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EMPLOYMENT AGREEMENT

Employment Agreement

EMPLOYMENT AGREEMENT | Document Parties: MOMENTIVE PERFORMANCE MATERIALS INC | JONATHAN RICH You are currently viewing:
This Employment Agreement involves

MOMENTIVE PERFORMANCE MATERIALS INC | JONATHAN RICH

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Title: EMPLOYMENT AGREEMENT
Governing Law: Delaware     Date: 9/14/2007
Law Firm: Wachtell Lipton    

EMPLOYMENT AGREEMENT, Parties: momentive performance materials inc , jonathan rich
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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:

 

  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.

 

  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).

 

  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.

 

  Section 4. Obligations of the Company upon Termination .

(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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