Exhibit 10.4
MARKETING AND DISTRIBUTION SUB-LICENSE AGREEMENT
(On Beer Products Bearing the Registered Trademarks of Pabst Blue Ribbon)
THIS SUB-LICENSE AGREEMENT dated the __ day of ____________ 2003
BETWEEN:
INNO UP LIMITED, A BRITISH VIRGIN ISLANDS CORPORATION
having offices at
23/F., Hang Seng Causeway Bay Building
00 Xxx Xx Xxxxxx, Xxxxxxxx Xxx
Xxxx Xxxx
(hereinafter referred to as "SUB-LICENSOR")
AND
BLUE RIBBON BEER MARKETING COMPANY LIMITED,
A COMPANY INCORPORATED IN THE PEOPLE'S REPUBLIC OF CHINA
having offices at
Duanzhou Xx Xx
Zhaoqing, Guangdong 526020
People's Republic of China
(hereinafter referred to as "SUB-LICENSEE")
ARTICLE 1. RECITALS
1.1 Sub-Licensor has been granted the sole, exclusive, irrevocable right
and license to produce, market and distribute the Beverage in the Territory from
the Sub-Licensor's breweries located in the Territory, and to enter into
manufacturing sublicense agreements and/or marketing and distribution agreements
with other entities to produce and/or distribute the Beverage in any part of or
all of the Territory, under the Trademarks and using the Know-how and Trade
Secret but always subject to the terms of the Manufacturing License Agreement
signed between Pabst Brewing Company (hereinafter referred to "LICENSE HOLDER")
and Sub-Licensor dated September 5, 2003;
1.2 Sub-Licensor has been granted the right to use the registered the
trademarks "PABST BLUE RIBBON", "B and HOPLEAF Design", "COMBINATION OF PABST
(in Chinese characters) BLUE RIBBON and Design & HOP LEAF Design" and "PABST
BLUE RIBBON and Design" under registration numbers 559292, 559293, 559294 and
596190 in the Trade-marks Office in the People's Republic of China in
association with said Beverage;
1.3 Sub-Licensor has also been granted by License Holder the right to use
the Trade Secret essential to the production of said Beverage and valuable
information and Know-how of importance to the production of said Beverage;
Exhibit 10.4
1.4 The market and valuable reputation of said Beverage and goodwill for
said Trademarks has been established in the Territory; and
1.5 Sub-Licensor and Sub-Licensee wish to enter into this Marketing and
Distribution Sub-License Agreement (hereinafter referred to as the "Sub-License
Agreement") in order to facilitate the marketing, sales and distribution of said
Beverage in the Territory.
NOW THEREFORE THIS SUB-LICENSE AGREEMENT WITNESSETH that in
consideration of the promises and other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged) the parties hereto
agree as follows:
ARTICLE 2. DEFINITIONS
When used herein (or in any schedules or amendments hereto), the following
terms shall have the following meanings, respectively:
2.1 "SUB-LICENSE AGREEMENT" means this marketing and distribution
sub-license agreement, the recitals set forth in the preamble and all schedules
and amendments hereto, and "herein", "hereunder" or "hereof" means all and every
part of this Sub-License Agreement, unless the context clearly indicates
otherwise.
2.2 "BEVERAGE" means PABST BLUE RIBBON BEER, PABST GENUINE DRAFT
BEER and PABST ICE BEER and any other beverage that is an extension thereof or
is reasonably related to the trade name or trade dress of the Trademarks brewed
from barley malt and hops and other grains according to a secret process
originated, owned and possessed by License Holder.
2.3 "EFFECTIVE DATE" means November 7, 2003.
2.4 "MINIMUM GUARANTEED ANNUAL TONNAGE (MGAT)" shall mean the total amount
of production and distribution of Beverage using the Trademarks, as specified in
Section 8.1 (1), required to be produced and distributed each Yearly Period.
2.5 "MINIMUM GUARANTEED ANNUAL ROYALTY PAYMENT (MGARP)" shall mean the
aggregated annual minimum royalty payment required to be paid by Sub-Licensee to
License Holder or Sub-Licensor each Yearly Period, as set forth in Section 8.1
(2).
2.6 "KNOW-HOW" means the confidential internal industrial experience of
License Holder gained in the production and bottling of said Beverage and
includes, without limitation, the recipes, parameters required for optimal
working conditions of said secret process, information as to the types and
brands of essential or preferred raw materials, and information on essential or
preferred equipment for carrying out said secret process; any extensions and/or
renewals thereof and any marks and logos.
2.7 "CONTRACTUAL TERM" means each ten year term under this Sub-License
Agreement.
2.8 "TERM OF THIS SUB-LICENSE AGREEMENT" means the period from the
Effective Date to the "TERMINATION DATE", which for the purposes hereof shall
mean November 6, 2013 (the "FIRST CONTRACTUAL TERM").
Exhibit 10.4
2.9 "TERRITORY" means the People's Republic of China; excluding therefrom
Hong Kong.
2.10 "TRADEMARKS" means the trademarks "PABST BLUE RIBBON", "B and HOP LEAF
Design", "COMBINATION OF PABST (in Chinese characters) BLUE RIBBON and Design &
HOP LEAF Design" and "PABST BLUE RIBBON and Design" for mineral water registered
in the Trade-marks Office in the People's Republic of China, under registration
numbers 559292, 559293, 559294 and 596190 and any extensions and renewals
thereof and any similar marks or logos.
2.11 "TRADE SECRET" means the secret process employed for the production
and bottling of said Beverage owned and possessed by License Holder.
2.12 "YEARLY PERIOD" means a twelve month period commencing on the
Effective Date of this Agreement.
2.13 "SUB-LICENSEE", for purposes of calculating royalties and volumes,
shall mean Blue Ribbon Beer Marketing Company Limited (the "Marketing Company")
and any and all other breweries permitted and sub-licensed to produce and
manufacture Beverage, provided that there shall be no duplication in calculating
the volumes and royalties.
