[30 Pa.B. 5619]
(o) Severability.
(1) Sections VI, VII, IX, X, XI, XII, XIII, XIV, XVI, XVIII(b), (c), (d), (e), (f), (g), (h), (o), (p), (r), (s), (u), (w), (z), (bb), (dd), and Exhibits A, B, and E hereof (''Nonseverable Provisions'') are not severable, except to the extent that severance of section VI is permitted by Settling States pursuant to subsection VI(i) hereof. The remaining terms of this Agreement are severable, as set forth herein.
(2) If a court materially modifies, renders unenforceable, or finds to be unlawful any of the Nonseverable Provisions, the NAAG executive committee shall select a team of Attorneys General (the ''Negotiating Team'') to attempt to negotiate an equivalent or comparable substitute term or other appropriate credit or adjustment (a ''Substitute Term'') with the Original Participating Manufacturers. In the event that the court referred to in the preceding sentence is located in a Settling State, the Negotiating Team shall include the Attorney General of such Settling State. The Original Participating Manufacturers shall have no obligation to agree to any Substitute Term. If any Original Participating Manufacturer does not agree to a Substitute Term, this Agreement shall be terminated in all Settling States affected by the court's ruling. The Negotiating Team shall submit any proposed Substitute Term negotiated by the Negotiating Team and agreed to by all of the Original Participating Manufacturers to the Attorneys General of all of the affected Settling States for their approval. If any affected Settling State does not approve the proposed Substitute Term, this Agreement in such Settling State shall be terminated.
(3) If a court materially modifies, renders unenforceable, or finds to be unlawful any term of this Agreement other than a Nonseverable Provision:
(A) The remaining terms of this Agreement shall remain in full force and effect.
(B) Each Settling State whose rights or obligations under this Agreement are affected by the court's decision in question (the ''Affected Settling State'') and the Participating Manufacturers agree to negotiate in good faith a Substitute Term. Any agreement on a Substitute Term reached between the Participating Manufacturers and the Affected Settling State shall not modify or amend the terms of this Agreement with regard to any other Settling State.
(C) If the Affected Settling State and the Participating Manufacturers are unable to agree on a Substitute Term, then they will submit the issue to non-binding mediation. If mediation fails to produce agreement to a Substitute Term, then that term shall be severed and the remainder of this Agreement shall remain in full force and effect.
(4) If a court materially modifies, renders unenforceable, or finds to be unlawful any portion of any provision of this Agreement, the remaining portions of such provision shall be unenforceable with respect to the affected Settling State unless a Substitute Term is arrived at pursuant to subsection (o)(2) or (o)(3) hereof, whichever is applicable.
(p) Intended Beneficiaries. No portion of this Agreement shall provide any rights to, or be enforceable by, any person or entity that is not a Settling State or a Released Party. No Settling State may assign or otherwise convey any right to enforce any provision of this Agreement.
(q) Counterparts. This Agreement may be executed in counterparts. Facsimile or photocopied signatures shall be considered as valid signatures as of the date affixed, although the original signature pages shall thereafter be appended.
(r) Applicability. The obligations and duties of each Participating Manufacturer set forth herein are applicable only to actions taken (or omitted to be taken) within the States. This subsection (r) shall not be construed as extending the territorial scope of any obligation or duty set forth herein whose scope is otherwise limited by the terms hereof.
(s) Preservation of Privilege. Nothing contained in this Agreement or any Consent Decree, and no act required to be performed pursuant to this Agreement or any Consent Decree, is intended to constitute, cause or effect any waiver (in whole or in part) of any attorney-client privilege, work product protection or common interest/joint defense privilege, and each Settling State and each Participating Manufacturer agrees that it shall not make or cause to be made in any forum any assertion to the contrary.
(t) Non-Release. Except as otherwise specifically provided in this Agreement, nothing in this Agreement shall limit, prejudice or otherwise interfere with the rights of any Settling State or any Participating Manufacturer to pursue any and all rights and remedies it may have against any Non-Participating Manufacturer or other non-Released Party.
(u) Termination.
(1) Unless otherwise agreed to by each of the Original Participating Manufacturers and the Settling State in question, in the event that (A) State-Specific Finality in a Settling State does not occur in such Settling State on or before December 31, 2001; or (B) this Agreement or the Consent Decree has been disapproved by the Court (or, in the event of an appeal from or review of a decision of the Court to approve this Agreement and the Consent Decree, by the court hearing such appeal or conducting such review), and the time to Appeal from such disapproval has expired, or, in the event of an Appeal from such disapproval, the Appeal has been dismissed or the disapproval has been affirmed by the court of last resort to which such Appeal has been taken and such dismissal or disapproval has become no longer subject to further Appeal (including, without limitation, review by the United States Supreme Court); or (C) this Agreement is terminated in a Settling State for whatever reason (including, but not limited to, pursuant to subsection XVIII(o) of this Agreement), then this Agreement and all of its terms (except for the non-admissibility provisions hereof, which shall continue in full force and effect) shall be canceled and terminated with respect to such Settling State, and it and all orders issued by the courts in such Settling State pursuant hereto shall become null and void and of no effect.
(2) If this Agreement is terminated with respect to a Settling State for whatever reason, then (A) the applicable statute of limitation or any similar time requirement shall be tolled from the date such Settling State signed this Agreement until the later of the time permitted by applicable law or for one year from the date of such termination, with the effect that the parties shall be in the same position with respect to the statute of limitation as they were at the time such Settling State filed its action, and (B) the parties shall jointly move the Court for an order reinstating the actions and claims dismissed pursuant to sections XIII and XIV hereof, with the effect that the parties shall be in the same position with respect to those actions and claims as they were at the time the action or claim was stayed or dismissed.
(v) Freedom of Information Requests. Upon the occurrence of State-Specific Finality in a Settling State, each Participating Manufacturer will withdraw in writing any and all requests for information, administrative applications, and proceedings brought or caused to be brought by such Participating Manufacturer pursuant to such Settling State's freedom of information law relating to the subject matter of the lawsuits identified in Exhibit D.
(w) Bankruptcy. The following provisions shall apply if a Participating Manufacturer both enters Bankruptcy and at any time thereafter is not timely performing its financial obligations as required under this Agreement:
(1) In the event that both a number of Settling States equal to at least 75% of the total number of Settling States and Settling States having aggregate Allocable Shares equal to at least 75% of the total aggregate Allocable Shares assigned to all Settling States deem (by written notice to the Participating Manufacturers other than the bankrupt Participating Manufacturer) that the financial obligations of this Agreement have been terminated and rendered null and void as to such bankrupt Participating Manufacturer (except as provided in subsection (A) below) due to a material breach by such Participating Manufacturer, whereupon, with respect to all Settling States:
(A) all agreements, all concessions, all reductions of Releasing Parties' Claims, and all releases and covenants not to sue, contained in this Agreement shall be null and void as to such Participating Manufacturer. Provided, however, that (i) all reductions of Releasing Parties' Claims, and all releases and covenants not to sue, contained in this Agreement shall remain in full force and effect as to all persons or entities (other than the bankrupt Participating Manufacturer itself or any person or entity that, as a result of the Bankruptcy, obtains domestic tobacco assets of such Participating Manufacturer (unless such person or entity is itself a Participating Manufacturer)) who (but for the first sentence of this subsection (A)) would otherwise be Released Parties by virtue of their relationship with the bankrupt Participating Manufacturer; and (ii) in the event a Settling State asserts any Released Claim against a bankrupt Participating Manufacturer after the termination of this Agreement with respect to such Participating Manufacturer as described in this subsection (1) and receives a judgment, settlement or distribution arising from such Released Claim, then the amount of any payments such Settling State has previously received from such Participating Manufacturer under this Agreement shall be applied against the amount of any such judgment, settlement or distribution (provided that in no event shall such Settling State be required to refund any payments previously received from such Participating Manufacturer pursuant to this Agreement);
(B) the Settling States shall have the right to assert any and all claims against such Participating Manufacturer in the Bankruptcy or otherwise without regard to any limits otherwise provided in this Agreement (subject to any and all defenses against such claims);
(C) the Settling States may exercise all rights provided under the federal Bankruptcy Code (or other applicable bankruptcy law) with respect to their Claims against such Participating Manufacturer, including the right to initiate and complete police and regulatory actions against such Participating Manufacturer pursuant to the exceptions to the automatic stay set forth in section 362(b) of the Bankruptcy Code (provided, however, that such Participating Manufacturer may contest whether the Settling State's action constitutes a police and regulatory action); and
(D) to the extent that any Settling State is pursuing a police and regulatory action against such Participating Manufacturer as described in subsection (1)(C), such Participating Manufacturer shall not request or support a request that the Bankruptcy court utilize the authority provided under section 105 of the Bankruptcy Code to impose a discretionary stay on the Settling State's action. The Participating Manufacturers further agree that they will not request, seek or support relief from the terms of this Agreement in any proceeding before any court of law (including the federal bankruptcy courts) or an administrative agency or through legislative action, including (without limitation) by way of joinder in or consent to or acquiescence in any such pleading or instrument filed by another.
(2) Whether or not the Settling States exercise the option set forth in subsection (1) (and whether or not such option, if exercised, is valid and enforceable):
(A) In the event that the bankrupt Participating Manufacturer is an Original Participating Manufacturer, such Participating Manufacturer shall continue to be treated as an Original Participating Manufacturer for all purposes under this Agreement except (i) such Participating Manufacturer shall be treated as a Non-Participating Manufacturer (and not as an Original Participating Manufacturer or Participating Manufacturer) for all purposes with respect to subsections IX(d)(1), IX(d)(2) and IX(d)(3) (including, but not limited to, that the Market Share of such Participating Manufacturer shall not be included in Base Aggregate Participating Manufacturer Market Share or Actual Aggregate Participating Manufacturer Market Share, and that such Participating Manufacturer's volume shall not be included for any purpose under subsection IX(d)(1)(D)); (ii) such Participating Manufacturer's Market Share shall not be included as that of a Participating Manufacturer for the purpose of determining whether the trigger percentage specified in subsection IX(e) has been achieved (provided that such Participating Manufacturer shall be treated as an Original Participating Manufacturer for all other purposes with respect to such subsection); (iii) for purposes of subsection (B)(iii) of Exhibit E, such Participating Manufacturer shall continue to be treated as an Original Participating Manufacturer, but its operating income shall be recalculated by the Independent Auditor to reflect what such income would have been had such Participating Manufacturer made the payments that would have been due under this Agreement but for the Bankruptcy; (iv) for purposes of subsection XVIII(c), such Participating Manufacturer shall not be treated as an Original Participating Manufacturer or as a Participating Manufacturer to the extent that after entry into Bankruptcy it becomes the acquiror or transferee of Cigarette brands, Brand Names, Cigarette product formulas or Cigarette businesses of any Participating Manufacturer (provided that such Participating Manufacturer shall continue to be treated as an Original Participating Manufacturer and Participating Manufacturer for all other purposes under such subsection); and (v) as to any action that by the express terms of this Agreement requires the unanimous agreement of all Original Participating Manufacturers.
(B) In the event that the bankrupt Participating Manufacturer is a Subsequent Participating Manufacturer, such Participating Manufacturer shall continue to be treated as a Subsequent Participating Manufacturer for all purposes under this Agreement except (i) such Participating Manufacturer shall be treated as a Non-Participating Manufacturer (and not as a Subsequent Participating Manufacturer or Participating Manufacturer) for all purposes with respect to subsections IX(d)(1), (d)(2) and (d)(4) (including, but not limited to, that the Market Share of such Participating Manufacturer shall not be included in Base Aggregate Participating Manufacturer Market Share or Actual Aggregate Participating Manufacturer Market Share, and that such Participating Manufacturer's volume shall not be included for any purpose under subsection IX(d)(1)(D)); (ii) such Participating Manufacturer's Market Share shall not be included as that of a Participating Manufacturer for the purpose of determining whether the trigger percentage specified in subsection IX(e) has been achieved (provided that such Participating Manufacturer shall be treated as a Subsequent Participating Manufacturer for all other purposes with respect to such subsection); and (iii) for purposes of subsection XVIII(c), such Participating Manufacturer shall not be treated as a Subsequent Participating Manufacturer or as a Participating Manufacturer to the extent that after entry into Bankruptcy it becomes the acquiror or transferee of Cigarette brands, Brand Names, Cigarette product formulas or Cigarette businesses of any Participating Manufacturer (provided that such Participating Manufacturer shall continue to be treated as a Subsequent Participating Manufacturer and Participating Manufacturer for all other purposes under such subsection).
(C) Revision of this Agreement pursuant to subsection XVIII(b)(2) shall not be required by virtue of any resolution on an involuntary basis in the Bankruptcy of Claims against the bankrupt Participating Manufacturer.
(x) Notice of Material Transfers. Each Participating Manufacturer shall provide notice to each Settling State at least 20 days before consummating a sale, transfer of title or other disposition, in one transaction or series of related transactions, of assets having a fair market value equal to five percent or more (determined in accordance with United States generally accepted accounting principles) of the consolidated assets of such Participating Manufacturer.
(y) Entire Agreement. This Agreement (together with any agreements expressly contemplated hereby and any other contemporaneous written agreements) embodies the entire agreement and understanding between and among the Settling States and the Participating Manufacturers relating to the subject matter hereof and supersedes (l) all prior agreements and understandings relating to such subject matter, whether written or oral, and (2) all purportedly contemporaneous oral agreements and understandings relating to such subject matter.
(z) Business Days. Any obligation hereunder that, under the terms of this Agreement, is to be performed on a day that is not a Business Day shall be performed on the first Business Day thereafter.
(aa) Subsequent Signatories. With respect to a Tobacco Product Manufacturer that signs this Agreement after the MSA Execution Date, the timing of obligations under this Agreement (other than payment obligations, which shall be governed by subsection II(jj)) shall be negotiated to provide for the institution of such obligations on a schedule not more favorable to such subsequent signatory than that applicable to the Original Participating Manufacturers.
(bb) Decimal Places. Any figure or percentage referred to in this Agreement shall be carried to seven decimal places.
(cc) Regulatory Authority. Nothing in section III of this Agreement is intended to affect the legislative or regulatory authority of any local or State government.
(dd) Successors. In the event that a Participating Manufacturer ceases selling a brand of Tobacco Products in the States that such Participating Manufacturer owned in the States prior to July 1, 1998, and an Affiliate of such Participating Manufacturer thereafter and after the MSA Execution Date intentionally sells such brand in the States, such Affiliate shall be considered to be the successor of such Participating Manufacturer with respect to such brand. Performance by any such successor of the obligations under this Agreement with respect to the sales of such brand shall be subject to court-ordered specific performance.
(ee) Export Packaging. Each Participating Manufacturer shall place a visible indication on each pack of Cigarettes it manufactures for sale outside of the fifty United States and the District of Columbia that distinguishes such pack from packs of Cigarettes it manufactures for sale in the fifty United States and the District of Columbia.
(ff) Actions Within Geographic Boundaries of Settling States. To the extent that any provision of this Agreement expressly prohibits, restricts, or requires any action to be taken ''within'' any Settling State or the Settling States, the relevant prohibition, restriction, or requirement applies within the geographic boundaries of the applicable Settling State or Settling States, including, but not limited to, Indian country or Indian trust land within such geographic boundaries.
(gg) Notice to Affiliates. Each Participating Manufacturer shall give notice of this Agreement to each of its Affiliates.
IN WITNESS WHEREOF, each Settling State and each Participating Manufacturer, through their fully authorized representatives, have agreed to this Agreement.
STATE OF ALABAMA
By: _________________
Bill Pryor
Attorney General
Date: __________
STATE OF ALASKA
By: __________
Bruce M. Botelho
Attorney General
Date: __________
AMERICAN SAMOA
By: __________
Tauese P. Sunia
Governor
Date: __________
By: _________________
Toetagata Albert Mailo
Attorney General
Date: __________
STATE OF ARIZONA
By: __________
Grant Woods
Attorney General
Date: __________
By: __________
John H. Kelley
Director
Arizona Health Care Cost
Containment System
Date: __________
STATE OF ARKANSAS
By: __________
Winston Bryant
Attorney General
Date: __________
STATE OF CALIFORNIA
By: __________
Daniel E. Lungren
Attorney General
Date: __________
By: __________
Kimberly Belshe
Director
California Department of Health Services
Date: __________
STATE OF COLORADO
By: __________
Gale A. Norton
Attorney General
Date: __________
STATE OF CONNECTICUT
By: __________
Richard Blumenthal
Attorney General
Date: __________
STATE OF DELAWARE
By: __________
M. Jane Brady
Attorney General
Date: __________
DISTRICT OF COLUMBIA
By: __________
John M. Ferren
Corporation Counsel
Date: __________
By: __________
Marion Barry, Jr.
Mayor
Date: __________
STATE OF GEORGIA
By: __________
Zell Miller
Governor
Date: __________
By: __________
Thurbert E. Baker
Attorney General
Date: __________
GUAM
By: __________
Carl T.C. Gutierrez
Governor
Date: __________
By: __________
Robert H. Kono
Acting Attorney General
Date: __________
STATE OF HAWAII
By: __________
Margery S. Bronster
Attorney General
Date: __________
STATE OF IDAHO
By: __________
Alan G. Lance
Attorney General
Date: __________
STATE OF ILLINOIS
By: __________
Jim Ryan
Attorney General
Date: __________
STATE OF INDIANA
By: __________
Frank L. O'Bannon
Governor
Date: __________
By: __________
Jeffrey A. Modisett
Attorney General
Date: __________
STATE OF IOWA
By: __________
Tom Miller
Attorney General
Date: __________
STATE OF KANSAS
By: __________
Carla J. Stovall
Attorney General
Date: __________
COMMONWEALTH OF KENTUCKY
By: __________
Albert Benjamin ''Ben'' Chandler III
Attorney General
Date: __________
STATE OF LOUISIANA
By: __________
Richard P. Ieyoub
Attorney General
Date: __________
STATE OF MAINE
By: __________
Andrew Ketterer
Attorney General
Date: __________
STATE OF MARYLAND
By: __________
J. Joseph Curran, Jr.
Attorney General
Date: __________
COMMONWEALTH OF MASSACUSETTS
By: __________
Scott Harshbarger
Attorney General
Date: __________
STATE OF MICHIGAN
By: __________
Frank J. Kelley
Attorney General
Date: __________
STATE OF MISSOURI
By: __________
Jeremiah W. (Jay) Nixon
Attorney General
Date: __________
STATE OF MONTANA
By: __________
Joseph P. Mazurek
Attorney General
Date: __________
STATE OF NEBRASKA
By: __________
Don Stenberg
Attorney General
Date: __________
STATE OF NEVADA
By: __________
Frankie Sue Del Papa
Attorney General
Date: __________
STATE OF NEW HAMPSHIRE
By: __________
Philip T. McLaughlin
Attorney General
Date: __________
STATE OF NEW JERSEY
By: __________
Peter Verniero
Attorney General
Date: __________
STATE OF NEW MEXICO
By: __________
Tom Udall
Attorney General
Date: __________
STATE OF NEW YORK
By: __________
Dennis C. Vacco
Attorney General
Date: __________
STATE OF NORTH CAROLINA
By: __________
Michael F. Easley
Attorney General
Date: __________
STATE OF NORTH DAKOTA
By: __________
Heidi Heitkamp
Attorney General
Date: __________
NORTHERN MARIANA ISLANDS
By: __________
Maya B. Kara
(Acting) Attorney General
Date: __________
STATE OF OHIO
By: __________
Betty D. Montgomery
Attorney General
Date: __________
STATE OF OKLAHOMA
By: __________
W.A. Drew Edmondson
Attorney General
Date: __________
STATE OF OREGON
By: __________
Hardy Myers
Attorney General
Date: __________
COMMONWEALTH OF PENNSYLVANIA
By: __________
Mike Fisher
Attorney General
Date: __________
COMMONWEALTH OF PUERTO RICO
By: __________
José A. Fuentes-Agostini
Attorney General
Date: __________
STATE OF RHODE ISLAND
By: __________
Jeffrey B. Pine
Attorney General
Date: __________
STATE OF SOUTH CAROLINA
By: __________
Charlie Condon
Attorney General
Date: __________
STATE OF SOUTH DAKOTA
By: __________
William J. Janklow
Governor
Date: __________
By: __________
Mark Barnett
Attorney General
Date: __________
STATE OF TENNESSEE
By: __________
John Knox Walkup
Attorney General
Date: __________
STATE OF UTAH
By: __________
Jan Graham
Attorney General
Date: __________
STATE OF VERMONT
By: __________
William H. Sorrell
Attorney General
Date: __________
COMMONWEALTH OF VIRGINIA
By: __________
Mark L. Earley
Attorney General
Date: __________
THE VIRGIN ISLANDS OF THE UNITED STATES
By: __________
Julio A. Brady
Attorney General
Date: __________
STATE OF WASHINGTON
By: __________
Christine O. Gregoire
Attorney General
Date: __________
STATE OF WEST VIRGINIA
By: __________
Darrell V. McGraw Jr.
Attorney General
Date: __________
STATE OF WISCONSIN
By: __________
Tommy G. Thompson
Governor
Date: __________
By: __________
James E. Doyle
Attorney General
Date: __________
STATE OF WYOMING
By: __________
Jim Geringer
Governor
Date: __________
By: __________
Gay Woodhouse
(Acting) Attorney General
Date: __________
PHILIP MORRIS INCORPORATED
By: __________
Martin J. Barrington
General Counsel
Date: __________
By: __________
Meyer G. Koplow
Counsel
Date: __________
R.J. REYNOLDS TOBACCO COMPANY
By: __________
Charles A. Blixt
Executive Vice President and General Counsel
Date: __________
By: __________
Arthur F. Golden
Counsel
Date: __________
BROWN & WILLIAMSON TOBACCO CORPORATION
By: __________
F. Anthony Burke
Vice President and General Counsel
Date: __________
By: __________
Stephen R. Patton
Counsel
Date: __________
LORILLARD TOBACCO COMPANY
By: __________
Ronald S. Milstein
General Counsel
Date: __________
By: __________
Herbert M. Wachtell
Counsel
Date: __________
LIGGETT GROUP INC.
By: __________
Bennett S. LeBow
Director
Date: __________
By: __________
Marc E. Kasowitz
Counsel
Date: __________
COMMONWEALTH BRANDS, INC.
By: __________
Brad Kelley
Chairman of the Board
Date: __________
By: __________
William Jay Hunter, Jr.
Counsel
Date: __________
EXHIBIT A
STATE ALLOCATION PERCENTAGES
| State | Percentage |
|---|
| Alabama | 1.6161308 |
| Alaska | 0.3414187 |
| Arizona | 1.4738845 |
| Arkansas | 0.8280661 |
| California | 12.7639554 |
| Colorado | 1.3708614 |
| Connecticut | 1.8565373 |
| Delaware | 0.3954695 |
| D.C. | 0.6071183 |
| Florida | 0.0000000 |
| Georgia | 2.4544575 |
| Hawaii | 0.6018650 |
| Idaho | 0.3632632 |
| Illinois | 4.6542472 |
| Indiana | 2.0398033 |
| Iowa | 0.8696670 |
| Kansas | 0.8336712 |
| Kentucky | 1.7611586 |
| Louisiana | 2.2553531 |
| Maine | 0.7693505 |
| Maryland | 2.2604570 |
| Massachusetts | 4.0389790 |
| Michigan | 4.3519476 |
| Minnesota | 0.0000000 |
| Mississippi | 0.0000000 |
| Missouri | 2.2746011 |
| Montana | 0.4247591 |
| Nebraska | 0.5949833 |
| Nevada | 0.6099351 |
| New Hampshire | 0.6659340 |
| New Jersey | 3.8669963 |
| New Mexico | 0.5963897 |
| New York | 12.7620310 |
| North Carolina | 2.3322850 |
| North Dakota | 0.3660138 |
| Ohio | 5.0375098 |
| Oklahoma | 1.0361370 |
| Oregon | 1.1476582 |
| Pennsylvania | 5.7468588 |
| Rhode Island | 0.7189054 |
| South Carolina | 1.1763519 |
| South Dakota | 0.3489458 |
| Tennessee | 2.4408945 |
| Texas | 0.0000000 |
| Utah | 0.4448869 |
| Vermont | 0.4111851 |
| Virginia | 2.0447451 |
| Washington | 2.0532582 |
| West Virginia | 0.8864604 |
| Wisconsin | 2.0720390 |
| Wyoming | 0.2483449 |
|
| American Samoa | 0.0152170 |
| N. Mariana Isld. | 0.0084376 |
| Guam | 0.0219371 |
| U.S. Virgin Isld. | 0.0173593 |
| Puerto Rico | 1.1212774 |
|
| Total | 100.0000000 |
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