RIGHT TO CONDUCT AUDITS WITH RESPECT TO ALL
INFORMATION PROVIDED TO IT BY THE OTHER PARTY. THE PARTY CONDUCTING THE AUDIT
(THE "AUDITING PARTY") SHALL HAVE THE SOLE DISCRETION TO DETERMINE THE
PROCEDURES AND GUIDELINES FOR CONDUCTING AUDITS AND THE SELECTION OF AUDIT
REPRESENTATIVES UNDER THIS SECTION 7.3(A). THE AUDITING PARTY SHALL HAVE
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THE RIGHT TO MAKE COPIES OF ANY RECORDS AT ITS EXPENSE, SUBJECT TO THE
CONFIDENTIALITY PROVISIONS SET FORTH IN THE DISTRIBUTION AGREEMENT, WHICH ARE
INCORPORATED BY REFERENCE HEREIN. THE PARTY BEING AUDITED SHALL PROVIDE THE
AUDITING PARTY'S REPRESENTATIVES WITH REASONABLE ACCESS DURING NORMAL BUSINESS
HOURS TO ITS OPERATIONS, COMPUTER SYSTEMS AND PAPER AND ELECTRONIC FILES, AND
PROVIDE WORKSPACE TO ITS REPRESENTATIVES. AFTER ANY AUDIT IS COMPLETED, THE
PARTY BEING AUDITED SHALL HAVE THE RIGHT TO REVIEW A DRAFT OF THE AUDIT FINDINGS
AND TO COMMENT ON THOSE FINDINGS IN WRITING WITHIN FIVE BUSINESS DAYS AFTER
RECEIVING SUCH DRAFT.
(B)
THE AUDITING PARTY'S AUDIT RIGHTS UNDER THIS SECTION 7.3(B) SHALL
INCLUDE THE RIGHT TO AUDIT, OR PARTICIPATE IN AN AUDIT FACILITATED BY THE PARTY
BEING AUDITED, OF ANY SUBSIDIARIES AND AFFILIATES OF THE PARTY BEING AUDITED AND
OF ANY BENEFIT PROVIDERS AND THIRD PARTIES WITH WHOM THE PARTY BEING AUDITED HAS
A RELATIONSHIP, OR AGENTS OF SUCH PARTY, TO THE EXTENT ANY SUCH PERSONS ARE
AFFECTED BY OR ADDRESSED IN THIS AGREEMENT (COLLECTIVELY, THE "NON-PARTIES").
THE PARTY BEING AUDITED SHALL, UPON WRITTEN REQUEST FROM THE AUDITING PARTY,
PROVIDE AN INDIVIDUAL (AT THE AUDITING PARTY'S EXPENSE) TO SUPERVISE ANY AUDIT
OF A NON-PARTY. THE AUDITING PARTY SHALL BE RESPONSIBLE FOR SUPPLYING, AT THE
AUDITING PARTY'S EXPENSE, ADDITIONAL PERSONNEL SUFFICIENT TO COMPLETE THE AUDIT
IN A REASONABLY TIMELY MANNER. THE RESPONSIBILITY OF THE PARTY BEING AUDITED
SHALL BE LIMITED TO PROVIDING, AT THE AUDITING PARTY'S EXPENSE, A SINGLE
INDIVIDUAL AT EACH AUDITED SITE FOR PURPOSES OF FACILITATING THE AUDIT.
7.4
FIDUCIARY MATTERS. ALTRIA AND KRAFT EACH ACKNOWLEDGE THAT ACTIONS
REQUIRED TO BE TAKEN PURSUANT TO THIS AGREEMENT MAY BE SUBJECT TO FIDUCIARY
DUTIES OR STANDARDS OF CONDUCT UNDER ERISA OR OTHER APPLICABLE LAW, AND NO PARTY
SHALL BE DEEMED TO BE IN VIOLATION OF THIS AGREEMENT IF IT FAILS TO COMPLY WITH
ANY PROVISIONS HEREOF BASED UPON ITS GOOD FAITH DETERMINATION THAT TO DO SO
WOULD VIOLATE SUCH A FIDUCIARY DUTY OR STANDARD. EACH PARTY SHALL BE RESPONSIBLE
FOR TAKING SUCH ACTIONS AS ARE DEEMED NECESSARY AND APPROPRIATE TO COMPLY WITH
ITS OWN FIDUCIARY RESPONSIBILITIES.
7.5
COLLECTIVE BARGAINING. TO THE EXTENT ANY PROVISION OF THIS
AGREEMENT IS CONTRARY TO THE PROVISIONS OF ANY COLLECTIVE BARGAINING AGREEMENT
TO WHICH ALTRIA OR KRAFT OR THEIR RESPECTIVE AFFILIATES IS A PARTY, THE TERMS OF
SUCH COLLECTIVE BARGAINING AGREEMENT SHALL PREVAIL. SHOULD ANY PROVISIONS OF
THIS AGREEMENT BE DEEMED TO RELATE TO A TOPIC DETERMINED BY AN APPROPRIATE
AUTHORITY TO BE A MANDATORY SUBJECT OF COLLECTIVE BARGAINING, ALTRIA OR KRAFT
MAY BE OBLIGATED TO BARGAIN WITH THE UNION REPRESENTING AFFECTED EMPLOYEES
CONCERNING THOSE SUBJECTS.
7.6
CONSENT OF THIRD PARTIES. IF ANY PROVISION