Exhibit
10.11


 


AMENDED
AND RESTATED


 


AGREEMENT


 


THIS AGREEMENT is executed as of the 21st day
of May, 2004, and made effective as of December 1, 2002, by and between HARDEE’S FOOD SYSTEMS, INC., a North
Carolina corporation (“HARDEE’S”) and PIERRE
FOODS, INC., a North Carolina corporation (the “Company”).


 


HARDEE’S desires to purchase from the Company
and the Company desires to sell to HARDEE’S and any distributors, licensees,
franchisees or other persons designated from time to time by HARDEE’S in
writing (collectively, all such entities other than HARDEE’S shall hereinafter
be referred to as “Distributor”) the products (the “Products”) described in the
“Detailed Product Schedule” (the “DPS”), in accordance with the terms and
conditions hereof.


 


In consideration of the mutual promises
contained herein the parties hereby agree as follows:


 


1.                                       Purchase and Sale.  HARDEE’S shall purchase from the Company and
the Company shall produce the Products in accordance with its proprietary
formula (the “Formula”, attached as Exhibit A to the Amended and Restated
Formula Development Agreement of even date) and with HARDEE’S Finished Product
Specifications attached to this Agreement and sell to HARDEE’S and Distributor
the Products set forth in the DPS, as amended from time to time, in the amounts
set forth in the DPS.


 


2.                                       Distributor And Related Parties.


 


(a)                                  This Agreement shall
not to be construed in any manner to be binding upon any Distributor of HARDEE’S
or upon any affiliate, parent or subsidiary corporation of HARDEE’S or any
individual signing on behalf of HARDEE’S.


 


(b)                                 It is expressly agreed
and acknowledged that Vendor has entered into a certain Amended and Restated
Agreement of even date effective as of February 4, 2004,  with Carl Karcher Enterprises, Inc. (“CKE”),
which agreement, and any amendments and attachments thereto (the “CKE
Agreement), grant to CKE the right to purchase products similar to the Products
in accordance with the terms and conditions therein.  Notwithstanding anything herein to the
contrary, HARDEE’S acknowledges that the rights, privileges, and options of CKE
under the CKE Agreement, and the terms thereof, shall not be deemed a violation
of this Agreement, the Amended and Restated Formula Development Agreement, or
any agreements delivered therewith.


 


(c)                                  The parties hereto
acknowledge that HARDEE’S designation of a Distributor shall not constitute a
representation by HARDEE’S regarding such Distributor’s ability to pay, and
that the Company shall look solely to the entity submitting a purchase order


 










	
   

  	
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hereunder for payment.  The
Company reserves the right to decline to provide goods and/or services to any
Distributor it reasonably determines is not credit worthy.


 


3.                                       Volume Commitment.


 


(a)                                  During each Contract
Year (as defined below), HARDEE’S and/or its Distributor, and CKE and/or CKE’s
Distributor (as defined in CKE Agreement) will together purchase in the
aggregate from the Company and the Company will sell HARDEE’S and CKE and/or
their respective Distributors, *** of the annual aggregate pound usage of the
Products (as defined in this Agreement and in the CKE Agreement) by HARDEE’S,
CKE, and their respective Distributors up to an aggregate total of *** pounds
of total product per Contract Year (the “Volume Requirements”).  Provided, if Company acquires (by buying or
building) an additional plant at a location satisfactory to CKE which provides
additional production capacity which is capable, in the reasonable
determination of HARDEE’S and CKE, of supplying all of their aggregate pound
usage of the Products, then the foregoing limitation of *** pounds shall be
disregarded.  Notwithstanding the
foregoing, however, the Volume Requirement shall be pro-rated for any Contract
Year consisting of less than 12 months (i.e. if the final Contract Year
consists of 10 months then the Volume Requirement for that Contract Year shall
be 10/12ths of the original Volume Requirement).


 


It is expressly understood that
non-compliance with the Volume Requirement will be deemed a material breach of
this Agreement even if the Purchase Threshold is met under the Formula
Development Agreement executed herewith.


 


(b)                                 The Volume Requirement
of the Products from the Company will be reasonably allocated over the 12 month
period of each Contract Year, (or over the actual number of calendar months in
a Contract Year, if less than 12), to the extent demand on HARDEE’S Product
permits such allocation.


