Technology And Trademark License Agreement

Exhibit 10.1


TECHNOLOGY AND TRADEMARK LICENSE AGREEMENT


THIS TECHNOLOGY AND TRADEMARK LICENSE AGREEMENT (this "Agreement"), dated as of _______________, by and between a corporation duly organized and validly existing under the laws of _______________________________, (AGX"), and ________________________________________, a corporation duly organized and validly existing under the laws of ______ with its principal offices at __________________________________________________________________ ("Licensee").


WHEREAS, Ralston Purina Company, a corporation organized and validly existing under the laws of the State of Missouri, U.S.A., ("Ralston") has developed since 1894 a world-wide reputation with manufacturing facilities located on four continents for the quality of its animal feed products which is reflected in the preference for animal feed products bearing its trademarks;


WHEREAS, Agribrands International, Inc., a corporation organized and validly existing under the laws of the State of Missouri, U.S.A., ("Agribrands") is engaged in the international agricultural animal feeds business which prior to April 1, 1998 had been conducted by Ralston;


WHEREAS, Ralston is record owner of many registrations and applications to register various trademarks consisting of or containing the words "PURINA," "CHOW," "Checkerboard," Checkerboard designs, and variations on such marks, including, but not limited to, the applications and registrations identified as Ralston Trademarks shown on Schedule A hereto (the "Ralston Trademarks"); and


WHEREAS, Ralston has granted Agribrands a license to use the Ralston Trademarks on certain Agricultural Products (as hereafter defined) excluding Pet Products (as hereafter defined); and


WHEREAS, Agribrands is record owner of registrations and applications to register various trademarks, including the registrations and applications identified as Agribrands Trademarks shown on Schedule B hereto (the "Agribrands Trademarks"); and


WHEREAS, Ralston has granted Agribrands a license to use certain technology relating to Agricultural Products excluding Pet Products (the "Ralston Technology"); and


WHEREAS, Agribrands is the owner of certain technology relating to Agricultural Products (the "Agribrands Technology") which Agribrands acquired from Ralston pursuant to the terms of that certain Technology Transfer and License Agreement effective April 1, 1998 and such further technology as developed independently of Ralston; and


WHEREAS, Agribrands has granted AGX a sublicense to use the Ralston Trademarks and Ralston Technology, subject to the licenses from Ralston,


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together with a license to use the Agribrands Trademarks and Agribrands Technology;


WHEREAS, AGX is the record owner of registrations and applications to register various trademarks, including the registrations and applications identified as AGX Trademarks on Schedule C hereto (the "AGX Trademarks");


WHEREAS, AGX has developed and is the owner of certain technology (the "AGX Technology");


WHEREAS, Licensee desires to secure from AGX and AGX desires to grant to Licensee pursuant to the terms set forth in this Agreement the right to use the Ralston Trademarks, Agribrands Trademarks, the AGX Trademarks, Ralston Technology, Agribrands Technology and AGX Technology within the Territory;


NOW, THEREFORE, the parties, in consideration of the mutual premises set forth herein-above and the mutual covenants contained herein, agree as follows:


1. DEFINITIONS.


a. "Affiliate" shall mean any person and/or entity that directly,
or indirectly through one or more intermediaries, controls, or
is controlled by, or is under common control with the person
or entity specified.


b. "Agricultural Products" shall mean products formulated to
provide nourishment to or care of horses (whether or not
agricultural), laboratory or zoo animals (but not including
Pet Products sold to such institutions) and agricultural
animals (whether terrestrial, aquatic, or aviary) including by
way of illustration, but not limitation, commercial livestock,
commercial poultry, fish, reptiles or shellfish raised in
commercial aquaculture facilities; rabbits raised for
commercial purposes; animals raised for fur; wild or game
birds; and services for the care and feeding of such animals.
Except as provided elsewhere in this Agreement, "Agricultural
Products" shall also include accessories, health products and
services for the care and feeding of horses, zoo animals,
laboratory animals and agricultural animals.


c. "Fiscal Quarter" shall mean the three-month quarters ending on
the last business day of February, May, August and November.


d. "Fiscal Year" shall mean the period beginning on the first day
of September and ending of the last day of the following
August.


e. "Licensed Products" shall mean the Agricultural Products
produced by Licensee as of April 1, 1998, new Agricultural
Products produced by Licensee subsequent thereto with the
prior written approval of AGX and other products Licensee is


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authorized in writing by AGX to make or sell using certain
trademarks and technology licensed hereunder.


