AGREEMENT CONCERNING
TRANSFER OF CERTAIN ASSETS
BETWEEN AND AMONG
PRICE/COSTCO, INC., PRICE ENTERPRISES, INC.,
THE PRICE COMPANY, PRICE COSTCO INTERNATIONAL, INC.,
COSTCO WHOLESALE CORPORATION, PRICE GLOBAL TRADING, L.L.C.,
PGT, INC., PRICE QUEST, L.L.C., AND PQI, INC.
DATED AS OF
NOVEMBER ____, 1996
TABLE OF CONTENTS
Page
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1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
2. ACTIONS CONCERNING PRICE GLOBAL. . . . . . . . . . . . . . . . . . . . . .6
2.1 Price Costco Global Marks . . . . . . . . . . . . . . . . . . . . . .6
2.2 Future Assignments For Costa Rica & Panama. . . . . . . . . . . . . .6
2.3 Marianas, Guam & Panama License . . . . . . . . . . . . . . . . . . 11
2.4 Interest In Price Global. . . . . . . . . . . . . . . . . . . . . . 13
2.5 Price Global Operating Agreement. . . . . . . . . . . . . . . . . . 13
3. ACTIONS CONCERNING PRICE QUEST . . . . . . . . . . . . . . . . . . . . . 14
3.1 Price Quest Marks . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.2 Price Quest License . . . . . . . . . . . . . . . . . . . . . . . . 14
3.3 Interest In Price Quest . . . . . . . . . . . . . . . . . . . . . . 14
3.4 Price Quest Operating Agreement . . . . . . . . . . . . . . . . . . 15
3.5 Quest Operations At PriceCostco . . . . . . . . . . . . . . . . . . 15
3.6 Auto & Travel Operations at PriceCostco . . . . . . . . . . . . . . 15
4. NON-COMPETITION COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . 20
4.1 Termination of Non-Compete Agreements . . . . . . . . . . . . . . . 20
4.2 Marianas, Guam & Panama Non-compete . . . . . . . . . . . . . . . . 20
4.3 Auto/Travel Limits on PriceCostco . . . . . . . . . . . . . . . . . 20
4.4 Auto/Travel Limits on PEI and PriceCostco . . . . . . . . . . . . . 21
4.5 Injunctive Relief . . . . . . . . . . . . . . . . . . . . . . . . . 21
5. COSTS & OTHER MATTERS CONCERNING THE TRANSFERS . . . . . . . . . . . . . 21
5.1 Fees & Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.2 Representations . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.3 Trademark Documents . . . . . . . . . . . . . . . . . . . . . . . . 23
5.4 Interim Safeguards. . . . . . . . . . . . . . . . . . . . . . . . . 23
6. CERTAIN "PRICE" MARKS. . . . . . . . . . . . . . . . . . . . . . . . . . 25
6.1 "PriceSmart" Agreement. . . . . . . . . . . . . . . . . . . . . . . 25
6.2 Promotion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.3 Registration Preclusion . . . . . . . . . . . . . . . . . . . . . . 26
6.4 Claims to "Price" Marks . . . . . . . . . . . . . . . . . . . . . . 26
7. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
7.1 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . 27
7.2 Affiliate Compliance. . . . . . . . . . . . . . . . . . . . . . . . 27
7.3 Guaranties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
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7.4 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.7 Amendment; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.8 Binding Effect; No Assignments. . . . . . . . . . . . . . . . . . . 30
7.9 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.10 Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.11 Complete Agreement. . . . . . . . . . . . . . . . . . . . . . . . . 30
7.12 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.13 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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AGREEMENT CONCERNING TRANSFER OF CERTAIN ASSETS
This AGREEMENT, dated as of November ___, 1996, is by and between
Price/Costco, Inc. ("PRICECOSTCO"); Price Enterprises, Inc. ("PEI"); The
Price Company, a California corporation and wholly-owned subsidiary of
PriceCostco ("TPC"); Price Costco International, Inc., a Nevada corporation
and wholly-owned subsidiary of PriceCostco ("PCII"); Costco Wholesale
Corporation, a Washington corporation and a wholly-owned subsidiary of Price
Costco ("CWC"); Price Global Trading, L.L.C., a Delaware limited liability
company ("PRICE GLOBAL"); PGT, Inc., a Delaware corporation and wholly-owned
subsidiary of PEI ("PGT"); Price Quest, L.L.C., a Delaware limited liability
company ("PRICE QUEST"); and PQI, Inc., a Delaware corporation and
wholly-owned subsidiary of PEI ("PQI").
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WHEREAS:
A. PriceCostco and PEI are parties to an Amended and Restated
Agreement of Transfer and Plan of Exchange dated as of November 14, 1994 (the
"1994 TRANSFER AGREEMENT"). In connection with the 1994 Transfer Agreement,
PriceCostco, TPC, PEI, and the predecessors of Price Global and Price Quest
entered into various agreements (including operating agreements, stockholders
agreements and trademark assignments and licenses), which set forth certain
rights and obligations of the parties with respect to Price Quest, Inc.,
Price Global Trading, Inc. and their assets and operations, and which
transferred several foreign trademarks and service marks from PriceCostco and
its Affiliates to PEI and its Affiliates.
B. In November 1995, PriceCostco (through TPC) and PEI (through
PGT and PQI) formed two limited liability companies, Price Quest and Price
Global, which succeeded to the rights, liabilities, assets, businesses and
operations of Price Quest, Inc. and Price Global Trading, Inc., respectively.
C. This Agreement is being executed simultaneously with a
Stipulation of Settlement of this date among PriceCostco, PEI and certain
other parties to effect a settlement of litigation entitled IN RE PRICECOSTCO
SHAREHOLDER LITIGATION, Case No. C-94-1874C, pending in the United States
District Court for the Western District of Washington (the "STIPULATION OF
SETTLEMENT").
D. On the terms set forth in this Agreement, PriceCostco and PEI
now desire to modify their relationship, effective as of the Effective Date
defined in the Stipulation of Settlement ("Effective Date"), by transferring
and assigning certain
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trademarks and assets (including, in particular, a transfer of foreign
trademarks and service marks back to PriceCostco and its Affiliates), by
terminating certain of the non-compete agreements between the parties, and
modifying or terminating certain other agreements between or among the
parties concerning the operations of Price Quest and Price Global.
