EXHIBIT 10.3
ASSIGNMENT OF TRADEMARK LICENSE AGREEMENT
-----------------------------------------
THIS ASSIGNMENT is effective this 23rd day of January, 1998
("Effective Date"), from XXXXXX FOODS CORPORATION, a Delaware corporation
("Assignor") to EAGLE FAMILY FOODS, INC., a Delaware corporation ("Assignee").
WHEREAS, Assignor is a party to the Trademark License Agreement dated
as of September 4, 1997 between Assignor and Southern Foods Group, L.P. (the
"License");
WHEREAS, pursuant to Section 5.6(c) of the Asset Purchase Agreement
dated as of November 24, 1997 among Assignor, Assignee and BFC Investments,
L.P., an affiliate of Assignor ("Purchase Agreement"), Assignor has agreed to
assign to Assignee all of its right, title and interest in and to the License;
WHEREAS, Assignee wishes to acquire all of Assignor's right, title and
interest in and to the License;
NOW, THEREFORE, for good and valuable consideration (including that
recited in the Purchase Agreement), the receipt and sufficiency of which are
hereby acknowledged, Assignor hereby assigns, transfers and conveys to Assignee,
its successors and assigns forever, Assignor's entire right, title and interest
in and to the License. Assignee shall assume Assignor's status as a party
thereto, and in accordance with all of the provisions set forth therein.
Assignee shall succeed to all of Assignor's rights, obligations and liabilities
under the License as entirely as the same would have been held and enjoyed by
Assignor had this Assignment not been made.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed and delivered as of January 23, 1998.
XXXXXX FOODS CORPORATION
By: /s/ Xxxxx X. Xxxxx
--------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
EAGLE FAMILY FOODS, INC.
By: /s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
Title: Vice President
TRADEMARK LICENSE AGREEMENT
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AGREEMENT made this 4th day of September, 1997, by and between
SOUTHERN FOODS GROUP, L.P., a Delaware limited partnership ("Licensor"), and
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XXXXXX FOODS CORPORATION, a Delaware corporation ("Licensee").
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W I T N E S S E T H :
WHEREAS, Licensor owns the MEADOW GOLD trademarks used in connection
with sweetened condensed milk, and has obtained United States federal trademark
registrations therefor; and
WHEREAS, Licensee desires that Licensee and its permitted assignees
and sublicensees be allowed to process, sell and distribute sweetened condensed
milk under the MEADOW GOLD trademark and certain related designs of Licensor and
seeks to have Licensor grant it the right to do so, all on the terms and
conditions hereinafter set out.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
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Section 1.1 The following terms shall have the meanings set forth
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below:
"Initial Term" shall have the meaning set forth in Article IX, Section
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9.1.
"Licensed Trademarks" shall mean (i) the trademarks listed and
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described in Appendix A, attached hereto, including the United States federal
trademark registrations and applications therefor and all common law rights in
such
trademarks and any trade dress or label designs associated with such trademarks,
and (ii) any such other marks and trade dress or label designs as the parties
may agree in writing to add to Appendix A during the Term.
"Products" shall mean sweetened condensed milk and any other product
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that the parties agree in the future shall bear a Licensed Trademark.
"Renewal Period" shall have the meaning set forth in Article IX,
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Section 9.1.
"Term" shall mean the Initial Term and any Renewal Period.
----
"Territory" shall mean the United States.
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"United States" shall mean only the 50 states comprising the United
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States of America, and the District of Columbia, excluding without limitation
any U.S. possessions and territories.
ARTICLE II
GRANT OF LICENSE
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Section 2.1. (a) Subject to the terms and conditions herein,
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Licensor hereby grants to Licensee during the Initial Term of this Agreement and
any Renewal Periods an exclusive license to use the Licensed Trademarks on or in
connection with the Products in the Territory.
(b) This license is being entered into in connection with the Stock
Purchase and Merger Agreement dated as of May 22, 1997, among Mid-America
Dairymen, Inc., Xxxxxx, Inc., BDH Two, Inc. and Xxxxxx/Meadow Gold Dairies
Holdings, Inc. (the
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"Acquisition Agreement"), and the consummation by Xxxxxx, Inc. and BDH Two,
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Inc., each of which is an affiliate of Licensee, will be treated as
consideration for the license granted under Section 2.1(a). No other
consideration shall be payable as consideration for the license granted
hereunder.
