Area Development Agreement

Sample Area Development Agreement

EXfflBIT 4

YOVANA MULTIPLE UNIT DEVELOPMENT AGREEMENT

Franchisee

Street City State Zip Code

DEVELOPMENT AREA

(as defined in Appendix A)

EFFECTIVE DATE: (To be completed by Us)

Confidential

YOVANA MULTIPLE UNIT DEVELOPMENT AGREEMENT

This Agreement is entered into between TCBY Systems, LLC, a Delaware limited liability company whose principal office is located at 2855 East Cottonwood Parkway, Suite 400, Salt Lake City, UT

84121 ("we" or like terms), and ______________________________________________, a(n)

____________________________________ whose principal office is located at

____________________________________("you" or like terms), and shall become effective as stated in

subparagraph 10.K hereof. If you are a corporation, partnership, limited liability company or other legal entity, certain provisions to this Agreement also apply to its owners.

RECITALS

A. We have developed and established a unique business system and method for operating retail meal, treat, snack and beverage stores that feature fresh yogurt, smoothies, drinkable yogurt blends and frozen yogurt treats featuring seasonably fresh fruit, organic wholegrain granolas, freshly baked breads, pastries, premium coffee, espresso and organic teas, juices, and other products and beverages using certain standards and specifications (the "Yovana System");

B. The yogurt and other products are prepared according to specified recipes and methods, all of which we consider proprietary;

C. We own the Yovana trademark and other trademarks, service marks, trade names, trade dress and commercial symbols used in connection with the Yovana System (the "Marks");

D. You desire to obtain the right to develop and operate a specific number of directly-licensed Yovana stores using the Yovana System at authorized locations within a specific geographic area or areas pursuant to separate Yovana Franchise Agreements for each store; and

E. We are willing to grant such rights upon the terms and conditions provided herein.

In consideration of the foregoing and the mutual covenants and consideration below, you and we agree as follows:

DEVELOPMENT RIGHTS

1. The following provisions shall control with respect to the development rights granted

hereunder:

A. Grant of Rights; Development Area. We hereby grant to you, subject to all the

terms, conditions and provisions hereof, the right and license to establish and operate for your own account, but not to sublicense, a specific number of Yovana stores (referred to sometimes as "Yovana Stores" or " Stores") at Authorized Locations within the geographic area or areas set forth on Appendix A (the "Development Area") pursuant to our then current form of Yovana Franchise Agreement (the "Franchise Agreement"), and you hereby accept said license. Any capitalized terms not defined in this Agreement shall have the same definitions as in the Franchise Agreements you enter into with us pursuant to this Agreement. Your right to use the Marks, Trade Dress and Yovana System is specifically limited to the Development Area and to the Marks described in each Franchise Agreement entered into pursuant to this Agreement, as such Appendices may from time to time be modified and changed by us. In addition, unless otherwise

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agreed to by us in writing, you have no rights under this Agreement to sell Yovana or TCBY® products or other approved products identified by the Marks: (i) at any location other than the Store Premises within the Development Area; (ii) through any other channels or methods of distribution, including the Internet (or any other existing or future form of electronic commerce); or (iii) to any person or entity for resale or further distribution. During the term of this Agreement, we will not establish or license any third party to establish a Yovana Store identified by the Marks at any location within the Development Area so long as you are not in default in the observance or performance of any of your obligations under this Agreement or under any of your Franchise Agreements with us.

B. Rights Reserved to Us. During and after the term of this Agreement, we and our

Affiliates have the right to: (i) establish Yovana Retail Outlets, including Yovana Store franchises, licenses or businesses owned by us or our Affiliates, at any locations outside the Development Area we deem appropriate; (ii) distribute Yovana Products, TCBY products and any other products or services through alternative channels of distribution (as described in the Franchise Agreement) using the Marks both within and outside of the Development Area; and (iii) establish businesses, including TCBY stores, which are franchised, licensed or owned by us or our Affiliates at any locations both within and outside of the Development Area we deem appropriate, or distribute products or services both within and outside of the Development Area through alternative channels of distribution, which are similar to the Yovana Products under trade names, trademarks, service marks, trade dress or other commercial symbols other than the Marks.

DEVELOPMENT OBLIGATIONS

2. The following provisions shall control with respect to your development rights and

obligations:

A. Development Schedule. You shall comply with the development schedule set forth

in Appendix B (the "Development Schedule"). Accordingly, you shall have open and operating within the Development Area at least the agreed upon minimum, cumulative number of Yovana Stores by each development date (the "Minimum Development Quotas"). If you fail at any time to meet any of the Minimum Development Quotas, we shall have the right to terminate this Agreement in accordance with Paragraph 8. In lieu of exercising our right to terminate this Agreement in such case, however, we may grant you an extension to meet the missed Minimum Development Quota, provided you (i) agree, for the remainder of the term of this Agreement, to pay to us our standard, then current Initial Franchise Fee (with no multi-unit discount) on all Yovana Stores subsequently developed within the Development Area, as further described in subparagraph 3.B, and (ii)you immediately pay to us in advance an Initial Franchise Fee (as described in (i) above) for each Yovana Store for which you have not yet paid us an Initial Franchise Fee, but would have if you had met the missed Minimum Development Quota. If you agree to comply with the conditions described in the preceding sentence, we may grant you an extension to meet the missed Minimum Development Quota. In such case, however, we have the right to terminate this Agreement in accordance with Paragraph 8 if you subsequently fail to meet the extended Minimum Development Quota or any future Minimum Development Quotas. Your right to develop Yovana Stores within the Development Area is limited to the total number of Stores set forth on the Development Schedule (the "Store Development Total"). You represent that you have conducted your own independent investigation and analysis of the prospects for the establishment of Yovana Stores within the Development Area, and acknowledge and agree that the Development Schedule, the Store Development Total and each Minimum Development Quota are fair and reasonable.

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B. Conditions to Your Development of Stores. You may not develop a particular Yovana Store within the Development Area until all of the following conditions have been met:

1. Site Section and Acquisition of the Premises. You select a site and acquire the Premises for the proposed Yovana Store in accordance with terms and conditions described in the Franchise Agreement. Without limiting the terms and conditions of the Franchise Agreement, the Franchise Agreement requires you to provide information to us regarding, and obtain our written approval of, the Premises of any proposed Authorized Location for a Yovana Store within the Development Area before you sign a lease or sublease (which must be in a form satisfactory to us) for, or begin construction of, the Premises.

