Exhibit 10.2
XXXXXX BREWING COMPANY
DISTRIBUTOR AGREEMENT
INDEX
Page
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Section 1 Distributor's Area and Xxxxxx Products . . . . . . . . . . . . . . . .1
1.1 Exclusive Territory . . . . . . . . . . . . . . . . . . . . . .1
1.2 Non-exclusive Territory . . . . . . . . . . . . . . . . . . . .1
1.3 Permitted Xxxxxx Sales. . . . . . . . . . . . . . . . . . . . .1
1.4 Lack of Service within Territory. . . . . . . . . . . . . . . .2
1.5 New Brands. . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.6 Reservations of Rights. . . . . . . . . . . . . . . . . . . . .2
Section 2 Sales of Product . . . . . . . . . . . . . . . . . . . . . . . . . . .2
2.1 Sale Terms. . . . . . . . . . . . . . . . . . . . . . . . . . .2
2.2 Payment Terms . . . . . . . . . . . . . . . . . . . . . . . . .2
2.3 Orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
2.4 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Section 3 Distributor's Responsibilities . . . . . . . . . . . . . . . . . . . .3
3.1 Proper Licensing. . . . . . . . . . . . . . . . . . . . . . . .3
3.2 Performance Standards . . . . . . . . . . . . . . . . . . . . .3
3.3 Hours of Operation. . . . . . . . . . . . . . . . . . . . . . .4
3.4 Submissions to Xxxxxx . . . . . . . . . . . . . . . . . . . . .4
3.5 Xxxxxx Property, Proprietary Materials and Information. . . . .4
3.6 Employees . . . . . . . . . . . . . . . . . . . . . . . . . . .4
3.7 Other or Additional Requirements. . . . . . . . . . . . . . . .4
Section 4 Distributor Management . . . . . . . . . . . . . . . . . . . . . . . .4
4.1 Manager Designation . . . . . . . . . . . . . . . . . . . . . .4
4.2 Manager Responsibilities. . . . . . . . . . . . . . . . . . . .5
4.3 Manager Vacancy . . . . . . . . . . . . . . . . . . . . . . . .5
4.4 Succession Planning . . . . . . . . . . . . . . . . . . . . . .5
Section 5 Distributor Ownership and Transfers. . . . . . . . . . . . . . . . . .5
5.1 Transfer Upon Owner's Death . . . . . . . . . . . . . . . . . .5
5.2 Transfer of Distributor's Business. . . . . . . . . . . . . . .6
5.3 Change in Control . . . . . . . . . . . . . . . . . . . . . . .7
5.4 Approval Criteria . . . . . . . . . . . . . . . . . . . . . . .7
5.5 No Public Ownership . . . . . . . . . . . . . . . . . . . . . .8
5.6 Providing Agreement Copy. . . . . . . . . . . . . . . . . . . .8
5.7 Change in Distributor's Business. . . . . . . . . . . . . . . .8
Section 6 Distributor's Right to Terminate . . . . . . . . . . . . . . . . . . .8
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Section 7 Xxxxxx'x Right to Terminate. . . . . . . . . . . . . . . . . . . . . .8
7.1 Termination With Cure . . . . . . . . . . . . . . . . . . . . .8
7.2 Termination Without Cure. . . . . . . . . . . . . . . . . . . .9
7.3 Contemporaneous Termination . . . . . . . . . . . . . . . . . .9
Section 8 Post Termination Provisions. . . . . . . . . . . . . . . . . . . . . 10
8.1 Order Cancellation. . . . . . . . . . . . . . . . . . . . . . 10
8.2 Property Return . . . . . . . . . . . . . . . . . . . . . . . 10
8.3 Repurchase Following Termination. . . . . . . . . . . . . . . 10
Section 9 Xxxxxx Trade Designations. . . . . . . . . . . . . . . . . . . . . . 10
Section 10 Distributor's Representations. . . . . . . . . . . . . . . . . . . . 11
Section 11 Agreement Amendments . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 12 Compliance with Law. . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 13 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 14 Assignments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 15 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 16 Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . 12
Section 17 Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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XXXXXX BREWING COMPANY
DISTRIBUTOR AGREEMENT
Xxxxxx Brewing Company ("Xxxxxx") and the undersigned Distributor recognize
that the success of Xxxxxx and each of its authorized distributors depends
largely on the reputation and competitiveness of Xxxxxx products and
distributors' performance, and on how well each fulfills its responsibilities
to one another and our customers. Therefore, this Agreement imposes on both
Xxxxxx and Distributor an obligation of good faith in its performance or
enforcement. Conformance with the express terms of this Agreement shall be
deemed to constitute compliance with such good faith obligation.
Xxxxxx agrees to sell and the Distributor agrees to buy and market those
products listed on the Distributor Data Sheet attached hereto, pursuant to the
following terms and conditions:
XXXXXXX 0 XXXXXXXXXXX'X XXXX AND XXXXXX PRODUCTS.
1.1 EXCLUSIVE TERRITORY. The following provisions shall be
applicable during all such times as permitted by applicable state or federal law
or regulation:
Xxxxxx hereby appoints Distributor as its sole
distributor within the geographic area described in the Distributor Data
Sheet ("Distributor's Area") for the products listed in the Distributor Data
Sheet ("Xxxxxx products"). Except upon the receipt of Xxxxxx'x prior written
approval and compliance with such conditions Xxxxxx may require: Distributor
shall not sell or supply Xxxxxx products to any retail location within
another authorized Xxxxxx distributor's area; nor to any person Distributor
has reason to believe will sell or supply all or part of such products to any
retail location within another authorized Xxxxxx distributor's area; nor to
any retail location that sells, delivers or transfers such products to other
retail locations; nor to any person or entity who is engaged in the sale of
the Xxxxxx products for consumption outside of Distributor's Area; nor to any
retail location during such period when retailer's license to do business or
sell such products has been suspended by a governmental entity. Nothing in
this Section shall prevent Distributor from selling or supplying Xxxxxx
products to another authorized Xxxxxx distributor for the purpose of
eliminating product shortages or inventory imbalances. If Distributor fails
to comply with the provisions of this Section 1.1, Xxxxxx shall have the
right to terminate this Agreement in accordance with the procedures described
in Section 7.2.
1.2 NON-EXCLUSIVE TERRITORY. The following provisions, rather
than the provisions of Section 1.1 above, shall apply whenever any of the
provisions of Section 1.1 above are expressly prohibited by any final court
order or precluded by any applicable statute or regulation:
Xxxxxx hereby appoints Distributor as a distributor
within the geographic area described in the Distributor Data Sheet
("Distributor's Area") for the products listed in the Distributor Data Sheet
("Xxxxxx products"). Distributor's primary responsibility shall be to comply
with the Distributor obligations in accordance with this Agreement with
respect to retail locations in Distributor's Area. If Distributor sells or
supplies Xxxxxx products to retail locations outside Distributor's Area or to
any person (other than an authorized Xxxxxx distributor) who Distributor has
reason to believe will sell or supply all or part of such products to retail
locations outside Distributor's Area, Distributor's obligations under Section
3 of this Agreement shall extend to each such retail location. Distributor
shall notify Xxxxxx immediately of all such sales in order to ensure
effective monitoring of Distributor's compliance with all such obligations.
1.3 PERMITTED XXXXXX SALES. Xxxxxx reserves and shall have the
right to sell directly, if permitted by applicable law, to purchasers of Xxxxxx
products who are located in Distributor's Area where the retail sale or
consumption of such Xxxxxx products will occur outside Distributor's Area, or
are foreign governmental entities.
