EXHIBIT 10.20
* Certain information in this document has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions. The omitted portions are
indicated by [****].
EXECUTION COPY
Co-PACK AGREEMENT
BETWEEN
XXXXXX'X GRAND ICE CREAM, INC.
AND
INTEGRATED BRANDS, INC.
DATED AS OF JULY 5, 2003
THIS CO-PACK AGREEMENT (this "Agreement") dated as of July 5, 2003 is
made by and between Integrated Brands, Inc., a New Jersey corporation
("Integrated Brands"), and Xxxxxx'x Grand Ice Cream, Inc. ("Dreyer's").
WHEREAS, Dreyer's, New December, Inc., a Delaware corporation, Nestle
Ice Cream Company, LLC, a Delaware limited liability company ("NICC"), 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, Integrated Brands
desires that Dreyer's produce and sell to Integrated Brands, and Dreyer's is
willing to produce and sell to Integrated Brands, certain Products (as defined
below) during the period set forth herein following the closing of the
transactions contemplated by the Asset Sale Agreement; and
WHEREAS, as an essential part of the transactions contemplated by the
Asset Sale Agreement, Dreyer's has agreed to produce and sell to Integrated
Brands such Products, on the terms and subject to the conditions hereof.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and agreements contained in this Agreement, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. DEFINITIONS.
a. Month. The term "Month" shall mean each fiscal month of
Dreyer's (4 or 5 weeks). Dreyer's shall provide to Integrated Brands
a schedule of its Months for the term of this Agreement.
b. Products. The term "Products" shall have the meaning set forth
in the Asset Sale Agreement.
c. Specifications. The term "Specifications" shall mean the
formulas, ingredient and packaging specifications and the direction sheets for
the manufacture of the Products provided to Dreyer's by Integrated Brands as
Integrated Brands may amend the same from time to time in its sole discretion.
d. Trademarks. The term "Trademarks" shall mean the trademarks,
trade names and logos used in connection with the Products, together with any
and all designs, trade dress, copyrights, goodwill or other intellectual
property associated therewith.
2. GRANT OF MANUFACTURING RIGHT.
a. Requirements. Upon the terms and conditions set forth in this
Agreement, Integrated Brands grants to Dreyer's, and Dreyer's hereby accepts,
the non-exclusive right and obli-
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gation to manufacture Integrated Brands' requirements for the Products, as such
requirements shall be evidenced by Integrated Brands' orders for the Products
submitted to Dreyer's.
b. Quantity. Integrated Brands shall have the option to procure
some or all of its requirements for the Products from Dreyer's in Integrated
Brands' discretion.
c. Reservation. No right other than that expressly contained
herein is hereby granted to Dreyer's. Integrated Brands expressly reserves to
itself the right to manufacture the Products and any other products itself and
to enter into agreements to manufacture the Products and any other products with
other third-party manufacturers in its absolute discretion.
d. Limitation. Dreyer's shall manufacture the Products solely for
the account of Integrated Brands. Dreyer's is expressly prohibited from
manufacturing any Products for its own account or for the account of any third
party.
e. Plant Location. Dreyer's shall manufacture the Products at
Dreyer's plants located at Union City, California, City of Commerce, California,
Tulane, California, Bakersfield, California, Fort Xxxxx, Indiana and Houston,
Texas (the "Plants").
f. Specifications. Dreyer's shall manufacture the Products solely
in accordance with the Specifications and this Agreement. Dreyer's shall in no
event use the Specifications for any purpose other than to manufacture the
Products for Integrated Brands in accordance with this Agreement.
g. Packaging. Dreyer's shall package the Products solely using
the appropriate packaging materials as directed by Integrated Brands expressly
for use in connection with the Products; [****]. Dreyer's shall in no event
package any products except the Products using any packaging materials provided
by Integrated Brands for use in connection with the Products.
h. Title; Risk of Loss. Title to Product shall pass to Integrated
Brands upon completion of the manufacturing process. Dreyer's assumes all risk
of loss for the Products until such Products are delivered to a Customer or
Integrated Brands.
