Agreement
Time Sharing Agreement
Amendment to Time Sharing Agreement
Second Amendment to Time Sharing Agreement
 
 
 
 
                                                            Exhibit 10.2
 
 
                      Agreement with Michael E. Szymanczyk
 
 
                                  May 15, 2002
 
Michael E. Szymanczyk
Chairman
Philip Morris Incorporated
120 Park Avenue
New York, NY  10017
 
Dear Mike:
 
         This letter agreement sets forth the terms of certain enhanced
retirement arrangements that will be provided to you by Philip Morris
Incorporated (the "Company") if you satisfy the applicable terms and conditions
set forth in this letter.
 
         1. Pension Benefits.
 
            a. In General. If you continue in employment with the Company,
the parent corporation of the Company, or any subsidiary of such parent
(collectively, the "Affiliated Group") until you attain the age of 55 on January
3, 2004, or if, prior to such date, you suffer a Termination Event (as
hereinafter defined), then the Company will at any subsequent retirement date
or, in the case of a Termination Event, at your termination of employment (a)
credit you with an additional five years of service for all purposes in
calculating your benefits under the defined benefit portion of the Philip Morris
Benefit Equalization Plan (the "DB BEP") and (b) calculate your benefits under
the DB BEP as of your retirement or termination date without any actuarial
reduction for early commencement. To the extent that you continue in employment
with the Affiliated Group after attaining age 55, you will also be credited for
all purposes under the DB BEP with two years of service, rather than one, for
each year of service that would otherwise have been credited for continued
employment after attaining age 55 and before attaining age 60. The enhanced
benefits payable under this paragraph (that is, those benefits exceeding those
provided for under the regular terms of the DB BEP) will be paid pursuant to the
Supplemental Management Employees' Retirement Plan of Philip Morris Companies
Inc., in which the Company is a Participating Company, and will be subject to
the provisions of your Employee Grantor Trust Enrollment Agreement dated January
15, 1996, or any successor agreement.
 
            b. Termination Event. For purposes of this letter agreement,
"Termination Event" means an involuntary termination of your employment with the
Affiliated Group without "Cause" (as defined in the Employment Agreement dated
November 1, 1997, between Philip Morris Companies Inc. and you, or in the most
recent of any successor employment agreements between you and any member of the
Affiliated Group that defines "Cause" (the relevant agreement being referred to
herein as the "Employment Agreement")), whether or not such termination occurs
during the "Employment Period" as defined in the Employment Agreement. Thus, by
way of illustration, if your employment with the Affiliated Group were
terminated without Cause prior to a Change of Control (as defined in
 
 
 
 
<PAGE>
 
                                                                    Exhibit 10.2
 
Michael E. Szymanczyk
May 15, 2002
Page 2
 
the Employment Agreement) such occurrence would constitute a Termination Event
hereunder notwithstanding that you might not be entitled to severance pursuant
to the Employment Agreement.
 
            c. Enhancement Upon Death or Disability. If during your
continued employment with the Affiliated Group you die or become disabled prior
to attaining age 55, you or your spouse would be entitled to receive a Philip
Morris pension benefit enhancement based on adding five years to your actual
service as of your date of death or disability. During such continued
employment: (1) if you become disabled prior to age 55, you will be entitled to
receive an immediate Philip Morris and Kraft Foods 100% Joint and Survivor
pension benefit without reduction for early commencement; (2) if you die prior
to age 55, your spouse will be entitled to receive commencing as of the date you
would have attained age 55 the survivor portion of a Philip Morris and Kraft
Foods 100% Joint and Survivor pension benefit without reduction for early
commencement; and (3) should you die on or after attaining age 55 and prior to
retirement, your spouse would be entitled to receive the survivor portion of an
immediate Philip Morris and Kraft Foods 100% Joint and Survivor pension benefit
without reduction for early commencement. The enhanced benefits would be payable
pursuant to the Supplemental Management Employees Retirement Plan of Philip
Morris Companies Inc., and offset by (i) benefits payable from the Philip Morris
Salaried Employees' Retirement Plan, the Philip Morris Benefit Equalization
Plan, the Kraft Foods, Inc. Retirement Plan, and the Kraft Foods, Inc.
Supplemental Benefits Plan I and II and (ii) the amounts determined under your
Employee Grantor Trust Enrollment Agreement referred to in paragraph 1.a above.
 
