Exhibit 10.11
AMENDED AND RESTATED
AGREEMENT
THIS AGREEMENT is executed as of the 21st day of May, 2004, and made
effective as of December 1, 2002, by and between XXXXXX'X FOOD SYSTEMS, INC., a
North Carolina corporation ("HARDEE'S") and PIERRE FOODS, INC., a North Carolina
corporation (the "Company").
HARDEE'S desires to purchase from the Company and the Company desires to
sell to HARDEE'S and any distributors, licensees, franchisees or other persons
designated from time to time by HARDEE'S in writing (collectively, all such
entities other than HARDEE'S shall hereinafter be referred to as "Distributor")
the products (the "Products") described in the "Detailed Product Schedule" (the
"DPS"), in accordance with the terms and conditions hereof.
In consideration of the mutual promises contained herein the parties hereby
agree as follows:
1. PURCHASE AND SALE. HARDEE'S shall purchase from the Company and the
Company shall produce the Products in accordance with its proprietary formula
(the "Formula", attached as Exhibit A to the Amended and Restated Formula
Development Agreement of even date) and with HARDEE'S Finished Product
Specifications attached to this Agreement and sell to HARDEE'S and Distributor
the Products set forth in the DPS, as amended from time to time, in the amounts
set forth in the DPS.
2. DISTRIBUTOR AND RELATED PARTIES.
(a) This Agreement shall not to be construed in any manner to be
binding upon any Distributor of HARDEE'S or upon any affiliate, parent or
subsidiary corporation of HARDEE'S or any individual signing on behalf of
HARDEE'S.
(b) It is expressly agreed and acknowledged that Vendor has entered
into a certain Amended and Restated Agreement of even date effective as of
February 4, 2004, with Xxxx Xxxxxxx Enterprises, Inc. ("CKE"), which agreement,
and any amendments and attachments thereto (the "CKE Agreement), grant to CKE
the right to purchase products similar to the Products in accordance with the
terms and conditions therein. Notwithstanding anything herein to the contrary,
HARDEE'S acknowledges that the rights, privileges, and options of CKE under the
CKE Agreement, and the terms thereof, shall not be deemed a violation of this
Agreement, the Amended and Restated Formula Development Agreement, or any
agreements delivered therewith.
(c) The parties hereto acknowledge that HARDEE'S designation of a
Distributor shall not constitute a representation by HARDEE'S regarding such
Distributor's ability to pay, and that the Company shall look solely to the
entity submitting a purchase order
Confidential information redacted and
Omitted portions are indicated by [***]. filed separately with the Commission.
hereunder for payment. The Company reserves the right to decline to provide
goods and/or services to any Distributor it reasonably determines is not credit
worthy.
3. VOLUME COMMITMENT.
(a) During each Contract Year (as defined below), HARDEE'S and/or its
Distributor, and CKE and/or CKE's Distributor (as defined in CKE Agreement) will
together purchase in the aggregate from the Company and the Company will sell
HARDEE'S and CKE and/or their respective Distributors, *** of the annual
aggregate pound usage of the Products (as defined in this Agreement and in the
CKE Agreement) by HARDEE'S, CKE, and their respective Distributors up to an
aggregate total of *** pounds of total product per Contract Year (the "Volume
Requirements"). Provided, if Company acquires (by buying or building) an
additional plant at a location satisfactory to CKE which provides additional
production capacity which is capable, in the reasonable determination of
HARDEE'S and CKE, of supplying all of their aggregate pound usage of the
Products, then the foregoing limitation of *** pounds shall be disregarded.
Notwithstanding the foregoing, however, the Volume Requirement shall be
pro-rated for any Contract Year consisting of less than 12 months (i.e. if the
final Contract Year consists of 10 months then the Volume Requirement for that
Contract Year shall be 10/12ths of the original Volume Requirement).
It is expressly understood that non-compliance with the Volume Requirement
will be deemed a material breach of this Agreement even if the Purchase
Threshold is met under the Formula Development Agreement executed herewith.
(b) The Volume Requirement of the Products from the Company will be
reasonably allocated over the 12 month period of each Contract Year, (or over
the actual number of calendar months in a Contract Year, if less than 12), to
the extent demand on HARDEE'S Product permits such allocation.
