GRANT OF EXCLUSIVE MANUFACTURING RIGHTS
THIS AGREEMENT is made as of the 1st day of July, 1993 (the
"Agreement"), between FAMOUS VALUE BRANDS, a division of PHILIP MORRIS
INCORPORATED, a Virginia corporation with offices at 120 Park Avenue, New York,
New York 10017 ("Manufacturer"), CORE-MARK INTERNATIONAL INC., a Nevada
corporation with offices at 395 Oyster Point Boulevard, Suite 415, South San
Francisco, California 94080 ("Parent"), CORE-MARK INTERRELATED COMPANIES, INC.,
a California corporation with offices as 395 Oyster Point Boulevard, Suite 415,
South San Francisco, California 94080 ("Licensor"), and C/M PRODUCTS, INC., a
California corporation with offices a 395 Oyster Point Boulevard, Suite 415,
South San Francisco, California 94080 ("C/M Products").
PRELIMINARY STATEMENTS
A. C/M Products engages in the business of marketing and selling
private label brand cigarettes, including cigarettes utilizing the trademarks
"BEST BUY-C-" and "BEST BUY AND DESIGN-TM-", as more particularly identified in
EXHIBIT A attached hereto (together with all amendments, variations or
modifications thereto, the "Trademarks"), which C/M Products licensed pursuant
to a license agreement with its corporate affiliate,
Licensor, which owns all right, title and interests to the Trademarks.
B. Parent, Licensor and C/M Products (together with their respective
affiliates, the "Core-Mark Group") desire to grant and convey to Manufacturer
exclusive rights to manufacture for the Core-Mark Group any and all proprietary
private label brand cigarettes for sale and distribution in the United States
for the term of this Agreement, and Manufacturer desires to acquire such
exclusive manufacturing rights, on the terms and conditions contained in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements contained herein, the parties hereto agree as
follows:
2
ARTICLE I.
EXCLUSIVE MANUFACTURING RIGHTS
Section 1.1 GRANT OF EXCLUSIVE MANUFACTURING RIGHTS. Subject to
the terms and provisions of Section 2.1(b), Parent, Licensor and C/M Products,
each of them for themselves and for their respective affiliates, successors and
assigns (collectively and individually, the "Grantor") do hereby grant, sell,
coney, transfer, assign and deliver to Manufacturer, and its successors and
assigns, free and clear of all liens, charges, claims, encumbrances or rights or
interests of third parties of any nature and description whatsoever, exclusive
rights to manufacture for sale and distribution in the United States all and any
private label brand cigarettes bearing the Trademarks or any other trademarks or
trade names owned or licensed now or hereafter by or to the Grantor in
connection with such private label brand cigarettes ("Private Label Products")
for a period commencing on and as of the date hereof and continuing until the
termination of this Agreement as provided in Section 4.1 hereof.
[Section 1.2 has been omitted and filed separately
with the Commission pursuant to Rule 406.]
3
[This page has been left blank intentionally.]
4
Section 1.3 PRE-EXISTING CONTRACTUAL ARRANGEMENT. Manufacturer
acknowledges that C/M Products has a pre-existing manufacturing agreement with
another tobacco company pursuant to which certain Private Label Products bearing
the Trademarks are manufactured for C/M Products for sale to a single account
located in California (as and to the extent the same is in effect on the date
hereof, the "Pre-existing Agreement"). Manufacturer hereby grants C/M products
a license and interest in the exclusive manufacturing rights granted to
Manufacturer hereby, for a period equal to the shortest applicable term of the
Pre-existing Agreement, to the extent necessary to allow such Pre-existing
Agreement to be performed in accordance with its terms and without contravening
the
5
terms of this Agreement or infringing upon the right, title and interest of
Manufacturer in and to the exclusive manufacturing rights granted to
Manufacturer hereby. Manufacturer further agrees that C/M Products' performance
of its obligations under the Pre-existing Agreement beyond the shortest
applicable termination date, and consistent with its rights under the Pre-
existing Agreement, will terminate such agreement at the earliest opportunity;
PROVIDED FURTHER that C/M Products shall not be required to terminate or
exercise any right to terminate the Pre-existing Agreement with respect to
products manufactured thereunder bearing the Trademarks for the single account
referenced above so long as such account specifically requires that products
bearing the Trademark manufactured for C/M Products be manufactured under the
Pre-existing Agreement. C/M Products represents and warrants to Manufacturer
that the terms and provisions of this Agreement will not cause a breach by C/M
Products of its obligations under the Pre-existing Agreement.