2. Your Submission of Information. You furnish to us such financial statements and other information regarding you, the operation of any of your other Yovana Stores within the Development Area, and the development and operation of the proposed Yovana Store (including, without limitation, investment and financing plans for the proposed Yovana Store) as we may reasonably require.

3. Your Compliance with Standard Financial Capability Criteria. You provide information to us that shows you are sufficiently capitalized to cover the investment necessary to develop and operate the proposed Yovana Store. You acknowledge and agrees that this requirement is necessary to ensure your proper development and operation of Yovana Stores, and preserve and enhance the reputation and goodwill of all Yovana Stores and the goodwill of the Marks. Our confirmation that you meet this capitalization criteria for the development of the proposed Yovana Store, however, does not in any way constitute a guaranty by us as to the success of you or the proposed Yovana Store.

4. You Are In Good Standing. You have not received a pending notice of default under this Agreement, any Franchise Agreement entered into pursuant to this Agreement or any other agreement between you and us or any of our affiliates, and the notice of default remains uncured, and you, if you are an entity, are in good standing.

5. Execution of Franchise Agreement. You enter into our then current form of Franchise Agreement with us for the proposed Yovana Store. You shall not open or operate any Yovana Stores for your own account, except pursuant to the terms of an executed Franchise Agreement. Each Franchise Agreement entered into pursuant to this Agreement is incorporated herein by reference.

C. Business Risks: No Financial Projections. You acknowledge that you have conducted an independent investigation of the prospects for the establishment of Yovana Stores in the Development Area, and recognize that the business venture contemplated by this Agreement involves business and economic risks and that your financial and business success will be primarily dependent upon the personal efforts of you, your management and employees. We expressly disclaim the making of, and you acknowledge that you have not received, any estimates, projections, warranties or guaranties, express or implied, regarding potential Gross Revenues, profits, earnings or the financial success of your Yovana business, or any Yovana Store you develop, in the Development Area pursuant to this Agreement, other than as expressly set forth in writing in our Uniform Franchise Offering Circular, receipt of which is hereby acknowledged by you.

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D. Potential Increases In Investment Requirements. You recognize and

acknowledge that this Agreement requires you to open additional Yovana Stores in the future pursuant to the Development Schedule. You further acknowledge that the estimated expenses and investment requirements set forth in Items 6 and 7 of our Uniform Franchise Offering Circular are subject to increase over time, and that future Yovana Stores opened and operated by you may involve greater initial investment and operating capital requirements than those stated in the Uniform Franchise Offering Circular provided to you prior to the execution of this Agreement.

FEES

3. You agree to pay to us the following fees:

A. Development Fee. You shall pay to us upon your execution of this Agreement a

Development Fee of $_____________, which has been determined by multiplying the Store

Development Total set forth in the Development Schedule by $_____________(the "Per Store

Fee"). The Development Fee, however, is fully earned by us upon the Effective Date of this Agreement and thereafter nonrefundable.

B. Initial Franchise Fees. In addition to the Development Fee, you are required to pay to us Initial Franchise Fees in accordance with the following:

1. Standard Initial Franchise Fees. You are required to pay to us an Initial Franchise Fee at the time you execute a Franchise Agreement for each Yovana Store you develop within the Development Area. The amount of the Initial Franchise Fee for each Yovana Store will be based our standard, then current Initial Franchise Fee, although we may reduce this amount to reflect a multi-unit discount depending on the number of Yovana Stores you develop. In any event, we will reduce the Initial Franchise Fee you are required to pay to us for each Yovana Stores by the Per Store Fee, provided you are in compliance with the Development Schedule and not otherwise in default under this Agreement or any other agreement with us or our affiliates at the time you execute a Franchise Agreement for a particular Yovana Store.

2. Initial Franchise Fees Payable Upon Extensions. If you fail at any time to meet any of the Minimum Development Quotas and in lieu of terminating this Agreement, we grant you an extension, as further described in subparagraph 2.A, the amount of the Initial Franchise Fee you must pay to us for each Yovana Store you subsequently develop within the Development Area will be based on our standard, then current Initial Franchise Fee, with no multi-unit discount, although we will still reduce the Initial Franchise Fee you are required to pay to us for each of these Yovana Stores by the Per Store Fee, as further described in subparagraph 3.B.I. In addition, as further described in subparagraph 2.A, any Minimum Development Quota extension we grant to you is conditioned upon your immediate payment to us of an Initial Franchise Fee (as described in preceding sentence) for each Yovana Store for which you have not yet paid us an Initial Franchise Fee, but would have if you had met the missed Minimum Development Quota.

3. Reduced Initial Franchise Fees. If during the term of this Agreement you have met all of the Minimum Development Quotas, have not exceeded the Store Development Total and desire to develop additional Yovana Stores up to the Store Development Total, the Initial Franchise Fee you will pay to us for each of these additional Yovana Stores will be one half (1/2) of the applicable Initial Franchise Fee (already

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reduced by any multi-unit discount), reduced by the Per Store Fee, as further described above in subparagraph 3.B.l. For example, assume you have met all of your Minimum Development Quotas and desire to develop two more Yovana Stores to get to your Store Development Total. Assume also that our standard, then current Initial Franchise Fee is $40,000, your reduced Initial Franchise Fee (which includes a $5,000 multi-unit discount) is $35,000 and your Per Store Fee is $10,000. The Initial Franchise Fee on each of your two additional Yovana Stores would be $7,500 (1/2 of $35,000 minus 10,000).

C. Other Fees Under Franchise Agreements. In addition to the Initial Franchise Fee,

you shall pay, as and when due, all fees, charges and assessments (including all continuing fees and marketing fees) set forth in each Franchise Agreement.

TERM

4. The term of this Agreement shall commence upon the Effective Date (as defined in

subparagraph 10.K) and end on___________, 20__, unless this Agreement is terminated in accordance

with Paragraph 8. You shall have no right to renew this Agreement.