Section 2.2. Subject to the terms and conditions herein, Licensee may
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use the Licensed Trademarks on Product containers, labels, packaging and
shipping cases and on delivery vehicles and in any other way suitable to promote
or advertise the Licensed Trademarks and the Products.
Section 2.3. Other than as expressly stated herein, Licensee shall
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have no other right to use or interest in the Licensed Trademarks.
Specifically, Licensee may not use any of the Licensed Trademarks in its trade
name or as its business name or in connection with any products, goods or
services of any kind or nature whatsoever, whether or not the same as or similar
to the Products, other than the Products. Notwithstanding the foregoing,
Licensee shall have the right to use any pre-existing materials bearing the
Licensed Trademarks for a transitional phase-out period of 120 days, after which
all use of such materials must cease. Nothing contained in this Article or any
other provision of this Agreement shall restrict Licensor from the sale of other
products different from the Products bearing the Licensed Trademarks anywhere in
the world.
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ARTICLE III
OWNERSHIP OF TRADEMARKS
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Section 3.1. Licensee acknowledges that Licensor is the sole owner of
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the Licensed Trademarks. Licensee shall not directly or indirectly question,
attack, contest, or in any other manner impugn the validity or Licensor's
ownership of the Licensed Trademarks, nor shall Licensee willingly become an
adverse party to Licensor in litigation contesting the validity of Licensor's
ownership and other rights in and to the Licensed Trademarks.
Section 3.2. Licensee shall be deemed a "related company" under the
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U.S. Xxxxxx Act, such that any use of the Licensed Trademarks by Licensee, and
any goodwill generated thereby, shall inure to the sole benefit of Licensor.
ARTICLE IV
FORM OF USE
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Section 4.1. Licensee hereby acknowledges and agrees that its use of
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the Licensed Trademarks shall be subject at all times during the Term to the
reasonable control of Licensor in order for Licensor to maintain the consistent
standard of quality associated with the Licensed Trademarks. Licensee will
preserve the good appearance of the Licensed Trademarks wherever and whenever
they are used and shall not use any Licensed Trademark in a manner which is
likely to derogate from the integrity, distinctiveness, goodwill, value or
strength of such Licensed Trademark.
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Section 4.2. From time to time, Licensor may determine that a
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previously published use of the Licensed Trademarks by Licensee may threaten the
value of the Licensed Trademarks, or is otherwise inconsistent with Licensor's
quality standards. Upon written notice from Licensor, Licensee shall implement
Licensor's directions regarding the proper use of the Licensed Trademarks as
promptly as practicable using its best efforts and, in any event, within thirty
(30) days.
Section 4.3. Except as required by law, Licensee agrees not to use
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the Licensed Trademarks in connection or combination with any other third-party
trademarks, names or logotypes, without Licensor's prior written approval, such
approval not to be withheld unreasonably. Licensee shall at no time adopt or
use any variation of the Licensed Trademarks or any word or marks confusingly
similar thereto without Licensor's prior written approval.
Section 4.4. Licensee shall not take any action to cause an
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abandonment or forfeiture of any of Licensor's rights in the Licensed Trademarks
and shall not take any action to cancel any registration in the Territory of any
Licensed Trademark in the name of Licensor or to interfere with any renewal of
any such registration. Licensee shall reasonably cooperate with and shall not
oppose any application by or on behalf of Licensor to register or renew any
registration of any Licensed Trademark in the Territory.
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ARTICLE V
QUALITY CONTROL
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Section 5.1. Licensee agrees that all Products bearing a Licensed
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Trademark pursuant to the Agreement shall be of a high standard and of such
quality as to protect and enhance the Licensed Trademarks and the goodwill and
value pertaining thereto and shall meet Licensee's quality standards. Licensee
and its Manufacturing Agents (as defined in Section 5.5 below) shall
manufacture, sell, distribute and promote the Products in accordance with all
applicable federal, state and local laws.
