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Exhibit 10.50
[EXECUTION COPY]
EXCLUSIVE SUPPLY AGREEMENT
This Exclusive Supply Agreement, dated as of November 19, 2002 (this
"Agreement"), is made and entered into by and between TCBY Systems, LLC, a
Delaware limited liability company ("TCBY"), and Americana Foods Limited
Partnership, a Texas limited partnership ("AF"); TCBY and AF may be referred to
in this Agreement as a "Party" in the singular or "Parties" in the plural.
A. TCBY, directly or through one or more affiliated or subsidiary
entities, is engaged in the business of franchising, marketing and selling
yogurt, ice cream and other products through franchised traditional stores,
non-traditional locations and packaged retail.
B. AF is engaged in the business of manufacturing, marketing and
selling ice cream, frozen yogurt, yogurt mix and frozen novelty items
(collectively, the "Products"), and AF currently is the supplier of TCBY-branded
products to TCBY's distributors and franchisees.
C. Pursuant to this Agreement, TCBY and AF desire to document the
arrangement pursuant to which TCBY will engage AF to exclusively supply the
Products as more specifically set forth on Schedule I hereto (collectively, the
"Licensed Products") from and after November 20, 2002 (the "Effective Date") to
TCBY's distributors and franchises produced by AF under license and pursuant to
the terms of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
1. Conditionally Exclusive Supply of Licensed Products. Subject to
the terms and conditions of this Agreement, TCBY agrees that it will obtain all
of its requirements for the Licensed Products from AF and AF agrees to
manufacture and to sell such Licensed Products.
A. AF Guaranteed Amount; Pricing. In consideration for AF's
manufacture of the Licensed Products and other services provided to TCBY
under this Agreement, AF will receive a portion of the sales price of each
of the Licensed Products sold by TCBY and AF hereunder (the "AF Portion").
The AF Portion shall be equal to (i) the sum of (A) a guaranteed
manufacturing fee on a per unit basis for each Licensed Product as set
forth on Schedule II plus or minus the Annual Adjustment (as defined below)
(the "Guaranteed Amount") and (B) AF's ingredient, material, packaging,
delivery and shipping costs of the relevant Licensed Product (the
"Manufacturing Costs"), plus or minus (ii) any cumulative adjustments to
reflect increases or decreases in the Manufacturing Costs then in effect
and determined in accordance with Section 1A(i) below (the "Price
Adjustment"), plus (iii) a loss factor on a per unit basis for each
Licensed Product as set forth on Schedule II ("Shrink"). For the avoidance
of any ambiguity, it is the intention of AF and TCBY that during the
periods between the Price Adjustments, AF will receive the AF Portion then
in effect whether or not any Manufacturing Costs may have increased or
decreased during such periods.
(i) Beginning on the Effective Date, the AF Portion shall
be the per unit amount set forth in Row C of Schedule II hereto, which
amount reflects the sum of the Guaranteed Amount and the Manufacturing
Costs as of such date. Beginning on December 29, 2002, the Guaranteed
Amount set forth on Schedule II hereto shall be reduced by
[CONFIDENTIAL]1 per gallon for all of the Licensed Products other than
the Specialty Products (as defined below); the Distributor Purchase
Price (as defined below) for such Licensed Products shall not be
changed and, accordingly, the TCBY Portion (as defined below) for such
Licensed Products shall thereby be increased by [CONFIDENTIAL]1 per
gallon. From and after January 1, 2003, AF shall have the right to
adjust the Manufacturing Costs on a quarterly basis, by giving written
notice to TCBY (in accordance with Section 10 hereof) of its intention
to effect such an adjustment at least thirty calendar days prior to
the last day of each calendar quarter (the "Price Adjustment Notice").
The Price Adjustment Notice shall set forth the amount of the Price
Adjustment based on AF's good faith estimate of any increase or
decrease in the Manufacturing Costs at the end of such calendar
period. In the Price Adjustment Notice, AF shall, in good faith,
clearly and reasonably document any increases or decreases in the
Manufacturing Costs that require the Price Adjustment. AF shall use
its best judgment in assessing the feasibility of passing on any Price
Adjustments. Any Price Adjustments shall become effective on the last
day of the calendar quarter in which the Price Adjustment Notice is
sent.
º 1
º Confidential treatment has been requested for the redacted portion. The
confidential, redacted portions have been filed separately with the SEC.
º 1
º Confidential treatment has been requested for the redacted portion. The
confidential, redacted portions have been filed separately with the SEC.
