EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement, dated as of July 1, 2004,
between Redhook Ale Brewery, Incorporated, a Washington corporation ("Redhook"),
and Anheuser-Xxxxx, Incorporated, a Missouri corporation ("ABI").
WHEREAS, Redhook and ABI have entered into an Exchange and
Recapitalization Agreement dated as of June 30, 2004 (the "Exchange Agreement"),
pursuant to which Redhook has agreed to issue and deliver to ABI, and ABI has
agreed to accept from Redhook, shares of common stock, par value $0.005 per
share ("Common Stock"); and
WHEREAS, ABI may in the future acquire additional securities
of Redhook; and
WHEREAS, in order to induce ABI to enter into the Exchange
Agreement and to acquire such shares of Common Stock and additional securities,
Redhook has agreed to provide registration rights with respect thereto;
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained, it is agreed as follows:
1. DEFINITIONS. Unless otherwise defined herein, terms defined
in the Exchange Agreement are used herein as therein defined, and the following
shall have the following respective meanings (such meanings being equally
applicable to both the singular and plural form of the terms defined):
"Agreement" shall mean this Registration Rights Agreement,
including any exhibits or schedules thereto, as such agreement may be amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof.
"Business Day" shall mean any day that is not a Saturday, a
Sunday or a day on which banks are required or permitted to be closed in the
State of Missouri, the State of New York or the State of Washington.
"CBA Distribution Agreement" shall mean the Master Distributor
Agreement between Craft Brands Alliance LLC and ABI dated July 1, 2004, as such
agreement may be amended, supplemented or otherwise modified from time to time
in accordance with the terms thereof.
"Commission" shall mean the Securities and Exchange Commission
or any other federal agency then administering the Securities Act and other
federal securities laws.
"Distribution Agreement" shall mean the Master Distributor
Agreement between Redhook and ABI dated the date hereof, as such agreement may
be amended, supplemented or otherwise modified from time to time in accordance
with the terms thereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and all rules and regulations promulgated thereunder.
"Minimum Number of Registrable Securities" shall mean either
(i) if Redhook is not eligible to file a registration statement on Form S-3 (or
other comparable short form) under the Securities Act, 250,000 shares of
Registrable Securities, (ii) if Redhook is eligible to file a registration
statement on Form S-3 (or other comparable short form) under the Securities Act,
150,000 shares of Registrable Securities, or (iii) if fewer than 250,000 shares
of Registrable Securities or 150,000 shares of Registrable Securities, as the
case may be, are outstanding, all of the remaining outstanding Registrable
Securities. Any stock split, stock dividend, recapitalization, reclassification,
stock combination or other change in the terms of Stock occurring after the date
hereof affecting the number of shares of Stock held by or issuable to ABI shall
increase or reduce the Minimum Number of Registrable Securities in the same
proportion as the shares of Stock held by or issuable to ABI were increased or
decreased by such stock split, stock dividend, recapitalization,
reclassification, stock combination or change.
"NASD" shall mean the National Association of Securities
Dealers, Inc., or any successor corporation thereto.
"Person" shall mean any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization, association,
corporation, institution, public benefit corporation, entity or government
(whether federal, state, county, city, municipal or otherwise, including,
without limitation, any instrumentality, division, agency, body or department
thereof).
"Registrable Securities" shall mean all shares of Common Stock
and other securities issued by Redhook or any Subsidiary of Redhook held by ABI
from time to time.
"Securities Act" shall mean the Securities Act of 1933, as
amended and all rules and regulations promulgated thereunder.
"Stock" shall mean all shares, options, warrants, rights,
general or limited partnership interests, participations or other equivalents
(regardless of how designated) of or in a corporation, partnership or equivalent
entity whether voting or nonvoting, including, without limitation, common stock,
preferred stock, or any other "equity security" (as such term is defined in Rule
3a11-1 of the General Rules and Regulations promulgated by the Commission under
the Exchange Act).
"Termination Date" shall mean any date (i) on which the
Distribution Agreement is duly terminated or expires in accordance with its
terms, (ii) on which the CBA Distribution Agreement is duly terminated or
expires in accordance with its terms or (iii) on which the products of Redhook
are excluded from the CBA Distribution Agreement pursuant to its terms.
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2. REQUIRED REGISTRATION.
