120,000) September 1, 2020 One Hundred Twenty Thousand Dollars ($120,000) In order to aid OHIO STATE in most ef?ciently fueling its student- athletes, Gatorade shall supply OHIO STATE with a customized Gatorade Sports Fuel Bar nutritional station at the OHIO STATE football practice facility for player use before, during and after practices and competitions, as set forth in the attached Exhibit B). In support of the OHIO STATE summer camp program, Gatorade will provide OHIO STATE with Gatorade Merchandise, premiums, and Product with retail value of up to One Hundred Seventy Thousand Dollars ($170,000) for each year of agreement. The actual amount of support shall based on upon the estimated summer carnp participants per year, and may vary accordingly. Should the law or PepsiCo policy change regarding execution of these youth camps, the parties shall negotiate in good faith for a reasonable replacement for this bene?t. The parties aclmowledge that Gatorade?s Willingness to pay the {00234701-1}- 10 - compensation set forth herein during the term of this Agreement is based on OHIO willingness and ability to exclusively place Product and Gatorade Merchandise in the Players? Areas for the Games. If, during the term of this Agreement, OHIO STATE loses the ability to cause Product and Gatorade Merchandise to be exclusively placed in all OHIO STATE Players? Areas during Games, Gatorade shall have the right, in its sole discretion, to terminate this Agreement, upon thirty (30] days? written notice to OHIO STATE. Should Gatorade decide not to terminate the Agreement, the parties will negotiate in good faith to determine the appropriate reduction, if any, to the compensation set forth herein. 8) Assignment This Agreement and all rights and duties hereunder are personal to the parties and shall not, without the prior written consent of the other party, be sublicensed or assigned. 9) Gatorade Indemni?cation STATE Responsibility OHIO STATE hereby agrees to be responsible for its negligent acts or omissions relating to its obligations under this Agreement. Gatorade hereby agrees to indemnify and hold harmless OHIO STATE and its trustees, of?cers, directors, agents and employees against any claims, demands, causes of action or damages, including reasonable attorneys? fees, arising out of Gatorade?s alleged or actual breach of this Agreement; {ii} any act or omission by Gatorade in the performance of this Agreement; the use, advertisement, or sale of any product distributed by Gatorade in connection with this Agreement; and, (iv) any premium or promotional items disseminated by Gatorade in connection {00234701-1}? 11 with this Agreement; provided that Gatorade is given prompt notice of, and shall have the option to undertake and conduct the defense of, any such claim, demand or cause of action. 10] Termination Without prejudice to any other rights they may have, the parties shall have the right to terminate this Agreement, by written notice, at any time if the other party shall be in breach of any material provision of this Agreement, and if such breach is not cured within thirty [30) days after notification. 11] Probation In the event that OHIO athletics department is placed on probation and such probation eliminates television coverage of OHIO football or men?s basketball games, then Gatorade shall be entitled to a rebate of 45% of the cash compensation set forth in Section 7(a) for each year during the probationary period. Should both OHIO football and men?s basketball programs be placed on probation in such a manner that television coverage of both is eliminated, then Gatorade shall be entitled to a rebate of 75% of the cash compensation set forth in Section 7(a} for each year during the probationary period where both football and men?s basketball television coverage is eliminated. 12) Relationship of the Parties Nothing herein contained shall be construed to place the parties in the relationship of partners or joint venturers or employer-employee and neither shall have the right to obligate or bind the other party in any manner whatsoever. Nothing in this Agreement shall be deemed to permit or empower Gatorade to conduct business in the name of, or on account of, OHIO STATE, or to incur or assume any expense, debt, obligation, liability, tax or responsibility on behalf of, or in the name of OHIO STATE or to act on {002347014}? 12 OHIO behalf or to bind OHIO STATE in any way whatsoever. 13) Warranty Each party represents that it has the right and authority to enter into this Agreement and to grant the rights hereunder. 14} Merger This writing constitutes the entire agreement and understanding between the parties hereto and cancels, terminates and supersedes any prior agreement, writing or understanding relating to the subject matter hereof. None of the provisions of this Agreement can be waived or modified except expressly in writing signed by both parties, and there are no representations, promises, agreements, warranties, covenants or undertakings other than those contained herein. If any term hereof shall be void or unenforceable, the remaining terms shall be in full force and effect. 