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EX-10.C
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EXHIBIT 10(C)
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Exhibit 10(c)
ASSIGNMENT OF RIGHTS AGREEMENT
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ASSIGNMENT AGREEMENT, dated as of November 5, 2000 (the "Assignment
Agreement"), by and among R. DAVID THOMAS A/K/A DAVE THOMAS a resident of Ft.
Lauderdale, Florida ("THOMAS") and WENDY'S INTERNATIONAL, INC., an Ohio
corporation ("WENDY'S).
WHEREAS, Wendy's is a corporation that engages in the Quick Service
Restaurant business internationally and advertises and promotes it products and
services through all of the major media;
WHEREAS, Thomas is the Founder and Senior Chairman of Wendy's, the
international chain of restaurants that are dedicated to delivering food and
service in a prompt manner ("Quick Service Restaurants" or "QSR"); and,
WHEREAS, Thomas also is the founder and currently a Trustee of the Dave
Thomas Foundation for Adoption, Inc. ("Foundation"), which is dedicated to
helping children find permanent homes and loving families; and,
WHEREAS, Wendy's has used Thomas as a spokesperson and focal point for
Wendy's QSR products and services for many years and has, through its extensive
investment in the advertising and promotional use of Thomas's name, likeness,
image, voice, caricature, endorsement rights and photographs (the "Thomas
Persona") made the Thomas Persona well known in the United States and throughout
the world and a valuable asset for Thomas; and,
WHEREAS, Thomas has served as the chief spokesperson for Wendy's and
has been featured in advertising campaigns (the "Dave Ads"); and,
WHEREAS, Thomas understands and acknowledges that the Thomas Persona
asset has acquired increased value as a result of Wendy's use of Thomas as a
spokesperson and focal point
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of the long running series of advertisements and, as a result of Wendy's
promotion of the Thomas Persona, the Thomas Persona has become associated by the
public as representative of Wendy's, its services and its products; and,
WHEREAS, both parties hereto desire to maintain the Wendy's - Thomas
association in the public mind and to have Wendy's have the ability to use the
Thomas Persona in advertising and as a spokesperson for Wendy's services and
products; and,
WHEREAS, both parties recognize the importance of maintaining the
status of the Thomas Persona throughout Thomas's life and after his death as a
wholesome ideal free of any approbation by any segment of the public; and,
WHEREAS, the parties recognize that control of the use of the Thomas
Persona must reside with one entity that has the longest range interest in
maintaining the high ideal status of the Thomas Persona and because of the
economic investment and risk of harm that would occur to Wendy's if the Thomas
Persona were to become used in any manner adverse to said high ideals, the
parties recognize that entity is Wendy's; and,
WHEREAS, pursuant to the terms and conditions of this Assignment
Agreement, Thomas desires to assign to Wendy's, and Wendy's desires to assume
from Thomas the entire right, title, interest and ownership in and to the Thomas
Persona which ownership includes the sole and exclusive right to commercially
use the Thomas Persona, including all Derivative Works of it (as defined
herein).
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
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I. DEFINITIONS
For all purposes of this Assignment Agreement, except as otherwise expressly
provided herein or unless the context otherwise requires, each of the following
terms shall have the following respective meanings:
"AFFILIATE" and "ASSOCIATE" have the meanings prescribed by Rule 12b-2
of the regulations promulgated pursuant to the Securities Exchange Act of 1934,
as amended and shall have the additional meaning of family members of the Thomas
family and any and all heirs of R. David Thomas.
"DAMAGES" means lost profits, lost sales, diminution of the value of an
asset, assessments, liabilities, costs and expenses, including, without
limitation, interest, penalties and reasonable attorneys' fees, charges and
disbursements and reasonable consultants' fees.
"WORK" means any use of the Thomas Persona or any of the Thomas Persona
elements in any machine or human recognizable form now in existence or known or
that are later developed, including without limitation to, print media, video,
film, audio, three dimensional objects, books, music and other expressions of
the intellect.
"DERIVATIVE WORKS" means all new work, in any and all media now in
existence or known or that are later developed, which incorporate any elements
of the Thomas Persona that have been or will be developed, created, and/or
recorded, including, but not limited to, using present footage of Thomas in
different settings than the original or with different audio tracks.
"GOVERNMENTAL AGENCY" means any federal, state, local, foreign or other
governmental agency, instrumentality, commission, authority, board or body.
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"LIENS" means any mortgage, pledge, lien, security interest,
conditional sale agreement, easement, leasehold, interest, license, restriction,
charge, claim or other encumbrance or commitment or obligation of any kind
(whether absolute, accrued, contingent or otherwise).
"PERSON" means any individual, corporation, partnership, limited
liability company, association, joint-stock company, trust, unincorporated
association, government and political subdivision thereof.
"PROPERTY RIGHTS" means the exclusive rights in and to the Thomas
Persona and its individual elements including the registration rights in it
and/or any Derivative Works as trademarks, copyrights, domain names or any other
intellectual properties now or in the future recognized anywhere in the world
and in perpetuity for any and all purposes, subject to the restrictions which
Wendy's agrees to in Section 3.02(a) of this Assignment Agreement.
"SUBSIDIARY" means another Person (a) more than fifty percent (50%) of
whose outstanding shares or securities (representing the right to vote for the
election of directors or other managing authority) are owned or controlled,
directly or indirectly, by a party hereto, or (b) that does not have outstanding
shares of securities, as may be the case in a partnership, joint venture,
limited liability company or unincorporated association, but more than fifty
percent (50%) of the ownership interest representing the right to make the
decisions for such corporation, company, or other entity is, now or hereafter,
owned or controlled, directly or indirectly, by such party. Such corporation,
company, or other entity shall be deemed to be a Subsidiary only so long as such
ownership or control exists.
"TRADEMARK" or "MARK" means a name, brand, domain name, service mark
and/or trademark registered or unregistered in any country or other political
division anywhere in the world that is used to identify or is intended to
identify the source of a service or product.
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II. TRANSFER OF RIGHTS
2.01. RIGHTS TRANSFERRED. Subject to the terms and conditions of this
Assignment Agreement, Thomas irrevocably conveys, assigns, transfers and
delivers to Wendy's all of his rights, title and interest in and to the Thomas
Persona and all Property Rights associated therewith; provided, however, that
Thomas, or his heirs, reserves the rights to receive all royalties and residuals
for works he creates as an author or artist unrelated to and apart from the use
of the Thomas Persona and for the use of the Thomas Persona as set forth in
paragraph 7.04.
2.02. EXPRESS AGREEMENT. Except as and to the extent expressly provided
in this Assignment Agreement, Wendy's has not agreed to assume, and will not
have any liability or obligation with respect to, any liability or obligation,
direct or indirect, absolute or contingent, of Thomas or any of Thomas's
Associates or his Affiliates.
III. CONTROL OF AND USE OF THOMAS PERSONA
3.01. WENDY'S DISCRETION. Wendy's shall have full authority and
discretion to use the Thomas Persona for any purpose it chooses, subject to
covenants contained in Section 3.02.
3.02. COVENANTS REGARDING USE BY WENDY'S. Wendy's agrees to limit its
use of the Thomas Persona solely to advertising, promotion, marketing, public
relations, sales and related activities specifically pertaining to Wendy's as
Wendy's is currently, or may in the future be, positioned provided that such use
of the Thomas Persona does not lead to disparagement, ridicule or disrepute of
Thomas during his lifetime or to the Thomas Persona after Thomas's death.
Wendy's further agrees that it will at all times use the Thomas Persona in a
manner, commensurate with Community Standards (as defined in Section 3.03(b)).
Wendy's acknowledges that the Foundation, for so long as it maintains its
present purpose and ideals, has an interest in the maintenance of the Thomas
Persona as a wholesome family oriented image. In
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furtherance of Wendy's and the Foundation's obligations to maintain the quality
image of the Thomas Persona in accordance with community standards, Wendy's
shall license the Foundation to use the Thomas Persona as set forth in paragraph
3.04, such License to be executed concurrently with the execution of this
Assignment. The License will provide for the Foundation to question Wendy's use
of the Thomas Persona if, in the Foundation's reasonable belief, Wendy's use of
the Thomas Persona does not meet the local community standards as described in
paragraph 3.03 (b).
