Exhibit 10(xxviii)
THIRD AMENDMENT
TO
THE MEAD CORPORATION
EXECUTIVE CAPITAL ACCUMULATION PLAN
WHEREAS The Mead Corporation ("Mead") heretofore established The Mead
Corporation Executive Capital Accumulation Plan (the "Plan"); and
WHEREAS Mead desires to amend the Plan pursuant to the power reserved
to Mead's Compensation Committee by Section 13 of the Plan;
NOW, THEREFORE, the Plan is hereby amended, effective as of June 24,
1998, as follows:
1. Subsection 1.2 of the Plan is amended to read, in its entirety, as
follows:
"1.2 Plan Funding and Administration. The benefits payable under the
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Plan are unfunded and are payable, when due, from the general assets of
Mead; provided, however, that Mead, in its discretion, may establish or
maintain a trust to pay such amounts, which trust shall be subject to the
claims of Mead's unsecured general creditors in the event of Mead's
bankruptcy or insolvency; and provided, further, that Mead shall remain
responsible for the payment of any such amounts which are not so paid by
any such trust. The Plan shall be administered by the Committee which shall
have the rights, powers and duties with respect to the Plan that are
hereinafter set forth."
2. Subsection 6.1 of the Plan is amended by the addition of the
following sentence at the end thereof:
"Notwithstanding the foregoing provisions of this subsection 6.1, upon and
after the occurrence of a Change in Control, the Committee shall have no
power to eliminate any Crediting Option which was available immediately
prior to the Change in Control and, if any Crediting Option shall be
eliminated through circumstances beyond the control of the Committee, the
Committee shall immediately add a Crediting Option which will provide an
investment return equal to one-hundred-twenty percent (120%) of the long-
term Federal interest rate determined monthly under Section 1274(d) of the
Internal Revenue Code of 1986, as amended from time to time, compounded
semi-annually."
3. Subsection 11.4 of the Plan is amended to read, in its entirety,
as follows:
"11.4 Change in Control. A 'Change in Control' shall be deemed to have
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occurred if an event set forth in any one of the following paragraphs shall have
occurred:
"(i) date of expiration of a Tender Offer (other than an offer by
Mead), if the offeror acquires Shares pursuant to such Tender Offer;
"(ii) the date of approval by the shareholders of Mead of a
definitive agreement: (x) for the merger or consolidation of Mead or any direct
or indirect subsidiary of Mead into or with another corporation, other than (1)
a merger or consolidation which would result in the voting securities of Mead
outstanding immediately prior thereto continuing to represent ((i) in the case
of a merger or consolidation of Mead, either by remaining outstanding or by
being converted into voting securities of the surviving entity or any parent
thereof, or (ii) in the case of a merger or consolidation of any direct or
indirect subsidiary of Mead, either by remaining outstanding if Mead continues
as a parent of the merged or consolidated subsidiary or by being converted into
voting securities of the surviving entity or any parent thereof) at least 51% of
the combined voting power of the voting securities of Mead or such surviving or
parent entity outstanding immediately after such merger or consolidation, or (2)
a merger or consolidation effected to implement a recapitalization of Mead (or
similar transaction) in which no Person (as defined below) is or becomes the
Beneficial Owner (as defined below), directly or indirectly, of securities of
Mead (not including in the securities Beneficially Owned by such Person any
securities acquired directly from Mead or its Affiliates) representing 25% or
more of the combined voting power of Mead's then outstanding securities, or (y)
for the sale or disposition of all or substantially all of the assets of Mead,
other than a sale or disposition by Mead of all or substantially all of Mead's
assets to an entity, at least 51% of the combined voting power of the voting
securities of which are owned (directly or indirectly) by shareholders of Mead
in substantially the same proportions as their ownership of Mead immediately
prior to such sale or disposition;
"(iii) (x) any Person is or becomes the Beneficial Owner of 25%
or more of the voting power of the then outstanding securities of Mead
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(not including in the securities beneficially owned by such Person any
securities acquired directly from Mead or its affiliates), excluding any Person
who becomes such a Beneficial Owner in connection with a transaction described
in clause (x)(l) of paragraph (ii) above or (y) the date of authorization, by
both a majority of the voting power of Mead and a majority of the portion of
such voting power excluding the voting power of interested Shares, of a control
share acquisition (as such term is defined in Chapter 1701 of the Ohio Revised
Code); and
"(iv) a change in the composition of the Board of Directors such
that individuals who were members of the Board of Directors on the date two
years prior to such change (and any new directors (other than a director whose
initial assumption of office is in connection with an actual or threatened
election contest, including but not limited to a consent solicitation, relating
to the election of directors of Mead) who were elected, or were nominated for
election, by Mead's shareholders with the affirmative vote of at least two-
thirds of the directors then still in office who either were directors at the
beginning of such two year period or whose election or nomination for election
was previously so approved) no longer constitute a majority of the Board of
Directors.
"Notwithstanding the foregoing, a 'Change in Control' shall not be deemed to
have occurred by virtue of the consummation of any transaction or series of
integrated transactions immediately following which the record holders of the
common stock of Mead immediately prior to such transaction or series of
transactions continue to have substantially the same proportionate ownership in
an entity which owns all or substantially all of the assets of Mead immediately
following such transaction or series of transactions.
"'Affiliate' shall have the meaning set forth in Rule 12b-2 promulgated under
Section 12 of the Exchange Act.
"'Beneficial Owner' shall have the meaning defined in Rule 13d-3 under the
Exchange Act.
"'Exchange Act' shall mean the Securities Exchange Act of 1934, as amended from
time to time.
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"'Person' shall have the meaning given in Section 3(a)(9) of the Exchange Act,
as modified and used in Sections 13(d) and 14(d) thereof, except that such term
shall not include (i) Mead or any of its subsidiaries, (ii) a trustee or other
fiduciary holding securities under an employee benefit plan of Mead or any of
its Affiliates, (iii) an underwriter temporarily holding securities pursuant to
an offering of such securities, or (iv) a corporation owned, directly or
indirectly, by the shareholders of Mead in substantially the same proportions as
their ownership of stock of Mead.
"'Shares' shall mean shares of common stock, without par value, of The Mead
Corporation.
"'Tender Offer' shall mean a tender offer or a request or invitation for tenders
or an exchange offer subject to regulation under Section 14(d) of the Exchange
Act and the rules and regulations thereunder, as the same may be amended,
modified or superseded from time to time."
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