ARTICLE 3. MARKETING AND DISTRIBUTION SUB-LICENSE
3.1 Subject to the terms and conditions of this Sub-License Agreement,
Sub-Licensor hereby grants to Sub-Licensee, for and during the first Contractual
Term of this Sub-License Agreement, the sole, exclusive, irrevocable right and
license to market and distribute the Beverage in the Territory produced from all
permitted and sub-licensed breweries located in the Territory, under the
Trademarks and using the Know-how and Trade Secret but always subject to the
term of this Sub-License Agreement.
3.2 Sub-Licensee shall market and sell the Beverage in accordance with
minimum guaranteed annual tonnage as stipulated in this Sub-License Agreement
hereinafter. Sub-Licensee is hereby granted the right to regulate, direct and
coordinate the production volume of the Beverage to be produced by each of the
sub-licensed manufacturers authorized by the Sub-Licensor in the Territory.
3.3 Subject to the terms of this Sub-License Agreement, Sub-Licensee
covenants and agrees that it shall, during the currency of this Sub-License
Agreement and any extensions thereof, market, sell and distribute all of the
Beverage produced from all sub-licensed breweries located in the Territory,
subject to the predetermined ex-factory and market selling prices under the
supervision and coordination of the Blue Ribbon Beer Committee (hereinafter
referred to as the "Committee"). The details of the composition and functions
of the Sales Committee are set forth in Exhibit A.
ARTICLE 4. DISTRIBUTION
4.1 Sub-Licensee agrees that it will acquire all of the Beverage produced
by sub-licensed breweries authorized by the Sub-Licensor in the Territory for
onward distribution to market in order to unify the marketing, sales and
distribution of the Beverage in the Territory.
Exhibit 10.4
4.2 Sub-Licensee is required to appoint one representative as a committee
member to the Committee as organized by the Sub-Licensor in order to coordinate
the manufacturing, production and distribution of the Beverage in the Territory,
including the determination of ex-factory and market selling prices for the
Beverage and the related marketing strategies.
ARTICLE 5. QUALITY CONTROL AND ADVERTISING
5.1 Sub-Licensee shall not deviate in any manner from Sub-Licensor's
reasonable directions or otherwise effect any material changes to the designed
product image of the Beverage without having obtained Sub-Licensor's prior
written consent, upon full written disclosure of all proposed changes by
Sub-Licensee, which consent shall not be unreasonably withheld or delayed.
5.2 Sub-Licensee shall give Sub-Licensor sufficient written notice of any
newly designed advertising campaign for the Beverage prior to the commercial
launching.
5.3 The purpose of the provisions of this Article and of any other
provision of this Sub-License Agreement subjecting Sub-Licensee to any control
or supervision by Sub-Licensor and/or License Holder is to assure the
establishment and maintenance of the product image and intended perceived
characteristics of the Beverage for the protection of the License Holder's
goodwill in its Trademarks and reputation.
5.4 (a) Sub-Licensee shall submit all posters, advertisements,
commercials, flyers, xxxx board design, promotional publication and similar
materials to be used on or in connection with the distribution of the Beverage
("Marketing Materials") as soon as reasonably practicable in advance of the
launching thereof by Sub-Licensee, and, in any case, in order to provide
sufficient time for Sub-Licensor to complete their review and for Sub-Licensee
to implement requested modifications, if any.
Sub-Licensee shall submit to Sub-Licensor samples of Marketing
Materials for each new line extension of the Beverage prior to the formal
distribution thereof. Sub-Licensor shall have the right to require Sub-Licensee
to make modifications to Marketing Materials to the extent that Sub-Licensor, in
the exercise of its reasonable business judgment, concludes that such Marketing
Materials may have a material adverse effect on License Holder's goodwill in
Trademarks and reputation. Sub-Licensor shall advise Sub-Licensee of the
reasons for such disapproval and the actions, if any, which Sub-Licensee may
take to obtain Sub-Licensor's approval.
If Sub-Licensee distributes any Beverage that does not meet the image
standards of the Beverage, Sub-Licensor may, together with other remedies
available to it, by written notice require the specific distribution method or
strategy to be immediately suspended.
(b) Sub-Licensee agrees to permit Sub-Licensor upon reasonable request to
inspect Sub-Licensee's distribution network, warehousing facilities and delivery
records for the Beverage.
(c) The marketing and distribution undertaken by Sub-Licensee must conform
to the pre-agreed marketing image approved by Sub-Licensor. If in
Sub-Licensor's reasonable judgment the advertising of the Beverage originally
approved has subsequently deviated, Sub-Licensor may, in addition to other
remedies available to it, by written notice to Sub-Licensee, require advertising
of such Beverage to be immediately suspended.
Exhibit 10.4
(d) On every carton, label, can, keg, bottle or other container for the
Beverage produced and bottled pursuant to this Sub-License Agreement,
Sub-Licensee will use or cause others to use the Trademarks "Pabst", "Blue
Ribbon" or "Pabst Blue Ribbon" accompanied by the (R) symbol, as appropriate, or
such other notice as reasonably required by Sub-Licensor, and such carton,
label, can, keg, bottle or other container of the Beverage shall contain the
following wording in English or Chinese: "BREWED UNDER LICENSE FROM PABST
BREWING COMPANY, USA" or similar labeling that complies with Chinese trademark
labeling laws.
(e) Sub-Licensee shall not alter or modify the Licensed Trademarks in any
manner.
5.5 Sub-Licensor and Sub-Licensee, together with other sub-licensed
manufacturers of the Beverage in the Territory shall meet regularly at mutually
acceptable times at a venue mutually convenient to them for a Committee meeting,
at which time Sub-Licensee and other sub-licensed breweries shall provide
Sub-Licensor with their reports on (i) consumer acceptance and reaction with
respect to the various Beverages manufactured and sold; (ii) current market
conditions for sales of the Beverage; (iii) competition and current activity of
competitors; (iv) pricing strategy and current marketing programs; and (v) any
other information which may be reasonably requested by Sub-Licensor related to
the manufacturing, advertising, marketing and distribution of the Beverage in
the Territory.
