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EXHIBIT
10.41
E MPLOYMENT
A GREEMENT
THIS EMPLOYMENT AGREEMENT
(“ Agreement ”) is made as of
December 18, 2006 between NewPage Corporation (“
Company ”) and Jason W. Bixby (“
Executive ”). The Company and Executive agree
as follows:
1. Employment and
Acceptance . The Company will employ Executive, and
Executive accepts employment with the Company, subject to the terms
of this Agreement, effective as of December 18, 2006 (the “
Effective Date ”).
2. Term . This
Agreement and the employment relationship established by this
Agreement will continue from the Effective Date until terminated by
either party in accordance with Section 5 (the “
Term ”).
3. Duties and Title
.
3.1 Title
. The Company will employ Executive to render exclusive and
full-time services to the Company and certain designated
subsidiaries and affiliates. Executive will serve in the capacity
of Vice President and Chief Financial Officer of NewPage Holding
Corporation (“ Holding ”) and the
Company. Executive will also serve during the Term in executive
positions for one or more of the Company’s subsidiaries and
affiliates for no additional consideration.
3.2 Duties
. Executive will have such authority and responsibilities and
will perform such executive duties as are customarily performed by
the chief financial officer of businesses similar to those of the
Company or assigned to Executive by the Chief Executive Officer of
the Company (the “ CEO ”) or the Board of
Directors of Holding (“ Holding Board ”).
Executive will report to the CEO. Executive will devote all his
full working-time and attention to the performance of such duties
and to the promotion of the business and interests of the Company
and its subsidiaries and affiliates. This provision will not
prevent Executive from acting as an advisor to or a member of the
board of directors of any civic or charitable organization, so long
as those actions do not violate Section 7 or interfere with
Executive’s performance of his duties under this
Agreement.
3.3 Location
. The principal place of Executive’s employment will be
at the Company’s headquarters in the Dayton, Ohio
area.
4. Compensation by the
Company .
4.1 Base
Salary . As compensation for all services rendered pursuant
to this Agreement, the Company will pay to Executive, an annual
base salary of three hundred thousand dollars ($300,000), payable
in accordance with the payroll practices of the Company (“
Base Salary ”). Each year during the Term, the
Holding Board will conduct a review of Executive’s Base
Salary and, in its sole discretion, may increase Executive’s
Base Salary. Once increased, Base Salary may not be decreased. For
the purposes of this Agreement, Base Salary means Executive’s
base salary as increased pursuant to this
Section 4.1.
4.2 Annual
Bonus . For performance periods during the Term, Executive
will be entitled to participate in the NewPage Corporation Annual
Management Incentive Plan approved annually by the Board of
Directors of the Company (the “ Annual Incentive
Plan ”). Executive’s target bonus will be 65%
of Base Salary for achieving targets set annually by the Board of
Directors of the Company in the Annual Incentive Plan. Each annual
bonus (“ Annual Bonus ”) will be paid on
or before March 15th of the year following the tax year in
which the relevant services required for payment have been
performed. There will be no cap on the amount of any Annual Bonus.
Executive will not receive a bonus for 2006.
4.3
Participation in Employee Benefit Plans . Executive
will be entitled during the Term to participate in the benefit
plans of the Company that may be available to other senior
executives of the Company, on the same terms as those other
executives. The Company may at any time amend, modify, suspend or
terminate any employee benefit plan, program or arrangement for any
reason in its sole discretion.
4.4 Vacation
. Executive will be entitled to four weeks of paid vacation
during each calendar year during the Term. Vacation days will be
prorated for any partial year based on the number of days elapsed
in that year. Executive is not entitled to payment for unused
vacation days upon the termination of his employment except as set
forth in Section 5. The accrual and carry-over of vacation
days will be in accordance with Company policy from time to time in
effect.
4.5 Expense
Reimbursement . During the Term, Executive will be entitled
to receive reimbursement for all appropriate business expenses
incurred by him in connection with his duties under this Agreement
in accordance with the policies of the Company as in effect from
time to time.
