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EXHIBIT 10.20
TRADEMARK LICENSE AGREEMENT
This Agreement is made effective as of this 1st day of September, 1995 by
and between Foremost Farms USA, Cooperative, a Wisconsin corporation with its
principal place of business at Xxxxx 0, Xxxxxxx, Xxxxxxxxx 00000 (hereinafter,
"Licensor") and Southern Foods Group, L.P. organized under the laws of the State
of Delaware, having a place of business at 3114 Xxxxxxx, Post Office Xxx 000000,
Xxxxxx, Xxxxx 00000 (hereinafter "Licensee").
W I T N E S S E T H
WHEREAS, Licensor represents and warrants that it is the owner of and has
the right to license the trademarks identified in the registrations set forth in
Exhibit A annexed hereto (hereinafter "Trademarks") on certain products;
WHEREAS, Licensee is desirous of obtaining a license to use the Trademarks,
under the terms and conditions hereinafter set forth, in connection with its
marketing and selling of certain dairy products and related goods; and
WHEREAS, Licensor is willing, under the terms and conditions hereinafter
set forth, to have Licensee use the Trademark;
NOW THEREFORE, in consideration of the mutual agreements, promises and
undertakings hereinafter set forth, Licensor and Licensee agree as follows:
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SECTION 1. GRANT OF LICENSE.
(a) Licensor hereby grants to Licensee, during the term of this Agreement
and any extension thereof only, a nonassignable (except as otherwise set forth
at Section 17 herein) exclusive right and license, subject to the terms and
conditions hereinafter set forth, to use the Trademarks in connection with the
production, packaging, sales distribution and advertising of the products
listed on Exhibit B ("Licensed Products") in the territories listed on Exhibit B
("Licensed Territories") attached hereto and incorporated herein. The license
granted pursuant to this Section 1 is limited to the sale and distribution of
Licensed Products to consumers located in the Licensed Territories.
(b) Licensor agrees not to license any other person or entity to use the
Trademarks in the Licensed Territories for the Licensed Products or to use the
Trademarks to sell or distribute the Licensed Products to consumers located in
the Licensed Territories during the Licensed Term or any extension thereof
during which an exclusive license for such Trademarks is outstanding in favor of
Licensee. Notwithstanding anything herein to the contrary, if Licensee shall
abandon or cease using the Trademarks on all Licensed Products in a category for
one year in any State of the Licensed Territory and has not provided to Licensor
notification within that period of an intention to reintroduce at least some of
the Licensed Products in that category within ninety (90) days thereafter and in
fact does not reintroduce those Licensed Products within such ninety (90) day
period, Licensor shall have the right directly or indirectly to use, or to
license others to use, the
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Trademarks for that category of Licensed Products in any such State, provided
that Licensor shall notify Licensee in writing that it is using, or entering
into a license for such product prior to commencement of such use or license.
For the purposes of this Agreement, the categories of Licensed Products are
Licensed Cultured Diary Products, Licensed Frozen Desserts and Licensed Fluid
Milk Products; such categories are further identified on Exhibit B.
(c) Licensee shall have a period of twelve (12) months from the date hereof
to commence use of the Trademarks on the Licensed Products in the States of
Mississippi and Alabama. Failure to commence use of the Trademarks in either of
these two states within the time permitted shall terminate any and all rights of
License with respect to the use of the Trademarks in the state where the use has
not commenced.
(d) Licensee shall have a period of two (2) years from the date hereof to
commence use of the Trademarks on the Licensed Products in the Option
Territories set forth in Exhibit B. Failure to commence use of the Trademarks on
the Licensed Products in any county included in the Option Territories within
the time permitted shall terminate any and all rights of the License with
respect to use of the Trademarks on Licensed Products in such county in the
Option Territories. In consideration for the option rights, Licensee will pay
Licensor One Thousand Five Hundred Dollars ($1,500.00) ("the Option Fee") on or
before August 31, 1995. If Licensee exercises its option within the two (2) year
period, this License shall be extended to the Option Territories for the
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Licensed Products and Licensee shall pay Licensor as provided in Section 6
hereof.