(a) CONTROL. To determine and enforce the community standards
requirement, an independent Standards Committee will be created as set forth in
Section 3.03 which Committee shall be convened at the request of Dave Thomas,
during his life time and capacity to act independently; thereafter, in the event
of Dave Thomas's death or incapacity, during the life of Dave Thomas's wife
Lorraine's lifetime and capacity to act independently; and thereafter, in the
event of Lorraine Thomas's death or incapacity, the lifetime and capacity of the
adult lineal descendants of Dave Thomas (collectively the "Thomas Interests"),
if in their view the use of the Thomas Persona by Wendy's is in a manner
inconsistent with such standards.
Notwithstanding the establishment of a Community Standards Committee,
Wendy's specifically agrees that it shall not, under any circumstances, use the
Thomas Persona or any trademarks or other rights derived from the Thomas Persona
which such rights identify Thomas, for any firearms, medical devices,
pharmaceutical or over the counter drugs, including specifically, but without
limitation to, alcohol, tobacco and/or birth control products and/or in support
of services designed to promote birth control or the restriction of family size.
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3.03. STANDARDS COMMITTEE. In order to determine compliance with the
Community Standards, Wendy's shall establish and endow an independent Standards
Committee, which shall be organized and shall operate as follows:
(a) COMPOSITION. The Standards Committee shall consist of a
total of five (5) members reflecting the community at large, including one
representative appointed from the Columbus Bar Association ("CBA"), one
representative from the Columbus, Ohio Chamber of Commerce; one representative
from the Columbus, Ohio chapter of the Council of Christians and Jews, and two
members at-large, appointed by the Franklin County Probate Court from the
Greater Columbus, Ohio community. The Court shall assure by its selection that
Standards Committee shall at all times include at least one member that is a
racial minority and shall contain members of different sexes. The Columbus Bar
Association committee member shall be designated as the Chairman of the
Standards Committee.
(b) PURPOSE AND GOVERNING STANDARD. The Standards Committee's
purpose shall be to determine that the uses of the Thomas Persona by Wendy's
comport with the community standards as represented by the Greater Columbus,
Ohio community. The Committee shall be convened upon the request of the
appropriate Thomas Interests on the one part or Wendy's on the other when either
party disagrees on the appropriateness of a use of the Thomas Persona by
Wendy's.
(c) PURPOSE OF ENDOWMENT. Wendy's shall initially endow the
Standards Committee in an amount of not less than one hundred and fifty thousand
dollars (US $150,000) which amount shall be placed in a trust account at a
federally insured bank in Columbus, Ohio with a minimum of one hundred million
dollars in assets (the "Endowment Fund") and the interest accrued thereon paid
to Wendy's annually or, at Wendy's sole option, added to the
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principle in the trust account. Wendy's shall see that the trust amount is
adjusted for inflation annually so that the trust amount remains at purchasing
level equivalent to $150,000.00 in the year 2000. The Endowment Fund may be used
as the Standards Committee deems reasonably appropriate including payment of an
hourly rate to its members in the amount that they would charge clients or
customers of their regular services, but in no instance more than an amount
adjusted to equate to $250.00 per hour in the year 2000. The Endowment Fund may
be used to pay for the services of a secretary as, if and when needed. Moreover,
in the event a dispute arises between the Thomas Interests and Wendy's and the
Procedure outlined in paragraph 3.03(d) hereof is instituted and the Standards
Committee, in its sole discretion, determines that legal and/or expert advice is
necessary for it to present its position, Endowment Fund money may be used for
such purposes and shall be immediately replenished by Wendy's so that the
initial amount is always available to the Standards Committee at any given time.
It is contemplated by the parties hereto that the Standards Committee will only
rarely need to convene.
(d) PROCEDURE. If, at any time, the Thomas Interests believes
that any use of the Thomas Persona by Wendy's or its Affiliates or Associates is
a disparaging use or use in a demeaning manner in violation of the Covenants of
Section 3.02, the Thomas Interests may immediately notify Wendy's in writing,
setting forth the reasons for the objection. Upon receipt of such notification,
Wendy's shall have ten (10) days from the receipt thereof to respond to the
objection with a written description of how it proposes to address the stated
concerns. The Thomas Interests and Wendy's shall use their best efforts to
resolve between themselves, all issues with respect to the disputed use.
(e) DISPUTE RESOLUTION. If the Thomas Interests and Wendy's
are unable to reach a resolution with respect to the disputed use, they or
either of them may ask that the
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Standards Committee be convened and may present the matter to the Standards
Committee for determination upon procedures that are established by the
Standards Committee which the parties hereto recommend should follow recognized
arbitration proceeding procedures streamlined to the greatest extent possible to
provide for as expedient and inexpensive resolution as possible. The decision of
the Standards Committee shall be binding and final.
3.04. DAVE THOMAS FOUNDATION AND CHARITY WORK. The parties hereto agree
and understand that Thomas is actively involved in the Foundation and that the
Foundation has the name Dave Thomas in its corporate title. In order to protect
the Property Rights acquired by Wendy's by this Agreement, to allow Thomas to
continue his work in connection with the Foundation, to allow the Foundation to
use "Dave Thomas" in its corporate title, to allow Thomas to use his Persona in
the promotion of the Foundation during his lifetime and to allow the Foundation
to use the Thomas Persona after Thomas's death for Foundation purposes as the
Foundation is presently constituted, Wendy's shall contemporaneously with the
signing of this Agreement execute a License Agreement with the Foundation in the
form annexed hereto as Exhibit A (the "License Agreement"). The parties
acknowledge and agree that the License Agreement shall and does require that the
Foundation shall always make use of the Thomas Persona in a manner that is not
adverse or inimical to the commercial interests of Wendy's and that Wendy's, as
the owner of the Thomas Persona, shall have certain rights of quality control to
assure that the Foundation's uses of the Thomas Persona are in accordance with
the high standards the parties want to maintain for the use of the Thomas
Persona.
3.05. OTHER PERMITTED ACTIVITIES OF THOMAS. During Thomas's lifetime
Thomas shall be allowed to continue to use his name as his personal
identification in connection with his activities on the Boards of, or in
connection with, for profit and not-for-profit corporations,
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charities, clubs, fraternal and religious organizations and other worthwhile
causes (collectively Thomas Associations) so long as such activities are not, in
Wendy's reasonable opinion, inconsistent with Wendy's commercial interests.
Wendy's agrees that Thomas's participation in the capacities and entities listed
on Schedule A are not inconsistent with Wendy's commercial interests. It is
specifically understood, acknowledged and agreed that Thomas may not allow his
Persona, or any elements of it, to be used for any promotional, advertising,
endorsement or other commercial or not-for-profit purposes the Thomas
Associations with which he is associated without the prior written agreement by
Wendy's who shall, in its sole discretion, determine whether to agree to such
uses.
3.06. PROSCRIBED ACTIVITIES. The parties hereto, agree and understand
that nothing herein is intended to prevent Thomas from associating with whomever
he, in his sole discretion, pleases in his personal life; provided however, that
Thomas understands that to the extent his personal life associations become
matters of public interest, through news media or other public forums, and such
associations cause embarrassment to Wendy's or cause it to lose goodwill with
any segment of its market as Wendy's, in its sole discretion, shall decide or
cause Wendy's to no longer be able to use the Thomas Persona for its products
and services, Wendy's, in its sole discretion, can terminate this Agreement
subject to the provisions of paragraph 6.02 below. Thomas therefore agrees to
the following restrictions on his conduct and activities:
(a) POLITICAL ACTIVITIES. Thomas shall not seek or hold
political office or seek to or hold an office in a political party or any other
organization which, in Wendy's reasonable opinion, engages in causes or
activities detrimental to Wendy's commercial interests. Nothing in the foregoing
shall, however, restrict Thomas from belonging to (i) the Ft. Lauderdale Baptist
Church, or (ii) any political party that qualifies for federal matching funds or
(iii) personally
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associating with whomever he chooses at any time provided such associations do
not bring disrepute or embarrassment to the Thomas Persona.
