EXHIBIT 10.6
XXXXXX BREWING COMPANY
DISTRIBUTOR AGREEMENT
Xxxxxx Brewing Company agrees to sell and the undersigned Distributor
agrees to buy and market such products as are listed on the Distributor Data
Sheet attached hereto, pursuant to the following terms and conditions:
1. DISTRIBUTOR'S REPRESENTATIONS
Distributor represents and warrants that:
(a) The information submitted to Xxxxxx in Distributor's application,
including any marketing plans, and the information on the Distributor Data
Sheet (which shall have been completed and signed by Distributor at the time
this Agreement is executed) is true and complete.
(b) Distributor has all permits and licenses necessary for Distributor
lawfully to distribute Xxxxxx products in Distributor's Area (as defined in
Paragraph 2[a] or 2[b] below).
(c) Distributor has not paid nor agreed to pay any fee or monetary
consideration or anything of value to Xxxxxx or to or for the benefit of any
Xxxxxx officer, director, employee or representative with respect to the
issuance of this Agreement.
In reliance on the above representations and warranties, Xxxxxx enters
into this Agreement with Distributor.
2. DISTRIBUTOR'S AREA
(a) The following provisions shall be applicable during all such times
as permitted by applicable state or federal law or regulation:
Xxxxxx hereby appoints Distributor as its sole distributor within the
geographic area described in the Distributor Data Sheet ("Distributor's
Area") for the Xxxxxx products listed in the Distributor Data Sheet ("Xxxxxx
products"). Unless Xxxxxx has granted its prior written approval,
Distributor shall not sell or supply Xxxxxx products to any retail location
within another authorized Xxxxxx distributor's area nor to any person
Distributor has reason to believe will sell or supply all or part of such
products to any retail location within another authorized Xxxxxx
distributor's area. Nothing in this subparagraph shall prevent Distributor
from selling or supplying Xxxxxx products to another authorized Xxxxxx
distributor for the purpose of eliminating product shortages or inventory
imbalances.
(b) The following provisions, rather than the provisions of subparagraph
(a), shall apply whenever any of the provisions of subparagraph (a) are
expressly prohibited by any final court order or precluded by any applicable
statute or regulation:
Page 1 Exhibit 10.6
Xxxxxx hereby appoints Distributor as a distributor within the geographic
area described in the Distributor Data Sheet ("Distributor's Area") for the
Xxxxxx products listed in the Distributor Data Sheet ("Xxxxxx products").
Distributor's primary responsibility shall be to promote and sell Xxxxxx
products to retail locations in Distributor's Area. If Distributor sells or
supplies Xxxxxx products to retail locations outside Distributor's Area or to
any person (other than an authorized Xxxxxx distributor) who Distributor has
reason to believe will sell or supply all or part of such products to retail
locations outside Distributor's Area, Distributor's obligations under
Paragraph 4 of this Agreement shall extend to each such retail location.
Distributor shall notify Xxxxxx immediately of all such sales in order to
ensure effective monitoring of Distributor's compliance with all such
obligations.
3. MANAGEMENT OF DISTRIBUTOR
(a) Distributor agrees to have at all times a Manager approved by Xxxxxx
who shall manage Distributor's business and vigorously promote and sell
Xxxxxx products in accordance with this Agreement. The Manager shall be
designated on the Distributor Data Sheet. Xxxxxx has entered into this
Agreement in reliance upon and in consideration of the personal
qualifications of the individual designated as Manager.
(b) Distributor agrees that the individual designated as
Successor-Manager on the Distributor Data Sheet shall become Manager of
Distributor whenever the current Manager becomes unable or ceases for any
reason to function as Manager. Xxxxxx has entered into this Agreement in
reliance upon and in consideration of the personal qualifications of the
individual designated as Successor-Manager. Distributor shall notify Xxxxxx
in writing (i) if the Successor-Manager succeeds to the position of Manager;
and (ii) if, for any reason, Successor-Manager is no longer available or is
unable to assume the position of Manager. Distributor shall thereupon
appoint a new Successor-Manager in accordance with the procedures set forth
in subparagraph (c) below.
(c) Within ninety (90) days after Distributor ceases for any reason to
have a designated Successor-Manager, Distributor shall submit to Xxxxxx a
written application in the form provided by Xxxxxx requesting Xxxxxx'x
approval of a properly-qualified individual selected by Distributor as
Successor-Manager. Xxxxxx shall have the right to interview the individual
proposed as Successor-Manager and Distributor shall provide Xxxxxx with
information reasonably related to the individual's qualifications to serve as
Manager. Within sixty (60) days after the date of receipt of Distributor's
application for a new Successor-Manager, Xxxxxx shall grant its approval
unless it determines that the proposed Successor-Manager lacks the necessary
qualifications to manage Distributor's business and to promote and sell
Xxxxxx products in accordance with this Agreement. If Xxxxxx does not approve
the proposed Successor-Manager, Distributor shall submit another application
within sixty (60) days and the procedures described in this subparagraph
shall be repeated as often as necessary. Any changes in the identity of the
Manager or Successor-Manager shall be entered on the Distributor Data Sheet.
(d) Until such time as the Successor-Manager becomes Manager of
Distributor's business, (i) Distributor shall have the unlimited right to
revoke its designation of the Successor-Manager by giving notice to Xxxxxx of
such revocation and by submitting a new
Page 2 Exhibit 10.6
Successor-Manager application pursuant to subparagraph (c) above, and (ii)
Xxxxxx shall have the right to withdraw its approval of the Successor-Manager
by giving written notice to Distributor. Any agreement that Distributor may
enter into with a proposed or designated Successor-Manager shall provide that
such individual shall have no legal rights to become Manager if Xxxxxx
disapproves or withdraws its approval pursuant to this Paragraph.
