Exhibit
10.77


PRODUCT SUPPLY AGREEMENT


THIS AGREEMENT
(the “Agreement”) is made and entered into this 5th day of December, 2006, by
and between Yarnell Ice Cream  Company, Inc., an Arkansas corporation (the “Processor”) and
TCBY Systems, LLC, a Delaware limited liability company
(the “Company”).


RECITALS:


A.
The Company supports its individual franchisee locations operated as part of
its TCBY franchise system (the “System”) by negotiating with manufacturers to
secure goods at a price on behalf of the System, and then encourages the System
to purchase those goods for use in its individually owned locations through
Company’s designated distributors.


B.
The Processor is in the business of custom manufacturing frozen dairy products
and has facilities, capacity and expertise available and sufficient to enter
into this Product Supply Agreement.


C.
The Company desires to have the Processor manufacture and process products at
the Processor’s plant in Searcy, Arkansas (the “Plant”) to be made available to
distributors designated by Company who will purchase the products for resale to
the System.


D.
Processor desires to enter into such an agreement with the Company to provide
the desired product.


NOW THEREFORE, in
consideration of the covenants hereinafter set forth, the sufficiency of which
is hereby acknowledged, the parties agree as follows:


1.  PRODUCTS.


Subject to the terms and conditions hereof, the
Processor shall prepare, manufacture, process, and package for the Company
those Products identified in Exhibit A
(the “Products”) attached hereto and made a part hereof.  Nothing contained herein shall grant any
degree or rights of exclusivity of manufacturing to the Processor.


(b)      Company
may, from time to time, introduce new products which may be added to Exhibit A by providing Processor with
thirty (30) days written notice; provided that Processor and Company agrees as
to all needed specifications for the new product(s), pricing and minimum volume
requirements, if any.   Processor will



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not unreasonably deny Company’s request to add new
product(s).  Company may also introduce
product(s) that will be needed for seasonal purposes only, and Processor agrees
to manufacture such seasonal product(s) in amounts designated by Company from time
to time if doing so can be reasonably accomplished; provided that Processor and
Company agree as to all needed specifications for the seasonal product(s),
pricing and minimum volume requirements, if any. Company agrees to purchase any
remaining components after requested production of a seasonal item with
particular attention to those items with minimum order requirements over and
above those needed for the production of the seasonal item, provided processor
consults with Company prior to placing orders with a minimum that exceeds
required production.   Processor agrees
to inform Company promptly in writing if for any reason it is not able to
manufacture new product(s) or seasonal product(s) in the amounts needed.  For purposes of this Agreement, the new
products and seasonal products contemplated by this Section 1(b) shall be
considered “Products”.


(c)   Company may remove any Product from Exhibit A by providing Processor notice in
writing of the cancellation of the Product. 
Upon receipt of notice of cancellation of a Product, Processor shall:
(i) immediately stop all production of the Product, (ii) take all reasonable
steps to stop cost commitments related to the Product, and (iii) inform Company
of the remaining inventory of finished product and related components it holds
with respect to the discontinued Product. 
Upon receipt of such information, the Company shall have the option to
(a) compensate Processor for all remaining finished or unfinished components of
the cancelled Product in the manner outlined in Section 2(d) below; or (b)
decide to reinstate such Product to Exhibit A.


2.  TERM/TERMINATION.


(a)     This
Agreement shall commence upon the date first written above and shall continue
for a period of three (3) years, unless earlier terminated pursuant to Section
2(b) or 2(c).  Thereafter this Agreement
shall automatically renew for additional one-year periods unless either party
gives at least one hundred and eighty (180) days notice prior to the end of the
then current Term of its intent not to renew.


(b)     The
Processor and the Company shall each have the right to immediately terminate
this Agreement if (i) the other party is adjudged bankrupt, or makes a general
assignment for the benefit of creditors, or if a receiver should be appointed
because of its insolvency, or (ii) if the other party shall fail to perform or
observe any of its material obligations under this Agreement and does not
correct such failure within thirty (30) days after written notice from the
non-defaulting party describing such failure (except to the extent other cure periods
for specific material obligations are included elsewhere in the Agreement, in
which case those specific cure periods will apply).


