EXHIBIT 10.9(B)
March 1, 1995
Fort Howard Corporation
Management Equity Plan
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The Management Investors Committee of the Fort Howard Corporation
Management Equity Plan (the "Plan") hereby amends, effective as of March 1,
1995 (the "1995 MEP Amendment"), the provisions of the Plan as follows:
1. Section 1.2 is amended by deleting the definition of "Fair
Market Value" and by substituting the following therefor:
""Fair Market Value" means, on any given date, the closing
price of the shares of Common Stock, as reported on the
NASDAQ/National Market System for such date or such national
securities exchange as may be designated by the Committee or, if
Common Stock was not traded on such date, on the next preceding
day on which Common Stock was traded."
2. Section 1.2 is amended by deleting the definition of
"Stockholders Agreement" and by substituting the following therefor:
""Stockholders Agreement" means the Stockholders Agreement
dated as of March 1, 1995, among the Company and the other parties
thereto, as amended from time to time."
3. Section 1.2 is amended by deleting (i) the definition of
"Transfer Restriction Period" and (ii) all definitions that are used
solely in Sections 6.1, 6.2, 6.3, 6.4, 6.5 and 6.6 (as in effect prior
to the amendments set forth herein).
4. The first sentence of Section 2.3 is amended in its entirety
to read as follows:
"The maximum aggregate number of shares of Common Stock that may
be issued in connection with Options granted under the Plan
(excluding the December 1988 Options, but after taking into
account the 6.5-for-one stock split that is anticipated to occur
and described in the Registration Statement filed with the
Commission on November 23, 1994, as amended (the "Registration
Statement")) shall be 696,150, subject to adjustment as set forth
in Section 8.3."
5. Section 3.1 is amended to add the following sentence to the
end thereof:
"The Exercise Price may also, in the Committee's sole discretion,
be paid in the form of shares of Common Stock withheld by the
Company from the shares that would otherwise have been received by
a Management Investor upon exercise of the Vested Option (which
shares shall be valued by the Committee at their fair market
value, net of the applicable Exercise Price, as determined by the
Committee in its sole discretion). In its discretion, the
Committee may also permit a Management Investor to exercise a
Vested Option through a "cashless exercise" procedure involving a
broker or dealer approved by the Committee, provided that the
Management Investor has delivered an irrevocable notice of
exercise (the "Notice") to the broker or dealer and such broker or
dealer agrees: (A) to sell immediately the number of shares of
Common Stock specified in the Notice to be acquired upon exercise
of the Vested Option in the ordinary course of its business, (B)
to pay promptly to the Company the aggregate Exercise Price (plus
the amount necessary to satisfy any applicable tax liability) and
(C) to pay to the Management Investor the balance of the proceeds
of the sale of such shares over the amount determined under clause
(B) of this sentence, less applicable commissions and fees;
provided, however, that the Committee may modify the provisions of
this sentence to the extent necessary to conform the exercise of
the Vested Option to Regulation T of the Exchange Act."
6. The first sentence of Section 3.3 is amended in its entirety
to read as follows:
"All Options granted under the Plan shall vest and become
exercisable ("Vested Options") as of the effective date of the
1995 MEP Amendment."
7. Section 5.1 is amended in its entirety to read as follows:
"Stockholders Agreement. Each Management Investor who
purchases a share of Common Stock pursuant to the Plan prior to
the effective date of the 1995 MEP Amendment shall, on or prior to
the first issuance of Common Stock to such Management Investor,
agree to become a "Holder" for the purposes of the Stockholders
Agreement and to be bound by all the terms of the Stockholders
Agreement applicable to such a Holder, and to be entitled to the
benefits of a Holder thereof. Notwithstanding any conflicting
provision in the applicable Agreement, no Management Investor,
other than the Management Investors described in the preceding
sentence, shall be deemed to be a Holder for the purposes of the
Stockholders Agreement with respect to any shares of Common Stock
acquired upon exercise of Vested Options."
