AMENDMENT NO. 1 TO
GRANT OF EXCLUSIVE MANUFACTURING RIGHTS
THIS AMENDMENT NO. 1 is made as of the 1st day of October, 1998 (this
"Amendment"), between FAMOUS VALUE BRANDS, a division of XXXXXX XXXXXX
INCORPORATED, a Virginia corporation with offices at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Manufacturer"), and AMCON DISTRIBUTING COMPANY, a
Delaware corporation with offices at 00000 X Xxxxxx, Xxxxx, Xxxxxxxx 00000
(together with its successors, permitted assigns and affiliates, "Grantor").
PRELIMINARY STATEMENTS
A. Manufacturer and Grantor entered into that certain Grant of Exclusive
Manufacturing Rights dated as of October 1, 1993 (the "Grant Agreement"),
providing for, among other things, Grantor to grant and convey to Manufacturer
exclusive rights to manufacture for Grantor any and all proprietary private
label brand cigarettes for sale and distribution in the United States,
including cigarettes utilizing the trademark(s) and package designs identified
on EXHIBIT A attached thereto.
B. Manufacturer and Grantor desire to amend certain provisions of the
Grant Agreement as more particularly described herein, and to continue the
Grant Agreement, as amended hereby, the Private Label Manufacturing Agreement,
dated as of October 1, 1993, as amended by Amendment No. 1 dated as of the
date hereof, between Manufacturer and Grantor (the "Private Label
Manufacturing Agreement"), and the Amended and Restated Trademark License
Agreement, dated as of October 1, 1993, as amended by Amendment No. 1 dated as
of the date hereof, between Manufacturer and Grantor (the "Amended and
Restated Trademark License Agreement"), in full force and effect on the terms
contained therein and herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements contained herein, the parties hereto agree as
follows:
ARTICLE I
AMENDMENTS
SECTION 1.1 AMENDMENT TO SECTION 1.1. The Grant Agreement is hereby
amended by deleting Section 1.1 thereof in its entirety and inserting in lieu
thereof the following new Section 1.1:
"SECTION 1.1 GRANT OF EXCLUSIVE MANUFACTURING RIGHTS.
Subject to the terms and provisions of Section 2.1(b), Grantor does
hereby grant, sell, convey, 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 all and any private label brand cigarettes
bearing the trademarks or any other trademarks or trade names owned,
used or licensed now or hereafter by the Grantor ("Private Label
Products") for a period commencing on the date hereof and
continuing until the expiration of the Initial Term. (as defined in
Section 4.1) or any later date to which this Agreement is extended
pursuant to Section 4.1 hereof."
SECTION 1.2 AMENDMENT TO SECTION 1.2. The Grant Agreement is hereby
amended by deleting the words "Section 4.2(b) or" from the fourth sentence
appearing in Section 1.2.
SECTION 1.3 AMENDMENT TO SECTION 1.3. The Grant Agreement is hereby
amended by deleting Section 1.3 in its entirety and inserting in lieu thereof
the following new Section 1.3:
"SECTION 1.3 EXCLUSIVE RELATIONSHIPS.
Grantor has advised Manufacturer, and Manufacturer acknowledges,
that Grantor has certain pre-existing agreements pursuant to which
certain Private Label Products listed on Schedule A hereto (as the
same may be amended or supplemented from time to time with the
consent of the parties) are manufactured for and sold exclusively
by Grantor within certain prescribed geographical areas to retail
and wholesale customers (as and to the extent the same are in
effect on the date hereof, the "Pre-existing Agreements").
Manufacturer hereby grants the Grantor, effective as of the date
Grantor acquired such rights under the Pre-existing Agreements, a
license and interest in the exclusive manufacturing rights granted
to Manufacturer hereby, for a period equal to the applicable term
of each Pre-existing Agreement. Manufacturer further agrees that
the exercise of the Grantor's rights and the performance of the
Grantor's obligations under the Pre-existing Agreements shall not
constitute a breach of any provision of this Agreement or entitle
Manufacturer to reduce Manufacturer's Annual Payment pursuant to
Section 1.2. Except as expressly contemplated by this Section 1.3,
Grantor will not 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 brand of cigarettes manufactured by any manufacturer other
than Manufacturer, and Grantor hereby represents to Manufacturer
that Grantor is not on the date hereof a party to any such
agreements, arrangements or understandings. Without limiting the
generality of the foregoing, Grantor will only distribute Private
Label Products manufactured by Manufacturer, other than 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 Grantor
becomes the supplier to two or more competing retail customers."