(c)     At the
end of the first six months of this Agreement, the Processor and the



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Company shall each have the right to terminate this
Agreement without cause by providing the other party at least one hundred and
eighty (180) calendar days notice of termination such notice must be provided
in writing in the manner outlined below.  
Notice of termination may occur only after both parties specifically
outline areas of concern and a reasonable period of time is given to the other
party to address and provide reasonable remedies to said concerns where
feasible.


(d)     In the
event of termination of this Agreement, the Company shall purchase from the
Processor, for an amount equal to the Processor’s out-of-pocket cost therefore,
packaging inventory and unique ingredients and raw materials (“Raws”) inventory
then in the Processor’s possession which were purchased by the Processor solely
for the production of Company’s Products hereunder, not to exceed 30 days
supply unless agreed to in writing or a result of minimum order requirements
from Company’s required raw material vendors when minimum exceeds a 30 day
supply.  The Company shall purchase any
finished goods inventory of the Products that is in the Processor’s possession
on the effective date of termination; however, the total amount of finished
goods shall not exceed a thirty (30) day supply, calculated based on the
average monthly demand over the previous six months as provided to Processor as
outlined in Section 3(a) of this Agreement, unless otherwise agreed to by the
parties in writing.  After notice of
termination, all future production and purchases of Raws shall be mutually agreed
upon.  The Company’s and the Processor’s
remedies upon any termination hereunder shall not be to the exclusion of any
other remedy available to the parties, at law or otherwise.


3.     PRODUCTION AND FORECAST.


The Company shall
provide to Processor a rolling twelve (12) month forecast of specific products
requirements and anticipated quantities. 
On a monthly basis, Processor and Company will review the forecast and
agree upon a monthly production quantity.  
The review and mutually agreed upon monthly production schedule will be
influenced by current product movement, seasonality, and similar issues, and
Processor agrees to follow Company’s instruction regarding all current and
future production needs.  The Processor
will deliver within +/- five percent (5%) the quantity of products ordered
within two (2) weeks of its receipt of production orders, but agrees to only
deliver Product to distributors and/or purchasers specifically authorized by
the Company, which may be modified from time to time by Company’s Purchasing
and Distribution Department.



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4.              DISCONTINUED
AND OBSOLETE.


In the event a Product is discontinued or becomes obsolete, the
Processor and Company shall negotiate a disposition of the Product that will
include any and all finished goods, proprietary raw materials and packaging.


5.              SALE
PRICE AND TERMS.


(a)     Definitions


i)     Tolling Fee – The price that Company or its
designated distributor will pay Processor for all compounding, filling, quality
control, laboratory, warehousing, administrative, good manufacturing practices
compliance, profits and any other services necessary to produce, prepare for
shipment and invoice the Products.


ii)    Shrink – a cost factor to be applied on a
quarterly basis reflecting Processor’s actual documented per run loss of materials,
not to exceed 3% in any quarter during the term.


iii)   Raws – unique materials and ingredients required
by Processor to produce the Products.


iv)   Manufacturing Costs – Processor’s actual
unburdened costs of Raws, and unique packaging used in the production of
Products as manufactured and ready for shipment.


v)    Per Unit Price – the sum, determined on a
Product-by-Product basis, of Tolling Fee, Shrink, and Manufacturing Costs.


vi)   Company Portion – an amount to be controlled
by the Company to be added to the cost to designated distributors for such
Products which may include franchise royalty, advertising fee, yogurt
formulation charges and other amounts designated by Company from time to time.


vii)  Distributor Purchase Price – the dollar
amount specified by Company which Processor will charge for Products, which may
differ from distributor to distributor. 
This Price may or may not include freight charges, prorated or
otherwise, by mutual agreement between Company and Processor.  Distributor Purchase Prices shall be outlined
in Exhibit A and may be subject to adjustment not more frequently than once per
calendar quarter.


viii) viii) Delivered – sold to Company’s designated distributor, FOB
Processor’s Plant.


