Exhibit 10.16


 


EXECUTIVE EMPLOYMENT AGREEMENT


 


THIS EXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”) is effective as of March 1,
2009 by and between Orchids Paper Products Company (“Company”) and Keith R.
Schroeder (“Executive”).


 


WHEREAS, Executive serves as the Company’s Chief Financial Officer
pursuant to an employment agreement, dated as of March 1, 2004 (the “2004
Employment Agreement”);


 


WHEREAS, the 2004 Employment Agreement expires on March 1, 2009;
and


 


WHEREAS, Executive desires to continue to serve as the Chief Financial
Officer of the Company and in exchange for the protection and other
consideration set forth in this Agreement, is willing to give the Company,
under certain circumstances, his covenant not to compete, and the Company
desires to so employ Executive.


 


NOW, THEREFORE, in consideration of the promises and the mutual
agreements contained herein, the Company and Executive hereby agree as follows:


 


ARTICLE I


Definitions


 


1.1                               Definitions.  As used herein, the following terms shall
have the following meanings.


 


(a)                                “Board”
means the board of directors of the Company.


 


(b)                               “Cause”
means (i) engaging by Executive in willful misconduct which is materially
injurious to Company; (ii) conviction of Executive by a court of competent
jurisdiction of, or entry of a plea of nolo  contendere with
respect to a felony; (iii) engaging by Executive in fraud or dishonesty in
connection with the business of Company; (iv) Executive’s abuse of or
dependency on alcohol or drugs (illicit or otherwise); (v) Executive’s
material breach of this Agreement; or (vi) failure to perform the lawful
directives of the Chief Executive Officer or the Board, including, without
limitation, any failure to regularly report to the office.


 


(c)                                “Change
of Control” means (i) a change in the ownership of the Company, which
occurs on the date that any one person or more than one person acting as a
group, acquires ownership of stock of the Company that, together with stock
held by such person or group constitutes more than 50% of the total fair market
value or total voting power of the stock of the Company; or (ii) a change
in the ownership of all or substantially all of the Company’s assets, which
occurs on the date that any one person, or more than one person acting as a
group, acquires (or has acquired during the 12-month period ending on the date
of the most recent acquisition by such person or persons) assets from the
Company that have a total gross fair market value equal to or more than 80% of
the total gross fair market value of all of the assets of the Company
immediately prior to such acquisition or acquisitions.  For this purpose, gross fair market value
means the value of the assets of the Company or the value of the assets being
disposed of determined without regard to any liabilities associated with such
assets.


 

















 


(d)                               “Code”
means the Internal Revenue Code of 1986, as amended.


 


(e)                                “Confidential
Information” shall mean all technical and business information of the Company,
or which is learned or acquired by the Company from others with whom the
Company has a business relationship in which, and as a result of which, similar
information is revealed to the Company, whether patentable or not, which is of
a confidential, trade secret and/or proprietary character and which is either
developed by Executive (alone or with others) or to which Executive shall have
had access during his employment. 
Confidential Information shall include (among other things) all
confidential data, designs, plans, notes, memoranda, work sheets, formulas,
processes, and customer and supplier lists.


 


(f)                                  “Good
Reason” means (i) a requirement that the Executive permanently relocate to
a place of business more than 50 miles from the location at which he
principally performs services for the Company; (ii) a material diminution
in the Executive’s duties; (iii) a requirement that Executive regularly
report directly to a person other than the Board; or (iv) a material
breach of this Agreement by the Company.


 


ARTICLE II


Employment


 


2.1                               Employment.  Company agrees to employ Executive and
Executive hereby accepts such employment with the Company, upon the terms and
conditions set forth in this Agreement, for the period beginning on March 1,
2009  (“Start Date”) and ending as provided
in Section 2.4 of this Agreement (“Employment Period”).


 


2.2                               Position
and Duties.


 


(a)                                Commencing
on the Start Date and continuing during the Employment Period, Executive shall
serve as Chief Financial Officer of the Company.  As Chief Financial Officer, Executive,
subject to the control of the Board, shall perform such duties as are customary
for such position and such duties as may be assigned to him by Chief Executive
Officer.