3. PRICING.
a. Formula Pricing. Subject to this Agreement, Dreyer's shall
produce finished goods Products and sell the same to Integrated Brands, and
Integrated Brands shall purchase said finished goods Products from Dreyer's, for
the Total Price (as defined below) for each Product. The term "Total Price"
shall mean, with respect to all Products produced hereunder, an amount equal to
[****] (the "Processing Fee"). The Total Price shall be Dreyer's only charge to
Integrated Brands for any goods or services provided hereunder.
b. Processing Fee. The Processing Fee [****] (as defined below).
c. Material Cost. The term "Material Cost" shall mean the [****]
costs paid by Dreyer's for the ingredients and packaging, [****]. The Material
Cost will be calculated [****]. At the end of [****], Dreyer's shall provide to
Integrated Brands a list of Material Cost for each
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Product for the previous Month and this Material Cost will be used to calculate
the total cost of Product for the following Month; [****].
4. SPECIAL COMPONENTS.
Dreyer's shall purchase all of its requirements for ingredients and
packaging identified in the Specifications as unique ingredients ("Special
Components") for use in connection with the Products exclusively from Integrated
Brands or Integrated Brands' designated source (a "Designated Source");
provided, however, that to the extent that Dreyer's has a purchase order
commitment for a Special Component that existed as of the Closing Date (as
defined in the Asset Sale Agreement) and which relates to the Specifications for
a Product as of the Closing Date, then Dreyer's will be entitled to continue to
purchase such Special Component under such purchase order commitment. Dreyer's
shall in no event substitute any other ingredient or packaging material for any
Special Component in the manufacture of the Products, without the prior written
approval of Integrated Brands.
5. FORECASTS, INVENTORY AND SHIPMENT.
a. Forecasts. Integrated Brands shall provide Dreyer's with
[****] forecasts detailing its anticipated requirements for the Products by SKU
(as defined in the Asset Sale Agreement), and shall update such forecasts on an
ongoing basis to reflect Integrated Brands' then anticipated requirements.
Dreyer's shall order Special Components and schedule production of finished
goods Products on the basis of such forecasts and updated forecasts, taking into
account reasonable and customary minimum run considerations.
b. Inventory. Dreyer's shall build, maintain, handle and store
inventories of ingredients, packaging and finished goods Products at levels
adequate to meet Integrated Brands' updated, forecasted requirements for the
Products.
c. Shipment. Dreyer's shall arrange and schedule transportation
for all shipments of finished goods Products per the terms of the applicable
distribution agreement between the parties.
6. PAYMENT TERMS.
x. Xxxxxx'x. Dreyer's shall make payment to Integrated Brands for
all ingredients and packaging purchased from Integrated Brands hereunder within
[****] following the date of invoice. Invoices shall be dated as of the date of
shipment to Dreyer's and shall be rendered within [****] following such
shipment.
b. Integrated Brands. Integrated Brands shall make payment to
Dreyer's for all finished goods Products purchased from Dreyer's hereunder
within [****] following the date of invoice. Invoices shall be dated as of the
date of shipment to Integrated Brands or a third party designated by Integrated
Brands and shall be rendered within [****] following such shipment.
c. Disputes. If either Integrated Brands or Dreyer's objects in
writing to amounts payable to the other party under Sections 6.a, 6.b, and 6.c
above and if the parties are unable to resolve their dispute within ten (10)
days following Dreyer's receipt of Integrated Brands' writ-
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ten objection or Integrated Brands' receipt of Dreyer's written objection, the
parties shall refer their remaining differences to a nationally-recognized
public accounting firm (the "CPA Firm") for decision, which decision shall be
made consistent with this Agreement within thirty (30) days and shall be final
and binding on the parties; provided that the CPA Firm's determination as to any
item set forth in Integrated Brands' objection shall not be more beneficial to
Dreyer's than the determination of that item by Dreyer's in its written
objection or more beneficial to Integrated Brands than the determination of that
item in its written objection. Any expenses relating to the engagement of the
CPA Firm shall be shared equally by Integrated Brands and Dreyer's.
7. TRADEMARKS.
a. Acknowledgment. Dreyer's acknowledges that no right or license
(or sublicense) of any kind or nature, express or implied, is hereby granted in
or to the Trademarks or any intellectual property associated with the Products
(including the Specifications), and that all rights in and to the Trademarks and
the Specifications and the goodwill pertaining thereto belong exclusively to
Integrated Brands; provided, however, that Dreyer's shall have the rights to use
the "Whole Fruit" name as expressly provided in Section 7.9 of the Asset Sale
Agreement.
b. Covenant. Dreyer's agrees that it shall not, during the term
of this Agreement or thereafter, make any unauthorized use of any Trademark or
the Specifications or adopt or use as its own, a trademark the same or similar
to any Trademark or perform any material act or omission adverse to Integrated
Brands' rights in the Trademarks and the Specifications; provided, however, that
Dreyer's shall have the rights to use the "Whole Fruit" name as expressly
provided in Section 7.9 of the Asset Sale Agreement.
