Exhibit 10.3
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (“Agreement”) is between SG BLOCKS, INC. (the “Company”) and Stevan Armstrong (“Executive”) and is effective as of January 1, 2017 (“Effective Date”). In consideration of the mutual covenants set forth herein, the Company and Executive (collectively, the “Parties” and each individually, a “Party”) agree as follows:
1. | Executive’s Employment with the Company. During the Term, the Company agrees to employ Executive as President and Chief Operating Officer of the Company or in any other position to which the Parties subsequently agree. During Executive’s employment with the Company, Executive agrees to: (i) devote all of Executive’s time, energy, skill and best efforts to the performance of Executive’s job duties, as assigned by the Company, and to the business of the Company, and shall perform such duties as assigned by the Company – which duties may change from time to time – in a diligent, trustworthy, and business-like manner and in compliance with all applicable laws; (ii) use his reasonable best efforts to foster the Company’s interests; and (iii) comply with the Company’s existing and future policies, manuals and procedures as adopted and provided to Executive; provided that, in the event of any conflict between any such policy, manual or procedure and the provisions of this Agreement, the provisions of this Agreement shall control. While frequent travel may be required of Executive in Executive’s performance of Executive’s job duties for the Company, Executive’s primary work location shall be located in Nashville, Tennessee or any other location at which the Company’s headquarters may be located during the Term (as defined below). Executive shall not at any time during Executive’s employment with the Company: (a) work on any basis (including, without limitation, part-time or as an independent contractor) for a Competing Business (as defined in Section 5(a)); or (b) participate in any way in any other business that is not a Competing Business to the extent that such participation adversely affects Executive’s performance of Executive’s job duties for the Company or that may or does adversely affect the Company in any way. |
3. | Compensation and Benefits. |
(a) | As compensation for all services rendered by Executive to the Company or any of the Company’s subsidiaries or affiliates, the Company shall pay Executive an annual base salary of $140,000 (“Base Salary”), to be paid in installments in accordance with the Company’s normal payroll practices and subject to all required and/or authorized withholdings and deductions. |
(b) | Executive shall be eligible to receive a discretionary annual cash bonus on each of the first two anniversaries of this Agreement based on the achievement of certain financial and personal and strategic performance metrics established by the Board of Directors of the Company (the “Board”) in its reasonable discretion (each, a “Discretionary Bonus”). The terms and conditions of such discretionary annual cash bonus are set forth on Exhibit A (the “Bonus Plan”). The Board shall undertake a review of Executive’s Base Salary and Discretionary Bonus not less often than annually. The principal criteria utilized by the Board in the conduct of its reviews shall be the extent to which the Company attains its performance objectives and the extent of Executive’s contributions thereto. |
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(c) | As additional compensation for services rendered, during the Term, Executive shall receive the option to purchase up to 21,281 shares of the Company’s issued and outstanding common stock, par value $0.01 per share (“Common Stock”), for an exercise price of $3.00 per share, subject to the terms and conditions of the Company’s stock incentive plan then in effect (the “Employment Option”). The Employment Option shall vest in eight equal quarterly installments over two years and shall be subject to the requirement that Executive sign a Stock Option Agreement, in the form attached hereto as Exhibit B. |
(d) | In addition, Executive will be eligible to receive options to purchase 13,200 shares of Common Stock as a bonus in lieu of cash in connection with his and the Company’s performance and progress since its emergence from bankruptcy in 2016 (the “2016 Option Grant”), subject to the terms and conditions set forth in the Company’s stock incentive plan in effect as of the Effective Date. |
(e) | Executive shall be eligible to participate in any Executive benefit plans maintained by the Company subject to the terms and conditions of such plans as they may be amended from time to time. |
(f) | Executive shall be entitled to four weeks per calendar year of vacation, to be scheduled with the approval of the Chief Financial Officer or Chief Executive Officer. Unused vacation will not roll over from one year to the next. |
(g) | Subject to Section 16, the Company shall reimburse Executive for reasonable and necessary travel and other business expenses Executive incurs that are directly related to Executive’s performance of Executive’s job duties for the Company. Such expenses shall be reimbursed after Executive presents the Company with documentation acceptable to the Company of such expenses and in accordance with the Company’s travel and business expense reimbursement policies as they may exist and be amended from time to time. |