 


(b)                               Executive
shall devote his best efforts and his full business time and attention to the
business and affairs of the Company.  The
Executive shall perform his duties and responsibilities to the best of his
abilities in a diligent, trustworthy, businesslike and efficient manner.  In the performance of his duties hereunder,
Executive shall at all times report and be subject to the lawful direction of
the Chief Executive Officer and perform his duties hereunder subject to and in
accordance with the resolutions or any other determinations of the Board and
the by-laws of the Company and applicable law. 
During the Employment Period, Executive shall not become an employee of
any person or entity other than the Company.


 


2.3                               Base
Salary, Bonus and Benefits.


 


(a)                                Subject
to the terms of this Agreement, in consideration of Executive’s agreements
contained herein, for the period beginning on the Start Date, Executive’s base
salary shall be $190,025 per annum (“Base Salary”), which shall be payable in
equal 


 


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installments during the year in accordance
with the Company’s normal payroll schedule and shall be subject to deductions
for customary withholdings, including, without limitation, federal and state
withholding taxes and social security taxes. 
The Board shall evaluate the Base Salary annually and make such changes
to the Base Salary as it deems are appropriate, but in no event shall the Base
Salary be less than $190,025.


 


(b)                               Executive
shall be eligible for the opportunity to earn annual performance bonuses in an
amount up to 100% of Base Salary (with a target bonus equal to 60% of Base
Salary), based on the achievement of such targets as shall be established, in
accordance with the Company’s annual bonus program.  Executive must remain employed by the Company
on the payment date of any such bonus in order to receive any such bonus.  Subject to the terms of the actual bonus
plan, any bonus thereunder is payable in cash on or after January 1 and no
later than April 15 of the calendar year following the applicable fiscal
year with respect to such bonus.  In
addition, during the Employment Period, Executive shall be entitled to
participate in all retirement, disability, pension, savings, life, health,
medical, dental, insurance and other fringe benefits or plans of the Company
generally available to executive employees of the Company.


 


(c)                                During
the Employment Period, the Company upon the submission of proper substantiation
by the Executive, shall reimburse the Executive for all reasonable business
expenses actually and necessarily paid or incurred by him in the course of and
pursuant to the business of the Company, in accordance with Company policies
relating to the reimbursement of business expenses.


 


(d)                               Executive
shall be entitled to four weeks of vacation during the first year of employment
and five weeks of vacation during each year of employment thereafter,
consistent with Company policy and to be taken at times which do not
unreasonably interfere with the performance of Executive’s duties
hereunder.  Unused vacation time shall be
treated in accordance with the Company’s policies in effect from time to time.


 


2.4                               Term.


 


(a)                                General
Term.  This Agreement shall commence
on the Start Date and terminate on December 31, 2011 (“Initial Term”)
unless extended or sooner terminated as provided herein.  The Initial Term shall automatically be
extended for successive additional one-year periods (each, a “Renewal Period”),
unless either party to this Agreement provides the other party with notice of
termination of this Agreement at least 60 days prior to the expiration of the
Initial Term or any Renewal Period thereafter (“Notice Period”).


 


(b)                               Termination
for Cause or Voluntary Termination. 
If the Executive is terminated by the Company for Cause or if the
Executive terminates his employment for any reason other than as provided in Section 2.4(d),
the Executive shall be entitled only to his Base Salary through the date of
termination, but shall not be entitled to any further Base Salary or any
applicable bonus, benefits or other compensation for that 


 


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year or any future year, except as may be provided in an applicable
benefit plan or program, or to any severance compensation of any kind, nature
or amount.


 


(c)                                  Termination
Without Cause.


