AGREEMENT
AGREEMENT, effective the 30th day of April, 1999, between Philip Morris
Companies Inc., a corporation organized and existing under the laws of the
Commonwealth of Virginia, (the "Company") and Murray H. Bring (the
"Consultant").
WHEREAS, Consultant is currently employed by the Company, holds the
position of Vice Chairman, External Affairs and General Counsel and provides the
Company with general business advice and expert legal counsel;
WHEREAS, the Company wishes to retain the services of Consultant as a
consultant after his retirement from the Company on the terms herein provided;
WHEREAS, Consultant is willing to provide consulting services to the
Company on the terms herein provided;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties agree as follows:
1) During the three-year term commencing May 8, 2000 and ending May 7,
2003 (the "Consulting Term"), Consultant shall make himself available
at reasonable times to provide business consulting services to the
officers, directors and other representatives of the Company as
reasonably requested by the Chairman and Chief Executive Officer of
the Company (hereafter, the "Executive"). It is understood that this
paragraph will require Consultant to provide consultation regarding
strategic planning initiatives and other aspects of the Company's
business which may require the Company to disclose to Consultant
secret, proprietary and confidential information concerning the
Company and its business affairs. It is further understood that this
undertaking shall not, without Consultant's consent, require his
presence outside of the Metropolitan New York City area.
2) For the consulting services provided pursuant to paragraph 1, the
Company shall pay Consultant an annual retainer of $50,000, payable at
the end of each year of the Consulting Term, and provide Consultant at
Company expense the following:
a) an office in New York City, appropriate secretarial service, all
necessary office supplies, and appropriate furniture and
decorative items for such office;
b) the security arrangements currently in existence or their
equivalent at Consultant's residences in New York City and on
Long Island, New York;
c) reasonable access to Company facilities, including the Dining
Rooms, Fitness Center and the Company doctor;
d) $10,000 of financial counseling for the year 2000;
e) use of a telephone calling card; and
f) a Company car, garage expenses for a Company-provided car, and
Company-paid driver or assistance in obtaining automobile or
limousine transportation when Consultant reasonably requests it.
Any cost incurred by the Company in this regard shall be limited
to and applied against the retainer provided for in this
paragraph 2. Any transportation costs in excess of the retainer
provided for in this paragraph 2 shall be borne by Consultant.
3) This Agreement and the provisions of paragraphs 1 and 2 above may be
renewed for an additional three-year term, at the election of
consultant with the concurrence of the Company. Consultant shall
inform the Senior Vice President, Human Resources and Administration,
Philip Morris Companies Inc. in writing sixty (60) days prior to the
expiration of the Consulting Term whether he wishes to renew the
Consulting Term and provide the consulting services described in
paragraph 1 above for an additional three-year term.
4) In addition to and concurrently with the business consulting services
provided pursuant to paragraph 1 above, Consultant agrees to provide
legal consulting services to the officers, directors and other
representatives of the Company as reasonably requested by the
Executive for a period of one year beginning May 8, 2000, which
one-year term may be renewed for two (2) successive one-year terms at
Consultant's sole election. Consultant shall inform the Senior Vice
President, Human Resources and Administration, Philip Morris Companies
Inc. in writing sixty (60) days prior to the expiration of each
one-year term provided for in this paragraph 4 whether he wishes to
renew the term and provide the required legal consulting services for
an additional one-year term. Consultant shall not, without his
consent, be required to be available to provide services pursuant to
this paragraph for more than 400 hours in any one-year term.
5) For the legal consulting services provided pursuant to paragraph 4,
the Company shall pay or provide, as applicable, to Consultant the
following:
a) a quarterly retainer of $50,000, payable as of the commencement
of the one-year term beginning May 8, 2000 and continuing
quarterly thereafter for each quarterly period Consultant is
obligated to provide legal consulting services pursuant to
paragraph 4, provided that (i) Consultant has provided legal
consulting services as reasonably requested in accordance with
paragraph 4 for the immediately preceding quarterly period and
(ii) with respect to the one-year term beginning May 8, 2001,
Consultant has elected to renew the initial
2
one-year term referenced in paragraph 4 and (iii) with respect to
the one-year term beginning May 8, 2002, Consultant has elected
to renew the second successive one-year term referenced in
paragraph 4;
b) a cellular telephone and fax machine; the cost of maintaining two
(2) cellular telephone lines and one (1) fax telephone line; and
the cost of a fax machine maintenance agreement; and
c) a Deferred Stock Award (the "Award"), to be awarded as of the
effective date of this Agreement, with respect to 75,000 shares
(the "Shares") of the Common Stock of the Company (the "Common
Stock"), subject to the following terms and conditions:
(i) The Award shall vest and the Shares shall be issued and
distributed to Consultant in accordance with the following
schedule:
NUMBER OF SHARES VESTING/DISTRIBUTION DATE
25,000 May 7, 2001
25,000 May 7, 2002
25,000 May 7, 2003
provided that (A) with respect to Shares scheduled to vest in
2001, Consultant has provided legal consulting services as
reasonably requested in accordance with paragraph 4, (B) with
respect to Shares scheduled to vest in 2002, Consultant has
elected to renew the initial one-year term referenced in
paragraph 4 and has provided legal consulting services as
reasonably requested in accordance with paragraph 4 for the
period May 8, 2001 through May 7, 2002 and (C) with respect to
Shares scheduled to vest in 2003, Consultant has elected to renew
for the second successive one-year renewal term referenced in
paragraph 4 and has provided legal consulting services as
reasonably requested in accordance with paragraph 4 for the
period May 8, 2002 through May 7, 2003.
