[Form of Change of Control Agreement]
[FirstName]
[Address1]
[City] [PostalCode]
Dear [JobTitle]:
The Board of Directors (the "Board") of Georgia-Pacific Corporation (the
"Company") has given careful consideration to the potential impact upon you (the
"Executive") and other officers in the event of a threatened or actual Change of
Control (as defined below) of the Company.
The Board believes it is imperative to diminish the inevitable distraction to
you of the personal uncertainties and risks that would be created by a pending
or threatened Change of Control, and considers it in the best interests of the
Company and its shareholders to encourage you to give your full attention and
dedication to the Company's business and affairs in the event of any such Change
of Control. In order to accomplish this, the Board has approved specified
compensation and benefit arrangements for you in the event of a Change of
Control, which are designed to meet your reasonable expectations with respect to
such matters, and enable the Company to be competitive with similar practices of
other corporations. This letter agreement (the "Agreement") sets forth terms
and conditions of the Company's agreement with you concerning such arrangements.
1. In this Agreement, the terms set forth below have the meanings ascribed
to them:
(a) The "Effective Date" shall mean the first date during the Change of
Control Period (as defined below) on which a Change of Control (as defined
below) occurs. Anything in this Agreement to the contrary notwithstanding, if a
Change of Control occurs and if the Executive's employment with the Company is
terminated within one year prior to the date on which the Change of Control
occurs, and if it is reasonably demonstrated by the Executive that such
termination of employment (i) was at the request of a third party which had
taken steps reasonably calculated to effect a Change of Control or (ii)
otherwise arose in connection with or anticipation of a Change of Control, then
for all purposes of this Agreement the "Effective Date" shall mean the date
immediately prior to the date of such termination of employment.
(b) The "Change of Control Period" shall mean the period commencing on the
date hereof and ending on the third anniversary of the date hereof;
provided, however, that commencing on the date one year after the date hereof,
and on each annual anniversary of such date (such date and each annual
anniversary thereof shall be hereinafter referred to as the "Renewal Date"),
unless this Agreement shall have been terminated pursuant to its terms, the
Change in Control Period shall be automatically extended so as to terminate
three years from such Renewal Date.
(c) A "Change of Control" shall mean:
(i) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"))(a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
20% or more of the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided, however,
that for purposes of this definition, the following acquisitions shall not
constitute a Change of Control: (A) any such acquisition by a Person who on
the date of this Agreement was the beneficial owner of 20% or more of the
Outstanding Company Voting Securities; (B) any such acquisition directly
from the Company, including without limitation a public offering of
securities; (C) any such acquisition by the Company; (D) any such
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any of its Affiliated Companies; or (E) any
acquisition by any corporation pursuant to a transaction which complies
with subparagraphs (A), (B) and (C) of subparagraph (iii) below;
(ii) Individuals who constitute the Board as of the date of this
Agreement (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board, provided that any individual becoming a
director subsequent to the date of this Agreement whose election, or
nomination for election by the Company's shareholders, was approved by a
vote of at least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office is in connection with an actual or threatened
election contest relating to the election or removal of the directors of
the Company or other actual or threatened solicitation of proxies of
consents by or on behalf of a Person other than the Board;
(iii) Consummation of a reorganization, merger or consolidation to
which the Company is a party or a sale or other disposition of all or
substantially all of the assets of the Company (a "Business Combination"),
in each case unless, following such Business Combination: (A) all or
substantially all of the individuals and entities who were the beneficial
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owners of Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more then
50% of the combined voting power of the outstanding voting securities
entitled to vote generally in the election of directors of the corporation
resulting from the Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the Company or all
or substantially all of the Company's assets either directly or through one
or more Affiliated Companies) (the "Successor Entity") in substantially the
same proportions as their ownership immediately prior to such Business
Combination of the Outstanding Company Voting Securities; and (B) no Person
(excluding any Successor Entity or any employee benefit plan, or related
trust, of the Company or such Successor Entity) beneficially owns, directly
or indirectly, 20% or more of the combined voting power of the then
outstanding voting securities of the Successor Entity, except to the extent
that such ownership existed prior to the Business Combination; and (C) at
least a majority of the members of the board of directors of the Successor
Entity were members of the Incumbent Board (including persons deemed to be
members of the Incumbent Board by reason of the proviso to subparagraph
(ii) above) at the time of the execution of the initial agreement or of the
action of the Board providing for such Business Combination; or
(iv) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
(d) "Affiliated Companies" shall mean any company controlled by,
controlling or under common control with, the Company.