 


(i)                                   Before
or More Than Twelve Months Following Change of Control.  If the Executive is terminated by the Company
without Cause before a Change in Control or more than twelve months following a
Change of Control (including any termination which is a direct result of the
Company’s election to terminate the Executive’s employment without Cause at the
end of the Initial Term or any Renewal Period), the Executive shall be entitled
to all previously earned and accrued but unpaid Base Salary up to the date of
such termination and severance pay in an amount equal to one year of Base
Salary.  Such severance payments will be
made in equal installments over a one-year period, payable on the dates on
which the Executive’s Base Salary would have otherwise been paid if Executive’s
employment had continued.  All payments
shall be subject to deductions for customary withholdings, including, without
limitation, federal and state withholding taxes and social security taxes.


 


(ii)                                Within
Twelve Months After Change of Control. 
Notwithstanding the foregoing, if the Executive is terminated by the
Company without Cause within twelve months after a Change of Control
(including, without limitation, any termination which is a direct result of the
Company’s election to terminate the Executive’s employment without Cause at the
end of the Initial Term or any Renewal Period), the Executive shall be entitled
to all previously earned and accrued but unpaid Base Salary up to the date of
such termination and severance pay in an amount equal to two (2) years of
Base Salary.  Such severance payment will
be made in a lump sum on the date that is 90 days after the date of termination
of employment.  All payments shall be
subject to deductions for customary withholdings, including, without
limitation, federal and state withholding taxes and social security taxes.


 


(d)                                 Termination by
Executive.


 


(i)                                   Good
Reason Within Twelve Months After Change of Control.  If Executive terminates his employment for
Good Reason within twelve (12) months after a Change of Control,  Executive shall notify Company in writing if he believes
the termination is for Good Reason. 
Executive shall set forth in reasonable detail why Executive believes
Good Reason exists.  If such termination
is for Good Reason, Executive shall be entitled to all previously earned and
accrued but unpaid Base Salary up to the date of such termination and severance
pay in an amount equal to two (2) years of Base Salary.  Such severance payment will be made in a lump
sum on the date that is 90 days after the date of termination of
employment.  All payments shall be
subject to deductions for customary withholdings, including, without
limitation, federal and state withholding taxes and social security taxes.


 


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(ii)                                Good
Reason Before or More Than Twelve Months After Change of Control.  In the event that Executive terminates his
employment for Good Reason at any time before a Change of Control or more than
twelve months following a Change of Control, Executive shall be entitled to all
previously earned and accrued but unpaid Base Salary up to the date of such
termination and severance pay in an amount equal to one year of Base
Salary.  Such severance payments will be
made in equal installments over a one-year period, payable on the dates on
which the Executive’s Base Salary would have otherwise been paid if Executive’s
employment had continued.  All payments
shall be subject to deductions for customary withholdings, including, without
limitation, federal and state withholding taxes and social security taxes.


 


(iii)                             Other.  In the event that Executive terminates his
employment for any reason at any time other than described in subsections (d)(i) and
(ii) above, Executive shall not be entitled to severance pay and shall be
entitled only to those amounts provided in Section 2.4(b) on a
voluntary termination of employment by Executive.


 


(e)                                Limitation
on Certain Additional Payments. 
Anything in this Agreement to the contrary notwithstanding, in the event
it is determined that any payment or distribution by the Company to or for the
benefit of the Executive (“Payments”) would be subject to the excise tax
imposed by Section 4999 of the Code, then the Payments under this
Agreement shall be decreased to the greatest amount that could be paid to the
Executive such that receipt of Payments will not give rise to any such excise
tax.  In the event it is determined that
Payments would be subject to the excise tax imposed under Section 4999 of
the Code, such Payments shall be first reduced by those Payments under this
Agreement that are not subject to Section 409A of the Code, and, if
necessary, then out of the Payments that are subject to Section 409A of
the Code, starting with the Payments that are to be paid on the latest future
date, so that there will be no Payments subject to the excise tax imposed by Section 4999
of the Code.


