EXHIBIT 10.23
AGREEMENT
between
CHAMPION INTERNATIONAL CORPORATION
and
XXXXXX X. XXXXXXXXX, XX.
Effective October 18, 1990
Table of Contents
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Paragraph
Number Title Page
--------- ----- ----
1 Termination 1
(a) Termination Payments 1
(i) Monthly Payments 1
(ii) Lump Sum Payment Upon Termination
Following a Change in Control 1
(iii) Cash-Out of Options and Contingently 1
Credited Shares
(iv) Payment of Value of Excess Benefit 2
and Supplemental Retirement Plan
Payments
(v) Participation in Benefit Plans 2
(b) Definition of Termination 3
(c) Definition of Cause 3
(d) Definition of Change in Control 4
2 Termination During Month 4
3 Post-termination Obligations 4
of Executive; Default by Company
(a) Assistance in Litigation 4
(b) Detrimental Conduct 5
(c) Discoveries and Inventions 5
(d) Reimbursement of Expenses 5
(e) Competition 5
(f) Failure to Comply 5
(g) Post-termination Default in 6
Payments or Benefits
4 Determination of Benefits 6
5 (a) Time of Payment 6
(b) Withholding of Taxes 7
6 Decisions by Company 7
7 Prior Agreements 7
8 Consolidation or Merger 7
9 (a) Non-assignability 7
(b) No Attachment 7
(c) Binding Agreement 8
(d) Unfunded Obligations; Trust 8
Agreement
10 (a) Amendment of Agreement 9
(b) No Waiver 9
11 Severability 9
12 Headings 9
13 Governing Law 9
14 Parachute Tax 10
15 Notices 10
16 Arbitration 10
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EXHIBITS
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Page
Exhibit Reference
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A Certain benefits to be provided after a 1
termination following a change in control
B Payments and benefits subject to 6
acceleration in event of default in
payments or benefits by Company after
cessation of employment
C Form of Trust Agreement 8
D Amounts to be deposited in trust upon a 8
potential change in control
DEFINED TERMS
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Page
Defined Term Paragraph Reference
------------ --------- ---------
Agreement Introduction 1
Cause 1(c) 3
Change in Control 1(d) 4
Code 1(a)(iii) 2
Company Introduction 1
Executive Introduction 1
Fair Market Value 1(a)(iii) 2
Legal Expense Agreement 1(b)(ii) 3
Potential Change in Control 9(d)(vii) 9
Termination 1(b) 3
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THIS AGREEMENT between CHAMPION INTERNATIONAL CORPORATION, a New York
corporation (the "Company"), and XXXXXX X. XxxXXXXXX, XX. (the "Executive"),
effective October 18, 1990 (the "Agreement").
W I T N E S S E T H:
WHEREAS, the Executive is now in the employ of the Company; and
WHEREAS, the Executive was elected an Executive Vice President of the
Company on January 18, 1990; and
WHEREAS, the Company wishes to provide additional incentive for the
Executive to continue in the employ of the Company;
NOW, THEREFORE, it is hereby agreed by and between the parties as follows:
1. Termination
-----------
In the event of a termination, as defined in subparagraph 1(b) below, the
following provisions of this paragraph 1 shall apply.
(a) Termination Payments
--------------------
(i) Monthly payments. Subject to compliance with the applicable
----------------
provisions of paragraph 3 below, the Company shall pay the Executive or, in the
event of his subsequent death, his beneficiary or beneficiaries or his estate,
as the case may be, as severance pay or liquidated damages, or both, a monthly
sum equal to the highest total monthly compensation (highest total of annual
salary plus annual bonus for any calendar year of employment, divided by
twelve), paid to the Executive. Such payments shall commence on the last day of
the month next following the termination of employment of the Executive and
shall continue until the last day of the twenty-fourth full calendar month
following the termination of employment of the Executive, provided, however,
that such payments shall not continue beyond the earlier of (A) the last day of
the month next preceding his normal retirement date under the Company's pension
plan, and (B) the last day of the month next preceding the month in which he
shall, with his written consent, commence receiving his retirement allowance
under the Company's pension plan.
(ii) Lump Sum Payment upon Termination following a Change in
-------------------------------------------------------
Control. Anything in subparagraph 1(a)(i) above or elsewhere in this Agreement
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to the contrary notwithstanding, if termination of the Executive occurs within
three years following a Change in Control: (x) the total of the monthly payments
provided for in subparagraph 1(a)(i) above shall be accelerated and paid in a
lump sum as soon as practicable after such termination if termination occurs
before the last day of the month next preceding the Executive's normal
retirement date under the Company's pension plan; if termination occurs on or
after such last day, no payment pursuant to subparagraph 1(a)(i) or (ii) shall
be made to the Executive; (y) the benefits required to be provided thereafter to
the Executive, his spouse and family, set forth in attached Exhibit A, shall be
---------
valued at the cost of acquiring insurance policies which would provide such
benefit coverage over the period of time involved in subparagraph 1(a)(i) above,
and such cost shall be paid in a lump sum as soon as practicable after
termination; and (z) the Executive shall be paid the amount payable, if any,
pursuant to subparagraph 1(a)(iii) and the amount payable pursuant to
subparagraph 1(a)(iv).
(iii) Cash-Out of Options and Contingently Credited Shares. In the
----------------------------------------------------
event that the Executive shall, at the time of termination of his employment
within three years following a Change in Control, (A) hold an outstanding and
unexercised (whether or not exercisable at the time) option or options
theretofore granted by the Company to him prior to the Change in Control, (B)
have shares contingently credited to him prior to the Change in Control under
the Company's Contingent Compensation Plan or 1986 Contingent Compensation Plan
or a successor plan, or both hold such option and have such shares contingently
credited to him,
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unless the Executive shall have given the Company written notice to the contrary
within thirty (30) days following such termination of employment, the Company
shall pay him, in a lump sum, an amount equal to the excess above the option
price, of each such option that is not an Incentive Stock Option as defined in
Section 422A of the Internal Revenue Code of 1986 as amended (the "Code"), of
the Fair Market Value of Company shares at the time of termination, and the Fair
Market Value at the time of termination of the shares, if any, so contingently
credited. Solely for the purpose of this subparagraph 1(a)(iii), Fair Market
Value at the time of termination shall mean the higher of (i) the average of the
reported closing prices of the Common Shares of the Company, as reported in "New
York Stock Exchange Composite Transactions" of the Eastern Edition of The Wall
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Street Journal, for the last trading day prior to the termination and for each
--------------
trading day of the preceding sixty calendar days, and (ii) in the event that a
Change in Control of the Company, as defined in subparagraph 1(d) below, shall
have taken place prior to termination as the result of a tender or exchange
offer, and such Change in Control was consummated within three years of
termination, an amount equal to the highest consideration paid for Common Shares
of the Company in the course of such tender or exchange offer.
(iv) Payment of Value of Excess Benefit and Supplement Retirement
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Plan Payments Benefits. Anything in this Agreement to the contrary
----------------------
notwithstanding, in the event of a termination of the Executive's employment
within three years following a Change in Control, the Executive shall be
entitled to a monthly retirement allowance for life payable on a straight life
annuity basis, equal to the benefit payable, if any, under the Company's excess
benefit and supplemental retirement plans, utilizing the monthly payments set
forth in subparagraph 1(a)(i) above for purposes of the pension calculation for
the termination period set forth in such subparagraph 1(a)(i). For the purposes
of this clause (iv), the excess benefit and supplemental retirement plans
payments shall include the pension enhancement resulting from service credit for
pension benefit during the termination period set forth in subparagraph 1(a)(i)
above. Such retirement allowance shall be valued and discounted in the manner
set forth in subparagraph 3(g) below relating to default in payments or benefits
and shall be paid in a lump sum as soon as practicable after such termination.
(v) Participation in Benefit Plans. The Executive shall be
------------------------------
eligible to receive, during any period that he shall be entitled to receive
payments from the Company under subparagraph 1(a)(i) above (whether or not any
such period shall be accelerated), as if the Executive had continued to be
employed by the Company during such period, any benefits and emoluments for
which key executives are eligible under any hospitalization, health care or
dental care plan, life or other insurance or death benefit plan, travel and
accident insurance, executive or contingent compensation plan, restricted stock
or stock purchase plan, retirement income or pension plan, vacation plan, or
other present or future employee benefit plans or programs of the Company for
which key executives are eligible, in accordance with the provisions of any such
plan or program, provided, however, that during the period that the Executive is
so entitled to receive payments under subparagraph 1(a)(i) above, he shall not
be eligible to participate in the Company's Savings Plan for Salaried Employees
or to receive option grants under any stock option plan of the Company. Nothing
in this Agreement shall preclude the Company from terminating or amending any
such employee benefit plan or program so as to eliminate, reduce or otherwise
change any benefit payable thereunder. To the extent that such benefits or
service credits for benefits shall not be payable or provided under such plans
or programs by reason of the Executive no longer being an employee of the
Company, the Company shall itself pay or provide for payment of such benefits
and service credit for benefits.
