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EXHIBIT 10.25
SARATOGA SPLASH AGREEMENT
Exhibit 2
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June 30, 1997
Saratoga Beverage Group, Inc.
00 Xxxxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxxx
President
Dear Xx. Xxxxxx:
Re: Manufacturing and Distribution Agreement dated as of July, 1996
This will confirm our agreement as follows:
1. The referenced Manufacturing and Distribution Agreement (the
"Agreement") shall be, and the same hereby is, terminated on the mutual consent
of the parties, effective June 30, 1997.
2. Subject to the other terms and conditions of this Letter Agreement,
Mistic Brands, Inc. ("Mistic") hereby grants to Saratoga Beverage Group, Inc.
("Saratoga"), in perpetuity, the nonexclusive right to use the formulations and
the exclusive right to use the graphic designs heretofore utilized by Mistic in
connection with Beverages sold under the Saratoga Splash Trademark pursuant to
the Agreement. Except as expressly set forth in para. 6 of this Letter
Agreement, Mistic makes no warranty or representation as regards such
formulations and/or graphic designs. Subject to para. 6 hereof, Saratoga agrees
to defend, indemnify and hold harmless Mistic from and against any and all loss,
damage, cost or expense (including court costs and reasonable attorney fees)
arising out of, or relating to the manufacture, sale or distribution of products
using such formulations and/or graphic designs, provided that, if such loss,
damage, cost or expense is solely or partially (in which case responsibility and
liability shall be apportioned) due to such formulations as provided by Mistic
yielding products which are adulterated or not wholesome and fit for human
consumption.
3. Saratoga shall pay to Mistic on an annual basis a royalty of
$.50/case on the first 50,000 physical cases of products sold utilizing (wholly
or in part) the formulations and/or the graphic designs referenced in para. 2
above. For case sales above 50,000 physical cases the royalty rate shall be
$.25/case. Royalties will be calculated based on shipments to customers, net of
returns for sub-standard
Exhibit 3
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product, and shall be payable within thirty (30) days after the end of each
month. For purposes of this paragraph, a "physical case" will consist of either
24 16 oz. bottles or 12 one-liter bottles.
4. Saratoga shall purchase, f.o.b. the current location of the same and
on payment terms of 2% ten (10) days, net thirty (30) days, all usable Saratoga
Splash raw materials and finished goods at Mistic's cost therefor. Exhibit A
attached hereto sets forth Mistic's inventories of such raw materials and
finished goods.
5. Mistic agrees to sell to Saratoga and Saratoga agrees to purchase
from Mistic, f.o.b. Carteret, New Jersey and on payment terms of 2% ten (10)
days, net thirty (30) days, Saratoga's requirements for the key flavoring
elements utilized in the formulations referenced in para. 2 above; such flavor
elements are set forth in Exhibit B attached hereto. Pricing for such flavor
elements shall be at Mistic's cost therefor plus five percent (5%).
6. (a) Mistic represents and warrants to Saratoga that Mistic has the
right to grant the rights set forth in para. 2 above with respect to
the use of the formulations and graphic designs described therein.
Mistic acknowledges the ownership of the Saratoga Splash Trademark by
Saratoga.
(b) Mistic agrees that it will indemnify and hold Saratoga harmless
from and against any loss, damage, cost or expense (including court
costs and reasonable attorney fees) arising out of or resulting from
any claims that the authorized use by Saratoga of the formulations
and/or graphic designs described in para. 2 infringe the rights of any
third party.
(c) Subject to para. 6 (a) above, Saratoga acknowledges the validity
of and ownership by Mistic of the formulations and graphic designs
described in para. 2 above and agrees to take no action which would
prejudice or interfere with such validity or such ownership.
7. Neither Mistic nor Saratoga shall be held liable for any failure to
comply with any of the terms of this Letter Agreement to the extent any such
failure is caused directly or indirectly by fire, strike, union or other labor
problems, war (whether or not declared), riots, insurrection, government
restrictions or other acts, or other causes beyond the control of or without
fault on the part of either of them. Upon the occurrence of any event of the
type referred to herein, the party affected thereby shall give prompt notice
thereof to the other party, together with a description of such event and the
duration for which such party reasonably expects its ability to comply with the
provisions of this Letter Agreement to be affected thereby. The party affected
shall thereafter devote its reasonable efforts to remedy to the extent possible
the condition giving rise to such event and to resume performance of its
obligations hereunder as promptly as possible.
8. Nothing herein shall be deemed to constitute Mistic and Saratoga as
partners, joint ventures or otherwise associated in or with the business of the
other. Saratoga is and shall always remain an independent contractor and neither
party shall be liable for any debts, accounts, obligations or other liabilities
of the other party, its agents or employees. Neither party is authorized to
incur debts or other obligations of any kind on the part of or as agent for the
other except as may be specifically authorized in writing. It is expressly
recognized that no fiduciary relationship exists between the parties.
9. (a) Subject to the other terms and conditions of this Letter
Agreement, the initial term hereof shall be a period of ten (10) years.
Thereafter this Letter Agreement may be extended for further and
consecutive one (1) year renewal terms, provided that either party may
terminate this Letter Agreement without cause by written notice given
within sixty (60) days prior to the end of the initial or any renewal
term.
