Exhibit 10.8.4
Termination of Subdistributor Agreement
RE: Subdistributor Agreement dated February 7, 1994, by and between
Xxxxxx'x Grand Ice Cream, Inc. ("Dreyer's") and Ben & Jerry's Homemade, Inc.
("Ben & Jerry's").
The following are the terms and conditions upon which we are prepared to
terminate the above referenced Agreement and purchase certain assets.
1. The Agreement will be terminated effective October 29, 1995, and as of
that date, all rights to distribute Ben & Jerry's products in the New
York Territory will revert to Edy's of New York pursuant to the terms
of the Distribution Agreement between Ben & Jerry's and Dreyer's dated
January 6, 1987, as amended.
2. The Subdistribution Payment due from Ben & Jerry's for the last
quarter of 1995 will be prorated to the termination date of the
Agreement. Such prorated payment will be due upon closing of the asset
sales contemplated by this letter.
3. Subdistributors have been notified of this change prior to October 1,
1995 with a letter signed jointly by Edy's of New York and Ben &
Jerry's of New York.
4. As of October 29, 1995, Edy's of New York will occupy and operate the
Ben & Jerry's of New York distribution center located at 00-00 00xx
Xxxxxx, Xxxx Xxxxxx Xxxx, Xxx Xxxx. Such use by Edy's will continue
until the earlier of (a) the termination of the underlying lease; (b)
February 28, 1996; or (c) the facility is sublet to a third party by
Ben & Jerry's of New York. During the period of Edy's occupancy Ben &
Jerry's will remain as the named party on the underlying lease and
will continue to have access to the facility. Expenses related to
Edy's occupancy will be billed to Edy's monthly.
It is Edy's intention to utilize the facility as a distribution
location for the out-of-home class of trade until such time as the
inventory of Ben & Jerry's product purchased pursuant to this letter
is significantly reduced. At such time Edy's will conduct such
distribution from its own facilities.
5. Edy's will offer to the employees of Ben & Jerry's of New York, except
Xxxxxx Xxxxx and Xxxxx Xxxxxxxx, positions of employment with
reasonably comparable compensation.
6. Edy's will purchase the salable inventory of Ben & Jerry's products
held at the Ben & Jerry's of New York distribution center as of
October 29, 1995. The quantity of such inventory will be verified by a
join physical count on that date, and with payment will be made by
Edy's promptly thereafter. The price of the inventory will be the
normal distributor price currently charged to Edy's of New York by Ben
& Jerry's Homemade, Inc.
7. Edy's will purchase from Ben & Jerry's the hi/lo lift truck and hand
lift truck currently used by Ben & Jerry's. The purchase price will be
the net book value on the books of the assets on the books of Ben &
Jerry's of New York. In addition, Edy's will purchase the trucks and
truck bodies currently owned and/or leased by Ben & Jerry's of New
York. The purchase price for the truck assets will be negotiated by
the parties in good faith. Ben & Jerry's will deliver good title to
all assets purchased by Edy's pursuant to this paragraph free and
clear of all liens and encumbrances. such asset sales shall be made
pursuant to the terms of an Asset Purchase Agreement to be entered
into by the parties. Ben &
Jerry's will remove any and all of its remaining assets from the 00xx
Xxxxxx location prior to the end of the lease term or such date that
the facility is sublet or returned to the landlord, whichever is
earlier.
8. Edy's will provide storage space at the Long Island City facility for
approximately twelve (12) Ben & Jerry's storage carts and/or vendor
freezers. If Edy's needs to utilize the space during its occupancy,
Edy's will give Ben & Jerry's of New York five day's notice to remove
the equipment.
9. Accounts Receivable
(a) Edy's will purchase the Ben & Jerry's of New York Accounts
Receivable for the aggregate amount carried on the books of Ben &
Jerry's of New York on October 1, 1995, excluding those amounts more
than 90 days old as of that date and also excluding those acknowledged
by Ben & Jerry's of New York to be in dispute as of that date. Ben &
Jerry's of New York will provide to Edy's full supporting
documentation (signed invoices) to substantiate these receivables and
will cooperate fully with Edy's to assist in the collection of these
receivables. The aggregate amount of these receivables, less any
collected in the interim by Ben & Jerry's, will be payable to Ben &
Jerry's as collected, but in an event within 180 days after October
28, 1995 whether or not Edy's h as received payment form each account.
Ben & Jerry's of New York will indemnify Edy's for any amounts paid to
purchase Accounts Receivable to the extent such amounts are not
reimbursed to Edy's by the applicable account, provided that this
indemnification will apply only to accounts for which Edy's has not
been furnished full supporting documentation. Edy's agrees that, until
such time as Ben & Jerry's of New York receives payment in full for
accounts which are acknowledged to be in dispute, they will not sell,
distribute or otherwise supply any Ben & Jerry's products to such
accounts.
(b) Edy's shall promptly remit to Ben & Jerry's of New York any monies
received by Edy's for products distributed and sold by Ben & Jerry's
in the New York Territory before the termination date.
(c) Edy's will provide terms to such current distributors who Edy's
determines in its sole discretion will continue to be authorized Ben &
Jerry's distributors.
(d) It is Edy's intention to appoint Xxxx N'Xxxx a Xxx & Jerry's
distributor to the out-of-home trade in northern New Jersey contingent
upon resolving the outstanding receivables balance owed to Ben &
Jerry's by J & M Distributors. To the extent this can't be resolved,
then J & M Distributors will remain a subdistributor and will be
expected to pay their receivable balance to Ben & Jerry's. This will
be enforced per the control of Ben & Jerry's shipments to J & M.
10. This agreement supersedes all other understanding or agreements
relating to the distribution of Ben & Jerry's products in the New York
out-of-home trade and the parties agree that there are no
representations, promises, inducements or agreement, oral or written,
which shall have any effect unless set forth in this agreement. No
modification of this agreement shall be effective unless in writing,
signed by both parties.
Agreed to this 27th day of October, 1995.
Ben & Jerry's Homemade, Inc. Xxxxxx'x Grand Ice Cream, Inc.
By:______________________ By:_______________________
/s/Xxx X'Xxxx /s/Xxx Xxxxxxxxx,
Its:Manager of Treasury Vice President, Sales
Operations
