EXHIBIT 10.4
SUPPLY, DISTRIBUTION, AND LICENSING AGREEMENT
BY AND BETWEEN
CRAFT BRANDS ALLIANCE LLC
AND
REDHOOK ALE BREWERY, INCORPORATED
JULY 1, 2004
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
SUPPLY, DISTRIBUTION, AND LICENSING AGREEMENT
By: CRAFT BRANDS ALLIANCE LLC, an Oregon limited liability company
("Company")
000 X. Xxxxxxx
Xxxxxxxx, Xxxxxx 00000
and: REDHOOK ALE BREWERY, INCORPORATED, a Washington
corporation ("Redhook")
00000 XX 000xx
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Date: July 1, 2004
This Supply, Distribution, and Licensing Agreement
("Agreement") is entered into by and between Redhook and Company effective as of
the date first set forth above.
BACKGROUND
X. Xxxxxx Brothers Brewing Company, an Oregon
corporation ("Xxxxxx") and Redhook are both manufacturers of craft malt
beverages. Xxxxxx and Redhook previously each had a distribution agreement with
Anheuser-Xxxxx Inc. ("ABI") pursuant to which ABI distributed the malt beverage
products of Xxxxxx (collectively, "Xxxxxx Products") and of Redhook
(collectively "Redhook Products").
X. Xxxxxx Products and Redhook Products
(collectively, "Products") have been distributed in the following common states
pursuant to distribution agreements between ABI and each of Xxxxxx and Redhook:
Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, New Mexico,
Nevada, Oregon, Washington, and Wyoming. ABI, Xxxxxx, and Redhook have
determined that it would create certain efficiencies and synergies for Xxxxxx
and Redhook to consolidate certain marketing, advertising, sales, distribution,
and related operations and to jointly distribute their respective products in
the "Territory" (as defined in Section 2 below).
X. Xxxxxx, Redhook, and Company have executed and
delivered or are negotiating the following documents: a Restated Operating
Agreement (the "Operating Agreement") of Company, and other documents described
in the Operating Agreement (collectively, the "Related Agreements"). Pursuant to
the Operating Agreement and certain of the Related Agreements, Xxxxxx and
Redhook will consolidate their advertising, marketing, sales, and distribution
operations for the purpose of allowing Company to advertise, market, sell, and
distribute Products in the Territory. One of the Related Agreements is a Supply,
Distribution, and Licensing Agreement between Company and Xxxxxx pursuant to
which Company advertises, markets, sells, and distributes Xxxxxx Products in the
Territory (the "Xxxxxx Distribution Agreement").
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
D. Redhook and Company desire for Redhook to
manufacture and sell Redhook Products to Company and for Company to market,
advertise, sell, and distribute the Redhook Products in the Territory under the
terms of the Distribution Agreement between ABI and Company (the "ABI
Distribution Agreement").
E. Pursuant to a Licensing Agreement between Redhook
and Xxxxxx dated February 1, 2003 (the "Eastern Distribution Agreement"), Xxxxxx
licensed Redhook the right to manufacture, advertise, market, sell, and
distribute Redhook Products and Xxxxxx Products in the states of Maine, Vermont,
New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania,
Ohio, Maryland, New Jersey, Delaware, West Virginia, Virginia, North Carolina,
South Carolina, Kentucky, Tennessee, Georgia, Alabama, Mississippi, Florida,
Wisconsin, Michigan, Indiana, Illinois, and Washington D.C. The parties do not
intend for the parties rights and obligations under the Eastern Distribution
Agreement to be modified by the terms of this Agreement.
AGREEMENT
Based on the mutual promises set forth below and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Redhook and Company hereby agree as follows:
1. GRANT OF LICENSE.
1.1 GRANT.
1.1.1 Upon the terms and conditions hereinafter set forth, Redhook
hereby grants to Company, and Company hereby accepts (a) a license to use the
trademarks, logos, trade dress, copyrights, promotional slogans, color
combinations, product shapes, and distinctive features in the Redhook Products,
or other intellectual property related to the Redhook Products, including
(without limitation) the intellectual property described on EXHIBIT A, attached
hereto (collectively, the "Intellectual Property"), (b) a non-exclusive license
to use the Intellectual Property in connection with the manufacturing,
packaging, promotion, sale, and distribution of "Merchandise" in the Territory,
and (c) the right to sublicense the Intellectual Property to others as necessary
or convenient to permit Company to perform its obligations under this Agreement.
The Intellectual Property shall include any derivative works related to any
existing Intellectual Property and any Intellectual Property related to any new
Redhook Products, including those Redhook Products added pursuant to Section 3
below.
1.1.2 Company shall not acquire any other right in any of the
Intellectual Property other than as set forth in Section 1.1.1 above. Redhook
shall have the right to require Company and any sublicensee of Company to submit
representative samples of any use of such Intellectual Property to Redhook for
approval, which approval shall be deemed given if Redhook does not provide
Company with written notice of reasonable objection within 10 days of receipt of
such samples. Any and all rights that may be acquired in the Intellectual
Property by the use of the Intellectual Property by Company or any sublicensee
of Company will inure to the sole benefit of Redhook. At the request of Redhook,
Company will execute an instrument, in a form agreeable to Redhook, to effect
further registration, maintenance, and renewal of the Intellectual Property,
and, where applicable, to record Redhook as a registered user of the
Intellectual Property. Company shall promptly notify Redhook of any and all
infringements of the Intellectual Property pertaining to the Products that may
come to Company's attention and shall assist Redhook in taking such action
against said infringements as Redhook, in its sole discretion, may decide.
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
1.1.3 "Merchandise" means all non-beverage products that (a) are
currently manufactured or sold by Redhook, (b) are manufactured or sold by
Redhook in connection with its beverage business in the future, and (c)are
proposed by Company and not rejected by Redhook within 30 days following
Company's submission to Redhook; provided that Redhook may reject such proposed
Merchandise only if Redhook would be permitted to reject such usage pursuant to
Section 1.3 below.
1.2 EXCLUSIVITY.
1.2.1 Except as specifically set forth below, during the term of
this Agreement, Redhook shall not directly or indirectly in the Territory (as
expanded as provided herein) manufacture, advertise, market, sell, or
distribute, whether for itself or for others, any Redhook Product or any other
malt beverage or alcoholic beverage product, whether now existing or later
developed (each, a "Restricted Product"). In the event of a default under this
Section, Company shall be entitled (without limiting any of its other rights and
remedies) to a temporary restraining order, preliminary injunction, and other
injunctive relief, in addition to other available remedies, including damages.
1.2.2 If the Restricted Products are distributed by Company under
this Agreement, the following shall apply:
(a) The restrictions set forth in Section 1.2.1 shall not apply
to Restricted Products to the extent that (i) the Restricted Products are sold
directly to consumers, including (without limitation) Restricted Products sold
on or from the premises of a Redhook brew-pub restaurant (each, a "Redhook
Brew-Pub") or (ii) on or from the premises of a Redhook facility at which
Products are manufactured (each, a "Redhook Plant").
1.2.3 If the Restricted Products are not distributed by Company
under this Agreement (each, a "Non-Distributed Product"), the restrictions set
forth in Section 1.2.1 shall not apply to the extent that:
(a) (i) The Non-Distributed Products are (A) sold only for
consumption in or from the premises of a Redhook Brew-Pub or a Redhook Plant or
(B) sold or distributed in beer competitions, beer festivals, and similar types
of temporary sales events and (ii) The quantity of such Non-Distributed Products
does not exceed 70,000 Product Case Equivalents per calendar year in each of
Redhook's Brew-Pubs and Redhook Plants;
(b) As used in this Agreement, the terms "Product Case
Equivalents" or "PCEs" mean (i) the number of full cases of Products sold in
bottles plus (ii) the number of barrels of Products purchased by Company,
divided by 13.78.
1.2.4 The parties acknowledge that in the state of Washington, (a)
Company will receive orders for Redhook Products from ABI Wholesalers, (b)
Company will assign the orders to Redhook, and (c) the Redhook Products will be
sold and distributed directly by Redhook to ABI Wholesalers located in
Washington. The restrictions set forth in Section 1.2.1 do not apply to Redhook
Products sold to distributors authorized to sell Redhook Products only in the
state of Washington (each, a "Washington Distributor"). Redhook will deliver to
Company each week (on the business day of the week requested by Company) a
written report of each the types and quantities of Redhook Products sold to and
ordered by the Washington Distributors as of the date of such report. As
compensation for the marketing, advertising, and related services provided by
Company with respect to sales made in Washington, Redhook shall pay within 10
days following the end of each calendar month a marketing fee calculated using
the formula set forth on Schedule 1.2.4, attached hereto. At Company's election,
Company may off-set such amount from any amount due Redhook under this
Agreement.
