Exhibit 4.4


 


abcdefg


 


Variation Agreement (Sub-Licence)


 


 


Merola Finance B.V.


 


And


 


United Biscuits Iberia S.L.


 


 


18 February 2003


 

















 


THIS AGREEMENT is made on 18 February
2003


 


BETWEEN:


 


(1)                                      MEROLA
FINANCE B.V. a company incorporated in the
Netherlands whose registered office is at Konigslaan 34, 1075AD, Amsterdam, The
Netherlands (“Merola”); and


 


(2)                                      UNITED
BISCUITS IBERIA S.L., formerly known as NABISCO
IBERIA S.L. a Spanish limited liability company with tax
identification number B80662950 whose registered office is c/o Conde De
Penalver, no. 38, Madrid, Spain (“Iberia”).


 


RECITALS


 


(A)                                  Merola and Iberia are parties to an agreement dated 11 July 2000
relating to the sub-licence of trade marks to Iberia and a letter amending the
sub-licence dated 27 September 2000 (together, the “Trade Mark Sub-Licence Agreement”).


 


(B)                                    This agreement is entered into pursuant to a Deed of Settlement of
even date herewith in which it has been agreed that Iberia shall surrender its
rights in respect of certain trade marks granted under the Trade Mark
Sub-Licence Agreement in respect of the Relevant Markets (as defined in the
Deed of Settlement) and as a result the parties hereto have agreed to amend the
terms of the Trade Mark Sub-Licence Agreement as set out in this variation
agreement.


 


THE PARTIES AGREE AS FOLLOWS:


 


1.                                           All terms defined in the Trade Mark Sub-Licence Agreement shall have
the same meaning in this agreement, unless the context otherwise requires.


 


2.                                           The parties hereto agree that with effect from the date hereof, the
Trade Mark Sub-Licence Agreement shall be amended as follows:


 


(a)                               schedule 1 (Marks) shall be amended by the deletion or removal of
the trade marks set out in schedule 1 to this agreement;


 


(b)                              schedule 3 (Licensed Territory) shall be amended as follows:


 


(i)                               in the column headed “Africa”, “Egypt” shall be deleted;


 


(ii)                            the column headed “Middle East” shall be deleted and replaced with
the following:-


 


“Middle East


 


Iraq


Iran


Israel


Syria”.


 


1

















 


3.                                       For the avoidance of doubt the parties agree that clause 13.1 (a),
(b), (c) and (e) of the Trade Mark Sub-Licence Agreement shall apply to
Products bearing any of the trade marks set out in schedule 1 produced or
manufactured in any of the countries where those trade marks are registered
save that the three month termination period in clause 13.1(c)(ii) thereof
shall be replaced by a six month termination period.


 


4.                                       For the purpose of this clause 4:


 


“1999 EBITDA” shall mean the earnings before
interest, tax, depreciation and amortisation for the period to 31 December 1999
in respect of sales of Chips Ahoy and Teddy Grahams from Iberia to the Relevant
Markets.


 


“Consideration Payment” shall be the sum of
US$959,000 or, in the event that the 1999 EBITDA is less than US$137,000,
seven times such lesser amount.


 


4.1                                 In consideration of Iberia entering into this agreement Merola
agrees to pay to Iberia the Consideration Payment.


 


4.2                                 The Consideration Payment will be paid in the following manner:


 


(a)                                  Merola shall pay to Iberia immediately following the date of this
Agreement the sum of US$959,000 on account of the Consideration Payment (the “On Account
Payment”); and


 


(b)                                 the parties shall negotiate in good faith with a view to agreeing
the Consideration Payment and, in the event that they are either unable to
agree or have not reached agreement by a date one calendar month after the date
on which the parties enter into this agreement, the following procedure will be
instigated:


 