NOW, THEREFORE, for good and adequate consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
1.1 "AUTO REFERRAL PROGRAM" and "TRAVEL PROGRAM" mean,
respectively, (i) the automobile advertising/referral program and (ii) the
travel program, both as operated by Price Quest under the "PriceCostco" name
as of the date of this Agreement.
1.2 "EFFECTIVE DATE" shall have the meaning set forth in the
Stipulation of Settlement.
1.3 "PRICECOSTCO WAREHOUSE" means a "Costco" or "Price Club"
warehouse location at which PriceCostco or its Downstream Affiliates operate
a Club Business.
1.4 "PRICE COSTCO GLOBAL MARKS" means all rights of Price Global,
PGT and PEI and its Affiliates in and to the names, trade names, commercial
names, trademarks and service marks "PRICE CLUB," "PRICE COSTCO" and "PRICE
CLUB
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COSTCO" in the Specified Geographical Areas, including but not limited to all
stylized presentations of PRICE CLUB, PRICE CLUB COSTCO and PRICE COSTCO, all
designs, logos and marks containing those names, and all pending applications
and registrations for the aforementioned names and marks that have been made
by Price Global, PQI or PEI or its Affiliates.
1.5 "PRICE GLOBAL LLC AGREEMENT" means the Limited Liability
Company Agreement of Price Global Trading, L.L.C. dated as of 27 November
1995, between TPC and PGT.
1.6 "PRICE GLOBAL LICENSE AGREEMENT" means The License Agreement
made as of August 28, 1994 by and among PriceCostco, TPC, Price Global
Trading, Inc. and PEI, relating among other things to the "PRICE CLUB" and
"PRICE COSTCO" trademarks in the Northern Mariana Islands (including Guam and
Saipan) and the U.S. Virgin Islands.
1.7 "PRICE GLOBAL OPERATING AGREEMENT" means the Operating
Agreement by and among Price Global Trading, Inc., PEI, PriceCostco and TPC
dated as of August 28, 1994.
1.8 "PRICE GLOBAL'S JOETEN LICENSE" means the License, Software,
Merchandise & Technical Support Agreement entered into as of December 12,
1994 by and among Price Global Trading, Inc. and Joeten Enterprises, Inc.
1.9 "PRICE GLOBAL'S PANAMA LICENSE" means the License, Software,
Merchandise & Technical Support Agreement entered into as of September 21,
1995 by and between Price Global Trading, Inc. and PriceCostco Panama, S.A.
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1.10 "PRICE QUEST MARKS" means all rights of Price Quest, PQI and
PEI and its Affiliates in and to the names, trademarks and service marks
"PRICE CLUB QUEST," "PRICE QUEST" and "QUEST" worldwide, including but not
limited to all stylized presentations of "PRICE CLUB QUEST," "PRICE QUEST"
and "QUEST" and all pending applications and registrations for the
aforementioned names and marks that have been made by Price Quest, PQI or PEI
or its Affiliates.
1.11 "PRICE QUEST LLC AGREEMENT" means the Limited Liability Company
Agreement of Price Quest, L.L.C. dated as of 27 November 1995, between TPC
and PQI.
1.12 "PRICE QUEST LICENSE AGREEMENT" means The License Agreement
made as of August 28, 1994 by and among PriceCostco, TPC, Price Quest, Inc.
and PEI.
1.13 "PRICE QUEST OPERATING AGREEMENT" means the Operating Agreement
by and among Price Quest, Inc., PEI, PriceCostco and TPC dated as of August
28, 1994.
1.14 "STIPULATION OF SETTLEMENT" shall have the meaning set forth in
Recital C above.
1.15 "1994 TRANSFER AGREEMENT" shall have the meaning set forth in
Recital A above.
1.16 The definitions in Article I of the 1994 Transfer Agreement, in
Section 1 of the Price Global Operating Agreement and in Section 1 of the
Price Quest Operating Agreement among certain of the parties to the extent
not inconsistent with this
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Agreement, are hereby incorporated by reference and made a part of this
Agreement; EXCEPT that
(a) "SPECIFIED GEOGRAPHICAL AREAS" shall no longer include
Mexico and after the Effective Date shall mean only the Commonwealth of the
Northern Mariana Islands, Guam, Costa Rica and Panama, and
(b) "SPECIFIED COMPANIES" shall mean after the Effective Date
only Sam's Warehouse Club, BJ's Wholesale Club, and Wal-Mart Stores, Inc. and
each of its Affiliates.
2. ACTIONS CONCERNING PRICE GLOBAL
2.1 PRICE COSTCO GLOBAL MARKS. As of the Effective Date, Price
Global, PGT and PEI hereby convey, transfer and assign to PCII, free and
clear of any liens or encumbrances (but without warranty of registrability,
enforceability or lack of conflict with any third party's trademarks or
service marks), all of their rights, title and interest to and in the Price
Costco Global Marks, and in all applications, registrations and claims
relating to those marks; PROVIDED THAT the "PRICE COSTCO" xxxx in Costa Rica
and Panama will be assigned only as set forth in paragraph 2.2 below.
Contemporaneously with this Agreement, PEI, PGT and Price Global shall
execute the Trademark Assignments at Exhibits 2.1A through 2.1H hereto, but
PCII shall not attempt to file the Assignments with any governmental
authority before the Effective Date.
