Exhibit 10.11
TRADEMARK LICENSE AGREEMENT
THIS AGREEMENT, made this 10th day of July, 2000 (hereinafter the "Effective
Date"), by and between Land O'Lakes, Inc., a Minnesota cooperative corporation
with its principal place of business in Arden Hills, Minnesota (hereinafter
"LOL") and DTMC, Inc. (hereinafter "DTMC"), a Delaware corporation and a wholly
owned subsidiary of Xxxx Foods Company (hereinafter "DFC") with its principal
place of business in Franklin Park, Illinois.
WHEREAS, LOL and DFC have agreed to enter into an Asset Purchase Agreement,
dated as of the Effective Date, wherein DFC will purchase certain assets that
LOL utilized to process milk, juice, cottage cheese, dips, and other related
products; and
WHEREAS, as a condition to such Asset Purchase Agreement, LOL and DFC agreed to
enter into a Trademark License Agreement wherein LOL would license certain
trademarks to DFC for use by DFC in connection with the manufacture, marketing,
promotion, distribution, and sale of certain products; and
WHEREAS, DFC has assigned it rights under the Asset Purchase Agreement, to
obtain the licenses granted herein, to DTMC.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, the parties agree as follows:
1. Definitions.
The following definitions shall apply for the purposes of this Agreement:
1.1 Trademarks - The term "Trademarks" shall mean only those trademarks
set forth in Exhibit A attached hereto and hereby incorporated by
reference.
1.2 Territory - The term "Territory" shall mean only the fifty states of
the United States.
1.3 Existing Territory - The term "Existing Territory" shall mean only
those geographic areas set forth on Exhibit B attached hereto and
hereby incorporated by reference.
1.4 Licensed Products - The term "Licensed Products" shall mean only
those products set forth in Exhibit C attached hereto and hereby
incorporated by reference.
1.5 Small Bottle Milk - The term "Small Bottle Milk" shall mean milk (as
defined in 21 Code of Federal Regulations Section 131.110, 1998
edition or as may be amended in the future) packaged in plastic
packaging containing less than 40 fluid ounces.
1.6 JV Company - The "JV Company" shall mean Landean, LLC, organized and
existing in accordance with the Joint Venture Agreement which is
entered into by LOL and DFC as of the Effective Date.
2. Grant of License.
Subject to the terms and conditions set forth herein:
2.1 LOL grants to DTMC an exclusive, royalty-free license to utilize
Trademarks in Territory in connection with the manufacture,
marketing, promotion, distribution, and sale of Licensed Products;
provided, however, the parties acknowledge and agree that LOL has
entered into a verbal license agreement with H.P. Hood licensing the
LAND O LAKES brand for use in connection with the production,
marketing, promotion, distribution, and sale of egg nog in the
eastern region of the United States. This agreement has been
assigned to DFC as of the Effective Date.
2.2 LOL and DTMC acknowledge and agree that Licensed Products may be
developed which utilize or may utilize nutrient content claims other
than those identified in Exhibit C. LOL and DTMC further acknowledge
that the license to use Trademarks with Licensed Products with such
additional nutrient content claims has been granted to the JV
Company; provided, however, LOL further grants to DTMC (and the JV
Company's license for such product in Territory shall terminate,
except for Small Bottle Milk which the parties expressly agree shall
remain an exclusive license to the JV Company) an exclusive,
royalty-free license to utilize Trademarks in Territory in
connection with the manufacture, marketing, promotion, distribution,
and sale of Licensed Products utilizing any specific nutrient
content claim only: (i) if DFC utilizes such nutrient content claim
on comparable products sold as a preponderance of DFC's regional
branded volume of comparable products, or (ii) if comparable
products which utilize such a nutrient content claim are sold as a
preponderance of volume of comparable products sold in Territory by
third party regional or national dairy companies.