2. The Company hereby agrees to continue the Executive in its employ, and
the Executive hereby agrees to remain in the employ of the Company subject to
the terms and conditions of this Agreement, for the period commencing on the
Effective Date and ending on the earlier of the third anniversary of such date
or the Executive's 65th birthday (the "Employment Period"); provided, however,
that unless notice of termination of this Agreement shall have been given by
either the Company or the Executive prior to such third anniversary of the
Effective Date, the Employment Period shall be automatically renewed on such
anniversary and on each succeeding anniversary of the Effective Date for
successive one year periods until any such notice of termination shall have been
given; and provided further that in no event shall the Employment Period extend
beyond the Executive's 65th birthday.
(a) During the Employment Period, (i) the Executive's position (including
offices, titles and reporting requirements), authority, duties and
responsibilities shall be at least commensurate in all material respects with
the most significant of those held at any time during the 120-day period
immediately preceding the Effective Date and (ii) the Executive's services shall
be performed
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at the location where the Executive was employed immediately
preceding the Effective Date or at any office or location of the Company in the
Atlanta, Georgia, metropolitan area.
(b) During the Employment Period (excluding any periods of vacation and
sick leave to which the Executive is entitled), the Executive agrees to devote
reasonable attention and time during normal business hours to the business and
affairs of the Company and, to the extent necessary to discharge the
responsibilities assigned to the Executive hereunder, to use the Executive's
reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a violation of
this Agreement for the Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions and (C) manage personal investments, so long
as such activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance with
this Agreement. It is expressly understood and agreed that to the extent that
any such activities have been conducted by the Executive prior to the Effective
Date, the continued conduct of such activities (or the conduct of activities
similar in nature and scope thereto) subsequent to the Effective Date shall not
thereafter be deemed to interfere with the performance of the Executive's
responsibilities to the Company.
(c) During the Employment Period:
(i) Base Salary. The Executive shall receive an annual base salary
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("Annual Base Salary"), which shall be paid no less frequently than
monthly, equal to the base salary paid to the Executive by the Company and
its Affiliated Companies at the rate in effect immediately prior to the
Effective Date. During the Employment Period, the Annual Base Salary shall
be reviewed no more than 12 months after the last salary increase awarded
to the Executive prior to the Effective Date and thereafter at least
annually. Any increase in Annual Base Salary shall not serve to limit or
reduce any other obligation to the Executive under this Agreement.
Executive's Annual Base Salary shall not be reduced during the Employment
Period, and the term Annual Base Salary as utilized in this Agreement shall
refer to Annual Base Salary as in effect at the time of any determination
made pursuant to this Agreement.
(ii) Annual Incentive Payment. The Executive shall be awarded (for
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each fiscal year ending during the Employment Period), an annual incentive
payment bonus (the "Annual Incentive") in cash at least equal to the
average of the Executive's awards under the Company's Employee Value
Incentive Plan, or any comparable bonus under any predecessor or successor
plan, for each of the last two full fiscal years prior to the Effective
Date (annualized in the event that the Executive was not employed by the
Company for the whole of such fiscal year). Each such
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Annual Incentive shall be paid no later than the end of the second month of
the fiscal year next following the fiscal year for which the Annual
Incentive is awarded, unless the Executive shall elect to defer the receipt
of such Annual Incentive in accordance with the terms of any applicable
deferred compensation plan.
(iii) Incentive, Savings and Retirement Plans. The Executive shall
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be entitled to participate in all incentive, savings and retirement plans,
practices, policies and programs applicable generally to other peer
executives of the Company and its Affiliated Companies, but in no event
shall such plans, practices, policies and programs provide the Executive
with incentive opportunities (measured with respect to both regular and
special incentive opportunities, to the extent, if any, that such
distinction is applicable), savings opportunities and retirement benefit
opportunities, in each case, less favorable, in the aggregate, than the
most favorable of those provided by the Company and its Affiliated
Companies for the Executive under such plans, practices, policies and
programs as in effect at any time during the 120-day period immediately
preceding the Effective Date or, if more favorable to the Executive, those
provided generally at any time after the Effective Date to other peer
executives of the Company and its Affiliated Companies.
