EXHIBIT 10.35
LICENSE AGREEMENT
THIS AGREEMENT is entered into as of July 19, 2000 (hereinafter the "Effective
Date"),
BETWEEN:
X.X. XXXXXXX & ASSOCIATES PTY. LIMITED, a company incorporated under the laws of
New South Wales, (hereinafter called "Xxxxxxx"), its registered office is at
00/0-00 Xxxxxxx Xxxxxx, Xxxxxxxx, X.X.X., 0000, Xxxxxx, Xxxxxxxxx.
AND
XXXXX BROTHERS, INC., a Delaware corporation, with its principal place of
business at 0000 X. Xx Xxxxxx Xxxxx, Xxxxxxxx, XX 00000, U.S.A., on behalf of
itself and all existing and hereafter acquired or created subsidiaries or other
business entities directly or indirectly controlled by Xxxxx Brothers, Inc.,
(hereinafter collectively referred to as "Xxxxx Brothers" or the "Licensee").
PREAMBLE
WHEREAS:
X. Xxxxxxx has been, is and will be engaged in the business of research and
development to manufacture, process and package 3-dimensional hollow fried
snack food products (hereinafter the "Product"), including without
limitation a kangaroo-shaped Product. In conducting its business, Xxxxxxx
has and will acquire technical experience, know-how, skill and specialized
knowledge and information, and has developed and acquired, and will develop
and acquire production methods, computer programs, specifications,
formulae, recipes, ideas, inventions, designs and improvements thereto in
connection with the manufacturing, processing and packaging the Product
(hereinafter "Know-How"), including without limitation the kangaroo-shaped
Product.
X. Xxxxxxx is, and will become, the owner of patent rights (including without
limitation U.S. Letter Patent No. 5,268,187), design patent rights
(including without limitation U.S. Design Patent Nos. D343,495 and
D371,671), copyrights, trademark rights (including without limitation for
"Jumpy's" if granted) and trade secret rights and improvements thereto in
relation to the Product and to the Know-How (hereinafter collectively
referred to as the "Intellectual Property").
X. Xxxxx Brothers wishes to obtain a license from Xxxxxxx to use the
Intellectual Property and other intangible rights pertaining to the Product
and the Know-How pertaining to the manufacturing, processing, packaging,
marketing and promoting of the Product.
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BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
X. Xxxxx Brothers is engaged in the manufacture and marketing of food
products, in particular snack foods, and has technical experience,
know-how, skill and specialised knowledge, information, production methods,
specifications, formulae, recipes and designs, in particular but without
limitation relative to the manufacture of Sheeted 2-D snack foods products,
some of which is in common with the Know-How utilised to manufacture,
process or package the Product.
IT IS HEREBY AGREED AS FOLLOWS:
ARTICLE (1)
Paragraphs A through D of the above Preamble are parts of this Agreement and are
meant to be enforceable and to create rights and duties to the same extent as
any and all other provisions of this Agreement.
ARTICLE (2)
RIGHTS
1. Xxxxxxx hereby grants to Xxxxx Brothers an exclusive license (except as
provided in Paragraph 3 immediately below) to use all Intellectual Property
and Know-How to manufacture, process, package, market, promote and sell the
Product in the United States of America including its territories, military
bases and facilities and the Commonwealth of Puerto Rico (hereinafter
collectively the "Territory") and to sublicense third parties to
manufacture, process, package, market, promote, and sell the Product in the
Territory.
2. For as long as this Agreement is in effect, Xxxxxxx will not, directly or
indirectly, grant a right to use the Intellectual Property or the Know-How
to any other third party to manufacture, process, package, market, promote
or sell Product within the Territory and will not itself manufacture,
process, package, market, promote or sell Product in the Territory.
3. The Licensee agrees that it is not granted under this Agreement any rights
to manufacture for sale to third parties, the specialized patented sheeting
equipment claimed in US Letter Patent 5,268,187, the rights to which have
been licensed to Heat and Control Pty. Ltd. of San Francisco, California.
