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AMENDED AND RESTATED ADDENDUM TO FINE PAPERS SUPPLY AGREEMENT
This Addendum, originally effective as of April 1, 1998 and as amended
and restated effective July 1, 2000, by and between Philip Morris
Incorporated, a Virginia corporation with offices at 3601 Commerce
Road, Richmond, Virginia 23234, doing business as Philip Morris U.S.A.
("Philip Morris"), and Schweitzer-Mauduit International, Inc., a
Delaware corporation with offices at 100 North Point Center,
Alpharetta, Georgia 30022 ("SWM"), amends and supplements the Fine
Papers Supply Agreement between the same parties. The provisions of the
Agreement, as amended and supplemented by this Addendum, shall be
applicable to and govern Direct Purchases and Indirect Purchases of
Banded Cigarette Papers hereunder. Except as expressly amended or
superseded herein, the terms and conditions of the Agreement shall
continue in full force and effect. This Addendum is an Implementation
Agreement, as that term is defined in Article I.AC of the Agreement.
R E C I T A L S
1. Philip Morris and SWM are parties to a certain Fine Papers Supply
Agreement, originally effective January 1, 1993, which has been amended
on several occasions and was most recently amended and restated,
effective April 1, 1998 (the "Agreement") and executed prior to this
Addendum. Philip Morris and SWM have executed a second amended and
restated agreement that will become effective July 1, 2000 and upon its
effectiveness, such second restatement will hereafter be deemed the
"Agreement" for all purposes herein.
2. Philip Morris and SWM are also parties to a certain agreement,
effective November 13, 1992, to develop the equipment, processes and
know-how required to manufacture Banded Cigarette Papers (as defined in
Article 1.5 below).
3. Philip Morris may, under the circumstances described in this Addendum,
elect to purchase Banded Cigarette Papers from SWM, but in order to
manufacture Banded Cigarette Papers for sale to Philip Morris and,
potentially, other customers, SWM must upgrade and modify its equipment
and processes at SWM's paper manufacturing facility in Spotswood, New
Jersey (the "Mill").
4. To induce SWM to make upgrades and modifications at the Mill to produce
this new product, heretofore not marketed, and to undertake other
measures to improve SWM's capability to produce current products at the
Mill, Philip Morris has agreed [*****] in accordance with the terms of
this Addendum [*****]
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[*****] of Banded Cigarette Papers and other Cigarette Papers
from SWM.
5. Philip Morris and SWM also desire that the Agreement be amended and
supplemented to incorporate special provisions for the purchase by
Philip Morris, and the sale by SWM, of Banded Cigarette Papers.
N O W T H E R E F O R E, the Parties agree as follows:
ARTICLE 1 - DEFINITIONS
Capitalized terms not defined herein shall have the definition provided
in the Agreement.
1.1 [*****]
1.2 AGGREGATE POST CONVERSION PRACTICAL PRODUCTION CAPACITY -- as
defined in Exhibit G hereto.
1.3 AGGREGATE PRACTICAL PRODUCTION CAPACITY -- as defined in
Exhibit O hereto.
1.4 AGREEMENT or FINE PAPERS SUPPLY AGREEMENT -- that certain
amended and restated agreement between the Parties, effective
July 1, 2000, under which Philip Morris has agreed to
purchase, accept and pay for, and SWM has agreed to
manufacture, sell and deliver, Fine Papers. As used herein,
the term also includes future amendments to such agreement.
1.5 BANDED CIGARETTE PAPERS -- the various Grades of a Group of
Cigarette Papers for use in forming Cigarette rods having
integrated cellulosic bands that encircle the finished
Cigarette rod to modify the mass burn rate of the Cigarette.
This Group is limited to Cigarette Papers whose bands are
applied to the paper using a process that incorporates a
moving orifice device (the "MOD Process").
1.6 CHANGE OF MANAGEMENT CONTROL -- a purchase by a cigarette
manufacturing company or an Affiliate thereof of (a) any or
all of SWM's Cigarette Paper manufacturing assets at the Mill,
(b) more than [*****] of SWM's voting stock, or (c) [*****] or
more of SWM's voting stock and, as a result of such stock
purchase, [*****]
1.7 CONVERSION PERIOD -- that period commencing with the date
Philip Morris issues the Notice to Proceed and ending with the
date identified in the Conversion Schedule as the date by
which the last of the Paper Machines to be converted to
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OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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Banded Cigarette Papers production hereunder will be qualified
to produce Banded Cigarette Papers.
1.8 CONVERSION SCHEDULE -- as defined in Article 2.10.
1.9 DIRECT PURCHASE REQUIREMENTS -- has the same meaning as
Buyer's Direct Purchase Requirements in the Agreement.
1.10 EDR -- that certain engineering design report detailing the
Parties' implementation strategy for the manufacture of Banded
Cigarette Papers at the Mill, dated April 1997. As used
herein, the term includes (1) the amendments and updates to
such report described by the letter agreement that is attached
hereto as Exhibit A and (2) any subsequent updates that may be
agreed upon in writing by the Parties (see, e.g., Article
2.3.2).
1.11 [*****]
1.12 [*****] -- the amount, if any, by which the [*****] exceeds
the [*****].
1.13 [*****]
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[*****]
1.14 FINAL COMPLETION -- shall occur when (a) the Work is completed
in accordance with the Project Documents (including any
testing and trials) to the extent that each of the Paper
Machines to be converted to Banded Cigarette Papers production
is ready for Qualification by Philip Morris, (b) all
supporting documentation, drawings and manuals identified as
deliverables in the Project Documents are delivered and Philip
Morris has acknowledged that such documents conform to the
requirements of the Project Documents, and (c) SWM has
provided notices to Philip Morris that each of the Paper
Machines to be converted to Banded Cigarette Papers production
(other than any to which a change in the scope of the Work may
be applicable) is complete and ready for Qualification.
1.15 FINAL COMPLETION DATE -- the earlier to occur of (a) the date
on which SWM provides Philip Morris notice of Final Completion
and (b) [*****] after the day on which the [*****] required
to prepare it for Banded Cigarette Paper production.
1.16 FIRST MACHINE COMPLETION -- shall occur when (a) the Work
associated with the first of the Paper Machines is completed
in accordance with the Project Documents to the extent that
such machine is ready for Qualification to manufacture
conventional Cigarette Papers (i.e., Cigarette Papers other
than Banded Cigarette Papers) by Philip Morris and (b) SWM
provides notice to Philip Morris of such completion and
readiness.
1.17 FIRST MACHINE COMPLETION DATE -- the date when SWM provides
Philip Morris notice of First Machine Completion.
1.18 FIRST MACHINE DOWN DATE -- the day on which the first Paper
Machine is removed from production for the Work required to
prepare it for Banded Cigarette Papers production.
1.19 FIRST SALE DATE -- the date after First Machine Completion
Date that Philip Morris first makes a Direct Purchase or
Indirect Purchase of one or more Bobbins of Banded Cigarette
Papers.
