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Exhibit
10.27
E MPLOYMENT
A GREEMENT
T HIS E
MPLOYMENT A GREEMENT (“
Agreement ”) is made as of November 1,
2007 between NewPage Corporation (“ Company
”) and Michael T. Edicola (“ Executive
”). The Company and Executive agree as follows:
1. Employment
and Acceptance . The Company will employ Executive, and
Executive accepts employment with the Company, subject to the terms
of this Agreement, effective as of November 1, 2007 (the
“ Effective Date ”).
2. Term
. This Agreement and the employment relationship established by
this Agreement will continue from the Effective Date until
terminated by either party in accordance with Section 5 (the
“ Term ”).
3. Duties and Title
.
3.1 Title
. The Company will employ Executive to render exclusive and
full-time services to the Company and certain of its subsidiaries
and affiliates. Executive will serve in the capacity of Vice
President, Human Resources of the Company and of NewPage Holding
Corporation (“ Holding ”). Executive may
also serve during the Term in executive positions for one or more
of the Company’s subsidiaries and affiliates for no
additional consideration.
3.2 Duties
. Executive will have the authority and responsibilities and
will perform those executive duties that are customarily performed
by the chief human resources executive of businesses similar to
those of the Company or assigned to Executive by the Chief
Executive Officer of the Company (the “ CEO
”) or the board of directors of the Company or of Holding
(“ Board ”). Executive will report to the
CEO. Executive will devote all his full working-time and attention
to the performance of those duties and to the promotion of the
business and interests of the Company and its subsidiaries and
affiliates. This provision will not prevent Executive from acting
as an advisor to or a member of the board of directors of any civic
or charitable organization, so long as those actions do not violate
Section 7 or interfere with Executive’s performance of
his duties under this Agreement.
3.3 Location
. The principal place of Executive’s employment will be
at the Company’s headquarters in the Miamisburg, Ohio
area.
4. Compensation by the
Company .
4.1 Base
Salary . As compensation for all services rendered pursuant
to this Agreement, the Company will pay to Executive, an annual
base salary of two hundred eighty-five thousand dollars ($285,000),
payable in accordance with the payroll practices of the Company
(“ Base Salary ”). Each year during the
Term, the Board will conduct a review of Executive’s Base
Salary and, in its sole discretion, may increase Executive’s
Base Salary. Once increased, Base Salary may not be decreased. For
the purposes of this Agreement, Base Salary means Executive’s
base salary as increased pursuant to this
Section 4.1.
4.2 Annual
Bonus . For performance periods during the Term, Executive
will be entitled to participate in the NewPage Corporation Annual
Performance Excellence Plan approved annually by the Board (the
“ Annual Incentive Plan ”).
Executive’s target bonus will be 45% of Base Salary for
achieving targets set annually by the Board in the Annual Incentive
Plan. Each annual bonus (“ Annual Bonus
”) will be paid on or before March 15th of the year
following the tax year in which the relevant services required for
payment have been performed. There will be no cap on the amount of
any Annual Bonus. Executive will be eligible to receive a prorated
bonus for 2007.
4.3
Participation in Employee Benefit Plans . Executive
will be entitled during the Term to participate in the benefit
plans of the Company that may be available to other senior
executives of the Company, on the same terms as those other
executives. The Company may at any time amend, modify, suspend or
terminate any employee benefit plan, program or arrangement for any
reason in its sole discretion.
4.4 Vacation
. Executive will be entitled to four weeks of paid vacation
during each calendar year during the Term. Vacation days will be
prorated for any partial year based on the number of days elapsed
in that year. Executive is not entitled to payment for unused
vacation days upon the termination of his employment except as set
forth in Section 5. The accrual and carry-over of vacation
days will be in accordance with Company policy from time to time in
effect.
4.5 Expense
Reimbursement . During the Term, Executive will be entitled
to receive reimbursement for all appropriate business expenses
incurred by him in connection with his duties under this Agreement
in accordance with the policies of the Company as in effect from
time to time.