4. To effect the transfer in useable form of the Know-How and Intellectual
Property from Xxxxxxx to Xxxxx Brothers, Xxxxxxx shall disclose to Xxxxx
Brothers, as soon as reasonably practicable after the Effective Date of
this Agreement but in no event later than thirty (30) days after the
effective date of this Agreement, all Know-How and Intellectual Property in
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BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
tangible form as would be reasonably necessary for a person skilled in the
snack food business to be able to manufacture, process, package, market,
promote and sell 3-dimensional hollow fried snack food products.
5. Any modification or improvement by Xxxxxxx to the Know-How or Intellectual
Property made before the termination of this Agreement shall be included in
the license to Xxxxx Brothers without additional charge or fee due to
Xxxxxxx. Any modification or improvement by Xxxxx Brothers to the Know-How
or Intellectual Property, including without limitation any intellectual
property rights to such modification or improvement, shall be owned by
Xxxxx Brothers. However, the use by Xxxxx Brothers of any such modification
or improvement shall not be used to reduce the Licensee's obligations under
this Agreement to pay the fees and royalties as specified in Article 4.
6. Xxxxx Brothers shall use reasonable commercial effort, consistent with
Xxxxx Brothers' business plans, to promote the sale of the Product in the
Territory. Nothing in this Agreement or otherwise shall prevent Xxxxx
Brothers from manufacturing, processing, packaging, marketing, promoting or
selling, for itself or any third party, anywhere in the world including the
Territory, any snack food product other than the Product, even if such
snack food product competes directly with the Product. However, Xxxxx
Brothers shall not sell the Product outside the Territory or to any person
or entity that Xxxxx Brothers knows to have the intention of reselling or
otherwise distributing the Product outside the Territory without the
express prior written permission of Xxxxxxx.
ARTICLE (3)
TECHNICAL SERVICES
To assist the Licensee, Xxxxxxx will:
1. Provide the Licensee with written specifications for process machinery and
will give the Licensee names and contact details of U.S.A. based equipment
manufacturers and suppliers.
2. Where practicable, advise on the modification, adaptation and suitability
of Licensee's existing plants and equipment to manufacture, process and
package the Product.
3. Provide the Licensee in writing with raw material specifications and
suitable U.S.A. based suppliers.
4. If requested by the Licensee and giving Xxxxxxx reasonable notice, attend
production trials and start up of production of the Product in the
Licensee's Bluffton Plant subject to agreement by the Licensee to reimburse
Xxxxxxx'x actual and reasonable costs and expenses in relation to this
attendance. The length of Xxxxxxx'x attendance and of Xxxxx Brothers' duty
to reimburse Xxxxxxx'x actual and reasonable costs and expenses will be
mutually agreed in writing by Xxxxx Brothers and Xxxxxxx.
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BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
5. Promptly inform and disclose in tangible form to the Licensee all
improvements, additions, alterations and modifications which it may
develop, learn or discover from time to time related to the Product,
Know-How and Intellectual Property without payment by the Licensee of any
further charges, fees or royalties.
6. The Licensee shall provide Xxxxxxx with samples of the Product including
the packaging from time to time upon written request for quality analysis
and guidance in technical and marketing matters, but no more often than
once in any three (3) month period.
ARTICLE (4)
FEES AND ROYALTIES
1. In consideration of the obligations and services provided by Xxxxxxx and
the rights granted to the Licensee according to the terms of this
Agreement, the Licensee shall pay to Xxxxxxx fees and royalties as follows:
A. Except as otherwise provided in paragraph 4 of Article 8, a royalty
calculated as [*] of the Licensee's Net Sales of the Product to
wholesalers, distributors or retailers (collectively "Trade"). In the
case that the Licensee sells to an intermediate marketing or
distribution company or the like wholly or partly owned or controlled
by the Licensee, then the royalty shall be calculated based on the Net
Sales of such company of the Product to the Trade.
B. "Net Sales" shall mean [*].
X. Xxxxxxx will be paid a technical fee of [*] per day (in addition to
actual and reasonable related costs and expenses) for services and
attendance at production trials and start-up of production of the
Product as provided under Article 3, paragraph 4. However, any
payments of daily fees by Licensee shall be credited against any
royalties payable to Xxxxxxx in the first full year after commencement
of sales of Product.
