TECHNOLOGY [TRANSFER AND LICENSE] AGREEMENT
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This Technology [TRANSFER AND LICENSE] Agreement (hereinafter
"Agreement") is effective as of ___________ __, 1998, and is by and between
Agribrands International, Inc., a Missouri corporation having its principal
place of business at 9811 South Forty Drive, St. Louis, Missouri 63124 and
Ralston Purina Company, a Missouri corporation having its principal place of
business at Checkerboard Square, St. Louis, Missouri 63164.
WITNESSETH THAT:
WHEREAS, Ralston and Agri have simultaneously with this Agreement
entered into a separate agreement and plan of reorganization ("Reorganization
Agreement" as defined in Section 1.17 below);
WHEREAS, this Agreement is entered into in conjunction with the
Reorganization Plan to achieve the goals of the Reorganization Agreement;
WHEREAS, Ralston is the owner and/or licensee of certain valuable
technical information and know how including, but not limited to,
confidential, proprietary and/or trade secret manufacturing and production
[MARKETING, DISTRIBUTION AND SALES] information relating to [AGRICULTURAL]
animal feeds, [AGRICULTURAL] animal products and various other agricultural
related products;
WHEREAS, Agri desires to license certain confidential, proprietary
and trade secret manufacturing and production [MARKETING, DISTRIBUTION AND
SALES] information relating to [AGRICULTURAL] animal feeds, [AGRICULTURAL]
animal products and various other agricultural related products from Ralston;
NOW, THEREFORE, in consideration of the foregoing recitals, the
mutual covenants, promises, agreements, representations and obligations set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally
bound, the parties hereto agree as follows:
Article 1 - Definitions
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1.1 An AFFILIATE of Ralston or Agri shall mean any person and/or
entity: (a) who directly or indirectly controls, is controlled by, or is under
common control of Agri or Ralston; (b) who owns or controls [FIFTY PERCENT
(50%)] or more of Agri's or Ralston's outstanding voting securities or
percentage interest; (c) in whom Agri or Ralston owns or controls [FIFTY
PERCENT (50%)] or more of the outstanding voting securities or percentage
interest; or (d) who is a director, partner, member, manager, executive
officer or trustee of Agri or Ralston.
1.2 Agri shall mean Agribrands International, Inc., a Missouri
corporation having its principal place of business at 9811 South Forty Drive,
St. Louis, Missouri 63124, [AND ITS AFFILIATES, EXCLUDING RALSTON AND
RALSTON'S AFFILIATES.]
1.3 Agri business shall mean the businesses transferred to Agri by
Ralston under and pursuant to the Reorganization Agreement as of the
Distribution Date as defined in said Reorganization Agreement.
1.4 Agri Products shall mean all products formulated to provide
nourishment to or care of agricultural animals (terrestrial, aquatic, and
aviary) which agricultural animals may include, by way of example, but not
limitation, livestock, rabbits, poultry, horses, llamas, ostriches, fish,
shrimp, shell fish, turtles, snakes, animals raised for fur, laboratory
animals, zoo animals, and wild or game birds (collectively "Agri Animals").
The term Agri Products expressly excludes any and all Pet Products (including,
but not limited to, Pet Products sold for use with zoo animals) [AND ANY AND
ALL OTHER PRODUCTS OTHER THAN AGRI PRODUCTS]. Agri Products shall include,
but not be limited to, the following products and services only for Agri
Animals:
(a) products and services for breeding, feeding, and health
care;
(b) extraction, collection, processing, packaging, and storage
of Agri Products;
(c) pharmaceuticals, antibiotics, wormers, disinfectants ,
pesticides, herbicides,
insecticides, rodenticides, and fungicides;
(d) feeders, embryos, live animals, larvae, aquaculture,
hydroponic and aeration
equipment;
(e) agricultural end-use products (e.g., hams, cheese, eggs);
and
(f) products and services related to the provision of methods,
systems, and techniques for the development, production, application, and
utilization of the Agri Products described in sections (a) - (e) of this
Section 1.4 such as farm and agricultural management services, farm and
agricultural computer programs and software, farm and agricultural financial
services, soil analysis, and non-pet related veterinary services.
1.5 Agri Technical Information and Know-how shall mean any and all
information owned by Ralston, [OR LICENSED FROM THIRD-PARTIES BY RALSTON UNDER
WHICH RALSTON HAS THE RIGHT TO SUB-LICENSE AND/OR ASSIGN SUCH LICENSE RIGHTS
(SUBJECT TO AGRI OBTAINING ANY REQUIRED CONSENT FROM ANY SUCH THIRD-PARTIES),]
including confidential, proprietary and/or trade secret know-how,
manufacturing, research, and other technical information that is being
exclusively used, has been exclusively used, and/or which is being exclusively
developed, by the Agri Business and is not being used and has not been used by
the Ralston business as of the Effective Date. Agri Technical Information and
Know-How shall only include, and be limited to, trade secrets, know-how,
research and other technical information which are directly related to the
development, research, manufacturing [, MARKETING, DISTRIBUTION, SALE] and/or
production of Agri Products.
