EMPLOYMENT AGREEMENT
Exhibit
10.4
This
EMPLOYMENT AGREEMENT
(the “Agreement”)
is dated as of February 11, 2010 (the “Effective
Date”) between WINDTAMER
CORPORATION, a New York corporation (the “Company”),
and Xx. Xxxxxxx Xxxxx (“Xx. Xxxxx”
or “Executive”).
R
E C I T A L S:
WHEREAS, the Company is in the
business of developing, manufacturing, licensing and selling wind
turbines;
WHEREAS, the Company currently
engages Xx. Xxxxx as its Vice President of Investor Relations and Executive
Assistant to the Chairman, and desires to continue to engage Xx. Xxxxx as its
Vice President of Investor Relations and Executive Assistant to the Chairman on
the terms and conditions set forth herein;
WHEREAS, amounts paid pursuant
to this Agreement are intended to qualify as performance-based compensation
under Section 162(m) of the Internal Revenue Code (“Code”); and
WHEREAS, Xx. Xxxxx desires to
accept such employment on the terms and conditions set forth
herein.
P
R O V I S I O N S:
NOW, THEREFORE, in
consideration of the mutual promises and covenants set forth herein, the parties
agree as follows:
1. Employment;
Duties.
(a) The
Company hereby agrees to employ Xx. Xxxxx as its Vice President of Investor
Relations and Executive Assistant to the Chairman effective on the Effective
Date. Xx. Xxxxx hereby accepts such employment. Xx. Xxxxx
will report to the Company’s Chief Executive Officer with respect to her duties
as the Vice President of Investor Relations and shall report to the Chairman
with respect to her duties as the Executive Assistant to the
Chairman. Xx. Xxxxx will perform those duties and have such authority
and powers as are customarily associated with her positions of Vice President of
Investor Relations and Executive Assistant to the Chairman, and such other
duties as the Chief Executive Officer, with respect to her duties as Vice
President of Investor Relations, or the Chairman, with respect to her duties as
Executive Assistant to the Chairman, may reasonably request from time to
time.
(b) Xx.
Xxxxx shall be employed on a full time basis and shall devote substantially all
of her professional business time to the performance of her duties.
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2. Term. The
term (the “Term”) of
this Agreement shall commence on the Effective Date (the “Start
Date”), and shall continue for three (3) years from the Start Date unless
otherwise terminated as provided herein (together with any Renewal Term, as
hereafter defined, shall be referred to as the “Term”). This
Agreement shall automatically be extended for successive one (1) year terms
pursuant to the terms and conditions of this Agreement (each, a “Renewal
Term”), unless otherwise terminated by written notice from one party to
the other no less than sixty (60) days prior to the end of the Term or any
subsequent Renewal Term.
3. Compensation.
(a) In
consideration for the services rendered by Xx. Xxxxx on behalf of the Company
during the Term, the Company shall pay Xx. Xxxxx, commencing on the Start Date,
an annual salary of $120,000 for position of Vice President of Investor
Relations (the “IR Base
Salary”) and an annual salary of $30,000 for the position of Executive
Assistant to the Chairman (the “EA Base
Salary,” and together with the IR Base Salary, the “Base
Salary”), payable in accordance with the Company’s regular payroll
practices. All forms of compensation referred to in this Agreement
are subject to withholding for applicable federal, state and local
taxes.
(b) At any
time during the Term, either the Company or Xx. Xxxxx may provide the other
party written notice that such party desires to terminate Xx. Xxxxx’x position
of Executive Assistant to the Chairman (the “EA Termination
Notice”). One business day after receipt by the receiving
party of the EA Termination Notice, Xx. Xxxxx shall cease being employed as the
Executive Assistant to the Chairman and shall cease receiving the EA Base
Salary. Nothing in this Section 3(b) shall affect Xx. Xxxxx’x duties
as the Vice President of Investor Relations or the IR Base Salary.
4. Benefits. In
addition to the compensation set forth above, the Company shall provide Xx.
Xxxxx with the following benefits during the Term:
(a) Xx.
Xxxxx shall be entitled to four (4) weeks of vacation during each
calendar year (pro-rated for any partial calendar year) that she is employed
hereunder during which vacation her annual salary shall be paid in
full. Any vacation not taken by Xx. Xxxxx shall not carryover into
the succeeding year. All unused and accrued vacation shall be paid to
Xx. Xxxxx (or her estate) upon Xx. Xxxxx’ termination of
employment. Such vacation may only be taken at such time or times as
are not inconsistent with the reasonable business needs of the
Company.
