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REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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PHILIP MORRIS COMPANIES INC.
(Exact name of registrant as specified in its charter)
VIRGINIA 13-326-245
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
120 PARK AVENUE
NEW YORK, NEW YORK 10017
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
---------------
1997 Performance Incentive Plan
(Full title of the plan)
---------------
G. PENN HOLSENBECK
Vice President, Associate General Counsel and Secretary
Philip Morris Companies Inc.
120 Park Avenue
New York, New York 10017
(Name and address of agent for service)
(212) 880-5000
(Telephone number, including area code, of agent for service)
---------------
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount maximum maximum Amount of
Title of securities to be offering price aggregate registration
to be registered registered per share(1) offering price(1) fee
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<S> <C> <C> <C> <C>
Common Stock, $0.33 1/3 60,000,000 shs. $41.8125 $2,508,750,000 $760,227.27
===========================================================================================
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(1) Estimated solely for the purpose of computing the registration fee and
calculated in accordance with Rule 457(c) under the Securities Act of 1933,
based upon the average of the high and low prices for the Common Stock reported
in the consolidated reporting system on June 4, 1997.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with the Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Philip Morris Companies Inc. (the
"Company") with the Commission (File No. 1-8940) are incorporated herein by
reference and made a part hereof: (i) the description of the Company's Common
Stock contained in the Company's Registration Statement on Form 8-B, dated July
1, 1985, as amended by Amendment No. 1 on Form 8, dated April 27, 1989; (ii)
the Company's Annual Report on Form 10-K for the year ended December 31, 1996;
(iii) the Company's Current Report on Form 8-K, dated January 30, 1997; and
(iv) the Company's Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1997.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), after the date of the Prospectus and prior to the filing of a post-
effective amendment that indicates that all securities offered have been sold
or that deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in the Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of the Prospectus to the extent that a statement contained herein
or in any other subsequently filed document that is incorporated by reference
herein modifies or supersedes such earlier statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of the Prospectus.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Virginia Stock Corporation Act (the "Virginia Act") permits the
Company to indemnify its officers and directors in connection with certain
actions, suits and proceedings brought against them if they acted in good faith
and believed their conduct to be in the best interests of the Company and, in
the case of criminal actions, had no reasonable cause to believe that the
conduct was unlawful. The Virginia Act requires such indemnification when a
director entirely prevails in the defense of any proceeding to which he was a
party because he is or was a director of the Company, and further provides that
the Company may make any other or further indemnity (including indemnity with
respect to a proceeding by or in the right of the Company), and may make
additional provision for advances and reimbursement of expenses, if authorized
by its articles of incorporation or stockholder-adopted by-laws, except an
indemnity against willful misconduct or a knowing violation of the criminal law.
The Virginia Act establishes a statutory limit on liability of officers and
directors of the Company for damages assessed against them in a suit brought by
or in the right of the Company or brought by or on behalf of stockholders of the
Company and authorizes the Company, with stockholder approval, to specify a
lower monetary limit on liability in the Company's articles of incorporation or
by-laws; however, the liability of an officer or director shall not be limited
if such officer or director engaged in willful misconduct or a knowing violation
of the criminal law or of any federal or state securities law. The Company's
articles of incorporation provide that an officer or director or former officer
or director of the Company shall be indemnified to the full extent permitted by
the Virginia Act as currently in effect or as hereafter amended in connection
with any action, suit or proceeding brought by or in the right of the Company or
brought by or on behalf of stockholders of the Company. The Company's articles
of incorporation further provide for the limitation or elimination of the
liability of an officer or director or former officer or director of the Company
for monetary damages to the Company or its stockholders in any action, suit or
proceeding, to the full extent permitted by the Virginia Act as currently in
effect or as hereafter amended. In addition, the Company carries insurance on
behalf of directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No.
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4. 1997 Performance Incentive Plan (filed as Exhibit A to the Company's proxy
statement dated March 10, 1997, and incorporated herein by reference).
4.2 Articles of Incorporation (filed as Exhibit 3.1 to the Company's Quarterly
Report on Form 10-Q for the quarterly period ended March 31, 1997, and
incorporated herein by reference).
4.3 By-Laws (filed herewith).
5 Opinion of Hunton & Williams as to the legality of the securities being
registered (filed herewith).
23.1 Consent of Hunton & Williams (included in Exhibit 5).
23.2 Consent of Coopers & Lybrand L.L.P. (filed herewith).
24 Powers of Attorney (filed as Exhibit 24 to the Company's Registration
Statement No. 333-16127, and incorporated herein by reference).
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ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended (the
"Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change in such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described under Item 6 above, or
otherwise, the registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities
Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in The City of New York, State of New York, on the 6th day of
June, 1997.
Philip Morris Companies Inc.
