Change In Control Agreement - Temple-Inland Inc. and Leslie K. O'Neal
CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT, dated October 2, 2000 (the "Effective Date"), is made
by and between Temple-Inland Inc., a Delaware corporation ("Temple-Inland"), and
Leslie K. O'Neal (the "Executive").
WHEREAS, Temple-Inland considers it essential to the best interests of
its stockholders to foster the continued employment of key management personnel;
and
WHEREAS, the Board recognizes that, as is the case with many publicly
held corporations, the possibility of a Change in Control exists and that such
possibility, and the uncertainty and questions which it may raise among
management, may result in the departure or distraction of management personnel
to the detriment of Temple-Inland and its stockholders; and
WHEREAS, the Board has determined that appropriate steps should be
taken to reinforce and encourage the continued attention and dedication of
members of the Company's management, including the Executive, to their assigned
duties without distraction in the face of potentially disturbing circumstances
arising from the possibility of a Change in Control;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, Temple-Inland and the Executive hereby agree as
follows:
1. Defined Terms. The definitions of capitalized terms used in this
Agreement are provided in the last Section hereof.
2. Term of Agreement. The Term of this Agreement shall commence on the
Effective Date and shall continue in effect through the second anniversary of
the Effective Date; provided, however, that commencing on the first anniversary
of the Effective Date, and on each anniversary of the Effective Date thereafter,
the Term shall automatically be extended for one additional year unless, not
later than 90 days prior to each such date, the Company or the Executive shall
have given notice not to extend the Term; and provided, further, that if a
Change in Control shall have occurred during the Term, the Term shall expire no
earlier than 36 months beyond the month in which such Change in Control
occurred.
<PAGE> 2
3. Company's Covenants Summarized. In order to induce the Executive to
remain in the employ of the Company and in consideration of the Executive's
covenants set forth in Section 4 hereof, the Company agrees, under the
conditions described herein, to pay the Executive the Severance Payments and the
other payments and benefits described herein. Except as provided in Section 9.1
hereof, no Severance Payments shall be payable under this Agreement unless there
shall have been (or, under the terms of the second sentence of Section 6.1
hereof, there shall be deemed to have been) a termination of the Executive's
employment with the Company following a Change in Control and during the Term.
This Agreement shall not be construed as creating an express or implied contract
of employment and, except as otherwise agreed in writing between the Executive
and the Company, the Executive shall not have any right to be retained in the
employ of the Company.
4. The Executive's Covenants. The Executive agrees that, subject to the
terms and conditions of this Agreement, in the event of a Potential Change in
Control during the Term, the Executive will remain in the employ of the Company
until the earliest of (i) a date which is six months from the date of such
Potential Change of Control, (ii) the date of a Change in Control, (iii) the
date of termination by the Executive of the Executive's employment for Good
Reason or by reason of death, Disability or Retirement, or (iv) the termination
by the Company of the Executive's employment for any reason.
5. Compensation Other Than Severance Payments.
5.1 Following a Change in Control and during the Term, during any
period that the Executive fails to perform the Executive's full-time duties with
the Company as a result of incapacity due to physical or mental illness, the
Company shall pay the Executive's full salary to the Executive at the rate in
effect at the commencement of any such period, together with all compensation
and benefits payable to the Executive under the terms of any compensation or
benefit plan, program or arrangement maintained by the Company during such
period (other than any disability plan), until the Executive's employment is
terminated by the Company for Disability.
5.2 If the Executive's employment shall be terminated for any reason
following a Change in Control and during the Term, the Company shall pay the
Executive's full salary to the Executive through the Date of Termination at the
highest rate in effect during the three-year period ending immediately prior
2
<PAGE> 3
to the Date of Termination together with all compensation and benefits payable
to the Executive through the Date of Termination under the terms of the
Company's compensation and benefit plans, programs or arrangements as in effect
immediately prior to the Date of Termination or, if more favorable to the
Executive, as in effect immediately prior to the first occurrence of an event or
circumstance constituting Good Reason.
5.3 If the Executive's employment shall be terminated for any reason
following a Change in Control and during the Term, the Company shall pay to the
Executive the Executive's normal post-termination compensation and benefits as
such payments become due. Such post-termination compensation and benefits shall
be determined under, and paid in accordance with, the Company's retirement,
insurance and other compensation or benefit plans, programs and arrangements as
in effect immediately prior to the Date of Termination or, if more favorable to
the Executive, as in effect immediately prior to the occurrence of the first
event or circumstance constituting Good Reason.
6. Severance Payments.
6.1 If the Executive's employment is terminated following a Change in
Control and within two (2) years after a Change in Control, other than (A) by
the Company for Cause, (B) by reason of death or Disability, or (C) by the
Executive without Good Reason, then the Company shall pay the Executive the
amounts, and provide the Executive the benefits, described in this Section 6.1
("Severance Payments") and Section 6.2, in addition to any payments and benefits
to which the Executive is entitled under Section 5 hereof. For purposes of this
Agreement, the Executive's employment shall be deemed to have been terminated
following a Change in Control by the Company without Cause or by the Executive
with Good Reason, if (i) the Executive's employment is terminated by the Company
without Cause prior to a Change in Control (whether or not a Change in Control
ever occurs) and such termination was at the request or direction of a Person
who has entered into an agreement with the Company the consummation of which
would constitute a Change in Control, or (ii) the Executive terminates his
employment for Good Reason prior to a Change in Control (whether or not a Change
in Control ever occurs) and the circumstance or event which constitutes Good
Reason occurs at the request or direction of such Person. For purposes of any
determination regarding the applicability of the immediately preceding sentence,
any position taken by the
3
<PAGE> 4
Executive shall be presumed to be correct unless the Company establishes to the
Board by clear and convincing evidence that such position is not correct.