FRANCHISEE'S OTHER OBLIGATIONS

5. Franchisee agrees to comply with the following terms and conditions:

A. Development Area Manager. You must designate one full-time Development Area manager (the "Development Area Manager") to be responsible for supervising the day-today operation and administration of all of your Yovana Stores in the Development Area, and managing the managers and staff of such Stores. Your Development Area Manager is identified on the Management Addendum attached to this Agreement. Your Development Area Manager must personally invest his or her full time and attention and devote his or her best efforts to his or her supervisory and management duties relating to your Yovana Stores in the Development Area. Notwithstanding the preceding sentence, your Development Area Manager may also serve as a store manager for one of your first 4 Yovana Stores in the Development Area. Your Development Area Manager, however, may not be a store manager, or a staff member or marketing team member of any of your Yovana Stores upon the earlier of (i) the date you have 5 or more Yovana Stores open in the Development Area, or (ii) the end of any fiscal year for which your Gross Revenues for all your Yovana Stores developed within the Development Area exceed $1,200,000 in the aggregate.

B. Development Area Owner/Operator. You must designate an Owner/Operator (the "Development Area Owner/Operator") who has an ownership interest in, has the authority to, and does in fact, actively direct your business affairs in regard to the development and operation of Yovana Stores in the Development Area, oversees your Development Area Manager and the general management of the day-to-day operations of your Yovana Stores in the Development Area, and has authority to sign on your behalf on all contracts and commercial documents. If you are made up of a number of individuals, one of you must act as the Development Area Owner/Operator. If you are a corporation, partnership or some other entity, you must designate as the Development Area Owner/Operator an individual who owns at least 5% of the corporation, partnership or other entity. In addition, if your Development Area Owner/Operator owns less than 51% of you (if you are a corporation, partnership or other entity), you must provide to us a corporate resolution or other appropriate documentation demonstrating that your Development Area Owner/Operator has the authority to direct your business affairs in regard to the development and operation of Yovana Stores in the Development Area, and to sign on your behalf on all contracts and commercial

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documents. Your Development Area Owner/Operator is identified on the Ownership and Management Addendum attached to this Agreement. Your Development Area Owner/Operator and your Development Area Manager may be one and the same person. At all times, however, you must have in place a separate store manager for each Yovana Store you develop within the Development Area. Further, your Development Area Owner/Operator must attend, at your expense, all annual franchise conventions we may hold or sponsor and all meetings relating to new products or product assembly or preparation procedures, new operational procedures or programs, training, store management, sales or sales promotion, or similar topics. If your Development Area Owner/Operator is not able to attend a meeting or convention, he or she must so notify us prior to the meeting and must have a substitute person acceptable to us attend the meeting.

C. Training. Your Development Area Manager and Development Area Owner/Operator (as well as any replacement for such individuals) must, comply with all of the training requirements we prescribe. Your Development Area Manager and Development Area Owner/Operator must attend training and complete training to our satisfaction. We have the right to determine when training takes place. Neither your Development Area Manager nor your Development Area Owner/Operator shall commence performing his or her supervisory and management responsibilities until he or she has successfully completed the training described in this subparagraph. In addition, the store manager from each of your Yovana Stores in the Development Area must comply with all of training requirements described in the Franchise Agreements.

D. Opening Assistance. Notwithstanding any terms and conditions in the Franchise Agreements to the contrary, you shall be responsible for providing initial opening assistance for the third and each subsequent Yovana Store you open and operate within the Development Area.

E. Confidential Information. You, the Entity Owners, and the store managers may not, during the term of this Agreement or thereafter, communicate, divulge or use for the benefit of any other person or entity any Confidential Information, except to such employees as must have access to it in order to operate the Yovana Stores in the Development Area. For purposes of this Agreement, "Confidential Information" means proprietary information contained in the operations manual and menus, or otherwise communicated to you in writing, verbally or through the internet or other online or computer communications, and any other knowledge or know-how concerning the methods of operation of the Store, and all proprietary information we disclose to you in connection with your development of Yovana Stores in the Development Area. Any and all Confidential Information, including, without limitation, proprietary ingredients, recipes, menus, methods, procedures, suggested pricing, specifications, processes, materials, techniques and other data, may not be used for any purpose other than operating a Yovana Store in the Development Area. No materials of any kind may leave the premises of any Yovana Store with a Yovana Store employee or customer unless expressly part of one of our marketing programs. This includes, without limitation, the operations manual, recipes (in any form), and any other confidential or proprietary materials. We may require that you obtain nondisclosure, confidentiality and non-compete agreements in a form satisfactory to us from the Entity Owners, the store managers and other key employees. In addition, we may require that you obtain nondisclosure and confidentiality agreements in a form satisfactory to us from your potential investors, financial institutions and suppliers. You must provide executed copies of all of the agreements described above to us upon our request.

F. Indemnification. You hereby waive all claims against us for damages to property or injuries to persons arising out of the business conducted hereunder or the operation of the Yovana Stores in the Development Area. You must fully protect, indemnify and hold us and our owners,

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directors, officers, successors and assigns and our affiliates harmless from and against any and all claims, demands, damages and liabilities of any nature whatsoever arising in any manner, directly or indirectly, out of or in connection with or incidental to the business conducted hereunder or the operation of the Yovana Stores in the Development Area (regardless of cause or any concurrent or contributing fault or negligence of us or our affiliates) or any breach by you or your failure to comply with the terms and conditions of this Agreement. We also reserve the right to select our own legal counsel to represent our interests, and you must reimburse us for our costs and attorneys' fees immediately upon our request as they are incurred. The indemnification and other obligations contained in this Paragraph 5 will continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.

TRANSFER

6. The following provision shall govern any transfer or proposed transfer:

A. Transfer By Us. This Agreement is fully transferable by us and will inure to the benefit of any transferee or other legal successor to our interest in this Agreement.

