EXHIBIT 10.47
[ * ] DENOTES EXPURGATED INFORMATION
PRODUCTION AGREEMENT
BETWEEN
SAMUEL ADAMS BREWERY COMPANY, LTD.
AND
BROWN-FORMAN DISTILLERY COMPANY
THIS AGREEMENT ("Agreement"), effective as of the 11th day of April, 2005
(the "Effective Date"), by and between Samuel Adams Brewery Company, Ltd., an
Ohio limited liability company with a principal place of business at 1625
Central Parkway, Cincinnati, OH 45214 ("SABC"), and Brown-Forman Distillery
Company, a division of Brown-Forman Corporation, a Delaware corporation with a
principal place of business at 850 Dixie Highway, Louisville, KY 40210
("Brown-Forman").
WHEREAS, SABC has the capacity to provide fermented malt liquid for use as
a base in the production of a clear malt base;
WHEREAS, Brown-Forman has a design for technology to "cleanse" such liquid
to create a clear malt base; and
WHEREAS, the parties wish to enter into an arrangement whereby SABC will
provide the fermented malt liquid for processing using Brown-Forman's technology
to produce clear malt base for use by SABC and for sale to Brown-Forman;
ACCORDINGLY, for and in consideration of the mutual agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound, hereby agree as follows:
1. SCOPE OF AGREEMENT; COMMITTED CAPACITY.
(a) COMMITMENT. During the Term of this Agreement, upon the purchase
and installation at the Brewery of the ISEP and the fermentation and storage
tanks required to meet the Production Capacity as set forth in Section 8 of this
Agreement, SABC will ferment and process Product at the Brewery and will sell
and ship in bulk container trucks Base2 to Brown-Forman; and Brown-Forman will
purchase Base2 from SABC, all in accordance with and subject to the terms and
conditions set forth herein.
(b) DEFINITIONS. For purposes of the Agreement, the following terms
shall have the respective meanings ascribed to them:
"BARREL" means 31 U.S. gallons (3,968 ounces).
"BASE1" means fermented liquid malt beverage developed by SABC
designed to be used with ISEP.
"BASE2" means clear malt beverage resulting from the processing of
Base1 through ISEP.
"BREWERY" means SABC's brewery located in Cincinnati, Ohio.
"FERMENTING CAPACITY" means the number of tanks used for fermenting
Base1 necessary to meet the Base2 production requirements of Brown-Forman.
"FERMENTING INGREDIENTS" means all materials, ingredients and
processing aids needed for the production of Base1.
[ * ] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
"INCREMENTAL EFFLUENT COSTS" means the cost to SABC of processing
effluent resulting from production of Base2 from Base 1.
"ISEP" means equipment that contains the malt beverage cleaning
technology developed by Brown-Forman.
"ISEP MATERIALS" means all materials, ingredients, re-agents and
processing aids needed for the operation of ISEP and the production of
Base2.
"ISEP OPERATING COSTS" means all direct costs associated with the
operation and running of ISEP, including energy costs, direct operating
labor and labor overhead, maintenance and repair costs, and regeneration
costs of ISP re-agents.
"PRODUCT" means the Base2 produced for Brown-Forman.
"PRODUCTION CAPACITY" means the monthly functional output capacity
of ISEP on a 156 hour per week schedule.
"STORAGE CAPACITY" means the number of tanks used to receive and
hold Base2 necessary to meet the Base2 production requirements of
Brown-Forman.
(c) COMMITTED CAPACITY. Upon the purchase and installation of the
equipment in accordance with Section 8 of this Agreement, SABC shall provide
Brown-Forman [ * ] of Production Capacity. The Parties shall use their best
efforts to share the allocation of the Production Capacity in order to meet the
seasonal demands of both parties.
(d) CHANGE IN LOCATION. SABC may, at its sole option, meet its
production obligations hereunder at another brewery owned by SABC or by an
affiliate, except that Brown Forman's net delivered cost from the new facility
shall be no higher than if the Base2 had been supplied from the Brewery in
Cincinnati. SABC shall bear all costs of movement of the equipment necessary to
produce Base2, including the ISEP, and shall reimburse Brown-Forman for its
incremental shipping costs from the new location, if any. SABC shall use
commercially reasonable efforts to ensure that there is no material disruption
in production of Base2 as a result of such change in location.
