EXHIBIT 99.11
EXHIBIT 1.1(m)
TRANSITION TRADEMARK LICENSE AGREEMENT
THIS TRANSITION TRADEMARK LICENSE AGREEMENT ("Agreement") is entered
into on this ___ day of _______________, 2003 (the "Effective Date") between
CONAGRA FOODS, INC. and CONAGRA BRANDS, INC. (collectively, "Licensors") and
PILGRIM'S PRIDE CORPORATION ("Licensee").
WITNESSETH
WHEREAS, Licensors are the owners of all right, title and interest, and
all goodwill, in the respective trademarks identified on Exhibit A attached
hereto ("Licensed Trademarks").
WHEREAS, Licensee has entered into a certain stock purchase agreement
dated __________, 2003 (the "Stock Purchase Agreement") with ConAgra and/or one
or more of its affiliates, pursuant to which Licensee has agreed to purchase
certain assets relating to the Business (as the term "Business" is defined in
the Stock Purchase Agreement).
WHEREAS, Licensee desires to obtain a license from Licensors to use the
Licensed Trademarks in connection with the sale of such processed chicken
products as were being sold by the Business under the Licensed Trademarks as of
the Effective Date (the "Licensed Products"), and Licensors desire to grant
Licensee such a license, pursuant to the terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements hereinafter contained, it is agreed as follows:
1. GRANT OF LICENSE
(a) Licensors hereby grant to Licensee (including its
Affiliates, as the term "Affiliates" is defined in the Stock Purchase
Agreement), and Licensee hereby accepts from Licensors, a non-exclusive,
royalty-free and limited license to use the Licensed Trademarks in connection
with the sale, production, processing, marketing, advertising, and distribution
of the Licensed Products and such related activities as were being conducted by
the Business under the Licensed Trademarks as of the Effective Date, pursuant to
the terms and conditions of this Agreement (the "License").
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(b) Licensee agrees that the geographic scope of the License
is expressly limited to the United States, including all of the states,
districts, territories and possessions of the United States.
(c) The parties agree that the License includes, but is not
limited to, the right to exhaust Licensee's inventory of all product packaging,
promotional materials, letterhead, purchase orders, invoices and other printed
materials ("Materials") bearing the BUTTERBALL and COUNTRY SKILLET trademarks,
and the right to produce and use replacement Materials bearing such trademarks
for the full term of this Agreement; provided, however, that Licensee may not
make any material changes in any Materials bearing such trademarks, without the
express written consent of ConAgra Brands, Inc. which consent may be withheld in
the sole discretion of ConAgra Brands, Inc.
(d) The parties agree that the License includes the right to
exhaust Licensee's inventory of all Materials bearing the ConAgra Derivative
Trademarks (as defined in Exhibit A attached hereto). Licensee will use
commercially reasonable efforts to phase out its use of the ConAgra Derivative
Trademarks as inventories of Materials are exhausted; provided, however, that
Licensee may produce and use replacement Materials bearing the ConAgra
Derivative Trademarks, during the term of this Agreement, in circumstances where
the removal of such trademarks would result in undue financial burden or
production delays (taking into account circumstances such as the cost and time
for creating and producing Materials bearing a different trademarks or
phase-outs of specific Licensed Products) as determined in Licensee's sole
discretion.
(e) Licensee agrees that the License expressly excludes the
right to grant any third party any sublicense to use the Licensed Trademarks.
(f) Licensee agrees that it may not make any material
alteration in the specifications or formulations for the Licensed Products
without the express written consent of Licensors which consent may be withheld
in the sole discretion of Licensors.
(g) Licensee agrees that all rights not expressly granted by
Licensors to Licensee hereunder are expressly reserved by Licensors. Without
limiting the generality of the foregoing, Licensee agrees that the foregoing
License is granted to Licensee for the sole purposes set forth under this
Agreement and Licensee may not use the Licensed Trademarks for any other purpose
whatsoever.
2. OWNERSHIP AND PROTECTION OF LICENSED TRADEMARKS
(a) Licensee agrees that Licensors are the owners of all
right, title and interest in the Licensed Trademarks, including all goodwill
associated therewith, subject only to the specific rights granted to Licensee
pursuant to this Agreement. All goodwill arising from Licensee's use of the
Licensed Trademarks will inure solely to the benefit of Licensors.
