EXECUTION COPY
NON-GROCERY DISTRIBUTION AGREEMENT
BETWEEN
INTEGRATED BRANDS, INC.
AND
DREYER'S GRAND ICE CREAM, INC.
DATED AS OF JULY 5, 2003
This NON-GROCERY DISTRIBUTION AGREEMENT (this "Agreement"), dated as
of July 5, 2003, is by and between Integrated Brands, Inc., a New Jersey
corporation ("Integrated Brands"), and Dreyer's Grand Ice Cream, Inc., a
Delaware corporation ("Dreyer's").
WHEREAS, Dreyer's, Nestle Ice Cream Company, LLC, a Delaware limited
liability company ("NICC"), New December, Inc., a Delaware corporation, and
Integrated Brands have entered into an Amended and Restated Asset Purchase and
Sale Agreement, as amended and restated on June 4, 2003 (the "Asset Sale
Agreement"), pursuant to which, among other things, Integrated Brands shall
purchase and Dreyer's and NICC shall sell, or cause to be sold, subject to the
terms and conditions thereof, the Ice Cream Assets (as defined in the Asset Sale
Agreement) and the Distribution Assets (as defined in the Asset Sale Agreement);
and
WHEREAS, in connection with the Asset Sale Agreement, Dreyer's desires
that Integrated Brands provide to Dreyer's, and Integrated Brands is willing to
provide, or cause to be provided, to Dreyer's, certain distribution services
following the closing of the transactions contemplated by the Asset Sale
Agreement, on the terms and conditions set forth herein; and
WHEREAS, as an essential part of the transactions contemplated by the
Asset Sale Agreement, Integrated Brands has agreed to provide such distribution
services to Dreyer's to facilitate Integrated Brands' acquisition of the Ice
Cream Assets and the Distribution Assets; and
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions. For all purposes of this Agreement, except as expressly
provided or unless the context otherwise requires, the following definitions
shall apply:
"Business" shall mean Integrated Brands' frozen dessert distribution
business in the Territories.
"Customer" shall mean any Person that purchases the Products in the
Non-Grocery Channel from Dreyer's and to whom Dreyer's from time to time
hereunder directs Integrated Brands to deliver the Products.
"Grocery Carrier Agreement" shall mean the Grocery Carrier Agreement,
dated the date hereof, by and between Dreyer's and Integrated Brands.
"Non-Grocery Channel" shall mean [ORIGINAL TEXT REDACTED].
"Maximum Annual Volume" with respect to any Territory shall mean the
difference between (X) the sum of (A) the designated dollar volume (calculated
as the number of units multiplied by the applicable Service and Delivery
Charges) that is set forth on Exhibit B for that Territory, during that Year and
(B) any remaining Supplemental Annual Volume for such Year that has not been
applied to any other Territory under this Agreement or the Grocery Carrier
Agreement during that Year and (Y) the number of units delivered under the
Grocery
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Carrier Agreement in such Territory multiplied by the applicable Delivery
Charges (as defined in the Grocery Carrier Agreement).
"Person" shall mean any natural person or legal entity.
"Products" shall be set forth on Exhibit A.
"Supplemental Annual Volume" for each Year shall mean the maximum
dollar volume (calculated as the number of units multiplied by the applicable
Service and Delivery Charges) that is set forth on Exhibit B as "Supplemental
Annual Volume" for that Year, and which is a supplemental amount that can be
included in the calculation of the Maximum Annual Volume of any Territory or
Territories (under this Agreement or the Grocery Carrier Agreement) during that
Year (subject to available demand for the Products in that Territory).
"Territories" shall mean the territories set forth on Exhibit B
[ORIGINAL TEXT REDACTED], including, without limitation, the counties in such
Territories that are set forth on Exhibit C, and "Territory" shall have a
correlative meaning.
"Year" shall mean any year, beginning as of the Closing Date, during
the Term.
2. Scope of Agreement. Dreyer's hereby grants to Integrated Brands a
non-transferable right pursuant to the terms of this Agreement, to warehouse,
store, deliver and merchandise the Products to Customers in the Territories on a
non-exclusive basis.
