EXHIBIT 10.7
CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT, made as of the 11th day of June, 2001, by and between Bowater
Incorporated, a Delaware corporation having a mailing address of 00 Xxxx
Xxxxxxxxxx Xxx, X.X. Xxx 0000, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 (the
"Corporation"), and Xxxxxx X. Xxxxxxx, 000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx
00000, (the "Executive").
WHEREAS, the Corporation considers it essential to the best interests
of its stockholders to xxxxxx the continued employment of key management
personnel; and
WHEREAS, the uncertainty attendant to a change in control of the
Corporation may result in the departure or distraction of management personnel
to the detriment of the Corporation and its stockholders; and
WHEREAS, the Board of Directors of the Corporation (the "Board") has
determined that appropriate steps should be taken to reinforce and encourage the
continued attention and dedication of members of the Corporation's management,
including Executive, to their assigned duties in the event of a change in
control of the Corporation.
NOW THEREFORE, it is hereby agreed as follows:
1. DEFINITIONS
The following terms shall have the meanings assigned to them below.
(a) "Accrued Compensation" shall mean all amounts earned or
accrued through the Termination Date but not paid as of the
Termination Date including (i) the Base Amount, (ii)
reimbursement for reasonable and necessary expenses incurred
by the Executive on behalf of the Corporation during the
period ending on the Termination Date, (iii) vacation pay, and
(iv) any bonus award with respect to the Corporation's fiscal
year ended prior to the Termination Date.
(b) "Acquiring Person" shall mean the Beneficial Owner, directly
or indirectly, of securities representing 20% or more of the
combined voting power of the Corporation's then outstanding
securities, not including (except as provided in clause (i) of
the next sentence) securities of such Beneficial Owner
acquired pursuant to an agreement allowing the acquisition of
up to and including 50% of such voting power approved by
two-thirds of the members of the Board who are Board members
before the Person becomes Beneficial Owner, directly or
indirectly, of securities representing 5% or more of the
combined voting power of the Corporation's then outstanding
securities. Notwithstanding the foregoing, (i) securities
acquired pursuant to an agreement described in the preceding
sentence will be included in determining whether a Beneficial
Owner is an
Acquiring Person if, subsequent to the approved acquisition,
the Beneficial Owner acquires 5% or more of such voting power
other than pursuant to such an agreement so approved; and (ii)
a Person shall not be an Acquiring Person if such Person is
eligible to and files a Schedule 13G under the Exchange Act
with respect to such Person's status as a Beneficial Owner of
all securities of the Corporation of which the Person is a
Beneficial Owner.
(c) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act, as in effect on the date
hereof.
(d) "Base Amount" shall mean the greater of (i) the Executive's
annual base salary at the rate in effect immediately prior to
the Change in Control and (ii) the Executive's annual base
salary at the rate in effect on the Termination Date.
(e) "Beneficial Owner" of securities shall mean (i) a Person who
beneficially owns such securities, directly or indirectly, or
(ii) a Person who has the right to acquire such securities
(whether such right is exercisable immediately or only with
the passage of time) pursuant to any agreement, arrangement or
understanding (whether or not in writing) or upon the exercise
of conversion rights, exchange rights, warrants, options or
otherwise.
(f) "Bonus Amount" shall mean an amount equal to the maximum
amount the Executive could have been paid under the
Corporation's annual or other short term cash incentive plans
in effect immediately prior to the Change in Control for the
fiscal year in which the Change in Control occurred or, if
higher, the maximum amount under such plans in effect at the
Termination Date based on the Executive's then base salary and
position.