1.6 Assignment Agreement shall mean the Assignment Agreement having
an effective date of December 2, 1997 by and between Protein Technologies
International, Inc., and Ralston, attached hereto as Schedule A, and
incorporated herein by this reference, as it may have been amended and
modified as of the Effective Date.
1.7 Effective Date shall mean the date set forth in the first
paragraph of this Agreement upon which this Agreement is to be effective.
1.8 Expressly Excluded Technology shall mean any and all
confidential, proprietary and/or trade secret information, formulations,
specifications, technology, know-how, development, research, manufacturing,
production, and other technical information identified on or referred to by
Schedule B attached hereto and incorporated herein by this reference.
1.9 Other Restrictions shall mean any and all restrictions,
prohibitions, non-compete provisions, and the like, contained in Article V of
the Reorganization Agreement.
1.10 Permitted Pet Foods shall mean:
(a) not more than one (1) brand of dry dog food, which shall be
formulated to provide sufficient nutritional properties as are then deemed
adequate to maintain an adult dog under standards promulgated by the
Association of American Feed Control Officials ("AAFCO"), which in no case
shall contain more than 18% protein and 8% fat (both as reflected in the
guaranteed analysis or average analysis), which shall be formulated so that
the top three (3) ingredients of the ration are not animal-, poultry-, or
fish-based protein ingredients, and which shall possess a calculated
metabolizable energy ("CME") of no more than 3500 kilocalories per kilogram
("KCal/Kg");
(b) not more than one (1) brand of dry puppy food, which shall
be formulated to provide sufficient nutritional properties as are then deemed
adequate for the growth of puppies under standards promulgated by AAFCO, which
shall in no case contain more than 22% protein 9% fat (both as reflected in
the guaranteed analysis or average analysis), which shall be formulated so
that the top three (3) ingredients of the ration are not animal-, poultry- or
fish-based protein ingredients, and which shall possess a CME of no more than
3700 KCal/Kg; and
(c) not more than one (1) brand of dry cat food, which shall be
formulated to provide sufficient nutritional properties as are then deemed
adequate to maintain an adult cat under standards promulgated by AAFCO, which
shall in no case contain more than 28% protein and 10% fat (both as reflected
in the guaranteed analysis or average analysis), which shall be formulated so
that the top three ingredients of the ration are not animal-, poultry-, or
fish-based protein ingredients, and which shall possess a CME of no more than
3600 KCal/Kg.
1.11 Pet Products shall mean all types and classifications of
products produced by Ralston as of the Effective Date for the feeding,
nourishment and care of dogs and cats, and cat litter, including, without
limitation, pet and pet related food, pet nutritional products, any food for
dogs or cats other than foods formulated specifically for laboratory dogs or
laboratory cats, bird food (but not wild bird or game bird food), pet
accessories, pet care and/or pet health products, pet and pet-related litter,
rawhides, bedding, vitamins, minerals, flea and tick control products,
shampoos, grooming accessories, leashes, collars, toys, aquarium accessories,
other pet accessories, and pet or pet-related products for purchase or use by
breeders, small animal veterinarians, police, military, guard dog forces, or
Pet Products sold to zoos. The term "Pets" includes, but shall not be limited
to, dogs, cats, and other small pet animals such as birds, guinea pigs, white
mice, and ornamental fish.
[1.12 Principal Competitor shall mean a person which has, or has an
Affiliate which has, ten percent (10%) or more of dollar sales volume [AND/OR
MARKET SHARE] as measured by A.C. Nielsen, Euromonitor, or other generally
recognized data research company (or, in the event such data is not available,
then as reasonably determined by Ralston), in any country in any of the
following product categories: [DOG FOOD, CAT FOOD, PET LITTER, PET SNACKS, OR
ANY OTHER PRODUCT MANUFACTURED] or sold by the Ralston business or one or more
of Ralston's Affiliates. Notwithstanding the foregoing, Principal Competitor
shall also include, but not be limited to, Nestle, Mars, Heinz, Iams,
Colgate-Palmolive and/or Hill's Pet Nutrition, Doanes, Nutro, Dalgety,
Cargill, Royal Canin, Greens, and any of its and/or their Affiliates.]
1.13 Purina Mills Technology Agreement shall mean the Technology
Agreement having an effective date of October 3, 1986 by and between Purina
Mills, Inc. and Ralston, attached hereto as Schedule C, and incorporated
herein by this reference, as it may have been amended and modified as of the
Effective Date.
1.14 "Ralston" shall mean Ralston Purina Company, a Missouri
corporation having its principal place of business at Checkerboard Square, St.
Louis, Missouri 63164, [AND ITS AFFILIATES, EXCLUDING AGRI AND AGRI'S
AFFILIATES.]
1.15 Ralston business shall mean the businesses of Ralston other than
the Agri business.
