EXHIBIT 8.9
LICENSE AGREEMENT
This Agreement is to be effective the 1st day of March, 1985 between
KEEBLER COMPANY, a Delaware corporation with its principal place of business at
677 Larch Avenue, Elmhurst, Illinois ("Keebler") and MILES J. WILLARD, residing
at 229 North Lloyd Circle, Idaho Falls, Idaho ("Willard").
RECITALS
A. The parties have entered into a License Agreement dated April 2, 1981
(the "1981 License Agreement") under which Willard granted exclusive
rights to Keebler to utilize certain patents and proprietary
information belonging to Willard, and technical information known to
Willard, to manufacture and sell snack food products developed by
Willard or jointly by Willard and Keebler. Pursuant to the 1981
License Agreement, Keebler has test marketed and introduced for sale
on a regular basis certain of said snack food products.
B. The scope of the Keebler snack food business and Keebler's commitment
to said business, financially and otherwise, have increased
significantly over that originally envisioned by the parties.
Additionally, the parties desire to work together on new snack food
products not provided for in the 1981 License Agreement. The parties
have, therefore, agreed to enter into a new agreement which shall
supersede the 1981 License Agreement.
AGREEMENT
There being sufficient consideration for the undertakings herein set forth,
Willard and Keebler hereby agree as follows:
1. This Agreement shall supersede the 1981 License Agreement in its entirety.
2. Definitions
2.1 "Licensed Products" means those snack products utilizing Licensed
Patents and/or Proprietary Information, as those terms are hereinafter
defined, which products are listed in Exhibit A attached hereto and
incorporated herein.
2.2 "Licensed Patents" means those patents and patent applications filed
by Willard from which patents issue, listed in Exhibit B attached
hereto and incorporated herein, and such other patents as the parties
may mutually agree to add to Exhibit B from time to time.
2.3 "Technical Information" means all information provided by Willard to
Keebler relating to snack products and methods and apparatus for
making such products, including, but not limited to, all data,
information, know-how, equipment design and layout, specifications,
drawings, operating and production procedures.
2.4 "Proprietary Information" means information supplied to Keebler by
Willard hereunder, or under the 1981 License Agreement; which was
developed solely by Willard, is the confidential information of
Willard, is subject to protection under recognized legal principles as
trade secrets belonging to Willard, and is marked "Proprietary
Information" when submitted to Keebler by Willard in writing, or when
submitted verbally, is so designated in writing by Willard within ten
days of disclosure to Keebler. Information submitted by Willard to
Keebler under the 1982 License Agreement which was not marked as
"Proprietary Information" in accordance with this Section 2.4 and
which Willard claims to be Proprietary
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Information shall be resubmitted by Willard to Keebler in writing
appropriately marked within ninety (90) days of execution of this
Agreement by Willard. However, information disclosed hereunder or
under the 1981 License Agreement shall not be Proprietary Information
if:
a. Keebler can show by written records that such information was in
its possession prior to disclosure to it by Willard or has
legally come into its possession after disclosure through
channels independent of Willard, or
b. Such information is shown to be in the public domain other than
by reason of breach of this Agreement by Keebler.
With regard to Proprietary Information disclosed to Keebler by Willard
which subsequently is publicly disclosed or legally disclosed to
Keebler through independent channels, Keebler agrees to continue to
pay Willard a royalty as established elsewhere herein only on those
Licensed Products developed prior to the time of such independent
disclosure which utilize said Proprietary Information. After
independent disclosure, Keebler shall have the right to use said
information in the development of new products without further
liability to Willard.
2.5 "Keebler Proprietary Information" means information Keebler holds as
confidential and in which Keebler claims a proprietary interest
including, but not limited to, formulations, processes, product
specifications, market research, sales information, financial data,
and products or product ideas of Keebler. However, information
disclosed by Keebler to Willard or licensed by Willard from Keebler
hereunder or
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under the 1981 License Agreement shall not be "Keebler Proprietary
Information" if:
a. Willard can show written records that such information was in his
possession prior to disclosure to him by Keebler or has legally
come into his possession after disclosure through channels
independent of Keebler, or
b. Such information is shown to be in the public domain other than
by reason of breach of this Agreement by Willard.
