TRANSITION SERVICES AGREEMENT
This TRANSITION SERVICES AGREEMENT dated as of March 27, 2005 (the
"Effective Date"), is made by and between KRAFT FOODS GLOBAL, INC., a Delaware
corporation ("Seller"), and COOLBRANDS DAIRY, INC., a Delaware corporation
("Purchaser").
RECITALS
WHEREAS, pursuant to that certain Asset Purchase Agreement dated as of
December 22, 2004 (the "Asset Purchase Agreement") between Seller and Integrated
Brands, Inc., a New Jersey corporation ("Integrated"), Seller has agreed to sell
to Integrated the Acquired Assets, and Integrated has agreed to purchase the
Acquired Assets and to assume the Assumed Liabilities;
WHEREAS, Purchaser is a wholly owned subsidiary of Integrated;
WHEREAS, Integrated assigned and transferred all of its right, title
and interest in, to and under the Asset Purchase Agreement to Purchaser, and
Purchaser assumed such assignment, pursuant to that certain assignment and
assumption agreement, dated March 25, 2005, by and between Integrated and
Purchaser;
WHEREAS, in connection with the transactions contemplated by the Asset
Purchase Agreement, Purchaser and Seller desire that Seller provide Purchaser
with certain transition services as set forth in this Agreement; and
WHEREAS, capitalized terms used herein and not otherwise defined in
this Agreement have the meanings given to such terms in the Asset Purchase
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements contained in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties agree as follows:
1. Transition Services.
(a) During the term of this Agreement as set forth in Section 10 below
(the "Transition Period") and on the terms and subject to the conditions of this
Agreement, Seller will provide, or cause one or more of its Affiliates or
third-party service providers to provide, to Purchaser (with respect to the
Business) each of the services (the "Services") described on Annex A hereto from
the Effective Date and for the specific period of time described in Annex A with
respect to each of the Services, in the manner and at a level of quality, care
and service consistent in all material respects with that provided by Seller or
one or more of its Affiliates or third-party service providers to the Business
prior to the Effective Date. Purchaser will purchase and pay for such Services
as provided for herein. The quantity of each Service to be provided will be that
which Purchaser may reasonably require for the operation of the Business in the
Ordinary Course of Business consistent in all material respects with the
operation of the Business prior to the Closing and such additional quantity of
Services as may be reasonably necessary to accommodate growth in the Business
during the respective time periods; provided, that Seller will not be required
to provide a quantity of the Services (individually or in the aggregate) set
forth under the heading "Distribution" in excess of 150% of the quantity of such
Services (individually or in the aggregate) required for the conduct of the
Business in the Ordinary Course of Business prior to the Closing.
A-1
(b) The monthly fees payable by Purchaser to Seller for each of the
Services are set forth in Annex A; provided, that if, after the Effective Date,
Seller upgrades or otherwise changes any Services provided to its Affiliates,
Seller will offer such upgraded or changed Service to Purchaser for a fee at a
rate equal to the fee rate Seller charges its Affiliates for such upgraded or
changed Service (excluding any allocation of corporate overhead in excess of the
actual corporate cross-charges attributable to the Services provided under this
Agreement), and Annex A will be amended to reflect such fees. Seller will
consider, in good faith, any reasonable request from Purchaser for additional
Services to be provided to Purchaser for a fee equal to Seller's costs for such
Services.
(c) The fees set forth on Annex A are based upon Vendor Cost. For
purposes of this Agreement, "Vendor Cost" means the sum of (i) the fully-loaded
cost of Seller and its Affiliates in providing the services hereunder, including
the total cost of the individual(s) or department(s) of Seller or any of its
Affiliates providing the relevant Services, pro-rated on an equitable basis for
time spent on providing such Services, and the costs of modifying its systems to
permit the provision of Services hereunder and (ii) any other direct
out-of-pocket costs incurred by Seller and any of its Affiliates in providing or
procuring the Services. As used in the previous sentence, "fully-loaded cost"
will not include any profit for Seller and its Affiliates in providing the
Services hereunder and will not include any allocation of corporate overhead in
excess of the actual corporate cross-charges attributable to the Services
provided under this Agreement). Purchaser will also pay any incremental amounts
that are required to be paid to any licensors of software or any third-party
service providers as a result of the use of such software or third party
providers in connection with the provision of any Services to Purchaser
hereunder. If (x) Seller uses any software listed on Annex B in connection with
its provision of a Service (or Services), and (y) the licensor of such software
notifies Seller that its consent (or another license) is required to permit
Seller to use such software to provide such Service (or Services), then Seller
will notify Purchaser of such requirement, and Purchaser will be responsible for
paying all amounts relating to such consent (or license). Purchaser acknowledges
that some Services to be provided hereunder require instructions and information
from Purchaser, which Purchaser will provide to Seller in sufficient time for
Seller or its Affiliates to provide or procure such Services. Purchaser will pay
any reasonable additional costs or expenses to the extent resulting from any
delay by Purchaser in providing such instructions or information.
