{"id":39189,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-gillette-co-and-james-m-kilts.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-gillette-co-and-james-m-kilts","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-gillette-co-and-james-m-kilts.html","title":{"rendered":"Employment Agreement – Gillette Co. and James M. Kilts"},"content":{"rendered":"\n EMPLOYMENT AGREEMENT\n\n AGREEMENT, made and entered into as of January 19, 2001 by and between The\nGillette Company, a Delaware corporation (together with its successors and\nassigns permitted under this Agreement, the \"Company\"), and James M. Kilts (the\n\"Executive\").\n\n W I T N E S S E T H :\n - - - - - - - - - -\n\n WHEREAS, the Company desires to employ the Executive and to enter into an\nagreement embodying the terms of such employment (this \"Agreement\") and the\nExecutive desires to enter into this Agreement and to accept such employment,\nsubject to the terms and provisions of this Agreement;\n\n NOW, THEREFORE, in consideration of the premises and mutual covenants\ncontained herein and for other good and valuable consideration, the receipt of\nwhich is mutually acknowledged, the Company and the Executive (individually a\n\"Party\" and together the \"Parties\") agree as follows:\n\n 1. Definitions.\n -----------\n\n (a) \"Affiliate\" of a specified person or entity shall mean a\nperson or entity that directly or indirectly controls, is controlled by, or is\nunder common control with the person or entity specified.\n\n (b) \"Base Salary\" shall mean the annualized salary provided for in\nSection 4 below or any increased salary granted to the Executive pursuant to\nSection 4.\n\n (c) \"Board\" shall mean the Board of Directors of the Company.\n\n (d) \"Bonus Payment Amount\" shall mean the amount actually paid to\nthe Executive pursuant to Section 13 of the Company's Incentive Bonus Plan or\nany comparable provision of any successor annual bonus plan.\n\n (e) \"Cause\" shall mean:\n\n (i) the Executive is convicted of, or pleads guilty \nor nolo contendere to, a felony or of any crime involving moral turpitude; or\n\n\n\n\n\n\n\n\n \n\n (ii) the Executive is guilty of willful gross neglect\nin carrying out his duties under this Agreement or of willful gross misconduct \nthat results, or could reasonably be expected to result, in either case, in \nmaterial harm to the business or reputation of the Company, unless, in either \ncase, the Executive acted, or failed to act, in a good faith belief that such \nact or failure to act was in, or not contrary to, the best interests of the \nCompany.\n\n (f) \"Change of Control\" shall mean\n\n (i) The acquisition by any individual, entity or \ngroup (within the meaning of Section 13(d)(3) or 14(d)(2)\nof the Securities Exchange Act of 1934, as amended (the \"Exchange Act\")) (a\n\"Person\") of beneficial ownership (within the meaning of Rule 13d-3 promulgated\nunder the Exchange Act) of 20% or more of either (A) the then-outstanding shares\nof common stock of the Company (the \"Outstanding Company Common Stock\") or (B)\nthe combined voting power of the then-outstanding voting securities of the\nCompany entitled to vote generally in the election of directors (the\n\"Outstanding Company Voting Securities\"); provided, however, that, for purposes\nof this Section 1(f)(i), the following acquisitions of Outstanding Company\nCommon Stock or Outstanding Company Voting Securities shall not constitute a\nChange of Control: (i) any acquisition directly from the Company, (ii) any\nacquisition by the Company, (iii) any acquisition by any employee benefit plan\n(or related trust) sponsored or maintained by the Company or any Affiliated\nCompany or (iv) any acquisition by any corporation pursuant to a transaction\nthat is excluded from Section 1(f)(iii) because it complies with Sections\nl(f)(iii)(A), l(f)(iii)(B) and l(f)(iii)(C).\n\n (ii) Individuals who, as of the date hereof, \nconstitute the Board (the \"Incumbent Board\") cease for any reason to constitute\nat least a majority of the Board; provided, however, that\nany individual becoming a director subsequent to the date hereof whose election,\nor nomination for election by the Company's stockholders, was approved by a vote\nof at least a majority of the directors then comprising the Incumbent Board\nshall be considered as though such individual were a member of the Incumbent\nBoard, but excluding, for this purpose, any such individual whose initial\nassumption of office occurs as a result of an actual or threatened election\ncontest with respect to the election or removal of directors or other actual or\nthreatened solicitation of proxies or consents by or on behalf of a Person other\nthan the Board.\n\n\n\n\n\n\n\n\n \n\n (iii) Consummation of a reorganization, merger, \nconsolidation or sale or other disposition of all or substantially all of the \nassets of the Company (a \"Business Combination\"), in each case, unless, \nfollowing such Business Combination, (A) all or substantially\nall of the individuals and entities that were the beneficial owners of the\nOutstanding Company Common Stock and the Outstanding Company Voting Securities\nimmediately prior to such Business Combination beneficially own, directly or\nindirectly, more than 60% of the then-outstanding shares of common stock and the\ncombined voting power of the then-outstanding voting securities entitled to vote\ngenerally in the election of directors, as the case may be, of the corporation\nresulting from such Business Combination (including, without limitation, a\ncorporation that, as a result of such transaction, owns the Company or all or\nsubstantially all of the Company's assets either directly or through one or more\nsubsidiaries) in substantially the same proportions as their ownership\nimmediately prior to such Business Combination of the Outstanding Company Common\nStock and the Outstanding Company Voting Securities, as the case may be, (B) no\nPerson (excluding any corporation resulting from such Business Combination or\nany employee benefit plan (or related trust) of the Company or such corporation\nresulting from such Business Combination) beneficially owns, directly or\nindirectly, 20% or more of, respectively, the then-outstanding shares of common\nstock of the corporation resulting from such Business Combination or the\ncombined voting power of the then-outstanding voting securities of such\ncorporation, except to the extent that such ownership existed prior to the\nBusiness Combination, and (C) at least a majority of the members of the board of\ndirectors of the corporation resulting from such Business Combination were\nmembers of the Incumbent Board at the time of the execution of the initial\nagreement or of the action of the Board providing for such Business Combination;\nor\n\n (iv) Approval by the stockholders of the Company of a\n complete liquidation or dissolution of the Company.\n\n (g) \"Change of Control Effective Date\" shall mean the first date\non which a Change of Control occurs. Notwithstanding anything in this Agreement\nto the contrary, if a Change of Control occurs and if the Executive's employment\nwith the Company is terminated prior to a Change of Control, and if it is\nreasonably demonstrated by the Executive that such termination of employment (1)\nwas at the request of a third party that has taken steps reasonably calculated\nto effect a Change of Control or (2) otherwise arose in connection with or\nanticipation of a Change of Control, then \"Change of Control Effective Date\"\nmeans the date immediately prior to the date of such termination of employment.\n\n (h) \"Commencement Date\" shall be January 19, 2001.\n\n (i) \"Disability\" shall mean the Executive's inability, due to\nphysical or mental incapacity, to substantially perform his duties and\nresponsibilities under this Agreement for a period of six consecutive months as\ndetermined by a medical doctor selected by the Company and the Executive. If the\nParties cannot agree on a medical doctor, each Party shall select a medical\ndoctor and the two doctors shall select a third who shall be the approved\nmedical doctor for this purpose.\n\n\n\n\n\n\n (j) \"Fair Market Value\", when used with respect to the value of a\nsecurity on a particular date, shall mean (A) the average of the high and low\ntrading prices of the security on the principal national securities exchange or\nnational market system on which the security is then listed or traded, in each\ncase during normal business hours on such date or, if such date is not a trading\nday, on the most recent trading day that precedes such date or (B) if the\nsecurity is not listed or traded on a national market system or national\nsecurities exchange as of such date, then the value as agreed by the Parties, or\nin the absence of such agreement, fair market value as determined by an\nindependent appraiser on a going forward basis, determined without discount for\ntransfer restrictions, lack of liquidity, minority status, or similar factors.\nFor purposes of this Section 1(j), an \"independent appraiser\" is a nationally\nrecognized, independent investment banking or accounting firm that has relevant\nappraisal experience and that is agreed upon by both Parties.\n\n (k) \"Good Reason\" shall mean the occurrence of any of the \nfollowing events without the prior written consent of the Executive:\n\n (i) a reduction in the Executive's then current Base\nSalary or target bonus opportunity as a percentage of Base Salary;\n\n (ii) the taking of any other action by the Company \nthat would diminish the incentive opportunities of the Executive as required \nhereunder;\n\n (iii) the taking of any action by the Company that \nwould significantly diminish the aggregate value of the\nbenefits (other than an across-the-board reduction applicable to employees\ngenerally) provided to the Executive under the Company's medical, health,\naccident, disability, life insurance, thrift and retirement plans;\n\n (iv) the failure to elect or reelect the Executive to\nany of the positions described in Section 3 below or removal of him from any \nsuch position;\n\n (v) a material diminution in the Executive's duties \nor the assignment to the Executive of duties which are materially inconsistent \nwith his duties or which materially impair the Executive's ability to function \nas the Chairman and Chief Executive Officer of the Company;\n\n (vi) a change in the reporting structure so that the \nExecutive reports to someone other than the Board;\n\n (vii) relocation of the Executive's principal place of\nemployment to a location other than Boston, Massachusetts, or, after the Change\nof Control Effective Date, requiring the Executive to travel on Company business\nto a substantially greater extent than required immediately prior to such Change\nof Control Effective Date;\n\n (viii) a material breach by the Company of any provision\nof this Agreement or the stock option agreement the form of which is attached \nhereto as Exhibit A;\n\n\n\n\n\n\n (ix) any purported termination of the Executive's \nemployment by the Company that is not effected in accordance with Section 14(b),\nSection 14(c) or Section 14(d) (relating, respectively, to Disability, Cause or\n\"without Cause\" terminations); or\n\n (x) the failure of the Company to obtain the \nassumption in writing of its obligation to perform this\nAgreement by any successor to all or substantially all of the assets of the\nCompany within 15 days after a merger, consolidation, sale or similar\ntransaction.