Exhibit 4.26

EMPLOYMENT AGREEMENT

 

This Employment Agreement (“Agreement”)is dated as of May 12, 2014 is between Amira Nature Foods Ltd (the “Company”) and Bruce Wacha (“Executive”).

 

WHEREAS, the Company wishes to offer Executiveemployment as its Chief Financial Officer, and Executive wishes to accept such position, on the terms set forth herein;

 

NOW, THEREFORE, in consideration of thepromises and the mutual covenants herein contained, the parties hereto hereby agree as follows:

 

ARTICLE I: APPOINTMENT AND DUTIES

 

1.1           Effectiveon May 21, 2014 or any other date as mutually agreed by the parties (the “Start Date”), the Company hereby appointsExecutive as Chief Financial Officer of the Company on the terms and conditions stated in this Agreement. All obligations of theparties hereunder shall be contingent on Executive’s commencement of employment with the Company.

 

1.2           UnlessExecutive’s employment terminates earlier as set forth herein, his appointment hereunder shall continue for a period of threeyears from the Start Date (the “Initial Term”) and thereafter shall automatically renew on the same terms set forthherein for two consecutive one-year periods, unless one party provides the other with written notice of non-renewal no less than30 days prior to the end of the applicable term. The term of Executive’s employment under this Agreement is referred to hereinas the “Term”. Notwithstanding anything to the contrary herein, Executive’s employment with the Company shallbe “at-will”, meaning either Executive or the Company may terminate Executive’s employment at any time for anyreason, subject to any requirements of Article III.

 

1.3           TheCompany intends that Executive be appointed to the Board of Directors of the Company (the “Board”) promptly followingthe Start Date, and Executive agrees to serve on the Board. Executive agrees that, upon any termination of his employment withthe Company, he shall be deemed to resign from the Board unless otherwise requested by the Board.

 

1.4           Executive’sprincipal place of employment will be New York, New York.

 

1.5           Executiveagrees to devote all necessary time, energy and skill to his duties at the Company. The Company acknowledges that Executive mayhave continued involvement in charitable and civic activities which will not create a business or competitive conflict with theactivities of the Company. Executive agrees and represents that he is not subject to any restrictive covenants or obligations withany prior employers or businesses that would prevent him from fully performing his duties for the Company.

 

  

1.6           TheCompany shall provide Executive with the same indemnification and D&O insurance protection provided from time to time to itsofficers and directors generally.

 

ARTICLE II: COMPENSATION AND BENEFITS

 

2.1           *AnnualCash Compensation*. Executive will receive the following cash compensation during the Term:

 

(a)          Executiveshall receive a base salary (the “Base Salary”) payable in installments in accordance with the Company’s normalpayroll practices and procedures in effect from time to time and subject to applicable withholdings and deductions. Executive’sBase Salary shall be at the initial annualized rate of $425,000.

 

(b)          Executiveshall be eligible to receive a discretionary annual bonus (“Bonus”) with an annual bonus opportunity (“TargetBonus”) at an initial rate of $75,000. The payment and actual amount of a Bonus shall be determined by the Board based onachievement of Annual Performance Goals for the applicable fiscal year. The “Annual Performance Goals” for the firstyear of the Initial Term will be as set forth on Exhibit A hereto and for future years will be determined each year by the Boardin consultation with Executive and may include a combination of qualitative and quantitative goals. To be eligible for a Bonus,Executive must be employed by the Company on the date such Bonus is paid, which shall in no event be later than fifteen (15) daysafter the audited financial statements of the Company for the applicable fiscal year become available.

 

(c)          Theaggregate amount of Base Salary and Target Bonus shall be increased, following the first fiscal year during the Term, on an annualbasis by $25,000, subject to the Company’s discretion to allocate such increase between Base Salary and Bonus Opportunity.

 

2.2           *AnnualEquity Compensation*. Following the end of each fiscal year during the Term, Executive will be eligible to receive equity awards(the “Annual Grants”) in accordance with the following:

 

(a)          Executivewill have an annual equity opportunity with a grant date fair value of $400,000 (“Annual Equity Target”) if all AnnualPerformance Goals are achieved, but the actual amount of the grant date fair value of the annual equity grants (the “ActualEquity Value”) will be based on Executive’s complete or partial achievement of the Annual Performance Goals. Of theActual Equity Value, 62.5% shall be granted in the form of stock options and the remainder in restricted stock awards. The numberof shares of such stock options shall be determined by the Company using an option valuation methodology, and the stock optionsshall have a per share exercise price equal to the fair market value of the stock on the grant date. The number of shares of suchrestricted stock awards shall be determined using the fair market value of the stock on the grant date.

