EXHIBIT 10.28
SWANSON TRADEMARK LICENSE AGREEMENT (NON-U.S.)
THIS IS A TRADEMARK LICENSE AGREEMENT, dated as of March 26, 1998 (this
AGREEMENT), by and between Campbell Soup Company (LICENSOR) and Vlasic
International Brands Inc. (LICENSEE).
Background
A. Licensor owns and has the right to license the Licensed Marks set forth
in Section 1(d) below.
B. Licensor has manufactured, distributed, marketed, advertised, promoted
and sold a wide variety of food products, including frozen foods such as
dinners, breakfasts, pot pies, sandwiches and the like using the Licensed Marks
for many years.
C. Licensor owns all of the outstanding stock of Licensee and wishes to
grant the perpetual license created hereby to Licensee in exchange for the
issuance by Licensee to Licensor of four (4) shares of Licensee's capital stock,
in a transaction governed by Section 351 of the United States Internal Revenue
Code of 1986, as amended.
D. Licensee desires to utilize the Licensed Marks in connection with the
manufacture, distribution, marketing, advertisement, promotion and sale of the
products described in Section 1(e) below.
Terms
THEREFORE, in consideration of the premises and the mutual promises and
covenants herein contained and with the intent to be legally bound, the parties
agree as follows:
Section 1. Definitions. For the purposes of this Agreement:
(a) AFFILIATE means any corporation, partnership or other entity
which is owned by or controlled by or is under common ownership or control with
a party to this Agreement. Ownership or control for the purpose of this section
shall mean ownership of at least fifty percent (50%) of the voting stock or
general partnership interest of such corporation, partnership or other entity.
(b) CODE means the United States Internal Revenue Code of 1986, as
amended.
(c) LICENSE means the license granted hereunder.
(d) LICENSED MARKS means the names, logos, symbols, designs and/or
IDENTIFICATIONS, which are used in the Territory, excluding the United States,
as set forth on Exhibit "A" attached to this Agreement.
(e) LICENSED PRODUCTS means frozen foods and beverages of any type
except for frozen soup or broth, defined to include European-style soups and
broth concentrates or stocks.
(f) TERRITORY means the world, excluding the United States of
America.
Section 2. Licensing Rights.
(a) Grant of License: In exchange for four (4) shares of Licensee's
capital stock, Licensor hereby grants to Licensee the royalty-free, sole and
exclusive license to use the Licensed Marks in connection with the manufacture,
distribution, marketing, advertising, promotion and sale of Licensed Products in
the Territory in jurisdictions where Licensor has acquired rights in the
Licensed Marks and only to the extent Licensor has obtained the rights in the
Licensed Marks and only to the extent Licensor has obtained the rights to use
the Licensed Marks in such product categories. No license is granted hereunder
for the use of the Licensed Marks for any purposes other than upon the Licensed
Products and in the promotion and advertisement thereof, except that Licensee
may make reference to the Licensed Marks and/or the "Swanson" name in relation
to the identification of business units or manufacturing and sales facilities,
provided that such use is always to conjunction with the phrase "frozen foods."
Use of the Licensed Marks or the "Swanson" name in this regard shall not include
use as a trade name on product labels or in billing, invoicing or other
correspondence with customers or vendors and shall also not include use in a way
that may cause confusion for customers or vendors.
(b) Licensee shall have the right to sublicense to sublicensees,
approved in writing in advance by Licensor, such approval not to be unreasonably
withheld. Such sublicenses shall be in a commercially reasonable form which is
acceptable to Licensor, such acceptance not to be unreasonably withheld. A fully
executed copy of any sublicense granted by Licensee hereunder shall be delivered
promptly to the party identified in Section 16 below upon execution. The grant
of any such sublicense by Licensee shall not relieve Licensee of its obligations
to Licensor under this Agreement.
(c) From time to time, Licensor and Licensee may add new trademarks
and new trademark registrations to this Agreement. The new trademarks may be
either new renderings of existing trademarks or trademarks created by combining
some element of a Licensed Mark with new material. The new trademark
registrations may cover new trademarks and/or new countries in which the
trademarks would be registered. To the extent the description of goods in any
application for registration of a new trademark or rendering of existing
trademarks is limited to Licensed Products, Licensee shall bear the costs of
searching for, obtaining and/or renewing any such trademarks.
(d) To add a new trademark to this Agreement, Licensee may at any
time submit to Licensor a notice requesting an amendment of Exhibit "A" to add
(i) a new rendering of a Licensed Mark or (ii) a new Licensed Mark combining
some element of an existing Licensed Mark with new material such that the new
Licensed Mark is properly a trademark associated with an existing Licensed Mark
(hereinafter "2(d) Notice"). Upon receipt of a 2(d) Notice, Exhibit "A" shall be
amended in accordance with the terms of the 2(d) Notice unless Licensor delivers
to Licensee, within 30 days of receipt of the 2(d) Notice, written notice of its
determination that the requested addition to Exhibit "A" would create a
substantial risk that the Licensed Marks would be unenforceable as against third
parties, would disparage or would bring
the Licensed Marks into disrepute, or would harm the goodwill of the Licensed
Marks, and the basis for such determination. The basis for such a determination
must be reasonable.