5.6 Sub-Licensee will use its commercially reasonable efforts to market
and distribute the Beverage in the Territory during the term of this Sub-License
Agreement, including, without limitation, Sub-Licensee shall refrain from any
unfair trade practices or other activities detrimental to the goodwill or
reputation of the Trademarks. In addition, Sub-Licensee agrees that it will not
do any act to contravene Sub-Licensor's rights or take any action which would in
any way defeat or diminish the commercial value of the Trademarks in the
Territory.
5.7 The submissions required to be made by Sub-Licensee pursuant to the
provisions of this Article 5 shall be sent to Sub-Licensor twenty (20) days
prior to the anticipated date(s) of launching advertising campaigns. If
Sub-Licensor fails to respond within the five (5) days of receipt of the
submitted items, then Sub-Licensee shall give Sub-Licensor an additional five
(5) days notice within which to respond. If Sub-Licensor fails to respond then
the artwork and other submissions shall be deemed approved.
ARTICLE 6. TRADEMARKS
6.1 Sub-Licensor represents to Sub-Licensee that Sub-Licensor, as a
grantee or licensee, has obtained the right to use the said Trademarks, and the
said Trademarks, as possessed and registered by License Holder, are valid and
enforceable, and Sub-Licensor has the sole right to use them in the Territory.
Sub-Licensee covenants to refrain from infringing or diluting said Trademarks,
using trademarks that are confusingly similar to the trade dress of Trademarks
for the distribution of other malt beverages or taking any action which would
challenge License Holder's registrations or Sub-Licensor's rights to use said
Trademarks in the Territory. If Sub-Licensor in its reasonable opinion
determines that Sub-Licensee is engaging in such activity, Sub-Licensor shall
instruct Sub-Licensee in writing as to necessary remedial measures and
Sub-Licensee shall have thirty (30) days to cease its infringement or dilution
of Trademarks or trade dress. If Sub-Licensee fails to complete such remedial
measures within such thirty (30) days, Sub-Licensor may terminate this
Sub-License Agreement effective upon thirty (30) days written notice.
Exhibit 10.4
6.2 Sub-Licensor represents to Sub-Licensee and Sub-Licensee recognizes
that License Holder or its grantees or licensees possess registrations or other
protections of said Trademarks in jurisdictions other than within the Territory
and that none of such registrations or other trademarks and rights in other
jurisdictions are sub-licensed to Sub-Licensee under this Sub-License Agreement
or otherwise.
6.3 Unless terminated earlier under any other provisions of this
Sub-License Agreement, the sub-license granted to Sub-Licensee herein to use
said Trademarks for distribution shall terminate upon final expiration of
Sub-Licensor's rights in and to said Trademarks in the Territory.
Notwithstanding the preceding sentence, Sub-Licensor covenants and agrees that
it shall take all reasonable and necessary efforts to preserve its rights in and
to the said Trademarks (it being acknowledged and agreed by Sub-Licensor that
the sub-license granted to Sub-Licensee hereunder to use the Trademarks is
intended to exist for the Term of this Sub-License Agreement, subject to the
terms and conditions as stipulated in the Manufacturing License Agreement signed
between Sub-Licensor and License Holder), including, without limitation, urging
License Holder to preserve the registrations in and to the Trademarks in the
Territory if any, including attending to the renewal of the registration of each
of said Trademarks in the Trade-marks Offices in China.
6.4 The Trademarks have been registered by License Holder with the Chinese
Trade-marks Office. Sub-Licensee will use its commercially reasonable efforts
to refrain from any acts, conduct or omissions which would jeopardize the
maintenance of such registrations in full force and effect during the term of
this Sub-License Agreement, or so long as protected by applicable law, whichever
is shorter.
6.5 Neither Sub-Licensee, its parent nor any subsidiary or affiliate of
Sub-Licensee will register or attempt in any country to register copyrights in,
or to register as a trademark, service xxxx, design patent or industrial design
any of the Trademarks or derivations or adaptations thereof, or any word, symbol
or design which is so similar thereto as to suggest association with or
sponsorship by License Holder or any affiliate of License Holder or
Sub-Licensor. In the event of breach of the foregoing, Sub-Licensee agrees, at
Sub-Licensee's expense and at License Holder's or Sub-Licensor's request,
immediately to terminate the unauthorized registration activity and promptly to
execute and deliver, or cause to be delivered, to License Holder such
assignments and other documents as License Holder may require, to transfer to
License Holder all rights to the registrations, patents or applications
involved.
6.6 Sub-Licensee agrees that it will not use the Trademarks or the trade
dress of License Holder or any other material which is owned by License Holder
or Sub-Licensor in any way other than as herein authorized. In addition to any
other remedies License Holder or Sub-Licensor may have, Sub-Licensee agrees that
the profits from any use thereof on products other than the Beverage (unless
authorized by Sub-Licensor in writing,) and all profits from the use of any
other copyrighted material of License Holder without written authorization,
shall be payable to License Holder or Sub-Licensor.
6.7 Sub-Licensee agrees not to use any Trademarks or any trademark
incorporating all or any part of the Trademarks on any business sign, business
cards, stationery, or forms (except as licensed herein in connection with the
distribution of the Beverage) or to use any Trademark or any parts thereof as
the name of its business or any division thereof which may in any way dilute
License Holder's Trademarks, unless otherwise agreed by License Holder or
Sub-Licensor in writing. Sub-Licensee may submit business cards, signs,
stationary, or forms for
Exhibit 10.4
License Holder or Sub-Licensor's review. If License Holder or Sub-Licensor
fails to respond within five (5) days of the receipt of these items,
Sub-Licensee shall give License Holder or Sub-Licensor an additional five (5)
days within which to respond. If License Holder or Sub-Licensor fails to
respond within this additional time, the submitted items shall be deemed
approved.
