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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
{X} Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 for the fiscal year ended December 30, 1995
OR
| | Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
0-15942
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(Commission File No.)
INTEGRATED BRANDS INC.
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(Exact name of registrant as specified in its charter)
New Jersey 11-2778439
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4175 Veterans Highway, Ronkonkoma, New York 11779
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(Address of principal executive offices including zip code)
Registrant's Telephone Number, including area code: (516) 737-9700
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Class A Common Stock, par value $0.01 per share
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Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes __X__ No _____
The aggregate market value of the registrant's Common Stock held by
non-affiliates as of March 15, 1996 was $8,052,000.
As of March 15, 1996, there were 10,203,288 shares of the registrant's Common
Stock outstanding.
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INDEX OF EXHIBITS
EXHIBIT DESCRIPTION PAGE
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10.31* License Agreement
dated August 15, 1995
between General Mills, Inc.
and the Company
10.32* License Agreement
dated August 15, 1995
between General Mills, Inc.
and the Company
10.33* License Agreement
dated August 15, 1995
between General Mills, Inc.
and the Company
10.34* License Agreement
dated August 15, 1995
between General Mills, Inc.
and the Company
10.35 Asset Purchase Agreement
dated August 15, 1995
between General Mills, Inc.
and the Company
10.36 Second Amendment
dated March 8, 1996
to Credit Agreement
with Chemical Bank
22.1 List of the Company's
Subsidiaries
23 Consent of BDO Seidman LLP
27 Schedule of Financial Data
* Pursuant to Rule 24B-2 promulgated under the Securities and Exchange Act of
1934, as amended, confidential treatment has been requested for certain
portions of these agreements. Such confidential information has been
(i) omitted from these agreements, (ii) marked with asterisks (**) and
(iii) filed separately with the Securities and Exchange Commission.
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EXHIBIT 10.31
PURSUANT TO RULE 24B-2 PROMULGATED UNDER THE SECURITIES AND EXCHANGE ACT OF
1934, AS AMENDED, CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS
OF THIS AGREEMENT. SUCH CONFIDENTIAL INFORMATION HAS BEEN (I) OMITTED FROM THIS
VERSION OF THE AGREEMENT, (II) MARKED WITH ASTERISKS (**) AND (III) FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
THE COLOMBO LICENSE AGREEMENT
THIS AGREEMENT made as of the 15th day of August, 1995 by and between
General Mills, Inc. and General Mills Products Corp., Delaware corporations,
having a place of business at Number One General Mills Boulevard, Minneapolis,
Minnesota 55426, hereinafter individually and collectively referred to as
"Licensor", and Integrated Brands Inc., a New Jersey corporation having a place
of business at 4175 Veterans Highway, Ronkonkoma, New York 11779, hereinafter
referred to as "Licensee."
WHEREAS, Licensor is the owner of the trademark COLOMBO alone and in
connection with a strawberry design and the words SHOPPE STYLE and SLENDER
SCOOPS (hereinafter collectively and/or individually referred to as "Trademark")
in connection with frozen yogurt and other items, and
WHEREAS, Licensor is the owner of certain manufacturing processes and
formulas for use in connection with the manufacture of prepackaged hard pack
frozen yogurt (hereinafter referred to as "Formula"); and
WHEREAS, Licensee desires a license from Licensor to use the Trademark
and the Formula solely in connection with the development, manufacture, contract
manufacture, marketing, sale and distribution of "Articles", defined to mean all
prepackaged frozen products containing at least thirty-five percent (35%) by
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volume frozen yogurt, ice cream, ice milk, sherbet, sorbet, frozen fruit, water
ice or other frozen items which would be considered substitutes for the
foregoing frozen items/ingredients, dairy or non-dairy, naturally or
artificially sweetened, sold in any prepackaged container size or form.
("Prepackaged" is defined to mean packaged by the manufacturer off the premises
from which finished goods are sold at retail to consumers). Examples of Articles
include, but are not limited to, (i) retail prepackaged goods, such as gallons,
half gallons, quarts, pints and half pints; (ii) bulk, such as three (3) gallon,
two and one half (2 1/2) gallon and one and one half (1 1/2) gallon prepackaged
containers; (iii) prepackaged novelties such as pops, bars, sandwiches, cups,
cones, parfaits, push-ups, nuggets and shakes; and (iv) prepackaged finished
prepared frozen dessert specialties such as ice cream cakes and pies, cake
rolls, jimmy rolls, nut rolls and brownie sundaes. "Articles" always excludes
all machine dispensed frozen yogurt, machine dispensed ice cream and other items
which are machine dispensed. ("Machine dispensed" is defined to mean unpackaged
food items dispensed from a machine into a cone, cup, container or other
package, edible or not, on the premises from which finished goods are sold
directly to the consumer, and would not include prepackaged items dispensed from
a vending machine).
NOW, THEREFORE, in consideration of the mutual promises
herein contained, it is hereby agreed as follows:
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1. Grant of License
a. Articles: Upon the terms and conditions hereinafter set forth,
Licensor hereby grants to Licensee and Licensee hereby accepts the exclusive
right, license and privilege of utilizing the Trademark and the Formula solely
in connection with the development, manufacture, contract manufacture,
marketing, sale and distribution of Articles; provided however, Licensee is not
authorized to use the Trademark in connection with any Articles distributed as
premiums or otherwise to be used as aids in the advertisement or promotion of
any products or business of others (other than the sale of Articles). Subject to
Licensor's prior written approval, not to be unreasonably withheld, Licensee
shall have the right to have third parties manufacture such Articles for
Licensee so long as such third Parties agree in writing to comply with the
quality control provisions and other provisions relevant to such third party set
forth in this Agreement. Any third party manufacturer not disapproved by
Licensor within fifteen (15) business days after receipt by Licensor of
Licensee's written request for such approval shall be deemed approved pursuant
to this paragraph. Licensor acknowledges that Licensee may elect to have
Articles manufactured by third parties who are also retailers of the Articles,
and that the Articles may be manufactured by and sold to some or all of such
third party manufacturer/retailer without Licensee taking actual physical
possession of such Articles.
b. Formula: The Formula licensed herein shall be limited to that
appearing in the attached Schedule A. Subject to the terms of this Agreement,
Licensee shall have the right to make adjustments to the Formula (which shall be
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the property of Licensor after expiration or termination of this Agreement) or
develop its own formulas (which shall remain the property of Licensee after
expiration or termination of this Agreement). The Formula may only be used in
connection with Articles using the Trademark.
c. Exclusivity: Subject to the terms of this Agreement, Licensor agrees
that it will not use or license to anyone else the right to use the Trademark
in the Territory, in connection with the Articles.
d. Reservation: Notwithstanding paragraphs (a) and (c) above:
(i) Licensor reserves to itself a non-exclusive right,
and it is understood that Licensee shall have a
non-exclusive right, to use the Trademark in
connection with the Articles solely for sale into
food service distribution channels. "Food service
distribution channels", in which it is understood
that Licensor shall have a right to use the
Trademark in connection with the Articles include,
but are not limited to, airport/train/bus snack
shops, restaurants (including luncheonettes),
vending, cafeterias, colleges and universities,
secondary and elementary schools, stadiums,
amusement parks, park and recreation areas,
airlines, cruise ships, health care facilities,
and hospitals. "Food service distribution
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channels" shall not include convenience stores,
delicatessens, stand alone carts, fruit stores,
bodegas, milk stores, dairy stores, gourmet shops,
health food stores, superettes, grocery stores, club
stores, box stores, candy stores, hypermarkets and
supermarkets, it being understood that such
identified businesses shall be included in the area
of exclusivity granted herein; provided, however,
that convenience stores, delicatessens and milk
stores shall be considered food service distribution
channels solely as to the sale of single serve cups
five (5) ounces or less in size and bulk tubs for
"hand-dipping," but only if these businesses also
sell machine dispensed items under one of Licensor's
Trademarks. Licensor shall purchase its requirements
of Articles using the Trademark for sale in food
service distribution channels from Licensee (x) at
Licensee's cost (including ingredients, packaging,
processing, warehousing, storage, handling and other
direct costs), plus ten percent (10%), plus freight,
for the first two million dollars ($2,000,000) in
sales by Licensee to Licensor of Articles using the
Trademark in any year of this Agreement, and (y) at
Licensee's lowest wholesale price after such sales
have reached two million dollars ($2,000,000) in any
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year of this Agreement. Licensor shall provide to
Licensee with reasonable advance notice its estimated
monthly and annual projected requirements of the
Articles. Should Licensee be unable to supply
Licensor with Licensor's requirements of the
Articles, Licensor shall be free to purchase such
quantities of the Articles as Licensee is unable to
supply from another supplier until such time as
Licensee is able to supply Licensor's requirements of
the Articles.
(ii) It is also understood Licensor reserves to itself
the exclusive right to use and license to others
the right to use the Trademark in connection with
any products and/or services not included within
the definition of Articles, including but not
limited to, (v) machine dispensed frozen yogurt,
(w) machine dispensed ice cream (x) other machine
dispensed items, (y) bulk mixes for making machine
dispensed frozen yogurt, machine dispensed ice
cream and other machine dispensed items, and (z)
any refrigerated products, including refrigerated
products of similar or same description as the
Articles (but not frozen). Also, Licensor reserves
the exclusive right to allow retailers (including
Licensor) to pack in retail premises excess
machine dispensed frozen yogurt, machine dispensed
ice cream and other items which are machine
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dispensed in appropriately labeled containers using
the Trademark for retail sale to consumers from the
premises on which such products were machine
dispensed.
(iii) In addition, Licensor reserves to itself the
right to use or license to others to use the
Trademark as the name of a retail business of
any type which sells frozen yogurt, ice cream
or frozen novelties including but not limited
to restaurants, ice cream counters and carts
and frozen yogurt counters and carts;
provided, however, this provision shall not
preclude Licensee from selling Articles using
the Trademark to such businesses should such
businesses desire to sell said Articles.
e. Territory: This Agreement is limited to the United
States, its territories and
possessions (including Puerto Rico) and Canada.
2. License Fee and Royalty
a. Rate: Licensee agrees to pay to Licensor a royalty of ________** on
Licensee's Gross Revenues of Articles sold by Licensee using the Trademark;
provided, however, no royalty shall be due on (i) Licensee's Gross Revenues of
Articles sold by Licensee using the Trademark during the first twelve (12)
months of this Agreement, and (ii) Articles sold to Licensor using the
Trademark so long as said Articles are sold to Licensor at Licensee's cost
(including ingredients, packaging, processing, warehousing, storage, handling
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and other direct costs), plus ten percent (10%), plus freight, or at Licensee's
lowest wholesale price. In connection with any Articles sold and/or distributed
by Licensee to a related company of Licensee at a price lower than the price
otherwise charged to the trade, the royalty payable herein shall be based on
what the Gross Revenues of the sales of the Articles would have been if the
company was not related to Licensee. As used herein "Gross Revenues" means the
gross sales price invoiced by Licensee to purchasers of the Articles minus any
credits or allowances given as a result of the return or destruction of such
Articles, any off-invoice allowances (but not promotional billback allowances),
and any applicable sales or use taxes. For all purposes of this Agreement, the
royalty shall accrue on the sale of the Articles and the Articles shall be
considered sold when shipped or billed out, whichever occurs earlier.
b. Royalty Payments and Records: Licensee agrees to keep full, accurate
and complete books of account, and other records in sufficient detail so that
the royalty payable hereunder may be ascertained properly. Within thirty (30)
days after the end of each of Licensor's fiscal quarters which commence June 1,
September 1, December 1 and March 1, Licensee shall furnish to Licensor complete
and accurate statements of sales of Articles using the Trademark during such
previous fiscal quarter certified to be accurate by the chief financial or
accounting officer of Licensee showing the number, description, Gross Revenues
of such Articles and permitted deductions therefrom. Such statements
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shall be furnished to Licensor whether or not any of the Articles utilizing the
Trademark have been sold during the proceeding quarter and whether or not a
royalty is due. Each such report shall be accompanied by a check for the amount
of the royalty payments due with respect to the period covered by such report.
The receipt or acceptance by Licensor of any of the statements furnished
pursuant to this Agreement or of any royalties paid hereunder (or the cashing of
any royalty checks paid hereunder) shall not preclude Licensor from questioning
the correctness thereof at any time, and in the event that inconsistencies or
mistakes are discovered in such statements or payments, they shall be rectified
and the appropriate payments made by Licensee upon demand by Licensor. Any
royalty payments, including accrued royalties, and audit findings, not paid when
due shall be paid immediately upon demand and shall bear interest at an annual
rate of two percent (2%) over the rate of interest publicly announced by
Citibank, N.A. in New York as its base rate in effect as of the date of which
such overdue royalty amount should have been paid to Licensor.
Licensee agrees, upon request by Licensor, to permit Licensor or its
authorized representative to have access to such books or records as may be
necessary to determine the royalty in respect to any accounting period covered
by this Agreement and obtain any information as to the amount payable in case of
failure to report. Such audits shall be at the expense of Licensor unless they
show that Licensee has understated the royalties by five percent (5%) or more or
Five Thousand Dollars ($5,000) (whichever is greater) for any quarter, in which
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case Licensee shall reimburse Licensor for its out-of-pocket expenses
incurred in connection with the audit as well as pay to Licensor
the required amount of additional royalties. All books of account
and records shall be kept available by Licensee for at least two
(2) years after the submission of the relevant statement.
3. Licensor's Authorized Representative
Wherever Licensee is directed to furnish or supply to or otherwise take
some action or perform some obligation in respect of Licensor in this Agreement,
the term "Licensor" shall be deemed to include "or Licensor's authorized
representative", unless written advice to the contrary is received from
Licensor.
4. Goodwill, etc.
a. Licensee recognizes the great value of the goodwill associated with
the Trademark and acknowledges that the Trademark and all rights therein and the
goodwill pertaining thereto belong exclusively to Licensor. Licensee agrees not
to contest Licensor's rights in the Trademark or perform any material act or
omission adverse to said rights.
b. Licensee hereby agrees that its every use of the Trademark shall
inure to the benefit of Licensor, and that Licensee shall not at any time
acquire any rights in the Trademark by virtue of any use it may make of the
Trademark, other than the licensed rights granted herein.
c. Subject to being reimbursed for its out-of-pocket
expenses, Licensee agrees to cooperate fully and in good faith
with Licensor for the purpose of securing, preserving and
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protecting Licensor's rights or any grantor of Licensor's rights
in and to the Trademark.
d. Licensee agrees that it will use the Trademark only on the specific
Articles herein licensed, and that it will not adopt or use as its own a
trademark the same or similar to the Trademark.
e. Licensor shall have the right, but shall not be under any
obligation, to use the Trademark and/or the name of Licensee so as to give the
Trademark, Licensee, Licensor and/or Licensor's products full and favorable
prominence and publicity. Licensor shall not be under any obligation whatsoever
to continue using the Trademark in connection with its products or services.
f. Licensee acknowledges that its failure (except as otherwise provided
herein) to cease the manufacture, sale or distribution of Articles utilizing the
Trademark covered by this Agreement on the termination or expiration of this
Agreement will result in immediate and irremediable damage to Licensor and to
the rights of any subsequent licensee. Licensee acknowledges and admits that
there is no adequate remedy at law for such failure to cease the manufacture,
sale or distribution, and Licensee agrees that in the event of such failure,
Licensor shall be entitled to equitable relief by way of temporary and permanent
injunctions and such other and further relief as any court with jurisdiction may
deem just and proper.
g. Licensee shall report to Licensor in writing any infringement or
imitation of the Trademark it becomes aware of on Articles. Licensor shall have
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the sole right to determine whether to institute litigation upon any such
infringements as well as the sole right to select counsel. In the event Licensor
decides to institute such litigation, Licensor shall offer Licensee an
opportunity to voluntarily join in any such action. In the event that Licensee
voluntarily joins in any such action, the expenses and any damages awarded as a
result of a lawsuit or settlement reached as a result of a lawsuit shall be
split fifty/fifty (50/50) by the parties after the out-of-pocket expenses have
been reimbursed. In the event that Licensee chooses not to voluntarily join in
any such action, Licensor shall be free to join Licensee as a party thereto and
Licensee agrees to cooperate with Licensor in any such suit subject to being
reimbursed for its out-of-pocket expenses. If Licensee does not join the suit
voluntarily, all expenses shall be borne by Licensor and, all recoveries and
awards shall be fully retained by Licensor. If Licensor decides not to institute
such litigation, it may authorize, within its sole discretion, Licensee to
institute such litigation in which event Licensee shall be solely responsible
for the costs of such litigation and shall be entitled to keep any recoveries
therefrom.
