Exhibit 10.4
EMPLOYMENT AGREEMENT
EMPLOYMENT
AGREEMENT dated as of October 20, 2009, by and between NRDC
Acquisition Corp., a Delaware corporation (the
“Company”), and John Roche, residing at the address set
forth on the signature page hereof (the
“Executive”).
WHEREAS,
the Executive agrees to purchase common stock in the amount of up
to $2 million dollars, but in no event less than $500,000, at
market prices, prior to the record date (for the Special Meeting
for the stockholders’ and warrantholders of the Company
relating to the Framework Agreement (as defined below)), in
connection with the commencement of his employment with the
Company; and
WHEREAS,
the Company wishes to offer employment to the Executive, and the
Executive wishes to accept such offer on the terms set forth
below.
Accordingly,
in consideration of the mutual covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as
follows:
1.
Term . The Company hereby employs the Executive, and the
Executive hereby accepts such employment, for an initial term
commencing as of the date on which the transactions contemplated by
the Framework Agreement are consummated (the “Commencement
Date”) and continuing for a three-year (3) period, unless
sooner terminated in accordance with the provisions of Section 4 or
Section 5; with such employment to continue for successive one-year
(1) periods in accordance with the terms of this Agreement (subject
to termination as aforesaid) unless the Company notifies the
Executive of non-renewal in writing six (6) months prior to the
expiration of the initial term and each annual renewal, as
applicable (the period during which the Executive is employed
hereunder being hereinafter referred to as the “Term”).
As referenced herein, the “Framework Agreement” shall
mean that certain agreement by and between the Company and NRDC
Capital Management, LLC, dated as of August 7, 2009. For the
avoidance of doubt, the Agreement, other than Sections 7.9 and 7.15
which shall be operative as of the
date of execution of this
Agreement, shall not become effective and the Term shall not
commence unless and until the transactions contemplated by the
Framework Agreement are consummated, and the Executive begins
actually performing services for the Company within five (5)
business days thereafter.
2.
Duties . During the Term, the Executive shall be employed by
the Company as Chief Financial Officer, and, as such, the Executive
shall faithfully perform for the Company the duties of said office
and shall perform such other duties of an executive, managerial or
administrative nature as shall be specified and designated from
time to time by the Chief Executive Officer of the Company. The
Executive shall devote substantially all of his business time and
effort to the performance of his duties hereunder; provided,
however, that Executive may engage in other activities for
Executive’s own account while employed hereunder, including,
without limitation, charitable, community and other business
activities, provided that such other activities do not materially
interfere with the performance of Executive’s duties
hereunder.
3.
Compensation .
3.1
Salary .
(a)
Subject
to Section 3.1(b), the Company shall pay the Executive during the
Term a salary at the rate of $500,000 per annum, in accordance with
the customary payroll practices of the Company applicable to senior
executives. At least annually, the Board of Directors of the
Company (the “Board”) shall review the
Executive’s Annual Salary and may provide for increases
therein as it may in its discretion deem appropriate (such annual
salary, as increased, the “Annual Salary”). In
addition, the Executive shall receive a payment, within five (5)
business days of the Commencement Date, equal to a pro rata portion
of the amount of his Annual Salary that would have been payable for
the period beginning on September 17, 2009 and ending on the
Commencement Date had he been employed by the Company during such
period.
(b) Notwithstanding
the foregoing, in the event the value of the “trust
account” (as defined in the Framework Agreement) following
the consummation of the transactions contemplated by the Framework
Agreement is less than $410 million, without deduction for any
expenses incurred by the
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Company in connection with the
transactions contemplated by the Framework Agreement but after
deducting the following amounts, (i) any amounts paid to
stockholders with whom the Company entered into forward or other
contracts to purchase such stockholders’ shares, as issued in
the Company’s initial public offering on October 23, 2007
(including shares purchased in the secondary market), and (ii) any
amounts paid to the Company’s stockholders who vote against
the transactions contemplated by the Framework Agreement and demand
that the Company convert their shares into cash, the
Executive’s Annual Salary will be reduced pro-rata according
to the amount by which the $410 million threshold is not met;
provided, however, that the Executive’s Annual Salary will in
no event be reduced below $350,000. To the extent the Company later
raises additional gross capital up to the $400 million initial
target, the Executive’s Annual Salary will be increased
pro-rata up to a maximum of $500,000. The parties acknowledge that
as of August 31, 2009, there was $410,128,745 (or $409,402,665 net
of $726,080 of accrued but unpaid expenses) in the trust
account.
