EXHIBIT 99.2
EXECUTION COPY
IMPORTER AGREEMENT
between
EXTRADE II, S.A. DE
C.V.
and
CROWN IMPORTS LLC
Dated: January 2,
2007
IMPORTER
AGREEMENT
This Importer Agreement (“
Agreement ”), dated this 2 nd day of January, 2007, by and
between Extrade II, S.A. de C.V., a sociedad anónima de
capital variable organized under the laws of Mexico (“
Extrade II ”), and Crown Imports LLC, a Delaware
limited liability company (“ Importer
”).
WITNESSETH:
WHEREAS, Extrade, S.A. de C.V. and Barton Beers, Ltd., a
Maryland corporation (“ Barton ”), are parties
to a certain Importer Agreement, dated as of November 22,
1996, and as amended subsequent thereto, pursuant to which Barton
has exclusive rights to import and sell certain beer products of
Grupo Modelo, S.A. de C. V. (“ Grupo Modelo ”)
or another member of the Modelo Group in an area in the United
States primarily west of the Mississippi River (“ West
Coast Importer Agreement ”);
WHEREAS, Diblo, S.A. de C.V. and Barton have now agreed
to establish and engage in a joint venture for the principal
purpose of importing, marketing and selling Product (as defined
below), and, in connection therewith, they have caused to be formed
the Importer which is owned by the Modelo Party (as defined below)
and Barton, and the Modelo Party and Barton are parties to a
Limited Liability Company Agreement, dated of even date herewith,
which governs the business operations of Importer;
WHEREAS , Extrade II desires to grant to Importer and
Importer desires to obtain from Extrade II the exclusive right to
sell Product within the Territory (defined below) on the terms and
conditions set forth herein;
NOW, THEREFORE
, in consideration of the promises
contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. For purposes of this Agreement,
the following terms have the meanings set forth below:
“ Adjusted JV Commencement
Price Increase ” has the meaning assigned to that term in
Section 5.2(d) .
“ Affiliate ” of
any Person means any other Person which, directly or indirectly,
controls or is controlled by that Person, or is under common
control with that Person. For purposes of this definition,
“control” (including, with correlative meaning, the
terms “controlled by” and “under common control
with”), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or
otherwise; provided, however, that for purposes of this
Agreement, Importer shall not be an Affiliate of Extrade II and
Extrade II shall not be an Affiliate of Importer.
“ Barton ” means
Barton Beers, Ltd., a Maryland corporation.
“ Barton Membership
Interest ” has the meaning assigned to that term in the
Company Agreement.
“ Base Customer Price
” means [****]
“ Base-Year ”
means the twelve (12) month period commencing on July 1,
2005, and ending on June 30, 2006.
“Base-Year
Profit ” has the
meaning assigned to that term in Section 5.2
.
“ Beer ” means
beer, ale, porter, stout, malt beverages, and any other versions or
combinations of the foregoing, including, without limitation,
non-alcoholic versions of any of the foregoing.
“ Business Plan ”
has the meaning assigned to that term in the Company
Agreement.
“ Case ” means
(1) units aggregating approximately 288 ounces (except with
respect to CORONITA in which instances such units shall aggregate
approximately 168 ounces) plus (2) their
Containers.
“ Company Agreement
” means the Amended and Restated Limited Liability Company
Agreement, dated of even date herewith, by and between the Modelo
Party and Barton, which governs the business operations of
Importer.
“ Container ”
includes the bottle, can or similar receptacle in which Product is
directly placed, and the box, carton or similar item in which such
receptacle is packaged.
“ Designated Brewery
” means the brewery at which Grupo Modelo produces the
Product for sale to Importer.
“ Diblo ” means
Diblo, S.A. de C.V., a sociedad anónima de capital variable
organized under the laws of Mexico.
“ East Coast Importation
Rights ” means the exclusive rights to import and sell
certain brands of Beer in the United States of America except for
the portion of the country included in the West Coast Importation
Rights.
“ East Coast Importer
Agreement ” means the Importer Agreement relating to the
East Coast Importation Rights.
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materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.
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“ Extrade ” means
Extrade, S.A. de C.V., a sociedad anónima de capital variable
organized under the laws of Mexico.
“ Extrade II ”
means Extrade II, S.A. de C.V., a sociedad anónima de capital
variable organized under the laws of Mexico.
“ FOB ” means
“free on board” the Designated Brewery; meaning for
purposes of this Agreement that (i) Extrade II shall bear the
expense and risk of loss of transporting Product to the Designated
Brewery and (ii) that title to Product shall pass from Extrade
II to Importer at the Designated Brewery.
