EMPLOYMENT AGREEMENT
Exhibit 10.11
This Employment Agreement (“Agreement”) is made by and between Open Energy Corporation (the “Company”) and Xxxxx Xxxxx (“Employee”) (individually, a “party” and together, the “parties”). This Agreement shall be effective once signed by all parties.
1. Position. Employee will begin employment with the Company on November 1, 2006, as Senior Vice President of Business Development. Employee will report directly to the President. Employee’s overall responsibilities shall include: (a) strategic marketing and sales of PV products to major commercial, industrial and governmental groups; (b) development of sales distribution, finance strategies for distributed generation water and power projects; (c) cultivation of alliances, partnerships, and political relationships beneficial to the company; and (d) other responsibilities as assigned from time to time. Employee’s precise responsibilities and job description are subject to change at anytime in the sole and absolute discretion of Company. Employee shall devote substantially full time and attention to the business of the Company and shall perform all duties as may be required of Employee.
2. At Will Employment. Employee will be employed on an at-will basis. In other words, Employee may resign at anytime, with or without cause, and with or without notice. Conversely, the Company may terminate Employee’s employment any time, with or without cause, and with or without notice. The Company also retains the right to transfer, demote, suspend or administer discipline with or without cause and with or without notice, at any time. This is the entire understanding with regard to the terms in this Paragraph 2. The at-will nature of the employment relationship may only be modified in a writing signed by Employee and the Company’s President.
3. Background Check. The Company will require Employee to undergo a background check. Employee understands that failure to consent to the background check, upon receipt of all appropriate notice and consent forms, and/or failure to successfully pass a background check, will result in termination of employment.
4. Compensation. Employee’s compensation shall consist of an annual salary, discretionary bonuses, benefits, and, possibly, stock grants.
4.1 Annual Salary. The Company shall pay to Employee a base salary of $140,000. As with all compensation, the salary will be subject to standard employment and income tax withholding taxes.
4.2 Bonuses. The Company may, in its sole and absolute discretion, pay Employee a bonus payment as may be determined by the Board of Directors. The fact and the amount of the bonus will be in the Company’s sole and absolute discretion and based upon the Company’s performance and Employee’s performance.
4.3 Stock Option Grant. Following the adoption and effectiveness of an equity incentive plan by the Company, management may, in its discretion, recommend to the Board of Directors (or an authorized committee) that Employee be granted a stock option to purchase shares of common stock under the terms of such plan. The approval of this equity incentive plan will be in the sole discretion of the Board of Directors or an authorized committee,
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and the plan may also be subject to stockholder and regulatory approval. If such plan is approved and becomes effective, the terms of any grant made to you will be in the sole discretion of the Board of Directors or an authorized committee.
4.4 Benefits. Employee shall be eligible to participate in the standard fringe benefits package generally made available to other regular full-time employees, as such benefits may be determined, changed, or rescinded from time to time by the Company.
5. Expenses. The Company shall reimburse Employee for any and all expenses reasonably incurred by the Employee incurred in the course and scope of Employee’s duties and which are substantiated in accordance with Company’s reasonable policies and procedures.
6. IRC Section 409A. To the extent that this Agreement or any part thereof is deemed to be a nonqualified deferred compensation plan subject to Section 409A of the Code and the regulations and guidance promulgated thereunder, (i) the provisions of this Agreement shall be interpreted in a manner to comply in good faith with Section 409A of the Code, and (ii) the parties hereto agree to amend this Agreement, if necessary, for the purposes of complying with Section 409A of the Code promptly upon issuance of any regulations or guidance thereunder; provided that any such amendment shall not materially change the present value of the benefits payable to Executive hereunder or otherwise materially and adversely affect Executive, or the Company or any of the Related Entities, without the written consent of Executive or the Company, as the case may be
7. Nondisclosure of Confidential Information. The protection of confidential information is essential to the Company. To protect such information, Employee shall not, during the term of this Agreement or at any time thereafter, impart to anyone or use any confidential information or trade secrets Employee may acquire in the performance of Employee’s duties, except as required by law.
8. No Solicitation. Employee agrees that during Employee’s employment and for a one year period after the termination of said employment, Employee will not solicit for hire any current employees of the Company.