1.4 LACK OF SERVICE WITHIN TERRITORY. Notwithstanding the
provisions of this Section, Xxxxxx may, after giving notice to Distributor,
permit another person or persons to sell, or Xxxxxx may sell, one or more Xxxxxx
products within all or any part of Distributor's Area if Distributor is unable
or unwilling to provide uninterrupted service to all retail locations within all
or any part of Distributor's Area, provided, where required by law, permission
to do so is obtained from the appropriate governmental regulatory agency. If
Distributor regains its ability and willingness to service retail locations as
required under this Agreement, Xxxxxx shall reinstate Distributor to provide
such service, unless Xxxxxx has pursued additional remedies as provided herein
or by law and provided such reinstatement does not violate any agreement or law
applicable to Xxxxxx,
1.5 NEW BRANDS. This Agreement shall extend only to the brands
of Xxxxxx products listed on the Distributor Data Sheet. If Distributor is in
full compliance with this Agreement, and if the grant of such rights does not
contravene or breach any agreement or law applicable to Xxxxxx, Distributor
shall have the right to have added to the Distributor Data Sheet those
additional malt beverage brands (including brand extension of the Xxxxxx
products) which are sold by Xxxxxx generally to authorized Xxxxxx distributors
and which Xxxxxx decides to have sold in Distributor's Area; provided that such
right, if exercised by Distributor, must be exercised within ninety (90) days
after such brand is introduced by Xxxxxx and is available to be sold in
Distributor's Area.
1.6 RESERVATIONS OF RIGHTS. Xxxxxx reserves the unqualified
right to manage and conduct its business in all respects and shall be free at
all times to maintain or alter the formula, ingredients, labeling or packaging
of its products; to determine the prices or other terms on which it sells Xxxxxx
products; to produce or sell any particular brands; to discontinue the sale of
any of its products, packages or containers in any geographic area; and to make
all other decisions concerning the conduct of Xxxxxx'x business.
SECTION 2 SALES OF PRODUCT.
2.1 SALE TERMS. The prices charged by Xxxxxx to Distributor
for Xxxxxx products and other applicable terms of sale shall be those
established by Xxxxxx and in effect on the date of shipment. Xxxxxx shall
inform Distributor of its prices and other applicable terms of sale in writing
from time to time, but Xxxxxx shall have the unlimited right to change prices
and to establish terms of sale at any time.
2.2 PAYMENT TERMS. All sales by Xxxxxx to Distributor shall be
on a cash basis or on such credit terms as Xxxxxx, in its sole discretion, may
establish from time to time. Xxxxxx shall not be obligated to extend credit to
Distributor or to assist Distributor in securing credit. Xxxxxx'x acceptance of
any order from Distributor is subject to the condition that Distributor's
account with Xxxxxx will, on the date fixed for shipment, permit the shipment of
such order in compliance, with whatever credit terms Xxxxxx has established.
Irrespective of any designation by Distributor, Xxxxxx may, in its sole
discretion, apply, offset, reapply or transfer any payments made by or credit
due Distributor against the oldest item of account or indebtedness owed to
Xxxxxx. Regardless of the method of payment, Distributor hereby grants, and
Xxxxxx shall retain, a security interest in products and containers delivered to
Distributor until Xxxxxx receives full payment of all monies owed to Xxxxxx.
Upon Xxxxxx'x request, Distributor shall execute such documents as are necessary
to perfect Xxxxxx'x security interest.
2.3 ORDERS. All orders for Xxxxxx products placed by
Distributor shall be subject to Millers acceptance. Xxxxxx shall have the right
to specify the forms, procedures and processes (including electronic ordering
systems) governing the placement and fulfillment of such orders, including the
designation of the carrier, source brewery and the routing to be used for
delivery of such accepted orders. In the event that Xxxxxx is restricted in the
production, sale or delivery of its products by capacity limitations, acts of
governmental authority, strikes or any other cause, natural or otherwise, beyond
Xxxxxx'x control, Xxxxxx shall not be compelled to honor previously accepted
orders, but shall distribute available products among distributors in a fair and
equitable manner.
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2.4 TAXES. Distributor shall be responsible for all federal,
state and local sales, use, personal property, inventory and other taxes that
may be assessed on any Xxxxxx products or other Xxxxxx property in Distributor's
possession at the time such tax is assessed or determined. Distributor shall
also be responsible for any local, state and federal excise taxes on the
shipment of Xxxxxx products to Distributor to the extent that such excise taxes
are not included in Xxxxxx'x prices.
SECTION 3 DISTRIBUTOR'S RESPONSIBILITIES.
3.1 PROPER LICENSING. Distributor shall sell Xxxxxx products
only to retailers and other persons to whom Distributor is duly licensed to sell
such products. Distributor shall comply with all valid laws, regulations,
ordinances and orders, including those applicable to the sale of Xxxxxx
products, Distributor's performance under this Agreement, and the conduct of
Distributor's business. Distributor shall maintain all permits and licenses
necessary to sell and distribute Xxxxxx products in Distributor's Area.
Distributor shall submit to Xxxxxx, if requested by Xxxxxx, copies of all such
permits and licenses, subsequent amendments thereto, renewals thereof, and all
applications for such permits, licenses, amendments or renewals.
3.2 PERFORMANCE STANDARDS. Distributor shall, by using its
best efforts, vigorously and aggressively sell, deliver, merchandise, and
promote the full package line of Xxxxxx products listed on the Distributor Data
Sheet. Distributor shall also comply at all times with those Distributor
obligations described in the Performance Standards and its subparts, including
Sales, Operations, Quality, and Finance ("the Standards"), receipt of which is
hereby acknowledged. The Standards may be modified from time to time by Xxxxxx
upon the giving of reasonable notice to Distributor and any such modifications
shall not be deemed an amendment to this Agreement. The Standards, as modified
from time to time by Xxxxxx, shall be identical for all other authorized Xxxxxx
distributors.
(a) SALES. Distributor shall prepare and submit to
Xxxxxx an annual business plan in a form and content acceptable to Xxxxxx
("Business Plan"), which shall include sales, volume, distribution and financial
goals in total and by key channels; retail service policies; sales and
merchandising execution standards; point of sale plans; and management and
succession plans. The Business Plan shall be subject to Xxxxxx'x review and
written approval and shall be completed and ready to implement by January 1 of
each calendar year. Distributor and Manager (as defined in Section 4 below)
shall implement the approved Business Plan, including preparation and
implementation of detailed monthly sales plans, to achieve the goals established
therein; comply fully with the Business Plan and other commitments made to
Xxxxxx and, consult with Xxxxxx on adjustments to the Business Plan that may be
needed from time to time to meet changing market conditions.
(b) OPERATIONS. Distributor shall accurately forecast
and order Xxxxxx products in accordance with Xxxxxx'x then current procedures;
maintain an inventory of Xxxxxx products at levels determined by Xxxxxx and
sufficient to prevent out-of-stock occurrences; maintain a clean, operational,
controlled-temperature warehouse(s) of sufficient capacity to meet Xxxxxx'x
inventory, storage, and quality control requirements; and, properly handle and
protect from damage all Xxxxxx products and property owned by Xxxxxx.
(c) QUALITY. Distributor shall comply with Xxxxxx'x
code date requirements; prevent Xxxxxx products bearing expired code dates
("overage Xxxxxx products") from reaching retailers or consumers; retrieve
overage Xxxxxx products from retail locations; replace such products with
nonoverage Xxxxxx products at no cost to the retailer; and, destroy promptly any
damaged or overage Xxxxxx products at no cost to Xxxxxx. Distributor
acknowledges that its compliance with these Standards is essential to the
successful marketing of Xxxxxx products and to the preservation and enhancement
of Xxxxxx'x trademarks and goodwill.
(d) FINANCE. Distributor shall maintain sufficient
working capital to ensure that its facilities, equipment, inventory, and
personnel are adequate to compete effectively with other non-Xxxxxx brands of
malt beverages. Distributor shall purchase and maintain sufficient insurance
coverage; shall pay all federal
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state and local taxes imposed on it; and shall maintain a positive tangible
net worth. Distributor shall furnish to Xxxxxx annually within one hundred
and twenty (120) days after Distributor's fiscal year end financial
statements in compliance with generally accepted accounting principles
applied on a consistent basis, prepared by an independent accountant. The
financial statements shall include a balance sheet, income statement,
statement of cash flow, and appropriate notes to the financial statements.
Distributor shall furnish to Xxxxxx annually, in the Business Plan, both a
current year and two (2) year financial plan to include balance sheet, income
statement, and statement of cash flow, and appropriate notes supporting the
financial plans.