“Force
Majeure” means the
inability, after giving effect to the allocation requirements of
Section 4.1 , of Extrade II to supply Product pursuant
to Article IV as a direct result of: acts of God; strikes or
other labor unrest; civil disorder; fire; explosion; perils of the
sea; flood; drought; war; riots; sabotage; terrorism; accident;
embargo; priority, requisition or allocation mandated by
governmental action; changes in laws or regulations that impair the
Production or export of Beer into the Territory; shortage or
failure of supply of ingredients or raw materials necessary to
produce Product; or other cause beyond control of Extrade II or the
Modelo Group. The duration of any Force Majeure occurrence is
limited to the period during which Extrade II is unable to supply
Product, or make reasonable alternative arrangements to supply
Product, due of the event or condition giving rise to such Force
Majeure occurrence.
“ herein ” and
“ hereunder ” refer to this entire
Agreement.
“ Importer ”
means Crown Imports LLC, a Delaware limited liability
company.
“ JV Commencement Price
Increase ” has the meaning assigned to that term in
Section 5.2 .
“ law ”, unless
otherwise expressly stated in this Agreement, includes statutes,
regulations, decrees, ordinances and other governmental
requirements, whether federal, state, local or of other
authority.
“Marcas
Modelo” means
Marcas Modelo, S.A. de C.V., a sociedad anónima de capital
variable organized under the laws of Mexico.
“ Modelo Group ”
means Grupo Modelo and all Persons that, now or in the future, are
related to Grupo Modelo by virtue of Grupo Modelo’s direct or
indirect share ownership; provided, however, that for purposes of
this Agreement, Importer shall not be a member of the Modelo
Group.
“ Modelo Party ”
means GModelo Corporation.
“Pass-Through
Revenues” means
[****]
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materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.
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“ Person ” means
any individual, corporation, partnership, limited partnership,
limited liability company, joint venture, syndicate, sole
proprietorship, a company with or without share capital,
unincorporated association, trust, trustee, executor, administrator
or other legal representative, regulatory body or agency,
government or governmental agency, authority or entity, however
designated or constituted.
“ Price ” has the
meaning assigned to that term in Section 5.1
.
“ Price Adjustment
” has the meaning assigned to that term in
Section 5.4 .
“ Product ” means
(i) Beer packaged in Containers bearing one or more of the
Trademarks, or (ii) any other Beer, whether or not bearing one
or more Trademarks, which is produced, marketed or sold by Grupo
Modelo or any member of the Modelo Group in or into the Territory
during the term of this Agreement.
“ Production ”
means the manufacturing, bottling and packaging of Beer.
“Strategic Pricing
Initiative” has the
meaning assigned to that term in the Company Agreement.
“Sub-license
Agreement” means
the Sub-license Agreement dated as of the date hereof by and
between Importer and Marcas Modelo.
“ Territory ”
means the fifty states of the United States of America, the
District of Columbia and Guam.
“ Trademarks ”
means the trademarks described in Exhibit A to this
Agreement as belonging to a member of the Modelo Group, as such
Exhibit may be supplemented from time to time pursuant to
Section 3.4 , together with the trademark rights
related thereto referred to in Section 2.8 of the
Sub-license Agreement.
“West Coast Importation
Rights” means all
of Barton’s rights to import Beer under the West Coast
Importer Agreement.
“West Coast Importer
Agreement” means
the Importer Agreement, dated as of November 22, 1996, by and
between Barton and Extrade, as amended.
1.2. Construction
(a) Unless the context of this
Agreement otherwise requires, (i) words of any gender include
each other gender; (ii) words using the singular or plural
number also include the plural or singular number, respectively;
(iii) the terms “hereof,” “herein,”
“hereby” and derivative or similar words refer to this
entire Agreement; (iv) the terms “Article”,
“Section”, “Schedule” or
“Exhibit” refer to the specified Article, Section,
Schedule or Exhibit of this Agreement, unless otherwise
specifically stated; (v) the words “include” or
“including” shall mean “include, without
limitation” or “including, without limitation;”
and (vi) the word “or” shall be disjunctive but
not exclusive.
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(b) References to agreements and
other documents shall be deemed to include all subsequent
amendments and other modifications thereto.
(c) References to statutes shall
include all regulations promulgated thereunder and, except to the
extent specifically provided below, references to statutes or
regulations shall be construed as including all statutory and
regulatory provisions consolidating, amending or replacing the
statute or regulation.