3. Title to the Products and Risk of Loss.
(a) Title to the Products shall not transfer to Integrated Brands at
any point. Dreyer's is solely responsible for arranging for the terms of the
transfer of title from itself to its Customers.
(b) Integrated Brands assumes all risk of loss for the Products from
receipt by Integrated Brands until delivered to a Customer.
4. Term. The "Initial Term" of this Agreement shall be three (3) years,
beginning as of the Closing Date (as defined in the Asset Sale Agreement). After
the expiration of the Initial Term, Integrated Brands shall have the option to
extend this Agreement for up to two (2) years (the "Extended Term") (the Initial
Term and the Extended Term shall be referred to as the "Term").
5. Delivery of the Products to Customers.
(a) Integrated Brands will deliver the Products to Customers as
directed by Dreyer's.
(b) On the Closing Date, and on each anniversary date thereafter
during the Term, Dreyer's shall provide Integrated Brands with a report
containing annualized volumes of each of the Products by Customer for all
Customers within the Territories (the "Volume Report"). Integrated Brands shall
have the right to elect to deliver Products from time to time in
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accordance with this Section 5. If Integrated Brands elects to deliver any
Products hereunder, it shall provide to Dreyer's a list of (i) the Customers (or
any locations at which any such Customers receive deliveries of Products to
which Integrated Brands elects to deliver), (ii) the applicable Products (or
portion of Products (e.g., select flavors, container sizes or novelty types
within a class of Products as Integrated Brands may select), and (iii) the
volume (or portion of volume) of Products (or portion of Products) which
Integrated Brands elects to deliver, in each case for each such Customer (or
select Customer locations) to which Integrated Brands shall make deliveries;
provided, however, that such election must be in writing and provided to
Dreyer's at least 14 days prior to the commencement of Integrated Brands'
deliveries of Product hereunder. During the Term, Integrated Brands shall
deliver such Products to such Customers in the Territories in accordance with
its election; provided, however, that during each Year, the maximum volume of
Products that may be delivered by Integrated Brands in each Territory is that
number of units which, when multiplied by the applicable Service and Delivery
Charges, shall result in the Maximum Annual Volume for that Territory.
Integrated Brands shall have the right to modify, at any time upon 14 days'
written notice to Dreyer's, the selected Customers (or Customer locations) to
which the Products are delivered by Integrated Brands, the selected Products (or
portions of Products) for such Customers (or locations), and the volume (or
portion of volume) of Products for such Customers which are delivered by
Integrated Brands. Dreyer's shall have the obligation to provide such volumes of
Customer orders (or portions thereof) for delivery of the Products to Integrated
Brands at a location designated by Integrated Brands as Integrated Brands shall
request in writing on a weekly basis with seven (7) days' written notice;
provided that, to facilitate day-to-day route planning, daily ordering
information from Dreyer's "pre-seller" Customers shall be sent to Integrated
Brands facilities electronically or via facsimile.
6. Fees and Payments. In consideration for the services provided by
Integrated Brands to Dreyer's under this Agreement, during the Initial Term
Dreyer's will pay to Integrated Brands a per unit charge as set forth in Exhibit
A (the "Service and Delivery Charges") within thirty (30) days of receipt of an
invoice. During the Extended Term, the Service and Delivery Charges for the
Products shall be the per unit charge in effect at the expiration of the Initial
Term, plus an annual increase equal to the PPI for the preceding Year.
7. Promotion and Marketing Support. Integrated Brands agrees to execute
Dreyer's promotional and marketing support for the Products. Such support shall
include, but not be limited to, placing and maintaining point-of-sale and/or
display materials as well as distributing marketing or promotion materials to
Customers of Dreyer's. Notwithstanding anything to the contrary in this
Agreement, Integrated Brands shall not pay for, in whole or in part, any trade,
promotional, or marketing programs of Dreyer's.
8. Performance Criteria. Integrated Brands agrees to treat all of the
Products in substantially the same manner as Integrated Brands treats its own
products with respect to warehousing, storage, delivery and merchandising.
