EXHIBIT 10.7
A MENDMENT N O .
2
TO
E MPLOYMENT A GREEMENT
This Amendment No. 2 is made
effective as of January 1, 2009, and modifies and amends the
Employment Agreement dated April 17, 2006, as amended by
Amendment dated December 21, 2007 (the “
Agreement ”), between NewPage Corporation
(“ Company ”) and Mark A. Suwyn (“
Executive ”). Terms defined in the Agreement
have the same meaning when used in this Amendment unless otherwise
indicated. For good and valuable consideration, the receipt and
sufficiency of which is acknowledged, Company and Executive agree
as follows:
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1.
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Section 5.2 of the Agreement is amended in
its entirety to read as follows:
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5.2 By the Company Without Cause
or By the Executive for Good Reason . Subject to the
Executive’s compliance with Section 7 hereof and subject
to the execution by the Executive, without revocation, of a general
release in the form attached hereto as Exhibit A or in other form
satisfactory to the Company (the “Release”), if during
the Employment Term, without the Consulting Term having commenced,
the Executive’s employment terminates without Cause or
Executive terminates his employment for Good Reason, the Executive
shall receive the severance payments set forth in this
Section 5.2 at such times and subject to the provisions of
paragraphs (I) and (II) below (which shall be in lieu of any
payments or benefits to which the Executive may be entitled under
any Company severance plan (the “Severance
Plan”)):
(a) any unpaid Base Salary through
the date of termination;
(b) a pro rata bonus for the year of
termination, calculated as the product of (x) “Severance
Bonus Amount” (as defined below) and (y) a fraction, the
numerator of which is the number of days in the current fiscal year
through the date of termination and the denominator of which is
365, payable at the time that bonuses are paid after the
Executive’s termination date to similarly situated
employees;
(c) any accrued but unused vacation
pay;
(d) an amount equal to one
(1) times Base Salary;
(e) continued receipt of welfare
benefits for 24 months after the Executive’s date of
termination; provided, however, if the Executive becomes reemployed
with another employer and is eligible to receive welfare benefits
under another employer-provided plan, the welfare benefits
described in this clause 5.2(e) shall be secondary to those
provided under such other plan; and
(f) accrued benefits pursuant to the
terms and conditions of the Company’s benefit plans and
programs.
(I) Upon a termination without Cause
or for Good Reason, the payment set forth in Section 5.2(a)
shall be paid within 10 business days after the date of termination
(unless an earlier date is prescribed by law).
(II) Upon a termination without
Cause or for Good Reason, the payments set forth in Sections
5.2(b)-(d) shall be made in a lump sum only after the
Executive has executed and delivered to the Company the Release
within the period stated below and after any applicable revocation
period in the Release has expired. Within forty-five (45) days
after the date of termination (the “Delivery
Deadline”), the Executive shall deliver to the Company either
an executed Release or a notice stating that the Executive has a
good faith, bona fide dispute regarding his employment or the
termination of his employment with the Company (“Dispute
Notice”). If the Executive delivers an executed Release by
the Delivery Deadline, the Company shall make the payments set
forth in Sections 5.2(c)-(d) on the first business day that is
sixty (60) days after the date of termination (provided that,
as permitted by Section 409A of the Internal Revenue Code of
1986, as amended (the