\n\nAfter the Change of Control Effective Date, any good faith determination of Good\nReason by the Executive shall be conclusive.\n\n (l) \"Highest Annual Bonus\" shall mean an amount equal to the\nproduct of (i) the Executive's Base Salary at the date of termination and (ii)\nthe Highest Annual Bonus Percentage.\n\n (m) \"Highest Annual Bonus Percentage\" shall mean the higher of (i)\nthe Executive's Recent Annual Bonus Percentage and (ii) one-hundred percent\n(100%).\n\n (n) \"Pro Rata\" shall mean a fraction, the numerator of which is\nthe number of days that the Executive was employed in the applicable performance\nperiod and the denominator of which shall be the number of days in the\napplicable performance period.\n\n (o) \"Recent Annual Bonus Percentage\" shall mean the highest actual\nannual bonus percentage awarded to the Executive under the Company's annual\nincentive plans, or any comparable bonus under any predecessor or successor\nplan, for the last three full fiscal years (or such lesser number of years that\nthe Executive has been employed) prior to the Change of Control Effective Date.\n\n (p) \"Term of Employment\" shall mean the period specified in \nSection 2 below (including any extension as provided therein).\n\n 2. Term of Employment.\n ------------------\n\n The Term of Employment shall begin as of the Commencement Date,\nand shall extend until January 19, 2004, with automatic one-year extensions on\neach anniversary of the Commencement Date, commencing with the first\nanniversary, unless either Party notifies the other at least 90 days before such\nanniversary that the Term of Employment is not to so extend. Notwithstanding the\nforegoing, the Term of Employment shall end on the date on which the Executive's\nemployment is earlier terminated by either Party in accordance with the\nprovisions of Section 14.\n\n\n\n\n\n\n 3. Position, Duties and Responsibilities.\n -------------------------------------\n\n (a) The Executive shall serve as the Chairman of the Board and\nChief Executive Officer of the Company and shall, subject to the following\nsentence, be responsible for the general management of the affairs of the\nCompany. The Executive shall assume his responsibilities as Chief Executive\nOfficer effective February 12, 2001. The Executive shall be a member of the\nBoard during the Term of Employment and the Board shall designate the Executive\nas its Chairman. The Executive, in carrying out his duties under this Agreement,\nshall report to the Board. During the Term of Employment, the Executive shall\ndevote substantially all of his business time and attention to the business and\naffairs of the Company.\n\n (b) Nothing herein shall preclude the Executive from (i) serving\non the boards of directors of a reasonable number of other corporations with the\nconcurrence of the Board (which approval shall not be unreasonably withheld),\n(ii) serving on the boards of a reasonable number of trade associations and\/or\ncharitable organizations, (iii) engaging in charitable activities and community\naffairs, and (iv) managing his personal investments and affairs, provided that\nsuch activities set forth in this Section 3(b) do not conflict or materially\ninterfere with the effective discharge of his duties and responsibilities under\nSection 3(a).\n\n 4. Base Salary.\n -----------\n\n During the Term of Employment, the Executive shall be paid a Base\nSalary, payable in accordance with the regular payroll practices of the Company,\nof $1 million per year. The Base Salary shall be reviewed annually for any\nincrease in the discretion of the Personnel Committee of the Board.\n\n 5. Annual Incentive Award.\n ----------------------\n\n\n\n\n\n\n During the Term of Employment, the Executive shall have a target\nbonus opportunity each year equal to 100% of Base Salary, payable in that amount\nif the performance goals established for the relevant year are met. If such\nperformance goals are exceeded, the Executive shall receive a larger amount of\nup to 200% of Base Salary. For the year 2001, Executive's minimum award shall be\nequal to target, determined on a Pro Rata basis. The performance goals for each\nyear shall be established by the Personnel Committee in consultation with the\nExecutive. The Executive shall be paid his annual incentive awards no later than\nthe date other senior executives of the Company are paid their annual incentive\nawards and in no event later than 90 days following the last day of the fiscal\nyear in respect of which the annual incentive award is being paid. The Company\nmay, but shall not be required to, implement the foregoing pursuant to a\nshareholder-approved bonus plan or arrangement that satisfies the requirements\nfor exemption from the limitation on deductibility imposed by Section 162(m) of\nthe Internal Revenue Code of 1986, as amended (the \"Code\") that is set forth in\nSection 162(m)(4)(C) of the Code.\n\nNotwithstanding the foregoing, for each fiscal year of the Company which ends in\nthe two-year period following the Change in Control Effective Date, the\nExecutive's award shall be not less than the amount determined by multiplying\nhis Base Salary for such year by the Recent Annual Bonus Percentage.\n\n 6. Sign-on Arrangements.\n --------------------\n\n (a) Cash Sign-on Bonus. As soon as practicable following the\nCommencement Date, the Company shall pay the Executive a cash bonus of $250,000.\n\n (b) Stock Option Grant. As of the Commencement Date the \nCompany shall grant the Executive a ten-year option to purchase 2 million shares\nof The Gillette Company common stock, in the form attached hereto as Exhibit A.\n\n 7. Additional Long-Term Incentive Awards.\n -------------------------------------\n\n (a) Stock Options. The Executive shall receive a minimum stock\noption grant of 650,000 shares, subject to adjustment as provided in the next\nparagraph, in each of 2001, 2002 and 2003. The grants shall be made no later\nthan the date on which the first grant of options is made to the Company's\nsenior executives generally for such year, but in no event later than December\n31. The grants shall be made pursuant to The Gillette Company 1971 Stock Option\nPlan (the \"Plan\") or successor plan (if any) and contain the terms and\nconditions set forth in Exhibit B attached hereto. In the event there is no plan\nin place under which the options can be granted, the Executive's grants shall be\nmade substantially in the form attached hereto as Exhibit A, except that the\nvesting schedule shall be as set forth in Exhibit B.\n\n If, before the grant of any of the options provided for in this\nSection 7(a) there occurs an event described in Section 9 of the Plan (or in the\ncomparable section of a successor plan), the number and kind of shares to be\ngranted pursuant to such options shall be adjusted to the extent determined to\nbe appropriate by the Board, in a manner consistent with the adjustments made to\noutstanding stock options held by Executive (if any) and by other senior-level\nexecutives of the Company, in order to preserve the value of the options.\n\n (b) Ongoing Term Incentive Awards. The Executive shall be eligible\nto participate in any long-term incentive program that may hereafter be made\navailable to other senior-level executives generally; provided, that the\nExecutive's participation therein shall take into account the options to be\ngranted to him pursuant to Section 7(a) hereof.\n\n\n\n\n\n 8. Stock Purchase.\n --------------\n\n Executive agrees to buy $1 million in The Gillette Company common\nstock with his own funds from the Company on the Commencement Date at a price\nper share equal to the Fair Market Value on the Commencement Date, with payment\nto be made by the Executive no later than the close of business of the Company\non January 26, 2001 and to hold such stock for a period of no less than the\nlesser of three years or until the date of termination of his employment.\n\n 9. Employee Benefit Programs.\n -------------------------\n\n During the Term of Employment, the Executive shall be entitled to\nparticipate in all employee pension and welfare benefit plans, programs and\narrangements made available to the Company's senior-level executives or to its\nemployees generally on the same terms and conditions as other senior-level\nexecutives, as such plans, programs or arrangements may be in effect from time\nto time, including, without limitation, pension, profit sharing, savings, estate\npreservation and other retirement plans or programs, 401(k), medical, dental,\nhospitalization, short-term and long-term disability and life insurance plans,\naccidental death and dismemberment protection, travel accident insurance, and\nall other pension or retirement plans or programs and employee welfare benefit\nplans or programs that may be sponsored by the Company from time to time,\nincluding any plans or programs that supplement the above-listed types of plans\nor programs, whether funded or unfunded. Company-provided life insurance will be\nno less than 300% of Base Salary. The Executive's participation shall be based\non, and the calculation of all benefits shall be based on, the assumptions that\nthe Executive has met all service-period and other requirements for such\nparticipation. The Executive shall be entitled to six weeks paid vacation per\ncalendar year of employment. The Executive agrees to cooperate with any required\neligibility procedures with respect to such plans, programs and arrangements,\nincluding without limitation customary medical underwriting procedures.\n\n \n\n 10. Supplemental Pension.