8. QUALITY CONTROL.
a. Quality Standards. So that the identity of the Trademarks may
be preserved and the consumer assured of the Products' uniformity, Dreyer's
agrees that all Products shall be manufactured, packaged and handled by Dreyer's
in strict conformity with the Specifications and other quality control and
product safety standards, policies and procedures reasonably established by
Integrated Brands from time to time during the Term (as defined below) of this
Agreement and consistent with Dreyer's manufacturing practices for its own
products.
b. Compliance with Regulations. Dreyer's agrees that the Products
will be manufactured in compliance with, and will not be adulterated or
misbranded within the meaning of, the Federal Food, Drug and Cosmetic Act of
1938, or any other federal, state, foreign or local laws or regulations
applicable thereto, will not constitute an article that may not be introduced
into interstate commerce and will be manufactured in substantial compliance with
all applicable federal, state, foreign or local laws and regulations applicable
thereto. Unless Integrated Brands otherwise agrees in writing, Dreyer's will
destroy all inventories that are not in conformity with Food and Drug
Administration rules and regulations or any applicable federal, state, foreign
and local laws. Dreyer's agrees to notify Integrated Brands promptly of any
regulatory action of which Dreyer's has knowledge that is taken in relation to
it by any federal, state, foreign, county or municipal authority and that
relates to or affects the manufacture, storage, distribution or sale of the
Products.
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c. Non-Conforming Products. If at any time, Integrated Brands
reasonably deems the quality of the Products to be below the quality standards
required hereunder, Integrated Brands promptly shall notify Dreyer's in writing
of such determination (a "Quality Notice"). [****].
d. Product Recall or Withdrawal. Either Party shall immediately
advise and consult with the other as to any Product recall or withdrawal
considerations; provided that Integrated Brands shall have the absolute right to
recall or withdraw any Product if it determines in its sole discretion that (A)
such Product may be contaminated, (B) the use and/or distribution of such
Product may pose an immediate threat to Integrated Brands' customers, or (C)
such Product otherwise fails to conform to the quality standards required
hereunder. Integrated Brands shall bear the cost of any recall or withdrawal
unless such recall or withdrawal results from Dreyer's manufacture, storage or
handling of the Products or procurement of raw materials used in the manufacture
of the Products pursuant to this Agreement, in which case Dreyer's shall bear
the cost of any recall or withdrawal.
e. Inspection Rights. Integrated Brands and its Licensors (as
defined below) and their duly authorized representatives shall have the right,
during normal business hours and upon reasonable prior notice, for the duration
of this Agreement, (A) to inspect all facilities utilized by Dreyer's in
connection with its manufacture, storage or handling of the Products and any raw
materials pursuant hereto and to examine the Products in process of manufacture
and all processes and operations of Dreyer's that could in any way affect the
Products or the raw materials used to manufacture the Products, and (B) to gain
reasonable access to the records of Dreyer's relating to quality control. In
addition, Integrated Brands shall have access at any time with no prior notice
required if it has any reason to believe any health or safety issues may exist.
Integrated Brands also shall have the right, but not the obligation, to maintain
a full-time independent quality control representative at the Plants, at
Integrated Brands' expense, to monitor Dreyer's compliance with the quality
control standards set forth herein.
x. Xxxxxx'x Records. Dreyer's shall maintain books and records
necessary for verifying compliance with the terms of this Agreement, including
the results of all federal, state and/or local regulatory agency inspection
reports and sanitation audits affecting Dreyer's facilities or equipment or the
Special Components, Products or other inventories located at Dreyer's
facilities. Dreyer's shall notify Integrated Brands immediately by telephone of
any such inspections or audits which indicate the presence of any
bacteriological agent or substance which is considered by health authorities as
being indicative of either unsanitary practices or of public concern. Dreyer's
shall make all such books and records available to Integrated Brands and its
designated representatives, from time to time, during normal business hours and
upon reasonable prior notice (but immediately in the event of any possible risk
to public safety). Such records shall be maintained by Dreyer's and its
Affiliates (as defined in the Asset Sale Agreement) for a period of 24 months
after termination of this Agreement; provided, however, that such books and
records need not be retained longer than four years following the end of the
year to which such books and records relate. Integrated Brands shall be entitled
to make copies, at its expense, of any such records.
g. Consumer Response. Dreyer's shall promptly forward to
Integrated Brands any and all consumer inquiries related to the Products it
receives and shall use its best efforts to co-
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operate with Integrated Brands in the handling of all consumer inquiries and
consumer response issues.