(ii) In addition, on each anniversary of this Agreement, the
Guaranteed Amount shall be adjusted in an amount equal to any increase
or decrease in the Consumer Price Index for Dallas/Fort Worth (the
"Annual Adjustment") to compensate AF for fluctuations in labor,
utility and overhead costs.
(iii) The pricing of any new Products TCBY may order from AF
shall be as mutually agreed upon by the Parties and Schedule II hereto
shall be amended to reflect such pricing. If the Parties are unable to
agree on the pricing of new Products, then, pursuant to Section 6 of
this Agreement, TCBY shall not be obligated to obtain its requirements
for such Product from AF under this Agreement.
(iv) The Parties agree to update Schedule II from time to
time to reflect price adjustments in accordance with the terms of this
Agreement.
B. Invoicing.
(i) At the time of each shipment of Licensed Product, AF
shall issue an invoice or invoices (in the form as reasonably directed
by TCBY) to the relevant distributor or sub-distributor (the
"Distributors") requiring payment for the Licensed Product so shipped,
at the aggregate per unit price thereof set forth in Row A of
Schedule II hereto, including the Price Adjustment then in effect.
Such per unit price, as it may be so adjusted from time to time by the
Price Adjustment or by TCBY in its sole discretion (subject to
agreements TCBY may have with Distributors, franchisees and other
customers) is the "Distributor Purchase Price" for such Licensed
Product. As of the Effective Date, the Distributor Purchase Price
includes franchise royalty and advertising payment amounts, but TCBY
reserves the right to invoice directly for such amounts in the future.
The difference between the Distributor Purchase Price and the AF
Portion in effect at any time for a given Licensed Product is the
"TCBY Portion" (such amount consists of the yogurt formulation charge
and, if invoiced by AF, the franchise royalty and franchise
advertising fund amounts) per unit of such Licensed Product and, as of
the Effective Date, is the per unit amount set forth in Row B of
Schedule II hereto. AF shall have the right to require default
interest and penalties for non-payment, delayed payment or other
non-compliance with invoice payment terms for a period greater than
thirty calendar days. All sales shall be made FOB at AF's
manufacturing facility.
(ii) The AF Portion shall be deemed to be earned by AF and
to be the sole property of AF. The TCBY Portion shall be deemed to be
earned by and be the sole property of TCBY. Any other amount received
by TCBY from its distributors or subdistributors pursuant to the
applicable distribution agreements or otherwise shall be the sole
property of TCBY and AF acknowledges and agrees that (A) AF shall have
no right, title or interest therein and (B) TCBY shall have no
obligation to account or otherwise report to AF with respect to any
amounts other than the AF Portion.
C. Certain Collection Matters.
(i) Collection for "One Invoice" Billings. Certain
invoices will require the Distributors to make payment of the entire
amount of the Distributor Purchase Price to AF, in which case AF shall
act as a collection agent for TCBY and be responsible for remitting
the TCBY Portion of the Distributor Purchase Price to TCBY; provided,
however, that TCBY reserves the right to collect the TCBY Portion
directly from the Distributors. In acting as a collection agent for
TCBY, AF shall use commercially reasonable efforts to collect all
amounts owing from the Distributors; provided, however, that, except
as set forth in Section C(ii), in no event shall AF have any liability
to TCBY for the TCBY Portion of any uncollected amounts, nor shall
TCBY have any liability to AF for the AF Portion of any uncollected
amounts. If any amount collected from a Distributor is equal to less
than the full amount due from such Distributor at such time, then such
amount shall be allocated pro rata between the AF Portion and the TCBY
Portion.
(ii) Collection for Specialty Products. On or before the
date that is twenty calendar days following the due date of any
invoice (the "Invoice Date") for Specialty Products (as defined
below), AF shall remit the TCBY Portion owing under such invoice to
TCBY, regardless of whether AF shall have collected the entire amount
of the Distributor Purchase Price owing under such invoice. If any
portion of the Distributor Purchase Price owing under any invoice
remains uncollected on the date that is forty-five calendar days
following the Invoice Date for such invoice, then TCBY shall remit an
amount of cash equal to the TCBY Portion of such uncollected amount
(the "Claw Back Amount") to AF on such date. If AF has not received
the Claw Back Amount from TCBY by the date that is fifty calendar days
following the Invoice Date, then AF shall have the right to set off
the Claw Back Amount against other amounts owing to TCBY under this
Agreement. If any payment in respect of a Distributor Purchase Price
is received for which a Claw Back Amount was received or set off, then
AF promptly will remit the TCBY Portion of such payment to TCBY. As
used in this Section C(ii), the term "Specialty Products" means those
Licensed Products set forth on Schedule I under the heading "Specialty
Products."