 

  

(b)          Forthe second and third year of the Initial Term (but not during any renewal), the Annual Equity Target will increase by $75,000 butsuch increase shall be awarded only in stock options.

 

(c)          TheAnnual Grants will be granted as soon as practicable following the end of the applicable fiscal year (but no later than 90 daysafter fiscal year unless the Company’s policies require a delay).

 

(d)          TheAnnual Grants will vest in three equal annual installments over the three years following the applicable grant date subject toExecutive’s continued employment on the applicable vesting date. The Annual Grants will otherwise be subject to the termsand conditions of the Company’s equity compensation plan.

 

2.3           *OtherPerformance-Based Equity Grants.* Executive will be eligible to receive additional equity grants (“Additional Grants”)with a grant date fair value of $100,000 (with 62.5% of such value granted in the form of stock options and the remainder to restrictedstock awards, using the same methodology for calculating the number of shares as set forth above in Section 2.2) the first timethe Company meets each Market Cap Goal. A “Market Cap Goal” means the first time the Company’s average marketcap over 4 successive fiscal quarters reaches the level of each of $1.5 billion, $2 billion, and $2.5 billion. The applicable equityawards will be granted no more than 90 days after a Market Cap Goal is achieved. Such equity awards vest in three equal annualinstallments over the three years following the grant subject to Executive’s continued employment on the applicable vestingdate. The Additional Grants will otherwise be subject to the terms and conditions of the Company’s equity compensation plan.

 

2.4           *OtherBenefits*. Executive shall have the right to receive or participate in all employee benefit programs and perquisites establishedfrom time to time by the Company for its U.S. employees. The Company will provide, or use reasonable efforts to establish programsfor, medical and dental benefits, a defined contribution retirement plan and life insurance. Executive shall receive reimbursementfor the business expenses of Executive in accordance with Company policy in place from time to time.

 

ARTICLE III: PAYMENTS UPON TERMINATION OFEMPLOYMENT

 

3.1           *Terminationof Employment*. In the event Executive’s employment with the Company terminates, Executive shall have no right to receiveany compensation, benefits or any other payments or remuneration of any kind from the Company, except as otherwise provided bythis Article III and compensation and benefits earned and unpaid through the date of Executive’s termination of employmentpursuant to the terms of the applicable Company plan or policy or as may be required by law.

 

3.2           *InvoluntaryTermination*. In the event Executive’s employment is terminated by the Company without Cause or by Executive for GoodReason (either, an “Involuntary Termination”, Executive shall be entitled to receive the following severance benefits(collectively, the “Regular Severance Benefits”):

 

 

(i)          Alump sum cash payment equal to the sum of (i) Executive’s then-current Base Salary multiplied by either (x) one or (y) ifthe termination of employment occurs before the first anniversary of the Start Date, two, and (ii) then –current Target Bonus,which shall be paid within 60 days following the date of termination; and

 

(ii)         anythen-outstanding but unvested Annual Grants and Additional Grants will not terminate but will become exercisable, settled or transferable,as applicable, on the originally scheduled vesting date (subject to any early release for sales as necessary to satisfy the Company’stax withholding obligations), but any such Annual Grants and Additional Grants shall immediately terminate if Executive breachesany of the covenants set forth in Article IV;

* *

*provided* that the Regular SeveranceBenefits are conditioned on (i) Executive’s continued compliance in all material respects with the terms of this Agreementthat survive termination of Executive’s employment with the Company, and (ii) Executive executing and not revoking a mutuallyagreed general release of claims in a form that is reasonably acceptable to the parties, which shall be provided to Executive onor about the date of termination and must be signed within the period of time set forth therein (the “Release”).