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
1.2.5 Redhook and Company acknowledge that Redhook will continue to
operate its business outside the Territory and such operations may result in
Redhook Products being incidentally advertised in the Territory. The parties
agree that such operations do not violate Redhook's exclusivity obligations
under this Agreement. Such permitted activities include maintaining a website
advertising Redhook's Products (fulfilling its obligations under the Eastern
Distribution Agreement) and buying radio and print advertisements that are not
targeted in the Territory, but may be seen or heard in the Territory.
1.3 QUALITY CONTROL. The nature and quality of all of Company's uses of
the Intellectual Property shall conform to reasonable standards set out by
Redhook from time to time. Such standards shall be consistent with the nature
and quality of the current Redhook Products. Without limiting the foregoing,
Redhook may reject any new Intellectual Property proposed by Company only if
such proposal would have a materially detrimental effect on the value of the
marks or be wholly inconsistent with the current nature and quality of the
existing Intellectual Property.
1.4 RIGHT TO PURCHASE MERCHANDISE. Redhook has an option to purchase any
quantity of Merchandise (utilizing Redhook's Intellectual Property) manufactured
by or for Company at a price equal to Company's direct out-of-pocket cost to
manufacture the Merchandise, plus shipping costs.
2. TERRITORY.
2.1 INITIAL TERRITORY. The "Territory" means the geographic areas in
which Company is authorized to take the actions set forth in Section 1.2 above.
The initial Territory shall be the states of Alaska, Arizona, California,
Colorado, Hawaii, Idaho, Montana, New Mexico, Nevada, Oregon, Washington, and
Wyoming.
2.2 EXPANSION OF TERRITORY. Upon notice to Redhook, Company may, from
time to time at its election and without paying any amount to Redhook or Xxxxxx,
expand the Territory to include one or more of the following states: Arkansas,
Iowa, Kansas, Louisiana, Minnesota, Missouri, Nebraska, North Dakota, Oklahoma,
South Dakota, and Texas. If Company elects to expand the Territory, Redhook and
Company will promptly take all actions necessary to complete such inclusion.
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
3. REDHOOK PRODUCTS.
3.1 INITIAL REDHOOK PRODUCTS. The initial Redhook Products that will be
distributed by Company under this Agreement are set forth on SCHEDULE 3.1
attached hereto.
3.2 ADDITIONAL REDHOOK PRODUCTS.
3.2.1 Company may add additional Redhook Products if it determines
that it is in the best interests of Company to add a new Redhook Product that is
developed by Company or Redhook.
3.2.2 If Company elects to add a new Redhook Product, Company shall
at its expense develop all Intellectual Property related to such Redhook
Product. All such Intellectual Property shall be the property of Redhook
pursuant to Section 7.2 of this Agreement and licensed to Company under the
terms of this Agreement.
3.3 REMOVAL OF REDHOOK PRODUCTS. Company may, in accordance with a then
current Budget and Business Plan (as defined under the Operating Agreement),
elect to discontinue distributing one or more of the Redhook Products (each, a
"Discontinued Redhook Product") upon notice to Redhook if (a) the total volume
of the Discontinued Redhook Product in the immediately preceding calendar year
is less than twenty percent (20%) of the total volume of all Redhook Products
sold in the same calendar year, (b) the volume of Redhook Product sold in the
immediately preceding calendar year is at least ten percent (10%) less than the
sales for the calendar year two years preceding such calendar year; and (c)
Company determines in good faith that it is in the best long-term interests of
Company for a Discontinued Redhook Product to be discontinued. If the volume of
any Discontinued Redhook Product sold in the immediately preceding calendar year
is less than twenty percent (20%), but more than five percent (5%), of the total
volume of all Redhook Products sold in the same calendar year (the "Discontinued
Redhook Product Percentage"), then Redhook may submit the matter to arbitration
as set forth below:
3.3.1 If Redhook disagrees with any decision by Company to
discontinue a Redhook Product with a Discontinued Product Percentage of at least
five percent (5%), Redhook shall notify Company within thirty (30) days of the
date Company notifies Redhook of its decision to discontinue such Discontinued
Redhook Product. If Redhook and Company do not resolve the matter within twenty
(20) days following the written notice by a party to the other party referencing
this Section 3.3, the parties will submit the Dispute to binding arbitration
pursuant to arbitration as provided below:
3.3.2 The arbitration shall be conducted before a single arbitrator
located in Portland, Oregon using a "baseball arbitration" format in accordance
with the rules of the Arbitration Service of Portland, Inc. and judgment on the
award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. The arbitrator shall be acceptable to both parties. If the
parties do not agree within 20 days on an arbitrator, the arbitrator shall be
selected by the Presiding Judge of the Circuit Court of Multnomah County,
Oregon. The arbitrator must determine whether or not the Company is required to
continue to advertise, market, sell, and distribute the subject Discontinued
Redhook Product within 15 days following the date the arbitrator is selected. In
making his or her determination, the arbitrator must select the choice which the
arbitrator determines to be in the best long-term interests of Company. The
arbitrator may not formulate his or her resolution for the Dispute.
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
3.3.3 The party whose proposed resolution of the Dispute is not
selected by the arbitrator shall be responsible for the payment of costs, fees,
and expenses incurred in connection with such arbitration, including reasonable
attorneys' fees and experts' fees of both of the parties in accordance with
Section 16.11 below.
3.4 NON-DISTRIBUTED REDHOOK PRODUCTS. If any Redhook Products are
discontinued pursuant to Section 3.3 above, or are proposed to Company by
Redhook and not accepted, pursuant to Section 3.2 above, for distribution by
Company (collectively, the "Non-Distributed Redhook Products") Redhook may
manufacture the Non-Distributed Redhook Products and may sell Non-Distributed
Redhook Products in the Territory subject to the restrictions set forth in
Sections 1.2 and 1.3 above. From time to time, Company may test any
Non-Distributed Product to determine if it is equal to or greater in quality
than the Redhook Products Company then distributes. If Company determines that a
Non-Distributed Product is not of such quality, Redhook shall cease
manufacturing and selling such Non-Distributed Product until Company reasonably
determines that such quality standards have been met. Company has determined
that the Redhook Products identified on SCHEDULE 3.4, attached hereto, currently
meet such quality standards.
4. MANUFACTURING RIGHTS OF REDHOOK PRODUCTS AND XXXXXX PRODUCTS.
4.1 EXISTING REDHOOK PRODUCTS.
4.1.1 Except as set forth herein, Redhook has the right to
manufacture all existing Redhook Products.
4.1.2 At least thirty (30) days prior to the beginning of each
calendar quarter, Company will provide Redhook with a three-month rolling
forecast (each, a "Three-Month Forecast") of the quantity of each Redhook
Product Company expects to purchase during such three-month period (each a
"3-Month Forecasted Quantity"). Within ten (10) days following Redhook's receipt
of each Three-Month Forecast, Redhook will notify Company (i) if it is unwilling
or unable to manufacture at least 110% of the 3-Month Forecasted Quantity (the
"Required Redhook Quantity") and (ii) the quantity of Redhook Products it is
willing and able to manufacture (the "Promised Redhook Quantity") if such
quantity is less than the Required Redhook Quantity. If Redhook does not so
notify Company, it will be presumed that Redhook is willing and able to
manufacture at least the Required Redhook Quantity. If Redhook notifies Company
that it is unwilling or unable to manufacture the Required Redhook Quantity,
Company may engage Xxxxxx (pursuant to the Xxxxxx Distribution Agreement) or if
Xxxxxx is unable or unwilling to manufacture the difference, may engage another
contract xxxxxx to manufacture the difference between the Required Redhook
Quantity and the Promised Redhook Quantity.
4.2 EXISTING XXXXXX PRODUCTS.
4.2.1 If, pursuant to the Xxxxxx Distribution Agreement, Xxxxxx
notifies Company that it is unwilling or unable to manufacture all of the
Required Xxxxxx Quantity (as defined in the Xxxxxx Distribution Agreement),
Company shall notify Redhook of Company's desire to purchase the difference (the
"Xxxxxx Quantity Difference") between the Required Xxxxxx Quantity and the
Promised Redhook Quantity (as defined in the Xxxxxx Distribution Agreement). For
a period of five business days following the date Redhook receives such notice,
Redhook shall have the option to accept the obligation to manufacture the Xxxxxx
Quantity Difference by notifying Company within such five business day period.