(b) Saratoga may elect at any time to cease its business under
this Letter Agreement entirely. If it so elects, it shall give Mistic
sixty (60) days prior written notice of its intention to do so. The
termination of this Letter Agreement shall be effective as of the
expiration of such sixty (60) day period. Saratoga shall not
subsequently re-enter the business of manufacturing, distributing or
selling the same or a similar product as covered by this Letter
Agreement for a period of at least eighteen (18) months following such
termination.
Exhibit 4
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10. This Letter Agreement and any and all rights of Saratoga hereunder
and any and all obligations of Mistic hereunder shall immediately terminate upon
the occurrence of any of the following:
(a) The cessation by Saratoga of its business; or
(b) The insolvency of Saratoga, the filing by or against
Saratoga of a voluntary or involuntary petition pursuant to any present
or future act of the Federal congress on the subject of bankruptcy, or
the institution of any proceeding or arrangement by or against Saratoga
relating to or in the nature of a bankruptcy, insolvency or assignment
for the benefit of creditors, which proceeding or arrangement is
consented to by Saratoga or is not dismissed or discontinued within
thirty (30) days after the institution of such proceeding or
arrangement.
11. This Agreement may be terminated at any time by either party in the
event that the other party shall fail to perform any of the covenants and
obligations herein contained to be performed by said party by written notice of
such failure delivered to the failing party by the other, stating the nature and
character thereof and allowing the failing party sixty (60) days from the date
of such notice to correct such failure, unless such failure of performance has
resulted from an event of the type described in para. 7, in which case such
notice shall allow the failing party the period of time specified in the notice
of such event from the failing party to the other as necessary to correct such
failure. If such failure has not been corrected by the failing party within the
period specified in this para. 11, or under para. 7, the other may terminate
this Agreement forthwith.
12. In the event of a change in control of Saratoga, which change in
control results in any competitor of Mistic, Royal Crown Company, Inc. or
Snapple Beverage Corp. obtaining control of Saratoga, Mistic may terminate this
Letter Agreement immediately upon written notice. For purposes of this Letter
Agreement, the term "change in control" shall mean, without limitation, the
acquisition by any person of 50% or more of the combined voting power of
Saratoga.
13. Saratoga shall maintain for the benefit of both Saratoga and Mistic
occurrence basis comprehensive general liability insurance (including products
liability and contractual liability with respect to the indemnity obligations
set forth in para. 2 hereof). The insurance shall be maintained with limits of
not less than $5,000,000 bodily injury or death to any person per occurrence and
$100,000 property damage per occurrence (or $5,000,000 combined single limit per
occurrence bodily injury and property damage).
Saratoga agrees to provide a certificate of insurance acceptable to
Mistic within thirty (30) days of executing this Letter Agreement. The
certificate shall name Mistic as an additional insured and shall provide that
the insurance afforded applies as primary coverage and will not be contributory
with any other insurance available to Mistic, and that the coverage afforded
under the policy will not be canceled or changed so as to reduce or restrict the
coverage unless and until after at least thirty (30) days prior written notice
has been given to Mistic.
14. The failure of either party to give notice of non-performance or
termination shall not constitute a waiver of the covenants, terms or conditions
herein, or of the rights of either party thereafter to enforce such covenants,
terms or conditions or to terminate this Letter Agreement upon any subsequent
occurrence or date.
15. Any notice to be given pursuant to the provisions of this Letter
Agreement shall be in writing and shall be sent by registered mail, addressed in
the case of Saratoga to:
Saratoga Beverage Group, Inc.
00 Xxxxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxx Xxxx 00000
Attention: President
and in the case of notice to Mistic to:
Exhibit 5
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Mistic Brands, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: General Counsel
16. This Letter Agreement (which terms for the purpose hereof shall
mean and include any and all Exhibits hereto) contains the complete agreement
between the parties in respect of the subject matter hereof, and any and all
prior agreements relating to the subject matter hereof are superseded in their
entirety hereby. Except as specifically provided herein, this Letter Agreement
may not be amended or supplemented, nor any of the provisions hereof waived,
except by an agreement in writing signed by Saratoga and Mistic.
17. This Letter Agreement shall be construed in accordance with, and
governed by, the internal laws of the State of New York, without giving effect
to the principles of conflict of laws thereof. The parties agree that any
dispute arising out of or relating to this Letter Agreement shall be resolved by
binding arbitration in the City of Albany, State of New York, under the
Commercial Arbitration Rules of the American Arbitration Association. Each of
the parties hereto consents to the jurisdiction and venue of the City of Albany,
State of New York for purposes of this Section 17 and hereby irrevocably waives
any objection, including any objection to the laying of venue or based on the
grounds of forum non conveniens which it may now or hereafter have to the
bringing of any dispute in the City of Albany, State of New York, under the
Commercial Arbitration Rules of the American Arbitration Association, in respect
of this Letter Agreement or any documents related thereto. Each of the parties
hereto waives personal service of any summons, complaint or other process, which
may be made by any other means permitted under New York law.
Exhibit 6
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized representative as of the date
first above written.
SARATOGA BEVERAGE GROUP, INC.
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Chief Executive Officer
MISTIC BRANDS, INC.
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
contract.sarbgagr Sr. Vice President
6/30/97 & General Counsel
Exhibit 7