EXHIBIT 10.57
[*] DENOTES EXPURGATED INFORMATION
BREWING SERVICES AGREEMENT
BETWEEN
CBC LATROBE ACQUISITION, LLC
AND
BOSTON BEER CORPORATION
AGREEMENT entered into effective as of the 28th day of March, 2007 (the
"Effective Date"), by and between CBC Latrobe Acquisition, LLC, a Pennsylvania
limited liability company ("CBC"), and BOSTON BEER CORPORATION, a Massachusetts
corporation ("Boston Beer"). Boston Beer and CBC are sometimes referred to
herein individually as a "Party" and collectively as the "Parties."
City Brewing Company, LLC, the sole member of CBC "(City Brewing"), and
Boston Beer are currently parties to an Amended and Restated Brewing Services
Agreement effective as of August 1, 2006 relating to brewing services at City
Brewing's brewery located in LaCrosse, Wisconsin (the "LaCrosse Brewery");
CBC has acquired a brewery located in Latrobe, Pennsylvania (the "Latrobe
Brewery"); and
CBC and Boston Beer now desire to enter into an agreement pursuant to which
Boston Beer's proprietary malt beverages shall be brewed and packaged at the
Latrobe Brewery, which agreement shall be guarantied by City Brewing.
ACCORDINGLY, in consideration of the mutual agreements contained in this
Agreement, the Parties, intending to be legally bound, hereby agree, as follows:
1. SCOPE OF AGREEMENT.
(a) During the Term of this Agreement, as defined in Section 5 below, and
in accordance with the terms and conditions set forth herein, CBC shall give
Boston Beer access to the Latrobe Brewery and shall make available to Boston
Beer CBC's production personnel to allow Boston Beer to produce Boston Beer's
proprietary Products at the Latrobe Brewery.
(b) For purposes of this Agreement, Boston Beer's "Products" shall include
those products set forth in Exhibit A attached hereto. Boston Beer shall
periodically provide to CBC an updated schedule of all Boston Beer products
which Boston Beer deems to be Products, subject to this Agreement.
2. CONTROL OF PRODUCTION OF PRODUCTS; PUBLIC STATEMENTS.
(a) It is the intention of the Parties that CBC will alternate
proprietorship of the Brewery with Boston Beer so that Boston Beer will function
as the xxxxxx when the Products are brewed and packaged at the Latrobe Brewery
("Alternating Proprietorship"). All Products shall be brewed and packaged
according to Boston Beer's specifications, including the maintenance of
standards and quality control programs. Boston Beer shall have ultimate
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-1-
responsibility and authority over every detail of the production process for
Products at the Latrobe Brewery, with such responsibility and authority as to
those parameters affecting beer taste and quality to be the same as if Boston
Beer were the owner of the Latrobe Brewery. Boston Beer shall monitor and review
the practices and procedures of CBC in the production and packaging of Products
and periodically inspect the Latrobe Brewery. The Products shall be separated
and identifiable from the beer products produced by CBC for itself or other
brewers at all stages, including prior to fermentation, during fermentation,
during cellar storage and as finished beer after production and before removal
from the Latrobe Brewery. If a decision made by Boston Beer in the exercise of
its authority under this Section 2(a) results in additional costs over and above
the costs of the then current operations, CBC shall be entitled to be reimbursed
by Boston Beer for such costs. In addition, in the exercise of its authority
under this Section 2(a), Boston Beer shall not interfere with CBC's production
processes for its own proprietary brands or for other brands that it produces
under contract with third parties.
(b) Consistent with the provisions of Section 2(a) above, CBC and Boston
Beer will, in any and all public statements or comments, recognize that Boston
Beer controls the ingredients, recipe, brewing processes and procedures and
quality and taste parameters for all Products produced at the Latrobe Brewery
and that Boston Beer is the xxxxxx of all such Products. Neither party will make
any public statements inconsistent with the foregoing.
(c) Each Party agrees to take all commercially reasonable steps to prevent
any of its personnel from making disparaging or otherwise adverse remarks about
the products of the other Party.
3. COMMITTED CAPACITY; MINIMUM PRODUCTION COMMITMENT; SHORT-FALL FEE.
(a) During the Term, subject to the provisions of this Section 3, CBC shall
make available to Boston Beer for brewing and packaging the following volumes
for beer (lagers and ales) and for blending and packaging flavored malt beverage
("FMB") at the Latrobe Brewery (the "Committed Capacity"):
Product Annual Minimum Monthly Minimum Annual Maximum Monthly Maximum
------- -------------- --------------- -------------- ---------------
[*] [*] [*] [*] [*]
[*] [*] [*] [*] [*]
Notwithstanding the foregoing, the maximum Committed Capacity shall be [*] times
the actual production at the Latrobe Brewery of the respective Product in the
prior calendar year, except that in calendar year 2008 the maximum Committed
Capacity shall be [*] times the actual production in 2007, but in no case shall
the maximum Committed Capacity be less than the minimum Committed Capacity
above. Boston Beer will endeavor, to the extent reasonably possible, to provide
CBC with fifty (50) days advance written notice of any expected increase or
decrease in its expected production requirements for both beer and FMB which
varies more than [*] from any previously submitted monthly forecasts for the
period in question, in order to allow CBC to plan its capacity utilization at
any Latrobe Brewery. The foregoing minimum and maximum Committed Capacity
volumes may be modified only by written consent of both Parties. Products shall
primarily be produced in packaged units in accordance with the provisions of
Section 7 below.
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-2-
(b) During calendar years 2007 and 2008, provided that Boston Beer has been
able to successfully brew and package its proprietary beer, Xxxxxx Xxxxx Boston
Lager(R), and an ale at the Latrobe Brewery meeting Boston Beer's quality
specifications on a consistent basis ("Boston Beer Brewing Standards"), Boston
Beer shall produce at the Latrobe Brewery the following volumes of beer and/or
FMB combined (the "Minimum Production Commitment"):
(i) During the months of May through December in calendar year 2007,
at least an average of [*] per month in each calendar quarter and
[*] for the calendar year; and
(ii) During calendar year 2008, at least an average of [*] per month
in each calendar quarter and [*] for the calendar year.