If Redhook fails to exercise such option, Company may have any other contract
xxxxxx manufacture the Xxxxxx Quantity Difference.
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
4.2.2 Under the terms and conditions set forth in SCHEDULE 4.2.2,
attached hereto, Redhook will have an option to manufacture Xxxxxx Products, or
Xxxxxx will have an option to manufacture Redhook Products.
4.3 NEW REDHOOK PRODUCTS AND NEW XXXXXX PRODUCTS. Redhook and Company
acknowledge that (a) under the Xxxxxx Distribution Agreement, new Xxxxxx Brands
may be added upon terms similar to those in Section 3.2 above, (b) the volume of
Redhook Products and Xxxxxx Products derived from such new brands (each, a "New
Brand") that will be distributed and sold by Company is speculative, and (c) the
parties under this Agreement and the Xxxxxx Distribution Agreement intend for
the number of New Brands to be apportioned equitably between Redhook and Xxxxxx.
Redhook and Company agree that with respect to the New Brands to which Section
4.4 does not apply, (x) the first New Brand will be offered to the xxxxxx
(Redhook or Xxxxxx) that sold the lower quantity of Products in the immediately
preceding calendar year, and (y) each additional New Brand will thereafter be
apportioned alternatively to each xxxxxx. If a New Brand is apportioned to
Redhook, (i) Redhook shall have the obligation to manufacture all Products
ordered by Company as provided under this Agreement, (ii) Redhook shall have the
right during this Agreement to manufacture the Products even though the New
Brand may be a Xxxxxx brand, and (iii) all Products using such New Brand will be
subject to the terms under this Agreement as if it were an original Brand.
Within ten (10) days following written notice to Redhook of the assignment of a
New Brand, Redhook may elect not to accept such New Brand by notifying Company
within such ten (10) day period. If Redhook elects not to accept such New Brand,
Company may assign the New Brand to Xxxxxx.
4.4 REINTRODUCED DISCONTINUED PRODUCTS. Redhook will have the first
opportunity to manufacture a New Brand that Company elects to introduce if (a)
such New Brand is in the same "Beer Style" as a Discontinued Redhook Brand that
Company discontinued, pursuant to Section 3.3 of this Agreement, in the
immediately preceding 12-month period and (b) such New Brand is not in the same
Beer Style as a Discontinued Xxxxxx Brand (as defined in the Xxxxxx Distribution
Agreement) that Company discontinued, pursuant to Section 3.3 of the Xxxxxx
Distribution Agreement, in the immediately preceding 12-month period. As used in
this Section, a "Beer Style" is one of the following: xxxxxx, xxxxx, pale ale,
blonde, fruit beer, hefeweizen, lager, and xxxxx, as those terms are commonly
used in the beer industry. In order to exercise its option, Redhook must notify
Company within ten (10) days following written notice from Company of its intent
to have such New Brand manufactured.
4.5 AGREEMENT WITH THIRD PARTY CONTRACT BREWERS. If pursuant to Section
4.1.2 or Section 4.2.1 above (or pursuant to the parallel provisions in the
Xxxxxx Distribution Agreement) Company engages a third party contract xxxxxx
(each a "Contract Xxxxxx") to manufacture any Product, Company may enter into a
contract brewing agreement (each, a "Brewing Contract") with a Contract Xxxxxx
on terms and conditions Company deems reasonable, which may include (without
limitation) the following: (a) the term during which Company will be obligated
to purchase Products from the Contract Xxxxxx and (b) the minimum quantity of
Products that Company will be obligated to purchase from the Contract Xxxxxx.
Redhook agrees that Company shall have no liability to Redhook for failure to
purchase any Products from Redhook in order to comply with its obligations under
the Brewing Contract.
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
4.6 PACKAGING CHANGES. Company may, from time to time and in accordance
with the restrictions set forth in Section 1.3 above, require changes to the
Intellectual Property or packaging for existing Redhook Products and require new
Intellectual Property or packaging for new Redhook Products upon 180 days' prior
written notice to Redhook. The direct out-of-pocket costs for all such changes
or new Intellectual Property will be paid by Company. If Company requires any
changes to the Intellectual Property or packaging that requires capital
expenditures by Redhook, Company shall reimburse Redhook for such expenditures;
provided that Company may not require any changes to the packaging or the
Intellectual Property that requires capital improvements exceeding $100,000.00.
If Company requires any changes to the packaging or the Intellectual Property
that increases Redhook's variable cost to manufacture and package the Products,
the price for such Products shall be increased by such estimated additional
incremental cost if (a) within thirty (30) days following the date Company
requests such change Redhook notifies Company of the increased incremental cost,
providing reasonable supporting documentation, and (b) Company thereafter elects
for Redhook to manufacture such Products. Company may, upon notice to Redhook,
audit Redhook's books and records to the extent necessary to confirm such
increased variable costs.
5. ABI DISTRIBUTION AGREEMENT.
5.1 The parties acknowledge that Company is distributing the Products
through ABI pursuant to the ABI Distribution Agreement, subject to the
restrictions, limitations, and conditions set forth therein.
5.2 Company shall notify Redhook of any notice of default Company
receives from ABI with respect to the ABI Distribution Agreement and shall
comply with the terms and condition of the ABI Distribution Agreement.
5.3 Redhook has reviewed the ABI Distribution Agreement and, to the
extent relating to Redhook and its Products, (a) confirms each representation
and warranty that Company has made under the ABI Distribution Agreement and (b)
covenants to perform or cooperate with Company in performing all of Company's
obligations under the ABI Distribution Agreement.
5.4 Neither party shall take any action under this Agreement that would
be a violation or cause Company to be in violation of the ABI Distributor
Agreement.
6. ORDERS; PURCHASE PRICE; PAYMENT.
6.1 OBLIGATION TO MANUFACTURE. Subject to Section 4.1.2 above, Redhook
shall manufacture the Redhook Products in the packages ordered by Company and
shall cause the Redhook Products to be bottled, labeled, packaged, and delivered
by the delivery dates set forth in the order. Company may not require delivery
less than thirty (30) days following the date of the Order.
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
6.2 REDHOOK PRODUCT SPECIFICATIONS.
(a) Each of the Redhook Products manufactured by Redhook will
conform to the specifications, recipes, and quality control requirements
attached as SCHEDULE 6.2.
(b) For each new Redhook Product, the Redhook Products delivered
will conform to the specifications, recipe, and quality control requirements as
reasonably determined by the Company.
(c) Product specifications of Redhook Products may be changed only
upon mutual agreement of Redhook and Company.
(d) In addition to the foregoing, the Redhook Products shall comply
with the Product requirements as set forth in the ABI Distribution Agreement, as
modified from time to time, and shall not (in Company's reasonable
determination) be adulterated, contaminated, or otherwise of a quality that is
below the average quality previously supplied by Xxxxxx, which may include,
without limitation, (i) apparent defects in taste or appearance in excess of
typical age-related changes; (ii) microbiological contamination or other
contamination such as carryover of cleaning chemicals or foreign object
inclusions; and (iii) defective primary or secondary packaging.
6.3 PRICES. The initial purchase prices for the Redhook Products are set
forth on SCHEDULE 6.3, attached hereto. Thereafter, the purchase prices for
Redhook Products shall be adjusted effective each January 1, to be an amount
equal to:
(a) For draught Redhook Products, the purchase price per barrel will
be equal to (i) the Average Draught Net Sales Price multiplied times *, plus
(ii) any applicable Excise Taxes. "Average Draught Net Sales Price" means the
product of (x) the gross amount received by Company during the immediately
preceding fiscal year of October 1 through September 30 (the "Fiscal Year") for
sales of all draught Redhook Products and draught Xxxxxx Products, less any
discounting, depletion allowance, promotion, or post-off pricing, divided by (y)
the total number of barrels of draught Redhook Products and draught Xxxxxx
Products sold by Company during such Fiscal Year. "Excise Taxes" means all
federal, state, and local excise taxes.
(b) For bottled Redhook Products, the purchase price per PCE will be
equal to (i) the Average Bottle Net Sales Price multiplied times *, plus (ii)
any applicable Excise Taxes. "Average Bottle Net Sales Price" means the product
of (x) the gross amount received by Company during the immediately preceding
Fiscal Year for sales of all bottled Redhook Products and bottled Xxxxxx
Products, less any discounting, depletion allowance, promotion, or post-off
pricing, divided by (y) the total number of PCEs of bottled Redhook Products and
bottled Xxxxxx Products sold by Company during such Fiscal Year.