2.6 "Territory" means the United States of America and its territories.
2.7 "Net Sales Price" means the actual gross price for Licensed Products
invoiced to customers by Keebler less credits for returned products,
quantity discounts, freight allowances, cash discounts and trade and
promotional allowances and the cost of coupon production, circulation
and redemption incurred in the promotion and sale of the Licensed
Products.
2.8 "Payment Period" means that period of time set forth in Exhibit A from
the date a Licensed Product is first marketed during which royalty
payments are due from Keebler to Willard.
2.9 "Minimum Royalty" means an amount equal to Fifty Thousand Dollars
($50,000), or the prorated portion thereof as provided for in Section
3.3.f below, multiplied by the current number of products listed in
Exhibit A at the end of each calendar year. For example, at the time
of execution of this Agreement two Licensed Products (Krunch Twists
and Tato Skins) are listed on Exhibit A. The Minimum Royalty Payment
due at the end of 1985, assuming no additional Licensed Products are
added
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to the list, will be One Hundred Thousand Dollars ($100,000). If the
number of Licensed Products listed on Exhibit A is increased or the
Payment Period for any Licensed Product runs out, the Minimum Royalty
will be adjusted accordingly.
3. LICENSE
3.1 Willard hereby grants to Keebler, upon the terms and conditions set
forth herein, the exclusive right to use the Technical Information,
Proprietary Information, and Licensed Patents to make, have made,
market, distribute and sell the Licensed Products in the Territory.
a. Willard represents and warrants to Keebler that he is the owner
of the Proprietary Information and Licensed Patents and that he
has the right to grant to Keebler the rights to use the
Proprietary Information, Licensed Patents and Technical
Information as specified in this Agreement. Willard further
represents and warrants that he has not and will not disclose to
any third party, or authorize any third party to utilize, the
Proprietary Information or Licensed Patents in the Territory
except as provided in Section 3.1.b.
b. The rights granted to Keebler hereunder regarding Licensed Patent
Nos. 3,886,291 and 3,997,684 shall be non-exclusive in the States
of Washington, Oregon, Alaska, Hawaii, Montana, Idaho, Wyoming
and Nevada only. In all other States in the Territory the rights
granted hereunder with regard to these patents shall be
exclusive.
3.2 Keebler shall have the right to grant sublicenses in the Territory
subject to the terms and conditions set forth herein. Keebler will be
responsible for the collection of
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payments and enforcement of the terms of any such sublicense.
Sublicensees shall not be granted rights greater than those granted to
Keebler hereunder and each sublicense shall contain non-disclosure
provisions similar to those set forth in this Agreement.
3.3 Keebler agrees to pay Willard a royalty for those rights granted
hereunder in accordance with the following:
a. For those Licensed Products developed under the 1981 License
Agreement, as designated in Exhibit A, a royalty based upon the
volume of said Licensed Products sold in each Keebler fiscal year
during the respective Payment Periods as follows:
Percent of Net
Sales Per Year Sales Price
-------------- --------------
For the first 3,000,000 lbs. 1.50
For the next 5,000,000 lbs. 1.25
For all over 8,000,000 lbs. 1.00
b. For those Licensed Products first marketed after the effective
date of this Agreement and which are added to Exhibit A in
accordance with Section 3.6, one percent (1%) of the Net Sales
Price of such Products sold by Keebler during each respective
Payment Period.
c. Keebler shall pay a royalty to Willard as calculated in
accordance with Sections 3.3.a and b for each Licensed Product
only during the respective Payment Period for each such Licensed
Product. Upon termination of the Payment Period, Keebler shall
owe no further royalty or any other amount to
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Willard for such Licensed Product, but Keebler shall have the
right to continue to use the Technical Information, Proprietary
Information and Licensed Patents on an exclusive basis to make
and sell the respective Licensed Product.
