EXHIBIT 4.5
CONFORMED COPY
DISTRIBUTION AGREEMENT DATED AS OF JANUARY 31, 2003, BETWEEN QUILMES
INDUSTRIAL (QUINSA) SOCIETE ANONYME, A LUXEMBOURG CORPORATION ("QUINSA"), AND
COMPANHIA DE BEBIDAS DAS AMERICAS - AMBEV, A BRAZILIAN SOCIEDADE ANONIMA
("AMBEV").
WHEREAS, pursuant to the Share Exchange Agreement dated as of May 1, 2002 (the
"Share Exchange Agreement"), AmBev agreed to distribute all of Quinsa's beer
products in the Territory on terms substantially similar to those provided under
existing distribution agreements with certain other beer producers;
WHEREAS, AmBev and Quinsa recognize that the success of this Distribution
Agreement depends upon the fulfillment of the needs of retailers and consumers
in the Territory, upon the execution of aggressive, sound and ethical marketing
efforts, and upon a conscientious regard for customer service; and
WHEREAS, certain terms used in this Agreement are defined in Section 1 and all
other capitalized terms used herein and not otherwise defined have the meanings
set forth in the Share Exchange Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, AmBev and Quinsa hereby agree as
follows:
I. DEFINITIONS - As used herein, the following terms, which may not be
otherwise defined herein, shall have the meanings specified below (equally
applicable to both the singular and plural forms):
"AFFILIATE" of any Person means another Person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with, such first Person.
"AGREEMENT" shall mean this document, the schedules attached hereto, and any
written addenda that expressly purport to vary or
supplement the terms of this document and are signed by authorized signatories
of both parties;
"BEER" means any fermented alcoholic malt beverage.
"BREWED QUINSA BEER" shall mean the beer designated on Schedule A to this
Distribution Agreement imported, distributed and sold by AmBev hereunder;
"CONFIDENTIAL INFORMATION" refers to confidential, non-public or proprietary
information disclosed by or on behalf of Quinsa to or for the benefit of AmBev,
including information generated by computer and stored on hard disk, floppy
diskettes or any other electronic medium, including, without limitation, any
such information relating to: (i) the Marks and Intellectual Property, (ii)
Brewed Quinsa Beer, (iii) Technical Industrial Information and (iv) any
information covered by the following categories and not by the three categories
aforementioned: Quinsa's or any of its Affiliates' research, strategic plans,
development, product design, engineering data, specifications, processes,
formulations, production operations or techniques, equipment layout, planning,
purchasing, accounting, finance, selling, marketing, market research,
promotional plans, customers, suppliers, and other information of a similar
nature. Confidential Information may include designs, specifications and
know-how in which Quinsa, its Affiliates or their suppliers or subcontractors
have proprietary interests, or with respect to which Quinsa or any of its
Affiliates has an obligation to third parties to maintain in confidence.
Confidential Information also refers to any analyses, compilations and documents
containing any of the information referred to above, whether prepared by the
Parties or others. Notwithstanding the foregoing, Confidential Information shall
not include information which: (a) is widely known in the industry at the time
of disclosure (other than as a result of disclosure by AmBev or its
Representatives); (b) is lawfully in the possession of AmBev prior to its
disclosure, as evidenced by AmBev's written materials; or (c) has been lawfully
obtained by AmBev from a third party or third parties who were not in breach of
any nondisclosure obligation to AmBev or Quinsa or any of Quinsa's Affiliates.
"CONTRACT YEAR" shall mean: (a) for the year 2003, the period commencing on the
Effective Date and ending on December 31, 2003; and (b) for each subsequent year
after 2003, the twelve-month period commencing on January 1 of such year and
ending on December 31 of such year; provided, however, that in the event of
termination of this Distribution Agreement, the Contract Year shall end on the
date of termination.
"CURRENT RATE OF EXCHANGE" means the Brazilian currency/United States dollar
closing midpoint exchange rate as published in the Wall Street Journal newspaper
for the last business day of the accounting period to which it applies.
"EFFECTIVE DATE" means the date upon which this Distribution Agreement is duly
executed by both Parties.
"GOVERNMENTAL ENTITY" means any national, state, local or foreign government or
any court of competent jurisdiction, administrative agency or commission or
other governmental authority or instrumentality, domestic or foreign;
"INTELLECTUAL PROPERTY" means all matters and things involving intellectual
property as the term is used and understood in the trade pertaining to Beer or
the method of manufacture or advertising and promotion of Beer, including, but
not limited to the Marks, Quinsa Recipes, Confidential Information, Technical
Industrial Information as well as any related patents, copyrights (including
copyright rights in the packaging, labeling, ornamentation, advertising and
promotional activities, plans and materials , including any marketing plans, for
Beer) and other related intellectual property rights.
"LICENSED QUINSA BEER" means, to the extent that the board resolution
contemplated by Section 2.1.3 is adopted, Beer produced by or under contract for
AmBev or its Affiliates in the Territory under the Marks designated in Schedule
C pursuant to the terms of this Distribution Agreement.
"MARKS" means all trademarks, service marks or trade names owned by Quinsa and
its Affiliates and used in connection with the production, marketing, importing,
distribution or sale of Beer now or at any time prior to the termination of this
Distribution Agreement, including but not limited to those listed on Schedule C
hereto. In addition, for purposes of Section 4.4, the term "Marks" shall also
include any variations on the Marks, including variations not permitted by this
Distribution Agreement, any marks confusingly similar to the Marks and any
Intellectual Property.
"PARTY" or "PARTIES" means either or both of the signatories of this License
Agreement.
"PERSON" means any individual, firm, corporation, partnership, limited liability
company, trust, joint venture, Governmental Entity or other entity.
"QUINSA RECIPES" means those Beer-related formulae and processes specified by
Quinsa for use by AmBev in connection with the production of Licensed Quinsa
Beer.
"REPRESENTATIVES" of any Person means the Affiliates, directors, officers,
employees, agents, advisors and representatives of such Person.
"TECHNICAL INDUSTRIAL INFORMATION" means the information or data disclosed by or
on behalf of Quinsa to or for the benefit of AmBev and its Affiliates relating
to: (i) the manufacturing processes related to the production of Licensed Quinsa
Beer; and (ii) the Quinsa Recipes; and (iii) in the event Quinsa licenses new
products to AmBev, such new products of Quinsa or its Affiliates' and their
formulation, as soon as commercially marketed by Quinsa or its Affiliates. It is
understood, however, that Technical Industrial Information does not include the
following: (a) information and data which Quinsa or its Affiliates does not have
a right to disclose or the disclosure of which would require the payment of
compensation to a third party; and (b) any other technology used by Quinsa or
its Affiliates in Argentina or elsewhere or held by Quinsa or its Affiliates
under a confidentiality or similar agreement with a third party.
"TERRITORY" means Brazil and any other country or region in which the Parties
hereafter mutually agree to do business together and jointly decide to include
in the definition of Territory
II. DISTRIBUTION
2.1 Importation, Distribution and Sales Rights
2.1.1 Each party understands that all its rights and obligations with respect
to the distribution of Imported Quinsa Beer are fully set forth herein.