(b)      Initial Tolling Fee - The Parties hereto agree that the
initial Tolling Fee for use in establishing prices to the Products listed in
Exhibit A shall be equal to [CONFIDENTIAL](1) per gallon or [CONFIDENTIAL](2) per three-gallon tub for all satisfactory Products produced and
delivered hereunder.  If additional
Products are added to this






(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 requested for the redacted portion.  The confidential, redacted portions have been
filed separately with the SEC



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Agreement, the Parties will mutually agree upon
Tolling Fees applicable to those added Products.  Tolling fee is subject to annualized
adjustments based upon the National CPI to be reviewed each December starting
1/1/08 for implementation in the following quarter.   This CPI adjustment will be taken from data
provided by the U.S. Department of Labor Statistics.


(c)      Quarterly Reviews. 
Within forty-five
(45) days after the end of each calendar quarter during this Agreement, the
representatives of the parties shall meet to review the performance of the
parties, and the Processor’s Manufacturing Cost and Shrink.   In the event that there has been an upward
or downward change in the above costs (which may be audited by the Company or
its authorized representatives) the parties shall in good faith apply the
agreed upon adjustment in pricing (Differed Credit /Debit) for the Products
commensurate with such material increase or decrease in cost, such change to be
effective from the beginning of the next pricing period, which will be outlined
on a revised Exhibit A.


(d)      Payment
Terms. Terms of payment shall be net 30, which terms shall apply as between
Processor and Company’s authorized distributors.   Company does not warrant or guarantee
payment from the distributors. Processor reserves the right to withhold credit
terms to authorized distributors if payments are not made within said terms.  Additionally, Processor reserves the right to
use reasonable means to collect past due balances from authorized distributors.


6.     INVOICING REQUIREMENTS.


(a)   Invoicing


(i)  At the time of each delivery of Product,
Processor shall issue an invoice or invoices (in the form and manner as
reasonably directed by the Company) to the relevant designated distributor, or
directly to Companyat Company’s option, requiring payment for the Product so
delivered, listing Distributor’s Purchase Price.  Processor will also send to Company a
duplicate copy of each invoice for deliveries made to designated distributors
using electronic means as directed by the Company.  The Company Portion will either be: (i)
placed directly on Processors invoice by Processor to designated distributor at
Company’s request, (ii) invoiced by Company separately from the Processor’s
invoice with both invoices being provided by Processor to designated
distributor, or (iii) invoiceddirectly by Company to designated distributor on
one invoice including Distributor’s Purchase Price based on Processor’s invoice
provided directly to Company.  The
Company may direct from time to time which of the above three options it
requests Processor to use for invoicing Products.  All sales shall be made FOB at Processor’s
manufacturing facility and shall have the freight added as agreed to by both
parties. Payment terms



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for invoices shall
be net 30 days.


(ii) The Per Unit Price shall be deemed to be earned
by, and be the sole property of, the Processor. 
The Company Portion shall be deemed to be earned by, and be the sole
property of, the Company.  Any other
amount received by the Company from its designated distributors pursuant to the
applicable distribution agreements or otherwise shall be the sole property of
the Company and the Processor acknowledges and agrees that (A) Processor shall
have no right, title or interest therein and (B) the Company shall have no
obligation to account or otherwise report to Processor with respect to any
amounts other than the Per Unit Price.


(b)
Certain Collection Matters


(i) Collection for “One Invoice” Billings.
Certain invoices will require the designated distributors to make payment of
the entire amount of the Distributor Purchase Price to either Processor or
Company, in which case the invoicing party shall act as a collection agent for
the other party and be responsible for remitting the applicable portion of the
Distributor Purchase Price to the other party; provided, however, that each
reserves the right to collect amounts owed directly to it from the designated
distributors and shall assign to the other party upon request its collection
rights and otherwise cooperate with the lawful collection activities of the
other party. If Company requests Processor to collect on its behalf, Processor
will require a reasonable administration fee as mutually agreed to by both
parties for such services.  Should
Company collect invoices for Processor, Processor will not pay such
administration fee as such decision is made solely by Company.  In acting as a collection agent for other
party, invoicing party shall use commercially reasonable efforts to collect all
amounts owing from the designated distributors; provided, however, that, in no
event shall invoicing party have any liability for the other party’s
uncollected amounts.    If any amount
collected from a designated distributor is equal to less than the full amount
due then such amount shall be allocated pro rata between the Per Unit Price and
the Company Portion.