(d) The language used in this
Agreement shall be deemed to be the language chosen by the parties
to express their mutual intent, and no rule of strict construction
shall be applied against any party. This Agreement is the joint
drafting product of the parties hereto and each provision has been
subject to negotiation and agreement and shall not be construed for
or against any party as drafter thereof.
(e) All accounting terms used herein
and not expressly defined herein shall have the meanings given to
them under GAAP.
(f) All amounts in this Agreement
are stated and shall be paid in United States dollars.
ARTICLE II
CERTAIN UNDERTAKINGS OF
MODELO
Extrade II represents and warrants
that (a) Extrade II has and will maintain throughout the term
of this Agreement the exclusive right to sell Product for export to
the Territory; (b) there is not in effect any agreement
between Extrade II and any other person or entity giving any right
to any such other person or entity to sell Product in the
Territory; and (c) Extrade II has the full contractual and
corporate power and authority to perform its obligations under this
Agreement.
ARTICLE III
EXCLUSIVITY
3.1. Subject to the terms of this
Agreement, Extrade II hereby grants to Importer the exclusive right
to sell Product within the Territory, including for
resale.
3.2. Importer agrees not to sell
Product outside the Territory except with the prior written
permission of Extrade II. Importer shall use its commercially
reasonable efforts to prevent parties purchasing Product directly
or indirectly from Importer from reselling such Product outside the
Territory or in any manner not authorized by this
Agreement.
3.3. Importer agrees that, during
the term of this Agreement, Importer shall not, without Extrade
II’s prior written permission, purchase or sell in the
Territory any Beer manufactured in Mexico other than
Product.
3.4. (a) In the event, during the
term of this Agreement, Extrade II or any member of the Modelo
Group plans to initiate a program for the production, marketing or
sale in or into the Territory of any Product for which pricing is
not set forth on Exhibit B , Extrade II shall give Importer
written notice of such plan not less than ninety (90) days
before such program is
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initiated. At the written election of Importer
delivered to Extrade II within ninety (90) days after receipt
by Importer of such notice, the parties shall amend this Agreement
to add pricing for such Product to the list on Exhibit B ,
to add the identifying mark or marks to Exhibit A , to
modify the definition of “Case” in Article
I accordingly, and/or to add a new definition to Article
I that describes the unit packaging of such Product if it is
not a Case, such as keg or mini-keg, and to also modify the
definition of “Container” in Article I
accordingly. Extrade II represents and warrants that it has and
will maintain throughout the term of this Agreement the exclusive
right to sell such Product for export to the Territory.
(b) In the event, during the term of
this Agreement, Extrade II or any member of the Modelo Group plans
to use a new trademark on any Product to be sold in the Territory,
Extrade II shall give Importer written notice of such plan not less
than ninety (90) days before implementation thereof. At the
written election of Importer delivered to Extrade II within ninety
(90) days of the receipt by Importer of such notice, the
parties shall amend this Agreement to add such new trademark to
Exhibit A .
ARTICLE IV
SUPPLY OF PRODUCT
LINE
4.1. Importer shall purchase from
Extrade II, and Extrade II shall supply to Importer, such volumes
of Product as are required by Importer for importation and sale
within the Territory pursuant to this Agreement. [****]
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materials omitted and filed separately with the Securities and
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4.2. All orders for Product under
this Agreement shall be made by Importer specifying the type of
Product ordered and the quantities thereof. Subject to
Section 4.1 and Force Majeure, each such order shall
constitute a binding obligation between Importer and Extrade II in
accordance with the terms of this Agreement five (5) days
after receipt thereof by Extrade II on the terms of the order,
subject to modifications that the parties agree to within such
five-day period.
4.3. EXCEPT AS STATED IN THIS
AGREEMENT, EXTRADE II MAKES NO WARRANTY, EXPRESS OR IMPLIED,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, CONCERNING PRODUCT.
4.4. Extrade II will supply Product
to Importer FOB the Designated Brewery (whether rail or other
transportation as requested by Importer). [****]
4.5. [****]
4.6. All terms and conditions set
forth on any order shall be of no force and effect, other than the
type of Product ordered, the quantities ordered and the mode of
transportation if other than rail.
4.7. Anything in
Section 4.2 to the contrary notwithstanding, in the
event of any conflict between the provisions of any order and the
provisions of this Agreement (including without limitation terms of
payment and warranties concerning Product), the provisions of this
Agreement shall govern.
4.8. [****]
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ARTICLE V
PRICING AND PAYMENT
PROCEDURES
5.1. As to each Product,
th