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Exhibit No. 4
Form 10-SB
Transform Pack International, Inc.
LICENSE AGREEMENT
THIS AGREEXENT made the 29th day of December, 1997;
BETWEEN; TRANSFORM PACK INC,, a New Brunswick incorporated
company, with Head office at the City of Moncton, in the
County of Westmorland and Province of New Brunswick,
hereinafter called the "Grantor."
OF THE ONE PART,
AND; ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ RESTAURANT INC., a Michigan
corporation, hereinafter called the "Licensee"
OF THE OTHER PART.
WHEREAS the Grantor has evolved certain research,
development, production and distribution (marketing) of innovative
packaging technologies based upon various adhesive, spice, taste,
and aromatic formulae applied to diverse matrixes, which find
application in the food, pharmaceutical and chemical sectors and
the Grantor has also evolved certain research, development,
production and sale of innovative machinery and equipment relating
to the industrial production of the packaging technologies.
AND WHEREAS the Licensee has requested from the Grantor an
exclusive license to manufacture products under the license and
the Grantor has agreed to provide an exclusive license to the
Licensee upon the terms and conditions as hereinafter set out in
this Agreement.
NOW THEREFORE IN CONSIDERATION of the mutual covenants and
agreements herein contained, the parties covenant and agree with
each other as follows:
ARTICLE I INTERPRETATION
1.1. Definitions
1.1.1. In this Agreement the following expressions, words, terms
and phrases shall, unless the context otherwise indicates, have
the respective meanings indicated below:
"Adhesives" - has the meaning ascribed to it as set out in the
Canadian Patent Application entitled "Method and Material for
Extending The Shelf-Life of Fresh Foods" filed November 9, 1994,
as number 2135416.
"Affiliate" of a specific party means any other person or entity
that, directly or indirectly, controls or is controlled by or is
under common control with such specified party.
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"Agreement" means this Agreement, all Schedules and other
attachments to this Agreement and any documents incorporated
herein by reference and includes all amendments to this Agreement
agreed to in writing by the parties hereto.
"Documentation" shall mean those elements of Know-How and other
relevant information which are in writing or in the form of
drawings, diagrams, technical publications, manuals, designs or
otherwise in tangible form and which relate to the formulation,
ingredients, manufacture, or production of products or equipment.
"Improvements" shall mean all know-how or patents developed by or
for any party which serve to improve, correct, adjust, update or
change the formulation, ingredients, manufacture, or production of
products or equipment, as the case may be.
"Know-how" shall mean any and all proprietary information, trade
secrets and confidential information, including but not limited
to, the formulation, ingredients, manufacture, production, uses or
packaging of products, Trademarks, Tradenames, copyrights,
Patents, Patents Pending, inventions, intellectual property,
discoveries, improvements, modifications, enhancements, techniques
(manufacturing, production, packaging machinery and equipment or
otherwise), concepts, data, technical information and
specifications, diagrams, schematics, charts and lists which
relate to or are useful in connection with the formulation,
ingredients, manufacture, or production of products, whether or
not copyrightable or patentable.
"Licensed Technology" shall mean collectively the Patents and Know-
How existing as at the date of this Agreement and anytime
hereinafter acquired by the
Grantor during the term of this Agreement with free right of
disposal;
"Gross Revenues" shall mean in respect of any particular period
the revenue derived from the gross sales of products sold by the
Licensee to itself or others at market price in the Territory,
excluding returns, discounts, value added or sales taxes or other
similar taxes payable on the amounts so charged;
"Marketing Brochure" refers to the Marketing Brochure prepared
from time to time by or on behalf of the Grantor.
"Needs of the Market" means that, in respect of the Products, (i)
they have been approved by all health, safety and governmental
regulatory agencies and/or authorities and the Licensee has
received formal clearance and approval for the sale, distribution
and marketing of the Products in the Territory, and (ii) there
exists, in the Territory, a genuine, real and substantial consumer
demand for the Products to permit a viable and profitable business
operation for the Licensee.
"Patent" shall mean and include any patent or patent pending
presently owned or subsequently issued and owned by the Grantor or
in which the Grantor has rights which covers the know-how as
designated by Grantor in written notice to the Licensee.
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"Product or Products" shall mean the material utilizing the
Grantor's technology.