3.3 HOURS OF OPERATION. Distributor shall be open for business
during all hours and days necessary to receive products shipped from Xxxxxx and
to properly service retailers, including hours necessary to make regular
deliveries of Xxxxxx products with sufficient frequency to prevent retailer
out-of-stock occurrences.
3.4 SUBMISSIONS TO XXXXXX. Distributor shall submit only
complete and accurate notices, reports, claims, reimbursement requests, payment
requests or other communications to Xxxxxx. Records of all transactions,
including all price promotion allowance programs instituted by Xxxxxx, shall be
maintained by Distributor for a minimum of three (3) years or as prescribed by
state law, whichever is longer. Xxxxxx shall have the right to audit all such
records. For any Xxxxxx price promotion allowance program, Distributor shall be
required to file forms prescribed by Xxxxxx from time to time. Xxxxxx may audit
any reimbursement claims filed by Distributor. In the event Xxxxxx finds errors
greater than One Thousand Dollars ($1,000.00), or such other dollar amount set
by Xxxxxx from time to time, Xxxxxx may calculate the percentage rate of error
and, using that percentage rate of error, extrapolate the amount owed to Xxxxxx
for up to the prior three (3) years total reimbursement claims made by
Distributor to Xxxxxx. Xxxxxx shall notify Distributor of the extrapolated
audit results. Within thirty (30) days of such notice, Distributor must either
pay the extrapolated amount to Xxxxxx or pay for the cost of a full audit by
Xxxxxx or Xxxxxx'x designee. Xxxxxx reserves the right to enforce other
appropriate remedies, including those described in Section 7 below.
3.5 XXXXXX PROPERTY, PROPRIETARY MATERIALS AND INFORMATION.
All kegs, computer software, and other assets owned by Xxxxxx shall remain the
property of Xxxxxx and shall be returned to Xxxxxx in accordance with Xxxxxx'x
instructions. Xxxxxx trade secrets or other Xxxxxx proprietary materials (such
as point-of-sale, "P.O.S.") and information disclosed to Distributor shall be
retained in confidence by Distributor and shall only be used in the performance
of its obligations in accordance with this Agreement during the term of this
Agreement and thereafter so long as such materials and information remains a
trade secret or proprietary to Xxxxxx.
3.6 EMPLOYEES. Distributor shall recruit and retain a
qualified workforce of employees who reflect the diverse make-up of
Distributor's Area, and who are properly trained and adequately compensated to
meet Distributor's obligations hereunder.
3.7 OTHER OR ADDITIONAL REQUIREMENTS. Distributor shall
preserve and enhance the high quality image, reputation and goodwill of Xxxxxx
and Xxxxxx products. Distributor shall comply with the other provisions of this
Agreement and shall observe all other requirements that Xxxxxx may reasonably
impose from time to time for the vigorous and aggressive delivery,
merchandising, promotion and sale of Xxxxxx products.
SECTION 4 DISTRIBUTOR MANAGEMENT.
4.1 MANAGER DESIGNATION. Distributor agrees to have at all
times a Manager approved by Xxxxxx. Distributor shall designate candidate(s) as
described in Section 4.8 below, subject to Xxxxxx'x approval as described
therein. If Xxxxxx'x approval is given, the Manager shall be designated on the
Distributor Data Sheet. Xxxxxx has entered into this Agreement in reliance upon
and in consideration of the personal qualifications of the individual designated
as the Manager.
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4.2 MANAGER RESPONSIBILITIES. The Manager shall be qualified
to perform the duties described herein, and shall manage Distributor's business
to comply with the Distributor's obligations pursuant to this Agreement. The
Manager shall be granted the authority by Distributor and shall exercise
day-to-day operating control over the business and finances of Distributor,
including implementation of the Business Plan and the making of staffing and
personnel decisions. The Manager shall be provided with appropriate incentive
compensation to achieve the objectives in the Business Plan. (See Distributor
Manager Job Profile referenced in the Sales portion of the Standards.)
4.3 MANAGER VACANCY.
(a) Nothing contained in this Agreement shall be
construed as granting to the Manager any right to be retained in Distributor's
employ or as interfering with or limiting the sole and exclusive right of
Distributor to terminate the employment of the individual who is the Manager or
to change such individual's duties so that the individual is no longer acting as
the Manager.
(b) Xxxxxx shall have the right to withdraw its approval
of the Manager by notifying Distributor of the reasons for such withdrawal,
which reasons may include deficiencies in the Manager's performance or
Distributor's failure to comply with the Business Plan.
(c) Distributor shall notify Xxxxxx in writing if the
Manager becomes unable or ceases to manage the Distributor's business, no later
than ten (10) days from the occurrence of such event. Within sixty (60) days
after Distributor ceases for any reason to have a Manager, Distributor shall
submit to Xxxxxx a written application in the form provided by Xxxxxx requesting
Xxxxxx'x approval of a properly qualified candidate selected by Distributor for
the then vacant Manager position. Xxxxxx shall be provided with all information
reasonably related to the candidate's qualifications to serve as the Manager and
shall have the right to interview the candidate.
(d) Within forty-five (45) days after the date of
receipt of Distributor's application for a new Manager, Xxxxxx shall notify
Distributor of Xxxxxx'x approval or disapproval of the proposed Manager. If
Xxxxxx does not approve the proposed Manager, Distributor shall submit another
application within sixty (60) days and the procedures described herein shall be
repeated as often as necessary, provided that if a Manager is not approved
within one hundred and eighty (180) days after a vacancy has occurred, Xxxxxx
shall have the right to terminate this Agreement in accordance with the
procedures described in Section 7.2. Any changes in the identity of the Manager
shall be entered on the Distributor Data Sheet.
4.4 SUCCESSION PLANNING. Distributor shall identify key
positions and the persons assigned to those positions within its business and
shall include succession and development plans for these persons in the Business
Plan.
SECTION 5 DISTRIBUTOR OWNERSHIP AND TRANSFERS.
5.1 TRANSFER UPON OWNER'S DEATH.
(a) OWNERSHIP TRANSFER NOTIFICATION. Each owner of
Distributor shall submit for Xxxxxx'x prior written approval an Ownership
Transfer Notification in the form of Schedule V to the Distributor Data Sheet.
Xxxxxx'x approval of the Ownership Transfer Notification shall not be
unreasonably withheld. Except as provided in Section 5.1(c) below, upon the
death of an owner of Distributor, the interest of such owner may be conveyed
only as provided in the approved Ownership Transfer Notification.
(b) XXXXXX'X RIGHT TO PURCHASE. If (1) an owner of
Distributor dies without an approved Ownership Transfer Notification and the
estate of such owner attempts to sell, transfer or dispose of
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("Convey") the ownership interest in a manner not permitted under Section
5.1(c) below, or (2) a breach or default occurs under the Ownership Transfer
Notification, then Xxxxxx shall have the right and option to purchase
Distributor's Xxxxxx business in accordance with the procedures described in
Section 7.1(b). Xxxxxx may designate a third party who shall upon such
designation be granted the rights and obligations granted to Xxxxxx under
this Section, without recourse to Xxxxxx.
(c) TRANSFER TO FAMILY MEMBER. The prior written
approval of Xxxxxx shall not be required for the sale, transfer or disposition
("Transfer") at death of Distributor's business or any ownership interest
therein to a family member, provided that (1) such Transfer does not cause a
substantial adverse financial effect on the business or operations of
Distributor, and (2) upon such Transfer, Distributor shall have a Manager
approved by Xxxxxx. Any subsequent change in control of Distributor's business,
as defined in Section 5.3 below, shall require Xxxxxx'x prior written approval.
The Transfer to a trust for the benefit of a family member shall be governed by
Section 5.3 below. Family member is defined as the deceased owner's spouse,
child, grandchild, parent, brother or sister who is entitled to inherit the
deceased owner's ownership interest under the terms of the deceased owner's will
or the laws of intestate succession.