5. Indemnification and Product Liability Insurance
a. Except with respect to any Inventory purchased from Licensor as set
forth in the Asset Purchase Agreement between the parties of even date herewith,
Licensee hereby indemnifies Licensor and undertakes to defend Licensee and/or
Licensor against and hold Licensor harmless from any claims, suits, damages,
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out-of-pocket expenses (including legal fees and out-of-pocket expenses) and
losses arising from the activities of Licensee under this Agreement (other than
the use of the Trademark and Formula as authorized herein), including, but not
limited to, the unauthorized use of any patent, process, idea, method or device
by Licensee in connection with the Articles covered by this Agreement. Licensee
agrees that it will obtain and maintain throughout the term of this Agreement,
at its own expense, liability insurance including product liability with a broad
form vendors endorsement from an insurance company reasonably acceptable to
Licensor providing adequate protection (at least in the amount of Ten Million
Dollars ($10,000,000)) against any claims, suits, damages, expenses or losses
arising out of Licensee's operations pursuant to this Agreement. Such insurance
shall include coverage of Licensor and its directors, officers, agents,
employees, assignees and successors. As proof of such insurance, a certificate
of insurance naming Licensor as an additional insured party will be submitted to
Licensor by Licensee for prior approval before any Articles using the Trademark
are distributed or sold, and at the latest within thirty (30) days after the
date first written above. Licensor shall be entitled to a copy of the prevailing
certificate(s) of insurance which shall be furnished to Licensor by Licensee.
Licensee and its insurer shall provide Licensor with thirty (30) days advance
notice in the event of the cancellation of said insurance.
b. Licensor hereby indemnifies Licensee and undertakes to defend
Licensee and hold Licensee harmless from any trademark or patent infringement
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claims, suits, damages, out-of-pocket expenses (including legal fees and
out-of-pocket expenses) and losses arising solely out of Licensee's use of the
COLOMBO Trademark or the Formula approved under the terms of this Agreement, but
only in connection with those Articles using the COLOMBO Trademark and the
Formula which Licensor was selling prior to the date of this Agreement.
6. Quality of Merchandise
a. Licensee agrees that the Articles covered by this Agreement shall be
of high standard and of such style, appearance and quality as to be adequate and
suited to their advantageous exploitation and to the protection and enhancement
of the Trademark and the goodwill pertaining thereto; that the Articles will be
manufactured, sold and distributed in accordance with all applicable Federal,
State and local laws, and that the policy of sale, distribution, and/or
exploitation by Licensee shall be advantageous and of high standard and that the
same shall in no manner reflect adversely upon the good name of Licensor or any
of its activities or the Trademark. To this end, Licensee shall, before selling
or distributing any Articles covered by this Agreement, furnish to Licensor,
free of cost for its written approval, a reasonable number of samples of each of
the Articles. The quality and style of such Articles shall be subject to the
approval of Licensor, which approval shall not be unreasonably withheld or
delayed. At the request of Licensor, Licensee shall supply to Licensor any
manufacturing information requested by Licensor to help Licensor in evaluating
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the quality and style of such Articles. Any Articles submitted to Licensor and
not disapproved by Licensor within fifteen (15) business days of its receipt by
Licensor shall be deemed to have been approved pursuant to this paragraph.
Licensee warrants that the Articles manufactured, distributed and sold by
Licensee, if applicable, and its contract packers and the manufacturing and
sanitation practices used by Licensee, if applicable, and its contract packers
to produce the Articles will comply with all applicable Federal, State and local
laws, including, but not limited to, manufacturing codes and that Licensee will
not manufacture the Articles from inherently dangerous materials or substances
and will not design the Articles so as to constitute any inherent danger. After
samples of the Articles have been approved pursuant to this paragraph, Licensee
shall not depart therefrom in any material respect without Licensor's prior
written consent, and Licensor shall not withdraw its approval of the approved
Articles or any approved plant except for good cause when Licensor may in good
faith have reason to believe that the approved Articles or manufacture of
Articles by the approved plant may be detrimental to the health or safety of the
public. Licensor acknowledges that (i) the plants operated as of the date of
this Agreement by ________________________________** are acceptable to Licensor
as of the date of this Agreement, and (ii) the Articles using the Trademark
being manufactured by ________________________________** as of the date of this
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Agreement meet the specified approved standards for quality and style set forth
herein. From time to time after Licensee has commenced selling the Articles and
upon Licensor's written request, Licensee shall furnish, without cost to
Licensor, the requested reasonable amount of samples of the Articles being
manufactured and sold by Licensee hereunder. Also, Licensor, through such agents
or representatives as it may designate, shall have access to Licensee's
facilities and the facilities of Licensee's contract manufacturers where the
Articles are manufactured, at reasonable times and with reasonable advance
notice given during normal business hours, for the purpose of inspecting the
Articles to the extent necessary to determine whether Licensor's quality
standards are being met.
b. Subject to the terms of this Agreement, Licensor acknowledges that
Licensee shall have the right to make adjustments to the formulas for the
Articles and to develop and market new Articles using the Trademark. Except as
set forth herein, Licensee's formulas for the Articles shall remain the property
of Licensee after expiration or termination of this Agreement.
c. Licensee shall have the sole responsibility with
respect to the Articles for taking action, maintaining records or
handling recalls and all costs associated therewith under the
Consumer Products Safety Act, the Federal Food, Drug and Cosmetic
Act or any other similar acts, orders or directives.
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7. Labeling, Promotion, Advertising and Use
a. Licensee shall submit to Licensor for its prior written approval,
all new proposed tags, labels, containers, packaging, advertising, promotional
or display materials or the like containing or referring to the Trademark which
approval shall not be unreasonably withheld or delayed. Any item submitted to
Licensor and not disapproved by Licensor within ten (10) business days of its
receipt by Licensor shall be deemed to have been approved pursuant to this
paragraph. Licensor acknowledges that the items referred to in this paragraph
above which Licensor currently uses with Articles using the Trademark are
acceptable to Licensor.
b. Licensee agrees that it will apply the proper reasonable notations,
as specified by Licensor, relating to the ownership of the Trademark on all
tags, labels, containers, packaging, advertising, promotional or display
materials or the like containing or referring to the Trademark.
c. Licensee warrants that all tags, labels, containers, packaging,
advertising, promotional or display materials or the like containing the
Trademark will comply with all applicable Federal, State and local laws.
d. Licensee may use another brand name or trademark on the
Articles in connection with the Trademark subject to the approval
of Licensor as set forth in paragraph 7 (a) hereof. Such other
brand names or trademarks shall remain the property of Licensee
after the expiration or termination of this Agreement, unless
previously owned by Licensor.
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8. Term and Termination
a. The term of this Agreement shall commence on the date first written
above and shall end on December 31, 2015, unless sooner terminated in accordance
herewith.
b. If this Agreement has not been otherwise terminated, Licensee shall
have an option to extend this Agreement until December 31, 2020 by giving
written notice thereof to Licensor by September 30, 2015, provided that Licensee
pays Licensor the sum of _______________** by December 31, 2001. This payment is
independent of any royalties which may be due Licensor hereunder. If, however,
the sublicense agreement between Licensor and Licensee relating to the YOPLAIT
trademark is terminated in year 2002, Licensee shall only be required to pay
Licensor ________________________________** independent of any royalties owed in
order to extend this Agreement. Should the YOPLAIT Trademark Sublicense
Agreement be terminated in year 2015, then Licensee shall be only required to
pay Licensor ________________________** independent of any royalties owed in
order to extend this Agreement. In the event Licensee does not furnish written
notice of extension to Licensor by September 30, 2015, Licensor shall notify
Licensee that this Agreement shall terminate on December 31, 2015, unless
Licensee provides Licensor with written notice of its intention to extend within
fifteen (15) business days after Licensee's receipt of such written notice. In
the event Licensor does not furnish such written notice to Licensee before
December 12, 2015, this Agreement shall continue in effect after December 31,
2015 until such time as Licensor shall notify Licensee that this Agreement shall
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terminate, unless Licensee provides Licensor with written notice of its
intention to extend within fifteen (15) business days after Licensee's receipt
of such notification, along with payment in full of the amount due, plus
interest on such amount at the rate specified in paragraph 2b in effect as of
December 31, 2015, with such interest accruing from and after that date.
c. [Redacted]
d. If for any twelve (12) month period Licensee is not engaged in
manufacturing or selling any Articles using the Trademark in either the United
States or Canada, Licensor shall have the right to terminate this Agreement as
to that part of the Territory (United States or Canada) by giving Licensee
written notice to that effect. Provided, as to Canada, Licensor shall not have
the right to terminate unless Licensor, directly or through a licensee, intends
to engage in the sale of Articles using the Trademark within six (6) months in
Canada. Licensee shall have two (2) months from the date of receipt of the
written notice to commence the manufacturing or selling of any Articles using
the Trademark, and in the absence of which, this Agreement shall automatically
terminate at the end of said two (2) month period as to that part of the
Territory, provided, however, as to Canada, this Agreement shall resume in full
force and effect if Licensor, or its licensee, does not commence selling
Articles using the Trademark in Canada, within six (6) months of such
termination. Licensee agrees to give Licensor prompt written notice of its
intention to discontinue marketing Articles under the Trademark.
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e. Licensor may terminate this Agreement if Licensee shall be in
material default of any obligation to Licensor hereunder, including, but not
limited to, obligations set forth in paragraphs 2, 4, 5, 6, 7, 9 or 13, by
giving written notice to Licensee calling attention to such default, specifying
the nature thereof and the action required to correct the default and stating
that this Agreement will terminate at the expiration of thirty (30) days, when
such default arises under paragraph 2 hereof, and forty-five (45) days for any
other default, from the date of the receipt by Licensee of such notice, unless
Licensee shall cure such default within said thirty (30) or forty-five (45) day
period, as applicable, after the receipt of such notice, or if such default
cannot be cured within said thirty (30) or forty-five (45) day period, as
applicable, of the receipt of such notice, Licensee, exercising due diligence,
has commenced taking the steps necessary to prevent the recurrence of such
default and is diligently pursuing such steps. Failure of Licensor 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 such default or
breach, either of the same or different character.
f. The license hereby granted shall automatically terminate forthwith
without any notice whatsoever being necessary if Licensee discontinues its
business or Licensee 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 license is so terminated, Licensee, its receivers,
<PAGE>
representatives, trustees, agents, administrators, successors and/or assigns
shall have no right to sell, exploit or in any way deal with or in any Articles
covered by this Agreement, or any carton, container, packaging or wrapping
material, advertising, promotional or display materials pertaining thereto,
except with and under the special consent and instruction of Licensor in
writing, which they shall be obligated to follow. Should Licensee file a
petition in bankruptcy or is otherwise adjudicated a bankrupt or if a petition
in bankruptcy is filed against Licensee and the Articles are attached and such
petition is not discharged or dismissed or if an involuntary receiver is
appointed for it or its business within ninety (90) days thereafter, this
Agreement shall automatically terminate, in each case, if and when, but only if,
a bankruptcy or other court of appropriate jurisdiction assigns, sells or
otherwise causes this Agreement to be transferred to 1) a business which is a
material competitor to any of General Mills' businesses or 2) a business which
derives a material portion of its revenues from tobacco, alcoholic beverages, or
from pornography or other explicit sexually related material, or which has been
convicted of a felony or whose chief executive, financial or operating officer
in his or her role as an officer of the company has been convicted of a felony,
or which does not comply with Licensor's advertising standards as set forth in
the attached Schedule.
g. Termination of this Agreement for any reason shall not
release either party from any part of any obligation accrued
<PAGE>
prior to the date of such termination, or obligations continuing beyond
termination of this Agreement.
h. Termination of this Agreement for any reason shall be
without prejudice to any rights which either party may otherwise
have against each other.
i. Upon expiration or termination of this Agreement for any reason
other than failure to comply with the requirements of paragraphs 8(f) hereof,
Licensee shall have a period of three hundred sixty five (365) days after the
date of termination in which to phase out its use of the Formula and the
Trademark provided all Articles to be sold, and all uses of the Trademark, by
Licensee during such three hundred sixty-five (365) day period are in compliance
with the requirements of paragraphs 6 and 7 hereof. Licensee shall report to
Licensor with respect to such sales and make the requisite royalty payment
within thirty (30) days after the end of each month during the aforesaid three
hundred sixty five (365) day period. All duties and obligations of the Licensee
under this Agreement shall remain in force during the sell-off period.
9. Distribution
a. Licensee agrees to exercise good faith reasonable
efforts in the performance of this Agreement.
b. Licensee agrees to sell and distribute the Articles
covered by this Agreement at a competitive price and not on an
approval or consignment basis to retail stores.
<PAGE>
c. Licensee agrees to keep Licensor informed on a regular
basis of Licensee's activities in manufacturing and marketing the
Articles covered by this Agreement.
10. Force Majeure
No failure or omission by Licensee in the performance of any
obligation of this Agreement shall be deemed a breach of this
Agreement nor create liability if the same shall arise from any
cause or causes beyond the reasonable control of Licensee.
11. Warranty and Consumer Response
Licensee will, at no cost to Licensor, handle all warrantee
(guarantee) satisfaction, response and compliance and all
consumer response relative to any of the Articles. Licensor
shall, at no cost to Licensee, promptly forward to Licensee, for
handling, any and all such consumer inquires that it receives.
Licensee shall use reasonable efforts to keep Licensor generally
informed of consumer complaints relative to the Articles.
12. No Joint Venture
Nothing herein contained shall be construed to place the
parties in the relationship of partners or joint venturers, and
neither party shall have the power to obligate or bind the other
in any manner whatsoever.
13. Assignment, Sublicense or Change of Control
a. This Agreement and all rights and duties hereunder are
personal to Licensee. Licensee may assign this Agreement to any
third party, provided such third party is not a major competitor
of Licensor.
