text
stringlengths 100
16.2k
|
|---|
(b)Obligations. The Executive agrees to devote the Executive's full business time and attention to the business and affairs of the Company. The foregoing, however, shall not preclude the Executive from serving on corporate, civic, or charitable boards or committees or managing personal investments, so long as such activities do not interfere with the performance of the Executive's responsibilities hereunder. |
3.Base Salary. The Company agrees to pay the Executive an annual base salary at the rate of [__________ ($_______)], less applicable withholding (the Base Salary). The Base Salary will be subject to annual review and may be increased from time to time in the discretion of the Company, based on factors such as the Executive's responsibilities, compensation of similar executives within the Company and in other companies, the Executive's performance, and other pertinent factors. Such Base Salary shall be payable in accordance with the Company's customary practices applicable to its executives. |
5.Employee Benefits. The Executive shall be entitled to participate in all employee benefit plans, practices, and programs maintained by the Company and made available to senior executives generally and as may be in effect from time to time. The Executive's participation in such plans, practices and programs shall be on the same basis and terms as are applicable to senior executives of the Company generally. |
6.Bonus. The Executive shall be entitled to participate in the Company's applicable incentive compensation plan at a target level of [__________ (__%)] of the Executive's Base Salary on such terms and conditions as determined from time to time by the Board. The target level may be increased from time to time in the discretion of the Company, based on factors such as the Executive's responsibilities, compensation of similar executives within the Company and in other companies, the Executive's performance, and other pertinent factors. |
(a)Expenses. Subject to applicable Company policies, the Executive shall be entitled to receive prompt reimbursement of all expenses reasonably incurred in connection with the performance of the Executive's duties hereunder or for promoting, pursuing, or otherwise furthering the business or interests of the Company. For purposes of compliance with Section 409A of the Internal Revenue Code of 1986, as amended (the Code), (i) all expenses or other reimbursements hereunder shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (ii) any right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. |
(a)Disability. The Company shall be entitled to terminate the Executive's employment after having established the Executive's Disability. For purposes of this Agreement, Disability means a physical or mental infirmity which impairs the Executive's ability to substantially perform the Executive's duties under this Agreement for a period of at least six (6) months in any twelve (12)-month calendar period as determined in accordance with the Company's Long-Term Disability Plan or, in the absence of such plan, as determined by the Board. |
(b)Cause. The Company shall be entitled to terminate the Executive's employment for Cause without prior written notice. For purposes of this Agreement, Cause shall mean that the Executive (1) failed to perform the Executive's material duties with the Company (other than a failure resulting from the Executive's incapacity due to physical or mental illness); or (2) has pleaded guilty or no contest to or has been convicted of an act which is defined as a felony under federal or state law; or (3) engaged in misconduct in bad faith which could reasonably be expected to materially harm the Company's business or its reputation. The Executive shall be given written notice by the Company of a termination for Cause, which shall state in detail the particular act or acts or failures to act that constitute the grounds on which the termination for Cause is based. |
(c)Termination by the Executive. The Executive may terminate employment hereunder without Good Reason by delivering to the Company, not less than thirty (30) days prior to the Termination Date, a written notice of termination. The Executive may terminate employment hereunder for "Good Reason" by delivering to the Company not less than thirty (30) days prior to the Termination Date, a written notice of termination setting forth in reasonable detail the facts and circumstances which constitute Good Reason. For purposes of this Agreement, Good Reason shall mean the occurrence of any of the following events, without the express written consent of the Executive, unless such events are fully corrected in all material respects by the Company within thirty (30) days following written notification by the Executive to the Company of the occurrence of one of the following reasons: (i) the failure to continue the Executive in a capacity contemplated by Section 2(a) above; (ii) the assignment to the Executive of any duties materially inconsistent with the Executive's positions, material duties, authority, responsibilities or reporting requirements as set forth in Section 2(a) hereof; (iii) a reduction in or a material delay in payment of the Executive's total cash compensation and benefits from those required to be provided in accordance with the provisions of this Agreement; (iv) the Company, the Board or any person controlling the Company requires the Executive to be based at a location more than sixty (60) miles from the Executives principal residence as of the Commencement Date, other than on travel reasonably required to carry out the Executive's obligations under the Agreement; or (v) the failure of the Company to obtain the assumption in writing of its obligation to perform this Agreement by any successor to all or substantially all of the assets of the Company within fifteen (15) days after a Change in Control (defined below). The Executive shall provide the Company with a written notice detailing the specific circumstances alleged to constitute Good Reason within thirty (30) days after the first occurrence of such circumstances, and actually terminate employment within thirty (30) days following the expiration of the Company's thirty (30)-day cure period described above. Otherwise, any claim of such circumstances as Good Reason shall be deemed irrevocably waived by the Executive. |
(d)Termination Date, Etc. Termination Date shall mean in the case of the Executive's death, the date of death, or in all other cases of termination by the Company, the date specified in writing by the Company as the Termination Date; provided, however, that if the Executive's employment is terminated by the Company either for (i) reasons other than Cause or (ii) Disability, the date specified as the Termination |
(3)Subject to the Executive's timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA), for up to eighteen (18) months following the Termination Date, the Company shall, at its expense, provide to the Executive and the Executive's dependents medical and dental benefits similar in the aggregate to those provided to the Executive immediately prior to the Termination Date; provided, however, that the Company's obligation to provide such benefits shall cease upon the earlier of (i) the Executive's becoming eligible for such benefits as the result of employment with another employer and (ii) the expiration of the Executive's right to continue such medical and dental benefits under applicable law (such as COBRA); provided, further, that notwithstanding the foregoing, the Company shall not be obligated to provide the continuation coverage contemplated by this Section 9(a)(ii)(3) if it would result in the imposition of excise taxes on the Company for failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended (to the extent applicable). |
(d)This Section 9(d) shall apply if there is a termination of the Executive's employment (i) by the Company other than for death, Disability or Cause (including a termination by reason of the Company's written notice to the Executive of its decision not to extend the Agreement pursuant to Section 1 hereof) or (ii) by the Executive for Good Reason, in each case, either (A) during the one-year period following a Change in Control or (B) during the six (6) month period preceding a Change in Control; provided that to the extent a termination occurs pursuant to the foregoing clause (B), the Executive shall receive the benefits described in Section 9(a) in accordance with the terms thereof and any additional benefits provided in this Section 9(d) shall be paid in accordance with the terms hereof; provided further that if a Change in Control subsequently occurs, the unpaid balance of the benefits provided in Section 9(a) shall be provided in accordance with this Section 9(d). If any termination described in this Section 9(d) occurs, the Executive (or the Executive's estate, if the Executive dies after such termination and execution of the release but before receiving such amount) shall receive the following: |
