Delaware
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333-148190
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26-0884348
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(State or Other Jurisdiction
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(Commission | (IRS Employer | ||
of Incorporation)
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File Number) |
Identification No.)
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101 Hudson Street, 21st Floor, Jersey City, New Jersey
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07302
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(Address of Principal Executive Offices)
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(Zip Code)
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o |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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o
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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o
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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o
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e 4(c))
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10.1*
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Juice License Agreement between Chiquita Brands L.L.C. and MOJO Organics, Inc. dated as of August 15, 2012
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Dated: February 6, 2013 | MOJO ORGANICS, INC. | ||
By:
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/s/ Glenn Simpson
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Name: Glenn Simpson
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Title: Chief Executive Officer
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TABLE OF CONTENTS
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RECITALS
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1
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DEFINITIONS
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1
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1.
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GRANT OF LICENSE
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7
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2.
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MANUFACTURE OF LICENSED PRODUCTS
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10
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3.
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TERM
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11
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4.
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ROYALTIES
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12
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5.
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STATEMENTS AND PAYMENTS
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12
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6.
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THE FACILITY
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14
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7.
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DEVELOPING AND SATISFYING DEMAND FOR LICENSED PRODUCTS; ADVERTISING
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16
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8.
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OWNERSHIP, GOODWILL AND RELATED RIGHTS
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17
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9.
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USE OF THE LICENSED MARKS
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18
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10.
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LITIGATION IN RESPECT OF THE LICENSED MARKS
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20
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11.
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EXCLUSIVE SUPPLY OF BLENDING INGREDIENTS
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20
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12.
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QUALITY CONTROL AND APPROVALS
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21
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13.
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LIABILITY
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27
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14.
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INSURANCE
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28
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15.
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INDEMNIFICATION
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29
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16.
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TERMINATION AND EXPIRATION
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29
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17.
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REMEDIES
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36
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18.
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CONFIDENTIALITY
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36
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19.
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LICENSOR'S RIGHT OF FIRST REFUSAL
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38
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20.
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PROTECTION OF BUSINESS
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38
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21.
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WARRANTIES
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39
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22.
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NOTICES
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40
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23.
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RELATIONSHIP OF THE PARTIES
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41
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24.
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FORCE MAJEURE
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41
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25.
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MISCELLANEOUS
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42
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Exhibits and Schedules:
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Exhibit I:
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Quality and Standard Requirements and Specifications
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46
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Exhibit II:
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Recall and Withdrawal Procedures
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48
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Exhibit III:
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Consumer Inquiries Procedures
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49
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Schedule A:
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Certain License Terms
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50
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Schedule B:
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Licensed Marks
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52
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Schedule C:
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Ethical Practices Addendum
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53
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Schedule D:
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APPROVED CONTAINERS
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54
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Schedule E:
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Competitors
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55
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Schedule F
:
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Outline Contents of Monthly Update Statements and CONTRACT PERIOD Statements
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56
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Schedule G
:
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Sales Contract
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58
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(a)
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Subject to the terms herein (including the requirements to obtain WRITTEN APPROVAL), LICENSOR grants to LICENSEE a limited, revocable (within the terms and conditions of this AGREEMENT), non-transferable license, without the right to sublicense, to use the LICENSED MARKS, LICENSED PACKAGING and BLENDING INGREDIENTS purchased in accordance with clause 11.1 upon and in connection with the manufacture, sale, promotion, marketing, advertisement, and distribution of the LICENSED PRODUCTS within the TERRITORY; provided, however, that [*].
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(b)
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The license granted to LICENSEE in clause 1.1(a) shall be exclusive in the EXCLUSIVE TERRITORY and shall be non-exclusive in the NON-EXCLUSIVE TERRITORY; provided, however, that LICENSOR reserves the right to revoke LICENSEE’s non-exclusive license in all or any portion of the NON-EXCLUSIVE TERRITORY in accordance with the following procedure: in the event that LICENSOR wishes to grant an exclusive license to any or all of the rights listed in clause 1.1(a) for all or any portion of the NON-EXCLUSIVE TERRITORY (the “TRANSFERRABLE TERRITORY”), LICENSOR shall give notice to LICENSEE and offer LICENSEE an opportunity to acquire such rights on terms substantially in accordance with this AGREEMENT and subject to mutual agreement by LICENSOR and LICENSEE on Minimum SALES VOLUMES and Minimum Royalties applicable to the TRANSFERRABLE TERRITORY. If (i) LICENSEE gives LICENSOR written notice of its desire to accept LICENSOR’s offer within ten (10) business days after receipt of such notice from LICENSOR and (ii) LICENSOR and LICENSEE reach agreement on Minimum SALES VOLUMES and Minimum Royalties applicable to the TRANSFERRABLE TERRITORY within forty-five (45) days after receipt of such notice from LICENSOR, LICENSOR shall have the option to amend this AGREEMENT for purposes of adding the TRANSFERRABLE TERRITORY to the EXCLUSIVE TERRITORY and specifying the applicable Minimum SALES VOLUMES and Minimum Royalties, and shall give LICENSEE prompt written notice of its decision whether to do so. If (x) LICENSEE does not give LICENSOR written notice of its desire to accept LICENSOR’s offer within ten (10) business days after receipt of such notice from LICENSOR, or (y) LICENSOR and LICENSEE, negotiating in good faith, do not reach agreement on Minimum SALES VOLUMES and Minimum Royalties applicable to the TRANSFERRABLE TERRITORY within forty-five (45) days after receipt of such notice from LICENSOR, or (z) LICENSOR and LICENSEE reach agreement on Minimum SALES VOLUMES and Minimum Royalties applicable to the TRANSFERRABLE TERRITORY within forty-five (45) days after receipt of such notice from LICENSOR, LICENSOR shall have the option to grant to a third party an exclusive license of the scope offered to LICENSEE in the TRANSFRERRABLE TERRITORY subject to Minimum SALES VOLUMES and Minimum Royalties that are more favorable to LICENSOR than the most favorable Minimum SALES VOLUMES and Minimum Royalties offered by LICENSEE for the TRANSFERRABLE TERRITORY, and upon the grant of such exclusive license to such third party, LICENSEE’s non-exclusive license in the TRANSFERRABLE TERRITORY shall automatically terminate, the TRANSFERRABLE TERRITORY shall no longer be included in the NON-EXCLUSIVE TERRITORY and LICENSEE shall thereupon cease exercising any of the rights granted in clause 1.1(a) in the TRANSFERRABLE TERRITORY.
