EXHIBIT 4.4
CONFORMED COPY
LICENSE AGREEMENT dated as of January 31,
2003, between QUILMES INDUSTRIAL (QUINSA)
SOCIETE ANONYME, a Luxembourg corporation
("QUINSA"), and COMPANHIA DE BEBIDAS DAS
AMERICAS - AMBEV, a Brazilian sociedade
anonima ("AMBEV").
WHEREAS, pursuant to the Share Exchange Agreement dated as of May 1,
2002 (the "SHARE EXCHANGE AGREEMENT"), AmBev agreed to grant to Quinsa a
perpetual, royalty free, exclusive license to the AmBev beer brands in the
Territory pursuant to certain conditions set forth in this Agreement;
WHEREAS, AmBev and Quinsa recognize that the success of this License
Agreement depends upon the fulfillment of the needs of retailers and consumers
in the Territory, upon the execution of aggressive, sound and ethical marketing
efforts, and upon a conscientious regard for customer service; and
WHEREAS, certain terms used in this Agreement are defined in Section 16
and all other capitalized terms used herein and not otherwise defined have the
meanings set forth in the Share Exchange Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, AmBev and Quinsa hereby agree as
follows:
1. GRANT OF LICENSE TO PRODUCE LICENSED AMBEV BEER.
1.1. License. Subject to any applicable legal restrictions, AmBev hereby
grants to Quinsa, on the terms and conditions set forth in this License
Agreement, the exclusive right and license to produce, have produced, bottle,
have bottled, distribute, have distributed, sell and have sold, Licensed AmBev
Beer (as defined below) under the Marks in the Territory.
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1.2. Inspection and Control.
a) All Beer produced by or under contract for Quinsa or its Affiliates for
sale in the Territory under the Marks (the "LICENSED AMBEV BEER") shall
be in conformance with the Technical Industrial Information and shall
be of a substantially uniform quality within reasonably designated
specifications as determined from time to time by AmBev.
b) Every month during the term of this License Agreement, Quinsa, at
Quinsa's expense, shall deliver to AmBev at a specified test facility
located in Brazil, representative product samples of recently produced
Licensed AmBev Beer from each brewery at which it is produced by or on
behalf of the Quinsa, to enable AmBev or its Affiliates to determine
compliance with Section 1.2.a). Quinsa shall also supply to AmBev
monthly reports substantially in the form of Attachment D hereto.
c) At all reasonable times during normal business hours, upon at least
seventy-two (72) hours prior notice to Quinsa, Quinsa agrees to permit
AmBev and/or its duly authorized representatives to (i) visit and
inspect any of the properties or facilities at which Licensed AmBev
Beer is produced, bottled, processed, packaged or stored by or for
Quinsa or its Subsidiaries, and (ii) inspect the brewing facilities,
brewing procedures, brewing laboratories, packaging and storage and
quality control procedures relating to Licensed AmBev Beer. Quinsa will
fully cooperate with AmBev with respect to such inspection and will
keep AmBev advised of each location at which the activities related to
the production, bottling, distribution, marketing or sale of Licensed
AmBev Beer are taking place.
1.3. Permitted Breweries. Prior to the commencement of Commercial Brewing of
Licensed AmBev Beer at a brewery, Quinsa shall obtain AmBev's written approval
of the brewery as a brewery for the production of Licensed AmBev Beer, except
that Quinsa shall have the right to brew Licensed AmBev Beer at any brewery
owned or operated by Quinsa as of the date of this License Agreement as listed
on Attachment B hereto for so long as the relevant brewery continues to be owned
or operated by Quinsa. In the exercise of its approval right, AmBev may require,
as a condition for such approval, modifications to each brewery at which
Licensed AmBev Beer is to be brewed and at related storage facilities. Further,
with respect to each brewery at which Licensed AmBev Beer is to be brewed,
Quinsa (after consultation with, and inspection by, AmBev) will conduct or cause
to be conducted commercial scale brew tests of the particular Licensed AmBev
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Beer to be produced at that brewery; provided that, with respect to the
breweries located at Quilmes, Xxxxxx, Corrientes, Xxxxxxx, Tucuman, and Ipane
AmBev shall complete its inspection within 30 (thirty) days after the date
hereof.
1.4. Licensed AmBev Beer Ingredients.
a) AmBev will sell to Quinsa, and Quinsa will purchase only from AmBev (or
its designee), the culture yeast needed for the production of Licensed
AmBev Beer pursuant to this License Agreement.
b) Culture yeast purchased by Quinsa from AmBev (or its designee) shall be
handled as prescribed by AmBev. Quinsa shall not propagate, or permit
any other Person to propagate, such culture yeast (other than in the
production of Licensed AmBev Beer), nor shall Quinsa disclose the
details of, or use, or allow any other Person to use, such culture
yeast for any purpose other than the production of Licensed AmBev Beer
in accordance with the terms of this License Agreement. Quinsa shall
not sell, transfer or deliver any such culture yeast to any Person
other than AmBev or a Person designated by AmBev (or otherwise permit
any such other Person to obtain the same) without the prior written
consent of AmBev.
c) All sales of culture yeast by AmBev (or its designee) to Quinsa for use
in connection with Licensed AmBev Beer shall be (i) in the event that
AmBev does not produce such product, at the same price and upon the
same terms as purchases of such product are made by AmBev from its
suppliers, or (ii) in the event that AmBev produces such product, at a
price equal to AmBev's cost of production; provided that Quinsa, will
pay to such suppliers or reimburse AmBev, as the case may be, for any
incremental costs arising in connection with the delivery of such
product to the facility or facilities at which Licensed AmBev Beer is
being produced, including but not limited to transportation costs and
any and all import or other taxes. Unless otherwise agreed, the prices
shall be F.O.B. AmBev's designated facility.
d) All payments by Quinsa for cultured yeast, unless otherwise directed by
AmBev, shall be made within sixty (60) days of the appropriate shipment
by AmBev (or its designee), in U.S. Dollars by such means as are
specified in written instructions provided by AmBev (or its designee)
from time to time. Amounts expressed in a currency other
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than U.S. Dollars shall be converted into U.S. Dollars at the exchange
rate prevailing on the due date for such payment.
e) Quinsa shall obtain such licenses and approvals as may be necessary in
connection with the import into and use of the culture yeast in the
Territory.
2. EXCLUSIVITY.
2.1. Restrictions on Quinsa.
a) Other Brazilian Brands. Quinsa will not, without the express written
approval of AmBev, in any manner produce, sell or distribute any Beer
that is marketed or sold in Brazil under a trademark or trade name that
is of Brazilian origin (a "BRAZILIAN BEER") unless such trademark or
tradename is owned by, or licensed to, AmBev.
b) Licensed AmBev Beer Outside of Territory. Except to the extent that
Quinsa and AmBev hereafter agree in writing to extend beyond the
Territory the markets in which Quinsa may produce, have produced,
bottle, have bottled, distribute, have distributed, sell or have sold,
Licensed AmBev Beer, Quinsa will not, and shall insure that its
Affiliates will not, directly or indirectly:
(i) actively solicit orders for Licensed AmBev Beer, or establish
any branch or maintain any distribution depot for the sale of Licensed
AmBev Beer outside of the Territory;
(ii) accept any order for Licensed AmBev Beer for delivery outside
of the Territory; or
(iii) sell, distribute or resell Licensed AmBev or any Brazilian
Beer to any purchaser located in a country outside of the Territory, or
to a purchaser located in the Territory if Quinsa knows or reasonably
should have known that the purchaser intends to directly or indirectly
sell, distribute or resell Licensed AmBev Beer outside of the
Territory.
c) Notwithstanding anything to the contrary contained herein, AmBev agrees
that Quinsa may continue to produce, sell and distribute Beer both
inside and outside of the Territory under the Heineken trademark and
tradename and otherwise comply with the terms and conditions of the
trademark license, technical assistance and other related agreements
currently in effect between Heineken International BV, on
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the one hand, and Quinsa and its affiliates, on the other hand. AmBev
further agrees that neither Quinsa nor any of its Affiliates shall be
required, by reason of this License Agreement, to take any actions
which violate the terms of such agreements. Quinsa represents and
warrants that the execution, delivery and performance of this Agreement
do not contravene, conflict with, constitute a breach or default under,
or give rise to any right of termination or loss of material benefit
under, any of the agreements between Quinsa or any of its Affiliates
and Heineken N.V. or any of its Affiliates, except for any such
contraventions, conflicts, breaches, defaults, rights of termination
and losses of material benefit as have been unconditionally and
unrevocably released pursuant to the terms of the Memorandum of
Agreement dated as of January 13, 2003 between Quinsa and Heineken
International B.V. or the terms of the releases contemplated thereby.
