Exhibit 10.1
TERMINATION PROTECTION
AGREEMENT
This Agreement (“this
Agreement”) is made as of the
day of
, 2006, between LONGVIEW FIBRE COMPANY, a Washington corporation,
with its principal offices at Longview, Washington (hereinafter
called the “Company”), and
(hereinafter called “Employee”).
It is made with reference to the
following facts:
A. The Board of Directors of the
Company (the “Board”) believes it imperative that the
Company and the Board be able to rely upon Employee to continue in
Employee’s position, and that they be able to receive and
rely upon Employee’s advice as to the best interests of the
Company and its shareholders, without concern that Employee might
be distracted or his or her advice affected by the circumstances
described in Section 1.2 below;
B. Employee is willing to enter into
this Agreement for the purposes and on the terms and conditions
described herein;
NOW, THEREFORE, the parties hereto
agree as follows:
1. Definitions .
1.1 “Approved Group”
shall mean any employee benefit plan of the Company or of any
subsidiary of the Company, or any person or entity organized,
appointed or established by the Company for or pursuant to the
terms of any such plan.
1.2 “Effective Date”
shall mean the day preceding the first to occur of the following
events (the “Change of Control Events”):
(a) Any Person (as defined in
Section 13(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), other than the Approved
Group or a broker, bank, or trust company holding common stock of
the Company for the account of customers who are not members of a
“group” (within the meaning of Section 13(d) of
the Exchange Act), becoming the record or beneficial owner of 30%
or more of any class of the Company’s voting equity
securities, as disclosed by the Company’s stock records or in
any other way, including, without limitation, any filing with the
Securities and Exchange Commission or otherwise; or
(b) Upon the purchase of 30% or more
of any class of the Company’s voting equity securities
pursuant to any tender offer or exchange offer for shares of the
Company’s stock, other than one made by the Company or the
Approved Group; or
(c) Upon approval by the
shareholders of the Company (or, if later, approval by the
shareholders of a third party) of any merger,
consolidation,
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reorganization or other transaction
providing for the conversion or exchange of more than fifty percent
(50%) of the outstanding shares of the Company’s stock
into securities of a third party, or cash, or property, or a
combination of any of the foregoing.
1.3 “Fiscal Year” shall
mean the 12-month period ending on December 31.
1.4 “Good Reason,” when
used with reference to a voluntary termination by Employee of his
or her employment with the Company, shall mean:
(a) a substantial reduction in
Employee’s level of duties or responsibilities;
provided , that (i) a change in title or (ii) a
change in title or status resulting from the Company, or any
affiliate of the Company by which Employee is then employed, being
a direct or indirect subsidiary of a parent company following a
Change of Control Event, with no corresponding substantial
reduction in Employee’s level of duties and responsibilities,
shall not, in and of itself, constitute Good Reason;
(b) a material reduction in
Employee’s Minimum Base Salary, benefits or total cash
compensation (consisting of base salary and target bonus), unless
such reduction is part of an overall reduction for all employees at
the same level as Employee;
(c) the Company’s mandatory
transfer of Employee to another geographic location that is more
than 50 miles from the location where Employee was employed at the
Effective Date, except for required travel on the Company’s
business to an extent substantially consistent with
Employee’s business travel obligations immediately prior to
the Effective Date hereof;
(d) the failure by the Company to
obtain an assumption of the obligations of the Company to perform
this Agreement by any successor to the Company, to the extent
legally required; or
(e) the repudiation or failure by
the Company or its successor to acknowledge (upon Employee’s
written request) or to comply with any of its obligations under
this Agreement.
1.5 “Contract Period”
shall mean the period commencing on the Effective Date and ending
on the
(__) anniversary of the Effective Date.
1.6 “Disability” shall
mean a physical or mental incapacity of Employee which entitles
Employee to commence the receipt of benefits under the long-term
disability plan maintained by the Company.
1.7 “Cause,” when used
in connection with the termination of Employee’s employment
by the Company, shall mean (a) the willful engaging by
Employee in misconduct
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which is significantly injurious to
the Company, monetarily or otherwise; (b) any act by the
Employee of fraud, dishonesty, embezzlement, misrepresentation or
theft of property of the Company; (c) Employee’s
conviction of or plea of no contest to a felony or any crime
involving moral turpitude; (d) Employee’s breach of this
Agreement or any other agreements with the Company;
(e) Employee’s unauthorized disclosure of the
Company’s proprietary or confidential information or breach
of any confidentiality/invention/proprietary information
agreement(s) with the Company; (f) Employee’s violation
of the Company’s Code of Ethics (if applicable), Code of
Business Conduct and Ethics or any other employment rule, code or
policy, as such policies currently exist or may be amended or
implemented during Employee’s employment with the Company;
(g) Employee’s failure or refusal to follow the lawful
instructions of the Company, if such failure or refusal continues
for a period of five (5) calendar days after the Company
delivers to Employee a written notice stating the instructions that
Employee has failed or refused to follow; (h) the entry by a
court of competent jurisdiction of an order, or the entering into
by Employee of a consent decree, barring Employee from serving as
an officer or director of a public company; or
(i) Employee’s failure to meet and sustain an acceptable
level of performance of Employee’s duties and obligations to
the Company (other than by reason of Disability), which failure
continues thirty (30) days after the Company has given written
notice thereof to Employee. For purposes of this definition, no
act, or failure to act, on Employee’s part shall be
considered “willful” unless done, or omitted to be
done, by Employee in bad faith and without reasonable belief that
the action or omission was in the best interests of the
Company.