2.2 FUTURE ASSIGNMENTS FOR COSTA RICA & PANAMA. As shown in Exhibit
5.2A, PGT has five pending applications in both Panama and Costa Rica for the
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"PRICE COSTCO" xxxx in classes 16, 37, 39, 40 and 42. The parties understand
that (1) under present Panamanian law registrations on the five applications
in Panama can issue only if registrations for those same marks first issue in
Costa Rica in the name of Price Global Trading, Inc., (2) the five
applications for those marks have been rejected in Costa Rica and those
rejections have been appealed, and (3) it is in the interest of all of the
parties to determine if the registrations will be issued on these pending
applications before they are assigned to PriceCostco or its Affiliates
hereunder. Based on these understandings, the parties agree as follows:
(a) As of the date of this Agreement and until both the "PRICE
COSTCO" xxxx for Costa Rica and Panama is assigned to PCII and the rights of
Price Global's joint venturer in Panama to use that xxxx are terminated, PEI,
PGT and Price Global will have the rights and duties (i) diligently to pursue
and prosecute the five pending applications and appeal in Costa Rica, and the
five pending applications in Panama, listed in Exhibit 5.2A for Costa Rica
and Panama covering the "PRICE COSTCO" xxxx, (ii) to promptly give
PriceCostco notice of all government actions in Costa Rica and in Panama
relating to such applications and appeal; (iii) to oppose Almacenes Cosco's
use of and applications for tradenames, commercial names, service marks and
trademarks in Panama which may in Price Global's view infringe upon the
"PRICE COSTCO" xxxx or otherwise be confusingly similar thereto; (iv) to take
all reasonable steps against Almacenes Cosco and any other Person using, or
filing any application to register as a trademark, service xxxx, tradename or
commercial name in Panama, the "PRICE COSTCO" xxxx or any xxxx or name which
in Price Global's view
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is confusingly similar thereto; (v) to promptly inform PriceCostco of any
use, application or registration in Panama of any xxxx or name of which it is
aware and which infringes or is substantially similar to the "PRICE COSTCO"
xxxx; and (vi) to promptly inform PriceCostco of the steps it takes to carry
out its rights and duties under this paragraph 2.2, including providing
PriceCostco with copies of all related correspondence and other documents;
(b) In the event PriceCostco believes that PEI, PGT or Price
Global has not taken, but should be taking some action under paragraph
2.2(a), PriceCostco may so inform PEI; if then PEI, PGT or Price Global
declines or fails to commence such action within fourteen (14) days
thereafter, then PriceCostco may take such action. PEI, PGT and Price Global
will provide any requested consents, and PriceCostco shall promptly inform
Price Global of the steps it so takes, including providing PEI with copies of
all related correspondence and other documents. PEI, PGT and Price Global
(i) shall have liability under paragraph 2.2(a) only for gross negligence and
willful acts or willful omissions where such negligence, acts or omissions
materially adversely affect the "PRICE COSTCO" xxxx, or any right,
application or registration in or for such xxxx, and (ii) may assert as a
defense that any loss or damage could have been mitigated or avoided if
PriceCostco had taken action under this paragraph 2.2(b);
(c) As a "safety net" in case registrations on PGT's pending
applications are denied, PriceCostco or PCII will (i) promptly file and
diligently pursue and prosecute in Panama applications for the "PRICE COSTCO"
xxxx in classes 16, 37, 39, 40 and 42, and PEI, PGT and Price Global will
provide any requested consents;
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(ii) promptly give PEI notice of all government actions in Panama relating to
such applications; (iii) promptly inform PEI of the steps it takes to carry
out its rights and duties of any party under this paragraph 2.2(c), including
providing PEI with copies of all related correspondence and other documents;
(d) Each party agrees to promptly sign, and to cause its
Downstream Affiliates to promptly sign, any documentation (including
consents) reasonably necessary to carry out the rights and duties of any
party under paragraphs 2.2(a), (b) and (c), to provide all evidence
reasonably necessary, and to otherwise cooperate, and to cause its Downstream
Affiliates to cooperate, with the other party;
(e) PriceCostco, PCII and CWC may pursue applications in
Panama for "COSTCO", "PRICE CLUB" and "PRICE CLUB COSTCO" trademarks, service
marks, tradenames and commercial names, respond to oppositions thereto, and
in consultation with Price Global oppose Almacenes Cosco's and other Persons'
uses of and applications for tradenames, commercial names, service marks and
trademarks in Panama which may in PriceCostco's view infringe upon any
"COSTCO", "PRICE CLUB" and "PRICE CLUB COSTCO" names or marks; PROVIDED THAT
PriceCostco, PCII and CWC will provide any requested consents regarding PGT's
pending applications for the "PRICE COSTCO" xxxx in Panama; and PROVIDED also
that nothing in this paragraph 2.2(e) shall be deemed to affect any party's
position concerning any claim of right of PriceCostco and its Affiliates to
operate a business in Panama while Price Global has the right to use the
"PRICE COSTCO" xxxx in Panama;
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(f) All action undertaken by Price Global and its Affiliates
pursuant to paragraphs 2.2(a) through (e) shall be at Price Global's expense,
and all action undertaken by PriceCostco and its Affiliates pursuant to
paragraphs 2.2(a) through (e) shall be at PriceCostco's expense; PROVIDED,
however, that if there is a termination of all rights to use the "PRICE
COSTCO" xxxx by Price Global's joint venturer in Panama before any of the
dates listed below, the reasonable expenses that are described above and have
been incurred solely with respect to the "PRICE COSTCO" marks will be
totalled and PriceCostco and Price Global shall pay (and reimburse each other
for) those expenses in the following proportions:
If Before PriceCostco Pays Price Global Pays
--------- ---------------- -----------------
10/31/97 100% 0%
10/31/98 66.7% 33.3%
10/31/99 33.3% 66.7%
PROVIDED ALSO THAT a party whose reasonable expenses are to be paid or
reimbursed shall first provide to the reimbursing party detailed invoices
from and proofs of payment to the payee of each such expense;
(g) As of the Effective Date, PEI, PGT, Price Global and their
Affiliates will not use the "PRICE COSTCO" xxxx in Costa Rica (except to
pursue the five pending applications there) or allow any other Person to use
them;
(h) PEI, PGT and Price Global will promptly assign to PCII the
"PRICE COSTCO" xxxx for Costa Rica and for Panama, and promptly execute
assignments in the form requested by PCII if, for all of the five Classes of
marks for which applications are pending (whether in Costa Rica or in
Panama), any of the following
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has occurred after the Effective Date: (1) a rejection that has become final
after appeal of a pending application in Costa Rica or in Panama, (2)
issuance of a registration in Panama, (3) a termination of rights to use the
"PRICE COSTCO" xxxx by Price Global's joint venturer in Panama, or (4) a
determination by an arbitrator that PEI or its Affiliates have materially
breached any of its duties under paragraphs 2.2(a) through (g) subject to the
standard set out in paragraph 2.2(b); PROVIDED THAT PCII shall not attempt to
file the assignments in Panama until registrations have issued in Panama. As
an example of the conditions described in items (1) and (2) of this
paragraph, if registrations are issued in Panama for the marks in Classes 16
and 37 and if applications are denied in Costa Rica for marks in Classes 39,
40 and 42, the conditions for assignment to PCII under this paragraph 2.2(h)
will have been satisfied; and
(i) Price Global shall use diligent and reasonable efforts to
negotiate with its licensee in the Northern Mariana Islands and Guam and with
its joint venturer in Panama termination dates of their rights to use the
Price Costco Global Marks by October 3, 1998; and, if that does not occur, at
the earliest possible date before December 12, 2009 for the Northern Mariana
Islands and Guam and December 21, 2015 for Panama.