SECTION 2. PULL AUTHORITY OF PARTIES.
Licensor and Licensee each represents that it has the right and power to
enter into this Agreement and to perform all obligations hereunder.
SECTION 3. USE BY OTHER LICENSEES.
Licensor shall use its best efforts to ensure that no other -third party,
which is a licensee of Licensor, distributes or otherwise sells Licensed
Products bearing the Trademarks in the Licensed Territories.
SECTION 4. LICENSEE WARRANTY.
Licensee warrants and guarantees that during the Licensed Term and any
extension thereof,
(i) all Licensed Products using the Trademarks shall be produced,
packaged, sold and distributed strictly in accordance with acceptable,
reasonable commercial standards and conform to applicable federal and state
law, including, without limitation, United States Food & Drug
Administration regulations and food manufacturing practices; and
(ii) be free of impurities and defects so as to be in compliance with
applicable law and regulations and be
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fit for their intended purpose while possessed or held by Licensee.
SECTION 5. QUALITY OF GOODS AND INSPECTION.
Licensor shall have the right to inspect and test all Licensed Products
using the Trademarks advertised, sold and distributed and all literature,
package and label materials (hereinafter "Materials") therefor. Licensee agrees
that the quality of all the Licensed Products to be advertised, sold and
distributed using the Trademark will be maintained in compliance with all
applicable Federal and State food and drug regulations. Licensor shall have the
right, during normal business hours and upon reasonable notice, to inspect the
premises where processing and packaging of the Licensed Products is conducted
and to spot check and test any of the Licensed Products, and to take any other
action which is reasonably necessary or proper to assure Licensor that the
applicable quality standards described at Section 4 herein are being followed in
all material respects. Licensee shall, upon reasonable written request, and at
least upon introduction, submit to Licensor samples of all Licensed Products
sold or distributed using the Trademarks so that Licensor can assure itself that
the standards required to be maintained for the Licensed Products under the
terms of this Agreement are being maintained. Licensee shall, upon reasonable
written request by Licensor, submit to Licensor samples of all the Materials
using the Trademarks so that Licensor can assure itself that the standards
required to be maintained for the Materials under the terms of this Agreement
are being
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maintained. Any such Materials shall be deemed approved if Licensor fails to
respond to Licensee within fifteen (15) days of its receipt of a sample. In the
event of any modification of the Licensed Products or Materials, Licensee agrees
to advise Licensor and upon the written request of Licensor, Licensee shall
furnish samples of each of such modified Licensed Products and Materials prior
to or coincidental with the distribution of such modified Licensed Products or
Materials.
Licensee shall, at least once annually on each anniversary of this
Agreement, at Licensee's expense, submit to Licensor the report of an
independent certified laboratory mutually agreeable to the parties. Should
Licensor reasonably determine that the quality of the Licensed Products or
Materials or the manner of use of the Trademarks do not meet the standards set
forth in Section 4, Licensor will notify Licensee of its objections in writing.
Licensee will have sixty (60) days from the date of its receipt of such
notification to institute modifications and resubmit to Licensor for approval,
which will not be unreasonably withheld. In the event that Licensor must conduct
quality control inspection in subsequent years, Licensee shall pay a Quality
Control charge in each such year of Two Thousand Dollars ($2,000.00).
SECTION 6. ROYALTIES FEES.
