RETIREMENT AND SERVICES AGREEMENT
Exhibit 10.1
This Retirement and Services Agreement (the “Agreement”), dated as of May 23, 2011
(the “Effective Date”), is entered into by and between Xxxxxxx X. Xxxxx
(“Executive”) and American Superconductor Corporation, a Delaware corporation (the
“Company”).
WHEREAS, Executive and the Company have previously entered into that certain Employment
Agreement, dated as of December 4, 1991 (the “Employment Agreement”), and that certain
Amended and Restated Executive Severance Agreement, dated as of December 23, 2008 (the
“Severance Agreement”); and
WHEREAS, Executive and the Company desire to implement the succession and retirement plan that
Executive and the Company’s Board of Directors have been discussing since late 2010 and, in
connection with such plan, Executive desires to retire from his employment with the Company
effective as of June 1, 2011.
NOW, THEREFORE, in exchange for the good and valuable consideration set forth herein, the
adequacy of which is specifically acknowledged, Executive and the Company (“the parties”)
hereby agree as follows:
1. Retirement; Service Through Retirement Date. Executive’s employment with the
Company shall terminate effective as of 12:01 a.m., Eastern Time, on June 1, 2011 (such time and
date, the “Retirement Date”). Effective as of the Retirement Date, Executive shall no
longer serve as Chief Executive Officer of the Company and shall no longer serve in any officer or
other position with the Company or any of its subsidiaries or affiliates, except as specifically
provided in Section 2. Effective as of the Retirement Date, Executive shall cease to hold
any position (whether as an officer, director, manager, employee, trustee, fiduciary, or otherwise)
with, and shall cease to exercise or convey any authority (actual, apparent, or otherwise) on
behalf of, the Company and its subsidiaries, except as otherwise specifically provided in
Section 2. Between the date hereof and the Retirement Date (the “Transition
Period”), Executive shall report to and take directions from the board of directors of the
Company (the “Board”), and shall use his commercially reasonable best efforts to assist
with the transition of the duties and responsibilities of the chief executive officer of the
Company to Executive’s successor to the position of chief executive officer of the Company, as
determined by the Board (the “New CEO”). In addition, during the Transition Period
Executive shall perform such other duties as reasonably requested by the Board.
2. Service Following the Retirement Date.
(a) Service Continuation Period. Notwithstanding anything in this Agreement, the Employment
Agreement or the Severance Agreement to the contrary, for a period of twenty-four (24) months
following the Retirement Date (the “Service Continuation Period”), Executive agrees to
provide, as Senior Advisor, such transitional advisory services (“Advisory Services”) to
the Company and the New CEO, including, without limitation, advising and assisting the New CEO on
strategy, acquisitions, financings, recruiting, customers and shareholder and governmental
relations, as may be reasonably requested by the Company and/or
the New CEO from time to time during the Service Continuation Period. Notwithstanding the
foregoing, the Company may terminate the Service Continuation Period at any time upon written
notice to the Executive and the Service Continuation Period may be extended by mutual written
agreement of the Company and the Executive. Notwithstanding the foregoing, without limiting
Section 5(c), from and after the Retirement Date, the Company and the Executive intend that
the level of bona fide services which Executive shall perform for the Company pursuant to this
Section 2(a) shall not exceed nineteen percent (19%) of the average level of bona fide
services performed by Executive for the Company as the Chief Executive Officer of the Company over
the thirty-six (36) month period immediately preceding the Retirement Date.
(b) Board Service. Executive shall continue to serve, in the capacity of a non-employee
director of the Company, as Chairman of the Board (such service, the “Board Services”)
during the period (the “Board Continuation Period”) beginning on the Retirement Date and
ending on the earliest to occur of (i) the date Executive resigns from the Board, (ii) the date of
the first annual meeting of the Company’s stockholders to occur following the Retirement Date,
(iii) the date Executive is removed from the Board for cause and (iv) August 15, 2011. The Company
will maintain a directors’ and officers’ liability insurance policy that covers Executive’s service
as a member of the Board during the Board Continuation Period. Executive shall cease to serve on
the Board effective as of the date upon which the Board Continuation Period expires.
(c) Compensation. Except as otherwise expressly provided herein and notwithstanding the terms
of any other agreement or any benefit plan of the Company or its affiliates to the contrary, from
and after the Retirement Date, Executive shall not be entitled to any employee or other benefits or
compensation as a result of or in connection with providing the Advisory Services or the Board
Services pursuant to this Section 2.