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(c)
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All rights not specifically granted to LICENSEE herein are reserved by LICENSOR. In particular, LICENSOR retains the right to, or to grant licenses to third parties to, manufacture, sell, promote, market, advertise, distribute and to use the LICENSED MARKS and the LICENSED PACKAGING (i) on products or services other than the LICENSED PRODUCTS in the EXCLUSIVE TERRITORY, including but not limited to beverages that comprise the juice of a single fruit in containers other than APPROVED CONTAINERS and other beverages similar to APPROVED BEVERAGES in containers other than APPROVED CONTAINERS (as long as the ingredient proportions for any such beverages are not precisely identical to PROPORTION INFORMATION for the corresponding APPROVED BEVERAGE), baby food products, toddler food products and smoothie products, and (ii) on any products (including but not limited to any product that comprises the juice of a single fruit, and any other product similar to an APPROVED BEVERAGE as long as the ingredient proportions for such product are not precisely identical to PROPORTION INFORMATION for the corresponding APPROVED BEVERAGE, in any container, regardless of whether it is an APPROVED CONTAINER) outside the EXCLUSIVE TERRITORY; provided however, that LICENSOR’s right, if any, to authorize any third party to use any APPROVED CONTAINERS that are proprietary to LICENSEE shall be subject to the provisions of clause 8.3. Further, notwithstanding the otherwise exclusive nature of the license in the EXCLUSIVE TERRITORY, LICENSOR reserves the right to use the LICENSED MARKS to advertise the LICENSED PRODUCTS as further set out in clause 7.7 below.
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(d)
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For the avoidance of doubt, until 30th September 2013, the LICENSOR retains the exclusive right to, or to grant licenses to, third parties to manufacture, sell, promote, market, advertise, distribute and use the LICENSED MARKS and the LICENSED PACKAGING on beverages that comprise the juice of a single fruit and any other beverage (including but not limited to any beverage that is similar to an APPROVED BEVERAGE, as long as the ingredient proportions for such beverage are not precisely identical to PROPORTION INFORMATION for such APPROVED BEVERAGE) in gable top containers and dispenser units in the TERRITORY.
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(e)
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BLENDING INGREDIENT inventory and an explanation of any significant discrepancy between BLENDING INGREDIENT used and LICENSED PRODUCTS in inventory and LICENSED PRODUCTS sold, if applicable.
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(a)
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Semiannual Payment Requirements
. Contemporaneously with each Semiannual Statement, LICENSEE shall remit, by wire transfer to a bank account identified by LICENSOR to LICENSEE in writing, payment of the greater of (i) the Earned Royalties earned during that CONTRACT PERIOD or (ii) the Minimum Royalty for the EXCLUSIVE TERRITORY, and Earned Royalties for SALES in the NON-EXCLUSIVE TERRITORY and SALES within the EXCLUSIVE TERRITORY for resale in or reshipment to the NON-EXCLUSIVE TERRITORY, all of the foregoing as payable for that CONTRACT PERIOD in accordance with
Schedule A
.
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(b)
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Form of all Payments
. All payments of any sums due to LICENSOR under this AGREEMENT shall be made payable to LICENSOR and shall be in United States currency. All payments shall be free of any withholding taxes. In the event that LICENSEE is prohibited by law from making payments hereunder free of such withholdings, it shall pay such additional amounts necessary in order that the actual amount received after such withholding shall equal the amount that would have been received if such withholding were not required. LICENSEE shall have no right to set off any money owed to LICENSEE by LICENSOR against any money owed by LICENSEE to LICENSOR hereunder.
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(c)
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Late Payments
. If any payments due are not made when required in accordance with the terms of this AGREEMENT, LICENSEE shall pay interest on the amount owed at a rate of twelve percent (12%) per annum (or the maximum rate allowed by law if lower) pro rata from the date such amount was due until it is paid. If it becomes necessary for LICENSOR to undertake legal action to collect any such payments, LICENSEE shall pay LICENSOR's reasonable legal fees and costs of the action and related negotiations if the legal action undertaken results in a determination that the payments were due.
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(a)
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Inspection
. LICENSEE shall keep complete, accurate, and verifiable records at the OWNED FACILITY and/or its principal place of business showing all transactions relating to exercise of the licensed rights herein granted, with appropriate offsite backups and disaster and data recovery systems in place. Such books and records shall include numerically sequenced invoices. LICENSOR or its duly authorized representatives shall have the right, upon reasonable notice and during normal business hours, to inspect LICENSEE's books and records and all other documents and material (physical and electronic) in the possession of or under the control of LICENSEE in order to verify any matter under or in connection with this AGREEMENT (but, for the avoidance of doubt, for no other purpose) including but not limited to the accuracy of LICENSEE's Monthly Update Statements and Semiannual Statements.
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(b)
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Discrepancy
. In the event that such inspection reveals an underpayment by LICENSEE, LICENSEE shall immediately remit payment to LICENSOR in the amount of the underpayment plus interest at the rate of twelve percent (12%) per annum (or the maximum rate allowed by law if lower) pro rata from the date such payment was due until the date when such payment is actually made. In the event that such underpayment is greater than five percent (5%) of the Earned Royalties and/or Minimum Royalties owed to LICENSOR for any audited period, then LICENSEE shall bear all reasonable expenses related to such inspection, including attorney’s fees if applicable.
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(c)
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Maintenance After Expiration
. All books and records relative to LICENSEE’s obligations under this AGREEMENT shall be maintained and kept accessible and available to LICENSOR for inspection for at least five (5) years after final termination or expiration of this AGREEMENT.
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(a)
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The OWNED FACILITY shall [*] and shall have a capacity sufficient for LICENSEE to perform its obligations under this AGREEMENT.