(a) At any time, after receipt of a written request
from ABI requesting that Redhook effect the registration under the Securities
Act of at least the Minimum Number of Registrable Securities and specifying the
intended method or methods of disposition thereof, thereupon Redhook shall, as
expeditiously as is possible, but not later than 90 days after receipt of the
request, file a registration statement under the Securities Act with respect to,
and use its best efforts to effect the registration under the Securities Act of,
all shares of Registrable Securities which Redhook has been so requested to
register, all to the extent required to permit the disposition (in accordance
with the intended method or methods thereof, as aforesaid) of the Registrable
Securities so registered; PROVIDED, HOWEVER, that, except as otherwise described
in this section, Redhook shall not be required to effect more than three
registrations of any Registrable Securities pursuant to this Section 2 in any
five calendar year period.
(b) Notwithstanding the other provisions of this
Section 2, after a Termination Date, ABI shall be entitled to cause Redhook to
effect two additional registrations of Registrable Securities pursuant to
Section 2(a), notwithstanding any limitations in Section 2 or additional
registrations that might otherwise be available pursuant to Section 2.
3. INCIDENTAL REGISTRATION. If Redhook at any time proposes to
file on its behalf and/or on behalf of any of its security holders (the
"demanding security holders") a Registration Statement under the Securities Act
on any form (other than a Registration Statement on Form S-4 or S-8 or any
successor form for securities to be offered in a transaction of the type
referred to in Rule 145 under the Securities Act or to employees of Redhook
pursuant to any employee benefit plan, respectively) for the general
registration of securities, it will give written notice to ABI at least 60 days
before the initial filing with the Commission of such Registration Statement,
which notice shall set forth the intended method of disposition of the
securities proposed to be registered by Redhook. The notice shall offer to
include in such filing the aggregate number of shares of Registrable Securities
as ABI may request.
If ABI desires to have Registrable Securities registered under
this Section 3, it shall advise Redhook in writing within 20 Business Days after
the date of receipt of such offer from Redhook, setting forth the amount and
type of such Registrable Securities for which registration is requested. Redhook
shall thereupon include in such filing the number and type of shares of
Registrable Securities for which registration is so requested, subject to the
remaining provisions of this paragraph, and shall use its best efforts to effect
registration under the Securities Act of such shares. If the lead managing
underwriter of a proposed public offering shall advise Redhook that, in its
opinion, the distribution of the Registrable Securities requested to be included
in the registration concurrently with the securities being registered by Redhook
or any demanding security holder would materially and adversely affect the
distribution of such securities by such demanding security holder or Redhook or
the proceeds to be received by such demanding security holder or Redhook as a
result of the distribution of such securities, then the securities to be sold by
any demanding security holder not contractually entitled to include
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securities in the offering shall be eliminated from the offering to the extent
necessary to avoid such effect. If such reduction does not eliminate the effect,
then ABI, Redhook and each demanding security holder contractually entitled to
include securities in the offering shall each reduce the amount of securities
intended to be distributed through such offering by such parties on a pro rata
basis to the extent necessary to avoid such effect.
4. REGISTRATION PROCEDURES. If Redhook is required by the
provisions of Section 2 or 3 to use its best efforts to effect the registration
of any of its securities under the Securities Act, Redhook will, as
expeditiously as possible:
(a) prepare and file with the Commission a
Registration Statement with respect to such securities which shall be available
for the sale of the Registrable Securities in accordance with the intended
method of distribution thereof, cause the Registration Statement not to misstate
any material fact and not to omit to state any material fact required to be
included therein or necessary to make the statements therein not misleading in
the light of the circumstances when made and to comply in all material respects
with the requirements of the Securities Act, and use its best efforts to cause
such Registration Statement to become and remain effective for a period of time
required for the disposition of such securities by ABI;
(b) use best efforts to prepare and file with the
Commission such amendments and supplements to such Registration Statement and
the prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of all securities
covered by such Registration Statement until such time as all of such securities
have been disposed of in a public offering (the expenses of such amendments and
supplements being paid as described in Section 5(a) hereof);
(c) furnish to ABI such number of copies of a summary
prospectus or other prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents, as ABI may reasonably request;
(d) use its best efforts to register or qualify the
securities covered by such Registration Statement under such other securities or
blue sky laws of such jurisdictions within the United States and Puerto Rico as
ABI shall request (PROVIDED, HOWEVER, that Redhook shall not be obligated to
qualify as a foreign corporation to do business under the laws of any
jurisdiction in which it is not then qualified or to file any general consent to
service of process), and do such other reasonable acts and things as may be
required of it to enable ABI to consummate the disposition in such jurisdiction
of the securities covered by such Registration Statement;
