EXHIBIT 10.49
EMPLOYMENT AGREEMENT
THIS AGREEMENT, is made as of this 16th day of January 2004, by and
between BOWATER INCORPORATED, a Delaware corporation having a mailing address of
00 Xxxx Xxxxxxxxxx Xxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 (the "Corporation"),
and Xxxxxx X. Xxxxxxx, 0000 Xxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000 (the
"Executive").
WHEREAS, the Corporation desires to employ the Executive as Vice
President, General Counsel and Secretary of the Corporation; and
WHEREAS, the Executive is desirous of serving the Corporation in such
capacity;
NOW, THEREFORE, the parties hereto agree as follows:
1. Employment. During the term of this Agreement, the Corporation
agrees to employ the Executive and the Executive agrees to be 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 as of the
retirement date.
3. Position and Duties. Throughout the term hereof, the Executive shall
be employed as Vice President, General Counsel and Secretary of the Corporation
(subject to election by the Board of Directors), with the duties and
responsibilities customarily attendant to that office, 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. The Executive
shall report directly to the Executive Vice President and Chief Financial
Officer of the Corporation.
4. Place of Employment. The Executive will be employed at the
Corporation's offices located in Greenville, SC, or at such other place as the
Corporation shall designate from time to time.
5. Compensation and Benefits.
(a) Base Salary. The Corporation shall pay to the
Executive a base salary of $285,000 (Salary Grade 32)
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) Incentive Plans.
(i) Annual Incentive Plan. In addition to his
base salary, the Executive shall be eligible
to receive an annual incentive award under
the Corporation's annual incentive plan in
effect from time to time determined in the
manner, at the time, and in the amounts set
forth under such plan.
(ii) MTIP. The Executive shall be eligible to
participate in the Bowater Incorporated
Mid-Term Incentive Plan. The Executive's
awards, if any, shall be prorated based on
his date of employment hereunder.
(iii) Stock-Based Incentive Compensation. Subject
to the approval of the Board of Directors,
the Executive shall be eligible for an
annual award under a Bowater stock-based
incentive program, as modified from time to
time, and for so long as such program
continues.
(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)
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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 or its delegate, 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 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 twelve (12) months of the Executive's base salary on the effective date
of the termination, plus 1/12 of the amount of the last bonus paid to the
Executive under the Corporation's annual incentive plan as 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. 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 stock-based 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
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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 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.
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. Xxxxxxxx /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
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