2.1.2 Quinsa hereby grants to AmBev, on the terms set out in this
Distribution Agreement and subject to the limitations herein, the exclusive
right to purchase from Quinsa for import into and to distribute, directly or
through its distribution network, Brewed Quinsa Beer under the Marks in the
Territory. Subject to the limitations below (in clause 2.3), Quinsa agrees that
it shall not, directly or through its Affiliates, nor shall it authorize others
besides AmBev or its Affiliates to, produce, purchase, import, distribute and
sell Brewed Quinsa Beer for or within the Territory, or:
(a) appoint any other person, firm or company as a distributor
of the brands listed in Schedule A in the Territory;
(b) supply Brewed Quinsa Beer to any person, firm or company
(other than AmBev or its Affiliates) in the Territory whether for resale,
distribution or other purposes;
2.1.3 At any time during the term of this Distribution Agreement and subject
to a written previous approval of the board of directors of Quinsa, AmBev and
its Affiliates shall have the exclusive right to produce, have produced, bottle,
have bottled, distribute, have distributed, sell and have sold Licensed Quinsa
Beer in the Territory.
2.1.4 All Licensed Quinsa Beer produced by or under contract for AmBev and
its Affiliates for sale in the Territory under the Marks designated on Schedule
C hereto pursuant to this Distribution Agreement shall be in conformance with
the Technical Industrial Information and shall be of a substantially uniform
quality within reasonably designated specifications as determined from time to
time by Quinsa.
2.1.5 Every month during the term of this Distribution Agreement, AmBev, at
AmBev's expense, shall deliver to Quinsa at a specified test facility located in
Argentina, representative product samples of recently produced Licensed Quinsa
Beer from each brewery at which it is produced by or on behalf of AmBev or its
Affiliates, to enable Quinsa to determine compliance with Section 2.1.4. AmBev
shall also supply to Quinsa monthly quality control reports substantially in the
form of Schedule B.
2.1.6 At all reasonable times during normal business hours, upon at least
seventy-two (72) hours prior notice to AmBev, AmBev agrees to permit Quinsa
and/or its duly authorized representatives to (i) visit and inspect any of the
properties or facilities at which Licensed Quinsa Beer or related promotional
items are is produced, bottled, processed, packaged or stored by or for AmBev or
its Affiliates, and (ii) inspect the brewing facilities, brewing procedures,
brewing laboratories, packaging and storage and quality control procedures
relating to Licensed Quinsa Beer. AmBev will fully cooperate with Quinsa with
respect to such inspection and will keep Quinsa advised of each location at
which the activities related to the production, bottling, distribution,
marketing, or sale of Licensed Quinsa Beer, are taking place.
2.1.7 Permitted Breweries. Prior to the commencement of commercial brewing of
Licensed Quinsa Beer at a brewery, AmBev shall obtain Quinsa's written approval
of the brewery as a brewery for the
production of Licensed Quinsa Beer, except that AmBev shall have the right to
brew Licensed Quinsa Beer at any brewery owned or operated by AmBev as of the
date of this Distribution Agreement for so long as the relevant brewery
continues to be owned or operated by AmBev. In the exercise of its approval
right, Quinsa may require, as a condition for such approval, modifications to
each brewery at which Licensed Quinsa Beer is to be brewed and at related
storage facilities. Further, with respect to each brewery at which Licensed
Quinsa Beer is to be brewed, AmBev (after consultation with, and inspection by,
Quinsa) will conduct or cause to be conducted commercial scale brew tests of the
particular Licensed Quinsa Beer to be produced at that brewery.
2.2 Territory
2.2.1 AmBev shall insure that neither it nor any of its Affiliates will,
except as Quinsa may otherwise agree in writing:
(a) actively seek customers, or actively solicit orders, or
establish any branch or maintain any distribution depot for Brewed Quinsa Beer
or Licensed Quinsa Beer outside the Territory; nor
(b) fill any order for Brewed Quinsa Beer or Licensed Quinsa
Beer for delivery outside of the Territory (or where it has reason to know or
reasonably should know that the purchaser intends to, directly or indirectly,
distribute the Brewed Quinsa Beer or Licensed Quinsa Beer outside the
Territory).
2.2 Exclusive Rights
2.2.1 Quinsa agrees not to produce, sell or distribute, directly or
indirectly, in the Territory any brand of beer owned by or licensed to Quinsa or
its Affiliates during the Distribution Agreement term except through AmBev.
2.3 Licensed Quinsa Beer Ingredients.
2.3.1 Quinsa will sell to AmBev, and AmBev will purchase only from Quinsa (or
its designee), the culture yeast needed for the production of Licensed Quinsa
Beer pursuant to this Distribution Agreement.
2.3.2 Culture yeast purchased by AmBev from Quinsa (or its designee) shall be
handled as prescribed by Quinsa. AmBev shall not propagate, or permit any other
Person to propagate, such culture
yeast (other than in the production of Licensed Quinsa Beer), nor shall AmBev
disclose the details of, or use, or allow any other Person to use, such culture
yeast for any purpose other than the production of the Licensed Quinsa Beer in
accordance with the terms of this Distribution Agreement. AmBev shall not sell,
transfer or deliver any such culture yeast supplied by Quinsa or its designee to
any Person other |than Quinsa or a Person designated by Quinsa (or otherwise
permit any such other Person to obtain the same) without the prior written
consent of Quinsa.
2.3.3 All sales of culture yeast by Quinsa (or its designee) to AmBev for use
in connection with Licensed Quinsa Beer shall be (i) in the event that Quinsa
does not produce such product, at the same price and upon the same terms as
purchases of such product are made by Quinsa from its suppliers, or (ii) in the
event that Quinsa produces such product, at a price equal to Quinsa's cost of
production; provided that AmBev will pay to such suppliers or reimburse Quinsa,
as the case may be, for any incremental costs arising in connection with the
delivery of such product to the facility or facilities at which Licensed Quinsa
Beer is being produced, including but not limited to transportation costs and
any and all import or other taxes. Unless otherwise agreed, the prices shall be
F.O.B. Quinsa's designated facility.
2.3.4 All such payments by AmBev for cultured yeast, unless otherwise
directed by Quinsa, shall be made within sixty (60) days of the appropriate
shipment by Quinsa (or its designee), in U.S. Dollars by such means as are
specified in written instructions to be provided by Quinsa (or its designee)
from time to time. Amounts expressed in a currency other than U.S. Dollars shall
be converted into U.S. Dollars at the exchange rate prevailing on the due date
for such payment.
2.3.5 AmBev shall obtain such licenses and approvals as may be necessary in
connection with the import into and use of the culture yeast supplied by Quinsa
or its designee in the Territory.
2.4 Sales Volume Targets
2.4.1 AmBev shall use its best efforts within the budget agreed to by both
parties for each Contract Year, to achieve in the Territory, for each such
Contract Year, the sales volume targets for Brewed Quinsa Beer or Licensed
Quinsa Beer. Sales volume targets will be fixed in good faith from time to time
by mutual consent of the Parties. However in the event AmBev does not meet the
sales volume target, Quinsa shall have no right to any penalty or
indemnification of any nature against AmBev or its Affiliates relating thereto,
and such fact shall not constitute a just cause to terminate this Distribution
Agreement.
2.4.2 Within thirty days after each Contract Year (or if later when such data
becomes available), the parties shall use X. X. Xxxxxxx data with
respect to on-premise and off-premise volumes in the Territory to determine the
market share of the Brewed Quinsa Beer or Licensed Quinsa Beer for the
Territory. Where the market size has significantly changed from that applicable
in the previous year, the parties shall consider in good faith whether
proportional modifications to the sales volume targets for future years are
appropriate in light thereof.