<PAGE>
b. Licensor may assign this Agreement to any third party, provided that
such third party is also assigned all of Licensor's right, title and interest in
the Trademark as applied to Articles and Licensor shall furnish written notice
of such assignment to Licensee.
c. Except as provided below, any change in direct or indirect control
over Licensee or any assignee of rights of Licensee under this Agreement shall
not be subject to the prior written approval of Licensor. The term "assignee" in
the preceding sentence shall not include contract manufacturers. However, the
occurrence of any of the following events shall not be permitted:
(i) any major competitor of Licensor becomes the
beneficial owner, directly or indirectly, of a
majority of the issued and outstanding shares of
Licensee entitled to vote for the election of
directors;
(ii) the stockholders of Licensee approve an agreement
providing for a transaction in which Licensee will
cease to be an independent corporation and the
entity which will control it is a major competitor
of Licensor, or pursuant to which Licensee sells
or otherwise disposes of all or substantially all
of the assets of Licensee to a major competitor of
Licensor.
<PAGE>
14. Confidentiality
Both parties shall keep confidential and shall not cause or permit the
disclosure to any third party, other than those whose duties require possession
of such information, such as contract manufacturers and sublicensees, of any
confidential information disclosed by either party to the other pursuant to this
Agreement. Confidential information may include, but is not limited to,
formulas, production processes, research, marketing and sales information. Said
confidentiality requirement shall not apply to any information which (a) was in
the possession of a party on a non-confidential basis prior to the receipt of
any disclosure to it by the other party, or (b) is or becomes, without
disclosure by a party, part of the public knowledge or literature, or (c)
otherwise lawfully becomes available to a party, from sources other than the
other party, which sources did not acquire such information directly from the
party, or (d) counsel to the party advises must be disclosed pursuant to a court
order or by law or regulation.
15. Notices
All notices to be made hereunder shall be in writing sent via
certified, overnight or registered mail (return receipt requested). Any Articles
or materials submitted for approval under this Agreement shall not be governed
by the mailing type requirements of this Notice provision. Such notices and
statements shall be given to or made at the respective address 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 or statement is
actually received:
<PAGE>
To Licensor: To Licensee:
General Mills Products Corp. Integrated Brands, Inc.
Number One General Mills 4175 Veterans Highway
Boulevard Ronkonkoma, NY 11779
Minneapolis, MN 55426 Attn: Gary P. Stevens,
Attn: Trademark Counsel President
cc: General Counsel cc: Benjamin Raphan, Esq.
General Mills, Inc. Tenzer Greenblatt LLP
Number One General 405 Lexington Avenue
Mills Boulevard New York, NY 10174
Minneapolis, MN 55426
16. No Waiver. Etc.
None of the terms of this Agreement can be waived or
modified except by an express agreement in writing signed by both
parties. There are no representations, promises, warranties,
covenants or undertakings other than those contained in this
Agreement and in the other agreements between the parties which
represent the entire understanding of the parties.
17. Choice of Law
This Agreement shall be governed by and construed in
accordance with the internal laws (and not the law of conflicts)
of the State of Minnesota. The parties hereto agree to submit to
jurisdiction in the State of Minnesota, and further agree that
any court proceeding relating to any controversy arising under
this Agreement shall be in the federal court located in Hennepin
County in the State of Minnesota.
18. Submission of Agreement
This Agreement shall become effective only upon its execution by
Licensor and Licensee.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed as of the date and year first above written.
GENERAL MILLS, INC.
Dated: 8/15/95 By: /s/ Gary M. Rodkin
- --------------------- ----------------------------------
Senior Vice President
GENERAL MILLS PRODUCTS CORP.
Dated: 8/15/95 By: /s/ C.S. Bernhard
- --------------------- ----------------------------------
Corporate Secretary
INTEGRATED BRANDS INC.
Dated: 8/15/95 By: /s/ Richard E. Smith
- --------------------- ----------------------------------
Chairman & CEO
<PAGE>
EXHIBIT 10.32
PURSUANT TO RULE 24B-2 PROMULGATED UNDER THE SECURITIES AND EXCHANGE ACT OF
1934, AS AMENDED, CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS
OF THIS AGREEMENT. SUCH CONFIDENTIAL INFORMATION HAS BEEN (I) OMITTED FROM THIS
VERSION OF THE AGREEMENT, (II) MARKED WITH ASTERISKS (**) AND (III) FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
THE BETTY CROCKER LICENSE AGREEMENT
THIS AGREEMENT made as of the 15th day of August, 1995 by and
between General Mills, Inc., a Delaware corporation, having a place of business
at Number One General Mills Boulevard, Minneapolis, Minnesota 55426, hereinafter
referred to as "Licensor," and Integrated Brands Inc., a New Jersey corporation,
having a place of business at 4175 Veterans Highway, Ronkonkoma, New York 11779,
hereinafter referred to as "Licensee."
WHEREAS, Licensor is the owner of the trademark rights for the
words BETTY CROCKER by themselves and in combination with a red spoon,
hereinafter collectively and/or individually referred to as "Trademark"; and
WHEREAS, Licensor has registered said trademark for a wide variety
of goods and services associated with food, food preparation and homemaking,
including United States Registration Nos. 1,465,527 and 1,467,385 which cover
frozen confections; and
WHEREAS, Licensee desires a license from Licensor to use the
Trademark solely in connection with the development, manufacture, contract
manufacture, marketing, sale and distribution of "Articles," defined to mean all
prepackaged frozen products containing at least thirty-five percent (35%) by
volume frozen yogurt, ice cream, ice milk, sherbet, sorbet, frozen fruit, water
ice or other frozen items which would be considered substitutes for the
<PAGE>
foregoing frozen items/ingredients, dairy or non-dairy, naturally or
artificially sweetened, sold in any prepackaged container size or form.
("Prepackaged" is defined to mean packaged by the manufacturer off the premises
from which finished goods are sold at retail to consumers). Examples of Articles
include, but are not limited to (i) retail prepackaged goods, such as gallons,
half gallons, quarts, pints and half pints; (ii) bulk, such as three (3) gallon,
two and one half (2 l/2) gallon and one and one half (l l/2) gallon prepackaged
containers; (iii) prepackaged novelties such as pops, bars, sandwiches, cups,
cones, parfaits, push-ups, nuggets and shakes, but not including novelty items
sold on a stick of any form unless specifically agreed to by Licensor; and (iv)
prepackaged finished prepared frozen dessert specialties such as ice cream cakes
and pies, cake rolls, jimmy rolls, nut rolls and brownie sundaes. "Articles"
always excludes all machine dispensed frozen yogurt, machine dispensed ice cream
and other items which are machine dispensed. ("Machine dispensed" is defined to
mean unpackaged food items dispensed from a machine on the premises from which
finished goods are sold directly to the consumer, and would not include
prepackaged items dispensed from a vending machine).
NOW, THEREFORE, in consideration of the mutual promises herein
contained, it is hereby agreed as follows:
<PAGE>
1. Grant of License
a. Articles: Upon the terms and conditions hereinafter set
forth, Licensor hereby grants to Licensee and Licensee hereby accepts the
exclusive right, license and privilege of utilizing the Trademark solely in
connection with the development, manufacture, contract manufacture, marketing,
sale and distribution of Articles; provided however, that Licensee is not
authorized to use the Trademark in connection with any Articles distributed as
premiums or otherwise to be used as aids in the advertisement or promotion of
any products or business of others (other than the sale of Articles). Subject to
Licensor's prior written approval, not to be unreasonably withheld, Licensee
shall have the right to have third parties manufacture such Articles for
Licensee so long as such third parties agree in writing to comply with the
quality control provisions and any other provisions relevant to such third party
set forth in this Agreement. Any third party manufacturer not disapproved by
Licensor within fifteen (15) business days after receipt by Licensor of
Licensee's written request for such approval shall be deemed approved pursuant
to this paragraph. Licensor acknowledges that Licensee may elect to have
Articles manufactured by third parties who are also retailers of the Articles,
and that the Articles may be manufactured by and sold to some or all of such
third party manufacturer/retailers without Licensee taking actual physical
possession of such Articles.
<PAGE>
b. Exclusivity: Subject to the terms of this Agreement,
Licensor agrees that it will not use or license to anyone else the right to use
the Trademark in the Territory, in connection with the Articles.
c. Reservation: Notwithstanding paragraphs (a) and
(b) above:
(i) It is understood Licensor reserves to itself
the right to use and license to others the
right to use the Trademark in connection with
any products and/or services not included
within the definition of Articles, including,
but not limited to, (v) machine dispensed
frozen yogurt, (w) machine dispensed ice
cream, (x) other machine dispensed items, (y)
bulk mixes for making machine dispensed
frozen yogurt, machine dispensed ice cream
and other machine dispensed items, and (z)
any refrigerated products, including
refrigerated products of similar or the same
description as the Articles (but not frozen).
Also, Licensor reserves the right to allow
retailers (including Licensor) to pack in
retail premises excess machine dispensed
frozen yogurt, machine dispensed ice cream
and other items which are machine dispensed
<PAGE>
in appropriately labeled containers using
the Trademark for retail sale to consumers
from the premises on which such products
were machine dispensed.
(ii) In addition, Licensor reserves to itself the
right to use or license to others to use the
Trademark as the name of a retail business of
any type which sells frozen yogurt, ice cream
or frozen novelties including but not limited
to restaurants, ice cream counters and carts
and frozen yogurt counters and carts;
provided, however, this provision shall not
preclude Licensee from selling Articles using
the Trademark to such businesses should such
businesses desire to sell said Articles.
d. Territory: This Agreement is limited to the United States,
its territories and possessions (including Puerto Rico) and Canada.
2. Royalty
a. Rate: Licensee agrees to pay to Licensor a royalty of
______** on Licensee's Gross Revenues of Articles sold by Licensee using the
Trademark; provided, however, no royalty shall be due on Articles sold to
Licensor using the Trademark so long as said Articles are sold to Licensor at
Licensee's lowest wholesale price. In connection with any Articles sold and/or
<PAGE>
distributed by Licensee to a related company of Licensee at a price lower than
the price otherwise charged to the trade, the royalty payable herein shall be
based on what the Gross Revenues of the sales of the Articles would have been if
the company was not related to Licensee. As used herein "Gross Revenues" means
the gross sales price invoiced by Licensee to purchasers of the Articles minus
any credits or allowances given as a result of the return or destruction of such
Articles, any off-invoice allowances (but not promotional billback allowances),
and any applicable sales or use taxes. For all purposes of this Agreement, the
royalty shall accrue on the sale of the Articles and the Articles shall be
considered sold when shipped or billed out, whichever occurs earlier.
b. Royalty Payments and Records: Licensee agrees to keep full,
accurate and complete books of account, and other records in sufficient detail
so that the royalty payable hereunder may be ascertained properly. Within thirty
(30) days after the end of each of Licensor's fiscal quarters which commence
June 1, September 1, December 1 and March 1, Licensee shall furnish to Licensor
complete and accurate statements of sales of Articles using the Trademark during
such previous fiscal quarter certified to be accurate by the chief financial or
accounting officer of Licensee showing the number, description, Gross Revenues
of such Articles and permitted deductions therefrom. Such statements shall be
<PAGE>
furnished to Licensor whether or not any of the Articles utilizing the Trademark
have been sold during the preceding quarter and whether or not a royalty is due.
Each such report shall be accompanied by a check for the amount of royalty
payments due with respect to the period covered by such report. The receipt or
acceptance by Licensor of any of the statements furnished pursuant to this
Agreement or of any royalties paid hereunder (or the cashing of any royalty
checks paid hereunder) shall not preclude Licensor from questioning the
correctness thereof at any time, and in the event that inconsistencies or
mistakes are discovered in such statements or payments, they shall be rectified
and the appropriate payments made by Licensee upon demand by Licensor. Any
royalty payments, including accrued royalties, and audit findings, not paid when
due shall be paid immediately upon demand and shall bear interest at an annual
rate of two percent (2%) over the rate of interest publicly announced by
Citibank, N.A. in New York as its base rate in effect as of the date on which
such overdue royalty amount should have been paid to Licensor.
Licensee agrees, upon request by Licensor, to permit Licensor
or its authorized representative to have access to such books or records as may
be necessary to determine the royalty in respect of any accounting period
covered by this Agreement and obtain any information as to the amount payable in
case of failure to report. Such audits shall be at the expense of Licensor
<PAGE>
unless they show that Licensee has understated the royalties by five percent
(5%) or more or Five Thousand Dollars ($5,000) (whichever is greater) for any
quarter, in which case Licensee shall reimburse Licensor for its out-of-pocket
expenses incurred in connection with the audit as well as pay to Licensor the
required amount of additional royalties. All books of account and records shall
be kept available by Licensee for at least two (2) years after the submission of
the relevant statement.
3. Licensor's Authorized Representative
Wherever Licensee is directed to furnish or supply to
or otherwise take some action or perform some obligation in respect of Licensor
in this Agreement, the term "Licensor" shall be deemed to include "or Licensor's
authorized representative" unless written advice to the contrary is received
from Licensor.
4. Goodwill. etc.
a. Licensee recognizes the great value of the goodwill
associated with the Trademark and acknowledges that the Trademark and all rights
therein and the goodwill pertaining thereto belong exclusively to Licensor.
Licensee agrees not to contest Licensor's rights in the Trademark or perform any
material act or omission adverse to said rights.
b. Licensee hereby agrees that its every use of the Trademark
shall inure to the benefit of Licensor and that Licensee shall not at any time
<PAGE>
acquire any rights in the Trademark by virtue of any use it may make of the
Trademark other than the licensed rights granted herein.
c. Subject to being reimbursed for its out-of-pocket expenses,
Licensee agrees to cooperate fully and in good faith with Licensor for the
purpose of securing, preserving and protecting Licensor's rights or any grantor
of Licensor's rights in and to the Trademark.
d. Licensee agrees that it will use the Trademark only on the
specific Articles herein licensed, and that it will not adopt or use as its own
a trademark the same or similar to the Trademark.
e. Licensor shall have the right, but shall not be under any
obligation, to use the Trademark and/or the name of Licensee so as to give the
Trademark, Licensee, Licensor and/or Licensor's products full and favorable
prominence and publicity. Licensor shall not be under any obligation whatsoever
to continue using the Trademark in connection with its products or services.
f. Licensee acknowledges that its failure (except as otherwise
provided herein) to cease the manufacture, sale or distribution of Articles
utilizing the Trademark covered by this Agreement on the termination or
expiration of this Agreement will result in immediate and irremediable damage to
Licensor and to the rights of any subsequent licensee. Licensee acknowledges and
admits that there is no adequate remedy at law for such failure to cease the
<PAGE>
manufacture, sale or distribution, and Licensee agrees that in the event of such
failure, Licensor shall be entitled to equitable relief by way of temporary and
permanent injunctions and such other and further relief as any court with
jurisdiction may deem just and proper.
g. Licensee shall report to Licensor in writing any
infringement or imitation of the Trademark it becomes aware of on Articles or
products similar to Articles. Licensor shall have the sole right to determine
whether to institute litigation upon any such infringements as well as the sole
right to select counsel. In the event Licensor decides to institute such
litigation, Licensor shall offer Licensee an opportunity to voluntarily join in
any such action. In the event that Licensee voluntarily joins in any such
action, the expenses and any damages awarded as the result of a lawsuit or
settlement reached as a result of a lawsuit shall be split fifty/fifty (50/50)
by the parties after the out-of-pocket expenses have been reimbursed. In the
event that Licensee chooses not to voluntarily join in any such action, Licensor
shall be free to join Licensee as a party thereto and Licensee agrees to
cooperate with Licensor in any such suit subject to being reimbursed for its
out-of-pocket expenses. If Licensee does not join the suit voluntarily, all
expenses shall be borne by Licensor, and all recoveries and awards shall be
fully retained by Licensor. If Licensor decides not to institute such
litigation, it may authorize, within its sole discretion, Licensee to institute
<PAGE>
such litigation, in which event Licensee shall be solely responsible for the
costs of such litigation and shall be entitled to keep any recoveries therefrom.