\n --------------------\n\n (a) Following any termination of his employment with the Company\nother than by the Company for Cause or as a result of his death, the Executive\nshall be entitled to receive a supplemental pension benefit with annual payments\nequal to five percent (5%) of his Average Final Annual Compensation (as defined\nbelow) multiplied by his full and partial years of service with the Company\n(including any additional years of credited service pursuant to Sections 14(d)\nand 15(c)); provided however, that the maximum annual pension to which the\nExecutive shall be entitled shall be 50% of his Average Final Annual\nCompensation. For this purpose, \"Average Final Annual Compensation\" shall be\ndefined as the Executive's average cash compensation for the 36 consecutive\nmonths of highest cash compensation or such shorter period as the Executive has\nbeen employed by the Company, if the Executive has been employed for less than\n36 months with the Company. Cash compensation shall include all salary and\nbonuses earned in respect of such 36-month period, regardless of when paid. The\nsupplemental pension shall be fully vested and shall be paid monthly with the\nfirst payment to be made at the beginning of the first month following the\ntermination of the Executive's employment hereunder. The Executive's entitlement\nto the supplemental pension benefit (apart from the determination of the amount\nof the benefit as set forth in the first sentence) shall apply without regard to\nthe period of the Executive's employment with the Company.\n\n (b) If the Executive should die with a spouse surviving him after\nhe has commenced receiving a benefit under this Section 10 (or would have\ncommenced receiving a benefit but for the offset provided under Section 10(c)),\nthe spouse's benefit, payable monthly, shall be determined in accordance with an\nelection to be made by the Executive prior to the commencement of the\nsupplemental pension benefit. The post-retirement benefit provided the spouse\nshall result in the normal actuarial discount applied to a joint and survivor\nbenefit pursuant to the Company's tax-qualified pension plan.\n\n (c) Notwithstanding the foregoing, the supplemental pension\nbenefit (including a spouse's benefit) determined in accordance with this\nSection 10 shall be offset (but not below zero) by any pension benefit\n(including a survivor's benefit) or long-term disability benefit received by the\nExecutive (or pension or survivor benefit received by the spouse) under any of\nthe Company's defined benefit pension or long-term disability benefit plans but\nshall not be offset by any other pension or retirement benefit paid by any prior\nemployer of the Executive.\n\n 11. Perquisites.\n -----------\n\n The Executive shall be entitled to perquisites on the same basis\nas provided to other senior level executives and, in any event, shall be\nentitled to have the Company provide the following:\n\n (a) a car and driver for business purposes, including \ncommutation, as provided in Section 13, and as needed or required for security \npurposes;\n\n (b) reimbursement of tax and financial counseling fees up to \n$15,000 per year;\n\n (c) a residential security system;\n\n (d) membership and annual fees for two luncheon clubs; and\n\n\n\n\n\n\n (e) an annual physical by the doctor of his choice, including\ngross-up for any tax liabilities the Executive incurs in respect to the\nprovision of such annual physical.\n\n 12. Aircraft Travel.\n ---------------\n\n For security purposes, the Executive shall be required to use, at\nCompany expense, private aircraft for travel in North America including, without\nlimitation, his weekly commutation as provided in Section 13. Outside North\nAmerica he shall be entitled to first class air travel.\n\n 13. Reimbursement of Business and Other Expenses; Commutation;\n ----------------------------------------------------------\n Relocation.\n ----------\n\n The Executive is authorized to incur reasonable expenses in\nconnection with carrying out his duties and responsibilities under this\nAgreement and the Company shall promptly reimburse him for all such expenses\nincurred in connection with carrying out the business of the Company, subject to\ndocumentation in accordance with the Company's policy. The Company shall pay\nlegal fees and expenses up to $100,000 incurred by the Executive in connection\nwith the negotiation and implementation of the Executive's employment\narrangements with the Company, including, without limitation, gross-up for any\ntax liabilities the Executive incurs with respect to such payments.\n\n The Executive shall be under no obligation to relocate his\npersonal residence to the Boston area. The Company shall provide and maintain\nfor the Executive a 2-room apartment with full hotel services in the Boston area\nmutually acceptable to the Company and the Executive and pay any costs\nassociated with the Executive's weekly commuting from Boston to the Executive's\nresidence in Rye, New York including, without limitation, gross-up for any tax\nliabilities Executive incurs with respect to commutation costs.\n\n In the event the Executive relocates from the New York area to the\nBoston area, the Company will pay all costs associated with his relocation,\nincluding, without limitation, gross-up for any tax liabilities Executive incurs\nwith respect to such relocation payments or reimbursements.\n\n 14. Termination of Employment.\n -------------------------\n\n (a) Termination Due to Death. In the event that the \nExecutive's employment hereunder is terminated due to his death, his estate or \nhis beneficiaries, as the case may be, shall be entitled to the following:\n\n (i) Base Salary through the date of his death;\n\n\n\n\n\n\n (ii) a Pro-Rata annual incentive award for the year in\nwhich the Executive's death occurs based on the target bonus for the year of \ntermination, payable promptly following his death; and\n\n (iii) full vesting and exercisability of all \noutstanding stock options which shall remain exercisable for a period equal to \nthe lesser of one year and the remainder of their originally scheduled terms.\n\n (b) Termination Due to Disability. In the event that the \nExecutive's employment hereunder is terminated by either Party hereto due to the\nExecutive's Disability, he shall be entitled to the following:\n\n (i) Disability benefits provided in accordance with \nthe long-term disability program in effect for senior executives at the Company;\nprovided, however, in no event shall such benefits provide the Executive less \nthan 50% of his then Base Salary to age 65;\n\n (ii) Base Salary through the end of the month before \nthe month in which Disability benefits commence;\n\n (iii) a Pro-Rata annual incentive award for the year in\n which the termination occurs based on the target bonus for the year of \ntermination, payable promptly following the termination of his employment;\n\n (iv) full vesting and exercisability of all \noutstanding options which shall remain exercisable for a period\nequal to the lesser of one year and the remainder of their originally scheduled\nterms; and\n\n (v) continued participation in all medical, dental, \nvision and hospitalization insurance coverage and benefits and in all other \nemployee welfare benefit plans or programs in which he was participating on the\n date of the termination of his employment for a period of 24 months following \nsuch date, on the same terms and conditions as if he had remained employed by \nthe Company; provided that to the extent that the Company's\nplans do not permit continuation of the Executive's participation throughout\nsuch period, the Company shall provide the Executive, no less frequently than\nquarterly in advance, with an amount which, after taxes, is sufficient for him\nto purchase equivalent benefits.\n\n In no event shall a termination of the Executive's employment\nhereunder for Disability occur until the Party terminating his employment gives\nwritten notice to the other Party in accordance with Section 28 below.\n\n\n\n\n\n\n (c) Termination by the Company for Cause.\n ------------------------------------\n\n (i) A termination for Cause shall not take effect \nunless the provisions of this subclause (i) are complied\nwith. The Executive shall be given written notice by the Board of the intention\nto terminate him for Cause, such notice (A) to state in detail the particular\nact or acts or failure or failures to act that constitute the grounds on which\nthe proposed termination for Cause is based and (B) to be given within 60 days\nof the Board's learning of such act or acts or failure or failures to act. In\nthe event the proposed termination is based on subclause (ii) of Section 1(d)\nabove, the Executive shall have ten calendar days after the date that such\nwritten notice has been given to the Executive in which to cure such conduct. If\nhe fails to cure such conduct, the Executive shall then be entitled to a hearing\nbefore the Board, and, thereafter, upon a determination by affirmative vote of\nno fewer than three-quarters of the members of the Board that Cause exists, he\nshall be terminated for Cause.\n\n (ii) In the event the Company terminates the \nExecutive's employment hereunder for Cause:\n\n (A) he shall be entitled to Base Salary \nthrough the date of the termination; and\n\n (B) all stock options shall be forfeited.\n\n (d) Termination without Cause or Termination for Good Reason.\n --------------------------------------------------------\n\n In the event (x) the Executive's employment hereunder is\nterminated by the Company without Cause, other than due to Disability or death,\nor (y) the Executive terminates his employment for Good Reason hereunder at his\ninitiative within 60 days following the occurrence of a Good Reason which has\nnot been cured by the Company within 20 calendar days of receipt of notice\nthereof from the Executive, the Executive shall be entitled to the following\nbenefits:\n\n (i) Base Salary through the date of termination;\n\n (ii) a Pro-Rata annual incentive award for the year of\ntermination, based on the target bonus for such year, payable promptly following\n such termination;\n\n (iii) a lump sum payment in an amount equal to two \ntimes the Executive's Base Salary, determined as provided in the last sentence \nof this Section 14(d), payable promptly following such termination;\n\n\n\n\n\n\n (iv) a lump sum payment in an amount equal to two \ntimes the Executive's target annual incentive award for\nthe year of termination, payable promptly following such termination;\n\n (v) all outstanding stock options shall become fully \nvested and exercisable and shall remain exercisable for a period equal to the \nlesser of five years and the remainder of their originally scheduled terms;\n\n (vi) two additional years of service for the purpose \nof determining the supplemental pension benefit pursuant to Section 10; \nprovided, however, that the total number of years of service taken into account\n in determining such benefit shall in no event exceed\nten (10); and\n\n (vii) continued participation in all medical, dental, \nvision and hospitalization insurance coverage and benefits and in all other \nemployee and senior-level executive welfare benefit plans, programs and \narrangements in which he was participating on the date of\nthe termination of his employment, on the same terms and conditions as if he had\nremained employed by the Company, for a period equal to 24 months following the\ntermination of his employment; provided, however, that if the Executive becomes\nre-employed with another employer and is eligible to receive medical or other\nwelfare benefits under another employer-provided plan, the medical and other\nwelfare benefits described above shall be secondary to those provided under such\nother plan during such applicable period of eligibility, provided that, to the\nextent that the Company's plans, programs and arrangements do not permit such\ncontinuation of the Executive's participation following his termination, the\nCompany shall provide the Executive, no less frequently than quarterly in\nadvance with an amount which, after taxes, is sufficient for him to purchase\nequivalent benefits.