(e) Notwithstanding the other provisions of this Paragraph, Distributor
may, with Xxxxxx'x prior written approval, forgo designating a
Successor-Manager until such time as Xxxxxx, by giving Distributor ninety
(90) days' prior written notice, requires such designation.
(f) Subject to the provisions of subparagraph (b) above, Distributor may
at its sole discretion terminate the employment of Manager or change
Manager's duties so that he is no longer managing the business.
4. OPERATION OF DISTRIBUTOR
(a) Distributor shall sell Xxxxxx products only to retailers and other
persons to whom Distributor is duly licensed to sell such products and shall
otherwise comply with all valid laws, regulations and orders applicable to
the sale of Xxxxxx products. Distributor shall maintain all permits and
licenses necessary to distribute Xxxxxx products in Distributor's Area.
Distributor shall submit to Xxxxxx copies of all such permits and licenses,
subsequent amendments thereto, renewals thereof, and all applications for
such permits, licenses, amendments or renewals.
(b) Distributor shall aggressively market and promote the sale of the
full package line of Xxxxxx products listed on the Distributor Data Sheet.
Distributor shall submit marketing plans to Xxxxxx upon Xxxxxx'x request.
Distributor shall use its best efforts to comply fully with any marketing
plans and other commitments submitted by Distributor to Xxxxxx, shall adjust
such plans from time to time to meet changing market conditions, and shall
monitor the marketing activity of competing products. Unless Xxxxxx shall
otherwise specify in writing, (i) Distributor shall follow a sales program
that classifies accounts based on competitive volume surveys and establishes
a sufficient frequency of calls to the retail accounts based upon the sales
potential of each account, and (ii) Distributor shall utilize route books and
maintain records that reflect sales made by Distributor to individual retail
locations.
(c) Distributor shall maintain a balanced on-floor inventory at a level
prescribed from time to time by Xxxxxx for the full package line of Xxxxxx
products listed on the Distributor Data Sheet.
(d) Distributor shall take all necessary actions to ensure the quality
control of Xxxxxx products in compliance with Xxxxxx'x Quality Control
Standards. These actions shall include, but not be limited to:
(i) observance of Xxxxxx'x code-date requirements;
Page 3 Exhibit 10.6
(ii) proper stock rotation in the warehouse, vehicles, and retail
locations;
(iii) proper handling and protection from damage of all Xxxxxx
products, containers, and dunnage;
(iv) sale of Xxxxxx products solely out of inventory in
Distributor's warehouse and on an oldest code-date-first basis, unless Xxxxxx
shall otherwise approve in writing;
(v) maintenance of clean, operational, controlled-temperature
warehouse(s) of sufficient capacity to meet Xxxxxx'x inventory, storage, and
quality control requirements; and
(vi) implementation of a program in Distributor's Area for: (a)
preventing Xxxxxx products bearing expired code dates ("overage products")
from reaching consumers, (b) retrieving overage Xxxxxx products from retail
locations, (c) replacing such products with fresh Xxxxxx products at no cost
to the retailer, and (d) destroying promptly any damaged or overage Xxxxxx
products at no cost to Xxxxxx unless the overage or damaged condition was
Xxxxxx'x responsibility.
(e) Distributor shall maintain sufficient working capital to ensure that
its facilities, equipment and personnel are adequate to compete effectively
with other brands of beer. Distributor's market force shall be sufficient in
size to serve all retail accounts within Distributor's Area and to perform
all necessary sales and marketing functions.
(f) Distributor's Manager and other designated personnel shall attend
Xxxxxx sales, marketing and related meetings and training sessions as
scheduled by Xxxxxx and shall consistently and effectively use Xxxxxx
training programs and materials in Distributor's operation.
(g) Distributor shall preserve and enhance the high quality image,
reputation and goodwill of Xxxxxx and its products through (i) the appearance
and attitude of Distributor personnel, (ii) the maintenance of vehicles,
equipment and facilities, and (iii) the participation of Distributor's
Manager and other personnel in community organizations, activities and events.
(h) Distributor shall maintain complete and accurate records of orders
and deliveries from Xxxxxx, as well as sales and inventory records, in such
forms as may be prescribed by Xxxxxx, shall submit to Xxxxxx reports based on
such records, and shall provide Xxxxxx access to such records.
(i) Distributor shall be open for business during customary business
hours and days to be competitive with major competition. Distributor shall
provide regular deliveries of Xxxxxx products with sufficient frequency to be
competitive with major competition.
(j) Distributor shall ensure the safe and proper handling, storage,
placement, and installation of Xxxxxx point-of-sale materials, shall display
such materials in a conspicuous place wherever possible at each retail
location, and shall maintain records pertaining to their
Page 4 Exhibit 10.6
use. Distributor shall display, at Distributor's expense and in a
conspicuous exterior location on Distributor's warehouse, a type of sign
recommended by Xxxxxx which shall be at least as prominent as the sign of any
other product Distributor sells.
(k) Upon receipt of written notice from Xxxxxx, Distributor shall
discontinue any advertising or promotional practices that Xxxxxx finds
injurious to Xxxxxx'x image or business.
(l) Distributor shall submit only complete and truthful notices,
reports, claims, requests for payment or other communications to Xxxxxx.
(m) Distributor shall purchase and maintain sufficient insurance
coverage, shall pay all federal, state, and local taxes imposed on it and
shall use its best efforts to discharge promptly all debts incurred in the
operation of its business.
(n) Distributor shall comply with the other provisions of this Agreement
and shall observe all such other requirements as Xxxxxx may reasonably impose
from time to time for the effective marketing of Xxxxxx products.
5. OWNERSHIP OF DISTRIBUTOR
(a) The prior approval of Xxxxxx shall not be required for the transfer
at death to heir(s) or legatee(s) of Distributor's business or any ownership
interest therein. Any subsequent change in control, as defined in
subparagraph (c) below, shall require Xxxxxx'x prior written approval.
