KRAFT FOODS, INC.
SUPPLEMENTAL BENEFITS PLAN II
-----------------------------
(Effective as of January 1, 1996)
TABLE OF CONTENTS
PAGE
SECTION 1 - General.................................................. 1
1.1. History, Purpose and Effective Date...................... 1
1.2. Plan Administration; Plan Year........................... 2
1.3. Source of Benefits....................................... 2
1.4. Indemnification and Exculpation.......................... 2
1.5. Applicable Laws.......................................... 2
1.6. Gender and Number........................................ 2
1.7. Action by Employers...................................... 3
1.8. Severability of Plan Provisions.......................... 3
1.9. Notices.................................................. 3
1.10. Defined Terms............................................ 3
SECTION 2 - Participation............................................ 3
2.1. Participation............................................ 3
2.2. Plan Not Contract of Employment.......................... 4
SECTION 3 - Supplemental Retirement Plan Benefits.................... 4
3.1. Benefit Amount........................................... 4
3.2. Supplemental Retirement Plan Benefits
Attributable to Special Compensation Amounts............. 4
3.3. Pilots Pension Benefits.................................. 5
3.4. Special Pension Benefits................................. 5
3.5. Nonduplication of Supplemental Benefit Plan Amounts...... 5
SECTION 4 - Vesting and Payment of Plan Benefits..................... 5
4.1. Vesting.................................................. 5
4.2. Payment of Plan Benefits to Participants................. 5
4.3. Payment of Plan Benefits to Beneficiaries................ 6
4.4. Facility of Payment...................................... 6
4.5. Benefits May Not Be Assigned or Alienated................ 6
4.6. Tax Liability............................................ 6
4.7. Committee Discretion to Accelerate....................... 7
SECTION 5 - Administration........................................... 7
5.1. Committee Membership and Authority....................... 7
5.2. Allocation and Delegation of Committee
Responsibilities and Powers.............................. 8
5.3. Information to be Furnished to Committee................. 8
5.4. Committee's Decision Final............................... 8
SECTION 6 - Amendment and Termination................................ 8
6.1. Amendment and Termination................................ 8
6.2. Merger................................................... 9
SECTION 7 - Change of Control........................................ 9
7.1. Definition............................................... 9
7.2. Effect of Change of Control.............................. 11
i
KRAFT FOODS, INC.
SUPPLEMENTAL BENEFITS PLAN II
-----------------------------
(Effective as of January 1, 1996)
SECTION I
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General
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1.1. History, Purpose and Effective Date. Kraft Foods, Inc., a Delaware
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corporation (the "Company"), has established Kraft Foods, Inc. Supplemental
Benefits Plan II (the "Plan") to enable the eligible employees of the Employers
(as defined below) to receive retirement income and other benefits in addition
to the retirement income and other benefits payable under the qualified plans of
the Employer. The "Effective Date" of the Plan is January 1, 1996. The benefits
payable under the Plan include certain benefits that were part of the Kraft
Foods, Inc. Supplemental Benefits Plan (as in effect immediately prior to the
Effective Date) but that do not constitute retirement income from a plan,
program or arrangement described in section 114 (b) (1) (I) (ii) of chapter 4 of
Title 4, United States Code. The Company and any of its subsidiaries that adopts
the Plan with the consent of the Company's Management Committee for Employee
Benefits (the "Committee") are referred to below collectively as the "Employers"
and individually as an "Employer". The Plan is not intended to qualify under
section 401 (a) of the Internal Revenue Code of 1986, as amended (the "Code"),
or be subject to Parts 2, 3 or 4 of Title I of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). For purposes of applying Title I of
ERISA, the Plan constitutes a plan maintained primarily for the purpose of
providing deferred compensation for a select group of management or highly
compensated employees within the meaning of section 301 (a) (3) of ERISA.
1.2. Plan Administration; Plan Year. The Plan shall be administered by the
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Committee, as more fully described in Section 5. The "Plan Year" means the
12-consecutive-month period beginning on each January 1 and ending on the
following December 31.
1.3. Source of Benefits. The amount of any benefit payable under the Plan
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will be paid in cash from the general assets of the Employers or from one or
more trusts, the assets of which are subject to the claims of the Employer's
general creditors. Such amounts payable shall be reflected on the accounting
records of the Employers but shall not be construed to create, or require the
creation of, a trust, custodial or escrow account. No employee or other
individual entitled to benefits under the Plan shall have any right, title or
interest whatever in any assets of
any Employer or to any investment reserves, accounts or funds that an Employer
may purchase, establish or accumulate to aid in providing the benefits under the
Plan. Nothing contained in the Plan and no action taken pursuant to its
provisions, shall create a trust or fiduciary relationship of any kind between
an Employer and an employee or any other person. Neither an employee or
beneficiary of an employee shall acquire any interest greater than that of an
unsecured creditor.
1.4. Indemnification and Exculpation. The members of the Committee, and its
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agents, and the officers, directors, and employees of any Employer and its
affiliates shall be indemnified and held harmless by the Employer against and
from any and all loss, costs, liability, or expense that may be imposed upon or
reasonably incurred by them in connection with or resulting from any claim,
action, suit, or proceeding to which they may be a party or in which they may be
involved by reason of any action taken or failure to act under the Plan and
against and from any and all amounts paid by them in settlement (with the
Employer's written approval) or paid by them in satisfaction of a judgment in
any such action, suit, or proceeding. The foregoing provisions shall not be
applicable to any person if the loss, costs, liability, or expense is due to
such person's gross negligence or willful misconduct.
1.5. Applicable Laws. The Plan shall be construed and administered in
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accordance with the internal laws of the State of Illinois to the extent that
such laws are not preempted by the laws of the United States of America.
1.6. Gender and Number. Where the context admits, words in any gender shall
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include any other gender, words in the singular shall include the plural and the
plural shall include the singular.
1.7. Action by Employers. Any action required of or permitted by the
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Company or the Employers under the Plan shall be by approval of the Committee or
any person or persons authorized by the Committee.
1.8. Severability of Plan Provisions. In the event any provision of the
--------------------------------
Plan shall be held invalid or illegal for any reason, any invalidity or
illegality shall not affect the remaining parts of the Plan, but the Plan shall
be construed and enforced as if the invalid or illegal provision had never been
inserted, and the Company shall have the right to correct and remedy such
questions of invalidity or illegality by amendment as provided in the Plan.
1.9. Notices. Any notice or document required to be filed with the
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Committee under the Plan will be properly filed if
2
delivered or mailed by registered mail, postage prepaid, to the Committee (or
its delegate), in care of the Company, at its principal executive offices. Any
notice required under the Plan may be waived by the person entitled to notice.
1.10. Defined Terms. Terms used frequently with the same meaning are
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indicated by initial capital letters, and are defined throughout the Plan.
Appendix A contains an alphabetical listing of such terms and the locations in
which they are defined.
SECTION 2
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Participation
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2.1. Participation. Subject to the conditions and limitations of the Plan,
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each employee of an Employer will automatically be enrolled in and become a
"Participant" in the Plan on the first day on or after the Effective Date upon
which he satisfies the following requirements:
(a) he is in a select group of management or highly compensated employees;
and
(b) (i) he is a participant in the Kraft Foods Retirement Plan or the
Kraft Foods Hourly Retirement Plan (collectively, the "Retirement
Plan") and his benefits under the Retirement Plan are limited
because the Retirement Plan does not take into account as
compensation his Annual Performance Award or the amount of any
nonqualified compensation deferrals; or
(ii) he is a former Dart Industries pilot identified in Appendix B; or
(iii) he has become entitled to any of the special benefits described in
subsection 3.4.
2.2. Plan Not Contract of Employment. The Plan does not constitute a
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contract of employment, and participation in the Plan will not give any employee
the right to be retained in the employ of any Employer nor any right or claim to
any benefit under the Plan, unless such right or claim has specifically accrued
under the terms of the Plan.
3
SECTION 3
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Supplemental Retirement Plan Benefits
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3.1. Benefit Amount. A Participant in the Plan shall be entitled to
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supplemental Retirement Plan benefits payable from this Plan in the amounts
described in subsections 3.2, 3.3 and 3.4, as applicable, subject to the
conditions and limitations of the Plan including those provisions set forth in
subsection 3.5.