3. Payments and Benefits.
(a) Provided that Executive has not revoked his release of claims arising under the Age
Discrimination in Employment Act pursuant to Section 16 and has complied with his
obligations under Section 1, Section 2 and Section 8, in each case, as
reasonably determined by the Company, the Company will pay or provide to the Executive the
following (collectively, the “Payments”), less applicable withholdings and subject to
Section 5 and Section 10(b):
(i) an amount in cash equal in the aggregate to $1,250,000, payable in fifteen (15) equal
monthly installments of $83,333.33 upon the last day of each calendar month beginning on June 30,
2011 and ending on and including August 31, 2012;
(ii) an amount in cash equal to $50,000, payable in a lump sum on September 30, 2012;
(iii) an amount in cash equal in the aggregate to $700,000, payable in fourteen (14) equal
monthly installments of $50,000 upon the last day of each calendar month beginning on April 30,
2013 and ending on and including May 31, 2014; and
(iv) for a period of 36 months following the Retirement Date (the “Benefit Continuation
Period”), the Company shall provide to Executive and Executive’s family the opportunity to
continue to receive the medical, dental and vision benefits that are provided to
- 2 -
the Company’s
active employees, in accordance with the terms and conditions of the applicable benefit plans as in
effect from time to time (to the extent such benefits can continue to be provided to the Executive
and his family, or to the extent such benefits cannot be provided to the Executive and his family,
then the cash equivalent thereof, based on the premium cost thereof to the Company, which cash
amount shall be paid proportionately over the Benefit Continuation Period, monthly in advance);
provided, however (1) that if Executive becomes reemployed with another employer and is eligible to
receive a particular type of benefit (e.g., medical benefits) from such employer on terms at least
as favorable to Executive and his family as those being provided by the Company, then the Company
shall no longer be required to provide those particular benefits to Executive and his family; and
(2) to the extent that such payments are taxable to Executive and/or extend beyond the COBRA
continuation period, then such payments shall be made monthly in advance.
(b) Executive shall continue to receive the compensation provided in this Section 3,
subject to the limitations in Section 3(a)(iv), in the event the Service Continuation
Period ends pursuant to the Executive’s death or the Company’s termination of the Executive without
Cause (as defined in the Severance Agreement) following the Retirement Date.
(c) During the Service Continuation Period, the Company shall reimburse Executive for
reasonable travel and other business expenses incurred by Executive at the request of the Company
in the performance of Advisory Services, subject to the Company’s advance review and approval of
any such expenses.
(d) In addition, the Company will pay or provide to the Executive the following (the
“Accrued Rights”) in a lump-sum cash payment on or as soon as reasonably practicable
following the Retirement Date, less applicable withholdings and subject to Section 5:
(i) Executive’s annual base salary earned through the Retirement Date and not previously paid,
(ii) any accrued vacation pay and not previously paid, and
(iii) any amounts owed to Executive as of the Retirement Date for expenses that are
reimbursable by the Company under the terms of the Employment Agreement and with respect to which
Executive shall have delivered to the Company prior to the Retirement Date documentation acceptable
to the Company.
4. Equity Awards. The outstanding stock options to purchase common stock of the
Company held by Executive on the Effective Date (the “Options”) shall continue to be
governed by the terms of the applicable plan and stock option agreement following the Effective
Date. The outstanding and unvested shares of restricted stock granted to Executive on May 12, 2009
(award number 3468) and May 12, 2010 (award number 3988) shall be forfeited on the
Retirement Date pursuant to the terms of the applicable restricted stock agreements.
5. Section 409A.
(a) No Six Month Delay. For purposes of Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”) and the U.S. Department of Treasury
- 3 -
Regulations and guidance issued or
promulgated under such section (collectively, “Section 409A”), the parties intend that the
Payments set forth in Sections 3(a)(i) and (ii) shall be treated as exempt from
Section 409A under the “short-term deferral” and/or “involuntary separation pay” exemptions and
that such payments therefore shall not be subject to the required six-month delay that would apply
if such payments constituted “non-qualified deferred compensation” under Section 409A.
(b) Separate Payments. It is intended that each installment of the payments and benefits
provided under Section 3 shall be treated as a separate payment for purposes of Section
409A.
