Agreement Between Abenakie Entreprises/ Choice Tobacco ("Abenakie") - and - The Commissioner of Competition ("Commissioner")

July 3, 2007

(PDF; 137 KB; 7 Pages)

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WHEREAS the Commissioner is responsible for the administration and enforcement of the Competition Act, R.S.C. 1985, c. C-34 (the "Act"), and has commenced an Inquiry pursuant to s. 10 of the Act in regard to cigarettes and other tobacco products ("Tobacco Products") for sale to the public, described as "light" and "mild" and variants thereof, such as, but not limited to, "extra light", "ultra light", "extra mild" and "ultra mild" ("L/M Descriptors") in Canada;

AND WHEREAS Abenakie is engaged in Canada in the manufacture and/or distribution of Tobacco Products bearing L/M Descriptors;

THE PARTIES HEREBY AGREE AS FOLLOWS:

1. Application of this Agreement

   1.1 The provisions of this Agreement are subject to the definitions set forth in Appendix "A."

   1.2 Nothing in this Agreement is intended to modify Abenakie's obligations under the Tobacco Act.

2. Cessation of Use of the L/M Descriptors

   2.1 As of December 3 1,2007, Abenakie will cease using L/M Descriptors on it's Tobacco Products and packaging. A list of Abenakie's Brand Names covered by this Agreement are contained in Appendix "B".

3. Sale of Existing Stock

   3.1 Any Tobacco Products bearing L/M Descriptors may be sold or distributed in Canada by Abenakie, provided they were manufactured and packaged prior to December 3 1,2007.

4. Other Manufacturers and Distributors

   4.1 The Commissioner shall use reasonable best efforts to obtain from other manufacturers and/or distributors in Canada of Tobacco Products, comparable commitments to discontinue their use of L/M Descriptors not later than December, 2007.

5. General

   5.1 This Agreement is entered into without any admission of liability on the part of Abenakie, and it does not constitute a finding of fact or law on any issue as against Abenakie.

   5.2 This Agreement is entered into by Abenakie solely for the purpose of voluntarily cooperating with a request by the Commissioner to discontinue the use of L/M Descriptors and in anticipation of regulatory changes under the Tobacco Act.

   5.3 This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein.

   5.4 This Agreement may be executed in counterpart and by facsimile and each such counterpart shall constitute an original and all of which taken together shall constitute one and the same instrument, dated as of the date set forth below.

6. Modification or Default

   6.1 If Abenakie believes that some modification of this Agreement is justified due to changed circumstances, Abenakie and the Commissioner agree to engage in good faith efforts to resolve the matter.

   6.2 In the event of any dispute between the Parties as to the interpretation or application of this Agreement, including a dispute as to whether there has been a default in the performance of any of the obligations in this Agreement, the Parties agree to first engage in good faith efforts to resolve such dispute, before taking any other steps to resolve the dispute. In the event that Abenakie does not cease use of the UM descriptors in accordance with clause 2.1 of this Agreement, the Commissioner may deliver a notice of default to Abenakie. Abenakie shall have 30days to remedy any default. If the default has not been remedied during such 30day period the Commissioner may, following the expiry of the 30day period, file this Agreement with the Competition Tribunal for registration as a Consent Agreement between the Commissioner and Abenakie, pursuant to s.74.12 of the Act.Abenakie irrevocably consents to the registration of this Agreement as a Consent Agreement in such case and to the filing of the signed consent form which is attached as Appendix "C."

7. Term of this Agreement

   7.1 This Agreement shall remain in force from the date of its signing until such time as regulations pursuant to the Tobacco Actcome into force prohibiting the use of L/M Descriptors in regard to Tobacco Products, andlor their packaging, whereupon this Agreement will terminate automatically.

8. Notice

   8.1 Any notice required to be given pursuant to any terms of this Agreement is valid if given by facsimile transmission or registered mail to:

   1. The Commissioner:

      Sheridan Scott
      Commissioner of Competition
      Competition Bureau Canada
      Place du Portage, Phase 1,
      50 Victoria Street
      Gatineau, Quebec K 1 A 0C9

      Telephone: 819-997-5300
      Facsimile: 819-953-5013

      With copies to:

      Jim Marshall
      Senior Counsel
      Competition Law Division
      Justice Canada
      Place du Portage, Phase I,
      50 Victoria Street
      Gatineau, Quebec K1A 0C9

      Telephone: 819-997-2834
      Facsimile: 819-953-9267

   2. Abenakie:

      Richard O'Bomsawin
      President and Owner
      Abenakie Enterprises/Choice Tobacco
      2425 Chemin Asban
      Odanak, Quebec
      JOG 1HO

      Telephone: 450-568-1001
      Facsimile: 450-568-0303

Dated at Gatineau, Quebec, this 10th day of July, 2007

________________________
Sheridan Scott
Commissioner of Competition

Dated at Odanak, Quebec, this 3rd day of July 2007.

________________________
Richard O'Bomsawin
President and Owner
Abenakie Enterprises/Choice Tobacco

Appendix "A"

Definitions

In accordance with Clause 1.1 of this Agreement, the following definitions shall apply:

A. "Abenakie" means Abenakie Enterprises/Choice Tobacco, a company incorporated under the laws of Canada;

B. "Agreement" means this Agreement as entered into by Abenakie and the Commissioner;

C. "Brand Name" means word(s) used by Abenakie to identify its products to consumers and includes, but is not limited to, trademark names of cigarettes and any words forming part of such trademark names;

D. "Commissioner" means the Commissioner of Competition, appointed pursuant to section 7 of the Act,and authorized representatives of the Commissioner;

E. "L/M Descriptors" means the words "light" and "mild", and combinations and variants thereof such as, but not limited to, "extra light," "ultra light," "extra mild" and "ultra mild" as descriptors on cigarette packages or elsewhere;

F. "Parties" means the Commissioner and Abenakie;

G. "Tobacco Products" means cigarettes, tobacco sticks and fine cut tobacco currently distributed by Abenakie;

Appendix "B"

Abenakie Brand Names

In accordance with Clause 2.1 of this Agreement, the following Abenakie Brand Names are
covered by this Agreement:

Cigarette Products
Advantage Light
Rocky's Light
My Brand Light

Appendix "C"

Consent Form

To: The Competition Tribunal

1. The Commissioner of Competition and Abenakie Enterprises1 Choice Tobacco ("Abenakie")
consent to the filing of an Agreement dated July 3rd, 2007, with the Competition
Tribunal for immediate registration as a consent agreement between the Commissioner of
Competition and Abenakie pursuant to s. 74.12 of the Competition Act.

2. The name and address of the persons in respect of whom the consent agreement is made are:

Commissioner of Competition
50 Victoria Street
Gatineau, Quebec
KIA 0C9

Abenakie Enterprises1 Choice Tobacco
2425 Chemin Asban
Odanak, Quebec
JOG 1HO

Per ______________________
Sheridan Scott
Commissioner of Competition

Per ______________________
Richard O'Bomsawin
President and Owner
Abenakie Enterprises/Choice
Tobacco