ARTICLE 7. LEGAL REQUIREMENTS
7.1 Sub-Licensee shall strictly observe and comply with all relevant laws
and regulations to which it is subject concerning the Beverage and its storage,
transport, advertising, promotion and/or the disposition of used bottles or
other containers. In the event that the Beverage or any direction issued, or
requirement made, in respect thereto by Sub-Licensor, or any label, designation,
advertisement or other information should fail to comply with or be contrary to
any relevant law or regulation, Sub-Licensee shall so inform Sub-Licensor,
giving to Sub-Licensor, so far as Sub-Licensee is able to under applicable law
or regulation, an opportunity to assist Sub-Licensee in bringing about
compliance prior to exposure to damage, liability or penalty.
7.2 Sub-Licensee shall have no claim against License Holder or
Sub-Licensor for any loss, cost or expense including, without limitation, injury
to or death of any person or persons arising in any manner out of any product
liability claims which may be filed against Sub-Licensee or Sub-Licensor
alleging any defect in the Beverage of any nature arising directly from
Sub-Licensee's distribution of the Beverage.
7.3 In the event Sub-Licensor is served with a notice of legal process or
claims are made against it related to or arising from matters which are the
subject matter of this Sub-License Agreement, Sub-Licensor shall notify
Sub-Licensee of any such claims as soon as practicable but in no event later
than fifteen (15) business days of receiving notification thereof and shall
allow Sub-Licensee or its insurer, if any, the opportunity to assume direction
and control of the defense and/or settlement of any such suit or claim, using
counsel of Sub-Licensee's or its insurer's selection, which counsel shall be
reasonably satisfactory to Sub-Licensor. Sub-Licensor shall use all reasonable
efforts to cooperate with Sub-Licensee and its insurer in the disposition of any
such claim or suit defended by Sub-Licensee or its insurer, if any, upon request
and Sub-Licensee agrees to pay all reasonable and necessary fees and costs
including attorneys fees reasonably incurred by Sub-Licensor in connection with
the service of process and related litigation. In the event License Holder or
Sub-Licensor experiences any increases in its general liability insurance
premiums by reason of activities arising from or related to the subject matter
of this Sub-License Agreement, Sub-Licensee shall, upon thirty (30) days written
notice, pay the incremental difference of the License Holder's or Sub-Licensor's
insurance premiums attributable to any claims arising from this Sub-License
Agreement.
ARTICLE 8. REMUNERATION
8.1 In consideration of Sub-Licensor's granting Sub-Licensee the rights
and sub-licenses hereunder, Sub-Licensee agrees to coordinate with other
sub-licensed manufacturers duly authorized by Sub-Licensor in the Territory for
paying directly to Sub-Licensor, at the request of Sub-Licensor, an annual
royalty fee as follows:
(3) Sub-Licensee shall cause all sub-licensed and authorized manufacturers
in the Territory producing the Beverage to pay collectively to
Sub-Licensor, in accordance with the respective proportional share of
the total volume of the
Exhibit 10.4
Beverage manufactured, for the first 100,000 tonnes of the Beverage
produced during a Yearly Period a royalty of US$16.00 per tonne. The
sharing percentage for each of the authorized manufacturers of the
Beverage during a Yearly Period shall be regulated and allocated by
the Marketing Company under the supervision and coordination of the
Committee. For annual production of the Beverage over 100,000 tonnes
in a Yearly Period, Sub-Licensee shall cause all authorized
manufacturers to pay collectively, based on their respective
proportional share in the total volume, a royalty of US$14.00 per
tonne for all tonnes over 100,000.
AND
(2) As and for additional consideration for the grant of the Sub-License
hereunder, Sub-Licensee shall monitor and cause all authorized
manufacturers of the Beverage in the Territory to produce, and the
Sub-Licensee to distribute on an aggregated basis, the minimum
guaranteed tonnage and all authorized manufacturers of the Beverage
shall pay collectively to, based on the actual volume being produced
and on a proportional sharing basis, Sub-Licensor a minimum guaranteed
annual royalty payment during the First Contractual Term of this
Sub-License Agreement or on the Second and Third Contractual Terms as
outlined below, in U.S. dollars. Sub-licensee represents and agrees to
cause all authorized and licensed manufacturers to produce and to
distribute the Beverage, in accordance with the instruction and
coordination of the Committee, in order to achieve collectively, on an
aggregated basis, the following annual minimum tonnages of the
Beverage during the First Contractual Term hereof and each Contract
Term:
--------------------------------------------------------------
Contract Term Minimum Minimum
------------- ------- -------
On a proportional sharing Guaranteed Guaranteed
-------------------------- ---------- ----------
basis in accordance with the Annual Royalty Annual Tonnage
---------------------------- -------------- --------------
actual tonnages assigned by Payment (MGAT)
---------------------------- ------- ------
the Marketing Company (MGARP)
--------------------- -------
--------------------------------------------------------------
Years 1 to and including 10 US $1,780,000 110,000
First Contractual Term
--------------------------------------------------------------
Years 11 to and including 20 US $1,920,000 120,000
Second Contractual Term
--------------------------------------------------------------
Years 21 to and including 30 US $2,060,000 130,000
Third Contractual Term
--------------------------------------------------------------
8.2 Sub-Licensee shall ensure that all royalties payable by authorized
manufacturers hereunder are in U.S. Dollars (less any sums collected and
withheld on behalf of any duly constituted governmental authority on account of
taxes imposed on royalties generated by the activities contemplated by this
Sub-License Agreement, provided that said taxes are imposed similarly on all
other licensors similarly situated) and shall be payable quarterly, in arrears,
within 30 days of the end of each calendar quarter in respect to which the
payment is being made. Sub-Licensee shall also cause all the authorized
manufacturers of the Beverage to pay
Exhibit 10.4
collectively, on a proportional sharing basis, the balance of the Minimum
Guaranteed Annual Royalty Payment in the fourth quarter of each calendar year in
the event that the total actual royalty payments in the preceding three quarters
when added to the fourth quarter of actual royalties paid to Sub-Licensor are
less than the total Minimum Guaranteed Annual Royalty Payment (The True-up
Quarter). For any overdue royalty, Sub-Licensor shall be entitled to (i) a late
fee payable upon demand equal to ten (10) percent of the amount due plus (ii)
interest at the rate of 3 % over the LIBOR rate for the previous six (6) months
on all amounts more than fifteen (15) days past due.