(e) Licensor shall, at Licensee's expense, use its best reasonable
efforts to file new trademark applications as requested by Licensee in respect
of any new trademarks as referred to in section 2(d) and any new countries as
referred to in section 5 of this Agreement and prosecute all such applications
and maintain all resulting registrations for the duration of this Agreement
unless Licensee agrees in writing that they may lapse.
Section 3. Terms of License.
The License shall be perpetual unless it is sooner terminated in
accordance with any other provision hereof.
Section 4. Approval.
(a) Licensee shall use the Licensed Marks in the same manner as they
were used by Licensor immediately before the date of this License and shall
obtain the prior written approval of Licensor (such approval not to be
unreasonably withheld or delayed by more than five (5) working days from receipt
of a notice requesting approval) to the visual appearance and labeling of all
packaging, advertising materials and promotions bearing the Licensed Marks which
it intends to use. The notice which is sent to Licensor must specify that
Licensor must respond within five (5) days or such use is deemed to be approved.
If Licensee fails to comply with such notice requirement then there shall be no
such deemed approval. Licensor may withhold its approval only by means of a
written description of the reason or reasons why approval has been withheld.
Notwithstanding the foregoing, Licensee shall not be required to obtain the
approval of Licensor of non-material changes to labeling, advertising or
promotional materials, including but not limited to minor changes in product
ingredients, product description or nutrition information. All submissions for
approval shall be made to the Trademark Counsel of Licensor at the address set
forth in Section 16.
(b) On reasonable request by Licensor, Licensee agrees to supply
Licensor, at Licensor's expense, samples of Licensed Products offered for sale
or otherwise provided to third parties under the Licensed Marks, and samples of
the advertising and promotional materials in or on which the Licensed Marks
appear. Such requests shall occur no more than once per contract year.
(c) If Licensor finds that any of the Licensed Products bearing or
intended to bear the Licensed Marks are not in conformity with any of Licensee's
obligations under this Section, Licensor shall give Licensee written notice of
such fact setting forth evidence of such lack of conformity. Licensee shall have
sixty (60) days to cure such lack of conformity. If Licensee cannot cure such
lack of conformity, Licensee undertakes that it will not sell any such
nonconforming products under the Licensed Marks without first conforming them to
such obligation, or without the prior written consent of Licensor; subject to
Licensee's right to dispute such alleged nonconformity in accordance with
Section 23 hereof.
(d) The parties hereby undertake that:
(i) Neither party will use the Licensed Marks, or in the case of
Licensor, related marks, in a manner which causes or is likely to cause harm to
the goodwill attached to the Licensed Marks; and
(ii) Each party will maintain all necessary approvals and licenses
in relation to the products on which the Licensed Marks are used as may be
required in any jurisdiction.
Section 5. Market Expansion.
The Licensed Marks are not registered in all jurisdictions throughout the
world and may not be available for use, and/or registration, in specific
jurisdictions. Licensee shall notify Licensor in the event Licensee desires to
expand the sale of products bearing the Licensed Marks in countries outside of
those identified in Exhibit A. Upon such notice, Licensor shall, at Licensee's
expense, undertake to register some or all of the Licensed Marks in that country
or countries.
Section 6. Quality Control; Right to Inspect.
(a) Licensee shall comply in all material respects with established
industry standards, good manufacturing and storage practices, and laws and
regulations having application to the production, manufacture, advertisement or
sale of Licensed Products, and shall maintain a vigorous quality control and
safety assurance program with respect to the Licensed Products (hereinafter
LICENSOR'S QUALITY CONTROL STANDARDS). Licensee further agrees that the Licensed
Products and labeling used in conjunction with such Licensed Products will not
at any time be misbranded, adulterated or otherwise unlawful. All Licensed
Products manufactured and distributed prior to the date of this Agreement by
Licensor shall be deemed to conform to the standards set forth in this Section 6
and Licensee agrees to continue manufacturing these product lines at comparable
or better quality.
(b) Licensee agrees to manufacture any newly developed or newly
formulated products bearing the Licensed Marks in accordance with Licensor's
Quality Control Standards. During the development of such newly developed or
newly formulated products, Licensee shall submit laboratory samples of such
products to Licensor from time to time for approval not to be unreasonably
withheld in respect of the taste and other physical characteristics (e.g.,
viscosity, texture, color) of the products as well as their overall character.
Such approval shall be in writing and shall be delivered within twenty-one (21)
days following receipt.
(c) Licensor shall have the right to conduct, during regular
business hours, on three (3) business days notice, an examination of Licensed
Products manufactured by Licensee at Licensee's facilities, or at a third party
manufacturer's facilities, to ensure compliance with Licensor's Quality Control
Standards established in accordance with this Agreement.