(b) NO DISREPUTABLE CONDUCT Thomas will, at all times, conduct
himself with due regard to not bringing disrepute or embarrassment on the Thomas
Persona or Wendy's or its products or otherwise impairing the ability of Wendy's
to use the Thomas Persona as provided herein. Wendy's will, at all times,
conduct itself with due regard to not bringing disrepute or embarrassment on
Thomas or the Thomas Persona.
IV. PURCHASE PRICE
(a) The purchase price ("Purchase Price") paid to Thomas shall
be an amount equal to that which would fund the purchase of an annuity at
competitive market rates, with a company mutually agreed upon; such annuity
being based upon Thomas' actuarial life to fund a $500,000 per annum payment for
a period of fifteen (15) calendar years, with the first payment commencing on
the fifth year anniversary date of the Effective Date of this Assignment
Agreement, and otherwise upon terms and conditions and in form and substance
satisfactory to the parties.(1) The Purchase Price shall be paid on a mutually
agreeable date, but in no event shall such date be later than January 4, 2001.
(b) Wendy's agree to furnish or reimburse Thomas for the
reasonable, prior approved costs of office facilities, secretarial services,
security and transportation for Thomas personally to pursue and meet his
obligations under this Assignment Agreement. This obligation of Wendy's is
personal to Thomas and may not be assigned or devised.
(c) The Purchase Price for the Thomas Persona and all Property
Rights associated therewith set forth herein shall be allocated in total to the
acquisition of an intangible
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(1)(NOTE: It is anticipated by the parties that this amount shall be
approximately $4.7 - $4.8 million.)
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asset. Wendy's and Thomas agree to use the allocation for federal and state
income tax purposes and to cooperate in the preparation and timely filing of IRS
Form 8594 reflecting the allocation.
V. REPRESENTATIONS AND WARRANTIES
5.01. OF THOMAS. Thomas hereby represents and warrants to Wendy's as
follows:
(a) AUTHORITY. Thomas has the power and authority to enter
into this Assignment Agreement and the other agreements, documents and
instruments to be executed and delivered by him pursuant hereto, and to carry
out the transactions contemplated hereby and thereby.
(b) VALID AND BINDING AGREEMENT. This Assignment Agreement and
each of the other agreements, documents and instruments executed and delivered
by Thomas pursuant hereto constitutes a valid and binding agreement of Thomas,
enforceable against him in accordance with its terms to the extent permissible
by applicable law or regulation.
(c) NO VIOLATION. Neither the execution and delivery of this
Assignment Agreement or any other agreements, documents and instruments to be
executed and delivered by Thomas pursuant hereto nor the consummation by Thomas
of the transactions contemplated hereby or thereby will, to Thomas' knowledge
(i) violate or conflict with any statute, law, ordinance, rule, regulation,
order, judgment or decree affecting Thomas, or (ii) result in the creation of
any Lien against Thomas or any of the Property Rights; or (iii) violate or
conflict with or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by any contract,
commitment, understanding, arrangement, agreement or restriction of any kind or
character to which Thomas is a party or by which Thomas may be bound or
affected, or to which Thomas or the Property Rights are subject, or (iv) cause,
or give any Person grounds to
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cause (with or without notice, the passage of time, or both), the acceleration
of the maturity of any debt, liability or obligation of Thomas , or increase any
such liability or obligation or have any other adverse effect. Except as herein
provided, no consent, approval, authorization, order, permit, action by,
registration, declaration or filing with any Governmental Agency or other third
party is required in connection with the execution and delivery by Thomas of
this Assignment Agreement, any other agreements, documents and instruments to be
executed and delivered by Thomas pursuant hereto or by the consummation by
Thomas of the transactions contemplated hereby or thereby.
(d) RIGHTS. To the best of Thomas's actual knowledge, the
Property Rights herein conveyed do not conflict with or infringe any similar
rights of any other Person. Thomas has not and to his actual knowledge no one on
his behalf has previously assigned any of the Property Rights and no one has
claim to the Property Rights. To Thomas's knowledge, no claims have been
asserted by any Person or entity with respect to the ownership, validity,
license or use of the Property Rights and there is no basis for any such claims.
Thomas, in conjunction with Wendy's has taken reasonable measures to enforce,
maintain and protect his interests in and, to the Property Rights. Thomas has,
and upon consummation of the transfer of the Property Rights contemplated hereby
will deliver to Wendy's, the sole and exclusive ownership of the Property
Rights.
(e) ADVICE OF COUNSEL. Thomas has entered into this Assignment
Agreement with the advice of counsel of his own choosing and understands his
rights and obligations under this Assignment Agreement.
(f) DISCLOSURE. No representation or warranty to Wendy's
contained in this Assignment Agreement, and no statement contained in any
certificate, document or instrument
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delivered by Thomas pursuant hereto contains, to Thomas's knowledge, any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein or therein not misleading.
5.02. OF WENDY'S. Wendy's hereby represents and warrants to Thomas as
follows:
(a) AUTHORITY. Wendy's is a corporation duly organized,
validly existing and in good standing under the laws of the State of Ohio.
Wendy's has the power and authority to enter into this Assignment Agreement and
the other agreements, documents and instruments to be executed and delivered by
it pursuant hereto, and to carry out the transactions contemplated hereby and
thereby.
(b) VALID AND BINDING AGREEMENT. This Assignment Agreement
constitutes, and when executed and delivered each of the other agreements,
documents and instruments to be executed and delivered by Wendy's pursuant
hereto will constitute a valid and binding agreement enforceable against Wendy's
each in accordance with its terms.
(c) NO VIOLATION. Neither the execution and delivery of this
Assignment Agreement or the other agreements, documents and instruments to be
executed and delivered by Wendy's pursuant hereto nor the consummation by
Wendy's of the transactions contemplated hereby or thereby will, to Wendy's
knowledge (i) conflict with any provision of the Certificate of Incorporation or
By-Laws of Wendy's, or (ii) violate or conflict with or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or will result in the termination of, or accelerate the
performance required by, or result in the creation of any Lien upon Wendy's or
any of the Property Rights or have any other adverse effect under, any term or
provision of the Certificate of Incorporation or By-Laws of Wendy's or of any
contract, commitment, understanding, arrangement, agreement or restriction of
any kind or
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character to which Wendy's is a party or by which Wendy's may be bound or
affected, or to which Wendy's or the Property Rights are or will be subject, or
(iii) cause, or give any Person grounds to cause (with or without notice, the
passage of time, or both), the maturity or acceleration of the maturity of any
debt, liability or obligation of Wendy's, or will increase any such liability or
obligation or have any other adverse effect. Except as herein provided, no
consent, approval, authorization, order, permit, action by, registration,
declaration or filing with any Governmental Agency or other third party is
required in connection with the execution and delivery by Wendy's of this
Assignment Agreement, the other agreements, documents and instruments to be
executed and delivered by Wendy' pursuant hereto or the consummation by Wendy's
of the transactions contemplated hereby or thereby.
(d) ADVICE OF COUNSEL. Wendy's has entered into this
Assignment Agreement with the advice of counsel of its own choosing and
understands its rights and obligations under this Assignment Agreement.
(e) DISCLOSURE. No representation or warranty to Thomas
contained in this Assignment Agreement, and no statement contained in any
certificate, document or instrument delivered by Wendy's pursuant hereto
contains, to Wendy's knowledge, any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements contained
herein or therein not misleading.
VI. SURVIVAL OF REPRESENTATIONS AND REMEDIES
6.01. SURVIVAL OF REPRESENTATIONS. All representations, warranties and
agreements made by any party in this Assignment Agreement or pursuant hereto
shall survive expiration or termination of this Assignment Agreement.