(2)The Company shall pay the Executive an amount equal to two (2.0) times the Base Salary, payable in a lump sum within thirty (30) days following the Termination Date; provided that to the extent a Change in Control is not a change in ownership, a change in effective control or a change in the ownership of a substantial portion of the assets of the Company within the meaning of Code Section 409A then, notwithstanding the foregoing, any amount payable under this Section 9(d)(ii)(2) which constitutes nonqualified deferred compensation for purposes of Code Section 409A shall be payable in pro-rata equal installments over the two (2) year period following the Termination Date in accordance with Section 9(e) hereof; |
continuation coverage contemplated by this Section 9(d)(ii)(3) if it would result in the imposition of excise taxes on the Company for failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended (to the extent applicable); and |
(e)Except as otherwise expressly set forth herein, the amounts payable to the Executive pursuant to this Section 9 will be paid to the Executive at such times as the Executive would have otherwise been entitled to receive such amounts had the Executive not been terminated (determined in accordance with the Company's payroll practices at the time of termination) and only so long as the Executive has not breached the provisions of Section 10 hereof or any other restrictive covenant and/or non-competition agreement between the Executive and the Company or any of its affiliates. |
(g)Executive shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise and no such payment or benefit shall be eliminated, offset or reduced by the amount of any compensation provided to the Executive in any subsequent employment, except as provided in Section 9(a)(ii)(3) or Section 9(d)(ii)(3). |
(h)Except as otherwise expressly provided in Section 9 above, all of the Executive's rights to salary, bonuses, fringe benefits and other compensation hereunder (if any) which accrue or become payable after the Termination Date will cease upon the Termination Date. The Executive's termination of employment with the Company for any reason shall be deemed to automatically remove the Executive, without further action, from any and all offices held by Executive with the Company or its affiliates. The Executive shall execute such additional documents as requested by the Company from time to time to evidence the foregoing. |
With regard to any payment that is considered deferred compensation under Code Section 409A payable on account of a separation from service, such payment shall be made on the date which is the earlier of (A) the expiration of the six (6)-month period measured from the date of such separation from service of the Executive, and (B) the date of the Executive's death (the Delay Period) to the extent required under Code Section 409A. Upon the expiration of the Delay Period, all payments delayed pursuant to this Section shall be paid to the Executive in a lump sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein; and |
To the extent that any benefits to be provided during the Delay Period is considered deferred compensation under Code Section 409A provided on account of a separation from service, and such benefits are not otherwise exempt from Code Section 409A, the Executive shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse the Executive, to the extent that such costs would otherwise have been paid by the Company or to the extent that such benefits would otherwise have been provided by the Company at no cost to the Executive, the Company's share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified herein. |
(b)Confidentiality. The Executive shall not, during the term of this Agreement and thereafter, make any Unauthorized Disclosure. For purposes of this Agreement, Unauthorized Disclosure shall mean use by the Executive for the Executive's own benefit, or disclosure by the Executive to any person other than a person to whom disclosure is reasonably necessary or appropriate in connection with the performance by the Executive of duties as an executive of the Company or as may be legally required, of any confidential information relating to the business or prospects of the Company (including, but not limited to, any information and materials pertaining to any Intellectual Property as defined below); provided, however, that Unauthorized Disclosure shall not include the use or disclosure by the Executive of any publicly available information (other than information available as a result of disclosure by the Executive in violation of this Section 10(b)). This confidentiality covenant has no temporal, geographical or territorial restriction. |
or be connected with (as a stockholder, partner, or otherwise), any business, individual, partner, firm, corporation, or other entity that competes or plans to compete, directly or indirectly, with the Company or any of its products; provided, however, that the beneficial ownership by the Executive after termination of employment with the Company, either individually or as a member of a group, as such terms are used in Rule 13d of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the Exchange Act), of not more than two percent (2%) of the voting stock of any publicly held corporation shall not be a violation of Section 10 of this Agreement. |
(e)Intellectual Property. The Executive agrees that all inventions, designs and ideas conceived, produced, created, or reduced to practice, either solely or jointly with others, during the Executive's employment with the Company including those developed on the Executive's own time, which relate to or are useful in the Company's business (Intellectual Property) shall be owned solely by the Company. The Executive understands that whether in preliminary or final form, such Intellectual Property includes, for example, all ideas, inventions, discoveries, designs, innovations, improvements, trade secrets, and other intellectual property. All Intellectual Property is either work made for hire for the Company within the meaning of the United States Copyright Act, or, if such Intellectual Property is determined not to be work made for hire, then the Executive irrevocably assigns all rights, titles and interests in and to the Intellectual Property to the Company, including all copyrights, patents, and/or trademarks. The Executive agrees to, without any additional consideration, execute all documents and take all other actions needed to convey the Executive's complete ownership of the Intellectual Property to the Company so that the Company may own and protect such Intellectual Property and obtain patent, copyright and trademark registrations for it. The Executive also agrees that the Company may alter or modify the Intellectual Property at the Company's sole discretion, and the Executive waives all right to claim or disclaim authorship. The Executive represents and warrants that any Intellectual Property that the Executive assigns to the Company, except as otherwise disclosed in writing at the time of assignment, will be the Executive's sole exclusive original work. The Executive also represents that the Executive has not previously invented any Intellectual Property or has advised the Company in writing of any prior inventions or ideas. |
(f)Remedies. The Executive agrees that any breach of the terms of this Section 10 would result in irreparable injury and damage to the Company for which the Company would have no adequate remedy at law; the Executive therefore also agrees that in the event of said breach or any threat of breach, the Company shall be entitled to an immediate injunction and restraining order to prevent such breach and/or threatened breach and/or continued breach by the Executive and/or any and all persons and/or entities acting for and/or with the Executive, without having to prove damages. The terms of this paragraph shall not prevent the Company from pursuing any other available remedies for any breach or threatened breach hereof, including but not limited to the recovery of damages from the Executive. The Executive and the |