         2. Post-retirement Health Benefits. If you continue in employment with
the Affiliated Group until you attain the age of 57 on January 3, 2006, or if
you suffer a Termination Event prior to such date, the Company will make
arrangements (which may include making payments on your behalf on a basis that
holds you harmless for taxes on such payments) ensuring that the cost to you and
your eligible dependents of any post-retirement health benefits provided by the
Company are no greater than the contributions required of Company employees who
retire with 25 years of service.
 
         3. Restricted Stock. If you continue in employment with the Affiliated
Group until you attain the age of 57 on January 3, 2006 but thereafter retire
before June 23, 2008, the Company will recommend that the Compensation Committee
of the Board of Directors of Philip Morris Companies Inc. (the "Compensation
Committee") exercise its discretion to vest your 61,000 shares of restricted
common stock of Philip Morris Companies Inc. that would otherwise vest if you
continued employment until June 23, 2008. The decision whether to follow the
Company's recommendation is within the discretion of that Committee; however, to
the extent that the Compensation Committee does not follow such recommendation,
the Company shall promptly pay you, in exchange for such restricted shares, an
amount in cash equal to the product of the then fair market value of a share of
common stock of Philip Morris Companies Inc. multiplied by the number of such
61,000 restricted shares that the Compensation Committee has not elected to
vest.
 
         4. Termination Before Retirement Eligibility. If you should suffer a
Termination Event before attaining age 55, (a) you will be treated for purposes
of Annual Incentive Awards, Long-Term Incentive Awards, and stock awards other
than options in the same manner (generally, under current practice, the receipt
of a prorated award) as executives then retiring after attaining age 55; and (b)
you
 
 
 
 
<PAGE>
 
                                                                    Exhibit 10.2
 
Michael E. Szymanczyk
May 15, 2002
Page 3
 
will be treated, for purposes of any outstanding stock options awarded to you by
the Company or Philip Morris Companies Inc., as having terminated employment by
"Retirement."
 
         5. Agreement Contingent on Non-competition. Subject to the last
sentence of this paragraph 5, all of the enhanced retirement and termination
arrangements described in paragraphs 1 through 4 above are contingent on your
agreement that you will not while employed by any member of the Affiliated Group
and for a period of 24 months thereafter (a) acquire an ownership interest
exceeding five percent in or (b) become employed by, enter into a consulting
arrangement with, or otherwise perform services for any company or business that
is in competition with any material business of any member of the Affiliated
Group to which you devoted substantive attention during your employment with the
Affiliated Group, except with the written permission of the Chief Executive
Officer of Philip Morris Companies Inc. You acknowledge that the enhanced
arrangements described in this agreement are sufficient consideration for this
non-competition agreement and that, in light of the positions you hold and have
held as an executive of members of the Affiliated Group, the constraint imposed
on your rending services to others is a reasonable one. You further agree that,
if reasonably requested to do so by the Company and as a condition for receiving
the benefits of paragraphs 1 through 4 of this agreement, you will upon your
termination of employment with the Affiliated Group enter into a non-competition
agreement that further defines the companies or businesses to which you may not
provide services during the 24-month period referred to in this paragraph and
that may provide for enforcement of your agreement not to compete by requiring
the return of any such benefits received, by injunctive relief, or by other
means. Notwithstanding the foregoing, the post-employment restrictions contained
in this paragraph 5 shall not apply following the occurrence of the "Effective
Date", as defined in the Employment Agreement.
 
         6. Vacation. Effective upon your execution of this letter agreement,
you will become entitled to five weeks of paid vacation per calendar year during
each year of your continued employment with the Affiliated Group.
 