6
Section 1.4 OTHER EXCLUSIVE RELATIONSHIPS. None of Parent,
Licensor or C/M Products, or any of their respective affiliates, will enter into
any agreements, arrangements or understandings with respect to the exclusive
distribution within any regional or national geographic area within the United
States of any private label brand cigarettes manufactured by any manufacturer
other than Manufacturer, and each of such persons hereby represents to
Manufacturer that none of such persons is on the date hereof a party to any such
agreements, arrangements or understandings. Without limiting the generality of
the foregoing and subject to Section 1.3, Parent, Licensor or C/M Products, and
their respective affiliates, will only distribute Private Label Products that
Manufacturer has declined to manufacture pursuant to the terms of this
Agreement. For purposes of this Agreement, Private Label Products shall also
include without limitation any private label brand cigarettes for which any
member of the Core-Mark Group becomes the exclusive supplier to two or more
competing retail customers.
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ARTICLE II.
MANUFACTURE AND SALE OF PRIVATE LABEL PRODUCTS
Section 2.1 MANUFACTURING AGREEMENT.
(a) Simultaneously with the execution of this Agreement, C/M Products
and Manufacturer have entered into that certain Manufacturing Agreement for
"Best Buy" Cigarettes, dated as of the date hereof, a copy of which is attached
hereto as EXHIBIT B.
(b) Manufacturer shall have the option to enter into a manufacturing
and sales agreement, substantially in the form of EXHIBIT C hereto (including,
without limitation, Section 1.2 of said EXHIBIT C), with respect to each Private
Label Product (other than Private Label Products bearing the Trademarks) now or
hereafter during the term of this Agreement sold by or proposed to be sold by,
through or on behalf of any member of the Core-Mark Group ("Other Private Label
Products") in the United States. The Manufacturer's option with respect to
Other Private Label Products shall be exercisable for a period of 45 days
following the detailed presentation to Manufacturer by the Core-Mark Group of
the requirements (including package and product configuration requirements) for
such Other Private Label Product. In the event that Manufacturer declines to
8
exercise its option with respect to Other Private Label Products, or such option
expires without having been exercised by Manufacturer, then the Core-Mark Group,
or any of them, shall be entitled to have such Other Private Label Product
manufactured according to the requirements presented to Manufacturer by another
manufacturer of the Core-Mark Group's selection.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
Section 3.1 REPRESENTATION AND WARRANTIES OF MANUFACTURER.
Manufacturer hereby represents and warrants to C/M Products as follows:
(a) Manufacturer has the requisite corporate power and authority to
enter into this Agreement, and to perform its obligations hereunder. The
execution and performance of this Agreement by Manufacturer has been duly
authorized by all necessary corporate action on the part of Manufacturer and
will not contravene or violate any agreements or obligations of Manufacturer.
This Agreement constitutes the valid and binding obligations of Manufacturer
enforceable in accordance with its terms.
9
(b) Manufacturer shall comply with all applicable U.S. federal laws
relating to the manufacture and packaging of Private Label Products under this
Agreement.
Section 3.2 REPRESENTATIONS AND WARRANTIES OF THE CORE-MARK GROUP.