1.16 Ralston Designed shall mean all information which qualifies as
Proprietary Information hereunder and which relates to the research,
development, design, manufacture, processes, methods, technology, and the
like, created, developed, generated, or otherwise produced by Ralston
(including, but not limited to, Ralston's officers, directors, employees,
agents, representatives, and independent contractors) prior to the Effective
Date.
1.17 Reorganization Agreement shall mean the Agreement and Plan of
Reorganization dated as of ______, 1998, by and among Ralston Purina Company,
Ralston Purina International Holding Company, Inc., and Agribrands
International, Inc.
1.18 Shared Technical Information and Know-How shall mean any and all
information owned by Ralston, [OR LICENSED FROM THIRD PARTIES BY RALSTON UNDER
WHICH RALSTON HAS THE RIGHT TO SUB-LICENSE AND/OR ASSIGN SUCH LICENSE RIGHTS
(SUBJECT TO AGRI OBTAINING ANY REQUIRED CONSENT FROM ANY SUCH THIRD-PARTIES),]
including confidential, proprietary and/or trade secret know-how,
manufacturing, research, and other technical information, that, as of the
Effective Date: (i) has been used by and/or is being used by the Agri
Business for anything other than Pet Products; and which also (ii) has been
used by, is being used by, and/or is in the possession of the Ralston
business. The parties understand and agree that certain Ralston Designed dry
extrusion technology and Ralston Designed pellet milling technology fall
within the scope of Shared Technical Information and Know-How. However, with
respect to the Ralston X4 and Ralston X4X extrusion technology, Agri
acknowledges, understands and agrees that it may only use: (i) the one
Ralston X4X extruder which is in place in Buga, Colombia, as of the Effective
Date, in Buga, Colombia, and nowhere else; and (ii) the two Ralston X4
extruders which are in place in Songtan, Korea, and in Strathroy, Canada, as
of the Effective Date, in Songtan, Korea, and in Strathroy, Canada, and
nowhere else; and that Agri shall have no right to, and shall not, employ or
in any way use any other Ralston X4X and/or X4 extruders and/or Ralston X4X
and/or X4 extruder technology.
1.19 Territory shall mean the entire world excluding the United
States and its territories and possessions, except that the Territory shall
include Puerto Rico.
Article 2 - Grants and Licenses
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2.1 Ralston hereby transfers and assigns to Agri the entire right,
title and interest that it has, if any, in and to the patents identified on
Schedule D attached hereto, to be held and enjoyed by Agri, its successors,
and assigns, as fully and entirely as the same would have been held and
enjoyed by Ralston had this transfer and assignment not been made. Ralston
agrees to reasonably cooperate with Agri, at Agri's sole cost and expense,
including the execution of necessary recordation documents, in recording this
assignment in the appropriate patent offices.
2.2 Subject to Section 2.2(c), Ralston hereby grants to Agri, subject
to the terms, provisions and conditions of this Agreement, the following:
(a) a perpetual, royalty-free, exclusive license to utilize, for
any purpose whatsoever (expressly subject to the Other Restrictions), the Agri
Technical Information and Know-How only in the Territory. Agri shall have the
right to sub-license the Agri Technical Information and Know-How licensed to
it under this Section 2.2(a) only in and for use in the Territory, and nowhere
else, only so long as any such sub-licensees first expressly agree in writing
to be bound by and to comply with the Other Restrictions and the same
confidentiality and use restrictions as Agri has agreed to be bound by and to
comply with under Article 5 below;
(b) a perpetual, royalty-free, non-exclusive license to utilize
the Shared Technical Information and Know-How only in the Territory only to
develop, make, have made, use, and sell any products or services expressly
excluding Pet Products (expressly subject to the Other Restrictions). Agri
shall have the right to sub-license the Shared Technical Information and
Know-How licensed to it under this Section 2.2(b) only in and for use in the
Territory, and nowhere else, for any purpose except the production and sale of
Pet Products; only so long as any such sub-licensees first expressly agree in
writing to be bound by and to comply with the Other Restrictions and the same
confidentiality and use restrictions as Agri has agreed to be bound by and to
comply with under Article 5 below;
(c) The licenses and rights to sub-license granted in Sections
2.2(a) and 2.2(b) shall be subject in all cases to the following: (i) no such
license or right to sub-license shall be granted to the extent it is
inconsistent with or not permitted by the original license or other grant of
rights to RALSTON; (ii) no such license or right to sub-license (or
sub-license by AGRI) shall be granted to the extent consent thereto is
required under the original license or other grant of rights to RALSTON and
such consent has not been received; (iii) no such license or right to
sub-license shall be granted to the extent it is inconsistent with or not
permitted by, and any such license or right to sub-license shall be subject
to: (1) the rights granted to Purina Mills, Inc., under the Purina Mills
Technology Agreement; (2) the rights granted to Protein Technologies
International, Inc., under the Assignment Agreement; and/or (3) the Other
Restrictions under Article V of the Reorganization Agreement.