2. The royalty fees shall be calculated, due and payable quarterly (every
three (3) months). Payments shall be made within thirty (30) days after the
end of each calendar quarter.
3. If any sum payable pursuant to this Agreement shall not have been paid to
Xxxxxxx by the due date, and unless the delay is due to or is a result of
causes or reasons beyond the Licensee's control or command, the Licensee
shall (without any prejudice to any other claims or remedies of Xxxxxxx)
pay interest thereon to Xxxxxxx at a per annum rate two percent (2%) above
the prime lending rate of Xxxxx Fargo Bank, N.A., then prevailing. The
interest is payable in respect of the period commencing on the due date of
the payment and ending on the actual date of payment at the prevailing
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("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
rates over this period. Any exchange rate loss suffered by Xxxxxxx in
Australian dollars as a result of the payment of royalties by Licensee more
than sixty days after the due date for such payment, will be paid by the
Licensee unless the delay is due to or is the result of causes or reasons
beyond the Licensee's control or command.
4. Payments by Licensee hereunder shall be made by wire transfer to a bank
account specified in writing by Xxxxxxx to Licensee at least thirty (30)
days before the due date of payment.
ARTICLE (5)
RECORDS
The Licensee shall keep accounts and provide Xxxxxxx with a sales statement
within thirty (30) days from the end of each calendar quarter (three (3) months)
which statement shall indicate the information necessary to show how the royalty
for such calendar quarter was calculated. Xxxxxxx shall be entitled to have the
accounts of the Licensee with respect of the Product examined by a certified
public accountant acceptable to Xxxxx Brothers during Xxxxx Brothers normal
business hours or at such other time agreed to by the parties and in such a
manner so as not to adversely effect the conduct of Xxxxx Brothers' business.
The cost of the examination by the accountant will be paid by Xxxxxxx unless the
royalties paid by the Licensee are found to be more than 5% less than the amount
due pursuant to the terms of this Agreement. But in no event shall Xxxxx
Brothers be obligated to pay any cost of such an examination in excess of the
royalty amount found not to have been paid. If any such examination finds that
Xxxxx Brothers paid more royalties than were due, Xxxxx Brothers shall get a
credit against future royalty payments in the amount of such overpayment less
the cost of the examination, which examination cost shall not exceed the credit
for overpayment of royalties. Xxxxxxx shall not have the right to demand an
examination of Xxxxx Brothers' accounts more than once in any twelve (12) month
period.
ARTICLE (6)
INTELLECTUAL PROPERTY RIGHTS & CONFIDENTIALITY
1. The Know-How and Intellectual Property together with all subsequent
improvements thereto made by Xxxxxxx and licensed to the Licensee shall
remain the property of Xxxxxxx at all times and may only be used by the
Licensee in accordance with the terms of this Agreement and all rights
thereto revert to Xxxxxxx on expiration or lawful termination of this
Agreement.
2. For the period set forth in Article (6), paragraph 5 below in so far as the
Know-How and any Licensor trade secrets are not publicly known, the
Licensee will not, without prior written agreement from Xxxxxxx,
intentionally divulge the Know-How, trade secrets or any part of it than
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BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
any third party or any of its related or associated companies outside the
Territory other than its agents or representative who may have a need to
know such information. Before disclosing any part of the Know-How or trade
secrets to its agents or representatives, the Licensee will obtain a
binding Confidential and Non Disclosure Agreement, in the same form as
Exhibit A attached hereto, signed by such agents or representatives.
3. Notwithstanding the foregoing, the Licensee shall not be liable or
responsible for the disclosure of Know-How that:
A. Is or becomes known to the public other than by breach of any
non-disclosure obligation of the Licensee;
B. Is rightfully received by the Licensee from a third party;
C. Is demonstrated by the Licensee to have been developed independently
of any Know-How furnished or disclosed by Xxxxxxx;
D. Can be demonstrated to have been legally in the possession of and
known to the Licensee prior to March 24, 1999;
E. Has been disclosed by Xxxxxxx to a third party without restrictions on
disclosure; or
F. Is disclosed by the Licensee pursuant to an order or demand by a court
or other governmental authority.