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24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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1.20 [*****]
1.21 INDIRECT PURCHASE REQUIREMENTS -- has the same meaning as
Buyer's Indirect Purchase Requirements in the Agreement.
1.22 INDIVIDUAL MACHINE COMPLETION -- shall occur for each Paper
Machine when (a) the Work associated with that Paper Machine
is completed in accordance with the Project Documents to the
extent that such machine is ready for Qualification to
manufacture conventional Cigarette Papers by Philip Morris and
(b) SWM provides notice to Philip Morris of such completion
and readiness.
1.23 INDIVIDUAL MACHINE COMPLETION DATE -- the date when SWM
provides Philip Morris notice of an Individual Machine
Completion.
1.24 INITIAL COMMERCIAL PRODUCTION -- after Philip Morris has
issued the Notice to Proceed, the first day of the calendar
month after the month in which SWM delivers Banded Cigarette
Papers hereunder at an average rate of at least [*****]
Standard Bobbins per month over a consecutive three-month
period.
1.25 LAWS -- the federal, state and local laws, regulations and
ordinances applicable to a Party's performance under the
Agreement, including this Addendum.
1.26 LICENSING AGREEMENT -- that certain agreement between the
Parties, originally effective April 1, 1998, and as amended
and restated effective July 1, 2000, setting forth ownership
rights and granting licenses and [*****] rights respecting
technology and patents concerning the manufacture of Banded
Cigarette Papers. As used herein, the term includes future
amendments to such agreement.
1.27 MILESTONE SCHEDULE -- the milestone schedule set forth in
Exhibit B hereto, which is incorporated by reference and made
a part hereof. This schedule identifies the durations
(measured from the Notice to Proceed) within which SWM is to
complete the Work prerequisite (a) to Individual Machine
Completion for each Paper Machine and (b) to the manufacture
of Banded Cigarette Papers generally at the Mill. As used
herein, the term includes updates to such milestone schedule
that may be agreed upon in writing by the Parties (see, e.g.,
Article 2.3.2).
1.28 MILL -- SWM's Spotswood, New Jersey manufacturing facility.
1.29 MILL UPGRADE PROJECT -- that certain project to modify and
upgrade the Mill to give it the capability to produce Banded
Cigarette Papers, as more particularly described in Article 2
hereof.
1.30 MOD EQUIPMENT -- the class 1, class 2 and class 3 equipment to
be installed at the Mill as part of the Mill Upgrade Project,
as more particularly identified in
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Exhibit C hereto. As used herein, the term includes the
equipment identified on any updates to Exhibit C that may be
agreed upon in writing by the Parties.
1.31 NOTICE TO PROCEED -- as defined in Article 2.1.
1.32 PAPER MACHINE -- in the singular, any of the No. [*****]
paper manufacturing machines at the Mill, or in the plural,
more than one or all of such machines, as the context
requires.
1.33 PARTIES -- Philip Morris and SWM.
1.34 PARTY -- either Philip Morris or SWM.
1.35 PHILIP MORRIS PROJECT REPRESENTATIVE -- the Philip Morris
employee or agent designated from time to time in accordance
with Article 8.3 hereof to be Philip Morris's on-site
representative at the Mill during the performance of the Work.
1.36 POST COMPLETION PERFORMANCE REPORT -- a report prepared by SWM
to document [*****], such report to be in accordance with SWM
internal accounting policies and substantially in the form of
Exhibit P hereto.
1.37 POST CONVERSION PRACTICAL PRODUCTION CAPACITY -- as defined in
Exhibit G hereto.
1.38 PRACTICAL PRODUCTION CAPACITY -- the capacity values set forth
in Exhibit O hereto.
1.39 [*****]
1.40 [*****]
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OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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1.41 PROJECT DOCUMENTS -- the EDR and certain additional documents
identified in Exhibit J hereto.
1.42 QUALIFICATION -- the demonstration by SWM, in accordance with
Philip Morris's normal cigarette component qualification
procedures, and the acknowledgement by Philip Morris, which
shall not be withheld unreasonably, that a particular Paper
Machine is capable of continuously and reliably manufacturing
a particular Grade of Fine Papers in conformance with the
Specifications that define such Grade.
1.43 [*****]
1.44 [*****]
1.45 [*****]
1.46 TERM OF SUPPLY -- the period that Banded Cigarette Papers are
to be purchased and sold hereunder as provided in Article 3.2.
1.47 [*****]
1.48 [*****]
1.49 [*****]
1.50 WORK -- the specific tasks and actions to be performed and
taken by SWM, directly or through its contractors, in
implementing the Mill Upgrade Project, as further defined in
the Project Documents.
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ARTICLE 2 - MILL UPGRADE PROJECT
2.1 NOTICE TO PROCEED
Subject to Article 5.2.1, Philip Morris may issue a written
notice directing SWM to proceed with the Mill Upgrade Project
("Notice to Proceed") at any time after the effective date
hereof.
2.2 PROSECUTION OF THE WORK
2.2.1 SWM RESPONSIBILITIES
Upon receipt of the Notice to Proceed, SWM, to the
extent that it has not already done so, shall
provide, or cause to be provided through a contractor
or contractors, all engineering, supervision, labor,
procurement of materials and equipment, fabrication,
construction and installation services appropriate
and required to perform the Work, which shall include
(a) performing the activities described in the
Project Documents, (b) effecting any additional
operational changes SWM determines to be necessary to
manufacture Banded Cigarette Papers at the Mill, and
(c) delivering all supporting documentation, drawings
and manuals identified by the Project Documents to be
delivered to Philip Morris, including but not limited
to those [*****]. SWM shall be solely responsible for
[*****] required to support the Work and for the
payment of all material or equipment vendors and
contractors SWM may retain in connection with the
Work. The Work shall be performed in strict
accordance with the scope of work set forth in the
Project Documents and otherwise in accordance with
this Addendum and the Project Documents.
2.2.2 PROJECT OBJECTIVE
Through the Mill Upgrade Project, SWM shall exercise
commercially reasonable efforts to upgrade and modify
the Mill to the extent that upon completion of the
Work the Paper Machines will be capable of
manufacturing Banded Cigarette Papers that conform to
the ranges of process and product characteristics
identified in Exhibit E hereto, all while achieving
the projected individual and cumulative Post
Conversion Practical Production Capacities set forth
in Exhibit G.
2.3 MILESTONE SCHEDULE
2.3.1 The First Machine Completion and Final Completion
shall occur within the durations (from the Notice to
Proceed) indicated in the Milestone
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Schedule. [*****] Durations in the Milestone Schedule
that may be applicable for any Paper Machine shall be
extended to the extent Qualification of such Paper
Machine is delayed by Philip Morris, but unless
otherwise mutually agreed, a delay by Philip Morris
to the Qualification of any Paper Machine shall not
extend durations in the Milestone Schedule applicable
to any other Paper Machine (i.e., work on other Paper
Machines shall continue in accordance with the
Milestone Schedule unless otherwise mutually agreed).