(a) The consideration to be paid by Licensee to Licensor for the Licensed
Products is (i) a minimum annual royalty of Eleven Thousand Two Hundred Fifty
Dollars ($11,250.00) for the first year of this Agreement, (ii) a minimum annual
royalty of Fifteen
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Thousand Dollars ($15,000.00) for the second year of this Agreement, (iii) a
minimum annual royalty of Eighteen Thousand Dollars ($18,000.00) for years three
(3) and four (4) of this Agreement, and (iv) a minimum annual royalty of Twenty
Five Thousand Dollars ($25,000.00) for the fifth (5th) year of this Agreement
and for the remainder of the initial term, i.e. September 1, 2000 through August
31, 2024. Beginning September 1, 1995, Licensee shall pay to Licensor
one-quarter of one-cent (1/4 cents) per gallon of the Licensed Fluid Milk
Products using the Trademarks sold in the Licensed Territories and one and
one-half cents (1 1/2 cents) per gallon of Licensed Frozen Dessert Products and
Licensed Cultured Dairy Products using the Trademarks sold in the Licensed
Territories. For the purpose of this Section 6(a), thirty-six, 3 1/2 oz.
novelties equals one gallon and one pound equals one pint. The minimum annual
royalties provided for in this Section 6(a) shall be credited against anal
earned royalties accrued during each year. Earned royalties shall accrue from
and after September 1, 1995 and shall become due and payable on or before the
last day of the second calendar month after the end of each calendar quarter as
provided below. The per gallon royalty shall be adjusted after the fifth year
and each fifth year (each such fifth year hereinafter called an "Index Year")
thereafter including each year during any renewal term by multiplying the per
gallon royalty by a royalty multiplier. The royalty multiplier shall be one
hundred percent (100%) for earned royalties accrued in the period from
September 1, 1995 through August 31, 2000. The royalty multiplier for Earned
Royalties accrued during the Index
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Year beginning September 1, 2000 and ending august 31, 2001 shall be the sum of
the previous Index Year's royalty multiplier and the twelve month index change
(either positive or negative) as reported in the previous Index Year's January
issue of the Consumer Price Index, U. S. Department of Labor in the column
designated "'Unadjusted' percent change in CPI for all urban consumers" for the
expenditure category identified "All Items"; provided, however, that the royalty
multiplier shall be in no event be less than one hundred percent (100%) Licensee
shall render to Licensor a written report within two (2) months following the
end of each calendar quarter during the initial Licensed Term or extended
Licensed Term of this Agreement, stating the total number of Licensed Products
sold during the preceding quarter and after August 31, 1996, the earned royalty
due. The royalties payable to Licensor hereunder shall accompany each such
report in the form of a check drawn on a United States bank in U.S. dollars.
(b) Licensee shall pay Licensor a one-time fee as reimbursement for the
expenses, costs and fees expended by Licensor in association with the
preparation and consummation of this Agreement, in an amount equal to Nine
Thousand Five Hundred Dollars ($9,500.00), said amount to be paid to Licensor
upon full execution of this Agreement along with the first year minimum annual
royalty payment provided for in Section 6(a), and the option Fee for the Option
Territories.
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SECTION 7. CONFIDENTIALITY.
The information furnished by either party hereto, with the exception of
information previously disclosed to the public by the disclosing party, shall be
considered confidential and shall not be disclosed to third parties except to
the extent that such information as a whole
(a) was in the possession of or known to the receiving party prior to
the disclosure thereof,
(b) is or becomes public knowledge by means other than a breach of
confidentiality by the receiving party,
(c) is thereafter received by the receiving party from a third party
who did not require the receiving party to keep it in confidence and who
the receiving party did not know to be bound by a confidentiality agreement
with or other obligation of secrecy to the non-disclosing party, or
(d) is required by the receiving party to be disclosed to appropriate
governmental and regulatory authorities. Such confidential information
shall not be unnecessarily communicated within either party's own operation
and shall be used by the receiving party only in connection with the
production and processing of Licensed Products sold or distributed using
the Trademarks. This obligation of confidentiality shall survive the
termination of this Agreement for any reason.
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SECTION 8. INDEMNITY.