By: /s/Geoffrey C. Bible
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GEOFFREY C. BIBLE, CHAIRMAN OF THE BOARD
AND CHIEF EXECUTIVE OFFICER
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
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<S> <C> <C>
/s/ Geoffrey C. Bible Director, Chairman June 6, 1997
- -------------------------------------------------- Board and Chief
(GEOFFREY C. BIBLE) Executive Officer
/s/ Louis C. Camilleri Senior Vice President and June 6, 1997
- -------------------------------------------------- Chief Financial Officer
(LOUIS C. CAMILLERI)
/s/ Frank T. Toscano Vice President and June 6, 1997
- -------------------------------------------------- Controller
(FRANK T. TOSCANO)
Elizabeth E. Bailey, Murray H. Bring, Harold
Brown, William H. Donaldson, Jane Evans, Robert
E. R. Huntley, Rupert Murdoch, John D. Nichols,
Richard D. Parsons, Roger S. Penske, John S.
Reed, Stephen M. Wolf Directors
By: /s/ Louis C. Camilleri June 6, 1997
- --------------------------------------------------
(LOUIS C. CAMILLERI, ATTORNEY-IN-FACT)
</TABLE>
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Exhibit 4.3
BY-LAWS
OF
PHILIP MORRIS COMPANIES INC.
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. - The annual meeting of the stockholders for
the election of directors and for the transaction of such other business as may
properly come before the meeting, and any postponement or adjournment thereof,
shall be held on such date and at such time as the Board of Directors may in its
discretion determine.
SECTION 2. SPECIAL MEETINGS. - Unless otherwise provided by law, special
meetings of the stockholders may be called by the chairman of the Board of
Directors, or in the chairman's absence, the deputy chairman of the Board of
Directors (if any), the vice chairman of the Board of Directors (if any), the
president (if one shall have been elected by the Board of Directors) or, in the
absence of all of the foregoing, an executive vice president or by order of the
Board of Directors, whenever deemed necessary.
SECTION 3. PLACE OF MEETINGS. - All meetings of the stockholders shall be
held at such place in the Commonwealth of Virginia as from time to time may be
fixed by the Board of Directors.
SECTION 4. NOTICE OF MEETINGS. - Written notice, stating the place, day
and hour and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be given by mail not less than ten nor more
than sixty days before the date of the meeting (except as a different time is
specified herein or by law), to each stockholder of record having voting power
in respect of the business to be transacted thereat, at his or her address as it
appears on the stock transfer books of the Corporation.
Notice of a stockholders' meeting to act on an amendment of the Articles of
Incorporation, a plan of merger or share exchange, a proposed sale of all, or
substantially all of the Corporation's assets, otherwise than in the usual and
regular course of business, or the dissolution of the Corporation shall be
given, in the manner provided above, not less than twenty-five nor more than
sixty days before the date of the meeting and shall be accompanied, as
appropriate, by a copy of the proposed amendment, plan of merger or share
exchange or sale agreement.
May 28, 1997
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Notwithstanding the foregoing, a written waiver of notice signed by the
person or persons entitled to such notice, either before or after the time
stated therein, shall be equivalent to the giving of such notice. A stockholder
who attends a meeting shall be deemed to have (i) waived objection to lack of
notice or defective notice of the meeting, unless at the beginning of the
meeting he or she objects to holding the meeting or transacting business at the
meeting, and (ii) waived objection to consideration of a particular matter at
the meeting that is not within the purpose or purposes described in the meeting
notice, unless he or she objects to considering the matter when it is presented.
SECTION 5. QUORUM. - At all meetings of the stockholders, unless a
greater number or voting by classes is required by law, a majority of the shares
entitled to vote, represented in person or by proxy, shall constitute a quorum.
If a quorum is present, action on a matter is approved if the votes cast
favoring the action exceed the votes cast opposing the action, unless the vote
of a greater number or voting by classes is required by law or the Articles of
Incorporation, and except that in elections of directors those receiving the
greatest number of votes shall be deemed elected even though not receiving a
majority. Less than a quorum may adjourn.
SECTION 6. ORGANIZATION AND ORDER OF BUSINESS. - At all meetings of the
stockholders, the chairman of the Board of Directors or, in the chairman's
absence, the deputy chairman of the Board of Directors (if any), the vice
chairman of the Board of Directors (if any), the president (if one shall have
been elected by the Board of Directors) or, in the absence of all of the
foregoing, the most senior executive vice president, shall act as chairman. In
the absence of all of the foregoing officers or, if present, with their consent,
a majority of the shares entitled to vote at such meeting, may appoint any
person to act as chairman. The secretary of the Corporation or, in the
secretary's absence, an assistant secretary, shall act as secretary at all
meetings of the stockholders. In the event that neither the secretary nor any
assistant secretary is present, the chairman may appoint any person to act as
secretary of the meeting.
The chairman shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts and things as are necessary
or desirable for the proper conduct of the meeting, including, without
limitation, the establishment of procedures for the dismissal of business not
properly presented, the maintenance of order and safety, limitations on the time
allotted to questions or comments on the affairs of the Corporation,
restrictions on entry to such meeting after the time prescribed for the
commencement thereof and the opening and closing of the voting polls.