 


(f)                                  Severance
Forfeiture.  Executive agrees that
the Executive shall be entitled to the severance pay as set forth in this Section 2.4
only if the Executive executes a release of all claims against the Company in
such form as the Company may require and the Executive has not materially
breached as of the date of termination any provisions of this Agreement and
does not materially breach such provisions at any time during the period for
which such payments are to be made.  The
Company’s obligation to make such payments will terminate upon the occurrence
of any such material breach during the severance period.


 


(g)                               No
Additional Severance.  Executive
hereby agrees that no severance compensation of any kind, nature or amount
shall be payable to Executive, except as expressly set forth in this Section 2.4,
and Executive hereby irrevocably waives any claim for any other severance
compensation.


 


(h)                               Death
or Disability.  The Company’s
obligation under this Agreement terminates on the last day of the month in
which the Executive’s death occurs or on the date as of 


 


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which Executive first becomes entitled to receive and actually receives
disability benefits under the Company’s long-term disability plan.  The Company shall pay to Executive or the
Executive’s estate all previously earned and accrued but unpaid Base Salary up
to such date.  Thereafter, the Executive
or his estate shall not be entitled to any further Base Salary, bonus, benefits
or other compensation for that year or any subsequent year, except as may be
provided in an applicable benefit plan or program.


 


2.5                               Confidential
Information.


 


(a)                                Executive
shall use his best efforts and diligence both during and after his employment
with the Company, regardless of how, when or why Executive’s employment ends,
to protect the confidential, trade secret and/or proprietary character of all
Confidential Information.  Executive
shall not, directly or indirectly, use (for himself or another) or disclose any
Confidential Information, for so long as it shall remain proprietary or
protectible as confidential or trade secret information, except as may be
necessary for the performance of Executive’s duties for the Company.


 


(b)                               Executive
shall promptly deliver to the Company, at the termination of the Employment
Period or at any other time at the Company’s request, without retaining any
copies, all documents, information and other material in Executive’s possession
or control containing, reflecting and/or relating, directly or indirectly, to
any Confidential Information.


 


(c)                                Executive’s
obligations under this Section 2.5 shall also extend to the confidential,
trade secret and proprietary information learned or acquired by Executive
during his employment from others with whom the Company has a business
relationship.


 


(d)                               Executive’s
breach of Section 2.5 of this Agreement shall relieve Company of its
obligations (if any) to pay any further severance benefits under this Agreement.


 


2.6                               Competitive
Activity.


 


(a)                                Executive
covenants and agrees that during the period of his employment hereunder and for
a period ending on the earlier of (i) the second (2nd) anniversary of the
date of termination of his employment with the Company, including without
limitation termination by the Company for Cause or without Cause, and (ii) to
the extent severance payments become payable hereunder and are made in
installments, the last day on which Executive is entitled to receive severance
payments hereunder, Executive shall not, in the United States of America, or in
any other country of the world in which the Company or any of its subsidiaries
has done business at any time during the last two (2) years prior to
termination of Executive’s employment with the Company, engage, directly or
indirectly, whether as principal or as agent, officer, director, employee,
consultant, shareholder, or otherwise, alone or in association with any other
person, corporation or other entity, in any Competing Business.  For purposes of this Agreement, the term “Competing
Business” shall mean any person, corporation or other entity which sells or
attempts to sell any tissue products or 


 


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services or any other products or services which are the same as or
substantially similar to (as commonly understood in the relevant industry) the
products and services (a) sold by the Company or any of its subsidiaries
at any time and from time to time during the last two (2) years prior to
the termination of Executive’s employment hereunder or (b) being developed
by the Company or any of its subsidiaries during the period of Executive’s
employment with the Company.


 


(b)                               Executive
shall continue to be obligated under Section 2.5 of this Agreement not to
use or to disclose Confidential Information so long as it shall remain
proprietary or protectible as confidential or trade secret information.


 


(c)                                During
the applicable non-compete period, following termination of Executive’s
employment with the Company for any reason, Executive agrees to advise the
Company of his new employer, work location and job responsibilities within ten (10) days
after accepting new employment.