1.8 “Without Cause,”
when used in connection with the termination of Employee’s
employment by the company, shall mean any termination of employment
of Employee by the Company which is not a termination of employment
for Cause or for Disability.
1.9 “Termination Date”
shall mean the effective date as provided in this Agreement for the
termination of Employee’s employment.
1.10 “Minimum Base
Salary” shall mean salary at an annual rate equal to
Employee’s annual rate of salary on the Termination
Date.
2. Scope of Agreement
.
2.1 General . This Agreement
shall apply with respect to any termination of employment of
Employee which occurs during the Contract Period. It shall not
apply to any termination of employment of Employee which occurs
other than during the Contract Period.
2.2 Termination . This
Agreement shall terminate on April 24, 2009 if Employee is
still in the employ of the Company and a Change of Control Event
has not occurred. Except as otherwise provided herein in respect of
payments to beneficiaries, this Agreement shall terminate
automatically upon the death of Employee.
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3. Termination of Employment of
Employee By the Company During the Contract Period .
3.1 General . During the
Contract Period, the Company shall have the right to terminate
Employee’s employment hereunder for Cause, for Disability or
Without Cause upon following the procedures hereinafter
specified.
3.2 For Disability .
Termination of Employee’s employment for Disability shall
become effective on the date that disability benefits, payable to
Employee in an amount equal to at least sixty-five
(65%) percent of Employee’s then Minimum Base Salary
commence under any long-term disability plan maintained by the
Company or on such later date as the Company may specify in a
written notice to the Employee.
3.3 For Cause . Termination
of Employee’s employment for Cause shall become effective
five (5) days after a written notice of intent to terminate
Employee’s employment, specifying the particulars of the
conduct of Employee forming the basis for such termination, is
given to Employee by the Board.
3.4 Without Cause . The
Company shall have the absolute right to terminate Employee’s
employment Without Cause at any time. Termination of
Employee’s employment Without Cause shall be effective five
(5) business days after the date of the giving to Employee by
the Board of a written notice of termination, specifying that such
termination is Without Cause.
3.5 Effect of Termination .
Upon a termination of Employee’s employment for Cause, or for
Disability as provided in Section 3.2 hereof, Employee shall
have no right to receive any compensation or benefits hereunder.
Upon a termination of Employee’s employment Without Cause,
Employee shall be entitled to receive the compensation and benefits
provided in Section 5 hereof.
4. Termination of Employment by
Employee During Contract Period . During the Contract Period,
the Employee shall be entitled to terminate his or her employment
with the Company. The Employee shall give the Company written
notice of voluntary termination of employment, which notice need
specify only Employee’s desire to terminate his or her
employment and, if such termination is for Good Reason, set forth
in reasonable detail the facts and circumstances claimed by
Employee to constitute Good Reason. Any notice by Employee pursuant
to this Section shall be effective thirty (30) days after
receipt by the Company of such notice; provided , that an
Employee may not terminate his or her employment for Good Reason,
if the Company has, within thirty (30) days of receipt of such
notice, corrected the circumstance that would otherwise result in
Good Reason for resignation. If such termination is for Good
Reason, Employee shall be entitled to receive the compensation and
benefits in Section 5 hereof. If such termination is for other
than Good Reason, Employee shall have no right to receive any
compensation and benefits hereunder other than Employee’s
Minimum Base Salary and accrued vacation through Employee’s
termination date.
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5. Benefits Upon Termination by
the Company Without Cause or by Employee for Good Reason . Upon
the termination of the employment of Employee by the Company
pursuant to Section 3.4 or by Employee for Good Reason
pursuant to Section 4 hereof, and if Employee executes and
does not revoke a general release of all claims in a form
acceptable to the Company and substantially similar to Exhibit
A attached hereto (the “General Release”), Employee
shall be entitled to receive the following compensation and
benefits:
5.1 The Company shall continue to
pay monthly to Employee for the remainder of the Contract Period an
amount equal to the Minimum Base Salary payable; provided ,
however , that the Company’s obligation hereunder
shall be reduced by the amount of (a) any benefits Employee
receives during the remainder of the Contract Period under any
tax-qualified defined benefit pension or retirement plan maintained
or contributed to by the Company and (b) any compensation
Employee receives from another source for services rendered during
the remainder of the Contract Period. Employee shall provide notice
of all compensation referred to in clause (b) of the preceding
sentence to the Company within seven (7) days of receipt of
such compensation.
5.2 The Company shall pay any
premiums necessary to continue Employee’s health insurance
coverage under the Company’s health insurance plan pursuant
to Section 4980B(f) of the Internal Revenue Code of 1986, as
amended (“COBRA”) (provided that Employee is eligible
for, and timely elects, COBRA continuation coverage under the
Company’s health insurance plan) until the earliest of
(a) eighteen (18) months after the Termination Date,
(b) the first date that Employee is covered under another
health insurance p
