EXHIBIT No. 425 [Copy of Canada Dry Ginger Ale, Inc. import agreement submitted by Canada Dry Ginger Ale, Inc.) CANADA DRY GINGER ALE, INCORPORATED, 100 East 42nd Street, New York, N. Y. GENTLEMEN: In the recent decision of the Court of Appeals of New York State, Section 2 of the Fair Trade Act of the State of New York was sustained. The decision of the Court reverses its previous holding on this Section. Ву reason of this latter decision, it is no longer necessary that the sales of the alcoholic beverages enumerated in Paragraph Third of our Retail Sales Agreement with you be limited by us and our wholesalers to retailers who have entered into contracts with us. The decision now enables us to restrain retailers who have not signed an agreement with us from selling below prices established by us in contracts entered into pursuant to the Fair Trade Act. We are therefore deleting from our Retail Sales Agreements with our retailers the paragraphs therein numbered and designated as "First" and "Second." In order to afford the retailers the same protection granted to them under the existing agreements with us from price cutting by non-contract signers, we are deleting from such agreements the Thirteenth paragraph thereof in its present form and substituting in lieu thereof the following: “THIRTEENTH: The Owner, recognizing the damages to the Retailer by the sale of the Owner's products by dealers therein below the minimum price stipulated from time to time by the Owner pursuant to this agreement, agrees that in the event of a sale by any retailer of the Owner's products below such minimum price to take immediate action in the Courts of this State for injunctive relief and to pursue the other remedies available to it, if in the opinion of the Owner and its counsel such action is warranted and advisable under the then existing circumstances." It is essential that our present agreement be modified as above and, pursuant to Paragraph Fourteenth of such agreement with you, we hereby elect to terminate such agreement as of sixty (60) days from the date of receipt of this letter by you. It is provided, however, that if, prior to such date, we receive a copy of this letter which we herewith enclose, with your duly signed consent to the abovementioned modifications of our present agreement, our notice of cancellation shall be deemed to have been withdrawn and our agreement with you, as modified, shall continue in full force and effect. Will you kindly sign and return the consent to the foregoing changes on the copy of this letter which is enclosed herein. We shall appreciate your prompt cooperation in this matter. Very truly yours, CANADA DRY GINGER ALE, INCORPORATED, Ву It is hereby agreed that our Retail Sales Agreement with you be and the same is hereby modified as above provided. Retailer. License No. This Agreement, made this day of December, 193. between CANADA DRY GINGER ALE, INCORPORATED, a Delaware corporation, with an office and place of business at 100 East 42nd Street, Borough of Manhattan, New York, N. Y., hereinafter called "Owner”, and of New York, hereinafter called “Retailer”, WITNESSETH: WHEREAS the Owner is engaged in the business of distributing alcoholic beverages in the State of New York produced by various corporations represented by Owner, which beverages are advertised, distributed and sold under and bear trade-marks, brands, and names of said corporations and affiliated corporations; and WHEREAS said beverages are in fair and open competition with commodities of the same general class produced by others; and WHEREAS the Owner and the Retailer desire to avail themselves and the public of the benefits of the Fair Trade Practice Act of New York and to avoid having such trade marked and branded articles made the subject of injurious and uneconomic practices and to avoid the depreciation of or damage to said trade marks, brands or names through such practice, Now, THEREFORE, the parties hereto agree as follows: First: The Owner agrees that in selling such alcoholic beverages to distributors, jobbers, or selling agents that it will require, on delivery, in writing, that such distributors, jobbers, or selling agents will not in turn sell said commodities to any retailer who fails to maintain stipulated resale price or prices unless and until such retailer or retailers shall have executed an agreement similar hereto. Second: The Owner agrees that he will not sell or deliver any such products for resale to any person, firm, or corporation until and unless said person, firm, or corporation shall have executed and delivered to the Owner an agreement, containing all of the terms, covenants, and conditions set forth herein. Third: The