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EXHIBIT 10.5
CONTRACT BREWING AND PACKAGING AGREEMENT
This Agreement is made this 29th day of April, 1997, by and between
ANHEUSER-XXXXX, INCORPORATED ("ANHEUSER-XXXXX"), a Missouri corporation, with
its principal place of business at Xxx Xxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000,
and AMERICAN CRAFT BREWING INTERNATIONAL LIMITED ("AMBREW"), a Bermuda
corporation, with its principal place of business at Xxx Xxxxxxxx Xxxxxxxxx,
Xxxxxxxx, Xxxxxxxxx 00000.
BACKGROUND
A. ANHEUSER-XXXXX has brewed, sold and advertised beer throughout
the United States and worldwide.
B. ANHEUSER-XXXXX desires to grant a license to AMBREW and
Cerveceria Rio Xxxxx X.X. de C.V. to utilize the Trademarks and the Formula
referred to herein in connection with the manufacturing and packaging of beer
in Mexico.
C. AMBREW desires to utilize the Trademarks and Formula, and
desires to cause its majority controlled subsidiary, Cerveceria Rio Xxxxx X.X.
de C.V, to utilize such Trademarks and Formula.
AGREEMENT
1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings indicated below:
1.1 "Approved Brewery" means the brewery controlled by AMBREW in
Tecate, Mexico, and approved in writing by ANHEUSER-XXXXX for brewing and/or
packaging of PRODUCT.
1.2 "PRODUCT" means the beer brewed and packaged by AMBREW and/or
AMBREW's subsidiary, Cerveceria Rio Xxxxx X.X. de C.V. (using the Formula)
pursuant to this Agreement and named by ANHEUSER-XXXXX, at its sole discretion,
or any other beer brewed by AMBREW at ANHEUSER-BUSCH's request.
1.3 "Confidential Information" means any data, analysis,
compilations, forecasts, studies, specifications, formulations, experience,
samples, models, procedures, processes, devices, other documents or information
relating to the business or affairs of AMBREW or ANHEUSER-XXXXX (including, in
relation to ANHEUSER-XXXXX, the Formula). Confidential Information shall not
include information (other than, in relation to ANHEUSER-XXXXX, such
information which collectively makes up the Formula) which:
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(i) was already known to the party receiving it at the
time of its receipt, unless such information was provided
subject to an obligation of confidentiality;
(ii) was published or otherwise generally known to the
public at the time of its disclosure to the receiving party;
or
(iii) became known or available to the receiving party from
a source having a right to make such disclosure and without
restriction on said disclosure.
1.4 "CPI Adjustment" is the product derived by multiplying: (i)
the then-existing Price for the term in effect (ii) by one-half of the
fraction, the numerator of which is the "CPI" (defined herein) as reported on
December 31 of the current calendar year for the term in effect, and the
denominator of which is the CPI as reported on December 31 of the immediately
preceding calendar year. The term "CPI" is the Consumer Price Index for All
Urban Consumers for All Cities which is published monthly by the Bureau of
Labor Statistics of the U.S. Department of Labor, or its successor.
1.5 "Effective Date" means the execution date of this Agreement.
1.6 "Force Majeure" means causes or contingencies beyond the
reasonable control of the respective parties, including but not limited to acts
of God, war, hostilities between nations, rebellion, riots, civil commotions,
accidents, explosions, fire, wind, cyclones, storms, earthquakes, floods,
epidemics, acts of a public enemy, strikes, lockouts, sabotages, boycotts,
picketing, labor disturbances or labor difficulties of any and all kinds,
embargo, delays in the transportation of materials, delays or defaults caused
by public carriers, governmental actions, laws, regulations or orders, which
shall render it impossible for such party to perform its obligations under this
Agreement. If, as a result of legislation or other governmental action, any
party or parties are precluded from receiving any benefit to which they are
entitled hereunder, then the parties shall review the terms of this Agreement
so as to use their best efforts to restore the party or parties to the same
relative positions as previously obtained hereunder.
1.7 "Formula" shall mean any and all of ANHEUSER-BUSCH's
procedures, processes, technology, recipes (including, without limitation,
ANHEUSER-BUSCH's yeast, malt and other ingredients and brewing materials),
specifications, inventions, brewing processes, trade secrets, know-how, and
scientific and technical information necessary for the production and packaging
of an alcoholic malt beverage having the taste, color, makeup, character and
product profile corresponding to the PRODUCT and as more specifically contained
in the manual attached hereto as Exhibit 1 (as may be amended from time to time
by ANHEUSER-XXXXX), all of which shall be considered Confidential Information.
1.8 "Territory" means the countries of Mexico and the United States
of America, including the territories and possessions of the United States of
America.
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1.9 "Trademarks" shall mean all trademarks (whether or not
registered) and trademark registrations listed in Schedule A, as well as all
trademarks, trade names, slogans and designs now or hereafter owned by
ANHEUSER-XXXXX, some of which will appear on the labels and packaging of
PRODUCT or will be used in connection with the advertising, promotion or
marketing of PRODUCT.
2. APPOINTMENT
2.1 Pursuant to the license contained herein, ANHEUSER-XXXXX
hereby authorizes AMBREW to produce and package, and AMBREW agrees to produce
and package, PRODUCT at the Approved Brewery in accordance with the Formula,
subject to the terms of this Agreement. PRODUCT produced and packaged by
AMBREW under this Agreement shall be sold only to ANHEUSER-XXXXX and its
authorized agents.
2.2 ANHEUSER-XXXXX shall provide the technical advisory services
reasonably required by AMBREW in order to allow AMBREW to produce PRODUCT in
accordance with the Formula.
2.3 During the term of this Agreement, AMBREW and its affiliates
agree that they will not contract brew or package other malt beverages for
brewers that brew in excess of 1,000,000 barrels of malt beverages per year, as
determined by the Beer Institute or other reputable industry analyst designated
by ANHEUSER-XXXXX.
3. APPROVAL OF BREWERIES.
The Approved Brewery must meet ANHEUSER-BUSCH's requirements, in its
sole discretion, and be approved by ANHEUSER-XXXXX in writing no later than May
15, 1997.