(A) In lieu of any further salary payments to the Executive for
periods subsequent to the Date of Termination, the Company shall pay to the
Executive a lump sum severance payment, in cash, equal to two (2) times the sum
of (i) the Executive's highest base salary as in effect during the three-year
period ending immediately prior to the Date of Termination and (ii) the
Executive's target annual bonus pursuant to any annual bonus or incentive plan
maintained by the Company in respect of the fiscal year in which occurs the Date
of Termination (or, if higher, in respect of any of the three preceding fiscal
years). The amount payable pursuant to this Section 6.1(A) shall be reduced by
the amount of any cash severance or salary continuation benefit paid or payable
to the Executive under any other plan, policy or program of the Company or any
written employment agreement between the Executive and the Company.
(B) For the two-year period immediately following the Date of
Termination, the Company shall arrange to provide the Executive and his
dependents life, short-term disability, long-term disability, travel accident,
accidental death and dismemberment, medical, dental and other health and welfare
benefits substantially similar to those provided to the Executive and his
dependents immediately prior to the Date of Termination or, if more favorable to
the Executive, those provided to the Executive and his dependents immediately
prior to the first occurrence of an event or circumstance constituting Good
Reason, at no greater cost to the Executive than the cost to the Executive
immediately prior to such date or occurrence; provided, however, that, unless
the Executive consents to a different method (after taking into account the
effect of such method on the calculation of "parachute payments" pursuant to
Section 6.2 hereof), such health and welfare benefits shall be provided through
a third-party insurer. To the extent that health and welfare benefits of the
same type are received by or made available to the Executive during the two-year
period following the Executive's Date of Termination (which such benefits
received by or made available to the Executive shall be reported by the
Executive to the insurance company or other appropriate party in accordance with
any applicable coordination of benefits provisions), the benefits otherwise
receivable by the Executive pursuant to this Section 6.1(B) shall be made
secondary to such benefits; provided, however, that the Company shall reimburse
the Executive for the excess, if any, of the cost of such benefits to the
Executive over such cost
4
<PAGE> 5
immediately prior to the Date of Termination or, if more favorable to the
Executive, the first occurrence of an event or circumstance constituting Good
Reason.
(C) Each option held by the Executive to purchase shares of common
stock of Temple-Inland outstanding as of the Date of Termination shall be
treated in accordance with the applicable terms of any plan (including any
underlying agreement) pursuant to which it was granted.
(D) For purposes of determining the amount of any benefit payable
to the Executive and the Executive's right to any benefit otherwise payable
under a Pension Plan, the Executive shall be treated as if he had accumulated
(after the Date of Termination) twenty-four (24) additional months of service
credit thereunder and had been credited during such period with compensation at
the highest rate in effect during the three-year period ending immediately prior
to the Date of Termination.
(E) Notwithstanding any provision of any Pension Plan or deferred
compensation plan to the contrary, and except to the extent otherwise provided
in Section 6.1(F), in lieu of any other benefit under a supplemental, excess
benefit or deferred compensation plan, the Company shall pay to the Executive a
lump sum amount, in cash, equal to the sum of (i) the actuarial equivalent of
the aggregate benefit which the Executive had accrued under the terms of all
supplemental and excess benefit plans and (ii) the actuarial equivalent of the
deferred compensation otherwise payable to the Executive, in either case without
regard to any amendment to any such plan made subsequent to a Change in Control
and on or prior to the Date of Termination, which amendment adversely affects in
any manner the computation of benefits thereunder. For purposes of this Section
6.1(E), "actuarial equivalent" shall be determined (x) using the same
assumptions utilized under the applicable plan (or if there is no provision for
such assumptions, under the Company's tax-qualified Pension Plan in which the
Executive participates) immediately prior to the Date of Termination or, if more
favorable to the Executive, immediately prior to the first occurrence of an
event or circumstance constituting Good Reason, (y) taking into account any
early retirement subsidies associated with the applicable benefit, and (z) on
the basis of a straight life annuity (or other default form of benefit)
commencing at the date (but in no event earlier than the third anniversary of
the Date of Termination) as of which the actuarial equivalent of such annuity or
other form of benefit is greatest.
5
<PAGE> 6
(F) In addition to the benefits to which the Executive is entitled
under any defined contribution Pension Plan, the Company shall pay the Executive
a lump sum amount, in cash, equal to the sum of (i) the amount that would have
been contributed thereto by the Company on the Executive's behalf during the two
(2) years immediately following the Date of Termination, determined (x) as if
the Executive made the maximum permissible contributions thereto during such
period, (y) as if the Executive earned compensation during such period at a rate
equal to the Executive's highest rate of compensation (as defined in the Pension
Plan) during the three-year period ending immediately prior to the Date of
Termination, and (z) without regard to any amendment to the Pension Plan made
subsequent to a Change in Control and on or prior to the Date of Termination,
which amendment adversely affects in any manner the computation of benefits
thereunder, and (ii) the excess, if any, of (x) the Executive's account balance
under the Pension Plan as of the Date of Termination over (y) the portion of
such account balance that is nonforfeitable under the terms of the Pension Plan.
