Exhibit 4.32
EMPLOYMENT AGREEMENT
This Employment Agreement (this “Agreement”) is entered into by and among Tactical Resources Corp., a British Columbia corporation ( “Pubco”), having its principal office at 1500 – 1055 West Georgia Street, Vancouver, BC V6E 4N7, Canada, Tactical Resources US Corp., a Texas corporation and a wholly-owned subsidiary of Pubco (the “Company”), and Man Ching (Jenny) Shen, a New Jersey resident (the “Executive”).
WHEREAS, Pubco entered into a Business Combination Agreement, dated as of August 22, 2024, as amended, with Plum Acquisition Corp. III (“Plum”) and certain related parties, pursuant to which the respective businesses of Pubco and Plum will be combined (the “Business Combination”), and upon the consummation of the Business Combination the common shares of Pubco are expected to be listed on the Nasdaq Stock Market, in each case as more particularly described in Plum’s filings with the U.S. Securities and Exchange Commission;
WHEREAS, this Agreement is conditioned upon, and shall become effective automatically upon, the closing of the Business Combination (the date of such closing, the “Effective Date”), and shall be of no force or effect if the Business Combination is not consummated; and
WHEREAS, Pubco desires to appoint the Executive to serve as the full-time Chief Financial Officer of Pubco and to cause the Company to employ the Executive, and the Executive desires to be so appointed and employed in each case effective as of the Effective Date;
NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein, and as a condition to the Executive’s employment in exchange for good and valuable consideration, the parties hereby agree as follows:
| 1. | Employment |
The Company hereby agrees to employ the Executive and the Executive hereby agrees to be employed by the Company on the terms and subject to the conditions set forth herein. This Agreement shall become effective on the Effective Date and shall continue in effect until terminated pursuant to Section 4 hereof, or until it is amended or superseded pursuant to the mutual written agreement of the parties (the “Employment Period”). References to the Executive’s “employment” hereunder shall be deemed to refer jointly to her service as CFO of Pubco and to her employment by the Company.
| 2. | Position and Duties |
(a) The Company shall employ the Executive during the Employment Period and the Executive shall serve as the full-time Chief Financial Officer of Pubco. The Executive shall report to the Chief Executive Officer of Pubco or such other person or persons who may be designated from time to time by the Board of Directors of Pubco (the “Board”). The Executive’s principal place of employment shall be Palisades Park, New Jersey on a remote basis, or such other location as mutually agreed between the Company and Executive, subject to travel in the performance of the Executive’s duties and the business of the Company Group as reasonably required by the Company (including periodic trips to the Company Group’s headquarters). The Executive shall have the duties, authority and responsibilities as are customarily associated with such position or as may be lawfully assigned to the Executive by Pubco’s Chief Executive Officer or the Board from time to time.
(b) During the Employment Period, the Executive shall perform faithfully and loyally and to the best of her abilities the duties assigned to her hereunder and shall devote her full business time, attention and best efforts to the affairs of Pubco, the Company and their respective subsidiaries and affiliated companies (collectively, the “Company Group”). The Executive may engage in charitable, civic or community activities and may serve as a director of any other business corporation if such other business corporation does not engage in any business with or compete with the Company Group in any way, and if such activities or service do not interfere with the Executive’s duties hereunder or violate the terms of any of the covenants contained in Section 5 hereof, in each case with prior written notice to the Company. The Executive agrees that the Executive owes to the Company Group both an exclusive duty of loyalty and a fiduciary duty of care, and that the Executive must comply with both Pubco’s and the Company’s code of conduct and applicable policies.
| 3. | Compensation |
(a) Base Salary. During the Employment Period, the Company shall pay to the Executive a base salary at the rate of $90,000 per year (the “Base Salary”), payable in accordance with the Company’s standard payroll practices and policies.