4.6 Moving and
Relocation . Executive will be eligible to receive moving
and relocation benefits in accordance with the terms and conditions
of the NewPage Moving & Relocation Plan.
5. Termination of
Employment .
5.1
Definitions .
(a) “
Cause ” means (i) commission of a felony
by Executive, (ii) acts of dishonesty by Executive resulting
or intending to result in personal gain or enrichment at the
expense of the Company or its subsidiaries or affiliates,
(iii) Executive’s material breach of any provision of
any policy of the Company, Holding or the parent of Holding (Paper
Series), (iv) Executive’s failure to follow the lawful
written directions of the Board or the board of directors of the
parent of Holding, (v) conduct by Executive in connection with
his duties that is fraudulent, willful and materially injurious to
the Company or its subsidiaries or affiliates, or (vi) conduct
by Executive in connection with his duties that is unlawful and
materially injurious to the Company or its subsidiaries or
affiliates. If the Board determines, in its sole discretion, that
the events or circumstances giving rise to the Cause are curable,
the Company will so notify Executive and those events or
circumstances will not be deemed to be Cause if Executive effects a
cure satisfactory to the Board within 10 business days after the
Company’s notice is received.
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(b) “
Disability ” means a determination by the
Company in accordance with applicable law based on information
provided by a physician selected by the Company or its insurers and
reasonably acceptable to Executive that, as a result of a physical
or mental injury or illness, Executive has been unable to perform
the essential functions of his job with or without reasonable
accommodation for a period of 90 consecutive days or for a period
of 180 days in any one-year period.
(c) “ Good
Reason ” means, without the consent of Executive,
(i) the assignment to Executive of any duties inconsistent in
any material adverse respect with Executive’s position
(including without limitation any reduction in offices, titles and
reporting requirements), authority, duties or responsibilities
immediately following the Effective Date, or any other action by
Holding or the Company which results in a material diminution in
his position, authority, duties or responsibilities, (ii) a
reduction by Holding or the Company in Executive’s Base
Salary or in the percentage of Base Salary on which
Executive’s bonus is based, (iii) Holding or the
Company’s requiring Executive to be based in any office or
location outside of 50 miles from Executive’s principal place
of employment, which will be Dayton and Miami Township, Ohio,
(iv) a material reduction in the aggregate benefits provided
to Executive, except for any across-the-board reductions affecting
all similarly situated employees on substantially the same
proportional basis, or (v) any failure by the Company to
obtain the express written assumption of the Company’s
obligations to Executive as described in this Agreement by any
successor or assign of the Company.
(d) “ Severance
Bonus Amount ” means, in the event of a termination
(i) prior to June 1st of any calendar year, the Annual
Bonus paid to Executive for the calendar year prior to the
termination or (ii) on or after June 1st of any calendar
year, the Annual Bonus that would have been payable to Executive
for the calendar year of the termination (determined as of the end
of that calendar year and payable when the Company pays annual
bonuses to similarly situated employees).
5.2 Termination
By the Company for Cause or By Executive Without Good Reason
. If during the Term the Company terminates Executive’s
employment for Cause, or if during the Term Executive terminates
his employment without Good Reason, Executive will be entitled to
receive the following and will not be eligible to receive any
payments or benefits under any Company severance plan:
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(1) |
any unpaid Base Salary and any accrued but unused vacation pay
through the date of termination; and |
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(2) |
accrued benefits pursuant to the Company’s benefit plans
and programs. |
The amount in (1) above will be
paid in a lump sum within 10 business days after termination
(unless an earlier date is required by law).
