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EXHIBIT 99.3
LICENSE AGREEMENT
THIS TRADEMARK LICENSE AGREEMENT (this "Agreement") is effective as of
the 1st day of September, 2000 ("Effective Date"), by and between DEL MONTE
CORPORATION, a New York corporation with a principal place of business at One
Market, San Francisco, California 94105 ("Licensor"), and UNIMARK FOODS, INC., a
Texas corporation with a principal place of business at 124 McMakin Road,
Bartonville, Texas 76226 ("Licensee").
WITNESSETH:
WHEREAS, Licensor, Licensee and Licensee's parent, The UniMark Group,
Inc., entered into an Asset Purchase Agreement, dated as of August 25, 2000 (the
"Purchase Agreement"), pursuant to which Licensor agreed to purchase from
Licensee certain assets as designated in the Purchase Agreement, including the
Licensed Trademarks (as defined below);
WHEREAS, Licensor is the owner of all right, title and interest in and
to the trademarks, applications for registration of trademarks, and trademark
registrations listed on Exhibit A attached hereto and made a part hereof
(collectively, the "Licensed Trademarks"); and
WHEREAS, Licensee desires the right to use the Licensed Trademarks in
(i) Mexico, and (ii) all countries of the world located outside of the Western
Hemisphere (collectively, the "Licensed Territory") on or in connection with the
production, manufacture, sale and distribution of those processed fruit products
described on Exhibit B hereto (the "Products"); and
WHEREAS, Licensor desires to grant Licensee the right to use the
Licensed Trademarks in the Licensed Territory, subject to the terms and
conditions hereinafter set forth; and
WHEREAS, the parties acknowledge the excellent reputation for quality
of goods sold under the Licensed Trademarks, and desire to safeguard, promote
and enhance that reputation by ensuring the future quality of the Products
produced, manufactured, sold, or distributed by Licensee under the Licensed
Trademarks;
NOW, THEREFORE, in consideration of the above premises and of the
mutual covenants set forth below, and other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound, agree as follows:
ARTICLE I
DEFINITIONS
1.1 "Affiliate" shall mean an entity that controls, is controlled by, or is
under common control with, a party to this Agreement. In this context,
"control" shall mean ownership, directly or indirectly, of more than
fifty percent (50%) of the equity interest in an entity.
1.2 "Effective Date" shall mean the date first written above.
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1.3 "License" shall mean the trademark license granted under this Agreement
as described in Section 2.1 hereof.
1.4 "Licensed Goods" shall mean Products sold under the Licensed
Trademarks.
1.5 "Licensed Territory" shall have the meaning set forth in the second
recital to this Agreement.
1.6 "Licensed Trademarks" shall have the meaning set forth in the first
recital to this Agreement.
1.7 "Products" shall mean those products identified in Exhibit B.
1.8 "Western Hemisphere" shall mean North America, Central America, South
America and the Caribbean region, and the respective territories and
protectorates of the countries included therein.
ARTICLE II
GRANTS TO LICENSEE AND RELATED MATTERS
2.1 Subject to the terms and conditions hereinafter set forth in this
Agreement, Licensor hereby grants to Licensee a non-exclusive,
non-transferable, non-sublicensable royalty-free right and license (the
"License") to use the Licensed Trademarks solely on or in connection
with the production, manufacture, sale and distribution, marketing and
promotion of the Products in the Licensed Territory for a period of
five (5) years from the Effective Date. The License granted hereunder
does not include the right to use the Licensed Trademarks on or in
connection with any other products or activity, which rights are
retained by Licensor, and does not include the right to use the
Licensed Trademarks for any purpose outside the Licensed Territory.
2.2 Licensee shall not sell, assign, pledge, grant a security interest in,
sublicense or otherwise transfer or encumber all or any portion of its
rights under this Agreement without the prior written consent of
Licensor.
2.3 Nothing in this Agreement shall prevent Licensee from obtaining outside
the Licensed Territory products, ingredients, labels, packaging or
other materials for sale or distribution WITHIN the Licensed Territory,
provided that Licensee shall use its best efforts to avoid use or
display of the Licensed Trademarks outside of the Licensed Territory as
a result thereof, except to the extent necessary to permit the
manufacture of such products, ingredients, labels and packaging.
