Exhibit 10.34
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
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This Amended and Restated Employment AGREEMENT is made and entered into as of
the 7th day of January 2000 by and between ASTROPOWER, INC. (the "Company"), a
Delaware corporation with offices at Xxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000-0000,
and XXXXX X. XXXXXXX ("Xxxxxxx"), an individual residing at 0 Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxxxx 00000.
WITNESSETH:
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WHEREAS, the Company develops and commercially exploits certain inventions and
technology relating to photovoltaic solar cells and related optoelectronic
devices and otherwise engages in the business of developing, manufacturing
marketing and selling solar cells, modules and panels, for generating solar
electric power and optoelectronic devices and performs government-funded and
other research and technology development; and
WHEREAS, the Company intends to further develop and exploit its inventions and
technology and further expand its business; and
WHEREAS, Xxxxxxx has extensive experience and abilities in the business of the
Company and has been rendering services to the Company since July 1, 1989; and
WHEREAS, Xxxxxxx is currently employed pursuant to an Employment Agreement
entered into as of April 1, 1997 the initial term of which expires March 31,
2000 (the "1997 Agreement"); and
WHEREAS, the Company wishes to continue to employ Xxxxxxx and Xxxxxxx wishes to
continue to render services to the Company subject to certain amendments to the
terms and conditions of the 1997 Agreement hereinafter provided;
NOW THEREFORE, in consideration of the mutual promises and covenants set forth
below, the Company and Xxxxxxx hereby agree that the text of the Employment
Agreement is hereby amended and restated in its entirety to read as follows,
effective as of January 7, 2000:
2. TERM, POSITION, RESPONSIBILITIES, DUTIES, AUTHORITY, TIME AND LOCATION.
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(a) Term of Employment. The term of Xxxxxxx'x employment under this
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Agreement shall commence as of the date first above written for a term ending
March 31, 2005 (the "Term") unless either the Company or Xxxxxxx elects to
terminate the Agreement prior thereto by written notice to the other party,
which written notice must be given twelve (12) months in advance of the
effective date of such termination unless this Agreement is terminated prior
thereto in accordance with other provisions of this Agreement. For example, if
the Company or Xxxxxxx desires to terminate the Agreement as of April 1, 2003,
the party which desires to terminate the Agreement must furnish written notice
to that effect by March 31, 2002.
(b) Position Responsibilities Duties and Authority. The Company shall
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employ Xxxxxxx as President and Chief Executive Office of the Company to
develop, manage, administer and direct the business of the Company. Xxxxxxx
will have overall operating and management responsibility of the Company
consistent with his background and experience. Xxxxxxx shall continue to serve
as a Director of the Company and shall also serve as a Director of any
subsidiaries of the Company if so elected by their respective shareholders.
Xxxxxxx shall, at all times, have such executive powers and authority as shall
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reasonably be required to enable him to discharge his duties in an efficient
manner, provided, however, that Xxxxxxx shall at all times be subject to the
authority of the Board of Directors of the Company.
(c) Time. Except for illness and reasonable vacation periods, Xxxxxxx will
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devote all his business time, attention, skill and efforts to the faithful
performance of his duties hereunder and the promotion of the Company's
interests. Xxxxxxx shall not be prevented from participating in charitable and
similar activities and may have personal business investments which may from the
time to time require minor portions of his time so long as such activities are
not done in a manner inconsistent with his obligations hereunder.
Subject to the provisions of paragraph 6(b) herein, Xxxxxxx shall not be
prevented from investing or trading in investments for his own account including
real estate, stocks, bonds, securities, commodities or other forms of
investments.
(d) Location. Xxxxxxx shall not be required without his consent to perform
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his duties hereunder (except for reasonable travel in connection with the
performance of such duties) at any place other than Newark, Delaware, or within
a radius of 20 miles thereof. Xxxxxxx shall not be required to perform any
services which will necessitate moving his residence from the greater Newark,
Delaware area.
3. COMPENSATION.
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(a) Base Salary. For the services to be rendered by Xxxxxxx during the
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period beginning April 1, 2000 and each 12 month period thereafter during the
Term hereof, both as an officer and Director of the Company or any of its
subsidiaries, the Company shall pay to Xxxxxxx a Base Salary ("Base Salary") of
$245,000 per annum payable in equal monthly or such other installments in
accordance with the general practice of the Company. The Board of Directors of
the Company (or a Compensation Committee thereof) will review Xxxxxxx'x salary
from time to time not less than annually, and may, but shall not be obligated
to, award increases in salary without the necessity of an express written
amendment of this Agreement, so long as such increases are in writing and signed
by a member of the Board of Directors who has been so authorized by the Board of
Directors. Any such increase shall remain in effect until the earlier of any
additional increase or the termination of this Agreement.
