Exhibit 10.3
EXECUTIVE EMPLOYMENT
AGREEMENT
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PARTIES:
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FLIR Systems,
Inc. (“Company”)
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27700 SW
Parkway Avenue
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Wilsonville,
Oregon 97070
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Stephen M.
Bailey (“Executive”)
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16740 SW Pinot
Place
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Hillsboro,
Oregon 97123
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EFFECTIVE DATE:
January 1, 2009
RECITALS:
The Company wishes to obtain the
services of Executive for the duration of this Agreement, and the
Executive wishes to provide his services for such period, all upon
the terms and conditions set forth in this Agreement.
Therefore, in consideration of the
mutual promises contained herein, the parties agree as
follows:
ARTICLE I
DEFINITIONS
1.1 “ Base Salary
” means regular cash compensation paid on a periodic
basis exclusive of benefits, bonuses or incentive
payments.
1.2 “ Board
” means the Board of Directors of the Company.
1.3 “ Cause
” means Executive committed any one or more of the
following: (i) willful gross misconduct in the performance of
any material duties under this Agreement that results in material
damage to the Company, and if such misconduct is susceptible of
cure, the failure to effect such cure within thirty (30) days
after written notice from the Board and/or the Company’s
Chief Executive Officer of such misconduct is given to Executive;
(ii) material use of alcohol or illegal drugs which materially
interferes with the performance of Executive’s duties
hereunder and materially damages the Company; (iii) theft,
embezzlement, fraud, misappropriation of funds, other willful acts
of dishonesty or the willful and material violation of any material
law, ethical rule or fiduciary duty relating to Executive’s
employment by the Company that materially damages the Company;
(iv) a felony or any act involving moral turpitude;
(v) the willful and material violation of any confidentiality
or proprietary rights agreement between Executive and the Company
that materially damages the Company; or (vi) the willful and
material violation of Company policy or procedure, or breach of any
material provision of this Agreement, that materially damages the
Company, and if such violation or breach is susceptible of cure,
the failure to effect such cure within thirty (30) days after
written notice from the Board and/or Chief Executive Officer of
such violation or breach is given to Executive.
1.4 “ Change of
Control ” means the occurrence of a “change in
the ownership,” a “change in the effective
control” or a “change in the ownership of a substantial
portion of the assets” of the Company, as determined in
accordance with this Section 1.4. In determining whether an
event shall be considered a “change in the ownership,”
a “change in the effective control” or a “change
in the ownership of a substantial portion of the assets” of
the Company, the following provisions shall apply:
(a) A “change in the
ownership” of the Company shall occur on the date on which
any one person, or more than one person acting as a group, acquires
ownership of stock of the Company that, together with stock held by
such person or group, constitutes more than 50% of the total fair
market value or total voting power of the stock of the Company, as
determined in accordance with Treasury Regulation
§1.409A-3(i)(5)(v).
(b) A “change in the
effective control” of the Company shall occur on the date on
which a majority of the members of the Company’s Board of
Directors is replaced during any 12-month period by directors whose
appointment or election is not endorsed by a majority of the
members of the Company’s Board of Directors before the date
of the appointment or election, as determined in accordance with
Treasury Regulation §1.409A-3(i)(5)(vi).
(c) A “change in the ownership
of a substantial portion of the assets” of the Company shall
occur on the date on which any one person, or more than one person
acting as a group, acquires (or has acquired during the 12-month
period ending on the date of the most recent acquisition by such
person or persons) assets from the Company that have a total gross
fair market value equal to or more than 50% of the total gross fair
market value of all of the assets of the Company immediately before
such acquisition or acquisitions, as determined in accordance with
Treasury Regulation §1.409A-3(i)(5)(vii). A transfer of assets
shall not be treated as a “change in the ownership of a
substantial portion of the assets” when such transfer is made
to an entity that is controlled by the shareholders of the Company,
as determined in accordance with Treasury Regulation
§1.409A-3(i)(5)(vii)(B).
1.5 “ Disability
” means for purposes of Sections 4.5 and 4.6, the
inability of Executive to perform his duties under this Agreement,
with or without reasonable accommodation, because of physical or
mental incapacity for a continuous period of five (5) months,
as determined by the Board.
ARTICLE II
EMPLOYMENT, DUTIES AND
TERM
2.1 Employment . Upon
the terms and conditions set forth in this Agreement, the Company
hereby employs Executive as Senior Vice President, Finance and
Chief Financial Officer, and Executive accepts such
employment.
2.2 Duties . Executive
shall devote his full-time and best efforts to the Company and to
fulfilling the duties of Chief Financial Officer, which shall
include such duties as may from time to time be assigned him by the
Board and Chief Executive Officer, provided that such duties are
reasonably consistent with Executive’s education, experience
and background. Executive shall comply with the Company’s
policies and procedures to the extent they are not inconsistent
with this Agreement in which case the provisions of this Agreement
prevail. Executive shall also be permitted to serve on outside
boards, commissions and partnerships to the extent such service
does not conflict with the provisions of this Agreement.