(g) "Cause" shall mean and be limited to the Executive's gross
negligence, willful misconduct or conviction of a felony,
which has a demonstrable and material adverse effect upon the
Corporation; provided that if Cause exists by virtue of the
Executive's gross negligence or willful misconduct that is
capable of being cured, the Corporation shall give the
Executive written notice of the alleged negligence or
misconduct and if the Executive cures the negligence or
misconduct within thirty (30) days after receipt of the
notice, such Cause shall cease to exist and the Corporation
shall not terminate the Executive's employment therefor. The
Executive shall be deemed to have been terminated for Cause as
of the effective date stated in a Notice of Termination
delivered by the Corporation to the Executive, which shall not
be delivered before the end of the thirty (30) day period
described in the preceding sentence, if applicable. The Notice
of Termination must be accompanied by a certified copy of a
resolution duly adopted by the affirmative vote of not less
than three-quarters (3/4) of the membership of the Board after
reasonable notice to the Executive and an opportunity for the
Executive, with the Executive's counsel present, to be heard
before the Board, finding that, in the good faith opinion of
the Board, the
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Executive was guilty of conduct constituting Cause hereunder
and setting forth in reasonable detail the facts and
circumstances claimed to provide the basis for the Executive's
termination.
(h) "Change in Control" shall be deemed to have occurred upon:
(i) the date that any Person is or becomes an Acquiring
Person;
(ii) the date that the Corporation's stockholders approve
a merger, consolidation or reorganization of the
Corporation with another corporation or other Person,
unless, immediately following such merger,
consolidation or reorganization, (A) at least 50% of
the combined voting power of the outstanding
securities of the resulting entity would be held in
the aggregate by the stockholders of the Corporation
as of the record date for such approval (provided
that securities held by any individual or entity that
is an Acquiring Person, or who would be an Acquiring
Person if 5% were substituted for 20% in the
definition of such term, shall not be counted as
securities held by the stockholders of the
Corporation, but shall be counted as outstanding
securities for purposes of this determination), or
(B) at least 50% of the board of directors or similar
body of the resulting entity are Continuing
Directors;
(iii) the date the Corporation sells or otherwise transfers
all or substantially all of the Corporation's assets
to another corporation or other Person, unless,
immediately following such sale or transfer, (A) at
least 50% of the combined voting power of the
outstanding securities of the acquiring entity would
be held in the aggregate by the stockholders of the
Corporation as of the record date for such approval
(provided that securities held by any individual or
entity that is an Acquiring Person, or who would be
an Acquiring Person if 5% were substituted for 20% in
the definition of such term, shall not be counted as
securities held by the stockholders of the
Corporation, but shall be counted as outstanding
securities for purposes of this determination), or
(B) at least 50% of the board of directors or similar
body of the acquiring entity are Continuing
Directors; or
(iv) the date on which less than 50% of the total
membership of the Board consists of Continuing
Directors.
(i) "Code" shall mean the United States Internal Revenue Code of
1986, amended.
(j) "Continuing Directors" shall mean any member of the Board who
(i) was a member of the Board immediately prior to the date of
the event that would constitute a Change in Control, and any
successor of a Continuing Director while such successor is a
member of the Board, (ii) who is not an Acquiring Person or
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an Affiliate or Associate of an Acquiring Person and (iii) is
recommended or elected to succeed the Continuing Director by a
majority of the Continuing Directors.
(k) "Corporation" shall mean Bowater Incorporated; provided that,
if the Executive is employed by a subsidiary of the
Corporation, "Corporation" shall mean such subsidiary of the
Corporation for purposes of references to the Executive's
compensation and benefits, and the plans, programs and
arrangements pursuant to which compensation and benefits are
provided.
(l) "Disability" shall mean a physical or mental condition that is
defined as a disability in the Corporation's long term
disability insurance plan covering the Executive immediately
prior to the Change in Control.
(m) "Employer Match" shall mean an amount equal to the maximum
matching contribution the Corporation could have made
(regardless of actual circumstances) on the Executive's behalf
to the Corporation's Statutory and non-Statutory defined
contribution or savings plans for the fiscal year in which the
Change in Control occurred, or, if higher, the maximum
matching contribution the Corporation could have made for the
fiscal year in which the Executive's employment terminated.
(n) "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as amended.
