Exhibit 10.4
EMPLOYMENT
AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this “ Agreement ”) is
made and entered into effective as of the 30th day of December,
2008 (the “ Effective Date ”), by and between
Miller Industries, Inc. , a corporation organized under the
laws of the State of Tennessee, USA (the “ Company
”), and J. Vincent Mish (the “ Executive
”).
WHEREAS,
Executive and the Company entered into an employment agreement (the
“ Original Agreement ”) in 2002, embodying the
terms of Executive’s employment and pursuant to which
Executive has been serving as Executive Vice President and Chief
Financial Officer of the Company; and
WHEREAS,
this Agreement amends and restates the Original Agreement as of the
Effective Date in order, inter alia, to evidence formal compliance
with Section 409A of the Internal Revenue Code of 1986, as amended,
and the guidance thereunder (such Section, referenced herein as
“ Section 409A ”; and such code, referenced
herein as the “ Code ”).
NOW,
THEREFORE, in consideration of the premises and mutual covenants
herein and for other good and valuable consideration, the parties
hereto agree as follows:
1.
Employment . Subject to the terms and conditions of
this Agreement, Executive shall be employed by the Company as
Executive Vice President and Chief Financial Officer of the
Company, and shall perform such duties and functions for the
Company and any company controlling, controlled by or under common
control with the Company (such companies hereinafter collectively
called “ Affiliates ”) as shall be specified
from time to time by the Chief Executive Officer (“
CEO ”) or the Board of Directors of the Company;
Executive hereby accepts such employment and agrees to perform such
executive duties as may be assigned to him.
2.
Duties . Executive shall devote his full business
related time and best efforts to accomplishing such executive
duties at such locations as may be requested by the CEO or Board of
Directors of the Company. While employed by the Company, Executive
shall not serve as a principal, partner, employee, officer or
director of, or consultant to, any other business or entity
conducting business for profit without the prior written approval
of the CEO of the Company. In addition, under no circumstances will
Executive have any financial interest in any competitor of the
Company; provided, however, that Executive may invest in no more
than 2% of the outstanding stock or securities of any competitor
whose stock or securities are traded on a national stock exchange
of any country.
3.
Term . The term of this Agreement shall commence on
the date hereof and shall end on the third annual
shareholders’ meeting at which directors are to be elected
following the Effective Date (the “ Term ”),
provided, however, beginning with the first annual
shareholders’ meeting at which directors are to be elected
following the Effective Date and each such annual
shareholders’ meeting thereafter, Executive’s
employment and the Term of this Agreement shall be extended
automatically (without further action by either the Company or the
Executive) for an additional period such that the Term of this
Agreement will end on the 3 rd anniversary of such shareholders’ meeting,
unless no later than 10 days following the date of such
shareholders’ meeting, the Company provides the Executive
with written notice that the Term of this Agreement is not being
extended. Notwithstanding the above, the Term of this Agreement
shall end on the Executive’s 65 th birthday.
4.
Compensation and Benefits . As compensation for his
services during the Term of this Agreement, Executive shall be paid
and receive the amounts and benefits set forth in subsections (a),
(b) and (c) below:
(a)
Base Salary . An annual base salary (“ Base
Salary ”) of $212,033 prorated for any partial year of
employment. Executive’s Base Salary shall be subject to
annual review, for adjustments at such time as the Company conducts
salary reviews for its executive officers generally.
Executive’s salary shall be payable in accordance with the
Company’s regular payroll practices in effect from time to
time for executive officers of the Company.
(b)
Bonus . In addition to the Base Salary, the Executive
shall be entitled to participate in any of the Company’s
present and future stock or cash based bonus plans that are
generally available to its executive officers, as such plans may
exist or be changed from time to time at the discretion of the
Company
(c)
Other Benefits . Executive shall be entitled to
vacation with pay, life insurance, health insurance, fringe
benefits, and such other employee benefits generally made available
by the Company to its executive officers, in accordance with the
established plans and policies of the Company, as in effect from
time to time.
5.
Termination .