 

3.3           *Changein Control Severance Benefits*. In the event of an Involuntary Termination within one year after a Change in Control (as definedbelow), Executive shall be entitled to receive the following severance benefits subject to and in accordance with the terms ofthis Section 3.3 (collectively, the “Change in Control Severance Benefits”) in lieu of the Regular Severance Benefits:

 

(i)          Alump sum cash payment equal to (i) the sum of Executive’s then-current Base Salary and then-current Target Bonus, multipliedby (ii) the Severance Multiplier, which shall be paid within 60 days following the date of termination; *provided* that forthe purposes of this Section 3.3, the “Severance Multiplier” shall be equal to a fraction (but no more than three),the numerator of which is the greater of (A) the number of days from and including the day after the date of termination of employmentthrough and including the date the Term of this Agreement would have otherwise ended absent earlier termination or (B) 365 days,and the denominator of which shall be 365; and

 

(ii)         anythen-outstanding but unvested Annual Grants and Additional Grants will become fully vested;

* *

*provided* that the Change in ControlSeverance Benefits are conditioned on Executive signing and not revoking the Release.

 

 

3.4           *Non-Renewalby Executive*. In the event Executive delivers a notice of non-renewal pursuant to Section 1.2 above and as a result terminateshis employment, then the Company shall have no further obligation to pay any compensation to Executive beyond the date of termination,except that any then-outstanding but unvested Annual Grants granted for the first two fiscal years of the Initial Term will notterminate but will become exercisable, settled or transferable, as applicable, on the originally scheduled vesting date (subjectto any early release for sales as necessary to satisfy the Company’s tax withholding obligations), but any such Annual Grantsshall immediately terminate if Executive breaches any of the covenants set forth in Article IV; *provided* that Executivesigns and does not revoke the Release.

 

3.5           *Non-Renewalby the Company*. In the event the Company delivers a notice of non-renewal pursuant to Section 1.2 above and as a result Executive’semployment terminates, then the Company shall pay a lump sum cash payment equal to the sum of (i) Executive’s then-currentBase Salary multiplied by one and (ii) then-current Target Bonus, which shall be paid within 60 days following the date of termination.In addition, any then-outstanding but unvested Annual Grants and Additional Grants will become accelerated and fully vested; *provided*that Executive signs and does not revoke the Release.

 

3.6           *Terminationby Death of Executive*. In the event that the Executive's employment terminates by reason of his death during the Term, thenthe Company shall have no further obligation to pay any compensation to Executive or his estate or heir(s) beyond the date of termination,except that any then-outstanding but unvested Annual Grants and Additional Grants will become accelerated and fully vested forexercise, settlement or transfer by Executive's estate and heir(s), as applicable.

 

3.7           *Definitions*.For purposes of this Agreement:

 

(a)          “Cause”means Executive’s (i) commission of any felony or misdemeanor (other than minor traffic violations or offenses of a comparablemagnitude not involving dishonesty, fraud or breach of trust); or (ii) material breach of this Agreement or of any Company policyor code of conduct, *provided* that, in the event of any such breach that is capable of being cured, Cause shall exist onlyif the Company provides written notice to Executive reasonably detailing such breach and Executive fails to cure such breach withinthirty (30) days after delivery to Executive of such written notice.

 

(b)          “GoodReason” means (i) the Company’s material breach of this Agreement (*provided* that Executive not being appointedor re-elected to the Board shall not constitute Good Reason) or (ii) changing Executive’s principal place of employment tomore than 50 miles from New York, New York; *provided* that in order to terminate for Good Reason, Executive must give theCompany notice within 90 days of the initial existence of the event constituting Good Reason and, if the Company does not curesuch event within 30 days of such notice, Executive must resign within 30 days after the end of the Company’s 30-day cureperiod.

 

 

