Exhibit 10.2
Execution Copy
LICENSE AGREEMENT
This License Agreement ("Agreement") is made effective as of this 31st day
of October, 2001, by and between Whole Foods Market IP, Inc., a Delaware
corporation ("Licensor"), and Hurry, Inc. (formerly known as Harry's Farmers
Market, Inc.), a Georgia corporation ("Licensee").
WHEREAS, an affiliate of Licensor has purchased certain assets of Licensee,
including intellectual property assets, as further described in that certain
Asset Purchase Agreement, dated as of August 9, 2001 (the "Purchase Agreement");
and
WHEREAS, the assets purchased by Licensor under the Purchase Agreement do
not include six small format "Harry's in a Hurry" retail food stores (the
"Excluded Stores"); and
WHEREAS, in order to operate, expand, sell, transfer or otherwise dispose
of the Excluded Stores, Licensee will require the use of the trademarks, service
marks, logos, copyrights, proprietary information and similar intellectual
property described on Schedule I hereto (collectively, the "Licensed Marks"),
all of which has been assigned by Licensor's affiliate to Licensor; and
WHEREAS, the Purchase Agreement contemplates that the parties will enter
into this Agreement as a condition precedent to the closing of the transactions
contemplated thereunder;
Now, therefore, in consideration of the mutual agreements herein contained,
it is agreed as follows:
1. SCOPE OF LICENSE
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1.1. Grant. Subject to Section 1.2, Licensor hereby grants to Licensee a
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fully paid, royalty free right and license to use the Licensed Marks throughout
the world in connection with (a) the advertising, promotion, franchising and
day-to-day operation of the Excluded Stores and any new retail locations
operated by Licensee or any sublicense or franchisee in the same or
substantially similar manner and format as the Excluded Stores (the "New
Stores", together with the Excluded Stores, the "Licensee Stores"), (b) services
utilizing the Licensed Marks and provided by Licensee in connection with the
operation of the Licensee Stores ("Services"), and (c) goods utilizing the
Licensed Marks and manufactured or sold by Licensee in connection with the
operation of the Licensee Stores ("Goods") (collectively, the "License").
1.2. Use by Licensor. Licensee understands and acknowledges that, pursuant
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to the Purchase Agreement, Licensor has purchased intellectual property assets
(such as the "Harry's Farmers Market" tradename) that are similar to the
Licensed Marks and intends to use such intellectual property assets in the
operation of Licensor's business. Licensor hereby represents that it will not
use the specific "Harry's in a Hurry" tradename in its business or on or in
connection with the operation of a retail food store located within one hundred
(100) miles of
any existing Licensee Store. Except as aforesaid, nothing herein is intended to
restrict in any manner the operation of Licensor's business.
1.3. Sublicensing and Assignment Prohibited.
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(a) Subject to paragraph 1.3(b) below, the License is personal to
Licensee, and Licensee shall have no right to assign the license granted
hereunder to any person or entity.
(b) Notwithstanding paragraph 1.3(a) above, the transfer of the License
in conjunction with the transfer of the Licensee Stores, all or
substantially all of assets of the Licensee Stores (or such of the Licensee
Stores which have not been, or not scheduled to be, closed), or of the
capital stock of Licensee shall not be deemed to be in violation of this
Section 1.3; provided, that the transferee of the License shall have agreed
to be bound by the terms and provisions of this Agreement.
2. LICENSEE OPERATIONS
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2.1. General. Licensee will conduct its operations of the Licensee Stores
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in a manner such that it will not detract from nor bring into disrepute the
Licensed Marks and the goodwill associated with the Licensed Marks. Except as
specifically provided herein, nothing in this Agreement or the License granted
herein shall be construed to limit the types of Goods and Services offered by
Licensee in connection with its operation of the Licensee Stores; provided,
however, Licensee's offering of Goods and Services not offered through the
Licensee Stores as of the date of this Agreement shall not materially breach the
terms of this Agreement.