2. PRICE AND MANNER OF PAYMENT.
(a) Except as otherwise provided in this Agreement, Brown-Forman
shall purchase the Product from SABC for an amount (the "Price") equal to [ * ]
per Barrel. In addition, Brown-Forman will pay for [ * ] used for the production
of the volume of Base1 required to produce the volume of Base2 ordered by
Brown-Forman. Further, Brown-Forman will pay for [ * ], except that Brown-Forman
will not be responsible for costs associated with production losses that are not
normal and customary for production of this nature. [ * ] will be purchased by
SABC and billed to Brown-Forman [ * ].
(b) Prices are F.O.B. the carrier's trucks at the Brewery's docks
(i.e., the Price includes the cost and risk of loading trucks at SABC's dock).
(c) On the date the Product is shipped, SABC will invoice
Brown-Forman for the Price and all federal, state and local excise taxes
attributable to the Product that are paid by SABC. SABC will invoice
Brown-Forman for [ * ] incurred by SABC in the production of the Product ordered
by Brown-Forman [ * ] when the Product is shipped (with monthly reconciliation
to reflect SABC's actual cost). SABC may, upon at least ten (10) days prior
written notice, adjust [ * ]. All invoices will be sent to Brown-Forman
electronically and Brown-Forman will pay [ * ] by electronic funds transfer all
timely invoices that relate to shipments of the Product made by SABC during the
previous week.
[ * ] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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(d) SABC may designate an affiliate organization to process
invoicing and receive such payments.
3. TERM.
The Initial Term of this Agreement shall commence on the Effective Date
and, absent earlier termination pursuant to Section 9 hereof, it shall expire on
[ * ]. [ * ] Notice of intent to not renew this Agreement after the Initial Term
shall be provided as set forth in Section 9(c).
4. MINIMUM ORDERS.
(a) ANNUAL FORECASTS. Upon the execution of this Agreement and on or
before each October 1 thereafter during the term of the Agreement, Brown-Forman
shall provide SABC with a forecast for its aggregate volume requirements by
month for the following calendar year (the "Annual Forecast"). The Annual
Forecast for calendar year 2005 is attached as SCHEDULE 1 hereto. The Annual
Forecast may not, without the approval of SABC, include any month where the
volume exceeds [ * ] of the Production Capacity.
(b) PRODUCTION PLAN. On a weekly basis, Brown-Forman shall provide
SABC with a 12-week Production Plan for the Product (the "Production Plan"). The
Production Plan shall be a rolling 12-week schedule setting forth requirements
for the Product for each week during the twelve (12) weeks covered by the
Production Plan. All requirements for the Product during the first six (6) weeks
of the Production Plan shall constitute firm orders by Brown-Forman. All
requirements for the Product during the remaining six weeks of the Production
Plan shall be a forecast of Brown-Forman's best estimate of requirements for the
Product and shall be used by SABC for capacity planning purposes. Brown-Forman
shall update the Production Plan each week by providing its best estimate of
requirements for the twelfth week and by revising the schedule for brewing and
packaging requirements in the seventh through eleventh weeks of the Production
Plan The batch size that Brown-Forman shall utilize in the Production Plan shall
be SABC's maximum batch based on the size of the tanks in the Fermenting
Capacity and Storage Capacity. SABC will have no obligation to accept a
Production Plan that exceeds [ * ] of the Production Capacity nor that exceeds
the capacity of the Fermenting Capacity or the Storage Capacity.
(c) SHIPPING SCHEDULE. Brown-Forman shall place all orders for the
Product by the fifith business day of each month (the "Shipping Schedule"). The
Shipping Schedule shall set forth the quantity of the Product and the day and
week in which each order shall be shipped in the following month. If the
Shipping Schedule is not sufficient to allow the Storage Capacity or
Fermentation Capacity to be emptied in a timely manner, SABC shall not be
required to produce the Production Forecast for Brown-Forman, until sufficient
orders are placed and shipped and Fermenting Capacity and Storage Capacity
become available. SABC will provide notice to Brown Forman prior to the
cessation of production for this reason.