 


(c)                                  At all times during
the term of this Agreement and at no additional cost to Hardee’s, the Company
will maintain a safety stock volume of up to six (6) weeks of Product based on
trailing six month period average for system wide availability in the Company’s
Ohio storage facilities.  Hardee’s
reserves the right to arrange all freight carriers and to pick up Product at
Company’s manufacturing facility and cold storage warehouses.  Addresses for the storage facilities are as
follows:


 


	
  Interstate Warehouse

  110 Distribution Drive

  Hamilton, Ohio 45011

  Attn: Paul Hanna

  513-814-6500

  	
  Pierre Foods, Inc.

  9990 Princeton Road

  Cincinnati, Ohio 45246

  Attn:  Bill Kolb

  800-543-1604

  	
  Cincinnati Freezer

  2881 E. Sharon Road

  Cincinnati, Ohio 45241

  Attn:  Don Lucas

  513-771-3573

  



 


(d)                                 The
Company acknowledges that the annual anticipated purchase  volumes set forth in the DPS are estimates
only, and are subject to adjustment based on actual historical data,
promotional forecasts and other information furnished to the Company from time










	
   

  	
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to time.  HARDEE’S will provide
the Company with a quarterly forecast at least thirty (30) days prior to the
start of each calendar quarter.  Said
forecast is an estimate only.


 


(e)                                  In the event the
Company cannot deliver the Products in the amounts and on the dates required by
HARDEE’S, HARDEE’S may obtain the Products from alternate suppliers and test
alternate products.  Such alternative
sources will count towards the Volume Requirement as if purchased from the
Company.


 


(f)                                    The Company
acknowledges and agrees that it is a non-exclusive supplier of the Products to
HARDEE’S and Distributor.


 


4.                                       Pricing and Payment.


 


(a)                                  Prices
paid by HARDEE’S will be fixed for all pick-ups and deliveries on a weekly
basis, or upon election by HARDEE’S a monthly basis.  Prices are effective at time of shipment
date.  The fixed costs components of
Total Labor Cost, Total Packaging Costs, Total Overhead Cost, and Profit and
Corporate Overhead Cost in the prices paid by HARDEE’S will be fixed as shown
on Exhibit I through April 30, 2004, and thereafter as set forth on
Exhibit I-A for all purchases through the remainder of the Term.


 


(b)                                 Formula Pricing.  Pricing will be calculated in accordance with
Exhibits I, I-A, and II, which are incorporated herein by this reference.  The reference document for raw material
pricing will be given to the Company by HARDEE’S on a weekly basis, pursuant to
HARDEE’S agreement with its raw material supplier designated from time to time
by it (currently ***).  The raw
material pricing shall be on a delivered basis and the Company agrees to accept
the freight cost set forth in HARDEE’S agreement with such raw material
supplier for all raw materials being delivered by such supplier to the
Company.  The cost basis for Domestic
Angus 85%, 80%, 50%, 73%, 65% and all Angus chucks shall be determined pursuant
to HARDEE’S Agreement with HARDEE’S raw material supplier.  To the extent HARDEE’S approves imported or
other, alternative Angus trim, then the cost basis for the Angus trim or any
applicable Angus trim components shall be provided by HARDEE’S and/or by an
authorized agent of HARDEE’S.  If HARDEE’S
chooses to use least cost formulation, pricing will be adjusted for raw
materials and any effect on yields.


 


(c)                                  Payment
Terms.  Unless
specifically provided otherwise all payments required herein to be made by
Distributor to the Company shall be net 7 calendar days from the date of
invoice.


 


(d)                                 Vendor
Return.  The Company
is responsible for the return of rejected products due to non-compliance to
specifications from HARDEE’S restaurants. 
A handling fee in the amount of 11% of the product cost will be charged
to the Company ($10 minimum, $300 maximum). 
Any Company approved disposal costs incurred by HARDEE’S will be billed
to the Company at cost.


 


(e)                                  Freight
Rate.  All
Domestic freight rates as noted in the DPS are guaranteed through September 30,
2004 and reviewed thereafter, every six (6) months based










	
   

  	
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upon a mutually agreed-upon carrier price quotation for the subsequent
six-month period.  Agreement must be made
within ten (10) days or end of each six-month period.  If Distributor elects to have product (s)
delivered to the requested facility, freight will be handled FOB Destination
and freight will be added to the price of each product.  Should Distributor pick up product(s) at the
Company’s facility, product(s) will be purchased FOB Origin as noted on the DPS’s.


 


(f)                                    Books
and Records.


 


(i)                                     Invoice Discrepancies.  HARDEE’S will monitor the Company’s invoices
and, in the event of continual pricing/invoicing errors, HARDEE’S may assess an
administrative charge on all incorrect invoices following notice.


 


(ii)                                  Maintenance
of Books and Records.  During the
Term and for a period of at least two (2) years thereafter, the Company shall
maintain such books and records (collectively, “Records”) as are necessary to
substantiate that all invoices and other charges submitted to HARDEE’S for
payment hereunder were valid and proper. 
All Records shall be maintained in accordance with generally accepted
accounting principles consistently applied. 
HARDEE’S and/or its representatives shall have the right at any time
during normal business hours, upon twenty-four (24) hours’ notice, to examine
said Records.  The provisions of this
paragraph shall survive the expiration or earlier termination of this
Agreement.


 


5.                                       Delivery.


 


(a)                                  The Products
purchased hereunder shall be delivered on a timely basis to the locations
designated by HARDEE’S or Distributor in the DPS, as amended from time to time
by HARDEE’S.


 


(b)                                 In the event the
Company cannot fulfill any order within the delivery dates designated by HARDEE’S
or Distributor (as applicable), HARDEE’S will invoice the Company for and the
Company shall pay HARDEE’S for all additional costs, other than loss of sale
costs, associated with the out of stock or late delivery.


 


(c)                                  The
Company is responsible for reasonable on-time delivery of orders to HARDEE’S
and Distributor.  In case of late
delivery by the Company or its carriers in excess of 10% of all deliveries
during the preceding quarter, HARDEE’S will assess a charge of $26/hour for
administrative and receiving labor on all late deliveries.


 


6.                                       Individual Order Termination.  HARDEE’S and/or Distributor may at any time
by written notice terminate any individual order in whole or in part if the
Company (i) fails to comply with any of the applicable terms and conditions of
the order; (ii) fails to perform within the time specified (or if no time is
specified, within a reasonable time); (iii) delivers any item that is not as
specified; or (iv) so fails to make progress as to endanger performance of the
order in accordance with its terms.  If
individual orders are terminated in whole or in part because of the Company’s
failure to deliver acceptable products in accordance with the requirements and
terms










	
   

  	
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hereof, a mutually agreed upon arrangement would be made by both
parties to ensure continued supply of order at no additional cost to HARDEE’S
or Distributor, as applicable.


 


7.                                       Quality Control/Micro Testing.  The Company will establish and maintain a
product safety plan (“Safety Program”) and a products quality program (“Quality
Control Program”).  Copies of the Quality
Control Program and Safety Program will be submitted to HARDEE’S Quality
Assurance Department for approval.  The
Safety Program will include, without limitation, safety controls, monitoring,
corrective action and verification steps to insure that potential risks are
controlled.  The Quality Control Program
will include the necessary controls to assure that all products shipped to
HARDEE’S Distribution Center or directly to restaurants, meet the current
finished product specifications, including a hold for release microbiological
program to insure that all microbiological test results meet standards prior to
its release.  HARDEE’S agrees to accept
the Company’s pathogen results for product from the Company plant’s test and
hold program.  Auditing forms, lab
reports and other verification data will be maintained by the Company and made
available to HARDEE’S upon request. 
HARDEE’S may monitor the Company’s production and/or inspect the Company’s
facilities at any reasonable time during the Company’s operating hours.  The Company will submit a manifest of code
dates with the corresponding number of cases on all products shipped to HARDEE’S.  The Company shall reimburse HARDEE’S for all
reasonable costs associated with the Company’s failure to deliver acceptable
product in accordance with the product specifications.  In such event, or pursuant to the Company’s
request to transfer production to an unapproved plant, the Company shall
reimburse HARDEE’S for all reasonable costs associated with approving an
alternate or secondary plant or location, unless approval of the alternate or
secondary plant or location is initiated solely by HARDEE’S for the sole
purpose of providing a lesser cost.  Any
deviation from HARDEE’S approved specifications, including formulation and
packaging changes, will require prior approval from HARDEE’S quality
assurance department.  On a monthly basis
the Company shall complete and submit to the HARDEE’S quality assurance
department specification summary reports. 
The Company shall submit biannually to HARDEE’S quality assurance
department an independent food safety and GMP systems audit from a HARDEE’S
approved third party auditor.  Based on
HARDEE’S product compliance testing program, the Company’s products will be
sampled from approved distribution centers or from individual restaurants by an
independent auditor or by HARDEE’S personnel for required analysis at supplier’s
expense.  Provided, the cost assessed to
the Company with respect to the two foregoing sentences shall not exceed
$30,000 in the aggregate for such expenses arising out of this Section 7
and Section 7 in the CKE Agreement. 
When and if quality problems occur, the Company shall implement a
temperature tracking and recording program for temperature sensitive products
that are delivered with a radius greater than two (2) hours or one hundred
(100) miles from the nearest distribution center.


