Exhibit 10.44
TRADEMARK LICENSE AGREEMENT
between
THE XXX. XXXXXX' BRAND, INC.
a Delaware corporation
and
NONNI'S FOOD COMPANY, INC.
a Florida corporation
DATED: February 21, 2001
TABLE OF CONTENTS
RECITALS .....................................................................1
AGREEMENT ....................................................................1
1. DEFINITIONS.......................................................1
2. GRANT OF LICENSE..................................................3
3. RESERVATION OF RIGHTS AND PRODUCT RIGHTS..........................3
4. LICENSE TRANSFER..................................................4
5. LICENSE FEE AND ROYALTIES.........................................5
6. INTENTIONALLY OMITTED.............................................5
7. INTENTIONALLY OMITTED.............................................5
8. NONNI'S BRANDS REPORTS............................................5
9. DEVELOPMENT OF ROYALTY BEARING PRODUCTS...........................6
10. ADVERTISING AND PROMOTION REQUIREMENTS............................7
11. ROYALTY BEARING PRODUCTS APPROVAL STANDARDS.......................8
12. USE OF LICENSED NAMES AND MARKS ..................................9
13. INFRINGEMENT.....................................................10
14. INSURANCE........................................................10
15. CONFIDENTIALITY..................................................10
16. TERM AND TERMINATION .........................................11
17. DISPOSAL OF INVENTORY UPON EXPIRATION............................13
18. FINAL STATEMENT UPON TERMINATION OR EXPIRATION...................14
19. REPRESENTATIONS AND WARRANTIES...................................14
20. INDEMNIFICATION..................................................14
21. NOTICES..........................................................15
22. GENERAL PROVISIONS...............................................16
EXHIBIT "A" LICENSED NAMES AND MARKS
EXHIBIT "B" ROYALTY BEARING PRODUCTS
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TRADEMARK LICENSE AGREEMENT
THIS AGREEMENT is made and entered into this 21st day of February 2001, by
and between THE XXX. XXXXXX' BRAND, INC. a Delaware corporation ("MFB"), and
NONNI'S FOOD COMPANY, INC. a Florida corporation (" Nonni's").
RECITALS
WHEREAS, on January 3, 2000 MFB and Nonni's entered into an agreement
("Retail Agreement") in which Nonni's received a license to develop,
manufacture, package, distribute and sell under the Xxx. Xxxxxx' trademarks,
service marks, and trade names a ready-to-eat shelf stable cookie product
through designated retail channels.
WHEREAS, MFB is the sole owner of certain trademarks, service marks, and
trade names, which have become associated with high quality food products.
WHEREAS, Nonni's desires to acquire a separate license from MFB to
develop, manufacture, package, distribute and sell to the food service industry,
through designated food service distribution channels, high quality,
pre-packaged ready-to-eat pre-baked cookie products utilizing the Xxx. Xxxxxx
trademarks, service marks and trade names; and
WHEREAS, MFB desires to license to Nonni's the right to develop,
manufacture, package, distribute and sell to the food service industry a
ready-to-eat pre-baked cookie product through designated food service
distribution channels subject to the provisions of this Agreement;
AGREEMENT
NOW THEREFORE, in consideration of the covenants and agreements contained
herein and other valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS
(a) "Designated Distribution Channels" shall mean restaurants,
universities, schools, hospitals, corporate feeder programs, food service
distributors, prisons, stadiums, athletic clubs, airlines (excluding
United, TWA and Northwest ) an other similar food service pre-baked food
and snack food and snack food service distribution channels.
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(b) "Initial Term" shall have the meaning set forth in Section 16
hereof.
(c) "Licensed Names and Marks" shall mean those trademarks, trade
names and service marks identified on Exhibit A hereto.
(d) "Net Sales" shall mean gross sales minus cash discounts for
early payments.
(e) "Option" shall have the meaning set forth in Section 16 hereof.
(f) "Packaging Specifications" shall mean those specifications for
packaging approved by MFB pursuant to Section 11 hereof.
(g) "Product Specifications" shall mean those specifications for
Royalty Bearing Products approved by MFB pursuant to Section 11 hereof.
(h) "Protected Information" shall mean MFB recipes, formulations,
systems, programs, procedures, manuals, confidential reports and
communications, marketing techniques and arrangements, purchasing
information, pricing policies, quoting procedures, financial information,
employee, customer, supplier and distributor data, all of the materials or
information relating to the business or activities of MFB which were not
otherwise known to Nonni's prior to the commencement of the negotiations
leading to this Agreement, or generally known to others engaged in similar
businesses or activities, and all modifications, improvements and
enhancements which are derived from or relate to Nonni's access to, or
knowledge of any of the above enumerated materials or information (whether
or not any of the above are reduced to writing or whether or not
patentable or protectable by copyright) which Nonni's receives, receives
access to, conceives or develops or has received, received access to,
conceived or developed, in whole or in part, directly or indirectly, in
connection with Nonni's license hereunder. Information which is
independently developed by Nonni's, or which was already in the possession
of Nonni's prior to the date of this Agreement and which was not obtained
in connection with the transactions contemplated by this Agreement, or
information which is or becomes publicly available without breach of (i)
this Agreement, (ii) any other agreement or instrument to which Nonni's is
a party or a beneficiary, or (iii) any duty owed to MFB by Nonni's shall
not be considered Protected Information hereunder.
(i) "Royalty Bearing Product(s)" shall mean the food products
described on Exhibit B hereto, that are sold as commercially pre-baked
cookies using the Licenced Names and Marks.
(j) "Royalty Default Rate" shall mean the interest rate which is the
lesser of (i) the annual rate from time to time publicly announced by
Citibank, N.A. at its "base rate" or "prime rate" (or any successor rate)
plus two percent (2%) or (ii) the highest applicable legal rate.
(k) "Running Royalty" or "Running Royalties" shall mean the royalty
or
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royalties from time to time payable pursuant to Section 5.
(l) "Territory" shall mean The United States of America, Canada, and
Mexico.
