[30 Pa.B. 5619]
[Continued from previous Web Page]
ADDENDUM TO THE
MASTER SETTLEMENT AGREEMENTThe undersigned Settling States and Participating Manufacturers hereby agree as follows:
1. That the following companies are signatories to the Master Settlement Agreement (''MSA'') as amended herein. In the case of a company that had not previously enacted the MSA, the signature below shall also be treated as execution of the MSA as amended herein.
A. Liggett Group Inc.
B. Commonwealth Brands, Inc.
C. Sante Fe Natural Tobacco Company, Inc.
D. [Space intentionally left blank]
E. ITL (USA) Limited
F. Japan Tobacco International U.S.A., Inc.
G. King Maker Marketing, Inc.
H. Lane Limited
I. Lignum-2, Inc.
J. LTD Corporation
K. The Medallion Company, Inc.
L. [Space intentionally left blank]
M. [Space intentionally left blank]
N. Premier Marketing Incorporated
O. P. T. Djarum
P. Sherman's 1400 Broadway N.Y.C. Ltd.
Q. Societe Nationale d'Exploitation Industrielle des Tabacs et Allumettes
R. Tobacco Exporters International (USA) Ltd.
S. Top Tobacco, L.P.
2. The MSA is hereby amended as set forth in the attached Amendments No. 2 through and including No. 11.
3. Revision of the MSA pursuant to subsection XVIII(b)(2) shall not be required by virtue of any of the amendments set forth herein.
4. All capitalized terms used in this Addendum and attached Amendments not otherwise defined have the meaning given such terms in the MSA.
IN WITNESS WHEREOF, each Settling State and each Participating Manufacturer, through their fully authorized representatives, have agreed to this Addendum and Amendments.
PHILIP MORRIS INCORPORATED
Date: February 19, 1999R. J. REYNOLDS TOBACCO COMPANY
Date: February 15, 1999BROWN & WILLIAMSON TOBACCO CORPORATION
Date: February 17, 1999LORILLARD TOBACCO COMPANY
Ronald S. Milstein
Vice President, General Counsel
Date: February 17, 1999LIGGETT GROUP INC.
Consenting only to Amendments 2, 3, 9 and 10 to the MSA.Date: February 21, 1999COMMONWEALTH BRANDS, INC.
Date: February 18, 1999SANTA FE NATURAL TOBACCO
COMPANY, INC.
Date: February 15, 1999CROSSLINE DISTRIBUTORS, LTD.
Date:ITL (USA) LIMITED
Date: February 15, 1999JAPAN TOBACCO INTERNATIONAL U.S.A., INC.
Masayuki Hamada, President
Date: February 16, 1999KING MAKER MARKETING, INC.
Date: February 12, 1999LANE LIMITED
Date: February 15, 1999LIGNUM-2, INC.
Date: February 16, 1999LTD CORPORATION
Date: February 12, 1999THE MEDALLION COMPANY, INC.
Date: February 15, 1999PREMIER MARKETING INCORPORATED
Date: February 15, 1999P. T. DIARIUM
Date: February 15, 1999SOCIETE NATIONALE d'EXPLOITATION
INDUSTRIELLE des TABACS et ALLUMETTES
Date: February 17, 1999SHERMAN'S 1400 BROADWAY N.Y.C., LTD.
Date: February 12, 1999TOBACCO EXPORTERS INTERNATIONAL (USA) LTD.
Date: February 15, 1999TOP TOBACCO, L.P.
Seth I. Gold, Executive Vice President
Date: February 12, 1999[ATTORNEY GENERAL SIGNATORIES OMITTED]
AMENDMENT NO 2 TO
MASTER SETTLEMENT AGREEMENTSection XVIII(b)(2) of the Master Settlement Agreement is hereby amended by deleting the sentence beginning with the word ''The'' on the second to last line of page 128 and ending with the word ''Products'' on the ninth line of page 129 [The Attachment reads as follows:
Manufacturer in a manner other than as expressly provided for in this Agreement; or
(b) on or after October 1, 2000, on non-economic terms more favorable to such governmental plaintiff than the non-economic terms of this Agreement, and such Future Settlement Agreement includes terms that provide for the implementation of non-economic tobacco-related public health measures different from those contained in this Agreement, then this Agreement shall be revised with respect to such Participating Manufacturer to include terms comparable to such non-economic terms, unless a majority of the Settling States elects against such revision.
(2) If any Settling State resolves by settlement Claims against any Non-Participating Manufacturer after the MSA Execution Date comparable to any Released Claim, and such resolution includes overall terms that are more favorable to such Non-Participating Manufacturer than the terms of this Agreement (including, without limitation, any terms that relate to the marketing or distribution of Tobacco Products and any term that provides for a lower settlement cost on a per pack sold basis), then the overall terms of this Agreement will be revised so that the Original Participating Manufacturers will obtain, with respect to that Settling State, overall terms at least as relatively favorable (taking into account, among other things, all payments previously made by the Original Participating Manufacturers and the timing of any payments) as those obtained by such Non-Participating Manufacturer pursuant to such resolution of Claims. Provided, however, that revision of this Agreement pursuant to this subsection (2) shall not be required by virtue of the subsequent entry into this Agreement by a Tobacco Product Manufacturer that has not become a Participating Manufacturer as of the MSA Execution Date. Notwithstanding the provisions of subsection XVIII(j), the provisions of this subsection XVIII(b)(2) may be waived by (and only by) unanimous agreement of the Original Participating Manufacturers.
(3) The parties agree that if any term of this Agreement is revised pursuant to subsection (b)(l) or (b)(2) above and the substance of such term before it was revised was also a term of the Consent Decree, each affected Settling State and each affected Participating Manufacturer shall jointly move the Court to amend the Consent Decree to conform the terms of the Consent Decree to the revised terms of the Agreement.
