Exhibit 10.1
EXECUTION COPY
--------------
MANUFACTURING LICENSE AGREEMENT
THIS AGREEMENT dated the 5th day of September 2003
BETWEEN:
PABST BREWING COMPANY A DELAWARE CORPORATION, U.S.A.
having offices at
000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxx
Xxxxxx Xxxxxx of America
(hereinafter referred to as "Licensor")
and
INNO UP LIMITED, A BRITISH VIRGIN ISLANDS CORPORATION
having offices at
23/F., Hang Seng Causeway Bay Building
00 Xxx Xx Xxxxxx
Xxxxxxxx Xxx
Xxxx Xxxx
(hereinafter referred to as "Licensee")
ARTICLE 1. RECITALS
1.1 Licensor is the originator and producer of beer, which Beverage is
made by a secret process;
1.2 Licensor is in possession of the Trade Secret essential to the
production of said
Beverage;
1.3 Licensor is in possession of valuable information and Know-how of
importance to the production of said Beverage;
1.4 Licensor has registered the trademarks "PABST BLUE RIBBON", "B and
HOPLEAF Design", "COMBINATION OF PABST (in Chinese characters) BLUE RIBBON and
Design & HOP LEAF Design" and "PABST BLUE RIBBON and Design" under registration
numbers 559292, 559293, 559294 and 596190 in the Trade-marks Office in the
People's Republic of China in association with said Beverage;
1.5 Licensor has established a market and high reputation of said Beverage
and goodwill for said Trademarks;
1.6 Licensor and Licensee wish to enter into this Agreement in order to
facilitate the production, distribution and sale of said Beverage in the
Territory.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
premises and other good and valuable consideration (the receipt and sufficiency
of which are hereby acknowledged) the parties hereto agree as follows:
ARTICLE 2. DEFINITIONS
When used herein (or in any schedules or amendments hereto), the following
terms shall have the following meanings, respectively:
2.1 "AGREEMENT" means this manufacturing license agreement, the recitals
set forth in the preamble and all schedules and amendments hereto, and "herein",
"hereunder" or "hereof' means all and every part of this Agreement, unless the
context clearly indicates otherwise;
2.2 "BEVERAGE" means PABST BLUE RIBBON BEER, PABST GENUINE DRAFT BEER and
PABST ICE BEER and any other beverage that is an extension thereof or is
reasonably related to the trade name or trade dress of the Trademarks brewed
from barley malt
and hops and other grains according to a secret process originated, owned and
possessed by Licensor;
2.3 "EFFECTIVE DATE" means November 7, 2003 or such other date as the
parties may agree upon;
2.4 "MINIMUM GUARANTEED ANNUAL TONNAGE (MGAT)" shall mean the amount of
production of Beverage using the Trademarks, as specified in Section 10.1 (b) 2,
required to be produced and shipped each Yearly Period.
2.5 "MINIMUM GUARANTEED ANNUAL ROYALTY PAYMENT (MGARP)" shall mean the
annual minimum royalty payment required to be paid by Licensee to Licensor each
Yearly Period, as set forth in Section 10.1 (b) 2.
2.6 "KNOW-HOW" means the confidential internal industrial experience of
Licensor gained in the production and bottling of said Beverage and includes,
without limitation, the recipes, parameters required for optimal working
conditions of said secret process, information as to the types and brands of
essential or preferred raw materials, and information on essential or preferred
equipment for carrying out said secret process; any extensions and/or renewals
thereof and any marks and logos.
2.7 "CONTRACTUAL TERM" means each ten year term under this Agreement.
2.8 "TERM OF THIS AGREEMENT" means the period from the Effective Date to
the "TERMINATION DATE", which for the purposes hereof shall mean November 6,
2013 (the "FIRST CONTRACTUAL TERM").
2.9 "TERRITORY" means the People's Republic of China; excluding therefrom
Hong Kong.
2.10 "TRADEMARKS" means the trademarks "PABST BLUE RIBBON", "Band HOP LEAF
Design", "COMBINATION OF PABST (in Chinese characters) BLUE RIBBON and Design &
HOP LEAF Design" and "PABST BLUE RIBBON and Design" for mineral water registered
in the Trade-marks Office in the People's Republic of China, under registration
numbers 559292, 559293, 559294 and 596190 and any extensions and renewals
thereof and any similar marks or logos;
2.11 "TRADE SECRET" means the secret process employed for the production
and bottling of said Beverage owned and possessed by Licensor;
2.12 "YEARLY PERIOD" means a twelve month period commencing on the
Effective Date of this Agreement.
2.13 For purposes of calculating royalties and volumes "LICENSEE" shall
mean INNO UP Limited and any and all sublicensees and manufacturers with whom
Licensee has contracted to manufacture Beverage, provided that there shall be no
duplication in calculating the volumes and royalties.
ARTICLE 3. MANUFACTURING LICENSE
3.1 Subject to the terms and conditions of this Agreement, Licensor hereby
grants to Licensee, for and during the first Contractual Term of this Agreement,
the sole,, exclusive, irrevocable, right and license to produce, market and
distribute the Beverage in the Territory from Licensee's breweries located in
the Territory, and to enter into sublicensing, manufacturing and/or distribution
agreements with other entities to produce and distribute the Beverage in any
part of or all of the Territory, under the Trademarks and using the Know-how and
Trade Secret but always subject to the terms of this Agreement.
3.2 Subject to the terms of this Agreement, Licensor covenants and agrees
that it shall not, during the currency of this Agreement and any extensions
thereof, grant any license whatsoever to any third party to produce, market, or
distribute Beverage in the Territory for any reason or purpose whatsoever.
ARTICLE 4. TECHNICAL ASSISTANCE
4.1 Licensor agrees to continually provide to Licensee, and Licensee
agrees to obtain from Licensor, the necessary Trade Secret and Know-how as
required or recommended in connection with Licensee's manufacture of the
Beverage at no cost to Licensee.
4.2 From time to time, for assurance and maintenance of the quality of the
Beverage, Licensee may request and Licensor at its discretion may provide, the
services and personal attendance of one or more of Licensor's experts (who is
currently Xxxxxx Xxxxxxxxx and an interpreter) for a limited time, and Licensor
agrees to provide such requested services and personal attendance of such
experts whenever requested upon reasonable written notice and Licensor shall pay
each expert's salary at the rate of the particular expert's then prevailing
salary level as well as such expert's reasonable traveling costs, accommodation
and meal expenses for the period in which such services are to be performed by
such expert. Nothing herein shall preclude Licensor from having one of its
representatives at all times in personal attendance at Licensee's various
brewing facilities during the term of the Agreement but at Licensor's cost.