\n\nFor purposes of Section 14(d)(iv) above, Base Salary shall be determined by the\nBase Salary at the annualized rate in effect on the date of termination of the\nExecutive's employment, provided however, if, prior to the termination of the\nExecutive's employment pursuant to this Section 14(d), the Base Salary has been\nreduced without the Executive's consent, the Base Salary in effect on the date\nof termination of the Executive's employment shall be deemed to be the Base\nSalary as in effect prior to such reduction.\n\n (e) Voluntary Termination. In the event that Executive terminates\nhis employment hereunder on his own initiative, other than a termination in\naccordance with Section 14(a), 14(b) or 14(d) (relating respectively to death,\nDisability and \"without Cause\" terminations) (except to the extent otherwise\nprovided in Section 14(f)), he shall be entitled to:\n\n (i) Base Salary through the date of termination; and\n\n\n\n\n\n\n (ii) the lesser of 90 days and the remainder of the \nregularly scheduled option term to exercise vested\nstock options and all unvested options shall be forfeited.\n\nA voluntary termination by the Executive is not a breach of this Agreement.\n\n (f) Retirement. The Executive shall be entitled to retire, for\npurposes of the stock options granted pursuant to Section 6(b) and 7(a) hereof,\nby voluntarily terminating his employment on or after the third anniversary of\nthe Commencement Date. Upon such termination for retirement, any stock options\nwhich are not then vested shall become exercisable and all stock options shall\nremain exercisable for a period equal to the lesser of the remainder of the\noriginally scheduled term and five years.\n\n (g) Other Termination Benefits. In the case of any \ntermination of his employment with the Company, the Executive or his estate, \nwhere applicable, shall also be entitled to prompt payment or provision of:\n\n (i) the supplemental pension benefit described in \nSection 10 (other than following a termination for Cause or death);\n\n (ii) unless Executive has been terminated for Cause, \nthe balance of any incentive awards due for performance periods which have been\n completed, but which have not yet been paid (subject to deferral of payments to\n the extent the Executive has elected, irrevocably, such deferral);\n\n (iii) any expense reimbursements due the Executive; and\n\n (iv) other benefits, including senior level executive \nbenefits, if any, in accordance with applicable plans, programs and arrangements\nof the Company.\n\n (h) No Mitigation; No Offset. In the event of any termination of\nhis employment hereunder, the Executive shall be under no obligation to seek\nother employment and except in the event of a termination by the Company for\nCause there shall be no offset against amounts or benefits due the Executive\nunder this Agreement on account of any claims asserted by the Company or any\nremuneration or benefits attributable to any subsequent employment that he may\nobtain, except to the extent set forth in Section 14(d)(vii).\n\n (i) Nature of Payments. Any amounts due under this Section \n14 are in the nature of severance payments considered to be reasonable by the \nCompany and are not in the nature of a penalty.\n\n\n\n\n\n\n (j) Resignation. Notwithstanding any other provision of this\nAgreement, upon the termination of the Executive's employment for any reason,\nunless otherwise requested by the Board he shall immediately resign from the\nBoard and from all boards of directors of subsidiaries and Affiliates of the\nCompany of which he may be a member. The Executive hereby agrees to execute any\nand all documentation of such resignations upon request by the Company, but he\nshall be treated for all purposes as having so resigned upon termination of his\nemployment, regardless of when or whether he executes any such documentation.\n\n (k) Cooperation in Litigation. For a period of two years following\nthe termination of his employment, upon the reasonable request by the Company,\nthe Executive shall cooperate in any litigation or other dispute relating to any\nmatter in which he was involved during his employment with the Company;\nprovided, that the Executive shall not be obligated to spend time and\/or travel\nin connection with such cooperation to the extent it would interfere with his\nother commitments and obligations. The Company shall reimburse the Executive for\nall expenses he reasonably incurs in so cooperating, and shall pay the Executive\na mutually agreed fee for his time spent in such cooperation (including without\nlimitation any travel time); provided, that if the Executive and the Company\ncannot agree on such fee, they shall mutually select an independent expert to\ndetermine the appropriate amount of such fee based upon prevailing market\npractices. The determination of any such independent expert shall be final and\nbinding, and the fees and expenses of such expert in making such determination\nshall be paid by the Company.\n\n 15 Change of Control.\n -----------------\n\n (a) Notwithstanding any other provision of this Agreement, the\nprovisions of this Section 15 shall apply if there occurs a Change of Control\nduring the Term of Employment and the Executive's employment is terminated (i)\nduring the period from the Change of Control Effective Date through the second\nanniversary thereof by the Company, other than for Cause or as a result of the\nExecutive's Disability or death, or by the Executive for Good Reason, (ii) by\nthe Executive for any reason during the 30-day period immediately following the\nfirst anniversary of a Change of Control, or (iii) by the Company prior to a\nChange of Control, if, in accordance with the definition of Change of Control\nEffective Date, it is reasonably demonstrated by the Executive that such\ntermination of employment (A) was at the request of a third party that has taken\nsteps reasonably calculated to effect a Change of Control or (B) otherwise arose\nin connection with or anticipation of a Change of Control.\n\n\n\n\n\n\n (b) In the event of a termination of the Executive's employment\ndescribed in Section 15(a), then the Executive shall be entitled to the benefits\nset forth in Section 14(d), as modified by this Section 15. In lieu of the lump\nsum payments provided for in clauses (i), (ii), (iii) and (iv) of Section 14(d),\nthe Company shall pay to the Executive, in a lump sum in cash within 30 days\nafter the date of termination, an amount equal to the aggregate of the following\namounts:\n\n (i) the sum of (A) the Executive's Base Salary \nthrough the date of termination to the extent not\ntheretofore paid, (B) the product of (x) the Highest Annual Bonus and (y) a\nfraction, the numerator of which is the number of days in the current fiscal\nyear through the date of termination and the denominator of which is 365,\nreduced (but not below zero), if the date of termination occurs in the same\nfiscal year as the Change of Control, by the Executive's Bonus Payment Amount,\n(C) if elected by the Executive, any compensation previously deferred by the\nExecutive under the Company's Supplemental Savings Plan, Incentive Bonus Plan\nand\/or Stock Equivalent Unit Plan or any other plan, agreement or arrangement of\nthe Company (together with any accrued interest or earnings thereon), and (D)\nany accrued vacation pay, in each case to the extent not theretofore paid;\n\n (ii) the amount equal to the product of (A) three and\n (B) the sum of (x) the Executive's Base Salary and (y) the Executive's Highest\n Annual Bonus; and\n\n (iii) if elected by the Executive within 60 days \nfollowing execution of this Agreement and prior to the\nChange of Control Effective Date, in lieu of and in substitution for the monthly\nbenefit represented thereby, an amount equal to the lump sum actuarial\nequivalent (utilizing the interest rate and mortality table in effect for lump\nsum distributions under the Company's tax-qualified pension plan immediately\nprior to the Change of Control Effective Date, and determined assuming benefit\ncommencement as of the date of termination) of that portion (if any) of the\nExecutive's monthly supplemental pension benefit otherwise payable under Section\n10, that accrues as a result of the application of the first sentence of Section\n15(c).\n\n (c) In addition, in the event of a termination of the Executive's\nemployment described in Section 15(a), in lieu of the benefit provided in clause\n(vi) of Section 14(d), the Executive shall be entitled to three (3) additional\nyears of service for the purpose of determining the supplemental pension benefit\npursuant to Section 10; provided, however, that the total number of years of\nservice taken into account in determining such benefit shall in no event exceed\nten (10).\n\n (d) Finally, in the event of a termination of the Executive's\nemployment described in Section 15(a), the following additional benefits shall\nbe provided to the Executive:\n\n\n\n\n\n\n (i) for purposes of determining the Executive's eligibility\nfor retiree benefits pursuant to the Company's welfare plans, practices,\nprograms and policies, the Executive shall be considered to have remained\nemployed until three years after the date of termination, provided, however,\nthat the Executive's commencement of such retiree benefits shall not be any\nsooner than the Executive's earliest retirement date under the Company's\nRetirement Plan and Supplemental Retirement Plan;\n\n (ii) the Company shall, at its sole expense as incurred,\nprovide the Executive with outplacement services the scope and provider of which\nshall be selected by the Executive in the Executive's sole discretion; and\n\n (iii) clause (vii) of Section 14(d) shall be amended by \nchanging the phrase \"24 months\" to \"36 months\".