 


8.                                       Complete Agreement.


 


(a)                                  The following
attachments (the “Attachments”) are incorporated herein by this reference and
are part of this Agreement and a breach of any terms thereunder shall
constitute a breach hereunder: (i) HARDEE’S Distribution Addendum, (ii) HARDEE’S
Items #9561 and #9598 Formula Pricing Exhibits I and I-A, (iii) *** Angus
Formula Pricing for Pierre Foods Exhibit II, (iv) Excess Safety Stock Storage
Cost Exhibit III, (v) Detailed Product










	
   

  	
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Schedule (DPS), (vi) HARDEE’S Quality Assurance Department
Finished Product Specification including QA approved label, Mold Plate Data
Sheet, Visual Standards, and HARDEE’S Label/Case Printing Requirements, (vii)
HARDEE’S Microbiological Testing Program, (viii) Amended and Restated Formula
Development Agreement, and (ix) Amended and Restated Confidentiality
Agreement.  By execution of this
Agreement, the Company and HARDEE’S acknowledge receipt and acceptance of all
Attachments.


 


(b)                                 This Agreement
together with all Attachments hereto, shall constitute the complete agreement
between HARDEE’S and the Company and shall supersede all prior or
contemporaneous proposals, representations, understandings, and other
communications between the parties concerning the matters addressed in this
Agreement and the Attachments, whether oral or written, unless specifically
incorporated herein by reference.


 


(c)                                  The issuance of
information, advice, approvals, or instructions by a party’s technical
personnel or other representatives shall be deemed expressions of personal
opinions only and shall be of no force or effect and shall not affect such party’s
rights and obligations hereunder, unless the same is in writing and signed by
an authorized officer of such party and delivered to the other party.


 


9.                                       Term and Renewal.


 


(a)                                  The term of this
Agreement shall commence as of December 1, 2002 and unless sooner
terminated in accordance with the provisions hereof, shall expire at 12:00
midnight Eastern time on November 30, 2006 (the “Term”).


 


(b)                                 HARDEE’S and the
Company agree that prior to six (6) months before expiration of the Term, the
parties shall negotiate in good faith for a one (1) year renewal (the “Renewal
Term”) of this Agreement; provided, in the event the parties are unable to
mutually agree upon the terms and conditions for the Renewal Term at least one
hundred and fifty (150) calendar days prior to the expiration of this
Agreement, this Agreement shall expire as of the original Term, unless
terminated earlier.  For the purposes of
this Agreement, the term “Term” shall be deemed to include any Renewal Term.


 


(c)                                  Every consecutive
twelve (12) calendar month period commencing on February 1 during the Term
shall be referred to as a “Contract Year” with the final period beginning on February 1
and ending on November 30 (whether or not the Renewal Term is included
pursuant to Section 9(b)) also being considered a Contract Year except
that the Volume Requirement shall be adjusted pursuant to Section 3(a)
above.


 


10.                                 Termination of Agreement.


 


(a)                                  Either party may
terminate this Agreement at any time, effective upon the other party’s receipt
of termination notice, without prejudice to any other legal rights to which the
terminating party may be entitled, upon the occurrence of any one of the
following:










	
   

  	
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(i)                                     Upon
ten (10) days written notice to the breaching party describing with detailed
specificity a material breach of this Agreement that is not cured to the
non-breaching party’s satisfaction within such ten (10) days period.


 


(ii) upon a
default by a party in the payment of any monetary obligation payable to the
other hereunder and such default continues for ten (10) days after the payee
party gives the payor party written notice of such non-payment.