Licensee shall inform Licensor of (a) each manufacturer and (b) all
locations from which such items are being obtained if the Licensed
Trademarks are in any manner being used or displayed at such location.
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ARTICLE III
RESTRICTIONS ON LICENSEE
Licensor grants no rights other than those expressly granted herein.
Without limitation of the foregoing, Licensee agrees worldwide that it shall not
directly or indirectly at any time:
3.1 Use any of the Licensed Trademarks for any business, goods or services
other than the Products;
3.2 Use any of Licensor's trade names, trademarks, service marks, domain
names, or trade dress, except the Licensed Trademarks;
3.3 Use any trade name, trademark, service mark, domain names or trade
dress which, in Licensor's opinion, is likely to be confused with or to
dilute, any of the Licensed Trademarks;
3.4 Use the Licensed Trademarks anywhere outside the Licensed Territory
(except as provided in Paragraph 2.3 hereof) or knowingly sell the
Products in connection with the Licensed Trademarks to anyone who
intends or is likely to resell same outside the Licensed Territory;
3.5 Apply to register or own any registration of any of the Licensed
Trademarks.
ARTICLE IV
OWNERSHIP AND MAINTENANCE OF LICENSED TRADEMARKS
4.1 Licensee hereby acknowledges that Licensor is the sole owner of the
Licensed Trademarks and that Licensee's right to use the Licensed
Trademarks is limited and derived solely from this Agreement. Licensee
acknowledges that it shall not acquire any rights of ownership
whatsoever in the Licensed Trademarks as a result of Licensee's use
thereof, and that all goodwill arising from ownership of the Licensed
Trademarks (as distinguished from any enhancement of value to
Licensee's business arising from the license granted hereunder) shall
inure exclusively to the benefit of Licensor. Licensee shall not
challenge or, directly or indirectly, assert any ownership interest or
title in or to the Licensed Trademarks. Licensor expressly retains all
rights to use and to license third parties to use the Licensed
Trademarks (a) in connection with the production, manufacture, sale and
distribution of all goods and services other than the Products within
the Licensed Territory and (b) in connection with the production,
manufacture, sale and distribution of all goods and services (including
the Products) outside of the Licensed Territory.
4.2 Licensee agrees to execute and deliver to Licensor, upon Licensor's
reasonable request, all documents which are reasonably necessary or
desirable to secure or preserve Licensor's rights in or registrations
of the Licensed Trademarks or to record this Agreement, as appropriate,
or to cancel such registrations or recordations, as appropriate.
Licensee further agrees to assist Licensor in registering, maintaining
and recording the
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Licensed Trademarks as reasonably requested by Licensor. Licensee shall
reimburse Licensor, within thirty (30) days of receiving an invoice
therefor, for all reasonable costs (including reasonable attorneys'
fees) incurred by Licensor in registering, maintaining, recording and
protecting the Licensed Trademarks in the Licensed Territory, and
Licensee shall pay its own costs and expenses in this regard.
4.3 Licensee acknowledges and agrees that worldwide, the Licensed
Trademarks and all registrations are valid, and Licensee shall never
directly or indirectly contest their validity.
4.4 Licensee's failure to cease use of the Licensed Trademarks upon
termination of this Agreement unless further permitted herein shall
constitute infringement and dilution of the Licensed Trademarks and
entitle Licensor, without limitation, to equitable relief by way of
temporary restraining order and/or preliminary or permanent injunction,
in addition to all other remedies available under applicable law.
ARTICLE V
METHOD OF USE OF THE LICENSED TRADEMARKS
5.1 The parties shall refrain from using the Licensed Trademarks in any way
which (a) reduces the value or depreciates the goodwill of the Licensed
Trademarks, or (b) wrongfully causes injury to the other's business.