B. Transfer By You. We have entered into this Agreement with specific reliance upon the financial qualifications of you and your Entity Owner(s) and the personal experience, skills and managerial qualifications of you and your employees as being essential to the satisfactory operation of the business licensed hereunder. Consequently, neither your interest in this Agreement nor the business conducted hereunder, nor any part or all of the ownership of you, shall be voluntarily, involuntarily, directly or indirectly, assigned, assumed, sold, subdivided, sub-franchised or otherwise transferred by you or your owners, in whole or in part, unless you shall have received our prior written approval, which approval shall not unreasonably withheld. Any assignment or transfer without our approval shall constitute a breach hereof and shall convey no rights to or interests to such assignee. We may impose conditions to any proposed assignment or transfer, including, without limitation, the following: (i) you are in complete compliance with the terms of this Agreement, all Franchise Agreements and all other agreements between you and us or our affiliates, except for matters in dispute which have been submitted to arbitration or litigation, provided that you place in escrow, post a bond, or the Entity Owners sign a personal guarantee, that is satisfactory to us, in an amount equal to any damages claimed by us in any such dispute or make other arrangements satisfactory to us; (ii) the proposed transferee has been approved by us as meeting our then current standards for multiple stores franchisees; (iii) the proposed transferee has successfully complied with our then current training requirements; (iv) you assign to the proposed transferee all of your rights and interests in the Yovana business within the Development Area, including, without limitation, all of your rights and interests under this Agreement and under the Franchise Agreement for each Yovana Store within the Development Area, with the understanding that we have the right to reduce or eliminate any multi-unit discounts on the Initial Franchise Fees paid by transferee on any Yovana Stores it subsequently develops within the Development Area; (v) you pay to us the transfer fee due under each Franchise Agreement (and for each Yovana Store that has been open for less than a year, the amount of any multi-unit discount we gave to you on the Initial Franchise Fee for such Yovana Store, as further described below in this subparagraph), provided that we will return these fees, less our actual expenditures or disbursements that we make in direct connection with processing a proposed transfer, if we decline to consent to the transfer; (vi) you offer a right of first refusal to us, as further described in subparagraph 6.C; (vii) the transferee's owner's sign an undertaking and guaranty that is satisfactory to us; and (viii) you, each Entity Owner, and each guarantor, shall sign a general release of all claims arising out of or relating to this Agreement, your Yovana Stores within the Development Area or the parties' business relationship, in the form designated by us, releasing us and our affiliates, except for matters in dispute which have been

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submitted to arbitration or litigation, provided that you place in escrow, post a bond, or the Entity Owners sign a personal guarantee, that is satisfactory to us, in an amount equal to any damages claimed by us in any such dispute or make other arrangements satisfactory to us. Franchise Agreements for each Store you develop within the Development Area may be transferred only pursuant to their respective terms, except that for any Franchise Agreement that you transfer for a Yovana Store that has been open for less than a year, you must pay to us, in addition to the transfer fee due under the Franchise Agreement, the amount of any multi-unit discount we gave you on the Initial Franchise Fee for such Yovana Store.

C. Our Right of First Refusal. In the event you or one or more of your Entity Owners

desires to transfer to a third party or parties (i) any or all of your rights and interests in the Yovana business within the Development Area, including, without limitation, your rights and interests under this Agreement and under the Franchise Agreement for each Yovana Store within the Development Area, or (ii) a Controlling Interest (as defined in the Franchise Agreement) in you or one or more of your Entity Owners, you or your Entity Owners, as appropriate, must first offer to us a right of first refusal to purchase said rights and interest following the same procedure as outlined in Section 12.5 of the Franchise Agreement. In addition, in the event a proposed transfer results from your insolvency or the filing of any petition by or against you under any provisions of any bankruptcy or insolvency law, you first must offer to sell to us your interest in this Agreement following the same procedure as outlined in Section 12.5 of the Franchise Agreement. If we do not exercise our right of first refusal relating to a particular transfer after you have followed the procedure outlined in the Franchise Agreement, you shall be free during the timeframe set forth in the Franchise Agreement to complete said transfer, provided you do so in accordance with conditions described in subparagraph 6.B. Further, the rights of first refusal described in this subparagraph shall be in addition to and interpreted in conjunction with our right of first refusal in each Franchise Agreement.

DISPUTE RESOLUTION

7. Except for the injunctive relief and specific performance described in each

Franchise Agreement you enter into pursuant to this Agreement, any dispute between you and us or any of our or your affiliates arising under, out of, in connection with or in relation to this Agreement, the parties' relationship, or the Yovana business conducted pursuant to this Agreement shall be submitted to binding arbitration under the authority of the Federal Arbitration Act and shall be arbitrated in accordance with the then current rules and procedures and under the auspices of the American Arbitration Association. The arbitration shall take place in Salt Lake City, Utah, or at such other place as may be mutually agreeable to the parties. The decision of the arbitrators will be final and binding on all parties to the dispute; however, the arbitrators may not under any circumstances: (i) stay the effectiveness of any pending termination of this Agreement; (ii) assess punitive or exemplary damages; or (iii) make any award which extends, modifies or suspends any lawful term of this Agreement or any reasonable standard of business performance that we set. A judgment may be entered upon the arbitration award by any state or federal court in Utah or the state within which the Development Area is located. The prevailing party in any action or proceeding arising under, out of, in connection with, or in relation to this Agreement or the Yovana business conducted pursuant to this Agreement shall be entitled to recover its reasonable attorneys' fees and costs.

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DEFAULT AND TERMINATION

8. The following provisions shall apply with respect to default and termination:

A. Defaults. You shall be in default hereunder if we determine that: (i) you or any

Entity Owner or guarantor have breached any of the terms of this Agreement, including, without limitation, the failure to meet any of the Minimum Development Quotas, or any other agreement between you and us or our affiliates; (ii) you fail to execute a Franchise Agreement for any Yovana Store in the Development Area; (iii) you, an Entity Owner, or a guarantor are convicted of (or plead no contest to) any misdemeanor that brings or tends to bring any of the Marks into disrepute or impairs or tends to impair your reputation or the goodwill of any of the Marks or the Yovana Stores in the Development Area, or any felony directly related to the Yovana business; (iv) you make an assignment for the benefit of creditors or any similar voluntary or involuntary arrangement for the disposition of assets for the benefit of creditors; (v) you file a petition in bankruptcy requiring liquidation or have an involuntary petition filed against you in bankruptcy; or (vi) your become insolvent.