4. PURCHASE OF BREWING MATERIALS
4.1 In order to assure the highest quality of PRODUCT, AMBREW
acknowledges that it is essential to use brewing materials and only ingredients
meeting the specifications set forth in the Formula. AMBREW shall purchase
from ANHEUSER-XXXXX, or other suppliers who are approved in writing by
ANHEUSER-XXXXX, the yeast, malt, hopping materials, silica xerogel, tannin,
diatomaceous earth and all other brewing and finished materials required to
produce PRODUCT; provided, however, that ANHEUSER-XXXXX shall not unreasonably
withhold its approval of any supplier proposed by AMBREW if such supplier is
capable of supplying such brewing materials and ingredients (other than yeast)
in accordance with the specifications set forth in the Formula or otherwise
specified by ANHEUSER-XXXXX, and on terms which are more favorable than those
offered by ANHEUSER-XXXXX. If AMBREW purchases yeast from ANHEUSER-XXXXX,
AMBREW shall promptly return all empty yeast kegs to ANHEUSER-XXXXX, at
AMBREW's expense, in a clean and sanitary condition. ANHEUSER-XXXXX shall have
the option, at any time, of supplying any or all of the brewing materials, at
ANHEUSER-BUSCH's cost, necessary to produce PRODUCT, and upon such action the
Price shall decrease as more fully set forth in Section 8 hereof.
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4.2 AMBREW shall not (i) authorize or permit any third party to
use any brewing materials or ingredients obtained from ANHEUSER-XXXXX or (ii)
sell, transfer or convey any brewing materials or ingredients obtained from
ANHEUSER-XXXXX to any third party.
4.3 If AMBREW purchases brewing materials from ANHEUSER-XXXXX,
AMBREW shall take title of such materials in the United States and shall be
responsible for importing such materials into Mexico at its sole cost and
expense.
5. PAYMENT OF COSTS: ADDITIONAL CAPACITY
5.1 AMBREW shall be responsible for the payment of the purchase
price, installation costs and any taxes associated with the acquisition of any
additional equipment or the upgrade of any existing equipment required by
AMBREW to produce PRODUCT in accordance with the Formula.
5.2 Upon a request by ANHEUSER-XXXXX for AMBREW to provide
additional capacity to produce PRODUCT at the Approved Brewery or for the
designation of an additional Approved Brewery, AMBREW will cooperate with
ANHEUSER-XXXXX. AMBREW will complete any modifications as soon as practicable
in order to allow for availability of the additional capacity when required by
ANHEUSER-XXXXX. AMBREW specifically agrees that (i) upon thirty (30) days
advance written notice by ANHEUSERBUSCH to AMBREW, AMBREW shall add a third
shift to the Approved Brewery to increase capacity of the Approved Brewery to
200,000 cases; and (ii) upon six (6) months advance written notice from a duly
authorized officer of ANHEUSER-XXXXX, AMBREW shall increase the overall
capacity of the Approved Brewery up to 300,000 or 400,000 cases per year to
meet ANHEUSER-BUSCH's demands, as ANHEUSER-XXXXX directs. In the event
ANHEUSER-XXXXX requests a capacity increase pursuant to Section 5.2(ii) and
such capacity increase is undertaken by AMBREW for the sole benefit of
ANHEUSER-XXXXX, ANHEUSER-XXXXX agrees that one-half of the cost of such
expansion, not to exceed $200,000 for an increase to 300,000 cases per year or
$400,000 for an increase to 400,000 cases per year, shall be attributed (i.e.,
no cash outlay) to ANHEUSER-XXXXX and shall be amortized by $1.00 per case for
each case purchased by ANHEUSER-XXXXX from AMBREW after completion of such
capacity increase. If this Agreement is terminated before reduction of such
attribution to $0, ANHEUSER-XXXXX shall pay to AMBREW such remaining
unamortized attribution amount in immediately available funds.
6. PRODUCTION AND PACKAGING: QUALITY CONTROL.
AMBREW agrees to produce and package PRODUCT exclusively for sale to
ANHEUSER-XXXXX and/or its authorized agents, and ANHEUSER-XXXXX agrees to
purchase PRODUCT from AMBREW, on the following terms:
6.1 Until and unless otherwise determined by ANHEUSER-XXXXX, and
subject to the limitations set forth in Section 7.4, AMBREW will sell to
ANHEUSERBUSCH such
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quantities of PRODUCT in such packages as ANHEUSER-XXXXX may order from time to
time. AMBREW represents and warrants to ANHEUSER-XXXXX that it shall have a
minimum annual production capacity available for PRODUCT of 30,000 cases
(twenty-four (24) twelve (12) ounce bottles) of beer at all times hereunder and
a minimum daily output of 520 cases. Further, AMBREW will use its best efforts
to have available at all times sufficient production capacity at its Approved
Breweries to satisfy ANHEUSER-BUSCH's requests.
6.2 All PRODUCT shall be brewed and packaged by AMBREW in
accordance with all applicable laws and regulations of the United States of
America and Mexico. Likewise, all bottles, cans, kegs and other packages of
the PRODUCT supplied by AMBREW hereunder shall be labeled in accordance with
all applicable laws and regulations and in accordance with specifications
furnished by ANHEUSER-XXXXX to AMBREW from time to time; provided, however,
that ANHEUSER-XXXXX shall be responsible for such labeling with respect to
items supplied by it to AMBREW. The label on each individual bottle or can of
PRODUCT shall also bear a statement to the effect that it is "brewed and
packaged by Cerveceria Rio Xxxxx X.X. de C.V. in Tecate, Mexico and imported by
Anheuser-Xxxxx, Inc." or such other notice as may reasonably be required by
ANHEUSER-XXXXX.
6.3 AMBREW shall monitor PRODUCT code dates and destroy, in
accordance with the policies of ANHEUSER-XXXXX from time to time, all PRODUCT
in its brewery warehouses which exceed the following age limits (measured from
date of packaging):
Bottles/Cans - 30 days
Kegs - 7 days
If the overaged PRODUCT is present at AMBREW's brewery warehouses due
to ANHEUSER-BUSCH's failure to comply with the forecast and ordering procedures
set forth in this Agreement, then the cost of destruction shall be borne by
ANHEUSERBUSCH. If the overaged PRODUCT is present at AMBREW's brewery
warehouses due to any other reason, then AMBREW shall bear the cost of such
destruction and shall reimburse ANHEUSER-XXXXX for ANHEUSER-BUSCH's
out-of-pocket costs related to such destruction, including but not limited to
packaging and brewing materials supplied to AMBREW for such destroyed product.
6.4 AMBREW shall purchase from ANHEUSER-XXXXX, or other suppliers
who are approved in writing by ANHEUSER-XXXXX, all primary and secondary
packaging materials, necessary for the packaging of PRODUCT hereunder,
including but not limited to all bottles, crowns, labels (if any), cartons,
carriers and boxes. ANHEUSERBUSCH shall promptly reimburse AMBREW for such
costs in addition to the Price; provided, however, that AMBREW shall be
responsible, and ANHEUSER-XXXXX shall have no obligation to reimburse AMBREW,
for any import duties, VAT or import fees related to such items.