d. For Licensed Products which do NOT practice the Licensed Patents
in the production thereof, the Payment Period shall be fifteen
(15) years from the date each such Licensed Product is first
marketed. For Licensed Products covered by, or made in accordance
with methods covered by, unexpired Licensed Patent, the Payment
Period shall be twenty (20) years from the date each such
Licensed Product is first marketed notwithstanding whether or not
the patent has issued or is yet to issue as of the date the
Licensed Product is first marketed. Should all Licensed Patents
covering any such Licensed Product expire, be held invalid and/or
fail to issue prior to the end of the twenty (20) year Payment
Period, said Payment Period shall terminate on the date of
expiration, invalidation or abandonment of the last applicable
Licensed Patent. Where the Licensed Patents covering a Licensed
Product expire, fail to issue and/or are held invalid prior to
the fifteenth (15th) year after the said Product is first
marketed, but Proprietary Information is used in the production
thereof, the Payment Period shall be fifteen (15) years. If
Willard is requested by Keebler not to file for a patent, or not
to continue prosecution of a pending application, on certain
Proprietary Information utilized in the production of a Licensed
Product and Willard complies, the
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Payment Period shall be twenty (20) years for each Licensed
Product using such Proprietary Information.
e. Royalty payments shall be due and payable thirty (30) days after
the end of each Keebler fiscal quarter. Keebler shall submit to
Willard, or his designated representatives, at the time of
payment, a complete report for the respective quarter utilizing
the report form attached as Exhibit C.
f. If for any calendar year of this License Agreement, commencing
with the calendar year ending December 31, 1985, the aggregate of
royalties paid by Keebler and its sublicensees to Willard do not
equal at least the minimum Royalty calculated as provided in
Section 2.9 for such year, Keebler shall, within thirty (30) days
after the end of such year, pay to Willard an additional sum
equal to the difference between the royalties paid for that year
and the said calculated Minimum Royalty. If said additional sum
is not paid within said thirty (30) day period, Willard shall at
his option have the right to cancel this Agreement upon sixty
(60) days written notice to Keebler. If a Licensed Product is
added to Exhibit A during any calendar year, the Payment Period
for any Licensed Product ends during any calendar year, or this
License Agreement is terminated for any reason during any
calendar year, the Minimum Royalty shall be prorated from the
date of addition, to the end of the Payment Period, or to the
date of termination, as the case may be, and if royalty payments
from sales do not exceed the prorated amount, Keebler will pay
the difference to Willard.
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3.4 This Agreement shall continue, unless sooner terminated as provided
for elsewhere herein, until all Payment Periods have terminated.
Thereafter Keebler shall have the right to continue to use the
Technical Information, Proprietary Information and Licensed Patents on
an exclusive basis (subject to Section 3.1.b) in the Territory to make
and sell the Licensed Products without obligations to Willard subject
to the non-disclosure provisions set forth herein.
3.5 Willard agrees to fully disclose to Keebler all his Technical
Information, Proprietary Information and Licensed Patents required to
produce the Licensed Products. Willard further agrees to disclose to
Keebler all improvements to the Licensed Products which he develops
prior to or during the Payment Period for each Licensed Product. Such
improvements, which may take the form of technical Information,
Proprietary Information or Licensed Patents shall be included within
this Agreement, but shall not increase Keebler's obligation to Willard
either in the form of increased royalty rats or extensions to Payment
Periods subject to the provisions of Section 3.3.d above. It is
agreed between the parties that the consideration for Willard
disclosing such improvements to Keebler will be the possibility of
increased sales during the Payment Period which will result in larger
payments to Willard.