ARTICLE 9. REPORTING
9.1 Sub-Licensee shall communicate its quarterly sales figures of the
Beverage in the Territory to Sub-Licensor, so as to be received by Sub-Licensor
no later than prior to the end of the month following the quarter to which the
figures pertain.
9.2 At the request of Sub-Licensor, Sub-Licensee shall furnish whatever
additional information Sub-Licensor may reasonably request or prescribe from
time to time to enable Sub-Licensor to ascertain compliance by Sub-Licensee of
all material provisions of this Sub-License Agreement.
9.3 Sub-Licensee shall keep complete and accurate records with respect to
any and all Beverages acquired and distributed. Sub-Licensor and License Holder
shall have the right through its representatives to examine and audit, at
reasonable times and intervals during business hours upon reasonable notice, all
such records and such other records and accounts as may under recognized
international accounting practices containing information bearing upon the
amount of the royalty payable by all sub-licensed manufacturers, and to make
proper inspections or investigations in this respect. Sub-Licensee shall retain
such records for a period of four (4) years from the date the record was first
generated.
ARTICLE 10. TERM
10.1 Provided that Sub-Licensee together with other sub-licensed
manufacturers in the Territory, (i) has collectively manufactured and
distributed during the first nine (9) years of the First Contractual Term
110,000 tonnes annually, and has paid aggregately the minimum guaranteed annual
royalties of US$1,780,00, (ii) has paid all royalty payments when due, and
(iii) as of the date that Sub-Licensee provides written notice to Sub-Licensor
of its intent to renew the Sub-License Agreement, Sub-Licensee is not in breach
of any of the provisions of this Sub-License Agreement, this Sub-License
Agreement and the licenses granted hereunder shall be renewed for an additional
term of ten (10) years (the "Second Contractual Term"), unless Sub-Licensee
shall have delivered to Sub-Licensor written notice of intent to terminate not
less than twelve (12) months prior to the expiration of the First Contractual
Term.
10.2 Provided that Sub-Licensee together with other sub-licensed
manufacturers in the Territory, (i) has collectively manufactured and
distributed during the first nine (9) years of the Second Contractual Term
120,000 tonnes annually, and has paid aggregately the minimum guaranteed annual
royalties of US$1,920,000, (ii) has paid all royalty payments when due and
(iii) as of the date that Sub-Licensee provides written notice to Sub-Licensor
of its intent to renew the Sub-License Agreement for another ten (10) year term,
Sub-Licensee is not in breach of any of the provisions of this Sub-License
Agreement, this Sub-License Agreement and the licenses granted hereunder shall
be renewed for an additional term of ten (10) years (the "Third
Exhibit 10.4
Contractual Term") unless Sub-Licensee shall have delivered to Sub-Licensor
written notice of intent to terminate not less than twelve (12) months prior to
the expiration of the Second Contractual Term.
10.3 Sub-Licensee may exercise the rights granted to it under Sections 10.1
and 10.2 above if at the time of the exercise of the rights it has cured all of
the outstanding breaches, if any, under this Sub-License Agreement.
10.4 Notwithstanding the provisions as set forth in Sections 10.1 to 10.3
above, renewal of this Sub-License Agreement will rest with the fact that
Sub-Licensor is successful in renewing its Manufacturing License Agreement with
the License Holder with no material changes to any of the terms and conditions.
ARTICLE 11. TERMINATION
11.1 Sub-Licensor has the right to terminate or elect not to renew this
Sub-License Agreement, but shall not be obligated to terminate this Sub-License
Agreement or elect not to renew this Sub-License Agreement, if Sub-Licensee
together with other authorized manufacturers in the Territory fail to produce
and/or sell collectively the Minimum Guaranteed Annual Tonnage (MGAT), as
specified in Section 8.1 (1) above in any two (2) consecutive years, commencing
with Year 1 of the First Contractual Term. If License Holder elects to
terminate the Manufacturing License Agreement with Sub-Licensor because of the
failure to produce and sell the MGAT, then Sub-Licensor will have no choice but
to terminate this Sub-License Agreement. Sub-Licensor, upon receipt of written
notice from License Holder, shall give the same written notice of termination to
Sub-Licensee, and Sub-Licensee shall pay the MGARP prorated to the date of
notice of termination.
11.2 If either party to this Sub-License Agreement shall fail to fulfill
one or more of its material obligations under this Sub-License Agreement,
including Sub-Licensee's failure to cause all authorized and sub-licensed
manufacturers of Beverage to pay the royalties when due, the other party, if
not itself in default or on notice regarding breach of a material obligation, in
addition to and/or independently of any other remedies that it may have, may at
any time terminate this Sub-License Agreement, by not less than sixty (60) days
written notice ("Cure Notice") in any case specifying the breach, unless within
such sixty (60) day cure period all breaches specified in the notice shall have
been remedied. This Sub-License Agreement shall terminate upon the expiration
of the cure period if the party as to whom the Cure Notice was addressed failed
to cure the defaults specified in the Cure Notice.