(b) Incentive Compensation. The Board of Directors will for each calendar
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year consider and vote upon incentive compensation for Xxxxxxx. As a benchmark,
the incentive compensation will be in the range of 30% of Xxxxxxx'x base salary
for the year.
Xxxxxxx and the Company hereby agree that in lieu of incentive compensation
for the calendar year ending December 31, 2000, Xxxxxxx is hereby granted an
individual non-statutory option to purchase 75,000 shares of the Company's
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Common Stock at an exercise price of $13.375 per share, vesting on March 31,
2001.
(c) Expenses. The Company agrees to pay or reimburse Xxxxxxx for all
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reasonable and adequately documented travel, entertainment and other business
expenses incurred by him in performing his obligations under this Agreement in
accordance with company-wide procedures as in effect from time to time.
(d) Automobile. In recognition of Xxxxxxx'x need for an automobile for
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business purposes, the Company will provide Xxxxxxx a monthly automobile
allowance of $450 in connection with his use of an automobile in the performance
of his duties hereunder and Xxxxxxx shall pay for all maintenance, repairs,
insurance, oil and gas and all costs incident thereto. The Company will
reimburse Xxxxxxx for all business related travel involving the use of his
automobile at a rate per mile in accordance with Company-wide policy as in
effect from time-to-time.
(e) Grant of Stock Options. In addition to: (i) the Base Salary
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provided for in paragraph (a) above, (ii) options to purchase 75,000 shares of
the Company's Common Stock at $5.33 per share (which number and price reflect a
1998 three for four (3 for 4) reverse stock split) that were granted under the
Company's 1989 Stock Option Plan, 37,500 of which vest on March 31, 2001 and
37,500 of which vest on March 31, 2002, and (iii) the options granted in lieu of
incentive compensation for the calendar year ending December 31, 2000 in
paragraph (b) above, Xxxxxxx is herewith granted an individual non-statutory
option to purchase 227,000 shares of the Company's Common Stock at an exercise
price of $13.375 per share. Such options shall vest as follows:
No. of Shares Date of Vesting
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23,500 March 31, 2001
23,500 March 31, 2002
60,000 March 31, 2003
60,000 March 31, 2004
60,000 March 31, 2005
Upon vesting the options shall be exercisable at any time and from time to
time in whole or in part for a period of 10 years from the date of grant.
In the event Xxxxxxx is employed for less than a full calendar year the
options shall vest as to a pro rata portion of the shares based on the actual
number of months he is employed. The Company agrees to reserve up to 302,000
shares for issuance to Xxxxxxx in connection with the options granted hereunder.
This reservation of shares is exclusive of any other shares reserved for
issuance under any Plan or otherwise to Xxxxxxx under previously granted
options.
4. PARTICIPATION IN BENEFIT PLANS. The payments provided under this Agreement
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for Xxxxxxx are in addition to any benefits to which Xxxxxxx (or his
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beneficiaries or estate) may be or become entitled to under any fringe benefit,
medical, dental or group insurance, pension, profit sharing, welfare or other
benefit plan or program of the Company, and during the period of his employment
under this Agreement, Xxxxxxx shall be eligible for all benefits and emoluments
for which key executives are eligible under every such plan or program to the
extent permissible under the general terms and provisions of such plans or
programs and in accordance with the provisions thereof.
5. ADDITIONAL OBLIGATIONS OF XXXXXXX.
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(a) Confidential Information. Xxxxxxx shall not knowingly disclose or
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reveal to any unauthorized person or, except on behalf of the company, make use
of any records, contracts, writings, data, knowledge or other information
pertaining to the business of the Company, its divisions, subsidiaries or
affiliates, obtained by him from any source whatsoever as a result of his
relationship with the Company, whether or not in written or other recorded form,
other than information which is a matter of public record, including, without
limitation, any customer or client lists, or information which relates to the
Company's personnel, present operations, or future planning, and Xxxxxxx
confirms that such information constitutes the exclusive property of the
Company. Xxxxxxx agrees that, at the time of terminating his relationship with
the Company, he will deliver to the Company all notes, notebooks, memoranda,
files, lists, records, documents and, in general, any and all material relating
to the Company's business or that of its divisions, subsidiaries or affiliates.
