SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
----------------------
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended September 30, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______ to _______
Commission file number 0-23048
LINCOLN SNACKS COMPANY
(exact name of registrant as specified in its charter)
Delaware 47-0758569
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
4 High Ridge Park, Stamford, Connecticut 06905
(Address of principal executive offices) (zip code)
(Registrant's telephone number, including area code) (203) 329-4545
Not Applicable
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
The number of shares of the issuer's Common Stock, $.01 par value, outstanding
on October 30, 1997 was 6,331,790 shares.
<PAGE>
LINCOLN SNACKS COMPANY
INDEX TO FORM 10-Q
PAGE
Part I. FINANCIAL INFORMATION
Item 1. Financial Statements
Balance Sheets as of September 30, 1997
and June 30, 1997 3-4
Statements of Operations for the
three months ended September 30, 1997
and September 30, 1996 5
Statements of Changes in Stockholders'
Equity for the three months ended
September 30, 1997 and September 30, 1996 6
Statements of Cash Flows for the
three months ended September 30, 1997
and September 30, 1996 7
Notes to Financial Statements 8-10
Item 2. Management's Discussion and Analysis
Of Financial Condition and Results of
Operations 11-13
Item 3. Quantitative and Qualitative Disclosure
About Market Risk 13
Part II. OTHER INFORMATION
Item 1-4. OTHER INFORMATION 14
Item 5. OTHER INFORMATION 14
Item 6. EXHIBITS AND REPORTS ON FORM 8-K 14
Signatures 15
- 2 -
</PAGE>
<PAGE>
LINCOLN SNACKS COMPANY
BALANCE SHEETS
ASSETS
AS OF SEPTEMBER 30, 1997 AND JUNE 30, 1997
<TABLE>
<CAPTION>
September 30, June 30,
1997 1997
------------ ------------
ASSETS (Unaudited)
CURRENT ASSETS:
<S> <C> <C>
Cash $ 1,933,244 $ 1,606,357
Accounts receivable (net of allowance
for doubtful accounts and cash discounts
of $267,768 and $237,778 respectively) 2,280,198 1,951,937
Inventories 2,180,307 1,680,253
Prepaid and other current assets 74,823 29,023
------------ ------------
Total current assets 6,468,572 5,267,570
PROPERTY, PLANT AND EQUIPMENT:
Land 370,000 370,000
Building and leasehold improvements 1,769,904 1,526,705
Machinery and equipment 4,823,807 4,800,284
Construction in process 12,254 122,319
------------ ------------
6,975,965 6,819,308
Less: accumulated depreciation
and amortization (2,417,297) (2,263,689)
------------ ------------
4,558,668 4,555,619
INTANGIBLE AND OTHER ASSETS,
net of accumulated amortization of
$702,075 and $667,111 3,431,407 3,466,371
------------ ------------
TOTAL ASSETS $ 14,458,647 $ 13,289,560
============ ============
</TABLE>
The accompanying notes to financial statements
are an integral part of these balance sheets.
- 3 -
</PAGE>
<PAGE>
LINCOLN SNACKS COMPANY
BALANCE SHEETS
LIABILITIES AND STOCKHOLDERS' EQUITY
AS OF SEPTEMBER 30, 1997 AND JUNE 30, 1997
<TABLE>
<CAPTION>
September 30, June 30,
1997 1997
------------- ------------
LIABILITIES AND STOCKHOLDERS' EQUITY (Unaudited)
CURRENT LIABILITIES:
<S> <C> <C>
Accounts payable $ 1,836,557 $ 1,357,170
Accrued expenses 1,079,009 1,178,601
Accrued trade promotions 868,646 675,585
Deferred gain-short term 13,434 13,434
------------ ------------
Total current liabilities 3,797,646 3,224,790
Deferred Gain 112,554 115,784
------------ ------------
TOTAL LIABILITIES 3,910,200 3,340,574
------------ ------------
COMMITMENTS
STOCKHOLDERS' EQUITY:
Common stock, $0.01 par value,
20,000,000 shares authorized,
6,450,090 shares issued at
September 30, 1997 and June 30, 1997 64,501 64,501
Special stock, $0.01 par value, 300,000
shares authorized, none outstanding 0 0
Additional paid-in capital 18,010,637 18,010,637
Accumulated deficit (7,500,665) ( 8,100,126)
Less: cost of common stock in
treasury 118,300 shares (26,026) (26,026)
------------ ------------
TOTAL STOCKHOLDERS' EQUITY 10,548,447 9,948,986
------------ ------------
TOTAL LIABILITIES AND
STOCKHOLDERS' EQUITY $ 14,458,647 $ 13,289,560
============ ============
</TABLE>
The accompanying notes to financial statements
are an integral part of these balance sheets.
- 4 -
</PAGE>
<PAGE>
LINCOLN SNACKS COMPANY
STATEMENTS OF OPERATIONS
FOR THE THREE MONTHS ENDED SEPTEMBER 30, 1997 AND SEPTEMBER 30, 1996
<TABLE>
<CAPTION>
1997 1996
------------ ------------
(Unaudited) (Unaudited)
<S> <C> <C>
NET SALES $ 5,740,211 $ 6,868,040
COST OF SALES 3,337,783 4,683,284
------------ ------------
Gross profit 2,402,428 2,184,756
SELLING, GENERAL AND
ADMINISTRATIVE EXPENSES 1,805,730 1,562,719
------------ ------------
Income from operations 596,698 622,037
INTEREST (INCOME) EXPENSE (12,763) 66,340
------------ ------------
Income before provision
for income taxes 609,461 555,697
PROVISION FOR INCOME TAXES 10,000 10,000
------------ ------------
Net income $ 599,461 $ 545,697
============ ============
NET INCOME PER SHARE $ 0.10 $ 0.09
============ ============
Weighted Average Number of
Shares Outstanding 6,331,790 6,331,790
============ ============
</TABLE>
The accompanying notes to financial statements
are an integral part of these statements.
- 5 -
</PAGE>
<PAGE>
LINCOLN SNACKS COMPANY
STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
FOR THE THREE MONTHS ENDED SEPTEMBER 30, 1997 AND SEPTEMBER 30, 1996
(UNAUDITED)
<TABLE>
<CAPTION>
Common Special Paid In Accumulated Treasury
Stock Stock Capital Deficit Stock
------- ------- ----------- ------------ ---------
<S> <C> <C> <C> <C> <C>
June 30, 1996 $64,501 $0 $18,010,637 ($ 9,542,721) ($26,026)
Net income 545,697
------- ------- ----------- ------------ ---------
September 30, 1996 $64,501 $0 $18,010,637 ($ 8,997,024) ($26,026)
======= ======= =========== ============ =========
June 30, 1997 $64,501 $0 $18,010,637 ($ 8,100,126) ($26,026)
Net income 599,461
------- ------- ----------- ------------ ---------
September 30, 1997 $64,501 $0 $18,010,637 ($ 7,500,665) ($26,026)
======= ======= =========== ============ =========
</TABLE>
The accompanying notes to financial statements
are an integral part of these statements.
- 6 -
</PAGE>
<PAGE>
LINCOLN SNACKS COMPANY
STATEMENTS OF CASH FLOWS
FOR THE THREE MONTHS ENDED SEPTEMBER 30, 1997 AND SEPTEMBER 30, 1997
<TABLE>
<CPATION>
1997 1996
----------- --------------
(Unaudited) (Unaudited)
CASH FLOWS FROM OPERATING ACTIVITIES:
<S> <C> <C>
Net income $ 599,461 $ 545,697
Adjustments to reconcile net income
to cash provided by operating activities:
Depreciation and amortization 188,572 217,075
Allowance for doubtful accounts and
cash discounts, net 29,990 29,032
Changes in Assets and Liabilities:
(Increase) decrease in accounts
receivable (358,251) 425,214
Decrease in inventories (500,054) (903,260)
(Increase) decrease in prepaid and
other current assets (45,800) 67,179
Increase (decrease) in accounts
payable and accrued expenses 569,626 (93,911)
------------ ------------
Net cash provided by
operating activities 483,544 287,026
------------ ------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (156,657) (16,162)
------------ ------------
Net cash used in investing activities (156,657) (16,162)
------------ ------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Repayments under revolver, net 0 ( 70,722)
Repayments under term loan 0 (200,001)
------------ ------------
Net cash used in financing
activities 0 (270,723)
------------ ------------
Net increase in cash 326,887 141
CASH, beginning of period 1,606,357 58,538
------------ ------------
CASH, end of period $ 1,933,244 $ 58,679
============ ============
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Interest paid $ 0 $ 69,989
============ ============
Income taxes paid $ 31,773 $ 5,918
============ ============
</TABLE>
- 7 -
</PAGE>
<PAGE>
LINCOLN SNACKS COMPANY
NOTES TO FINANCIAL STATEMENTS
SEPTEMBER 30, 1997
(Unaudited)
(1) The Company:
------------
Lincoln Snacks Company ("Lincoln" or the "Company"), formerly Lincoln
Foods Inc., is a Delaware corporation and is a majority-owned subsidiary
of Noel Group, Inc. (the "Parent"). Lincoln is engaged in the
manufacture and marketing of caramelized pre-popped popcorn and glazed
popcorn/nut mixes. Sales of the Company's products are subject to
seasonal trends with a significant portion of sales occurring in the
last four months of the calendar year.
(2) Basis of Presentation:
----------------------
The balance sheet as of September 30, 1997, and the related statements
of operations for the three months ended September 30, 1997 and
September 30, 1996, changes in stockholders' equity and cash flows for
the three months ended September 30, 1997 and September 30, 1996, have
been prepared by the Company without audit. In the opinion of
management, all adjustments necessary to present fairly the financial
position, results of operations and cash flows at September 30, 1997 and
September 30, 1996 have been made. During the interim periods reported
on, the accounting policies followed are in conformity with generally
accepted accounting principles and are consistent with those applied for
annual periods and described in the Company's Annual Report on Form 10-K
for the twelve months ended June 30, 1997 filed with the Securities and
Exchange Commission on September 15, 1997 (the "Annual Report").
Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted
accounting principles have been omitted. It is suggested that these
financial statements be read in conjunction with the financial
statements included in the Annual Report. The results of operations for
the three months ending September 30, 1997 and September 30, 1996 are
not necessarily indicative of the operating results for the full year.
(3) New Accounting Pronouncement:
-----------------------------
Statement of Financial Accounting Standards No. 128 ("SFAS No. 128"),
Earnings Per Share ("EPS"), which establishes standards for computing and
presenting EPS, is effective for both interim and annual periods ending
after December 15, 1997. SFAS No. 128 does not permit early application
of its provisions. The Statement replaces the presentation of primary
EPS with a presentation of basic EPS, as defined. Had EPS been
determined in accordance with SFAS No. 128, the Company's basic and
diluted income (loss) per share for the three months and six months
ended June 30, 1997 and 1996 would be unchanged from the reported net
income (loss) per share.
(4) Credit Facility:
----------------
The Company has a revolving credit and term loan facility, as amended,
which provides for up to $6.0 million in revolver borrowings and a $1.9
million term loan. No amounts were outstanding under the revolver and
term loan, as of September 30, 1997. This facility is collateralized by
substantially all of the Company's assets.
(5) Inventory:
----------
Inventory consists of the following:
<TABLE>
<CAPTION>
September 30, June 30,
1997 1997
------------ ------------
<S> <C> <C>
Raw materials and supplies $ 1,384,918 $ 1,293,280
Finished Goods 795,389 386,973
------------ ------------
$ 2,180,307 $ 1,680,253
============ ============
</TABLE>
(6) Significant Customer:
---------------------
On July 17, 1995, Planters Company, a unit of Nabisco, Inc.
("Planters"), began exclusively distributing the Company's Fiddle Faddle
and Screaming Yellow Zonkers products (the "Products") pursuant to a
distribution agreement dated June 6, 1995 (the "Distribution Agreement")
for an initial term which was originally scheduled to expire on June 30,
1997 unless renewed for additional one year periods. The Distribution
Agreement required Planters to purchase an annual minimum number of
equivalent cases of the Products during the initial term.
On February 28, 1997, the Company and Planters entered into an amendment
to the Distribution Agreement (the "Amendment"), which was further
modified on May 9, 1997 (the "Letter Agreement"), pursuant to which the
exclusive distribution arrangement with respect to the Company's Fiddle
Faddle product was extended for an additional six month period expiring
on December 31, 1997, at which time the distribution arrangement will
terminate. Effective May 1, 1997, Planters ceased, and Lincoln resumed,
marketing and distributing the Company's Screaming Yellow Zonkers
product. The Company does not expect to further extend the term of the
Distribution Agreement beyond December 31, 1997.
The Amendment and Letter Agreement required Planters to purchase a
specified number of manufactured cases of the Products and for Planters
to compensate the Company for the remaining contract minimums for the
twelve month period ended June 30, 1997. The Amendment requires reduced
minimums for the six month period ended December 31, 1997 (six month
minimums). Planters has agreed to compensate the Company in the event
that Planters fails to purchase the six month minimums by December 31,
1997. The Amendment also requires Planters to compensate the Company in
the event that certain sales levels are not achieved during the calendar
year ending December 31, 1997.
The Amendment, among other things, eliminates Planters' right to
terminate the contract in the event of a change of control, eliminates
Planters' right of first refusal on Poppycock granted in the original
contract, and allows Lincoln to enter into co-pack arrangements relating
to ready-to-eat popcorn.
Although the Amendment contains provisions designed to effect a smooth
transfer of the distribution business back to the Company, there can be
no assurance as to the long term effects of the transition.
On October 7, 1997, the Company entered into a Canadian Trademark
License Agreement with Nabisco Ltd pursuant to which Nabisco Ltd granted
the Company the right to use the Planters trademarks in connection with
the sale and marketing of the Company's Fiddle Faddle product in Canada
for a period of five years commencing on January 1, 1998. In July,
1997, the Company entered into a five year United States Trademark
License Agreement with Nabisco, Inc. granting the Company the right to
use the Planters' trademarks in connection with the sales and marketing
of the Company's Fiddle Faddle products in the United States.
Sales to Planters represented 22% and 50% of net sales for the quarter
ended September 30, 1997 and 1996, respectively.
</PAGE>
<PAGE>
ITEM 2. - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS (UNAUDITED)
- -----------------------------------------------------------------------------
Results of Operations:
- ----------------------
Introduction
- ------------
The Company's net sales are subject to significant seasonal variation,
consequently, results from operations will fluctuate due to these trends. The
Company's business is seasonal due to customers' buying patterns of Poppycock
and nut products during the traditional holiday season. As a result, third and
fourth calendar quarter sales account for a significant portion of the
Company's annual sales.
On July 17, 1995, Planters began exclusively distributing the Company's
Fiddle Faddle and Screaming Yellow Zonkers products pursuant to the
Distribution Agreement for an initial term which was originally scheduled to
expire on June 30, 1997 unless renewed for additional one year periods. The
Distribution Agreement required Planters to purchase an annual minimum number
of equivalent cases of Fiddle Faddle and Screaming Yellow Zonkers during the
initial term.
On February 28, 1997, Lincoln Snacks and Planters entered into the
Amendment, which was further modified by the Letter Agreement, pursuant to
which the exclusive distribution arrangement with respect to the Company's
Fiddle Faddle product was extended for an additional period of six months
expiring December 31, 1997 at which time the distribution arrangement will
terminate. Effective May 1, 1997, Planters ceased, and Lincoln Snacks resumed,
marketing and distributing the Company's Screaming Yellow Zonkers product. The
Company does not expect to further extend the term of the Distribution
Agreement beyond December 31, 1997.
The Amendment and Letter Agreement require Planters to purchase a
specified number of manufactured cases and for Planters to compensate the
Company for the remaining contract minimums for the twelve month period ended
June 30, 1997. The Amendment requires reduced minimums for the six month
period ended December 31, 1997 (six month minimums). Planters has agreed to
compensate the Company in the event that Planters fails to purchase the six
month minimums by December 31, 1997. The Amendment also requires Planters to
compensate the Company in the event that certain sales levels are not achieved
during the calendar year ending December 31, 1997.
Although the Amendment contains provisions designed to effect a smooth
transfer of the distribution business back to the Company, there can be no
assurance as to the long term effects of the transition.
Sales to Planters represented 22% and 50% of net sales for the quarter ended
September 30, 1997 and 1996, respectively.
Three months ended September 30, 1997 versus September 30, 1996
- ---------------------------------------------------------------
Net sales decreased 16% or $1.13 million to $5.7 million for the quarter
ended September 30, 1997 versus $6.87 million in the corresponding period of
1996. Sales made by Lincoln of its branded products increased, versus a year
ago, as did sales related to new copacking business. These increases were
offset by decreased Planters sales. During the quarter, Planters compensated
the Company, at a pre-determined rate which is lower than Planters' transfer
prices, for failing to purchase the quarterly minimum. Sales to Planters
represented 22% and 50% of net sales for the quarter ended September 30, 1997
and 1996, respectively, due to the reduced six month minimums.
Gross profit increased 10% or $.22 million to $2.40 million for the
quarter ended September 30, 1997 versus $2.18 million in the corresponding
period of 1996. Gross profit increased due to new co-packing profits and lower
raw material costs which were partially offset by decreased Planters gross
profits resulting from decreased case volume.
Selling, general and administrative expenses increased 16% or $.24
million to $1.81 million in the quarter ended September 30, 1997 versus $1.56
million the same period in 1996. These expenses increased during this period
primarily due to timing of promotional spending.
The increase in gross profit and the decrease in interest expense was
partially offset by the increase in selling, general and administrative
expenses and resulted in an increase in the net income of $.05 million to $.60
million for the quarter ended September 30, 1997 versus $.55 million in the
corresponding period in 1996.
Liquidity and Capital Resources
- -------------------------------
As of September 30, 1997, the Company had working capital of $2.67
million compared to a working capital of $2.0 million at June 30, 1997 (the
Company's fiscal year end), an increase in working capital of $.67 million.
The increase in working capital is primarily attributable to the Company's net
profit of $.60 million for the three months ended September 30, 1997.
The Company currently meets its short-term liquidity needs from its
revolving credit facility which facility is secured by a first priority,
perfected security interest in substantially all of the Company's existing and
after-acquired assets. The Company presently believes that this facility is
adequate to meet its needs for the next twelve months.
Management continues to focus on increasing product distribution and
continues to review all operating costs with the objective of increasing
profitability and ensuring future liquidity. However, there can be no
assurance that any of these objectives will be achieved in future periods.
Although the Amendment contains provisions designed to effect a smooth transfer
of the distribution of the Fiddle Faddle business back to the Company, there
can be no assurance as to the long term effects of the transition.
The Company's short term liquidity is affected by seasonal increases in
inventory and accounts receivable levels, payment terms in excess of 60 days
granted in some situations during certain months of the year, and seasonality
of sales. Inventory and accounts receivable levels increase substantially
during the latter part of the third calendar quarter and during the remainder
of the calendar year.
The following chart represents the net funds provided by or used in
operating, financing and investment activities for each period as indicated.