ARTICLE 5. DISTRIBUTION
Licensor confirms and Licensee recognizes that Licensee has the exclusive
right to produce, market and distribute said Beverage in the Territory.
ARTICLE 6. QUALITY CONTROL AND ADVERTISING
6.1 All Beverages produced, bottled, stored and/or shipped by Licensee
pursuant to this Agreement shall be of the same kind, characteristics, and
quality as said Beverage produced and sold under said Trademarks by Licensor,
and Licensee shall make use of the technical assistance provided by Licensor
under Article 4 hereof. Licensee shall not deviate in any manner from Licensor's
reasonable directions or otherwise effect any material changes to said Beverage
without having obtained Licensor's prior written consent, upon full written
disclosure of all proposed changes by Licensee, which consent shall not be
unreasonably withheld or delayed.
6.2 Licensor shall have the right to inspect Licensee's brewing facilities
(irrespective of whether said facilities are owned or sublicensed by Licensee)
where the Beverage is being brewed, in the Territory upon reasonable prior
notice to ensure Licensee has adequate capacity, excellent hygiene and
cleanliness, a pure source of adequate clean water and adequate equipment
sufficient to meet Licensee's obligations hereunder and in accordance with the
food processing
ordinances of the People's Republic of China. Should said facility not meet
Licensor's standards, which standards are to be agreed upon in good faith by
Licensor and Licensee within thirty (30) days following the execution of this
agreement, Licensor shall instruct Licensee in writing as to necessary remedial
measures and Licensee shall have sixty (60) days to complete such remedial
measures, unless it is clear that the Licensee, through no fault of its own,
will be unable to complete such remedial measures within such sixty (60) day
period, in which case the Licensee shall have such additional time as is
reasonably required in order to complete same but in no event longer than 180
days following the written notice calling for remedial measures. Further,
Licensor, from time to time, shall have the right upon reasonable prior notice
to analyze and inspect brewing activities to ensure quality control and
conformity of the Beverage are being maintained.
6.3 Any acquisition of additional production or bottling facilities at
additional locations, whether by purchase or sublicense for the Beverage by
Licensee shall be subject to notice to the Licensor. In particular, Licensee
shall give Licensor sufficient written notice of any intended acquisition of a
production or bottling facility for the Beverage so as to give Licensor's
representatives, experts and designees sufficient time to inspect the premises
and facilities and to analyze samples of the newly produced or bottled Beverage
prior to any commercial production or bottling.
6.4 The purpose of the provisions of this Article and of any other
provision of this Agreement subjecting Licensee to any control or supervision by
Licensor is to assure the establishment and maintenance of the quality and
intended characteristics of produced and bottled Beverage for the protection of
the general public and Licensor's goodwill in its Trademarks and reputation.
Licensor recognizes that Licensee is an independent corporate entity, having its
own management, and except as limited herein, having absolute control and
unfettered discretion to produce, market, and distribute the Beverage in the
Territory.
6.5 (a) On a semiannual basis, Licensee shall submit to Licensor, at a
location to be designated by Licensor and at Licensee's expense, all advertising
done by Licensee during the prior six months and all proposed advertising copy,
which, at the time of submission, Licensee intends to use. Licensor shall have
the right to review and comment thereof. In the event that, in the reasonable
business judgment of Licensor, any such advertising may have a material adverse
effect on Licensor's goodwill in its Trademarks and reputation, Licensor shall
have the right to demand that Licensee cease using such advertising or not use
such advertising as proposed, as the case may be. Upon receipt of such notice,
Licensee shall take all steps reasonably necessary to cease the use or the
proposed use of such advertising. Additionally, Licensee shall submit all
packaging, labels, carton, containers, packing, wrapping and similar materials
to be used on or in connection with the Beverage ("Packaging Materials") as soon
as reasonably practicable in advance of the use thereof by Licensee, and, in any
case, in order to provide sufficient time for Licensor to complete its review
and for Licensee to implement requested modifications, if any. Thereafter,
Licensee shall submit to Licensor one production sample of each new line
extension of Beverage prior to the initial distribution thereof. Production
samples shall be submitted together with associated Packaging Materials for such
Beverage. Licensor shall have the right to require Licensee to make
modifications to Packaging Materials to the extent that Licensor, in the
exercise of its reasonable business judgment, concludes that such Packaging
Materials may have a material adverse effect on Licensor's goodwill in
Trademarks and reputation. Licensor shall advise Licensee of the reasons for
such disapproval and the actions, if any, which Licensee may take to obtain
Licensor's approval.
If Licensee sells any Beverage that does not meet the quality standards of
Licensor, Licensor may, together with other remedies available to it, by written
notice require such Beverage to be immediately withdrawn from the market. Any
modification of the Beverage must be submitted in advance for Licensor's written
approval, which approval shall not be unreasonably withheld.
(b) Licensee agrees to make available at no charge to Licensor, as and
when requested by Licensor, one production sample of Beverage from time to time
for the purpose of comparison with earlier samples or to test for compliance
with applicable laws and standards and to permit Licensor upon reasonable
request to inspect Licensee's manufacturing operations and testing records (and
those of its sub-licensee manufacturers, if any) for the Beverage. Licensor's
approval hereunder shall not be construed as Licensor's agreement that the
Beverage complies with applicable laws and standards. Such determination is
solely the responsibility of Licensee.
(c) The Beverage manufactured and distributed by Licensee must conform in
all respects to production samples approved by Licensor. If in Licensor's
reasonable judgment the quality of the Beverage originally approved has
deteriorated in later production runs, or if the Beverage has otherwise been
altered, Licensor may, in addition to other remedies available to it, by written
notice to Licensee, require such Beverage to be immediately withdrawn from the
market.
(d) On every carton, label, can, keg, bottle or other container for said
Beverage produced and bottled pursuant to this Agreement, Licensee will use or
cause others to use the Trademarks "Pabst", "Blue Ribbon" or "Pabst Blue Ribbon"
accompanied by the (R) symbol, as appropriate, or such other notice as
reasonably required by Licensor and such carton, label, can, keg, bottle or
other container of said Beverage shall contain the following wording in English
or Chinese: "Brewed under License from Pabst Brewing Company, USA" or similar
labeling that complies with Chinese trademark labeling laws.
(e) Licensee shall not alter or modify the Licensed Trademarks in any
manner.