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6.02. REMEDIES. If, in Wendy's opinion, Thomas shall have violated the
provisions of paragraph 3.06, 3.06(a) or 3.06(b) of this Assignment Agreement,
Wendy's shall, in addition to all other legal and equitable remedies, including
damages and injunctive relief against Thomas and/or his beneficiaries and/or
heirs which it may obtain from a court of competent jurisdiction have the right
to declare that this Assignment Agreement is terminated. In the event that
Wendy's, in its sole determination, decides that Thomas has violated the
provisions of paragraphs 3.06, 3.06(a) and/or 3.06(b) of this Assignment
Agreement and declares this Assignment Agreement to be terminated, it shall so
notify Thomas in writing. Upon receipt of such written notice Thomas shall have
ten (10) days from the date of delivery of the notice from Wendy's to request by
written response to Wendy's, with a copy to the Chairman of the Standards
Committee , that the matter of the termination of this Assignment Agreement be
submitted for review to the Standards Committee. The Standards Committee shall
convene within ten days of receipt of the request and hear the reasons of
Wendy's as to why the Assignment Agreement should be declared terminated and the
reasons of Thomas as to why it should not be terminated. The Standards Committee
shall render its decision within seven (7) days of the hearing and its decision
shall be final and non-appealable as to the issue of termination of this
Assignment Agreement. In the event that the Standards Committee agrees with
Wendy's, Thomas shall immediately abide by the decision of the Standards
Committee or Wendy's may, in its sole determination, declare that the assignment
provided herein is paid in full and no more payments or reimbursements need to
be made to Thomas or his beneficiaries. Wendy's may not withhold any payments
due under this Assignment Agreement unless and until there has been a final,
non-appealable decision of the Standards Committee, adverse to Thomas. It is
understood and acknowledged that in the event of the termination of this
Assignment
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Agreement as provided herein, the rights assigned hereunder remain the sole and
exclusive property of Wendy's.
(a) ADDITIONAL REMEDIES OF WENDY'S. Notwithstanding the
provisions of paragraph 6.02 hereof, Wendy's shall have the right to seek legal
and equitable remedies through the courts to protect its goodwill and prevent
the continuation of the complained of acts, to obtain damages caused by the acts
and/or for the loss of goodwill in the Property Rights. Further, in the event
that the decision of the Standards Committee favors Wendy's it may seek the
enforcement of the Standards Committee's decision in a court of competent
jurisdiction.
(b) ADDITIONAL REMEDIES OF THOMAS. In the event of a material
breach of this Agreement by Wendy's, Thomas may seek legal remedies from the
courts or equitable remedies requiring specific performance by Wendy's. The
parties agree that under no circumstances may Thomas or his heirs or assigns
seek the return of the rights in and to the Thomas Persona, the Property Rights
or any of them. The parties agree that the assignment herein made is final.
VII. MISCELLANEOUS
7.01. WAIVER OF COMPLIANCE. Any failure of any party to comply with any
obligation, covenant, agreement or condition herein may be expressly waived in
writing by the other parties hereto, but such waiver or failure to insist upon
strict compliance with such obligation, covenant, agreement or condition shall
not operate as a waiver of, or estoppel with respect to, any subsequent or other
failure.
7.02. FURTHER ASSURANCES. From time to time, at the request of Wendy's
and without further consideration, Thomas agrees that he will execute and
deliver to Wendy's such documents and take such other action (but without
incurring any material financial obligation) as
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Wendy's may reasonably request in order to consummate more effectively the
transactions contemplated hereby, including, without limitation, consent to
trademark applications in the United States Patent and Trademark Office or
elsewhere throughout the world for the registration of Trademarks of the Thomas
Persona or elements of it and other documents needed to vest in Wendy's good,
valid and marketable title in and to the Thomas Persona and the Property Rights
and any of them being transferred hereunder. Thomas also agrees to reasonably
assist Wendy's in the enforcement of any rights in the Property Rights.
7.03. ASSIGNMENT. This Assignment Agreement may be assigned by Wendy's
to any of its Subsidiaries, Affiliates and/or Associates as it deems in its sole
opinion to be best for the operations of its business, provided such assignment
does not permit the use of the Thomas Persona apart from the business of
Wendy's. Wendy's shall not sell or assign rights to the Thomas Persona or any
Trademarks encompassing the Thomas Persona or any elements of it ("Thomas
Trademarks") in gross, i.e., apart from the ongoing business with which the
Thomas Persona or the Thomas Trademarks are then currently publicly associated
and shall not sell or assign such rights apart from the company named Wendy's
other than as herein provided. Any assignment permitted hereunder shall be made
only in the event that the assignee agrees in writing to be bound by the terms
and conditions of this Assignment Agreement, including without limitation the
covenants contained in Section III. Any attempted assignment in violation of
this Section 7.03 shall be null and void.
7.04. ENTIRE AGREEMENT. This Assignment Agreement, the License
Agreement and the other agreements, instruments and writings referred to herein
or delivered pursuant hereto contain the entire understanding of the parties
with respect to its subject matter; provided that nothing herein is intended to
affect nor shall be interpreted as affecting the terms and conditions
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of the Screen Actors Guild and/or other union agreements to which Thomas and
Wendy's are or may become parties as such agreements relate to the performance
of Thomas in Wendy's commercials and including his entitlement to payment for
such performances as provided by such agreements. Except as here specifically
provided, this Assignment Agreement supersedes all prior agreements and
understandings among the parties with respect to its subject matter and cannot
be modified except by a written instrument signed by the parties hereto.
7.05. SEVERABILITY. In the event that one or more of the provisions or
parts of a provision contained in this Assignment Agreement shall for any reason
be held to be invalid, illegal or unenforceable in any respect in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or part of a provision of this Assignment Agreement in that
jurisdiction or affect that provision in any other jurisdiction, but this
Assignment Agreement shall be reformed and construed in any such jurisdiction as
if such invalid or illegal or unenforceable provision or part of a provision had
never been contained herein and such provision or part shall be reformed so that
it would be valid, legal and enforceable to the maximum extent permitted in such
jurisdiction.
7.06. HEADINGS. The Article and Section headings contained in this
Assignment Agreement are for reference purposes only and will not affect in any
way the meaning or interpretation of this Assignment Agreement.
7.07. NOTICES. All notices, claims, certificates, requests, demands and
other communications hereunder will be in writing and will be deemed to have
been duly given if delivered personally, telecopied or mailed (registered or
certified mail, postage prepaid, return receipt requested) as follows:
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(a) If to Thomas:
R. David Thomas
One Bay Colony
Ft. Lauderdale, Florida 33308
with a copy to:
Greenberg Traurig, LLP
MetLife Building 200 Park Avenue
New York, NY 10166
Attn: Richard Rosenbaum, Esq. or Alan Sutin, Esq.
And
R. David Trust u/a dated 8/10/97
R. L. Richards, Trustee
5131 Post Road, Ste. 203
Dublin, Ohio 43017
(b) If to Wendy's:
Wendy's International, Inc.
4288 West Dublin-Granville Road
Dublin, Ohio 43017
Attention: General Counsel
or to such other address as the Person to whom notice is to be given may have
previously furnished to the other in writing in the manner set forth above.
7.08. LAW GOVERNING. This Assignment Agreement will be governed by, and
construed and enforced in accordance with, the laws of the State of Ohio without
regard to its conflicts of law rules, provided that this Assignment Agreement
shall in no event be construed to limit the applicability of any state statutory
or common law or federal law that grants protection to any element of the Thomas
Persona. The parties agree that any legal disputes or claims arising out of this
Assignment Agreement that are not required to be resolved according to the
provisions of this Assignment Agreement shall be brought in the state courts of
Franklin County, Ohio or, if jurisdiction is otherwise appropriate in the United
States District Court for the Southern District of Ohio in Columbus, Ohio.
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7.09. AMENDMENTS. This Assignment Agreement may not be modified,
amended, altered or supplemented, except upon the execution and delivery of a
written instrument duly executed or on behalf of each of the parties hereto.
7.10. COUNTERPARTS. This Assignment Agreement may be executed
simultaneously in counterparts, each of which will be deemed an original, but
all of which together will constitute one and the same instrument.
