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EXHIBIT 10.13
LICENSE AGREEMENT
AGREEMENT made as of this 3rd day of June, 1991, by and between CPC
INTERNATIONAL INC., a Delaware corporation with its principal place of business
at Xxxxxxxxxxxxx Xxxxx, Xxxxxxxxx Xxxxxx, Xxx Xxxxxx 00000 (hereinafter "CPC"),
and Delicious Cookie Company, Inc., an Illinois corporation with its principal
place of business at 0000 Xxxxx Xxxx #000, Xxx Xxxxxxx, Xxxxxxxx 00000
(hereinafter "DCC").
1. Definitions
In this Agreement these words or phrases shall be defined and construed as
follows:
(a) "Trademarks" means and includes only the trademarks listed on
Attachment "A" attached hereto, and the trademarks' respective logo
designs, and the names and logos of, and the box, package and
wrapper artwork (including trade dress) associated with, those
trademarks, all of which are owned by CPC.
(b) "Territory" shall mean and refer to the United States of America,
its territories and possessions and Canada. The parties may in the
future agree to additional countries within the Territory subject to
the terms hereof.
(c) "Product(s)" shall mean Ready To Eat Packaged Cookies containing
Xxxxxx Peanut Butter packaged in cartons bearing the Trademarks.
(d) "Program" shall mean the manufacture, promotion, advertising, sale
and distribution of the Products in the Territory by DCC.
(e) "Net Sales" shall mean total sales by DCC to its distributors and/or
national and international accounts less quantity discounts, if any,
standard 1% cash discount and Trade Deals with no deduction for
uncollectible accounts.
(f) "Peanut Butter" shall mean Xxxxxx Brand Peanut Butter supplied by
CPC for use as a raw material ingredient solely for the manufacture
of the Products, which Peanut Butter is described in the Product
specifications.
(g) "Product Specifications" shall mean and refer to those formula
standards, specifications and instructions set forth on Attachment
"B" hereto, as may be amended from
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time to time. All Product Specifications shall be approved in
writing by CPC prior to their use in the Program.
(h) "Trade Deals" shall mean any reduction in selling price that DCC
shall grant to its distributors or to its trade customers as an
incentive to merchandise and/or promote the product.
2. Grant of Rights
Subject to the terms and conditions hereof, CPC hereby grants to DCC the
following rights:
(a) the exclusive right to produce, introduce, advertise, promote,
market, distribute and sell the Products in the Territory,
manufactured in accordance with the Product Specifications;
(b) the exclusive right to use the Trademarks in relation to the
Products in the Territory, so long as the Products are manufactured
by DCC in accordance with the Product Specifications.
(1) It is understood and agreed to by the parties that although
the Territory is presently limited, it is their intention to
expand the Territory as appropriate. Recognizing that there
may be conditions which do not allow CPC to grant the full
rights hereunder, CPC agrees to use its best efforts to allow
a expansion of the Territory as reasonably requested by DCC,
but shall not be otherwise liable for its inability to do so.
(2) Further in the event that DCC wishes to sell Products outside
of the currently defined Territory it shall use its best
efforts to distribute in these areas first through the Best
Foods Export Unit of CPC and any CPC affiliate in the area to
which such distribution is to be made before undertaking such
distribution through its own channels.
(c) It is understood by the parties that the manufacture of the
Product(s) may be performed by a party designated by DCC and
acceptable to CPC and that therefore in any references in this
agreement to manufacture by DCC may apply to a third party.
Notwithstanding the foregoing, DCC shall remain responsible for the
manufacturing of the Product(s) hereunder.
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3. Quality Control
(a) All Product Specifications shall be approved in writing by CPC prior
to their use in the Products.
(b) DCC shall comply with the methods of testing raw material and
finished Products in accordance with local, state and federal
standards, laws and regulations and in accordance with the Product
Specifications. DCC shall conduct those certain tests on the
Products pursuant to quality standards set forth in the Product
Specifications and which test results DCC shall forward to CPC;
provided, however, DCC shall immediately advise CPC of results which
indicate noncompliance with the Product Specifications, local, state
or federal standards, laws or regulations. CPC shall have the right,
at all reasonable times, to inspect the Products as well as the
method of manufacture of the Products, on the Premises of DCC and,
if applicable, elsewhere; provided however, that (i) CPC shall
provide DCC reasonable prior notice of such inspection; (ii) the
designee of CPC performing the inspection will be accompanied by a
designee of DCC; and (iii) such inspection will be performed at a
time mutually agreeable to the designees of CPC and DCC.
