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Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT, is made as of this 24th day of July, 1998, by and
between BOWATER INCORPORATED, a Delaware corporation having a mailing address of
00 Xxxx Xxxxxxxxxx Xxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 (the "Corporation"),
and R. Xxxxxx Xxxxxx, 0000 Xxxx Xxxxxx, Xxx. 00X, Xxxxxxxx, Xxxxxx X0X 0X0 (the
"Executive").
WHEREAS, the Corporation desires to employ the Executive as Vice
President, Canadian Newsprint Operations of the Newsprint and Directory Division
from the date hereof and additionally, as Vice President of Bowater Incorporated
as of January 27, 1999; and
WHEREAS, the Executive is desirous of serving the Corporation in such
capacities;
NOW, THEREFORE, the parties hereto agree as follows:
1. Employment. During the term of this Agreement the Corporation agrees
to continue to employ the Executive, and the Executive agrees to continue in the
employ of the Corporation, in accordance with and subject to the provisions of
this Agreement.
2. Term.
(a) Subject to the provisions of subparagraphs (b) and
(c) of this Section 2, the term of this Agreement
shall begin on the Date hereof and shall continue
thereafter until terminated by either party by
written notice given to the other party at least
thirty (30) days prior to the effective date of any
such termination. The effective date of the
termination shall be the date stated in such notice,
provided that if the Corporation specifies an
effective date that is more than thirty (30) days
following the date of such notice, the Executive may,
upon thirty (30) days written notice to the
Corporation, accelerate the effective date of such
termination.
(b) Notwithstanding Section 2(a), upon the occurrence of
a Change in Control as defined in the Change in
Control Agreement between the Corporation and the
Executive (the "Change in Control Agreement"), the
term of this Agreement shall be deemed to continue
until terminated, but in any event, for a period of
not less than three (3) years following the date of
the Change in Control, unless such termination shall
be at the Executive's election for other than "Good
Reason" as that term is defined in the Change in
Control Agreement.
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(c) Notwithstanding Section 2(a), the term of this
Agreement shall end upon:
(i) the death of the Executive;
(ii) the inability of the Executive to perform
his duties properly, whether by reason of
ill-health, accident or other cause, for a
period of one hundred and eighty (180)
consecutive days or for periods totaling one
hundred and eighty (180) days occurring
within any twelve (12) consecutive calendar
months; or
(iii) the Executive's retirement on his early or
normal retirement date.
3. Position and Duties. Throughout the term hereof, the Executive shall
be employed as Vice President, Canadian Newsprint Operations, of the Newsprint
and Directory Division (Salary Grade 34) and shall serve additionally as Vice
President of Bowater Incorporated (Salary Grade 35) from and after January 27,
1999, with the duties and responsibilities customarily attendant to those
offices, provided that the Executive shall undertake such other and further
assignments and responsibilities of at least comparable status as the Board of
Directors may direct. The Executive shall diligently and faithfully devote his
full working time and best efforts to the performance of the services under this
Agreement and to the furtherance of the best interests of the Corporation.
4. Place of Employment. The Executive will be employed at the
Division's offices of Bowater Pulp and Paper Canada Inc. in the City of
Xxxxxxxx, Xxxxxx, Xxxxxx or at such other place as the Corporation shall
designate from time to time, provided, however, that if the Executive is
transferred to another place of employment, necessitating a change in his
residence, the Executive shall be entitled to financial assistance in accordance
with the terms of the Corporation's relocation policy then in effect.
5. Compensation and Benefits.
(a) Base Salary. The Corporation shall pay to the
Executive a base salary of $253,000 (US) from the
date hereof, and then $275,000 (US) from and after
January 1, 1999, payable in substantially equal
periodic installments on the Corporation's regular
payroll dates. The Executive's base salary shall be
reviewed at least annually and from time to time may
be increased (or reduced, if such reduction is
effected pursuant to across-the-board salary
reductions similarly affecting all management
personnel of the Corporation).
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(b) Bonus Plan. In addition to his base salary, the
Executive shall be entitled to receive an annual
bonus under the Corporation's bonus plan in effect
from time to time determined in the manner, at the
time, and in the amounts set forth under such plan.
(c) Benefit Plans. The Corporation shall make
contributions on the Executive's behalf to the
various benefit plans and programs of the Corporation
in which the Executive is eligible to participate in
accordance with the provisions thereof as in effect
from time to time.
(d) Vacations. The Executive shall be entitled to paid
vacation, in keeping with the Corporate policy as in
effect from time to time, to be taken at such time or
times as may be approved by the Corporation.
(e) Expenses. The Corporation shall reimburse the
Executive for all reasonable expenses properly
incurred, and appropriately documented, by the
Executive in connection with the business of the
Corporation.
(f) Perquisites. The Corporation shall make available to
the Executive all perquisites to which he is entitled
by virtue of his position.
