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EMPLOYEE GRANTOR TRUST ENROLLMENT AGREEMENT

Trust Agreement

EMPLOYEE GRANTOR TRUST ENROLLMENT AGREEMENT | Document Parties: PHILIP MORRIS INTERNATIONAL INC. | Altria Group, Inc | PMI Global Services Inc You are currently viewing:
This Trust Agreement involves

PHILIP MORRIS INTERNATIONAL INC. | Altria Group, Inc | PMI Global Services Inc

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Title: EMPLOYEE GRANTOR TRUST ENROLLMENT AGREEMENT
Governing Law: New York     Date: 2/26/2009

EMPLOYEE GRANTOR TRUST ENROLLMENT AGREEMENT, Parties: philip morris international inc. , altria group  inc , pmi global services inc
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Exhibit 10.31

P HILIP M ORRIS I NTERNATIONAL

E MPLOYEE G RANTOR T RUST E NROLLMENT A GREEMENT

This agreement (“Agreement”) is made the      day of                  , 2008, between                          (the “Employee”), the person, if any, to whom the Employee is legally married (the “Employee’s Spouse”), PMI Global Services Inc. (“PMIGS”) and those affiliates of PMIGS that are or become obligated to the Employee under the terms of the PMI Supplemental Plans or the SEP, as defined below (PMIGS and such affiliates collectively referred to hereinafter as the “Company”).

Introduction

The Employee previously entered into one or more Employee Grantor Trust Enrollment Agreements with Altria Group, Inc. or certain of its affiliates (collectively, “Altria”) providing for payments (“Funding Payments”) to or on behalf of the Employee by Altria in satisfaction of its obligations under certain supplemental plans maintained by Altria (the “Altria Supplemental Plans”), such payments to be made to an Employee Grantor Trust established by the Employee (the “Trust”). (The most recent such Employee Grantor Trust Enrollment Agreement referred to above, including any amendments thereto, shall be referred to hereinafter as the “Original Enrollment Agreement.”) Thereafter, pursuant to one or more Supplemental Employee Grantor Trust Enrollment Agreements between the Employee and Altria (the most recent of which, including any amendments thereto, hereinafter referred to as the “Supplemental Enrollment Agreement”), the Employee ceased accruing future benefits under the Altria Supplemental Plans as of January 1, 2005, and Altria made certain additional payments (“Target Payments”) to the Trust as current compensation for services rendered by the Employee.

Trust amounts that are attributable to deposits made pursuant to the terms of the Original Enrollment Agreement and any predecessors thereto are held in a subaccount of the Trust (“Trust


Account FP”), and amounts attributable to Target Payments are held in a separate subaccount (“Trust Account TP”). For certain purposes, Trust Account FP is also deemed to include amounts that have been credited to an assumed trust account (“Assumed Trust Account FP”) reflecting certain withholding amounts with respect to Funding Payments and certain other amounts and the earnings thereon. Likewise, pursuant to the Supplemental Enrollment Agreement, the Employee’s share of federal employment taxes on Target Payments and certain other amounts and the earnings thereon have been credited to a separate assumed trust account (“Assumed Trust Account TP”).

PMIGS subsequently established the Philip Morris International Benefit Equalization Plan and the Philip Morris International Supplemental Management Employees’ Retirement Plan (the “PMI Supplemental Plans”) and the Philip Morris International Supplemental Equalization Plan (the “SEP”). In connection with the spin-off of the Company from Altria, the liabilities attributable to the Employee under the Altria Supplemental Plans were transferred to the Company, and the benefits previously payable to the Employee under the Altria Supplemental Plans became payable to the Employee under the PMI Supplemental Plans.

The parties now wish to enter into this Agreement which (i) supersedes the Original Enrollment Agreement in its entirety and, together with the Employee Grantor Trust Agreement attached hereto as Exhibit A (the “Trust Agreement”), shall govern the application of amounts credited under Trust Account FP and Assumed Trust Account FP to the Company’s obligations under the PMI Supplemental Plans, (ii) supersedes any provision of the Supplemental Enrollment Agreement that is also addressed herein and (iii) provides for the Employee’s participation in the SEP.

