AMENDED AND RESTATED MANUFACTURING AND LICENSING AGREEMENT
EXHIBIT 10.48
AMENDED AND RESTATED MANUFACTURING AND LICENSING AGREEMENT
By:
|
▇▇▇▇▇▇ Brothers Brewing Company, an Oregon corporation (“▇▇▇▇▇▇”) | |
| ▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ | ||
and:
|
Redhook Ale Brewery Incorporated, a Washington corporation (“Redhook”) | |
| ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
Date:
|
February 27, 2008 |
This Amended and Restated Manufacturing and Licensing Agreement (the “Agreement”) is entered into
by and between ▇▇▇▇▇▇ and Redhook as of the date first set forth above.
BACKGROUND
A. This Agreement amends and restates in its entirety that certain Manufacturing
and Licensing Agreement dated August 28, 2006, as amended by Amendment No. 1 thereto, dated
December 31, 2006 and Amendment No. 2 thereto dated December 31, 2007. The parties desire to enter
into this Agreement so that all the terms of their agreement with respect to the subject matter
described herein are contained in one document.
▇. ▇▇▇▇▇▇ is in the business of manufacturing, advertising, marketing, selling, and
distributing ▇▇▇▇▇▇ brand products set forth in Exhibit A (“▇▇▇▇▇▇ Products”).
C. Redhook has a manufacturing facility in Woodinville, Washington (the “Redhook Facility”)
and is in the business of manufacturing, bottling, and packaging beer products at the Redhook
Facility.
▇. ▇▇▇▇▇▇ and Redhook desire for Redhook to manufacture, bottle, and package certain ▇▇▇▇▇▇
Products at the Redhook Facility.
E. In order for Redhook to manufacture, bottle, and package ▇▇▇▇▇▇ Products at the Redhook
Facility, Redhook must amend its federal brewers notice with the Alcohol and Tobacco Tax and Trade
Bureau of the Department of the Treasury (the “TTB”) and register in the state of Washington as a
tradename ▇▇▇▇▇▇’▇ tradename: ▇▇▇▇▇▇ BROTHERS BREWING COMPANY.
F. This Agreement is not intended to modify the rights and obligations of the parties under
that certain Licensing Agreement between Redhook and ▇▇▇▇▇▇ dated February 1, 2003, or the Supply,
Distribution and Licensing Agreement between Redhook and Craft Brands Alliance, LLC dated July 1,
2004 (the “CBA Agreement”).
AGREEMENT
Based on the mutual promises set forth below and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, ▇▇▇▇▇▇ and Redhook
hereby agree as follows:
1. Right to Manufacture.
1.1 Subject to the terms and conditions of this Agreement, ▇▇▇▇▇▇ hereby grants Redhook the
right to manufacture, bottle, and package ▇▇▇▇▇▇ Products at the Redhook Facility. Redhook agrees
to manufacture, bottle, and package ▇▇▇▇▇▇ Products of the brands identified on Exhibit A and in
the volumes requested by ▇▇▇▇▇▇. Except as set forth herein, Redhook’s right to manufacture ▇▇▇▇▇▇
Products does not limit or extinguish ▇▇▇▇▇▇’▇ right to manufacture any and all ▇▇▇▇▇▇ Products,
either now existing or produced in the future.
1.2 ▇▇▇▇▇▇ shall reimburse Redhook for all capital expenditures necessary for Redhook to
manufacture, bottle, and package ▇▇▇▇▇▇ Products at the Redhook Facility, but only to the extent
the types and amounts of such capital expenditures are previously approved by ▇▇▇▇▇▇ in writing.
1.3 ▇▇▇▇▇▇ may add to now existing ▇▇▇▇▇▇ Products and may request Redhook to manufacture such
products at the Redhook Facility. If ▇▇▇▇▇▇ elects to add a new ▇▇▇▇▇▇ Product, ▇▇▇▇▇▇ shall at its
expense develop all Intellectual Property related to such ▇▇▇▇▇▇ Product. All such Intellectual
Property shall be the property of ▇▇▇▇▇▇ pursuant to Section 4.2 of this Agreement and licensed to
Redhook under the terms of this Agreement.
