Exhibit 10.80
Confidential
1 st AMENDMENT TO DISTRIBUTION
AGREEMENT
This 1 st Amendment to Distribution Agreement, dated
as of January 24, 2007, is entered into by and between TCBY
SYSTEMS, LLC, a Delaware limited liability company
(“COMPANY”) and SOUTHWEST TRADERS, INC ., a
California corporation (“DISTRIBUTOR”).
RECITALS
WHERAS , the COMPANY and DISTRIBUTOR entered into a
Distribution Service Agreement dated April 12, 2006
(“Agreement”),
WHEREAS , DISTRIBUTOR commenced service to the Temecula
Territory and the Sacramento Territory (combined the
“Territory”) as of June 5, 2006 (the “Effective
Date”),
WHEREAS , Sections 1 and 2.02 of the Agreement provide
the ability for COMPANY and DISTRIBUTOR to expand their
relationship outside of the Territory.
AGREEMENT
NOW, THEREFORE,
in consideration of the foregoing,
the mutual covenants contained in the Agreement and this 1
st Amendment, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
(1)
COMPANY appoints DISTRIBUTOR as its
primary foodservice distributor for the Stores serviced out of
DISTRIBUTOR’s distribution center located in Dallas, Texas
(the “Dallas Territory” and, when combined with the
Temecula and Sacramento Territories, the “Territory”
for all uses of the term in the Agreement) and DISTRIBUTOR hereby
accepts such appointment. The Dallas Territory includes the
entire state of Texas. DISTRI BUTOR also agrees to service
new Stores in the state of Oklahoma if such Stores are within a
thirty (30) mile distance from an existing route of
DISTRIBUTOR. An initial list of stores in the Dallas
Territory is attached as Schedule 1 . DISTRIBUTOR will
commence service in the Dallas Territory on March 26,
2007.
(2)
Section 3.04 of the Agreement is
hereby amended to provide that DISTRIBUTOR will pick up the present
distributor’s inventory located in Dallas, Texas, in the
manner and on the terms currently outlined in the
Agreement.
1
(3)
Section 4.01 of the Agreement is
hereby amended to acknowledge that the current Markup for all
Stores in the Temecula and SacramentoTerritories is presently
[CONFIDENTIAL] (1) per case with a [CONFIDENTIAL]
(2). The Markup for Stores in the Territory will be increased
to [CONFIDENTIAL] (3) per case (due to the temporary
elimination of the [CONFIDENTIAL] (4) per case rebate in the
Sacramento and Temecula Territories) and an initial Markup of
[CONFIDENTIAL] (5) per case will be instituted for the
Dallas Territory, commencing at the start of service to Stores
located in the Dallas Territory (currently expected to be March 26,
2006) and continuing for a period of exactly three (3) months from
the start of such service. Immediately after this initial
three (3) month period, the Markup for the Temecula and Sacramento
Territories will be reduced back to [CONFIDENTIAL] (6) per
case (by re-instituting the [CONFIDENTIAL] (7) per case
rebate back to the COMPANY or by reducing the Sell Price to the
Stores or some combination of the two, at the discretion of the
COMPANY) and will remain at that level until reviewed pursuant to
Section 6 below. In the event the COMPANY decides to continue to
receive all or a portion of the [CONFIDENTIAL] (8), such
rebate will remain in effect until COMPANY notifies DISTRIBUTOR at
least twenty (20) days prior to the beginning of the month that it
would like to eliminate the rebate and reduce the Sell Price of the
Products accordingly.
Immediately after the initial three
(3) month period from the start of service in the Dallas Territory,
the Markup will remain at [CONFIDENTIAL] (9) per case for
the Stores in the Dallas Territory for an additional three (3)
month period. Six (6) months after the start of service in
the Dallas Territory the Markup will be reviewed in accordance with
Section 4 below.
Notwithstanding the foregoing,
DISTRIBUTOR will immediately notify COMPANY in the event it has
entered into a written contract extension with its current largest
customer serviced out of its Dallas, Texas distribution center and,
effective the 1 st
day of the month immediately
following such extension, it will reduce the Markup in the Dallas
Territory
(1)
Confidential treatment has been
requested for the redacted portion. The confidential,
redacted portions have been filed separately with the
SEC.
(2)
Confidential treatment has been
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