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(b) Licensee agrees that it shall only use the Licensed
Trademarks as word marks, or as design marks in the logo style and trade dress
used in connection with the Business as of the Effective Date. Licensee may not
create any new type or design of any Materials bearing the Licensed Trademark
without the express written consent of Licensors which may be withheld in the
sole discretion of Licensors.
(c) Licensee shall promptly notify Licensors in writing of any
known infringements, imitations, or unauthorized uses of the Licensed Trademarks
by third parties. Licensors shall have the sole right and discretion to
institute actions against third parties for infringement of the Licensed
Trademarks. Licensors shall have the sole right to control any such action
instituted by it, including employment of counsel selected by Licensors.
Licensee shall cooperate with Licensors, at Licensors' expense, in connection
with any such action instituted by Licensors.
3. INSPECTIONS
Licensee acknowledges and agrees that Licensors shall have reasonable
access to all facilities, at its cost and during the facilities' normal business
hours, in which any of the Licensed Products are produced, packaged, stored or
otherwise handled, for the purpose of confirming Licensee's compliance with the
terms and conditions of this Agreement without interfering with the business
operations of the facilities. Unless Licensors demonstrate a reasonable basis
for believing that Licensee has violated the terms and conditions of this
Agreement, Licensors shall not seek access to such facilities more than once
during the term of this Agreement.
4. INSURANCE
(a) Licensee agrees to maintain the following insurance during
the term of this Agreement:
(i) Commercial general liability insurance, including
products liability insurance, written on an occurrence form, including blanket
contractual liability coverage against claims for bodily injury, affording
minimum single limit protection of two million dollars ($2,000,000) per
occurrence, and five million dollars ($5,000,000) in the aggregate, with respect
to personal injury or death and property damage;
(ii) Automobile liability insurance against claims
for bodily injury, death and property damage, affording minimum single limit
protection of two million dollars ($2,000,000) with respect to personal injury
or death and property damage occurring or resulting from one occurrence; and
(iii) Employer's liability insurance against claims
for bodily injury and death, affording minimum single limit protection of two
million dollars ($2,000,000) with respect to personal injury or death occurring
or resulting from one occurrence and worker's compensation insurance in
accordance with the statutory requirements of each state in which Licensee's
employees may be found.
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(b) All such insurance is to be purchased from an insurance
company that carries an A.M. Best Rating of "A" or better. Licensee agrees to
provide Licensors upon request with certificates of insurance properly executed
by Licensee's insurance company evidencing such insurance, and to give Licensors
thirty (30) days prior written notice of any cancellation or material alteration
of such insurance coverage.
5. INDEMNIFICATION
(a) Licensee shall indemnify, defend and hold harmless
Licensors and its Affiliates (as such term is defined in the Stock Purchase
Agreement), officers, directors, employees and agents from and against all
claims, damages, liabilities and expenses (including attorneys fees) arising out
of or related to (i) any third party product liability claims arising out of or
related to the sale of Licensed Products by Licensee, except to the extent that
such claims arise out of or relate to processed chicken products acquired by
Licensee under the Stock Purchase Agreement and Licensee could not have
prevented the claim at issue by exercising commercially reasonable precautions,
or (ii) the breach of any representation of covenant of Licensee set forth
herein .
(b) Licensors, in joint and several liability, shall
indemnify, defend and hold harmless Licensee and its Affiliates (as such term is
defined in the Stock Purchase Agreement), officers, directors, employees and
agents from and against all claims, liabilities and expenses (including
attorneys fees) arising out of or related to (i) any infringement of a third
party's trademark or other intellectual property as a result of the use of the
Licensed Trademarks or Materials as set forth in this Agreement, or (ii) the
breach of any representation or covenant of Licensors as set forth herein.
6. REPRESENTATIONS AND COVENANTS OF LICENSEE
Licensee warrants, represents and covenants to Licensors as follows:
(a) Licensee recognizes Licensors' exclusive right, title and
interest in the Licensed Trademarks and agrees that it will not, at any time, do
or cause to be done any act or thing that Licensee knows or should know impairs
or tends to impair any part of Licensors' right, title and interest therein.