Parent, Licensor and C/M Products each, jointly and severally, hereby represents
and warrants to Manufacturer as follows:
(a) Each of Parent, Licensor and C/M Products has the requisite
corporate power and authority to enter into this Agreement, and to perform its
obligations hereunder. The execution and performance of this Agreement by each
of Parent, Licensor and C/M Products has been duly authorized by all necessary
corporate action on the part of such party and will not contravene or violate
any agreements to which any of such party or any member of the Core-Mark Group,
as the case may be, is a party. This Agreement constitutes the legal, valid and
binding obligations of Parent, Licensor and C/M Products enforceable against
Parent, Licensor and C/M Products in accordance with its terms.
(b) C/M Products has engaged in the business of marketing and selling
Private Label Products bearing the
10
Trademarks pursuant to a valid and effective license to use the Trademarks for
such purpose from the Licensor, and Licensor is the legal and beneficial owner
of the Trademarks. For the remaining term of this Agreement, C/M Products will
maintain its rights to use the Trademarks pursuant to this Agreement as set
forth in its license from the Licensor.
(c) Parent, Licensor and C/M Products shall comply with all
applicable laws and regulations concerning the marketing and distribution of the
Private Label Products.
ARTICLE IV.
TERMINATION
Section 4.1 TERM. Unless earlier terminated pursuant to
Section 4.2 of this Agreement, this Agreement shall continue for an initial term
(the "Initial Term") ending on December 31, 1998 and thereafter this Agreement
shall continue in effect upon the same terms and conditions for one or more
additional one-year periods (each a "Renewal Period") unless, at least ninety
(90) days prior to the end of the Initial Term, or any successive Renewal
Period, either party
11
provides the other with written notice of its intent not to renew this
Agreement.
Section 4.2 TERMINATION RIGHTS. Manufacturer shall have the right
to terminate this Agreement following the breach by any of Parent, Licensor and
C/M Products of any representation or warranty made by Parent, Licensor or C/M
Products or of any other term or provision of this Agreement or following the
occurrence of any of the following events:
(a) if any trademark or trade name owned by any member of the
Core-Mark Group, including, without limitation, the Trademarks, relating to
Private Label Products that are manufactured by Manufacturer, are, directly or
indirectly, sold, transferred or assigned to any person not a member of the
Core-Mark Group; or
(b) if the Core-Mark Group, for any reason, shall cease, or shall
have made any determination to cease, to be actively engaged in the business of
marketing and selling Private Label Products;
(c) if the manufacturing agreement entered into pursuant to
Section 2.1(a) or any other manufacturing agreement entered into pursuant to
Section 2.1(b) shall
12
be terminated pursuant to Section 3.2 of such manufacturing agreement.
Section 4.3 SURVIVAL. The representations and warranties of
Parent, Licensor and C/M Products and Manufacturer made under this Agreement
shall survive the termination of this Agreement. The provisions of
Sections 1.2(b) and of Article V shall survive the termination of this Agreement
as contemplated therein.
ARTICLE V.
GENERAL PROVISIONS
Section 5.1 RELATIONSHIP OF PARTIES. The relationship of the
parties is that of independent contractors. Neither party shall in furtherance
of this Agreement represent or hold itself out as agent, legal representative,
joint venturer, partner, employee or servant of the other. Nothing contained in
this Agreement is intended to create, nor should be construed as creating, an
association of agent and principal, partners, or joint venturers between the
parties, or their affiliates, employees and agents.
Section 5.2 CONFIDENTIALITY. The parties agree to keep strictly
confidential, and not disclose to third
13
parties, any information, either oral or written, concerning the terms of this
Agreement and the transactions contemplated herein. Disclosure may be made when
required by applicable law (but only to the extent so required). Any party from
whom disclosure is required shall notify the other party prior to any such
disclosure.
