共同ブランドで製品を販売するためのコ・ブランディング・ライセンス契約書:The Dannon CompanyとYoCream International

概要:乳業のYoCreamがDannon社の商標(ロゴ)を使用し、特定製品を販売するためのライセンス契約。
再実施権:付与無し
ロイヤルティ率:該当製品正味販売額の4%
SICコード:2000(Food & Kindred Products(食料品))


CO-BRAND LICENSE AGREEMENT

     THIS CO-BRAND LICENSE AGREEMENT (“Agreement”) is made as of the 6th day of

September, 2001 (the “Effective Date”), by and between The Dannon Company,

Inc., with its principal place of business at 120 White Plains Road, Tarrytown,

NY 10591-5536 (hereinafter referred to as “Dannon”), and YoCream International,

Inc., with its principal place of business at 5858 N.E. 87th Avenue, Portland,

OR 97220-1312 (hereinafter referred to as “YoCream”).

                                WITNESSETH

     WHEREAS, Dannon is the owner of the trademark “DANNON” and certain logos

and other marks which incorporate such trademarks, as shown on Exhibit “B”

hereto; and

     WHEREAS, YoCream is the owner of the trademark “YOCREAM” (“YoCream Mark”)

and manufactures and sells mix for making soft frozen yogurt under the YoCream

Mark; and manufactures and sells mixes for other soft frozen yogurt under other

brands, and co-packing and private branding arrangements with others; and

     WHEREAS, the Parties desire to enter into the arrangement contemplated by

the Asset Purchase Agreement whereby soft frozen yogurt will be manufactured,

marketed and sold by YoCream under a co-brand determined as provided in Section

1.1(a) in the definition of “Co-Brand”; and

     WHEREAS, to obtain from Dannon a license to use the Dannon trademark in

connection with such manufacture, marketing and sale of the soft frozen yogurt

product, YoCream recognizes the vital importance of protecting Dannon’s

exclusive and valuable rights in and to said trademark and the goodwill

symbolized thereby.

     NOW, THEREFORE, in consideration of the covenants and promises hereinafter

contained, Dannon and YoCream hereby agree as follows:

                                ARTICLE 1

                               DEFINITIONS

     l.l. Definitions. For purposes of this Agreement, the following terms

shall be defined as follows:

(a)   “Co-Brand” means such trademark and/or branding which

      incorporates the Mark (as hereafter defined) and the YoCream

      Mark as the Parties may hereafter mutually agree upon.  Without

      limiting either party’s discretion in determining whether or

      not to agree to a specific proposed “Co-Brand,” the parties

      currently anticipate that the Co-Brand would be in the spirit

      of that reflected on Exhibit “A,” incorporated herein by

      reference.

(b)            “License Year” means the period commencing on the Effective

      Date and ending on the anniversary thereof for any calendar

      year that this Agreement is in effect.

(c)            “Mark” means Dannon’s federally registered trademark,

      Registration Number 2,304,910 and Application No. 75/029,984

      and Dannon’s logo as set forth in Exhibit “B” hereto,

      incorporated herein by reference.

(d)            “Net Sales” means YoCream’s invoice price for the Product to

      the customers, less any applicable variable distribution

      charges, rebates paid to the customer, any Product related

      deduction taken by the customer in the course of business, and

      cash payment term discount applicable to such customers as of

      the Effective Date of this Agreement as mutually agreed by the

      Parties on a customer by customer basis. Invoices will be

      included in the royalty calculation after the invoice has been

      paid in full, including rebates or other approved Product

      related deductions.

(e)   “Party” or “Parties” means Dannon and/or YoCream.

(f)            “Product” means any and all soft frozen yogurt mix manufactured

      and directly or indirectly sold by or on behalf of YoCream to

      YoCream’s customers under the Co-Brand.

(g)            “Royalty” means the royalty of four percent (4%) on Net Sales

      of Product to any customer of YoCream.

(h)            “Term” means the period commencing on the Effective Date and

      expiring on the fifth anniversary thereof, subject to any

      extension thereof pursuant to Section 2.2 of this Agreement.

(i)            “Territory” means the fifty States of the United States and its

      territories.

                                ARTICLE 2

                             GRANT OF LICENSE

     2.1 Grant. Subject to the terms and provisions set forth in this

Agreement, Dannon hereby grants to YoCream, and YoCream hereby accepts, a non-

transferable, non-assignable license, to use the Mark during the Term solely in

connection with the manufacture, marketing and sale of the Product, but only as

incorporated into, or used in conjunction with, the Co-Brand. YoCream hereby

agrees not to use the YoCream Mark in connection with any soft frozen yogurt

mix other than in conjunction with the Co-Brand hereafter manufactured,

marketed or sold by YoCream in the Territory during the term of this Agreement.