Section 5.2. In order to assure that Licensee meets Licensor's
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quality standards and specifications, once each quarter of the Term and/or for
good cause shown, Licensee shall submit comprehensive affidavits that meet with
Licensor's reasonable approval from all of Licensee's quality control department
managers responsible for the quality standards of the Products produced by that
part of Licensee's or its Manufacturing Agents' business for which they are
responsible, attesting under oath that Licensor's quality standards and Product
specifications have been fully complied with during the prior quarter, also
submitting representative Product samples, if any, and listing the number of
customer complaints relating to Product quality during that quarter and a
summary of the actions taken by Licensee in response to such complaints.
Section 5.3. Licensor also reserves the right periodically to conduct
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quality control inspections, upon reasonable notice and during normal business
hours, at Licensee's
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plants to determine if the Licensee's standards for the Products and the
processing thereof are being complied with.
Section 5.4. In the event that Licensor or its agents shall determine
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that any Products sold or distributed by Licensee and/or its Manufacturing
Agents bearing or using Licensed Trademarks do not conform to Licensee's
standards, and/or otherwise violate the provisions of this Article V, Licensee
agrees, at its expense, to take such action as Licensor directs in writing,
including, but not limited to, withdrawal and/or recall of such Products from
the market and to refrain and cause its Manufacturing Agents to refrain from
further sale and/or distribution of such Products under the Licensed Trademarks
unless and until Licensee and/or its Manufacturing Agents have demonstrated to
the reasonable satisfaction of Licensor that said Products conform to said
standards and/or the provisions of the Article V, as the case may be.
Section 5.5. If Licensee enters into co-packing agreements with
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suppliers or any other arrangement with respect to the processing or packaging
of final Products by any person who is not a subsidiary of Licensee, who will
process or package final Products for the Licensee, for sale in the Territory
("Manufacturing Agents"), Licensee must submit such co-packing agreements in
----------------------
draft form to Licensor or an individual designated by Licensor ("Licensor's
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License Coordinator") for prior approval to ensure they include trademark
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protection and quality control provisions that safeguard the rights of both the
Licensor and Licensee under this Agreement. Licensor agrees that such prior
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approval shall not be withheld or delayed unreasonably, and that Licensor shall
respond promptly to any request for approval. If Licensor fails to respond to
such request within thirty (30) days, Licensor's approval shall be deemed given.
Section 5.6. On a semi-annual basis, Licensee shall review with
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Licensor's License Coordinator and obtain prior approval for, all advertising,
promotional and point-of-purchase materials published or distributed by Licensee
in connection with Products bearing Licensed Trademarks. Licensor agrees that
such prior approval shall not be withheld or delayed unreasonably, and that
Licensor shall respond promptly to any request for approval. If Licensor fails
to respond to such request within thirty (30) days, Licensor's approval shall be
deemed given.
Section 5.7. If Licensee desires to adopt new cartons or packaging
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bearing the Licensed Trademarks, which package designs or trade dress are
different from those presently used by Licensor, Licensee shall submit to
Licensor's License Coordinator at least one (1) representative sample of each
such new carton and packaging material and may not use any such materials in
connection with the Licensed Trademarks without Licensor's prior written
approval. Licensor agrees that such prior approval shall not be withheld or
delayed unreasonably, and that Licensor shall respond promptly to any request
for approval. If Licensor fails to respond to such request within thirty (30)
days, Licensor's approval shall be deemed given.
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ARTICLE VI
REPRESENTATIONS, WARRANTIES AND COVENANTS
-----------------------------------------
Section 6.1. Subject to the limitations of Section 6.2, Licensor
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represents that it is the owner of or has the exclusive right to license the
Licensed Trademarks and is not aware of any other party with ownership rights in
the Territory in any of the Licensed Trademarks.
Section 6.2. Licensor represents that during the Term, it will not
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license any other party to use the Licensed Trademarks on the Products in the
Territory and will not itself sell Products identified by the Licensed
Trademarks in the Territory. Nothing herein shall restrict Licensor's right or
ability to sell (or license others to sell) goods or services other than the
Products identified by the Licensed Trademarks or similar marks anywhere in the
world.
