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8-K
Nov 18, 5:19 PM ET
WEYERHAEUSER CO 8-K
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Contents
40
Article 1 Term of This Agreement
Article 2 Definitions
Article 3 Participation and Continuing Eligibility Under This Agreement
Article 4 COC Benefits
4.1 Right to COC Benefits. Subject to Section 4.6, the Executive shall be eligible to receive an offer of COC Benefits if the Executive’s employment with the Company ends for any reason specified in Section 4.2 (a) or (b). Receipt of COC Benefits shall disqualify the Executive from eligibility to receive any other severance benefits from the Company, including, without limitation, those under the Severance Agreement.
4.2 Qualifying Termination. The Executive shall be eligible to receive an offer of COC Benefits, as described in Section 4.3, only if Executive experiences a Qualifying Termination. For purposes of this Agreement, a “Qualifying Termination” means the occurrence of any one or more of the following events during the Protection Period of the Company:
4.3 Description of COC Benefits. In the event that the Executive becomes eligible to receive an offer of COC Benefits in accordance with Sections 4.1 and 4.2 (and, for the avoidance of doubt, subject to the Executive’s execution and non-revocation of the Non-Competition and Release Agreement as set forth in Section 4.6), the Company shall pay or provide the Executive with the following:
For the avoidance of doubt, the Executive’s equity incentive awards shall be treated in accordance with the terms of the applicable LTIP and the applicable award agreement. In addition, if any of the provisions of this Agreement conflict with the provisions of the LTIP or the applicable award agreement, the LTIP or the applicable award agreement shall control.
4.4 Termination for Cause or by the Executive Other Than for Good Reason. Following a COC of the Company, if the Executive’s employment is terminated either (i) by the Company for Cause or (ii) by the Executive (other than for Good Reason), no compensation or benefits shall be payable under this Agreement and the Executive’s benefits shall instead be determined in accordance with the Company’s applicable compensation and benefits plans and programs then in effect.
4.5 Notice of Termination. Any termination by the Company or by the Executive for Good Reason under this Article 4 shall be communicated by a Notice of Termination, which shall be delivered to the Executive (or to the Authorizing Executive, as applicable) no later than the Effective Date of Termination, unless the Executive is terminated for Cause, in which case no Notice of Termination is required. For purposes of this Agreement, a “Notice of Termination” shall mean a written notice that shall indicate whether or not such termination is for Cause and the Effective Date of Termination.
4.6 Delivery of Non-Competition and Release Agreement. The payment of COC Benefits is conditioned on the Executive’s timely execution, delivery and non-revocation of the Non-Competition and Release Agreement. The Company will deliver the Non-Competition and Release Agreement when it provides a Notice of Termination to the Executive or promptly following the Company’s receipt of a Notice of Termination from the Executive. The Non-Competition and Release Agreement becomes effective on the eighth day after the Executive executes it, provided that the Executive does not revoke it in the seven days after execution (“Release Effective Date”). In all cases, the Release Effective Date must be no later than the 60th day following the Effective Date of Termination (the “Release Deadline Date”). If the Release Effective Date is not before the Release Deadline Date, the Executive shall forfeit any right to COC Benefits. In no event shall any COC Benefits be paid or provided before the Non-Competition and Release Agreement becomes effective and irrevocable.
4.7 Resignations. Upon termination of Executive’s employment or service for any reason, as a condition to receiving the severance set forth in Section 4.3, Executive hereby agrees that Executive also resigns any and all positions with the Company or any of its Affiliates, whether as an officer, director, employee, or agent, in each case effective on the Effective Date of Termination. Executive hereby agrees to execute any and all documentation of such resignations upon request by the Company, but Executive shall be treated for all purposes as having so resigned upon the Effective Date of Termination or termination of service, regardless of when or whether Executive executes any such documentation. For the avoidance of doubt, Executive hereby agrees that the foregoing referenced termination of employment with the Company and resignations from any and all other positions with the Company or any of its Affiliates shall not be predicated or conditioned on Executive receiving the severance set forth in Section 4.2 or the Executive’s execution and non-revocation of the Non-Competition and Release Agreement in compliance with Section 4.6 of this Agreement.
Article 5 Form and Timing of COC Benefits
5.1 Form and Timing of COC Benefits. The COC Benefits described in Sections 4.3(a), (b), (c) and (d) shall be paid in cash to the Executive in a single lump sum, subject to the satisfaction of the Non-Competition and Release Agreement requirements described in Section 4.6, as soon as practicable following the Effective Date of Termination, but in no event later than sixty (60) days following the Effective Date of Termination and in no event later than the payment deadline for short-term deferrals under Treas. Reg. § 1.409A-1(b)(4) (or any successor provision).
5.2 Withholding of Taxes. The Company shall be entitled to withhold from any amounts payable under this Agreement all taxes as legally shall be required (including, without limitation, any United States federal taxes and any other state, city, or local taxes).