(b) Annual Bonus. For each fiscal year during the Employment Period, the Executive shall be eligible to be considered for a discretionary annual bonus (the “Annual Bonus”). Whether any Annual Bonus is paid in respect of any fiscal year, and the amount of any such Annual Bonus, shall be determined by the Board or the Compensation Committee of the Board in its sole and absolute discretion, and the Executive shall have no contractual right to, or target amount or formula for, any Annual Bonus. The Annual Bonus, if any, shall be subject to any terms and conditions as may be specified for the particular Company plan or program pursuant to which the Annual Bonus is granted, if applicable. The Executive must be employed by a member of the Company Group on the applicable payment date in order to receive any Annual Bonus.
(c) Equity Plan Participation. The Executive shall be eligible to participate in Pubco’s equity incentive compensation plans and programs, subject to approval by and any terms and conditions determined by the Board or Compensation Committee of the Board.
(d) Other Benefits. During the Employment Period, the Executive shall be entitled to participate in the Company’s employee benefit plans generally available from time to time to other senior executives of the Company, subject to the terms and conditions of such employee benefit plans.
(e) Expense Reimbursement. During the Employment Period, the Company shall reimburse the Executive, in accordance with the Company’s standard employee reimbursement policies and procedures, for all properly documented expenses incurred by the Executive in the performance of her duties hereunder.
(f) Federal and State Withholding. The Company shall deduct from all amounts payable to the Executive pursuant to this Agreement all applicable federal, state and local withholding and employment taxes and any other authorized payroll deductions and withholdings.
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| 4. | Termination |
(a) Death; Disability. The Company may, at its election, terminate the Executive’s employment upon written notice to the Executive if the Executive, due to physical or mental incapacity or disability, fails to or is unable to perform the functions of her position as required of her hereunder. Upon the Executive’s death or disability, the Executive’s and her heirs’, executors’ and administrators’ right to compensation and other benefits under this Agreement shall cease, except for any accrued and unpaid salary and bonus compensation and other benefits (including vested equity awards) that the Executive may be entitled upon termination of employment and any qualified expense reimbursements as of the termination date, in accordance with the terms of the plans and programs of the Company (collectively, the “Accrued Amounts”).
(b) Cause. The Company Group may, at its election, terminate the Executive’s employment under this Agreement for Cause, at any time and with or without notice. For purposes of this Agreement, “Cause” shall mean, as determined by the Board: (i) Executive’s conviction of a felony or a crime, or plea of nolo contendere to the same, involving moral turpitude or the commission of any other act or omission involving dishonesty, theft, embezzlement or fraud, (ii) the Executive’s material breach of either Pubco’s or the Company’s governing documents or policies, including, without limitation, any code of ethics or sexual harassment policies, (iii) the Executive’s willful or bad faith breach of her fiduciary duties to the Company Group, (iv) the Executive’s gross negligence or willful misconduct in the performance of her duties hereunder, (v) the Executive’s material breach of this Agreement or breach of any material provision of this Agreement or (vi) the Executive’s refusal to carry out any legal directive from the Company Group or the Board, or willful violation of any applicable securities laws in the performance of her duties hereunder. Upon the Executive’s termination of employment for Cause, all obligations of the members of the Company Group hereunder shall cease, except for any accrued and unpaid salary or other amounts required to be paid by law.
(c) Termination without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the Company Group without Cause, or by the Executive for Good Reason, then, subject to the Executive’s execution and non-revocation of a customary separation agreement containing a release of claims furnished by the Company Group, the Executive shall be entitled to receive (i) the Accrued Amounts, (ii) twelve (12) months’ base salary continuation, (iii) subject to the Executive timely electing to continue her group health insurance benefits under the Consolidated Omnibus Reconciliation Act or applicable state law (collectively “COBRA”), reimbursements for COBRA premium payments for the twelve (12) month period immediately following the date Executive’s group health insurance benefits terminate. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following without the Executive’s consent: (i) a material diminution in the Executive’s duties or position, (ii) a material reduction in the Executive’s Base Salary or (iii) a material breach of this Agreement by the Company Group; provided, that no termination by the Executive for Good Reason shall be effective unless and until (x) the Executive has provided the Company written notice for the circumstances constituting Good Reason by no more than thirty (30) days following the initial existence of the condition(s) constituting Good Reason and has allowed the Company Group at least thirty (30) days to remedy such condition(s), (y) the Company Group has failed to remedy such condition(s) and (z) the Executive actually terminates the Executive’s employment within thirty (30) days after the expiration of the remedy period without remedy of the Good Reason condition(s) by the Company Group.