(b) The
Company shall provide Xx. Xxxxx with up to 5 days of paid sick leave each
calendar year (pro-rated for any partial calendar year); unused sick days shall
not carryover into the succeeding year. The Company also shall
provide Xx. Xxxxx with holiday pay as provided by the Company to its other
executives.
(c)
The Company shall make available family medical insurance for Xx. Xxxxx under
the medical insurance plan provided to other executives of the Company or a
substantially similar plan. In addition, Xx. Xxxxx and her dependents shall be
entitled to participate in such other benefits as may be extended to active
employees of the Company and their dependents including retirement,
profit-sharing, 401(k), group insurance, hospitalization, medical or other
benefits made available by the Company to its employees
generally. Further, in the event that the Company desires to obtain
“key man” life insurance on the life of Xx. Xxxxx during the Term, Xx. Xxxxx
shall cooperate with the Company in obtaining such insurance.
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5. Expenses. Xx.
Xxxxx will be entitled to be paid or reimbursed according to Internal Revenue
Service (“IRS”) guidelines for all expenses reasonably incurred by her in
connection with Xx. Xxxxx’ responsibilities to the Company, including, without
limitation, for travel, lodging, food, and entertainment.
6. Confidential
Information. Xx. Xxxxx shall not, during the Term or at anytime during
the five (5) years after termination of her employment, disclose, except as
required or necessary in the course of her employment by the Company or as
otherwise authorized by the Company, any Confidential Information (as defined
herein). “Confidential
Information” shall mean any information existing as of the date of this
Agreement, or thereafter developed, in which the Company has a proprietary
interest, including, but not limited to, information relating to its patents,
technology, research and development, technical data, trade secrets, know-how,
products, services, finances, operations, sales and marketing, customers and
customer information, licenses, orders for the purchase or sale of products,
personnel matters and/or other information relating to the Company, whether
communicated orally, electronically or in writing, or otherwise obtained by Xx. Xxxxx as a result of
her employment, or through observation or examination of the Company’s
business.
Notwithstanding
the above, Confidential Information does not include any information provided by
the Company to Xx. Xxxxx which:
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a.
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is
known by Xx. Xxxxx or available to Xx. Xxxxx prior or subsequent to the
time of disclosure to Xx. Xxxxx, and was not obtained, directly or
indirectly, from the Company or from a source that is not bound by a duty
of confidentiality with respect to such
information;
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b.
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at
the time of disclosure was or subsequently becomes generally available to
the public through no wrongful or unauthorized act of Xx.
Xxxxx;
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c.
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is
discovered or developed independently by Xx. Xxxxx without use of the
Confidential Information; or
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d.
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is
furnished to any third party by the Company without imposing restrictions
similar to the restrictions imposed on Xx.
Xxxxx.
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7. Non-Competition
Covenant; Non Solicitation Covenant.
(a) During
the Term and for a period of one year thereafter, Xx. Xxxxx agrees that she will
not, directly or indirectly (including, without limitation, whether as
consultant, an officer, employee or director), engage in any business that
manufactures, sells, designs, develops or distributes wind turbines or any
business competing directly with the business in which the Company or those
businesses operated or provided by the Company at such time.
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(b) Notwithstanding
anything herein to the contrary, Xx. Xxxxx shall not be prevented or limited
from (i) investing in the stock or other securities of any corporation whose
stock or securities are publicly owned and regularly traded on any public
exchange, (ii) serving as a director, officer or member of professional, trade,
charitable and civic organizations, or (iii) passively investing (not to exceed
being a beneficial owner of more than 1% of the outstanding Common Stock) her
assets in such a form and manner as will not conflict with the terms of this
Agreement and will not require services (whether as consultant, an officer,
employee or director) on the part of Xx. Xxxxx in the operation of the business
of the entities in which such investments are made.
(c) In
furtherance of the foregoing, Xx. Xxxxx shall not, during the aforesaid period
of non-competition as provided in Section 7(a), directly or indirectly, in
connection with any business involved in the manufacture, sale, design,
development or distribution of wind turbines, or any business competing directly
with the business in which the Company was engaged, or in the process of
developing during Xx. Xxxxx’ tenure with the Company, or solicit any customer or
employee of the Company who was a customer or employee of the Company during the
tenure of her employment.