2.3.2 [*****]
2.3.3 If the engineering and project management contractor
currently engaged by SWM is demobilized [*****], the
durations allowed by the then agreed upon Milestone
Schedule for First Machine Completion and Final
Completion each shall be extended for a period to be
mutually agreed, but not more than [*****], to
allow additional time for remobilizing and rebidding
the Work, as necessary. The Milestone Schedule also
shall be adjusted to the extent that the delivery
schedules of vendors and contractors to be engaged by
SWM are different from the schedules on which the
Milestone Schedule is based.
2.4 PROJECT MANAGEMENT
SWM shall have sole responsibility for project management,
which shall include procuring or arranging procurement of all
the materials and equipment required for the Work and
contracting for and administering all engineering,
construction, installation and start-up services required to
complete the Work. SWM shall be responsible for seeing that
the Work is prosecuted in accordance with such project
schedules as it may maintain. Such schedules shall be
consistent with the Milestone Schedule. SWM shall be solely
responsible for seeing that the Work is performed in
accordance with all applicable Laws, and for seeing that all
on-site contractors have and implement safety programs
consistent with paper industry practice.
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2.5 PHILIP MORRIS REVIEW AND APPROVAL
2.5.1 Philip Morris shall have the opportunity to [*****]
2.5.2 Philip Morris shall have the opportunity [*****].
2.5.3 The Philip Morris Project Representative shall have
[*****]
2.6 CHANGES TO PROJECT AND SUSPENSION OF WORK
[*****] SWM shall not authorize or permit any departure from
or change to the scope of the Work unless [*****]
shall be authorized to grant written approval of such
departures or changes and to act on [*****] Project
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Representative that are recorded in writing and
signed by [*****].
2.6.2 Philip Morris may at any time, by written notice,
make actual or constructive changes in, additions to
or deletions from the scope of the Work to be
performed by SWM; [*****].
2.6.3 Upon written notice from Philip Morris, SWM shall
suspend performance of all or any part of the Work
for such period as Philip Morris may direct. Philip
Morris shall [*****] and upon receipt of Philip
Morris's suspension notice, SWM shall not place
further orders or enter into further subcontracts
relating to the suspended Work. Notwithstanding the
preceding sentence, SWM shall notify Philip Morris
and request authority to continue performance of all
or part of the Work (a) to the extent that, in SWM's
opinion, failure to continue or complete discrete
elements of the Work [*****] or (b) to the extent
necessary to protect the Work in progress. In
addition, and whether or not Philip Morris consents,
following receipt of a suspension notice from Philip
Morris, SWM may take such actions as SWM concludes
are reasonably necessary to restore the Mill's
capability to resume the manufacture of Cigarette
Papers other than Banded Cigarette Papers; [*****].
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2.6.4 Additional Work performed pursuant to change orders
submitted by Philip Morris pursuant to Article 2.6.1
or Article 2.6.2 or otherwise agreed to by the
Parties shall be subject to all applicable terms and
conditions of this Addendum.
2.7 EQUITABLE ADJUSTMENTS AND [*****]
2.7.1 If (a) any delay by Philip Morris pursuant to Article
2.5.1, (b) any change initiated by Philip Morris
pursuant to Article 2.6.2, agreed to by the Parties
or initiated by SWM and approved by Philip Morris
pursuant to Article 2.6.1 or (c) any suspension of
the Work, in whole or in part, initiated by Philip
Morris pursuant to Article 2.6.3 increases or
decreases the time required for performance of the
Work, then an equitable adjustment shall be made to
the Milestone Schedule.
2.7.2 If (a) any delay by Philip Morris pursuant to Article
2.5.1, (b) any change initiated by Philip Morris
pursuant to Article 2.6.2, agreed to by the Parties
or initiated by SWM and approved by Philip Morris
pursuant to Article 2.6.1 or (c) any suspension of
the Work, in whole or in part, initiated by Philip
Morris pursuant to Article 2.6.3, [*****].
2.7.3 Notwithstanding Article 2.7.2, Philip Morris shall
[*****] (a) any delay by Philip Morris pursuant to
Article 2.5.1, (b) any change initiated by Philip
Morris pursuant to Article 2.6.2, agreed to by the
Parties or initiated by SWM and approved by Philip
Morris pursuant to Article 2.6.1 or (c) any
suspension of the Work, in whole or in part,
initiated by Philip Morris pursuant to Article 2.6.3.
In addition, in the event of a suspension of the
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Work by Philip Morris as permitted by Article 2.6.3,
Philip Morris shall [*****] in accordance with
Article [*****] than Banded Cigarette Papers.
Finally, if a suspension of the Work directed by
Philip Morris as permitted by Article 2.6.3 is
anticipated to last longer than [*****], Philip
Morris shall [*****] as the result of such
suspension, but only for the period any of the
[*****], such [*****] in the manner set forth in
Article [*****] by Philip Morris pursuant to [*****]
Article [*****] are hereinafter referred to as
[*****].
2.7.4 SWM's right to an equitable adjustment in the
Schedule or [*****] pursuant to Article 2.7.1 or
Article 2.7.2 and/or any [*****] pursuant to Article
[*****] is expressly conditioned on SWM providing
Philip Morris notice of its intent to request such
adjustment (a) within [*****] after SWM receives
Philip Morris's notice of change, (b) within [*****]
of the event relied upon by SWM as giving rise to any
constructive change or (c) within [*****] after
Philip Morris directs SWM to resume the Work
following a suspension. Within [*****] after the
event giving rise to a notice by SWM in accordance
with the preceding sentence, SWM shall submit its
formal request for equitable adjustment [*****],
which shall detail SWM's justification for any
proposed equitable adjustment [*****]. The Parties
shall attempt to resolve any request by SWM for an
equitable adjustment within [*****]. Philip Morris
shall [*****] any [*****] in accordance with Article
[*****] within [*****] after receipt of such formal
request for [*****].
2.7.5 SWM shall proceed with performance of the Work as
changed prior to or pending agreement upon (a) any
requested equitable adjustment in the Milestone
Schedule pursuant to Article 2.7.1 and/or the [*****]
Article 2.7.2 and/or (b) any [*****] requested
pursuant to Article [*****] and shall not halt or
delay performance because of any failure to so agree
to any such equitable adjustment [*****].
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2.8 MONTHLY REPORTS AND FINANCIAL CERTIFICATIONS
2.8.1 Following receipt of the Notice to Proceed, SWM shall
provide Philip Morris monthly written reports on the
status of the Mill Upgrade Project. Such reports
shall detail the progress of the Work and compare the
actual progress of all significant facets of the Work
to scheduled progress, reporting positive or negative
"float" in the status of all "critical path" and
"near critical" activities and identifying current
and cumulative variances in [*****] compared to the
[*****] agreed upon by the Parties. Such reports also
shall include a forecast of activities for the coming
month and a discussion of the safety performance of
the contractors performing the Work.
2.8.2 Commencing with the calendar quarter prior to the
date the [*****], and continuing through the calendar
quarter in which the Final Completion Date occurs,
SWM shall provide Philip Morris [*****] shall be
provided each calendar quarter in the month in which
SWM files its Form 10-K or 10-Q, as appropriate, with
the Securities and Exchange Commission.
