Exhibit 10.36
Form of
Amendment
to Change in Control Agreement
WHEREAS, Fortune Brands, Inc. (the
“Company”) and
(“Executive”)
entered into a Change in Control Agreement on September 19,
2007 (the “Agreement”); and
WHEREAS, the Company and Executive
desire to amend the Agreement to comply with the requirements of
Sections 409A and 162(m) of the Internal Revenue Code and to make
certain technical corrections;
NOW, THEREFORE, the parties agree
that the Agreement shall be modified as follows, effective
January 1, 2009:
1. By substituting the following for
Section 1(g)(iii) of the Agreement:
(iii) the failure of the Company
substantially to maintain and to continue Executive’s
participation in the Company’s benefit plans as in effect at
the time of a Change in Control and with all subsequent
improvements (other than those plans or improvements that have
expired in accordance with their original terms), or the taking of
any action which would materially reduce Executive’s benefits
under any of such plans or deprive him of any material fringe
benefit enjoyed by Executive at the time of a Change in Control.
Such benefit plans shall include, but not be limited to, the
provisions for incentive compensation under the Annual Executive
Incentive Compensation Plan of the Company, the Fortune Brands
Pension Plan (the “Retirement Plan”), the Fortune
Brands, Inc. Supplemental Plan (the “Supplemental
Plan”) (including the supplemental profit-sharing feature of
the Supplemental Plan), the Fortune Brands Retirement Savings Plan
(including tax deferred and related Company matching contributions)
and the Long-Term Incentive Plan;
2. By substituting the following for
Section 2(b) of the Agreement:
(b) If the Company terminates the
Executive’s employment other than for Disability or Cause, or
if the Executive terminates his employment for Good Reason, and if
Executive has delivered and has not revoked an executed release of
claims in the form attached hereto as Exhibit A (as such release is
updated from time to time to reflect legal requirements), then in
addition to the Company paying the Executive his base salary and
accrued but unpaid vacation pay through the Termination
Date:
(i) the Company shall pay to the
Executive as severance pay in a lump sum on the eighth day
following the Executive’s Termination Date, subject to the
provisions of paragraphs 2(h) and (k), an amount equal to the
product of 2.99 times the sum of:
(A) his annual base salary at the
rate in effect on the date of Change in Control, plus
1
(B) his target annual bonus under
the Annual Executive Incentive Compensation Plan in effect in the
calendar year in which the Termination Date occurs, plus
(C) the amount that would have been
required to be allocated to the Executive’s account (assuming
that he elected the maximum employee contribution) for the year
immediately preceding the year in which the Termination Date occurs
under the Fortune Brands Retirement Savings Plan, including the
Company 401(k) matching contribution, and the profit-sharing
provisions of the Supplemental Plan; and
(ii) the Company shall pay the cost
of legal fees and expense incurred by Executive in order to obtain
or enforce any right or benefit provided by this Agreement, which
payment shall be made directly to the provider of services,
provided that such expenses shall be paid within the time period
required by Section 409A.
In the event the Termination Date
occurs within less than three years prior to the Executive's Normal
Retirement Date (as defined in the Retirement Plan), the multiplier
“2.99” in subsection (b)(i) of this Section 2
shall be changed so that it shall equal the number of whole years
and fraction thereof or fraction of a year that will elapse between
the Termination Date and Normal Retirement Date.
3. By substituting the following for
Section 2(c) of the Agreement:
(c) If the Company terminates the
Executive’s employment other than for Disability or Cause, or
if the Executive terminates his employment for Good Reason, the
Company shall maintain in full force and effect, for the
Executive’s continued benefit for a three (3) year
period (or, if shorter, the period until his Normal Retirement
Date) after the Termination Date, all employee life, health,
accident, disability, and medical plan coverage in which he was
participating immediately prior to the Termination Date, provided
that his continued participation is possible under the terms and
provisions of such plans. With respect to health coverage (medical,
dental and vision), Executive shall be required to pay the
applicable active employee rate of coverage for similar coverage,
and such coverage shall run concurrent with coverage required to be
provided under the Consolidated Omnibus Budget Reconciliation Act
of 1985 (“COBRA”). After the period of COBRA coverage,
Executive may be taxed on the value of the Company-provided
coverage. No other welfare or fringe benefits shall be provided
except as specifically provided in this Section.
2
4. By substituting the following for
that portion of Section 2(d) of the Agreement that precedes
paragraph (i) thereof:
(d) If the Company terminates the
Executive’s employment other than for Disability or Cause, or
if the Executive terminates his employment for Good Reason, then in
addition to the retirement benefits to which the Executive is
entitled under the Retirement Plan, the pension provisions of the
Supplemental Plan and any other defined benefit pension plan
maintained by the Company or any affiliate, and any other program,
practice or arrangement of the Company or any affiliate to provide
the Executive with a defined pension benefit after termination of
employment, and any successor plans thereto (all such plans being
collectively referred to herein as the “Pension
Plans”), the Company shall pay the Executive, at the same
time that pension benefits are paid under the Supplemental Plan, an
amount equal to the excess of (i) over (ii) below
where:
5. By substituting the following for
Section 2(e) of the Agreement:
(e) If the Company terminates the
Executive’s employment other than for Disability or Cause, or
the Executive terminates his employment for Good Reason, and if
Executive has delivered and has not revoked an executed release of
claims in the form attached hereto as Exhibit A (as such release is
updated from time to time to reflect legal requirements), the
Company shall pay to the Executive as additional severance pay in a
lump sum on