2.4.3 Certain Acknowledgements.
a) AmBev agrees that nothing in this Distribution Agreement shall
require Quinsa or any of its Affiliates now or at any time during the term of
this Distribution Agreement to:
(i) maintain or alter the formula, ingredients or packaging of
Licensed Quinsa Beer or the container thereof;
(ii) restrict Quinsa's or its Affiliates' production and/or sale of
any brands of Beer other than Licensed Quinsa Beer and/or other products outside
the Territory; or
(iii) restrict its conduct of any other business.
b) AmBev agrees that nothing in this License Agreement shall
permit AmBev to alter the formula, ingredients, packaging or labeling of
Licensed Quinsa Beer.
III. PARTIES' UNDERTAKINGS
3.1 During the term of this Distribution Agreement, AmBev shall:
(a) distribute and sell, directly or indirectly, Brewed Quinsa Beer
throughout the Territory and purchase and import Brewed Quinsa Beer into the
Territory;
(b) to the extent that the board resolution contemplated by Section 2.1.3
is adopted, produce, have produced, bottle, have bottled, distribute, have
distributed, sell and have sold Licensed Quinsa Beer throughout the Territory;
(c) to the extent available and commercially reasonable, obtain and
maintain at all times during the term of this Distribution Agreement and
thereafter for so long as any Brewed Quinsa Beer or Licensed Quinsa Beer remains
in distribution by AmBev, product liability insurance covering its activities
hereunder in amounts and on terms considered reasonable by the AmBev board of
directors from time to time;
(d) obtain such material approvals, licenses and permits as may be required
from time to time under the laws and regulations in the Territory in connection
with the production, bottling, distribution, marketing and sale of Brewed Quinsa
Beer or Licensed Quinsa Beer contemplated by this Distribution Agreement;
(e) maintain, or cause others to maintain at all times, in warehouses that
are suitable for such purposes, an inventory of Brewed Quinsa Beer and, to the
extent that the board resolution contemplated by Section 2.1.3 is adopted,
Licensed Quinsa Beer which it reasonably believes to be sufficient to meet
anticipated demand and;
(f) maintain an appropriate sales and delivery force and a proper system
for recording orders, deliveries and other pertinent matters helpful in the
marketing and distribution of Brewed Quinsa Beer and, to the extent that the
board resolution contemplated by Section 2.1.3 is adopted, Licensed Quinsa Beer
in the Territory (which records shall be available for discussion with Quinsa
representatives during the regular hours of business);
(g) supply Quinsa with regular written reports (on a monthly basis)
describing the sales of Brewed Quinsa Beer in the Territory;
(h) adhere to all conditions that may be reasonably prescribed by Quinsa in
relation to the storage of Brewed Quinsa Beer or Licensed Quinsa Beer including:
(i) ensuring that Brewed Quinsa Beer and Licensed Quinsa Beer that
exceeds the expiration date referred to below is not sold in the marketplace;
(ii) ensuring that all Licensed Quinsa Beer that it produces or has
produced is coded with an appropriate expiration date, such date to be based on
an appropriate period between production and expiration of Licensed Quinsa Beer
to be agreed upon by the Parties promptly after the Effective Date; and
(iii) follow with respect to Brewed Quinsa Beer and Licensed Quinsa
Beer practices and procedures relating to outdated, damaged or otherwise
unmarketable inventory that are consistent with the practices and procedures
followed by AmBev and its Subsidiaries with respect to the AmBev brands in the
Territory.
i) upon the occurrence of any material quality problem, (i) suspend the
production, bottling, distribution, marketing, sale and resale (or cause the
suspension of the production, bottling, distribution,
marketing, sale and resale) of Licensed Quinsa Beer immediately upon discovery
by AmBev of such problem or receipt by AmBev of a request from Quinsa for such
suspension that is reasonable under the prevailing circumstances, (ii) promptly
destroy any product with any such quality problem, and (iii) immediately notify
Quinsa and provide full details pertaining to such event, and provide written
reports and other assistance as may reasonably required by Quinsa in order to
gain information pertaining to the event and to take any other appropriate
action in response thereto;
j) promptly after any general manager of AmBev or its Subsidiaries becomes
aware of or has reason to believe that (i) any of Quinsa's trade secrets, Marks,
Intellectual Property, Technical Industrial Information or other Confidential
Information or details pertaining thereto, or any of the terms, conditions or
other facts contained in this Distribution Agreement or with respect to Licensed
Quinsa Beer, have inadvertently or otherwise been disclosed to or obtained by or
are being used by any unauthorized third party, or (ii) an unauthorized person
has gained access to culture yeast or any other ingredient supplied by Quinsa or
its designee for use in connection with this Distribution Agreement or details
pertaining thereto, immediately notify Quinsa and provide full details
pertaining to such event, and shall provide written reports and other assistance
as may reasonably required by Quinsa in order to gain information pertaining to
the event and to take appropriate action in response thereto; and
k) use its best efforts and fully cooperate with Quinsa in connection with
the registration or obtaining, maintenance and enforcement of Quinsa's or any of
its Affiliate's rights in and to the Marks both inside and outside of the
Territory.
l) to the extent that the board resolution contemplated by Section 2.1.3
is adopted, apply to the production, bottling, distribution, marketing and sale
of Licensed Quinsa Beer, practices, procedures and standards consistent with the
practices, procedures and standards applied by AmBev and its Subsidiaries in
connection with the production, bottling, distribution, marketing and sale of
AmBev's brands;
m) (i) report to Quinsa any non-routine or otherwise material
correspondence or communications that it receives from (x) any Governmental
Entity concerning Brewed Quinsa Beer or Licensed Quinsa Beer, or (y) any other
Person if such correspondence or communications pertain to any claims,
including, without limitation, (A) claims for product liability or infringement
of Intellectual Property, or (B) material consumer complaints that reasonably
would be expected to
(i) result in material legal action against either Quinsa or AmBev, or (ii)
materially adversely affect the reputation of Quinsa or AmBev, or (iii) result
in the disclosure by Quinsa or AmBev of any product defects or the
implementation by Quinsa or AmBev of any product recalls; and (ii) promptly
provide to Quinsa copies of such correspondence or communications;
3.2 During the term of this Distribution Agreement, Quinsa shall
(a) maintain and protect the rights in those Marks as prescribed in Clause
IV below;
(b) provide AmBev with freshness and storage guidelines as well as other
information useful in monitoring and maintaining the quality of Brewed Quinsa
Beer and, to the extent that the board resolution contemplated by Section 2.1.3
is adopted, Licensed Quinsa Beer in the marketplace;
(c) obtain such approvals, licenses and permits as it may require from time
to time under the laws and regulations of the Republic of Argentina in
connection with (i) the exportation of Brewed Quinsa Beer and (ii) to the extent
that the board resolution contemplated by Section 2.1.3 is adopted, the
production, exportation, distribution, marketing and sale of Licensed Quinsa
Beer ingredients referred to in Section 2.3;
(d) ensure that all Brewed Quinsa Beer is exported to Brazil within 30 days
from the date of its production by Quinsa or its Affiliates;
(e) to the extent that the board resolution contemplated by Section 2.1.3
is adopted, provide all necessary formulae, recipes, technical guidelines and
process information to produce Licensed Quinsa Beer in accordance with the terms
of this Distribution Agreement;
(f) to the extent that the board resolution contemplated by Section 2.1.3
is adopted, provide all necessary guidelines regarding packaging materials and
their subsequent changes and improvements in due time to ensure an adequate
chain of supply time to AmBev's production facilities;
(g) conduct Quinsa's business in a manner that will reflect favorably upon
Brewed Quinsa Beer and Licensed Quinsa Beer so as to preserve the goodwill of
retailers and consumer acceptance of Brewed Quinsa Beer and Licensed Quinsa Beer
in the Territory;
IV. Marks
4.1 The Marks and the appurtenant goodwill and Intellectual Property are
the sole property of Quinsa in the Territory and elsewhere. AmBev acknowledges
the validity and enforceability of the Marks and the sole and exclusive
ownership of those Marks and other related Intellectual Property by Quinsa.