2.9 PROJECT MEETINGS
At least once each month during the performance of the Work,
the representatives of SWM and Philip Morris shall meet to
discuss the progress of the Work, including but not limited to
the activities discussed in the most recent monthly status
report and the safety performance of the contractors
performing the Work.
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2.10 COMMERCIALIZATION SEQUENCE
2.10.1 Following Qualification to manufacture Banded
Cigarette Papers, each Paper Machine that has been
modified to be capable to produce Banded Cigarette
Papers shall be converted to full or part-time
production of Banded Cigarette Papers in accordance
with the conversion schedule and sequence set forth
in Exhibit F hereto (the "Conversion Schedule"),
which is incorporated by reference herein and made a
part hereof. Such Conversion Schedule reflects
[*****].
2.10.2 At its sole option, Philip Morris may elect to pursue
a less aggressive schedule for conversion of the
individual Paper Machines than that provided in
Exhibit F [*****], in which case Philip Morris shall
so notify SWM. Thereupon, the Parties, by mutual
agreement, will modify the Conversion Schedule
accordingly. If such notice results in [*****], SWM
shall determine the [*****] but in doing so shall
seek to minimize the [*****].
2.10.3 Philip Morris and its representatives shall [*****]
during trial runs on the converted Paper Machines for
[*****].
2.11 PROJECT [*****]
Within [*****] after the Final Completion Date, SWM shall
provide Philip Morris with [*****]. Such [*****] shall be in
sufficient detail for Philip Morris to verify, to Philip
Morris's reasonable satisfaction, the [*****] and [*****]
specified in Exhibit D hereto.
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OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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ARTICLE 3 - PURCHASE AND SALE OF BANDED CIGARETTE PAPERS
3.1 GENERAL APPLICABILITY OF THIS ARTICLE 3
As indicated herein, the provisions of this Article 3 amend
and/or supplement the terms of the Agreement as regards Banded
Cigarette Papers delivered through Direct Purchases and
Indirect Purchases hereunder.
3.2 TERM OF SUPPLY
If a Notice to Proceed is given by Philip Morris pursuant to
Article 2.1 hereof, the period that Banded Cigarette Papers
are to be purchased and sold hereunder (the "Term of Supply")
shall be the same as the Term as defined in the Agreement,
except that:
3.2.1 [*****]
3.2.2 [*****]
3.2.3 [*****]
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OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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3.2.4 [*****]
3.2.5 [*****]
Except as expressly provided above, the duties and obligations
of the Parties under this Addendum shall be subject to Article
III of the Agreement in all respects, including the provisions
thereof respecting termination and the Phaseout Period. (Given
the limitations imposed by Article 3.2.2, Article 3.2.3 and
Article 3.2.4 above, it is possible that [*****], depending on
the timing of a notice of termination of the Agreement. For
example, [*****]
3.3 QUANTITY OF SUPPLY
3.3.1 For purposes of this Addendum and the Agreement,
Banded Cigarette Papers will be treated as a new
Group within the Category of Cigarette Papers.
3.3.2 From time to time, Philip Morris shall propose the
specifications for Grades of Banded Cigarette Papers
to be delivered through Direct Purchases and Indirect
Purchases. The Grades of Banded Cigarette Papers
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to which the Addendum shall be applicable shall be
limited to those Grades for which SWM has accepted
the applicable Specifications proposed by Philip
Morris. Each such Specification for a new Grade will
specify the tolerance limits, if any, to be
applicable to such Grade. SWM will review such
proposed Specifications [*****]
3.3.3 Unless otherwise agreed by the Parties, at the same
time as Philip Morris proposes the Specifications for
any new Grade of Banded Cigarette Papers it shall
also propose criteria defining the rates of rejection
for nonconformity with such Specifications that will
constitute an Event of Default for purposes of
Article XXIII of the Agreement. Such criteria shall
be applicable with respect to the first [*****] that
SWM delivers such Grade of Banded Cigarette Papers in
lieu of the criteria otherwise applicable under
Article XXIII.A.1.a of the Agreement for such period.
After the end of such [*****] period, the criteria
otherwise applicable under Article XXIII.A.1.a of the
Agreement shall apply to the new Grade. If the
criteria proposed by Philip Morris are unacceptable
to SWM, SWM shall so notify Philip Morris promptly
and in writing. If the Parties are thereafter unable
to agree upon the criteria defining the rates of
rejection for nonconformity with such Specifications
that shall constitute an Event of Default within
[*****] after the criteria were first proposed by
Philip Morris, then for the first [*****] of delivery
of such new Grade it shall be an Event of Default if
the rejection rate for the new Grade of Banded
Cigarette Papers shall exceed [*****]. After such
[*****], the permissible rejection rate for such new
Grade shall be as specified in Article XXIII.A.1.a of
the Agreement.
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OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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3.3.4 The quantity of Banded Cigarette Papers to be
purchased and sold hereunder each Year shall be as
provided in Article IV of the Agreement except that:
3.3.4.1 [*****]
3.3.4.2 Notwithstanding Article IV.E of the
Agreement, SWM's maximum sales obligation
under the Agreement during any Year with
respect to Banded Cigarette Papers shall not
exceed the lesser of [*****]
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[*****]
3.3.4.3 Philip Morris shall have the right, but not
the obligation, to [*****], but SWM's
maximum sales obligation during any Year
with respect to all Direct Purchases and
Indirect Purchases of Banded Cigarette
Papers hereunder shall be limited to SWM's
maximum sales obligation with respect to
Banded Cigarette Papers as stated in Article
3.3.4.2 above. (The right to purchase Banded
Cigarette Papers [*****] contained in
this Article 3.3.4.3 shall be in lieu of
Philip Morris's purchase rights [*****].
Thus, as respects Cigarette Papers
generally, the limitation on deliveries to
Philip Morris [*****]
3.3.5 [*****]
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3.3.6 If Philip Morris determines that its cumulative
Direct Purchase Requirements and Indirect Purchase
Requirements for Banded Cigarette Papers are such
that Philip Morris will require deliveries of Banded
Cigarette Papers in excess of those quantities that
SWM is obligated to deliver hereunder at any time
during the Conversion Period, Philip Morris [*****].
3.4 SOURCE OF SUPPLY
Any Banded Cigarette Papers to be delivered pursuant to Direct
Purchases and Indirect Purchases hereunder shall be [*****].
Unless otherwise agreed, [*****] (As respects Banded Cigarette
Papers only, this Article 3.4 [*****]
3.5 COMPENSATION
As respects Banded Cigarette Papers only, the provisions of
this Article 3.5 shall be in lieu of the provisions of Article
VIII.A, Article VIII.C, Article VIII.D, Article VIII.F,
Article VIII.H, Article VIII.I, Article VIII.L, and Article
VIII.M. The Provisions of this Article 3.5 do not amend,
supplement or replace in any way the provisions of Article
VIII.B, Article VIII.E, Article VIII.J or Article VIII.K of
the Agreement.