 

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In consideration of their mutual undertakings, the Company, the Employee and the Employee’s Spouse agree as follows:

I. Maintenance of Grantor Trust and Assumed Trust Accounts

1.1 The Employee agrees to restate and maintain the Trust in the form attached hereto as Exhibit A for the purpose of holding the deposits previously made pursuant to the Original Enrollment Agreement and the Supplemental Enrollment Agreement and any interest or other earnings on the outstanding balances in the Trust.

1.2 The Employee and the Employee’s Spouse, if any, agree that they will not contribute any additional funds to the Trust. The Employee and the Employee’s Spouse further agree that they will withdraw funds from Trust Account FP only in accordance with the terms of the PMI Supplemental Plans, except to the extent that withdrawals are necessary to pay taxes on Trust Account FP earnings or cash deposits, and will withdraw funds from Trust Account TP only in accordance with the terms of the Trust Agreement.

1.3 The Employee and the Employee’s Spouse, if any, understand that, under the terms of the Trust Agreement, the trustee of the Trust (the “Trustee”) intends to exercise its investment discretion in a manner consistent with the purpose of the Trust specified in Section I.(3) of the Trust Agreement and acknowledge that they have been informed that the Trustee currently intends to invest the assets of the Trust in one or more of the Fidelity Freedom Funds in the manner set forth in Item 3 of Schedule A of the Trust Agreement attached as Exhibit A, but that the Trustee retains discretion to change the assets in which the Trust will be invested.

1.4 The Employee and the Employee’s Spouse, if any, agree that Assumed Trust Account FP and Assumed Trust Account TP previously maintained by Altria or its designee pursuant to the Original Enrollment Agreement and the Supplemental Enrollment Agreement will be maintained by PMIGS. The amounts credited under Assumed Trust Account FP and

 

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Assumed Trust Account TP will be (a) adjusted each year by the amount each such assumed account would have earned or lost if the balance credited thereto had been invested in the same manner as the corresponding actual trust account ( i.e. , Trust Account FP or Trust Account TP, as applicable) and (b) reduced each year by the amount of federal, state, local and other applicable income taxes, if any, that the Administrator estimates (using the tax-rate assumptions set forth in Exhibit B) would have been due with respect to such assumed account if it held the actual assets that it is treated as holding pursuant to this Section. If at any time no amounts are held in Trust Account TP, amounts credited under Assumed Trust Account TP shall be adjusted for gains or losses as if the balance credited thereto had been invested in the same manner as Trust Account FP (and reduced for taxes as described above).

II. Distributions from Trust, Benefit Payments

2.1 The Employee and the Employee’s Spouse, if any, agree that any amounts paid from Trust Account FP including any earnings (other than any amounts distributed to pay taxes on the earnings of Trust Account FP or administrative expenses of the Trust) and the amounts credited to Assumed Trust Account FP (adjusted as provided in Section 1.4) shall offset the benefits otherwise payable to them under the PMI Supplemental Plans in such order as shall be determined by the Company. For purposes of calculating this offset, the amount otherwise payable under the PMI Supplemental Plans at the relevant time to the Employee or his beneficiary(ies) under the PMI Supplemental Plans (“Plan Beneficiary(ies)”) will be converted to an after-tax amount (the “After-Tax Benefit”) using the tax assumptions set forth in Exhibit B. The amount of any distribution from Trust Account FP plus the amount credited to Assumed Trust Account FP shall offset the amount of the After-Tax Benefit and shall discharge the Company’s liability to the Employee, the Employee’s Spouse, if any, and his Plan Beneficiary(ies) to the

 

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extent of the corresponding pre-tax benefit otherwise payable under the PMI Supplemental Plans.

2.2 If the amounts distributed from Trust Account FP plus the amounts credited to Assumed Trust Account FP are less than the After-Tax Benefit, the difference between (i) the sum of the amounts distributed from Trust Account FP and the amounts credited to Assumed Trust Account FP and (ii) the After-Tax Benefit shall be converted to a pre-tax amount (the “Additional Pre-Tax Benefit”) based on the tax assumptions set forth in Exhibit B, and the Company shall pay an amount equal to the Additional Pre-Tax Benefit to the Employee, the Employee’s Spouse, if any, or his Plan Beneficiary(ies) from the Company’s general assets in satisfaction of the Company’s remaining obligations under the PMI Supplemental Plans.

2.3 The Employee and the Employee’s Spouse understand and agree that to the extent funds in Trust Account FP are distributed to either of them in amounts greater than, or at times earlier than, those contemplated by the benefit payment provisions of the PMI Supplemental Plans and by Section 2.1 hereof, (a) the offsets against any amounts otherwise payable under the PMI Supplemental Plans will be calculated in the manner set forth in Section 5.1 as if the amounts so distributed had remained in Trust Account FP, accumulated earnings and been distributed at the proper time; and (b) such offsets will discharge the Company’s liability in the same manner as set forth in such Section 5.1.

2.4 Under no circumstances whatsoever shall the Company or the Administrator have any interest in, or be entitled to receive, any of the Trust assets. Notwithstanding any provision of this Agreement, to the extent that any such assets are recovered by the Company (or any trustee, creditor or other representative of the Company or its estate)

 

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(a) from Trust Account FP, the offsets against amounts otherwise payable under the PMI Supplemental Plans will be calculated as if such assets had not been deposited in the Trust; and

(b) from Trust Account TP, the amounts credited to Trust Account TP and Assumed Trust Account TP shall be determined as if such assets had not been deposited in the Trust.

2.5 If a person who is an Employee’s Spouse under this Agreement ceases to be legally married to the Employee, he or she shall cease to be the Employee’s Spouse hereunder and shall cease to have any right to benefits under the PMI Supplemental Plans other than any rights as a designated beneficiary under the Trust Agreement or as provided in a domestic relations order or other court order. Furthermore, if the Employee has at any future date a spouse other than the Employee’s Spouse named in this Agreement, the Employee shall obtain the agreement of such spouse to the terms and provisions of this Agreement, and the new spouse shall become the Employee’s Spouse for purposes of this Agreement.

2.6 If there is outstanding on the date of this Agreement any domestic relations or other court order requiring the Company to make payment of benefits under any PMI Supplemental Plan to a former spouse or dependent of the Employee, the payee of such benefits shall not be an Employee’s Spouse under this Agreement and such benefits shall remain payable in the manner contemplated by such order.

2.7 If the Employee becomes disabled and, as a result, becomes entitled to long term disability benefits that on the Employee’s attaining a prescribed age are reduced by amounts paid under the PMI Supplemental Plans, then the reduction in such long term disability benefits shall be computed by taking into account the annuity value of the pre-tax equivalent of the amounts

 

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credited under Trust Account FP and Assumed Trust Account FP, as well as the annuity value of any remaining amounts payable under the PMI Supplemental Plans after reduction by Trust Account FP and Assumed Trust Account FP, using the actuarial assumptions employed at the attainment of such prescribed age under the relevant PMI Supplemental Plans to convert between single sum amounts and their annuity value equivalents.

2.8 If the Employee dies and as a result the Employee’s Spouse becomes entitled to benefit payments under the Philip Morris International Survivor Income Benefit Equalization Plan (“SIB Payments”) that would be reduced by amounts payable under the PMI Supplemental Plans, then the reduction in such SIB Payments shall be computed by taking into account the annuity value of the pre-tax equivalent of Trust Account FP and Assumed Trust Account FP as well as the annuity value of any remaining amounts payable under the PMI Supplemental Plans after reduction by Trust Account FP and Assumed Trust Account FP, using the actuarial assumptions employed under the relevant PMI Supplemental Plan at the date the SIB Payments would first be reduced by benefit payments otherwise payable under such PMI Supplemental Plans to convert between single sum amounts and their annuity value equivalents.

III. Tax Payments With Respect to Trust Earnings

Each year, assets will be distributed from Trust Account FP and Trust Account TP to the Employee (or the Employee’s Spouse or beneficiary(ies) under the Trust, if applicable) to provide the Employee (or the Employee’s Spouse or beneficiary(ies) under the Trust) with the amounts estimated by the Administrator, using the tax-rate assumptions set forth in Exhibit B, to be sufficient to pay federal, state, local and other applicable income taxes with respect to any earnings of Trust Account FP and Trust Account TP.

 

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IV. Appointment of PMIGS as Agent

4.1 The Employee appoints PMIGS and such persons as may be designated to act on behalf of PMIGS, and removes Altria or any of its affiliates, as applicable, as his or her duly authorized agent for the following purposes: (a) providing, in accordance with the duties of the “Administrator” as set forth in the form of Trust Agreement attached as Exhibit A, information and direction to the Trustee; (b) removing the Trustee and appointing a successor trustee; (c) examining the books and records of the Trust; (d) amending the Trust as to ministerial matters (and as to other matters, with the consent of the Employee); and (e) terminating the Trust.

4.2 The Employee’s appointment of PMIGS as his or her agent is based on the Employee’s special trust and confidence in PMIGS, its management and its parent corporation, Philip Morris International Inc. In the event of a Change of Control (as defined in Section 8.6) of PMIGS or Philip Morris International Inc., the Employee (or, if applicable, the Employee’s Spouse, Plan Beneficiary(ies) or beneficiary(ies) under the Trust Agreement) may remove PMIGS (or its successor) and any designee of PMIGS as the duly authorized agent for purposes of carrying out the actions set forth in Section 4.1 by delivering to both PMIGS (or its successor) and the Trustee, within any period of two days, written notice of such removal. The Trustee shall not be required to verify that there has been a Change of Control and shall be entitled to rely upon the Employee’s notice of removal unless PMIGS provides to the Trustee (within 10 days following the Trustee’s receipt of the notice of removal from the Employee) written notice certifying that no Change of Control has occurred.

4.3 PMIGS shall cease to be the Employee’s agent upon termination of the Trust for any reason or upon removal of PMIGS as Administrator following a Change of Control as provided in Section 4.2 above.

 

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4.4 From and after the date on which PMIGS (or its successor) ceases to serve as the duly authorized agent,

(a) the offsets against the Company’s obligations to the Employee and the Employee’s Spouse or Plan Beneficiary(ies) shall be determined by assuming (i) that the value of Trust Account FP assets (including amounts credited to Assumed Trust Account FP) last reported by the Trustee to PMIGS (or its successor) prior to such date is accumulated with earnings in the manner specified in Section 5.1 for assets that have been attached or alienated and (ii) that all subsequent distributions from Trust Account FP (including amounts credited to Assumed Trust Account FP) occur at the proper times and in the proper amounts; and

(b) the amount held in Trust Account TP immediately prior to such Change of Control shall be credited to Assumed Trust Account TP, the balance in Trust Account TP shall thereafter be deemed to be zero, and the balance of Assumed Trust Account TP shall thereafter be credited with earnings in the manner specified in Section 5.1 for assets that have been attached or alienated.

V. Attachment of Trust Assets

5.1 The Employee understands and agrees that in the event all or a portion of the funds in Trust Account FP are attached by court order or other legal process or are otherwise alienated, the offset against any amounts otherwise payable under the PMI Supplemental Plans will be calculated as if the amount so alienated remained in the Trust, had accumulated earnings as determined below, was distributed at the proper time, and was or is to be offset against benefits otherwise payable from the PMI Supplemental Plans before any remaining assets in Trust Account FP were or are distributed. For purposes of determining the earnings on amounts so attached or alienated, it shall be assumed that such amounts continued to be invested by the Trustee in the same manner in which the Trustee invests the assets held in a Trust subaccount

 

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established by a similarly situated employee of the Company (a “Similarly Situated Trust”), and if at any time the Trustee reinvests the assets of such a Similarly Situated Trust, it shall be assumed that the assets attributable to the Employee have been reinvested in the same manner. If at any time there is no Similarly Situated Trust but the Trustee is investing the assets of other Trusts or Trust subaccounts in the manner set forth in Item 3 of Schedule A of the Employee Grantor Trust Agreement attached as Exhibit A (or in any other manner permitting objective determination how the Trustee would invest the assets of a Similarly Situated Trust), it shall be assumed for this purpose that the assets attributable to the Employee have been invested in the same manner. For any year (or portion thereof) during which there is no Similarly Situated Trust and the manner in which such assets would be invested cannot be determined by reference to Item 3 of Schedule A of Exhibit A or as otherwise provided above, then the amounts so alienated shall be deemed to earn interest at the of the first segment rate under Internal Revenue Code Section 417(e)(3) for the month of December of the preceding year. Any such deemed earnings shall be reduced by federal, state and local income taxes as determined using the tax assumptions set forth in Exhibit B. The Employee agrees that the value of any amounts so alienated, and the earnings that would have accumulated thereon, shall be offset against a like amount of After-Tax Benefit, and shall discharge the Company’s liability to the Employee to the extent of the corresponding pre-tax benefit otherwise payable to the Employee or his Spouse or Plan Beneficiary(ies).

5.2 The Employee’s Spouse, if any, understands and agrees that should any amounts under Trust Account FP be assigned to her under a domestic relations order or otherwise, the offset against any amounts otherwise payable under the PMI Supplemental Plans will be calculated in the manner set forth in Section 5.1 as if the amount so alienated had remained in the

 

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Trust, accumulated earnings, and been distributed at the proper time. The Employee’s Spouse agrees that if she also claims entitlement to benefits under the PMI Supplemental Plans, the value of the amount alienated under Trust Account FP, and the earnings that would have accumulated thereon absent such alienation, shall be offset against a like amount of After-Tax Benefit, and shall discharge the Company’s liability to the Employee and the Employee’s Spouse to the extent of the corresponding pre-tax benefit otherwise payable to the Employee or the Employee’s Spouse under the Supplemental Plans.

5.3 In the event that all or a portion of the funds in Trust Account TP are attached by court order or other legal process or are otherwise alienated to third parties, the amount so attached will be credited to Assumed Trust Account TP as of the date such amounts are removed from the Trust Account TP. The Employee and the Employee’s Spouse further understand and agree that should any amount under Trust Account TP be assigned to the Employee’s Spouse or any other person under any domestic relations order or otherwise, the Employee’s Spouse agrees that such amounts shall not be payable under such order until the benefit of the Employee or the Employee’s Spouse or beneficiary(ies) is payable under the SEP.

VI. Philip Morris International Supplemental Equalization Plan

6.1 The Employee agrees to participate in the SEP with respect to service performed after December 31, 2007 and acknowledges that the Company will make no Target Payments with respect to service performed after such date. The Employee further acknowledges and agrees that the Employee will accrue no benefits under the PMI Supplemental Plans or the Altria Supplemental Plans with respect to service performed after December 31, 2004.

6.2 The Employee and the Employee’s Spouse agree that if any amounts are paid from Trust Account TP (other than for the payment of taxes or administrative expenses) before the value of Trust Account TP is taken into account for purposes of determining the benefits

 

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payable under the SEP (and such amounts are not otherwise credited to Assumed Trust Account TP pursuant to this Agreement), the amounts so paid shall be credited to Assumed Trust Account TP at the time paid.

VII. Termination

7.1 This Enrollment Agreement shall terminate 30 days after the date the Trust terminates and all amounts are paid under PMI Supplemental Plans and the SEP.

7.2 Notwithstanding the above, during the lifetime of the Employee, this Agreement may be terminated at any time by the Company upon providing 30 days written notice to the Employee, or by the Employee providing 30 days written notice (or such lesser period as PMIGS may prescribe) to PMIGS . Any such termination shall operate on a prospective basis only and shall not operate to release the funds already in the Trust or to otherwise alter the application of the terms of this Agreement to such funds.

VIII. Miscellaneous

8.1 The Employee and the Employee’s Spouse agree that this Agreement shall supersede the Original Enrollment Agreement in its entirety and shall supersede any provision of the Supplemental Enrollment Agreement that is also addressed herein. The Employee and the Employee’s Spouse further agree that because all liabilities under the Altria Supplemental Plans have been transferred to the Company, Altria shall have no further obligations to them under the Altria Supplemental Plans, the Original Enrollment Agreement, the Supplemental Enrollment Agreement or any predecessors thereto.

8.2 Nothing in this Agreement shall be construed to confer upon the Employee the right to continue in the employment of the Company, or to require the Company to continue the employment of the Employee.