Without limiting the generality of the foregoing and in addition to the duties
and obligations set forth in Sections 9 and 10, Integrated Brands agrees that:
(a) all of the Products must be held in storage which is maintained at
a constant temperature of -15[d]F or colder at all times;
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(b) all delivery vehicles must operate at temperatures of -5[d]F or
colder at all times; and
(c) the Products stored in a warehouse, on trucks, in back-up storage
and in cabinets is rotated regularly on a first-in, first-out basis.
9. Integrated Brands Duties. Integrated Brands covenants and agrees that
during the Term it will use commercially reasonable efforts, as such efforts
relate to the distribution of the Products, to:
(a) deliver the Products so that all Customers regularly receive
frequent deliveries of the Products, and so that each Customer maintains a
sufficient inventory of the Products, in the sizes, varieties and flavors to
meet the demand of the Products at each store;
(b) maintain relationships with Customers for the Products in a manner
consistent with that maintained by Integrated Brands for its own customers;
(c) upon Dreyer's reasonable request and with reasonable notice,
provide delivery data with respect to the Products in the manner maintained by
Integrated Brands in the ordinary course of business;
(d) promptly perform all services necessary to execute a Product
recall or recovery of Product when requested by Dreyer's and at Dreyer's
expense;
(e) comply with all applicable laws, ordinances, regulations, licenses
and permits of or issued by any federal, state or local governmental entity,
agency or instrumentality;
(f) meet periodically with Dreyer's to review Integrated Brands
performance;
(g) properly handle and present the Products in a manner appropriate
to the type of Customer being serviced;
(h) advise Dreyer's promptly of any defects in the Products or of any
Customer complaints with respect to the Products which come to Integrated Brands
attention;
(i) notify Dreyer's immediately of Integrated Brands inability to
fully perform any of its duties or obligations hereunder;
(j) permit Dreyer's personnel to make periodic audits upon reasonable
notice of Integrated Brands facilities and vehicles used for distribution of the
Products in accordance with Section 12 of this Agreement;
(k) in a manner consistent with that provided by Integrated Brands for
its own products, at all times act so as to preserve and enhance the high
quality image, reputation and goodwill of Dreyer's and the Products;
(l) upon receipt of timely advance written notice from Dreyer's to
Integrated Brands, discontinue any advertising or promotional practices on
behalf of the Products; and
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(m) submit complete and accurate notices, reports, claims and requests
for payment.
10. Quality Control. Integrated Brands shall, in a manner consistent with
that provided by Integrated Brands for its own products, take all necessary
actions to ensure the quality control of the Products. These actions shall
include, but not be limited to:
(a) observance of the Products' code-date requirements;
(b) proper stock rotation in Integrated Brands warehouses, vehicles
and at Customer locations;
(c) proper handling and protection from damage of all of the Products
and their containers;
(d) delivery of the Products solely in their original containers;
(e) maintenance of clean operations, controlled-temperature
warehouse(s) and delivery vehicles of sufficient capacity to meet the inventory,
storage and quality-control requirements hereunder;
(f) maintenance of temperature control program showing storage
temperature at each point-of-control of the Products by Integrated Brands; and
(g) where Integrated Brands provides such services for its own
products, provision of pack-out and full retail case services including stocking
and stock rotation at the store level so as to ensure that the Products reaching
consumers have been exposed only to properly maintained temperatures and bear
current code dates.
11. Sales to Customer. Dreyer's shall be solely responsible for
establishing the price at which Dreyer's Products are sold to Customers.