1.4 At least thirty (30) days prior to the beginning of each calendar quarter, ▇▇▇▇▇▇ will
provide Redhook with a three-month rolling forecast (each, a “Three-Month Forecast”) of the
quantity and type of each ▇▇▇▇▇▇ Product ▇▇▇▇▇▇ expects to purchase during such three-month period
(each a “3-Month Forecasted Quantity”). Within ten (10) days following Redhook’s receipt of each
Three-Month Forecast, Redhook will notify ▇▇▇▇▇▇ (i) if it is unwilling or unable to manufacture at
least 110% of the 3-Month Forecasted Quantity (the “Required Redhook Quantity”) and (ii) the
quantity of ▇▇▇▇▇▇ Products it is willing and able to manufacture (the “Promised Redhook Quantity”)
if such quantity is less than the Required ▇▇▇▇▇▇ Quantity. If Redhook does not so notify ▇▇▇▇▇▇,
it will be presumed that Redhook is willing and able to manufacture at least the Required Redhook
Quantity.
1.5 ▇▇▇▇▇▇ may, from time to time require changes to Intellectual Property, packaging, or any
other change in connection with ▇▇▇▇▇▇ Products upon 180 days’ prior written notice to Redhook. The
direct out-of-pocket costs for all such changes will be paid by ▇▇▇▇▇▇. If ▇▇▇▇▇▇ requires any
change to the Intellectual Property or packaging that requires capital expenditures by Redhook,
▇▇▇▇▇▇ shall reimburse Redhook for such expenditures.
1.6 If ▇▇▇▇▇▇ requires any change to ▇▇▇▇▇▇ Products that increases Redhook’s variable cost to
manufacture, bottle, or package ▇▇▇▇▇▇ Products, the price for such ▇▇▇▇▇▇ Products shall be
increased by such estimated additional incremental cost if (a) within thirty (30) days following
the date ▇▇▇▇▇▇ requests such change Redhook notifies ▇▇▇▇▇▇ of the
increased incremental cost, providing reasonable supporting documentation, and (b) ▇▇▇▇▇▇
thereafter elects for Redhook to manufacture such ▇▇▇▇▇▇ Products. ▇▇▇▇▇▇ may, upon notice to
Redhook, audit Redhook’s books and records to the extent necessary to confirm such increased
variable costs.
1.7 The price for the ▇▇▇▇▇▇ products shall be as set forth on Exhibit B, attached hereto.
Prices will be F.O.B. Redhook Facility. ▇▇▇▇▇▇ shall pay for all ▇▇▇▇▇▇ Products ordered hereunder
within 30 days following ▇▇▇▇▇▇’▇ receipt of Redhook’s invoice describing the ▇▇▇▇▇▇ Products
delivered.
1.8 This Agreement does not amend or modify the CBA Agreement, including, without limitation,
Redhook’s option to manufacture ▇▇▇▇▇▇ Products pursuant to Section 4.2.2 of the CBA Agreement. Any
▇▇▇▇▇▇ Products manufactured by Redhook pursuant to its option under Section 4.2.2 of the CBA
Agreement shall continue to be governed by the terms of the CBA Agreement.
2. Grant of License. Upon the terms and conditions hereinafter set forth, ▇▇▇▇▇▇ hereby
grants to Redhook, and Redhook hereby accepts a non-exclusive, non-transferable license to use the
intellectual property set forth on Exhibit C, in addition to any other trade secret, trademark,
tradedress, copyright, patent, or other distinctive feature in or related to ▇▇▇▇▇▇ Products
(collectively, the “Intellectual Property”), solely for the purposes of manufacturing, bottling,
and packaging ▇▇▇▇▇▇ Products at the Redhook Facility. Redhook shall not use Intellectual Property
in connection with any other purpose other than those listed without ▇▇▇▇▇▇’▇ prior written
consent. Without limiting the foregoing, ▇▇▇▇▇▇ grants Redhook a license to place the phrase
“▇▇▇▇▇▇ Brothers Brewing Company — Portland, OR — Woodinville, WA” on the label of ▇▇▇▇▇▇ Products.
3. Quality Control.
3.1 The objective of Section 3 is to ensure Redhook recognizes and maintains the value of the
goodwill associated with the Intellectual Property licensed and agrees that any use of Intellectual
Property shall inure to the benefit of ▇▇▇▇▇▇.
3.2 Each of the ▇▇▇▇▇▇ Products manufactured by Redhook will conform to the specification,
recipe, and quality control requirements attached on Schedule 3.2. For any new ▇▇▇▇▇▇ Product,
Redhook shall conform to the specification, recipe, and quality control requirements as reasonably
determined and provided to Redhook by ▇▇▇▇▇▇.