7.    QUALITY ASSURANCE.


(a)      Quality
Standards.  Processor shall
manufacture the Products strictly in accordance with the standards, procedures,
specifications, formulations and recipes from time to time established and
provided to Processor by the Company, and shall handle and store all raw
materials and all finished Products in accordance with the quality controls
established by Processor and agreed to by the Company.



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(b)      Inspection.  The Processor agrees to make the Plant and
its processing facilities available for inspection by the Company and its
authorized representatives upon the Company’s reasonable request during normal
business hours.   Further, Processor
shall maintain appropriate books and records regarding manufacturing of the
Products and collections of accounts hereunder and shall make such books and
records available to the Company and its authorized representatives for
inspection and copying upon reasonable notice. 
Processor shall maintain such books and records for not less than one
year following termination of this Agreement, and the Company’s audit right
shall continue for 6 months.  All
Confidential Information (defined below) of Processor acquired by or disclosed
to any employee or agent of the Company during any such inspection shall be
regarded as confidential pursuant to Section 13 of this Agreement.    The Company shall have the right, but not
the obligation, to inform Processor of any quality issues it discovers during
inspection.  Processor’s failure to cure
within 15 business days of Processor’s discovery for non-life threatening and
immediately after discovery of life threatening quality issues will be grounds
for immediate termination of this Agreement, whether such discovery was made as
a result of Company’s inspection or otherwise.


(c)      Compliance
with Regulations.  Processor agrees
that the Products will be manufactured, packaged and labeled in compliance
with, and will not be adulterated or misbranded within the meaning of, the
Federal Food, Drug and Cosmetic Act of 1938, or any other federal, state,
foreign or local laws or regulations applicable thereto, will not constitute an
article that may not be introduced into interstate commerce and will be
manufactured in substantial compliance with all applicable federal, state,
foreign or local laws and regulations applicable thereto.  Unless Company otherwise agrees in writing,
Processor will destroy all inventories that are not in conformity with Food and
Drug Administration rules and regulations or any applicable federal, state,
foreign and local laws.  Processor agrees
to notify Company promptly of any regulatory action of which Processor has
knowledge that is taken in relation to it by any federal, state, foreign,
county or municipal authority and that relates to or affects the manufacture,
storage, distribution or sale of the Products. 
Without limiting the foregoing, Processor shall obtain all licenses and
certifications necessary to lawfully produce the Products, including any
necessary certifications under applicable bioterrorism laws, and shall deliver
copies of such licenses and certifications to Company or designated
distributors upon request.  


(d)      Product Recall and
Withdrawal.  Either Party shall
immediately advise and consult with the other as to any Product recall or
withdrawal considerations; provided that Company shall have the absolute right
to recall or withdraw any Product if it reasonably determines in its sole
discretion that (i) such Product is contaminated, (ii) the use and/or
distribution of such Product may pose an immediate threat to Company’s
customers or (iii) such Product otherwise fails to conform to the quality



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standards
set by Company and provided to Processor. 
Company shall bear the reasonable cost of any recall or withdrawal;
provided, however, that Processor shall bear the reasonable cost of any recall
or withdrawal that results directly from or is required as a result of
Processor’s manufacture of the Products or procurement of raw materials used in
the manufacture of the Products other than in strict compliance with this
Agreement.


8.  CODE DATING AND LABEL INFORMATION.


Coding and label
information shall appear on each case or tub using a form that complies with
any applicable laws and regulations, using information as directed by the
Company as listed in Exhibit C


9.  CONTAINER AND PACKAGING; QUALITY AND PURITY
STANDARDS/WARRANTY.


Without limiting
any other quality requirements set forth herein, the Processor shall perform
its obligations hereunder in accordance with the best practices of the
industry.  The Processor guarantees that
it will comply with the practices and policies set forth in CFR21.


