Exhibit 10.xxxvi
Amended Through
October 29, 1988
COMPOSITE
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THE MEAD CORPORATION
DEFERRED COMPENSATION PLAN FOR DIRECTORS*
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Section 1. Definitions.
(a) Year means each calendar year commencing on January 1 and ending on
the succeeding December 31.
(b) Company means The Mead Corporation, an Ohio corporation, and its
corporate successors.
(c) Compensation Committee means the Compensation Committee of the Board
of Directors of the Company.
(d) Director means any person who serves on the Board of Directors of the
Company except members of the Board of Directors who are also
employees of the Company.
(e) Plan means this Deferred Compensation Plan for Directors.
(f) Termination Date means the date a Director concludes his/her service
on the Company's Board of Directors.
Section 2. Eligibility.
The Plan is limited to those present or future Directors of the Company.
Section 3. Administration.
(a) The Plan shall be administered by the Compensation Committee which may
delegate to the appropriate officers and/or employees of the Company such duties
in connection with the administration of the Plan as they may deem
necessary, advisable or appropriate. All Directors who are members of the
Compensation Committee shall be eligible to participate in the Plan.
(b) Subject to the express provisions of the Plan, the Compensation
Committee shall have authority to construe and interpret the Plan, to prescribe,
amend, and rescind rules and regulations relating to the Plan, and to make all
other determinations necessary or advisable for administering the Plan. The
Compensation Committee may correct any defect or supply any omission or
reconcile any inconsistency in the Plan in the manner and to the extent it shall
deem expedient to carry it into effect. The determinations of the Compensation
Committee on any matters within the scope of this Section 3(b) shall be
conclusive.
Section 4. Election by Participants.
(a) At least thirty days prior to the commencement of each Year, the
Compensation Committee shall cause to be furnished to each Director an
appropriate form which enables the Director to elect to defer, until after the
Director's termination date, payment of a minimum of 20% up to a maximum of 100%
(in increments of 10%) of compensation earned for service on the Company's Board
of Directors during the upcoming year (including annual retainer and fees for
attending meetings of the Board and its Committees, but excluding expense
reimbursement). The Director shall select the date and manner of receiving any
compensation that is deferred each year, provided that such selection must be in
accordance with the following:
(i) with respect to compensation payable for the 1987 Year and preceding
years.
(I) the date to pay or commence paying the compensation shall be the
first day of any month after the Director's Termination Date and before the
Director's 72nd birthday, and
(II) the compensation shall be paid either in one lump sum on the
Deferral Date or in up to 25 annual installments, commencing on the Deferral
Date.
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*This is a composite of The Mead Corporation Deferred Compensation Plan for
Directors, reflecting the plan and all amendments adopted through October
29, 1988. The plan has been supplemented by a 1985 Supplement which is set
forth in a separate document.
(ii) with respect to compensation payable for the 1988 Year and
subsequent years.
(I) the date to commence paying the compensation shall be the January
2 next following the Director's Termination Date or such later January 2 as may
be chosen by the Director, but in any event not later than the January 2 of the
Year following the year in which the Participant becomes or would have become
age 72, and
(II) the compensation shall be paid in 15 level annual installments
commencing on the Deferral Date.
The date chosen to pay or commence payment of compensation pursuant to
paragraph (i)(I) or (ii)(I) above is referred to herein as the "Deferral Date."
The actual payment of the lump sum or of the first of the annual installments
may be at any time within one year of the Deferral Date, at the sole discretion
of the Compensation Committee (or its delegate). To the extent that a Director
has not elected to defer compensation, such compensation payment shall be made
in cash to him/her at the time it would be otherwise payable.
(b) In order to be effective, the form must be signed by the Director and
must be returned to the Compensation Committee (or its delegate) prior to the
commencement of the Year. If the Director fails to return the form or if the
form is received after the commencement of the Year, then the Director shall be
deemed to have elected not to defer compensation and no amended election made
thereon, which is otherwise permitted by Section 4(c), shall be effective.
(c) The election made by the Director under Section 4(a) shall be
irrevocable provided that a Deferral Date chosen by the Participant and/or the
number of installments payable to the Director may be changed by the
Compensation Committee, in its sole discretion, but only, unless the
Compensation Committee determines otherwise, in the event of a severe financial
hardship to the Director resulting from a sudden and unexpected illness or
accident to the Director or a dependent (as defined in Section 152(a) of the
Internal Revenue Code) of the Director, loss of the Director's property due to
casualty, or other similar extraordinary and unforeseeable circumstances arising
as a result of events beyond the control of the Director. In the event a change
made pursuant to this paragraph affects a Director who is a member of the
Compensation Committee, such Director shall not participate in the Compensation
Committee's decision. The number of installments payable to the Director's
designated beneficiary may be changed by the Compensation Committee on the same
basis as set forth in this paragraph.