(j) PEI and its Downstream Affiliates shall use diligent and
reasonable efforts to obtain from Price Global's joint venture partner in
Panama, and from that partner's Affiliates, all applications, registrations,
marks and commercial names containing the words "Price Costco" and "Price
Club." Upon acquiring the same and at the time the "PRICE COSTCO" xxxx for
Panama is to be assigned under paragraph 2.2(h)
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above, PEI and its Downstream Affiliates shall promptly assign to PCII such
applications, registrations, marks and commercial names and promptly execute
assignments in the form requested by PCII. Until and unless such marks and
names have been assigned to Price Global or PGT, PriceCostco and its
Downstream Affiliates may oppose or challenge such applications,
registrations, marks or commercial names, but will discontinue any opposition
or challenge upon such assignment to Price Global or PGT.
2.3 MARIANAS, GUAM & PANAMA LICENSE. As of the Effective Date, the
Price Global License Agreement is hereby amended as follows:
(a) The definition of "Territory" in such license agreement is
modified to mean only the Commonwealth of the Northern Mariana Islands and
Guam and no other territory or country, PROVIDED THAT if the "PRICE COSTCO"
xxxx for Panama is assigned to PCII, or if registration is granted upon the
"safety net" applications described in paragraph 2.2(c) above, before the
earliest of the dates determined under paragraph 2.3(c) below, then Panama
shall also be included in the definition of "Territory" and the definition of
"Marks" shall include the "PRICE COSTCO" xxxx in Panama;
(b) The Commonwealth of the Northern Mariana Islands and Guam
shall be deleted from the definition of "Territory" in such license agreement
on the earlier of (i) December 12, 2009 (or any earlier date negotiated under
paragraph 2.2(i) above), or (ii) a termination of the rights of Price
Global's licensee in the Northern Mariana Islands and Guam to use the Price
Costco Global Marks under Price Global's Joeten License;
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(c) Panama shall be deleted from the definition of "Territory"
in such license agreement on the earlier of (i) December 21, 2015 (or any
earlier date negotiated under paragraph 2.2(i) above), or (ii) a termination
of the rights of Price Global's joint venturer in Panama to use the "PRICE
COSTCO" xxxx under Price Global's Panama License;
(d) With respect to Panama, the Marks licensed shall include
only the "PRICE COSTCO" xxxx; and paragraphs 2.2(a), (b), (d), (e), (f) and
(i) above are incorporated by reference and made a part of the Price Global
License Agreement if and so long as Panama is a "Territory" under such
license agreement;
(e) The Price Global License Agreement shall terminate without
any right to renew when all of the Commonwealth of the Northern Mariana
Islands, Guam and Panama have been deleted from, or are not included within,
the definition of "Territory" in such license agreement;
(f) Except as expressly stated above, the Price Global License
Agreement shall remain in full force and effect;
(g) Any party to the Price Global License Agreement will upon
request sign a reasonable amendment to the Price Global License Agreement
that incorporates the provisions of this paragraph 2.3.
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2.4 INTEREST IN PRICE GLOBAL. For one dollar and other good and
valuable consideration the receipt of which is hereby acknowledged, and as of
the Effective Date, TPC hereby sells, conveys, transfers and assigns to PEI
(or to PEI's Downstream Affiliate that PEI has so designated by written
notice to PriceCostco before the Effective Date), free and clear of any liens
or encumbrances, TPC's 49% ownership interest in Price Global, at which time
PEI (or such Downstream Affiliate that PEI has designated above) shall assume
all rights and liabilities of TPC as an LLC member of Price Global; PROVIDED
THAT, with respect to any act, occurrence or communication before the
Effective Date, TPC shall be entitled to enforce Sections 3.15 and 7.5 of the
Price Global LLC Agreement (respectively, concerning "Indemnification" and
"Confidentiality") and shall remain subject to the obligations of said
Section 7.5.
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2.5 PRICE GLOBAL OPERATING AGREEMENT. The Price Global Operating
Agreement is hereby terminated and shall be of no further force and effect as
of the Effective Date; EXCEPT that Section 2.2(e) thereof concerning
"Confidentiality" shall remain in effect; EXCEPT that Price Global and PEI
shall, within thirty (30) days of the Effective Date, return to PriceCostco
any information received from PriceCostco or its Affiliates under Section
2.2(a), (f) & (g) thereof without retaining any copies thereof; and EXCEPT
that PriceCostco and PEI (and their Downstream Affiliates) shall permit the
continuation of reciprocal shopping privileges with respect to stores
operated under the Price Costco Global Marks and owned (i) by Joeten
Enterprises, Inc. in the Commonwealth of the Northern Mariana Islands or
Guam, or (ii) by PriceCostco Panama, S.A. in Panama, until the Price Costco
Global Marks are no longer licensed under paragraph 2.3 above for the
territory in which the particular stores are located.
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3. ACTIONS CONCERNING PRICE QUEST
3.1 PRICE QUEST MARKS. As of the Effective Date, Price Quest, PQI
and PEI hereby convey, transfer and assign to TPC, free and clear of any
liens or encumbrances (but without warranty of registrability, enforceability
or lack of conflict with any third party's trademarks or service marks), all
of their rights, title and interest to and in the Price Quest Marks, and in
all applications, registrations and claims relating to those marks.
Contemporaneously with this Agreement, PEI, PQI and Price Quest shall execute
the Trademark Assignment at Exhibit 3.1 hereto, but TPC shall not attempt to
file the Assignment with any governmental authority before the Effective
Date. After the Effective Date, Price Quest, PEI and their Affiliates will
not use the names "Quest," "Price Quest" or "Price Club Quest" as a trademark
or service xxxx, but Price Quest may use the words "Price Quest" solely in
its LLC name.
3.2 PRICE QUEST LICENSE. As of the Effective Date, the Price Quest
License Agreement is hereby terminated.
