Amended and Restated Continental Distribution and Licensing Agreement

Exhibit 10.38

Amended and Restated Continental Distribution and Licensing Agreement

     This Amended and Restated Continental Distribution and Licensing Agreement (“Agreement”) amends and restates the Continental Distribution and Licensing Agreement, dated November 15, 2003, between Widmer Brothers Brewing Company and Kona Brewery LLC.

BACKGROUND

AGREEMENT

     Kona and CBAI agree as follows:

     1.  Definitions .

          1.1 “ABI” means Anheuser-Busch, Incorporated.

          1.2 “ABI Distributor Agreement” means one or more distributor agreements between CBAI and ABI.”

          1.3 “Kona Merchandise” means, to the extent related to the Products, all point of sale and similar marketing materials and all non-beverage products that are now or hereafter manufactured or sold by Kona or CBAI.

          1.4 “Kona Intellectual Property” means the trademarks (including, without limitation, those trademarks set forth on Exhibit A ), logos, trade dress, copyrights, distinctive promotional slogans, distinctive color combinations, product shapes, and distinctive features in

the Products, or other intellectual property related to the Products, including, without limitation, any derivative works related to any existing Kona Intellectual Property and any intellectual property related to any New Products.

          1.5 “PCEs” or “Product Case Equivalents” means the number of barrels of Product multiplied by 13.78.

          1.6 “Products” means all Kona malt beverage products manufactured for sale in the Territory as of the Effective Date and all New Products manufactured for sale in the Territory that are added in accordance with the “Expansion of Products” section, below, but does not include any malt beverage products the manufacturing and marketing of which Kona discontinues or the distribution of which is terminated pursuant to this Agreement. As of the Effective Date, the Products include, without limitation, the products identified in Schedule 1.6.

          1.7 “Territory” means the United States of America, the District of Columbia and all states, territories and possessions of the United States of America; provided , however , that the Territory does not include the state of Hawaii.

     2.  Kona Intellectual Property .

          2.1 Grant of Licenses. Kona grants to CBAI: (a) an exclusive license, with the right to sublicense, to use Kona Intellectual Property on and in connection with the marketing and distribution of Products in the Territory; and (b) a non-exclusive license, with the right to sublicense, to use Kona Intellectual Property on and in connection with the manufacturing, marketing, and sale of Kona Merchandise in the Territory.

          2.2 Representative Samples. CBAI will, and CBAI will cause all sublicensees of CBAI to, submit to Kona for approval representative samples of any use of Kona Intellectual Property or Kona Merchandise not previously approved by Kona. Kona’s approval is required before any Kona Merchandise is used or distributed. Kona will use good faith efforts to respond to any request for approval within 14 days of receipt of the samples.

          2.3 Notice of Infringements. CBAI will promptly notify Kona of any and all infringements of Kona Intellectual Property pertaining to the Products or Kona Merchandise that may come to CBAI’s attention and shall exercise its commercially reasonable efforts to assist Kona in taking such action against said infringements as Kona, in its reasonable discretion, may decide.

          2.4 Use of Kona Intellectual Property. CBAI acknowledges that its use of Kona Intellectual Property will not create any right, title, or interest in or to Kona Intellectual Property in CBAI. CBAI may, however, sublicense to others the right to use Kona Intellectual Property for the purpose of fulfilling CBAI’s obligations under this Agreement. CBAI will not apply at any time anywhere in the world for any trademark or other intellectual property protection in its name for any products or merchandise utilizing the Kona Intellectual Property, now existing or hereafter obtained.

          2.5 Usage and Quality Control. CBAI will use Kona Intellectual Property only in connection with Products and Kona Merchandise and only in a manner consistent with accepted commercial practices in the channels of trade for the permitted uses. CBAI will not use Kona Intellectual Property in a manner that is misleading, that disparages Kona or its products, that

may be harmful to Kona’s reputation, or that may materially reduce the value of any Kona Intellectual Property. CBAI will permit representatives of Kona to inspect CBAI’s operations and products that are connected to the permitted uses upon reasonable advance notice to confirm compliance with this section.

          2.6 Ownership of Developments. Improvements and modifications to Kona Intellectual Property created by either party during the term of this Agreement shall, from the time of conception or development, be the property of Kona. CBAI hereby assigns, and agrees to take all actions necessary, as reasonably requested by Kona, to assign all such improvements and modifications. Improvements and modifications to Kona Intellectual Property do not include those portions of advertising or promotional materials that relate to other malt beverage products manufactured or distributed by CBAI.

          2.7 Representations and Warranties. Kona represents and warrants that: (a) it has the right to license Kona Intellectual Property to CBAI as provided under this Agreement; (b) the license of Kona Intellectual Property and distribution rights under this Agreement do not conflict with any agreement, judgment, or other obligation of Kona; and (c) CBAI’s use of Kona Intellectual Property in accordance with this Agreement will not violate the rights of any third person.