         7. Miscellaneous.
 
            a. Letter Agreement Interpretation and Amendment. This letter
agreement is governed by the laws of New York, without regard to any
jurisdiction's choice of law principles. The invalidity or unenforceability of
any provision or any portion of a provision of this letter agreement shall not
affect the validity or enforceability of any other provision or any other
portion of a provision of this letter agreement. This letter agreement may not
be amended or otherwise modified other than by a written agreement executed by
the parties to this letter agreement or their respective successors or legal
representatives.
 
            b. Other Agreements. This agreement provides benefits and reflects
agreements that supplement any prior written agreements between you and members
of the Affiliated Group regarding the subject matter hereof and shall be
construed accordingly. Nothing herein is intended to affect any rights or claims
you may have to severance and similar benefits upon the termination of your
employment with the Affiliated Group, except that the benefits payable under
this letter agreement upon any Termination Event that occurs prior to the
occurrence of a Change of Control as defined in the Employment Agreement shall
be in lieu of any other severance or similar benefits, or to
 
 
 
 
<PAGE>
 
                                                                    Exhibit 10.2
 
Michael E. Szymanczyk
May 15, 2002
Page 4
 
suggest that the parties intend this letter agreement to embody all their
respective obligations in connection with any such termination.
 
            c. Dispute Resolution. Any disputes arising under or in connection
with this letter agreement will be resolved by binding arbitration to be held in
New York City in accordance with the Commercial Arbitration Rules of the
American Arbitration Association. Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. Each
party will pay its own costs of arbitration or litigation, including, without
limitation, its own attorneys' fees. Notwithstanding the preceding sentence,
reasonable costs of arbitration or litigation relating to a particular issue,
including, without limitation, your attorneys' fees, will be borne by the
Company if you prevail on that issue in a final determination by a tribunal of
competent jurisdiction, including binding arbitration under this paragraph.
 
            d. Successors and Assignment. This letter agreement will be binding
on and inure to the benefit of you, the Company, and your and the Company's
respective heirs, executors, successors, and permitted assigns. If for any
reason the Company is unable to make payments or provide benefits that become
due under this letter agreement, Philip Morris Companies Inc. will promptly make
such payments or provide such benefits and, to the extent it does so, shall
become subrogated to your rights against the Company. This letter agreement may
not be assigned in whole or in part by either party without the written consent
of the other, except that the Company may assign this letter agreement, without
your consent, to any business entity into which or with which it may merge or to
which it may transfer substantially all of its assets, provided that the
assignee assumes the liabilities, obligations, and duties of the Company
contained in this letter agreement either contractually or as a matter of law.
 
         If the terms of this letter agreement are acceptable to you, please
sign and date this letter as indicated below and return it to me.
 
 
                                         Very truly yours,
 
 
                                         /s/ KENNETH MURPHY
                                         --------------------------------------
                                         Kenneth Murphy
                                         Senior Vice President, Human Resources
                                         Philip Morris Incorporated
 
 
 
 
<PAGE>
 
                                                                    Exhibit 10.2
 
Michael E. Szymanczyk
May 15, 2002
Page 5
 
 
 
Accepted and agreed this 15th day
of May, 2002
 
 
 
/s/ MICHAEL E. SZYMANCZYK
---------------------------------
Michael E. Szymanczyk
 
 
 
Accepted and agreed this 15th day
of May, 2002
 
 
 
/s/ TIMOTHY A. SOMPOLSKI
---------------------------------
Timothy A. Sompolski
Senior Vice President, Human Resources
  and Administration
Philip Morris Companies Inc.
 
 
 
</TEXT>
</DOCUMENT>

 

 

EX-10.2 3 dex102.htm TIME SHARING AGREEMENT

Exhibit 10.2

TIME SHARING AGREEMENT

THIS TIME SHARING AGREEMENT (the “Agreement”) is made and entered into this 28th day of January, 2009, by and between Altria Client Services Inc., with an address of 6601 West Broad Street; Richmond, VA 23230 (“Operator”) and Michael E. Szymanczyk, with an address of 6601 West Broad Street; Richmond, VA 23230 (“User”).