For any month that Boston Beer is not able to produce its Products that meet the
Boston Beer Brewing Standards at the Latrobe Brewery, the production volumes set
forth in (i) and (ii) above shall be adjusted on a pro-rata basis. The
proportional share of beer and/or FMB in the Minimum Production Commitment shall
be in Boston Beer's sole discretion, subject to the provisions of Section 7
below. Effective January 1, 2009, Boston Beer shall have no further minimum
production commitments during the Term of this Agreement.
(c) During calendar years 2007 and 2008, for any calendar quarter in which
the Minimum Production Commitment applies, Boston Beer shall pay to City Brewery
a short-fall fee (the "Short-Fall Fee") of [*] per barrel for each barrel less
than the Minimum Production Commitment. Such Short-Fall Fee will be paid by
Boston Beer within sixty (60) days after the end of the applicable calendar
quarter in which Boston Beer produced less than the Minimum Production
Commitment. By paying the Short-Fall Fee, Boston Beer shall be deemed to have
met the Minimum Production Commitment.
(d) Effective January 1, 2009 and thereafter throughout the remainder of
the Term, if, in any calendar year, Boston Beer produces less than the Annual
Minimum for each Product set forth in paragraph (a) above, [*]. If the Maximum
Committed Capacity has been adjusted in accordance with this provision and
Boston Beer wishes to increase the Maximum Committed Capacity, it may do so by
paying CBC an amount equal to [*] for each additional barrel of Committed
Capacity for the relevant year.
(e) CBC may, at its sole option, fulfill some or all of its Committed
Capacity obligations hereunder at the LaCrosse Brewery as long as the Parties
have maintained an Alternating Proprietorship at the LaCrosse Brewery and
provided that (i) there is no adverse impact on the production schedule and (ii)
Boston Beer shall be reimbursed for any and all additional costs that are
incurred by Boston Beer, including incremental freight and materials charges, as
a result of such change in brewery. Any production that at the LaCrosse Brewery
pursuant to this Section 3(e) shall be treated as if produced at the Latrobe
Brewery under this Agreement.
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-3-
(f) In the event Boston Beer owns the land and buildings comprising the
Latrobe Brewery, Boston Beer shall, during the Term, pay to CBC the sum of [*] a
month in consideration of CBC providing the Committed Capacity to Boston Beer.
4. FEE AND MANNER OF PAYMENT.
(a) Boston Beer shall pay CBC a brewing fee (the "Fee") for allowing Boston
Beer access to the Brewery and use of CBC's employees for the production of the
Products at the Latrobe Brewery as set forth in the Fee Schedule attached hereto
as Exhibit B. The Fee for other packaging units not listed in Exhibit B shall be
set by the Parties based on proportionate volume and packaging efficiencies
relative to the units described in said Exhibit. CBC shall be entitled to
increase each Fee, effective as of January 1 in each year while the Agreement
remains in effect (the "inflation adjustment"), with the first such increase
pursuant to this Agreement to be effective as of January 1, 2008, at a rate
equal to [*] of the increase in the Producer Price Index -Total Manufacturing
Industries (OMFG) as published by the United States Department of Commerce -
Bureau of Labor Statistics in the preceding [*].
(b) The Fee includes compensation for CBC's employees, overhead, profit,
and other costs, including cleaning, brewing and filtration processing aids
(except for silica gel and filter powder), packaging glues, shrink wrap,
packaging process supplies and the like, as well as the lab tests listed in
Exhibit D, incurred by CBC in the production of packaged Products suitable for
shipment by truck.
(c) The Fee excludes any federal and state excise taxes (but specifically
excluding any taxes in the nature of a tax on income or profits), which shall be
paid by Boston Beer.
(d) CBC shall invoice daily for any Brewing Materials supplied by CBC to be
used that day in wort production prior to initiation of the brewing process.
Boston Beer shall pay such invoice within [*]. Upon completion of packaging the
Products in cases or kegs, CBC shall send Boston Beer a final invoice
representing the Fee and any processing aids, including [*], and non-Boston Beer
owned packaging supplied by CBC. Boston Beer shall pay the final invoice within
[*].
(e) For Products shipped to Boston Beer customers and warehouses, CBC shall
provide electronic reports to Boston Beer in a text file format stating shipment
information as shown in Exhibit E on a daily basis for shipments from the
previous day.
(f) CBC shall have the right to increase the Fee to reflect CBC's actual
incremental cost for any special services which use a more expensive brewing
process or longer time frames or which have more expensive packaging processes
than used to produce Xxxxxx Xxxxx Boston Lager(R). Fees and payment terms for
special services shall be mutually agreed to in writing and in accordance with
the foregoing provisions of this Section 4, including the timely invoicing
requirements of paragraph (e) above.
(g) Boston Beer shall be entitled to a proportional reduction in the Fee to
the extent that CBC is able to achieve variable cost savings through changes in
production procedures initiated by Boston Beer or arising out of any investment
made by Boston Beer in CBC facilities, whether made prior or subsequent to the
date of this Agreement.
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-4-
(h) Volume Rebate: If in any calendar year the volume of Products produced
exceeds the levels set forth below, the Fee will be reduced as follows for each
package, provided beer accounts for at least [*] of the total volume produced:
[*];
5. TERM.
(a) The initial term of this Agreement shall commence as of the Effective
Date and shall expire on [*] unless extended as provided below or until
terminated pursuant to Section 6 hereof.