* CONFIDENTIAL TREATMENT REQUESTED
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
6.4 PACIFIC RIDGE. Notwithstanding the provisions in Section 6.3 above,
the purchase price for the Pacific Ridge brand Redhook Products shall be equal
to the following: (a) the gross amount received (including any freight costs
incurred by Company) by Company for sales of all Pacific Ridge brand Redhook
Product, minus (b) any discounting, depletion allowance, promotion, or post-off
pricing.
7. RIGHTS IN INTELLECTUAL PROPERTY.
7.1 INTELLECTUAL PROPERTY. Company acknowledges that its use of the
Intellectual Property shall not create any right, title, or interest in or to
the Intellectual Property in Company. Company may, however, sublicense others
the right to use the Intellectual Property for the purpose of fulfilling
Company's obligations under this Agreement. Company shall not apply at any time
anywhere in the world for any trademark or other intellectual property
protection in its name for any of the Intellectual Property.
7.2 IMPROVEMENTS; OWNERSHIP. Improvements and modifications to the
Intellectual Property created by either party during the term of this Agreement
shall, from the time of conception or development, be the property of Redhook.
Company hereby assigns, and agrees to take all actions necessary as reasonably
requested by Redhook to assign all such improvements and modifications.
7.3 REPRESENTATIONS AND WARRANTIES. Redhook represents and warrants that
(a) it has the right to license the Intellectual Property to Company as provided
under this Agreement; (b) the license of the Intellectual Property and
distribution rights under this Agreement do not conflict with any agreement,
judgment, or other obligation of Redhook; and (c) Company's use of the
Intellectual Property hereunder will not violate the rights of any third person.
8. INFRINGEMENT.
8.1 CLAIMS AGAINST THIRD PARTIES. Company shall notify Redhook promptly
in writing of any infringement or unauthorized use of the Intellectual Property
by third parties that may come to its attention in writing. Redhook shall
promptly and diligently act, or cooperate with Company who may act, to enjoin
and prevent in the Territory infringement or threatened infringement by others
of the Intellectual Property, and shall take, or cooperate with Company who may
take, such legal action as may be required to protect such rights. Costs,
expenses and recoveries of prosecuting infringement actions shall be handled as
follows:
8.1.1 If Redhook at its own expense files and is successful in
infringement litigation or settlement, then Redhook shall be entitled
exclusively to any amounts recovered.
8.1.2 If Company at its own expense files and is successful in
infringement litigation or settlement, then Company shall be entitled
exclusively to any amounts recovered, and shall be entitled to a credit against
any amounts owing Redhook under this Agreement for all costs and expenses of
litigation in excess of the award for or other recovery of such costs and
expenses.
8.1.3 If Company and Redhook jointly pursue and are successful in
infringement litigation or settlement, amounts recovered shall be first applied
to Company's costs and expenses, then to Redhook's costs and expenses, and then
shared in direct proportion to the financial investment (costs and expenses)
made in such litigation or settlement.
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
8.2 CLAIMS AGAINST REDHOOK. Company shall notify Redhook promptly in
writing of any and all allegations or claims by others which may come to its
attention in writing that the use of the Intellectual Property infringes or
violates a trademark of any third party. In such event, Redhook shall procure
for Company the right to continue to use the matter which is the subject of the
claim, or to modify the same so that it becomes non-infringing. Redhook shall
undertake and conduct the defense of any suit, action, or proceeding arising out
of the use by Company of the Intellectual Property hereunder. Company shall
cooperate in such defense provided Redhook shall pay any out-of-pocket expenses
incurred by Company in connection therewith. No settlement of any such claim or
suit shall be made without the prior written consent of Redhook.
9. COMPLIANCE WITH LAW. Both Redhook and Company shall comply with all
applicable rules and regulations of the TTB (Alcohol and Tobacco Tax and Trade
Bureau of the Department of the Treasury), and any other regulatory agency that
has jurisdiction over the Redhook Products. The parties shall cooperate with
each other to provide and retain any regulatory, taxation, or other reports or
information required by TTB, or any other regulatory agency.
10. CONFIDENTIALITY.
10.1 ACCESS TO INFORMATION. Each party ("Recipient") acknowledges that
during the term of this Agreement it may have access to nonpublic information
about the existing or proposed business or products ("Confidential Information")
of the other party (the "Disclosing Party") . Confidential Information includes,
without limitation, (i) information marked or otherwise designated by the
Disclosing Party as confidential or proprietary, (ii) information that by the
nature of the circumstances surrounding the disclosure would reasonably be
treated as confidential information by a prudent xxxxxx, and (iii) information
provided to the Disclosing Party by third parties that it is obligated to keep
confidential. Confidential Information may be written, oral, embodied in
products (including the Redhook Product), or in other forms. Confidential
Information does not include information that is or becomes publicly known,
other than as a result of Recipient's actions or failure to prevent disclosure.
The fact that portions of Confidential Information may be publicly available
shall not affect Recipient's obligations with respect to the remaining portion
or with respect to the particular formulation or compilation disclosed by the
Disclosing Party.
10.2 NON-DISCLOSURE AND NON-USE. Recipient shall not disclose to others
or use any Confidential Information of the Disclosing Party, except as required
to perform its obligations under this Agreement. Recipient may, however,
disclose Confidential Information to its employees and agents who need to know
the information in connection with this Agreement, who are made aware of its
confidential nature, and who are obligated to comply with the restrictions
imposed by this Section 10. A default by a Recipient's employee or independent
contractor of the provisions set forth under this Agreement shall be a default
of the Recipient.
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
10.3 RETURN. Except as set forth below, upon the expiration or
termination of this Agreement, Recipient shall promptly destroy or return to the
Disclosing Party, as the Disclosing Party may direct, all tangible materials
provided to it by the Disclosing Party that embody Confidential Information
(other than Redhook Products) and shall erase or delete all such Confidential
Information embodied in any magnetic, optical, or similar medium or stored or
maintained on any information storage and/or retrieval device. Recipient may
retain one copy of Confidential Information for archival and regulatory
purposes.
10.4 REMEDIES. In the event of a default under this Section, the
Disclosing Party shall be entitled to a temporary restraining order, preliminary
injunction, and other injunctive relief, in addition to other available
remedies, including damages.
10.5 DURATION. The obligations set forth in this Section shall continue
in effect beyond the term of this Agreement and for so long as Recipient
possesses Confidential Information.
11. INDEMNIFICATION.
11.1 OBLIGATION. Each party (the "Indemnitor") shall indemnify and hold
harmless the other party, its affiliates, its successors, and assigns, and each
of their respective directors, officers, employees, and agents, from and against
all claims, liabilities, losses, damages, injuries, demands, actions, causes of
action, suits, proceedings, judgments, and expenses, including, without
limitation, reasonable attorneys' fees, court costs, and other legal expenses
(collectively, "Costs") to the extent arising from, connected with or
attributable to any claim arising out of the negligence, willful misconduct, or
breach of this Agreement by the Indemnitor. Without limiting the foregoing,
Redhook shall indemnify, defend, and hold harmless Company and ABI and each of
their respective affiliates, successors, and assigns, and each of their
respective directors, officers, employees, and agents from and against all Costs
arising out of or related to any product liability claims except to the extent
such Costs resulted from any negligence or willful misconduct of Company.
11.2 INDEMNIFICATION PROCEDURE. With respect to claims made by third
parties, if any party that is entitled to indemnification hereunder (each, an
"Indemnitee") is threatened with any claim, or any claim is presented to or any
action or proceeding commenced against the Indemnitee, which may give rise to
the right of indemnification hereunder, the Indemnitee will give prompt written
notice thereof to the Indemnitor. The Indemnitor, by delivery of written notice
to the Indemnitee within twenty (20) days of receipt of notice of a claim for
indemnification from the Indemnitee, may elect to assume the defense of any such
third party claim at the Indemnitor's expense. If the Indemnitor assumes the
defense, it shall have the right to settle an indemnifiable matter without the
consent of the Indemnitee unless the settlement would have a material adverse
effect on the Indemnitee. If the Indemnitor does not timely elect to defend an
indemnifiable matter, the Indemnitee shall have the exclusive right to
prosecute, defend, compromise, settle, or pay any claim, without prejudice to
the right of the Indemnitee to recover any and all losses and reasonable
expenses (including attorneys fees and costs) incurred from the Indemnitor. The
Indemnitee shall permit the Indemnitor reasonable access to the books and
records of the Indemnitee and shall otherwise cooperate with the Indemnitor in
connection with any matter or claim of indemnification.
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
11.3 INTENDED THIRD PARTY BENEFICIARY. ABI is an intended third party
beneficiary under this Section 11.