At each annual meeting of stockholders, only such business shall be
conducted as shall have been properly brought before the meeting (a) by or at
the direction of the Board of Directors or (b) by any stockholder of the
Corporation who shall be entitled to vote at such meeting and who complies with
the notice
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procedures set forth in this Section 6. In addition to any other applicable
requirements, for business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the secretary of the Corporation. To be timely, a stockholder's notice must be
given, either by personal delivery or by United States certified mail, postage
prepaid, and received at the principal executive offices of the Corporation (i)
not less than 120 days nor more than 150 days before the first anniversary of
the date of the Corporation's proxy statement in connection with the last annual
meeting of stockholders or (ii) if no annual meeting was held in the previous
year or the date of the applicable annual meeting has been changed by more than
30 days from the date contemplated at the time of the previous year's proxy
statement, not less than 60 days before the date of the applicable annual
meeting. A stockholder's notice to the secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting (a) a brief
description of the business desired to be brought before the annual meeting,
including the complete text of any resolutions to be presented at the annual
meeting, and the reasons for conducting such business at the annual meeting, (b)
the name and address, as they appear on the Corporation's stock transfer books,
of such stockholder proposing such business, (c) a representation that such
stockholder is a stockholder of record and intends to appear in person or by
proxy at such meeting to bring the business before the meeting specified in the
notice, (d) the class and number of shares of stock of the Corporation
beneficially owned by the stockholder and (e) any material interest of the
stockholder in such business. Notwithstanding anything in the By-Laws to the
contrary, no business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this Section 6. The chairman of an
annual meeting shall, if the facts warrant, determine that the business was not
brought before the meeting in accordance with the procedures prescribed by this
Section 6. If the chairman should so determine,he or she shall so declare to the
meeting and the business not properly brought before the meeting shall not be
transacted. Notwithstanding the foregoing provisions of this Section 6, a
stockholder seeking to have a proposal included in the Corporation's proxy
statement shall comply with the requirements of Regulation 14A under the
Securities Exchange Act of 1934, as amended (including, but not limited to, Rule
14a-8 or its successor provision). The secretary of the Corporation shall
deliver each such stockholder's notice that has been timely received to the
Board of Directors or a committee designated by the Board of Directors for
review.
SECTION 7. VOTING. - A stockholder may vote either in person or by proxy
executed in writing by the stockholder or by his or her duly authorized
attorney-in-fact. No stockholder may authorize more than four persons to act for
him or her, and any proxy shall be delivered to the secretary of the meeting at
or prior to the time designated by the chairman or in the order of business for
so delivering such proxies. No proxy shall be valid after eleven months from its
date, unless otherwise provided in the proxy. Each holder of record of stock of
any class shall, as to all
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matters in respect of which stock of such class has voting power, be entitled to
such vote as is provided in the Articles of Incorporation for each share of
stock of such class standing in the holders's name on the books of the
Corporation. Unless required by statute or determined by the chairman to be
advisable, the vote on any questions need not be by ballot. On a vote by ballot,
each ballot shall be signed by the stockholder voting or by such stockholder's
proxy, if there be such proxy.
SECTION 8. INSPECTORS. - At every meeting of the stockholders for
election of directors, the proxies shall be received and taken in charge, all
ballots shall be received and counted and all questions touching the
qualifications of voters, the validity of proxies, and the acceptance or
rejection of votes shall be decided, by two inspectors. Such inspectors shall be
appointed by the chairman of the meeting. They shall be sworn faithfully to
perform their duties and shall in writing certify to the returns. No candidate
for election as director shall be appointed or act as inspector.
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. - The business and affairs of the Corporation
shall be managed under the direction of the Board of Directors.
SECTION 2. NUMBER. - The number of directors shall be thirteen (13).
SECTION 3. TERM OF OFFICE AND QUALIFICATION. - Each director shall serve
for the term for which he or she shall have been elected and until a successor
shall have been duly elected.