(iv) Welfare Benefit Plans. The Executive and/or the Executive's
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family, as the case may be, shall be eligible for participation in and
shall receive all benefits under welfare benefit plans, practices, policies
and programs provided by the Company and its Affiliated Companies
(including, without limitation, medical, prescription, dental, disability,
employee life, group life, accidental death and travel accident insurance
plans and programs) to the extent applicable generally to other peer
executives of the Company and its Affiliated Companies, but in no event
shall such plans, practices, policies and programs provide the Executive
with benefits which are less favorable, in the aggregate, than the most
favorable of such plans, practices, policies and programs in effect for the
Executive at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, those provided
generally at any time after the Effective Date to other peer executives of
the Company and its Affiliated Companies.
(v) Expenses. The Executive shall be entitled to receive prompt
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reimbursement for all reasonable expenses incurred by the Executive in
accordance with the most favorable policies, practices and procedures of
the Company and its Affiliated Companies in effect for the Executive at any
time during the 120-day period immediately preceding the Effective Date or,
if more favorable to the Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and its
Affiliated Companies.
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(vi) Fringe Benefits. The Executive shall be entitled to fringe
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benefits in accordance with the plans, practices, programs and policies of
the Company and its Affiliated Companies in effect for the Executive at any
time during the 120-day period immediately preceding the Effective Date or,
if more favorable to the Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and its
Affiliated Companies.
(vii) Vacation. The Executive shall be entitled to paid vacation on
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terms no less favorable than those provided for in the vacation policies,
programs and practices of the Company and its Affiliated Companies in
effect for officers of the Company generally at any time during the 120-day
period immediately preceding the Effective Date or, if more favorable to
the Executive, as in effect generally at any time thereafter with respect
to other peer executives of the Company and its Affiliated Companies.
3. The Executive's employment shall terminate under the following
circumstances:
(a) Upon the Executive's death during the Employment Period.
(b) If the Company determines in good faith that Disability of the
Executive has occurred during the Employment Period (pursuant to the definition
of Disability set forth below), it may give to the Executive written notice in
accordance with Section 13 of this Agreement of its intention to terminate the
Executive's employment. In such event, the Executive's employment with the
Company shall terminate effective on the 30th day after receipt of such notice
by the Executive (the "Disability Effective Date"), provided that, within the 30
days after such receipt, the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Executive from the Executive's duties
with the Company on a full-time basis for 180 consecutive business days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers and
reasonably acceptable to the Executive or the Executive's legal representative.
(c) The Company may terminate the Executive's employment during the
Employment Period for Cause. For purposes of this Agreement, "Cause" shall
mean:
(i) the willful and continued failure of the Executive to perform
substantially the Executive's duties with the Company or one of its
Affiliated Companies (other than any such failure resulting from incapacity
due to physical or mental illness); provided, however, that if any such
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Cause relates to the Executive's obligations under this Agreement or is
otherwise susceptible to cure, the Company shall not terminate the
Executive's employment hereunder unless the Company first gives the
Executive written notice of its intention to terminate and of the specific
grounds for such termination, and the Executive has not, within 20 business
days following receipt of the notice, cured such Cause, or in the event
such Cause is not susceptible to cure within such 20 business day period,
the Executive has not taken all reasonable steps within such 20 business
day period to cure such Cause as promptly as practicable thereafter; or
(ii) the willful engaging by the Executive in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the Company;
or
(iii) the Executive's conviction of a felony involving dishonesty or
moral turpitude.
For purposes of this Section 3(c), no act or failure to act on the part of
the Executive shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or upon the instructions of the Chief Executive Officer or
a senior officer of the Company or based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Company. The cessation
of employment of the Executive shall not be deemed to be for Cause unless and
until there shall have been delivered to the Executive a copy of the resolution
duly adopted by the affirmative vote of not less than three-quarters of the
entire membership of the Board at a meeting of the Board called and held for
such purpose (after reasonable notice is provided to the Executive and the
Executive is given an opportunity, together with counsel, to be heard before the
Board), finding that, in the good faith opinion of the Board, the Executive is
guilty of the conduct described in subparagraphs (i) or (ii) above, and
specifying the particulars thereof in detail.