6.6 Licensor and Licensee shall meet at mutually acceptable times during
each year at a venue mutually convenient to them, at which time Licensee shall
provide Licensor with its report on (1) consumer acceptance and reaction with
respect to the various Beverages manufactured and sold by Licensee; (ii) current
market conditions for sales of Beverage; (iii) competition and current activity
of competitors; (iv) Licensee's pricing strategy; and (v) any other information
which may be reasonably requested by Licensor related to the manufacturing,
advertising, and distribution of the Beverage in the Territory.
6.7 Licensee will use its commercially reasonable efforts to produce,
market and distribute the Beverage in the Territory during the term of this
Agreement, including, without limitation, Licensee agrees to use its
commercially reasonable efforts to promote the sale of the Beverage, shall
refrain from any unfair trade practices or other activities detrimental to
Licensor's goodwill or reputation. In addition, Licensee agrees that it will not
do any act to contravene Licensor's rights or take any action which would in any
way defeat or diminish the commercial value of the Licensor's Trademarks in the
Territory.
6.8 The submissions required to be made by Licensee pursuant to the
provisions of this Article 6 shall be sent to Licensor twenty (20) days prior to
the anticipated date(s) of commercial production. If Licensor fails to respond
within the five (5) days of receipt of the
submitted items, then Licensee shall give Licensor an additional five (5) days
notice within which to respond. If Licensor fails to respond then the artwork
and other submissions shall be deemed approved.
ARTICLE 7. TRADEMARKS
7.1 Licensor represents to Licensee that Licensor or its grantees or
licensees possess registrations or other protection of said Trademarks and said
Trademarks are valid and enforceable Trademarks and Licensor has the sole right
to use them in the Territory. Licensee covenants to refrain from infringing or
diluting said Trademarks, using trademarks that are confusingly similar to the
trade dress of Trademarks for the sale of other malt beverages or taking any
action which would challenge Licensor's registrations or rights to use said
Trademarks in the Territory. If Licensor in its reasonable opinion determines
that Licensee is engaging in such activity, Licensor shall instruct Licensee in
writing as to necessary remedial measures and Licensee shall have thirty (30)
days to cease its infringement or dilution of Licensor's Trademarks, Trade
Secrets or trade dress. If Licensee fails to complete such remedial measures
within such thirty (30) days Licensor may terminate this Agreement effective
upon thirty (30) days written notice. Licensee shall cause the Guangdong Blue
Ribbon Group to eliminate or modify infringing characteristics on its malt
Beverage products and packaging listed on Exhibit A, within ninety (90) days
following the effectiveness of this Agreement. Licensee shall, within ninety
(90) days of the execution of this Agreement, also cause the Guangdong Blue
Ribbon Group to cease the production of or the sublicense or assignment for
production to third parties, of any malt beverage products that were not
produced and commercially available on February 28, 2003. Nothing herein
contained shall prevent Guangdong Blue Ribbon Group from continuing to utilize
its existing logo and trademark on malt beverage products that are commercially
available as of February 28, 2003. For purposes of clarification and certainty,
Licensor and Licensee have attached Exhibit B which lists those Guangdong Blue
Ribbon Group malt beverage products that were being produced and commercially
available on February 28, 2003. As long as Licensee or any affiliate or parent
entity owns directly or indirectly through a parent or an affiliate entity a
controlling interest in Guangdong Blue Ribbon Group, Licensee shall warrant and
represent that Guangdong Blue Ribbon will not introduce any new malt beverage
product lines or extensions of existing products listed on Exhibit B.
7.2 Licensor represents to Licensee and Licensee recognizes that Licensor
or its grantees or licensees possess registrations or other protection of said
Trademarks in jurisdictions other than within the Territory and that none of
such registrations or other trademark rights in other jurisdictions are licensed
to Licensee under this Agreement or otherwise.
7.3 Unless terminated earlier under any other provision of this Agreement,
the license granted to Licensee herein to use said Trademarks shall terminate
upon final expiration of Licensor's rights in and to said Trademarks in the
Territory. Notwithstanding the preceding sentence, Licensor covenants and
agrees that it shall take all reasonable and necessary steps to preserve its
rights in and to the said Trademarks (it being acknowledged and agreed by
Licensor that the license granted to Licensee hereunder to use the Trademarks is
intended to subsist for the Term of this Agreement), including, without
limitation, preserving the registrations in and to the Trademarks in the
Territory if any, including attending to the renewal of the registration of each
of said Trademarks in the Trade-marks Offices in China.
7.4 In respect to any manufacturing agreements entered into by Licensee
with manufacturers in the Territory for the production and/or distribution of
Beverage, Licensee is
hereby appointed the agent of Licensor for the sole and limited purpose of
overseeing the use of the Trademarks during the manufacturing process on behalf
of Licensor, and, in such capacity, shall supervise the manner in which the
Trademarks are being used in order to control the quality of the Beverage
produced under the Trademarks.
7.5 The Trademarks have been registered by Licensor with the Chinese
Trademarks Office. Licensee will itself and will use its commercially reasonable
efforts to ensure that its manufacturers will refrain from any acts, conduct or
omissions which would jeopardize the maintenance of such registrations in full
force and effect during the term of this Agreement, or so long as protected by
applicable law, whichever is shorter.
7.6 Neither Licensee, its parent nor any subsidiary or affiliate of
Licensee will register or attempt in any country to register copyrights in, or
to register as a trademark, service xxxx, design patent or industrial design any
of the Trademarks or derivations or adaptations thereof, or any word, symbol or
design which is so similar thereto as to suggest association with or sponsorship
by Licensor or any affiliate of Licensor. In the event of breach of the
foregoing, Licensee agrees, at Licensee's expense and at Licensor's request,
immediately to terminate the unauthorized registration activity and promptly to
execute and deliver, or cause to be delivered, to Licensor such assignments and
other documents as Licensor may require, to transfer to Licensor all rights to
the registrations, patents or applications involved.
7.7 Licensee agrees that it will not use either the Trademarks, the
Know-how, the Trade Secrets, or the trade dress of Licensor or any other
material which is owned by Licensor in any way other than as herein authorized.
In addition to any other remedies Licensor may have, Licensee agrees that the
profits from any use thereof on products other than the Beverage (unless
authorized by Licensor in writing,) and all profits from the use of any other
copyrighted material of Licensor without written authorization, shall be payable
to Licensor.
7.8 Licensee agrees not to use any Trademarks or any trademark
incorporating all or any part of the Trademarks on any business sign, business
cards, stationery, or forms (except as licensed herein in connection with the
manufacture, promotion and sale of the Beverage) or to use any Trademark or any
parts thereof as the name of its business or any division thereof which may in
any way dilute Licensor's Trademarks, unless otherwise agreed by Licensor in
writing. Licensee may submit business cards, signs, stationary, or forms for
Licensor's review. If Licensor fails to respond within five (5) days of the
receipt of these items, Licensee shall give Licensor an additional five (5) days
within which to respond. If Licensor fails to respond within this additional
time, the submitted items shall be deemed approved.
ARTICLE 8. SECRECY
8.1 Licensor hereby represents and warrants to Licensee and Licensee
recognizes that Licensor is the owner of the Trade Secret and Know-how, and that
said Trade Secret exists and is secret and that said Know-how is valuable and
confidential. Licensee covenants to refrain from, and to use its commercially
reasonable efforts to prevent any disclosure of any part or aspect of said Trade
Secret and of said Know-how to any distributor or any other person in any manner
which could impair its secrecy and confidentiality, respectively, and the
commercial value ()f said "Trade Secret and Know-how.
8.2 Without restricting the generality of the foregoing Licensee shall:
(a) Limit any disclosure of said Trade Secret and said Know-how to
only those of its employees and or consultants who have an actual need to know
such Trade Secret or Know-how in the performance of their duties and of this
Agreement;
(b) Keep all data and records concerning said Trade Secret and
Know-how and all yeast embodying the Trade Secret secure against access by
unauthorized personnel or third persons.
(c) Return to Licensor all data and records concerning said Trade
Secret and Know how in such a manner as to preserve their secrecy upon
termination of this Agreement.
(d) If required by Licensor, Licensee shall obtain from each of its
employees, agents, suppliers or contractors exposed to said Trade Secret and
Know-how execution of a secrecy agreement, and shall diligently inform Licensor
of any breach of such secrecy agreement, of which it becomes aware, by any
employee, agent, supplier or contractor.
8.3 Licensee recognizes that Licensor or its grantees or licensees possess
valuable rights in said Trade Secret and Know-how in jurisdictions other than
the Territory and that none of such rights in such other jurisdictions are
licensed to Licensee under this Agreement or otherwise. In particular, Licensee
covenants that it will refrain from infringing any Trade Secret or Know- how
right in any such other jurisdiction.
8.4 To preserve the integrity of Licensor' s name and product, Licensee
covenants that it will refrain from using said Trade Secret or any of said
Know-how in the production or bottling of any beverage or other product which is
not a Beverage within the definition of this Agreement and which is not sold
under said Trademark.
8.5 Licensee's duty hereunder to preserve the secrecy and confidentiality
of all material elements of said Trade Secret and Know-how and Licensee's duties
and Licensor's rights under Section 8.2(d) shall survive any cessation of any
license herein granted and any termination of this Agreement and shall endure
until said Trade Secret has become a matter of general knowledge in the brewing
trade, through no fault of Licensee.
8.6 Licensee's obligations of secrecy hereunder shall not include or apply
to any information which Licensee can demonstrate was published in the open
literature or otherwise publicly known without Licensee's knowledge or which was
known to it prior to disclosure by Licensor or which becomes published or enters
into the public domain through no act, omission or fault of Licensee or is
disclosed to Licensee by a third party having a right to make such disclosure
without an obligation of confidence.
8.7 Licensee shall refrain from continuing to use or using said Trade
Secret or any of said Know-how in the production, bottling, canning or kegging
of any Beverage or other product after expiration of this Agreement.
ARTICLE 9. LEGAL REQUIREMENTS
9.1 Licensee shall strictly observe and comply with all relevant laws and
regulations to which it is subject concerning said Beverage and its raw
materials, production, bottling, storage, transport, labeling, designation
and/or the disposition of used bottles or other containers. In the event that
said Beverage or any direction issued, or requirement made, in respect thereto
by Licensor, or any label, designation or other information should fail to
comply with or should be contrary to any relevant law or regulation, Licensee
shall so inform Licensor, giving to Licensor, so far as Licensee is able to
under applicable law or regulation, an opportunity to assist Licensee in
bringing about compliance prior to exposure to damage, liability or penalty.
9.2 Licensee shall have no claim against Licensor for any loss, cost or
expense including, without limitation, injury to or death of any person or
persons arising in any manner out of any product liability claims which may be
filed against Licensee or Licensor alleging any defect in the Beverage of any
nature arising directly from Licensee's production, sale and/or distribution of
such Beverage. Licensee further agrees to defend, indemnify and save Licensor
harmless from and against any and all claims, losses, costs, expenses or suits,
including attorney fees, arising in any manner out of the negotiation,
assignment, transfer, or cancellation of this Agreement to Licensee from Noble
China and Licensee's production, sale and/or distribution of the Beverage under
this Agreement, it being the intent hereof that Licensee shall be fully
responsible for resolution of any and all such claims to the satisfaction of the
party making the claim at Licensee's sole cost and expense and that Licensor
shall not be put to nor suffer any costs, loss or expense whatsoever in
connection therewith regardless where such claim is made and adjudicated.
9.3 Licensee warrants that immediately preceding the effectiveness of this
Agreement, it shall provide to Licensor a duly executed general release and
indemnity agreement in form and substance satisfactory to Licensor by Noble
China including all necessary resolutions duly adopted by the Noble China board
of directors releasing Licensor from any and all past, present, and future
liability on any and all claims relating or referring to the transfer or
assignment or granting of the Noble China License to the Licensee or its
assignees regardless in what part of the world the claims are brought. Further,
Licensee warrants and represents that it shall provide to Licensor immediately
preceding the effectiveness of this Agreement, appropriate resolutions from
Noble China, to the satisfaction of Licensor, attesting and certifying to the
appropriateness of the cancellation, assignment or grant of the Noble China
-Pabst May 26, 1999 Manufacturing License Agreement to the Licensee and
releasing any and all right, title and interest and any and all claims that
Noble China may have as a result of Licensor canceling, assigning or granting
this Agreement to the Licensee or its assignees.
9.4 In the event Licensor is served with process or claims are made
against it related to or arising from matters which are the subject matter of
this Agreement, Licensor shall notify Licensee of any such claims as soon as
practicable but in no event later than fifteen (15) business days of receiving
notification thereof and shall allow Licensee or its insurer, if any, the
opportunity to assume direction and control of the defense and/or settlement of
any such suit or claim, using counsel of Licensee's or its insurer's selection,
which counsel shall be reasonably satisfactory to Licensor. Licensor shall use
all reasonable efforts to cooperate with Licensee and its insurer in the
disposition of any such claim or suit defended by Licensee or its insurer, if
any, upon request and Licensee agrees to pay all reasonable and necessary fees
and costs including attorneys fees reasonable incurred by Licensor in connection
with the service of process and related litigation. In the event Licensor
experiences any increases in its general liability insurance premiums by reason
of activities arising from or related to the subject matter of this Agreement,
Licensee shall, upon thirty (30) days written notice, pay the incremental
difference of the Licensor's insurance premiums attributed to any claims arising
from this Agreement.