(c)          “Changein Control” shall mean (i) any person (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Actof 1934, as amended (“Exchange Act”)), other than Executive and his affiliates, the Company, any employee benefit planof the Company, or any entity owned directly or indirectly by the shareholders of the Company in substantially the same proportionas their ownership of ordinary shares of the Company, becomes the beneficial owner (within the meaning of Rule 13d-3 promulgatedunder the Exchange Act) of securities of the Company (not including in the securities beneficially owned by such person any securitiesacquired directly from the Company or its affiliates) representing more than 50% of the combined voting power of the Company’sthen outstanding voting securities; or (ii) there shall have been consummated a consolidation, merger or reorganization of theCompany, unless (A) the shareholders of the Company immediately before such consolidation, merger or reorganization own, directlyor indirectly, at least a majority of the combined voting power of the outstanding voting securities of the corporation or otherentity resulting from such consolidation, merger or reorganization, (B) individuals who were members of the Board immediately priorto the execution of the agreement providing for such consolidation, merger or reorganization constitute a majority of the boardof directors of the surviving corporation or of a corporation directly or indirectly beneficially owning a majority of the votingsecurities of the surviving corporation, and (C) no person beneficially owns more than 50% of the combined voting power of thethen outstanding voting securities of the surviving corporation (other than a person who is (1) the Company or a subsidiary ofthe Company, (2) an employee benefit plan maintained by the Company, the surviving corporation or any subsidiary, or (3) the beneficialowner of 50% or more of the combined voting power of the outstanding voting securities of the Company immediately prior to suchconsolidation, merger or reorganization).

 

ARTICLE IV: CONFIDENTIALITY, NON-SOLICITATIONAND NON-COMPETITION

 

4.1           *FormerEmployer Information*. Executive represents and acknowledges that his performance of all the terms of this Agreement and asan employee of the Company does not and will not breach any agreement to keep in confidence proprietary information, knowledgeor data acquired by him in confidence or in trust prior to his employment by the Company, and Executive will not disclose to theCompany or induce the Company to use any confidential or proprietary information or material belonging to any previous employersor others.

 

 

4.2           *Representations*.Executive represents and acknowledges that: (i) among the Company’s most valuable and indispensable assets are its ConfidentialInformation and its close relationships with its customers, suppliers, employees and independent contractors, which the Companyhas devoted and continues to devote a substantial amount of time, money and other resources to develop; (ii) in connection withExecutive’s employment with the Company, Executive will be exposed to and acquire the Company’s Confidential Informationand develop, at the Company’s expense, special and close relationships with the Company’s customers, suppliers, employeesand independent contractors; (iii) the Company’s Confidential Information and close relationships with its customers, suppliers,employees and independent contractors must be protected; (iv) the Company is employing or continuing to employ Executive only becauseof the promises and acknowledgements that Executive makes in this Agreement; (v) to the extent required by law, the scope of thecovenants in this Agreement are reasonable and do not impose a greater restraint on Executive than is necessary to protect theCompany’s Confidential Information, close relationships with its customers, suppliers, employees and independent contractorsand other legitimate business interests; (vi) specifically, the Company’s business is global in nature and, therefore, thegeographic scope of such covenants is likewise reasonably global; and (vii) Executive’s compliance with such covenants willnot inhibit Executive from earning a living or from working in Executive’s chosen profession.

 

4.3           *ConfidentialInformation*. Executive agrees that both during Executive’s employment by the Company and at all times thereafter, Executivewill not, except as required to discharge effectively and appropriately Executive’s duties to the Company or as may be requiredby law, directly or indirectly, use or disclose to any third person, without the prior written consent of the Company, any ConfidentialInformation of the Company. For purposes of this Agreement, “Confidential Information” means all information of a confidentialor proprietary nature regarding the Company or its business or properties that the Company has furnished or furnishes to Executive,whether before or after the date of this Agreement, or is or becomes available to Executive by virtue of Executive’s employmentby the Company, whether tangible or intangible, and in whatever form or medium provided, as well as all information Executive generatesthat contains, reflects or is derived from such information that, in each case, has not been published or disclosed to, and isnot otherwise known to, the public (or only known to the public, directly or indirectly, as a result of conduct by Executive thatis not authorized by the Company). The term, “Confidential Information” shall include, but not be limited to, customerlists, customer requirements and specifications, designs, financial data, sales figures, costs and pricing figures, marketing andother business plans, product development, marketing concepts, personnel matters, drawings, specifications, instructions, methods,processes, techniques, computer software or data of any sort developed or compiled by the Company, formulae or any other informationrelating to the Company’s services, products, sales, technology, research data, software and all other know-how, trade secretsor proprietary information, or any copies, elaborations, modifications and adaptations thereof. In the event that the Company isbound by a confidentiality agreement or understanding with a customer, vendor, supplier or other party regarding the confidentialinformation of such customer, vendor, supplier or other party, which is more restrictive than specified above in this Section 4.3,and of which Executive has notice or is aware, Executive also agrees to adhere to the provisions of such other confidentialityagreement, which shall not be superseded by this Section 4.3.