f. "Licensed Technology" shall mean all Ralston Technology,
Agribrands Technology, and AGX Technology supplied or given
access to Licensee during the effective period of this
Agreement or any prior agreement between Licensee and AGX or
between Licensee and any Affiliate of AGX.


g. "Licensed Trade Name" shall mean use by Licensee of one or
more of the Licensed Trademarks in its trade name in the
Territory pursuant to and as permitted by Section 3.c.


h. "Licensed Trademarks" shall mean the Ralston Trademarks
identified on Schedule A, Agribrands Trademarks identified on
Schedule B and the AGX Trademarks identified on Schedule C,
all of which are attached hereto and incorporated herein by
reference. Schedules A, B and C may from time to time be
amended by mutual agreement signed by both parties to add or
delete trademarks to the relevant Schedule.


i. "Net Sales" as used herein shall mean actual gross sales of
Licensed Products to all customers, including sales by
sublicensees of Licensee of Licensed Products and Licensed
Products used in Licensee's integrated operations, if any,
less: (a) trade, quantity or cash discounts, (b) commissions
to brokers or agents, if any, (c) return credits or
allowances, (d) sales taxes, excise taxes or other
governmental charges; (e) freight and insurance during
carriage; and (f) inter-company sales between Affiliates of
AGX upon which a royalty has already been charged.


j. "Owners" as used herein shall mean the owners of the Ralston
Trademarks, the Agribrands Trademarks and AGX Trademarks,
namely, Ralston, Agribrands and AGX, respectively.


k. "Pet Products" as used herein shall mean products for and
services related to the nourishment or care of pets other than
horses.


l. "Product Standards" shall mean the standards and
specifications prescribed in Section 4.a hereof and the
Appendices referred to therein.


m. "Ralston Trademarks" shall mean the trademarks listed on
Schedule A attached hereto and incorporated hereto and
incorporated herein by reference which schedule may be amended
from time to time by the parties hereto.


n. "Technology" shall mean technical information, Product
Standards, know-how, formulation systems, computer modelling


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programs for animal and feeding simulations, laboratory
standards and data, new ingredient developments, manufacturing
equipment advances, information which improves the processes
and procedures for the manufacture of Licensed Products,
sales/marketing programs, systems developed for the delivery
of proprietary technology and information, as well as
conferences, training and seminars provided by or on behalf of
AGX.


o. "Territory" shall mean the territory described on Schedule D
attached hereto and incorporated herein by reference which
schedule may be amended from time to time by the parties
hereto.


p. "Trade Name" shall mean corporate name and/or other business
name including, but not limited to, names of partnerships and
joint ventures (whether or not contained in the schedules of
Trademarks).


q. "U.S.A.", "US" and "United States" shall each refer to the
United States of America.


2. GRANT OF LICENSES.


a. License to Use Licensed Technology. Subject to the terms and
conditions of this Agreement, AGX, on its own behalf and as
representative for the Owners, hereby grants to Licensee a
non-exclusive and non-transferable license to use, in the
manner provided herein, the Licensed Technology in the
manufacture of the Licensed Products; anything herein to the
contrary notwithstanding, this sublicense to use the Ralston
Technology is subject to the terms and conditions of the
licenses from Ralston pursuant to which AGX has granted this
sublicense. Unless otherwise agreed by the parties in writing,
the Licensed Technology shall be supplied by AGX from its
offices in written form in the English language utilizing the
standard units of measures used in the United States.


It is understood and agreed that nothing in this Agreement
shall preclude Owners or AGX from licensing its Technology to
any other persons or entities, subject to the terms and
conditions of the Ralston license pursuant to which AGX has
granted this sublicense.


b. Trademark License. Subject to the terms and conditions of this
Agreement, AGX, as representative for the Owners and itself,
grants to Licensee a non-exclusive and non-transferable
license to use the Licensed Trademarks on or in connection
with the manufacture, marketing, distribution, sale and/or
advertising of the Licensed Products within the Territory;
anything herein to the contrary notwithstanding, this
sublicense to use the Ralston Trademarks is subject to the


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terms and conditions of the licenses from Ralston pursuant to
which AGX has granted this sublicense.