(e) at the request of ABI, cause all Registrable
Securities to be listed on any securities exchange or any automated quotation
system on which Stock of the same class is then listed or quoted or, if the
Registrable Securities are Common Stock and the Common Stock is not so listed or
quoted and Redhook meets the requirements therefor, on the NASDAQ Stock Market;
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(f) make available for inspection by ABI, any
underwriter participating in the distribution of the Registrable Securities, any
representative of any such underwriter and any attorney or accountant designated
by ABI, at reasonable times and in a reasonable manner and subject to reasonable
limitations designed to protect the confidentiality of proprietary information
not required to be disclosed in the Registration Statement, all financial and
other records, pertinent documents and properties of Redhook, and cause the
respective officers, directors and employees of Redhook to supply all
information reasonably requested by ABI and any such underwriter,
representative, attorney or accountant;
(g) a reasonable time prior to the filing thereof,
deliver to ABI the Registration Statement, the prospectus, any amendment to the
Registration Statement or supplement to any prospectus or any document that is
to be incorporated by reference into the Registration Statement or prospectus,
and make such representatives of Redhook as shall be reasonably requested by ABI
available for discussion of any such document, but subject to reasonable
limitations designated to protect the confidentiality of proprietary information
not required to be disclosed in the Registration Statement;
(h) furnish, at the request of ABI, on the date that
such shares of Registrable Securities are delivered to the underwriters for sale
pursuant to the offering or, if such Registrable Securities are not being sold
through underwriters, on the date that the Registration Statement with respect
to such shares of Registrable Securities becomes effective, (1) an opinion
letter, dated such date, of the independent counsel representing Redhook for the
purposes of such registration, addressed to the underwriters, if any, and if
such Registrable Securities are not being sold through underwriters, then to
ABI, in customary form and covering matters of the type customarily covered in
such legal opinions; and (2) a comfort letter dated such date, from the
independent certified public accountants of Redhook, addressed to the
underwriters, if any, and if such Registrable Securities are not being sold
through underwriters, then to ABI and, if such accountants refuse to deliver
such letter to ABI, then to Redhook, in a customary form and covering matters of
the type customarily covered by such comfort letters and as the underwriters or
ABI shall reasonably request. Such letter from the independent certified public
accountants shall additionally cover such other financial matters (including
information as to the period ending not more than five Business Days prior to
the date of such letter) with respect to the offering in respect of which such
letter is being given as ABI may reasonably request;
(i) enter into customary agreements (including an
underwriting agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities and cause the officers and employees of Redhook to
participate in road shows or other marketing efforts customarily undertaken by
registrants in public offerings as may be reasonably requested by ABI or the
underwriters of its Registrable Securities;
(j) promptly notify ABI and, if requested by ABI,
confirm such advice in writing (1) when the Registration Statement has become
effective and when any post-effective amendments thereto become effective, (2)
of any request by the Commission or any state securities authority for
amendments and supplements to the Registration Statement and
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prospectus or for additional information, (3) of the issuance by the Commission
or any state securities authority of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose; and (4) at any time when a prospectus relating to such Registrable
Securities is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus includes an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances when made or, if for any other reason it shall be
necessary during such period to amend or supplement the Registration Statement
or the prospectus or to file under the Exchange Act any document incorporated by
reference into the Registration Statement; and under those circumstances, at the
request of ABI, Redhook shall prepare and file such document and furnish to ABI
as many copies as ABI may from time to time reasonably request, including but
not limited to copies of a supplemented prospectus or a supplement to such
prospectus as may be necessary to correct such statement or omission or effect
such compliance;
(k) use its best efforts to obtain the withdrawal of
any order suspending the effectiveness of the Registration Statement as promptly
as possible and provide prompt notice to ABI of the withdrawal of any such
order;
(l) use its best efforts to comply with all
applicable rules and regulations of the Commission, use best efforts to take all
other steps necessary to effect the registration of the Registrable Securities
and make available to its security holders, as soon as reasonably practicable,
but not later than 18 months after the effective date of the Registration
Statement, an earnings statement covering the period of at least 12 months
beginning with the first full month after the effective date of such
Registration Statement, which earnings statements shall satisfy the provisions
of Section 11(a) of the Securities Act; and
(m) It shall be a condition precedent to the
obligation of Redhook to take any action pursuant to this Agreement in respect
of the securities which are to be registered at the request of ABI that ABI
shall furnish to Redhook such information regarding the securities held by ABI
and the intended method of disposition thereof as Redhook shall reasonably
request and as shall be required in connection with the action taken by ABI.