(b) Boston Beer may, at its sole option, extend the term of this Agreement
up to [*] times, each time for an additional term of [*] years, upon written
notice given to CBC at least [*] prior to the expiration of the then current
term (the "Notice of Term Extension"), provided that, if Boston Beer will have
produced less than [*] of Products at the Latrobe Brewery during the prior [*]
term, Boston Beer shall pay the sum of [*] at the time it delivers the Notice of
Term Extension to CBC. The initial term, as extended hereunder, shall be deemed
to be the "Term" of this Agreement.
(c) The Parties acknowledge that either Party's obligations pursuant to
this Agreement to make payments to the other Party and the Parties' respective
obligations under Sections 4, 13, 27 and 31, and CBC's obligations under
Sections 14, 15 and 25 shall survive the termination of this Agreement.
6. TERMINATION.
(a) Boston Beer may also terminate this Agreement effectively immediately
upon written notice in the event that CBC is in default of any of its
obligations to allow Boston Beer to brew, package and ship any Beer Products,
which default continues for a period of [*] following receipt by CBC of written
notice from Boston Beer regarding such default, or for such longer period during
which CBC is making reasonable and good faith efforts to cure such default as
determined by Boston Beer in its reasonable discretion (each such event is
hereinafter referred to as a "CBC Production Default"). CBC shall not be deemed
to be in default of its obligations for purposes of this Section 6(a), if it is
in good faith both seeking to correct the circumstances giving rise to its
failure to allow Boston Beer to brew, package and ship Products and honoring its
obligations under Section 14 hereof, to the extent applicable.
(b) Boston Beer may also terminate this Agreement effective immediately if
(i) all or substantially all of CBC's business or assets have been acquired by a
third party or (ii) a transaction or series of transactions results in the
majority of voting control of CBC being acquired by a person or persons not
currently holding an equity interest in City Brewery.
(c) CBC may terminate this Agreement on [*] prior written notice to Boston
Beer in the event that Boston Beer is in arrears in payment of undisputed
amounts (i) for the production of Products in excess of [*] or (ii) for other
charges in excess of [*], and such arrearage has remained outstanding for in
excess of [*] after written demand for payment was made by CBC.
(d) In the event of bankruptcy by either Party, the non-bankruptcy Party
shall have the right to terminate this Agreement.
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-5-
(e) Upon termination of this Agreement, Boston Beer shall promptly pay to
CBC all unpaid invoices in full and all unpaid costs incurred by CBC pursuant to
this Agreement. CBC will use all reasonable efforts to minimize such costs upon
termination, and Boston Beer will have the right to review documentation
evidencing such costs.
7. PACKAGING AND MINIMUM PRODUCTION REQUESTS.
(a) Packaging of the Products shall consist of (i) twenty-four 12-ounce
bottles, whether packaged as a 24 bottle loose case, a four 6-pack case or a two
12-pack case in a tray (each a "12-oz. Case Unit"), (ii) 5.2 U.S. gallons (a
"One-Sixth Barrel"), (iii) 7.75 U.S. gallons (a "Quarter Barrel"), and (iv)
15.50 U.S. gallons (a "Half Barrel"), and any other package types or
configurations that the Parties mutually agree to use for packaging such
Products. All kegs used will be Xxxxxx-style kegs. Boston Beer has the right,
subject to the approval of CBC, which approval will not be unreasonably
withheld, to make changes in the packaging used to produce the Products,
including but not limited to, the packaging of the Products in can units. The
price for packaging in cans will be adjusted by the difference in CBC's costs
between packaging in bottles and cans.
(b) Boston Beer shall have the right to package Products at least [*].
Boston Beer shall submit production requests and a six month rolling forecast by
the 10th of the preceding month not less than one production run (at present
equivalent to one brew in the brew house, 200 Kegs on the racking line and
12,000 12-oz. Case Units in the bottling line). Boston Beer acknowledges and
agrees that the minimum production request applies to each Product style,
individually, rather than in combination; provided, however, that production
requests for the bottling line may consist of one shift (currently averaging
12,000 Case Units) of the Beer Products in combination and any bottling line
order shall not be less than 3,000 Case Units of each beer style.
8. PACKAGING MATERIALS AND BREWING MATERIALS.
(a) Crowns, bottles, labels, six-packs, cases, partitions and other packing
materials for Beer products (collectively, "Packaging Materials"), or any
applicable federal or state taxes are not included in the Fee and shall be borne
directly by Boston Beer. All Packaging Materials supplied by Boston Beer to be
used in the production of Products shall be (i) purchased directly by Boston
Beer at its cost for delivery to CBC, (ii) the property solely and exclusively
of Boston Beer, and (iii) segregated and identified as such at the Brewery. CBC
acknowledges that Boston Beer shall be afforded unrestricted 24-hour access to
the facility.
(b) Upon receipt of Packaging Materials, CBC shall inspect the goods for
damage and accuracy of quantities delivered. CBC shall notify Boston Beer of any
such issues immediately in writing via facsimile.
(c) Bills of lading for Packaging Materials received at CBC shall be signed
and dated by a CBC employee and sent to Boston Beer via facsimile on a daily
basis at the end of each day.
(d) CBC shall then provide all raw materials, ingredients and other recipe
materials used in the brewing of the Products ("Brewing Materials") not provided
by Boston Beer and invoice Boston Beer prior to the initiation of the brew.
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-6-
(e) CBC shall provide to Boston Beer perpetual inventory of all Beer
Products in progress, finished goods and Packaging Materials on a weekly basis
and at month-end as of Boston Beer's fiscal month-end and shall perform such
inspections, counts, and other checks similar to those performed on their own
materials.
(f) On at least a monthly basis, CBC shall perform cycle counts of all
inventories of Boston Beer Products in progress, finished goods and Packaging
Materials. In addition, on at least a semi-annual basis, on dates to be
determined by Boston Beer, CBC shall perform a physical inventory of all Boston
Beer inventory. Boston Beer shall reimburse CBC for reasonable out-of-pocket
costs associated with both the cycle counts and physical counts and have the
right to inspect and test to ensure these counts are performed in accordance
with Boston Beer inventory policies and practices.