WITNESSETH, that

WHEREAS, Operator owns the aircraft more particularly described on Exhibit A attached hereto (collectively, the “Aircraft”);

WHEREAS, Operator employs a fully qualified flight crew to operate the Aircraft; and

WHEREAS, Operator desires to lease said Aircraft with flight crew to User and User desires to lease said Aircraft and flight crew from Operator on a time sharing basis pursuant to Section 91.501(b)(6) of the Federal Aviation Regulations (the “FARs”).

NOW THEREFORE, Operator and User declaring their intention to enter into and be bound by this Agreement, and for the good and valuable consideration set forth below, hereby covenant and agree as follows:

1. Operator agrees to lease the Aircraft to User pursuant to the provisions of FAR 91.501(b)(6) and to provide a fully qualified flight crew for all operations on a non-continuous basis commencing on the first date set forth hereinabove and continuing unless and until terminated. Either party may terminate this Agreement by giving thirty (30) days written notice to the other party.

2. User shall pay Operator for each flight conducted under this Agreement the actual expenses of each specific flight, including the actual expense of any “deadhead” flights made for User, as authorized by FAR Part 91.501(d). The expenses authorized by FAR Part 91.501(d) include:

 

 

(a)

Fuel, oil, lubricants and other additives.

 

 

(b)

Travel expenses of the crew, including food, lodging and ground transportation.

 

 

(c)

Hangar and tie down costs away from the Aircrafts’ base of operations.

 

 

(d)

Insurance obtained for the specific flight.

 

 

(e)

Landing fees, airport taxes and similar assessments.

 

 

(f)

Customs, foreign permit and similar fees directly related to the


 

flight.

 

 

(g)

In flight food and beverages.

 

 

(h)

Passenger ground transportation.

 

 

(i)

Flight planning and weather contract services.

In addition, User shall pay Operator for each such flight and “deadhead” flight the costs of engine maintenance, aircraft cleaning, and, if applicable, any contracted (temporary) flight crew, which cost shall not exceed 100% of the expenses listed in subparagraph (a) of this paragraph, as authorized by FAR 91.501(d).

3. User agrees to pay any federal transportation excise tax (“FET”) due on the fees set forth in paragraph 2 above. FET is currently imposed at a rate of 7.5% of the amount paid for taxable transportation, with an additional fee of $3.60 per passenger per segment. For certain international flights, the tax is instead imposed as a per passenger international facilities fee currently at the rate of $16.10 per passenger per arrival to or departure from the United States. In addition, there are special rules for flights to and from Alaska and Hawaii. The per passenger fees are periodically updated by the IRS. Operator shall include the appropriate FET amount on each invoice. Operator shall be responsible for collecting, reporting and remitting FET to the U.S. Internal Revenue Service.

4. Operator will pay all expenses related to the operation of the Aircraft when incurred. Operator will provide an invoice to User for the fees described herein within 30 days of the last flight of a particular trip. User shall pay Operator for said expenses within thirty (30) days of receipt of the invoice therefore.

5. User will provide Operator with requests for flight time and proposed flight schedules as far in advance of any given flight as possible. Requests for flight time and proposed flight schedules shall be made in compliance with Operator’s scheduling procedures. In addition to proposed schedules and flight times, User shall provide at least the following information for each proposed flight at some time prior to scheduled departure as required by Operator or Operator’s flight crew.

 

 

(a)

Proposed departure point;

 

 

(b)

Destination;

 

 

(c)

Date and time of flight;

 

 

(d)

The number and names of anticipated passengers;

 

 

(e)

Designation of each passenger’s trip purpose (personal or business);

 

 

(f)

The nature and extent of unusual luggage and/or cargo to be carried;

 

 

(g)

The date and time of a return flight, if any; and

 

 

(h)

Any other information concerning the proposed flight that may be pertinent or required by Operator or Operators flight crew.

 

2


6. Operator shall pay all expenses related to the ownership and operation of the Aircraft and shall employ, pay for and provide to User a qualified flight crew for each flight made under this Agreement.

