exv10w17






Exhibit 10.17




SECOND AMENDMENT TO EMPLOYMENT AGREEMENT




     THIS SECOND AMENDMENT TO EMPLOYMENT AGREEMENT (“Amendment”) is entered into as of November 6,
2009 by and between TEMPLE-INLAND INC., a Delaware corporation (the “Company”), and DOYLE R. SIMONS
(the “Executive”).



     WHEREAS, the Company and the Executive currently are party to an Employment Agreement dated
August 9, 2007, as amended by an amendment entered into as of November 7, 2008 (as amended, the
“Existing Agreement”); and



     WHEREAS, the Company and the Executive wish to amend the Existing Agreement in ways designed
to ensure that certain payments under the Existing Agreement remain deductible notwithstanding the
limitations set forth in Section 162(m) of the Internal Revenue Code of 1986, as amended.



     NOW, THEREFORE, the Company and the Executive hereby agree as follows:



     1. Section 3(d) is amended to substitute “5(c)” for “5(c)(ix)” where the latter term appears
therein.



     2. A new Section 4(g) is added immediately following Section 4(f) to read in its entirety as
follows:




     (g) Notwithstanding the foregoing provisions of this Section 4, the Company agrees
that it will not terminate the Executive’s employment without Cause prior to a Change in
Control as defined in Appendix B hereto where such termination is at the request or
direction of a Person (as defined in Appendix B hereto) who has entered into an agreement
with the Company the consummation of which would constitute a Change in Control and that
prior to a Change in Control it will not take any action or fail to take any action, in
either event at the request or direction of such a Person, that would cause a circumstance
or event entitling the Executive to terminate employment for Good Reason. For purposes of
any determination regarding the applicability of the immediately preceding sentence, any
position taken by the 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.



     3. Section 5(c)(v) is amended to read in its entirety as follows:




     (v) All bonus or incentive awards that have a scheduled award, vesting or performance
period (hereinafter, an “award period”) of one fiscal year or less (“Annual Awards”) shall
become fully vested on the Date of Termination and shall be paid (or unrestricted shares
issued) on the Applicable Award Payment Date; provided, however, that in
the case of Annual Awards granted after 2009



 









 






and that pursuant to their terms vest or become payable if one or more specified
performance goals or criteria (other than the continued performance of services) are
achieved or the amount of the Award that vests or becomes payable depends upon the extent
of achievement of one or more such performance goals or criteria, such Annual Award shall
be paid only if the Severance Performance Goal is achieved. The amount paid (or number of
unrestricted shares issued) in respect of an Annual Award that becomes payable pursuant to
the terms of this Section 5(c)(v) shall be equal to the amount of the Award (assuming
continued employment until the end of the award period and the achievement, at the target
level, of any performance goals or criteria established with respect to such Award)
multiplied by a fraction the numerator of which is the number of full months and any
fractional portion of a month during the period from the first day of the award period for
the Annual Award through the Date of Termination and the denominator of which is the total
number of months in such award period (or if such fraction is greater than 1/2, multiplied by
one (1)). This Section 5(c)(v) shall, as of the date of grant of any Annual Award granted
after 2009, form a part of the terms of such Award.



     4. Section 5(c)(ix) is amended to read in its entirety as follows:




     (ix) Each stock option to acquire common stock of the Company and each stock
appreciation right in respect of the Company’s common stock held by the Executive as of the
Date of Termination shall (A) to the extent not already vested on the Date of Termination,
become fully vested on the Date of Termination and (B) shall, to the extent not previously
exercised, be exercisable following the Date of Termination for the full term of such
option or stock appreciation right. The Company also represents that it caused the
subsidiaries holding the Company’s real estate and financial services operations prior to
their spin-off in 2007 to provide that vesting shall accelerate and restrictions shall
lapse on all unvested or restricted equity or equity-based awards in respect of each such
company held by the Executive as of the Date of Termination and that each stock option to
acquire common stock of such company and each stock appreciation right in respect of such
company held by the Executive as of the Date of Termination shall remain exercisable
following the Date of Termination for the full term of such option or stock appreciation
right.