2.2. Restrictions on and Rights of AmBev.
a) Sales in the Territory. Until such time, if any, as this License
Agreement is terminated pursuant to the Section 9, AmBev will not:
(i) produce, sell, bottle, distribute or resell Licensed AmBev
Beer inside the Territory, except as may otherwise be
expressly contemplated by this License Agreement;
(ii) sell, distribute or resell Licensed AmBev Beer to any
purchaser located in a country outside the Territory, if AmBev
knows or reasonably should have known that the purchaser
intends to directly or indirectly sell, distribute or resell
Licensed AmBev Beer inside the Territory;
(iii) grant to any other Person any license or other right to
produce, sell, distribute or resell or have produced, sold,
distributed or resold Licensed AmBev Beer inside the
Territory.
b) Sales by AmBev Outside the Territory. Subject to this Section 2.2,
AmBev retains the right to produce, bottle, sell, distribute or resell
or direct or license others to produce, bottle, sell, distribute or
resell Beer or any other AmBev product outside of the Territory,
including, but not limited to, Beer using Marks identical to those used
for Licensed AmBev Beer.
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3. MARKETING ADVERTISING AND PROMOTION
3.1. Overall Brand Strategy. Quinsa (or, if Quinsa enters into a sublicense
pursuant to Section 13.11 with respect to any portion of the Territory, the
Quinsa Subsidiary holding the sub-license), after consultation with AmBev, shall
develop the overall policies and present to Quinsa Board of Directors (or to the
board of directors of such Quinsa Subsidiary) for approval, the overall policies
and strategies relating to the market positioning of Licensed AmBev Beer,
including, without limitation, the policies and strategies relating to image,
class and target price and shall determine the fit and placement of Licensed
AmBev Beer within Quinsa's brand portfolio. Such overall policies and strategies
must be consistent with AmBev's policies and strategies for Licensed AmBev Beer
outside the Territory.
3.2. Marketing Manager.
a) AmBev shall have the exclusive right to nominate a person familiar with
the AmBev marketing policies, standards and procedures to act as the
marketing manager for the Territory (the "MARKETING MANAGER"); provided
that, if at any time, Quinsa advises AmBev that the nature or scope of
sales of Licensed AmBev Beer in any portion of the Territory covered by
the Marketing Manager are such that it is not practicable or advisable
for the Marketing Manager to continue to be the marketing manager for
the entire Territory, AmBev will nominate another such person or
persons to act as marketing managers for the portion or portions of the
Territory as to which Quinsa provides such advice (all such persons so
designated by AmBev being referred to herein collectively as the
"MARKETING MANAGERS"). The appointment of any Marketing Manager shall
require the mutual consent of AmBev and Quinsa; provided Quinsa shall
hire each of the Marketing Managers as its own employee, pay the salary
of, and all other employee compensation for, each of the Marketing
Managers and for up to two additional persons selected by the Marketing
Managers to assist them in the performance of their duties under this
License Agreement. The Marketing Managers shall report to Quinsa's
marketing director (the "QUINSA MARKETING DIRECTOR") and shall have the
responsibilities and authority set forth below in this Section 3.2.
AmBev and Quinsa shall each have the right to propose the removal of
any Marketing Manager so long as such proposal is made in good faith
and based on the failure or alleged failure of such Marketing Manager
to competently perform his/her duties. The Party proposing the removal
of any Marketing Manager shall notify the other Party of the reasons
why such removal
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is requested and the Party receiving such notice shall consider in good
faith the removal of such Marketing Manager. The removal of any
Marketing Manager shall require the mutual agreement of AmBev and
Quinsa; provided that neither Party may unreasonably withhold its
consent to a removal proposed by the other Party. Notwithstanding the
foregoing, AmBev shall have the right to promote any individual in the
position of Marketing Manager at any time within AmBev's organization
without Quinsa's prior approval. Upon removal of a Marketing Manager,
AmBev shall designate and Quinsa shall appoint a new Marketing Manager
in place of the removed Marketing Manager.
b) Each Marketing Manager, with respect to the portion of the Territory
for which such Marketing Manger shall:
(i) work with the Quinsa Marketing Director in developing, using
criteria and a format substantially similar to those used by Quinsa in
connection with Beer produced and sold by Quinsa other than the AmBev
Licensed Beer (the "QUINSA BRANDS"), and presenting for approval
pursuant to Section 3.4, a proposed annual marketing plan for Licensed
AmBev Beer;
(ii) work with the Quinsa Marketing Director in overseeing and
managing the implementation of the Marketing Plan provided that Quinsa
shall fully cooperate with and assist the Marketing Manager in so
implementing the Marketing Plan;
(iii) act as a liaison between AmBev and Quinsa with respect to
marketing, advertising and promotional materials, plans and activities
relating to Licensed AmBev Beer and, as such, provide to Quinsa all
information reasonably requested by Quinsa concerning AmBev's brand
design parameters, bottles, labels, cans and closures; and
(iv) submit to Quinsa Board of Directors' prior approval, any
material modifications to any Marketing Plan.
3.3. Sales Manager. AmBev shall have the exclusive right to nominate a
person familiar with the AmBev sales policies, standards and procedures to act
as the sale manager for the Territory (the "SALES MANAGER"); provided that, if
at any time, Quinsa advises AmBev that the nature or scope of sales of Licensed
AmBev Beer in any portion of the Territory covered by the Sales Manager are such
that it is not practicable or advisable for the Sales Manager to continue to be
the sales manager for the entire Territory, AmBev will nominate another such
person or persons to act as sales managers for
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the portion or portions of the Territory as to which Quinsa provides such advice
(all such persons so designated by AmBev being referred to herein collectively
as the "SALES MANAGERS"). The appointment of any Sales Manager shall require the
mutual consent of AmBev and Quinsa; provided Quinsa shall hire each of the Sales
Managers as its own employee, pay the salary of, and all other employee
compensation for, each of the Sales Managers and for up to two additional
persons selected by the Sales Managers to assist them in the performance of
their duties under this License Agreement. The Sales Managers shall report to
Quinsa's director of sales and shall be in charge of interacting with regional
sales managers in order to oversee regional sales strategies and promotions for
Licensed AmBev Beer. AmBev and Quinsa shall each have the right to propose the
removal of any Marketing Manager so long as such proposal is made in good faith
and based on the failure or alleged failure of such Marketing Manager to
competently perform his/her duties. The Party proposing the removal of any
Marketing Manager shall notify the other Party of the reasons why such removal
is requested and the Party receiving such notice shall consider in good faith
the removal of such Marketing Manager. The removal of any Marketing Manager
shall require the mutual agreement of AmBev and Quinsa; provided that neither
Party may unreasonably withhold its consent to a removal proposed by the other
Party. Notwithstanding the foregoing, AmBev shall have the right to promote any
individual in the position of Sales Manager at any time within AmBev's
organization without Quinsa's prior approval. Upon removal of a Sales Manager,
AmBev shall designate and Quinsa shall appoint a new Sales Manager in place of
the removed Sales Manager.
3.4. Annual Marketing Plans.
a) The Parties shall use their respective best efforts to cause each
Marketing Manager to (i) develop for each Agreement Year a Marketing
Plan for the Territory or portion of the Territory for which such
Marketing Manager is responsible and (ii) submit such Marketing Plan to
the Quinsa Board of Directors for its approval as early as practicable
prior to the beginning of such Agreement Year. If the Quinsa Board of
Directors fails to approve any proposed Marketing Plan with respect to
any portion of the Territory for any Agreement Year, then, until such
time as the Quinsa Board of Directors approves such a Marketing Plan,
the Marketing Plan for such portion of the Territory for such Agreement
Year will be the last Marketing Plan for such portion of the Territory
that was approved by the Quinsa Board of Directors, and the Parties
shall use their best efforts to cause a revised Marketing Plan to be
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presented to the Quinsa Board of Directors for its approval as promptly
as practicable after the date of the meeting at which the Marketing
Plan failed to be approved.
b) Quinsa and AmBev will use their best efforts to cause each Marketing
Manager, on at least a quarterly basis, to meet with the Quinsa
Marketing Director to discuss the applicable Marketing Plan, to review
progress in implementing such Marketing Plan and to consider possible
modifications to such Marketing Plan.
3.5. Advertising and Promotional Agencies. Quinsa, after appropriate
consultation with, and approval by, AmBev, shall have the right to select and
appoint any outside agencies to handle the advertising and promotion of Licensed
AmBev Beer.
3.6. Advertising Materials.
a) Quinsa agrees not to use, in connection with the sale or distribution
of AmBev Licensed Beer, any marketing, advertising or promotional
material or program unless such material or program has been approved
by AmBev. All electronic communications materials or programs involving
the Licensed AmBev Beer shall be submitted to AmBev for approval at
each stage of development and production of such material or program
(i.e., briefing, copy and offline) prior to use by Quinsa, such
approval rights to be exercised by AmBev in good faith.
b) The Parties agree to use their best efforts to ensure that all
marketing, advertising and promotional materials and programs used in
connection with the production, bottling, distribution, marketing or
sale by Quinsa of Licensed AmBev Beer:
(i) are truthful and in accordance with the highest standards of
commercial ethics;
(ii) are in good taste;
(iii) do not disparage or impair the Marks, AmBev and its
Affiliates, Quinsa or their respective Affiliates or Licensed AmBev
Beer; and
(iv) do not knowingly undermine or damage any of the overall
marketing strategies contemplated by the Marketing Plan (in particular,
but not limited to, product positioning and brand image strategies).