     2.2  Term.  The initial Term of this Agreement shall be for a period of

five (5) years commencing as of the Effective Date and ending as of September

6, 2006.  At the request of either party, one year prior to the end of the

initial (or then current renewal) Term, the parties shall meet to discuss

extending the Term.  The Term of this Agreement may be extended only by mutual

agreement of the parties.  However, the Agreement shall expire at the end of

the initial or then current renewal) Term if the parties have not agreed to an

extension on or prior to close of business on such date as is 180 days prior to

the end thereof (with respect to the initial Term, March 10, 2006)

     2.3  Limitations on Use. YoCream has no right to nor shall it use the Mark

with any items other than the Product in the form and composition in existence

on the Effective Date or as otherwise approved by Dannon. YoCream has no right

to use the Mark in connection with the sale of the Product outside of the

Territory or to any person or entity which YoCream knows or has reason to know

(based upon facts known to its management, but without any independent

obligation to investigate) will sell or market the Product outside the

Territory unless otherwise agreed between the Parties.

     2.4  Limitations on Licensing. During the Term, Dannon will not license,

or in any other manner grant permission, to any other person or entity to use

the Mark on any other soft frozen yogurt product in the Territory.

Notwithstanding this provision, Dannon reserves and shall have the right to

grant to any other person or entity the right to use the Mark as long as such

use is not in connection with a soft frozen yogurt product in the Territory,

and no consent or permission of YoCream shall be necessary.

     2.5  Use of Other Trademarks. During the Term of this Agreement, neither

YoCream nor any subsidiary or affiliate of YoCream will use within the

Territory any mark or name except the Co-Brand on the Product or in connection

with advertising or promotional materials for the Product.  Further, neither

YoCream nor any subsidiary or affiliate of YoCream will use within the

Territory any mark or name except the Co-Brand on soft frozen yogurt; provided,

however, YoCream may sell soft frozen yogurt under its owned YOGURT STAND and

PRIVATE BRAND marks (with such soft frozen yogurt as currently formulated with

minor adjustments being acceptable, when sold under such marks), and under

private label and co-packing arrangements.  YoCream will use its best efforts

to cause customers currently purchasing soft frozen yogurt mix for sale under a

brand other than the Co-Brand to convert to the Product and/or to otherwise

sell such soft frozen yogurt to consumers under the Co-Brand, subject to the

terms of this Agreement (including without limitation, the quality standards

set forth herein).

     Notwithstanding the foregoing limitations, this Section 2.5 shall not

prohibit YOCREAM nor or any of its subsidiary or affiliate companies from

investing in or acquiring an entity which sells soft frozen yogurt if the soft

frozen yogurt sold by such entity is not under the YOCREAM Mark and after the

investment or acquisition YOCREAM uses its best efforts to cause customers then

purchasing soft frozen yogurt mix from such entity to convert to the Product

and/or to otherwise sell such frozen yogurt to consumers under the Co-Brand,

subject to the terms of this Agreement (including without limitation, the

quality standards set forth herein).

     2.6  Registration of Co-Brand by Mutual Consent. Neither Party shall apply

for formal registration of the Co-Brand with the United States Patent and

Trademark Office, or any other governmental entity, without the prior written

consent of the other Party, and in any event, the parties will be co-registrants

of the Co-Brand.  Neither party shall commercially use, or permit the commercial

use of, the Co-Brand upon termination of this Agreement, except as permitted in

Section 8.6 hereof.

                                ARTICLE 3

                             QUALITY CONTROL

     3.1 Quality Control; Inspections; Approvals.  In order to protect the

goodwill and reputation associated with the Mark, YoCream covenants, agrees,

represents and warrants as follows, at a minimum that:

     (a) The nature and quality of the Product; all services rendered by

YoCream in connection with the Product and the Co-Brand; all goods sold under

the Co-Brand; and all related advertising, packaging, labels, publicity

materials and promotional materials used by YoCream in connection with the

Product, the Co-Brand or the Mark shall conform to the standards established

and/or approved by Dannon, including but not limited to any health,

cleanliness, sanitation and/or quality standards, and including but not limited

to those set forth in the YoCream Quality Requirements Manual as set forth in

Exhibit “C” hereto (as updated from time to time upon written notice to

YoCream). Without limiting the foregoing, Dannon shall have the right to

approve or disapprove any changes in, additions to or deletions of flavors,

line extensions or SKU’s in which the Product is manufactured, marketed and

sold.