     5. Section 5(c)(x) is amended to read in its entirety as follows:




     (x) All incentive awards (including but not limited to restricted units, restricted
retention units, restricted stock units, performance stock units, restricted stock, and
performance awards) that have an award period in excess of one fiscal year (“Long-Term
Incentive Awards”) shall become fully vested on the Date of Termination and shall be paid
(or unrestricted shares issued) on the Applicable Award Payment Date; provided, however,
that in the case of a Long-Term Incentive Award granted after January 1, 2009 and which
pursuant to its terms vests and/or becomes payable (or unrestricted shares issuable) only
if one or more



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specified performance goals or criteria (other than the continued performance of
services) is achieved, such Long-Term Incentive Award shall be paid (or unrestricted shares
issued) only if the Severance Performance Goal is achieved. This Section 5(c)(x) shall
constitute an amendment to any Long-Term Incentive Awards granted after January 1, 2009 and
before November 6, 2009 and shall, as of the date of grant of any Long-Term Incentive
Awards granted on or after November 6, 2009, form a part of the terms of the Award. Not
later than the later of the Date of Termination or 30 days after the end of any potential
Applicable Measurement Period for an Award the payment of which is contingent upon
achievement of the Severance Performance Goal (each, a “Performance Award”), the Committee
shall determine whether the Severance Performance Goal has been achieved as of the end of
such potential Applicable Measurement Period. If the Committee determines that the
Severance Performance Goal has been achieved for such Applicable Measurement Period, the
Committee shall on the date of such determination certify such achievement in writing in a
manner that satisfies the requirements of Treasury Regulation Section 1.162-27(e)(5).
Neither Section 5(c)(v) hereof nor this Section 5(c)(x) shall apply to stock options and
stock appreciation rights covering the Company’s common stock.



     6. A new Section 5(c)(xi) is added immediately following Section 5(c)(x) to read in its
entirety as follows:




     (xi) For purposes of this Section 5, the following terms shall have the meanings
indicated:




     (A) “Applicable Award Payment Date” means, with respect to an Award, the later
of (a) the Date of Termination or as soon as practicable thereafter (but in any
event within five (5) days following the Date of Termination), or (b) with respect
to a Performance Award, the date that the Committee certifies achievement of the
Severance Performance Goal in a manner that satisfies Treasury Regulation Section
1.162-27(e)(5) or as soon as practicable thereafter (but in any event within five
(5) days following such certification).




     (B) “Applicable Measurement Period” means the period beginning on the first
day of the award period for an Award and ending on the last day of the later of (a)
the second fiscal quarter preceding the Date of Termination, and (b) the last day
of the first fiscal quarter that would result in the Severance Performance Goal
being established as of a date that satisfies Treasury Regulation Section
1.162-27(e)(2)(i) (the later of such dates, being the “Initial Measurement Date”);
provided, however, that if the Severance Performance Goal is not
satisfied as of the Initial Measurement Date, the Applicable Measurement Period
shall end as of the last day of the first fiscal quarter, if any, after the Initial
Measurement Date and on or before the last day of the last fiscal quarter in the
original award period for the Award that the Severance Performance Goal is



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satisfied. By way of example, assume that the Executive is granted an annual
bonus award on February 4, 2011 that is contingent upon achievement of a specified
performance goal for the Company’s 2011 fiscal year. The Executive’s employment is
then terminated by the Company without Cause on May 1, 2011. The Initial
Measurement Date would be the fiscal quarter ending July 2, 2011 because July 2,
2011 is the first end of a fiscal quarter as of which, in accordance with Treasury
Regulation Section 1.162-27(e)(2)(i), the grant date of the annual bonus award
(February 4, 2011) would not occur after expiration of more than 25% of the
Applicable Measurement Period (January 1, 2011 through July 2, 2011). If the
Severance Performance Goal is not satisfied as of July, 2, 2011 but is subsequently
satisfied as of October 1, 2011, the Applicable Measurement Period would end as of
October 1, 2011. If the Severance Performance Goal is not satisfied as of either
July, 2, 2011 or October 1, 2011, but is subsequently satisfied as of December 31,
2011, the Applicable Measurement Period would end as of December 31, 2011. If the
Severance Performance Goal is not satisfied as of July 2, 2011, October 1, 2011, or
December 31, 2011, the annual bonus award would not be paid.




     (C) “Award” means an Annual Award or a Long-Term Incentive Award.




