Exhibit 10.2
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 Jeffrey I. Badgley (the “
Executive ”).
WHEREAS,
Executive and the Company entered into an employment agreement (the
“ Original Agreement ”) as of September, 1998,
embodying the terms of Executive’s employment and pursuant to
which Executive has been serving as President and Co-Chief
Executive 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
President and Co-Chief Executive Officer, 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 Chairman of
the Board; 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 Chairman of the
Board 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 Chairman of the Board 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 be for a
rolling, three (3) year term commencing on the date hereof, and
shall be deemed automatically (without further action by either the
Company or the Executive) to extend each day for an additional day
such that the remaining term of the Agreement shall continue to be
three (3) years; provided, however, that on Executive’s
62 nd
birthday this Agreement shall cease
to extend automatically and, on such date, the remaining
“term” of this Agreement shall be three (3) years;
provided, further, that the Company may, by notice to the
Executive, cause this Agreement to cease to extend automatically
and, upon such notice, the “ Term ” of this
Agreement shall be three (3) years following such
notice.
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 $312,033 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.
(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. Except to the extent provided in (vii) below, Executive
shall not be required to mitigate damages by reducing the amounts
he is entitled to receive hereunder by earnings from subsequent
employment. The time periods in (i) through (iii) below shall be
the lesser of the 36-month period stated therein or the time period
remaining from the date of Executive’s termination to the end
of the Term of this Agreement. 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 salary (subject to withholding of all applicable taxes and
any amounts referred to in paragraph (iii) below) for a period of
thirty-six (36) months from his date of termination, 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
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 bonus payments from the
Company in each of the thirty-six (36) months 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 thirty-six (36) months following the date of
Executive’s termination of employment. 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, in the aggregate, to
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
each month of coverage in the 36-month period. For this purpose,
the Company’s
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