2.3 Term . The term of
this Agreement shall be until January 1, 2011, unless earlier
terminated in accordance with Article IV. This Agreement may
be extended by mutual agreement of the parties.
ARTICLE III
COMPENSATION AND
EXPENSES
3.1 Base Salary . For
all services rendered under this Agreement during the term of
Executive’s employment, the Company shall pay Executive a
minimum annual Base Salary of $400,000; provided ,
however , that notwithstanding that Executive has a
contractual right, pursuant to the Employment Agreement between
Executive and the Company, dated as of February 27, 2008, to a
minimum annual Base Salary of $400,000 for 2009, Executive has
agreed to receive a salary of $370,000 for a portion of 2009
beginning on January 1, 2009 and ending on a date during 2009
that is chosen by the Executive acting in his discretion. In the
event that salary adjustments for the Company’s executive
officers in 2009 are implemented on a retroactive basis,
Executive’s Base Salary will also be adjusted, on a
retroactive basis to January 1, 2009, to $400,000.
3.2 Bonus . Executive shall be
eligible for bonuses, incentive payments and other awards as
determined by the Board or the Compensation Committee of the Board
(the “Committee”) in accordance with the FLIR Systems,
Inc. 2007 Executive Bonus Plan then in effect, as amended from time
to time.
3.3 Equity Awards .
Executive shall annually be eligible for grants of equity awards as
determined by the Board. All such grants, including all past and
future grants, shall be subject to the terms and conditions set
forth in the grant agreements between Executive and the Company
associated with each such grant. In the event of any inconsistency
between this Agreement and the grant agreements, the terms and
conditions of the grant agreements shall take
precedence.
3.4 Personal Time Off
. Executive shall earn personal time off during the term of his
employment in accordance with the Company’s policies
regarding paid time off that are applicable to the Company’s
executive officers.
3.5 Benefits .
Executive shall be eligible to participate in all Company-sponsored
health and welfare benefit plans as made available to other
executives of the Company and notwithstanding any provision herein
to the contrary, following termination for a reason other than
Cause the Company will pay Executive’s COBRA premiums for
continuation of coverage in any Company-sponsored group health
benefit plans for Executive and any of Executive’s dependents
eligible to participate in the plans until the earliest of
(a) 18 months, (b) such time as Executive obtains
comparable benefits through employment or otherwise and
(c) age 65.
3.6 Supplemental Employee
Retirement Plan . The Company shall make all contributions
to its Supplemental Employee Retirement Plan (“SERP”)
on behalf of Executive for each plan year in accordance with the
SERP then in effect, as amended from time to time.
3.7 Business Expenses
. The Company shall, in accordance with, and to the extent of, its
policies in effect from time to time, bear all ordinary and
necessary business expenses reasonably incurred by Executive in
performing his duties as an employee of the Company, provided that
Executive accounts promptly for such expenses to the Company in the
manner prescribed from time to time by the Company.
3.8 Taxes and Withholding
. All amounts payable to Executive under this Agreement shall
be net of amounts required to be withheld by law. To the extent
there is any tax consequence to Executive in connection with
payment for work between two states, Executive’s Base Salary
shall be grossed up to cover the tax consequence to
Executive.
ARTICLE IV
EARLY
TERMINATION
4.1 Early Termination
. This Article sets forth the terms for early termination of this
Executive’s employment with the Company.
4.2 Termination for
Cause . The Company may terminate this Agreement and
Executive’s employment for Cause immediately upon written
notice from the Board and/or the Company’s Chief Executive
Officer to Executive. In the event of termination for Cause
pursuant to this Section 4.2, Executive shall be paid
Executive’s Base Salary through the date of termination at
the rate then in effect, and (without regard to any language that
may be inconsistent in any option grant) for any option granted on
or after the date of this Agreement Executive shall have the lesser
of three (3) months from such termination or the remaining
option term in which to exercise his vested stock
options.
4.3 Termination Without Cause .
Either Executive or the Company may terminate this Agreement and
Executive’s employment without Cause on no less than thirty
(30) days written notice from or to the Chief Executive
Officer. In the event Executive terminates his employment without
Cause pursuant to this Section 4.3, Executive shall be paid
his base salary through the date of termination. In the event the
Company terminates the Executive’s employment without Cause
pursuant to this Section 4.3 except for a termination
described in section 4.4, the Company shall pay to Executive:
(i) continuation of Executive’s Base Salary in effect at
the time of termination for a period of eighteen (18) months
or for the duration of the remaining term of the Agreement,
whichever is greater, in accordance with the Company’s
regular payroll practices; (ii) all equity awards granted to
Executive shall immediately vest; and (iii) Executive shall be
entitled to an annual bonus (in lieu of any bonus for the year of
termination otherwise set forth in Section 3.2) in an amount
not less than sixty percent (60%) of one (1) year’s
Base Salary, which amount shall be paid promptly at
termination.