12. INSURANCE. Each party shall keep in force at all times while any Redhook
Product is being offered for sale, general liability insurance with both
"products" and "contractual" coverage for aggregated claim in the minimum amount
of $3,000,000, and to furnish the other a certificate from a financially
responsible insurance company evidencing that such insurance is in force, naming
the other party as an additional insured, and providing that such coverage may
not be cancelled or materially changed without thirty (30) days prior written
notice to the other party. Any such policy of insurance shall contain a waiver
of subrogation.
13. WARRANTIES.
13.1 WARRANTY OF AUTHORITY. Each of the parties hereto warrants and
represents to the other party that (a) it has the full right, power and
authority to enter into this Agreement and to carry out its obligations
hereunder and (b) that it has no obligations to any other party that are
inconsistent with its obligations under this Agreement.
13.2 LIMITATION OF LIABILITY. EXCEPT FOR CONSEQUENTIAL DAMAGES CAUSED BY
A BREACH OF THE CONFIDENTIALITY AGREEMENTS IN SECTION 10 ABOVE, IN NO EVENT
SHALL ANY PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR
LOST REVENUES OR PROFITS.
14. TERMINATION.
14.1 TERM. The term of this Agreement shall commence on the date first
set forth above and continue until terminated as set forth herein.
14.2 TERMINATION BY EITHER PARTY. Either party may terminate this
Agreement upon written notice given to the other party following the occurrence
of any of the following events:
14.2.1 The other party fails to timely make any payment required
under this Agreement for a period of 60 days following written notice thereof by
the nonbreaching party.
14.2.2 The other party fails to perform any other material
obligation under this Agreement and such failure remains uncured for a period of
60 days following written notice thereof by the nonbreaching party.
14.2.3 The other party becomes the subject of insolvency or
bankruptcy proceedings, ceases doing business, makes an assignment of assets for
the benefit of creditors, dissolves, or has a trustee appointed for all or a
substantial portion of such party's assets.
14.2.4 Any government authority makes a final decision invalidating
a substantial portion of this Agreement.
14.2.5 Either party finds that complying with any law or regulation
relating to fulfilling its obligations under this Agreement would be
commercially unreasonable and failure to comply with the law or regulation would
subject such party or any of its personnel to a monetary or criminal penalty.
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
14.2.6 The ABI Distribution Agreement terminates for any reason.
14.2.7 The Operating Agreement terminates for any reason.
14.3 TERMINATION BY COMPANY.
14.3.1 Company may upon notice to Redhook terminate this Agreement
if Redhook causes Company to be in default in its obligations under the ABI
Distribution Agreement and Redhook either (a) fails to take all actions
necessary to cause Company to cure such default in accordance with the ABI
Distribution Agreement or (b) fails to pay on demand all direct or indirect
Costs (as defined in Section 11.1) arising out of or related to such default.
14.3.2 Company may upon notice to Redhook (a) terminate this
Agreement if (i) an event of default occurs under Section 7 of the Agreement
giving ABI the right to terminate the ABI Distribution Agreement (each, a
"Default Event"), (ii) Redhook caused such Default Event, and (iii) Company
elects to cure such Default Event or attempt to rectify the damage to the
reputation or image of ABI or the brewing industry caused by such Default Event
by terminating this Agreement and (b) cease advertising, marketing, or
distributing one or more Redhook Product brands (including Pacific Ridge brands)
if ABI notifies Company that it will no longer distribute such Redhook Product
brand or brands under the ABI Distribution Agreement.
14.4 SURVIVAL OF RIGHTS AND OBLIGATIONS. Termination of this Agreement
shall not prejudice any rights of either party hereto against the other which
may have accrued up to the date of termination. In addition, all covenants
respecting indemnification, governing law, attorneys fees, arbitration,
confidentiality, warranties, termination, and continuing liability for amounts
payable hereunder shall survive the termination of this Agreement as expressly
set forth elsewhere herein.
14.5 TERMINATION OF OTHER AGREEMENTS. Upon expiration or any
termination, (a) all rights granted to Company with respect to the Intellectual
Property, as appropriate, shall revert to Redhook; thereafter, (b) Company shall
(i) refrain from all further use of the Intellectual Property, and (ii) Company
shall (at Redhook's direction) either destroy or return to Redhook all copies of
labels, packaging, or other materials on which a Trademark may be affixed,
except for Redhook Products which may be disposed of in any commercially
reasonable manner and (c) unless it would violate the terms of the ABI
Distribution Agreement, Redhook may purchase the remaining inventory of Redhook
Products at a price agreed upon by the parties; provided however that if Redhook
and Company do not agree on a price within ten (10) days following such
expiration or termination, Company may sell the Redhook Products to any
third-party at a net price that is equal to or greater than the price last
offered by Redhook.
15. NOTICES. Any notice, request or demand to be given or made under this
Agreement shall be in writing and shall be deemed to have been duly given or
made (i) upon delivery, if delivered by hand and addressed to the party for whom
intended at the address listed below, (ii) ten (10) days after deposit in the
mails, if sent certified or registered air mail (if available) with return
receipt requested, or five (5) days after deposit if deposited for delivery with
a reputable courier service, and in each case addressed to the party for whom
intended at the address listed below or (iii) upon completion of transmission,
if sent by facsimile transmission to the party for whom intended at the fax
number listed below, provided that a copy of the facsimile transmission is
promptly deposited for delivery by one of the methods listed in (i) or (ii)
above:
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
If to Redhook, to: Redhook Ale Brewery, Incorporated
00000 XX 000xx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Attn: President
Fax: (000) 000-0000
If to Company, to: Craft Brands Alliance LLC
000 X. Xxxxxxx
Xxxxxxxx, Xxxxxx 00000
Attn: President
Fax: (000) 000-0000
Any party may change its address and/or fax number for the purposes of this
Section 15 by written notice hereunder given to the other parties at least ten
(10) days prior to the effective date of such change. Copies of all notices of
default or any notice under Section 14 under this Agreement shall be sent to:
Xxxxxx Brothers Brewing Company
000 X. Xxxxxxx
Xxxxxxxx, Xxxxxx 00000
Attn: President
Fax: (000) 000-0000
16. MISCELLANEOUS.
16.1 RELATIONSHIP. This Agreement does not make either party the
employee, agent, or legal representative of the other party for any purpose
whatsoever. Neither party is granted any right or authority to assume or to
create any obligation or responsibility, express or implied, on behalf of or in
the name of the other party. In fulfilling its obligations pursuant to this
Agreement each party shall be acting as an independent contractor.
16.2 ASSIGNMENT. Except as set forth herein, neither party shall have
the right to assign, sublicense, subcontract, or otherwise transfer its rights
and obligations under this Agreement except with the prior written consent of
the other party. Redhook does consent to Company's distributing the Redhook
Product through ABI distributors within the Territory. The parties acknowledge
that the Redhook Product shall be distributed pursuant to the Master
Distribution Agreement between Company and ABI. Each of Company and Redhook
agree that the terms and conditions of the ABI Distribution Agreement (as
amended, replaced, or modified from time to time), including the rights and
obligations of ABI, shall apply to the Redhook Products as if they were products
of Company. Any prohibited assignment shall be null and void. The parties
acknowledge and agree that Redhook may elect to assign all of its assets related
to the Redhook Brew-Pubs to an Affiliate. In this event, the provisions relating
to the Redhook Brew-Pub will apply with respect the Affiliate's restaurants. For
the purposes of this section, an "Affiliate" is a company controlled by, in
common control of, or under common ownership with Redhook. Upon an assignment to
an Affiliate, a copy of the assignment agreement will be delivered to Company.
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
16.3 ENTIRE AGREEMENT. THIS AGREEMENT, INCLUDING ALL ATTACHMENTS HERETO,
CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT
MATTER HEREOF, AND SUPERSEDES ALL PREVIOUS AGREEMENTS BY AND BETWEEN THE
PARTIES AS WELL AS ALL PROPOSALS, ORAL OR WRITTEN, AND ALL NEGOTIATIONS,
CONVERSATIONS, OR DISCUSSIONS HERETOFORE HAD BETWEEN THE PARTIES RELATED TO
THIS AGREEMENT.
16.4 AMENDMENT. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled, or waived, in whole or in part, except
by written amendment signed by the parties hereto.
16.5 SEVERABILITY. In the event that any of the terms of this Agreement
are in conflict with any rule of law or statutory provision or are otherwise
unenforceable under the laws or regulations of any government or subdivision
thereof, such terms shall be deemed stricken from this Agreement, but such
invalidity or unenforceability shall not invalidate any of the other terms of
this Agreement and this Agreement shall continue in force, unless the invalidity
or unenforceability of any such provisions hereof does substantial harm to, or
where the invalid or unenforceable provisions comprise an integral part of, or
are otherwise inseparable from, the remainder of this Agreement.