(g) Within the first sixty (60) days of the Term of this Agreement, CBC and
Boston Beer will work together to develop a mutually agreeable Inventory
Reporting Plan that will ensure that CBC provides reports to Boston Beer on a
daily basis regarding all inventory orders, receipts and movements of Boston
Beer property held by CBC pursuant to this Agreement, including all Packaging
Materials, Brewing Materials, work-in-process and other personal property owned
by Boston Beer, in a format acceptable to Boston Beer. The Inventory Reporting
Plan may require access by CBC personnel to Boston Beer operational and
financial systems installed at CBC. If that is the case, Boston Beer shall pay
for installation and all software licenses required in order to implement the
Inventory Reporting Plan and CBC personnel shall use these systems in strict
accordance with the instructions provided in the Inventory Reporting Plan.
9. RISK OF LOSS.
Boston Beer shall bear the risk of loss for the Packaging Materials,
Brewing Materials, Products in process and finished goods, except where losses
arise as a result of negligence or willful misconduct of CBC.
10. BREWERY OF RECORD.
(a) To the extent requested by Boston Beer, CBC shall use all commercially
reasonable efforts to establish and maintain an Alternating Proprietorship at
the Latrobe Brewery, and, subject to and in compliance with all applicable
federal, state or local laws, rules and regulations, to identify Boston Beer as
the sole producer of the Products. Boston Beer agrees to reimburse CBC promptly
for its reasonable out-of-pocket costs, including, without limitation, legal
expenses and increased clerical costs, incurred in connection therewith.
(b) CBC shall provide to Boston Beer, no less than five (5) calendar days
prior to the date on which Boston Beer is required to submit its excise tax
return and pay taxes as may be due to the Trade and Tax Bureau of the U.S.
Department of the Treasury (the "TTB") on the Products that have been shipped
from the Latrobe Brewery, all information necessary for Boston Beer to make such
submission and to pay such taxes. CBC shall also provide to Boston Beer on a
timely basis such information as may be required in order for Boston Beer to
complete and submit the Monthly Xxxxxx'x Report of Operations on Form 5130.9 to
the TTB when due and such other reports and filings as may be necessary and or
appropriate for Boston
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-7-
Beer to comply with applicable laws as the alternating proprietor of the Latrobe
Brewery with respect to the Products.
11. STORAGE.
The Fee shall include storage of reasonable quantities of packaged Products
up to a maximum of [*] cases and [*] kegs. CBC shall be entitled to charge
Boston Beer a reasonable fee for the handling and storage of the Products in
excess of such amounts.
12. FORCE MAJEURE.
If CBC is unable, by reason of a labor dispute, governmental action, act of
God or the like, to perform its obligations under this Agreement at the Latrobe
Brewery, it shall, in any event, use its best efforts to make the production
capacity available to Boston Beer at the LaCrosse Brewery in accordance with the
provisions of Section 3(d) above in order to meet its Committed Capacity;
otherwise, to the extent it is still able to maintain production at the Latrobe
Brewery, City Brewery shall continue to perform such services for Boston Beer at
the Latrobe Brewery in proportion to the capacity at such Brewery dedicated to
the production of the Products prior to the occurrence of the event in question.
13. CHANGE PARTS AND BREWERY MODIFICATIONS.
(a) Provided that Boston Beer has given its written approval in advance of
the purchase, Boston Beer will reimburse CBC for the initial capital investment
in machinery and equipment required to be made by CBC in the Latrobe Brewery to
make such facility capable of brewing and packaging the beer Products that meet
the Boston Beer Brewing Standards in accordance with the provisions of this
Agreement up to an aggregate of [*]. In addition, at Boston Beer's sole
discretion, Boston Beer may, at any time during the term of this Agreement,
reimburse CBC in the amount of [*] for a portion of CBC's capital investment in
machinery and equipment that is required to produce Boston Beer's [*] Products
that meet Boston Beer Brewing Standards in accordance with the provisions of
this Agreement. If Boston Beer makes this additional investment of [*], there
will be a corresponding reduction of the Fee as set forth in Exhibit B. (All
such machinery and equipment so paid for by Boston Beer shall be referred to as
the "Equipment.")
(b) Provided there is no existing CBC Production Default, CBC may purchase
the Equipment from Boston Beer at any time during the initial Term by paying
Boston Beer the unamortized value thereof, which shall be determined by the
depreciation rate multiplied by the number of months remaining in the initial
Term. The depreciation rate is equal to the original purchase price of the
equipment divided by number of months in the initial Term. After the initial
Term, CBC may purchase the Equipment at a purchase price of [*]. If Boston Beer
makes the additional investment in Equipment related to the production of the
FBM Products as provided in subparagraph (a) above, and CBC is not in default
under this Agreement, CBC may purchase such additional Equipment from Boston
Beer upon the expiration of the then current Term of the Agreement by paying
Boston Beer the unamortized value of such Equipment, which shall be [*].
Provided there is no existing CBC Production Default, CBC may purchase the
additional Equipment from Boston Beer at any time during the initial Term by
paying to Boston Beer the unamortized value thereof, which shall be determined
by the depreciation rate multiplied by the number of months remaining in the
initial Term. The depreciation rate is equal to the original purchase price of
such additional equipment divided by the number of months remaining in the
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-8-
initial Term at the time of the original purchase of the additional equipment.
During the Term, CBC shall have full responsibility for keeping the Equipment in
good repair and working order. Provided there is no existing CBC Production
Default, Boston Beer shall not remove the Equipment from the Latrobe Brewery.