Licensor does not assume any liability to Licensee or third parties with
respect to the Licensed Products manufactured, distributed or sold by Licensee
under the Trademarks, and Licensee will indemnify and hold harmless Licensor
against all losses, damages, costs, including reasonable attorneys' fees and
costs, fines and penalties, incurred through claims (other than claims based on
Licensee's use of the Trademarks pursuant to and in compliance with this
Agreement) of third persons, including any governmental authority or agency,
against Licensor involving the processing, distribution or sale of the Licensed
Products by Licensee or any subsidiaries, parents, affiliates, partners or other
persons or entities controlled by, or in control of, Licensee. If any claim is
made against Licensor or its successors or assigns, by reason of any act or
omission of Licensee, its subsidiaries, parents, affiliates, officers,
directors, agents, servants or employees, connected with the use of the
Trademarks (other than Licensee's use thereof pursuant to and in compliance with
this Agreement), Licensee agrees to indemnify and hold harmless Licensor and its
successors and assigns from any such claims and from any expenses incident
thereto.
SECTION 9. INSURANCE.
Licensee agrees that it will maintain throughout the Licensed Term of this
Agreement, and any extension or renewal thereof, at its expense, comprehensive
general liability insurance, including product liability insurance on an
occurrence basis, from an
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insurance company reasonably satisfactory to Licensor, in a minimum amount of
Two Million Dollars ($2,000,000) combined single limit for each single
occurrence, for bodily injury and property damage, which policy shall designate
Licensor as an additional insured therein, and shall be endorsed to provide
contractual liability insurance in the amount specified above, specifically
covering Licensee's obligation to indemnify Licensor pursuant to Section 8
herein. A certificate of insurance for such coverage shall be delivered to
Licensor prior to the distribution of any Licensed Products under the
Trademarks, which certificate shall specify that Licensor shall be given at
least thirty (30) days prior written notice by the insurer in the event of any
material modification, cancellation or termination of coverage.
SECTION 10. FORCE MAJEURE.
Except for the obligation of Licensee to pay royalties which accrued to
Licensor prior to the occurrence of an act of force majeure as described below
and which become payable during such occurrence, neither party to this Agreement
shall be held liable for failure to comply with any of the terms of this
Agreement, nor shall any such failure be deemed a default or give rise to a
right to terminate this agreement, when such failure has been caused by an act
of force majeure such as a fire, labor dispute, strike, war, insurrection,
government restrictions, or act of God beyond the control and without fault on
the part of the party involved, provided such party uses due diligence to remedy
such default. However, if such failure to comply continues for more than sixty
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(60) days after cessation of the reason for such failure, unless the party in
default has, within said 60-day period, or such longer period as may be
necessary, taken such action as may be necessary to remedy such default, the
non-defaulting party shall have the right to terminate this Agreement, and in
the event of such termination neither party shall have any further rights or
obligations hereunder, except for the obligations of Licensee set forth in
Sections 7, 8, and 13 hereof and the obligations of Licensee to pay any royalty
installment due Licensor for the year that such termination takes place.
SECTION 11. INITIAL TERM/RENEWAL.
Unless terminated earlier pursuant to the provisions of Section 12, the
initial term of this Agreement ("Licensed Term") shall be for a period of
twenty-five (25) years, commencing at 12:00 a.m. Pacific standard time on
September 1, 1995 and terminating at 11:59 Pacific standard time on August 31,
2224. Licensee shall have the right to renew and extend the Licensed Term for
like twenty-five (25) year periods for any or all of the following product
categories of the Licensed Products, provided (a) that Licensee is not in
default or breach of any of the terms of this Agreement for which a cure is not
being diligently pursued, (b) that an event of termination as set forth in
Section 12 below has not occurred, (c) that during the immediately preceding
five (5) year period, Licensee sold in the Licensed Territories those categories
renewed by Licensee in excess of 500,000 gallons of Licensed Frozen Dessert
Products, 1.5 million gallons of
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Cultured Dairy Products and 4 million gallons of Licensed Fluid Milk Products,
and (d) that at least eight (8) percent of such sales required in subparagraph
(c) occurred during the last year of the Licensed Term. During the Licensed
Term, commencing on August 31, 1996 and annually thereafter, Licensee shall
provide to Licensor within sixty (60) days after the end of each calendar year a
written report setting forth in detail the quantity of each Licensed Product
sold using any of the Trademarks for the immediately preceding anniversary year
of this Agreement.