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3.7. Marketing Cost Obligation. Notwithstanding anything to the contrary set
forth herein, unless the Parties otherwise agree, Quinsa agrees that it will
incur in each Budget Year, in respect of Marketing Costs in support of Licensed
AmBev Beer, an amount, computed on a country by country basis, at least equal to
the aggregate amount of all sales of Licensed AmBev Beer in that country during
the Budget Year multiplied by the same percentage that the Marketing Cost
expenditures made by Quinsa in such country during such Budget Year in support
of the Quinsa Brands represented as a percentage of the aggregate amount of all
sales by Quinsa of the Quinsa Brands in such country during such Budget Year. In
the event of a product launch in any country or portion of the Territory, the
Quinsa Board of Directors shall determine, at its discretion, an incremental
amount of Marketing Costs in support of such product launch to be added to the
Marketing Plan for that country or portion of the Territory during such Budget
Year.
3.8. Certain Acknowledgements.
a) Quinsa agrees that nothing in this License Agreement shall require
AmBev or any of its Affiliates now or at any time during the term of
this License Agreement to:
(i) maintain or alter the formula, ingredients or packaging of
Licensed AmBev Beer or the container thereof;
(ii) restrict AmBev's or its Affiliates' production and/or sale of
any brands of Beer other than Licensed AmBev Beer and/or other products
outside the Territory; or
(iii) restrict its conduct of any other business; or
b) Quinsa agrees that nothing in this License Agreement shall permit
Quinsa to alter the formula, ingredients, packaging or labeling of
Licensed AmBev Beer.
4. AMBEV MARKS.
4.1. Ownership of Marks. Quinsa hereby agrees that:
a) The Marks and the appurtenant goodwill and Intellectual Property are
the sole property of AmBev in the Territory and elsewhere. Quinsa
acknowledges the validity and enforceability of the Marks and the sole
and exclusive ownership of those Marks and other related Intellectual
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Property by AmBev. Quinsa agrees that it shall not, at any time during
this License Agreement or thereafter, challenge said validity or
enforceability of the Marks or other related Intellectual Property for
any reason or AmBev's sole and exclusive ownership thereof.
b) Any registration of the Marks shall be made in the name and at the
expense of AmBev or its Affiliates as the sole owner of such Marks and
shall remain the property of AmBev or its Affiliates. AmBev shall
continue to be the owner of the Marks in the Territory; provided that,
until such time, if any, as this Agreement is terminated pursuant to
Section 9 hereof, AmBev will not take any action with respect to any of
the Marks in the Territory that is inconsistent with, or materially and
adversely affects, the rights of Quinsa under this License Agreement.
c) Quinsa will not, by virtue of any activities hereunder, obtain any
ownership interest in or title to the Marks or in any registrations
thereof; and any uses it makes of such Marks shall inure only to the
benefit of AmBev. If by operation of law, or otherwise, Quinsa shall
obtain any ownership interest in or to any of the Marks, upon written
request by AmBev or not, Quinsa shall promptly assign such ownership
interest in the Marks to AmBev or its designee (or if AmBev so
requests, grant a perpetual, royalty-free license to AmBev or its
designee to use the Marks) without any charge. Each Party agrees to
sign (at Ambev's expense) all agreements (and cancellation agreements)
that the other may reasonably require relating to Licensed AmBev Beer
in the Territory, provided that the terms of such agreement shall be
consistent with the terms of this License Agreement.
d) Quinsa shall have no right to take or require any action with respect
to registering or otherwise obtaining, maintaining or enforcing rights
in and to the Marks, including, without limitation, any action with
respect to the registration of any Xxxx or variation thereon as a
trademark, service xxxx, trade name, business name or internet domain
name in any national, state or local registry established for the
purpose of recording the same, but shall cooperate (at AmBev's expense)
in any such actions as requested by AmBev or its designee.
e) Except as permitted herein, Quinsa shall not, at any time during this
License Agreement and thereafter, use or attempt to register (i) any
xxxx confusingly similar to the Marks, or (ii) any label, package or
product ornamentation confusingly similar to those used in connection
with Licensed AmBev Beer, for any type of product.
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f) Quinsa shall not combine any Xxxx with any other matter in any way (or
use such Xxxx in any other manner) that may adversely affect its
function as an indication of origin.
g) Quinsa shall have the right to use the Marks solely pursuant to this
License Agreement.
4.2. Trademark Usage. All labels, containers, packaging and materials
bearing a Xxxx shall be of a quality that conforms to the specifications
approved by AmBev.
4.3. Limitations on License. Quinsa shall not, directly or indirectly, use,
or authorize the use of, any of the Marks in connection with the production,
bottling, distribution, marketing, sale or resale of Licensed AmBev Beer that
does not meet the requirements set forth in Section 1.2.a) of this License
Agreement or is otherwise not in compliance with this License Agreement.
5. DISCLOSURE OF TECHNICAL INDUSTRIAL INFORMATION BY AMBEV.
5.1. Disclosure by AmBev of Technical Industrial Information. In furtherance
of this License Agreement, AmBev shall disclose, to the extent not previously
disclosed, as soon as practicable after the date hereof, to Quinsa such
Technical Industrial Information as shall be necessary for Quinsa to fulfill its
obligations and exercise its rights under this License Agreement. To the extent
that AmBev acquires subsequent to the execution of this License Agreement new
information or knowledge that would fall within the definition of Technical
Industrial Information and would be necessary for Quinsa to fulfill its
obligations or exercise its rights under this License Agreement, AmBev shall
promptly disclose such information to Quinsa. AmBev shall not have any
obligation to obtain patent protection on the Technical Industrial Information
in the Territory, or, except as set forth in this License Agreement, to disclose
to Quinsa any other technology used by AmBev either outside the Territory or
that is held by AmBev under a confidentiality or similar agreement with a third
party. The Technical Industrial Information shall be used by Quinsa exclusively
in connection with Licensed AmBev Beer, unless otherwise agreed.
5.2. Grant of Rights in Technical Industrial Information. Subject to the
confidentiality obligations set forth in Section 7, Quinsa shall have the right
to use the Technical Industrial Information only to produce Licensed AmBev Beer
pursuant to the terms of this License Agreement. No other right or
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benefit to use the Technical Industrial Information is hereby granted or
intended, either directly or by implication, and no other right or benefit will
be claimed by Quinsa except as herein provided (or otherwise agreed to by AmBev
in writing).
5.3. Form of Technical Industrial Information. The Technical Industrial
Information to be disclosed or made available by AmBev hereunder shall be
delivered in English and shall be in accordance with technical standards used by
AmBev at the time of preparation thereof.
6. UNDERTAKINGS OF THE PARTIES.
6.1. Quinsa's Undertakings. Except as otherwise expressly provided herein,
Quinsa shall, at any and all times during the term of this License Agreement,
and thereafter to the extent set forth in to Section 9.8, in addition to its
other covenants set forth in this License Agreement:
a) maintain appropriate sales and delivery forces and a proper system for
recording orders, deliveries and other pertinent matters customary in
the marketing and distribution of Licensed AmBev Beer in the Territory
(which records shall be available for discussion with AmBev's
representatives, during Quinsa's regular business hours);
b) maintain, or cause others to maintain at all times, in warehouses that
are suitable for such purposes, an inventory of Licensed AmBev Beer
which it reasonably believes to be sufficient to meet anticipated
demand;
c) apply to the production, bottling, distribution, marketing and sale of
Licensed AmBev Beer, practices, procedures and standards consistent
with the practices, procedures and standards applied by Quinsa and its
Subsidiaries in connection with the production, bottling, distribution,
marketing and sale of the Quinsa Brands;
d) to the extent available and commercially reasonable, obtain and
maintain at all times during the term of this License Agreement and
thereafter for so long as any Licensed AmBev Beer remains in
distribution, product liability insurance covering its activities
hereunder in amounts and on terms considered reasonable by Quinsa Board
of Directors from time to time;
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e) obtain such approvals, licenses and permits as may be required from
time to time under the laws and regulations in the Territory in
connection with the production, bottling, distribution, marketing and
sale of Licensed AmBev Beer contemplated by this License Agreement;
f) (i) report to AmBev any non-routine or otherwise material
correspondence or communications that it receives from (x) any
Governmental Entity concerning Licensed AmBev Beer, or (y) any other
Person if such correspondence or communications pertain to any claims,
including, without limitation, (A) claims for product liability or
infringement of Intellectual Property, or (B) material consumer
complaints that reasonably would be expected to (i) result in material
legal action against either Quinsa or AmBev, or (ii) materially
adversely affect the reputation of Quinsa or AmBev, or (iii) result in
the disclosure by Quinsa or AmBev of any product defects or the
implementation by Quinsa or AmBev of any product recalls; and (ii)
promptly provide to AmBev copies of such correspondence or
communications;
g) comply in all material respects with the manual "Padrao de Processos
Tecnicos" to be provided by AmBev to Quinsa. If any changes are made to
such manual, Quinsa shall be given a reasonable amount of time to
adhere to such changes;
h) adhere to all conditions that may be reasonably prescribed by AmBev in
relation to the storage of Licensed AmBev Beer including:
(i) ensuring that Licensed AmBev Beer that exceeds the expiration
date referred to below is not sold in the marketplace;
(ii) ensuring that all Licensed AmBev Beer that it produces or has
produced is coded with an appropriate expiration date, such date to be
based on an appropriate period between production and expiration of
Licensed AmBev Beer to be agreed upon by the Parties promptly after the
Effective Date; and
(iii) follow with respect to the Licensed AmBev Beer practices and
procedures relating to outdated, damaged or otherwise unmarketable
inventory that are consistent with the practices and procedures
followed by Quinsa and its Subsidiaries with respect to the Quinsa
Brands in the Territory.