5.2 TRANSFER OF DISTRIBUTOR'S BUSINESS. In transactions other
than as provided for under Section 5.1 above, Distributor shall have the right
to Convey its entire business or any part of its business to an approved
purchaser, except when such disposition results in the Transfer of Distributor's
rights or obligations under this Agreement, or results in the inability of
Distributor to fulfill its obligations under this Agreement, in which event
Distributor shall follow the procedures and comply with the conditions set forth
in this Section:
(a) LETTER OF INTENT. Prior to any such Transfer,
Distributor shall deliver to Xxxxxx a bona fide nonbinding letter of intent
negotiated on an arm's length basis duly executed by Distributor and the
proposed purchaser, which letter of intent shall be expressly made subject to
Xxxxxx'x rights described in this Section and shall set forth all of the
essential terms of the transaction, including the property subject to the
Transfer; the consideration to be paid; the representations and warranties to be
given by Distributor; and, all other material terms and conditions which would
be contained in a definitive purchase and sale agreement. Such letter of intent
and a distributor application completed by the proposed purchaser shall be
submitted to Xxxxxx within five (5) days after execution by Distributor of the
letter of intent.
(b) DUE DILIGENCE. Upon receipt of the letter of
intent, Xxxxxx shall have (during Distributor's normal business hours) access to
and the right to inspect Distributor's business and its books and records,
including its financial statements, appraisals, environment assessments, assets
and liabilities, and Distributor shall cooperate in providing such data and
information that Xxxxxx may reasonably request.
(c) RIGHT OF FIRST REFUSAL. Upon receipt of the letter
of intent, Xxxxxx shall have the irrevocable right and option to purchase
Distributor's business or that part thereof which is the subject of the letter
of intent upon those terms and conditions and for the purchase price (or, if
such purchase price is not a liquidated cash price, for the equivalent cash
value) contained in such letter of intent. Such terms and conditions shall be
contained in a purchase and sale agreement to be duly executed by Distributor
and Xxxxxx, if Xxxxxx exercises its right and option. Xxxxxx shall have thirty
(30) days after receipt of the letter of intent and the information Xxxxxx may
reasonably request (including appraisals and environmental assessments requested
or commissioned by Xxxxxx) to exercise its right and option, which exercise
shall occur when written notice is given to Distributor. If Xxxxxx exercises
its right and option, Distributor shall promptly execute all documents
reasonably required to Convey Distributor's business or part thereof to Xxxxxx.
(d) REVIEW OF PROPOSED PURCHASER. If Xxxxxx does not
exercise its right and option described in Section 5.2(c) above, and Distributor
has complied with all terms in Section 5.2(c) above, Xxxxxx shall have sixty
(60) days from receipt of the completed distributor application to approve or
disapprove the proposed purchaser and transaction. Distributor may Convey its
business in accordance with the letter of intent subject to
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Xxxxxx'x prior written approval of the proposed purchaser, which approval
shall not be unreasonably withheld, and the purchaser's execution of the
current form of this Agreement applicable to other authorized Xxxxxx
distributors upon completion of the Transfer. Xxxxxx'x approval (if given)
shall be effective for a period of sixty (60) days after issuance (unless
extended by Xxxxxx) and thereafter shall be null and void. Distributor shall
promptly notify Xxxxxx of the completion of the Transfer. Xxxxxx shall
notify Distributor in writing if Xxxxxx disapproves the proposed purchaser.
The notice will include the reasons for the disapproval. If Xxxxxx
disapproves the proposed purchaser, Distributor shall not Convey its rights
under this Agreement or render itself unable to fulfill its obligations
hereunder unless and until it obtains Xxxxxx'x approval as described in this
Section 5.2.
(e) RELEASE. As part of the completion of the Transfer
described in this Section 5.2, (1) Distributor shall pay all sums owed or to be
owing to Xxxxxx; and (2) Distributor and Xxxxxx shall execute a mutual release
of all claims, of whatever nature, each party may have against the other, except
where such claims may arise out of or result from a breach or default of any
representation, warranty, covenant, agreement or obligation by Distributor that
may be contained in the purchase and sale agreement entered into with Xxxxxx.
(f) DESIGNEE. Xxxxxx may designate a third party who
shall upon such designation be granted all of the rights and obligations granted
to Xxxxxx under Section 5.2(a) through (c) above, without recourse to Xxxxxx,
provided that the mutual release described in Section 5.2(e) above shall be
entered into between Xxxxxx and Distributor.
5.3 CHANGE IN CONTROL. There shall be no change in the
control of Distributor's business, except as provided in Section 5.1(c)
above, without Xxxxxx'x prior written approval. As used herein, "a change in
the control of Distributor's business" means any change in ownership
interests, whether by one transaction or by the cumulative effect of several
transactions with the same or different parties, which has the legal or
practical effect of transferring the power to determine Distributor's
business policies. Such a change in control shall include: (1) any sale,
transfer, change of ownership or other disposition (by merger, share
exchange, sale of stock or otherwise) in either the record or beneficial
ownership of the following: (A) 10 percent or more of Distributor's voting
stock; (B) if Distributor is not incorporated, a 10 percent or more interest
in Distributor's business; (C) 10 percent or more of the voting stock of a
corporation or entity which owns 50 percent or more of Distributor's voting
stock; and (2) a change in the form of business entity presently used by
Distributor (e.g., a change from individual ownership or a partnership to a
corporation); and (3) the entering into or changing of any agreement
transferring any of the powers that determine the policies under which
Distributor's business shall be operated, including a partner, shareholder or
member voting trust or voting agreement. Without Xxxxxx'x prior written
approval, there shall be no grant of stock options, establishment of trusts
to hold stock or an interest in Distributor's business, nor execution of any
agreement by one or more owners of Distributor which provides that, under
certain circumstances, the interest of one of them in Distributor shall be
sold or purchased by one or more of the owners. It shall be Distributor's
responsibility to notify all of the owners of Distributor of the provisions
of this Section, to take those actions necessary to make such provisions
enforceable with respect to the owners of Distributor, and to notify Xxxxxx
promptly in writing of any sale, transfer, change of ownership or any other
disposition of an ownership interest in Distributor.
5.4 APPROVAL CRITERIA. In determining whether to approve or
disapprove, as the case may be, a proposed Transfer, change of ownership or any
other disposition of an ownership interest in Distributor's business under this
Section 5, Xxxxxx may consider the qualifications of the proposed purchaser or
transferee to fulfill the obligations of this Agreement, the effects of the
resulting business combination, the resulting territory configuration, the
potential advantages of alternative market combinations, and such other facts
and circumstances that Xxxxxx reasonably may deem to be relevant. In evaluating
the proposed purchaser's or transferee's qualifications, Xxxxxx may consider
such factors as it deems appropriate, including:
(a) Whether the proposed purchaser or transferee has the
financial resources to purchase and own Distributor or the specified interest in
it upon terms which will not jeopardize the future
7
operation of the Distributor business, and whether under such ownership
Distributor will be able to provide the financial support (including but not
limited to market spending, capital expenditures, and any equity
capitalization or refinancing requirements) necessary for the successful
operation of the Distributor business and to comply with the terms of this
Agreement.
(b) Whether the proposed purchaser or transferee and
manager have the proven business experience to successfully operate the
Distributor business, including whether the non-owner management of the proposed
purchaser or transferee has appropriate incentives to comply with the
Distributor obligations under this Agreement. Prior experience in the wholesale
malt beverage distribution business is strongly preferred by Xxxxxx. If a
proposed purchaser or transferee would be a first time Xxxxxx distributor, the
purchaser must be willing to participate along with Distributor's management in
a series of training classes in order to be educated on Xxxxxx'x business
practices.
(c) Whether the proposed purchaser or transferee after
the Transfer will be engaged in selling competing brands of malt beverages or
other products to the extent that such sales would, in the reasonable judgment
of Xxxxxx, interfere with the successful marketing of, and time and resources
devoted to, the Xxxxxx products in Distributor's Area.
5.5 NO PUBLIC OWNERSHIP. Unless Xxxxxx has given its prior
written approval, neither Distributor nor any corporation or entity which,
directly or indirectly, has an ownership interest in Distributor shall be owned
by the public; and there shall be no sale or offering for sale on any stock
exchange, over the counter, or on the open market of any securities of
Distributor or securities of any corporation or entity which, directly or
indirectly, has an ownership interest in Distributor.