     (b) Notwithstanding any other provision of this Agreement, Dannon shall

have no liability to YoCream or third parties with respect to the Product

manufactured or sold by YoCream, its agents, contractors or sub-contractors or

its customers.

     (c) YoCream will abide by any laws, rules, regulations or general industry

standards governing the operation of a food business, including, but not

limited to, procedures on health, cleanliness and sanitation.

     (d) All future products produced under this Agreement will be of the

quality and nature equivalent to, or better than, those approved by Dannon as a

result of Dannon’s testing of the Product prior to entering into this

Agreement.

     (e) YoCream shall cooperate with Dannon in facilitating Dannon’s control

of such nature and quality by permitting Dannon, as Dannon requests, to inspect

YoCream’s manufacturing facilities (or those of any contract manufacturer

utilized by YoCream) or other facilities of YoCream and by supplying Dannon, as

Dannon reasonably requests, with specimens of use of the Product, the Co-Brand

and the Mark, and of all materials showing the Product and/or services

associated with the Product, the Co-Brand or the Mark.

     (f) If an event has occurred with respect to the Product which may be

reasonably expected to damage or denigrate the Mark or to create a substantial

health risk, YoCream shall direct a market withdrawal, stock recovery and/or

recall of any such Product.  Upon mutual agreement YOCREAM shall direct a

market withdrawal, stock recovery and/or recall of any Product which does not

materially comply with the quality requirements of this Agreement.  In

addition, YoCream shall direct a recall of any Product in the event that a

recall of the Product is required, ordered or recommended by any court or

government agency or any applicable law or regulation, for any reason.  YoCream

shall bear primary responsibility for market withdrawal, stock recovery and/or

recall procedures and expenses, however the Parties agree that no royalty shall

be applicable to any Product withdrawn, recovered or recalled.  Any request for

a market withdrawal, stock recovery and/or recall by Dannon hereunder shall not

prejudice any other or additional right or remedy Dannon may have under this

Agreement.

     (g) YoCream shall submit to Dannon, without charge, for inspection and

approval by Dannon, a sample of each advertisement, package, label, tag and

piece of publicity or promotional material that uses the Mark or the Co-Brand

at each of the following stages of development: concept, mechanical or lay-out,

finished art, pre-production and final product. YoCream shall not use any

advertisement, package, label, tag, publicity or promotional material for the

Product using the Co-Brand, the Mark or the Dannon name, which has not been

approved by Dannon in writing.

     (h) Without limiting any other provision of this Agreement, the

manufacture, distribution, promotion and sale of the Product and any tags,

labels, packaging, advertising and promotional materials thereof shall comply

with all applicable laws and regulations, including but not limited to, any

industry standards.

     (i) YoCream shall not use a personality or celebrity to endorse or promote

the Product unless and until it obtains approval in writing from Dannon.

     (j) YoCream’s policy of sale and distribution of the Product shall be of

high standard and shall in no manner reflect adversely upon the good name of

Dannon or upon the goodwill and reputation associated with the Mark.

     (k) Both parties shall use their best efforts to promptly handle any

requests for approvals required under this Agreement (for example, approvals

under Section 5.3; but excluding, without limitation, amendments to this

Agreement).  Unless the Parties agree otherwise, response to requests for

approval must be given within ten (10) business days from the date of request.

Lack of such response within ten (10) business days from the date of the second

notice of such request (which second request shall not be given prior to ten

(10) business days from the date of the first request) shall constitute

approval of the request.

                                ARTICLE 4

                          OWNERSHIP OF THE MARK

     4.1 Ownership of Mark. YoCream acknowledges and agrees that:

     (a) YoCream shall acquire no ownership rights in or to the Mark by virtue

of this Agreement or otherwise and all use by YoCream of the Mark shall be

deemed to inure to the benefit of Dannon.

     (b) YoCream shall not, during the Term or thereafter, directly or

indirectly, contest or aid in contesting Dannon’s ownership of the Mark or the

validity of the Mark, and

     (c) YoCream shall not, during the Term or thereafter, do anything

inconsistent with or which impairs Dannon’s ownership of or the validity of the

Mark.

     4.2 Cooperation in Enforcing Ownership Rights.  At Dannon’s request,

YoCream will cooperate fully, at Dannon’s expense, in confirming, perfecting,

preserving and enforcing Dannon’s rights in the Mark.