B. Termination By Us. Except as hereinafter provided, your failure to cure a default hereunder within 30 days from the date of receipt of a written notice of default given to you shall give us good cause to terminate this Agreement. Termination shall be accomplished by us giving written notice to you of termination, which notice shall state the grounds therefor and shall be effective: (i) immediately without any opportunity to cure in any case of voluntary bankruptcy of you, your making an assignment or entering into any similar arrangement for the benefit of creditors, any conviction of you or any Entity Owner or any guarantors of any felony directly related to the Yovana business or failure of you to cure within 24 hours of notice thereof any default under this Agreement which materially impairs the goodwill associated with any of the Marks; or (ii) 30 days after the date of receipt of such notice of termination in all other cases. In addition to the foregoing, this Agreement may be terminated by us upon any ground or by any period of notice as may be permitted from time to time by applicable law or regulation.

C. Termination By You. You shall be entitled to terminate this Agreement for good cause only; provided that you shall have given us written notice of a breach by us of a material provision of this Agreement and of the grounds for such breach and we shall have failed to cure such breach within 60 days of our receipt of such notice, provided however, is such default cannot reasonably be cured within such 60 day period, we shall not be deemed to be in default if we shall have commenced to cure such default within such 60 day period and we shall be proceeding diligently and in good faith to cure such default.

POST-TERM OBLIGATIONS

9. Upon the termination or expiration of this Agreement:

A. Reversion of Rights; Loss of Exclusivity and Development Rights: Continued Operation of Existing Stores. All rights and licenses granted to you under this Agreement to develop Yovana Stores in the Development Area shall revert to us and we shall be free to develop Yovana Stores at any locations within and outside of the Development Area on our own or by or with one or more third parties, subject to the restrictions in any Franchise Agreements that we have issued directly to you for Yovana Stores within the Development Area, which are in effect at the time of termination or expiration. In addition, you shall have no further rights, exclusive or otherwise, to develop further Yovana Stores within the Development Area and you shall immediately cease all use of the Marks, except as permitted under the terms of any Franchise

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Agreements that we have issued directly to you for Yovana Stores within the Development Area, which are in effect at the time of termination or expiration. With respect to any such Franchise Agreements, you shall retain your interest as a franchisee pursuant to the terms and conditions of those agreements, provided that you are not in default under such Franchise Agreements. You shall pay all sums due to us, our affiliates and designees. In addition, you shall pay all sums you owe to third parties which have been guaranteed by us or any of our affiliates.

B. Obligations Relating to Supervision and Training. You shall continue to comply with all of the supervisory and management obligations described in subparagraph 5.A and the training obligations described subparagraph 5.B as they relate to your continued operation of any Yovana Stores within the Development Area in accordance with subparagraph 9.A. Your failure to comply with this subparagraph 9.B shall constitute a default under the Franchise Agreement of each such Yovana Store.

C. Claims. Any claim arising out of or relating to this Agreement, the relationship of the parties, our operation of the Yovana System, or your operation of the business conducted hereunder will be barred unless filed before the expiration of the earlier of: (1) the time period for bringing an action under any applicable state or federal statute of limitations; (2) one year after the date upon which a party discovered, or should have discovered, the facts giving rise to an alleged claim; or (3) two years after the first act or omission giving rise to an alleged claim. Claims by us for the underreporting of Gross Revenues, for indemnification, or for claims related to our rights under any of the Marks shall be subject only to the applicable state or federal statute of limitations.

GENERAL PROVISIONS

10. The parties agree that this Agreement and the relationship created thereby shall be construed and enforced in accordance with the following provisions:

A. Severability. Each article, section, paragraph, term and provision of this Agreement will be considered severable and if, for any reason, any provision of this Agreement is held to be invalid, contrary to or in conflict with any applicable present or future law or regulation in a final, unappealable ruling issued by any court, agency or tribunal with competent jurisdiction in a proceeding to which we are a party, that ruling will not impair the operation of, or have any other effect upon, such other portions of this Agreement as may remain otherwise intelligible, and such other portions will continue to be given full force and effect and bind the parties, although any portion held to be invalid will be deemed not to be a part of this Agreement from the date the time for appeal expires, if you are a party thereto, otherwise upon your receipt of a notice of non-enforcement thereof from us.

B. Waivers by Either of Us. Either we or you may by written instrument unilaterally waive or reduce any obligation of or restriction upon the other under this Agreement, effective upon delivery of written notice of waiver to the other or such other effective date stated in the notice of waiver. Any waiver granted by us will be without prejudice to any other rights we may have, will be subject to our continuing review and may be revoked by us at any time and for any reason, effective upon delivery to you of 10 days' prior written notice.

C. Certain Acts Not to Constitute Waivers. Neither we nor you will be deemed to have waived or impaired any right, power or option reserved by this Agreement (including, without limitation, the right to demand exact compliance with every term, condition and covenant in this Agreement or to declare any breach to be a default and to terminate this Agreement prior

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to the expiration of its term) by virtue of (i) any custom or practice of the parties at variance with the terms of this Agreement; (ii) any failure, refusal or neglect of us or you to exercise any right under this Agreement or to insist upon exact compliance by the other with its obligations under this Agreement, including any waiver, forbearance, delay, failure or omission by us to exercise any right, power or option, whether of the same, similar or different nature, with respect to other Yovana Stores or franchise agreements; or (iii) our acceptance of any payments due from you after any breach of this Agreement.

D. Notices and Payments. All written notices and reports permitted or required to be delivered by the provisions of this Agreement will be deemed so delivered at the time delivered by hand; 1 business day after transmission by telegraph, facsimile, or other electronic system; 1 business day after being placed in the hands of a commercial courier service for next business day delivery; or 3 business days after placement in the United States Mail by registered or certified mail, return receipt requested, postage prepaid, and will be addressed to the parties at the addresses set forth on the first page of this Agreement or to such other address as a party may specify in a written notice to the other party. Any required payment or report not actually received by us during regular business hours on the date due (or postmarked by postal authorities at least 2 days prior thereto) will be deemed delinquent.

E. Joint and Several Liability. If you consist of 2 or more persons or Entities, whether or not as partners, joint venturers, or co-owners, the obligations and liabilities of each person and Entity to us are joint and several.