Section 7. Protection of Rights.
(a) Goodwill: The parties hereto recognize the great value of the
goodwill associated with the Licensed Marks and acknowledge that, subject to the
License granted hereunder, all rights therein and goodwill attached thereto
belong exclusively to Licensor, and that the Licensed Marks have secondary
meaning in the minds of public. The parties agree that
they will not, during the term of this Agreement or thereafter, attack each
other's respective property rights in and to the Licensed Marks, or attack the
validity, legality or enforceability of this Agreement.
(b) Assistance in Protecting Marks: The parties shall cooperate to
the fullest extent necessary to assist each other in the protection of their
respective property rights with respect to the Licensed Marks against third
parties, including, without limitation, executing and delivering any and all
documents necessary or desirable in connection with obtaining, defending or
maintaining rights in and to the Licensed Marks. The party whose rights are
being challenged shall reimburse the other party for any reasonable
out-of-pocket costs actually incurred by such other party in providing such
cooperation and assistance. Licensor shall take all actions reasonably necessary
to maintain registrations of the Licensed Marks in full force and effect.
(c) Ownership of Marks: Licensee acknowledges that Licensor is the
owner of the Licensed Marks, subject to the License granted hereunder. Any
intellectual property rights in the Licensed Marks that may accrue to Licensee,
including those rights in countries not identified in Exhibit A, shall, except
as provided in this License, inure to the benefit Licensor and shall be assigned
to Licensor upon its request. Licensee acknowledges that it has received a
perpetual license to use the Licensed Marks and that this Agreement does not
constitute any form of assignment or transfer of ownership in the Licensed Marks
except as provided in this License, or the right to register any trademark(s)
similar to the Licensed Marks so as to suggest association with or sponsorship
by Licensor in the United States or in any other country in the wor1d, or the
right to use any trademark or trademarks similar to the Licensed Marks, except
as provided in this License. Licensee shall take all necessary steps to secure
an assignment to Licensor of the copyright from a creator of work incorporating
the Licensed Marks that is not a work-for-hire.
(d) Notices, Labeling and Records: In every instance in which any
Licensed Mark is used, Licensee shall cause to appear on the packaging of each
Licensed Product sold, the notice "(TM)" "(R)" "(C)" or such other copyright,
trademark or service mark notices (including the form, location and content of
such notices) as Licensor reasonably designates together with the statement
"used under license." Licensee shall keep appropriate records, and advise
Licensor, of the date when products approved under the terms of Section 4(a)
have been first placed on sale or sold (along with a copy of the invoice) and
when promotional or packaging materials have first been used (i) in the case of
additions to Exhibit "A" pursuant to Section 2(c) and( ii) in additional
countries pursuant to Section 5, all in order to support the efforts of Licensor
to secure and maintain valid registrations of the Licensed Marks. (e) Licensee
Trade Names and Trademarks: Licensee shall not incorporate the Licensed Marks
into Licensee's corporate or business name or trademark in any manner whatsoever
and shall place its trade names and trademarks on Licensed Products only as
approved by Licensor.
Section 8. Infringements.
(a) Licensor and Licensee shall promptly notify each other of any
actual or threatened infringement or dilution of or act of unfair competition
with respect to the Licensed
Marks in the Territory and shall consult with each other about any material
action to be taken. Licensor shall use its best reasonable efforts and exercise
diligence to successfully prosecute such infringements or acts of unfair
competition or dilution. All costs, disbursements and expenses of any actions
which Licensor prosecutes for the benefit of Licensee shall be borne by
Licensee, and all other costs, disbursements and expenses shall be borne by
Licensor.
(b) If Licensor elects not to initiate legal action against
infringement relating to the Licensed Products, Licensee shall have the right at
its own expanse to take legal action to obtain appropriate relief and Licensor
shall be joined as a party in any such action and shall reasonably cooperate
with and assist Licensee in its prosecution of such action. The costs of such
joinder and any assistance by Licensor shall be reimbursed by Licensee.
(c) If the parties agree to jointly take action against an
infringement, or act of unfair competition or dilution, with respect to the
Licensed Marks, the cost of the action and any damages accruing shall be shared
equally. If one party takes action against an infringer, it shall be entitled to
retain all damage, costs or other compensation it may recover.
(d) The parties agree to fully cooperate with each other in relation
to any legal, administrative or other proceedings relating to the Licensed Marks
or Licensed Products and to sign any and all necessary documents as may be
necessary to effectuate the purpose of this Agreement.
Section 9. Representations and Warranties.