 


(iii)                               If
any of the representations or warranties made by the other party in this
Agreement or any of the Attachments shall prove to be untrue or inaccurate in
any material respect.


 


(iv)                              The
other party (i) ceases to conduct its operations in the normal course of
business; (ii) is unable to meet its obligations as they mature; (iii) makes an
assignment for the benefit of creditors, or has proceedings in bankruptcy or
insolvency brought against it; or (iv) applies for or suffers the appointment
of a receiver.


 


(v)                                 A
party provides a sixty (60) days written notice to the other party, in the
event HARDEE’S makes significant specification changes to, or deletes from the
menu of its HARDEE’S restaurants all of the items listed in the DPS.  In the event of significant specification
changes, HARDEE’S will allow the Company a reasonable opportunity to become an
approved supplier of the newly defined item(s) upon mutually agreeable
terms.  Significant specification changes
do not include size, shape, weight (provided no raw cost increase without
mutual pricing adjustment), minor formulation or minor production procedure
changes; provided, such change does not require the Company to incur material
re-tooling or line/machine set up costs.


 


(b)                                 If, within a
reasonable time after having received a written notice describing with
specificity the failure to comply with product specifications, the Company
continues to fail to comply with product specifications, HARDEE’S may terminate
this Agreement by providing the Company thirty (30) days written notice.  Following such notice of termination, HARDEE’S
may return goods in inventory which fail to comply with product specifications
for full reimbursement, due and payable by the Company within seven (7) days of
the date of such return.


 


(c)                                  Termination of this
Agreement for any reason provided herein shall not relieve either party from
its obligation to perform up to the effective date of termination or to perform
such obligations that may survive termination.


 


(d)                                 Promptly following the
date of termination, the Company will return to HARDEE’S and HARDEE’S will
purchase at cost any unused packaging and labeling supplies and raw materials
on hand, and all finished products on hand complying with the specification;
provided, the Company shall not be required to return and HARDEE’S shall not be
responsible for purchasing more than sixty (60) days worth of raw materials
(including packaging) and finished products, as determined by the forecast
submitted by HARDEE’S, unless specifically directed by HARDEE’S in writing to
increase inventory levels.  The purchased
raw materials










	
   

  	
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and unused packaging and labeling supplies shall be at the Company’s
cost and the purchased finished products shall be at the price set forth
herein, all with payment within seven (7) days after return.


 


11.                                 Modification.  This Agreement may be modified only by a
written agreement signed by both parties. 
This Agreement amends, restates and supercedes that certain Agreement
pertaining to the subject matter hereof executed by the parties on December 1,
2002.  


 


12.                                 Indemnification.


 


(a)                                  The Company shall indemnify, defend and hold
harmless HARDEE’S, and its parent, affiliates, subsidiaries and all of their
respective officers, directors, employees, agents, representatives and
stockholders, and any designee or customer of HARDEE’S from and against any and
all losses, claims, actions, damages, expenses or liabilities, including,
without limitation defense costs and attorneys’ fees, resulting from, arising
out of or connected with any or all claims arising from (i) the use of the products
supplied by the Company and/or services provided hereunder, including, but not
limited to, any claim for death or personal injury or damage or loss of
property which shall have been caused directly or indirectly in whole or in
part, by any negligence or misconduct on the part of the Company, its
shareholders directors, officers, employees, contractors or agents, any defect
in the materials or workmanship used to manufacture the products, or any claim
under a theory of strict liability, or (ii) the breach by the Company of any
representation, warranty, covenant or obligation of the Company hereunder.


 


(b)                                 HARDEE’S shall indemnify, defend and hold harmless the
Company and its parent, affiliates, subsidiaries and all of their respective
officers, directors, employees, agents, representatives and stockholders from
and against any and all losses, claims, actions, damages, expenses or
liabilities, including, without limitation defense costs and attorneys’ fees,
resulting from, arising out of or connected with any or all claims arising
directly or indirectly from the negligence of HARDEE’S, or its
employees, agents, other than the Company, including by reason of improper
storage or handling by HARDEE’S agents, warehousemen, and common carriers of
products delivered by the Company in a non-defective condition.  HARDEE’S will indemnify the Company from any
loss, expense or liability resulting from recalling the Company’s product
without proven cause and joint discussion with the Company.