(ii) Any unvested portion of the Award shall be forfeited to the
Company upon (A) the termination of Consultant's employment with
the Company for any reason other than due to Retirement at or
after age 65, (B) Consultant's death or Disability prior to the
one-year term beginning May 8, 2000 referenced in paragraph 4, or
(C)upon Consultant's failure to comply with his obligations under
this Agreement or the Agreements described in paragraph 14. In
the event of the termination of this Agreement due to
Consultant's death or Disability during or after the one-year
term beginning May 8, 2000 referenced in paragraph 4, any
unvested
3
portion of the Award shall be forfeited on a pro-rata basis upon
Consultant's death or Disability as follows: the number of shares
to be forfeited shall be the product of 25,000 and a fraction
equal to the number of days after Consultant's death or
disability remaining in the current one-year term during which
Consultant dies or becomes disabled divided by 365.
(iii) Consultant will not have the right to receive a certificate for
the Shares or vote the Shares or receive dividends on the Shares
prior to the date such Shares vest pursuant to the terms of this
paragraph 5. However, during the Consulting Term, the Company
shall pay to Consultant cash payments in lieu of and equal to
dividends otherwise payable with respect to the 75,000 Shares, as
such dividends are declared and paid on the Company's Common
Stock. The Company's obligations to make cash payments in lieu of
dividends on the 75,000 Shares shall cease once Shares vest
pursuant to the terms of this paragraph 5 or in the event the
Shares are forfeited.
(iv) Until the Shares vest pursuant to the terms of this paragraph 5,
such Shares are non-transferable and may not be assigned, pledged
or hypothecated and shall not be subject to execution, attachment
or similar process. Any attempt to violate these restrictions
will result in the immediate forfeiture of the Award and the
Shares.
(v) Upon the vesting of the Shares pursuant to the terms of this
paragraph 5, a Certificate for such Shares will be issued to
Consultant by the Transfer Agent.
(vi) The terms and provisions of this Award (including, without
limitation, the terms and provisions relating to the number and
class of Shares subject to this Award) may be adjusted by the
Company in the event of any recapitalization, merger,
consolidation, reorganization, stock dividend, stock split,
split-up or other change in corporate structure affecting the
Common Stock.
(vii) The Award is made pursuant to the 1997 Performance Incentive
Plan (the "Plan") of the Company. To the extent any provision of
this Award is inconsistent or in conflict with any term or
provision of the Plan, the Plan shall govern. Capitalized terms
not otherwise defined herein have the same meaning set forth in
the Plan. For purposes of this Agreement, the term "Disability"
means permanent and total disability as determined under
procedures established by the Company for purposes of the Plan.
4
5) The Company shall reimburse Consultant for reasonable business
expenses incurred in providing consulting services pursuant to this
Agreement.
6) In rendering services as a consultant hereunder, Consultant shall be
an independent contractor. As an independent contractor, the Company
will issue an IRS Form 1099 for payments made pursuant to this
Agreement, and Consultant will be responsible for paying all federal,
state and local income and social security taxes arising out of any
such payments. In addition, during the Consulting Term, Consultant
will not accrue further service or compensation credit or benefits for
any purpose under any of the Company's retirement, profit-sharing,
disability, survivor's income, medical, dental or other plans of the
Company, its parent or any of their affiliated companies.
7) Consultant and the Company (to the extent practicable) agree that he
and the Company will not (except as required by law) directly or
indirectly make any statements or release any information, or
encourage others to make any statement or release any information that
is designed to embarrass or criticize the other (or any of their
respective affiliates or associates), provided that it will not be a
violation of this paragraph 9 for either Consultant or the Company to
make truthful statements in a court proceeding or to a governmental
agency.
8) Consultant agrees to maintain the confidentiality of all Company trade
secrets and proprietary information. Consultant also acknowledges
that, during the course of his employment with the Company, he has
been entrusted with certain personnel, business, financial, technical
and other information and material which are the property of the
Company and which involve "confidential information" of the Company
and the Company's employees. Consultant agrees that he will not
communicate or disclose to any third party (and acknowledge that he
has not communicated or disclosed), or use (or have used) for his own
account, without written consent of the Company, any of such
confidential information or material, except in response to a lawfully
issued subpoena, court order or other lawful request by any regulatory
agency or government authority having supervisory authority over the
business of the Company, unless and until such information or material
becomes generally available to the public through no fault of
Consultant's.
9) Consultant agrees that if any confidential information is requested by
subpoena or court, governmental or regulatory order, he will notify
the Company as soon as practicable and if requested by the Company, he
will undertake his best efforts to assist the Company in obtaining a
confidentiality order from the court or governmental or regulatory
agency requesting such information.
5
10) Consultant agrees that after his retirement and during the Consulting
Term, he will not accept employment or act as a consultant with a
competitor in the tobacco, food or beer businesses of the Company or
any such competitor's subsidiaries or affiliates or with any entity
whose interests would be antithetical to that of the Company or its
subsidiaries or affiliates, unless he receives advance written
permission from the Executive. Consultant also agrees that he will not
engage in the business of manufacturing, marketing and distributing
cigarettes for his own account without the express written permission
of the Executive.
11) Consultant acknowledges and agrees that after his retirement, he will
reasonably be able to earn a livelihood without violating the terms of
paragraph 11 and that employment or engagement with competitors or any
activities in violation of paragraph 11 would result in immediate and
irreparable harm to the Company and/or its affiliates or subsidiaries
or their competitive position. Consultant further acknowledges and
agrees that the Company is entitled to preliminary and permanent
injunctive relief in order to prevent or stop such violations, in
addition to damages, costs and other relief which may be appropriate.
12) Consultant agrees to consult with the Executive or his designee in the
event a situation arises in which his opinion, if expressed, or his
actions, if taken, could possibly affect the interests or reputation
of the Company. While Consultant is free at all times to express his
opinions, or take whatever actions he deems appropriate, unless
specifically authorized by the Company in writing, he agrees that any
such opinion(s) expressed or actions taken are his and not those of
the Company and, if not specifically authorized by the Company in
writing, may, at the option of the Company, result in termination of
this Agreement.
13) This Consulting Agreement is supplemental to the employment agreement
between Consultant and the Company dated October 12, 1987, which was
amended by a letter agreement dated October 5, 1993, and the Amended
and Restated Employment Agreement dated July 30, 1998 (collectively
"Agreements"), which Agreements shall continue in full force and
effect, except with respect to paragraph 5 of the October 12, 1987
employment agreement between Company and Consultant, which will be
superseded by paragraphs 11 and 12 of this Agreement effective on
Consultant's date of retirement.
14) This Agreement is not assignable, other than to a successor of the
Company pursuant to a merger of the Company or a purchase of the
Company or all or substantially all of the Company's assets.
6
15) In the event that any provision or portion of this Agreement will be
determined to be invalid or unenforceable for any reason, the
remaining provisions or portions of this Agreement will be unaffected
thereby and will remain in full force and effect to the fullest extent
permitted by the law.
16) This Agreement has been entered into in New York, New York, and will
be governed by and construed, interpreted and enforced in accordance
with the laws of the State of New York without giving effect to the
principles thereof relating to the conflict of laws. Consultant and
the Company irrevocably submit to the jurisdiction of the United
States District Court for the Southern District of New York and of any
New York state court sitting in New York City for the purposes of all
legal proceedings arising out of or relating to this Agreement or the
transactions contemplated thereby, and agree that all such suits,
actions or proceedings brought by either Consultant or the Company
will be brought in such courts. Consultant and the Company also
irrevocably waive, to the fullest extent permitted by applicable law,
any objection which he or it may now have or hereafter may have to the
venue of such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an
inconvenient forum.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first mentioned above.
PHILIP MORRIS COMPANIES INC.
By: /s/ TIMOTHY A. SOMPOLSKI /s/ MURRY H. BRING
Timothy A. Sompolski Murray H. Bring
Senior Vice President,
Title: Human Resources & Administration
7