6.5 AMBREW shall deliver to ANHEUSER-XXXXX the initial order of
PRODUCT no later than June 16, 1997. AMBREW hereby grants to ANHEUSERBUSCH
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access to the Approved Brewery and its other facilities by any of
ANHEUSERBUSCH's employees or representatives to assist AMBREW in meeting such
deadline, including, but not limited to, any brewing, engineering,
environmental, legal or other personnel.
6.6. PRODUCT shall be free from microbiological contamination or
defects in aroma, flavor or appearance. AMBREW shall ensure that PRODUCT is
produced and packaged at all times in accordance with the Formula, which may be
varied from time to time by ANHEUSER-XXXXX; and ANHEUSER-XXXXX shall provide,
at ANHEUSERBUSCH's expense, all reasonable technical assistance to enable
AMBREW to comply with any change in the Formula. ANHEUSER-XXXXX shall provide
AMBREW with any relevant know-how not contained in the Formula and, from time
to time, any improvements or amendments to either the Formula or such know-how.
6.7. ANHEUSER-XXXXX shall have the right, during normal business
hours, upon reasonable notice and at its expense, to verify AMBREW's compliance
with the Formula by (a) inspecting the Approved Brewery and all facilities and
equipment used by AMBREW to brew, package and store PRODUCT, as well as any
ingredients, processing aids, materials, supplies and containers used in
brewing or packaging PRODUCT; (b) tasting samples of PRODUCT at the Approved
Brewery; and (c) obtaining samples of the ingredients used in making PRODUCT.
Such inspection may include a complete review of the entire brewing and
packaging process for PRODUCT by one or more ANHEUSER-XXXXX brewmasters or
members of its technical staff.
6.8. Samples of packaged PRODUCT, ingredients, processing aids and
brewing water shall be provided (in accordance with the schedule set forth in
the Formula) unless ANHEUSER-XXXXX detects a problem which requires more
thorough sampling or unless ANHEUSER-XXXXX requests samples from one or more of
the various stages of brewing in which case AMBREW shall furnish such samples
as ANHEUSER-XXXXX may request. AMBREW shall also, at ANHEUSER-BUSCH's request,
provide ANHEUSER-XXXXX with the results of tests and analyses of PRODUCT made
by AMBREW, using normal packaged beer analyses as set forth in the Formula, as
well as other analytical methods acceptable to ANHEUSER-XXXXX or as mutually
agreed between the brewmasters of ANHEUSER-XXXXX and AMBREW. As appropriate,
ANHEUSER-XXXXX shall furnish its comments and recommendations to AMBREW with
respect to the samples and test results submitted by AMBREW as aforesaid.
AMBREW agrees to abide by ANHEUSER-BUSCH's determination in such matters and to
implement, at AMBREW's expense whatever corrective action ANHEUSER-XXXXX may
require under the circumstances in order to produce PRODUCT having a taste
which is satisfactory to ANHEUSER-XXXXX.
6.9. If ANHEUSER-XXXXX determines that the taste of PRODUCT is
unsatisfactory, it shall so notify AMBREW in writing and the parties shall
immediately work together in good faith in attempting to resolve such taste
problem. The first step shall be a meeting at the Approved Brewery or other
facility where the problem exists, which shall be held as soon as practicable,
but in any event within two calendar days after the date of such notice.
Depending on the severity of the problem, ANHEUSERBUSCH may require AMBREW to
(i) suspend brewing, packaging and shipment of PRODUCT until the problem
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is resolved to ANHEUSER-BUSCH's satisfaction, and (ii) recover from wholesalers
and retailers previous shipments of unsatisfactory PRODUCT, which AMBREW shall
then destroy or use in another mutually agreeable manner.
6.10. ANHEUSER-XXXXX shall provide AMBREW with full technical and
analytical support to assist AMBREW in identifying the problem and determining
the correct procedures for resolving the same. Until the problem is resolved,
AMBREW shall undertake sampling as requested by ANHEUSER-XXXXX, and only beer
which ANHEUSER-XXXXX has approved shall be packaged and sold as PRODUCT
pursuant to this Agreement. ANHEUSER-XXXXX and AMBREW shall continue to
cooperate in good faith to resolve the problem and shall take such action as
they shall agree is reasonably necessary in connection therewith.
6.11. ANHEUSER-BUSCH's determinations and conclusions in the foregoing
matters shall be final and shall not be subject to arbitration or judicial
review.
7. PROCEDURES RELATING TO FORECASTING AND ORDERING
7.1 Annual Volume Projection. ANHEUSER-XXXXX shall supply AMBREW,
on or before October 31 of each year, with a non-binding schedule of
ANHEUSER-BUSCH's projected monthly purchases by package for the following
calendar year (the "Annual Volume Projection").
7.2 Monthly Forecasts. On or before the 15th day of each month,
ANHEUSERBUSCH will provide to AMBREW a non-binding, month-by-month forecast of
ANHEUSER-XXXXX 's total requirements for production by AMBREW hereunder for the
three-month period commencing in the next month following the month in which
such forecast is given.
7.3 Inventory Information. AMBREW shall monitor inventory levels
of PRODUCT as well as packaging and brewing materials and will advise
ANHEUSERBUSCH weekly as to the levels of AMBREW's inventory of packaging and
brewing materials required for the production of the PRODUCT, and of any
anticipated shortages in the supply of any such materials.
7.4 Ordering Procedures. Subject to the other provisions of this
Agreement, all purchases by ANHEUSER-XXXXX hereunder shall be on an
order-to-order basis. Upon receipt by AMBREW of an order for PRODUCT which
complies with the foregoing requirements, each order shall represent a firm
commitment by ANHEUSER-XXXXX to purchase and a firm commitment by AMBREW to
sell and deliver the quantity and package mix of the PRODUCT so ordered,
subject to the following:
(i) ANHEUSER-XXXXX shall place firm orders, specifying the
quantity of each package, not later than 35 days prior to the
scheduled date of packaging and delivery, and shall be
obligated to take delivery of the products promptly upon
completion of packaging, which shall be no later than such 35
days.
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(ii) AMBREW shall use its good faith efforts to accommodate
any request for changes in firm orders if such request is
received within 30 days after receipt of the order.
7.5 Title. Risk of loss, damage or destruction to the PRODUCT
ordered by ANHEUSER-XXXXX hereunder shall pass from AMBREW to ANHEUSER-XXXXX at
the time of delivery by AMBREW to the ANHEUSER-XXXXX designated freight
forwarder at AMBREW's dock; provided, however, that title shall not pass until
PRODUCT reaches its destination as designated by ANHEUSER-XXXXX.