(c) At all times during the term of this Agreement and at no
additional cost to Hardee's, the Company will maintain a safety stock volume of
up to six (6) weeks of Product based on trailing six month period average for
system wide availability in the Company's Ohio storage facilities. Hardee's
reserves the right to arrange all freight carriers and to pick up Product at
Company's manufacturing facility and cold storage warehouses. Addresses for the
storage facilities are as follows:
Interstate Warehouse Pierre Foods, Inc. Cincinnati Freezer
000 Xxxxxxxxxxxx Xxxxx 0000 Xxxxxxxxx Xxxx 0000 X. Xxxxxx Xxxx
Xxxxxxxx, Xxxx 00000 Xxxxxxxxxx, Xxxx 00000 Xxxxxxxxxx, Xxxx 00000
Attn: Xxxx Xxxxx Attn: Xxxx Xxxx Attn: Xxx Xxxxx
000-000-0000 000-000-0000 000-000-0000
(d) The Company acknowledges that the annual anticipated purchase
volumes set forth in the DPS are estimates only, and are subject to adjustment
based on actual historical data, promotional forecasts and other information
furnished to the Company from time
2 Confidential information redacted and
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to time. HARDEE'S will provide the Company with a quarterly forecast at least
thirty (30) days prior to the start of each calendar quarter. Said forecast is
an estimate only.
(e) In the event the Company cannot deliver the Products in the
amounts and on the dates required by HARDEE'S, HARDEE'S may obtain the Products
from alternate suppliers and test alternate products. Such alternative sources
will count towards the Volume Requirement as if purchased from the Company.
(f) The Company acknowledges and agrees that it is a non-exclusive
supplier of the Products to HARDEE'S and Distributor.
4. PRICING AND PAYMENT.
(a) Prices paid by HARDEE'S will be fixed for all pick-ups and
deliveries on a weekly basis, or upon election by HARDEE'S a monthly basis.
Prices are effective at time of shipment date. The fixed costs components of
Total Labor Cost, Total Packaging Costs, Total Overhead Cost, and Profit and
Corporate Overhead Cost in the prices paid by HARDEE'S will be fixed as shown on
Exhibit I through April 30, 2004, and thereafter as set forth on Exhibit I-A for
all purchases through the remainder of the Term.
(b) FORMULA PRICING. Pricing will be calculated in accordance with
Exhibits I, I-A, and II, which are incorporated herein by this reference. The
reference document for raw material pricing will be given to the Company by
HARDEE'S on a weekly basis, pursuant to HARDEE'S agreement with its raw material
supplier designated from time to time by it (currently ***). The raw material
pricing shall be on a delivered basis and the Company agrees to accept the
freight cost set forth in HARDEE'S agreement with such raw material supplier for
all raw materials being delivered by such supplier to the Company. The cost
basis for Domestic Angus 85%, 80%, 50%, 73%, 65% and all Angus chucks shall be
determined pursuant to HARDEE'S Agreement with HARDEE'S raw material supplier.
To the extent HARDEE'S approves imported or other, alternative Angus trim, then
the cost basis for the Angus trim or any applicable Angus trim components shall
be provided by HARDEE'S and/or by an authorized agent of HARDEE'S. If HARDEE'S
chooses to use least cost formulation, pricing will be adjusted for raw
materials and any effect on yields.
(c) PAYMENT TERMS. Unless specifically provided otherwise all
payments required herein to be made by Distributor to the Company shall be net 7
calendar days from the date of invoice.
(d) VENDOR RETURN. The Company is responsible for the return of
rejected products due to non-compliance to specifications from HARDEE'S
restaurants. A handling fee in the amount of 11% of the product cost will be
charged to the Company ($10 minimum, $300 maximum). Any Company approved
disposal costs incurred by HARDEE'S will be billed to the Company at cost.