 

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8.3 This Agreement shall be binding upon and inure to the benefit of the Company, its successors and assigns and the Employee, the Employee’s Spouse, if any, the Employee’s Plan Beneficiary(ies) and beneficiary(ies) under the Trust Agreement and the SEP and their heirs, executors, other successors in interest, administrators, and legal representatives.

8.4 The validity and interpretation of this Agreement shall be governed by the laws of the State of New York.

8.5 The Employee’s Plan Beneficiary shall be the person or persons the Employee has designated to receive benefits following the Employee’s death under any defined contribution portion of a PMI Supplemental Plan, and the Employee’s beneficiary(ies) with respect to the Trust shall be determined in accordance with the terms of the Trust Agreement pursuant to which the Trust is maintained.

8.6 Change of Control . For the purpose of this Agreement, a “Change of Control” shall mean:

(a) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either (i) the then outstanding shares of common stock of Philip Morris International Inc. (the “Outstanding Company Common Stock”) or (ii) the combined voting power of the then outstanding voting securities of Philip Morris International Inc. entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that the following acquisitions shall not constitute a Change of Control: (i) any acquisition directly from Philip Morris International Inc. or any corporation or other entity controlled by Philip Morris International Inc. (the “Affiliated Group”) (ii) any

 

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acquisition by a member of the Affiliated Group, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by a member of the Affiliated Group or (iv) any acquisition by any corporation pursuant to a transaction which complies with clauses (i), (ii) and (iii) of subsection (c) of this Section 8.6; or

(b) Individuals who, as of the date hereof, constitute the Board of Directors of Philip Morris International Inc. (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by Philip Morris International Inc.’s shareholders was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or

(c) A reorganization, merger, share exchange or consolidation (a “Business Combination”), in each case, unless, following such Business Combination, (i) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 60% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns such

 

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shares and voting power through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding any employee benefit plan (or related trust) of any member of the Affiliated Group or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 40% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation except to the extent that such ownership existed prior to the Business Combination and (iii) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement or at the time of the action of the Board providing for such Business Combination or were elected, appointed or nominated by the Board; or

(d) A (i) complete liquidation or dissolution of Philip Morris International Inc. or (ii) sale or other disposition of all or substantially all of the assets of Philip Morris International Inc., other than to a corporation, with respect to which following such sale or other disposition, (A) more than 60% of, respectively, the then outstanding shares of common stock of such corporation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such sale or other disposition in substantially the same proportion as their ownership, immediately prior to such sale or other disposition, of

 

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the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (B) less than 40% of, respectively, the then outstanding shares of common stock of such corporation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially owned, directly or indirectly, by any Person (excluding any employee benefit plan (or related trust) of any member of the Affiliated Group or such corporation), except to the extent that such Person owned 40% or more of the Outstanding Company Common Stock or Outstanding Company Voting Securities prior to the sale or disposition and (C) at least a majority of the members of the board of directors of such corporation were members of the Incumbent Board at the time of the execution of the initial agreement or at the time of the action of the Board providing for such sale or other disposition of assets of Philip Morris International Inc. or were elected, appointed or nominated by the Board; or

(e) the entry of an order for relief against Philip Morris International Inc. as debtor in a case under the United States Bankruptcy Code, as amended; or Members of the Affiliated Group cease to own, directly or indirectly, more than 60% of the combined voting power of the then outstanding voting securities of PMIGS entitled to vote generally in the election of directors of PMIGS, unless all of the services to be provided by PMIGS as Administrator hereunder are provided by another member of the Affiliated Group.

8.7 If no Employee’s Spouse signs this Agreement, the Employee hereby certifies that he or she has no spouse as of the date of this Agreement and further agrees to obtain the signature of any spouse to whom he or she may become married in the future as a party to this Agreement.

 

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8.8 It is understood and agreed that all rights and obligations arising out of this Agreement relating to any spouse, Plan Beneficiary, beneficiary(ies) under the Trust Agreement, beneficiary(ies) under the SEP or any other third parties are derived from the rights of the Employee under this Agreement and that all provisions of this Agreement relating to any such third parties are to be construed as binding on such third parties as if they had expressly agreed in writing to such provisions.

8.9 This Agreement shall not be construed to enlarge the obligations of any participating employer under the terms of the PMI Supplemental Plans or the SEP.