     (D) “Committee” means a compensation committee within the meaning of Treasury
Regulation Section 1.162-27(c)(4).




     (E) “EBITDA” means segment operating income minus general and administrative
expenses and minus share-based compensation, plus depreciation and amortization,
all as determined in accordance with GAAP and reported in the Company’s financial
statements.




     (F) “Peer Group” means Abitibi-Bowater, Appleton Papers Inc., Boise Inc.,
Canfor Corporation, Caraustar Industries, Inc., Cascades Inc., Catalyst Paper
Corporation, Domtar Inc., Glatfelter (P.H.) Company, Graphic Packaging,
International Paper Company, MeadWestvaco Corporation, Mercer International Inc.,
Neenah Paper Inc., Newark Group (The) Inc., NewPage Corp., Packaging Corporation of
America, Rock-Tenn Company, Smurfit-Stone Container Corporation, Temple-Inland
Inc., Verso Paper, Wausau Paper Corp., and West Fraser Timber Co.; provided,
however, that a company will be removed from the Peer Group if for any year or
quarter (as applicable) during the Award Period (a) it does not file either (i) a
Form 10-K or Form 10-Q (as applicable), or (ii) a Form 40-F or Form 6-K (as
applicable), or (b) less than 80% of its total revenues (as reported in the most
recently filed Form 10-K or in the case of a Canadian company that does not file a
Form 10-K, the Canadian



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company’s most recently filed Form 40-F) are from either (i) paper
manufacturing/conversion or (ii) lumber and panels.




     (G) “Pension Plan” means any tax-qualified or non-qualified defined benefit
pension plan, including supplemental or excess benefit pension plans 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 retirement benefits,
and any tax-qualified or non-qualified defined contribution pension plan, including
any supplemental or excess defined contribution or individual account plan
maintained by the Company and any other defined contribution or individual account
plan or agreement entered into between the Executive and the Company.




     (H) “ROI” means operating income, excluding Significant Unusual Items, divided
by beginning of year total assets, excluding certain assets (assets held for sale,
municipal bonds related to capital leases, financial assets of special purpose
entities, discontinued operations, and acquisitions/divestitures on a weighted
average basis), and less current liabilities (excluding the current portion of
long-term debt). Significant Unusual Items are income items reported in a Form
10-K or Form 40-F that represent the recognition of income from multiple years’
activities in the current year (for example, gain on the sale or disposition of an
asset, and refunds, rebates, settlements, and credits that represent recognition of
income from multiple years’ activities). An item will be included as a Significant
Unusual Item only if it exceeds $1 million. If any portion of an Applicable
Measurement Period is not a full fiscal year, ROI will be determined for such
partial fiscal year in accordance with the preceding provisions based on the
applicable Forms 10-Q or Forms 6-K for the applicable fiscal quarter(s) for such
partial fiscal year, and ROI for such partial fiscal year shall be weighted as a
partial fiscal year for purposes of determining ROI over the Applicable Measurement
Period.




     (I) “Severance Performance Goal” means the Company having, over the Applicable
Measurement Period, either (a) positive EBITDA or (b) an ROI that falls within the
top three quartiles as compared to the Peer Group.



     7. Section 5(e) is amended by substituting “5(c)(i), (iii), (iv) and (x) hereof” for “5(c)(i),
(iii), (iv) and (v) hereof” where the latter phrase appears and by substituting “5(c)(i), (iii),
(iv) or (x) hereof” for “5(c)(i), (iii), (iv) or (v) hereof” in both places the latter phrase
appears.



     8. Except as modified above, the Existing Agreement shall continue in effect in accordance
with its terms.



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     IN WITNESS WHEREOF, the parties have executed this Amendment effective as of the date first
above written.



	 	 	 	 	 
	 	COMPANY



TEMPLE-INLAND INC., a Delaware

  corporation

 	 
	 	By:  	/s/ Dr. E. Linn Draper, Jr.
 	 
	 	 	Name:  	Dr. E. Linn Draper, Jr. 	 
	 	 	Title:  	Lead Director 	 
	 
	 	EXECUTIVE

 	 
	 	  	/s/ Doyle R. Simons
 	 
	 	 	Doyle R. Simons 	 
	 	 	 	 
	 




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