(a)
By Executive . Executive may voluntarily terminate
his employment hereunder at any time, to be effective 60 days after
delivery to the Company of his signed, written resignation; Company
may accept said resignation and pay Executive in lieu of waiting
for passage of the notice period. Executive hereby agrees and
acknowledges that if he voluntarily resigns from his employment
prior to the end of the Term of this Agreement, then he shall be
entitled to no payment or compensation whatsoever from the Company
under this Agreement, other than as may be due him through his last
day of employment, including any vested benefits and any benefit
continuation or conversion rights which he may have in accordance
with the established plans and policies of the Company.
(b)
By Company . Subject to the terms of this Paragraph
and Paragraph 5(c) below, the Company may terminate
Executive’s employment hereunder, in its sole discretion,
whether with or without just cause (as defined in Paragraph
5(b)(viii) below and subject to the notice periods described
therein), at any time upon written notice to Executive. If the
Company terminates Executive’s employment for just cause (as
defined in (viii) below), Executive shall be entitled to no payment
or compensation whatsoever from the Company under this Agreement,
other than as may be due him through his last day of employment.
If, prior to the end of the Term of this Agreement, the Company
terminates Executive’s employment without just cause (as
defined in (viii) below), the Executive shall be entitled to
receive, as damages payable as a result of, and arising from, a
breach of this Agreement, the compensation and benefits set forth
in (i) through (iv) below, subject to the Executive’s
obligation to mitigate damages by reducing the amounts he is
entitled to receive hereunder by earnings from subsequent
employment as provided in (vii) below. The time periods in (i)
through (iii) below shall be the lesser of 36 months or the time
period remaining from the date of Executive’s termination to
the end of the Term of this Agreement (the “ Severance
Period ”). All compensation payable under (i) through
(iv) below shall be subject to the terms of Paragraph 8 below,
which may delay the payment of the compensation for up to 6
months.
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(i)
Base Salary . The Executive will continue to receive his
current Base Salary (subject to withholding of all applicable taxes
and any amounts referred to in paragraph (iii) below) for the
Severance Period, payable in normal payroll periods, in the same
manner as it was being paid as of the date of termination, and no
less frequently than monthly. For purposes hereof, the
Executive’s “current Base Salary” shall be the
highest rate in effect during the twelve-month period prior to the
Executive’s termination.
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(ii)
Bonus . The Executive shall be paid monthly bonus payments
from the Company in each month of the Severance Period beginning
with the month following the month in which his employment is
terminated in an amount for each such month equal to one-twelfth of
the average (“ Average Bonus ”) of the bonuses
earned by him for the three calendar years immediately preceding
the year in which such termination occurs. Any bonus amounts that
the Executive had previously earned from the Company but which may
not yet have been paid as of the date of termination shall not be
affected by this provision. Executive shall also receive, within 60
days after the date of his termination, a prorated bonus for any
uncompleted fiscal year at the date of termination equal to the
Average Bonus multiplied by the number of days he worked in such
year divided by 365 days.
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(iii)
Health and Life Insurance Coverage . The Company shall
provide Executive (and any spouse or dependents covered at the time
of the Executive’s termination) with medical, dental, life
insurance and other health benefits (pursuant to the same Company
Plans that are medical, dental, life insurance and other health
benefit plans and that are in effect for active employees of the
Company), for the Severance Period. The coverages provided for in
this paragraph shall be applied against and reduce the period for
which COBRA will be provided.
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(1)
To the extent that such medical, dental or other health benefit
plan coverage is provided under a self-insured plan maintained by
the Company (within the meaning of Section 105(h) of the
Code):
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(X) the
charge to Executive for each month of coverage will equal the
monthly COBRA charge established by the Company for such coverage
in which the Executive or the Executive’s spouse or
dependents (as applicable) are enrolled from time to time, based on
the coverage generally provided to salaried employees (less the
amount of any administrative charge typically assessed by the
Company as part of its COBRA charge), and Executive will be
required to pay such monthly charge in accordance with the
Company’s standard COBRA premium payment requirements;
and
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(Y) on
the date of Executive’s termination of employment (subject to
delay under Paragraph 8 below), the Company will pay Executive a
lump sum in cash equal to the number of months in the Severance
Period, multiplied by the monthly COBRA charge established by the
Company for the coverage being provided on Executive’s
termination date to the Executive and, if applicable, his spouse
and dependents. For this purpose, the Company’s monthly COBRA
charge will be increased by 10% on each January in the projected
payment period and such increased amount shall apply to each
successive month in the calendar year in which the increase became
applicable.
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