5.2 Licensee may use the Licensed Trademarks in such form and manner and
with such trade dress as used in the Licensed Territory during the two
(2) year period prior to the Effective Date. Licensee shall submit to
Licensor for Licensor's prior approval any (i) proposed material change
in the form or substance of the display of a Licensed Trademark or
Product trade dress, (ii) any proposed material change in the recipe or
formulation of a Licensed Good, and (iii) any new product (i.e., goods
which have not been previously marketed by Licensee but which otherwise
meet the definition of Products under this Agreement) to be marketed
under the Licensed Trademarks. Such submission shall be made prior to
the commercial introduction of any such change or new product. Licensor
may approve or reject any such proposed material change or new product
in its sole discretion; provided, however, that Licensor's approval of
the foregoing shall be deemed granted unless Licensor notifies Licensee
of its rejection within thirty (30) days of receipt of Licensee's
submission. Licensee shall not use the Licensed Trademarks in any form
or manner of display or trade dress which does not meet the
requirements of this Article V or which has not been approved by
Licensor.
5.3 Licensee shall, at its own expense, apply such trademark notices or
other markings as may be necessary or appropriate under the laws or
regulations of the Licensed Territory or as Licensor may reasonably
request in connection with the use of each and every one of the
Licensed Trademarks. Without limiting the generality of the foregoing,
Licensee shall include on all packages, cartons and containers in which
the Products are marketed and on all labels and advertising and
promotional material, the name and address of Licensee as manufacturer
or distributor of the Products and the phrase "[Trademark] is
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the registered trademark of Del Monte Corporation and used under
license," or the equivalent as approved in advance by Licensor. In
addition, Licensee shall place the symbol "(R)" or "TM" (or the local
equivalent), as appropriate, immediately adjacent to each use of a
Licensed Trademark, or as otherwise approved by Licensor.
5.4 Licensee shall not use any Licensed Trademark as part of a trade name
or corporate name. Licensee shall not combine as a unitary or composite
mark any other trademark with a Licensed Trademark, but may use its
trade or corporate name on the Products to designate that Licensee is
the manufacturer or distributor of such Products.
5.5 All activities of Licensee conducted in the Licensed Territory in
connection with the Licensed Goods shall be conducted in accordance
with all applicable laws, rules and regulations.
ARTICLE VI
QUALITY CONTROL AND OTHER CONDITIONS
6.1 Licensee acknowledges the importance to Licensor and to its reputation
and goodwill, and to the public, of maintaining high, uniform standards
of quality in the Products produced, manufactured, distributed and sold
under the Licensed Trademarks. All Products sold or distributed under
the Licensed Trademarks shall meet the quality standards and
specifications, including labeling standards and specifications, used
by Licensor as of the Effective Date and as may be modified by Licensor
from time to time. Where no such standards and specifications exist,
the Products must meet a level of quality comparable to the quality
standards generally accepted for other leading brands of the same
product in the same markets from time to time.
6.2 Licensee shall submit to Licensor annually for its inspection, testing,
and quality evaluation, samples of all Licensed Goods and packaging as
may be requested by Licensor, together with samples of all advertising,
promotional materials and sales materials bearing the Licensed
Trademarks. All such samples shall be submitted free of cost to
Licensor. Once per year, or at other times if Licensor reasonably
believes or determines that any such Licensed Goods do not meet the
required standards of quality as described herein, Licensor or its
representatives shall, upon reasonable notice, have access to the
premises wherein such Licensed Goods are produced, manufactured or held
for sale at such time as to not unduly interfere with the operations of
Licensee. All Licensor expenses of conducting such inspections shall be
borne by Licensor. If any inspection of any premise reveals that
Licensee has failed to comply with the quality standards set forth
herein, Licensor shall be entitled to re-inspect (at Licensee's cost)
such premise upon the earlier of Licensor's receipt of notice of cure
by Licensee or the expiration of the applicable cure period after which
Licensor may seek an injunction pursuant to Paragraph 6.5. Any such
re-inspection shall not be included in the limit of inspections per
year set forth in the paragraph.
6.3 If Licensor determines that any production facilities, Licensed Goods
or other materials do not meet the required standards of quality as set
forth herein, Licensor shall notify
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Licensee in writing of such defect, providing Licensee with details
regarding the deficiency . Upon receipt of such notice, Licensee shall
cure such deficiency within thirty (30) days, except as provided by
Paragraph 6.4, and shall provide Licensor with evidence of such cure
including samples of the Licensed Good or other material which was the
subject of such cure.