(a) Each party represents and warrants that it has the right and
authority to enter into and perform this Agreement and to grant the rights and
render the performances required under this Agreement. Licensee represents and
warrants that the shares of its capital stock issued to Licensor hereunder are
duly authorized and issued, fully paid and non-assessable shares. Licensee
represents and warrants that all advertising and promotional materials shall
comply with all applicable laws, regulations and standards. Licensor's approval
of such materials is not a representation that Licensor believes such materials
are sufficient to meet applicable laws, regulations and standards, nor is it a
representation that Licensor agrees with or supports any claims made by Licensee
in any advertising materials relating to the Licensed Products. Licensee further
represents and warrants that all advertising and promotional materials and all
graphics used on Licensed Products will not violate the intellectual property
rights of any third party.
(b) Breaches of warranties under thus Section 9 trigger the right to
indemnification in accordance with Section 10 below. Such breaches shall not
form the basis for termination in accordance with Section 13 below.
Section 10. Indemnifications.
(a) Licensor shall be solely responsible for, and shall defend, hold
harmless and indemnify Licensee, its subsidiaries and each of their respective
Affiliates, directors, officers, employees and agents against any claims,
demands, causes of action or damages, including reasonable attorneys' fees and
expenses (collectively CLAIMS) arising out of: (i) a claim that the use of the
Licensed Marks as authorized by this Agreement violates or infringes upon the
trademark, copyright or other intellectual property rights of a third party in
or to the Licensed Marks, (ii) any defect in a product produced by or under the
authority of Licensor other than under this Agreement or any packaging or other
materials (including advertising materials), or arising from personal injury or
damages or loss to property or any infringement of any rights of any other
person or entity by the manufacture, sale, possession use of such products or
their failure to comply with applicable laws, regulations and standards, or
(iii) any breach of any representation, warranty, covenant or agreement made by
Licensor herein, provided Licensor is given prompt written notice of and shall
have the option to undertake and conduct the defense of any such Claim. In any
instance to which the foregoing indemnities pertain, Licensee shall cooperate
fully with and assist Licensor in all respects in connection with any such
defense. Licensor shall reimburse Licensee for all reasonable out-of-pocket
costs actually incurred by Licensee in connection with such cooperation and
assistance. In any instance to which such indemnities pertain, Licensor shall
not enter into a settlement of such Claim or admit liability or fault without
Licensee's prior written approval.
(b) Licensee shall be solely responsible for, and shall defend, hold
harmless and indemnify Licensor, its subsidiaries and each of their respective
Affiliates, directors, officers, employees and agents against Claims arising out
of or in connection with: (i) any act or omission of Licensee in relation to
this License; (ii) any unauthorized use by Licensee of the Licensed Marks; (iii)
any breach of any representation, warranty, covenant or agreement made by
Licensee herein; (iv) any defect (whether obvious or hidden and whether or not
present in any sample approved by Licensor) in the Licensed Products or any
packaging or other materials (including advertising materials), or arising from
personal injury or damages or loss to property or any infringement of any rights
of any other person or entity by the manufacture, sale, possession or use of
Licensed Products or their failure to comply with applicable laws, regulations
and standards or (v) any Claim that the use of any design or other graphic
component of any Licensed Product (other than the Licensed Marks) violates or
infringes upon the trademark, copyright or other intellectual property rights
(including trade dress) of a third party, provided Licensee is given prompt
written notice of and shall have the option to undertake and conduct the defense
of any such Claim. In any instance to which the foregoing indemnities pertain,
Licensor shall cooperate fully with and assist Licensee in all respects in
connection with any such defense. Licensee shall reimburse Licensor for all
reasonable out-of-pocket costs actually incurred by Licensor in connection with
such cooperation and assistance. In any instance to which such indemnities
pertain, Licensee shall not enter into a settlement of such Claim or admit
liability or fault without Licensor's prior written approval.
(c) Each party hereto shall obtain and maintain, at its sole cost,
comprehensive general liability insurance coverage, including, but not limited
to, Products Liability, Contractual Liability and Advertising Liability, which
policy shall be written for the benefit of such party and which shall name the
other party and/or its Affiliates as an additional insured with respect to third
party liability. The amount of coverage (which may be comprised of a primary
general liability policy and an excess liability policy) shall be a minimum of
Two Million U.S. dollars (USD 2,000,000) per occurrence combined single limit
and Three Million U.S. dollars (USD 3,000,000) annual general aggregate. The
policy and certificate of insurance shall be endorsed to indicate that the
acquiring party's insurance is primary and not in excess of or contributory to
any other insurance in effect for the other party and all related entities. Such
insurance shall be carried by an insurer authorized to conduct business in the
State of New Jersey with a rating by
A.M. Best & Co. of at least A- or other rating satisfactory to the party being
named as the additional insured. Such insurance policy shall also provide that
the party being named as the additional insured receive written notice within
thirty (30) days prior to the effective date of the cancellation, nonrenewal or
any material change in coverage. Each party (i) shall deliver to the other party
a certificate of such insurance evidencing satisfactory coverage prior to or
simultaneously with the execution of this Agreement, and (ii) shall not modify
such policy so as not to comply with the terms of this section. Such insurance
obligations shall not limit either party's indemnity obligations, except to the
extent that one party's insurance company actually pays the other party amounts
which the insured party would otherwise be obligated to pay the other party.