3.6 Keebler shall notify Willard of all new products it develops which
utilize Proprietary Information and/or Licensed Patents. If
Proprietary Information and/or Licensed Patents form the basis for a
new product, whether developed solely or jointly by Keebler or
Willard, which Willard claims should be added to Exhibit A as a new
Licensed Product and a royalty paid thereon, Willard shall notify
Keebler in writing
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of his claim. Keebler shall conduct a market analysis of such new
products which the parties judge to have potential for commercial
success. Only those new products which the market analysis confirms,
or which the parties mutually agree, should be sold as separate
products under their own brand names, shall be considered as new
Licensed Products. Extensions of existing Licensed Product lines,
including new flavors, textures, shapes, etc. which will be sold under
the same brand name as the existing Licensed Product lines, shall be
considered improvements to which the provisions of Section 3.5 above
shall apply. Each Licensed Product which is confirmed to be a new
product to be sold as a separate product under its own brand name
shall be added to Exhibit A no later than the date it is first
marketed,
3.7 Willard agrees to furnish Keebler with technical assistance and advise
in the production of the Licensed Products and in the utilization of
any improvements thereto when requested by Keebler. Scheduling and
allocation of Willard's time and technical assistance will be as
agreed between the parties. When such assistance is requested by
Keebler, Keebler agrees to pay the reasonable travel, meal and
accommodation expenses and laboratory costs incurred by Willard as a
direct result of the providing of such assistance. Keebler shall
reimburse Willard for such expenses and costs upon submission of an
appropriate invoice and supporting documentation acceptable to
Keebler.
4. Keebler shall keep and shall require its sublicensees, if any, to keep
true books of account containing an accurate and complete record of
data necessary for computation of royalties due to Willard under this
Agreement. Such books of
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account shall be available for inspection by Willard or his designated
Certified Public Accountant, at Willard's expense, at all reasonable
times during normal business hours. Keebler and its sublicensees, if
any, shall be required to keep records relating to royalty payments
for five (5) years after the respective royalty payment is made.
5. NON-DISCLOSURE
5.1 Keebler shall exercise all reasonable precautions to safeguard the
secrecy and confidentiality of the Proprietary Information disclosed
by Willard to Keebler prior to and during the term of the 1981 License
Agreement and this Agreement, and shall not disclose the same to
anyone other than those employees, sublicensees and suppliers who have
a need to know all or a portion of the Proprietary Information for
Keebler to produce and sell the Licensed Products. Keebler agrees that
it will not disclose any of the Proprietary Information to any
sublicensee or supplier without first obtaining the execution of a
non-disclosure agreement, the terms and conditions of which are set
forth in Exhibit D attached hereto and incorporated herein, by said
sublicensee or supplier. Keebler will mark all Proprietary
Information so disclosed with a notice that it is confidential and
subject to a non-disclosure agreement. Keebler will give Willard a
copy of each such signed non-disclosure agreement within thirty (30)
days of execution.
5.2 Willard shall exercise all reasonable precautions to safeguard the
secrecy and confidentiality of the Keebler Proprietary Information
disclosed to Willard by Keebler and shall not disclose the same or any
portion thereof to others without the
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express written consent of Keebler first obtained. Willard shall not
use the Keebler Proprietary Information or any part thereof for his
own benefit, or the benefit of others, except as specifically required
to perform his obligations hereunder, or as Keebler may otherwise
specifically agree in writing.
6. Subject to compliance with the provision of Section 5.1 above, Keebler
shall have the right, in its sole discretion, to utilize any
co-packers for the manufacture of the Licensed Products or suppliers
of raw materials, ingredients and packaging materials, it deems
appropriate. Willard agrees to assist Keebler, at Keebler's request,
in locating suppliers and/or co-packers and providing such technical
assistance to them if necessary. Willard agrees not to contact any
such suppliers or co-packers regarding Keebler business unless
specifically requested to do so by Keebler.