SECTION 4. NOMINATION AND ELECTION OF DIRECTORS. - At each annual meeting
of stockholders, the stockholders entitled to vote shall elect the directors. No
person shall be eligible for election as a director unless nominated in
accordance with the procedures set forth in this Section 4. Nominations of
persons for election to the Board of Directors may be made by the Board of
Directors or any committee designated by the Board of Directors or by any
stockholder entitled to vote for the election of directors at the applicable
meeting of stockholders who complies with the notice procedures set forth in
this Section 4. Such nominations, other than those made by the Board of
Directors or any committee designated by the Board of Directors, may be made
only if written notice of a stockholder's intent to nominate one or more persons
for election as directors at the applicable meeting of stockholders has been
given,either by personal delivery or by United States certified mail, postage
prepaid, to the secretary of the Corporation and received (i) not less than 120
days nor more than 150 days before the first anniversary of the date of the
Corporation's proxy statement in connection with the last annual meeting of
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stockholders, or (ii) if no annual meeting was held in the previous year or the
date of the applicable annual meeting has been changed by more than 30 days from
the date contemplated at the time of the previous year's proxy statement, not
less than 60 days before the date of the applicable annual meeting, or (iii)
with respect to any special meeting of stockholders called for the election of
directors, not later than the close of business on the seventh day following the
date on which notice of such meeting is first given to stockholders. Each such
stockholder's notice shall set forth (a) as to the stockholder giving the
notice, (i) the name and address, as they appear on the Corporation's stock
transfer books, of such stockholder, (ii) a representation that such stockholder
is a stockholder of record and intends to appear in person or by proxy at such
meeting to nominate the person or persons specified in the notice, (iii) the
class and number of shares of stock of the Corporation beneficially owned by
such stockholder, and (iv) a description of all arrangements or understandings
between such stockholder and each nominee and any other person or persons
(naming such person or persons) pursuant to which the nomination or nominations
are to be made by such stockholder; and (b) as to each person whom the
stockholder proposes to nominate for election as a director, (i) the name, age,
business address and, if known, residence address of such person, (ii) the
principal occupation or employment of such person, (iii) the class and number of
shares of stock of the Corporation which are beneficially owned by such person,
(iv) any other information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors or is otherwise
required by the rules and regulations of the Securities and Exchange Commission
promulgated under the Securities Exchange Act of 1934, as amended, and (v) the
written consent of such person to be named in the proxy statement as a nominee
and to serve as a director if elected. The secretary of the Corporation shall
deliver each such stockholder's notice that has been timely received to the
Board of Directors or a committee designated by the Board of Directors for
review. Any person nominated for election as director by the Board of Directors
or any committee designated by the Board of Directors shall, upon the request of
the Board of Directors or such committee, furnish to the secretary of the
Corporation all such information pertaining to such person that is required to
be set forth in a stockholder's notice of nomination. The chairman of the
meeting of stockholders shall, if the facts warrant, determine that a nomination
was not made in accordance with the procedures prescribed by this Section 4. If
the chairman should so determine, he or she shall so declare to the meeting and
the defective nomination shall be disregarded.
SECTION 5. ORGANIZATION. - At all meetings of the Board of Directors, the
chairman of the Board of Directors or, in the chairman's absence, the deputy
chairman of the Board of Directors (if any), the vice chairman of the Board of
Directors (if any), the president (if one shall have been elected by the Board
of Directors) or, in the absence of all of the foregoing, the senior most
executive vice president, shall act as chairman of the meeting. The secretary of
the Corporation or, in the secretary's absence, an assistant secretary, shall
act as secretary of meetings of
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the Board of Directors. In the event that neither the secretary nor any
assistant secretary shall be present at such meeting, the chairman of the
meeting shall appoint any person to act as secretary of the meeting.
SECTION 6. VACANCIES. - Any vacancy occurring in the Board of
Directors, including a vacancy resulting from amending these By-Laws to increase
the number of directors by thirty percent or less, may be filled by the
affirmative vote of a majority of the remaining directors though less than a
quorum of the Board of Directors.
SECTION 7. PLACE OF MEETING. - Meetings of the Board of Directors,
regular or special, may be held either within or without the Commonwealth of
Virginia.
SECTION 8. ORGANIZATIONAL MEETING. - The annual organizational meeting of
the Board of Directors shall be held immediately following adjournment of the
annual meeting of stockholders and at the same place, without the requirement of
any notice other than this provision of the By-Laws.
SECTION 9. REGULAR MEETINGS: NOTICE. - Regular meetings of the Board of
Directors shall be held at such times and places as it may from time to time
determine. Notice of such meetings need not be given if the time and place have
been fixed at a previous meeting.
SECTION 10. SPECIAL MEETINGS. - Special meetings of the Board of Directors
shall be held whenever called by order of the chairman of the Board of
Directors, the deputy chairman of the Board of Directors (if any), the vice
chairman of the Board of Directors (if any), the president (if any) or two of
the directors. Notice of each such meeting, which need not specify the business
to be transacted thereat, shall be mailed to each director, addressed to his or
her residence or usual place of business, at least two days before the day on
which the meeting is to be held, or shall be sent to such place by telegraph,
telex or telecopy or be delivered personally or by telephone, not later than the
day before the day on which the meeting is to be held.
SECTION 11. WAIVER OF NOTICE. - Whenever any notice is required to be
given to a director of any meeting for any purpose under the provisions of law,
the Articles of Incorporation or these By-Laws, a waiver thereof in writing
signed by the person or persons entitled to such notice, either before or after
the time stated therein, shall be equivalent to the giving of such notice. A
director's attendance at or participation in a meeting waives any required
notice to him or her of the meeting unless at the beginning of the meeting or
promptly upon the director's arrival, he or she objects to holding the meeting
or transacting business at the meeting and does not thereafter vote for or
assent to action taken at the meeting.