5.6 PROVIDING AGREEMENT COPY. It shall be Distributor's
responsibility to furnish a copy of this Agreement to any prospective purchaser
or transferee of Distributor or of any ownership interest in Distributor.
5.7 CHANGE IN DISTRIBUTOR'S BUSINESS. Prior to Distributor's
acquisition or divestiture of any or all of its business other than its Xxxxxx
business, Distributor shall provide Xxxxxx with written notice of its Intended
acquisition or divestiture and a written plan describing how Distributor will
maintain or enhance its focus on Xxxxxx products following such action,
including any amendment and resubmission for Xxxxxx approval of Distributor's
Business Plan.
SECTION 6 DISTRIBUTOR'S RIGHT TO TERMINATE.
Distributor shall have the right to terminate this Agreement at
any time by giving Xxxxxx at least ninety (90) days' prior written notice. In
such event, Xxxxxx'x sole obligation to Distributor shall be the purchase of
Distributor's inventory and point of sale pursuant to Section 8.3.
SECTION 7 XXXXXX'X RIGHT TO TERMINATE.
7.1 TERMINATION WITH CURE. Except as provided in Section 7.2
below, Xxxxxx may at any time initiate termination in accordance with the
procedures specified in this Section if Distributor fails to comply with any
commitment or undertaking stated in its application, or with any of the
obligations set forth in this Agreement or the Standards, or as otherwise
permitted by state law.
(a) Xxxxxx shall initiate such termination by providing
written notice to Distributor which shall state the nature of Distributor's
noncompliance. Subject to extensions granted at Xxxxxx'x sole discretion,
Distributor shall then have thirty (30) days in which to submit a plan of
corrective action and an additional sixty (60) days to cure such noncompliance
in accordance with such plan. If Distributor fails to cure on a timely basis,
Xxxxxx shall have the right to terminate this Agreement immediately upon written
notice.
8
(b) Upon such termination, and the execution of a
general release of all claims, of whatever nature, which Distributor may have
against Xxxxxx, Xxxxxx shall pay Distributor the amount prescribed in the
Finance portion of the Standards (the "Termination with Cure Payment"). If the
Distributor, based on a monthly trend analysis, has not engaged in its business
in the ordinary course (including pre-loading or over selling the market) in the
previous two (2) months prior to the termination of the Agreement then the
Termination with Cure Payment will be adjusted by Xxxxxx accordingly.
7.2 TERMINATION WITHOUT CURE. If any of the following events
occur, Xxxxxx shall have the right to terminate this Agreement immediately upon
giving written notice without any obligation on Xxxxxx'x part to follow the
procedures described in Section 7.1 above or to make a Termination with Cure
Payment to Distributor:
(a) Conviction of Distributor or any of Distributor's
owners of a felony.
(b) Distributor's fraudulent conduct or substantial
misrepresentation in any of its dealings with Xxxxxx or with others concerning
Xxxxxx products.
(c) Any significant variation between the financial data
submitted to Xxxxxx in Distributor's application and the actual financial
condition of Distributor as reflected in Distributor's balance sheet at the time
Distributor commences operations under this Agreement.
(d) The cessation of Distributor's business with respect
to Xxxxxx products or the revocation or suspension of any of Distributor's
federal, state or local licenses or permits for more than fifteen (15) days, if
such license or permit is required for the normal operation of Distributor's
business.
(e) Distributor's insolvency (including Distributor's
inability to pay its debts as they mature) or failure to pay monies due Xxxxxx
in accordance with the terms of sale established by Xxxxxx, Distributor's
assignment or attempt to assign for the benefit of creditors, the institution of
bankruptcy proceedings by or against Distributor, or the dissolution or
liquidation of Distributor.
(f) Any disposition of Distributor's business, change of
control of Distributor's business, or attempt to assign this Agreement in
violation of Section 5 (except Section 5.1(b)) or 14 of this Agreement or
Distributor's violation of the other provisions of Section 5 of this Agreement.
(g) Distributor's breach or violation of the provisions
of Sections 1, 11 or 14 of this Agreement.
(h) Distributor's failure to obtain Xxxxxx'x prior
written approval of a Manager within the time period described in Section 4.3(d)
above.
(i) Distributor's sale(s) of overage Xxxxxx products,
the repackaging of overage Xxxxxx products, or the intentional mislabeling of
Xxxxxx products.
(j) Distributor's failure to undertake a good faith
effort to cure noncompliance pursuant to Section 7.1 above.
(k) Any other right to terminate granted under state
law, statute or regulation.
7.3 CONTEMPORANEOUS TERMINATION. Xxxxxx shall have the right
to terminate this Agreement at any time by giving Distributor at least thirty
(30) days' prior written notice, provided that Xxxxxx contemporaneously gives
such notice to all other authorized Xxxxxx distributors. Xxxxxx shall incur no
liability to
9
Distributor by reason of such termination. In the event Xxxxxx exercises its
right under this Section and offers other distributors the right to enter
into a new agreement, Xxxxxx shall offer Distributor the right to enter into
a new agreement upon substantially similar terms and conditions.
SECTION 8 POST TERMINATION PROVISIONS.
In the event this Agreement is terminated pursuant to Sections 6,
7.1, or 7.2, or if Distributor fails to enter into a new agreement pursuant to
Section 7.3 or to execute an amendment pursuant to Section 11.1, the following
provisions shall apply:
8.1 ORDER CANCELLATION. Xxxxxx shall have the right to
terminate unfilled orders and to stop or re-route any shipment en route to
Distributor.
8.2 PROPERTY RETURN. Within ten (10) days after such
termination, Distributor shall return to Xxxxxx all property belonging to Xxxxxx
in Distributor's possession or control. Xxxxxx shall not be liable to
Distributor for any expenses incurred by Distributor in connection with such
property. If Distributor has placed a deposit with Xxxxxx on any such property,
Xxxxxx shall refund such deposit to Distributor or credit an equivalent amount
to Distributor's account when such property is returned in the same condition in
which it was delivered by Xxxxxx to Distributor, reasonable wear and tear
excepted.
8.3 REPURCHASE FOLLOWING TERMINATION. Within ten (10) days
after such termination, Distributor shall sell and Xxxxxx shall purchase (1)
Distributor's undamaged, merchantable, and originally packaged inventory of
non-overage Xxxxxx products purchased from Xxxxxx, and (2) Distributor's
current, operable, undamaged and merchantable P.O.S. related to Xxxxxx products.
Such purchased inventory and P.O.S. shall be sold to Xxxxxx with good and
marketable title, free and clear of all liens and encumbrances.
(a) The purchase price shall be equal to the sum (1) of
the net price actually paid by Distributor (A) to Xxxxxx for the inventory, and
(B) to Xxxxxx or others for the P.O.S.; (2) of any taxes paid by Distributor in
connection with purchasing the inventory and P.O.S.; (3) of the cost of
transporting the inventory and P.O.S. to Distributor's warehouse (minus any
freight charges that Distributor would have incurred in returning empty
returnable containers to Xxxxxx); (4) of a handling charge to be established
from time to time by Xxxxxx; and (5) less Xxxxxx'x costs in removing overage
Xxxxxx products from Distributor's Area.
(b) In lieu of paying the purchase price described
above, Xxxxxx may, at its election, credit the equivalent amount to
Distributor's account.
SECTION 9 XXXXXX TRADE DESIGNATIONS.
9.1 Distributor hereby acknowledges Xxxxxx'x exclusive
ownership and other rights in the various trademarks, trade names, service
marks, trade dress and other trade designations (collectively "trade
designations") relating to Xxxxxx'x business or products. Xxxxxx hereby grants
Distributor a nonexclusive, non-assignable, non-licensable privilege to use
Xxxxxx trade designations only in a lawful manner and only in connection with
the distribution, advertising, display and sale of Xxxxxx products. This
privilege shall terminate upon termination of this Agreement. Such trade
designations shall be used only in manners, forms and contexts specified or
approved in writing by Xxxxxx, and upon Xxxxxx'x request, Distributor shall
change or discontinue the way in which Distributor uses any Xxxxxx trade
designation. Distributor agrees that it shall not manufacture or have
manufactured any merchandise bearing such designations without Xxxxxx'x prior
written approval.