Company further agree that the confidentiality provisions and the covenants not to compete and solicit contained in this Section 10 are reasonable and that the Company would not have entered into this Agreement but for the inclusion of such covenants herein. The parties agree that the prevailing party shall be entitled to all costs and expenses, including reasonable attorneys' fees and costs, in addition to any other remedies to which either may be entitled at law or in equity. Should a court determine, however, that any provision of the covenants is unreasonable, either in period of time, geographical area, or otherwise, the parties hereto agree that the covenant should be interpreted and enforced to the maximum extent which such court deems reasonable. In the event of any violation of the provisions of this Section 10, the Executive acknowledges and agrees that the post-termination restrictions contained in this Section 10 shall be extended by a period of time equal to the period of such violation, it being the intention of the parties hereto that the running of the applicable post-termination restriction period shall be tolled during any period of such violation. In the event of a material violation by the Executive of this Section 10, any severance being paid to the Executive pursuant to this Agreement or otherwise shall immediately cease, and any severance previously paid to the Executive shall be immediately repaid to the Company. |
11.Employee Representation. The Executive expressly represents and warrants to the Company that the Executive is not a party to any contract or agreement and is not otherwise obligated in any way, and is not subject to any rules or regulations, whether governmentally imposed or otherwise, which will or may restrict in any way the Executive's ability to fully perform the Executive's duties and responsibilities under this Agreement. |
(a)This Agreement shall be binding upon and shall inure to the benefit of the Company, its successors and assigns, and the Company shall require any successor or assign to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession or assignment had taken place. The term the Company as used herein shall include any such successors and assigns to the Company's business and/or assets. The term successors and assigns as used herein shall mean a corporation or other entity acquiring or otherwise succeeding to, directly or indirectly, all or substantially all the assets and business of the Company (including this Agreement) whether by operation of law or otherwise. |
(b)Neither this Agreement nor any right or interest hereunder shall be assignable or transferable by the Executive, the Executive's beneficiaries or legal representatives, except by will or by the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive's legal personal representative. |
16.Miscellaneous. No provision of this Agreement may be modified, waived, or discharged unless such waiver, modification, or discharge is agreed to in writing and signed by the Executive and the Company. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreement or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not expressly set forth in this Agreement. |
20.Section 409A Compliance. The intent of the parties is that payments and benefits under this Agreement comply with Code Section 409A and the regulations and guidance promulgated thereunder and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. In no event whatsoever shall the Company be liable for any additional tax, interest |
This Amended and Restated Employment Agreement (Agreement) is made as of the 15th day of December, 2016, effective as of January 1, 2017, by and between Mercantile Bank Corporation, a Michigan corporation (the "Company"), Mercantile Bank of Michigan, a Michigan banking corporation (the "Bank" and collectively with the Company, the "Employers" and each, an "Employer"), and Robert T. Worthington (the "Employee"). |
1.Employment, Term, and Acceptance. The Company agrees to employ the Employee as its Senior Vice President, Chief Operating Officer, General Counsel and Secretary, and the Bank agrees to employ the Employee as its Senior Vice President, Chief Operating Officer, General Counsel and Secretary, for the period from January 1, 2017 through the Termination Date (the "Employment Period"), unless such employment is terminated earlier pursuant to Section 9 or 10 of this Agreement. The initial Termination Date is December 31, 2018. Effective as of December 31, 2017, and as of each December 31 after December 31, 2017, the Termination Date will automatically extend to the next succeeding December 31 after the then existing Termination Date unless at least thirty (30) days' prior to an December 31 automatic extension, the Employee, the Company or the Bank gives notice to the others that the Termination Date shall not be automatically extended on such December 31; in which case the Termination Date will not be extended. Accordingly, unless the Employee, the Company or the Bank gives notice that the Termination Date will not be extended, there will, as of each December 31, be an Employment Period of two years remaining. The Employee hereby accepts such employment. |
2.2Performance of Duties. The Employee shall perform such services and duties necessary or appropriate for the Employers as are normally expected of persons appointed to the positions identified in Section 1, in the business in which the Employers are engaged. The Employee shall perform his duties under this Agreement in accordance with reasonable standards and policies established from time to time by the Employers. |
3.Cash Compensation. In consideration of the services to be performed by the Employee under this Agreement, the Bank shall pay the Employee an annual base salary of $215,000 ("Base Cash Compensation"), payable in accordance with the normal payroll practices of the Bank. The Board of Directors of the Bank may adjust the Base Cash Compensation from time to time. In addition to the Base Cash Compensation described above, the Employee will be entitled to such bonuses and other discretionary compensation as may be awarded to the Employee from time to time by the Board of Directors of either of the Employers. |
4.Participation in Employee Benefit Plans. In addition to the cash compensation payable to the Employee under this Agreement, the Employee shall be entitled to participate in such employee benefit plans, whether contributory or non-contributory, such as group life and disability insurance plans, hospital, surgical, vision and dental benefit plans or other bonus incentive, profit sharing, stock option, retirement, deferred compensation or other employee benefit plans of the Employers as may now or hereafter exist to the extent that the Employee meets the eligibility requirements of any such plans. All such group life and disability insurance plans, hospital, surgical, vision and dental benefit plans are hereafter referred to as "Life, Disability and Medical Plans". If any bonus or incentive compensation plan payments constitute "deferred compensation" within the meaning of Code Section 409A and applicable Treasury regulations, such deferred compensation will be paid to the Employee within 2 months after the end of the calendar year in which it is payable, unless such bonus or incentive compensation is deferred pursuant to a timely election into a plan that complies with Code Section 409A. |
5.Out of Pocket Expenses. The Employee will be reimbursed by the Bank or the Company, as the case may be, for all reasonable expenses incurred in promoting its business; including expenses for entertainment, travel and similar items upon the presentation by Employee, from time to time, of an itemized account of such expenditures in a form and manner as determined by the Board of Directors or the chief financial or accounting officer of the Employer for whose account the expenditures are made; provided that such reimbursement shall be subject to any guidelines provided by the Board of Directors or Chief Executive Officer of the Bank or the Company prior to an expense being incurred. |
9.1Disability. In the event the Employee shall become Disabled (as hereinafter defined) during the Employment Period, the Bank or the Company may terminate the Employee's employment under this Agreement by giving the Employee written notice of such termination ("Disability Termination Notice"). In the event of any such termination during the Employment Period, the Bank shall continue to pay the Employee his Base Cash Compensation, at the rate in effect immediately prior to the giving of the Disability Termination Notice, in six (6) substantially equal monthly installments commencing on the first day of the month after the effective date of the termination of employment. The Employee shall also be entitled to receive a pro rata share of any incentive compensation payable for the year in which the termination of employment occurred, payable in a lump sum at the same time that such incentive compensation is paid to other participants in the incentive compensation program. In addition, the Employers shall cover the Employee under their disability plans, if any, in effect from time to time under the terms and conditions that such coverage is made available to other employees of the respective Employer, and the Employee shall be entitled to any benefits payable to the Employee under such disability plans. While disabled, the Bank shall continue to provide the Employee and the Employee's dependents with coverage under its Life, Disability and Medical Plans for six (6) months following the date of termination of employment to the extent that it may do so under the provisions of such plans, with the Employee's contributions to the premiums under such plans being no more than the amounts the Employee paid for such premiums prior to disability, adjusted from time to time for normal periodic increases in such premiums applied in general to employees of the Bank. |
The Employee shall be "Disabled" for purposes of this Agreement if the Employee (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months; or (ii) is, by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for at least three (3) months from an Employer's long-term disability policy. The Employee shall be deemed to be Disabled if the Employee is determined to be totally disabled by the Social Security Administration. |
9.2Death. In the event of the death of the Employee, the Employee's employment with the Employers shall terminate as of the date of death. Any life insurance policies owned by the Bank or the Company, and insuring the life of the Employee, shall be payable to the beneficiaries of such policies in accordance with the terms of such policies. |
9.3Extent of Obligations. The provisions of Sections 9.1 and 9.2 apply only to Disability or death occurring during the Employment Period while the Employee is employed by the Bank and the Company. Other than as set forth in Section 9.1 or 9.2, neither of the Employers shall have any obligation or liability to the Employee upon the Employee's death or Disability except that the Employee shall be entitled to all accrued rights under stock option, retirement and other employee benefit plans of the Company and the Bank, and the Bank shall promptly pay the Employee (or the Employee's personal representative) his Base Cash Compensation due through the effective date of the termination of employment, the cash equivalent of any accrued vacation days not taken as of such effective date (calculated based on the Employee's annual base salary attributable to each vacation day), and any out-of-pocket expenses for which the Employee is entitled to be reimbursed, and for which reimbursement has not yet been made. |
10.1Termination by the Bank for Cause. Each of the Employers shall have the right, at any time, to terminate the Employees employment for Cause (as defined herein). For purposes of this Agreement, the term "Cause" means (a) an act or acts of dishonesty committed by the Employee and intended by the Employee to result in the Employee's personal enrichment (other than to a trivial extent) at the expense of the Company, the Bank or any of their affiliates, (b) continuing intentional neglect by the Employee of the Employee's duties under Section 2 of this Agreement that cause or are expected to cause material harm to the Company, the Bank or any of their affiliates, and that is not remedied after receipt of notice from the applicable Employer, (c) the Employees conviction of a felony, or (d) the Employees intentional breach of the Employee's obligations under paragraph 2, 3 or 7 of the Non- Compete and Non-Solicitation Agreement which causes or may be expected to cause material harm to the Company, the Bank or any of their affiliates. Any termination for Cause shall be effective upon an Employer giving the Employee written notice that the Employee's employment is terminated, and setting forth in reasonable detail the basis for such termination, and that such termination is for Cause. |
10.2Termination by an Employer Without Cause. Each of the Employers shall have the right at any time to terminate the Employee's employment without Cause by giving the Employee written notice that the Employee's employment is terminated, and setting forth in reasonable detail the basis, if any, for such termination. Any such termination shall be effective upon the giving of such notice by the Employer. |
10.4Termination by Employee Without Good Reason. The Employee shall have the right at any time to terminate the Employee's employment with both Employers without Good Reason by giving the Employers written notice that the Employee is terminating employment. Any such termination shall be effective thirty (30) days after the giving of such notice by the Employee. |
(a)to the extent not previously paid, the Employee's Base Cash Compensation due through the effective date of the termination of employment, the cash equivalent of any accrued vacation days not taken as of such effective date (calculated based on the Employee's annual base salary attributable to each vacation day), and any out-of-pocket expenses for which the Employee is entitled to be reimbursed, and for which reimbursement has not yet been made; payable within ten (10) days of such effective date; plus |
(d)coverage for the Employee and the Employee's dependents under the Bank's Life, Disability, and Medical Plans for the eighteen (18) month period commencing on the effective date of the termination of employment to the extent that the Bank may do so under the provisions of such plans, and to the extent that it is not permitted to do so shall pay the Employee an amount that will permit the Employee to obtain and pay for substantially equivalent coverage. |
In order to receive the payments and benefits set forth in this Section 10.5, the Employee must be and remain in compliance with the Non-Compete and Non- Solicitation Agreement and must execute and not revoke a general release of all claims against the Company, the Bank and their affiliates and subsidiaries and their respective owners, officers, directors, employees and agents, in the form attached to this Agreement as Exhibit B. |
10.6Obligation of Employers upon Termination without Cause or Employee's Termination with Good Reason in Connection with a Change in Control. In the event that during the Employment Period, an Employer terminates the Employee's employment without Cause under Section 10.2, or the Employee terminates employment for Good Reason under Section 10.3; or the Employee's employment is terminated for any other reason except (i) for Cause under Section 10.1, (ii) without Good Reason under Section 10.4, (iii) for Disability or death pursuant to Section 9, and such termination occurs within 24 months after a Change in Control (as defined in Exhibit C); the Bank shall pay and provide to the Employee the following: |
(d)coverage for the Employee and the Employee's dependents under the Bank's Life, Disability, and Medical Plans for the eighteen (18) month period commencing on the effective date of the termination of employment to the extent that the Bank may do so under the provisions of such plans, and to the extent that it is not permitted to do so shall pay the Employee an amount that will permit the Employee to obtain and pay for substantially equivalent coverage. |
In order to receive the payments and benefits set forth in this Section 10.6, the Employee must be and remain in compliance with the Non-Compete and Non- Solicitation Agreement and must execute and not revoke a general release of all claims against the Company, the Bank and their affiliates and subsidiaries and their respective owners, officers, directors, employees and agents, in the form attached to this Agreement as Exhibit B. |
10.7Obligation of Employers upon Termination for Cause or by Employee without Good Reason. In the event that during the Employment Period, an Employer terminates the Employee's employment for Cause as provided for in Section 10.1, or the Employee terminates employment without Good Reason as permitted in Section 10.4, the Bank shall pay and provide to the Employee, to the extent not previously paid, the Employee's Base Cash Compensation due through the effective date of the termination of employment, plus the cash equivalent of any accrued vacation days not taken as of such effective date (calculated based on the Employee's annual base salary attributable to each vacation day), within ten (10) days of such effective date. In addition, the Employee shall be entitled to all accrued rights under stock option (except with respect to stock option plans, in the event of termination for Cause), retirement, and other employee benefit plans of the Company and the Bank. |
10.9Cooperation. The parties agree that certain matters in which the Employee will be involved during the Employment Period may necessitate the Employee's cooperation in the future. Accordingly, following the termination of the Employee's employment for any reason, to the extent reasonably requested by the Board of Directors of the Bank or the Company, the Employee shall cooperate with the applicable Employer in connection with matters arising out of the Employee's service to the applicable Employer; provided that, the Employers shall make reasonable efforts to minimize disruption of the Employee's other activities. The Bank shall reimburse the Employee for reasonable expenses incurred in connection with such cooperation and, to the extent that the Employee is required to spend substantial time on such matters, the Bank shall compensate the Employee at an hourly rate based on the Employee's Base Cash Compensation on the effective date of termination of employment. |