7. Keebler shall have the right, subject to the time constraints of
Willard, to utilize Willard's services in the development and
manufacture of new snack food products other than the Licensed
Products. Willard will perform such services as a consultant and a
reasonable fee shall be agreed upon between the parties in writing
prior to the time such services are performed. All trade secret
information and patentable information, processes, etc. resulting from
the consulting arrangement whether developed by Willard or by Willard
and Keebler shall be the property of Keebler and Willard agrees to
execute all documents, including, but not limited to, patent
applications, assignments and transfers of interest as Keebler may
deem reasonably necessary to protect its rights herein.
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8. Keebler and Willard agree to cooperate with each other regarding the
manufacture and sale of, or the licensing of the rights to manufacture
and sell, the Licensed Products in markets outside the Territory,
subject only to any arrangement Willard may enter into with Keebler's
parent Company, United Biscuits (U.K.) Limited or any of its
affiliates or subsidiaries. Either party who desires to pursue an
arrangement for the manufacture and/or sale of the Licensed Products
outside the Territory shall give the other party notice of the country
involved and all details of the proposed arrangement. Keebler shall
have the right, at its option, to be the primary party in undertaking
any such arrangement. In any such arrangement where the Proprietary
Information and/or Licensed Patents are used, Willard shall be paid a
royalty of 1% of the Net Sales Price on all sales of Licensed
Product(s) sold under the arrangement in the market. If Keebler does
not desire to be the primary party in any such arrangement, Willard
shall have the right to enter into an arrangement with a third (3rd)
party to manufacture and sell the Licensed Products in said market
outside the Territory. Keebler shall receive a one percent (1%)
royalty on the Net Sales Price of all Licensed Product(s) sold under
said arrangement in said markets. Each such arrangement entered into
by Keebler or Willard shall contain non-disclosure provisions
acceptable to Keebler and Willard protecting the Proprietary
Information, Keebler Proprietary Information and any other trade
secret information of Keebler and Willard. Nothing set forth herein
shall authorize Willard to license the use of any trademark or
copyright owned by Keebler and/or used by Keebler in
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conjunction with the Licensed Product (s) unless otherwise
specifically agreed to in writing by Keebler.
9. Willard shall have the right to review at any time during normal
business hours the system, including process steps, equipment
selection, installation, and operation by which Keebler manufactures
or proposes to manufacture the Licensed Products. Should Willard
believe the system may not enable Keebler to produce the Licensed
Products with optimum quality consistent with Keebler's objectives, he
shall have the right to report his findings in writing or in person to
a Keebler management review board which shall include the Senior Vice
President responsible for the operation of the system and such other
Keebler personnel as said Senior Vice President may desire. Said
review board shall consider Willard's written report within thirty
(30) days of receipt thereof or be available to meet with Willard to
review his findings within thirty (30) days of receipt of Willard's
written consent for any such meeting. The review board shall consider
any recommendations Willard may make; however, in no case shall the
review board or Keebler be required to act, nor shall Willard have the
right to demand that Keebler act, upon Willard's recommendations.
10. Keebler shall have the right to cancel this Agreement at any time upon
ninety (90) days written notice to Willard. Thereafter, Keebler shall
have one (1) year to sell off all inventory of the Licensed Products.
All sales of the Licensed Products during the one (1) year period
shall be subject to the royalty payment requirements set forth in
Section 3 above. Upon termination of the one (1) year period, Keebler
shall not use
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the Proprietary Information or Licensed Patents of Willard or
manufacture or sell the Licensed Products, unless otherwise agreed to
in writing between the parties, The non-disclosure provisions set
forth herein, to the extent still applicable, shall survive the
cancellation of this Agreement for a period of five (5) years.
Keebler shall cancel all sublicenses granted by it hereunder effective
the end of the said one (1) year period.
11. Keebler and Willard agree to apprise each other in writing of any
known infringement of the Licensed Patents. Keebler shall have the
right, in its sole discretion, to institute and prosecute at its
expense an action for infringement of the Licensed Patents in its own
name or, if required by law, in Willard's name as the patentee. All
expenses incurred in bringing the action will be for Keebler's account
and Keebler shall be entitled to all damages, profits and awards
resulting from said action. Keebler shall have the right to direct
the prosecution of the action and to make a settlement if it deems
appropriate. Willard shall cooperate fully with Keebler in the
prosecution of any such infringement action. In the event Keebler
determines not to bring an infringement action, Will shall have the
right to bring an action at his expense and he shall be entitled to
all damages, profits and awards resulting therefrom. Keebler agrees to
cooperate fully with Willard in the prosecution of any such action.
