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Exhibit
10.15
EMPLOYMENT AGREEMENT
(this “ Agreement ”) dated as of June 1,
2007, between MOMENTIVE PERFORMANCE MATERIALS INC. , a
Delaware corporation (the “ Company ”) and
JONATHAN RICH (the “ Executive
”).
WHEREAS , the Company
desires to employ the Executive and the Executive desires to be
employed by the Company effective as of June 8th, 2007 or such
earlier or later date as the Company’s Chief Executive
Officer as of the date noted above ceases to be in such position
(but no later than July 8 th ,
2007) (such date, the “ Effective Date
”);
NOW THEREFORE , in
consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
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Section 1. |
Employment Period . |
The initial term of the
Executive’s employment will commence on the Effective Date,
and end on the fifth anniversary of the Effective Date (the “
Initial Employment Period ”), unless terminated
earlier pursuant to Section 3 of this Agreement; provided,
however, that as of the expiration date of each of (i) the
Initial Employment Period and (ii) if applicable, any Renewal
Period (as defined below), the Employment Period will automatically
be extended for a one-year period (each, a “ Renewal
Period ”), unless either party gives at least ninety
(90) days written notice prior to such expiration date of its
intention not to renew the Employment Period (the Initial
Employment Period and each subsequent Renewal Period shall
constitute the “ Employment Period ”). A notice
of nonrenewal by the Company shall be treated as termination
without Cause as of the end of the then-applicable Employment
Period. The Employment Period shall automatically end upon
termination of the Executive’s employment for any reason.
Upon the Executive’s termination of employment with the
Company for any reason, he shall immediately resign all positions
(including directorships) with the Company or any of its
subsidiaries or affiliates.
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Section 2. |
Terms of Employment . |
(a) Position . During
the Employment Period, the Executive shall serve as the Chief
Executive Officer of the Company and perform such duties and
responsibilities customary to such position. The Executive shall
report to the Board of Directors of the Company (the “
Board ”). The Executive shall also serve as a member
of the Board and as a member of the Board of Directors of Momentive
Performance Holdings Corp. (the “ Parent ” and
such Board of Directors, the “ Parent Board ”).
At the request of the Company, the Executive shall also serve as an
officer of any of its subsidiaries or affiliates without additional
compensation. In the event that the Parent becomes an entity whose
common stock is publicly traded or an operating company, the
Executive shall also be chief executive officer of
Parent.
(b) Duties . During
the Employment Period, the Executive agrees to devote substantially
all of his business time and efforts to the business and affairs of
the Company. Notwithstanding the foregoing, nothing herein shall
prohibit the Executive from (i) serving on civic or charitable
boards or committees, (ii) delivering lectures or fulfilling
speaking engagements and (iii) managing personal investments,
so long as such activities do not interfere with the performance of
the Executive’s responsibilities hereunder. With the consent
of the board, Executive may serve on the Board of for profit
entities.
(c) Compensation
.
(i) Base Salary .
During the Employment Period, the Executive shall receive an
initial annual base salary in an amount equal to $650,000 (as may
be increased from time to time, the “ Annual Base
Salary ”), which shall be paid in accordance with the
customary payroll practices of the Company (but no less
infrequently than in equal monthly installments). The Base Salary
will be reviewed by the Board or the Compensation Committee of the
Board (the “ Compensation Committee ”) or its
designee annually for increase (but not for decrease). The Base
Salary, as then increased, will be the “Base Salary”
for all purposes of this Employment Agreement.
(ii) Bonuses . During
the Employment Period, the Company shall establish an annual bonus
plan for each fiscal year of the Company (the “ Plan
”) pursuant to which the Executive will be eligible to
receive a target annual bonus in an amount equal to 100 percent of
the Annual Base Salary (the “ Bonus ”), which
Bonus may be higher or lower than this percentage based on actual
performance. With respect to the Company’s 2007 fiscal year,
the Executive will be entitled to receive a Bonus on a pro-rated
basis equal to the product of (x) the Bonus which otherwise
would have been earned by Executive for the Company’s 2007
fiscal year absent pro-ration, times (y) a fraction, the
numerator of which is the number of days in the Company’s
2007 fiscal year from and after the Effective Date, and the
denominator of which is 365; provided that such Bonus shall in no
event be less than 50 percent of the Base Salary earned by the
Executive for the Company’s 2007 fiscal year. The Board or
the Compensation Committee will administer the Plan and establish
performance objectives for each year. The Executive’s Bonus
will be determined based on the achievement of such performance
objectives for the applicable year (the majority of which will be
based on quantitative objectives, with a small portion to be based
on qualitative objectives), provided that the Board and/or the
Compensation Committee may provide discretionary bonuses to the
Executive under the Plan. Unless the Executive is employed on the
last day of the applicable performance period, the Executive will
not be entitled to receive the Bonus upon the Company’s
achievement of the specified performance objectives (subject to
Section 4 of this Agreement). Except as provided for in
Section 4 of this Agreement, the Bonus shall be paid on or
prior to March 15 following the end of the applicable fiscal
year provided that the Board or Compensation Committee finally
determines (x) that the Company has achieved the applicable
performance objectives and (y) the amount of Bonus that shall
be paid to the Executive for the applicable Plan year.