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(b)
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Within eighteen (18) months after the end of the first CONTRACT PERIOD for which LICENSEE’S Minimum SALES VOLUME is [*] (as identified in the table under the heading “MINIMUM SALES VOLUMES” in
Schedule A
), LICENSEE shall have (a) completed construction of the OWNED FACILITY in accordance with standards and controls provided to LICENSEE by LICENSOR in writing and received written verification from LICENSOR that the OWNED FACILITY satisfies such standards and controls, and (b) conducted a Food Safety Audit of the OWNED FACILITY in accordance with clause 12.15(b), (c) delivered to LICENSOR a copy of the inspectors’ complete Food Safety Audit report specifying that the OWNED FACILITY has received a passing grade and (d) completed all corrective actions specified in the Food Safety Audit report to LICENSOR’s reasonable satisfaction. Time is of the essence with respect to the obligations in this clause 6.1(b).
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(c)
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At all times after receipt of written verification from LICENSOR that the OWNED FACILITY satisfies written standards and controls provided to LICENSEE by LICENSOR and successful completion of the initial Food Safety Audit of the OWNED FACILITY, LICENSEE undertakes and agrees with LICENSOR that all LICENSED PRODUCTS shall be manufactured primarily in the OWNED FACILITY by LICENSEE, and LICENSEE may use the THIRD-PARTY FACILITY as a backup manufacturing facility for the LICENSED PRODUCTS; however LICENSEE may not manufacture any LICENSED PRODUCTS at any other location nor have LICENSED PRODUCTS manufactured by any other party on behalf of LICENSEE. LICENSEE retains the rights to co-packing and use of the OWNED FACILITY, at any time that all LICENSED PRODUCTS are manufactured at the OWNED FACILITY, for retail private label beverage products that (i) do not contain fruit juice, (ii) do not otherwise compete with any LICENSED PRODUCT, (iii) do not bear any LICENSED MARK, (iv) do not contain any BLENDING INGREDIENTS, (v) are not manufactured in accordance with any RECIPE INFORMATION and (vi) are not in LICENSED PACKAGING.
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7.
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DEVELOPING AND SATISFYING DEMAND FOR LICENSED PRODUCTS; ADVERTISING
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(a)
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to prepare, package, market, distribute and sell each of the LICENSED PRODUCTS in accordance with this AGREEMENT and to endeavor to meet the demand for each of the LICENSED PRODUCTS within the TERRITORY; and
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(b)
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to use commercially reasonable efforts to develop and exploit fully the potential of the business of manufacturing, preparing, packaging, marketing and distributing each of the LICENSED PRODUCTS throughout the TERRITORY by creating, stimulating and maintaining demand for each of the LICENSED PRODUCTS; and
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(c)
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that it shall be responsible for all expenses required for the organization, installation, operation, maintenance and replacement within the TERRITORY of the OWNED FACILITY and all other manufacturing, warehousing, marketing, distribution, delivery, transportation and other facilities and equipment as shall be necessary to implement this AGREEMENT; and
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(d)
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to provide competent and well-trained management, and to recruit, train, maintain and direct all personnel required, sufficient in every respect, to perform all of the obligations of LICENSEE under this AGREEMENT.
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(a)
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LICENSEE warrants that the LICENSED PRODUCTS and all DISTRIBUTION MATERIALS shall meet the requirements of the RECIPE INFORMATION, including the LICENSOR quality and standard requirements and specifications set forth, and to be set forth, in
Exhibit 1
. LICENSEE shall submit to LICENSOR for WRITTEN APPROVAL (a) RECIPE INFORMATION for each of the initial LICENSED PRODUCTS not later than October 1, 2012 for WRITTEN APPROVAL, (b) RECIPE INFORMATION for any subsequent LICENSED PRODUCT at the time LICENSEE proposes such LICENSED PRODUCT, and any additional information related to the RECIPE INFORMATION that LICENSOR may request for any LICENSED PRODUCT promptly upon such request. Upon receipt of WRITTEN APPROVAL of RECIPE INFORMATION for a LICENSED PRODUCT, such RECIPE INFORMATION and any additional related information that LICENSEE may submit in response to a LICENSOR request shall be deemed to be set forth in
Exhibit I
and incorporated herein by reference. LICENSEE shall not offer for sale, advertise, promote, distribute, or use for any purpose any LICENSED PRODUCTS (i) before LICENSEE has received WRITTEN APPROVAL for the RECIPE INFORMATION for such LICENSED PRODUCT, or (ii) that are damaged, defective or seconds, or (iii) that have exceeded their "sell by" or other expiry date, or (iv) that otherwise fail to meet the requirements of the RECIPE INFORMATION deemed to be set forth in
Exhibit I
, or (v) that deviate in any respect from applicable LICENSED PRODUCT samples for which LICENSEE has received WRITTEN APPROVAL in accordance with clause 12.2. LICENSOR may amend, supplement or replace the LICENSOR quality and standard requirements and specifications set forth, and to be set forth, in
Exhibit I
at any time by giving six (6) months'
written notice to LICENSEE, or any shorter notice that may be required by any laws or regulations applicable in any part of the TERRITORY.
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(b)
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LICENSEE may propose changes to any of the LICENSOR quality and standard requirements and specifications listed in
Exhibit I
, the RECIPE INFORMATION, the BLENDING AGREEMENTS, the APPROVED CONTAINERS or the LICENSED PACKAGING. LICENSOR shall be entitled to request any additional information about a proposed change, including samples and test results related to any proposed change to the RECIPE INFORMATION or the BLENDING INGREDIENTS. LICENSOR will give due consideration to such change proposed by LICENSEE but LICENSOR shall retain the exclusive right to approve or disapprove a proposed change, and LICENSEE shall not implement any proposed change without WRITTEN APPROVAL.