     4.3 Unauthorized Use. YoCream agrees to notify Dannon of any unauthorized

use, unfair competition or other infringement by other persons relating to the

Co-Brand or the Mark promptly after it comes to YoCream’s attention.  Dannon

agrees to notify YoCream of any unauthorized use, unfair competition or other

infringement by other persons relating to the Co-Brand or the YoCream Mark

promptly after it comes to Dannon’s attention.  The Parties shall have the

right to determine what action, if any, will be taken to remedy any

infringement(s) of or related to their respective trademarks or other

intellectual property rights, either standing alone or as incorporated in the

Co-Brand.  The Parties shall not take any action with respect to such

infringements of the other party’s trademarks or other intellectual property,

standing alone, without the prior written consent of the other Party.

Notwithstanding the foregoing, the Parties agree to cooperate in good faith in

determining what action to take regarding any infringement of the Co-Brand.

                                ARTICLE 5

                  ADDITIONAL OBLIGATIONS OF YOCREAM

     5.1  Royalty Payment.  During the Term, and thereafter as provided in

Section 8.9 hereof, YoCream shall pay a Royalty payment to Dannon on the

twentieth (20th) day of each month following the Effective Date with respect to

all sales of Product made during the previous month. YoCream shall provide an

accounting with each such Royalty payment showing a breakdown of the Royalty

amount and other mutually agreed documentation. Dannon shall have the right

to question and confirm the amount of a Royalty payment or any part thereof and

the right to inspect YoCream’s books and records relating to such Royalty

payment for a period of one (1) year following such Royalty payment.

     5.2  Marketing.  YoCream agrees to use its best efforts, consistent with

its past practices and past financial expenditures, for marketing, advertising,

promoting and publicity for the Product.

     5.3 Approval of Formats, etc.  YoCream shall use the Mark only in the

composition, lettering, logos, print styles, forms and formats which have

received the prior written approval of Dannon.

     5.4 Insurance Coverage. YoCream shall obtain from a reputable insurance

carrier acceptable to Dannon liability insurance with limits not less than

$10,000,000 (U.S. dollars) (per person, per injury) in order to protect and

insure Dannon and YoCream against any claims or liabilities with which either

or both of them may be charged because of personal injuries or injuries

suffered by any person or entity, resulting from the ingestion of the Product

or the manufacture or sale thereof, whether during the Term or thereafter.

Dannon shall be named in the policy of such insurance as an additional insured

and such policy shall provide that the insurance cannot be cancelled without

the insurer giving Dannon written notice thereof at least thirty (30) days

prior to the effective date of the cancellation and that the insurance covers

the contractual liability of YoCream to Dannon under the provisions of

paragraph 5.5 below. YoCream shall maintain such insurance in full force and

effect throughout the Term and for at least three (3) years thereafter. Within

ten (10) days after the date this Agreement is executed and on the first day of

each License Year thereafter, YoCream shall deliver to Dannon a certificate of

insurance evidencing that such insurance is in full force and effect and that

it cannot be cancelled without the insurer giving Dannon written notice thereof

at least thirty (30) days prior to the effective date of the cancellation. The

insurance described in this Section shall be primary and shall not be subject

to contribution by any other insurance, which may be available to Dannon.

     5.5. Indemnity.  YoCream agrees to indemnify Dannon and its directors,

officers, employees and agents and hold them harmless from and against any and

all claims, demands, actions, liabilities, damages, losses, costs and expenses

(including attorneys’ fees) (“Damages”) arising out of or resulting from or in

connection with YoCream’s (1) performance or non-performance of its obligations

under this Agreement; or (2) negligent or willful acts or omissions (or such

actions or omissions of YoCream’s agents, employees, contractors, or

consultants). In the event that a recall of the Product is required, ordered or

recommended by any court or government agency or any applicable law or

regulation, for any reason, YoCream shall comply with such requirement, order

or recommendation and shall bear all the expenses thereof. This Section shall

survive the expiration, termination, breach or alleged breach of this

Agreement.

                                ARTICLE 6

                         DANNON’S OBLIGATIONS

     6.1  Notification of Unauthorized Use.  Dannon agrees to notify YoCream of

any unauthorized use, unfair competition or other infringement by other persons

relating to the Co-Brand or the Mark as incorporated into the Co-Brand promptly

after such infringement comes to Dannon’s attention.

     6.2 Indemnity.  Dannon agrees to indemnify YoCream and its directors,

officers, employees and agents and hold them harmless from and against any and

all Damages arising out of or resulting from or in connection with Dannon’s (1)

performance or non-performance of its obligations under this Agreement; or (2)

negligent or willful acts or omissions of Dannon (or such acts or omissions of

Dannon’s agents, employees, contractors, or consultants).  This Section shall

survive the expiration, termination, breach or alleged breach of this

Agreement.