(h) | Compensation shall only be required, and Executive’s entitlement to any of the benefits referenced in this Section 3 shall only be in effect, during the Term and any termination of Executive’s employment or of this Agreement shall terminate the Company’s obligation to compensate Executive in any manner or provide any of the benefits referenced in this Section 3 for any period following the date of Executive’s termination of employment or of this Agreement, unless otherwise required by applicable law, any applicable plan documents as they may be amended from time to time, or Section 8. All payments referenced in this Section 3 are subject to all required and/or authorized withholdings and deductions. |
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(c) | solicit for employment, employ or otherwise induce or encourage any Company employee, agent or representative to terminate his/her employment or relationship with the Company, or do anything to adversely affect the relationship between the Company and any of its employees, agents or representatives. |
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Executive acknowledges that the restrictions contained in Sections 4 and 5, in view of the nature of the Company’s business and the Company’s Confidential Information and business goodwill, are reasonable and necessary to protect the Company’s legitimate business interests and goodwill. Executive agrees that the Company shall be entitled to a temporary restraining order and injunctive relief, without the posting of bond, restraining Executive from the commission of any breach of Sections 4 and / or 5 and to recover the Company’s attorneys’ fees, witness fees, costs and expenses related to any breach or threatened breach of this Agreement or any action or proceeding brought relating to this Agreement. Nothing contained in this Agreement shall be construed as prohibiting the Company from pursuing any other remedies available to it for any breach or threatened breach, including, without limitation, the recovery of money damages. The existence of any claim or cause of action by Executive against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of Sections 4 and / or 5 of this Agreement. If Executive violates any of the restrictions contained in Section 5, the Non-Competition Period will be tolled and will not run in favor of Executive, and the Company shall have no further obligations to Executive under this Agreement. If Executive, in the future, seeks or is offered employment, or any other position with a Competing Business, Executive agrees to inform the Competing Business, before accepting employment or any other position, of the existence of the restrictions in Sections 4 and 5. Further, before taking any employment or other position with any Competing Business during the Non-Competition Period, Executive agrees to give prior written notice to the Company of the name of such Competing Business. The Company shall be entitled to advise such Competing Business of the provisions of Sections 4 and 5 (including the provision of a copy of this Agreement) and to otherwise deal with such Competing Business to ensure that the provisions of Sections 4 and 5 are enforced and duly discharged.
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7. | Termination of Employment. The employment relationship between Executive and the Company shall terminate and the Term shall terminate upon the occurrence of any one of the following events: |
(b) | Termination for Cause. The Company may terminate Executive’s employment with the Company for Cause, which termination shall be immediately effective upon written notice to Executive of such termination. “Cause” means the Company’s termination of Executive’s employment upon the occurrence of any of the following events during the Term: |
(i) | Any act of fraud, misappropriation, embezzlement or dishonesty by Executive regarding any aspect of the Company’s business; |
(ii) | The breach by Executive of this Agreement or any other agreement between Executive and the Company, which breach, if curable, Executive fails to cure within thirty (30) days after written notice thereof from the Company. If such breach is not curable, the Company need not provide Executive notice of such breach and wait any cure period before termination of Executive’s employment; |
(iii) | Executive being convicted of, or pleading no contest to, any felony or any crime of moral turpitude and which conviction or plea could, in the sole judgment of the Company, have an adverse effect on the Company, the Company’s reputation, and/or Executive’s ability to perform Executive’s job position with the Company; |
(v) | The failure or refusal of Executive to follow the reasonable lawful directives of the Company, which, if curable, Executive fails or refuses to cure within thirty (30) days after written demand to perform such directives is delivered to Executive; |
(vi) | Drug or alcohol dependency as determined by the provisions of the Americans with Disabilities Act; or |
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(vii) | Any act by Executive of gross negligence, intentional waste, disloyalty or unfaithfulness by Executive concerning the Company or any breach by Executive of Executive’s fiduciary duties to the Company or of Sections 4 or 5 of this Agreement. |