Dreyer's is also solely responsible for suggesting resale shelf prices of the
Products to Customers. Integrated Brands shall receive no information from
Dreyer's, and shall not solicit any such information from Customers of Dreyer's,
regarding suggested resale shelf prices of the Products. [ORIGINAL TEXT
REDACTED]
12. Inspections.
(a) Without limiting any rights that may exist in any other Collateral
Agreement (as defined in the Asset Sale Agreement), Dreyer's shall have the
following inspection rights. Integrated Brands agrees to permit Dreyer's or
Dreyer's independent inspection service during the term of this Agreement, upon
twenty-four (24) hours' written notice to Integrated Brands, during Integrated
Brands business hours, to inspect the trucks and warehouses (or any other
Integrated Brands facility where the Products are stored with Dreyer's approval)
at each Integrated Brands distribution center to the extent they relate to
Integrated Brands performance of its obligations hereunder and for a bona fide
business purpose; provided, however, that such inspection shall not unreasonably
interfere with the operation of such trucks or facilities and shall otherwise
comply with Integrated Brands policies with respect to such
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trucks or facilities, and that Integrated Brands may reasonably restrict access
such that Dreyer's is not permitted to enter those portions of the facilities
where only Integrated Brands own products are being stored to the extent
necessary to protect Integrated Brands trade secrets and other confidential
information; provided, however, that Integrated Brands may not restrict Dreyer's
access to those portions of the facilities where the Products are being stored.
Integrated Brands acknowledges and agrees that the inspection rights contained
in this Agreement are solely for Dreyer's benefit, and that neither the fact of
whether or not any inspection occurred, nor the quality of any such inspection,
nor any determination made by Dreyer's as a result of any such inspection, shall
be deemed to relieve Integrated Brands of any of its obligations under this
Agreement.
(b) Dreyer's shall have the right to audit the financial and delivery
records of Integrated Brands that relate solely to Integrated Brands performance
of this Agreement. Integrated Brands must provide, only to the extent that they
exist, the requested documents within seventy-two (72) hours of a written
request. If any such audit reveals that Dreyer's has overpaid amounts due to
Integrated Brands hereunder, Integrated Brands shall promptly remit such
overpayment to Dreyer's. In the event that any such overpayment individually, or
in the aggregate, as of the date of audit overstates the amount due by more than
five percent (5%), then Integrated Brands shall bear any costs incurred by
Dreyer's in connection with such audit and shall remit to Dreyer's the amount of
such overpayment together with interest thereon from the originally due date
through the date of payment at a rate equal to the Citibank prime interest rate
per annum. In the event that any such underpayment individually, or in the
aggregate, as of the date of audit understates the amount due by more than five
percent (5%), then Dreyer's shall bear any costs incurred by Integrated Brands
in connection with such audit and, Dreyer's shall pay to Integrated Brands the
amount of such underpayment within ten (10) business days.
13. Representations of Integrated Brands. Integrated Brands represents and
covenants to Dreyer's that: (a) it has the legal power and authority to enter
into this Agreement; (b) it has not previously entered into any agreement or
understanding which conflicts with any rights or obligations set forth in this
Agreement; and (c) it will fully comply with all applicable laws, ordinances,
regulations, licenses and permits of or issued by any federal, state or local
governmental entity, agency or instrumentality.
14. Representations of Dreyer's. Dreyer's represents and covenants to
Integrated Brands that: (a) it has the legal power and authority to enter into
this Agreement; (b) it has not previously entered into any agreement or
understanding which conflicts with any rights or obligations set forth in this
Agreement; and (c) it will fully comply with all applicable laws, ordinances,
regulations, licenses and permits of or issued by any federal, state or local
governmental entity, agency or instrumentality.
15. Termination.
(a) Integrated Brands may terminate, in its sole discretion, this
Agreement upon ninety (90) days' written notice to Dreyer's.
(b) Either party may terminate this Agreement, without notice, if the
other party: (i) files a voluntary petition under any bankruptcy or insolvency
law, or files a voluntary
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petition under the reorganization or arrangement provisions of any law of any
jurisdiction, or have proceedings under any such laws instituted against it
which are not terminated within ninety (90) days of such commencement; (ii)
becomes insolvent, bankrupt, or admits in writing its inability to pay all debts
as they mature or makes a general assignment for the benefit of or enters into
any composition or arrangement with creditors; (iii) authorizes, applies for, or
consents to the appointment of a receiver, trustee or liquidator of all or a
substantial part of its assets, or has proceedings seeking such appointment
commenced against it which are not terminated within ninety (90) days of such
commencement.