5.3 Termination
By the Company Without Cause or By Executive for Good Reason
. Subject to Executive’s compliance with Section 7
and subject to the execution by Executive, without revocation, of a
general release in the form attached as Exhibit A (the “
Release ”), if during the Term
Executive’s employment terminates without Cause or Executive
terminates his employment for Good Reason, Executive will receive
the following in lieu of any payments or benefits to which
Executive would otherwise be entitled under any Company severance
plan:
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(1) |
any unpaid Base Salary and any accrued but unused vacation pay
through the date of termination; |
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(2) |
a pro rata bonus for the year of termination, calculated by
multiplying the Severance Bonus Amount by 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 to similarly situated
employees; |
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(3) |
an amount equal to two times Base Salary; |
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(4) |
continued receipt of medical, dental, vision, basic life, and
employee assistance coverage for 24 months after Executive’s
date of termination, subject to payment by Executive of the
employee cost of those benefits as paid by active employees, but if
Executive is employed by another employer who provides one or more
similar benefits, the benefits under the Company’s plan will
be secondary to those provided under the new plan; |
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(5) |
outplacement services substantially similar to those provided
pursuant to the terms of the Company’s severance plan;
and |
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(6) |
accrued benefits pursuant to the Company’s benefit plans
and programs. |
The amount in (1) above will be
paid within 10 business days after the date of termination (unless
an earlier date is required by law). The amounts in (2) and
(3) above will be paid in a lump sum after the later of
(i) the expiration of the applicable revocation period
contained in the Release, and (ii) with respect to the bonus,
the annual bonus payment date for similarly situated employees. The
Company will have no obligation to provide any payments or benefits
in this Section 5.3 if Executive breaches the provisions of
Section 7.
5.4 Termination
Due to Death or Disability . If during the Term Executive
dies or the Company terminates Executive’s employment on
account of Executive’s Disability, Executive or
Executive’s legal representatives (as appropriate) will be
entitled to receive the following in lieu of any payments or
benefits to which Executive would otherwise be entitled under any
Company severance plan:
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(1) |
any unpaid Base Salary and any accrued but unused vacation pay
through the date of termination; |
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(2) |
a pro rata bonus for the year of termination, calculated by
multiplying the Severance Bonus Amount by 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 to similarly situated
employees; and |
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(3) |
accrued benefits pursuant to the Company’s benefit plans
and programs. |
The amounts in (1) above will be
paid in a lump sum within 10 business days after the date of
termination (unless an earlier date is required by law), and the
amount in (2) above will be paid when annual bonuses are paid
to similarly situated employees.
5.5 No
Mitigation . The obligations of the Company to Executive
that arise upon the termination of his employment pursuant to this
Section 5 will not be subject to mitigation or
offset.
5.6 Removal from
any Boards and Positions . If Executive’s employment
terminates for any reason under this Agreement, he will be deemed
to resign as applicable (1) as a member of the board of
directors of the Company or any of its subsidiaries or affiliates
of the Company, (2) as a member of any other board to which he
has been appointed or nominated by or on behalf of the Company, and
(3) as an officer of and from any position with the Company or
any of its subsidiaries or affiliates.
6.
Nondisparagement . Except as required by law or order
of a court or governmental agency having jurisdiction or to report,
in good faith, an impropriety or financial wrongdoing affecting the
business of the Company, Executive will not at any time publish or
communicate to any person or entity any disparaging (as defined
below) remarks, comments or statements concerning the Company,
Cerberus Capital Management, L.P., their parents, subsidiaries and
affiliates, and their respective present and former members,
partners, directors, officers, shareholders, employees, agents,
attorneys, successors and assigns. “Disparaging”
remarks, comments or statements are those that impugn the
character, honesty, integrity, morality or business acumen or
abilities in connection with any aspect of the operation of the
business of the individual or entity being disparaged.
7. Restrictions and
Obligations of Executive .
7.1
Confidentiality .
(a) During the course of
Executive’s employment under this Agreement, Executive will
have access to, certain trade secrets and confidential information
relating to the Company and its affiliates and subsidiaries
(“ Protected Parties ”) that is not
readily av
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