Licensee shall provide to Licensor in writing its intent to renew at least
one (1) year prior to the expiration of the Licensed Term. All terms and
conditions of this Agreement shall continue without change in any such extension
or renewal period. In the event Licensee fails to submit to Licensor timely
written notice of its intent to renew as provided for herein, Licensor shall
provide Licensee with written notice of Licensee's failure to seek renewal, from
which notice Licensee shall have sixty (60) days thereafter to effect its notice
to renew as provided for herein.
SECTION 12. TERMINATION.
(a) Except as otherwise provided herein, this Agreement shall remain in
full force and effect during the Licensed Term and any extension or renewal
thereof subject to the provisions set forth in subparagraphs (i) - (v) below:
(i) If Licensee makes any assignment of substantially all of its
property, assets or business for the benefit of creditors, or if a trustee
or receiver is
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appointed to administer or conduct its business or affairs, or if it is
adjudged in any legal proceeding to be either a voluntary or involuntary
bankrupt, or if a voluntary or involuntary petition is filed by or against
Licensee under any bankruptcy or insolvency law or under the reorganization
provisions of any law of like import, or a receiver of Licensee or of
Licensee's property is appointed, then the rights granted herein shall
forthwith cease and terminate without prior notice or legal action by
Licensor, provided, however, in the event of an involuntary petition being
filed, Licensee shall have ninety (90) days to discharge said petition;
(ii) Should Licensee materially fail to comply with any other
provision of this Agreement, Licensor may terminate this Agreement upon not
less than thirty (30) days written notice to Licensee; but, if the Licensee
shall correct such default during such thirty (30) day period, or shall
begin to take and diligently pursue all action reasonably necessary to
correct such failure during such thirty (30) day period and thereafter
until the failure has been corrected, the notice of termination shall be of
no further force or effect. If Licensee should fail to comply in a material
way with any of its obligations three or more times in any consecutive
twelve (12) month period, such repeated failures shall collectively in and
of themselves be a failure to comply
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in a material way with an obligation hereunder, regardless of the
correction of such failures;
(iii) Licensor may terminate this Agreement upon not less than fifteen
(15) days written notice to Licensee if any Licensed Product using the
Trademarks shall be recalled or withdrawn from the market, provided,
however, if the Licensee shall correct such defect during such fifteen
(15) day period, or shall begin to take and diligently pursue all action
reasonably necessary to correct such defect during such fifteen (15) day
period and thereafter until the defect has been corrected, the notice of
termination shall be of no further force or effect;
(iv) Licensor may terminate the license provided for in this Agreement
as to a particular State of the Licensed Territories effective upon
Licensee's receipt of notice if Licensee shall abandon or cease using the
Trademarks for one year in any State in the Licensed Territory as provided
in Section 1(b) hereof.
[Balance of Page Left Blank Intentionally]
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(b) Licensee agrees that, upon termination of this Agreement, whether by
reason of its failure to extend or renew pursuant to Section 11 or for any other
reason, Licensee will no longer use in any manner whatsoever any of the
Trademarks, or any variations thereof, as part of its name or otherwise, or use
any trademark, trade name, word, symbol, label, design, package, display, or
slogan confusingly similar to any of the Trademarks. However, Licensee shall
have ninety (90) days thereafter to dispose of any existing packaging or
finished goods inventory using the Trademarks.
SECTION 13. USE OF TRADEMARKS.
Licensee undertakes to comply with all laws pertaining to trademarks in
force in the United States including the use of proper notices to indicate that
the Trademarks are registered in the United States Patent and Trademark Office.