<TABLE>
<CAPTION>
Three Months Ended
----------------------------
September 30, September 30,
1997 1996
------------- -------------
(in thousands)
<S> <C> <C>
Net cash provided by
operating activities $ 484 $ 287
Net cash used in investing activities (157) (16)
Net cash provided by (used in)
financing activities 0 (270)
Net cash provided by operating activities increased to $.48 million
during the three months ended September 30, 1997 compared to $.29 million in
1996. The increase is primarily due to an increase in accounts payables due
to the timing of expenses coupled with a decrease in inventories which is
partially offset by an increase in accounts receivables due to the timing of
sales.
Net cash used in investing activities of $.16 million and $.01 million
for the three months ended September 30, 1997 and September 30, 1996,
respectively, represents capital expenditures.
No cash was used in or provided by financing activities for the three
months ended September 30, 1997. Net cash provided by financing activities for
the period ended September 30, 1996 was $.27 million, which consisted of
revolver repayments under its credit agreement of $.07 million and term loan
repayments of $.20 million.
ITEM 3. - QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK
- -----------------------------------------------------------------------
Not Applicable.
</PAGE>
<PAGE>
PART II. OTHER INFORMATION
Item 1. Legal Proceedings Not Applicable
Item 2. Changes in Securities and Use of Proceeds Not Applicable
Item 3. Defaults Upon Senior Securities Not Applicable
Item 4. Submission of Matters
to a Vote of Security Holders Not Applicable
Item 5. Other Information Not Applicable
Item 6. Exhibits and Reports on Form 8-K
a Exhibits
(2) Not Applicable
(3) Articles of Incorporation and By-Laws
(a) Certificate of Incorporation, as amended and as
currently in effect (Incorporated by reference
to Exhibit 3(A), filed by the Company with the
Registration Statement on Form S-1 (33-71432)).
(b) By-Laws as currently in effect (Incorporated by
reference to Exhibit 3(B) filed by the Company
with the Registration Statement on Form S-1 (33-71432)).
(4) Not Applicable
(10) (a) Letter dated September 5, 1997 between Lincoln
Snacks Company and Planters relating to
agreement for the Company to sell Fiddle Faddle
to Target Stores.
(b) Trademark Licensing Agreement for Canada dated
October 6, 1997 between Lincoln Snacks Company
and Nabisco, Ltd.
(11) Statement regarding computation of per share earnings
is not required because the relevant computation can
be determined from the material contained in the
Financial Statements included herein.
(15) Not Applicable
(18) Not Applicable
(19) Not Applicable
(22) Not Applicable
(23) Not Applicable
(24) Not Applicable
(27) Financial Data Schedule
(99) Not Applicable
b Reports on Form 8-K Not Applicable
</PAGE>
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
October 30, 1997 Lincoln Snacks Company
(Registrant)
By: /s/Karen Brenner
-------------------------------------
Name: Karen Brenner
Title: Chairman of the Board and
Chief Executive Officer; Director
(Principal Executive Officer)
By: /s/Kristine A. Crabs
-------------------------------------
Name: Kristine A. Crabs
Title: Vice President and Chief Financial
Officer, Secretary and Treasurer
(Principal Financial Officer and
Principal Accounting Officer)
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JUN-30-1998
<PERIOD-END> SEP-30-1997
<CASH> 1,933,244
<SECURITIES> 0
<RECEIVABLES> 2,547,966
<ALLOWANCES> 267,768
<INVENTORY> 2,180,307
<CURRENT-ASSETS> 6,468,572
<PP&E> 6,975,965
<DEPRECIATION> 2,417,297
<TOTAL-ASSETS> 14,458,647
<CURRENT-LIABILITIES> 3,797,646
<BONDS> 0
0
0
<COMMON> 64,501
<OTHER-SE> 10,483,946
<TOTAL-LIABILITY-AND-EQUITY> 14,458,647
<SALES> 5,740,211
<TOTAL-REVENUES> 5,740,211
<CGS> 3,337,783
<TOTAL-COSTS> 3,337,783
<OTHER-EXPENSES> 1,805,730
<LOSS-PROVISION> 13,000
<INTEREST-EXPENSE> 12,763
<INCOME-PRETAX> 609,461
<INCOME-TAX> 10,000
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 599,461
<EPS-PRIMARY> .10
<EPS-DILUTED> 0
</TABLE>
EXHIBIT 10(a)
Lincoln Snacks Company
4 High Ridge Park
Stamford, CT 06905
(203) 329-4545
Fax: (203) 329-4555
September 5, 1997
Mr. Ed Lyons
PLANTERS LIFESAVERS COMPANY
100 Deforest Avenue
East Hanover, NJ 07936
Dear Mr Lyons:
Not withstanding anything contrary to Part 1, Paragraph 1.1 of the
Exclusive Distribution Agreement dated as of June 6, 1995, between
Lincoln Snacks Company ("Lincoln") and Planters Company, a unit of
Nabisco, Inc. ("Planters"), as amended, the parties hereby agree that
Fiddle Faddle product may be sold to Target Stores ("Target") on behalf
of Lincoln other than by Planters prior to December 31, 1997.
Please refer to the Amendment to Exclusive Distribution Agreement
dated as of February 28, 1997 (the "Amendment") between Lincoln and
Planters.
Pursuant to Section 6, Purchase Requirements, Paragraph (b) of the
Amendment, during the six month period commencing July 1, 1997 and
ending December 31, 1997, among other things, Planters agreed to pay for
an aggregate of 750,000 Equivalent Cases to be billed at a rate of
125,000 Equivalent Cases per month. With respect to its obligations
under that paragraph (b), Lincoln is to bill Planters on the first day
of each month during such period, and Planters is to pay Lincoln within
15 days thereof, an amount of $300,000 (which amount represents $2.40
times 125,000). On the last day of each month, Lincoln is to bill
Planters (at the transfer price per Equivalent Case less $2.40) for the
number of cases manufactured during such month in accordance with the
monthly production schedule. Pursuant to this letter, on the last day
of each month during the referenced six month period, Lincoln hereby
agrees to credit Planters $1.75 per Equivalent Case for sales made to
Target during the month. The maximum credit in any monthly period will
be limited to 125,000 Equivalent Cases less the number of cases
manufactured during such month for Planters.
Section 6, Purchase Requirements, Paragraph (c) of the Amendment,
is hereby amended to read as follows: In the event that during the
calendar year ending December 31, 1997, Planters has not sold at least
1,500,000 Equivalent Cases in non-liquidation channels, Planters shall
pay Lincoln, prior to January 15, 1998, an amount equal to (x) 1,500,000
minus (y) the amount of Equivalent Cases sold through non-liquidation
channels and the amount sold to Target prior to December 31, 1997 times
(z) $3.20. Lincoln and Planters agree that the amount contemplated by
the previous sentence to be paid by Planters, to the extent Planters
fails to sell at least 1,500,000 Equivalent Cases in non-liquidation
channels (inclusive of the amount sold to Target prior to December 31,
1997), is a reasonable estimate of the amount of damages Lincoln would
suffer as a result of Planters failure to sell such cases and
constitutes a fair and reasonable amount of compensation for any such
failure.
Please confirm you are in agreement with the foregoing by
executing a copy of this letter and returning it to me.
Very truly yours,
LINCOLN SNACKS COMPANY
By: /s/ Kristine A. Crabs
------------------------------
Name: Kristine A. Crabs
Title: Vice President and Chief
Financial Officer
Accepted and Agreed to:
PLANTERS COMPANY, a Unit of NABISCO, INC.
By: /s/ Ed Lyons
---------------------------
Name: Ed Lyons
Title: Vice President Finance
</PAGE>
EXHIBIT 10(b)
AGREEMENT
AGREEMENT, dated the 6th day of October, 1997 between Nabisco Ltd,
a corporation existing under the Canada Business Corporations Act,
having its registered office address at 10 Park Lawn Road, Etobicoke,
Ontario, Canada M8Y 3H8 ("Nabisco" or "Licensor") and Lincoln Snacks
Company, a Delaware corporation having a principal place of business at
4 High Ridge Park, Stamford, Connecticut 06905 ("Licensee").
Recitals
WHEREAS, Nabisco is the owner of the trademarks Planters, Mr.
Peanut and the Representation of Mr. Peanut, together with associated
logos, trade dress, packaging appearance and claims to copyrights
associated therewith (hereinafter referred to as the "IP") in Canada;
WHEREAS, Licensee desires the right to use the IP on and in
connection with the manufacture, distribution, advertising and sale of
its Fiddle Faddle branded snack food products and Nabisco is willing to
grant permission to do so, on the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the premises and mutual
promises and agreements herein set forth, Nabisco and Licensee hereby
agree as follows:
Definitions
In this Agreement, the following terms have the indicated meaning:
The "Term" of this Agreement is for an initial period of five (5)
years commencing January 1, 1998. Nabisco and Licensee may in their
unfettered discretion mutually agree to additional five year periods at
least one hundred eighty (180) days prior to the time when the initial
five year period (or extended period, as the case may be) would
otherwise expire.
"IP" means the trademarks Planters, Mr. Peanut and the
Representation of Mr. Peanut, together with associated logos, trade
dress, packaging appearance and claims to copyrights associated
therewith.
"Territory" means Canada, its Provinces, Territories and
Municipalities.
"Products" means ready-to-eat caramelized popcorn product, with or
without nuts as a secondary ingredient, sold in the Territory under
Licensee's Fiddle Faddle trademark, including the products identified in
Exhibit 1 hereto and any new flavor developed by Licensee and approved
by Nabisco in the manner set forth herein, said approval not to be
unreasonably withheld or delayed.
"Distribution Channels" means all channels of trade.
The "First License Year" shall mean the period from January 1,
1998 to December 31, 1998. The "Nth License Year" (N greater than one)
means the twelve (12) month period measured from January 1, 1999 or the
respective (N-1) anniversary thereof.