(b) Distributor shall have the right to sell, transfer or otherwise
dispose of its entire business or any part of its business except when such
disposition results in the transfer of Distributor's rights or obligations
under this Agreement, in which case Distributor shall follow the procedures
and comply with the conditions set forth in this subparagraph:
(i) Distributor shall give written notice on a form provided by
Xxxxxx before proceeding with negotiations concerning a possible sale.
Distributor and representatives of Xxxxxx shall meet as soon as practicable
to discuss the proposed sale. Distributor shall not proceed with such
negotiations for sixty (60) days following Xxxxxx'x receipt of the forgoing
notice or such lesser period as Xxxxxx shall specify.
(ii) Any sale, transfer or other disposition shall be subject to
the prior written approval of Xxxxxx as specified in this Paragraph 5.
Distributor shall supply to Xxxxxx such information concerning the terms and
conditions of the proposed sale as Xxxxxx may reasonably require. Xxxxxx'x
approval of the proposed sale shall not be unreasonably withheld. If Xxxxxx
approves the proposed sale, such approval shall be effective only for a
period of sixty (60) days (unless extended by Xxxxxx) and thereafter shall be
null and void. Distributor shall promptly notify Xxxxxx of the consummation
of any such approved sale.
(iii) If Xxxxxx disapproves of the proposed sale, Xxxxxx shall so
notify Distributor and Xxxxxx then shall have the right, but not the
obligation, to make the purchase at the same price and terms which
Distributor has agreed upon with the proposed
Page 5 Exhibit 10.6
purchaser; provided, however, that Xxxxxx shall not exercise this right if
the terms applicable to the proposed sale have not been negotiated and agreed
to between Distributor and the proposed purchaser on an arm's-length basis.
Xxxxxx may exercise its right to purchase under this subparagraph by giving
written notice to Distributor within sixty (60) days after Xxxxxx'x
disapproval of the proposed sale. If Xxxxxx elects to exercise this option,
Distributor agrees to execute promptly all documents reasonably required to
transfer Distributor's business to Xxxxxx.
(c) Except as provided in subparagraph (a) above, there shall be no
change in the control of Distributor's business unless Distributor shall have
obtained Xxxxxx'x prior written approval. As used herein, "a change in the
control of Distributor's business" means any change in ownership interests,
whether by one transaction or by the cumulative effect of several
transactions with the same or different parties, which has the legal or
practical effect of transferring the power to determine Distributor's
business policies. Such a change in control shall include, but not be
limited to, any sale, transfer, change of ownership or other disposition in
either the record or beneficial ownership of the following: (i) 10 percent or
more of Distributor's voting stock; (ii) if Distributor is not incorporated,
a 10 percent or more interest in Distributor's business; (iii) 10 percent or
more of the voting stock of a corporation which owns 50 percent or more of
Distributor's voting stock; and (iv) a change in the form of business entity
presently used by Distributor (E.G., a change from individual ownership or a
partnership to a corporation). Without Xxxxxx'x prior written approval,
there shall be no grant of stock options, establishment of trusts to hold
stock in Distributor's business, nor execution of any agreement by one or
more owners of Distributor which provides that, under certain circumstances,
the interest of one of them in Distributor shall be sold or purchased by one
or more of the owners. It shall be Distributor's responsibility to notify
all of the owners of Distributor of the provisions of this subparagraph and
to notify Xxxxxx promptly in writing of any sale, transfer, change of
ownership or any other disposition of an ownership interest in Distributor.
(d) Unless Xxxxxx has given its prior written approval:
(i) Neither Distributor nor any corporation which, directly or
indirectly, has an ownership interest in Distributor shall be owned by the
public; and
(ii) There shall be no sale or offering for sale on any stock
exchange over the counter, or on the open market of any securities of
Distributor or securities of any corporation which, directly or indirectly,
has an ownership interest in Distributor.
(e) It shall be Distributor's responsibility to furnish a copy of this
Agreement to any prospective purchaser of any ownership interest in
Distributor.
6. DISTRIBUTOR'S RIGHT TO TERMINATE
Distributor shall have the right to terminate this Agreement at any time
by giving Xxxxxx ninety (90) days' prior written notice. In such event,
Xxxxxx'x sole obligation to Distributor shall be the purchase of
Distributor's inventory pursuant to Paragraph 8(c) below. If Distributor
ceases business operations with respect to Xxxxxx products, Distributor
Page 6 Exhibit 10.6
shall be considered to have terminated this Agreement, effective as of the
date operations cease.
7. XXXXXX'X TERMINATION RIGHTS
(a) (i) Except as provided in subparagraph (b) below, Xxxxxx may at any
time initiate termination in accordance with the procedures specified in
this subparagraph if Distributor fails to comply with any commitment or
undertaking stated in its application or with any of the obligations set
forth in Paragraph 4 of this Agreement. Xxxxxx shall initiate such
termination by providing written notice to Distributor which shall state
the nature of Distributor's noncompliance. Subject to extensions granted
at Xxxxxx'x sole discretion, Distributor shall then have thirty (30) days
in which to submit a plan of corrective action and an additional sixty (60)
days to cure such noncompliance in accordance with such plan. If
Distributor fails to cure on a timely basis, Xxxxxx shall have the right to
terminate this Agreement immediately upon written notice.
(ii) Upon such termination, the execution of a general release of
all claims, of whatever nature, which Distributor may have against Xxxxxx,
Xxxxxx shall pay Distributor twice the Distributor's pre-tax net income
attributable to sale of Xxxxxx products for Distributor's most recently
completed fiscal year. "Pre-tax net income" shall mean the proceeds realized
from the sale of Xxxxxx products during Distributor's most recently completed
fiscal year, less all direct and indirect costs and expenses (including
depreciation computed on a straight-line basis, but excluding taxes based on
or measured by income and non-recurring or extraordinary charges or credits)
incurred in the purchase, storage, sale and delivery of such products. This
amount shall be determined in accordance with generally accepted accounting
principles and practices. If the Distributor's business includes two or more
business entities, data for all such entities shall be aggregated, using the
proceeds, costs and expenses of each of such business entities during the
fiscal years ending with or within such Distributor's most recently completed
fiscal year.