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(b) Definition of Termination
-------------------------
The term "termination" for purposes of this Agreement shall mean:
(i) The termination by the Company of the Executive's full-time
employment with the Company for any reason other than Cause; or
(ii) Any (A) failure to elect or re-elect the Executive to an office
and position at least equal to the office and position he held immediately prior
to such failure, or removal of the Executive from such office or position, (B)
material change by the Company of the Executive's functions, duties or
responsibilities without his express written consent as a result of which change
the Executive's position with the Company shall be or become of less dignity,
responsibility, importance or scope than the position he held at the time of
such material change, and any such material change shall be deemed a continuing
breach of this Agreement, (C) reduction in the monthly base salary of the
Executive below the highest monthly base salary paid from and after October 18,
1990, (D) liquidation, dissolution, consolidation or merger of the Company, or
transfer of all or substantially all of its assets, other than in compliance
with the provisions of paragraph 8 below, or (E) breach of this Agreement by the
Company, or breach of the Agreement Relating to Legal Expenses between the
Company and the Executive dated October 18, 1990 (the "Legal Expense
Agreement"); provided that in any such event the Executive elects to terminate
his employment under this Agreement upon not less than sixty days' advance
written notice given within a reasonable period of time not to exceed, except in
case of a continuing breach, four calendar months after the event giving rise to
the election.
(c) Definition of Cause
-------------------
For the purpose of any provision of this Agreement, the termination of the
Executive's employment shall be deemed to have been for Cause only if
termination of his employment shall have been the result of an act or acts of
dishonesty on the part of the Executive constituting a felony and resulting or
intended to result directly or indirectly in gain or personal enrichment at the
expense of the Company; provided that there shall have been delivered to the
Executive a certified copy of a resolution of the Board of Directors of the
Company adopted by the affirmative vote of not less than three-fourths of the
entire membership of the Board of Directors at a meeting called and held for
that purpose and at which the Executive was given an opportunity to be heard,
finding that the Executive was guilty of such conduct, specifying the
particulars thereof in detail.
Anything in this subparagraph 1(c) or elsewhere in this Agreement to the
contrary notwithstanding, the employment of the Executive shall in no event be
considered to have been terminated by the Company for Cause if termination of
his employment took place (A) as the result of bad judgment or negligence on the
part of the Executive, or (B) as the result of an act or omission without intent
of gaining therefrom directly or indirectly a profit to which the Executive was
not legally entitled, or (C) because of an act or omission believed by the
Executive in good faith to have been in or not opposed to the interests of the
Company, or (D) for any act or omission in respect of which a determination
could properly be made that the Executive met the applicable standard of conduct
prescribed for indemnification or reimbursement or payment of expenses under (I)
the Restated Certificate of Incorporation or By-Laws of the Company, or (II) the
laws of the State of New York, or (III) the directors' and officer's liability
insurance of the Company, in each case either as in effect at the time of this
Agreement or in effect at the time of such act or omission, or (E) as the result
of an act or omission which occurred more than twelve calendar months prior to
the Executive's having been given notice of the termination of his employment
for such act or omission unless the commission of such act or such omission
could not at the time of such commission or
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omission have been known to a member of the Board of Directors of the Company
(other than the Executive, if he is then a member of the Board of Directors), in
which case more than twelve calendar months from the date that the commission of
such act or such omission was or could reasonably have been so known, or (F) as
the result of a continuing course of action which commenced and was or could
reasonably have been known to a member of the Board of Directors of the Company
(other than the Executive, if he is then a member of the Board of Directors)
more than twelve calendar months prior to notice having been given to the
Executive of the termination of his employment.
(d) Definition of Change in Control
-------------------------------
For the purpose of this Agreement, a Change in Control of the Company
shall be deemed to have occurred if
(i) any "person" (as defined in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), other than a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing thirty percent (30%) or more of the combined voting power of the
Company's then outstanding securities;
(ii) during any period within two (2) consecutive years there shall
cease to be a majority of the Board of Directors comprised as follows:
individuals who at the beginning of such period constitute the Board of
Directors and any new director(s) whose election by the Board of Directors or
nomination for election by the Company's shareholders was approved by a vote of
at least two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved; or
(iii) the shareholders of the Company approve (A) a plan of complete
liquidation of the Company or (B) the sale or other disposition of all or
substantially all the Company's assets.
2. Termination During Month
------------------------
In the event that the employment of the Executive shall terminate prior to
the end of a calendar month as a result of a termination described in paragraph
1 above, the Company shall pay the Executive, in addition to any other amounts
payable by the Company hereunder, a lump cash sum which shall in no event be
less than the salary plus any bonus to which the Executive would have been
entitled had he remained in full-time employment until the end of the month in
which his employment shall so terminate.
3. Post-termination Obligations of Executive; Default by Company
-------------------------------------------------------------
All payments and benefits to the Executive under this Agreement after his
full-time employment with the Company shall have terminated shall be subject to
compliance with the following provisions, which compliance shall be subject to
the proviso in subparagraph 3(e) below. Anything in this paragraph 3 or
elsewhere in this Agreement to the contrary notwithstanding, the Executive may
continue to serve as a director, after his full-time employment with the Company
shall have terminated, of any corporation which he has served as a director for
the last six months of his full-time employment with the Company.
(a) Assistance In Litigation
------------------------
The Executive shall, upon reasonable notice, furnish such information and
proper assistance to the Company as may reasonably be required by the Company in
connection with any litigation in which it or any of its subsidiaries or
affiliates is or may become a party.
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(b) Detrimental Conduct
-------------------
The Executive shall not to the material detriment of the Company knowingly
disclose or reveal to any unauthorized person any manufacturing or trade secret
or other confidential information relating to the Company, its subsidiaries or
affiliates, or to any of the businesses operated by them and confirms that such
information constitutes the exclusive property of the Company. The Executive
shall not otherwise knowingly act or conduct himself to the material detriment
of the Company, its subsidiaries or affiliates, or in a manner which is
materially inimical or contrary to their interests, including, without
limitation, through competition materially detrimental to the Company, its
subsidiaries or affiliates, in any of the businesses in which they may be
engaged at the time of termination of his employment. The Executive recognizes
that the restrictions on his activities contained in this Agreement are required
for the reasonable protection of the Company and its investments.
(c) Discoveries and Inventions
--------------------------
If, while employed by the Company or during a period of one year after
termination of such employment, the Executive shall have made, either solely or
jointly with others, any discovery, improvements or invention which would
pertain or relate in any way to the business, products, publications or
processes of the Company, its subsidiaries or affiliates at the time of
termination of his employment, such discovery, improvement or invention (whether
or not of a patentable nature) shall be the exclusive property of the Company.
The Executive shall execute and deliver to the Company without further
compensation any documents which the Company may deem necessary or appropriate
to prepare or prosecute applications for patents upon such discovery,
improvement or invention, to assign and transfer to the Company his entire
right, title and interest in and to such discovery, improvement or invention,
and patents therefor, or otherwise more fully and perfectly to evidence the
Company's ownership thereof.
(d) Reimbursement of Expenses
-------------------------
The Company shall pay or reimburse the Executive for all reasonable travel
and other expenses incurred by the Executive in performing his obligations under
this paragraph 3.
(e) Competition
-----------
The Executive shall not engage in competition with any of the businesses in
which the Company, its subsidiaries or affiliates may be engaged at the time of
termination of his employment if such competition should be materially
detrimental to the Company, its subsidiaries or affiliates.
(f) Failure to Comply
-----------------
If the Executive, for any reason other than death or disability, shall,
without the written consent of the Company, fail to comply with any provision of
this paragraph 3, his rights to any future payments or other benefits hereunder
shall terminate, and the Company's obligations to make such payments and provide
such benefits shall cease; provided, however, that no failure to comply with any
provision of this paragraph 3 shall be deemed to have occurred unless and until
the Executive shall have received written notice on behalf of the Board of
Directors of the Company, specifying the conduct alleged to constitute such
failure, and has thereafter continued to engage in such conduct after a
reasonable opportunity and a reasonable period, but in no event more than sixty
days after receipt of such notice, to refrain from such conduct. In no event
shall the Executive be under any obligation to repay to the Company any amounts
theretofore paid to him.
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(g) Post-termination Default in Payments or Benefits
------------------------------------------------
If, after the Executive ceases to be an employee of the Company, the
Company should (i) default in payment of all or any part of the payments
required to be made hereunder or under the Legal Expense Agreement, or (ii) fail
to pay for or provide any benefits required to be provided hereunder, and if the
Company should not remedy such default or failure within thirty (30) days after
having received notice of such default or failure from the Executive, his
spouse, or such other person or entity who or which is entitled thereto, the
applicable payments or benefits set forth in Exhibit B shall, at the sole
---------
election of the Executive, his spouse, or such other person or entity then
entitled thereto, exercised in writing signed by the Executive, his spouse or
such other person or entity, and delivered to the Company within 90 days after
the expiration of such thirty-day period, be accelerated and become immediately
due and payable in a lump sum equal to the total of (x) the severance payment
set forth in Exhibit B, if applicable, and (y) the cost of acquiring insurance
---------
policies which would provide the disability, medical and dental coverages set
forth in Exhibit B, if applicable, and (z) all amounts, if any, payable under
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the excess benefit and supplemental retirement plans set forth in Exhibit B in
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an actuarially equivalent lump sum calculated by utilizing the 1983 GAM Table
(or such other pensioner annuity mortality table as the Company with the
Executive's written consent or, following his death, his spouse's or other
Beneficiary's consent, shall determine) and discounted to a present value amount
by applying a discount rate, equal to the arithmetic average of (i.e., one-
twelfth of the sum of) the single employer interest rates for immediate
annuities promulgated by the Pension Benefit Guaranty Corporation each month
during the calendar year immediately preceding the date of payment as set forth
in Appendix B to Part 2619 of 29 Code of Federal Regulations or such successor
to such Appendix B as may be in effect during such calendar year, to all such
retirement payments which otherwise would become due thereafter. In the event
the election referred to in the preceding sentence has been made, then the total
amount due and payable from the Company pursuant to this subparagraph shall be
the sum of all accelerated amounts, together with any expenses incurred in
enforcing payment thereof (including all reasonable legal fees). In making the
foregoing retirement payment calculations, the intent is to compute a lump sum
amount which will provide the Executive and his spouse or other Beneficiary, as
the case may be, with the same amount, after deduction of all federal, state and
municipal income taxes, as he and his spouse or other Beneficiary, as the case
may be, would have retained, after all such income taxes, had payments and
benefits been made and provided as originally scheduled and without
acceleration. It is understood and agreed that this subparagraph 3(g) shall not
apply to any default or failure to pay, as described in the first sentence of
this subparagraph 3(g), which occurs during the Executive's period of
employment; upon any such default or failure to pay, the Executive shall be
entitled to such payments as may be applicable pursuant to subparagraph 1(a).