(G) Notwithstanding any provision of any annual or long-term
incentive plan to the contrary, the Company shall pay to the Executive a lump
sum amount, in cash, equal to the sum of (i) any unpaid incentive compensation
which has been allocated or awarded to the Executive for a completed annual
bonus cycle preceding the Date of Termination under any such plan and which, as
of the Date of Termination, is contingent only upon the continued employment of
the Executive to a subsequent date, (ii) if the Date of Termination occurs
before the end of the first six months in the then-current annual bonus cycle
under the applicable plan, a pro rata portion to the Date of Termination of the
aggregate value of all contingent incentive compensation awards to the Executive
for the uncompleted period under any such plan, calculated as to each such award
by multiplying the award that the Executive would have earned on the last day of
the performance award period, assuming the achievement, at the target level (or
if higher, at the then projected actual final level), of the individual and
corporate performance goals established with respect to such award, by the
fraction obtained by dividing the number of full months and any fractional
portion of a month during such performance award period through the Date of
Termination by the total number of months contained in such performance award
period, and (iii) if the Date of Termination occurs after the end of the first
six months in the then-current annual bonus cycle but before the end of such
annual bonus cycle under the applicable plan, the full aggregate value of all
contingent incentive compensation awards to the Executive for the uncompleted
period
6
<PAGE> 7
under any such plan assuming the achievement, at the target level (or if higher,
at the then projected actual final level), of the individual and corporate
performance goals established with respect to such award.
(H) If the Executive would have become entitled to benefits under
the Company's post-retirement health care or life insurance plans, as in effect
immediately prior to the Date of Termination or, if more favorable to the
Executive, as in effect immediately prior to the first occurrence of an event or
circumstance constituting Good Reason, had the Executive's employment terminated
at any time within two (2) years after the Date of Termination, the Company
shall provide such post-retirement health care or life insurance benefits to the
Executive and the Executive's dependents commencing on the later of (i) the date
on which such coverage would have first become available and (ii) the date on
which benefits described in subsection (B) of this Section 6.1 terminate.
(I) The Company shall reimburse the Executive for expenses
incurred for outplacement services suitable to the Executive's position for a
period of one (1) year following the Date of Termination (or, if earlier, until
the first acceptance by the Executive of an offer of employment) in an amount
not exceeding 15% of the sum of the Executive's highest annual base rate of
salary as in effect during the three-year period ending immediately prior to the
Date of Termination, and the greatest target annual bonus pursuant to any annual
bonus or incentive plan maintained by the Company in respect of the fiscal year
in which occurs the Date of Termination (or, if higher, in respect of any of the
three preceding fiscal years).
(J) For the two-year period immediately following the Date of
Termination, the Company shall provide the Executive with his customary
perquisites (such as any use of a Company provided automobile, club membership
fee reimbursements, income tax preparation and financial advisory services) in
each case on the same terms and conditions that were applicable immediately
prior to the Date of Termination or, if more favorable, immediately prior to the
first occurrence of an event or circumstance constituting Good Reason.
6.2 (A) Whether or not the Executive becomes entitled to the Severance
Payments, if any payment or benefit received or to be received by the Executive
in connection with a Change in Control or the termination of the Executive's
employment (whether pursuant to the terms of this Agreement or
7
<PAGE> 8
any other plan, arrangement or agreement with the Company, any Person whose
actions result in a Change in Control or any Person affiliated with the Company
or such Person) (all such payments and benefits, including the Severance
Payments, being hereinafter called "Total Payments") will be subject (in whole
or part) to the Excise Tax, then, subject to the provisions of subsection (B) of
this Section 6.2, the Company shall pay to the Executive an additional amount
(the "Gross-Up Payment") such that the net amount retained by the Executive,
after deduction of any Excise Tax on the Total Payments and any federal, state
and local income and employment taxes and Excise Tax upon the Gross-Up Payment,
shall be equal to the Total Payments. For purposes of determining the amount of
the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes
at the highest marginal rate of federal income taxation in the calendar year in
which the Gross-Up Payment is to be made and state and local income taxes at the
highest marginal rate of taxation in the state and locality of the Executive's
residence on the Date of Termination (or if there is no Date of Termination,
then the date on which the Gross-up Payment is calculated for purposes of this
Section 6.2), net of the maximum reduction in federal income tax which could be
obtained from deduction of such state and local taxes.
(B) In the event that the amount of the Total Payments does
not exceed 110% of the largest amount that would result in no portion of the
Total Payments being subject to the Excise Tax (the "Safe Harbor"), then
subsection (A) of this Section 6.2 shall not apply and the noncash Severance
Payments shall first be reduced (if necessary, to zero), and the cash Severance
Benefits shall thereafter be reduced (if necessary, to zero) so that the amount
of the Total Payments is equal to the Safe Harbor; provided, however, that the
Executive may elect to have the cash Severance Payments reduced (or eliminated)
prior to any reduction of the noncash Severance Payments.