(d) MINIMUM PURCHASE REQUIREMENT.
(i) [ * ].
(ii) [ * ].
5. RISK OF LOSS.
Brown-Forman shall have sole responsibility for selecting carriers
and making all arrangements for shipment of the Product from the Brewery, except
that SABC shall be responsible for the actual scheduling of the carriers on a
day-to-day basis. Brown-Forman shall be responsible for any
[ * ] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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costs associated with its carrier failing to meet SABC's pick-up time
guidelines. Brown-Forman shall pay for all costs associated with shipment of the
Product from the Brewery. SABC and Brown-Forman each acknowledge and agree that,
consistent with the F.O.B. pricing terms, the risk of loss in loading the
carrier's trucks shall be borne by SABC. However, the carrier's driver shall
have the right to inspect each shipment for damage prior to leaving the loading
dock and, accordingly, Brown Forman shall bear the risk of loss on any shipment
of Product once the carrier's truck leaves the loading dock.
6. BREWERY OF RECORD
(a) SABC shall provide all Product produced hereunder under such
trade name(s) specified by Brown-Forman as the Brewery of Record, provided that
Brown-Forman secure and maintain such permits, licenses, approvals and the like
required by any federal, state or local governmental agency with respect related
to such production. SABC shall work cooperatively with Brown-Forman to secure
such permits and licenses, and Brown-Forman shall reimburse SABC promptly for
any out-of-pocket costs, including, without limitation, legal expenses, incurred
in connection therewith.
(b) SABC and Brown-Forman shall maintain an alternating
proprietorship whereby the Product is produced at the Brewery under a Brewer's
Notice for such premises issued to Brown-Forman. SABC shall maintain separate
records for the Product produced under the Brown-Forman alternating
proprietorship and shall provide Brown-Forman in a timely manner with such
information and documentation as may be required by Brown-Forman so that it can
file monthly reports and federal excise tax returns in a timely manner.
Brown-Forman will pay SABC its out-of-pocket costs, including, without
limitation legal expenses, incurred in connection with maintaining the
Brown-Forman alternating proprietorship.
7. FORCE MAJEURE.
(a) Neither party shall be liable for failure to perform any
obligation of this Agreement which may arise as a result of any present or
future statute, law, ordinance, regulation, order, judgment or decree, failure
to obtain required permits, licenses or approvals, any weather related or
natural disaster, explosion, lockout, boycott, strike, riot, war or similar
occurrence. Notwithstanding the foregoing, Brown-Forman's obligation to make
payments to SABC for capital investments made by SABC under Section 8 and
Section 9(a) below prior to a force majeure event shall be unaffected by the
force majeure event and remain in full force and effect.
(b) The party claiming to be so affected shall promptly give notice
to the other party after it learns of the occurrence of said event and any delay
or failure shall not be excused unless such notice is given.
8. CAPITAL INVESTMENTS, EXPANSIONS AND MODIFICATIONS.
(a) ISEP Investments. Within [ * ] after the Effective Date, SABC
will initiate the purchase and installation of the ISEP at the Brewery with a
rated Production Capacity of at least [ * ]. Brown-Forman shall reimburse SABC
for [ * ] of the such amount paid by SABC for such purchase and installation,
plus interest at the annual rate of [ * ]. Brown-Forman shall pay SABC such
amount in [ * ] equal installments on or before [ * ] of each of the first [ * ]
years of the Initial Term, except that the first installment shall be due and
payable on the initial commissioning of ISEP. Brown-Forman may prepay the amount
owed pursuant to this Section 8(a) without penalty. [ * ].