Section 6.3 Licensor shall take all steps necessary to insure the
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continued registration of, including, but not limited to, filing all timely
renewals of registrations for the Licensed Trademarks.
Section 6.4. Licensee shall cooperate with Licensor in the protection
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of the Licensed Trademarks and in connection therewith shall:
(a) promptly inform Licensor of any third-party use of any Licensed
Trademarks or any infringement or encroachment upon or any misuse whatsoever of
any Licensed Trademarks which comes to Licensee's attention; and
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(b) promptly inform Licensor of any claim against Licensee that the
use of any Licensed Trademark infringes the rights of others or of the
institution of any proceeding against Licensee predicated upon any such claimed
infringement.
Section 6.5. Without limiting the effect of Section 3.1 hereof,
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Licensor and Licensee shall both have the right to take action in respect of any
Products bearing the Licensed Trademarks for any alleged infringements of, or
other impairments to, such Products. The party taking any such action shall
bear all expenses, have complete control over, and recover all proceeds,
settlements and damages with respect to the action. Notwithstanding the
foregoing sentence, the other party retains the right to join such action and
share evenly all expenses, control, proceeds, settlements and damages with
respect thereto, if such other party joins such action within a reasonable time
period following its commencement.
ARTICLE VII
INDEMNIFICATION AND INSURANCE
-----------------------------
Section 7.1. Licensor will hold Licensee harmless from and against
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all suits, claims or actions by third parties against Licensee alleging
trademark infringement arising from Licensee's authorized use of any of the
Licensed Trademarks; provided that Licensee gives Licensor prompt written notice
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of such suit, claim or action and cooperates fully with Licensor in defending
the same.
Section 7.2. Licensee hereby indemnifies and undertakes to defend and
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hold Licensor harmless from and against
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any and all claims, suits, losses, damages, fines, penalties, and/or expenses,
including, but not limited to, attorneys' fees, arising out of or based upon:
(a) Licensee's or its Manufacturing Agents' processing, distribution
or sale of Products bearing a Licensed Trademark; or
(b) any breach by Licensee or its Manufacturing Agents of their
obligations hereunder; or
(c) any proceeding brought by any person, governmental agency or
consumer group in connection with the Products processed, sold or distributed by
Licensee or its Manufacturing Agents bearing or using a Licensed Trademark; or
(d) any violations of any applicable law or regulation or civil
claims relating to the manufacture, processing, sale, distribution, promotion or
advertising of Products bearing or using a Licensed Trademark unless
attributable to Licensor's breach of its obligations under this Agreement.
Licensor may participate in the defense of any such litigation.
Section 7.3. Licensee shall be solely responsible for the acts and
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omissions of those with whom it or its Manufacturing Agents contract for any
aspect of the processing, distribution or sale of Products bearing or using a
Licensed Trademark.
Section 7.4. In order to assure its ability to discharge its
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obligations to Licensor, Licensee agrees that it will maintain throughout the
Term at its expense, comprehensive general liability insurance, including
product liability insurance and contractual liability coverage specifically
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endorsed to cover the indemnity provisions in this Agreement, from a carrier
satisfactory to Licensor, in a minimum amount of Five Million Dollars
($5,000,000) combined single limit for each single occurrence, for bodily injury
and property damage, which shall designate Licensor as an additional insured
therein. The policy shall provide for thirty (30) days prior written notice to
Licensor from the insurer in the event of any material modification,
cancellation or termination. Licensee shall deliver certificates of such
insurance coverage to Licensor prior to the sale and/or distribution of any
Products bearing a Licensed Trademark.
ARTICLE VIII
RELATIONSHIP
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Section 8.1. The relationship between Licensor and the Licensee is
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that of licensor and licensee; the Licensee, its contractors, agents and
employees shall under no circumstances be deemed agents, franchisees,
representatives, employees or partners of Licensor.
ARTICLE IX
TERM AND TERMINATION
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Section 9.1. Subject to the provisions of Sections 9.2 and 9.3
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hereof, the term of this Agreement shall be a period of five (5) years from the
date hereof (the "Initial Term") and for continuous subsequent five (5) year
------------
terms (the "Renewal Period(s)").