ANHEUSER-XXXXX shall notify AMBREW in writing of the name and address of the
freight forwarder to use with respect to the PRODUCT, and ANHEUSER-XXXXX shall
reimburse AMBREW for the cost and expense of such freight forwarder.
8. PRICING
ANHEUSER-XXXXX shall pay to AMBREW in United States of America currency
a fixed cost of Four and 40/1 00 Dollars (US$4.40) per case (the "Price") for
PRODUCT produced by AMBREW and ordered by ANHEUSER-XXXXX pursuant to this
Agreement; provided that (i) if ANHEUSER-XXXXX supplies at its cost any brewing
materials hereunder, the Price shall be reduced by the corresponding cost last
paid by AMBREW for such brewing material(s). In addition, the Price is based
upon an aggregate cost to AMBREW of the brewing materials equaling U.S.$1.4103
per case based upon an all malt formula. If the aggregate cost per case of the
brewing materials for the initial Formula is different than U.S.$1.4103 per
case, the Price shall be adjusted for any such change in the aggregate cost of
the brewing materials, and any subsequent change in such Formula will adjust
the Price equal to the change in the aggregate cost of such brewing materials.
All charges for PRODUCT ordered in accordance with Section 7.4 hereunder shall
be invoiced to ANHEUSER-XXXXX when shipped. AMBREW's invoice shall be due and
payable by electronic funds transfer thirty (30) days after the later of
delivery or the date of invoice. ANHEUSER-XXXXX shall not be responsible for
any other costs or expenses, including, but not limited to, VAT, Mexican beer
excise taxes or other special taxes.
9. CONFIDENTIAL INFORMATION; PROPRIETARY RIGHTS AND TRADEMARKS
9.1 AMBREW acknowledges that ANHEUSER-XXXXX has disclosed or will
disclose to AMBREW, whether directly or indirectly, certain Confidential
Information. AMBREW shall have no proprietary rights of any kind in such
Confidential Information or in the Trademarks. All rights in such Confidential
Information and in the Trademarks shall remain the exclusive property of
ANHEUSER-XXXXX. AMBREW shall not disclose any such Confidential Information or
make any such Confidential Information available, directly or indirectly, to
anyone other than those of its employees, agents, representatives or attorneys
who need such Confidential Information to enable them to perform their
obligations under this Agreement. AMBREW will not use such Confidential
Information or the Trademarks to produce or identify any beer other than
PRODUCT. AMBREW shall
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ensure that each of its employees, agents, representatives or attorneys who has
access to the Confidential Information shall keep the Confidential Information
secret. These secrecy obligations shall survive the termination of this
Agreement and each party's right to use the Confidential Information and
Trademarks shall immediately cease upon termination of this Agreement.
9.2 ANHEUSER-XXXXX acknowledges that AMBREW has disclosed or will
disclose to ANHEUSER-XXXXX certain Confidential Information. ANHEUSER-XXXXX
shall not have any proprietary rights of any kind in such Confidential
Information. All rights in such Confidential Information shall remain the
exclusive property of AMBREW, subject only to the rights expressly granted to
ANHEUSER-XXXXX herein. ANHEUSERBUSCH shall not disclose any such Confidential
Information or make any such Confidential Information available, directly or
indirectly, to anyone other than those of its employees, agents,
representatives or attorneys who need such Confidential Information to enable
them to perform their obligations under this Agreement. ANHEUSER-XXXXX shall
ensure that each of its employees, agents, representatives or attorneys who has
access to the Confidential Information shall keep the Confidential Information
secret. These secrecy obligations shall survive the termination of this
Agreement.
9.3 If either party learns of any misuse or unauthorized use by a
third party of any Confidential Information disclosed to it as referred to
above, it shall promptly notify the other party, whereupon the other party
shall take such action as it may reasonably deem necessary to protect such
Confidential Information against such misuse or unauthorized use, at its own
expense.
9.4 In order that ANHEUSER-XXXXX may at all times be assured that
AMBREW is taking adequate steps to protect ANHEUSER-BUSCH's Confidential
Information, AMBREW agrees to permit ANHEUSER-XXXXX or its designated
representative to enter upon any premises where the Confidential Information is
used, to inspect the measures being taken to protect the confidentiality of
ANHEUSERBUSCH's Confidential Information. AMBREW further agrees that after the
expiration or termination of this Agreement, it will permit, on reasonable
notice, the inspection of any of its facilities by an independent inspector, so
that ANHEUSER-XXXXX can determine whether ANHEUSER-BUSCH's Confidential
Information is being used.
10. LICENSE:ANHEUSER-XXXXX TRADEMARKS
10.1 ANHEUSER-XXXXX hereby grants to AMBREW, upon the terms and
conditions herein set forth, the non-exclusive and non-transferable right and
license during the term of this Agreement to use (i) the Formula to produce and
package PRODUCT pursuant to this Agreement; (ii) the Trademarks solely in
connection with the labeling and packaging of PRODUCT in the Territory; and
(iii) other copyrighted material of ANHEUSER-XXXXX in labeling and packaging of
PRODUCT; provided, however, that all Trademarks and copyrights of
ANHEUSER-XXXXX shall be and remain the exclusive property of ANHEUSER-XXXXX,
and all use thereof by AMBREW shall inure to the exclusive benefit of
ANHEUSER-XXXXX. Notwithstanding the foregoing, ANHEUSER-
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BUSCH or its affiliates may label, package, manufacture, advertise, promote,
distribute, otherwise use or sell in the Territory any product bearing the
Trademarks.
10.2 AMBREW will use the Trademarks only on PRODUCT manufactured,
packaged, and stored in strict compliance with specifications, standards and
directions established by ANHEUSER-XXXXX in writing from time to time. AMBREW
will use the Trademarks only on labels, containers, packages, advertising
materials, literature, and the like in strict compliance with written
instructions supplied to AMBREW by ANHEUSER-XXXXX, and ANHEUSER-XXXXX shall
have the right to approve in advance all uses of the Trademarks.
10.3 In order that ANHEUSER-XXXXX may at all times be assured that
goods on or in relation to which AMBREW uses the Trademarks are manufactured,
packaged, and stored in strict accordance with this Agreement, AMBREW will at
all reasonable times permit ANHEUSER-XXXXX to enter upon any premises where
such goods are, or where they are intended to be, used, manufactured, packaged,
or stored, so as to allow ANHEUSER-XXXXX to inspect the methods, processes,
containers and materials used by AMBREW in the manufacture, packaging, or
storage thereof and to procure samples of such goods, and AMBREW agrees to
submit, including by overnight courier if requested, samples of such goods and
materials used in the manufacture thereof to ANHEUSER-XXXXX upon request.