4.6 Moving and
Relocation . Executive will be eligible to receive moving
and relocation benefits in accordance with the terms and conditions
of the NewPage Moving & Relocation Plan.
5. Termination of
Employment .
5.1
Definitions .
(a) “
Cause ” means (i) commission of a felony
by Executive, (ii) acts of dishonesty by Executive resulting
or intending to result in personal gain or enrichment at the
expense of the Company or its subsidiaries or affiliates,
(iii) Executive’s material breach of any provision of
any policy of the Company, Holding or Maple Timber Acquisition LLC
(Paper Series), (iv) Executive’s failure to follow the
lawful written directions of the Board of Directors of the Company,
the Holding Board or the Board of Directors of Maple Timber
Acquisition LLC (Paper Series), (v) conduct by Executive in
connection with his duties that is fraudulent, willful and
materially injurious to the Company or its subsidiaries or
affiliates, or (vi) conduct by Executive in connection with
his duties that is unlawful and materially injurious to the Company
or its subsidiaries or affiliates. If the Holding Board determines,
in its sole discretion, that the
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events or circumstances giving rise to
the Cause are curable, the Company will so notify Executive and
those events or circumstances will not be deemed to be Cause if
Executive effects a cure satisfactory to the Holding Board within
10 business days after the Company’s notice is
received.
(b) “
Disability ” means a determination by the
Company in accordance with applicable law based on information
provided by a physician selected by the Company or its insurers and
reasonably acceptable to Executive that, as a result of a physical
or mental injury or illness, Executive has been unable to perform
the essential functions of his job with or without reasonable
accommodation for a period of 90 consecutive days or for a period
of 180 days in any one-year period.
(c) “ Good
Reason ” means, without the consent of Executive,
(i) the assignment to Executive of any duties inconsistent in
any material adverse respect with Executive’s position
(including without limitation any reduction in offices, titles and
reporting requirements), authority, duties or responsibilities
immediately following the Effective Date, or any other action by
Holding or the Company which results in a material diminution in
his position, authority, duties or responsibilities, (ii) a
reduction by Holding or the Company in Executive’s Base
Salary or in the percentage of Base Salary on which
Executive’s bonus is based, (iii) Holding or the
Company’s requiring Executive to be based in any office or
location outside of 50 miles from Executive’s principal place
of employment, which will be Dayton and Miami Township, Ohio,
(iv) a material reduction in the aggregate benefits provided
to Executive, except for any across-the-board reductions affecting
all similarly situated employees on substantially the same
proportional basis, or (v) any failure by the Company to
obtain the express written assumption of the Company’s
obligations to Executive as described in this Agreement by any
successor or assign of the Company.
(d) “ Severance
Bonus Amount ” means, in the event of a termination
(i) prior to June 1st of any calendar year, the Annual
Bonus paid to Executive for the calendar year prior to the
termination or (ii) on or after June 1st of any calendar
year, the Annual Bonus that would have been payable to Executive
for the calendar year of the termination (determined as of the end
of that calendar year and payable when the Company pays annual
bonuses to similarly situated employees).
5.2 Termination
By the Company for Cause or By Executive Without Good Reason
. If during the Term the Company terminates Executive’s
employment for Cause, or if during the Term Executive terminates
his employment without Good Reason, Executive will be entitled to
receive the following:
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(1) |
any unpaid Base Salary and any accrued but unused vacation pay
through the date of termination; and |
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(2) |
accrued benefits pursuant to the Company’s benefit plans
and programs. |
Upon any such termination, as
applicable, the amount in (1) above will be paid in a lump sum
within 10 business days after termination (unless an earlier date
is required by law).