(c) Until and unless purchased by CBC as set forth above, title to the
Equipment shall at all times remain vested solely in Boston Beer. If for any
reason, title to all or any portion of the Equipment is now or hereafter deemed
to have passed from Boston Beer to CBC, CBC hereby grants to Boston Beer a
continuing purchase money security interest in and to all such Equipment,
together with any and all products and proceeds arising therefrom or any
replacements thereto, all in order to secure all of the indebtedness,
obligations and liabilities of CBC to Boston Beer, whether now existing or
hereafter arising (including without limitation, all of the indebtedness,
obligations and liabilities of CBC to Boston Beer arising under this Agreement).
Upon purchase of the equipment by CBC, Boston Beer shall release the purchase
money security interest thereon.
14. AGENCY.
CBC and Boston Beer understand and agree that neither Party is, by virtue
of this Agreement or anything contained herein, including CBC affixing to any
Product and/or registering the name of "The Boston Beer Company," "Boston Beer
Company," or "Twisted Tea Brewing Company" constituted or appointed the agent of
the other Party for any purpose whatsoever, nor shall anything herein contained
be deemed or construed as granting Boston Beer or CBC any right or authority to
assume or to create any obligation or responsibility, express or implied, for or
on behalf of or in the name of the other, or to bind the other in any manner or
way whatsoever.
15. PRODUCT LIABILITY; INDEMNIFICATION.
(a) CBC and Boston Beer shall each maintain product liability insurance of
not less than [*] and in the amount of [*] combined single limit in the
aggregate relating to the Products produced at the Latrobe Brewery.
(b) CBC shall indemnify and hold harmless Boston Beer and all of its
affiliates from and against any and all loss, liability, cost or expense of any
nature whatsoever, including reasonable attorneys' fees (collectively, "Product
Liability Damages"), arising out of or associated with all claims made against
Boston Beer by any party or parties for personal injury or property damage
caused by impurities, defects, or adulteration of any kind in the Products
manufactured and/or packaged at the Brewery, regardless of when manufactured or
packaged; except to the extent that (i) Product Liability Damages when caused
solely by (i) Boston Beer's improper storage, handling, or alteration of the
Products in question; (ii) Packaging Materials or Brewing Materials purchased,
specified or otherwise approved by Boston Beer subsequent to written notice from
CBC reasonably advising that such Packaging Materials or Brewing Materials
should not be used in the Products for health and safety reasons: or (iii)
Product Liability Damages resulting from inherent properties and/or
characteristics of the Products, including, by way of example and not of
limitation, health and intoxicating effects of the Products.
(c) Boston Beer shall indemnify and hold harmless CBC and all of its
affiliates from and against any and all Product Liability Damages to the extent
arising out of the causes except
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-9-
from CBC's indemnification obligations under Section 15(b) above. Boston Beer
shall indemnify and hold harmless CBC from and against any and all claims,
expenses, causes of action or liabilities of any nature whatsoever
(collectively, "Damages"), to the extent that Damages arise solely from the
independent conduct of Boston Beer; provided that Damages shall not include any
loss, liability, cost or expense incurred by CBC as a consequence of the
exercise by Boston Beer of any of its rights under this Agreement.
(d) Notwithstanding the provisions of Sections 15(b) and (c) above, in no
event shall either Party be liable to indemnify the other Party for
consequential damages suffered by the other Party in an amount greater than [*]
paid by Boston Beer for all Products produced hereunder during the [*] preceding
the month in which occurred the event giving rise to the claim for
indemnification, unless such consequential damages are caused by the negligence
or willful misconduct of the other Party
16. TRADEMARKS.
(a) CBC acknowledges that no trademark or trade name rights in any of the
trademarks, trade names, service marks, domain names or logos owned by Boston
Beer, including specifically but without limitation those identified on the
Trademark Schedule attached hereto as Exhibit C (collectively, the "Trademarks")
are granted by this Agreement.
(b) Boston Beer hereby represents, warrants and covenants that it has and
will maintain the right to use the Trademarks and will indemnify and hold
harmless CBC from any claim of alleged infringement brought by any party against
CBC, including, but not limited to, CBC's reasonable costs of legal expenses.
17. SUCCESSORS AND ASSIGNS: FUTURE POTENTIAL ACQUISITIONS.
(a) The Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors and assigns, but shall not be assigned
by either Party without the prior written consent of the other Party, which
consent will not be unreasonably withheld. No failure of a Party to consent to a
proposed assignment of this Agreement by the other Party shall be deemed
unreasonable if such Party believes in good faith that the proposed assignee is
not capable of performing the financial or production obligations of the Party
proposing to assign this Agreement. Transfer of ownership of a Party to a
parent, subsidiary or affiliate of the Party shall not be deemed an assignment
under this Section 17.
(b) Assignment of this Agreement shall not relieve the assigning Party of
its financial obligations hereunder, including its indemnification obligations,
if an assignee defaults in the performance of its assigned obligations.
(c) In the event that Boston Beer shall acquire substantially all of the
business and assets of another company which produces and/or distributes beer,
or, shall acquire all right, title and interest in and to the brands and
trademarks of another company (hereinafter the "Acquired"), then, in such event,
if the Acquired has products already being produced by CBC, then CBC agrees to
make available to Boston Beer, for the same period of time that CBC has
pre-existing commitments for the Acquired, such additional capacity which is
equivalent to that with the Acquired; provided, however, that the terms and
conditions governing production, including pricing, shall be governed by the
terms of this Agreement.
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-10-
(d) If CBC acquires substantially all of the business and assets of another
company which produces beer or acquires an additional brewery facility
(hereinafter a "CBC Acquired Brewery"), then, in such event, if the CBC Acquired
Brewery has a pre-existing agreement with Boston Beer for the production of
Products, CBC agrees to continue to make available to Boston Beer, for the same
period of time which existed under the pre-existing agreement between Boston
Beer and the CBC Acquired Brewery, the same capacity as had been committed to
Boston Beer by the CBC Acquired Brewery; provided, however, that the terms and
conditions governing production, including pricing, shall be governed by the
terms of this Agreement.