"Proprietary Information" shall mean the business concept,
recipes, food preparation methods, equipment, operating
techniques, marketing methods, financial information, demographic
and trade area information, prospective site locations, market
penetration techniques, plans, or schedules, customer profiles,
preferences, or statistics, menu breakdowns, itemized costs,
territories, and development plans, and all related trade secrets
or confidential or proprietary information, treated as such by the
Licensor, whether by course of conduct, by letter or report, or by
the use of any appropriate proprietary stamp or legend designating
such information or item to be confidential or proprietary, by any
communication to such effect made prior to or at the time any such
Proprietary Information is disclosed to the undersigned, or
otherwise.
"Proprietary Marinating spices and Flavours" shall mean customized
marinating spices and flavours specially created, formulated and
prepared at the request and instructions of a client of either the
Grantor or Licensee with respect to that client's private food
label or labels.
"Trade Marks" shall refer to those Trade Marks and include all
trade marks and trade names that may in the future be adopted by
the Grantor in connection with the Licensed Technology.
"Territory" means the geographic area consisting of the
Continental United States.
"Trade Secrets" means the formulae for Adhesives, including all
technical information, specifications, procedures, processes,
spices and flavours (including formulas), Trade Secrets, methods,
practices, techniques, information, bills of parts, diagrams,
drawings, specifications, blue-prints, lists of materials, or
secret processes or other confidential information, with respect
to the Canadian patent Application entitled "Method and Material
for Extending The Shelf-Life of Fresh Foods" filed November 9,
1994, as number 2135416.
1.2 Interpretation
1.2.1 Where the context permits, words importing the singular
number only shall include the plural and vice versa, words
importing any gender shall include all other genders and words
importing persons shall include corporations, and vice versa. The
headings or sub-headings of Article to this Agreement are inserted
for convenience of reference only and shall not in any way affect
the interpretation of this Agreement. References to any agreement
incorporated herein by reference or schedule shall include
reference to any amendment or modification of such agreement.
1.2.2 The terms "this Agreement", "hereof 11, "hereunder",
"herein", and similar expressions refer to this Agreement and not
to any particular Articles, Section, Sub-Section, Clause or
Paragraph of this Agreement, unless the context otherwise
requires, and include any agreements supplemental hereto.
1.2.3. Unless otherwise stated herein, all references to
currency in this Agreement are to lawful money of Canada.
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ARTICLE II - GRANT OF LICENSES
2.1 Grant of License
2.1.1. Exclusive Grant: The Grantor grants to the Licensee the
exclusive license to commercially manufacture the Licensed
Technology in the Territory, and without limiting the generality
of the foregoing, includes the license to:
(a) exclusively manufacture in the Territory the Products;
(b) exclusively distribute and sell to the list of licensee's
clients annexed hereto and marked "All which list can be modified
by mutual agreement;
(c) distribute, use and sell only throughout the Territory, the
Products, provided, however, that
the rights given in this paragraph (c) hereof are not exclusive;
2.1.2 The Licensee acknowledges that some or all of the Know-How
has been disclosed and delivered to the Licensee in confidence
prior to and in contemplation of the execution' of this Agreement.
The remainder of the Know-How shall be furnished to the Licensee
as soon as possible after the date of execution of this agreement,
provided, however, that trade secrets will not be disclosed or
delivered to the Licensee.
2.1.3 The Grantor may permit the Licensee, at its sole cost and
expense, to take all necessary steps to enforce any and all rights
granted under this Agreement, and in particular to take legal
proceedings against third parties to stop and prevent them from
infringing the Licensed Technology, including Trade Marks in the
Territory, subject to consultation with the Grantor, as to
anything respecting the validity of the Licensed Technology or
Trade Marks. Any and all damages or awards received by the
Licensee as a consequence of taking legal action against third
parties infringing the Licensed Technology in the Territory shall
be paid to the parties hereto, after the deduction of legal costs
and expenses, on a pro rata basis to the actual loss suffered by
each party, which will be determined mutually by the parties or,
failing same, pursuant to Article 16.2.
ARTICLE III - DELIURY OF EQUIPMENT
3.1 The parties agree that the Grantor will deliver the necessary
equipment to the Licensee in accordance with a separate agreement
which will spell out the equipment to be delivered, delivery time,
price to be paid for the equipment, and other related matters,
which agreement is to be incorporated into this agreement by
reference, once it has been executed by the parties.
ARTICLE IV - TERM
4.1 Term of Agreement
4.1.1. Subject to the provisions for early termination as set out
in this agreement, this agreement shall remain in full force and
effect for a period of FIVE (5) YEARS, and shall expire FIVE (5)
YEARS from the date of this Agreement.
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4.1.2. option for three (3) extended terms: The Licensee is
granted three (3) five (5) year options to extend the term of this
Agreement such that the total term of this agreement will not
exceed twenty (20) years, the extending term to begin upon the
expiration of the previous term of the Agreement and all the
terms, covenants and provisions of this Agreement shall apply to
the extended term with the exception, however, that the Licensee
shall not have any further option to extend further the term of
this Agreement upon the expiration of the third option. The option
may be exercised by the Licensee by giving 120 days, notice in
writing to the Grantor prior to the expiration of the term, and
the notice shall state the date to which the Licensee elects to
extend the Agreement.
ARTICLE V - OBLIGATIONS, WARRANTIES AND
COVENANTS OF THE GRANTOR
6.1 Obligations of the Grantor
6.1.1. Sale of Adhesives to the Licenses: Subject to the terms and
conditions of this Agreement, the Grantor agrees to sell (or cause
to be sold) to the Licensee all Adhesives used by the Licensee in
connection with the Licensed Technology. The cost of the adhesives
to the Licensee will initially be THIRTEEN DOLLARS AND SEVENTY-
FIVE CENTS ($13.75) per kilogram liquid matter, FOB Moncton, New
Brunswick, Canada. The parties further agree that the THIRTEEN
DOLLAR AND SEVENTY-FIVE CENTS ($13.75) cost for adhesives shall be
adjusted yearly by the then current rate of inflation as
determined by Statistics Canada and, provided further, that should
the raw material costs increase such that they exceed the rate of
inflation, the parties will determine the price by mutual
agreement or, failing such agreement, by arbitration pursuant to
Article 16.2.
6.1.2. Marketing Information: The Grantor shall provide to the
Licensee sample marketing information and standard information
such as installation instructions, technical data and manuals as
are necessary to promote the manufacture and sale of the Products,
and including trade advertisements and promotional literature, if
requested by the Licensee. The Licensee shall obtain the prior
written approval of the Grantor to use any such information.
6.1.3 Supply Technical Assistance:
(a) The Grantor agrees to use its best efforts to provide the
Licensee with technical assistance under this Agreement. The
Grantor does not assume any responsibility for any Products
produced and sold by the Licensee in the Territory and the
Licensee agrees to indemnify and save the Grantor harmless from
any claim arising from the Licensee's products.
(b) Following the initial installation and set up of equipment
and training of staff, which will be at the cost and expense of
the grantor, and upon the written request of the Licensee the
Grantor shall render Know-How, training and technical assistance
necessary to be provided by the Grantor under this agreement at
times and places mutually agreed upon and subject to the
availability of the Grantor's personnel and facilities. The
Licensee shall obtain any and all necessary visas, work permits,
residence permits or other permits or approvals necessary for the
entry into and working in the Territory of all technical personnel
who are to be provided by the Grantor under the terms of this
agreement.
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6.1.4 Quality Assurance Program: The Grantor and Licensee shall
work together jointly to establish a quality assurance program to
implement standards to ensure that the products is of a high
quality and shall meet or exceed all health and market
requirements in the Territory.
6.1.5 Supply Personnel: Upon the written request of the Licensee
during the terms of this agreement, the Grantor agrees to send at
such reasonable intervals and times as may be mutually acceptable
to the Grantor and the Licensee, at least one of the Grantor's
technical personnel and such additional technical personnel as may
be mutually agreed upon between the parties, to the Licensee's
plant in the Territory. The Grantor's employee or employees shall
render to the Licensee such technical assistance as may be
reasonably necessary to produce Products of a quality at least
equal to those being produced by the Grantor. Such assistance
shall include the training of a reasonable number of the
Licensee's personnel. The Licensee shall reimburse the Grantor for
the costs with respect to any employees sent to and maintained in
the Territory under this paragraph. Such reimbursement shall be
made by the Licensee in Canadian currency and shall be the total
of the following;
(a) the expenses of the personnel in traveling to and from the
Territory; and
(b) the ordinary living expenses of the personnel while in the
Territory; and
(c) salary of the personnel while in the Territory.
The Licensee further agrees to reimburse the Grantor f or the
aforementioned costs and expenses within thirty days following
receipt of the Grantor's invoice therefor.
6.2 Warranties and Covenants of the Grantor
6.2.1 The Grantor, makes no warranties or representations of any
kind, express or implied, save those provided herein and the
Grantor represents, warrants and, subject to the terms and
conditions of this Agreement, covenants as follows:
(a) It is a corporation duly incorporated and organized and
validly subsisting under the laws of the Province of New Brunswick
and has the corporate power to enter into this Agreement and to
perform its obligations hereunder.
(b) This Agreement has been duly authorized, executed and
delivered by it and is a legal, valid and binding obligation of
the Grantor, enforceable against it by the Licensee in accordance
with its terms.