2. GRANT OF LICENSE
(a) Grant. Subject to the terms and conditions of this Agreement,
MFB hereby grants to Nonni's, and Nonni's hereby accepts the grant by MFB
of, the exclusive right and license to use the Licensed Names and Marks to
manufacture and market Royalty Bearing Products through Designated
Distribution Channels throughout the Territory. Subject to the terms and
conditions of this Agreement, MFB further grants to Nonni's a
NON-EXCLUSIVE right to sell Royalty Bearing Products outside the
Territory, but only to a United States based company, or its direct
subsidiary, with which Nonni's is then doing business in the United
States. Provided, however, that if MFB grants a food service license to a
third party applicable to an area outside the Territory, any sales
activities by Nonni's under this Agreement, within the area covered by
such third-party license, shall cease within 30 days of notice to Nonni's
by MFB. Except as stated in Section 3, MFB shall not compete with Nonni's
in the (i) use of any trademark, service xxxx or tradename in marketing
Royalty Bearing Products in Designated Distribution Channels in the
Territory or (ii) license any third party to use the same in marketing any
Royalty Bearing Products in Designated Distribution Channels in the
Territory.
(b) First Right to Offer - Products. If at any time during the
Initial Term (or a current Option Period) MFB determines to offer a
pre-baked shelf stable cookie commodity marketed through the Designated
Distribution Channels, for countries outside the Territory to a third
party manufacturer, licensee or marketing company, prior to offering the
pre-baked shelf stable cookie commodity marketed through the Designated
Distribution Channels to a non-related party by any means, MFB shall
notify Nonni's and provide Nonni's a sixty (60) day period of time
thereafter during which MFB shall negotiate exclusively in good faith with
Nonni's for the license to sell in the Territory the pre-baked shelf
stable cookie commodity marketed through the Designated Distribution
Channels. The terms and conditions upon which MFB grants a license, if
any, for a pre-baked shelf stable cookie commodity marketed through the
Designated Distribution Channels pursuant to this Section shall be as
negotiated by MFB and Nonni's during such 60 day period; provided, that
MFB is only free to reject Nonni's offer if an agreement cannot be reached
as to the Licensing Fee and the Running Royalty and after such rejection,
MFB can negotiate with any third party for the license to sell the
pre-baked shelf stable cookie commodity marketed through the Designated
Distribution Channels and accept such third party offer only if it exceeds
Nonni's best offer. Any agreement reached with Nonni's during such 60 day
period shall be documented in a separate agreement or addendum to this
Agreement and shall become effective only when signed by all parties.
3. RESERVATION OF RIGHTS AND PRODUCT RIGHTS
(a) Reservation. MFB reserves all rights with respect to the
Licensed Names and
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Marks not expressly licensed to Nonni's hereunder, and MFB may use or
grant licenses to others to use the Licensed Names and Marks in any other
manner or in connection with any goods or services, other than for sale of
Royalty Bearing Products in Designated Distribution Channels in the
Territory. Without limiting the foregoing, the license granted pursuant to
this Agreement shall be exclusive to Nonni's except that MFB shall not be
precluded from and hereby expressly retains the right to: (i) own,
operate, and grant or license others the right to own and operate Xxx.
Xxxxxx Cookies stores which sell cookie, bakery and/or ice cream products
(whether or not such products are Royalty Bearing Products) under the
Licensed Names and Marks at locations within the Territory on such terms
and conditions, as MFB, in its sole discretion, deems appropriate, (ii)
offer for sale and sell, and license others to offer for sale and sell,
any products or services under the Licensed Names and Marks which are not
Royalty Bearing Products, (iii) offer for sale and sell, pre-baked
products to businesses for their use as gifts, incentives, promotions,
etc. to customers and employees, and (iv) exclusively offer for sale and
sell, pre-baked products to United Airlines, TEA and Northwest Airlines.
MFB and Nonni's shall each have the right to offer for sale and sell,
Royalty Bearing Products to all other airlines in the Territory. During
the term of this Agreement, Nonni's shall have the exclusive right to use
the recipes which it solely develops. Within 6 months of the expiration or
termination of this Agreement, MFB shall have the option to purchase for
its exclusive use any of the recipes which Nonni's had solely developed
during the term of the Agreement. The purchase price for each recipe shall
be $75,000.00.
(b) Products. MFB shall have the right to purchase Royalty Bearing
Products from Nonni's at a "most favorable nations" price in order to sell
the Royalty Bearing Products at Xxx. Xxxxxx Cookies store locations owned
and operated by MFB, its licensees and its franchisees which are licensed
by MFB to operate Xxx. Xxxxxx Cookies stores pursuant to Xxx. Xxxxxx'
Uniform Franchise Offering Circular or under an exemption to the Federal
Trade Commission Regulations governing the sale of franchises. "Most
favored nations" price for the purpose of this agreement will be the
lowest net price received by Nonni's from any customer for the specific
store keeping unit ("sku") of the Royalty Bearing Product during the 30
day period immediately preceding the order from MFB, less an offset for
the amount of the running royalty otherwise due from Nonni's to MFB which
will instead be credited against the purchase price charged by Nonni's to
MFB.
4. LICENSE TRANSFER
This Agreement shall be binding upon and inure to the benefit of the
parties to this Agreement and their successors or assigns; provided, that the
rights of the parties under this Agreement may only be assigned (i) upon written
consent by MFB or (ii) without consent to a parent corporation which owns at
least fifty-one percent (51%) of such assigning party, a fifty-one percent (51%)
owned subsidiary corporation of such party, a fifty-one percent (51%) owned
subsidiary of a parent of such party if such parent owns at least fifty-one
percent (51%) of such party, or to such other business organization which shall
acquire substantially all of the assets and business of the parties, a parent,
or subsidiary. Nonni's shall not have the right to grant sub-licenses under this
Agreement; provided, however that Nonni's shall have the right to contract with
a third party for the actual manufacturing of the Royalty Bearing Products
("co-pack agreements"), if such co-packer (with respect to Royalty Bearing
Products) are approved in
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writing by MFB, (such approval shall be deemed granted unless within 30 days
after sending said notice to MFB, Nonni's receives from MFB written notice
indicating disapproval) which approval will not be unreasonably withheld, and
provided further that such co-packer signs a confidentiality agreement with MFB,
containing substantially the obligations of Nonni's as set forth in paragraph 15
hereof. Nonni's shall be required to provide a copy of the co-pack agreement to
MFB before the execution of any such agreement. Nonni's obligations as set forth
in this Agreement shall not be altered in any manner as a result of the
existence of any co-pack agreements with third party manufacturers. Any
assignment, franchise, sub-license, or transfer, not expressly permitted by this
Section 4, is prohibited and will be deemed to be null and void.