9. TERM AND TERMINATION.
a. Term. The term of this Agreement shall commence on the Closing
Date and shall end twelve (12) months thereafter, unless sooner terminated in
accordance herewith (the "Term").
b. Termination by Integrated Brands. Integrated Brands shall have
the right to terminate this Agreement at any time by giving Dreyer's not less
than sixty (60) days' written notice.
c. Termination for Breach. Except as otherwise provided in this
Agreement, Integrated Brands shall have the right to terminate this Agreement if
Dreyer's shall be in default of any obligation hereunder by giving the party in
default not less than thirty (30) days' written notice specifying such default
and stating that this Agreement will terminate at the expiration of thirty (30)
days' from receipt of such notice, unless such default is cured within said
thirty (30) day time period. Failure of Integrated Brands to terminate this
Agreement for any such default or breach shall not be determined a waiver of the
right subsequently to do so under the same or any other default or breach,
either of the same or different character.
d. Termination for Bankruptcy.
i. Either party may immediately terminate this Agreement
without any advance notice or opportunity to cure being necessary if
the other party discontinues its business or voluntarily submits to, or
is ordered by the bankruptcy court to undergo, liquidation pursuant to
Chapter 7 of the Bankruptcy Code. In the event this Agreement is so
terminated by Integrated Brands, Dreyer's, its receivers,
representatives, trustees, agents, administrators, successors and/or
assigns shall have no right to sell, exploit or in any way deal with or
in any of the Products covered by this Agreement, or any carton,
container, packaging or wrapping material pertaining thereto, except
with and under the special consent and special instruction of
Integrated Brands in writing, which they shall be obligated to follow.
ii. Should Dreyer's file a petition in bankruptcy or is
otherwise adjudicated to be bankrupt or if a petition in bankruptcy is
filed against Dreyer's and such petition is not dismissed within ninety
(90) days thereafter, or if an involuntary receiver is appointed for it
or its business and is not discharged within ninety (90) days
thereafter, Integrated Brands may immediately terminate this Agreement
without any advance notice or opportunity to cure being necessary.
e. Effect of Termination.
i. Termination of this Agreement shall not release
either party from any obligation accrued prior to the date of such
termination or from any obligations continuing beyond the termination
of this Agreement. Termination of this Agreement for any reason
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shall be without prejudice to any rights that either party may
otherwise have against the other.
ii. Upon the expiration or any termination of this
Agreement, (x) Integrated Brands agrees to buy from Dreyer's, and
Dreyer's agrees to sell to Integrated Brands, all of Dreyer's inventory
of good and saleable finished goods Products, at the Total Price for
such Products, and good and usable Special Components, at the delivered
price paid by Dreyer's for such Special Components; and (y) Dreyer's
shall be responsible for and shall destroy all inventory of Products
and Special Components failing to meet the standards set forth in (x)
hereinabove. Integrated Brands shall pick up and pay for all Products
and Special Components bought back from Dreyer's within twenty (20)
days following the expiration or termination of this Agreement.
Integrated Brands shall be entitled to access Dreyer's facilities to
the extent necessary to verify Dreyer's compliance with the provisions
of this Section 9.e.ii.
10. AUTHORIZED REPRESENTATIVES.
Wherever Dreyer's is directed to furnish or supply to or otherwise take
some action or perform some obligation in respect of Integrated Brands in this
Agreement, the term "Integrated Brands" shall be deemed to include "all
Integrated Brands' authorized representatives" unless written advice to the
contrary is received from Integrated Brands.