(c) CPC personnel shall attend and supervise the first production of the
Products by DCC to ensure correct manufacturing methodology and
compliance with the Product Specifications.
(d) DCC shall conduct periodic on-premises inspections, but in any event
no less than two (2) inspections every twelve (12) months, of its
own manufacturing operations to ensure that methods of manufacture
and finished Products of DCC are in compliance with the Product
Specifications. Copies of all reports prepared by DCC of each
inspection shall be sent forthwith to CPC.
(e) DCC further agrees to send, upon request, samples of the Products to
CPC for testing and analysis. CPC agrees not to request samples of
Products more often than every three (3) months unless it has a
reasonable basis for concern or it deems more samples necessary to
police the nature of quality of the Products. It is understood by
DCC that if any such sample,or DCC's methods of manufacturing do not
substantially and materially conform to the Product Specifications,
CPC shall promptly communicate the results of the testing and
analysis to DCC. If DCC is not notified of an adverse examination
within fifteen (15) days after
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receipt of the samples by CPC, such samples shall be deemed
satisfactory under this Agreement. IF DCC is notified of an adverse
examination within such 15-day period, DCC shall promptly correct
such defects. Upon the failure of DCC to comply with such
instructions or requirements within thirty (30) days of receipt
thereof,CPC may terminate this Agreement in accordance with the
provisions of Paragraph 15 hereof.
(f) DCC shall refrain from using the Trademarks in relation to any
defective Products, unless such defects are first cured to the
satisfaction of CPC.
(g) DCC acknowledges its obligation to recall at its sole cost and
expense, if so instructed by CPC on a reasonable basis or any
applicable governmental agency or regulatory body, any Products
manufactured by it and present at any level of trade, including but
not limited to warehouse, wholesale or retail levels, should such
Products fail to comply with the Product specifications and not have
been cured with respect to such noncompliance as provided in
Paragraph 3(e) above, or be subject to recall by any applicable
governmental agency or regulatory body. If such recall shall be
solely as a result of CPC's breach of its representations,
warranties, or guarantees hereunder, particularly Paragraph 9(d),
then CPC shall compensate DCC for the cost of such recall.
4. Insurance
DCC shall obtain, at its own expense, occurrence form public liability
insurance including product liability coverage with broad form vendor's
endorsement. Such insurance shall name CPC as an additional insured and
shall be obtained from a recognized insurance company which has qualified
to do business in the State of New Jersey. Such insurance shall provide
the following coverage: (i) personal injury of up to $1,000,000 for each
person and $2,000,000 for each occurrence; (ii) property damage of up to
$2,000,000 for each occurrence; and (iii) $5,000,000 umbrella coverage
against any claims, sits, loss or damage arising out of any defects in the
Products. Within thirty (30) days after the date of this Agreement, and
prior to the distribution or sale of any Product, DCC shall submit to CPC,
as evidence of such coverage, a certificate of insurance naming CPC as a
named insured for such coverage. Any proposed change in such coverage
shall be submitted to CPC for its prior approval. DCC shall keep such
policy in force during the term of this Agreement and for at least two (2)
years thereafter. The provisions of this Paragraph 4 shall not in
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any way limit the indemnification provided by DCC to CPC pursuant to
Paragraph 10(c) hereof.
5. CPC's Representations
CPC represents and warrants to DCC that CPC has all necessary rights,power
and authority to enter into and perform this Agreement and to grant the
rights and licenses granted to DCC herein within the present Territory.