\n\n 16 Excise Tax.\n ----------\n\n (a) Anything in this Agreement to the contrary\nnotwithstanding, in the event it shall be determined that any payment, benefit\nor distribution from the Company or its Affiliates to or for the benefit of the\nExecutive (whether paid or payable, received or receivable, or distributed or\ndistributable pursuant to the terms of this Agreement, any plan or program of\nthe Company or its Affiliates or otherwise but determined without regard to any\nadditional payments required under this Section 16) (the \"Payment\") would be\nsubject to the excise tax imposed by Section 4999 of the Code, or any interest\nor penalties are incurred by the Executive with respect to such excise tax (such\nexcise tax, together with any such interest and penalties, collectively, the\n\"Excise Tax\"), then the Executive shall be entitled to receive an additional\npayment (the \"Gross-Up Payment\") in an amount such that after payment by the\nExecutive of all taxes (including any interest or penalties imposed with respect\nto such taxes), including, without limitation, any income taxes (and any\ninterest and penalties imposed with respect thereto) and Excise Tax imposed upon\nthe Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment\nequal to the Excise Tax imposed upon the Payment.\n\n\n\n\n\n\n\n\n \n\n (b) Subject to the provisions of Section 16(c), all determinations\nrequired to be made under this Section 16, including whether and when a Gross-Up\nPayment is required and the amount of such Gross-Up Payment and the assumptions\nto be utilized in arriving at such determination, shall be made by KPMG Peat\nMarwick or such other certified public accounting firm as may be designated by\nthe Executive (the \"Accounting Firm\") that shall provide detailed supporting\ncalculations both to the Company and the Executive within 15 business days of\nthe receipt of notice from the Executive that there has been a Payment or such\nearlier time as is requested by the Company. In the event that the Accounting\nFirm is serving as accountant or auditor for the individual, entity or group\neffecting the Change of Control, the Executive shall appoint another nationally\nrecognized accounting firm to make the determinations required hereunder (which\naccounting firm shall then be referred to as the Accounting Firm hereunder). All\nfees and expenses of the Accounting Firm shall be borne solely by the Company.\nAny Gross-Up Payment, as determined pursuant to this Section 16, shall be paid\nby the Company to the Executive within five days of the receipt of the\nAccounting Firm's determination. Any determination by the Accounting Firm shall\nbe binding upon the Company and the Executive. As a result of the uncertainty in\nthe application of Section 4999 of the Code at the time of the initial\ndetermination by the Accounting Firm hereunder, it is possible that Gross-Up\nPayments that will not have been made by the Company should have been made (the\n\"Underpayment\"), consistent with the calculations required to be made hereunder.\nIn the event the Company exhausts its remedies pursuant to Section 16(c) and the\nExecutive thereafter is required to make a payment of any Excise Tax, the\nAccounting Firm shall determine the amount of the Underpayment that has occurred\nand any such Underpayment shall be promptly paid by the Company to or for the\nbenefit of the Executive.\n\n (c) The Executive shall notify the Company in writing of any claim\nby the Internal Revenue Service that, if successful, would require the payment\nby the Company of the Gross-Up Payment. Such notification shall be given as soon\nas practicable but no later than 10 business days after the Executive is\ninformed in writing of such claim and shall apprise the Company of the nature of\nsuch claim and the date on which such claim is requested to be paid. The\nExecutive shall not pay such claim prior to the expiration of the 30-day period\nfollowing the date on which the Executive gives such notice to the Company (or\nsuch shorter period ending on the date that any payment of taxes with respect to\nsuch claim is due). If the Company notifies the Executive in writing prior to\nthe expiration of such period that the Company desires to contest such claim,\nthe Executive shall:\n\n (i) give the Company any information \nreasonably requested by the Company relating to such claim,\n\n (ii) take such action in connection with \ncontesting such claim as the Company shall reasonably\nrequest in writing from time to time, including, without limitation, accepting\nlegal representation with respect to such claim by an attorney reasonably\nselected by the Company,\n\n (iii) cooperate with the Company in good faith \nin order effectively to contest such claim, and\n\n (iv) permit the Company to participate in any \nproceedings relating to such claim;\n\n\n\n\n\n\nprovided, however, that the Company shall bear and pay directly all costs and\nexpenses (including additional interest and penalties) incurred in connection\nwith such contest, and shall indemnify and hold the Executive harmless, on an\nafter-tax basis, for any Excise Tax or income or other tax (including interest\nand penalties with respect thereto) imposed as a result of such representation\nand payment of costs and expenses. Without limitation on the foregoing\nprovisions of this Section 16(c), the Company shall control all proceedings\ntaken in connection with such contest, and, at its sole option, may pursue or\nforgo any and all administrative appeals, proceedings, hearings and conferences\nwith the applicable taxing authority in respect of such claim and may, at its\nsole option, either direct the Executive to pay the tax claimed and sue for a\nrefund or contest the claim in any permissible manner, and the Executive agrees\nto prosecute such contest to a determination before any administrative tribunal,\nin a court of initial jurisdiction and in one or more appellate courts, as the\nCompany shall determine; provided, however, that, if the Company directs the\nExecutive to pay such claim and sue for a refund, the Company shall advance the\namount of such payment to the Executive, on an interest-free basis, and shall\nindemnify and hold the Executive harmless, on an after-tax basis, from any\nExcise Tax or income or other tax (including interest or penalties with respect\nthereto) imposed with respect to such advance or with respect to any imputed\nincome with respect to such advance; and provided, further, that any extension\nof the statute of limitations relating to payment of taxes for the taxable year\nof the Executive with respect to which such contested amount is claimed to be\ndue is limited solely to such contested amount. Furthermore, the Company's\ncontrol of the contest shall be limited to issues with respect to which the\nGross-Up Payment would be payable hereunder, and the Executive shall be entitled\nto settle or contest, as the case may be, any other issue raised by the Internal\nRevenue Service or any other taxing authority.\n\n (d) If, after the receipt by the Executive of an amount\nadvanced by the Company pursuant to Section 16(c), the Executive becomes\nentitled to receive any refund with respect to such claim, the Executive shall\n(subject to the Company's complying with the requirements of Section 16(c))\npromptly pay to the Company the amount of such refund (together with any\ninterest paid or credited thereon after taxes applicable thereto). If, after the\nreceipt by the Executive of an amount advanced by the Company pursuant to\nSection 16(c), a determination is made that the Executive shall not be entitled\nto any refund with respect to such claim and the Company does not notify the\nExecutive in writing of its intent to contest such denial of refund prior to the\nexpiration of 30 days after such determination, then such advance shall be\nforgiven and shall not be required to be repaid and the amount of such advance\nshall offset, to the extent thereof, the amount of Gross-Up Payment required to\nbe paid.\n\n\n\n\n 17. Confidentiality; Non-Competition.\n --------------------------------\n\n (a) The Executive agrees that he will not at any time during\nthe Term of Employment or thereafter disclose or use any confidential\ninformation of a proprietary nature relating to the Company or any Affiliate,\nand their respective businesses, which information shall have been obtained by\nthe Executive during the Executive's employment by the Company or any Affiliate.\nFor this purpose, \"confidential information of a proprietary nature\" shall\ninclude pricing policies, technical processes, formulae, inventions, research\nprojects or other information regarding the financial and business affairs of\nthe Company or any Affiliate that at the time in question have not been\ndisclosed to the public or within the relevant trade or industry.\nNotwithstanding the foregoing provisions of this Section 17, the Executive may\ndisclose or use any such information (i) as such disclosure or use may be\nrequired or appropriate in the course of his employment with the Company, (ii)\nwhen required by a court of law, by any governmental agency having supervisory\nauthority over the business of the Company or by any administrative or\nlegislative body (including a committee thereof) with apparent jurisdiction, or\n(iii) with the prior written consent of the Company.\n\n (b) The Executive agrees that at the time of the termination\nof his employment with the Company, whether at the instance of the Executive or\nthe Company, and regardless of the reasons therefor, he will deliver to the\nCompany, and not keep or deliver to anyone else, any and all notes, files,\nmemoranda, papers and, in general, any and all physical matter and computer\nfiles containing information, including any and all documents significant to the\nconduct of the business of the Company or any subsidiary or Affiliate of the\nCompany which are in his possession, except for any documents for which the\nCompany or any subsidiary or Affiliate of the Company has given written consent\nto removal at the time of the termination of the Executive's employment and his\npersonal rolodex, personal files, phone book and similar items.\n\n (c) During the Term of Employment and for a period of two\nyears following the termination of his employment, the Executive shall not,\nother than in the course of performing his duties hereunder during the Term of\nEmployment or as agreed by the Company in writing, engage in a \"Competitive\nBusiness\", directly or indirectly, as an individual, partner, shareholder,\ndirector, officer, principal, agent, employee, trustee, consultant, or in any\nother relationship or capacity, in any geographic location in which the Company\nor any of its Affiliates is engaged in business.