(b) Fermentation and Storage Tanks. SABC shall purchase and install
such fermentation and storage tanks, process piping and related equipment that
shall be required to produce the Product to be purchased by Brown-Forman as more
fully set forth on Schedule 3 attached hereto
[ * ] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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(the Fermentation Capacity and Storage Capacity). Brown-Forman shall
reimburse SABC for [ * ] such amount paid by SABC for such purchase and
installation, plus interest at the annual rate of [ * ]. Brown-Forman
shall pay SABC such amount in [ * ] equal installments on or before [ * ]
of each of the first [ * ] years of the Initial Term, except that the
first installment shall be due and payable on the initial commissioning of
ISEP. Brown-Forman may prepay the amount owed pursuant to this Section
8(b) without penalty. [ * ]. Such reimbursement for fermentation and
storage tanks is to provide adequate capacity at the Brewery to meet the
production requirements to fulfill Brown-Forman orders, but does not give
Brown-Forman any ownership rights or control over the use of such tanks.
(c) Brown-Forman shall reimburse SABC for any modifications it
must make to the Brewery or its equipment necessary for the safe loading
of Base2 on to tanker trucks for shipment. Such payment shall be made
within thirty (30) days of receipt of an invoice therefore from SABC.
Brown-Forman may prepay the amount owed pursuant to this Section 8(b)
without penalty.
(d) SCHEDULE 2 attached hereto sets forth the anticipated
costs for the equipment and brewery modifications described in subsections
(a), (b) and (c) above and is hereby incorporated herein by this
reference.
(e) Either party may, at its own expense, expand the
Production Capacity of ISEP and, unless otherwise mutually agreed to, the
party funding the expansion shall have the sole right to the additional
Production Capacity resulting from such additional investment during the
term of this Agreement.
(f) The parties anticipate the ISEP may from time to time,
require upgrades and modifications to remain in good working order. The
parties shall work together in good faith to consult on and agree to such
investments and shall divide the costs of such upgrades and modifications
equally, unless otherwise agreed to in writing prior to making the
investment.
(g) Except as otherwise provided to the contrary in Section
9(c)(i), SABC in all events shall retain all right, title and interest in
and to the equipment purchased and brewery modifications made pursuant to
this Section 8.
9. TERMINATION.
(a) During the Initial Term, Brown-Forman may terminate this
Agreement at any time effective no less than [ * ] after delivery of
written notice to SABC. If the effective date of such termination is on or
prior to [ * ], Brown-Forman will pay to SABC on or before the termination
effective date the remaining balance due to SABC under Section 8 above and
shall have no rights of recoupment with respect to any moneys paid prior
to such termination date. Upon such termination effective date, SABC will
have the right to all of the Production Capacity.
(b) SABC may not terminate the Agreement effective prior to
[ * ] except in the event of a Brown-Forman default as set forth in
subsections (d) or (e) below.
(c) Either party may terminate this Agreement [ * ] prior
written notice, such notice to be effective no earlier than [ * ].
(i) If SABC terminates this Agreement under this subsection
(c), it will, at Brown-Forman's request, assign all right, title and interest in
and to the ISEP to Brown-Forman for no additional consideration. SABC will
decommission, remove, make ready for and load onto trucks the ISEP from the
Brewery and make it available for pick-up by Brown-Forman. SABC, at its option,
may purchase from Brown-Forman some or all of the fermentation and storage tanks
paid for by Brown-Forman at the net book value
[ * ] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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thereof based on a [ * ] straight line depreciation. SABC, at Brown-Forman's
request, shall make those tanks not purchased so by SABC available for pick-up
by Brown-Forman at the Brewery.
(ii) If Brown-Forman terminates this Agreement under this
subsection (c) above, SABC, at its option, may retain any or all of the
equipment paid for by Brown-Forman pursuant to this Agreement, including its
investments made in the ISEP and fermentation and storage tanks as set forth in
Section 8 above, and Brown-Forman would no longer have any rights to Production
Capacity. If, at such time, the ISEP technology is proprietary to Brown-Forman,
Brown-Forman shall grant an unlimited, non-exclusive license to SABC for the use
of the ISEP in accordance with the terms and conditions of this Agreement at no
cost to SABC. If such technology is not deemed to be proprietary to
Brown-Forman, Brown-Forman shall not interfere with SABC's use of the ISEP in
accordance with the terms and conditions of this Agreement and shall relinquish
any claims that it may have to the ISEP.