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SECTION 12. QUORUM AND MANNER OF ACTING. - Except where otherwise provided
by law, a majority of the directors fixed by these By-Laws at the time of any
regular or special meeting shall constitute a quorum for the transaction of
business at such meeting, and the act of a majority of the directors present at
any such meeting at which a quorum is present shall be the act of the Board of
Directors. In the absence of a quorum, a majority of those present may adjourn
the meeting from time to time until a quorum be had. Notice of any such
adjourned meeting need not be given.
SECTION 13. ORDER OF BUSINESS. - At all meetings of the Board of Directors
business may be transacted in such order as from time to time the Board of
Directors may determine.
SECTION 14. COMMITTEES. - In addition to the executive committee
authorized by Article III of these By-Laws, other committees, consisting of two
or more directors, may be designated by the Board of Directors by a resolution
adopted by the greater number of (i) a majority of all directors in office at
the time the action is being taken or (ii) the number of directors required to
take action under Article II, Section 12 hereof. Any such committee, to the
extent provided in the resolution of the Board of Directors designating the
committee, shall have and may exercise the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation,
except as limited by law.
ARTICLE III
EXECUTIVE COMMITTEE
SECTION 1. HOW CONSTITUTED AND POWERS. - The Board of Directors, by
resolution adopted pursuant to Article II, Section 14 hereof, may designate, in
addition to the chairman of the Board of Directors, one or more directors to
constitute an executive committee, who shall serve during the pleasure of the
Board of Directors. The executive committee, to the extent provided in such
resolution and permitted by law, shall have and may exercise all of the
authority of the Board of Directors.
SECTION 2. ORGANIZATION, ETC. - The executive committee may choose a
chairman and secretary. The executive committee shall keep a record of its acts
and proceedings and report the same from time to time to the Board of Directors.
SECTION 3. MEETINGS. - Meetings of the executive committee may be called
by any member of the committee. Notice of each such meeting, which need not
specify the business to be transacted thereat, shall be mailed to each member of
the committee, addressed to his or her residence or usual place of business, at
least two
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days before the day on which the meeting is to be held or shall be sent to such
place by telegraph, telex or telecopy or be delivered personally or by
telephone, not later than the day before the day on which the meeting is to be
held.
SECTION 4. QUORUM AND MANNER OF ACTING. - A majority of the executive
committee shall constitute a quorum for transaction of business, and the act of
a majority of those present at a meeting at which a quorum is present shall be
the act of the executive committee. The members of the executive committee
shall act only as a committee, and the individual members shall have no powers
as such.
SECTION 5. REMOVAL. - Any member of the executive committee may be
removed, with or without cause, at any time, by the Board of Directors.
SECTION 6. VACANCIES. - Any vacancy in the executive committee shall be
filled by the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. NUMBER. - The officers of the Corporation shall be a chairman
of the Board of Directors, a deputy chairman of the Board of Directors (if
elected by the Board of Directors), a president (if elected by the Board of
Directors), one or more vice chairmen of the Board of Directors (if elected by
the Board of Directors), a chief operating officer (if elected by the Board of
Directors), one or more vice presidents (one or more of whom may be designated
executive vice president or senior vice president), a treasurer, a controller, a
secretary, one or more assistant treasurers, assistant controllers and assistant
secretaries and such other officers as may from time to time be chosen by the
Board of Directors. Any two or more offices may be held by the same person.
SECTION 2. ELECTION, TERM OF OFFICE AND QUALIFICATIONS. - All officers of
the Corporation shall be chosen annually by the Board of Directors, and each
officer shall hold office until a successor shall have been duly chosen and
qualified or until the officer resigns or is removed in the manner hereinafter
provided. The chairman of the Board of Directors, the deputy chairman of the
Board of Directors (if any), the president (if any) and the vice chairmen of the
Board of Directors (if any) shall be chosen from among the directors.
SECTION 3. VACANCIES. - If any vacancy shall occur among the officers of
the Corporation, such vacancy shall be filled by the Board of Directors.
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SECTION 4. OTHER OFFICERS, AGENTS AND EMPLOYEES - THEIR POWERS AND
DUTIES. -The Board of Directors may from time to time appoint such other
officers as the Board of Directors may deem necessary, to hold office for such
time as may be designated by it or during its pleasure, and the Board of
Directors or the chairman of the Board of Directors may appoint, from time to
time, such agents and employees of the Corporation as may be deemed proper, and
may authorize any officers to appoint and remove agents and employees. The Board
of Directors or the chairman of the Board of Directors may from time to time
prescribe the powers and duties of such other officers, agents and employees of
the Corporation.
SECTION 5. REMOVAL. - Any officer, agent or employee of the Corporation
may be removed, either with or without cause, by a vote of a majority of the
Board of Directors or, in the case of any agent or employee not appointed by the
Board of Directors, by a superior officer upon whom such power of removal may be
conferred by the Board of Directors or the chairman of the Board of Directors.