3.3 INTEREST IN PRICE QUEST. For one dollar and other good and
valuable consideration the receipt of which is hereby acknowledged, and as of
the Effective Date, TPC hereby sells, conveys, transfers and assigns to PEI
(or to PEI's Downstream Affiliate that PEI has so designated by written
notice to PriceCostco before the Effective Date), free and clear of any liens
or encumbrances, TPC's 49% ownership interest in Price Quest, at which time
PEI (or such Downstream Affiliate that PEI has designated above) shall assume
all rights and liabilities of TPC as an LLC member of Price Quest; PROVIDED
THAT, with respect to any act, occurrence or communication before
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the Effective Date, TPC shall be entitled to enforce Sections 3.15 and 7.5 of
the Price Quest LLC Agreement (respectively, concerning "Indemnification" and
"Confidentiality") and shall remain subject to the obligations of said
Section 7.5.
3.4 PRICE QUEST OPERATING AGREEMENT. The Price Quest Operating
Agreement is hereby terminated and of no further force and effect as of the
Effective Date; EXCEPT as stated in paragraph 3.6 below, and EXCEPT that
Section 2.5(f) concerning "Confidentiality" shall remain in effect, and that
Price Quest and PEI shall, within thirty (30) days of the Effective Date and
subject to 3.6(j) below, return to PriceCostco any information and materials
received from PriceCostco or its Affiliates under Section 2.2(a) and 2.3(a)
thereof.
3.5 QUEST OPERATIONS AT PRICECOSTCO. From and after the Effective
Date, neither PEI nor its Affiliates shall operate any part of the Quest
Business in PriceCostco Warehouses or otherwise in connection with or with
reference to PriceCostco except as stated in paragraph 3.6 below.
3.6 AUTO & TRAVEL OPERATIONS AT PRICECOSTCO. From and after the
Effective Date, PEI (or PEI's Downstream Affiliate that PEI has so designated
by written notice to PriceCostco) shall have the right and duty to operate
the Auto Referral Program and the Travel Program, and shall do so only in
those PriceCostco Warehouses in the United States in which they are currently
operated by Price Quest (or which are added under paragraph 3.6(d) below),
through advertisements published in The PriceCostco Connection and through
promotional materials linked to and from PriceCostco's Internet home page,
under the following terms and conditions:
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(a) The Auto Referral Program and the Travel Program shall be
operated in substantially the same manner, at the same or higher level of
quality and value, and using the same or equivalent space in PriceCostco
Warehouses, as on the date of this Agreement (and, in each such warehouse,
PriceCostco shall (i) provide sufficient space to display one brochure rack
for the Auto Referral Program and one brochure rack and display panel for the
Travel Program and (ii) use best efforts to provide sufficient space to
display one automobile); PROVIDED THAT PEI (or its Downstream Affiliate)
shall provide to PriceCostco, for PriceCostco's prior review and approval
(which approval shall not be unreasonably withheld, or delayed if PriceCostco
has received reasonable advance notice), all brochures, flyers, display
panels, advertisements in The PriceCostco Connection, promotional materials
on the Internet, and other materials concerning these programs, prior to any
publication or distribution thereof to PriceCostco members or to others when
using any PriceCostco name or xxxx;
(b) PEI (or its Downstream Affiliate) may purchase advertising
for these programs in The PriceCostco Connection on the same terms, net of
discounts, as other advertisers for equivalent advertising space purchased;
(c) PriceCostco will, in PriceCostco Warehouses and in
substantially the same manner as on the date of this Agreement, maintain and
stock brochure racks for the Auto Referral Program and Travel Program and
provide for security of these racks and of displayed automobiles;
(d) In each of the fiscal years ending August 1997, 1998 and
1999, PriceCostco shall permit the Auto Referral Program and the Travel
Program to
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expand into as many as ten (10) additional PriceCostco Warehouses in the
United States (to the extent they exist) which will be selected by
PriceCostco with PEI's consent (which consent shall not be unreasonably
withheld), utilizing space equivalent to the space so used in existing
PriceCostco Warehouses, unless otherwise agreed by the parties.
(e) PEI (or its Downstream Affiliate) may without liability
terminate its rights and duties set forth in this paragraph 3.6 with respect
to either the Auto Referral Program or the Travel Program or both, upon sixty
(60) days written notice to PriceCostco, and such rights and duties will
terminate without any right to renew sixty (60) days from such notice. If
not earlier terminated, all rights and duties under this paragraph 3.6 with
respect to both the Auto Referral Program and the Travel Program will
terminate on October 31, 1999, without any right to renew;
(f) From all operations of these programs that occur before
these rights terminate, PEI (or its Downstream Affiliate) shall pay to
PriceCostco each of the following: (i) for the Auto Program, 20% of the
gross revenues derived from the PriceCostco Auto Program Internet site linked
to and from PriceCostco's Internet home page, and 55% of the gross revenues
derived from all other advertising or promotion via PriceCostco Warehouses,
The PriceCostco Connection or other medium which utilizes the "PriceCostco"
name or xxxx; (ii) for car rentals, hotel bookings and other travel services
besides vacation packages and cruises, 15% of the received commissions
derived from any advertising or promotion via PriceCostco Warehouses, The
PriceCostco Connection, the PriceCostco Travel Program Internet site linked
to and from PriceCostco's Internet home page, or other medium which utilizes
the "PriceCostco" name or xxxx; and (iii) for
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vacation packages and cruises, 1% of the net sales derived from any
advertising or promotion via PriceCostco Warehouses, The PriceCostco
Connection, the PriceCostco Travel Program Internet site linked to and from
PriceCostco's Internet home page, or other medium which utilizes the
"PriceCostco" name or xxxx;
(g) All such amounts shall be paid within fourteen (14)
calendar days of the end of PriceCostco's four-week accounting period in
which the revenues, commissions or sales payments are received by PEI (or its
Downstream Affiliate);
(h) Pursuant to and solely in accordance with the License
Agreement at Exhibit 3.6(h) which PEI shall execute contemporaneously with
this Agreement, PEI (or its Downstream Affiliate) (i) shall only use a
"PriceCostco Auto Program" xxxx and a "PriceCostco Travel Program" xxxx in
connection with these programs, and (ii) shall use these marks solely in
flyers and brochures and on brochure racks and display panels placed in
PriceCostco Warehouses, in advertisements in The PriceCostco Connection and
in promotional materials linked to and from the PriceCostco Internet home
page, and in non-public communications with auto dealers and travel service
providers;
(i) To the extent they are not inconsistent with the above or
with any other provision of this Agreement, Sections 2.2(b), 2.4(a)(i),
2.5(a)(i), and 2.7 of the Price Quest Operating Agreement are hereby
incorporated by reference EXCEPT that all references to the Quest Business
shall be deemed to mean only the Auto Referral Program and the Travel Program;
-20-
(j) Price Quest may retain only such membership information
from PriceCostco's membership database that has become a part of its own
customer database pursuant to Section 2.7 of the Price Quest Operating
Agreement, and neither it nor PEI nor its Affiliates may market or describe
its membership information to others as originating from or including data of
PriceCostco or its Affiliates; and
(k) Notwithstanding any other provisions of this Agreement,
PEI (and its Affiliates) may own and operate any automobile related
businesses, any travel related businesses, and any other Quest Business, in
any manner, using any medium, and in any location (and without any monetary
obligation to PriceCostco), provided that such businesses do not use in any
way the names or marks "PriceCostco," "Price Club" or "Costco," and provided
further that any such activity is not precluded under Section 4.4 of this
Agreement.