3.3 ▇▇▇▇▇▇ Products manufactured, bottled, and packaged by Redhook at the Redhook Facility
shall not be adulterated, contaminated, or otherwise of a quality that is below average quality of
▇▇▇▇▇▇ Products manufactured, bottled, and packaged by ▇▇▇▇▇▇ in its Portland, Oregon facility,
which may include, without limitation, (i) apparent defects in taste or appearance in excess of
typical age-related changes; (ii) microbiological contamination or other contamination such as
carryover of cleaning chemicals or foreign object inclusions; and (iii) defective bottling or
packaging.
3.4 Information regarding the process conditions, quality control procedures, equipment and
materials required to manufacture, bottle, or package ▇▇▇▇▇▇ Products will be
provided by ▇▇▇▇▇▇ to Redhook (the “Formula”). Redhook understands and agrees that changes
in the Formula may be required by ▇▇▇▇▇▇ from time to time. Redhook shall use all necessary ability,
know-how, methods, and means to brew, handle, package, and store ▇▇▇▇▇▇ Products strictly in
accordance with the Formula. No change in the Formula shall be made by Redhook without ▇▇▇▇▇▇’▇
prior written consent.
3.5 ▇▇▇▇▇▇ shall have the right to inspect and approve the Redhook Facility and equipment used
by Redhook to brew, handle, package, and store ▇▇▇▇▇▇ Products, as well as any ingredients,
processing aids, and containers used in brewing or packaging ▇▇▇▇▇▇ Products; and to taste samples
of ▇▇▇▇▇▇ Products at the Redhook Facility. At ▇▇▇▇▇▇’▇ request, Redhook shall provide to ▇▇▇▇▇▇ at
the address set forth above, at Redhook’s cost, samples of (a) ▇▇▇▇▇▇ Products manufactured or
packaged by Redhook and (b) brewing and packaging materials. Redhook shall bear the cost of
shipment for said samples. If at any point during the term of this Agreement, ▇▇▇▇▇▇ determines
quality of ▇▇▇▇▇▇ Products manufactured, bottled, or packaged at the Redhook Facility is below
average quality of ▇▇▇▇▇▇ Products manufactured, bottled, or packaged by ▇▇▇▇▇▇ in its Portland,
Oregon facility, ▇▇▇▇▇▇ may terminate this Agreement upon 30 days written notice to Redhook,
provided that, during the 30-day period, Redhook fails to cure such deficiency.
4. Rights in Intellectual Property.
4.1 Intellectual Property. Redhook acknowledges that its use of the Intellectual
Property shall not create any right, title, or interest in or to the Intellectual Property of
▇▇▇▇▇▇. Redhook may, however, sublicense others the right to use the Intellectual Property solely
for the purpose of fulfilling Redhook’s obligations under this Agreement. Redhook shall not apply
at any time anywhere in the world for any trademark or other intellectual property protection in
its name, other than expressly provided herein, without ▇▇▇▇▇▇’▇ prior written consent.
4.2 Improvements; Ownership. Improvements and modifications to the Intellectual
Property created by either party during the term of this Agreement shall, from the time of
conception or development, be the property of ▇▇▇▇▇▇. Improvements and modifications to the Redhook
Facility (to the extent they do not include Intellectual Property) for the purpose of
manufacturing, bottling, and packaging ▇▇▇▇▇▇ Products shall remain the property of Redhook.
4.3 Representations and Warranties. ▇▇▇▇▇▇ represents and warrants that (a) it has the
right to license the Intellectual Property to Redhook as provided under this Agreement; (b) the
license of the Intellectual Property and distribution rights under this Agreement do not conflict
with any agreement, judgment, or other obligation of ▇▇▇▇▇▇; and (c) Redhook’s use of the
Intellectual Property hereunder will not violate the rights of any third person. ▇▇▇▇▇▇ shall
indemnify and hold Redhook and its affiliates, successors, and assigns harmless from and against
any and all charges, actions, and proceedings (including investigations) resulting from ▇▇▇▇▇▇’▇
breach of such representations and warranties.
4.4 Notices. Redhook agrees that ▇▇▇▇▇▇ Products and Intellectual Property shall bear
appropriate proprietary legends or notices as specified by ▇▇▇▇▇▇ from time to time.