10.4 AMBREW represents and warrants that PRODUCT, its packaging and
sales shall meet or exceed all applicable laws, ordinances, standards,
regulations and guidelines in the Territory, including, but not limited to,
those pertaining to product safety, quality, labeling and propriety. AMBREW
agrees that it will not package any PRODUCT or cause or permit any PRODUCT to
be packaged or sold in violation of any such law, ordinance, standard,
regulation or guideline.
10.5 All PRODUCT packaging (primary and secondary), as well as
labels on such packaging, shall bear such Trademarks as ANHEUSER-XXXXX
specifies from time to time. The label on each container of PRODUCT shall bear
a statement to the effect that PRODUCT is "brewed and packaged by Cerveceria
Rio Xxxxx X.X. de C.V. in Tecate, Mexico and imported by Anheuser-Xxxxx, Inc."
or such other notice, if any, as may be required or deemed advisable by
ANHEUSER-XXXXX to preserve ANHEUSER-BUSCH's ownership of the Trademarks in the
Territory and the goodwill symbolized thereby.
10.6 The Trademarks shall remain the exclusive property of
ANHEUSER-XXXXX, whether or not registered in the Territory, and AMBREW shall
comply fully with ANHEUSER-BUSCH's instructions concerning the use of the
Trademarks. No right, title or interest of any kind in or to the Trademarks or
the registrations thereof is transferred by this Agreement to AMBREW, except a
nonexclusive license to use said Trademarks during the term and subject to the
terms and conditions of this Agreement. AMBREW agrees that as between the
parties ANHEUSER-XXXXX owns the Trademarks throughout the Territory. AMBREW
agrees that it will not attempt to register the Trademarks, or any marks
similar thereto, in any language or anywhere in the Territory. AMBREW further
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agrees that it will not contest the validity of the Trademarks or
ANHEUSER-BUSCH's ownership thereof, or take any action that would harm the
Licensed trademarks or impair ANHEUSER-BUSCH's rights therein. AMBREW's use of
the Trademarks will inure to the benefit of ANHEUSERBUSCH.
10.7 AMBREW shall at all times recognize, respect and protect
ANHEUSERBUSCH's right of exclusive ownership of the Trademarks, as well as all
of ANHEUSER-BUSCH's copyrights used in conjunction with the packaging,
advertising and promotion of PRODUCT, and AMBREW shall not take any action
which would in any way derogate, diminish or weaken such rights.
10.8 This Agreement and AMBREW's limited right to use the
Trademarks shall not apply to goods other than PRODUCT. ANHEUSER-XXXXX shall
have the exclusive right to license the manufacture. sale and distribution of
all other goods bearing the Trademarks
10.9 AMBREW agrees to notify ANHEUSER-XXXXX in writing of any
infringements or counterfeits of, or any unfair competition affecting the
Trademarks immediately upon gaining knowledge thereof, and to cooperate fully
in any action thereon which ANHEUSER-XXXXX may, in its sole discretion, deem
appropriate. AMBREW shall not, however, be entitled to take or institute any
action thereon, either by way of informal protest or legal, equitable or
criminal proceedings, without ANHEUSER-BUSCH's express written approval, nor
shall AMBREW be entitled to call upon ANHEUSER-XXXXX to take action thereon;
all such matters shall be entirely within the discretion of ANHEUSER-XXXXX.
ANHEUSER-XXXXX shall pay the third party costs and expenses of any actions
taken by AMBREW under this Section at the request of ANHEUSER-XXXXX. Any legal
proceedings instituted pursuant to this Section shall be for the sole benefit
of ANHEUSER-XXXXX.
10.10 The parties shall cooperate and jointly make such application
as ANHEUSER-XXXXX shall consider necessary or desirable for the registration of
AMBREW as a licensee of the Trademarks in the Territory or any part thereof and
will cooperate in obtaining and maintaining the trademark registrations.
AMBREW agrees to cooperate with ANHEUSER-XXXXX in the prosecution of any
trademark applications that ANHEUSER-XXXXX may desire to file or in the conduct
of any litigation relating to the Trademarks. AMBREW shall supply to
ANHEUSER-XXXXX such samples, containers, labels, sales information and similar
material and, upon ANHEUSERBUSCH's request shall procure evidence, give
testimony and cooperate with ANHEUSER-XXXXX as may reasonably be required in
connection with any such application or litigation.
10.11 ANHEUSER-XXXXX shall provide to AMBREW such technical
assistance in connection with the manufacturing, packaging and sale of PRODUCT
as may be required or requested from time-to-time by AMBREW, such technical
assistance to be provided by one of ANHEUSER-BUSCH's brewmasters or other of
its qualified employees.
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10.12 The parties agree that all artwork and designs created by
AMBREW and used or proposed to be used in connection with PRODUCT are works
made for hire within the meaning of the United States Copyright Act and shall
be the property of ANHEUSER-XXXXX. To the extent any artwork or design created
by AMBREW is not a work made for hire, AMBREW agrees to assign to
ANHEUSER-XXXXX the copyright in such artwork or design. The parties agree that
any trademark in connection with PRODUCT shall be the sole property of
ANHEUSER-XXXXX.
11. INSURANCE
11.1 AMBREW shall carry product liability insurance, in the amount
of US$1,000,000.00, naming ANHEUSER-XXXXX as additional insureds on its
policies and providing that ANHEUSER-XXXXX and ANHEUSER-XXXXX shall be notified
at least thirty days prior to cancellation of or a material change in any of
such policies. AMBREW shall furnish ANHEUSER-XXXXX with a copy of the current
insurance certificate confirming the existence of such insurance coverage.
Such coverage shall include the territories of both the United States of
America and Mexico.
11.2 AMBREW shall at all times during the term of this Agreement
carry "keyman" life insurance on Xxxxx Xxxxxxxx and Xxxxx Xxx of AMBREW.
12. INDEMNIFICATION
12.1 AMBREW agrees to indemnify, defend and hold harmless
ANHEUSERBUSCH from and against all losses, damages, costs and expenses
(including, without limitation, reasonable legal fees and costs) suffered or
incurred by either of them or by any of their employees, agents or directors in
respect of or resulting from (i) a claim by a third party for personal injury
or death resulting from the use or consumption of any PRODUCT produced by
AMBREW; and/or (ii) AMBREW's manufacture and packaging of PRODUCT; provided,
however, that in the event that such losses, damages, costs and expenses result
from a cause attributable to ANHEUSER-XXXXX or any of their employees, agents
or directors, ANHEUSER-XXXXX shall indemnify AMBREW to such extent against the
losses, damages, costs and expenses (including, without limitation, reasonable
legal fees, costs and expenses) suffered or incurred by AMBREW or any of its
employees, agents or directors in respect thereof.