 

 

4.4           *Non-Competition*.

 

(a)          Executiveagrees that, during the Restricted Period (defined below), regardless of whether, or on what basis, Executive’s employmentis terminated or any claim that Executive may have against the Company under this Agreement or otherwise, Executive shall not,without the prior written consent of the Company, directly or indirectly (defined below), actually or attempt to engage in thebusiness, by becoming an employee or other advisor, of (i) any of the following companies or their subsidiaries: LT Foods, REIGlobal, KRBL Foods, Sunstar, or Radikal Foods; and (ii) any company the predominant business of which is Indian Basmati rice (eacha "Competing Business").

 

(b)          Forpurposes of this Agreement, the “Restricted Period” will be until the later of (i) the date that the Initial Term wouldhave ended (absent earlier termination of employment) or (ii) the second anniversary of the date of termination of Executive’semployment with the Company.

 

(c)          Forthe purpose of this Article IV, “directly or indirectly” shall include any activity, on behalf of Executive or by theExecutive on behalf of or in conjunction with any other person or entity, whether as an employee, agent, consultant, independentcontractor, officer, director, principal, shareholder, equity holder, partner, member, joint venturer, lender, investor or otherwise,except that nothing in this Agreement shall prohibit Executive from: (a) being a passive holder, for investment purposes only,of not more than one percent (1%) of the outstanding stock of any Competing Business; or (b) acting as an employee, agent, consultant,independent contractor, officer, director, principal, shareholder, equity holder, partner, member, joint venturer, lender, investorof or for any investment bank or other financial or consulting entity that provides services to a Competing Business, providedthat should Executive accept any such employment or engagement, Executive shall not in any way, directly or indirectly, participatein or contribute to any services provided to or for any Competing Business during the Restricted Period.

 

4.5           *NoInterference with Employees*. Executive agrees that, during the Restricted Period, regardless of whether, or on what basis,Executive’s employment is terminated or any claim that Executive may have against the Company under this Agreement or otherwise,Executive shall not, without the prior written consent of the Company, directly or indirectly, actually or attempt to: (i) solicit,induce or entice any employee, consultant or independent contractor of the Company to terminate, reduce or refrain from renewingor extending such person’s or entity’s business or employment relationship with the Company; (ii) solicit, induce orentice any employee of the Company to engage in the Competing Business; (iii) employ or otherwise engage as an employee, independentcontractor or consultant any employee of the Company; or (iv) otherwise interfere with the relationship between the Company andany employee, consultant or independent contractor of the Company.

 

 

4.6           *Remedies*.Executive understands and acknowledges that a breach of the provisions of this Agreement would injure the Company irreparably ina way which could not be adequately compensated for by an award of monetary damages. Executive therefore consents to the issuanceto the Company of a preliminary and/or permanent injunction, without the posting of a bond, to restrain any such breach or threatenedbreach. Additionally, in the event Executive breaches or threatens to breach any of the covenants, promises or obligations containedin this Agreement, the Company shall be entitled to recover without limitation from Executive all costs and fees (including reasonableattorneys’ fees) incurred by the Company in connection with enforcing this Agreement. Nothing herein shall be construed,however, as prohibiting the Company from pursuing any other available remedies for such breach or threatened breach.

 

4.7           *Miscellaneous.* The invalidity or unenforceability of any provision or provisions of this Article IV shall not affect the validity or enforceabilityof any other provision or provisions of this Article IV, which shall remain in full force and effect. If any provision of thisArticle IV is held to be invalid, void or unenforceable in any jurisdiction, any court or arbitrator so holding shall substitutea valid, enforceable provision that preserves, to the maximum lawful extent, the terms and intent of this Agreement. For the purposesof this Article IV only, references to the Company shall refer not only to the Company, but also to its parent, subsidiary andaffiliated companies as of the date of termination of Executive's employment by the Company.