1 5] Waiver The waiver by either party of a breach by the other party of any provision herein shall not in any way constitute a waiver of any succeeding breach of the same or any other provision. 16) Notices Any notice or any communication hereunder shall be in writing, shall be sent via registered or certi?ed mail, and shall be given when deposited, postage pre-paid, in the United States mail, addressed as set forth below, or to such other addresses either party shall advise the other in writing: If to Gatorade: The Gatorade Company Attn: Vice President Sports 85 Event Marketing 555 West Monroe Street, 10-2 Chicago, Illinois 60661 {00234701-1}- 13 - with a copy to: The Gatorade Company Attn: Gatorade Counsel 555 West Monroe Street, 11-12 Chicago, Illinois 60661 If to OHIO STATE: Diana Sabau Sr. Associate Athletics Director Strategic Communications 85 External Relations Ohio State Athletics 2400 Olentangy River Rd., Fawcett Center, 5th Floor Columbus, OH 43210 with a copy to: Julie D. Vannatta The Ohio State University Senior Assistant General Counsel for Athletics 1590 N. High St, Suite 500 Columbus, OH 43201 17] Proprietgy Names and Marks Except as provided for herein, neither party to this Agreement shall use the logo, trademark or name of the other without the other?s prior written approval which may be given or withheld at such party?s discretion. Neither party shall obtain, by this Agreement, any right, title or interest in the trademarks, names or logos of the other, nor shall this Agreement give either party the right to use, refer to, or incorporate in marketing, or other materials in names, logos or trademarks or copyrights of the other, except as expressly provided herein. 18) Television and Radio Nothing herein shall prohibit or limit OHIO right to contract with respect to television and radio broadcast rights for OHIO STATE games, r10r limit or prohibit any {00234701-1}- 14 advertisement on any products in connection with such broadcasts. 19] Con?dentialitv Except disclosure which may be required by law, the terms of this Agreement, including the ?nancial arrangements and the duration, shall be considered con?dential and shall not be disclosed by Gatorade or OHIO STATE to any third party, except OHIO accountants under con?dentiality Without the prior written consent of the other party. If OHIO STATE is subject to its state?s freedom of information act (FOIA) and receives a request for this agreement, it shall notify Gatorade 20) Governing Law This Agreement and shall be governed by the laws of the state of Ohio. Any actions brought pursuant to this Agreement shall be brought in a court of competent jurisdiction in the State of Ohio. 21) Survival The following provisions shall survive expiration or termination of this Agreement: 9, 16,19,20 and 21. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and {00234701-1}- 15 - year signed below. AGREED TO AND ACCEPTED: THE GATORADE COMPANY By: 04111 Shea Title: Senior Director Sports 85 Event Marketing Date: AGREED TO AND ACCEPTED: THE OHIO STATE UNIVERSITY ?sh/Ag. [ab (/Lx 4/ By: Geoffrey S. Chatas Title: Sr. VP for Business and Finance and CFO Date: {00234701?1}- 16 EXHIBIT A PLACEMENT OF GATORADE MERCHANDISE FOOTBALL Slocum! mom I Elam Marni?H NCAA Only i3 NCAA Only A Maw am In-m [ms I: ma-qr ours. I: u-o-r mm {all} ma: o: ms 5 oz mm: cums In um: males 1 mm tz-CE 1 Elm] mu 1 WM HULDEIS BASKETBALL 5mm: PER LAW MINI. I DIETS lad] swan: mucs mu: mm mum.-.- .-.- - 5 Hill! muss a a ll HMS I In?ll-E EM UM VH limlm'iu I: u) hm. mm Im-m mm ml run {00234701-1}- 17 - Exhibit This Exhibit, effective as of July 18, 2013, shall be an attachment to the sponsorship Agreement by and between The Gatorade Company (?Gatorade?), having its principal of?ce at 555 West Monroe Street, Chicago, Illinois 60661, and The Ohio State University on behalf of its Department of Athletics (?Ohio State?), having its principal of?ce at 2400 Olentangy River Road, Columbus, Ohio 43210 (individually herein, the ?Party,? and collectively herein, the ??Parties?) which is currently being renewed, negotiated and ?nalized. Notwithstanding the above, the Ohio State and Gatorade agree that Gatorade is fabricating and installing an ef?cient and attractive area in which to dispense Gatorade beverages and chew bars to Ohio State student- athletes before, during and after practices and competitions. Should any language in this Exhibit con?ict with the language in the main body of the Agreement, the language in the Exhibit shall predominate but only with respect to the subject matter herein. WHEREAS, Ohio State is a multi-sport varsity athletic program governed by the National Collegiate Athletic Association and who participates in the Big Ten Conference (the ?Conference?); WHEREAS, Ohio State owns or controls the area at the Site which it will designate to Gatorade as being the Delivery Point of the ?Fuel Bar" Module and the Woody Hayes Athletic Center in which the ?Fuel Bar? Module will be installed by Ohio State (all as de?ned in the Definitions Article 1 