AmBev agrees that it shall not, at any time during this Distribution Agreement
or thereafter, challenge said validity or enforceability of the Marks or other
related Intellectual Property for any reason or Quinsa's sole and exclusive
ownership thereof. Any registration of the Marks shall be made in the name and
at the expense of Quinsa or its Affiliates as the sole owner of such Marks and
shall remain the property of Quinsa or its Affiliates. Quinsa shall continue to
be the owner of the Marks in the Territory; provided that, until such time, if
any, as this Distribution Agreement is terminated pursuant to Section 15 hereof,
Quinsa will not take any action with respect to any of the Marks in the
Territory that is inconsistent with, or materially and adversely affects, the
rights of AmBev under this Distribution Agreement.
4.2 Quinsa hereby appoints AmBev as an authorized importer and distributor
for the Territory.
4.3 AmBev hereby agrees that the Marks and the appurtenant goodwill are the
sole property of Quinsa in the Territory and elsewhere.
4.4 AmBev agrees that it will not, by virtue of any of its activities
hereunder, obtain any ownership interest in or title to the Marks, or in any
registrations thereof, and that any uses of such Marks that it makes shall inure
only to the benefit of Quinsa. If by operation of law or otherwise AmBev shall
obtain any ownership interest in or to the Marks, upon written request by
Quinsa, AmBev shall promptly assign such ownership interest in the Marks to
Quinsa or its designee (or if Quinsa so requests, grant a perpetual royalty-free
license to Quinsa or its designee to use the Marks) without charge. Each Party
agrees to sign (at Quinsa's expense) all agreements (and cancellation
agreements) that the other may reasonably require relating to Brewed Quinsa Beer
or Licensed Quinsa Beer in the Territory, provided that the terms of such
agreement shall be consistent with the terms of this Distribution Agreement.
4.5 AmBev shall have no right to take or require any action with respect to
registering or otherwise obtaining, maintaining, or enforcing rights in and to
the Marks, including, without limitation, any action with respect to the
registration of any Xxxx or variation thereon as a trademark, service xxxx,
trade name, business name or internet domain name in any national, state or
local registry established for the
purpose of recording the same, but shall cooperate (at Quinsa's expense) in any
such actions as requested by Quinsa or its designee.
4.6 AmBev agrees that except as permitted herein, during the Distribution
Agreement term and thereafter, it will not (either alone or in concert with
others) use or attempt to register any (i) xxxx confusingly similar to the Marks
or (ii) any label, package or product ornamentation confusingly similar to those
used in connection with Brewed Quinsa Beer or Licensed Quinsa Beer, for any type
of product.
4.7. Trademark Usage. All labels, containers, packaging and materials
bearing a Xxxx shall be of a quality that conforms to the specifications
approved by Quinsa.
4.8. Limitations on License. AmBev shall not, directly or indirectly, use,
or authorize the use of, any of the Marks in connection with the production,
bottling, distribution, marketing, sale or resale of Brewed Quinsa Beer or
Licensed Quinsa Beer that does not meet the requirements of this Distribution
Agreement.
V - PURCHASE PRICE AND PAYMENT
5.1 The price to paid for each order of Brewed Quinsa Beer sold by Quinsa
to AmBev shall be determined such that Quinsa receives a net amount equivalent
to 3% of the Net Revenues (as defined in Section 7.1) of the sales by AmBev and
its Affiliates of Brewed Quinsa Beer, and all importation fees, taxes, duties
and licenses shall be the responsibility of AmBev.
5.2. Purchase price payments to Quinsa for Brewed Quinsa Beer shall be made
within 30 (thirty) days of date of shipment. Such payments shall be made at a
bank selected by Quinsa.
VI - DELIVERY, TITLE, RISK OF LOSS AND TRANSPORTATION
6.1 Brewed Quinsa Beer sold to AmBev shall become the property of AmBev,
with title passing and the risk of loss being assumed by AmBev as it passes the
ship's rail at the port of exit from Argentina.
6.2 Subject to the AmBev complying with such reasonable ordering procedures
as are agreed between the parties, delivery of Brewed Quinsa Beer shall be made
within thirty (30) days of Quinsa's receipt of the relevant order for the same.
Such orders may be cancelled without penalty up to two (2) days prior to
commencement of production pursuant to such order.
6.3 Brewed Quinsa Beer shall be transported and packed for shipment from
the place of manufacture to an Argentine port of exit in a manner mutually
agreed by the parties. Unless otherwise agreed by the parties, Quinsa (or its
designee) shall have responsibility for arranging and paying for the
transportation with respect to the delivery of Brewed Quinsa Beer to the port of
exit in Argentina. AmBev shall be responsible for arranging and paying for the
transportation from the port of exit in Brazil to the port of entry in Brazil.
VII. ROYALTY
7.1 AmBev hereby agrees to pay Quinsa a royalty of 3% (three per cent) of
the Net Revenues AmBev receives due to sales of Licensed Quinsa Beer sold by
AmBev in the Territory. "Net Revenues" shall mean gross revenues due to sales of
Licensed Quinsa Beer by AmBev hereunder, minus any applicable value added or
other recoverable taxes thereon, less sums returned to the customer due to
returns thereof, less sums returned to the customer due to discounts thereon,
less sums of any import goods, parts or components. Where revenues or expenses
are in other than a Brazilian currency, they shall be converted to Brazilian
currency amounts using the exchange rates applicable as of the last business day
of the calendar quarter. Royalties hereunder shall then be paid on a calendar
quarterly basis within fifteen days after each quarter, at the Current Rate of
Exchange.
7.2 Payments under clause 7 shall be made in U.S. Dollars at a bank
selected by Quinsa, and each such payment shall be accompanied by a statement
from AmBev giving explanatory details of sales and computation of royalties as
may be reasonably requested by Quinsa. Records of and relating to royalties due
shall be maintained and retained by AmBev.
7.3 AmBev shall maintain records of all papers, correspondence, proof of
payment, ledgers, books, accounts and other information relating to its services
hereunder or performance hereunder. Quinsa or its designee may inspect, examine
and review such records (and make copies thereof) at any time upon at least five
days' notice during normal business hours during the Distribution Agreement and
for two years thereafter.
7.5 All royalty payments to be made hereunder by AmBev to Quinsa shall be
without deduction of any kind whatsoever, including, but not limited to, taxes,
fees, registration or recording taxes, stamp charges, any other similar
governmental or quasi-governmental charge, or any
setoffs or counterclaims. If AmBev shall pay any taxes on behalf of Quinsa, it
shall obtain official tax receipts evidencing such payment and deliver such
receipts to Quinsa within thirty days after such receipts are made available to
AmBev. In the event that the government of the Territory imposes a withholding
tax, the parties shall, if Quinsa so requests, then promptly negotiate increases
to the royalty rate so that after the withholding tax is applied Quinsa will
thereafter receive from AmBev the amount it would have received if the
withholding tax had not existed. If any taxes, during the term of this
Distribution Agreement, are imposed or required to be withheld from any payment,
AmBev shall (a) increase the amount of such payment so that Quinsa will receive
a net amount (after deduction of all taxes) equal to the amount due hereunder
and (b) pay all taxes to the appropriate taxing authority for the account of
Quinsa and, as promptly as possible thereafter, send Lender an original receipt
showing payment thereof.