7. Operator shall be solely responsible for securing maintenance, preventive maintenance and required or otherwise necessary inspections on the Aircraft, and shall take such requirements into account in scheduling the Aircraft. No period of maintenance, preventive maintenance or inspection shall be delayed or postponed for the purpose of scheduling the Aircraft, unless said maintenance or inspection can be safely conducted at a later time in compliance with all applicable laws and regulations, and within the sound discretion of the pilot in command.

8. In accordance with applicable FARs, the flight crew will exercise all of its duties and responsibilities in regard to the safety of each flight conducted hereunder. User specifically agrees that the pilot in command, in his sole discretion, may terminate any flight, refuse to commence any flight, or take other action which in the considered judgment of the pilot in command is necessitated by considerations of safety.

9. Operator will provide such additional insurance coverage as User shall request or require; provided, however, that the cost of such additional insurance may be borne by User as set forth in paragraph 2(d) hereof.

10. User warrants that:

 

 

(a)

It will use the Aircraft for and on account of its own personal business or pleasure only, and will not use the Aircraft for the purposes of providing transportation for passengers or cargo in air commerce for compensation or hire; and

 

 

(b)

During the term of this Agreement, it will abide by and conform to all such laws, governmental and airport orders, rules and regulations, as shall from time to time be in effect relating in any way to their operation and use of the Aircraft by a time sharing User.

11. Neither this Agreement nor either party’s interest herein shall be assignable to any other party. This Agreement shall inure to the benefit of and be binding upon the parties hereto, their heirs, representatives and successors.

12. No provision of this Agreement may be amended unless such amendment is agreed to in writing and signed by the parties.

 

3


13. Nothing herein shall be construed to create a partnership, joint venture, franchise, employer-employee relationship or to create any relationship of principal and agent.

14. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to its choice of law provisions.

15. TRUTH IN LEASING STATEMENT UNDER SECTION 91.23 OF THE FEDERAL AVIATION REGULATIONS.

(A)    ALTRIA CLIENT SERVICES INC. (“OPERATOR”) HEREBY CERTIFIES THAT THE AIRCRAFT HAVE BEEN INSPECTED AND MAINTAINED WITHIN THE 12 MONTH PERIOD PRECEDING THE DATE OF THIS AGREEMENT IN ACCORDANCE WITH THE PROVISIONS OF FAR PART 91 AND ALL APPLICABLE REQUIREMENTS FOR THE MAINTENANCE AND INSPECTION THEREUNDER HAVE BEEN MET.

(B)    ALTRIA CLIENT SERVICES INC. (“OPERATOR”) AGREES, CERTIFIES AND KNOWINGLY ACKNOWLEDGES THAT WHEN THE AIRCRAFT ARE OPERATED UNDER THIS AGREEMENT, IT SHALL BE KNOWN AS, CONSIDERED, AND SHALL IN FACT BE THE OPERATOR OF THE AIRCRAFT.

(C)    THE PARTIES UNDERSTAND THAT AN EXPLANATION OF FACTORS AND PERTINENT FEDERAL AVIATION REGULATIONS BEARING ON OPERATIONAL CONTROL CAN BE OBTAINED FROM THE LOCAL FLIGHT STANDARDS DISTRICT OFFICE.

(D)    OPERATOR CERTIFIES THAT IT SHALL COMPLY WITH THE TRUTH-IN-LEASING REQUIREMENTS DEFINED IN EXHIBIT B ATTACHED HERETO.

IN WITNESS WHEREOF, the parties hereto have caused the signatures of their authorized representatives to be affixed below on the day and year first above written. The persons signing below warrant their authority to sign.

 

Operator:

 

 

 

User:

ALTRIA CLIENT SERVICES INC.