F. Binding Effect. Subject to the restrictions on Transfers contained in this Agreement, this Agreement is binding upon the parties hereto and their respective executors, administrators, heirs, assigns and successors in interest and will not be modified except by written agreement signed by both you and us.

G. Interpretation of Rights and Obligations. The following provisions will apply to and govern the interpretation of this Agreement, the parties' rights under this Agreement, and the relationship between the parties:

(1) Our Rights. Whenever this Agreement provides that we have a certain right, that right is absolute and the parties intend that our exercise of that right will not be subject to any limitation or review. We have the right to operate, administrate, develop, and change the Yovana System in any manner that is not specifically precluded by the provisions of this Agreement.

(2) Our Reasonable Business Judgment. Whenever we reserve or are deemed to have reserved discretion in a particular area or where we agree or are deemed to be required to exercise our rights reasonably or in good faith, we will satisfy our obligations whenever we exercise Reasonable Business Judgment in making our decision or exercising our rights. A decision or action by us will be deemed to be the result of Reasonable Business Judgment, even if other reasonable or even arguably preferable alternatives are available, if our decision or action is intended, in whole or significant part, to promote or benefit the Yovana System generally even if the decision or action also promotes a financial or other individual interest of us. Examples of items that will promote or benefit the Yovana System include, without limitation, enhancing the value of the Marks, improving customer service and satisfaction, improving product quality, improving uniformity, enhancing or encouraging modernization, and improving the competitive position of the Yovana System. Neither you nor any third party (including,

YOVANA MUD AGREEMENT #1925388 vl

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without limitation, a trier of fact), shall substitute its judgment for our Reasonable Business Judgment.

H. Independent Contractors. This Agreement does not create a fiduciary relationship

between the parties. We and you are independent contractors and nothing in this Agreement is intended to make either party a general or special agent, joint venturer, partner or employee of the other for any purpose. You will conspicuously identify yourself in all dealings as the owner of your Store under a franchise granted by us and will place such other notices of independent ownership on the forms, business cards, stationery, marketing and other materials as we have the right to require from time to time.

I. No Income Or Refund Warranties. You acknowledge that we do not warrant or

guarantee to you that you will derive income or profit from your Yovana business in the Development Area or that we will refund all or part of the Development Fee or the price paid for any of your Yovana Stores in the Development Area or repurchase any of the products, merchandise, furniture, fixtures, equipment, supplies or chattels supplied by us, any of our affiliates or an approved supplier if you are unsatisfied with your Yovana business, or any Yovana Store you develop, in the Development Area.

J. Terms of Other Development Agreements May Differ. You acknowledge that

our multiple unit development franchisees have or will be granted multiple unit development agreements at different times and in different situations, and further acknowledge that the terms and conditions of such multiple unit development agreements may vary substantially in form and substance from those contained in this Agreement.

K. Effective Date. The Effective Date shall be the date when this Agreement has been signed by both you and our President.

[Signatures on next page]

YOVANA MUD AGREEMENT #1925388 vl

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IN WITNESS WHEREOF, the parties have executed this Multiple Unit Development Agreement as of the dates written below.

FRANCHISEE: (For an Entity)

FRANCHISEE: (For an Individual)

Date:

Name:

(Please type or print name and type of entity)

By:.

Signature:,

(Signature of person signing on behalf of entity) Witness:,

(Please type or print name of person signing on behalf of entity)

Its:

(Please type or print title of person signing on behalf of entity

Witness:

Signature:.

(Please type or print)

Signature:^

Date:

Name:

Signature:. Witness:

Signature:.

(Please type or print)

US:

TCBY Systems, LLC

Date:

By:.

Its:

YOVANA MUD AGREEMENT #1925388 vl

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OWNERSHIP AND MANAGEMENT ADDENDUM TO

YOVANA

MULTIPLE UNIT DEVELOPMENT AGREEMENT

1. Entity OwnerCsY You represent and warrant to us that the following person(s) or entity, and

only the following person(s) or entity, will be your Entity Owner(s):

PERCENTAGE

NAME HOME ADDRESS OF INTEREST

2. Development Area Owner/Operator. You represent and warrant to us that the following

person, and only the following person, is your Development Area Owner/Operator:

NAME TITLE ADDRESS

3. Development Area Manager. You represent and warrant to us that the following person, and

only the following person, is your Development Area Manager:

NAME TITLE ADDRESS

4. Change. You must immediately notify us in writing of any change in the information contained in this Addendum and, at our request, prepare and sign a new Addendum containing the correct information. Upon notification, we will issue to you another addendum for you to execute.

5. Effective Date. This Addendum is effective as of this ______ day of

^_____________,20 .

Your Initials Our Initials

Ownership and Management Addendum to Yovana MUD Agreement #1925388 v 1

YOVANA MULTIPLE UNIT DEVELOPMENT AGREEMENT

APPENDIX A

Development Area Your development rights are limited to the following geographic area or areas:

Your Initials Our Initials

Development Area #1925388 vl

YOVANA

MULTIPLE UNIT DEVELOPMENT AGREEMENT

APPENDIX B

Development Schedule

1. Minimum Development Quotas. You agree to have open and operating at least the

following minimum, cumulative number of Yovana Stores by each development date:

CUMULATIVE NUMBER OF STORES TO BE OPENED AND OPERATED BY YOU	DEVELOPMENT DATES

2. Termination of this Agreement. If you fail at any time to meet any of the Minimum Development Quotas listed above, we shall have the right to terminate this Agreement in accordance with Paragraph 8.

3. Store Development Total. Provided you are in compliance with this Agreement

(including the Minimum Development Quotas described above), you may open and operate a total of____

Yovana Stores within the Development Area (the "Store Development Total").

Your Initials Our Initials

DEVELOPMENT SCHEDULE #1925388 vl

ACKNOWLEDGMENT ADDENDUM TO YOVANA MULTIPLE UNIT DEVELOPMENT AGREEMENT

As you know, you and we are entering into a Multiple Unit Development Agreement ("Development Agreement"), which allows you to develop and operate a specific number of directly-licensed YOVANA stores using the YOVANA system at authorized locations within the Development Area specified therein pursuant to separate YOVANA Franchise Agreements for each store. The purpose of this Acknowledgment Addendum is to determine whether any statements or promises were made to you that we have not authorized or that may be untrue, inaccurate or misleading, and to be certain that you understand the limitations on claims that may be made by you by reason of the offer and sale of the franchise and operation of your YOVANA business within the Development Area. Please review each of the following questions carefully and provide honest responses to each question.

