Importation And Marketing Agreement

IMPORTATION AND MARKETING AGREEMENT


This Agreement is made this December 19, 1997 by and among SEVEN-ELEVEN JAPAN Co., Ltd., a Japanese corporation with its office at 1-4 Shibakoen 4-chome, Minato-ku, Tokyo 105 Japan (hereinafter called "SEVEN-ELEVEN"), TOWER ENTERPRISE Corporation, a Japanese corporation with its office at 6F Aoyama Sun Crest Bldg., 13-5 Kita-Aoyama 2-chome, Minatoku, Tokyo 107 Japan (hereinafter called "TOWER"), ATF Co., Ltd., a Japanese corporation with its office at 6F Aoyama Sun Crest Bldg., 13-5 Kita-Aoyama 2-chome, Minato-ku, Tokyo 107 Japan (hereinafter called "ATF") on the one hand, and BEN & JERRY'S HOMEMADE, Inc., a Vermont corporation with its office at 30 Community Drive, South Burlington, Vermont 05403-6828 U.S.A. and BEN & JERRY'S HOMEMADE HOLDINGS, Inc., a Vermont corporation with its office at #7 Burlington Square, Burlington, Vermont 05401 U.S.A.(hereinafter collectively called "B&J") on the other hand.


WHEREAS, SEVEN-ELEVEN, acting on behalf of the Ito-Yokado Group Companies (as described in Annex 1 and hereinafter called "IY GROUP"), has appointed TOWER as importer into Japan (hereinafter called the "TERRITORY") of certain ice cream products (as defined in Article 2 of this Agreement and hereinafter called the "PRODUCTS") manufactured by B&J in the United States; and


WHEREAS, TOWER, ATF and SEVEN-ELEVEN are affiliated companies: and


WHEREAS, TOWER, acting on behalf of IY GROUP, has agreed to import the PRODUCTS and sell the PRODUCTS to ATF, which has been appointed by SEVEN-ELEVEN as the vendor of the PRODUCTS; and


WHEREAS, ATF has agreed to act on behalf of IY GROUP in Japan to sell and distribute the PRODUCTS for resale only in the convenience stores owned or operated by SEVEN-ELEVEN and the outlets of IY GROUP in the TERRITORY; and


WHEREAS, B&J has agreed to produce and supply the PRODUCTS to be sold in the TERRITORY by IY GROUP for resale only in the convenience stores owned or operated by SEVEN-ELEVEN and the outlets of IY GROUP in the TERRITORY;


NOW THEREFORE, it is mutually agreed as follows:


Article 1. (Appointment and Status)

(1) B&J hereby agrees to produce and supply the PRODUCTS which will be
imported by TOWER and sold to ATF.


(2) SEVEN-ELEVEN hereby appoints TOWER as the importer of PRODUCTS on
behalf of IY GROUP in the TERRITORY for the purpose to sell the
PRODUCTS to ATF as the vendor appointed by SEVEN-ELEVEN. TOWER hereby
agrees to act as such importer.


(3) SEVEN-ELEVEN hereby appoints ATF as the vendor of the PRODUCTS on
behalf of IY GROUP in the TERRITORY for the sole purpose of sale and
distribution of the PRODUCTS for resale only in the convenience stores
owned or operated by SEVEN-ELEVEN and the stores of the IY GROUP in the
TERRITORY. ATF hereby agrees to act as such vendor.


(4) B&J hereby agrees that all transactions with SEVEN-ELEVEN and the
stores of the IY GROUP will be executed through TOWER and ATF; however,
SEVEN-ELEVEN will be ultimately responsible for TOWER'S and ATF'S
actions and/or nonactions hereunder.


Article 2. (PRODUCTS)


In this Agreement, PRODUCTS means ice cream in 120ml cups and ice cream novelties (as described in Article 4, sub paragraph 4 and such other products as may be mutually agreed to), including their packaging bearing the trademarks of B&J (as defined in Article 12), manufactured by B&J in compliance with quality and technical specifications agreed upon between SEVEN-ELEVEN and B&J, and further within the range of reasonable allowances. All parties will not unreasonably withhold their approvals to any modifications of the specifications proposed or requested by the other party(ies). Under no circumstances will TOWER, IY GROUP, SEVEN-ELEVEN or ATF modify the PRODUCTS in any way, or modify the packaging of the PRODUCTS in any way, without the prior written consent of B&J.


Article 3. (Term)


(1) The term of this Agreement shall begin on and from the date of this
Agreement and end on March 31, 1999, unless sooner terminated pursuant
to Article 13 hereof. SEVEN_ELEVEN agrees to use its best efforts to
purchase 10,000,000 units or more during the first year for resale in
convenience stores in the TERRITORY. Either party may terminate this
Agreement effective at the end of the term or any renewal term by
giving notice to the other of its intention not to continue this
Agreement three (3) months prior to the expiration the term or any
renewal thereof; failure to so timely notify by either party will
constitute an extension of the term for another one (1) year term.