11. CONFIDENTIALITY.
a. Obligation. Both parties shall keep confidential and shall use
solely on a need-to-know basis and shall not cause or permit the disclosure of
any third party any confidential information disclosed by either party pursuant
to this Agreement. Dreyer's shall disclose Integrated Brands' confidential
information only to those Persons who require such information for the purpose
of performing the Collateral Agreements (as defined in the Asset Sale Agreement)
and shall use such information solely for the purpose of performing its
obligations under the Collateral Agreements. Confidential information may
include, but is not limited to, formulas, production processes, research, and
marketing and sales information. Said confidentiality requirement shall not
apply to any information which (i) has entered into the public domain through no
wrongful act or breach of any obligation of confidentiality on the receiving
party's or any third party's part; (ii) was in the lawful knowledge and
possession of, or was independently developed by, the receiving party prior to
the time it was disclosed to, or learned by, the receiving party as evidenced by
written records kept in the ordinary course of business by the receiving party
except this Section 11.a.ii will not apply to Dreyer's with respect to
information relating to the Ice Cream Assets and the Distribution Assets, all of
which shall remain subject to the restrictions notwithstanding Sellers'
Knowledge (as defined in the Asset Purchase Agreement); (iii) was rightfully
received from a third party not in violation of any contractual, legal or
fiduciary obligation of such third party; or (iv) was approved for release by
written authorization by the party having rights in such information.
b. Compelled Disclosure. In the event that a party is required by
law or court order or by stock exchange to disclose any confidential information
of the other party, that party shall (i) notify the other party in writing as
soon as possible, but in no event less than ten (10) calendar
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days prior to any such disclosure; (ii) cooperate with the other party to
preserve the confidentiality of such confidential information consistent with
applicable law; and (iii) use its best efforts to limit any such disclosure to
the minimum disclosure necessary to comply with such law or court order.
12. INDEMNIFICATION AND PRODUCT LIABILITY INSURANCE.
a. Indemnification.
x. Xxxxxx'x shall indemnify and hold harmless Integrated
Brands and its Affiliates and their officers, directors, agents,
employees, successors, assigns and Licensors (as defined below) from
and against any and all claims, suits, demands, actions, proceedings,
costs, damages, expenses (including, but not limited to, legal fees and
out-of-pocket expenses) and losses arising out of or related to
Dreyer's breach of, or non-compliance with, its obligations under this
Agreement. Dreyer's, upon written request from Integrated Brands,
promptly shall defend or settle such claim, suit, demand, action or
proceeding at Dreyer's expense. Nothing herein shall prevent Integrated
Brands from defending or settling, if it so desires in its own
discretion, any such claim, suit, demand, action or proceeding at its
own expense through its own counsel.
ii. Integrated Brands shall indemnify and hold harmless
Dreyer's and its Affiliates and their officers, directors, agents,
employees, successors and assigns from and against any and all claims,
suits, demands, actions, proceedings, costs, damages, expenses
(including, but not limited to, legal fees and out-of-pocket expenses)
and losses arising out of or related to Integrated Brands' breach of,
or non-compliance with, its obligations under this Agreement.
Integrated Brands, upon written request from Dreyer's, promptly shall
defend or settle such claim, suit, demand, action or proceeding at
Integrated Brands' expense. Nothing herein shall prevent Dreyer's from
defending or settling, at its own discretion, any such claim, suit,
demand, action or proceeding at its own expense through its own
counsel.
b. Insurance. At all times during the Term, Dreyer's shall
maintain appropriate insurance at commercially reasonable levels of coverage to
cover all of its obligations under this Agreement, including, without
limitation, general liability insurance and malicious product tampering, product
liability, and product recall insurance with respect to the manufacture and sale
of the Products, in each case with minimum coverage of [****] per occurrence and
[****] in aggregate general commercial liability coverage. Integrated Brands
will be named as an additional insured on such insurance policies during the
Term. If any of the foregoing types of insurance are not obtainable generally in
the market (it being understood that any increase in the costs of coverage shall
not deem such type of insurance unobtainable), then the absence of such
insurance coverage shall not constitute a breach of this Section 12.b.
13. NO JOINT VENTURE.
Nothing herein shall be construed to create any relationship of
employer and employee, agent and principal, partnership or joint venture between
the parties. Neither party shall assume, either directly or indirectly, any
liability of or for the other party. Neither party shall have the
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authority to bind or obligate the other party and neither party shall represent
that it has such authority.