(e) FREIGHT RATE. All Domestic freight rates as noted in the DPS are
guaranteed through September 30, 2004 and reviewed thereafter, every six (6)
months based
3 Confidential information redacted and
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upon a mutually agreed-upon carrier price quotation for the subsequent six-month
period. Agreement must be made within ten (10) days or end of each six-month
period. If Distributor elects to have product (s) delivered to the requested
facility, freight will be handled FOB Destination and freight will be added to
the price of each product. Should Distributor pick up product(s) at the
Company's facility, product(s) will be purchased FOB Origin as noted on the
DPS's.
(f) BOOKS AND RECORDS.
(i) INVOICE DISCREPANCIES. HARDEE'S will monitor the
Company's invoices and, in the event of continual pricing/invoicing errors,
HARDEE'S may assess an administrative charge on all incorrect invoices
following notice.
(ii) MAINTENANCE OF BOOKS AND RECORDS. During the Term and for
a period of at least two (2) years thereafter, the Company shall maintain
such books and records (collectively, "Records") as are necessary to
substantiate that all invoices and other charges submitted to HARDEE'S for
payment hereunder were valid and proper. All Records shall be maintained in
accordance with generally accepted accounting principles consistently
applied. HARDEE'S and/or its representatives shall have the right at any
time during normal business hours, upon twenty-four (24) hours' notice, to
examine said Records. The provisions of this paragraph shall survive the
expiration or earlier termination of this Agreement.
5. DELIVERY.
(a) The Products purchased hereunder shall be delivered on a timely
basis to the locations designated by HARDEE'S or Distributor in the DPS, as
amended from time to time by HARDEE'S.
(b) In the event the Company cannot fulfill any order within the
delivery dates designated by HARDEE'S or Distributor (as applicable), HARDEE'S
will invoice the Company for and the Company shall pay HARDEE'S for all
additional costs, other than loss of sale costs, associated with the out of
stock or late delivery.
(c) The Company is responsible for reasonable on-time delivery of
orders to HARDEE'S and Distributor. In case of late delivery by the Company or
its carriers in excess of 10% of all deliveries during the preceding quarter,
HARDEE'S will assess a charge of $26/hour for administrative and receiving labor
on all late deliveries.
6. INDIVIDUAL ORDER TERMINATION. HARDEE'S and/or Distributor may at any
time by written notice terminate any individual order in whole or in part if the
Company (i) fails to comply with any of the applicable terms and conditions of
the order; (ii) fails to perform within the time specified (or if no time is
specified, within a reasonable time); (iii) delivers any item that is not as
specified; or (iv) so fails to make progress as to endanger performance of the
order in accordance with its terms. If individual orders are terminated in whole
or in part because of the Company's failure to deliver acceptable products in
accordance with the requirements and terms
4 Confidential information redacted and
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hereof, a mutually agreed upon arrangement would be made by both parties to
ensure continued supply of order at no additional cost to HARDEE'S or
Distributor, as applicable.
7. QUALITY CONTROL/MICRO TESTING. The Company will establish and maintain
a product safety plan ("Safety Program") and a products quality program
("Quality Control Program"). Copies of the Quality Control Program and Safety
Program will be submitted to HARDEE'S Quality Assurance Department for approval.
The Safety Program will include, without limitation, safety controls,
monitoring, corrective action and verification steps to insure that potential
risks are controlled. The Quality Control Program will include the necessary
controls to assure that all products shipped to HARDEE'S Distribution Center or
directly to restaurants, meet the current finished product specifications,
including a hold for release microbiological program to insure that all
microbiological test results meet standards prior to its release. HARDEE'S
agrees to accept the Company's pathogen results for product from the Company
plant's test and hold program. Auditing forms, lab reports and other
verification data will be maintained by the Company and made available to
HARDEE'S upon request. HARDEE'S may monitor the Company's production and/or
inspect the Company's facilities at any reasonable time during the Company's
operating hours. The Company will submit a manifest of code dates with the
corresponding number of cases on all products shipped to HARDEE'S. The Company
shall reimburse HARDEE'S for all reasonable costs associated with the Company's
failure to deliver acceptable product in accordance with the product
specifications. In such event, or pursuant to the Company's request to transfer
production to an unapproved plant, the Company shall reimburse HARDEE'S for all
reasonable costs associated with approving an alternate or secondary plant or
location, unless approval of the alternate or secondary plant or location is
initiated solely by HARDEE'S for the sole purpose of providing a lesser cost.