2.3 In the event DFC's regional dairy company affiliates are selling in
good faith, as a regional branded strategy, certain products that
are not within the scope of the license granted herein to DTMC, but
are within the scope of the license granted to the JV Company and
DTMC desires to market such products in Existing Territory under one
or more Trademarks, the parties agree that DTMC shall provide
written notice to the JV Company of its desire to market such a
products under one or more Trademarks in Existing Territory. Upon
receipt of such notice, the JV Company shall have ninety (90) days
to notify DTMC as to whether or not JV Company desires to market
such products in Existing Territory under one or more Trademarks. If
the JV Company notifies DFC that it desires to market such products
in Existing Territory under one or more Trademarks and the JV
Company makes and continues to make good faith efforts to bring such
products to the Existing Territory, the parties agree that the JV
Company shall continue to be the exclusive licensee for Trademarks
with respect to such products throughout Territory. If the JV
Company (i) notifies DFC that it does not desire to market such
products in Existing Territory under one or more Trademarks
(provided that the JV Company's decision is not due to the action or
inaction of one or more DFC Board members of the JV Company which
impedes the JV Company from proceeding
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with the marketing of such products) or (ii) fails to make good
faith efforts to bring to the Existing Territory the products
described in the preceding sentence, LOL hereby grants an exclusive,
royalty-free license to DTMC to utilize Trademarks solely in
Existing Territory (and the JV Company's license for such product in
Existing Territory shall terminate) in connection with the
manufacture, marketing, promotion, distribution, and sale of such
product; provided that the JV Company's license with respect to the
use of Trademarks in connection with such products shall continue to
be in force throughout Territory, except for Existing Territory.
Notwithstanding the provisions of this Section, in the event, that
LOL, as a member of the JV Company, does not approve the JV
Company's marketing such product because LOL believes that such
product is inconsistent with the historic image or quality
associated with Trademarks, LOL shall notify DTMC of LOL's position.
If DTMC agrees with the position taken by LOL, the license rights
for such product shall remain with the JV Company and DTMC shall not
be granted a license to utilize Trademarks to market such product
(although the JV Company shall not pursue the product due to LOL's
disapproval). If DTMC does not agree with LOL's position, the
parties agree that the dispute as to whether such a product is
consistent with the historic image or quality associated with
Trademarks shall be resolved by a panel of three consumer marketing
experts; one each selected by DTMC and LOL and the third person
selected by the agreement of the DTMC and LOL panel members. The
parties agree that the use of alcohol as an ingredient in or
otherwise in connection with any potential product is presumptively
inconsistent with the historic image or quality of the Trademarks .
2.4 DTMC shall not grant any license or sublicense to utilize Trademarks
for any reason, in whole or in part, without LOL's prior written
consent; provided, however, that DTMC may sublicense Trademarks to
an entity wholly owned and controlled by DFC without LOL's prior
written consent, but such entity must enter into a sublicense
agreement with DTMC, in the same form as this Agreement with the
obligations guaranteed by DTMC and DFC, prior to use of any
Trademarks. The parties agree that DFC, DTMC, and any such entity
shall be jointly and severably liable for any breach of this
Agreement and for all of DTMC's obligations as set forth in this
Agreement. All sublicensees would be required to execute a
sublicense agreement reasonably acceptable to LOL. DTMC shall not
allow any product for which a license is hereunder granted to be
manufactured for it by any third party, in whole or in part, without
LOL's prior written consent. The parties agree that LOL's consent
for both sublicensing and manufacturing shall not be unreasonably
withheld. In the event such consent is withheld, LOL agrees to
provide DTMC with the basis for LOL withholding its consent. In the
event DTMC is able to cure the basis upon which LOL's consent is
withheld, to the satisfaction of LOL, LOL shall grant its consent
for such particular instance. LOL agrees to provide DTMC with a
response to DTMC's request for consent within ten (10) business days
of LOL's receipt of a written request from DTMC for such consent.
2.5 LOL agrees that it shall not use Trademarks in connection with the
sale of Licensed Products in Territory, but nothing herein shall
prohibit LOL from using or
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permitting third parties to use Trademarks in Territory on any
products other than Licensed Products, or outside of Territory on
any product and LOL expressly reserves the right to do so. All
rights not expressly licensed hereunder to DTMC are retained by LOL.
3. Trademarks.
3.1 DTMC hereby acknowledges the validity of Trademarks and LOL's
ownership of Trademarks. DTMC further acknowledges the
reasonableness and validity of this Agreement.
