Confidential
Communication
This AGREEMENT,
dated as of January 21, 2009 (the “ Agreement
”), between White Electronic Designs Corporation (the “
Company ”), and Roger A. Derse (the “
Executive ”).
1.
Employment, Duties and Agreements .
(a) The
Company hereby agrees to employ Executive as the V.P., CFO and the
Executive hereby accepts such position and agrees to serve the
Company in such capacity during the employment period described in
Section 3 hereof (the “ Employment Period
”). The Executive shall report to the Office of the Chief
Executive Officer (the “ Office of the CEO ”) of
the Company and shall have such duties and responsibilities as the
Office of the CEO may reasonably determine from time to time as are
consistent with the Executive’s position as V.P., CFO. During
the Employment Period, the Executive shall be subject to, and shall
act in accordance with, all reasonable instructions and directions
of the Office of the CEO and all applicable policies and rules of
the Company.
(b) During
the Employment Period, excluding any periods of vacation and sick
leave to which the Executive is entitled, the Executive shall
devote his full working time, energy and attention to the
performance of his duties and responsibilities hereunder and shall
faithfully and diligently endeavor to promote the business and best
interests of the Company.
(c) During
the Employment Period, the Executive may not, without the prior
written consent of the Company, directly or indirectly, operate,
participate in the management, operations or control of, or act as
an executive, officer, consultant, agent or representative of, any
type of business or service (other than as an executive of the
Company), provided that it shall not be a violation of the
foregoing for the Executive to manage his personal, financial and
legal affairs so long as such activities do not interfere with the
performance of his duties and responsibilities to the Company as
provided hereunder.
(a) As
compensation for the agreements made by the Executive herein and
the performance by the Executive of his obligations hereunder,
during the Employment Period, the Company shall pay the Executive,
pursuant to the Company’s normal and customary payroll
procedures, a base salary at the rate of $240,500.00 per annum (the
“ Base Salary ”). The Board of Directors of the
Company and/or its Compensation Committee (both or either herein
may be referred to as the “ Board ”) shall
review the Executive’s Base Salary from time to
time.
(b) In
addition to the Base Salary, during the Employment Period, the
Executive may be eligible to participate in any annual bonus
program that may be established and approved from time to time by
the Board based on criteria as may be determined by the Board (the
“ Bonus ”). Such bonus, if applicable for a
given fiscal year, shall be paid within 2 1 / 2
months following the end of the
fiscal year to which it relates; provided, however, that the Bonus
shall not be deemed earned until paid, and Executive must remain
employed through the date the Bonus is paid to to be eligible to
receive the Bonus or any portion thereof.
(c) During
the Employment Period: (i) except as specifically provided
herein, the Executive shall be entitled to participate in all
savings and retirement plans, practices, policies and programs of
the Company which are made available generally to all other
employees of the Company, and (ii) except as specifically
provided herein, the Executive and/or the Executive’s family,
as the case may be, shall be
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Confidential
Communication
eligible for
participation in, and shall receive all benefits under, all welfare
benefit plans, practices, policies and programs provided by the
Company which are made available generally to all other employees
of the Company (excepting any plan, practice, policy or program
preempted by this Agreement such as policies which provides
benefits in the nature of severance or continuation pay), including
but not limited to medical, dental, vision and term life insurance
benefits, subject to all of the terms, conditions and premiums
applicable to other employees of the Company.
(d) During
the Employment Period, the Company shall provide the Executive with
a car allowance of $850.00 per month.
(e) During
the Employment Period, the Executive shall be entitled to at least
five (5) weeks of paid vacation time for each calendar year in
accordance with the Company’s normal and customary policies
and procedures now in force or as such policies and procedures may
be modified in the future for employees of the Company
generally.
(f) During
the Employment Period, the Company shall reimburse the Executive
for all reasonable business expenses upon the presentation of
statements of such expenses in accordance with the Company’s
normal and customary policies and procedures now in force or as
such policies and procedures may be modified with respect to senior
executive officers of the Company.
The Company shall
employ Executive on the terms and subject to the conditions of this
Agreement commencing as of the date of the execution of this
Agreement (the “ Effective Date ”). Except as
otherwise provided herein, Executive shall be considered an
“at-will” employee, meaning that, subject to the
provisions and other consequences of this Agreement, no cause or
notice is required for termination. The period during which
Executive is employed by the Company pursuant to this Agreement
shall be referred to as the “ Employment Period
.” The Executive’s employment hereunder and the
Employment Period shall terminate upon the earliest to occur of the
following events:
(a)
Death . The Executive’s employment hereunder shall
terminate upon his death.