16.6 CONSENT. Unless otherwise expressly stated in this Agreement, if
any action is conditioned upon the consent of either party (a) such consent may
not be unreasonably withheld, delayed, or conditioned and (b) consent shall be
deemed granted unless the consenting party notifies the other party in writing
of the reasons why such consent is not granted within 15 days following receipt
of the written request for consent.
16.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, and each such counterpart shall be deemed an original hereof.
16.8 HEADINGS. Headings and subheadings in this Agreement are not
intended to and do not have any substantive content whatsoever.
16.9 MUTUAL NEGOTIATION IN DRAFTING. The parties acknowledge each party
and its counsel have materially participated in the drafting of this Agreement.
Consequently, the rule of contract interpretation, that ambiguities, if any, in
a writing be construed against the drafter, shall not apply.
16.10 WAIVER. No failure by either party to take any action or assert
any right hereunder shall be deemed to be a waiver of such right in the event of
the continuation or repetition of the circumstances giving rise to such right.
16.11 ATTORNEY FEES. In the event of a default under this Agreement, the
defaulting party shall reimburse the non-defaulting party for all costs and
expenses reasonably incurred by the non-defaulting party in connection with the
default, including, without limitation, attorney fees and costs (however
incurred, including at trial, on appeal, and on any petition for review). An
event of "default" is a breach by either party of this Agreement that is not
cured within an applicable cure period. Additionally, in the event any suit,
action, or arbitration is brought to enforce or interpret any of the terms of
this Agreement, the prevailing party shall be entitled to recover from the other
party all reasonable attorney fees and costs (however incurred, including at
trial, on appeal, and on any petition for review), together with such other
expenses, costs, and disbursements as may be allowed by law.
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
16.12 FORCE MAJEURE. Neither party shall be liable for any delay or
default in performing its obligations if such default or delay is caused by any
event beyond the reasonable control of such party, including, but not limited
to, acts of nature, terrorism, war, or insurrection, civil commotion,
destruction of production facilities or materials by earthquake, fire, storm, or
flood, labor disturbances or strikes, epidemic, materials shortages, equipment
malfunction, failure of ABI distributors, or other similar event. The party
suffering such cause shall immediately notify the other party of the cause and
the expected duration of such cause. If either party's performance is delayed by
more than 90 days pursuant to this Section, the other party may immediately
terminate this Agreement by written notice given before the affected party
resumes performance.
16.13 GOVERNING LAW; ARBITRATION. This Agreement shall be governed by
the laws of the State of Oregon, without regards to the principles of conflicts
of laws thereof. Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by arbitration in Portland,
Oregon in accordance with the rules of the Arbitration Service of Portland, Inc.
and judgment on the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof.
16.14 COMMENCEMENT OF AGREEMENT. Neither party shall have any rights or
obligations under this Agreement and none of its provisions shall be operative
unless and until all of the following have occurred:
16.14.1 The Operating Agreement, this Agreement, the other Related
Agreements, and the transactions described therein have been approved by the
respective boards of directors of Redhook and Xxxxxx;
16.14.2 The Operating Agreement and each of the other Related
Agreements are finalized, executed, and delivered by each party thereto; and
16.14.3 Company obtains all of the regulatory licenses and approvals
necessary to sell Products in the Initial Territory.
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
The parties have executed this Agreement as of the date first set forth
above.
CRAFT BRANDS ALLIANCE LLC REDHOOK ALE BREWERY, INCORPORATED
By:/s/ XXXXX XXXXXXXXXX By: /s/ XXXXX XXXXXXXXX
------------------------------ ---------------------------------
Name: XXXXX XXXXXXXXXX Name: XXXXX XXXXXXXXX
------------------------------ ---------------------------------
Title: PRESIDENT Title: EXECUTIVE VICE PRESIDENT,
CHIEF FINANCIAL OFFICER,
CHIEF OPERATING OFFICER
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
XXXXXXXXXXX O'XXXXXX XXXXXXX KINDNESSPLLC
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
REDHOOK ALE BREWERY, INCORPORATED ACTIVE TRADEMARKS
JUNE 9, 2004 REGISTERED ONLY
Client Ref./ Country/
COJK Ref./ Xxxx/ Int'l Appl. No./ Reg. No./
Status Atty Owner Class Date Filed Reg. Date Goods and Services Action Date
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0008119 JRU XXXXXXX BITTER Canada 687,267 426,849 Ale and beer. Renewal Begin 11/06/2008
Registered JRU 08/08/91 05/06/94 Renewal End 05/06/2009
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0012695 JRU XXXXXXX BITTER Mexico 218818 484957 Ale and beer. Renewal End 11/30/2004
Registered JRU IC32 11/30/94 03/13/95 Renewal Begin 05/30/2014
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0013093 JRU XXXXXXX BITTER USA NH H TM VOL. 90, PG Ale. Renewal Begin 08/15/2004
Registered XXX XX00 00 Xxxxxxx Xxx 02/15/2005
02/15/95
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0001668 JRU BLACK HOOK USA 443,637 1,299,809 Ale - namely, Renewal End 10/09/2004
Registered JRU IC32 09/14/83 10/09/84 xxxxxx. Renewal Begin 10/09/2013
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0012697 JRU BLACK HOOK Mexico 218820 484959 Ale and beer. Renewal End 11/30/2004
Registered JRU IC32 11/30/94 03/13/95 Renewal Begin 05/30/2014
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0013095 JRU BLACK HOOK USA NH H TM VOL. 90 PG. Ale. Renewal Begin 08/15/2004
Registered XXX XX00 00 Xxxxxxx Xxx 02/15/2005
02/15/95
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0001667 JRU BLACK HOOK USA 443,629 1,296,703 Ale, namely, Renewal End 09/18/2004
Registered JRU XXXXXX & Design IC32 09/14/83 09/18/84 xxxxxx. Renewal Begin 09/18/2013
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0003118 JRU Design (Xxxxxxx USA 575,704 1,409,762 Ale. Renewal Begin 09/16/2005
Registered JRU Bitter) IC32 12/30/85 09/16/86 Renewal End 09/16/2006
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0004446 JRU Design USA 685,638 1,493,423 Ale. Renewal Begin 06/21/2007
Registered JRU (Winterhook) IC32 09/18/87 06/21/88 Renewal End 06/21/2008
------------------------------------------------------------------------------------------------------------------------------------
XXXX-0-0000000 XXX XXX Xxxxx 1997-103375 4370896 Ale; other beer. Renewal Begin 09/30/2009
Registered JRU IC32 04/03/97 03/31/00 Renewal End 03/31/2010
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0012699 JRU FORECASTERS USA 74/590,218 1,929,789 Restaurant and bar Renewal Begin 10/24/2004
Registered JRU IC42 10/24/94 10/24/95 services. Renewal End 10/24/2005
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0018651 JRU INDIA PALE ALE USA 75/479,479 2,262,841 Ale. Section 8, 15 07/20/2004
Registered JRU RED HOOK "YA IC32 05/05/98 07/20/99 Declaration Begin
SURE YA BETCHA"
ETC. and Design 6 Month Section 8, 01/20/2005
15 Declaration
Section 8, 15 07/20/2005
Declaration End
Renewal Begin 07/20/2008
Renewal End 07/20/2009
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0025094 JRU RED HOOK Australia 852882 852882 Beer and ale. Renewal Begin 04/09/2010
Registered JRU IC32 10/09/00 08/03/01 Renewal End 10/09/2010
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0008113 JRU RED HOOK Canada 687,394 418,500 Ale and beer. Renewal Begin 04/22/2008
Registered JRU 08/08/91 10/22/93 Renewal End 10/22/2008
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0008114 JRU RED HOOK Hong Kong 6207/91 2375/93 Ale and beer. Renewal Begin 02/28/2012
Registered JRU IC32 08/28/91 06/18/93 Renewal End 08/28/2012
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0016529 JRU RED HOOK Japan 1997-103376 4265307 Restaurant services, Renewal Begin 10/23/2008
Registered JRU IC42 04/03/97 04/23/99 bar services, and Renewal End 04/23/2009
all other services
belonging in this
class.
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0008115 JRU RED HOOK Japan 1991-85923 2601613 Ale and beer. Renewal/ 04/30/2004
Registered JRU IC32 08/15/91 11/30/93 Reclassification
Accepted?