VIII. INDEMNIFICATION
8.1 Each Party shall indemnify the other Party and its Representatives
("OTHER INDEMNIFIED PERSONS") from, and shall hold the other party and the Other
Indemnified Persons harmless against all loss, cost, liability, damage or
expense (each, a "LOSS") which may be imposed upon or reasonably incurred by
such other Party or Other Indemnified Person, including reasonable attorney's
fees and disbursements and reasonable settlement payments, in connection with
any claim, action or other proceeding or threat thereof (including fines and
other governmentally imposed charges), made or instituted in which the other
Party or any Other Indemnified Person may be involved by reason of:
In the case of Quinsa:
a) any Loss, including, without limitation, a Loss arising from a product
liability claim, arising out of (i) Ambev's distribution, storage and sale of
Brewed Quinsa Beer, or except where, and only to the extent that, such Loss is
primarily caused by any defect in the Quinsa manufacture or (ii) AmBev's
production, bottling, distribution, marketing, sale and/or resale of Licensed
Quinsa Beer, except where, and only to the extent that, such Loss is primarily
caused by any defect in the Quinsa Recipes;
b) any Loss caused primarily by any advice or determination made by AmBev
under this Distribution Agreement or in connection with the production,
bottling, distribution, marketing, sale and/or resale by AmBev of Brewed Quinsa
Beer or Licensed Quinsa Beer which is knowingly false or misleading; or
c) any tortious act on the part of AmBev.
In the case of Ambev:
a) any Loss, including, without limitation, a Loss arising from a product
liability claim relating to (i) Brewed Quinsa Beer to the extent, but only to
the extent, that such Loss is primarily caused by any defect in the manufacture
or transportation to the port of exit of Argentina by Quinsa, its Affiliates or
any of their assignees, contractors, or vendors of the Brewed Quinsa Beer (ii)
Licensed Quinsa Beer to the extent, but only to the extent, that such Loss is
primarily caused by any defect in the Quinsa Recipes; or
b) any tortious act on the part of Quinsa.
8.2. Notwithstanding anything to the contrary set forth herein, Quinsa shall
have no liability to AmBev for any breach by Quinsa of any provision hereof (a)
to the extent that such breach is solely and directly attributable to any
decision, action, failure to decide or failure to act by any person or persons
who serve as directors of Quinsa and who were nominated or elected, directly or
indirectly, by AmBev or its Affiliates or (b) to the extent that such breach
occurs or continues after the First Stage Closing Date (as defined in the Stock
Purchase Agreement dated May 1, 2002, between Beverage Associates (BAC) Corp., a
British Virgin Islands corporation and AmBev)).
IX. REPRESENTATIONS AND WARRANTIES
9.1 AmBev represents and warrants that:
(a) it has all requisite corporate power and authority to execute and
deliver this Distribution Agreement and to consummate the transactions
contemplated hereby;
(b) AmBev's execution and delivery of, and performance of its obligations
under, this Distribution Agreement has been duly and validly authorized by all
requisite action on the part of the AmBev, and this Distribution Agreement
constitutes a valid and binding obligation of AmBev, enforceable against it in
accordance with its terms, except as enforceability hereof may be limited by any
applicable bankruptcy, reorganization, insolvency or other laws affecting
creditors' rights generally or by general principles of equity;
(c) the execution, delivery and performance by AmBev of this Distribution
Agreement, the consummation of the transactions contemplated hereby and
compliance with the provisions hereof do not (a) violate in any material respect
any constitution, law, statute, treaty, rule, ordinance, permit, certificate,
directive, requirement, regulation or order of any federal, state, municipal, or
other government, governmental department, commission, board, bureau, agency or
instrumentality, or any court or tribunal, to which AmBev or any of its
Subsidiaries or any of its assets is subject, (b) violate any provision of the
memorandum and articles of association and other organizational documents of
AmBev or any of its Subsidiaries, (c) conflict with, result in a material breach
of, constitute a material default under, result in the acceleration of, create
in any party the right to accelerate, terminate, modify or cancel, or require
any notice under any material contract or agreement to which AmBev or any of its
Subsidiaries is a party or by which any of its respective assets is bound or (d)
result in the imposition of any security interest, pledge, lien, bailment (in
the nature of a pledge or for purposes of security), mortgage, deed of trust,
the grant of a power to confess judgment, conditional sale or title retention
agreement (including any lease in the nature thereof), charge, encumbrance,
easement, reservation, restriction, right of first refusal or first offer,
option, commitment or other similar arrangement or interest in real or personal
property, whether oral or written, upon any of the assets of AmBev or any of its
Subsidiaries; and
(d) Other than approvals required by Central Bank of Brazil, INPI (National
Institute of Industry Property) and the Brazilian antitrust authorities, no
approval, authorization, order or consent of, declaration to, or registration or
filing with, any governmental or regulatory authority in the Territory is
required for the valid execution and delivery by it of this Distribution
Agreement, or for the performance of its obligations hereunder and thereunder.
9.2 Quinsa represents and warrants that:
(a) it has all requisite corporate power and authority to execute and
deliver this Distribution Agreement and to consummate the transactions
contemplated hereby;
(b) Quinsa's execution and delivery of, and performance of its obligations
under, this Distribution Agreement has been duly and validly authorized by all
requisite action on the part of Quinsa, and this Distribution Agreement
constitutes a valid and binding obligation of Quinsa, enforceable against it in
accordance with their terms, except as enforceability thereof may be limited by
any applicable bankruptcy,
reorganization, insolvency or other laws affecting creditors' rights generally
or by general principles of equity;
(c) the execution, delivery and performance by Quinsa of this Distribution
Agreement, the consummation of the transactions contemplated hereby and thereby
and compliance with the provisions hereof do not (a) violate in any material
respect any constitution, law, statute, treaty, rule, ordinance, permit,
certificate, directive, requirement, regulation or order of any federal, state,
municipal, or other government, governmental department, commission, board,
bureau, agency or instrumentality, or any court or tribunal, to which the Quinsa
or any of its Subsidiaries or any of its assets is subject, (b) violate any
provision of the memorandum and articles of association and other organizational
documents of Quinsa or any of its Subsidiaries, or (c) result in the imposition
of any security interest, pledge, lien, bailment (in the nature of a pledge or
for purposes of security), mortgage, deed of trust, the grant of a power to
confess judgment, conditional sale or title retention agreement (including any
lease in the nature thereof), charge, encumbrance, easement, reservation,
restriction, right of first refusal or first offer, option, commitment or other
similar arrangement or interest in real or personal property, whether oral or
written, upon any of the assets of Quinsa or any of its Subsidiaries; and
(d) it has all material permits and licenses necessary to perform its
obligations pursuant to this Distribution Agreement as in existence on the date
hereof.
(e) no approval, authorization, order or consent of, declaration to, or
registration or filing with, any governmental or regulatory authority in the
Territory is required for the valid execution and delivery by it of this
Distribution Agreement to which it is a party, or for the performance of its
obligations hereunder and thereunder.
X. COMPLAINT PROCEDURES
10.1 AmBev shall promptly notify Quinsa of any complaints and/or litigation
relating to the Brewed Quinsa Beer or Licensed Quinsa Beer, and where such
complaint or litigation may reflect unfavorably on the reputation of Brewed
Quinsa Beer or Licensed Quinsa Beer shall afford to Quinsa (at its expense)
reasonable facilities to investigate the same.