Product packaging
and/or containers shall be suitable for distribution to Company’s System via
motor cargo and shall serve to assure product quality and purity throughout the
distribution process.   In the event of
failure of the containers to provide adequate Product protection and Product
purity or quality is compromised not due to mishandling during the distribution
process but due to manufacturer error, Processor shall provide credit for
Products so compromised.   Processor
shall establish a documented process that the Company can disclose to the
individual businesses within its System defining container faults subject to
this warranty and methodology for submission of claims.


10.  INSURANCE AND INDEMNIFICATION.


(a)  Company
Indemnification.  Company
hereby indemnifies Processor and forever holds Processor harmless from and
against all claims, suits, actions, proceedings, damages, losses or
liabilities, costs or expenses (including reasonable attorneys’ fees and
expenses) arising out of, based upon, or in connection with (i) any breach of
any of Company’s covenants in this Agreement or (ii) any claim that the use by
Processor of the Names and Marks as provided in this Agreement infringes upon
any third party trademark, service mark, or trade name.


(b)  Processor
Indemnification.  Processor
hereby indemnifies Company and



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forever holds
Company harmless from and against all claims, suits, actions, proceedings,
damages, losses or liabilities, costs or expenses (including reasonable attorneys’
fees and expenses) arising out of, based upon, or in connection with, unless it
is at the direction of Company (i) any breach of any of Processor’s covenants
in this Agreement, (ii) any alleged defects in the manufacture or processing of
Products; or (iii) any injuries or damages to purchasers, users, or consumers
of Products arising from defects in the procurement of raw materials hereunder
and the manufacturing, processing or packaging of Products.


(c)  Conditions
of Indemnification.  As a
condition of indemnification under this Section, the party seeking
indemnification shall give the other party (for purposes of this Section called
the “Indemnifying Party”) immediate notice of and copies of all pleadings and
correspondence related to the assertion of any such claim, proceeding, action,
or suit and agrees not to settle, compromise, or otherwise dispose of any such
claim, proceeding, action or suit without the prior written consent of the
Indemnifying Party.  The Indemnifying
Party shall hold the Indemnified Party harmless and shall assume the defense or
settlement of any such claim, proceeding, action, or suit at its expense. The
Party seeking indemnity shall reasonably cooperate with the Indemnifying Party
in defense of the action at its own expense.


(d)  Insurance.  At all times during the term of
this Agreement, Processor shall maintain appropriate insurance at commercially
reasonable levels of coverage to cover all of its obligations under this
Agreement, including, without limitation, general liability insurance and
malicious product tampering, product liability, and product recall insurance
with respect to the manufacture and sale of the Products, in each case with
minimum coverage of [CONFIDENTIAL](3) per occurrence.  All such insurance shall be issued by an
insurance carrier or carriers rated A or better by the industry and shall name
the Company as an additional insured on a primary non-contributory basis.  Processor shall submit to the Company
annually a copy of a certificate of insurance evidencing this coverage and
shall give Company at least 30 days prior written notice of any material
modification or termination of the coverage.


11. COMPANY
NAMES AND MARKS.


Whenever Processor
uses the Company’s proprietary names, trademarks and service marks attached
hereto as Exhibit B (“Names and
Marks”), Processor shall affix the appropriate trademark notice and agrees to
use the registration symbol of “R” in connection with its use of the Names and
Marks, or “TM” where the mark has not been registered federally, and in each
instance where appropriate accompanied by the words






(3) Confidential
treatment has been requested for the redacted portion.  The confidential, redacted portions have been
filed separately with the SEC.



