Exhibit
10.76


PRODUCT SUPPLY AGREEMENT


THIS AGREEMENT
(the “Agreement”) is made and entered into this 5th day of December, 2006, by
and between Scott Brothers Dairy, Inc., a
California 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 Chino, California (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.


(a) 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 except as
outlined in 2c of this agreement.      (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



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agrees as to all needed specifications for the new
product(s), pricing and minimum volume requirements, if any.   Processor will 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.  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 (y) compensate Processor for all remaining finished or
unfinished components of the cancelled Product in the manner outlined in
Section 2(d) below; or (z) 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)  The
Processor will have the exclusive right to produce the products on Exhibit A
for the following periods:  eighteen (18)
months from the date hereof for the Western United States (TCBY locations
currently directly serviced by Southwest Traders from its Temecula, CA
location):  and six (6) months for the
rest of the United



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States. At the end
of such exclusivity periods, the Processor and the Company shall each have the
right to terminate this Agreement as to the applicable non-exclusive service
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.    For clarity, TCBY shall have
the right to terminate, extend or review this agreement as provided herein for
processors production for the Western United States, subject to the
corresponding exclusivity period separately from production for the rest of the
United States.


(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 60 days
supply unless agreed to in writing.  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 sixty (60) 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. As the current agreement is based on nationwide
delivery of products, the tolling fee is currently [CONFIDENTIAL](1)
per case.  Should delivery cease to
operate nationwide, thereby limiting delivery to include only local territory,
a [CONFIDENTIAL](2) increase in the tolling fee shall
apply, bringing the total tolling fee to 






(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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[CONFIDENTIAL](3) per case.


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 an
annual basis reflecting Processor’s loss of materials, not to exceed [CONFIDENTIAL](4).  Per year.


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.






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


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



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(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](5) per gallon or [CONFIDENTIAL](6) per thirty-six (36)
pound case to contain between [CONFIDENTIAL](7) gallons per box for all satisfactory Products produced and delivered
hereunder.  If additional Products are
added to this Agreement, the Parties will mutually agree upon Tolling Fees
applicable to those added Products. 
Should product delivery cease to include nationwide locations and
encompass only local territory serviced by SWT, the tolling fee will increase
by [CONFIDENTIAL](8) cents per case as outlined in paragraph 3, above.


(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 subject to independent
audit) the parties shall in good faith apply the 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 21, which terms shall apply as between Processor and
Company’s authorized distributors.  
Company does not warrant or guarantee payment from the distributors.


6.     INVOICING REQUIREMENTS.


(a)      Invoicing


(i) At the time of
each delivery of Product, Processor shall issue an invoice or invoice or
invoices (in the form and manner as reasonably directed by the Company) to the
relevant designated distributor, or directly to Company at 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,






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


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


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


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



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or (iii) invoiced
directly 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 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.



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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.


(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 inspection right
shall continue during this time.  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 5 business days of Processor’s discovery for non-life threatening and 1
day of discovery for 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.  



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(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 determines in its sole discretion that
(i) such Product may be 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 standards set by Company and
provided to Processor.  Company shall
bear the cost of any recall or withdrawal; provided, however, that Processor
shall bear the 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.


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, 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



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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 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](9) 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.






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



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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 “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.



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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
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:              Scott Brothers
Dairy, Inc.


12000 S. East End
Ave


Chino, CA 91710


Attn: Michael
Peauroi


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



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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 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



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signed by both
parties.


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


 


	
  Scott Brothers Dairy

  	
   

  	
  TCBY SYSTEMS, LLC

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Michael
  Peauroi

  	
   

  	
   

  	
  By: 

  	
  /s/ Michael Ward

  	
   

  
	
   

  	
   

  	
   

  
	
  Title: General
  Manager

  	
   

  	
  Title: Exec. VP, Chief Legal Officer

  
	
   

  	
   

  	
   

  
	
  Date: December
  5, 2006

  	
   

  	
  Date: November 30, 2006

  
							




 13
 









Schedule 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