9. Nondisclosure of Confidential Information. Executive will hold in complete confidence and not disclose, produce, publish, permit access to, or reveal any information and material which is proprietary to Company, whether or not marked as “confidential” or “proprietary” and which is disclosed to or obtained by Executive, which relates to Company’s business activities (“Confidential Information”). Confidential Information shall not include any information which is publicly available at the time of disclosure or subsequently becomes publicly available through no fault of Executive or any of its agents or employees.
9.1 Executive will not copy, photograph, photocopy, alter, modify, disassemble, reverse engineer, decompile, or in any manner reproduce any materials containing or constituting Confidential Information without the express prior written consent of Company, and will return all Confidential Information, together with any copies thereof, promptly after the purposes for which they were furnished have been accomplished, or upon the request of
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Company. Additionally, upon request of Company, Executive will return or destroy materials prepared by Executive that contain Confidential Information.
9.2 Executive shall take all reasonable measures necessary to protect the confidentiality of the Confidential Information and to avoid disclosure or use of the Confidential Information, except as permitted herein, including the highest degree of care that Executive utilizes to protect Executive’s own confidential information. Executive shall promptly notify Company in writing of any misuse or misappropriation of Confidential Information which may come to Executive’s attention.
9.3 Disclosure of Confidential Information is not precluded if such disclosure is in response to a valid order of a court or other governmental body of the United States or any political subdivision thereof; provided that Executive will first give notice to Company and make a reasonable effort to obtain a protective order requiring that the Confidential Information be disclosed only for limited purposes for which the order was issued.
9.4 Executive shall use the Confidential Information only for the limited purpose for which it was disclosed. Executive shall not disclose the Confidential Information to any third party (including subcontractors) without first obtaining Company’s written consent and shall disclose the Confidential Information only to its own employees having a need to know. Executive shall promptly notify Company of any items of Confidential Information prematurely disclosed.
9.5 Executive agrees that Company’s Confidential Information has been developed or obtained by the investment of significant time, effort and expense and provides Company with a significant competitive advantage in its business. If Executive fails to comply with any obligations hereunder, Executive agrees that Company will suffer immediate, irreparable harm for which monetary damages will provide inadequate compensation. Accordingly, Executive agrees that Company will be entitled, in addition to any other remedies available to it, at law or in equity, to immediate injunctive relief to specifically enforce the terms of this Agreement.
9.6 The obligations set forth in this Paragraph 9 and its subparagraphs shall survive expiration or termination of this Agreement.
10. Assignment of Inventions. Executive agrees that during the Term that all inventions that are developed using equipment, supplies, facilities or trade secrets of the Company, or result from work performed by Executive for the Company (collectively “Assigned Inventions”), will be the sole and exclusive property of the Company and are hereby irrevocably assigned by Executive to the Company.
11. Assignment of Intellectual Property Rights. In addition to the foregoing assignment of Assigned Inventions to the Company, Executive hereby irrevocably transfers and assigns to the Company: (a) all worldwide patents, patent applications, copyrights, mask works, trade secrets and other intellectual property rights in any Assigned Invention, and (b) any and all “Moral Rights” (as defined below) that Executive may have in or with respect to any Assigned Invention. Executive also hereby forever waives and agrees never to assert any and all Moral
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Rights Executive may have in or with respect to any Assigned Invention, even after expiration or termination of this Agreement. For the purposes of this Agreement, “Moral Rights” mean any rights to claim authorship of an Assigned Invention to object to or prevent the modification of any Assigned Invention, or to withdraw from circulation or control the publication or distribution of any Assigned Invention, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.”
12. Work for Hire. Executive acknowledges and agrees that any copyrightable works prepared by Executive during the Term are “works for hire” under the Copyright Act and that the Company will be considered the author and owner of such copyrightable works.
13. Return of Materials. On termination of the Executive’s employment for any reason whatsoever, the Executive agrees to deliver promptly to the Company all files, forms, brochures, books, materials, written correspondence, memoranda, documents, manuals, computer disks, software products and lists of any nature whatsoever pertaining to the business of the Corporation and its affiliates and subsidiaries in the possession of the Executive or directly or indirectly under the control of the Executive and not to make for his personal or business use or that of any other person, reproductions or copies of any such property or other property of the Corporation and its affiliates and subsidiaries.