(i)                                     the parties will forthwith jointly instruct an independent firm of
internationally recognised chartered accountants (to be agreed by the parties
or, failing agreement, to be selected, on the application of either of them, by
the President for the time being of the Institute of Chartered Accountants in
England and Wales or his duly appointed deputy) (the “Expert”) to calculate the
value of the Consideration Payment, acting for this purpose as an expert (and
not as an arbitrator);


 


(ii)                                  the parties will each provide the Expert with such information as
may be reasonably accessible and such assistance as the Expert shall reasonably
require to enable the calculation to be made;


 


(iii)                               subject to (ii) above the Expert shall determine the procedure to be
followed to enable it to carry out its duties;


 


(iv)                              each party shall bear the costs and expenses of all counsel and
other advisers, witnesses and employees retained by it in connection with the
said determination;


 


(v)                                 the costs and expenses of the Expert shall be borne by Merola and
Iberia in such proportions as the Expert shall, in its absolute discretion
determine. If the


 


2

















 


Expert makes no such determination its
costs and expenses shall be borne by Merola and Iberia in equal proportions.


 


4.3                                 If it is thereafter determined under Clause 4.3 above, or agreed,
that the Completion Payment:


 


(a)                                  exceeds the On Account Payment then Merola shall pay the difference
to Iberia, or


 


(b)                                 is less than the On Account Payment then Iberia shall pay the difference
to Merola,


 


then any such payment shall be made within
five days of such determination or agreement, provided that such payment shall
not exceed 10% of the On Account Payment.


 


4.4                                 The Completion Payment paid pursuant to clause 4.2 of this agreement
and any payment by Merola pursuant to clause 4.3 (if any) shall be paid to the
account set out below:


 


American Express Bank Ltd, New York

Swift Code: AEIBUS33

Account of: The Royal Bank of Scotland, London (RBOSGB2L)

CHIPS ABA: 0159

FED WIRE ABA: 1240-7188-9

Beneficiary: United Biscuits (UK) Ltd

Account: UNBIUKGT-USD-A


 


and receipt by such bank of such sum shall
be good discharge to Merola.


 


5.                                       Save as provided in this agreement, the Trade Mark Sub-Licence
Agreement shall remain in full force and effect.


 


6.                                       No term of this Agreement is enforceable under the Contracts (Rights
of Third Parties) Act 1999 by a person who is not a party to this
Agreement.


 


7.                                       This agreement (and any dispute, controversy, proceedings or claim
of whatever nature arising out of or in any way relating to this agreement or
its interpretation) shall be governed by and construed in accordance with
English law.


 


8.                                       Each of the parties to this agreement irrevocably agrees that the
courts of England shall have exclusive jurisdiction to hear and decide any
suit, action or proceedings and/or to settle any disputes which may arise out
of or in connection with this agreement and, for these purposes, each party
irrevocably submits to the jurisdiction of the courts of England.


 


IN WITNESS whereof this agreement has
been executed on the date first above written.


 


3

















 


SCHEDULE


Part 1 - Registered Trade Marks


 


1.                                       EGYPT


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  OREO

  	
   

  	
  79784

  	
   

  	
  May 6, 1991

  	
   

  



 


2.                                       JORDAN


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  OREO

  	
   

  	
  29569

  	
   

  	
  July 16,
  1991

  	
   

  



 


3.                                       KUWAIT


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  OREO

  	
   

  	
  23040

  	
   

  	
  December 31,
  1991

  	
   

  



 


4.                                       LEBANON


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  OREO

  	
   

  	
  56210

  	
   

  	
  September
  12, 1991

  	
   

  



 


5.                                       OMAN


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  OREO

  	
   

  	
  5711 (APPLN)

  	
   

  	
  July 7, 1991

  	
   

  



 


6.                                       QATAR


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  OREO

  	
   

  	
  8945

  	
   

  	
  March 25,
  1998

  	
   

  



 


7.                                       SAUDI ARABIA


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  OREO

  	
   

  	
  245/47

  	
   

  	
  December 2,
  1991

  	
   

  



 


8.                                       U.A.E.


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  OREO

  	
   

  	
  8721

  	
   

  	
  February 24,
  1997

  	
   

  



 


4

















 


9.                                       YEMEN


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  OREO

  	
   

  	
  6349

  	
   

  	
  March 19,
  1997

  	
   

  



 


10.                                 EGYPT


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  CHIPS AHOY!