4. For the purpose of this Agreement, the Know-How or any part of the Know-How
which is specific as to Xxxxxxx'x products, processes and equipment shall
not be deemed to be within the public domain merely because it may be
embraced by more general published or available information. In addition,
any combination of features shall not be deemed to be within the public
domain merely because individual features are published or available, but
only if the combination itself and its principle of operation are published
or available.
5. The Licensee's obligation with respect to confidentiality shall endure,
subject to the provisions of Article 6, paragraph 3, as a continuing
undertaking for a minimum period of ten (10) years from the Effective Date
and thereafter for any remaining term of this Agreement and for three (3)
years thereafter subject only to such general or limited written release
that Xxxxxxx may in its absolute discretion and from time to time give.
6. The provisions of this Article 6 regarding confidentiality of Xxxxxxx'x
Know-How and trade secrets shall supercede and replace those contained in
the Confidentiality Agreement of March 24, 1999, between Xxxxxxx and Xxxxx
Brothers, and that Confidentiality Agreement shall have no further force
and effect on the parties after the Effective Date.
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BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
ARTICLE (7)
TRADE MARKS AND BRAND NAMES
1. Quinlan will file an application with the U.S. Trademark Office for
registration of the marks "Jumpy's" kangaroo snack food shape and a
graphical kangaroo design for snack foods. Xxxxx Brothers will incorporate
the graphical kangaroo design on the packaging for any kangaroo-shaped
Product. The cost of such application and its prosecution through the U.S.
Trademark Office will be paid exclusively by Xxxxxxx.
2. The packaging for any Product shall indicate that the Product is
manufactured and marketed under a license from Xxxxxxx and will note
Xxxxxxx'x Patent and/or Trade Xxxx rights as required by U.S. law.
3. The Licensee may create, register in its name and use any brand name of its
choosing under which the Product is to be marketed and sold; provided
however, that on the expiration or lawful termination of this Agreement,
the Licensee will within 120 days discontinue the use of this brand name in
respect of marketing, promoting and selling the Product.
ARTICLE (8)
WARRANTY
1. Xxxxxxx warrants in good faith that the Know-How to be supplied to the
Licensee hereunder will enable the Licensee to manufacture, process and
package the Product at a cost that will permit Xxxxx Brothers to earn a
reasonable profit as is customary in the trade.
2. Xxxxxxx agrees to indemnify and hold harmless the Licensee (including its
officers, directors, employees and agents) from and against any claims,
actions or demands alleging that the Product (except any developed without
Xxxxxxx'x involvement), Know-How or Intellectual Property infringe any
intellectual property right of any third party; provided that the Licensee
shall promptly notify Xxxxxxx in writing of any such claim, action or
demand, that Xxxxxxx shall have full responsibility to control the
settlement or litigation of any such claims, actions or demands, and that
Licensee shall reasonably cooperate with Xxxxxxx in the defense of any such
claims, actions or demands; provided further that Xxxxxxx shall not settle
any such claim, action or demand on terms that would materially limit Xxxxx
Brothers' rights or ability to manufacture, process, package, market,
promote or sell the Product or any other snack food product and to exploit
and use without limitation the Intellectual Property and Know-How without
Xxxxx Brothers' prior written consent, obtained by Xxxxxxx after full
disclosure of all relevant facts to Xxxxx Brothers. Xxxxxxx shall reimburse
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BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
Xxxxx Brothers' reasonable costs and expenses actually incurred in
cooperating with Xxxxxxx as provided in this paragraph.
3. Xxxxxxx warrants that it has, and as to any improvements or modifications
will have, the unconditional right to grant the license rights (except as
provided in Article 2, paragraph 3 above) provided Xxxxx Brothers under
this Agreement. Xxxxxxx further warrants that it has granted no third party
any rights inconsistent with or in derogation of the license rights
provided to Xxxxx Brothers under this Agreement.