Section 11. Confidentiality.
The parties expressly acknowledge and agree that all technical and/or
commercial information, whether written or oral, furnished by either party
(DISCLOSING PARTY) to the other (RECEIVING PARTY) or an officer, director,
employee, agent or representative thereof (REPRESENTATIVE) and relating to the
formulation, production, marketing, advertising, promotion, distribution or sale
of the Licensed Products shall be deemed to be confidential information and
shall not be used for its own commercial purposes or disclosed to any third
party, but shall be safeguarded and maintained by each Receiving Party and
Representative in confidence, provided, however, that this obligation of
confidentiality with respect to the confidential information of a Disclosing
Party shall not apply to information which (a) is or becomes generally available
to the public other than as a result of a disclosure by a Receiving Party or its
Representatives; (b) was available to Receiving Party on a nonconfidential basis
prior to its disclosure by Disclosing Party, or (c) becomes available to
Receiving Party on a nonconfidential basis from a person other than Disclosing
Party who is not otherwise bound by a confidentiality agreement with Disclosing
Party or its Representatives, or is not otherwise prohibited from transmitting
the information to Receiving Party.
Section 12. Third Party Manufacture; Compliance.
If Licensee desires to have a third party manufacture the Licensed
Products, Licensee must first notify Licensor of the name and address of such
third party. Licensee shall have the right to withhold approval for such third
party manufacturer, such approval not to be unreasonably withheld. If any of
Licensee's authorized manufacturers use the Licensed Marks for any unauthorized
purpose, Licensee shall be responsible for, and shall cooperate fully and use
its best efforts in stopping such unauthorized use.
Section 13. Termination.
(a) Without prejudice to any other rights Licensor may have pursuant
to this Agreement or otherwise, Licensor shall have the right to terminate this
Agreement at any time if:
(i) Licensee or any guarantor under this Agreement shall be
unable to pay its liabilities when due, or shall make any assignment for the
benefit of creditors, or under any applicable law admits in writing its
inability to meet its obligations when due or commit any
other act of bankruptcy, institute voluntary proceedings in bankruptcy or
insolvency or permit institution of such proceedings against it.
(ii) Licensee shall fail to perform or shall be in breach of
any other material term or condition of this Agreement; provided, however, that
if such breach can be cured, termination shall take effect sixty (60) days after
written notice of such breach is sent by Licensor if such breach has not been
cured during such sixty (60) day period.
(iii) Licensee shall fail to sell Licensed Products in the
Territory for a continuous period of three (3) years.
(b) Licensee shall have the right to terminate this Agreement at any
time if:
(i) Licensor or any guarantor under this Agreement shall be
unable to pay its liabilities when due, or shall make any assignment for the
benefit of creditors, or under any applicable law admits in writing its
inability to meet its obligations when due or commit any other act of
bankruptcy, institute voluntary proceedings in bankruptcy or insolvency or
permit institution of such proceedings against it.
(ii) Licensor shall fail to perform or shall be in breach of
any other material term or condition of this Agreement; provided, however, that
if such breach can be cured, termination shall take effect sixty (60) days after
written notice of such breach is sent by Licensee if such breach has not been
cured during such sixty (60) day period.
(iii) In the event the events set out in Section 13(b)(i) or
13(b)(ii) occur, Licensee shall have the continued rights as Licensee to use the
Licensed Marks in connection with Licensed Products in accordance with the terms
and conditions set forth hereunder.
Section 14. Disposal of Stock.
After termination of this Agreement, Licensee shall have no further right
to manufacture, authorize any third party to manufacture, advertise, distribute,
sell, promote or otherwise deal in any Licensed Products or use the Licensed
Marks except as provided below. For a period of one hundred and eighty (180)
days following the effective date of termination of this Agreement, Licensee may
sell-off and deliver completed Licensed Products which are on hand at the
effective date of termination (the SELL-OFF PERIOD); Licensor shall have the
option to conduct physical inventories before the termination of this Agreement
until the end of the Sell-Off Period in order to verify disposal of stock. If
Licensee refuses to permit such physical inventory, Licensee shall forfeit its
right to dispose of its inventory. Upon termination of the Agreement or after
the Sell-Off Period, as the case may be, all inventory on hand or in process
(including all promotional and packaging materials) will either be returned to
Licensor or destroyed and Licensee shall deliver to Licensor a certified
statement signed by Licensee's President or Chief Financial Officer that such
materials have been returned to Licensor or destroyed.
Section 15. Equitable Relief.