12. The provisions of this Agreement shall be construed in accordance with
the laws of the State of Illinois.
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13. All notices provided for herein shall be sent by certified or
registered mail, postage prepaid, to the other party at the following
address:
If to Keebler: Keebler Company
One Hollow Tree Lane
Elmhurst, Illinois 60126
Attn: General Counsel
If to Willard: Miles J. Willard
Post Office Box 1747
Idaho Falls, Idaho 83401
Each party may change its respective address by written notice to the
other party.
14. That set forth herein is the entire Agreement between the parties and
the same shall not be modified or amended except by written document
executed by authorized representatives of both parties.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
appearing after their respective signatures.
MILES J. WILLARD ("Willard")
By___________________________
Date ________________________
KEEBLER COMPANY ("Keebler")
By___________________________
Its__________________________
Date ________________________
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EXHIBIT 3.1-N
SALTY SNACK PATENTS - US
1. The following U.S. patent applications are pending in the U.S. Patent
and Trademark Office and are material to the manufacturing process of the
products indicated:
Patent Serial No. 490,922
Title: Reduced Fat Fried Snack Food
Filed: June 16, 1995
Inventor: Sanjiv H. Avashia
Assigned to: United Biscuits (UK) Ltd.
Used by Keebler in connection with: Reduced Fat O'Boises
potato crisps
Patent Serial No. 363,709
Title: Lattice Fried Food Products
Filed: December 23, 1994
Inventor: Edward Crispian Clow
Brian Derek Hill
Assigned to: United Biscuits (UK) Ltd.
Used by Keebler in connection with: Tato Wilds Criss Cross
potato crisps
These patents are subject to a License Agreement between United Biscuits
(UK) Ltd. And Keebler Company. A copy of the License Agreement is attached.
The License Agreement will be assigned to Buyer upon execution of the Purchase
Agreement.
2. Production of the following products involves use of patented
processes which are subject to a License Agreement between Miles J. Willard and
Keebler Company:
(i) O'Boisies
(ii) Tato Skins
(iii) Pizzerias
A copy of the License Agreement is attached and a list of all patents
subject to the License Agreement is attached thereto as Exhibit B. The License
Agreement will be assigned to Buyer upon execution of the Purchase Agreement.
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EXHIBIT A
DATE LICENSED PRODUCT
LICENSED PRODUCTS FIRST MARKETED PAYMENT PERIOD
Krunch Twists * Sept. 25, 1983
Tato Skins * Feb. 24, 1985
* Developed under 1981 License Agreement
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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
Method for Making Expanded Potato Based Snack Products
Date Issued: Dec. 14, 1976
3. Patent Application Ser. No. 384,897
Title: Preparing sheeted Fried Snack Products From Corn and Other Cereal
Flavors
Date filed: June 4, 1982
4. Patent Application Ser. No. 259,620
Title: Prevention of Puffing During Frying of Expanded Snack Products
Date filed: May 1, 1981
5. Patent Application Ser. No. 384,895
Title: Method for Preparing Extruded Fried Snack Products From Corn and
Other Cereal Flours
6. Patent Application Ser. No. 602,738
Title: Flavor Enhancement of Processed Potato Products
Date filed: July 13, 1984
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EXHIBIT C
COMPUTATION OF LICENSE FEE - WILLARD SNACKS
Product:______________________________________________________________
Period:_______________________________________________________________
Sales Volume (pounds):________________________________________________
Total Gross Sales ( ) ________________
" " " ( ) ________________
" " " ( ) ________________
Less: Trade Discounts ________________
Returns ________________
Freight ________________
Promotional Allowances ________________
Total Net Sales ________________
Royalty Applicable % of ___________ ________________
% of ___________ ________________
% of ___________ ________________
Total Royalty: ________________
Less Paid on Account ________________
Total Due: ________________
Deposited to Account: ________________
OR Paid by Check: ________________
Total and Net Sales per our books.