3.5.1 GENERAL
3.5.1.1 For each Bobbin of any Grade of Banded
Cigarette Papers sold and delivered through
Direct Purchases hereunder, Philip Morris
shall pay the applicable Invoice Price for
such Grade. The Invoice Price for each Grade
shall be the [*****]
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OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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[*****]
3.5.1.2 For each Bobbin of any Grade of Banded
Cigarette Papers sold and delivered through
Indirect Purchases hereunder, SWM shall
[*****].
3.5.2 DEFINITIONS
For purposes of this Article 3.5, each of the
following terms shall have the meaning hereinafter
set forth:
3.5.2.1 [*****]
3.5.2.2 [*****]
[*****]
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OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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[*****]
3.5.2.3 [*****]
3.5.2.4 CONSUMER PRICE INDEX -- the Consumer Price
Index for [*****]
3.5.2.5 [*****]
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[*****]
3.5.2.6 [*****]
[*****]
[*****]
[*****]
3.5.2.7 [*****]
[*****]
[*****]
[*****]
3.5.2.8 [*****]
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OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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[*****]
[*****]
[*****]
3.5.2.9 [*****]
3.5.2.10 [*****]
3.5.2.11 [*****]
3.5.2.12 [*****]
3.5.2.13 [*****]
3.5.2.14 PRICE -- the price to be paid for each
Standard Bobbin of any Grade of Banded
Cigarette Papers sold and delivered through
Direct Purchases hereunder.
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3.5.2.15 PRODUCER PRICE INDEX -- the [*****]
3.5.2.16 [*****]
3.5.2.17 [*****]
3.5.2.18 [*****]
3.5.2.19 [*****]
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OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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[*****]
3.5.2.20 [*****]
3.5.2.21 [*****]
3.5.3 DETERMINATION OF PRICE FOR ALL TIMES OTHER THAN
[*****]
[*****]
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[*****]
3.5.3.1 [*****]
3.5.3.1.1 [*****]
3.5.3.1.2 [*****]
[*****]
UGC(2)= [*****]
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[*****]
UGC(1)= [*****]
I(2)= [*****]
I(1)= [*****]
[*****]
[*****]
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3.5.3.2 [*****]
3.5.3.3 [*****]
3.5.3.3.1 [*****]
3.5.3.3.2 [*****]
3.5.3.3.3 [*****]
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OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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[*****]
[*****]
3.5.3.4 [*****]
3.5.3.5 [*****]
3.5.3.6 [*****]
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OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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[*****]
[*****]
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24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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[*****]
3.5.3.7 [*****]
3.5.4 [*****]
[*****]
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OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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3.5.4.1 [*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
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OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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[*****]
3.5.4.2 [*****]
3.5.4.3 [*****]
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OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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3.5.5 [*****]
3.5.5.1 [*****]
3.5.5.2 [*****]
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OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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3.5.5.3 [*****]
3.5.6 [*****]
3.5.6.1 [*****]
3.5.6.2 [*****]
3.5.6.2.1 [*****]
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OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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3.5.6.2.2 [*****]
3.5.6.2.3 [*****]
3.5.6.2.4 [*****]
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OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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3.5.6.3 [*****]
3.5.6.4 [*****]
3.5.6.5 [*****]
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[*****]
3.5.7 [*****]
3.5.7.1 [*****]
3.5.7.2 [*****]
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3.5.8 [*****]
[*****]
3.5.9 [*****]
[*****]
3.5.10 [*****]
[*****]
3.5.11 [*****]
3.5.11.1 [*****]
3.5.11.2 [*****]
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OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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[*****]
3.5.11.3 [*****]
3.5.11.4 [*****]
3.5.11.5 [*****]
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3.5.11.6 [*****]
3.6 [*****]
3.6.1 [*****]
3.6.2 [*****]
3.6.3 [*****]
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[*****]
3.7 FORCE MAJEURE
Notwithstanding any other provision of the Agreement, in the event of a
Force Majeure Event that limits or prevents the Delivery of Banded
Cigarette Papers manufactured at the Mill, SWM shall have no obligation
to avoid or reduce the impact of the Force Majeure event through the
Delivery of Banded Cigarette Papers produced at any manufacturing
facility other than the Mill.
3.8 WARRANTY
The following warranty and remedy shall be in lieu of the warranty and
remedy found in Article X.B.1.b and Article X.B.2.b of the Agreement
with respect to Banded Cigarette Papers delivered hereunder. Article
X.B.1.b and Article X.B.2.b of the Agreement shall continue to be
applicable to all Fine Papers delivered hereunder other than Banded
Cigarette Papers, and Article X.B.1.a, Article X.B.2.a, Article X.B.2.c
and Article X.B.2.d shall continue to be applicable to all Fine Papers
delivered under, including Banded Cigarette Papers.
3.8.1 WARRANTY
SWM warrants that the continuous quality of Banded Cigarette Papers
received as the result of Direct Purchases and Indirect Purchases
hereunder and under the Agreement shall not result in a [*****] to
account for changes in Philip Morris's floor inspection practices or
mutually agreed changes to the Specifications that could affect [*****]
3.8.2 REMEDY
If the [*****] of Banded Cigarette Papers received hereunder during any
calendar quarter [*****] in Article 3.8.1 above, SWM shall promptly
take all necessary action to identify and correct the cause or causes
of the nonconformances that led to the [*****]. SWM shall provide
Philip Morris with a written report evaluating the nonconformances and
their causes and describing SWM's plans for preventing reoccurrence of
such nonconformances in the future. [*****] Notwithstanding the
preceding sentence, to the extent SWM
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breaches the warranty contained in Article 3.8.1 above through
nonconforming deliveries of Banded Cigarette Papers, [*****] Moreover,
if any such breach involving Banded Cigarette Papers shall occur during
the period specified in Article 3.5.3.3.1 of this Addendum but after
the Final Completion Date, and if SWM's recommended remediation for
such breach reasonably [*****]. From time to time the Parties will
reconsider the appropriateness of [*****] in light of [*****]. Nothing
herein shall be deemed to relieve SWM of the obligation to advise
Philip Morris as required by [*****] above of SWM's prospective
inability to meet the Specifications for any Grade of Banded Cigarette
Papers that may be proposed by Philip Morris
3.9 [*****]
[*****]
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[*****]
ARTICLE 4 - [*****] PAYMENTS OF INVOICE PRICE
4.1 [*****] PAYMENTS TO BE MADE BY PHILIP MORRIS
4.1.1 Philip Morris agrees to advance SWM, for the use
stated in 4.3 hereof, the amounts set forth on
Exhibit N hereto (each an "[*****] Payment," and
collectively the "[*****] Payments").
4.1.2 The [*****]. Subsequent [*****] Payments shall be
made via wire transfer (to the account designated in
writing by SWM) on the [*****]).
4.1.3 The amounts of such [*****] Payments shall [*****].
The aggregate of such payments actually made,
including the adjustments, if any, referred to in
this Article 4.1.3, are referred to herein as the
[*****].