(d) It is understood, acknowledged and agreed that so long as
Agri and any permitted sub-licensees fully comply with the applicable terms,
conditions and provisions of this Agreement, and any authorized sub-license
agreements, including, but not limited to, the confidentiality and use
restrictions set forth in Article 5 below, Agri shall have the sole discretion
as to whether, to whom, and under what terms and conditions, it will
sub-license the rights granted it under Sections 2.2(a) and (b) herein.
2.3 Agri acknowledges and agrees that it will not grant any
sub-licenses as permitted under Section 2.2 above unless and until any such
proposed sub-licensee agrees in writing to the termination provisions set
forth in Section 9.2 of this Agreement and to the following:
(a) to be bound by and comply with the same confidentiality and
use restrictions as Agri has agreed to be bound by under Article 5 below;
(b) to be bound by and comply with the Other Restrictions;
(c) upon the termination and/or expiration of any sub-license
agreement, cease any and all use of the Agri Technical Information and
Know-How and Shared Technical Information and Know-How which constitutes
Proprietary Information as defined herein and return any and all documents and
things embodying or containing any such information to Agri.
2.4 Agri acknowledges and agrees that it presently has within its
custody, possession and/or control all of the Agri Technical Information and
Know-How and Shared Technical Information and Know-How licensed to it under
this Article 2, and Ralston acknowledges and agrees that Agri shall be
entitled to retain all such information in its possession subject to the
confidentiality and Other Restrictions set forth herein and in the
Reorganization Agreement. However, the parties acknowledge and agree that
Agri and/or the Agri Business shall, prior to the Effective Date, conduct an
audit and identify any and all Ralston Proprietary Information not licensed to
it under this Agreement including, but not limited to, any Expressly Excluded
Technology, that it has within its possession and/or control, and shall within
180 days after the Effective Date : (i) return any and all such documents,
materials, media, or the like, to Ralston; and/or (ii) provide Ralston with a
written certification, signed by an officer of Agri, representing and
warranting that all such documents, materials, media, and the like, embodying
or reflecting any such information has been destroyed. Subsequent to the
Effective Date, in the event Agri and/or Ralston learn that Agri possesses any
Ralston Proprietary Information not licensed to it under this Agreement
including, but not limited to, any Expressly Excluded Technology, Agri shall
immediately return any and all such information, documents and materials to
Ralston.
Article 3 - Reservations & Exclusions
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3.1 Agri understands, acknowledges and agrees that Ralston expressly
reserves, and does not grant to Agri, either expressly or implicitly, any
right, title or interest to utilize, employ, disclose, disseminate,
distribute, make, license, sell, or export any Expressly Excluded Technology.
3.2 Ralston understands, acknowledges and agrees that to the extent
Agri may have or obtain the ability to use Agri Technical Information and Know
How in conjunction with publicly available information or information
rightfully obtained from third-parties, without the use or benefit of any
Ralston Proprietary Information and/or any Expressly Excluded Technology, to
develop, market, distribute and sell Permitted Pet Foods in accordance with
the terms of Article 5 of the Reorganization Agreement, this Agreement shall
not prevent or preclude such conduct.
3.3 Ralston understands, acknowledges and agrees that it shall not
have any right to grant any new licenses to any other persons or entity, on or
after the Effective Date, of any of the Agri Technical Information and
Know-How anywhere for any purpose.
3.4 Ralston understands, acknowledges and agrees that it shall not
have any right to license to any other persons or entity in the Territory, on
and after the Effective Date, any of the Shared Technical Information and
Know-How for the development, use, production, manufacture and distribution
[MARKETING AND SALE] of Agri Products.
3.5 Agri understands, acknowledges and agrees that Ralston has not
made any, and makes no, representations or warranties (and Agri expressly
waives and releases Ralston from any and all warranties), express or implied,
regarding Ralston's and/or Agri's right to make, use, offer for sale, license,
and/or sell any of the rights transferred, granted and/or licensed to Agri
under this Agreement, and/or any goods and/or services employing any of the
rights transferred, granted and/or licensed to Agri under this Agreement,
including, but not limited to, any implied warranties of title, or claims of
superior rights, infringement, or the like, in or to any of the technology or
information transferred or licensed under this Agreement.
3.6 Agri understands, acknowledges and agrees that in no event shall
Ralston be liable to Agri, any permitted sub-licensee under this Agreement,
and/or any other persons or entities, regardless of the form of a cause of
action, whether in contract, tort or under a statute, including, but not
limited to, negligence, strict liability, product liability, patent
infringement, misappropriation of trade secrets, copyright infringement,
unfair competition, or the like, which in any way arises out of and/or is
related to Agri's, any permitted sub-licensee's, and/or any other person's
and/or entity's, manufacture, use, offer for sale, license, and/or sale of any
of the rights transferred, granted and/or licensed to Agri under this
Agreement, and/or any goods and/or services employing any of the rights
transferred, granted and/or licensed to Agri under this Agreement.