2.2. No Relationship to Licensor's Business. Licensee shall not indicate to
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customers, vendors or other third parties that it is under common ownership or
operation with the business operated by Licensor. Further, Licensee will ensure
that Licensor does not become subject to any claims arising from Licensee's
operation of, and use of the Licensed Marks in, the Licensee Stores.
2.3. Product Quality. Licensee agrees that its Services and Goods shall be
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of such high standards and quality as to protect and enhance the prestige of the
Licensed Marks and the goodwill pertaining thereto; that such Services and Goods
shall be manufactured, packaged, offered, provided, performed, sold and
distributed in accordance with all applicable, federal, state and local laws and
regulations; and that the policy of performance of such Services and of
completion and delivery of such Goods by Licensee shall be one requiring high
standards and shall in no manner reflect adversely upon the goodwill of the
Licensed Marks. Licensor acknowledges that Licensee's current operation of the
Licensee Stores meets the requirements of this Section 2.3.
2.4. Quality Control. If Licensor determines in good faith that Licensee
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has failed to meet the quality control standards and procedures described in
Section 2.3, then Licensor shall
furnish Licensee written notice specifying in reasonable detail the respects in
which Licensee has failed, and if reasonably necessary, specifying steps to be
taken to cure the failure. Licensee shall, upon receipt of such notification
from Licensor, immediately commence, and thereafter diligently pursue, curing
any default with respect to the quality control standards and procedures and
shall achieve the cure within a reasonable time.
3. NAMES AND TRADEMARKS
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3.1. Permitted Use by Licensee. Licensee agrees to use the Licensed Marks
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strictly in accordance with the terms of this Agreement. Licensee further agrees
to comply with any reasonable requirements or instructions of Licensor (which
shall be no more onerous on Licensee than the business policies and practices
applicable to Licensor itself) regarding the use of the Licensed Marks which
Licensor reasonably and in good ▇▇▇▇▇ ▇▇▇▇▇ to be necessary to preserve its
proprietary interest therein or the goodwill associated therewith.
3.2. No Acquisition of Rights. Except as expressly provided by this
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Agreement, Licensee agrees it shall acquire no right, title or interest to the
Licensed Marks, or the goodwill of Licensor associated therewith and all
goodwill arising out of Licensee's use of the Licensed Marks will inure to the
benefit of Licensor. The aforesaid shall not derogate from any goodwill
developed or achieved by the Licensee on its own in the Licensee Stores.
3.3. Registration of Licensed Marks. Licensor makes no representation or
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warranty that the Licensed Marks are valid or validly registered in the United
States or any state thereof. Licensee agrees to assist Licensor, at Licensor's
sole cost and expense, to the extent reasonably necessary, in the procurement of
any protection or to protect any of Licensor's rights in and to the Licensed
Marks. At Licensor's expense and sole discretion, Licensor shall undertake to
register the Licensed Marks in any state or country where the Goods and Services
are sold or may be sold in the future or where such registration may provide
some benefit to Licensor; and Licensor shall not be liable hereunder for any
failure to so register, or renew the registration of, the Licensed Marks.
Licensee shall supply Licensor with such information as Licensor may reasonably
request to aid Licensor in the acquisition, maintenance and renewal of
applications and registrations of the Licensed Marks, or in furtherance of any
other purpose related to the acquisition, preservation or protection of the
Licensed Marks.