5. Infringement.
5.1 Infringement By Third Parties. Redhook shall notify ▇▇▇▇▇▇ promptly in writing of
any suspected infringement or unauthorized use of the Intellectual Property by third parties that
may come to its attention. If ▇▇▇▇▇▇ shall elect, in its sole discretion to enjoin or prevent such
infringement or unauthorized use, Redhook shall cooperate with ▇▇▇▇▇▇, provided ▇▇▇▇▇▇ shall pay
any out-of-pocket expenses incurred by Redhook in connection therewith. If ▇▇▇▇▇▇ at its own
expense files and is successful in infringement litigation or settlement, then ▇▇▇▇▇▇ shall be
entitled exclusively to any amounts recovered.
5.2 Infringement By Redhook. Redhook shall notify ▇▇▇▇▇▇ promptly in writing of any
and all allegations or claims by others which may come to its attention that the use of the
Intellectual Property infringes or violates a patent, copyright, trademark, or trade secret, or
other proprietary right of any third party, or violates or is contrary to any applicable law,
regulation, order, consent, or the like. ▇▇▇▇▇▇ may, but is not obligated to, procure for Redhook
the right to continue to use the matter which is the subject of the claim, or to modify the same so
that it becomes non-infringing. If ▇▇▇▇▇▇ shall elect, in its sole discretion, to undertake and
conduct the defense of any suit, action, or proceeding arising out of the use by Redhook of the
Intellectual Property, Redhook shall cooperate in such defense provided ▇▇▇▇▇▇ shall pay any
out-of-pocket expenses incurred by Redhook in connection therewith. No settlement of any such claim
or suit shall be made without the prior written consent of ▇▇▇▇▇▇.
6. Compliance with Law.
6.1 Operations. Both ▇▇▇▇▇▇ and Redhook shall comply with all applicable rules and
regulations of the TTB, and any other regulatory agency that has jurisdiction over ▇▇▇▇▇▇ Products
or the Redhook Facility. The parties shall cooperate with each other to provide and retain any
regulatory, taxation, or other reports or information required by TTB, or any other regulatory
agency.
6.2 Facility. Redhook represents and warrants that the Redhook Facility and
manufacturing practices comply with, and will continue to comply with all applicable laws,
ordinances, regulations, and health and safety standards of all applicable regulatory bodies.
▇▇▇▇▇▇ represents and warrants that any processing instructions, product formula, and packaging
instructions furnished by it will comply with applicable federal, state, and local laws,
ordinances, regulations, and health and safety standards.
7. Confidentiality.
7.1 Access to Information. Each party acknowledges that during the term of this
Agreement it may have access to nonpublic information about the existing or proposed business or
products (“Confidential Information”) of the other party (the “Disclosing Party”) . Confidential
Information includes, without limitation, (i) information marked or otherwise designated by the
Disclosing Party as confidential, (ii) information that the Disclosing Party does not designate as
public information, and (iii) information provided to the Disclosing Party by third parties that it
is obligated to keep confidential. Confidential Information may be written, oral, embodied in
products (including ▇▇▇▇▇▇ Products), or in other forms. Confidential
Information does not include information that is or becomes publicly known, other than as a
result of each party’s actions or failure to prevent disclosure. The fact that portions of
Confidential Information may be publicly available shall not affect each party’s obligations with
respect to the remaining portion or with respect to the particular formulation or compilation
disclosed by the Disclosing Party.
7.2 Non-Disclosure and Non-Use. Neither party shall disclose to others or use any
Confidential Information of the Disclosing Party, except as required to perform its obligations
under this Agreement. Either party may, however, disclose Confidential Information to its employees
and agents who need to know the information in connection with this Agreement, who are made aware
of its confidential nature, and who are obligated to comply with the restrictions imposed by this
Section 7. A default by a Recipient’s employee or independent contractor of the provisions set
forth under this Agreement will be a default of the Recipient. Each such employee of Redhook given
access to ▇▇▇▇▇▇’▇ confidential information shall execute and deliver to ▇▇▇▇▇▇ a form of the
confidentiality and non-disclosure agreement attached hereto as Exhibit D.
7.3 Return. Except as set forth below, upon the expiration or termination of this
Agreement, the parties shall promptly destroy or return to the Disclosing Party, as the Disclosing
Party may direct, all tangible materials provided to it by the Disclosing Party that embody
Confidential Information and shall erase or delete all such Confidential Information embodied in
any magnetic, optical, or similar medium or stored or maintained on any information storage and/or
retrieval device. Each party may retain one copy of Confidential Information for archival and
regulatory purposes.