(d) Xx.
Xxxxx agrees that the prohibitions contained herein are reasonable and valuable
to the Company, and are express conditions of the Company’s decision to employ
her. If any court shall hold that the duration, scope or any other provision of
non-competition or any other restriction contained in this Section 7 is
unenforceable, it is our intention that same shall not thereby be terminated but
shall be deemed amended to delete therefrom such provision or portion
adjudicated to be invalid or unenforceable or, in the alternative, such
judicially substituted term may be substituted therefore.
8. Termination
of Agreement. This Agreement shall terminate upon the
occurrence of the following events:
(a) This
Agreement shall terminate upon Executive’s death.
(b) The
Company may terminate this Agreement upon Executive’s “total disability” (“Disability”),
which shall mean incapacity due to physical or mental illness or disability,
which renders her absent, or unable to perform her duties hereunder on a full
time basis for a period of six (6) months, whether consecutive or cumulative,
within any twelve (12) month period.
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(c) The
Company may terminate this Agreement for “Good Cause” (as defined below) upon
thirty (30) days prior written notice to Executive, subject to any applicable
time to cure, which notice shall specify the reason(s) for
termination. For purposes of this Agreement, “Good
Cause” means (i) willful disobedience by the Executive of a material and
lawful instruction of the Board of Directors or the Chief Executive Officer of
the Company; (ii) conviction of the Executive of any misdemeanor involving fraud
or embezzlement or similar crime or any felony; (iii) an order is entered by the
Securities and Exchange Commission, a state regulatory agency or an exchange on
which the Company’s securities are traded finding that Executive has violated
the securities laws; (iv) breach by the Employee of any material term, condition
or covenant of this Agreement; (v) excessive absences from work, other than for
illness or Disability. In the case of any breach of Sections 8 (c)
(i), (iv) or (v) which is capable of being cured, termination will not occur
unless the breach is not cured within thirty (30) days after Company has
provided Executive with written notice thereof.
(d) Executive
may terminate this Agreement upon thirty (30) days prior written notice to the
Company.
(e) This
Agreement may be terminated upon the mutual agreement of Company and
Executive.
9.
Obligations
Following Termination of Agreement.
(a) If this
Agreement is terminated pursuant to Section 8, the Company shall have no
obligation to pay any Severance Payments (as defined below) or benefits to
Executive; provided, however, Company shall be obligated to pay Executive (or in
the case of her death, her spouse, estate or representative) all unpaid salary,
earned bonuses, vacation and other benefits accrued through the date of
termination of this Agreement and shall provide such other benefits, such as
health insurance continuation in the manner required by Section 4980B of
the Code or other applicable law (“COBRA
Coverage”).
(b) If this
Agreement is terminated by Company without “Good Cause” as defined in Section
8:
(i) Executive
shall be paid all unpaid salary, earned bonuses, vacation and other benefits
accrued through the date of termination and shall receive such other benefits,
as may be required by statute, such as health insurance continuation coverage
under COBRA;
(ii) Executive
shall receive as severance payment an amount equal to the Executive’s annual
salary at the rate in effect as of the date of Executive’s termination for the
remainder of the Term; provided, however, the aggregate amount of such severance
payments shall not be less than two times the Executive’s annual
salary. Any severance payments are payable on normal pay dates during
the remainder of the Term in accordance with the Company’s pay policies in
effect prior to termination date. In addition, for the twelve (12)
month period immediately after the termination of this Agreement, Company shall
continue to provide and pay the premium for the health insurance provided to
Executive (and her family, if applicable) immediately prior to the termination
of this Agreement and the Company shall take such actions as are necessary to
cause such COBRA Coverage not to be offset by the provision of benefits under
this Section 9(b)(ii) and to cause the period of COBRA Coverage under the
Company’s health insurance to commence at the end of the twelve (12) month
period. The Executive shall be responsible for the payment of any COBRA premium
during the subsequent continuation period (collectively, the payments under this
clause (ii) are referred to as “Severance
Payments”);
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(iii) Executive
shall not be required to mitigate damages of the amount of any salary
continuation payments provided for under this Section by seeking other
employment or otherwise, nor shall the amount of any payments provided for under
this Section be reduced by any compensation earned by Executive as a result of
employment by another employer or by any self employment after the date of
termination;
(iv) All
options for Company capital stock and restricted stock granted to Executive
pursuant to the Company’s 2008 Equity Incentive Plan including, without
limitation, those granted pursuant to Section 3(c) hereof, or otherwise, that
remain unvested shall immediately vest, and Executive shall have a period of 120
days following termination to exercise her vested options, subject to the
provisions of the Company’s 2008 Equity Incentive Plan and applicable IRS
regulations (provided that any delays in payment or settlement set forth in such
grant or award agreements that are required under Section 409A of the Code
shall remain effective).