below); WHEREAS. Ohio State, subject to NCAA rules, regulations and guidelines, has an exclusive right to use the names, symbols, emblems, designs, colors, uniforms and logos of Ohio State (the ?Marks'j for commercial purposes and has the right to grant the licenses and rights hereunder; WHEREAS, Gatorade has the exclusive right to manufacture and distribute Series? products, including: GATORADE PRIM Pre-Garne Fuel Drink, Energy Chews and Nutrition Bar, Thirst Quencher, Thirst Quencher, GATORADE Protein Recovery Shake and Beverage; and EnduranceTM products: including Carb Energy Drink and Chews, Endurance Formula? drink and powder, Gatorlytes? Electrolyte Supplement, individually, collectively and together with such other sports performance products as Gatorade shall manufacture andfor sell during the term of the Ohio State Sponsorship Agreement (de?ned below in the Definitions Article 1) of this Exhibit (collectively, the ?Product?); WHEREAS, Gatorade desires to obtain the right to design, procure, construct, and deliver to the Delivery Point a certain ?Fuel Bar? Module for installation at the Site by Ohio State in order to house Product in the ?Fuel Bar? Module for usage by Ohio State student-athletes pursuant to the Ohio State Sponsorship Agreement, and to have a representative, if authorized by Ohio State, to observe and facilitate Ohio State?s installation of the ?Fuel Bar? Module, under the terms and conditions set forth in this Exhibit; and WHEREAS, Ohio State desires Gatorade to design, procure, construct, and deliver the ?Fuel Bar? Module to the Delivery Point for installation at the Site by Ohio State in order to house Product in the ?Fuel Bar? Module for usage by Ohio State student-athletes pursuant to the Ohio State Sponsorship Agreement, and to have the right to authorize a Gatorade representative to observe and facilitate Ohio State?s installation of the ?Fuel Bar? Module, under the terms and conditions set forth in this Exhibit. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Gatorade and Ohio State agree as follows: ARTICLE 1. DEFINITIONS. 1.1 ?Site? shall mean the property address where the ?Fuel Bar? Module will be installed by Ohio State, speci?cally The Woody Hayes Athletic Center located at 2491 Olentangy River Rd., Columbus, OH 43210. 1.2 ??Fuel Bar? Module? shall mean all the furniture, fixtures, equipment, and other component parts constituting the completed ?Fuel Bar? Module as depicted in the Proposed ?Fuel Bar? Module Details and Floor Plan. 1.3 ?Proposed ?Fuel Bar? Module Details and Floor Plan? shall mean all the proposed conceptual design details and speci?cations, module selections, colors, measurements, equipment model numbers or types, and floor plan for the ?Fuel Bar? Module as set forth in Exhibits 1 and 2 attached hereto. 1.4 ?Ohio State Sponsorship Agreement" shall mean that certain agreement between Ohio State and Gatorade dated September 1, 2013, of which this shall be Exhibit B. 1.5 ?Design Documents? shall consist of drawings and specifications, based on the Proposed ?Fuel Bar? Module details and Floor Plan, that establish in detail the types and quality levels of all materials, equipment, and systems for the ?Fuel Bar? Module as well as its installed location, including required electrical and plumbing rough-in locations on the Floor Plan, as accepted in writing by Ohio State. 1.6 ?Commencement? shall be the effective date of this Exhibit. 1.7 ?Delivery Acceptance? shall mean the date the ?Fuel Bar? Module has been inspected by Ohio State and preliminarily accepted in writing to Gatorade as generally conforming to the Design Documents and free from damage. 1.8 ?Final Acceptance? shall mean the date the ?Fuel Bar? Module has been installed by Ohio State, and accepted by Ohio State in writing to Gatorade as conforming to the Design Documents. 1.9 The ?Design Services Phase? of the Work shall mean Gatorade?s submittal of the Design Documents to Ohio State. {002347644 }2 1.10 The ?Delivery Phase? of the Work shall include Gatorade?s procurement, construction and Delivery of the ?Fuel Bar? Module. Ohio State shall be exclusively responsible for unloading and proper storage of the ?Fuel Bar? Module upon Delivery. 1.11 The ?Installation Phase? of the Work shall involve the installation of the ?Fuel Bar? Module at the Site by Ohio State. Gatorade will not have control over or charge of and will not be responsible for the installation of the ?Fuel Bar? Module at the Site; however, Gatorade may provide representatives at the Site during the Installation Phase, if authorized by Ohio State, to observe and facilitate Ohio State?s installation of the ?Fuel Bar? Module. 1.12 ?Delivery? shall mean the date the ?Fuel Bar? Module has been delivered at the designated Delivery Point. 1.13 ?Delivery Point? shall mean the unloading platform or clock designated by Ohio State at the Site or other mutually agreed-upon off-site storage facility. 1.14 The ?Work? shall mean the design, procurement, construction, and delivery of the ?Fuel Bar? Module required by the Exhibit, whether completed or partially completed, and includes all labor, materials, equipment, and services provided or to be provided by Gatorade to ful?ll Gatorade?s obligations thereunder. 