5. Indemnification and Product Liability Insurance
a. Licensee hereby indemnifies Licensor and undertakes
to defend Licensee and/or Licensor against and hold Licensor harmless from any
claims, suits, damages, out-of-pocket expenses (including legal fees and
out-of-pocket expenses) and losses arising from the activities of Licensee under
this Agreement (other than the use of the Trademark as authorized herein)
including, but not limited to, the unauthorized use of any patent, process,
idea, method or device by Licensee in connection with the Articles covered by
this Agreement. Licensee agrees that it will obtain and maintain throughout the
term of this Agreement, at its own expense, liability insurance including
product liability with a broad form vendors endorsement from an insurance
company reasonably acceptable to Licensor providing adequate protection (at
least in the amount of Ten Million Dollars ($10,000,000)) against any claims,
suits, damages, expenses or losses arising out of Licensee's operations pursuant
to this Agreement. Such insurance shall include coverage of Licensor and its
directors, officers, agents, employees, assignees and successors. As proof of
such insurance, a certificate of insurance naming Licensor as an additional
insured party will be submitted to Licensor by Licensee for prior
<PAGE>
approval before any Articles using the Trademark are distributed or sold, and at
the latest within thirty (30) days after the date first written above. Licensor
shall be entitled to a copy of the prevailing certificate(s) of insurance which
shall be furnished to Licensor by Licensee. Licensee and its insurer shall
provide Licensor with thirty (30) days advance notice in the event of the
cancellation of said insurance.
b. Licensor hereby indemnifies Licensee and undertakes to
defend Licensee and hold Licensee harmless from any trademark infringement
claims, suits, damages, out-of-pocket expenses (including legal fees and
out-of-pocket expenses) and losses arising solely out of Licensee's use of the
Trademark in connection with Articles approved under the terms of this
Agreement.
6. Quality of Merchandise
a. Licensee agrees that the Articles covered by this Agreement
shall be of high standard and of such style, appearance and quality as to be
adequate and suited to their advantageous exploitation and to the protection and
enhancement of the Trademark and the goodwill pertaining thereto, that Licensee
will manufacture, sell and distribute the Articles in accordance with all
applicable Federal, State and local laws and that the policy of sale,
distribution, and/or exploitation by Licensee shall be advantageous and of high
standard and that the same shall in no manner reflect adversely upon the good
<PAGE>
name of Licensor or any of its activities or the Trademark. To this end,
Licensee shall, before selling or distributing any Articles covered by this
Agreement, furnish to Licensor, free of cost for its written approval, a
reasonable number of each of the Articles. The quality, appearance and style of
such Articles shall be subject to the approval of Licensor which approval shall
not be unreasonably withheld or delayed. Licensor shall approve Articles, the
quality, style and appearance of which, at least equals the quality, style and
appearance of other products sold___________________________________________**.
With respect to ice cream cakes and other related products within the
definition of Articles, for which there is currently no equivalent product sold
_________________________**, the quality, style and appearance of such
Articles shall at least equal that of current products manufactured by or on
behalf of_________________________________________**, if any. At the request of
Licensor, Licensee shall supply to Licensor any manufacturing information
requested by Licensor to help Licensor in evaluating the quality and style of
such Articles. Any Articles submitted to Licensor and not disapproved by
Licensor within fifteen (15) business days of its receipt by Licensor shall be
deemed to have been approved pursuant to this paragraph. Licensor acknowledges
<PAGE>
that it has already approved, conceptually, the Articles internally referred to
by Licensee as "_________________**." However, Licensee has not yet received or
approved samples of such Articles. Licensee warrants that the Articles
manufactured, distributed and sold by Licensee, if applicable, and its contract
packers and the manufacturing and sanitation practices used by Licensee, if
applicable, and its contract packers to produce the Articles will comply with
all applicable Federal, State and local laws, including, but not limited to,
manufacturing codes, and that Licensee will not manufacture the Articles from
inherently dangerous materials or substances and will not design the Articles so
as to constitute any inherent danger. After samples of the Articles have been
approved pursuant to this paragraph, Licensee shall not depart therefrom in any
material respect without Licensor's prior written consent, and Licensor shall
not withdraw its approval of the approved Articles or any approved plant except
for good cause when Licensor may in good faith have reason to believe that the
approved Articles or the manufacture of Articles by the approved plant may be
detrimental to the health or safety of the public. Licensor acknowledges that
the plants operated as of the date of this Agreement by_______________________
____________________________________________________________________________**
are acceptable to Licensor as of the date of this Agreement. From time to time
<PAGE>
after Licensee has commenced selling the Articles and upon Licensor's written
request, Licensee shall furnish, without cost to Licensor, the requested
reasonable amount of samples of the Articles being manufactured and sold by
Licensee hereunder. Also, Licensor, through such agents or representatives as it
may designate, shall have access to Licensee's facilities and the facilities of
Licensee's contract manufacturers where the Articles are manufactured, at
reasonable times and with reasonable advance notice given during normal business
hours, for the purpose of inspecting the Articles to the extent necessary to
determine whether Licensor's quality standards are being met.
b. Licensee shall have the sole responsibility with respect to
the Articles for taking action, maintaining records or handling recalls and all
costs associated therewith under the Consumer Products Safety Act, the Federal
Food, Drug and Cosmetic Act or any other similar acts, orders or directives.
c. Subject to the terms of this Agreement, Licensor
acknowledges that Licensee shall have the right to make adjustments to its
formulas for the Articles and to develop and market new Articles using the
Trademark. Licensee's formulas for the Articles shall remain the property of
Licensee after expiration or termination of this Agreement.
<PAGE>
7. Confidentiality
Both parties shall keep confidential and shall not cause or permit
the disclosure to any third party, other than those whose duties require
possession of such information, such as contract manufacturers and sublicensees,
of any confidential information disclosed by either party to the other pursuant
to this Agreement. Confidential information may include, but is not limited to,
formulas, production processes, research, marketing and sales information. Said
confidentiality requirement shall not apply to any information which (a) was in
the possession of a party on a nonconfidential basis prior to the receipt of any
disclosure to it by the other party, or (b) is or becomes, without disclosure by
a party, part of the public knowledge or literature, or (c) otherwise lawfully
becomes available to a party, from sources other than the other party, which
sources did not acquire such information directly from the party, or (d) counsel
to the party advises must be disclosed pursuant to a court order or by law or
regulation.
8. Labeling. Promotion Advertising and Use
a. Licensee shall submit to Licensor for its prior
written approval, all new proposed tags, labels, containers, packaging,
advertising, promotional or display materials or the like containing or
referring to the Trademark, which approval shall not be unreasonably withheld or
delayed. Any item submitted to Licensor and not disapproved by Licensor within
<PAGE>
ten (10) business days of its receipt by Licensor shall be deemed to have been
approved pursuant to this paragraph. b. Licensee may use another brand name or
trademark on the Articles in connection with the Trademark subject to the
approval of Licensor as set forth above in paragraph 8 (a). While such approval
shall not be unreasonably withheld, Licensor may take into account (i) the
importance and value of the Trademark to Licensor and (ii) the image Licensor
desires to maintain for the Trademark, in each case as evidenced by other uses
of the Trademark by, or authorized by, Licensor. Licensor acknowledges that a
name such as _____________________** subject to an appropriate trademark search
and clearance, is an acceptable name hereunder. Likewise, the name _____________
____**, subject to an appropriate trademark search and clearance, is an
acceptable name, but in this instance would become the property of Licensor (as
would any other name substantially similar to a trademark owned by Licensor).
Such other brand names or trademarks shall remain the property of Licensee after
the expiration or termination of this Agreement, unless previously owned by
Licensor.
c. Licensee agrees that it will apply the proper reasonable
notations, as specified by Licensor, indicating that the Trademark is owned by
General Mills, Inc. and used with its permission on all tags, labels,
<PAGE>
containers, packaging, advertising, promotional or display materials or the like
containing or referring to the Trademark.
d. Licensee warrants that all tags, labels, containers,
packaging, advertising, promotional or display materials or the like containing
the Trademark will comply with all applicable Federal, State and local laws.
9. Term and Termination
a. The term of this Agreement shall commence on the date first
written above and shall end on December 31, 2010, unless sooner terminated in
accordance herewith.
b. If this Agreement has not otherwise been terminated,
Licensee shall have an option to extend this Agreement until December 31, 2015
by giving written notice thereof to Licensor by September 30, 2010, provided
that Licensee pays Licensor the sum of ______________________________** by
December 31, 2010. This payment is independent of any royalties which may be due
Licensor hereunder. In the event Licensee does not furnish written notice of
extension to Licensor by September 30, 2010, Licensor shall notify Licensee that
this Agreement shall terminate on December 31, 2010, unless Licensee provides
Licensor with written notice of its intention to extend within fifteen (15)
business days after Licensee's receipt of such written notice. In the event
Licensor does not furnish such written notice to Licensee before December 12,
2010, this Agreement shall continue in effect after December 31, 2010 until
<PAGE>
such time as Licensor shall notify Licensee that this Agreement shall terminate,
unless Licensee provides Licensor with written notice of its intention to extend
within fifteen (15) business days after Licensee's receipt of such notification,
along with payment in full of the amount due, plus interest on such amount, at
the rate specified in paragraph 2 (b), in effect as of December 31, 2010, with
such interest accruing from and after that date.
c. [Redacted]
d. Licensor may terminate this Agreement if Licensee shall be
in material default of any obligation to Licensor hereunder, including, but not
limited to, obligations set forth in paragraphs 2, 4, 5, 6, 8, 10 or 14, by
giving written notice to Licensee calling attention to such default, specifying
the nature thereof and the action required to correct the default and stating
that this Agreement will terminate at the expiration of thirty (30) days from
the date of the receipt by Licensee of such notice unless Licensee shall cure
such default within thirty (30) days after the receipt of such notice, or if
such default cannot be cured within thirty (30) days of the receipt of such
notice, Licensee, exercising due diligence, has commenced taking the steps
necessary to prevent the recurrence of such default and is diligently pursuing
such steps. Failure of Licensor to terminate this Agreement for any such default
or breach shall not be determined a waiver of the right subsequently to do so
<PAGE>
under the same or any other such default or breach, either of the same or
different character.
e. If for any consecutive twelve (12) month period beginning
two (2) years from the date of this Agreement, Licensee is not engaged in
manufacturing or selling any Articles using the Trademark in either the United
States or Canada, Licensor shall have the right to terminate this Agreement as
to that part of the Territory (United States or Canada) by giving Licensee
written notice to that effect, provided, as to Canada, that Licensor shall not
have the right to terminate unless Licensor, directly or through a Licensee,
intends to engage in the sale of Articles using the Trademark within 12 months
in Canada. Licensee shall have two (2) months from the date of the receipt of
the written notice to commence the manufacturing or selling of Articles using
the Trademark and, in the absence of which, this Agreement shall automatically
terminate at the end of said two (2) month period as to that part of the
Territory, provided, however, as to Canada, this Agreement shall resume in full
force and effect if Licensor does not commence selling Articles using the
Trademark in Canada, within 12 months after such termination. Licensee agrees to
give Licensor prompt written notice of its intention to discontinue marketing
Articles under the Trademark.
f. The license hereby granted shall automatically terminate
forthwith without any notice whatsoever being necessary if Licensee discontinues
its business or Licensee voluntarily submits to, or is ordered by the
<PAGE>
bankruptcy court to undergo, liquidation pursuant to Chapter 7 of the bankruptcy
code. In the event this license is so terminated, Licensee, 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 Articles
covered by this Agreement, or any carton, container, packaging or wrapping
material, advertising, promotional or display materials pertaining thereto,
except with and under the special consent and instruction of Licensor in
writing, which they shall be obligated to follow. Should Licensee file a
petition in bankruptcy or is otherwise adjudicated a bankrupt or if a petition
in bankruptcy is filed against Licensee and the Articles are attached and such
petition is not discharged or dismissed or if an involuntary receiver is
appointed for it or its business within ninety (90) days thereafter, this
Agreement shall automatically terminate, in each case, if and when, but only if,
a bankruptcy or other court of appropriate jurisdiction sells, assigns or
otherwise causes this Agreement to be transferred to (1) a business which is a
material competitor to any of General Mills' businesses or (2) a business whose
image is incompatible with the image of General Mills, such as a business which
derives a material portion of its revenues from tobacco or from alcoholic
beverages, or from pornography or other explicit sexually related material, or
which has been convicted of a felony or whose chief executive, financial or
<PAGE>
operating officer in his or her role as an officer of the company has been
convicted of a felony, or which does not meet Licensor's advertising standards
as set forth in the attached Schedule.
g. Termination of this Agreement for any reason shall not
release either party from any part of any obligation accrued prior to the date
of such termination, or obligations continuing beyond termination of the
Agreement.
h. Termination of this Agreement for any reason shall be
without prejudice to any rights which either party may otherwise have against
the other.
i. Upon expiration or termination of this Agreement for any
reason other than failure to comply with the requirements of paragraph 9 (f) of
this Agreement, Licensee shall have a period of three hundred sixty five (365)
days after the date of termination in which to phase out its use of the
Trademark, provided all Articles to be sold, and all uses of the Trademark by
Licensee during such 365 day period, comply with the requirements of paragraphs
6 and 8 hereof. Licensee shall report to Licensor with respect to such sales and
make the requisite royalty payment within thirty (30) days after the end of each
month during the aforesaid three hundred sixty five (365) day period. All duties
and obligations of the Licensee under this Agreement shall remain in force
during the sell-off period.
<PAGE>
10. Distribution
a. Licensee agrees to exercise good faith reasonable efforts
in the performance of this Agreement.
b. Licensee agrees to sell and distribute the Articles covered
by this Agreement at a competitive price and not on an approval or consignment
basis to retail stores.
c. Licensee agrees to keep Licensor informed on a regular
basis of Licensee's activities in manufacturing and marketing the Articles
covered by this Agreement.
11. Force Majeure
No failure or omission by Licensee in the performance of any
obligation of this Agreement shall be deemed a breach of this Agreement nor
create any liability if the same shall arise from any cause or causes beyond the
reasonable control of Licensee.
12. Warranty and Consumer Response
Licensee will, at no cost to Licensor, handle all
warrantee (guarantee) satisfaction, response and compliance and all consumer
response relative to any of the Articles. Licensor shall promptly forward to
Licensee, for handling, any and all such consumer inquiries that it receives.
Licensee shall use reasonable efforts to keep Licensor generally informed of
consumer complaints relative to the Articles.
13. No Joint Venture
Nothing herein contained shall be construed to place the
parties in the relationship of partners or joint venturers, and
<PAGE>
neither party shall have the power to obligate or bind the other in any manner
whatsoever.