(iii) In order to induce TCBY to enter into this Agreement,
AF hereby agrees that in the event of non-payment, delayed payment or
other non-compliance with invoice payment terms for a period greater
than fourteen calendar days by the Distributors, without the prior
written consent of TCBY, AF shall not have the right to cease shipping
the Licensed Products to such Distributors, except that AF may cease
shipping the Licensed Products to such Distributors if (i) AF gives
notice in writing to TCBY (in accordance with Section 10 hereof) of
such non-payment, delayed payment or non-compliance and (ii) within
ten calendar days following AF's notification, such Distributor has
not become fully current on all outstanding invoices required by their
terms to by paid by such date.
(iv) Each of AF and TCBY agrees that if it receives any
payment in its lockbox account or in the lockbox account to which
payments have been made prior to the date of this Agreement that
should have been made to the other party's lockbox account in
accordance with the foregoing provisions, it will cooperate with the
other in good faith promptly to redirect such payment so received to
the lockbox account to which such payment should have been made in
accordance with the foregoing provisions and, pending such payment
being so redirected, will hold in trust for the other all amounts so
received on behalf of the other.
D. Raw Materials. For each Licensed Product, TCBY will
provide an annual written estimate of projected sales and will communicate
any adjustments to such estimate to AF on a monthly basis. Based on such
estimate, AF will order raw materials (including actual ingredients,
packaging materials, etc.) necessary for the manufacture of such Licensed
Product pursuant to this Agreement, be billed directly for the cost of such
raw materials and remit payment directly to the raw materials suppliers. In
the event that reliance on the estimate results in AF ordering more raw
materials than are required and such raw materials are unable to be used by
AF in its manufacture of Products, then TCBY shall have the right to
purchase such raw materials from AF at AF's cost. If TCBY does not purchase
such raw materials and such raw materials are unable to be used by AF in
its manufacture of Products and become obsolete, then TCBY shall reimburse
AF for the cost of such obsolete raw materials. Except as set forth in the
immediately preceding sentence, TCBY has no obligation with regard to AF's
purchase of raw materials required in the production of such License
Product. For purposes of this Agreement, AF's ordering in reliance on the
estimate of less raw materials than are required to meet TCBY's
requirements shall be referred to as a "Raw Material Shortage."
E. Co-Pack Agreements. AF shall have the right to contract
with and sublicense to a third party for the actual manufacturing of the
Licensed Products (such agreements, "Co-Pack Agreements"), if such
co-packer (a) is approved in writing by TCBY (which approval will not be
unreasonably withheld, conditioned or delayed) and (b) such co-packer
complies with the obligations set forth in Section 2.3 of the License
Agreement (as defined below). TCBY hereby approves of all Co-Pack
Agreements in effect as of the Effective Date, copies of which have been
made available to TCBY, and confirms that all of such co-packer's
obligations under the License Agreement have been satisfied. AF's
obligations as set forth in this Agreement shall not be altered in any
manner as a result of the existence of any Co-Pack Agreements with third
party manufacturers and AF shall at all time be responsible for the conduct
of its sublicensees.
2. Products. AF's right to be TCBY's exclusive supplier of
Licensed Products shall be subject at all times to the satisfaction of all of
the terms and conditions set forth in this Section 2.
A. Quantity.
(i) Minimum. As of the Effective Date, TCBY requires the
manufacture of the quantity of each Licensed Product set forth
adjacent from such Licensed Product on Schedule I attached hereto (the
"Effective Date Quantity"). TCBY agrees that its requirements for the
Licensed Products will be at least equal to 75% of the Effective Date
Quantity for the term of this Agreement. In the event that TCBY's
requirements for the Licensed Product shall fall below an amount equal
to 75% of the Effective Date Quantity, then AF's sole remedy shall be
the right to propose new pricing for the Licensed Products by delivery
to TCBY of a written notice specifying the proposed revisions to
Schedule II, if TCBY does not agree to the new pricing, then AF shall
have the right to terminate the Agreement 180 days following delivery
of the written notice specifying the proposed revisions to
Schedule II.