     3.  Distribution and Marketing .

          3.1 Kona grants to CBAI: (a) the exclusive right to market and distribute the Products in the Territory; and (b) the non-exclusive right to manufacture, package, and sell or distribute Kona Merchandise in the Territory. CBAI may delegate any of its obligations under this Agreement to ABI.

          3.2 CBAI will exercise its commercially reasonable efforts to market and distribute (either directly or indirectly through any affiliate) the Products in the Territory through ABI distributors pursuant to the ABI Distributor Agreement.

          3.3 CBAI agrees that it will not distribute, either directly or indirectly through any affiliate: (i) any malt beverage products manufactured by any brewer, other than Kona, that is headquartered in the state of Hawaii; or (ii) any brand of malt beverage products, other than the Products, for which more than 50% of the brand’s aggregate annual sales volume, by volume, is in the state of Hawaii.

     4.  Exclusivity . Except as expressly set forth to the contrary in this Agreement, during the term of this Agreement, CBAI is the exclusive distributor of Product in the Territory, with the exception of: (i) sale of Product brewed at a brewpub owned by Kona or an affiliate of Kona (but not at a brewpub owned or operated by a franchisee of any Kona affiliate) by such brewpub for on-site consumption; (ii) sale of Product at a restaurant owned or operated by Kona or an affiliate of Kona (but not at a restaurant owned or operated by a franchisee of any Kona affiliate) for on-site consumption; (iii) retail sales of kegs or growlers at a brewery, brewpub, or restaurant owned or operated by Kona or an affiliate of Kona (but not at a brewery, brewpub, or restaurant owned or operated by a franchisee of any Kona affiliate); and (iv) sale or distribution of Product by Kona or an affiliate of Kona for use in beer competitions or festivals, excluding sale or distribution of Product that is sold or re-sold to consumers at any such competition or festival.

     5.  Expansion of Products . Upon notice by Kona to CBAI, the “Products” shall include any other existing or new beverages developed by Kona (“New Products”). All New Products must comply with each of the following:

          5.1 The New Product must be a beer or ale beverage product; and

          5.2 The New Product must be of a quality that is satisfactory to CBAI together with ABI in its reasonable discretion; provided , however , that the quality will be deemed satisfactory unless such quality is substantially inferior to the Products then existing under this Agreement.

     6.  Sale of Kona Merchandise . CBAI may only sell Kona Merchandise in connection with the advertising and sale of Products, including, without limitation, sale of Kona Merchandise to pubs, taverns, restaurants, and other establishments where the Product is consumed on the premises; provided , however , that if Kona notifies CBAI in writing that a particular retail outlet sells more than $1,000 in Kona Merchandise in a calendar year, then within 30 days of CBAI’s receipt of such notice, CBAI must use commercially reasonable efforts to permit Kona to sell Kona Merchandise to such retailer or to the distributor that resells Kona Merchandise to such retailer.

     7.  Minimum Purchase Obligations .

          7.1 Each calendar year (each, a “Measurement Year”), CBAI will purchase from Kona at least an amount of Product equal to: (i) 70 percent of the number of PCEs of Product distributed by CBAI in the Territory during the calendar year prior to the Measurement Year; minus (ii) the number of PCEs of Product manufactured and distributed by CBAI during the Measurement Year for distribution in the Territory pursuant to one or more license brewing arrangements with Kona (the “Minimum Purchase Obligation”).

          7.2 If CBAI does not purchase the Minimum Purchase Obligation, then CBAI must pay Kona $1.00 per PCE for the number of PCEs by which actual purchases during the Measurement Year fell short of the Minimum Purchase Obligation. The first test of the Minimum Purchase Obligation will be conducted in January of 2010, for the 2009 Measurement Year.

          7.3 If a period for which the Minimum Purchase Obligation is calculated is less than a full calendar year, then the Minimum Purchase Obligation for such period shall be prorated based on the number of days in such period relative to the number of days in such calendar year.

     8.  Purchase Price .

          8.1 The initial purchase prices for Products manufactured by Kona (directly, or indirectly through contract brewing arrangements) are set forth on Exhibit B . On or before November 1, 2009, and each November 1 ^st thereafter, Kona will provide CBAI with any proposed changes to the Product prices for the following year. If Kona and CBAI cannot agree on the following year’s purchase price of any Product prior to December 31 ^st of a given year, or within 30 days of any other proposed price change, then, effective 6 months after the deadline for agreement, Kona may elect not to manufacture such Product or CBAI may elect not to distribute such Product; provided , however , that during the six-month wind-down period for such Product

the purchase price for such Product will be the purchase price for such Product on the deadline for agreement. CBAI must pay the purchase price within 30 days following delivery of Products. Intra-year price changes may be effected by amendment to this Agreement or a supplemental price schedule executed by CBAI and Kona. No purchase price is payable by CBAI to Kona for Products manufactured by CBAI pursuant to any license brewing arrangement with Kona.

          8.2 The parties agree to reopen price negotiations upon 30 days’ written notice from Kona to CBAI that the current price does not cover Kona’s actual cost of the Products (for example, due to increases in raw material costs, packaging costs, component costs, facility use fees, other operating expenses, and general administrativ