ARTICLE 10. REMUNERATION
10.1 In consideration of Licensor's granting Licensee the rights and
licenses hereunder, Licensee agrees to pay to Licensor
a. the sum of (i) US$200,000 upon the execution, but subject to
refund in the event this Agreement does not become effective and (ii)
$200,000 upon the effectiveness and delivery by Licensor of this Agreement
as and for an administrative fee for the costs and expenses of Licensor in
connection with this Agreement and the amounts due Licensor for certain
brewing equipment. Licensor also hereby irrevocably assigns to Licensee all
its right, title, and interest to any and all refunds due and owing to it
by the Financial Bureau of the City of Zhaoqing, as set forth in the two
memoranda dated August 7, 2001 to Zhaoqing Blue Ribbon Brewery, Noble Ltd.
and High Worth and shall execute appropriate documents to vest Licensee
with title to the rights to the tax refunds. Licensor shall execute a
release in the form satisfactory to Licensee which releases Licensee from
any claims of Licensor as of the date of the execution of this Agreement,
save and except (i) claims as to which Licensor has no knowledge (ii)
royalties due under the license agreement between Licensor and the Blue
Ribbon Group that expires on November 7, 2003, and (iii) claims, if any,
arising from the assignment, transfer, or cancellation of the May 26, 1999
Manufacturing License Agreement between Noble China, Inc. and Licensor.
AND
b. an annual royalty fee as follows:
1. On the first 100,000 tonnes of Beverage produced during a Yearly
Period, Licensee shall pay Licensor a royalty of US $16.00 per tonne. For
annual production of Beverage over 100,000 tonnes in a Yearly Period,
Licensee shall pay a royalty of U.S. $14.00 per tonne for all tonnes over
100,000.
AND
2. As and for additional consideration for the grant of the License
hereunder, Licensee shall produce the minimum guaranteed tonnage and pay
Licensor a minimum guaranteed annual royalty payment during the First
Contractual Term of this Agreement or on the Second and Third Contractual
Terms as outlined below, in U.S. dollars by wire transfer and Licensee
represents and warrants that it will produce and ship the following annual
minimum tonnes of Beverage during the First Contractual Term hereof and
cacti Contract Term:
--------------------------------------------------------------
Contract Term Minimum Minimum
------------- ------- -------
On a proportional sharing Guaranteed Guaranteed
-------------------------- ---------- ----------
basis in accordance with the Annual Royalty Annual Tonnage
---------------------------- -------------- --------------
actual tonnages assigned by Payment (MGAT)
---------------------------- ------- ------
the Marketing Company (MGARP)
--------------------- -------
--------------------------------------------------------------
Year's 1 to and including 10 US $1,780,000 110,000
First Contractual Term
--------------------------------------------------------------
Years 11 to and including 20 US $1,920,000 120,000
Second Contractual Term
--------------------------------------------------------------
Years 21 to and including 30 US $2,060,000 130,000
Third Contractual Term
--------------------------------------------------------------
10.2 All royalties payable by Licensee hereunder shall be in U.S. Dollars
(less any sums collected by Licensee for and on behalf of any duly constituted
governmental authority on account of taxes imposed on royalties generated by the
activities contemplated by this Agreement, provided that said taxes are imposed
similarly on all other licensors similarly situated) and shall be payable
quarterly, in arrears, within 30 days of the end of each calendar quarter in
respect to which the payment is being made. Licensee shall pay the balance of
the Minimum Guaranteed Annual Royalty Payment in the fourth quarter of each
calendar year in the event that its actual royalty payments in the preceding
three quarters when added to the fourth quarter of actual royalties paid to
Licensor is less than the Minimum Guaranteed Annual Royalty Payment (The True-up
Quarter). If Licensee shall fail to pay any royalty when due and payable
hereunder, Licensor shall be entitled to (i) a late fee payable upon demand
equal to ten (10) percent of the amount due plus (ii) interest at the rate of 3
% over the 6 months' LIBOR rate on all amounts more than 15 days past due.
ARTICLE 11. REPORTING
11.1 Licensee shall communicate its quarterly production and sales figures
of said Beverage to Licensor irrespective of where the Beverage is manufactured,
so as to be received by Licensor no later than prior to the end of the month
following the quarter to which the figures pertain.
11.2 At the request of Licensor, Licensee shall furnish whatever additional
information Licensor may reasonably request or prescribe from time to time to
enable Licensor to ascertain compliance by Licensee of all material provisions
of this Agreement.
11.3 Licensee shall keep complete and accurate records with respect to any
and all Beverages produced, including any and all Beverages bottled, canned or
kegged, and any and all Beverages sold. Licensor shall have the right through
its representatives to examine and audit, at reasonable times and intervals
during business hours upon reasonable notice, all such records and
such other records and accounts as may under recognized international accounting
practices containing information bearing upon the amount of the royalty payable
by Licensee, and to make proper inspections or investigations in this respect.
Licensee shall retain such records for a period of four (4) years from the date
the record was first generated.
ARTICLE 12. TERM
12.1 Provided that Licensee (i) has manufactured during the first nine (9)
years of the First Contractual Term 110,000 tonnes annually, and paid the
minimum guaranteed annual royalties of US $1,780,00, (ii) has paid all royalty
payments when due, and (iii) as of the date that Licensee provides written
notice to Licensor of its intent to renew the Agreement, Licensee is not in
breach of any of the provisions of this Agreement, this Agreement and the
licenses granted hereunder shall be renewed for an additional term of ten (10)
years (the "Second Contractual Term"), unless Licensee shall have delivered to
Licensor written notice of intent to terminate not less than twelve (12) months
prior to the expiration of the First Contractual Term.
12.2 Provided that Licensee (i) has manufactured during the first nine (9)
years of the Second Contractual Term 120,000 tonnes annually, and paid the
minimum guaranteed annual royalties of US$1,920,000, (ii) has paid all royalty
payments when due and (iii) as of the date that Licensee provides written notice
to Licensor of its intent to renew the Agreement for another ten (10) year term,
Licensee is not in breach of any of the provisions of this Agreement, this
Agreement and the licenses granted hereunder shall be renewed for an additional
term of ten (10) years (the "Third Contractual Term") unless Licensee shall have
delivered to Licensor written notice of intent to terminate not less than twelve
(12) months prior to the expiration of the Second Contractual Term.