\n\n The Executive shall not be deemed to be in violation of this\nSection 17(c) from (i) his acquiring, solely as an investment, up to five\npercent (5%) of the outstanding equity securities (measured by value) of any\nentity, (ii) his becoming a consultant, advisor and\/or agent to any entity\nproviding consulting, investing or other services to any Competitor, so long as\nthe Executive does not render services or advice, directly or indirectly, to any\nCompetitor or Affiliate of the Competitor or (iii) his becoming affiliated with\nan entity which is not a Competitor which is subsequently acquired by or merged\nwith a Competitor; provided that following such acquisition or merger, his\nduties do not involve any responsibilities with regard to any Competitive\nBusiness.\n\n\n\n\n\n\n \"Competitive Business\" shall mean a business that competes\nwith a business that (i) was being conducted by the Company or any of its\nAffiliates at the time of the Executive's termination, and is being conducted at\nthe time of the alleged violation, or (ii) the Company or any of its Affiliates\nwas seeking to conduct, or seriously considering conducting, at the time of the\nExecutive's termination and the Company or any of its Affiliates is actually\nconducting, or which the Company is seeking to conduct or seriously considering\nconducting, at the time of the alleged violation. \"Competitor\" shall mean any\nentity which engages in any Competitive Business.\n\n (d) The Executive agrees that for a period of two years\nfollowing the termination of his employment, he will not, without the prior\nwritten consent of the Company, directly or indirectly, knowingly solicit or\nencourage any officer, employee or consultant of the Company or any of its\nsubsidiaries to leave the employ of the Company and its subsidiaries.\nNotwithstanding the foregoing, the Company agrees that the Executive's (i)\nresponding to an unsolicited request of an employee of the Company for advice on\nemployment matters or (ii) responding to an unsolicited request for an\nemployment reference regarding an employee of the Company shall not by itself be\ndeemed a violation of this Section 17(d).\n\n (e) The Executive agrees that the Company's remedies at law\nwould be inadequate in the event of a breach or threatened breach of this\nSection 17; accordingly, the Company shall be entitled, in addition to its\nrights at law, to seek injunctive and other equitable relief. If the Company\ndefers or withholds payment of any amount otherwise payable under this Agreement\non the basis of an asserted violation of the provisions of this Section 17, and\nit is subsequently finally determined that the Executive did not commit any such\nviolation, the Company shall promptly pay all such unpaid amounts to the\nExecutive, together with interest at the applicable federal rate as defined in\nSection 1274 of the Code, from the date such payments should have been made\nunder this Agreement until the date they are actually paid.\n\n 18. Resolution of Disputes.\n ----------------------\n\n Any dispute arising under, or relating to, this Agreement,\nany other agreement between Executive and the Company or its Affiliates, the\nExecutive's employment with the Company or any termination of such employment\nshall be resolved by binding arbitration, to be held in Boston, Massachusetts,\nin accordance with the Commercial Arbitration Rules of the American Arbitration\nAssociation. Judgment upon the award rendered by the arbitrator, including any\ninjunctive relief, may be entered in any court having jurisdiction thereof. The\nCompany shall advance to the Executive all reasonable fees, costs and expenses\nincurred by him in connection with such arbitration within 20 days after receipt\nby the Company of a written request for such advance, subject to repayment by\nthe Executive thereof, if the arbitrator(s) determines that the Executive had no\nreasonable good faith basis for asserting his position with respect to the\ndispute in question.\n\n\n\n 19. Indemnification.\n ---------------\n\n (a) The Company agrees that if the Executive is made a\nparty, or is threatened to be made a party, to any action, suit or proceeding,\nwhether civil, criminal, administrative or investigative (a \"Proceeding\"), by\nreason of the fact that he is or was a director, officer or employee of the\nCompany or is or was serving at the request of the Company as a director,\nofficer, member, employee or agent of another corporation, limited liability\ncorporation, partnership, joint venture, trust or other enterprise, including\nservice with respect to employee benefit plans, the Executive shall be\nindemnified and held harmless by the Company to the fullest extent legally\npermitted or authorized by the Company's certificate of incorporation or bylaws\nor resolutions of the Company's Board of Directors or, if greater, by the laws\nof the State of Delaware, against all cost, expense, liability and loss\n(including, without limitation, attorney's fees, judgments, fines, ERISA excise\ntaxes or other liabilities or penalties and amounts paid or to be paid in\nsettlement) reasonably incurred or suffered by the Executive in connection\ntherewith, and not otherwise received by him from another source, such as\ninsurance, and such indemnification shall continue as to the Executive even if\nhe has ceased to be a director, member, employee or agent of the Company or\nother entity and shall inure to the benefit of the Executive's heirs and legal\nrepresentatives. The Company shall advance to the Executive all costs and\nexpenses incurred by him in connection with a Proceeding within 20 calendar days\nafter receipt by the Company of a written request for such advance. Such request\nshall include an undertaking by the Executive to repay the amount of such\nadvance if it shall ultimately be determined that he is not entitled to be\nindemnified against such costs and expenses; provided that the amount of such\nobligation to repay shall be limited to the after-tax amount of any such advance\nexcept to the extent the Executive is able to offset such taxes incurred on the\nadvance by the tax benefit, if any, attributable to a deduction for the\nrepayment.\n\n (b) Neither the failure of the Company (including its board\nof directors, independent legal counsel or stockholders) to have made a\ndetermination prior to the commencement of any proceeding concerning payment of\namounts claimed by the Executive under Section 19(a) above that indemnification\nof the Executive is proper because he has met the applicable standard of\nconduct, nor a determination by the Company (including its board of directors,\nindependent legal counsel or stockholders) that the Executive has not met such\napplicable standard of conduct, shall create a presumption that the Executive\nhas not met the applicable standard of conduct.\n\n (c) The Company agrees to continue and maintain a directors'\nand officers' liability insurance policy covering the Executive with terms and\nconditions no less favorable than the most favorable coverage then applying to\nany other present or former director or officer of the Company, both during the\nTerm and for six years thereafter; provided, that during any periods when such\ninsurance policy remains in effect but the Executive is not serving as an\nofficer or director of the Company, such policy shall cover only acts, omissions\nand events occurring during his period of service as an officer or director of\nthe Company.\n\n\n\n\n\n\n 20. Assignability; Binding Nature.\n -----------------------------\n\n This Agreement shall be binding upon and inure to the\nbenefit of the Parties and their respective successors, heirs (in the case of\nthe Executive) and assigns. No rights or obligations of the Company under this\nAgreement may be assigned or transferred by the Company except that such rights\nor obligations may be assigned or transferred pursuant to a merger or\nconsolidation in which the Company is not the continuing entity, or the sale or\nliquidation of all or substantially all of the assets of the Company, provided\nthat the assignee or transferee is the successor to all or substantially all of\nthe business and assets of the Company and such assignee or transferee assumes\nthe liabilities, obligations and duties of the Company, as contained in this\nAgreement, either contractually or as a matter of law. The Company further\nagrees that, in the event of a sale of assets or liquidation as described in the\npreceding sentence, it shall take whatever action it reasonably can in order to\ncause such assignee or transferee to expressly assume the liabilities,\nobligations and duties of the Company hereunder. No rights or obligations of the\nExecutive under this Agreement may be assigned or transferred by the Executive\nother than his rights to compensation and benefits, which may be transferred\nonly by will or operation of law, except as provided in Section 26.\n\n 21. Entire Agreement.\n ----------------\n\n This Agreement contains the entire understanding and\nagreement between the Parties concerning the subject matter hereof and\nsupersedes all prior agreements, understandings, discussions, negotiations and\nundertakings, whether written or oral, between the Parties with respect thereto.\n\n 22. Representations.\n ---------------\n\n (a) The Company represents and warrants that (i) it is fully\nauthorized by action of its Board (and of any other person, entity or body whose\naction is required) to enter into this Agreement and to perform its obligations\nunder it; (ii) the execution, delivery and performance of this Agreement by it\nwill not violate any applicable law, regulation, order, judgment or decree or\nany agreement, plan or corporate governance document to which it is a party or\nby which it is bound; and (iii) upon the execution and delivery of this\nAgreement by the Parties, this Agreement shall be a valid and binding obligation\nof the Company, enforceable against it in accordance with its terms, except to\nthe extent that enforceability may be limited by applicable bankruptcy,\ninsolvency or similar laws affecting the enforcement of creditors' rights\ngenerally.\n\n\n\n\n\n\n (b) The Executive represents and warrants that (i) he has\nthe free and unfettered right to enter into this Agreement and to perform his\nobligations under it; (ii) to the best of his knowledge, the execution, delivery\nand performance of this Agreement by him will not violate any contract or\nagreement to which he is a party or by which he is bound; and (iii) upon the\nexecution and delivery of this Agreement by the Parties, this Agreement shall be\na valid and binding obligation of the Executive, enforceable against him in\naccordance with its terms.