Acknowledgments and Representations*.

1. Did you receive a copy of our Offering Circular (and all exhibits and attachments) at least 10 business days prior to signing the Development Agreement? Check one: (_) Yes L) No. If no, please comment:_______

1A. For Illinois residents or those wishing to locate their franchise in Illinois, did you receive a copy of our Offering Circular (and all exhibits and attachments) at least 14 calendar days prior to signing the Development Agreement? Check one: (_) Yes QNo. If no, please comment:______________________

2. Have you studied and reviewed carefully our Offering Circular and Development Agreement? Check one: C_)Yes (JNo. If no, please comment:____________________________________________________

3. Did you receive a copy of the Development Agreement at least five business days prior to the date on which the Franchise Agreement was executed? Check one: (J Yes QNo. If no, please comment:___________

4. Did you understand all the information contained in both the Offering Circular and Development Agreement? Check one QYes QNo. If no, please comment:____________________________________________

5. Have you conducted an independent investigation of the prospects for the establishment of YOVANA stores in the Development Area, and do you understand that the business venture contemplated by the Development Agreement involves business and economic risks and that your financial and business success will be primarily dependent upon the personal efforts of you, your management and employees? Check one: (__)Yes (__)No. If no, please comment:__________________________________________

6. Was any oral, written or visual claim or representation made to you which contradicted the disclosures in the Offering Circular? Check one: (_) Yes (JNo. If yes, please state in detail the oral, written or visual claim or representation:_______________________________________________________________________

7. Except for the earnings claim described in Item 19 and included as Exhibit 13 in our Offering Circular, did any employee or other person speaking on behalf of TCBY Systems, LLC ("TCBY") make any oral, written or visual claim, statement, promise or representation to you that stated, suggested, predicted or projected sales, revenues, expenses, earnings, income or profit levels at any YOVANA store or for your YOVANA business within the Development Area, or the likelihood of success of your YOVANA business within the Development Area? Check one: (_) Yes (_) No (_). If yes, please state in detail the oral, written or visual claim or representation:___________________________________________________________________

Except for the earnings claim described in Item 19 and included as Exhibit 13 in our Offering Circular, did any employee or other person speaking on behalf of TCBY make any statement or promise regarding the costs involved in operating a franchise or your YOVANA business within the Development Area that is not contained in the Offering Circular or that is contrary to, or different from, the information contained in the Offering Circular? Check one: (__) Yes (__)No. If yes, please comment:___________________________

Do you understand that while we will not establish or license any third party to establish a YOVANA store at any location within the Development Area during the term of the Development Agreement, so long as you are not in default in the observance or performance of any of your obligations under the Development Agreement or any related Franchise Agreements, you have no rights under the Development Agreement to sell YOVANA or TCBY® products or menu items: (i) at any location other than Authorized Locations within the Development Area; (ii) through any other channels or methods of distribution, including the Internet (or any other existing or future form of electronic commerce); or (iii) to any person or entity for resale or further distribution? Further, do you understand that during and after the term of the Development Agreement, we and our affiliates shall have the right, without compensation to you or any other franchisee, to establish or license third parties to establish: (i) YOVANA stores at any locations outside the Development Area; and (ii) competing businesses, including TCBY stores, identified by trademarks, service marks, trade names and commercial symbols other than the YOVANA trademarks, service marks, trade names and commercial

symbols at any locations both within and outside of the Development Area? Check one: (__) Yes (__)No.

If no, please comment:____________________________________________________________________

Do you understand that the Development Agreement and all related Franchise Agreements you enter into with us contain the entire agreement between you and us concerning your YOVANA business within the Development Area, meaning that any prior oral or written statements not set out in the Development

Agreement and related Franchise Agreements will not be binding? Check one: (__) Yes (__)No. If no,

please comment:________________________________________________________________________

Do you understand that our multiple unit development franchisees have or will be granted multiple unit development agreements at different times and in different situations, and that the terms and conditions of such multiple unit development agreements may vary substantially in form and substance from those contained in the Development Agreement? Check one: (__) Yes (__)No. If yes, please comment:_______

Do you understand that the success or failure of your YOVANA business within the Development Area will depend in large part upon your skills and experience, your business acumen, the hours you and your employees work, your locations, the number of locations you develop, the local market for products under the YOVANA service mark and other trademarks, service marks and trade names licensed to you by TCBY, interest rates, the economy, inflation, the number of employees you hire and their compensation, competition, lease terms and other economic and business factors? Further, do you understand that the economic and

business factors that exist at the time you sign the Development Agreement may change? Check one (__)

Yes (__)No. If no, please comment:________________________________________________________

13. Do you understand that the Development Agreement requires you to open additional Yovana stores in the future pursuant to the Development Schedule described in subparagraph 2.A of the Development Agreement, and that the estimated expenses and investment requirements set forth in Items 6 and 7 of our Offering Circular are subject to increase over time, and that future YOVANA stores opened and operated by you may involve greater initial investment and operating capital requirements than those stated in the Offering Circular? Check one: (__) Yes (__)No. If no, please comment:___________________________

14. Do you understand that we do not warrant or guarantee to you that you will derive income or profit from your YOVANA business within the Development Area or that we will refund all or part of the Development Fee or the price paid for any of your YOVANA stores in the Development Area or repurchase any of the products, merchandise, furniture, fixtures, equipment, supplies or chattels supplied by us, any of our affiliates or an approved supplier if you are unsatisfied with your YOVANA business, or any YOVANA store you develop, in the Development Area? Check one: (__) Yes (__) No. If no, please comment:__________

YOU UNDERSTAND THAT YOUR ANSWERS ARE IMPORTANT TO US AND THAT WE WELL RELY ON THEM. BY SIGNING THIS ADDENDUM, YOU ARE REPRESENTING THAT YOU HAVE CONSIDERED EACH QUESTION CAREFULLY AND RESPONDED TRUTHFULLY TO THE ABOVE QUESTIONS. IF MORE SPACE IS NEEDED FOR ANY ANSWER, CONTINUE ON A SEPARATE SHEET AND ATTACH.