(c) | Termination by Executive for any Reason. Executive may terminate Executive’s employment with the Company during the Term for any reason upon provision of sixty (60) days advance written notice to the Company (the “Notice Period”). If Executive provides the sixty (60) days advance written notice of termination to the Company, the Company may elect for Executive to provide no further services to the Company at any point during the Notice Period. If the Company makes this election, Executive’s employment with the Company shall be terminated effective immediately on the date upon which the Company makes such election. |
(d) | Termination by the Company Without Cause. The Company may terminate Executive’s employment with the Company during the Term without Cause immediately upon written notice to Executive of such termination. |
(e) | Return of Company Property. Upon the termination of Executive’s employment with the Company for any reason whatsoever, Executive shall immediately return to the Company any and all originals and/or copies of the Company’s Confidential Information and/or any other information in his possession or control provided by or obtained from the Company, including information in the form of originals, paper copies, computer hard drives, computer disks, e-mails or any other similar or related electronic format. Executive acknowledges and agrees that such information will at all times remain the exclusive property of the Company and further acknowledges and agrees that he will be responsible for the safekeeping of any and all such information in his possession or control until it is returned to the Company. |
8. | Compensation Upon Termination. Upon the termination of Executive’s employment during the Term: |
(c) | by the Company for Cause, death or Disability, by Executive for any reason (including, without limitation, any actual or alleged constructive discharge), or by the Company for any reason during the Renewal Term, Executive shall only receive the amounts and/or benefits listed in Sections 8(a) and (b), and the Company shall not owe Executive any further compensation. |
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17. | Section 409A. This Agreement is intended to be interpreted and applied so that the payments and benefits set forth herein shall either be exempt from the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), or shall comply with the requirements of Section 409A. In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement or otherwise which constitutes a “deferral of compensation” within the meaning of Section 409A. Notwithstanding anything in this Agreement or elsewhere to the contrary, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits that constitute “non-qualified deferred compensation” within the meaning of Section 409A upon or following a termination of Executive’s employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service” within the meaning of Section 409A. With respect to any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that constitutes a “deferral of compensation” within the meaning of Section 409A, (i) the expenses eligible for reimbursement or in-kind benefits provided to Executive must be incurred during the Term, (ii) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any other calendar year, (iii) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred, and (iv) the right to payment or reimbursement or in-kind benefits may not be liquidated or exchanged for any other benefit. Notwithstanding any provision in this Agreement or elsewhere to the contrary, if on Executive’s termination of employment, Executive is deemed to be a “specified employee” within the meaning of Section 409A, any payments or benefits due upon a termination of Executive’s employment under any arrangement that constitutes a “deferral of compensation” within the meaning of Section 409A (whether under this Agreement, any other plan, program, payroll practice or any equity grant) and which do not otherwise qualify under the exemptions under Treasury Regulation section 1.409A-1 (including without limitation, the short-term deferral exemption and the permitted payments under Treasury Regulation section 1.409A-1(b)(9)(iii)(A)), shall be delayed and paid or provided to Executive in a lump sum (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) on the earlier of (x) the date which is six months and one day after Executive’s separation from service for any reason other than death, and (y) the date of Executive’s death, and any remaining payments and benefits shall be paid or provided in accordance with the normal payment dates specified for such payment or benefit. |
18. | Acknowledgement of Full Understanding. Executive acknowledges and agrees that Executive has fully read, understands and voluntarily enters into this agreement and that Executive has had an opportunity to ask questions and consult with an attorney of Executive’s choice before signing this Agreement. |
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date above first written.
EXECUTIVE: | SG BLOCKS, INC.: | |||
Signature: | /s/ Stevan Armstrong | Signature: | /s/ Paul Galvin | |
Printed Name: | Stevan Armstrong | Printed Name: | Paul Galvin | |
Date: | 3/10/17 | Title: | Chief Executive Officer |
[Signature Page to Stevan Armstrong Employment Agreement]