3.2 DTMC agrees that nothing herein shall give DTMC any right, title or
interest in Trademarks, except the right to use Trademarks in
accordance with the terms of this Agreement. DTMC further agrees
that Trademarks are the sole property of LOL and any goodwill
generated from any and all uses of Trademarks shall inure to the
benefit of LOL. DTMC agrees that nothing herein shall give DTMC any
right, title or interest in any of LOL's trademarks, except the
right to use Trademarks in accordance with the terms and conditions
of this Agreement.
3.3 DTMC agrees to assign to LOL, in the event of termination of this
Agreement, and without additional consideration, any rights and
equities related to Trademarks and any goodwill incidental to such
rights that may be vested or believed to be vested in DTMC as the
result of the activities of DTMC pursuant to this Agreement.
3.4 DTMC acknowledges and desires to maintain the validity of Trademarks
and the valuable goodwill associated with Trademarks for the benefit
of LOL. DTMC agrees, therefore, to use Trademarks in accordance with
those written instructions from LOL set forth in Exhibit D together
with such reasonable changes to such instructions as may be made
from time to time by LOL and proper trademark usage and consistent
with the character and image of Trademarks. DTMC shall not, directly
or indirectly, attack or assist a third party in attacking the
validity of Trademarks.
3.5 DTMC shall not claim any ownership rights in or to Trademarks or the
goodwill associated therewith or use any trademark or tradename
which is confusingly similar to Trademarks.
3.6 DTMC agrees, upon the request and at the sole cost and expense of
LOL, to aid and assist LOL in the registration and maintenance of
Trademarks and in any litigation or resolution of claims with
respect to Trademarks, as LOL may request.
4. Term.
The initial term of this Agreement shall commence on the day and year
first above written and shall continue in perpetuity unless terminated by
either party as provided for in Section 9.
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5. Quality Control.
5.1 DTMC desires to maintain the validity of Trademarks and goodwill
associated therewith and DTMC agrees, therefore, to maintain high
standards in manufacturing and packaging of Licensed Products.
5.2 DTMC agrees that Licensed Products shall be manufactured, packaged,
stored, distributed and sold in accordance with all applicable
federal, state or local laws, regulations, rules and guidelines,
including but not limited to good manufacturing practices prevailing
in the industry, now in effect or which may hereinafter come into
effect.
5.3 DTMC agrees that Licensed Products shall be manufactured and
packaged in accordance with the formulas, specifications, and
samples mutually approved by DTMC and LOL prior to the initial
manufacture of each and every Licensed Products by DTMC. The parties
agree that all formulas and specifications utilized by LOL as of the
effective date of this Agreement shall be deemed to be approved by
LOL. In the event DTMC desires to make any modifications to the
formulas or specifications for Licensed Products, it shall provide
LOL with written notice of DTMC's desire to make such modifications.
LOL shall respond to DTMC's request for such modifications as soon
as reasonably possible, but in no event more than thirty (30) days
after LOL's receipt of DTMC's notice of the proposed modifications
or LOL's approval of the proposed modifications shall be presumed.
The parties agree that no modifications shall be made to the
formulas or specifications for Licensed Products without LOL's prior
approval.
5.4 DTMC agrees to provide LOL, at DTMC's expense, with reasonable
samples of Licensed Products, on a quarterly basis, upon receipt of
requests from LOL. Any samples requested by LOL more frequently than
on a quarterly basis shall be at LOL's expense.
5.5 DTMC shall allow LOL, or its designated representative, to inspect,
on a confidential basis, a copy of all DTMC's quality control
manuals that relate to the safety and quality of the manufacture,
packaging and storage of Licensed Products. DTMC agrees to
manufacture, package and store Licensed Products in strict
accordance with such manuals.
5.6 DTMC shall keep and maintain, for a period of at least two (2) years
following each production run, complete and accurate production,
quality control and distribution records relating to Licensed
Products. LOL shall have the right to inspect all such records on a
confidential basis during normal business hours and subsequent to
providing DTMC with at least forty-eight (48) hours prior notice.
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6. Quality Assurance.