                                ARTICLE 7

          MUTUAL NONDISCLOSURE AND CONFIDENTIALITY AGREEMENT

     7.1 Confidential Information.  The Parties acknowledge and agrees that the

idea, composition of and the methods of manufacture of the Product, as well as

product development, testing, marketing, quality standards, and any and all

other business or strategic information relating to the Product, the Co-Brand,

the Mark or the business of either Party hereto (collectively, the

“Information”), is proprietary, confidential and/or competitively sensitive and

shall be kept secret. Neither Party shall use the Information except as

contemplated by this Agreement without the prior written approval of an

authorized representative of the other Party.

     7.2 Non-Disclosure. The Parties agree that either Party may disclose the

Information to those of its directors, officers, employees and representatives

who need to know such Information for the purpose of maintaining or evaluating

the relationship between YoCream and Dannon. Prior to disclosing this

Information, however, each Party will inform the person to receive the

Information of its confidential nature and the obligations of nondisclosure and

confidentiality as defined herein in this Article 7.

     7.3 Term of Non-Disclosure Obligation. The obligations of nondisclosure

and confidentiality undertaken by each Party under this Agreement shall

continue for the Term of this Agreement and for a period of five (5) years

following the termination of this Agreement.

     7.4  Limitations. The Parties agree and acknowledge that the provisions of

Sections 7.1 – 7.3 above shall not apply to any Information which (i) at the

time of disclosure or thereafter is in the public domain or becomes generally

known to the public through no fault of either Party; (ii) was available to the

receiving Party on a non-confidential basis from a source other than the

disclosing Party, providing that such source was not known by the receiving

Party to be bound by a confidentiality agreement with the disclosing Party;

(iii) is known to the receiving Party (as evidenced by its written records)

prior to receipt thereof from the disclosing Party; or (iv) is required by a

court of competent jurisdiction or by law to be disclosed by the receiving

Party, provided that the disclosing Party is given prior written notice of such

requirement.

     7.5 Relief. The Parties hereby acknowledge that the disclosing Party will

be materially damaged and/or irreparably harmed by violation of the

confidentiality obligations contained in this Agreement, that the unauthorized

disclosure of Information to any third party may enable such party to compete

unfairly, directly or indirectly, with the business of the disclosing Party,

and that money damages will not be an adequate remedy.

     Accordingly, in the event that either Party at any time gains knowledge of

any breach of the confidentiality of, or the misappropriation of, the

Information or gains knowledge of any other violation of the confidentiality

obligations under this Agreement, such Party shall promptly give notice thereof

to the other Party.  In addition, each disclosing Party shall be entitled,

without limitation of any other remedies to which it may be entitled by law, to

injunctive relief, to specific performance of this Agreement, and to damages

(if and as appropriate) in the event of violation of this Article 7.

     7.6  Return of Documents. In the event this Agreement is terminated, or

otherwise upon the request of the disclosing Party, each receiving Party shall

promptly return to the disclosing Party all documents, notes or other materials

obtained from such other Party containing any Information (including any copies

thereof and including all documents or materials which may reference or

incorporate such Information) or, at the other Party’s direction, shall destroy

all such materials.  Further, each Party will provide the other Party with a

statement, signed by a duly authorized officer, verifying that it has complied

with the terms of this Section 7.6.

                                ARTICLE 8

                     BREACH, DEFAULT AND TERMINATION

     8.1 Termination for Cause.  Either party may terminate this Agreement at

any time if the other defaults in the performance of any of its obligations

under this Agreement.  In such event, the Party declaring the default shall

provide the other Party (“Recipient”) with written notice thereof setting forth

the nature of the default, and:

     (a) Recipient shall have ten (10) days from the date of the notice to cure

monetary defaults; provided however, in the event of more than two monetary

defaults by YoCream occurring in any calendar year, Dannon may terminate this

Agreement in such calendar year immediately without providing YoCream an

opportunity to cure such default; or

     (b) Recipient shall have twenty (20) days from the date of the notice to

cure a non-monetary default (other than a default described in Section 8.1(c)),

provided, however, that if the nature of the alleged fault is such that it

cannot reasonably be cured within twenty (20) days, the Recipient may cure such

default by commencing in good faith to cure such default promptly after its

receipt of such written notice and prosecuting the cure of such default to

completion with diligence and continuity within a reasonable time thereafter; or

     (c) in the event YoCream shall at any time materially breach or be in

material default of any of the provisions set forth in Section 3.1(a) – (j) of

this Agreement (a “Quality Default”), YoCream shall have ten (10) business days

from the date of Dannon’s notice to YoCream of such Quality Default to cure it;

provided however, however, Dannon may terminate this Agreement immediately,

without providing YoCream an opportunity to cure, in the event of a third

Quality Default in any five (5) year term.