\n\n 23. Amendment or Waiver.\n -------------------\n\n No provision in this Agreement may be amended unless such\namendment is agreed to in writing and signed by the Executive and an authorized\nofficer of the Company. No waiver by either Party of any breach by the other\nParty of any condition or provision contained in this Agreement to be performed\nby such other Party shall be deemed a waiver of a similar or dissimilar\ncondition or provision at the same or any prior or subsequent time. Any waiver\nmust be in writing and signed by the Executive or an authorized officer of the\nCompany, as the case may be.\n\n 24. Severability.\n ------------\n\n In the event that any provision or portion of this Agreement\nshall be determined to be invalid or unenforceable for any reason, in whole or\nin part, the remaining provisions of this Agreement shall be unaffected thereby\nand shall remain in full force and effect to the fullest extent permitted by law\nso as to achieve the purposes of this Agreement.\n\n 25. Survivorship.\n ------------\n\n Except as otherwise expressly set forth in this Agreement,\nupon the expiration of the Term of Employment, the respective rights and\nobligations of the Parties shall survive such expiration to the extent necessary\nto carry out the intentions of the Parties as embodied in the rights (such as\nvested rights) and obligations of the Parties under this Agreement. This\nAgreement itself (as distinguished from the Executive's employment) may not be\nterminated by either Party without the written consent of the other Party.\n\n 26. Beneficiaries; References.\n -------------------------\n\n The Executive shall be entitled, to the extent permitted\nunder any applicable law, to select and change a beneficiary or beneficiaries to\nreceive any compensation or benefit payable hereunder following the Executive's\ndeath by giving the Company written notice thereof. In the event of the\nExecutive's death or a judicial determination of his incompetence, references in\nthis Agreement to the Executive shall be deemed, where appropriate, to refer to\nhis beneficiary, estate or other legal representative.\n\n\n\n\n\n\n\n\n\n\n 27. Governing Law.\n -------------\n\n This Agreement shall be governed in accordance with the laws\nof Delaware without reference to principles of conflict of laws.\n\n 28. Notices.\n -------\n\n All notices and other communications required or permitted\nhereunder shall be in writing and shall be deemed given when (a) delivered\npersonally, (b) three days after mailing by certified or registered mail,\npostage prepaid, return receipt requested or (c) delivered by overnight courier\n(provided that a written acknowledgment of receipt is obtained by the overnight\ncourier) to the Party concerned at the address indicated below or to such\nchanged address as such Party may subsequently give such notice of:\n\nIf to the Company: The Gillette Company\n Prudential Tower Building\n Boston, Massachusetts 02199\n\n Attn: General Counsel\n\nIf to the Executive: Mr. James M. Kilts\n c\/o The Gillette Company\n Prudential Tower Building\n Boston, Massachusetts 02199\n\n 29. Headings.\n --------\n\n The headings of the sections contained in this Agreement are\nfor convenience only and shall not be deemed to control or affect the meaning or\nconstruction of any provision of this Agreement.\n\n 30. Withholding.\n -----------\n\n The Company shall withhold from any amounts payable under\nthis Agreement such United States federal, state or local or foreign taxes as\nshall be required to be withheld pursuant to any applicable law or regulation.\nThe Executive acknowledges that except for such withholding, and except for such\ngross-ups as are specifically provided herein, he is responsible for paying his\nown taxes.\n\n 31. Counterparts.\n ------------\n\n This Agreement may be executed in two or more counterparts.\n\n\n\n\n\n\n\n\n\n IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the\ndate first written above.\n\n The Gillette Company\n\n\n\n By: \/s\/ Robert E. DiCenso\n Robert E. DiCenso\n\n\n\n\n\n \/s\/ James M. Kilts \n --------------------------------\n James M. Kilts\n\n\n\n\n\n\n EXHIBIT A\n \n\n STOCK OPTION AGREEMENT\n\n 1. Grant of Option. The Gillette Company (the \"Company\") hereby grants\nto James M. Kilts (the \"Optionee\"), effective as of January 19, 2001 (the \"Grant\nDate\"), an option to purchase an aggregate of 2,000,000 shares of common stock\nof the Company (the \"Common Stock\") at a price of $34.16 per share, purchasable\nas set forth in, and subject to the terms and conditions of, this Stock Option\nAgreement and the Employment Agreement dated as of January 19, 2001 between the\nCompany and the Optionee (the \"Employment Agreement\"). All capitalized terms not\ndefined in this Stock Option Agreement shall have the meanings ascribed to such\nterms in the Employment Agreement.\n\n 2. Exercisability of Option.\n\n (a) On the Grant Date, this option shall vest and be\nexercisable with respect to 500,000 shares. On each of the first three\nanniversaries of the Grant Date, except as otherwise provided below, this option\nshall vest and become exercisable with respect to an additional 500,000 shares.\n\n (b) In the event that the Optionee's employment with the\nCompany is terminated due to death or Disability, pursuant to Section 14(a) or\n14(b), respectively, of the Employment Agreement, this option, to the extent not\nyet vested and exercisable, shall become fully vested and exercisable as of the\ndate of termination, and shall remain exercisable for all shares through the\nfirst anniversary of such date, or, if earlier, January 19, 2011, at which time\nit shall expire to the extent it is not yet exercised.\n\n (c) In the event that the Optionee's employment with the\nCompany is terminated for Cause, pursuant to Section 14(c) of the Employment\nAgreement, this option shall expire.\n\n (d) In the event that the Optionee's employment with the\nCompany is terminated without Cause or for Good Reason, pursuant to Section\n14(d) of the Employment Agreement, or Retirement, pursuant to Section 14(f) of\nthe Employment Agreement, this option shall become fully vested and exercisable\nas of the date of termination and shall remain fully exercisable through the\nfifth anniversary of the date of termination, or, if earlier, January 19, 2011,\nat which time it shall expire to the extent it is not yet exercised.\n\n (e) In the event that the Optionee voluntarily terminates his\nemployment with the Company prior to the third anniversary of the Grant Date,\npursuant to Section 14(e) of the Employment Agreement, this option (x) to the\nextent that it is exercisable as of the date of termination, shall remain fully\nexercisable for 90 days following such date, or, if earlier, January 19, 2011,\nat which time it shall expire, and (y) to the extent that it is not exercisable\nas of the date of termination, shall expire.\n\n\n\n\n\n\n\n\n\n\n (f) Anything elsewhere to the contrary notwithstanding, (x)\nimmediately prior to any Change of Control that occurs while this option remains\noutstanding during the Optionee's employment with the Company (to permit the\nOptionee, if he chooses, to exercise the option and acquire the shares subject\nto such exercise prior to the Change of Control), this option shall become fully\nvested and exercisable, (y) upon any termination by the Optionee which occurs\npursuant to notice given by the Optionee within the 30 day period following the\nfirst anniversary of a Change of Control (a Termination under Section 15(a)(ii)\nof the Employment Agreement), this option shall remain fully exercisable through\nthe fifth anniversary of the date of termination, or, if earlier, January 19,\n2011, and (z) upon any involuntary termination by the Company without Cause\nwhich occurs during the one year period following a Change of Control, this\noption shall remain fully exercisable through January 19, 2011.\n\n (g) Anything herein to the contrary notwithstanding, this\noption shall cease to be exercisable with respect to any shares at the end of\nthe day on January 19, 2011.\n\n 3. Exercise of Option.\n\n (a) Method of Exercise and Payments. Subject to the conditions\nset forth in this Stock Option Agreement, this option may be exercised in\naccordance with any method applicable either to options granted under the\nCompany's 1971 Stock Option Plan, as amended (so long as the Company has any\noptions outstanding under such plan and regardless of whether there are options\noutstanding thereunder if the Company shall not have adopted a successor plan)\nor under any successor stock option plan from time to time in effect\n(collectively, the \"Plan\"), including, without limitation, the provisions for\npayment of the exercise price of options and the provisions for delivery of\nshares purchased, and in accordance with the practices and procedures of the\nCompany applicable to exercise of options by senior executives generally. The\nCompany has in effect, and agrees to continue in effect and to make available to\nthe Optionee at his election, for the term of this option, a \"brokered exercise\"\nprogram under the Plan. The Company will make available to the Optionee loans or\nguarantees with respect to the exercise price insofar as made available to any\nother senior executive or any director of the Company under the Plan or any\nother plan, program or arrangement of the Company.\n\n (b) Reservation of Shares. The Company shall at all times\nreserve, out of its authorized and unissued shares, a number of shares\nsufficient to provide for the exercise in full of this option. All shares issued\nupon exercise of this option shall be duly authorized and, when issued upon such\nexercise, shall be (i) validly issued, fully paid and nonassessable, (ii)\nregistered for sale, and for resale, under Federal and state securities laws and\n(iii) listed, or otherwise qualified, for trading in the United States on a\nnational securities exchange or national securities market system.\n\n\n\n\n\n\n 4. Deferral of Option Gains.