(c) Separation from Service. For purposes of this Agreement, “Separation from
Service” shall mean Executive’s “separation from service” from the Company, within the meaning
of Section 409A(a)(2)(A)(i) of the Code and Treasury Regulation Section 1.409A-1(h), including the
applicable “default” provisions thereunder. Notwithstanding any other provision of this Agreement,
including, without limitation, Section 2, it is the intention of the parties that Executive
shall incur a Separation from Service as of the Retirement Date, and this Agreement shall be
construed, interpreted and implemented in accordance with such intention.
6. Existing Agreements. The terms and conditions of Section 4.3 of the
Severance Agreement shall survive the execution of this Agreement and shall apply to any payments
or benefits under this Agreement as if set forth in full herein. The Employee Nondisclosure and
Development Agreement by and between the Company and Executive shall remain in full force and
effect following the Retirement Date, subject to Section 18. Executive hereby waives any
and all rights under the Severance Agreement regarding the receipt of a Notice of Termination (as
defined in the Severance Agreement) in connection with the matters described herein.
7. Return of Company Property. On the Retirement Date, Executive shall return any
property of the Company (including, without limitation, proprietary information or intellectual
property) that is within Executive’s custody or control, except to the extent such property is
reasonably necessary for Executive to perform the Board Services or Advisory Services, as
determined by the Company. Executive shall return any Company property retained by Executive as
provided in the preceding sentence upon the expiration of (i) the Board Continuation Period if such
property is retained in connection with the performance of Board Services and (ii) the Service
Continuation Period if such property is retained in connection with the performance of Advisory
Services.
8. Non-Competition; Non-Solicitation; Non-Disparagement.
(a) Executive shall not, at any time during the Restriction Period (as defined below),
directly or indirectly engage in the business of, have any equity interest in or manage or operate
any person, firm, corporation, partnership or other entity or business (whether as director,
officer, employee, agent, representative, partner, security holder, consultant, proprietor, joint
venturer or otherwise) that engages in any business which competes with any portion of the Business
(as defined below) of the Company anywhere in the Restricted Area (as defined below). Nothing
herein shall prohibit Executive from being a passive owner of not more than 1% of the outstanding
equity interest in any entity that is publicly traded, so long as Executive
- 4 -
has no active
participation in the business of such entity.
(b) Executive shall not, at any time during the Restriction Period, directly or indirectly,
recruit or otherwise solicit or induce any employee, customer, subscriber or supplier of the
Company or any prospective employee, customer, subscriber or supplier of the Company (i) to
terminate its employment or arrangement with the Company, or (ii) to otherwise change its
relationship with the Company. In addition, Executive shall not, at any time during the
Restriction Period, directly or indirectly, either for Executive or for any other person or entity
employ such individual during his or her employment with the Company and for a period of six months
after such individual terminates his or her employment with the Company.
(c) Executive agrees to refrain from disparaging the Company and its affiliates, including,
without limitation, any of their respective products, services, technologies or practices, or any
of their respective directors, officers, employees, agents, representatives or stockholders, either
orally or in writing. The Company agrees to refrain, and use commercially reasonable efforts to
cause its directors and officers to refrain, from disparaging Executive, either orally or in
writing. Nothing in this Section 8(c) shall preclude either party from making truthful
statements that are reasonably necessary to comply with applicable law, regulation or legal
process.
(d) Executive acknowledges that the restrictions contained in this Section 8 (i) are
in consideration for the rights provided to Executive as set forth in this Agreement and the
Company’s past and future provision of confidential information to Executive, and (ii) represent a
fair balance of the Company’s rights to protect its Business and Executive’s right to pursue
employment. In the event the terms of this Section 8 shall be determined by any court of
competent jurisdiction to be unenforceable by reason of its extending for too great a period of
time or over too great a geographical area or by reason of its being too extensive in any other
respect, it will be interpreted to extend only over the maximum period of time for which it may be
enforceable, over the maximum geographical area as to which it may be enforceable, or to the
maximum extent in all other respects as to which it may be enforceable, all as determined by such
court in such action.
(e) As used in this Section 8, (i) the term “Company” shall include the
Company and its direct and indirect parents and subsidiaries, (ii) the term “Business”
shall mean the Business of the Company or its subsidiaries or affiliates and any business that is
competitive with the business, work or projects of the Company or its subsidiaries or affiliates,
as such business, work or projects may have been conducted or contemplated during (A) the term of
Executive’s employment with the Company or (B) the Service Continuation Period; (iii) the term
“Restricted Area” shall mean anywhere in the world and (iv) the term “Restriction
Period” shall mean the period beginning on the Retirement Date and ending on the third
anniversary of the Retirement Date.
9. Injunctive Relief. It is recognized and acknowledged by Executive that a breach of
the covenants contained in Section 8 will cause irreparable damage to the Company and its
goodwill, the exact amount of which will be difficult or impossible to ascertain, and that the
remedies at law for any such breach will be inadequate. Accordingly, Executive agrees that in the
event of a breach of any of the covenants contained in Section 8, in addition to any other
- 5 -
remedy which may be available at law or in equity, the Company will be entitled to specific
performance and injunctive relief.
10. General Release and Waiver.
(a) Release. In consideration of the Payments, Executive, on behalf of himself and his
representatives, agents, estate, heirs, successors and assigns, hereby irrevocably and
unconditionally releases, remises and discharges the Company, its officers, directors,
stockholders, affiliates (within the meaning of the Securities Act of 1933), attorneys, agents and
employees, and their respective predecessors, successors and assigns (collectively, the
“Company Releasees”), from any and all actions or causes of action, suits, claims,
complaints, liabilities, contracts, torts, debts, damages, controversies, rights and demands,
whether existing or contingent, known or unknown, arising up to and through the later of the
Retirement Date and the Effective Date out of Executive’s employment, or the termination of
Executive’s employment, with the Company, including, but not limited to, all employment
discrimination claims under the Age Discrimination in Xxxxxxxxxx Xxx, 00 X.X.X. §000 et seq., Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Americans With Disabilities Act
of 1990, 42 U.S.C. § 12101 et seq., the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., the
Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101 et seq., the Massachusetts Fair
Employment Practices Act, M.G.L. c.151B, § 1 et seq., the Massachusetts Civil Rights Act, M.G.L.
c.12, §§ 11H and 11I, the Massachusetts Equal Rights Act, M.G.L. c.93, § 102 and M.G.L. c.214, §
1C, the Massachusetts Labor and Industries Act, M.G.L. c.149, § 1 et seq., and the Massachusetts
Privacy Act, M.G.L. c.214, § 1B, all as amended, and all claims arising out of the Fair Credit
Reporting Act, 15 U.S.C. § 1681 et seq. and the Employee Retirement Income Security Act of 1974, 29
U.S.C. § 1001 et seq., all as amended; and all claims to any non-vested ownership interest in the
Company, contractual or otherwise, including, but not limited to, claims to stock or stock options.
Notwithstanding the foregoing, (i) nothing in this release prevents Executive from filing,
cooperating with, or participating in any proceeding before the U.S. Equal Employment Opportunity
Commission or a state Fair Employment Practices Agency (except that Executive acknowledges that he
may not recover any monetary benefits in connection with any such claim, charge or proceeding),
(ii) this release does not extend to any rights Executive has that arise after the later of the
Retirement Date or the Effective Date or to any rights to payments under and in accordance with the
terms of this Agreement and (iii) this release does not extend to any rights Executive may have
under the Company’s directors’ and officers’ liability insurance policy or to indemnification as an
officer
or director of the Company under the provisions of the Company’s by-laws or applicable law.
(b) Bring Down Release. As a condition to continuing to receive the Payments following the
date on which the Service Continuation Period expires, the Executive shall execute and deliver to
the Company a release in the form attached hereto as Exhibit A (the “Bring Down
Release”) on the date upon which the Service Continuation Period expires or Executive will
forfeit all remaining Payments.
11. Covenant Not to Xxx. Executive agrees that he will never xxx or file a lawsuit
against any Company Releasee including, without limitation, any lawsuit concerning or in any way
related to his employment, the termination of that employment, the compensation or benefits payable
in connection with his employment, or any other interaction with or matter
- 6 -
pertaining to the
Company Releasees, and that no such suit is currently pending. Should Executive violate any aspect
of this Section 11, Executive agrees that any suit shall be null and void. Executive also
agrees that if a claim or charge of any kind should be raised, brought, or filed in his name or on
his behalf, Executive waives any right to, and agrees not to benefit from or take, any resulting
award. This Agreement, including, without limitation, this Section 11, shall not operate
to waive or bar any claim which by express and unequivocal terms of law may not under any
circumstances be waived or barred.
