EXHIBIT 8.10
AMENDMENT TO MARCH, 1985 KEEBLER AGREEMENT
This Amendment, effected the first day of January, 1993, is between Miles
J. Willard, doing business as Miles Willard Company, having an office and place
of business at 655 West Sunnyside, Idaho Falls, Idaho 83404, (hereinafter
referred to as "Willard"), and Keebler Company, a corporation of Delaware,
having a principal place of business at 677 Larch Avenue, Elmhurst, Illinois
60126 (hereinafter referred to as "Keebler").
WITNESSETH:
WHEREAS, The parties have entered into a March, 1985 License Agreement
(hereafter referred to as the 1985 License Agreement) that governs a contractual
relationship between the parties;
WHEREAS, Keebler currently utilizes Willard technology in its snack
manufacturing facilities;
WHEREAS, Keebler has invested time and monies in its own salted snack
research and development effort; and
WHEREAS, The parties wish to amend the 1985 License Agreement to recognize
that Keebler's Product and Process Development personnel have and will in the
future continue to develop new products which may or may not use Willard
Technology and acknowledge that reduced royalties, or no royalties at all, may
apply to such products;
NOW, THEREFORE, the parties acknowledge sufficient consideration and agree
to amend the 1985 License Agreement as follows:
1. EXHIBIT A to the 1985 License Agreement will be expanded to include
three subsections labeled "EXHIBIT A, SUBSECTION A-1" "EXHIBIT A, SUBSECTION
A-2", and "EXHIBIT A, SUBSECTION A-3":
a. EXHIBIT A, SUBSECTION A-1 shall list all products currently
listed on former EXHIBIT A and those new products developed
solely by Willard or jointly by Willard and Keebler which shall
be added to EXHIBIT A, SUBSECTION A-1 in accordance with Section
3.6 of the 1985 License Agreement and this Amendment.
b. EXHIBIT A, SUBSECTION A-2 shall list those new products developed
solely by Keebler which shall be added to EXHIBIT A, SUBSECTION
A-2 in accordance with said Section 3.6 and this Amendment.
c. EXHIBIT A, SUBSECTION A-3 shall list new snack products developed
solely by Keebler that are not under the purview of Section 3.6;
i.e., snack products which do not "utilize" Willard Proprietary
Information and/or Licensed Patents, but which are produced by
production facilities or processes containing, or similar to
those containing, Willard Proprietary Information and/or Licensed
Patents. Said new snack products do not "utilize" Willard
Proprietary Information and/or Licensed Patents unless Willard
Proprietary Information and/or Licensed patents form the basis
for the new product or have a desired functional effect on the
product. No royalty shall be due or payable to Willard with
regard to any product listed on EXHIBIT A, SUBSECTION A-3.
Royalties will continue to be due and payable during the Payment
Period on products which are listed on EXHIBIT A, SUBSECTION A-1
or A-2, but which are subsequently modified so that they no
longer use Willard Proprietary Information and/or Licensed
Patents, unless otherwise specifically agreed by Willard.
2. New products shall be listed under EXHIBIT A, SUBSECTION A-1, A-2, or
A-3 according to the following Listing Schedule:
LISTING SCHEDULE
a. New products developed solely by Willard or jointly by Willard
and Keebler under Section 3.6 of this Amendment shall be listed
under EXHIBIT A, SUBSECTION A-1;
b. For those new snack products developed solely by Keebler which
are produced by production facilities or processes containing, or
similar to those containing, Willard Proprietary Information
and/or Licensed Patents, Keebler shall:
1) notify Willard within thirty (30) days of its decision to
introduce a separate product under its own brand name;
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2) notify Willard under which subsection (A-2 or A-3) Keebler
believes the new product should be listed and provide an
analysis which substantiates its reasons for so listing the
new product;
3) supply Willard with processing, formulation, and ingredient
content/composition of the new product;
4) make available to Willard or Willard's agents plant
inspections of the pilot line and production line when they
are put into operation.
Willard will, upon review and necessary inspection, then notify
Keebler whether he agrees with Keebler's proposed listing under
EXHIBIT A, SUBSECTION A-2 or A-3 and the new product will be so
listed. If Willard should disagree with Keebler's proposed
listing, Willard will supply Keebler with a written explanation.
If agreement cannot be reached after good-faith effort by both
parties, an arbitration panel consisting of a representative from
Keebler, a representative from Willard, and a representative from
the American Board of Arbitrators shall have final authority to
decide which subsection (A-2 or A-3 of EXHIBIT A) is appropriate
for the new product.
c. An automatic extension of time necessary for the above Listing
Schedule shall be granted to the Section 3.6 time requirements
for adding the new product to EXHIBIT A, SUBSECTION A-2, with
royalties being accumulated retroactively from the date the
product is first marketed.
3. Section 3.3(a) is deleted in its entirety.
4. Section 3.3(b) of the 1985 Agreement is herein amended. Section
3.3(b) as amended shall read as follows:
3.3(b)(1) For those Licensed Products currently listed on EXHIBIT A,
SUBSECTION A-1 and those licensed products which are added to
EXHIBIT A, SUBSECTION A-1 in accordance with Section 3.6 and
this Amendment, a royalty based upon the volume of said Licensed
Product sold in each Keebler fiscal year during the respective
Payment Period as follows:
Percent of
Sales per Year Net Sales Price
-------------- ---------------
for the first 110 mm lbs. 1.00%
for all product in excess of 110 mm lbs. .75%
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3.3(b)(2) For each Licensed Product marketed after the effective date of
this Agreement and which is added to EXHIBIT A, SUBSECTION A-2
in accordance with Section 3.6 and this Amendment, a royalty
based upon the volume of said Licensed Product sold in each
Keebler fiscal year during the respective Payment Period as
follows:
Percent
Sales per Year Net Sales Price
-------------- ---------------
for the first 20 mm lbs. .75%
for all product in excess of 20 mm lbs. .50%
IN WITNESS WHEREOF AND INTENDING TO BE LEGALLY BOUND HEREBY, the parties
hereto have duly executed and sealed this Amendment on the last date written
below.