7.4 Remedies. In the event of a default under this Section, the Disclosing Party shall
be entitled to a temporary restraining order, preliminary injunction, and other injunctive relief,
in addition to other available remedies, including damages.
7.5 Duration. The obligations set forth in this Section shall continue in effect
beyond the term of this Agreement and for so long as each party possesses Confidential Information.
8. Indemnification. Each party (the “Indemnifying Party”) shall indemnify and hold the
other party, its affiliates and its successors and assigns (as to each, an “Indemnified Party”)
harmless from and against any and all charges, actions, and proceedings (including investigations)
arising out of negligence, willful misconduct, or breach of this Agreement by the Indemnifying
Party, including (without limitation) product liability claims against the Indemnified Party,
including all reasonable expenses (including attorney fees) incurred by such Indemnified Party as a
result thereof.
9. Insurance. Each party shall keep in force at all times while any ▇▇▇▇▇▇ Product is being
manufactured by Redhook at the Redhook Facility, general liability insurance with both “products”
and “contractual” coverage for aggregated claim in the minimum amount of $5,000,000, and to furnish
the other a certificate from a financially responsible insurance company evidencing that such
insurance is in force, naming the other party as an additional insured, and providing that such
coverage may not be cancelled or materially changed without
thirty (30) days prior written notice to the other party. Any such policy of insurance shall
contain a waiver of subrogation.
10. Warranties.
10.1 Warranty of Authority. Each of the parties hereto warrants and represents to the
other party that (a) it has the full right, power and authority to enter into this Agreement and to
carry out its obligations hereunder and (b) that it has no obligations to any other party that is
inconsistent with its obligations under this Agreement.
10.2 DISCLAIMER OF WARRANTY. EXCEPT AS PROVIDED IN SECTIONS, 4.3, 6.1, 6.2 AND 10.1 ABOVE:
(A) NO PARTY MAKES ANY WARRANTIES OR REPRESENTATIONS WHATSOEVER, WHETHER EXPRESS OR IMPLIED,
HEREUNDER AND, WITHOUT LIMITATION, NO PARTY MAKES ANY WARRANTY OF TITLE, FITNESS FOR A PARTICULAR
PURPOSE, OR MERCHANTABILITY; AND (B) NO PARTY MAKES ANY REPRESENTATION OR WARRANTY THAT THE
MANUFACTURE OR SALE OF ▇▇▇▇▇▇ PRODUCTS HEREUNDER BY ANY PERSON OR ENTITY WILL NOT CONSTITUTE AN
INFRINGEMENT OF THE PATENT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHTS OF OTHERS. IN NO EVENT
SHALL ANY PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOST REVENUES OR
PROFITS.
11. Termination.
11.1 Term. The term of this Agreement shall commence on the date first set forth above
and continue until December 31, 2008 unless earlier terminated as set forth herein or unless
renewed in writing on terms and conditions acceptable to both parties.
11.2 Termination for Cause. Either party may terminate this Agreement upon written
notice given to the other party following the occurrence of any of the following events:
11.2.1 The other party fails to timely make any payment required under this Agreement
for a period of 30 days following written notice thereof by the nonbreaching party.
11.2.2 The other party fails to perform any other obligation under this Agreement and
such failure remains uncured for a period of 30 days following written notice thereof by the
nonbreaching party.
11.2.3 The other party is given notice of a breach more than two times during the term
of this Agreement (regardless of whether such breach is cured).
11.2.4 The other party becomes the subject of insolvency or bankruptcy proceedings,
ceases doing business, makes an assignment of assets for the benefit of creditors,
dissolves, or has a trustee appointed for all or a substantial portion of such party’s
assets.
11.2.5 Any government authority invalidates any substantial portion of this Agreement.
11.2.6 Either party finds that complying with any law or regulation relating to
production of ▇▇▇▇▇▇ Products would be commercially unreasonable and failure to comply with
the law or regulation would subject such party or any of its personnel to a
monetary or
criminal penalty.
11.2.7 An event of termination occurs as expressly provided elsewhere in this
Agreement.