(ii) Exclusive Supply. Provided that the TCBY
requirements for any Licensed Product at any time do not exceed 125%
of the Effective Date Quantity, AF shall be required to supply 100% of
TCBY's requirements of the Licensed Products during the term of this
Agreement. If the TCBY requirements for any Licensed Product exceed
125% at any time during the term of this Agreement, then AF shall have
the option to produce such excess amount of such Licensed Product, but
in no event shall be required to produce such Licensed Product. In the
event that AF elects not to produce any portion of such excess amount,
then TCBY shall have the right to obtain such portion of the such
excess amount from other manufacturers.
(iii) General Interruption. If there occurs any General
Interruption (as defined below) in supply, then TCBY may obtain any or
all of its requirements from another supplier only for so long as such
General Interruption is in effect, subject to such longer-term supply
commitments that TCBY may have been required to make in order to
obtain the Licensed Products during such General Interruption. TCBY
agrees to use it best efforts not to enter into any long-term supply
arrangements with other suppliers during a General Interruption. A
"General Interruption" shall result if for any period of seven
business days AF shall fail to supply at least 95% of the Set Amount
of yogurt mix.
(iv) Raw Material Shortage; Force Majeure. If, as a
direct result of a Raw Material Shortage or a Force Majeure Event (as
defined below), AF shall be unable to produce any or all of TCBY's
requirements for any Licensed Products, then, for so long as such Raw
Material Shortage or Force Majeure Event shall continue effect, AF
shall be deemed to have not breached this Agreement. During such time,
TCBY shall not have a termination right; however, if such Raw Material
Shortage or Force Majeure Event shall result in a General
Interruption, then TCBY shall have the right to cover its requirements
of such Licensed Products as set forth under Section 2A(iii). For the
purposes of this Section 2A(iv), a "Force Majeure Event" shall mean
any fire, flood, strike, power outage, lock-out, epidemic, accident,
war, act of terrorism, shortage of customarily used transportation
equipment (or suitable substitute therefor) or other causes beyond the
reasonable control of AF, which prevent it from manufacturing the
Licensed Products as set forth in this Agreement.
B. Quality.
(i) Quality Standards. AF shall manufacture the Licensed
Products strictly in accordance with the standards, procedures,
specifications, formulations and recipes from time to time reasonably
established by TCBY and shall handle and store all Raw Materials and
all finished Licensed Products in accordance with the quality control
standards set forth in AF's Quality Assurance Manual (collectively,
the "Quality Standards"), a copy of which has been made available to
TCBY.
(ii) Compliance with Regulations. AF agrees that the
Licensed 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 TCBY otherwise agrees in writing, AF 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. AF agrees to notify TCBY promptly of any
regulatory action of which Licensee 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 Licensed Products.
(iii) Non-Conforming Licensed Products. If at any time
TCBY reasonably deems the quality of the Licensed Products to be below
the Quality Standards, TCBY promptly shall notify AF in writing (in
accordance with Section 10) of such determination (a "Quality
Notice"). After receipt of a Quality Notice, AF shall have five
business days to correct the lack of conformity identified by TCBY;
provided, however, if TCBY reasonably determines and so specifies in a
Quality Notice that the lack of conformity results from contamination
or poses an immediate threat to TCBY's customers, then AF shall have
one business day after receipt of such Quality Notice to correct the
lack of conformity identified by TCBY. If AF fails to correct such
lack of conformity within such specified period, TCBY shall have the
right to obtain any or all of its requirements from another supplier
only for so long as such lack of conformity remains uncorrected,
subject to such longer-term supply commitments that TCBY may have been
required to make in order to obtain the Licensed Products during such
lack of conformity. TCBY agrees to use it best efforts not to enter
into any long-term supply arrangements with other suppliers during a
lack of conformity.
(iv) Product Recall and Withdrawal. Either Party shall
immediately advise and consult with the other as to any Licensed
Product recall or withdrawal considerations; provided that TCBY shall
have the absolute right to recall or withdraw any Licensed Product if
it determines in its sole discretion that (A) such Licensed Product
may be contaminated, (B) the use and/or distribution of such Licensed
Product may pose an immediate threat to TCBY's customers or (C) if
such Licensed Product otherwise fails to conform to the Quality
Standards. TCBY shall bear the cost of any recall or withdrawal unless
such recall or withdraw results directly from AF's manufacture of the
Licensed Products or procurement of raw materials used in the
manufacture of the Licensed Products pursuant to this Agreement, in
which case AF shall bear the cost of any recall or withdrawal.