4.2 ADJUSTMENTS TO [*****] PAYMENTS
4.2.1 Not later than [*****] Thereafter, Exhibit N shall be
amended to reflect [*****].
4.2.2 At least 30 days prior to the date the last [*****]
Payment is due to be made, SWM shall notify Philip
Morris in writing if, given the best information then
available to SWM, it appears to SWM that [*****]
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[*****]
4.3 PURPOSE OF [*****] PAYMENTS
4.3.1 [*****]
4.3.2 [*****]
4.3.3 [*****]
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[*****]
ARTICLE 5 - TERMINATION
5.1 GENERAL
The Parties' rights to terminate the Agreement, and the limitations on
such rights imposed by this Addendum, are discussed in Article 3.2
above. The Parties' rights to terminate this Addendum, along with the
effect of a termination of the Agreement on the continued effectiveness
of this Addendum, are discussed in Article 5.2 below. The consequences
that a termination of this Addendum or of the Agreement will have on
the rights and obligations of the Parties under this Addendum are
discussed in Article 5.3 below. Finally, under certain circumstances
Philip Morris shall be entitled to [*****] These circumstances, and the
rights and obligations of the Parties in such event, are set forth in
Article 5.4 below.
5.2 TERMINATION OF ADDENDUM
5.2.1 TERMINATION OF ADDENDUM BY SWM -- If Philip Morris fails to
provide SWM with the Notice to Proceed by December 31, 2002,
SWM thereafter may provide notice to Philip Morris terminating
this Addendum, such termination to become effective 30 days
after Philip Morris receives notice of such termination;
provided, however, such termination shall not become
effective, and SWM's notice of termination shall be of no
effect, if Philip Morris provides SWM with the Notice to
Proceed at any time within 20 days after Philip Morris
receives SWM's notice of termination.
5.2.2 TERMINATION OF ADDENDUM BY PHILIP MORRIS PRIOR TO [*****] --
Except as provided in Article 5.2.3 below, Philip Morris may
not terminate the Addendum prior to issuance of a Notice to
Proceed except by terminating the Agreement pursuant to
Article III thereof. After issuance of a Notice to Proceed,
Philip Morris may terminate this Addendum pursuant to this
Article 5.2.2, but only if it provides written notice of
termination to SWM prior to the [*****]. Such termination
shall be effective upon SWM's receipt of Philip Morris's
notice of termination. This right of termination is in
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addition to any rights Philip Morris may have with respect to
any breach of the Agreement that may [*****]
5.2.3 TERMINATION OF ADDENDUM BY PHILIP MORRIS [*****]
[*****]
5.2.4 TERMINATION OF ADDENDUM UPON THE EXPIRATION OR TERMINATION OF
THE AGREEMENT -- Except as limited by Article 3.2 above, the
Addendum shall terminate automatically and effective
immediately (a) upon the expiration of the Agreement or (b)
upon the effectiveness of any termination of the Agreement in
accordance with Article III thereof; provided, however, if
Philip Morris has issued a Notice to Proceed prior to
expiration of the Agreement or prior to the effectiveness of
any termination of the Agreement, then the Parties'
obligations to sell and deliver Banded Cigarette Papers as set
forth in this Addendum shall survive such expiration or
termination of the Agreement as respects Fine Papers other
than Banded Cigarette Papers and shall remain in effect as
provided in Article 3.2 unless Philip Morris provides notice
of termination of this Addendum prior to [*****] in accordance
with Article 5.2.2 above or [*****]
5.3 CONSEQUENCES OF TERMINATION OF THIS ADDENDUM OR THE AGREEMENT
5.3.1 DISCHARGE OF OBLIGATIONS -- Except as expressly provided
herein, termination of the Addendum by either Party shall have
the effect of discharging the Parties from all duties and
obligations the performance of which are not yet due under
this Addendum. Such termination shall not release or discharge
either Party from any obligation incurred or any breach or
failure to perform hereunder that shall have occurred prior to
the effectiveness of such termination, nor shall such
termination affect any rights and obligations of either Party
arising under the Agreement with respect to Fine Papers other
than Banded Cigarette Papers.
5.3.2 TERMINATION CHARGES
5.3.2.1 TERMINATION OF ADDENDUM BY SWM
[*****]
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SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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[*****]
5.3.2.2 TERMINATION OF ADDENDUM BY PHILIP MORRIS PURSUANT TO
ARTICLE 5.2.2
5.3.2.2.1 [*****]
5.3.2.2.2 [*****]
5.3.2.2.3 [*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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[*****]
5.3.2.2.4 [*****]
5.3.2.2.5 [*****]
5.3.2.3 TERMINATION OF ADDENDUM BY PHILIP MORRIS [*****]
[*****]
5.3.2.3.1 [*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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[*****]
5.3.2.3.2 [*****]
5.3.2.3.3 [*****]
5.3.2.4 TERMINATION OF THE AGREEMENT BY PHILIP MORRIS
[*****]
5.3.2.5 TERMINATION OF THE AGREEMENT BY SWM
5.3.2.5.1 [*****]
5.3.2.5.2 [*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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[*****]
5.3.2.5.2.1 [*****]
5.3.2.5.2.2 [*****]
[*****]
5.4 TRANSFER [*****]
Philip Morris shall be entitled to require SWM to [*****]:
5.4.1 [*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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[*****]
5.4.2 [*****]
5.4.3 [*****]
5.4.4 [*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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ARTICLE 6 - REPRESENTATIONS AND WARRANTIES
6.1 BY PHILIP MORRIS
6.1.1 Philip Morris is a corporation duly organized,
validly existing and in good standing under the laws
of the Commonwealth of Virginia.
6.1.2 Philip Morris has all requisite corporate power and
authority to execute and deliver this Addendum and to
carry out its obligations hereunder. This Addendum
constitutes the legal, valid and binding obligation
of Philip Morris, enforceable in accordance with its
terms, except to the extent enforceability may be
limited by federal and other applicable bankruptcy,
insolvency, reorganization, moratorium or similar
laws relating to or affecting the enforcement of
creditors' rights generally, now or hereafter in
effect, and subject to usual principles of equity.
Neither the execution, delivery or performance of
this Addendum by Philip Morris nor the compliance by
Philip Morris with the terms and provisions of this
Addendum will violate any Laws or will conflict with
or result in a breach of any of the terms, conditions
or provisions of the Articles of Incorporation or
Bylaws of Philip Morris or any judgment, order,
injunction, decree or ruling of any court or
governmental agency or authority to which Philip
Morris is subject or any agreement or instrument to
which Philip Morris is a party or by which it is
bound, or constitute a default thereunder.
6.1.3 To the knowledge of Philip Morris, there is no claim,
suit, action or legal, administrative, arbitration or
other proceeding or governmental investigation
pending or threatened against Philip Morris, at law
or in equity, before any federal, state, municipal or
other governmental agency or instrumentality,
domestic or foreign, that may materially affect
Philip Morris's ability to perform its obligations
under this Addendum; nor, to the best of Philip
Morris's knowledge, are there any facts which might
result in any such claim, action, suit or proceeding.