The parties acknowledge that the Licensed Marks possess a special, unique
and
extraordinary character which makes difficult the assessment of the monetary
damage which a party would sustain as a result of the unauthorized use of the
Licensed Marks or any challenge to the validity of the Licensed Marks. The
parties further acknowledge that: (i) a failure to manufacture, advertise,
distribute, sell and promote the Licensed Products in accordance with this
Agreement, including a failure to satisfy an obligation to maintain and not to
detract from the value of the Licensed Marks, (ii) the unauthorized use of the
Licensed Marks, (iii) a failure to protect the Licensed Marks and prosecute any
action against infringement (or to cooperate in such prosecution), or (iv)
failure to reach agreement as to the reasonableness of the consent to assign in
accordance with Section 21 below, will cause immediate and irreparable damage to
the injured party for which such party would not have an adequate remedy at law.
Therefore, the parties agree that, in the event of a breach of this Agreement by
a party, in addition to such other legal and equitable rights and remedies as
shall be available to the other party, such other party shall be entitled to
injunctive and other equitable relief, without the necessity of proving damages
or furnishing a bond or other security.
Section 16. Notices.
All notices, requests, claims and other communications hereunder shall be
in writing and shall be given or made (and shall be deemed to have been duly
given or made upon receipt) by delivery by hand, by reputable overnight courier
service by facsimile transmission, or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the address (or
at such other address for a party as shall be specified in a notice given in
accordance with this Section 16) listed below:
If to Licensor: CAMPBELL SOUP COMPANY
Campbell Place
Camden, New Jersey 08101
Attn.: Trademark Counsel
Fax No. (609) 342-3936
If to Licensee: VLASIC INTERNATIONAL BRANDS INC.
Box 625
Route 331 South
Millsboro, Delaware 19966
Attn.: Vice President
Fax No. (302) 934-3819
or to such other address as any party may, from time to time, designate in a
written notice given in a like manner. Notice given by hand shall be deemed
delivered five calendar days after the date the same is mailed. Notice given by
reputable overnight courier shall be deemed delivered on the next following
business day after the same is sent. Notice given by facsimile transmission
shall be deemed delivered on the day of transmission provided telephone
confirmation of receipt is obtained promptly after completion of transmission.
Section 17. No Joint Venture.
Nothing herein contained shall be construed to place the parties in the
relationship of
partners or joint venturers or principal and agent or employer and employee and
no party shall have the power to obligate or bind the other party in any manner
whatsoever.
Section 18. Entire Agreement.
This Agreement constitutes the entire Agreement and understanding between
the parties with respect to the subject matter and terminates and supersedes any
such prior agreement or understanding, oral or written, between Licensor and
Licensee with respect to the Licensed Marks and/or the Licensed Products. None
of the provisions of this Agreement can be waived or modified except in writing
signed by both parties. THERE ARE NO REPRESENTATIONS, PROMISES, AGREEMENTS,
WARRANTIES, COVENANTS OR UNDERTAKINGS MADE BY Licensor OR BY Licensee OTHER THAN
THOSE EXPRESSLY CONTAINED HEREIN.
Section 19. Severability.
In the event any provision of this Agreement shall for any reason be void
or unenforceable by reason of any provision of applicable law, it shall be
deleted and the remaining provisions shall continue in full force and effect and
be amended to the extent, if at all, necessary to give effect to the intentions
of the parties as of the date of this Agreement.
Section 20. Tax Consistency.
The parties shall treat the grant of the License in exchange for
Licensee's capital stock as an exchange of property governed by Section 351 of
the Code (and related provisions). No party shall take a position inconsistent
with the foregoing on any tax return in any tax examination, tax administrative
proceeding or tax litigation.
Section 21. Assignment; Change In Control.
This Agreement and any rights granted under this Agreement are personal to
Licensee and shall not be assigned or encumbered, directly or indirectly, by law
or by contract, except to an Affiliate, without Licensor's prior written
consent, such consent not to be unreasonably withheld. The notice which is sent
to Licensor must specify that Licensor must respond within twenty (20) days or
such assignment or encumbrance is domed to be approved. If Licensee fails to
comply with such notice requirement then there shall be no such deemed approval.
If Licensee fails to comply with such notice requirement then there shall be no
such deemed approval. Licensor may withhold its approval only by means of a
written description of the reason or reasons why approval has been withheld. Any
transfer of a controlling interest in Licensee or in any party which controls
Licensee as of the effective date of this Agreement, directly or indirectly,
shall be deemed an assignment governed by the proceeding sentences. Any
nonconsensual assignment or encumbrance of this Agreement by Licensee shall be
invalid and of no force or effect. Upon any such nonconsensual assignment or
encumbrance, this Agreement shall terminate and all rights granted under this
Agreement shall immediately revert to Licensor.
Section 22. Cooperation.
(a) The parties agree to consult with one another in good faith in
an effort to resolve any situation arising out of their respective uses of the
Licensed Marks where customers or consumers may misdirect communications.
(b) The parties shall sign all documents and do all things
reasonably necessary to effectuate the terms and intent of this Agreement
including, but not limited to, cooperating with efforts to register the Licensed
Marks anywhere in the world.