11.3 In the event Sub-Licensee is adjudicated a bankrupt, or a receiver of
Sub-Licensee is appointed and qualifies, or Sub-Licensee is admitted to the
benefits of any other court procedure for the settlement of debts, Sub-Licensor
may (in addition to all other rights and remedies it may have) terminate this
Sub-License Agreement and all of its further obligations hereunder, by giving
ten (10) days advance notice in writing to Sub-Licensee or its representative.
11.4 In the event of the direct or indirect acquisition of more than fifty
percent (50%) of the voting rights in Sub-Licensee ("Voting Rights Acquisition")
by any person, company, partnership or entity unaffiliated with Sub-Licensee
without the prior written approval of Sub-Licensor, which approval shall not be
unreasonably withheld or delayed, Sub-Licensor shall have the right to terminate
this Sub-License Agreement by giving (60) days advance notice in writing to
Sub-Licensee. Sub-Licensee shall give written notice to Sub-Licensor of any such
proposed
Exhibit 10.4
Voting Rights Acquisition, providing sufficient details so that Sub-Licensor may
satisfy itself that the rights of Sub-Licensor hereunder, specifically that the
payment of royalties by Sub-Licensee to Sub-Licensor hereunder, will not be
materially jeopardized as a consequence thereof. For the purposes of this
Section 11.4, it shall be reasonable for Sub-Licensor to withhold its approval
to such Voting Rights Acquisition if, and only if, following its review of any
such Voting Rights Acquisition, Sub-Licensor, acting reasonably and in good
faith, reaches a conclusion, as shown by documentation or other evidence
sufficient to establish or support such a conclusion, that the payment of
royalties and distribution of the Beverage, following any such acquisition, will
be materially jeopardized and prevent it from meeting its obligations under this
Sub-License Agreement.
11.5 In the event Sub-Licensee shall collude with another to infringe any
Trademark, or trade dress, licensed herein or shall knowingly derive any
benefit from another's infringement or dilution of any Trademark, or trade dress
licensed herein or from another's act of unfair competition with respect to the
Beverage, Sub-Licensor, in addition to any other legal remedies, shall have the
option to terminate this Sub-License Agreement upon thirty (30) days written
notice.
11.6 Sub-Licensee's breach of any of the provisions of Article 5 of this
Sub-License Agreement shall constitute grounds for termination of the
Sub-License Agreement upon sixty (60) days written notice.
11.7 The early termination of this Sub-License Agreement pursuant to this
Article 11 shall not affect any accrued rights or obligations of the parties
hereto as of the effective date of such termination, nor shall it affect any
rights or obligations of the parties under this Sub-License Agreement which are
intended by the parties and agreed herein by them to survive any such
termination.
11.8 In the event that License Holder terminates the Manufacturing License
Agreement with Sub-Licensor due to any legitimate or other reasons pursuant to
the clause of the said Agreement, Sub-Licensor shall have the same right to
terminate Sub-License Agreement with Sub-Licensee, although Sub-Licensor will do
its utmost to prevent such event from happening. In any case, Sub-Licensee shall
have no right of claim against Sub-Licensor for any possible losses caused by
such termination.
ARTICLE 12. SUB-LICENSOR UNDERTAKINGS
12.1 Sub-Licensor represents and warrants as follows:
(a) Sub-Licensor is the exclusive licensee of the Trademarks, the Trade
Secret, the Know-how, and all rights related to any of them in the Territory;
Sub-Licensor possesses protection of said registered Trademarks, Trade Secret,
Know-how and said Trademarks, Trade Secret and Know-how are valid and
enforceable and in good standing;
(b) Sub-Licensor has the right, power and authority to enter into this
Sub-License Agreement and to grant to Sub-Licensee the licenses and rights
purported to be granted to Sub-Licensee hereunder and Sub-Licensee, except as
otherwise limited hereunder, shall be vested with all right and authority to
enjoy the unfettered use of the Trademarks. Sub-Licensor shall take all
necessary action to preserve and maintain its rights in the Trademarks, the
Trade Secret and the Know-how as granted by the License Holder;
Exhibit 10.4
(c) The Trademarks have been registered by License Holder with the Chinese
Trade-marks Office. Sub-Licensor will refrain from any acts, conduct or
omissions which would jeopardize the maintenance of such registrations in full
force and effect during the term of this Sub-License Agreement or so long as
permitted by applicable law, whichever is shorter;
(d) Sub-Licensor has no present knowledge of any patent, copyright,
trademark, trade secret or license of other property right of any other person
or firm, which would be infringed by the grant of this sub-license.
Sub-Licensor has the representations and warranties given by License Holder that
the Trademarks or any ideas, designs or suggestions given to Sub-Licensor and
hereby sub-license to Sub-Licensee, will not infringe the commercial or
industrial property rights of third parties in the Territory; and
(e) Sub-Licensee shall promptly send written notice to Sub-Licensor of any
trademark infringements which come to its attention. Such notice shall specify
the facts available to Sub-Licensee of the alleged infringement or other unfair
competition and such other evidence as Sub-Licensee is able to supply.
12.2 Subject to Sub-Licensor's prior written notice, Sub-Licensee shall
have the right, in its discretion to commence proceedings or undertake any
action to challenge, oppose and litigate all unauthorized uses or attempted uses
by others, or any uses which constitute passing off or infringement of the
Trademarks or any and all licenses granted hereunder to Sub-Licensee, or to take
such other steps or proceedings as may be considered necessary by it in order to
terminate any such unauthorized, infringing or improper use of the Trademarks by
others. In the event that Sub-Licensee does commence proceedings or undertake
any action to challenge, oppose or litigate, as aforesaid, Sub-Licensor, at no
cost to Sub-Licensor, shall fully cooperate with Sub-Licensee and execute any
and all documents and do such acts and things as in the reasonable opinion of
Sub-Licensee may be necessary. Notwithstanding the foregoing, at the request of
Sub-Licensee, Sub-Licensor shall at Sub-Licensee's expense diligently challenge,
oppose or prosecute any person or firm who unlawfully or improperly makes or
attempts to make such unauthorized use of the Trademarks, in the event
Sub-Licensee's distribution of the Beverage is materially impaired by that
unauthorized use.
