**EXHIBIT 10.62**

 

**TERMINATION AGREEMENT AND RELEASE**

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THIS TERMINATION AGREEMENT AND RELEASE (the“Agreement”) is entered into effective as of December 24, 2004, by and betweenMRS. FIELDS FRANCHISING, LLC, a Delaware limited liability corporation (“MFF”),the successor in interest to MRS. FIELDS’ BRAND, INC, and SHADEWELL GROVE IP,LLC (“Shadewell”), the successor in interest to NONNI’S FOOD COMPANY, INC.  MFF and Shadewell sometimes are referred toin this Agreement individually, as a “Party” and collectively, as the“Parties.”

 

**RECITALS**

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A.            MFFis in the business of selling high-end specialty cookies and other treat items,or franchising or licensing others to use its marks and trade names to sellsimilar or related products.

 

B.            Shadewellis a food production and distribution company that had obtained the right touse MFF marks and trade names to sell, *interalia,*frozen cookie dough under the MFF marks and trade names.  The right to produce and market frozen cookiedough was granted by way of an agreement entered into between the Parties datedthe 2nd of January, 2002, and entitled TRADEMARK LICENSE AGREEMENT(the “Dough Agreement”) attached hereto as Exhibit A.

 

C.            TheParties desire now to terminate and end all activities pertaining to the DoughAgreement and their relationship thereunder, and to set forth in this Agreementthe terms and understandings concerning termination of the Dough Agreement.

 

**AGREEMENT**

 

NOW, THEREFORE, in consideration of the foregoingrecitals and the mutual promises and covenants set forth herein, the Partieshereby agree as follows:

 

1.             Terminationof the Dough Agreement.  The Partiesacknowledge and agree, in accordance with the terms and conditions set forthherein, that the Dough Agreement and all of the Parties’ obligations thereunder,except those that shall expressly survive termination as set forth herein, arehereby terminated and shall have no further force and effect after theeffective date of this Agreement

 

THE PARTIES ACKNOWLEDGE AND AGREE THAT THOSEOBLIGATIONS AND DUTIES WHICH HAVE EFFECT ON A POST-TERMINATION BASIS AND WHICHARE EXPRESSLY SET FORTH IN THE DOUGH AGREEMENT SHALL BE PERFORMED AND OBSERVEDHEREAFTER TO THE EXTENT AND FOR A TERM AS EXPRESSED IN THE DOUGH AGREEMENT.

 

2.             TerminationFee Payment by MFF to Shadewell.  Inconsideration of each of the covenants and terms set forth herein, includingwithout limitation agreeing to terminate its rights under the Dough Agreementand agreeing to grant MFF a Release from liability pertaining to such, MFFhereby agrees to pay Shadewell, which includes any amounts that may be owed to

 

 

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Shadewell by MFF under the Dough Agreement for any reason, One MillionFifty Thousand U.S. Dollars ($1,050,000.00 USD) which shall be due and payableto Shadewell upon full execution of this Agreement.

 

3.             Disposalof Inventory; Merchandising Materials. The Parties agree that Shadewell shall (i) immediately cease allmarketing and sales activity with respect to the Royalty Bearing Products underthe Dough Agreement (“Dough Products”) and (ii) within six (6) months from thedate hereof (such period, the “Sell-Off Period”), complete any current businesscommitments and delivery of product that pertains to its operations under theDough Agreement.  In addition, aspreviously agreed to in Section 17 of the Dough Agreement, during the Sell-OffPeriod Shadewell shall be permitted to sell off all inventory through itsnormal business activities and channels, and in accordance with the policies,prices and standards established for marketing and distribution of the DoughProducts in the manner set out in the Dough Agreement.  All activities during the Sell-Off Periodshall include the payment of all royalties accrued as determined by Section 5of the Dough Agreement.  After theexpiration of the Sell-Off Period, the Parties agree that no further DoughProducts will be sold by Shadewell to any third party, and all remaining excessinventory, if any, will be destroyed or otherwise disposed of in the mannermutually agreed upon by the parties at that time.  Shadewell agrees, if requested by MFF, toprovide an accounting of the inventory at the end of the Sell-Off Period and toprovide proof of disposal or destruction of all excess inventory.  The Parties agree that all businessoperations of Shadewell that pertain to the Dough Agreement shall cease by, atthe latest June 30, 2005.  MFF agrees touse its commercially reasonable efforts to cause its franchisees to buy at costthe merchandising materials (including ovens and marketing displays) currentlyused by Shadewell in connection with the sale and distribution of DoughProducts.

