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Exhibit 10
(d)
CIC Tier I Canada
EXECUTIVE OFFICER CHANGE
IN CONTROL AGREEMENTS
Craig D. Neeser is a party to the
Executive Change in Control Agreement set out in full
below.
1
CIC Tier I Canada
Executive Change in
Control
Agreement
(Tier I)
Weyerhaeuser Company and
Weyerhaeuser
Company Limited
January 1,
2008
2
CIC Tier I Canada
Contents
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Article 1.
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Term of
the Agreement |
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1 |
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Article 2.
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Definitions |
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2 |
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Article 3.
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Participation and Continuing Eligibility under this
Agreement |
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6 |
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Article 4.
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Severance
Benefits |
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6 |
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Article 5.
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Form and
Timing of Severance Benefits |
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Article 6.
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The
Company’s Payment Obligation |
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9 |
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Article 7.
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Dispute
Resolution |
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10 |
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Article 8.
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Outplacement Assistance |
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10 |
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Article 9.
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Successors and Assignment |
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11 |
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Article 10.
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Miscellaneous |
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11 |
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CIC Tier I Canada
Weyerhaeuser Company and Weyerhaeuser
Company Limited
Executive Change in Control Agreement
(Tier I)
THIS EXECUTIVE CHANGE IN
CONTROL AGREEMENT (Tier I) is made and entered into by and among
Weyerhaeuser Company, Weyerhaeuser Company Limited (hereinafter
referred to collectively as the “Company” unless the
context otherwise requires and separately as “Weyerhaeuser
Company” and “WYL”) and
(hereinafter referred to as the
“Executive”).
WHEREAS, the Board of
Directors of the Company has approved the Company entering into
change in control agreements with certain key executives of the
Company;
WHEREAS, the Executive is a
key executive of the Company;
WHEREAS, should the
possibility of a Change in Control of the Company arise, the Board
believes it is imperative that the Company and the Board should be
able to rely upon the Executive to continue in his or her position,
and that the Company should be able to receive and rely upon the
Executive’s advice, if requested, as to the best interests of
the Company and its shareholders without concern that the Executive
might be distracted by the personal uncertainties and risks created
by the possibility of a Change in Control; and
WHEREAS, should the
possibility of a Change in Control arise, in addition to his or her
regular duties, the Executive may be called upon to assist in the
assessment of such possible Change in Control, advise management
and the Board as to whether such Change in Control would be in the
best interests of the Company and its shareholders, and to take
such other actions as the Board might determine to be
appropriate.
NOW THEREFORE, to assure the
Company that it will have the continued dedication of the Executive
and the availability of his or her advice and counsel
notwithstanding the possibility, threat, or occurrence of a Change
in Control of the Company, and to induce the Executive to remain in
the employ of the Company, and for other good and valuable
consideration, the Company, WYL and the Executive agree as
follows:
Article 1. Term of the
Agreement
Subject to the provisions of
Article 10 hereof, this Agreement will commence on the Effective
Date and shall continue in effect for three (3) full calendar
years. However, at any time before the end of such three-year
(3) period and, at any time before the end of any extended
term, the Committee may, in its discretion, extend the term of this
Agreement for any period of time up to three (3) additional
years. Notwithstanding the foregoing, this Agreement is subject to
annual review and may be amended or otherwise modified by the
Committee in its sole discretion subsequent to such annual review
provided that no Change in Control shall have occurred.
However, if a Change in
Control occurs during the term of this Agreement, this Agreement
will remain in effect for the longer of: (i) twenty-four
(24) full calendar months beyond the month in which such
Change in Control occurred; (ii) until all obligations of the
Company to the Executive hereunder have been fulfilled, and until
all benefits required hereunder have been paid to the
Executive.