(d) At the end of the Transition Period, Purchaser either shall
assume, if permissible, the leases or licenses related to the personal computers
and personal computer software that are located at the Real Property or bear any
costs or other fees incurred as a result of the early termination of such leases
or licenses. Seller agrees to cooperate reasonably with Purchaser with any
permitted assumption of such leases or licenses.
2. Certain Raw Material Contracts. Seller will permit Purchaser to
purchase material ingredients and packaging materials (other than milk) pursuant
to Seller's master supply agreements in effect at the time of such order and
pursuant to the terms and for the periods set forth under the heading "Supply
Contracts - Other than Milk" in Annex A. Notwithstanding the foregoing, Seller
will have no obligation under this Section 2 with respect to any such order that
does not reasonably satisfy the minimum quantities or other requirements of
Annex A or the applicable master supply contract. Payments with respect to each
order will be made in accordance with Annex A.
3. Limitation on Services. Seller will have no obligation to upgrade,
enhance or otherwise modify any computer hardware, software or network
environment currently used or located at the Real Property or to provide any
support or maintenance services for any computer hardware, software or network
environment that has been upgraded, enhanced or otherwise modified from the
computer hardware, software or network environments that is currently used or
located at the Real Property without
-2-
Seller's prior written consent. Seller will use reasonable commercial efforts to
accommodate any requests from Purchaser to support any modifications necessary
for such computer hardware, software or network environment currently used by
Purchaser in its existing business operations.
4. Subcontractors. Seller will have the right, directly or through one
or more Affiliates, to hire or engage one or more subcontractors or other third
parties (each, a "Subcontractor"), to perform all or any of its obligations
under this Agreement; provided, that (a) Seller will remain ultimately
responsible for ensuring that the obligations with respect to the nature,
quality and standards of care set forth in Section 1 are satisfied with respect
to any Services provided by any Subcontractor, (b) the use of any Subcontractor
will not increase any fees payable by Purchaser hereunder and (c) the use of any
Subcontractor will not adversely affect the quality of any Services provided to
Purchaser.
5. Title to Equipment; Management and Control.
(a) All procedures, methods, systems, strategies, tools, equipment,
facilities and other resources used by Seller and any of its Affiliates in
connection with the provision of Services hereunder (collectively, the
"Equipment") will remain the property of Seller and its Affiliates and, except
as otherwise provided herein, will at all times be under the sole direction and
control of Seller and its Affiliates.
(b) Except as otherwise provided herein, management of, and control
over, the provision of the Services (including the determination or designation
at any time of the Equipment, employees and other resources of Seller and its
Affiliates to be used in connection with the provision of the Services) will
reside solely with Seller. Without limiting the generality of the foregoing, all
labor matters relating to any employees of Seller and its Affiliates will be
within the exclusive control of Seller and its Affiliates, and Purchaser will
take no action affecting such matters. Seller will be solely responsible for the
payment of all salary and benefits and all income tax, social security taxes,
unemployment compensation, tax, workers' compensation tax, other employment
taxes or withholdings and premiums and remittances with respect to employees of
Seller and its Affiliates used to provide Services.