SECTION 1.4 AMENDMENT TO SECTION 4.1. The Grant Agreement is hereby
amended by deleting Section 4.1 in its entirety and inserting in lieu thereof
the following new Section 4.1:
"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") of eight (8) years following
the date of this Agreement, beginning on October 1, 1993 and
ending on September 30, 2001, 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 provides the other
with written notice of its intent not to renew this Agreement."
SECTION 1.5 AMENDMENT TO SECTION 4.2. The Grant Agreement is hereby
amended by deleting clause (3) of paragraph (a) of Section 4.2 in its entirety
and by deleting paragraph (b) of section 4.2 in its entirety.
SECTION 1.6 AMENDMENT TO SECTION 4.3. Section 4.3 of the Grant Agreement
is hereby amended as follows:
(a) By replacing the reference in clause (1) of Section 4.3(a) to
"thirty (30)" with a reference to "sixty (60)";
(b) By deleting the words "the expiration of the Non-Exclusive
Period" in the fourth sentence of Section 4.3(a) and inserting
in lieu thereof "delivery to Manufacturer of the Offer;" and
(c) By deleting the words "which is thirty (30) days following the
Scheduled Expiration Date" appearing at the end of the
penultimate sentence in Section 4.3(a).
ARTICLE II
GENERAL PROVISIONS
SECTION 2.1 GOVERNING LAW. This Amendment 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 2.2 ENTIRE AGREEMENT. The Grant Agreement, as amended by this
Amendment, constitutes the entire agreement between the parties with respect
to the subject matter hereof and supercedes all prior and contemporaneous
agreements, contracts, negotiations and understandings between them (other
than the Private Label Manufacturing Agreement and the Amended and Restated
Trademark License Agreement). This Agreement does not constitute a waiver or
the relinquishment of any right, claim or interest of the parties other than
those based on facts and circumstances known to the parties.
SECTION 2.3 NO FURTHER MODIFICATION. The Grant Agreement, the Private
Label Manufacturing Agreement and the Amended and Restated Trademark License
Agreement shall remain in full force and effect on the terms and conditions
contained therein and herein. The Grant Agreement shall not be deemed to be
amended, modified or supplemented in any respect except as expressly set forth
in this Amendment. For purposes of this Amendment, each of the representations
and warranties of Manufacturer in Section 3.1 of the Grant Agreement shall be
deemed to be made by Manufacturer on and as of the date hereof, and each of
the representations and warranties of Grantor in Section 3.2 of the Grant
Agreement shall be deemed to be made by Grantor on and as of the date hereof.
SECTION 2.4 SEVERABILITY. If any provision of this Amendment is
determined to be invalid or unenforceable, the provision shall be deemed to be
severable from the remainder of this Amendment and shall not cause the
invalidity or unenforceability of the remainder of this Amendment.
SECTION 2.5 COUNTERPARTS. This Amendment 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.
IN WITNESS WHEREOF, this Amendment No. 1 to the Grant Agreement has been
duly executed as of the date first above written.
FAMOUS VALUE BRANDS,
a division of
XXXXXX XXXXXX INCORPORATED,
a Virginia corporation
By: Xxxxx Xxxxx
-----------
Name: Xxxxx Xxxxx
Title: VP Marketing, Discount Brands
Dated: 6/28/98
AMCON DISTRIBUTING COMPANY
By: Xxxxxxxx X. Xxxxx
-----------------
Name: Xxxxxxxx X. Xxxxx
Title: President
Dated: 6/25/98
SCHEDULE A
"EAGLE"
"VEGAS"
"BUZ"
"GUNSMOKE"
Tabacalera's "FIRST CLASS" and "ULTRA BUY"
AMENDMENT NO. 1 TO
PRIVATE LABEL MANUFACTURING AGREEMENT
THIS AMENDMENT NO. 1 is made as of the 1st day of October, 1998 (this
"Amendment"), between FAMOUS VALUE BRANDS, a division of XXXXXX XXXXXX
INCORPORATED, a Virginia corporation with offices at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Manufacturer"), and AMCON DISTRIBUTING COMPANY, a
Delaware corporation with offices at 00000 X Xxxxxx, Xxxxx, Xxxxxxxx 00000
(together with its successors, permitted assigns and affiliates, "Customer").