"Associated Materials" means the labeling, packaging, advertising
and promotional materials, including retail store signs and displays and
other point of sale material, advertising and promotional copy and
strategy, television commercials and all other written material intended
to be distributed to the trade or public on which the IP appears or is
intended to be used.
The "Lincoln Operating Procedures" means the formulae,
specifications, good manufacturing practices, plant quality control
procedures, product recall and withdrawal procedures, consumer and
manufacturing complaint procedures, audit and inspection procedures,
sanitary/environmental and pest control procedures, ingredient
specifications, finished product specifications and shelf life of the
Products contained in the Standard Operating Procedures Manual and the
QA Procedures Manual as currently used by Licensee and previously
approved by Licensor, as the same may from time to time be amended with
Licensor's written approval.
"Net Sales" means the gross sales of Product less cash discounts
and returns.
"Equivalent Cases" means an aggregate of sixty (60) ounces of
Fiddle Faddle (e.g., twelve (12) packages of five (5) ounces each), and
an aggregate of fifty-one (51) ounces of Fat Free Fiddle Faddle;
provided, however, that a "bonus" pack consisting of twelve (12)
packages of six (6) ounces each (or seventy two (72) ounces in the
aggregate) shall be deemed to be one Equivalent Case.
1. License Grant
-------------
a. Subject to the terms and conditions hereof, for the Term of this
Agreement, Nabisco hereby grants to Licensee an exclusive license
to use the IP in connection with the production, packaging,
promotion, sale and exploitation of the Products in the
Distribution Channels in the Territory, subject to the provisions
of Paragraph 5 below, so long as Licensee produces the Products
substantially in accordance with the provisions of the Lincoln
Operating Procedures and so long as the Products are manufactured
only at the Licensee's manufacturing facility in Lincoln,
Nebraska, or such other plant as Licensor shall approve in
writing, such approval not to be unreasonably withheld or delayed
(collectively, the "Plants"; "Plant" means any one of the Plants).
In the event the Plants are not operated by Licensee, Licensee
shall ensure that the Plants are contractually obligated to comply
with the quality control provisions for the Products set forth in
this Agreement and in the Lincoln Operating Procedures, provided,
however, that Licensee shall remain fully and primarily liable to
Licensor under this Agreement for the performance of any and all
Plants.
b. Licensee shall have no right to the IP or to make, use or sell any
goods utilizing the IP, or otherwise to deal in or with the IP,
other than as expressly granted in this Agreement. Licensee shall
have no right to make, use or sell any goods utilizing any
reproduction, counterfeit, copy or colorable imitation of the IP,
or otherwise deal in or with such IP.
c. Licensee shall be responsible for manufacturing the Products and
all costs associated therewith shall be paid by Licensee.
d. Nothing in this Agreement shall be construed to prevent Nabisco
from granting any other license or right to make, use or sell
goods bearing the IP, or from utilizing the IP in any manner
whatsoever, other than for caramelized ready-to-eat popcorn
products, with or without nuts as a secondary ingredient.
e. Licensee acknowledges that Nabisco has prior to the date hereof
licensed the use of the Planters and Mr. Peanut family of
trademarks in Canada to Johnvince Foods/JVF Canada Inc. in
connection with nut products; nut candy products; peanut butter
products; and pumpkin seeds and sunflower seeds products.
Notwithstanding anything to the contrary herein contained,
Licensee acknowledges such other licensed use of the trademarks,
and Licensor does not consider the aforesaid to be a conflict of
Licensee's exclusive rights hereunder with respect to the
Products. Licensee also confirms that Johnvince Foods/JVF Canada
Inc. is Licensee's current distributor of Products in the
Territory.
2. Quality Control
---------------
a. Licensee shall comply in all material respects with the practices,
procedures, specifications and quality programs contained in the
current Lincoln Operating Procedures, a copy of which shall be
provided to Nabisco upon execution of this Agreement and
incorporated herein by reference. No alterations, modifications
or other changes to the Products or the Lincoln Operating
Procedures shall be made without the approval of Licensor, not to
be unreasonably withheld or delayed; provided, however, Licensee
may change the packaging sizes by written notice to Licensor and
without the consent of Licensor. Upon approval by Nabisco, the
Lincoln Operating Procedures and any alterations, modifications or
other changes shall be deemed incorporated into this Agreement.
Licensee shall provide Nabisco on an annual basis an updated
version of the Lincoln Operating Procedures signed by the
appropriate Licensee official. If no changes are made to the
Lincoln Operating Procedures in any particular year during the
Term, then Licensee shall provide Nabisco with a signed statement
to that effect.
b. Licensee agrees to manufacture Product only at the Plant.
Licensee shall ensure that all Plants and equipment used to
manufacture, store, and distribute the Products are maintained in
a clean and sanitary manner, in good working order, and comply in
all material aspects with all applicable local, state and federal
laws, ordinances, rules and regulations now or hereafter in effect
pertaining to the operation of the Plants or the production of the
Products, including, but not limited to, FDA's Good Manufacturing
Practice Regulations set forth at 21 C.F.R. Part 110, and, to the
extent said Plants or equipment are physically located in Canada,
its applicable Canadian equivalent.
c. Licensee shall comply in all material respects with the methods of
testing raw materials, ingredients and packaging materials, and
finished Products in accordance with local, state and federal
standards and in accordance in all material respects with the
Lincoln Operating Procedures. Licensee shall conduct, at its own
expense, certain tests on the Products including microbiological
analyses and organoleptic testing pursuant to the quality
standards set forth in the Lincoln Operating Procedures and which
test results shall, upon request, be delivered to Nabisco;
provided, however, Licensee shall immediately advise Nabisco of
results that indicate material noncompliance with the Lincoln
Operating Procedures or material noncompliance with applicable
local, state or federal laws, ordinances, rules or regulations and
upon instruction of Nabisco correct such defects within 10
business days.
d. Licensee acknowledges and agrees that, solely for the purpose of
ensuring compliance in all material respects with the Lincoln
Operating Procedures, applicable law, and licensee's compliance
with the terms of this Agreement, Nabisco may inspect, or cause to
be inspected, on reasonable notice and during normal business
hours, the Plants and any other Product manufacturing, warehouse
or distribution facility, ingredients and raw materials, finished
and in-process Products, and may audit, or cause be audited,
Licensee's quality control and sanitation programs and/or the
quality control and sanitation programs of the Plant, or other
Product manufacturing, warehouse or distribution facility. After
each inspection and audit, Nabisco will submit reports to
Licensee, instructing corrective action if the facility, program
or condition does not comply in any material respect with the
Lincoln Operating Procedures or fails to comply in any material
respect with applicable local, state or federal laws, ordinances,
rules or regulations. Licensee agrees to implement any necessary
corrective action within thirty (30) days of notice, or if the
defect is such that it cannot be remedied within thirty (30) days,
Licensee shall commence taking all reasonable and appropriate
steps to remedy the defect within such thirty (30) day period and
shall proceed thereafter with due diligence and good faith to
complete the curing as soon as possible; provided, however,
Licensee shall immediately suspend utilizing a Plant and/or other
facility in which the Products are manufactured, warehoused,
distributed, stored or sold, when in Nabisco's reasonable
judgment, a defect or condition is found that causes or may cause
a health or safety risk if such defect or condition rises to the
level of a Class I or Class II recall. Licensee shall, for as
long as the health or safety risk is present, refrain from
utilizing the affected Plant and/or facility for the Products. If
Licensee continues to utilize the affected Plant or facility,
Nabisco shall have the right to immediately terminate or suspend
this Agreement as to the affected Plant or facility and the
Product(s) manufactured, warehoused, distributed, stored or sold
therein. Should this Agreement be so terminated or suspended as a
result of a breach of this paragraph 2.d., Licensee shall have no
cause of action against Nabisco in connection with such
termination or suspension, including but not limited to any claim
for damages or compensation for losses or expenses incurred, or
for lost profits. Licensee agrees to incorporate provisions
consistent herewith into any agreement with the Plants and any
third parties whom Licensee may employ to manufacture, warehouse,
distribute or store any item of the Product.
When so warranted, Licensee acknowledges its obligations to
recall, at its sole cost and expense, if so instructed by Nabisco
or requested by any applicable governmental agency or regulatory
body, any Products manufactured by it and present at any level of
trade, including, but not limited to, warehouse, wholesale or
retail levels, should such Products fail to comply in a material
respect with the Lincoln Operating Procedures or be subject to
market withdrawal or recall pursuant to standards, laws,
ordinances, rules or regulations of any applicable governmental
agency or regulatory body.
e. Licensor has the unqualified right to withdraw its approval of any
Products in the event that their quality ceases to materially
conform with the specifications set forth in the Lincoln Operating
Procedures. Licensor has the unqualified right to withdraw its
approval of any Associated Materials in the event that their
quality ceases to materially conform with Nabisco's standards for
quality and for intellectual property protection.
f. Nabisco shall have the right to receive from Licensee, upon
request, at Nabisco's cost and expense, a reasonable quantity of
samples of Products and Associated Materials.
g. Approval by Licensor of any Product, including any prior approval
by Licensor, shall not be construed to mean that Licensor has
determined that said Product complies with the applicable laws,
regulations, ordinances or other applicable standards, such
determination being the sole responsibility of Licensee.
3. Purchase of Ingredients
-----------------------
a. This Paragraph is independent of any other Paragraph of this
Agreement.
b. Licensee shall be responsible, directly or through its contract
manufacturers, for the purchase of all flavorings, other
ingredients, packaging and other Associated Materials for the
Products in accordance with the Lincoln Operating Procedures. In
no event shall Nabisco be responsible, financially or otherwise,
for such purchases.
c. Licensee is not required to purchase ingredients, including nuts,
from Nabisco for use in the Products. However, Licensee shall
ensure that all ingredients, including nuts, it uses in the
manufacture of the Products comply with the relevant quality
standards currently in place for the existing Products, as set
forth in the Lincoln Operating Procedures, with any changes in
said standards being subject to Nabisco's approval in accordance
with Paragraph 2.a.