     8.2  Termination in Event of Bankruptcy, etc. This Agreement shall

terminate automatically upon notice to a Party, in the event that with respect

to such Party: (a) there is an expropriation, confiscation or nationalization

by any government of a substantial portion of its assets or property; (b) it

becomes insolvent; (c) it seeks relief as a debtor under any applicable

bankruptcy law or other law relating to the liquidation or reorganization of

debtors or to the modification or alteration of the rights of creditors or

consents to or acquiesces in such relief; (d) it makes an assignment for the

benefit of, or enters into a composition with, its creditors; (e) it

appoints or consents to the appointment or receiver or other custodian for all

or a substantial part of its assets or property; (f) a petition seeking to have

it declared or adjudicated bankrupt or insolvent under any applicable

bankruptcy or similar law is not dismissed within sixty (60) days after filing;

(g) an order or judgment is entered by a court of competent jurisdiction for

relief against it in any case commenced under any bankruptcy or similar law or

finding it to be bankrupt or insolvent or ordering or approving its

liquidation, reorganization or any modification of the rights of its creditors

or appointing a receiver, guardian or other custodian for all or a substantial

part of its assets or property; or (h) it admits its inability to pay its debts

when due.

     8.3  Termination without Cause.  After this Agreement has been in effect

for a minimum of two (2) years, either Party may terminate this Agreement

without cause upon one hundred eighty (180) days’ written notice to the other

Party.

     8.4  Transfer of Controlling Interest in Either Party.  If at any time

during the Term, including any extension, there shall occur, directly or

indirectly, a transfer of a controlling interest in either Party (other than

the transfer to an affiliate of such Party, and excluding a transfer of a

controlling interest in Groupe Danone unless the acquirer is a material

competitor to YoCream) through sale, stock transfer, merger, or otherwise, then

the other Party shall have the right to terminate this agreement upon thirty

(30) days’ prior written notice.

     8.5  No Waiver of Right to Terminate.  Either Party’s failure to exercise

or delay in exercising its right of termination hereunder for any one or more

causes shall not be deemed to prejudice its right of termination for such or

for any other subsequent cause. Termination or expiration of this Agreement for

any reason whatsoever shall not relieve the Parties from their respective

obligations accruing hereunder upon or prior to such termination or expiration.

     8.6  Certain Obligations Upon Termination or Expiration.  Upon any

expiration or termination of this Agreement:

     (a) YoCream shall within one hundred eighty (180) days following the date

of such expiration or termination (“Transition Period”) remove from, and by the

end of the Transition Period shall have ceased to use or display in any manner

the Co-Brand or the Mark in connection with the Product or any product,

package, label, tag, equipment, advertising or promotional medium of any kind

whatsoever, or any other document, device or medium; unless the Parties

expressly agree otherwise.

     (b) No royalties shall be paid during the Transition Period in the event

the Agreement is terminated before the expiration of the initial five (5) year

term unless Dannon terminated the Agreement pursuant to Section 8.1 for a

material, uncured breach by YoCream of the Agreement which is either fraudulent

or in bad faith and in a circumstance where YoCream has deliberately attempted

to frustrate the spirit and intentions of the relationship established under

this Agreement. Dannon shall have the right to audit and/or inspect YoCream’s

inventory of Product during the Transition Period.

     8.7  Non-compete Restrictions Applicable Upon Termination or Expiration.

     (a)   Except in the event that Dannon terminates this Agreement pursuant

to Section 8.1 for a material, uncured, breach by YoCream of this Agreement

which is either fraudulent or in bad faith and in a circumstance where YoCream

has deliberately attempted to frustrate the spirit and intentions of the

relationship established under this Agreement, then for a period of three (3)

years after the termination or expiration of this Agreement, Dannon agrees not

to, directly or indirectly, manufacture, market or sell soft frozen yogurt in

the Territory nor license the Mark for such use by others in the Territory.