6. Trademarks and Copyrights; Infringement
(a) DCC shall assist CPC, at CPC's sole cost and expense, in securing
the registration of any copyrights, trademarks, service marks or
names, or commercial rights CPC may hold with respect to the
Trademarks or related rights as used on or with respect to the
Products. DCC shall advise CPC promptly of any possible infringement
of, or unfair competition affecting, the Trademarks or other rights
known to DCC; however, CPC shall not be obligated to institute any
suit or take any action on account of any alleged or actual
infringement of any such Trademark nor shall DCC institute any such
suit or action without first obtaining CPC's written consent thereto
which shall not be unreasonably withheld.
(b) DCC shall not use or permit the use of any 3rd party trademarks on
the Products without the prior written consent of CPC which shall
not be unreasonably withheld, and DCC shall not use or permit the
use of the Trademarks on or in connection with any goods other than
the Products. DCC specifically agrees not to manufacture, sell or
distribute, directly or indirectly, any products whose trademark,
trade name or other designation is either identical or confusingly
similar to the Trademarks.
(c) DCC recognizes CPC's exclusive title t the rights in the Trademarks
and shall not at any time do or suffer to be done or fail to do any
act or thing which, directly or indirectly, will in any way impair
CPC's rights in and to the Trademarks. It is understood that DCC
shall not acquire any claim to title to the Trademarks by virtue of
the instant license granted to DCC, through DCC's use of Trademarks,
or otherwise, the intention of the parties being that all use of the
Trademarks by DCC shall at all times inure to the benefit of CPC.
(d) DCC agrees to cooperate with CPC in the prosecution of any trademark
application or related copyright or other
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application that CPC may desire to file. For that purpose, DCC shall
supply CPC upon CPC's request such samples of Products or Packaging
Material, or photographs thereof, and similar material, as may from
time to time be required, in connection with any such application or
registration.
(e) CPC shall have the right at its sole and absolute discretion to
prosecute or defend, at its own expense, all suits involving the
Trademarks and related intellectual property rights and to take any
action that it deems desirable for the protection thereof. At CPC's
expense, DCC shall provide reasonable assistance to CPC in any such
action or claim. Recovery of damages resulting from any such action
shall be solely for the account of CPC. Notwithstanding the
foregoing DCC shall be free to pursue any claim it may have against
third parties and CPC shall provide reasonable assistance to DCC in
any such claim.
(f) DCC agrees that the Trademarks prepared for use on Packaging
Material, advertising and other material shall be works made for
hire, and that all rights in such Trademarks shall belong to CPC.
DCC and its affiliates agree to execute such documents as are
necessary to assure the complete protection of such rights. CPC
agrees that all rights in the Packaging Material, advertising and
other material,other than rights in the Trademarks, shall belong to
DCC, and upon DCC's request, CPC shall take all steps necessary to
assign to DCC all such rights in the Packaging Material, advertising
and other material that may otherwise inure to CPC due to
application of the legends set forth in Paragraphs 7(g) and 7(h)
below on such material, and shall execute such documents as are
necessary to assure the protection of DCC's rights in such material.
(g) As directed by CPC, DCC shall imprint or cause to be imprinted
irremovably and legibly on each advertising, promotional
display,packaging, wrapping, and any other similar material relating
to the Products, wherein the Trademarks or copyrighted work may
appear, appropriate trademark or copyright notices, consisting of:
(1) Either the "TM" designation or the encircled "R" federal
trademark registration symbol; and
(2) The word Copyright or the encircled "C" federal copyright
symbol, followed by the year of first publication of the work,
and such appropriate name of CPC shall direct.
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(h) In addition to and without detracting from the foregoing, a
marketing legend for use in association with the Products which CPC
considers appropriate in the circumstances, that is: "Manufactured
and Distributed under license from CPC International, Inc. Xxxxxx is
a registered trademark of CPC International, Inc." DCC shall provide
to CPC a summary of any consumer inquiries on a monthly basis;
provided, however, that DCC shall immediately communicate to CPC any
inquiries of an urgent nature or involving product quality.