(v) TCBY Inspection Rights. TCBY and its 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 AF in connection with its
manufacture of the Licensed Products pursuant hereto and to examine
the Licensed Products in process of manufacture and (B) to gain
reasonable access to the records of AF relating to quality control, in
each case so long as TCBY does not unreasonably disrupt the normal
operations of AF. AF shall maintain books and records regarding
customers, permitted co-packers pursuant to Co-Pack Agreements and
permitted sublicensees pursuant to the License Agreement, product
complaints and claims and all other particulars necessary for
verifying compliance with the terms of this Agreement. AF shall make
such books and records available to TCBY and its designated
representatives, from time to time, during normal business hours and
upon reasonable prior notice. Such records shall be maintained by AF
and its Affiliates 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. TCBY shall be entitled to make copies,
at its expense, of any such records.
C. License. Concurrently with the execution of this
Agreement, TCBY Enterprises, Inc. ("Enterprises"), TCBY and AF entered into
that certain Trademark License Agreement, dated as of even date herewith
(the "License Agreement"), pursuant to which, among other things, AF was
granted a license from Enterprises and TCBY to utilize the TCBY trademarks,
service marks and trade names specified therein in the manufacture of the
Licensed Products.
D. Compliance with Laws. AF will manufacture the Licensed
Products in compliance with all applicable federal, state and local laws or
regulations to which AF is subject.
E. Insurance. At all times during the term of this Agreement,
AF 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 Licensed Products, in each case
with minimum coverage of $1,000,000 per occurrence. If any of the foregoing
types of insurance are not obtainable generally in the market (it being
understood that any increase in the cost 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 2E.
3. Term. The term of this Agreement shall be for five years
commencing on the Effective Date (the "Initial Term") and shall automatically
renew thereafter for an additional five years (the "Renewal Term"). Effective
upon the commencement of the Renewal Term, the Guaranteed Amount and other
pricing terms described in Section 1 of this Agreement shall be reset to
then-current market levels as mutually agreed by the Parties. The Parties agree
to use their commercially reasonable efforts to negotiate and agree on the
adjustment of the Guaranteed Amount and the pricing terms to reflect
then-current market pricing at least sixty calendar days prior to the expiration
of the Initial Term. If no such agreement is reached by the day thirty days
prior to the expiration of the Initial Term, then the adjustment shall be
decided by binding arbitration in accordance with the applicable rules of the
American Arbitration Association then in effect unless the Parties mutually
agree otherwise. Any such arbitration shall be held in Salt Lake City, Utah.
Judgment on the decision rendered in arbitration may be entered in any court
having jurisdiction thereof.
4. Termination.
A. TCBY, at its option, shall have the right, in addition to any
other remedy available at law or in equity, to terminate this Agreement
upon the occurrence of any one or more of the following events:
(i) automatically without notice to AF, in the event the
License Agreement is terminated in accordance with its terms;
(ii) AF defaults in the performance of any material term,
covenant, agreement or condition of this Agreement, and, if within
thirty calendar days after notice from TCBY describing the specific
activities or failures constituting such default, AF shall fail to
cure the default, or if such default cannot be cured with the exercise
of due diligence within a thirty calendar days period, shall fail
thereafter to proceed to cure the same diligently and in good faith,
and in any case, to cure such default within sixty calendar days;
provided, that notwithstanding the foregoing, during such cure periods
(1) TCBY shall have the right to cover defaults as specified in
Sections 2A and 2B and (2) TCBY may terminate this Agreement for a
continuing breach by AF of the License Agreement without regard to
notice or cure;
(iii) on more than three separate occasions in any
twelve-month period, (A) the same quality violation or nonconformity
has occurred under Section 2B and (B) on each occasion, TCBY has
delivered a Quality Notice to AF describing the same quality violation
or nonconformity, whether or not AF has cured such quality violation
or nonconformity within the specified cure period;
(iv) in the event of any substantial continuing negative
publicity in a reputable national media publication or news service
concerning the quality of the Licensed Products produced by AF, which
publicity (A) reports a material quality violation or material
nonconformity related to contamination of such Licensed Products or
that materially threatens the health and safety of consumers of such
Licensed Products, which material quality violation or material
nonconformity actually has occurred under Section 2B; and (B) which
material quality violation or material nonconformity the Board of
Directors of TCBY by written resolution reasonably has deemed to have
a material adverse effect upon the reputation of TCBY and/or AF or to
materially threaten TCBY's ability to maintain and preserve its
business; or
(v) by mutual written agreement of the Parties.