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(iii) Benefits .
During the Employment Period, the Executive shall be entitled to
participate in employee benefit plans generally made available to
senior executives of the Company.
(iv) Expenses . During
the Employment Period, the Executive shall be entitled to receive
reimbursement for all reasonable expenses incurred by the Executive
in performance of his duties hereunder provided that the Executive
provides all necessary documentation in accordance with Company
policy. The Company, upon receipt of proper documentation, will
reimburse the Executive for (i) all reasonable relocation
expenses (including without limitation expenses of movers, storage
companies, travel and lodging expenses to find new housing and
other related moving expenses, including any costs associated with
the Executive’s initial purchase of a primary residence after
the Effective Date (e.g., broker’s commissions or taxes), but
excluding any costs associated with the sale or rental of the
Executive’s existing primary residence (e.g., broker’s
commissions or taxes)) incurred in moving from the
Executive’s current residence to Connecticut (and any
subsequent move required of the Executive by the Company) and
(ii) up to six months’ of reasonable rental housing and
related expenses in Connecticut. Notwithstanding the foregoing, in
the event that the Executive’s employment with the Company
terminates prior to the six-month anniversary of the Effective Date
due to a termination by the Company for Cause or by the Executive
without Good Reason, the Executive shall repay the Company all
relocation expenses previously reimbursed by the Company pursuant
to this Section 2(c)(iv), and shall have no further
entitlement to any reimbursements pursuant to this
Section 2(c)(iv).
(v) Vacation and
Holidays . During the Employment Period, the Executive shall be
entitled to five weeks per annum of paid vacation.
(vi) Stock Options .
The Executive and the Company acknowledge that the Parent has
granted the Executive stock options (the “ Executive
Options ”) to purchase 75,000 shares of common stock of
the Parent (the “ Common Stock ”) at an exercise
price of $100.00 per share pursuant to the terms and conditions set
forth in the Momentive Performance Materials Holdings Inc. 2007
Long-Term Incentive Plan (the “ Long-Term Incentive
Plan ”). The Executive Options shall be subject to the
terms of the Long-Term Incentive Plan and the Executive’s
Non-Qualified Stock Option Agreement (attached hereto as Exhibit
A).
(vii) Investment . On
the Effective Date, the Executive shall purchase 25,000 shares of
common stock of the Parent, par value $0.01, at a price of $100.00
per share (the “ Purchased Shares ”). The
Purchased Shares shall be subject to the terms of the Long-Term
Incentive Plan and the Executive’s Subscription Agreement
(attached hereto as Exhibit B).
(viii) Notwithstanding
anything to the contrary herein, all of the Purchased Shares will
be fully vested at the Effective Date and all Purchased Shares and,
all Executive Options and Common Stock held by the Executive
pursuant to the exercise of the Executive Options will be subject
to the terms and conditions of the
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Securityholders Agreement by and among
the Parent, the Executive, and other signatories thereto (the
“ Securityholders Agreement ”) (attached hereto
as Exhibit C).
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Section 3. |
Termination of Employment . |
(a) Death or
Disability . The Executive’s employment shall terminate
automatically upon the Executive’s death. If the Executive
becomes subject to a Disability during the Employment Period
(pursuant to the definition of Disability set forth below), the
Company may give the Executive written notice in accordance with
Sections 3(e) and 10(h) of its intention to terminate the
Executive’s employment. For purposes of this Agreement,
“ Disability ” means (i) the
Executive’s inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than 12
months, or (ii) the Executive is, by reason of any medically
determinable physical or mental impairment which can be expected to
last for a continuous period of not less than 12 months, receiving
income replacement benefits for a period of not less than three
months under an accident, disability or health plan covering
employees of the Company. Whether the Executive has incurred a
“Disability” shall be determined by a physician
selected by the Company or its insurers, which physician is
reasonably acceptable to the Executive (or the Executive’s
legal representative).
(b) Cause . The
Executive’s employment may be terminated at any time by the
Company for Cause. For purposes of this Agreement,
“Cause” shall mean (i) the Executive’s
indictment, conviction or pleading of guilty or nolo contendere to
a felony or a crime of moral turpitude; (ii) the
Executive’s willful commission of a material act of
dishonesty involving the Company or any of its affiliates or
subsidiaries (collectively, the “ Affiliated Entities
” and each such entity, an “ Affiliated Entity
”); (iii) the Executive’s material breach of his
obligations hereunder or any other agreement entered into between
the Executive and the Company or any of the Affiliated Entities;
(iv) the Executive’s willful failure to perform his
material duties; (v) the Executive’s material breach of
the Company’s policies or procedures; or (vi) any other
willful misconduct by the Executive which causes material harm to
the Company or any of the Affiliated Entities or their business
reputations, including due to any adverse publicity. A termination
will not be for “Cause” under (iii), (iv), (v) or
(vi) above unless the Company shall have given the Executive
30 days’ prior written notice describing the alleged
action(s) and then only if the Executive has not cured such actions
(provided that, in the event such breach is not curable, no notice
period shall be required).