1.15 ?Completion? shall mean, as to the Design Services Phase of the Work, the date that Ohio State has accepted in writing the Design Documents and, as to the Delivery Phase of the Work, the date of Delivery Acceptance, and as to the Installation Phase, the date of completed installation and Final Acceptance of the Work. 1.16 ?Term? shall be the period of time between Commencement and Final Acceptance of the Work. 1.17 ?Change Order? shall be a written instrument signed by both Parties stating their agreement upon a change in the ?Fuel Bar? Module, the amount of any cost to Ohio State for such change, and the extent of any adjustment in the Term. 1.18 ?Claims? are all claims, disputes and other matters raised by either party arising out of or relating to the Exhibit or the breach thereof. 1.19 ?Changes? shall consist of additions, deletions or modi?cations to the ?Fuel Bar? Module. ARTICLE 2. INTENT. The intent of this Exhibit, including all exhibits, is to include all items necessary for Gatorade to complete all activities to fully design, procure, construct, and deliver the ?Fuel Bar? Module to the Delivery Point. {00234764-1}3 ARTICLE 3. RESPONSIBILITIES. 3.1 3.1.1. 3.1.2 3.1.3. 3.1.4. 3.2 Gatorade?s Responsibilities: Gatorade shall complete, or shall cause to be completed, all activities to fully design, procure, construct, and deliver the ?Fuel Bar? Module to the Delivery Point; Gatorade, at its cost, shall provide routine maintenance, repair and replacement, if necessary, of the equipment listed in Exhibit 2 during the term of the Ohio State Sponsorship Agreement. Gatorade shall coordinate with Ohio State to schedule all such activities in advance and at the parties? mutual convenience; and Gatorade, if authorized by Ohio State, may have one or two representatives at the Site to observe and facilitate the installation of the ?Fuel Bar? Module by Ohio State; provided, however, that by providing such representative, Gatorade will not have control over or charge of and will not be responsible for the installation of the ?Fuel Bar? Module. Gatorade shall comply with all applicable laws, regulations and Ohio State Building Design Standards {which can be accessed at: Gatorade shall coordinate with Ohio State?s Associate Athletic Director for Facility Operations and Ohio State?s Office of Facilities Design and Construction to ensure compliance with Ohio State?s standards, schedule and logistical requirements. Ohio State?s Responsibilities: Ohio State shall provide in connection with the performance of Gatorade?s responsibilities under this Exhibit: 3.2.1. 3.2.2. 3.2.3. 3.2.4. 3.2.5. 3.2.6. Access to the Site at reasonable times requested by Gatorade andfor its agents or representatives; Proper unloading of the ?Fuel Bar? Module from the Delivery Point to the point of installation; Proper storage of the ?Fuel Bar? Module in the event that it requires storage prior to installation; Complete installation of the ?Fuel Bar? Module, including all equipment listed on Exhibits 1 and 2; Proper maintenance and service for all equipment listed in Exhibit 1 of this Exhibit; Maintenance of all Product branding on the ?Fuel Bar? Module during the term of the Ohio State Sponsorship Agreement. If Ohio State re-models the Site where {00234764-1}4 the ?Fuel Bar? Module will be installed pursuant to this Exhibit during the term of Ohio State Sponsorship Agreement, then the Ohio State shall work with Gatorade on an alternate location for another ?Fuel Bar? Module at the Site (Ohio State recognizes that the costs to design, procure, construct and deliver the second ?Fuel Bar? Module will be borne by Ohio State); 3.2.7. Timely approval of the Design Documents in writing by Ohio State; 3.2.3. Timely completion of the Delivery Acceptance and Final Acceptance of the ?Fuel Bar? Module; and 3.2.9. Any information reasonably requested by Gatorade relating to the performance of this Exhibit. ARTICLE 4. SHIPMENT AND DELIVERY. 4.1 Gatorade shall prepare, label and pack for shipment all components of the ?Fuel Bar? Module in accordance with good commercial practices to ensure safe Delivery. Gatorade shall ship the ?Fuel Bar? Module .O.B. Destination to the Delivery Point. 4.2 Gatorade shall achieve Delivery by July 29, 2013, subject to any adjustments of the Term approved by Ohio State pursuant to this Exhibit, of the initial Fuel Bar Module installed at the Woody Hayes Athletic Center. . 4.3 Gatorade shall supply Ohio State with a written representation that all the Work has been completed in accordance with the terms and conditions of the Exhibit. ARTICLE 5. ACCEPTANCE 0R REJECTION. 5.1 Design Documents. Ohio State shall notify Gatorade in writing of its acceptance or rejection of the Design Documents following Gatorade?s submittal thereof to Ohio State. 5.2 ?Fuel Bar? Module. 