 

 

MICHAEL E. SZYMANCZYK

By:

 

/s/ KEVIN P. BENNER

 

 

/s/ MICHAEL E. SZYMANCZYK

Name:

 

Kevin P. Benner

 

 

Title:

 

Senior Vice President, Human Resources

 

 

 

4


EXHIBIT A

 

Registration

Number

  

Serial
Number

  

Aircraft Description

N606PM

  

1512

  

2003 Gulfstream Aerospace Corporation G300 Aircraft

N608PM

  

1486

  

2002 Gulfstream Aerospace Corporation GIV-SP Aircraft

 

5


EXHIBIT B

INSTRUCTIONS FOR COMPLIANCE WITH

TRUTH IN LEASING REQUIREMENTS

 

1.

Mail a copy of the Agreement to the following address via certified mail, return receipt requested, immediately upon execution of the agreement (14 C.F.R. 91.23 requires that the copy be sent within twenty-four (24) hours after it is signed):

Federal Aviation Administration

Aircraft Registration Branch

ATTN: Technical Section

P.O. Box 25724

Oklahoma City, Oklahoma 73125

 

2.

Telephone or fax the nearest Flight Standards District Office at least forty-eight (48) hours prior to the first flight made under this Agreement.

 

3.

Carry a copy of the Agreement in the Aircraft at all times when the Aircraft is being operated under the Agreement.

 

6

 

 

 

EX-10.55 5 dex1055.htm FIRST AMENDMENT TO THE TIME SHARING AGREEMENT

Exhibit 10.55

FIRST AMENDMENT TO TIME SHARING AGREEMENT

On January 28, 2009, Altria Client Services Inc. (“Operator”) and Michael E. Szymanczyk (“User”) entered into a Time Sharing Agreement (the “Agreement”). Pursuant to paragraph 12 of the Agreement, Operator and User amend the Agreement as set forth below, effective November 12, 2009:

1. The first “WHEREAS” clause on page 1 of the Agreement is deleted in its entirety and replaced with the following language:

“WHEREAS, Operator owns or leases the aircraft more particularly described on Exhibit A attached hereto (collectively, the “Aircraft”);”.

2. The following aircraft is added to Exhibit A of the Agreement:

 

Registration

Number

  

Serial

Number

  

Aircraft Description

N802AG

  

5245

  

2009 Gulfstream Aerospace Corporation G550 Aircraft

 

All other terms and conditions of the Agreement remain in full force and effect. The persons signing below warrant their authority to sign.

 

Operator:

 

 

 

User:

ALTRIA CLIENT SERVICES INC.

 

 

 

MICHAEL E. SZYMANCZYK

By:

 

/s/ Kevin P. Benner

 

 

 

/s/ Michael E. Szymanczyk

Name:

 

Kevin P. Benner

 

 

 

Title:

 

Senior Vice President, Human Resources

 

 

 

 

 

 

 

1 of 1

BACK TO TOP

EX-10.53 5 dex1053.htm SECOND AMENDMENT TO THE TIME SHARING AGREEMENT

Exhibit 10.53

SECOND AMENDMENT TO TIME SHARING AGREEMENT

On January 28, 2009, Altria Client Services Inc. (“Operator”) and Michael E. Szymanczyk (“User”) entered into a Time Sharing Agreement (the “Agreement”). Pursuant to paragraph 12 of the Agreement, Operator and User amended the Agreement effective November 12, 2009. The parties wish to further amend the agreement effective October 14, 2010 as follows:

 

 

1.

Exhibit A to the Agreement is deleted in its entirety and is replaced with Exhibit A attached to this amendment.

Except as modified in this amendment, all other terms and conditions of the Agreement remain in full force and effect. The persons signing below warrant their authority to sign.

 

Operator:

 

 

User:

ALTRIA CLIENT SERVICES INC.

 

 

MICHAEL E. SZYMANCZYK

CHARLES N. WHITAKER

 

 

/s/ Charles N. Whitaker

 

 

/s/ Michael E. Szymanczyk


EXHIBIT A

 

Registration
Number

  

Serial Number

  

Aircraft Description

N802AG

  

5245

  

2009 Gulfstream Aerospace Corporation G550 Aircraft

N803AG

  

4194

  

2010 Gulfstream Aerospace Corporation G450 Aircraft

N804AG

  

4199

  

2010 Gulfstream Aerospace Corporation G450 Aircraft

 

2