6.1 DTMC agrees to provide for and allow duly authorized representatives
of LOL, on a confidential basis, to inspect and test all facilities
at which Licensed Products are going to be manufactured prior to the
initial manufacture and on a semi-annual basis thereafter. The
parties agree that the facilities which were transferred to DFC by
LOL shall not be required to be inspected prior to initial
manufacture by DTMC in such facilities. LOL agrees any such
inspections shall be on a confidential basis during normal business
hours and further agrees to provide DTMC with at least forty-eight
(48) hours prior notice of any such inspection. The parties agree
that except in the event DTMC's facilities are unsanitary, are not
in compliance with applicable laws, regulations, or rules, or
conditions exist which do or may cause a health risk relating to
Licensed Products, the QA representatives of LOL shall not disclose
specific information relating to DTMC's facilities.
6.2 If any such facilities are in unsanitary condition or do not
otherwise comply with applicable law or government regulations, or
with the terms of this Agreement, or if in LOL's determination they
pose a risk of producing products not in accordance with the product
and packaging specifications, DTMC agrees that it or its
representative shall initiate such actions as may be necessary to
correct the deficiencies and to bring the facilities into
compliance. DTMC's failure to take diligent action to correct such
deficiencies and bring the facilities into compliance within seven
(7) days or failure to continue to take all commercially reasonable
actions necessary to complete the correction of such deficiencies as
soon as possible shall constitute a breach under this Agreement.
6.3 Except for routine annually scheduled inspections by a governmental
agency (except for an inspection which indicates an unsanitary
practice or public health concern; which DTMC shall report to LOL),
DTMC shall promptly notify LOL of all inspections by a governmental
agency of the facilities utilized to produce Licensed Products and
DTMC shall make available for review or provide to LOL upon request
a copy of any inspection report or audit relating to the facility,
equipment or ingredients utilized to manufacture Licensed Products.
DTMC shall notify LOL immediately by telephone of any such
inspections or audits which indicate the presence of salmonella,
listeria or any other bacteriological agent or substance which is
considered by health authorities as being indicative of either
unsanitary practices or of public health concern.
6.4 LOL shall have the right to participate in discussions relating to
the quality of Licensed Products. In the event that physical
conditions exist at the manufacturing facility that potentially will
adversely affect the quality of Licensed Products or in the event
Licensed Products do not comply with the finished product
specifications, the parties agree that LOL shall have the right to
direct DTMC managerial or supervisory personnel to take such action
(but not specific steps) as is necessary to immediately remedy such
conditions or non-compliance and/or LOL shall have the
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right to direct such personnel to discontinue the production of
Licensed Products until such time as such conditions are or
non-compliance is remedied.
7. Packaging, Labels, Advertising and Promotional Information.
DTMC agrees to submit to LOL, and LOL shall review for approval prior to
use, samples of all packaging, labels, advertising and other materials
which utilize, incorporate or make reference to Trademarks. The parties
agree that all packaging, labels, advertising, and other materials
utilized by LOL as of the Effective Date shall be deemed to be approved by
LOL. DTMC agrees that it shall not create any new packaging or make any
changes to LOL's existing packaging without obtaining LOL's prior written
approval in accordance with the procedure set forth in this Section. LOL
shall communicate to DTMC in writing LOL approval or any objection to such
samples within ten (10) working days after LOL's receipt of such samples
or LOL's approval shall be presumed. LOL's approval of such samples shall
not be unreasonably withheld. DTMC agrees to make any changes which LOL
requests to ensure that Trademarks are used in accordance with proper
trademark usage and are consistent with the character and image of
Trademarks. The parties agree to review the approval process on an annual
basis and if mutually agreed upon, the approval process described above
may be modified.
8. Pricing of Licensed Products.
LOL and DTMC acknowledge and agree that Trademarks are utilized on premium
priced products. DTMC agrees that when aggregated over a twelve (12) month
period each Licensed Product that it sells to a customer in any market
area that utilizes a Trademarks shall be priced at a wholesale price that
is at or above the average wholesale price charged for highest priced
private label product DFC sells to such customer.
9. Termination.
9.1 This Agreement may be terminated immediately by either party in the
event the other party:
(a) becomes insolvent;
(b) files or has filed involuntarily against it a petition under
the United States Bankruptcy Code or under or pursuant to any
state bankruptcy act or under any similar federal or state
law which is not removed within one hundred twenty (120)
days;
(c) admits in writing its inability to pay its debts generally
as they become due; or
(d) suspends or terminates its operations or liquidates or
dissolves.