(c) The execution and delivery of this Agreement by it and the
consummation of the obligations and events herein provided for
will not result in the breach or violation of any provision of, or
constitute a default under,, or conflict with or cause the
acceleration of any obligation of the Grantor under any contract
to which it is a party or by which it is bound, any provision of
the constating documents or by-laws or resolutions of the board of
directors or shareholders of the Grantor, any judgment, decree,
order or award of any court, governmental body or arbitrator
having
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jurisdiction over the Grantor, any license, permit, approval,
consent or authorization held by the Grantor or any applicable
law, statute, ordinance, regulation or rule.
(d) The Grantor warrants that there are no other existing
manufacturing licenses under the Know-How in the Territory and
covenants that no further disclosure to third parties will be made
by it of the manufacturing Know-How in the Territory while this
Agreement is in force.
ARTICLE VI - OBLIGATIONS, WARRANTIES AND
COVENANTS OF THE LICENSEE
7.1 Obligations Of the Licensee
7.1.1 Promote Sales: The Licensee shall use its best efforts to
promote the manufacture and sales of the Products in the
Territory, and conduct its business in a manner so as to enhance
the reputation of the Products, Know-How and Trade Marks.
7.1.2 Manufacture to Quality: The Licensee shall use its best
efforts to diligently manufacture the Products with the highest
standards having regard to the nature of the Products and the use
to which they are to be put.
7.1.3 Design for Production: Within 90 days after disclosure by
the Grantor of all Know-How pursuant to article 2.1.2 of this
Agreement, the Licensee shall provide the Grantor with an action
plan and critical path with respect to the manufacture of the
products.
7.1.4 Purchase Adhesives From the Grantor: The Licensee shall
purchase from the Grantor all Adhesives used in connection with
the Licensed Technology.
7.1.5 Supply Sample Products: The Licensee further agrees to
supply by air express to the Grantor a sample of the Products from
each batch produced, if so requested by the Grantor, during the
course of this Agreement and the Grantor agrees to utilize its
laboratory services to analyze these samples and to render
promptly, by air mail, telephone or telex or telecopy, at the
Grantor's discretion, a report to the Licensee concerning the
quality and shelf life of the Products, in order to maintain
continuous production of Products of uniformly high quality.
7.1.6 Promotion: The Licensee agrees diligently to promote the
sale of the Products under this Agreement and agrees to meet
production quotas, as mutually agreed to by the parties, or as
determined by the Grantor failing mutual agreement, and the
Licensee further agrees to promote the product at all necessary
trade shows, conventions and the like throughout the territory.
7.1.7 Compliance with Local Laws: The Licensee shall ensure that
any registration or notification required by the laws of the
Territory shall have been carried out. The Licensee shall comply
with all laws and regulations as may apply with the Territory, as
applicable to this agreement and all transactions and activities
contemplated or to be performed under this agreement.
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7.1.8 Location of Production Facilities: The Licensee must keep
the Grantor informed of the locations of its production facilities
in a timely manner and agrees that the Grantor may inspect such
facilities at all reasonable times.
7.1.9 Insurance: The Licensee shall be responsible for adequate
insurance coverage relating to the use of the Licensed Technology
by the Licensee in the Territory, with a minimum public liability
coverage of $5,000,000.00.
7.1.10 Taxes and Approvals: The Licensee shall be responsible for
all excise and import taxes, as well as all regulatory approvals
from appropriate governmental agencies in the Territory.
7.2 Warranties and Covenants of the Licensee
7.2.1 The Licensee represents, warrants and, subject to the terms
and conditions of this Agreement, covenants as follows:
(a) this Agreement has been duly authorized, executed and
delivered by it and is a legal, valid and binding obligation of
the Licensee, enforceable against it by the Grantor in accordance
with its terms;
(b) The execution and delivery of this Agreement by it and the
consummation of the obligations and events herein provided for
will not result in the breach or violation of any provision of, or
constitute a default under, or conflict with or cause the
acceleration of any obligation of the Licensee under any contract
to which it is a party or by which it is bound, any provision of
the constating documents or by-laws or resolutions of the board of
directors or shareholders of the Licensee, any judgment, decree,
order or award of any court, governmental body or arbitrator
having jurisdiction over the Licensee, any license, permit,
approval, consent or authorization held by the Grantor or ~any
applicable law, statute, ordinance, regulation or rule.
(c) Advertising: The Licensee covenants that it shall not
advertise the Products outside the Territory.
(d) Remain in Territory: The Licensee covenants that it shall not
seek customers, establish any branch or maintain any office or
depot in relation to the Products anywhere outside the Territory.