5.2.1. Delivery Acceptance. Within fourteen (14) days of Delivery by Gatorade, Ohio State will conduct a preliminary inspection of the ?Fuel Bar? Module for the purpose of providing the Delivery Acceptance, and within that time shall report to Gatorade any defects, damage, de?ciencies or nonconformin discovered by Ohio State. 5.2.2. If Ohio State rejects all or any portion of the Delivery, such portion shall be removed from the Site by Gatorade. 5.2.3. Upon rejection by Ohio State, Gatorade shall within thirty (30) days cure or remedy the basis for rejection. If Gatorade cures or remedies the basis for rejection, Ohio State shall have an additional fourteen (14) day period to conduct {00234764?1}5 55 5.2.4. 5.2.5. 5.2.6. 5.2.7. an inSpection of the previously rejected portion of the Delivery. If Ohio State agrees to accept same, it shall so notify Gatorade in writing. If Ohio State rejects such tender, it shall so notify Gatorade in writing, giving the speci?c basis for rejection. Upon rejection, Gatorade shall remove the rejected portion of the Delivery from the Site. Final Acceptance. Within fourteen (14) days of completion of the Installation Phase, Ohio State will conduct an additional inspection and testing of the ?Fuel Bar? Module for the purpose of Final Acceptance. If Ohio State rejects all or any portion of the Work, such portion shall be tin-installed and removed from the Site by Gatorade. Upon rejection by Ohio State, Gatorade shall within thirty (30) days cure or remedy the basis for rejection. If Gatorade cures or remedies the basis for rejection, Ohio State shall have an additional fourteen (14) day period to conduct an inspection of the previously rejected portion of the Work. If Ohio State agrees to accept same, it shall so notify Gatorade in writing. If Ohio State rejects such cure or remedy, Ohio State shall notify Gatorade in writing, giving the speci?c basis for rejection. Upon rejection, Gatorade shall un-install and remove the rejected portions of the Work from the Site. Gatorade shall warrant that the Fuel Bar Module is ?t for its intended purpose and is free from defects in workmanship. ARTICLE 6. CHANGES AND CHANGE ORDERS. Ohio State, without invalidating the Exhibit, may order Changes to the ?Fuel Bar? Module in writing, and any cost to Ohio State and any change to the Term will be adjusted accordingly. Changes in the ?Fuel Bar? Module, any cost to Ohio State andr?or any change in the Term shall be authorized only by Change Order. ARTICLE 7. COSTS OF CHANGES. If the Parties cannot agree on the cost arising from any Change Order, such cost shall be limited to the reasonable value of the direct labor and material costs, including subcontractor costs, if any, plus additional insurance, if any, and a fee for overhead and profit of 10% of the direct costs of any Change. ARTICLE 8. DELAY. If, through no fault of Gatorade, Delivery is delayed by force majeure or other causes beyond Gatorade?s control, then the Term shall be extended by Change Order to the extent the critical path of Delivery is affected. {00234764-1}6 5514] ARTICLE 9. OWNERSHIP. Title to all equipment or other items shall transfer to Ohio State upon Final Acceptance except for the equipment listed in Exhibit 2. Gatorade shall retain ownership of all equipment or other items listed in Exhibit 2 and shall provide routine maintenance, repair and replacement of the items listed in Exhibit 2. Upon expiration or termination and non-renewal of the Ohio State Sponsorship Agreement, Gatorade shall have the right to remove the equipment listed in Exhibit 2 from the Ohio State?s Woody Hayes Athletic Center and may remove all Product branding from the ?Fuel Bar? Module, at a mutually agreeable date and time. Should Gatorade decide not to remove any equipment listed in Exhibit 2, then ownership of such equipment shall pass to Ohio State upon written notice by Gatorade to Ohio State, at no additional cost to Ohio State, and Gatorade shall have no further responsibilities with respect to the equipment. In such case, Gatorade shall provide and assign to Ohio State all warranties and maintenance agreements on the equipment listed in Exhibit 2, if any. Title to the remaining component parts of the ?Fuel Bar? Module shall transfer to Ohio State upon Final Acceptance. ARTICLE 10. RISK OF LOSS. The risk of loss with respect to the components of the ?Fuel Bar? Module shall pass to Ohio State upon Delivery Acceptance. ARTICLE 11. DAMAGE TO EQUIPMENT. In the event that any of the equipment listed in Exhibit 2 of the Exhibit is damaged, lost, or stolen while on Ohio State property, through no fault of Gatorade, during the term of the Ohio State Sponsorship Agreement, Ohio State shall repair or replace such equipment, at its cost, to the tvritten satisfaction of Gatorade. ARTICLE 12. EXCLUSIVE USE OF THE MODULE. Gatorade shall have the same rights as provided in the Ohio State Sponsorship Agreement in connection with the use of branding and Product in the ?Fuel Bar? Module. Ohio State agrees that it will not grant to any third party any Gatorade rights contained in the Ohio State Sponsorship Agreement with respect to the use of branding in the ?Fuel Bar? Module during the term of the Ohio State Sponsorship