Exhibit 10.1
EMPLOYMENT
AGREEMENT
This
EMPLOYMENT AGREEMENT (this “Agreement”), dated
as of December 30, 2008, is made and entered into by and between
MILLER INDUSTRIES, INC. , a Tennessee corporation (the
“Company”), and WILLIAM G. MILLER (the
“Employee”).
W
I T N
E S S E T H
:
WHEREAS , Employee and the Company entered into an
employment agreement (the “Original Agreement”) as of
July 8, 1997, embodying the terms of Employee’s employment
and pursuant to which Employee has been serving as Chairman of the
Board of Directors 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 these premises, and of the mutual covenants and
agreements hereinafter set forth, the parties agree as
follows:
1.
Term . Employee’s employment under
this Agreement shall commence on the date hereof and shall continue
until terminated in accordance with the provisions of Section
4 below (the “Employment Period”).
2.1 During
the Employment Period, for all services rendered by the Employee
under this Agreement, the Company shall pay the Employee a base
salary per annum (the “Base Salary”) that shall be
agreed to by the Company and the Employee from time to time, but
which shall in any event be substantially the same as the base
salary of the Co-Chief Executive Officer of the Company or the
Chief Executive Officer of the Company if other than Employee,
payable in accordance with the customary payroll policy of the
Company in effect at the time such payment is made.
2.2 In
addition to the Base Salary, the Employee 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
senior executives, as such plans may exist or be changed from time
to time at the discretion of the Company.
2.3 The
Employee shall be entitled to such vacation time, fringe benefits,
insurance coverage, and other benefits as the Company generally
provides to its executive officers from time to time.
3.
Duties . The Employee shall serve the
Company as its Chairman of the Board (“Chairman”) and
as its Co-Chief Executive Officer (“CCEO”) (the
Employee may cease serving as the CCEO at his discretion without
terminating or otherwise affecting this Agreement). As
Chairman and CCEO, the duties of the Employee shall include but not
be limited to the supervision of the business affairs of the
Company and such other duties as are customarily performed by
comparably situated officers and as may be assigned from time to
time by the Company’s Board of Directors (the
“Board”). During the term of this Agreement,
the Employee shall devote his primary time, attention and skill to
his duties hereunder; faithfully and diligently perform such duties
and exercise such powers as may be from time to time assigned to or
vested in him by the Board; obey the directions of the Board; and
use his best efforts to promote the interests of the
Company. The Company acknowledges, however, that the
Employee may pursue other business related interests so long as
they do not interfere with the performance of Employee’s
duties for the Company. The Employee may be required in
pursuance of his duties hereunder, to perform services for any
company controlling, controlled by or under common control with the
Company (such companies hereinafter collectively called
“Affiliates”) for some period of time and from time to
time. The Employee shall obey all policies of the
Affiliates.
4.
Termination . Unless terminated in
accordance with the following provisions to this Section 4 ,
the Company shall continue to employ the Employee and the Employee
shall continue to work for the Company, during the Employment
Period.
4.1 The
Company may terminate the Employee’s employment at any time
for Cause . “Cause” shall mean (i)
willful malfeasance or gross negligence or (ii) knowingly engaging
in wrongful conduct resulting in detriment to the good will of the
Company or damage to the Company’s relationships with its
customers, suppliers or employees. Upon termination
pursuant to this Section 4.1 , the Company shall pay the
Employee any salary earned and unpaid to the date of termination,
and any outstanding funds advanced by the Company to or on behalf
of the Employee shall become immediately due and
payable.
4.2 In
the event the Employee dies or becomes mentally or physically
handicapped or disabled so as to be unable to perform his duties
during the Employment Period, this Agreement shall automatically
terminate with no further liability on the part of the
Company.
4.3 This
Agreement may be terminated by either party
upon three (3) years prior written notice of
termination, with or without Cause. If the Company breaches this
Agreement by terminating Employee’s employment without Cause
without notice or prior to the end of the three-year notice period,
the Employee 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 (a) through (c)
below. All compensation payable under (a) through (c)
below shall be subject to the terms of Section 8.10, which may
delay the payment of the compensation for up to 6
months.
(a)
Base Salary . The Employee will continue to
receive his current Base Salary (subject to withholding of all
applicable taxes) through the end of the thirty-six-month notice
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
Employee’s “current Base Salary” shall be the
highest rate in effect during the twelve-month period prior to the
Employee's termination.
(b)
Bonus . The Employee shall be paid bonus payments
from the Company in each month beginning with the month following
the month in which his employment is terminated and ending with the
month in which falls the last day of the thirty-six month notice
period, 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 Employee 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. Employee 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.
(c)
Health and Life Insurance Coverage . The Company
shall provide Employee (and any spouse or dependents covered at the
time of the Employee’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 remainder of the thirty-six (36) month notice
period following the date of Employee’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.
(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):
(X) the
charge to Employee for each month of coverage will equal the
monthly COBRA charge established by the Company for such coverage
in which the Employee or the Employee’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 Employee will be required to pay
such monthly charge in accordance with the Company’s standard
COBRA premium payment requirements; and
(Y) on
the date of Employee’s termination of employment (subject to
delay under Paragraph 8 below), the Company will pay Employee a
lump sum in cash equal, in the aggregate, to the monthly COBRA
charge established by the Company for the coverage being provided
on Employee’s termination date to the Employee and, if
applicable, his spouse and dependents, for each month of coverage
in the 36-month period. 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.
(2) &