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Section 9.2. Licensee may cancel this Agreement upon no less than one
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(1) year's written notice delivered to Licensor
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prior to the end of the Initial Term or the then-effective Renewal Period,
provided that, if Licensee does not give the required notice of termination, the
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Agreement shall be automatically renewed for a subsequent Renewal Period.
Section 9.3. Licensor shall have the right to cancel and terminate
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this Agreement immediately by written notice to Licensee upon the occurrence of
any one (1) or more of the following events:
(a) Licensee fails to deliver to Licensor or to maintain in full
force and effect the insurance referred to in Section 7.4; or
(b) Except as provided in 9.3(c), Licensee or its Manufacturing
Agents fail to commence and diligently pursue the cure of any breach by them of
a material provision of this Agreement within ten (10) days of receipt of
Licensor's written notice of such breach or to effect such cure within twenty
(20) days of receipt of such written notice; or
(c) The failure or refusal of Licensee or its Manufacturing Agents:
(i) to, within ten (10) days of receipt of Licensor's
reasonable written instructions issued regarding the quality standards of
the Licensed Trademarks and Products, respond to such instructions and
commence a diligent attempt at cure, or to effect such cure within twenty
(20) days of receipt of such instructions; or
(ii) to perform, or comply with, any provision contained in
Article V which failure results in the
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production for sale of Products that are unsafe or unfit for human
consumption; or
(d) The insolvency of Licensee; an assignment by Licensee for the
benefit of creditors; the failure of Licensee to obtain the dismissal of any
involuntary bankruptcy or reorganization petition filed against it within sixty
(60) days from the date of such filing; the failure of Licensee to vacate the
appointment of a receiver for all or any part of its business within sixty (60)
days from the date of such appointment; or the dissolution of Licensee; or
(e) An involuntary recall of Products bearing the Licensed Trademarks
for reasons directly or indirectly related to the safety of such Products and
attributable to the negligence or intentional wrongdoing of Licensee or its
Manufacturing Agents; provided that Licensor determines in its reasonable
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judgment that such event has had or is reasonably likely to have a material
adverse effect on the integrity, goodwill, value or strength of any of the
Licensed Trademarks; provided, further, that Licensor may terminate this license
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under this Section 9.3(e) without regard to the immediately preceding proviso
upon or after the third occurrence within any 12-month period of an event
referred to in this Section 9.3(e).
Section 9.4. In the event that this Agreement is terminated or
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expires, Licensee shall, and shall cause its Manufacturing Agents to,
immediately cease all use of the Licensed Trademarks, provided that Licensee may
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dispose of inventory on hand of Products in the ordinary course of business,
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which shall be no longer than 120 days, if Licensee complies with its
obligations under this Agreement. Upon the request of Licensor, Licensee will
immediately remove or obliterate any Licensed Trademark from all signs,
billboards, vehicles and from each and every other place and medium in which
they appear and destroy or surrender to Licensor all other materials of whatever
nature which bear or refer in any way to the Licensed Trademarks.
Section 9.5. Licensee hereby acknowledges and agrees that in the
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event it breaches or otherwise defaults under Articles IV, V or X of this
Agreement, Licensor shall suffer immediate and irreparable harm for which there
is not an adequate remedy at law. Licensee agrees that Licensor shall be
entitled to equitable relief by way of injunction, in addition to any other
remedy available at law or in equity.
ARTICLE X
ASSIGNMENTS AND SUBLICENSES
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Section 10.1. This Agreement shall not be assigned by Licensee, in
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whole or in part, without the prior written consent of Licensor, provided that
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Licensee may assign this Agreement or any part hereof without Licensor's consent
to any person or group of affiliated persons that acquire all or a significant
portion of the sweetened condensed milk business of Licensee and its affiliates
on the date hereof. From and after any permitted assignment pursuant to this
Section 10.1, the assignee shall be deemed to be a Licensee for all purposes
hereof.
Section 10.2. The license granted under Article II, Section 2.1(a) of
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this Agreement shall not be sublicensed by
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Licensee, in whole or in part, without the prior written consent of Licensor,
which consent shall not be unreasonably withheld. In no event shall any
sublicense under this section relieve Licensee of any of its obligations under
this Agreement.