(C) For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the amount of such Excise Tax,
(i) all of the Total Payments shall be treated as "parachute payments" within
the meaning of section 280G(b)(2) of the Code, unless in the opinion of tax
counsel ("Tax Counsel") reasonably acceptable to the Executive and selected by
the accounting firm which was, immediately prior to the Change in Control, the
Company's independent auditor (the "Auditor"), such other payments or benefits
(in whole or in part) do not constitute parachute payments, including by reason
of section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments"
within the meaning of section 280G(b)(l) of the Code shall be treated as subject
8
<PAGE> 9
to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute
payments (in whole or in part) represent reasonable compensation for services
actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in
excess of the Base Amount allocable to such reasonable compensation, or are
otherwise not subject to the Excise Tax, and (iii) the value of any noncash
benefits or any deferred payment or benefit shall be determined by the Auditor
in accordance with the principles of sections 280G(d)(3) and (4) of the Code.
Prior to the payment date set forth in Section 6.3 hereof, the Company shall
provide the Executive with its calculation of the amounts referred to in this
Section 6.2(C) and such supporting materials as are reasonably necessary for the
Executive to evaluate the Company's calculations. If the Executive disputes the
Company's calculations (in whole or in part), the reasonable opinion of Tax
Counsel with respect to the matter in dispute shall prevail.
(D) (I) In the event that (1) amounts are paid to the Executive
pursuant to Section 6.2(A), (2) there is a Final Determination that the Excise
Tax is less than the amount taken into account hereunder in calculating the
Gross-Up Payment, and (3) after giving effect to such Final Determination, the
Severance Payments are to be reduced pursuant to Section 6.2(B), the Executive
shall repay to the Company, within five (5) business days following the date of
the Final Determination, the Gross-Up Payment, the amount of the reduction in
the Severance Payments, plus interest on the amount of such repayments at 120%
of the rate provided in section 1274(b)(2)(B) of the Code.
(II) In the event that (1) amounts are paid to the Executive
pursuant to Section 6.2(A), (2) there is a Final Determination that the Excise
Tax is less than the amount taken into account hereunder in calculating the
Gross-Up Payment, and (3) after giving effect to such Final Determination, the
Severance Payments are not to be reduced pursuant to Section 6.2(B), the
Executive shall repay to the Company, within five (5) business days following
the date of the Final Determination, the portion of the Gross-Up Payment
attributable to such reduction (plus that portion of the Gross-Up Payment
attributable to the Excise Tax and federal, state and local income and
employment taxes imposed on the Gross-Up Payment being repaid by the Executive),
to the extent that such repayment results in a reduction in the Excise Tax and a
dollar-for-dollar reduction in the Executive's taxable income and wages for
purposes of federal, state and local income and employment taxes, plus interest
on the amount of such repayment at 120% of the rate provided in section
1274(b)(2)(B) of the Code.
9
<PAGE> 10
(III) Except as otherwise provided in clause (IV) below, in the
event there is a Final Determination that the Excise Tax exceeds the amount
taken into account hereunder in determining the Gross-Up Payment (including by
reason of any payment the existence or amount of which cannot be determined at
the time of the Gross-Up Payment), the Company shall pay to the Executive,
within five (5) business days following the date of the Final Determination, the
sum of (1) a Gross-Up Payment in respect of such excess and in respect of any
portion of the Excise Tax with respect to which the Company had not previously
made a Gross-Up Payment, including a Gross-Up Payment in respect of any Excise
Tax attributable to amounts payable under clauses (2) and (3) of this paragraph
(III) (plus any interest, penalties or additions payable by the Executive with
respect to such excess and such portion), (2) if Severance Payments were reduced
pursuant to Section 6.2(B) but after giving effect to such Final Determination,
the Severance Payments should not have been reduced pursuant to Section 6.2(B),
the amount by which the Severance Payments were reduced pursuant to Section
6.2(B), and (3) interest on such amounts at 120% of the rate provided in section
1274(b)(2)(B) of the Code.
(IV) In the event that (1) Severance Payments were reduced
pursuant to Section 6.2(B) and (2) the aggregate value of Total Payments which
are considered "parachute payments" within the meaning of section 280G(b)(2) of
the Code is subsequently redetermined in a Final Determination, but such
redetermined value still does not exceed 110% of the Safe Harbor, then, within
five (5) business days following such Final Determination, (x) the Company shall
pay to the Executive the amount (if any) by which the reduced Severance Payments
(after taking the Final Determination into account) exceeds the amount of the
reduced Severance Payments actually paid to the Executive, plus interest on the
amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B)
of the Code, or (y) the Executive shall pay to the Company the amount (if any)
by which the reduced Severance Payments actually paid to the Executive exceeds
the amount of the reduced Severance Payments (after taking the Final
Determination into account), plus interest on the amount of such repayment at
120% of the rate provided in section 1274(b)(2)(B) of the Code.