7.11. EFFECTIVE DATE. This Assignment Agreement shall become effective
on the date that all parties execute this Assignment Agreement (the "Effective
Date"). The assignments, sales and transfers contemplated herein shall be
effected, and the right to receive the Purchase Price shall be effective, as on
the Effective Date.
IN WITNESS WHEREOF, this Assignment Agreement consisting of these 22
pages has been duly executed and delivered by the parties hereto as of the date
first above written.
WENDY'S INTERNATIONAL, INC. R. DAVID THOMAS
By: /s/ John T. Schuessler By: /s/ R. David Thomas
------------------------------- -----------------------------
Name: John T. Schuessler Name: R. David Thomas
------------------------------- -----------------------------
Title: Chief Executive Officer & Title:
President
------------------------------- -----------------------------
Date: Date: 11/05/2000
------------------------------- -----------------------------
Acknowledged by:
I. LORRAINE THOMAS
By: /s/ I. Lorraine Thomas
------------------------------
Name: I. Lorraine Thomas
------------------------------
Date: 11/5/2000
------------------------------
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State of Florida )
) ss:
County of Broward )
Be it remembered, that before me, a Notary Public, in and for said
County personally appeared R. David Thomas who acknowledged that he did sign the
foregoing instrument and that the same is his free act and deed this 5 day of
Nov., 2000.
[SEAL]
/s/ Laura Treliving
-----------------------------------------------------
Notary Public
State of Florida )
) ss:
County of Broward )
Be it remembered, that before me, a Notary Public, in and for said
County personally appeared I. Lorraine Thomas who acknowledged that she did sign
the foregoing instrument and that the same is her free act and deed this
5 day of Nov., 2000.
[SEAL]
/s/ Laura Treliving
-----------------------------------------------------
Notary Public
State of Florida )
) ss:
County of Broward )
Be it remembered, that before me, a Notary Public, in and for said
County personally appeared John T. Schuessler of Wendy's International, Inc.,
who acknowledged that he/she did sign the foregoing instrument and that the same
is his/her free act and deed this 3rd day of November, 2000.
[SEAL]
/s/ Kimberly J. Spenn (Seaborn)
-----------------------------------------------------
Notary Public
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EXHIBIT A
DRAFT
-----
CHARITY LICENSE AGREEMENT
-------------------------
This Agreement, effective (Date ), is entered into by and between Wendy's
International, Inc., a corporation formed under the laws of Ohio, located at
4288 W. Dublin-Granville Road, Dublin, Ohio 43017 ("Licensor") and The Dave
Thomas Foundation for Adoption, a not for profit corporation of the State of
Ohio having its principal office at ____________ ("Licensee").
WHEREAS, Licensor is the owner of the proprietary rights in and to the name,
likeness and image (the "Thomas Persona") of Dave Thomas the founder of Wendy's
International, Inc. and in and to the trademarks of the names DAVE, DAVE THOMAS
and the image of DAVE THOMAS (the "Trademarks"); and,
WHEREAS, Licensee was founded by Dave Thomas and has been granted permission to
use the name DAVE THOMAS in the Trade Name DAVE THOMAS FOUNDATION FOR ADOPTION
(the "Trade Name") in its corporate title and has used the Thomas Persona and
the Trademarks (hereinafter collectively the "Property"), with permission, in
connection with the promotion of its charitable causes; and,
WHEREAS, the parties hereto desire to formalize the relationship between them as
Licensor and Licensee and to formally create a license agreement for the
continued use of the Trade Name and the Property for the future, recognizing the
valuable goodwill in the Trade Name and the Property that Licensor has created
in association with Dave Thomas himself and recognizing the need for there to be
continuing control over the proper use of the Trade Name and the Property by
both Licensor and Licensee.
NOW, THEREFORE, in consideration of the mutual promises of this Agreement, the
parties agree as follows:
1. LICENSEE'S STATED PURPOSE.
(a) Licensee's Status.
Licensee represents and warrants that its charter is as a
not-for-profit charitable organization and that its purpose and/or
mission is: "to help connect American children with loving families
through adoption." Licensee represents and warrants that it seeks and
intends to use the Trade Name and the Property in furtherance of its
purposes and mission and for no other purpose or reason.
(b) Changes in Licensee's Status.
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Licensee shall advise Licensor of any change Licensee makes in
its stated purpose and/or its mission statement.
2. GRANT OF LICENSE.
Licensor grants to Licensee a non-exclusive, royalty free right, with
no right to sub-license, to make use of the Property in association
with Licensee's Trade Name and its charitable activities, subject to
the terms and conditions of this Agreement. Licensor reserves any
rights, benefits and opportunities not expressly granted to Licensee
under this Agreement.
3. TERRITORY.
The license granted under this Agreement shall be worldwide.
4. TERM.
This Agreement shall begin on the effective date hereof, first written
above, and shall continue for such period of time Licensee desires to use the
Property; provided that Licensee fully complies with the terms hereof.
5. USE.
(a) Acknowledged Value.
Licensee acknowledges that the economic and financial value in
and of the Property is as a result of Licensor's careful, tasteful and
wholesome use of the Property in the advertising, promoting and
identifying of Licensor's products and services. Licensee agrees that
during this Agreement, and thereafter, it will not challenge or
otherwise contest the title or any rights of Licensor to the Property
or Licensor's right to control the use of the name DAVE THOMAS in
Licensee's Trade Name or the validity of the License herein being
granted.
(b) Limited Use.
Licensee's use of the Trade Name and/or Property shall be
solely in furtherance of its purpose and mission and for no other
reason.
(c) Approvals.
Any and all materials of any type or kind and directed to any
media or medium such as, but without limitation to, advertising,
solicitation, promotional or explanatory print, television, radio,
Internet material in which Licensee uses, proposes to use or references
the Trade Name and/or Property for any purpose must have the prior
approval of Licensor in accordance with the procedures herein set
forth.
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25
(e) No Right To Produce Product.
Nothing in this Agreement is intended to grant and nothing
herein shall be interpreted as granting any right to Licensee to make,
have made for it, produce or have produced for it or to sell any
products embodying the Trade Name and/or Property without the further
written approval of Licensor which approval Licensor may give at its
sole discretion and subject to whatever terms Licensor deems necessary.
6. QUALITY AND APPROVAL.
(a) Purpose of Quality Control.
Because of the importance and value of the name Dave Thomas in
the Trade Name and of the Property to Licensor as a result of its
investment in making the Property known and because of the care and use
of the Property by Licensor to create a friendly, wholesome and high
quality image in and for the Property, Licensee acknowledges and
understands the need for rigid quality control of its use of the Trade
Name and for any uses it may make of the Property. Therefore all uses
of the Trade Name and Property by Licensee must first be approved by
Licensor.
(b) Pre-Use Approvals.
Licensee shall submit in writing to Licensor a request for
approval and a pre-production specimen or sample of any materials using
or relating to the Trade Name and/or Property. Licensee shall not
produce or distribute any material using or relating to the Trade Name
and/or Property prior to obtaining Licensor's written approval of the
material. If Licensor fails to approve any pre-production submittal
within twenty (20) days after receipt of Licensee's submission, such
failure shall constitute a disapproval of the material and Licensee
shall not produce or distribute such materials.
(c) Production Approval.
Licensee shall submit in writing to Licensor for approval a
final "production" sample or specimen of all materials using or
relating to the Trade Name and/or Property immediately upon Licensee's
receipt of the materials for distribution, but prior to the
distribution of the materials. Licensor shall promptly give its written
approval of such production materials. Failure of Licensor to give its
written approval shall constitute disapproval of the production
material.
(d) Quality Maintenance.
Licensee shall maintain the same quality in the materials
produced relating to the Trade Name and/or Property as in the samples
approved by Licensor. If during the term of this Agreement there is to
be any change in the materials relating to the Trade Name and/or
Property after the approval of production samples, Licensee must comply
with the
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provisions of Paragraph 6(b) and Paragraph 6(c) for such material
before its production and/or distribution.