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i) upon the occurrence of any material quality problem, (i) suspend the
production, bottling, distribution, marketing, sale and resale (or
cause the suspension of the production, bottling, distribution,
marketing, sale and resale) of Licensed AmBev Beer immediately upon
discovery by Quinsa of such problem or receipt by Quinsa of a request
from AmBev for such suspension that is reasonable under the prevailing
circumstances, (ii) promptly destroy any product with any such quality
problem, and (iii) immediately notify AmBev and provide full details
pertaining to such event, and provide written reports and other
assistance as may reasonably required by AmBev in order to gain
information pertaining to the event and to take any other appropriate
action in response thereto;
j) promptly after any general manager of Quinsa or its Subsidiaries
becomes aware of or has reason to believe that (i) any of AmBev's trade
secrets, Marks, Intellectual Property, Technical Industrial Information
or other Confidential Information or details pertaining thereto, or any
of the terms, conditions or other facts contained in this License
Agreement or with respect to Licensed AmBev Beer, have inadvertently or
otherwise been disclosed to or obtained by or are being used by any
unauthorized third party, or (ii) an unauthorized Person has gained
access to culture yeast or any other ingredient supplied by AmBev or
its designee for use in connection with this License Agreement or
details pertaining thereto, immediately notify AmBev and provide full
details pertaining to such event, and shall provide written reports and
other assistance as may reasonably required by AmBev in order to gain
information pertaining to the event and to take appropriate action in
response thereto; and
k) use its best efforts and fully cooperate with AmBev in connection with
the registration or obtaining, maintenance and enforcement of AmBev's
or any of its Affiliate's rights in any to the Marks both inside and
outside of the Territory.
6.2. AmBev's Undertakings. AmBev will, at any and all times during this
License Agreement:
a) conduct AmBev's business in a manner that will reflect favorably upon
Licensed AmBev Beer so as to preserve the goodwill of retailers and
consumer acceptance of Licensed AmBev Beer in the Territory;
15
b) provide Quinsa with freshness and storage guidelines as well as other
information useful in monitoring and maintaining the quality of
Licensed AmBev Beer in the marketplace;
c) obtain such approvals, licenses and permits as it may require from time
to time under the laws and regulations of Brazil in connection with the
production, exportation, distribution, marketing and sale of Licensed
AmBev Beer ingredients referred to in Section 1.3;
d) take all such actions in such manner as it may determine is appropriate
in registering, obtaining, maintaining and enforcing its rights and/or
its Affiliates' rights to the Marks both inside and outside of the
Territory;
e) provide all necessary formulae, recipes, technical guidelines and
process information to produce Licensed AmBev Beer in accordance with
the terms of this License Agreement;
f) provide all necessary guidelines regarding packaging materials and
their subsequent changes and improvements in due time to ensure an
adequate chain of supply time to Quinsa's production facilities; and
g) provide the "Padrao de Processos Tecnicos" manual to be used in the
production of the Licensed AmBev Beer pursuant to the terms of this
License Agreement.
7. CONFIDENTIALITY.
7.1. Confidential Information. Quinsa acknowledges that AmBev, during the
term of this License Agreement, may make available to Quinsa directly or to its
Representatives certain Confidential Information.
7.2. Ownership of Confidential Information. All Confidential Information
shall remain the sole property of AmBev. Quinsa shall not obtain any
intellectual property rights in, nor have the right to use, except as stated
herein, any such Confidential Information disclosed to it by or on behalf of
AmBev.
7.3. Treatment of Confidential Information. Quinsa shall use the
Confidential Information solely in connection with the performance of its
obligations and the exercise of its rights under this License Agreement, and
except as set forth in Section 7.4, will not, without AmBev's prior written
consent, disclose the Confidential Information to any Person directly or
16
indirectly, other than its Representatives who need to know such information in
connection with performance by Quinsa of its obligations or the exercise by
Quinsa of its rights hereunder; provided that Quinsa will advise its
Representatives of the terms of this Section 7 and, if such Representatives are
external advisors or agents, will further require such Representatives to
acknowledge, in a manner acceptable to AmBev, the confidentiality of the
Confidential Information. Quinsa will be responsible for any breach of this
Section 7 by its Representatives. Upon any termination of this License
Agreement, Quinsa shall return to AmBev all of AmBev's Confidential Information,
including all magnetic, computer-resident and other electronic data,
photostatic, or other copies, or derivatives thereof, provided pursuant to this
License Agreement. All other analyses, compilations and documents containing or
reflecting any of the Confidential Information prepared by or on behalf of
Quinsa shall be destroyed, such destruction to be confirmed in writing.
7.4. Disclosure Due to Requirements of Law. In the event that Quinsa is
legally compelled, requested or required (by legal, administrative, or similar
process, including but not limited to oral questions, interrogatories, requests
for information or documents in legal proceedings, subpoena, civil investigative
demand or other similar process) to disclose to any third party any of the
Confidential Information, it shall provide AmBev with prompt written notice of
any such request or requirement so that AmBev may seek a protective order or
other appropriate remedy and/or waive compliance with the provisions of this
License Agreement. If in the absence of a protective order or other remedy or
the receipt from AmBev of a waiver, Quinsa is nonetheless legally compelled, as
evidenced by receipt by AmBev of a written opinion of legal counsel to Quinsa
reasonably acceptable to AmBev, to so disclose Confidential Information
(including to any tribunal or administrative agency), Quinsa may, without
liability hereunder, so disclose to the third party (including a tribunal or
administrative agency) only that portion of the Confidential Information which
such counsel advises is legally required to be disclosed, and will exercise its
best efforts to preserve the confidentiality of the Confidential Information,
including, without limitation, by cooperating with AmBev to obtain an
appropriate protective order or other reliable assurance that confidential
treatment will be accorded to the Confidential Information (including by such
tribunal or administrative agency).
7.5. Specific Performance. It is further understood and agreed that money
damages would not be a sufficient remedy for any breach of this Section 7 by
Quinsa and that, with respect only to Quinsa's confidentiality obligations
17
under this Section 7, AmBev, subject to applicable law, shall be entitled to
equitable relief, including, without limitation, provisional or injunctive
relief, and/or specific performance, as a remedy for any such breach. Such
remedies shall not be deemed to be the exclusive remedies for a breach by Quinsa
of this Section 7, but shall be in addition to all other remedies available at
law to AmBev. Quinsa agrees not to oppose the granting of such equitable relief
on the ground that an adequate remedy exists at law, and to waive, and to cause
its Representatives to waive, any requirement for the securing or posting of any
bond in connection with such remedy. In the event of litigation relating to this
Section 7, if Quinsa has breached a provision of this Section 7, then Quinsa
shall be liable and shall pay to AmBev the reasonable legal fees and any other
expenses, in U.S. Dollars, that AmBev has incurred in connection with such
litigation, including any appeal therefrom. Amounts expressed in a currency
other than U.S. Dollars shall be converted into U.S. Dollars at the exchange
rate prevailing on the due date for such payment.
8. LATE PAYMENT PENALTY.
8.1. Penalties for Late Payment. Irrespective of the manner according to
which any payments are made pursuant to this License Agreement, any amount
overdue shall be payable in U.S. Dollars and shall bear interest calculated pro
rata temporis, to the extent permitted by law, at a rate per annum equal to the
Fed Funds rate plus a spread of 2% (two per cent) p.a., as such rate is
available on the Bloomberg page "BTMM".
9. TERM; DEFAULT; REMEDIES.
9.1. Term. Subject to Sections 9.2, 9.3, 9.4 and 9.5, this License Agreement
shall continue in effect indefinitely.
9.2. Termination Upon a Change of Control. This License Agreement may be
terminated at any time by either AmBev or Quinsa upon a Change of Control.
9.3. Termination Prior to First Stage Closing Date. Except as otherwise
provided in Section 9.2 above, prior to the First Stage Closing Date (as defined
in the Stock Purchase Agreement), this License Agreement may be terminated only:
a) by the mutual written agreement of the Parties; or
18
b) by AmBev, upon the occurrence of a Bankruptcy Event with respect to
Quinsa, and by Quinsa, upon the occurrence of an Bankruptcy Event with
respect to AmBev; or
c) subject to Section 9.5, by either Party in the event a circumstance of
Force Majeure causes the continuous interruption of any of the
production, bottling, distribution, or sale of Licensed AmBev Beer by
Quinsa contemplated by this License Agreement for a period of twelve
(12) consecutive months.