14. Assignment, Sublicense or Change of Control
a. This Agreement and all rights and duties hereunder
are personal to Licensee and shall not, without the written consent of Licensor,
be assigned, mortgaged, sublicensed or otherwise encumbered by Licensee or by
operation of law. Such consent shall not be unreasonably withheld. In making
this determination, Licensor shall solely take into account whether the
potential assignee, sublicensee or other acquirer is (1) a business which is a
material competitor to any of the BETTY CROCKER product lines of Licensor or to
Licensor's business when taken as a whole or (2) a business whose image is
incompatible with the image Licensor maintains for BETTY CROCKER, such as a
business which derives a material portion of its revenues from tobacco or from
alcoholic beverages or from pornography or other explicit sexually related
material or which has been convicted of a felony or whose chief executive,
financial, or operating officer in his or her role as an officer of the company,
has been convicted of a felony, or which does not meet Licensor's advertising
standards as set forth in the attached Schedule. For purposes of the foregoing,
this Agreement shall be deemed to be assigned if there is a "change in control"
in the Licensee. For purposes of the forgoing, "change in control" shall mean
the occurrence of any of the following events:
<PAGE>
(i) any person other than a current shareholder
of Licensee as originally constituted as of
the date hereof (including a group as defined
in Section 13 (d) (3) of the Securities
Exchange Act of 1934) become the beneficial
owner, directly or indirectly, of a majority
of the issued and outstanding shares of
Licensee entitle to vote for the election of
directors;
(ii) as a result of or in connection with any
cash tender offer, exchange offer, merger or
other business combination of the foregoing,
the persons who were directors of Licensee
just prior to such event shall cease to
constitute a majority of the Licensees Board
of Directors; or
(iii) the stockholders of Licensee approve an
agreement providing for a transaction in
which Licensee will cease to be an
independent corporation or pursuant to
which Licensee sells or otherwise
disposes of all or substantially all of
the assets of Licensee other than to
another entity "affiliated" (as that
term is defined in Rule 12b-2 of the
<PAGE>
Securities Exchange Act of 1934) with
Licensee
15. Notices
All notices to be made hereunder shall be in writing sent via
certified, overnight or registered mail (return receipt requested). Any Articles
or materials submitted for approval under this Agreement shall not be governed
by the mailing type requirements of this Notice provision. Such notices and
statements 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 or
statement is received:
To Licensor: To Licensee:
General Mills, Inc. Integrated Brands Inc.
Number One General Mills Boulevard 4175 Veterans Highway
Minneapolis, MN 55426 Ronkonkoma, New York 11779
Attn: Trademark Counsel Attn: Gary P. Stevens, President
cc: General Counsel cc: Benjamin Raphan, Esq.
General Mills, Inc. Tenzer Greenblatt LLP
Number One General Mills 405 Lexington Avenue
Boulevard New York, New York 10174
Minneapolis, MN 55426
16. No Waiver. Etc.
None of the terms of this Agreement can be waived or modified
except by an express agreement in writing signed by both parties.
<PAGE>
There are no representations, promises, warranties, covenants or
undertakings other than those contained in this Agreement and in the other
agreements between the parties hereto dated as of even date herewith which
represent the entire understanding of the parties.
17. Choice of Law
This Agreement shall be governed by and construed in accordance
with the internal laws (and not the law of conflicts) of the State of Minnesota.
The parties hereto agree to submit to jurisdiction in the state of Minnesota,
and further agree that any court proceeding relating to any controversy arising
under this Agreement shall be in the federal court located in Hennepin County in
the state of Minnesota.
18. Submission of Agreement
This Agreement shall become effective only upon its execution by
Licensor and Licensee.
IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be duly executed as of the date and year first above written.
GENERAL MILLS, INC.
Dated: August 15, 1995 By: /s/ Gary M. Rodkin
---------------------------------
Senior Vice President
INTEGRATED BRANDS INC.
Dated: August 15, 1995 By: /s/ Richard E. Smith
--------------------------------
Chairman and CEO
<PAGE>
EXHIBIT 10.33
PURSUANT TO RULE 24B-2 PROMULGATED UNDER THE SECURITIES AND EXCHANGE ACT OF
1934, AS AMENDED, CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS
OF THIS AGREEMENT. SUCH CONFIDENTIAL INFORMATION HAS BEEN (I) OMITTED FROM THIS
VERSION OF THE AGREEMENT, (II) MARKED WITH ASTERISKS (**) AND (III) FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
THE LUCKY CHARMS LICENSE AGREEMENT
THIS AGREEMENT made as of the 15th day of August, 1995 by and
between General Mills, Inc., a Delaware corporation, having a place of business
at Number One General Mills Boulevard, Minneapolis, Minnesota 55426, hereinafter
referred to as "Licensor", and Integrated Brands Inc., a New Jersey corporation,
having a place of business at 4175 Veterans Highway, Ronkonkoma, New York 11779,
hereinafter referred to as "Licensee."
WHEREAS, Licensor is the owner of the trademark rights for the
words COUNT CHOCULA and LUCKY CHARMS and the vampire and leprechaun characters
associated therewith (hereinafter collectively and/or individually referred to
as "Trademarks") in connection with breakfast cereal products; and
WHEREAS, Licensee desires a license from Licensor to use the
Trademark solely in connection with the development, manufacture, contract
manufacture, marketing, sale and distribution of "Articles", defined to mean all
prepackaged frozen products containing at least thirty-five percent (35%) by
volume frozen yogurt, ice cream, ice milk, sherbet, sorbet, frozen fruit, water
ice or other frozen items which would be considered substitutes for the
foregoing frozen items/ingredients, dairy or non-dairy, naturally or
artificially sweetened, sold in any prepackaged container size or form.
<PAGE>
("Prepackaged" is defined to mean packaged by the manufacturer off the premises
from which finished goods are sold at retail to consumers). Examples of Articles
include, but are not limited to (i) retail prepackaged goods, such as gallons,
half gallons, quarts, pints and half pints; (ii) bulk, such as three (3) gallon,
two and one half (2 1/2) gallon and one and one half (1 1/2) gallon prepackaged
containers; (iii) prepackaged novelties such as pops, bars, sandwiches, cups,
cones, parfaits, push-ups, nuggets and shakes; and (iv) prepackaged finished
prepared frozen dessert specialties such as ice cream cakes and pies, cake
rolls, jimmy rolls, nut rolls and brownie sundaes. "Articles" always exclude all
machine dispensed frozen yogurt, machine dispensed ice cream and other items
which are machine dispensed. ("Machine dispensed" is defined to mean unpackaged
food items dispensed from a machine on the premises from which finished goods
are sold directly to the consumer, and would not include prepackaged items
dispensed from a vending machine).
NOW, THEREFORE, in consideration of the mutual promises herein
contained, it is hereby agreed as follows:
1. Grant of License
a. Articles: Upon the terms and conditions hereinafter set
forth, Licensor hereby grants to Licensee and Licensee hereby accepts the
exclusive right, license and privilege of utilizing the Trademarks solely in
connection with the development, manufacture, contract manufacture, marketing,
sale and distribution of Articles; provided however, that Licensee is not
<PAGE>
authorized to use the Trademarks in connection with any Articles distributed as
premiums or otherwise to be used as aids in the advertisement or promotion of
any products or business of others (other than the sale of Articles). Subject to
Licensor's prior written approval, which approval shall not be unreasonably
withheld, Licensee shall have the right to have third parties manufacture such
Articles for Licensee so long as such third parties agree in writing to comply
with the quality control provisions and any other provisions relevant to such
third party set forth in this Agreement. Any third party manufacturer not
disapproved by Licensor within fifteen (15) business days after receipt by
Licensor of Licensee's written request for such approval shall be deemed
approved pursuant to this paragraph. Licensor acknowledges that Licensee may
elect to have Articles manufactured by third parties who are also retailers of
the Articles, and that the Articles may be manufactured by and sold to some or
all of such third party manufacturer/retailers without Licensee taking actual
physical possession of such Articles
b. Exclusivity: Subject to the terms of this Agreement,
Licensor agrees that it will not use or license to anyone else the right to use
the Trademark in the Territory, in connection with the Articles.
c. Reservation: Notwithstanding paragraphs (a) and (b)
above:
(i) It is understood Licensor reserves to itself
the right to use and license to others the
<PAGE>
right to use the Trademark in connection
with any products and/or services not
included within the definition of Articles,
including but not limited to, (v) machine
dispensed frozen yogurt, (w) machine
dispensed ice cream, (x) other machine
dispensed items, (y) bulk mixes for making
machine dispensed frozen yogurt, machine
dispensed ice cream and other machine
dispensed items, and (z) any refrigerated
products, including refrigerated products of
similar or same description as the Articles
(but not frozen). Also, Licensor reserves
the right to allow retailers (including
Licensor) to pack in retail premises excess
machine dispensed frozen yogurt, machine
dispensed ice cream and other items which
are machine dispensed in appropriately
labeled containers using the Trademark for
retail sale to consumers from the premises
on which such products were machine
dispensed.
(ii) In addition, Licensor reserves to itself the
right to use or license to others to use the
Trademark as the name of a retail business
of any type which sells frozen yogurt, ice
<PAGE>
cream or frozen novelties including but not
limited to restaurants, ice cream counters
and carts and frozen yogurt counters and
carts; provided, however, this provision
shall not preclude Licensee from selling
Articles using the Trademark to such
businesses should such businesses desire to
sell said Articles.
d. Territory: This Agreement is limited to the United States,
its territories and possessions (including Puerto Rico) and Canada.
2. Royalty
a. Rate: Licensee agrees to pay to Licensor a royalty of
_____________** on the Licensee's Gross Revenues of Articles sold by Licensee
using the Trademarks; provided, however, no royalty shall be due on Articles
sold to Licensor using the Trademarks so long as said Articles are sold to
Licensor at Licensee's lowest wholesale price. In connection with any Articles
sold and/or distributed by Licensee to a related company of Licensee at a price
lower than the price otherwise charged to the trade, the royalty payable herein
shall be based on what the Gross Revenues of the sales of the Articles would
have been if the company was not related to Licensee. As used herein "Gross
Revenues" means the gross sales price invoiced by Licensee to purchasers of the
Articles minus any credits or allowances given as a result of the return or
<PAGE>
destruction of such Articles, any off-invoice allowances (but not promotional
billback allowances), and any applicable sales or use taxes. For all purposes of
this Agreement, the royalty shall accrue on the sale of the Articles and the
Articles shall be considered sold when shipped or billed out, whichever occurs
earlier.
b. Royalty Payments and Records: Licensee agrees to keep full,
accurate and complete books of account, and other records in sufficient detail
so that the royalty payable hereunder may be ascertained properly. Within thirty
(30) days after the end of each of Licensor's fiscal quarters which commence
June 1, September 1, December 1 and March 1, Licensee shall furnish to Licensor
complete and accurate statements of sales of Articles using the Trademarks
during such previous fiscal quarter certified to be accurate by the chief
financial or accounting officer of Licensee showing the number, description,
Gross Revenues of such Articles and permitted deductions therefrom. Such
statements shall be furnished to Licensor whether or not any of the Articles
utilizing the Trademarks have been sold during the preceding quarter and whether
or not a royalty is due. Each such report shall be accompanied by a check for
the amount of royalty payments due with respect to the period covered by such
report. The receipt or acceptance by Licensor of any of the statements furnished
pursuant to this Agreement or of any royalties paid hereunder (or the cashing of
any royalty checks paid hereunder) shall not preclude Licensor from questioning
<PAGE>
the correctness thereof at any time, and in the event that inconsistencies or
mistakes are discovered in such statements or payments, they shall be rectified
and the appropriate payments made by Licensee upon demand by Licensor. Any
royalty payments, including accrued royalties, and audit findings, not paid when
due shall be paid immediately upon demand and shall bear interest at an annual
rate of two percent (2%) over the rate of interest publicly announced by
Citibank, N.A. in New York as its base rate in effect as of the date on which
such overdue royalty amount should have been paid to Licensor.
Licensee agrees, upon request by Licensor to permit Licensor or
its authorized representative to have access to such books or records as may be
necessary to determine the royalty in respect to any accounting period covered
by this Agreement and obtain any information as to the amount payable in case of
failure to report. Such audits shall be at the expense of Licensor unless they
show that Licensee has understated the royalties by five percent (5%) or more or
Five Thousand Dollars ($5,000) (whichever is greater) for any quarter, in which
case Licensee shall reimburse Licensor for its out-of-pocket expenses incurred
in connection with the audit as well as pay to Licensor the required amount of
additional royalties. All books of account and records shall be kept available
by Licensee for at least two (2) years after the submission of the relevant
statement.
<PAGE>
3. Licensor's Authorized Representative
Wherever Licensee is directed to furnish or supply to or otherwise
take some action or perform some obligation in respect of Licensor in this
Agreement, the term "Licensor" shall be deemed to include "or Licensor's
authorized representative" unless written advice to the contrary is received
from Licensor.
4. Goodwill, etc.
a. Licensee recognizes the great value of the goodwill
associated with the Trademarks and acknowledges that the Trademarks and all
rights therein and the goodwill pertaining thereto belong exclusively to
Licensor. Licensee agrees not to contest Licensor's rights in the Trademarks or
perform any material act or omission adverse to said rights.
b. Licensee hereby agrees that its every use of the Trademarks
shall inure to the benefit of Licensor, and that Licensee shall not at any time
acquire any rights in the Trademarks by virtue of any use it may make of the
Trademarks other than the licensed rights granted herein.
c. Subject to being reimbursed for its out of pocket expenses,
Licensee agrees to cooperate fully and in good faith with Licensor for the
purpose of securing, preserving and protecting Licensor's rights or any grantor
of Licensor' s rights in and to the Trademarks.
d. Licensee agrees that it will use the Trademarks only
on the specific Articles herein licensed, and that it will not
<PAGE>
adopt or use as its own a trademark the same or similar to the
Trademarks.
e. Licensor shall have the right, but shall not be under any
obligation to use the Trademarks and/or the name of Licensee so as to give the
Trademarks, Licensee, Licensor and/or Licensor's products full and favorable
prominence and publicity. Licensor shall not be under any obligation whatsoever
to continue using the Trademarks in connection with its products or services.
f. Licensee acknowledges that its failure (except as otherwise
provided herein) to cease the manufacture, sale or distribution of Articles
utilizing the Trademarks covered by this Agreement on the termination or
expiration of this Agreement will result in immediate and irremediable damage to
Licensor and to the rights of any subsequent licensee. Licensee acknowledges and
admits that there is no adequate remedy at law for such failure to cease the
manufacture, sale or distribution, and Licensee agrees that in the event of such
failure, Licensor shall be entitled to equitable relief by way of temporary and
permanent injunctions and such other and further relief as any court with
jurisdiction may deem just and proper.
g. Licensee shall report to Licensor in writing any
infringement or imitation of the Trademarks it becomes aware of on
Articles or products similar to Articles. Licensor shall have the
sole right to determine whether to institute litigation upon any
such infringements as well as the sole right to select counsel. In
<PAGE>
the event Licensor decides to institute such litigation, Licensor shall offer
Licensee an opportunity to voluntarily join in any such action. In the event
that Licensee voluntarily joins in any such action, the expenses and any damages
awarded as the result of a lawsuit or settlement reached as a result of a
lawsuit shall be split fifty/fifty (50/50) by the parties after the
out-of-pocket expenses have been reimbursed. In the event that Licensee chooses
not to voluntarily join in any such action, Licensor shall be free to join
Licensee as a party thereto and Licensee agrees to cooperate with Licensor in
any such suit subject to being reimbursed for its out-of-pocket expenses. If
Licensee does not join the suit voluntarily, all expenses shall be borne by
Licensor, and all recoveries and awards shall be fully retained by Licensor. If
Licensor decides not to institute such litigation, it may authorize, within its
sole discretion, Licensee to institute such litigation in which event Licensee
shall be solely responsible for the costs of such litigation and shall be
entitled to keep any recoveries therefrom.