(e) Cooperation of the Parties.
The parties hereto contemplate that the approvals of Licensor
will not be unreasonably withheld and that the parties will cooperate
and work together to see to it that all deadlines of the Licensee for
the release of its materials is met with approval. It is, however,
further understood that the approvals shall be granted by Licensor as
it in its sole discretion believes appropriate, in view of the value of
the Trade Name and Property to Licensor and the extensive investment it
has in the Property.
7. LICENSOR'S USE OF THE TRADE NAME AND PROPERTY.
(a) Community Standards.
The parties recognize that the activities of the Licensee
require that Licensor not demean the Trade Name or Property. Therefore,
Licensor agrees that its use of the Trade Name and Property shall
always be in good taste and within the standards of the community as a
whole. The parties agree that the standards of the community shall be
those of the Greater Columbus, Ohio area.
(b) Dispute Of Parties As To Licensor's Use.
In the event that Licensor adopts a use of the Trade Name or
Property that the Licensee believes disparages or brings disrepute to
the Trade Name or Property and/or the heirs of Dave Thomas or to the
Licensee, the Licensee shall demand in writing that Licensor cease such
use of the Trade Name or Property. If Licensee does not have a written
response from Licensor assuring Licensee that the use complained of by
Licensee will cease within ten days from the date of receipt of the
Licensee's complaint; or if Licensor disagrees with Licensee that the
use is disparaging of or brings disrepute to the Trade Name, Property,
the heirs of Dave Thomas or Licensee, then the Licensee or Licensor may
convene the Community Standard Committee to act as arbitrators to
decide the sole issue of whether, within the community standards, the
use of the Trade Name or Property by Licensor disparages or brings
disrepute to the Trade Name or Property, the heirs of Dave Thomas or
Licensee.
The community standard that shall guide the arbitrators is the
standards of the greater Columbus, Ohio area at the time the issue
arises. Greater Columbus shall be defined as Columbus, Ohio and all
communities within a 20-mile radius of the Ohio State capital building
at its location as of January 1, 2000.
The Standards Committee shall consist of a total of five (5)
members reflecting the community at large, including one representative
appointed from the Columbus Bar Association ("CBA"), one representative
from the Columbus, Ohio Chamber of Commerce; one representative from
the Columbus, Ohio chapter of the Council of
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27
Christians and Jews, and two members at-large, appointed by the
Franklin County Probate Court from the Greater Columbus, Ohio
community. The Court shall assure by its selection that Standards
Committee shall at all times include at least one member that is a
racial minority and shall contain members of different sexes. The
Columbus Bar Association committee member shall be designated as the
Chairman of the Standards Committee.
(c) Purpose and Governing Standard.
The Standards Committee's purpose shall be to determine that
the uses of the Thomas Persona by Licensor comports with the community
standards as represented by the Greater Columbus, Ohio community.
(d) Standards Committee Endowment.
Licensor shall initially endow the Standards Committee in an
amount of not less than one hundred and fifty thousand dollars (US
$150,000) which amount shall be placed in a trust account at the
_____bank in Columbus Ohio (the "Endowment Fund") and the interest
accrued thereon paid to Licensor annually or, at Licensor's sole option
added to the principle in the trust account. Licensor shall see that
the trust amount is adjusted for inflation annually so that the trust
amount remains at purchasing level equivalent to $150,000.00 in the
year 2000. The Endowment Fund may be used as the Standards Committee
deems reasonably appropriate including payment of an hourly rate to its
members in the amount that they would charge clients or customers of
their regular services, but in no instance more than $250.00 per hour
in the year 2000. The Endowment Fund may be used to pay for the
services of a secretary as, if and when needed. Moreover, in the event
a dispute arises between the Foundation and Licensor and the Procedure
outlined herein is instituted, and the Standards Committee, in its sole
discretion, determines that legal and/or expert advice is necessary for
it to present its position, Endowment Fund money may be used for such
purposes and shall be immediately replenished by Licensor so that the
initial amount is always available to the Standards Committee at any
given time. It is contemplated by the parties hereto that the Standards
Committee will only rarely need to convene. Licensee and Licensor each
shall use their best efforts to resolve all issues with respect to the
disputed use between themselves.
(e) Dispute Resolution.
If the parties hereto are unable to reach a resolution with
respect to the disputed use, they may present the matter to the
Standards Committee for determination upon procedures that are
determined by the Standards Committee which the parties hereto
recommend should follow recognized arbitration proceeding procedures
streamlined to the greatest extent possible to provide for as expedient
and inexpensive resolution as possible.
The decision of a majority of the Standards Committee shall be
binding and final.
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The decision shall be enforceable, if need be, by the United
States District Court for the Southern District of Ohio, Eastern
Division. It is understood and agreed that the sole issue before the
Standards Committee panel and the only decision of the Committee that
can be enforced and, if enforced, the only injunction that may issue
from the court, shall be restricted to the particular use of the Trade
Name or property that is deemed to be in violation of the community
standard and no broader issue or matter is to be considered by the
Community Standards Committee.
8. OWNERSHIP OF RIGHTS.
(a) Licensor is the Sole and Exclusive Owner.
Licensee agrees and understands that Licensee has no right to
apply for or register the Trade Name and/or Property as a trademark,
service mark, membership mark, certification mark or collective mark
but that Licensor may apply for and register the Trade Name and/or
Property for any or all of those activities of Licensee under any
federal or state statutes now in existence or enacted in the future for
the protection of intellectual property including, but not limited to,
trademarks and publicity or persona rights. Licensee acknowledges,
agrees and understands that its use of the Trade Name and/or Property
inures to the benefit of Licensor.
(b) Other Licenses.
Licensee recognizes that Licensor may already have entered
into, and may in the future enter into, license agreements with respect
to the Trade Name and/or Property for use by other charitable
organizations on or in materials for the promotion of those Licensees'
organizations and on or in similar materials as referenced in this
License.
(c) No Use of Licensor's Name.
Nothing herein is intended to grant and nothing herein shall
be interpreted as granting any rights to Licensee to use and Licensee
shall not use Licensor's name or the Property other than as permitted
or acknowledged hereunder. Licensee shall not represent that it has any
rights to the Trade Name and/or Property other than those expressly
granted under this Agreement. Licensee shall not use and/or authorize
the use, either during or after the Term of this Agreement, except as
provided herein, any configuration, trademark, trade name or other
designation confusingly similar to the Trade Name and/or Property
and/or the Licensor's name.
9. INFRINGEMENTS.
Licensee shall assist Licensor in the enforcement of any rights of
Licensor in the Trade Name and/or Property. Licensor may, at its sole cost and
expense, commence or prosecute any claims or actions in its own name or in the
name of Licensee or join Licensee as a party thereto. Licensee shall notify
Licensor in writing of any infringements by third parties of the Trade Name
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and/or Property that may come to Licensee's attention. Licensor shall have sole
right to determine whether any action shall be taken on account of any
infringement. Licensee shall not contact the third party, make any demands of
claims, institute any suit or take any other action on account of such
infringements without first obtaining the prior written permission of Licensor.
All costs and expenses, including attorneys' fees, incurred in connection with
any suit instituted by Licensee without the consent of Licensor shall be borne
solely by Licensee.
10. COOPERATION WITH LICENSOR.
(a) Intellectual Property Protection.
Licensee agrees to cooperate with Licensor in any intellectual
property protection of the Trade Name and/or Property by Licensor that
Licensor may desire to file or in the conduct of any litigation
relating to the Trade Name and/or Property. Licensee shall, upon
Licensor's request, supply to Licensor such samples of materials using
the Trade Name and/or Property as Licensee may have, shall give
testimony and cooperate with Licensor as may reasonably be required in
connection with any such protection activity.
(b) Rights Are Licensor's.
Licensee shall not at any time apply for any copyright,
trademark or patent protection which would affect Licensor's ownership
of any rights in the Trade Name and/or Property nor file any documents
with any governmental authority or take any other action which could
affect Licensor's ownership of the Trade Name and/or Property, or aid
or abet anyone else in doing so.