Any deviation from HARDEE'S approved specifications, including formulation and
packaging changes, will require PRIOR approval from HARDEE'S quality assurance
department. On a monthly basis the Company shall complete and submit to the
HARDEE'S quality assurance department specification summary reports. The Company
shall submit biannually to HARDEE'S quality assurance department an independent
food safety and GMP systems audit from a HARDEE'S approved third party auditor.
Based on HARDEE'S product compliance testing program, the Company's products
will be sampled from approved distribution centers or from individual
restaurants by an independent auditor or by HARDEE'S personnel for required
analysis at supplier's expense. Provided, the cost assessed to the Company with
respect to the two foregoing sentences shall not exceed $30,000 in the aggregate
for such expenses arising out of this Section 7 and Section 7 in the CKE
Agreement. When and if quality problems occur, the Company shall implement a
temperature tracking and recording program for temperature sensitive products
that are delivered with a radius greater than two (2) hours or one hundred (100)
miles from the nearest distribution center.
8. COMPLETE AGREEMENT.
(a) The following attachments (the "Attachments") are incorporated
herein by this reference and are part of this Agreement and a breach of any
terms thereunder shall constitute a breach hereunder: (i) HARDEE'S Distribution
Addendum, (ii) HARDEE'S Items #9561 and #9598 Formula Pricing Exhibits I and
I-A, (iii) *** Angus Formula Pricing for Pierre Foods Exhibit II, (iv) Excess
Safety Stock Storage Cost Exhibit III, (v) Detailed Product
5 Confidential information redacted and
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Schedule (DPS), (vi) HARDEE'S Quality Assurance Department Finished Product
Specification including QA approved label, Mold Plate Data Sheet, Visual
Standards, and HARDEE'S Label/Case Printing Requirements, (vii) HARDEE'S
Microbiological Testing Program, (viii) Amended and Restated Formula Development
Agreement, and (ix) Amended and Restated Confidentiality Agreement. By execution
of this Agreement, the Company and HARDEE'S acknowledge receipt and acceptance
of all Attachments.
(b) This Agreement together with all Attachments hereto, shall
constitute the complete agreement between HARDEE'S and the Company and shall
supersede all prior or contemporaneous proposals, representations,
understandings, and other communications between the parties concerning the
matters addressed in this Agreement and the Attachments, whether oral or
written, unless specifically incorporated herein by reference.
(c) The issuance of information, advice, approvals, or instructions
by a party's technical personnel or other representatives shall be deemed
expressions of personal opinions only and shall be of no force or effect and
shall not affect such party's rights and obligations hereunder, unless the same
is in writing and signed by an authorized officer of such party and delivered to
the other party.
9. TERM AND RENEWAL.
(a) The term of this Agreement shall commence as of December 1, 2002
and unless sooner terminated in accordance with the provisions hereof, shall
expire at 12:00 midnight Eastern time on November 30, 2006 (the "Term").
(b) HARDEE'S and the Company agree that prior to six (6) months
before expiration of the Term, the parties shall negotiate in good faith for a
one (1) year renewal (the "Renewal Term") of this Agreement; provided, in the
event the parties are unable to mutually agree upon the terms and conditions for
the Renewal Term at least one hundred and fifty (150) calendar days prior to the
expiration of this Agreement, this Agreement shall expire as of the original
Term, unless terminated earlier. For the purposes of this Agreement, the term
"Term" shall be deemed to include any Renewal Term.
(c) Every consecutive twelve (12) calendar month period commencing on
February 1 during the Term shall be referred to as a "Contract Year" with the
final period beginning on February 1 and ending on November 30 (whether or not
the Renewal Term is included pursuant to Section 9(b)) also being considered a
Contract Year except that the Volume Requirement shall be adjusted pursuant to
Section 3(a) above.
10. TERMINATION OF AGREEMENT.
(a) Either party may terminate this Agreement at any time, effective
upon the other party's receipt of termination notice, without prejudice to any
other legal rights to which the terminating party may be entitled, upon the
occurrence of any one of the following:
6 Confidential information redacted and
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(i) Upon ten (10) days written notice to the breaching party
describing with detailed specificity a material breach of this Agreement
that is not cured to the non-breaching party's satisfaction within such ten
(10) days period.