(o) "Good Reason" shall mean:
(i) a change in the Executive's status, title, position
or responsibilities (including in reporting line
relationships) that, in the Executive's reasonable
judgment, represents a substantial adverse change
from the Executive's status, title, position or
responsibilities as in effect at any time within 180
days preceding the date of a Change in Control or at
any time thereafter; the assignment to the Executive
of any duties or responsibilities that, in the
Executive's reasonable judgment, are inconsistent
with the Executive's status, title, position or
responsibilities as in effect at any time within 180
days preceding the date of a Change in Control or any
time thereafter; or any removal of the Executive from
or failure to reappoint or reelect the Executive to
any office or position held prior to the Change in
Control, except in connection with the termination of
the Executive's employment for Disability, Cause, as
a result of the Executive's death or by the Executive
other than for Good Reason;
(ii) the failure by the Corporation to provide the
Executive with compensation and benefits, in the
aggregate, at least equal (in terms of benefit levels
and/or reward opportunities which opportunities will
be evaluated in light of the performance requirements
therefor) to those provided for under the
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employee compensation and benefit plans, programs and
practices in which the Executive was participating at
any time within one-hundred eighty (180) days
preceding the date of a Change in Control or at any
time thereafter;
(iii) the reduction of the Executive's salary as in effect
on the date of the Change in Control or any time
thereafter;
(iv) a failure by the Corporation to obtain from any
Successor its assent to this Agreement contemplated
by Section 12 hereof; or
(v) the relocation of the principal office at which the
Executive is to perform services on behalf of the
Corporation to a location more than thirty-five (35)
miles from its location immediately prior to the
Change in Control or a substantial increase in the
Executive's business travel obligations subsequent to
the Change in Control.
(p) "Notice of Termination" shall mean a notice sent by either the
Executive or the Corporation to the other party terminating
the Executive's employment as of a certain date and setting
forth the reasons therefor.
(q) "Person" shall mean any individual, corporation, partnership,
group, association or other "person" as such term is used in
Sections 13(d) and 14(d) of the Exchange Act.
(r) "Pro Rata Bonus" shall mean an amount equal to the Bonus
Amount multiplied by a fraction, the numerator of which is the
number of months and partial months through the Termination
Date and the denominator of which is twelve (12).
(s) "Statutory Plan" shall mean a retirement plan that is intended
to be qualified (for purposes of United States tax law) or
registered (for purposes of Canadian tax law), as the case may
be.
(t) "Successor" shall mean the direct or indirect successor by
purchase, merger, consolidation or otherwise, to all or
substantially all of the business and/or assets of the
Corporation.
(u) "Termination Date" shall mean (i) in the case of the
Executive's death, the date of death, (ii) in the case of a
termination by the Executive in accordance with Section 3, the
last day of employment as set forth in the Notice of
Termination given by the Executive, (iii) in the case of a
termination by the Corporation for Cause, a date not less than
thirty (30) days after receipt of the Notice of Termination by
the Executive, (iv) in the case of a termination by the
Corporation due to the Executive's Disability, the date not
less than thirty (30) days after receipt of the Notice of
Termination by the Executive, provided that the Executive
shall not have returned to the full-time performance of duties
within thirty (30) days after such receipt, and (v) in all
other cases, the date specified in the Notice
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of Termination or if no Notice of Termination is sent, the
last day of the Executive's employment (an Executive receiving
periodic severance pay is no longer considered employed for
the purposes of this Agreement).
2. TERM OF AGREEMENT
This Agreement shall commence as of the date hereof and shall continue
in effect until the date the Executive's employment is terminated (an
Executive being paid periodic severance benefits is no longer
considered employed for these purposes); provided, however, that if the
Executive's employment is terminated following, or in anticipation of,
a Change in Control, the term shall continue in effect until all
payments and benefits have been made or provided to the Executive
hereunder.
3. EXECUTIVE'S RIGHT OF TERMINATION
After a Change in Control and for thirty-six (36) months thereafter,
the Executive shall have the right to terminate employment for Good
Reason by sending a Notice of Termination to the Corporation setting
forth in reasonable detail the facts and circumstances claimed to
constitute Good Reason. In addition, on the first (1st) anniversary
date of the Change in Control and for a period of thirty (30) days
thereafter, the Executive shall have the unconditional right to
terminate employment by giving written notice to the Corporation within
such thirty (30) day period. If the Executive's employment is
terminated in accordance with the provisions of this Section 3, the
Executive shall be entitled to the compensation and benefits described
in Section 4(b) below.