(b) If any of the following events occur, Xxxxxx shall have the right to
terminate this Agreement immediately upon giving written notice without any
obligation on Xxxxxx'x part to follow the procedures or to make the
termination payment to Distributor provided for in Paragraph 7(a):
(i) Conviction of Distributor or any of Distributor's owners of a
felony.
(ii) Distributor's fraudulent conduct or substantial
misrepresentation in any of its dealings with Xxxxxx or with others
concerning Xxxxxx products.
(iii) Any significant variation between the financial data
submitted to Xxxxxx in Distributor's application and the actual financial
condition of Distributor as reflected in Distributor's balance sheet at the
time Distributor commences operations under this Agreement.
Page 7 Exhibit 10.6
(iv) Revocation or suspension of any of Distributor's federal,
state or local licenses or permits for more than thirty-one (31) days, if
such license or permit is required for the normal operation of Distributor's
business.
(v) Distributor's insolvency or failure to pay monies due Xxxxxx
in accordance with the terms of sale established by Xxxxxx, Distributor's
assignment or attempt to assign for the benefit of creditors, the institution
of bankruptcy proceedings by or against Distributor, or the dissolution or
liquidation of Distributor.
(vi) Any disposition of Distributor's business, change of control
or attempt to assign this Agreement in violation of Paragraph 5 or 13 of this
Agreement.
(vii) Distributor's violation of the provisions of Paragraph 2 of
this Agreement.
(viii) Distributor's failure to undertake a good-faith effort to
cure noncompliance pursuant to subparagraph (a) of this Paragraph 7.
(c) Xxxxxx shall have the right to terminate this Agreement at any time
by giving Distributor thirty (30) days' written notice, provided that Xxxxxx
contemporaneously gives such notice to all other Distributors throughout the
United States who have executed this form of Agreement. Xxxxxx shall incur
no liability to Distributor by reason of such termination. In the event
Xxxxxx exercises its right under this subparagraph and offers other
distributors the right to enter into a new agreement, Xxxxxx shall offer
Distributor the right to enter into a new agreement upon substantially
similar terms and conditions.
8. POST-TERMINATION PROVISIONS
In the event this Agreement is terminated pursuant to Paragraphs 6, 7(a),
7(b), or Distributor fails to enter into a new agreement pursuant to
Paragraph 7(c) or to execute an amendment pursuant to Paragraph 15(a), the
following provisions shall apply:
(a) Xxxxxx shall have the right to cancel unfilled orders and to stop or
re-route any shipment enroute to Distributor.
(b) Within ten (10) days after such termination, Distributor shall
return to Xxxxxx all property belonging to Xxxxxx in Distributor's possession
or control. Xxxxxx shall not be liable to Distributor for any expenses
incurred by Distributor in connection with such property. If Distributor has
placed a deposit with Xxxxxx on any such property, Xxxxxx shall refund such
deposit to Distributor or credit an equivalent amount to Distributor's
account when such property is returned in the same condition in which it was
delivered by Xxxxxx to Distributor, reasonable wear and tear excepted.
(c) Within ten (10) days after such termination, Distributor shall sell
and Xxxxxx shall purchase Distributor's inventory of Xxxxxx products at a
repurchase price equal to the sum of the following: the net price actually
paid by Distributor to Xxxxxx for the inventory, plus the amount of any taxes
paid by Distributor in connection with purchasing the inventory
Page 8 Exhibit 10.6
from Xxxxxx, plus the cost of transporting the inventory from Xxxxxx to
Distributor's warehouse (minus any freight charges that Distributor would
have incurred in returning empty returnable containers to Xxxxxx), plus a
handling charge to be set from time to time by Xxxxxx. In lieu of paying
such repurchase price, Xxxxxx may, at its election, credit the equivalent
amount to Distributor's account.
9. TERMS OF SALE
(a) The prices charged by Xxxxxx to Distributor shall be the prices
established by Xxxxxx in effect on the date of shipment. Xxxxxx shall inform
Distributor of its prices in writing from time to time, but Xxxxxx shall have
the unlimited right to change prices and to establish other terms of sale at
any time.
(b) All sales by Xxxxxx to Distributor shall be on a cash basis or on
such credit terms as Xxxxxx, in its sole discretion, may establish from time
to time. Xxxxxx shall not be obliged to extend credit to Distributor or to
assist Distributor in securing credit. Xxxxxx'x acceptance of any order from
Distributor is subject to the condition that Distributor's account with
Xxxxxx will, on the date fixed for shipment, permit the shipment of such
order in compliance with whatever credit terms Xxxxxx has established.
Irrespective of any designation by Distributor, Xxxxxx may, in its sole
discretion, apply, reapply or transfer any payments made by or credit due
Distributor against the oldest item of account or indebtedness owed to
Xxxxxx. Regardless of the method of payment, Xxxxxx shall retain a security
interest in products and containers delivered to Distributor until Xxxxxx
receives full payment of all monies owed to Xxxxxx. Upon Xxxxxx'x request,
Distributor shall execute such documents as are necessary to perfect Xxxxxx'x
security interest.
(c) All products and containers which are sold to Distributor shall be
sold F.O.B. brewery. If a sight draft xxxx of lading is used, title and risk
of loss shall pass to Distributor when Xxxxxx delivers the products to the
carrier for shipment to the Distributor.
(d) All kegs and dunnage shall remain the property of Xxxxxx and shall
be returned to Xxxxxx in accordance with Xxxxxx'x instructions.
(e) Distributor shall be responsible for all federal, state and local
sales, use, personal property, inventory and other taxes that may be assessed
against Distributor on any Xxxxxx products or other Xxxxxx property in
Distributor's possession at the time such tax is assessed or determined.