6.3 The payments provided in subsections (A), (E), (F) and (G) of
Section 6.1 hereof and in Section 6.2 hereof shall be made not later than the
fifth day following the Date of Termination; provided, however, that if the
amounts of such payments cannot be finally determined on or before such day,
10
<PAGE> 11
the Company shall pay to the Executive on such day an estimate, as determined in
good faith by the Executive or, in the case of payments under Section 6.2
hereof, in accordance with Section 6.2 hereof, of the minimum amount of such
payments to which the Executive is clearly entitled and shall pay the remainder
of such payments (together with interest on the unpaid remainder (or on all such
payments to the extent the Company fails to make such payments when due) at 120%
of the rate provided in section 1274(b)(2)(B) of the Code) as soon as the amount
thereof can be determined but in no event later than the 30th day after the Date
of Termination. In the event that the amount of the estimated payments exceeds
the amount subsequently determined to have been due, such excess shall
constitute a loan by the Company to the Executive, payable on the fifth business
day after demand by the Company (together with interest at 120% of the rate
provided in section 1274(b)(2)(B) of the Code). At the time that payments are
made under this Agreement, the Company shall provide the Executive with a
written statement setting forth the manner in which such payments were
calculated and the basis for such calculations including, without limitation,
any opinions or other advice the Company has received from Tax Counsel, the
Auditor or other advisors or consultants (and any such opinions or advice which
are in writing shall be attached to the statement).
6.4 The Company also shall pay to the Executive all legal fees and
expenses incurred by the Executive in disputing in good faith any issue
hereunder relating to the termination of the Executive's employment, in seeking
in good faith to obtain or enforce any benefit or right provided by this
Agreement or in connection with any tax audit or proceeding to the extent
attributable to the application of section 4999 of the Code to any payment or
benefit provided hereunder. Such payments shall be made within five business
days after delivery of the Executive's written requests for payment accompanied
with such evidence of fees and expenses incurred as the Company reasonably may
require.
7. Termination Procedures and Compensation During Dispute.
7.1. Notice of Termination. After a Change in Control and during the
Term, any purported termination of the Executive's employment (other than by
reason of death) shall be communicated by written Notice of Termination from one
party hereto to the other party hereto in accordance with Section 10 hereof. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and cir-
11
<PAGE> 12
cumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated. For purposes of this Agreement, any
purported termination of the Executive's employment shall be presumed to be
other than for Cause unless the Notice of Termination includes a copy of an
instrument executed by the Chief Executive Officer of Temple-Inland Inc. (after
reasonable notice to the Executive and an opportunity for the Executive,
together with the Executive's counsel, to be heard before the Chief Executive
Officer) finding that, in the good faith opinion of the Chief Executive Officer,
the Executive was guilty of conduct set forth in clause (i) or (ii) of the
definition of Cause herein, and specifying the particulars thereof in detail.
7.2 Date of Termination. "Date of Termination," with respect to any
purported termination of the Executive's employment after a Change in Control
and during the Term, shall mean (i) if the Executive's employment is terminated
for Disability, 30 days after Notice of Termination is given (provided that the
Executive shall not have returned to the full-time performance of the
Executive's duties during such 30 day period), and (ii) if the Executive's
employment is terminated for any other reason, the date specified in the Notice
of Termination (which, in the case of a termination by the Company, shall not be
less than 30 days (except in the case of a termination for Cause) and, in the
case of a termination by the Executive, shall not be less than 15 days nor more
than 60 days, respectively, from the date such Notice of Termination is given).
7.3 Dispute Concerning Termination. If within 15 days after any Notice
of Termination is given, or, if later, prior to the Date of Termination (as
determined without regard to this Section 7.3), the party receiving such Notice
of Termination notifies the other party that a dispute exists concerning the
termination, the Date of Termination shall be extended until the earlier of (i)
the date on which the Term ends or (ii) the date on which the dispute is finally
resolved, either by mutual written agreement of the parties or by a final
judgment, order or decree of an arbitrator or a court of competent jurisdiction
(which is not appealable or with respect to which the time for appeal therefrom
has expired and no appeal has been perfected); provided, however, that the Date
of Termination shall be extended by a notice of dispute given by the Executive
only if such notice is given in good faith and the Executive pursues the
resolution of such dispute with reasonable diligence.
7.4 Compensation During Dispute. If a purported termination occurs
following a Change in Control and during the Term and the Date of
12
<PAGE> 13
Termination is extended in accordance with Section 7.3 hereof, the Company shall
continue to pay the Executive the full compensation in effect when the notice
giving rise to the dispute was given (including, but not limited to, salary) and
continue the Executive as a participant in all compensation, benefit and
insurance plans in which the Executive was participating when the notice giving
rise to the dispute was given, until the Date of Termination, as determined in
accordance with Section 7.3 hereof. Amounts paid under this Section 7.4 are in
addition to all other amounts due under this Agreement (other than those due
under Section 5.2 hereof) and shall not be offset against or reduce any other
amounts due under this Agreement.
8. No Mitigation. The Company agrees that, if the Executive's
employment with the Company terminates during the Term, the Executive is not
required to seek other employment or to attempt in any way to reduce any amounts
payable to the Executive by the Company pursuant to Section 6 hereof or Section
7.4 hereof. Further, the amount of any payment or benefit provided for in this
Agreement (other than Section 6.1(B) hereof) shall not be reduced by any
compensation earned by the Executive as the result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by the Executive to the Company, or otherwise.