4. Pure Food Guarantee and Compliance With Laws
--------------------------------------------
a. Licensee guarantees that the Products produced by it shall not be
adulterated or misbranded within the meaning of the Federal Food,
Drug and Cosmetic Act, and its Canadian equivalent, as from time
to time amended, and regulations promulgated thereunder, and are
not articles which, under the provisions of Sections 404 or 505 of
said federal act, may not be introduced into interstate commerce,
and are not in violation of the provisions of the Food Additives
Amendment of 1958. This guarantee is in like terms extended and
shall be applicable to any applicable state law or municipal
ordinance in which the definitions of adulteration or misbranding
are substantially the same as those in said federal act.
b. Licensee warrants that the Products shall be manufactured, sold
and distributed in material compliance with all applicable
federal, state and local laws, rules and regulations. The sale
and distribution by Licensee of the Products shall be consistent
with past practice in that it did not, and will not, in any manner
reflect adversely upon the good name of Nabisco or any of its
programs, products or properties, or the IP.
5. Marketing and Advertising
-------------------------
a. Subject to compliance with the requirements of paragraph 5.c.,
Licensor hereby approves the Associated Materials as currently
used by Planters and Licensee and hereby agrees that any
non-material changes to such Associated Material shall not require
the consent of Licensor. Licensee shall submit to Vice President,
General Counsel & Secretary, Nabisco Ltd, 10 Park Lawn Road,
Etobicoke, Ontario, Canada M8Y 3H8 and to Kathleen Gallagher,
Nabisco Brands Company, Suite 2740, One South Wacker Drive,
Chicago, Illinois 60606, for prior and prompt approval, which
shall not be unreasonably withheld, (i) any material changes to
Associated Materials currently used by Licensee, and (ii) any new
associated materials. If Licensor requests material changes,
Licensee shall amend or cause to be amended the Associated
Materials to the reasonable satisfaction of Nabisco in the manner
that Nabisco shall direct. Nabisco also reserves the right to
change unilaterally any aspect of the IP that is the subject of
this Agreement (e.g., the trade dress for PLANTERS). Should this
occur, Nabisco may, at its discretion, notify Licensee of any
changes at least six (6) months prior to effecting any such
changes, if reasonably possible. In such event, Licensee shall
have the right to utilize its existing inventory of Associated
Materials during such six (6) month period, and shall have six (6)
months in which to make the necessary modifications to the IP on
its Associated Materials, with any material changes required by
Licensor being subject to the approval procedure set forth in this
Paragraph 5.a.
b. Licensee shall advise Nabisco, upon request, with respect to the
compliance of the Associated Materials with all applicable
federal, state and local laws or regulations, including, but not
limited, to labeling laws and regulations, in the jurisdiction(s)
in which the Products will be manufactured, distributed, stored
and/or sold. In the event any Associated Materials fail to
comply with any applicable labeling law or regulation, Licensee
undertakes to hold Nabisco harmless from any and all damages it
may suffer as a result of failure to comply with such laws and
regulations. Approval by Licensor of any material changes to the
Associated Materials in accordance with the procedure set forth in
Paragraph 5.a. shall not be construed to mean that Licensor has
determined that said changes to the Associated Materials comply
with the applicable laws, regulations, ordinances or other
relevant standards.
c. Licensee shall imprint or cause to be imprinted legibly on all
Associated Materials wherein the IP or related copyrighted work
may appear, an appropriate trademark notice consisting of either
the "Trademark" designation or the "Registered Trademark" federal
registration designation and a copyright notice as directed by
Nabisco. In addition to and without detracting from the
foregoing, a marking legend shall be used in association with the
Products along the lines of the following: "Planters, Mr. Peanut
and the Rep. of Mr. Peanut are registered trademarks in Canada of
Nabisco Ltd, used under license. Distributed by the authority of
Lincoln Snacks. Please address consumer inquiries to:
Lincoln Snacks Company
4 High Ridge Park
Stamford, Connecticut 06905
Attn: Customer Service
Fax: 203-329-4555
d. Except as set forth herein, Licensee shall, at its sole cost and
expense, handle all consumer complaints relative to the Products
and shall respond to all such complaints in an appropriate manner.
Notwithstanding the foregoing, Licensee shall immediately forward
to Nabisco all consumer complaints about the Products which may
materially and adversely affect the reputation or business of
Nabisco or the IP. Nabisco and Licensee shall confer, where
necessary, as to how to respond to such consumer complaints. For
the First License Year, Licensee shall forward quarterly summaries
of all consumer complaints about the Products to Nabisco.
Thereafter, Licensee shall forward quarterly summaries of all
consumer complaints upon written request of Nabisco. Nabisco
shall have the right to respond to all such material consumer
complaints or inquiries concerning the Products. Such complaints
shall be directed to:
Ms. Pat Mozeke
Director of R&D/QA
Planters Company
200 DeForest Avenue
East Hanover, NJ 07936
(201) 503-2852
or such other person as Nabisco shall designate from time to time
in writing.
6. Goodwill
--------
Licensee recognizes the great value of the goodwill associated
with the IP and acknowledges that the IP and all rights therein and
goodwill pertaining thereto belong exclusively to Nabisco, and that
the IP has and will continue to have a secondary meaning in the mind
of the public to signify Nabisco. Accordingly, Licensee shall not do
or permit to be done any act or thing or permit any Products to enter
the stream of commerce or be sold or distributed that may materially
impair the goodwill or other rights of Nabisco in the IP or that
would otherwise materially prejudice, tarnish or damage the
reputation of the IP, Nabisco, or the sale of Nabisco's products.
7. Title and Protection
--------------------
a. Licensee acknowledges Nabisco's title to the IP and agrees that it
shall not at any time knowingly do or suffer to be done any act or
thing or undertake any action anywhere that in any manner might
infringe or impair the validity, scope, or title of Nabisco in
the IP, or in any other intellectual property which may be owned
by Nabisco at any time during the Term hereof. It is understood
that Licensee or any affiliate of Licensee shall not acquire and
shall not claim any title to the IP adverse to Nabisco by virtue
of this Agreement, the parties intending that all utilization of
the IP by Licensee shall at all times inure to the exclusive
benefit of Nabisco.
b. Nabisco acknowledges Licensee's title to the Lincoln IP (as
defined in paragraph 7.f.) and agrees that it shall not at any
time knowingly do or suffer to be done any act or thing or
undertake any action anywhere that in any manner might infringe or
impair the validity, scope or title of Licensee in the Lincoln IP,
or in any other intellectual property which may be owned by
Licensee at any time during the Term hereof. It is understood
that Nabisco or any affiliate of Nabisco shall not acquire and
shall not claim any title to the Lincoln IP adverse to Licensee by
virtue of this Agreement, the parties intending that all
utilization of the Lincoln IP by Nabisco shall at all times inure
to the exclusive benefit of Licensee.
c. Licensee agrees that it will not use the name of Nabisco or any
reproduction, counterfeit, copy or colorable imitation thereof, as
a trading designation or in any other way, except to indicate, in
the manner set forth in Paragraph 5.c. above, that Licensee is
authorized by Nabisco to use the IP in respect of the Products.
d. Nabisco agrees that it will not use the name of Licensee or any
reproduction, counterfeit, copy or colorable imitation thereof, as
a trading designation or in any other way.
e. Licensee shall notify Nabisco in writing of any infringement and
any reproduction, counterfeit, copy or colorable imitation by
others of the IP that may come to Licensee's attention, and
Nabisco shall have the sole and exclusive right to determine
whether or not any action shall be taken on account of any such
infringement, reproduction, counterfeit, copy or imitation.
Nabisco shall control any and all infringement and unfair
competition actions and it shall have the sole and exclusive right
to commence or prosecute any claims or suits with respect to the
IP in its own name or jointly in the name of Nabisco and Licensee
at Nabisco's expense.
f. Nabisco shall notify Licensee in writing of any infringement and
any reproduction, counterfeit, copy or colorable imitation by
others of the Fiddle Faddle trademark, together with the
associated logos, trade dress, packaging appearance and claims to
copyrights associated therewith ("Lincoln IP") that may come to
Nabisco's attention, and Licensee shall have the sole and
exclusive right to determine whether or not any action shall be
taken on account of any such infringement, reproduction,
counterfeit, copy or imitation. Licensee shall control any and
all infringement and unfair competition actions and its shall have
the sole and exclusive right to commence or prosecute any claims
or suits with respect to the Lincoln IP in its own name or jointly
in the name of Licensee and Nabisco at Licensee's expense.