4. [*]
ARTICLE (9)
DURATION AND TERMINATION
1. Subject to the parties' rights to terminate as set forth herein or
otherwise provided by law, this Agreement shall take effect on the
Effective Date and shall continue for a period of ten (10) years, and shall
be extended automatically for additional period(s) of five (5) years each
after the expiration of the initial ten (10) year period and each
subsequent period unless the Licensee gives notice of termination at least
six (6) months before expiration of the initial or any extension period.
2. If production or selling by Licensee of the Product ceases for any reason,
except for reasons beyond the Licensee's control including, without
limitation, acts of God, action or any order of a government, fire, flood,
strike, supply problem, severe weather or war, for more than six (6) months
in any continuous period, either party shall have the right to terminate
this Agreement after giving sixty (60) days notice to the other party. If
the Licensee has not commenced active sales and marketing of the Product
before March 31, 2001, then Xxxxxxx shall have the right to terminate this
Agreement by giving sixty (60) days notice; provided, however, that this
period shall be extended by the amount of time equivalent to the time of
any delay caused, directly or indirectly, by Xxxxxxx.
3. If Xxxxxxx materially fails to fulfill its obligations under this
Agreement, the Licensee is entitled to give ninety (90) days notice to
remedy such a breach, and unless the breach is remedied within such period
from receipt of the notice, the Licensee will continue to have the right to
manufacture, process, package, market, promote and sell the Product and may
withhold payment of further royalties accruing from date of the notice
until the breach is remedied by Xxxxxxx. After Xxxxxxx remedies such
default to Licensee's reasonable satisfaction, License will pay Xxxxxxx any
royalties withheld less any damages or lost profits suffered by Xxxxx
Brothers as a result of Xxxxxxx'x breach.
4. If the Licensee materially fails to fulfill its obligations under this
Agreement, then Xxxxxxx is entitled to give ninety (90) days notice to
remedy such a breach, and unless the material breach is remedied within
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AMENDED.
such period from receiving the notice, Xxxxxxx shall have the right to
suspend performance of its obligations under Article (3) of this Agreement.
However, the Licensee has the right to refer to arbitration Xxxxxxx'x claim
of material breach according to the terms of this Agreement. Further, if
the Licensee rectifies the breach and notifies Xxxxxxx within sixty (60)
days of suspension, Xxxxxxx shall reinstate performance of its obligations
under this Agreement and Xxxxxxx'x performance will then continue as if it
had not been suspended. If after a total period of one hundred and fifty
(150) days of receipt of notice, the material breach is not remedied by
Licensee, Xxxxxxx has the right to terminate this Agreement by giving Xxxxx
Brothers notice, provided that Xxxxxxx shall not have the right to
terminate this Agreement if an arbitration as provided herein is pending.
5. If a receiver shall be appointed for the whole or any material part of
Licensee's assets used by Xxxxx Brothers to manufacture Product, or if an
order is entered by a court with jurisdiction over Licensee, or a
resolution passed for winding up the Licensee, or the Licensee otherwise
becomes subject to or takes advantage of the bankruptcy or insolvency laws
applicable to it (unless the Licensee emerges from any such proceedings as
a solvent corporation and undertakes with Xxxxxxx to be bound by the terms
of this Agreement) then this Agreement shall, if permitted by law,
terminate upon notice to the Licensee from Xxxxxxx.
6. The termination of this Agreement for whatever reason shall not effect the
rights of Xxxxxxx and the Licensee to seek payment of any fees or other
payments then due. The termination of this Agreement shall not in any way
prejudice or affect any obligation hereunder which by its terms is
expressed to continue thereafter.
7. On the expiration or rightful termination of this Agreement as provided
herein, the Licensee shall forthwith discontinue the use of the Know-How
and Intellectual Property and the manufacture of the Product and deliver to
Xxxxxxx at its registered office free of charge all documents and copies
thereof embodying or containing Know-How.
