EXHIBIT 10.25
* 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
TRANSITION NICC PRODUCT DISTRIBUTION
AGREEMENT
BETWEEN
INTEGRATED BRANDS, INC.
AND
NESTLE ICE CREAM COMPANY, LLC
DATED AS OF JULY 5, 2003
This TRANSITION NICC PRODUCT DISTRIBUTION AGREEMENT (this "Agreement"),
dated as of July 5, 2003, is by and between Integrated Brands, Inc., a New
Jersey corporation ("Integrated Brands"), and Nestle Ice Cream Company, LLC, a
Delaware limited liability company ("NICC").
WHEREAS, Dreyer's Grand Ice Cream, Inc., a Delaware
corporation ("Dreyer's"), 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, NICC
desires that Integrated Brands provide to NICC, and Integrated Brands is willing
to provide, or cause to be provided, to NICC, certain transition 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
transition distribution services to NICC to facilitate NICC's transition of the
distribution of its products after 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:
"Customer" shall mean any Person that purchases the Products
(as defined in the Asset Sale Agreement) from NICC and to whom NICC from time to
time hereunder directs Integrated Brands to deliver the Products.
"Person" shall mean any natural person or legal entity.
"Products" shall mean all NICC products which were delivered
utilizing the Distribution Assets in the Territories as of the Closing Date.
"Territories" shall mean the territories set forth on Exhibit
B [****], including, without limitation, the counties in such Territories set
forth on Exhibit A, and "Territory" shall have a correlative meaning.
"Unit" shall mean [****].
2. Scope of Agreement. NICC hereby grants to Integrated Brands a
non-transferable right pursuant to the terms of this Agreement, to warehouse,
store, deliver and merchandise the Products on a non-exclusive basis in
accordance with this Agreement. NICC will provide certain transition services to
Integrated Brands in connection therewith as described in Exhibit C.
3. Title to the Products and Risk of Loss.
(a) Title to the Products shall not transfer to Integrated
Brands at any point. NICC 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 term of this Agreement shall be twelve (12) months,
beginning as of the date hereof (the "Term"); provided, however, that NICC may
remove from this Agreement any Product or service which Integrated Brands is
permitted to provide hereunder in any Territory upon seven (7) days' prior
written notice to Integrated Brands. During the Term, the parties agree to use
commercially reasonable efforts to effectuate an orderly transition, pursuant to
the estimated transition schedule set forth on Exhibit B attached hereto (the
"Transition Schedule") from Integrated Brands' distribution system to Dreyer's
or NICC's distribution systems so that no Customer perceives any disruption in
the delivery and merchandising services performed by Integrated Brands under
this Agreement. Exhibit B shall be incorporated herein.
5. The Products. During the Term, Integrated Brands will have the
obligation to deliver the Products in accordance with this Agreement.
6. Delivery and Service of the Products to Customers. Integrated
Brands will deliver the Products to Customers as directed by NICC. Deliveries
will be made on Integrated Brands' owned or leased vehicles, including the
vehicles included in the Distribution Assets.
7. Customer Billing and Collection. Integrated Brands will be
responsible for all billing and collection matters for amounts owed to NICC by
Customers; provided, however, that the credit risk that any Customer fails to
pay any amounts so billed shall be borne by NICC. Integrated Brands will
maintain the accounts and records for Customers in the same manner and with the
same degree of care that it maintains its own customer records. NICC will give
Integrated Brands the necessary information required for purposes of Integrated
Brands billing the Customers and reconciling Customer accounts. Any changes to
pricing or promotion information must be given to Integrated Brands at least
thirty (30) days prior to the effective date of such change pricing and/or
promotion information.
8. Fees and Payments.
(a) In consideration for the services provided by Integrated
Brands to NICC under this Agreement, NICC will pay to Integrated Brands [****]
per Unit (the "Service and Delivery Charges"), within thirty (30) days of
receipt of an invoice.
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(b) Each [****] during the Term, Integrated Brands will
deliver to NICC a written report (where written report includes e-mail) in
reasonable detail as to all deliveries of the Products to Customers during the
[****] and Integrated Brands will remit to NICC, on a [****] basis within [****]
days of delivery of such report all amounts collected by Integrated Brands from
Customers for the sale of the Products to such Customers detailed in such report
less the Service and Delivery Charges. For purposes of clarity, Integrated
Brands will be liable for [****] (other than as set forth above) and any other
[****] related to a Customer invoice for the Products, but will not be liable
for any [****] per the terms of Section 7.