Retailer agrees that he will not sell, advertise, or offer for sale within the State of New York any beverages for which the Owner is distributor and which bear trade-marks, brands, or names of CANADA DRY GINGER ALE, INCORPORATED, or corporations represented by Owner, which Retailer has purchased or now has on hand, or which Retailer may hereafter purchase, below the minimum price stipulated from time to time by the Owner for sale to the consumer. The Retailer agrees that he will not directly, or indirectly, give any article of value or make any concession, directly or in irectly, which will result in a price to the consumer below the price stipulated in the Consumer Price Schedule issued by the Owner, and that he will not sell or offer for sale any of said products in combination with any other liquor or product at a single or joint price, and that the giving of any article of value or the making of any concession, or the sale or offering for sale of any such product in combination with any other article or product at a single or joint price shall constitute a violation of this agreement. Fourth: In the event Retailer receives permission from the proper authorities to sell or transfer his store or any of his merchandise for resale, Retailer agrees that as a condition of the sale, he will require that his successor or assignee shall be bound by this contract. The Retailer agrees that this contract shall be applicable to any merchandise purchased or received in any manner whatsoever by the Retailer in the State of New York, which shall bear such trade marks, brands, or names of CANADA DRY GINGER ALE, INCORPORATED, or the corporations which it represents, and that such products which may have been bought from sources other than the Owner or its duly authorized wholesalers, jobbers or importers, as aforesaid, will not be resold at prices less than the minimum resale prices in effect under this agreement. Fifth: The minimum sales price of such beverages by Retailer to consumers will be in accordance with written schedules thereof, furnished from time to time to Retailer by Owner or distributor of Owner, which schedules are to be considered a part of this contract. The schedule last delivered to Retailer shall govern the resale price to consumer. Sixth: The Owner may from time to time by fifteen (15) days written notice to the Retailer add to those products specified in the Owner's Price Schedule, and as to those additional products all the provisions of this contract shall apply. Seventh: The Owner may upon at least fifteen (15) days notice to the Retailer, which notice shall be in writing mailed by the Distributor to the Retailer in a postpaid envelope addressed to the Retailer, revise such minimum resale prices. Eighth: If in accordance with Section C of Article II of the Fair Trade Act Retailer may sell his products without reference to this contract, Retailer shall, before offering such commodity for sale at a price less than the minimum resale prices stipulated in this agreement, first offer in writing upon five (5) days notice to sell such commodity, or commodities, to the Owner at the said proposed resale price or the price at which said product was sold to Retailer, whichever shall be lower. Ninth: The parties hereto recognize and agree that it is impossible to determine the actual damage which will result to the Retailer as a result of the sale and/or delivery of merchandise for resale to any person, firm or corporation who shall not have previously executed and delivered an agreement as set forth in paragraph “Second” in contravention of the terms of this agreement and they therefore, agree that in addition to other legal rights and remedies, Retailer shall be entitled to injunctive relief against any and all actual or threatened breaches of this agreement. Tenth: The parties hereto recognize that it is impossible to determine the actual damage which will result to the Owner and other Retailers from sales made by the Retailer in contravention of the terms of this Agreement and the parties therefore agree that immediately upon any breach of this agreement on the part of the Retailer that the Owner shall have the right to forthwith demand delivery by the Retailer to the Owner of all said products held in the Retailer's stock, for which Owner shall pay to the Retailer at the current net prices quoted to the Retail trade for the same quantities of said products. Nothing herein contained, however, shall be considered to be a waiver of the Owner's right to recover damages for such breach. Eleventh: The Retailer recognizing further that his breach of this agreement damages every other Retailer who has signed a similar contract agrees that