11.3 Repurchase upon Termination. Upon termination of this Agreement for any reason,
▇▇▇▇▇▇ shall purchase from Redhook all Redhook inventory of ▇▇▇▇▇▇ Product, including any ▇▇▇▇▇▇
Product in process at the time of termination, at the prices set forth on Exhibit B; provided that
all such ▇▇▇▇▇▇ Product must be timely delivered and be manufactured in compliance with the terms
of this Agreement. If ▇▇▇▇▇▇ terminates this Agreement without cause or Redhook terminates this
Agreement for cause as defined in Section 11.2, ▇▇▇▇▇▇ shall also purchase from Redhook at
Redhook’s direct out of pocket costs, the raw materials inventory that is intended to be used by
Redhook to manufacture, bottle, or package ▇▇▇▇▇▇ Products and is purchased by Redhook prior to the
date the notice of termination was delivered; provided that the quantity of raw materials is
reasonable and shall not exceed the amount reasonably necessary to manufacture the quantity of
▇▇▇▇▇▇ Products reasonably expected to be manufactured by Redhook over the 180 day period
immediately following such termination. If this Agreement expires or is terminated for any other
reason, no such raw material purchase obligation shall exist.
11.4 License Termination. Upon expiration or any termination, (a) all rights granted
to Redhook with respect to Intellectual Property, as appropriate, shall revert to ▇▇▇▇▇▇;
thereafter, (b) Redhook shall (i) refrain from all further use of Intellectual Property and
(ii) take any and all action that ▇▇▇▇▇▇ may request to confirm termination of its license to use
Intellectual Property; and (c) Redhook shall (at ▇▇▇▇▇▇’▇ direction) either destroy or return to
▇▇▇▇▇▇ all copies of labels, packaging, or other materials on which Intellectual Property may be
used or affixed. The foregoing shall not prevent Redhook from filling orders of ▇▇▇▇▇▇ Product
received prior to the effective date of such expiration or termination.
11.5 Survival of Rights and Obligations. Termination of this Agreement shall not
prejudice any rights of either party hereto against the other which may have accrued up to the date
of termination. In addition, all covenants respecting indemnification, governing law, attorneys
fees, arbitration, confidentiality, warranties, termination, and continuing liability for amounts
payable hereunder shall survive the termination of this Agreement as expressly set forth elsewhere
herein.
12. Notices. Any notice, request or demand to be given or made under this Agreement shall
be in writing and shall be deemed to have been duly given or made (i) upon delivery, if delivered
by hand and addressed to the party for whom intended at the address listed below, (ii) ten
(10) days after deposit in the mails, if sent certified or registered air mail (if available) with
return receipt requested, or five (5) days after deposit if deposited for delivery with a reputable
courier service, and in each case addressed to the party for whom intended at the address listed
below or (iii) upon completion of transmission, if sent by facsimile transmission to the party for
whom intended at the fax number listed below, provided that a copy of the facsimile transmission is
promptly deposited for delivery by one of the methods listed in (i) or (ii) above:
If to ▇▇▇▇▇▇, to:
▇▇▇▇▇▇ Brothers Brewing Company
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to Redhook, to:
Redhook Ale Brewery Incorporated
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Any party may change its address and/or fax number for the purposes of this Section 12 by written
notice hereunder given to the other parties at least ten (10) days prior to the effective date of
such change.
13. Miscellaneous.
13.1 Relationship. This Agreement does not make either party the employee, agent, or
legal representative of the other party for any purpose whatsoever. Neither party is granted any
right or authority to assume or to create any obligation or responsibility, express or implied, on
behalf of or in the name of the other party. In fulfilling its obligations pursuant to this
Agreement each party shall be acting as an independent contractor.
13.2 Assignment. Except as set forth herein, neither party shall have the right to
assign, sublicense, subcontract, or otherwise transfer its rights and obligations under this
Agreement except with the prior written consent of the other party. The terms of this Agreement
shall be binding upon and inure to the benefit of the parties, their respective successors,
permitted assignees, sublicensees, and subcontractors.
13.3 Entire Agreement. THIS AGREEMENT, INCLUDING ALL ATTACHMENTS HERETO, CONSTITUTES
THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND SUPERSEDES ALL
PREVIOUS AGREEMENTS BY AND BETWEEN THE PARTIES AS WELL AS ALL PROPOSALS, ORAL OR WRITTEN, AND ALL
NEGOTIATIONS, CONVERSATIONS, OR DISCUSSIONS HERETOFORE HAD BETWEEN THE PARTIES RELATED TO THIS
AGREEMENT.