Section 5.3 NOTICES. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given either upon personal delivery or upon transmission by
telecopier or one (1) business day after deposit with an overnight, private
courier delivery service, addressed as follows:
Manufacturer: Philip Morris Incorporated
Famous Value Brands Division
120 Park Avenue
New York, New York 10017
Attention: Director,
National Accounts
Parent, Core-Mark International Inc.
Licensor or 395 Oyster Point Boulevard, Suit 415
C/M Products: South San Francisco, California 94080
Attention: President
Section 5.4 SEVERABILITY. If any provision of this Agreement is
determined to be invalid or unenforceable, the provisions shall be deemed to be
14
severable from the remainder of this Agreement and shall not cause the
invalidity or unenforceability of the remainder of this Agreement.
Section 5.5 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York (other than the
choice of law provisions thereof).
Section 5.6 ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements, contracts, negotiations
and understandings between them. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by all parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed,
or shall constitute, a waiver of any other provision. Nothing in this Agreement
shall be deemed to limit, modify or otherwise amend the Amended and Restated
Trademark License Agreement, dated the date hereof, between Manufacturer and
Licensor.
Section 5.7 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which
15
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
16
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered as of the date first above written.
FAMOUS VALUE BRANDS, a division
of PHILIP MORRIS INCORPORATED,
a Virginia Corporation
By: /S/MICHAEL E. SZYMANCZYK
------------------------
Its: Senior Vice President - Sales
Dated: 12/20/93
CORE-MARK INTERNATIONAL INC.
By: /s/Gary L. Walsh
----------------
Gary L. Walsh
President
Dated: 12/20/93
C/M PRODUCTS, INC.
By: /s/Gary L. Walsh
----------------
Gary L. Walsh
President
Dated: 12/20/93
CORE-MARK INTERRELATED COMPANIES, INC.
By: /s/Gary L. Walsh
----------------
Gary L. Walsh
President
Dated: 12/20/93
17
EXHIBIT A
NOTE: Product description, warning notice, UPC symbol and other elements to
be modified as appropriate.
[Picture of "Best Buy" packaging.]
18
EXHIBIT B
Manufacturing Agreement for "Best Buy" Cigarettes
[Filed as Exhibit 10.2 to this Registration Statement]
19
Exhibit C
Form of Manufacturing Agreement
for Private Label Cigarettes
MANUFACTURING AGREEMENT FOR PRIVATE LABEL CIGARETTES
THIS AGREEMENT is made as of the ____ day of _____, 199_ (this
"Agreement"), between FAMOUS VALUE BRANDS, a division of PHILIP MORRIS
INCORPORATED, a Virginia corporation with offices at 120 Park Avenue, New York,
New York 10017 ("Manufacturer"), and ____________________, a __________
corporation with offices at ______________________________ ("Customer").
PRELIMINARY STATEMENTS
A. Customer desires to engage in the business of marketing and
selling cigarette products bearing the trademarks __________________________, as
more particularly identified in EXHIBIT A attached hereto (together with all
amendments, variations or modifications thereto, the "Trademarks") [, pursuant
to a license agreement with its corporate affiliate, Core-Mark Interrelated
Companies, Inc. ("Licensor"), which owns all rights, title and interests to the
Trademarks.]
B. Manufacturer desires to manufacture and sell, and Customer
desires to purchase, on the terms and conditions contained in this Agreement,
Customer's
requirements for private label brand cigarettes utilizing the Trademarks in the
product and packaging configurations currently manufactured by Manufacturer for
Customer or otherwise accepted by Manufacturer as described herein (the
"Products").
Now, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements contained herein, the parties hereto agree as
follows:
ARTICLE I
MANUFACTURE AND SALE OF PRODUCTS
Section 1.1 PURCHASE OF REQUIREMENTS. Customer agrees to purchase
from Manufacturer, and Manufacturer agrees, subject to the terms and conditions
of this Agreement, including, without limitation, Section 1.3, to manufacture
and sell to Customer, Customer's entire requirements for the Products for all of
Customer's outlets, divisions, distributors and affiliates.