12.3 Licensee may exercise the rights granted to it under Sections 12.1 and
12.2 above if at the time of the exercise of the rights it has cured all of the
outstanding breaches, if any, under this Agreement.
ARTICLE 13. TERMINATION
13.1 Licensor has the right to terminate or elect not to renew this
Agreement, but shall not be obligated to terminate this Agreement or elect not
to renew this Agreement, if Licensee fails to produce and sell the Minimum
Guaranteed Annual Tonnage (MGAT), as specified in Section 10.1 (b) 2. above in
any two (2) consecutive years, commencing with Year 1 of the First Contractual
Term. If Licensor elects to terminate this Agreement because of failure to
produce and sell the MGAT, then Licensor shall give Licensee written notice of
termination to Licensee, and Licensee shall pay the MGARP prorated to the date
of notice of termination.
13.2 If either party to this Agreement shall fail to fulfill one or more of
its material obligations under this Agreement, including Licensee's failure to
pay the royalties when due, the other party, if not itself in default or on
notice regarding breach of a material obligation, in addition to and/or
independently of any other remedies that it may have, may at any time terminate
this Agreement, by not less than sixty (60) days written notice ("Cure Notice")
in any case specifying the breach, unless within such sixty (60) day cure period
all breaches specified in the notice shall have been remedied. This Agreement
shall terminate upon the expiration of the cure period if the party as to whom
the Cure Notice was addressed, failed to cure the defaults specified in the Cure
Notice.
13.3 In the event Licensee is adjudicated a bankrupt, or a receiver of
Licensee is appointed and qualifies, or Licensee is admitted to the benefits of
any other court procedure for the settlement of debts, Licensor may (in addition
to all other rights and remedies it may have) terminate this Agreement and all
of its further obligations hereunder, by giving ten (10) days' advance notice in
writing to Licensee or its representative.
13.4 In the event of the direct or indirect acquisition of more than fifty
percent (50%) of the voting rights in Licensee ("Voting Rights Acquisition") by
any person, company, partnership or entity unaffiliated with Licensee without
the prior written approval of Licensor, which approval shall not be unreasonably
withheld or delayed, Licensor shall have the right to terminate this Agreement
by giving (60) days' advance notice in writing to Licensee. Licensee shall give
written notice to Licensor of any such proposed Voting Rights Acquisition,
providing sufficient details so that Licensor may satisfy itself that the rights
of Licensor hereunder, specifically that the payment of royalties by Licensee to
Licensor hereunder, will not be materially jeopardized as a consequence thereof.
For the purposes of this Section 13.4, it shall be reasonable for Licensor to
withhold its approval to such Voting Rights Acquisition if, and only if,
following its review of any such Voting Rights Acquisition, Licensor, acting
reasonably and in good faith, reaches a conclusion, as shown by documentation or
other evidence sufficient to establish or support such a conclusion, that the
payment of royalties by Licensee, following any such acquisition, will be
materially jeopardized and prevent it from meeting its obligations under this
Agreement.
13.5 In the event Licensee shall collude with another to infringe any
Trademark, Trade Secret, or trade dress, licensed herein or shall knowingly
derive any benefit from another's infringement or dilution of any Trademark,
Trade Secret, or trade dress licensed herein or from another's act of unfair
competition with respect to the Beverage, Licensor, in addition to any other
legal remedies, shall have the option to terminate this Agreement upon thirty
(30) days' written notice.
13.6 Licensee's breach of any of the provisions of Article 6 of this
Agreement shall constitute grounds for termination of the Agreement upon sixty
(60) days written notice.
13.7 The early termination of this Agreement pursuant to this Article 13
shall not affect any accrued rights or obligations of the parties hereto as of
the effective date of such termination, including any accrued MGARP owed by
Licensee to Licensor hereunder, nor shall it affect any rights or obligations of
the parties under this Agreement which are intended by the parties and agreed
herein by them to survive any such termination, especially the secrecy
provisions of Article 8, above.
ARTICLE 14. LICENSOR UNDERTAKINGS
14.1 Licensor represents and warrants as follows:
(a) Licensor is the exclusive owner of the Trademarks, the Trade
Secret, the Know-how, and all rights related to any of them; Licensor or its
grantees or licensees possess registrations or other protection of said
Trademarks, Trade Secret, Know how and said Trademarks, Trade Secret and
Know-how are valid and enforceable and in good standing, and Licensor has the
sole right to use the Trademarks, Trade Secret and Know-how, subject to the
licenses, sub-licenses or other rights granted to others to use same in areas
outside the Territory;
(b) Except for the License Agreement granted to Pabst Blue Ribbon
(Zhaoqing) Co. Ltd., which shall expire on November 7, 2003, and that certain
Manufacturing License Agreement between Licensor and Noble China, Inc. dated May
26, 1999, Licensor has not granted and shall not grant to any other person or
firm any of the licenses and rights which are granted hereunder to Licensee;
(c) Licensor has the right, power and authority to enter into this
Agreement and to grant to Licensee the licenses and rights purported to be
granted to Licensee hereunder and Licensee, except as otherwise limited
hereunder, shall be vested with all right and authority to enjoy the unfettered
use of the Trademarks, the Trade Secret and the Know-how. The Licensor shall
take all necessary action to preserve and maintain its title and ownership in
the Trademarks, the Trade Secret and the Know-how;
(d) The Trademarks have been registered by Licensor with the Chinese
Trademarks Office. Licensor will refrain from any acts, conduct or omissions
which would jeopardize the maintenance of such registrations in full force and
effect during the term of this Agreement or so long as permitted by applicable
law, whichever is shorter;
(e) Licensor has no present knowledge of any patent, copyright,
trademark, trade secret or license of other property right of any other person
or firm, which would be infringed by the grant of the licenses. Licensor
represents and warrants that the Trademarks or any ideas, designs or suggestions
given to Licensee hereunder will not infringe the commercial or industrial
property rights of third parties in the Territory save and except the Guangdong
Blue Ribbon Group; and
(f) Licensee shall promptly send written notice to Licensor of any
trademark infringements which come to its attention. Such notice shall specify
the facts available to Licensee of the alleged infringement or other unfair
competition and such other evidence as Licensee is able to supply.