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(a)
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Prior to manufacturing any LICENSED PRODUCTS at a THIRD-PARTY FACILITY or any ancillary facility, LICENSEE shall, at its own expense, (i) engage a third-party inspector that is accredited by an accrediting body reasonably acceptable to LICENSOR to complete a food safety audit at such THIRD-PARTY FACILITY and any ancillary facility at which manufacturing of the LICENSED PRODUCTS is conducted to verify compliance with current good manufacturing practices as required by the FDA, the Hazard Analysis and Critical Control Point regulations and principles as set forth by the FDA and the United States Department of Agriculture and all other applicable food and safety laws, regulations, statutes, ordinances, principles and codes of best practice from time to time in existence in the TERRITORY that are applicable to manufacture of the LICENSED PRODUCTS (a “Food Safety Audit”), (ii) deliver to LICENSOR a copy of the inspectors’ complete Food Safety Audit report specifying that such THIRD-PARTY FACILITY and any ancillary facility have received passing grades, and (iii) complete all corrective actions specified in the Food Safety Audit report to LICENSOR’s reasonable satisfaction. Thereafter LICENSEE shall have a Food Safety Audit conducted at such THIRD-PARTY FACILITY and any ancillary facility at which manufacturing of the LICENSED PRODUCTS is conducted each year during the remainder of the TERM in sufficient time to deliver to LICENSOR a copy of the inspectors’ complete Food Safety Audit report specifying that such THIRD-PARTY FACILITY and any ancillary facility have received passing grades and to complete all corrective actions specified in the Food Safety Audit report to LICENSOR’s reasonable satisfaction, in each case not later than the date during such year which is the anniversary date of the first Safety Audit Report that was delivered to LICENSOR in accordance herewith.
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(b)
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Prior to manufacturing any LICENSED PRODUCTS at the OWNED FACILITY, LICENSEE shall, at its own expense, (i) engage a third-party inspector that is accredited by an accrediting body reasonably acceptable to LICENSOR to complete a Food Safety Audit at the OWNED FACILITY and any ancillary facility at which manufacturing of the LICENSED PRODUCTS is conducted, deliver to LICENSOR a copy of the inspectors’ complete Food Safety Audit report specifying that the OWNED FACILITY and any ancillary agreement have received passing grades, and (iii) complete all corrective actions specified in the Food Safety Audit report to LICENSOR’s reasonable satisfaction. Thereafter LICENSEE shall have a Food Safety Audit conducted at the OWNED FACILITY and any ancillary facility at which manufacturing of the LICENSED PRODUCTS is conducted each year during the remainder of the TERM in sufficient time to deliver to LICENSOR a copy of the inspectors’ complete Food Safety Audit report specifying that the OWNED FACILITY and any ancillary facility have received passing grades and to complete all corrective actions specified in the Food Safety Audit report to LICENSOR’s reasonable satisfaction, in each case not later than the date during such year which is the anniversary date of the first Safety Audit Report that was delivered to LICENSOR in accordance herewith.
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(c)
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In addition to the foregoing subclauses (a) and (b), if no LICENSED PRODUCTS are manufactured at the OWNED FACILITY, any THIRD-PARTY FACILITY or any ancillary facility for a period of one hundred eighty (180) consecutive days, LICENSEE shall, at its own expense, engage a third-party inspector that is accredited by an accrediting body reasonably acceptable to LICENSOR to complete a Food Safety Audit at such facility, deliver to LICENSOR a copy of the inspectors’ complete Food Safety Audit report for such FACILITY specifying that such FACILITY has received a passing grade, and complete all corrective actions specified in the Food Safety Audit to LICENSOR’s reasonable satisfaction before manufacturing of any LICENSED PRODUCTS is resumed at such FACILITY.
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(d)
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Time is of the essence with respect to the obligations in this clause 12.15.
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(a)
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manufactures, sells, promotes, distributes or uses, in any way, any LICENSED PRODUCT, LICENSED MARK or DISTRIBUTION MATERIALS without having the prior WRITTEN APPROVAL of LICENSOR or continues to manufacture, sell, promote, distribute or use, in any way, any LICENSED PRODUCT after receipt of written notice from LICENSOR disapproving or rescinding approval of the same; or
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(b)
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any LICENSED PRODUCT is recalled or withdrawn for any reason in accordance with clause 12.11 and, following such recall or withdrawal, LICENSEE fails or refuses to correct the condition or defect which caused the recall or withdrawal; or
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(c)
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becomes insolvent, makes a general assignment for the benefit of its creditors or an arrangement pursuant to any insolvency law, files a petition for insolvency, discontinues all or a significant portion of its business, or has a receiver, liquidator or administrator appointed over any part of its business or assets (or an equivalent process to any of the foregoing occurs in any jurisdiction); or
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(d)
|
breaches any of the conditions or provisions of this AGREEMENT; or
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(e)
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breaches any of the material conditions or provisions of any contract or agreement between LICENSEE and LICENSOR or any affiliate of LICENSOR, which has been entered into by the parties thereto pursuant to or in connection with this AGREEMENT; or
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(f)
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breaches any of the conditions or provisions of this AGREEMENT, which LICENSEE has previously breached; or
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(g)
|
undergoes an unapproved change in majority ownership or control of any interest in LICENSEE, directly or indirectly, by a competitor or any affiliate of any competitor of LICENSOR, or any of LICENSOR’s affiliates, or LICENSEE or becomes otherwise affiliated, directly or indirectly, with any competitor of LICENSOR or any of LICENSOR's affiliates, without LICENSOR's WRITTEN APPROVAL. LICENSEE, upon becoming aware of such unapproved change in control or ownership, shall be obliged to inform LICENSOR of any such potential, planned change of its ownership or control as soon as practicable in order that LICENSOR's prior consent may be sought. For the purposes of this clause:
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(i)
|
the power (whether directly or indirectly and whether by the ownership of share capital, the possession of voting power, contract or otherwise) to appoint and/or remove all or such of the members of the board of directors or other governing body of an entity as are able to cast the majority of the votes capable of being cast by the members of that board or body on all, or substantially all, matters, or otherwise to control or have the power to control the policies and affairs of that entity; and/or
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(ii)
|
the holding and/or possession of the beneficial interest in and/or the ability to exercise the voting rights applicable to shares or other securities in any entity (whether directly or indirectly) which confer in aggregate on the holders thereof 50% or more of the total voting rights exercisable at general meetings of that entity on all, or substantially all, matters; and
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(h)
|
fails to pay any royalties due to LICENSOR in accordance with clause 5.4 within ten (10) BUSINESS DAYs of the due dates in accordance with the terms of this AGREEMENT; or
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(i)
|
fails to perform the covenant set forth in clause 7.3 for
any two (2) consecutive CONTRACT PERIODS
set forth in
Schedule A
; or
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(j)
|
fails to pay, or to reimburse LICENSOR promptly on demand in respect of (as the case may be), any invoice payable to any third party in respect of sampling, testing or any other amount described in clause 12.2, clause 12.3 or clause 12.10 of this AGREEMENT within ten (10) BUSINESS DAYs of the due date for payment thereof; or
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(k)
|
assigns or attempts to assign any interest in all or part of this AGREEMENT, without the prior written consent of LICENSOR in accordance with clause 25.1. However, this clause will not apply in case of assignment to affiliates; or
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(l)
|
in respect of the LICENSOR's trademarks either within or outside of the TERRITORY (including but not limited to any or all of the LICENSED MARKS):
|
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(i)
|
commences proceedings in which the ownership, validity or registration of any of such marks is called into question;
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(ii)
(iii)
|
does anything to support an application to remove any of such marks from the register for trademarks for the TERRITORY;
does anything to restrict the registration of such marks; or
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(iv)
|
does anything which might prejudice the right or title of LICENSOR to such marks; or
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(m)
|
in respect of the LICENSED MARKS:
|
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(i)
|
applies to register any trademark, service mark or design identical to or confusingly similar to any of the LICENSED MARKS or LICENSED PACKAGING;
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(ii)
|
adopts or uses any trademark, service mark or design identical to or confusingly similar to any of the LICENSED MARKS or LICENSED PACKAGING; or
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(iii)
|
assists any third party to use or apply to register any trademark, service mark or design identical to or confusingly similar to any of the LICENSED MARKS or LICENSED PACKAGING.