6. Billing and Payment.
(a) Purchaser will promptly pay any bills and invoices that it
receives from Seller or its Affiliates for Services provided under this
Agreement, subject to receiving, if requested, any appropriate support
documentation for such bills and invoices. Such charges may at Seller's option
be billed as incurred if the amount involved equals or exceeds [ORIGINAL TEXT
REDACTED], or, if such charges do not exceed [ORIGINAL TEXT REDACTED], at the
end of each calendar month during the Transition Period. Unless otherwise
provided herein or in Annex A, all invoices will be paid by wire transfer in
accordance with the instructions provided by Seller (in writing to Purchaser)
not later than [ORIGINAL TEXT REDACTED] following receipt by Purchaser of
Seller's invoice. Purchaser will not offset any amounts owing to it by Seller or
any of Seller's Affiliates against amounts payable by Purchaser hereunder or
under the Asset Purchase Agreement (except for any invoiced amounts disputed by
Purchaser in good faith). Should Purchaser dispute any portion of any invoice,
Purchaser will promptly notify Seller in writing of the nature and basis of the
dispute.
(b) In connection with the performance of certain Services ("Account
Services"), Seller and its Affiliates will be making cash payments and
collecting cash receipts and receivables on behalf of and for the benefit of
Purchaser. During the Transition Period, Seller will, within five Business Days
after the end of each accounting month of Seller, commencing with the end of the
first full accounting month after the Effective Date, deliver to Purchaser a
statement setting forth the cash
-3-
payments and collections made in connection with the Account Services during the
preceding month. If the net amount of cash payments and collections resulted in
Seller collecting more cash than it paid during such month (only with respect to
Account Services), Seller will pay to Purchaser the amount of such excess within
five Business Days after the cash statement for that month has been delivered to
Purchaser. Seller will have no obligation to pay more than it collects with
respect to such Account Services. Notwithstanding Section 7, Seller and its
Affiliates will pay no interest on any of such cash payments.
7. Interest Payable on Amounts Past Due. All payments required to be
made pursuant to this Agreement will bear interest from and including the date
[ORIGINAL TEXT REDACTED] after such payment is due to but excluding the date of
payment at the Prime Rate in effect from time to time during the period from the
date such interest begins to accrue to the date of payment. Such interest will
be payable at the same time as the payment to which it relates and will be
calculated on the basis of a year of 365 days and the actual number of days
elapsed, compounded quarterly.
8. General Intent. Seller will use commercially reasonable efforts to
provide the Services and such other transition assistance as the parties may
otherwise agree (at a cost to be mutually agreed) during the Transition Period.
Purchaser will use commercially reasonable efforts to end its need to use such
assistance as soon as reasonably possible and (unless the parties otherwise
agree) in all events to end such need with respect to each Service not later
than the relevant time period as may be specified in Annex A for the provision
of each such Service.
9. Validity of Documents. The parties will be entitled to rely upon
the genuineness, validity or truthfulness of any document, instrument or other
writing presented in connection with this Agreement unless such document,
instrument or other writing appears on its face to be fraudulent, false or
forged.
10. Term of Agreement; Termination.
(a) The term of this Agreement will commence on the Effective Date and
will continue (unless sooner terminated pursuant to the terms hereof) until the
expiration of the longest time period as may be provided in Annex A with respect
to particular Services.
(b) Purchaser may terminate this Agreement at any time, upon written
notice to Seller, in the event of a material breach of this Agreement by Seller.
Such termination will become effective [ORIGINAL TEXT REDACTED] from the date of
receipt of such notice unless the breach is cured or if not able to be cured
within said [ORIGINAL TEXT REDACTED] period, significant steps to cure have been
taken by Seller within that period.
(c) Seller may terminate this Agreement at any time, upon written
notice to Purchaser, in the event of a material breach of this Agreement by
Purchaser. Such termination will become effective [ORIGINAL TEXT REDACTED] from
the date of receipt of such notice unless the breach is cured or if not able to
be cured within said [ORIGINAL TEXT REDACTED] period, significant steps to cure
have been taken by Purchaser within that period; provided, that if such breach
relates to the non-payment by Purchaser of any fees or expenses under Section
6(a), then termination under this Section 10(c) will be effective [ORIGINAL TEXT
REDACTED] from the date of receipt of such notice unless all unpaid fees or
expenses have been paid in full within such [ORIGINAL TEXT REDACTED] period.
(d) Notwithstanding any other provision in this Agreement stating or
implying the contrary, whether this Agreement is terminated by Seller or
Purchaser, Purchaser will remain liable for
-4-
the payment of fees and expenses accruing for the period prior to termination
even though such fees may not become due until after termination. Further, in
the event of termination of this Agreement pursuant to this Section 10 and
Sections 4, 12, 13, 15, 16, 18-27 will continue in full force and effect.