(4) If at any time any Settling State agrees to relieve, in any respect, any Participating Manufacturer's obligation to make the payments as provided in this]
AMENDMENT NO. 3 TO
MASTER SETTLEMENT AGREEMENTSection XII(a)(4)(A) of the Master Settlement Agreement is hereby amended by deleting the parenthetical phrase beginning on the 16th line of page 111 and ending on the 19th line of page 111 stating: ''(and such Released Party gives notice to the applicable Settling State within 30 days of the service of such claim-over (or within 30 days after the MSA Execution Date, whichever is later) and prior to entry into any settlement of such claim-over)'' and adding in place of such parenthetical phrase the following parenthetical phrase: ''(and such Released Party gives notice to the applicable Settling State at the end of the calendar quarter (the quarterly periods to end on February 20, May 20, August 20, and November 20 of each year) in which service of such claim-over is received (or within 30 days after the MSA Execution Date, whichever is later) and prior to entry into any settlement of such claim-over; provided, however, that service of any claims received within 15 days before the end of any quarterly period shall be deemed to have been received during the subsequent calendar quarter)''
Section XII(a)(4)(B) of the Master Settlement Agreement is hereby amended by deleting the parenthetical phrase beginning after the word ''settlement'' on the 10th line of page 112 and ending on the 14th line of page 112 before the work ''judgment'' stating: ''(to the extent that such Released Party has given notice to the applicable Settling State within 30 days of the service of such claim-over (or within 30 days after the MSA Execution Date, whichever is later) and prior to entry into any settlement of such claim-over),'' and adding in place of such parenthetical phrase the following parenthetical phrase: ''(to the extent that such Released Party has given notice to the applicable Settling State at the end of the calendar quarter in which service of such claim-over is received (or within 30 days after the MSA Execution Date, whichever is later), the end of the quarterly periods and the date on which service is deemed to have been received being those set forth in section XII(a)(4)(A) (as amended by this amendment), and prior to entry into any settlement of such claim-over),''
Section XII(a)(8)(A) of the Master Settlement Agreement is hereby amended by deleting the parenthetical phrase beginning on the 19th line of page 114 and ending on the 22nd line of page 114 stating: ''(and such Released Party gives notice to the applicable Settling State within 30 days of service of such claim-over (or within 30 days after the MSA Execution Date, whichever is later) and prior to entry into any settlement of such claim-over)'' and adding in place of such parenthetical phrase the following parenthetical phrase: ''(and such Released Party gives notice to the applicable Settling State at the end of the calendar quarter (the quarterly periods to end on February 20, May 20, August 20, and November 20 of each year) in which service of such claim-over is received (or within 30 days after the MSA Execution Date, whichever is later) and prior to entry into any settlement of such claim-over; provided, however, that service of any claims received within 15 days before the end of any quarterly period shall be deemed to have been received during the subsequent calendar quarter)''
Section XII(a)(8)(B) of the Master Settlement Agreement is hereby amended by deleting the parenthetical phrase beginning after the word ''settlement'' on the 15th line of page 115 and ending on the 18th line of page 115 stating: ''(to the extent that such Released Party has given notice to the applicable Settling State within 30 days of the service of such claim-over (or within 30 days after the MSA Execution Date, whichever is later) and prior to entry into any settlement of such claim-over)'' and adding in place of such parenthetical phrase the following parenthetical phrase: ''(to the extent that such Released Party has given notice to the applicable Settling State at the end of the calendar quarter in which service of such claim-over is received (or within 30 days after the MSA Execution Date, whichever is later), the end of the quarterly periods and the date on which service is deemed to have been received being those set forth in section XII(a)(8)(A) (as amended by this amendment), and prior to entry into any settlement of such claim-over)''
Section XII(b) of the Master Settlement Agreement is hereby amended by deleting the first sentence of that section beginning with the word ''If'' on the 16th line of page 117 and ending with the word ''state'' on the last line of page 117 and adding in place of such sentence the following sentence: ''If a Releasing Party (or any person or entity enumerated in section II(pp), without regard to the power of the Attorney General to release claims of such person or entity) nonetheless attempts to maintain a Released Claim against a Released Party, such Released Party shall give written notice of such potential claim to the Attorney General of the applicable Settling State at the end of the calendar quarter (the quarterly periods to end on February 20, May 20, August 20, and November 20 of each year) in which service of such claim is received (or within 30 days after the MSA Execution Date, whichever is later) (unless such potential claim is being maintained by such Settling State); provided, however, that service of any claims received within 15 days before the end of any quarterly period shall be deemed to have been received during the subsequent calendar quarter.''
AMENDMENT NO. 4 TO
MASTER SETTLEMENT AGREEMENTNotwithstanding sections II(jj) and II(uu) of the Master Settlement Agreement (''MSA''), ITL (USA) Limited (''ITL (USA)'') shall be considered to be a Tobacco Product Manufacturer and a Participating Manufacturer, and Imperial Tobacco Limited and Imasco Limited (collectively ''Imperial'') shall for purposes of the MSA not be considered to be a Tobacco Product Manufacturer at any time after the MSA Execution Date (and Imperial shall, for purposes of the Model Statute set forth in Exhibit T to the MSA only, be considered to be a Participating Manufacturer), provided that:
(1) ITL (USA) signs the MSA within 90 days after the MSA Execution Date and is bound by the MSA in all Settling States in which such Agreement binds Original Participating Manufacturers;
(2) Any Cigarettes manufactured by Imperial, or under trademarks owned by or licensed to Imperial, that Imperial intends to be sold in the States (collectively, ''Imperial Cigarettes'') are sold in the States only through one or more importer (collectively, ''Imperial Importers'') each of whom: (A) is a Participating Manufacturer; (B) will be responsible for the payments under the MSA with respect to the Imperial Cigarettes that it imports, is obligated to pay the taxes specified in subsection II(z) of the MSA on the Imperial Cigarettes that it imports, and is obligated to report the Imperial Cigarettes that it imports (if shipped in or to the fifty United States, the District of Columbia and Puerto Rico) as its shipments in the manner prescribed in subsection II(jj) of the MSA; (c) is obligated, after the date of this Amendment, not to import, sell or distribute Cigarettes manufactured (or purchased for resale in the States) by a Non-Participating Manufacturer; and (D) is either an Original Participating Manufacturer or a present or future Affiliate of Imperial (provided that, in calculating payment obligations under section of IX(I) of the MSA attributable to Imperial Cigarettes imported by a future Affiliate of Imperial that is itself a Subsequent Participating Manufacturer as of February 22, 1999 (other than preexisting brands of the future Affiliate itself), the 1997 and 1998 Market Shares (and 125 percent thereof) of such Affiliate shall be deemed to equal zero);
(3) Imperial fulfills the responsibilities and obligations set forth in paragraph 2(B) to the extent that an Imperial Importer fails to do so and Imperial undertakes good-faith efforts to enforce the obligation set forth in paragraph 2(C);
(4) Neither Imperial nor any other manufacturer of Imperial Cigarettes advertises or markets Imperial Cigarettes in the States;
(5) (A) The Supplemental Import and Distribution Agreement dated February 10, 1999 among ITL (USA), Imasco Limited and Imperial Tobacco Limited attached hereto as Exhibit A remains in full force and effect and the parties are in full compliance therewith (unless ITL (USA) ceases to import and does not import Imperial Cigarettes); and (B) Imperial enters into similar agreements with every Imperial Importer (except for ITL (USA) or an Imperial Importer that is an Original Participating Manufacturer) each of which agreements contains all of the substantive terms set forth in the Supplemental Import and Distribution Agreement attached hereto as Exhibit A, and the parties thereto are in full compliance with such terms (unless the Imperial Importer in question ceases to import and does not import Imperial Cigarettes); provided, however, that it shall also be deemed to be full compliance with this paragraph (5) if Imperial (A) ceases to manufacture and does not manufacture Cigarettes that Imperial intends to be sold in the States; and (B) ceases to intend and does not intend that Cigarettes manufactured under trademarks owned by or licensed to Imperial be sold in the States;
(6) For purposes of sections IX(i) and IX(d)(l)(B) of the Master Settlement Agreement, ITL (USA)'s 1997 and 1998 Market Share: (A) shall not include cigarettes manufactured (or purchased for resale in the States) by any Non-Participating Manufacturer; and (B) shall include the Market Share for 1997 or 1998, whichever is in question, of Imperial, if any, with respect to brands of Imperial Cigarettes as to which ITL (USA) has exclusive import and distribution rights in the States with respect to the entire calendar year immediately preceding the year in which the calculation in question is being made (but only if and so long as the conditions specified in paragraphs (1)-(5) above are and continue to be met).
All capitalized terms not otherwise defined shall have the meaning given such terms in the Master Settlement Agreement, except that ''Affiliate'' shall mean: ''a person who directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with, another person.'' Solely for purposes of this definition, the terms ''owns,'' ''is owned'' and ''ownership'' mean ownership of an equity interest, or the equivalent thereof, of 50 percent or more, and the term ''person'' means ''an individual, partnership, committee, association, corporation or any other organization of group of persons.''
Dated: February 10, 1999
New York, N.Y.ITL (USA) LIMITED
By: __________
BILL ROSE
VICE PRESIDENT
EXHIBIT A TO AMENDMENT NO. 4 TO
MASTER SETTLEMENT AGREEMENT
SUPPLEMENTAL IMPORT AND
DISTRIBUTION AGREEMENTThis Supplemental Import and Distribution Agreement dated February 10, 1999 made by and between Imperial Tobacco Limited, a company duly incorporated under the Canada Business Corporation Act with its principal office at 3810 St. Antoine Street West, Montreal, Quebec, Canada H4C 1B5, Montreal, Canada, and Imasco Limited, a company duly incorporated under the Canada Business Corporation Act with its principal office at 600 de Maisonneuve Blvd. West, 20th floor, Montreal, Quebec, H3A 3K7, Montreal, Canada (collectively, the ''Manufacturer/Exporter''), as the first party and ITL (USA) Limited (the ''Importer''), a company duly incorporated under the laws of the State of Delaware, U.S.A. with its principal office at Heritage on the Garden, 75 Park Plaza, Boston, Massachusetts 02116, as the second party.
WITNESSETH: WHEREAS, the Manufacturer/Exporter is engaged in the business, among other things, of exporting from Canada and selling to persons in the territory of the U.S.A. Cigarettes manufactured by and under trademarks owned by or licensed to the Manufacturer/Exporter;
WHEREAS, the Importer maintains a marketing organization and markets cigarettes in the area defined below as the Territory;
WHEREAS, the Manufacturer/Exporter and the Importer desire to promote the sale of said Cigarettes in said Territory;
WHEREAS, the Manufacturer/Exporter and the Importer have previously entered into and currently conduct business pursuant to a Supply Agreement dated April 5, 1993 (the 'supply Agreement'') providing that the Importer is the exclusive importer and distributor for effecting the import and distribution in said Territory of said Cigarettes under the brand names listed in Appendix A, and now wish to supplement the terms of said agreement in order to permit ITL (USA) to execute an amendment tothe Master Settlement Agreement of November 23, 1998 (the ''MSA'') in order to become a Participating Manufacturer under that agreement (the ''Amendment'');
WHEREAS, the Manufacturer/Exporter desires to continue the appointment of the Importer on the terms and conditions set forth in the Supply Agreement (and as hereinafter set forth) as its exclusive importer and distributor for effecting the import and distribution of said Cigarettes under said brand names in the Territory;
WHEREAS, the Importer remains willing to act under such appointment as importer and distributor of said Cigarettes subject to terms and conditions; and
WHEREAS, the parties hereto intend that the Settling States and the Original Participating Manufacturers (as those terms are defined in the MSA) be deemed third-party beneficiaries of this Supplemental Import and Distribution Agreement.
Now, therefore, in consideration of the mutual covenants and acknowledgments herein made, the parties hereto agree that the following terms amend and control the terms of the Supply Agreement between the Importer and the Manufacturer/Exporter:
1. APPOINTMENT
The Manufacturer/Exporter hereby reaffirms its appointment of the Importer as its exclusive importer and distributor for sale in the territory of any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, American Samoa and the Northern Marianas (the ''Territory'') of any and all Cigarettes (as such term is defined in the MSA) under any of the brand names listed in Appendix A which are and will be manufactured by the Manufacturer/Exporter or any licensee or Affiliate of the Manufacturer/Exporter and exported for intended sale in the Territory (and any other brand names as may be added from time to time, of which the Manufacturer/Exporter shall give notice to the Notice Parties as soon as reasonably practicable after their addition), subject to the terms and conditions appearing in this Agreement. The term ''Affiliate'' as used herein shall mean a person who directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with another person. Solely for purpose of this definition, the terms ''owns'', ''is owned'' and ''ownership'' mean ownership of any equity interest, or the equivalent thereof, of 50 percent or more, and the term ''person'' means an individual, partnership, committee, association, corporation or any other organization of group of persons.
2. EXCLUSIVITY
Subject to the provisions of section 4 below, the Manufacturer/Exporter shall not appoint any person other than the Importer as an additional importer and distributor for sale within the Territory of the Cigarettes described in section 1 above and shall not sell or distribute such Cigarettes in the Territory except through the Importer. The Manufacturer/Exporter shall not market or advertise such Cigarettes in the Territory.
3. COMPLIANCE WITH LAW
The Manufacturer/Exporter shall supply Cigarettes which comply with the requirements and applicable regulations effective in the Territory.
The Importer shall obtain all the governmental certification, license, permit or approval necessary to import and distribute Cigarettes in the Territory and shall sell the Cigarettes in the Territory in strict compliance with any and all laws, regulations and other requirements of federal, state, and local governments and their agencies. The Importer shall be responsible for the payments under the MSA with respect to the Cigarettes described in section 1 above, shall pay the taxes specified in subsection II(z) of the MSA on such Cigarettes, and shall report such Cigarettes (if shipped in or to the fifty United States, the District of Columbia and Puerto Rico) as its shipments in the manner prescribed in subsection II(jj) of the MSA.
4. DURATION AND TERMINATION
This Agreement shall be effective on the day and year first above written and shall continue for an initial period of two years. Thereafter this Agreement shall be automatically renewed upon the same terms and conditions, for successive additional terms of two years each, unless at least ninety (90) days prior to the expiration of the initial or renewal term, as the case may be, one party shall give the other party written notice of its desire to terminate this Agreement upon the expiration of the term then in effect; provided, however, that as long as the MSA remains in effect, this Agreement shall not be terminated by any party under this paragraph, any other paragraph hereof or any provision of the Supply Agreement unless the Manufacturer/Exporter has appointed another entity or entities meeting the requirements set forth in paragraph (2)(A)-(D) of the Amendment as importer(s) for the Territory of the Cigarettes described in section 1 above pursuant to an agreement with like terms as this Agreement. Provided, however, that the Manufacturer/Exporter may terminate this Agreement without appointing a new importer if both Imperial Tobacco Limited and Imasco Limited cease to manufacture and do not manufacture Cigarettes that either company intends to be sold in the States, and cease to intend and does not intend that Cigarettes manufactured under trademarks owned by or licensed to either Imperial Tobacco Limited or Imasco Limited be sold in the States.
All capitalized terms not otherwise defined shall have the meaning given such terms in the MSA.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the day and year first above written.
ITL (USA) Limited
By BILL ROSE, VICE PRESIDENTImperial Tobacco Limited
By D. R. BROWN, PRESIDENT, CHAIRMAN AND CHIEF EXECUTIVE OFFICERImasco Limited
By ROY R. SCHWARTZ, SENIOR VICE PRESIDENTAMENDMENT TO SUPPLEMENTAL IMPORT AND DISTRIBUTION AGREEMENT DATED FEBRUARY 10, 1999.
The Supplemental Import and Distribution Agreement entered into among ITL (USA) Limited, Imasco Limited, and Imperial Tobacco Limited dated February 10, 1999 is hereby amended so that Appendix A, being the list of brands distributed through ITL (USA) Limited, is replaced by the Appendix A-1 attached hereto.
MONTREAL, February 19, 1999.
Bill Rose ITL (USA) LIMITED D. R. Brown IMASCO LIMITED D. R. Brown IMPERIAL TOBACCO LIMITED
Appendix A-1 To Supplemental
Import & Distribution AgreementCIGARETTES
Avanti 100 mm 10x20
Matinee Slims Menthol 100 mm 10x20
Avanti 100 mm 8x25
Matinee Slims Menthol 100 mm 8x25
Avanti KS 10x20
Matinee Slims Menthol KS 10x20
Avanti KS 8x25
Matinee Slims Menthol KS 8x25
Avanti Light 100 mm 10x20
Medallion Ultra Mild KS 10x20
Avanti Light 100 mm 8x25
Medallion Ultra Mild KS 8x25
Avanti Light KS 10x20
Peter Jackson Extra Light KS 10x20
Avanti Light KS 8x25
Peter Jackson Extra Light KS 8x25
Cameo Extra Mild KS 10x20
Peter Jackson KS 10x20
Cameo Extra Mild K.S. 8x25
Peter Jackson KS 8x25
Cameo KS 10x20
Peter Jackson Light KS 8x25
Cameo KS SS 8x25
Sweet Caporal Filter KS 8x25
Matinee Extra Mild KS 10x20
Sweet Caporal Plain 8x25
Matinee Extra Mild KS 8x25
du Maurier Extra Light KS 10x20
Matinee Extra Mild Regular 10x20
du Maurier Extra Light KS 8x25
Matinee Extra Mild Regular 8x25
du Maurier Extra Light Regular 10x20
Matinee KS 10x20
du Maurier Extra Light Regular 8x25
Matinee KS 8x25
du Maurier KS 10x20
Matinee Regular 10x20
du Maurier KS 8x25
Matinee Regular 8x25
du Maurier Light KS 10x20
Matinee Slims 100 mm 10x20
du Maurier Light KS 8x25
Matinee Slims 100 mm 8x25
du Maurier Light Regular 10x20
Matinee Slims KS 10x20
du Maurier Light Regular 8x25
Matinee Slims KS 8x25
du Maurier Regular 10x20
du Maurier Regular 8x25
du Maurier Special Mild 100 mmm 10x20
du Maurier Special Mild 100 mm 8x25
du Maurier Special Mild KS 10x20
du Maurier Special Mild KS 8x25
du Maurier Ultra Light KS 10x20
du Maurier Ultra Light KS 8x25
du Maurier Ultra Light Regular 10x20
du Maurier Ultra Light Regular 8x25
Mercer Full Flavour
Mercer Full Flavour 100's
Mercer Light
Mercer Light 100'sFINE CUT
Admiral/Goldcrest 6x25
Ambassador/Diplomat 6x25
Belair 6x25
Broadway/Flair 6x25
Buckingham 6x25
Cameo Extra Blend 6x25
Cameo 1x200
Cameo 6x50
Cameo Special Cut 50 Bonus 1x200
Cameo Special Cut 50 Bonus 5x50
Canadian Gold 6x25
Capri 6x25
Cardinal/Royalty 6x25
Casino/Swinger 6x25
Continental 6x25
Cortina/Formula 1 6x25
Falcon 6x25
Grand Prix/GP 6x25
HB 6x25
Herbert Taryton Fine/Winchester 6x25
Heritage/Westminster 6x25
Imperial Special Blend 6x25
Imperial Tobacco/ITL Fine Cut 6x25
Insta-Kit 6x25
Lambert & Butler 6x25
Marguerite/Valu-Pack 6x25
Matinee Ex. Mild Spec. Cut 50 Bonus 1x200
Matinee Ex. Mild Spec. Cut 50 Bonus 5x50
Matinee Extra Blend 6x25
Matinee Extra Mild Extra Blend 6x25
Matinee Extra Mild 1x200
Matinee Extra Mild 6-50
Matinee 1x200
Matinee 6x50
Minister 6x25
Imperial Special Blend 50 gram
Old Friend Shag/Compag 6x25
Imperial Special Blend 200 gram
Old Gold 6x25
Senior Service 6x25
Turret 6x25
Vogue 1x200
Vogue 6x50
Wills 6x25
AMENDMENT NO. 5 TO
MASTER SETTLEMENT AGREEMENTNotwithstanding sections II(jj) and II(uu) of the Master Settlement Agreement, Japan Tobacco International, U.S.A. Inc. shall be considered to be a Tobacco Product Manufacturer and a Participating Manufacturer, and Japan Tobacco Inc. shall not be considered to be a Tobacco Product Manufacturer (and shall, for purposes of the Model Statute set forth in Exhibit T to the Master Settlement Agreement only, be considered to be a Participating Manufacturer), provided that:
(1) Japan Tobacco International U.S.A., Inc. signs the Master Settlement Agreement within 90 days after the MSA Execution Date and is bound by such Agreement in all Settling States in which such Agreement binds Original Participating Manufacturers;
(2) The agreement dated January 13, 1999 between Japan Tobacco Inc. and Japan Tobacco International Corp., on the one hand, and Japan Tobacco International U.S.A., Inc., on the other hand, attached hereto as Exhibit A remains in full force and effect and both parties thereto fully perform their obligations thereunder;
(3) Japan Tobacco International, U.S.A. Inc. does not, after the date of this agreement, import, sell or distribute cigarettes manufactured (or purchased for resale in the States) by a Non-Participating Manufacturer; and
(4) For purposes of sections IX(i) and IX(d)(1)(B) of the Master Settlement Agreement, Japan Tobacco International U.S.A., Inc.'s 1997 and 1998 Market Share: (A) shall not include cigarettes manufactured (or purchased for resale in the States) by any Non-Participating Manufacturer; and (B) shall include the Market Share for 1997 or 1998, whichever is in question, of Japan Tobacco Inc. (but only so long as the conditions specified in paragraphs (1)--(3) above are met).
All capitalized terms shall have the meaning given such terms in the Master Settlement Agreement.
Dated: February 5, 1999
New York, N.Y.JAPAN TOBACCO INTERNATIONAL
U.S.A., INC.
By: __________
Name: Masayuki Hamada
Title: President
EXHIBIT A TO AMENDMENT NO. 5
IMPORT AND DISTRIBUTION AGREEMENT This Import and Distribution Agreement dated 13th day of January, 1999 made by and between JT International Corp. (the ''Exporter''), a company duly incorporated according to the laws of Japan with its principal office at JT Building, 2-l Toranomon 2-chome, Minato-ku, Tokyo, Japan, and Japan Tobacco Inc. (the ''Manufacturer''), a company duly incorporated according to the laws of Japan with its principal office at JT Building, 2-l Toranomon 2-chome, Minato-ku, Tokyo, Japan, jointly and severally, as the first party (the ''Manufacturer/Exporter'') and Japan Tobacco International U.S.A., Inc. (''the Importer''), a company duly incorporated according to the laws of the State of California, U.S.A. with its principle office at 2441 205th Street, Suite C-102, Torrance, CA 90501, U.S.A., as the second party.
WITNESSETH: WHEREAS, the Exporter is exclusively engaged in the business, among other things, of exporting from Japan and selling to the territory of the U.S.A. all cigarettes manufactured by and under trademarks of the Manufacturer;
WHEREAS, the Importer maintains a market organization and markets cigarettes in the area as defined as the Territory below;
WHEREAS, the Manufacturer/Exporter and the Importer desire to promote the sale of said cigarettes in said Territory;
WHEREAS, the Manufacturer/Exporter desires to continue the appointment of the Importer on the terms and conditions hereinafter set forth as its exclusive importer and distributor for effecting the import and distribution of said cigarettes; and
WHEREAS, the Importer is willing to accept such appointment as exclusive importer and distributor of said cigarettes subject to such terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and acknowledgments herein made the parties hereto agree as follows:
1. IMPORTER
1.1 Appointment
The Manufacturer/Exporter hereby appoints the Importer as its exclusive importer and distributor for sale in the territory of any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, American Samoa, and the Northern Marianas (the ''Territory'') of any and all Cigarettes (as such term is defined in the Master Settlement Agreement dated November 23, 1998 referred to hereinafter as the ''MSA'') which are and will be manufactured by the Manufacturer or any Affiliate thereof and exported for intended sale in the Territory, subject to the terms and conditions appearing in this Agreement. The term ''Affiliate'' as used herein shall mean a person who directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with, another person. Solely for purpose of this definition, the terms ''owns'', ''is owned'' and ''ownership'' mean ownership of an equity interest, or the equivalent thereof, of 50 percent or more, and the term ''person'' means an individual, partnership, committee, association, corporation or any other organization of group of persons.
1.2 Exclusivity
The Manufacturer/Exporter shall not appoint any person other than the Importer as an additional importer and distributor for sale of the Cigarettes within the Territory nor shall the Manufacturer/Exporter sell or distribute the Cigarettes in the Territory except through the Importer or market or advertise the Cigarettes in the Territory.
1.3 Sub-distributor/Sub-importer
The Importer may appoint sub-distributor(s) and/or sub-importer(s) without the prior written consent of the Manufacturer/Exporter. Such appointment shall not constitute any commitment by the Manufacturer/Exporter to any contractual relationship with the sub-distributor(s) and the sub-importer(s). The Importer shall keep the Manufacturer/Exporter informed as to the identities of all such the sub-distributor(s) and sub-importer(s).
2. RELATIONS BETWEEN PARTIES
2.1 Legal relationship
The Importer shall conduct its business on its own account, at its own risk and in its own name and shall not act as an agent or legal representative of the Manufacturer/Exporter nor give any warranty or make or agree to any condition on behalf of the Manufacturer/Exporter nor incur any obligation or other commitment for or otherwise act in the same name of the Manufacturer/Exporter unless expressly authorized in writing by the Manufacturer/Exporter.
2.2 Report
To ensure the smooth operation of this Agreement and successful business arrangements between the parties, the Importer shall furnish the Manufacturer/Exporter, on a regular basis, reports showing the quantity of sale, retail price and stock of the Cigarettes and market condition in the Territory with supporting data.
3. NAME AND TRADEMARK
3.1 Trademark right
It is acknowledged by both parties hereto that the words ''JT'', ''Japan Tobacco'', ''Japan Tobacco Inc.'' and ''JT Inc.'' whether used as brand names or trade names as well as any of the trademarks under or in relation to which the Cigarettes are distributed and sold (the ''Names and Marks''), shall be the property of the Manufacturer. Nothing herein contained shall be construed as transferring any patent, utility model, trademark, design or copyright in the Cigarettes or the Names and Marks; all such rights are expressly reserved to the true and lawful owners thereof. This Agreement shall not be construed to grant to the Importer the right of using the Names and Marks of their owners except for the purpose of advertising and selling the Cigarettes in the Territory. The Importer shall not register any of the Names and Marks without written consent by their owners under any circumstances.
3.2 Infringement by a third party
If the Importer has found that trademarks, copyrights or other intellectual property rights in terms of the Cigarettes or the Names and Marks are disputed or infringed upon by a third party, the Importer shall promptly inform the Manufacturer/Exporter thereof and assist the Manufacturer/Exporter to take steps necessary to protect its rights.
4. DISTRIBUTION
4.1 Manner of business
The Importer shall conduct its business in a manner that will reflect favorably at all times on the Manufacturer/Exporter, the Cigarettes and the good name, goodwill and reputation thereof, and shall avoid in every way any deceptive, misleading, unlawful or unethical practice that is or might be detrimental to the Manufacturer/Exporter or the Cigarettes.
4.2 Stocks
The Importer shall always carry in stock an adequate quantity of the Cigarettes to the extent commercially appropriate to actively promote demand for the Cigarettes within the Territory.
4.3 Information on sub-distributor(s)/sub-importer(s)
The Importer shall supply to Manufacturer/Exporter full names of sub-distributor(s) and/or sub-importer(s) appointed by the Importer within the Territory together with volume of the Cigarettes dealt with by each of such sub-distributor(s) and sub-importer(s) with such additional details as the Manufacturer/Exporter may reasonably request. All changes to the information so supplied shall be notified in writing by the Importer to the Manufacturer/Exporter as they occur.
5. COMPLIANCE WITH LAW
The Manufacturer/Exporter shall supply the Cigarettes which comply with the requirements or applicable regulations effective in the Territory. The Importer shall obtain all the governmental certification, license, permit or approval necessary to import and distribute the Cigarettes in Territory and shall sell the Cigarettes in the Territory in strict compliance with any and all laws, regulations and other requirements of federal, state, and local governments and their agencies. The Importer shall be responsible for the payments under the MSA with respect to the Cigarettes and shall pay the taxes specified in subsection II(z) of the MSA on the Cigarettes.
6. SALES CONTRACT
6.1 Individual contract
The Importer agrees to purchase the Cigarettes from the Manufacturer/Exporter under individual sales contracts to be agreed upon separately between the Importer and the Manufacturer/Exporter. The Manufacturer/Exporter may accept orders or not, at its option and discretion; provided, however, that such acceptance shall not be unreasonably withheld. The Manufacturer/Exporter will not be held liable for loss or damage caused by its non-acceptance of orders or by any delay in making delivery.
6.2 Prices
All orders from the Importer will be priced at the then current prices of the Manufacturer/Exporter as of the date of order placement. The Manufacturer/Exporter reserves the right to change its prices for the Cigarettes at any time. Provided, that price changes shall not apply to orders for the Cigarettes which have been accepted by the Manufacturer/Exporter.
6.3 Payment
Payment for prices from the Importer to the Manufacturer/Exporter shall be effected by a wire transfer of net cash to the bank account designated by the Manufacturer/Exporter.
6.4 Title
Title to each of the Cigarettes purchased by the Importer shall pass to the Importer in accordance with the terms of F.O.B. (Incoterms 1990) at the port of Tokyo or Yokohama, Japan.
7. DURATION AND TERMINATION
7.1 Duration
This Agreement shall be effective on the day and year first above written and shall continue for an initial period of two years. Thereafter this Agreement shall be automatically renewed upon the same terms and conditions, for successive additional terms of two years each, unless at least ninety (90) days prior to the expiration of the initial or renewal term, as the case may be, one party shall give the other party written notice of its desire to terminate this Agreement upon the expiration of the term then in effect; provided, however, that this Agreement shall not be terminated by either party under this paragraph or any other paragraph hereof unless Manufacturer/Exporter have appointed another signatory to the MSA as exclusive importer for the Territory pursuant to an agreement with like terms insofar as related to the MSA as long as the MSA remains in effect. It is hereby acknowledged that the Original Participating Manufacturers and the Settling States to the MSA are third party beneficiaries of this and any other provision herein relating to the MSA.
7.2 Termination
Each party may terminate without prejudice to any other remedies available to it, this Agreement by written notice given to the other party, effective immediately, in any one of the following events:
a) in the event the other party fails to cure the breach of one or more of its material obligations under the terms of this Agreement within 30 days after the receipt of a notice specifying the nature of the breach and requiring the other party to make it good; or
b) in the event the other party becomes insolvent or bankrupt, or has made an assignment for the benefit of its creditors, or a trustee or receiver of the other party is appointed for all or substantial part of its property, or petition for commencement of bankruptcy, reorganization, dissolution or other similar proceeding has been filed;
c) in the event any change in the substantial interest in the direct or indirect ownership of the other party by sale, transfer or relinquishment, voluntary or involuntary, by operation of law or otherwise, of such interest, which would impair the trustful relationship between the parties hereto.
7.3 Effect of Termination
Upon termination of the Agreement, the terminating party may at its option wholly or partly cancel or immediately fulfill any outstanding order. Neither the Manufacturer/Exporter nor the Importer is, by reason of the termination of this Agreement, liable to the others for compensation, reimbursement of damages on account of expenditures, investments or commitments made in connection therewith or in connection with the establishment, development or maintenance of the business or goodwill of the Manufacturer/Exporter or the Importer or on account of any other cause whatsoever, provided, however, that such termination does not affect the Importer's obligation to pay in full for all the Cigarettes previously sold hereunder to the Importer. It is also explicitly agreed by both parties that should this Agreement be terminated by the written notice by one party upon the expiration of term in effect pursuant to paragraph 7.1 above, neither party shall claim any compensation, reimbursement of damages or otherwise any monetary nature against the other party for any reason except the payment for the price of the Cigarettes, if outstanding as of the date of the termination, which were delivered prior thereto.
8. GENERAL
8.1 Nonassignability
The Importer shall not assign this Agreement or any rights herein conferred on the Importer without the prior written consent of the Manufacturer/Exporter.
8.2 Secrecy
During the term of this Agreement and thereafter, the Importer and the Manufacturer/Exporter shall maintain in strict confidence any and all matters relating to the transactions covered by this Agreement unless authorized otherwise by the other party in writing.
8.3 Governing Law
This Agreement shall be deemed to be a contract made under and shall be governed solely by and construed in accordance with the laws of Japan.
8.4 Arbitration
All disputes, controversies, or differences which may arise among the parties hereto, in connection with this Agreement or for the breach thereof, shall be settled by arbitration in Tokyo, Japan in accordance with the rules of the Japan Commercial Arbitration Association. The award rendered by the arbitrators shall be final and binding upon the parties.
8.5 Entire Agreement
This Agreement contains the entire and only agreement by and among the Manufacturer/Exporter and the Importer with respect to the subject matter hereof.
8.6 Amendment
Except as provided in paragraph 6.2 above hereof no change, modification or amendment of this Agreement shall be binding upon the Manufacturer/Exporter or the Importer unless made in writing and signed by the Manufacturer/Exporter and the Importer.
8.7 Force Majeure
No party shall be responsible to the others for failure to conform to this Agreement for reasons beyond their control; including but not limited to force majeure such as strikes, labor disputes, floods, civil commotion, war, riot, act of God, governmental rules, laws or actions, fires, embargoes, quotas or other unavoidable causes.
8.8 Waiver
No delay or omission or failure to exercise any right or remedy provided for herein shall be deemed to be a waiver thereof or acquiescence in the event giving rise to such right or remedy.
8.9 Notice
Any notice given under this Agreement shall be made by prepaid registered airmail, cable, telex or fax to the address mentioned below or to such address as is notified in writing by the parties hereto. If any one of the parties changes its address, a written notice thereof shall be given to the other party. All notices by registered airmail shall be deemed to have been given on the tenth (10th) business day following the date of posting thereof. All notices by cable or telex, which shall become effective when it arrives at the addressee, shall be followed by a copy thereof sent by prepaid registered airmail:
To: Japan Tobacco Inc. and JT International Corp.
JT Building, 2-l Toranomon 2-chome, Minato-ku, Tokyo, JapanTo: Japan Tobacco International U.S.A., Inc.
2441 205th Street, Suite C-102, Torrance, CA 90501, U.S.A.IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the day and year first above written.
Japan Tobacco Inc.
By: _________________
Hidoshi Fujishiro
Managing Director, Tobacco Business PlanningJT International Corp.
By: _________________
Toshio Kikuma
PresidentJapan Tobacco International U.S.A., Inc.
By: _________________
Masayuki Hamada
President
AMENDMENT NO. 6 TO
MASTER SETTLEMENT AGREEMENTTobacco Exporters International (USA) Ltd. (''TEI'') hereby signs and executes the Master Settlement Agreement (''MSA'').
In addition, notwithstanding sections II(jj) and II(uu) of the MSA, TEI shall have the rights specified in paragraph (4) below, and each of the companies specified in Exhibit A to this Amendment (collectively the ''Foreign Manufacturers/Exporters'') shall not be considered to be a Tobacco Product Manufacturer (and each Foreign Manufacturer/Exporter shall, for the purposes of the Model Statute set forth in Exhibit T to the MSA only, be considered to be a Participating Manufacturer), provided that:
(1) TEI signs the MSA within 90 days after the MSA Execution Date and is bound by such Agreement in all Settling States in which such Agreement binds Original Participating Manufacturers;
(2) On or before March 31, 1999, TEI enters into an agreement (an ''Exclusive Distribution Agreement'') with each of the Foreign Manufacturers/Exporters, such Exclusive Distribution Agreements remain in full force and effect, and all the parties to each respective Exclusive Distribution Agreement fully perform their obligations thereunder. Each Exclusive Distribution Agreement must contain the following terms:
(a) The Foreign Manufacturer/Exporter appoints TEI as its exclusive importer and distributor (other than as set forth in paragraph (D) below) for sale in the territory of any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, American Samoa and the Northern Marianas (the ''Territory'') of any and all Cigarettes which are and will be manufactured by the Foreign Manufacturer/Exporter or any licensee or Affiliate of the Foreign Manufacturer/Exporter under trademarks owned by the Foreign Manufacturer/Exporter (or as to which trademarks the Foreign Manufacturer/Exporter has a manufacturing or license agreement with the trademark owner) and exported for intended sale in the Territory, subject to the terms and conditions appearing in the Exclusive Distribution Agreement (insofar as such terms and conditions are not inconsistent with paragraphs (A) through (F)). The term ''Affiliate'' as used herein shall mean a person who directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with, another person. Solely for the purpose of this definition, the terms ''owns,'' ''is owned'' and ''ownership'' means ownership of an equity interest, or the equivalent thereof, of 50 percent or more, and the term ''person'' means an individual, partnership, committee, association, corporation or any other organization of group of persons.
(b) Other than as specified in paragraph (D) below, the Foreign Manufacturer/Exporter shall not appoint any person other than TEI as an additional importer and distributor for sale of the Cigarettes within the Territory, nor shall the Foreign Manufacturer/Exporter sell or distribute the Cigarettes in the Territory except through TEI or market or advertise the Cigarettes in the Territory.
(c) The Foreign Manufacturer/Exporter shall supply the Cigarettes, which shall comply with the requirements or applicable regulations effective in the Territory. TEI shall obtain all the governmental certification, license, permit or approval necessary to import and distribute the Cigarettes in the Territory and shall sell the Cigarettes in the Territory in strict compliance with any and all laws, regulations and other requirements of federal, state, and local governments and their agencies. TEI shall be responsible for the payments under the MSA with respect to the Cigarettes, shall pay the taxes specified in subsection II(z) of the MSA on the Cigarettes, and shall report the Cigarettes as its shipments in the manner prescribed in subsection II(mm) of the MSA.
(d) The Foreign Manufacturer/Exporter may sell brands of Cigarettes in the Territory through an importer other than TEI if such importer is an Original Participating Manufacturer that will be responsible for the payments under the MSA with respect to such Cigarettes as a result of the provisions of subsections II(mm) of the MSA and that pays the taxes specified in subsection II(z) on such Cigarettes, and provided that the Foreign Manufacturer/Exporter does not market or advertise such Cigarettes in the States.
(e) Each Exclusive Distribution Agreement between each Foreign Manufacturer/Exporter and TEI shall be effective on the date of execution of that agreement (which shall be on or before March 31, 1999) and shall not be terminated by either party to that agreement unless the Foreign Manufacturer/Exporter in question has appointed another signatory to the MSA as importer for the Territory as long as the MSA remains in effect.
(F) The Settling States and the Original Participating Manufacturers are third-party beneficiaries of each Exclusive Distribution Agreement.
(3) TEI does not, after the date TEI becomes a signatory to the MSA, import, sell or distribute Cigarettes manufactured (or purchased for resale in the States) by a Non-Participating Manufacturer;
(4) For purposes of sections IX(i) and IX(d)(1)(B) of the MSA, TEI's 1997 and 1998 Market Share: (A) shall not include Cigarettes manufactured (or purchased for resale in the States) by any Non-Participating Manufacturer; and (B) shall include the Market Share for 1997 and 1998, whichever is in question, of each of the Foreign Manufacturers/Exporters, if any, with respect to brands of Cigarettes as to which TEI has exclusive import and distribution rights in the States with respect to the entire calendar year immediately preceding the year in which the calculation in question is being made (but only so long as the conditions specified in paragraphs (1)-(3) above for each Foreign Manufacturer/Exporter are met);
(5) Notwithstanding paragraph (4), if any Foreign Manufacturer/Exporter becomes an Affiliate of an Original Participating Manufacturer, TEI does not import the Cigarettes of such Foreign Manufacturer/Exporter unless TEI assumes the payment obligations under the MSA of an Original Participating Manufacturer with respect to all Cigarettes manufactured by (or under trademarks owned by or licensed to) such Foreign Manufacturer/Exporter and imported by TEI; and
(6) Notwithstanding paragraph (4), if TEI becomes an Affiliate of an Original Participating Manufacturer, TEI assumes the payment obligations under the MSA of an Original Participating Manufacturer with respect to all Cigarettes shipped by TEI in or to the Territory.
All capitalized terms not otherwise defined shall have the meaning given such terms in the MSA.
Dated: February 11, 1999
New York, N.Y.TOBACCO EXPORTERS INTERNATIONAL
(USA) LTD.
By: __________
Robert S. Pless
Vice President and General Counsel
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