(d) In the case of a new Director who has been designated as eligible to
participate in the Plan for the Year in which he/she begins service on the
Company Board of Directors, a timely election with respect to such Year will be
deemed to have been made if it is in fact made and returned to the Compensation
Committee within 30 days after such person becomes a Director.
Section 5. Deferred Compensation.
(a) The Company shall establish an appropriate record (hereinafter
referred to as the "Deferred Compensation Ledger") and thereafter from time to
time enter therein the name of each Director who has elected Deferred
Compensation in accordance with Section 4 hereof, the amount of compensation
payments which he/she has elected to defer and his/her preference as to the
manner of payment of such compensation.
(b) With respect to compensation earned in 1982 through 1983, the Company
shall credit annually to a Director's account (including the account of a
Director who has passed his Termination Date) interest at a rate equal to the
weekly composite bond yield for single A bonds rounded to the nearest 1/10 of
1%, as published in the S & P Indexes of the Security Markets for the last week
of the third quarter of the Year preceding the year earned.
For compensation earned in 1984 and 1985, the interest to be credited to
such account(s) shall be at a rate equal to the nine-month average composite
bond yield for single A bonds rounded to the nearest 1/10 of 1% as published in
the S & P Indexes of the Security Markets for the first nine months of the
Second Year preceding the year such interest is credited.
For compensation earned in 1986 and subsequent years, the interest to be
credited to such account(s) shall be at a rate equal to the nine-month average
composite bond yield for prime grade, ten-year municipal bonds rounded to the
nearest 1/10 of 1% published in the Salomon Brothers Index of the Security
Markets for the first nine months of the Second Year preceding the year such
interest is credited. Each post-1983 account will be credited with interest,
which will change from year to year based upon the above calculations.
(2)
(c) Except to the extent otherwise provided in this Section, the amounts
credited to a Director's account in the Deferred Compensation Ledger shall be
paid to the Director (or his/her beneficiary designated under Section 5(d)
hereof) after his/her Termination Date in accordance with Section 4(a) hereof.
In the case of installment payments, each such payment shall include an amount
equal to the percentages credited to his/her account under Section 5(b) hereof
since the next preceding payment.
Notwithstanding the form of payment selected by the Director, the amounts
(or a portion of the amounts) credited to a Director's account (or accounts) in
the Deferred Compensation Ledger shall be paid as follows under the following
circumstances:
(i) if the aggregate amount credited to a Director's account is $10,000 or
less, at the time of his/her Termination Date (after all distributions pursuant
to (ii) below), then such amount shall be paid in one lump sum on or before the
last day of the month next following the Director's Termination Date.
(ii) if the Director's Termination Date precedes his/her 55th birthday
(other than as a result of the Director's death or disability), then deferred
compensation relating to the 1988 Year and subsequent years and earnings thereon
credited to the Director's account shall be paid in one lump sum on or before
the last day of the month next following the Director's Termination Date.
(d) Each Director upon election of Deferred Compensation shall file with
the Compensation Committee (or its delegate) a notice in writing designating one
or more beneficiaries to whom payments shall be made in the event of his/her
death. The Director shall have the right to change the beneficiary or
beneficiaries from time to time; provided, however, that any change shall not
become effective until received in writing by the Compensation Committee (or its
delegate). In the event a Director fails to deliver such written designation,
then such payments shall be made to the estate of such Director. At the time of
filing a form pursuant to Section 4(a), the Director may also file with the
Compensation Committee (or its delegate) a written election of the date for
commencement of payments to the designated beneficiary and manner of payment in
the event of his/her death. In the event a Director fails to deliver such
written election, payment shall commence as of the date of his/her death or
continue to be paid to his/her beneficiary in the manner elected under Section
4(a). In no event shall the aggregate number of annual installments paid to a
Director and his/her beneficiary exceed 25.
(e) Nothing contained in the Plan and no action taken pursuant to the
provisions hereof shall create or be construed to create a trust of any kind, or
a fiduciary relationship between the Company and any Director, or any
beneficiary of such Director designated pursuant to Section 5(d) hereof or any
other person. Title to, and beneficial ownership of, any amounts credited to the
Deferred Compensation Ledger shall at all times remain in the Company, and no
Director or any beneficiary designated pursuant to Section 5(d) hereof shall
have any property interest whatsoever in such amounts or in any specific assets
of the Company. All amounts so credited shall remain general assets of the
Company and shall be subject to the claims of general creditors of the Company.
Section 6. Nonalienation of Benefits.