13
<PAGE> 14
9. Successors; Binding Agreement.
9.1 In addition to any obligations imposed by law upon any successor to
Temple-Inland, Temple-Inland 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 Temple-Inland to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that Temple-Inland would be required to perform it if no such succession
had taken place. Failure of Temple-Inland to obtain such assumption and
agreement prior to the effectiveness of any such succession shall be a breach of
this Agreement and shall entitle the Executive to compensation from the Company
in the same amount and on the same terms as the Executive would be entitled to
hereunder if the Executive were to terminate the Executive's employment for Good
Reason after a Change in Control, except that, for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination.
9.2 This Agreement shall inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive shall
die while any amount would still be payable to the Executive hereunder (other
than amounts which, by their terms, terminate upon the death of the Executive)
if the Executive had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
the executors, personal representatives or administrators of the Executive's
estate.
10. Notices. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed, if to the
Executive, to the address of the Executive as maintained from time to time on
the payroll system of the Company and, if to the Company, to the address set
forth below, or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change of address
shall be effective only upon actual receipt:
14
<PAGE> 15
To the Company:
Temple-Inland Inc.
303 South Temple Drive
Diboll, Texas 75941
Attention: M. Richard Warner
11. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and such officer as may be specifically
designated by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or of any lack of compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. This Agreement supersedes any other
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof which have been made by the Executive or
the Company; provided, however, that this Agreement shall supersede any
agreement setting forth the terms and conditions of the Executive's employment
with the Company only in the event that the Executive's employment with the
Company is terminated on or following a Change in Control, by the Company other
than for Cause or by the Executive other than for Good Reason. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Texas without regard to its principles of conflicts
of law. All references to sections of the Exchange Act or the Code shall be
deemed also to refer to any successor provisions to such sections. Any payments
provided for hereunder shall be paid net of any applicable withholding required
under federal, state or local law and any additional withholding to which the
Executive has agreed. The obligations of the Company and the Executive under
this Agreement which by their nature may require either partial or total
performance after the expiration of the Term (including, without limitation,
those under Sections 6 and 7 hereof) shall survive such expiration.
12. Validity.
12.1 Any payments made to the Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance
15
<PAGE> 16
with 12 U.S.C. Section 1828(k) and FDIC Regulation 12 C.F.R. Part 359, Golden
Parachute and Indemnification Payments.
12.2 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.
13. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
14. Settlement of Disputes. All claims by the Executive for benefits
under this Agreement shall be directed to and determined by the Board and shall
be in writing. Any denial by the Board of a claim for benefits under this
Agreement shall be delivered to the Executive in writing and shall set forth the
specific reasons for the denial and the specific provisions of this Agreement
relied upon. The Board shall afford a reasonable opportunity to the Executive
for a review of the decision denying a claim and shall further allow the
Executive to appeal to the Board a decision of the Board within 60 days after
notification by the Board that the Executive's claim has been denied.
15. Definitions. For purposes of this Agreement, the following terms
shall have the meanings indicated below:
(A) "Affiliate" shall have the meaning set forth in Rule 12b-2
promulgated under Section 12 of the Exchange Act.
(B) "Auditor" shall have the meaning set forth in Section 6.2
hereof.
(C) "Base Amount" shall have the meaning set forth in section
280G(b)(3) of the Code.
(D) "Beneficial Owner" shall have the meaning set forth in Rule
13d-3 under the Exchange Act.
(E) "Board" shall mean the Board of Directors of Temple-Inland
Inc.
16
<PAGE> 17
(F) "Cause" for termination by the Company of the Executive's
employment shall mean (i) the willful and continued failure by the Executive to
substantially perform the Executive's duties with the Company (other than any
such failure resulting from the Executive's incapacity due to physical or mental
illness or any such actual or anticipated failure after the issuance of a Notice
of Termination for Good Reason by the Executive pursuant to Section 7.1 hereof)
after a written demand for substantial performance is delivered to the Executive
by the Chief Executive Officer of Temple-Inland, which demand specifically
identifies the manner in which the Chief Executive Officer believes that the
Executive has not substantially performed the Executive's duties, or (ii) the
willful engaging by the Executive in conduct which is demonstrably and
materially injurious to the Company, monetarily or otherwise. For purposes of
clauses (i) and (ii) of this definition, (x) no act, or failure to act, on the
Executive's part shall be deemed "willful" unless done, or omitted to be done,
by the Executive not in good faith and without reasonable belief that the
Executive's act, or failure to act, was in the best interest of the Company and
(y) in the event of a dispute concerning the application of this provision, no
claim by the Company that Cause exists shall be given effect unless the Company
establishes to the Board by clear and convincing evidence that Cause exists.
