Exhibit 10.9
DEFERRED COMPENSATION AGREEMENT
THIS AGREEMENT, entered into on March 2, 1990 and amended March 4, 1999
and February 24, 2000, by and between Wausau Paper Corp. (herein referred to as
the "Corporation") and San X. Xxx, Xx., an individual (herein referred to as
"Executive")is hereby amended as of December 16, 2005, effective as of January
1, 2005.
NOW, THEREFORE, the parties agree as follows:
1. Election to Defer. Executive may, in his discretion, elect to
defer all or any cash compensation (specified by amount or percentage of such
compensation) payable to him by the Corporation from time to time for service
to the Corporation as an employee by executing an election in the form set
forth in Exhibit A hereto (herein referred to as an "Election") and filing such
Election with the secretary of the Corporation (herein referred to as the
"Secretary"); provided, however, that no election to defer compensation
hereunder shall be permitted or otherwise effective with respect to
compensation attributable to services rendered by Executive after December 31,
2004. An Election shall be effective with respect to all cash compensation
specified on the election form filed with the Secretary by Executive which is
accrued and payable after the date the Election is received by the Secretary
and until the Election is amended or revoked. An Election hereunder may be
amended or revoked at any time by filing a subsequent Election with the
Secretary. Such amendment or revocation shall be effective with respect to
cash compensation accrued and payable on and after receipt of such new Election
by the Secretary.
2. Deferred Compensation Account. The Corporation shall maintain upon
its corporate books a deferred compensation account (herein referred to as the
"Account") with respect to any compensation deferred under this agreement. As
of the first day of each calendar month, the Corporation shall make the
following adjustments to the Account: (a) Subtract amounts paid from the
Account during the immediately preceding month; and (b) Add the amount of
compensation Executive has elected to defer under paragraph 1 which was
otherwise payable to Executive during the immediately preceding month. As of
the first day of each calendar year, the Corporation shall add to the Account
simple interest, calculated at a rate equal to average of the prime rate
published in The Wall Street Journal on the first business day of each calendar
quarter in the preceding calendar year, minus one percentage point, on the
average daily balance in the Account during the preceding year. The Account
created hereunder shall not represent any specific assets of the Corporation,
and the Corporation is not obligated by this provision to set aside any assets
in respect of the Account.
3. Distribution. Distribution of the amount reflected in the Account
shall be made in 5 annual installments with the first installment payment to be
made within the 60 day period following the date on which Executive ceases to
be a member of the Board of Directors of the Corporation; provided, however,
that in the event of a "Change in Control" (defined below) or Executive's
death, the remaining balance in the Account shall be distributed within the 60
day
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period following the date of such event in a single lump sum payment. The
amount of each annual installment distribution shall equal the balance in the
Account on the date set for payment of such installment divided by the number
of installment distributions remaining within the distribution period
(including such installment). Interest shall continue to be credited under
paragraph 2 during the installment distribution period. For purposes of this
paragraph 3, a "Change in Control" shall mean:
(a) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of 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 either (i) the then
outstanding shares of common stock of the Corporation (the "Outstanding
Corporation Common Stock") or (ii) the combined voting power of the then
outstanding voting securities of the Corporation entitled to vote
generally in the election of directors (the "Outstanding Corporation
Voting Securities"); excluding, however, the following: (A) any
acquisition directly from the Corporation other than an acquisition by
virtue of the exercise of a conversion privilege unless the security
being so converted was itself acquired directly from the Corporation, (B)
any acquisition by the Corporation, (C) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the
Corporation or any entity controlled by the Corporation, (D) any
acquisition pursuant to a transaction which complies with clauses (i),
(ii), and (iii) of subparagraph (c) of this paragraph 3, (E) except as
provided in paragraphs (d) and (e), any acquisition by any of the Xxxxxxx
Entities or any of the Xxxxx Entities, or (F) any increase in the
proportionate number of shares of Outstanding Corporation Common Stock or
Outstanding Corporation Voting Securities beneficially owned by a Person
to 20% or more of the shares of either of such classes of stock if such
increase was solely the result of the acquisition of Outstanding
Corporation Common Stock or Outstanding Corporation Voting Securities by
the Corporation; provided, however, that this clause (F) shall not apply
to any acquisition of Outstanding Corporation Common Stock or Outstanding
Corporation Voting Securities not described in clauses (A), (B), (C),
(D), or (E) of this paragraph (a) by the Person acquiring such shares
which occurs after such Person had become the beneficial owner of 20% or
more of either the Outstanding Corporation Common Stock or Outstanding
Corporation Voting Securities by reason of share purchases by the
Corporation; or
(b) A change in the composition of the Board such that the
individuals who, as of the Effective Date, constitute the Board (such
Board shall be hereinafter referred to as the "Incumbent Board") cease
for any reason to constitute at least a majority of the Board; provided,
however, for purposes of the Plan, that any individual who becomes a
member of the Board subsequent to the Effective Date whose election, or
nomination for election by the Corporation's shareholders, was approved
by a vote of at least a majority of those individuals who are members of
the Board and who were also members of the Incumbent Board (or deemed to