  	
   

  	
  79782

  	
   

  	
  May 6, 1991

  	
   

  



 


11.                                 JORDAN


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  CHIPS AHOY!

  	
   

  	
  29034

  	
   

  	
  July 14,
  1991

  	
   

  



 


12.                                 KUWAIT


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  CHIPS AHOY!

  	
   

  	
  23038

  	
   

  	
  December 31,
  1991

  	
   

  



 


13.                                 LEBANON


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  CHIPS AHOY!

  	
   

  	
  56207

  	
   

  	
  September
  12, 1991

  	
   

  



 


14.                                 OMAN


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  CHIPS AHOY!

  	
   

  	
  5706 (APPLN)

  	
   

  	
  July 7, 1991

  	
   

  



 


15.                                 QATAR


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  CHIPS AHOY!

  	
   

  	
  8948

  	
   

  	
  March 25,
  1998

  	
   

  



 


16.                                 SAUDI
ARABIA


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  CHIPS AHOY!

  	
   

  	
  245/52

  	
   

  	
  December 2,
  1991

  	
   

  



 


17.                                 U.A.E.


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  CHIPS AHOY!

  	
   

  	
  8712

  	
   

  	
  February 24,
  1997

  	
   

  



 


5

















 


18.                                 YEMEN


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  CHIPS AHOY!

  	
   

  	
  6343

  	
   

  	
  March 19,
  1997

  	
   

  



 


19.                                 EGYPT


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  RITZ

  	
   

  	
  37977

  	
   

  	
  November 8,
  1960

  	
   

  
	
  RITZ & PACKAGE DESIGN IN COLOR

  	
   

  	
  37597

  	
   

  	
  August 2,
  1960

  	
   

  



 


20.                                 JORDAN


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  RITZ

  	
   

  	
  5866

  	
   

  	
  June 13,
  1995

  	
   

  
	
  RITZ PACKAGE DESIGN

  	
   

  	
  29028

  	
   

  	
  July 16,
  1991

  	
   

  



 


21.                                 KUWAIT


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  RITZ PACKAGE DESIGN

  	
   

  	
  23042

  	
   

  	
  December 31,
  1991

  	
   

  
	
  RITZ

  	
   

  	
  23829

  	
   

  	
  December 31,
  1991

  	
   

  



 


22.                                 LEBANON


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  RITZ

  	
   

  	
  47548

  	
   

  	
  June 23,
  1955

  	
   

  
	
  RITZ PACKAGE DESIGN IN COLOR

  	
   

  	
  28193

  	
   

  	
  February 27,
  1958

  	
   

  
	
  RITZ PACKAGE DESIGN IN B&W

  	
   

  	
  47550

  	
   

  	
  June 23,
  1955

  	
   

  



 


23.                                 OMAN


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  RITZ & RITZ PACKAGE DESIGN (NECKLACE)

  	
   

  	
  5702 (APPLN)

  	
   

  	
  July 7, 1991

  	
   

  
	
  RITZ

  	
   

  	
  5095

  	
   

  	
  May 22, 1999

  	
   

  



 


24.                                 QATAR


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  RITZ

  	
   

  	
  8825

  	
   

  	
  March 25, 1998

  	
   

  
	
  RITZ (NECKLACE) PACKAGE DEVICE (IN COLOR)

  	
   

  	
  8951

  	
   

  	
  November 17,
  1999

  	
   

  



 


6

















 


25.                                 SAUDI
ARABIA


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  RITZ PACKAGE DESIGN IN COLOR

  	
   

  	
  1577

  	
   

  	
  June 25,
  1963

  	
   

  
	
  RITZ

  	
   