5. Indemnification and Product Liability Insurance
Licensee hereby indemnifies Licensor and undertakes to
defend Licensee and/or Licensor against and hold Licensor harmless from any
claims, suits, damages, out-of-pocket expenses (including legal fees and
out-of-pocket expenses) and losses arising from the activities of Licensee under
this Agreement (other than the use of the Trademarks as authorized herein)
<PAGE>
including, but not limited to, the unauthorized use of any patent, process,
idea, method or device by Licensee in connection with the Articles covered by
this Agreement. Licensee agrees that it will obtain and maintain throughout the
term of this Agreement, at its own expense, liability insurance including
product liability with a broad form vendors endorsement from an insurance
company reasonably acceptable to Licensor providing adequate protection (at
least in the amount of Ten Million Dollars ($10,000,000)) against any claims,
suits, damages, expenses or losses arising out of Licensee's operations pursuant
to this Agreement. Such insurance shall include coverage of Licensor and its
directors, officers, agents, employees, assignees and successors. As proof of
such insurance, a certificate of insurance naming Licensor as an additional
insured party will be submitted to Licensor by Licensee for prior approval
before any Articles using the Trademarks are distributed or sold, and at the
latest within thirty (30) days after the date first written above. Licensor
shall be entitled to a copy of the prevailing certificate(s) of insurance which
shall be furnished to Licensor by Licensee. Licensee and its insurer shall
provide Licensor with thirty (30) days advance notice in the event of the
cancellation of said insurance.
6. Quality of Merchandise
a. Licensee agrees that the Articles covered by this Agreement
shall be of high standard and of such style, appearance and quality as to be
<PAGE>
adequate and suited to their advantageous exploitation and to the protection and
enhancement of the Trademarks and the goodwill pertaining thereto, that Licensee
will manufacture, sell and distribute the Articles in accordance with all
applicable Federal, State and local laws and that the policy of sale,
distribution, and/or exploitation by Licensee shall be of advantageous and high
standard and that the same shall in no manner reflect adversely upon the good
name of Licensor or any of its activities or the Trademarks. To this end,
Licensee shall, before selling or distributing any Articles covered by this
Agreement, furnish to Licensor, free of cost for its written approval, a
reasonable number of each of the Articles. The quality and style of such
Articles shall be subject to the approval of Licensor which approval shall not
be unreasonably withheld or delayed. At the request of Licensor, Licensee shall
supply to Licensor any manufacturing information requested by Licensor to help
Licensor in evaluating the quality and style of such Articles. Any Articles
submitted to Licensor and not disapproved by Licensor within fifteen (15)
business days of its receipt by Licensor shall be deemed to have been approved
pursuant to this paragraph. Licensor acknowledges that it has already approved
Licensee's COUNT CHOCULA sugar free double fudge twelve (12) pack item under
this paragraph. Licensee warrants that the Articles manufactured, distributed
and sold by Licensee, if applicable, and its contract packers and the
manufacturing and sanitation practices used by Licensee, if applicable, and its
<PAGE>
contract packers to produce the Articles will comply with all applicable
Federal, State and local laws, including, but not limited to, manufacturing
codes, and that Licensee will not manufacture the Articles from inherently
dangerous materials or substances and will not design the Articles so as to
constitute any inherent danger. After samples of the Articles have been approved
pursuant to this paragraph, Licensee shall not depart therefrom in any material
respect without Licensor's prior written consent, and Licensor shall not
withdraw its approval of the approved Articles or of any approved plant except
for good cause when Licensor may in good faith have reason to believe that the
approved Articles or the manufacture of Articles by the approved plant may be
detrimental to the health or safety of the public. Licensor acknowledges that
(i) the plants operated as of the date of this Agreement by____________________
_____________________________________________________________________________**
are acceptable to Licensor as of the date of this Agreement, and (ii) the
Articles using the Trademarks being manufactured by the above mentioned plants
meet the specified approved standards for quality and style, as of the date of
this Agreement. From time to time after Licensee has commenced selling the
Articles and upon Licensor's written request, Licensee shall furnish, without
cost to Licensor, the requested reasonable amount of samples of the Articles
being manufactured and sold by Licensee hereunder. Also, Licensor,
<PAGE>
through such agents or representatives, as it may designate shall have access to
Licensee's facilities and the facilities of Licensee's contract manufacturers
where the Articles are manufactured, at reasonable times and with reasonable
advance notice given during normal business hours, for the purpose of inspecting
the Articles to the extent necessary to determine whether Licensor's quality
standards are being met.
b. Licensee shall have the sole responsibility with respect to
the Articles for taking action, maintaining records or handling recalls and all
costs associated therewith under the Consumer Products Safety Act, the Federal
Food, Drug and Cosmetic Act or any other similar acts, orders or directives.
c. Subject to the terms of this Agreement, Licensor
acknowledges that Licensee shall have the right to make adjustments to its
formulas for the Articles and to develop and market new Articles using the
Trademarks. Licensee's Formulas for the Articles shall remain the property of
Licensee after expiration or termination of this Agreement.
7. Confidentiality
Both parties shall keep confidential and shall not cause or
permit the disclosure to any third party, other than those whose duties require
possession of such information, such as contract manufacturers and sublicensees,
of any confidential information disclosed by either party to the other pursuant
to this Agreement. Confidential information may include, but is not limited to
<PAGE>
formulas, production processes, research, marketing, and sales information. Said
confidentiality requirement shall not apply to any information which (a) was in
the possession of a party on a non confidential basis prior to the receipt of
any disclosure to it by the other party, or (b) is or becomes,without disclosure
by a party, part of the public knowledge or literature, or (c) otherwise
lawfully becomes available to a party, from sources other than the other party,
which sources did not acquire such information directly from the party, or (d)
counsel to the party advises must be disclosed pursuant to a court order or by
law or regulation or appropriate governmental authority.
8. Labeling Promotion, Advertising and Use
a. Licensee shall submit to Licensor for its prior
written approval all new proposed tags, labels, containers, packaging,
advertising, promotional or display materials or the like containing or
referring to the Trademarks, which approval shall not be unreasonably withheld
or delayed. Any item submitted to Licensor and not disapproved by Licensor
within ten (10) business days of its receipt by Licensor shall be deemed to have
been approved pursuant to this paragraph. Licensor acknowledges that the items
referred to above which Licensee currently uses with Articles using the
Trademark are acceptable to Licensor.
b. Licensee agrees that it will apply the proper
reasonable notations, as specified by Licensor, indicating that the
Trademarks are owned by General Mills, Inc. and used with its
<PAGE>
permission on all tags, labels, containers, packaging, advertising, promotional
or display materials or the like containing or referring to the Trademarks.
c. Licensee warrants that all tags, labels, containers,
packaging, advertising, promotional or display materials or the like containing
the Trademarks will comply with all applicable Federal, State and local laws.
d. Licensee may use another brand name or trademark on the
Articles in connection with the Trademark subject to the approval of Licensor as
set forth in paragraph 8 (a) hereof. Such other brand names or trademarks shall
remain the property of Licensee after the expiration or termination of this
Agreement unless previously owned by Licensor.
9. Term and Termination
a. The term of this Agreement shall commence on the date first
written above and shall end on December 31, 2015, unless sooner terminated in
accordance herewith.
b. If this Agreement has not been otherwise terminated,
Licensee shall have the option of extending this Agreement until December 31,
2020 by giving written notice thereof to Licensor by September 30, 2015,
provided that Licensee pays Licensor __________________** by December 31, 2015.
This payment is independent of any royalties which may be due Licensor
hereunder. If, however, the sublicense agreement between Licensor and Licensee
<PAGE>
relating to the YOPLAIT trademark is terminated in year 2002, Licensee shall
only be required to pay Licensor ________________________** independent of any
royalties owed in order to extend this Agreement. Should the YOPLAIT Trademark
Sublicense Agreement be terminated in year 2015, then Licensee shall only be
required to pay Licensor __________________** independent of any royalties owed
in order to extend this Agreement. In the event Licensee does not furnish
written notice of extension to Licensor by September 30, 2015, Licensor shall
notify Licensee that this Agreement shall terminate on December 31, 2015, unless
Licensee provides Licensor with written notice of its intention to extend within
fifteen (15) business days after Licensee's receipt of such written notice. In
the event Licensor does not furnish such written notice to Licensee before
December 12, 2015, this Agreement shall continue in effect after December 31,
2015 until such time as Licensor shall notify Licensee that this Agreement shall
terminate unless Licensee provides Licensor with written notice of its intention
to extend within fifteen (15) business days after Licensee's receipt of such
notification, along with payment in full of the amount due, plus interest on
such amount at the rate specified in paragraph 2 (b) in effect as of December
31, 2015, with such interest accruing from and after that date.
c. Licensor may terminate this Agreement if Licensee shall be
in material default of any obligation to Licensor hereunder including, but not
limited to obligations set forth in paragraphs 2,4, 5, 6, 8, 10 and 14, by
<PAGE>
giving written notice to Licensee calling attention to such default, specifying
the nature thereof and the action required to correct the default and stating
that this Agreement will terminate at the expiration of thirty (30) days from
the date of the receipt by Licensee of such notice, if such default arises out
of paragraph 2 hereof, and forty five (45) days for any other default, unless
Licensee shall cure such default within said thirty (30) or forty five (45) day
period, as applicable, after the receipt of such notice, or if such default
cannot be cured within said thirty (30) or forty five (45) day period, as
applicable, of the receipt of such notice, Licensee, exercising due diligence,
has commenced taking the steps necessary to prevent the recurrence of such
default and is diligently pursuing such steps. Failure of Licensor 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 such default or
breach, either of the same or different character.
d. If for any consecutive twelve (12) month period Licensee is
not engaged in manufacturing or selling any Articles using any one of the
Trademarks in the Territory, Licensor shall have the right to terminate this
Agreement with respect to the Trademark or portion of Territory (United States
and Canada) not in use (For example, if Licensee stops using the LUCKY CHARMS
trademark on any Articles for a one (1) year period, this Agreement may be
<PAGE>
terminated as to the LUCKY CHARMS trademark), by giving Licensee written notice
to that effect. Licensee shall have two (2) months from the date of the receipt
of the written notice to commence manufacturing or selling Articles using the
affected Trademark and in the absence of which this Agreement shall
automatically terminate at the end of said two (2) month period as to the
affected Trademark. Licensee agrees to give Licensor prompt written notice of
its intention to discontinue marketing Articles under the Trademark.
e. The license hereby granted shall automatically terminate
forthwith without any notice whatsoever being necessary if Licensee discontinues
its business or Licensee 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 license is so terminated, Licensee, 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 Articles
covered by this Agreement, or any carton, container, packaging or wrapping
material, advertising, promotional or display materials pertaining thereto,
except with and under the special consent and instruction of Licensor in
writing, which they shall be obligated to follow. Should Licensee file a
petition in bankruptcy or is otherwise adjudicated a bankrupt or if a petition
in bankruptcy is filed against Licensee and the Articles are attached and such
petition is not discharged or dismissed or if an involuntary receiver is
<PAGE>
appointed for it or its business within ninety (90) days thereafter, this
Agreement shall automatically terminate, in each case, if and when, but only if,
a bankruptcy or other court of appropriate jurisdiction sells, assigns or
otherwise causes this Agreement to be transferred to (1) a business which is a
material competitor to any of General Mills' businesses or (2) a business which
derives a material portion of its revenues from tobacco or from alcoholic
beverages, or from pornography or other explicit sexually related material, or
which has been convicted of a felony or whose chief executive, financial or
operating officer in his or her role as an officer of the company has been
convicted of a felony or which does not meet Licensor's advertising standards as
forth on the attached Schedule.
f. Termination of this Agreement for any reason shall not
release either party from any part of any obligation accrued prior to the date
of such termination, or obligations continuing beyond termination of the
Agreement.
g. Termination of this Agreement for any reason shall be
without prejudice to any rights which either party may otherwise have against
the other.
h. Upon expiration or termination of this Agreement for any
reason other than failure to comply with the requirements of paragraph 9 (e) of
this Agreement, Licensee shall have a period of three hundred sixty five (365)
days after the date of termination in which to phase out its use of the
Trademarks provided all Articles to be sold, and all uses of the Trademark, by
<PAGE>
Licensee during such three hundred sixty-five (365) day period shall comply with
the requirements of paragraphs 6 and 8 hereof. Licensee shall report to Licensor
with respect to such sales and make the requisite royalty payment within thirty
(30) days after the end of each month during the aforesaid three hundred sixty
five (365) day period. All duties and obligations of the Licensee under this
Agreement shall remain in force during the sell-off period.
10. Distribution
a. Licensee agrees to exercise good faith reasonable efforts
in the performance of this Agreement.
b. Licensee agrees to sell and distribute the Articles covered
by this Agreement at a competitive price and not on an approval or consignment
basis to retail stores.
c. Licensee agrees to keep Licensor informed on a regular
basis of Licensee's activities in manufacturing and marketing the Articles
covered by this Agreement.
11. Force Majeure
No failure or omission by Licensee in the performance of any
obligation of this Agreement shall be deemed a breach of this Agreement nor
create any liability if the same shall arise from any cause or causes beyond the
reasonable control of Licensee.
12. Warranty and Consumer Response
Licensee will, at no cost to Licensor, handle all warrantee
(guarantee) satisfaction, response and compliance and all consumer response
<PAGE>
relative to any of the Articles. Licensor shall promptly forward to Licensee,
for handling, any and all such consumer inquiries that it receives. Licensee
shall use reasonable efforts to keep Licensor generally informed of consumer
complaints relative to the Articles.
13. No Joint Venture
Nothing herein contained shall be construed to place the
parties in the relationship of partners or joint venturers, and neither party
shall have the power to obligate or bind the other in any manner whatsoever.
14. Assignment, Sublicense or Change of Control
a. This Agreement and all rights and duties hereunder
are personal to Licensee. Licensee may assign this Agreement to any third party,
provided such third party is not a major competitor of Licensor.
b. Licensor may assign this Agreement to any third party,
provided that such third party is also assigned all of Licensor's right, title
and interest in the Trademark as applied to Articles and Licensor shall furnish
written notice of such assignment to Licensee.
c. Except as provided below, any change in direct or indirect
control over Licensee or any assignee of rights of Licensee under this Agreement
shall not be subject to the prior written approval of Licensor. The term
"assignee" in the preceding sentence shall not include contract manufacturers.
However, the occurrence of any of the following events shall not be permitted:
<PAGE>
(i) any major competitor becomes the beneficial
owner, directly or indirectly, of a majority
of the issued and outstanding shares of
Licensee entitled to vote for the election of
directors;
(ii) the stockholders of Licensee approve an
agreement providing for a transaction in which
Licensee will cease to be an independent
corporation and the entity which will control
it is a major competitor of Licensor, or
pursuant to which Licensee sells or otherwise
disposes of all or substantially all of the
assets of Licensee to a major competitor of
Licensor.
15. Notices
All notices to be made hereunder shall be in writing sent via
certified, overnight or registered mail (return receipt requested). Any Articles
or materials submitted for approval under this Agreement shall not be governed
by the mailing type requirements of this Notice provision. Such notices and
statements 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 or
statement is received:
<PAGE>
To Licensor: To Licensee:
General Mills, Inc. Integrated Brands Inc.