(G) "Change in Control" shall be deemed to have occurred if the
event set forth in any one of the following paragraphs shall have occurred:
(I) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including in the securities
beneficially owned by such Person any securities acquired directly from the
Company or its Affiliates) representing 25% or more of the combined voting power
of the Company's then outstanding securities, excluding any Person who becomes
such a Beneficial Owner in connection with a transaction described in clauses
(a), (b) or (c) of paragraph (III) below;
(II) within any twenty-four (24) month period, the following
individuals cease for any reason to constitute a majority of the number of
directors then serving on the Board: individuals who, on the Effective Date,
constitute the Board and any new director (other than a director whose initial
assumption of office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation, relating to the
17
<PAGE> 18
election of directors of the Company) whose appointment or election by the Board
or nomination for election by the Company's shareholders was approved or
recommended by a vote of at least two-thirds (2/3) of the directors then still
in office who either were directors on the date hereof or whose appointment,
election or nomination for election was previously so approved or recommended;
(III) there is consummated a merger, consolidation of the
Company or any direct or indirect subsidiary of the Company with any other
corporation or any recapitalization of the Company (for purposes of this
paragraph (III), a "Business Event") unless, immediately following such Business
Event (a) the directors of the Company immediately prior to such Business Event
continue to constitute at least a majority of the board of directors of the
Company, the surviving entity or any parent thereof, (b) the voting securities
of the Company outstanding immediately prior to such Business Event continue to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity or any parent thereof), in combination with
the ownership of any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any subsidiary of the Company, at least
60% of the combined voting power of the securities of the Company or such
surviving entity or any parent thereof outstanding immediately after such
Business Event, or (c) no Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company or such surviving entity or any parent
thereof (not including in the securities Beneficially Owned by such Person any
securities acquired directly from the Company or its Affiliates) representing
25% or more of the combined voting power of the then outstanding securities of
the Company or such surviving entity or any parent thereof (except to the extent
such ownership existed prior to the Business Event);
(IV) the shareholders of the Company approve a plan of complete
liquidation or dissolution of the Company;
(V) there is consummated an agreement for the sale, disposition
or long-term lease by the Company of:
(A) substantially all of the Company's assets,
18
<PAGE> 19
(B) (i) substantially all of the Company's ownership
interest in Inland Paperboard and Packaging, Inc. (or any successor thereto) or
(ii) substantially all of the assets of Inland Paperboard and Packaging, Inc.
and its direct or indirect subsidiaries (or any successor or successors
thereto), or
(C) (i) substantially all of the Company's ownership
interest in Temple-Inland Forest Products Corporation or Guaranty Federal Bank,
F.S.B. (or any respective successor thereto) or (ii) substantially all of the
assets of Temple-Inland Forest Products Corporation or Guaranty Federal Bank,
F.S.B. and their respective direct or indirect subsidiaries (or any respective
successor or successors thereto),
other than such a sale, disposition or lease to an entity, at least 50% of the
combined voting power of the voting securities of which are owned by
shareholders of the Company in substantially the same proportions as their
ownership of the Company immediately prior to such sale or disposition; or
(VI) any other event that the Board, in its sole discretion,
determines to be a Change in Control for purposes of this Agreement.
Notwithstanding the foregoing, a "Change in Control" shall not be
deemed to have occurred by virtue of the consummation of any transaction or
series of integrated transactions immediately following which the record holders
of the common stock of the Company immediately prior to such transaction or
series of transactions continue to have substantially the same proportionate
ownership in an entity which owns all or substantially all of the assets of the
Company immediately following such transaction or series of transactions.
(H) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
(I) "Company" shall mean, unless the context clearly requires
otherwise, Temple-Inland Inc., a Delaware corporation, and any of its Affiliates
that actually employ the Executive; provided, that (I) for purposes of Sections
15(G) and 15(U) hereof, Company shall mean Temple-Inland Inc., except that in
determining under Section 15(G) hereof whether or not any Change in Control of
the Company has occurred, Company shall include any successor to Temple-Inland
Inc.'s business and/or assets which assumes and
19
<PAGE> 20
agrees to perform this Agreement by operation of law or otherwise, (II) unless
the context clearly requires otherwise, references to the Company in a capacity
of employer shall mean Temple-Inland Inc. or any of its Affiliates, whichever
actually employs the Executive, and (III) where the Agreement requires the
Company to make a payment to the Executive or to take some other action, either
Temple-Inland, Inc. shall do so or it shall cause any of its Affiliates that
actually employ the Executive to do so.
(J) "Date of Termination" shall have the meaning set forth in
Section 7.2 hereof.
(K) "Disability" shall be deemed the reason for the termination by
the Company of the Executive's employment, if, as a result of the Executive's
incapacity due to physical or mental illness, the Executive shall have been
absent from the full-time performance of the Executive's duties with the Company
for a period of six consecutive months, the Company shall have given the
Executive a Notice of Termination for Disability, and, within 30 days after such
Notice of Termination is given, the Executive shall not have returned to the
full-time performance of the Executive's duties.
(L) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
(M) "Excise Tax" shall mean any excise tax imposed under section
4999 of the Code.
(N) "Executive" shall mean the individual named in the first
paragraph of this Agreement.
(O) "Final Determination" means a final determination by the
Internal Revenue Service or, if such determination is appealed, a final
determination by any court of competent jurisdiction.