5. LICENSE FEE AND ROYALTIES
(a) Guaranteed Licensing Fees and Running Royalties. Throughout the
term (including Option Periods) of this Agreement the Running Royalty
shall be 5% of Net Sales of Royalty Bearing Products, Nonni's shall remit
such Running Royalties to MFB on the last day of the month following the
end of each calendar quarter covered by the Agreement. All Running
Royalties shall be non-refundable for any reason whatsoever.
(b) Payments. All fees, royalties, and amounts payable hereunder
shall be paid to MFB in U.S. currency in immediately available funds at
such address or to such account as shall be designated in writing by MFB.
(c) Interest on Late Payments. Nonni's shall pay interest on all
overdue amounts hereunder from the due date of such amounts until paid at
the Royalty Default Rate.
6. INTENTIONALLY OMITTED
7. INTENTIONALLY OMITTED
8. NONNI'S REPORTS
(a) Periodic Reports. On or before the last day of the month
following the last month of each calendar quarter covered by this
Agreement, Nonni's shall deliver to MFB a written statement prepared,
signed, and certified to be true and correct by Nonni's senior financial
officer, or their designee, setting forth the amount of Royalty Bearing
Products sold, including sufficient information and detail to confirm the
calculations, which report shall be accompanied by payment in full of the
amount of Running Royalties then due.
(b) Annual Reports. Within ninety (90) days following the end of
each calendar year of this Agreement, beginning with the first such year
in which Nonni's has sales of Royalty Bearing Products, Nonni's shall
deliver to MFB a written statement setting forth the amount of
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Royalty Bearing Products sold and the calculations, including sufficient
information and detail to confirm the calculations, used to determine such
amounts, which calculations shall be signed and certified as true and
correct by an independent certified public accounting firm chosen by
Nonni's and acceptable to MFB, which acceptance shall not be withheld
unreasonably. If this statement discloses that the amount of Running
Royalties paid during any period to which the report relates was less than
the amount required to be paid or that any other amount is due MFB,
Nonni's immediately shall pay such amounts, together with accrued interest
at the Royalty Default Rate in cash or other immediately available funds.
MFB shall have the right to examine and audit the books and records of
Nonni's to verify the amount of Royalty Bearing Products sold.
9. DEVELOPMENT OF ROYALTY BEARING PRODUCTS
Except for Royalty Bearing Products already approved under the Retail
Agreement, Nonni's hereby covenants, agrees, warrants and represents that:
(a) Product Development. All Royalty Bearing Products shall be
developed, manufactured, marketed, and sold as "premium" products
consistent with MFB's then existing image. Nonni's accepts full
responsibility for and agrees to pay all costs it incurs associated with
the development of all Royalty Bearing Products and all advertising and
promotion, packaging design, graphics, and packaging materials for Royalty
Bearing Products. MFB shall cooperate with Nonni's in development of
Royalty Bearing Products, primarily through the suggestion of ideas,
concepts, and recipes for products and packaging (MFB shall make its
artwork, designs and logos available for Nonni's use); provided, however,
that MFB shall have no obligation to develop Royalty Bearing Products or
any other products.
(b) MFB Approval. Nonni's shall not sell any initial Royalty Bearing
Product or any newly flavored Royalty Bearing Products until MFB, in its
reasonable judgment, finds that such product in mass production quantities
is satisfactory to MFB, pursuant to Section 11 hereof. The license to
Nonni's granted by this Agreement to distribute the Royalty Bearing
Products under the Licensed Names and Marks is expressly contingent upon
such final approval by MFB, which approval shall not be unreasonably
withheld.
(c) Compliance with Specifications. Nonni's will manufacture, sell
and distribute the Royalty Bearing Products in accordance with the Product
Specifications and will package and label the Royalty Bearing Products in
accordance with the Packaging Specifications.
(d) Capital Costs. Nonni's will secure all plant, equipment and
technical skills necessary for the manufacture of the Royalty Bearing
Products according to the Product and Packaging Specifications, and MFB
shall have no liability or responsibility with respect thereto.
(e) Compliance with Laws. The Royalty Bearing Products will be
manufactured in compliance with, and will not be adulterated or misbranded
within the meaning of, the Federal Food, Drug and Cosmetic Act of 1938, or
any other federal, state, foreign or local laws or
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regulations applicable thereto, will not constitute an article which may
not be introduced into interstate commerce and will be manufactured in
substantial compliance with all applicable federal, state, foreign or
local laws and regulations applicable thereto. Unless MFB otherwise agrees
in writing, Nonni's will destroy all inventories which are not in
conformity with Food and Drug Administration rules and regulations and all
applicable federal, state, foreign and local laws. Nonni's agrees to
notify MFB promptly of any regulatory action of which Nonni's has
knowledge that is taken in relation to it by any federal, state, foreign,
county or municipal authority which relates to or affects the manufacture,
storage, distribution or sale of the Royalty Bearing Products.
(f) Customer Complaints. Nonni's shall provide MFB a summary of all
written consumer complaints received regarding the quality of the Royalty
Bearing Products and shall maintain all written consumer complaints and a
telephone log for all consumer complaints received by telephone for a
period of one year. Nonni's will send a written report to MFB each month
containing the comments received, names of complaining persons, with
addresses and telephone numbers (if available). Comments will be organized
and summarized by type of comment or complaint and by the geographical
location of the complaint. Such information will also be available for
inspection by MFB during normal working hours upon reasonable notice.
Nonni's further agrees that it will respond to any written customer
complaint within fourteen (14) days of receipt of such complaint by
written response with either a refund of the customer's money or a coupon
for the same type of Royalty Bearing Product purchased, depending upon the
complaining customer's request. Nonni's further agrees that any complaints
about MFB products which are not Royalty Bearing Products will be
forwarded to MFB within five (5) days of receipt. Nonni's shall further
provide MFB with copies of all responses to complaints, upon request.
(g) Ingredient Approval. Nonni's will purchase for its own account
all flavoring ingredients, raw materials and packaging which is
proprietary to MFB from sources which are approved by MFB, which approval
shall not be unreasonably withheld.
(h) Nonni's must develop and submit for MFB's approval product
recall procedures.
10. ADVERTISING AND PROMOTION REQUIREMENTS
(a) Nonni's Promotion. Nonni's shall market Royalty Bearing Products
as premium products or as is otherwise consistent with MFB's then existing
image so that such marketing shall not reflect adversely upon Royalty
Bearing Products, the good name of MFB, o or the Licensed Names and Marks.