Number One General Mills Boulevard 4175 Veterans Highway
Minneapolis, MN 55426 Ronkonkoma, New York 11779
Attn: Trademark Counsel Attn: Gary P. Stevens, President
cc: General Counsel cc: Benjamin Raphan, Esq.
General Mills, Inc. Tenzer Greenblatt LLP
Number One General Mills 405 Lexington Avenue
Boulevard New York, New York 10174
Minneapolis, MN 55426
16. No Waiver, Etc.
None of the terms of this Agreement can be waived or modified
except by an express agreement in writing signed by both parties. There are no
representations, promises, warranties, covenants or undertakings other than
those contained in this Agreement and in the other agreements between the
parties hereto dated as of even date herewith which represent the entire
understanding of the parties.
17. Choice of Law
This Agreement shall be governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the State of
Minnesota. The parties hereto agree to submit to jurisdiction in the state of
Minnesota, and further agree that any court proceeding relating to any
controversy arising under this Agreement shall be in the federal court located
in Hennepin County in the state of Minnesota.
18. Submission of Agreement
This Agreement shall become effective only upon its execution
by Licensor and Licensee.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be duly executed as of the date and year first above written.
GENERAL MILLS, INC.
Dated: August 15, 1995 By: /s/ Gary M. Rodkin
--------------------------------
Senior Vice President
INTEGRATED BRANDS INC.
Dated: August 15, 1995 By: /s/ Richard E. Smith
--------------------------------
Chairman and CEO
<PAGE>
EXHIBIT 10.34
PURSUANT TO RULE 24B-2 PROMULGATED UNDER THE SECURITIES AND EXCHANGE ACT OF
1934, AS AMENDED, CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS
OF THIS AGREEMENT. SUCH CONFIDENTIAL INFORMATION HAS BEEN (I) OMITTED FROM THIS
VERSION OF THE AGREEMENT, (II) MARKED WITH ASTERISKS (**) AND (III) FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
THE TRIX LICENSE AGREEMENT
THIS AGREEMENT made as of the 15th day of August, 1995 by and
between General Mills, Inc., a Delaware corporation, having a place of business
at Number One General Mills Boulevard, Minneapolis, Minnesota 55426, hereinafter
referred to as "Licensor," and Integrated Brands Inc., a New Jersey corporation,
having a place of business at 4175 Veterans Highway, Ronkonkoma, New York 11779,
hereinafter referred to as "Licensee."
WHEREAS, Licensor is the owner of the trademarks TRIX, the TRIX
Rabbit, and TRIX Fruit Logo (hereinafter collectively and/or individually
referred to as "Trademark") in connection with breakfast cereal products and
frozen confections; and
WHEREAS, Licensor and Licensee entered into an Agreement dated
July 29, 1992 entitled TRIX Agreement ("Previous Agreement") which they now wish
to terminate and substitute this Agreement therefore.
WHEREAS, Licensee desires a license from Licensor to use the
Trademark solely in connection with the development, manufacture, contract
manufacture, marketing, sale and distribution of "Articles," defined to mean all
prepackaged frozen products containing at least thirty-five percent (35%) by
volume frozen yogurt, ice cream, ice milk, sherbet, sorbet, frozen fruit, water
ice or other frozen items which would be considered substitutes for the
<PAGE>
foregoing frozen items/ingredients, dairy or non-dairy, naturally or
artificially sweetened, sold in any prepackaged container size or form.
("Prepackaged" is defined to mean packaged by the manufacturer off the premises
from which finished goods are sold at retail to consumers). Examples of Articles
include, but are not limited to (i) retail prepackaged goods, such as gallons,
half gallons, quarts, pints and half pints; (ii) bulk, such as three (3) gallon,
two and one half (2 1/2) gallon and one and one half (l 1/2) gallon prepackaged
containers; (iii) prepackaged novelties such as pops, bars, sandwiches, cups,
cones, parfaits, push-ups, nuggets and shakes; and (iv) prepackaged finished
prepared frozen dessert specialties such as ice cream cakes and pies, cake
rolls, jimmy rolls, nut rolls and brownie sundaes. "Articles" always exclude all
machine dispensed frozen yogurt, machine dispensed ice cream and other items
which are machine dispensed. ("Machine dispensed" is defined to mean unpackaged
food items dispensed from a machine on the premises from which finished goods
are sold directly to the consumer, and would not include prepackaged items
dispensed from a vending machine).
NOW, THEREFORE, in consideration of the mutual promises herein
contained, it is hereby agreed as follows:
1. Termination of Previous Agreement
The July 29, 1992 Previous Agreement between Licensor and
Licensee is hereby terminated. Any obligations of the parties under the Previous
Agreement which are meant to survive termination of the Previous Agreement,
<PAGE>
including the obligations to pay royalties due and indemnify for certain acts,
shall remain in full force notwithstanding termination.
2. Grant of License
a. Articles: Upon the terms and conditions hereinafter set
forth, Licensor hereby grants to Licensee and Licensee hereby accepts the
exclusive right, license and privilege of utilizing the Trademark solely in
connection with the development, manufacture, contract manufacture, marketing,
sale and distribution of Articles; provided however, that Licensee is not
authorized to use the Trademark in connection with any Articles distributed as
premiums or otherwise to be used as aids in the advertisement or promotion of
any products or business of others (other than the sale of Articles). Subject to
Licensor's prior written approval, which approval shall not be unreasonably
withheld, Licensee shall have the right to have third parties manufacture such
Articles for Licensee so long as such third parties agree in writing to comply
with the quality control provisions and any other provisions relevant to such
third party set forth in this Agreement. Any third party manufacturer not
disapproved by Licensor within fifteen (15) business days after receipt by
Licensor of Licensee's written request for such approval shall be deemed
approved pursuant to this paragraph. Licensor acknowledges that Licensee may
elect to have Articles manufactured by third parties who are also retailers of
the Articles, and that the Articles may be manufactured by and sold
<PAGE>
to some or all of such third party manufacturer/retailers without
Licensee taking actual physical possession of such Articles
b. Exclusivity: Subject to the terms of this Agreement,
Licensor agrees that it will not use or license to anyone else the right to use
the Trademark in the Territory, in connection with the Articles.
c. Reservation: Notwithstanding paragraphs (a) and (b)
above:
(i) It is understood Licensor reserves to itself
the right to use and license to others the
right to use the Trademark in connection with
any products and/or services not included
within the definition of Articles, including
but not limited to, (v) machine dispensed
frozen yogurt, (w) machine dispensed ice
cream, (x) other machine dispensed items, (y)
bulk mixes for making machine dispensed frozen
yogurt, machine dispensed ice cream and other
machine dispensed items, and (z) any
refrigerated products, including refrigerated
products of similar or same description as the
Articles (but not frozen). Also, Licensor
reserves the right to allow retailers
(including Licensor) to pack in retail
premises excess machine dispensed frozen
<PAGE>
yogurt, machine dispensed ice cream and
other items which are machine dispensed in
appropriately labeled containers using the
Trademark for retail sale to consumers from
the premises on which such products were
machine dispensed.
(ii) In addition, Licensor reserves to itself the
right to use or license to others to use the
Trademark as the name of a retail business of
any type which sells frozen yogurt, ice cream
or frozen novelties including but not limited
to restaurants, ice cream counters and carts
and frozen yogurt counters and carts;
provided, however, this provision shall not
preclude Licensee from selling Articles using
the Trademark to such businesses should such
businesses desire to sell said Articles.
d. Territory: This Agreement is limited to the United States,
its territories and possessions (including Puerto Rico) and Canada.
3. Royalty
a. Rate: Licensee agrees to pay to Licensor a royalty of
_______________** on the Licensee's Gross Revenues of Articles sold by Licensee
using the Trademark; provided, however, no royalty shall be due on Articles sold
<PAGE>
to Licensor using the Trademark so long as said Articles are sold to Licensor at
Licensee's lowest wholesale price. In connection with any Articles sold and/or
distributed by Licensee to a related company of Licensee at a price lower than
the price otherwise charged to the trade, the royalty payable herein shall be
based on what the Gross Revenues of the sales of the Articles would have been if
the company was not related to Licensee. As used herein "Gross Revenues" means
the gross sales price invoiced by Licensee to purchasers of the Articles minus
any credits or allowances given as a result of the return or destruction of such
Articles, any off-invoice allowances (but not promotional billback allowances),
and any applicable sales or use taxes. For all purposes of this Agreement, the
royalty shall accrue on the sale of the Articles and the Articles shall be
considered sold when shipped or billed out, whichever occurs earlier.
b. Royalty Payments and Records: Licensee agrees to keep full,
accurate and complete books of account, and other records in sufficient detail
so that the royalty payable hereunder may be ascertained properly. Within thirty
(30) days after the end of each of Licensor's fiscal quarters which commence
June 1, September 1, December 1 and March 1, Licensee shall furnish to Licensor
complete and accurate statements of sales of Articles using the Trademark during
such previous fiscal quarter certified to be accurate by the chief financial or
accounting officer of Licensee showing the number, description, Gross Revenues
<PAGE>
of such Articles and permitted deductions therefrom. Such statements shall be
furnished to Licensor whether or not any of the Articles utilizing the Trademark
have been sold during the preceding quarter and whether or not a royalty is due.
Each such report shall be accompanied by a check for the amount of royalty
payments due with respect to the period covered by such report. The receipt or
acceptance by Licensor of any of the statements furnished pursuant to this
Agreement or of any royalties paid hereunder (or the cashing of any royalty
checks paid hereunder) shall not preclude Licensor from questioning the
correctness thereof at any time, and in the event that inconsistencies or
mistakes are discovered in such statements or payments, they shall be rectified
and the appropriate payments made by Licensee upon demand by Licensor. Any
royalty payments, including accrued royalties, and audit findings, not paid when
due shall be paid immediately upon demand and shall bear interest at an annual
rate of two percent (2%) over the rate of interest publicly announced by
Citibank, N.A. in New York as its base rate in effect as of the date on which
such overdue royalty amount should have been paid to Licensor.
Licensee agrees, upon request by Licensor, to permit Licensor or
its authorized representative to have access to such books or records as may be
necessary to determine the royalty in respect to any accounting period covered
by this Agreement and obtain any information as to the amount payable in case of
failure to report. Such audits shall be at the expense of Licensor unless
<PAGE>
they show that Licensee has understated the royalties by five percent (5%) or
more or Five Thousand Dollars ($5,000) (whichever is greater) for any quarter,
in which case Licensee shall reimburse Licensor for its out-of-pocket expenses
incurred in connection with the audit as well as pay to Licensor the required
amount of additional royalties. All books of account and records shall be kept
available by Licensee for at least two (2) years after the submission of the
relevant statement.
4. Licensor's Authorized Representative
Wherever Licensee is directed to furnish or supply to or
otherwise take some action or perform some obligation in respect of Licensor in
this Agreement, the term "Licensor" shall be deemed to include "or Licensor's
authorized representative" unless written advice to the contrary is received
from Licensor.
5. Goodwill. etc.
a. Licensee recognizes the great value of the goodwill
associated with the Trademark and acknowledges that the Trademark and all rights
therein and the goodwill pertaining thereto belong exclusively to Licensor.
Licensee agrees not to contest Licensor's rights in the Trademark or perform any
material act or omission adverse to said rights.
b. Licensee hereby agrees that its every use of the Trademark
shall inure to the benefit of Licensor, and that Licensee shall not at any time
<PAGE>
acquire any rights in the Trademark by virtue of any use it may make of the
Trademark other than the licensed rights granted herein.
c. Subject to being reimbursed for its out of pocket expenses,
Licensee agrees to cooperate fully and in good faith with Licensor for the
purpose of securing, preserving and protecting Licensor' s rights or any grantor
of Licensor's rights in and to the Trademark.
d. Licensee agrees that it will use the Trademark only on the
specific Articles herein licensed, and that it will not adopt or use as its own
a trademark the same or similar to the Trademark.
e. Licensor shall have the right, but shall not be under any
obligation to use the Trademark and/or the name of Licensee so as to give the
Trademark, Licensee, Licensor and/or Licensor's products full and favorable
prominence and publicity. Licensor shall not be under any obligation whatsoever
to continue using the Trademark in connection with its products or services.
f. Licensee acknowledges that its failure (except as otherwise
provided herein) to cease the manufacture, sale or distribution of Articles
utilizing the Trademark covered by this Agreement on the termination or
expiration of this Agreement will result in immediate and irremediable damage to
Licensor and to the rights of any subsequent licensee. Licensee acknowledges and
admits that there is no adequate remedy at law for such failure to cease the
<PAGE>
manufacture, sale or distribution, and Licensee agrees that in the event of such
failure, Licensor shall be entitled to equitable relief by way of temporary and
permanent injunctions and such other and further relief as any court with
jurisdiction may deem just and proper.
g. Licensee shall report to Licensor in writing any
infringement or imitation of the Trademark it becomes aware of on Articles or
products similar to Articles. Licensor shall have the sole right to determine
whether to institute litigation upon any such infringements as well as the sole
right to select counsel. In the event Licensor decides to institute such
litigation, Licensor shall offer Licensee an opportunity to voluntarily join in
any such action. In the event that Licensee voluntarily joins in any such
action, the expenses and any damages awarded as the result of a lawsuit or
settlement reached as a result of a lawsuit shall be split fifty/fifty (50/50)
by the parties after the out-of-pocket expenses have been reimbursed. In the
event that Licensee chooses not to voluntarily join in any such action, Licensor
shall be free to join Licensee as a party thereto and Licensee agrees to
cooperate with Licensor in any such suit subject to being reimbursed for its
out-of-pocket expenses. If Licensee does not join the suit voluntarily, all
expenses shall be borne by licensor, and all recoveries and awards shall be
fully retained by Licensor. If Licensor decides not to institute such
litigation, it may authorize, within its sole discretion, Licensee to institute
such litigation in which event Licensee shall be solely responsible for
<PAGE>
the costs of such litigation and shall be entitled to keep any recoveries
therefrom.
6. Indemnification and Product Liability Insurance
a. Licensee hereby indemnifies Licensor and undertakes
to defend Licensee and/or Licensor against and hold Licensor harmless from any
claims, suits, damages, out-of-pocket expenses (including legal fees and
out-of-pocket expenses) and losses arising from the activities of Licensee under
this Agreement (other than the use of the Trademark as authorized herein)
including, but not limited to, the unauthorized use of any patent, process,
idea, method or device by Licensee in connection with the Articles covered by
this Agreement. Licensee agrees that it will obtain and maintain throughout the
term of this Agreement, at its own expense, liability insurance including
product liability with a broad form vendors endorsement from an insurance
company reasonably acceptable to Licensor providing adequate protection (at
least in the amount of Ten Million Dollars ($10,000,000)) against any claims,
suits, damages, expenses or losses arising out of Licensee's operations pursuant
to this Agreement. Such insurance shall include coverage of Licensor and its
directors, officers, agents, employees, assignees and successors. As proof of
such insurance, a certificate of insurance naming Licensor as an additional
insured party will be submitted to Licensor by Licensee for prior approval
before any Articles using the Trademark are distributed or sold, and at the
<PAGE>
latest within thirty (30) days after the date first written above. Licensor
shall be entitled to a copy of the prevailing certificate(s) of insurance which
shall be furnished to Licensor by Licensee. Licensee and its insurer shall
provide Licensor with thirty (30) days advance notice in the event of the
cancellation of said insurance.
b. Licensor hereby indemnifies Licensee and undertakes to
defend Licensee and hold Licensee harmless from any Trademark infringement
claims, suits, damages, out-of-pocket expenses (including legal fees and
out-of-pocket expenses) and loses arising solely out of Licensee's use of the
Trademark only in connection with Articles which have been approved under the
terms of this Agreement, but not in connection with Articles referred to as
"frozen dessert specialties" in the third WHEREAS clause of this Agreement.