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9.2 In the event of a change in control of DFC, DTMC, or a licensee of
Trademarks affiliated with DFC (or a successor in interest in the
event LOL does not exercise its right to buy-out), DTMC shall
promptly notify LOL of the change in control. LOL shall have the
option to terminate this Agreement in the event of such a change in
control of DFC or DTMC (or a successor in interest in the event LOL
does not exercise its right to buy-out) upon written notice to DTMC.
For the purposes of this Agreement, a change in control shall be
defined as (i) the government approved sale or other transfer of
fifty (50) percent or more of DFC's or DTMC's stock (or the stock of
a successor in interest in the event LOL does not exercise its right
to buy-out) in a single transaction or in a series of related
transactions, including a merger, consolidation, or other similar
transaction; or (ii) the government approved sale or other transfer
of fifty (50) percent or more of the assets of DFC or DTMC in a
single or a series of related transactions (or a successor in
interest in the event LOL does not exercise its right to buy-out)
(provided, however, a sale by DFC of its pickle assets shall not
constitute a change in control under this Agreement provided that
DFC remains in existence as a publicly traded company); provided
further, however, if the change in control of DTMC or a licensee
affiliated with DFC results in DTMC or a licensee affiliated with
DFC still being controlled directly by DFC, then such change in
control shall not trigger the rights granted to LOL pursuant to this
Section. For the purposes of this Section only, LOL may exercise its
option to terminate by providing DTMC with written notice, within
ninety (90) days of LOL's receipt of notice of a DFC change in
control, of LOL's intent to terminate this Agreement. The parties
agree that LOL shall be required to pay DTMC the amount of
Forty-seven Million dollars ($47,000,000.00) in consideration for
the exercise of its option to terminate this Agreement; provided,
however, the parties agree that commencing three (3) years from the
Effective Date, the price for such buy-out option shall be market
value, determined in accordance with the provisions described below,
instead of the pre-established Forty-seven Million dollar amount and
the parties agree the Forty-seven Million dollar amount shall not be
utilized as a basis or a factor in calculating the market value.
Market value shall be determined as follows: (i) DTMC (or a
successor in interest in the event LOL does not exercise its option
to buy-out) shall obtain a reputable, independent, and experienced
entity to establish a market value of the Trademarks to DFC in
connection with Licensed Products; (ii) LOL shall obtain a
reputable, independent, and experienced entity to establish a market
value of the Trademarks to DFC in connection with Licensed Products;
and (iii) the entity selected by DTMC (or a successor in interest in
the event LOL does not exercise its option to buy-out) and LOL shall
agree upon a third reputable, independent, and experienced entity
which entity shall make a determination designating the DTMC market
value or the LOL market value as the final market value for
Trademarks. The termination would be effective upon receipt of such
payment by DTMC. Nothing in this provision shall be deemed to
override or supersede in any respects the prohibition on assignment
as set forth in Section 23 of this Agreement; provided, however, if
such an assignment is necessary due to a change in control, the
parties agree that LOL must either consent to the assignment or
exercise its buy-out option described above.
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9.3 In the event of a change in control of a sublicensee, the
sublicensee shall promptly notify LOL of the change in control. LOL
shall have the right to terminate this Agreement only as to such
sublicensee in the event of such a change in control of sublicensee
upon written notice to sublicensee. For the purposes of this
Agreement, a change in control shall be defined as (i) the
government approved sale or other transfer of fifty (50) percent or
more of such sublicensee's stock, including a merger, consolidation,
or other similar transaction; or (ii) the government approved sale
or other transfer of fifty (50) percent or more of the assets of
sublicensee; provided, however, if the change in control of DTMC or
a licensee affiliated with DFC results in DTMC or a licensee
affiliated with DFC still being controlled directly by DFC, then
such change in control shall not trigger the rights granted to LOL
pursuant to this Section. Nothing in this provision shall be deemed
to override or supersede in any respects the prohibition on
assignment as set forth in Section 23 of this Agreement; provided,
however, if such an assignment is necessary due to a change in
control, the parties agree that LOL must either consent to the
assignment or exercise its buy-out option described above.
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10. Effects of Termination.
