The Pillsbury Company Amendment Agreement
Amendment Agreement dated as of January 15, 1999 between Ben & Jerry's
Homemade, Inc. (the "Manufacturer") and The Pillsbury Company (the
"Distributor") to the Distribution Agreement dated as of August 26, 1998 (the
"Agreement").
WHEREAS, the parties wish to supplement certain provisions of the
Agreement.
NOW THEREFORE, in consideration of these premises, the mutual promises set
forth below and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows.
1. Reference is made to the last sentence of the third paragraph of Section
2.10 of the Agreement which reads as follows:
"In any event, Distributor agrees that it shall fully implement distribution of
the Products in the Distributor Territory by March 1, 1999, provided that it has
received six months prior written notice or such lesser notice which is
reasonable in the judgment of the Distributor in terms of the time needed for
Distributor to gear up with respect to any market in question."
Reference is also made to notice from Manufacturer to Distributor dated October
15, 1998 specifying a starting date of April 15, 1999. The parties agree to void
the notice dated October 15, 1998 and to delete the last sentence of the third
paragraph of Section 2.10 and to add the following:
"In any event, Distributor agrees that it shall fully implement distribution of
the Products in the Distributor Territory by September 1, 1999 (or such earlier
date with respect to any portion of the Distributor Territory as shall be
mutually agreed); provided that Distributor agrees that it shall fully
implement, by April 15, 1999(1), distribution in the supermarket channel (three
or more cash registers) of the Products in that portion of the Distribution
Territory that is defined as the New York Territory under the Dreyer's Agreement
(as defined in the Agreement) and distribution in the supermarket channel of the
Products in the area surrounding Albany, New York presently handled by Vermont's
Finest and also distribution of the Products, as soon as practicable after May
1, 1999 (pursuant to detailed arrangements to be mutually agreed between the
Manufacturer and the Distributor), in those portions of New Jersey and
Pennsylvania presently handled by Xxxx & Xxxx provided further that nothing
herein shall grant any distribution rights to Distributor except for the
Distributor's owned and operated distribution system (including internals) for
the areas as set out in Schedule 2A to the Agreement on the date the Agreement
was signed.
1 It is understood that the business week starts Monday, April 19, 1999.
The Manufacturer also confirms the inclusion of Texas in Schedule 2A of the
Agreement, effective September 1, 1999, and confirms that, effective April 15,
1999, it has no exclusive distributor for the non-supermarket channels in the
New York Territory as defined above. The Manufacturer further confirms that its
distribution agreement with Dreyer's, as in effect on the date hereof, and its
new distribution agreement with Dreyer's, effective for distribution commencing
on or after September 1, 1999, as in effect on the date hereof, do not grant
distribution rights to Dreyer's which conflict with the distribution rights,
effective September 1, 1999 of the Distributor for its owned and operated
distribution system (including internals) for the areas as set out in Schedule
2A to the Agreement on the date the Agreement was signed, and the rights granted
to the Distributor under Section 1 of this Amendment Agreement.
2. The parties further agree that Section 8.1 is hereby amended by adding
the following sentence at the end thereof:
"The October 1, 2002 date in this Section 8.1 and in Section 8.2 of this
Agreement shall in each case be changed to October 1, 2003."
3. The Manufacturer agrees to pay the Distributor $150,000, payable within
five days of the date hereof.
4. The Manufacturer hereby confirms that Dreyer's has agreed to a dismissal
with prejudice of the litigation filed by Dreyer's in 1998 against the
Manufacturer.
5. Except as expressly amended hereby, the Agreement shall remain in full
force and effect. Without limiting to the foregoing the Manufacturer confirms
its indemnification obligations to the Distributor contained in Sections 11 and
11.3 of the Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment
Agreement to be duly executed and delivered by its duly authorized
representative.
BEN & JERRY'S HOMEMADE, INC.
By:
THE PILLSBURY COMPANY
By:
