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.
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Attest:
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Signature of
Employee
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Attest:
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Signature of
Employee’s Spouse
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This Agreement is executed on behalf of the
Company.
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Attest:
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PMI Global
Services Inc.
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By:
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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.
2
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