[Section 1.2 has been omitted and filed separately
with the Commission pursuant to Rule 406.]
2
Section 1.3 FORCE MAJEURE. Manufacturer's obligation to
manufacture and deliver the Products under this Agreement shall be to use its
reasonable efforts to satisfy the requirements of Customer for the Products,
which shall not imply any obligation to incur costs, expenses or liabilities
other than usual and customary costs and expenses associated with the
manufacture of private label cigarette products consistent with Manufacturer's
past experience. Without limiting the generality of the foregoing or other
provisions in this Agreement with respect to the limitation of Manufacturer's
obligations or liabilities hereunder, Manufacturer shall have no obligation or
liability for satisfying the requirements of Customer, and shall have no
liability for the consequences of (including without limitation for
consequential damages for ) any failure to perform, or default in performing,
any of its obligations under this Article I of this Agreement if that failure
arises out of, is based upon or results
3
from Force Majeure (as defined below). For purposes of this Agreement, "Force
Majeure" shall mean war (whether declared or not); revolution; invasion;
insurrection; riot; civil commotion; mob violence; sabotage; blockade; military
or usurped power; lightning; serious destruction; explosion; fire; storm; high
winds; drought or other shortage of water; flood; earthquake; strike; labor
disturbances; acts or restraints of governmental or quasi-governmental
authorities; or any act of God beyond the control of Manufacturer. To the
extent that a Force Majeure condition or conditions exists which prevents
Manufacturer from manufacturing and delivering to Customer its full requirement
of the Products, Customer shall have the right to purchase such Products from
other manufacturers for so long as Manufacturer is unable to fulfill its
obligations under this Agreement.
Section 1.4 NEW PRODUCT CONFIGURATIONS. In the event that Customer
shall desire to market and sell private label brand cigarettes utilizing the
Trademarks but in product or package configurations other than those of the
Products ("New Products"), customer shall present to Manufacturer detailed
specifications with respect to such New Products, whereupon Manufacturer shall
have the option exercisable for a period of 45 days to include such New Products
within the meaning of
4
the term Products" as used in this Agreement.
[A sentence has been omitted and filed separately
with the Commission pursuant to Rule 406.]
In the event that Manufacturer elects not to include such New Products within
the meaning of "Products" as used in this Agreement, Customer shall be entitled
to obtain its requirements for such New Products from a manufacturer other than
Manufacturer.
Section 1.5 TRADEMARK DESIGN MODIFICATIONS. Customer agrees that
it will give Manufacturer reasonable prior notice, but in any event not less
than 45 days prior notice, of any design modifications or changes to the
Trademarks after the date of this Agreement.
[A sentence has been omitted and filed separately
with the Commission pursuant to Rule 406.]
5
[Section 1.6 has been omitted and filed separately
with the Commission pursuant to Rule 406.]
Section 1.7 AUTHORIZED DISTRIBUTORS. From time to time customers
may enter into agreements with distributors or other persons ("Authorized
Distributors") for the distribution and sale of the Products, and upon written
notification to Manufacturer by customer, Manufacturer shall sell the Products
manufactured by it directly to such Authorized Distributors to satisfy their
requirements for the Products on and subject to all the provisions of this
Agreement, including without limitation Section 1.2 hereof, with respect to the
manufacture and sale of the Products for Customer's and its affiliates'
requirements. Nothing contained in this Section 1.7 shall prevent Manufacturer
from paying to Customer any
6
Allowances that may be offered by Manufacturer in connection with sales of
Products to Authorized distributors. Without limiting the generality of the
foregoing, Manufacturer reserves the right to refuse orders from Authorized
Distributors in the event such Authorized Distributors are ineligible to
purchase product from Manufacturer based on Manufacturer's then current terms,
conditions and requirements, including, without limitation, standard credit
terms. Manufacturer shall have no liability or obligation to any authorized
Distributor arising out of or based upon this Agreement, and such Authorized
Distributors shall not be entitled to reliance upon or the benefit of any of the
provisions of this Agreement as a third party beneficiary or otherwise.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
Section 2.1 REPRESENTATIONS AND WARRANTIES OF MANUFACTURER.