3.4. Policing of Licensed Marks. Licensee shall promptly give notice to
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Licensor in the event it becomes aware of any third party that is infringing,
misusing or otherwise violating any of the Licensed Marks or Licensor's rights
therein, or that Licensee believes is or may be infringing, diluting, or
otherwise derogating the Licensed Marks or Licensor's rights therein. Licensor
shall have the right (but not the obligation) to take whatever action it deems
appropriate, including the institution of any action or proceeding against such
third party or otherwise, to obtain a discontinuance of such use. If Licensor
exercises its right to take such action, Licensor shall pay its own expenses and
retain any costs or damages awarded to it therein. If Licensor elects in its
discretion not to proceed to take action against such third party, or fails to
take any action within 30 days of its receipt of Licensee's notice of such third
party's
conduct, then Licensee may, at its own expense, take whatever action Licensee,
in its sole discretion, deems to be necessary and appropriate, provided that
such action does not jeopardize the Licensed Marks or Licensor's rights therein.
Licensee and Licensor agree to cooperate with each other in all respects and to
provide each other with all assistance requested by the other with respect to
all such actions.
3.5. Infringement of Other Marks by Licensee. Licensee shall promptly
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notify Licensor in writing in the event that Licensee becomes aware of any
pending or threatened claim that use of the Licensed Marks by Licensee infringes
the rights of others, or of the institution of any action or proceeding against
Licensee or otherwise arising out of the use of the Licensed Marks by Licensee.
Licensor shall have the right (but not the obligation), upon written
notification to Licensee within 30 days of receipt of Licensee's notification to
Licensor of such infringement claim (unless a shorter time frame is required by
law), to take charge of the defense of any such claim, action or proceeding (and
of any negotiations for the settlement thereof). If Licensor declines, or fails
to respond within 30 days after receipt of notification from Licensee (or such
shorter time frame if required by law), to defend any such claim, action or
proceeding, Licensee may do so. Licensor and Licensee each shall pay their own
expenses and retain any costs or damages awarded to each in any such claim,
action or proceeding. Licensor shall not make any settlement of any such claim,
action or proceeding, brought against Licensee involving a monetary payment by
Licensee without the consent in writing by Licensee. Licensor shall not be
liable in any event to Licensee in respect of any damages assessed or asserted
against Licensee in, or any liability incurred by or imposed upon Licensee in
connection with, any such claim, action or proceeding. Licensor and Licensee
agree to cooperate with each other in all respects in any such claim, action or
proceeding.
4. RELATIONSHIP OF PARTIES
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4.1. Licensor/Licensee. The Licensee acknowledges that the only
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relationship established by this Agreement is that solely of licensor and
licensee, and the parties hereby confirm that this Agreement is not intended to
constitute and shall not be construed as constituting a partnership or joint
venture. Neither party shall be an agent of the other for any purpose
whatsoever. Neither party shall have any right or authority, either express,
implied, or apparent, to act on behalf of the other in any other manner
whatsoever, and shall not hold itself out as such or otherwise take action which
might tend to create an agency or partnership relationship between Licensor and
Licensee or any other relationship other than that established by this
Agreement. Licensee shall use its own name in obtaining or when executing
contracts or making purchases, so that the transaction shall clearly indicate
that Licensee is not acting for Licensor.
4.2. Licensee's Responsibilities. Licensee acknowledges that it is fully
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responsible for all the debts and obligations of the Licensee Stores and
Licensor shall not be liable for any of the debts or obligations of Licensee's
business. Licensor makes no representation as to the value of the Licensed
Marks.
5. TERM; TERMINATION. This Agreement shall commence on the date first set
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forth above and shall continue until a termination event occurs in accordance
with the following provisions:
5.1. Termination for Cause. Licensor and Licensee shall each have the right
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to terminate this Agreement upon notice in writing to the other party if such
other party defaults in the performance of any of the substantial provisions
made hereunder and, in the case of a default which can be remedied, such other
party shall not have either (i) remedied such default to the satisfaction of the
party not in default within 30 days after written demand by such party or (ii)
promptly after written demand by such party, commenced efforts to remedy such
default, continuously and diligently maintained such efforts, and remedied such
default to the satisfaction of such non-defaulting party as soon as practicable
but in no event later than 90 days after such demand by such non-defaulting
party.