(b) Competition and Conflicts of Interest. Xxxxxxx while employed by the
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Company and for a period of one year from the date of termination of such
employment, shall not knowingly act or conduct himself to the detriment of the
Company, its subsidiaries or affiliates, or in a manner which is inimical or
contrary to their interests; specifically, but without limitation, he shall not
(i) engage in competition with the Company in any of the businesses in which it
may have been engaged at any time during the period of his employment under this
Agreement, or (ii) (and until the second anniversary from the date of
termination) directly or indirectly solicit, raid, entice, induce, or approach
any person who is or was, within six months prior to Xxxxxxx'x termination of
employment with the Company, an employee of the Company or of any of its
subsidiaries or affiliates to become employed by any other person, firm or
corporation.
For this purpose, the phrase "engaging in competition" shall mean directly
or indirectly owning, managing, operating, joining, controlling or participating
in or being connected with, as an officer, employee, partner, stockholder, or
otherwise, any business, individual, partnership, firm, corporation or other
entity which is a the time engaged principally or significantly in a business
which is at the time directly or indirectly in competition with the business of
the Company; provided, however, that nothing in this paragraph 6(b) shall
prohibit Xxxxxxx from acquiring or holding any issue of stock or securities of
and such entity which has any securities listed or national securities exchange,
or quoted in the daily listing of over-the-counter market securities unless he
and members of his immediate
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family collectively own, directly or indirectly, more than 2% of any class of
voting securities of any such entity at any one time.
(c) Discoveries and Inventions. If Xxxxxxx, while employed by the Company,
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makes, either solely or jointly with others, any discovery, improvement, or
invention which pertains or relates in any way to the business, products,
publications, or processes of the Company, such discovery, improvement, or
invention (whether or not of patentable nature) shall be the exclusive property
of the Company. Xxxxxxx shall execute and deliver to the Company, without
further compensation, any and all documents which the Company deems necessary or
appropriate to prepare or prosecute applications for patents upon such
discovery, improvement, or invention, to assign and transfer to the Company his
entire right, title, and interest in and to such discovery, improvement, or
invention, and patents therefor, and otherwise more fully and perfectly to
evidence the Company's ownership thereof.
(d) Failure to Perform Obligations. Xxxxxxx recognizes and acknowledges
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that the possible restrictions on his activities under this Agreement including,
without limitation, this paragraph 6, are required for the reasonable protection
of the Company.
(e) Life Insurance. At any time during the term of this Agreement, the
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Company shall have the right to insure Xxxxxxx'x life for the sole benefit of
the Company. The amount of such insurance and the type of policy taken out
shall be determined by the Company, and all premiums payable thereon shall be
the obligation of the Company. Xxxxxxx shall have no interest in any such
policy, but shall cooperate with the Company in taking out such insurance by
submitting to physical examination, by supply all information required by the
insurance company, and by executing all necessary documents, provided no
financial obligation is imposed upon him by any such documents.
6. DISABILITY OR DEATH.
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(a) In the event Xxxxxxx shall be unable to perform his duties here under
by virtue of illness or physical or mental incapacity or disability from any
cause or causes whatsoever and Xxxxxxx shall fail to perform such duties for a
period aggregating 180 calendar days within any 360 calendar day period, the
Company shall have the right upon 30 days notice, in writing, to terminate
Xxxxxxx'x employment hereunder. Xxxxxxx shall be entitled to receive all
compensation and benefits due hereunder during said 180 calendar day period and
his Base Salary (as that may have been increased as provided herein) for the
longer of what would have been the remaining term of this Agreement or 2 years
from the date of termination pursuant to this paragraph. However, if prior to
the expiration of said 30 day notice Xxxxxxx has resumed his duties, he shall
continue to be so employed and continue to receive all compensation and benefits
due hereunder. Xxxxxxx agrees that upon request of the Company he will submit
to an appropriate medical examination by a doctor designated by the Company to
confirm his disability, provided, however, that in no event will Xxxxxxx be
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considered disabled pursuant to any long term disability plan carried by the
Company.