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CIC Tier I Canada
Article 2. Definitions
Whenever used in this
Agreement, the following terms shall have the meanings set forth
below and, when the meaning is intended, the initial letter of the
word is capitalized:
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(a) |
“Agreement” means this Executive Change in
Control Agreement (Tier I). |
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(b) |
“Base Salary” means the salary of record
paid to the Executive as annual salary, excluding amounts received
under incentive or other bonus plans, whether or not
deferred. |
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(c) |
“Beneficiary” means the persons or entities
designated or deemed designated by an Executive pursuant to
Section 10.2 hereof. |
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(d) |
“Board” means the Board of Directors of
Weyerhaeuser Company. |
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(e) |
“Cause” means Executive’s: |
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(i) |
Willful and continued failure to perform substantially
Executive’s duties with the Company after the Company
delivers to Executive written demand for substantial performance
specifically identifying the manner in which Executive has not
substantially performed Executive’s duties; |
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(ii) |
Conviction of an offence punishable by indictment;
or |
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(iii) |
Willful engagement in illegal conduct or gross misconduct which
is materially and demonstrably injurious to the
Company. |
For purposes of this
Section 2(e), no act or omission by Executive shall be
considered “willful” unless it is done or omitted in
bad faith or without reasonable belief that Executive’s
action or omission was in the best interests of the Company. Any
act or failure to act based upon: (i) authority given pursuant
to a resolution duly adopted by the Board, or (ii) advice of
counsel for the Company, shall be conclusively presumed to be done
or omitted to be done by Executive in good faith and in the best
interests of the Company. For purposes of subsections (i) and
(iii) above, Executive shall not be deemed to be terminated
for Cause unless and until there shall have been delivered to
Executive a copy of a resolution duly adopted by the affirmative
vote of not less than three quarters (3/4) of the entire
membership of the Board at a meeting called and held for such
purpose (after reasonable notice is provided to Executive and
Executive is given an opportunity, together with counsel, to be
heard before the Board) finding that in the good faith opinion of
the Board Executive is guilty of the conduct described in
subsection (i) or (iii) above and specifying the
particulars thereof in detail.
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(f) |
“Change in Control” or “CIC” of
the Company shall be deemed to have occurred as of the first day
that any one or more of the following conditions shall have been
satisfied: |
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CIC Tier I Canada
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(i) |
Any Person, but excluding the Company and any subsidiary of the
Company and any employee benefit plan (or related trust) sponsored
or maintained by the Company or any subsidiary of the Company
(collectively, “Excluded Persons”), directly or
indirectly, becomes the Beneficial Owner of securities of
Weyerhaeuser Company representing thirty-five percent (35%) or
more of the combined voting power of the Company’s then
outstanding securities with respect to the election of directors of
Weyerhaeuser Company and such ownership continues for at least a
period of thirty (30) days (with the end of such period being
deemed the effective date of the CIC); or |
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(ii) |
During any twenty-four (24)-consecutive month period, the
individuals who, at the beginning of such period, constitute the
Board of Directors (the “Incumbent Directors”) cease
for any reason other than death to constitute at least a majority
of the Board of Directors, provided, however, that, except as set
forth in the following sentence, an individual who becomes a member
of the Board subsequent to the beginning of the 24-month period
shall be deemed to have satisfied such 24-month requirement (and be
an Incumbent Director) if such director was elected by, or on the
recommendation of or with the approval of, at least two-thirds of
the directors who then qualified as Incumbent Directors either
actually (because they were directors at the beginning of such
period) or by prior operation of the provisions of this
Section 2(f)(ii). Notwithstanding the proviso set forth in the
preceding sentence, if any such individual initially assumes office
as a result of or in connection with either an actual or threatened
solicitation with respect to the election of directors (as such
terms are used in Rule 14a-12(c) 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, then such individual shall not be considered an Incumbent
Director. For purposes of this Section 2(f)(ii), if at any
time individuals who initially assumed office as a result of or in
connection with an arrangement or understanding between the Company
and any Person (an “Entity Designee”) constitute at
least one-half of the Board, none of such Entity Designees shall be
considered Incumbent Directors from that time forward;
or |
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(iii) |
There is consummated: |
(a) a plan of complete
liquidation of Weyerhaeuser Company; or
(b) a sale or
disposition of all or substantially all Weyerhaeuser
Company’s assets in one or a series of related transactions;
or
(c) a merger, consolidation,
or reorganization of Weyerhaeuser Company or the acquisition of
outstanding common stock and as a result of or in connection with
such transaction (A) thirty-five percent (35%) or more of
the outstanding common stock or the voting securities of the
Company outstanding immediately prior thereto or the outstanding
shares of common stock or the combined voting power of the
outstanding voting securities of the surviving entity are owned,
directly or indirectly, by any other corporation or Person other
than (x) an Excluded Person or (y) a Person who is, or if
such Person beneficially owned 5% or more of the
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CIC Tier I Canada
outstanding common stock
would be, eligible to report such Person’s beneficial
ownership on Schedule 13G pursuant to the rules under
Section 13(d) of the Exchange Act or (z) a Person that
has entered into an agreement with Weyerhaeuser Company pursuant to
which such Person has agreed not to acquire additional voting
securities of Weyerhaeuser Company (other than pursuant to the
terms of such agreement), solicit proxies with respect to
Weyerhaeuser Company’s voting securities or otherwise
participate in any contest relating to the election of the
Directors, or take other actions that could result in a Change in
Control of Weyerhaeuser Company; provided that this exclusion shall
apply only so long as such agreement shall remain in effect, or
(B) the voting securities of Weyerhaeuser Company outstanding
immediately prior thereto do not immediately after such transaction
continue to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than
sixty percent (60%) of the combined voting power of the voting
securities of Weyerhaeuser Company (or such surviving entity)
outstanding immediately after such merger, consolidation, or
reorganization.
