Exhibit 10.16


 


 


CONSULTING AGREEMENT


 


This Consulting Agreement (the “Agreement”),
dated this 2nd day of May, 2005 is by and between NewPage Corporation (the “Company”)
and Mark Suwyn (the “Consultant”).


 


WHEREAS, an Equity and Purchase Agreement was entered
into by and between Escanaba Timber LLC (f/k/a Maple Acquisition LLC) and
MeadWestvaco Corporation, dated as of January 14, 2005, as amended (the “Purchase
Agreement”);


 


WHEREAS, the Company desires to retain the
Consultant to provide services for the Company upon the terms and conditions
contained herein; and


 


WHEREAS, the Consultant desires to be retained by
the Company upon the terms and conditions contained herein.


 


NOW, THEREFORE, in consideration of the promises in this
Agreement, the mutuality and sufficiency of which are hereby acknowledged, the
parties agree as follows:


 


1)                                      Term. The term of the Agreement shall commence on the “Closing Date” (as
defined under the Purchase Agreement) (the “Effective Date”) and shall continue
thereafter until earlier terminated in accordance with the terms of Section 10
of this Agreement (the “Consulting Term”).


 


2)                                      Duties. The Consultant shall serve as the Chairman of the Board of Directors of
the Company, and NewPage Holding Corporation and such other affiliates of Maple
Timber Acquisition LLC (the “Parent”) as the Board of Directors of the Parent
may request.


 


3)                                      Payments.


 


a)                                      Consulting Fees. During the Consulting Term, in lieu of any
other fees as a director, the Consultant shall receive an annual fee of $500,000
(payable in monthly installments of $41,666.66) (the “Consulting Fees”).


 


b)                                     Signing Bonus. The Consultant shall be entitled to an
up-front payment in the amount
of $697,500. Such amount shall be paid to the Consultant on the Effective Date,
$547,506.75 of which the Consultant hereby instructs the Company to pay to the
Parent to purchase the interests in the Paper Series of the Parent on the
Effective Date pursuant to the Executive Purchase Agreement, dated as the
Effective Date, between the Parent and the Consultant (the “Executive Purchase
Agreement”).


 


c)                                      Expenses. During the Consulting Term, the Company will pay, or reimburse the
Consultant for, reasonable expenses incurred by the Consultant at the request
of, or on behalf of, the Company in the performance of the Consultant’s duties
pursuant to this Agreement, and in accordance with the Company’s policies.


 


4)                                      Independent
Contractor. During the Consulting Term, the Consultant is, and shall be deemed for
all purposes to be, an independent contractor of the Company. The Consultant
acknowledges that this Agreement is not an employment contract. Consequently,
the


 





















 


Consulting
Fees set forth in Section 3(a) of this Agreement shall not be deemed to be
wages, and therefore shall not be subject to any withholdings or deductions.
The Consultant shall not be entitled to any employee benefits of the Company or
any of its affiliates or subsidiaries.


 


5)                                      Confidentiality.


 


(a)                                  The Consultant has
had access to, and during the course of the Consultant’s retention under this
Agreement, the Consultant will have access to, certain trade secrets and
confidential information relating to the Company and its affiliates and
subsidiaries (the “Protected Parties”) which is not readily available from
sources outside the Company. The confidential and proprietary information and,
in any material respect, trade secrets of the Protected Parties are among their
most valuable assets, including but not limited to, their customer, supplier
and vendor lists, contract terms, databases, competitive strategies, computer
programs, frameworks, or models, their marketing programs, their sales,
financial, marketing, training and technical information, their product
development (and proprietary product data), business plans and strategies
(including, but not limited to, acquisition and divestiture plans),
environmental matters and other regulatory matters and any other information,
whether communicated orally, electronically, in writing or in other tangible
forms concerning how the Protected Parties create, develop, acquire or maintain
their products and marketing plans, target their potential customers and
operate their businesses. The Protected Parties invested, and continue to
invest, considerable amounts of time and money in their process, technology,
know-how, obtaining and developing the goodwill of their customers, their other
external relationships, their data systems and data bases, and all the
information described above (hereinafter collectively referred to as “Confidential
Information”), and any misappropriation or unauthorized disclosure of
Confidential Information in any form would irreparably harm the Protected
Parties. The Consultant acknowledges that such Confidential Information
constitutes valuable, highly confidential, special and unique property of the
Protected Parties. The Consultant shall hold in a fiduciary capacity for the
benefit of the Protected Parties all Confidential Information relating to the
Protected Parties and their businesses, which shall have been obtained by the Consultant
during the Consultant’s retention by the Company or its subsidiaries and
affiliates and which shall not be or become public knowledge (other than by
acts by the Consultant or representatives of the Consultant in violation of
this Agreement). Except as required by law or an order of a court or
governmental agency with jurisdiction, the Consultant shall not, during the
period the Consultant is retained by the Company or its subsidiaries and
affiliates or at any time thereafter, disclose any Confidential Information,
directly or indirectly, to any person or entity for any reason or purpose
whatsoever, nor shall the Consultant use it in any way, except in the course of
the Consultant’s retention with, and for the benefit of, the Protected Parties
or to enforce any rights or defend any claims hereunder or under any other
agreement to which the Consultant is a party, provided that such disclosure is
relevant to the enforcement of such rights or defense of such claims and is
only disclosed in the formal proceedings related thereto. The Consultant shall
take all reasonable steps to safeguard the Confidential Information and to
protect it against disclosure, misuse, espionage, loss and theft. The
Consultant understands and agrees that the Consultant shall acquire no rights
to any such Confidential Information.