the Retailer shall pay in addition to the Owner, as liquidated damages a reasonable attorney's fee if and when and as often as the Owner shall obtain a final judgment in any court for a breach of this agreement by an action at law or in equity. Twelfth: It is further agreed that the parties recognizing the damage that will necessarily follow a breach of this agreement to all other retailers who have signed similar contracts, further agree that in addition to all other rights and remedies the Owner shall be entitled to injunctive relief against any and all or actual or threatened breaches of this agreement and in addition thereto shall be entitled to specific performance of the repurchase agreements contained herein. Thirteenth: The Owner recognizing the damages to the Retailer by the actual or threatened breach of a similar agreement by a retailer handling the Owner's products for resale to the consumer agrees that in the event of a breach of a similar agreement by any other retailer, to take immediate action in the Courts of this State for injunctive relief as well as damages for the breach thereof, and to pursue the other remedies available to them under this agreement and to apply to the courts of this State for specific performance of the terms of such agreement, if in the opinion of Owner and its counsel, such action is warranted under the then existing conditions. Fourteenth: This agreement shall become effective December 15th, 1936, and shall continue in operation for a period of five (5) years from date unless previously cancelled as hereinbelow provided. The Owner shall have the right to cancel this agreement on sixty (60) days prior written notice delivered to the Retailer. Fifteenth: This contract is made in pursuance of and by authority of the Fair Trade Act of the State of New York, must be executed in the State of New York by both parties hereto, and shall apply only to the sales made within the State of New York of beverages located therein. CANADA DRY GINGER ALE, INCORPORATED, By--- -Owner. ..Retailer. WITNESS: EXHIBIT No. 426 [Submitted by Canada Dry Ginger Ale, Inc.) PRICE SCHEDULE, METROPOLITAN AREA, CANADA DRY GINGER ALE, INCORPO RATED PRODUCTS, EFFECTIVE Nov. 1, 1938 (NOTE.—This price list embodies all the corrections that have taken place in our schedules since our last price list dated July 1, 1938. May we ask your full cooperation in maintaining these prices?] Johnnie Walker Scotch: Do... Do. Do... 10.00 1. 20 12/30. 10.25 .65 Do.. Italian White. French... 1. 47 1.05 8.75 PRICE SCHEDULE, METROPOLITAN AREA, CANADA DRY GINGER ALE, INCORPO RATED PRODUCTS, EFFECTIVE Nov. 1, 1938—Continued Brand Pkge. Sug- Congested sumer Dealer's Price Per Price Bottle Ron Daiquiri Coctelera Puerto Rico Rum: Do.-- Do.. Do... Do.. Do.-- Do. Do--- Do. Do.. Do. . Do.-- (White & Green) Do.. Blackberry Do. . Cherry Do. Peach... Do.-. Triple Sec. Do.-Creme de Rose.. Curacao Jugs. Do... Kummel. Do.. Marasquin Prunelle Jugs. Consumer's case price: 12 bottles for the price of 11 bottles. EXHIBIT No. 427 [Prepared by Federal Alcohol Administration] The figures below set forth the available information by dollar volume of newspaper and national magazine advertising by National Distillers Products Corporation, Schenley Distillers Corporation, Seagram Distillers Corporation, and Hiram Walker & Sons, Inc., and subsidiaries during the years 1934, 1935, 1936, 1937, and 1938: 1 Submitted by Advertising Age. It is understood that the magazine figures were compiled by Publishers' Information Bureau and newspaper figures by Media Records, Inc. * Taken from questionnaires submitted by industry members. These figures represent the most accurate information obtainable on this subject. They do not include, however, the total advertising expenditures by the companies involved, since outdoor, point of sale, and specialty advertisements are not included. Outdoor Advertising, Inc., advised that $4,000,000 was spent last year for national outdoor advertising and approximately $1,000,000 for local outdoor advertising. The Federal Alcohol Administration regularly subscribes to approximately 60 daily newspapers and 30 magazines, in which appear an average of approximately 1,350 advertisements of alcoholic beverages per week. Attached hereto is a representative cross section of current national magazine and newspaper advertisements for distilled spirits. "EXHIBIT No. 428", introduced on p. 2628, is on file with the Committee Dues... laws.... $206, 126. 19 $142, 216.89 $221, 028. 47 $348, 755.85 $323, 364.27 $1, 241, 491. 67 300.00 3, 715.00 140.00 4,155.00 27. 27 27. 27 39. 26 39. 26 Total.. 206, 153. 46| 142, 556. 15 225, 137.87 349, 330.85 323, 440.27 1,246, 618.60 |