3.2
Bonus . During the Term, in addition to the Annual Salary,
for each fiscal year of the Company ending during the Term, the
Executive shall receive an annual bonus of between 0% and 200% of
Annual Salary, as determined in the sole discretion of the Board
and based on both the Executive’s performance and the
performance of the Company (the “Annual Bonus”). Each
Annual Bonus shall be paid in the fiscal year following the year
for which such bonus is awarded, and in any event shall be paid
within 30 days after the financial statements for such prior fiscal
year are finalized.
3.3
Benefits - In General . Except with respect to benefits of a
type otherwise provided for under Section 3.4, the Executive shall
be permitted during the Term to participate in any group life,
hospitalization or disability insurance plans, health programs,
equity incentive plans, retirement plans, fringe benefit programs
and similar benefits that may be available to other senior
executives of the Company generally, in each case to the extent
that the Executive is eligible under the terms of such plans or
programs.
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3.4
Specific Benefits . Without limiting the generality of
Section 3.3, the Executive shall be entitled to vacation of twenty
(20) business days per year (to be taken at reasonable times in
accordance with the Company’s policies) and an automobile
allowance of $1,500 per month.
3.5
Equity Incentive Compensation . As of the Commencement Date,
the Executive shall be granted an award consisting of 50,000 shares
of restricted stock and 50,000 stock options under the
Company’s Equity Incentive Plan. In accordance with the terms
of the Company’s Equity Incentive Plan, the exercise price of
such stock options shall be at fair market value of the shares of
the Company’s common stock on the date on which the options
are granted. The stock options and restricted stock shall each vest
in equal installments on the first three anniversaries of the grant
date thereof.
3.6
Expenses . The Company shall pay or reimburse the Executive
for all ordinary and reasonable out-of-pocket expenses actually
incurred (and, in the case of reimbursement, paid) by the Executive
during the Term in the performance of the Executive’s
services under this Agreement; provided that the Executive submits
proof of such expenses, with the properly completed forms as
prescribed from time to time by the Company in accordance with the
Company’s policies, plans and/or programs.
4.
Termination upon Death or Disability . If the Executive dies
during the Term, the Term shall terminate as of the date of death,
and the obligations of the Company to or with respect to the
Executive shall terminate in their entirety upon such date except
as otherwise provided under this Section 4. If there is a
determination by the Company that the Executive has become
physically or mentally incapable of performing his duties under the
Agreement and such disability has disabled the Executive for a
cumulative period of one hundred eighty (180) days within a twelve
(12) month period (a “Disability”), the Company shall
have the right, to the extent permitted by law, to terminate the
employment of the Executive upon notice in writing to the
Executive. Upon termination of employment due to death or
Disability, (i) the Executive (or the Executive’s estate or
beneficiaries in the case of the death of the Executive) shall be
entitled to receive, in a lump sum payment (subject to Section 7.17
of this Agreement) within thirty (30) days following
Executive’s termination of employment, (A) Annual Salary,
Annual Bonus and other benefits earned and accrued under this
Agreement prior to the date of termination (and
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reimbursement under this
Agreement for expenses incurred prior to the date of termination),
(B) (x) the Executive’s Annual Salary and (y) an amount equal
to the average of the Annual Bonuses awarded to the Executive for
the last two years immediately preceding the year in which
Executive’s employment is terminated, provided, however, that
if no Annual Bonus is awarded to Executive for the year (or two
years) preceding the year in which Executive’s employment is
terminated, Executive will be entitled to a minimum bonus equal to
50% of the Executive’s Annual Salary (i.e., initially
$250,000), and (C) the Executive’s car allowance for one (1)
year; (ii) all outstanding unvested equity-based incentives and
awards held by the Executive shall thereupon vest and become free
of restrictions and be exercisable in accordance with their terms;
and (iii) the Executive (or, in the case of his death, his estate
and beneficiaries) shall have no further rights to any other
compensation or benefits hereunder on or after the termination of
employment, or any other rights hereunder.
5.
Certain Terminations of Employment .
5.1
Termination by the Company for Cause; Termination by the
Executive without Good Reason .