7. Royalties
In consideration of the rights granted to DCC by CPC under this Agreement,
DCC shall pay to CPC a royalty as follows:
(a) For sales which take place between the date of first shipment in
1991 and for one year thereafter, three percent (3%) of Net Sales;
(b) For sales which take place during the second year after the first
shipment date, four percent (4%) of Net Sales;
(c) For sales which take place after two years from the first shipment
date, five percent (5%) of Net Sales;
(d) In the event any sale of the Products is made at a special price to
any of DCC's affiliates or to any other person, firm or corporation
related in any manner to DCC or its officers, directors or
stockholders, the royalty paid on such sales shall be based upon the
price generally charged to the trade by DCC on an arm's length
basis.
8. Minimum Annual Performance Level;
Merchandising and Promotion
(a) DCC and CPC agree to review business developments such that both DCC
and CPC share equitably in the success of the product, recognizing
that the advertising, merchandising and promotion effort for the
Products shall be performed by DCC pursuant to this Agreement. DCC
and CPC agree that, when results have been obtained regarding DCC's
performance level in 1991, and each year thereafter in which this
Agreement is in effect, they shall negotiate in good faith to
determine a reasonable minimum annual performance level pursuant to
the terms of this Agreement. Such reasonable minimum annual
performance levels for 1991, 1992 and 1993 are set forth in
Xxxxxxxxxx "X" xxxxxx.
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(x) Negotiations on the minimum annual performance level, will begin no
later than November 1 of each year, beginning in the year 1991, and
shall be completed within thirty (30) days after the date
negotiations begin, unless extended by mutual agreement of the
parties (such 30-day period, as it may be extended, the "Negotiating
Period").
(c) DCC shall submit to CPC, for prior and prompt approval in the manner
which CPC shall direct, all bags, wrappers, cartons or other
packaging material (the "Packaging Material"), advertising and other
material on which the Trademarks appear or are intended to be used
in relation to the Product, and in this regard, shall advise CPC
with respect to the Packaging Material's compliance with all
applicable federal, state, and local labelling laws or regulations.
DCC shall amend or cause to be amended to the satisfaction of CPC
any such Packaging Material, advertising, and other materials which
are not approved by CPC. CPC agrees to indicate required changes
within ten (10) working days of receipt of materials from DCC;
provided, however, if CPC fails to indicate required changes within
the said ten (10) days, approval shall be deemed granted.
9. Peanut Butter
(a) DCC agrees to purchase the Program's "full requirements" of Peanut
Butter for CPC f.o.b. CPC's plant, as agreed by the parties from
time to time, and to make payment therefor within 30 days after the
date of receipt of invoice by DCC from CPC. In the event DCC makes
such payment within ten (10) days of receipt of invoice, DCC shall
receive a cash discount of two percent (2%). In this regard, DCC
agrees on an annual basis, and, for the first time within 10 days of
execution of this Agreement and on each November 1 thereafter, to
provide CPC with a forecast as to the quantity of Peanut Butter to
be supplied for the subsequent twelve-month period. DCC shall
thereafter supply rolling forecasts quarterly and CPC shall provide
peanut butter based on such forecasts for the subsequent quarter.
CPC agrees, during the term of this Agreement, to supply DCC with
the Program's full requirements of Peanut Butter, and to arrange
delivery of the Peanut Butter to DCC, as agreed by the parties from
time to time, at the times specified and in accordance with the
instructions contained in DCC's written orders, and as agreed to by
CPC upon receipt of such instructions. As used herein "full
requirements" means all Peanut Butter used as a raw material
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ingredient in connection with the production of the Products. DCC
shall purchase Peanut Butter from CPC at the following prices and
from the following locations:
(1) On shipment through December 31, 1991: Not more than $1.04 per
pound of Xxxxxx Peanut Butter, f.o.b. CPC's Little Rock
facility.
(2) After December 31, 1991, at such price as CPC may determine,
and from such location or locations as the parties may agree,
provided:
a. CPC gives DCC notice of any price increase by November
15th of the year preceding the effective date of the
increase; and
b. any such price increase shall take effect the following
January 1 and remain in effect for at least twelve (12)
months from its effective date.
(b) In the event of limited availability of Peanut Butter due to acts of
nature, including but not limited to crop failure, CPC shall use its
best efforts to continue to meet DCC's full requirement. However,
notwithstanding CPC's best efforts, the parties recognize that
allocation of Peanut Butter supplies to DCC may be necessary if it
is not economically feasible for CPC to supply Peanut Butter at the
then current price.
