CLEAN WIND ENERGY, INC. DIRECTOR AND EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.5
CLEAN WIND ENERGY, INC.
DIRECTOR AND EXECUTIVE EMPLOYMENT AGREEMENT
DIRECTOR AND EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement (this “Agreement”), is made as of the 22nd day of
September 2010, by and between Clean Wind Energy, Inc., a Delaware corporation (the “Company”), and
Xxxxxxx Xxxxx (“Executive”).
Recitals
Executive is to be employed by the Company as Chief Operating Officer. The Board of Directors
of the Company recognizes Executive as a key officer of the Company, and consequently has approved
the terms and conditions of the continued employment of Executive as set forth herein and has
authorized the execution and delivery of this Agreement.
Agreement
NOW THEREFORE, for and in consideration of the foregoing and of the mutual covenants of the
parties herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Employment. The Company hereby employs Executive to serve in the capacities described
herein and Executive hereby accepts such employment and agrees to perform the services described
herein upon the terms and conditions hereinafter set forth.
2. Term. The term of Executive’s employment pursuant to this Agreement shall commence as of
the date hereof and shall terminate on the third (3rd) anniversary of the date hereof,
subject to earlier termination in accordance with Section 7 hereof and the other terms, provisions,
and conditions set forth herein (the “Term”). The Term shall be renewable for One (1) -year periods
upon the mutual agreement of the parties.
3. Position and Duties.
(a) The Executive shall serve as Chief Operating Officer of the Company. Without limiting the
general scope of the Executive’s position: (i) the Executive shall work from the corporate offices
and is also permitted to work from his office at his residence and shall report to the Board of
Directors, (ii) no other individual shall be elected or appointed as Chief Operating Officer of the
Company, and (iii) no individual or group of individuals (including a committee established or
other designee appointed by the Board) shall have any authority over or equal to the authority of
the Executive in his role as Chief Operating Officer or could have the effect of, or appear to have
the effect of, giving such authority to any such individual or group.
The Executive shall be entitled to the full protection of applicable indemnification provisions of
the certificate of incorporation and bylaws of the Company, as the same may be amended from time
to time, for his service as a director, officer and employee of the Company,
(b) If: (i) the Company materially changes the Executive’s duties and responsibilities as set
forth in Paragraph 3 (a) without his consent (including, without limitation, violation of any of
the provisions of clause (i), (ii) or (iii) of Paragraph 3 (a));
(ii) there occurs a material breach by the Company of any of its obligations under this
Employment Agreement (other than those specified in this Section 3(b)) that has not been cured
in all material respects within ten (10) days after the Executive gives notice thereof to the
Company;
(iii) there occurs a “change in control” (as hereinafter defined) of the Company or;
(iv) the Executive has not been paid for a cumulative sixty (60) day period without
Executive’s consent in excess of the period of non-payment for similar Executives,
Then the Executive shall have the right to terminate his employment with the Company, but such
termination shall not be considered a voluntary resignation or termination of such employment or
of this Employment Agreement by the Executive but rather a discharge of the Executive by the
Company without “cause” (as defined in herein).
(c) The term “change in control” means the first to occur of the following events:
(i) any person or group of commonly controlled persons acquires, directly or indirectly, fifty
percent (50%) or more of the voting control or value of the equity interests in the Company; or
(ii) the shareholders of the Company approve an agreement to merge or consolidate with another
corporation or other entity resulting (whether separately or in connection with a series of
transactions) in a change in ownership of fifty percent (50%) or more of the voting control or
value of the equity interests in the Company, or an agreement to sell or otherwise dispose of all
or substantially all of the Company’s assets (including, without limitation, a plan of
liquidation or dissolution), or otherwise approve of a fundamental alteration in the nature of
the Company’s business.
4. Compensation.
(a) Base Compensation. The Company shall pay Executive, and Executive agrees to
accept, base compensation at the rate of $175,000 per year in equal Bi-weekly installments
commencing as of November 1, 2010, through the Term of this Agreement (the “Base Compensation”).