3.7 The terms and provisions of Sections 3.5 through 3.7 of this
Article 3 shall survive the termination and/or expiration of this Agreement
for any reason.
Article 4 - Assignment of Technology Agreements
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4.1 (a) Ralston agrees, upon the receipt of a written request by
Agri, to use commercially reasonable efforts, at Agri's sole cost and expense,
to seek to secure any required consent of third-parties for Agri to obtain a
sub-license from Ralston to use any Shared Technical Information and Know-How
(which is licensed by Ralston from a third-party) only for Agri's use,
production, manufacture, distribution, marketing, and sale of Agri Products in
the Territory.
(b) Subject to and upon Ralston's receipt of the written consent
of any such third-parties, as contemplated under Section 4.1(a) above, Agri
hereby agrees to assume, assumes, agrees to be bound by, conform with, and
undertakes to be obligated to perform each and every term, covenant, and
condition contained in any such license agreements between Ralston and any
such third-party in which Agri is granted a sub-license to use any such Shared
Technical Information and Know-How.
(c) Upon effectuation of a sub-license agreement to Agri, as
contemplated under Sections 4.1(a) above, if any, Agri agrees to defend,
indemnify, and hold Ralston harmless from and against any and all claims,
actions, suits, demands, obligations, investigations, causes of action,
judgments, losses, damages, costs, and expenses (including, but not limited
to, attorneys' and expert witness fees), arising out of or relating to any
activities, omissions, and/or breaches which occur subsequent to the Effective
Date and which could have, may have, and/or which are brought against Ralston
and/or Agri for alleged or actual breaches of any of the obligations and
duties assumed and/or undertaken by Agri under any such sub-license
agreement(s).
Article 5 - Confidentiality
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5.1 Subject to the provisions of Section 5.9 below, the term
"Proprietary Information" shall mean and include only: (i) the Agri Technical
Information and Know-How; (ii) the Shared Technical Information and Know-How;
(iii) the Expressly Excluded Technology; and (iv) any other information that
the parties hereto agree in writing to designate as "Proprietary Information"
under this Agreement.
5.2 Agri acknowledges, understands and agrees, and any permitted
sub-licensees shall agree, that: (i) Ralston has expended substantial time,
money and effort researching and developing its Proprietary Information; (ii)
the Proprietary Information provides it with a significant competitive
advantage in the marketplace; (iii) the Proprietary Information is
confidential, proprietary and trade secret information; (iv) if the
Proprietary Information was disclosed or misused, Ralston would suffer
substantial irreparable harm and likely lose its competitive advantage in the
marketplace; (v) as of the Effective Date, agri is not aware of any facts or
allegations which would, in any way or manner, compromise the confidentiality,
propriety and trade secret status of any of the Proprietary Information; and
(vi) Agri will not make any use of any portion of the Proprietary Information
in a manner inconsistent with the provisions of this Agreement.
5.3 Agri agrees, and any permitted sub-licensees shall agree, that
they will each use commercially reasonable security measures and efforts to
ensure that the Proprietary Information is kept and retained in confidence and
secret; however, in no event shall the degree of care exercised by Agri, or
any permitted sub-licensee, be any less than the degree of care it employs to
maintain and protect the confidentiality of its own confidential or
proprietary information.
5.4 Agri agrees, and any permitted sub-licensees shall agree, that it
will not disclose or reveal to any other person or entity (except as permitted
herein and to the extent required or permitted pursuant to the terms of the
Purina Mills Technology Agreement and/or the Assignment Agreement, the Agri
Technical Information and Know-How which qualifies as Proprietary Information
subject to the provisions of Section 5.9.
5.5 Agri agrees, and any permitted sub-licensees shall agree, that it
will not disclose or reveal to any other person or entity (except as expressly
permitted herein) the Shared Technical Information and Know-How and/or the
Expressly Excluded Technology, which qualifies as Proprietary Information
subject to the provisions of Section 5.9. Agri agrees, and any permitted
sub-licensee shall agree, that it will only disclose the Shared Technical
Information and Know-How which qualifies as Proprietary Information subject to
the provisions of Section 5.9 to its employees, agents, officers, and
directors which have a need to know such information in connection with the
purpose of any licenses granted Agri herein and, further, that prior to
disclosing any Proprietary Information to any such persons it will require any
such employees, agents, officers, and directors to agree in writing to be
bound by and comply with the confidentiality and use restrictions of this
Article 5 to the same extent Agri is obligated herein.
5.6 Agri agrees, and any permitted sub-licensees will agree, to
promptly notify Ralston of any unauthorized use of any Proprietary Information
to the extent Agri or a sub-licensee learns or otherwise becomes aware of any
unauthorized use and to reasonably cooperate with Ralston in pursuing and
protecting its legal rights in regard to such unauthorized use.