(ii) upon a default by a party in the payment of any monetary
obligation payable to the other hereunder and such default continues for
ten (10) days after the payee party gives the payor party written notice of
such non-payment.
(iii) If any of the representations or warranties made by the
other party in this Agreement or any of the Attachments shall prove to be
untrue or inaccurate in any material respect.
(iv) The other party (i) ceases to conduct its operations in
the normal course of business; (ii) is unable to meet its obligations as
they mature; (iii) makes an assignment for the benefit of creditors, or has
proceedings in bankruptcy or insolvency brought against it; or (iv) applies
for or suffers the appointment of a receiver.
(v) A party provides a sixty (60) days written notice to the
other party, in the event HARDEE'S makes significant specification changes
to, or deletes from the menu of its HARDEE'S restaurants all of the items
listed in the DPS. In the event of significant specification changes,
HARDEE'S will allow the Company a reasonable opportunity to become an
approved supplier of the newly defined item(s) upon mutually agreeable
terms. Significant specification changes do not include size, shape, weight
(provided no raw cost increase without mutual pricing adjustment), minor
formulation or minor production procedure changes; provided, such change
does not require the Company to incur material re-tooling or line/machine
set up costs.
(b) If, within a reasonable time after having received a written
notice describing with specificity the failure to comply with product
specifications, the Company continues to fail to comply with product
specifications, HARDEE'S may terminate this Agreement by providing the Company
thirty (30) days written notice. Following such notice of termination, HARDEE'S
may return goods in inventory which fail to comply with product specifications
for full reimbursement, due and payable by the Company within seven (7) days of
the date of such return.
(c) Termination of this Agreement for any reason provided herein
shall not relieve either party from its obligation to perform up to the
effective date of termination or to perform such obligations that may survive
termination.
(d) Promptly following the date of termination, the Company will
return to HARDEE'S and HARDEE'S will purchase at cost any unused packaging and
labeling supplies and raw materials on hand, and all finished products on hand
complying with the specification; provided, the Company shall not be required to
return and HARDEE'S shall not be responsible for purchasing more than sixty (60)
days worth of raw materials (including packaging) and finished products, as
determined by the forecast submitted by HARDEE'S, unless specifically directed
by HARDEE'S in writing to increase inventory levels. The purchased raw materials
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and unused packaging and labeling supplies shall be at the Company's cost and
the purchased finished products shall be at the price set forth herein, all with
payment within seven (7) days after return.
11. MODIFICATION. This Agreement may be modified only by a written
agreement signed by both parties. This Agreement amends, restates and supercedes
that certain Agreement pertaining to the subject matter hereof executed by the
parties on December 1, 2002.
12. INDEMNIFICATION.
(a) The Company shall indemnify, defend and hold harmless HARDEE'S,
and its parent, affiliates, subsidiaries and all of their respective officers,
directors, employees, agents, representatives and stockholders, and any designee
or customer of HARDEE'S from and against any and all losses, claims, actions,
damages, expenses or liabilities, including, without limitation defense costs
and attorneys' fees, resulting from, arising out of or connected with any or all
claims arising from (i) the use of the products supplied by the Company and/or
services provided hereunder, including, but not limited to, any claim for death
or personal injury or damage or loss of property which shall have been caused
directly or indirectly in whole or in part, by any negligence or misconduct on
the part of the Company, its shareholders directors, officers, employees,
contractors or agents, any defect in the materials or workmanship used to
manufacture the products, or any claim under a theory of strict liability, or
(ii) the breach by the Company of any representation, warranty, covenant or
obligation of the Company hereunder.
(b) HARDEE'S shall indemnify, defend and hold harmless the Company
and its parent, affiliates, subsidiaries and all of their respective officers,
directors, employees, agents, representatives and stockholders from and against
any and all losses, claims, actions, damages, expenses or liabilities,
including, without limitation defense costs and attorneys' fees, resulting from,
arising out of or connected with any or all claims arising directly or
indirectly from the negligence of HARDEE'S, or its employees, agents, other than
the Company, including by reason of improper storage or handling by HARDEE'S
agents, warehousemen, and common carriers of products delivered by the Company
in a non-defective condition. HARDEE'S will indemnify the Company from any loss,
expense or liability resulting from recalling the Company's product without
proven cause and joint discussion with the Company.