B. AF, at its option, shall have the right by notice to TCBY, in
addition to any other remedy available at law or in equity, to terminate
this Agreement, upon the occurrence of any one or more of the following
events:
(i) if TCBY defaults in the performance of any material
term, covenant, agreement or condition of this Agreement, and, if
within thirty calendar days after notice from AF describing the
specific activities or failures constituting such default, TCBY shall
fail to cure the default, or if such default cannot be cured with the
exercise of due diligence within a thirty calendar day period, shall
fail thereafter to proceed to cure the same diligently and in good
faith and in any case, to cure such default within sixty calendar
days; or
(ii) by mutual written agreement of the Parties.
5. Non-Exclusive Trademark License. The License Agreement, and all
the terms and conditions thereof, are hereby incorporated herein as if fully set
forth herein.
6. TCBY Licensed Products. For the avoidance of doubt, the Parties
hereby agree that the term "Licensed Products" as used in this Agreement shall
not include any Products other than the TCBY-branded Products listed on
Schedule I hereto. The Parties acknowledge that TCBY may obtain its requirements
of, and AF may produce, other Products, including, without limitation,
production of Mrs. Fields-branded Products and other TCBY-branded Products,
pursuant to other agreements.
7. Change of Control. AF shall provide written notice to TCBY (in
accordance with Section 10) at least thirty calendar days prior to any Change of
Control (as defined below). Upon receipt of such notice, TCBY shall have ten
business days to approve such Change of Control, which approval shall not be
unreasonably withheld. If TCBY provides written notice to AF that it reasonably
withholds its approval of such Change of Control, which written notice must set
forth such reasons, and such Change of Control actually is consummated, then
TCBY shall have the right to terminate this Agreement 180 calendar days
following the date of the consummation of such Change of Control. As used in
this Section 7, "Change of Control" shall mean the replacement of the general
partner of AF with a person who is not controlled by an affiliate of Capricorn
Investors III, L.P. or Herbert S. Winokur, Jr.
8. Assignment. Neither Party shall voluntarily or involuntarily,
directly or indirectly, sell, assign, hypothecate, pledge or otherwise transfer
or dispose of all or any portion of its interest in this Agreement to any third
party without the prior written consent of the other Party.
9. Amendment. This Agreement may be amended from time to time only
by a writing executed by AF and TCBY.
10. Notices. All notices, requests, demands, and other
communications hereunder by which either party is to be legally bound shall be
in writing and shall be given (i) by Federal Express (or other established
express delivery service which maintains delivery records), (ii) by hand
delivery, (iii) or by facsimile transmission, to the Parties at addresses set
forth on the signature page to this Agreement or at such other address give by
like notice. Notices shall be deemed effective upon dispatch.
11. Entire Agreement. This Agreement and the License Agreement
constitute the entire agreement between the Parties with respect to the subject
matter hereof, and supersede all prior agreements and negotiations between the
Parties with respect thereto.
12. Governing Law. This Agreement shall be enforced, governed by
and construed in accordance with the laws of the State of New York without
application of choice of law principles.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
TCBY SYSTEMS, LLC
By: /s/ Michael R. Ward
Name: Michael R. Ward
Title: Senior Vice President
Address:
2855 East Cottonwood Parkway, Suite 400
Salt Lake City, Utah 84121-7050
Attention: General Counsel
Fax: (801) 736- 5944
AMERICANA FOODS LIMITED PARTNERSHIP
By: AF Sub Corp., as its General Partner
By: /s/ Dudley C. Mecum
Name: Dudley C. Mecum
Title: President
Address:
3333 Dan Morton
Dallas, Texas 75236
Attention: President
Fax: (972) 709-6625
with copy to:
AF Sub Corp. and Americana Foods Corp.
c/o Capricorn Investors III, L.P.
30 East Elm Street
Greenwich, Connecticut 06830
Attention: Herbert S. Winokur, Jr.; Dudley C. Mecum
Fax: (203) 861-6671
Schedule I
[CONFIDENTIAL]2
2 Confidential treatment has been requested for the redacted portion. The
confidential, redacted portions have been filed separately with the SEC.
Schedule II
[CONFIDENTIAL]3
3 Confidential treatment has been requested for the redacted portion. The
confidential, redacted portions have been filed separately with the SEC.
QuickLinks
Exhibit 10.50
EXCLUSIVE SUPPLY AGREEMENT
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