FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (Level 13 Officer)
Exhibit
10.3
FIRST
AMENDMENT TO EMPLOYMENT AGREEMENT
(Level 13
Officer)
THIS
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (this “Amendment”) is entered into as
of November __, 2008 by and among Altairnano, Inc., a Nevada
corporation (the “Company”), Altair Nanotechnologies Inc., a Canadian
corporation (“Parent”; together with the Company and all direct or indirect
majority-owned subsidiaries of the Parent, the “Consolidated Companies”; each a
“Consolidated Company”), and Xxxxx Xxxxxxxx, an individual
(“Employee”).
RECITALS
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A.
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Employee,
the Company and Parent have previously entered into that certain
Employment Agreement (Level 13 Officer) dated as of June 23, 2008 (the
“Employment Agreement”).
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B.
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Employee,
the Company and Parent now desire to amend certain terms of the Employment
Agreement in order to comply with Section 409A of the Internal Revenue
Code (“Section 409A”) as well as all regulations promulgated
thereunder.
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NOW,
THEREFORE, in consideration of this Amendment and of the covenants and
conditions contained in this Amendment, the parties hereto agree as
follows:
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1.
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Section
4.3 of the Employment Agreement is hereby amended to add the following
sentence at the end thereof:
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“In all
circumstances, the bonus owing to Employee hereunder shall be paid to Employee
prior to March 15th of the year following the year in which the Employee has
achieved the agreed-upon performance objectives, such achievement being
determined in the sole discretion of the Board.”
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2.
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Section
7.3 of the Employment Agreement is hereby deleted in its entirety and
replaced with the following:
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7.3 Termination by Employee for
Good Reason. If Employee's employment is terminated by
Employee for Good Reason during the Term (but not as of an Expiration Date),
then, in addition to complying with the requirements of Section 7.1, the Company
shall, subject to the terms and conditions of this Agreement and conditioned
upon the Company’s receipt of a written waiver, release and non-litigation
agreement from Employee in form and substance reasonably satisfactory to the
Consolidated Companies with respect to all liabilities of any Consolidated
Company of any kind arising prior to and in connection with such termination
(other than under Options and Section 7) (a “Release”), pay to or for the
benefit of Employee or, if applicable, Employee’s heirs or estate:
(a) with
respect to the Severance Period (as defined in Section 7.5 below), Employee’s
base salary at a rate equal to Employee’s salary rate as of the date of
termination, payable as follows: (i) all amounts that would otherwise be payable
with respect to the six months immediately following Employee’s “separation from
service” (as defined in Treasury Regulation Section 1.409A-1(h)) from the
Company (a “Separation from Service”) shall be accrued and paid within five
business days following, but in no event prior to, the six-month anniversary of
Employee’s Separation of Service or, if earlier, the date of Employee’s death;
and (ii) all amounts payable with respect to portions of the Severance Period
following the six-month anniversary of Employee’s Separation of Service shall be
paid in accordance with the Company’s customary pay schedule; and
(b)
Company health benefits coverage then in effect (with Company /Employee
contributions remaining the same on a percentage basis as during the period
immediately prior to termination) with respect to the Severance
Period.
The
foregoing payment structure is intended to comply with the requirements of
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and
shall be interpreted consistently with that intent.
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3.
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Section
7.4 of the Employment Agreement is hereby deleted in its entirety and
replaced with the following:
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7.4 Termination by Company
without Cause. If Employee's employment is terminated by the
Company without Cause during the Term (but not as of an Expiration Date), then,
in addition to complying with the requirements of Section 7.1, the Company
shall, subject to the terms and conditions of this Agreement and conditioned
upon the Company’s receipt of a Release, continue to pay, when due in accordance
with the Company’s customary pay schedule, to or for the benefit of
Employee or, if applicable, his heirs or estate, subject to (A) and (B)
below:
(a)
Employee’s base salary at a rate equal to Employee’s salary rate as of the date
of termination with respect to the Severance Period;
(b)
Company health benefits coverage then in effect (with Company /Employee
contributions remaining the same on a percentage basis as during the period
immediately prior to termination) with respect to an eighteen-month period
commencing on the first date of the Severance Period; and
(c) a
bonus, payable within 30 days of the Company’s receipt of a Release, equal to
the product of (i) eight percent (80%) of Employee’s annualized base salary
as of the date on which the which termination of Employee’s services occurs,
multiplied by (ii) a fraction, the numerator of which is the number of days that
have elapsed during the then-current calendar year and the denominator of which
is 365.