12. No Other Payments. Executive understands and agrees that the Company shall make
any no other payments to Executive and shall have no other obligations to Executive, except as
described in this Agreement and that, except as otherwise set forth in this Agreement, all payments
or benefits which are provided to Executive by the Company shall terminate on the Retirement Date.
Without limiting the generality of the foregoing, Executive acknowledges and agrees that Executive
shall not be entitled to any bonus in respect of the Company’s 2010 or 2011 fiscal year or any
fiscal year during the Service Continuation Period.
13. Taxes. To the extent any taxes may be due on the payments to Executive provided
in this Agreement beyond any withheld by the Company, Executive agrees to pay them himself.
Executive further agrees to provide any and all information pertaining to Executive upon request as
reasonably necessary for the Company and other entities released herein to comply with applicable
tax laws.
14. Severability. Except as otherwise specified below, should any portion of this
Agreement (including, without limitation, Section 8) be found void or unenforceable for any
reason by a court of competent jurisdiction, the court should attempt to limit or otherwise modify
such provision so as to make it enforceable, and if such portion cannot be modified to be
enforceable, the unenforceable portion shall be deemed severed from the remaining portions of this
Agreement, which shall otherwise remain in full force and effect. If any portion of this Agreement
is so found to be void or unenforceable for any reason in regard to any one or more persons,
entities, or subject matters, such portion shall remain in full force and effect with respect to
all other persons, entities, and subject matters. In the event Executive should in the future
contend that Executive’s agreement to Section 8 hereof or release of claims pursuant to
this Agreement (including, without limitation, the Bring Down Release) is for any reason void,
imperfect, or incomplete, Executive may not pursue any claim against the Company (or any other
party intended to be released thereby) to establish the invalidity of such agreement or release, or
premised (in whole or in part) on the invalidity of such agreement or release, before or without
repaying to the Company the full amount of the Payments provided to Executive under this Agreement
and applicable statutes of limitations shall be deemed to run in regard to Executive’s claims
without regard to the parties’ entry into this Agreement. The preceding sentence shall not operate
to limit the scope or effect of Executive’s covenant not to xxx as set forth in Section 11.
15. Understanding and Authority. The parties understand and agree that all terms of
this Agreement are contractual and are not a mere recital, and represent and warrant that they are
competent to covenant and agree as herein provided.
16. Release of Age Discrimination Claims; Periods for Review and Reconsideration.
- 7 -
(a) Executive understands that this Agreement includes a release of claims arising under the
Age Discrimination in Employment Act. Executive understands, agrees and represents that the
covenants made herein may affect rights and liabilities of substantial extent and agrees that the
covenants and releases provided herein are in Executive’s best interest. Executive acknowledges
under penalties of perjury that (i) Executive has been and is hereby advised to consult with an
attorney prior to executing this Agreement; (ii) Executive has been given a period of twenty-one
(21) days within which to consider this Agreement; (iii) Executive has signed this Agreement free
of duress or coercion; and (iv) Executive is fully aware of his rights, and has carefully read and
fully understands all provisions of this Agreement before signing. Further, Executive represents
and warrants that in negotiating and executing this Agreement he has had an adequate opportunity to
consult with competent legal counsel of Executive’s choosing concerning the meaning and effect of
each term and provision hereof, and that there are no representations, promises, or agreements
between the Company and Executive other than those expressly set forth in writing herein.
(b) Executive further warrants that he understands that, with respect to the release of age
discrimination claims only, he has seven (7) days after signing on the second signature line below
to revoke the release of age discrimination claims by notice in writing to American Superconductor
Corporation, 00 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: General Counsel.
Notwithstanding anything in this Agreement to the contrary and except with respect to the first
$50,000 set forth in Section 3(a)(i), the Company shall have no obligation to pay any of
the amounts set forth in Section 3 in the event Executive revokes the release of age
discrimination claims, but all other provisions of this Agreement shall remain in full force and
effect.
17. Indemnification. No amendment, termination or repeal of Article VI of the
Company’s by-laws or of the relevant provisions of the Delaware General Corporation Law or any
other applicable laws shall affect or diminish in any way the rights Executive may have under the
Company’s directors’ and officers’ liability insurance policy or the rights of Executive to
indemnification under the provisions of Article VI of the Company’s by-laws with respect to
any action, suit, proceeding or investigation arising out of or relating to any actions,
transactions or facts occurring prior to the final adoption of such amendment, termination or
repeal.