 


(b)                                 All files, records,
documents, drawings, specifications, data, computer programs, evaluation
mechanisms and analytics and similar items relating thereto or to the coated
paper and/or carbonless paper business (the “Business”), as well as all
customer lists,


 


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specific customer information, compilations of product research and
marketing techniques of the Company and its subsidiaries and affiliates, whether
prepared by the Consultant or otherwise coming into the Consultant’s
possession, shall remain the exclusive property of the Company and its
subsidiaries and affiliates, and the Consultant shall not remove any such items
from the premises of the Company and its subsidiaries and affiliates, except in
furtherance of the Consultant’s duties under this Agreement.


 


(c)                                  It is understood that while retained by the
Company, the Consultant will promptly disclose to it, and assign to it the
Consultant’s interest in any invention, improvement or discovery made or
conceived by the Consultant, either alone or jointly with others, which arises
out of the Consultant’s retention. At the Company’s request and expense, the Consultant
will assist the Company and its subsidiaries and affiliates during the period
of the Consultant’s retention under this Agreement and thereafter in connection
with any controversy or legal proceeding relating to such invention,
improvement or discovery and in obtaining domestic and foreign patent or other
protection covering the same.


 


(d)                                 As requested by the Company and at the
Company’s expense, from time to
time and upon the termination of the Consultant’s retention for any reason, the
Consultant will promptly deliver to the Company and its subsidiaries and
affiliates, as applicable, all copies and embodiments, in whatever form, of all
Confidential Information in the Consultant’s possession or within his control
(including, but not limited to, memoranda, records, notes, plans, photographs,
manuals, notebooks, documentation, program listings, flow charts, magnetic
media, disks, diskettes, tapes and all other materials containing any
Confidential Information) irrespective of the location or form of such
material. If requested by the Company, the Consultant will provide the Company
with written confirmation that all such materials have been delivered to the
Company as provided herein.


 


6)                                      Non-Solicitation or Hire. During the Consulting Term and for a period
of 1 year following the termination of the Consultant’s retention for any
reason, the Consultant shall not directly or indirectly solicit or attempt to
solicit or induce, directly or indirectly, (a) any party who is a customer of
the Company or its subsidiaries or affiliates, or who was a customer of the Company
or its subsidiaries or affiliates at any time during the relevant period
immediately prior to the relevant date, for the purpose of marketing, selling
or providing to any such party any services or products offered by or available
from the Company or its subsidiaries or affiliates and relating to the Business
or (b) any employee of the Company or any of its subsidiaries or affiliates or
any person who was an employee of the Company or any of its subsidiaries or affiliates
during the twelve (12) month period immediately prior to the date of the
Consultant’s termination of retention to terminate such employee’s employment
relationship with the Protected Parties in order, in either case, to enter into
a similar relationship with the Consultant, or any other person or any entity
in competition with the Business of the Company or any of its subsidiaries or
affiliates.