The Base Compensation may be increased at any time during the Term of this Agreement at the
discretion of the Board of Directors. No increase in the Base Compensation shall at any time
operate as a cancellation of this Agreement; any such increase shall operate merely as an amendment
hereof, without any further action by Executive or the Company. If any such increase or increases
shall be so authorized, all of the terms, provisions and conditions of this Agreement shall remain
in effect as herein provided, except that the Base Compensation shall be deemed amended to set
forth the increased amount of such Base Compensation to Executive.
(b) Bonus Compensation. Executive shall be eligible to receive an annual bonus
(“Bonus Compensation”) following the end of each fiscal year of the Company during the Term of
Executive’s employment under this Agreement. The amount of Executive’s Bonus
Compensation, if any, shall be determined by the Board of Directors of the Company, in its sole
discretion, based upon the performance of Executive and the Company during such fiscal year.
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(c) Founder Stock. Executive shall be granted 15,000 shares of the Company’s common stock (of
100,000 shares currently authorized of which 75,000 shares have been issued) representing Founder
Stock in consideration for payment of $15.00 and the Executive’s contributions towards the
establishment of the Company. Said Founders Stock shall be issued to Executive within 60 (sixty)
days of the date of execution of this agreement. Executive’s Founder Share ownership is subject to
the following conditions during the 36 month term of this Agreement:
(i) If the Executive’s employment is terminated voluntarily at any time during the first
twelve (12) months, all Founder shares are forfeited and returned to the Company.
(ii) In the event that the Executive’s employment is terminated due to death at any time
during the first twelve (12) months of this Agreement, fifty (50%) percent of the Founder
shares will be distributed to the Executive’s designated beneficiary and the remaining shares will
be forfeited and returned to the Company.
(iii) In the event that the Executive’s employment is terminated due to death at any time
after the first twelve (12) months of this Agreement, fifty (50%) percent of the Founder
shares will be distributed to the Executive’s designated beneficiary plus an additional number of
shares equal to 1/24th of the remaining fifty (50%) percent of the founder’s shares for each month
the Executive was employed by the Company during the 13th through the 24th
month of this Agreement prior to termination. All remaining shares will be forfeited and returned
to the Company.
(iv) In the event that the Executive’s employment is terminated by disability, twenty five
(25%) of the Executive’s Founder shares are owned without condition and the remaining Founder
shares will be distributed to the Executive based on the formula of 1/36th of the
remaining seventy five (75%) percent of the founder’s shares for each month the Executive was
employed by the Company prior to termination due to disability. All remaining shares will be
forfeited and returned to the Company.
5. Benefits. (a) In General. Executive shall be eligible to participate in any
incentive, insurance, pension or other employee benefit plans approved by the Board of Directors
that now or hereafter may be made available to employees of the Company and for which Executive
will qualify according to his eligibility under the provisions thereof.(b) Paid Time Off.
During the Term of this Agreement, Executive shall be entitled to Three (3) weeks paid time off per
calendar year, to be taken at such times that do not materially interfere with the development or
operations of the Company. Any paid time off not taken during any calendar year shall not be
carried over into subsequent calendar years.
6. Expenses. During the Term, Executive shall be reimbursed for business-related expenses
incurred on behalf of the Company in accordance with the travel and entertainment expense policy of
the Company as adopted by the Board of Directors from time to time and in effect at the time the
expense was incurred. Executive agrees to maintain such records and documentation of all such
expenses to be reimbursed by the Company as the Company shall require and in such detail as the
Company may reasonably request.
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7. Termination. Executive’s employment under this Agreement may be terminated prior to
expiration of the Term of this Agreement in accordance with the following paragraphs.
(a) Mutual Agreement. Executive’s employment under this Agreement may be
terminated upon the mutual written agreement of the Company and Executive.
(b) Death or Disability. Executive’s employment under this Agreement shall be
terminated upon the death of Executive. Executive’s employment under this Agreement may be
terminated upon thirty (30) days’ written notice to Executive if Executive shall be unable to
perform his duties substantially as required by this Agreement by reason of physical or mental
disability or incapacity (from any cause or causes whatsoever) and Executive shall fail to perform
such duties substantially as required for a period of more than thirty (90) days, whether or not
continuous, in any continuous sixty (120) day period.