(d) In the event that Brown-Forman fails to meet its Minimum
Purchase Requirement as set forth in Section 4(d)(ii) above, SABC may
terminate this Agreement upon [ * ] prior written notice, and, at its
option, may retain any or all of the equipment paid for by Brown-Forman
pursuant to this Agreement, including its investments made in the ISEP and
fermentation and storage tanks as set forth in Section 8 above, and
Brown-Forman would no longer have any rights to Production Capacity. If,
at such time, the ISEP technology is proprietary to Brown-Forman,
Brown-Forman shall grant an unlimited, non-exclusive license to SABC for
the use of the ISEP in accordance with the terms and conditions of this
Agreement at no cost to SABC. If such technology is not deemed to be
proprietary to Brown-Forman, Brown-Forman shall not interfere with SABC's
use of the ISEP in accordance with the terms and conditions of this
Agreement and shall relinquish any claims that it may have to the ISEP.
(e) In addition to exercising its rights under Section 22
hereof, either party may terminate this Agreement effective immediately
upon written notice to the other party in the event that the other party
is in default of any of its payment obligations under this Agreement which
default continues for a period of [ * ] following receipt of written
notice of such default or (ii) of any of its other obligations under this
Agreement [ * ] after receipt of notice of default to correct the breach,
except that if the defaulting party can demonstrate its continuing best
efforts to cure such breach, it shall then have up to [ * ] to do so.
(f) Either party may terminate this Agreement effective
immediately upon written notice to the other Party in the event that: (i)
the other party makes an assignment for the benefit of creditors or files
a voluntary bankruptcy, insolvency, reorganization or similar petition
seeking protection from creditors; (ii) the other party fails to vacate
any involuntary bankruptcy, insolvency or reorganization petition filed
against such party within sixty (60) days after the filing of such
petition; or (iii) the other party liquidates, dissolves or ceases to do
business as a going concern.
(g) Upon termination of this Agreement pursuant to this
Section 9, Brown-Forman shall promptly pay to SABC all unpaid invoices in
full and all unpaid costs incurred by SABC pursuant to this Agreement.
10. AGENCY AND INDEMNIFICATION.
(a) SABC and Brown-Forman understand and agree that neither
party, by virtue of this Agreement or anything contained herein, including
SABC affixing to any Product and/or registering the name of "Brown-Forman
Distillery Company" or any other Brown-Forman trade name, is constituted
or appointed the agent of the other party for any purpose whatsoever, nor
shall anything herein contained be deemed or construed as granting
Brown-Forman or SABC any right or authority to assume or to create any
obligation or responsibility, express or implied, for or on behalf of or
in the name of the other, or to bind the other in any manner or way
whatsoever.
[ * ] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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(b) Brown-Forman shall indemnify and hold harmless SABC from
and against any and all claims, expenses, causes of action or liabilities
of any nature whatsoever (collectively, "Damages"), to the extent that
Damages arise solely from the independent conduct of Brown-Forman;
provided that Damages shall not include any loss, liability, cost or
expense incurred by SABC as a consequence of the exercise by Brown-Forman
of any rights under this Agreement.
(c) SABC shall indemnify and hold harmless Brown-Forman from
and against any and all claims, expenses, causes of action or liabilities
of any nature whatsoever (collectively, "Damages"), to the extent that
Damages arise solely from the independent conduct of SABC; provided that
Damages shall not include any loss, liability, cost or expense incurred by
Brown-Forman as a consequence of the exercise by SABC of any of its rights
under this Agreement.
(d) Except as otherwise provided in subsections (b) and (c)
above and Section 11 below, neither party shall have any obligation to
indemnify the other with respect to any action or claim that may arise out
of or relate to the performance by the respective party under this
Agreement.