PRELIMINARY STATEMENTS
A. Manufacturer and Customer entered into that certain Private Label
Manufacturing Agreement dated as of October 1, 1993 (the "Manufacturing
Agreement"), providing for, among other things, Manufacturer to manufacture
and sell to Customer certain private label brand cigarettes utilizing the
Trademarks (as defined in the Manufacturing Agreement).
B. Manufacturer and Customer desire to amend certain provisions of the
Manufacturing Agreement as more particularly described herein, and, except as
amended hereby, the Manufacturing Agreement shall continue in full force and
effect on the terms contained therein and herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements contained herein, the parties hereto agree as
follows:
ARTICLE I
AMENDMENTS
SECTION 1.1 AMENDMENT TO SECTION 1.4. The Manufacturing Agreement is
hereby amended by deleting Section 1.4 in its entirety and inserting in lieu
thereof the following new Section 1.4:
"SECTION 1.4 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. Without limiting the generality of the preceding
sentence, this Agreement shall not require that Manufacturer produce
any packing of the Products which is uneconomical for Manufacturer to
produce due to the unreasonably low level of sales of such packing
relative to other Products. Furthermore, 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 or any
Associate Distributor, 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 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
(including any changes in applicable laws and regulations); or any
act of God beyond the control of the 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 Customer's requirements for
Products under this Agreement."
SECTION 1.2 AMENDMENT TO SECTION 3.1. The Manufacturing Agreement is
hereby amended by deleting Section 3.1 thereof in its entirety and inserting
in lieu thereof the following new Section 3.1:
"SECTION 3.1 TERM. This Agreement shall continue for an initial
term (the "Initial Term") of eight (8) years following the date of
this Agreement, beginning on October 1, 1993 and ending on September
30, 2001. 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 "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.
Notwithstanding the foregoing, this Agreement shall be extended to
any Extended Expiration Date (as defined in the Grant of Exclusive
Manufacturing Rights, dated the date hereof (the "Grant Agreement"),
between Manufacturer and Customer)."
SECTION 1.3 AMENDMENT TO SECTION 3.2. The Manufacturing Agreement is
hereby amended by deleting Section 3.2 in its entirety and inserting in lieu
thereof the following new Section 3.2:
"SECTION 3.2 OBLIGATION OF CUSTOMER UPON TERMINATION. Upon
termination of this Agreement, Customer and Manufacturer shall
negotiate in good faith the costs and expenses, if any, to be borne
by Customer that are or have been incurred by the Manufacturer with
regard to finished and unfinished Product and packaging inventory;
provided that, Manufacturer shall be entitled to sell and dispose of
all such finished and unfinished Product and packaging inventory that
Customer shall not have agreed to purchase from Manufacturer."
ARTICLE II
GENERAL PROVISIONS
SECTION 2.1 NO FURTHER MODIFICATION. The Manufacturing Agreement shall
remain in full force and effect and shall not be deemed to be amended,
modified or supplemented in any respect except as expressly set forth in this
Amendment. For purposes of this Amendment, each of the representations and
warranties of Manufacturer in Section 2.1 of the Manufacturing Agreement shall
be deemed to be made by Manufacturer on and as of the date hereof, and each of
the representations and warranties of Customer in Section 2.2 of the
Manufacturing Agreement shall be deemed to be made by Customer on and as of
the date hereof.
SECTION 2.2 SEVERABILITY. If any provision of this Amendment is
determined to be invalid or unenforceable, the provision shall be deemed to be
severable from the remainder of this Amendment and shall not cause the
invalidity or unenforceability of the remainder of this Amendment.
SECTION 2.3 GOVERNING LAW. This Amendment 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 2.4 ENTIRE AGREEMENT. The Manufacturing Agreement, as amended by
this Amendment, constitutes the entire agreement between the parties with
respect to the Products (as defined in the Manufacturing Agreement) and
supersedes all prior and contemporaneous agreements, contracts, negotiations
and understandings between them (other than the Grant of Exclusive
Manufacturing Rights, dated as of October 1, 1993, between Manufacturer and
Customer, as Amended by Amendment No. 1 dated the date hereof, and the Amended
and Restated Trademark License Agreement, dated as of October 1, 1993, between
Manufacturer and Customer, as amended by Amendment No. 1 dated the date
hereof).