MFB shall have a prior to use reasonable right of approval for all
promotional, marketing and advertising materials and concepts for each
promotional campaign Nonni's uses to market Royalty Bearing Products. In
that regard, MFB shall have a right of reasonable approval, prior to the
development of final television, radio or printed advertisements, the
final "story boards" with respect to television advertising, the final
"script" with respect to radio spots and the final "layouts" with respect
to printed advertisements. MFB shall also have a right of reasonable
approval with respect to the actors or actresses used in connection with
any such
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advertising campaigns; provided, that Nonni's shall have the right to make
minor variations in promotional, marketing and advertising materials used
in connection with the approved promotional campaigns. All advertisements
and advertising campaigns shall conform in all material respects to the
approvals given by MFB. MFB shall have five (5) business days following
the receipt of the proposed promotional, marketing or advertising
materials to send Nonni's written notice of its disapproval which shall
include an explanation of the basis for disapproval. If such written
disapproval is not received by Nonni's within this five (5) business day
period, the marketing, promotional or advertising material submitted to
MFB shall be deemed approved. Any material modifications to any such
materials previously approved by MFB shall be subject to approval pursuant
to this Section 10. Once a promotional campaign has been approved by MFB,
if no material changes are made to it by Nonni's, MFB shall not rescind
its approval and Nonni's may proceed accordingly on the basis that it is
approved.
(b) MFB's Promotion. MFB agrees to participate in the cross
promotion in its company owned stores of the Royalty Bearing Products.
Such participation shall be at the sole discretion of MFB.
11. ROYALTY BEARING PRODUCTS APPROVAL STANDARDS
(a) Approval Standards. Prior to initial marketing of each Royalty
Bearing Product, Nonni's shall provide MFB with (i) notice of the proposed
predetermined product content specifications for approval (as so approved
by MFB, the "Product Specifications"), and (ii) without charge,
representative samples of the proposed product and related packaging
materials, labels, and package inserts, for approval (as so approved by
MFB, the "Packaging Specifications"). Approval of product content
specifications, product quality, packaging, labels and inserts shall be in
MFB's reasonable discretion. Unless within ten (10) business days after
sending the above notice and samples Nonni's receives from MFB notice
indicating disapproval of proposed predetermined product content
specifications, product quality or other items described above, together
with an explanation of the basis of its disapproval, such predetermined
product content specifications, product quality, or other items shall be
deemed approved. Nonni's shall market all Royalty Bearing Products in
accordance with the approval received from MFB with respect to product
content specifications, quality, packaging and labeling, and in accordance
with all governmental laws, rules, and regulations applicable in the
Territory.
(b) Examination By MFB. Periodically MFB shall have the right to
request and upon such request Nonni's shall provide to MFB, free of
charge, representative samples of any Royalty Bearing Products then being
sold, together with any packaging, packaging inserts, labels, wrapping,
advertising, marketing and promotional material then in use. MFB shall
examine any such samples, packaging, promotional or marketing materials,
and advertisements within ten (10) days after receipt. If as a result of
such examination MFB believes that any Royalty Bearing Product is not in
substantial conformity with the Product Specifications or product quality
approved by MFB, or that any packaging, advertising, marketing or
promotional materials are not in substantial conformity with any previous
approvals given by MFB, or any Licensed Names or
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Marks are not being used in conformity with the requirements of this
Agreement, MFB shall promptly notify Nonni's. After receipt of any such
notice from MFB, Nonni's shall have ten (10) business days or a mutually
agreed upon time period to correct the lack of conformity identified by
MFB. Nonni's recognizes that representatives of MFB may also inspect
Royalty Bearing Products after delivery into Designated Distribution
Channels and Nonni's shall cooperate with MFB in obtaining Nonni's
customers' cooperation in such inspections. Notwithstanding the foregoing,
MFB's right to request and receive samples and related packaging shall be
limited to once per calendar quarter, unless in any quarter such samples
are non-conforming as described above in which case MFB may request
additional samples from time to time during such quarter and the next
succeeding calendar quarter to ensure conformity.
(c) Labeling; Trademark Notices. Whenever Nonni's uses the Licensed
Names and Marks, Nonni's shall affix the appropriate trademark notice and
agrees to use the registration symbol of "(R)" in connection with its use
of the Licensed Names and Marks, or "TM" where the xxxx has not been
registered federally, and in each instance where appropriate accompanied
by the words "Reg. TM of MFB" or a reasonable facsimile thereof or such
other reference as may be designated by MFB from time to time. Where a
Licensed Name and Xxxx is used more than once on packaging, in copy or
advertising or on the Royalty Bearing Products, the "(R)" or "TM"
designation need only be used once either on the most prominent use of the
Licensed Name and Xxxx, or if all uses are of equal prominence, then on
the first use of the Licensed Name and Xxxx in or on each package, copy,
advertisement, or product. Nonni's shall use the Licensed Names and Marks
only as trademarks, service marks, or trade names and shall affix the
notice as specified. Nonni's shall not have the right, unless previously
agreed in writing by MFB, to use other trademarks, service marks, or trade
names in marketing and promoting Royalty Bearing Products. MFB shall have
the right to own and register any such other trademark, service xxxx, or
trade name which is registerable, including a Licensed Name or Xxxx or
"Fields" in any format, and such trademarks, service marks, and trade
names owned or registered by MFB shall be included in the Licensed Names
and Marks, and Nonni's shall cooperate with MFB by providing packaging,
labeling, and documentation as may be required to obtain and maintain such
registration.
12. USE OF LICENSED NAMES AND MARKS
(a) Restrictions On Use. Unless MFB consents in writing which
consent shall not be unreasonably withheld, Nonni's shall use the Licensed
Names and Marks:
(i) only for the purposes of and pursuant to this Agreement,
(ii) only in a manner consistent with the scope of the
relevant registration of the Licensed Names and Marks or
applications therefor in the Territory,
iii) only in the manner permitted and prescribed by MFB as
set forth herein,
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(iv) only with respect to Royalty Bearing Products, and
(v) only to sell Royalty Bearing Products through Designated
Distribution Channels.
(b) Recognition of Goodwill. Nonni's recognizes the value of the
goodwill associated with the Licensed Names and Marks and acknowledges
that the Licensed Names and Marks and all rights therein and goodwill
pertaining thereto belong exclusively to MFB.
(c) Validity of Other Agreements. Nonni's agrees that it will not,
during the term of this Agreement or thereafter, attack the title or any
rights of MFB in and to the Licensed Names and Marks, or any other license
agreement or franchise agreement involving the Licensed Names and Marks to
which MFB is a party.