(f) The Licensee covenants to make the Royalty payments to the
Grantor by reason of sales by the licensee either to itself or
others and for the observance and performance by the licensees of
all the provisions of this Agreement.
ARTICLE VII - ROYALTY PAYMENTS
8.1 Royalty Payments
8.1.1. Royalties: As consideration for the license granted under
the licensed Patents, Patents pending, Know How and Trade Marks,
the Licensee agrees to pay the Grantor during the term of this
Agreement an ongoing royalty equal to .000875 dollars per square
inch of product (for
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example: 24 square inches of product would have a royalty of 2.1
cents,), hereinafter called the "royalty or royalties".
8.1.2 Payment Period: Within f if teen (15) days of the end of
each month in each year, the Licensee shall deliver to the Grantor
a report setting out the numbers, description (including
description of end use) and value of the sales of each Products
manufactured by or on behalf of the Licensee and sold by it
(whether separately or as part of any larger unit or products)
during such preceding quarter. Concurrently with the making of
each such report, the Licensee shall remit the Royalties then due
to the Grantor in respect of the Products sold by or on behalf of
the Licensee in the preceding quarter.
8.1.3 Estimated Minimum Royalties: The Grantor agrees that no
minimum royalty will be applicable for the first six (6) months of
the Agreement, although royalties will be due and payable in
accordance with 8. 1. 1, but thereafter the parties will mutually
determine the minimum royalties to be applicable for the following
year and each year thereafter. Provided, however, if the Licensee
does not achieve the minimum royalty levels outlined above, the
Grantor shall have the option to cancel the exclusive aspect of
this agreement and the Grantor would be free to enter into similar
agreements with others within the Territory.
8.1.4 Samples: No Royalties shall be payable in respect of
Products sold or otherwise disposed of by the Licensee for the
purpose of samples or bona fide tests on such Products.
8.1.5 No Deduction f or Tax: All payments to the Grantor under
this agreement shall be made without any deduction of any kind
except for withholding taxes, if any, eligible on the payments.
The Licensee undertakes to take all reasonable steps to assist the
Grantor to obtain the benefit of any double taxation agreement
which may apply to any of the payments under this agreement and to
minimize the impact of any taxation in respect of such payments.
8.1.6 Withholding Taxes: In the event that withholding taxes are
eligible on any payments under this agreement, the Licensee shall
withhold the withholding taxes required and shall promptly remit
such taxes to the appropriate taxing authority in the Territory.
Upon any such remittance, the Licensee shall promptly provide the
Grantor with any documentation that the Grantor shall reasonably
require so as to obtain a foreign tax credit in Canada.
8.1.7 Canadian Dollars: Except as otherwise specified in this
agreement, all payments required to be made by or on behalf of the
Licensee under this agreement shall be paid in Canadian dollars.
ARTICLE VIII - INDEMNIFICATION
9.1 Indemnity for Patent and Trade ▇▇▇▇ Actions
9.1.1 Modified Products: The Grantor shall have no obligation to
defend the Licensee or to pay costs, damages or legal fees for any
claim based on any modifications made to the Products by the
Licensee.
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ARTICLE IX - REGISTRATION AND MAINTENANCE OF PATENTS
10.1 Registration and Maintenance of Patents
10.1.1 If any Patents are issued in the Territory, the Grantor
shall be responsible for maintaining and keeping the Patents in
the Territory in full force and effect throughout the term of this
Agreement.
ARTICLE X - TRADE MARKS
11.1 Trade Marks and Other Proprietary Marks
11.1.1 Description as Authorized Licenses: The Licensee is
obligated to describe, refer to and advertise itself as a licensee
of the Grantor with the exclusive grant of the licensee as
provided in Article 2.1.1 hereof.
11.1.2 The Licensee agrees that its right to use the trade name
and trade ▇▇▇▇ shall be conditioned upon its selling only Products
of a quality equal to those being produced at any given time by
the Grantor, or at the Grantor's discretion, in accordance with
the reasonable standards of quality specified from time to time by
the Grantor. The Licensee acknowledges that the control of quality
and quantity of spices used in any process is very important and
will establish proper quality and quantity controls, and further
agrees to indemnify and save the Grantor harmless from any claim
or legal action in this regard.
11.1.3 Application for Registration of Trade Marks: In the event
that the Grantor decides to apply for registration of any one or
more of the Trade Marks in connection with the Products in the
Territory, the Grantor shall notify the Licensee in writing and
may request and obtain the Licensee's advice and assistance if
required, and keep the Licensee informed of pertinent -
developments and/or the issuance of registration. The cost of any
such registration of trade marks shall be for the account of the
Grantor and all such registrations shall be applied for and issue
in the name of and as the sole property rights of the Grantor.