6.2 BY SWM
6.2.1 SWM is a corporation duly organized, validly existing
and in good standing under the laws of the State of
Delaware.
6.2.2 SWM has all requisite corporate power and authority
to execute and deliver this Addendum and to carry out
its obligations hereunder. This Addendum constitutes
the legal, valid and binding obligation of SWM,
enforceable in accordance with its terms, except to
the extent enforceability may be limited by federal
and other applicable bankruptcy,
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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insolvency, reorganization, moratorium or similar
laws relating to or affecting the enforcement of
creditors' rights generally, now or hereafter in
effect, and subject to usual principles of equity.
Neither the execution, delivery or performance of
this Addendum by SWM nor the compliance by SWM with
the terms and provisions of this Addendum will
violate any Laws or will conflict with or result in a
breach of any of the terms, conditions or provisions
of the Articles of Incorporation or Bylaws of SWM or
any judgment, order, injunction, decree or ruling of
any court or governmental agency or authority to
which SWM is subject or any agreement or instrument
to which SWM is a party or by which it is bound, or
constitute a default thereunder.
6.2.2 To the knowledge of SWM, there is no claim, suit,
action or legal, administrative, arbitration or other
proceeding or governmental investigation pending or
threatened against SWM, at law or in equity, before
any federal, state, municipal or other governmental
agency or instrumentality, domestic or foreign, that
may materially affect SWM's ability to perform its
obligations under this Addendum; nor, to the best of
SWM's knowledge, are there any facts which might
result in any such claim, action, suit or proceeding.
ARTICLE 7 - DEFAULT OF OBLIGATIONS
The Agreement, including this Addendum, shall be subject to
cancellation in accordance with Article XXIII of the Agreement upon the
occurrence of an Event of Default as set forth therein if such Event of
Default is not cured or corrected within the periods prescribed;
provided, however, a cancellation by either Party based on a default
not related to the delivery or supply of Cigarette Papers, including
Banded Cigarette Papers, shall not result in a right of cancellation of
the Parties' obligations with respect to Banded Cigarette Papers as set
forth in this Addendum.
The following additional Events of Default shall be applicable with
respect to this Addendum:
7.1 BY PHILIP MORRIS
7.1.1 Failure to [*****];
7.1.2 Breach of any representation or warranty made by
Philip Morris in Article 6.1 above.
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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7.2 BY SWM
7.2.1 Unexcused failure or refusal to prosecute, or delay
in the performance of, the Work;
7.2.2 Breach of any representation or warranty made by SWM
in Article 6.2 above;
7.2.3 Failure or refusal to submit to Philip Morris any
report or certificate required by Article 2 above; or
7.2.4 The inclusion of any materially false or misleading
information or representation in any report or
certificate submitted to Philip Morris in accordance
with Article 2.8.2 above.
7.3 EFFECT OF CANCELLATION
7.3.1 BY PHILIP MORRIS
7.3.1.1 If the Agreement is canceled by Philip
Morris as a result of a default by SWM with
respect to the delivery or supply of
Cigarette Papers or Banded Cigarette Papers
and such cancellation is effective [*****],
then in addition to such remedies as are
specified in Article XXIII of the Agreement,
[*****]. In addition, if and to the extent
requested by Philip Morris, SWM shall
[*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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[*****]
7.3.1.2 If the Agreement is canceled by Philip
Morris as a result of a default by SWM with
respect to the performance under the
Agreement, including this Addendum,
respecting the delivery or supply of
Cigarette Papers or Banded Cigarette Papers
and such cancellation is effective (a) after
the [*****] and prior to the expiration of
the [*****] (b) after the [*****] but
anytime after a [*****], then in addition to
such remedies as are specified in Article
XXIII of the Agreement, SWM shall be liable
to Philip Morris for the positive
difference, if any, [*****]; provided,
however, that if such cancellation by Philip
Morris results from a willful breach of the
Agreement by SWM or is as the result of a
default occurring [*****], SWM shall be
liable to Philip Morris for [*****]. In
addition, without regard to whether the
cancellation resulted from a willful breach
of the Agreement by SWM or from a default
occurring [*****], if requested by Philip
Morris, SWM shall [*****].
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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7.3.2 BY SWM
7.3.2.1 CANCELLATION PRIOR TO [*****] -- If the
Agreement is canceled by SWM effective prior
to [*****], then in addition to such
remedies as are specified in Article XXIII
of the Agreement, within 30 days after SWM
provides Philip Morris [*****], Philip
Morris shall [*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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7.3.2.2 CANCELLATION AFTER [*****] - If SWM cancels
the Addendum effective after the [*****], in
addition to SWM's remedies under Article
XXIII of the Agreement, Philip Morris shall
[*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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7.3.2.2 [*****].
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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ARTICLE 8 - GENERAL PROVISIONS
8.1 CONFIDENTIALITY
All information exchanged between the Parties pursuant to the
Joint Development Agreement, the Agreement or otherwise
pertaining to the manufacture of Banded Cigarette Papers,
Cigarettes incorporating Banded Cigarette Papers and the
process of applying integrated cellulosic bands to Cigarette
Paper using a moving orifice device shall be considered
Confidential Information subject to Article XVIII of the
Agreement.
8.2 ORDER OF PRECEDENCE
In the event of a conflict between the provisions contained in
this Addendum, the Project Documents and/or the Agreement, the
conflict shall be resolved by giving priority to the documents
as follows:
(a) the Addendum,
(b) the Project Documents,
(c) the Agreement
8.3 REPRESENTATIVES
The representatives designated below shall be the Parties'
principal contacts for all questions and problems of
administration that may arise during the performance of this
Addendum.
Philip Morris's representatives:
With respect to the Mill Upgrade Project (the "Philip Morris
Project Representative")
[*****]
Philip Morris U.S.A.
Box 26603
Richmond, Virginia 23261
With respect to purchase and sale of Banded Cigarette Papers
[*****]
Philip Morris U.S.A.
Box 26603
Richmond, Virginia 23261
SWM's representative:
With respect to the Mill Upgrade Project:
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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[*****]
[*****]
Schweitzer-Mauduit International, Inc.
100 North Point Center East
Suite 600
Alpharetta, Georgia 30022
With respect to purchase and sale of Banded Cigarette Papers:
[*****]
[*****]
Schweitzer-Mauduit International, Inc.
100 North Point Center East
Suite 600
Alpharetta, Georgia 30022
Either Party may change any representative identified above by
providing notice to the other Party.
8.4 NOTICES
All certificates and notices required or permitted under this
Addendum respecting the Mill Upgrade Project shall be given in
writing and addressed or delivered to the appropriate Philip
Morris or SWM representative specified in Article 8.3 above.
All other notices shall be given in accordance with Article
XXV of the Agreement. Any notice or communication shall be
given by hand; courier service; registered, certified, express
or first class mail (postage prepaid); telex or facsimile
("fax"). The date of receipt of any notice shall be the date
the notice shall be deemed to have been given.