11. PRODUCT LIABILITY.
(a) SABC and Brown-Forman shall each maintain product
liability insurance coverage in the respective amount of not less than
[ * ] per occurrence and [ * ] combined single limit, and in the amount
of not less than [ * ] combined single limit in the aggregate relating to
the Product produced by SABC for Brown-Forman hereunder. Each such policy
shall be non-cancelable and non-amendable with respect to the other party
without at least thirty (30) days' prior notice to the other party and
each party shall provide at least annually a Certificate of Insurance
evidencing such coverage.
(b) SABC shall indemnify and hold harmless Brown-Forman and
all of its affiliates from and against any and all loss, liability, cost
or expense of any nature whatsoever, including reasonable attorney's fees
(collectively, "Product Liability Damages"), arising out of or associated
with the manufacture of the Product by SABC, regardless of when
manufactured, and whether under this Agreement or otherwise, except to the
extent that (i) Product Liability Damages were caused by improper storage,
handling or alteration of the Product after delivery to Brown-Forman, (ii)
Product Liability Damages are based on or result from a claim that the
Product is inherently defective, or (iii) Product Liability Damages were
caused by the ISEP, ISEP Materials, specifications, formulas, standards,
processes or quality control programs specified by Brown-Forman.
(c) Brown-Forman shall indemnify and hold harmless SABC and
all of its affiliates from and against any and all Product Liability
Damages to the extent arising out of the causes excepted from SABC's duty
to indemnify Brown-Forman under clauses (i), (ii) and (iii) of subsection
(b) of this Section 11.
(d) Notwithstanding the provisions of subsections (b) and (c)
of Section 12, in no event shall either party be liable to indemnify the
other Party for consequential and/or punitive damages suffered by the
other in an amount greater than [ * ].
12. RECIPE AND QUALITY
(a) SABC shall produce the Product in accordance with the
specifications to be provided by Brown-Forman no later than [ * ] and
approved by SABC and in compliance with federal, state and local laws and
regulations applicable to the Product. Brown-Forman shall have the right
to change specifications upon reasonable prior written notice, provided
that the cost of any such change shall be borne by Brown-Forman and,
provided further, that the specified ISEP Materials are readily available
in the necessary timeframe.
[ * ] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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(b) The Product shall be produced and shipped according to
Brown-Forman's specifications. SABC shall take two samples of each batch
of Product prior to loading the shipment onto trucks and shall properly
identify and store such sample at the Brewery and send the other sample
with the shipment to Brown-Forman. Brown-Forman shall have the right to
inspect such sample upon final delivery at Brown-Forman's facilities and
reject such Product if the sample does not meet Brown-Forman's
specifications, provided that the failure to meet such specifications is
not the result of mishandling or an event that may have occurred
subsequent to the sample being loaded on Brown-Forman's trucks.
13. COMPETING PRODUCTS.
(a) [ * ].
(b) [ * ].
(c) [ * ].
(d) The parties agree to work in good faith to resolve issues
that may arise from time to time relating to the Production Capacity
allocation or other provisions of this Agreement to seek mutually
beneficial solutions thereof.
14. RIGHTS OF OFFSET.
The parties acknowledge and agree that, to the extent a party is at
any time owed money by the other party that is either immediately due and
payable or is overdue, such party may set off such amount against any
monies owed by such party from time to time to such other party, said
set-off to be accomplished by written notice to such other party effective
upon being sent.
15. LIMITATION PERIOD ON CLAIMS.
All claims hereunder must be brought no later than [ * ] after such
claims arose or the party having such claim shall be deemed to have waived
and forever released it; provided that for this purpose, a claim will be
deemed to have arisen at the time the party asserting the claim first
became aware of it.