(d) The Executive's employment may be terminated by the Executive for Good
Reason. For purposes of this Agreement, "Good Reason" shall mean:
(i) the assignment to the Executive of any duties inconsistent in any
adverse respect with the Executive's position (including offices, titles
and reporting requirements), authority, duties or responsibilities as
contemplated by Section 2(a) of this Agreement, or any other action by the
Company which results in a diminution in such position, authority, duties
or responsibilities; or
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(ii) any failure by the Company to comply with any of the provisions
of Section 2(c) of this Agreement; or
(iii) the Company's requiring the Executive to be based at any office
or location other than as provided in Section 2(a) hereof; or
(iv) any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement.
excluding, for purposes of clauses (i) to (iv) above, an isolated, insubstantial
and inadvertent action not taken in bad faith which is remedied by the Company
promptly after receipt of notice thereof given by the Executive.
(e) Notice of Termination. Any termination by the Company for Cause, or by
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the Executive for Good Reason, shall be communicated by Notice of Termination to
the other party hereto given in accordance with Section 13 of this Agreement.
For purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) to the extent applicable, sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated and (iii) if the Date of Termination
(as defined below) is other than the date of receipt of such notice, specifies
the termination date (which date shall be not more than thirty days after the
giving of such notice). The failure by the Executive or the Company to set
forth in the Notice of Termination any fact or circumstance which contributes to
a showing of Good Reason or Cause shall not waive any right of the Executive or
the Company, respectively, hereunder, or preclude the Executive or the Company,
respectively, from asserting such fact or circumstance in enforcing the
Executive's or the Company's rights hereunder.
(f) Date of Termination. "Date of Termination" means (i) if the
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Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt during the Employment Period of
the Notice of Termination or any later date specified therein, as the case may
be, (ii) if the Executive's employment is terminated by the Company other than
for Cause or Disability, the Date of Termination shall be the date during the
Employment Period on which the Company notifies the Executive of such
termination, (iii) if the Executive's employment is terminated by reason of
death or Disability, the Date of Termination shall be the date during the
Employment Period of the death of the Executive or the Disability Effective
Date, as the case may be, and (iv) if the Executive resigns for reasons that do
not constitute Good Reason, the Date of Termination shall be the last day of the
month during the Employment Period in which such resignation occurs.
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4. If, during the Employment Period, the Company shall terminate the
Executive's employment other than for Cause or Disability, or the Executive
shall terminate employment for Good Reason, then:
(a) the Company shall pay to the Executive in a lump sum in cash within 30
days after the Date of Termination the aggregate of the following amounts:
(i) the sum of (A) the Executive's Annual Base Salary through the
Date of Termination to the extent not theretofore paid, (B) the product of
(x) the Annual Incentive and (y) a fraction, the numerator of which is the
number of days in the current fiscal year through the Date of Termination,
and the denominator of which is 365, and (C) any compensation previously
deferred by the Executive (together with any accrued interest or earnings
thereon) and any accrued vacation pay, in each case to the extent not
theretofore paid (the sum of the amounts described in clauses (A), (B), and
(C) shall be hereinafter referred to as the "Accrued Obligations"); and
(ii) an amount equal to the product of (A) the lesser of (x) two or
(y) the number of years and fractions thereof (rounded up to the nearest
whole month) between the Date of Termination and the Executive's 65th
birthday, and (B) the sum of (x) the Executive's Annual Base Salary at the
rate in effect immediately prior to the Effective Date, and (y) the Annual
Incentive.