4. Determination of Benefits
-------------------------
Whenever under this Agreement it is necessary to determine whether one
benefit is less than, equal to or larger than another, whether or not such
benefits are provided under this Agreement, such determination shall be made by
the Company's independent consulting actuary, using mortality, interest and any
other assumptions normally used at the time by such actuary in determining
actuarial equivalents for the purpose of employee benefit plans of the Company.
5. (a) Time of Payment
---------------
Anything in this Agreement to the contrary notwithstanding, the Company
may, for its
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own administrative convenience or for any other reason deemed by it sufficient,
accelerate payment to the Executive of any sums due under this Agreement
following termination of his employment; provided, however, that payments by the
Company under this Agreement in any one calendar year shall not, as a result of
such acceleration, together with any payments required to be made under the
pension plan of the Company, exceed an amount equal to (i) 80 percent of his
monthly rate of salary paid for the last full calendar month of his employment,
multiplied by (ii) the number 12.
(b) Withholding of Taxes
--------------------
The Company may withhold from any benefits payable under this Agreement all
federal, state, city or other taxes as shall be required pursuant to any law or
governmental regulation or ruling.
6. Decisions by Company
--------------------
Except as otherwise expressly provided in this Agreement, any decision or
action by the Company relating to this Agreement, its operation or its
termination, shall be made by the Board of Directors. Any decision or action of
such Board shall, to the extent permitted by law, be by the affirmative vote of
not less than three-fourths of the members of the Board of Directors then in
office; provided, however, that in the event of any dispute as to any benefit
payable under this Agreement, the Executive shall have the same rights as a
Participant under the Company's pension plan in effect at the time with respect
to the method of determining such dispute and enforcing his rights with respect
thereto.
7. Prior Agreements
----------------
This Agreement shall supersede any prior employment and severance agreement
between the Company or any predecessor of the Company and the Executive, but
this Agreement shall not affect or operate to reduce any benefit or compensation
of any kind not expressly provided for in this Agreement, including, without
limitation, any employee stock option or stock appreciation right and any
agreements under the Company's Restricted Share Performance Plan.
8. Consolidation or Merger
-----------------------
Nothing in this Agreement shall preclude the Company from consolidating or
merging into or with, or transferring all or substantially all of its assets to,
another corporation which assumes this Agreement and all obligations of the
Company hereunder. Upon such a consolidation, merger or transfer of assets and
assumption, the term, "Company", shall refer to such other corporation and this
Agreement shall continue in full force and effect.
9. (a) Non-assignability
-----------------
Neither this Agreement nor any right or interest hereunder shall be
assignable by the Executive or the beneficiaries of the Executive or by his
legal representatives without the Company's prior written consent; provided,
however, that nothing in this subparagraph 9(a) shall preclude (i) the Executive
from designating a beneficiary to receive any benefit payable on his death, and
(ii) the legal representatives of the estate of the Executive from assigning any
rights hereunder to the person or persons entitled thereto under his will or, in
the case of intestacy, to the person or persons entitled thereto under the laws
of intestacy applicable to his estate.
(b) No Attachment
-------------
Except as otherwise required by law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrances, charge, pledge or hypothecation or to execution,
attachment, levy or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null, void
and of no effect.
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(c) Binding Agreement
-----------------
This Agreement shall be binding upon and inure to the benefit of the
Company, its successors and assigns.
(d) Unfunded Obligations; Trust Agreement
-------------------------------------
(i) All payments to be made hereunder shall be made from the
general funds of the Company. To the extent that any person or entity acquires a
right to receive any payment hereunder, such right shall be no greater than the
right of an unsecured general creditor of the Company except to the extent
otherwise provided by law. No person who is entitled to payments hereunder shall
have any right, title or interest in or to any assets or investments which may
be acquired or made by the Company to aid it in meeting its obligations
hereunder.
(ii) Anything in this subparagraph 9(d) or elsewhere in this
Agreement to the contrary notwithstanding, the Company may provide the Executive
with collateral security, in the form of a bank letter of credit, an interest in
a trust or otherwise, to secure a portion of any or all of the Company's
obligations to the Executive under this Agreement and any other agreement. In
this connection, the Company has entered into a Trust Agreement substantially in
the form attached hereto as Exhibit C and, under the circumstances and upon the
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terms and conditions set forth therein, the Executive will be a beneficiary
under the Trust therein established, this Agreement and the Legal Expense
Agreement (and its related memorandum) will be listed on Exhibit I of such Trust
Agreement, the amounts to be deposited with the trustee under the Trust
Agreement shall be those set forth on the Schedule of Amounts to be Deposited in
Trust Upon a Potential Change in Control, a copy of which is attached hereto as
Exhibit D, and any other benefits which the Company, in its sole discretion,
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shall agree to secure by the Trust Agreement.
(iii) If a Potential Change in Control should take place while the
Executive is in the employ of the Company, the value of the benefits set forth
in Exhibit D to be delivered by the Company to the trustee under such Trust
---------
Agreement shall be equal to the total of (x) the severance, options,
contingently credited shares and legal expenses payments set forth in Exhibit D,
---------
(y) the cost of acquiring insurance policies which would provide the disability,
medical and dental coverages set forth in Exhibit D, and (z) all amounts, if
---------
any, payable under the excess benefit and supplemental retirement plans payments
(as described in subparagraph 1(a)(iv) above) set forth in Exhibit D.
---------
(iv) The value of the excess benefit and supplemental retirement
plans payments shall be an actuarially equivalent amount calculated by utilizing
the 1983 GAM Table (or such other pensioner annuity mortality table as the
Company with the Executive's written consent, or following his death, his
spouse's or other Beneficiary's consent, shall determine) and discounted to a
present value amount by applying a discount rate, equal to the arithmetic
average of (i.e., one-twelfth of the sum of) the single employer interest rates
for immediate annuities promulgated by the Pension Benefit Guaranty Corporation
each month during the calendar year immediately preceding the date of payment as
set forth in Appendix B to Part 2619 of 29 Code of Federal Regulations or such
successor to such Appendix B as may be in effect during such calendar year, to
all such retirement benefits which otherwise would become due thereafter. In
making the foregoing retirement payment calculations, the intent is to compute a
lump sum payment which will provide the Executive with the same amount of
benefit, after deduction of all federal, state and municipal income taxes, as he
would have retained, after all such income taxes, had payments been made as
originally scheduled and without acceleration.
(v) Anything in this subparagraph 9(d) or elsewhere in this Agreement
to the
8
contrary notwithstanding, the amount to be paid by the Company to the trustee
pursuant to the preceding provisions of this subparagraph 9(d) shall be reduced
by the amount, if any, that the Board of Directors of the Company expressly
determines, in its sole discretion on the advice of the Company's independent
public accountants or its tax counsel or other experts selected by the Board of
Directors, as a result of the application of the provisions of paragraph 14
below, is not expected to be paid by the trustee to the Executive and his
beneficiary or beneficiaries.
(vi) The Company shall continue to be liable to make all payments
and provide all benefits required to be made and provided hereunder to the
extent such payments have not been made or such benefits have not been provided
through the above-mentioned trust. (vii) For purposes of this Agreement, a
"Potential Change in Control" shall be deemed to have occurred if
(A) the Company enters into an agreement, the consummation of
which would result in the occurrence of a Change in Control of the
Company;
(B) any person (including the Company) publicly announces an
intention to take or to consider taking actions which if consummated
would constitute a Change in Control of the Company;
(C) any person, other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company, is or
becomes the beneficial owner, directly or indirectly, of securities
of the Company representing ten percent (10%) or more of the combined
voting power of the Company's then outstanding securities; or
(D) the Board of Directors adopts a resolution to the effect
that, for purposes of this Agreement, a Potential Change in Control
of the Company has occurred.
10. (a) Amendment of Agreement
----------------------
No amendment or modification of this Agreement shall be deemed effective
unless and until executed in writing.
(b) No Waiver
---------
No term or condition of this Agreement shall be deemed to have been waived,
nor shall there be any estoppel to enforce any provision of this Agreement,
except by written instrument of the party charged with such waiver or estoppel.
Any written waiver shall not be deemed a continuing waiver unless specifically
stated, shall operate only as to the specific term or condition waived and shall
not constitute a waiver of such term or condition for the future or as to any
act other than that specifically waived.
