AMENDMENT TO EMPLOYMENT
AGREEMENT
THIS AMENDMENT TO
EMPLOYMENT AGREEMENT (this “Amendment”) is entered into
as of December 31, 2008 by and between Robert W. Fishback, an
individual (the “Executive”) and Ultralife Corporation,
a Delaware corporation (the “Company”).
WHEREAS, the
Company and the Executive entered into the Employment Agreement,
effective as of January 1, 2007 (the “Agreement”);
and
WHEREAS,
Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”), and the Treasury Regulations and other
official guidance issued thereunder (collectively,
“Section 409A”), require that the Company’s
compensation and benefit arrangements be in documentary compliance
with Section 409A on or before December 31, 2008, and
this requires amendments to the Agreement as set forth more fully
below.
NOW, THEREFORE,
the Company and the Executive hereby agree that the Agreement is
amended as follows:
1. In
Section 3, the initial salary amount is amended to read
“$220,000” and “2007” is replaced with
“2008”.
2. The
following is appended to the end of Section 4:
Bonuses shall
be paid in accordance with the guidelines set forth under the bonus
program but in all events a bonus shall be paid between January 1
and December 31 of the year following the year in which the
bonus is earned.
3. Section 6(b)
is amended to read as follows:
Involuntary
Termination . If at any
time during the term of this Agreement, other than following a
Change in Control to which Section 6(c) applies, the Company
terminates the employment of Executive without Business Reasons or
a Constructive Termination occurs, then Executive shall be entitled
to receive the following: (i) salary and the cash value of any
accrued vacation (consistent with the Company’s vacation
policies then in effect) through the Termination Date plus
continued salary for a period of eighteen (18) months
following the Termination Date, payable in accordance with the
Company’s regular payroll schedule as in effect from time to
time, (ii) an amount equal to the average of the bonuses paid
to Executive during the two preceding fiscal years or, if no
bonuses were paid during such period, an amount equal to
Executive’s then current annual target bonus, to be paid
between January 1 and December 31 of the year following the
year in which the termination occurs, (iii) acceleration of
vesting of all outstanding stock options, and
1
other equity
arrangements subject to vesting and held by Executive subject to
the provision, however, that the acceleration shall not cover more
than two (2) years from the Termination Date (and in this regard,
all such options and other exercisable rights held by Executive
shall remain exercisable for one year following the Termination
Date, or through the original expiration date of the stock options
or other exercisable rights, if earlier), (iv) to the extent
COBRA shall be applicable to the Company, continuation of health
benefits for Executive, Executive’s spouse and any dependent
children, at Executive’s cost, for a period of 18 months
after the Termination Date or such longer period as may be
applicable under the Company’s policies then in effect,
provided the Executive makes the appropriate election and payments,
and (v) no other compensation, severance or other benefits,
except only that this provision shall not limit any benefits
otherwise available to Executive under Section 6(c) in the case of
a termination following a Change in Control.
4.
Section 6(c)(i) is amended to read as follows:
Benefits . If at any time during the term of this
Agreement a “Change in Control” occurs (as defined
below), and the Company terminates the employment of Executive
without Business Reasons or a Constructive Termination occurs
within eighteen (18) months of the date of the Change in
Control, then Executive shall be entitled to receive the following:
(i) salary and the cash value of any accrued vacation
(consistent with the Company’s vacation policies then in
effect) through the Termination Date plus an amount equal to
eighteen (18) months of Executive’s salary as then in
effect, payable immediately upon the Termination Date, (ii) an
amount equal to the greater of the average of the bonuses paid to
Executive during the two preceding fiscal years or
Executive’s then current annual target bonus, to be paid
between January 1 and December 31 of the year following the
year in which the termination occurs, (iii) acceleration in
full of vesting of all outstanding stock options, and other equity
arrangements subject to vesting and held by Executive (and in this
regard, all such options and other exercisable rights held by
Executive shall remain exercisable for one year following the
Termination Date, or through the original expiration date of the
stock options or other exercisable rights, if earlier),
(iv) to the extent COBRA shall be applicable to the Company,
continuation of health benefits for Executive, Executive’s
spouse and any dependent children, at Executive’s cost, for a
period of eighteen (18) months after the Termination Date or
such longer period as may be applicable under the Company’s
policies then in effect, provided Executive makes the appropriate
election and payments, and (v) no other compensation,
severance or other benefits. Payment of benefits shall be
accelerated upon a Change
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