Manufacturer hereby represents and warrants to Customer as follows:
(a) Manufacturer has the requisite corporate power and authority to
enter into this Agreement, and to perform its obligations hereunder. The
execution and
7
performance of this Agreement by Manufacturer has been duly authorized by all
necessary corporate action on the part of Manufacturer and will not contravene
or violate any agreements or obligations of Manufacturer. This Agreement
constitutes the valid and binding obligations of Manufacturer enforceable in
accordance with its term.
(b) Manufacturer shall comply with all applicable U.S. federal laws
relating to the manufacture and packaging of the Products under this Agreement.
Section 2.2 REPRESENTATIONS AND WARRANTIES OF CUSTOMER. Customer
hereby represents and warrants to Manufacturer as follows:
(a) Customer has the requisite corporate power and authority to enter
into this Agreement, and to perform its obligations hereunder. The execution
and performance of this Agreement by Customer has been duly authorized by all
necessary corporate action on the part of Customer and will not contravene or
violate any agreements to which [either] Customer [or Licensor , as the case may
be,] is a party. This Agreement constitutes the legal, valid and binding
obligations of
8
customer enforceable against Customer in accordance with its terms.
(b) Customer['s use of the Trademarks has been pursuant to a valid
and effective license from Licensor, and Licensor] is the legal and beneficial
owner of the Trademarks. For the remaining term of this Agreement, Customer
will maintain its rights to use the Trademarks [as set forth in its license from
the Licensor].
(c) If [Licensor or] Customer shall sell, convey or otherwise
transfer any or all of their respective rights in, to or relating to the
Products, including, without limitation, any right, title or interest in or to
the Trademarks, [Licensor and] Customer shall ensure that any such sale,
conveyance or other transfer will be subject to and will in no way whatsoever
abrogate, limit or modify Manufacturer's rights to manufacture and supply, and
the obligation of Core-Mark International Inc., [Licensor] and Customer
(together with their respective affiliates, the "Core-Mark Group") to purchase,
all the Core-Mark Group's requirements for all the Products pursuant to the
terms and conditions of this Agreement.
9
(d) Customer shall comply with all applicable laws and regulations
concerning the marketing and distribution of the Products.
ARTICLE III.
TERM OF AGREEMENT
Section 3.1 TERM. Unless earlier terminated pursuant to Section
3.2 hereof, this Agreement shall continue for an initial term ("the Initial
Term") of five (5) years following the date of this Agreement. Following the
Initial Term, this Agreement shall continue in effect upon the same terms and
conditions for one or more additional one-year periods (each a "Renewal Period")
unless, at least ninety (90) days prior to the end of the Initial Term, or any
successive Renewal Period, either party provides the other with written notice
of its intent not to renew this Agreement.
[Section 3.2 has been omitted and filed separately
with the Commission pursuant to Rule 406.]
10
[This page has been left blank intentionally.]
11
Section 3.3 OBLIGATION OF CUSTOMER UPON TERMINATION . Upon the
termination of this Agreement, Customer shall be obligated to pay to
Manufacturer reasonable packaging and unfinished Product inventory costs
resulting from such termination. Manufacturer shall furnish Customer with a
written accounting of all such costs which shall be due and payable by Customer
within thirty (30) days. All finished Product inventory shall be purchased by
customer at the then prevailing list prices of Manufacturer and upon the terms
and conditions of this Agreement. Notwithstanding the foregoing, Customer shall
not be obligated to purchase finished Product inventory hereunder if this
Agreement is terminated pursuant to Section 3.2 hereof, but Manufacturer shall
be entitled to sell such finished Product inventory to third persons in the
ordinary course of its business. The volume of packaging and finished Product
inventory which Customer may be required to purchase hereunder shall not be
unreasonably
12
large or excessive based on the usual and customary course of dealings among
Manufacturer and Customer pursuant to this Agreement.