 

4.             Indemnificationand Insurance.  Notwithstandinganything to the contrary set forth herein, the Parties’ provisions regardingInsurance in Section 14, and the Parties Indemnification obligations underSection 20 of the Dough Agreement, shall remain in place as long as the productcontemplated in the Dough Agreement remain in the stream of commerce.

 

5.             NoObligations.  Shadewell herebyrepresents and warrants that (i) it has not entered into any agreements thatwould obligate Shadewell to sell, deliver or distribute any Dough Products atany point after the Sell-Off Period and (ii) the execution and performance ofthis Agreement will not violate the terms of any agreement, contract orcommitment to which Shadewell is a party.

 

6.             Confidentiality.  The Parties, and each of them, shall keepstrictly confidential this Agreement and the events giving rise to thisAgreement, including the performance of either Party pursuant to thisAgreement.  In addition, the Partiescontinue to be bound by the terms of Section 15 of the Dough Agreementregarding confidentiality of any protected information disclosed between theparties previously.  This provision shallremain in force at any time following the ceasing all business operations underthe Dough Agreement.  In the event of anybreach of this Section, the non-breaching Party may apply to the appropriatecourt for injunctive relief, and further the non-breaching Party may proceedwith an action in the appropriate court for damages resulting from suchprohibited disclosures.

 

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7.             Enforcementand Support Assistance.  The Partiesagree to work together and cooperate to help enforce the provisions and intentof this Agreement as well as the intent of their other trademark licenseagreements.  Specifically, the Partiesagree as follows:

 

a.             Dough Agreement.  Shadewell agrees to assist MFF to ensure allproduct contemplated under the Dough Agreement is removed from commerce withina reasonable amount of time, and agrees to help identify and address instanceswhere consumers may seek to continue to obtain or use the product that relatesto the Dough Agreement after termination of this Agreement. Moreover, in theevent it is necessary to execute any additional documents to carry out theintent of this Agreement, the Parties will reasonably cooperate to draft,execute, and if necessary, record or file such documents.

 

b.             Maxfield Activities.  As Maxfield Candy Co., a Utah Corporation(“Maxfield”) holds a license to sell “Munchers” candy under the MFF marks andtrade names, MFF agrees to use its best efforts to cause Maxfield to change anyPotentially Confusing Packaging that they submit for approval after the datehereof to reduce confusion between products licensed to Maxfield and productslicensed to Shadewell.  In addition, MFFwill endeavor to share with Shadewell any Potentially Confusing Packaging priorto its approval by MFF.  In addition, MFFagrees to use commercially reasonable efforts to cause Maxfield to change itsexisting Potentially Confusing Packaging to reduce confusion between productslicensed to Maxfield and products licensed to Shadewell.  Moreover, MFF agrees to inform Maxfield whenMFF learns “Munchers” candy receives retail product placement with cookiesrather than candy and to use commercially reasonable efforts to cause Maxfieldto have the “Munchers” product relocated to the candy isle to avoid confusionwith the shelf-stable cookie and related products that are licensed toShadewell.  “Potentially ConfusingPackaging” shall mean packaging for a product licensed to Maxfield that ispotentially confusing with a product licensed to Shadewell.