12.2 ANHEUSER-XXXXX agrees to indemnify, defend and hold harmless
AMBREW from and against all losses, damages, costs and expenses (including,
without limitation, reasonable legal fees and costs) suffered or incurred by
them or by any of their employees, agents or directors in respect of or
resulting from AMBREW's use of the Trademarks pursuant to this Agreement.
13. TERMINATION.
This Agreement shall become effective on the Effective Date, and shall
continue in full force and effect thereafter until:
13
13.1 the parties shall mutually agree to terminate the Agreement;
13.2 either party shall violate in any material respect any of its
obligations under this Agreement and (if such default shall be curable) such
default shall continue unremedied for a period of 30 days after written notice
from the other party of such default, in which event the non-defaulting party
shall have the right to terminate this Agreement on written notice to the
defaulting party;
13.3 December 31, 1997; or
13.4 July 1, 1997, if the brewing, packaging and delivery of the
initial order of PRODUCT is not completed pursuant to the terms and conditions
contained herein by such date.
13.5 Termination of this Agreement shall be without prejudice to
the rights of either party accrued prior to the date of termination of this
Agreement; provided, that neither party shall have any liability to the other
party solely as a result of such termination as provided above.
13.6 Upon termination of this Agreement:
(i) AMBREW shall discontinue all use of the Trademarks and
any Confidential Information received from ANHEUSER-XXXXX;
(ii) ANHEUSER-XXXXX shall discontinue all use of any
Confidential Information received from AMBREW; and
(iii) each party shall immediately surrender and deliver to
the other party all Confidential Information received from the
other party, including any and all copies thereof and
extracts, and shall execute and deliver to the other party all
documents and take such action as the other party may
reasonably deem necessary to evidence (1) that such party has
ceased using the Confidential Information and (2) the
termination of such party's right to use the Confidential
Information.
13.7 Notwithstanding the foregoing in Section 13.3, ANHEUSER-XXXXX
shall have the option to renew this Agreement for successive one year periods
("Renewal Term") upon advance written notice no later than October 31 of each
calendar year upon all the terms and conditions contained herein except Price,
which shall be mutually agreed upon by the parties. If Price cannot be
mutually agreed by the parties hereto in good faith by December 31 of such
calendar year, the Price shall be determined according to the CPI Adjustment.
13.8 In addition to the foregoing, if a sale, merger or change of
control of AMBREW occurs, or the sale or other transfer of a substantial
portion of the assets of AMBREW, as determined by ANHEUSER-XXXXX in its sole
discretion, to any third party
14
occurs, ANHEUSER-XXXXX shall have the right to terminate this Agreement
effective immediately with no further obligation hereunder.
14. REPRESENTATIONS AND WARRANTIES.
14.1 ANHEUSER-XXXXX represents and warrants to AMBREW as follows:
(i) The execution, delivery and performance by
ANHEUSER-XXXXX of this Agreement is within the corporate power
and authority of ANHEUSER-XXXXX, and has been duly authorized
by all requisite corporate and other action on the part of
ANHEUSER-XXXXX, and constitutes the valid and binding
obligation of ANHEUSER-XXXXX in accordance with its terms.
(ii) The execution, delivery and performance by
ANHEUSER-XXXXX of this Agreement will not conflict with, or be
contrary to, any applicable law or governmental restriction or
any agreement or other undertaking on the part of
ANHEUSER-XXXXX or to which ANHEUSER-XXXXX or its properties
are bound or subject.
(iii) There is no litigation or other proceeding pending or,
to the knowledge of ANHEUSER-XXXXX, threatened against it,
which, if adversely determined, would prohibit the execution,
delivery or performance by ANHEUSER-XXXXX of this Agreement or
materially impair its ability to perform its obligations
hereunder.
14.2 AMBREW represents and warrants to ANHEUSER-XXXXX as follows:
(i) The execution, delivery and performance by AMBREW of
this Agreement is within the corporate power and authority of
AMBREW, and has been duly authorized by all requisite
corporate and other action on the part of AMBREW, and
constitutes the valid and binding obligation of AMBREW in
accordance with its terms.
(ii) The execution, delivery and performance by AMBREW of
this Agreement and the related Agreements will not conflict
with, or be contrary to, any applicable law or governmental
restriction or any agreement or other undertaking on the part
of AMBREW or to which AMBREW or its properties are bound or
subject.
(iii) AMBREW has the power and authority to bind Cerveceria
Rio Xxxxx X.X. de C.V. with respect to any and all obligations
and activities contained herein.
(iv) AMBREW owns 99.98% of the outstanding shares of
Cerveceria Rio Xxxxx X.X. de C.V.
15
(v) Cerveceria Rio Xxxxx X.X. de C.V. is a duly organized
and validly existing corporation in good standing under the
laws of the jurisdiction of its incorporation, and has the
legal and corporate power and authority to own, lease and
operate its assets and properties and to conduct its business
as now being conducted.
(vi) There is no litigation or other proceeding pending or,
to the knowledge of AMBREW, threatened against it, which, if
adversely determined, would prohibit the execution, delivery
or performance by AMBREW of this Agreement or materially
impair its ability to perform its obligations hereunder.
(vii) In order to fulfill the requirements of the United
States Foreign Corrupt Practices Act, AMBREW and its
affiliates have not taken nor will take any action which would
be illegal under United States' law by directly or indirectly
paying, offering, giving or promising to pay or give, or
authorizing the payment or gift of, any monies or other thing
of value to (A) an official or employee of any government, (B)
an official or employee of any agency or instrumentality of
any government, (C) a candidate for political office, (D) a
political party or party official in any non-U.S. territory or
country or (E) any other person, individual or entity at the
suggestion, request or direction or for the benefit of any of
the persons described in clauses (A) through (D) above, for
the purpose of (a) influencing any act or decision of any such
persons in his or its official capacity, including a decision
to fail to perform his or its official function, or (b)
inducing any such persons specified above to use his or its
influence to affect or induce any act or decision of such
government or instrumentality, in order to assist the parties
in obtaining or retaining business or to engage in acts or
transactions otherwise in violation of the Foreign Corrupt
Practices Act of the United States of America of 1977, as
amended from time to time.