Renewal Begin 05/30/2013
Renewal End 11/30/2013
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0012694 JRU RED HOOK Mexico 218821 484960 Ale and beer. Renewal End 11/30/2004
Registered JRU IC32 11/30/94 03/13/95 Renewal Begin 05/30/2014
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0008117 JRU RED HOOK Singapore 7563/91 7563/91 Ale and beer. Renewal Begin 02/13/2011
Registered JRU IC32 08/13/91 08/13/91 Renewal End 08/13/2011
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0008116 JRU RED HOOK South 91-23412 247,104 (IC36): Ale and Renewal Begin 02/17/2012
Registered JRU Korea 08/13/91 08/17/92 beer. Renewal End 08/17/2012
IC32
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0008118 JRU RED HOOK Taiwan (80)36883 556 831 Wine, ale and Renewal Begin 10/15/2001
Registered JRU IC17 08/14/91 04/16/92 beer. Renewal End 04/15/2012
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0001242 JRU RED HOOK USA 73/380,687 1,253,138 Ale. Renewal Begin 10/04/2012
Registered JRU IC32 08/19/82 10/04/83 Renewal End 10/04/2013
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0001198 JRU RED HOOK ALE & USA 382,104 1,332,480 Ale. Renewal End 04/23/2005
Registered JRU Design IC32 08/26/82 04/23/85 Renewal Begin 04/23/2014
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0015487 JRU RED HOOK DOUBLE Japan 1996-76304 4143687 Ale and beer. Renewal Begin 11/08/2007
Registered JRU BLACK IC32 07/11/96 05/08/98 Renewal End 05/08/2008
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0013092 JRU RED HOOK ESB USA NH H TM VOL. 90, PG Ale. Renewal Begin 08/15/2004
Registered XXX XX00 00 Xxxxxxx Xxx 02/15/2005
02/15/95
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0012592 JRU RED HOOK ESB and USA 74/597,335 1,940,873 (IC25) Men's, Renewal Begin 12/12/2004
Registered JRU Design IC25 11/10/94 12/12/95 women's and Renewal End 12/12/2005
IC30 children's
IC32 clothing, namely,
shirts, Tshirts,
sweatshirts, polo
shirts, and hats;
(IC30) bread;
(IC32) ale.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0016079 JRU Red Hook Logo Community 440996 440966 Ale and beer. Renewal Begin 06/11/2006
Registered JRU IC32 12/11/96 10/23/98 Renewal End 12/11/2006
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0029334 JRU SUNRYE USA 78/232,950 2,819,966 Ale. Section 8, 15 03/02/2009
Registered JRU IC32 04/02/03 03/02/04 Declaration
Redhook Ale Begin
Brewery,
Incorporated 6 Month Section 8, 09/02/2009
15 Declaration
Section 8, 15 03/02/2010
Declaration End
Renewal Begin 03/02/2013
Renewal End 03/02/2014
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0012698 JRU TROLLEYMAN USA 74/590,217 1,929,788 Restaurant and bar Renewal Begin 10/24/2004
Registered JRU IC42 10/24/94 10/24/95 services. Renewal End 10/24/2005
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0008121 JRU WHEAT HOOK Canada 687,268 413,666 Wheat brewed ale. Renewal Begin 12/18/2007
Registered JRU 08/08/91 06/18/93 Renewal End 06/18/2008
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0012696 JRU WHEAT HOOK Mexico 218819 484958 Ale and beer. Renewal End 11/30/2004
Registered JRU IC32 11/30/94 03/13/95 Renewal Begin 05/30/2004
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0013094 JRU WHEAT HOOK USA NH H TM VOL. 90, PG Wheat brewed ale. Renewal Begin 08/15/2004
Registered XXX XX00 00 Xxxxxxx Xxx 02/15/2005
2/15/95
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0004444 JRU WINTERHOOK USA 684,962 1,490,430 Ale. Renewal Begin 05/31/2007
Registered JRU IC32 09/18/87 05/31/88 Renewal End 05/31/2008
------------------------------------------------------------------------------------------------------------------------------------
IABR-2-0013096 JRU WINTERHOOK USA NH H TM Beer and ale. Renewal Begin 09/20/2005
JRU IC48 03/20/96 Renewal End 03/20/2006
------------------------------------------------------------------------------------------------------------------------------------
The information contained in this status report is privileged and confidential
information intended only for the use of Redhook Ale Brewery, Incorporated. This
information is continually updated in the records at Xxxxxxxxxxx O'Xxxxxx
Xxxxxxx Kindness and may be subject to change at any time. Comments, questions
or changes should be directed to Xxxxxxxxxxx O'Xxxxxx Xxxxxxx Kindness.
SCHEDULE 1.2.4
WASHINGTON MARKETING FEE FORMULA
1. FORMULA: The Washington Marketing Fee shall be equal to (a) the price paid
to CBA for the Products, minus (b) the price paid to Redhook by CBA for the
Redhook Products. The Washington Marketing Fee shall be calculated
separately for each package type.
2. EXAMPLE.
*
* CONFIDENTIAL TREATMENT REQUESTED
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
SCHEDULE 3.1
INITIAL REDHOOK PRODUCTS
ESB
IPA
Sunrye
Nut Xxxxx Ale
Chinook Copper
Pacific Ridge
Blackhook Xxxxxx
Winterhook
Hoptoberfest
Blonde
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
SCHEDULE 3.4
NON-DISTRIBUTED REDHOOK PRODUCTS
None.
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
SCHEDULE 4.2.2
OPTION TO MANUFACTURE
1. If, over any calendar year (the "Base Year") both (a) and (b) are true:
(a) The total quantity (in PCEs) of the Products of a xxxxxx
(the "Increasing Xxxxxx") sold in the Territory is greater than the total
quantity (in PCEs) of Products of the Increasing Xxxxxx sold in the Territory in
the immediately preceding calendar year (the difference is referred to as the
"Product Volume Increase"), and
(b) The total quantity (in PCEs) of the Products of the other
xxxxxx (the "Decreasing Xxxxxx") sold in the Territory is less than the total
quantity (in PCEs) of Products of the Decreasing Xxxxxx sold in the Territory in
the immediately preceding calendar year (the difference is referred to as the
"Product Volume Decrease");
then
(x) In the immediately following calendar year (the "Option
Year"), the Decreasing Xxxxxx shall have the option (the "Decreasing Xxxxxx
Option") to manufacture a quantity of Products equal to the lower of the
following (the "Option Quantity"):
(i) the Product Volume Increase, and
(ii) the Product Volume Decrease.
2. Notwithstanding the foregoing, if the Decreasing Xxxxxx is not able to
manufacture the Products in each type of packaging that was manufactured by the
Increasing Xxxxxx in the Base Year, (a) the Decreasing Xxxxxx Option shall
include only those Products the packaging of which the Decreasing Xxxxxx is able
to manufacture and (b) the Decreasing Xxxxxx Option shall include only the
percentage of the Option Quantity equal to the percentage manufactured by the
Increasing Xxxxxx using such packaging in the Base Year. For example, if the
Option Quantity for all types of packaging is 1,000 PCEs and the Increasing
Xxxxxx manufactured 40 percent long-neck bottle Products and 60 percent draft
Products, and the Decreasing Xxxxxx is not able to manufacture long-neck
bottles, then the Option Quantity shall be reduced to 600 PCEs of draft
Products. The Decreasing Xxxxxx may not substitute 400 PCEs of draft Products
for the 400 PCEs of long-neck bottled Product.
3. The Decreasing Xxxxxx must exercise the Decreasing Xxxxxx Option, if at
all, within ten (10) days following written notice from Company of such right.
The Decreasing Xxxxxx may exercise the Decreasing Xxxxxx Option with respect to
all or any portion of the Option Quantity. The brands of Product (which may be
either Redhook Products or Xxxxxx Products) that make up the Option Quantity
shall be those brands selected by Company; provided, however, that (i) the
Company shall endeavor to select no more than two brands of the Increasing
Xxxxxx and only those brands that had the highest sales volume in the Base Year
and (ii) if the Decreasing Xxxxxx will (under provisions of its distribution
agreement with Company) be manufacturing Products of the Increasing Xxxxxx in
the Option Year, the Company shall endeavor to reassign brands, in equal volumes
and package types, to the Increasing Xxxxxx and the Decreasing Xxxxxx so as to
permit each Xxxxxx to manufacture its own Product.
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
4. EXAMPLE.
See below.