 

8.             Release.  In consideration of the termination fee andthe other covenants and agreements set forth herein, Shadewell, on its behalfand for any company or entity in which Shadewell may hold any interest, and foreach of their employees, agents, spouses, successors, assigns, heirs, personalrepresentatives, executors and administrators (collectively, the “ReleasorParties”), hereby releases and forever discharges MFF, and any affiliate,wholly-owned or controlled corporation, subsidiary, predecessor, successor orassign of MFF, and any former or current shareholder, officer, director,employee, consultant or agent of any of them (the “Company Parties”), from anyand all claims, damages, agreements, contracts and indebtedness, whetherpresently known or unknown, actual or potential, whether arising now or in thefuture, which any of the Releasor Parties may now have, or may hereafter claimto have against any of the Company Parties arising out of or related to thecontents, activities and any actions taken that pertain to the Dough Agreement,or other obligations, performance or payments related to the Dough Agreement(the “Released Claims”), and further promises never from this day forward,directly or indirectly, to assert or maintain any action thereon against theCompany Parties, in any court or tribunal in any jurisdiction arising from orrelated to the Released Claims.  In theevent any of the Releasor Parties breaches any of the covenants made herein byany act or omission, the breaching party shall pay, by way of indemnification,all costs and expenses of any

 

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of the Company Parties caused by such act or omission, includingreasonable attorneys’ fees.  Specificallyexcluded and excepted from the scope of this Section shall be those continuingduties and obligations of MFF as set forth in this Agreement, including theindemnification obligations set forth in Section 4 above.

 

9.             Warrantiesof the Parties.  The Partiesrepresent and warrant that they each have the right and authority to executethis Agreement.  All parties executingthis Agreement, or documents required by this Agreement, on behalf of anycorporation or other legal entity, expressly represent that they possessrequisite authority under applicable corporate law, to execute this Agreementand any documents executed in pursuance hereof. Shadewell warrants that it hasnot and will not assign any released claims to any other party.  Except as expressly set forth in thisAgreement, the Parties have not made and make no other representations,warranties, statements, promises or agreements to each other.  Neither Party has entered this Agreement inreliance on any representations made by the other Party, which have not beenincluded or disclosed in this Agreement.

 

10.           Choiceof Law and Venue.  This Agreement isentered into in the State of Utah and shall be construed and interpreted inaccordance with its laws and statutes, and it is agreed that any disputesrelating to this Agreement shall be litigated only in State or Federal courtssituated in Utah County or Salt Lake County, State of Utah.

 

11.           Non-Waiver.  No failure of either Party to insist uponstrict performance of any performance, duty, agreement or condition of thisAgreement, or to exercise any right or remedy upon the breach thereof, shallconstitute a waiver of any breach of this Agreement.

 

12.           Counterparts.  This Agreement may be signed in counterparts,which shall be considered one original.

 

13.           Attorney’sFees.  In the event any action orproceeding is brought by either Party to enforce the provisions of thisAgreement, the prevailing Party shall be entitled to recover its costs andreasonable attorney’s fees whether such sums are expended with or without suit,at trial, arbitration, or on appeal.

 

14.           Integration.  This Agreement sets forth the entireagreement and understanding between and among the Parties hereto with respectto the subject matter hereof and supercedes all prior written and oralagreements, term sheets, negotiations and understandings; shall be binding uponthe successors, assigns, heirs, and personal representatives of the parties,and may not be rescinded, cancelled, terminated, supplemented, amended, ormodified in any manner whatsoever without the prior written consent of allparties.

 

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Executed as of the date first set forth above.

 
|   | MRS. FIELDS  FRANCHISING, LLC, |
|--------|--------------------------------|
|   |                           |   |   |   |
|   | By:                            |   | /s/ Michael Ward |   |
|   | Name:                          |   | Michael Ward |   |
|   | Its:                           |   | Executive Vice  President, General Counsel |   |
|   |                           |   |   |   |
|   | SHADEWELL GROVE IP, LLC        |   |
|   |                           |   |   |   |
|   | By:                            |   | /s/ Tim Bruer |   |
|   | Name:                          |   | Tim Bruer |   |
|   | Its:                           |   | President |   |

 

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**EXHIBITA**

 

**TRADEMARKLICENSE AGREEMENT**

Dated January 2, 2002

[Intentionally Omitted]

 

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