5. EXPENSES. All expenses incurred in complying with this
Agreement, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the NASD), printing expenses,
fees and disbursements of counsel for Redhook, the reasonable fees and expenses
of a single counsel for the holders of the securities to be sold in the offering
(selected by those holding a majority of the securities being registered in the
event of a registration pursuant to Section 3 and selected by ABI in the event
of a registration pursuant to Section 2), expenses of any special audits
incident to or required by any such offering, rating agency fees and expenses of
complying with the securities or blue sky laws of any jurisdiction pursuant to
Section 4 (d), shall be paid by Redhook, except that
(a) all such out-of-pocket expenses in connection
with any amendment or supplement to the Registration Statement or prospectus
filed more than 270 days after the effective date of such Registration Statement
because ABI has not effected the disposition of the
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securities requested to be registered shall be paid by ABI (provided that in the
event that the Registration Statement was subject to any order suspending the
effectiveness of the Registration Statement for any period, for purposes of this
Section 5(a) such period shall be excluded for purposes of determining the
period for which the Registration Statement has been effective);
(b) Redhook shall not be liable for any fees,
discounts or commissions to any underwriter or any fees or disbursements of
counsel for any underwriter in respect of the securities sold by ABI.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) In the event of any registration of any
Registrable Securities under the Securities Act pursuant to this Agreement,
Redhook shall indemnify and hold harmless ABI, ABI's directors and officers,
each other person (including each underwriter) who participated in the offering
of such Registrable Securities and each other person, if any, who controls ABI
or such participating person within the meaning of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, to which ABI or
any such director or officer or participating person or controlling person may
become subject under the Securities Act or any other statute or at common law,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any actual or alleged untrue
statement of any material fact contained in any Registration Statement under
which such securities were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, or (ii) any actual or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse ABI or such director, officer or participating
person or controlling person for any legal or any other expenses reasonably
incurred by ABI or such director, officer or participating person or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that Redhook shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any actual or alleged untrue statement or actual
or alleged omission made in such Registration Statement, preliminary prospectus,
prospectus or amendment or supplement in reliance upon and in conformity with
written information furnished to Redhook by ABI specifically for use therein or
(in the case of any registration pursuant to Section 2) so furnished for such
purposes by any underwriter. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of ABI or such
director, officer or participating person or controlling person, and shall
survive the transfer of such securities by such holder.
(b) ABI agrees to indemnify and hold harmless
Redhook, its directors and officers and each other person, if any, who controls
Redhook within the meaning of the Securities Act against any losses, claims,
damages or liabilities, joint or several, to which Redhook or any such director
or officer or any such person may become subject under the Securities Act or any
other statute or at common law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
information in writing provided to Redhook by ABI specifically for use and
contained, on the effective date thereof, in any Registration Statement under
which securities were registered under the Securities Act at the
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request of ABI, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto. Notwithstanding the foregoing,
ABI shall not be required to provide indemnification pursuant to this Section
6(b) in excess of the amount by which the net proceeds realized by ABI from the
sale of the Registrable Securities in the offering exceeds the amount of any
damages that ABI has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
(c) In case any proceeding (including any
governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
Section 6(a) or Section 6(b), the indemnified party shall promptly notify the
indemnifying party in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel satisfactory in the reasonable judgment
of the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel for all such indemnified parties) and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by ABI, in the case of parties indemnified pursuant to
Section 6(a), and by Redhook, in the case of parties indemnified pursuant to
Section 6(b). The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this Section 6(c),
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding even if effected without its written consent if (i) such settlement
is entered into more than 30 days after receipt by such indemnifying party of
the aforesaid request and of written notice of the terms of such settlement and
(ii) such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this
Section 6 from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then the indemnifying party, in lieu of
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indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified parties in connection
with the actions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified parties shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to, information
supplied by, such indemnifying party or indemnified parties, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with any investigation or proceeding.
(e) The parties hereto agree that it would not be
just and equitable if contribution pursuant to Section 6(d) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
7. POSTPONEMENT OF REGISTRATION OBLIGATIONS.
(a) Notwithstanding the other provisions of this
Agreement, Redhook shall be entitled to postpone for a reasonable period of time
(but not exceeding three months) the filing of any registration statement
otherwise required to be prepared and filed by it pursuant to Section 2, if
Redhook determines, in its reasonable judgment, that such registration and
offering would interfere with any financing, acquisition, corporate
reorganization or other material transaction involving Redhook or would require
premature disclosures thereof. Redhook shall promptly give ABI written notice of
such determination, containing a general statement of the reasons for such
postponement and a specification of the anticipated delay. Redhook shall not be
entitled to exercise its rights under this Section 7(a) during any period in
which it is undertaking a registration for any other holder of securities or for
itself.
(b) If Redhook shall so postpone the filing of a
registration statement under this Section, ABI shall have the right to withdraw
the request for registration by giving written notice to Redhook within 20 days
after receipt of the notice of postponement, and, in the event of such
withdrawal, such request shall not be counted for purposes of the requests for
registration to which ABI is entitled pursuant to Section 2 hereof.