8.5 ASSIGNMENT
Neither Party shall assign or transfer any of its rights or
obligations hereunder without the prior written consent of the
other Party, which consent shall not be unreasonably withheld.
8.6 NONWAIVER
The failure by either Party to demand strict performance of
the terms hereof or to exercise any right conferred hereby
shall not be construed as a waiver or relinquishment of its
right to assert or rely on any such term or right in the
future.
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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8.7 SURVIVAL OF OBLIGATIONS
All warranties, indemnities, licenses and confidentiality
rights and obligations provided herein shall survive the
expiration, termination, or cancellation of this Addendum or
the Agreement, except as otherwise expressly provided herein.
8.8 AMENDMENTS
No amendment, modification or waiver of any term hereof shall
be effective unless set forth in writing and signed by both
Parties.
8.9 SEVERABILITY
The remainder hereto shall not be voided or otherwise affected
by the invalidity of one or more of the terms herein.
8.10 TAX CONSEQUENCES
Each Party hereto has sought and received independent advice
respecting the federal and state tax treatment to be afforded
the transactions to be conducted hereunder. The obligations of
the Parties hereunder are in no way conditioned on either
Party receiving any particular tax treatment in connection
with such transactions. Neither Party shall have any liability
to the other if the tax treatment afforded such transactions
is different than the treatment assumed.
8.11 INDEPENDENT CONTRACTOR
SWM is an independent contractor for all purposes hereof. This
contract is not one of hiring under the provisions of any
workers' compensation or other laws and shall not be so
construed. Nothing herein shall be deemed to constitute a
partnership or joint venture between the Parties hereto.
8.12 INTERPRETATION
8.12.1 This Addendum, and any contract entered into pursuant
to this Addendum, shall be governed by and
interpreted in accordance with the laws of the
Commonwealth of Virginia, without regard to conflicts
of law principles.
8.12.2 Titles and section headings are for convenience of
reference only and shall not be considered in
interpreting the text of this Addendum.
8.12.3 References in the singular shall include the plural
if the context so requires.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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IN WITNESS WHEREOF, the Parties hereto have executed this Addendum, in one or
more duplicate originals, as of the date and year first above written.
PHILIP MORRIS INCORPORATED
By:
-----------------------------------
Name: Henry P. Long, Jr.
---------------------------------
Title: Vice President of Purchasing
--------------------------------
SCHWEITZER-MAUDUIT INTERNATIONAL, INC.
By:
-----------------------------------
Name: Peter J. Thompson
---------------------------------
Title: President U.S. Operations
--------------------------------
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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EXHIBIT A TRADE SECRET
ADDENDUM TO [*****] ENGINEERING DESIGN REPORT
SCOPE OF WORK AND [*****]
May 10, 1998
[*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
A-1
67
BANDED PAPERS PROJECT
Adjustment to [*****]
May 10, 1998
[*****] [*****]
- -------------------------
[*****] for Philip Morris
- -------------------------
[*****] for SWM
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SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
A-2
68
EXHIBIT B
MILESTONE SCHEDULE
[*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 B-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
69
EXHIBIT C
ASSET CLASSIFICATION NOTEBOOK
DATED JANUARY 16, 1998
COPIES PROVIDED TO
PHILIP MORRIS PROJECT MANAGER
SWM PROJECT MANAGER
SPOTSWOOD MILL MANAGER
MANAGER - CIGARETTE COMPONENTS, PHILIP MORRIS DIRECT MATERIALS
PURCHASING
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
70
ASSET CLASSIFICATION
JANUARY 16, 1998
BASED UPON [*****]
TRADE SECRET
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
71
EXHIBIT D
[*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
D-1
72
[*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
D-2
73
[*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
D-3
74
[*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH
RULE 24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
D-4
75
EXHIBIT E
PROCESS SPECIFICATION RANGES FOR BANDED CIGARETTE PAPERS
Note: Specification Ranges may be adjusted if Philip Morris and SWM agree that
broader ranges have been demonstrated to be technically feasible.
ITEM MINIMUM MAXIMUM
---- ------- -------
[*****] [*****] [*****]
[*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
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76
EXHIBIT F
CONVERSION SCHEDULE
[*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 B-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
77
EXHIBIT G
REIMBURSABLE COSTS
[*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH
RULE 24 B-2. PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
78
EXHIBIT H
[*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH
RULE 24 b-2. PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
H-1
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EXHIBIT I
[*****]
Confidential Material Appearing in this Document has been omitted and filed
separately with the Securities and Exchange Commission in Accordance with Rule
24 b-2. Promulgated under the Securities Exchange Act of 1934, as Amended.
Omitted information has been replaced with asterisks.
80
EXHIBIT J TRADE SECRET
PROJECT DOCUMENTS
EDR
April 1997 Engineering Design Report
May 10, 1998 addendum to EDR modifying scope and [*****]
Future change orders pursuant to Article 2 of the Addendum
FINAL ENGINEERING DESIGNS
Piping and instrumentation drawings
Construction drawings
Detailed equipment design drawings of MOD components
BID DOCUMENTS
Final specifications that are the basis of [*****]
PURCHASE ORDERS AND CONTRACTS
Scopes of work in all SWM purchase orders and contracts respecting
the Project
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
J-1
81
PROCESS OPERATING AND MAINTENANCE PROCEDURES
Procedures (manuals) to operate, maintain the [*****], MOD control, &
[*****] systems
Operating procedures for [*****]
PROCESS OPERATIONS CHECKOUT LIST
All equipment and process check out procedure lists used in connection
with Project
PROJECT CORRESPONDENCE
All pertinent correspondence documenting agreements and commitments of
the Parties
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
J-2
82
EXHIBIT K
BUDGET FORMAT
[*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
83
EXHIBIT L
MONTHLY PRODUCTION [*****] FORMS
[*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
84
EXHIBIT M
PRECISION OF CALCULATIONS
INPUT DATA
QUANTITY UNIT PRECISION
- -------- ---- ---------
Bobbin Length [*****] [*****]
Bobbin Width [*****] [*****]
Invoice Price [*****] [*****]
Volume [*****] [*****]
[*****] [*****] [*****]
CALCULATED DATA
QUANTITY PRECISION
- -------- ---------
All calculated values [*****]
COMPARATIVE VALUES
QUANTITY UNIT PRECISION
- -------- ---- ---------
Percentage Change(1) [*****] [*****]
[*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH
RULE 24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
M-1
85
OUTPUT DATA
QUANTITY UNIT PRECISION
- -------- ---- ---------
PRICES [*****] [*****]
[*****] [*****] [*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH
RULE 24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
M-2
86
EXHIBIT N
[*****]
[*****]
Payment Amount
--------------
[*****] [*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 B-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
N-1
87
EXHIBIT O
[*****] SPOTSWOOD MILL [*****]
MACHINE NUMBER CAPACITY IN STANDARD BOBBINS
[*****] [*****]
*Reflects [*****] if SWM [*****], i.e., no consideration in this case for
[*****] used for [*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
88
EXHIBIT P
POST COMPLETION PROJECT REPORT
[*****]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24 B-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.