 


(c)                                  In the event any third party asserts any claim
with respect to any matter as to which any guarantee or indemnity in this
Agreement (or given pursuant to this Agreement) relate, the party against whom
the claim is asserted (the “Indemnified Party”) shall give prompt notice written
to the other party (the “Indemnifying Party”), and the Indemnifying Party shall
have the right at its election to take over the defense or settlement of the
third party claim at its own expense by giving prompt notice to the Indemnified
Party.  If the Indemnifying Party does
not give such notice and does not proceed diligently so to defend the third
party claim within 30 days after receipt of the notice of the third party
claim, the Indemnifying Party shall be bound by any defense or settlement that
the Indemnified Party may make to those claims and shall reimburse the
Indemnified Party for its expenses related to the defense or settlement of the
third party claim.  Nothing in this
Agreement shall be construed to hold the Company liable for any losses, claims,
damages, expenses or liabilities including, without limitation, defense costs
and










	
   

  	
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attorneys’
fees, to the extent such loss, claim, damage, expense or liability directly
results from or arises out of HARDEE’S or Distributor’s misconduct or
negligence.


 


13.                                 Insurance.  The Company shall furnish to HARDEE’S a
current certificate of insurance, which shall include a thirty (30) day written
notice of cancellation to HARDEE’S evidencing the Company has automobile,
comprehensive general liability, products liability and workers’ compensation
insurance or an equivalent.  With the
exception of workers’ compensation, all policies shall include HARDEE’S, its
parent, affiliates, subsidiaries and franchisees as additional insureds and
shall include a contractual liability endorsement to cover the Company’s
indemnification obligations hereunder.  Such
policies shall state that coverage as it pertains to HARDEE’S shall be primary
regardless of any other coverage which may be available to HARDEE’S and shall
be an occurrence rather than a claims made basis.


 


(a)                                  Comprehensive
automobile liability, including owned and non-owned autos; Bodily injury, and
property damage:  $3,000,000 per occurrence (aggregate primary
and umbrella coverage).


 


(b)                                 Comprehensive
general liability, with broad form property damage, completed operations,
personal injury, independent contractors and contractual liability: 
$3,000,000 per occurrence (aggregate primary and umbrella coverage).


 


(c)                                  Workers’
Compensation: at Statutory limits with employers’ liability: 
$1,000,000 per occurrence.


 


(d)                                 The Company must provide to HARDEE’S the
Workers’ Compensation policy number prior to commencing any work for HARDEE’S.  It is the responsibility of the Company to
notify HARDEE’S of any changes and/or renewals to the Workers’ Compensation
policy number.  The Company shall require
all subcontractors to maintain the required insurance.  No work hereunder shall commence until above
insurance is obtained, a certificate is provided to HARDEE’S and HARDEE’S has
approved the certificate in writing.


 


(e)                                  Products
Liability Insurance:  $3,000,000 per occurrence (aggregate primary
and umbrella coverage).


 


14.                                 Assignment.  No assignment or subcontract hereof shall be
made by either party without the prior written consent of the other party, and
no delegation of any obligation or of the performance of any obligation by the
Company shall be made without the prior written consent of HARDEE’S.  Any attempted assignment or delegation shall
be void and ineffective for all purposes unless made in conformity with this
paragraph.  The terms shall inure to the benefit
of, and be binding on, the successors and assigns of the parties.


 


15.                                 Captions.  Captions and titles of paragraphs contained
herein are for convenience only, and shall not be construed to limit, expand or
otherwise change the meaning of any provision hereof.










	
   

  	
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16.                                 Force Majeure. 
Either party is excused from performance hereunder if such
non-performance results from any acts of God, war, riots, acts of governmental
authorities, or any other cause outside the reasonable control of the
non-performing party.  Both parties shall
use their best efforts to terminate or cause the expiration of any Force
Majeure as soon as practical following its occurrence.  If the Company cannot deliver the Products in
the amounts and on the dates required by CKE during such Force Majeure event,
then CKE may obtain the Products from the alternate vendors (“FDA Vendors”) set
forth in Section 7 of the Amended and Restated Formula Development
Agreement between the parties as of even date herewith.  If such FDA Vendors are unable to deliver the
Products in the amounts and on the dates required by CKE during such Force
Majeure event, then CKE may obtain Products from and Company shall license and
work with alternate suppliers and test alternate products.  CKE’s purchases from the FDA Vendors and such
alternate sources during the Force Majeure event will count towards the Volume
Requirement as if purchased from the Company.