ARTICLE 13. CONFIDENTIALITY AND PUBLIC NOTICES
Except as may be required by applicable law (including, without limitation,
applicable securities laws and regulations and the rules and regulations of any
stock exchange or market on which either Sub-Licensor's or Sub-Licensee's
securities are listed directly or indirectly), the parties shall keep the
existence and contents of this Sub-License Agreement strictly confidential. All
public notices to third parties, including the press and employees of
Sub-Licensor and Sub-Licensee, and all other publicity concerning the
transactions contemplated by this Sub-License Agreement shall be jointly
planned, coordinated and agreed upon in advance by Sub-Licensor and
Sub-Licensee.
ARTICLE 14. MISCELLANEOUS
14.1 In the event that any provision, term, condition or object of this
Sub-License Agreement may be in conflict with any law, measure, ruling, court
judgment (by consent or otherwise), or regulation of the government of China or
of any political subdivision thereof, and the legal counsel of either party
shall advise that in their considered opinion such conflict, or a reasonable
possibility of such conflict exists, then either party may propose to the other
Exhibit 10.4
appropriate modifications of the allegedly offending provision, term, condition
or object to avoid such conflict. In such case, if an agreement or modification
is not reached within sixty (60) days, the offending provision, term, condition
or object shall be cancelled, but the remaining part of this Sub-License
Agreement shall be preserved to the fullest possible extent, if this can be done
without frustration of the purpose of this Sub-License Agreement, giving due
consideration to all lawful provisions, terms conditions and objects of this
Sub-License Agreement.
14.2 It is the intent of the parties that the preceding Section 14.1 and
any other part of this Sub-License Agreement shall be governed by the principle
of severability permitting invalidation of any provision, term, clause or
section for illegality without impairment of the lawful remainder of this
Sub-License Agreement which shall remain in full force and effect.
14.3 Nothing in this Sub-License Agreement shall be construed to permit or
entitle Sub-Licensee to use said Trademarks, any trade dress, any get-up or any
notice referring to Sub-Licensor or License Holder, beyond the termination of
this Sub-License Agreement or of the particular Trademark or license.
Sub-Licensee shall cease distribution of the Beverage promptly after such
termination or notice of termination.
14.4 The waiver by either party of any right or the failure by either party
to exercise any power hereunder shall not be deemed as a waiver of any other
right or power of such party hereunder whether of a similar nature or otherwise.
14.5 Sub-Licensor and Sub-Licensee have no intent to establish by this
Sub-License Agreement or otherwise any agency, partnership, joint-ventureship,
or other affiliation. Neither party shall make any representation or engage in
any conduct contrary to this fact.
14.6 This Sub-License Agreement sets forth the entire understanding of the
parties as to the subject matter of this Sub-License Agreement and merges all
prior discussions between them. Neither of the parties shall be bound by any
condition, definition, warranty or representation with respect to the subject
matter of this Sub-License Agreement, other than as expressly provided in this
Sub-License Agreement or as duly set forth subsequent to the date hereof in a
writing signed by a duly authorized representative of the party to be bound
thereby.
14.7 Each party shall on such terms as are compatible with the tenor and
provisions of this Sub-License Agreement be excused for temporary interruptions
in its performance due to strikes, or other labor difficulties, fire, explosion,
similar casualty, riots, civil disturbances, acts of terrorism, or an act of
God, or any other event or occurrence not enumerated herein which is beyond the
control of the party seeking to be excused, provided the excused party shall in
writing notify the other party immediately of the particular interruption and
its cause and shall immediately and continuously exercise best efforts to remedy
the interruption as promptly as possible.
14.8 Unless otherwise provided herein, all notices required hereunder to be
given by either party to the other shall be in writing and shall be given by
telecopier and regular mail, postage prepaid, or overnight delivery addressed to
the party upon which such notice is directed at the addresses set forth below,
or to such changed address as may be specified from time to time in writing by
either party. Notices sent via registered mail shall be deemed received ten
(10) business days after mailing and if via overnight delivery, shall be deemed
received on the second business day after mailing.
Exhibit 10.4
Sub-Licensor: INNO UP LIMITED
Attn: President and CEO
23/F, Hang Seng Causeway Bay Building
00 Xxx Xx Xxxxxx
Xxxxxxxx Xxx, Xxxx Xxxx
Telecopier No.: 000- 0000 0000
Sub-Licensee: Blue Ribbon Beer Marketing Company Limited
Duanzhou Xx Xx
Zhaoqing, Guangdong 526020
People's Republic of China
14.9 Any provision to this Sub-License Agreement to the contrary
notwithstanding, it is expressly acknowledged and agreed by both
Sub-Licensee and Sub-Licensor that this Sub-License Agreement may not be
assigned by Sub-Licensee without the prior written consent of the Sub-Licensor,
which consent shall not be unreasonably withheld. Subject to the foregoing, this
Sub-License Agreement shall be binding upon the parties hereto and their
respective successors and assigns.
14.10 The parties hereto shall execute and deliver such further documents
and assurances and do such further acts and things as may be required to give
full effect to the provisions of this Sub-License Agreement.
14.11 This Sub-License Agreement sets forth the entire agreement between
the parties with respect to the subject matter hereof, and may not be modified
or amended except by written agreement executed by the parties hereto.
14.12 In any interpretation of this Sub-License Agreement, it shall be
deemed that the Sub-License Agreement has been made jointly by the parties, and
no ambiguities shall be construed or resolved against either party on the
premise or presumption that such party was responsible for drafting this
Sub-License Agreement.