11. Severability
------------
If for any reason any provision of this Agreement shall be held invalid,
such invalidity shall not affect any other provision of this Agreement not held
so invalid, and all other such provisions shall to the full extent consistent
with law continue in full force and effect. If any such provision shall be held
invalid in part, such invalidity shall in no way affect the rest of such
provision not held so invalid, and the rest of such provision, together with all
other provisions of this Agreement, shall likewise to the full extent consistent
with law continue in full force and effect.
12. Headings
--------
The headings of paragraphs are included solely for convenience of reference
and shall not control the meaning or interpretation of any of the provisions of
this Agreement.
13. Governing Law
-------------
The validity, interpretation, construction, performance and enforcement of
this Agreement shall be governed by the laws of the State of New York without
giving effect to the principles of conflict of laws thereof.
9
14. Parachute Tax
-------------
If the payments and benefits provided for the Executive under this
Agreement, together with any other payments and benefits that the Executive may
have a right to receive from the Company or any other person or entity, would
result in "excess parachute payments" (as defined in Section 280G of the Code),
the payments and benefits to be made and provided to the Executive and his
beneficiary or beneficiaries pursuant to this Agreement shall be reduced to the
largest whole-dollar amount that will result in there being no such "excess
parachute payment." The existence or absence of any such "excess parachute
payment," the amount of any such reduction, and the item or items to be reduced,
if any, shall be determined, in each case, by the Executive or, following his
death, his beneficiary or beneficiaries, and the specifics of such determination
shall be delivered in writing to the Company and to the trustee of the Trust
referred to in subparagraph 9(d)(ii) above, at the time of the Executive's
termination within three years after a Change in Control, or as soon as
practicable thereafter, by the Executive or, following his death, his
beneficiary or beneficiaries. The reasonable fees and expenses of such tax
counsel and financial advisor as may reasonably be called upon to assist the
Executive or his beneficiary or beneficiaries in the foregoing endeavors shall
be paid by the Company.
15. Notices
-------
All notices, requests, demands and other communications provided for by
this Agreement shall be in writing and shall be sufficiently given if and when
mailed in the continental United States by registered or certified mail, return
receipt requested, or personally delivered to the party entitled thereto at the
address stated below, which address shall be such address as the addressee may
have given most recently by a similar notice. Any such notice shall be deemed
to have been received on the date of delivery.
To the Company: Champion International Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Secretary
To the Executive: Xx. Xxxxxx X. XxxXxxxxx, Xx.
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
16. Arbitration
-----------
Any dispute between the Executive and the Company as to the interpretation
or application of any of the provisions of this Agreement may, at the
Executive's election, be determined by binding arbitration within the greater
New York City metropolitan area or the State of Connecticut in accordance with
the rules of the American Arbitration Association then in effect. Judgment may
be entered on the arbitrator's award in any court of competent jurisdiction. All
fees and expenses of such arbitration shall be paid by the Company subject to
repayment by the Executive if and to the extent that a judgment should be
rendered against him beyond appeal and such fees and expenses were not incurred
by him while acting in good faith.
10
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
and its seal to be affixed hereto, and the Executive has signed this Agreement,
all as of October 18, 1990.
CHAMPION INTERNATIONAL CORPORATION
By /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Chairman of the Board of Directors
Attest:
/s/ Xxxxxxxx X. Xxx
--------------------------------
Secretary
/s/ Xxxxxx X. XxxXxxxxx, Xx.
-------------------------------------------
Xxxxxx X. XxxXxxxxx, Xx.
11
Exhibit A
---------
[subparagraph 1(a)(ii)(y)]
Schedule of Certain Benefit Coverages during the
Severance Payment Period under Subparagraph 1(a)(i)
after a Termination following a Change in Control
---------------------------------------------------
` Disability: Same as for active employees.
` Medical: Same as for active employees
less retiree medical benefit,
if any.
` Dental: Same as for active employees.
For other benefit coverages after termination following a Change in
Control, see subparagraph 1(a)(ii)(x) and (z).
oOo
Exhibit B
---------
[subparagraph 3(g)]
Schedule of Payments and Benefits upon
a Breach after Cessation of Employment
--------------------------------------
` Severance: 2 years termination payments (or the unpaid balance
thereof); however, payments not to cover the period, if
any, after the last day of the month next preceeding the
Executive's normal retirement date under the Company's
pension plan. Payments are based on highest total of
salary and annual bonus for any calendar year of
employment.
` Retirement: All unpaid amounts, if any, excess benefit and
supplemental of the Company. payable under the retirement
plans
` Disability: Same as for active employees, termination payment period
or during the 2 year balance thereof.
` Medical: Same as for active employees benefit, if any, during the
2 year payment period or balance less retiree medical
termination thereof.
` Dental: Same as for active employees, termination payment period
or during the 2 year balance thereof.
oOo
Exhibit C
---------
[subparagraph 9(d)]
FORM OF TRUST AGREEMENT
-----------------------
TRUST AGREEMENT (the "Trust"), dated as of February 19, 1987, by and
between Champion International Corporation, a New York corporation (the
"Company"), and Connecticut National Bank (the "Trustee").
WHEREAS, the Company is obligated under the individual agreements set
forth on Exhibit I (together with any additional agreements included on Exhibit
I pursuant to Section 2.01(c) hereof, the "Agreements") to make specified
payments to certain of the Company's executives (together with any additional
executives and retired executives included on Exhibit I pursuant to Section
2.01(c) hereof, the "Executives"); and
WHEREAS, the aforesaid obligations of the Company are not funded or
otherwise secured, and the Company has agreed, to the extent practicable, to
assure that the future payment of certain of said obligations will not be
improperly withheld in the event that a "Change in Control" (as defined herein)
of the Company should occur; and
WHEREAS, for purposes of assuring that such payments will not be
improperly withheld, the Company desires to deposit with the Trustee, subject
only to the claims of the Company's existing or future general creditors in the
event of bankruptcy or insolvency (as hereinafter provided), amounts of cash or
marketable securities sufficient to fund such payments;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for other good and valuable consideration, the parties hereto agree
as follows:
ARTICLE I
THE AGREEMENTS
--------------
SECTION 1.01 Agreements. The agreements subject to this Trust
----------
consist of the Agreements listed from time to time on Exhibit I hereof
respectively. The Company shall continue to be liable to the Executives to make
all payments required under the terms of such Agreements to the extent such
payments have not been made pursuant to this Trust.
ARTICLE II
TRUST AND THE TRUST CORPUS
--------------------------
SECTION 2.01 Trust.
-----
(a) The Company will deliver to the Trustee to be held in trust
hereunder, concurrently with the execution of this Trust, the sum of $100 in
cash, and upon the occurrence of a "Potential Change in Control" (as defined in
Section 3.02), (i) an additional amount in cash (or in marketable securities
having a fair market value equal to such amount, or some combination thereof)
representing the sum of the amounts, determined as provided in Section 4.02,
which is estimated to be sufficient to fund the Company's obligations to pay to
the Executives certain amounts and benefits due to them pursuant to the
Agreements and (ii) an amount estimated by the Trustee to be sufficient to pay
all of the Trustee's fees and expenses hereunder with respect to the period of
time that this Trust Agreement shall be in effect.
(b) The payment by the Company pursuant to Section 2.01(a)(i)
hereof shall be accompanied by a Payment Schedule for each Executive as required
by Section 4.02(a) hereof.
(c) The Company may, subject to the provisions of Section
2.01(d), from time to time prior to the occurrence of a Change in Control revise
Exhibit I in order to include thereon (A) additional Executives, and (B)
additional Agreements
1
with respect to any Executive. If a revised Exhibit I is delivered to the
Trustee with respect to any Executive upon or after the occurrence of a
Potential Change in Control, the Company will deliver to the Trustee,
concurrently with such revised Exhibit I:
(x) a Payment Schedule or a revised Payment Schedule, as
applicable, with respect to such Executive which
complies with Section 4.02(a) and which sets forth the
additional amount delivered to the Trustee with respect
to such Executive, and
(y) an amount which is estimated to be sufficient when
added to the amount or amounts previously delivered to
the Trustee to fund the Company's obligations under the
Payment Schedule or the revised Payment Schedule, as
applicable, pursuant to such Executive's Agreements.
Such Payment Schedule or revised Payment Schedule shall be effective in
accordance with the provisions of Section 4.02(b). A revised Exhibit I shall be
effective upon the later of (C) receipt by Trustee of such revised Exhibit I and
(D) receipt by the Trustee of all amounts required under this Section 2.01(c),
if any, and such revised Exhibit I shall supersede any and all such Exhibits
previously delivered to the Trustee.
(d) In no event may Exhibit I be revised to eliminate any
Executive or any Agreements with respect to any Executive without such
Executive's written consent, except as provided in the following sentence. Prior
to the occurrence of a Change in Control, the Company shall deliver instructions
to the Trustee to delete the name of, and the Agreements with respect to, an
Executive from Exhibit I promptly following the termination of his employment
with the Company prior to the occurrence of a Change in Control. The Trustee
shall make such deletions and shall be able to rely upon such instructions and
shall have no duty to inquire with respect to the termination of such
Executive's employment with the Company. The deletions described in the
immediately preceding sentence may not be made with respect to instructions
delivered to the Trustee on or after the occurrence of a Change in Control of
the Company. Notwithstanding the foregoing, following a Potential Change in
Control the Company may, in its discretion, add retired Executives and their
agreements with the Company to Exhibit I in accordance with Section 2.01(c) to
assure that the payment of certain amounts payable by the Company to such
retired Executives under such agreements will not be improperly withheld
following a Change in Control.
SECTION 2.02 Trust Corpus.
------------
(a) As used herein, the term "Trust Corpus" shall mean the
amounts delivered to the Trustee as described in Section 2.01 and 4.02(b) hereof
in whatever form held or invested as provided herein. The Trust Corpus shall be
held, invested and reinvested by the Trustee in cash or marketable securities
only in accordance with this Section 2.02. The Trustee shall use its good faith
efforts to invest or reinvest from time to time all or such part of the Trust
Corpus as it believes prudent under the circumstances in either one or a
combination of the following investments:
(i) investments in direct obligations of the United
States of America or agencies of the United States of America
or obligations unconditionally and fully guaranteed as to
principal and interest by the United States of America, in each
case maturing within one year or less from the date of
acquisition; or
2
(ii) investments in negotiable certificates of
deposit (in each case maturing within one (1) year or less from
the date of acquisition) issued by a commercial bank organized
and existing under the laws of the United States of America or
any state thereof having a combined capital and surplus of at
least $1,000,000,000, including the Trustee's banking
department;
provided, however, that the Trustee shall not be liable for any failure to
-----------------
maximize the income earned on that portion of the Trust Corpus as is from time
to time invested or reinvested as set forth above, nor for any loss of income
due to liquidation of any investment which the Trustee, in its sole discretion,
believes necessary to make payments or to reimburse expenses under the terms of
this Trust.
(b) The Trust is intended to be grantor trust within the meaning
of Section 671 of the Internal Revenue Code of 1986, as amended (the "Code"),
except as hereinafter provided, all interest and other income earned on the
investment of the Trust Corpus shall be the property of the Company and shall
not constitute a part of the Trust Corpus. Except as provided in Section
4.02(a), the interest and other income earned in any calendar quarter shall be
paid over to the Company by the Trustee as promptly as practicable after the end
of such calendar quarter.
(c) All losses of principal in respect of, and expenses
(including, as provided in Section 5.01(g) hereof, any expenses of the Trustee)
charged against, the Trust Corpus shall be for the account of the Company and
the Company shall be obligated to promptly reimburse the Trust Corpus for any
loss in principal amount of, or expense charged against, the Trust Corpus except
to the extent that such amounts have been applied to reduce amounts payable to
the Company pursuant to Section 2.02(b) hereof. To the extent any such losses
and expenses are not reimbursed by the Company, the aggregate amount payable to
an Executive under the applicable Payment Schedule shall be reduced by a portion
of such losses and expenses, as determined on a pro rata basis.
ARTICLE III
CHANGE IN CONTROL
-----------------
SECTION 3.01 Definition of Change in Control.
-------------------------------
For purposes of this Trust, a Change in Control of the Company shall be deemed
to have occurred if
(a) any "person" (as defined in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), other than a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing thirty percent (30%) or more of the combined voting power of the
Company's then outstanding securities;
(b) during any period within two (2) consecutive years (not
including any period prior to the Company's 1987 Annual Meeting of Shareholders)
there shall cease to be a majority of the Board of Directors comprised as
follows: individuals who at the beginning of such period constitute the Board of
Directors and any new director(s) whose election by the Board of Directors or
nomination for election by the Company's shareholders was approved by a vote of
at least two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved; or
3
(c) the shareholders of the Company approve (i) a plan of
complete liquidation of the Company or (ii) the sale or other disposition of all
or substantially all the Company's assets.
SECTION 3.02 Definition of a Potential Change in Control. For
-------------------------------------------
purposes of this Trust, a Potential Change in Control shall be deemed to have
occurred if
(a) the Company enters into an agreement, the consummation of
which would result in the occurrence of a Change in Control of the Company;
(b) any person (including the Company) publicly announces an
intention to take or to consider taking actions which if consummated would
constitute a Change in Control of the Company;
(c) any person, other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company, is or becomes the
beneficial owner, directly or indirectly, of securities of the Company
representing ten percent (10%) or more of the combined voting power of the
Company's then outstanding securities; or
(d) the Board of Directors adopts a resolution to the effect
that, for purposes of this Agreement, a Potential Change in Control of the
Company has occurred.
SECTION 3.03 Notification of the Trustee. The Company shall notify
---------------------------
the Trustee of the occurrence of a Potential Change in Control and the Company
shall or an Executive may notify the Trustee of the occurrence of a Change in
Control, and the Trustee may rely on such notice or on any other actual notice,
satisfactory to the Trustee, of such a change or potential change which the
Trustee may receive. The Trustee shall have no obligation to make an
independent determination as to the occurrence of a Potential Change in Control
or Change in Control.
ARTICLE IV
RELEASE OF THE TRUST CORPUS
---------------------------
The Trustee shall hold the Trust Corpus in its possession under the
provisions of this Trust Agreement until authorized to deliver the Trust Corpus
or any specified portion thereof as follows:
SECTION 4.01 Delivery to the Company.
-----------------------
(a) Any amount in excess of $100 delivered to the Trustee
pursuant to Section 2.01 hereof or otherwise constituting part of the Trust
Corpus shall be returned to the Company, unless within six (6) months of such
delivery to the Trustee a Change in Control shall have occurred. Such six month
period shall be renewed (i) for any Potential Change in Control which occurs
during any initial six month period or (ii) by a resolution adopted by the Board
of Directors and delivered to the Trustee by the Company to the effect that such
an initial six month period (or a six month period that is renewed in accordance
with clause (i) of this Section 4.01(a)) shall start anew.
(b) Any amount held by the Trustee for the benefit of an
Executive shall be paid to the Company immediately following the final payment
of all amounts payable to such Executive pursuant to the terms of the
Executive's Agreement, as certified to the Trustee by the Executive.
(c) Upon the termination of the Trust as provided in the first
sentence of Section 6.01(a), the Trustee shall pay to the Company the amount of
the Trust Corpus, less all payments, expenses, taxes and other charges under
this Trust Agreement as of such date of termination, provided that in the event
that the Trust shall continue with respect to one or more Executives in
accordance with the provisions of Section 6.01(b), the Trustee shall pay to the
Company the amount that would have been payable to the Company if the Trust had
terminated as provided in Section 6.01(a), less (i) the amounts subject to
litigation or arbitration for each such Executive, as certified to the Trustee
by each such Executive, and (ii) an amount
4
estimated by the Trustee to be sufficient to pay all of the Trustee's fees and
expenses with respect to the additional period of time that the Trust shall
continue in effect pursuant to Section 6.01(b).
SECTION 4.02 Deliveries to Executives.
------------------------
(a) The Company shall deliver to the Trustee, upon the
occurrence of a Potential Change in Control, a separate schedule for each
Executive (the "Payment Schedule') indicating (x) the amounts delivered to the
Trustee for the benefit of each such Executive pursuant to Section 2.01(a)(i) in
accordance with such Executive's Agreements and (y) the amounts payable in
respect of such Executive, or providing a formula or instructions acceptable to
the Trustee for determining the amounts so payable. The Payment Schedule shall
include instructions as to the amount of interest, if any, accruing in respect
of an Executive and such instructions may be revised from time to time prior to
the occurrence of a Change in Control. Each Payment Schedule also shall be
delivered by the Company to such Executive. The aggregate payment to be made
hereunder to an Executive by the Trustee shall not exceed the aggregate amount
delivered to the Trustee for the benefit of such Executive as indicated in the
Payment Schedule applicable to such Executive. The Trustee shall make payments
to each Executive under the Payment Schedule applicable to such Executive upon
receipt by the Trustee of a written request for payment signed by the Executive
or, following his death, his beneficiary or beneficiaries. Such request shall
set forth each of the following items: (i) the specific amount of payment
requested, (ii) the specific Agreement or Agreements and the specific section or
sections of such Agreements under which such payment is to be made, (iii) the
existence or absence of any "excess parachute payment" (as defined in Section
280G of the Code) respecting the amount payable to such Executive in accordance
with the applicable Payment Schedule and (iv) the amount of any reduction in the
amount otherwise payable to such Executive in accordance with the applicable
Payment Schedule and the item or items to be reduced, if any. The Trustee shall
rely upon such written request in making payments under the Payment Schedule and
shall have no duty to inquire into the amounts, instructions or formulas set
forth in the Payment Schedule or the Executive's right to such payments.
(b) The Company may from time to time after the occurrence of a
Potential Change in Control deliver concurrently to the Trustee (i) a revised
Payment Schedule with respect to any Executive which sets forth the aggregate
amounts payable with respect to such Executive and (ii) an amount which is
estimated to be sufficient when added to the amount or amounts previously
delivered to the Trustee to fund the Company's obligations pursuant to such
Executive's Agreements. A revised Payment Schedule shall be effective upon the
later of (x) receipt by the Trustee of such revised Payment Schedule and (y)
receipt by the Trustee of all amounts required under Section 4.02(b)(ii) and
such revised Payment Schedule shall supersede any and all Payment Schedules
previously delivered by the Company to the Trustee with respect to such
Executive.
(c) Except as provided in this Section 4.02(c), a revised
Payment Schedule may not reduce the amounts payable with respect to an Executive
pursuant to the prior Payment Schedule for such Executive except with the
written consent of such Executive.
(i) After a Potential Change in Control and before a Change in
Control, the Company shall deliver to the Trustee, promptly
following the termination of an Executive's employment with the
Company, a revised Payment Schedule with respect to such
Executive which deletes all of the amounts set forth on the prior
Payment Schedule for such Executive. The Trustee may rely
5
upon such revised Payment Schedule and shall have no duty to
inquire with respect to the termination of such Executive's
employment with the Company. The Trustee shall return to the
Company all amounts previously delivered by the Company to the
Trustee for the benefit of such Executive. Notwithstanding the
foregoing, following a Potential Change in Control the Company
may, in its discretion, deliver Payment Schedules for retired
Executives in accordance with Section 4.02(a) hereof.
(ii) After a Potential Change in Control and before a Change in
Control, the Company may deliver a revised Payment Schedule with
respect to an Executive which reduces the amounts payable in
respect of such Executive pursuant to his prior Payment Schedule
as the result of a more accurate calculation by the Company of
the amount of the benefits to which such Executive is entitled
pursuant to his Agreements. The Trustee may rely on such revised
Payment Schedule and shall have no duty to inquire with respect
to said calculation. The Trustee shall return to the Company an
amount equal to such reduction.
A revised Payment Schedule of the type described in this Section 4.02(c) may not
be delivered to, or honored by, the Trustee on or after the occurrence of a
Change in Control of the Company. A revised Payment Schedule shall be effective
upon its receipt by the Trustee and shall supersede any and all Payment
Schedules previously delivered by the Company to the Trustee with respect to
such Executive.
(d) The Trustee shall be permitted to withhold from any payment
due to an Executive hereunder the amount required by law to be so withheld under
federal, state and local withholding requirements or otherwise, and shall pay
over to the appropriate government authority the amounts so withheld. The
Trustee may rely on instructions from the Company as to any required withholding
and shall be fully protected under Section 5.01(g) hereof in relying on such
instructions.
(e) Except as otherwise provided herein, in the event of any
final determination by the Internal Revenue Service or a court of competent
jurisdiction, which determination is not appealable or the time for appeal or
protest of which has expired, or the receipt by the Trustee of a substantially
unqualified opinion of tax counsel selected by the Trustee with the written
consent of the Company, which determination determines, or which opinion
concludes, that the Executives or any particular Executive, is subject to
federal income taxation on amounts held in Trust hereunder prior to the
distribution to the Executives or Executive of such amounts, the Trustee shall,
on receipt by the Trustee of such opinion or notice of such determination, pay
to each Executive the portion of the Trust Corpus includible in such Executive's
federal gross income.
SECTION 4.03 Deliveries to Creditors of the Company. It is the
--------------------------------------
intent of the parties hereto that the Trust Corpus is and shall remain at all
times subject to the claims of the general creditors of the Company in the event
of bankruptcy or insolvency as hereinafter provided, but in no other event.
Accordingly, the Company shall not create a security interest in the Trust
Corpus in favor of the Executives or any creditor. If the Trustee receives the
notice provided for in Section 4.04 hereof, or otherwise receives actual notice
that the Company is insolvent or bankrupt as defined in Section 4.04 hereof, the
Trustee will make no further distributions of the Trust Corpus to any of the
Executives but will deliver the entire amount of the Trust Corpus only as a
court of competent jurisdiction, or duly appointed receiver or other person
authorized to act by such a court, may direct to make the Trust Corpus available
to satisfy the claims of the Company's general creditors. The Trustee shall
resume
6
holding the Trust Corpus under the terms hereof and resume any distribution of
Trust Corpus to the Executives under the terms hereof, upon no less than thirty
(30) days advance notice to the Company, if it determines that the Company was
not, or is no longer, bankrupt or insolvent. Unless the Trustee has actual
knowledge of the Company's bankruptcy or insolvency, the Trustee shall have no
duty to inquire whether the Company is bankrupt or insolvent.
SECTION 4.04 Notification of Bankruptcy or Insolvency. The Company,
----------------------------------------
through its Board of Directors and Chief Executive Officer, shall advise the
Trustee promptly in writing of the Company's bankruptcy or insolvency. The
Company shall be deemed to be bankrupt or insolvent in the following
circumstances:
(a) The Company is subject to a pending proceeding as a debtor under
the Bankruptcy Reform Act of 1978, as amended; or
(b) The Company shall generally not pay its debts as such debts
become due or shall cease to pay its debts in the ordinary course of business.
ARTICLE V
TRUSTEE
-------
SECTION 5.01 Trustee.
-------
(a) The duties and responsibilities of the Trustee shall be
limited to those expressly set forth in this Trust, and no implied covenants or
obligations shall be read into this Trust against the Trustee.
(b) If all or any part of the Trust Corpus is at any time
attached, garnished, or levied upon by any court order, or in case the payment,
assignment, transfer, conveyance or delivery of any such property shall be
stayed or enjoined by any court order, or in case any order, judgment or decree
shall be made or entered by a court affecting such property or any part thereof,
then and in any of such events the Trustee is authorized, in its sole
discretion, to rely upon and comply with any such order, judgment or decree, and
it shall not be liable to the Company or any Executive by reason of such
compliance even though such order, judgment or decree subsequently may be
reversed, modified, annulled, set aside or vacated.
(c) The Trustee shall maintain such books, records and accounts
as may be necessary for the proper administration of the Trust Corpus,
including, without limitation, as provided in Article II hereof, and shall
render to the Company, on or prior to each January 31 following the date of this
Trust until the termination of this Trust (and on the date of such termination),
an accounting with respect to the Trust Corpus as of the end of the then most
recent calendar year (and as of the date of such termination). The Trustee will
at all times maintain a separate bookkeeping account for each Executive to which
it will credit each amount delivered by the Company to the Trustee with respect
to such Executive. Upon the written request of an Executive or the Company, the
Trustee shall deliver to such Executive or the Company, as the case may be, a
written report setting forth the amount held in the Trust for such Executive (or
each Executive if such request is made by the Company) and a record of the
deposits made with respect thereto by the Company. Unless the Company or any
Executive shall have filed with the Trustee written exceptions or objections to
any such statement and account within one hundred eighty (180) days after
receipt thereof, the Company or the Executive shall be deemed to have approved
such statement and account, and in such case the Trustee shall be forever
released and discharged with respect to all matters and things reported in such
statement and account as though it had been settled by a decree of a court of
competent jurisdiction in an action or proceeding to which the Company and the
Executive were parties.
(d) The Trustee shall not be liable for any act taken or omitted
to be taken hereunder if taken or omitted to be taken by it in good faith,
absent the gross
7
negligence or wilful misconduct of the Trustee. The Trustee shall also be fully
protected in relying upon any notice given hereunder which it in good faith
believes to be genuine and executed and delivered in accordance with this Trust.
(e) The Trustee may consult with legal counsel to be selected by
it, and the Trustee shall not be liable for any action taken or suffered by it
in accordance with the advice of such counsel.
(f) The Trustee shall be reimbursed by the Company for its
reasonable expenses incurred in connection with the performance of its duties
hereunder and shall be paid reasonable fees for the performance of such duties
in the manner provided by paragraph (g) of this Section 5.01.
(g) The Company agrees to indemnify and hold harmless the
Trustee from and against any and all damages, losses, claims or expenses as
incurred (including expenses of investigation and fees and disbursements of
counsel to the Trustee and any taxes imposed on the Trust Corpus or income of
the Trust) arising out of or in connection with the performance by the Trustee
of its duties hereunder, other than such damages, losses, claims or expenses
arising out of the Trustee's gross negligence or wilful misconduct. Any amount
payable to the Trustee under paragraph (f) of this Section 5.01 or this
paragraph (g) shall be paid by the Company promptly upon demand therefor by the
Trustee or, in the event that the Company fails to make such payment, from the
Trust Corpus. In the event that payment is made hereunder to the Trustee from
the Trust Corpus, the Trustee shall promptly notify the Company in writing of
the amount of such payment. The Company agrees that, upon receipt of such
notice, it will deliver to the Trustee to be held in the Trust an amount in cash
(or in marketable securities or in some combination thereof) equal to any
payments made from the Trust Corpus to the Trustee pursuant to paragraph (f) of
this Section 5.01 or this paragraph (g). The failure of the Company to transfer
any such amount shall not in any way impair the Trustee's right to
indemnification, reimbursement and payment pursuant to paragraph (f) of this
Section 5.01 or this paragraph (g).
SECTION 5.02 Successor Trustee. The Trustee may resign and be
-----------------
discharged from its duties hereunder at any time by giving notice in writing of
such resignation to the Company and each Executive specifying a date (not less
than thirty (30) days after the giving of such notice) when such resignation
shall take effect. Promptly after such notice, the Company (or, if a Change in
Control shall previously have occurred, Executive(s) having at least 65%
percent of all amounts then held in the Trust credited to their accounts shall
appoint a successor trustee, such trustee to become Trustee hereunder upon the
resignation date specified in such notice. If the Company fails to appoint a
successor trustee or if such Executive(s) are unable to so agree upon a
successor trustee within thirty (30) days after such notice, the Trustee shall
be entitled, at the expense of the Company, to petition a United States
District Court or any of the courts of the State of New York having
jurisdiction to appoint its successor. The Trustee shall continue to serve
until its successor accepts the trust and receives delivery of the Trust
Corpus. The Company (or, if a Change in Control shall previously have
occurred, Executive(s) having at least 65% percent of all amounts then held in
the Trust credited to their accounts) may at any time substitute a new trustee
by giving fifteen (15) days notice thereof to the Trustee then acting. In the
event of such removal or resignation, the Trustee shall duly file with the
Company and, on and after a Change in Control, the Executives a written
statement or statements of accounts and proceedings as provided in Section
5.01(c) hereof for the period since the last previous annual accounting of the
Trust, and if written objection to such account is not filed as provided in
Section 5.01(c) hereof, the Trustee shall to the maximum extent
8
permitted by applicable law be forever released and discharged from all
liability and accountability with respect to the propriety of its acts and
transactions shown in such account. The Trustee and any successor thereto
appointed hereunder shall be a commercial bank which is not an affiliate of the
Company, but which is a national banking association or established under the
laws of one of the states of the United States, and which has equity in excess
of $100 million.
SECTION 5.03 Settlement of Accounts. Notwithstanding any other
----------------------
provision of this Agreement, in the event of the termination of the Trust, or
the resignation or discharge of the Trustee, the Trustee shall have the right
to a settlement of its accounts, which accounting may be made, at the option of
the Trustee, either (a) by a judicial settlement in a court of competent
jurisdiction; or (b) by agreement of settlement, release and indemnity from the
Company to the Trustee.
ARTICLE VI
TERMINATION, AMENDMENT AND WAIVER
---------------------------------
SECTION 6.01 Termination.
-----------
(a) Except as provided in Section 6.01(b) of this Agreement,
this Trust shall terminate forty-two months after the occurrence of a Change in
Control, or, if earlier, upon the earliest of either of the following events:
(i) the exhaustion of the Trust Corpus; or (ii) the final payment of all amounts
payable to all of the Executives pursuant to the Agreements, as certified to the
Trustee by each Executive. Promptly upon termination of this Trust, any
remaining portion of the Trust Corpus, less all payments, expenses, taxes and
other charges under this Trust Agreement as of such date of termination, shall
be paid to the Company.
(b) Notwithstanding any other provision of this Agreement, in
the situation where the payments under an Executive's Agreements are the
subject of litigation or arbitration, and if the Trust Corpus has not been
exhausted with respect to such Executive, the Trust shall not terminate and the
funds held in the Trust with respect to such Executive shall continue to be
held by the Trustee until the final resolution of such litigation or
arbitration. The Trustee may assume that no Agreement of an Executive is the
subject of such litigation or arbitration unless the Trustee receives written
notice from an Executive or the Company with respect to such litigation or
arbitration. The Trustee may rely upon written notice from an Executive as to
the final resolution of such litigation or arbitration. Following such final
resolution, the Trust shall terminate with respect to each Executive described
in this Section 6.01(b) upon the earliest of either of the following events:
(i) the exhaustion of the Trust Corpus held by the Trustee with respect to such
Executive; or (ii) the final payment of all amounts payable to the Executive
pursuant to such Executive's Agreements, as certified to the Trustee by such
Executive. Promptly upon termination of this Trust with respect to an Executive
described in Section 6.01(b), any remaining portion of the Trust Corpus held by
the Trustee with respect to such Executive shall be paid to the Company. At
such time as the Trust shall be terminated with respect to all such Executives,
the Trust Corpus, less all payments, expenses, taxes and other charges
attributable to the extension of the Trust term beyond the termination date
described in Section 6.01(a), shall be paid promptly to the Company.
SECTION 6.02 Amendment and Waiver. Except as provided in Sections
--------------------
2.01(c),(d) and 4.02(b),(c), this Trust may not be amended except by an
instrument in writing signed on behalf of the parties hereto together with the
written consent of Executives having at least 65% of all amounts then held in
the Trust credited to their accounts. The parties hereto, together with the
consent of Executives having at least 65% of all amounts then held in the Trust
credited to their accounts,
9
may at any time waive compliance with any of the agreements or conditions
contained herein. Any agreement on the part of a party hereto or an Executive
to any such waiver shall be valid if set forth in an instrument in writing
signed on behalf of such party or Executive. This Trust may not be amended nor
may compliance with any provisions hereunder be waived except by an instrument
in writing signed on behalf of the parties hereto and by at least seventy-five
percent (75%) of the Executives in the situation where, prior to such amendment
or waiver, no payment has been made by the Company pursuant to Section
2.01(a)(i) that is then held by the Trustee. Notwithstanding the foregoing, any
such amendment or waiver may be made prior to a Change in Control by written
agreement of the parties hereto without obtaining the consent of the Executives
if such amendment or waiver does not adversely affect the rights of the
Executives hereunder. Except as provided in Sections 2.01(c),(d) and
4.02(b),(c), no amendment or waiver relating to this Trust may be made (i) with
respect to the amount of funds to be delivered by the Company to the Trustee
with respect to an Executive or by the Trustee to such Executive, or the timing
of such deliveries or (ii) which amends Section 6.01, unless such Executive, in
the case of clause (i) or, all Executives in the case of clause (ii), agree in
writing to such amendment or waiver.
ARTICLE VII
GENERAL PROVISIONS
------------------
SECTION 7.01 Further Assurances. The Company shall, at any time and
------------------
from time to time, upon the reasonable request of the Trustee, execute and
deliver such further instruments and do such further acts as may be necessary or
proper to effectuate the purposes of this Trust.
SECTION 7.02 Certain Provisions Relating to this Trust. (a) This
-----------------------------------------
Trust sets forth the entire understanding of the parties with respect to the
subject matter hereof and supersedes any and all prior agreements, arrangements
and understandings relating thereto. This Trust shall be binding upon and inure
to the benefit of the parties and their respective successors and legal
representatives.
(b) If by the end of the eight-month period following the date
hereof, or such later date as the Company and the Trustee shall agree, counsel
is unable to deliver to the Company a favorable opinion that is satisfactory to
the Company, substantially to the effect that
(i) the Company will be treated as the owner of the Trust
under Section 677 of the Code and Section 1.677(a)-1(d) of the
regulations. Under Section 671, the Company must include all of
the income, deductions and credits against tax of the Trust in
computing its own taxable income and credits, and
(ii) the transfer of assets to the Trust will not constitute a
transfer of property for purposes of Section 83 of the Code or
Section 1.83-3(e) of the regulations, and
(iii) under Section 451 of the Code, amounts will be includible
in the gross income of the Executives only in the taxable year or
years in which such amounts are actually distributed or made
available by the Trustee,
the Trust shall immediately terminate and the amount of the Trust Corpus, less
all payments, expenses, taxes and other charges under this Trust Agreement, if
any, as of such date, shall be returned to the Company as soon as possible.
Upon termination of the Trust, the Executives shall have no rights under this
Trust Agreement.
(c) This Trust shall be governed by and construed in accordance
with the laws of the State of New York, other than and without reference to any
10
provisions of such laws regarding choice of laws or conflict of laws.
(d) In the event that any provision of this Trust or the
application thereof to any person or circumstances shall be determined by a
court of proper jurisdiction to be invalid or unenforceable to any extent, the
remainder of this Trust, or the application of such provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each provision of this Trust shall be valid
and enforced to the fullest extent permitted by law.
(e) The article and section headings contained in this Agreement
are solely for the purpose of reference, are not part of the agreement of the
parties and shall not in any way affect the meaning or interpretation of this
Agreement.
SECTION 7.03 Alienation. The right of any Trust Beneficiary (as
----------
hereinafter defined) to any benefit or to any payment hereunder shall not be
subject to alienation or assignment.
SECTION 7.04 Arbitration. Any dispute between the Executives and
-----------
the Company or the Trustee as to the interpretation or application of the
provisions of this Trust and amounts payable hereunder may, at the election of
any party to such dispute (or, if more than one (1) Executive is such a party,
at the election of seventy-five percent (75%) of such Executives), be determined
by binding arbitration within the greater New York City metropolitan area or the
State of Connecticut in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator's award
in any court of competent jurisdiction. All fees and expenses of such
arbitration shall be paid by the Trustee and considered an expense of the Trust
under Section 5.01(g).
SECTION 7.05 Notices. Any notice, report, demand or waiver required
-------
or permitted hereunder shall be in writing and shall be given personally or by
prepaid registered or certified mail, return receipt requested, addressed as
follows:
If to the Company: Champion International Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Secretary
If to the Trustee: Connecticut National Bank
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Employee Benefits
Administration - MSN 215
If to an Executive, to the address of such Executive as listed next to his name
on Exhibit I hereto.
A notice shall be deemed received upon the date of delivery if given
personally or, if given by mail, upon the receipt thereof. A change of address
may be given by any party to another by similar notice.
SECTION 7.06 Trust Beneficiaries. Each Executive is an intended
-------------------
beneficiary ("Trust Beneficiary") under this Trust, and as a Trust Beneficiary
shall be entitled to enforce all terms and provisions hereof with the same force
and effect as if such person had been a party hereto. The term Trust
Beneficiary shall, to the extent provided in the Agreements respecting a
deceased Executive, also mean the legal representative of the estate of such
deceased Executive and the surviving spouse of the deceased Executive or
beneficiary designated by such Executive in accordance with the terms of such
Agreements.
11
IN WITNESS WHEREOF, the parties have executed this Trust as of the
date first written above.
CHAMPION INTERNATIONALCORPORATION
By /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
CONNECTICUT NATIONAL BANK
By /s/ Xxxxxx X. Xxxxxxxx, Xx.
