nated by it, the intention being that the American Company or its nominees shall be the sole customer of the Imperial Company and of Salmon & Gluckstein, Limited, in the United States, and that the Imperial Company or its nominees shall be the sole customer of the American Company, the Continental Company, and the Cigar Company in the United Kingdom. None of the parties shall sell any tobacco products to any person, firm or company whom they have reason to believe will export the same to the territory in which the seller has agreed not to sell such goods as herein provided. 19. For American goods sold to the Imperial Company or its nominees for sale in the United Kingdom in pursuance of the preceding clause the Imperial Company shall pay the cost of manufacture and packing of such goods (but not including any expenses of advertising and selling) plus ten per cent. (10%), and shall also pay freights, customs charges and duties and for goods of the Imperial Company and of Salmon & Gluckstein, Limited, sold by them to the American Company, the Continental Company or the Cigar Company, for sale within the United States, the American Company, the Continental Company or the Cigar Company, as the case may be, shall pay the cost of the manufacture and packing thereof (but not including any expenses of advertising or selling), plus ten per cent. (10%), and shall also pay freights, customs charges and duties. In all cases of sales under this clause the invoices of the respective vendors shall be final and binding as to cost. The Imperial Company shall be empowered by the American Company and the Continental Company to manufacture their brands within the United Kingdom for sale therein, and the American Company, the Continental Company and the Cigar Company shall be empowered to manufacture the brands of the Imperial Company in the United States for sale therein, and each party shall manufacture the brands of the other party upon recipes and formulae to be supplied by the other. 20. As early as practicable and subject to existing contracts and obligations of the companies manufacturing and selling the cigars and cigarettes hereinafter referred to, the American Com pany, the Continental Company and the Cigar Company will appoint or procure the appointment of the Imperial Company sole agent for the sale within the United Kingdom of Havana and Porto Rico cigars and Havana and Porto Rico cigarettes directly or indirectly controlled by the American Company, the Continental Company and the Cigar Company, and such agency shall be upon the terms of the Imperial Company receiving a net commission of seven and one-half per cent. (72%) upon the Havana and Porto Rico prices, respectively, and being allowed three months' credit for payment of the invoice prices less such seven and one-half per cent. and the Havana and Porto Rico prices charged the Imperial Company, shall, from time to time and at all times, be as low as the prices charged by the American Company, the Continental Company and the Cigar Company, or parties controlled by them, for similar cigars and cigarettes sold to their most-favored customers, subject only to the exception that if at any time the prices of cigars or cigarettes sold to any country not affecting British trade shall be temporarily reduced for the purposes of competition, such local and temporary reduction is not to be taken into account for the purpose of fixing the price of cigars and cigarettes sold to the Imperial Company. If and so far as the control of any other cigar trade not hereinbefore provided for is now possessed or shall be acquired by the American Company, the Continental Company and the Cigar Company, or any of them, a similar agency is to be given to the Imperial Company in respect thereof. The Imperial Company shall not (except to complete any other contract already made) handle or sell any other Havana or Porto Rico cigars and cigarettes than those of the American Company, the Continental Company and the Cigar Company, for which the Imperial Company holds the aforesaid agency, and a similar provision shall apply to any other cigars or cigarettes for which the aforesaid agency may be hereafter granted, and the Imperial Company shall use its best efforts and endeavors to promote and enlarge the sales of all such cigars and cigarettes within the United Kingdom, and provided the Imperial Company maintains a sale of the Havana cigars or cigarettes included in the agency hereinbefore provided for equal to not less than seventy-two per cent. (72%) of the total annual importations into the United Kingdom, duty paid, of cigars and cigarettes made in Cuba, the American Company, and the Cigar Company, and the Continental Company shall not be entitled to call in question the efforts and endeavors of the Imperial Company hereinbefore required: Provided always, That the percentage to be maintained by the Imperial Company shall be ascertained upon the average of three years. The Imperial Company shall sell the cigars and cigarettes from time to time falling within the said agency at prices not exceeding their cost to the Imperial Company with the addition of freights, railway charges, packages, customs duties and customs charges, and the said commission of seven and one-half per cent. The American Company, the Continental Company and the Cigar Company will not knowingly supply cigars or cigarettes to be trans-shipped or indirectly imported into the United Kingdom. The aforesaid proportion of 72 per cent. has been based upon the belief and assumption that the parties hereto of the second, third, fourth and fifth parts or some or one of them control or will shortly control not less than 80 per cent. of the aforesaid annual importation, and if it shall hereafter appear that the proportion thereof actually controlled by the said parties is less than 80 per cent. then in such case the said proportion of 72 per cent. shall be correspondingly reduced. 