License Agreement - King Features Syndicate Inc., Hearst Corp., Popeyes Inc. and A. Copeland Enterprises Inc.
LICENSE
THIS LICENSE made this 19th day of December, 1985 by and between:
KING FEATURES SYNDICATE, INC.
235 East 45th Street
New York, New York 10017
("King Features")
and
THE HEARST CORPORATION,
King Features Syndicate Division
235 East 45th Street
New York, New York 10017
("Hearst")
and
POPEYES, INC.
A Louisiana corporation,
1333 South Clearview Parkway
Jefferson, Louisiana 70121
("Popeyes")
and
A. COPELAND ENTERPRISES, INC.,
A Louisiana Corporation
1333 South Clearview Parkway
Jefferson, Louisiana 70121
("Copeland")
WHEREAS, King Features is the owner of the copyright in the characters
contained in a cartoon strip entitled "Popeye," including their names, pictures,
likenesses, images, symbols, caricatures, cartoons and signatures (hereinafter
collectively referred to as "Popeye cartoon"); and
WHEREAS, the first cartoon featuring the Popeye character was published
January 17, 1929 under the title "The Thimble Theater-Now Showing Gobs of Work"
and the copyright therein was duly registered by King Features Syndicate, Inc.,
a predecessor in interest of the present King Features under certificate C1.K5,
No. 36345, and renewed, by King Features under R164,887, for a term ending
December 31, 2004; and
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WHEREAS, the Popeye cartoon has been published from time to time in
various forms and media and the copyright therein has been duly registered by
King Features or its predecessor in interest; and
WHEREAS, King Features is a wholly owned subsidiary of Hearst and has
granted to Hearst certain rights to license the copyrights which King Features
owns; and
WHEREAS, Hearst granted A. Copeland Enterprises, Inc., a Louisiana
corporation, ("Copeland") a license on March 24, 1976 to the sole and exclusive
right in the U.S. to use the copyrighted Popeye cartoon in its business and
trade, and the advertising thereof, which is described as the operation and
supply and franchising the operation of restaurants specializing in the sale of
food items such as fried chicken, french fries and other prepared or packaged
food or food ingredients (hereinafter "Trade and Business"); and
WHEREAS, Popeyes is the successor of Copeland's rights under the March
24, 1976 license from Hearts, Popeyes having agreed to perform and be bound by
all of the covenants, conditions and obligations therein; and
WHEREAS, Popeyes is desirous of having a written license to reflect its
rights under the aforesaid agreement for recording in the Copyright Office
pursuant to 17 U.S.C. 205; and
WHEREAS, Copeland is desirous of having said written license recorded in
the Copyright Office.
NOW, THEREFORE, good and valuable consideration being extant, it is
hereby agreed by and between the parties that:
1. The parties ratify and confirm that Popeyes has the sole
exclusive right in the United States to use the Popeye cartoon in its Trade and
Business and in the advertising thereof pursuant to a license from Hearst under
copyright certificate C1.K5, No. 363,887, and the subsequent registrations of
the copyright of the Popeye cartoon obtained by King Features.
2. The rights of Popeyes to use the Popeye cartoon are subject to
and limited by the terms and conditions of the March 24, 1976 license.
3. The term of this license shall be for one (1) year and shall be
automatically renewed from year to year as of January 1st of each year, provided
that Popeyes has performed all of the terms and conditions set forth in the
March 24, 1976 agreement, and that it is not in default or breach of the
agreement.
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Notwithstanding anything to the contrary, however, Popeyes may terminate this
license on ninety (90) days' written notice.
4. As a material condition of this license, Popeyes shall properly
affix to each reproduction of the Popeye cartoon or any part thereof licensed
hereunder such due notice of copyright in the name of King Features Syndicate,
Inc., (or any other such name as is furnished to Popeyes in writing by Hearst),
as is provided by the Universal Copyright Convention, such as "(C) By King
Features Syndicate, Inc." and including in such notice as part thereof the
proper year of years.