 


(d)                               Executive
understands that the intention of Sections 2.5 and 2.6 of this Agreement is not
to prevent the Executive from earning a livelihood and Executive agrees nothing
in this Agreement would prevent Executive from earning a livelihood utilizing
his general skills in any of the companies which are not directly or indirectly
in competition with the Company.


 


(e)                                Executive
agrees that during his employment with the Company, he shall not, directly or
indirectly, solicit the trade of, or trade with, any customer, prospective
customer or supplier of the Company or any of its subsidiaries for any business
propose other than for the benefit of the Company or such subsidiaries.  Executive further agrees that for two (2) years
following termination of his employment with the Company, including without
limitation termination by the Company for Cause or without Cause, Executive
shall not, directly or indirectly, solicit for any Competing Business the trade
of, or trade with, any customers or suppliers, or prospective customers or
suppliers, of the Company or any of its subsidiaries.


 


(f)                                  Executive
agrees that, during his employment with the Company and for two (2) years
following termination of his employment with the Company, including without
limitation termination by the Company for Cause or without Cause, Executive
shall not, directly or indirectly, solicit, hire or induce, or attempt to
solicit, hire or induce, any employee of the Company or any of its subsidiaries
to leave the Company or any of its subsidiaries for any reason whatsoever or
hire any employee of the Company or any of its subsidiaries.


 


(g)                               Executive’s
breach of Section 2.6 of this Agreement shall relieve Company of its
obligations (if any) to pay any further severance benefits under this
Agreement.


 


ARTICLE
III


Miscellaneous


 


3.1                               Executive’s
Representations.  Executive
hereby represents and warrants to the Company that (i) Executive’s
execution, delivery and performance of this Agreement do not and shall not 


 


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conflict with, breach, violate or cause a default under any contract,
agreement, instrument, order, judgment or decree to which Executive is a party
or by which he is bound, and (ii) upon the execution and delivery of this
Agreement by the Company, this Agreement shall be the valid and binding
obligation of Executive, enforceable in accordance with its terms.  Executive hereby acknowledges and represents
that he fully understands the terms and conditions contained herein.


 


3.2                               Survival.  Sections 2.5 and 2.6 and Sections 3.2 through
3.15 shall survive and continue in full force in accordance with their terms
notwithstanding any termination of the Employment Period.


 


3.3                               Notices.  All notices, demands or other communications
to be given or delivered under or by reason of the provisions of this Agreement
will be in writing and will be deemed to have been given when delivered
personally, mailed by certified or registered mail, return receipt requested
and postage prepaid, or sent via a nationally recognized overnight courier, or
sent via facsimile to the recipient.  Such
notices, demands and other communications will be sent to the address indicated
below:


 


To the
Company:


 


Orchids Paper
Products Company

4826 Hunt Street

Pryor, Oklahoma 74361

Attn: Chief Executive Officer


 


with a copy
to:


 


Bryan Cave LLP

161 North Clark Street, Suite 4300

Chicago, Illinois 60601

Attn:  Don Figliulo


 


To Executive:


 


Keith R. Schroeder

8656 East 104th Street

Tulsa, Oklahoma 74133


 


or such other address or to the attention of
such other person as the recipient party shall have specified by prior written
notice to the sending party.


 


3.4                               Severability.  Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law.  If any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, (a) the parties agree
that such provision(s) will be enforced to the maximum extent permissible
under the applicable law, and (b) any invalidity, illegality or unenforceability
of a particular provision will not affect any other provision of this
Agreement.


 


3.5                               Successors
and Assigns.  Except as otherwise
provided herein, all covenants and agreements contained in this Agreement shall
bind and inure to the benefit of and be enforceable by 


 


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the Company, and their respective successors and assigns.  This Agreement is personal to Executive and
except as otherwise specifically provided herein, this Agreement, including the
obligations and benefits hereunder, may not be assigned to any party by
Executive.


 


3.6                               Descriptive
Headings.  The descriptive
headings of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.


 


3.7                               Counterparts.  This Agreement may be executed in one or more
identical counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.


