EXHIBIT 10.48
AMENDED AND RESTATED MANUFACTURING AND LICENSING
AGREEMENT
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By:
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Widmer Brothers Brewing Company, an
Oregon corporation (“Widmer”) |
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929 N. Russell |
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Portland, Oregon 97227 |
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and:
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Redhook Ale Brewery Incorporated, a
Washington corporation (“Redhook”) |
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14300 NE 145th Street |
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Woodinville, Washington 98072 |
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Date:
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February 27, 2008 |
This
Amended and Restated Manufacturing and Licensing Agreement (the
“Agreement”) is entered into by and between Widmer and
Redhook as of the date first set forth above.
BACKGROUND
A. This Agreement amends and
restates in its entirety that certain Manufacturing and Licensing
Agreement dated August 28, 2006, as amended by Amendment
No. 1 thereto, dated December 31, 2006 and Amendment
No. 2 thereto dated December 31, 2007. The parties desire
to enter into this Agreement so that all the terms of their
agreement with respect to the subject matter described herein are
contained in one document.
B. Widmer is in the business of
manufacturing, advertising, marketing, selling, and distributing
Widmer brand products set forth in Exhibit A (“Widmer
Products”).
C. Redhook has a manufacturing
facility in Woodinville, Washington (the “Redhook
Facility”) and is in the business of manufacturing, bottling,
and packaging beer products at the Redhook Facility.
D. Widmer and Redhook desire for
Redhook to manufacture, bottle, and package certain Widmer Products
at the Redhook Facility.
E. In order for Redhook to
manufacture, bottle, and package Widmer Products at the Redhook
Facility, Redhook must amend its federal brewers notice with the
Alcohol and Tobacco Tax and Trade Bureau of the Department of the
Treasury (the “TTB”) and register in the state of
Washington as a tradename Widmer’s tradename: WIDMER BROTHERS
BREWING COMPANY.
F. This Agreement is not
intended to modify the rights and obligations of the parties under
that certain Licensing Agreement between Redhook and Widmer dated
February 1, 2003, or the Supply, Distribution and Licensing
Agreement between Redhook and Craft Brands Alliance, LLC dated
July 1, 2004 (the “CBA Agreement”).
AGREEMENT
Based on the mutual promises set
forth below and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, Widmer and Redhook
hereby agree as follows:
1.
Right to Manufacture .
1.1 Subject to the terms and
conditions of this Agreement, Widmer hereby grants Redhook the
right to manufacture, bottle, and package Widmer Products at the
Redhook Facility. Redhook agrees to manufacture, bottle, and
package Widmer Products of the brands identified on Exhibit A
and in the volumes requested by Widmer. Except as set forth herein,
Redhook’s right to manufacture Widmer Products does not limit
or extinguish Widmer’s right to manufacture any and all
Widmer Products, either now existing or produced in the
future.
1.2 Widmer shall reimburse Redhook
for all capital expenditures necessary for Redhook to manufacture,
bottle, and package Widmer Products at the Redhook Facility, but
only to the extent the types and amounts of such capital
expenditures are previously approved by Widmer in writing.
1.3 Widmer may add to now existing
Widmer Products and may request Redhook to manufacture such
products at the Redhook Facility. If Widmer elects to add a new
Widmer Product, Widmer shall at its expense develop all
Intellectual Property related to such Widmer Product. All such
Intellectual Property shall be the property of Widmer pursuant to
Section 4.2 of this Agreement and licensed to Redhook under
the terms of this Agreement.
1.4 At least thirty (30) days
prior to the beginning of each calendar quarter, Widmer will
provide Redhook with a three-month rolling forecast (each, a
“Three-Month Forecast”) of the quantity and type of
each Widmer Product Widmer expects to purchase during such
three-month period (each a “3-Month Forecasted
Quantity”). Within ten (10) days following
Redhook’s receipt of each Three-Month Forecast, Redhook will
notify Widmer (i) if it is unwilling or unable to manufacture
at least 110% of the 3-Month Forecasted Quantity (the
“Required Redhook Quantity”) and (ii) the quantity
of Widmer Products it is willing and able to manufacture (the
“Promised Redhook Quantity”) if such quantity is less
than the Required Widmer Quantity. If Redhook does not so notify
Widmer, it will be presumed that Redhook is willing and able to
manufacture at least the Required Redhook Quantity.
1.5 Widmer may, from time to time
require changes to Intellectual Property, packaging, or any other
change in connection with Widmer Products upon 180 days’
prior written notice to Redhook. The direct out-of-pocket costs for
all such changes will be paid by Widmer. If Widmer requires any
change to the Intellectual Property or packaging that requires
capital expenditures by Redhook, Widmer shall reimburse Redhook for
such expenditures.
1.6 If Widmer requires any change to
Widmer Products that increases Redhook’s variable cost to
manufacture, bottle, or package Widmer Products, the price for such
Widmer Products shall be increased by such estimated additional
incremental cost if (a) within thirty (30) days following
the date Widmer requests such change Redhook notifies Widmer of the
increased incremental cost, providing reasonable supporting
documentation, and (b) Widmer
thereafter elects for Redhook to manufacture such Widmer Products.
Widmer may, upon notice to Redhook, audit Redhook’s books and
records to the extent necessary to confirm such increased variable
costs.
1.7 The price for the Widmer products
shall be as set forth on Exhibit B, attached hereto. Prices
will be F.O.B. Redhook Facility. Widmer shall pay for all Widmer
Products ordered hereunder within 30 days following
Widmer’s receipt of Redhook’s invoice describing the
Widmer Products delivered.