(b) the Company shall pay to the Executive in a lump sum in cash within 60
days after the Date of Termination an amount equal to (A) the contributions the
Company would have made for the benefit of the Executive to the Company's
Salaried Pension Plan and the Company's Salaried Pension Plan, assuming the
Executive continued as an employee of the Corporation for a period of two years
beginning on the Executive's Date of Termination (or until the Executive's 65th
birthday, if sooner), and during such period contributed six percent of his
Annual Base Salary (as in effect immediately prior to the Date of Termination)
to the Salaried 401(k), and (B) the total of the interest payable on each such
contribution from the date such contribution would have been made to the end of
such period, calculated at the interest crediting rate in effect on the Date of
Termination under the Salaried Pension Plan Plan;
(c) for two years after the Executive's Date of Termination (or until the
Executive's 65th birthday, if sooner), or for any longer period as may be
required by the terms of the appropriate plan, program, practice or policy, the
Company shall provide benefits to the Executive and/or the Executive's family at
least equal to those which would have been provided to them in accordance with
the plans, programs, practices and policies described in Section 2(c)(iv) of
this Agreement if the Executive's employment had not been terminated or, if more
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favorable to the Executive, as in effect generally at any time thereafter with
respect to other peer executives of the Company and its Affiliated Companies and
their families, at no additional cost to the Executive other than the cost of
such benefits to the Executive as in effect immediately prior to the Date of
Termination; provided, however, that if the Executive becomes reemployed with
another employer and is eligible to receive medical or other welfare benefits
under another employer-provided plan, the medical and other welfare benefits
described herein shall be secondary to those provided under such other plan
during such applicable period of eligibility;
(d) the Company shall, at its sole expense as incurred, provide the
Executive with up to $25,000 of outplacement services, the scope and provider of
which shall be selected by the Executive in his sole discretion;
(e) the Executive shall receive two years of age and service credit for all
purposes under his or her Officer Retirement Agreement commencing on Date of
Termination (or age and service credit from the Date of Termination until the
Executive's 65th birthday if such birthday occurs within two years of Date of
Termination), and such agreement shall remain in effect for all purposes;
provided, however, that the non-competition clause in such agreement shall be
waived for all purposes;
(f) all awards made or granted under any of the Company's stock-based
compensation plans shall be exercisable or payable in accordance with the terms
of such plans; and
(g) to the extent not theretofore paid or provided, the Company shall
timely pay or provide to the Executive any other amounts or benefits required to
be paid or provided or which the Executive is eligible to receive under any
plan, program, policy or practice or contract or agreement of the Company or its
Affiliated Companies (such other amounts and benefits shall be hereinafter
referred to as the "Other Benefits").
5. If the Executive's employment is terminated by reason of the
Executive's death during the Employment Period, this Agreement shall terminate
without further obligations to the Executive's legal representatives under this
Agreement, other than for the payment of Accrued Obligations and the timely
payment or provision of Other Benefits. Accrued Obligations shall be paid to
the Executive's estate or beneficiary, as applicable, in a lump sum in cash
within 30 days of the Date of Termination. With respect to the provision of
Other Benefits (as defined in Section 4 (g)), such term as utilized in this
Section 5 shall include, without limitation, and the Executive's estate and/or
beneficiaries shall be entitled to receive, benefits at least equal to the most
favorable benefits provided by the Company and Affiliated Companies to the
estates and beneficiary of peer executives of the Company and such Affiliated
Companies under such plans, programs, practices and policies relating to death
benefits, if any, as in effect
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with respect to other peer executives and their beneficiaries at any time during
the 120-day period immediately preceding the Effective Date or, if more
favorable to the Executive's estate and/or the Executive's beneficiaries, as in
effect on the date of the Executive's death with respect to other peer
executives of the Company and its Affiliated Companies and their beneficiaries.
6. If the Executive's employment is terminated by reason of the Executive's
Disability during the Employment Period, this Agreement shall terminate without
further obligations to the Executive, other than for payment of Accrued
Obligations and the timely payment or provision of Other Benefits. Accrued
Obligations shall be paid to the Executive in a lump sum in cash within 30 days
of the Date of Termination. With respect to the provision of Other Benefits (as
defined in Section 4 (g), such term as utilized in this Section 6 shall include,
and the Executive shall be entitled after the Disability Effective Date to
receive, disability and other benefits at least equal to the most favorable of
those generally provided by the Company and its affiliated accompanies to
disabled executives and/or their families in accordance with such plans,
programs, practices and policies relating to disability, if any, as in effect
generally with respect to other peer executives and their families at any time
during the 120-day period immediately preceding the Effective Date or, if more
favorable to the Executive and/or the Executive's family, as in effect at any
time thereafter generally with respect to other peer executives of the Company
and its Affiliated Companies and their families.
7. If the Executive's employment shall be terminated for Cause during the
Employment Period, or if the Executive voluntarily terminates employment for
reasons that do not constitute Good Reason during the Employment Period, this
Agreement shall terminate without further obligations to the Executive, other
than for payment to the Executive (a) his Annual Base Salary through the Date of
Termination, (b) the amount of any compensation previously deferred by the
Executive, and (c) Other Benefits, in each case to the extent theretofore
unpaid.
8. Nothing in this Agreement shall prevent or limit the Executive's
continuing or future participation in any plan, program, policy or practice
provided by the Company or any of its Affiliated Companies and for which the
Executive may qualify, nor, subject to Section 13 (f), shall anything herein
limit or otherwise affect such rights as the Executive may have under any
contract or agreement with the Company or any of its Affiliated Companies.