XI. MARKETING
11.1 AmBev shall, after consultation with Quinsa, develop, and present to
the Quinsa board or directors for approval, the overall policies regarding brand
positioning of Brewed Quinsa Beer and Licensed Quinsa Beer including, without
limitation, the policies and strategies relating to image, class and target
price and shall determine the fit and placement of Brewed Quinsa Beer and
Licensed Quinsa Beer within AmBev's brand portfolio. Such overall policies and
strategies must be consistent with Quinsa's policies and strategies for Brewed
Quinsa Beer and Licensed Quinsa Beer outside the Territory.
11.2 Advertising Materials
11.2.1 The Parties agree to use their best efforts to insure that all
promotional, marketing and advertising activities, plans and materials involving
the use of the Marks as contemplated herein:
(a) are truthful and in accordance with recognized
standards of commercial ethics;
(b) are in good taste;
(c) do not disparage or impair the Marks, Quinsa and its
Affiliates, AmBev and its Affiliates or Brewed Quinsa
Beer or Licensed Quinsa Beer sold in connection
therewith;
(d) do not knowingly undermine or damage any of the
overall marketing strategies developed by Quinsa (in
particular but without limitation product positioning
and brand image strategies); and
11.2.2 AmBev agrees not to use, in connection with the sale or distribution of
Brewed Quinsa Beer or Licensed Quinsa Beer, any marketing, advertising or
promotional material or program unless such material or program has been
approved by Quinsa. All electronic communications materials or programs
involving Brewed Quinsa Beer or Licensed Quinsa Beer shall be submitted to
Quinsa for approval at each stage of development and production of such material
or program (i.e., briefing, copy and offline) prior to use by AmBev, such
approval rights to be exercised by Quinsa in good faith.
11.3 Advertising
11.3.1 Quinsa shall use reasonable efforts to make available to AmBev samples
of its advertising which have been publicly used in Argentina for
advertising Brewed Quinsa Beer and Licensed Quinsa Beer for adaptation by AmBev,
at its expense, during this Distribution Agreement to advertise Brewed Quinsa
Beer and Licensed Quinsa Beer in the Territory. In connection with such
activities, AmBev shall take all precautions necessary to protect Quinsa's
copyrights in Quinsa's advertising, including using appropriate international
copyright notices. For the avoidance of doubt, all advertising expenses for
Brewed Quinsa Beer and Licensed Quinsa Beer hereunder shall be paid by Ambev.
XII. CONFIDENTIALITY
12.1 Confidential Information. AmBev acknowledges that Quinsa, during the
term of this Distribution Agreement, may make available to AmBev directly or to
its Representatives certain Confidential Information.
12.2 Ownership of Confidential Information. All Confidential Information
shall remain the sole property of Quinsa. AmBev shall not obtain any
intellectual property rights in, nor have the right to use, except as stated
herein, any such Confidential Information disclosed to it by or on behalf of
Quinsa.
12.3 Treatment of Confidential Information. AmBev shall use the Confidential
Information solely in connection with the performance of its obligations and the
exercise of its rights under this Distribution Agreement, and except as set
forth in Section 12.4, will not, without Quinsa's prior written consent,
disclose the Confidential Information to any Person directly or indirectly,
other than its Representatives who need to know such information in connection
with performance by AmBev of its obligations or the exercise by Ambev of its
rights hereunder; provided that AmBev will advise its Representatives of the
terms of this Section 12 and, if such Representatives are external advisors or
agents, will further require such Representatives to acknowledge, in a manner
acceptable to Quinsa, the confidentiality of the Confidential Information. AmBev
will be responsible for any breach of this Section 12 by its Representatives.
Upon any termination of this Distribution Agreement, AmBev shall return to
Quinsa all of Quinsa's Confidential Information, including all magnetic,
computer-resident and other electronic data, photostatic, or other copies, or
derivatives thereof, provided pursuant to this Distribution Agreement. All other
analyses, compilations and documents containing or reflecting any of the
Confidential Information prepared by or on behalf of AmBev shall be destroyed,
such destruction to be confirmed in writing.
12.4 Disclosure Due to Requirements of Law. In the event that AmBev is
legally compelled, requested or required (by legal, administrative, or similar
process, including but not limited to oral questions, interrogatories, requests
for information or documents in legal proceedings, subpoena, civil investigative
demand or other similar process) to disclose to any third party any of the
Confidential Information, it shall provide Quinsa with prompt written notice of
any such request or requirement so that Quinsa may seek a protective order or
other appropriate remedy and/or waive compliance with the provisions of this
Distribution Agreement. If in the absence of a protective order or other remedy
or the receipt from Quinsa of a waiver, AmBev is nonetheless legally compelled,
as evidenced by receipt by Quinsa of a written opinion of legal counsel to AmBev
reasonably acceptable to Quinsa, to so disclose Confidential Information
(including to any tribunal or administrative agency), AmBev may, without
liability hereunder, so disclose to the third party (including a tribunal or
administrative agency) only that portion of the Confidential Information which
such counsel advises is legally required to be disclosed, and will exercise its
best efforts to preserve the confidentiality of the Confidential Information,
including, without limitation, by cooperating with Quinsa to obtain an
appropriate protective order or other reliable assurance that confidential
treatment will be accorded to the Confidential Information (including by such
tribunal or administrative agency).
12.5 Specific Performance. It is further understood and agreed that money
damages would not be a sufficient remedy for any breach of this Section 12 by
AmBev and that, with respect only to AmBev's confidentiality obligations under
this Section 12, Quinsa, subject to applicable law, shall be entitled to
equitable relief, including, without limitation, provisional or injunctive
relief, and/or specific performance, as a remedy for any such breach. Such
remedies shall not be deemed to be the exclusive remedies for a breach by AmBev
of this Section 12, but shall be in addition to all other remedies available at
law to Quinsa. AmBev agrees not to oppose the granting of such equitable relief
on the ground that an adequate remedy exists at law, and to waive, and to cause
its Representatives to waive, any requirement for the securing or posting of any
bond in connection with such remedy. In the event of litigation relating to this
Section 12, if AmBev has breached a provision of this Section 12, then AmBev
shall be liable and shall pay to Quinsa the reasonable legal fees and any other
expenses, in U.S. Dollars, that Quinsa has incurred in connection with such
litigation, including any appeal therefrom. Amounts expressed in a currency
other than U.S. Dollars shall be converted into U.S. Dollars at the exchange
rate prevailing on the due date for such payment.
XIII. FORCE MAJEURE
13.1 The failure of a Party to perform any of its obligations under this
Distribution Agreement, if caused by acts of God or the public enemy, fire,
explosion, perils of the sea, flood, drought, war, riots, hostilities not
amounting to war, sabotage, accident, embargo, government priority, requisition
or allocation, or other action of any government authority, or by interruption
of or delay in transportation, shortage or failure of supply of materials or
equipment from normal sources for manufacture of the products specified herein,
labor strikes, or by compliance with any order or request of any government or
any officer, department, agency, or committee thereof, or any other
circumstances of like character beyond the reasonable control of that Party
("FORCE MAJEURE"), shall not subject that Party to any liability to the other.
Upon the occurrence of any event of Force Majeure, the Parties shall use their
respective best efforts to minimize the effects of such event and to overcome
such event as soon as practicable. In the event that this Distribution Agreement
is terminated by Quinsa pursuant to Section 15.2.d), then (i) Quinsa shall enter
into such other arrangements with AmBev as AmBev may reasonably request in order
to permit AmBev to continue to obtain the benefits of, and to assume its
obligations under, this Distribution Agreement and (ii) immediately upon
elimination or termination of the circumstances giving rise to such event of
Force Majeure, this Distribution Agreement automatically shall be reinstated and
each Party shall execute and deliver such documents as the other Party may
reasonably request to evidence such reinstatement. If there should occur an
event of Force Majeure and this Distribution Agreement remains in effect, Quinsa
shall have the right to supply Brewed Quinsa Beer and Licensed Quinsa Beer to
existing customers in the Territory; provided that Quinsa shall use its best
efforts to provide to AmBev the economic benefit of such sales of Brewed Quinsa
Beer and Licensed Quinsa Beer and AmBev shall use its best efforts to reimburse
Quinsa for any costs of such sales that were borne by Quinsa but that, in the
absence of such event of Force Majeure, would have been borne by AmBev under the
terms of this Distribution Agreement.