8. Indemnifications
----------------
a. Except as otherwise provided in Paragraph 8.c. below, Licensee
hereby agrees to indemnify and hold harmless Nabisco and its
parent and affiliated companies and each of their respective
agents, officers, directors, and employees from any and all
claims, losses, demands, damages, judgments, costs and expenses,
including reasonable attorneys' fees, that may be claimed,
asserted or rendered against Nabisco or any or all of the above
mentioned persons or their successors, arising from: (i) any
actual or alleged injury, damage, death or other occurrence to any
person or property arising or resulting directly or indirectly
out of the distribution and sale, or the possession, use or
consumption of the Products manufactured, sold or supplied by
Licensee at any time; (ii) subject to Paragraph 8.c. below, any
actual or alleged patent, copyright or trademark infringement or
dilution, false advertising, unfair competition or trade secret
violation, arising from the formulation, manufacture, packaging,
distribution, promotion, exploitation or sale of the Products;
(iii) the failure of Licensee to fulfill any of its obligations
under this Agreement; or (iv) any breach by Licensee of its
representations or warranties in this Agreement. Any consents,
approvals, inspections, reviews or similar actions undertaken or
not undertaken by Nabisco or its agents under this Agreement shall
not waive, reduce or otherwise affect or diminish any rights of
Nabisco or any of the above mentioned parties or their successors
to indemnification under this Agreement.
b. Except as may be provided in Paragraph 8.c. below, Nabisco and its
parent and affiliated companies, and each of their respective
agents, officers, directors, and employees or their successors
will not be responsible, in any way, to any party whatsoever, with
respect to any warranties, negligence, defects, or other
obligations, however any of the foregoing might arise, with
respect to the formulation, manufacture, packaging, distribution,
promotion, exploitation, or sale of the Products. Licensee and
its parent and affiliated companies, and each of their respective
agents, officers, directors, and employees or their successors
will not be responsible, in any way, to any party whatsoever, with
respect to any warranties, negligence, defects, or other
obligations, however any of the foregoing might arise, with
respect to the formulations, manufacture, packaging, distribution,
promotion, exploitation, or sale of any of Nabisco's products,
except the Products.
c. Nabisco hereby agrees to indemnify and hold harmless Licensee and
its parent and affiliated companies and each of their respective
agents, officers, directors, and employees from any and all
claims, losses, demands, damages, judgments, costs and expenses,
including reasonable attorneys' fees, that may be claimed or
asserted or rendered against Licensee, or any or all of the above
mentioned persons or their successors arising from: (i) any
actual or alleged injury, damage, death or other occurrence to any
person or property arising or resulting, directly or indirectly,
out of the distribution and sale, or the possession, use or
consumption of any of Nabisco's products manufactured, sold or
supplied by Nabisco during the Term; (ii) any actual or alleged
copyright, trademark infringement, false advertising or unfair
competition arising out of the use of the IP in the Territory by
Licensee pursuant to this Agreement; (iii) the failure of Nabisco
to fulfill any of its obligations under this Agreement; and (iv)
any breach by Nabisco of its representations or warranties in this
Agreement. Nabisco reserves the right to defend itself against
any said trademark infringement suit and Licensee shall assist
Nabisco in the defense of any such suit as Nabisco may reasonably
request.
d. In the event of any claim, action or proceeding for which a person
is entitled to indemnity hereunder, the person seeking indemnity
(the "Claimant") shall promptly notify the other party (the
"Indemnitor") of such matter in writing. The Indemnitor shall
then promptly assume primary responsibility for and shall have
primary control of such matter, including settlement negotiations
and the institution and defense of any legal proceedings, provided
the Claimant shall retain the right to be represented, at its
expense, by separate counsel. The Claimant shall have the right
to approve or disapprove any proposed settlement, provided that in
the event Claimant disapproves a proposed settlement, the Claimant
shall promptly assume responsibility for and control of such
matter and the Indemnitor shall thereafter have no further
obligation or liability for indemnification with regard to such
matter. Subject to the foregoing, the Claimant shall otherwise
fully cooperate at the Indemnitor's expense in the Indemnitor's
handling and defense of any such claims, action or proceeding.
e. In the event of a challenge or protest by the Federal Trade
Commission, the Food and Drug Administration, any state attorney
general or any other regulatory body, and/or the Canadian
equivalents, alleging false or misleading advertising and/or
labeling provisions and/or adulterated or misbranded product, the
Claimant shall (to the extent permitted by law or such
governmental agency) have the right to participate in any
settlement proceedings related thereto and to be consulted by the
Indemnitor regarding such settlement, and the Indemnitor shall
not, without the prior consent (not to be unreasonably withheld or
delayed) of the Claimant: (i) settle or compromise any such
challenge or protest or (ii) (unless required by law) release to
the public any settlement or other statement of the terms under
which such challenge or protest has been settled or compromised.
f. Licensee shall have no claim or cause of action against Nabisco,
including, but not limited to, any claim for damages or
compensation for losses or expenses incurred, including attorneys'
fees, or for lost profits, arising in any fashion from the lawful
and proper termination of this Agreement.
9. Insurance
---------
a. Licensee shall obtain, and at its own cost and expense, Ten
Million Dollars ($10,000,000) umbrella comprehensive general
liability insurance, including product liability coverage, and One
Million Dollars ($1,000,000) advertiser's liability coverage,
protecting Nabisco and its parent and affiliated companies against
any claim or suits arising in any fashion from the consumption,
manufacture, distribution, advertising, promotion or sale of the
Products. Such coverage shall be in United States Dollars or the
Canadian equivalent. Licensee shall submit to Nabisco
certificates of insurance with a thirty (30) day prior written
notice of cancellation provision, with "RJR Nabisco, Inc., its
subsidiaries, and affiliated companies and each of their
respective officers, directors, agents and employees" named as
additional insured parties, as evidence of such insurance
coverage. At least 30 days prior to the commencement of the Term
of this Agreement, Licensee shall submit to Nabisco a binder as
evidence of insurance coverage set forth above with certificates
of insurance subsequently submitted to Nabisco within thirty (30)
days thereafter. Licensee shall keep policies in force during the
Term of this Agreement and for at least one year thereafter, and
submit to Nabisco evidence of renewal prior to the expiration of
the original term of insurance and each renewal term thereafter.
b. It is understood and agreed that if Licensee fails to obtain or
maintain in force for a period of 30 consecutive days such
comprehensive general liability insurance and advertiser's
liability coverage, pursuant to the requirements of Paragraph 9.a.
above, Nabisco shall have the right to terminate this Agreement
should the defect not be remedied within five (5) business days
following receipt of notice by Licensee. Should this Agreement be
so terminated, Licensee shall have no cause of action against
Nabisco or its parent or affiliated companies in connection with
such termination, including, but not limited to, any claim for
damages or compensation for losses or expenses incurred, or for
lost profits.
10. Royalties and Payments
----------------------
a. The parties hereby agree on the following royalty rates pursuant
to the provisions of Article 8(b) of the "February 28, 1997
Amendment to Exclusive Distribution Agreement" between Licensee
and Licensor's affiliated company, Nabisco, Inc. (Planters unit)
dealing with the sale of Products in Canada, namely:
(i) Nabisco hereby grants Licensee a royalty free license for
use of the IP on the Products in the Distribution Channels
in the Territory for the First and Second License Year;
(ii) In the Third through Fifth License Years, Licensee shall pay
Nabisco a royalty in each such License Year of (i) one
percent (1%) of annual Net Sales of Products in the
Distribution Channels in the Territory with respect to sales
of up to 500,000 Equivalent Cases of Product in any such
License Year; and (ii) two percent (2%) of annual Net Sales
of Products in the Distribution Channels in the Territory
with respect to sales in excess of 500,000 Equivalent Cases
of Product in any such License Year.
b. Licensee shall provide Nabisco, within forty-five (45) days after
the end of each calendar quarter, during the Third through Fifth
License Years, whether or not any royalties are due, a complete
and accurate statement of its Net Sales of Products for that
quarter substantially in the form set forth in Exhibit 2, which
statement shall be accompanied by any payment due.
11. Reports and Records
-------------------
a. Licensee shall keep at its principal place of business accurate
and complete records of all matters pertaining to its obligations
under this Agreement. Nabisco, or its authorized representative,
shall have the right to audit said records (upon thirty (30) days
written notice, during normal business hours) solely for the
purpose of determining the accuracy of any royalty statement
delivered to Licensor.
b. Licensee shall maintain records to verify accuracy of the
computation of royalty payments for a period of one (1) year after
such payments. Nabisco, or its authorized representative, shall
have the right to audit said records for the period of one (1)
year after such payments. This Paragraph 11.b. shall survive the
termination of this Agreement.
c. In the event the audit discloses a discrepancy between royalties
due Nabisco and royalties actually paid to Nabisco of greater than
ten percent (10%), Licensee shall pay Nabisco's audit costs under
this Paragraph and the balance due on the earned royalties,
together with interest thereon calculated from the date such
deficiency was due at an annual rate based on the then current
three month LIBOR Rate plus twelve point five (12.5) basis points.
12. Term and Termination
--------------------
a. Term. The Term shall commence as of January 1, 1998 and shall
continue for a period of five years thereafter, unless sooner
terminated or extended as set forth herein below.
b. Termination in Event of Default, With Right to Cure. If any of the
following defaults shall have happened:
(i) If Licensee fails to make any required payment or submit the
required royalty report for a period beyond thirty (30) days
from the date such payment or report was due, or fails to
pay with interest any amount due within three (3) business
days after notice of default; or
(ii) If Licensee fails to have affixed on any Product the notice
required by Section 5.c. hereof or as required by applicable
law or regulation, or utilizes any Associated Materials not
approved by Nabisco, where required, in accordance with the
procedure set forth in Section 5.a.; or
(iii) In the event one or more of the following events shall
occur, which event or events do not rise to the level of a
Class I or Class II recall (as set forth in Paragraph 12.c.