 

ARTICLE V: THE COMPANY’S INTELLECTUALPROPERTY RIGHTS

 

5.1           Executiveacknowledges and agrees that all Intellectual Property (defined below) created, made or conceived by Executive (solely or jointly)during Executive’s employment by the Company that relates to the actual or anticipated businesses of the Company or resultsfrom or is suggested by any work performed by employees or independent contractors for or on behalf of the Company (“theCompany Intellectual Property”) shall be deemed “work for hire” and shall be and remain the sole and exclusiveproperty of the Company for any and all purposes and uses whatsoever as soon as Executive conceives or develops such IntellectualProperty, and Executive hereby agrees that its assigns, executors, heirs, administrators or personal representatives shall haveno right, title or interest of any kind or nature therein or thereto, or in or to any results and proceeds therefrom. If for anyreason such the Company Intellectual Property is not deemed to be “work-for-hire,” then Executive hereby irrevocablyand unconditionally assigns all rights, title, and interest in such the Company Intellectual Property to the Company and agreesthat the Company is under no further obligation, monetary or otherwise, to Executive for such assignment. Executive also herebywaives all claims to any moral rights or other special rights that Executive may have or may accrue in any the Company IntellectualProperty. As used in this Agreement, “Intellectual Property” shall mean and include any ideas, inventions (whetheror not patentable), designs, improvements, discoveries, innovations, patents, patent applications, trademarks, service marks, tradedress, trade names, trade secrets, works of authorship, copyrights, copyrightable works, films, audio and video tapes, other audioand visual works of any kind, scripts, sketches, models, formulas, tests, analyses, software, firmware, computer processes, computerand other applications, creations and properties, Confidential Information and any other patents, inventions or works of creativeauthorship.

 

 

5.2           Executiveagrees to assist the Company, and to take all reasonable steps, with securing patents, registering copyrights and trademarks, andobtaining any other forms of protection for the Intellectual Property. In particular, at the Company’s expense (except asnoted in clause (i) below), Executive shall forthwith upon request of the Company execute all such assignments and other documents(including applications for patents, copyrights, trademarks, and assignments thereof) and take all such other action as the Companymay reasonably request in order (i) to vest in the Company all of Executive’s right, title, and interest in and to such IntellectualProperty, free and clear of liens, mortgages, security interests, pledges, charges, and encumbrances (“Liens”) (andExecutive agrees to take such action, at its expense, as is necessary to remove all such Liens) and (ii), if patentable or copyrightable,to obtain patents or copyrights (including extensions and renewals) therefor in any and all countries in such name as the Companyshall determine. In the event that Executive is unable or unavailable or shall refuse to sign any lawful or necessary documentsrequired in order for the Company to apply for and obtain any copyright or patent with respect to any work performed by Executivein the course of his employment with the Company (including applications or renewals, extensions, divisions or continuations),Executive hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as Executive’sagents and attorneys-in-fact to act for and in Executive’s behalf, and in Executive’s place and stead, to execute andfile any such applications or documents and to do all other lawfully permitted acts to further the prosecution and issuance ofcopyrights and patents with respect to such Intellectual Property with the same legal force and effect as if executed or undertakenby Executive.

 

5.3           Executiverepresents and warrants to the Company that all Intellectual Property Executive delivers to the Company shall be original and shallnot infringe upon or violate any patent, copyright or proprietary right of any person or third party.

 

5.4           IfExecutive in the course of Executive’s employment for the Company incorporates into a Company product Intellectual Propertythat Executive has, alone or jointly with others, conceived, developed or reduced to practice prior to the commencement of Executive’semployment with the Company in which Executive has a property right (each, a “Prior Invention”), Executive hereby grantsto the Company a perpetual, nonexclusive, royalty-free, irrevocable, worldwide license (with the full right to sublicense) to make,have made, modify, use and sell such Prior Invention.

 

5.5           Forthe purposes of this Article V only, references to the Company shall refer not only to the Company, but also to its parent, subsidiaryand affiliated companies.

 

 

ARTICLE VI: MISCELLANEOUS

 

6.1           *Section409A*.

 

(i)          Thepayments under this Agreement are intended to qualify for the short-term deferral exception to Section 409A of the Code (“Section409A”) described in the regulations promulgated under Section 409A (the “Section 409A Regulations”) to the maximumextent possible, and to the extent the payments and benefits under Article III do not so qualify, they are intended to qualifyfor the involuntary separation pay plan exception to Section 409A described in the Section 409A Regulations to the maximum extentpossible. To the extent Section 409A is applicable to this Agreement, this Agreement is intended to comply with Section 409A, andshall be interpreted and construed and shall be performed by the parties consistent with such intent, and the Company shall haveno right, without Executive’s consent, to accelerate any payment or the provision of any benefits under this Agreement ifsuch payment or provision of such benefits would, as a result, be subject to tax under Section 409A. To the extent any paymenthereunder is determined to be deferred compensation subject to Section 409A and the timing of such payment is conditioned on theRelease becoming effective, then to the extent required to avoid penalty under Section 409A, any such payment hereunder that couldbe paid in either of two taxable years shall be made in the second taxable year.

