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EXHIBIT 10.3
FIRST AMENDMENT
CHANGE IN CONTROL AGREEMENT
THIS FIRST AMENDMENT, made as of this 26th day of February, 1999, by
and between BOWATER INCORPORATED, a Delaware corporation having a mailing
address of 00 Xxxx Xxxxxxxxxx Xxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 (the
"Corporation"), and __________________of ___________________________________
(the "Executive").
WHEREAS, the Corporation and the Executive entered into a Change in
Control Agreement dated November 1, 1995 (the "Agreement") and
WHEREAS, in consideration of the grant of an Equity Participation Right
Award to Executive as of February 22, 1999, for 1,000 units at a xxxxx xxxxx of
$39.78, the Executive has agreed to amend the definition of "Change in Control"
in the Agreement.
NOW THEREFORE, the Agreement is amended as follows:
1. Section 1(a) of the Agreement is amended to read as follows:
"(a) "Acquiring Person" means the Beneficial Owner, directly or
indirectly, of common stock representing 20% or more of the
combined voting power of the Corporation's then outstanding
securities, not including (except as provided in clause (i) of
the next sentence) securities of such Beneficial Owner
acquired pursuant to an agreement allowing the acquisition of
up to and including 50% of such voting power approved by
two-thirds of the members of the Board who are Board members
before the Person becomes Beneficial Owner, directly or
indirectly, of common stock representing 5% or more of the
combined voting power of the Corporation's then outstanding
securities. Notwithstanding the foregoing, (i) securities
acquired pursuant to an agreement described in the preceding
sentence will be included in determining whether a Beneficial
Owner is an Acquiring Person if, subsequent to the approved
acquisition, the Beneficial Owner acquires 5% or more of such
voting power other than pursuant to such an agreement so
approved and (ii) a Person shall not be an Acquiring Person if
such Person is eligible to and files a Schedule 13G with
respect to such Person's status as a Beneficial Owner of all
common stock of the Corporation of which the Person is a
Beneficial Owner."
2. Section 1(b) is amended to read as follows:
"(b) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934."
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3. A new Section 1(c) is added to the Agreement as follows, and succeeding
subsections are redesignated accordingly:
"(c) "Beneficial Owner" of common stock means (i) a Person who
beneficially owns such common stock, directly or indirectly,
or (ii) a Person who has the right to acquire such common
stock (whether such right is exercisable immediately or only
with the passage of time) pursuant to any agreement,
arrangement or understanding (whether or not in writing) or
upon the exercise of conversion rights, exchange rights,
warrants, options or otherwise."
4. Section 1(e) (as redesignated) of the Agreement is amended to read as
follows:
"(e) "Change in Control" shall be deemed to have occurred upon:
(i) The date that any Person is or becomes an Acquiring
Person;
(ii) The date that the Corporation's shareholders approve
a merger, consolidation or reorganization of the
Corporation with another corporation or other Person,
unless, immediately following such merger,
consolidation or reorganization, (A) at least 50% of
the combined voting power of the outstanding
securities of the resulting entity would be held in
the aggregate by the shareholders of the Corporation
as of the record date for such approval (provided
that securities held by any individual or entity that
is an Acquiring Person, or who would be an Acquiring
Person if 5% were substituted for 20% in the
definition of such term, shall not be counted as
securities held by the shareholders of the
Corporation, but shall be counted as outstanding
securities for purposes of this determination), or
(B) at least 50% of the board of directors or similar
body of the resulting entity are Continuing
Directors.
(iii) The date the Corporation sells or otherwise transfers
all or substantially all of its assets to another
corporation or other Person, unless, immediately
after such sale or transfer, (A) at least 50% of the
combined voting power of the then-outstanding
securities of the resulting entity immediately
following such transaction is held in the aggregate
by the Corporation's shareholders as determined
immediately prior to such transaction, (provided that
securities held by an individual or entity that is an
Acquiring Person, or who would be an Acquiring Person
if 5% were substituted for 20% in the definition of
such term, shall not be counted as securities held by
the shareholders of the Corporation, but shall be
counted as outstanding securities for purposes of
this determination), or (B) at
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least 50% of the board of directors or similar body
of the resulting entity are Continuing Directors; or
(iv) The date on which less than 50% of the total
membership of the Board consists of Continuing
Directors."
5. Section 1(g) (as redesignated) of the Agreement is amended to read as
follows:
"(g) "Continuing Directors" shall mean any member of the Board who
(i) was a member of the Board prior to the date of the event
that would constitute a Change in Control, and any successor
of a Continuing Director while such successor is a member of
the Board, (ii) is not an Acquiring Person or an Affiliate or
Associate of an Acquiring Person, and (iii) is recommended or
elected to succeed the Continuing Director by a majority of
the Continuing Directors."
6. Section 1(i)(iv) (as redesignated) of the Agreement and the narrative
paragraph in Section 1(i) (as redesignated) of the Agreement, are amended,
solely to correct erroneous paragraph references, as follows:
"(iv) the taking of any action by the Corporation (including the
elimination of a plan without providing substitutes therefor,
the reduction of the Executive's awards thereunder or failure
to continue the Executive's participation therein) that would
substantially diminish the aggregate projected value of the
Executive's awards or benefits under the Corporation's benefit
plans or policies described in Section 1(i)(ii) in which the
Executive was participating at the time of the Change in
Control;
. . .
Any circumstance described in this Section 1(i) shall constitute Good
Reason even if such circumstance would not constitute a breach by the
Corporation of the terms of the Employment Agreement between the
Corporation and the Executive in effect on the date of the Change in
Control. The Executive shall be deemed to have terminated his
employment for Good Reason effective upon the effective date stated in
a written notice of such termination given by him to the Corporation
(which notice shall not be given, in circumstances described in Section
1(i)(i), before the end of the thirty (30) day period described
therein) setting forth in reasonable detail the facts and circumstances
claimed to provide the basis for termination, provided that the
effective date may not precede, nor be more than sixty (60) days from,
the date such notice is given. The Executive's continued employment
shall not constitute consent to, or a waiver of rights with respect to,
any circumstances constituting Good Reason hereunder."
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7. Section 1(k) (as redesignated) of the Agreement is amended to read as
follows:
"(k) "Person" means any individual, firm, corporation, partnership,
trust or other entity."
Except as hereby amended, all other provisions of the Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this First Amendment to be
executed as of the day and year first above written.
BOWATER INCORPORATED
By: ___________________________________ ___________________________________
Name:__________________________________ Name: _____________________________
Title:_________________________________ Date Signed: ______________________
Date Signed:___________________________
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SCHEDULE TO EXHIBIT 10.3
FIRST AMENDMENT
CHANGE IN CONTROL AGREEMENTS
NAME DATE OF AGREEMENT
E. Xxxxxxx Xxxxx 02/26/99
Xxxxx X Xxxxxxxx 02/26/99
Xxxxxx X. XxXxxx 02/26/99
Xxxxxx X. Xxxxx 02/26/99
Xxxxxx X. Xxxxxxx 02/26/99
Xxxxxxx X. Xxxxxx 02/26/99