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(a)
|
(without prejudice to the right to declare a Force Majeure Event in respect of the following in accordance with clause 24.2) in LICENSOR's sole discretion:
|
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(i)
|
any material provision, or the performance of any material provision, of this AGREEMENT ceases to be or potentially ceases to be in conformity with the laws or regulations from time to time of the State of North Carolina, the United States of America or any other laws or regulations of any jurisdiction that apply from time to time to the provisions of, or to the performance of, this AGREEMENT; or
|
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(ii)
|
any material authorization, approval, permit or license required by LICENSEE from time to time to perform its obligations under this AGREEMENT is revoked, suspended, terminated or cancelled; or
|
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(b)
|
in LICENSOR's sole discretion, any circumstance exists (whether under the control of LICENSEE or otherwise, and including matters and factors external to this AGREEMENT) by reason of which, in LICENSOR's sole discretion, the continued existence or further performance of this AGREEMENT may cause prejudice or damage to the goodwill or reputation of LICENSOR, or any of LICENSOR's affiliates which are under the control of, or under common control with, the LICENSOR (as "control" is defined in clause 16.2(g) above), or any of the LICENSED MARKS. If and to the extent that such circumstance is, in LICENSOR's sole discretion, within the control of LICENSEE and is capable of cure by LICENSEE, LICENSOR shall first give written notice to LICENSEE requiring cure and specifying a reasonable time for such cure, but shall be entitled to terminate this AGREEMENT immediately on the expiry of such period if the circumstance has not been cured to LICENSOR's satisfaction at that time. If such circumstance is not, in LICENSOR's sole discretion, within the control of LICENSEE, LICENSOR may terminate this AGREEMENT in accordance with this clause without delay.
|
|
(a)
|
all outstanding sums due and owing from LICENSEE to LICENSOR shall immediately become due and payable; and
|
|
(b)
|
LICENSEE shall immediately discontinue the manufacture, sale, and distribution of all LICENSED PRODUCTS and the use of the LICENSED MARKS and DISTRIBUTION MATERIALS, and shall not purchase any further BLENDING INGREDIENTS, and
|
|
(c)
|
at the direction of LICENSOR and at LICENSEE's expense, LICENSEE shall destroy or ship to such place as LICENSOR may nominate all existing inventory of LICENSED PRODUCTS and BLENDING INGREDIENTS, and shall have no right of sell-off except as provided in clause 16.9 below;
|
|
(d)
|
if requested by LICENSOR, LICENSEE shall execute an assignment of any and all goodwill as may have accrued to LICENSEE by reason of the use of the LICENSED MARKS and by LICENSEE being connected in the course of trade therewith and all such rights (if any) as may have accrued to LICENSEE in relation to the LICENSED MARKS by reason of the use thereof; and
|
|
(e)
|
LICENSOR shall return all PROPORTION INFORMATION to LICENSEE.
|
|
(a)
|
all outstanding sums due and owing from LICENSEE to LICENSOR shall immediately become due and payable; and
|
|
(b)
|
LICENSEE shall immediately discontinue the manufacture, sale and distribution of all LICENSED PRODUCTS and the use of the LICENSED MARKS and DISTRIBUTION MATERIALS, and shall not purchase any further BLENDING INGREDIENTS;
|
|
(c)
|
if requested by LICENSOR, LICENSEE shall execute an assignment of any and all goodwill as may have accrued to LICENSEE by reason of the use of the LICENSED MARKS and by LICENSEE being connected in the course of trade therewith and all such rights (if any) as may have accrued to LICENSEE in relation to the LICENSED MARKS by reason of the use thereof; and
|
|
(e)
|
LICENSOR shall return all PROPORTION INFORMATION to LICENSEE.
|
|
(iii)
|
termination of this AGREEMENT by LICENSOR pursuant to clauses 16.5 or 16.6 only,
|
|
(b)
|
All SALES under this clause 16.9 shall:
|
|
(i)
|
obligate LICENSEE to pay Earned Royalties as if such SALES were at the previous market price for such LICENSED PRODUCTS; and
|
|
(ii)
|
require the payment of Earned Royalties as provided in this AGREEMENT; and
|
|
(iii)
|
otherwise be in compliance with all other relevant provisions of this AGREEMENT.