(P) "Good Reason" for termination by the Executive of the
Executive's employment shall mean the occurrence (without the Executive's
express written consent) after any Change in Control, or prior to a Change in
Control under the circumstances described in clauses (i) and (ii) of the second
sentence of Section 6.1 hereof (treating all references in paragraphs (I)
through (VI) below to a "Change in Control" as references to a "Potential Change
in
20
<PAGE> 21
Control"), of any one of the following acts by the Company, or failures by the
Company to act, unless, in the case of any act or failure to act described in
paragraph (I), (IV), or (V) below, such act or failure to act is corrected prior
to the Date of Termination specified in the Notice of Termination given in
respect thereof:
(I) the assignment to the Executive of any duties substantially
inconsistent with the Executive's status as a senior executive officer of the
Company or a material adverse alteration in the nature or status of the
Executive's responsibilities from those in effect immediately prior to the
Change in Control (including, as applicable and without limitation, the
Executive ceasing to be an executive officer of a public company);
(II) a substantial reduction by the Company in the Executive's
annual base salary as in effect on the date hereof or as the same may be
increased from time to time;
(III) the relocation of the Executive's principal place of
employment to a location more than 50 miles from the Executive's principal place
of employment immediately prior to the Change in Control or the Company's
requiring the Executive to be based anywhere other than such principal place of
employment (or permitted relocation thereof) except for required travel on the
Company's business to an extent substantially consistent with the Executive's
present business travel obligations;
(IV) the failure by the Company to pay to the Executive any
portion of the Executive's current compensation, or to pay to the Executive any
portion of an installment of deferred compensation under any deferred
compensation program of the Company, within seven days of the date such
compensation is due;
(V) the failure by the Company to continue to provide the
Executive with benefits substantially similar to the material benefits enjoyed
by the Executive under any of the Company's executive compensation (including
bonus, equity or incentive compensation), pension, savings, life insurance,
medical, health and accident, or disability plans in which the Executive was
participating immediately prior to the Change in Control, the taking of any
other action by the Company which would directly or indirectly materially reduce
any of such benefits or deprive the Executive of any material fringe
21
<PAGE> 22
benefit enjoyed by the Executive at the time of the Change in Control, or the
failure by the Company to provide the Executive with the number of paid vacation
days to which the Executive is entitled on the basis of years of service with
the Company in accordance with the Company's normal vacation policy in effect at
the time of the Change in Control; or
(VI) any purported termination of the Executive's employment
which is not effected pursuant to a Notice of Termination satisfying the
requirements of Section 7.1 hereof; for purposes of this Agreement, no such
purported termination shall be effective.
The Executive's right to terminate the Executive's employment for Good
Reason shall not be affected by the Executive's incapacity due to physical or
mental illness. The Executive's continued employment shall not constitute
consent to, or a waiver of rights with respect to, any act or failure to act
constituting Good Reason hereunder. For purposes of any determination regarding
the existence of Good Reason, any claim by the Executive that Good Reason exists
shall be presumed to be correct unless the Company establishes to the Board by
clear and convincing evidence that Good Reason does not exist.
(Q) "Gross-Up Payment" shall have the meaning set forth in Section
6.2 hereof.
(R) "Notice of Termination" shall have the meaning set forth in
Section 7.1 hereof.
(S) "Pension Plan" shall mean any tax-qualified, supplemental or
excess benefit pension plan maintained by the Company and any other plan or
agreement entered into between the Executive and the Company which is designed
to provide the Executive with supplemental retirement benefits, and any
tax-qualified, supplemental or excess defined contribution plan maintained by
the Company and any other defined contribution plan or agreement entered into
between the Executive and the Company.
(T) "Person" shall have the meaning given in Section 3(a)(9) of
the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof,
except that such term shall not include (i) the Company or any of its
subsidiaries, (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its Affiliates, (iii) an
underwriter tempo-
22
<PAGE> 23
rarily holding securities pursuant to an offering of such securities, or (iv) a
corporation owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company.
(U) "Potential Change in Control" shall be deemed to have occurred
if the event set forth in any one of the following paragraphs shall have
occurred:
(I) the Company enters into an agreement, the consummation of
which would result in the occurrence of a Change in Control;
(II) the Company or any Person publicly announces an intention
to take or to consider taking actions which, if consummated, would constitute a
Change in Control;
(III) any Person becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 20% or more of either the
then outstanding shares of common stock of the Company or the combined voting
power of the Company's then outstanding securities (not including in the
securities beneficially owned by such Person any securities acquired directly
from the Company or its affiliates); or
(IV) the Board adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change in Control has occurred.
(V) "Retirement" shall be deemed the reason for the termination by
the Executive of the Executive's employment if such employment is terminated in
accordance with the Company's retirement policy, including early retirement,
generally applicable to its salaried employees.
(W) "Severance Payments" shall have the meaning set forth in
Section 6.1 hereof.
(X) "Tax Counsel" shall have the meaning set forth in Section 6.2
hereof.
23
<PAGE> 24
(Y) "Term" shall mean the period of time described in Section 2
hereof (including any extension, continuation or termination described therein).
(Z) "Total Payments" shall mean those payments so described in
Section 6.2 hereof.
IN WITNESS WHEREOF, the parties have duly executed this Agreement to be
effective as of the Effective Date.
TEMPLE-INLAND INC.
By:
----------------------------------------
Name: Kenneth M. Jastrow, II
Title: Chairman and Chief Executive Officer
EXECUTIVE
-------------------------------------------
Leslie K. O'Neal
Tier II: Corporate 24