3.2. Supplemental Retirement Plan Benefits Attributable to Special
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Compensation Amounts. A Participant described in subparagraph 2. 1 (b) (i) shall
--------------------
be eligible for a supplemental Retirement Plan benefit payable under the Plan in
an amount equal to:
(a) the amount of the Retirement Benefit or Deferred Vested Benefit (as
defined in the Retirement Plan), expressed in the form of the benefit
the Participant is actually receiving under the Retirement Plan, that
the Participant would have been entitled to receive under the
Retirement Plan, if his Retirement Plan benefit were determined
without regard to the compensation limitations of section 401 (a) (17)
of the Code and without regard to the limitations imposed by section
415 of the Code, and if the Retirement Plan included as compensation
all Annual Performance Awards and any nonqualified compensation
deferrals,
REDUCED BY
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(b) the amount of the actual benefit payable under the Retirement Plan to
or on account of the individual, and
FURTHER REDUCED BY
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(c) the amount of the benefit payable to or on account of the individual
under subsection 4.2 of Kraft Foods, Inc. Supplemental Benefits Plan I
("Plan I").
3.3. Pilots Pension Benefits. A Participant described in subparagraph
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2.1(b)(ii) whose employment with an Employer terminates on or after attaining
age 60 shall be eligible for a pension benefit payable under the Plan in an
amount equal to:
(a) the amount of the Retirement Benefit (as defined in the Retirement
Plan), expressed in the form of the benefit the Participant is
actually receiving under the Retirement Plan, that the Participant
would have
4
been entitled to receive under the Retirement Plan, if such benefit
were determined without regard to any actuarial reductions thereunder
due to his benefit commencement prior to attaining age 65;
REDUCED BY
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(b) the amount of the actual benefit payable under the Retirement Plan to
or on account of the Participant.
3.4. Special Pension Benefits. If under the terms of any employment or
------------------------
incentive agreement or other contractual obligation of an Employer any
Participant is entitled to additional service credit, early retirement
subsidies, an enhanced pension formula or any other additional retirement plan
amounts that are not payable from the Retirement Plan or from Plan I, such
additional retirement amounts shall be payable from this Plan in the amount
determined by the Committee.
3.5. Nonduplication of Supplemental Benefit Plan Amounts. The provisions of
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this Plan are intended to be coordinated with the provisions of Plan I and are
not intended to duplicate any of the benefits provided thereunder. To the
extent, if any, that any portion of a Participant's nonqualified retirement
benefits payable from the Company or any other Employer could be provided from
both this Plan and from Plan I, the portion of such benefit amount otherwise
payable from this Plan shall be reduced by the portion of such benefit that is
payable from Plan I.
SECTION 4
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Vesting and Payment of Plan Benefits
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4.1. Vesting. A Participant shall become vested and have a nonforfeitable
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interest in his benefits under the Plan when and to the extent that his accrued
benefit under the Retirement Plan becomes vested and nonforfeitable.
Notwithstanding the foregoing provisions of this subsection 4.1, a Participant
or his beneficiary shall have no right to any benefits under the Plan if the
Committee or his Employer determines that he engaged in a willful, deliberate or
grossly negligent act of commission or omission which is substantially injurious
to the finances or reputation of the Employers.
4.2. Payment of Plan Benefits to Participants. Except as provided by the
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following provisions of this paragraph, a Participant's vested benefits under
the Plan will be paid to him in the same form, on the same dates and for the
same period during which benefits are payable to him under the Retirement Plan;
provided, however, that no benefits under the Plan shall be
5
payable to a Participant sooner than 30 days after the Participant (and his
spouse or beneficiary, as applicable) has made all elections required to
commence distributions under the terms of the Retirement Plan.
4.3. Payment of Plan Benefits to Beneficiaries. If a Participant dies
-----------------------------------------
before he has commenced the payment of vested benefits accrued under the Plan,
his Beneficiary shall receive such death benefits or preretirement surviving
spouse benefits, if any, as would be provided under the Retirement Plan,
calculated and paid in the same form and manner as under the Retirement Plan. If
a Participant dies after he has commenced the payment of benefits accrued under
the Plan, there are no death benefits payable under the Plan except as may be
provided under the distribution method applicable to such benefits in accordance
with subsection 4.2. For purposes of this Plan, a Participant's "Beneficiary"
with respect to benefits payable under the Plan shall be the same person or
persons as his beneficiary determined under the terms of the Retirement Plan
provided, however, that each Participant may designate in writing any legal or
natural person or persons as Beneficiary of any benefits payable under the Plan
after his death. A Beneficiary designation made with respect to benefits payable
under the Plan will be effective only after it is filed in writing with the
Committee or its delegate while the Participant is alive and will cancel all
beneficiary designation forms filed earlier.
4.4. Facility of Payment. If, in the Committee's opinion, a Participant or
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other person entitled to benefits under the Plan is under a legal disability or
is in any way incapacitated so as to be unable to manage his financial affairs,
payment will be made to the conservator or other person legally charged with the
care of his person or his estate or, if no such legal conservator will have been
appointed, then to any individual (for the benefit of such Participant or other
person entitled to benefits under the Plan) whom the Committee may from time to
time approve.
4.5. Benefits May Not Be Assigned or Alienated. The benefits payable to, or
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on account of, any individual under the Plan may not be voluntarily or
involuntarily assigned or alienated.
4.6. Tax Liability. The Employers may withhold from any payment of benefits
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hereunder any taxes required to be withheld and such sum as the Employers may
reasonably estimate to be necessary to cover any taxes for which the Employers
may be liable and which may be assessed with regard to such payment.
4.7. Committee Discretion to Accelerate. The Committee may accelerate the
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date of distribution of any benefits payable under the Plan to or on behalf of
any Participant to the extent that
6
the Committee determines that such acceleration is in the best interests of the
Employers because of changes in tax laws or accounting principles, Department of
Labor regulations, or any other reason which negates or diminishes the continued
value of the Plan to any Employer or Participant. The amount distributed
pursuant to this subsection 4.7 will be paid in the form of a lump sum.
SECTION 5
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Administration
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5.1. Committee Membership and Authority. The "Committee" referred to in
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subsection 1.2 shall consist of one or more members appointed by the Company.
Except as otherwise specifically provided in this Section 5, the Committee shall
act by a majority of its then members, by meeting or by writing filed without
meeting, and shall have the following discretionary authority, powers, rights
and duties in addition to those vested in it elsewhere in the Plan:
(a) to adopt and apply in a uniform and nondiscriminatory manner to all
persons similarly situated, such rules of procedure and regulations
as, in its opinion, may be necessary for the proper and efficient
administration of the Plan and as are consistent with the provisions
of the Plan;
(b) to enforce the Plan in accordance with its terms and with such
applicable rules and regulations as may be adopted by the Committee;
(c) to determine conclusively all questions arising under the Plan,
including the power to determine the eligibility of employees and the
rights of Participants and other persons entitled to benefits under
the Plan and their respective benefits, to make factual findings and
to remedy ambiguities, inconsistencies or omissions of whatever kind;
(d) to maintain and keep adequate records concerning the Plan and
concerning its proceedings and acts in such form and detail as the
Committee may decide;
(e) to direct all payments of benefits under the Plan; and
(f) to employ agents, attorneys, accountants or other persons (who may
also be employed by or represent the Employers) for such purposes as
the committee
7
considers necessary or desirable to discharge its duties.
The certificate of a majority of the members of the Committee that the Committee
has taken or authorized any action shall be conclusive in favor of any person
relying on the certificate.
5.2. Allocation and Delegation of Committee Responsibilities and Powers. In
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exercising its authority to control and manage the operation and administration
of the Plan, the Committee may allocate all or any part of its responsibilities
and powers to any one or more of its members and may delegate all or any part of
its responsibilities and powers to any person or persons selected by it. Any
such allocation or delegation may be revoked at any time.
5.3. Information to be Furnished to Committee. The Employers shall furnish
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the Committee such data and information as may be required for it to discharge
its duties and the records of the Employers shall be conclusive on all persons
unless determined to be incorrect. Participants and other persons entitled to
benefits under the Plan must furnish to the Committee such evidence, data or
information as the Committee considers desirable to carry out the Plan.
5.4. Committee's Decision Final. Any interpretation of the Plan and any
--------------------------
decision on any matter within the discretion of the Committee made by the
Committee shall be binding on all persons. A misstatement or other mistake of
fact shall be corrected when it becomes known, and the Committee shall make such
adjustment on account thereof as it considers equitable and practicable.
SECTION 6
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Amendment and Termination
-------------------------
6.1. Amendment and Termination. The Company and the Committee have the
-------------------------
right to amend the Plan from time to time, and the right to terminate it;
provided, however, that no such amendment or termination of the Plan will:
(a) reduce or impair the interests of Participants in benefits being paid
under the Plan as of the date of amendment or termination, as the case
may be; or
(b) reduce the aggregate amount of benefits payable from the Plan and from
any other plan, program or arrangement established to supplement or
replace the Plan to or on account of any employee of an Employer to an
amount which is less than the amount to which he
8
would be entitled in accordance with the provisions of the Plan if the
employee terminated employment immediately prior to the date of the
amendment or termination, as the case may be.