Provided, however, that the Licensee shall pay additional
royalties for such developments, which royalties shall be
determined mutually, or, failing that, the Licensee may not
utilize such trade marks.
11.1.4 Now Trade Marks: If any Trade Marks of the Grantor are used
by the Licensee, alone or in combination with other trade marks of
the Grantor or the Licensee, in such manner as to be distinctive
by reason of design, color, format or any other reason, such
distinctive features and associated good will shall become the
property of an enure to the benefit of the Grantor, and the
Licensee agrees that it will, without any payment or other
consideration, sign and execute such documents as are necessary to
transfer and assign all rights thereto to the Grantor.
11.1.5 Transfer to Grantor: Should the law or regulations of any
part of the Territory invest the Licensee with any property rights
to any of the Trade Marks, the Licensee shall promptly, freely and
co-operatively relinquish to the Grantor any and all such rights
upon termination of this agreement for any reason, without
recourse or cost to the Grantor and shall thereafter refrain from
any further usage of the said Trade Marks.
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11.1.6 Cease Using on Termination: Following termination of this
agreement for any reason whatsoever, the Licensee agrees not to
register or use any of the Trade Marks, or any trade marks or
trade names which are the same as or confusingly similar to the
Trade Marks. This obligation shall survive the termination of this
Agreement.
ARTICLE XI - CONFIDENTIALITY
12.1 Confidentiality
12.1.1 The International Confidentiality Agreement for Technology
Transfer & Information Agreement signed by the parties hereto on
October 6, 1997 is hereby incorporated unto this agreement by
reference.
ARTICLE XII BOOKS AND RECORDS
13.1 Books and Records
13.1.1 Duty to Keep Records: The Licensee shall keep at its
principal place of business clear, accurate and comprehensive
records showing, in particular, all sales in the Territory of the
Products manufactured by or on behalf of the Licensee, or
purchased from the Grantor and sold in the Territory in sufficient
detail to enable the payments due under this agreement to be
correctly ascertained. The Licensee shall adhere to accounting
standards equal to or better than generally accepted accounting
principles established by the chartered accounting profession in
Canada.
13.1.2 Audit Discrepancy: The Grantor shall be entitled to appoint
an auditor or accountant to audit the records for the production
and sales of the Products, and the Licensee shall give access to
such records and supporting documentation and otherwise reasonably
assist in such audit so that the Grantor may obtain independent
verification of the written statements referred to above, such
audit to be made at the expense of the Grantor. However, in the
event that such audit reveals an error in favour of the Licensee
in excess of five (5%) percent of the amount stated in the
production statements for the year in question, then, the Licensee
shall be responsible to pay for the full cost of the audit.
ARTICLE XIII - FORCE MAJEURE
14.1 Excusable Delay
14.1.1 In case of force majeure preventing or hindering either
party from performing its obligations under this agreement, the
affected party may give written notice to the other containing
reasonable particulars of the force majeure in question and the
effect of such force majeure as it relates to the obligations of
the affected party and such force majeure shall not constitute a
default under this agreement, provided that the party affected by
the delay makes reasonable efforts to correct the reason for such
delay. Such notice shall entitle the affected party to suspend
deliveries or payments, as the case may be. For the purpose of
this agreement, "'force majeurell shall mean any of the following
events beyond the control of the parties:
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(a) lightning, storms, earthquakes, landslides, floods, washouts
and other acts of God;
(b) substantial or material fires, explosions, breakage of or
accidents to plant, machinery, equipment and storage of the
supplier;
(c) strikes, lockouts or other industrial disturbances of the
supplier;
(d) civil disturbances, sabotage, war, blockades, insurrections,
vandalism, riots, epidemics;
(e) inability to obtain supplies necessary to manufacture and
package the Products at the Licensee's plants, if inability is
industry-wide among similar manufacturers or inability to obtain
electric power, water, fuel or other utilities, or services
necessary to operate the plants; and
(f) any other material event that could reasonably be considered
to be force majeure by reason that it is beyond the control of the
party affected;
but shall not include the inability of either party to obtain
financing or any other financial inability on the part of either
party.