SECTION 6. CHAIRMAN OF THE BOARD OF DIRECTORS AND CHIEF EXECUTIVE
OFFICER. -The chairman of the Board of Directors shall preside at meetings of
the stockholders and of the Board of Directors and shall be a member of the
executive committee. The chairman shall be the Chief Executive Officer of the
Corporation and shall be responsible to the Board of Directors. He or she shall
be responsible for the general management and control of the business and
affairs of the Corporation and shall see to it that all orders and resolutions
of the Board of Directors are implemented. The chairman shall from, time to
time, report to the Board of Directors on matters within his or her knowledge
which the interests of the Corporation may require be brought to its notice. The
chairman shall do and perform such other duties as from time to time the Board
of Directors may prescribe.
SECTION 7. DEPUTY CHAIRMAN OF THE BOARD OF DIRECTORS. - In the absence of
the chairman of the Board of Directors, the deputy chairman of the Board of
Directors (if elected by the Board of Directors) shall preside at meetings of
the stockholders and of the Board of Directors. The deputy chairman shall be
responsible to the chairman of the Board of Directors and shall perform such
duties as shall be assigned to him or her by the chairman of the Board of
Directors. The deputy chairman shall from time to time report to the chairman of
the Board of Directors on matters within the deputy chairman's knowledge which
the interests of the Corporation may require be brought to the chairman's
notice.
SECTION 8. PRESIDENT. - In the absence of the chairman of the Board of
Directors and the deputy chairman of the Board of Directors (if any), the
president (if one shall have been elected by the Board of Directors) shall
preside at meetings of the stockholders and of the Board of Directors. The
president shall be responsible to the chairman of the Board of Directors.
Subject to the authority of the chairman of the Board of Directors, the
president shall be devoted to the Corporation's business
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and affairs under the basic policies set by the Board of Directors and the
chairman of the Board of Directors. He or she shall from, time to time, report
to the chairman of the Board of Directors on matters within the president's
knowledge which the interests of the Corporation may require be brought to the
chairman's notice. In the absence of the chairman of the Board of Directors and
the deputy chairman of the Board of Directors (if any), the president (if any)
shall, except as otherwise directed by the Board of Directors, have all of the
powers and the duties of the chairman of the Board of Directors. The president
(if any) shall do and perform such other duties as from time to time the Board
of Directors or the chairman of the Board of Directors may prescribe.
SECTION 9. VICE CHAIRMEN OF THE BOARD OF DIRECTORS. - In the absence of
the chairman of the Board of Directors, the deputy chairman of the Board of
Directors (if any) and the president (if any), the vice chairman of the Board of
Directors designated for such purpose by the chairman of the Board of Directors
(if any) shall preside at meetings of the stockholders and of the Board of
Directors. Each vice chairman of the Board of Directors shall be responsible to
the chairman of the Board of Directors. Each vice chairman of the Board of
Directors shall from time to time report to the chairman of the Board of
Directors on matters within the vice chairman's knowledge which the interests of
the Corporation may require be brought to the chairman's notice. In the absence
or inability to act of the chairman of the Board of Directors, the deputy
chairman of the Board of Directors (if any) and the president (if any), such
vice chairman of the Board of Directors as the chairman of the Board of
Directors may designate for the purpose shall have the powers and discharge the
duties of the chairman of the Board of Directors. In the event of the failure
or inability of the chairman of the Board of Directors to so designate a vice
chairman of the Board of Directors, the Board of Directors may designate a vice
chairman of the Board of Directors who shall have the powers and discharge the
duties of the chairman of the Board of Directors.
SECTION 10. CHIEF OPERATING OFFICER. - The chief operating officer (if
any) shall be responsible to the Chairman of the Board of Directors for the
principal operating businesses of the Corporation and shall perform those duties
which may from time to time be assigned.
SECTION 11. VICE PRESIDENTS. - The vice presidents of the Corporation
shall assist the chairman of the Board of Directors, the deputy chairman of the
Board of Directors, the president (if any) and the vice chairmen (if any) of the
Board of Directors in carrying out their respective duties and shall perform
those duties which may from time to time be assigned to them. The chief
financial officer shall be a vice president of the Corporation (or more senior)
and shall be responsible for the management and supervision of the financial
affairs of the Corporation.
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SECTION 12. TREASURER. - The treasurer shall have charge of the funds,
securities, receipts and disbursements of the Corporation. He or she shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such banks or trust companies or with such bankers or other
depositaries as the Board of Directors may from time to time designate. The
treasurer shall render to the Board of Directors, the chairman of the Board of
Directors, the deputy chairman of the Board of Directors (if any), the president
(if any), the vice chairmen of the Board of Directors (if any), and the chief
financial officer, whenever required by any of them, an account of all of his
transactions as treasurer. If required, the treasurer shall give a bond in such
sum as the Board of Directors may designate, conditioned upon the faithful
performance of the duties of the treasurer's office and the restoration to the
Corporation at the expiration of his or her term of office or in case of death,
resignation or removal from office, of all books, papers, vouchers, money or
other property of whatever kind in his or her possession or under his or her
control belonging to the Corporation. The treasurer shall perform such other
duties as from time to time may be assigned to him or her.
SECTION 13. ASSISTANT TREASURERS. - In the absence or disability of the
treasurer, one or more assistant treasurers shall perform all the duties of the
treasurer and, when so acting, shall have all the powers of, and be subject to
all restrictions upon, the treasurer. Assistant treasurers shall also perform
such other duties as from time to time may be assigned to them.
SECTION 14. SECRETARY. - The secretary shall keep the minutes of all
meetings of the stockholders and of the Board of Directors in a book or books
kept for that purpose. He or she shall keep in safe custody the seal of the
Corporation, and shall affix such seal to any instrument requiring it. The
secretary shall have charge of such books and papers as the Board of Directors
may direct. He or she shall attend to the giving and serving of all notices of
the Corporation and shall also have such other powers and perform such other
duties as pertain to the secretary's office, or as the Board of Directors, the
chairman of the Board of Directors, the deputy chairman of the Board of
Directors (if any), the president (if any) or any vice chairman of the Board of
Directors may from time to time prescribe.
SECTION 15. ASSISTANT SECRETARIES. - In the absence or disability of the
secretary, one or more assistant secretaries shall perform all of the duties of
the secretary and, when so acting, shall have all of the powers of, and be
subject to all the restrictions upon, the secretary. Assistant secretaries shall
also perform such other duties as from time to time may be assigned to them.
SECTION 16. CONTROLLER. - The controller shall be administrative head of
the controller's department. He or she shall be in charge of all functions
relating to accounting and the preparation and analysis of budgets and
statistical reports and shall establish, through appropriate channels, recording
and reporting procedures
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and standards pertaining to such matters. The controller shall report to the
chief financial officer and shall aid in developing internal corporate policies
whereby the business of the Corporation shall be conducted with the maximum
safety, efficiency and economy. The controller shall be available to all
departments of the Corporation for advice and guidance in the interpretation and
application of policies which are within the scope of his or her authority. The
controller shall perform such other duties as from time to time may be assigned
to him or her.
SECTION 17. ASSISTANT CONTROLLERS. - In the absence or disability of the
controller, one or more assistant controllers shall perform all of the duties of
the controller and, when so acting, shall have all of the powers of, and be
subject to all the restrictions upon, the controller. Assistant controllers
shall also perform such other duties as from time to time may be assigned to
them.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 1. CONTRACTS. - The chairman of the Board of Directors, the
deputy chairman of the Board of Directors (if any), the president (if any), any
vice chairman of the Board of Directors (if any), any vice president, the
treasurer and such other persons as the chairman of the Board of Directors may
authorize shall have the power to execute any contract or other instrument on
behalf of the Corporation; no other officer, agent or employee shall, unless
otherwise in these By-Laws provided, have any power or authority to bind the
Corporation by any contract or acknowledgement, or pledge its credit or render
it liable pecuniarily for any purpose or to any amount.
SECTION 2. LOANS. - The chairman of the Board of Directors, the deputy
chairman of the Board of Directors (if any), the president (if any), any vice
chairman of the Board of Directors (if any), any vice president, the treasurer
and such other persons as the Board of Directors may authorize shall have the
power to effect loans and advances at any time for the Corporation from any
bank, trust company or other institution, or from any corporation, firm or
individual, and for such loans and advances may make, execute and deliver
promissory notes or other evidences of indebtedness of the Corporation, and, as
security for the payment of any and all loans, advances, indebtedness and
liability of the Corporation, may pledge, hypothecate or transfer any and all
stocks, securities and other personal property at any time held by the
Corporation, and to that end endorse, assign and deliver the same.
SECTION 3. VOTING OF STOCK HELD. - The chairman of the Board of
Directors, the deputy chairman of the Board of Directors (if any), the president
(if any), any
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vice chairman of the Board of Directors (if any), any vice president or the
secretary may from time to time appoint an attorney or attorneys or agent or
agents of the Corporation to cast the votes that the Corporation may be entitled
to cast as a stockholder or otherwise in any other corporation, any of whose
stock or securities may be held by the Corporation, at meetings of the holders
of the stock or other securities of such other corporation, or to consent in
writing to any action by any other such corporation, and may instruct the person
or persons so appointed as to the manner of casting such votes or giving such
consent, and may execute or cause to be executed on behalf of the Corporation
such written proxies, consents, waivers or other instruments as such officer may
deem necessary or proper in the premises; or the chairman of the Board of
Directors, the deputy chairman of the Board of Directors (if any), the president
(if any), any vice chairman of the Board of Directors (if any), any vice
president or the secretary may attend in person any meeting of the holders of
stock or other securities of such other corporation and thereat vote or exercise
any and all powers of the Corporation as the holder of such stock or other
securities of such other corporation.