5. Upon the happening of any one of the following events, Hearst
shall have the option to terminate this agreement forthwith:
A. The filing by Popeyes of a petition in bankruptcy.
B. The filing against Popeyes of a petition in bankruptcy
and the failure of it to take affirmative action within sixty (60) days
to have such petition dismissed.
C. The making by Popeyes of a general assignment for the
benefit of its creditors.
D. The involuntry appointment of a receiver or trustee of
all or substantially all of Popeyes' assets and the failure of Popeyes
to take affirmative action within sixty (60) days to have such
appointment dismissed.
E. The application for relief by Popeyes under any
insolvency law.
F. The liquidation in whole or in part of Popeyes'
business.
6. The rights granted pursuant to the March 24, 1976 agreement and
ratified herein are personal to Popeyes and its subsidiary corporations, and may
not, in whole or in part, be transferred or assigned without Hearsts' prior
written consent, which will not be unreasonably withheld. However, Popeyes
shall have the right to sublicense its rights hereunder to its franchisees
provided said franchisees are also bound by the same quality obligations imposed
on Popeyes under the March 24, 1976 license and hereunder. Notwithstanding the
foregoing, nothing in this paragraph shall relieve Popeyes of its obligations
under this agreement or the March 24, 1976 license.
7. Except as otherwise provided herein, Hearst and King Features
warrant and represent they have not heretofore granted nor will they hereafter
grant any rights inconsistent with or in
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direct conflict with those granted herein. King Features further warrants and
represents that it is the copyright proprietor of the Popeye cartoon. It is
understood that no warranty or representation is made by Hearst or King Features
with regard to the use of the name WIMPY or variations thereof and the use of
said name may subject Popeyes to legal liability.
8. Nothing herein contained shall be deemed to create a
partnership, joint venture or other similar relationship between the parties.
9. Popeyes has no right to use the Popeye cartoon or any part
thereof or equivalent thereto except to the extent expressly permitted
hereunder. Popeyes shall have no right hereunder to reproduce, use or sell, or
cause to be sold, reproductions of the Popeye cartoon or any part thereof,
either alone or in combination with any product or thing offered for sale or
resale, except as specifically authorized for the purposes of its Business and
Trade with respect to the described operation of the restaurant business.
10. Upon termination of this agreement, Popeyes will not in any way
or manner in connection with the sale of any product, service or thing use or
cause to be used, directly or indirectly, the Popeye cartoon or any part, name
or element thereof as licensed herein. However, nothing herein shall be
construed to require the discontinuance of the POPEYES mark for restaurant
services and food products by Popeyes after this agreement is terminated.
11. Any and all rights in and to the Popeye cartoon and characters
not expressly granted to Popeyes are reserved to Hearst and King Features and
any one or more of these said rights may be exercised or enjoyed by Hearst and
King Features, directly or indirectly at any and all times.
12. This agreement, coupled with the March 24, 1976 agreement, sets
forth the entire understanding of the parties and may not be modified or waived,
in whole or in part, except in writing signed by the party against whom such
modification or waiver is sought to be enforced. There are no warranties,
representations or promises other than those expressly set forth herein or in
the March 24, 1976 agreement.
13. This agreement shall be construed in accordance with and
governed by the laws of the states of America, state of New York.
14. This agreement shall be binding upon and inure to the benefit of
The Hearst Corporation and its successors and assigns.
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15. Copeland guarantees that Popeyes shall fully perform all of the
covenants, conditions and obligations, contained in the March 24, 1976 license
and in this agreement.
16. In the event of the declaration by a judicial tribunal having
jurisdiction over the parties of the invalidity of any portion of this
agreement, such decision shall not affect the remaining portion, which shall
remain and continue in full force and effect.
IN WITNESS WHEREOF, the parties have executed this agreement to be
effective the month, day and year first above written.
THE HEARST CORPORATION, KING FEATURES SYNDICATE, INC.
King Features Syndicate Division
BY /s/ BY /s/
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TITLE: President TITLE: President
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A. COPELAND ENTERPRISES, INC. POPEYES, INC.
BY /s/ Alvin C. Copeland BY /s/
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Alvin C. Copeland
TITLE: President TITLE: President
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Chairman
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