Notwithstanding
anything in this Section 7.4 to the contrary: (A) no base salary continuation or
bonus amount otherwise payable to the Employee under this Section 7.4 shall be
paid unless and until the Employee incurs a Separation from Service from the
Company during the Severance Period (with any amounts deferred as a result of
this subsection 7.4(A) being payable promptly following such Separation from
Service and as permitted by subsection 7.4(B)); and (B) any base salary and
bonus amounts that are otherwise due or payable under this Section 7.4 during
the six-month period following the Employee’s Separation from Service shall
instead be deferred and paid to the Employee within five business days after,
but in no instance prior to, the six-month anniversary of Employee’s Separation
from Service (or, if earlier, the date of Employee’s death) if and to the extent
that such amounts (1) do not constitute “separation pay due to involuntary
separation from service” (as defined in Treasury Regulation Section
1.409A-1(b)(9)(iii)); and (2) are subject to Code Section 409A. All
base salary continuation amounts owing to Employee with respect to portions of
the Severance Period following the six-month anniversary of the Separation of
Service shall be paid in accordance with the Company’s customary
pay schedule. The foregoing restrictions on the payment of
continuing base salary and bonus are intended to comply with the requirements of
Section 409A of the Code and shall be interpreted consistently with that
intent.
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4.
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A
new Section 7.5 of the Employment Agreement is hereby added to the
Employment Agreement, as follows:
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7.5 Severance
Period. Subject to Section 7.7, the “Severance Period” shall
be the period beginning on the effective date of any termination of Employee’s
employment during the Term in a manner triggering a benefit under Section 7.3 or
7.4, as applicable, and ending on the 12-month anniversary of such termination
date. Notwithstanding the foregoing, if (a) Employee relocated was
required to relocate from a location more than 50 miles from the Place of
Employment in order to commence employment with the Consolidated
Companies and Employee’s employment is subsequently terminated during the
Term by Employee for Good Reason or by the Company without Cause on or before
the two-year anniversary of the Effective Date, or (b) Employee’ accepts a
change in Employee’s place of employment (and relocates without terminating his
or her Employment for Good Reason based upon such change) during the Term and
then Employee’s employment is terminated during the Term by Employee for Good
Reason or by the Company without Cause before the two-year anniversary of such
change in Employee’s place of employment, then in case of either (a) or (b) the
periods referred to in the definition of Severance Period shall be changed from
12-months to 16-months.
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5.
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All
other provisions of the Employment Agreement are confirmed in their
entirety, provided, however, that any provision of the Employment
Agreement inconsistent with this Amendment shall be considered amended and
revised to conform to the provisions of this
Amendment.
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6.
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This
Agreement may be executed in multiple counterparts, all of which taken
together shall form a single Agreement. A facsimile copy of
this Agreement or any counterpart thereto shall be valid as an
original.
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IN
WITNESS WHEREOF, Employee has signed this Amendment personally and the Company
and Parent have caused this Agreement to be executed by their duly authorized
representatives.
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COMPANY:
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ALTAIRNANO,
INC.
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a
Nevada corporation
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By:
/s/
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Name:
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Title:
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PARENT:
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a
Canadian corporation
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By: /s/
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Name:
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Title:
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EMPLOYEE:
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/s/
Xxxxx Xxxxxxxx
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Xxxxx
Xxxxxxxx, an individual
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