IN WITNESS WHEREOF, the Employee, the Employee’s Spouse and PMIGS have caused this Agreement to be executed as of the day and year first above written.

 

Attest:

    

  

 

    

 

    

Signature of Employee

Attest:

    

  

 

    

 

    

Signature of Employee’s Spouse

 

This Agreement is executed on behalf of the Company.

 

Attest:

    

  

    

PMI Global Services Inc.

 

    

By:

  

 

Attachments:

Exhibit A: Amended and Restated Employee Grantor Trust Agreement

Exhibit B: Tax Assumptions

 

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E XHIBIT A

P HILIP M ORRIS I NTERNATIONAL

A MENDED AND R ESTATED E MPLOYEE G RANTOR T RUST A GREEMENT

T HIS T RUST A GREEMENT made the      day of          , 2008, between                                          (hereinafter called the “Grantor”) and F IDELITY M ANAGEMENT T RUST C OMPANY (hereinafter called the “Trustee”),

W I T N E S S E T H   T H A T :

W HEREAS , the Grantor previously established a trust (hereinafter referred to as the “Trust Fund”) pursuant to one or more trust agreements to hold (i) certain cash payments (“Funding Payments”) received by the Grantor, or by the Trustee on behalf of the Grantor, in lieu of certain future payments the Grantor would otherwise be entitled to receive from Altria Group, Inc. or its subsidiaries (“Altria”) pursuant to the terms of certain nonqualified supplemental benefit plans maintained by Altria (the “Altria Supplemental Plans”), (ii) certain other cash payments (“Target Payments”) of current compensation made by Altria and (iii) the earnings on such amounts; and

W HEREAS , Altria’s liability with respect to the Grantor under the Altria Supplemental Plans has been transferred to Philip Morris International Inc. (“PMI”) and certain of its subsidiaries (collectively, the “Company”) in connection with the spin-off of PMI from Altria and the benefits previously payable to the Grantor under the Altria Supplemental Plans will be payable to the Grantor under the Philip Morris International Benefit Equalization Plan and, if applicable, the Philip Morris International Supplemental Management Employees’ Retirement Plan (hereinafter referred to as the “PMI Supplemental Plans”); and

W HEREAS , the Grantor has entered into an agreement with the Company appointing PMI Global Services Inc. (“PMIGS”), rather than Altria or any of its subsidiaries, to act as the Grantor’s agent in connection with certain matters pertaining to the administration of the Trust Fund and specifying (i) the manner and extent to which amounts attributable to Funding Payments paid from the Trust Fund will reduce the payments the Grantor would otherwise be entitled to receive pursuant to the terms of the PMI Supplemental Plans or from other arrangements with the Company and otherwise modifying the application of the PMI Supplemental Plans with respect to the Grantor, and (ii) certain terms concerning the distribution of amounts attributable to Target Payments held in the Trust Fund; and

W HEREAS , the Grantor and the Trustee desire to restate the terms and conditions under which the Trust Fund is held;

N OW , T HEREFORE , in consideration of the premises and covenants herein contained, the Grantor hereby directs the Trustee to maintain the Trust Fund pursuant to the provisions of this Agreement and to have and to hold the Trust Fund together with any additions thereto upon the following express trust and with the powers, authorities and discretions hereinafter conferred:


A RTICLE I

Introduction

I. (1). Name . This agreement and the trust hereby evidenced may be referred to as the Grantor’s “Employee Grantor Trust.”

I. (2). The Trust Fund . The “Trust Fund” as at any date means all property then held by the Trustee under this agreement. The Trust Fund includes two subaccounts: (i) “Trust Account FP,” which holds amounts designated by the Administrator as Funding Payments and the earnings thereon, and (ii) “Trust Account TP,” which holds amounts designated by the Administrator as Target Payments and the earnings thereon.

