Exhibit 10(xii)
THIRD AMENDMENT
TO
THE MEAD CORPORATION
INCENTIVE COMPENSATION ELECTION PLAN
WHEREAS The Mead Corporation (the "Company") heretofore established
The Mead Corporation Incentive Compensation Election Plan (the "Plan") and
subsequently amended the Plan; and
WHEREAS the Company desires to further amend the Plan pursuant to the
power reserved to the Company's Board of Directions by Section 9 of the Plan;
NOW, THEREFORE, the Plan is hereby amended, effective as of June 24,
1998, as follows:
1. Section 2(b) of the Plan is amended to read, in its entirety, as
follows:
"(b) Company means The Mead Corporation, an Ohio corporation, and,
except in determining under Section 10 hereof whether or not any Change in
Control of the Company has occurred, its corporate successors.
2. Section 5(b) of the Plan is amended by the addition of the
following sentence at the end thereof:
"Notwithstanding the foregoing provisions of this Section 5(b), upon and
after the occurrence of a Change in Control (as defined in Section 10
hereof), the discretionary power given the Compensation Committee to change
the Deferral Date chosen by a Participant and/or the form of payment of the
Participant's benefits hereunder shall be exercisable in a manner which
postpones the Deferral Date or postpones or reduces any benefit payment
only if the Compensation Committee shall have previously received a written
request from the Participant for such change and such power shall be
exercisable only to determine whether to grant the particular change
requested or to retain existing Deferral Date and existing form of
payments."
3. Section 6(e) of the Plan is amended by the addition of the
following sentence at the end thereof:
"Notwithstanding the foregoing provisions of this Section 6(e), the
benefits payable under the Plan are unfunded and are payable, when due,
from the general assets of the Company; provided, however, that the
Company, in its discretion, may establish or maintain a trust to pay such
amounts, which trust shall be subject to the claims of the Company's
unsecured general creditors in the event of the Company's bankruptcy or
insolvency; and provided, further, that the Company shall remain
responsible for the payment of any such amounts which are not so paid by
any such trust."
4. The Plan is amended by the addition of the following new Section
10:
"Section 10. Definition of Change in Control
"For purposes of the Plan, a 'Change in Control' shall be deemed to
have 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
the Company), if the offeror acquires Shares pursuant to such Tender Offer;
"(ii) the date of approval by the shareholders of the Company of
a definitive agreement: (x) for the merger or consolidation of the Company
or any direct or indirect subsidiary of the Company into or with another
corporation, other than (1) a merger or consolidation which would result in
the voting securities of the Company outstanding immediately prior thereto
continuing to represent ((i) in the case of a merger or consolidation of
the Company, 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 the Company, either by remaining outstanding if the Company 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 the
Company 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 the Company (or similar transaction) in
which no Person (as defined below) is or becomes the Beneficial Owner (as
defined below), directly or indirectly,
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of securities of the Company (not including in the securities Beneficially
Owned by such Person any securities acquired directly from the Company or
its Affiliates) representing 25% or more of the combined voting power of
the Company's then outstanding securities, or (y) for the sale or
disposition of all or substantially all of the assets of the Company, other
than a sale or disposition by the Company of all or substantially all of
the Company'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 the Company in substantially the same proportions as
their ownership of the Company 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 the
Company (not including in the securities beneficially owned by such Person
any securities acquired directly from the Company 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 the
Company 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 the Company) who
were elected, or were nominated for election, by the Company'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 the Company immediately prior to such transaction or
series of transactions continue to have substantially the same
proportionate
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ownership in an entity which owns all or substantially all of the assets of
the Company 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.
"'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) the Company or any of its subsidiaries,
(ii) a trustee or other fiduciary holding securities under an employee
benefit plan of the Company 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
the Company in substantially the same proportions as their ownership of
stock of the Company.
"'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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