----------- ---------- -------- ---------- ---------- ------------ ----------- ------------
WID % WID %
OF XXXXXX TOTAL REDHOOK RH % OF
BASE XXXXXX TOTAL BBLS BBLS BARRELS TOTAL REDHOOK
YEAR BBLS SOLD BUS MANUF MANUF SOLD BUS BBLS MANUF
----------- ---------- -------- ---------- ---------- ------------ ----------- ------------
2005 170,000 52% 170,000 52% 160,000 48% 160,000
----------- ---------- -------- ---------- ---------- ------------ ----------- ------------
2006 150,000 45% 150,000 45% 185,000 55% 185,000
----------- ---------- -------- ---------- ---------- ------------ ----------- ------------
2007 160,000 47% 180,000 53% 180,000 53% 160,000
----------- ---------- -------- ---------- ---------- ------------ ----------- ------------
2008 170,000 49% 165,000 48% 175,000 51% 180,000
----------- ---------- -------- ---------- ---------- ------------ ----------- ------------
2009 140,000 44% 135,000 42% 180,000 56% 185,000
----------- ---------- -------- ---------- ---------- ------------ ----------- ------------
2010 130,000 41% 135,000 43% 185,000 59% 180,000
----------- ---------- -------- ---------- ---------- ------------ ----------- ------------
2011 100,000 33% 105,000 35% 200,000 67% 195,000
----------- ---------- -------- ---------- ---------- ------------ ----------- ------------
2012 120,000 39% 135,000 44% 190,000 61% 175,000
----------- ---------- -------- ---------- ---------- ------------ ----------- ------------
2013 150,000 45% 140,000 42% 185,000 55% 195,000
----------- ---------- -------- ---------- ---------- ------------ ----------- ------------
2014 170,000 50% 165,000 49% 170,000 50% 175,000
----------- ---------- -------- ---------- ---------- ------------ ----------- ------------
----------- ---------- -------- ---------- ---------- ------------ ----------- ------------
10 yr Avg 146,000 45% 148,000 45% 181,000 55% 179,000
----------- ---------- -------- ---------- ---------- ------------ ----------- ------------
----------- --------- ----------------------- ----------------------- -------------------------
RH % DECLINING XXXXXX OPTION
TOTAL XXXXXX REDHOOK (DURING OPTION YEAR)
BASE BBLS ---------------------- ---------------------- -------------------------
YEAR MANUF +/(-) BASE +/(-) BASE XXXXXX* REDHOOK*
----------- --------- ----------- ----------- ---------- ------------ ----------- -------------
2005 48%
----------- --------- ----------- ----------- ---------- ------------ ----------- -------------
2006 55% (20,000) 170,000 25,000 160,000 20,000
----------- --------- ----------- ----------- ---------- ------------ ----------- -------------
2007 47% 10,000 150,000 (5,000) 185,000 5,000
----------- --------- ----------- ----------- ---------- ------------ ----------- -------------
2008 52% 10,000 160,000 (5,000) 180,000 5,000
----------- --------- ----------- ----------- ---------- ------------ ----------- -------------
2009 58% (30,000) 170,000 5,000 175,000 5,000
----------- --------- ----------- ----------- ---------- ------------ ----------- -------------
2010 57% (10,000) 140,000 5,000 180,000 5,000
----------- --------- ----------- ----------- ---------- ------------ ----------- -------------
2011 65% (30,000) 130,000 15,000 185,000 15,000
----------- --------- ----------- ----------- ---------- ------------ ----------- -------------
2012 56% 20,000 100,000 (10,000) 200,000 10,000
----------- --------- ----------- ----------- ---------- ------------ ----------- -------------
2013 58% 30,000 120,000 (5,000) 190,000 5,000
----------- --------- ----------- ----------- ---------- ------------ ----------- -------------
2014 51% 20,000 150,000 (15,000) 185,000 15,000
----------- --------- ----------- ----------- ---------- ------------ ----------- -------------
----------- --------- ----------- ----------- ---------- ------------ ----------- -------------
10 yr Avg 55% 45,000 40,000
----------- --------- ----------- ----------- ---------- ------------ ----------- -------------
ASSUMPTIONS:
1. The Declining Xxxxxx is able to manufacture all types of packaging of the
Increasing Xxxxxx.
2. The Declining Xxxxxx exercises the Declining Xxxxxx Option each time it is
available.
3. Company always assigns the Option Quantity Products of the Increasing Xxxxxx
to the Declining Xxxxxx.
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
SCHEDULE 6.2
REDHOOK PRODUCT SPECIFICATIONS
SEE ATTACHED.
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
REDHOOK PRODUCT PROFILE FOR SALES/MARKETING 10/13/03
-------------------------- ------------ ------------- ---------------------- ------------- -------------
BRAND ALCOHOL ALCOHOL ORIGINAL RDF IBU'S
(wt%) (vol%) GRAVITY
-------------------------- ------------ ------------- ---------------------- ------------- -------------
BLONDE 4.24 5.41 12.57 (1.05077) 66.6 18.3
(4.20-4.29) (5.35-5.48) (12.41-12.79) (66.1-67.4) (16.7-19.6)
BHP 4.10 5.23 12.34 (1.04980) 65.7 32.6
(4.03-4.23) (5.15-5.39) (12.09-12.63) (63.6-67.3) (28.4-36.6)
ESB 4.52 5.77 13.46 (1.05454) 66.2 24.3
(4.41-4.64) (5.64-5.92) (13.26-13.57) (64.6-68.0) (19.4-27.3)
IPA 5.11 6.51 14.21 (1.05773) 70.5 38.5
(4.97-5.33) (6.34-6.79) (13.85-14.40) (68.1-73.0) (34.0-41.0)
CHINOOK 4.46 5.70 13.52 (1.05479) 65.1 28.1
COPPER ALE (4.41-4.50) (5.64-5.75) (13.30-13.72) (64.6-65.4) (23.2-32.2)
SUNRYE 3.66 4.65 9.76 (1.03905) 74.7 20.0
NUT XXXXX 4.36 5.57 13.54 (1.05487) 63.5 21.2
(4.18-4.53) (5.35-5.79) (13.32-13.76) (62.1-64.9) (18.8-23.6)
WH '03 4.67 5.98 14.19 (1.05765) 64.8 45.4
-------------------------- ------------ ------------- ---------------------- ------------- -------------
-------------------------- ------------ -------------- ----------------------- --------------
BRAND COLOR CALORIES CARBOHYDRATES PROTEIN
(SRM) / 12 oz. (g/12oz) (g/12oz)
-------------------------- ------------ -------------- ----------------------- --------------
BLONDE 7.0 166.4 13.13 2.19
(6.7-7.3) (164-169) (12.59-13.58) (2.02-2.44)
BHP 47.0 163.2 12.92 2.53
(41.5-52.4) (159-168) (12.12-14.34) (2.22-2.89)
ESB 13.2 179.0 14.15 2.58
(11.9-13.9) (176-181) (13.45-14.62) (2.35-2.94)
IPA 8.4 188.1 12.66 2.78
(7.7-9.6) (182-191) (10.68-13.80) (2.39-3.09)
CHINOOK 12.0 180 14.63 2.46
COPPER ALE (10.7-13.3) (177-183) (14.36-14.90) (2.40-2.51)
SUNRYE 4.6 125 7.12 1.65
NUT XXXXX 31.9 181.0 16.02 2.54
(30.2-33.5) (178-184)
WH '03 34.1 190 15.54 2.90
-------------------------- ------------ -------------- ----------------------- --------------
IBU's (International Bitterness Units)
RDF (Real Degree of Fermentation)
SRM (Standard Reference Method)
These numbers are provided by Redhook Quality Control, Woodinville Brewery. They
are presented as average (minimum - maximum) based on the results of WDV beer
analyzed by A-B Brewing Technical Services during year 2000 to 2003. This info.
may be used by the Redhook Sales Force and their distributors.
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
SCHEDULE 6.3
INITIAL REDHOOK PRODUCT PRICES
---------------------------------------- ------------------------------------------- ---------------------------------
2004 Net Sales Draught Bottle Per Case Equivalent
---------------------------------------- ------------------------------------------- ---------------------------------
Xxxxxx * *
---------------------------------------- ------------------------------------------- ---------------------------------
Redhook * *
---------------------------------------- ------------------------------------------- ---------------------------------
Total * *
= =
---------------------------------------- ------------------------------------------- ---------------------------------
Average/2 * *
---------------------------------------- ------------------------------------------- ---------------------------------
Average Price @ 59% * *
---------------------------------------- ------------------------------------------- ---------------------------------
Plus Base Excise Tax * *
---------------------------------------- ------------------------------------------- ---------------------------------
2005 Transfer Price * *
---------------------------------------- ------------------------------------------- ---------------------------------
* CONFIDENTIAL TREATMENT REQUESTED
REDHOOK SUPPLY, DISTRIBUTION, AND
LICENSING AGREEMENT