9.2 Distributor agrees to remove all Xxxxxx trade designations
affixed in any fashion to property owned or controlled by Distributor (including
vehicles, equipment, and office supplies) before leasing,
10
selling or otherwise transferring such property or control thereof to another
person or before putting such property to any use not connected with the
distribution of Xxxxxx products.
9.3 Distributor agrees not to use Xxxxxx trade designations in
Distributor's corporate or business name without Xxxxxx'x prior written
approval. If such approval is not given by Xxxxxx, Distributor agrees to
discontinue all such use and formally change any such name at its own expense
immediately upon termination of this Agreement.
9.4 If Distributor violates any of the provisions of Sections
9.1, 9.2 or 9.3 above, Distributor shall reimburse Xxxxxx for all costs,
attorneys' fees, and other expenses incurred by Xxxxxx in any action for damages
or injunctive relief brought to enforce this Section.
9.5 Distributor agrees to notify Xxxxxx of any infringements of
Xxxxxx trade designations that Distributor discovers and to assist Xxxxxx in
taking whatever legal action against such infringement as Xxxxxx, in its sole
discretion, may decide is appropriate. Xxxxxx agrees to bear all expenses and
costs incident to any such action.
SECTION 10 DISTRIBUTOR'S REPRESENTATIONS.
Distributor represents and warrants to Xxxxxx that at the time of
the entering into of this Agreement and during the term of this Agreement:
10.1 The information submitted by or on behalf of Distributor to
Xxxxxx, including Distributor's application, any Business Plans, and the
information on the Distributor Data Sheet (which shall have been completed and
signed by Distributor at the time this Agreement is executed) is true and
complete.
10.2 Distributor has all permits and licenses necessary for
Distributor lawfully to distribute Xxxxxx products in Distributor's Area (as
defined in Sections 1.1 and 1.2 above).
10.3 Distributor has not paid nor agreed to pay any fee or
monetary consideration or anything of value to Xxxxxx or to or for the benefit
of any Xxxxxx officer, director, employee, affiliate, or representative with
respect to the issuance of this Agreement, including the right to enter into a
business or to continue a business contemplated in this Agreement.
SECTION 11 AGREEMENT AMENDMENTS.
11.1 Xxxxxx may at anytime propose an amendment to this
Agreement. Distributor shall indicate its acceptance of any such amendment by
returning two executed copies thereof to Xxxxxx. The amendment shall become
effective on the date executed by Xxxxxx, which shall retain one executed copy
of the amendment and shall return the other executed copy to Distributor. If
Distributor does not return an executed amendment to Xxxxxx within ninety (90)
days' after the proposed amendment is submitted to Distributor, this Agreement
shall immediately terminate without liability to either party, but only if
Xxxxxx has contemporaneously submitted the same proposed amendment to other
authorized Xxxxxx distributors who have executed this form of Agreement in all
jurisdictions in which such amendment would be lawful.
11.2 The provisions of Section 11.1 above shall not apply to
changes to the Distributor Data Sheet or the Standards. Distributor shall
notify Xxxxxx immediately of any such changes contained in the Distributor Data
Sheet applicable to Distributor. Except as otherwise provided in this
Agreement, no change in the Distributor Data Sheet by one party shall alter the
other party's rights or obligations hereunder, unless Xxxxxx shall have given
its prior written approval and Distributor shall have given its approval in
writing.
11
SECTION 12 COMPLIANCE WITH LAW.
The illegality or unenforceability of any provision of this
Agreement shall not impair the legality or enforceability of any other
provision. The laws, rules and regulations of the jurisdiction in which
Distributor conducts its business are hereby incorporated in this Agreement to
the extent that such laws, rules and regulations are required to be so
incorporated and shall supersede any conflicting provision of this Agreement.
If required by applicable law, Xxxxxx and Distributor may enter into an
amendment of this Agreement for the sole purpose of complying with such law.
SECTION 13 NOTICE.
All notices that are required or permitted to be given under this
Agreement shall be in writing, duly signed by the party giving such notice,
shall be transmitted by prepaid express overnight courier with proof of
delivery, by personal delivery, or by registered or certified mail, with return
receipt requested and postage prepaid, and, depending upon the means of
transmittal, shall be effective when delivered to the courier, delivered to the
recipient, or mailed. Notices shall be addressed or delivered: (1) if to
Distributor, to the address of Distributor set forth in the Distributor Data
Sheet; or (2) if to Xxxxxx, to Xxxxxx Brewing Company, Attention: Distributor
Services Department, 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000,
with a copy to the Xxxxxx Market Area Office that has responsibility for
Distributor's Area. The address of either party may be changed by notice to the
other party given pursuant to this Section.
SECTION 14 ASSIGNMENTS.
Except as provided in Section 5, any transfer, sale, pledge,
encumbrance, or assignment of this Agreement or of any rights or obligations
under this Agreement, in whole or in part, whether by operation of law or
otherwise, shall be null and void, unless Xxxxxx has given its prior written
approval.
SECTION 15 CONFIDENTIALITY.
Distributor financial data and ownership transfer information
obtained by Xxxxxx pursuant to this Agreement shall be treated by Xxxxxx and its
employees as confidential information and shall not be disclosed to any other
party without Distributor's written consent, unless such disclosure is compelled
by a court or governmental agency.
SECTION 16 MISCELLANEOUS PROVISIONS.
16.1 As used in this Agreement, "prior written approval"
requires a written communication signed by two corporate officers of Xxxxxx;
"authorized Xxxxxx distributor" shall mean a distributor who is party to a
written distributor agreement with Xxxxxx which is currently in effect who sells
Xxxxxx products solely in the United States and who has executed this form of
Agreement; "including" shall mean including but not limited to; and, "good
faith" means honesty in fact and the observance of reasonable commercial
standards of fair dealing in the trade.
16.2 This Agreement, the Standards, and the attached Distributor
Data Sheet constitute the entire agreement between Xxxxxx and Distributor with
regard to the subject matter described herein. No representation, promise,
inducement or statement of intention, whether oral or written, other than those
set forth in this Agreement, the Standards and the attached Distributor Data
Sheet or referred to in Section 3.2 above has been made by Xxxxxx or
Distributor, and neither party shall be bound by or liable for any other alleged
representation, promise, inducement or statement of intention. In the event of
an inconsistency between this Agreement and any document incorporated herein,
the terms of this Agreement shall control. Notwithstanding anything to the
contrary in any prior written agreement between Xxxxxx and Distributor, this
Agreement terminates
12
and supersedes all previous distributor agreements between Xxxxxx and
Distributor, except for sums owed to Xxxxxx by Distributor arising out of
such prior agreements between the parties.
16.3 The failure of either Xxxxxx or Distributor at any time or
times to enforce any provision of this Agreement shall in no way be construed as
a waiver of such provision and shall not affect the right of that party at a
later time to enforce each and every such provision.
16.4 Except as specifically provided for in this Agreement, no
person, including any officer, agent or employee of Xxxxxx, has any authority to
amend, modify, waive, supersede or cancel this Agreement or any terms or
provisions of this Agreement. No conduct of any such person shall be construed
to create that authority.
16.5 Distributor acknowledges that it is, and shall remain, an
independent business entity. Xxxxxx and Distributor are not joint venturers or
partners, and, neither may act as the agent, employee, or fiduciary of the
other.
16.6 From time to time, Xxxxxx may designate on the Distributor
Data Sheet as a Xxxxxx product a product which is sold by a Xxxxxx subsidiary or
affiliate, in which event that subsidiary or affiliate shall be included within
the definition of Xxxxxx and that product included within the definition of
Xxxxxx products with regard to application of the terms and conditions of this
Agreement thereto.