(d) Termination in Connection with a Change of Control. If, in the event of a Change of Control, the Executive’s employment is terminated without Cause by the Company Group or the successor or surviving entity on or within the twelve (12) months following the consummation of the Change of Control, then, in addition to the severance provided for in Section 4(c) and subject to the Executive’s execution and non-revocation of a release of claims furnished by the Company, the Executive shall become fully accelerated and fully vested in all of the Executive’s outstanding and unvested equity awards held by the Executive at the termination date. For purposes of this Agreement, “Change of Control” shall have the same definition as provided in Pubco’s Omnibus Equity Incentive Plan.
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(e) Upon the Executive’s termination of employment for any reason, the Executive shall be deemed to have resigned, to the extent applicable, as an officer of each member of the Company Group and as a member of the board of directors or similar body of any member of the Company Group, to the extent the Executive holds such positions.
(f) The Executive’s obligations as set forth in Section 5 of this Agreement shall continue and survive the Executive’s termination of employment.
| 5. | Confidentiality; Restrictive Covenants |
(a) For purposes of this Section 5, the following terms shall have the following meanings:
(i) “Company Information” means Company Confidential Information and the Company Trade Secrets, as both of those terms are defined below.
(ii) “Company Confidential Information” means data and information relating to the business of the Company Group (that does not rise to the status of a trade secret under applicable law) that is or has been disclosed to the Executive or of which the Executive became aware as a consequence of or through her employment and which has value to the Company Group, is not generally known to its competitors and that the Company Group otherwise maintains as confidential. Company Confidential Information shall not include any data or information that (i) has been voluntarily disclosed to the general public by the Company, (ii) has been independently developed and disclosed to the public by others or (iii) otherwise enters the public domain through lawful means.
(iii) “Company Trade Secrets” means information of the Company Group, without regard to form, including, but not limited to, technical or non technical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, product or service plans or lists of actual or potential customers, partners or suppliers that is not commonly known by or available to the public and which information (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
(b) The Executive agrees to abide by the following provisions (i) with respect to Company Confidential Information for so long as the Company Group maintains the information as confidential and (ii) with respect to Company Trade Secrets for as long as the respective information qualifies as a trade secret under applicable law:
(i) Executive will receive and hold all Company Information in trust and in strictest confidence:
(ii) Executive will protect Company Information from disclosure and will take no action causing or fail to take the action necessary to prevent, any Company Information to lose its character as Company Information; and
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(iii) Except as required by the Executive’s duties in the course of her employment , the Executive will not, directly or indirectly use any Company Information or publish, disseminate, or otherwise disclose any Company Information to any third party without the prior written consent of the Company, which may be withheld in the Company’s absolute discretion.
(c) All Company Information, including documents or tangible or intangible materials, including computer data, provided to or obtained by the Executive during the course of her employment that contain Company Information, are the property of the Company Group (collectively, the “Materials”). The Executive will not remove from the Company Group’s premises or copy or reproduce any Materials (except as the Executive’s employment may require), and at the termination of the Executive’s employment, regardless of the timing of or reason for such termination, the Executive will leave with the Company or immediately return to the Company all Materials or copies or reproductions thereof in the Executive’s possession, custody or control.
(d) Non-Disparagement. Executive agrees that during and after Executive’s employment, Executive will not make any negative comments or otherwise disparage any member of the Company Group or any of their officers, directors, agents, employees, attorneys, successors and assigns, including, without limitation, any remarks or statements that could be reasonably expected to adversely affect in any manner (i) the conduct or business of the Company Group or (ii) the business reputation or relationships of the Company Group and any of their past or present officers, directors, agents, employees, attorneys, successors and assigns.