NOTE: IF THE RECIPIENT IS A CORPORATION, PARTNERSHIP, LIMITED LIABILITY COMPANY OR OTHER ENTITY, EACH OF ITS PRINCIPAL OWNERS MUST EXECUTE THIS ACKNOWLEDGMENT.

Signed:________________________________________ Signed:_________________________________

Print Name:____________________________________ Print Name:_

Date: Date:

APPROVED ON BEHALF OF TCBY SYSTEMS, LLC

Signed________________________________________ By:_

Print Name:____________________________________ Title:.

Date: _______ Date:

*Such representations are not intended to nor shall they act as a release, estoppel or waiver of any liability incurred under the Illinois Franchise Disclosure Act or under the Maryland Franchise Registration and Disclosure Law.

GP:1747303v2

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CALIFORNIA ADDENDUM TO YOVANA MULTIPLE UNIT DEVELOPMENT AGREEMENT

In recognition of the Franchise Investment Law and the rules and regulations promulgated thereunder, the Franchise Agreement is modified as follows:

1. Section 7 of the Development Agreement requires binding arbitration. The arbitration will occur in Utah.

2. Section 6.B of the Development Agreement requires the execution of a general release if the franchise is transferred. This provision may not be enforceable under California law.

3. In all other respects, the Development Agreement will be construed and enforced according to its terms.

Each of the undersigned hereby acknowledges having read and understood this Addendum and consents to be bound by all of its terms.

Dated:____________________ TCBY SYSTEMS, LLC:

By.

Its

Dated:____________________ FRANCfflSEE(S):

(Signature)

NEW YORK ADDENDUM TO YOVANA MULTIPLE UNIT DEVELOPMENT AGREEMENT

1. Section <4^-j->|"fcAl is amended by adding the following to the end of that Section:

However, we will make no assignment except to an assignee who, in our good faith judgment, is willing and able to assume our obligations under this Agreement.

2. The following language is added at the end of Section 6.B:

provided, however, that any release shall not apply to any claims arising under the provisions of Article 33 of the General Business Law of the State of New York.

3. The following sentence is added to the end of Section 5.F:

However, you will not be required to indemnify us for any claims arising out of a breach of the Agreement by us or other civil wrongs of us.

4. Except as expressly provided herein, the Agreement shall remain in full force and effect. Dated:____________________ TCBY SYSTEMS, LLC:

By.

Its

Dated:____________________ FRANCHISEE(S):

(Signature)

WASHINGTON ADDENDUM TO YOVANA MULTIPLE UNIT DEVELOPMENT AGREEMENT

1. In any arbitration involving a franchise purchased in Washington, the arbitration site shall be either in the state of Washington, or in a place mutually agreed upon at the time of the arbitration, or as determined by the arbitrator.

2. In the event of a conflict of laws, the provisions of the Washington Franchise Investment Protection Act, Chapter 19.100 RCW, shall prevail.

3. A release or waiver of rights executed by you shall not include rights under the Washington Franchise Investment Protection Act except when executed pursuant to a negotiated settlement after the agreement is in effect and where the parties are represented by independent counsel. Provisions such as those which unreasonably restrict or limit the statute of limitations period for claims under the Act, or rights or remedies under the Act may not be enforceable.

4 It shall be an unfair or deceptive act or practice or an unfair method of competition and

therefore unlawful and a violation of this chapter for any person to:

(i) Refuse to renew a franchise without fairly compensating the franchisee for the fair market value, at the time of expiration of the franchise, of the franchisee's inventory, supplies, equipment, and furnishings purchased from the franchisor, and good will, exclusive of personalized materials which have no value to the franchisor, and inventory, supplies, equipment and furnishings not reasonably required in the conduct of the franchise business: Provided. That compensation need not be made to a franchisee for good will if (i) the franchisee has been given one year's notice of nonrenewal and (ii) the franchisor agrees in writing not to enforce any covenant which restrains the franchisee from competing with the franchisor: Provided further. That a franchisor may offset against amounts owed to a franchisee under this subsection any amounts owed by such franchisee to the franchisor.

(j) Terminate a franchise prior to the expiration of its term except for good cause.

Good cause shall include, without limitation, the failure of the franchisee to comply with lawful material provisions of the franchise or other agreement between the franchisor and the franchisee and to cure such default after being given written notice thereof and a reasonable opportunity, which in no event need be more than thirty days, to cure such default, or if such default cannot reasonably be cured within thirty days, the failure of the franchisee to initiate within thirty days substantial and continuing action to cure such default: Provided, That after three willful and material breaches of the same term of the franchise agreement occurring within a twelve-month period, for which the franchisee has been given notice and an opportunity to cure as provided in this subsection, the franchisor may terminate the agreement upon any subsequent willful and material breach of the same term within the twelve-month period without providing notice or opportunity to cure: Provided Further. That a franchisor may terminate a franchise without giving prior notice or opportunity to cure a default of the franchisee: (i) Is adjudicated a bankrupt or insolvent; (ii)

makes an assignment for the benefit of creditors or similar disposition of the assets of the franchise business; (iii) voluntarily abandons the franchise business; or (iv) is convicted of or pleads guilty or no contest to a charge of violating any law relating to the franchise business. Upon termination for good cause, the franchisor shall purchase from the franchisee at a fair market value at the time of termination, the franchisee's inventory and supplies, exclusive of (i) personalized materials which have no value to the franchisor; (ii) inventory and supplies not reasonably required in the conduct of the franchise business; and (iii) if the franchisee is to retain control of the premises of the franchise business, any inventory and supplies not purchased from the franchisor or on his express requirement: Provided, That a franchisor may offset against amounts owed to a franchisee under this subsection any amounts owed by such franchisee to the franchisor.

Dated:

TCBY SYSTEMS, LLC:

By. Its

Dated:

FRANCfflSEE(S):

(Signature)

GP :<4353056>ri3253821 v<4>[2]

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Area Development Agreement

Sample Area Development Agreement