     (b)   Except in the event that YoCream terminates this Agreement pursuant

to Section 8.1 for a material, uncured, breach by Dannon of this Agreement

which is either fraudulent or in bad faith, and in a circumstance where Dannon

has deliberately attempted to frustrate the spirit and intentions of the

relationship established under this Agreement, then for a period of three (3)

years after the termination or expiration of this Agreement, YoCream agrees not

to directly or indirectly enter into another co-branding or licensing

relationship with a third party respecting use of a non-YoCream owned trademark

in conjunction with the YoCream Mark, excluding such use for a particular

flavor in connection with soft frozen yogurt in the Territory.

     (c)   Notwithstanding the foregoing, Dannon’s respective obligations under

Section

     8.7(a) shall not prohibit Dannon, or any of its parent, subsidiary or

affiliate companies from investing in or acquiring an entity which sells soft

frozen yogurt under trademarks other than the Mark, if:

     (i)   the investment or acquisition does not represent 5% or more of all

votes entitled to vote for election of directors of the subject entity or other

persons acting in a similar capacity, nor otherwise provides such right to

elect or cause others to elect such persons

or

     (ii)   the soft frozen yogurt business of the subject entity represents

less than 10% of the total gross sales of such entity across all product and/or

service lines it offers, and such entity has less than a 10% market share of

soft frozen yogurt in the Territory (taken as a whole, rather than market by

market), at the time of Dannon’s (or such parent, subsidiary or affiliate’s)

investment

          and in any event

     (iii)   the Mark is not used in connection with the manufacturing,

marketing or sale of soft frozen yogurt by the subject entity during the period

of the non-compete.

     In the event that the percentage of sales of entity, or market share, in

soft frozen yogurt exceed 10% at the time of investment or acquisition, Dannon

will not be in breach of this Section 8.7 if Dannon either (i) discontinues

soft frozen yogurt sales by such entity within a commercially reasonable period

of time from finalization of the acquisition or investment transaction; or (ii)

divests the soft frozen yogurt business (or the portion thereof in excess of

the 10% limitations set forth in section 8.7(c)ii) of such entity within a

commercially reasonable period of time (with commercial reasonableness

determined taking into account, among other things, obtaining a commercially

reasonable price for such business).

     Provided further, however, that (c)(i) and (c)(ii) above shall not be used

to circumvent the intent of this provision, thus permitting Dannon to do

indirectly what it is prohibited by this Section 8.7 from doing directly.

     (d) Any dispute which may arise between the parties with respect to this

Section 8.7 shall be resolved by private arbitration or another mutually agreed

form of private alternative dispute resolution (“ADR”) before a panel of three

disinterested and legally qualified adjudicators, one of which is selected by

Dannon, one of which is selected by YoCream, and one of which is mutually

agreed upon.  The dispute shall be resolved utilizing such rules of evidence

and procedures as are mutually agreed upon by the Parties in good faith.  All

costs related to the selection of the adjudicators and the proceeding itself

shall be born one-half by Dannon and one-half by YoCream unless the

adjudicators otherwise direct as part of the dispute resolution.  Attorney’s

fees, and other costs associated with legal representation shall be borne by

each of the Parties, respectively.  The Parties shall use their best,

commercially reasonable efforts to commence and resolve any dispute arising

pursuant to this Section 8.7 within sixty (60) days of a Party’s written notice

of an intention to move to the formal ADR proceeding, provided that the Parties

shall use their best, commercially reasonable efforts in good faith to resolve

any dispute privately between them, to mutual satisfaction, in the first

instance.

                                 ARTICLE 9

                          MISCELLANEOUS PROVISIONS

     9.1  No Agency. Nothing in this Agreement shall create a partnership,

joint venture or establish the relationship of principal and agent or any other

relationship of a similar nature between the parties. In all transactions

regarding the Product or the Co-Brand, YoCream shall assume sole responsibility

for any commitments, obligations or representations made by it in connection

with the manufacture, sale, marketing, use or advertising thereof.

     9.2  Entire Agreement. This Agreement constitutes the entire agreement

between the parties hereto pertaining to the subject matter hereof and

supersedes all prior agreements, understandings, letters of intent,

negotiations and discussions, whether oral or written, of the Parties,

pertaining to such subject matter. No amendment, supplement, modification or

waiver of this Agreement shall be binding unless it is set forth in a written

document signed by the Parties. No waiver of any of the provisions of this

Agreement shall be deemed or shall constitute a waiver of any other provision

(whether or not similar) nor shall such waiver constitute a continuing waiver

unless otherwise expressly provided in a written document signed by the

parties hereto.

     9.3  Binding Nature of Agreement. Subject to Article 2 above, this

Agreement shall be binding upon and inure to the benefit of the Parties and

their respective successors and assigns.