11. Partial Termination. Purchaser may terminate any and all of the
Services, effective as of the last day of an accounting month of Seller, at any
time prior to the expiration of the period specified in Annex A upon at least
[ORIGINAL TEXT REDACTED] prior written notice to Seller. As soon as reasonably
practicable following receipt of any such notice, Seller will advise Purchaser
as to whether termination of such Services will require the termination or
partial termination of, or otherwise affect the provision of, any other
Services. If such is the case, Purchaser may withdraw its termination notice.
Otherwise, such termination will be final.
12. Taxes. All charges and fees to be paid to Seller under this
Agreement are exclusive of any applicable taxes required by law to be collected
from Purchaser (including withholding, sales, use, excise or services tax, which
may be assessed on the provision of the Services hereunder). If a withholding,
sales, use, excise or services tax is assessed on the provision of any of the
Services under this Agreement, Purchaser will pay directly, reimburse or
indemnify Seller for such tax. The parties will cooperate with each other in
determining the extent to which any tax is due and owing under the
circumstances, and will provide and make available to each other any resale
certificate, information regarding out-of-state use of materials, services or
sale, and other exemption certificates or information reasonably requested by
either party.
13. Confidentiality. Each party will cause each of its Affiliates and
each of its and their officers, directors and employees to hold all information
relating to the business of the other party disclosed to it by reason of this
Agreement (the "Confidential Information") confidential for a period of
[ORIGINAL TEXT REDACTED] from the termination or expiration of this Agreement,
and will not use or disclose any such Confidential Information to any third
party unless legally compelled to disclose such information; provided, however,
that to the extent that a person receiving Confidential Information hereunder
may become legally compelled to disclose any Confidential Information, such
person (a) may only disclose such information if it will first have used
commercially reasonable efforts to, and, if practicable, will have afforded the
other party the opportunity to obtain an appropriate protective order or other
satisfactory assurance of confidential treatment for the information required to
be so disclosed, and (b) if such protective order or other remedy is not
obtained, or the other party waives such person's compliance with the provisions
of this Section 13, they will only furnish that portion of the Confidential
Information which is legally required to be so disclosed. As used herein,
"Confidential Information" does not include any information (x) which is or
becomes generally available to the public other than as a result of a disclosure
by the party receiving the Confidential Information in violation of this
Agreement, (y) that was available to the receiving party on a non-confidential
basis prior to its disclosure by the disclosing party or (z) becomes available
to the receiving party from a person other than the disclosing party or its
Affiliates who is not, to the best of the receiving party's knowledge, subject
to any legally binding obligation to keep such information confidential.
14. Third-Party Non-Disclosure Agreements. To the extent that any
third-party proprietor of information or software to be disclosed or made
available to Purchaser in connection with performance of the Services hereunder
requires a specific form of non-disclosure agreement as a condition of its
consent to use of the same for the benefit of Purchaser or to permit Purchaser
access to such information or software, Purchaser will, as a condition to such
disclosure, execute (and will cause Purchaser's employees to execute, if
required) any such form.
15. Limitation of Liability, Indemnity. (a) Neither party nor any of
its respective Affiliates will be liable to the other party or any third party
for any special, punitive, consequential,
-5-
incidental or exemplary damages (including lost or anticipated revenues or
profits relating to the same and attorneys' fees) arising from any claim
relating to this Agreement or any of the Services to be provided hereunder or
the performance of or failure to perform such party's obligations under this
Agreement, whether such claim is based on warranty, contract, tort (including
negligence or strict liability) or otherwise, and regardless of whether such
damages are foreseeable or an authorized representative of such party is advised
of the possibility or likelihood of such damages. In addition, neither party nor
any of its respective Affiliates will be liable to the other party or any third
party for any direct damages arising from any claim relating to this Agreement
or any of the Services to be provided hereunder or the performance of or failure
to perform such party's obligations under this Agreement, except to the extent
that such direct damages are caused by the gross negligence or willful
misconduct of such party or its respective Affiliates. Seller specifically
disclaims all warranties of any kind, express or implied, arising out of or
related to this Agreement except as expressly set forth in Section 1(a) hereof.
