Amendment to Severance and Retirement Agreement between Fortune Brands, Inc. and Norman H. Wesley (February 3, 2003)

Summary

This amendment updates the severance and retirement agreement between Fortune Brands, Inc. and executive Norman H. Wesley. It revises certain definitions and references to align with changes in the company's pension plan and clarifies the conditions and procedures under which the executive may be terminated for cause. The amendment ensures that only specific types of misconduct or failure to perform duties, following a defined process, can result in termination without severance benefits. All other terms of the original agreement remain unchanged.

EX-10.A2 4 c77041exv10wa2.txt AMENDMENT TO SEVERANCE AND RETIREMENT AGREEMENT EXHIBIT 10a2 SEVERANCE AND RETIREMENT AGREEMENT AMENDMENT dated as of February 3, 2003 to Severance Agreement dated as of January, 1, 1999 (the "Agreement"), as amended, between FORTUNE BRANDS, INC., a Delaware Corporation (the "Company"), and NORMAN H. WESLEY (the "Executive"). W I T N E S S E T H : WHEREAS, the Company and the Executive entered into the Agreement, as amended on January 1, 2000, in order to provide enhanced severance and retirement benefits in the event of termination of employment of the Executive under certain circumstances; and WHEREAS, the Company and the Executive desire to amend the Agreement in order to change the circumstances under which the Executive 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; NOW, THEREFORE, in consideration of the premises, the parties agree that the Severance Agreement is amended as follows: 1. Sections 1(b)(ii) and 10(k) are amended by changing the reference from "Retirement Plan for Employees and Former Employees of Fortune Brands, Inc." to "Fortune Brands Pension Plan". 2. Section 2(i) is amended by changing the reference "Average Actual Earnings" therein to "Final Average Compensation", and by changing the reference "Qualifying Employment" therein to "Vesting Service". 3. Section 3(a)(i) is amended by changing the reference "Average Actual Earnings" therein to "Final Average Compensation", by changing the reference "Qualifying Employment" therein to "Vesting Service", by changing the reference "Service" therein to "Benefit Service" and by changing the reference "Actual Earnings" therein to "Compensation". 4. Section 3(a) is further amended by changing the reference from "Actual Earnings" to "Compensation" in the last sentence thereof. 5. Section 10(a) is amended by changing the reference from "Actual Earnings" to "Compensation". 6. Section 10(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. 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 7. Section 10(j) is amended by changing the reference from "Qualifying Employment" to "Vesting Service". 8. Section 10(l) is amended by changing the reference from "Service" to "Benefit Service". 9. Section 10 is amended to reorder the definitions in alphabetical order. Except as amended hereby, all provisions of the Agreement remain in full force and effect. FORTUNE BRANDS, INC. [Seal] ATTEST: By /s/ Mark A. Roche ---------------------- /s/ Elizabeth Lane - ------------------------------------- Assistant Secretary /s/ Norman H. Wesley ------------------------------- Norman H. Wesley 3