9.4. Termination Following First Stage Closing Date. Except as otherwise
provided in Section 9.2 above, for so long as any Person other than AmBev and
its Affiliates hold any shares of Quinsa capital stock, this License Agreement
may not be terminated at any time after the First Stage Closing Date (as defined
in the Stock Purchase Agreement) by any Person for any reason unless such
termination is approved by both Parties and by at least one Person who is a
member of the Board of Directors and who is not an Affiliate of AmBev; provided
that if the Quinsa Board of Directors does not include, at the time of any
proposed termination pursuant to this Section 9.4, at least one Person who is
not an Affiliate of AmBev, then, this License Agreement may not be terminated
pursuant to this Section 9.4.
9.5. Force Majeure. The failure of a Party to perform any of its obligations
under this License Agreement, if caused by Acts of God or the public enemy,
fire, explosion, perils of the sea, flood, drought, war, riots, hostilities not
amounting to war, sabotage, accident, embargo, government priority, requisition
or allocation, or other action of any government authority, or by interruption
of or delay in transportation, shortage or failure of supply of materials or
equipment from normal sources for manufacture of the products specified herein,
labor strikes, or by compliance with any order or request of any government or
any officer, department, agency, or committee thereof, or any other
circumstances of like character beyond the reasonable control of that Party
("FORCE MAJEURE"), shall not subject that Party to any liability to the other.
Upon the occurrence of any event of Force Majeure, the Parties shall use their
respective best efforts to minimize the effects of such event and to overcome
such event as soon as practicable. In the event that this License Agreement is
terminated by AmBev pursuant to Section 9.3 (c), then (i) AmBev shall enter into
such other arrangements with Quinsa as Quinsa may reasonably request in order to
permit Quinsa to continue to obtain the benefits of, and to assume its
obligations under, this License Agreement and (ii) immediately upon elimination
or termination of the circumstances giving rise to such event of Force Majeure,
this License Agreement automatically
19
shall be reinstated and each Party shall execute and deliver such documents as
the other Party may reasonably request to evidence such reinstatement. If there
should occur an event of Force Majeure and this License Agreement remains in
effect, AmBev shall have the right to supply Licensed AmBev Beer to existing
customers in the Territory; provided that AmBev shall use its best efforts to
provide to Quinsa the economic benefit of such sales of Licensed AmBev Beer and
Quinsa shall use its best efforts to reimburse AmBev for any costs of such sales
that were borne by AmBev but that, in the absence of such event of Force
Majeure, would have been borne by Quinsa under the terms of this License
Agreement.
9.6. Termination and Winding Up.
a) Repurchase of Inventory. Upon any termination of this License
Agreement pursuant to Sections 9.2, 9.3 or 9.4, Quinsa will promptly
sell and deliver to AmBev (or AmBev's designee), and AmBev will
purchase (or cause to be purchased by its designee) from Quinsa,
Quinsa's inventory of applicable culture yeast purchased from AmBev or
its designee and, if AmBev so requests in writing within thirty (30)
days of such termination, Quinsa will promptly sell and deliver to
AmBev (or AmBev's designee) and AmBev will purchase (or cause to be
purchased by its designee) from Quinsa the inventory of Licensed AmBev
Beer which is still in Quinsa's possession on the date of such request
and which Quinsa has not yet sold or committed to a third party as of
the date of such request.
b) The purchase price for such products shall be the cost to Quinsa of
purchasing or producing such products plus government taxes and duties,
transportation and other expenses, if any, paid or incurred by Quinsa
thereon which are not refundable to Quinsa (as advised in writing by
Quinsa to AmBev). AmBev shall be obligated to purchase only such
products as are of marketable or usable quality and shall not purchase
any out-of-date products or products that have an expiration date
occurring within the following thirty (30) days. To the extent that
AmBev does not purchase any inventory of Licensed AmBev Beer, Quinsa
shall retain the non-exclusive right to sell, in the Territory, for a
period of ninety (90) days following the date of termination of this
License Agreement, all Licensed AmBev Beer produced prior to the
termination of this License Agreement and all Licensed AmBev Beer in
process that was finalized after the termination of this License
Agreement as contemplated by this Section 9.6.b). All Licensed AmBev
Beer in process as of the date of any termination of this
20
License Agreement will be finalized and bottled and shall be
incorporated as part of the inventory to be purchased by AmBev or sold
by Quinsa, as the case may be, in accordance with the terms of this
License Agreement.
c) Upon termination of this License Agreement, all unfilled orders shall
be deemed canceled.
9.7. Effect of Termination. If this License Agreement is terminated pursuant
to Sections 9.2, 9.3 or 9.4, then, subject to Sections 9.5 and 9.6, Quinsa's
right to produce Licensed AmBev Beer shall be automatically and immediately
terminated. Promptly after such termination, subject to Sections 9.5 and 9.6,
(i) at AmBev's option, Quinsa shall resell to AmBev and AmBev shall purchase
from Quinsa at cost the cultured yeast purchased from AmBev hereunder, or Quinsa
shall destroy such cultured yeast at AmBev's expense and AmBev shall reimburse
Quinsa for the cost thereof previously paid by Quinsa, and (ii) Quinsa shall not
use or make any reference to the Marks, nor use any label, package, promotional
item, or product ornamentation with respect to the sale of any product of any
kind whatsoever that is confusingly similar to the labels, packages, promotional
items, or product ornamentation used in connection with Licensed AmBev Beer.
Subject to Sections 9.5 and 9.6, upon termination of this License Agreement, (i)
all rights granted to Quinsa to use the Marks shall terminate immediately and
Quinsa agrees that it shall make no further use of the Marks; (ii) Quinsa shall
return to AmBev all Technical Industrial Information, as well as all unused
labeling, packaging, product ornamentation, advertising, promotional items and
the like bearing any of the Marks; and (iii) Quinsa shall take whatever action
may reasonably be requested by AmBev to confirm that all rights to use the Marks
have reverted to AmBev or its designee, including, where appropriate, the
execution of such assignments and confirmatory documents as may be reasonably
requested by AmBev. In addition, subject to Sections 9.5 and 9.6, Quinsa shall
return to AmBev all Confidential Information as required pursuant to Section
7.3, and not thereafter use any Confidential Information. Subject to Sections
9.5 and 9.6, AmBev shall be entitled to take all steps necessary for the removal
of the name of Quinsa as an authorized user of the Marks from all governmental
registries, if applicable, without opposition or hindrance from Quinsa, and
Quinsa shall cooperate by signing all necessary documentation submitted by AmBev
and taking all necessary action to this effect.
21
9.8. Survival of Certain Obligations. Upon termination of this License
Agreement in accordance with its terms, the rights and obligations of the
Parties to each other hereunder shall terminate; provided that:
a) the provisions of Sections 4, 6.1 (d), 7.2 through 7.5, 9.5, 9.6, 9.7,
10.1, 10.2, 10.3, 11.1, 12.1 and 13.1 through 13.8 shall survive such
termination;
b) any and all rights as to which a Party shall have provided written
notice to the other Party prior to such termination (including in
respect of alleged breaches of representations or covenants herein
shall survive.
10. INDEMNIFICATION.
10.1. Each Party shall indemnify the other Party and its Representatives
("OTHER INDEMNIFIED PERSONS") from, and shall hold the other party and the Other
Indemnified Persons harmless against all loss, cost, liability, damage or
expense (each, a "LOSS") which may be imposed upon or reasonably incurred by
such other Party or Other Indemnified Person, including reasonable attorney's
fees and disbursements and reasonable settlement payments, in connection with
any claim, action or other proceeding or threat thereof (including fines and
other governmentally imposed charges), made or instituted in which the other
Party or any Other Indemnified Person may be involved by reason of:
In the case of AmBev:
a) any Loss, including, without limitation, a Loss arising from a product
liability claim, arising out of Quinsa's production, bottling,
distribution, marketing, sale and/or resale of Licensed AmBev Beer,
except where, and only to the extent that, such Loss is primarily
caused by any defect in the AmBev Recipes;
b) any Loss caused primarily by any advice or determination made by Quinsa
under this License Agreement or in connection with the production,
bottling, distribution, marketing, sale and/or resale by Quinsa of
Licensed AmBev Beer which is knowingly false or misleading; or
c) any tortious act on the part of Quinsa.
22
In the case of Quinsa:
a) any Loss, including, without limitation, a Loss arising from a product
liability claim relating to Licensed AmBev Beer to the extent, but only
to the extent, that such Loss is primarily caused by any defect in the
AmBev Recipes; or
b) any tortious act on the part of AmBev.