(b) Purchaser will indemnify Seller and each of its Affiliates against
all Damages attributable to any third-party claims arising from or relating to
the provision of Services under this Agreement to the extent that such Damages
arise from the gross negligence or willful misconduct of Purchaser, any of its
Affiliates or any of its or their respective employees, officers or directors.
(c) Seller will indemnify Purchaser and each of its Affiliates against
all Damages attributable to any third-party claims arising from or relating to
the provision of Services under this Agreement to the extent that such Damages
arise from the gross negligence or willful misconduct of Seller, any of its
Affiliates or any of its or their respective employees, officers or directors.
(d) All claims for indemnification pursuant to this Section 15 will be
made in accordance with the procedures set forth in Section 9.4 of the Asset
Purchase Agreement.
16. Relationship of Parties. Except as specifically provided herein
(a) neither party will act or represent or hold itself out as having authority
to act as an agent or partner of the other party, or (b) in any way bind or
commit the other party to any obligations or agreement. Nothing contained in
this Agreement will be construed as creating a partnership, joint venture,
agency, trust, fiduciary relationship or other association of any kind, each
party being individually responsible only for its obligations as set forth in
this Agreement. The parties' respective rights and obligations hereunder will be
limited to the contractual rights and obligations expressly set forth herein on
the terms and conditions set forth herein.
17. Force Majeure. If Seller is prevented from or delayed in
complying, either totally or in part, with any of the terms or provisions of
this Agreement by reason of fire, flood, storm, strike, lockout or other labor
trouble or shortage, delays by unaffiliated suppliers or carriers, shortages of
fuel or power, shortages of supply of raw materials or components supplied by
unaffiliated third party suppliers that are beyond the reasonable control of
Seller, any law, order, proclamation, regulation, ordinance, demand, seizure or
requirement of any governmental authority, riot, civil commotion, war,
rebellion, acts of terrorism, nuclear accident or other similar causes beyond
the reasonable control of Seller or other acts of God, or acts, omissions, or
delays in acting by any governmental or military authority or Purchaser, then
upon written notice to Purchaser, the affected provisions and/or other
requirements of this Agreement will be suspended during the period of such
disability and Seller will have no liability to Purchaser or any other party in
connection therewith; provided, however, that in the event of any shortages of
raw materials or components, Seller will allocate available supply in good faith
among its own requirements, Purchaser's requirements and the requirements of any
third party to whom it has an existing contractual obligation so as not to favor
any one party over another. Seller and Purchaser will make commercially
reasonable efforts to remove such disability within [ORIGINAL TEXT REDACTED] of
giving notice of such disability.
-6-
18. Notices. Any notice or other communications required or permitted
under this Agreement will be sufficiently given if delivered in person,
transmitted via facsimile (but only if followed by transmittal by recognized
overnight courier or hand delivery), or sent by registered or certified mail,
postage prepaid, or recognized overnight courier service addressed as follows:
If to Purchaser: Coolbrands Dairy, Inc.
4175 Veteran's Memorial Highway
3rd Floor
Ronkonkoma, New York 11779
Attn: David J. Stein
Fax: (631) 737-9792
with a copy to: Goodwin Procter LLP
599 Lexington Avenue
New York, NY 10022
Attn: Lori S. Smith
Fax: (212) 355-3333
(a) If to Seller: Kraft Foods Global, Inc.
3 Lakes Drive
Northfield, IL 60093-2753
Attn: General Counsel
Fax: (847) 646-2950
with a copy to: Schiff Hardin LLP
6600 Sears Tower
Chicago, Illinois 60606
Attn: Paul A. Rahe
Fax: (312) 258-5600
or such other addresses or numbers and/or addressee as are furnished
in writing by either party, and such notice or communication will be deemed to
have been given (a) as of the date so personally delivered or transmitted via
facsimile, (b) on the third Business Day after the mailing thereof or (c) on the
first Business Day after delivery by recognized overnight courier service.
19. Governing Law; Consent to Jurisdiction.
(a) The construction of this Agreement, and all matters relating
hereto, will be governed by the laws of the State of Illinois applicable to
contracts made and to be performed entirely within the State of Illinois without
giving effect to any conflict of law provisions.
(b) Any legal action or proceeding with respect to this Agreement may
be brought in the federal and state courts located in Cook County, Illinois,
and, by execution and delivery of this Agreement, each party irrevocably submits
itself in respect of its property, generally and unconditionally, to the
exclusive jurisdiction of those courts in any such legal action or proceeding.