7. Quality of Merchandise
a. Licensee agrees that the Articles covered by this Agreement
shall be of high standard and of such style, appearance and quality as to be
adequate and suited to their advantageous exploitation and to the protection and
enhancement of the Trademark and the goodwill pertaining thereto, that Licensee
will manufacture, sell and distribute the Articles in accordance with all
applicable Federal, State and local laws and that the policy of sale,
distribution, and/or exploitation by Licensee shall be advantageous and of high
standard and that the same shall in no manner reflect adversely upon the good
<PAGE>
name of Licensor or any of its activities or the Trademark. To this end,
Licensee shall, before selling or distributing any Articles covered by this
Agreement, furnish to Licensor, free of cost for its written approval, a
reasonable number of each of the Articles. The quality and style of such
Articles shall be subject to the approval of Licensor which approval shall not
be unreasonably withheld or delayed. At the request of Licensor, Licensee shall
supply to Licensor any manufacturing information requested by Licensor to help
Licensor in evaluating the quality and style of such Articles. Any Articles
submitted to Licensor and not disapproved by Licensor within fifteen (15)
business days of its receipt by Licensor shall be deemed to have been approved
pursuant to this paragraph. Licensee warrants that the Articles manufactured,
distributed and sold by Licensee, if applicable, and its contact packers and the
manufacturing and sanitation practices used by Licensee, if applicable, and its
contract packers to produce the Articles will comply with all applicable
Federal, State and local laws, including, but not limited to, manufacturing
codes, and that Licensee will not manufacture the Articles from inherently
dangerous materials or substances and will not design the Articles so as to
constitute any inherent danger. After samples of the Articles have been approved
pursuant to this paragraph, Licensee shall not depart therefrom in any material
way without Licensor's prior written consent, and Licensor shall not withdraw
its approval of the approved Articles or of any approved plant except for good
<PAGE>
cause when Licensor may in good faith have reason to believe that the approved
Articles or the manufacture of Articles by the approved plant may be detrimental
to the health or safety of the public. Licensor acknowledges that (i) the plants
operated as of the date of this Agreement by___________________________________
_______________________________________________________________________________
_____________________________________________________________________________**
are acceptable to Licensor as of the date of this Agreement, and (ii) the
Articles using the Trademark being manufactured by the above mentioned plants
meet the specified approved standards for quality and style, as of the date of
this Agreement. From time to time after Licensee has commenced selling the
Articles and upon Licensor's written request, Licensee shall furnish, without
cost to Licensor, the requested reasonable amount of samples of the Articles
being manufactured and sold by Licensee hereunder. Also, Licensor, through such
agents or representatives, as it may designate shall have access to Licensee's
facilities and the facilities of Licensee's contract manufacturers where the
Articles are manufactured, at reasonable times and with reasonable advance
notice given during normal business hours, for the purpose of inspecting the
Articles to the extent necessary to determine whether Licensor's quality
standards are being met.
b. Licensee shall have the sole responsibility with
respect to the Articles for taking action, maintaining records or
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handling recalls and all costs associated therewith under the Consumer Products
Safety Act, the Federal Food, Drug and Cosmetic Act or any other similar acts,
orders or directives.
c. Subject to the terms of this Agreement, Licensor
acknowledges that Licensee shall have the right to make adjustments to its
formulas for the Articles and to develop and market new Articles using the
Trademark. Licensee's Formulas for the Articles shall remain the property of
Licensee after expiration or termination of this Agreement.
8. Confidentiality
Both parties shall keep confidential and shall not cause or permit
the disclosure to any third party, other than those whose duties require
possession of such information, such as contract manufacturers and sublicensees,
of any confidential information disclosed by either party to the other pursuant
to this Agreement. Confidential information may include, but is not limited to
formulas, production processes, search, marketing, and sales information. Said
confidentiality requirement shall not apply to any information which (a) was in
the possession of a party on a nonconfidential basis prior to the receipt of any
disclosure to it by the other party, or (b) is or becomes, without disclosure by
a party, part of the public knowledge or literature, or (c) otherwise lawfully
becomes available to a party, from sources other than the other party, which
sources did not acquire such information directly from the party, or (d) counsel
<PAGE>
to the party advises must be disclosed pursuant to a court order or by law or
regulation or appropriate governmental authority.
9. Labeling, Promotion, Advertising and Use
a. Licensee shall submit to Licensor for its prior
written approval all new proposed tags, labels, containers, packaging,
advertising, promotional or display materials or the like containing or
referring to the Trademark, which approval shall not be unreasonably withheld or
delayed. Any item submitted to Licensor and not disapproved by Licensor within
ten (10) business days of its receipt by Licensor shall be deemed to have been
approved pursuant to this paragraph. Licensor acknowledges that the items
referred to above which Licensee currently uses with Articles using the
Trademark are acceptable to Licensee.
b. Licensee agrees that it will apply the proper reasonable
notations, as specified by Licensor, indicating that the Trademark is owned by
General Mills, Inc. and used with its permission on all tags, labels,
containers, packaging, advertising, promotional or display materials or the like
containing or referring to the Trademark.
c. Licensee warrants that all tags, labels, containers,
packaging, advertising, promotional or display materials or the like containing
the Trademark will comply with all applicable Federal, State and local laws.
d. Licensee may use another brand name or trademark on
the Articles in connection with the Trademark subject to the approval of
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Licensor as set forth in paragraph 9 (a) hereof. Such other brand names or
trademarks shall remain the property of Licensee after the expiration or
termination of this Agreement unless previously owned by Licensor.
10. Term and Termination
a. The term of this Agreement shall commence on the date first
written above and shall end on December 31, 2015, unless sooner terminated in
accordance herewith.
b. If this Agreement has not been otherwise terminated,
Licensee shall have the option of extending this Agreement until December 31,
2020 by giving written notice thereof to Licensor by September 30, 2015,
provided that Licensee pays Licensor _______________** by December 31, 2015.
This payment is independent of any royalties which may be due Licensor
hereunder. If, however, the sublicense agreement between Licensor and Licensee
relating to the YOPLAIT trademark is terminated in year 2002, Licensee shall
only be required to pay Licensor ________________________** independent of any
royalties owed in order to extend this Agreement. Should the YOPLAIT Trademark
Sublicense Agreement be terminated in year 2015, then Licensee shall only be
required to pay Licensor _______________________** independent of any royalties
owed in order to extend this Agreement. In the event Licensee does not furnish
written notice of extension to Licensor by September 30, 2015, Licensor shall
<PAGE>
notify Licensee that this Agreement shall terminate on December 31, 2015, unless
Licensee provides Licensor with written notice of its intention to extend within
fifteen (15) business days after Licensee's receipt of such written notice. In
the event Licensor does not furnish such written notice to Licensee before
December 12, 2015, this Agreement shall continue in effect after December 31,
2015 until such time as Licensor shall notify Licensee that this Agreement shall
terminate unless Licensee provides Licensor with written notice of its intention
to extend within fifteen (15) business days after Licensee's receipt of such
notification, along with payment in full of the amount due, plus interest on
such amount at the rate specified in paragraph 3 (b) in effect as of December
31, 2015, with such interest accruing from and after that date.
c. Licensor may terminate this Agreement if Licensee shall be
in material default of any obligation to Licensor hereunder including, but not
limited to obligations set forth in paragraphs 2,4, 5, 6, 8, 10 and 14, by
giving written notice to Licensee calling attention to such default, specifying
the nature thereof and the action required to correct the default and stating
that this Agreement will terminate at the expiration of thirty (30) days from
the date of the receipt by Licensee of such notice, if such default arises out
of paragraph 3 hereof, and forty five (45) days for any other default, unless
Licensee shall cure such default within said thirty (30) or forty five (45) day
period, as applicable, after the receipt of such notice, or if such default
<PAGE>
cannot be cured within said thirty (30) or forty five (45) day period, as
applicable, of the receipt of such notice, Licensee, exercising due diligence,
has commenced taking the steps necessary to prevent the recurrence of such
default and is diligently pursuing such steps. Failure of Licensor 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 such default or
breach, either of the same or different character.
d. If for any consecutive twelve (12) month period Licensee is
not engaged in manufacturing or selling any Articles using the Trademark in the
Territory, Licensor shall have the right to terminate this Agreement by giving
written notice to that effect. Licensee shall have two (2) months from the date
of the receipt of the written notice to commence manufacturing or selling
Articles using the Trademark and in the absence of which this Agreement shall
automatically terminate at the end of said two (2) month period. Licensee agrees
to give Licensor prompt written notice of its intention to discontinue marketing
Articles under the Trademark.
e. The license hereby granted shall automatically terminate
forthwith without any notice whatsoever being necessary if Licensee discontinues
its business or Licensee voluntarily submits to, or is ordered by the bankruptcy
court to undergo, liquidation pursuant to Chapter 7 of the bankruptcy code. In
<PAGE>
the event this license is so terminated, Licensee, 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 Articles
covered by this Agreement, or any carton, container, packaging or wrapping
material, advertising, promotional or display materials pertaining thereto,
except with and under the special consent and instruction of Licensor in
writing, which they shall be obligated to follow. Should Licensee file a
petition in bankruptcy or is otherwise adjudicated a bankrupt or if a petition
in bankruptcy is filed against Licensee and the Articles are attached and such
petition is not discharged or dismissed or if an involuntary receiver is
appointed for it or its business within ninety (90) days thereafter, this
Agreement shall automatically terminate, in each case, if and when, but only if,
a bankruptcy or other court of appropriate jurisdiction sells, assigns or
otherwise causes this Agreement to be transferred to (1) a business which is a
material competitor to any of General Mills' businesses or (2) a business which
derives a material portion of its revenues from tobacco or from alcoholic
beverages, or from pornography or other explicit sexually related material, or
which has been convicted of a felony or whose chief executive, financial or
operating officer in his or her role as an officer of the company has been
convicted of a felony, or which does not meet Licensor's advertising standards
as set forth in the attached Schedule.
<PAGE>
f. Termination of this Agreement for any reason shall not
release either party from any part of any obligation accrued prior to the date
of such termination, or obligations continuing beyond termination of the
Agreement.
g. Termination of this Agreement for any reason shall be
without prejudice to any rights which either party may otherwise have against
the other.
h. Upon expiration or termination of this Agreement for any
reason other than failure to comply with the requirements of paragraph 10 (e) of
this Agreement, Licensee shall have a period of three hundred sixty five (365)
days after the date of termination in which to phase out its use of the
Trademark provided all Articles to be sold, and all uses of the Trademark, by
Licensee during such three hundred sixty-five (365) day period are in compliance
with the requirements of paragraphs 7 and 9 hereof. Licensee shall report to
Licensor with respect to such sales and make the requisite royalty payment
within thirty (30) days after the end of each month during the aforesaid three
hundred sixty five (365) day period. All duties and obligations of the Licensee
under this Agreement shall remain in force during the sell-off period.
11. Distribution
a. Licensee agrees to exercise good faith reasonable efforts
in the performance of this Agreement.
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b. Licensee agrees to sell and distribute the Articles covered
by this Agreement at a competitive price and not on an approval or consignment
basis to retail stores.
c. Licensee agrees to keep Licensor informed on a regular
basis of Licensee's activities in manufacturing and marketing the Articles
covered by this Agreement.
12. Force Majeure
No failure or omission by Licensee in the performance of any
obligation of this Agreement shall be deemed a breach of this Agreement nor
create any liability if the same shall arise from any cause or causes beyond the
reasonable control of Licensee.
13. Warranty and Consumer Response
Licensee will, at no cost to Licensor, handle all warrantee
(guarantee) satisfaction, response and compliance and all consumer response
relative to any of the Articles. Licensor shall promptly forward to Licensee,
for handling, any and all such consumer inquires that it receives. Licensee
shall use reasonable efforts to keep Licensor generally informed of consumer
complaints relative to the Articles.
14. No Joint Venture
Nothing herein contained shall be construed to place the parties
in the relationship of partners or joint venturers, and neither party shall have
the power to obligate or bind the other in any manner whatsoever.
<PAGE>
15. Assignment, Sublicense or Change of Control
a. This Agreement and all rights and duties hereunder are
personal to Licensee. Licensee may assign this Agreement to any third party,
provided such third party is not a major competitor of Licensor.
b. Licensor may assign this Agreement to any third party,
provided that such third party is also assigned all of Licensor's right, title
and interest in the Trademark as applied to Articles and Licensor shall furnish
written notice of such assignment to Licensee.
c. Except as provided below, any change in direct or indirect
control over Licensee or any assignee of rights of Licensee under this Agreement
shall not be subject to the prior written approval of Licensor. The term
"assignee" in the preceding sentence shall not include contract manufacturers.
However, the occurrence of any of the following events shall not be permitted:
(i) any major competitor becomes the beneficial
owner, directly or indirectly, of a majority
of the issued and outstanding shares of
Licensee entitled to vote for the election of
directors;
(ii) the stockholders of Licensee approve an
agreement providing for a transaction in
which Licensee will cease to be an
independent corporation and the entity which
will control it is a major competitor of
<PAGE>
Licensor, or pursuant to which Licensee sells or
otherwise disposes of all or substantially
all of the assets of Licensee to a major
competitor of Licensor.
16. Notices
All notices to be made hereunder shall be in writing sent via
certified, overnight or registered mail (return receipt requested). Any Articles
or materials submitted for approval under this Agreement shall not be governed
by the mailing type requirements of this Notice provision. Such notices and
statements 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 or
statement is received:
To Licensor: To Licensee:
General Mills, Inc. Integrated Brands Inc.
Number One General Mills Boulevard 4175 Veterans Highway
Minneapolis, MN 55426 Ronkonkoma, New York 11779
Attn: Trademark Counsel Attn: Gary P. Stevens, President
cc: General Counsel cc: Benjamin Raphan, Esq.
General Mills, Inc. Tenzer Greenblatt LLP
Number One General Mills 405 Lexington avenue
Boulevard New York, New York 10174
Minneapolis, MN 55426
17. No Waiver. Etc.
None of the terms of this Agreement can be waived or modified
except by an express agreement in writing signed by both parties. There are
<PAGE>
no representations, promises, warranties, covenants or undertakings other than
those contained in this Agreement and in the other agreements between the
parties hereto dated as of even date herewith which represent the entire
understanding of the parties.
18. Choice of Law
This Agreement shall be governed by and construed in accordance
with the internal laws (and not the law of conflicts) of the State of Minnesota.
The parties hereto agee to submit to jurisdiction in the State of Minnesota, and
further agree that any court proceeding relating to any controversy arising
under this Agreement shall be in the federal court located in Hennepin County in
the State of Minnesota.
19. Submission of Agreement
This Agreement shall become effective only upon its execution by
Licensor and Licensee.
IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be duly executed as of the date and year first above written.
GENERAL MILLS, INC.
Dated: August 15, 1995 By: /s/ Gary M. Rodkin
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Senior Vice President
INTEGRATED BRANDS INC.
Dated: August 15, 1995 By: /s/ Richard E. Smith
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Chairman and CEO