18. GOVERNING LAW.
This Agreement shall be interpreted and construed in accordance with the
laws of the Commonwealth of Massachusetts.
19. ARBITRATION.
Any disagreement, dispute, controversy or claim with respect to the
validity of this Agreement or arising out of or in relation to the Agreement, or
breach hereof, shall be finally settled by arbitration in a mutually agreeable
location other than New York, New York, Boston, Massachusetts or Chicago,
Illinois, in accordance with the articles of the American Arbitration
Association for Commercial Arbitration. The arbitrators shall have the right to
assess costs, including legal expenses, in favor of the prevailing Party,
including, if applicable, travel costs. Notwithstanding the foregoing, the
Parties may have recourse to the courts of the United States of America for the
purpose of obtaining preliminary injunctive relief.
20. EXECUTION IN COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together shall constitute one
and the same document.
21. AMENDMENTS.
No amendment, change, or modification of any of the terms, provisions or
conditions of this Agreement shall be effective unless made in writing and
signed or initialed on behalf of the parties hereto by their duly authorized
representatives.
22. NO THIRD PARTY BENEFICIARIES.
CBC and Boston Beer agree that this Agreement is solely for their benefit
and does not nor is it intended to create any rights in favor of, or obligations
owing to, any person not a party to this Agreement or Guaranty.
23. MERGER; SEPARABILITY.
This Agreement terminates and supersedes all prior formal or informal
understandings among the Parties with respect to the subject matter contained
herein. Should any provision or provisions of this Agreement be deemed
ineffective or void for any reason whatsoever, such provision or provisions
shall be deemed separable and shall not affect the validity of any other
provision.
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-11-
24. NON-EXCLUSIVE NATURE OF AGREEMENT.
(a) Nothing contained in this Agreement shall require Boston Beer to avail
itself of the Committed Capacity or preclude Boston Beer from engaging any other
xxxxxx for the purpose of producing and distributing Products.
(b) Boston Beer acknowledges that CBC's business includes brewing specialty
malt beverage products, including products that may compete directly with, use
the same brewing ingredients as, and/or are of the same style as one or more of
the Products. Boston Beer agrees that nothing contained in this Section 24 shall
in any manner prevent, limit, restrict or otherwise affect CBC's right to
continue and expand such aspect of its business, including by introducing new
products that compete directly with existing Products, so long as CBC does not
intentionally (i) copy the identical brewing formulae and ingredients of any
Product, (ii) use any proprietary yeast specifically supplied to CBC by Boston
Beer solely for use in producing Products; or (iii) use labeling or other
packaging which infringes any of Boston Beer's Trademarks or copies Boston
Beer's marketing position and strategy.
25. YEAST STRAINS.
It is understood and agreed that the Latrobe Brewery shall be able to
accommodate no less than two (2) Boston Beer proprietary yeasts at all times.
CBC will keep all yeast strains provided by Boston Beer free of any
contamination and will not use such yeast strains for the brewing of any beers
other than the Products. The obligations of CBC under this Section 25 shall
survive any termination of this Agreement. CBC shall, upon the request of Boston
Beer, return any proprietary yeast strains it may have in its possession or
under its control.
26. LABORATORY ANALYSIS; QUALITY ASSURANCE
CBC will perform the laboratory analysis and monitor production and
packaging of the Beer Products in accordance with standards set forth on Exhibit
D attached hereto. Under such procedures, CBC will examine samples of each
Product prior to and after packaging.
27. CONFIDENTIALITY.
The Parties agree that, except as they shall otherwise mutually determine
from time to time, the terms of this Agreement and any notices given hereunder
or other communications with respect to the substance of the relationship
between them shall be maintained in confidence; provided that each Party shall
be permitted to make such disclosures of confidential information to such courts
and other public or governmental agencies as their counsel shall deem necessary
to maintain compliance with and to prevent violation of applicable federal or
state laws.
28. NOTICES.
All notices required herein shall be given by certified mail, return
receipt requested, or by overnight courier service, to the following addresses
(unless change thereof - has previously been given to the party giving notice)
and shall be deemed effective when received:
If to Boston Beer:
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-12-
Xxxxxx X. Xxxxx, Vice President of Operations
Boston Beer Corporation
Xxx Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
with a copy to:
Legal Department
Boston Beer Corporation
Xxx Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
If to CBC:
Xxxxx Xxxx, Vice President of Business Development
CBC Latrobe Acquisition, LLC
000 Xxxxx Xxxxx Xxxxxx
Xx Xxxxxx, XX 00000
If to City Brewing:
Xxxxx Xxxx, Vice President of Business Development
City Brewing, LLC
000 Xxxxx Xxxxx Xxxxxx
Xx Xxxxxx, XX 00000
With a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxx Xxxxx Ltd.
000 Xxxx Xxxxxx, Xxxxx 000
Xx Xxxxxx, XX 00000
29. RIGHTS OF OFFSET.
CBC and Boston Beer agree that, to the extent that either of them is at any
time owed money by the other Party, including on regular invoices sent as
provided herein, such Party may set off such amount against any undisputed
monies owed by it to such Party from time to time, any such set-off to be
accomplished by written notice to the owing Party, effective upon being sent.
30. DELIVERIES TO JOINT WHOLESALERS.
To the extent permitted by applicable law and at the request of Boston
Beer, CBC will combine Products and CBC products in single truckloads for
delivery to "Joint Wholesalers," in which case freight costs shall be pro-rated.
For this purpose, a "Joint Wholesaler" is a licensed beer wholesaler that has
been duly authorized by both Boston Beer and CBC to distribute their respective
products. CBC and Boston Beer will cooperate with each other in the coordination
of order entry so as to facilitate such single truckload deliveries.