ARTICLE XIV - TERXINATION
15.1 Termination of Notice
15.1.1 Either party may terminate this agreement if,
(a) the other party is in default in any material respect in the
performance of any of its obligations under this agreement or
otherwise commits any material breach of this agreement, and such
default continues after sixty (60) days' written notice sent by
first class postage prepaid registered from the non-defaulting
party to the defaulting party stating the particulars of such
default (for the purposes herein, any failure to make any payment
due under this agreement shall be a material default);
(b) bankruptcy or insolvency proceedings are instituted by or
against the other party, which the other party does not defend or
which it is not successful in defending, or the other party is
adjudicated a bankrupt, becomes insolvent, makes an assignment for
the benefit of creditors or proposes or makes any arrangements for
the liquidation of its debts or a receiver or receiver and manager
is appointed with respect to all or any part of the assets of the
other party.
15.2 Events Upon Termination
15.2.1 Upon termination of this agreement f or any cause
whatsoever,
(a) all Royalties, including Royalties on the Products then on
hand or in the course of manufacture, shall immediately become due
and payable;
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(b) the Licensee shall forthwith, and not later than ninety (90)
days thereafter, return free of any charge to the Grantor, all
written information of whatever kind, including graphic and
electronically or magnetically recorded documents furnished by the
Grantor or created by the Licensee in relation to the Products
including, without limitation, notes, memoranda, diaries, records,
drawings, prints, sketches, plans, specifications and other
technical information made by the Licensee or its agents,
affiliates or employees and copies of any kind made thereof by
anybody, and derived from the technology of the Patents, Know-How,
Trade Marks, Products, or the manufacture thereof; further, the
Licensee agrees that it will forthwith discontinue the use of and
refrain from using, disclosing or exploiting the Know-How and any
technical data and information pertaining thereto or any
improvement or development in respect thereof disclosed to it
under this agreement by the Grantor and from manufacturing or
selling the Products and the Grantor shall forthwith have the
right to institute proceedings for infringement of any of its
Patent and Trade ▇▇▇▇ rights then in force;
15.2.2 Notwithstanding any such termination:
(a) all warranties and covenants set out in this agreement and
all obligations of indemnification shall survive and continue to
bind the parties;
(b) the Licensee shall honour any remaining payment obligations
set out in this Agreement.
ARTICLE XV - GENERAL PROVISIONS
16.1 Mutual Hold Harmless: With respect to damage or injury to
third parties resulting from use or consumption, or any pollution
or violation of applicable environmental laws or regulations
resulting from any release or disposal, of any Products (including
by-products or waste from production), produced under the license
granted by this Agreement (any of which is referred to in this
section as an "Indemnified Event"), then the following shall apply
as the case may be:
(a) If the Indemnified Event results from the negligent or
wrongful acts of the Grantor or defective technology licensed
hereunder, or information or technical assistance provided by the
Grantor to the Licensee under this Agreement, then the Grantor
shall indemnify and hold the Licensee harmless from any liability
for damage, injury, fine or penalty to said third party or the
applicable governmental authorities in connection with the
Indemnified Event, which indemnity shall include reasonable
attorney's fees and costs of defence.
(b) If the Indemnified Event results from any negligent or
wrongful acts of the Licensee, or from the Licensee's failure to
properly use and apply the technology licensed hereunder, or
information or technical assistance supplied by the Grantor
pursuant to this Agreement in accordance with the Grantor's
recommendations, then the Licensee shall indemnify and hold the
Grantor harmless from any liability for damage, injury, fine or
penalty to said third party or the applicable governmental
authorities in connection with the Indemnified Event, which
indemnity shall include reasonable attorney's fees and costs of
defence.
16.2 Dispute Resolution
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All disputes arising in connection with the present contract shall
be finally settled under any Arbitration Act, R.S.N.B. 1973# c. A-
10.1. The decision of a majority of the arbitrators shall be final
and binding on the parties, and the expense of the arbitration
shall be paid as the arbitrators may determine.
16.3 Assignment
16.3.1 The Grantor acknowledges that the Licensee may assign this
Agreement to an Affiliate or subsidiary and the assignee shall
continue to be bound by the terms and conditions of this
Agreement. The Licensee acknowledges that the Grantor may assign
this Agreement to an Affiliate or subsidiary and the assignee
shall continue to be bound by the terms and conditions of this
Agreement.
16.4 Language
16.4.1 The language of this contract shall be English.
16.5 Extended Meanings
16.5.1 Words importing the singular number include the plural and
vice versa and words importing gender include all genders as
provided in Clause 1.2.1.
16.6 Applicable Law
16.6.1 This agreement shall be deemed to have been made, executed
and delivered in Moncton, New Brunswick, Canada, and any
controversy arising under or in relation to this agreement shall
be governed by and construed in accordance with the laws of the
Province of New Brunswick, Canada.