10.1 Upon the termination of this Agreement, the license and rights
granted hereunder shall immediately become null and void and DTMC
shall discontinue all uses of Trademarks; provided, however, DTMC
shall have a period of three (3) months from the date of termination
to sell or otherwise dispose of any existing inventory of Licensed
Products which display Trademarks. The parties agree that the terms
and conditions of this Agreement, including but not limited to the
provisions pertaining to quality control and quality assurance,
shall apply to all sales and other dispositions of Licensed Products
occurring during such three (3) months period.
10.2 Upon the termination of this Agreement, LOL shall have the option to
purchase, at DTMC's actual cost, a portion or all of any Licensed
Products and any labeling materials, advertising or promotional
materials, literature, art work, copy or store displays which
display the Trademarks which are in DTMC's custody or control at the
time of termination. DTMC agrees that any such labeling materials,
advertising or promotional materials, literature, art work, copy, or
store displays not purchased by LOL as described herein shall be
destroyed by DTMC no later than one hundred twenty (120) days after
the termination of this Agreement. DTMC further agrees to provide
LOL with written documentation signed by an officer of DTMC
certifying the destruction of such materials.
11. Breach; Injunctive Relief.
11.1 In the event DTMC, or a sublicensee, commits a breach of any of its
obligations under this Agreement, LOL may give DTMC written notice
of the breach and if DTMC or the sublicensee does not take diligent
action to correct such breach within the seven (7) day period or
does not cure the breach as soon as commercially practicable LOL
shall have the right to seek all such relief as is available to LOL
in law and in equity, including but not limited to an action for
money damages and/or injunctive relief, excluding termination.
11.2 In the event DTMC, or a sublicensee, commits a breach which has a
material adverse impact on the value of one or more of the
Trademarks and LOL is successful in obtaining money damages against
DTMC, or a sublicensee, DTMC agrees, in DTMC's sole discretion, (i)
to pay to LOL, as a right of contract which shall not be disputed by
DFC, treble such damages as liquidated damages and not as punitive
damages (and DFC hereby guarantees the payment of such liquidated
damages) or (ii) to immediately terminate this License Agreement.
11.3 In the event DTMC, or a sublicensee, commits a breach, the parties
hereby expressly agree that LOL shall have the right to injunctive
relief, including but not limited to a permanent restraining order
enjoining any continuing breach and/or an order that DTMC or the
appropriate sublicensee take such actions as ordered by the court to
ensure that the breach does not reoccur.
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11.4 The parties agree that the losing party in any action brought shall
pay the reasonable attorneys' fees and other costs incurred by the
winning party or parties, in the prosecution or defense of such
action.
12. Production and Operations Expenses.
The parties agree that except as expressly set forth herein DTMC shall
bear all costs and expenses arising from the manufacture, packaging,
storage, distribution, marketing, sale and other operational expenses
relating to Licensed Products.
13. Consumer Correspondence.
The parties agree that packaging for all Licensed Products shall bear a
toll-free telephone number that is owned and answered by or on behalf of
LOL. LOL shall invoice DTMC for LOL's actual cost of providing such
services necessary to respond to all consumer correspondence received by
LOL relating to Licensed Products. LOL shall process and handle all
consumer correspondence connected with or relating to Licensed Products
and provide DTMC with a monthly summary of all such consumer
correspondence; provided, however, LOL shall promptly notify DTMC of any
consumer correspondence which indicates there may be a health or safety
concern relating to any product for which DTMC has been granted a license
hereunder. The parties agree to formalize the provision by LOL of such
consumer affairs services in a separate formal written agreement.
14. Product Recall or Recovery.
Both parties agree to promptly notify the other party of all circumstances
that would cause a company, utilizing reasonable business judgement, to
consider the possibility of the implementation of a product recall or
recovery of Licensed Products. In each event, DTMC shall make the initial
decision as to whether or not to implement a product recall or recovery.
DTMC agrees to implement, in accordance with product recall and recovery
procedures mutually agreed upon by the parties, all product recalls and
recoveries of Licensed Products. DTMC shall permit LOL to cooperate and
assist in implementing such recall or recovery at DTMC's cost and expense.
All such recalls and recoveries shall be at DTMC's sole cost and expense.
If DTMC reasonably declines to implement a product recall or recovery, LOL
may do so at its own cost and expense. If it is later determined that DTMC
did not act reasonably in declining to implement a product recall or
recovery, it shall reimburse LOL the costs of such recall or recovery.