(e) Non-Competition. For six (6) months following the Executive’s termination of employment, the Executive shall not, directly or indirectly, engage in, participate in, render any advice or services to, represent in any way or be connected with, as officer, director, partner, owner, employee, shareholder (other than as a shareholder of less than 2% of a publicly traded security), agent, sales representative, distributor, independent contractor, consultant, proprietor, stockholder or otherwise, of any Competitive Business if, to occupy such position, the Executive will be performing functions similar to those Executive performed during Executive’s tenure at the Company. For purposes of this Agreement, “Competitive Business” shall mean: any business engaged in the same primary business(es) in which the Company Group is engaged (or has taken non-de minimis steps to commence doing business) as of the Executive’s termination date.
(f) Non-Solicitation of employees and Customers. For six (6) months following the Executive’s termination of employment, the Executive shall not, directly or indirectly, on behalf of the Executive or any Competitive Business, (i) solicit or induce, or attempt to solicit or induce, or assist any third party to solicit or induce, any employee of the Company Group to leave the employ of the Company Group or (ii) induce, solicit or encourage any customer or potential customer of the Company Group to cease doing business with the Company Group (or decrease the amount of business it does with the Company Group).
(g) Cooperation. From and after the Executive’s termination of employment, the Executive shall reasonably cooperate in connection with any legal action or proceeding relating to events occurring during the Employment Period.
(h) Reasonableness; Blue Pencil. The Executive acknowledges that the geographic boundaries, scope of prohibited activities and time duration of the preceding paragraphs are all reasonable in nature and no broader than are necessary to protect the legitimate business interests of the Company Group, and the Executive acknowledges that any violation of these covenants would cause substantial and irreparable harm to the Company Group. Notwithstanding anything herein to the contrary, if a court of competent jurisdiction shall at any time deem the duration or scope of any of the provisions of this Section 5 unenforceable, the parties hereto agree that such court shall reduce the duration or scope of the applicable provision to the maximum duration or scope permissible by law.
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| 6. | Survival |
The obligations as set forth in Section 5 of this Agreement shall survive and continue in full force and effect in accordance with their respective terms, notwithstanding any termination of the Employment Period. Additionally, any provision of this Agreement, which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement, shall remain in full force and effect.
| 7. | Indemnification |
Pubco will indemnify the Executive to the fullest extent permitted by applicable law against damages in connection with the performance of her duties as an officer or executive of Pubco and the Company, other than those damages resulting from the Executive’s gross negligence or willful misconduct, or that are not indemnifiable under applicable law.
Pubco shall maintain directors’ and officers’ liability insurance covering the Executive.
| 8. | Notices |
All notices and other communications required or permitted hereunder shall be in writing and shall be deemed given when (i) delivered personally or by overnight courier to the following address of the other party hereto (or such other address for such party as shall be specified by notice given pursuant to this Section) or (ii) sent by facsimile to the facsimile number for the other party as shall be specified by notice given pursuant to this Section, with the confirmatory copy delivered by overnight courier to the address of such party pursuant to this Section 8:
If to Pubco or the Company:
Tactical Resources Corp.
Attention: Chief Executive Officer
1500 – 1055 West Georgia Street
Vancouver, BC V6E 4N7
Canada
If to the Executive, to the Executive’s most recent address on file with the Company.
| 9. | Severability |
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of any other provision of this Agreement or the validity, legality or enforceability of such provision in any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.