|
|
(c)
|
LICENSEE's right to sell off pursuant to this clause 16.9 is further subject to the conditions that, within thirty (30) days after expiration or termination, LICENSEE will:
|
|
(i)
|
pay to LICENSOR all Earned Royalties, all amounts under clause 12.2, clause 12.3 and clause 12.10 hereof, and all amounts payable in accordance with the Supply Terms, accrued or due at the time of expiration or termination; and
|
|
(ii)
|
deliver to LICENSOR a report of SALES up to the time of expiration or termination; and
|
|
(iii)
|
provide LICENSOR with an inventory of unsold LICENSED PRODUCTS and allow LICENSOR at its option to conduct a physical inventory to verify the statement.
|
|
(a)
|
is known to the public at the time of its disclosure, or becomes known to the public after the disclosure through no fault of the Receiving Party; or
|
|
(b)
|
the Receiving Party can show was in its possession after the time of the disclosure, from a third party not under an obligation of secrecy to the Disclosing Party; or
|
|
(c)
|
the Receiving Party can show was developed by, or for, the Receiving Party independent of the disclosure by the Disclosing Party; or
|
|
(d)
|
is necessarily disclosed to a third party pursuant to the commercial sale of the LICENSED PRODUCT by either Party; or
|
|
(e)
|
is required to be disclosed by law, regulation or the order of request of any court or regulatory or supervisory authority with competent jurisdiction or the rules of any stock exchange with which a Party is bound to comply.
|
|
(a)
|
Subject to Section 18.2(c), all PROPORTION INFORMATION shall, notwithstanding clause 18.1, be maintained in confidence by LICENSOR and shall not be disclosed to any third party.
|
|
(b)
|
Subject to Section 18.2(c), LICENSOR covenants and agrees that it shall not,
directly or indirectly, manufacture any beverage containing ingredient proportions that are precisely identical to any PROPORTION INFORMATION and, further, that it shall not sell, promote, market, advertise or distribute any such beverage
.
|
|
(c)
|
Nothing in this Section 18.2 or elsewhere in this AGREEMENT is intended to or shall prohibit LICENSOR from manufacturing, selling, promoting, marketing, advertising or distributing (i) any beverage with ingredient proportions that are precisely identical to the PROPORTION INFORMATION for any APPROVED BEVERAGE if and as long as LICENSOR can demonstrate by documentary evidence that such ingredient proportions were in LICENSOR’S possession prior to receipt of the applicable PROPORTION INFORMATION from LICENSEE and all quantities of such beverage sold in the EXCLUSIVE TERRITORY during the TERM are in containers other than APPROVED CONTAINERS, (ii) any beverage that comprises juice of a single fruit, if and as long as all quantities of such beverage sold in the EXCLUSIVE TERRITORY during the TERM are in containers other than APPROVED CONTAINERS, (iii) any beverage similar to an APPROVED BEVERAGE that contains ingredient proportions that are not precisely identical to the PROPORTION INFORMATION for such APPROVED BEVERAGE, if and as long as all quantities of such beverage sold in the EXCLUSIVE TERRITORY during the TERM are in containers other than APPROVED CONTAINERS, or (iv) any other product.
|
19.
|
LICENSOR'S RIGHT OF FIRST REFUSAL
|
|
(a)
|
manufacture, sell, and/or otherwise distribute or become interested in or engaged in, or invest in or act as an agent or consultant for any person or entity that manufactures, sells and/or otherwise distributes, any beverage products that contain fruit juice in any part of the TERRITORY, or
|
|
(b)
|
solicit or divert or attempt to divert any business of LICENSOR whatsoever by soliciting or influencing or attempting to influence any customer, prospective customer with whom LICENSOR is in negotiations, other licensee or account of LICENSOR; or
|
|
(c)
|
engage in any business, company, partnership, joint venture, transaction, contract or other relationship or matter that relates in any way to the manufacture, distribution or sale of any beverage product in any part of the TERRITORY if such business, company, partnership, joint venture, transaction, contract or other relationship or matter involves any of the persons named in
Schedule E
or any other entity that engages in manufacturing, distribution or sale of products in the non-alcoholic beverage product category or market segment in any capacity whatsoever.
|
|
(a)
|
it owns or has acquired all rights, title and interest to any design that it claims can be used on any LICENSED PRODUCTS; that it has acquired any necessary authorization, license, or permission from any third party(ies) to manufacture, promote, market, distribute, and/or sell LICENSED PRODUCTS.
|
|
(b)
|
it owns or has acquired all rights, title and interest to any dispensing cap technology that it may incorporate into APPROVED CONTAINERS.
|
|
(c)
|
in connection with the sale, distribution or shipment of the LICENSED PRODUCTS, it shall not disclaim any warranty whether arising by operation of law or otherwise.
|
|
(d)
|
the LICENSED PRODUCTS shall be manufactured in strict accordance with the RECIPE INFORMATION and be at least of equal quality to all samples delivered to LICENSOR;
|
|
(e)
|
the LICENSED PRODUCTS shall not be adulterated, misbranded, falsely labeled or advertised or falsely invoiced within the meaning of any applicable local, state or federal law or regulation;
|
|
(f)
|
any color additive contained in any APPROVED BEVERAGE shall be from a batch certified in accordance with the applicable regulations promulgated under the United States Federal Food, Drug and Cosmetic Act;
|
|
(g)
|
the LICENSED PRODUCTS shall be properly labeled as to content;
|
|
(h)
|
the LICENSED PRODUCTS shall be delivered in good and undamaged condition and shall be merchantable and fit and safe for the purposes for which the same are intended to be used, including but not limited to consumer use;
|
|
(i)
|
all weights, measures, sizes, legends or descriptions printed, stamped, attached or otherwise indicated with regard to the LICENSED PRODUCTS shall be true and correct, and shall conform to and comply with all applicable laws, rules, regulations, ordinances, codes and/or standards of federal, state and local governments relating to the LICENSED PRODUCTS; and
|
|
(j)
|
the LICENSED PRODUCTS shall satisfy all other representations, warranties and guarantees provided by law, including but not limited to any warranties provided by the Uniform Commercial Code in the states in the TERRITORY.