6.4 In the event that any deficiency in quality of any Licensed Good poses
a risk to public health or safety, Licensee shall immediately cure such
deficiency and shall immediately cease manufacturing, selling and
distributing such Product until the deficiency is cured.
6.5 If a Product or other deficiency is not cured to the reasonable
satisfaction of Licensor within the time period set forth herein,
Licensor shall be entitled to terminate this Agreement and the License
provided herein and seek injunctive relief against further sales or use
of such defective Products or material.
6.6 Licensor acknowledges that weather conditions and other factors beyond
the control of Licensee from time to time may affect Licensee's ability
to meet quality standards described herein in all respects. Under those
circumstances, Licensor shall permit normal deviations from its product
specifications for limited periods of time, provided such deviations do
not have a material effect on Product quality and do not have a
demonstrable adverse effect on public health or safety.
6.7 In addition to the quality standards set forth herein, Licensee shall
comply with, and shall have sole responsibility for complying with, all
applicable laws and regulations relating to the production,
manufacture, sale and distribution of the Products.
ARTICLE VII
TERM, TERMINATION, AND CERTAIN REMEDIES
7.1 (a) Unless sooner terminated as provided for herein, this
Agreement and the rights and licenses granted herein shall
have a term of five (5) years from the Effective Date.
(b) Notwithstanding the foregoing, Licensor may terminate this
Agreement upon the occurrence of any of the following: (i) the
breach by Licensee of any material term of this Agreement, in
accordance with the procedures set forth in Section 7.2 below;
(ii) if Licensee determines to cease business, or Licensee
liquidates due to insolvency or other financial distress or is
ordered by a court of competent jurisdiction to liquidate its
business; (iii) if Licensee ceases all bona fide commercial
use of all Licensed Trademarks in the Licensed Territory (or
of any Licensed Trademark in any country of the Licensed
Territory) for a period of three (3) years (or such shorter
period of time as shall be deemed to constitute abandonment of
the trademark); or (iv) pursuant to Section 6.5 of this
Agreement. Where Licensee has ceased all bona fide commercial
use of any Licensed Trademark in one or more countries within
the Territory (but not in all countries of the Territory), the
termination of this Agreement shall be limited to the
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particular Licensed Trademark in those countries in which use
of the Licensed Trademark has ceased.
7.2 Except as otherwise provided in this Agreement, if Licensor believes
that Licensee is in breach of any material term of this Agreement
Licensor shall give written notice of such breach to Licensee. Licensee
shall have twenty (20) days from its receipt of such notice to cure
such breach. If Licensee fails to cure such breach within the twenty
(20) day period, Licensor may terminate this Agreement with written
notice to Licensee.
7.3 Upon termination of this Agreement in its entirely or with respect to
any particular Licensed Trademark or country within the Licensed
Territory, Licensee shall (a) immediately cease all use of the Licensed
Trademarks with respect to all Products covered by such termination;
(b) not thereafter, directly or indirectly, identify itself in
marketing or promotional material as a licensee or former licensee of
Licensor with regard to such Products in the Licensed Territory; (c)
immediately destroy, and provide to Licensor evidence of the
destruction of, all packaging and any and all promotional and other
materials bearing the Licensed Trademarks in the Licensed Territory (or
country within the Territory); provided, however, that for six (6)
months immediately following the termination of this Agreement (except
where such termination is based on the failure to comply with the
quality standards described in Article VI hereof), Licensee may sell or
otherwise dispose of any finished Products in its inventory, or which
are produced pursuant to a commitment which Licensee entered into prior
to the termination date, and which comply with the quality standards
described in Article VI.