SECTION 2.5 COUNTERPARTS. This Amendment 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.
IN WITNESS WHEREOF, this Amendment No. 1 has been duly executed as of the
date first above written.
FAMOUS VALUE BRANDS,
a division of
XXXXXX XXXXXX INCORPORATED,
a Virginia corporation
By: Xxxxx Xxxxx
-----------
Name: Xxxxx Xxxxx
Title: VP Marketing, Discount Brands
Dated: 6/28/98
AMCON DISTRIBUTING COMPANY
By: Xxxxxxxx X. Xxxxx
-----------------
Name: Xxxxxxxx X. Xxxxx
Title: President
Dated: 6/25/98
AMENDMENT NO.1 TO
AMENDED AND RESTATED
TRADEMARK LICENSE AGREEMENT
THIS AMENDMENT NO. 1 is made as of the 1st day of October, 1998 (this
"Amendment"), between FAMOUS VALUE BRANDS, a division of XXXXXX XXXXXX
INCORPORATED, a Virginia corporation with offices at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Manufacturer"), and AMCON DISTRIBUTING COMPANY, a
Delaware corporation with offices at 00000 X Xxxxxx, Xxxxx, Xxxxxxxx 00000
(together with its successors, permitted assigns and affiliates, "AMCON").
WHEREAS, this Amendment is an amendment to that certain Amended and
Restated Trademark and License Agreement, dated as of October 1, 1993 (the
"Amended and Restated Trademark and License Agreement"), between Manufacturer
and AMCON.
NOW, THEREFORE, Manufacturer and AMCON agree as follows:
ARTICLE I
AMENDMENTS
SECTION 1.1 AMENDMENT TO SECTION 2. The Amended and Restated Trademark
and License Agreement is hereby amended by deleting Section 2 thereof in its
entirety and inserting in lieu thereof the following new Section 2:
THIS SECTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2
OF THE SECURITIES EXCHANGE ACT OF 1934.
SECTION 1.2 AMENDMENT TO SECTION 4. The Amended and Restated Trademark
License Agreement is hereby amended by deleting Section 4 thereof in its
entirety and inserting in lieu thereof the following Section 4:
"4. The term of this Agreement shall be for an initial term
(the "Initial Term") of eight (8) years following the date of this
Agreement, beginning on and as of October 1, 1993 and ending on and
as of September 30, 2001. Not withstanding the foregoing, this
Agreement shall be extended to any Extended Expiration Date (as
defined in the Grant of Exclusive Manufacturing Rights, dated the
date hereof (the "Grant Agreement"), between Manufacturer and AMCON).
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 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. Upon any expiration or termination of this
Agreement, Manufacturer shall have the right to exhaust, in the
ordinary course of business, its existing stock of cigarettes bearing
the Trademark, unless such stock is otherwise disposed of in
accordance with the Manufacturing Agreement."
ARTICLE II
GENERAL PROVISIONS
SECTION 2.1 NO FURTHER MODIFICATION. The Amended and Restated Trademark
License Agreement shall remain in full force and effect on the terms and
conditions contained therein and herein, and shall not be deemed to be
amended, modified or supplemented in any respect except as expressly set forth
in this Amendment.
SECTION 2.2 SEVERABILITY. If any provision of this Amendment is
determined to be invalid or unenforceable, the provision shall be deemed to be
severable from the remainder of this Amendment and shall not cause the
invalidity or unenforceability of the remainder of this Amendment.
SECTION 2.3 GOVERNING LAW. This Amendment 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 2.4 ENTIRE AGREEMENT. This Amendment constitutes the entire
agreement between the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF the parties have duly executed this Amendment as of
the date first set out above.
FAMOUS VALUE BRANDS,
a division of
XXXXXX XXXXXX INCORPORATED,
a Virginia corporation
By: Xxxxx Xxxxx
-----------
Name: Xxxxx Xxxxx
Title: VP Marketing, Discount Brands
Dated: 6-28-98
AMCON DISTRIBUTING COMPANY
By: Xxxxxxxx X. Xxxxx
------------------
Name: Xxxxxxxx X. Xxxxx
Title: President
Dated: 6-25-98
SCHEDULE A
THIS SECTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2
OF THE SECURITIES EXCHANGE ACT OF 1934.