Each of the parties irrevocably waives any objection which it may now or
hereafter have to venue and jurisdiction in such courts. Each party consents to
process being served in any such action or proceeding by the mailing of a copy
thereof to the address set forth in Section 19 below its name and agrees that
such service upon receipt will constitute good and sufficient service of process
or notice thereof. Nothing in this paragraph will affect or eliminate any right
to serve process in any other manner permitted by law.
-7-
20. Waiver of Jury Trial. THE PARTIES IRREVOCABLY WAIVE THEIR
RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM
OR CROSS-COMPLAINT IN ANY ACTION OR OTHER PROCEEDING BROUGHT BY EITHER PARTY
AGAINST THE OTHER PARTY OR PARTIES WITH RESPECT TO ANY MATTER ARISING OUT OF, OR
IN ANY WAY CONNECTED WITH OR RELATED TO, THIS AGREEMENT OR ANY PORTION THEREOF,
WHETHER BASED UPON CONTRACTUAL, STATUTORY, TORTIOUS OR OTHER THEORIES OF
LIABILITY. EACH PARTY REPRESENTS THAT IT HAS CONSULTED WITH COUNSEL REGARDING
THE MEANING AND EFFECT OF THE FOREGOING WAIVER OF ITS RIGHT TO A JURY TRIAL.
21. Entire Agreement; Amendment. This Agreement, including Annex A,
and the Asset Purchase Agreement contain the entire understanding of the parties
with respect to the subject matter contained herein and therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter. This Agreement may not be amended except by a
written instrument executed by the parties.
22. Parties in Interest. This Agreement may not be transferred,
assigned, pledged or hypothecated by either party (whether by operation of law
or otherwise) without the prior written consent of the other party. This
Agreement will be binding upon and will inure to the benefit of the parties and
their respective successors and permitted assigns.
23. Interpretation. The table of contents and headings contained in
this Agreement are for reference purposes only and will not affect in any way
the meaning or interpretation of this Agreement. Whenever the words "include,"
"includes," "including" or similar expressions are used in this Agreement, they
will be understood be followed by the words "without limitation". The parties
have participated jointly in the negotiation and drafting of this Agreement. In
the event of an ambiguity or question of intent or interpretation arises, this
Agreement will be construed as if drafted jointly by the parties and no
presumption or burden of proof will arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
24. Third Party Beneficiaries. Each party intends that this Agreement
will not benefit or create any right or cause of action in or on behalf of any
Person other than the parties to this Agreement; provided, however, that
notwithstanding this Section 24, the provisions of Sections 15(b) and 15(c) will
inure to the benefit of the Persons identified therein, and may be enforced by
such Persons and their respective heirs and personal representatives.
25. Annex A. Annex A is incorporated in, and made a part of, this
Agreement.
26. Waiver. Except as otherwise provided in this Agreement, any
failure of either of the parties to comply with any obligation, covenant,
agreement or condition herein may be waived by the party entitled to the
benefits thereof only by a written instrument signed by the party granting such
waiver, but such waiver or failure to insist upon strict compliance with such
obligation, covenant, agreement or condition will not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure.
27. Severability. If any provision of this Agreement or the
application of any such provision to any Person or circumstance is held invalid,
illegal or unenforceable in any respect by a court of competent jurisdiction,
such invalidity, illegality or unenforceability will not affect any other
provision or the application of such provision to any other Persons or
circumstances.
-8-
28. Counterparts; Delivery by Facsimile. This Agreement may be
executed in two or more counterparts, all of which taken together will
constitute one instrument, and will become effective when one or more such
counterparts have been signed by each of the parties and delivered to the other
party. Executed signature pages delivered by facsimile will be treated in all
respects as original signatures.
* * *
-9-
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be duly executed, all as of the date first above written.
KRAFT FOODS GLOBAL, INC.
By: "William Eicher"
------------------------------------
Name: William Eicher
Title: Vice-President, Mergers and
Acquisitions
COOLBRANDS DAIRY, INC.
By: "David Stein"
------------------------------------
Name: David Stein
Title: President
-10-
Annex A
to Transition Services Agreement
[ORIGINAL TEXT REDACTED]
B-1
Annex B
to Transition Services Agreement
[ORIGINAL TEXT REDACTED]
-2-