|
|
(a)
|
any material provision, or the performance of any material provision, of this AGREEMENT ceases to be or potentially ceases to be in conformity with the laws or regulations of the State of North Carolina, any state in the TERRITORY, the United States of America or any other laws or regulations of any jurisdiction that apply from time to time to the provisions of, or to the performance of, to this AGREEMENT; or
|
|
(b)
|
any material authorization, approval, permit or license required by LICENSEE to perform its obligations under this AGREEMENT is revoked, suspended, terminated or cancelled,
|
|
(a)
|
as soon as reasonably practicable after the start of the Force Majeure Event the Affected Party notifies the other Parties in writing of the act, event or circumstance relied on, the date on which such act, event or circumstance commenced, the effect of the Force Majeure Event on the Affected Party's ability to perform its obligations under this AGREEMENT; and
|
|
(b)
|
the Affected Party makes all reasonable efforts to mitigate the effects of the Force Majeure Event on the performance of its obligations under this AGREEMENT and furnishes written reports every thirty (30) days to the other Party on its progress in doing so, and provides any information relating to the Force Majeure event and its effects that the other party may reasonably request.
|
|
(a)
|
The word "or" shall be interpreted to have both its conjunctive and disjunctive meaning whenever possible.
|
|
(b)
|
Reference to "includes" or "including" shall mean "includes without limitation" or "including without limitation".
|
|
(c)
|
The clause titles are intended solely for convenience and shall not affect the construction or interpretation of any of the provisions of this AGREEMENT.
|
|
(d)
|
No provision of this AGREEMENT shall be construed in favor of or against any Party on the ground that such Party or its counsel drafted the provision.
|
|
(e)
|
The language used herein, unless defined specifically, shall be construed according to its reasonable and customary meaning in the United States.
|
|
(f)
|
This AGREEMENT shall at all times be construed so as to carry out its stated purposes.
|
|
(g)
|
A reference to an enactment or statutory provision shall include a reference to any subordinate legislation made under the relevant enactment or statutory provision and is a reference to that enactment, statutory provision or subordinate legislation as from time to time amended, consolidated, modified, reenacted or replaced.
|
|
(h)
|
Words in the singular shall include the plural and vice versa.
|
|
(i)
|
A reference to a person shall include a reference to a firm, a body corporate, an unincorporated association, a partnership or to an individual's executors or administrators.
|
|
(j)
|
If a period of time is specified as from a given day, or from the day of an act or event, it shall be calculated exclusive of that day.
|
|
(k)
|
References to writing shall include any modes of reproducing words in any legible form and shall include e-mail except where expressly stated otherwise.
|
|
(l)
|
References to this AGREEMENT include this AGREEMENT as amended or supplemented in accordance with its terms.
|
|
(a)
|
any accrued rights of or obligations of each Party prior to such termination or expiration; or
|
|
(b)
|
any obligations or rights that are expressly stated to survive termination or expiration,
|
CHIQUITA BRANDS L.L.C.
|
MOJO ORGANICS, INC. | |||
By: | /s/ Brian W. Kocher | By: | /s/ Glenn Simpson | |
Name: | Brian W Kocher | Name: | Glenn Simpson | |
Title: | Senior VP & CFO | Title: | CEO & President | |
Date: | August 15, 2012 | Date: | August 15, 2012 |
1.
|
The LICENSED PRODUCTS are to be manufactured, packaged, stored, shipped, advertised, sold and distributed by LICENSEE or any third party permitted pursuant to Section 1.2 of this AGREEMENT in strict compliance with all applicable state, federal, local and provincial laws and regulations, and with the relevant International Labor Organization Conventions, the Universal Declaration of Human Rights and the United Nations Declaration on the Rights of the Child. LICENSEE or any third party may be required to show evidence of compliance with such laws if requested by LICENSOR.
|
2.
|
The LICENSED PRODUCTS shall be of high quality in design, material and workmanship and suitable for the purpose intended.
|
3.
|
The LICENSED PRODUCTS must be of such style and appearance as to have a positive impact on the reputation of LICENSOR. Words, shapes, or devices likely to have an adverse effect on the reputation of, or goodwill attaching to, the LICENSED PRODUCTS and/or the LICENSOR, including any that are obscene, blasphemous or scandalous, are unacceptable.
|
4.
|
When affixed to LICENSED PRODUCTS, the LICENSED MARKS shall be clear and legible without bleeding of line or color.
|
5.
|
No injurious, deleterious or toxic substances will be used in or on the LICENSED PRODUCTS.
|
6.
|
The LICENSED PRODUCTS will not cause harm when used as instructed and with ordinary care for their intended purpose.
|
7.
|
LICENSEE
shall comply with and satisfy all currently existing and future industry standards, decrees, governmental orders, law and regulations in force in all applicable areas of the
TERRITORY
relating to the manufacture, packaging, storage, use, shipping, advertising, sale and distribution of the
LICENSED PRODUCTS
,
including
, without limitation, the
Social Accountability International SA8000
standards.
LICENSEE
shall, and shall cause any third party permitted pursuant to Section 1.2 of this
AGREEMENT
to, manufacture, package, store, ship, advertise, sell and distribute the
LICENSED PRODUCTS
in strict compliance with all applicable state, federal, local and provincial laws and regulations, and with the relevant
International Labor Organization Conventions
, the Universal Declaration of Human Rights and the United Nations Declaration on the
Rights
of the
Child. LICENSEE
shall show evidence of certification with such laws if requested by
LICENSOR
.
|
8.
|
In accordance with clause 12.1(a), LICENSEE shall provide RECIPE INFORMATION to LICENSOR by October 1, 2012 for each of the initial LICENSED PRODUCTs and with any proposal that LICENSEE may submit for a subsequent LICENSED PRODUCT, and all of the same shall be subject to WRITTEN APPROVAL. Upon receipt of WRITTEN APPROVAL of the RECIPE INFORMATION for each LICENSED PRODUCT, and any additions to the RECIPE INFORMATION for a LICENSED PRODUCT that LICENSEE may submit to LICENSOR in response to a LICENSOR request, the same shall be deemed to be incorporated in this Exhibit I by reference.
|
(a)
|
Each LICENSED PRODUCT shall comply with provisions of the Federal Food, Drug and Cosmetic Act.
|
(b)
|
Each LICENSED PRODUCT shall be manufactured in accordance with FDA, United States Department of Agriculture and applicable state and local laws and requirements.