\n\n (a) Notwithstanding anything elsewhere in this Agreement to the\ncontrary, the Optionee shall have the right, by furnishing written notice to the\nCompany during his employment with the Company and at least six months prior to\nany exercise of this option, to elect to defer all or a portion of any gains\nrealized upon or in connection with such exercise. Any such deferral shall be\nmade in such manner as may reasonably be required by the Company, including\nwithout limitation such requirements as may apply in order to defer such gains\nfor Federal and state income tax purposes. Payment of the exercise price for\nsuch exercise shall be made by presenting to the Company shares of Common Stock\n(the \"Presentation Shares\") owned by the Optionee (which, in the event they were\nacquired by the previous exercise of a stock option, shall have been held by the\nOptionee for at least six months before the date of such exercise) and having a\nfair market value (as defined in the Plan) equal to the exercise price. The\nexcess of the number of shares for which the option is exercised over the number\nof Presentation Shares shall be deferred in the form of \"Share Units\" as\ndiscussed in the next sentence. A \"Share Unit\" shall represent a share of Common\nStock, including any dividends and other distributions that may be declared or\nmade thereon during the period of the deferral. The Share Units shall be paid\nout under the terms of the Optionee's election to defer in the form of shares of\nCommon Stock.\n\n (b) To the extent that any gain that would be realized by the Optionee\nupon an exercise of this option during his employment with the Company may not\nbe deductible in full by the Company by virtue of Section 162(m) of the Internal\nRevenue Code of 1986, as amended (such Section, together with any successor\nthereto and any regulations thereunder, referred to herein as \"Section 162(m)\"),\nthen the Optionee shall be deemed to have made a timely election to defer such\nportion of such gain pursuant to Section 4(a) above until the later of (i) the\ntime (if any) actually elected pursuant to Section 4(a) and (ii) 30 days\nfollowing the date on which payment of all or part of such deferral amount will\nnot result in loss of deductibility under Section 162(m) (but only up to that\namount which can be paid without loss of deductibility under Section 162(m)).\n\n\n\n\n\n\n 5. Nontransferability of Option. This option is personal and\nno rights granted hereunder may be transferred, assigned, pledged or\nhypothecated in any way (whether by operation of law or otherwise) nor shall any\nsuch rights be subject to execution, attachment or similar process, except that\nthis option may be transferred in whole or in part (a) by will or the laws of\ndescent and distribution, (b) to any Family Member or to any trust, limited\nliability company, partnership or comparable entity, the principal beneficiaries\nof which are the Optionee and\/or his Family Members, provided that such Family\nMembers and\/or entities (and upon distribution their beneficiaries) agree to be\nbound by the provisions of this Stock Option Agreement or (c) to organizations\nqualifying as charitable organizations within the meaning of Section 501(c)(3)\nof the Internal Revenue Code of 1986, as amended. For purposes of clause (b) of\nthe preceding sentence, \"Family Member\" shall mean the Optionee's spouse,\nparents, the parents of the Optionee's spouse, and lineal descendants of any of\nthe foregoing (including descendants by adoption) and any other individual or\nentity included in the definition of \"family member\" for purposes of Form S-8\nRegistration Statement, as from time to time amended. Any individual or entity\nto whom this option has been transferred in whole or in part in accordance with\nthe first sentence of this Section 5 shall, to the extent of the transfer,\nsucceed to the rights, and assume the obligations, of the Optionee under this\nStock Option Agreement but may not transfer this option (in whole or in part)\nother than to the Optionee without the prior written consent of the Company,\nwhich consent shall not be unreasonably withheld. The Optionee shall give notice\nto the Company of any transfer of this option, in whole or in part, pursuant to\nclause (b) of the first sentence of this Section 5. Notwithstanding the\nforegoing, no such transfer shall be effective unless and until Optionee and the\ntransferee(s) have executed such documentation of their respective rights and\nobligations as the Company may reasonably determine to be necessary or\nappropriate.\n\n 6. Adjustment Provisions. The provisions of the Plan (as\ndefined in Section 3(a) above, including Section 9 of the 1971 Stock Option\nPlan, as amended, or any corresponding provision of a successor plan) with\nrespect to changes in the Common Stock in certain events shall be applicable to\nthis option as if incorporated herein, and they are hereby incorporated by\nreference.\n\n In addition, notwithstanding the last sentence of Section 9 of the 1971\nStock Option Plan, as amended, and any corresponding provision of any successor\nplan, upon the occurrence of any event described in such sentence, the Company\nshall, if the Optionee so requests and the Board approves, use its reasonable\nbest efforts to arrange to have the surviving corporation or any corporation of\nwhich the Company has become the direct or indirect subsidiary, assume this\noption or grant a replacement option to the Optionee.\n\n 7. Tax Withholding. The Company's obligation to deliver shares\nupon the exercise of this option shall be subject to the Optionee's satisfaction\nof all applicable Federal, state and local income, excise, and employment tax\nwithholding requirements (\"tax obligations\"). The Optionee may satisfy any such\ntax obligations (a) in any of the manners provided in Section 3(a) above for\npayment of the purchase price; (b) by authorizing the Company to sell securities\nthat would otherwise have been delivered to the Optionee having a Fair Market\nValue equal to, but not greater than, the minimum amount of tax required to be\nwithheld; or (c) by any combination of (a) and (b).\n\n\n\n\n\n\n\n\n\n\n\n 8. The Company's Representations. The Company represents and\nwarrants that (a) it is fully authorized by action of its Board (and of any\nperson or body whose action is required) to enter into this Stock Option\nAgreement and to perform its obligations under it; (b) the execution, delivery\nand performance of this Stock Option Agreement by the Company does not violate\nany applicable law, regulation, order, judgment or decree or any agreement, plan\nor corporate governance document of the Company or any agreement among holders\nof its shares; and (c) upon the execution and delivery of this Stock Option\nAgreement by the Company and the Optionee, this Stock Option Agreement shall be\nthe valid and binding obligation of the Company, enforceable in accordance with\nits terms, except to the extent enforceability may be limited by applicable\nbankruptcy, insolvency or similar laws affecting the enforcement of creditors'\nrights generally.\n\n 9. Miscellaneous.\n\n (a) Any dispute arising out of or relating to \nthis Stock Option Agreement shall be resolved by binding arbitration in \naccordance with Section 18 of the Employment Agreement.\n\n (b) All notices and other communications \nrelating to this Stock Option Agreement shall be given as provided in Section 28\nof the Employment Agreement.\n\n (c) Sections 20 (other than the last sentence \nthereof), 23, 25, 26 (second sentence only), 29 and 31\nof the Employment Agreement (relating, respectively, to assignability; amendment\nor waiver; survivorship; references; headings; and counterparts) shall be deemed\nincorporated herein in full, with the references to the \"Agreement\" in such\nSections being treated as references to this Stock Option Agreement and the\nreferences to the \"Executive\" in such Sections being treated as references to\nthe Optionee.\n\n (d) Nothing contained in this Stock Option \nAgreement shall be construed or deemed under any circumstances to bind the \nCompany to continue the employment of the Optionee for the period within which \nthis option may be exercised.\n\n (e) This Stock Option Agreement shall be \ngoverned, construed, performed and enforced in accordance\nwith its express terms, and otherwise in accordance with the laws of the State\nof Delaware, without reference to conflict of laws principles.\n\n\n\n\n\n\n\nGrant Date: January 19, 2001\n THE GILLETTE COMPANY\n\n By: \/s\/ Robert E. DiCenso\n\n Name: Robert E. DiCenso\n Title: Senior Vice President --\n Personnel and Administration\n ACCEPTED\n OPTIONEE\n\n\n \/s\/ James M. Kilts \n ------------------------------------------\n James M. Kilts\n\n\n\n\n\n\n\n EXHIBIT B\n<\/pre>\n
\n SUMMARY OF KEY TERMS AND CONDITIONS
\n FOR ADDITIONAL STOCK OPTIONS<\/p>\n
\n1. Date, Size and Term of Grants: Not less than 650,000 shares in each of 2001, 2002 and
\n 2003, subject to adjustment pursuant to Section 7(a) of
\n the Employment Agreement. The term of each option shall
\n be 10 years.<\/p>\n2. Exercise Price: Equal to the Fair Market Value on the date of grant.<\/p>\n
3. Vesting: Each option shall vest and become exercisable in
\n substantially equal annual installments on the first
\n three anniversaries of its grant date, unless earlier
\n vested upon termination of employment or Change of
\n Control.<\/p>\n
4. Consequences of Different Terminations:<\/p>\n
(a) Death or Disability:
\n Upon the Executive’s death or Disability, all outstanding
\n options shall be fully vested and remain exercisable for the
\n lesser of one year and their remaining originally scheduled
\n terms. <\/p>\n
(b) Termination for Cause: All outstanding options shall be forfeited.<\/p>\n
(c) Termination by the Company without Cause or All outstanding options shall be fully vested and remain
\n by the Executive for Good Reason or upon exercisable for the lesser of five years and the
\n Retirement pursuant to Section 14(f) of the remainder of their originally scheduled terms.
\n Employment Agreement:<\/p>\n
(d) Voluntary Termination: Outstanding options that are vested at the date of
\n termination shall remain exercisable for the lesser of
\n 90 days and the remainder of their originally scheduled
\n terms; all unvested options shall be forfeited.<\/p>\n
(e) Certain Terminations After a Change of Upon any termination of the Executive’s employment (1)
\n Control: by the Executive pursuant to a notice given by him
\n within the 30-day period following the first anniversary of a
\n Change of Control, outstanding options shall remain
\n exercisable for the lesser of five years and the remainder of
\n their originally scheduled terms, and (2) by the Company
\n without Cause during the one-year period the one-year period
\n following a Change of Control, outstanding options shall remain
\n exercisable for the remainder of their originally scheduled terms.<\/p>\n
5. Consequences of a Change of Control: Immediately prior to any Change of Control, all
\n outstanding options shall be fully vested.
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