 


17.                                 Governing Law.  This
contract and all Purchase Orders that may be issued hereunder shall be
construed in accordance with, and governed by, the laws of the State of
Missouri, including the Uniform Commercial Code, without reference to laws or
principles regarding choice of laws.  The parties consent to the exclusive
jurisdiction of the state and federal courts of the State of Missouri for the
adjudication of matters arising out of this Agreement; and neither party will
assert forum  non  conveniens with respect to such
venue.  This Agreement, and all Exhibits,
are only valid if and when duly signed by authorized representatives of both
parties.  No third party is authorized to
amend or waive, on behalf of HARDEE’S, any provision of this Agreement.


 


18.                                 Laws and Regulations.  The
Company shall comply with all applicable laws, ordinances, rules and
regulations including federal, state and local authorities and departments
relating to or affecting the Company and/or the manufacture, sale or use of the
goods or services to be rendered hereunder, including without limitation Title
VII of the Civil Rights Act, as amended from time to time, and shall secure and
obtain any and all permits, licenses and consents as may be necessary in
connection therewith.


 


19.                                 Patent, Trademark and
Copyright Protection.  The Company shall defend and indemnify HARDEE’S,
Distributor and their parents, affiliates and subsidiaries, and all of their
directors, officers and employees and hold them harmless with respect to all
patent, trademark and copyright infringement liability or expenses arising out
of the use or sale of the goods covered hereunder, or any part(s) thereof, and
after notice appear and defend at its own expense any such suits in law or
equity, except such trademarks or copyrights as may be furnished to the Company
by HARDEE’S for use in connection with the packaging of products pursuant to
this Agreement.  If HARDEE’S is enjoined
from use of the goods by reason of infringement of any patent, trademark or
copyright furnished by the Company, the Company shall, at HARDEE’S option,
either procure for HARDEE’S the right to continue using the goods, replace said
goods with non-infringing goods or parts thereof, modify the goods so as to be
non-infringing or, if HARDEE’S elects, repurchase the goods at the contract
price or terminate the order without further liability to the Company.










	
   

  	
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  information redacted and

  
	
  Omitted
  portions are indicated by [***].

  	
  filed
  separately with the Commission.

  



 


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20.                                 Severability and Construction.  Any
provision used herein which is held invalid or unenforceable by any authority
of competent jurisdiction shall be ineffective to the extent of such invalidity
or unenforceability without invalidation or rendering unenforceable the
remaining provisions hereof; provided, however, that if such modification would
cause this Agreement to fail in its essential purpose or purposes, it shall be
deemed terminated by mutual agreement of the parties.  If this Agreement is terminated pursuant to
this provision, payment shall be made only to the extent of a party’s
performance to and including the date of termination, and any payments which
shall have been made and which are applicable to future time periods shall be
refunded pro rata to the effective date of termination.  The language used herein shall be deemed to
be the language chosen by the parties hereto to express their mutual intent,
and no rule of strict construction shall be applied against either party.


 


21.                                 Substitutions.  No
substitution of, nor alteration in any goods, component parts thereof, tooling,
processes, or manufacturing sites may be made without the prior written, or
FAX, consent from HARDEE’S.


 


22.                                 Survival.  All
warranties, representations, covenants and obligations of the parties hereunder
shall survive the termination or expiration of this Agreement.


 


23.                                 Use of Logos and Marks.  The
Company shall not use, in any manner whatsoever, any of the logos, trademarks,
or service marks owned by HARDEE’S or associated with HARDEE’S restaurant
system without the prior written consent of HARDEE’S.  The Company expressly acknowledges HARDEE’S
exclusive right, title and interest in and to such logos and marks, and agrees
not to represent in any manner that the Company has any ownership in HARDEE’S
logos or marks.