Amounts which are vested benefits or which the Executive is otherwise entitled
to receive under any plan, policy, practice or program of or any contract or
agreement with the Company or any of its Affiliated Companies at or subsequent
to the Date of Termination shall be payable in accordance with such plan,
policy, practice or program or contract or agreement except as explicitly
modified by this Agreement; provided, however, that payments under this
Agreement shall be in lieu of any payments to which Executive may be entitled
under any Company severance plan for salaried employees.
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9. The Company's obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against the Executive or others. In no
event shall the Executive be obligated to seek other employment or take any
other action by way of mitigation of the amounts payable to the Executive under
any of the provisions of this Agreement and such amounts shall not be reduced
whether or not the Executive obtains other employment. The Company agrees to
pay as incurred, to the full extent permitted by law, all legal fees and
expenses which the Executive may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Company, the Executive or others of
the validity or enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof (including as a result of any
contest by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
Federal rate provided for in Section 7872(f) (2) (A) of the Internal Revenue
Code of 1986, as amended (the "Code"). except that the Executive shall pay his
own legal fees and expenses if any arbitrator or relevant trier-of-fact
determines that the Executive's claim or position was frivolous and without
reasonable foundation.
10. (a) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment or distribution by the Company
or its Affiliated Companies to or for the benefit of the Executive (whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but not including any additional payments required under
this Section 10) (a "Payment") would be subject to the excise tax imposed by
Section 4999 of the Code, or any interest or penalties are incurred by the
Executive with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Executive shall be entitled to receive from the Company
an additional payment (a "Gross-Up Payment") in an amount that allows Executive
to retain that part of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments after deducting from the Gross-up Payment all taxes (including,
without limitation, the Excise Tax on the payments, the Excise Tax on the Gross-
Up Payment, any income taxes and all interest and penalties imposed with respect
to any of such taxes). Notwithstanding the foregoing provisions of this
Section 10(a), if it shall be determined that the Executive is entitled to a
Gross-Up Payment, but that the Payments do not exceed 110% of the greatest
amount (the "Reduced Amount") that could be paid to the Executive such that the
receipt of Payments would not give rise to any Excise Tax, then no Gross-Up
Payment shall be made to the Executive and the Payments, in the aggregate, shall
be reduced to the Reduced Amount.
(b) Subject to the provisions of Section 10(c), all determinations required
to be made under this Section 10, including whether and when a Gross-
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Up Payment is required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determination, shall be made by
Price Waterhouse Coopers (the "Accounting Firm"), which shall provide detailed
supporting calculations both to the Company and the Executive within 15 business
days of the receipt of notice from the Executive that there has been a Payment,
or such earlier time as is requested by the Company. In the event that the
Accounting Firm is serving as accountant or auditor for the individual, entity
or group effecting the Change of Control, the Executive shall appoint another
nationally recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accounting
Firm hereunder). All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any Gross-Up Payment, as determined pursuant to this
Section 10, shall be paid by the Company to the Executive within five days of
the receipt of the Accounting Firm's determination. Any determination by the
Accounting Firm shall be binding upon the Company and the Executive. As a result
of the uncertainty in the application of Section 4999 of the Code at the time of
the initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which should have been made ("Underpayment"), consistent with
the calculations required to be made hereunder will not have been made by the
Company. In the event that the Company exhausts its remedies pursuant to Section
10(c), and the Executive thereafter is required to make a payment of any Excise
Tax, the Accounting Firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment shall be promptly paid by the Company to or
for the benefit of the Executive.
(c) The Executive shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after the Executive is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. The Executive
shall not pay such claim prior to the expiration of the 30-day period following
the date on which it gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is due).
If the Company notifies the Executive in writing prior to the expiration of such
period that it desires to contest such claim, the Executive shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim;
(ii) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such
claim by an attorney reasonably selected by the Company;
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(iii) cooperate with the Company in good faith in order effectively
to contest such claim; and
(iv) permit the Company to participate in any proceedings relating to
such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions
of this Section 9(c), the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forgo any
and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct the Executive to pay the tax claimed and sue for a refund or contest the
claim in any permissible manner, and the Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and sue for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis and shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such advance;
and further provided that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
the Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 10(c), the Executive becomes entitled to receive any
refund with respect to such claim, the Executive shall (subject to the Company's
complying with the requirements of Section 10(c)) promptly pay to the Company
the amount of such refund (together with any interest paid or credited thereon
after taxes applicable thereto). If, after the receipt by the Executive of an
amount advanced by the Company pursuant to Section 10(c), a determination is
made that the Executive shall not be entitled to any refund with respect to such
claim and the Company does not notify the Executive in writing of its intent to
contest such denial of refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not be
14
required to be repaid and the amount of such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid.