ARTICLE XI
NOTICE
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All notices pursuant to this Agreement shall be in writing and
delivered personally or sent by registered or certified mail, postage prepaid,
return receipt requested, as follows:
If to Licensor: Xxx Xxxx
Southern Foods Group, L.P.
0000 Xxxxx Xxxxxxx
Xxxxxx, XX 00000
With copies thereof to: Xxxxxxx X. Xxxx, President and
Chief Executive Officer
Xxxxxx/Meadow Gold Dairies, Inc.
0000 X. Xxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxx, Xxxx 00000
and
Xxxxxx X. Xxxxx, Esq.
General Counsel
Xxxxxx/Meadow Gold Dairies, Inc.
0000 X. Xxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxx, Xxxx 00000
If to Licensee: Xxxxx Xxxxx, Esq.
General Counsel
Xxxxxx Foods Corporation
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
With a copy thereof to: Xxxxxxx X. Xxxxx, General Counsel
Xxxxxx, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
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Any notice delivered personally shall be deemed to have been given on the date
it is so delivered, and any notice delivered by registered or certified mail
shall be deemed to have been given on the date it is received. Either party by
notice in writing delivered or mailed to the other may change the name or
address or both to which future notices to such party shall be delivered.
ARTICLE XII
MISCELLANEOUS
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Section 12.1. This Agreement and each of the appendices and exhibits
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thereto constitute the entire understanding of the parties with respect to the
subject matter hereof, and supersede and merge all prior agreements and
discussions between the parties relating hereto. No changes in the terms of
this Agreement shall be valid, except when and if reduced to writing and signed
by both Licensee and Licensor.
Section 12.2. All rights and remedies which Licensor or Licensee may
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have hereunder or by operation of law are cumulative, and the pursuit of one
right or remedy shall not be deemed an election to waive or renounce any other
right or remedy. Licensor or Licensee's failure to enforce any provision hereof
on any occasion shall not be deemed to waive any other breach of any provision
hereof. Any waiver of any provision of this Agreement must be in writing and
executed by the waiving party. No waiver of any breach or default under this
Agreement shall waive any other breach or default.
Section 12.3. The parties agree that each provision of this Agreement
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shall be construed as separable and divisible from
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every other provision. Enforceability of any one provision shall not limit the
enforceability, in whole or in part, of any other provision hereof. If any term
or provision of this Agreement (or the application thereof to any party or set
of circumstances) shall be held invalid or unenforceable in any jurisdiction and
to any extent, it shall be ineffective only to the extent of such invalidity or
unenforceability and shall not invalidate or render unenforceable any other
terms or provisions of this Agreement (or such applicability thereof).
Section 12.4. Licensee and Licensor agree to execute such further
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documentation and perform such further actions as may be reasonably requested by
the other party hereto to evidence and effectuate further the purposes and
intents set forth in this Agreement.
Section 12.5. All representations, warranties and indemnities
------------
contained in this Agreement shall survive any independent investigation made by
the benefiting party and the suspension, expiration or termination of this
Agreement.
Section 12.6. This Agreement, irrespective of place of execution or
------------
performance, shall be construed and enforced in accordance with the laws of the
State of Delaware applicable to contracts executed and wholly performed therein.
Any and all actions or proceedings concerning this Agreement shall, if brought
by any party hereto, be instituted and resolved in the courts of the State of
Delaware or any federal court sitting in the State of Delaware. Each party
hereby consents to jurisdiction and service of process in such locale.
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Section 12.7. Article and section headings and captions are for
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convenience only and shall not be used in the construction or interpretation of
this Agreement or any terms herein.
Section 12.8. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original and all of which taken
together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
XXXXXX FOODS CORPORATION
By: /s/ Xxxxxx Foods Corporation
SOUTHERN FOODS GROUP, L.P.
by SFG Management Limited Liability
Company, its General Partner
By: /s/ Southern Foods Group, L.P.
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Appendix A - Licensed Trademarks
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UNITED STATES TRADEMARK U.S. REG. NO.
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MEADOW GOLD (stylized letters) 582,470
Shield Design 644,259
Milkwagon Design 1,412,503