------------------------------------------
Xxxxxx X. Xxxxxxxx, Xx.
Executive Vice-President
12
Exhibit I
AGREEMENTS BETWEEN CHAMPION INTERNATIONAL
CORPORATION AND CERTAIN EXECUTIVES
Name and Address Title Date of Agreement
---------------- ----- -----------------
Xx. Xxxx X. Xxxx Senior Vice President February 19, 1987:
One Champion Plaza -Restated Agreement /1/
Xxxxxxxx, XX 00000 -Agreement Relating to Legal
Expenses
Xx. Xxxxxx X. Xxxxxx Senior Vice President -February 19, 1987:
One Champion Plaza Finance -Restated Agreement /1/
Xxxxxxxx, XX 00000 -Agreement Relating to Legal
Expenses
Xx. Xxxxxxx X. Xxxxxxxxxx Executive Vice President February 19, 1987:
One Champion Plaza -Agreement /2/
Xxxxxxxx, XX 00000 -Agreement Relating to Legal
Expenses
Xx. Xxxx X. Xxxxxx, Xx. Executive Vice President February 19, 1987:
One Champion Plaza -Agreement /2/
Xxxxxxxx, XX 00000 -Agreement Relating to Legal
Expenses
Xx. Xxxxxx X. Xxxxxx Senior Vice President February 19, 1987:
One Champion Plaza and General Counsel -Agreement /2/
Xxxxxxxx, XX 00000 -Agreement Relating to Legal
Expenses
Xx. X. X. Xxxxx President and Chief August 18, 1988:
One Champion Plaza Operating Officer -Agreement
Xxxxxxxx, XX 00000 -Agreement Relating to Legal
Expenses
Mr. Kenwood X. Xxxxxxx Vice Chairman February 19, 1987:
One Champion Plaza -Agreement /2/
Xxxxxxxx, XX 00000 -Agreement Relating to Legal
Expenses
Xx. Xxxxxxx X. Xxxxx Executive Vice President August 18, 1988:
Xxx Xxxxxxxx Xxxxx -Xxxxxxxxx
Xxxxxxxx, XX 00000 -Agreement Relating to Legal
Expenses
Xx. Xxxxxx X. Xxxxxx
One Champion Plaza Chairman and Chief February 19, 1987:
Xxxxxxxx, XX 00000 Executive Officer -Restated Agreement /1/
-Agreement Relating to Legal
Expenses /3/
_________________________
/1/ As Amended April 21, 1988 and August 18, 1988
/2/ As Amended April 21, 1988
/3/ As Amended August 18, 1988
AMENDMENT TO
TRUST AGREEMENT DATED AS OF
FEBRUARY 19, 1987 BETWEEN CHAMPION
INTERNATIONAL CORPORATION AND CONNECTICUT NATIONAL BANK
-------------------------------------------------------
This Amendment between Champion International Corporation, a New York
corporation (the "Company"), and Connecticut National Bank (the "Trustee") is
effective as of August 18, 1988 and amends the Trust Agreement dated as of
February 19, 1987 between the Company and the Trustee (the "Trust").
WHEREAS, the Company and the Trustee have entered into the Trust; and
WHEREAS, the Company and the Trustee wish to amend the Trust in order to
(1) ensure that it is in compliance with the rule against perpetuities and with
applicable restraints on alienation, and (2) clarify the circumstances in which
interest earned
on the investment of Trust Corpus may be paid to the Executives; and
WHEREAS, all of the Executives have agreed in writing to this Amendment as
required by Section 6.02 of the Trust;
NOW, THEREFORE, it is hereby agreed by and between the parties as follows:
1. Section 4.01 of the Trust is hereby amended by adding a new
subsection (d) thereto, as follows:
"(d) Notwithstanding any provision of this Agreement, upon termination
of the Trust as provided in Section 6.01(c) the Trustee shall pay to the Company
all amounts held hereunder."
2. The second, third and fourth sentences of Section 4.02(a) of the
Trust are hereby amended in their entirety to read as follows:
"Each Payment Schedule also shall be delivered by the Company to
such Executive. The Payment Schedule shall include instructions
as to the amount of interest (if any) to accrue for the benefit
of an Executive, from the date on which the Trustee receives a
written request for payment signed by the Executive (or his
beneficiary or beneficiaries) as hereinafter provided until the
date on which such payment is made, in respect of such payment;
such instructions may be revised from time to time prior to the
occurrence of a Change in Control. The aggregate payment to be
made hereunder to an Executive by the Trustee shall not exceed
the aggregate amount delivered to the Trustee for the benefit of
such Executive, plus interest (if any) thereon as described in
the immediately preceding sentence, all as indicated in the
Payment Schedule applicable to such Executive."
3. Subsection (a) of Section 6.01 of the Trust is hereby amended to
delete the first nine words thereof (i.e., "Except as provided in Section
6.01(b) of this Agreement,") and to substitute the following therefor: "Except
as provided in Sections 6.01(b) and 6.01(c) of this Agreement,".
4. Subsection (b) of Section 6.01 of the Trust is hereby amended to
delete the first seven words thereof (i.e., "Notwithstanding any other provision
of this Agreement,") and to substitute the following therefor: Notwithstanding
any other provision of this Agreement except Section 6.01(c),".
5. Section 6.01 of the Trust is hereby amended by adding a new
subsection (c) thereto, as follows:
"(c) Notwithstanding any other provision of this
Agreement, this Trust shall terminate in all events and under all
circumstances not later than twenty-one years after the death of
the last survivor of the Executives who were included on Exhibit
I hereto at the time this Trust was executed, such Executives
being Xxxx X. Xxxx, Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxxxxx,
Xxxxxx X. Xxxx, Xxxx X. Xxxxxx, Xx., Xxxxxx X. Xxxxxx, Xxxxxx
Xxxxxxxx, X. X. Xxxxx, Xxxxxx X. Xxxxxxxx, Kenwood X. Xxxxxxx,
Xxxxxx X. X'Xxxxxxx and Xxxxxx X. Xxxxxx. Promptly upon
termination of this Trust pursuant to this Section 6.01(c), the
Trustee shall pay to the Company all amounts held hereunder."
6. All capitalized terms used herein and not defined herein shall
have the meanings assigned to them in the Trust.
7. Except as amended hereby, all of the provisions of the Trust shall
continue in full force and effect without change.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
CHAMPION INTERNATIONAL CORPORATION
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------------
Chairman and Chief Executive Officer
CONNECTICUT NATIONAL BANK
By /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------------------------
Xxxxxx X. Xxxxxxxxxx
AGREED TO:
/s/ Xxxx X. Xxxx /s/ Xxxxxx Xxxxxxxx
--------------------------- --------------------------------------
Xxxx X. Xxxx Xxxxxx Xxxxxxxx
/s/ Xxxxxx X. Xxxxxx /s/ X. X. Xxxxx
--------------------------- --------------------------------------
Xxxxxx X. Xxxxxx X.X. Xxxxx
/s/ Xxxxxxx X. Xxxxxxxxxx /s/ Kenwood X. Xxxxxxx
--------------------------- --------------------------------------
Xxxxxxx X. Xxxxxxxxxx Kenwood X. Xxxxxxx
/s/ Xxxxxx X. Xxxx /s/ Xxxxxx X. X'Xxxxxxx
--------------------------- --------------------------------------
Xxxxxx X. Xxxx Xxxxxx X. X'Xxxxxxx
/s/ Xxxx X. Xxxxxx, Xx. /s/ Xxxxxxx X. Xxxxx
--------------------------- --------------------------------------
Xxxx X. Xxxxxx, Xx. Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
--------------------------- --------------------------------------
Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxxx
2
Exhibit D
---------
[subparagraph 9(d)]
Schedule of Amounts to be Deposited in Trust
Upon a Potential Change in Control*
--------------------------------------------
` Severance: 2 years termination payments; however, payments not to cover
the period, if any, after the last day of the month next
preceding the Executive's normal retirement date under the
Company's pension plan. Payments are based on highest total
of salary and annual bonus for any calendar year of
employment.
` Retirement: All amounts, if any, payable under the excess benefit and
supplemental retirement plans of the Company.
` Disability: Same as for active employees, for the 2 year termination
payment period (or balance thereof).
` Medical: Same as for active employees less retiree medical benefit,
if any, for the 2 year termination payment period (or
balance thereof).
` Dental: Same as for active employees, for the 2 year termination
payment period (or balance thereof).
` Options: Fund for those options referred to in subparagraph 1(a)(iii)
hereof. "Spread" to be calculated on the basis of the
closing price of Common Shares of the Company as reported in
"New York Stock Exchange Composite Transactions" of the
Eastern Edition of The Wall Street Journal for the trading
-----------------------
day immediately after the Potential Change in Control.
` Contingently
Credited Shares: Fund for those contingently credited shares referred to in
subparagraph 1(a)(iii) hereof in an amount per share equal
to the closing price of Common Shares of the Company as
reported in "New York Stock Exchange Composite Transactions"
of the Eastern Edition of The Wall Street Journal for the
-----------------------
trading day immediately after the Potential Change in
Control.
` Legal Expenses: An amount equal to twelve times the monthly base salary paid
at time of deposit into trust.
________________
* This Exhibit D does not reflect the possible reduction provided for in
subparagraph 9(d)(v) hereof.
oOo