(viii) AMBREW has received all consents, approvals, licenses,
permits and/or authorizations necessary for the execution,
delivery and performance by AMBREW of the transactions
contemplated hereunder, including from any and all
governmental authorities.
15. FORCE MAJEURE
If either party shall be prevented from performing any obligation
hereunder (other than an obligation for the payment of money) by reason of
Force Majeure, then such party shall not be deemed to be in default hereunder
by reason of its failure to perform such obligation; provided, that (i) the
party which is so prevented from performing shall give prompt notice to the
other party of the occurrence of such event of Force Majeure, as to the cause
for such circumstance, the expected duration of such condition and the steps
which it is taking to correct such circumstance and (ii) if such condition
shall continue for a period of more than 150 days, the other party shall have
the right to terminate this Agreement.
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16. ARBITRATION
16.1 All disputes arising under or in connection with this
Agreement, including its interpretation, validity, scope and enforceability,
shall be referred to and finally resolved by arbitration in accordance with the
UNCITRAL rules then in force (the "Rules") by three arbitrators (each of whose
native language is English). Each party shall nominate one arbitrator. The
two arbitrators so nominated by the parties shall attempt to reach agreement on
a third arbitrator within 30 days following confirmation of the second
arbitrator. If the third arbitrator has not been selected within such 30-day
period, the third arbitrator shall be appointed as provided by the Rules.
16.2 The arbitration shall be conducted in English and its seat
shall be where agreed by the parties, or failing their agreement as set by the
arbitrator, and such arbitration shall proceed pursuant to the Rules.
16.3 The parties shall facilitate the arbitration by producing,
upon request of each other, all documents and records relevant to the issues of
the arbitration, the scope and timetable of such requests and production to be
determined by the arbitrators and the Rules in the event of a dispute.
16.4 In the event of any arbitration or legal proceeding brought by
either party hereto against the other with regard to any matter arising out of
or relating to this Agreement, the final award shall include an award which
allocates and divides between the parties, on a basis which is just and
equitable under the circumstances, all costs of such proceedings, including
court costs, the arbitrators' fee and reasonable attorneys' fees (including
disbursements) incurred in connection with such proceedings, including, to the
extent allowed by applicable law, court costs.
16.5 At the request of either party, the arbitrators may take any
interim measures they deem necessary with respect to the subject matter of the
dispute, including measures for the conservation of the goods forming the
subject matter of the dispute, such as ordering their deposit with a third
person or the sale of perishable goods. Such interim measures may be set out
in the form of an interim award. The arbitrators may require the posting of
security for the cost of such interim measures. Any interim award of the
arbitrators may be enforced in a court of competent jurisdiction.
16.6 Judgment on the award of the arbitrators may be entered in any
court having jurisdiction over either party or over its assets, and neither
party shall interfere with the entering of such judgment on the award. Any
award of the arbitrators shall be enforceable pursuant to the provisions of the
Convention on the Recognition and Enforcement of Foreign Arbitral Awards,
T.I.A.S. No. 6997, 330 U.N.T.S. 38.
16.7 The award of the arbitrators may be, alternatively or
cumulatively, for monetary damages, an order or award requiring the performance
OF either mandatory on non-mandatory obligations, including specific
performance, injunctive relief or any other appropriate remedy.
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17. MISCELLANEOUS
17.1 Notices. Any notice to either party hereunder shall be given
in writing and shall be effective when received by the party to which it is
addressed, and may be sent by delivery, mail, telex or telefax, addressed to
the parties at the addresses set forth below or at such other address as either
party may specify as aforesaid from time to time hereafter:
If to ANHEUSER-XXXXX:
Anheuser-Xxxxx, Incorporated
Xxx Xxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Vice President - Michelob Brands, Specialty Beers and Imports
with copies to:
ANHEUSER-XXXXX COMPANIES, INC.
Xxx Xxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: General Counsel
FAX: (000) 000-0000
If to AMBREW:
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxx Xxx, Executive Vice President
with copies to:
Xxxxxx Xxxxxxx, Esq.
2400 Pan American Life Center
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
FAX: (000) 000-0000
17.2 Governing Law. This Agreement, including Section 16 hereof,
shall be governed, and construed in accordance with, the substantive laws of
the State of New York, including the Uniform Commercial Code as enacted in New
York, and without regard to its choice of laws, rules or provisions. The
parties specifically exclude the application of the 1980 United Nations
Convention on Contracts for the International Sale of Goods.
17.3 Amendments. This Agreement may be amended only by a written
instrument signed by both parties.
18
17.4 Successors and Assigns. Except as otherwise provided herein,
neither party shall have the right to assign or transfer its rights or
obligations under this Agreement without the consent of the other party.
Subject to the foregoing, this Agreement shall be binding upon, and inure to
the benefit of, the parties hereto and their respective successors and assigns.
17.5 Full Agreement. This Agreement and the other agreements
referred to herein, taken together, constitute the entire agreement of the
parties with respect to the matters covered hereby and thereby, and supersede
any prior or simultaneous oral or written agreements or understandings of the
parties relating to any such matter.
17.6 [INTENTIONALLY LEFT BLANK]
17.7 No Partnership or Joint Venture. Nothing contained herein
shall be deemed to create a partnership or joint venture between AMBREW and
ANHEUSER-XXXXX or to authorize either party to represent the other or to
contract any liability on behalf of the other party.
17.8 Severability. If any provision of this Agreement shall be
determined to be illegal or unenforceable, the remaining provisions of this
Agreement shall remain in full force and effect, and this Agreement shall be
construed as if the illegal or unenforceable provision were not a part hereof,
so long as the remaining provisions of this Agreement shall be sufficient to
carry out the overall intent of the parties as expressed herein.
17.9 No Waiver. No delay or forbearance by either party in
enforcing any obligation of the other party under this Agreement shall be
deemed to be a waiver of any rights of such party to enforce this Agreement,
and no waiver of any provision of this Agreement shall be valid unless in
writing and signed by the party against which such waiver is to be enforced. A
waiver of any provision of this Agreement on any one occasion shall not
constitute a waiver for any other purpose.
