Amendment to Change in Control Employment Agreement between Fortune Brands, Inc. and Norman H. Wesley

Summary

This amendment updates the employment agreement between Fortune Brands, Inc. and Norman H. Wesley regarding benefits if his employment ends after a change in control. It revises the definition and procedures for termination 'for cause,' clarifying what misconduct qualifies and the steps the company must follow. It also updates references to company benefit plans. All other terms of the original agreement remain unchanged.

EX-10.A1 3 c77041exv10wa1.txt AMENDMENT TO AGREEMENT EXHIBIT 10a1 January 1, 2003 Mr. Norman H. Wesley 225 W. Westminster Road Lake Forest, Illinois 60045 Dear Mr. Wesley: Reference is made to the agreement dated January 1, 1999, as amended, between Fortune Brands, Inc. (the "Company") and you covering the Company's obligation to make certain payments and provide certain benefits in the event of a termination of your employment following a change in control of the Company (the "Agreement"). In order to change the circumstances under which you may be terminated by the Company for cause without obtaining the benefits of this Agreement and to change certain references to terms used in the revised Fortune Brands Pension Plan, it is hereby agreed that the Agreement is amended as follows: 1. The definition of cause in Section 1(b) is amended in its entirety as follows: (b) Cause. You may be terminated for Cause if (i) you engage in specified misconduct and (ii) we comply with certain procedural requirements. (i) Specified Misconduct. To be terminated for Cause, you must either (A) engage in act(s) of dishonesty constituting a felony; or (B) willfully and continually fail substantially to perform your duties as an officer of the Company as those duties exist at the time of a change in control. You cannot be terminated for Cause, however, if your act(s) or failure (C) was done as a result of your bad judgment or negligence or your good faith belief that the act(s) or failure to act was not opposed to the interests of the Company; (D) meets the applicable standard of conduct for indemnification or reimbursement or payment of expenses under our By-laws, laws of the state of our incorporation or directors' and officers' liability insurance, as in effect at the time of the act(s) or failure to act; or (E) in the case of failure to perform duties only, results from your incapacity due to physical or mental illness. (ii) Procedural Requirements. We may not terminate you for Cause unless we comply with the following procedural requirements: (A) Termination for Cause due to failure substantially to perform duties. Before we may terminate you for willfully and continually failing substantially to perform your duties as an officer of the Company, our Board of Directors must deliver a demand for substantial performance which specifically identifies the manner in which our Board believes that you have not substantially performed your duties and you must be given a reasonable time after such demand to perform your duties. (B) Any termination for Cause. Before we may terminate you for Cause (1) our Board of Directors must hold a meeting for the purpose of determining whether you should be terminated for Cause; (2) you must receive reasonable notice in advance of the Board meeting with an opportunity for you and your representative to be heard before the Board; (3) three-quarters of our entire Board of Directors must affirmatively resolve in good faith to terminate you for Cause; and (4) you must receive a copy of the Board resolution setting forth the particulars of the for Cause termination and a notice of termination. 2. Section 2(d) is amended by changing references from "Actual Earnings" to "Compensation" and from "Retirement Plan for Employees and Former Employees of Fortune Brands, Inc." to "Fortune Brands Pension Plan". 3. Section 2(e) is amended by changing "Defined Contribution Plan of Fortune Brands, Inc. and Participating Operating Companies" to "Fortune Brands Retirement Savings Plan". Except as amended hereby, all provisions of the Agreement remain in full force and effect. Sincerely, FORTUNE BRANDS, INC. By: /s/ Mark A. Roche ---------------------- Accepted this 3rd day of February, 2003. /s/ Norman H. Wesley - ------------------------------------- Norman H. Wesley 2