herein): (A) food pathogens are found in a Product or a
Product is otherwise adulterated; (B) Licensee has
materially deviated from the Lincoln Operating Procedures,
without obtaining the prior approval of Licensor in
accordance with the procedure set forth in Paragraph 2.a.;
or (C) Licensee has materially altered the taste, texture,
nature or in other respects the quality of a Product without
Nabisco's prior written consent given pursuant to Paragraph
2 above; or
(iv) If Licensee commits a material breach of this Agreement, or
defaults with respect to a material obligation under this
Agreement or otherwise fails to perform a material
obligation (other than a breach, default or failure that
rises to the level of a Class I or Class II recall, as set
forth in Paragraph 12.c. herein), which breach, default or
failure, in the judgment of Nabisco (exercised reasonably
and in good faith), as an isolated event or a series of
events in the aggregate, has caused or resulted in:
A. material damage to the reputation or goodwill of
Nabisco; or
B. material adverse publicity to Nabisco, the IP and/or
Nabisco's marks, or material adverse publicity to
Licensee which has a material adverse affect on
Nabisco, the IP and/or Nabisco's marks; or
C. Product that is likely to cause severe adverse health
consequences or is adulterated or misbranded within
the meaning of the Federal Food, Drug and Cosmetic
Act, and its Canadian equivalent, has been distributed
by Licensee which in the judgment of Nabisco
(exercised reasonably and in good faith) has resulted
in material damage to the reputation or goodwill of
Nabisco or material adverse publicity to Nabisco, the
IP and/or Nabisco's trademarks, or material adverse
publicity to Licensee which has a material adverse
affect on Nabisco, the IP and/or Nabisco's trademarks;
or
(v) If Licensee otherwise defaults in the performance of any of
the other terms, conditions or provisions of this Agreement
(other than a default that rises to the level of a Class I
or Class II recall, as set forth in Paragraph 12.c. herein)
in such a manner as to materially and adversely affect the
rights of Nabisco hereunder or the validity or
enforceability of a IP;
then in all the foregoing circumstances, Licensor may, if it so
elects, terminate this Agreement upon thirty (30) days prior
written notice; provided, however, that none of the circumstances
set forth in Paragraph 12.b. above shall constitute a breach (with
the remedy of the exercise of the right of termination being
available to Licensor) if any such breach or default is remedied
within thirty (30) days after written notice thereof from
Licensor, or if such breach or default is of a nature that cannot
be remedied within thirty (30) days, Licensor shall have commenced
curing such breach or default within thirty (30) days after
written notice thereof from Licensor and shall proceed thereafter
with due diligence and good faith to complete the curing as soon
as possible.
c. Termination Under Extraordinary Circumstances By Nabisco Without
Right to Cure. Notwithstanding anything in this Agreement to the
contrary, Nabisco shall have the right, in its sole discretion, to
terminate this Agreement immediately and without Licensee's right
to cure, upon notice to Licensee, if any of the following events
occur:
(i) In the event of a breach, failure or default of this
Agreement, which breach, failure or default, in the judgment
of Nabisco, as an isolated event or a series of events in
the aggregate, has caused or resulted in: Product has been
distributed that qualifies as (a) a Class I recall of the
Product or (b) a Class II recall of the Product (Class I and
Class II shall have the meanings set forth in 21 C.F.R.
Section 7.3 and its Canadian equivalent); or
(ii) If Licensee fails to obtain or maintain insurance coverage,
pursuant to the requirements of Paragraph 9; or
(iii) In the event of an actual or attempted assignment or
sublicense hereof by Licensee, or in the event Licensee
delegates its duties hereunder or subcontracts a substantial
portion of the manufacture of any Product without Nabisco's
prior written consent in each instance, or
(iv) Licensee commits multiple breaches previously cured under
Section 12.b., or
(v) Licensee enters into a licensing agreement in violation of
Paragraph 21.
d. Termination in the event of Bankruptcy. If (i) Licensee files a
voluntary petition of bankruptcy, (ii) an order for relief under
the Bankruptcy Code or other insolvency law is entered against
Licensee which order is not vacated within 20 days, (iii) Licensee
is adjudicated as bankrupt, (iv) a petition in bankruptcy is filed
against Licensee which petition is not dismissed within 90 days
from the filing thereof, (v) Licensee become insolvent or makes an
assignment for the benefit of its creditors or an arrangement
pursuant to any bankruptcy or insolvency law, or (vi) if a
receiver is appointed for it or its business, the license hereby
granted shall automatically terminate forthwith without any notice
whatsoever being necessary. Should this Agreement be so
terminated, Licensee, its administrator, successors, or assigns
shall have no right to sell, exploit or in any way deal with or in
any Products covered by this agreement or any written or printed
or tangible matter bearing the IP, except with and under the
special consent and instructions in writing of Nabisco.
e. Termination for Failure to Use IP. If at any time after the end of
the Second License Year of this Agreement Licensee introduces
Products in the Territory without the IP, fails to introduce
Products in the Territory bearing the IP, or ceases to sell
Products in the Territory bearing the IP, Nabisco may: (i)
terminate the license hereby granted; or (ii) amend the license
grant to a non-exclusive license; which options may be exercised,
in Nabisco's sole discretion and at its option, by giving written
notice to Licensee. Such notice shall be effective when mailed,
without any period for cure.
f. Termination by Licensee. Licensee shall at all times have the
right to terminate this Agreement upon 30 day prior written
notice.
13. Inventory Upon Termination
--------------------------
a. Ten (10) days after a notice of termination is given or the
happening of an event that automatically terminates this Agreement
where no notice is required, Licensee shall furnish to Nabisco a
statement certified by the president or chief financial officer of
Licensee to be true and correct showing the number and description
of Products on hand, held for Licensee in inventory or otherwise,
or in process.
b. After expiration of the Term or earlier termination of this
Agreement, except as otherwise provided in this Agreement and
except in the event of termination pursuant to Paragraph 2.d. or
9.b. or subparagraph (iii), (iv) or (v) of Paragraph 12.b. or
Paragraph 12.c., Licensee shall have the right to deplete existing
inventories of Products bearing the IP for a period not to exceed
six (6) months following the date of expiration or termination;
provided, however, that Licensee acknowledges that the use of the
IP during this 6-month period is non-exclusive. Further, during
this 6-month period, Licensee shall to the best of its ability
remove Product beyond its shelf life from store shelves and shall
fully perform all its obligations required under this Agreement as
if it had not expired or terminated. Within thirty (30) days of
the expiration of this six month period, Licensee shall offer to
sell to Nabisco its remaining inventory of Products, finished and
in-process, and any packaging therefor together with its inventory
of Associated Materials at Licensee's cost. Nabisco shall have
thirty (30) days to accept the offer to sell this inventory. If
Nabisco does not accept the offer, Licensee shall have an
additional three (3) months from the date of Nabisco's notice that
it does not intend to purchase such inventory in which to deplete
any remaining inventory of Products. Thereafter the inventory
shall be destroyed at Licensee's expense and a sworn certificate
of destruction shall be furnished by Licensee to Nabisco in a form
acceptable to Nabisco and executed by the chief operating officer
or chief financial officer of Licensee.
14. Effect of Termination
---------------------
a. Upon termination of this Agreement, all rights granted to Licensee
hereunder shall forthwith revert to Nabisco, and Licensee shall
stop all further use of the IP or any further reference to them,
direct or indirect, or any reproduction, counterfeit, copy or
colorable imitation thereof, in connection with the manufacture,
sale or distribution of Licensee's goods or other items of
tangible or intangible property except as provided in Paragraph 13
above or otherwise in this Agreement. Licensee shall not initiate
any new use of the IP or any colorable imitation thereof on its
Associated Materials. Licensee shall be permitted to use its
inventories of approved Associated Materials and to use the IP in
existence at the time of service of a notice of termination
hereunder, only for promotion or advertising in connection with
its depletion of the Products. Licensee shall promptly execute
and deliver, at Nabisco's expense, to Nabisco or its designee any
and all documents required to transfer to Nabisco or its designee
any IP rights or equities that may be vested in Licensee as a
result of Licensee's use of the IP pursuant to this Agreement and,
if any of the foregoing are not transferable, shall execute and
file, at Nabisco's expense, with the appropriate authorities any
and all documents required to effectuate or to evidence the
surrender by Licensee of the right to use the IP.
b. Licensee acknowledges that its manufacture, sale or distribution
of the Products, or any other goods bearing the IP, after
termination of this Agreement, except as provided in Paragraph 13
above, shall result in immediate and irreparable damage to which
there is no remedy in law to Nabisco and to the rights of any
subsequent Licensee. Licensee acknowledges and admits that there
is no adequate remedy of law for its failure to cease such
activities and that, in such event, Nabisco shall be entitled to
equitable relief by way of such temporary and permanent injunctive
relief as a court may deem just and proper.
c. Licensee shall not be able to claim from Nabisco any damages or
compensation for losses or expenses incurred or for loss of
profits arising in any fashion from Nabisco's proper and lawful
termination of this Agreement.
d. Licensor shall not be able to claim from Licensee any damages or
compensation for losses or expenses incurred or for loss of
profits arising in any fashion from Licensee's proper and lawful
termination of this Agreement.
e. Termination of this Agreement for any reason shall not affect
those obligations that have theretofor accrued or that, from the
context hereof, are intended to survive termination of this
Agreement.
15. Representations
---------------
a. In addition to all of the agreements, promises, guarantees,
covenants, warranties and obligations herein contained, Licensee
represents and warrants to Nabisco that it is a corporation
organized and validly existing under the laws of the state of its
incorporation with full power and authority to execute, deliver
and fully perform the terms and conditions hereof, and that it is
under no restriction or prohibition limiting its ability or right
to execute, deliver and fully perform its obligations hereunder.
b. In addition to all of the agreements, promises, guarantees,
covenants, warranties and obligations herein contained, Licensor
represents and warrants to Licensee that it is a corporation
organized and validly existing under the laws of Canada, its
jurisdiction of incorporation, with full power and authority to
execute, deliver and fully perform all terms and conditions
hereof, and that it is under no restriction or prohibition
limiting its ability or right to execute, deliver and fully
perform its obligations hereunder. Licensor further represents
that use of the IP by Licensee pursuant to this Agreement will not
conflict with the rights of any third parties.
16. Disclaimer of Warranties and Representations by Nabisco
-------------------------------------------------------
Nabisco and Licensee make no warranty or representation
whatsoever, express or implied, as to the amount of gross sales, net
sales, profits or volume that Nabisco or Licensee, as the case may
be, will derive from or may expect with respect to the sale of the
Products.