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(g) |
“Committee” means the Compensation Committee
of the Board, or any other committee appointed by the Board to
perform the functions of the Compensation Committee. |
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(h) |
“Disability” has the meaning ascribed to it
in the WYL’s Retirement Plan for Salaried Employees, or in
any successor to such plan. |
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(i) |
“Effective Date” means January 1, 2008,
or such other date as the Board shall designate. |
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(j) |
“Effective Date of Termination” means the
date on which a Qualifying Termination occurs which triggers the
payment of Severance Benefits hereunder. |
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(k) |
“Executive” means a key executive of WYL who
has been presented with and signed this Agreement. |
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(l) |
“Good Reason” means, without the
Executive’s express written consent, the occurrence of any
one or more of the following events: |
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(i) |
A material reduction in the Executive’s authority, duties
or responsibilities existing immediately before the
CIC; |
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(ii) |
Within two (2) years following a Change in Control, and
without the Executive’s consent, the Company’s
requiring the Executive to be based at a location which is at least
sixty-five (65) kilometres farther from the Executive’s
primary residence immediately before a Change in Control than is
such residence from the Company’s headquarters, immediately
before a Change in Control, except for required travel on the
Company’s business to an extent substantially consistent with
the Executive’s business obligations as of the Effective
Date; |
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CIC Tier I Canada
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(iii) |
A material reduction by the Company of the Executive’s
Base Salary as in effect immediately before the CIC; |
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( iv ) |
A material reduction in the benefit coverage in the aggregate
provided to the Executive immediately before the CIC ;
provided, however, that reductions in the level of benefits
coverage shall not be deemed to be “Good Reason” if the
Executive’s overall benefits coverage is substantially
consistent with the average level of benefits coverage of other
executives who have positions commensurate with the
Executive’s position at the acquiring company; |
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(v) |
A material reduction in the Executive’s level of
participation, including the Executive’s target-level
opportunities, in any of the Company’s short- and/or
long-term incentive compensation plans in which the Executive
participates as of the Effective Date (for this purpose a material
reduction shall be deemed to have occurred if the aggregate
“incentive opportunities” are reduced by ten percent
(10%) or more); or a material increase in the relative
difficulty of the measures used to determine the payouts under such
plans (as reasonably determined by the Executive) provided,
however, that reductions in the levels of participation or increase
in relative difficulty of payout measures shall not be deemed to be
“Good Reason” if the Executive’s reduced level of
participation or difficulty of measures in each such program
remains substantially consistent with the level of participation or
difficulty of the measures of some or all other executives who have
positions commensurate with the Executive’s position at the
acquiring company; or |
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(vi) |
The failure of the Company to obtain a satisfactory agreement
from any successor to the Company to assume and agree to perform
this Agreement, as contemplated in Article 9. |
Under this Agreement, Good
Reason shall not be deemed to exist unless a “Change in
Control” has occurred within the time frame described in
Section 4.2. Moreover, in no event shall the Executive’s
resignation be for Good Reason unless (A) an event set forth
above shall have occurred and the Executive provides the Company
with written notice thereof within thirty (30) days after the
Executive has knowledge of the occurrence or existence of such
event, which notice specifically identifies the event that the
Executive believes constitutes Good Reason, and (B) the
Company fails to correct the event so identified in all material
respects within thirty (30) days after receipt of such
notice.