11.Delay in Severance Payments. If the Employee is a Specified Employee (as hereinafter defined) on the date of termination of employment, and if the severance payments set forth in Section 10.5(b) or 10.6(b) are "deferred compensation" under Code Section 409A, then the severance pay shall be payable as follows. No payments shall be made within six months after the Employee's termination of employment. On the first business day of the seventh month after the date on which termination of employment occurs, the Bank shall pay to the Employee an amount equal to the sum of seven (7) equal monthly installments payable under Section 10.5(b) or the lump sum payment payable under Section 10.6(b), as applicable. The remaining monthly installments payable under Section 10.5(b) shall be paid on the first business day of each month thereafter. |
15.Notices. Any notice required or permitted to be given under this Agreement shall be sufficient if in writing and if personally delivered or sent by registered or certified United States mail or by a nationally recognized overnight courier service, to the Employee's residence or the last address the Employee has provided in writing to the Employers, in the case of the Employee, or to its principal office in the case of an Employer. For purposes of this Agreement, notices shall be deemed given when received at the address or office specified in the preceding sentence. |
17.Assignment. This Agreement contemplates personal services by the Employee. Employee may not transfer or assign the Employee's rights or delegate Employee's duties and obligations under this Agreement. The rights and obligations of each Employer under this Agreement shall inure to the benefit of and shall be binding upon them and their successors and assigns. As used in this Agreement, the term "successor" shall include any person, firm, corporation, or other business entity which at any time whether by merger, purchase or otherwise acquires all or substantially all of the assets or business of an Employer. |
18.Entire Agreement and Regulatory Compliance. This instrument, together with the Non-Compete and Solicitation Agreement, contains the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements or understandings between the parties hereto relating to the subject matter hereof. This Agreement may not be changed orally but only by an agreement in writing signed by the Employee and the Employers. Employee acknowledges that each of the Employers is subject to supervision and regulation by bank regulatory agencies. If, at the time any payment would otherwise be made to Employee under this Agreement, such payment is prohibited or limited by any applicable statute or regulation, including, without limitation, the Federal Deposit Insurance Act and 12 C.F.R. Part 359 (Golden Parachute and Indemnification Payments), or by order of any such bank regulatory agency, the amount of such payment shall be reduced to the largest amount, if any, that may be paid at such time consistently with such statute, regulation, or order. Employee agrees that compliance with any such statute, regulation, or order, including any resulting reduction or elimination of any payment specified under this Agreement, shall not constitute a breach of this Agreement by the Employers. |
The Covered Claims include any claim or cause of action arising out of or relating to any act, omission or occurrence up to and including the date Employee signs this Agreement. This includes any claim or cause of action arising out of or relating to Employee's employment and termination of employment with the Employers, including claims and causes of action under any statute, regulation, ordinance or rule, including but not limited to: Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Employee Retirement Income Security Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Michigan Civil Rights Act, the Michigan Whistleblowers' Protection Act and the Michigan Persons With Disabilities Civil Rights Act, all as amended. The Covered Claims also include any claim or cause of action for breach of any commitment or agreement (except the attached agreement), and any claim or cause of action under the common law or arising out of public policy, including but not limited to claims or causes of action for intentional infliction of emotional distress, negligence or defamation. ---|---|--- |
Covered Claims do not include Employee's rights to vested benefits under the terms of Bank's 401(k) qualified retirement plan. This Agreement does not prohibit Employee from filing a charge or participating in an investigation by the United States Equal Employment Opportunity Commission but by executing this Agreement, Employee waives and releases any right Employee might otherwise have to any recovery of damages, attorney fees or other monetary or equitable relief or benefit that might result from such charge or investigation. ---|---|--- |
3.Employee verifies that Employee has or will immediately deliver to the Employers all property of each Employer in Employee's possession, custody and/or control, including, without limitation, all documents or recordings (including any and all copies) in hard copy, electronic form or otherwise, containing confidential information, as well as all supplies, equipment, computers, cellular and smart phones, credit cards, checks, petty cash, office keys, access cards and the like, and all materials and documents of any kind related to Company, Bank or any of their Affiliates, whether prepared by Employee or anyone else that is in Employee's possession, custody or control. |
Employee has the right to revoke this Agreement within 7 days after signing it, by delivering written notice of revocation to the Bank's Senior Vice President of Human Resources, and this Agreement will not become effective or enforceable until the 7-day revocation period has expired without revocation as provided above ("Effective Date"). ---|---|--- |
(i)Change in ownership of a Responsible Corporation. A change in ownership of a Responsible Corporation occurs on the date that any one person, or more than one person acting as a group, acquires ownership of stock of a Responsible Corporation that, together with stock held by such person or group, constitutes more than 50 percent of the total fair market value or total voting power of the stock of the Responsible Corporation. However, if any one person or more than one person acting as a group, is considered to own more than 50 percent of the total fair market value or total voting power of the stock of a Responsible Corporation, the acquisition of additional stock by the same person or persons is not considered to cause a change in the ownership of the Responsible Corporation (or to cause a change in the effective control of the Responsible Corporation (as defined in paragraph (ii)). |
(A)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) ownership of stock of the Responsible Corporation possessing 30 percent or more of the total voting power of the stock of the Responsible Corporation; or |
If any one person, or more than one person acting as a group, is considered to effectively control a Responsible Corporation, the acquisition of additional control of such Responsible Corporation by the same person or persons is not considered to cause a change in the effective control of such Responsible Corporation (or to cause a change in the ownership of such Responsible Corporation within the meaning of paragraph (i)). |
(B)the corporation that is liable for the payment of benefits under this Agreement (or all corporations liable for payment if more than one corporation is liable) but only if either the benefits are attributable to the performance of service by Employee for such corporation or there is a bona fide business purpose for such corporation or corporations to be liable for such payment and, in either case, no significant purpose of making such corporation or corporations liable for such payment is the avoidance of Federal income tax; or |
| EFFECTIVE DATE: | | This Executive Employment Agreement (this Agreement) is dated as of March 7, 2017 (the Effective Date) ---|---|---|--- | | | | PARTIES: | | Stillwater Mining Company | | | 26 W Dry Creek Circle, Suite 400 | | | Littleton, CO 80120 | | | (Employer) | | | | | | Dee L. Bray | | | PO Box 347 | | | 425 Granite Peak Drive | | | Columbus, MT 59019 | | | (Executive) |
Cause shall mean (1) any gross misconduct, negligence, or omission by Executive; (2) Executives material failure or refusal to adhere to the terms of this Agreement or to Employers written policies, rules and practices applicable to Executive; (3) Executives unauthorized disclosure of Confidential Information (defined below) or breach of the Confidentiality provisions contained herein; (4) a material act or acts of dishonesty by Executive involving the Employer; (5) conduct of Executive which is materially injurious to the Employer, monetarily or otherwise; or (6) commission by Executive of a criminal offense that, if committed in the State of Montana, would have constituted a felony under the laws of the State of Montana or the United States. |