11. Confidential Information.
------------------------
(a) The Executive shall hold in a fiduciary capacity for the benefit of the
Company all secret or confidential information, knowledge or data relating to
the Company or any of its Affiliated Companies, and their respective businesses,
which shall have been obtained by the Executive during the Executive's
employment by the Company or any of its Affiliated Companies and which shall not
be or become public knowledge (other than by acts by the Executive or
representatives of the Executive in violation of this Agreement). After
termination of the Executive's employment with the Company, the Executive shall
not, without the prior written consent of the Company or as may otherwise be
required by law or legal process, communicate or divulge any such information,
knowledge or data to anyone other than the Company and those designated by it.
In no event shall an asserted violation of the provisions of this Section 11
constitute a basis for deferring or withholding any amounts otherwise payable to
the Executive under this Agreement.
(b) Without intending to limit the remedies available to the Company, the
Executive acknowledges that a breach of any of the covenants contained in this
Section 11 may result in material and irreparable injury to the Company and the
Affiliated Companies for which there is no adequate remedy at law, that it will
not be possible to measure damages for such injuries precisely and that, in the
event of such a breach or threat thereof, the Company shall be entitled to seek
a temporary restraining order and/or a preliminary or permanent injunction
restraining the Executive from engaging in activities prohibited by this Section
11 or such other relief as may be required specifically to enforce the
covenants.
12. Successors.
----------
(a) This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
(c) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to assume expressly and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place.
15
As used in this Agreement, "Company" shall mean the Company as hereinbefore
defined and any successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of law, or otherwise.
13. Miscellaneous.
-------------
(a) This Agreement shall be governed by and construed in accordance with
the laws of the State of Georgia, without reference to principles of conflict of
laws. The captions of this Agreement are not part of the provisions hereof and
shall have no force or effect. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing and
shall be given by hand delivery to the other party or by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive: [FirstName]
------------------- [Address1]
[City] [PostalCode]
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If to the Company: Georgia-Pacific Corporation
----------------- 133 Peachtree Street, N.E.
Atlanta, GA 30303
Attention: General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) If the final determination of a court or arbitral panel of competent
jurisdiction declares, after the expiration of the time within which judicial or
arbitral review (if permitted) of such determination may be perfected, that any
term or provision of this Agreement is invalid or unenforceable, (i) the
remaining terms and provisions of this Agreement shall be unimpaired and (ii)
the invalid or unenforceable term or provision shall be deemed replaced by a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision.
(d) The Company may withhold from any amounts payable under this Agreement
such Federal, state, local or foreign taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to Section 3(d)(i)-(iv) of this Agreement, shall not be deemed to be a
waiver of such provision or right or any other provision or right of this
Agreement.
(f) The Executive and the Company acknowledge that, except as may otherwise
be provided under any other written agreement between the Executive and the
Company, prior to the Effective Date the employment of the Executive by the
Company is "at will" and, subject to Section 1(a), the Executive's employment
and/or this Agreement may be terminated prior to the Effective Date by either
the Executive, or by vote of the Board of Directors of the Company, in which
case the Executive shall have no further rights under this Agreement; provided,
that this Agreement may not be terminated by the Company if it is reasonably
demonstrated by the Executive that such termination (i) was at the request of a
third party who has taken steps reasonably calculated to effect a Change of
Control or (ii) otherwise arose in connection with or anticipation of a Change
of Control. From and after the Effective Date, this Agreement shall supersede
any other agreement between the parties with respect to the subject matter
hereof.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and, pursuant to the authorization of its Board of Directors, the Company
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has caused these presents to be executed in its name on its behalf, all as of
the day and year first above written.
-------------------------------
[LastName]
GEORGIA-PACIFIC CORPORATION
By
----------------------------
A. D. Correll
Chairman, Chief Executive Officer
and President
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Change of Control Agreement - Georgia-Pacific Corp.
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