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-13-
31. LIMITATION ON PERIOD OF CLAIMS.
Except as otherwise provided in this Agreement with respect to specific
issues, all claims hereunder must be brought no later than [*] after such claim
arose or the Party having such claim shall be deemed to have waived or forever
released it; provided that, for purposes of this Section 31, a claim based on a
claim by a third party shall be deemed to have arisen at the time that the Party
asserting a claim first became aware of it.
32. FINANCIAL STATEMENTS.
Each year during the Term, no later than 90 days after CBC's fiscal year
end, CBC shall provide to Boston Beer audited financial statements ("the
Financial Statements") and a 12-month forward cash flow forecast ("Cash Flow
Forecast"). The Financial Statements shall include a balance sheet, income
statement and statement of cash flows and shall be prepared in accordance with
US generally accepted accounting principles. The Cash Flow Forecast shall
provide details on projected month ending cash balances as well as expected cash
inflows and outflow by month, as well as any supplementary data including debt
arrangements or other financing plans to support CBC's ability to continue as a
going concern for at least twelve (12) months from the previous fiscal year end.
33. GUARANTY.
Subject to the terms and conditions herein, City Brewing hereby
unconditionally guarantees the due, punctual and faithful performance by CBC of
its obligations, duties, covenants and responsibilities under this Agreement.
City Brewing shall be entitled to assert any defenses or claims that City
Brewing or CBC may have under this Agreement or otherwise against any claim made
by Boston Beer and does not otherwise waive any defenses whatsoever to its
obligations under this Agreement.
IN WITNESS WHEREOF, CBC and Boston Beer have executed this Agreement as of
the date first above written.
CBC LATROBE ACQUISITION, LLC
By: /s/ Xxxx Xxxxx
------------------------------------
Xxxx Xxxxx, Chief Operating Officer
BOSTON BEER CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx, President and CEO
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-00-
Xxxx Xxxxxxx enters into this Agreement solely for purposes of providing
the guaranty set forth in Section 33 hereof.
CITY BREWING COMPANY, LLC, Guarantor
By: /s/ Xxxxx Xxxxx
------------------------------------
President
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-15-
EXHIBIT A
PRODUCTS
[*]
and any substitutions therefor and such other malt beverages as may be
requested by Boston Beer from time to time and subject to approval by CBC,
which approval will not be unreasonably withheld.
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-16-
EXHIBIT B
FEE SCHEDULE
[*]
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-17-
EXHIBIT C
SCHEDULE OF TRADEMARKS
TRADEMARK REGISTRATION NO., IF APPLICABLE DATE OF ISSUANCE
--------- ------------------------------- ----------------
Xxx Xxxxx(R) 1,987,061 July 16, 1996
Xxx Xxxxx(R) (Stylized) 2,054,509 April 22, 1997
Xxxxxx Xxxxx(R) 1,987,062 July 16, 1996
Xxxxxx Xxxxx Portrait Logo(R) 2,402,492 November 7, 0000
Xxxxxx Xxxxx Xxxxxx Xxxxx(X) 1,522,026 January 24, 1989
Xxx Xxxxx Light(R) 2,597,646 July 23, 2002
Twisted Tea(R) 2,574,263 May 28, 2002
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-18-
EXHIBIT D
LABORATORY ANALYSIS AND QUALITY ASSURANCE MONITORING PROCEDURES
STANDARD ANALYTICAL TESTING SCHEDULE - BREWING - WORT
TYPE OF TEST MINIMUM TEST FREQUENCY
------------ ----------------------
pH Each Brew
Starch Conversion (Brewing Dept.) Each Brew
Color As Requested
Dissolved Oxygen 1 Brew Weekly
STANDARD ANALYTICAL TESTING SCHEDULE - BREWING - BEER
TYPE OF TEST MINIMUM TEST FREQUENCY
------------ ----------------------
END OF FERMENTATION
Original Gravity Each Tank
Real Extract Each Tank
Alcohol Each Tank
Real Degree of Attenuation Each Tank
VDK Each Tank
pH Each Tank
IBU As Requested
Color As Requested
RUH BEER
Original Gravity Each Tank
Real Extract Each Tank
Alcohol Each Tank
Real Degree of Attenuation Each Tank
Dissolved Oxygen (Brewing Dept.) Each Tank
pH Each Tank
IBU Each Tank
Color Each Tank
Sensory Evaluation Each Tank
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-19-
EXHIBIT D CONT.
LABORATORY ANALYSIS AND QUALITY ASSURANCE MONITORING PROCEDURES
STANDARD ANALYTICAL TESTING SCHEDULE - BREWING - BEER
TYPE OF TEST MINIMUM TEST FREQUENCY
------------ ----------------------
PACKAGE RELEASE BEER
Original Gravity Each Tank
Real Extract Each Tank
Alcohol Each Tank
Color Each Tank
pH Each Tank
Turbidity Each Tank
Dissolved Oxygen (Brewing Dept.) Each Tank
CO(2) (Brewing Dept.) Each Tank
Temperature (Brewing Dept.) Each Tank
Sensory Evaluation Each Tank
STANDARD ANALYTICAL TESTING SCHEDULE - BREWING - WATER
TYPE OF TEST MINIMUM TEST FREQUENCY
------------ ----------------------
RAW WATER
pH Weekly
Alkalinity Weekly
Turbidity Weekly
Sensory Evaluation Weekly
CARBON TREATED WATER
Carbon Weekly
BREWING WATER AND R.O. WATER
pH Daily
Alkalinity Daily
Conductance Daily
Turbidity Daily
Sensory Evaluation Daily
DILUENT
Dissolved Oxygen (Brewing Dept.) Each Tank
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-20-
EXHIBIT D CONT.