XIV. RELATIONSHIP OF PARTIES
14.1 Nothing herein shall authorize either party to act as an agent for the
other, or to make representations on behalf of the other, nor bind the other in
any manner whatsoever. Nothing in this Distribution Agreement shall be deemed to
create a partnership between the parties.
XV. TERM AND TERMINATION
15.1 Term of Distribution Agreement
15.1.1 Upon execution by both parties, this Distribution Agreement shall be
deemed effective and shall remain in force through December 31, 2013, renewable
for an additional period of 10 years upon agreement of both parties unless
terminated earlier as provided below.
15.2 Termination
15.2.1 This Distribution Agreement may be terminated with immediate effect at
either party's sole discretion upon the occurrence of any of the following
events, any of which both parties agree constitutes good and just cause for
termination:
(a) to the maximum extent permitted by applicable law, where any action,
application or proceeding is taken by the other party for a voluntary
arrangement or composition or restructuring of its debts; the presentation of an
administrative petition; its winding up or dissolution; the appointment of a
liquidator, trustee, receiver, administrative receiver or similar officers; a
petition for a bankruptcy order or an application for a voluntary arrangement;
or
(b) the other party is unable to pay its debts when due;
(c) there is a material default, breach or failure of the other party to
perform any term of this Distribution Agreement which is not cured within thirty
days after such party receives notice of default, breach or failure from the
aggrieved party; or
(d) subject to Section 13.1, by either Party in the event a circumstance of
Force Majeure causes the continuous interruption of (i) any of the import,
distribution, or sale of Brewed Quinsa Beer or (ii) to the extent that the board
resolution contemplated by Section 2.1.3 is adopted, any of the production,
bottling, distribution, or sale of Licensed Quinsa Beer by AmBev contemplated by
this Distribution Agreement for a period of twelve (12) consecutive months.
15.2.3 Other than as a result of a change in control of Quinsa that is the
result of the Exchange (as defined in Section 1.04 of the Stock Purchase
Agreement), this Distribution Agreement may also be terminated at a party's sole
discretion upon giving at least sixty days
written notice to the other party if there is a change of ownership of the other
party (or any Affiliate of the other party) which results in a change of control
of the other party which the first party deems in good faith adverse to its
interest. Within thirty days of any such change, the other party will provide
the first party with written notice as to the details of the change.
15.2.4 This Distribution Agreement may also be terminated at a party's sole
discretion upon giving at least sixty days' written notice to the other party if
there is an adverse communication by a governmental authority of the Territory
indicating that the present form of the Distribution Agreement is unlawful.
15.3 Purchase Of Inventory
(a) If this Distribution Agreement is terminated, then, subject to Section
13.1, AmBev will promptly sell and deliver to Quinsa (or Quinsa's designee), and
Quinsa will purchase (or cause to be purchased by its designee) from AmBev,
AmBev's inventory of applicable culture yeast purchased from Quinsa or its
designee and, if Quinsa so requests in writing within thirty (30) days of such
termination, AmBev will promptly sell and deliver to Quinsa (or Quinsa's
designee) and Quinsa will purchase (or cause to be purchased by its designee)
from AmBev the inventory of Brewed Quinsa Beer and Licensed Quinsa Beer which is
still in AmBev's possession on the date of such request and which AmBev has not
yet sold or committed to a third party as of the date of such request.
(b) The purchase price for such products shall be the cost to AmBev of
purchasing or producing such products plus government taxes and duties,
transportation and other expenses, if any, paid or incurred by AmBev thereon
which are not refundable to AmBev (as advised in writing by Ambev to Quinsa).
Quinsa shall be obligated to purchase only such products as are of marketable or
usable quality and shall not purchase any out-of-date products or products that
have an expiration date occurring within the following thirty (30) days. To the
extent that Quinsa does not purchase any inventory of Brewed Quinsa Beer or
Licensed Quinsa Beer, AmBev shall retain the non-exclusive right to sell, in the
Territory, for a period of ninety (90) days following the date of termination of
this Distribution Agreement, all Licensed Quinsa Beer produced prior to the
termination of this Distribution Agreement and all Licensed Quinsa Beer in
process that was finalized after the termination of this Distribution Agreement
as contemplated by this Section 15.3.b). All Licensed Quinsa Beer in process as
of the date of any termination of this Distribution Agreement will be finalized
and bottled and shall be
incorporated as part of the inventory to be purchased by Quinsa or sold by
AmBev, as the case may be, in accordance with the terms of this Distribution
Agreement.
15.4. Effect of Termination.
15.4.1 If this Distribution Agreement is terminated, then, subject to Sections
13.1 and 15.3, AmBev's right to produce Licensed Quinsa Beer shall be
automatically and immediately terminated. Promptly after such termination,
subject to Sections 13.1 and 15.3, (i) at Quinsa's option, AmBev shall resell to
Quinsa and Quinsa shall purchase from AmBev at cost any cultured yeast purchased
from Quinsa hereunder, or AmBev shall destroy such cultured yeast at Quinsa's
expense and Quinsa shall reimburse AmBev for the cost thereof previously paid by
AmBev, and (ii) AmBev shall not use or make any reference to the Marks, nor use
any label, package, promotional item, or product ornamentation with respect to
the sale of any product of any kind whatsoever that is confusingly similar to
the labels, packages, promotional items, or product ornamentation used in
connection with Brewed Quinsa Beer or Licensed Quinsa Beer. Subject to Sections
13.1 and 15.3, upon termination of this Distribution Agreement, (i) all rights
granted to AmBev to use the Marks shall terminate immediately and AmBev agrees
that it shall make no further use of the Marks; (ii) AmBev shall return to
Quinsa all Technical Industrial Information, as well as all unused labeling,
packaging, product ornamentation, advertising, promotional items and the like
bearing any of the Marks; and (iii) AmBev shall take whatever action may
reasonably be requested by Quinsa to confirm that all rights to use the Marks
have reverted to Quinsa or its designee, including, where appropriate, the
execution of such assignments and confirmatory documents as may be reasonably
requested by Quinsa. In addition, subject to Sections 13.1 and 15.3, AmBev shall
return to Quinsa all Confidential Information as required pursuant to Section
12.3, and not thereafter use any Confidential Information. Subject to Sections
13.1 and 15.3, Quinsa shall be entitled to take all steps necessary for the
removal of the name of AmBev as an authorized user of the Marks from all
governmental registries, if applicable, without opposition or hindrance from
AmBev, and AmBev shall cooperate by signing all necessary documentation
submitted by Quinsa and taking all necessary action to this effect.
15.5 Survival of Certain Obligations
Upon termination of this Distribution Agreement in accordance with its
terms, the rights and obligations of the Parties to each other hereunder shall
terminate and all unfilled orders shall be deemed canceled; provided that:
a) the provisions of Sections 4, 3.1 (c), 8.1, 12.2 through 12.5, 13.1,
15.4, 15.5, 16.1, 17.1 and 18.1 through 18.7 shall survive such termination;
b) any and all rights as to which a Party shall have provided written
notice to the other Party prior to such termination (including in respect of
alleged breaches of representations or covenants herein) shall survive.