5.7 In the event of a breach or threatened breach of any of Agri's
and/or any permitted sub-licensee's confidentiality duties and obligations
under the terms and provisions of this Article 5, Ralston shall be entitled,
in addition to any other legal or equitable remedies that it may be entitled
to (including any rights to damages that it may suffer), to temporary,
preliminary and permanent injunctive relief restraining such breach or
threatened breach.
5.8 Prior to disposing of any documentation, media, equipment,
machinery, software, or the like, containing or reflecting any Proprietary
Information, Agri agrees, and any permitted sub-licensees shall agree, that it
will first destroy, obliterate, and/or otherwise remove any and all
Proprietary Information from such materials.
5.9 Notwithstanding any other provision of this Agreement,
information shall not be considered to be Proprietary Information, and neither
party shall have any obligations respecting, nor be liable for, the use and
disclosure thereof, if the party alleging that such information is not
confidential, proprietary and/or a trade secret can prove that the
information: (a) was known to the trade or public at the time that the
information was disclosed to it; or (b) is or becomes generally known to the
trade or public through no fault on the recipient party's part; or (c) is
independently generated after the Effective Date by employees of a party, or
on its behalf by its agents, contractors, or consultants, without the use or
benefit of any Proprietary Information.
5.10 It is understood and agreed that nothing in this Agreement shall
preclude Ralston from licensing its Shared Technical Information and Know-How
and/or the Expressly Excluded Technology to any other persons or entities,
except that Ralston shall not license Shared Technical Information and
Know-How in connection with the manufacture or production of Agri Products in
the Territory.
5.11 All of the provisions of this Article 5 regarding
confidentiality shall survive the expiration and/or termination of this
Agreement.
Article 6 - Indemnification
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6.1 Subject to Section 6.2, Agri agrees to defend, indemnify and hold
Ralston and its Affiliates and their respective officers, directors,
employees, agents, representatives, shareholders, successors and assigns
harmless from and against any and all claims, actions, suits, demands,
obligations, investigations, causes of action, judgments, losses, damages,
costs, and expenses (including, but not limited to, attorneys' and expert
witness fees), arising out of or relating to: (i) the breach by Agri of any
material warranty, representation, covenant, commitment or undertaking made
hereunder; (ii) any act or omission of Agri; (iii) any allegation relating to
the production, manufacture, marketing, advertising, promotion, distribution,
use, offer for sale, or sale of any goods and/or services by Agri and/or on
Agri's behalf including, but not limited to, Agri Products; (iv) any and all
alleged negligent acts, fraud or omissions of or by Agri, its officers,
directors, employees, agents, representatives, independent contractors, and/or
sub-licensees, in connection with the production, manufacture, marketing,
advertising, promotion, distribution, use, offer for sale, or sale of any
goods and/or services including, but not limited to, Agri Products; (v) any
and all allegations relating in any way or manner to products liability,
defective goods, failure to warn, or the like, as applied to goods and/or
services produced, manufactured, marketed, advertised, promoted, distributed,
used, offered for sale, or sold by or on behalf of Agri; or (vi) Agri's
alleged or actual failure to comply with any governmental and/or other laws,
statutes, ordinances, rules, and/or regulations.
6.2 Notwithstanding the foregoing, Agri shall not have any obligation
to indemnify Ralston for a singly claim, action, suit, demand, obligation,
investigation, cause of action, judgment, loss, damage, cost, and/or expense
(including, but not limited to, attorneys' and expert witness fees), which has
a total damage value of less than Ten Thousand Dollars $10,000.
Article 7 - Assignability
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7.1 Ralston shall have the right to transfer some or all of its
rights and obligations under this Agreement, either by affirmative act or by
operation of law, by share ownership or otherwise, without the consent of
Agri. Agri shall have the right to transfer its rights and obligations under
this Agreement, either by affirmative act or by operation of law, by share
ownership, or otherwise, only upon its receipt of the prior written consent of
Ralston, which consent will not be unreasonably withheld. By way of example
only, the parties agree that it would be reasonable for Ralston to withhold
consent if Agri desired to transfer its rights and obligations under this
Agreement to a transferee who would thus acquire rights for a territory
covering less than a continent (e.g., Africa, Europe, Asia), or desired to
transfer any of its rights hereunder to a Principal Competitor of Ralston
anywhere in the world. "Transfer" as used in this Section 7.1 shall mean: (a)
the transfer, assignment, or conveyance (by any means including, but not
limited to, operation of law) of all or part of Agri's interest in, to or
under this Agreement or its rights or obligations hereunder; and/or (b) one or
more third-party(ies) acquiring, purchasing, and/or gaining (by any means
including, but not limited to, operation of law) a voting, profits or equity
interest of _______ percent (___%) or more in Agri; and/or (c) a change in
control transaction involving Agri.
Article 8 - Notice
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8.1 All notices, requests, demands, and other communications under
this Agreement or in connection therewith shall be given to or made upon the
respective parties hereto as follows:
Ralston Agri
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Ralston Purina Company Agribrands International, Inc.