Good Reason shall mean a special right of Executive to terminate employment at his initiative within 6 months following the occurrence, without Executives written consent, of one or more of the following events (except as a result of a prior termination), provided that Executive has provided Employer with notice of such event within 90 days of its initial existence and Employer has not remedied such condition within 30 days of such notice: |
3.1 Full-Time Best Efforts. Executive shall devote the professional time and attention required to perform Executives obligations under this Agreement, and shall at all times faithfully, industriously and to the best of Executives ability, experience and talent perform all of Executives obligations under this Agreement. Until this Agreement is terminated, Executive shall not be employed or engaged by any other person or firm other than Employer unless otherwise provided for in the Employers policies or authorized by the Board. |
4.1 Term. The term of this Agreement shall begin on the Effective Date and continue until 11:59 p.m. on March 6, 2018 (Employment Term). This Agreement may be renewed for successive one-year terms upon written agreement of both parties no later than thirty (30) days prior to the end of the term. |
| (a) | This Agreement may be terminated by the agreement of the Employer and the Executive. ---|---|--- | | | (b)| This Agreement and the Executives employment shall terminate immediately upon Executives death. | | | (c) | This Agreement shall terminate on the date on which the Executive will have had a disability (which is defined to mean any mental or physical condition as a result of which the Executive is unable or fails to perform the duties required of the Executive under this Agreement (Disability)) for a period of at least ninety days (which need not be consecutive) during any twelve month period, with the date of the termination of the Executives employment under this Agreement being the last date of the ninety day period, due to the Executives failure to perform the duties required of the Executive under this Agreement. During any period of disability the Executive must exhaust available vacation and sick leave. |
| (d) | Employer may terminate this Agreement immediately upon notice for Cause. ---|---|--- | | | (e) | Upon 30 days written notice to Executive and Executives failure to cure during the 30-day notice period, Employer may terminate this Agreement for Executives Underperformance. | | | (f) | Executive may terminate this Agreement upon 60 days written notice to Employer with or without Good Reason. | | | (g) | Upon termination of Executives employment under this Agreement, Employer shall have no further obligation to Executive except as specifically provided under this Agreement. Executive shall return to Employer any and all equipment, client, project and investor information including, without limitation, confidential files, proprietary information, client files, investor information, project files, construction files, electronic equipment, vehicles, keys, credit cards, and the like, owned by Employer and used by, or in the possession of, Executive. |
(b) The award is earned annually and is based upon achievement of performance targets established and approved by the Board annually. Except as otherwise provided in this Agreement, Executive must be employed by Employer on the last day of the designated performance period in order to be entitled to payment of any STIP bonus. |
(a) Executive will be eligible to participate in Employers Long-Term Incentive Plan (LTIP), providing an opportunity for Executive to earn a grant of equity instruments with a target value of 50% of the Base Salary for each calendar year of the Employment Term starting in 2017, which may include time and performance based awards as determined by the Compensation Committee annually. |
(b) The terms and conditions of each LTIP grant (including performance targets) will be set forth in an annual award agreement approved by the Board, and (if applicable) subject to the Employers 2012 Equity Incentive Plan or any subsequent or superseding plans. Such terms and conditions will include provisions for complete or partial payout of an LTIP award in the event of Executives death or separation from service due to disability, termination for Good Reason, termination for Underperformance, termination following a Change in Control (as defined in the LTIP), or (under certain circumstances) expiration of this Agreement without renewal. |
5.5 Fringe Benefits. The Executive shall be entitled to participate in any plans, arrangements or distributions by the Employer pertaining to or in connection with any health insurance, pension, retirement and profit sharing plans or benefits which the Employer adopts for the senior management executives of the Employer (the Fringe Benefits) on terms no less favorable than provided to other Named Executive Officers. The Executive will be subject to all of the rules of the Employers plans providing the Fringe Benefits, including without limitation, rules regarding participation and vesting. |
6.1 Employers Termination of Executive for Cause or Executives Resignation without Good Reason. In the event that Employer terminates Executives employment for Cause or Executive resigns without Good Reason, Employer shall pay Executive any accrued but unpaid Base Salary through the date of termination or resignation, all accrued but unused vacation earned through the date of termination or resignation, and any reimbursement of expenses owed pursuant to this Agreement on the Employers next regularly scheduled pay day. Executive will not be eligible for any STIP and LTIP award payments for the year in which Executives employment terminates for Cause or Executive resigns without Good Reason, and unvested equity awards shall be forfeited on the date of termination or resignation. |
6.3 Employers Termination of Executive for Underperformance or Executives Resignation for Good Reason. In the event that Employer terminates Executives employment for Underperformance or Executive resigns for Good Reason, Employer shall pay Executive the following severance benefits upon execution of a complete release in favor of Employer, its affiliates, and all of their respective officers, directors, employees, principals, managers, partners, members, attorneys, and representatives, in form and substance satisfactory to the Employer: |
(d) an amount equal to two times the Base Salary in effect at the time of the resignation to be paid out in 24 equal monthly installments commencing on the 1st day of the month following the 3 month anniversary of the termination date and continuing on the 1st day of each month thereafter until paid in full (subject, however, to delay as provided in Section 13.11 of this Agreement); |
(f) an amount equal to 18 months of Executives cost to continue group medical coverage pursuant to the federal law commonly known as COBRA, 29 U.S.C. 1162, et seq., provided that Executive is eligible for and elects such continuation coverage, and provided that such amount will be subject to all required federal and state deductions and withholdings. |
The Employer will obtain and maintain directors and officers liability insurance coverage in an amount equivalent to that of a well-insured similarly situated company. Any directors and officers liability insurance covering Executive will continue to apply following the period in which Executive is serving as officer or director of the Employer for actions or omissions during the period in which Executive was acting as officer or director. |
10.1 Confidential Information. Confidential Information as used in this Agreement shall mean any and all communications, information, records, documents, material, data or ideas regarding the Company, including, without limitation, lists of customers; names, addresses, electronic mail addresses and telephone numbers of customers; customer account information; lists of expiration dates of insurance policies sold to customers; financial models and spreadsheets; project development plans and specifications; partnership agreements and legal documents; corporate information and proprietary data as well as future development plans; and any communication with investors, prospective investors, partners, developers, architects, engineers, contractors, lenders, consultants or any other service providers. Information disclosed to the Employee by the Employer or learned by the Employee in the course of the Employees employment with the Employer shall be considered Confidential Information by the Employee unless the information is conspicuously designated as Not Confidential or, if provided orally, identified as not confidential at the time of disclosure. |