16.7 From time to time, Xxxxxx may enter into agreements with
other entities. Upon designation on the Distributor Data Sheet, such entities
and/or such entities' products shall be included in this Agreement, as described
in the Distributor Data Sheet.
16.8 Any action, claim, suit or proceeding between Xxxxxx and
Distributor or any owners of Distributor, whether based on federal, state
statutory or common law, including but not limited to, any and all disputes
relating to, arising out of or in connection with the interpretation,
performance or the nonperformance of this Agreement and any and all disputes
arising out of or in connection with transactions in any way related to this
Agreement (including the termination of this Agreement) shall be litigated
solely and exclusively before the United States District Court for the Eastern
District of the State of Wisconsin. The parties consent to the IN PERSONAM
jurisdiction of said court for the purposes of any such litigation, and waive,
fully and completely, any right to dismiss and/or transfer any action pursuant
to 28 U.S.C. Section 1404 or 1406 (or any successor statutes) or the doctrine
of forum non conveniens. In the event the United States District Court does not
have subject matter jurisdiction of said matter, then such matters shall be
litigated solely and exclusively before the appropriate state court of competent
jurisdiction located in Milwaukee, Wisconsin, and the parties consent to the
personal jurisdiction of such courts for the purpose of such litigation.
16.9 If under applicable law Distributor is granted the right to
recover or be reimbursed attorneys' fees and other costs if it were to prevail
in any action against Xxxxxx, Distributor agrees to reimburse Xxxxxx for
Xxxxxx'x attorneys' fees and other costs which Xxxxxx may incur in the
successful enforcement of this Agreement or in Xxxxxx'x successful defense of an
action brought against Xxxxxx by or on behalf of Distributor or an owner of
Distributor.
16.10 Xxxxxx, Distributor and the owners of Distributor waive any
right to trial by jury with respect to any claim or action relating to or
arising from this Agreement or any action or omission of any signatory hereto
(or its subsidiaries or affiliates) in connection with the transactions
contemplated by this Agreement.
13
16.11 From time to time, Xxxxxx may designate in the Standards
remedies related to noncompliance with the Standards (or portions thereof). The
parties agree that use of such remedies is fair and reasonable and does not
constitute waiver of any other remedies available to Xxxxxx hereunder (including
those remedies described in Section 7 above) or by law.
16.12 Each heading contained in this Agreement is inserted for
convenience only and shall not be deemed to constitute a part of this Agreement
for interpretive purposes.
14
SECTION 17 ACKNOWLEDGMENTS.
The undersigned, in their personal or representative capacities,
acknowledge that they have read this Agreement in full and have had an
opportunity to review it with counsel; that they understand and agree to each of
the foregoing provisions; and, that they are duly authorized to sign this
Agreement.
This Agreement is effective on the 1 day of January ,
-------- ----------
1999 .
-----
PEPSI-COLA/7-UP BEVERAGE GROUP OF LOUISIANA
D/B/A XXXXXX BRANDS OF GREATER NEW ORLEANS
------------------------------------------
By Delta Beverage Group,Inc.,
Managing Partner
By: /s/: Xxxxxxx X. Xxxxxx (SEAL)
---------------------------
(President)
CORPORATE
SEAL
By: /s/: Xxxx X. Xxxxxxxx (SEAL)
-------------------------
(Vice President and Chief Financial
Officer)
By: (SEAL)
-----------------------------
(Partner)
By: (SEAL)
----------------------------
(Partner)
XXXXXX BREWING COMPANY
By: /s/ [illegible]
--------------------------
(Senior Vice President)
By: /s/ [illegible]
----------------------------
(Assistant Secretary)
*Delete inapplicable words beneath signature lines.
In the case of a partnership, all partners must sign.
DISTRIBUTOR DATA SHEET
This distributor data sheet is a part of the Xxxxxx Brewing Company Distributor
Agreement between the undersigned Distributor (referred to herein as
"DISTRIBUTOR") and the Xxxxxx Brewing Company. Changes in the information
contained herein may be made only in accordance with said Agreement, and must be
promptly brought to the attention of Xxxxxx'x Distributor Services Department
with a copy to the Xxxxxx Market Area Office that has responsibility for
Distributor's Area. The Distributor Data Sheet is comprised of the following:
/X/ Schedule I: Ownership Data /X/ Schedule IV: Product Listing/Mail-
Ship Information
/X/ Schedule II: Manager Data /X/ Schedule V: Ownership Transfer
Notification
/X/ Schedule III: Distributor's / / Schedule VI: [Reserved]
Area
Check the appropriate box(es) for the information attached.
On the initial Distributor Data Sheet, all information must be supplied.
Dated this 1 day of January , 1999 .
------ --------------- --------
PEPSI-COLA/7-UP BEVERAGE GROUP OF LOUISIANA
D/B/A XXXXXX BRANDS OF GREATER NEW ORLEANS
-------------------------------------------
By Delta Beverage Group, Inc.,
Managing Partner
By: /s/: Xxxxxxx X. Xxxxxx (SEAL)
------------------------------------
(President)
CORPORATE
SEAL
By: /s/: Xxxx X. Xxxxxxxx (SEAL)
-----------------------------------
(Vice President and Chief
Financial Officer)
By: (SEAL)
-------------------------------------
(Partner)
By: (SEAL)
--------------------------------------
(Partner)
XXXXXX BREWING COMPANY
By: /s/ [illegible]
------------------------------------
(Senior Vice President)
By: /s/ [illegible]
------------------------------------
(Assistant Secretary)
*Delete inapplicable words beneath signature lines.
In the case of a partnership, all partners must sign.
XXXXXX BRANDS OF
GREATER NEW ORLEANS
DISTRIBUTOR DATA SHEET
SCHEDULE I Page 1
DATE: January 1, 1999
----------------
OWNERSHIP DATA
SOLE PROPRIETOR (Name of Owner):
PARTNERSHIP (Name): PEPSI-COLA/SEVEN-UP BEVERAGE GROUP OF LOUISIANA
TYPE OF PARTNERSHIP (e.g., general or limited liability):
STATE OF ORGANIZATION:
% NAMES OF %
PARTNERS* OWNED PARTNERS OWNED
--------------------------------------------------------------------------------------
Delta Beverage Group, Inc. 62%*
Poydras Street Investors LLC 38%
*Delta Beverage Group, Inc. is Managing General Partner.
--------
CORPORATION (Name): Pepsi-Cola/Seven-Up Beverage Group of
Louisiana
d/b/a Xxxxxx Brands of Greater New Orleans
CITY: Harahan
STATE OF INCORPORATION:
REGISTERED AGENT (Name and Address):
LIMITED LIABILITY COMPANY (Name):
STATE OF ORGANIZATION:
NAMES OF SHARES OR NAMES OF SHARES OR
STOCKHOLDER/MEMBERS* INTEREST STOCKHOLDERS/MEMBERS* INTEREST
-------------------- OWNED ---------------------- OWNED
------- -----------
--------
COMMON PREFERRED
--------------------------
TOTAL SHARES AUTHORIZED:
TOTAL SHARES ISSUED AND OUTSTANDING:
*All Partners/Members/Stockholders MUST be listed and general partners must be
designated with an asterisk prior to their name.
XXXXXX BRANDS OF
GREATER NEW ORLEANS
DISTRIBUTOR DATA SHEET
SCHEDULE I Page 2
DATE: January 1, 1999
-----------------
CORPORATION (cont'd)
Officers and Directors (The principal officers and principal directors must be
indicated by an asterisk inserted prior to their name.)