16.7 Entire Agreement
16.7.1 This agreement constitutes the entirety of all the parties
with respect to the subject-matter hereof and, except as stated in
this agreement and in the instruments and documents to be executed
and delivered pursuant to it, contains all of the representations,
undertakings and agreements of all parties respecting the subject-
matter hereof. There are no representations, undertakings or
agreements of any kind between all the parties respecting the
subject-matter hereof except those contained in this agreement.
16.8 Severability
The invalidity or unenforceability of any provision of this
agreement shall not affect the validity or enforceability of any
other provision.
16.9 Currency
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16.9.1 Unless otherwise specifically provided in this agreement,
all references to dollar amounts or other money amounts are
expressed in terms of lawful money of Canada.
16.10 Notices
16.10.1 Any notice or other document required or permitted to be
given under this agreement shall be in writing and shall be
delivered, mailed by pre-paid registered mail, return receipt
requested or sent by telex or telecopy addressed to the party or
parties to whom it is to be given at the address shown below or at
such other address or addresses as the party or parties to whom
such writing or document is to be given shall have last notified
all other parties in accordance with the provisions of this
paragraph:
(a) if to the licensee at:
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(b) if to the Grantor at:
P. 0. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
16.10.2 Any such notice or other document shall:
(a) if delivered, be deemed to have been given and received at
the place of receipt on the date of delivery, provided that if
such date is a day other than a business day in the place of
receipt, such notice or document shall be deemed to have been
given and received at the place of receipt on the first business
day in the place of receipt, thereafter;
(b) if transmitted by telex or telecopy, be deemed to have been
given and received at the place of receipt on the next business
day in the place of receipt, following the day of sending; and
(c) if mailed, be deemed to have been given and received at the
place of receipt on the date of actual receipt.
16.10.3 In the event of postal disruption, such notices or
documents must either be delivered personally or sent by telex or
telecopy.
16.11 Amending of Agreement
16.11.1 None of the terms, conditions or provisions of this
agreement shall be held to have been changed, waived, varied,
modified or altered by any act or knowledge of either party,,
their respective agents, servants or employees unless done so in
writing signed by both parties.
16.12 Waiver of Breach
16.12.1 No waiver on behalf of any party of any breach of the
provisions shall be effective or binding on such party unless the
same shall be expressed in writing and any waiver so expressed
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shall not limit or affect such party's rights with respect to any
future breach of any of the provisions of this agreement.
16.13 Successors and Assigns
16. 13. 1 This agreement shall be binding on and enure to the
benefit of the successors and permitted assigns (Affiliates) of
both parties and all persons or corporations succeeding to or
acquiring the business now carried on by the Grantor or the
Licensee.
16.14 Time
16.14.1 When calculating the period of time within which or
following which any act is to be done or step taken the date which
is the reference day in calculating such period shall be excluded.
16.15 Time of the Essence
16.15.1 Time shall be of the essence of this agreement.
ARTICLE XVI - FURTHER ASSURANCES
17.1 Further Assurances
17.1.1 The Parties agree to co-operate with and assist each other
and take such further or additional action as may be reasonably
necessary to implement and carry into effect this Agreement to its
full extent.
ARTICLE XVII - WAIVE
18.1 Waiver
18.1.1 The waiver of any breach of any term or condition hereof
shall not be deemed a waiver of any other or subsequent breach,
whether of like or different nature. No failure to exercise and no
delay in exercising, on the part of either party hereto, any
right, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right,
power, or privilege hereunder preclude any other or further
exercise thereof or the exercise of any right, power or privilege.
The rights and remedies herein provided are accumulative and not
exclusive of any rights or remedies at law.
IN WITNESS WHEREOF the parties have duly executed this
agreement as of the date first above written.
SIGNED, SEALED AND DELIVERED TRANSFORM PACK INC.
in the presence of
Per: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
RESTAURANT INC.
Per /s/
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"A"
FLI SEASONING SHEET PROSPECTUS
1. Beacon Food Services
2. ▇▇▇▇▇▇▇ Enterprises
3. ▇▇▇ ▇▇▇▇▇ Farms
4. Cargill
5. Canteen Services
6. Chicken Shack
7. Chicago Beef Company
8. Daiei
9. Executive Caterers
10. TGI Fridays
11. HDS Food Services
12. Iceland Seafood Corporation
13. Kroger
14. Main Event Catering
15. Metromedia
16. Norpac
17. Performance Foods
18. Sugar Creek Packing
19. Wegman's Food Markets
20. ▇▇▇▇▇▇▇'▇ of Frankenmuth
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