(2) In the event of termination of this Agreement at the end of the
term or any renewal term, or any sooner termination for any reason, B&J
will be freed and discharged, and the other parties to this Agreement
hereby expressly release and discharge B&J of and from any and all
obligations or liability whatsoever, arising hereunder or in connection
with any manner or thing relating to, or in any manner connected with,
the subject matter of this Agreement. The foregoing right of
termination and the additional right of non-renewal at the end of the
stated term are absolute, and neither B&J nor the other parties to this
Agreement will be liable to the other because of termination or
non-renewal hereof (whether with or without cause) for compensation,
reimbursement, or damages on account of the loss of prospective profits
on anticipated sales, or on account of expenditures, investments,
leases or commitments in connection with the business or good will of
B&J or the Japanese parties to this Agreement, or for any other reason
whatsoever. Nothing herein is intended to relieve any party from any
obligation to pay any unpaid balances for PRODUCTS ordered or shipped
hereunder prior to termination or expiration, unless such termination
or expiration is not caused by B&J.


(3) Pursuant to the provisions of Article 3 Paragraph 1, the
termination of this Agreement will operate as a cancellation, as of the
date thereof, of all orders that have not been prepared by B&J for
shipment, and thereafter B&J will have no obligation with respect to
orders so cancelled.


Article 4. (Test Market)


(1) The parties intend to launch the sale of the PRODUCTS in Japan in
April 1998. Such launch date may be adjusted by mutual agreement of the
parties, but the parties agree to use their respective best efforts to
insure that the launch date is not unduly delayed.


(2) The parties will commence a Test Market study on or about January
5, 1998. The Test Market will consist of five different product items
or stock keeping units, with 2,000 units of PRODUCTS for each product
item, or 10,000 total units of PRODUCTS. The parties will jointly
decide which of SEVEN-ELEVEN's convenience stores will participate in
the Test Market and the appropriate retail price points for the
PRODUCTS in the Test Market.


(3) All Test Market data will be shared by SEVEN-ELEVEN with B&J.


(4) The Test Market flavors mutually agreed upon by the parties are (i)
Banana Chocolate Walnut, (ii) Vanilla & Nuts, (iii) Chocolate Brownie
Walnut, (iv) Coffee Chocolate Chunk and (v) Vanilla & Peaches.


(5) B&J has supplied SEVEN-ELEVEN with thirty (30) units of each of the
listed five flavors for internal testing.


(6) SEVEN-ELEVEN will conduct the Test Market in an efficient manner so
as to maximize the amount of useful information obtained from the Test
Market.


Article 5. (Purchase Transactions)


(1) After the Test Market, SEVEN-ELEVEN will give B&J and TOWER its
(SEVEN-ELEVEN'S) sales-plan of PRODUCTS by items. By no later than
February 6, 1998 SEVEN-ELEVEN will give B&J the first 90 day rolling
forecast for the 3 months beginning March 1, 1998. B&J will supply the
form and requirements for the rolling forecast. The first 60 days of
the forecast are non-cancelable and nonrescheduleable and the last 30
days of the forecast are non-cancelable but are rescheduleable. The
forecast will be updated each month beginning on April l, 1998 and will
be provided to B&J by the first Monday of each month. However, in the
event SEVEN-ELEVEN and/or ATF request for the increase of the ordered
quantity, B&J will use its best efforts to provide these quantities.
TOWER will place corresponding firm orders for the PRODUCTS in
individual purchase orders between B&J and TOWER.


(2) The individual contracts of sale will become effective when the
written acceptance from B&J of the purchase order is issued by B&J.


(3) Delivery of all PRODUCTS to TOWER by B&J will be made on ex.
factory and / or ex distribution center basis at B&J's factory(ies) in
Vermont in the United States. Upon delivery to the shipper at B&J's
factory(ies) in Vermont, title to and all risks of loss or damage to
the PRODUCTS will pass to TOWER from B&J. Heat damage or other damage
caused by the shippers or occurring during shipment will be the sole
responsibility of TOWER and SEVEN-ELEVEN, and B&J will have no
responsibility therefor. SEVEN-ELEVEN has notified B&J that
SEVEN-ELEVEN has selected the firm of Itochu International Inc. of Los
Angeles, California to be SEVEN-ELEVEN's exclusive agent to ship the
PRODUCTS from Vermont to Japan.


(4) All costs of transporting, shipping and importing the PRODUCTS into
Japan, including any taxes, insurance premiums or costs, customs
duties, tariffs or other impositions, will be borne solely by TOWER and
SEVEN-ELEVEN.


(5) The items, prices and other specifications of each transaction
between B&J and TOWER will be as agreed upon by B&J and TOWER, subject
to the terms and conditions of this Agreement. SEVEN-ELEVEN may provide
information and suggestions to TOWER or B&J regarding items, prices and
other specifications relating to the sale of PRODUCTS under this
Agreement.


Article 6. (Price and Payment)


(1) Prices applicable to any orders for PRODUCTS to be placed by TOWER
to B&J will be quoted in U.S. dollars. Payments for the PRODUCTS will
be in U.S. dollars. The parties mutually agree that the purchase price
of the PRODUCTS is US$0.61 per unit. This purchase price is predicated
on the Japanese Yen / US $ exchange rate being Y120 / US$1. The price
of $0.61 per unit will remain fixed up to Y126 and down to Y114. In the
event the Japanese Yen / US$ exchange rate fluctuates 10% above Y126 or
10% below Y114 then the parties agree to share (50%/50%) the said 10%.
Said purchase price will be subject to adjustment as provided for
below. If the fluctuation is more than 10% in either direction then the
parties agree to meet to discuss a mutually acceptable purchase price.
The US$0.61 constitutes the initial price.


(2) The price will be subject to review by the parties every six
months beginning September 1, 1998. If the parties cannot agree upon an
amendment to the price, then B&J will have no obligation to ship any
orders until the parties have mutually agreed upon the price for the
items in that order or upon renewing or am ...