10.2. Notwithstanding anything to the contrary set forth herein, Quinsa shall
have no liability to AmBev for any breach by Quinsa of any provision hereof (a)
to the extent that such breach is solely and directly attributable to any
decision, action, failure to decide or failure to act by any person or persons
who serve as directors of Quinsa and who were nominated or elected, directly or
indirectly, by AmBev or its Affiliates (collectively, the "AMBEV DIRECTORS") or
(b) to the extent that such breach occurs or continues after the First Stage
Closing Date.
11. NOTICES.
11.1. All notices or other communications required or permitted to be given
hereunder shall be in writing and shall be delivered by hand or sent by fax or
sent, postage prepaid, by registered, certified or express mail or overnight
courier service and shall be deemed given when so delivered by hand or fax, or
if mailed, three days after mailing (one business day in the case of express
mail or overnight courier service), as follows:
(i) if to Quinsa,
Xxxxxxxx General Xxxxx 667
Buenos Aires, Argentina, 1038
Attention: Chief Executive Officer
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000,
Attention: Xxxxx Xxxx; and
23
(ii) if to AmBev,
Companhia de Bebidas das Americas -- AmBev
Rua Xx. Xxxxxx Xxxx xx Xxxxxx, n(0)1.017, 3(0)andar cjs. 31
e 32
04530-000 Sao Paulo, SP
Brazil
Attention: Chief Financial Officer
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
12. GOVERNING LAW.
12.1. Governing Law. This License Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State.
13. MISCELLANEOUS.
13.1. Severability. If any provision of this License Agreement (or any
portion thereof) or the application of any such provision (or any portion
thereof) to any Person or circumstance shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof (or the remaining portion thereof) or the application of such provision
to any other persons or circumstances.
13.2. Assignment. Except as contemplated by Section 13.11, neither Party may
assign this License Agreement or any of its rights or obligations hereunder to
any Person without the prior written consent of the other Party, and any
assignment without such consent of AmBev shall be void; except that AmBev shall
have the unrestricted right to assign this License
24
Agreement to any of its Affiliates without the prior written consent of Quinsa,
provided that no such assignment shall relieve AmBev of its obligations
hereunder.
13.3. No Waiver. No failure or delay by any Party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or future exercise thereof
or the exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
13.4. Further Assurances. Each Party agrees to do all acts and things and to
make, execute and deliver such further written instruments, as may from time to
time be reasonably required to carry out the terms and provisions of this
License Agreement.
13.5. No Agency. No provision of this License Agreement shall be construed as
authorizing any Party to act as an agent for the other, or to make
representations on behalf of the other nor bind any other Party in any manner
whatsoever.
13.6. Amendment. This License Agreement may not be amended except by an
instrument in writing signed on behalf of each of the Parties hereto.
13.7. No Third Party Beneficiaries. Subject to the provisions of Section
7.1.h) and except for the Quinsa Licensees, CBB and any other Subsidiary of
AmBev contemplated in Section 13.12, this Agreement shall be binding upon and
for the sole benefit of the Parties hereto and their respective legal
representatives and permitted successors and assigns and nothing herein
expressed or implied shall give or be construed to give to any Person, other
than the Parties hereto and such legal representatives and permitted successors
and assigns, any legal or equitable rights hereunder.
13.8. Arbitration.
a) Any and all differences, controversies and disputes of any nature
whatsoever arising out of or relating to this License Agreement,
including without limitation any dispute relating to its validity,
interpretation, performance or termination, shall be finally settled
under the Rules of Arbitration of the International Chamber of Commerce
by three arbitrators appointed in accordance with said Rules. The
arbitration proceedings shall be conducted in the English language and
the seat of the arbitration shall be New York City. The
25
arbitrators appointed in connection herewith shall be knowledgeable in
the laws of the State of New York and fluent in the English language.
b) All submissions and awards in relation to arbitration under this
Agreement shall be made in English, and all arbitration proceedings and
all pleadings shall be in English. Witnesses not fluent in English may
give evidence in their native tongue (with appropriate translation).
Original documents in a language other than English shall be submitted
as evidence in English translation accompanied by the original or true
copy thereof.
c) The procedural rules governing arbitration hereunder shall be
established by the arbitrators; provided that (i) each party may call
upon the other party to supply the arbitrators with documents in such
other party's control relevant to the dispute; (ii) each party shall be
entitled to present the oral testimony of witnesses as to fact and
expert witnesses; (iii) each party shall be entitled to question
directly any witnesses who present testimony to the arbitrators; and
(iv) at the request of any party, a written transcript in English shall
be made of each hearing before the arbitrators and shall be furnished
to the parties. The arbitrators may, at the request of any party, order
provisional or conservatory measures; provided that to the extent
necessary to prevent irreparable damage any party may petition any
court of competent jurisdiction for a preliminary injunction, temporary
restraining order or other interim equitably relief pending the
appointment of the arbitrators in accordance with Section 13.8.a) and
action by the arbitrators upon any request for provisional or
conservatory measures.
d) Each party participating in such arbitration shall pay its own legal
fees and expenses incurred in connection with the arbitration and the
expense of any witness produced by it. The cost of any stenographic
record and all transcripts thereof shall be prorated equally among all
parties ordering copies and shall be paid by the parties directly to
the reporting agency. All other expenses of the arbitration, including
required traveling and other expenses and fees of the arbitrators and
the expenses of any witness or the cost of any proof produced at the
request of the arbitrators, shall be borne as determined by the
arbitrators.
e) Any award shall be final and not subject to appeal and the parties
waive all rights to challenge any award of the arbitrators under this
Section 13.8. Any award may be entered or presented by any of the
26
parties for enforcement in any court of competent jurisdiction sitting
in New York City, and the parties hereby consent to the jurisdiction of
such court solely for purposes of enforcement of any award. Each party
further agrees that service of any process, summons, notice or document
in the manner provided for notices in Section 11 shall be effective
service for purposes of any such enforcement action.
13.9. Counterparts. This License Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts have been signed by
each of the parties and delivered to the other parties. An executed counterpart
of this License Agreement delivered by fax shall be deemed to be an original and
shall be as effective for all purposes as delivery of a manually executed
counterpart.
13.10. Liability for Representatives. Each Party shall ensure that it, and its
Representatives observe and perform all of such Party's covenants,
representations or warranties set forth in this License Agreement and each such
Party shall, at its sole expense, take all reasonable measures (including but
not limited to court proceedings) to restrain its Representatives from breaching
such covenants, representations or warranties, including, but not limited to,
any prohibited or unauthorized disclosure or use of Confidential Information.
13.11. Sub-License. AmBev hereby grants to Quinsa the right to sub-license the
rights granted to Quinsa pursuant to this License Agreement to, and only to,
Quinsa International (Bermuda) Ltd and its Subsidiaries, including any such
Subsidiary that is acquired or created after the date hereof and that does
business in any portion of the Territory (the "QUINSA LICENSEES") in the
relevant jurisdiction or jurisdictions within the Territory in which such Quinsa
Licensee is incorporated or does business; provided, however, that:
a) each Quinsa Licensee shall enter into a sub-license agreement with
Quinsa and AmBev and/or one or more of its Subsidiaries as intervening
parties (a "SUB-LICENSE AGREEMENT"), and each such Sub-License
Agreement shall: (i) have terms and conditions identical to those set
forth in this License Agreement, including, without limitation,
governing law and arbitration, except for such terms and conditions
that would not be valid or enforceable in accordance with the laws of
the jurisdiction of incorporation of the relevant Quinsa Licensee or
the jurisdiction or jurisdictions in which the relevant Quinsa Licensee
does business, the relevant Quinsa Licensee. In the
27
event that any provision of this License Agreement shall be deemed
invalid or unenforceable in any such jurisdiction, AmBev and Quinsa (on
behalf of such Quinsa Licensee) shall negotiate in good faith to
replace the invalid or unenforceable provision to the greatest extent
possible with another valid provision that will achieve the economic
effect intended by this License Agreement; (ii) grant AmBev and Quinsa
(or the Quinsa Licensees) rights at least identical to those granted to
them pursuant to this License Agreement in the relevant portion of the
Territory to be covered by the respective Sub-License Agreement; and
(iii) be immediately and automatically terminated, without any
liability on the part of AmBev arising out of such termination, in the
event of termination of this License Agreement for any reason
whatsoever, or in case the relevant Quinsa Licensee ceases to be a
Subsidiary of Quinsa; provided that AmBev shall not be liable to any
Quinsa Licensees because of such termination;
b) no Quinsa Licensee shall have the right to sub-license the rights
granted to it pursuant to the relevant Sub-License Agreement;
c) Quinsa shall provide AmBev with a copy of all communications and other
correspondence exchanged with the Quinsa Licensees relating to the
performance by the Quinsa Licensees of their obligations or the
exercise by the Quinsa Licensees of their rights, under the applicable
Sub-License Agreement, with this License Agreement or any of the
Sub-License Agreements;
d) (i) no Sub-License Agreement shall limit or affect Quinsa's obligations
hereunder, and Quinsa shall remain liable for all of its obligations
hereunder, and (ii) Quinsa shall be jointly and severally liable for
the performance of all obligations of any Quinsa Licensee under the
relevant Sub-License Agreement; and
e) it is understood and agreed that the obligations of Quinsa arising
under this License Agreement may be carried out directly by Quinsa or
indirectly through the Quinsa Licensees pursuant to the Sub-License
Agreements.