(c) Upon the
termination of this Agreement for any reason, any and all restrictions (other
than restrictions which are the result of applicable Federal securities laws and
regulations and those restrictions which Executive has entered into with a third
party on a contractual basis) on the transfer of shares of Company’s capital
stock then owned by Executive (which shall include any and all option shares
unvested at the time of the termination) shall be terminated as of the date of
termination of this Agreement.
(d) All of
the obligations of the Company set forth in this Section 9 are contingent upon
the Executive complying with the provisions of section 6 (Confidential
Information) and Section 7 (Non-Competition Covenant; Non Solicitation
Covenant). In the event that Executive does not comply with the
aforementioned sections of this Agreement, then Company shall not be obligated
to provide Executive with any of the benefits set forth in this Section
9. In the case of any breach of Sections 6 or 7 which is capable of
being cured, termination of Severance Payments will not occur unless the breach
is not cured within thirty (30) days after Company has provided Executive with
written notice specifying the breach.
(e) Notwithstanding
the foregoing provisions of this Section 9 or anything in this Agreement to
the contrary, the Medical Benefits that are not non-taxable medical benefits,
“disability pay” or “death benefit” plans within the meaning of Treasury
Regulation Section 1.409A-1(a)(5) shall be provided and administered in a
manner that complies with Treasury Regulation Section 1.409A-3(i)(1)(iv),
which requires that (i) the amount of such benefits provided during one
taxable year shall not affect the amount of such benefits provided in any other
taxable year, except that to the extent such benefits consist of the
reimbursement of expenses referred to in Section 105(b) of the Code, a
maximum, if provided under the terms of the plan providing such Medical Benefit,
may be imposed on the amount of such reimbursements over some or all of the
period in which such benefit is to be provided to the Executive, as described in
Treasury Regulation Section 1.409A-3(i)(iv)(B), (ii) to the extent
that any such benefits consist of reimbursement of eligible expenses, such
reimbursement must be made on or before the last day of the Executive’s taxable
year following the taxable year in which the expense was incurred and
(iii) no such benefit may be liquidated or exchanged for another
benefit.
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10. Indemnification. The
Company shall, to the maximum extent permitted by law, indemnify and hold
harmless Xx. Xxxxx against any and all damages, liabilities and expenses,
including, without limitation, reasonable attorneys’ fees, judgments, fines,
expenses, fees, losses, claims, settlements, and other amounts actually and
reasonably incurred in connection with any actual or threatened action, suit or
proceeding, whether civil, criminal, arbitrational, administrative or
investigative, arising by reason of Xx. Xxxxx’ employment by, or provision of
services to, the Company other than the willful violation of law by Xx.
Xxxxx. The Company agrees to obtain Directors and Officers Liability
insurance, and to include Xx. Xxxxx in the coverage of this policy during the
term of this Agreement and for a period of two (2) years thereafter, or for the
period of the applicable statute of limitation, whichever is
longer. In the alternative to continuing the insurance for the period
subsequent to Xx. Xxxxx employment, the Company shall provide a policy of
Director and Officer liability insurance that covers all claims that arose while
Xx. Xxxxx was employed, whether such claims are made during or subsequent to Xx.
Xxxxx employment. The Company shall promptly advance, prior to the
final disposition of any proceeding, promptly following request therefor, all
fees and expenses incurred by Executive in connection with such action, suit or
proceeding upon receipt of an undertaking by or on behalf of Executive to repay
said amounts if it shall be determined ultimately that Executive is not entitled
to be indemnified under the provisions of this Agreement.