 


24.                                 Warranty and Regulatory
Compliance.  The Company warrants that all goods to be
delivered hereunder will be of merchantable quality, free from any latent or
patent defects, will strictly conform to all of HARDEE’S specifications or
samples in all material respects and will be fit and safe for their intended
use.  The Company also warrants that the
Company shall be in compliance with all applicable laws, regulations, rules and
ordinances, and warrants that the goods shall comply with and shall not be
misbranded or adulterated under any and all applicable federal, state and local
laws, rules, ordinances and regulations (collectively “Laws”), including
specifically those Laws governing health and food safety and the production,
packaging, storage, distribution and sale of the goods.  The Company also warrants that is has the
full and legal authority to enter into and fully perform this Agreement in
accordance with its terms and that the execution and delivery of this Agreement
has been duly authorized by the Company.


 


25.                                 Expenses. 
Except as otherwise specifically provided in this Agreement, each party
shall be responsible for any expenses incurred by such party in carrying out
its obligations herein.


 


26.                                 Independent Contractor.  The
parties shall be and act as independent contractors, and under no circumstances
shall this Agreement be construed as one of agency, partnership, joint venture
or employment between the parties.  Each
party acknowledges and










	
   

  	
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  information redacted and

  
	
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agrees
that it neither has or will give the appearance or impression of having any
legal authority to bind or commit the other party in any way.


 


27.                                 Failure to Object.  The
failure of either party to object to or to take affirmative action with respect
to any conduct of the other party which is in violation of the terms hereof
shall not be construed as a waiver thereof, nor of any future breach or
subsequent wrongful conduct.


 


28.                                 Notices.  All
notices, requests and approvals under this Agreement shall be in writing and
shall be deemed to have been properly given if and when personally delivered or
sent certified mail, postage prepaid, return receipt requested, or twenty-four
(24) hours after being sent by standard form of telecommunications, or
thirty-six (36) hours after being sent by Federal Express or other overnight
courier service providing delivery confirmation, to the address of the party
set forth below or at such other address as any of the parties hereto from time
to time may have designated by written notice to the other party:


 


	
  To the Company:

   

  Pierre Foods, Inc.

  9990 Princeton Road

  Cincinnati, Ohio 45246

  Attention:  Robert C. Naylor

  	
  To HARDEE’S:

   

  Hardee’s Food Systems, Inc.

  One U.S. Bank Plaza, Suite 2000

  St. Louis, Missouri 63101

  Attention:  Vice President, Purchasing

  



 


	
  with a copy to:

   

  T. Stewart Gibson, PLLC

  The Power Plant, Suite 302-B

  1701 Sunset Avenue

  Rocky Mount, North Carolina 27804

  	
  with a copy to:

   

  Hardee’s Food Systems, Inc.

  One U.S. Bank Plaza, Suite 2000

  St. Louis, Missouri 63101

  Attention:  General Counsel

  



 


29.                                 Miscellaneous.


 


(a)                                  Each of the individuals executing this
Agreement certifies that he or she is duly authorized to do so.


 


(b)                                 The rights and remedies set forth herein are
intended to be cumulative, and the exercise of any one right or remedy by
either party shall not preclude or waive its exercise of any other rights or
remedies hereunder or pursuant to law or equity.


 


(c)                                  Should any party commence legal action to
interpret or enforce the terms of this Agreement, the prevailing party in such
action shall be entitled to recover reasonable attorneys’ fees and costs,
including those incurred at the trial and appellate levels and in any
bankruptcy, reorganization, insolvency or other similar proceedings.










	
   

  	
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  information redacted and

  
	
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This Agreement is not to be legally binding
until the Company has sent two (2) signed original copies to HARDEE’S and
HARDEE’S has signed and returned its acceptance to the Company.


 


	
  PIERRE FOODS, INC.

  	
  HARDEE’S FOOD SYSTEMS, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Robert C. Naylor

  	
   

  	
  By:

  	
  /s/ John Dunion

  	
   

  
	
   

  	
  Robert C. Naylor

  	
   

  	
  John Dunion

  
	
   

  	
  Senior Vice President - Sales

  	
   

  	
  Executive Vice President

  
						











	
   

  	
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  information redacted and

  
	
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  portions are indicated by [***].

  	
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  separately with the Commission.

  



 


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EXHIBIT I


 


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  information redacted and

  
	
  Omitted portions
  are indicated by [***].

  	
  filed
  separately with the Commission.

  



 





















 


EXHIBIT I-A


 


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  information redacted and

  
	
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EXHIBIT II


 


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  Confidential
  information redacted and

  
	
  Omitted
  portions are indicated by [***].

  	
  filed
  separately with the Commission.