I. (3). Purpose of the Trust . In entering into this agreement, the Grantor intends for the Trust Fund to be invested solely to augment the savings of the Grantor that will be fully and immediately available at Grantor’s expected retirement age. To that end, in determining the appropriate investment strategy for the Trust Fund, the Grantor expressly authorizes the Trustee to take into consideration only the Grantor’s age and the Grantor’s expected age of retirement and agrees that, for this purpose, the Grantor’s expected age of retirement shall be assumed to be the age determined under the table set forth as Item 3 of Schedule A annexed hereto. The Trustee shall have no duty to inquire into or to consider any other needs of the Grantor in determining the appropriate investment strategy for the Trust Fund, including, but not limited to, any other resources available to the Grantor; any other assets the Grantor may own or have an interest in; the Grantor’s risk tolerance; the Grantor’s investment experience and attitudes; and the Grantor’s needs for liquidity, regularity of income, and preservation or appreciation of capital prior to the termination of the Trust. Neither shall the Trustee have a duty to inquire into or consider any other needs (including but not limited to those referred to in the immediately preceding sentence) of the Grantor’s Beneficiary(ies). The Trustee may rely on the Grantor’s age and the Grantor’s expected age of retirement as set forth or determined under such Schedule A, and shall have no duty to inquire into the validity of such information. The Trustee shall incur no liability to the Grantor or any other person interested in the Trust Fund for reliance upon the express terms of this paragraph, or for any action or omission in reliance upon information provided on Schedule A or by the Administrator (as defined in Section I.(5) below).

I. (4). Status of the Trust . The trust shall be irrevocable until such time as the Grantor (or, in the event of the Grantor’s death, the Grantor’s Beneficiary(ies), as defined in Section I.(8) below) and the Administrator jointly provide written certification to the Trustee that all obligations of the Company to the Grantor and the Grantor’s Beneficiaries have been satisfied. The written certification of the Administrator shall specify the date as of which the trust shall terminate in accordance with Section I.(7) hereof. The trust is intended to constitute a grantor trust under which the Grantor is treated as grantor and owner pursuant to Sections 671- 678 of the Internal Revenue Code of 1986, as amended, and shall be construed accordingly. Neither the Company nor any person other than the Grantor and, in the event of the Grantor’s death, the Grantor’s Beneficiary(ies), and the Trustee acting as such, have any right, title or interest in the assets of the Trust Fund.

 

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I. (5). The Administrator . PMIGS shall be the “Administrator” for purposes of this trust and shall have certain powers, rights and duties under this agreement as described below; provided that, PMIGS may from time to time designate a person or persons, who may but need not be employees of PMIGS, to act as the Administrator on its behalf or to carry out certain duties of the Administrator. PMIGS will certify to the Trustee from time to time the person or persons authorized to act on behalf of PMIGS as the Administrator or as the designees of the Administrator. The Trustee may rely on the latest certificate received without further inquiry or verification. After delivery to the Trustee of the written certification of PMIGS acting as Administrator referred to in the first sentence of Section I.(4) above, and as of the scheduled termination date of the trust referred to in Section I.(7) below or at such later date as the distribution of all assets of the Trust Fund pursuant to the termination of this trust is completed, PMIGS and its designees, if any, shall cease to serve as Administrator. Notwithstanding any provision herein, however, in the event of a Change of Control (as defined in Schedule B annexed hereto or in the most recent replacement for such Schedule delivered by the Administrator to the Trustee at least ten business days prior to the occurrence of a Change of Control), the Grantor may remove PMIGS (or its successor) and any designee of PMIGS as Administrator by delivering to both PMIGS (or its successor) and the Trustee within any period of two days written notice of such removal. The Trustee may rely upon any notice of removal received from the Grantor without further inquiry or verification, unless PMIGS (or its successor) provides to the Trustee (within 10 days following the Trustee’s receipt of the notice of removal from the Grantor) written notice certifying that no Change of Control has occurred. In the event the Grantor removes PMIGS as Administrator, the Grantor shall appoint a successor Administrator, who may be the Grantor, a committee of persons including the Grantor, or such other person or persons as shall be reasonably acceptable to the Trustee, and shall notify the Trustee of the appointment. In such event, the Grantor shall also have the authority to, from time to time, remove the person or persons so appointed and appoint such other person or persons as shall be reasonably acceptable to the Trustee.

I. (6). Acceptance . The Trustee accepts the duties and obligations of the “Trustee” hereunder, agrees to accept funds delivered to it o


 
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