Prepared by: ______________________________
Date:_________________________
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EXHIBIT D
NON-DISCLOSURE AGREEMENT
This Agreement is to be effective by and between Keebler Company, a
Delaware corporation with its principal place of business at Elmhurst, Illinois,
hereinafter referred to as "Keebler," and XYZ, Inc., with its principal place of
business at (LOCATION), hereinafter referred to as "XYZ."
RECITALS
A. Keebler either owns, or has the right to use, certain technical
information, hereinafter referred to as the "Information", which
Information Keebler holds, or is required to hold pursuant to an
agreement with Miles J. Willard, confidential and as a trade secret.
B. XYZ is a (NATURE OF BUSINESS) in (GEOGRAPHIC AREA).
C. Keebler and XYZ are interested in discussing an arrangement whereby
XYZ would (NATURE OF SERVICE TO BE PROVIDED TO KEEBLER, I.E., CO-PACK
OF PRODUCT OR SUPPLIER OF MATERIALS). In order to determine XYZ's
ability to (NATURE OF SERVICE) for Keebler and to more fully discuss a
possible arrangement between Keebler and XYZ, Keebler will be required
to disclose the Information, or portion thereof, to XYZ.
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AGREEMENT
In consideration of Keebler's disclosure of the Information or any part
hereof to XYZ, XYZ covenants and agrees as follows:
1. The Information and any part thereof not otherwise protected by
patent, and all other trade secrets disclosed to XYZ by Keebler shall
be held by XYZ in strict confidence.
2. XYZ shall not use the Information or any part thereof, or any other
confidential information received from Keebler, except in accordance
with the terms of this Agreement or except as Keebler and XYZ may
hereafter agree; and shall not otherwise disclose the Information to
any person, association, company, corporation or other entity without
the written permission of Keebler first obtained,
3. XYZ shall take all reasonable and necessary steps and measures to
protect against the unauthorized use or disclosure of the Information
or other confidential information received from Keebler by any of its
personnel, subsidiaries, assigns, associates, licensees and others in
privity of association with it.
4. This Agreement shall bind XYZ and those taking under it with respect
to all disclosures made by Keebler in confidence, except as to any
disclosures made pursuant hereto (i) which can be proven by XYZ to be
in the public domain at the time of disclosure to XYZ by Keebler, or
(ii) which after disclosure falls within the public domain, except
through a breach thereof by XYZ, or (iii) which XYZ can prove was
already known to XYZ at the time of disclosure to Keebler. Provided,
however, if a portion of any such Information falls within any one of
the exceptions, the remainder shall continue to be subject to the
prohibition and restriction set forth in this Agreement.
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5. In the event either party notifies the other that they do not wish to
enter into a (EXAMPLE: SUPPLY) arrangement as contemplated above, XYZ
shall; within ten days of giving or receiving such notice return to
Keebler all documents of any kind provided to it by Keebler or
prepared by XYZ for analysis of the arrangement contemplated herein
and all copies thereof, which documents contain any or all of the
Information.
6. XYZ covenants that it has authority to enter into this Agreement and
is not precluded from executing and performing under the same by
reason of any other agreement, arrangement or situation to which it is
a party.
7. This Agreement shall be binding upon complete execution hereof by an
authorized representative of each party.
IN WITNESS WHEREOF, Keebler and XYZ have executed this Agreement on the
date appearing after their respective representatives' signatures.
KEEBLER COMPANY ("Keebler")
By:_____________________________
Its:____________________________
Date:___________________________
XYZ, INC. ("XYZ")
By:_____________________________
Its:____________________________
Date:___________________________
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