5.2. Termination by Default Without Prejudice. Any termination pursuant to
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Section 5.1 above shall be without prejudice to any other rights or remedies
which Licensor or Licensee may have in respect to any default by the other
party. Waiver by Licensor or Licensee of any particular default by the other
party shall not affect or impair the non-defaulting party's right in respect to
any subsequent default of the same or a different kind; nor shall any delay or
omission of Licensor or Licensee to exercise any right arising from any default
affect or impair Licensor or Licensee's right as to the same or any future
default.
5.3. Surrender of License. Licensee may terminate this Agreement at any
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time upon 10 days prior written notice to Licensor. Upon the closure of all of
the Licensee Stores, Licensee shall be deemed to have terminated this Agreement.
Any termination of this Agreement pursuant to this Section 5.3 shall be without
liability to Licensor or Licensee, except with respect to any breach by either
party of the remaining terms of this Agreement.
5.4. Obligation of Licensee upon Termination. Upon the termination of this
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Agreement, Licensee shall immediately and permanently cease to use in any manner
whatsoever the Licensed Marks and all advertising materials, displays,
stationery, forms and other manifestations of the Licensed Marks.
6. GENERAL PROVISIONS
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6.1. Assignment by Licensee. Except as set forth in Section 1.3(b),unless
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the prior written consent of the Licensor is obtained, which consent shall not
be unreasonably withheld, conditioned or delayed, Licensee will not assign any
of its rights or obligations under this Agreement to any third party.
6.2. Notice. Any notice, demand or other communication required or
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permitted to be given by the terms of this Agreement to any parties shall be in
writing and be deemed sufficiently given if sent by telecopy to the addressee or
by any nationally recognized "next day" delivery service, in each case to the
notice addresses set forth in the Purchase Agreement. Any
such notice or other document shall be deemed to have been given to and received
by the party to whom it was sent on the first to occur of (i) the date of
confirmation of the receipt of such telecopy or (ii) the date of such delivery
by such courier service. The notice addresses may be changed from time to time
by notice in writing in accordance herewith.
6.3. Severability. If any provision of this Agreement is declared invalid
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for any reason, such invalidity shall apply to the extent of the prohibition
without in any way invalidating or affecting the remaining provisions of the
Agreement.
6.4. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Delaware, to the jurisdiction of which
the parties hereto agree to submit.
6.5. Entire Agreement. This Agreement contains the entire agreement between
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the parties hereto and there are no representations, inducements, promises,
agreements, arrangements, undertakings, oral or written, between the parties
hereto other than those set forth expressly herein or in any document referred
to herein or duly executed by both parties hereto.
6.6. Benefit. This Agreement shall inure to the benefit of and be binding
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upon the permitted successors and assigns of the parties hereto.
6.7 Confidentiality. Each party acknowledges that during the course of
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carrying out this Agreement, it may receive confidential and proprietary
information related to the other party's business, including, without
limitation, the Licensed Marks, as set forth on Schedule I ("Confidential
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Information"). Confidential Information includes any information, designs, data
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or know-how that a party has designated as proprietary and/or confidential or
that, by the nature of the circumstances surrounding the disclosure, ought to be
treated as proprietary and/or confidential; provided, however, that any
information which is otherwise in the public domain shall not be deemed
confidential. Each party acknowledges that such Confidential Information is the
sole and exclusive property of the other party and undertakes to retain in
confidence all Confidential Information. Each party's obligations under this
Section 6.7 shall survive expiration or termination of this Agreement and any
amendments thereto.
(Signatures on following page)
IN WITNESS WHEREOF, the parties have signed this Agreement the day and year
first above written.
Whole Foods Market IP, Inc.
By: /s/ ▇▇▇ Sud
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Name: ▇▇▇ Sud
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Title: VP
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Hurry, Inc.
By: /s/ ▇▇▇▇▇ ▇. Blazer
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Name: ▇▇▇▇▇ ▇. Blazer
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Title: President
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