(c) If at the time the Peanut Butter is ready for shipment based on the
written orders placed by DCC and accepted by CPC and shipment is
delayed pursuant to DCC's instructions, and although title and risk
of loss to the Peanut Butter in question and related payment
obligations shall pass to DCC at such time, CPC agrees to store such
Peanut Butter at no cost to DCC for a period of time not to exceed
fourteen (14) days.
(d) Each shipment of the Peanut Butter is hereby guaranteed by CPC, as
of the date of delivery to a carrier for shipment, to be on such
date (i) in compliance with the requirements of the Product
Specifications, (ii) not adulterated or misbranded within the
meaning of the Federal Food, Drug and Cosmetic Act, as from time to
time amended (the "Act"), (iii) not an article which, under the
provisions of Section 404 or 505 of the Act, may not be introduced
into interstate commerce, and (iv) not in violation of the
provisions of the Food Additives Amendment of 1958. This guaranty is
in like terms extended and is applicable to any lawful state
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law or municipal ordinance in which the definitions of adulteration
or misbranding are substantially the same as those in the Act.
10. Indemnification
(a) CPC shall indemnify, defend and hold DCC and its Affiliates harmless
from all claims (including without limitation product liability
claims), liability, losses and expenses, including reasonable
attorneys' fees, and actions arising in any fashion from CPC's
breach of any warranty, guaranty, covenant or representation by CPC
contained in this Agreement.
(b) CPC's obligation to indemnify, defend and hold DCC and its
Affiliates harmless shall be conditioned on CPC's receiving
reasonably prompt notice of any such claim, liability,loss, expense
or action, and receiving sole authority to conduct the defense of
any such claim or action with the understanding, however, that, at
CPC's request, DCC shall assist CPC in such defense at CPC's
expense, and DCC may retain additional counsel at its own expense to
observe or participate in such defense.
(c) DCC shall indemnify, defend and hold CPC and its Affiliates,
subsidiaries, directors and employees harmless from any and all
claims (including without limitation, product liability claims)
actions, liability, losses and expenses including attorney's fees,
arising in any fashion from DCC's breach of any warranty; guaranty,
covenant or representation by DCC in this Agreement.
11. Payments
(a) Royalty payments for the rights granted hereunder as determined by
the parties in accordance with Paragraph 7 shall be paid to CPC
within sixty (60) days after the end of the calendar quarter in
which such royalties are accrued.
(b) It is understood and agreed that DCC does not have the authority to
return, or to make any allowances or set-offs, with respect to any
royalty payment without the prior written approval of CPC.
(c) All expenses and disbursements incurred by DCC in connection with
this Agreement will be borne wholly and completely by DCC. DCC does
not have, nor will it hold itself out as having, any right, power or
authority to create any contract or obligation, either express or
implied, on behalf of, in the name of, or binding upon
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CPC, unless CPC consents thereto in writing. DCC will have the right
to appoint, and will solely be responsible for its own salesmen,
employees, agents, and representatives, who will be at DCC's own
risk, expense and supervision, who will not have any claim against
CPC for compensation or reimbursement, and who will not be
considered agents or employees of CPC.
12. Confidentiality
The terms of that Secrecy Agreement dated August 8, 1990 by the parties
are hereby incorporated by reference in this agreement and the terms
thereof are extended for five (5) years from the termination or expiration
of this Agreement.
13. Reports and Records
(a) DCC shall render to CPC written reports substantially in the form of
Attachment "D" attached hereto within sixty (60) days after the
close of each calendar quarter and for the first time by October 31,
1991, covering earned royalties due on sales made for the prior
quarter. DCC's principal financial officer shall certify such
report(s) as to their correctness, and the report(s) shall be
accompanied by royalties and other payments then due in accordance
with the terms of this Agreement.