4. COMPENSATION UPON CHANGE IN CONTROL FOLLOWED BY CERTAIN TERMINATIONS
If the Executive's employment with the Corporation shall be terminated
within thirty-six (36) months following a Change in Control, the
Executive shall be entitled to the following compensation and benefits:
(a) If the Executive's employment is terminated (i) by
the Corporation for Cause or Disability, (ii) by reason of the
Executive's death or (iii) by the Executive other than in accordance
with Section 3, the Corporation shall pay to the Executive the Accrued
Compensation and, if such termination is other than by the Corporation
for Cause, the Pro Rata Bonus, computed as of the applicable
Termination Date.
(b) If the Executive's employment with the Corporation
shall be terminated (x) by the Corporation for any reason other than
for Cause or Disability, or (y) by the Executive pursuant to the
provisions of Section 3, the Executive shall be entitled to the
following as of the applicable Termination Date:
(i) the Accrued Compensation and the Pro-Rata Bonus;
(ii) an amount equal to three (3) times the Base Amount;
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(iii) an amount equal to three (3) times the Bonus Amount;
(iv) an amount equal to three (3) times the Employer
Match;
(v) An amount equal to 30% of the Base Amount for certain
lost benefits;
(vi) An amount equal to the present value of the
additional retirement benefits the Executive would
have earned under the Corporation's defined benefit
retirement plans (Statutory and non-Statutory) for
the three (3) years following the Termination Date,
computed assuming the following:
(A) the Executive's salary continues at the Base
Amount with a bonus or target bonus equal to
the Bonus Amount;
(B) the payment of the Executive's retirement
benefits commences as of the later of (x)
the Executive's age three (3) years after
the Termination Date or (y) the earliest
retirement age (without regard to service)
allowed under the Statutory Plan applicable
to the Executive;
(C) all vesting requirements are waived;
(D) mortality and interest rate assumptions
applicable to the computation of lump sum
values in the applicable Statutory Plan are
used; and
(E) the benefits are paid in the form of a
single life annuity;
(vii) As of the Executive's Termination Date, or, if later,
when the Executive attains age fifty (50), the
Executive (and the Executive's spouse or surviving
spouse and dependents) will be provided the retiree
health care and life insurance coverage provided by
the Corporation to executive retirees as of the date
of the Change in Control. If and to the extent that
the benefits described in this paragraph cannot be
provided under the Corporation's plans or programs
without the benefits provided thereunder being
taxable to the Executive, the Corporation shall
procure an insurance policy or policies on
substantially similar terms and conditions for the
Executive and the Executive's spouse or surviving
spouse and dependents, or if such policy or policies
cannot be obtained, shall provide a lump sum payment
equal to the value of the lost benefits; and
(viii) The Corporation shall pay for or provide the
Executive either: (i) individual out-placement
assistance as offered by a member firm of the
Association of Out-Placement Consulting Firms, or
(ii) a cash payment of $20,000 in lieu of individual
outplacement services, as elected by the Executive at
any time within twelve (12) months after the
Executive's termination of employment.
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5. EXCISE TAX GROSS-UP
If any payment or benefit made available to the Executive in connection
with a Change in Control (including, without limitation, any payment
made pursuant to any long-term incentive plans, stock option or equity
participation right plans) or termination of the Executive's employment
following a Change in Control (in either category, a "Change in Control
Payment") is subject to the Excise Tax (as hereinafter defined), the
Corporation shall pay to the Executive additional amounts (the "Gross
Up Amounts") such that the total amount of all Change in Control
Payments net of the Excise Tax shall equal the total amount of all
Change in Control Payments to which the Executive would have been
entitled if the Excise Tax had not been imposed. For purposes of this
Section 5, the term "Excise Tax" shall mean the tax imposed by Section
4999 of the Code and any similar tax that may hereafter be imposed.