Licensee agrees that all manner of use by Licensee of the Trademarks, including,
without limitation, all advertising, promotional programs, sales brochures,
business cards, stationary and telephone directory listings, shall at all times
be subject to review by Licensor. Licensee further agrees that it will cause to
appear on labels, packages or other required places any statements, notices or
matters which may be required to appear under any applicable law, regulation or
rule, and that any and all use by Licensee of the Trademarks shall be in
accordance with all applicable laws, regulations and rules. Licensee shall cause
to appear in the upper right hand corner next to at least the most prominent use
of any of
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the Trademarks the symbol "(R)" when used on packages and, when appropriate, on
other uses indicating that the Trademark has been registered in the United
States Patent and Trademark Office. Licensee shall preserve the appearance of
the Trademarks consistent with the registrations of Exhibit A wherever and
whenever they are used. Licensee agrees not to manufacture, produce or sell any
Licensed Products under any trademark, trade name, word, symbol, label, design,
package, display or slogan that is confusingly similar to any of the Trademarks.
Licensor acknowledges that Licensee manufactures, produces and sells the same or
similar products under private label and other labels. Licensor represents that
it is the owner of the Trademarks and each of the registrations of Exhibit A and
it is not aware of any valid liens existing against the Trademarks or of any
infringers thereof.
SECTION 14. OWNERSHIP OF TRADEMARKS.
Nothing contained in this Agreement shall be deemed in any way to confer on
Licensee any proprietary interest in any of the Trademarks. Licensor represents
and warrants that it owns and holds the exclusive right, title and interest in
and to the Trademarks and the rights to use thereof. Licensee acknowledges
Licensor's exclusive right, title and interest in and to the Trademarks and the
rights to use the Trademarks subject to the rights granted to Licensee herein
and Licensee agrees not at any time to do or cause to be done any act or thing
contesting or in any way impairing or tending to impair any part of such rights,
title or interest during the Licensed Term or thereafter. In
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connection with the use of the Trademarks, Licensee shall not in any manner
represent that it has any ownership in the Trademarks or registration thereof,
and Licensee acknowledges that use of the Trademarks shall not create in
Licensee's favor any right, title or interest in or to the Trademarks other than
Licensee's rights to use them in accordance with this Agreement, but all uses of
the Trademarks by the Licensee shall inure to the benefit of Licensor. Except as
provided in Section 12, upon termination of this Agreement, Licensee will cease
and desist from all use of the Trademarks and Materials using the Trademarks in
any way, and will deliver to the Licensor, or its duly authorized
representatives, all such materials and papers upon which the Trademarks are
used.
SECTION 15. MAINTENANCE OF TRADEMARK.
Licensor will maintain and renew at its cost the Trademark registrations of
Exhibit A during the term of this Agreement. Licensee agrees, at the request of
Licensor and without additional cost to Licensee, to execute any and all
documents and provide such other assistance as may be reasonably necessary or
desirable in connection with the registration and maintenance of the Trademarks.
SECTION 16. INFRINGEMENT.
Licensee understands and agrees that Licensor shall not have any obligation
to police any area where Licensee sells Licensed Products using the Trademarks
against the infringements by others of any of the Trademarks. However, upon
learning of an apparent
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infringement situation, Licensee agrees to notify Licensor in writing of the
name and address, and to furnish such other pertinent information as may be
reasonably available, of any third party who may be infringing or otherwise
violating any of Licensor's rights in and to any of the Trademarks, or of any
third party who makes a claim that use of any of the Trademarks infringes upon
or otherwise violates any property or rights of any nature of said third party.