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(m)
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“Income Tax
Act” means the provisions of the Income Tax Act
(Canada), R.S.C. 1985, c.1 (5 th Supplement, as amended), and the regulations
thereunder.
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(n) |
“Non-Competition and Release Agreement” is
an agreement, in substantially the form attached hereto in Annex A,
executed by and between Executive and the Company as a condition to
Executive’s receipt of the benefits described in
Section 4.3. |
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(o) |
“Person” includes any natural person,
partnership, corporation, trust, sole proprietorship, joint
venture, government authority or association. |
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CIC Tier I Canada
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(p) |
“Qualifying Termination” means any of the
events described in Section 4.2 hereof, the occurrence of
which triggers the payment of Severance Benefits under
Section 4.3 hereof. |
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(q) |
“Retirement” means early or normal
retirement under WYL’s Retirement Plan for Salaried
Employees. |
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(r) |
“Severance Benefits” means the Severance
Benefits associated with a Qualifying Termination, as described in
Section 4.3. |
Article 3. Participation and
Continuing Eligibility under this Agreement
3.1 Participation.
Subject to Section 3.2 hereof, as well as the remaining terms
of this Agreement, Executive shall remain eligible to receive
benefits hereunder during the term of the Agreement.
3.2 Removal from
Coverage. If, at the Executive’s option and provided that
the Company’s consent is obtained, the Executive’s job
classification is reduced and such reduction causes the
Executive’s job classification to be below the minimum level
required for eligibility to continue to be covered by severance
protection as determined at the sole discretion of the Committee,
the Committee may remove the Executive from coverage under this
Agreement. Such removal shall be effective three (3) months
after the date the Company notifies the Executive of such removal.
Removals occurring within six (6) months before a CIC, or
within twenty-four (24) months after a CIC, shall be null and
void for purposes of this Agreement.
Article 4. Severance
Benefits
4.1 Right to Severance
Benefits. The Executive shall be entitled to receive from the
Company Severance Benefits if
(a) the Executive’s
employment with the Company shall end for any reason specified in
Section 4.2; and
(b) the Executive is not
(i) reemployed by the Company or any subsidiary or affiliate
of the Company whether in a salaried, hourly, temporary or
full-time capacity or, (ii) retained as a consultant or
contractor by the Company or any subsidiary or affiliate of the
Company, or (iii) retained as a consultant or contractor by an
entity acquiring the Company, unless the reemployment or retention
of such Executive has the prior written approval of the Senior Vice
President, Human Resources, of the Company.
Receipt of Severance Benefits
shall disqualify the Executive from eligibility to receive any
other severance benefits from the Company, including, without
limitation, those under any Executive Severance Agreement between
the Company and the Executive, as such agreement may be amended,
supplemented or otherwise modified from time to time, or, if such
agreement is no longer in effect, any successor agreement
thereto.
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CIC Tier I Canada
4.2 Qualifying
Termination. The occurrence of any one or more of the following
events within the six (6) full calendar month period before
the effective date of a CIC, or within twenty-four (24) full
calendar months following the effective date of a CIC of the
Company shall trigger the payment of Severance Benefits to the
Executive under this Agreement:
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(a) |
An involuntary termination of the Executive’s employment
by the Company, authorized by the Company’s Senior Vice
President of Human Resources, for reasons other than for Cause,
mandatory Retirement under the Company’s applicable policies
or the Executive’s death, Disability or voluntary termination
of employment (including voluntary Retirement) without Good Reason;
or |
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(b) |
a voluntary termination by the Executive for Good
Reason. |
4.3 Description of
Severance Benefits. If the Executive becomes entitled to
receive Severance Benefits (and further contingent upon the proper
execution of the Non-Competition and Release Agreement as set forth
in Section 4.8), as provided in Sections 4.1 and 4.2, and
subject to the cap described in Section 6.1, the Company shall
pay to the Executive and provide him or her with the
following:
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(a) |
An amount equal to three (3) times the highest rate of the
Executive’s annualized Base Salary rate in effect at any
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