be such pursuant to this proviso) shall be deemed to be and shall be
considered as though such individual were a member of the Incumbent
Board, but provided, further, that any such individual whose initial
assumption of office
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occurs as a result of either an actual or threatened election contest
(as such terms are used in Rule 14a-11 of Regulation 14A promulgated under
the Exchange Act) or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board shall not be
so deemed or considered as a member of the Incumbent Board; or
(c) Consummation of a reorganization, merger or consolidation, or
sale or other disposition of all or substantially all of the assets of
the Corporation or the acquisition of the assets or securities of any
other entity (a "Corporate Transaction"); excluding, however, such a
Corporate Transaction pursuant to which (i) all or substantially all of
the individuals and entities who are the beneficial owners, respectively,
of the Outstanding Corporation Common Stock and Outstanding Corporation
Voting Securities immediately prior to such Corporate Transaction will
beneficially own, directly or indirectly, more than 60% of, respectively,
the outstanding shares of common stock and the combined voting power of
the then outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation resulting
from such Corporate Transaction (including, without limitation, a
corporation which as a result of such transaction owns the Corporation or
all or substantially all of the Corporation's assets either directly or
through one or more subsidiaries) (the "Resulting Corporation") in
substantially the same proportions as their ownership, immediately prior
to such Corporate Transaction, of the Outstanding Corporation Common
Stock and Outstanding Corporation Voting Securities, as the case may be,
(ii) no Person (other than the Corporation, any employee benefit plan (or
related trust) of the Corporation, any Xxxxxxx Entity, any Xxxxx Entity,
or such Resulting Corporation) will beneficially own, directly or
indirectly, 20% or more of, respectively, the outstanding shares of
common stock of the Resulting Corporation or the combined voting power of
the then outstanding voting securities of such Resulting Corporation
entitled to vote generally in the election of directors except to the
extent that such ownership existed with respect to the Corporation prior
to the Corporate Transaction, and (iii) individuals who were members of
the Incumbent Board will constitute at least a majority of the members of
the board of directors of the Resulting Corporation; or
(d) The Xxxxxxx Entities acquire beneficial ownership of more
than 35% of the Outstanding Corporation Common Stock or Outstanding
Corporation Voting Securities or of the outstanding shares of common
stock or the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as
the case may be, of the Resulting Corporation; or
(e) The Xxxxx Entities acquire beneficial ownership of more than
35% of the Outstanding Corporation Common Stock or Outstanding
Corporation Voting Securities or of the outstanding shares of common
stock or the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as
the case may be, of the Resulting Corporation; or
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(f) The approval by the shareholders of the Corporation of a
complete liquidation or dissolution of the Corporation.
4. Recipient of Distribution. Each payment to be made by the
Corporation hereunder shall be made to Executive if he is living on the date
such payment is made, and, if he is not, to such person or persons (the
"Beneficiary" or "Beneficiaries") as Executive shall designate on the form set
forth in Exhibit A or in such other writing signed by the Executive. Executive
may change or revoke any such designation previously made by filing a new
designation with the Secretary. Such new designation shall be effective for
purposes of this paragraph immediately upon filing. If no designation
hereunder is in effect or no designated Beneficiary is living when payment is
to be made, payment shall be made to the estate of the last to die of Executive
or, if a Beneficiary has been designated and such designation has not been
revoked, the Beneficiary.
5. Miscellaneous.
(a) Neither Executive nor any Beneficiary shall have any right or
title to or interest in any specific assets of the Corporation in respect
of this agreement. Any person entitled to payment under the agreement
shall be an unsecured general creditor of the Corporation in respect of
such payment.
(b) Except as may otherwise be required by law, no amount payable
under this agreement may be alienated in any manner by Executive or any
Beneficiary or be subject to the debts or liabilities of Executive or any
Beneficiary. Any attempt by Executive or any Beneficiary to alienate any
amount payable under the agreement shall be void.
(c) This agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, legatees, personal
representatives and successors.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
executed on the date and year first above written.
WAUSAU PAPER CORP.
By:
Xxxxxx X. Xxxxxx
President and Chief Executive
Officer
San X. Xxx, Xx., Executive
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EXHIBIT A
WAUSAU PAPER CORP.
DEFERRED COMPENSATION AGREEMENT ELECTION
Date: _________________, 1994
Pursuant to the provisions of the Deferred Compensation Agreement dated
July 1, 1994 (the "Agreement"), I hereby elect to defer the payment of the
following compensation otherwise payable to me by Wausau Paper Corp.
(1) The amount or percentage of such compensation to be deferred under
the Agreement shall be as follows:
Dollar Amount or
Type of Compensation Deferral Percentage
Salary __________________________________
Bonus __________________________________
(2) This election shall remain in effect until I amend or revoke it by
subsequent election, or until the time set for distribution of deferred amounts
under the Agreement.
(3) In the event of my death before the amounts payable to me under the
Agreement have been distributed to me, I hereby direct that such amounts be
paid in a lump sum to:
(NOTE: If no beneficiary is named, any amounts payable will be paid to your
estate or personal representative. You must notify the Secretary of the
Corporation of any change in your beneficiary's address.)
San X. Xxx, Xx.