 

(ii)         Withoutlimiting the generality of the foregoing, if Executive is a “specified employee” within the meaning of Section 409A,as determined under the Company’s established methodology for determining specified employees, on the date of terminationof employment, then to the extent required in order to comply with Section 409A, amounts that would otherwise be payable underthis Agreement during the six-month period immediately following such termination date shall instead be paid (together with interestat the then current six-month LIBOR rate) on the first business day after the date that is six months following Executive’stermination of employment.

 

(iii)        Exceptas expressly provided otherwise herein, no reimbursement payable to Executive pursuant to any provisions of this Agreement or pursuantto any plan or arrangement of the Company covered by this Agreement shall be paid later than the last day of the calendar yearfollowing the calendar year in which the related expense was incurred, and no such reimbursement during any calendar year shallaffect the amounts eligible for reimbursement in any other calendar year, except, in each case, to the extent that the right toreimbursement does not provide for a “deferral of compensation” within the meaning of Section 409A of the Code.

 

(iv)For purposes of this Agreement,the terms “terminate,” “terminated” and “termination” mean a termination of Executive’semployment that constitutes a “separation from service” within the meaning of the default rules of Section 409A ofthe Code.

 

6.2           *Successorsand Assigns*. The provisions of this Agreement shall inure to the benefit of and be binding upon the Company, Executive andeach and all of their respective heirs, legal representatives, successors and assigns. The duties, responsibilities and obligationsof Executive under this Agreement shall be personal and not assignable or delegable by Executive in any manner whatsoever to anyperson, corporation, partnership, firm, company, joint venture or other entity. Executive may not assign, transfer, convey, mortgage,pledge or in any other manner encumber the compensation or other benefits to be received by him or any rights which he may havepursuant to the terms and provisions of this Agreement.

 

 

6.3           *EntireAgreement*. This Agreement constitutes the entire employment agreement between Executive and the Company regarding the termsand conditions of his employment and any amounts due on termination of such employment, with the exception of the Company’semployee benefit plans referenced herein. This Agreement supersedes all prior negotiations, representations or agreements betweenExecutive and the Company, whether written or oral, concerning Executive’s employment by or service to the Company. Any severancepayments and benefits under Article III shall not supersede any other cash severance or termination benefits otherwise payableto Executive under any other plans, programs or arrangement of the Company and shall be reduced to extent severance or terminationbenefits are required by applicable law.

 

6.4           *WithholdingTaxes*. All payments made under this Agreement shall be subject to reduction to reflect taxes required to be withheld by law.

 

6.5           *Counterparts*.This Agreement may be executed by the Company and Executive in counterparts, each of which shall be deemed an original and whichtogether shall constitute one instrument.

 

6.6           *SavingsProvision*. To the extent that any provision of this Agreement or any paragraph, term, provision, sentence, phrase, clause orword of this Agreement shall be found to be illegal or unenforceable for any reason, such paragraph, term, provision, sentence,phrase, clause or word shall be modified or deleted in such a manner as to make this Agreement, as so modified, legal and enforceableunder applicable laws. The remainder of this Agreement shall continue in full force and effect.

 

6.7           *GoverningLaw*. Executive and the Company agree that this Agreement shall be interpreted in accordance with and governed by the laws ofthe State of New York.

 

 

IN WITNESS WHEREOF, the parties have executedthis Agreement as of the date and year written above.

 

 

 

Exhibit A – First-Year AnnualPerformance Goals

 

•	           Raising money for the Companyand financing newly created international business, achieving appropriate cost of capital via marketed bond offering, private placement,bank loans or other financing opportunities as appropriate

 

•	           Preparation of quarterly and fiscalyearend financial results

 

•	           Participation in earnings callswith investors and sell side research analysts

 

•	           Preparation of investor relationsroadmap including goals and strategy, participation in non-deal investor conferences

 

•	           Preparation of Company budget