ARTICLE VI
CERTIFICATES REPRESENTING SHARES
Certificates representing shares of the Corporation shall be signed by the
chairman of the Board of Directors, the deputy chairman of the Board of
Directors (if any), or the vice chairman of the Board of Directors (if any), or
the president of the Corporation (if any) and the secretary or an assistant
secretary. Any and all signatures on such certificates, including signatures of
officers, transfer agents and registrars, may be facsimile.
ARTICLE VII
DIVIDENDS
The Board of Directors may declare dividends from funds of the Corporation
legally available therefor.
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ARTICLE VIII
SEAL
The Board of Directors shall provide a suitable seal or seals, which shall
be in the form of a circle, and shall bear around the circumference the words
"Philip Morris Companies Inc." and in the center the word and figures "Virginia,
1985."
ARTICLE IX
FISCAL YEAR
The fiscal year of the Corporation shall be the calendar year.
ARTICLE X
AMENDMENT
The power to alter, amend or repeal the By-Laws of theCorporation or to
adopt new By-Laws shall be vested in the Board of Directors, but By-Laws made by
the Board of Directors may be repealed or changed by the stockholders, or new
By-Laws may be adopted by the stockholders, and the stockholders may prescribe
that any By-Laws made by them shall not be altered, amended or repealed by the
directors.
ARTICLE XI
EMERGENCY BY-LAWS
If a quorum of the Board of Directors cannot be readily assembled because
of some catastrophic event, and only in such event, these By-Laws shall, without
further action by the Board of Directors, be deemed to have been amended for the
duration of such emergency, as follows:
SECTION 1. SECTION 6 OF ARTICLE II SHALL READ AS FOLLOWS:
Any vacancy occurring in the Board of Directors may be filled by the
affirmative vote of a majority of the directors present at a meeting of the
Board of Directors called in accordance with these By-Laws.
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SECTION 2. THE FIRST SENTENCE OF SECTION 10 OF ARTICLE II SHALL READ AS
FOLLOWS:
Special meetings of the Board of Directors shall be held whenever called by
order of the chairman of the Board of Directors or a deputy chairman (if
any),or of the president (if any) or any vice chairman of the Board of
Directors (if any) or any director or of any person having the powers and
duties of the chairman of the Board of Directors, the deputy chairman, the
president or any vice chairman of the Board of Directors.
SECTION 3. SECTION 12 OF ARTICLE II SHALL READ AS FOLLOWS:
The directors present at any regular or special meeting called in
accordance with these By-Laws shall constitute a quorum for the transaction
of business at such meeting, and the action of a majority of such directors
shall be the act of the Board of Directors, provided, however, that in the
event that only one director is present at any such meeting no action
except the election of directors shall be taken until at least two
additional directors have been elected and are in attendance.
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Exhibit 5
[LETTERHEAD OF HUNTON & WILLIAMS]
June 6, 1997
The Board of Directors
Philip Morris Companies Inc.
120 Park Avenue
New York, New York 10017-5592
PHILIP MORRIS COMPANIES INC.
REGISTRATION STATEMENT ON FORM S-8
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to Philip Morris Companies Inc., a Virginia
corporation (the "Company"), in connection with the preparation and filing of a
registration statement on Form S-8 under the Securities Act of 1933, as amended,
with respect to 60 million shares of the Company's Common Stock, $0.33 1/3 par
value (the "Shares"), to be offered pursuant to the Philip Morris Companies Inc.
1997 Performance Incentive Plan (the "Plan").
In rendering this opinion, we have relied upon, among other things, our
examination of the Plan and such records of the Company and certificates of its
officers and of public officials as we have deemed necessary.
Based upon the foregoing and the further qualifications stated below, we
are of the opinion that:
1. the Company is duly incorporated, validly existing and in good
standing under the laws of the Commonwealth of Virginia; and
2. the Shares have been duly authorized and, when issued in accordance
with the terms of the Plan, will be legally issued, fully paid and non-
assessable.
<PAGE>
The Board of Directors
Philip Morris Companies Inc.
June 6, 1997
Page 2
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to such registration statement.
Very truly yours,
/s/ HUNTON & WILLIAMS
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Philip Morris Companies Inc. (the "Company") on Form S-8 of our reports, dated
January 27, 1997, on our audits of the consolidated financial statements and
financial statement schedule of the Company as of December 31, 1996 and 1995,
and for each of the three years in the period ended December 31, 1996, which
reports are included or incorporated by reference in the Company's Annual Report
on Form 10-K for the year ended December 31, 1996.
/s/Coopers and Lybrand, L.L.P.
------------------------------------
COOPERS & LYBRAND L.L.P.
New York, New York
June 4, 1997