Licensor shall notify Licensee promptly in writing of the name and address, and
to furnish such other pertinent information as may be available, of any third
party who may be infringing or otherwise violating any of Licensor's rights in
and to any of the Trademarks in the Licensed Territories. Licensor shall have
the sole right to determine whether or not any action shall be undertaken on
account of such apparent infringement and Licensee agrees to cooperate with
Licensor, at Licensor's expense, in all reasonable respects in any action which
Licensor, at its sole discretion, deems advisable or necessary to protect
Licensor's rights in the Trademarks or in the defense of a claim by a third
party that use of any of the Trademarks infringes upon or otherwise violates any
property rights of any nature of said third party. In the event that Licensee
learns of any direct infringement of the Trademarks in the Licensed Territories
by the sale of any of the licensed Products by a third party, other than one
under Section 3, and such third party has infringing sales in excess of two (2%)
percent of those of Licensee in the particular State which is part of the
Licensed Territories, Licensor agrees to take such action as is necessary to
eliminate the infringement or
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delegate the same, at Licensor's sole discretion, to Licensee to pursue at
Licensee's expense. The result of any such action or inaction by Licensor shall
not relieve Licensee of its obligations hereunder, unless such resolution
precludes the use of the Trademarks in connection with the Licensed Products, in
which event Licensee shall have the option to terminate this Agreement, provided
that any such termination will not affect any remedies among the parties at law
or in equity. Nothing in this Section 16 shall relieve Licensor of the
obligations under Section 3 of this Agreement.
SECTION 17. ASSIGNMENT.
Licensee acknowledges and agrees that this Agreement is personal to
Licensee and that Licensee may not assign this Agreement without the prior
written consent of Licensor, and any such attempted assignment shall be void and
of no effect except that Licensee may assign this Agreement:
(i) to a wholly owned affiliate provided that Licensee agrees to
guarantee the obligations of the wholly owned affiliate;
(ii) to a financially viable transferee with a net worth of no less
than five million dollars ($5,000,000.00), as long as such transferee
agrees to be bound by the terms of this Agreement, including without
limitation the quality control standards, in which event Licensee shall be
discharged of its obligations hereunder. A change in control or ownership,
including
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but not limited to the transfer of fifty percent (50%) or more of the
voting rights of all securities of Licensee, shall be deemed an assignment
hereunder. Licensee shall not have the right to sublicense any of the
rights herein granted to Licensee by Licensor except to one or more wholly
owned subsidiaries of Licensee for which Licensee agrees to guarantee the
obligations thereof, provided however Licensee may cause the Licensed
Products to be produced for Licensee by others and may cause the
distribution of the Licensed Products by others. This Agreement may be
assigned by Licensor at any time without the approval of Licensee. Licensor
agrees to provide Licensee with reasonable advance notice of its intent to
assign, but any such failure of Licensor to notify Licensee shall be of no
effect. Subject to the foregoing, this Agreement shall inure to the benefit
of, and be binding upon, the parties and their respective successors and
assigns.
SECTION 18. NO JOINT VENTURE.
It is not the intention of the parties to create a partnership, joint
venture, principal-agent or other relationship for any purpose whatsoever.
Neither party is authorized to or has the power to obligate or bind the other
party in any manner whatsoever, except as may be expressly provided herein.
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SECTION 19. REMEDIES.
In the event Licensee or Licensor breaches or otherwise defaults under the
terms of this Agreement, the non-defaulting party shall be entitled to any and
all remedies provided at law or in equity, including but not limited to,
injunctive relief.
SECTION 20. RESERVATION OF USE.
During the term of this Agreement and any extension or renewal thereof,
Licensor and its wholly owned subsidiaries may use any of the Trademarks in the
Licensed Territories in connection with any products other than the Licensed
Products.
SECTION 21. ENTIRE AGREEMENT.
This Agreement may be amended only by a writing duly executed by each party
in the same manner as this Agreement is executed. This Agreement contains and
embodies the entire agreement and understanding of the parties hereto and
supersedes any and all agreements as to the Trademarks entered into between the
parties prior to or as of this date.
SECTION 22. WAIVER OF BREACH.
The failure of any party to object to, or to enforce a cure of, any breach
of or non-compliance with any provision or condition of this Agreement, shall
not operate or be construed as a lapse of, or tacit agreement to remove or
reform, any obligation hereunder, or as a waiver of any right or remedy on
occurrence of any other breach of or noncompliance with the same provision or
condition, or
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as a waiver of any right or remedy with respect to any other provision or
condition of this Agreement.