Agreement. To the extent the ?Fuel Bar" Module incorporates any emblems, designs, logos or other Marks of Ohio State, Ohio State grants Gatorade the exclusive license and right to use such Marks on the ?Fuel Bar? Module, but for no other purpose. Gatorade may not use Ohio State?s ?Fuel Bar? Module in any of Gatorade?s advertisements or other marketing or promotional materials without Ohio State?s prior written approval. Approval shall be obtained by Diana Sabau, Ohio State Department of Athletics (sabault?iosundu) and Rob Cleveland. Ohio State?s Of?ce of Trademark and Licensing Services Approval shall be denied if advertisements or materials contain a comparative or qualitative description of Gatorade?s products, price information or other indications of savings or value about Gatorade*s products or any message that otherwise endorses Gatorade?s products or induces one to purchase or use Gatorade?s products. {002347644 }7 ARTICLE 13. REPRESENTATIONS AND WARRANTIES. Each Party hereto represents and warrants regarding itself as follows: each shall perform its respective obligations outlined in this Exhibit (ii) the execution and performance of this Exhibit will not con?ict with or result in a material breach of the terms of any other agreement to which it is a party; all obligations undertaken by it hereunder and all materials provided, produced or supplied by it in connection with this Exhibit if any, will comply with all federal, state and local laws and regulations, and will not violate or infringe upon the rights of any person, estate and/or entity; and (iv) each of its products and/or services, if any, shall comply in all respects with this Exhibit and all applicable federal, state and local laws and regulations. ARTICLE 14. INDEMNIFICATION ASSURANCES. 14.1 Ohio State Assurances: The Ohio State agrees to be responsible for its negligent acts or omissions relating to its obligations under this Exhibit. 14.2 If Ohio State is aware of any potentially dangerous technical or mechanical issue with the equipment listed in Exhibit 2, Ohio State will take any action it determines necessary and will notify Gatorade of such issue. 14.3 Subject to the following conditions and subject to the fullest extent permitted by law, Gatorade and its representatives directly or indirectly employed by them, shall defend, indemnify, and hold harmless Ohio State and its Board of Trustees and its respective agents, employees, consultants, representatives and employees, (?Indemnitees?) from and against any and all claims, damages, demands, actions, causes of action, proceedings, suits, judgments, liabilities, settlement amounts, consequential damages and expenses (including litigation expenses, reasonable attorneys? fees or the fees of other professionals, and punitive damages), whether direct or indirect, or whether to persons or property, arising out of or resulting from performance of this Exhibit and any act or omission of Gatorade, its agents, employees, consultants, and anyone directly or indirectly employed by any of them State and Gatorade agree to notify the other party of any threats of claims, damages, demands, actions, causes of action, proceedings, suits, judgments, liabilities, settlement amounts, consequential damages and expenses (including litigation expenses, reasonable attorneys? fees or the fees of other professionals, and punitive damages), whether direct or indirect, or whether to persons or property (collectively ?Third Party Claims?), arising out of or resulting from Gatorade?s performance of this Exhibit and any act or omission of Gatorade, its agents, employees, consultants, and anyone directly or indirectly employed by any of them. ARTICLE 15. LIABILITY INSURANCE 15.1 OHIO LIABILITY INSURANCE. Ohio State shall, at its own cost and expense, keep and maintain in full force and effect, a policy of commercial general liability insurance, which may be by self insurance, on an occurrence form, including but not limited to premises and operations; broad form property damage; contractual liability; productsi?completed operations; independent contractors; personal injury and advertising injury insuring Ohio State?s activities against claims of bodily injury or death or property damage or loss with limits of at least $5,000,000 per occurrence and $5,000,000 general aggregate. Ohio State shall participate {002347?64-1 }3 5514 1 in the State of Ohio?s workers? compensation program and Employers Liability insurance with minimum limits of $1,000,000 for Bodily Injury each accident, $1,000,000 for Bodily Injury by disease policy limit and $1,000,000 for Bodily Injury by disease each employee. Ohio State shall maintain automobile liability for all owned, non-owned and hired autos with limits no less than $2 million each accident. The insurance required under this Section shall be with companies rated A-VII or better in A.M. Best's Insurance Guide or may be by self insurance. This insurance shall be primary and non-contributing in nature to Gatorade?s insurance. The policies listed above shall contain waiver of subrogation in favor of