 


3.8                               Waiver.  Neither any course of dealing nor any failure
or neglect of either party hereto in any instance to exercise any right, power
or privilege hereunder or under law shall constitute a waiver of such right,
power or privilege or of any other right, power or privilege or of the same
right, power or privilege in any other instance.  All waivers by either party hereto must be
contained in a written instrument signed by the party to be charged therewith,
and, in the case of Company, by its duly authorized officer.


 


3.9                               Entire
Agreement.  This instrument
constitutes the entire agreement of the parties in this matter and shall
supersede any other agreement between the parties, oral or written, concerning
the same subject matter including, but not limited to, any prior employment and
severance agreements.  Without limiting
the foregoing, the 2004 Employment Agreement is specifically superseded hereby
and of no force or effect.


 


3.10                        Amendment.  This Agreement may be amended only by a
writing which makes express reference to this Agreement as the subject of such
amendment and which is signed by Executive and by a duly authorized officer of
the Company.


 


3.11                        Governing
Law.  This Agreement shall be
signed by the parties in Tulsa, Oklahoma. 
All questions concerning the construction, validity and interpretation
of this Agreement will be governed by and construed in accordance with the
domestic law of the State of Oklahoma, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of Oklahoma
or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Oklahoma. 
Any litigation relating to or arising out of this Agreement shall be
filed and litigated exclusively in the state or federal courts of Oklahoma.


 


3.12                        Remedies.  Each of the parties to this Agreement will be
entitled to enforce its rights under this Agreement specifically, to recover
damages and costs (including reasonable attorneys’ fees) caused by any breach
of any provision of this Agreement and to exercise all other rights existing in
its favor.  The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement, including, without limitation, Sections 2.5 and
2.6 hereof, and that any party may in its sole discretion apply to any court of
law or equity of competent jurisdiction (without posting any bond or deposit)
for specific performance and/or other injunctive relief in order to enforce or
prevent any violations of the provisions of this Agreement.


 


3.13                        Future
Employment.  Executive shall
disclose the existence of this Agreement to any new employer or potential new
employer which offers products or services that compete with the Company’s
business.  Executive consents to the
Company informing any subsequent employer of 


 


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Executive, or any entity which the Company in good faith believes is,
or is likely to be, considering employing Executive, of the existence and terms
of this Agreement.


 


3.14                        Specified
Employee Determination. 
Notwithstanding anything herein to the contrary, in the event that the
Executive is determined to be a specified employee in accordance with Section 409A
of the Code and the regulations and other guidance issued thereunder for
purposes of any payment on termination of employment hereunder, payment(s) shall
be made or begin, as applicable on the first payroll date which is more than
six months following the date of separation from service, to the extent
required to avoid the adverse tax consequences under Section 409A of the
Code.


 


3.15                        Arbitration.  The parties agree
that all disputes arising under or in connection with this Agreement, and any
and all claims by the Executive relating to his employment with the Company,
including any claims of discrimination arising under Title VII of the Civil
Rights Act of 1964, as amended, the Age Discrimination in Employment Act, the
Americans with Disabilities Act or any similar federal, state or local law will
be submitted to arbitration in Tulsa, Oklahoma to the American Arbitration
Association (“AAA”) under its rules then prevailing for the type of claim
in issue.  The parties each hereby
specifically submit to the personal jurisdiction of any federal or state court
located in the State of Oklahoma for any such action and further agree that
service of process may be made within or without the State of Oklahoma by
giving notice in the manner provided herein.


 


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IN WITNESS
WHEREOF, the parties hereto have executed this Employment Agreement this 27 day
of February, 2009 and effective as of the date first written above.


 


THIS
AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED
BY COMPANY.


 


	
   

  	
  COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Robert A. Snyder

  
	
   

  	
  Name:  Robert Snyder

  
	
   

  	
  Title:  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
    /s/ Keith R. Schroeder

  
	
   

  	
  Name:  Keith R. Schroeder

  



 


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