LABORATORY ANALYSIS AND QUALITY ASSURANCE MONITORING PROCEDURES
STANDARD ANALYTICAL TESTING SCHEDULE - PACKAGING - ALL PRODUCTS
TYPE OF TEST - PRODUCT MINIMUM TEST FREQUENCY
---------------------- ----------------------
Package Air (bottles and cans) 3 units/2 hours and Each Tank Change
CO(2) (bottles and cans) 3 units/2 hours and Each Tank Change
Fill Volume (bottles and cans) 5 units/2 hours and Each Tank Change
Product Analysis (alcohol, RE, OG) Start-up and Each Tank Change
NA Beer Analysis (alcohol, RE, OG) Start and End of Each Run
TYPE OF TEST - PACKAGE
Crown Crimp Check (Packaging Dept.) 2 sets/shift/xxxxxxx
Removal Torque 1 set/shift/xxxxxxx or capper
Filled Carton Package Evaluation (Packaging Dept.) 48 units/2 times/shift/line
Metal Exposure (cans) 12 units/2 times/shift/line
1st Operation Seam Check 1/week and after seamer maintenance
2nd Operation Seam Check 1/shift/seamer
Can Lubricant Contamination 1/shift/seamer
Seamer Lubricant Check (Packaging Dept.) 2/shift
Can Filtec Rejects Visual (Packaging Dept.) Every hour/line
Sensory Evaluation Each Tank Change
PACKAGING LINE EQUIPMENT
Glass Inclusion Monitoring (QA/Packaging) 24 bottles/2 hrs. and 100 bottles@Start-up
Pasteurizer Temperature Monitoring (Packaging Dept.) Every 2 hours/line
Pasteurizer PU Check (non-Juice products) 1/week/line and at changeovers
Pasteurizer PU Check (Juice products) 2/shift and at changeovers
Pasteurizer Pressure Switch Check (Packaging Dept.) 1/shift/line
Package Filtec Check (Packaging Dept.) Every 2 hours/line
Full Case Filtec Check (Packaging Dept.) 2/shift/line
Date Coding-cans, bottles, carriers, cartons (Packaging) Every 2 hours and line and changeovers
Carton Set-up and Gluing (Packaging Dept.) Every 30 minutes/line
STANDARD ANALYTICAL TESTING SCHEDULE - BREWING - FMB PRODUCTS
PRODUCT RELEASE TANKS
TYPE OF TEST MINIMUM TEST FREQUENCY
------------ ----------------------
Original Gravity Each Tank
Specific Gravity Each Tank
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-21-
EXHIBIT D CONT.
LABORATORY ANALYSIS AND QUALITY ASSURANCE MONITORING PROCEDURES
STANDARD ANALYTICAL TESTING SCHEDULE - BREWING - BLENDED FMB PRODUCTS
PRODUCT RELEASE TANKS
TYPE OF TEST MINIMUM TEST FREQUENCY
------------ ----------------------
Refractive Index Each Tank
Real Extract Each Tank
Alcohol Each Tank
Color Each Tank
pH Each Tank
Turbidity Each Tank
Degrees Brix Each Tank
Total Acidity Each Tank
Dissolved Oxygen (Brewing Dept.) Each Tank
CO(2) (Brewing Dept.) Each Tank
Temperature (Brewing Dept.) Each Tank
Sensory Evaluation Each Tank
STANDARD ANALYTICAL TESTING SCHEDULE - MICROBIOLOGY
TYPE OF TEST MINIMUM TEST FREQUENCY
------------ ----------------------
WORT
Cooler Wort (aerobes and anaerobes) 1/week
Pitched Wort (aerobes and anaerobes) Each Fermenter
Pitched Wort Cell Count 1/week
Yeast % Solids (Brewing) Each Brink
Dead Cell Count 1/day
IN-PROCESS PRODUCT
Ruh Storage Tanks (aerobes and anaerobes) Each Tank
Package Release Tanks (aerobes and anaerobes) Each/1 week
Filter Series (aerobes and anaerobes) 1/week
Extended Age Product >28 days 1/week/tank
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-22-
EXHIBIT D CONT.
LABORATORY ANALYSIS AND QUALITY ASSURANCE MONITORING PROCEDURES
PACKAGED PRODUCT
Bottles and Cans (aerobes and anaerobes) 1/line/week at start-up
Rinse Water 1/line/week
Xxxxxx Water 1/line/week
STANDARD ANALYTICAL TESTING SCHEDULE - MICROBIOLOGY
TYPE OF TEST MINIMUM TEST FREQUENCY
------------ ----------------------
WATER
Well Water (coliforms) 1/month
Raw Water (aerobes) 1/week
Diluent Water (aerobes) Each/1 week
Brewing Water (aerobes) Each/1week
PITCHING YEAST
Morphology 1/day
Dead Cells 1/day
Aerobes and Anaerobes 1/day
Wild Yeast 1/day
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-23-
EXHIBIT E
ELECTRONIC REPORTING TEXT FILE FORMAT
CITY2 [INV#]000470 [BBC ORDER#][YYYYMMDD]
L[QTY] [PROD #] [CITY CHARGE][KEG DEPOSIT CHARGE]
L000028 999BB 0021000 0000000
T[TOTAL SHIPMENT CHARGE]
CITY2 343543000011 76028520061222
L000720 101301 0105192 0000000
L000015 999BB 0011250 0000000
T000116442
CITY2 343544000522 76341320061222
L000528 101301 0077141 0000000
L000011 999BB 0008250 0000000
T000085391
CITY2 343566000108 76100220061222
L000043 106099 0023057 0051600
L000384 101201 0054259 0000000
L000072 146099 0038678 0086400
L000018 999BB 0013500 0000000
T000267494
CITY2 343567000408 76120520061222
L000012 106099 0006434 0014400
L000080 149099 0056424 0096000
L000048 146099 0025786 0057600
L000020 998BSK 0030000 0000000
L000005 999BB 0003750 0000000
T000290394
CITY2 343569000059 76174220061222
L001344 101176 0189907 0000000
L000028 999BB 0021000 0000000
[*] indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidentiality treatment.
-24-
