CERTAIN CONFIDENTIAL MATERIAL CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT 10.3
EXCLUSIVE LICENSE AGREEMENT
This Exclusive License Agreement (the "Agreement"), dated January 26,
2001, is by and between Hoopeston Foods Denver Corp., a Delaware corporation
("Licensee"), and Xxxxxx Canning Company, a Colorado corporation ("Licensor").
RECITALS
A. Licensor owns and operates food production, canning and warehousing and
distribution facilities located at 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxx (the
"Plant").
B. Concurrent with the execution of this Agreement, Licensor and Licensee are
also entering into various other agreements listed on Schedule 1 hereto
(the "Other Agreements"), concerning Licensee leasing the Plant from
Licensor and thereafter running and operating the Plant and the business
conducted at the Plant.
C. In connection with Licensee's operation of the Plant and the other
transactions under the Other Agreements, Licensee desires to enter into
this exclusive license with Licensor to use all of Licensor's manufacturing
processes, formulas, recipes (including, without limitation, those relating
to [ * ]), licenses, registrations and permits required, necessary or in
any way related to the production, warehousing, distribution and canning
business conducted at the Plant.
NOW, THEREFORE, in consideration of the promises and the covenants and
conditions contained hereinafter and intending to be legally bound hereby, both
parties agree as follows:
Section 1. Grant of License. Upon the terms and conditions set forth herein,
and subject to the lien rights of Licensor's lender, Xxxxx Fargo Credit, Inc.
and/or its assigns ("Lender"), the Licensor hereby grants, licenses and conveys
(all herein called "grant") to the Licensee, and Licensee accepts from
Licensor, an exclusive license (to the extent transferable) to use all of
Licensor's manufacturing processes, formulas, recipes (including, without
limitation, those relating to [ * ]), licenses, registrations and permits
required, necessary or in any way related to the warehousing, distribution,
production and canning business conducted at the Plant (collectively, the
"Licensed Rights"). Notwithstanding the foregoing, the Licensed Rights granted
hereunder do not include any right, title or interest in or to Licensor's
product brands, or any license to use in any manner, trade names and
trademarks, including but not limited to, Xxxxxx, Xxxxxx Xxxxx, Xxxxx Foods and
Xxxxxx'x Farm (collectively, the "Brands"). Licensor is retaining all right,
title and interest in the Brands and such Brands are not part of the
transactions hereunder.
Section 2. Consideration for License. The consideration for the grant of the
license hereunder are the obligations and covenants of the Licensee under this
Agreement and the Other Agreements.
Section 3. Duration and Termination. Unless otherwise terminated as
hereinafter set forth, this Agreement shall continue in full force for a term of
5 years from the date hereof, provided however,
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that either party shall have the right to terminate this Agreement and the
license granted herein in the event of any of the following:
3.1 The other party breaches the Agreement and does not cure such breach
within 30 days after notice thereof from the other party specifying such breach;
3.2 The other party breaches any obligations under the Other Agreements and
fails to cure such breach within the time periods set forth in the Other
Agreements;
3.3 Dissolution, insolvency or bankruptcy of the other party whether voluntary
or involuntary;
3.4 Appointment of a trustee or receiver for the other party.
In such case and in addition to all other rights and remedies which the
non-defaulting party may have at law or in equity, the non-defaulting party
may, at its option, terminate this Agreement by notice thereof in writing
specifying the reason for such termination and a termination date. Such
termination shall become effective on the date of termination set forth in the
notice of termination. Notwithstanding the foregoing, in no event shall this
Agreement be terminated by Licensor prior to the date of termination or
expiration of the Co-Pack and Warehousing Agreement dated as of the date hereof
by and between the parties hereto.
Section 4. Warranty; Exclusion. Licensor represents and warrants that it has
all necessary authority to enter into this Agreement and grant the license
hereunder and, to the best of its knowledge, the Licensed Rights are free of
intellectual property rights of others. Licensor makes no other representations
or warranties of any kind, express or implied, with respect to the Licensed
Rights.
Section 5. No Release. Both parties agree that the termination of this
Agreement or the expiration of the term of this Agreement shall not release
either party from any obligations incurred or accruing prior to termination.
Section 6. Assignment. Neither party may assign or transfer this Agreement
without the prior written consent of the other party, which consent shall not
be unreasonably withheld.
Section 7. Consent To Colorado Jurisdiction And Venue And Choice Of Law.
Licensee agrees that by entering into this Agreement, Licensee has transacted
business in the state of Colorado. In the event of legal action to reform,
enforce, construe, or interpret this Agreement, Licensee consents to the
jurisdiction of the courts of the state of Colorado, agrees that the Colorado
courts have jurisdiction over Licensee, and that venue and jurisdiction shall
be proper in any state or federal court located in the state of Colorado. This
Agreement shall in all respects be interpreted, and all transactions hereunder
and all rights and liabilities of the parties hereto shall be governed and
determined as to validity, interpretation, enforcement and effect in accordance
with the laws of the state of Colorado, without giving effect to the conflict
of law provisions.
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Section 8. Purchase of Licensed Rights. Provided (i) Licensee is not in default
and has fully performed all of its obligations hereunder and under the Other
Agreements, (ii) subject to the prior lien rights of Lender, and (iii) Licensee
has purchased the Plant from Licensor under the Real Property Lease and the
equipment from Licensor under the Equipment Lease Agreement described on
Schedule 1 hereto, Licensee shall have an option to purchase the Licensed Rights
from Licensor for $10. Such purchase will be made without any representation or
warranty by Licensor, express or implied, and on an AS IS, WHERE IS BASIS, AND
WITH ALL FAULTS.
Section 9. Further Assurances. In the event Licensee purchases the Licensed
Rights from Licensor pursuant to the terms of this Agreement, Licensor shall
cooperate with Licensee and shall do, execute, acknowledge and deliver or cause
to be done, executed, acknowledged or delivered all such further acts, deeds,
documents, assignments, transfers, conveyances, powers of attorney and
assurances as may be reasonably necessary or desirable to effect the
consummation of the transfer and sale of the Licensed Rights to Licensee
contemplated hereunder.
{Signatures are on the following page}
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The parties have executed this Agreement by their duly authorized
representatives effective as of the date first set forth above.
LICENSOR:
Xxxxxx Canning Company
By: /s/ Xxxxx X. Xxxxx
-------------------------
Title: CEO
----------------------
LICENSEE:
Hoopeston Foods Denver Corp.
By: /s/ Xxxx X. Xxxxxx
-------------------------
Title: Pres/CEO
----------------------
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SCHEDULE 1
List of Other Agreements
1. Non-Branded Inventory Sales Agreement.
2. Co-Pack Agreement for Buyer to co-pack Seller's branded products.
3. Equipment Lease Agreement for Buyer to lease Seller's equipment located at
the Plant.
4. Lease Override Agreement for additional payments to be made by Buyer to
Seller.
5. EBITDA Overview Committee Agreement.
6. Real Property Lease for the Plant.
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