EXHIBIT 10.11
PATENT LICENSE AGREEMENT
THIS PATENT LICENSE AGREEMENT ("Agreement") is entered into on this
19th day of September, 2002 (the "Effective Date") between SWIFT BRANDS
COMPANY, a Delaware corporation ("Licensor") and CONAGRA FOODS, INC.
("Licensee").
WITNESSETH
WHEREAS, Licensor and Licensee have entered into a certain agreement
("Purchase Agreement"), pursuant to which Licensor has acquired certain business
assets related to the production, distribution, marketing, advertising and sale
of fresh beef, fresh pork and fresh lamb;
WHEREAS, under the terms and conditions of the Purchase Agreement,
Licensor acquired from Licensee, all of Licensee's right, title, and interest to
U.S. Patent No. 6,133,321 (the "Licensed Patent"); and
WHEREAS, in the Purchase Agreement, Licensor promised to license the
Licensed Patent back to Licensee for use in Licensee's poultry operations.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements hereinafter contained, it is agreed as follows:
1. GRANT OF LICENSE
Licensor hereby grants to Licensee (including Licensee's Affiliates, as
the term "Affiliates" is used in the Purchase Agreement), and Licensee hereby
accepts from Licensor, a perpetual, world-wide, royalty-free license to use the
technology described and claimed in Licensed Patent solely with respect to
poultry (the "License"). Use of the technology described and claimed in the
Licensed Patent in connection with any type of animal other than poultry is not
included in the foregoing License, and is reserved by Licensor. The License
shall be exclusive as to Licensee's use of the technology for poultry. The
License does not include the right to sublicense any rights to the Licensed
Patent, and Licensee agrees not to grant any such sublicense.
2. DISCLAIMER OF WARRANTIES
ALL SUBJECT MATTER LICENSED HEREUNDER (INCLUDING, WITHOUT LIMITATION, THE
LICENSED PATENT) IS LICENSED OR OTHERWISE PROVIDED ON AN "AS IS" BASIS. LICENSOR
DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AND HEREBY
DISCLAIMS ALL WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS
FOR A PARTICULAR PURPOSE, ASSOCIATED WITH THE LICENSED SUBJECT MATTER. LICENSOR
DOES NOT ASSUME AND SHALL NOT BE RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF
LICENSEE'S USE OF OR OPERATION UNDER THE LICENSES HEREIN GRANTED. SPECIFICALLY,
LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE TITLE, ENFORCEABILITY,
OR VALIDITY OF THE LICENSED PATENT, AND MAKES NO WARRANTY THAT THE TECHNOLOGY
DESCRIBED AND CLAIMED IN THE LICENSED PATENT DOES NOT INFRINGE THE PATENT RIGHTS
OR OTHER RIGHTS OF A THIRD PARTY.
3. RIGHT TO XXX
Licensor shall promptly notify Licensee if it learn that an entity may
be infringing Licensee's exclusive rights to the Licensed Patent. Licensee shall
promptly notify Licensor if it learns that an entity may be infringing the
Licensed Patent. Initially, Licensor shall have the right to contact the
suspected infringer and, if the situation warrants, to file a lawsuit against
the suspected infringer. If Licensor does file suit against a suspected
infringer, Licensor shall have sole control of the lawsuit, to the exclusion of
Licensee, and shall be entitled to all money and other compensation received as
a result of the lawsuit. Licensee shall cooperate with Licensor, at Licensor's
expense, in the lawsuit. Licensee shall not be responsible for any costs or fees
associated with any lawsuit initiated by Licensor.
If, after having a reasonable amount of time to evaluate the suspected
infringement of the Licensed Patent, Licensor declines to file a lawsuit against
the suspected infringer, Licensee may file such a lawsuit if the suspected
infringer is using the technology described and claimed in the Licensed Patent
with respect to poultry. Before filing such a suit, Licensee shall consult with
Licensor and give notice to Licensor of its intention to initiate litigation
concerning the Licensed Patent. In the event Licensee files a lawsuit against a
suspected infringer, Licensee shall have sole control of the lawsuit, to the
exclusion of Licensor, and shall be entitled to all money and other compensation
received as a result of the lawsuit. Licensor shall, however, be allowed to
participate in the lawsuit and Licensee shall keep Licensor well informed as to
the status of the lawsuit. Licensor shall cooperate with License, at Licensee's
expense, in the lawsuit. Licensor shall not be responsible for any costs or fees
associated with any lawsuits initiated by Licensee.
4. RELATIONSHIP BETWEEN PARTIES
Nothing contained in this Agreement shall be construed to place the
parties in the relationship of legal representatives, partners, joint venturers,
agents or fiduciaries, and no party shall take any action nor incur any debts,
obligations or liabilities in the name of the other.
5. ASSIGNMENT
Licensee agrees that Licensor may freely assign its rights and
obligations under this Agreement.
Licensee agrees that the license granted to Licensee in Section 1 is
non-transferable, except upon the sale of all or substantially all of Licensee's
poultry assets. Licensor agrees that Licensee may assign its rights and
obligations under this Agreement upon the sale of all or substantially all of
Licensee's poultry assets.
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6. AMENDMENTS
This Agreement may not be amended or modified except in a writing
signed by the party against whom enforcement of such change is sought.
7. NOTICE
All notices required or permitted to be given by this Agreement shall
be in writing and sent by registered or certified mail, return receipt
requested, and shall be addressed to the party to whom it is to be served at the
address of such parties stated below. If either party changes his address, a
written notice thereof shall be given to the other party in accordance with this
Section.
If to Licensor: Swift Brands Company
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: President
Fax: (000) 000-0000
Copy to: Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxxx
Fax: (000) 000-0000
Copy to: Xxxxxxx Xxxxxxx
Xxxxxx & Xxxxxx, L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
If to Licensee: ConAgra Foods, Inc.
Xxx XxxXxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attn: Corporate Controller
Telephone: (000) 000-0000
Fax: (000) 000-0000
Copy to: Xxxxx Xxxxx
XxXxxxx, North, Xxxxxx & Kratz, P.C.
0000 Xxx Xxxxxxx Xxxx Xxxxx
000 Xxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
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8. CHOICE OF LAW
This Agreement shall be deemed to have been made and shall be
interpreted, and the rights and liabilities of the parties hereto determined, in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed solely in such State.
9. BINDING EFFECT
This Agreement shall inure to the benefit of and shall bind the
respective parties, their permitted successors and assigns, and their parents,
subsidiaries and Affiliates.
10. SEVERABILITY
If any portion of this Agreement shall be held to be unenforceable or
illegal, such portion of this Agreement shall be deemed cancelled, but such
cancellation shall not affect any of the other terms, conditions or provisions
of this Agreement.
11. NONWAIVER
The failure of either party to require the performance of any term of
this Agreement or the waiver by either arty of any breach under this Agreement
shall not prevent subsequent enforcement of such term, nor be deemed a waiver of
any subsequent breach.
12. HEADINGS
The section headings within this Agreement are for convenience only and
shall not be deemed to affect in any way the language of the provision to which
they refer.
13. LANGUAGE
The language in this Agreement shall in all cases be construed as a
whole, according to its fair meaning, and not strictly for or against any of the
parties.
14. ENTIRE AGREEMENT
This Agreement and the Purchase Agreement constitute the entire
agreement and supersedes any and all other understandings and agreements between
the parties with respect to the subject matter hereof and no representation,
statement or promise not contained herein shall be binding on either party.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
SWIFT BRANDS COMPANY
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
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Title: Vice President
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CONAGRA FOODS, INC.
By: /s/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
------------------------------------
Title: Assistant Corporate Secretary
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