  	
  18045

  	
   

  	
  December 12,
  1987

  	
   

  
	
  RITZ PACKAGE DESIGN

  	
   

  	
  17/86

  	
   

  	
  August 24,
  1964

  	
   

  



 


26.                                 U.A.E.


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  RITZ PACKAGE DESIGN

  	
   

  	
  9580

  	
   

  	
  March 10,
  1997

  	
   

  
	
  RITZ

  	
   

  	
  9579

  	
   

  	
  March 10,
  1997

  	
   

  



 


27.                                 YEMEN


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  RITZ

  	
   

  	
  6351

  	
   

  	
  March 19,
  1997

  	
   

  



 


28.                                 EGYPT


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  TEDDY GRAHAMS

  	
   

  	
  79785

  	
   

  	
  May 6, 1991

  	
   

  



 


29.                                 JORDAN


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  TEDDY GRAHAMS

  	
   

  	
  29035

  	
   

  	
  July 14,
  1991

  	
   

  



 


30.                                 KUWAIT


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  TEDDY GRAHAMS

  	
   

  	
  23139

  	
   

  	
  December 4,
  1997

  	
   

  



 


31.                                 LEBANON


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  TEDDY GRAHAMS

  	
   

  	
  56211

  	
   

  	
  September
  12, 1991

  	
   

  



 


32.                                 OMAN


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  TEDDY GRAHAMS

  	
   

  	
  5712 (APPLN)

  	
   

  	
  July 7, 1991

  	
   

  



 


7

















 


33.                                 QATAR


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  TEDDY GRAHAMS

  	
   

  	
  8952 (APPLN)

  	
   

  	
  July 30,
  1991

  	
   

  



 


34.                                 SAUDI
ARABIA


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  TEDDY GRAHAMS

  	
   

  	
  245/53

  	
   

  	
  December 2,
  1991

  	
   

  



 


35.                                 U.A.E.


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  TEDDY GRAHAMS

  	
   

  	
  8719

  	
   

  	
  February 24,
  1997

  	
   

  



 


36.                                 YEMEN


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  TEDDY GRAHAMS

  	
   

  	
  6352

  	
   

  	
  March 19,
  1997

  	
   

  



 


37.                                 SAUDI
ARABIA


 


	
  TRADEMARK

  	
   

  	
  APPLN./REG.
  NUMBER

  	
   

  	
  APPLN./REG.
  DATE

  	
   

  
	
  AIR CRISPS

  	
   

  	
  430/47

  	
   

  	
  March 22,
  1998

  	
   

  



 


8

















 


Part 2 - Unregistered Trade Marks


 


Mark


 


OREO


CHIPS AHOY!


RITZ


TEDDY GRAHAMS


AIR CRISPS


NABISCO


CORNER TRIANGLE


 


Which are used in any of the following countries:


 


Saudi Arabia


Oman


Lebanon


Jordan


Qatar


Egypt


Bahrain


Yemen


Kuwait


United Arab Emirates


 


9

















 


	
  Executed and delivered by 

  	
  )

  	
  Robert Bradish/s/

  	
   

  
	
   

  	
  )

  	
   

  
	
  for and on behalf of 

  MEROLA
  FINANCE B.V.  

  under a power of attorney dated 

  9 January 2003

  in the presence of:

  Name:  Harold Heck

  	
  )

  )

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:         Kew
  House, Capital Interchange Way,

  Brentford TW8 0EX

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature: 

  	
  Hank Heck/s/

  	
   

  	
   

  	
   

  
						



 


 


	
  Signed by

  	
  )

  	
  Juan Casaponsa Sitjas/s/

  	
   

  
	
  for and on behalf of

  	
  )

  	
  Inaki Aguirre/s/

  	
   

  
	
  UNITED BISCUITS IBERIA S.L.

  	
  )

  	
   

  
	
  in the presence of:

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
  Montserrat Serra/s/

  	
   

  	
   

  	
   

  
						



 


10