     9.4 Governing Law; Good Faith Efforts to Resolve Disputes.   This

Agreement shall be construed in accordance with the internal laws of the State

of Oregon without regard to conflict of laws principles.  In the event of a

controversy, claim or dispute (“Dispute”) arising out of or relating to this

Agreement, the Parties shall endeavor, in good faith, to expeditiously

negotiate a mutually agreed resolution to that Dispute.

     9.5 Headings. The headings and captions contained in this Agreement are

for convenience of reference only and in no way define, limit or describe the

scope or intent of this Agreement or in any way affect the interpretation of

this Agreement. Unless the context otherwise specifically requires, words

importing the singular include the plural and vice versa. The terms hereunder’,

“hereto”, “herein” and similar terms relate to this entire Agreement and not to

any particular paragraph or provision of this Agreement.

     9.6 Voluntary Nature of Agreement. This Agreement has been entered into

after negotiation and review of its terms and conditions by parties under no

compulsion to execute and deliver a disadvantageous agreement. The Agreement

incorporates provisions, comments and suggestions proposed by both Parties. No

ambiguity or omission in this Agreement shall be construed or resolved against

either Party on the ground that this Agreement or any of its provisions was

drafted or proposed by the Party.

     9.7 Notices.  All notices or other communications which are required or

which may be given under the provisions of this Agreement shall be in writing

and shall be hand-delivered or mailed certified or registered mail, postage

prepaid, as follows:

   To Dannon at                              with copy to:

   The Dannon Company, Inc.                  Dannon Legal Department

   120 White Plains Road                     120 White Plains Road – 6th Floor

   Tarrytown, NY 10591-5536                  Tarrytown, NY 10591

   Attention:  Chief Financial Officer       Attention: VP and General Counsel

   Facsimile #: (914) 366-2805               Facsimile #: (914) 366-2865

   To YoCream at:                            with copy to:

   YoCream International, Inc.               Hanna Strader

   5858 N.E. 87th Avenue                     Attorneys at Law

   Portland, OR 97220-1312                   1300 SW Sixth Avenue, Suite 300

   Attention: John N. Hanna, CEO             Portland, Oregon 97201

   Facsimile #:   (503) 256-3976             Attention: Harry M. Hanna

                                             Facsimile #: 503-273-2712

Either Party may change its address for notice by written notice to that effect

given to the other Party in accordance with this Section. All notices shall be

effective upon actual receipt at the address specified.

     9.8   Remedies.  Except where otherwise specifically referenced in this

Agreement as an exclusive remedy, the Parties hereto shall have all remedies

available at law or in equity, which remedies shall be cumulative and

nonexclusive, and in addition shall be entitled to such restraining orders,

injunctions, specific performance, protective orders or similar remedies as may

be appropriate.

     9.9  Counterparts. This Agreement may be executed in two or more

counterparts, each of which shall be deemed an original, but all of which

together shall constitute one and the same instrument. Faxed signatures will be

accepted, provided the originally signed documents are delivered on the

following business day.

     9.10  Initial Transition Period.  YoCream currently markets soft frozen

yogurt product under the YoCream Mark in the Territory, and the Parties

recognize that a transition period is necessary to replace the soft frozen

yogurt sold under the YoCream Mark with Product sold under the Co-Brand.  The

Parties agree that it is their mutual intent that the transition be completed

at the earliest possible date following execution of this Agreement (with 90

days to be the target date), with the Parties exercising their best efforts,

taking into account: (a) utilization of existing inventory of soft frozen

yogurt currently marketed under the YoCream Mark; (b) preparation of the

packaging and advertising material to market the Product; (c) effecting a

smooth transition to the Product so as not to adversely affect current

customers of soft frozen yogurt sold under the YoCream Mark; and (d) assuring

effective distribution of the Product.

     IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound

thereby, have executed this Agreement by their duly authorized representatives

to be effective as of the day and year first above written.

     THE DANNON COMPANY, INC.             YOCREAM INTERNATIONAL INC.

     By:                                  By:

     Signature: s Rick Lees             Signature: s John N. Hanna

     Printed Name:                        Printed Name:

     Title: V.P. Finance/CFO              Title: Chief Executive Officer

     Date: September 6, 2001              Date: September 6, 2001

                                Exhibit A

                                   to

                       Co-Brand License Agreement

                        Presentation of Co-Brand

                                Exhibit B

                                   to

                      Co-Brand License Agreement

                               Dannon Logo

                                Exhibit C

                                   to

                      Co-Brand License Agreement

                   YoCream Quality Requirements Manual

 

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