ARTICLE (10)
INFRINGEMENT OF INTELLECTUAL PROPERTY
In the event that at any time hereafter there shall not be pending in the
Territory a suit by Xxxxxxx against an infringer or misappropriator of any of
the Intellectual Property based on infringement or misappropriation of such
scale that if licensed on the terms imposed in this Agreement, the annual
royalty returned to Xxxxxxx would be at least Five Thousand Dollars ($5,000) per
year, then if any person or company shall produce, market or sell products
coming within the definition of Product, and if:
1. Xxxxx Brothers shall give Xxxxxxx written notice that such production,
marketing or sale is an infringement or misappropriation of any of the
Intellectual Property; and
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BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
2. Xxxxx Brothers shall request in writing that suit be brought under the
Intellectual Property so infringed or misappropriated against such person
or company because of such infringement or misappropriation; and
3. Xxxxx Brothers and Xxxxxxx obtain an opinion from a mutually acceptable law
firm in the Territory that such person or company is likely infringing or
misappropriating any of the Intellectual Property; and
4. Xxxxxxx fails to bring such suit for infringement or misappropriation of
the Intellectual Property identified in the law firm's opinion or to obtain
discontinuance of such infringement or misappropriation within one hundred
twenty (120) days after receipt of Xxxxx Brothers' request under
subparagraph 2 above; and
5. Sales of such person or company of such products is of such volume as to
produce, if licensed, royalties of at least Five Thousand Dollars ($5,000)
per year, then, in such case, Xxxxx Brothers shall be permanently relieved
of the payment of royalties that would otherwise accrue from the time
conditions 1-5 are all satisfied until the day Xxxxxxx shall bring suit
against the likely infringer or misappropriator or shall obtain
discontinuance of said infringement or misappropriation. Failure to pay
royalties pursuant to this Article shall not adversely affect any rights of
Xxxxx Brothers under this Agreement or provide a basis for Xxxxxxx to
exercise any rights otherwise available to it contrary to the interest of
Xxxxx Brothers under this Agreement.
ARTICLE (11)
NOTICES
Any notices given by either party in this Agreement shall be duly given if sent
by (a) registered airmail or (b) reputable international overnight courier (with
confirmation of receipt), to the other party at its address given in this
Agreement or to such other address as may be indicated by one party to the other
in writing in accordance with the terms of this Article 11. Any notices given by
telex, facsimile or e-mail are not considered effective until confirmed by
registered airmail or delivery by a reputable international overnight courier.
Notices shall be deemed to have been received on the working day following the
date on which the notice is delivered by registered airmail or internationally
recognized express courier.
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BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
ARTICLE (12)
MODIFICATIONS
No modifications of this Agreement shall be binding upon the parties hereto
unless made in writing and signed by both parties.
ARTICLE (13)
ASSIGNMENT
This Agreement shall be binding upon and enure to the benefit of the successors
and assigns of the parties. Notwithstanding the foregoing, the complete rights
and obligations of a party (the "Assigning Party") may be assigned, without the
consent of the other party, by the Assigning Party to any corporation which is
or becomes a wholly owned subsidiary or parent of the Assigning Party, or which
survives a merger in which the Assigning Party participates or to any
corporation or other person or business entity which acquires all or
substantially all of the assets of the Assigning Party; provided that the party
to whom such assignment is made agrees to comply in full with the obligations of
the Assigning Party hereunder.
ARTICLE (14)
ENTIRE AGREEMENT
This Agreement contains the entire understanding of the parties and there are no
representations, warranties or undertakings other than those expressly set forth
herein.
ARTICLE (15)
DISPUTE, LAW AND JURISDICTION
The Agreement shall be governed by and construed in accordance with the internal
laws of the state of Arizona U.S.A. without giving effect to any choice of law
rule that would cause the application of the laws of any other jurisdiction to
the rights and duties of the parties. Both parties shall try to settle any
dispute or disagreement which may arise in connection with any interpretation(s)
of this Agreement or the performance or non-performance thereof in good faith
and mutual trust. Should they, however, fail to arrive at a mutually
satisfactory settlement, resolution of any such dispute shall, at the request of
either party, be determined by arbitration. The arbitration shall be conducted
under the Commercial Arbitration rules of the American Arbitration Association
then in effect except where modified in this Agreement. The arbitration shall be
held in Phoenix, Arizona or such other location selected by the mutual agreement
of the parties, and the language for arbitration shall be English. The matter
will be resolved by a sole arbitrator selected by mutual agreement of the
parties, or, if the parties cannot agree, by the American Arbitration
Association as provided in its Commercial Rules. The award of the arbitrator
shall be final and binding upon the parties and may be executed and enforced in
any court having competent jurisdiction.