7.4 Upon termination of this Agreement, the parties shall perform all other
acts which may be necessary or useful to render effective the
termination of the interest of Licensee in the Licensed Trademarks,
including but not limited to the cancellation of any registration or
recordation of this Agreement, or any summary thereof, and Licensee
shall execute any assignment, conveyance, acknowledgement, or other
document that the Licensor may require, relinquishing or conveying to
Licensor any and all rights to or interest in the Licensed Trademarks
that Licensee has, and any goodwill associated therewith. Without
limiting the foregoing, Licensee hereby consents to any application
which Licensor may make to limit or terminate Licensee's status as a
registered user and hereby irrevocably appoints Licensor as its true
and lawful attorney-in-fact for the purpose of executing any such
application or other document, and agrees not to contest, oppose or
dispute such application.
7.5 Licensee may terminate this Agreement at any time by providing Licensor
with thirty (30) days prior written notice.
ARTICLE VIII
PROTECTION OF THE LICENSED TRADEMARKS INCLUDING LITIGATION
8.1 During the term of this Agreement Licensee agrees to reimburse Licensor
for all costs (including attorneys' fees) of maintaining the Licensed
Trademarks in the Licensed Territory . Licensee shall assist Licensor
in obtaining and maintaining such registrations.
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Licensee acknowledges that the ability to maintain a trademark may
depend, in part, on Licensee's use of the Licensed Trademark in a
particular country. Licensor shall not be responsible for the inability
to maintain a Licensed Trademark to the extent such inability is based
on Licensee's failure to use a Licensed Trademark within a country.
8.2 The parties agree to notify each other promptly of any act of
infringement of or unfair competition involving a Licensed Trademark or
any claim by a third party that use of a Licensed Trademark by Licensor
or Licensee infringes the rights of a third party or constitutes unfair
competition.
8.3 Licensor will at all times have the right, in its sole discretion, to
take whatever steps it deems necessary or desirable to protect the
Licensed Trademarks from all harmful or wrongful activities of third
parties. Such steps may include, but are not limited to, the filing and
prosecution of (a) litigation against infringement or unfair
competition by third parties; (b) opposition proceedings against
applications for trademark or service mark registration for marks that
are confusingly similar to any one or more of the Licensed Trademarks;
(c) cancellation proceedings against registration of marks that are
confusingly similar to any one or more of the Licensed Trademarks; and
(d) other appropriate administrative actions. Licensor shall have the
right to include Licensee in such litigation, opposition, cancellation
or other proceedings when necessary or appropriate. Licensee shall
cooperate with Licensor in any such proceeding by providing oral
testimony and documentary and other relevant evidence, and shall
reimburse Licensor for the reasonable costs incurred by Licensor,
including attorneys' fees, in connection with any such proceeding.
Unless otherwise agreed by the parties, any amounts obtained in
connection with any such proceeding (whether awarded by a court,
received in settlement or otherwise) shall be allocated as follows: (i)
first to reimburse Licensor for any costs not yet reimbursed by
Licensee; (ii) then to reimburse Licensee for all costs incurred in
connection with such proceeding; and (iii) then any remaining amounts
shall be paid to Licensor.
8.4 Licensor shall at all times have the right to take whatever steps it
deems necessary or desirable to defend claims that the use of the
Licensed Trademarks in the Licensed Territory infringes the rights of a
third party. Licensee shall reimburse Licensor for all reasonable
costs, including attorneys' fees, incurred in connection with such
defense. Licensee shall have the right to participate in such defense
at its own expense to protect its rights under this Agreement relating
to the Licensed Trademarks. If Licensee is named as a party to such a
claim and Licensor is not so named, Licensee shall defend such action
at its own expense, subject to Licensor's right to elect to participate
in and control such defense. Licensee shall not be authorized to enter
into any agreement, consent order or other resolution of any claim by
or against a third party with respect to the Licensed Trademarks
without Licensor's prior written approval, which approval shall not be
unreasonably withheld or delayed.
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ARTICLE IX
RECORDATION OF AGREEMENT
The parties shall cooperate to satisfy the laws and regulations in the
Licensed Territory with respect to the recordation or validation of this
Agreement, or otherwise to render this Agreement effective and enforceable in
the Licensed Territory, including without limitation the recordal of this
Agreement. Recordation of this Agreement in any territory shall be at the cost
of Licensee.