11. Work-for
Hire. Except as otherwise may be agreed by the Company in
writing, in consideration of the employment of Xx. Xxxxx by the Company, and
free of any additional obligations of the Company to make additional payment to
her, Xx. Xxxxx agrees to irrevocably assign to the Company any and all
inventions, software, manuscripts, documentation, improvements or other
intellectual property whether or not protected by any state or federal laws
relating to the protection of intellectual property, relating to the present or
future business of the Company that are developed by Xx. Xxxxx prior to the
termination of her employment with the Company, either alone or jointly with
others, and whether or not developed during normal business hours or arising
within the scope of his/her duties of employment. Xx. Xxxxx agrees
that all such inventions, software, manuscripts, documentation, improvement,
trade secrets or other intellectual property shall be and remain the sole and
exclusive property of the Company and shall be deemed the product of work for
hire. Xx. Xxxxx hereby agrees to execute such assignments and other
documents as the Company may consider appropriate to vest all right, title and
interest therein to the Company and hereby appoints the Company as Xx. Xxxxx’
attorney-in-fact with full powers to execute such document itself in the event
Xx. Xxxxx fails or is unable to provide the Company with such signed
documents. This provision does not apply to an invention for which no
equipment, supplies, facility, or intellectual property or trade secret
information of the Company was used and which was developed entirely on Xx.
Xxxxx’ own time, unless (a) the invention relates (i) to the business of the
Company, or (ii) to the Company’s actual or demonstrably anticipated research or
development, or (b) the invention results from any work performed by Xx. Xxxxx
for the Company.
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12. Miscellaneous.
(a) This
Agreement:
(i) shall
constitute the entire agreement between the parties hereto and supersedes all
prior agreements, written or oral, concerning the subject matter herein between
the Company and the Xx. Xxxxx and there are no oral understandings, statements
or stipulations bearing upon the effect of this Agreement which have not been
incorporated herein;
(ii) may
be modified or amended only by a written instrument signed by each of the
parties hereto;
(iii) shall
bind and inure to the benefit of the parties hereto and their respective heirs,
successors and assigns;
(iv) may
not be assigned by either party without a written agreement signed by all
parties hereto. Any assignment not signed by all parties is null and
void; and
(b) If
any provision of this Agreement shall be held invalid or unenforceable by
competent authority, such provision shall be construed so as to be limited or
reduced to be enforceable to the maximum extent compatible with the law as it
shall then appear. The total invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof and this Agreement shall be construed in all respects as if such invalid
or unenforceable provision were omitted.
(c) This
Agreement shall be construed in accordance with and governed by the laws of the
State of New York without reference to conflict of laws
principles. Any litigation involving this Agreement shall be
adjudicated in a court with jurisdiction located in Monroe County, New York and
the parties irrevocably consent to the personal jurisdiction and venue of such
court.
(d) All
notices and other communications under this Agreement must be in writing and
must be given by personal delivery or first class mail, certified or registered
with return receipt requested, or by overnight xxxxxxx service and will be
deemed to have been duly given upon receipt if personally delivered, five (5)
days after mailing, if mailed, or upon delivery if sent by overnight courier
service, to the respective persons named below:
If to the Company:
WindTamer
Corporation
Attn: Chief
Executive Officer
000 Xxxxx
Xxxxxx
Xxxxxxx,
XX 00000
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If to Xx. Xxxxx:
000
Xxxxxxxxxxx Xxxx
Xxxxxxxxx,
XX 00000
Any party
may change such party’s address for notices by notice duly given pursuant to
this Section.
(e) This
Agreement may be executed simultaneously in one or more counterparts, each one
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. The parties may execute this Agreement
by facsimile signature.
(f) Failure
of either party at any time to require performance of any provision of this
Agreement shall not limit the party’s right to enforce the provision, nor shall
any waiver of any breach of any provision be a waiver of any succeeding breach
of any provision or a waiver of the provision itself for any other
provision.
(g) If
any provision of this Agreement, or the application of such provision to any
person or circumstance, shall be held invalid, the remainder of this Agreement,
or the application of such provision to persons or circumstances other than
those as to which it is held invalid, shall not be affected
thereby.
(h) THE
PARTIES ACKNOWLEDGE THAT XX. XXXXX AND THE COMPANY HAVE EACH BEEN ADVISED THAT
IT IS IMPORTANT FOR EACH OF THEM TO SEEK SEPARATE LEGAL ADVISE AND
REPRESENTATION IN THIS MATTER.
[Signature
Page Follows]
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IN WITNESS WHEREOF, the
parties have executed this Agreement on the day and year first above
written.
WINDTAMER
CORPORATION
By: /s/ Xxxxxx
Xxxxx
Name: Xxxxxx
Xxxxx
Title: Chief
Executive Officer
/s/ Xxxxxxx
Xxxxx
Xxxxxxx
Xxxxx
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