Article 6 The Company’s Payment Obligation
6.1 Payment Obligations Absolute. Except as provided in this Article 6 and Article 7, the Company’s obligation to make the payments and the arrangements provided for herein shall be absolute and unconditional, and shall not be affected by any circumstances, including, without limitation, any offset, counterclaim, recoupment, defense, or other right that the Company may have against the Executive or anyone else. All amounts payable by the Company hereunder shall be paid without notice or demand. Except as provided in this Article 6 and in Article 7, each and every payment made hereunder by the Company shall be final, and the Company shall not seek to recover all or any part of such payment from the Executive or from whosoever may be entitled thereto, for any reasons whatsoever.
6.2 Contractual Rights to Benefits. Subject to Article 1 and Section 6.3, this Agreement establishes and vests in the Executive a contractual right to the benefits to which the Executive may become entitled hereunder. However, nothing herein contained shall require or be deemed to require, or prohibit or be deemed to prohibit, the Company to segregate, earmark, or otherwise set aside any funds or other assets, in trust or otherwise, to provide for any payments to be made or required hereunder.
6.3 Forfeiture of COC Benefits and Other Payments. Notwithstanding any other provision of this Agreement to the contrary, if it is determined by the Company that the Executive has violated any of the restrictive covenants contained in the Executive’s Non-Competition and Release Agreement, the Executive shall be required to repay to the Company an amount equal to the economic value of all COC Benefits and other payments already provided to the Executive under this Agreement and the Executive shall forever forfeit the Executive’s rights to any unpaid COC Benefits and other payments hereunder. The COC Benefits shall be subject to (a) forfeiture provisions in any other agreements between the Executive and the Company and (b) any recoupment, clawback or similar policy of the Company as it may be in effect from time to time, as well as any similar provisions of applicable law, any of which could in certain circumstances require repayment or forfeiture of previously paid compensation.
Article 7 Dispute Resolution
7.1 Claims Procedure. The Executive may file a written claim relating to this Agreement with the Authorizing Executive, who shall consider such claim and notify the Executive in writing of his or her decision with respect thereto within ninety (90) days (or within such longer period not to exceed one hundred eighty (180) days, as the Authorizing Executive determines is necessary to review the claim, provided that the Authorizing Executive notifies the Executive in writing of the extension within the original ninety (90) day period). If the claim is denied, in whole or in part, the Executive may appeal such denial to the Committee, provided the Executive does so in writing within sixty (60) days of receiving the determination by the Authorizing Executive. The Committee shall consider the appeal and notify the Executive in writing of its decision with respect thereto within sixty (60) days (or within such longer period not to exceed one hundred twenty (120) days as the Committee determines is necessary to review the appeal, provided that the Committee notifies the Executive in writing of the extension within the original sixty (60) day period).
7.2 Finality of Determination. The determination of the Committee with respect to any question arising out of or in connection with the administration, interpretation, and application of this Agreement shall be final, binding, and conclusive on all persons and shall be given the greatest deference permitted by law.
Article 8 Tax Matters
8.2 Code Section 280G. In the event that part or all of the consideration, compensation or benefits to be paid to Executive under this Agreement together with the aggregate present value of payments, consideration, compensation and benefits under all other plans, arrangements and agreements applicable to Executive, constitute “excess parachute payments” under Section 280G(b) of the Code subject to an excise tax under Section 4999 of the Code (collectively, the “Parachute Amount”), the amount of excess parachute payments which would otherwise be
payable to Executive or for Executive’s benefit under this Agreement shall be reduced to the extent necessary so that no amount of the Parachute Amount is subject to an excise tax under Section 4999 of the Code (the “Reduced Amount”); provided that such amounts shall not be so reduced if, without such reduction, Executive would be entitled to receive and retain, on a net after tax basis (including, without limitation, after any excise taxes payable under Section 4999), an amount of the Parachute Amount which is greater than the amount, on a net after tax basis, that Executive would be entitled to retain upon receipt of the Reduced Amount.
Article 9 Successors and Assignment
9.1 Successors to the Company. The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) of all or substantially all of the business and/or assets of the Company or of any division or subsidiary thereof to expressly assume and agree to perform the Company’s obligations under this Agreement in the same manner and to the same extent that the Company would be required to perform them if no such succession had taken place. Failure of the Company to obtain such assumption and agreement prior to the effective date of any such succession shall be a material breach of this Agreement. For the purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Effective Date of Termination.
9.2 Assignment by the Executive. This Agreement shall inure to the benefit of and be enforceable by each Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees, and legatees. If the Executive dies while any amount would still be payable to the Executive hereunder had the Executive continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to the Executive’s Beneficiary. If the Executive has not named a Beneficiary, then such amounts shall be paid to the Executive’s devisee, legatee, or other designee, or if there is no such designee, to the Executive’s estate.
Article 10 Miscellaneous
10.1 Employment Status. Except as may be provided under any other agreement between the Executive and the Company, the employment of the Executive by the Company is “at will” and, prior to the effective date of a COC, may be terminated by either the Executive or the Company at any time, subject to applicable law.