No right or benefit under this Plan shall be subject to anticipation,
alienation, sale, assignment, pledge, encumbrance, or charge, and any attempt to
anticipate, alienate, sell, assign, pledge, encumber, or charge the same shall
be void. No right or benefit hereunder shall in any manner be liable for or
subject to the debts, contracts, liabilities, or torts of the person entitled to
such benefits. If any Director or beneficiary hereunder should become bankrupt
or attempt to anticipate, alienate, sell, assign, pledge, encumber, or charge
any right or benefit hereunder, then such right or benefit shall, in the
discretion of the Compensation Committee, cease and terminate, and in such
event, the Company may hold or apply the same or any part hereof for the benefit
of the Director or beneficiary, his/her spouse, children, or other dependents,
or any of them in such manner and in such proportion as the Compensation
Committee may deem proper.
Section 7. Amendment or Termination of Plan.
The Board of Directors of the Company may amend or terminate the Plan at
any time; provided, however, that the percentage which has been or will be
credited to a Director's account in accordance with Section 5(b) shall not
change and the rights of a Director or beneficiary to commence or continue
distributions from the Deferred Compensation Ledger (including its valuation)
shall not be affected.
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1. Amended through November 1, 1985.
2. Amendments to Sections 4 and 5 adopted effective as of October 1, 1987.
3. Amendment to Section 7 adopted October 29, 1988.
(3)
SECOND AMENDMENT
TO
THE MEAD CORPORATION
DEFERRED COMPENSATION PLAN FOR DIRECTORS
WHEREAS The Mead Corporation (the "Company") heretofore established
The Mead Corporation Deferred Compensation Plan for Directors (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 7 of the Plan;
NOW, THEREFORE, the Plan is hereby amended, effective as of June 24,
1998, as follows:
1. Section 1(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 8 hereof whether or not any Change in
Control of the Company has occurred, its corporate successors.
2. Section 4(c) of the Plan is amended by the addition of the
following sentence at the end thereof:
"Notwithstanding the foregoing provisions of this Section 4(c), upon and
after the occurrence of a Change in Control (as defined in Section 8
hereof), the discretionary power given the Compensation Committee to change
the Deferral Date chosen by a Director and/or the form of payment of the
Director'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 Director 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 5(e) of the Plan is amended by the addition of the
following sentence at the end thereof:
"Notwithstanding the foregoing provisions of this Section 5(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 8:
"Section 8. 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, of securities of the Company (not
including in the securities Beneficially
2
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
3
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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AMENDMENT TO
THE MEAD CORPORATION
DEFERRED COMPENSATION PLAN FOR DIRECTORS
WHEREAS, The Mead Corporation ("Mead") established The Mead Corporation
Deferred Compensation Plan for Directors (the "Plan") and subsequently amended
the Plan, and
WHEREAS, Mead desires to further amend the Plan pursuant to the power
reserved to Mead's Compensation Committee by Section 7 of the Plan;
NOW, THEREFORE, the Plan is hereby amended, effective as of October 26,
2001, as follows:
1. Section 4(a), first paragraph, second sentence is revised to add
"Except as otherwise provided in the Plan," at the beginning thereof.
2. Section 4(c), first paragraph, first sentence is revised to add
"Except as otherwise provided in the Plan" at the beginning thereof.
3. Section 5(c) is revised to add a new third paragraph to read as
follows:
Notwithstanding any provision in the Plan to the contrary but subject
to this Section 5(c), second paragraph (except as otherwise
specifically provided in this paragraph), a former or current Director
can revise the Deferral Date and the number of installments (including
a lump sum payment) to receive earned compensation that has been
deferred as follows:
(i) prior to a Change in Control, a former or current
Director may revise a previously elected Deferral Date and number of
installments (such revision being permitted to include receiving all
or a portion of an account in a lump sum following a Change in Control
and prior to termination of service), provided that any such revision
is effective only for distributions on or following a Change in
Control and occurring during January 2003 and thereafter and with
respect to all or a portion of the balance of such Director's account
on a Change in Control; and
(ii) at least three months prior to termination of service
as a Director (whether before or after a Change in Control), a current
Director may file such revision with respect to the balance of such
Director's account on such termination of service.
A Director can make revisions in accordance with this subsection
on a form furnished by and filed with the person responsible for
administering the Plan at any time prior to the dates stated in this
subsection 5(c).
4. Section 7 is revised to (a) delete the word "and" and insert a comma
in substitute thereof, (b) delete the period at the end of the sentence and
insert the word "and" in substitute thereof and (c) add the following at the
end, "a former or current Director's right to make or request revisions in
accordance with Sections 4 and 5 shall continue."