270 Legal [Sample Agreements]

This ASSIGNMENT and CO-EXISTENCE AGREEMENT, (this “Agreement”), dated December 10, 1999 (the “Effective Date”), is by and between Gordon Biersch Brewing Company, Inc., a California corporation (“GBC”), 2960 W. Sahara Avenue, Suite 200, Las Vegas, Nevada 89102 and GB Acquisition, Inc., a Tennessee corporation (“Big River”). 100 East 10th Street, Suite 600, Chattanooga, Tennessee 37402 (each individually a “Party”; collectively the “Parties”).

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ARTICLE 2 REPRESENTATIONS AND WARRANTIES.

2.01 By Big River. In addition to the covenants made in Articles 3 and 4, in order to induce GBC to execute this Agreement, Big River represents and warrants that:

(1) subject to the receipt of the Recipes and product specifications attached hereto as Exhibit E, Big River is in possession of (or will acquire) and will use all necessary ability, knowledge, know-how and methods of production to brew, sell and serve beer in accordance with the terms and conditions of this Agreement;

(2) Big River has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement;

(3) the execution, delivery and performance of this Agreement has been duly authorized by Big River;

(4) Big River is duly licensed, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required for the ownership or leasing of its assets and the transaction of the Restaurant Business and the business of the character transacted by it and contemplated by this Agreement, except where the failure to be so licensed, authorized or qualified would not have a material adverse effect on its ability to fulfill its obligations under this Agreement;

(5) Big River is in compliance with all applicable Federal, state and local laws and regulations pertaining to the Restaurant Business and its obligations under this Agreement, except where the failure to be so compliant would not have a material adverse effect on its ability to fulfill its obligations under this Agreement.

2.02 By GBC. In addition to the covenants made in Articles 3 and 4, in order to induce Big River to execute this Agreement, GBC represents and warrants that:

(1) GBC has full legal title to the Marks in the United States free and clear of any liens or encumbrances and, to its knowledge, of any right or interest of others therein, direct or contingent, except as set forth on Exhibit B;

(2) Exhibit B sets forth the Marks under which GBC presently conducts the Restaurant Business and the Brewery Business. However, Exhibit B does not necessarily include all of the Marks or trade dress used in advertising, packaging and labeling materials for the Product, which Brewery Marks and trade dress will be made available to Big River solely for use in connection with Point-of-Sale Materials for Product brewed under the Restaurant Marks in the Restaurants;

(3) GBC is the owner of the Recipes, and there are no existing process patents with respect thereto;

(4) GBC has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement;

(5) except as set forth on Exhibit F, GBC is not a party to any other contract, agreement or understanding, written or oral, that will be assumed by Big River (with the exception of agreements with respect to the Concession Business listed on Exhibit F, which will not be assumed by Big River) pursuant to the Asset Purchase Agreement and which materially affects the manufacture, promotion, marketing or sale of beer under the Marks in the Territory;

(6) the execution, delivery and performance of this Agreement has been duly authorized by GBC;

(7) GBC is duly licensed, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required for the ownership or leasing of its assets and the transaction of the Brewery Business, and the business of the character transacted by it and contemplated by this Agreement, except where the failure to be so licensed, authorized or qualified would not have a material adverse effect on its ability to fulfill its obligations under this Agreement; and

(8) GBC is in compliance with all applicable Federal, state and local laws and regulations pertaining to the Brewery Business and it obligations under this Agreement, except where the failure to be so compliant would not have a material adverse effect on its ability to fulfill its obligations under this Agreement.

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ARTICLE 4 BRAND MANAGEMENT COUNCIL.

Each Party shall appoint three representatives to actively participate in a Brand Management Council which will meet at least once annually to (1) address any issues with respect to the terms and conditions of this Agreement; (2) any proposed alterations or modifications of the Brewery Marks or Restaurant Marks; (3) any proposal for a new mark or Internet domain name consisting or comprised of any of the Brewery Marks or Restaurant Marks; (4) the value, reputation and goodwill of the Brewery Marks or Restaurant Marks; and (5) any imbalances or discrepancies between the value, reputation and goodwill of the Restaurant Marks and the Restaurant Business on the one hand and the Brewery Marks and the Brewery Business on the other. The Parties agree to cooperate to take any measures required to take advantage of any reasonable business opportunities with respect to the value or prestige of the Brewery Marks or Restaurant Marks, and to rectify the degradation or decline in value or prestige of any of the Brewery Marks or Restaurant Marks, including conducting brand and marketing studies in furtherance of the foregoing. In the event that a Party wishes to alter or modify the Brewery Marks or Restaurant Marks, or the Web Site associated with the Restaurant Business or Brewery Business, or the nature and scope of the products or services included in the Restaurant Business or the Brewery Business, that Party agrees to seek the prior written approval of the other Party to such alteration or modification, which shall not be unreasonably withheld or denied. Each Party shall have the right to object to any such proposed alterations or modifications that are inconsistent with the image, reputation or goodwill associated with the Restaurant Business, the Brewery Business, the Brewery Marks, the Restaurant Marks or the Parties.

ARTICLE 5 INFRINGEMENT PROCEEDINGS.

Each party shall promptly notify the other party in writing of any actual or suspected unauthorized third party use of the Brewery Marks or Restaurant Marks or Confidential and Proprietary Information, as such use comes to a Party’s attention. If the Party elects to defend or enforce its rights relating to such alleged infringement, upon written notice to the other Party it shall have the sole and absolute right and discretion to (1) communicate in writing or orally with the alleged infringer; and (2) enforce or defend its rights in, to and under the Brewery Marks or Restaurant Marks, as applicable; and (3) commence infringement, unfair competition or other proceedings involving the Brewery Marks or Restaurant Marks, as applicable; and (4) retain counsel for any of the foregoing purposes. If the infringement involves both the Restaurant Marks and the Brewery Marks each Party shall have the opportunity to participate in (1) the communication in writing or orally with the alleged infringer; and (2) the enforcement or defense of its rights; and (3) the undertaking of infringement, unfair competition or other proceedings involving the Brewery Marks and Restaurant Marks, and Confidential and Proprietary Information; provided, however, that if a Party elects not to defend or enforce its rights against such alleged infringer, the non-enforcing Party shall be entitled to exercise any of the foregoing rights alone (including retention of counsel of its choice) and the Party agrees to cooperate with the enforcing Party in the exercise of such rights. Damages recovered as a result of such infringement, net of the fees and costs of enforcement, shall be equitably apportioned between the Parties in accordance with their percentage contribution to the fees and costs of enforcement, and otherwise equitably apportioned in accordance with the relative damages suffered by each Party as a result of such infringement.
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