13.4 Amendment. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled, or waived, in whole or in part, except by written amendment signed by
the parties hereto.
13.5 Severability. In the event that any of the terms of this Agreement are in
conflict with any rule of law or statutory provision or are otherwise unenforceable under the laws
or regulations of any government or subdivision thereof, such terms shall be deemed stricken from
this Agreement, but such invalidity or unenforceability shall not invalidate any of the other terms
of this Agreement and this Agreement shall continue in force, unless the invalidity or
unenforceability of any such provisions hereof does substantial harm to, or where the invalid or
unenforceable provisions comprise an integral part of, or are otherwise inseparable from, the
remainder of this Agreement.
13.6 Counterparts. This Agreement may be executed in two or more counterparts, and
each such counterpart shall be deemed an original hereof.
13.7 Headings. Headings and subheadings in this Agreement are not intended to and do
not have any substantive content whatsoever.
13.8 Mutual Negotiation in Drafting. The parties acknowledge each party and its
counsel have materially participated in the drafting of this Agreement. Consequently, the rule of
contract interpretation, that ambiguities, if any, in a writing be construed against the drafter,
shall not apply.
13.9 Waiver. No failure by either party to take any action or assert any right
hereunder shall be deemed to be a waiver of such right in the event of the continuation or
repetition of the circumstances giving rise to such right.
13.10 Attorney Fees. In the event of a default under this Agreement, the defaulting
party shall reimburse the non-defaulting party for all costs and expenses reasonably incurred by
the non-defaulting party in connection with the default, including, without limitation, attorney
fees and costs (however incurred, including at trial, on appeal, and on any petition for review).
An event of “default” is a breach by either party of this Agreement that is not cured within an
applicable cure period. Additionally, in the event any suit or action is brought to enforce or
interpret any of the terms of this Agreement, the prevailing party shall be entitled to recover
from the other party all reasonable attorney fees and costs (however incurred, including at trial,
on appeal, and on any petition for review), together with such other expenses, costs, and
disbursements as may be allowed by law.
13.11 Force Majeure. Neither party shall be liable for any delay or default in
performing its obligations if such default or delay is caused by any event beyond the reasonable
control of such party, including, but not limited to, acts of nature, terrorism, war, or
insurrection, civil commotion, damage or destruction of production facilities or materials by
earthquake, fire, storm, or flood, labor disturbances or strikes, epidemic, materials shortages,
equipment malfunction, unavailability of raw materials, or other similar event. The party suffering
such cause shall immediately notify the other party of the cause and the expected duration of such
cause. If either party’s performance is delayed by more than 60 days pursuant to this Section, the
other party may immediately terminate this Agreement by written notice given before the
affected party resumes performance.
13.12 Governing Law. This Agreement shall be governed by the laws of the State of
Oregon, without regards to the principles of conflicts of laws thereof. Any controversy or claim
arising out of or relating to this Agreement, or the breach thereof, shall be settled by
arbitration in Portland, Oregon in accordance with the rules of the Arbitration Service of
Portland, Inc. and judgment on the award rendered by the arbitrator(s) may be entered in any court
having jurisdiction thereof.
13.13 Commencement of Agreement. Neither party shall have any rights or obligations
under this Agreement and none of its provisions shall be operative unless and until all of the
following have occurred:
13.13.1 Craft Brands Alliance LLC consents to the terms and executes this Agreement
acknowledging such consent.
13.13.2 Redhook obtains all regulatory licenses and approvals necessary to
manufacture, bottle, and package ▇▇▇▇▇▇ Products at the Redhook Facility. ▇▇▇▇▇▇ agrees to
cooperate with Redhook in connection with Redhook’s efforts to obtain such licenses and
approvals.
The parties have executed this Agreement as of the date first set forth above.
| ▇▇▇▇▇▇ BROTHERS BREWING COMPANY | ||||
By: |
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
Name:
|
||||
Title:
|
Vice President of Brewing Operations | |||
| REDHOOK ALE BREWERY INCORPORATED | ||||
By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
Name:
|
||||
Title:
|
President and Chief Operating Officer | |||
Craft Brands Alliance LLC hereby consents to the terms and conditions set forth in this Agreement.
| CRAFT BRANDS ALLIANCE LLC | ||||
By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |||
Name:
|
||||
Title:
|
President | |||