16. NOTICES.
All notices required herein shall be given by registered airmail,
return receipt requested, or by overnight courier service, in both cases
with a copy also sent by telecopier or email, to the following addresses
(unless change thereof has previously been given to the arty giving the
notice) and shall be deemed effective when received:
If to Brown-Forman: Theodore S. Lioutas, V.P. R&D and
Alan Blake, GM Louisville Production Operations
Brown-Forman Corporation
850 Dixie Highway
Louisville, KY. 49210
(502) 774-7377
theo_lioutas@b-f.com
alan_blake@b-f.com
[ * ] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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with a copy to: General Counsel
Brown-Forman Corporation
850 Dixie Highway
Louisville, KY. 49210
(502) 774-7963
If to SABC: Jeffrey D. White, COO, and
Martin F. Roper, President and CEO
The Boston Beer Company
75 Arlington Street
Boston, MA 02116
Fax: (617) 368-5553
martin.roper@bostonbeer.com
jeff.white@bostonbeer.com
with a copy to: Frederick H. Grein, Jr., Esq.
Nixon Peabody LLP
100 Summer Street
Boston, Massachusetts 02110
Fax: (866) 369-4741
fgrein@nixonpeabody.com
17. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of the parties, but shall not be assigned by any
party without the prior written consent of the other Party, which consent
will not be unreasonably withheld. No failure of a party to consent to a
proposed assignment of this Agreement by the other party shall be deemed
unreasonable if such party believes in good faith that the proposed
assignee is not capable of performing the financial or production
obligations of the party proposing to assign this Agreement. Transfer of
ownership to a parent, subsidiary or affiliate of a party shall not be
deemed an assignment under this Section 17. Assignment of this Agreement
shall not relieve the assigning Party of its financial obligations
hereunder, including its indemnification obligations, if an assignee
defaults in the performance of its assigned obligations.
18. GOVERNING LAW.
This Agreement shall be interpreted and construed in accordance with
the laws of the State of Ohio.
19. EXECUTION IN COUNTERPARTS.
This Agreement may be executed in one or more counterparts each of
which shall be deemed to be an original but all of which together shall
constitute one and the same document.
20. AMENDMENTS.
No amendment, change or modification of any of the terms, provisions
or conditions of this Agreement shall be effective unless made in writing
and signed or initialed on behalf of the Parties hereto by their duly
authorized representatives.
[ * ] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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21. NO THIRD PARTY BENEFICIARIES.
SABC and Brown-Forman agree that this Agreement is solely for their
benefit and it does not nor is it intended to create any rights in favor
of, or obligations owing to, any person not a Party to this Agreement.
22. ARBITRATION.
Any controversy or claim arising out of or relating to this
Agreement, or the breach hereof, with the exception of any claim for a
temporary restraining order or preliminary or permanent injunctive relief
to enjoin any breach or threatened breach hereof, shall be settled by
binding arbitration to be conducted by the American Arbitration
Association ("AAA") in New York City in accordance with the Optional
Procedures for Large Complex Commercial Disputes (the "Complex
Procedures"), and to the extent any such matter is not addressed by the
Complex Procedures, in accordance with the Commercial Arbitration Rules of
applying the laws of New York. The parties agree that (i) such arbitration
shall be conducted by a panel of three arbitrators experienced in
commercial controversies, (ii) discovery shall not be permitted except as
pursuant to the Complex Procedures, or where applicable the Commercial
Arbitration Rules off AAA, and (iii) no punitive or exemplary damages
shall be awarded. The parties also agree that the parties' respective
rights to terminate this Agreement in the event of a breach by the other
party of its obligations thereunder shall be suspended pending the
resolution of any dispute with respect to the asserted breach, and each
party shall continue to perform its obligations under this Agreement,
until the dispute is resolved. (The preceding sentence shall not affect
any party's right to terminate that is not based upon a breach.) Any award
rendered by the arbitrators shall be final and binding on the parties, and
judgment may be entered on it in any court of competent jurisdiction as
otherwise provided by law; provided that, if the decision of the
arbitrators was to affirm the existence of a default or breach, the
non-prevailing party shall be afforded a period of forty-five (45) days
after the decision of the arbitrators is rendered to cure the default or
breach or such longer cure period as may be determined appropriate by the
arbitrators. In the event of any such arbitration (including, without
limitation, any arbitration relating to the interpretation or enforcement
of this Agreement), the prevailing party or parties shall be entitled to
recover from the other party or parties all reasonable attorneys' fees and
expenses incurred in connection therewith, to the extent determined
appropriate and so awarded by the arbitrators.