(c) In the event any third party asserts any claim with respect to
any matter as to which any guarantee or indemnity in this Agreement (or given
pursuant to this Agreement) relate, the party against whom the claim is asserted
(the "Indemnified Party") shall give prompt notice written to the other party
(the "Indemnifying Party"), and the Indemnifying Party shall have the right at
its election to take over the defense or settlement of the third party claim at
its own expense by giving prompt notice to the Indemnified Party. If the
Indemnifying Party does not give such notice and does not proceed diligently so
to defend the third party claim within 30 days after receipt of the notice of
the third party claim, the Indemnifying Party shall be bound by any defense or
settlement that the Indemnified Party may make to those claims and shall
reimburse the Indemnified Party for its expenses related to the defense or
settlement of the third party claim. Nothing in this Agreement shall be
construed to hold the Company liable for any losses, claims, damages, expenses
or liabilities including, without limitation, defense costs and
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attorneys' fees, to the extent such loss, claim, damage, expense or liability
directly results from or arises out of HARDEE'S or Distributor's misconduct or
negligence.
13. INSURANCE. The Company shall furnish to HARDEE'S a current certificate
of insurance, which shall include a thirty (30) day written notice of
cancellation to HARDEE'S evidencing the Company has automobile, comprehensive
general liability, products liability and workers' compensation insurance or an
equivalent. With the exception of workers' compensation, all policies shall
include HARDEE'S, its parent, affiliates, subsidiaries and franchisees as
additional insureds and shall include a contractual liability endorsement to
cover the Company's indemnification obligations hereunder. Such policies shall
state that coverage as it pertains to HARDEE'S shall be primary regardless of
any other coverage which may be available to HARDEE'S and shall be an occurrence
rather than a claims made basis.
(a) COMPREHENSIVE AUTOMOBILE LIABILITY, INCLUDING OWNED AND NON-OWNED
AUTOS; BODILY INJURY, AND PROPERTY DAMAGE: $3,000,000 per occurrence
(aggregate primary and umbrella coverage).
(b) COMPREHENSIVE GENERAL LIABILITY, WITH BROAD FORM PROPERTY DAMAGE,
COMPLETED OPERATIONS, PERSONAL INJURY, INDEPENDENT CONTRACTORS AND
CONTRACTUAL LIABILITY: $3,000,000 per occurrence (aggregate primary and
umbrella coverage).
(c) WORKERS' COMPENSATION: AT STATUTORY LIMITS WITH EMPLOYERS'
LIABILITY: $1,000,000 per occurrence.
(d) The Company must provide to HARDEE'S the Workers' Compensation
policy number prior to commencing any work for HARDEE'S. It is the
responsibility of the Company to notify HARDEE'S of any changes and/or
renewals to the Workers' Compensation policy number. The Company shall
require all subcontractors to maintain the required insurance. No work
hereunder shall commence until above insurance is obtained, a certificate
is provided to HARDEE'S and HARDEE'S has approved the certificate in
writing.
(e) PRODUCTS LIABILITY INSURANCE: $3,000,000 per occurrence
(aggregate primary and umbrella coverage).
14. ASSIGNMENT. No assignment or subcontract hereof shall be made by
either party without the prior written consent of the other party, and no
delegation of any obligation or of the performance of any obligation by the
Company shall be made without the prior written consent of HARDEE'S. Any
attempted assignment or delegation shall be void and ineffective for all
purposes unless made in conformity with this paragraph. The terms shall inure to
the benefit of, and be binding on, the successors and assigns of the parties.
15. CAPTIONS. Captions and titles of paragraphs contained herein are for
convenience only, and shall not be construed to limit, expand or otherwise
change the meaning of any provision hereof.