18. Entire Agreement. This Agreement contains the entire agreement and understanding
between Executive and the Company concerning the matters described herein. This Agreement
supersedes all prior agreements, discussions, negotiations, understandings and proposals of the
parties concerning matters described herein, including but not limited to any rights to receive any
compensation, severance or similar payments under the Employment Agreement, the Severance
Agreement, any Award agreement or any other agreement with the Company or its subsidiaries. The
terms of this Agreement cannot be changed except in a subsequent document signed by Executive and a
duly authorized officer of the Company. The Company may assign this Agreement to any party without
Executive’s consent.
19. Choice of Law. This Agreement shall be governed by and interpreted in accordance
with the law of the Commonwealth of Massachusetts, without regard to the law of conflicts of that
state that would result in the application of the laws of any other jurisdiction.
- 8 -
20. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one instrument.
21. Voluntary Agreement. Executive represents and warrants that in negotiating and
executing this Agreement Executive has had an adequate opportunity to consult with competent legal
counsel of Executive’s choosing concerning the meaning and effect of each term and provision
hereof, and that there are no representations, promises, or agreements between the Company and
Executive other than those expressly set forth in writing herein. The parties have carefully read
this Agreement in its entirety; fully understand and agree to its terms and provisions; and intend
and agree that it is final and binding on all parties.
22. Successors. This Agreement shall be binding upon the Company and its successors
and assigns. In the event of a merger of the Company with or into, or the sale of substantially all
of the assets of the Company to, another corporation or other entity, the Company shall cause this
Agreement to be assumed the successor corporation or other entity or by an affiliate of the
successor corporation or other entity. This Agreement shall inure to the benefit of and be
enforceable by Executive’s personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Executive should die while any amount
would still be payable to Executive or his family hereunder if Executive had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to the executors, personal representatives or administrators of Executive’s estate.
23. Attorneys Fees. The Company shall pay for the reasonable and documented legal
fees incurred by Executive on or prior to the Effective Date in connection with the negotiation of
this Agreement, up to a maximum of $10,000.
[Signature Page Follows]
- 9 -
IN WITNESS WHEREOF, and intending to be legally bound, the parties have executed the foregoing
on the dates shown below.
| AMERICAN SUPERCONDUCTOR CORPORATION |
||||
| By: | /s/ Xxxxx X. Xxxxx | Date: 5/23/11 | ||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Chairman of the Compensation Committee | |||
ACKNOWLEDGEMENT (AS TO ALL CLAIMS
OTHER THAN AGE DISCRIMINATION CLAIMS)
OTHER THAN AGE DISCRIMINATION CLAIMS)
The undersigned, having had full opportunity to review this Agreement with counsel of
his choosing, signifies his agreement to the terms of this Agreement (other than as it
relates to age discrimination claims) by his signature below.
| EXECUTIVE /s/ Xxxxxxx X. Xxxxx |
Date: 5/23/11 | |||
| Xxxxxxx X. Xxxxx | ||||
ACKNOWLEDGEMENT (AGE DISCRIMINATION CLAIMS)
The undersigned, having had full opportunity to review this Agreement with counsel of
his choosing, signifies his agreement to the terms of this Agreement (as it relates to age
discrimination claims) by his signature below.
| EXECUTIVE /s/ Xxxxxxx X. Xxxxx |
Date: 5/23/11 | |||
| Xxxxxxx X. Xxxxx | ||||
EXHIBIT A
Bring Down Release
This Release Agreement (this “Agreement”), dated as of _________, 20__ (the
“Effective Date”), is made by and between Xxxxxxx X. Xxxxx (“Executive”) and
American Superconductor Corporation, a Delaware corporation (the “Company”). Capitalized
terms used but not defined in this Agreement shall have the meanings set forth in that certain
Retirement and Services Agreement, dated as of May 23, 2011, by and between Executive and the
Company (the “Retirement Agreement”).
WHEREAS, Executive and the Company have previously entered into the Retirement Agreement;
WHEREAS, pursuant to the terms of the Retirement Agreement, Executive’s right to continue to
receive Payments following the date upon which the Service Continuation Period expires is
contingent upon Executive executing and delivering this Agreement to the Company on such date; and
WHEREAS, Executive and the Company wish to resolve any and all disputes, claims, complaints,
grievances, charges, actions, petitions, and demands that Executive may have against the Company
and any of the Company Releasees (as defined below) including, but not limited to, any and all
claims arising out of or in any way related to Executive’s employment or other service relationship
with or separation from the Company or its subsidiaries or affiliates.