(c) Integrated Brands may terminate, in its sole discretion, this
Agreement immediately if Dreyer's ceases business operations with respect to all
of the Products.
(d) Integrated Brands understands that Dreyer's is under no obligation
to extend the Term or to enter into subsequent agreements with Integrated
Brands. Acceptance of one or more orders after notice of termination hereof
shall not be construed as a renewal or extension hereof or as a waiver of
termination.
(e) Termination of this Agreement for any reason provided herein shall
not relieve either party from its obligation to perform up to the effective date
of such termination or to perform such obligations as may be capable of
performance after termination.
(f) Neither party will be liable for delays in performance or a
failure to perform hereunder (except where such performance relates to the
payment of money) due to causes beyond its reasonable control, including acts of
nature, acts of any government, wars, terrorism, riots, fires, floods,
accidents, strikes, communication failures, state or local power failures or
blackouts, or embargoes; provided, however, in the event Integrated Brands
performance of its distribution duties hereunder is impaired by any such cause,
it will continue in all respects to treat Dreyer's Products in substantially the
same manner that Integrated Brands treats its own products as provided in
Section 10 hereof.
(g) Upon the expiration or termination of this Agreement: (i) neither
party will be liable to the other because of such expiration or termination for
damages on account of the loss of prospective profits, goodwill, or on account
of, leases or commitments in connection with the business of Integrated Brands
or of Dreyer's, or for any other reason whatsoever arising from such expiration
or termination; (ii) Integrated Brands will not be deemed to be an authorized
distributor of the Products; (iii) Dreyer's will promptly pay all amounts owing
Integrated Brands including any such amounts that might have previously become
due at some future date because of deferred payment or credit agreements; and
(iv) all unshipped orders will be canceled without liability of either party to
the other.
16. Insurance. Integrated Brands is responsible for maintaining insurance,
at its sole cost and expense, to protect itself from the following: (i) claims
under workers' compensation and/or state disability acts; (ii) claims for
damages because of bodily injury, sickness or death of any of its employees or
any other person that arise out of any negligent act or omission of Integrated
Brands, its employees or agents, if any; (iii) claims for damages because of
injury to or destruction of tangible personal property, including loss of use
resulting therefrom, that arise from any negligent act or omission of Integrated
Brands, its employees or agents, if any; and (iv)
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claims for damages because of bodily injury, sickness or death that arise out of
the Products due to Integrated Brands acts or omissions and shall cause Dreyer's
to be named as an additional insured on such insurance. The amount of coverage
for each of the above must be reasonable based on the volume of the Products
delivered by Integrated Brands, but in no event will the coverage for general
liability insurance be less than [ORIGINAL TEXT REDACTED] per occurrence and
[ORIGINAL TEXT REDACTED] in aggregate general commercial liability coverage.
17. Warranty and Indemnification.
(a) Dreyer's will indemnify Integrated Brands from any claim or
damages, including reasonable attorneys' fees and costs, arising out of a
non-compliant Product not manufactured by Integrated Brands or its Affiliates;
provided, however, that Integrated Brands gives Dreyer's immediate written
notice of any loss or claim and cooperates fully with Dreyer's in the handling
of such claims.
(b) Integrated Brands, at its own expense, will at all times indemnify
and hold harmless Dreyer's and its Affiliates and their respective directors,
officers, employees and agents, and its Customers and upon request will defend
the same against all actions, proceedings, claims, demands, losses, suits,
outlays, damages, judgments, penalties or expenses and liabilities of any kind
or nature, including reasonable legal fees and other costs, that may be assessed
against Dreyer's or its Customers or which Dreyer's or its Customers may incur
directly or indirectly in connection with or arising out of defects in the
storage and delivery to Customers of the Products.
(c) Dreyer's shall give Integrated Brands prompt notice of any claim
or suit coming within the scope of the indemnity under Section 17(b). Upon the
written request of an indemnitee, the indemnitor will assume the defense of a
claim, demand or action against such indemnitee and will upon the request of the
indemnitee, allow the indemnitee to participate in the defense thereof, such
participation to be at the expense of the indemnitee. Settlement by the
indemnitee without the indemnitor's prior written consent shall release the
indemnitor from the indemnity as to the claim, demand, or action so settled.