9. 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 degrees F or colder at all times;
(b) all delivery vehicles must operate at temperatures of
-5 degrees 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.
10. 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) upon NICC'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;
(c) maintain relationships with Customers for the
Products in a manner consistent with that maintained by Integrated Brands for
its own customers;
(d) promptly perform all services necessary to execute a
Product recall or recovery of Product when requested by NICC and at NICC'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 NICC to review Integrated
Brands' performance;
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(g) properly handle and present the Products in a manner
appropriate to the type of Customer being serviced;
(h) advise NICC 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 NICC immediately of Integrated Brands
inability to fully perform any of its duties or obligations hereunder;
(j) permit NICC personnel to make periodic audits upon
reasonable notice of Integrated Brands facilities and vehicles used for
distribution of the Products in accordance with Section 13 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 NICC and the
Products;
(l) upon receipt of timely advance written notice from
NICC to Integrated Brands, discontinue any advertising or promotional practices
on behalf of the Products; and
(m) submit complete and accurate notices, reports,
claims, and requests for payment.
11. 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; and
(f) maintenance of temperature control program showing
storage temperature at each point-of-control of the Products by Integrated
Brands.
12. Sales to Customer. NICC shall be solely responsible
for establishing the price at which NICC Products are sold to Customers. NICC is
also solely responsible for suggesting resale shelf prices of the Products to
Customers. Integrated Brands shall receive no information
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from NICC, and shall not solicit any such information from Customers of NICC,
regarding suggested resale shelf prices of the Products.
13. Inspections.
(a) Without limiting any rights that may exist in any
other Collateral Agreement (as defined in the Asset Sale Agreement), NICC shall
have the following inspection rights. Integrated Brands agrees to permit NICC or
NICC'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 NICC'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 trucks or
facilities, and that Integrated Brands may reasonably restrict access such that
NICC 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 NICC'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 NICC'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 NICC as a result of any such inspection, shall be deemed
to relieve Integrated Brands of any of its obligations under this Agreement.
(b) NICC 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 NICC has overpaid amounts due
to Integrated Brands hereunder, Integrated Brands shall promptly remit such
overpayment to NICC. 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 NICC
in connection with such audit and shall remit to NICC 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 NICC shall bear any costs incurred by Integrated Brands in
connection with such audit and, NICC shall pay to Integrated Brands the amount
of such underpayment within ten (10) business days.
14. Representations of Integrated Brands. Integrated Brands
represents and covenants to NICC 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.
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15. Representations of NICC. NICC 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.
16. Termination.
(a) 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 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.
(b) Integrated Brands may terminate, in its sole discretion,
this Agreement immediately if NICC ceases business operations with respect to
all of the Products.
(c) Integrated Brands understands that NICC 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.
(d) 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.
(e) 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 NICC Products in substantially the
same manner that Integrated Brands treats its own products as provided in
Section 9 hereof.
(f) 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 NICC, 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) NICC will promptly pay all
amounts owing Integrated Brands
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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.
17. 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) 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 NICC 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 [****] per occurrence and [****] in aggregate
general commercial liability coverage.
18. Warranty and Indemnification.
(a) NICC 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 NICC immediate written notice of
any loss or claim and cooperates fully with NICC in the handling of such claims.