(c) Termination Without
Cause . The Company may terminate the Executive’s
employment hereunder without Cause at any time upon thirty
(30) days prior written notice.
(d) Good Reason . The
Executive’s employment may be terminated at any time by the
Executive for Good Reason or without Good Reason upon thirty
(30) days prior written notice. For purposes of this
Agreement, “Good Reason” means voluntary resignation
after any of the following actions are taken by the
Company
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or any of its Affiliated Entities
without the Executive’s consent: (i) a reduction in the
Executive’s Annual Base Salary or Bonus potential described
in Section 2(c)(ii) of this Agreement (but not including any
diminution relating to an across-the-board compensation reduction
applying to senior management of the Company generally);
(ii) a reduction or adverse change in the Executive’s
title, duties, responsibilities or reporting relationship to the
Board (provided, however, that the Company’s appointment
and/or election of a non-executive Chairman shall not constitute
Good Reason), which for these purposes shall not include the
failure to maintain the Executive as an officer of the Parent or a
member of the Parent Board in the event that (x) the Company
or any successor to the Company ceases to be owned by the Parent or
any successor to the Parent or (y) the Parent or any successor
to the Parent ceases to exist whether by merger or otherwise,
provided that the Executive remains the chief executive officer of
the most senior operating company and any parent publicly-traded
company and reports directly to the Board; or (iii) any other
material breach by the Company of this Agreement. A termination
will not be for “Good Reason” under this
Section 3(d) unless the Executive shall have given the Company
thirty (30) days’ prior written notice describing the
alleged action(s) and then only if the Company has not cured such
actions within thirty (30) days after the Company’s
receipt of such written notice.
(e) Voluntarily Without
Good Reason . The Executive may terminate his employment
hereunder at any time without Good Reason upon thirty
(30) days’ prior written notice.
(f) Notice of
Termination . Any termination by the Company for Cause or
without Cause, or by the Executive for Good Reason or without Good
Reason, shall be communicated by Notice of Termination to the other
party hereto given in accordance with Section 10(h) of this
Agreement. For purposes of this Agreement, a “Notice of
Termination” means a written notice which (i) indicates
the specific termination provision in this Agreement relied upon,
(ii) to the extent applicable, sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of the Executive’s employment under the provision
so indicated and (iii) if the Date of Termination (as defined
below) is other than the date of receipt of such notice, specifies
the termination date. The failure by the Executive or the Company
to set forth in the Notice of Termination any fact or circumstance
which contributes to a showing of Good Reason or Cause shall not
waive any right of the Executive or the Company hereunder or
preclude the Executive or the Company from asserting such fact or
circumstance in enforcing the Executive’s or the
Company’s rights hereunder, provided that the Company may not
treat the Executive as terminated for Cause unless the notice of
termination cites any applicable Cause event and gives the
Executive the opportunity to cure (subject to the terms of the
Cause definition).
(g) Date of
Termination . “ Date of Termination ” means
(i) if the Executive’s employment is terminated by the
Company for Cause, without Cause or by reason of Disability, or by
the Executive for Good Reason or without Good Reason, the date of
receipt of the Notice of Termination or any later date specified
therein pursuant to Section 3(e), as the case may be and
(ii) if the Executive’s employment is terminated by
reason of death, the date of death.
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(h) No Mitigation. No
Offset . The Executive shall have no obligation to mitigate any
amounts due hereunder and the amount due hereunder shall not be
offset by amounts earned from future employers.
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Section 4. |
Obligations of the Company upon Termination
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(a) With Good Reason;
Other Than for Cause . If during the Employment Period, the
Company shall terminate the Executive’s employment other than
for Cause or the Executive shall terminate his employment for Good
Reason, then the Company will provide the Executive with the
following severance payments and/or benefits:
(i) The Company shall pay to
the Executive (x) in a lump sum (1) the Annual Base
Salary through the Date of Termination to the extent not
theretofore paid, (2) any accrued but unused vacation, and
(3) any incurred but unreimbursed expenses; (y) when
bonuses are otherwise paid in accordance with the Bonus Plan, to
the extent not previously paid, the Bonus earned for any year prior
to the year in which the Date of Termination occurs, to the extent
that the Executive is employed on the last day of the applicable
performance period and such Bonus shall be paid in accordance with
the terms of the Plan; and (z) any amounts due under any
benefit plan, program or practice or any payroll practice (the
“ Accrued Obligations ”);
(ii) Starting as of the next
applicable Company payroll date after the Date of Termination
(provided that the Executive has complied with Section 4(f) of
this Agreement), the Company will pay the Executive a monthly
amount equal to his Annual Base Salary, divided by 12, until the
earlier of (A) the end of the 18 th month following the Date of Termina
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