Termination of this Agreement shall not affect the continuing obligations of
each of the parties as indemnitors hereunder.
(d) THE EXPRESS WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(e) Either party shall be entitled to seek injunctive relief or
specific performance.
18. Management of Business. Except to the extent that the specific
provisions of this Agreement expressly provide otherwise, Dreyer's reserves to
itself the unqualified right to manage its business in all respects, including
without limitation, the right to maintain or alter the flavors, formula,
ingredients, labeling, packaging and advertising, marketing and sales of the
Products. In the event that Integrated Brands is restricted in the delivery of
the Products by
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capacity limitations or due to any of the several acts described in Section
15(f) herein or otherwise, Integrated Brands shall not be compelled to honor
Customer orders without due regard to availability, demand by other Customers,
and inventory on hand, but shall deliver available Products, among all customers
and Integrated Brands own products, in a fair and equitable manner and in
accordance with Section 11 hereof.
19. Confidential Information. Except such disclosure as is required by law
or court order or stock exchange, each party shall use its best efforts, which
shall be the same efforts which that party used to protect its own confidential
information, to keep strictly confidential and to prevent the unauthorized use
of all information received from the other party which is that party's
confidential information and which is clearly identified in writing by that
party as confidential prior to its disclosure to the party receiving it;
provided, however, that Integrated Brands may use and disclose to others that
information which may be furnished by Dreyer's to it specifically for use in
connection with the marketing and distribution of the Products to the extent
that such disclosure is approved in writing by Dreyer's. Integrated Brands shall
disclose Dreyer's confidential information only to those Persons who require
such information for the purpose of performing the Collateral Agreements and
shall use such information solely for the purpose of performing its obligations
under the Collateral Agreements. Neither party shall be bound by any
confidentiality restrictions with respect to any information to the extent that
such information:
(a) came into the lawful possession of the receiving party through
sources other than the other party and those sources were under no direct or
indirect confidentiality obligation to that other party with respect to such
information; or
(b) became publicly available through no act or failure to act on the
part of the receiving party.
20. Independent Contractor. Both parties agree that Integrated Brands is an
independent contractor and, as such, neither Integrated Brands nor its personnel
will be considered agents, joint venturers, partners, franchisees, franchisors,
or employee(s) of Dreyer's nor will they be entitled to any benefits or
privileges provided by Dreyer's to its employees. As a consequence, Dreyer's is
neither liable nor responsible for withholding or deducting any sums for federal
or state income taxes, social security, health, workers compensation and
disability insurance coverage, pension or retirement plan, or other employment
benefits.
21. Compliance with Applicable Law. Integrated Brands and Dreyer's agree to
comply with all applicable federal, state and local laws, rules and regulations
in connection with the performance of this Agreement, including, but not limited
to, equal employment opportunity laws, Food and Drug Administration and the
Occupational Safety and Health Administration.
22. Notices. All notices or other communications required or permitted to
be given hereunder shall be in writing and shall be delivered by hand or sent by
postage prepaid, registered, certified or express mail or by reputable overnight
courier service and shall be deemed given when delivered by hand, three (3) days
after mailing (one (1) Business Day (as defined in the Asset Sale Agreement) in
the case of guaranteed overnight express mail or
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guaranteed overnight courier service), as follows (or at such other address for
a party as shall be specified by like notice):
(i) If to Dreyer's:
Dreyer's Grand Ice Cream, Inc.
5929 College Avenue
Oakland, California 94618
Attn: General Counsel
(ii) If to Nestle Holdings, Inc.:
Nestle Holdings, Inc.
c/o Nestle USA, Inc.
800 North Brand Boulevard
Glendale, California 91203
Attn: General Counsel
With a copy to:
Howrey, Simon, Arnold & White LLP
1299 Pennsylvania Avenue, N.W.
Washington, DC 20004
Attn: Roxann E. Henry, Esq.