(b) Integrated Brands, at its own expense, will at all times
indemnify and hold harmless Nestle USA, Inc., NICC, Dreyer's and their
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, (i) that may be assessed against NICC or
its Customers or which NICC 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 or (ii) to the extent arising from or related to (A)
any acts or omissions of any Transition Employee (as defined in Exhibit C)
during the Transition Period (as defined in Exhibit C) applicable to such
employee, other than to the extent arising out of actions taken at the direction
of NICC or its Affiliates, (B) any employment-related claims by governmental
authorities arising out of actions or omissions of Integrated Brands (as the
entity responsible for the direction and supervision of the Transition Employees
during the applicable Transition Period) or its Affiliates with respect to
Transition Employees during the Transition Period applicable to such employee,
(C) any injury, disability or illness incurred by any of the Transition
Employees during the Transition Period applicable to such employee, other than
any caused by NICC or any of its Affiliates, (D) any other claims against
Dreyer's, NICC or Nestle USA, Inc. or any of their Affiliates by any Transition
Employee arising out of the provision of the services provided hereunder, except
to the extent related to the actions or omissions of NICC and its Affiliates or
any claim that the employment arrangement contemplated by Exhibit C constituted
a termination (constructive or otherwise) of any Transition Employee, and (E)
any
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claims against Dreyer's, NICC, Nestle USA, Inc. or any of their Affiliates
arising out of or relating to discrimination or alleged discrimination on the
basis of age, race, sex or the like with respect to the decision by Integrated
Brands as to which Transition Employees to hire (and any subsequent termination
of any non-hired employees, except to the extent related to NICC's obligations
under its compensation, benefits and severance programs). NICC, at its own
expense, will at all times indemnify and hold harmless Integrated Brands 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, to the extent arising from or related to
(i) any acts or omissions of any Transition Employee during the Transition
Period applicable to such employee taken at the direction of NICC or its
Affiliates, (ii) any employment related claims by governmental authorities
arising out of actions or omissions of NICC or its Affiliates with respect to
Transition Employees during the Transition Period applicable to such employee,
(iii) any injury, disability or illness incurred by any of the Transition
Employees during the Transition Period applicable to such employee caused by
NICC or any of its Affiliates, (iv) any other claims against Integrated Brands
or any of its Affiliates by any Transition Employee to the extent related to the
actions or omissions of NICC and its Affiliates or with respect to any claim
that the employment arrangement contemplated by Exhibit C constituted a
termination (constructive or otherwise) of any Transition Employee, and (v) any
claims against Integrated Brands or any of its Affiliates arising out of or
related to discrimination or alleged discrimination on the basis of age, race,
sex or the like with respect to any actions taken by Dreyer's, NICC, Nestle USA,
Inc. or any of their Affiliates with respect to the termination of any
Transition Employees by any of the foregoing, which termination is not related
to the decision by Integrated Brands as to which Transition Employees to hire).
(c) The indemnitee shall give the indemnitor prompt notice of
any claim or suit coming within the scope of the indemnity under Section 18(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) Nothing contained herein shall preclude a party hereto
from seeking injunctive relief or specific performance.
19. Management of Business. Except to the extent that the specific
provisions of this Agreement expressly provide otherwise, NICC 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 capacity
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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 9 hereof.
20. 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 NICC 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 NICC. Integrated Brands shall
disclose NICC'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.
21. 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 NICC nor will they be entitled to any benefits or
privileges provided by NICC to its employees. As a consequence, NICC 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.
22. Compliance with Applicable Law. Integrated Brands and NICC
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.
23. 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 NICC:
c/o Dreyer's Grand Ice Cream, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
(ii) If to Nestle Holdings, Inc.:
Nestle Holdings, Inc.
c/o Nestle USA, Inc.
000 Xxxxx Xxxxx Xxxxxxxxx
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.
(iii) If to Integrated Brands:
Integrated Brands, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxx, Co-Chief Executive Officer
with a copy to:
Xxxxxxx Procter LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx, Esq.
In the event that Integrated Brands gives notice regarding any breach or
violation of this Agreement by NICC, Integrated Brands shall also concurrently
provide a copy of such notice to Nestle Holdings, Inc.
24. 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.
25. Actions and Proceedings. Integrated Brands and its Affiliates
and NICC 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. NICC 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.
26. 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.
27. 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.
28. 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.
29. Assignment. Neither party shall be permitted to assign this
Agreement (including through operation of law or through a change of control) or
delegate its obligation to any Person under this Agreement without the other
party's prior written consent; provided, however, that NICC shall be permitted
to assign this Agreement to any of its Affiliates.
30. 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.
31. 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/ Xxxxx X. Xxxxx
----------------------------------
Xxxxx X. Xxxxx
Co-Chief Executive Officer
NESTLE ICE CREAM COMPANY, LLC
By: /s/ T. Xxxx Xxxxxx
----------------------------------
T. Xxxx Xxxxxx
Chief Executive Officer
[Signature Page to Transition NICC Product Distribution Agreement]
EXHIBIT A
Counties
[****]
* Certain information in this document, including Exhibit A (consisting of five
pages), 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 [****].
Exhibit A to Transition NICC Product Distribution Agreement
- 1 -
EXHIBIT B
Transition Distribution Services Schedule
[****]
* Certain information in this document, including Exhibit B (consisting of one
page), 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 [****].
Exhibit B to Transition NICC Product Distribution Agreement
- 1 -
EXHIBIT C
Transition Distribution Services
[****]
* Certain information in this document, including Exhibit C (consisting of two
pages), 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 [****].
Exhibit C to Transition NICC Product Distribution Agreement
- 1 -