Licensee agrees that it will not directly or indirectly, during the term of this
Agreement or thereafter, attack or contest Licensors' exclusive right, title and
interest in the Licensed Trademarks.
(b) Licensee will not seek to register the Licensed Trademarks
or any other trademark, service xxxx, corporate name, trade name, domain name or
other designation that incorporates the Licensed Trademarks, in any jurisdiction
without the express written consent of Licensors which may be withheld in the
sole discretion of Licensors.
(c) Licensee will take no action that Licensee knows or should
know would damage the goodwill and reputation associated with the Licensed
Trademarks.
(d) Licensee's use of the Licensed Trademarks and its sale of
the Licensed Products will comply with all applicable laws and regulations,
including but not limited to all
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applicable laws and regulations relating to the sale, production, processing,
marketing, advertising and/or distribution of adulterated or misbranded
products.
7. REPRESENTATIONS AND COVENANTS OF LICENSORS
Each of the Licensors warrants, represents and covenants to
Licensee as follows:
(a) Licensors' have the right and authority to enter
into and fully and completely perform this Agreement and any
obligations of Licensors hereunder, and know of no facts or
circumstances reasonably indicating that any of the Licensors may not
possess such right and authority.
(b) Licensors own all right, title and interest, and
no third party has any ownership right, title or interest, in the
Licensed Trademarks anywhere in the United States. The Licensed
Trademarks are valid and in effect throughout the United States, and no
ownership rights have been abandoned or lost at law or in equity
anywhere in the United States. Licensors are not aware of any claims,
allegations, actions or litigation brought as a result of a prior use
of or sale of goods under the Licensed Trademarks that have diminished
or may diminish the goodwill or reputation of the Licensed Trademarks.
(c) No third party has asserted, alleged, threatened
or initiated any action, claim, opposition or right in connection with
the Licensed Trademarks or their use that would conflict with
Licensee's use of the Licensed Trademarks, the License granted under
this Agreement or the performance of this Agreement.
8. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
(a) EXCEPT AS EXPRESSLY SET FORTH IN THE STOCK PURCHASE
AGREEMENT OR THIS AGREEMENT, THE LICENSE GRANT SET FORTH IN THIS AGREEMENT IS
MADE ON AN AS IS BASIS WITHOUT ANY WARRANTY OR REPRESENTATION WHATSOEVER.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSORS AND LICENSEE HEREBY
DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, INCLUDING BUT NOT LIMITED TO ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
WORKMANSHIP OR NON-INFRINGEMENT.
(b) EXCEPT AS EXPRESSLY SET FORTH IN THE STOCK PURCHASE
AGREEMENT, NEITHER PARTY SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE
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TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL,
CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES OF ANY KIND
WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY ECONOMIC LOSS, PROPERTY DAMAGE,
PHYSICAL INJURY, LOST PROFITS OR LOST SAVINGS ARISING OUT OF THIS AGREEMENT,
REGARDLESS OF WHETHER ARISING UNDER BREACH OF CONTRACT, WARRANTY, TORT, STRICT
LIABILITY OR ANY OTHER LEGAL THEORY OR CLAIM, EVEN IF THE PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE OR IF SUCH LOSS OR DAMAGE COULD HAVE
BEEN REASONABLY FORESEEN.
9. TERM AND TERMINATION
(a) This Agreement shall commence as of the Effective Date and
shall terminate upon the expiration of one (1) calendar year from the Effective
Date of this Agreement, unless earlier terminated as set forth herein.
(b) Either party may terminate this Agreement upon written
notice to the other party in the event that the other party commits a material
breach of this Agreement and such breaching party fails to cure such breach
within thirty (30) days after receiving written notice of such breach.
(c) Licensors may terminate this Agreement upon written notice
to Licensee in the event that (i) a petition in bankruptcy is filed by or
against Licensee, (ii) Licensee is adjudicated a bankrupt or insolvent, (iii)
Licensee makes an assignment for the benefit of creditors or an arrangement
pursuant to any bankruptcy law, (iv) Licensee discontinues its business, or (v)
a receiver is appointed for Licensee or Licensee's business and such receiver is
not discharged within thirty (30) days.