NOW, THEREFORE, in consideration of the Company’s agreement to continue to provide the
Payments as set forth in the Retirement Agreement and the mutual promises made herein, the Company
and Executive hereby agree as follows:
1. General Release and Waiver. Executive, on behalf of himself and his
representatives, agents, estate, heirs, successors and assigns, hereby irrevocably and
unconditionally releases, remises and discharges the Company, its officers, directors,
stockholders, affiliates (within the meaning of the Securities Act of 1933), attorneys, agents and
employees, and their respective predecessors, successors and assigns (collectively, the
“Company Releasees”), from any and all actions or causes of action, suits, claims,
complaints, liabilities, contracts, torts, debts, damages, controversies, rights and demands,
whether existing or contingent, known or unknown, arising up to and through the Effective Date out
of Executive’s employment, or the termination of Executive’s employment, with the Company,
including, but not limited to, all employment discrimination claims under the Age Discrimination in
Xxxxxxxxxx Xxx, 00 X.X.X. §000 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq., the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., the Family
and Medical Leave Act, 29 U.S.C. § 2601 et seq., the Worker Adjustment and Retraining Notification
Act, 29 U.S.C. § 2101 et seq., the Massachusetts Fair Employment Practices Act, M.G.L. c.151B, § 1
et seq., the Massachusetts Civil Rights Act, M.G.L. c.12, §§ 11H and 11I, the Massachusetts Equal
Rights Act, M.G.L. c.93, § 102 and M.G.L. c.214, § 1C, the Massachusetts Labor and Industries Act,
M.G.L. c.149, § 1 et seq., and the Massachusetts Privacy Act, M.G.L. c.214, § 1B, all as amended,
and all claims arising out of the Fair Credit
A-1
Reporting Act, 15 U.S.C. § 1681 et seq. and the Employee Retirement Income Security Act of
1974, 29 U.S.C. § 1001 et seq., all as amended; and all claims to any non-vested ownership interest
in the Company, contractual or otherwise, including, but not limited to, claims to stock or stock
options. Notwithstanding the foregoing, (a) nothing in this release prevents Executive from filing,
cooperating with, or participating in any proceeding before the U.S. Equal Employment Opportunity
Commission or a state Fair Employment Practices Agency (except that Executive acknowledges that he
may not recover any monetary benefits in connection with any such claim, charge or proceeding), (b)
this release does not extend to any rights Executive has that arise after the Effective Date or to
any rights to payments after the date hereof that arise under the Retirement Agreement and (c) this
release does not extend to any rights Executive may have under the Company’s directors’ and
officers’ liability insurance policy or to indemnification as an officer or director of the Company
under the provisions of the Company’s by-laws or applicable law.
2. Severability. In the event that any provision or any portion of any provision
hereof or any surviving agreement made a part hereof becomes or is declared by a court of competent
jurisdiction or arbitrator to be illegal, unenforceable, or void, this Agreement shall continue in
full force and effect without said provision or portion of provision.
3. No Oral Modification. This Agreement may only be amended in a writing signed by
Employee and a duly authorized officer of the Company.
4. Voluntary Agreement. Executive represents and warrants that in negotiating and
executing this Agreement Executive has had an adequate opportunity to consult with competent legal
counsel of Executive’s choosing concerning the meaning and effect of each term and provision
hereof, and that there are no representations, promises, or agreements between the Company and
Executive other than those expressly set forth in writing herein or in the Retirement Agreement.
The parties have carefully read this Agreement in its entirety; fully understand and agree to its
terms and provisions; and intend and agree that it is final and binding on all parties.
5. Choice of Law. This Agreement shall be governed by and interpreted in accordance
with the law of the Commonwealth of Massachusetts, without regard to the law of conflicts of that
state that would result in the application of the laws of any other jurisdiction.
[Signature Page Follows]
A-2
IN WITNESS WHEREOF, and intending to be legally bound, the parties have executed this
Agreement as of the date first set forth above.
| AMERICAN SUPERCONDUCTOR CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| EXECUTIVE |
||||
| Xxxxxxx X. Xxxxx | ||||
A-3
