Exhibit 10.1(c)
TERMINATION OF TRADEMARK AND TECHNOLOGY
LICENSE AND MANUFACTURING AGREEMENT
THIS TERMINATION AGREEMENT entered into this 22nd day of July 1996 between
T.J. CINNAMONS, INC., a Delaware corporation, with an address at 000 Xxxxxxx
Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("Licensor") and HEINZ BAKERY PRODUCTS, INC.,
a Delaware corporation, with an address at 000 Xxx-Xxx Xxxxx, Xxxxxxx, Xxx Xxxx
00000 ("Developer")
RECITALS
A. On June 2, 1992 Signature Foods, Inc., Signature Acquisition Corp. and
Pro Bakers Ltd. entered into a Trademark and Technology License and
Manufacturing Agreement (the "License Agreement");
B. Licensor is the successor in interest to Signature Foods, Inc. and
Signature Acquisition Corp. and Developer is the successor in interest to Pro
Bakers Ltd.;
C. On August 1, 1994 Licensor and Developer entered into an Amendment to
the License Agreement (the foregoing Amendment and the License Agreement are
hereinafter collectively referred to as the "License Agreement");
D. Pursuant to the Amendment Licensor delivered a $770,000 Promissory Note
(the "Licensor Note") to Developer;
E. In accordance with Section 10(a) of the License Agreement Developer has
delivered Product ) sale and accrued Royalty reports (as defined in the License
Agreement to Licensor pursuant to which there is due and owing on the Licensor
Note, as of July 28, 1996, the amount of $801,050.99;
F. Licensor and Developer have mutually agreed to terminate the License
Agreement upon the terms and conditions set forth hereinbelow.
NOW, THEREFORE, the parties hereto agree as follows:
1. INCORPORATION OF RECITALS. The Recitals set forth hereinabove are fully
incorporated herein.
2. TERMINATION OF LICENSE AGREEMENT. The License Agreement shall be deemed
terminated and of no further force and effect simultaneously with the Closing as
described and defined hereinbelow.
3. TERMINATION OF ANCILLARY RIGHTS AND OBLIGATIONS, LICENSOR NOTE, ETC.
Simultaneously with the termination of the License
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Agreement any and all rights, obligations, liens, guarantees, security
agreements and any and all other obligations or instruments arising from the
License Agreement, including but not limited to the Licensor Note, shall be
deemed terminated and of no further force and effect. In furtherance of the
foregoing Developer shall return and deliver to Licensor the original of the
Licensor Note at the Closing.
4. CONSIDERATION FOR TERMINATION. At the Closing Developer shall receive
from Licensor the following consideration for the entry into this Termination
Agreement:
a. $600,000 in cash consideration payable by wire transfer for the
immediate credit of Developer;
b. $100,000 by Licensor assigning, endorsing and delivering to Developer
a promissory note (the "Termination Note") in said amount, the
Termination Note being in the substantive form of EXHIBIT A annexed
hereto.
5. TERMINATION NOTE TERMS. The Termination Note shall bear annual interest
on the outstanding principal amount at the rate equal to the prime rate as
published in the Wall Street Journal on the fifth (5th) day of business prior to
the Closing plus one percent (1%); one half of the principal of the Termination
Note, in the amount of $50,000, plus all accrued interest thereupon, shall be
amortized and paid over a period of twenty four (24) consecutive months after
the Closing;, the balance of the principal of the Termination Note, in the
amount of $50,000, plus all accrued interest thereupon, shall be payable two
years after the Closing.
The Termination Note shall have been made and delivered at the Closing by
TJ Holding Company, Inc. to Licensor and Licensor shall have assigned and
endorsed same to Developer. The obligations of said maker of the Termination
Note shall have been guaranteed at the Closing by Triarc Companies, Inc., in the
substantive form annexed hereto as EXHIBIT B.
6. FINAL ACCOUNTING BY DEVELOPER. In accordance with Section 10(a) of the
License Agreement Developer shall deliver to Licensor, no later than thirty (30)
days after the Closing, a final accounting (the "Final Accounting") of all
Product sales by Developer through the Closing. Delivery of the Final Accounting
to Developer shall be for informational purposes only and shall not be deemed to
revive any aspect of the License Agreement or to in any way limit the generality
of the Releases being delivered pursuant to Section 7 hereinbelow.
7. MUTUAL RELEASE. Simultaneously with the Closing Licensor and Developer
shall be deemed to have mutually released each other, and their respective
affiliates, subsidiaries, directors, officers and employees, from any and all
claims and liabilities in any way arising from or relating to the License
Agreement, all
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in accordance with the respective Releases annexed hereto as EXHIBITS C-1 and
C-2. In the event of any conflict between the terms of the Releases and the
terms of this Termination Agreement, the terms of the Termination Agreement
shall be controlling.
8. INDEMNIFICATION AS TO CO-PACKER. Developer acknowledges that, prior
hereto, it entered into an agreement with ________________________ (the
"Co-Packer") for the manufacturing of the Products 'Under the License Agreement
and Developer acknowledges that Licensor had or has no contractual obligations
or privity with the Co-Packer. In acknowledgement of the foregoing, Developer
hereby agrees to indemnify and hold Licensor harmless from any and all claims by
Co-Packer arising out of Co-Packers activities with Developer or claims by
Co-Packer related to this Termination Agreement.
9. CLOSING. The Closing shall be' defined and shall occur simultaneously
with the closing under a Purchase Agreement executed between Licensor, as
seller, and TJ Holding Company, Inc., as buyer, pursuant to which Purchase
Agreement said buyer is acquiring certain intellectual property, et al. of
Licensor. The Closing shall occur no later than October 31, 1996.
10. REMEDIES. If the Closing shall not have occurred by October 31, 1996
then this Termination Agreement shall be deemed null and void and the License
Agreement shall remain in effect as between the parties hereto.
11. FURTHER ASSURANCES. Developer and Licensor agree to promptly deliver
such further instruments as may be necessary to effectuate the intent of this
Termination Agreement.
12. NOTICES. Any notice, request or other communication ("Notice") given or
made hereunder shall be in writing and either (a) sent by any of the parties
hereto or their respective attorneys, by registered or certified mail, return
receipt requested, postage prepaid together with a facsimile copy, or (b)
delivered in person or by overnight courier or (c) delivered by facsimile
transmission by the parties or their respective counsel. Each Notice mailed
shall be deemed given on the date of receipt and each Notice delivered in
person, by overnight courier or by facsimile transmission shall be deemed given
when delivered.
All Notices shall be sent to the parties respective counsel as follows:
Licensor's Counsel:
Xxxx Xxxxxx, Esq.
000-00 Xxxxx Xxxxxxxx
Xxx Xxxxxx Xxxxx, Xxx Xxxx 00000
Phone 718/000-0000 Fax 718/000-0000
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Developer Counsel:
Xxx Xxxx, Esq.
Senior Attorney
X.X. Xxxxx Company
USX Tower
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Phone 412/000-0000 Fax 412/000-0000
IN WITNESS WHEREOF, the parties hereto have executed this Termination of
Trademark and Technology License and Manufacturing Agreement as of the date
first above given.
HEINZ BAKERY PRODUCTS, INC.
By: ___________________________
Name: ___________________
Title: __________________
T.J. CINNAMONS, INC.
By: ___________________________
Xxxx X. Xxxxxxxx
Vice President
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