This Employment
Agreement (the “ Agreement ”) is made and
entered into by and between Eli Porat (“
Employee ”) and Tvia, Inc. (the “
Company ”), effective as of October 13, 2008
(the “ Effective Date ”).
WHEREAS ,
Employee is currently employed by the Company;
WHEREAS ,
the Company and Employee wish amend and restate in written form
Employee’s current terms of employment with the
Company;
WHEREAS ,
the Company and the Employee previously entered into an Executive
Severance Agreement dated November 20, 2001 (the “
Severance Agreement ”);
WHEREAS ,
in lieu of the benefits provided under the Severance Agreement, the
Company wishes to provide Employee with a cash incentive to remain
employed with the Company; and
WHEREAS ,
subject to the valid execution of this Agreement, Employee and the
Company agree to terminate the Severance Agreement in accordance
with Section 9(b) of the Severance Agreement and that neither the
Company nor Employee shall have any rights or obligation under the
Severance Agreement on or after the Effective Date.
NOW,
THEREFORE , in consideration of the mutual covenants herein
contained, and in consideration of the continuing employment of
Employee by the Company, the parties agree as follows:
1.
Recitals . All of the above recitals are hereby incorporated
into this Agreement by reference as though set forth verbatim
herein.
2.
Termination of Severance Agreement . Pursuant to Section
9(b) of the Severance Agreement, and subject to the valid execution
of this Agreement, the Company and Employee hereby agree that this
Agreement constitutes an effective termination of the Severance
Agreement and all of the Company’s and Employee’s
respective rights and obligations thereunder.
3. Title
and Cash Compensation . Employee’s title is, and shall
remain, Chief Executive Officer. As of the Effective Date,
Employee’s monthly base salary is $20,000 per month or
$240,000 on an annualized basis.
4. Equity
Awards . The Company and Employee acknowledge that Employee may
have received certain equity awards prior to the date hereof. Any
such awards that are outstanding as of the date hereof shall remain
outstanding and subject to the Company’s applicable equity
compensation plan and award agreement, and shall be unaffected by
this Agreement.
5. Other
Benefits . Employee will continue to be eligible to receive the
Company’s standard employee benefits.
6.
Retention Bonus . In addition to the benefits provided under
Sections 3 through 5 of this Agreement, Employee is eligible
to receive a retention bonus equal to $180,000 (the “
Retention Bonus ”). Employee’s Retention
Bonus shall be payable in twelve (12) equal monthly
installments of $15,000 (each an “ Installment
Payment ”). The first Installment Payment will be
made on the first regular payroll date following the first
(1 st
) monthly anniversary of the
Effective Date and the remaining Installment Payments will be made
on the like payroll date of each month thereafter for the next
eleven (11) months (each a “ Payment Date
”), subject to Employee’s continued employment with the
Company through each Payment Date. If the Payment Date falls on a
day of the month that does not exist for a particular month, the
Payment Date for such month will be the last day of the month. The
Company has sole discretion to determine if Employee has satisfied
the requirements of this Section 3. Each Installment Payment
(if any) shall be paid within thirty (30) days following the
Payment Date.
7.
Termination for other than Cause or Good Reason . If, during
the twelve (12) month period immediately following a Liquidity
Event (as defined in the Tvia, Inc. Transaction Bonus Plan), the
Company terminates the employment of Employee without Cause (as
defined below) or Employee terminates employment for Good Reason
(as defined below) prior to payment of all Installment Payments,
the Company shall accelerate payment of the remaining unpaid
Installment Payments. In such case, the Company will make a single
lump payment to Employee in an amount equal to the total value of
the remaining unpaid Installment Payment within thirty
(30) days of Employee’s termination of
employment.
8. Other
Termination . If Employee’s employment with the Company
terminates for Cause, death or disability, or voluntarily by
Employee other than for Good Reason, Employee shall not be entitled
to receive any Installment Payments after the date of
Employee’s termination of employment.
9.
Cause . For purposes of this Agreem
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