15. Indemnification.
15.1 DTMC hereby indemnifies and holds harmless LOL, and will defend or
cause LOL to be defended, from and against any and all claims,
demands, causes of action, losses, damages, costs and expenses
(including reasonable attorneys' fees) arising out of or in any way
connected with the manufacture, packaging, storage, distribution or
sale of Licensed Products by DTMC; provided, however, such
obligation of indemnification shall not apply to any claims,
demands, causes of
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action, losses, damages, costs and expenses arising out of or in any
way connected with the acts, omissions, or negligence of LOL. This
indemnity shall survive the termination of this Agreement.
15.2 DTMC represents and warrants that Licensed Products shall not be
misbranded or adulterated. DTMC hereby indemnifies and holds
harmless LOL, and will defend or cause LOL to be defended, from and
against any and all claims, demands, administrative actions, causes
of action, losses, damages, costs and expenses (including reasonable
attorney's fees) arising out of or in any way connected with the
misbranding or adulteration of Licensed Products by DTMC. This
indemnity shall survive the termination of this Agreement.
15.3 LOL represents and warrants to DTMC that Trademarks are owned by LOL
and the use of Trademarks by DTMC, as authorized by this Agreement,
shall not infringe upon the rights of any third party.
15.4 LOL hereby indemnifies and holds harmless DTMC, and will defend or
cause to be defended, from and against any and all claims, demands,
causes of action, losses, damages, costs and expenses (including
reasonable attorneys' fees) arising out of or in any way connected
with DTMC's authorized use of Trademarks. This indemnity shall
survive the termination of this Agreement.
16. Other Obligations.
LOL and DTMC do not hereby assume, do not agree to assume and shall not be
responsible for any liability or obligation of any kind or nature of the
other party, except as expressly provided in this Agreement.
17. Entire Agreement; Amendments.
This Agreement and the Exhibits attached hereto constitute the entire
agreement between the parties and supersedes all previous discussions and
agreements. This Agreement may be amended or modified only by a writing
duly executed by authorized representatives of the parties.
18. Confidentiality.
The terms and conditions of the Confidentiality Agreement attached hereto
as Exhibit D are hereby incorporated by reference.
19. Severability.
The provisions of this Agreement shall be severable and the invalidity of
any provision, or portion thereof, shall not affect the enforceability of
the remaining provisions of this Agreement.
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20. Waiver.
The waiver by either party of a breach of any provision of this Agreement
shall not constitute or be construed as a waiver of the same or any other
future breach of any provision(s) in this Agreement.
21. Relationship of Parties.
This Agreement is not intended and shall not be construed to constitute
either party as the joint venture or franchising partner, employee, agent
or legal representative of the other, and neither party shall have any
authority, express, implied or apparent, to assume or create any
obligations on behalf of or in the name of the other party.
22. Notice.
Any notice required or permitted under this Agreement shall be deemed to
have been properly given if a written notice shall have been
hand-delivered to the addressee or a written notice shall have been
deposited, first class, postage prepaid, in the United States mail
addressed to the respective parties as follows or such other address as
each party may, in the future, designate in writing to the other party:
To DTMC: Xxxx Foods Company
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Attention: General Counsel
To LOL: Land O'Lakes, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attention: Law Department
23. Assignment.
Except for the right to sublicense as set forth in Section 2.4, neither
this Agreement nor DTMC's rights or obligations may be assigned or
otherwise transferred, in whole or in part, by DTMC without the prior
written consent of LOL; including, but not limited to, by merger or
consolidation or otherwise by operation of law, unless DTMC is the
surviving entity of such a merger or consolidation. Any such assignment or
other transfer is void.
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24. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the state of Minnesota or Federal trademark law where applicable.
IN WITNESS WHEREOF, authorized representatives of the parties hereto have
executed this Agreement effective the day and year first above written.