10.2 Nondisclosure and Nonuse Obligation . The Employee shall not disseminate or in any way disclose any Confidential Information to any person, agency, department, firm or business, provided, the Employee may disclose Confidential Information to other employees of the Employer, including, without limitation, officers, accountants, attorneys, and directors of the Employer. Notwithstanding any other provision of this Agreement, this Agreement shall not apply to any Confidential Information: (i) to the extent disclosure is required by law or is necessary to establish the rights of either party to this Agreement; (ii) disclosure of which is authorized in writing by the Employer; or (ii) that is in the public domain or becomes part of the public domain through no violation of this Agreement. The Employee shall promptly give notice to the Employer of any unauthorized use or disclosure of any Confidential Information. The Employee shall assist the Employer in remedying any unauthorized use or disclosure of any Confidential Information. |
11.2 Non-Solicitation. Executive agrees that from and after the Effective Date and until two years after the Termination Date, he will not, except on behalf of Employer or with the express written permission of Employer, which may be given or withheld in Employers sole discretion, directly or indirectly solicit, or attempt to solicit (on Executives own behalf or on behalf of any other person or entity) the employment or retaining of any employee or consultant of Employer or any of Employers affiliates. |
13.3 No Waiver. The failure of either party to demand strict performance and compliance with any part of this Agreement shall not be deemed to be a waiver of the rights of such party under this Agreement or by operation of law. Any waiver by either party of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any subsequent breach thereof. |
13.5 Counterparts and Facsimile Signatures. This Agreement and any amendments to this Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one agreement. A facsimile or electronic signature to this Agreement and any amendments to this Agreement shall be deemed an original and binding upon the party against whom enforcement is sought. |
13.7 Entire Agreement. The terms of this Agreement express and constitute the entire agreement between the parties pertaining to the subject matter of this Agreement and supersede all prior and contemporaneous agreements, term sheets, offer letters, understandings, negotiations and discussions, whether oral or written, of the parties. No supplement, modification, waiver or termination of this Agreement shall be binding, unless executed in writing by the party to be bound. |
13.8 Acknowledgments; Separate Representation. Each of the parties represents, acknowledges and agrees that the respective party has been advised to consult with professional legal and accounting advisors with respect to the legal and tax consequences of the transactions described in this Agreement and all agreements referenced in this Agreement, and each party has obtained and relied upon its own independent legal and accounting advisors in connection with the transactions contemplated in this Agreement. |
13.12 Clawback. Notwithstanding any other provisions in this Agreement, any compensation that is otherwise payable under this Agreement and that is subject to recovery under any law, government regulation or stock exchange listing requirement will be subject to such deductions and clawback as may be required to be made pursuant to such law, government regulation or stock exchange listing requirement (or any policy adopted by the Employer pursuant to any such law, government regulation or stock exchange listing requirement). |
| EMPLOYER: ---|--- | | Stillwater Mining Company | | | /s/ Michael J. McMullen | Michael J. McMullen | President and Chief Executive Officer | | | | EXECUTIVE: | | /s/ Dee L. Bray | Dee L. Bray | Vice President of Mine Operations |
| 1.1.| The Company hereby appoints the Employee to act in the position described in Exhibit A. The Employee shall report regularly to the officer of the Company set forth in Exhibit A with respect to Employee's activities and shall be subject to the direction and control of such officer. ---|---|--- | | | 1.2.| During the Term (as such term is defined below), Employee's employment shall be on a full time basis, Employee shall devote Employee's entire business time and attention to the business of the Company and shall not undertake or accept any other paid or unpaid employment or occupation except for the such engagement parties agreed upon prior to signing this agreement or with the prior written consent of the management of the Company. | | | 1.3.| Employee shall perform Employee's duties diligently, in good faith and in furtherance of the Company's best interests. Employee agrees and undertakes to inform the Company, immediately after Employee becomes aware of it, of any matter that may in any way raise a conflict of interest between the Employee or any member of Employee's family and the Company. During the Term, Employee shall not receive any payment, compensation or benefit from any third party in connection, directly or indirectly, with the execution of Employee's position. | | | 1.4.| Employee shall perform Employee's duties hereunder at the Company's facilities in Israel, but understands and agrees that Employee's position may involve travel abroad. |
The Employee represents and warrants that the execution and delivery of this Agreement and the fulfillment of its terms will not constitute a default under or conflict with any agreement or undertaking that the Employee may be bound by. Further, with respect to any past engagement the Employee may have had with third parties and with respect to any permitted engagement the Employee may have with any third party during the term of the Employee's engagement with the Company (for purposes hereof, such third parties shall be referred to as "Other Employers"), the Employee represents, warrants and undertakes that: (a) the Employee's engagement with the Company is and will not be in breach of any of the Employee's undertakings toward Other Employers, and (b) the Employee will not disclose to the Company, nor use, in provision of any services to the Company, any proprietary or confidential information belonging to any Other Employers. |
| 3.1.| The Employee has assumed, or shall assume, Employee's duties on the date set forth in Exhibit A (the "Commencement Date"). This Agreement shall commence on the Commencement Date and shall continue until it is terminated as hereafter provided. The term of this Agreement shall be referred to herein as the "Term". ---|---|--- | | | 3.2.| Either party to this Agreement may terminate this Agreement and the employment relationship hereunder at its own discretion at any time, by giving a prior written notice of 60 days to the other party. | | | 3.3.| Notwithstanding the aforesaid: (a) in the event of Cause (as defined hereafter) or in the event of the Disability of Employee (as hereinafter defined), the Company shall be entitled to terminate this Agreement immediately and this Agreement and the employment relationship shall be deemed effectively terminated as of the time of delivery of the Company's notice to that extent. The term "Cause" as used herein shall mean: (i) a determination by the Company, in the reasonable judgment of the Board of Directors of the Company (the Board), that the Employee has engaged in gross misconduct or breach of discipline or a serious breach of confidence; (ii) indictment or conviction of any felony involving moral turpitude or affecting the Company or its subsidiaries; (iii) any refusal to carry out a reasonable directive of the Board which involves the business of the Company or any subsidiaries thereof and was capable of being lawfully performed; (iv) embezzlement of funds of the Company or its subsidiaries; (v) falsification of records or reports; (vi) ownership, direct or indirect, of an interest in a person or entity (other than a minority interest in a publicly traded company) in competition with the products or services of the Company or its subsidiaries, including those products or services contemplated in a plan adopted by the Board or its subsidiaries; (vii) any breach of the Employee's fiduciary duties or duties of care to the Company (except for conduct taken in good faith); (viii) any breach of this Agreement or the Proprietary Information, Non-Competition and Assignment of Inventions Agreement attached hereto as Exhibit B, by the Employee, and (ix) any conduct (other than conduct in good faith) materially detrimental to the Company or its subsidiaries; (x) any other act or omission that constitutes "cause" under the laws of any jurisdiction in which the Company or any of its subsidiaries conducts its business at the time of such act. Disability shall mean any physical or mental illness or injury as a result of which Employee remains absent from work for a period of six (6) successive months, or an aggregate of six (6) months in any twelve (12) month period. Disability shall occur upon the end of such six-month period; (b) Employee's employment shall be deemed immediately terminated in case of his death. | | | 3.4.| During the period following notice of termination by either party, unless otherwise determined by the Company in a written notice to Employee, the Employee shall continue to perform any and all of Employee's duties under this Agreement and shall cooperate with the Company and use Employee's best efforts to assist the integration into the Company's organization of the person or persons who will assume the Employee's responsibilities. |