(b) In case of Xxxxxxx'x death, this Agreement shall terminate and the
Company shall be obligated to pay to his estate, for the longer of what would
have been the remaining term of this Agreement or 2 years from the date of
death: (I) his Base Salary (as that may have been increased as provided
herein), and (ii) a pro rata portion of his incentive compensation or any other
payments which he may have earned pursuant to any benefit plan then in effect,
corresponding to the portion of the twelve month period which elapsed to the
date of death.
Any amounts payable by the Company to Xxxxxxx pursuant to paragraph (a) and
(b) shall be reduced by any payments made to Xxxxxxx on account of any Workers
Compensation benefits received by Xxxxxxx or long term disability insurance
payments made to Xxxxxxx pursuant to any disability insurance policies carried
by and paid for by the Company and in the case of death, by any death benefits
paid to Xxxxxxx'x estate from any life insurance policy on his life carried by
and paid for by the Company.
(c) If Xxxxxxx'x employment terminates as set forth in this Section 6; any
vested but unexercised options to purchase shares of the Company's Common Stock
shall continue to be exercisable in accordance with their terms and any unvested
options held by Xxxxxxx, to purchase shares of the Company's Common Stock that
by their terms vest within one year from such termination shall be exercisable
by Xxxxxxx or his legal representative in accordance with their terms.
7. TERMINATION.
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(a) Xxxxxxx'x employment hereunder shall: (I) automatically terminate upon
the expiration of his term of employment or upon his death, and (ii) may
terminate at the option of the Company upon written notice to Xxxxxxx (a)
because of his fraud, misappropriation, or the like with respect to the Company;
(b) because of his disability as set forth in paragraph 7(a) herein, or (c) if
he shall have materially breached any of his covenants herein.
(b) If Xxxxxxx'x employment is terminated by the Company for any reason
other than as set forth above, which termination can only occur by a 2/3 vote of
the Company's Board of Directors with Xxxxxxx not eligible to vote, he shall be
entitled to continue to receive his Base Salary (as that may have been increased
as provided herein) plus 30% of his Base Salary and all employee benefits
consistent with Section 89 of the Internal Revenue Code of 1986, for the shorter
of one year from the date of such termination or what would have been the
remaining term of the Agreement.
In the event of a termination of employment under this Paragraph 8(b),
Xxxxxxx shall not be under any obligation to seek other employment and there
shall not be any offset against amounts due Xxxxxxx under this Paragraph 8(b) on
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account of any remuneration attributable to any subsequent employment that
Xxxxxxx may obtain; provided that any health or welfare benefits attributable to
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subsequent employment which Xxxxxxx may receive shall offset any obligation of
the Company to provide such benefits after termination of Xxxxxxx'x employment
with the Company. Any amounts due Xxxxxxx under this Paragraph 8(b) are in the
nature of severance payments or liquidated damages, or both, and are not in the
nature of a penalty.
(c) If Xxxxxxx voluntarily terminates his employment hereunder, he shall
not be entitled to receive any compensation or benefits after the date of such
termination other than as may be required by law.
(d) Xxxxxxx agrees that with respect to any termination of his employment
here under, whether by the Company or by Xxxxxxx, he shall resign as an officer
of the Company and any of its subsidiaries.
(e) If Xxxxxxx'x employment terminates as set forth in this Section 7 for
any reason other than (a) because of his fraud, misappropriations, or the like
with respect to the Company; (b) if he shall have materially breached any of his
covenants herein: or (c) if Xxxxxxx voluntarily terminates his employment
hereunder: any vested but unexercised options to purchase shares of the
Company's Common Stock shall continue to be exercisable in accordance with their
terms and any unvested options held by Xxxxxxx, to purchase shares of the
Company's Common Stock that by their terms vest within two years from such
termination shall be exercisable in accordance with their terms.
8. RIGHTS AND BENEFITS UPON TERMINATION RESULTING FROM A CHANGE IN CONTROL. In
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the event of involuntary termination resulting from a Change in Control, Xxxxxxx
shall be entitled to the following:
(1) Options. Any unexercised options to purchase shares of the Company's
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Common Stock shall continue to be exercisable in accordance with their terms and
any unvested options to purchase shares of the Company's Common Stock held by
Xxxxxxx shall vest in full upon the occurrence of a Change in Control and shall
be exercisable in accordance with their terms.
(2) Severance Compensation.