The Gross Up Amounts due to the Executive under this Section 5 shall be
estimated by a nationally recognized firm of certified public
accountants (other than the firm that audited the financial statements
of the Corporation for the most recently preceding fiscal year)
selected by the individual holding the position of Chief Financial
Officer immediately before the Change in Control or such officer's
designee, at any time that the Executive is to receive a Change in
Control Payment. The Gross Up Amounts will be based upon the following
assumptions:
(a) all Change in Control Payments shall be deemed to be
"parachute payments" within the meaning of Section
280(G)(b)(2) of the Code, and all "excess parachute payments"
shall be deemed to be subject to the Excise Tax except to the
extent that, in the opinion of the certified public
accountants charged with estimating the Gross Up Amounts for
the Executive under this Section 5, such Change in Control
Payments are not subject to the Excise Tax; and
(b) the Executive shall be deemed to pay federal, state and local
taxes at the highest marginal rate of taxation for the
applicable calendar year.
The estimated Gross Up Amount due the Executive with respect to any
Change in Control Payment pursuant to this Section 5 shall be paid to
the Executive in a lump sum not later than thirty (30) business days
after such Change in Control Payment is provided to the Executive. In
the event that the Gross Up Amount is less than the amount actually due
to the Executive under this Section 5, the amount of any such shortfall
shall be paid to the Executive within ten (10) days after the existence
of the shortfall is discovered. In the event the Gross Up Amount is
more than the amount actually due the Executive under this Section 5,
the Executive shall repay the amount of such overpayment to the
Corporation within a reasonable time after the overpayment is
discovered.
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6. LUMP SUM PENSION OPTION
If the Executive is entitled to the payments and benefits in Section
4(b), then, in accordance with the election requirements described in
Section 7, the Executive shall be entitled to elect a lump sum payment
of the present value of any retirement benefits to which the Executive
is entitled under any of the Corporation's non-Statutory retirement
plans computed based upon the same assumptions listed in Section
4(b)(vi) above, except 4(b)(vi)(A). The Corporation's non-Statutory
retirement plans are hereby deemed amended as necessary to conform to
the provisions of this Section 6. To the extent that a payment on
account of the foregoing may not be made under a non-Statutory plan,
the Corporation shall make such payment separately in lieu of payment
under such plan.
7. DEFERRAL OR LUMP SUM ELECTION
During each December after the date of this Agreement (the "Election
Period"), the Executive may, in writing, direct the Corporation to pay
any amounts to which the Executive is entitled under Section 4(b) in
equal annual installments not to exceed ten (10), with each installment
including accrued interest at the Federal short-term rate (as set under
Section 1274(d) of the Code as in effect at the time such installment
is paid), with the first such installment payable within ten (10)
business days of the Termination Date and each successive installment
payable on the anniversary of the Termination Date (the "Deferred
Payment Election"). During the Election Period, the Executive may also
elect to be paid the amount described in Section 6 in a lump sum (the
"Lump Sum Election"). Neither a Deferred Payment Election nor a Lump
Sum Election, once made, can be revoked except during an Election
Period. Notwithstanding the foregoing, however, no Deferred Payment
Election or Lump Sum Election can be made or revoked by the Executive
during an Election Period that occurs after a Change in Control or at a
time when, in the judgment of the Corporation, a Change in Control may
occur within sixty (60) days after such Election Period.
8. NO MITIGATION REQUIRED
The Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement, nor shall any payment or
benefit provided for in this Agreement be offset by any compensation
earned by the Executive as the result of employment by another
employer, by retirement benefits (provided that the foregoing shall not
cause Section 6 to result in a duplication of benefits provided under
any retirement plan), or be offset against any amount claimed to be
owed by the Executive to the Corporation, or otherwise.
9. INTEREST
If any payment to the Executive required by this Agreement is not made
within the time for such payment specified herein, the Corporation
shall pay to the Executive interest on such payment at the legal rate
payable from time to time upon judgments in the State of Delaware from
the date such payment is payable under the terms hereof until paid.
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10. NON-COMPETE CANCELLATION
If the Executive is entitled to the payments and benefits described in
Section 4(b), then any agreement by the Executive not to compete with
the Corporation or its Affiliates after the Executive's Termination
Date shall be null and void and any such agreement shall be deemed to
be amended accordingly.