(b) DCC will keep at its principal place of business true books of
account for a period of three (3) full calendar years, containing an
accurate record of all date necessary for the determination of the
amounts due and payable to CPC under this Agreement, and DCC shall
permit CPC, through a duly authorized representative of accountant,
at any reasonable time, upon reasonable advance notice, and not
exceeding once in any six (6) consecutive months, to verify DCC's
reports and payments and to make copies of extracts from any
reports, books, files, records and accounts in the possession or
under the control of DCC, relating to the Program, or to the
manufacture, sale or distribution or advertisement of the Product.
CPC shall bear the expense of such inspection unless total
variations or errors exceeding ten thousand dollars ($10,000) are
discovered in the course of any such inspection, whereupon DCC shall
bear such expense.
(c) the royalty reports submitted by DCC pursuant to Paragraph 13(a)
shall be deemed to be conclusively true and correct for each
calendar quarter, unless CPC shall dispute same by notice to DCC
within six (6) months after the end of said quarter with respect to
which
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such statements were submitted; provided, however, the aforesaid six
(6) month limitation shall not apply to any statements which are
false or inaccurate as a result of the deliberate act or omission of
DCC or its agents or employees.
14. Effective Term
The term of the Agreement shall be five (5) years commencing on the date
hereof, unless otherwise terminated in accordance with the terms hereof.
After such five-year period, this Agreement shall renew automatically for
successive one-year periods unless and until terminated by either party
prior to the end of the then term upon 60 days' prior written notice, or
unless otherwise terminated in accordance with the terms hereof.
15. Termination by CPC
CPC may terminate his Agreement upon the occurrence of any of the
following events:
(a) DCC's failure to pay any amount due to CPC within ten (10) business
days after written notice of default has been provided by CPC to
DCC; or
(b) DCC's default in the performance of any other term, condition, or
provision of this Agreement, if such default is not remedied within
thirty (30) days following written notice thereof by CPC.
(c) DCC's failure to reach the reasonable minimum annual performance
level as set forth in Paragraph 8(a). CPC shall take into account in
the case of such failure the circumstances of and reasons for such a
failure in considering whether it shall so terminate this Agreement.
Such termination shall be on thirty (30) days' written notice.
(d) Upon ninety (90) days' written notice delivered by CPC to DCC after
the Negotiating Period, as defined in Paragraph 8(b), has lapsed,
provided that the parties fail to agree on minimum performance
requirements for DCC. Such 90-day notice period shall be deemed to
commence on the date of DCC's receipt of the notice.
Upon such termination:
(1) the obligation of DCC to pay the royalties hereunder shall
immediately be due and payable to CPC;
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(2) all amounts owed CPC for Peanut Butter ordered by DCC shall,
at the discretion of CPC, immediately become due and payable;
and
(3) all rights granted to DCC hereunder shall forthwith revert to
CPC, and DCC shall immediately refrain from use of the
Trademarks, or any reference thereto, direct or indirect.
Such right to termination shall not be exclusive, and the exercise or
non-exercise thereof by CPC shall not preclude the exercise by CPC of any
other right or remedy at law or equity that it may have against DCC.
16. Termination Upon Bankruptcy
If either DCC or CPC:
(a) is insolvent or unable to pay its debts as they become due or is
declared insolvent or bankrupt by a court of competent jurisdiction
or goes into liquidation other than voluntary liquidation for the
purpose of reorganization;
(b) has a receiver or trustee appointed for its property; or
(c) makes an assignment for the benefit of creditors or otherwise ceases
or is compelled to cease business;
the other party may terminate this Agreement forthwith by giving the party
in default a written notice to that effect. Upon such termination, the
provisions of Paragraph 15(1), (2) and (3), if applicable, shall apply.
In the event CPC elects not to terminate this Agreement pursuant to its
rights under Paragraphs 15 and 16, this Agreement and the rights duties
and obligations of the parties hereunder shall remain in full force and
effect.
17. Termination by DCC
Notwithstanding the provisions of Paragraph 14, DCC shall have the right
to terminate this Agreement at any time upon 90 days' written notice to
CPC and in the event DCC elects to so terminate, it shall continue to
remit to CPC the royalty payments due CPC as the same may become due
during the 90-day notice period, which shall be deemed to commence on the
date of CPC's receipt of notice, or thereafter if such payments become due
after the 90-day notice period as expired. Such payments shall be paid by
DCC in accordance with the provisions of Paragraph 13.