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“Reg. TM of TCBY
Systems, LLC” or a reasonable facsimile thereof or such other reference as may
be designated by Company from time to time. 
Where Names and Marks are used more than once on packaging, in copy or
on the Products, the “R” or “TM” designation need only be used once either on
the most prominent use of the Licensed Name and Mark, or if all uses are of
equal prominence, then on the first use of the Names and Marks in or on each
package, copy, or Product.  Processor
shall use the Names and Marks only as trademarks, service marks, or trade names
and shall affix the notice as specified. 
Processor shall not have the right, unless previously agreed in writing
by Company, to use other trademarks, service marks, or trade names on
packaging, copy or on the Products. 
Company shall have the right to own and register any such other
trademark, service mark, or trade name which is registerable, and Processor
shall cooperate with Company by providing packaging, labeling, and
documentation as may be required to obtain and maintain such registration.


(a)  Restrictions
on Use. Unless Company consents in writing, which consent shall not
be unreasonably withheld, Processor shall use the Names and Marks (i) for the
purposes of and pursuant to this Agreement; or (ii) only in a manner consistent
with the scope of the relevant registration of the Names and Marks or
applications therefore; or (iii) only in the manner permitted and prescribed by
Company as set forth herein; or (iv) only with respect to Products; or (v) only
to label and sell Products to designated distributors.


(b)  Recognition
of Goodwill. Processor recognizes the value of the goodwill  associated with the Names and Marks and
acknowledges that the Names and Marks and all rights therein and goodwill
pertaining thereto belong exclusively to Company.


(c)  Validity
of Other Agreements. 
Processor agrees that it will not, during the term of this Agreement or
thereafter, attack the title or any rights of Company in and to the Names and
Marks, or any other license agreement or franchise agreement involving the
Names and Marks to which Company is a party.


(d)  Validity
of Licensed Names and Marks. 
Processor agrees that it will not intentionally destroy, impair or in
any way impede the effect and validity of the Names and Marks.


(e)  Infringement. 
Processor agrees to assist Company, at Company’s cost and expense, to
the extent necessary in the procurement of any protection or to protect any of
Company’s rights to the Names and Marks.


12.     NOTICE.


All notices,
requests, demands, and other communications hereunder by which either party is
to be legally bound shall be in writing and shall be given (i) by Federal



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Express (or other
established express delivery service which maintains delivery records), (ii) by
hand delivery, (iii) or by facsimile transmission, to the parties at addresses
set forth below or at such other address given by like notice.  Notices shall be deemed effective upon
receipt.


	
  If to the Processor:

  	
   

  	
  Yarnell Ice Cream Company, Inc.

  
	
   

  	
   

  	
  205 South Spring
  Street

  
	
   

  	
   

  	
  Searcy, Arkansas
  72143

  
	
   

  	
   

  	
  Attn: Christina
  Yarnell

  
	
   

  	
   

  	
   

  
	
  If to the
  Company:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TCBY Systems,
  LLC

  
	
   

  	
   

  	
  2855 East
  Cottonwood Parkway

  
	
   

  	
   

  	
  Suite 400

  
	
   

  	
   

  	
  Salt Lake City,
  Utah 84121

  
	
   

  	
   

  	
  Attn: Director
  of Purchasing

  
	
   

  	
   

  	
  With copy to:
  Legal Department

  



 


13.     CONFIDENTIALITY
AGREEMENT.


The Parties agree
that they will not
disclose any Confidential Information which each has received about the other
Parties by virtue of their relationship under this Agreement to any person
other than to their employees or agents and then only on a “need to know” basis
to fulfill the terms of this Agreement, nor will the Parties use any
Confidential Information which is received by virtue of the relationship under
this Agreement for their own benefit or for the benefit of any third party
without the prior written consent of the disclosing party except as
specifically provided for herein.  The
Parties will ensure that all of its representatives who obtain access to
Confidential Information are informed of the confidential nature of the information
which they receive and that they are bound by the obligation to maintain its
confidentiality in accordance with all the terms hereof.  “Confidential Information” shall mean all
information with respect to the business of each of the Parties, including but
not limited to the marketing, sales, formulations (including yogurt
formulations), specifications, methods of manufacture, distribution,
franchising, names of agents and franchisees, inventions, equipment, know-how,
pricing and purchasing of the Parties which is considered confidential by the
disclosing Party and which is received by virtue of the Relationship created by
this Agreement.  The parties agree that
irreparable harm will result if
this provision is breached and monetary damages will not make the aggrieved