8. SELECTION OF MANAGING UNDERWRITERS. The lead managing
underwriter for any offering of Registrable Securities to be conducted pursuant
to Section 2 shall be selected by ABI but shall either be a nationally
recognized underwriter of securities or such other underwriter as shall be
acceptable in the reasonable judgment of Redhook.
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9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. Redhook will not
hereafter enter into any agreement with respect to its securities which is
inconsistent with the rights granted to ABI in this Agreement. Redhook does not
have in effect any agreement with respect to any of its securities granting any
registration rights to any person. Any right granted by Redhook to any other
Person to include securities held by that Person in a registration effected
pursuant to Section 2 or the inclusion of securities to be issued or sold by
Redhook in a registration effected pursuant to Section 2 shall apply or be
permitted only to the extent that the lead managing underwriter of the offering
advises ABI that, in its opinion, the distribution of the securities requested
to be included in the registration concurrently with the Registrable Securities
would not materially and adversely affect the distribution of such securities by
ABI or the proceeds to be received by ABI as a result of the distribution of the
Registrable Securities.
(b) REMEDIES. ABI, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. Redhook
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate. In any action or proceeding brought to enforce
any provision of this Agreement or where any provision hereof is validly
asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees in addition to any other available remedy.
(c) AMENDMENTS AND WAIVERS. Except as otherwise
provided herein, the provisions of this Agreement may not be amended, modified,
supplemented or waived unless the same shall be in writing and signed by Redhook
and ABI and shall specifically refer to this Agreement. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any preceding or succeeding breach, and no failure by
either party to exercise any right or privilege hereunder shall be deemed a
waiver of such party's rights or privileges hereunder or shall be deemed a
waiver of such party's rights to exercise the same at any subsequent time or
times hereunder.
(d) NOTICE GENERALLY. Any notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder to be
made pursuant to the provisions of this Agreement shall be sufficiently given or
made if in writing and either delivered in person with receipt acknowledged or
sent by registered or certified mail, return receipt requested, postage prepaid,
or by telecopy and confirmed by telecopy answerback, addressed as follows:
(i) if to ABI, at
Anheuser-Xxxxx, Incorporated
Xxx Xxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Vice President-Business and
Wholesaler System Development
Telecopy Number: (000) 000-0000
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with a copy to:
Anheuser-Xxxxx Companies, Inc.
Xxx Xxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Vice President and General
Counsel
Telecopy Number: (000) 000-0000
(ii) if to Redhook, at
Redhook Ale Brewery, Incorporated
00000 XX 000xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Attention: President
Telecopy Number: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxxx X.X.
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxx
Telecopy Number: (000) 000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, telecopied and confirmed by telecopy
answerback or three Business Days after the same shall have been deposited in
the United States mail.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties hereto including any affiliate of ABI that ABI designates to hold
or receive the Registrable Securities and any person to whom Registrable
Securities are transferred by ABI, other than any Person that is not an
Affiliate of ABI acquiring such Registrable Securities (i) in an offering
registered under the Securities Act or (ii) pursuant to Section 4(1) of the
Securities Act or Rule 144 or Rule 144A (or any similar provision then in force)
promulgated under the Securities Act of 1933 if such Person is permitted to
publicly resell publicly the Registrable Securities held by such Person so long
as it is not an affiliate of Redhook without subsequent registration under the
Securities Act or compliance with the requirements of Rule 144 thereunder. Any
right or remedy, arising hereunder or by reason hereof, shall be assignable by
ABI to any Affiliate without the prior written consent of Redhook, so long as
ABI shall remain liable for ABI's obligations hereunder.
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(f) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) GOVERNING LAW. This Agreement shall be governed
by the laws of the State of Washington, without regard to the provisions thereof
relating to conflict of laws.
(h) SEVERABILITY. Wherever possible, each provision
of this Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
(i) ENTIRE AGREEMENT. This Agreement, together with
the Exchange Agreement, represents the complete agreement and understanding of
the parties hereto in respect of the subject matter contained herein and
therein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to the subject matter hereof.
(j) COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original and
all of which together shall be deemed to be one and the same instrument.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, Redhook and ABI have executed this Agreement as of
the date first above written.
REDHOOK ALE BREWERY, INCORPORATED
By:/s/ XXXX XXXXXXX
-----------------------------------------
Title: President and Chief Executive Officer
ANHEUSER-XXXXX, INCORPORATED
By: /s/ XXXXX X. XXXXXXXXXXX
--------------------------------------------
Title: Vice President - Administration