6. Nondisclosure. During and after the term of this Agreement, the
Executive shall not, without the written consent of the Board of Directors of
the Corporation, disclose or use directly or indirectly, (except in the course
of employment hereunder and in furtherance of the business of the Corporation or
any of its subsidiaries and affiliates) any of the trade secrets or other
confidential information or proprietary data of the Corporation or its
subsidiaries or affiliates; provided, however, that confidential information
shall not include any information known generally to the public (other than as a
result of unauthorized disclosure by the Executive) or any information of a type
not otherwise considered confidential by persons engaged in the same or similar
businesses.
7. Noncompetition. During the term of this Agreement, and for a period
of one (1) year after the date the Executive's employment terminates, the
Executive shall not, without the prior approval of the Board of Directors of the
Corporation in the same or a similar capacity engage in or invest in, or aid or
assist anyone else in the conduct of any business (other than the businesses of
the Corporation and its subsidiaries and affiliates) which directly competes
with the business of the Corporation and its subsidiaries and affiliates as
conducted during the term hereof. If any court of competent jurisdiction shall
determine that any of the provisions of this Section 7 shall not be enforceable
because of the duration or scope thereof, the parties hereto agree that said
court shall have the power to reduce the duration and scope of such provision to
the extent necessary to make it enforceable and this Agreement in its reduced
form shall be valid and enforceable to the extent permitted by law. The
Executive acknowledges that the Corporation's remedy at law for a breach by the
Executive of the provisions of this Section 7 will
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be inadequate. Accordingly, in the event of the breach or threatened breach by
the Executive of this Section 7, the Corporation shall be entitled to injunctive
relief in addition to any other remedy it may have.
8. Severance Pay. If the Executive's employment hereunder is
involuntarily terminated for any reason other than those set forth in Section
2(c) hereof, then unless the Corporation shall have terminated the Executive for
"Cause", the Corporation shall pay the Executive severance pay in an amount
equal to twenty-four (24) months of the Executive's base salary on the effective
date of the termination, plus 1/12 of the amount of the last annual bonus paid
to the Executive under the Corporation's bonus plan applicable to the Executive
for each month in the period beginning on January 1 of the year in which the
date of the termination occurs and ending on the date of the termination and for
each months' base salary to which the Executive is entitled under this Section
8, provided, however, that any amount paid to the Executive by the Corporation
for services rendered subsequent to the thirtieth (30th) day following the
communication to the Executive of notice of termination shall be deducted from
the severance pay otherwise due hereunder. Such payment shall be made in a lump
sum within ten (10) business days following the effective date of the
termination. The severance pay shall be in lieu of all other compensation or
payments of any kind relating to the termination of the Executive's employment
hereunder; provided that the Executive's entitlement to compensation or payments
under the Corporation's retirement plans, stock option or incentive plans,
savings plans or bonus plans attributable to service rendered prior to the
effective date of the termination shall not be affected by this clause and shall
continue to be governed by the applicable provisions of such plans; and further
provided that in lieu hereof, at his election, the Executive shall be entitled
to the benefits of the Change in Control Agreement between the Corporation and
the Executive, if termination occurs in a manner and at a time when such Change
in Control Agreement is applicable. For purposes of this Agreement, the term for
"Cause" shall mean because of gross negligence or willful misconduct by the
Executive either in the course of his employment hereunder or which has a
material adverse effect on the Corporation or the Executive's ability to perform
adequately and effectively his duties hereunder.
9. Notices. Any notices required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given when
delivered or mailed, by registered or certified mail, return receipt requested
to the respective addresses of the parties set forth above, or to such other
address as any party hereto shall designate to the other party in writing
pursuant to the terms of this Section 9.
10. Severability. The provisions of this Agreement are severable, and
the invalidity or unenforceability of any provision shall not affect the
validity or enforceability of any other provision.
11. Governing Law. This Agreement shall be governed by and interpreted
in
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accordance with the substantive laws of the State of Delaware.
12. Supersedure. This Agreement shall cancel and supersede all prior
agreements relating to employment between the Executive and the Corporation,
except the Change in Control Agreement.
13. Waiver of Breach. The waiver by a party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
prior or subsequent breach by any of the parties hereto.
14. Binding Effect. The terms of this Agreement shall be binding upon
and inure to the benefit of the successors and assigns of the Corporation and
the heirs, executors, administrators and successors of the Executive, but this
Agreement may not be assigned by the Executive.
IN WITNESS WHEREOF, the Corporation and the Executive have executed
this Agreement as of the day and year first above written.
BOWATER INCORPORATED
By /s/ Xxxxx X. Xxxxxx /s/ R. Xxxxxx Xxxxxx
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Xxxxx X. Xxxxxx R. Xxxxxx Xxxxxx
Vice President - Human Resources
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