14. ASSIGNMENT.
a. No Assignment by Dreyer's.
i. This Agreement and all rights and duties hereunder
are personal to Dreyer's. This Agreement or any portion thereof, or any
right or responsibility hereunder, shall not be assignable by Dreyer's
without the prior written approval of Integrated Brands.
ii. Any attempted assignment by Dreyer's without the
prior written approval of Integrated Brands shall be void and of no
effect.
b. Assignment by Integrated Brands. Integrated Brands may assign
this Agreement to any third party, provided that such third party is also
assigned all of Integrated Brands' right, title and interest in and to the
Trademarks and the Specifications, and Integrated Brands shall furnish written
notice of such assignment to Dreyer's.
15. LICENSORS.
With respect to any Products manufactured hereunder utilizing a
trademark owned by a third party and licensed by such third party (a "Licensor")
to Integrated Brands, Dreyer's understands and acknowledges that this Agreement,
and all of the obligations owed by Dreyer's, and all of the rights of Integrated
Brands hereunder, as any of the foregoing relate to said licensed trademark
and/or any Product utilizing said licensed trademark, are for the express
benefit of such Licensor, who shall have the independent right to enforce its
terms, including, but not limited to, provisions related to quality control,
directly upon Dreyer's.
16. NOTICES.
All notices to be made hereunder shall be in writing sent via
certified, overnight or registered mail (return receipt requested) or overnight
courier service with proof of delivery. Such notices shall be given to or made
at the respective addresses of the parties as set forth below unless
notification of a change of address is given, in writing, and the date of
receipt shall be deemed the date the notice is received:
To Integrated Brands:
Integrated Brands, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxx, Co-Chief Executive Officer
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To Dreyer's:
Xxxxxx'x Grand Ice Cream, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
To Nestle Holdings, Inc.:
Nestle Holdings, Inc.
c/o Nestle USA, Inc.
000 Xxxxx Xxxxx Xxxx.
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
with a copy to:
Howrey, Xxxxx, Xxxxxx & White LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
In the event that Integrated Brands gives notice regarding any breach or
violation of this Agreement by Dreyer's, Integrated Brands should also
concurrently provide a copy of such notice to Nestle Holdings, Inc.
17. WAIVER.
None of the terms of this Agreement shall be deemed to be waived or
amended by either party unless such a waiver or amendment specifically
references this Agreement and is in writing signed by the party to be bound.
18. ENTIRE AGREEMENT.
This Agreement, together with Asset Sale Agreement and the other
Collateral Agreements, contain the entire agreement between the parties hereto
with respect to the subject matter hereof and supersede any previous
understandings or agreements, whether written or oral, in respect of such
subject matter. This Agreement shall be binding upon and inure to the benefit of
the parties, their successors and assigns.
19. 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.
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20. 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 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.
21. ACTIONS AND PROCEEDINGS.
Dreyer's and its Affiliates and Integrated Brands 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. Integrated Brands irrevocably appoints Integrated
Brands' Co-Chief Executive Officer 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. Dreyer's
and its Affiliates hereby appoint Dreyer's General Counsel 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.
22. COUNTERPARTS.
This Agreement may be executed in several counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
23. CONTINGENCIES.
Whenever performance by a party of any of its obligations hereunder,
other than the payment of money due, is substantially or completely prevented by
reason of an act of God, strike, lockout or other labor difficulty,
transportation dislocation, fuel allocation, shortage of raw material or
supplies, accident or other casualty, production breakdown, requirement or
request of governmental authority or other circumstance beyond the reasonable
good faith control of the party required to act, performance shall be excused
for the period during which such state of affairs continues. However, the
affected party shall use its best efforts to resume performing hereunder at the
earliest practicable date, and shall promptly notify the other party of the
occurrence, or threatened occurrence, of any such event or circumstance it
reasonably expects will prevent it from performing hereunder and, to the best of
its knowledge, the expected duration of said state of affairs.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed as of the date and year first written above.
INTEGRATED BRANDS, INC. XXXXXX'X GRAND ICE CREAM, INC.
By: /s/ Xxxxx X. Xxxxx By: /s/ T. Xxxx Xxxxxx
-------------------------- ------------------------------------
Xxxxx X. Xxxxx T. Xxxx Xxxxxx
Co-Chief Executive Officer Chairman of the Board of Directors and
Chief Executive Officer
[Signature Page to Co-Pack Agreement]