(l) Price Quest has registered Internet domain names containing
the words "Price Costco Auto" and "Price Costco Travel." PEI and its Downstream
Affiliates will promptly assign to Price Costco (or to a Downstream Affiliate
designated by PriceCostco) or relinquish as directed by PriceCostco (i) the
Internet domain name(s) containing the words "Price Costco Auto" upon any
termination of the Auto Referral Program under paragraph 3.6(e) above or of the
license to use the xxxx "Price Costco Auto Program" mentioned in paragraph
3.6(h), and (ii) the Internet domain name(s) containing the words "Price Costco
Travel" upon any termination of the Travel Program under paragraph 3.6(e) above
or of the license to use the xxxx "Price Costco Travel Program" mentioned in
paragraph 3.6(h)
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4. NON-COMPETITION COVENANTS
4.1 TERMINATION OF NON-COMPETE AGREEMENTS. All agreements and
covenants not to compete between (i) PriceCostco or its Affiliates and (ii)
PEI or its Affiliates (including without limitation Section 6.6 of the 1994
Transfer Agreement) are hereby terminated as of the Effective Date and shall
be of no further force and effect, except as explicitly stated in paragraphs
4.2, 4.3 and 4.4 below.
4.2 MARIANAS, GUAM & PANAMA NON-COMPETE. As of the Effective Date
the covenants not to compete in Section 6.6(b)(i) of the 1994 Transfer
Agreement and in Section 2.1(a) of the Price Global Operating Agreement shall
continue only (i) within the Commonwealth of the Northern Mariana Islands,
Guam and Panama, and (ii) in duration as follows:
(A) With respect to the Northern Mariana Islands and Guam,
only until the earlier of October 31, 1999, or a termination of Price
Global's Joeten License, and
(B) With respect to Panama, only until the earlier of October
31, 1999, or a termination of Price Global's Panama License.
4.3 AUTO/TRAVEL LIMITS ON PRICECOSTCO. As of the Effective Date
until October 31, 1999, PriceCostco and its Downstream Affiliates may not
conduct, and will not allow any third party to conduct, the Auto Referral
Program and the Travel Program or substantially similar programs in the
United States through PriceCostco Warehouses, The PriceCostco Connection or
the Internet; PROVIDED THAT PriceCostco and its
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Downstream Affiliates may without restriction (i) sell directly to their
members automobiles (but not by referral to a third party other than a
PriceCostco Downstream Affiliate), vacation packages (but not cruises) and
airline tickets, and (ii) investigate, experiment with and develop other
concepts in the auto and travel businesses.
4.4 AUTO/TRAVEL LIMITS ON PEI AND PRICECOSTCO. From the Effective
Date until October 31, 1999, neither PEI nor its Downstream Affiliates, nor
PriceCostco nor its Downstream Affiliates, shall operate or conduct the Auto
Referral Program, the Travel Program or a substantially similar program with,
or from within a location that is owned or operated by, any of the Specified
Companies.
4.5 INJUNCTIVE RELIEF. In the event of a breach or threatened
breach of paragraphs 4.2, 4.3 or 4.4 by any party, the parties agree that
money damages, alone, would be an inadequate remedy, and that the aggrieved
party may, pending arbitration or as part of an arbitral award under
paragraph 7.4 below, apply for and obtain injunctive and other equitable
relief without necessity of bond or other security, to prevent or remedy such
breach.
5. COSTS & OTHER MATTERS CONCERNING THE TRANSFERS
5.1 FEES & COSTS. Fees and costs shall be paid as follows:
(A) Paragraphs 5.4 below shall apply to certain fees and costs
incurred between the date of this Agreement and the Effective Date with
respect to interim safeguards;
-23-
(B) Paragraph 2.2(f) above shall apply to certain fees and
costs incurred with respect to Panama;
(C) Except as provided in paragraph 2.2(f) for Panama, TPC and
PCII will prepare the documentation for, and cause the filing and recordation
of, the assignments to them under this Agreement, and reimburse those
reasonable fees and costs that PEI and its Affiliates incur to third parties
in connection with such assignments after the Effective Date for acts taken
at the express direction of TPC or PCII; PROVIDED THAT PEI provides detailed
invoices from and proofs of payment to the payee of each expense covered by
this paragraph 5.1(c); and
(D) Otherwise, each party shall be solely responsible for all
fees and costs it incurs with respect to any act or transaction contemplated
by this Agreement.
5.2 REPRESENTATIONS. PEI, PGT, PQI, Price Global and Price Quest
warrant and represent that:
(A) Complete and accurate lists of all applications and
registrations of the Price Costco Global Marks, and of the Price Quest Marks,
that they or their Affiliates own or have filed with any governmental
authority (or that were previously assigned by PriceCostco or its
Affiliates), and of the file numbers, trademark or service xxxx classes,
registration dates, application dates and status thereof, appear respectively
in Exhibit 5.2A and Exhibit 5.2B hereof;
(B) PGT or Price Global own each of the Price Costco Global
Marks, and neither they nor their Affiliates have (i) licensed or
sub-licensed any of the Price Costco Global Marks except to Joeten
Enterprises, Inc. pursuant to Price Global's
-24-
Joeten License and to PriceCostco Panama, S.A. pursuant to Price Global's
Panama License, or (ii) assigned any of the Price Costco Global Marks (except
that PGT has previously assigned certain of these Marks to Price Global); and
(c) Neither PEI, PQI nor Price Quest nor their Affiliates have
(i) licensed or sub-licensed any of the Price Quest Marks, or (ii) assigned
any of the Price Quest Marks (except that PQI has previously assigned certain
of these Marks to Price Quest).