SECTION 23. SEVERABILITY.
If any provision, or portion of any provision, of this Agreement should be
determined by any court or tribunal of competent jurisdiction to be invalid,
illegal or unenforceable, in whole or in part, and such determination should
become final, then such provision or portion shall be deemed to be severed or
limited, but only to the extent required to render such provision, or portion of
such provision, and the remaining provisions of this Agreement, enforceable, and
this Agreement, as thus amended, shall be enforced to give effect to the
intention of the parties hereto insofar as that is possible.
SECTION 24. NOTICES.
All notices pursuant to this Agreement shall be in writing and delivered
personally or sent by overnight delivery service or by registered or certified
mail, postage prepaid, return receipt requested, as follows:
If to Licensee: Southern Foods Group, L.P.
3114 Xxxxxxx
Post Office Xxx 0000000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxx
If to Licensor: Foremost Farms USA, Cooperative
Xxxxx 0
Xxxxxxx, Xxxxxxxxx 00000
Attention: President
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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 overnight delivery service
or 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.
SECTION 25. APPLICABLE LAW.
This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Wisconsin except to the extent such laws are preempted or
made inapplicable by federal law, in which event, the laws of the United States
of America will apply.
SECTION 26. PRIOR AGREEMENTS.
This Agreement shall replace and supersede any and all prior agreements,
written or oral, relating in any way to the Trademarks.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed and their seals to be affixed as of the day and year first above
written.
SOUTHERN FOODS GROUP, L.P.
By: SFG Management Limited
Liability Company, its general
partner
By: /s/ XXXX XXXXXXXX
-------------------------------
Print Name: Xxxx Xxxxxxxx
-----------------------
Title: President and Chief
Executive Officer
FOREMOST FARMS USA, COOPERATIVE
By: /s/ XXXXXX X. XXXXXXXX
-------------------------------
Print Name: Xxxxxx X. Xxxxxxxx
-----------------------
Title: President
---------------------------
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EXHIBIT A
TRADEMARKS REGISTERED
"F" with label design U.S. Reg. No. 778,823
FOREMOST and "f" design U.S. Reg. No. 733,504
FOREMOST (Script Style Lettering) U.S. Reg. No. 1,277,222
FOREMOST (Block Style Lettering) U.S. Reg. No. 601,918
FOREMOST U.S. Reg. No. 301,356
FOREMOST and "f" design U.S. Reg. No. 797,554
"f" FOREMOST and design U.S. Reg. No. 1,614,047
FOREMOST "f" and design U.S. Reg. No. 1,745,931
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EXHIBIT B
LICENSED TERRITORIES
The States of Texas, Louisiana, Arkansas, Oklahoma, Mississippi, and
Alabama.
OPTION TERRITORIES
The following counties in the State of Florida:
Escambia Xxxxxxx
Santa Xxxx Xxxxxxx
Okaloosa Gulf
Xxxxxx Liberty
Xxxxxx Xxxxxxxx
Washington Wakulla
Bay Xxxx
LICENSED CULTURED DAIRY PRODUCTS
Cultured Dairy Products including sour cream, light sour cream, non-fat
sour cream, yogurt, cottage cheese, yogurt dips, sour cream dips, creamers,
non-dairy creamers
LICENSED FROZEN DESSERT PRODUCTS
Frozen Desserts including ice cream, ice milk, sherbet, ice cream
novelties, frozen novelties, frozen juice products, light products, non-fat
products, non-dairy novelties, soft serve mix, water, ice products and
products consisting principally of any of the above.
LICENSED FLUID MILK PRODUCTS
Fluid Milk Products including HVD milk, UHT milk, low fat milk, skim milk
(all include chocolate), juices, juice drinks and flavored drinks
All definitions of Licensed Products are limited to those products set forth and
for which Licensor has approved or in the future approves product specifications
and formulas. Licensor shall not unreasonably withhold approval of added
products which related or otherwise conform to a particular category.
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