EXHIBIT 99.4
EXECUTION COPY
SUB-LICENSE
AGREEMENT
between
MARCAS MODELO, S.A. DE
C.V.
and
CROWN IMPORTS LLC
Dated: January 2,
2007
SUB-LICENSE
AGREEMENT
This Sub-license Agreement (“
Agreement ”), dated this 2 nd day of January, 2007, by and
between Marcas Modelo, S.A. de C.V., a sociedad anónima de
capital variable organized under the laws of Mexico (“
Marcas Modelo ”), and Crown Imports LLC, a Delaware
limited liability company (“ Importer
”).
WITNESSETH:
WHEREAS, Extrade II, S.A. de C.V. ( “Extrade
II” ) and Importer are parties to a certain Importer
Agreement, dated as of the date hereof, pursuant to which Importer
has the exclusive right 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 the Territory (as defined
below) (“ Importer Agreement ”);
WHEREAS , Marcas Modelo desires to grant to Importer and
Importer desires to obtain from Marcas Modelo an exclusive
sub-license to use the Trademarks (as defined below) within the
Territory solely in connection with the activities contemplated by
the Importer Agreement 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:
“ Barton ” means
Barton Beers, Ltd., a Maryland corporation.
“ Barton Membership
Interest ” has the meaning assigned to that term in the
Company Agreement.
“ 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.
“ 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.
“Extrade
II” means Extrade
II, S.A. de C.V., a sociedad anónima de capital variable
organized under the laws of Mexico.
“Form”
has the meaning assigned to that
term in Section 2.3 .
“ herein ” and
“ hereunder ” refer to this entire
Agreement.
“ Importer ”
means Crown Imports LLC, a Delaware limited liability
company.
“Importer
Agreement” means
the importer agreement, dated as of the date hereof, by and between
Importer and Extrade II.
“ 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.
“ 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.
“ 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.
“ 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.
“ 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 2.2,
together with the trademark rights related thereto referred to in
Section 2.8.
“West Coast Importer
Agreement” means
the importer agreement, dated as of November 22, 1996, by and
between Barton and Extrade, S.A. de C.V., 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.
(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.
(f) All amounts in this Agreement
are stated and shall be paid in United States dollars.
ARTICLE II
EXCLUSIVITY
2.1. Marcas Modelo hereby grants to
Importer during the term of this Agreement an exclusive sub-license
to use the Trademarks within the Territory, solely in connection
with the activities contemplated by the Importer Agreement; that
being the importation and sale of the Product (including sales for
resale) as well as for the purposes of advertising, promoting and
marketing the Product, creating and distributing collateral sales
and promotional materials for the Product and in connection with
other items to be provided without charge to consumers in
conjunction with the advertising, promotion and marketing of the
Product; provided, however, that with respect to promotional
materials the foregoing sub-license shall be non-exclusive. Any
such use shall be subject to the provisions of
Section 2.3 of this Agreement. Marcas Modelo represents
to Importer that Marcas Modelo has full authority and right to
grant the foregoing sub-license to Importer. For all other purposes
and uses, including promotional materials, Marcas Modelo retains
the rights to sub-license the Trademarks in the Territory. For the
purposes of this Agreement it is understood that the use by
Importer of the Trademarks in connection with advertising and
promotional material that may be accessible to persons residing
outside the Territory, such as the use on an internet site or in a
periodical that may have some distribution outside the Territory,
shall not be a violation of this Agreement provided that: a)
the
media chosen is not primarily directed to
persons residing outside the Territory or chosen with the intent of
communicating with persons residing outside the Territory as in the
case of a website with an address indicating a source in a foreign
country (e.g. .ca) or a periodical that is primarily distributed to
persons outside the Territory; and b) subject to Section 3.2
of the Importer Agreement, the Products and other services and
items offered in connection with the advertising and promotion of
the Products are not provided by Importer to persons that are not
physically within the Territory at the time in question.
2.2. In the event, during the term
of this Agreement, Marcas Modelo or any member of the Modelo Group
plans to use a new trademark on any Product to be sold in the
Territory, Marcas Modelo 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 Marcas
Modelo 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.
2.3. Importer may not use any of the
Trademarks, including but not limited to use on labels, packaging,
promotional materials, displays and in advertising and promotion,
except in a form, color, style, manner and appearance and with
surrounding content (“Form”) and in connection with
such goods or items as previously approved by Marcas Modelo as
provided below. For purposes of this Agreement, any materials
supplied by or on behalf of Marcas Modelo to Importer bearing any
of the Trademarks for use in connection with the performance of
this Agreement and the Importer Agreement and any materials
previously approved for use by Barton, including pursuant to the
West Coast Importer Agreement, the Modelo Sub-license Agreement,
and/or the Pacifico Sub-license Agreement by and between Procermex,
Inc. and Barton dated November 22, 1996, shall be deemed
approved by Marcas Modelo for ordinary use in the performance of
this Agreement and the Importer Agreement, except as provided
below. To the extent that Importer wishes to use a Trademark in a
Form or for a use other than one that has been previously approved,
it shall submit a written request to Marcas Modelo specifying the
requested new Form or use along with a sample of the use. If Marcas
Modelo approves such request in writing (such approval not to be
unreasonably withheld) Importer may commence use of the Trademark
in the Form or use requested pursuant to the terms of this
Agreement and subject to any reasonable limitations that may be
imposed by Marcas Modelo in connection with its approval. As
described above, Marcas Modelo may from time to time prescribe
reasonable changes in the approved Form or use of the Trademarks
and Importer shall comply with such changes provided that it is
either permitted a reasonable period to exhaust the existing
inventory of material that would no longer be deemed to constitute
an approved use or is otherwise compensated for any costs that it
may incur if it is not permitted to exhaust such
inventory.
2.4. The parties will cooperate and
consult in good faith to determine, on a case by case basis,
whether to register and maintain registrations for the Trademarks
or to take such other administrative action as may