| 6.1.| Subject to the terms of the Extension Order for Comprehensive Pension Insurance in the Industry pursuant to the Collective Agreements Law 5717-1957 (the "Extension Order") as may be amended from time to time, the Company shall insure the Employee at the Employee's choice either at a pension fund or under an accepted Manager's Insurance Scheme, either of which to be selected by the Employee (the "Insurance Scheme"). In addition, the Employee will be entitled to have a study fund (Keren Hishtalmut) at his discretion of which the Company will pay 7.5% and 2.5% will be paid be the Employee. ---|---|--- | | | 6.2.| With regard to Severance Pay Law (1963), notwithstanding any terms of the applicable extension order, the terms of section 14 of said law will not apply, and the following terms shall apply: |
| 6.2.1| Upon termination of Employees employment in the Company by the Company (dismissal or retirement) for any reason other than for Cause (as such term is defined in section 3.3 of the Agreement) the Company shall pay to the employee the severance payment due to him under the Severance Pay Law (1963), by way of (i) automatically releasing and transferring to Employee all rights and payments accrued in the Insurance Scheme (and filling and submitting all required forms in this regard); and (ii) where the amounts so accrued are smaller than the amount of severance payments due to the Employee as aforesaid - paying to the Employee the balance between such accumulated amounts and the severance fees due to Employee as aforesaid. ---|---|--- |
| 6.3| The Company shall pay an amount of 2.5% of the Salary towards a fund for the event of loss of working ability (Ovdan Kosher Avoda). ---|---|--- | | | 6.4| The Employee will bear any and all taxes applicable to the Employee in connection with any amounts paid by the Employee and/or the Company to the Insurance Scheme under this Section 6. |
| 7.1.| The Employee shall be entitled to be reimbursed for Employee's necessary and actual business expenses including related vehicle expenses such as gasoline, toll roads and acceptable maintenance charges in accordance with the Companys policies, as the same shall change from time to time Employee shall be entitled to that number of vacation days per year set forth in Exhibit A. Vacation days may be carried forward from one year to the next to the extent permitted by law. The Employee shall not receive payment in lieu of any unused vacation days, except in the context of the termination of the Employee's employment with the Company. ---|---|--- | | | 7.2.| The Employee's entitlement to sick leave shall be in accordance with applicable law - against the presentation of appropriate medical records. | | | 7.3.| The Employee shall be entitled to Recreation Pay (Dmei Havraa) pursuant to applicable extension order. | | | 7.4.| Employee shall be entitled to additional benefits if and to the extent set forth in Exhibit A. |
| 8.1.| The preamble to this Agreement constitutes an integral part hereof. Headings are included for reference purposes only and are not to be used in interpreting this Agreement. ---|---|--- | | | 8.2.| In case of contradiction between any of the Agreements provisions and the provisions of Exhibits A or B, the provisions of the Exhibits shall govern. | | | 8.3.| The laws of the State of Israel shall apply to this Agreement and the sole and exclusive place of jurisdiction in any matter arising out of or in connection with this Agreement shall be the Tel-Aviv Regional Labor Court. | | | 8.4.| The provisions of this Agreement are in lieu of the provisions of any collective bargaining agreement, and therefore, no collective bargaining agreement shall apply with respect to the relationship between the parties hereto (subject to the applicable provisions of law). | | | 8.5.| No failure, delay of forbearance of either party in exercising any power or right hereunder shall in any way restrict or diminish such party's rights and powers under this Agreement, or operate as a waiver of any breach or nonperformance by either party of any terms of conditions hereof. | | | 8.6.| In the event it shall be determined under any applicable law that a certain provision set forth in this Agreement is invalid or unenforceable, such determination shall not affect the remaining provisions of this Agreement unless the business purpose of this Agreement is substantially frustrated thereby. | | | 8.7.| This Agreement constitutes the entire understanding and agreement between the parties hereto, supersedes any and all prior discussions, agreements and correspondence with regard to the subject matter hereof, and may not be amended, modified or supplemented in any respect, except by a subsequent writing executed by both parties hereto. | | | 8.8.| The Employee acknowledges and confirms that all terms of Employee's employment are personal and confidential, and undertakes to keep such terms in confidence and refrain from disclosing such terms to any third party. |
The Company: Enertec Electronics Ltd. | | Employee: Oren Harari ---|---|--- | | | | By: | /s/ David Lucatz | | By: | /s/ Oren Harari Name: | David Lucatz | | Name: | Oren Harari Title: | President and Chief Executive Officer | | Title: | Chief Financial Officer |
In the event of an Entitling Transaction, Employee shall be entitled to a cash bonus based on the following milestones: If the Entitling Transaction shall be (i) for a total consideration, equity and/or debt fund raising of up to USD $10 million, Employee shall be entitled to a bonus equal to 0.5% of the Entitling Transaction related consideration, equity and/or debt fund raising; (ii) for a total consideration, equity and/or debt fund raising between USD $10 million and USD $30 million, Employee shall be entitled to a bonus equal to 0.33% of the Entitling Transaction related consideration, equity and/or debt fund raising; or (iii) for a total consideration of over USD $30 million Employee shall be entitled to a bonus equal to 0.2% of the Entitling Transaction related consideration, equity and/or debt fund raising; all of the above provided however that in any event the bonus due and payable to Employee per each Entitling Transaction, such bonus is capped and shall not exceed USD 250,000. |
In case the above bonus compensation will be less than $50,000 per each 12 month of employment commencing January 18, 2017, the Company guarantees to pay Employee the difference between $50,000 and the actual bonus compensation paid. ---|--- | Vacation Days per Year | 22 | Grant of Options | |
A pre condition for the effectiveness of this Agreement shall be the approval by the Employee and MICT (through its compensation committee and/or the board of directors of MICT) for adoption of the following terms related to the Options: 1/4 of the Option will vest on the date of grant, and the remainder of the Option shall vest at a rate of 1/4 upon the completion of every year from the date of the commencement date. Upon the completion of 3 years following the date of grant (the Final Date) or at such earlier date, as set below, all Options shall become vested, |
The Company: Enertec Electronics Ltd. | | Employee: Oren Harari ---|---|--- | | | | By: | /s/ David Lucatz | | By: | /s/ Oren Harari Name: | David Lucatz | | Name: | Oren Harari Title: | President and Chief Executive Officer | | Title: | Chief Financial Officer |
| 1.1.| All the capitalized terms herein shall have the meanings ascribed to them in the Employment Agreement to which this Exhibit is attached (the Agreement); however, the term "Company" herein includes the parent company of the Company and any subsidiary thereof, as applicable. For purposes of any undertaking of the Employee toward the Company, the term Company shall include all subsidiaries and affiliates of the Company. ---|---|--- | | | 1.2.| The Employee's obligations and representations and the Company's rights under this Exhibit shall apply as of the commencement of the employment relationship between the Company and the Employee, regardless of the date of execution of the Agreement. |