XVI. NOTICES
16.1 All notices or other communications required or permitted to be given
hereunder shall be in writing and shall be delivered by hand or sent by fax or
sent, postage prepaid, by registered, certified or express mail or overnight
courier service and shall be deemed given when so delivered by hand or fax, or
if mailed, three days after mailing (one business day in the case of express
mail or overnight courier service), as follows:
(i) if to Quinsa,
Xxxxxxxx General Xxxxx 667
Buenos Aires, Argentina, 1038
Attention: Chief Executive Officer
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000,
Attention: Xxxxx Xxxx; and
(ii) if to AmBev,
Companhia de Bebidas das Americas -- AmBev
Rua Xx. Xxxxxx Xxxx xx Xxxxxx, n (degree)1.017,
3(degree)andar cjs. 31 e 32
04530-000 Sao Paulo, SP
Brazil
Attention: Chief Financial Officer
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
The address or number at which a party is to receive such notices may be changed
by that party by notice to the other party given as herein provided.
XVII. GOVERNING LAW.
17.1 Governing Law. This Distribution Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State.
XVIII. MISCELLANEOUS PROVISIONS
18.1 All Agreements Incorporated Herein; Amendments; Waivers
This Distribution Agreement sets forth the entire agreement and
understanding of the parties with respect to this subject matter, and supersedes
all prior agreements, arrangements, and understandings between them relating to
the subject matter hereof. No representation, promise, inducement or statement
of intention has been made by Quinsa or AmBev which is not set forth in this
Distribution Agreement, and neither Quinsa nor AmBev shall be bound by or liable
for any alleged representation, promise, inducement or statement of intention
not so set forth in this Distribution Agreement. This Distribution Agreement may
be amended, modified, or superseded only by a written agreement signed by both
parties. The failure of a party at any time or times to require the performance
of any provision hereof shall not affect the right of such party to require
performance of the same at a later date.
18.2 Severability. If any provision of this License Agreement (or any
portion thereof) or the application of any such provision (or any portion
thereof) to any Person or circumstance shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof (or the remaining portion thereof) or the application of such provision
to any other persons or circumstances.
18.3 Assignment. Neither Party may assign this Distribution Agreement or any
of its rights or obligations hereunder to any Person without the prior written
consent of the other Party, and any assignment without such consent of the other
Party shall be void; except that each Party shall have the unrestricted right to
assign this Distribution Agreement to any of its Affiliates without the prior
written consent of the other Party, provided that no such assignment shall
relieve the assigning Party of its obligations hereunder.
18.4 No Waiver. No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or future exercise thereof
or the exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
18.4 Further Assurances. Each party agrees to do all acts and things and to
make, execute and deliver such further written instruments, as may from time to
time be reasonably required to carry out the terms and provisions of this
Distribution Agreement.
18.5 No Agency. No provision of this Distribution Agreement shall be
construed as authorizing any party to act as an agent for the other, or to make
representations on behalf of the other nor bind any other party in any manner
whatsoever.
18.6 No Third Party Beneficiaries. This Distribution Agreement shall be
binding upon and for the sole benefit of the parties hereto and their respective
legal representatives and permitted successors and assigns and nothing herein
expressed or implied shall give or be construed to give to any Person, other
than the Parties hereto and such legal representatives and permitted successors
and assigns, any legal or equitable rights hereunder.
18.7. Arbitration.
a) Any and all differences, controversies and disputes of any nature
whatsoever arising out of or relating to this Distribution Agreement, including
without limitation any dispute relating to its validity, interpretation,
performance or termination, shall be finally settled under the Rules of
Arbitration of the International Chamber of Commerce by three arbitrators
appointed in accordance with said Rules. The arbitration proceedings shall be
conducted in the English language and the seat of the arbitration shall be New
York City. The arbitrators appointed in connection herewith shall be
knowledgeable in the laws of the State of New York and fluent in the English
language.
b) All submissions and awards in relation to arbitration under this
Distribution Agreement shall be made in English, and all arbitration proceedings
and all pleadings shall be in English. Witnesses not fluent in English may give
evidence in their native tongue (with appropriate translation). Original
documents in a language other than English shall be submitted as evidence in
English translation accompanied by the original or true copy thereof.
c) The procedural rules governing arbitration hereunder shall be
established by the arbitrators; provided that (i) each party may call upon the
other party to supply the arbitrators with documents in such other party's
control relevant to the dispute; (ii) each party shall be entitled to present
the oral testimony of witnesses as to fact and expert witnesses; (iii) each
party shall be entitled to question directly any witnesses who present testimony
to the arbitrators; and (iv) at the request of any party, a written transcript
in English shall be made of each hearing before the arbitrators and shall be
furnished to the parties. The arbitrators may, at the request of any party,
order provisional or conservatory measures; provided that to the extent
necessary to prevent irreparable damage any party may petition any court of
competent jurisdiction for a preliminary injunction, temporary restraining order
or other interim equitably relief pending the appointment of the arbitrators in
accordance with Section 18.7.a) and action by the arbitrators upon any request
for provisional or conservatory measures.
d) Each party participating in such arbitration shall pay its own legal
fees and expenses incurred in connection with the arbitration and the expense of
any witness produced by it. The cost of any stenographic record and all
transcripts thereof shall be prorated equally among all parties ordering copies
and shall be paid by the parties directly to the reporting agency. All other
expenses of the arbitration, including required traveling and other expenses and
fees of the arbitrators and the expenses of any witness or the cost of any proof
produced at the request of the arbitrators, shall be borne as determined by the
arbitrators.
e) Any award shall be final and not subject to appeal and the parties
waive all rights to challenge any award of the arbitrators under this Section
18.8. Any award may be entered or presented by any of the parties for
enforcement in any court of competent jurisdiction sitting in New York City, and
the parties hereby consent to the jurisdiction of such court solely for purposes
of enforcement of any award. Each party further agrees that service of any
process, summons, notice or
document in the manner provided for notices in Section 16 shall be effective
service for purposes of any such enforcement action.
18.9 Counterparts. This Distribution Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more such counterparts have been signed
by each of the parties and delivered to the other parties. An executed
counterpart of this Distribution Agreement delivered by fax shall be deemed to
be an original and shall be as effective for all purposes as delivery of a
manually executed counterpart.
18.10 Liability for Representatives. Each Party shall ensure that it, and its
Representatives observe and perform all of such Party's covenants,
representations or warranties set forth in this Distribution Agreement and each
such Party shall, at its sole expense, take all reasonable measures (including
but not limited to court proceedings) to restrain its Representatives from
breaching such covenants, representations or warranties, including, but not
limited to, any prohibited or unauthorized disclosure or use of Confidential
Information.
IN WITNESS WHEREOF, the Parties have executed this Distribution
Agreement as of the day and year first written above.
Quilmes Industrial (Quinsa) Societe Anonyme
Name: /s/ Xxxxxxx-Xxxxx de Montalembert Name: /s/ Xxxxxxx Xxxxxx Xxxxxxxx
Title: Chairman Title: CEO Quinsa
Companhia de Bebidas das Americas - AmBev
Name: /s/ Xxxxxx Xxxxxxxx Xxxxxx Name: /s/ Xxxxxxxx Xxxxxx xx Xxxxxx
Title: Title:
Companhia Brasileira de Bebidas - CBB
Name: /s/ Xxxxxx Xxxxxxxx Xxxxxx Name: /s/ Xxxxxxxx Xxxxxx xx Xxxxxx
Title: Title:
