[30 Pa.B. 5619]
[Continued from previous Web Page]
EXHIBIT A TO AMENDMENT NO. 6
Foreign Manufacturer: Foreign Exporter: 1. Rothmans of Pall Mall (International) Tobacco Exporters International Limited Limited Oxford Road Green Lane Industrial Estate Aylesbury Spennymoor Bucks HP21 8SZ Co. Durham DL 16 6YA England England 2. Rothmans of Pall Mall (International) Tobacco Exporters International Limited Limited Oxford Road P. O. Box 41 Aylesbury McMullen Road Bucks HP21 8SZ Darlington England C. Durham DL1 YS England 3. Rothmans Manufacturing (The Tobacco Exporters International Limited Netherlands) b.v. Oxford Road Kerkstraat 27 Aylesbury 6901 AA Zevenaar Bucks HP21 8SZ The Netherlands England 4. Rothmans, Benson & Hedges Inc. Rothmans, Benson & Hedges Inc. 1500 Don Mills Road 1500 Don Mills Road North York North York Ontario M3B 3L1 Ontario M3B 3L1 Canada Canada 5. Cigarette Company of Jamaica Limited Cigarette Company of Jamaica Limited Twickenham Park Twickenham Park P. O. Box 100 P. O. Box 100 Spanish Town Spanish Town Jamaica W.I. Jamaica W.I.
AMENDMENT NO. 7 TO
MASTER SETTLEMENT AGREEMENTLane Limited (''Lane'') hereby signs and executes the Master Settlement Agreement (''MSA'').
In addition, notwithstanding sections II(jj) and II(uu) of the MSA, Lane shall have the rights specified in paragraph (4) below, and the companies specified in Exhibit A to this Amendment (collectively the ''Foreign Manufacturer/Exporter'') shall not be considered to be a Tobacco Product Manufacturer (and the 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) Lane 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, Lane enters into an agreement (an ''Exclusive Distribution Agreement'') with the Foreign Manufacturer/Exporter, such Exclusive Distribution Agreement remains in full force and effect, and all the parties to the Exclusive Distribution Agreement fully perform their obligations thereunder. The Exclusive Distribution Agreement must contain the following terms:
(a) The Foreign Manufacturer/Exporter appoints Lane 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 Lane 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 Lane 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. Lane 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. Lane 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 Lane 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) The Exclusive Distribution Agreement between the Foreign Manufacturer/Exporter and Lane 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 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 the Exclusive Distribution Agreement.
(3) Lane does not, after the date Lane 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, Lane'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 the Foreign Manufacturer/Exporter, if any, with respect to brands of Cigarettes as to which Lane 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 the Foreign Manufacturer/Exporter are met);
(5) Notwithstanding paragraph (4), if the Foreign Manufacturer/Exporter becomes an Affiliate of an Original Participating Manufacturer, Lane does not import the Cigarettes of such Foreign Manufacturer/Exporter unless Lane 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) the Foreign Manufacturer/Exporter and imported by Lane; and
(6) Notwithstanding paragraph (4), if Lane becomes an Affiliate of an Original Participating Manufacturer, Lane assumes the payment obligations under the MSA of an Original Participating Manufacturer with respect to all Cigarettes shipped by Lane 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.LANE LIMITED
By: __________
Robert S. Pless
Assistant Secretary and General Counsel
EXHIBIT A TO AMENDMENT NO. 7
Foreign Manufacturer: Foreign Exporter: 1. Koninklijke Theodorus Rothmans International Niemeyer B. V. Tobacco Products 43 Paterswoldseweg (Export) B. V. P. O. Box 41 De Boelelaan 32 9700 AA Groningen 1083 HJ Amsterdam The Netherlands The Netherlands
AMENDMENT NO. 8 TO
MASTER SETTLEMENT AGREEMENTWHEREAS, Lignum-2, Inc. (''Lignum'') owns the trademark to a group of cigarette brands (the Rave brands) which are currently manufactured outside the United States and then imported by Lignum for sale in the United States. Lignum also imports and sells in the United States other brands (the Sampoerna brands) which are owned and manufactured by a foreign manufacturer, PT Hanjaya Mandala Sampoerna Tbk (''Sampoerna'') and/or its subsidiaries. In practice, Lignum has been the exclusive importer and first purchaser for resale in the United States of Sampoerna brands;
Lignum hereby signs and executes the Master Settlement Agreement (''MSA'').
In addition, notwithstanding sections II(jj) and II(uu) of the MSA, Sampoerna shall not be considered to be a Tobacco Product Manufacturer (and shall, for the purposes of the Model Statute set forth in Exhibit T to the MSA only, be considered to be a Participating Manufacturer) and Lignum shall have the rights specified in paragraph (4) below, in the event that:
(1) Lignum 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, Lignum enters into an agreement with Sampoerna (an ''Exclusive Distribution Agreement''), such Exclusive Distribution Agreement remains in full force and effect, and both parties thereto fully perform their obligations thereunder. The Exclusive Distribution Agreement must contain the following terms:
(A) Sampoerna appoints Lignum 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 which are and will be manufactured by Sampoerna or any licensee or Affiliate of Sampoerna under trademarks owned by Sampoerna and exported for intended sale in the Territory, subject to the terms and conditions appearing in the Exclusive Distribution Agreement (so long as such terms and conditions are not inconsistent with paragraphs (A) through (E)). 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'' 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.
(B) Sampoerna shall not appoint any person other than Lignum as an additional importer and distributor for sale of the Cigarettes within the Territory, nor shall Sampoerna sell or distribute the Cigarettes in the Territory except through Lignum or market or advertise the Cigarettes in the Territory.
(C) Sampoerna shall supply the Cigarettes, which shall comply with the requirements or applicable regulations effective in the Territory. Lignum 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. Lignum 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 Exclusive Distribution Agreement between Sampoerna and Lignum 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 the Exclusive Distribution Agreement as long as the MSA remains in effect unless (a) Sampoerna has appointed another signatory to the MSA as importer for the Territory, or (b) Sampoerna ceases manufacturing and exporting Cigarettes for sale in the Territory, and Sampoerna does not manufacture and export Cigarettes for sale in the Territory.
(E) The Settling States and the Original Participating Manufacturers are third-party beneficiaries of the Exclusive Distribution Agreement.
(3) Lignum does not, after the date Lignum becomes a signatory to the MSA, 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 MSA, Lignum'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 Sampoerna (but only so long as the conditions specified in paragraphs (1)-(3) above are met).
All capitalized terms not otherwise defined shall have the meaning given such terms in the MSA.
Dated: February 11, 1999
San Leandro, CaliforniaLIGNUM-2, INC.
By: __________
Kenneth J. Irinaga
President
AMENDMENT NO. 9 TO
THE MASTER SETTLEMENT AGREEMENTWHEREAS, Top Tobacco, L.P. (''Top Tobacco'') desires to execute the Master Settlement Agreement (''MSA'') among the Settling States and certain Tobacco Product Manufacturers, and the Settling States and such Tobacco Product Manufacturers desire that Top Tobacco execute the MSA;
WHEREAS, the MSA contains provisions necessitating the determination of Top Tobacco's 1997 and 1998 Market Share;
WHEREAS, Top Tobacco manufactures ''roll your own'' tobacco, on which federal excise taxes were not collected in 1997 or 1998 and will not be collected in 1999;
WHEREAS, Top Tobacco has audited records of its volume of sales of Tobacco Products during 1997 and 1998 only on the basis of fiscal years beginning on November 1 running through October 31 of the subsequent year;
IT IS THEREFORE AGREED THAT,
Top Tobacco hereby signs and executes the Master Settlement Agreement subject to the following:
(a) For purposes of section IX(i) of the MSA, the greater of (1) Top Tobacco's 1998 Market Share or (2) 125 percent of Top Tobacco's 1997 Market Share shall be Top Tobacco's 1998 Market Share. Top Tobacco's 1998 Market Share shall be determined by dividing (and expressing as a percentage): (1) 125 percent of the audited number of individual Cigarettes sold by Top Tobacco in the fifty United States, the District of Columbia and Puerto Rico during Top Tobacco's fiscal year 1997 (i.e., November 1, 1997 through October 31, 1998); by (2) the total number of individual Cigarettes sold in the fifty United States, the District of Columbia and Puerto Rico during calendar year 1998, as measured in the manner described in section II(z) of the MSA. For purposes of these calculations, and pursuant to section II(z) of the MSA, 0.09 ounces of ''roll your own'' tobacco shall constitute one individual Cigarette. Top Tobacco hereby represents and warrants that 125 percent of the audited number of individual Cigarettes sold by Top Tobacco in the fifty United States, the District of Columbia and Puerto Rico during Top Tobacco's fiscal year 1997 does not exceed the number of individual Cigarettes sold by Top Tobacco in the fifty United States, the District of Columbia and Puerto Rico during calendar year 1998 (based on the best available information).
(b) For purposes of section IX(d)(1) of the MSA, Top Tobacco's 1997 Market Share shall be determined by dividing (and expressing as a percentage): (1) the audited number of individual Cigarettes sold by Top Tobacco in the fifty United States, the District of Columbia and Puerto Rico during Top Tobacco's fiscal year 1997 (i.e., November 1, 1997 through October 31, 1998); by (2) the total number of individual Cigarettes sold in the fifty United States, the District of Columbia and Puerto Rico during calendar year 1997, as measured in the manner described in section II(z) of the MSA. For purposes of these calculations, and pursuant to section II(z) of the MSA, 0.0325 ounces of ''roll your own'' tobacco shall constitute one individual Cigarette.
(c) Top Tobacco represents and warrants that it will obtain audited records of its sales of Tobacco Products during calendar year 1999. Top Tobacco's 1999 Market Share shall be determined by dividing (and expressing as a percentage): (1) the audited number of individual Cigarettes sold by Top Tobacco in the fifty United States, the District of Columbia and Puerto Rico during calendar year 1999; by (2) the total number of individual Cigarettes sold in the fifty United States, the District of Columbia and Puerto Rico during calendar year 1999, as measured in the manner described in section II(z) of the MSA. Pursuant to section II(z) of the MSA: 0.09 ounces of ''roll your own'' tobacco shall constitute one individual Cigarette when performing these calculations for purposes of section IX(j) of the MSA; and 0.0325 ounces of ''roll your own'' tobacco shall constitute one individual Cigarette when performing these calculations for purposes of section IX(d)(1) of the MSA.
(d) Pursuant to section II(z) of the MSA, bulk sales of tobacco by Top Tobacco to another Tobacco Product Manufacturer that is to be used by such other Tobacco Product Manufacturer in manufacturing Cigarettes intended for sale to consumers (whether directly or through a retailer, distributor or other intermediary or intermediaries) will not be included either: (1) in the audited number of individual Cigarettes sold by Top Tobacco in the fifty United States, the District of Columbia and Puerto Rico during Top Tobacco's fiscal year 1997 (i.e., November 1, 1997 through October 31, 1998); or (2) in calculating Top Tobacco's Market Share for any year.
All capitalized terms not otherwise defined have the meaning given such terms in the MSA.
Dated: New York, New York
February 10, 1999TOP TOBACCO, L.P.
By: __________
Seth I. Gold, Executive V.P.
AMENDMENT NO. 10 TO
MASTER SETTLEMENT AGREEMENT1. Notwithstanding section II(ii) of the Master Settlement Agreement (''MSA''), the term Outdoor Advertising does not mean the current signs on the outside of Sherman's 1400 Broadway N.Y.C. Ltd.'s and/or its Affiliates'' (''Sherman's 1400'') retail establishment at 42nd Street and 5th Avenue in New York City (''Nat Sherman's Retail Establishment''), or any replacement signs outside Nat Sherman's Retail Establishment in so far as they are of a similar nature, size, and wording.
2. Notwithstanding sections II(i) of the MSA, neither the phrase ''Nat Sherman'' nor the phrase ''Nat Sherman Tobacconist to the World'' (collectively ''Nat Sherman'') shall be considered a Brand Name; provided however:
a. Sherman's 1400 does not manufacture, make, market, distribute, offer, sell, license, or import any brand of Cigarettes that use ''Nat Sherman'' to identify that specific brand of Cigarettes as its brand name; and
b. nothing in this paragraph shall create an exception to the prohibitions contained in section III (a) of the MSA; and
c. nothing in this paragraph shall allow Sherman's 1400 to engage in Outdoor Advertising except as provided in paragraph 1 above.
3. If in the future Sherman's 1400 is sold or transferred to a person or entity outside of the Sherman family, or the name ''Nat Sherman'' is licensed to a person or entity outside of the Sherman family, then paragraph 2 above shall be inapplicable unless the size of the name ''Nat Sherman'' contained on any Tobacco Product package is less than the size of any other print on the package, but in no event shall the size of the name ''Nat Sherman'' be in excess of 5/16th of an inch in height.
AMENDMENT NO. 11 TO
MASTER SETTLEMENT AGREEMENTKing Maker Marketing, Inc., (''King Maker'') hereby signs and executes the Master Settlement Agreement (''MSA'').
In addition, notwithstanding sections II(jj) and II(uu) of the MSA, King Maker shall have the rights specified in paragraph (4) below and ITC Limited, India (''ITC'') shall not be considered to be a Tobacco Product Manufacturer (and ITC 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) King Maker 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, King Maker enters into an agreement (an ''Exclusive Distribution Agreement'') with ITC, such Exclusive Distribution Agreement remains in full force and effect, and both parties to the Exclusive Distribution Agreement fully perform their obligations thereunder. The Exclusive Distribution Agreement must contain the following terms:
(a) ITC appoints King Maker 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 which are and will be manufactured by ITC or any licensee or Affiliate of ITC under trademarks owned by ITC 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 (E)). 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'' 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.
(b) ITC shall not appoint any person other than King Maker as an additional importer and distributor for sale of the Cigarettes within the Territory, nor shall ITC sell or distribute the Cigarettes in the Territory except through King Maker or market or advertise the Cigarettes in the Territory except through King Maker.
(c) ITC shall supply the Cigarettes, which shall comply with the requirements or applicable regulations effective in the Territory. King Maker 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. King Maker 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 Exclusive Distribution Agreement between ITC and King Maker 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 as long as the MSA remains in effect unless (a) ITC has appointed another signatory to the MSA as importer for the Territory or (b) ITC ceases manufacturing and exporting Cigarettes bearing trademarks owned by ITC for sale in the Territory, and ITC does not manufacture and export Cigarettes bearing trademarks owned by ITC for sale in the Territory.
(e) The Settling States and the Original Participating Manufacturers are third-party beneficiaries of those provisions of the Exclusive Distribution Agreement relating to the MSA.
(3) King Maker does not, after the date King Maker becomes a signatory to the MSA, 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 MSA, King Maker'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 ITC, if any, with respect to brands of Cigarettes as to which King Maker 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 ITC are met).
All capitalized terms not otherwise defined shall have the meaning given such terms in the MSA.
Dated: February 11, 1999
New York, N.Y.KING MAKER MARKETING, INC.
By: __________
Mark Finkle, President
AMENDMENT NO. 12 TO
THE MASTER SETTLEMENT AGREEMENTSection 5 of Exhibit U of the Master Settlement Agreement is hereby amended to read as follows:
Section 5
Within 45 days after receiving the itemized requests for funds from the Settling States, the Allocation Committee will prepare a preliminary decision allocating the Strategic Contribution Fund payments among the Settling States that submitted itemized requests for funds. All Allocation Committee decisions must be by majority vote. Each Settling State will have 45 days to submit comments on or objections to the draft decision. The Allocation Committee will issue a final decision allocating the Strategic Contribution Fund payments within 30 days.
AMENDMENT NO. 13 TO
THE MASTER SETTLEMENT AGREEMENTSection 6 of Section B of Exhibit J of the Master Settlement Agreement is hereby amended to read as follows:
Section 6
The Fund shall be managed jointly by the following entities and employees of NAAG: the Executive Committee, the Executive Director and the Controller. The Fund shall be managed pursuant to the written investment policy statement established and maintained by NAAG. The Fund shall be regularly reported on NAAG financial statements and subject to annual audit.
[SIGNATURES OMITTED]
AMENDMENT NO. 14 TO
THE MASTER SETTLEMENT AGREEMENTSection XVII of the Master Settlement Agreement is hereby amended by deleting all of subsections XVII(a), XVII(b) and XVII(c), which are hereby void and of no further force and effect, and substituting in place of such subsections the following:
(a) No later than the fifth Business Day after this Amendment No. 14 to the Agreement has been executed by all of the Settling States and all of the Original Participating Manufacturers, each Original Participating Manufacturer shall severally pay its Relative Market Share of $150,000,000 to NAAG. The payment to be made by each Original Participating Manufacturer pursuant to this subsection (a) shall be paid separately and apart from any other amounts due pursuant to this Agreement, shall be subject to no adjustments, reductions, or offsets, and shall be paid to an account (the ''Costs and Fees Account'') previously established by NAAG at a federally or State chartered financial institution to be designated by the President of NAAG (with notice of such designation and account information to be provided to the Original Participating Manufacturers by NAAG no later than the second Business Day after this Amendment No. 14 to the Agreement has been executed by all of the Settling States and all of the Original Participating Manufacturers). The amounts paid pursuant to this subsection (a) shall be used by the Attorneys General of the Settling States, pursuant to procedures and guidelines established by such Attorneys General through NAAG (as such procedures and guidelines may be supplemented, interpreted and applied by a committee of three Attorneys General (the ''Review Committee'') selected pursuant to such procedures), as follows:
(1) to reimburse, with respect to any Settling State in which the Court has approved this Agreement and the Consent Decree, the following ''Governmental Entities'': (A) the office of the Attorney General of such Settling State; (B) the office of the governmental prosecuting authority for any political subdivision of such Settling State with a lawsuit pending against any Participating Manufacturer as of July 1, 1998 (as identified in Exhibit N) that has released such Settling State and such Participating Manufacturer(s) from any and all Released Claims (a ''Litigating Political Subdivision''); and (C) other appropriate agencies of such Settling State and such Litigating Political Subdivision, for reasonable costs and expenses incurred in connection with the litigation or resolution of claims asserted by or against the Participating Manufacturers in the actions set forth in Exhibits D, M and N; provided that such costs and expenses are of the same nature as costs and expenses for which the Original Participating Manufacturers would reimburse their own counsel or agents (but not including costs and expenses relating to lobbying activities);
(2) to pay the Governmental Entities in any Settling State in which State-Specific Finality has occurred an amount sufficient to compensate such Governmental Entities for time reasonably expended by attorneys and paralegals employed in such offices in connection with the litigation or resolution of claims asserted against or by the Participating Manufacturers in the actions identified in Exhibits D, M and N (but not including time relating to lobbying activities), such amount to be calculated based upon hourly rates equal to the market rate in such Settling State for private attorneys and paralegals of equivalent experience and seniority; and
(3) as otherwise directed by the Attorneys General of the Settling States, acting through NAAG (but not including the reimbursement or payment of costs, expenses or time relating to lobbying activities).
(b) Each Original Participating Manufacturer shall, in addition to the payment it makes pursuant to subsection (a), severally pay its Relative Market Share of:
(1) the reasonable fees and reasonable costs and expenses incurred by any consultant or accounting firm retained by the Review Committee, acting through NAAG, in connection with the review, reimbursement and/or payment of costs, expenses and attorney and paralegal time for which the Governmental Entities seek reimbursement or payment pursuant to subsection (a)(1) or (a)(2); and
(2) the reasonable costs and expenses incurred by the three members of the Review Committee in connection with the review, reimbursement and/or payment of costs, expenses and attorney and paralegal time for which the Governmental Entities seek reimbursement or payment pursuant to subsection (a)(1) or (a)(2).
Provided, however, that all amounts to be paid pursuant to this subsection (b) shall be subject to an aggregate cap of $300,000, and shall be paid promptly following submission by the Review Committee to the Original Participating Manufacturers of a statement setting forth the costs, expenses and fees for which payment is sought (but in no event shall such statements be submitted more frequently than once per month).
(c) (1) Effective immediately upon deposit in the Costs and Fees Account of the $150,000,000 referred to in subsection (a), each Settling State (on behalf of itself and all Releasing Parties and all Governmental Entities in such Settling State, including, without limitation, any Litigating Political Subdivisions in such Settling State) absolutely and unconditionally releases and forever discharges the Original Participating Manufacturers and all other Released Parties from the following ''Cost and Fee Claims'': any and all claims, demands, actions, suits, causes of action, damages (whenever incurred), liabilities of any nature including civil penalties and punitive damages, as well as costs, expenses and attorneys fees, known or unknown, suspected or unsuspected, accrued or unaccrued, whether legal, equitable or statutory, that such Settling State, Releasing Parties and Governmental Entities directly, indirectly, derivatively or in any other capacity ever had (including, without limitation, pursuant to subsections XVII(a), (b) or (c) of this Agreement prior to this Amendment No. 14), now have, or hereafter can, shall or may have with respect to or arising out of costs and expenses incurred by any such Settling State, Releasing Party or Governmental Entity, or time expended by attorneys and paralegals employed in the offices of any such Settling State, Releasing Party or Governmental Entity, in connection with the litigation or resolution of claims asserted (or that could have been asserted) by or against the Participating Manufacturers in the actions identified in Exhibits D, M and N. Each Settling State (on behalf of itself and all Releasing Parties and all Governmental Entities in such Settling State, including, without limitation, any Litigating Political Subdivisions in such Settling State) further covenants and agrees that after the deposit in the Costs and Fees Account of the $150,000,000 referred to in subsection (a) neither it nor any such Releasing Party or Governmental Entity shall sue or otherwise seek to recover from any Original Participating Manufacturer or any other Released Party based, in whole or in part, upon any Cost and Fee Claim, and further agrees that such covenant and agreement shall be a complete defense to any such action, claim or proceeding.
(2) Notwithstanding any provision of law, statutory or otherwise, which provides that a general release does not extend to claims which the creditor does not know or suspect to exist in its favor at the time of executing the release, which if known by it must have materially affected its settlement with the debtor, the release set forth in this section XVII(c) releases all Cost and Fee Claims against the Original Participating Manufacturers and all other Released Parties, whether known or unknown, foreseen or unforeseen, suspected or unsuspected, that the Settling States, Releasing Parties and Governmental Entities (including, without limitation, Litigating Political Subdivisions) may have against the Original Participating Manufacturers or any other Released Parties, and the Settling States (on behalf of themselves and the Releasing Parties and Governmental Entities) understand and acknowledge the significance and consequences of waiver of any such provision and hereby assume full responsibility for any injuries, damages or losses that the Settling States, Releasing Parties or Governmental Entities may incur with respect to or arising out of Cost and Fee Claims.
[SIGNATURES OMITTED]
[Pa.B. Doc. No. 00-1899. Filed for public inspection October 27, 2000, 9:00 a.m.]
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