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Exhibit
10.43
EMPLOYMENT
AGREEMENT
This EMPLOYMENT AGREEMENT
(the “Agreement”) is entered into as of the 25th day of
October, 2006 (the “Effective Date”) by and between
MEMC Electronic Materials Inc., a Delaware corporation (the
“Company”), and Nabeel Gareeb
(“Executive”).
WITNESSETH:
WHEREAS, the Company desires
to continue to employ Executive as an executive officer of the
Company and Executive desires to continue to be employed by the
Company on the terms and conditions set forth herein;
NOW, THEREFORE, in
consideration of the premises and the mutual covenants and promises
contained herein and for other good and valuable consideration, the
Company and Executive hereby agree as follows:
1. Term; Position and
Responsibilities . Unless Executive’s employment shall
sooner terminate pursuant to Section 4 hereof, the Company
shall employ Executive on the terms and subject to the conditions
of this Agreement for the term commencing on the Effective Date and
ending on December 31, 2010, provided that the term
shall be automatically renewed for successive one-year terms
following the expiration of the initial term described above (the
initial term and each additional one-year term each, a “
Term ”), unless either party provides the other party
with notice pursuant to Section 9(f) at least sixty
(60) calendar days before the expiration of the applicable
Term of its (or his) intention not to renew such Term, in which
case the Executive’s employment shall terminate at the end of
such Term. The entire period during which Executive is employed by
the Company pursuant to this Agreement shall be referred to as the
“ Employment Period. ” During the Employment
Period, Executive shall serve as Chief Executive Officer and
President of the Company and shall have such duties and
responsibilities as are customarily assigned to individuals serving
in such positions and such other duties as the Company specifies
from time to time. During the Employment Period, the Company will
also cause the Board of Directors of the Company (the
“Board”) to nominate Executive for re-election to the
Board when his term expires. Executive shall comply with all
policies and procedures of the Company. Executive shall devote all
of his skill, knowledge, commercial efforts and working time to the
conscientious and faithful performance of his duties and
responsibilities for the Company (except for (i) vacation time
as set forth in Section 3(b) hereof and absence for sickness
or similar disability and (ii) to the extent that it does not
interfere with the performance of Executive’s duties
hereunder, (A) such reasonable time as may be devoted to the
fulfillment of Executive’s civic responsibilities,
(B) such reasonable time as may be necessary from time to time
for personal financial matters and (C) certain other
activities with the prior written consent of the Board.
2. Compensation
.
(a) Base Salary . As
compensation for the services to be performed by Executive during
the Employment Period, the Company shall pay Executive a base
salary at an
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annualized rate of $850,000, payable in
installments on the Company’s regular payroll dates.
Executive’s base salary shall be reviewed annually by the
Board and may be adjusted upwards by the Board, in its sole
discretion. The annual base salary payable to Executive under this
Section 2(a) shall hereinafter be referred to as the “
Base Salary .”
(b) Annual Bonus .
During the Employment Period, Executive shall have the opportunity
to earn an annual bonus (an “ Annual Bonus ”) in
respect of each calendar year in accordance with this
Section 2(b) and pursuant to the terms of the Company’s
Annual Incentive Plan then existing for such calendar year;
provided, however, that, except as may be provided in
Section 4(f) hereof, the Annual Bonus for any calendar year
shall be payable to Executive only if Executive is employed by the
Company on December 31 of such year. In respect of calendar
year 2007 and thereafter, Executive will have a target bonus of
100% of Executive’s Base Salary and a maximum bonus of 200%
of Executive’s Base Salary. Any Annual Bonus that becomes
payable to Executive shall be payable in the form of cash. The
amount of any Annual Bonus and all other terms and conditions
related thereto (including without limitation any performance
criteria) shall be determined by the Board, in its sole
discretion.
(c) Stock Options
.
(i) Prior Grants . The
Executive was granted certain awards prior to the Effective Date
(the “ Prior Grants ”). The Prior Grants shall
continue in accordance with their terms as amended from time to
time, including the amendment of the “Service Option”
to comply with Section 409A of the Internal Revenue Code of
1986, as amended (the “ Code ”).
(ii) Annual Grant .
For any calendar year during the Employment Period, the Board in
its discretion may make an award to Executive under the
Company’s 2001 Equity Plan or any successor plan thereto. The
size and vesting of any such award shall be in the discretion of
the Board. Notwithstanding the foregoing, in connection with stock
option grants to be provided to the Executive simultaneously with
the execution of this Agreement, Executive understands that the
Company does not intend to grant him any stock options for the
first four years of the Employment Period.