(d) Validity of Licensed Names and Marks. Nonni's agrees that it
will not intentionally destroy, impair or in any way impede the effect and
validity of the Licensed Names and Marks.
(e) Validity of the Retail Agreement. Nothing in this paragraph
shall restrict Nonni's rights under the Retail Agreement.
13. INFRINGEMENT
Nonni's agrees to assist MFB, at MFB's cost and expense, to the extent
necessary in the procurement of any protection or to protect any of MFB's rights
to the Licensed Names and Marks, and MFB, if it so desires, may commence or
prosecute any claims or suits in its own name or, with Nonni's consent, in the
name of Nonni's or join as a party thereto. Nonni's shall notify MFB in writing
of any infringements or imitations by others of the Licensed Names and Marks
which may come to Nonni's attention, and MFB shall have the sole right to
determine whether or not any action shall be taken on account of any such
infringements or imitations at MFB's cost and expense. Nonni's shall not
institute any suit or take any action on account of any such infringements or
imitations without first obtaining the written consent of MFB.
14. INSURANCE
Nonni's shall obtain and keep in force, at its sole expense, product
liability insurance providing adequate insurance for MFB against any claims and
suits involving product liability arising out of, or with respect to, the
transactions contemplated by this Agreement, in no less than Ten million dollars
($10,000,000.00) combined single limit on bodily injuries and/or property
damage. Within thirty (30) days after the date of this Agreement, Nonni's shall
submit to MFB a certificate of insurance naming MFB as an additional insured and
providing that any cancellation or material change or alteration which reduces
coverage or any benefits accruing to MFB shall become effective only upon thirty
(30) days prior notice
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to MFB. The requirements of this Section 14 are acknowledged by Nonni's to be a
material term of this Agreement as defined in paragraph 16(b)(ii).
15. CONFIDENTIALITY
(a) Acknowledgment of Confidentiality. Nonni's understands that any
Protected Information disclosed to it by MFB under this Agreement is
secret, proprietary and of great value to Nonni's, which value may be
impaired if the secrecy of the Protected Information is not maintained.
(b) Reasonable Security Measures. MFB has taken and will continue to
take reasonable security measures to preserve and protect the secrecy of
the Protected Information and Nonni's agrees to take all measures
reasonably necessary to protect the secrecy of such information in order
to prevent it from falling into the public domain or into the possession
of persons not bound to maintain the secrecy of such information.
(c) Non-Disclosure Obligation. Nonni's agrees not to disclose the
Protected Information obtained pursuant to this Agreement, to any person
or entity (other than Nonni's key officers and employees to whom
disclosure is necessary and to co-packers whom have executed a
Confidentiality Agreement pursuant to paragraph 4), during the term of
this Agreement or at any time following the expiration or termination of
this Agreement.
(d) Burden of Proof. Nonni's hereby acknowledges and agrees that if
Nonni's shall disclose, divulge, reveal, report, publish, transfer or use,
for any purpose whatsoever, except as authorized herein, any Protected
Information, and Nonni's shall assert as a defense that such information
(i) was already known to Nonni's or developed prior to the execution of
this Agreement, (ii) was independently developed by Nonni's, (iii) was
disclosed to third parties without violation of this Agreement, (iv) was
already in the public domain prior to the execution of this Agreement, or
(v) entered the public domain without violation of this Agreement, then
Nonni's shall bear the burden of proof with respect to the same.
(e) Mutuality of Obligations. MFB hereby agrees that any information
which it receives from Nonni's which is within the scope of the definition
of Protected Information, shall be treated as confidential by MFB, and MFB
hereby agrees to be bound by the terms of this Agreement with respect to
any such information it receives from Nonni's, to the same extent that
Nonni's is bound by the terms of this Agreement with respect to Protected
Information, as set forth above in paragraphs 15(a), (b), (c) and (d).
16. TERM AND TERMINATION
(a) Term. The initial term of this Agreement shall begin upon the
execution hereof
11
and shall continue for a period of thirty-six 36 months ("Initial Term").
So long as Nonni's is not in material default, this Agreement would then
automatically renew for successive five year terms ("Option Periods")
until such time as either party terminates the Agreement upon no more than
twenty (20) days prior written notice to the other party. Notwithstanding
the above, during any Option Period and only during an Option Period, if
Nonni's has achieved or paid a minimum of a 2% growth of Running Royalties
year-over-year during the proceeding twelve month period, then MFB shall
not exercise its termination rights under this paragraph 16(a). MFB's
termination rights under paragraph 16(b) shall not be deemed altered or
waived by this paragraph 16(a).
(b) Termination. This Agreement may be terminated as follows:
(i) If Nonni's defaults in the payment of any Running
Royalties then this Agreement and the license granted hereunder may
be terminated upon notice by MFB effective thirty (30) days after
receipt of such notice, without prejudice to any and all other
rights and remedies MFB may have hereunder or by law provided, and
all rights of Nonni's hereunder shall cease.
(ii) If Nonni's fails to perform in accordance with any
material term or condition of this Agreement (other than as
described in paragraph 16(b)(i) above) and such default continues
unremedied for thirty (30) days after the date on which Nonni's
receives written notice of default, unless such remedy cannot be
accomplished in such time period and Nonni's has commenced diligent
efforts within such time period and continues such effort until the
remedy is complete, then this Agreement may be terminated upon
notice by MFB, effective upon receipt of such notice, without
prejudice to any and all other rights and remedies MFB may have
hereunder or by law provided.
(iii) If Nonni's is determined to be insolvent, or files a
petition in bankruptcy or for reorganization, or takes advantage of
any insolvency statute, or makes an assignment for the benefit of
creditors, or undertakes any similar action, under any federal,
state or foreign bankruptcy, insolvency or similar law, unless such
is dismissed, removed or otherwise cured within thirty (30) days or
unless Nonni's has filed for Chapter 11 Reorganization protection
under Federal Bankruptcy Laws, then this Agreement and the License
granted hereunder may be terminated upon notice by MFB, effective
upon receipt of such notice, without prejudice to any and all other
rights and remedies MFB may have hereunder or by law provided, and
the license herein granted shall not constitute an asset in
reorganization, bankruptcy, or insolvency which may be assigned or
which may accrue to any court or creditor appointed referee,
receiver, or committee.