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party
whole, and jointly agree that a court ordered injunction or restraining order
would be appropriate to stop the misuse of any Confidential Information by the
breaching party.  This provision shall
survive any termination or expiration of this Agreement.   Confidential Information shall not include
any information that was (i) was in the possession of the receiving Party at
the time of such disclosure by the disclosing Party, (ii) becomes available to
the receiving Party on a non-confidential basis from a source other than the
disclosing Party, provided that such source is not bound by a confidentiality
agreement with the disclosing Party; or (iii) was already known to the general
public or subsequently became known to the general public through no fault or
omission on the part of the receiving Party or (iv) was independently developed
by the receiving Party employees without use of the Confidential Information.


14.     NON-COMPETITION AGREEMENT.


Processor agrees not to undertake any manufacture of other products for
other parties which shall diminish or preclude their ability to perform the
obligations that they have agreed to herein.


15.     FORCE MAJEURE.


Neither Company nor Processor shall be liable for loss or
damage or deemed to be in breach of this Agreement if their failure to perform
obligations results from: (i) compliance with any law, regulation, requirement
or instruction of any federal, state, municipal or foreign government or any
department or agency thereof; (ii) acts of God; (iii) fires, strikes,
embargoes, war or riot; or (iv) any other similar event or cause beyond the
reasonable control of the other Party. Any delay resulting from any of said causes shall extend performance
accordingly or excuse performance, in whole or in part, as may be reasonable,
except that said causes shall not excuse payments of amounts owed at the time
of such occurrence.   Should such Force
Majeure extend beyond 90 days, the other party may terminate the Agreement by
providing written notice to the other party in accordance with section 2(d).


16.     MISCELLANEOUS.


(a)  It is agreed that neither party has made or is
making any representations or warranties, express or implied, not explicitly
set forth in this Agreement, the exhibits and the attached letters hereto, that
this Agreement and its exhibits and attachments represent the entire Agreement
between the parties hereto and it cancels and supersedes all earlier
agreements, written or oral, and that no waiver, modification, or change of any
of the terms of this Agreement shall be valid unless set forth in writing
signed by both parties.


(b)  If any condition, term, or covenant of this
Agreement shall at any time be



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held to be void,
invalid, or unenforceable, such condition, covenant, or term shall be construed
as severable and shall attach only to such condition, covenant or term and
shall not in any way affect or render void, invalid, or unenforceable any other
condition, covenant, or term of this Agreement, and this Agreement shall be
carried out as if such void, invalid, or unenforceable term were not embodied
herein.


(c)  This Agreement shall inure to the benefit of
the parties and their successors, and assigns (provided the assignment does not
violate the terms hereof and the assignment is made with the consent of the
other party, which consent will be at the sole discretion of the other party,
and shall be binding upon the parties, their successors, and assigns.


(d)  This Agreement shall be governed by the
internal laws of the State of Utah, without regard to conflicts of law
principles.


IN WITNESS
WHEREOF, the parties have caused this Agreement to be executed as of the day
and year first above written.


	
  YARNELL ICE CREAM COMPANY, INC.

  	
   

  	
  TCBY SYSTEMS, LLC

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ James Fink

  	
   

  	
   

  	
  By:

  	
  /s/ Michael Ward

  	
   

  
	
   

  	
   

  	
   

  
	
  Title: President

  	
   

  	
  Title: Exec. VP, Chief Legal Officer

  
	
   

  	
   

  	
   

  
	
  Date: December
  5, 2006

  	
   

  	
  Date: December 5, 2006

  
							



 



 13
 









Exhibit A


[Confidential
Treatment has been requested for this Schedule. 
The confidential redacted portions 

have been filed separately with the SEC]



 14
 









Exhibit B


TCBY®


“TCBY” THE COUNTRY’S
BEST YOGURT®


BERIYOTM


YOVANA®



 15
 









Exhibit C


Example of case
labeling



 16