c. Sublicenses. The licenses granted to Licensee pursuant to
Sections 2.a and 2.b and the other rights granted under this
Agreement do not include the right to grant further
sublicenses except as follows:


i. prior to entering into any sublicense, Licensee shall
have first obtained the prior written consent of AGX
and, if deemed necessary by AGX, the prior written
consent of Agribrands and/or Ralston;


ii. no such sublicense shall be granted to the extent it
is inconsistent with or not permitted by the terms of
this Agreement or the terms of any agreement to which
AGX or Agribrands is subject, including but not
limited to the licenses from Ralston ;


iii. the sub-licensee shall have agreed in writing to be
bound by the provisions of Sections 3, 6 and 8.d;


iv. Licensee shall promptly provide AGX with a copy of
all executed sublicense agreements and if appropriate
an English translation thereof;


v. all sublicenses granted hereunder shall terminate
upon the earlier of the termination, for any cause
whatsoever, of this Agreement, the Ralston to
Agribrands license of Ralston Trademarks, or the
Ralston to Agribrands license of the Ralston
Technology; and


vi. Licensee shall include all Net Sales by any
sublicensee in the calculation of the amounts due to
AGX under this Agreement.


d. Toll Milling or Contract Manufacturers. Each proposed use of
independent, unrelated,third party manufacturers to produce
Licensed Products shall require the prior written approval of
AGX.


e. Governmental Registration and Approval. Licensee shall be
responsible for obtaining at its sole cost and expense, all
licenses, permits or governmental approvals necessary to give
effect to this Agreement and to effect timely payment of the
fees due to AGX. AGX agrees to reasonably cooperate with
Licensee, at Licensee's sole cost and expense, in connection
therewith.


3. ADDITIONAL TRADEMARK LICENSE TERMS AND RESTRICTIONS.


a. Trademark License for Ralston Trademarks Limited to
Agricultural Products. The Trademark License with respect to


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the Ralston Trademarks granted pursuant to Section 2.b shall
be limited to Agricultural Products; provided, however that
Licensee may use the Ralston Trademarks for publications such
as educational, training, advertising and promotional
material, relating to the Agricultural Products business it is
permitted to conduct.


b. Pet Products. Notwithstanding any other provision of this
Agreement, Licensee shall not use the Ralston Trademarks or
the Ralston Technology in connection with the production,
distribution or sale of Pet Products. Licensee shall not
produce, distribute or sell any Pet Products without the prior
written consent of AGX. In the event that Licensee is
authorized, in writing, by AGX to produce, market or sell one
or more Pet Products, then Licensee shall not:


(i) display, accompany or otherwise associate the
Ralston Trademarks with such Pet Products; and


(ii) the Trade Name of Licensee if it contains
a Ralston Trademark shall not appear on the packaging or
promotional materials for any Pet Product; unless,
expressly authorized in writing in advance by AGX and
then only if:


(a) Licensee is required by law to include
the manufacturer's full and true corporate name on
the package and alternatives thereto (including
but not limited to, the use of names of an
Affiliate (although not required to establish
specifically therefor), a fictitious name or an
abbreviation) are not permitted; and


(b) Then such corporate name shall only
appear on a side panel of the packaging in the
smallest typeface legally permissible.


Licensee shall at all times endeavor in good faith to
prevent any association of Licensee's Pet Products with
those of Ralston's.


c. Trade Name. Subject to the terms and conditions of this
Agreement, the license from Ralston and upon the prior written
consent of AGX, Licensee may use, where legally feasible, one
or more Licensed Trademarks in its trade name in the
Territory. In the event that Licensee is authorized in advance
in writing by AGX to use a Ralston Trademark in its Trade
Name, the Trade Name shall include a word reflecting the
agricultural or aquacultural related nature of the business of
Licensee, such as "Agribrands Purina", and provided such use
is not likely to cause confusion with any other use of the
Ralston Trademarks by Ralston, its Affiliates or licensees.


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d. Creation of New Trademarks. Licensee shall not coin new
trademarks which are, in whole or in part, derived from,
incorporate or are similar to any of the Ralston Trademarks or
names or elements of those marks or names.


e. Use of Licensed Trademarks. Except as otherwise specifically
provided for in this Agreement, Licensee hereby agrees, for
itself and its Affiliates and sublicensees, to limit its and
their use of the Licensed Trademarks and Trade Names to the
Licensed Products within the Territory. Licensee agrees to
cooperate to resolve conflicts resulting from sales of
Licensed Products violating third-party rights or jeopardizing
trademark rights of the Owners or contractual obligations of
the Owners to third parties.