(a) For
purposes of this Agreement, “Cause” shall mean the
Executive’s:
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(i) deliberate
misrepresentation in connection with, or willful failure to
cooperate with, a bona fide internal investigation or an
investigation by regulatory or law enforcement authorities, after
being instructed by the Company to cooperate, or the willful
destruction or failure to preserve documents or other materials
known to be relevant to such investigation or the willful
inducement of others to fail to cooperate or to produce documents
or other materials;
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(ii) failure
to perform his material duties hereunder (other than any such
failure resulting from Executive’s incapacity due to physical
or mental illness) which failure continues for a period of thirty
(30) business days after written demand for corrective action is
delivered by the Company specifically identifying the manner in
which the Company believes the Executive has not performed his
duties;
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(iii) conduct
by the Executive constituting a material act of willful misconduct
in connection with the performance of his duties, including,
without limitation, misappropriation of funds or property of the
Company other than the occasional, customary and de minimis use of
the Company’s property for personal purposes;
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(iv) public
disparagement of the Company, its officers, trustees, employees or
partners;
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(v) soliciting
any existing employee of the Company above the level of an
administrative assistant to work at another company; or
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(vi) the
commission by the Executive of a felony or misdemeanor involving
moral turpitude, deceit, dishonesty or fraud.
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provided that the Company shall
not be permitted to terminate the Executive for Cause except on
written notice given to the Executive at any time following the
occurrence of any of the events described in clause (i), (ii),
(iii) or (vi) above and on written notice given to the Executive at
any time not more than 30 days following the occurrence of any of
the events described in clause (iv) or (v) above (or, if later, the
Company’s knowledge thereof).
(b)
The
Company may terminate the Executive’s employment hereunder
for Cause, and the Executive may terminate his employment on at
least thirty (30) days’ written notice. If the Company
terminates the Executive for Cause, or the Executive terminates his
employment and the termination by the Executive is not covered by
Section 4, 5.2 or 5.3, (i) the Executive shall receive Annual
Salary, Annual Bonus for the preceding fiscal year (if unpaid), and
other benefits (but, in all events, and without increasing the
Executive’s rights under any other provision hereof,
excluding any bonuses not yet paid) earned and accrued under this
Agreement prior to the termination of employment (and reimbursement
under this Agreement for expenses incurred prior to the termination
of employment), and (ii) the Executive shall have no further rights
to any other compensation or benefits hereunder on or after the
termination of employment, or any other rights
hereunder.
5.2
Termination by the Company without Cause; Termination by the
Executive for Good Reason; Expiration/Non-Renewal of the Agreement
by the Company .
(a) For
purposes of this Agreement, “Good Reason” shall mean
the following, unless consented to by the Executive:
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(i) any
material breach of the employment agreement by the Company which
shall include, but not be limited to, a material, adverse
alteration in the nature of Executive’s duties,
responsibilities or authority;
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(ii) a
material reduction in Executive’s Annual Salary (other than
as provided in Section 3.1(b)) as in effect at the time in
question, or a failure to pay such amounts when due which is not
cured within thirty (30) days after written notice;
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(iii) if
the Company relocates Executive’s office to any place other
than Westchester County, New York or Manhattan (New York, New
York); or
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(iv) a
change in Executive’s direct reporting to anyone other than
the Chief Executive Officer of the Company.
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Notwithstanding the foregoing,
(i) Good Reason shall not be deemed to exist unless notice of
termination on account thereof is given no later than thirty (30)
days after the time at which the event or condition purportedly
giving rise to Good Reason first occurs or arises; and (ii) if
there exists (without regard to this clause (ii)) an event or
condition that constitutes Good Reason, the Company shall have
thirty (30) days from the date notice of such a termination is
given to cure such event or condition and, if the Company does so,
such event or condition shall not constitute Good Reason
hereunder.
(b) The
Company may terminate the Executive’s employment at any time
for any reason or no reason. The Executive may terminate the
Executive’s employment with the Company at any time for any
reason or no reason, and for Good Reason under this Section 5.2. If
the Company terminates the Executive’s employment and the
termination is not covered by Section 4, 5.1 or 5.3, or the
Executive terminates his employment for Good Reason and the
termination by the Executive is not covered by Section 5.3, or upon
expiration of the Term if the Company has notified the Executive of
non-renewal of this Agreement under Section 1, above, (i) the
Executive shall be entitled to receive, in a lump sum payment
(subject to Section 7.17 of this Agreement) within thirty
(