(iii) If to Integrated Brands:
Integrated Brands, Inc.
4175 Veterans Highway
Ronkonkoma, New York 11779
Attn: David J. Stein, Co-Chief Executive Officer
With a copy to:
Goodwin Procter LLP
599 Lexington Avenue
New York, New York 10022
Attn: Daniel Kaplan, Esq.
In the event that Integrated Brands gives notice regarding any breach or
violation of this Agreement by Dreyer's, Integrated Brands shall also
concurrently provide a copy of such notice to Nestle Holdings, Inc.
23. Governing Law; Waiver of Jury Trial. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York applicable
to agreements made and to be performed entirely within such state, without
regard to the choice-of-law principles of such state. Each party hereby waives
to the fullest extent permitted by applicable law, any right it
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may have to a trial by jury in respect to any litigation directly or indirectly
arising out of, under, or in connection with this Agreement or the transactions
contemplated hereby or disputes relating hereto.
24. Actions and Proceedings. Integrated Brands and its Affiliates and
Dreyer's hereby irrevocably consent to the exclusive jurisdiction and venue of
the courts of the State of New York and the United States District Court for the
Southern District of New York in connection with any action or proceeding
arising out of this Agreement or any related transaction. Dreyer's irrevocably
appoints Dreyer's General Counsel as its authorized agent upon whom process may
be served in any such action or proceeding instituted in any such court and
waives any objections to personal jurisdiction with respect thereto. Integrated
Brands and its Affiliates hereby appoint Integrated Brands' Co-Chief Executive
Officer as their authorized agent upon whom process may be served in any such
action or proceeding instituted in any such court and waive any objections to
personal jurisdiction with respect thereto.
25. Attorneys' Fees and Costs. The prevailing party in any legal action
relating to this Agreement will be entitled to recover its attorneys' fees and
litigation costs and expenses incurred in connection with such action or
arbitration as part of the same proceeding.
26. Severability. The illegality, invalidity or unenforceability of any
part of this Agreement shall not affect the legality, validity or enforceability
of the remainder of this Agreement. If any part of this Agreement shall be found
to be illegal, invalid or unenforceable, this Agreement shall be given such
meaning as would make this Agreement legal, valid and enforceable in order to
give effect to the intent of the parties.
27. Entire Agreement; Amendments. This Agreement (including all exhibits
attached hereto), the Asset Sale Agreement and the other Collateral Agreements
constitutes the complete agreement between the parties with respect to its
subject matter and supersedes all prior or contemporaneous agreements (even if
written notice of termination was required to be given by a party), discussions,
representation and proposals, written or oral, with respect to the subject
matter discussed herein. No modification of this Agreement will be effective
unless contained in writing and signed by an authorized representative of each
party.
28. Assignment. Neither party shall be permitted to assign this Agreement
(including through operation of law or through a change of control) or delegate
its obligations to any Person under this Agreement without the other party's
prior written consent.
29. Waiver. The failure of a party to prosecute its rights with respect to
a breach hereunder will not constitute a waiver of the right to enforce its
rights with respect to the same or any other breach.
30. Duplicate Originals; Faxed Signatures. This Agreement may be executed
in any number of counterparts, each of which will be an original and all of
which will constitute together one and the same document.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
INTEGRATED BRANDS, INC.
By: /s/ David J. Stein
------------------------------------
David J. Stein
Co-Chief Executive Officer
DREYER'S GRAND ICE CREAM, INC.
By: /s/ T. Gary Rogers
------------------------------------
T. Gary Rogers
Chairman of the Board of Directors
and Chief Executive Officer
[Signature Page to Non-Grocery Distribution Agreement]
Exhibit A
Products
ORIGINAL TEXT REDACTED
Exhibit A to Non-Grocery Distribution Agreement
Exhibit B
Maximum Annual Volumes
[ORIGINAL TEXT REDACTED]
ORIGINAL TEXT REDACTED
Exhibit B to the Non-Grocery Distribution Agreement
Exhibit C
Counties
ORIGINAL TEXT REDACTED
Exhibit C to the Non-Grocery Distribution Agreement
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