(b)
Disability . The Company shall be entitled to terminate the
Executive’s employment hereunder for “
Disability ” if, as a result of the Executive’s
incapacity due to physical or mental illness or injury, the
Executive shall have been unable to perform his duties hereunder
for a period of ninety (90) consecutive days, and within
thirty (30) days after Notice of Termination (as defined in
Section 4 below) for Disability is given following such 90-day
period the Executive shall not have returned to the performance of
his duties on a full-time basis. Nothing in this Agreement shall be
interpreted to affect or limit any party’s rights or
obligations under the Americans with Disabilities Act or similar
state law.
(c)
Cause . For purposes of this Section, “Cause”
shall mean discharge resulting from a determination by the Company
that the Executive has (i) been convicted of a criminal
offense involving dishonesty, fraud, theft, embezzlement, breach of
trust or moral turpitude; (ii) performed an act or failed to act
which, if he were prosecuted and convicted, would constitute a
crime or offense involving money or property of the Company;
(iii) violated the provisions of Section 8 pertaining to
confidential information; or (iv) willfully refuses to perform
the duties reasonably assigned to Executive and consistent with his
status as V.P., CFO of the Company, provided however that this
Section 3(c)(iv) shall not apply following a Change in Control
as defined in Section 5(c).
(d)
Without Cause . The Company may terminate the
Executive’s employment hereunder during the Employment Period
without Cause.
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Communication
(e)
Voluntarily . The Executive may voluntarily terminate his
employment hereunder (other than for Good Reason), provided that
the Executive provides the Company with notice of his intent to
terminate his employment at least four (4) weeks in advance of
the Date of Termination (as defined in Section 4 below). In
the event Executive terminates his employment or ceases his duties
without providing four (4) weeks notice or fails to fulfill
Executive’s principal job responsibilities during such notice
period, the Company, at its option and without regard to
Section 3(c), may deem Executive’s employment terminated
for Cause.
(f) For
Good Reason . The Executive may terminate his employment
hereunder for Good Reason and any such termination shall be deemed
a termination by the Company without Cause. For purposes of this
Agreement, “ Good Reason ” shall mean (i) a
material breach of this Agreement by the Company,
(ii) circumstances that give rise to a constructive
termination under applicable state law; provided that
in either (i) or (ii) above, the Executive shall notify
the Company within thirty (30) days after the event or events
which the Executive believes constitute Good Reason hereunder and
shall describe in such notice in reasonable detail such event or
events and provide the Company a thirty (30) day period after
delivery of such notice to cure such breach or
diminution.
4.
Termination Procedure .
(a)
Notice of Termination . Any termination of the
Executive’s employment by the Company or by the Executive
during the Employment Period (other than a termination on account
of the death of Executive) shall be communicated by written “
Notice of Termination ” to the other party hereto in
accordance with Section 11(a).
(b) Date
of Termination . “ Date of Termination ”
shall mean (i) if the Executive’s employment is
terminated by his death, the date of his death, (ii) if the
Executive’s employment is terminated pursuant to
Section 3(b), thirty (30) days after Notice of
Termination, provided that the Executive shall not have returned to
the performance of his duties hereunder on a full-time basis within
such thirty (30) day period, (iii) if the Executive
voluntarily terminates his employment, the date specified in the
notice given pursuant to Section 3(e) herein which shall not be
less than four (4) weeks after the Notice of Termination is
delivered to the Company, or such earlier date as the Company
elects to terminate Executive’s employment for Cause pursuant
to that section, (iv) if the Executive terminates his
employment for Good Reason pursuant to Section 3(f) herein, thirty
(30) days after Notice of Termination, and (v) if the
Executive’s employment is terminated for any other reason,
the date on which a Notice of Termination is given or any later
date (within thirty (30) days, or any alternative time period
agreed upon by the parties, after the giving of such notice) set
forth in such Notice of Termination.
5.
Termination Payments .
(a)
Without Cause . In the event of the termination of the
Executive’s employment during the Employment Period by the
Company without Cause, the Executive shall be entitled to:
(i) any accrued but unused vacation, (ii) Base Salary
through the Date of Termination (to the extent not theretofore
paid); and (iii) the continuation of Base Salary for twelve
(12) months following the Date of Termination, which shall be
paid in accordance with the Company’s ordinary payroll
practices in effect from time to time. In addition, in the event of
a termination by the Company without Cause: (1) if the
Executive elects to continue the Company’s group health plans
pursuant to his rights under COBRA, the Company shall pay the
Executive’s COBRA continuation premiums until the earlier of
(x) the date the Executive receives group health benefits from
another employer or (y) twelve (12) months after the Date of
Termination; and (2) (A) all unvested stock options, unvested
restricted stock units and any other unvested equity-based awards
or grants previously granted to the Executive shall become fully
vested and will be exercised or paid in accordance with the terms
of any applicable grant or award agreements and plans governing
such awards or
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Confidential
Communication
grants (and
this Agreement shall be deemed an amendment of all such applicable
grant or award agreements for the purpose of the accelerated
vesting provided f
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