13.12. AmBev Rights and Obligations. It is understood and agreed that,
notwithstanding any provision of this License Agreement to the contrary, all
intellectual property rights licensed by AmBev to Quinsa hereunder, including,
without limitation, the rights to the Marks, AmBev Recipes and Technical
Industrial Information, are owned by Subsidiaries of AmBev, and that the rights
and obligations of AmBev arising under this License
28
Agreement may be carried out directly by AmBev or indirectly through its
Subsidiaries. By executing this Agreement, Companhia Brasileira de Bebidas
("CBB"), a Subsidiary of AmBev, hereby agrees to carry out the rights and
obligations of AmBev under this License Agreement to the extent that CBB is the
owner of the Marks and the other Intellectual Property licensed hereby. In
addition, unless the context otherwise requires, any reference contained in this
License Agreement to AmBev shall be deemed to include AmBev and its
Subsidiaries; provided that AmBev shall remain responsible for the performance
of its obligations hereunder.
13.13. Representations And Warranties
13.13.1. AmBev represents and warrants that:
(a) it has all requisite corporate power and authority to execute and
deliver this License Agreement and to consummate the transactions contemplated
hereby;
(b) AmBev's execution and delivery of, and performance of its obligations
under, this License Agreement has been duly and validly authorized by all
requisite action on the part of the AmBev, and this License Agreement
constitutes a valid and binding obligation of AmBev, enforceable against it in
accordance with its terms, except as enforceability hereof may be limited by any
applicable bankruptcy, reorganization, insolvency or other laws affecting
creditors' rights generally or by general principles of equity;
(c) the execution, delivery and performance by AmBev of this License
Agreement, the consummation of the transactions contemplated hereby and
compliance with the provisions hereof do not (a) violate in any material respect
any constitution, law, statute, treaty, rule, ordinance, permit, certificate
directive, requirement regulation or order of any federal, state, municipal, or
other government, governmental department, commission, board, bureau, agency or
instrumentality, or any court or tribunal, to which AmBev or any of its
Subsidiaries or any of its assets is subject, (b) violate any provision of the
memorandum and articles of association and other organizational documents of
AmBev or any of its Subsidiaries, (c) conflict with, result in a material breach
of, constitute a material default under, result in the acceleration of, create
in any party the right to accelerate, terminate, modify or cancel, or require
any notice under any material contract or agreement to which the AmBev or any of
its Subsidiaries is a party or by which any of its respective assets is bound or
(d) result in the imposition of any security interest, pledge, lien, bailment
(in the nature of a pledge or for purposes of security), mortgage, deed of
trust, the grant of a
29
power to confess judgment, conditional sale or title retention agreement
(including any lease in the nature thereof), charge, encumbrance, easement,
reservation, restriction, right of first refusal or first offer, option,
commitment or other similar arrangement or interest in real or personal
property, whether oral or written, upon any of the assets of AmBev or any of its
Subsidiaries; and
(d) no approval, authorization, order or consent of, declaration to, or
registration or filing with, any Governmental Entity is required for the valid
execution and delivery by it of this License Agreement or the performance of its
obligations hereunder.
13.13.2. Quinsa represents and warrants that:
(a) it has all requisite corporate power and authority to execute and
deliver this License Agreement and to consummate the transactions contemplated
hereby;
(b) Quinsa's execution and delivery of, and performance of its obligations
under, this License Agreement has been duly and validly authorized by all
requisite action on the part of Quinsa, and this License Agreement constitutes a
valid and binding obligation of Quinsa, enforceable against it in accordance
with their terms, except as enforceability thereof may be limited by any
applicable bankruptcy, reorganization, insolvency or other laws affecting
creditors' rights generally or by general principles of equity;
(c) the execution, delivery and performance by Quinsa of this License
Agreement, the consummation of the transactions contemplated hereby and thereby
and compliance with the provisions hereof do not (a) violate in any material
respect any constitution, law, statute, treaty, rule, ordinance, permit,
certificate directive, requirement regulation or order of any federal, state,
municipal, or other government, governmental department, commission, board,
bureau, agency or instrumentality, or any court or tribunal, to which the Quinsa
or any of its Subsidiaries or any of its assets is subject, (b) violate any
provision of the memorandum and articles of association and other organizational
documents of Quinsa or any of its Subsidiaries, (c) assuming that Quinsa enters
into a Sub License Agreement with its Subsidiary Quilmes International (Bermuda)
Limited ("QIB") as contemplated by Section 13.11 conflict with is impaired by,
result in a material breach of, constitute a material default under, result in
the acceleration of, create in any party the right to accelerate, terminate,
modify or cancel, or require any notice under any material contract or agreement
to which the Quinsa or any of its Subsidiaries is a party or by which any of its
30
respective assets is bound or (d) assuming that Quinsa enters into a Sub License
Agreement with QIB as contemplated by Section 13.11 result in the imposition of
any security interest, pledge, lien, bailment (in the nature of a pledge or for
purposes of security), mortgage, deed of trust, the grant of a power to confess
judgment, conditional sale or title retention agreement (including any lease in
the nature thereof), charge, encumbrance, easement, reservation, restriction,
right of first refusal or first offer, option, commitment or other similar
arrangement or interest in real or personal property, whether oral or written,
upon any of the assets of Quinsa or any of its Subsidiaries; and
(d) no approval, authorization, order or consent of, declaration to, or
registration or filing with, any Governmental Entity is required for the valid
execution and delivery by it of this License Agreement or the performance of its
obligations hereunder; and
(e) it has all material permits and licenses necessary to perform its
obligations pursuant to this License Agreement as in existence on the date
hereof.
14. DEFINITIONS.
14.1. As used herein, the following terms, which may not be otherwise defined
herein, shall have the meanings specified below (equally applicable to both the
singular and plural forms):
a) "AFFILIATE" of any Person means another Person that directly or
indirectly, through one or more intermediaries, controls, is controlled
by, or is under common control with, such first Person.
b) "AGREEMENT YEAR" means: (a) for the year 2003, the period commencing on
the Effective Date and ending on December 31, 2003; and (b) for each
subsequent year after 2003, the twelve-month period commencing on
January 1 of such year and ending on December 31 of such year;
provided, however, that in the event of termination of this License
agreement, the Agreement Year shall end on the date of termination.
c) "AMBEV DIRECTORS" has the meaning ascribed to it in Section 11.3.
d) "AMBEV RECIPES" means those Beer-related formulae and processes
specified by AmBev for use by Quinsa in connection with the production
of Licensed AmBev Beer.
31
e) "ATTACHMENT" means an attachment to this License Agreement, as amended
from time to time in accordance with the provisions of this License
Agreement. The list of Attachments to this License Agreement is the
following:
Attachment A - Marks
Attachment B - List of breweries currently operated or owned by Quinsa
Attachment C - List of Quinsa Licensees
Attachment D - Form of monthly reports
f) "BAC" means Beverage Associates (BAC) Corp., a British Virgin Islands
corporation.
g) "BANKRUPTCY EVENT" means with respect to either Party (a) a
declaration, judgment or order of bankruptcy by a court against such
Party under any applicable bankruptcy or insolvency laws, including
laws applicable in the Territory, as now existing or as hereafter
amended or becoming effective, or (b) the dissolution or liquidation of
such Party.
h) "BRAZILIAN BEER" has the meaning ascribed to it in Section 2.1.a).
i) "BEER" means any fermented alcoholic or non-alcoholic malt beverage.
j) "BUDGET YEAR" means: (a) for the year 2003, the period commencing on
the date of approval of the budget for Quinsa for the year 2003 by the
Board of Directors and ending on December 31, 2003; and (b) for each
subsequent year after 2003, the twelve-month period commencing on
January 1 of such year and ending on December 31 of such year.
k) "CHANGE OF CONTROL" means that the Permitted Holders cease to be the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934), directly or indirectly, of a majority
in the aggregate of the total voting power of the voting stock of
Quinsa, whether as a result of issuance of securities of Quinsa, any
merger, consolidation, liquidation or dissolution of Quinsa, any direct
or indirect transfer of securities by any Permitted Holder or
otherwise; provided that for purposes of this definition, (i) the
Permitted Holders shall be
32
deemed to beneficially own any voting stock of an entity (the
"specified entity") held by any other entity (the "parent entity") so
long as the Permitted Holders beneficially own (as so defined),
directly or indirectly, in the aggregate a majority of the total voting
power of the voting stock of the parent entity; and (ii) BAC shall be
deemed to own, without duplication, all Remaining Shares (as defined in
the Stock Purchase Agreement) held by the Escrow Agent (as defined in
the Escrow Agreement dated as of January 31, 2003 among AmBev, Quinsa
and BAC, hereinafter the "ESCROW AGREEMENT") from time to time under
the Escrow Agreement and all Remaining Shares pledged to AmBev under
the Share Pledge Agreement dated as of January 31, 2003 among AmBev,
BAC and Quinsa (the "SHARE PLEDGE AGREEMENT").