NAME TITLE
---- --------
Xxxxxx X. Xxxxxx Director, Chairman
*Xxxxxx X. Xxxxxx CEO, Director
*Xxxxxxx X. Xxxxxx COO, President
*Xxxx X. Xxxxxxxx CFO, Vice President, Director
Xxxx X. Xxxxxxxx Director
Xxxxxx X. Xxxxxxxxxx Director
Xxxx Xxxxxxxx Director
Xxxxxx X. Xxxxxx Director
Xxxx X. Xxxx Director
Xxxxxxxxxxx X. Xxxxxxx Director
Name and address of person(s) (other than those listed above) having ANY
financial interest whatsoever in Distributor:
NATURE AND EXTENT OF
NAME ADDRESS FINANCIAL INTEREST
------- --------- ---------------------
Northwestern Mutual Life 000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
CIGNA 000 Xxxxxxx Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
NationsBank, N.A. Independence Center Lender
Xxxxxxxxx, XX 00000
Norwest Bank Minnesota, 6th and Marquette Trustee, Senior Notes Due
N.A. Xxxxxxxxxxx, XX 00000- 2003
0069
XXXXXX BRANDS OF
GREATER NEW ORLEANS
DISTRIBUTOR DATA SHEET
SCHEDULE I Page 3
DATE: January 1, 1999
-----------------
OWNERSHIP DATA
If any of the stock of your company or corporation is owned by another entity(s)
(such as a corporation or trust), rather than individual stockholders, complete
the following:
Name and address of entity(s) owning or controlling the stock:
Delta Beverage Group, Inc. 0000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Type of entity (corporation, trust, estate, etc.): Corporation, Delaware
Names of all stockholders, trustees, and administrators who own or control the
entity:
NUMBER % OF OWNERSHIP
NAME OF SHARES OR CONTROL
-------- ----------- -------------
Voting Stockholders:
Pohlad Companies(1) 60.8% 23%
Equity Beverage(2) 15.9% 6%
Arbeit & Co.(3) 20.6% 8%
Xxx Xxxxxx 2.6% 1%
Xxxx Xxxxxxxx .1% Nil
Non-Voting Stockholders:
First Bank System, Inc. 1%
Norwest Equity Capital, Inc. 7%
Massachusetts Mutual Life 12%
Northwestern Mutual Life 18%
CIGNA and Subsidiaries 16%
Xxxxxx Xxxxxxx Funds 8%
(1) 100% Owned Xxxxx, Xxxxxx and Xxxxxxx Xxxxxx, in equal interests
(2) 100% Owned Pepsi-Cola Bottling
(3) 100% Owned Mr. and Xxx. Xxxxxx Xxxxxxxxxx, in joint interest
XXXXXX BRANDS OF
GREATER NEW ORLEANS
DISTRIBUTOR DATA SHEET
SCHEDULE I Page 4
DATE: January 1, 1999
-----------------
OWNERSHIP DATA
If any of the stock of your company is owned by another entity(s) (such as a
corporation or trust), rather than individual stockholders, complete the
following:
Name and address of entity(s) owning or controlling the stock:
Poydras Street Investors LLC 0000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Type of entity (corporation, trust, estate, etc.): Limited Liability Company,
Louisiana
Names of all stockholders, trustees, and administrators who own or control the
entity:
NUMBER % OF OWNERSHIP
NAME OF SHARES OR CONTROL
-------- ----------- ---------------
Xxxxx Xxxxxx Xxxxxxx, Xx. 40%
Xxxx Xxxxx 20%
Xxxxx Xxxxxx Xxxxxxx, Xx. 20%
Xxxxxxxx Xxxxxxx Perry Trust 20%
XXXXXX BRANDS OF
GREATER NEW ORLEANS
DISTRIBUTOR DATA SHEET
SCHEDULE III
DATE: January 1, 1999
-----------------
DISTRIBUTOR'S AREA
"The following geographical area constitutes Distributor's Area as defined and
subject to the limitations set forth in Section 1 of the Distributor Agreement."
Pepsi-Cola/Seven-Up Beverage Group of Louisiana
d/b/a Xxxxxx Brands of Greater New Orleans - Harahan
In the State of Louisiana:
All of the parish of SAINT XXXXXXX, the parish of PLAQUEMINES, the parish of
TERREBONNE and the parish of JEFFERSON.
All of ORLEANS parish, except for that portion east of the junction of U.S.
Highways 11 and 90.
That portion of ST. XXXX THE BAPTIST Parish west of the Mississippi River.
That portion of ST. XXXXXXX Xxxxxx west of the Mississippi River.
All of LAFOURCHE Parish, excluding that portion north of one mile south of the
November 1, 1976, city limits of Thibodaux on Louisiana Hwy. 1 and 308; exclude
that portion north of five miles south of the November 1, 1976, Xxxxxxx city
limits.
That portion of ST. XXXXX Xxxxxx on Highway 20 from the Mississippi River,
including the town of Vacherie, to the junction of Louisiana Highways 20 and
644.
DISTRIBUTOR DATA SHEET
SCHEDULE IV
DATE: 1/1/99
--------
XXXXXX PRODUCT LISTING
MAILING - SHIPPING INFORMATION
PART I. BRANDS SUBJECT TO AGREEMENT:
Icehouse Xxxxxxx Xxxx Light Milwaukee's Best
Lite Xxxxxx Beer Milwaukee's Best Light
Lite Ice Xxxxxx Genuine Draft Red Dog
Lowenbrau Dark Xxxxxx Genuine Draft Light Sharp's
Lowenbrau Special Xxxxxx High Life Southpaw Light
Magnum Xxxxxx High Life Ice
Xxxxxxx Xxxx Xxxxxx High Life Light
PART II. DISTRIBUTORS:
Name & Mailing Address: Pepsi-Cola/7-Up Beverage Group of Louisiana
d/b/a Xxxxxx Brands of Greater New Orleans
0000 Xxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxx 00000
Shipping Address: 0000 Xxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxx 00000
Primary Telephone Number: (000) 000-0000
Primary Fax Number: (000) 000-0000
Primary BPN E-Mail Address: XXXXXXXXXX@xxxxx.xxx.xxx
Federal Employee ID Number: 00-0000000
Federal Basic Permit No.: 71000240
Wholesaler's License No.: 16171771
Importer's License No.:
Other required license numbers (give number and nature):
*If more than one state or jurisdiction is involved, give data for all.
AMENDMENT TO
XXXXXX BREWING COMPANY DISTRIBUTOR AGREEMENT
The Xxxxxx Brewing Company (Xxxxxx) and Pepsi-Cola/7-Up Beverage Group of
Louisiana d/b/a Xxxxxx Brands of Greater New Orleans of Harahan, Louisiana
mutually agree that the Distributor Data Sheet of the Xxxxxx Brewing Company
Distributor Agreement prevailing between the parties, which Agreement was
effective January 1, 1999, be amended by deleting the following Schedule(s) and
substituting therefor the attached Schedule(s):
/ / Schedule I: Ownership / / Schedule IV: Product Listing/Mail-
Data Ship Information
/X/ Schedule II: Manager Data / / Schedule V: Ownership Transfer
Notification
/ / Schedule III: Distributor's / / Schedule VI: [Reserved]
Area
This signature page, along with the amended Schedules containing those changes
in information, are hereby incorporated into the Distributor Data sheet. Except
as otherwise provided in the Agreement, no change in the Distributor Data Sheet
by one party shall alter the other party's rights or obligations under the
Agreement, unless the other party provides its prior written approval.
Execution of this signature page by the other party shall constitute such
approval. All other terms in such Xxxxxx Brewing Company Distributor Agreement
and its Distributor Data Sheet are to remain in full force and effect.
Dated at Milwaukee, Wisconsin, June 22, 1999 .
-------------------
PEPSI-COLA/7-UP BEVERAGE GROUP OF LOUISIANA
D/B/A XXXXXX BRANDS OF GREATER NEW ORLEANS
(Sole Proprietorship, Partnership,
Corporation, L.L.C.)*
By /s/: Xxxxxxx X. Xxxxxx (SEAL)
----------------------------------
CORPORATE (President)
SEAL
By /s/: Xxxx X. Xxxxxxxx (SEAL)
-----------------------------------
(Vice President and Chief
Financial Officer)
By (SEAL)
------------------------------------
(Owner, Member, Partner, Secretary)
By (SEAL)
------------------------------------
(Owner, Member, Partner, Secretary)
XXXXXX BREWING COMPANY
By: /s/ [illegible]
----------------------------------
Senior Vice President
By: /s/ [illegible]
-----------------------------------
Assistant Secretary
*Delete inapplicable words beneath signature lines. In the case of a
partnership, all partners must sign.