(d) Upon the termination of this Agreement, all rights of
Licensee to use the Licensed Trademarks shall automatically cease and Licensee
shall immediately cease all use of the Licensed Trademarks.
(e) Notwithstanding anything to the contrary provided herein,
the provisions of Sections 2(a), 5, 8, 9(d), 9(e), 14 and 15 shall survive the
termination of this Agreement.
10. RELATIONSHIP BETWEEN PARTIES
Nothing contained in this Agreement shall be construed to create a
partnership, joint venture or agency relationship between the parties and
neither party shall take any action nor incur any debts, obligations or
liabilities in the name of the other.
11. ASSIGNMENT
(a) Licensee agrees that Licensors may freely assign its
rights and obligations under this Agreement.
(b) Licensee agrees that the rights and obligations of
Licensee under this Agreement are personal to Licensee, and this Agreement may
not be assigned by Licensee, in
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whole or in part, without the express written consent of Licensors which may be
withheld in the reasonable discretion of Licensors, except that Licensee may
assign this Agreement or any rights and obligations hereunder to any Affiliates
without Licensors' consent. Any assignment in violation of this Agreement shall
be void and a material breach of this Agreement.
12. 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.
13. NOTICE
All notices required or permitted to be given by this Agreement shall
be made in accordance with the terms and conditions of the Stock Purchase
Agreement.
14. 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 choice of law provisions set forth in the Stock Purchase
Agreement.
15. CONFIDENTIALITY
(a) The term "Confidential Information" shall mean all
information that is, directly or indirectly, disclosed by either party to the
other party, that should reasonably be understood by the receiving party, due to
legends or other markings, the circumstances of disclosure or the nature of the
information itself, to be proprietary or confidential to the disclosing party,
regardless of whether such information is disclosed in writing, verbally or by
virtue of inspection or observation of any tangible or intangible objects,
facilities, processes or information.
(b) The parties agree that all Confidential Information
disclosed by either party to the other party shall be maintained in secrecy by
the receiving party using the same safeguards as the receiving party uses to
protect its own commercially confidential information of a similar character,
but at least using reasonable care. The parties agree that neither party shall
disclose any Confidential Information received from the other party to any third
party and that both parties shall use Confidential Information received from the
other party for the sole purpose of fulfilling its contractual obligations to
the other party. The parties agree that they will each disclose Confidential
Information received from the other party only to those employees who have a
bona fide need to know such Confidential Information. The parties agree that
they shall each be responsible for ensuring that their respective employees
safeguard all Confidential Information in accordance with the terms and
conditions of this Agreement.
(c) The parties agree that the term "Confidential Information"
does not include any information that is: (i) already known to or otherwise in
the possession of the receiving party at the time it is received from the
disclosing party, (ii) publicly available or otherwise in the public domain, or
(iii) rightfully obtained by the receiving party from any third party without
restriction and without breach of this Agreement by the receiving party.
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16. BINDING EFFECT
This Agreement shall inure to the benefit of and shall bind the
respective parties, their permitted successors and assigns, and their respective
affiliates.
17. 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.
18. NONWAIVER
The failure of either party to require the performance of any term of
this Agreement or the waiver by either party of any breach under this Agreement
shall not prevent subsequent enforcement of such term, nor be deemed a waiver of
any subsequent breach.
19. 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.
20. 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.
21. ENTIRE AGREEMENT
This Agreement and the Stock Purchase Agreement constitutes 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
CONAGRA FOODS, INC. PILGRIM'S PRIDE CORPORATION
By: By:
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Name: Name:
-------------------------------- --------------------------------
Title: Title:
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CONAGRA BRANDS, INC.
By:
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Name:
--------------------------------
Title:
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EXHIBIT A
Licensed Trademarks
Owned by ConAgra Brands, Inc.:
BUTTERBALL (including any logos, trade dress, trademarks and slogans associated
therewith)
COUNTRY SKILLET (including any logos, trade dress, trademarks and slogans
associated therewith)
Owned by ConAgra ("ConAgra Derivative Trademarks"):
ConAgra (including any logos and slogans associated therewith)
ConAgra FOODS (including any logos and slogans associated therewith)
ConAgra POULTRY COMPANY (including any logos and slogans associated therewith)
All other derivations of ConAgra (including any logos and slogans associated
therewith)
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