Checkerboard Square 9811 South Forty Drives
St. Louis, Missouri 63164 St. Louis, Missouri 63124
Attn: General Counsel Attn: General Counsel
or to such other address, and to the attention of such other officers or
persons as each of the parties hereto may specify by notice in writing to the
other.
8.2 All notices, requests, demands, and other communications given or
made in accordance with the provisions of this Agreement shall be in writing
and by certified or registered mail, and if received shall be deemed to have
been given when deposited in the United States mail, postage prepaid.
Article 9 - Termination
- --------------------------
9.1 In the event Agri shall commit a material breach of any material
term, provision or condition of this Agreement, this Technology [TRANSFER AND
LICENSE] Agreement shall be terminable upon ninety (90) days written notice by
Ralston to Agri. Such termination shall become effective unless: (i) within
that ninety (90) day period Agri has initiated and is taking reasonable
measures to remedy such breach; and (ii) such breach has been remedied to the
reasonable satisfaction of Ralston within one hundred eighty (180) days
following such notice. This Technology [TRANSFER AND LICENSE] Agreement shall
also be terminable by Ralston upon ninety (90) days written notice by Ralston
to Agri in the event Agri Products attempts or seeks to assign, convey and/or
transfer all or any part of this Technology [TRANSFER AND LICENSE] Agreement
in any way or manner other than as provided in Article 7 above. Any
termination shall not prejudice any cause of action or claims of Ralston
accrued or to accrue on account of any material breach or default by Agri.
9.2 Agri acknowledges and agrees that it will immediately terminate
any and all permitted sub-license agreements under this Agreement in the event
any such sub-licensee materially breaches any such sub-license agreement
including, but not limited to, the terms or provisions requiring that such
sub-licensee be bound by and comply with the terms and provisions of Article 5
herein, and fails to cure any such breach, if curable, within thirty (30) days
after said breach. Each sub-license agreement shall permit such termination.
Article 10 - Miscellaneous Provisions
- -----------------------------------------
10.1 Agri understands, acknowledges and agrees that any and all
licenses and/or technical service agreements previously entered into between
Ralston and/or Ralston International Service Corporation, on the one hand, and
the Agri Business, on the other, shall be, at a minimum, amended to conform to
be consistent with the terms, provisions and conditions of this Agreement. In
the event any of the terms, provisions of conditions of any licenses and/or
technical service agreements previously entered into between Ralston and/or
Ralston International Service Corporation, on the one hand, and the Agri
Business, on the other, differ in any manner whatsoever, the terms, provisions
and conditions of this Agreement shall govern.
10.2 Agri understands, acknowledges and agrees that because Ralston
International Service Corporation ("RISCO") will become an Affiliate of Agri
in accordance with the terms and provisions of the Reorganization Agreement,
any and all license agreements, technical service agreements, and/or the like,
which were entered into between Ralston and RISCO prior to the Effective Date,
which granted RISCO any license rights to RISCO, or which otherwise permitted
or allowed RISCO, to use or in any way employ any Expressly Excluded
Technology, are hereby terminated.
10.3 Legal Enforceability. Any provision of this Agreement which is
--------------------
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, deemed automatically amended so that it is enforceable to the
maximum extent permissible under the laws of that jurisdiction without
invalidating the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Each party
acknowledges that money damages would be an inadequate remedy for any breach
of the provisions of this Agreement and agrees that the obligations of the
parties hereunder shall be specifically enforceable.
10.4 The waiver of any breach or non-enforcement of any provision of
this Agreement shall not be a waiver of future compliance or a waiver to the
provisions hereof.
10.5 Dispute Resolution. ]
-------------------
(a) If any question or dispute shall arise in regard to: (i) the
interpretation of any provision of this Agreement; or (ii) the rights or
obligations of either party hereunder; or in the event any dispute(s) shall
arise between the parties hereto which otherwise relate to or arise under this
Agreement, whether based on contract, tort, statute or otherwise, (hereinafter
collectively "Disputes"), such questions and disputes shall, in the first
instance, be exclusively governed by and settled in accordance with the
provisions of this Section 10.5; provided, that the foregoing shall not
preclude equitable or other judicial relief to enforce the provisions hereof
or to preserve the status quo pending resolution of Disputes hereunder.
Either party to this Agreement (each a "Party" and together the "Parties") may
commence proceedings hereunder by delivery of written notice providing a
reasonable description of the Dispute to the other, including a reference to
this Section 10.5 (the "Dispute Notice").
(b) Negotiations Between Executives. The Parties shall first attempt
-------------------------------
in good faith to resolve promptly any Dispute by negotiations between
executives who are not directly involved in the Dispute, and who have
authority to settle it (as to each Party, an "Executive"). Not later than 20
days after delivery of the Dispute Notice, each Party shall designate an
Executive to meet with the other Party's Executive at a reasonably acceptable
time and place, and thereafter as such Executives deem reasonably necessary.