10.2 Beneficiaries. The Executive may designate one or more persons or entities as the primary or contingent Beneficiaries of any COC Benefits owing to the Executive under this Agreement. Such designation must be in the form of a signed writing acceptable to the Committee and pursuant to such other procedures as the Committee may
decide. If no such designation is on file with the Company at the time of the Executive’s death, or if no designated Beneficiaries survive the Executive for more than fourteen (14) days, any COC Benefits owing to the Executive under this Agreement shall be paid to the Executive’s estate.
10.3 Number. Except where otherwise indicated by the context, the plural shall include the singular, and the singular shall include the plural.
10.4 Severability. In the event any provision of this Agreement shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of this Agreement, and this Agreement shall be construed and enforced as if the illegal or invalid provision had not been included. Further, the captions of this Agreement are not part of the provisions hereof and shall have no force and effect.
10.5 Counterparts, Facsimiles & Email Transmissions. This Agreement and all documents relating hereto may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “pdf” or similar format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or signature page were an original thereof.
10.6 Modification. Except as provided in Article 1, no provision of this Agreement may be modified, waived, or discharged following a COC unless such modification, waiver, or discharge is agreed to in writing and signed by the Executive and by an authorized member of the Committee or a designee of such authorized member of the Committee, or by the respective parties’ legal representatives and successors.
10.7 Effect of Agreement. This Agreement shall completely supersede and replace any and all portions of any contracts, plans, provisions, or practices pertaining to severance entitlements owing to the Executive from the Company (including the Executive Change of Control Agreement that is scheduled to terminate on December 31, 2025), and is in lieu of any notice requirement, policy, or practice. As such, the COC Benefits described herein shall serve as the Executive’s sole recourse with respect to termination of employment by the Company following a COC. In addition, COC Benefits shall not be counted as “compensation,” or any equivalent term, for purposes of determining benefits under other agreements, plans, provisions, or practices owing to the Executive from the Company, except to the extent expressly provided therein. Except as otherwise specifically provided for in this Agreement, the Executive’s rights under all such agreements, plans, provisions, and practices continue to be subject to the respective terms and conditions thereof.
10.8 Applicable Law. To the extent not preempted by the laws of the United States, the laws of the state of Washington shall be the controlling law in all matters relating to this Agreement.
1. Parties.
In consideration of the payments to be made under the COC Agreement, which Executive acknowledges Executive would not otherwise be entitled to receive, Executive agrees that the consideration provided under the COC Agreement represents settlement in full of all outstanding obligations owed to Executive by the Company and its current and former officers, directors, employees, agents, investors, attorneys, shareholders, administrators, affiliates, direct and indirect parents and subsidiaries, benefit plans, plan administrators, insurers, trustees, divisions, and subsidiaries, predecessor and successor corporations and assigns, and all persons acting with or on behalf of them (collectively, the “Releasees”). Executive, on Executive’s own behalf and on behalf of Executive’s heirs, family members, executors, agents, and assigns, hereby and forever releases and discharges the Releasees, and each of them, from any and all claims, liability, demands, rights, damages, costs, attorneys’ fees, and expenses of whatever nature that exist as of the date of execution of this Release Agreement, whether known or unknown, foreseen or unforeseen, asserted or unasserted, including, but not limited to: (i) all claims arising out of Executive’s employment and/or Executive’s termination from employment, including all claims arising out of applicable state and federal laws, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act, the Employee Retirement Income Security Act of 1974, state and federal Family Leave Acts, and any other applicable tort, contract, or other common law theories, (ii) any and all claims relating to, or arising from, Executive’s right to purchase, or actual purchase of shares of stock of the Company and/or any of the Releasees, including, without limitation, any claims for fraud, misrepresentation, breach of fiduciary duty, breach of duty under applicable state corporate law, and securities fraud under any state or federal law, (iii) any and all claims for wrongful discharge of employment; termination in violation of public policy; discrimination; harassment; retaliation; breach of contract, both express and implied; breach of covenant of good faith and fair dealing, both express and implied; promissory estoppel; negligent or intentional infliction of emotional distress; fraud; negligent or intentional misrepresentation; negligent or intentional interference with contract or prospective economic advantage; unfair business practices; defamation; libel; slander; negligence; personal injury; assault; battery; invasion of privacy; false imprisonment; conversion; and disability benefits, (iv) any and all claims under any policy, agreement, understanding or promise, written or oral, formal or informal, between any Releasee and Executive existing as of the date hereof (whether or not known or arising before, on or after the date Executive executes this Release Agreement), (v) any and all claims for violation of the federal or any state constitution, (vi) any and all claims arising out of any other laws and regulations relating to employment or employment discrimination, (vii) any claim for any loss, cost, damage, or expense arising out of any dispute over the non-withholding or other tax treatment of any of the proceeds received by Executive as a result of the COC Agreement, (viii) any and all claims for attorneys’ fees and costs and (ix) any other claims whatsoever.