Section 3.4 SURVIVAL. The representations and warranties of
Customer and Manufacturer made under this Agreement shall survive the
termination of this Agreement.
ARTICLE IV.
GENERAL PROVISIONS
Section 4.1 RELATIONSHIP OF PARTIES. The relationship of the
parties is that of independent contractors. Neither party shall in furtherance
of this Agreement represent or hold itself out as agent, legal representative,
joint venturer, partner, employee or servant of the other . Nothing contained
in this Agreement is intended to create, nor should be construed as creating, an
association of agent and principal, partners, or joint venturers between the
parties, or their affiliates, employees and agents.
Section 4.2 CONFIDENTIALITY. The parties agree to keep strictly
confidential, and not disclose to third parties, any information, either oral or
written,
13
concerning the terms of this Agreement and the transactions contemplated
herein. Disclosure may be made when required by applicable law (but only to the
extent so required). Any party from whom disclosure is required shall notify
the other party prior to any such disclosure.
Section 4.3 NOTICES. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given either upon personal delivery or upon transmission by
telecopier or one (1) business day after deposit with an overnight, private
courier delivery service, addressed as follows:
Manufacturer: Philip Morris Incorporated
Famous Value Bands Division
120 Park Avenue
New York, New York, 10017
Attention: Director, National Accounts
Customer: ________________________________
________________________________
________________________________
Attention: President
Section 9.4 SEVERABILITY. If any provision of this Agreement is
determined to be invalid or unenforceable, the provisions shall be deemed to be
severable from the remainder of this Agreement and shall
14
not cause the invalidity or unenforceability of the remainder of this Agreement.
Section 4.5 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York (other than the
choice of law provisions thereof).
Section 4.6 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 4.7 ASSIGNABILITY. Either party shall have the right to
assign this Agreement and all of its rights and obligations hereunder to any
affiliate thereof upon the written consent of the other party, which consent
shall not be unreasonably withheld; provided that no such assignment shall
relieve the assigning party of its obligations under this Agreement, including,
without limitation, in the case of an assignment by Customer's obligation to
purchase all of its requirements for Products from Manufacturer; and provided,
further, that no such consent shall be effective unless and until the assignee
has executed an instrument in favor of the non-assigning
15
party agreeing to be bound by all the term and conditions of this Agreement.
For purposes of this Agreement (whether by operation of law or otherwise), an
affiliate of a party hereto is defined as any entity which controls, is
controlled by, or is under common control with such party. No other assignments
of this Agreement, or of any of the rights hereunder, shall be permitted without
the express written consent of the other party, which consent may be withheld in
such party's sole and absolute discretion.
Section 4.8 ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement between the parties with respect to the Products and supersedes
all prior and contemporaneous agreements, contracts, negotiations and
understandings between them (other than the Grant of Exclusive manufacturing
Rights, dated as of December 1, 1993, between Manufacturer, C/M Products, Inc.,
and certain of its affiliates). No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by all parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed,
or shall constitute, a waiver of any other provision.
16
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered as of the date first above written.
______________________ FAMOUS VALUE BRANDS, a
division of PHILIP MORRIS
INCORPORATED, a VIRGINIA
corporation
By: ___________________________ By: ________________________
Gary L. Walsh
President Its: _________________________
Each of the undersigned hereby
agrees and consents to each of the
terms and conditions of this Agreement:
CORE-MARK INTERNATIONAL INC.
By: ___________________________
Gary L. Walsh
President
[CORE-MARK INTERRELATED COMPANIES, INC.
By: ___________________________
Gary L. Walsh
President]
17