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(a) a lump sum cash payment on the date of termination equal to one
years base salary (as that may have been increased as provided
herein) plus 30% of his Base Salary; and
(b) (i) his Base Salary (as that may have been increased as provided
herein), plus 30% of his Base Salary and (ii) any other payments
which he could have earned pursuant to any benefit plan then in
effect, from the date of termination resulting from a Change in
Control to what would have been the remaining term of this
agreement. All other
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benefits and plans shall continue without modification for the term
of this Agreement.
(3) Change in Control. For the purpose of this Agreement, a "Change in
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Control" shall be deemed to have occurred: If any "person," as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") other than a person or group of persons who are
affiliates (as such term is defined in Rule 12b-2 of the Rules and Regulations
promulgated under the Exchange Act) of the Company on the date hereof is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing 33% or
more of the combined voting power of the Company's then outstanding securities;
if as the result of, or in connection with, any tender or exchange offer, merger
or other business combination, sale of assets or contested election, or any
combination of the foregoing transactions (a "Transaction") the persons who were
Directors of the Company immediately before the Transaction shall cease to
constitute a majority of the Board of the Company or any successor to the
Company; or ( c ) if there is a Change in Control of a nature that, in the
opinion of counsel for the Company, would be required to be reported in response
to Item 1 of Form 8-K under the Exchange Act, unless three-quarters of the Board
of Directors, as constituted immediately prior to the date of the Change in
Control, decide in their reasonable discretion that no Change in Control has
occurred, Xxxxxxx not being eligible to vote in his capacity as a Director.
9. INJUNCTIVE AND OTHER RELIEF. Xxxxxxx and the Company recognize that the
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services to be rendered under this Agreement by Xxxxxxx are special, unique, and
of extraordinary character, and that in the event of the breach of the
provisions of paragraph 6(a) or 6(b) herein, the Company will be without
adequate remedy at law and will therefore be entitled to specifically enforce
such restrictions by temporary or permanent injunctive or mandatory relief
obtained in an action or proceeding instituted in any court of competent
jurisdiction without the necessity of proving damages and without prejudice to
any other remedies which it may have at law or in equity.
10. BINDING AGREEMENT. This Agreement shall be binding upon, and inure to the
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benefit of, Xxxxxxx and the Company and their heirs, executors, administrators
and, successors and assigns. This Agreement, and Xxxxxxx'x rights and
obligations here under, may not be assigned by Xxxxxxx.
11. MODIFICATION AND WAIVER.
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(a) Amendment of Agreement. This Agreement may not be modified or
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amended except by an instrument in writing signed by the parties hereto.
(b) WAIVER. No term or condition of this Agreement shall be deemed to
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have been waived, nor shall there by any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed a
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continuing waiver unless specifically stated therein, and each such waiver shall
not constitute a waiver of such term continuing waiver unless specifically
stated therein, and each such waiver shall operate only as to the specific term
or condition waived and shall not constitute a waiver of such term or condition
for the future or as to any act other than that specifically waived.
12. NOTICES. Any notice or other communication required or permitted to be
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given by any party hereto shall be given in writing either by (a) personal
delivery or, (b) by registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
To Xxxxxxx: 0 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
To Company: AstroPower, Inc.
Solar Park
Newark, Delaware 19716-2000
ATTN: Chief Financial Officer
or to such other address as may be designated in writing by the parties from
time to time during the term of this Agreement. All notices shall be effective
upon receipt after delivery in accordance with the above provisions.
13. EXHIBITS. All Exhibits attached hereto are hereby incorporated by
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reference into, and made a part of, this Agreement.
14. PROVISIONS SEPARABLE. The provisions of this Agreement are independent of
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and separable from each other, and no provisions shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other or
others of them may be invalid or unenforceable in whole or in part.
15. ENTIRE AGREEMENT. This Agreement contains the entire understanding among
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the parties hereto with respect to the subject matter hereof, and supersedes the
Xxxxxxx Agreement, as well as prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written
except as herein contained.
16. PARAGRAPH HEADINGS. The paragraph headings in this Agreement are for
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convenience only; they form no part of this Agreement and shall not affect its
interpretation.
17. GOVERNING LAW. This Agreement has been executed and delivered in the State
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of Delaware, and its validity, interpretation, performance, and enforcement
shall be governed by the laws of said State.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
and its seal to be affixed hereunto by its officers thereunto duly authorized,
and Xxxxxxx has signed this Agreement, all as of the day and year first above
written.
ATTEST: ASTROPOWER, INC,
BY /s/ Xxxxxx X. Xxxxxx
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TITLE Senior Vice President
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WITNESS:
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
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