EXHIBIT 10.45
Execution Copy
TRADEMARK LICENSE AGREEMENT
[Xxxxxx Pack-Enterprises, Inc.)
THIS TRADEMARK LICENSE AGREEMENT (this "Agreement") is made
and entered into as of June 30, 2003, by and between XXXXXX PACK-ENTERPRISES,
INC., a North Carolina corporation ("LICENSOR"), which has as its business
address at 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, and MOMENTUM FOOD
SERVICE, INC., a Florida corporation ("LICENSEE"), which has as its business
address at X.X. Xxx 0000, Xxxxx Xxxxx, Xxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, LICENSOR owns certain common law trademarks, service
marks and/or other indicia associated with the business of marketing and selling
wholesale goods and food stuffs (the "Business"), including without limitation
the trademarks, service marks and other indicia and applications listed on
Exhibit "A" attached hereto (collectively, together with all other marks and
indicia hereafter adopted, used and approved by LICENSOR with respect to such
Business, referred to as the "MARKS"); and
WHEREAS, the parties desire and intend that LICENSEE be
granted the right to use the MARKS, as provided herein;
NOW, THEREFORE, for and in consideration of Twenty Five
Thousand Dollars ($25,000.00), which will be represented and secured by the
Promissory Note, attached as Exhibit "B" to this Trademark License Agreement,
and the premises, covenants, agreements, representations and warranties
hereinafter set forth therein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. LICENSE. LICENSOR hereby grants to LICENSEE the
right to use the MARKS as set forth in Exhibit "B" in the operation of a
business comparable to the LICENSOR'S Business under the MARKS (the "LICENSEE'S
BUSINESS"). In consideration for the license granted herein, LICENSEE shall pay
to LICENSOR a running royalty of 0.5% of the gross amount received by LICENSEE
for products sold under the MARKS, less the following: (i) customary trade,
quantity, or cash discounts to the extent actually allowed and taken; (ii) to
the extent separately stated on purchase orders, invoices, or other documents of
sale, any taxes or other governmental charges levied on the production, sale,
transportation, delivery (the "Royalty"). LICENSEE acknowledges
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that LICENSOR shall have the right to retain the use of the MARKS in the
LICENSOR'S BUSINESS. The Royalty may be increased with the prior written consent
of the Parties.
2. WARRANTY OF OWNERSHIP OF MARKS. LICENSOR warrants and
represents that it is not aware of any challenge to LICENSOR'S ownership rights
in and to the MARKS, and that it has the right and power to grant to LICENSEE
the license herein conveyed.
3. ACKNOWLEDGMENT OF RIGHTS IN MARKS. LICENSEE acknowledges
LICENSOR'S exclusive ownership right, title and interest in and to the MARKS,
and further acknowledges that nothing herein shall give it any right, title or
interest in the MARKS except for the license expressly provided in this
Agreement.
4. ASSIGNMENTS AND SUBLICENSES. LICENSOR will have the right to
sublicense the right to use the MARKS to any other person or entity, so long as
LICENSOR provides LICENSEE with prior written notice. LICENSEE shall not assign
this Agreement, nor any of its rights, obligations, and duties hereunder without
the prior written consent of LICENSOR, which consent shall be within the sole
and absolute discretion of LICENSOR, with the exception that LICENSEE may grant
a sublicense of this Agreement and the rights, obligations and duties set forth
herein, to any affiliated entity, i.e., an entity wholly owned by LICENSEE or
which owns greater than fifty percent (50%) of the voting stock of LICENSEE. Any
assignment or sublicense of any rights, obligations or duties hereunder by
LICENSEE, without the prior written consent of LICENSOR, as provided herein,
shall be void and of no force and effect and, at the election of LICENSOR, be a
default hereunder which will trigger a right by LICENSOR to terminate this
Agreement, subject to the exceptions set forth in this paragraph. In the event
of such termination, this Agreement shall be of no further force or effect, and
LICENSEE shall have no further right or remedy either in law or in equity
against LICENSOR thereafter and shall cease and desist from any use of the
MARKS.
5. PROTECTION OF MARKS. LICENSOR shall have the right, under this
Agreement, to implement reasonable safeguards and protections for the value of
the MARKS, including rights to inspect and review the use of the MARKS and to
prohibit practices or procedures which are in violation of this Agreement.
Without limiting the generality of the foregoing, the following provisions shall
apply:
A. LICENSOR hereby licenses LICENSEE to use the MARKS in
connection with the LICENSEE'S BUSINESS upon the terms herein set forth, on the
condition that such use and display of the MARKS by LICENSEE must conform with
the guidelines of LICENSOR.
B. LICENSEE agrees that the products or services to be
sold or provided under the MARKS must be of first quality.
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C. LICENSEE agrees that the products or services to be
sold or provided under the MARKS will not be promoted, marketed, advertised or
sold in any manner tending to mislead or deceive the public.
D. LICENSOR shall, in its sole discretion, determine
whether LICENSEE conforms to LICENSOR'S standards of quality and shall inform
LICENSEE of any deficiencies. The failure to so conform to such standards shall
constitute a breach of this Agreement and will give LICENSOR the right to
terminate this Agreement.
6. TERM. The term of this Agreement shall be perpetual.
7. DEFAULT; TERMINATION. Upon any breach by LICENSEE of the
terms, obligations or covenants hereof, LICENSEE shall be in default hereunder.
Upon such default, LICENSOR shall have the right to immediately terminate this
Agreement. Upon such terminate, this Agreement shall be of no further force or
effect, and all right, title or interest of LICENSEE in and to the MARKS shall
cease and LICENSEE shall cease and desist from using the MARKS in any manner.
Upon such election and termination of this Agreement, LICENSOR shall have the
right to seek any legal and/or equitable relief against LICENSEE including but
not limited to injunctive relief.
8. NO CONTEST. LICENSEE will not at any time during the term of
this Agreement or thereafter, contest or challenge the validity of the MARKS or
LICENSOR'S ownership thereof.
9. APPLICABLE LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of North Carolina, United States,
including any applicable treaties or conventions to which the United States is a
party, but excepting any North Carolina or United States rule, which would
result in the application of the law of a jurisdiction other than the State of
North Carolina.
10. CONSENT TO JURISDICTION, VENUE, AND SERVICE. The LICENSEE
irrevocably consents to the exclusive jurisdiction of, and the laying of venue
exclusively in, the state courts in [County] County, North Carolina, in any
dispute, action or suit arising out of this Agreement, and hereby
unconditionally agrees that service of process mailed to the LICENSEE in
accordance with the further provisions of this Agreement shall be effective and
sufficient service of process upon the LICENSEE to establish jurisdiction and
venue in such court in any such dispute, action or suit.
11. NOTICES. Any and all notices or any other communication under
this Agreement shall be given in writing and delivered by personal delivery or
United States first class mail or reputable overnight courier service,
registered, airmail postage charges prepaid, which shall be addressed, to
LICENSOR or LICENSEE, as the case may be, at the addresses set forth in the
preamble of this Agreement, or to such other address as a party shall have
previously designated by written notice to the serving party given in accordance
with this Section. Notice sent by United States first class mail or
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overnight courier shall be effective and deemed received upon the date of actual
receipt, or upon the third (3rd) calendar day subsequent to deposit in the mail
or delivery to the courier, whichever is earlier.
12. MISCELLANEOUS. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized corporate officers, all as of the day and year
first above written.
LICENSOR:
XXXXXX PACK-ENTERPRISES, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Its: PRESIDENT
LICENSEE:
MOMENTUM FOOD SERVICE, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
----------------------------
Its: SECRETARY
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