14.13 The general representations and warranties made hereto by the parties
shall survive the execution date of this Sub-License Agreement, and the secrecy
provisions shall survive the termination or expiration of this Sub-License
Agreement.
14.14 Sub-Licensee acknowledges and agrees that an infringement or misuse
of the Trademark, Tradename or trade dress in violation of this Sub-License
Agreement would cause irreparable harm to Sub-Licensee that could not be
adequately redressed by payment of monetary damages. Accordingly, Sub-Licensee
hereby agrees that, in the event of such violation, injunctive relief may be
obtained against it in order to accomplish certain affirmative actions or cease
and desist from certain actions.
14.15 All disputes arising in connection with this Sub-License Agreement
shall be finally settled under the Rules of Conciliation and Arbitration of the
International Chamber of Commerce by a single arbitrator. The place of
arbitration shall be Guangzhou, People's Republic of China. The English
language or a Chinese translation can be used for all proceedings and documents
presented during arbitration.
ARTICLE 15. APPLICABLE LAW
Exhibit 10.4
The making, interpretation, construction, performance and enforcement of
this Sub-License Agreement shall be governed by the substantive and procedural
internal law of the People's Republic of China.
ARTICLE 16. MATTERS RELATING TO RIGHTS OF FIRST DISCUSSION
16.1 Right of First Discussion-Expanded Territory. During the term of this
Agreement and any extensions thereof, Sub-Licensor, if granted by the License
Holder to introduce the Beverage in the Expanded Territory, may engage in a
discussion with Sub-Licensee regarding distribution rights for Beverage in
Indonesia, Singapore, Malaysia, North Korea, Thailand, Cambodia, Burma, Taiwan,
Vietnam and the Philippines (the "Expanded Territory") but Sub-Licensor will
participate in such a discussion only if Sub-Licensee is not otherwise in breach
of this Sub-License Agreement at the time such discussions may occur, it being
understood that Sub-Licensor has no obligation to engage in such discussions nor
to grant such Expanded Territory to Sub-Licensee.
16.2 Right of First Discussion-Expanded Beverages. In the event that
Sub-Licensor is granted the distribution and manufacturing rights to the Olympia
label in the Territory, Sub-Licensor and Sub-Licensee may engage in such
discussions if Sub-Licensee is not otherwise in breach of this Sub-License
Agreement at the time such discussions may occur.
16.3 Right of First Discussion-Extended Term. If, not less than 12 months
prior to the expiration of the Third Contractual Term, Sub-Licensee provides
written notice to Sub-Licensor that Sub-Licensee is interested in extending the
term of this Sub-License Agreement and if Sub-Licensor is granted the same
extended term by License Holder, and Sub-Licensee is otherwise in compliance
with the terms of the Sub-License Agreement, then Sub-Licensor and Sub-Licensee
shall engage in discussions to extend this Sub-License Agreement beyond the
Third Contractual Term, it being understood that Sub-Licensor has no obligation
to grant an extension to Sub-Licensee beyond the Third Contractual Term.
ARTICLE 17. CONDITION TO EFFECTIVENESS
This Sub-License Agreement shall not become effective until the
Manufacturing License Agreement signed between Sub-Licensor and License Holder
becomes effective.
IN WITNESS WHEREOF the parties have executed this Sub-License Agreement.
FOR SUB-LICENSOR:
INNO UP LIMITED
By: -------------------------
Xxxxxxx Xxxx XXXXX
Director
FOR SUB-LICENSEE:
BLUE RIBBON BEER MARKETING COMPANY LIMITED
By: -------------------------
Zi-hang NIU
President
Exhibit 10.4
EXHIBIT A
---------
BLUE RIBBON BEER COMMITTEE (THE "COMMITTEE")
1. COMPOSITION
1.1 The Committee shall consist of the following members:
Position Appointed By
-------- ------------
Chairman Sub-Licensor - Inno Up Limited
Vice-Chairman Sub-Licensor - Inno Up Limited
Member Sub-Licensee - Blue Ribbon Beer Marketing Company Ltd
Member Sub-Licensee - Zhaoqing Blue Ribbon Brewery Limited
Member Sub-Licensee - Zhaoqing Blue Ribbon Brewery High Worth Limited
1.2 The composition of Committee shall be adjusted in accordance with the
change in number of Sub-Licensees and as when necessary.
1.3 The Chairman's decision shall be final for any unresolved disputes.
1.4 A Secretary shall be appointed by the Chairman. Committee meetings shall be
held monthly or at any other interval deemed appropriate.
1.5 Proper minutes and records of meetings shall be kept by the Secretary.
2. FUNCTIONS
2.1 The Committee shall discuss and fix the ex-factory and market selling price
of the Beverage. All members shall adhere to the decision made by the
Committee for the purpose of protecting the interests of all parties.
2.2 The Committee shall also regulate the proportion of tonnage of the Beverage
to be produced by breweries of all Sub-Licensees in order to fulfill the
minimum guaranteed annual tonnage; and to coordinate the payment of the
annual royalty to License Holder as well as the fulfillment of the minimum
guaranteed annual royalty payment.
2.3 The Committee is given the authorities to monitor and supervise all
Sub-Licensees to comply with the terms and conditions stipulated in any
Sub-License Agreements and to apply cautiously the Trade Secret and
Know-how governing the production of the Beverage.
2.4 The Committee will also discuss any other matters related to the business
of the Beverage for common interests.
2.5 Members shall pay to Sub-Licensor an initial joining fee of RMB2 million as
a sub-license administrative levy.
2.6 Members shall also contribute an annual fee of HK$500,000 to the Committee
for supporting the ongoing activities of the Committee, including the
annual meeting with License Holder. The annual fee shall be managed by
Sub-Licensor on behalf of the Committee.
3. OTHERS
3.1 When the Minimum Guaranteed Annual Tonnage and Annual Royalty Payment are
not met, the Committee shall decide on the portion of the shortfall to be
borne by each of the Sub-Licensees.