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16. FORCE MAJEURE. Either party is excused from performance hereunder if
such non-performance results from any acts of God, war, riots, acts of
governmental authorities, or any other cause outside the reasonable control of
the non-performing party. Both parties shall use their best efforts to terminate
or cause the expiration of any Force Majeure as soon as practical following its
occurrence. If the Company cannot deliver the Products in the amounts and on the
dates required by CKE during such Force Majeure event, then CKE may obtain the
Products from the alternate vendors ("FDA Vendors") set forth in Section 7 of
the Amended and Restated Formula Development Agreement between the parties as of
even date herewith. If such FDA Vendors are unable to deliver the Products in
the amounts and on the dates required by CKE during such Force Majeure event,
then CKE may obtain Products from and Company shall license and work with
alternate suppliers and test alternate products. CKE's purchases from the FDA
Vendors and such alternate sources during the Force Majeure event will count
towards the Volume Requirement as if purchased from the Company.
17. GOVERNING LAW. This contract and all Purchase Orders that may be
issued hereunder shall be construed in accordance with, and governed by, the
laws of the State of Missouri, including the Uniform Commercial Code, without
reference to laws or principles regarding choice of laws. The parties consent to
the exclusive jurisdiction of the state and federal courts of the State of
Missouri for the adjudication of matters arising out of this Agreement; and
neither party will assert FORUM NON CONVENIENS with respect to such venue. This
Agreement, and all Exhibits, are only valid if and when duly signed by
authorized representatives of both parties. No third party is authorized to
amend or waive, on behalf of HARDEE'S, any provision of this Agreement.
18. LAWS AND REGULATIONS. The Company shall comply with all applicable
laws, ordinances, rules and regulations including federal, state and local
authorities and departments relating to or affecting the Company and/or the
manufacture, sale or use of the goods or services to be rendered hereunder,
including without limitation Title VII of the Civil Rights Act, as amended from
time to time, and shall secure and obtain any and all permits, licenses and
consents as may be necessary in connection therewith.
19. PATENT, TRADEMARK AND COPYRIGHT PROTECTION. The Company shall defend
and indemnify HARDEE'S, Distributor and their parents, affiliates and
subsidiaries, and all of their directors, officers and employees and hold them
harmless with respect to all patent, trademark and copyright infringement
liability or expenses arising out of the use or sale of the goods covered
hereunder, or any part(s) thereof, and after notice appear and defend at its own
expense any such suits in law or equity, except such trademarks or copyrights as
may be furnished to the Company by HARDEE'S for use in connection with the
packaging of products pursuant to this Agreement. If HARDEE'S is enjoined from
use of the goods by reason of infringement of any patent, trademark or copyright
furnished by the Company, the Company shall, at HARDEE'S option, either procure
for HARDEE'S the right to continue using the goods, replace said goods with
non-infringing goods or parts thereof, modify the goods so as to be
non-infringing or, if HARDEE'S elects, repurchase the goods at the contract
price or terminate the order without further liability to the Company.
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20. SEVERABILITY AND CONSTRUCTION. Any provision used herein which is held
invalid or unenforceable by any authority of competent jurisdiction shall be
ineffective to the extent of such invalidity or unenforceability without
invalidation or rendering unenforceable the remaining provisions hereof;
provided, however, that if such modification would cause this Agreement to fail
in its essential purpose or purposes, it shall be deemed terminated by mutual
agreement of the parties. If this Agreement is terminated pursuant to this
provision, payment shall be made only to the extent of a party's performance to
and including the date of termination, and any payments which shall have been
made and which are applicable to future time periods shall be refunded pro rata
to the effective date of termination. The language used herein shall be deemed
to be the language chosen by the parties hereto to express their mutual intent,
and no rule of strict construction shall be applied against either party.
21. SUBSTITUTIONS. No substitution of, nor alteration in any goods,
component parts thereof, tooling, processes, or manufacturing sites may be made
without the prior written, or FAX, consent from HARDEE'S.
22. SURVIVAL. All warranties, representations, covenants and obligations
of the parties hereunder shall survive the termination or expiration of this
Agreement.
23. USE OF LOGOS AND MARKS. The Company shall not use, in any manner
whatsoever, any of the logos, trademarks, or service marks owned by HARDEE'S or
associated with HARDEE'S restaurant system without the prior written consent of
HARDEE'S. The Company expressly acknowledges HARDEE'S exclusive right, title and
interest in and to such logos and marks, and agrees not to represent in any
manner that the Company has any ownership in HARDEE'S logos or marks.