6.2. Merger. No Employer will merge or consolidate with any other
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corporation, or liquidate or dissolve, without making suitable arrangements,
satisfactory to the Committee, for the payment of any benefits payable under the
Plan.
SECTION 7
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Change of Control
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7.1. Definition. "Change of Control" means the happening of any of the
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following events:
(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 Companies Inc. (the "Parent") (such
stock hereinafter referred to as the "Outstanding Parent Common
Stock") or (ii) the combined voting power of the then outstanding
voting securities of the Parent entitled to vote generally in the
election of directors (the "Outstanding Parent Voting Securities");
provided, however, that the following acquisitions shall not
constitute a Change of Control: (i) any acquisition directly from the
Parent, (ii) any acquisition by the Parent, (iii) any acquisition by
any employee benefit plan (or related trust) sponsored or maintained
by the Parent or any corporation controlled by the Parent or (iv) any
acquisition by any corporation pursuant to a transaction described in
clauses (i), (ii) and (iii) of paragraph (c) of this subsection 7.1;
or
(b) Individuals who, as of November 1, 1989, constitute the Board of
Directors of Parent (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 November 1, 1989
whose election, or nomination for election by the Parent'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
9
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) Approval by the shareholders of the Parent of 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 Parent Common
Stock and Outstanding Parent Voting Securities immediately prior to
such Business Combination beneficially own, directly or indirectly,
more than 80% 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 the Parent through one or more
subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the
Outstanding Parent Common Stock and Outstanding Parent Voting
Securities, as the case may be, (ii) no Person (excluding any employee
benefit plan (or related trust) of the Parent or such corporation
resulting from such Business Combination) beneficially owns, directly
or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of 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 of the action of the Board, providing for such Business
Combination; or
(d) Approval by the shareholders of the Parent of (i) a complete
liquidation or dissolution of the Parent or (ii) the sale or other
disposition of all or substantially all of the assets of the Parent,
other than to a corporation, with respect to which following such sale
or other disposition, (A) more than 80% of, respectively, the then
outstanding shares of common stock of such corporation and the
combined voting power
10
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 Parent Common Stock and Outstanding Parent 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 the Outstanding Parent
Common Stock and Outstanding Parent Voting Securities, as the case may
be, (B) less than 20% 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 the Parent or such corporation),
except to the extent that such Person owned 20% or more of the
Outstanding Parent Common Stock or Outstanding Parent 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 of the action of the Board, providing for
such sale or other disposition of assets of the Parent or were
elected, appointed or nominated by the Board.
7.2. Effect of Change of Control. Notwithstanding any other provisions of
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the Plan to the contrary, in the event of a Change of Control, each Participant
shall immediately be fully vested in any benefits accrued under the Plan through
the date of the Change of Control, and each Participant (or his beneficiary)
shall be paid a lump sum payment in cash within 30 days of the Change of Control
equal to the actuarially determined present value of his accrued benefits under
Section 3. For purposes of the foregoing sentence, the calculation of the lump
sum payment of the benefits accrued under Section 3 shall be based upon the same
actuarial factors and adjustments used under the Retirement Plan for purposes of
lump sum payments as in effect immediately prior to the Change of Control.
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APPENDIX A
Index of Defined Terms
----------------------
Section
Where Defined
Defined Term
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4.3 Beneficiary
7.1 Business Combination
7.1 Change of Control
1.1 Code
1.1 Company
1.1 Committee
1.1 Effective Date
1.1 Employers
1.1 ERISA
7.1 Exchange Act
7.1 Incumbent Board
7.1 Outstanding Parent Common Stock
7.1 Outstanding Parent Voting Securities
7.1 Parent
2.1 Participant
7.1 Person
1.1 Plan
3.2 Plan I
1.2 Plan Year
2.1 Retirement Plan
APPENDIX B
Former Dart Industries Pilots
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Tracy Gilman
Gordon Robinson
Philip Schultz
Hartley Smith
Supplemental Benefits Plan II - Kraft Foods Inc.
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