14.2 Subject to Licensor's prior written notice, Licensee shall have the
exclusive right, in its sole and absolute discretion to commence proceedings or
undertake any action to challenge, oppose and litigate all unauthorized uses or
attempted uses by others, or any uses which constitute passing off or
infringement of the Trademarks or the Trade Secret, the Know-how or any and all
licenses granted hereunder to Licensee, or to take such other steps or
proceedings as may be considered necessary by it in order to terminate any such
unauthorized, infringing or improper use of the Trademarks, the Trade Secret
and/or the Know-how by others. In the event that Licensee does commence
proceedings or undertake any action to challenge, oppose or litigate, as
aforesaid, Licensor, at no cost to Licensor, shall fully cooperate with Licensee
and execute any and all documents and do such acts and things as in the
reasonable opinion of Licensee may be necessary. Notwithstanding the foregoing,
at the request of Licensee, Licensor shall at Licensee's expense diligently
challenge, oppose or prosecute any person or firm who unlawfully or improperly
makes or attempts to make such unauthorized use of the Trademarks, Trade Secret
or Know-how, in the event Licensee's sale of the Beverage is materially impaired
by that unauthorized use.
ARTICLE 15. CONFIDENTIALITY AND PUBLIC NOTICES
Except as may be required by applicable law (including, without
limitation, applicable securities laws and the rules and regulations of any
stock exchange on which either Licensor's or Licensee's securities are listed),
the parties shall keep the existence and
contents of this Agreement strictly confidential. All public notices to third
parties, including the press and employees of Licensor and Licensee, and all
other publicity concerning the transactions contemplated by this Agreement shall
be jointly planned, coordinated and agreed upon in advance by Licensor and
Licensee.
ARTICLE 16. MISCELLANEOUS
16.1 In the event that any provision, term, condition or object of this
Agreement may be in conflict with any law, measure, ruling, court judgment (by
consent or otherwise), or regulation of the government of China or of any
political subdivision thereof, or of the government of the United States of
America, or of any political subdivision thereof, and the legal counsel of
either party shall advise that in their considered opinion such conflict, or a
reasonable possibility of such conflict exists, then either party may propose to
the other appropriate modifications of the allegedly offending provision, term,
condition or object to avoid such conflict. In such case, if an agreement or
modification is not reached within sixty (60) days, the offending provision,
term, condition or object shall be cancelled, but the remaining part of this
Agreement shall be preserved to the fullest possible extent, if this can be done
without frustration of the purpose of this Agreement, giving due consideration
to all lawful provisions, terms conditions and objects of this Agreement.
16.2 It is the intent of the parties that the preceding Section 16.1 and
any other part of this Agreement shall be governed by the principle of
severability permitting invalidation of any provision, term, clause or section
for illegality without impairment of the lawful remainder of this Agreement
which shall remain in full force and effect.
16.3 Nothing in this Agreement shall be construed to permit or entitle
Licensee to use said Trademarks, any subsisting Trade Secret, any confidential
Know-how, any trade dress, any get-up or any notice referring to Licensor,
beyond the termination of this Agreement or of the particular Trademark or Trade
Secret license, except that, if such termination is not due to Licensee's fault,
Licensee shall have a period of one hundred eighty (180) days in which to sell
all Beverage produced prior to such termination, or prior to the particular
notice of termination, if earlier, provided further production of said Beverage
shall have ceased promptly after such termination or notice of termination.
16.4 The waiver by either party of any right or the failure by either party
to exercise any power hereunder shall not be deemed as a waiver of any other
right or power of such party hereunder whether of a similar nature or otherwise.
16.5 Licensor and Licensee have no intent to establish by this Agreement or
otherwise any agency, partnership, joint ventureship, or other affiliation.
Neither party shall make any representation or engage in any conduct contrary to
this fact.
16.6 This Agreement sets forth the entire understanding of the parties as
to the subject matter of this Agreement and merges all prior discussions between
them. Neither of the parties shall be bound by any condition, definition,
warranty or representation with respect to the subject matter of this Agreement,
other than as expressly provided in this Agreement or as duly set forth
subsequent to the date hereof in a writing signed by a duly authorized
representative of the party to be bound thereby.
16.7 Each party shall on such terms as are compatible with the tenor and
provisions of this Agreement be excused for temporary interruptions in its
performance due to strikes, or other labor difficulties, fire, explosion,
similar casualty, riots, civil disturbances, acts of terrorism, or an act of
God, or any other event or occurrence not enumerated herein which is beyond the
control of the party seeking to be excused, provided the excused party shall in
writing notify the other party immediately of the particular interruption and
its cause and shall immediately and continuously exercise best efforts to remedy
the interruption as promptly as possible.
16.8 Unless otherwise provided herein, all notices required hereunder to be
given by either party to the other shall be in writing and shall be given by
telecopier and regular U.S. mail, postage prepaid, or overnight delivery (such
as Federal Express) addressed to the party upon which such notice is directed at
the addresses set forth below, or to such changed address as may be specified
from time to time in writing by either party. Notices sent via registered mail
shall be deemed received ten (10) business days after mailing and if via
overnight delivery, shall be deemed received on the second business day after
mailing.
Licensor: PABST BREWING COMPANY
Attn: President and CEO
000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx, 00000 X.X.X.
Telecopier No. (000) 000-0000
Licensee: INNO UP LIMITED
Attn: President and CEO
23/F., Hang Seng Causeway Bay Building
00 Xxx Xx Xxxxxx
Xxxxxxxx Xxx
Xxxx Xxxx
Telecopier No. 852 2866 7409
with copy to: Xxxxx X. Xxxxxxxx
------------ Loeb & Loeb LLP
00000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Telecopier No. (000) 000-0000
16.9 Any provision to this Agreement to the contrary notwithstanding is
expressly acknowledged and agreed by both Licensee and Licensor that this
Agreement may not be assigned by Licensee without the prior written consent of
the Licensor, which consent shall not be unreasonably withheld. Subject to the
foregoing, this Agreement shall be binding upon the parties hereto and their
respective successors and assigns.
16.10 The parties hereto shall execute and deliver such further documents
and assurances and do such further acts and things as may be required to give
full effect to the provisions of this Agreement.
16.11 This Agreement sets forth the entire agreement between the parties
with respect to the subject matter hereof, and may not be modified or amended
except by written agreement executed by the parties hereto.
16.12 In any interpretation of this Agreement, it shall be deemed as the
Agreement made jointly by the parties, and no ambiguities shall be construed or
resolved against either party on the premise or presumption that such party was
responsible for drafting this Agreement.
16.13 The general representations and warranties made hereto by the parties
shall survive the execution date of this Agreement, and the secrecy provisions
shall survive the termination or expiration of this Agreement.
16.14 Licensee acknowledges and agrees that an infringement or misuse of
the Trademark, Tradename, Know-how or trade dress in violation of this Agreement
would cause irreparable harm to Licensee that could not be adequately redressed
by payment of monetary damages. Accordingly, Licensee hereby agrees that, in the
event of such violation, injunctive relief may be entered against it in order to
take certain affirmative actions or cease and desist from certain actions.