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18. Effect of Expiration or Termination
(a) Upon the expiration or termination of this Agreement, the rights
granted herein to DCC shall immediately terminate and DCC shall have
the right to deplete al existing inventories utilizing the
Trademarks for a period not to exceed one hundred twenty (120) days
following such expiration or termination, but in connection with all
such use of the Trademarks, DCC shall fully perform all its
obligations required under this Agreement, including without
limitation its obligations to meet Product specifications and make
royalty payments hereunder, as it had not expired or been
terminated. The period to deplete inventories may be extended upon
agreement of the parties.
(b) Termination of this Agreement for any reason shall not affect those
obligations which have therefore accrued or which, from the context
hereof, are intended to survive termination of this Agreement.
19. Force Majeure
A delay in performance of this Agreement by either party not exceeding
thirty (30) days shall be excused to the extent performance is prevented
by any contingency beyond its reasonable control including, but not
limited to acts of god, fires, floods, explosions, wars, sabotage actions,
unavailability or scarcity of raw materials or ingredients, labor
disputes, work stoppages, strikes, government laws, ordinances, rules and
regulations, whether valid or invalid, and any other similar contingency
beyond its reasonable control. The foregoing provision shall not relieve
either party from using its best efforts to avoid or diligently remove
such circumstances and the excused party shall resume performance with the
utmost dispatch as soon as the circumstances are removed.
20. Notices
Any notice of report required or permitted pursuant to any provision of
this Agreement shall be in writing and effective when sent, unless
otherwise provided, by certified mail, return receipt requested, to the
following addresses or such other addresses as shall be hereafter
notified:
If to CPC:
CPC International Inc.
International Plaza
Xxxxxxxxx Xxxxxx, XX 00000
Attention: Vice-President, Development
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with copies to:
Legal Department
CPC International Inc.
International Plaza
Xxxxxxxxx Xxxxxx, XX 00000
Attention: Trademark Counsel
If to DCC:
Delicious Cookie Company, Inc.
0000 Xxxxx Xxxx, Xxxxx #000
Xxx Xxxxxxx, XX 00000
Attention: President
with copies to:
Mr. Xxxxxx Xxxx
Lapin, Hoff, Slaw & Xxxxxx
000 X. XxXxxxx Xxxxxx, Xxxxx #0000
Xxxxxxx, XX 00000
21. Paragraph Headings
The paragraph headings are for convenience only and shall not affect in
any way the language of the provisions to which they refer.
22. Applicable Law
This Agreement is made in and shall be governed by the laws of the State
of New Jersey.
23. Waivers
Failure of any party hereto to enforce any of the provisions of this
Agreement, or any rights with respect thereto, or failure to exercise any
election provided for herein, shall in no way constitute a waiver of such
provisions, rights, or elections, or in any way affect the validity of
this Agreement. Failure of any party hereto to enforce any of said
provisions, rights, or elections shall not prejudice such party from later
enforcing or exercising some or any other provisions, rights or elections
which it may have under this Agreement.
24. Assignment
DCC may not assign this Agreement in whole or in part, without the prior
written consent of CPC, which consent will not be unreasonably withheld.
Subject to the foregoing, this Agreement shall inure to the benefit of and
shall bind
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each of the parties hereto and their respective successors and assigns.
25. Confidentiality
CPC and DCC agree that the terms of this Agreement shall be kept
confidential, and shall not be disclosed by either party to any third
party without the prior consent of the other party.
26. Amendment of Agreement
No amendment, modification, or addition to this Agreement shall bind any
party unless reduced to writing and duly executed by each of the parties
in the same manner as the execution of this Agreement.
27. Entire Agreement
This Agreement constitutes the entire understanding between the parties
with respect to the subject matter hereof. The parties acknowledge that
they have made no representations or promises except as are set forth
herein.
IN WITNESS WHEREOF, the parties hereon, intending to be bound hereby, have
caused this agreement to be executed by their duly authorized representative as
of the day and year herein above set forth.
