EXHIBIT 8.11
AGREEMENT FOR EXTENSION OF PAYMENTS
AND OTHER CONSIDERATION
THIS AGREEMENT, entered into this 17th day of February, 1997, by and
between MILES J. WILLARD, doing business as MILES WILLARD COMPANY, of 655 West
Sunnyside, Idaho Falls, Idaho, 83404, hereinafter referred to as "Willard", and
THE O'BOISIE CORPORATION, an Illinois corporation, of 1111 W. 22nd, Suite 640,
Oakbrook, Illinois, 60521, hereinafter referred to as "O'Boisie",
WITNESSETH:
WHEREAS, Willard and O'Boisie previously entered into an Assignment and
Assumption Agreement dated January 24, 1996, whereby O'Boisie accepted the
assignment of and assumed the obligations of the Licensee under that certain
License Agreement dated March 1, 1985, as amended January 2, 1993, between
Willard and Keebler Company, a Delaware corporation; and,
WHEREAS, O'Boisie is currently in default of its obligation to pay
royalties to Willard under the License Agreement, and the parties desire to
reach a further agreement to extend the time within which O'Boisie shall pay
such overdue royalties, and to otherwise modify the royalty payments due and to
become due under the License Agreement;
NOW, THEREFORE, in consideration of the terms, covenants and conditions
hereinafter set forth, the parties agree to the following:
1. PAYMENT OF 1996 ROYALTIES.
In consideration of the mutual terms of this Agreement, O'Boisie shall pay
to Willard the 1996 royalties due under the License Agreement, in the principal
amount of Two Hundred Thousand Dollars ($200,000.00) lawful money of the United
States of America, together with interest on the balance thereof remaining
unpaid from time to time at the rate of seven percent (7%) per annum
commencing January 1, 1997, in full on or before January 30, 1998. O'Boisie
shall have the privilege of making prepayments, without penalty. All payments
shall be applied first to interest, and the balance to principal.
2. PAYMENT OF 1997 ROYALTIES.
The 1985 License Agreement, as amended, provides for royalties to be paid
on certain dates for the 1997 calendar year sales. O'Boisie and Willard agree
that on each of the quarterly royalty payment dates for the 1997 calendar year
sales, O'Boisie shall pay to Willard the greater of the actual royalty due on
that date based on actual sales during the applicable quarter, or Fifty Thousand
Dollars ($50,000) which is twenty-five percent (25%) if the annual minimum
royalty under the License Agreement.
3. PAYMENTS DUE UPON PUBLIC OFFERING OF STOCK.
O'Boisie anticipates implementing a public offering of its corporate stock
shares in the early part of 1997. O'Boisie therefore agrees that upon any
public or private sale of any substantial part of its corporate stock, either
common or preferred, and either treasury stock or previously unissued stock, the
amounts payable under paragraph 1 above, constituting royalty payments for the
1996, shall become immediately due and payable in full, to the extent of the
amount of the proceeds of the offering net of brokers' commissions and other
expenses of the offering, upon O'Boisie's receipt of those proceeds.
4. ADDITIONAL INSTRUMENTS.
O'Boisie and Willard shall take such further actions and execute and
deliver such additional documents and instruments as may be reasonably necessary
or appropriate to complete the transaction in accordance with the provisions of
this Agreement.
2
5. DEFAULT.
Time and the strict and faithful performance of all the duties herein
created are of the essence of this Agreement. A default shall occur upon any of
the following events, among others:
A. If O'Boisie fails to pay any royalty payments at the times and in the
manner provided for in the License Agreement, as modified previously and as
modified by this Agreement, and if O'Boisie does not remedy such failure within
thirty (30) days after written notice is given by Willard to O'Boisie, in
accordance with the provisions of this Agreement.
B. If O'Boisie shall at any time fail to perform any of the other
covenants, terms or conditions of this Agreement, or of the License Agreement,
as amended, and O'Boisie does not remedy such failure within thirty (30) days
after written notice is given by Willard to O'Boisie in accordance with the
provisions of this Agreement, specifying the details of such failure and
demanding the specific payment or performance that will cure such failure.
C. If the O'Boisie Corporation is adjudged bankrupt or files for
bankruptcy or reorganization under the bankruptcy law, makes an arrangement for
the benefit of creditors, or has a receiver appointed for it in any action, suit
or proceeding.
If O'Boisie fails to cure any default, Willard may declare the entire
remaining unpaid balance of the 1996 royalty payments, both principal and
interest, due and payable forthwith, and Willard may recover said balance from
O'Boisie. The remedies set forth in this paragraph, or elsewhere in this
Agreement, shall be considered optional and cumulative and not a waiver of any
right or remedy that Willard would otherwise have at law or in equity to enforce
the performance of this Agreement or to recover damages for breach thereof.
3
6. ATTORNEY'S FEES.
In the event of litigation between the parties hereto concerning the
subject matter hereof, the prevailing party in any suit or action shall have the
right to demand and collect as part of any judgment to be rendered a reasonable
sum as attorney's fees in addition to costs allowed by law.
7. NOTICE.
Any and all notices required under the terms of this Agreement shall be
given by the parties to each other by certified mail, return receipt requested,
postage prepaid, in care of the name and address of the party first set forth
above, or at any other address of the party first set forth above, or any other
address subsequently furnished in writing by any party. Notice shall be deemed
given on its date of mailing, or upon written acknowledgment of its receipt by
personal delivery, whichever shall be earlier.
8. CONTROLLING LAW.
This Agreement is to be construed, governed and enforced in accordance with
the laws of the State of Idaho.
9. WAIVER.
Waiver by any party of any breach of any term, covenant or condition herein
contained shall not be deemed to be a waiver of such term, covenant or
condition, or of any subsequent breach of the same or of any other term,
covenant or condition herein contained.
10. MODIFICATION AND BINDING EFFECT.
All of the terms, conditions and covenants of this Agreement shall be
binding upon and shall inure to the benefit of all successors and assigns of the
respective parties hereto. This Agreement
4
may only be modified by written agreement signed by all of the parties hereto or
duly authorized representatives.
11. PREPARERS' IDENTITY.
O'Boisie acknowledges that this Agreement was prepared by the attorney for
Willard and that said attorney did not and does not represent O'Boisie in
connection with this transaction or the preparation of this Agreement.
EXECUTED this 17th day of February, 1997.
Miles Willard Company
________________________________
Miles J. Willard
The O'Boisie Corporation
________________________________
David Blue, President
5