Distributor shall also be responsible for any local, state and federal excise
taxes on the shipment of Xxxxxx products to Distributor to the extent that
such excise taxes are not included in Xxxxxx'x prices.
10. FINANCIAL PLANNING AND REPORTING
(a) Distributor shall furnish to Xxxxxx annually within one hundred and
twenty (120) days after the end of Distributor's fiscal year, year-end
operating and financial statements (including income statements and balance
sheets). All such statements shall be truthful and shall be prepared in
accordance with generally accepted accounting principles.
Page 9 Exhibit 10.6
(b) Distributor shall furnish to Xxxxxx annually, at a time specified by
Xxxxxx, both current and 5-year plans. These plans shall contain such
information regarding the financial conditions or business of Distributor as
Xxxxxx may reasonably request. Distributor shall, at Xxxxxx'x request, meet
with representatives of Xxxxxx to discuss such plans.
(c) Xxxxxx shall have the right, after appropriate notice and at
reasonable intervals, to inspect Distributor's financial, accounting, sales
and inventory records.
(d) Any financial data obtained by Xxxxxx pursuant to this Paragraph
shall be treated by Xxxxxx and its employees as confidential information and
shall not be disclosed to any other party without Distributor's written
consent, unless such disclosure is compelled by a court or governmental
agency and Xxxxxx has provided prior written notice of such disclosure to
Distributor.
11. RIGHTS RESERVED TO XXXXXX
(a) All orders for Xxxxxx products placed by Distributor shall be
subject to Xxxxxx'x acceptance. Xxxxxx shall have the right to specify the
forms and procedures governing the placement of such orders, including, but
not limited to, designation of the source brewery and the routing to be used
for delivery of such orders as are accepted. In the event that Xxxxxx is
restricted in the production, sale or delivery of its products by capacity
limitations, acts of governmental authority, strikes or any other cause,
natural or otherwise, beyond Xxxxxx'x control, Xxxxxx shall not be compelled
to honor previously accepted orders, but shall distribute available products
among distributors in a fair and equitable manner.
(b) Xxxxxx reserves the unqualified right to manage and conduct its
business in all respects and shall be free at all times to maintain or alter
the formula, ingredients, labelling or packaging of its products; to
determine the prices or other terms on which it sells Xxxxxx products; to
produce or sell any particular brands; to discontinue the sale of any of its
products, packages or containers in any geographic area; and to make all
other decisions concerning the conduct of Xxxxxx'x business.
12. XXXXXX TRADE DESIGNATIONS
(a) Distributor hereby acknowledges Xxxxxx'x exclusive ownership and
other rights in the various trademarks, trade names, service marks, trade
dress and other trade designations (collectively "trade designations")
relating to Xxxxxx'x business or products. Xxxxxx hereby grants Distributor
a nonexclusive, non-assignable, non-licensable privilege to use Xxxxxx trade
designations only in a lawful manner and in connection with the distribution,
advertising, display and sale of Xxxxxx products. This privilege shall
terminate upon termination of this Agreement. Such trade designations shall
be used only in manners, forms and contexts specified or approved in writing
by Xxxxxx, and upon Xxxxxx'x request. Distributor shall change or
discontinue the way in which Distributor uses any Xxxxxx trade designation.
Distributor agrees that it shall not manufacture or have manufactured any
merchandise bearing such designations without Xxxxxx'x prior written approval.
Page 10 Exhibit 10.6
(b) Distributor agrees to remove all Xxxxxx trade designations affixed
in any fashion to property owned or controlled by Distributor (including
vehicles, equipment, and office supplies) before leasing, selling or
otherwise transferring such property or control thereof to another person or
before putting such property to any use not connected with the distribution
of Xxxxxx products.
(c) Distributor agrees not to use Xxxxxx trade designations in
Distributor's corporate or business name without Xxxxxx'x prior written
approval. If such approval is given by Xxxxxx, Distributor agrees to
discontinue all such use and formally change any such name at its own expense
immediately upon termination of this Agreement.
(d) If Distributor violates any of the provisions of subparagraphs (a),
(b), or (c) of this Paragraph, Distributor shall reimburse Xxxxxx for all
costs, attorneys' fees, and other expenses incurred by Xxxxxx in any action
for damages or injunctive relief brought pursuant to this Paragraph.
(e) Distributor agrees to notify Xxxxxx of any infringements of Xxxxxx
trade designations that Distributor discovers and to assist Xxxxxx in taking
whatever legal action against such infringement as Xxxxxx, in its sole
discretion, may decide is appropriate. Xxxxxx agrees to bear all expenses
and costs incident to any such action.
13. ASSIGNMENTS
Except as provided in Paragraph 5(a) above, any transfer, sale or
assignment of this Agreement or of any rights or obligations under this
Agreement, in whole or in part, whether by operation of law or otherwise,
shall be null and void, unless Xxxxxx has given its prior written approval.
14. NEW XXXXXX PRODUCTS
This Agreement shall extend only to the brands of Xxxxxx products listed
on the Distributor Data Sheet. Xxxxxx and Distributor may at any time agree
to extend this Agreement to other Xxxxxx products, in which case the names of
such other products shall be entered on the Distributor Data Sheet.
15. AMENDMENTS TO AGREEMENT
(a) Xxxxxx may at any time propose an amendment to this Agreement.
Distributor shall indicate its acceptance of any such amendment by returning
two executed copies thereof to Xxxxxx. The amendment shall become effective
on the date executed by Xxxxxx, which shall retain one executed copy of the
amendment and shall return the other executed copy to Distributor. If
Distributor does not return an executed amendment to Xxxxxx within ninety
(90) days after the proposed amendment is submitted to Distributor, this
Agreement shall immediately terminate without liability to either party, but
only if Xxxxxx has contemporaneously submitted the same proposed amendment to
other distributors who have executed this form of Agreement in all
jurisdictions in which such amendment would be lawful.