(iv) If MFB is determined to be insolvent, or files a petition
in bankruptcy or for reorganization, or takes advantage of any
insolvency statute, or makes an assignment for the benefit of
creditors, or undertakes any similar action, under any federal,
state or foreign bankruptcy, insolvency or similar law, or fails to
perform in accordance with any material term or condition of this
Agreement and such default continues for thirty (30) days after MFB
receives written notice of default, then this Agreement and the
License granted hereunder may be terminated upon notice by Nonni's,
effective upon receipt of such notice, without prejudice to any and
all other
12
rights and remedies Nonni's may have hereunder or by law provided,
and the license herein granted shall not constitute an asset in
reorganization, bankruptcy, or insolvency which may be assigned or
which may accrue to any court or creditor appointed referee,
receiver, or committee.
(v) If MFB fails to perform in accordance with any material
term or condition of this Agreement and such default continues
unremedied for thirty (30) days after the date on which MFB receives
written notice of default, then this Agreement may be terminated
upon notice by Nonni's, effective upon receipt of such notice,
without prejudice to any and all other rights and remedies Nonni's
may have hereunder or by law provided.
(c) Rights Upon Termination or Cancellation. On any cancellation,
termination or expiration of this Agreement;
(i) Nonni's agrees to immediately pay to MFB all currently
owed Running Royalties and any additional royalties pursuant to
Section 17 and to return all Protected Information, confidential
documents and other material supplied by MFB to Nonni's and agrees
never to use, disclose to others, nor assist others in using the
Protected Information.
(ii) Nonni's will be deemed to have automatically and
irrevocably assigned, transferred, and conveyed to MFB any rights,
equities, good will, titles or other rights in and to the Licensed
Names and Marks and Royalty Bearing Products which may have been
obtained by Nonni's or which may have vested in Nonni's in pursuance
of any endeavors covered hereby, and Nonni's will execute any
instruments requested by MFB to accomplish or confirm the foregoing.
Any such assignment, transfer or conveyance shall be without
consideration other than the mutual covenants and considerations of
this Agreement.
(iii) Except as provided in Section 17 below, Nonni's further
agrees that it shall forthwith discontinue the use of all Licensed
Names and Marks, including packaging and other paper goods and other
objects bearing any Licensed Names and Marks.
(d) Licensing of Licensed Names and Marks After Termination. Upon
any expiration or earlier termination of this Agreement, MFB may license
others to use the Licensed Names and Marks to produce, sell, market and
advertise products similar or identical to the Royalty Bearing Products
through Designated Distribution Channels in the Territory.
(e) Packaging Designs. In the event this Agreement is properly
terminated, MFB shall have the right to purchase the packaging designs for
the Royalty Bearing Products from Nonni's at a price equal to the amount
expended by Nonni's on such packaging designs. To exercise this right, MFB
shall notify Nonni's in writing of MFB's intent to purchase the packaging
design, not later than 30 days after termination. Upon receipt of such
notice, Nonni's shall provide MFB with the amount of Nonni's cost for
packaging design, whereupon, MFB may rescind its offer within twenty (20)
business days of receipt of the price of such costs for packaging design,
13
otherwise MFB shall be deemed to have accepted such cost as the purchase
price for such packaging.
17. DISPOSAL OF INVENTORY UPON EXPIRATION
For a period of six (6) months following the termination or expiration of
this Agreement, Nonni's shall have the right to sell any Royalty Bearing
Products in Nonni's inventory which have been packaged in packages bearing the
Licensed Names and Marks, and MFB shall have the right to purchase at Nonni's
fully allocated cost, any packaging materials using the Licensed Names and Marks
then in Nonni's inventory. Any sales of Royalty Bearing Products under this
Section shall be, at all times, in accordance with the policies, prices, and
standards established for marketing and distribution of Royalty Bearing Products
pursuant to this Agreement, and shall include payment of all Running Royalties
accrued in accordance with Section 5 hereof.
18. FINAL STATEMENT UPON TERMINATION OR EXPIRATION
As soon as practicable after termination or expiration of the license
granted hereunder, but in no event more than thirty (30) days thereafter,
Nonni's shall deliver to MFB a statement indicating the number and description
of Royalty Bearing Products packaged in packaging using the Licensed Names and
Marks then in Nonni's inventory and the number and description of unused
packaging materials bearing the Licensed Names and Marks then in Nonni's
inventory. MFB shall have the option to conduct a physical inventory to
ascertain or verify such statement.
19. REPRESENTATIONS AND WARRANTIES
(a) Title. MFB represents and warrants and Nonni's acknowledges that
MFB has represented that MFB is the owner of all right, title, and
interest in and to the Licensed Names and Marks and that such licensing
and Licensed Names and Marks under this Agreement to Nonni's does not
infringe upon the rights of any third parties. Nonni's further
acknowledges the good will associated with the Licensed Names and Marks
and that such Licensed Names and Marks have acquired secondary meaning in
the mind of the public. Nonni's shall not during the term of this
Agreement dispute or contest, directly or indirectly, or due or cause to
be done, any action which in any way contests, impairs, or tends to impair
MFB's exclusive rights and title to the Licensed Names and Marks or the
validity of any registrations thereof and Nonni's shall not assist others
in so doing. Nonni's shall not in any manner represent that it owns any
rights in the Licensed Names and Marks (and/or registrations therefore),
but may, only during the term of this Agreement, and only if Nonni's has
complied with all laws, regulations and registration requirements within
the jurisdiction for so doing, represent that it is a "licensee" or
"official licensee" hereunder. Nonni's shall not register or attempt to
register in its own name, or that of any third party, any Licensed Name or
Xxxx. Subject to the terms and conditions of this Agreement, Nonni's
agrees that any and all uses by Nonni's of the Licensed Names and Marks
under this Agreement shall be on behalf of and accrue and inure to the
benefit of MFB. MFB will maintain at its sole expense, the proper
registration of all Licensed Names and Marks used under this Agreement.
14
(b) Right To Enter Into This Agreement. MFB and Nonni's each warrant
and represent for itself that it has the right to enter into this
Agreement, that it will not knowingly subsequently take any action
contrary to this Agreement, and that the entering into of this Agreement
will not knowingly violate any other agreement to which it is a party or
conflict with or violate any law, rule or regulation by which it is bound.
(c) MFB's Image. MFB represents and warrants that it will not
intentionally do anything to destroy or impair its existing image.
20. INDEMNIFICATION
(a) MFB Indemnification. MFB hereby indemnifies Nonni's and forever
holds Nonni's harmless from and against all claims, suits, actions,
proceedings, damages, losses or liabilities, costs or expenses (including
reasonable attorneys' fees and expenses) arising out of, based upon, or in
connection with (i) any breach of any of MFB's warranties or
representations as set forth in this Agreement or (ii) any claim that the
use by Nonni's of the Licensed Names and Marks as provided in this
Agreement infringes upon any third party trademark, service xxxx, or trade
name.