 


7)                                      Property. The Consultant acknowledges that all originals and copies of materials,
records and documents generated by him or coming into his possession during his
retention by the Company or its subsidiaries and affiliates are the sole
property of the Company and its subsidiaries and affiliates (“Company Property”).
During the Consulting Term, and at all times thereafter, the Consultant shall
not remove, or cause to be removed, from the premises of


 


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the Company or its subsidiaries or affiliates, copies of any record,
file, memorandum, document, computer related information or equipment, or any
other item relating to the business of the Company or its subsidiaries or
affiliates, except in furtherance of his duties under the Agreement. When the
Consultant’s retention terminates, or upon request of the Company at any time,
the Consultant shall promptly deliver to the Company all copies of Company
Property in his possession or control.


 


8)                                      Remedies; Specific Performance. The Parties acknowledge and agree that the
Consultant’s breach or threatened breach of any of the restrictions set forth
in Sections 5, 6, or 7 will result in irreparable and continuing damage to the
Protected Parties for which there may be no adequate remedy at law and that the
Protected Parties shall be entitled to equitable relief, including specific
performance and injunctive relief as remedies for any such breach or threatened
or attempted breach. The Consultant hereby consents to the grant of an
injunction (temporary or otherwise) against the Consultant or the entry of any
other court order against the Consultant prohibiting and enjoining him from
violating, or directing him to comply with any provision of Sections 5, 6, or
7. The Consultant also agrees that such remedies shall be in addition to any
and all remedies, including damages, available to the Protected Parties against
him for such breaches or threatened or attempted breaches.


 


9)                                      Devotion.


 


a)                                      The Consultant will devote such of his
business time, attention, skill
and energy as are necessary to perform his duties hereunder, use his best
efforts to promote the success of the Company in accordance with all applicable
laws, and cooperate fully with the Company in the advancement of the best
lawful interests of the Company.


 


b)                                     Nothing in this Section 9 shall prevent the
Consultant from engaging in additional activities that do not violate the
provisions of Sections 5, 6, or 7 and 9(a) herein, or otherwise interfere in
the performance of Consultant’s duties under this Agreement.


 


10)                                Termination of the Consulting Agreement and
the Company’s Relationship with the Consultant.


 


a)                                      The Consulting Term may be terminated by the
Company or the Consultant upon 30 days prior written notice to the other party
or immediately upon the Consultant’s death or “Disability” (as defined below)
or by the Company for “Cause” (as defined below), subject to the cure period
contained in such definition. If the Consulting Term is terminated pursuant to
this Section 10(a), the Consulting Term shall terminate immediately, and the
Consultant, or his legal representative, shall be entitled to only such
Consulting Fees as shall have accrued as of the date of such termination.


 


b)                                     For the purposes of this Agreement, “Cause”
means (i) commission of a felony by the Consultant, (ii) acts of dishonesty by
the Consultant resulting or intending to result in personal gain or enrichment
at the expense of the Company or its subsidiaries or affiliates, (iii) the
Consultant’s material breach of any provision of any policy of the Company or
its subsidiaries or affiliates, (iv) conduct by the Consultant in connection
with his duties that is fraudulent, willful and materially injurious to the
Company or its subsidiaries or affiliates or (v)


 


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conduct
by the Consultant in connection with his duties that is unlawful and materially
injurious to the Company or its subsidiaries or affiliates; provided, that, the
Consultant shall have ten (10) business days following the Company’s written
notice of its intention to terminate the Consultant to cure such Cause, if
curable, as determined by the Board of Directors of NewPage Holding
Corporation, in its sole discretion.


 


c)                                      For the purposes of
this Agreement, “Disability” means a physical or mental injury or illness which
prevents the Consultant from fulfilling his duties as Chairman with or without
reasonable accommodation for a period of (i) 90 consecutive days or (ii) 180
days in any one year period.


 


11)                                Disclosure. The Consultant
shall disclose immediately to the Company the existence of any relationship
between the Consultant and any other entity that creates or may create a
conflict of interest that may affect the independent professional judgment of
the Consultant in carrying out his duties under this Agreement.


 


12)                                Representations. The Consultant
expressly represents and warrants to the Company that as of the date of his
signing this Agreement that he is not a party to any contract or agreement
which will or may restrict in any way his ability to perform his duties and responsibilities
under this Agreement and that the performance of his duties for the Company will
not breach any agreements with former employers.


 


13)                                Governing Law. This Agreement
will be governed by and construed in accordance with the laws of the State of New
York, without giving effect to the principles of conflicts of laws.