23. CONFIDENTIALITY.
SABC and Brown-Forman acknowledge that they are or will be engaged
in competition with one another and engaged in transactions with other
parties in the industry in which they do business; and misuse by either
party of information provided to it by the other in connection with the
transactions contemplated by this Agreement could have a most serious
impact on the other's competitive position. Therefore, in consideration of
Confidential Information, as hereinafter defined, previously exchanged
between the parties, and in order to induce each party to make available
and known to the other certain Confidential Information in connection with
the transactions contemplated herein, the Parties agree as follows:
(a) "Confidential Information" shall include recipes, brewing
processes and procedures, quality perimeters, sources of supply,
forecasts, production plans, financial information, unpublished business
plans, research, inventions, know-how, trade secrets, present and future
products, processes and/or customers.
(b) Confidential Information shall not include any information
which:
(i) was previously known to the other Party, other than as a
result of the transactions referred to herein and free of any obligation to keep
it confidential; or
[ * ] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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(ii) is or becomes publicly known through no wrongful
act or failure to act of the other Party; or
(iii) was or is independently developed by the other
Party without the use of any information that would otherwise be Confidential
Information, as shown by records maintained in the ordinary course of the
developing Party's business; or
(iv) is disclosed pursuant to a statute, regulation or
the order of a court of competent jurisdiction provided the Party from whom the
production is required previously notifies the other Party.
(c) Each Party shall:
(i) use the Confidential Information only in connection
with the transactions contemplated in this Agreement, and for no other purpose
whatsoever;
(ii) restrict disclosure of the Confidential Information
solely to those of its officers, directors, members, managers and employees, or
its agents (all under similar restrictions of confidentiality) with a need to
know, and permit such individuals or agents to use the Confidential Information
only in connection with the transactions contemplated in this Agreement;
(iii) use and require its officers, directors, members,
managers, employees and agents, (including, in the case of Brown-Forman, its BBC
Brewmasters and in the case of SABC each of its Brewmasters) to use at least the
same degree of care to protect the Confidential Information as is used with
comparable confidential information; and advise its officers, directors,
members, managers, employees and agents, (including, in the case of
Brown-Forman, its BBC Brewmasters and in the case of SABC each of its
Brewmasters) who receive the Confidential Information that they may only use,
and are required to protect, such Confidential Information as set forth above.
(d) The obligations of the Parties hereunder shall survive the
termination of this Agreement.
(e) The Parties agree to maintain in confidence the material
terms and conditions contained in this Agreement and related documents,
provided that Brown-Forman shall have the right to disclose any or all of
such terms and conditions, in its discretion in its reports filed with the
Securities and Exchange Commission, including the right to file such
documents as exhibits to such a report.
24. MERGER; SEPARABILITY.
This Agreement terminates and supersedes all prior formal or
informal understandings between the Parties with respect to the subject
matter contained herein. Should any provision or provisions of this
Agreement be deemed ineffective or void for any reason whatsoever, such
provision or provisions shall be deemed separable and shall not effect the
validity of any other provision.
[ * ] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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IN WITNESS WHEREOF, the parties have executed this Agreement , effective
as of the Effective Date.
Witness: BROWN-FORMAN CORPORATION
/S/ ROMA TESTA By: /S/ THEODORE LIOUTAS
- --------------------------- ----------------------------------
V.P. R&D
Witness: SAMUEL ADAMS BREWERY COMPANY, LTD.
/S/ KATHLEEN H. WADE By: /S/ MARTIN F. ROPER
- --------------------------- ----------------------------------
President and CEO
[ * ] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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SCHEDULE 1
FORECAST FOR FIRST 12 MONTHS OF PRODUCTION OF BASE2
MONTH BBLS
[ * ] [ * ]
TOTAL [ * ]
[ * ] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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SCHEDULE 2
BASE1 AND BASE2 FERMENTATION AND STORAGE CAPACITY EQUIPMENT REQUIREMENTS -
ESTIMATED COSTS
[ * ]
[ * ] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
- 1 -