16.15 All disputes arising in connection with this Agreement shall be
finally settled under the Rules of Conciliation and Arbitration of the
International Chamber of Commerce by a single arbitrator. The place of
arbitration shall be Los Angeles, California, USA. The English language shall be
used for all proceedings and documents presented during arbitration.
ARTICLE 17. APPLICABLE LAW
The making, interpretation, construction, performance and enforcement
of this Agreement shall be governed by the substantive and procedural internal
law of the State of California, United States of America.
ARTICLE 18. MATTERS RELATING TO RIGHTS OF FIRST DISCUSSION
18.1 Right of First Discussion-Expanded Territory. During the term of this
Agreement and any extensions thereof, Licensor if in its sole discretion decides
to introduce the Beverage in the Expanded Territory, may engage in a discussion
with Licensee regarding distribution and manufacturing rights for Beverage in
Indonesia, Singapore, Malaysia, North Korea, Thailand, Cambodia, Burma, Taiwan,
Vietnam and the Philippines (Expanded Territory) but Licensor will participate
in such a discussion only if Licensee is not otherwise in breach of this
Agreement and is current in the payment of the MGARP at the time such
discussions are to occur, it being understood that Licensor has no obligation to
engage in such discussions nor to grant such Expanded Territory to Licensee.
18.2 Right of First Discussion-Expanded Beverages. In the event that
Licensee, in the 180 days immediately following the effectiveness of this
Agreement, desires distribution and manufacturing rights to the Olympia label in
the Territory, Licensor and Licensee may engage in such discussions if Licensee
is not otherwise in breach of this Agreement and is current in the payment of
the MGARP at the time such discussions are to occur. These discussions to be
held pursuant to this Section 18.2 may be cancelled for any reason, by Licensor
giving Licensee thirty (30) days written notice. The rights of discussion for
the expanded beverage shall automatically
terminate 180 days from the Effective Date of this Agreement unless extended by
the written agreement of the parties.
18.3 Right of First Discussion-Extended Term. If, not less than 12 months
prior to the expiration of the Third Contractual Term, Licensee provides written
notice to Licensor that Licensee is interested in extending the term of this
Agreement and if Licensee is otherwise in compliance with the terms of the
Agreement, then Licensor and Licensee shall engage in discussions to extend this
Agreement beyond the Third Contractual Term, it being understood that Licensor
has no obligation to grant an extension to Licensee beyond the Third Contractual
Term.
ARTICLE 19. MATTERS RELATING TO CONDITIONS TO EFFECTIVENESS
19.1 This Agreement shall not become effective until the occurrence of
the following events:
A. Licensee provides to Licensor duly adopted resolutions by the
Board of Directors of Noble China, Inc. and a separate agreement (the Release
and Indemnity Agreement) to the satisfaction of Licensor releasing and
indemnifying Licensor from any and all past, present, and future liability on
any and all claims related or referring to the transfer or assignment or
cancellation of the Noble China License Agreement dated May 26, 1999 to the
Licensee. The Release and Indemnity Agreement shall contain among other
provisions, substantially the following language: "Noble China, Inc, hereby
releases and indemnifies Pabst Brewing Company, Inc., (Pabst) from any and all
past, present, and future liability on any and all claims related or referring
to the negotiation of a new license agreement, or the transfer, or assignment of
the May 26, 1999 Manufacturing License Agreement to Licensee or the cancellation
of the said agreement (collectively, the May 26, 1999 Agreement Transaction).
Further, Noble China, Inc., hereby releases and indemnifies Pabst from any and
all claims, demands, debts, accounts, contracts, liabilities, actions and causes
of action arising under or from or in connection with the May 26, 1999 Agreement
Transaction, whether in law or in equity and whether known or unknown to Noble
China, Inc. or anyone in privity therewith, at any time has had, now has or may
have, or that its successors and assigns at any time may have, against Pabst or
its officers, directors, agents, employees, heirs, representatives, successors
and assigns from the beginning of time until five years from the Effective Date
of the Agreement".
B. A duly adopted resolution by the Board of Directors of Noble
China, Inc., in form and substance agreeable to Licensor, agreeing to the
assignment, transfer or cancellation of the May 26, 1999 License Agreement
between Noble China, Inc. and Pabst Brewing Company, Inc. and releasing and
quitclaiming any and all rights, title or interest to the May 26, 1999 License
Agreement.
C. The termination of the Existing May 26, 1999 License Agreement
and the entry into of the new Manufacturing License Agreement between Licensee
and Licensor shall have been approved by an Order of the Ontario Superior Court
of Justice, Commercial List in the proceeding commenced by Noble China, Inc.
under the Companies' Creditors Arrangement Act (Canada) upon notice to the
Service List in that proceeding and to any other party requested by Noble China
Inc., to be notified and any appeal period from such Order shall have expired
or, if any appeal is filed, such appeal shall have been finally and conclusively
dismissed.
IN WITNESS WHEREOF the parties have executed this Agreement.
FOR LICENSOR:
PABST BREWING COMPANY
By ____________________________________
Xxxxx X. Xxxxxxxxx
Title: President
FOR LICENSEE:
INNO UP LIMITED
By:____________________________________
Title: DIRECTOR
-------------------------------
EXHIBIT A
---------
MARKS AND DESIGNS TO BE ELIMINATED OR MODIFIED FROM
CURRENT
MALT BEVERAGES PRODUCED IN THE TERRITORY
Licensee shall cause to be removed or modified (as indicated below) from various
of Guangdong Blue Ribbon Group packages, packaging, glass bottles and cans,
other than those containing the Beverage, the following items (as indicated
below):
1. All vertical blue ribbons on the Blue Lion label
2. The Chinese characters "Blue Ribbon" imprinted on the glass bottle
3. Will eliminate or redesign the malt staff (on Blue Lion label) and hop
leaf design (Blue Power label) to avoid any confusion with the Pabst Blue Ribbon
beer.
4. The blue diagonal bar (Blue Cowrie - cans) - best efforts to remove
5. The phrase "This is the ORIGINAL Pabst Blue Ribbon Beer" from the CBR
Blue Power "Gold" Beer 355 ml can
EXHIBIT B
---------
GUANGDONG BLUE RIBBON GROUP MALT BEVERAGES PRODUCED AND AVAILABLE IN THE
TERRITORY AS AT FEBRUARY 28, 2003
i) Blue Lion
ii) Blue Diamond
iii) Blue Cowrie
iv) Blue City
v) Blue K King
vi) Blue Power
vii) Double V
viii) Dinghu
ix) Xile
