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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 be appropriate to attempt to record or
register Marcas Modelo’s rights in the Trademarks in the
Territory. Importer shall from time to time, as soon as reasonably
possible after learning of the facts or law relating thereto,
notify Marcas Modelo of any Federal, state, local or other filing
(included but not limited to any applications for, or renewals of,
any trademarks or similar registrations) that Importer considers to
be necessary, appropriate or advisable to protect the Trademarks or
other ownership
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