(c) Choice of Counsel.
With respect to all claims and actions, including actions in
which Licensee is joined as a party, Licensor shall have the sole right
to employ counsel of its choosing and to direct handling of the
litigation and any settlement thereof. Licensor shall be entitled to
receive and retain all amounts awarded as damages, profits or otherwise
in connection with such actions.
11. TRADEMARK AND COPYRIGHT OWNERSHIP AND NOTICES.
(a) Legends.
All materials shall contain appropriate legends, markings
and/or notices as required from time to time by Licensor, to give
notice to the public of Licensor's right. The following legend shall
appear at least once in each piece of material produced:
The name of Dave Thomas and the persona of Dave Thomas are
trademarks of and used under license from Wendy's
International, Inc.
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(b) Copyrights.
Licensor and Licensee agree and intend that all artwork,
video, film, dialogue or other copyrightable works embodying the Trade
Name and/or Property created by Licensee or any other person or entity
and used with the Trade Name and/or Property shall be the property of
Licensor, which shall be entitled to use and license others to use such
works subject to the provisions of this Agreement. Licensee shall
assign to Licensor the copyright in such works and shall execute any
additional documents proposed by Licensor to effectuate and confirm
Licensor's sole and exclusive ownership of all copyright in and to such
works, and Licensee irrevocably appoints Licensor as its
attorney-in-fact to execute any and all such documents if Licensee
fails to return executed copies of such documents to Licensor within
five (7) working days following Licensor's submission of them to
Licensee.
12. TERMINATION.
This Agreement shall terminate upon the dissolution of the Licensee as
a not-for-profit corporation or upon the change of the purpose or mission
statement of the Licensee to a purpose antithetical to the interests of Licensor
or the standards of the community. In the event of such change of purpose by
Licensee, Licensor may notify Licensee, in writing, of the termination of the
Agreement. Licensee shall confirm in writing to Licensor, within ten days of the
date of the Licensor's written notice of termination, Licensee's full cessation
of the use of the Trade Name and/or Property. In the event the Licensee does not
cease its use of the Trade Name and/or Property, Licensor may file suit and seek
an Order of the court, enjoining all further use of the Trade Name and/or
Property by the Licensee and seeking all other relief to which it is entitled
under any state or federal law.
13. INDEMNITY AND INSURANCE.
(a) Claims Against Licensor.
Licensee acknowledges that it will have no claims against
Licensor for any damage to property or injury to persons arising out of
the operation of Licensee's business. Licensee agrees to indemnify,
hold harmless and defend Licensor with legal counsel acceptable to
Licensor from and against all demands, claims, injuries, losses,
damages, actions, suits, causes of action, proceedings, judgments,
liabilities and expenses, including attorneys' fees, court costs and
other legal expenses, arising out of or connected with the Licensee's
use of the Trade Name and/or Property.
(b) Insurance.
Licensee shall obtain and maintain during the term of this
Agreement comprehensive general liability insurance coverage naming
Licensor as additional insured. Such insurance shall be underwritten by
insurers satisfactory to Licensor and shall be written for limits of
not less than $2,000,000 each occurrence combined, for bodily injury,
including death and property damage. Licensee shall furnish Licensor
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promptly upon the execution of this Agreement with a certificate of
insurance stating thereon the limits of liability, the period of
coverage, the parties insured (including Licensee and Licensor), and
the insurer's agreement not to terminate or materially modify such
insurance without endeavoring to notify Licensor in writing at least
ten (10) days before such termination or modification. Coverage
provided for Licensor shall be primary, and any insurance maintained by
Licensor shall be in excess and not contributing with any insurance
provided by Licensee. Coverage shall be on an occurrence rather than a
claims made basis. In no event shall Licensee make any use of the
Property before Licensor's receipt of such insurance certificate.
(c) Copyright Permission.
Licensee has the responsibility to procure legally sufficient
permission from the copyright owners of photographs, illustrations
and/or artwork used in conjunction with materials using the Property.
Licensee indemnifies and holds Licensor harmless from any and all
claims made by third parties with respect to copyrighted material used
by Licensee.
14. NOTICE.
Notices provided for herein shall be considered effectively given when
sent by Certified Mail, in the case of Licensor, to:
Wendy's International, Inc.
Attn: General Counsel
4288 W. Dublin-Granville Road
Dublin, Ohio 43017
and, in the case of Licensee, to:
The Dave Thomas Foundation
Attn: Director
15. ASSIGNMENT AND SUBLICENSE.
The license granted hereunder is personal to Licensee, and Licensee
shall not assign, transfer or sub-license any of its rights under this Agreement
or delegate any of its obligations under this Agreement (whether voluntarily, by
operation of law, change in control or otherwise) without Licensor's prior
written approval. Any attempted assignment, transfer, sublicense or delegation
by Licensee without such approval shall be void and a material breach of this
Agreement. Subject to the foregoing, this Agreement will be binding upon, and
inure to the benefit of, the parties and their respective successors and
assigns.
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16. INDEPENDENT CONTRACTOR.
Licensee is an independent contractor and not an agent, partner, joint
venturer, affiliate or employee of Licensor. No fiduciary relationship exists
between the parties. Neither party shall be liable for any debts, accounts,
obligations or other liabilities of the other party, its agents or employees.
Licensee shall have no authority to obligate or bind Licensor in any manner.
Licensor has no proprietary interest in Licensee and has no interest in the
business of Licensee, except to the extent expressly set forth in this
Agreement.
17. SEVERABILITY.
If any provision of this Agreement shall be determined to be illegal
and unenforceable by any court of law or any competent governmental or other
authority, the remaining provisions shall be severable and enforceable in
accordance with their terms so long as this Agreement without such terms or
provisions does not fail of its essential purpose or purposes. The parties will
negotiate in good faith to replace any such illegal or unenforceable provision
or provisions with suitable substitute provisions that will maintain the
economic purposes and intentions of this Agreement.
18. MISCELLANEOUS.
(a) Captions.
The captions for each Paragraph have been inserted for the
sake of convenience and shall not be deemed to be binding upon the
parties for the purpose of interpretation of this Agreement.
(b) Scope and Amendment of Agreement.
This Agreement constitutes the entire agreement between the
parties with respect to the subject matter of this Agreement,
supersedes any and all prior and contemporaneous negotiations,
understandings or agreements in regard to the license of the Trade Name
and/or Property and is intended as a final expression of their
Agreement.
(c) Governing Law.
This Agreement will be deemed to have been executed in the
State of Ohio and will be construed and interpreted according to the
laws of that State without regard to its conflicts of law principles or
rules. The parties agree that any legal action or proceeding with
respect to this Agreement shall be brought in the United States
District Court for the Southern District of Ohio, Eastern Division, or,
if such court does not have jurisdiction, in any court of general
jurisdiction in the County of ______, Ohio. Licensee consents to the
personal jurisdiction of such courts, agrees to accept service of
process by mail and hereby waives any jurisdictional or venue defenses
otherwise available to it.
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(c) ADVICE OF COUNSEL.
Each of the parties hereto has entered into this Assignment
Agreement with the advice of counsel of its own choosing and
understands its rights and obligations under this Assignment Agreement.
(e) Interpretation.
The parties agree that each party and its counsel has reviewed
this Agreement and the normal rule of construction that any ambiguities
are to be resolved against the drafting party shall not be employed in
the interpretation of this Agreement.
(f) Waiver.
The failure of Licensor to insist in any one or more instances
upon the performance of any term, obligation or condition of this
Agreement by Licensee or to exercise any right or privilege herein
conferred upon Licensor shall not be construed as thereafter waiving
such term, obligation, or condition, or relinquishing such right or
privilege, and the acknowledged waiver or relinquishment by Licensor of
any default or right shall not constitute waiver of any other default
or right. No waiver shall be deemed to have been made unless expressed
in writing and signed by the General Counsel of Licensor.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their authorized representatives on the dates indicated below.