(b) Nonni's Indemnification. Nonni's hereby indemnifies MFB and
forever holds MFB harmless from and against all claims, suits, actions,
proceedings, damages, losses or liabilities, costs or expenses (including
reasonable attorneys' fees and expenses) arising out of, based upon, or in
connection with, unless it is at the direction of MFB (i) any breach of
any of Nonni's warranties or representations as set forth in this
Agreement, (ii) any use of any patent, process, method, or device by
Nonni's in connection with the Royalty Bearing Products; (iii) any alleged
defects or dangers inherent in the Royalty Bearing Products or the
manufacture, distribution, sale, or use thereof; (iv) any injuries or
damages to purchasers, users, or consumers of Royalty Bearing Products
arising from or related to the use or consumption of Royalty Bearing
Products; (v) any injuries or damages arising from Nonni's or any of
Nonni's customers, advertising, marketing or promotion of the Licensed
Names and Marks or Royalty Bearing Products; or (vi) any alleged
infringement of any third party's copyright, patent, or trademark unless
and to the extent such alleged infringement is based upon Nonni's use of
the Licensed Names and Marks as authorized in this Agreement.
(c) Conditions of Indemnification. As a condition of indemnification
under this Section 20, the party seeking indemnification shall give the
other party (for purposes of this Section 20 called the "Indemnifying
Party") immediate notice of and copies of all pleadings and correspondence
related to the assertion of any such claim, proceeding, action, or suit
and agrees not to settle, compromise, or otherwise dispose of any such
claim, proceeding, action or suit without the prior written consent of the
Indemnifying Party. The Indemnifying Party shall have the right (but not
the obligation) to assume the defense or settlement of any such claim,
proceeding, action, or suit at its expense, by counsel of its choice. If
the Indemnifying Party
15
assumes such defense, the Party seeking indemnity shall cooperate fully
with the Indemnifying Party in defense of the action and the Indemnifying
Party shall not be liable to pay or reimburse the other party for
attorneys' fees or expenses, except such out of pocket costs or expenses
incurred by the Indemnified Party in cooperating with the Indemnifying
Party.
21. NOTICES
All notices provided by this Agreement shall be in writing and shall be
given by facsimile or registered mail, postage prepaid, or by personal delivery,
by one party to the other, addressed to such other Party at the applicable
address set forth below, or to such other addresses as may be given for such
purpose by such other party by notice duly given hereunder. Notice shall be
deemed properly given on the date of a confirmed facsimile transmission, three
(3) days after the date mailed if given by first class mail. or on the date of
delivery, which ever applies:
To MFB: The Xxx. Xxxxxx' Brand, Inc.
0000 X. Xxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attention: Legal Department
Fax No: (000) 000-0000
To NONNI'S: Nonni's Food Company, Inc.
000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx, XX 00000
Fax: (000) 000-0000
22. GENERAL PROVISIONS
(a) No Fiduciary or Other Relationship. It is understood and agreed
by the parties hereto that this Agreement does not create a fiduciary
relationship between them, that MFB and Nonni's are and shall be
independent contractors and that nothing in this Agreement is intended to
make either party a general or special agent, joint venturer, partner or
employee of the other for any purpose whatsoever.
(b) Use of Licensed Names and Marks in Contracts. Nonni's shall not
employ any of the Licensed Names and Marks in signing any contract or
applying for any license or permit or in a manner that may result in MFB's
liability for any of Nonni's indebtedness or obligations, nor may Nonni's
use the Licensed Names and Marks in any way not expressly authorized by
MFB. Except as expressly authorized in writing, neither MFB nor Nonni's
shall make any express or
16
implied agreements, warranties, guarantees or representations or incur any
debt in the name or on behalf of the other, represent that their
relationship is other than licensor and licensee or be obligated by or
have any liability under any agreements or representations made by the
other that are not expressly authorized in writing.
(c) Severability. Except as expressly provided to the contrary
herein, each Section, paragraph, term and provision of this Agreement, and
any portion thereof, shall be considered severable and if, for any reason,
any such provision of this Agreement is held to be invalid, contrary to or
in conflict with any applicable present or future law or regulation in a
final, unappealable ruling issued by any court, agency or tribunal with
competent jurisdiction in a proceeding to which MFB is a party, that
ruling shall not impair the operation of, or have any other effect upon,
such other portions of this Agreement as may remain otherwise
intelligible, which shall continue to be given full force and effect and
bind the parties hereto, although any portion held to be invalid shall be
deemed not to be a part of this Agreement from the date the time for
appeal expires, if Nonni's is a party thereto, otherwise upon Nonni's
receipt of a notice of non-enforcement thereof from MFB. If any covenant
herein which restricts competitive activity is deemed unenforceable by
virtue of its scope in terms of area, business activity prohibited and/or
length of time, but would be enforceable by reducing any part or all
thereof, Nonni's and MFB agree that the same shall be enforced to the
fullest extent permissible under the laws and public policies applied in
the jurisdiction in which enforcement is sought.
(d) Substitution of Provisions. If any applicable and binding law or
rule of any jurisdiction requires a greater prior notice of the
termination of this Agreement than is required hereunder, or the taking of
some other action not required hereunder, or if, under any applicable and
binding law or rule of any jurisdiction, any provision of this Agreement
is invalid or unenforceable, the prior notice and/or other action required
by such law or rule shall be substituted for the comparable provisions
hereof. Nonni's agrees to be bound by any promise or covenant imposing the
maximum duty permitted by law which is subsumed within the terms of any
provision hereof, as though it were separately articulated in and made a
part of this Agreement, that may result from striking from any of the
provisions hereof, any portion or portions which a court may hold to be
unenforceable in a final decision to which MFB is a party, or from
reducing the scope of any promise or covenant to the extent required to
comply with such a court order. Such modifications to this Agreement shall
be effective only in such jurisdiction, unless MFB elects to give them
greater applicability, and shall be enforced as originally made and
entered into in all other jurisdictions.
(e) Waiver. MFB and Nonni's may by written instrument unilaterally
waive or reduce any obligation of or restriction upon the other under this
Agreement, effective upon delivery of written notice thereof to the other
or such other effective date stated in the notice of waiver. Any waiver so
granted by the waiving party shall be without prejudice to any other
rights the waiving party may have, will be subject to continuing review by
the waiving party and may be revoked, in the waiving party's sole
discretion, at any time and for any reason, effective upon delivery to the
other party of ten (10) days' prior written notice.