f. Permission to Sell Trademarked Products Outside of the
Territory. Licensee may apply, in writing, to AGX for
permission to market Licensed Products bearing the Licensed
Trademarks outside the Territory. The decision to grant or
refuse such requests shall be within the sole discretion of
AGX and the Owners, provided however, that AGX and the Owners
shall not be required to grant any permission to Licensee
which would conflict or interfere with any rights granted to
any other person or entity for such Licensed Trademarks.
Except to the extent permitted by AGX, Licensee hereby agrees,
for itself and for its Affiliates and sublicensees, to limit
its use of the Licensed Trademarks and Licensed Trade Names to
the Territory; not to export from the Territory products on or
in connection with which Licensed Trademarks are used and not
to sell, deliver or otherwise convey such products to anyone
Licensee believes or has reason to believe will take the same
outside the Territory.


g. Permission to Use the Licensed Trademarks on Other Than
Licensed Products. Licensee may apply, in writing, to AGX for
permission to market products, other than Licensed Products,
bearing the Licensed Trademarks. The decision to grant or
refuse such requests shall be within the sole discretion of
AGX and the Owners, provided however, that AGX and the Owners
shall not be required to grant any permission to Licensee
which would conflict or interfere with any rights granted to
any other person or entity for such Licensed Trademarks.


h. Conflict with Owners' Agreements. Licensee shall cease use of
any Licensed Trademark with respect to any Licensed Product or
other manner of use upon notice from AGX or the Owners that
such use may conflict with the existing contractual
obligations of AGX or the Owners.


i. Ownership of Trademarks. Licensee hereby acknowledges that
Ralston, Agribrands and AGX are and will forever remain the
sole and rightful owner of the Ralston Trademarks, Agribrands
Trademarks and AGX Trademarks, respectively, and any use of a


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Licensed Trademark, or use of a Licensed Trademark in Trade
Names by Licensee or any Affiliate or other sublicensee
pursuant to this Agreement shall inure to the benefit of the
Owner of the specific trademark. Licensee agrees that during
the continuance and after a termination of this Agreement,
Licensee will not claim any right in or to any of the Licensed
Trademarks and Licensed Trademarks used in Trade Names, other
than the license to use the same as specifically provided
herein, nor will Licensee dispute or assist others to dispute
the ownership or validity of any of the Licensed Trademarks
and Licensed Trade Names. Licensee shall not acquire or have
any right, title or interest in and to the Licensed Trademarks
as a result of the use of the Licensed Trademarks.


j. Trademark Notices and Usage. Licensee agrees to make
reasonable efforts to use the Licensed Trademarks properly as
trademarks or service marks, by, for example: (i) using
(R),(TM), *, MD or MR or other appropriate trademark
registration symbols, (ii) employing notices indicating
Owner's ownership of the Licensed Trademarks; and (iii) using
Licensed Trademarks as adjectives followed by generic terms.
Licensee shall make advertising, packaging and labeling
available to AGX and the Owners upon their request from time
to time for the purposes of satisfying the Owners or AGX of
Licensee's compliance with this Agreement.


k. Registration. Licensee shall provide AGX with evidence of use,
specimens or other materials the Owners or AGX may reasonably
request to facilitate renewal or maintenance of registrations
of, or applications to register, the Licensed Trademarks. AGX
and the Owners shall have no further obligations to Licensee
under this Agreement with respect to any Licensed Trademark or
Licensed Trade Name in a given jurisdiction which has been or
will be abandoned as determined by the law of the applicable
jurisdiction or to the extent a registration covering the same
is canceled for any reason not caused by the Owners or is
canceled or rendered cancellable for non-use by Licensee for
Licensed Products in such country or for which Licensee has
not timely provided supporting evidence of use and paid for
renewal or maintenance of such trademarks.


l. Registration of This Agreement for Trademark Purposes.
Licensee agrees to assist the Owners in the filing of this
Agreement, subsequent agreements or any other instruments
before any governmental body or agency, including but not
limited to registered user agreements, which may be required
by the Owners and/or AGX and/or any government authority in
order to protect the trademark rights of the Owners and/or AGX
under this Agreement.


m. Use Only on Licensed Products. Except as specifically provided
elsewhere in this Agreement, Licensee shall not use any
Licensed Trademark, or term confusingly similar thereto, as a
trademark for, or Trade Name associated with, any product or


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service other than a Licensed Product. If Licensee
manufactures or sells any other product or renders any other
service, it shall conduct its business with respect to such
product or service not licensed to it hereunder under a Trade
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