DTMC, INC. LAND O'LAKES, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxxxxxxx X. Xxxxxxxxxx
-------------------------------- ---------------------------------
Print Name: Xxxx Xxxxxx Print Name: Xxxxxxxxxxx X. Xxxxxxxxxx
Title: Secretary Title: Executive Vice President
Date: July 10, 2000 Date: July 6, 2000
XXXX FOODS COMPANY
By: /s/ Xxxx Xxxxxxxxx
--------------------------------
Print Name: Xxxx Xxxxxxxxx
Title: Vice President
Date: July 10, 2000
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EXHIBIT A
LAND O LAKES GOOD THINGS FROM THE LAND
ULTRA FRESH
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EXHIBIT B
All accounts with sell to and ship to locations in the states of:
Minnesota
North Dakota
South Dakota
That portion of the state of Iowa west of Interstate 35 and north of Interstate
80 (including the Des Moines market) as such highway exists on the effective
date of this Agreement.
That portion of the state of Nebraska east of US highway 81 as such highway
exists on the effective date of this Agreement.
That portion of the state of Wisconsin west of US highway 51 (including the
Wausau market) as such highway exists on the effective date of this Agreement.
The following counties in the state of Montana:
Xxxxxx Xxxxxxxxx
Xxxxxx Valley
Wibaux XxXxxx
Xxxxxx Prairie
Richland Xxxxxx
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EXHIBIT C
Licensed Products shall mean only those products set forth below and only to the
extent that they meet the standards of identities for such products set forth in
21 Code of Federal Regulations (April 1998 edition or as may be amended in the
future):
Milk (Section 131.110), except for Small Bottle Milk
Buttermilk (Section 131.112)
Yogurt (Section 131.200,131.203, and 131.206)
Eggnog (Section 131.170)
Cottage Cheese (Section 133.128)
Ice Cream (Section 135.110)
Juices (Section 146.132, 146.135, 146.137, 146.140, 146.145, 146.146, and
146.185)
Licensed Products shall also mean ice cream novelties and frozen novelties, ice
cream mix, dairy and vegetable oil based dips and juice drinks (for which no
standard of identity currently exists).
The parties expressly agree that Licensed Products shall not include any of the
foregoing products to the extent such product utilizes a nutrient content or
other claim, except as follows:
(1) A nutrient content claim made by LOL with respect to such product prior to
the Effective Date.
(2) A nutrient content claim that could have been made by LOL with respect to
such product prior to the Effective Date based upon the ingredients
contained in such product (without the addition of any ingredients).
(3) A nutrient content claim regarding (i) sodium, calories, fat, or
cholesterol, but specifically excluding any product which makes a
fortification or enrichment claim except for milk being fortified with
vitamins A, C, D, or E, or skim milk solids and juice being fortified with
vitamin C, (ii) lactose reduction, or (iii) added lactobacillus,
acidophilus, or bifidus bacteria.
THE PARTIES EXPRESSLY AGREE THAT ALL OTHER PRODUCTS INCLUDING, BUT NOT LIMITED
TO, BUTTER, CHEESE, WHEY, MILK AND DAIRY FRACTIONS, POWDERED, CONDENSED AND
EVAPORATED PRODUCTS, ASEPTICALLY PROCESSED PRODUCTS OR PRODUCTS PRODUCED BY ANY
OTHER PROCESS WHICH CREATES A SHELF STABLE PRODUCT, CREAM CHEESE, MAYONNAISE,
SALAD DRESSING, CHEESE DIPS, SALSA, NON-DAIRY AND DAIRY CREAMS, HALF & HALF,
SOUR CREAM, AND SMALL BOTTLE MILK ARE EXCLUDED FROM THE DEFINITION OF LICENSED
PRODUCTS.
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EXHIBIT D
Trademark Usage Instructions
- Trademarks must be used exactly as registered. The Trademarks, and elements
thereof, may not be modified in any way.
- The Trademarks must always be followed with an appropriate noun.
- The Trademarks must always be used with the appropriate trademark symbol ((R)
or (TM)).
- The Trademarks must always appear utilized only those colors traditionally
utilized by LOL.
- The LAND O LAKES trademark must never be split between lines.
- The LAND O LAKES trademark must never be abbreviated.
- The Trademarks must never be used in connection with any pornographic, lewd,
obscene, discriminatory, or otherwise inappropriate materials.
- The Indian Maiden trademark must only be used on packaging or advertising
materials. This trademark may not be used on clothing or other materials and
there can never be an "appearance" by someone dressed as the Indian Maiden.
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