8. Section 5.2 is amended in its entirety to read as follows:
"General Restrictions on Transfer. A Management Investor
may not Sell (as defined below) any Common Stock or any interest
therein (i) for the period ending 180 days after the effective
date of the Registration Statement or (ii) following the
expiration of such 180-day period, except in compliance with the
Securities Act and any applicable state securities laws. Subject
to Section 5.6 hereof, no Option (whether or not a Vested Option)
or any right or interest therein may be sold, transferred,
assigned, pledged or otherwise encumbered or disposed of
(collectively, "Sell"). A Vested Option can only be exercised in
accordance with the terms of the Plan and the applicable
Agreement. No transfer of Common Stock in violation of the Plan
shall be made or recorded on the books of the Company and any such
transfer shall be void and of no effect."
9. The legend set forth in Section 5.3 is amended in its
entirety to read as follows:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR QUALIFIED UNDER ANY APPLICABLE STATE
SECURITIES LAWS. THIS SECURITY MAY BE OFFERED, SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF ONLY IN COMPLIANCE WITH THE REQUIREMENTS
OF SUCH ACT AND ANY APPLICABLE STATE SECURITIES LAWS."
10. The first sentence of Section 5.5 is amended by deleting the
words "pursuant to Section 5.6 hereof (other than paragraph (a)
thereof)" and inserting the words "(other than a transfer of Vested
Options pursuant to Section 5.6 hereof)" after the words "Common Stock
or any interest therein".
11. Section 5.6 is amended in its entirety to read as follows:
"SECTION 5.5. Certain Permitted Transfers. Each Management
Investor shall have the right to Sell Vested Options to a
Permitted Transferee (as defined below). For purposes of the
Plan, the term "Permitted Transferee" means a Person to whom a
transfer is made by will or the laws of descent and distribution
upon the death of any Management Investor; provided that no
transfer pursuant to this Section 5.5 shall be given effect on the
books of the Company unless and until the transferee shall agree
in writing, in form and substance satisfactory to the Company, to
become, and becomes, bound by all the terms of the Plan, the
applicable Agreement and, at the option of the Company, the
Stockholders Agreement. Anything to the contrary contained herein
notwithstanding, no transfer from a Management Investor or any
Permitted Transferee shall be made or recorded on the stock
transfer records of the Company if, as a result thereof, the
Company would be required to register any Common Stock under the
Securities Act, the Exchange Act, or any applicable state
securities or "blue sky" laws or would become subject to or would
be in violation of the Investment Company Act."
12. Article VI is amended by deleting Sections 6.1, 6.2, 6.3,
6.4, 6.5 and 6.6 thereof and by renumbering Sections 6.7 and 6.8 as
Sections 6.1 and 6.2, respectively.
13. The first sentence of Section 7.2 is amended by (x) deleting
the words "A Management Investor shall agree" and by substituting
therefor "Notwithstanding any conflicting provision in the applicable
Agreement, each Management Investor shall be deemed to have agreed" and
(y) deleting the portion of such sentence that follows the words "in the
event of such breach," and by substituting the following therefor:
"in the case of any Vested Options exercised within six months of
(or subsequent to) such termination of employment, promptly pay to
the Company an amount in cash equal to the difference between the
Fair Market Value of a share of Common Stock on the date of
exercise of such Vested Options and the Exercise Price of such
Vested Options multiplied by the number of shares of Common Stock
subject to such Vested Options."
14. The second sentence of Section 7.2 is amended by (x)
deleting the words "A Management Investor shall also agree" and by
substituting therefor "Notwithstanding any conflicting provision in the
applicable Agreement, each Management Investor shall be deemed to have
agreed" and (y) deleting the words "clause (i) or (ii) of" and ", as
applicable".
Each of the foregoing amendments to the Plan shall, where
applicable, be deemed to be an amendment to the corresponding provision set
forth in each applicable Agreement (as defined in the Plan), and in the event
of any conflict or inconsistency between the Plan, as amended, and any such
Agreement, as deemed to be amended, the Plan shall govern.
/s/ Donald H. DeMeuse
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Donald H. DeMeuse
/s/ Kathleen J. Hempel
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Kathleen J. Hempel