AMENDED AND RESTATED
TRADEMARK LICENSE AGREEMENT
TRADEMARK LICENSE AGREEMENT, dated as of July 1, 1993 (this
"Agreement"), by and between FAMOUS VALUE BRANDS, a division of PHILIP MORRIS
INCORPORATED, a Virginia corporation with offices at 120 Park Avenue, New York,
New York 10017 ("PM"), and CORE-MARK INTERRELATED COMPANIES, INC., a California
corporation with offices at 395 Oyster Point Boulevard, Suite 415, South San
Francisco, California 94080 ("Licensor").
WHEREAS, this Agreement is an amendment and restatement of that
certain Trademark License Agreement, dated as of April 15, 1986, as amended (the
"Original Agreement"), between PM and Licensor, and is being made to extend the
term of the Original Agreement and to restate in a single instrument all the
terms and provisions of the Original Agreement, as amended herein, and
WHEREAS, C/M Products, Inc., a California corporation and wholly owned
subsidiary of Licensor ("C/M"), and Famous Value Brands, a division of PM, are
entering into a manufacturing agreement of even date herewith ("Manufacturing
Agreement") pursuant to which
Famous Value Brands will manufacture and sell to C/M cigarette products under
the name "BEST BUY-Registered Trademark-", with the labeling and package design
set forth in EXHIBIT A to this Agreement, and
WHEREAS, Licensor is the proprietor in the United States of America of
registrations covering tobacco products for the trademarks "BEST BUY-Registered
Trademark-" and the related package design set forth in EXHIBIT A to this
Agreement (exclusive of the "All-American Value" Eagle Design, of which PM is
the proprietor), and
WHEREAS, Licensor has granted and is agreeable to extending to PM, on
the terms set out herein, the exclusive license in the United States of America
of the trademark "BEST BUY-Registered Trademark-" and the package design
described above as proprietary to Licensor, which trademark and design are
herein collectively called the "Trademark".
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, PM and Licensor agree as follows:
1. Licensor hereby grants to PM the exclusive license to use the
Trademark in connection with the manufacture, sale and distribution of
cigarettes in the
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United States of America, including its territories and possessions, during the
term of this Agreement. PM acknowledges the sole and exclusive right of
Licensor to license others to use the Trademarks in connection with products
other than cigarettes and services unrelated to the manufacture, distribution or
sale of cigarettes to which other products and unrelated services the Trademarks
are or may be applied by Licensor or its licensees.
[Section 2 has been omitted and filed separately
with the Commission pursuant to Rule 406.]
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3. The term of this Agreement shall be for an initial term (the
"Initial Term") ending on December 31, 1998. 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. This Agreement may also be terminated in its entirety by
either party if the Manufacturing Agreement shall be terminated or, upon not
less than thirty (30) days' written notice by either party, if the other is in
material breach of any provision hereof not cured within ten (10) days of
written notice of such breach.
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4. Licensor consents to any and all additions to, deletions from,
and changes in the Trademarks, or any of them, made at the request or with the
approval of C/M pursuant to the Manufacturing Agreement, all of which additions,
deletions and changes shall be effective as if they were incorporated in this
Agreement.
5. Licensor warrants that it is the legal and beneficial owner of
the Trademark, that it has full right and authority to enter into this Agreement
with PM, and that this Agreement will not violate any agreements or obligations
of Licensor or its affiliates with or to other parties. Licensor will retain
its rights in the Trademark. Licensor will indemnify and hold harmless PM and
its employees, divisions, agents, and affiliates against any liability,
including reasonable attorneys' fees, arising out of any breach of the above
warranties or the use of the Trademark. PM agrees that it will not claim any
right or interest in or contest the validity of the Trademark in whole or in
part, except that it shall have the rights granted by this Agreement. Licensor
acknowledges that PM may use the Trademark in combination with the "All-American
Value" name and Eagle Design depicted in EXHIBIT A to
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this Agreement, or variations thereof. Licensor agrees that PM may place the
legend "-Registered Trademark-P.M. Inc." adjacent to the "All-American Value"
name and Eagle Design. Licensor agrees that it will not claim any right or
interest in such Eagle Design or the "All-American Value" name. The terms of
this paragraph shall survive any termination or expiration of this Agreement.
6. Licensor and PM are and shall remain independent contractors.
This Agreement shall be governed by the laws of the state of New York and the
rights and obligations of the parties are not assignable (by operation of law or
otherwise) other than to an affiliate of the assigning party except with the
written consent of both parties. Subject to applicable law, this Agreement
shall terminate automatically in the event that either party becomes the subject
of any bankruptcy or insolvency proceeding or of any other proceeding to enforce
the rights of any creditor against such party.
7. 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
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one (1) business day after deposit with an overnight, private courier delivery
service, addressed as follows:
PM: Philip Morris Incorporated
Famous Value Brands Division
120 Park Avenue
New York, New York 10017
Attention: Director, National Accounts
Licensor: Core-Mark Interrelated Companies, Inc.
395 Oyster Point Boulevard
Suite 415
South San Francisco, California 94080
Attention: President
8. This agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements and understandings with respect thereto, and shall not be
altered, modified or otherwise changed except in writing signed by both parties.
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IN WITNESS WHEREOF the parties have duly executed this Agreement as of
the date first set out above.
FAMOUS VALUE BRANDS, a CORE-MARK INTERRELATED
division of PHILIP MORRIS COMPANIES, INC.
INCORPORATED, a Virginia
corporation
By: /s/Michael E. Szymanczyk By: /s/ Gary L. Walsh
------------------------ -----------------------
Gary L. Walsh
President
Its: Senior Vice President - Sales
Dated: 12/20/93 Dated: 12/20/93
The undersigned agrees and consents
to each of the terms and conditions
of this Agreement:
CORE-MARK INTERNATIONAL INC.
By: /s/Gary L. Walsh
-----------------------
Gary L. Walsh
President
Dated: 12/20/93
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EXHIBIT A
NOTE: Product description, warning notice, UPC symbol and other elements to
be modified as appropriate.
[Picture of "Best Buy" packaging.]