ARTICLE X
REPRESENTATIONS AND WARRANTIES
10.1 Licensor represents and warrants that, to the best of its knowledge, it
has the right to grant the rights and licenses granted herein, subject
to the terms and conditions stated in this Agreement; provided that
Licensor makes no representation or warranty, express or implied, as to
any matter represented or warranted to it pursuant to the Purchase
Agreement.
10.2 Each party represents and warrants that it has the corporate power and
authority and the legal right to enter into this Agreement and to
perform its obligations hereunder.
10.3 LICENSOR DISCLAIMS ANY AND ALL OTHER WARRANTIES OR REPRESENTATIONS
EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE LICENSED TRADEMARKS
OR CONDITIONS OF AUTHORITY, TITLE, VALIDITY, NON-INFRINGEMENT,
MERCHANTABILITY OR FITNESS FOR ANY PURPOSE.
ARTICLE XI
PRODUCT LIABILITY INSURANCE; INDEMNIFICATION
11.1 Licensee shall procure and maintain product liability insurance with an
insurer acceptable to and agreed upon by Licensor covering liabilities
for its activities pursuant to this Agreement of at least Five Million
United States Dollars (U.S. $5,000,000), with a deductible no greater
than Two Hundred Fifty Thousand United States Dollars (U.S. $250,000)
per occurrence. Such policy shall further provide at least thirty (30)
days prior written notice to Licensor of the cancellation, expiration
or material change in the terms of such policy. Licensee shall cause
Licensor to be named as an additional insured under such policy and
shall provide Licensor with a certificate of insurance evidencing such
coverage.
11.2 Licensee acknowledges and agrees that it shall bear all responsibility
for, and all liabilities arising from and relating to, all Products
manufactured, sold or distributed under the Licensed Trademarks.
Licensee hereby agrees to indemnify, defend and hold Licensor and its
directors, officers and employees harmless from and against any and all
losses, claims, suits, damages, costs and expenses (including
reasonable attorneys' fees) arising from or relating to the use by
Licensee of the Licensed Trademarks, and the manufacture, sale or
distribution of Products, or a breach of any term of this Agreement, in
addition to any other remedies to which Licensor may be entitled at law
or equity.
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Licensor shall in no way assume any such responsibility or liability as
a result of this Agreement or the quality standards or specifications
prescribed hereunder, the purpose of such standards and specifications
being solely to maintain the reputation and goodwill associated with
the Licensed Trademarks.
11.3 THE INDEMNIFICATION PROVIDED IN THIS AGREEMENT SHALL BE APPLICABLE
WHETHER OR NOT NEGLIGENCE OR STRICT LIABILITY OF THE PERSON ENTITLED TO
INDEMNIFICATION HEREUNDER IS ALLEGED OR PROVEN.
ARTICLE XII
MISCELLANEOUS
12.1 Except as otherwise may be expressly provided in this Agreement,
Licensee shall not be construed to be and shall not represent itself as
an agent, representative, Affiliate, partner or co-venturer of
Licensor.
12.2 Every notice provided for in this Agreement to be given by one party to
another party shall be in writing and shall be deemed given on the date
received by hand-delivery, receipt confirmed facsimile transmission,
overnight courier, or registered mail, postage prepaid, to the address
below or such other address as may hereafter be designated by a party
in writing:
To LICENSOR: Del Monte Corporation
One Market
San Francisco, California 94105 U.S.A.
Facsimile No.: (415) 247-3263
Attention: General Counsel
To LICENSEE:
--------------------------------------
--------------------------------------
--------------------------------------
Facsimile No.:
------------------------
Attention:
----------------------------
12.3 Failure of either party to insist upon strict performance of the terms,
conditions, and provisions of this Agreement shall not be deemed a
waiver of such terms, conditions, or provisions or a waiver of future
compliance with them. No waiver of any terms, conditions, or provisions
shall be deemed to have been made unless expressed in writing and
signed by the waiving party.
12.4 (a) This Agreement shall in all respects be governed by, construed
and enforced in accordance with the laws of the State of Texas
without reference to the conflict of laws principles thereof
that would apply any other law.