5.3 TRADEMARK DOCUMENTS. After the Effective Date, PEI, Price
Global and Price Quest shall (i) promptly deliver to PriceCostco all file
wrappers, applications, registrations, files of trademark counsel, and
correspondence to or from any governmental authority that are in their
custody or control and that concern the Price Costco Global Marks and the
Price Quest Marks, and (ii) will promptly sign, and to cause their Downstream
Affiliates to promptly sign, any documentation reasonably necessary to file,
perfect or transfer to PriceCostco and its Affiliates (e.g., PCII and TPC)
any applications or registrations that concern those marks, to provide all
evidence reasonably necessary for these purposes, and to otherwise cooperate,
and to cause their Downstream Affiliates to cooperate, with PriceCostco and
its Affiliates, and use diligent and reasonable efforts to cause their other
Affiliates to do each of the foregoing; PROVIDED THAT this paragraph 5.3 will
apply to the "PRICE COSTCO" xxxx in Costa Rica and Panama when assignment of
such xxxx is required under paragraph 2.2(h) above.
5.4 INTERIM SAFEGUARDS. Between the date of this Agreement and the
Effective Date, Price Global, Price Quest, PEI and their Downstream
Affiliates shall
-25-
(A) As to Panama, apply paragraphs 2.2(a) through 2.2(f) of
this Agreement as if it applied between the date of this Agreement and the
Effective Date; PROVIDED that no reimbursement of expenses will occur if the
settlement referred to in Recital C does not become final;
(B) As to all other countries in the Specified Geographical
Areas, take all necessary or appropriate steps to preserve all applications
and registrations, including all rights and claims relating to those
applications and registrations, with respect to the Price Costco Global
Marks, or the Price Quest Marks, so that no such right, claim application or
registration is abandoned or materially adversely affected, and will at the
request of PriceCostco make filings to preserve rights with respect to the
marks and take steps to oppose uses, applications and registrations that in
PriceCostco's view conflict with any such marks, and PriceCostco will
reimburse PEI for the costs of those steps which are taken between the date
of this Agreement and the Effective Date, which PriceCostco has approved in
advance (which approval may not be unreasonably withheld if PEI gives
reasonable advance notice of the estimated costs and of the specific services
for which such costs will be incurred), and for which PEI provides detailed
invoices from and proofs of payment to the payee of each such expense;
PROVIDED THAT, whether or not the settlement referred to in Recital C becomes
final, PriceCostco will reimburse such costs incurred for new applications
filed at PriceCostco's request and for actions taken at PriceCostco's request
to oppose uses, applications and registrations in countries where PGT or
Price Global do not have applications listed in Exhibit 5.2A; and PROVIDED
further that no other
-26-
reimbursement will occur if the settlement referred to in Recital C does not
become final; and
(C) Promptly inform PriceCostco of any use, application or
registration in the Specified Geographical Areas (except Panama) of any xxxx
or name of which they are aware and which infringes or is substantially
similar to any of the Price Costco Global Marks, and, at PriceCostco's
election, direction and expense, prosecute or oppose any such use,
application or registration; PROVIDED, however that Price Global, Price
Quest, PEI and their Affiliates may elect to so prosecute or oppose such use,
at their own direction and expense.
5.6 Any reference to a "xxxx" in this Agreement shall be deemed to
include any stylized form of the xxxx and any logo or design that includes
the xxxx.
5.7 Nothing in this Agreement shall affect any rights or
liabilities between or among the parties arising from any tax allocation
agreement, or from any balances owed on previous commercial transactions
between PriceCostco or any of its Downstream Affiliates and either Price
Global, PGT, Price Quest, or PQI.
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6. CERTAIN "PRICE" MARKS
6.1 "PRICESMART" AGREEMENT. PriceCostco on behalf of itself and
its Downstream Affiliates and PEI on behalf of itself and its Downstream
Affiliates agree that PEI and its Downstream Affiliates may use the name
"Price" in a "PriceSmart" xxxx, but they shall not use a "PriceSmart" xxxx
for or in connection with a Club Business or any other membership activity
named "PriceSmart" in the United States, Canada or Mexico; no such limitation
applies outside the United States, Canada or Mexico.
This limitation as to use of the name "Price" and the xxxx
"PriceSmart" shall no longer apply commencing 24 months after PriceCostco and
its Downstream Affiliates cease their use of the names and marks "Price
Costco" and "Price Club."
6.2 PROMOTION. PEI and its Downstream Affiliates shall not in any
way promote their businesses using the "PriceCostco" or "Price Club" names or
marks, or the goodwill associated with those names and marks except as
otherwise in this Agreement provided.
Nothing contained herein shall restrict the employees of PEI or its
Downstream Affiliates from truthfully referencing their prior employment and
responsibilities with PriceCostco or its Downstream Affiliates if, at the
same time, they expressly disclaim any present association with PriceCostco
and Price Club.
-28-
6.3 REGISTRATION PRECLUSION. PEI and its Downstream Affiliates and
PriceCostco and its Downstream Affiliates shall each take reasonable steps
and cooperate with each other so that
(A) any application or registration of the "PriceSmart" xxxx
does not preclude any application or registration by PriceCostco or its
Downstream Affiliates of the "Price Costco" or "Price Club" marks; and
(B) any application or registration of the "Price Costco" or
"Price Club" marks does not preclude any application or registration by PEI
or its Downstream Affiliates of the "PriceSmart" xxxx.
6.4 CLAIMS TO "PRICE" MARKS. Neither this Agreement, nor the
License Agreement to be executed under paragraph 3.6(h) above, nor any
trademark assignments to be executed pursuant to this Agreement, nor any
Exhibit to this Agreement, nor the Stipulation of Settlement will
(A) Affect any existing or future rights or liabilities of any
party, or between or among the parties, concerning PEI's or its Affiliates'
application for, or registration or use of, or any claim of right or cause of
action by any of them to apply for, register or use, currently or in the
future, the "PRICE ONLINE" xxxx or any other xxxx or name of which the word
"PRICE" is an element, or any claims, causes of action, oppositions, and
objections of PriceCostco and its Affiliates with respect thereto -- except
as explicitly provided in paragraphs 6.1 through 6.3 above and in the
licenses and assignments to be executed pursuant to this Agreement (and said
licenses and assignments
-29-
shall not be deemed to affect marks or names other than those which are the
subjects of those licenses and assignments); or
(B) Be deemed a waiver of or estoppel with respect to any
rights or liabilities, or an acquiescence in any act or circumstance, with
respect to any such marks.
7. GENERAL PROVISIONS
7.1 FURTHER ASSURANCES. Subject to the terms and conditions of
this Agreement, parties shall (i) use all reasonable efforts to take or cause
to be taken all actions, and do or cause to be done all things, that are
necessary, proper or advisable to consummate and make effective the
transactions contemplated by this Agreement, (ii) to promptly execute any
assignments, documents, instruments or conveyances of any kind which may be
reasonably necessary or advisable to carry out any of the transactions
contemplated hereunder, and (iii) to cooperate with each other in connection
with the foregoing.
7.2 AFFILIATE COMPLIANCE. PriceCostco and PEI shall each cause
each of their Downstream Affiliates, whether now existing or hereafter formed
and whether or not named herein, and shall use best efforts to cause any
Person who may hereafter control either of them as well as any such Person's
Downstream Affiliates, (i) to comply with the terms of this Agreement, and
(ii) to take no act that would interfere or be inconsistent with any of the
terms of this Agreement; and shall use diligent and reasonable efforts to
cause their other Affiliates to do each of the foregoing.
-30-
7.3 GUARANTIES. To the extent any Downstream Affiliates of PEI or
PriceCostco perform any duties or assume any liabilities hereunder, PEI and
PriceCostco each hereby guarantee the performance of such duties and the
discharge of such liabilities by its respective Downstream Affiliates.
7.4 ARBITRATION. All claims and disputes between or among the
parties to this Agreement relating in any way to this Agreement or its
performance, interpretation, validity, breach or subject matter (including
any contract, tort or statutory claim), shall be resolved by binding
arbitration in the manner set forth in Section 10.3 of the 1994 Transfer
Agreement, which is hereby incorporated by reference and made a part of this
Agreement. Before a party commences any arbitration, it will give the
opposing party or parties written notice of the claim or dispute, and, during
the seven (7) days following the notice, the parties concerned will make
diligent and reasonable efforts to confer at least once (by telephone or in
person) in an attempt to resolve the claim or dispute.
7.5 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of New York (regardless of the laws that might be applicable under
principles of conflicts of law) as to all matters, including but not limited
to matters of validity, construction, effect, performance and remedies.
7.6 NOTICES. Any notices or other communications required or
permitted hereunder shall be in writing and shall be deemed duly given upon
(a) transmitter's confirmation of a receipt of a facsimile transmission, (b)
confirmed delivery by a standard overnight carrier or (c) the expiration of
five (5) business days after the day when mailed by certified or registered
mail, postage prepaid, addressed to the
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following addresses (or at such other address as PriceCostco or PEI shall
specify by like notice):
If to PriceCostco or TPC, to:
Price/Costco, Inc.
000 Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
and
Xxxx Xxxxxxxx
If to PEI, Price Global or Price Quest, to:
Price Enterprises, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
and
Xxxxxx X. Xxxx
Any matter or material for which consent or approval is sought or required
under paragraph 5.4(b) of this Agreement shall first be sent under this
notice provisions to the party from whom consent or approval is sought.
7.7 AMENDMENT; WAIVER. This Agreement may not be amended except by
an instrument in writing signed by each of the parties hereto. Any agreement
on the part of a party hereto to an extension or waiver with respect to any
obligation or condition hereunder shall be valid only if set forth in an
instrument in writing signed on behalf of such party.
7.8 BINDING EFFECT; NO ASSIGNMENTS. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and
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their respective successors and assigns. No party may assign any of its
rights or delegate any of its duties hereunder, except as expressly stated
herein or except to a party's Downstream Affiliate.
7.9 SEVERABILITY. If any provision of this Agreement shall be held
invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not
affect any other provision hereof.
7.10 INTERPRETATION. The descriptive headings contained in this
Agreement are solely for convenience of reference, and do not constitute a
part of this Agreement and shall not in any way affect the meaning or
interpretation of this Agreement.
7.11 COMPLETE AGREEMENT. This Agreement and the Stipulation of
Settlement constitute the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior agreements and understandings
with respect thereto.
7.12 COUNTERPARTS. This Agreement may be executed in two or more
counterparts all of which shall be considered one and the same agreement and
each of which shall be deemed an original.
7.13 TERMINATION. This Agreement will terminate and be of no
further force or effect if, before the Effective Date, the Stipulation of
Settlement terminates.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed by its duly authorized officers as of the day and year first
above written.
PRICE/COSTCO, INC.
By:
---------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
PRICE ENTERPRISES, INC.
By:
---------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
THE PRICE COMPANY
By:
---------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
PRICE COSTCO INTERNATIONAL, INC.
By:
---------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
COSTCO WHOLESALE CORPORATION
By:
---------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
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PRICE GLOBAL TRADING, L.L.C.
By:
---------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
PRICE QUEST, L.L.C.
By:
---------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
PGT, INC.
By:
---------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
PQI, INC.
By:
---------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
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LIST OF EXHIBITS
Exhibit 2.1A Assignment (for Australia)
Exhibit 2.1B Assignment (for New Zealand)
Exhibit 2.1C Assignment (for Costa Rica)
Exhibit 2.1D Assignment (for Panama)
Exhibit 2.1E Assignment (for Nicaragua)
Exhibit 2.1F Assignment (for El Salvador)
Exhibit 2.1G Assignment (for Guatemala)
Exhibit 2.1H Assignment (for Honduras)
Exhibit 2.1J Assignment (for Jamaica)
Exhibit 2.1K Assignment (for Dominican Republic)
Exhibit 2.1L Assignment (for Trinidad or Tobago)
Exhibit 2.1M Assignment (for the Bahamas)
Exhibit 2.1N Assignment (for Barbados)
Exhibit 3.1 Assignment (Price Quest Marks)
Exhibit 3.6(h)License Agreement (for Auto/Travel)
Exhibit 5.2A List of Applications and Registrations for
Price Costco Global Marks
Exhibit 5.2B List of Applications and Registrations by PEI and
Its Downstream Affiliates for Price Quest Marks