KEEBLER COMPANY MILES WILLARD COMPANY
- --------------------------------- -------------------------------------
Signature Date Signature Date
- --------------------------------- -------------------------------------
Name: Miles J. Willard
TITLE:
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EXHIBIT A
SUBSECTION A-1
PRODUCTS CURRENTLY LISTED ON FORMER EXHIBIT A
AND LICENSED PRODUCTS DEVELOPED SOLELY BY
WILLARD OR JOINTLY BY WILLARD AND KEEBLER
LICENSED PRODUCTS FIRST MARKETED PAYMENT PERIOD
- ----------------- -------------- --------------
Krunch Twists* September 25, 1983 20 years
Tato Skins* February 24, 1985 20 years
Cheeblers January 27, 1986 20 years
Cheez'n Chips July 13, 1987 20 years
O'Boisies March 14, 1988 20 years
Suncheros March 14, 1988 20 years
Ripplin's May 8, 1989 20 years
Hooplas! July 30, 1990 20 years
Pizzarias February 11, 1991 20 years
Quangles 20 years
* Developed under 1981 License Agreement
Revised: February 4, 1992
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EXHIBIT A
SUBSECTION A-2
LICENSED PRODUCTS DEVELOPED SOLELY BY KEEBLER
LICENSED PRODUCTS FIRST MARKETED PAYMENT PERIOD
- ----------------- -------------- --------------
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EXHIBIT A
SUBSECTION A-3
NON-LICENSED PRODUCTS DEVELOPED SOLELY BY KEEBLER
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EXHIBIT A
DATE-LICENSED PRODUCT
LICENSED PRODUCTS FIRST MARKETED PAYMENT PERIOD
Krunch Twists* September 25, 1983 20 years
Tato Skins* February 24, 1985 20 years
Cheeblers January 27, 1986 20 years
Cheez'n Chips July 13, 1987 20 years
O'Boisies March 14, 1988 20 years
Suncheros March 14, 1988 20 years
Ripplin's May 8, 1989 20 years
Hooplas! July 30, 1990 20 years
Pizzarias February 11, 1991 20 years
Quangles February 28, 1992 20 years
* Developed under 1981 License Agreement
Revised: October 21, 1992
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EXHIBIT B
LICENSED PATENTS
1. Issued Patent No. 3, 886,291
Title: Expanded Fried Potato Snack Product
Date Issued: May 27, 1975
2. Issued Patent No. 3,997,684
Title: Method for Making Expanded Potato-Based Snack Products
Date Issued: December 14, 1976
3. Issued Patent No. 4,623,548
Title: Method for Preparing Extruded Fried Snack Products from Corn and
other Cereal Flours
Date Issued: November 18, 1986
4. Issued Patent No. 4,623,550
Title: Method for Preparing Sheeted Fried Snack Products from Corn and
Other Cereal Flours
Date Issued: November 18, 1986
5. Issued Patent No. 4,650,687
Title: Float-Frying and Dockering Methods for Controlling the Shape and
Preventing Distortion of Single-and Multi-Layer Snack Products
Date Issued: March 17, 1987
6. Issued Patent No. 4,698,230
Title: Potato Flavor Enhancing Composition and Method of Use
Date Issued: October 6, 1987
7. Issued Patent No. 4,756,920
Title: Method for Making a Snack Food Ingredient
Date Issued: July 12, 1988
8. Issued Patent No. 4,769,253
Title: Method For Preparing Extruded Fried Snack Products
Date Issued: September 6, 1988
9. Issued Patent No. 4,770,891
Title: Method for Preparing Sheeted Fried Snack Products
Date Issued: September 13, 1988
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10. Issued Patent No. 4,861,609
Title: Prevention of Puffing During Frying of Expanded Snack Products
Date Issued: August 29, 1989
11. Issued Patent No. 4,876,101
Title: Snack Food Ingredient and Method for Making Same
Date Issued: October 23, 1989
12. Issued Patent No. 4,879,126
Title: Method for Preventing Distortion in the Shape of Fried Strand-Like
Expanded Snacks
Date Issued: November 7, 1989
13. Issued Patent No. 4,889,733
Title: Method For Controlling Puffing of a Snack Food Product
Date Issued: December 26, 1989
14. Issued Patent No. 4,889,737
Title: Fried Snack Product Having Dockering Holes Therein
Date Issued: December 26, 1989
15. Issued Patent No. 4,931,303
Title: Method for Controlling the Surface Bubbling of Fabricated Snack
Products
Date Issued: June 5, 1990
16. Issued Patent No. 4,973,481
Title: Process for Producing Rippled Snack Chips and Product Thereof
Date Issued: November 27, 1990
17. Issued Patent No. 4,994,295
Title: Controlled Surface Bubbling of Fabricated Snack Products
Date Issued: February 19, 1991
18. Patent Application Serial No. 743,178*
Title: Corn Rings Continuation (process claims)
Date Filed: August 9, 1991
19. Patent Application Serial No. 07/806,627
Title: Corn Rings Division of Continuation (product claims)
Date Filed: December 13, 1991
*The corn ring continuation application has been allowed, and the issue fee has
been paid; patent number not yet available.
Revised: February 4, 1992
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