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(b) Each of the parties irrevocably and unconditionally submits,
for itself and its property, to the exclusive jurisdiction of
the United States District Court for the Northern District of
Texas, Dallas Division, or any State court sitting in the
County of Dallas, State of Texas, and any appellate court
therefrom, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties irrevocably and
unconditionally agrees, to the fullest extent permitted by
law, that all claims in respect of any such action or
proceeding may be heard and determined in any such court. Each
of the parties hereto agrees that a final judgment in any such
proceeding shall be conclusive and may be enforced in any
other jurisdiction by suit on the judgment or in any other
manner provided by law.
(c) Each of the parties hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out
of or relating to this Agreement in the United States District
Court for the Northern District of Texas, Dallas Division, or
any State court sitting in the County of Dallas, State of
Texas. Each of the parties hereto hereby irrevocably waives,
to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each of the parties hereby irrevocably consents to service of
process by registered or certified mail to the address
provided for notices in Section 12.2. Nothing in this
Agreement shall affect the right of any party to this
Agreement to serve process in any other manner permitted by
law.
12.5 This Agreement together with the Purchase Agreement constitutes the
entire understanding between the parties with respect to its subject
matter, superseding and terminating all previous agreements between
them relating to the same subject matter, whether written, oral, or
implied, and may not be changed or modified except by written
agreement, signed by a duly authorized representative of the party to
be bound.
12.6 If any term, provision, covenant, or restriction of this Agreement is
held by a court of competent jurisdiction or other adjudicative body to
be invalid, void, or unenforceable, the remainder of the terms,
provisions, covenants, and restrictions shall remain in full force and
effect and shall in no way be affected, impaired, or invalidated. It is
hereby stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions, covenants,
and restrictions without including the invalid, void, or unenforceable
term, provision, covenant, or restriction.
12.7 Any delays in or failure by either party in performance of its
obligations under this Agreement shall be excused to the extent caused
by occurrences beyond such party's reasonable control, including, but
not limited to, acts of God, strikes or other labor disturbances, war,
whether declared or not, sabotage, and other causes, whether similar or
dissimilar to those specified.
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12.8 Any delay or non-performance by one party excused under the provisions
of Paragraph 12.7 of this Agreement shall be deemed grounds for
termination by the other party, if it were grounds for termination but
for Paragraph 12.7, and if continued for three (3) years or more, or
such shorter period as could be deemed an abandonment of any Licensed
Trademark in a particular country in the Licensed Territory.
12.9 This Agreement may not be assigned by Licensee without the prior
written consent of Licensor, which consent may be withheld in
Licensor's sole discretion. Licensee shall have no right to grant
sublicenses under this Agreement. Any assignment or transfer in
violation of this Section shall be void and of no effect. Any assignee
or transferee of this Agreement shall be bound by the terms and
conditions contained herein.
12.10 Nothing in this Agreement shall prevent Licensor from manufacturing,
selling or distributing goods or services in the Licensed Territory or
licensing others to do so.
12.11 If any action or proceeding is commenced between the parties hereto
with respect to this Agreement, the prevailing party shall be entitled
to all reasonable, direct and substantiated fees and expenses incurred
by it in connection with such action or proceeding, including
reasonable attorneys' fees.
12.12 This License Agreement shall be binding upon and inure to the benefit
of the parties, and to the extent permitted herein, their successors
and assigns.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
LICENSOR: LICENSEE:
DEL MONTE CORPORATION UNIMARK FOODS, INC.
By: By:
--------------------------- ---------------------------
Name: Name:
------------------------- -------------------------
Title: Title:
------------------------- -------------------------
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EXHIBIT A
Licensed Trademarks
<TABLE>
<CAPTION>
Mark Country Registration No.
---- ------- ----------------
<S> <C> <C>
SUNFRESH
FRUITS OF FOUR SEASONS
FRUIT MADE EASY
FLAVOR FRESH
</TABLE>
EXHIBIT B
Products
"PRODUCTS" shall mean processed fruit products sold in glass, plastic or metal
containers for retail sale. "Processed fruit products" are fruit products which
have been subject to thermal processing, chemical preservation or some other
form of treatment to render the product shelf stable.