1.8 This Agreement does not amend or
modify the CBA Agreement, including, without limitation,
Redhook’s option to manufacture Widmer Products pursuant to
Section 4.2.2 of the CBA Agreement. Any Widmer Products
manufactured by Redhook pursuant to its option under
Section 4.2.2 of the CBA Agreement shall continue to be
governed by the terms of the CBA Agreement.
2.
Grant of License . Upon the terms and conditions hereinafter
set forth, Widmer hereby grants to Redhook, and Redhook hereby
accepts a non-exclusive, non-transferable license to use the
intellectual property set forth on Exhibit C, in addition to
any other trade secret, trademark, tradedress, copyright, patent,
or other distinctive feature in or related to Widmer Products
(collectively, the “Intellectual Property”), solely for
the purposes of manufacturing, bottling, and packaging Widmer
Products at the Redhook Facility. Redhook shall not use
Intellectual Property in connection with any other purpose other
than those listed without Widmer’s prior written consent.
Without limiting the foregoing, Widmer grants Redhook a license to
place the phrase “Widmer Brothers Brewing Company —
Portland, OR — Woodinville, WA” on the label of Widmer
Products.
3.
Quality Control.
3.1 The objective of Section 3
is to ensure Redhook recognizes and maintains the value of the
goodwill associated with the Intellectual Property licensed and
agrees that any use of Intellectual Property shall inure to the
benefit of Widmer.
3.2 Each of the Widmer Products
manufactured by Redhook will conform to the specification, recipe,
and quality control requirements attached on Schedule 3.2. For
any new Widmer Product, Redhook shall conform to the specification,
recipe, and quality control requirements as reasonably determined
and provided to Redhook by Widmer.
3.3 Widmer Products manufactured,
bottled, and packaged by Redhook at the Redhook Facility shall not
be adulterated, contaminated, or otherwise of a quality that is
below average quality of Widmer Products manufactured, bottled, and
packaged by Widmer in its Portland, Oregon facility, which may
include, without limitation, (i) apparent defects in taste or
appearance in excess of typical age-related changes;
(ii) microbiological contamination or other contamination such
as carryover of cleaning chemicals or foreign object inclusions;
and (iii) defective bottling or packaging.
3.4 Information regarding the process
conditions, quality control procedures, equipment and materials
required to manufacture, bottle, or package Widmer Products will be
provided by Widmer to Redhook (the “Formula”). Redhook
understands and agrees that changes
in the
Formula may be required by Widmer from time to time. Redhook shall
use all necessary ability, know-how, methods, and means to brew,
handle, package, and store Widmer Products strictly in accordance
with the Formula. No change in the Formula shall be made by Redhook
without Widmer’s prior written consent.
3.5 Widmer shall have the right to
inspect and approve the Redhook Facility and equipment used by
Redhook to brew, handle, package, and store Widmer Products, as
well as any ingredients, processing aids, and containers used in
brewing or packaging Widmer Products; and to taste samples of
Widmer Products at the Redhook Facility. At Widmer’s request,
Redhook shall provide to Widmer at the address set forth above, at
Redhook’s cost, samples of (a) Widmer Products
manufactured or packaged by Redhook and (b) brewing and
packaging materials. Redhook shall bear the cost of shipment for
said samples. If at any point during the term of this Agreement,
Widmer determines quality of Widmer Products manufactured, bottled,
or packaged at the Redhook Facility is below average quality of
Widmer Products manufactured, bottled, or packaged by Widmer in its
Portland, Oregon facility, Widmer may terminate this Agreement upon
30 days written notice to Redhook, provided that, during the
30-day period, Redhook fails to cure such deficiency.
4.
Rights in Intellectual Property .
4.1 Intellectual Property .
Redhook acknowledges that its use of the Intellectual Property
shall not create any right, title, or interest in or to the
Intellectual Property of Widmer. Redhook may, however, sublicense
others the right to use the Intellectual Property solely for the
purpose of fulfilling Redhook’s obligations under this
Agreement. Redhook shall not apply at any time anywhere in the
world for any trademark or other intellectual property protection
in its name, other than expressly provided herein, without
Widmer’s prior written consent.
4.2 Improvements; Ownership .
Improvements and modifications to the Intellectual Property created
by either party during the term of this Agreement shall, from the
time of conception or development, be the property of Widmer.
Improvements and modifications to the Redhook Facility (to the
extent they do not include Intellectual Property) for the purpose
of manufacturing, bottling, and packaging Widmer Products shall
remain the property of Redhook.
4.3 Representations and
Warranties . Widmer represents and warrants that (a) it
has the right to license the Intellectual Property to Redhook as
provided under this Agreement; (b) the license of the
Intellectual Property and distribution rights under this Agreement
do not conflict with any agreement, judgment, or other obligation
of Widmer; and (c) Redhook’s use of the Intellectual
Property hereunder will not violate the rights of any third person.
Widmer shall indemnify and hold Redhook and its affiliates,
successors, and assigns harmless from and against any and all
charges, actions, and proceedings (including investigations)
resulting from Widmer’s breach of such representations and
warranties.
4.4 Notices . Redhook agrees
that Widmer Products and Intellectual Property shall bear
appropriate proprietary legends or notices as specified by Widmer
from time to time.
5.
Infringement .
5.1 Infringement By Third
Parties . Redhook shall notify Widmer promptly in writing of
any suspected infringement or unauthorized use of the Intellectual
Property by third parties that may come to its attention. If Widmer
shall elect, in its sole discretion to enjoin or prevent such
infringement or unauthorized use, Redhook shall cooperate with
Widmer, provided Widmer shall pay any out-of-pocket expenses
incurred by Redhook in connection therewith. If Widmer at its own
expense files and is successful in infringement litigation or
settlement, then Widmer shall be entitled exclusively to any
amounts recovered.
5.2 Infringement By Redhook .
Redhook shall notify
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