17.10 Right of First Refusal.
(i) Notwithstanding anything herein to the contrary, if
Cerveceria Rio Xxxxx X.X. de CM., a controlled subsidiary of
AMBREW, receives a bona fide offer to purchase any or all of
its interest in the Approved Brewery, and Cerveceria Rio Xxxxx
X.X. de C.V. desires to sell such interest pursuant to such
offer, then it or AMBREW must so notify ANHEUSER-XXXXX, and
must provide ANHEUSERBUSCH with a copy of such offer, the
identity of the offeror (including such offeror's beneficial
owners) and such other information as ANHEUSER-XXXXX may
request to substantiate the offeror's ability to consummate
the proposed transaction. Failure of the Cerveceria Rio Xxxxx
X.X. de C.V. or AMBREW to promptly provide such information
results in a tolling of the 30 day period referred to in the
next sentence until such reasonably requested information is
provided to ANHEUSER-XXXXX. For a period of 30 days following
the giving of such notice referenced above,
19
ANHEUSER-XXXXX has the option to acquire any or all of the
Cerveceria Rio Xxxxx X.X. de C.V.'s interest on the same terms
and conditions as set forth in the offer, including any
interest in the lease with respect to the Approved Brewery.
(ii) If Cerveceria Rio Xxxxx X.X. de C.V. receives a bona
fide offer to purchase a material portion of the assets of the
Approved Brewery, and Cerveceria Rio Xxxxx X.X. de C.V.
desires to sell a material portion of the assets pursuant to
such offer, Cerveceria Rio Xxxxx X.X. de C.V. or AMBREW must
so notify ANHEUSER-XXXXX, and must provide ANHEUSER-XXXXX with
a copy of such offer, the identity of the offeror (including
such offeror's beneficial owners) and such other information
as ANHEUSER-XXXXX may request to substantiate the offeror's
ability to consummate the proposed transaction. Failure of
the Cerveceria Rio Xxxxx X.X. de C.V. or AM BREW to promptly
provide such information results in a tolling of the 30 day
period referred to in the next sentence until such reasonably
requested information is provided to ANHEUSER-XXXXX. For a
period of 30 days following the giving of such notice
reference above, ANHEUSER-XXXXX has the option to acquire any
or all of Cerveceria Rio Xxxxx X.X. de C.V.'s interest in the
assets on the same terms and conditions as set forth in the
offer, including any interest in the lease with respect to the
Approved Brewery.
(iii) If Cerveceria Rio Xxxxx X.X. de C.V. or AMBREW desires
to close the Approved Brewery, Cerveceria Rio Xxxxx X.X. de
C.V. or AMBREW must promptly so notify ANHEUSER-XXXXX. For a
period of 30 days following the giving of such notice
reference above, ANHEUSER-XXXXX has the option to acquire any
or all of Cerveceria Rio Xxxxx X.X. de C.V.'s interest,
including any interest in the lease with respect to the
Approved Brewery, in the Approved Brewery for the book value
of such brewery as carried on the books of Cerveceria Rio
Xxxxx X.X. de C.V..
(iv) If AMBREW receives a bona fide offer to purchase any
or all of its interest Cerveceria Rio Xxxxx X.X. de C.V., and
AMBREW desires to sell such interest pursuant to such offer,
then AMBREW must so notify ANHEUSERBUSCH, and must provide
ANHEUSER-XXXXX with a copy of such offer, the identity of the
offeror (including such offeror's beneficial owners) and such
other information as ANHEUSER-XXXXX may request to
substantiate the offeror's ability to consummate the proposed
transaction. Failure of AMBREW to promptly provide such
information results in a tolling of the 30 day period referred
to in the next sentence until such reasonably requested
information is provided to ANHEUSER-XXXXX. For a period of 30
days following the giving of such notice referenced above,
ANHEUSER-XXXXX has the option to acquire any or all of
AMBREW's interest in Cerveceria Rio Xxxxx X.X. de C.V.'s on
the same terms and conditions as set forth in the offer,
including any interest in the lease with respect to the
Approved Brewery.
20
(v) With respect to this Section 17.1 0, Cerveceria Rio
Xxxxx X.X. de C.V. and/or AMBREW will use its best efforts to
obtain the consent of any landlord regarding the assignment of
the lease of the Approved Brewery to ANHEUSER-XXXXX or its
affiliate.
(vi) With respect to this Section 17.1 0, AMBREW represents
and warrants that it has, and shall have at all times during
the Term of this Agreement, the power to bind Cerveceria Rio
Xxxxx X.X. de C.V. to the obligations contained herein.
17.11 Exhibits. All of the exhibits and schedules attached to this
Agreement are deemed incorporated herein by reference.
17.12 Audit Rights. During the term of this Agreement and for a
period of at least two (2) years thereafter, AMBREW shall maintain such books
and records (collectively, "Records") as are necessary to substantiate that (i)
all invoices and other charges submitted to ANHEUSER-XXXXX for payment
hereunder were valid and proper, and (ii) no payments have been made, directly
or indirectly, by or on behalf of AMBREW to or for the benefit of any
ANHEUSER-XXXXX employee or agent who may reasonably be expected to influence
ANHEUSER-BUSCH's decision to enter into this Agreement, or the amount to be
paid by ANHEUSER-XXXXX pursuant hereto. (As used herein "payments" shall
include money, property, services and all other forms of consideration.) All
Records shall be maintained in accordance with generally accepted accounting
principles consistently applied. ANHEUSER-XXXXX and/or its representative
shall have the right, at any time during normal business hours, upon
twenty-four (24) hours' notice, to examine said Records. The provisions of
this paragraph shall survive the expiration or earlier termination of this
Agreement.
17.13 Publicity. Any publicity release, advertisement, filing,
public statement or announcement made by or at the request of any Party
regarding this Agreement is to be first reviewed by and must be reasonably
satisfactory to the other party.
17.14. Facsimile Execution. For purposes of executing this
Agreement, a document signed and transmitted by facsimile machine or telecopier
is to be treated as an original document. The signature of either party
thereon, for purposes hereof, is to be considered as an original signature, and
the document transmitted is to be considered to have the same binding effect as
an original signature on an original document. At the request of either party,
any facsimile or telecopy document is to be re-executed in original form by the
parties who executed the facsimile or telecopy document. No party may raise
the use of a facsimile machine or telecopier or the fact that any signature was
transmitted through the use of a facsimile or telecopier machine as a defense
to the enforcement of this Agreement or any amendment or other document
executed in compliance with this Section.
21
17.15 Counterparts. This Agreement may be executed by the parties
on any number of separate counterparts, and all such counterparts so executed
constitute one agreement binding on the parties notwithstanding that the
parties are not signatories to the same counterpart.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first written above.
ANHEUSER-XXXXX, INC. AMERICAN CRAFT BREWING
INTERNATIONAL LIMITED
By: /s/ August Xxxxx, IV By: /s/ Xxxxx X. Xxx
-------------------------------- -----------------------------------
Title: Vice President Marketing Title: Executive Vice President
----------------------------- --------------------------------