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5.3 Termination
By the Company Without Cause or By Executive for Good Reason
. Subject to Executive’s compliance with Section 7
and subject to the execution by Executive, without revocation, of a
general release in the form attached as Exhibit A (the “
Release ”), if during the Term
Executive’s employment terminates without Cause or Executive
terminates his employment for Good Reason, Executive will receive
the severance payments set forth in this Section 5.3 at such
times and subject to the provisions of paragraphs (I) and (II)
below (which shall be in lieu of any payments or benefits to which
Executive may be entitled under any Company severance plan (the
“ Severance Plan ”)):
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(1) |
any unpaid Base Salary and any accrued but unused vacation pay
through the date of termination; |
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(2) |
a pro rata bonus for the year of termination, calculated by
multiplying the Severance Bonus Amount by a fraction, the numerator
of which is the number of days in the current fiscal year through
the date of termination and the denominator of which is 365,
payable at the time that bonuses are paid to similarly situated
employees; |
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(3) |
an amount equal to two times Base Salary; |
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(4) |
continued receipt of medical, dental, vision, basic life, and
employee assistance coverage for 24 months after Executive’s
date of termination, subject to payment by Executive of the
employee cost of those benefits as paid by active employees, but if
Executive is employed by another employer who provides one or more
similar benefits, the benefits under the Company’s plan will
be secondary to those provided under the new plan; |
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(5) |
outplacement services substantially similar to those provided
pursuant to the terms of the Severance Plan; and |
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(6) |
accrued benefits pursuant to the Company’s benefit plans
and programs. |
The amount in (1) above will be
paid within 10 business days after the date of termination (unless
an earlier date is required by law). The amounts in (2) and
(3) above will be paid in a lump sum after the later of
(i) the expiration of the applicable revocation period
contained in the Release, and (ii) with respect to the bonus,
the annual bonus payment date for similarly situated employees. The
Company will have no obligation to provide any payments or benefits
in this Section 5.3 if Executive breaches the provisions of
Section 7.
5.4 Termination
Due to Death or Disability . If during the Term Executive
dies or the Company terminates Executive’s employment on
account of Executive’s Disability, Executive or
Executive’s legal representatives (as appropriate) will be
entitled to receive the following:
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(1) |
any unpaid Base Salary and any accrued but unused vacation pay
through the date of termination; |
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(2) |
a pro rata bonus for the year of termination, calculated by
multiplying the Severance Bonus Amount by a fraction, the numerator
of which is the number of days in the current fiscal year through
the date of termination and the denominator of which is 365,
payable at the time that bonuses are paid to similarly situated
employees; and |
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(3) |
accrued benefits pursuant to the Company’s benefit plans
and programs. |
The amounts in (1) above will be
paid in a lump sum within 10 business days after the date of
termination (unless an earlier date is required by law), and the
amount in (2) above will be paid when annual bonuses are paid
to similarly situated employees.
5.5 No
Mitigation . The obligations of the Company to Executive
that arise upon the termination of his employment pursuant to this
Section 5 shall not be subject to mitigation or
offset.
5.6 Removal from
any Boards and Positions . If Executive’s employment
terminates for any reason under this Agreement, he will be deemed
to resign as applicable (1) as a member of the board of
directors of the Company or any of its subsidiaries or affiliates
of the Company, (2) as a member of any other board to which he
has been appointed or nominated by or on behalf of the Company, and
(3) as an officer of and from any position with the Company or
any of its subsidiaries or affiliates.
6. Nondisparagement
. Except as required by law or order of a court or governmental
agency having jurisdiction or to report, in good faith, an
impropriety or financial wrongdoing affecting the business of the
Company, Executive will not at any time publish or communicate to
any person or entity any disparaging (as defined below) remarks,
comments or statements concerning the Company, Cerberus Capital
Management, L.P., their parents, subsidiaries and affiliates, and
their respective present and former members, partners, directors,
officers, shareholders, employees, agents, attorneys, successors
and assigns. “Disparaging” remarks, comments or
statements are those that impugn the character, honesty, integrity,
morality or business acumen or abilities in connection with any
aspect of the operation of the business of the individual or entity
being disparaged.
7. Restrictions and
Obligations of Executive .
7.1
Confidentiality .
(a) During the course of
Executive’s employment under this Agreement, Executive will
have access to, certain trade secrets and confidential information
relating to the Company and
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