Page 11 Exhibit 10.6
(b) The provisions of subparagraph (a) shall not apply to changes to the
Distributor Data Sheet. Distributor shall notify Xxxxxx immediately of any
such changes. Except as otherwise provided in this Agreement, no change in
the Distributor Data Sheet by one party shall alter the other party's rights
or obligations hereunder, unless the other party shall have given its prior
written approval.
16. COMPLIANCE WITH LAW
The illegality or unenforceability of any provision of this Agreement
shall not impair the legality or enforceability of any other provision. The
laws, rules and regulations of the jurisdiction in which Distributor conducts
its business are hereby incorporated in this Agreement to the extent that
such laws, rules and regulations are required to be so incorporated and shall
supersede any conflicting provision of this Agreement. If required by
applicable law, Xxxxxx and Distributor may enter into an amendment of this
Agreement for the sole purpose of complying with such law.
17. NOTICE
All notices that are required or permitted to be given under this
Agreement shall be in writing, duly signed by the party giving such notice,
shall be transmitted either by personal delivery, by prepaid telegram or by
registered or certified mail, with return receipt requested and postage
prepaid, and, depending upon the means of transmittal, shall be effective
when delivered, telegraphed or mailed. Notices shall be addressed: (i) if to
Distributor, to the address of Distributor set forth after Distributor's
signature to this Agreement; or (ii) if to Xxxxxx, to Xxxxxx Brewing Company,
Attention: Vice President-Sales, 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000, with a copy to the Xxxxxx Regional Office that has
responsibility for Distributor's Area. The address of either party may be
changed by notice to the other party given pursuant to this Paragraph.
18. MISCELLANEOUS PROVISIONS.
(a) Prior written approval as used in this Agreement requires a
communication signed by two corporate officers of Xxxxxx.
(b) "Authorized Xxxxxx distributor" as used in this Agreement shall mean
a distributor who is party to a written distributor agreement with Xxxxxx
which is currently in effect.
(c) No representation, promise, inducement or statement of intention
other than those set forth in this Agreement has been made by Xxxxxx or
Distributor and neither party shall be bound by or liable for any other
alleged representation, promise, incurment or statement of intention.
Notwithstanding anything to the contrary in any prior written agreement
between Xxxxxx and Distributor, this Agreement cancels and supersedes all
previous distributor agreements between Xxxxxx and Distributor.
(d) The failure of either Xxxxxx or Distributor at any time or times to
enforce any provision of this Agreement shall in no way be construed as a
waiver of such provision and
Page 12 Exhibit 10.6
shall not affect the right of that party at a later time to enforce each and
every such provision.
(e) Except as specifically provided for in this Agreement, no person,
including any officer, agent or employee of Xxxxxx, has any authority to
amend, modify, waive, supersede or cancel this Agreement or any terms or
provisions of this Agreement. No conduct of any such person shall be
construed to create that authority.
(f) Distributor acknowledges that it is, and shall remain, an
independent business entity. Xxxxxx and Distributor are not joint venturers
or partners, and neither may act as the agent, employee or fiduciary of the
other.
CONTINUED ON PAGE 10
Page 13 Exhibit 10.6
19. ACKNOWLEDGEMENTS
The undersigned, in their personal or representative capacities,
acknowledge that they have read this Agreement in full and have had an
opportunity to review it with counsel; that they understand and agree to each
of the foregoing provisions; and that they are duly authorized to sign the
Agreement.
This Agreement is effective on the 7TH day of APRIL , 19 95 .
-------- ---------------- ----
PEPSI COLA/SEVEN UP BEVERAGE
GROUP OF LOUISIANA
---------------------------------------
Name of Distributor
By Delta Beverage Group Inc.
Managing Venturer
(Sole Proprietorship, Partnership,
Corporation)*
CORPORATE
SEAL By /s/Xxxxxxx X. Xxxxxx (SEAL)
--------------------------------
(President)*
By /s/Xxxx X. Xxxxxxxx (SEAL)
--------------------------------
(Vice President CFO)*
By ________________________________(SEAL)
(Partner)*
By ________________________________(SEAL)
(Partner)*
XXXXXX BREWING COMPANY
By /s/illegible
------------------------------------
[Xxxxxx Brewing Company Seal]
(Title) SECRETARY
CORPORATE ------------------------------
SEAL
By /s/illegible
------------------------------------
(Title) ASST. SECRETARY
Delete inapplicable words beneath signature lines.
In the case of a partnership, all partners must sign.
Page 14 Exhibit 10.6
DISTRIBUTOR DATA SHEET
This Distributor data sheet is a part of the Xxxxxx Brewing Company
Distributor Agreement between the undersigned Distributor (referred to herein
as "DISTRIBUTOR") and the Xxxxxx Brewing Company. Changes in the information
contained herein may be made only in accordance with said Agreement, and must
be promptly brought to the attention of Xxxxxx'x Vice President-Sales with a
copy to your Regional Office. The Distributor Data Sheet is comprised of the
following:
/X/ Schedule I: Ownership Data
/X/ Schedule II: Manager Data
Successor -- Manager Data
/X/ Schedule III: Distributor's Area
/X/ Schedule IV: Xxxxxx Product Listing
Mailing-Shipping Information
Check the appropriate box(s) for the information attached.
On the initial Distributor Data Sheet, all information must be supplied.
Dated this 7TH day of APRIL , 19 95 .
------- ------------- ----
PEPSI COLA/SEVEN UP BEVERAGE
GROUP OF LOUISIANA
---------------------------------------
Name of Distributor
By Delta Beverage Group Inc.