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AMENDED.
ARTICLE (16)
TRAVEL
The Licensee shall pay business class air travel and reasonable hotel and meal
expenses incurred by Xxxxxxx in connection with this Agreement provided that
Xxxxxxx has obtained the Licensee's prior written agreement to such travel.
ARTICLE (17)
SEVERABILITY
If any provision of this Agreement is declared invalid or unenforceable by any
lawful tribunal, then it shall be adjusted to conform to legal requirements of
that tribunal and that modification shall automatically become a part of this
Agreement. If no adjustment can be made, the provision shall be deleted as
though never included in this Agreement and the remaining provisions of this
Agreement shall remain in full force and effect unless such invalidity or
unenforceability causes substantial deviation from the underlying intent of the
parties expressed in this Agreement, in which case the parties shall replace the
invalid or unenforceable provision with a valid and enforceable provision which
corresponds as far as possible to the spirit and purpose of the invalid or
unenforceable provision.
ARTICLE (18)
WAIVERS
No failure to exercise and no delay in exercising, on the part of either party,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any further exercise thereof, or the exercise of
any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
ARTICLE (19)
COUNTERPARTS
This Agreement may be executed in any number of counterparts (including by
telefacsimile), each of which when executed and delivered shall be an original,
but which counterparts together shall constitute one and the same instrument.
In WITNESS WHEREOF the parties hereto have hereunto set their hands and seals
SIGNED for and on behalf of )
Xxxxx Brothers, Inc. )
signature )
-------------------------------------------
title )
-----------------------------------------------
DATED THIS day of )
who warrants his authority )
to sign this Agreement in )
the presence of: )
------------------------------------
Witness
SIGNED for and on behalf of )
X.X. Xxxxxxx & Assoc Pty Ltd )
signature )
-------------------------------------------
title )
-----------------------------------------------
DATED THIS day of )
who warrants his authority )
to sign this Agreement in )
the presence of: )
------------------------------------
Witness
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT A
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
WHEREAS X.X. Xxxxxxx & Associates Pty. Limited, a company incorporated
under the laws of New South Wales ("Licensor"), has entered into a License
Agreement dated as of July ____, 2000 (the"License Agreement"), with Xxxxx
Brothers, Inc. ("Licensee"), pursuant to which Licensor granted a license to
Licensee to use certain confidential and proprietary information owned by
Licensor relating to the manufacture, processing, packaging, marketing,
promoting and sale of 3-dimensional hollow fried snack food products
(hereinafter "Know-How"); and
WHEREAS, it is necessary for Licensee, in furtherance of Licensee's
business, to disclose such Know-How and related trade secrets to the undersigned
party;
NOW, THEREFORE, the undersigned party acknowledges and agrees as follows:
1. The undersigned party agrees to keep all Know-How and trade secrets
regarding Know-How received from Licensee in strict confidence and
shall not disclose them to any third party and shall not use them for
any purpose other than as authorized by Licensee.
2. Upon request by Licensee, the undersigned party agrees promptly to
return to Licensee all materials received from Licensee that contain
any Know-How and related trade secrets.
3. This agreement imposes no obligation upon the undersigned party with
respect to any Know-How or related trade secrets that (a) were in the
possession of, or were rightfully known by the undersigned party
without an obligation to maintain their confidentiality prior to
receipt from Licensee; (b) are or become generally known to the public
without violation of this agreement; (c) are obtained by the
undersigned party in good faith from a third party having the right to
disclose them without an obligation of confidentiality; (d) are
independently developed by the undersigned party without the
participation of individuals who have had access to the Know-How or
related trade secrets; or (e) are required to be disclosed by court
order.
DATE: By:
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
