EXHIBIT 10.3
A MENDMENT N O .
3
TO
E MPLOYMENT L ETTER A GREEMENT
This Amendment No. 3 is made
effective as of January 1, 2009, and modifies and amends the
Employment Letter Agreement dated October 6, 2005, and previously
amended Amendment No. 1 dated as of January 28, 2007 and by
Amendment dated as of December 21, 2007 (collectively, the “
Agreement ”), between NewPage Corporation
(“ Company ”) and Douglas K. Cooper
(“ 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 10 of
the Agreement is amended in its entirety to read as
follows:
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1.
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Termination: The Company may terminate Executive’s
employment hereunder for any reason and at any time without prior
notice. Upon a termination of the Executive’s employment
without Cause (as defined below) or by Executive with Good Reason
(as defined below), and subject to the Executive’s compliance
with Sections 6, 7 and 8 of this Agreement and subject to the
execution by the Executive, without revocation, of a valid
employment release substantially in the form attached hereto as
Exhibit A or in other form acceptable to the Company (the
“Release”), the Executive shall receive from the
Company (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”)):
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I.
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any unpaid Base
Salary through the date of termination;
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II.
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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 executives;
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III.
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any accrued but
unused vacation pay;
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IV.
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an amount equal to two (2) times
Base Salary minus an amount equal to the original purchase price
paid for the Paper Class A Common Percentage Interests pursuant to
the terms of the Executive Purchase Agreement between the Executive
and Maple Timber Acquisition LLC (“MTA”), dated as of
November 1, 2005 (the “EPA”); provided that if such
termination without Cause or with Good Reason is within 12 months
following the acquisition by NewPage Holding Corporation or its
subsidiaries of the stock or assets of a business enterprise of at
least substantially the same revenues and total assets as NewPage
Holding Corporation and its subsidiaries on a consolidated basis
(for the avoidance of doubt, such a business enterprise shall
include one of
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the four (4) leading coated paper
companies other than the Company), the amount shall be equal to
three (3) times Base Salary minus an amount equal to the
original purchase price paid for the Paper Class A Common
Percentage Interests pursuant to the terms of the EPA; provided,
further that, if at the time of a termination of employment without
Cause or with Good Reason, the aggregate “fair market
value” of the shares of common stock, par value $.01 per
share, of NewPage Group Inc. (the “Exchange Shares”)
issued as a distribution in respect of the Executive’s Paper
Class A Common Percentage Interests in MTA being repurchased
from the Executive is less than the aggregate original purchase
price paid by the Executive for such Paper Class A Common
Percentage Interests, the Executive shall receive an additional
cash payment equal to the difference between (i) the aggregate
original purchase price paid for such Paper Class A Common
Percentage Interests by the Executive and (ii) the aggregate
“fair market value” of such Exchange Shares at the time
of the termination without Cause or with Good Reason;
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V.
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continued
receipt of welfare benefits for twenty-four (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
Section 10(V) shall be secondary to those provided under such
other plan;
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VI.
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outplacement
services substantially similar to those provided pursuant to the
terms of the Severance Plan; and
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VII.
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accrued
benefits pursuant to the terms and conditions of the
Company’s benefit plans and programs.
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Upon a termination without Cause or
with Good Reason, the payment in I above shall be made within 10
business days after the date of termination (unless an earlier date
is prescribed by law).
Upon a termination without Cause or
with Good Reason, the payments in items II-IV above 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 items III and IV above 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
“Code”),
the Company may, in its sole
discretion, make such payments on any date that is no more than
thirty (30) days prior to such date), and the Company shall
make the payment set forth in II above at the time that bonuses are
paid to similarly si
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