The Executives shall exchange relevant information and endeavor to resolve the
Dispute. Prior to any such meeting, each Party's Executive shall advise the
other as to any other individuals who will attend such meeting. All
negotiations pursuant to this Section 10.5(b) shall be confidential and shall
be treated as settlement and compromise negotiations for purposes of Rule 408
of the Federal Rules of Evidence and similarly under other federal and state
rules of evidence.
(c) Mediation. Except to the extent the Parties agree to continue
---------
proceedings pursuant to Section 10.5(b) above, the Parties shall, commencing
not later than 90 days after the date of delivery of the Dispute Notice,
endeavor to settle the Dispute by Mediation pursuant to the Center for Public
Resources ("CPR") Model Procedure for Mediation of Business Disputes, as
amended from time to time, and/or according to such other or additional rules
or procedures as the Parties may mutually agree upon in writing. The neutral
third party in such Mediation shall be as agreed by the Parties or, failing
such agreement, selected with the assistance of the CPR.
10.6 This Agreement is deemed to be entered into, executed and
delivered within the State of Missouri, and it is the intention of the parties
that it shall be construed, interpreted and applied in accordance with the
laws of the State of Missouri without regard to its conflict of laws
provisions.
10.7 Ralston and Agri hereby agree that any and all disputes,
causes of action, lawsuits, or the like, arising out of and/or under this
Agreement, except for the Dispute Resolution procedures set forth in Section
10.5 above, shall be brought only in a state court located in St. Louis,
Missouri, or the United States District Court for the Eastern District of
Missouri. Ralston and Agri each hereby consent and submit to the jurisdiction
of any such court and waives any objection it may have to either jurisdiction
or venue in any such court.
10.8 Agri shall have the right:
(a) to bring suit in its own name at its own expense and on its
own behalf, for infringement of the exclusive rights licensed to Agri
hereunder;
(b) in any suit, to seek to enjoin the infringement by any
third-parties of the exclusive rights licensed to it under this Agreement and
to collect for its use, damages, profits, and awards of whatever nature
recoverable for such infringement; and
(c) to settle any claim or suit for infringement by any
third-parties of any of the exclusive rights licensed to it under this
Agreement by granting to the infringing party a sub-license in accordance with
the provisions set forth herein including, but not limited to, Article 5
above.
10.9 To the extent that Agri determines that it requires replacement
parts for the X4X or X4 extruders referenced in Section 1.18 above, and only
to the extent that Ralston is then producing such replacement part, Ralston
agrees to supply such replacement parts to Agri on reasonable commercial
terms.
10.10 Ralston and Agri agree and understand that this Agreement does
not create an employment, partnership, joint venture or agency relationship,
of any kind or nature, between the parties. Neither party shall have any
right, power, or authority to act as a legal representative of the other, and
neither party shall have any power to obligate or bind the other, or to make
any representations, warranties, express or implied, on behalf of or in the
name of the other in any manner for any purpose whatsoever.
10.11 The headings used in this Agreement are for reference only and
shall not be relied upon or used in the interpretation of this Agreement.
10.12 Notwithstanding anything to the contrary in this Agreement,
neither the execution of this Agreement nor the disclosure of any Proprietary
Information hereunder shall be construed as granting to Ralston either a
license (expressly, or by implication, estoppel, or otherwise) under, or any
right of ownership in, any information, patent, or patent application now or
hereafter owned or controlled by Agri.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed in duplicate by their respective duly authorized representatives
effective on the day and year set forth in this Agreement.
RALSTON PURINA COMPANY
By: _________________________________
Printed Name: ___________________________
Title: _________________________________
Date: _________________________________
AGRIBRANDS INTERNATIONAL, INC.
By: __________________________________
Printed Name:
Title: __________________________________
Date: __________________________________
======
SCHEDULE A
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Protein Technologies , Inc. Assignment Agreement
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SCHEDULE B
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Expressly Excluded Technology
-------------------------------
1. Ralston Designed 16" wet mixers.
2. Ralston Designed extruder slurry technology.
3. Ralston Designed coating technology.
4. Ralston Designed packaging technology.
5. Ralston Designed fine grinding technology.
6. Ralston Designed stuffing technology.
7. Ralston Designed double extrusion technology.
8. Ralston Designed liquid animal digest technology.
9. Pet Products formulations.
10. All Pet Products nutritional data.
11. All Pet Products palatability data.
12. Specifications for Ralston Designed Pet Product formulas.
13. Specifications for Ralston Designed Pet Product packaging.
14. Specifications for Ralston Designed Pet Products ingredients.
15. Specifications for Ralston Designed Pet Products processes.
16. Specifications for Ralston Pet Product suppliers.
17. Ralston X4X extruder technology except and only to the extent
expressly permitted under 1.18 of the Agreement.
18. Ralston X4 extruder technology except and only to the extent
expressly permitted under Section 1.18 of the Agreement.
SCHEDULE C
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Purina Mills Technology Agreement
---------------------------------
SCHEDULE D
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Patents
-------