17. Notices
-------
Any notice or report sent pursuant to any provision of this
Agreement shall be sent and shall be deemed given four (4) days after
being sent by certified mail, return receipt requested, or will be
deemed given when delivered in person or by facsimile transmission if
confirmation copy is received by overnight courier on the following
day, to the following addresses or such other addresses as shall be
hereafter notified:
If to Nabisco: Nabisco Brands Company
Suite 2740
One South Wacker Drive
Chicago, Illinois 60606
Attention: Kathleen Gallagher
Fax: 312-726-7027
with a copy to: Nabisco Ltd
10 Park Lawn Road
Etobicoke, Ontario
Canada M8Y 3H8
Attention: Corporate Secretary
Fax: 416-253-2783
with a copy to: Planters Company
100 DeForest Avenue
East Hanover, New Jersey 07936
Attention: Ed Lyons
Fax: 201-503-3554
If to Licensee: Lincoln Snacks Company
4 High Ridge Park
Stamford, Connecticut 06905
Attention: R. Scott Kirk
Fax: 203-329-4555
with a copy to: Noel Group, Inc.
667 Madison Avenue
Suite 2500
New York, New York 10021
Attention: Karen Brenner
Fax: 212-758-8531
18. Applicable Law
--------------
This Agreement shall be construed in accordance with the laws of
the Province of Ontario and of Canada applicable to contracts
executed and to be fully performed in such jurisdiction. With the
exception of Paragraph 20.b., in all instances where U.S. legislation
is referred to, as this Agreement applies to the Territory, such
legislation shall also include all equivalent and applicable Canadian
legislation. The parties attorn to the Courts of the Province of
Ontario.
19. No Joint Venture
----------------
Nothing herein contained shall be construed to place the parties
in the relationship of principal and agent, partners or joint
venturers, and Licensee shall have no power to obligate or bind
Nabisco in any manner whatsoever.
20. Assignment or Sublicense
------------------------
a. Neither party may assign, convey or transfer this Agreement or any
part of its rights or obligations hereunder without the prior
written consent of the other party. Notwithstanding the
foregoing, (i) Nabisco acknowledges that Licensee is a party to a
certain Revolving Credit, Term Loan and Security Agreement dated
December 3, 1993, as amended, with the Bank of New York Commercial
Corporation ("BNYCC"), pursuant to which Licensee has assigned its
interest under this Agreement to BNYCC as collateral security for
the performance of its obligations thereunder, and that the
collateral security interest held by BNYCC or any other successor
financial institution shall not be deemed to be an assignment of
this Agreement, (ii) Licensee may assign, convey or transfer this
Agreement in the event of a Change of Control provided that
Nabisco shall not have exercised its right to terminate in
accordance with and in the manner set forth in Paragraph 20.b. of
this Agreement, and (iii) Nabisco may assign, convey or transfer
this Agreement in connection with a sale of all or substantially
all of the business or assets of Planters; provided, however,
that the prior written consent of Licensee shall be required to
assign this Agreement to any person who is engaged, directly or
indirectly, in the ready-to-eat caramel popcorn business. In the
event of a permitted assignment, conveyance or transfer, the
holder or holders through assignment, transfer or conveyance of
this Agreement or the rights granted hereunder shall be bound by
all of the terms and conditions hereof applicable to its
transferor.
b. Licensee shall provide prompt written notice to Nabisco in the
event of a Change of Control (as hereinafter defined). In such
event, Nabisco shall have the right, exercisable within thirty
days of the date of notice of a Change of Control, to terminate
this Agreement by written notice, effective thirty days after the
date of such notice of termination. In the event of termination
of this Agreement as a result of a Change of Control, the
provisions of Paragraph 14 shall apply. A "Change of Control"
shall mean (i) a sale of substantially all of the business and
assets of Licensee and (ii) any transaction or series of
transactions (including, without limitation, a tender offer,
merger or consolidation) the result of which is that any "person"
or "group" (within the meaning of Sections 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), other than Noel Group, Inc. ("Noel") becomes the
"beneficial owner" (as defined in Rule 13(d)(3) under the Exchange
Act) of more than 50% of the total aggregate voting power of all
classes of the voting stock of Licensee, and/or warrants or
options to acquire such voting stock, calculated on a fully
diluted basis. Notwithstanding anything to the contrary herein, a
transfer by Noel of its interest in Licensee to a "liquidating
trust" will not be deemed to be an assignment hereof.
c. Notwithstanding Paragraph 20.b., the acquisition of any majority
interest (i.e., 50% or more) of Licensee or Noel by a person or
entity that is a competitor of Nabisco in the snack foods business
shall be deemed an assignment for purposes of this Paragraph 20.
d. During the term of this Agreement and any renewal period, Licensee
shall promptly provide Licensor with copies of all Schedule 13D's
and Schedule 13G's (and all amendments thereto) filed with the
Securities and Exchange Commission relating to the beneficial
ownership of Licensee's common stock.
e. In the event Licensee assigns any benefits, rights, or duties
hereunder without Nabisco's prior written consent, Nabisco may, at
its sole discretion, terminate the agreement. Should this
agreement be so terminated, Licensee shall have no cause of action
against Nabisco in connection with such termination, including,
but not limited to, any claim for damages or compensation for
losses or expenses incurred, or for lost profits.
21. Exclusivity
-----------
During the Term and any Renewal Term of this Agreement, Licensee
or any other corporate entity in which Licensee has a majority
interest shall not enter into any licensing agreement with any other
person or entity for the development, manufacture, marketing or sale
in the Territory of any ready-to-eat caramelized popcorn or nut
product utilizing trademarks of any competitor of Nabisco in the nut,
candy or snack food category; provided, however, that nothing in the
foregoing shall prevent Licensee from entering into co-packing
arrangements with any other person or entity that is a competitor of
Nabisco in the candy, or snack food category, including, without
limitation, co-packing arrangements for private label manufacture;
and further provided that Licensee may, with Nabisco's prior written
approval, which shall not be unreasonably withheld or delayed, enter
into a licensing agreement with another person or entity that is a
competitor of Nabisco in the nut, candy or snack food category to
utilize trademarks of that person or entity solely for Licensee's
Screaming Yellow Zonkers and Poppycock caramelized popcorn products.
22. Waiver
------
The failure of any party hereto to enforce any provision of this
Agreement, or any right with respect thereto, or failure to exercise
any election provided for herein, shall in no way be considered a
waiver of such provision, right, or election, or in any way affect
the validity of this Agreement. The failure of any party hereto to
enforce any provision, right or election shall not prejudice such
party from later enforcing or exercising that provision, right, or
election which it has under this Agreement.
23. Severability
------------
In the event that any provision of this Agreement or any part
thereof is held by a court to be invalid, the remainder of this
Agreement shall be binding on the parties and construed as if the
invalid provisions or parts thereof have been deleted from this
Agreement.
24. Paragraph/Paragraph Order and Headings
--------------------------------------
The section/paragraph order and headings are for convenience only
and shall not be deemed to affect in any way the language,
obligations or the provisions to which they refer.
25. Entire Agreement
----------------
This Agreement sets forth the entire understanding of the parties
in respect of the subject matter hereof, and it may be amended or
modified only in writing executed by each party hereto.
26. Confidentiality
---------------
Except as otherwise required by law, each party to this Agreement
shall maintain the terms of this Agreement in confidence and shall
not disclose the terms to any person except only to the extent
necessary to that party's employees or, in the case of Nabisco, to
the employees of its parent company, Nabisco, Inc., or to that
party's legal, accounting and banking counsel as required to
implement the Agreement. Neither party shall issue a public
statement concerning or announcing this Agreement without the written
consent of the other party, which shall not be unreasonably withheld
or delayed.
NABISCO LTD LINCOLN SNACKS COMPANY
By: /s/ W.H.M. Wilson By: /s/ Kristine A. Crabs
-------------------------- --------------------------------
W.H. MICHAEL WILSON Name: Kristine A. Crabs
Senior Vice President, Title: Chief Financial Officer
Personnel & Administration
By: /s/ Simon Gulden
-------------------------
SIMON GULDEN c/s
Vice President, General
Counsel & Secretary
</PAGE>
<PAGE>
EXHIBIT 1
FIDDLE FADDLE SKUs
UPC PRODUCT CASE PACK/SIZE
- ---------------------------------------------------------------------
8085 5 oz. Butter Toffee Fiddle Faddle 12/5 oz.
8075 5 oz. Caramel Fiddle Faddle 12/5 oz.
8046 4.25 oz. Low Fat Fiddle Faddle 12/4.25 oz.
98214-0 10 oz. Caramel Fiddle Faddle 12/10 oz.
98233-0 10 oz. Butter Toffee Fiddle Faddle 12/10 oz.
98433-0 8.5 oz. Fat Free Fiddle Faddle 12/8.5 oz.
98228-0 15 oz. Caramel Fiddle Faddle 12/15 oz.
98247-0 15 oz. Butter Toffee Fiddle Faddle 12/15 oz.
98447-0 12.7 oz. Fat Free Fiddle Faddle 12/12.7 oz.
</PAGE>
<PAGE>
EXHIBIT 2
EARNED NET SALES STATEMENT
FOR
PRODUCT:-----------------------------------------------------------
QUARTER ENDED:-----------------------------------------------------
SALES CURRENT QUARTER
# of Units Sold ------- Gross Sales -------
Less: Cash discounts and returns. ( )
Documentation submitted herewith.
Net Sales -------
SALES CONTRACT YEAR TO DATE
# of Units Sold ------- Gross Sales -------
Less: Cash Discounts and returns. ( )
Documentation to be submitted herewith.
Net Sales -------
</PAGE>