 


14)                                Jurisdiction. The parties agree
irrevocably to submit to the exclusive jurisdiction of the federal courts or,
if no federal jurisdiction exists, the state courts, located in the City of New
York, Borough of Manhattan, for the purposes of any suit, action or other proceeding
brought by any party arising out of any breach of any of the provisions of this
Agreement and hereby waive, and agree not to assert by way of motion, as a
defense or otherwise, in any such suit, action, or proceeding, any claim that
he or it is not personally subject to the jurisdiction of the above-named
courts, that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper, or that
the provisions of this Agreement may not be enforced in or by such courts. In
addition, the parties agree to the waiver of a jury trial.


 


15)                                Notices. Any notice or
other communication required or which may be given hereunder shall be in
writing and shall be delivered personally, telegraphed, telexed, sent by
facsimile transmission or sent by certified, registered or express mail,
postage prepaid, and shall be deemed given when so delivered personally,
telegraphed, telexed, or sent by facsimile transmission or, if mailed, four (4)
days after the date of mailing, as follows:


 


	
  If
  to the Company:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  If the Company, to:

  	
   

  	
   

  



 


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  NewPage Corporation

  	
   

  	
   

  
	
  Courthouse Plaza N.E.

  	
   

  	
   

  
	
  Dayton, Ohio 45463

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention: Board of Directors

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  With copies to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Cerberus Capital Management, L.P.

  	
   

  	
   

  
	
  299 Park Avenue

  	
   

  	
   

  
	
  New York, New York 10171

  	
   

  	
   

  
	
   

  
	
  Attention:

  	
   

  	
  Lenard Tessler

  
	
  Telephone:

  	
   

  	
  212-891-2100

  
	
  Fax:

  	
   

  	
  (212) 755-3009

  
	
   

  
	
  And

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schulte Roth & Zabel LLP

  	
   

  	
   

  
	
  919 Third Avenue

  	
   

  	
   

  
	
  New York, NY 10022

  	
   

  	
   

  
	
   

  
	
  Attention:

  	
   

  	
  Stuart D. Freedman, Esq.

  
	
  Telephone:

  	
   

  	
  212-756-2000

  
	
  Fax:

  	
   

  	
  (212) 593-5955

  
	
   

  
	
  If to the Consultant:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Mark Suwyn

  	
   

  	
   

  
	
  6413 Arden Ct.

  	
   

  	
   

  
	
  Brentwood, TN 37027

  	
   

  	
   

  
	
   

  
	
  Telephone:

  	
   

  	
  (239) 498-0613

  
	
  Fax:

  	
   

  	
  (239) 498-2972

  
									



 


Either party may change the address provided above
by delivering written notice of such change of address to the other party.


 


16)                                Assignability;
Successors. This Agreement shall inure to the benefit of and be binding upon the
successors of the Company. Neither the Consultant nor the Company may assign
this Agreement without the express written consent of the other party; provided,
however, that the Company’s obligations under this Agreement shall be
the binding legal obligations of any successor of the Company, and provided
further that the Consultant hereby agrees that the Company may assign this
Agreement to any of its affiliates or subsidiaries at any time without the
consent of the Consultant.


 


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17)                                Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.


 


18)                                Entire Agreement and Amendment. This Agreement may be amended only by an
agreement in writing signed by the parties. This Agreement contains the entire agreement
between the parties with respect to the subject matter of this Agreement and supersedes
all prior agreements and understandings, oral or written, between the parties
with respect to the subject matter of this Agreement. This Agreement and all
compensation derived therefrom are intended not to constitute compensation
deferred under a nonqualified deferred compensation plan as contemplated in
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”).
Accordingly, notwithstanding any other provision of this Agreement, the provisions
of this Agreement will be interpreted consistent with the preceding sentence,
and the Agreement may be modified to the minimum extent necessary, as agreed
upon by the Company and the Consultant to comply with the requirements of
Section 409A of the Code and the regulations promulgated thereunder.


 


19)                                Severability. In the event that any one or more of the
terms, conditions or provisions of this Agreement is held invalid, illegal or
unenforceable, that term, condition or provision shall be severed and the
remaining terms, conditions and provisions shall remain binding and effective.


 


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IN WITNESS WHEREOF, the parties have executed
the Agreement as of the date and year first above written.


 


	
   

  	
  NEWPAGE CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Linda
  Sheffield

  	
   

  
	
   

  	
  Name: 

  	
  Linda Sheffield

  
	
   

  	
  Title:

  	
  Treasurer

  



 





















 


	
   

  	
  /s/
  Mark Suwyn

  	
   

  
	
   

  	
  Mark
  Suwyn