24. WARRANTY AND REGULATORY COMPLIANCE. The Company warrants that all
goods to be delivered hereunder will be of merchantable quality, free from any
latent or patent defects, will strictly conform to all of HARDEE'S
specifications or samples in all material respects and will be fit and safe for
their intended use. The Company also warrants that the Company shall be in
compliance with all applicable laws, regulations, rules and ordinances, and
warrants that the goods shall comply with and shall not be misbranded or
adulterated under any and all applicable federal, state and local laws, rules,
ordinances and regulations (collectively "Laws"), including specifically those
Laws governing health and food safety and the production, packaging, storage,
distribution and sale of the goods. The Company also warrants that is has the
full and legal authority to enter into and fully perform this Agreement in
accordance with its terms and that the execution and delivery of this Agreement
has been duly authorized by the Company.
25. EXPENSES. Except as otherwise specifically provided in this Agreement,
each party shall be responsible for any expenses incurred by such party in
carrying out its obligations herein.
26. INDEPENDENT CONTRACTOR. The parties shall be and act as independent
contractors, and under no circumstances shall this Agreement be construed as one
of agency, partnership, joint venture or employment between the parties. Each
party acknowledges and
11 Confidential information redacted and
Omitted portions are indicated by [***]. filed separately with the Commission.
agrees that it neither has or will give the appearance or impression of having
any legal authority to bind or commit the other party in any way.
27. FAILURE TO OBJECT. The failure of either party to object to or to take
affirmative action with respect to any conduct of the other party which is in
violation of the terms hereof shall not be construed as a waiver thereof, nor of
any future breach or subsequent wrongful conduct.
28. NOTICES. All notices, requests and approvals under this Agreement
shall be in writing and shall be deemed to have been properly given if and when
personally delivered or sent certified mail, postage prepaid, return receipt
requested, or twenty-four (24) hours after being sent by standard form of
telecommunications, or thirty-six (36) hours after being sent by Federal Express
or other overnight courier service providing delivery confirmation, to the
address of the party set forth below or at such other address as any of the
parties hereto from time to time may have designated by written notice to the
other party:
To the Company: To HARDEE'S:
Pierre Foods, Inc. Xxxxxx'x Food Systems, Inc.
0000 Xxxxxxxxx Xxxx Xxx X.X. Xxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000 Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx Attention: Vice President, Purchasing
with a copy to: with a copy to:
T. Xxxxxxx Xxxxxx, PLLC Xxxxxx'x Food Systems, Inc.
The Power Plant, Xxxxx 000-X Xxx X.X. Xxxx Xxxxx, Xxxxx 0000
0000 Xxxxxx Xxxxxx Xx. Xxxxx, Xxxxxxxx 00000
Xxxxx Xxxxx, Xxxxx Xxxxxxxx 00000 Attention: General Counsel
29. MISCELLANEOUS.
(a) Each of the individuals executing this Agreement certifies that
he or she is duly authorized to do so.
(b) The rights and remedies set forth herein are intended to be
cumulative, and the exercise of any one right or remedy by either party shall
not preclude or waive its exercise of any other rights or remedies hereunder or
pursuant to law or equity.
(c) Should any party commence legal action to interpret or enforce
the terms of this Agreement, the prevailing party in such action shall be
entitled to recover reasonable attorneys' fees and costs, including those
incurred at the trial and appellate levels and in any bankruptcy,
reorganization, insolvency or other similar proceedings.
12 Confidential information redacted and
Omitted portions are indicated by [***]. filed separately with the Commission.
This Agreement is not to be legally binding until the Company has sent two
(2) signed original copies to HARDEE'S and HARDEE'S has signed and returned its
acceptance to the Company.
PIERRE FOODS, INC. XXXXXX'X FOOD SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------ ------------------------------
Xxxxxx X. Xxxxxx Xxxx Xxxxxx
Senior Vice President - Sales Executive Vice President
13 Confidential information redacted and
Omitted portions are indicated by [***]. filed separately with the Commission.