11. EXECUTIVE'S EXPENSES
The Corporation shall pay or reimburse the Executive for all costs,
including reasonable attorney's, accountants' and actuary's fees and
expenses, incurred by the Executive (i) to confirm the Executive's
rights to and amounts of payments hereunder, (ii) to contest or dispute
any termination of the Executive's employment following a Change in
Control or seek to obtain or enforce any right or benefit provided by
this Agreement in litigation or arbitration, or (iii) in connection
with any audit by a taxing authority related to any payment or benefit
hereunder, or any subsequent contest or litigation relating to the tax
treatment of such payment or benefit. Upon demand therefor, the
Corporation shall advance to the Executive any amount as to which the
Executive reasonably believes he or she will be entitled pursuant to
this Section 11 for costs that the Executive has incurred or will incur
during the ninety (90) days following such demand.
12. BINDING AGREEMENT
This Agreement shall inure to the benefit of and be enforceable by the
Executive, and the Executive's heirs, executors, administrators,
successors and assigns. This Agreement shall be binding upon the
Corporation, its Successors and assigns. The Corporation shall require
any Successor to assume and agree to perform this Agreement in
accordance with its terms. The Corporation shall obtain such assumption
and agreement prior to the effectiveness of any such succession.
13. NOTICE
Any notices and all other communications provided for herein shall be
in writing and shall be delivered personally or sent by facsimile
transmission (with written confirmation sent at the same time), prepaid
air courier or prepaid certified or registered mail. Any such notice
shall be deemed to have been given (a) when received, if delivered in
person, sent by facsimile transmission, or sent by prepaid air courier,
or (b) three (3) business days following the mailing thereof, if mailed
by prepaid certified or registered mail, return receipt requested,
addressed to the respective addresses set forth on the first page of
this Agreement or to such other address as either party may have
furnished to the other in writing in accordance herewith, except that
notices of change of address shall be effective only upon receipt. All
notices to the Corporation shall be addressed to the attention of the
Board with a copy to the General Counsel.
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14. SOLE SEVERANCE; OTHER BENEFITS
If the Executive is paid the entitlements due under Section 4(b), such
payments shall be in lieu of any other severance amounts to which the
Executive may be entitled under any other severance arrangement,
including under any employment agreement, severance pay plan, or
applicable legislation entitling the Executive to severance benefits.
However, the parties acknowledge that the benefits paid hereunder are
only exclusive as to other severance payments and that the Executive
may be entitled to other benefits or payments triggered by a Change in
Control under certain other of the Corporation's benefit or
compensation arrangements, including, without limitation, any long term
incentive plans, stock option plans or equity participation rights
plans.
15. AMENDMENTS; WAIVERS
No provision of this Agreement may be modified, waived or discharged
except in a writing specifically referring to such provision and signed
by the party against which enforcement of such modification, waiver or
discharge is sought. No waiver by either party hereto of the breach of
any condition or provision of this Agreement shall be deemed a waiver
of any other condition or provision at the same or any other time.
16. GOVERNING LAW
The validity, interpretation, construction and performance of this
Agreement shall be governed by the substantive laws of the State of
Delaware without regard to the choice of law provisions thereof.
17. VALIDITY
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
18. ARBITRATION
If the Executive so elects, any dispute or controversy arising under or
in connection with this Agreement shall be settled exclusively by
arbitration in Greenville, South Carolina, or at the Executive's
election in the city nearest to the Executive's principal residence
that has an office of the American Arbitration Association, by one
arbitrator in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator's
award in any court having jurisdiction. The Corporation hereby waives
its right to contest the personal jurisdiction or venue of any court,
federal or state, in an action brought to enforce this Agreement or any
award of an arbitrator hereunder which action is brought in the
jurisdiction in which such arbitration was conducted, or, if no
arbitration was elected, in which arbitration could have been conducted
pursuant to this Section 18.
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19. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
BOWATER INCORPORATED
By /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Chairman and Chief Executive Officer
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/s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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