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| 10. | Entire Agreement |
This Agreement constitutes the entire agreement and understanding among the parties with respect to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or among the parties, written or oral, which may have related in any manner to the subject matter hereof.
| 11. | Representations |
The Executive hereby represents and warrants that the execution of this Agreement and the performance of the Executive’s obligations hereunder will not breach or be in conflict with any other agreement to which the Executive is a party or is bound and that the Executive is not now subject to any covenants against competition or similar covenants or any other obligations to any person or to any court order, judgment or decree that would affect the performance of the Executive’s obligations hereunder. The Executive will not disclose to or use on behalf of any member of the Company Group any proprietary information of a third-party without such party’s consent. The Executive further represents and warrants that the Executive shall use best efforts to comply with all applicable laws and regulations in the performance of her duties hereunder, including with respect to all U.S. securities laws and regulations and all exchange-related listing standards.
| 12. | Successors and Assigns |
This Agreement shall be binding upon, and enforceable by, the Executive and her heirs, executors, administrators, and legal representatives, and by Pubco, the Company and their respective successors and assigns. Either of Pubco or the Company may assign this Agreement, without the Executive’s consent, to any other member of the Company Group or to any successor to all or substantially all of the business or assets of Pubco, the Company or the Company Group.
| 13. | Governing Law |
Except as expressly provided for herein, this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of New Jersey without regard to principles of conflict of laws.
| 14. | Section 409A |
In addition, notwithstanding any other provision of this Agreement, it is intended that any payments or benefit which is provided pursuant to or in connection with this Agreement which is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) shall be provided and paid in such form and at such time, including, without limitation, payment only in connection with a permissible payment event as complies with the applicable requirements of Code Section 409A to avoid the unfavorable tax consequences provided therein for noncompliance. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments. If Executive is a “specified employee” (as defined in Section 409A of the Code) and any Company Group member’s stock is publicly traded on an established securities market or otherwise, then payment of any amount or provision of any benefit under this Agreement which is considered to be deferred compensation subject to Section 409A of the Code shall be deferred for six (6) months as required by Section 409A(a)(2)(B)(i) of the Code (the “409A Deferral Period”). For purposes of this Agreement, if any amount or provision of any benefit under this Agreement is considered to be deferred compensation subject to Section 409A of the Code, a termination of employment will occur if the facts and circumstances indicate that the Company and the Executive reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services Executive would perform after that date (whether as an Executive or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period (or the full period of services to the Company if the Executive has been providing services to the Company for less than thirty-six (36) months). With respect to any reimbursements or in-kind benefits provided under this Agreement, (a) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during one calendar year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other calendar year, and (b) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for other benefits.
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| 15. | Amendment and Waiver |
The provisions of this Agreement may be amended or waived only by the written agreement of the parties, and no course of conduct or failure or delay in enforcing the provisions of this Agreement shall affect the validity, binding effect or enforceability of this Agreement.
| 16. | Knowledge and Other Representations |
The parties to this Agreement have been represented by counsel and have been fully advised concerning the terms and conditions of this Agreement or have had the opportunity to be represented and so advised by counsel. The parties acknowledge that no single party may be deemed the “drafter” of this Agreement or any amendment thereto. The parties waive and relinquish their right to assert in any dispute concerning this Agreement or any amendment thereto, that the Agreement, an amendment or any part thereof was drafted by any other party for the purpose of construing such language against the alleged “drafter” or any similar doctrine of construction.
| 17. | Clawback |
The Executive acknowledges and agrees that she shall be subject to any applicable clawback or similar policy adopted or maintained by any member the Company Group covering the Executive, including pursuant to or in accordance with the Dodd-Frank Wall Street Reform and Consumer Protection Act or Sarbanes-Oxley, or otherwise, and any rules and regulations promulgated thereunder, and that the Executive shall take all action necessary or appropriate to comply with such policies (including, without limitation, entering into any further agreements, amendments or policies necessary or appropriate to implement or enforce such policies).
| 18. | Counterparts |
This Agreement may be executed in two counterparts (including by means of pdf signature pages and electronic signatures), each of which shall be deemed to be an original and both of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
| PUBCO: | |
| TACTICAL RESOURCES CORP. | |
| Authorized Representative | |
| Title | |
| Print Name | |
| COMPANY: | |
| TACTICAL RESOURCES US CORP. | |
| Authorized Representative | |
| Title | |
| Print Name | |
| EXECUTIVE: | |
| Man Ching (Jenny) Shen |
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