14. Human Resources Policy and Procedures. Employee agrees to review and abide by personnel policies as well as any Employee Handbook issued by Company. Employee understands that Company has the right to modify or rescind any policies and procedures for any reason and without notice, except the policy regarding at-will employment.
15. General Provisions.
15.1 Governing Law and Forum. This Agreement shall be governed in accordance with the laws of the State of California. Any disputes arising out of Employee’s employment or this Agreement shall be brought in San Diego County, California.
15.2 Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in anyway.
15.3 Entire Agreement. This Agreement contains all of the terms agreed upon by the parties with respect to the subject matter of this Agreement, and supersedes any and all prior agreements, arrangements, communications, understandings, documents or rules, either oral or in writing, between the parties for the employment of Employee, and contain all of the covenants and agreements between the parties for such employment in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party or anyone acting on behalf of any party which is not embodied in this Agreement. Any modification of this Agreement will be effective only if in writing signed by Employee and Company’s President.
SIGNATURES ON FOLLOWING PAGE
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NOVEMBER 2006 EMPLOYMENT AGREEMENT SIGNATURE PAGE
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Dated: |
11-4 |
,2006 |
OPEN ENERGY CORPORATION |
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By: |
/s/Xxxxx Xxxxxxx |
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Xxxxx X. Xxxxxxx |
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Its: |
President |
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Dated: |
November 3 |
, 2006 |
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/s/ Xxxxx Xxxxx |
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Xxxxx Xxxxx |
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AMENDMENT NO. 1
TO EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT, dated June 15, 2007 (“Amendment”), is made and entered into by and between Open Energy Corporation, a Nevada corporation (the “Company”), and Xxxxx Xxxxx, an individual (“Employee”), with reference to the following facts:
A. The Company and Employee are parties to that certain Employment Agreement, effective November 1, 2006 (“Employment Agreement”), which contains the terms and conditions of Employee’s employment by the Company.
B. The Company and Employee wish to amend certain aspects of the Employment Agreement relating to Employee’s position and compensation.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, agree as follows:
1. Amendment to Section 1 of the Employment Agreement. Section 1 of the Employment Agreement is hereby amended and restated in its entirety, as follows:
Employee will serve as Executive Vice President and Chief Operating Officer of the Company reporting directly to the Chief Executive Officer of the Company. Employee shall have such executive responsibilities and shall perform such executive services for the Company as may be consistent with his title. Employee shall devote substantially full time and attention to the business of the Company and shall perform all duties as may be required of Employee.
2. Amendment to Section 4 of the Employment Agreement. Subject to approval of the Compensation Committee and the Board of Directors of the Company, the base salary in section 4.1 is increased to $175,000, per annum as of June 8, 2007and options shall be granted in accordance with Exhibit A to this Amendment. Provided that the Company has achieved its funding and revenue targets for the period June 1 through September 30, 2007, the base salary will be increased to $225,000 as of October 1, 2007.
3. Effect. Except as and to the extent amended by this Amendment, the Employment Agreement shall remain in full force and effect in accordance with its terms.
4. Counterparts. This Amendment may be executed in two or more counterparts and by facsimile, each of which shall be considered an original instrument, but all of which together shall be considered one and the same agreement, and shall become binding when one or more counterparts have been executed and delivered by each of the parties hereto.
5. Governing Law. This Amendment shall be governed by and construed in accordance with the internal laws of the State of California applicable to a contract executed and
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performed in the State of California, without giving effect to the conflicts of laws principles thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment effective as of June 15, 2007.
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COMPANY: |
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OPEN ENERGY CORPORATION, |
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a Nevada corporation |
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By: |
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Xxxxx Xxxxxxx, |
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Chief Executive Officer |
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EMPLOYEE: |
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Xxxxx Xxxxx, an individual |
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EXHIBIT A
The Company hereby agrees to provide the Employee with options for an additional 1,000,000 shares (the “Stock Option Grant”) of the Company’s common stock, under the Company’s 2006 Equity Incentive Plan (the “Plan”), which options shall vest quarterly, based on Company performance against the agreed business plan, over three years in accordance with the standard form of Option Agreement and the provisions of the Plan .
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