Section 23. Arbitration of Certain Matters.
Except as set forth in Section 15 above, any dispute or claim arising out
of or related to this Agreement, or the breach, termination or validity thereof,
shall be settled by arbitration in accordance with the then current Center for
Public Resources/International Trademark Association Rules for Non-Administered
Arbitration of Trademark Disputes, by three arbitrators, of whom each party
shall appoint one selected from the CPR/INTA Panel of Neutrals in accordance
with its process as the first resource for possible arbitrators. If a good faith
attempt by the parties to select from this Panel does not result in the
selection of an available suitable neutral, the parties will request CPR to
further assist in the selection in accordance with its standard selection
process using other panels. The arbitration shall be governed by the United
States Arbitration Act, 9 U.S.C. Sections. 1 - 16, and judgment upon the award
rendered by the Arbitrator(s) may be entered by any court having jurisdiction
thereof. The place of arbitration shall be New Jersey.
Section 24. Survival.
The provisions of Sections 10, 11 and 14 shall survive the termination of
this Agreement.
Section 25. No Waiver.
No waiver by either party of a breach or a default hereunder shall be
deemed a waiver by such party of a subsequent breach or default of like or
similar nature.
Section 26. Captions.
The captions used in connection with the sections of this Agreement are
inserted only for the purpose of reference and shall not affect the
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have respectively caused copies of this
Agreement to be executed by a fully authorized officer as of the day and year
first above written.
CAMPBELL SOUP COMPANY
By: /S/ BASIL ANDERSON
-----------------------------------
Name: Basil Anderson
Title: Executive Vice President/CFO
Attested to:
By: /S/ JOHN J. FUREY
-----------------------------------
Name: John J. Furey
Title: Secretary
VLASIC INTERNATIONAL BRANDS INC.
By: /S/ ROBERT F. BERNSTOCK
-----------------------------------
Name: Robert F. Bernstock
Title: President
Attested to:
By: /S/ JOHN J. FUREY
-----------------------------------
Name: John J. Furey
Title: Secretary
FOREIGN
[SWANSON MARKS]
EXHIBIT A
REGISTERED TRADEMARKS
Jurisdiction Mark Reg. No. Reg. Date
- ------------ -------------------- --------- ---------
Argentina SWANSON 1,510,930 03/31/94
Argentina SWANSON and S Design 1,510,931 03/31/94
Argentina SWANSON and S Design 1,510,932 03/31/94
Australia SWANSON & S Design B 205,769 10/25/66
Austria SWANSON & S Design 40,485 01/30/59
Bahamas S & Design 2,640 04/16/56
Bahamas SWANSON & S Design 3,010 02/24/59
Benelux SWANSON 55,529 08/02/71
Benelux SWANSON & S Design 55,530 08/02/71
Bermuda S & Design 3,094 05/05/56
Canada SWANSON 463,723 09/27/96
Canada SWANSON 43,819 09/29/52
Canada SWANSON & S Design 214/839 07/16/76
Canada SWANSON & S Design 160,025 12/13/68
Canada SWANSON & S Design 173,660 12/31/70
Canada SWANSON & S Design 159,798 12/06/68
Canada SWANSON & S Design 298,147 12/14/84
Canada SWANSON & S Design 173,664 12/31/70
Canada SWANSON & S Design 122,458 06/09/61
Canada SWANSON & S Design 120,872 01/20/61
Canada SWANSON & S Design 137,233 09/04/64
Canada SWANSON & S Design 137,234 09/04/64
Canada SWANSON & S Design 122,457 06/09/61
Canada SWANSON & Design 121,572 03/17/61
Canada SWANSON (Chinese) 454,345 02/16/96
Canada SWANSON FOR KIDS 404,640 11/06/92
Canada SWANSON GOURMET 376,498 12/07/90
Canada SWANSON POUR ENFANTS 404,641 11/6/92
Canada SWANSON & S Design 324,528 03/06/87
China (PRC) SWANSON 267,454 10/30/86
China (PRC) SWANSON 361,212 09/20/89
China (PRC) SWANSON 267,475 10/30/86
China (PRC) SWANSON 354,315 07/10/89
China (PRC) SWANSON 359,609 08/30/89
China (PRC) SWANSON 360,561 01/21/91