3. Employee Benefits and
Perquisites .
(a) Participation in
Employee Benefit Plans . During the Employment Period,
Executive shall be eligible to participate in the employee benefit
plans and programs maintained by the Company from time to time and
generally available to the senior executives of the Company
including to the extent maintained by the Company life, medical,
dental, accidental and disability insurance plans and profit
sharing, pension, retirement, deferred compensation and savings
plans, in accordance with the terms and conditions thereof as in
effect from time to time.
(b) Vacation . During
the Employment Period, Executive shall be entitled to the same
amount of annual vacation that is generally available to the senior
executives of the Company, as may be increased from time to time
consistent with the Company’s past practices.
4. Termination of
Employment . Executive’s employment may be terminated
prior to the end of the Term specified in Section 1 hereof as
follows:
(a) Termination Due to
Death or Disability . Executive’s employment may be
terminated by the Company due to Executive’s Disability (as
defined below). In the event that Executive’s employment
hereunder terminates due to his death or is terminated by the
Company due to Executive’s Disability, no termination
benefits shall be payable to or in respect of Executive except as
provided in Section 4(f)(ii). For purposes of this Agreement,
“ Disability ” shall mean a physical or mental
condition entitling Executive to benefits under the long-term
disability policy maintained by the Company, as such policy may be
amended from time to time. Executive’s employment shall be
deemed to have terminated as a result of Disability on the date as
of which he is first entitled to receive disability benefits under
such policy.
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(b) Termination by the
Company for Cause . Executive’s employment may be
terminated by the Company for Cause (as defined below). In the
event of a termination of Executive’s employment by the
Company for Cause, no termination benefits shall be payable to or
in respect of Executive except as provided in
Section 4(f)(ii). For purposes of this Agreement, “
Cause ” shall mean (i) the failure of Executive
to make a good faith effort to substantially perform his duties
hereunder (other than any such failure due to Executive’s
Disability) or Executive’s insubordination with respect to a
specific resolution of the Board; (ii) Executive’s
dishonesty, gross negligence in the performance of his duties
hereunder or engaging in willful misconduct, but only if such
action or omission has caused or is reasonably expected to result
in direct or indirect material injury to the Company or any of its
Affiliates (as defined below); (iii) breach by Executive of
any material provision of this Agreement or of any other written
agreement with the Company or any of its Affiliates or material
violation of any Company policy applicable to Executive; or
(iv) Executive’s indictment for a crime that constitutes
a felony or other crime of moral turpitude or fraud that reasonably
could impair Executive’s ability to satisfactorily perform
his duties hereunder. If, subsequent to Executive’s
termination of employment hereunder for other than Cause, it is
determined in good faith by the Company that Executive’s
employment could have been terminated for Cause hereunder,
Executive’s employment shall, at the election of the Company,
be deemed to have been terminated for Cause retroactively to the
date the events giving rise to Cause occurred. Notwithstanding the
foregoing, a failure, insubordination or breach described in items
(i) and (iii) shall not constitute Cause unless the
Company shall have first given Executive written notice describing
the failure, insubordination or breach and a reasonable
opportunity, not to exceed ten (10) days, to cure such
failure, insubordination or breach.
(c) Termination Without
Cause . Executive’s employment may be terminated by the
Company Without Cause (as defined below). In the event of a
termination of Executive’s employment by the Company Without
Cause, no termination benefits shall be payable to or in respect of
Executive except as provided in Section 4(f)(i). A termination
“ Without Cause ” shall mean a termination of
Executive’s employment by the Company during the Term
specified in Section 1 hereof other than due to
Executive’s death, Disability or for Cause.
(d) Termination by
Executive . In the event that Executive terminates his
employment for Good Reason (as defined below), Executive shall be
entitled to the termination benefits described in
Section 4(f)(i). In the event that Executive terminates his
employment Without Good Reason (as defined below), no termination
benefits shall be payable to or in respect of Executive except as
provided in Section 4(f)(ii). A termination of employment
by
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Executive for “ Good Reason
” shall mean a termination by Executive of his employment
with the Company following the occurrence, without
Executive’s consent, of any of the following events:
(i) the Company’s failure to satisfy the material terms
of the Agreement or (ii) relocation of Executive’s
principal work location to more than twenty-five (25) miles
from Executive’s current principal work location,
provided that, (x) within thirty (30) days
following the later of the occurrence of any of the events set
forth herein or the Executive’s knowledge of such events,
Executive shall have delivered written notice to the Company of his
intention to terminate his employment for Good Reason, which notice
specifies in reasonable detail the circumstances claimed to give
rise to Executive’s rig
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