|
(c)
|
No LICENSED PRODUCT shall exceed the tolerance for pesticides and heavy metals established by the U.S. Environmental Protection Agency.
|
(d)
|
All LICENSED PRODUCTS shall be processed under a Hazard Analysis and Critical Control Points (HACCP) plan in accordance to the FDA juice safety regulations (21 CFR Part 120). Thermal process at the FACILITIES shall meet validated parameters to achieve a 5-log microbial reduction.
|
CONTRACT
PERIOD
|
MINIMUM
UNIT CASES
SOLD
|
CONTRACT
PERIOD
|
MINIMUM
UNIT CASES
SOLD
|
|
1
|
329,000*
|
8
|
1,428,105
|
|
2
|
329,000
|
9
|
1,927,942
|
|
3
|
703,500
|
10
|
1,927,942
|
|
4
|
703,500
|
11
|
2,602,721
|
|
5
|
1,020,075
|
12
|
2,602,721
|
|
6
|
1,020,075
|
13
|
3,513,674
|
|
7
|
1,428,105
|
14
|
3,513,674
|
*The Minimum SALES VOLUME for the first contract period shall be determined by
multiplying 329,000 by a fraction whose numerator is the number of calendar days in the first CONTRACT PERIOD and whose denominator is 180.
|
CONTRACT
PERIOD
|
MINIMUM
ROYALTIES
|
CONTRACT
PERIOD
|
MINIMUM
ROYALTIES
|
|
1
|
$184,240*
|
8
|
$1,092,370
|
|
2
|
$184,240
|
9
|
$1,518,941
|
|
3
|
$507,223
|
10
|
$1,518,941
|
|
4
|
$507,223
|
11
|
$2,112,087
|
|
5
|
$757,538
|
12
|
$2,112,087
|
|
6
|
$757,538
|
13
|
$2,936,857
|
|
7
|
$1,092,370
|
14
|
$2,936,857
|
*The Minimum Royalty for the first contract period shall be determined by
multiplying $184,240 by a fraction whose numerator is the number of calendar days in the first CONTRACT PERIOD and whose denominator is 180.
|
LICENSOR:
|
w/ copy to:
|
LICENSEE:
|
Chiquita Brands L.L.C.
250 East Fifth Street
Cincinnati, OH 45202
USA
Attn: Linda DeFrank
|
Chiquita Brands L.L.C.
550 South Caldwell St.
Charlotte, NC 28202
USA
Attn: James Thompson
|
Mojo Organics, Inc.
101 Hudson Street, 21st Floor
Jersey City, NJ 07302
USA
Attn: Glenn Simpson
|
CHIQUITA & MODERNIZED OVAL DESIGN
Black & White
U.S. Trademark Application No. 85/531,084
(Int'l Class: 32) Fruit juice
Filed: February 1, 2012
Color
U.S. Trademark Application No. 85/531,099
(Int'l Class: 32) Fruit juice
Filed: February 1, 2012
|
|
CHIQUITA
U.S. Trademark Registration No. 1,446,707
(Int'l Class: 32) Fruit juice
Renewed: July 7, 2007
U.S. Trademark Registration No. 1,991,773
(Int'l Class: 32) Flavored drinking water; soft drinks; fruit juices; and fruit drinks
Renewed: August 6, 2006
|
|
A.
|
any official or employee of any government, or any department, agency or instrumentality thereof,
|
|
B.
|
any political party or official thereof, or to any candidate for political office,
|
|
C.
|
any official or employee of any public international organization, or
|
|
D.
|
any person acting in an official capacity for on behalf of any of the foregoing,
|
1.
|
Monthly and year-to-date Actual SALES Report
|
2.
|
Consumer Inquiries
|
3.
|
Three Month Rolling Sales Forecast Report
|
4.
|
Three Month Rolling Forecast Blending Ingredient Report
|
|
Ø
|
A ninety (90) day rolling forecast of requirements for BLENDING INGREDIENT that will be purchased from LICENSOR by LICENSED PRODUCT in accordance with clause 11.3
|
5.
|
Any other information which could reasonably be considered as desirable for LICENSOR to receive or that LICENSOR may reasonably request
|
1.
|
CONTRACT PERIOD Total Gross and NET SALES Report
|
|
Ø
|
Total Gross SALES and NET SALES Report by LICENSED PRODUCT and package and a worked calculation including a narrative explanation of the difference between gross SALES and NET SALES
|
2.
|
CONTRACT PERIOD Earned Royalties Report (USD)
|
|
Ø
|
A worked calculation of
CONTRACT PERIOD
Earned Royalties
|
3.
|
CONTRACT PERIOD Total BLENDING INGREDIENT Report
|
|
Ø
|
BLENDING INGREDIENT Report by product indicating:
|
|
i.
|
The purchases during the CONTRACT PERIOD
|
|
ii.
|
Inventory for the CONTRACT PERIOD and
|
|
Ø
|
An explanation of any significant discrepancy between BLENDING INGREDIENTS purchased, BLENDING INGREDIENTS used, BLENDING INGREDIENTS in inventory and LICENSED PRODUCT sold, if applicable
|
4.
|
CONTRACT PERIOD Finished Goods Inventory Report
|
|
Ø
|
Finished Goods Inventory Report by LICENSED PRODUCT and package including manufacturing facility Finished Goods central warehouse and other LICENSEE warehouses as applicable
|
5.
|
CONTRACT PERIOD SALES and Marketing Activity Report
|
|
Ø
|
Sales and Marketing Activity Report including but not limited to the following information:
|
|
i.
|
Evidence of any expenditure towards the Minimum Advertising Requirement under clause 7.4 for the preceding CONTRACT PERIOD and an expenditure forecast for the following CONTRACT PERIOD
|
|
ii.
|
LICENSEE Market Activity Report detailing the sales and marketing activities (promotional, PR, merchandising, market development, equipment placement, etc.) executed for in the CONTRACT PERIOD including expenditures
|
|
iii.
|
LICENSEE Media and Communication Report (Above the Line Activities) including expenditures
|
Sales Contract #:
|
|||||
Buyer’s Ref.
|
Created
|
Revision
|
Revised
|
||