17
(f) Waiver by Custom or Practice. MFB and Nonni's shall not be
deemed to have waived or impaired any right, power or option reserved by
this Agreement (including, without limitation, the right to demand exact
compliance with every term, condition and covenant herein or to declare
any breach thereof to be a default and to terminate this Agreement prior
to the expiration of its term) by virtue of any custom or practice of the
parties at variance with the terms hereof; any failure, refusal or neglect
of MFB or Nonni's to exercise any right under this Agreement or to insist
upon exact compliance by the other with its obligations hereunder; any
waiver, forbearance, delay, failure or omission by MFB or Nonni's to
exercise any right, power or option, whether of the same, similar or
different nature, or MFB's acceptance of any payments due from Nonni's
after any breach of this Agreement.
(g) Force Majeure. Neither MFB nor Nonni's shall be liable for loss
or damage or deemed to be in breach of this Agreement if their failure to
perform obligations results from:
(i) compliance with any law, regulation, requirement or
instruction of any federal, state, municipal or foreign
government or any department or agency thereof; or
(ii) acts of God; or
(iii) fires, strikes, embargoes, war or riot; or
(iv) any other similar event or cause.
Any delay resulting from any of said causes shall extend performance
accordingly or excuse performance, in whole or in part, as may be
reasonable, except that said causes shall not excuse payments of amounts
owed at the time of such occurrence or payment of any Running Royalties or
Guaranteed Amounts for Royalty Bearing Products due on any sales
thereafter.
(h) Press Release. Unless consented to by Nonni's in advance or
required by law, regulation, statute, etc., MFB agrees not to issue any
formal press release prior to the introduction of Royalty Bearing Products
through the Designated Distribution Channels.
(i) Temporary Restraining Orders. Notwithstanding anything to the
contrary contained in this Agreement, MFB and Nonni's shall each have the
right in a proper case to obtain temporary restraining orders and
temporary or preliminary injunctive relief from a court of competent
jurisdiction.
(j) Cumulative. The rights of MFB and Nonni's hereunder are
cumulative and no exercise or enforcement by MFB or Nonni's of any right
or remedy hereunder shall preclude the exercise or enforcement by MFB or
Nonni's of any other right or remedy hereunder which MFB or Nonni's is
entitled by law to enforce.
(k) Costs and Attorney Fees. If a claim for amounts owed by Nonni's
to MFB or its affiliates is asserted in any judicial proceeding or appeal
thereof, or if MFB or Nonni's is required to enforce this Agreement in any
judicial proceeding or appeal thereof, the party prevailing
18
in such proceeding shall be entitled to reimbursement of its reasonable
costs and expenses, including reasonable accounting and legal fees,
whether incurred prior to, in preparation for, or in contemplation of the
filing of any written demand, claim, action, hearing or proceeding to
enforce the obligations of this Agreement. If MFB incurs expenses in
connection with Nonni's failure to pay when due amounts owing to MFB, to
submit when due any reports, information or supporting records or
otherwise to comply with this Agreement, or if Nonni's incurs expenses in
connection with MFB's failure to comply with this Agreement, including,
but not limited to legal and accounting fees, the party incurring the
expense shall be reimbursed by the other party for any such reasonable
costs and expenses which it incurs.
(l) Governing Law. Except to the extent governed by the United
States Trademark Act of 0000 (Xxxxxx Xxx, 00 X.X.X. " 1051 et seq.) or
other federal law, this Agreement, and the relationship between Nonni's
and MFB, shall be governed by the laws of the State of Utah.
(m) Jurisdiction. Nonni's and MFB hereby irrevocably consent and
agree that any legal action, suit or proceeding arising out of or in any
way in connection with this Agreement may be instituted or brought in the
United States District Court for the District of Utah. Nonni's and MFB
hereby irrevocably consent and submit to, for themselves and in respect of
their property, generally and unconditionally, the jurisdiction of such
Court, and to all proceedings in such Court. Further, Nonni's and MFB
irrevocably consent to actual receipt of any summons and/or legal process
at their respective addresses as set forth in this Agreement as
constituting in every respect sufficient and effective service of process
in any such legal action or proceeding. Nonni's and MFB further agree that
final judgment in any such legal action, suit or proceeding shall be
conclusive and may be enforced in any other jurisdiction, whether within
or outside the United States of America, by suit under judgment, a
certified or exemplified copy of which will be conclusive evidence of the
fact and the amount of the liability.
(n) Waiver of Punitive Damages. Except with respect to the
indemnification obligations of the parties hereunder, the parties waive to
the fullest extent permitted by law any right to or claim for any punitive
or exemplary damages against the other and agree that, in the event of a
dispute between them, the party making a claim shall be limited to
recovery of any actual damages it sustains.
(o) Headings. The headings of the several sections and paragraphs
hereof are for convenience only and do not define, limit or construe the
contents of such sections or paragraphs.
(p) Entire Agreement. This Agreement and the Exhibits hereto
represent the entire agreement between MFB and Nonni's with respect to the
subject matter hereof and supersede any prior agreements and negotiations
between the parties. This Agreement does not affect my rights or
obligations of the parties under the Retail Agreement.
(q) Exhibits. All Exhibits hereto form part of this Agreement.
19
(r) Counterparts. This Agreement may be executed simultaneously in
two counterparts, each of which shall be deemed an original, but both of
which together shall constitute one and the same agreement, binding upon
both parties hereto, notwithstanding that both parties are not signatories
to the original or the same counterpart.
(s) Expenses. Each party shall bear its own expenses (including
attorneys' fees and expenses) in connection with the preparation,
negotiation, execution, and delivery of this Agreement.
IN WITNESS THEREOF, this Agreement has been executed by the Parties hereto
as of the date and year first written above.
NONNI'S FOOD COMPANY, INC.
By: /s/ Xxx Xxxxx
-------------------------------------
Its: CEO
------------------------------------
THE XXX. XXXXXX' BRAND, INC.
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Its: Senior Vice President
------------------------------------
EXHIBIT "A"
LICENSED NAMES AND MARKS
20
EXHIBIT "B"
ROYALTY BEARING PRODUCTS
Commercially pre-baked ready-to-eat cookies packaged for food service for the
following products:
Cookies
21