China (PRC) SWANSON 361,206 09/20/89
China (PRC) SWANSON 358,518 08/20/89
China (PRC) SWANSON 355,108 07/20/89
China (PRC) SWANSON 360,569 09/10/89
China (PRC) SWANSON & S Design 267,453 10/30/86
China (PRC) SWANSON & S Design 267,470 10/39/86
China (PRC) SWANSON (Chinese) 267,455 10/30/86
China (PRC) SWANSON (Chinese) 361,214 09/20/89
China (PRC) SWANSON (Chinese) 267,469 10/30/86
China (PRC) SWANSON (Chinese) 354,316 07/10/89
China (PRC) SWANSON (Chinese) 359,608 08/30/89
China (PRC) SWANSON (Chinese) 360,562 09/10/89
China (PRC) SWANSON (Chinese) 361,202 09/20/89
China (PRC) SWANSON (Chinese) 358,519 08/20/89
China (PRC) SWANSON (Chinese) 355,109 07/20/89
China (PRC) SWANSON (Chinese) 360,568 09/10/89
Cuba SWANSON (Stylized) 98,521 04/02/59
Denmark SWANSON (Stylized) 1723-1957 10/26/57
Denmark SWANSONS 1787-1959 10/03/59
Dominican SWANSON (Stylized) 9,484 05/25/56
Republic
Egypt S & Design 32,021 04/21/56
El Salvador SWANSON (Stylized) 4,471 12/12/56
France SWANSON & S Design 1,239,608 08/06/58
Germany SWANSON (Stylized) 699,410 04/25/56
Greece SWANSON & S Design 23,467 07/28/58
Greece SWANSON (Stylized) 23,466 07/28/58
Hong Kong SWANSON & S Design 8/1981 12/02/78
Hong Kong SWANSON & S Design 3063/91 09/17/91
Hong Kong SWANSON & S Design B 875/1958 01/06/58
Hong Kong SWANSON (Chinese) B 1929/1984 09/21/84
Hong Kong SWANSON (Chinese) 3061/91 09/17/91
Hong Kong SWANSON (Chinese) 3062/91 09/17/91
Italy SWANSON 361,918 03/10/60
Italy SWANSON & S Design 356,252 03/21/60
Italy SWANSON (Stylized) 325,214 02/25/57
Jamaica S & Design 6,795 04/23/56
Lebanon SWANSON (Stylized) 24,626 05/26/56
Liberia SWANSON 41285/3977 10/02/69
Liberia SWANSON & S Design 151084/3539 10/02/69
Malaysia SWANSON & S Design M/B31,522 04/30/59
Mexico SWANSON 434,226 07/26/91
Mexico SWANSON 434,753 07/26/91
Netherlands SWANSON (Stylized) 3,245 04/14/56
Antilles
Norway SWANSON & S Design 51,897 07/28/58
Norway SWANSON (Stylized) 48,114 04/16/56
Panama SWANSON (Stylized) 5,239 06/14/57
Poland SWANSON R-75889 02/12/92
Poland SWANSON & S Design R-75883 02/12/92
Saudi Arabia SWANSON 36/87 05/20/69
Saudi Arabia SWANSON & S Design 36/88 05/20/69
Singapore SWANSON & S Design B519/91 01/30/91
Singapore SWANSON & S Design B 24,874 04/29/59
Singapore SWANSON (Chinese) 7832/90 11/14/90
Singapore SWANSON (Chinese) 7833/90 11/14/90
Spain SWANSON & S Design 336,956 01/19/59
Spain SWANSON (Stylized) 306,797 07/28/56
Switzerland SWANSON (Stylized) 396,102 10/17/52
Taiwan SWANSON 397,742 04/16/88
Taiwan SWANSON & S. Design 397,741 04/16/88
Taiwan SWANSON (Chinese) 397,743 04/16/88
Taiwan SWANSON (English & Chinese) 397,714 04/16/88
Thailand SWANSON 132,365 01/13/89
Thailand SWANSON & S Design 130,807 01/13/89
Thailand SWANSON (Chinese) 154544
Trinidad and S & Design 83/1956 04/16/56
Tobago
Venezuela SWANSON & S Design 33237-F 01/15/58
Vietnam SWANSON 9,890 03/19/93
Vietnam SWANSON (Chinese) 14,307 03/11/94
Zaire SWANSON (Stylized) 3230/C 05/07/56
TRADEMARK APPLICATIONS
JURISDICTION MARK APP. NO. FILING DATE
- -------------------- ------------------ --------- -----------
Argentina SWANSON 1,875,402
Japan SWANSON & S Design 8-14651 02/15/96
Japan SWANSON & S Design 8-14652 02/15/96
Japan SWANSON & S Design 8-14653 02/15/96
Japan SWANSON & S Design 8-14654 02/15/96
Macao SWANSON (Chinese) 9221/DSE 05/09/89
Macao SWANSON (Chinese) 9220/DSE 05/09/89
Malaysia SWANSON & S Design 91/706 01/30/91
Malaysia SWANSON & S Design 91/707 02/05/91
Malaysia SWANSON & S Design 91/708 01/30/91
Malaysia SWANSON & S Design 91/709 01/30/91
Malaysia SWANSON (Chinese) 91/710 01/30/91
Malaysia SWANSON (Chinese) 91/711 01/30/91
Russian Federation SWANSON 97711471 08/01/97
Russian Federation SWANSON (Cyrillic) 97714154 09/23/97
United Arab Emirates SWANSON 11108 06/14/95
United Arab Emirates SWANSON 11109 06/14/95