Managing Venturer
(Sole Proprietorship, Partnership,
Corporation)*
CORPORATE
SEAL By /s/Xxxxxxx X. Xxxxxx (SEAL)
--------------------------------
(President)*
By /s/Xxxx X. Xxxxxxxx (SEAL)
--------------------------------
(Vice President CFO)
By ________________________________(SEAL)
(Partner)*
By ________________________________(SEAL)
(Partner)*
Page 15 Exhibit 10.6
XXXXXX BREWING COMPANY
By /s/illegible
------------------------------------
[Xxxxxx Brewing Company Seal]
(Title) SECRETARY
CORPORATE ------------------------------
SEAL
By /s/illegible
------------------------------------
(Title) ASST. SECRETARY
------------------------------
Page 16 Exhibit 10.6
PEPSI-COLA/SEVEN UP
BEVERAGE GROUP OF LA
DISTRIBUTOR DATA SHEET
SCHEDULE I - Page 1
DATE: 4-7-95
-------------------
OWNERSHIP DATA
SOLE TRADER (Name of Owner):
PARTNERSHIP (Name): Pepsi-Cola/Seven-Up Beverage Group of Louisiana
NAMES OF % NAMES OF %
PARTNERS* OWNED PARTNERS OWNED
------------------------------------------------------------------------------
Delta Beverage Group 62%
Poydras Street Investors LLC 38%
*Delta Beverage Group, Inc. is Managing General Partner.
_____
CORPORATION (Name): Pepsi-Cola/Seven-Up Beverage Group of Louisiana
CITY: Harahan
STATE OF INCORPORATION:
NAMES OF SHARES NAMES OF SHARES
STOCKHOLDERS* OWNED STOCKHOLDERS OWNED
------------- ------ ------------ ------
*(All Partners/Stockholders MUST Be Listed)
_____
COMMON PREFERRED
------ ---------
TOTAL SHARES AUTHORIZED:
TOTAL SHARES ISSUED AND
OUTSTANDING:
Page 17 Exhibit 10.6
PEPSI-COLA/SEVEN UP
BEVERAGE GROUP OF LA
DISTRIBUTOR DATA SHEET
SCHEDULE I - Page 2
DATE: 4-7-95
-----------------
CORPORATION (cont'd)
Officer and Directors (The principal officers and principal directors are to
be indicated by an asterisk inserted prior to their name.)
NAME TITLE
---- -----
Xxxxxx X. Xxxxxx Director, Chairman
*Xxxxxx X. Xxxxxx CEO, Director
*Xxxxxxx X. Xxxxxx COO, President
*Xxxx X. Xxxxxxxx CFO, Vice President, Director
Xxxx X. Xxxxxxxx Director
Xxxxxx X. Xxxxxxxxxx Director
Xxxxxx Xxxxxx Director
Xxxxxx X. Xxxxxx Director
Xxxx Xxxx Director
Name and address of person(s) (other than those listed above) having ANY
financial interest whatsoever in Distributor:
NATURE AND EXTENT
NAME ADDRESS OF
---- ------- FINANCIAL INTEREST
------------------
Northwestern Mutual Life 000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
CIGNA 000 Xxxxxxx Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Prudential Life 0000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Great West Life 0000 Xxxx Xxxxxxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Connecticut Mutual 000 Xxxxxx Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Page 18 Exhibit 10.6
Pacific Mutual 000 Xxxxxxx Xxxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
First Chicago Xxx Xxxxx Xxxxxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
First American 0000 Xxxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
PEPSI-COLA/SEVEN UP
BEVERAGE GROUP OF LA
DISTRIBUTOR DATA SHEET
SCHEDULE I - Page 3
DATE: 4-7-95
------------------
OWNERSHIP DATA
If any of the stock of your company is owned by another entity(s) (such as a
corporation or trust), rather than individual stockholders, complete the
following:
Name and address of entity(s) owning or controlling the stock:
Delta Beverage Group, Inc. 0000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Type of entity (corporation, trust, estate, etc.): Corporation, Delaware
Names of all stockholders, trustees, and administrators who own or control the
entity:
NUMBER % OF OWNERSHIP
NAME OF SHARES OR CONTROL
---- --------- ----------
Voting Stockholders
Pohlad Companies(1) 44.9% 17%
Equity Beverage(2) 15.9% 6%
Xxxxxx Industries(3) 15.9% 6%
Arbeit & Co. (4) 20.6% 8%
Xxx Xxxxxx 2.6% 1%
Xxxx Xxxxxxxx .1% Nil
Non-Voting Stockholders:
First Bank System 1%
Norwest Equity Capital, 7%
Inc.
Massachusetts Mutual 12%
Life
Page 19 Exhibit 10.6
Northwestern Mutual 18%
Life
CIGNA and Subsidiaries 16%
Xxxxxx Xxxxxxx Funds 8%
(1) 100% Owned Xxxxx, Xxxxxx and Xxxxxxx Xxxxxx, in equal interests
(2) 100% Owned Pepsi-Cola Bottling
(3) 33% Owned Xxxxx, Xxxxxx and Xxxxxxx Xxxxxx, in equal interests,
67% Owned Xxxxx Xxxxxx
(4) 100% Owned Mr. and Xxx. Xxxxxx Xxxxxxxxxx, in joint interest
Page 20 Exhibit 10.6
PEPSI-COLA/SEVEN UP
BEVERAGE GROUP OF LA
DISTRIBUTOR DATA SHEET
SCHEDULE I - Page 4
DATE: 4-7-95
------------------
OWNERSHIP DATA
If any of the stock of your company is owned by another entity(s) (such as a
corporation or trust), rather than individual stockholders, complete the
following:
Name and address of entity(s) owning or controlling the stock:
Poydras Street Investors LLC 0000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Type of entity (corporation, trust, estate, etc.): Limited Liability Company,
Louisiana
Names of all stockholders, trustees, and administrators who own or control the
entity:
NUMBER % OF OWNERSHIP
NAME OF SHARES OR CONTROL
---- --------- ----------
Xxxxx Xxxxxx Xxxxxxx, Xx. 40%
Xxxx Xxxxx 20%
Xxxxx Xxxxxx Xxxxxxx, Xx. 20%
Xxxxxxxx Xxxxxxx Perry Trust 20%
Page 21 Exhibit 10.6
PEPSI-COLA/SEVEN UP
BEVERAGE GROUP OF LA
DISTRIBUTOR DATA SHEET
SCHEDULE II - Page 1
DATE: 4-7-95
-----------------
MANAGER DATA
Name: XXXXXX X. XXXXX
Home Address: 00 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Date of Birth: 8/30/45 Social Security #: ###-##-####
PRIOR BUSINESS EXPERIENCE:
-------------------------
1991-Present: Executive Vice President & General Manager -- Xxxxxx Brands of
Greater Xxx Xxxxxxx, Xxx Xxxxxxx, Xxxxxxxxx
0000-0000: Executive Vice President -- Shamrock Distributing Company,
Xxxxxxx, Xxxxxxx
0000-0000: President & General Manager -- Xxxx Xxxxx Xxxxxxxxxxxx, Xxxxxxxx,
Xxxxxxx
0000-0000: Partner & Vice President of Sales -- X & X Xxxxxxxxx Xxxxxxxxxxx,
Xxxxxxxxx, Xxxx
0000-0000: Regional Manager -- Xxxxxx Brewing Company, Xxxxxxxxxx, X.X.