l) "COMMERCIAL BREWING" means production of Licensed AmBev Beer for sale.
m) "CONFIDENTIAL INFORMATION" refers to confidential, non-public or
proprietary information disclosed by or on behalf of AmBev to or for
the benefit of Quinsa, including information generated by computer and
stored on hard disk, floppy diskettes or any other electronic medium,
including, without limitation, any such information relating to: (i)
the Marks and Intellectual Property, (ii) Licensed AmBev Beer, (iii)
Technical Industrial Information; and (iv) any information covered by
the following categories and not by the three categories
aforementioned: AmBev's or any of its Affiliates' research, strategic
plans, development, product design, engineering data, specifications,
processes, formulations, production operations or techniques, equipment
layout, planning, purchasing, accounting, finance, selling, marketing,
market research, promotional plans, customers, suppliers, and other
information of a similar nature. Confidential Information may include
designs, specifications and know-how in which AmBev, its Affiliates or
their suppliers or subcontractors have proprietary interests, or with
respect to which AmBev or any of its Affiliates has an obligation to
third parties to maintain in confidence. Confidential Information also
refers to any analyses, compilations and documents containing any of
the information referred to above, whether prepared by the Parties or
others. Notwithstanding the foregoing, Confidential Information shall
not include information which: (a) is widely known in the industry at
the time of disclosure (other than as a result of disclosure by Quinsa
or its Representatives); (b) is lawfully in the possession of Quinsa
prior to its disclosure, as evidenced by Quinsa's
33
written materials; or (c) has been lawfully obtained by Quinsa from a
third party or third parties who were not in breach of any
nondisclosure obligation to Quinsa or AmBev or any of AmBev's
Affiliates.
n) "EFFECTIVE DATE" means the date upon which this License Agreement is
duly executed by both Parties.
o) "F.O.B." shall have the meaning attributed to in the Incoterms
published by the International Chamber of Commerce.
p) "FORCE MAJEURE" has the meaning ascribed to it in Section 9.5.
q) "GOVERNMENTAL ENTITY" means any national, state, local or foreign
government or any court of competent jurisdiction, administrative
agency or commission or other governmental authority or
instrumentality, domestic or foreign;
r) "INTELLECTUAL PROPERTY" means all matters and things involving
intellectual property as the term is used and understood in the trade
pertaining to Beer or the method of manufacture or advertising and
promotion of Beer, including but not limited to the Marks, AmBev
Recipes, Confidential Information and Technical Industrial Information
as well as any related patents, copyrights (including copyright rights
in the packaging, labeling, ornamentation, advertising and promotional
activities, plans and materials , including any marketing plans, for
Beer) and other related intellectual property rights.
s) "LICENSED AMBEV BEER" has the meaning ascribed to it in Section 1.2.a).
t) "LOSS" has the meaning ascribed to it in Section 10.
u) "MARKETING MANAGER" has the meaning ascribed to it in Section 3.2.
v) "MARKETING PLAN" means the marketing plan approved in accordance with
the provisions set forth in Section 3.4 of this License Agreement.
w) "MARKETING COSTS" means all payments by Quinsa to third parties in
connection with: (i) the advertisement and development of name
recognition of Licensed AmBev Beer in the Territory; (ii) the
development and implementation of polices regarding the position of
Licensed AmBev Beer and the general creative strategy to be used for
the marketing and promotion of Licensed AmBev Beer in the Territory;
34
(iii) the promotion of actual sales of, and consumer interest in,
Licensed AmBev Beer in the Territory; and (iv) the implementation of
trade and promotional activities relating to Licensed AmBev Beer
including, without limitation, UTC promotional activities, POS
material, sponsorships, merchandisers and IDA's related to supermarket
costs; provided that, Marketing Costs shall include only net expenses
and shall not include value added taxes and other recoverable taxes,
or, in relation to Quinsa, except to the extent expressly permitted in
the Marketing Plan, the costs of employees or other overhead costs,
costs of price promotions such as bonuses and discounts, or costs of
head office promotional support, commissions or rebates.
x) "MARKS" means all trademarks, service marks or trade names owned by,
AmBev and its Affiliates and used in connection with the production,
marketing, distribution or sale of Beer now or at any time prior to the
termination of this License Agreement, including but not limited to
those listed on Attachment A hereto. In addition, for purposes of
Sections 4.1(c), 4.1(g), 4.3, 9.7, the term "Marks" shall also include
any variations on the Marks, including variations not permitted by this
License Agreement, any marks confusingly similar to the Marks and any
Intellectual Property.
y) "OTHER INDEMNIFIED PERSONS" has the meaning ascribed to it in Section
10.
z) "PARTY" or "PARTIES" means either or both of the signatories of this
License Agreement.
aa) "PERMITTED HOLDERS" means either AmBev and its Affiliates, as a group,
or AmBev together with BAC; provided that for purposes of this
definition, (i) the Permitted Holders shall be deemed to beneficially
own any voting stock of an entity (the "specified entity") held by any
other entity (the "parent entity") so long as the Permitted Holders
beneficially own (as so defined), directly or indirectly, in the
aggregate a majority of the total voting power of the voting stock of
the parent entity; and (ii) BAC shall be deemed to own, without
duplication, all Remaining Shares (as defined in the Stock Purchase
Agreement) held by the Escrow Agent (as defined in the Escrow
Agreement) from time to time under the Escrow Agreement and all
Remaining Shares pledged to AmBev under the Share Pledge Agreement.
35
bb) "PERSON" means any individual, firm, corporation, partnership, limited
liability company, trust, joint venture, Governmental Entity or other
entity.
cc) "QUINSA LICENSEES" has the meaning ascribed to it in Section 13.11.
dd) "QUINSA BOARD OF DIRECTORS" means the board of directors of Quinsa at
any time, and from time to time.
ee) "REPRESENTATIVES" of any Person means the Affiliates, directors,
officers, employees, agents, advisors and representatives of such
Person.
ff) "SALES MANAGER" has the meaning ascribed to it in Section 3.3.
gg) "SHARE EXCHANGE AGREEMENT" has the meaning ascribed to it in the
preamble of this License Agreement.
hh) "SHAREHOLDERS' AGREEMENT" means the shareholders' agreement to be
executed among Quinsa, AmBev and Beverage Associates Corporation, as
provided in Exhibit F to the Stock Purchase Agreement.
ii) "STOCK PURCHASE AGREEMENT" means the stock purchase agreement dated as
of May 1st, 2002, between AmBev and BAC.
jj) "SUB-LICENSE AGREEMENTS" has the meaning ascribed to it in Section
13.11.a).
kk) "SUBSIDIARY" of any Person means another Person, an amount of the
voting securities, other voting ownership or voting partnership
interests of which is sufficient to elect at least a majority of its
Board of Directors or other governing body (or, if there are no such
voting interests, fifty percent (50%) or more of the equity interests
of which) is owned directly or indirectly by such first Person or by
another subsidiary of such first Person.
ll) "TECHNICAL INDUSTRIAL INFORMATION" refers to information or data
disclosed by or on behalf of AmBev to or for the benefit of Quinsa and
its Affiliates relating to: (i) the manufacturing processes related to
the production of Licensed AmBev Beer and (ii) the AmBev Recipes; and
(iii) in the event AmBev licenses new products to Quinsa, such new
products of AmBev or its Affiliates and their formulation, as soon as
commercially marketed by AmBev or its Affiliates. It is understood,
36
however, that Technical Industrial Information does not include the
following: (a) information and data which AmBev or its Affiliates does
not have a right to disclose or the disclosure of which would require
the payment of compensation to a third party; and (b) any other
technology used by AmBev or its Affiliates in Brazil or elsewhere or
held by AmBev or its Affiliates under a confidentiality or similar
agreement with a third party.
mm) "TERRITORY" means Argentina, Paraguay, Uruguay, Bolivia and Chile and
any other country or region in which the Parties hereafter mutually
agree to do business together and jointly decide to include in the
definition of Territory.
nn) "U.S." means all that geographical area encompassing the United States
of America, including its territories, dependencies and possessions.
37
IN WITNESS WHEREOF, the Parties have executed this License
Agreement as of the day and year first written above.
Quilmes Industrial (Quinsa) Societe Anonyme
________________________________________
Name: /s/ Xxxxxxx-Xxxxx de Montalembert /s/ Xxxxxxx Xxxxxx Xxxxxxxx
Title: Chairman Chief Executive Officer
Companhia de Bebidas das Americas - AmBev
________________________________________
Name: /s/ Magim Rodriguez Jr. /s/ Xxxx Xxxxxx Xxxxx Xxxxx
Title: CEO CFO
Companhia Brasileira de Bebidas - CBB
________________________________________
Name: /s/ Magim Rodriguez Jr. /s/ Xxxx Xxxxxx Xxxxx Xxxxx
Title:
38