LICENSOR LICENSEE
Wendy's International, Inc. The Dave Thomas Foundation for Adoption
By:_________________________________ By:_____________________________________
Date:_______________________________ Date:___________________________________
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SCHEDULE A
R. DAVID THOMAS
Sr. Chairman and Founder
Wendy's International, Inc.
HONORARY DEGREES
----------------
Doctorate of Law, Duke University
Honorary Professor, Baylor University
Doctorate of Law, Northwood Institute
Doctorate of Human Letters, Hawthorne College
Honorary Doctorate of Law, Hanover College
Honorary Doctorate of Humanities, Clemson University
Honorary Doctorate of Commerce, St. Mary's University, Halifax, Nova Scotia
Honorary Doctorate of Law, Franklin University, Columbus, Ohio
Honorary Doctorate of Humane Letters, Jacksonville University
Honorary Doctorate of Business Administration, The Ohio State University
Honorary Doctorate of Humanities, Capital University, Columbus, Ohio
Honorary Doctorate of Humane Letters, Univ. Massachusetts Medical Center, Boston
EDUCATION
---------
Achieved GED certificate and high school diploma in 1993, Ft. Lauderdale,
45 years after leaving high school
RESTAURANT AND BUSINESS AWARDS
------------------------------
Restaurant Industry Man of the Year (MUFSO) -- 1977
Horatio Alger Award -- 1979
Silver Plate Award from the Restaurant Industry (IFMA) -- 1979
Ohio Governor's Award -- 1982
International Leadership Award for Business Entrepreneurship -- 1982
Businessman of the Year, Tiffin University
Businessman of the Year, Northwood Institute -- 1985
Entrepreneur of the Year, Students in Free Enterprise -- 1985
Entrepreneur of the Year, Southern Illinois University
Entrepreneur of the Year, Duke University -- 1986
Entrepreneur of the Year, Wichita State University
Entrepreneur of the Year, University of Akron -- 1987
Junior Achievement Hall of Fame, Central Ohio JA -- 1988
Sales Executive of the Year, Columbus Chamber of Commerce -- 1990
Entrepreneur of the Year, Inc. Magazine -- 1991
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RESTAURANT AND BUSINESS AWARDS (continued)
------------------------------
Leadership Award, RESTAURANT BUSINESS Magazine -- 1992
Junior Achievement Columbus Hall of Fame, Columbus, Ohio -- 1992
Entrepreneur of the Year Award, Florida International University -- 1993
Hall of Fame Award, International Franchise Association -- 1993
Diplomate Award, National Restaurant Association -- 1995
Junior Achievement Business Hall of Fame, Dubuque, IA -- 1995
Career Achievement Award, Henry Ford Health System Foundation -- 1995
Pioneer Award, MUFSO --- 1995
International Prize, James Madison Institute for World Capitalism -- 1996
Lifetime Achievement Award, National 4-H Association -- 1997
Consumers Choice Businessman of the Year -- 1998
Junior Achievement National Business Hall of Fame -- 1999
Adam Smith Award for Enterprise, Hillsdale College -- 1999
HUMANITARIAN AWARDS AND OTHER HONORS
------------------------------------
Kentucky Colonel Award
Michael F. Tamer Distinguished Service Award, St. Jude's
Children's Hospital -- 1979
Governor's Award, State of Ohio -- 1982
Americanism Award, Anti-Defamation League of B'Nai B'rith -- 1986
State of Israel 40th Anniversary Medal, Israel Bonds -- 1988
Spokesman for President Bush's Adoption Initiative, "Adoption Works . . . For
Everyone"
National Council for Adoption Hall of Fame -- 1990
Arkansas Traveler Award, State of Arkansas -- 1991
National Voice for Children Award, Florida Children's Home Society -- 1991
Founders Award for Service To Youth, Directions For Youth (Columbus) -- 1991
Ballington and Maud Booth Award, Volunteers of America -- 1992
Service Leadership Award, Rochester Institute of Technology -- 1992
Humanitarian Award, Variety Club of Memphis -- 1992
Defender of Freedom Award, Enterprise Ambassador Program, Nova University --
1992
Master Mason of the Year, Sol D. Bayless Lodge (Ft. Wayne, IN) -- 1992
Man of the Year, Juvenile Diabetes Foundation International -- 1993
Service to Children Award, Adoptive Families of America -- 1993
Good Scout Award, Boy Scouts of America -- 1993
Georgia Torchlight Award for Literacy -- 1994
Natalie Heineman Award for Outstanding Service to Children, Child
Welfare League of America -- 1994
Distinguished Achievement Award, Masonic Grand Lodge of New York - 1994
National Hero Award, Big Brothers/Big Sisters -- 1994
Humanitarian Award, NAACP -- 1994
Alison Award, National Adoption Center -- 1994
National Caring Award, National Caring Institute -- 1994
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HUMANITARIAN AWARDS AND OTHER HONORS (continued)
------------------------------------
Honorary Texas Ranger Commendation -- 1994
Adoption Education Award, Family Resource Center -- 1994
Adoption Hall of Fame, AASK/Texas -- 1994
Norman Vincent Peale Award for Positive Thinking -- 1995
Child Advocate of the Year, North American Council on Adoptable Children -- 1995
Service to Mankind Award, Columbus Sertoma -- 1995
33(Degree) of the Ancient and Accepted Scottish Rite of Free Masonry -- 1995
Sonia Strumpf Award, Queens Child Guidance Center, New York -- 1996
Chairperson's Award of Honor, United Methodist Association -- 1996
Humanitarian Award, Temple Israel, Columbus, Ohio -- 1996
President's Award, Court Appointed Special Advocates -- 1996
Father of the Year, Father's Day Council of South Florida -- 1996
Indiana Pathfinders Award, Youthlinks Indiana -- 1996
Families are Golden Award, Spaulding for Children -- 1996
Crystallus Award, St. Coletta's Home, Chicago -- 1996
Olympic Torchbearer, 1996 Olympic Games (carried in Dublin, Ohio)
Ohio Veterans Hall of Fame -- 1996
Guiness Book of World Records, "Longest Running TV Advertising Campaign,
Starring Company Founder" -- 1996
Golden Blooper Award, Dick Clark Productions -- 1996
Child Advocate of the Year, Starr Commonwealth -- 1997
Grand Cross, Court of Honour - Scottish Rite -- 1997
Grand Master's Community Service Award, Grand Lodge of Ohio -- 1998
Golden Heart Award for Community Service, American Heart Association of
Broward County (presented to Dave & Lorraine Thomas) -- 1998
Parenting Leader Award, PARENTING MAGAZINE -- 1999
Distinguished Service Award, Ohio Council of Retail Merchants -- 1999
Martha S. Wilkinson Award for Literacy, Kentucky -- 2000
Univ. Massachusetts Chancellor's Award -- 2000
COLLEGE BOARDS
--------------
Duke University, Durham, North Carolina
Nova Southeastern University, Fort Lauderdale, Florida
OTHER ORGANIZATIONS
-------------------
Ancient and Accepted Scottish Rite of Free Masonry
First Baptist Church of Fort Lauderdale, Fort Lauderdale, Florida
Screen Actors Guild
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GOLF & COUNTRY CLUBS
ATHLETIC & SOCIAL CLUBS
-----------------------
Adios Golf Club, Deerfield Beach, Florida
Athletic Club of Columbus, Columbus, Ohio
Buckeye Lake Yacht Club, Buckeye Lake, Ohio
The Capital Club, Columbus, Ohio
Coral Ridge Country Club, Fort Lauderdale, Florida
Firestone Country Club, Akron, Ohio
Granite Woodlands Golf Club, Columbia, South Carolina
The Lakes Golf and Country Club, Westerville, Ohio
Lighthouse Point Yacht Club, Fort Lauderdale, Florida
Muirfield Village Golf Club, Dublin, Ohio
New Albany Country Club, New Albany, Ohio
Ocean Reef Club, Key Largo, Florida
The Olde Farm, Bristol, Virginia
Scioto Country Club, Columbus, Ohio
Treyburn Country Club, Durham, North Carolina
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