0000-0000: Regional Sales Manager -- Xxxxxx Brewing Company, Xxxxxxxxxx,
X.X.
0000-0000: Administrative Assistant to the Director of Field Sales for the
Eastern U.S. -- Xxxxxx Brewing Company, Xxxxxxxxx, Xxxxxxxxx
0000-0000: Major Market Manager -- Xxxxxx Brewing Company, Xxxxx, Xxxxxxxx
0000-0000: Senior Account Executive -- WGTU-TV, Xxxxxxxx Xxxx, Xxxxxxxx
0000-0000: Manager -- Forward Oil Company, Xxxxxxxx, Xxxxxxxx
0000-0000: Teacher/Coach -- Xxxxxxxx-Xxxxxxxx School District, Standish,
Michigan
Page 22 Exhibit 10.6
PEPSI-COLA/SEVEN UP
BEVERAGE GROUP OF LA
DISTRIBUTOR DATA SHEET
SCHEDULE II - Page 2
DATE: 4-7-95
-------------------
SUCCESSOR-MANAGER DATA
Name:
Home Address:
Date of Birth: Social Security #:
Business Address:
Current Position:
RELEVANT PRIOR BUSINESS EXPERIENCE:
FINANCIAL INTEREST IN THE DISTRIBUTOR:
COMMUNITY INVOLVEMENT AND ACTIVITIES:
EDUCATIONAL BACKGROUND:
OTHER FACTORS:
Page 23 Exhibit 10.6
PEPSI-COLA/SEVEN UP
BEVERAGE GROUP OF LA
DISTRIBUTOR DATA SHEET
SCHEDULE III
DATE: 4-7-95
------------------
DISTRIBUTOR'S AREA
"The following geographical area constitutes Distributor's Area as defined
and subject to the limitations set forth in paragraph 2 of the Distributor
Agreement. Such limitations shall include but not be limited to an
obligation by Distributor that it shall not without Xxxxxx'x written consent
to the contrary sell or supply Xxxxxx products to any entity that will
purchase or resell Xxxxxx products for consumption outside of Distributor's
Area, which by way of example and not limitation shall preclude sales to
ships chandlers, foreign bound carrier or vessels and duty free stores."
PEPSI-COLA/SEVEN-UP BEVERAGE GROUP OF LOUISIANA -- Harahan
In the State of Louisiana:
All of the parish of Orleans, the parish of Saint Xxxxxxx, and the parish of
Plaquemines.
All of the parish of Jefferson, except the Grand Isle portion.
Page 24 Exhibit 10.6
PEPSI-COLA/SEVEN UP
BEVERAGE GROUP OF LA
DISTRIBUTOR DATA SHEET
SCHEDULE IV
DATE: 4-7-95
------------------
XXXXXX PRODUCT LISTING
MAILING-SHIPPING INFORMATION
PART I. BRANDS SUBJECT TO AGREEMENT:
Xxxxxx High Life Milwaukee's Best Icehouse
Lite Milwaukee's Best Light Xxxxxx Reserve Velvet
Xxxxxx Genuine Draft Xxxxxxx Xxxx Xxxxx
Xxxxxx Genuine Draft Xxxxxxx Xxxx Light Xxxxxx High Life Ice
Light Sharp's Xxxxxx High Life Light
Lowenbrau Special Xxxxxx Reserve Lite Ice
Lowenbrau Dark Xxxxxx Reserve Amber Lowenbrau Malt Liquor
Magnum Ale Red Dog
PART II. DISTRIBUTORS
Mailing Address Pepsi-Cola/Seven-Up Beverage Group of
Louisiana
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Shipping Address 0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Telephone Number(s) (000) 000-0000
Federal Basic Permit No.
Wholesaler's License No.
Louisiana
Importer's License No.
Other required license numbers (give number and nature):
*If more than one state or jurisdiction is involved, give data for all.
Page 25 Exhibit 10.6
[Xxxxxx Brewing Company Logo]
April 3, 1995
Xx. Xxxx X. Xxxxxxxx
Delta Beverage Group
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Dear Xxxx:
This letter will confirm the understanding of Xxxxxx Brewing Company and
Delta Beverage Group regarding Paragraph 4.(d)(v) of the Distributor
Agreement. Xxxxxx has indefinitely suspended its enforcement of the
requirement in the above cited Paragraph that a distributor's warehouse be
temperature-controlled. Therefore, a failure to maintain a
temperature-controlled warehouse while such requirement is suspended shall
not be construed as a breach of the Distributor Agreement.
Sincerely,
Xxxxxxx X. Xxxx
Director-Distribution Systems
CRT/xxx
Page 25 Exhibit 10.6