PepsiCo, Inc. Ohio State shall cause the liability coverages required by the Exhibit to include the additional insureds PepsiCo Inc., and its subsidiaries, af?liates, directors, of?cers, employees, partners and agents for Claims or Third Party Claims caused in whole or in part by Ohio State?s negligent acts or omissions. The insurance policies shall bear an endorsement that the policy shall not be cancelled or the policy limits reduced except upon forty-?ve (45) days? prior written notice to Gatorade for any reason other than nonpayment of premiums and only after ten (10) days? prior written notice for non-payment of premiums. Gatorade may access evidence of such coverage procured by Ohio State in compliance herewith by accessing the following URL website: 20l3 Gatorade has no obligation either to review any Certi?cate or to inform Ohio State if any Certi?cate and underlying policy do not comply with the requirements of this Exhibit. 15.2 LIABILITY INSURANCE. Gatorade shall, at its own cost and expense, keep and maintain in full force and effect, a policy of commercial general liability insurance, on an occurrence form, including but not limited to premises and operations; broad form property damage; contractual liability; products/completed operations; independent contractors; personal injury and advertising injury insuring Gatorade?s activities against claims of bodily injury or death or property damage or loss with limits of at least $5,000,000 per occurrence and $5,000,000 general aggregate. Gatorade shall maintain required Workers Compensation with bene?ts afforded under the laws of the state in which the services are to be performed and Employers Liability insurance with minimum limits of $1,000,000 for Bodily Injury each accident, $1,000,000 for Bodily Injury by disease policy limit and $1,000,000 for Bodily Injury by disease each employee. Gatorade shall maintain automobile liability for all owned, non- owned and hired autos with limits no less than $2 million each accident. The insurance required under this Section shall be with companies rated A-VII or better in AM. Best?s Insurance Guide. The policies listed above shall contain waiver of subrogation in favor of Ohio State. Gatorade shall cause the liability coverages required by the Exhibit to include the additional insureds The Ohio State University and its Board of Trustees for Claims or Third Party Claims caused in whole or in part by Gatorade?s negligent acts or omissions. The insurance policies shall hear an endorsement that the policy shall not be cancelled or the policy limits reduced except upon forty? five (45) days? prior written notice to Ohio State for any reason other than nonpayment of premiums and only alter ten 10) days? prior written notice for non-payment of premiums. Gatorade shall deliver to Ohio State upon execution of the Exhibit and from time to time thereafter as requested by Ohio State Certi?cates of Insurance (?Certi?cate?) showing the additional insureds and the applicable policy limits thereof. Ohio State has no obligation either to review any Certi?cate or to inform Gatorade if any Certi?cate and underlying policy do not comply with the requirements of this Exhibit. {0023.47.54-19 55 14] ARTICLE 16. COVERAGES. The speci?cations or approvals of any insurance referenced in this Exhibit shall not relieve, limit or decrease the liability of the parties under the Exhibit or otherwise. Coverages are the minimum to be provided and are not limitations of liability under the Exhibit, the indemni?cation provisions, or applicable law. Either party may, at its expense, purchase larger coverage amounts or additional insurance. ARTICLE 17. LIMITATION ON LIABILITY. In no event shall either party be liable for indirect, consequential, incidental, special or punitive damages, loss or expenses (including without limitation lost pro?ts) to the other party for any reason whatsoever, whether in contract, tort (including without limitation negligence and strict liability) or otherwise, regardless of whether a party is, was or has been advised of the possibility of such damages. ARTICLE 18. DISPUTE RESOLUTION. All Claims shall be decided exclusively by the following dispute resolution procedure: 18.1 Notice of Claim. Either party shall submit notice to the other party of any Claim (?Notice of Claim?) in writing within fourteen (14) days of the event giving rise to such Claim. 18.2 Claim Submission. Within thirty (30) days of the event giving rise to the Claim, the party submitting the Claim shall provide the other party with a written Claim that includes a clear description of the Claim and data supporting the Claim. 18.3 Notices of Claims and Claims. Any Notice of Claim and any Claim, whether under the Exhibit or otherwise, must be made pursuant to and in strict accordance with the applicable provisions of the Exhibit. Any Notice of Claim and any Claim shall be made in writing. Failure to comply with these requirements shall constitute waiver of the Claim. No act, omission, or knowledge, actual or constructive, of either party shall in any way be deemed to be a waiver of the requirement for timely written notice and a timely written Claim by the other party unless the parties sign an explicit, unequivocal written waiver. 