CPC INTERNATIONAL INC. (CPC)
Attest:
/s/ illegible /s/ illegible
______________________________________
By:
DELICIOUS COOKIE COMPANY, INC.
(DCC)
Attest:
/s/ illegible /s/ illegible
______________________________________
By:
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17
ATTACHMENT C
MINIMUM PERFORMANCE LEVELS
Delicious Xxxxxx Peanut Butter Cookies
Licensor: CPC International, Inc.
Licensee: Delicious Cookie Co., Inc.
ANNUAL PERFORMANCE LEVELS
Initial Forecast (May 1991)
In thousands 1991E 1992F 1993F
----- ----- -----
No. of cases(1) 250 500 600
Retail sales(2) $7,770 $15,540 $18,650
Net sales(3) $3,750 $7,475 $8,970
Marketing Support $375 $750 $900
% of Net Sales 10% 10% 10%
DCC and CPC shall negotiate in good faith to determine a reasonable minimum
annual performance level pursuant to the terms of this agreement.
Negotiations on the minimum annual performance level will begin no later than
November 1 of each year beginning in 1991, and shall be completed within thirty
(30) days after the date negotiations begin.
Estimates based on:
(1) No. of Cases: 12 14-oz. packages per case
(2) Retail Sales: Avg. $2.59 at retail per 14-oz. package
(@$31.15 per case)
(3) Net Sales: $15.25 per case = DCC's net sales to its
distributors -- slightly higher to its
national and/or international accounts
(Distributors' net sales to Trade is @$21.80
per case.)
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18
ATTACHMENT D
ROYALTIES
Delicious Xxxxxx Peanut Butter Cookies
Licensor: CPC International, Inc.
Licensee: Delicious Cookie Co., Inc.
ROYALTIES FOR CALENDAR QUARTER
(e.g., July 1, 1991 to September 30, 1991)
Gross Sales Net of Trade Deals = ____________________________
Less: Quantity Discounts = ____________________________
Cash Discounts = ____________________________
Net Sales = ____________________________
x Royalty Rate* = ____________________________
* Royalty Rate
3% of Net Sales - For sales which take place between date of first shipment in
1991 and for one year thereafter
4% of Net Sales - For sales which take place during the second year after the
first shipment date
5% of Net Sales - For sales which take place on or after two (2) years from
the first shipment date
Royalty payments are due within sixty (60) days after the close of each calendar
quarter in which royalties are accrued.
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19
December 7, 1992
Xx. Xxxxxx Xxxxxx
Chairman and CEO
Delicious Cookie Company, Inc.
0000 Xxxxx Xxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxx 00000
Re: Amendment of License Agreement between
CPC International Inc. and
Delicious Cookie Company, Inc.
Dear Xx. Xxxxxx:
Reference is made to the June 3, 1991 License Agreement between CPC
International Inc. (hereinafter "CPC") and Delicious Cookie Company, Inc.
(hereinafter "DCC"), pursuant to which DCC was authorized to use the XXXXXX
trademark in connection with the manufacture and sale of peanut butter cookies
(hereinafter the "Agreement").
The Agreement is hereby amended as follows:
(1) CPC hereby authorized DCC to use the XXXXXX trademark in connection
with the manufacture and sale of XXXXXX & XXXXX'X peanut butter and jelly
sandwich cookies.
(2) In consideration of the new rights hereby granted, DCC shall pay CPC
an additional royalty of 2% of Net Sales (as defined in the Agreement) of XXXXXX
& XXXXX'X peanut butter and jelly sandwich cookies.
20
December 7, 1992
Page -2-
All other terms and provisions of the Agreement shall apply to DCC's use
of the XXXXXX trademark in connection with the XXXXXX & XXXXX'X peanut butter
and jelly sandwich cookies, as if those terms and provisions were restated in
their entirety herein.
If this letter accurately reflects our agreement, please sign, date and
return two of the enclosed copies.
Very truly yours,
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Vice President-Business Development
BEST FOODS, A Division of CPC
International Inc.
Read and Agreed to:
Delicious Cookie Company, Inc.
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Xxxxxx Xxxxxx
Title: Chairman and Chief
Executive Officer
Date: 12/11/92