21. The Imperial Company shall cause Salmon & Gluckstein, Limited, and A. I. Jones & Company, Limited, and any other companies, firms or persons from time to time controlled by it (subject to the performance of any prior contracts), to purchase their cigars of any brands comprised in the said agency through the Imperial Company as agent under the last preceding clause. 22. The American Company, the Continental Company, the Cigar Company and the Consolidated Company, together with their directors, entering into the covenant aforesaid, are to give to the Imperial Company in the United Kingdom the full benefit of their good will and support, and on the other hand the Imperial Company, together with its directors, entering the covenant aforesaid, are to give to the American Company, the Continental Company and the Cigar Company in the United States, the full benefit of their good will and support, and with a view to giving further effect to the intention of the parties as in this clause hereinbefore expressed the allottees of the said 1,500,000 ordinary shares of the Imperial Company are not to sell or transfer more than 10 per cent. of the said shares within the period of five (5) years from the date of their allotment, if and so long as the present directors of the Imperial Company or some of them, shall hold not less than 3,000,000 ordinary shares of the Imperial Company. 23. This agreement is to be construed and take effect as a contract made in England and in accordance with the law of England but to the intent that any of the parties may sue in its own country. The Imperial Company is always to have an agent for service in the United States, and each of them, the American Company, the Continental Company, the Cigar Company and the Consolidated Company, is always to have an agent for service in England, and service of any such agent of any notice, summons, order, judgment or other process or document in respect of this agreement, or any matter arising thereout, shall be deemed to be good service on the party appointing such agent, and as regards each of the said parties whilst and whenever there is no other agent the following shall be considered to be the agents of the respective parties duly appointed under this clause, namely: For the Imperial Company, Samuel Untermeyer, of New York City, American counsel; and for the American Company, the Continental Company, the Cigar Company and the Consolidated Company, Joseph Hood, 41 Castle street, Liverpool, solicitor. Notice of any appointment under this clause shall be from time to time given by the appointor to the other parties hereto. The mode of service sanctioned by this clause is not in any way to prejudice or preclude any mode of service which would be allowable if this clause were omitted. 24. So far as it is necessary for the purpose of making the issue of ordinary shares hereinbefore mentioned the Imperial Company shall forthwith take the necessary steps for increasing its capital by the creation of an adequate number of ordinary shares (half preferred and half deferred) which shall rank pari passu with and shall be of the same respective classes and confer the same rights and privileges as the 5,000,000 preferred ordinary shares, and the 5,000,000 deferred ordinary shares forming part of the original capital of the Imperial Company. In witness whereof, the said parties of the first, second, sixth and seventh parts have hereunto affixed their common seals, and the said parties of the third, fourth and fifth parts have executed this agreement under the hand of their respective presidents the day and year first above written. EXHIBIT XX. INTERNATIONAL TOBACCO AGREEMENT NO. 2.1 Agreement Made Between the American Tobacco Company In- An agreement made the twenty-seventh day of September, one thousand nine hundred and two, between The Imperial Tobacco Company (of Great Britain and Ireland), Limited, being an English company duly incorporated under English law (hereinafter referred to as the "Imperial Company"), of the first part; Ogden's Limited, also being a company incorporated under English law (hereinafter referred to as the "Ogden Company"), of the second part; The American Tobacco Company, a corporation organized and existing under and by virtue of the laws of the State of New Jersey, one of the States of the United States of America (hereinafter referred to as the "American Company"), of the third part; Continental Tobacco Company, a corporation organized and existing under and by virtue of the laws of the said State of New Jersey (hereinafter referred to as the "Continental Company"), of the fourth part; American Cigar Company, a corpora 1Report of the Commissioner of Corporations on the Tobacco Industry (1909), Pt. 1, pp. 440-446. |