This excerpt taken from the GMCR 10-K filed Dec 11, 2008.
(a) KRAFT may not assign or otherwise transfer any of its rights, duties or obligations under this AGREEMENT to any third party at any time without the prior written consent of KEURIG. Notwithstanding the immediately preceding, KRAFT shall have the right to assign or otherwise transfer its rights, duties, or obligations under this AGREEMENT, without KEURIGs prior written consent, as part of the sale of its entire business, its beverage business, its coffee business, or its on demand coffee business, or, in relation to the foregoing, any part thereof, on either a worldwide or country by country basis. To the extent that KEURIGs consent is necessary for such assignment or transfer as part of the sale of its entire business, its beverage business, its coffee business or its on demand coffee business or, in relationship to the foregoing, any part therof, on either a worldwide or country basis, KEURIG hereby agrees to provide such consent.
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(b) Any assignment of KEURIGs rights in the LICENSED PATENTS and/or its obligations under this AGREEMENT shall include a provision that the assignment is subject to KRAFTs license and KEURIGs obligations under this AGREEMENT and require that the assignee accept in writing KRAFTS license and KEURIGs obligations under the AGREEMENT. Any assignment that does not include the required provision shall be void. Likewise, if KEURIG fails to obtain the assignees written acceptance of KRAFTs license and KEURIGs obligations under the AGREEMENT, the assignment is void.
11. Confidentiality. The PARTIES shall maintain the terms of the AGREEMENT in confidence and shall not publicize or disclose the terms in any manner whatsoever. Notwithstanding the foregoing, the PARTIES may disclose the terms of the AGREEMENT to the limited extent required by law, including but not limited to their filings at the United States Securities and Exchange Commission. In any such disclosure the disclosing PARTY shall not include any commentary or make any characterization regarding the litigation and settlement thereof, except to the extent required by law in the opinion of the disclosing PARTYs attorneys, accountants, auditors, tax preparers, or financial advisors. For purposes of clarity, Green Mountain Coffee Roasters Inc. (GREEN MOUNTAIN), the parent company of KEURIG, intends to disclose the AGREEMENT in an SEC Form 8-K Current Report and to attach a copy of the AGREEMENT to GREEN MOUNTAINS next 10-Q Report. Nothing herein shall prohibit such disclosure. The PARTIES may also disclose the AGREEMENT and the terms thereof to their attorneys, accountants, auditors, tax preparers, financial advisors and other agents to the limited extent they have a need to know the terms in order to perform their professional duties. KEURIG may also issue a press release limited to the following content: (1) an announcement that the litigation between KEURIG and KRAFT has been settled and a license granted by KEURIG to KRAFT; (2) the amount of the payment hereunder; and (3) a statement shall be included that The Parties believe that the settlement is an efficient and pragmatic way to resolve their patent dispute. Both parties agree that it is in the best interest of their respective businesses and shareholders to avoid the cost and uncertainties of continued litigation. KEURIG may also include a statement that KEURIG continues to invest in research and development and the value of its intellectual property portfolio. Furthermore, the PARTIES may also disclose the LICENSE grant in Section 3, the Marking provisions in Section 5, the Assignability provisions in Section 10 and the Mutual Release provisions in Section 21 to the limited extent necessary to inform a third party that a product is licensed under the LICENSED PATENTS, or that past claims are released, in order to obtain the cooperation of a third party to mark brewers, or in KRAFTs pursuit of a sale of its whole business, or its beverages business, or its coffee business, or its on-demand coffee business, or, in relationship to the foregoing, any part therof, on either a worldwide or country basis, or KEURIGs assignment of rights in the LICENSED PATENTS and/or its obligations under the AGREEMENT.
12. Construction. The PARTIES acknowledge that this AGREEMENT is the result of negotiations between the PARTIES and therefore shall be interpreted fairly in accordance with its terms and without any construction in favor of or against either PARTY. The titles of the paragraphs herein are for the convenience of reference only and shall not affect the construction of this AGREEMENT.
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13. Effective Counsel. KEURIG and KRAFT have had all desired counsel, legal and otherwise, in entering into this AGREEMENT, and do so in accordance with their own free acts and deeds.
14. Controlling Law and Jurisdiction. This AGREEMENT shall be construed and interpreted in accordance with the laws of the State of Delaware without reference to its principles of conflicts of laws. Each PARTY irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts in the State of Delaware to enforce the terms of this AGREEMENT and to resolve all disputes hereunder. In the event that any controversy or claim arises relating to this Agreement, the PARTY identifying the controversy or making the claim shall, as a prerequisite to filing a lawsuit, give written notice of the controversy or claim to the other PARTY. Thereinafter, the General Counsels (or the equivalent officers) of the PARTIES shall meet and attempt, in good faith, to resolve said controversy or claim. If the General Counsels (or the equivalent officers) of the PARTIES are unable to resolve the controversy or claim within sixty (60) days after written notice, the PARTIES agree to submit the controversy or claim to mediation, all prior to the filing of a lawsuit.
15. Merger and Modification. This AGREEMENT constitutes the entire agreement by and between the PARTIES concerning the subject matter hereof, and supersedes all prior proposals, agreements, representations, communications and understandings with respect thereto. No variation or modification of the terms of this AGREEMENT, nor any waiver of any of the terms or provisions hereof, shall be valid unless in writing and signed by an authorized representative of each PARTY.
16. Severability. In case any one or more of the provisions contained in this AGREEMENT shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this AGREEMENT and such invalid, illegal and unenforceable provision shall be reformed and construed so that it will be valid, legal, and enforceable to the maximum extent permitted by law.
17. Execution. This AGREEMENT shall be executed in two counterparts and each such counterpart shall be deemed an original thereof. Facsimile signatures on counterparts to this AGREEMENT shall be considered original signatures, with the further understanding that each PARTY shall exchange one counterpart signed in ink for receipt by the other PARTY no later than five (5) business days after the EFFECTIVE DATE.
18. Costs. Each PARTY will be responsible for all of its own attorneys fees, costs, expenses and other disbursements incurred by it in connection with the LAWSUIT. Nevertheless, the prevailing party in any controversy or claim involving this AGREEMENT shall be entitled to recover its reasonable attorneys fees, costs and expenses regarding same.
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19. Service of Notice. All notice obligations contemplated by this AGREEMENT shall be satisfied by sending written notice to the following addresses for the respective PARTY or such addresses as a PARTY may later specify in writing:
20. Representations and Warranties. Each PARTY represents and warrants that (i) it has full authority and power to enter into this AGREEMENT, and to perform its obligations hereunder; (ii) all necessary action, if any, to authorize the execution, delivery and performance of this AGREEMENT has been taken; (iii) the person executing this AGREEMENT has been duly authorized to execute this AGREEMENT; and (iv) this AGREEMENT constitutes a legal, valid and binding obligation of each such PARTY, enforceable in accordance with the terms hereof. In addition, each person executing this AGREEMENT represents that he or she has full authority to do so. Except to the extent covered by this AGREEMENT, KEURIG represents and warrants that as of the EFFECTIVE DATE, neither Keurig, Incorporated nor any of its parents, subsidiaries or AFFILIATES worldwide, have any patents or patent applications that KEURIG believes the LICENSED PRODUCTS infringe or, as to any patent applications, would infringe if and when any patent is issued thereon.