18.4 Mediation. Any dispute arising out of or relating to this Exhibit, or the breach thereof, shall ?rst be subject to non-binding mediation. To initiate the mediation process, a Party shall submit a written mediation request to the other Party. The Parties shall agree on a mutually acceptable mediator within thirty (30) days following the receipt of a written request for mediation. If the Parties are unable to agree to a mediator within thirty (3 0) days following the receipt of a written request for mediation, either Party may submit the request for mediation to the American Arbitration Association. All unresolved Claims shall be considered at a single mediation session in Columbus, Ohio. Any disputed Claims involving obligations of Ohio State shall occur prior to final payment by Gatorade. Gatorade shall pay Ohio State in accordance with this Exhibit if the disputed Claims involve obligations of Gatorade. The costs of any such mediation shall be shared equally by the Parties. . All negotiations and mediations under this Paragraph shall be considered con?dential unless otherwise required to be disclosed under applicable law and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence. {00234764-1}10 ARTICLE 19. LITIGATION. Neither party shall bring litigation regarding any Claim unless and until such Claim has been properly addressed in the above dispute resolution procedure. Any such litigation must be ?led in accordance with applicable statutes of limitation. ARTICLE 20. MAINTENANCE OF RESPONSIBILITIES. The Parties shall diligently carry on their respective obligations and responsibilities and maintain their schedule during any dispute resolution proceeding, unless otherwise noti?ed by a Party in writing. The requirements of this Article 21 cannot be waived except by an explicit written waiver signed by Gatorade and Ohio State. ARTICLE 21. FORCE MAJEURE. Neither Party shall be held liable for any failure to comply with any of the terms of this Exhibit caused solely by ?re, acts of God, strike, war, insurrection, terrorism, government restriction, or other causes beyond its control and without its fault, provided the Party failing to comply shall use all reasonable endeavors to cure such failure to comply with the terms of this Exhibit as quickly as possible. ARTICLE 22. OWNERSHIP OF WORK PRODUCT. The Design Documents and any drawings, specifications and other documents and electronic data furnished by Gatorade to Ohio State under this Exhibit are deemed to be instruments of service, and Gatorade shall have all ownership and property interests therein, including copyright. ARTICLE 23. PUBLICITY. Ohio State shall not use Gatorade?s or PepsiCo Inc?s name on any website, sales brochure, advertisement, publicity notice or other publication without the prior express mitten approval of Gatorade, unless otherwise required by law. Should such use be required under law, Ohio State shall notify Gatorade. Neither Gatorade nor PepsiCo Inc. shall use the Ohio State?s name, logos or trademarks on any website, sales brochure, advertisement, publicity notice or other publication without the prior express written approval of the Ohio State, unless otherwise required by law. Should such use he required under law, Gatorade or PepsiCo Inc. shall notify the Ohio State. ARTICLE 24. COUNTERPARTS. This Exhibit may be executed in one or more counterparts, including by email, each of which shall be deemed an original and all of which together constitute one and the same instrument. ARTICLE 25. AUTHORITY. The Parties represent and warrant that they have the full and complete authority to enter into and perform this Exhibit. The individuals executing this Exhibit on behalf of the Parties each represent and warrant that he or she has the full and complete authority to do so and that the Parties will be bound thereby. The Parties hereto have caused this Exhibit to be duly executed by their duly authorized representatives as of the date ?rst below written. {002347644 1 1 By their execution below, the Parties hereto have agreed to all the terms and conditions of Ibis Exhibit. THE GATORADE COMPANY THE OHIO STATE UNIVERSITY By: ?j?k V.- I Name: Name Geoffrey S. Chatas, Sr. Vice President For Business Finance, and CFO The Ohio State University .1 Title: ?Sr. Uu c. Title: Date: Li Date: {00234764-1}12 9 EXHIBIT 1 FUEL 3 3' F'w {00234764-1}13 55 14 55141-009 {00234764-1}15 .114I__l h-b? I__l SEE SHEET I: SEE SHEET A3 '15: l' I 1 -11" i JEITT I I if" I I I'-TH. Ln- {00234764-1 16 53 Ill-Ifl'l- L-I 5514 - l-Tl' I-I TIE-I- 55 EXHIBIT 2 Gatorade shall own and shall provide routine maintenance, repair and replacement, if necessary, of the equipment listed below: Two (2) Refrigerators; models TRUE Manufacturing T-35G TRUE Manufacturing T-35G One (1) Under Counter Freezer Drawers; model Sub Zero One 1) Ice Maker; model Spika NG-175 AIF One (1) Undercounter Dishwasher; model Hobart Advansys Hot {002347644 }19