(c) For Cause. Executive’s employment under this Agreement may be terminated
immediately by the Company for Cause (as defined below). For purposes of this Agreement, the term
“Cause” shall mean the existence or occurrence of one or more of the following conditions or
events:
(i) if the Company’s Board of Directors determines in its discretion that the services
provided by Executive fall materially below the Company’s expectations as communicated to
Executive and are not corrected within thirty (30) days of receipt of written notice;
(ii) commission of willful and intentional acts involving gross misconduct (including,
without limitation, theft, fraud or embezzlement) on Executive’s part;
(iii) Executive’s conviction of, or plea of guilty or nolo contendere to, a felony or a crime
involving moral turpitude;
(iv) habitual drunkenness or substance abuse by Executive; or
(v) a material breach by Executive of any provision of this Agreement or of any contractual or
legal duty to the Company, including, but not limited to, the unauthorized disclosure of
confidential information, and willful material non-compliance with the written policies, guidelines
and procedures of the Company, that remains uncured after thirty (15) business days following a
written notice from the Board of Directors of the Company to cure.
(d) Without Cause. Executive’s employment under this Agreement may be terminated
by the Company at any time without Cause up thirty (30) days’ prior written notice.
(e) Change in Control. In the event of a Change in Control (as defined in 3. ( c)
herein), Executive may elect, at any time during the thirty (30) day period immediately
following such Change in Control, to deliver thirty (30) days’ written notice to the Company of his
termination of employment under this Agreement. Such termination shall not be deemed to be a
voluntary resignation by Executive.
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8. Severance — Mutual Agreement, Death or Disability, or For Cause. In the event
Executive’s employment under this Agreement is terminated (i) by reason of mutual agreement, (ii)
in connection with Executive’s death or disability, (iii) by the Company for Cause, the Company
shall pay Executive (or in the case of death, his heirs and/or personal representatives), within
thirty (30) days after the date of termination, Executive’s Base Compensation and benefits and all
expenses payable under Section Six (0) hereof through such date of termination, and the Company
shall have no further obligation to provide compensation or benefits to Executive under this
Agreement; provided, however, that to the extent that any of the Company’s benefit plans provide
rights or benefits after an employee’s termination, Executive may continue to receive such rights
or benefits in accordance with the terms of such plans. Upon dissolution or liquidation of the
Company, or upon a merger or consolidation in which the Company is not the surviving corporation,
all Options awarded to the Executive under the ESOP and not previously exercised and vested shall
become fully exercisable and vested no later than the date of such dissolution, merger or
consolidation, and the Executive shall have the right to exercise such Executive’s Options in whole
or in part at any time within the next four (4) years.
9. Severance — Without Cause. In the event Executive’s employment under this Agreement is
terminated by the Company without Cause, none of the Executive’s Founders shares shall be
cancelled. The Company shall continue to pay Executive his Base Compensation and the Company
shall pay the full cost of providing health and group life insurance for the Executive, his spouse
and eligible dependent children and any other such benefits as the Company may choose to offer the
employees of the Company until the date twelve (12) months from the date of such termination, paid
in accordance with the Company’s regular payroll practices. Within thirty (30) days after the date
of termination, the Company shall reimburse Executive for all expenses payable under Section Six
(6) hereof through such date of termination. Except as set forth in this Section 9, the Company
shall have no further obligation to provide compensation or benefits to Executive under this
Agreement; provided, however, that to the extent that any of the Company’s benefit plans provide
rights or benefits after an employee’s termination, Executive may continue to receive such rights
or benefits in accordance with the terms of such plans.
10. Confidential Information. Executive recognizes and acknowledges that he will have
access to certain confidential information of the Company and of entities with whom the Company
does business, and that such information constitutes valuable, special and unique property of the
Company and such other entities. During the Term of this Agreement and for a period of two (2)
years immediately following the date of termination of this Agreement, Executive agrees not to
disclose or use any confidential information, including without limitation, information concerning
the Company’s financial condition, research and development activities, technologies, product
designs and/or specifications, “know-how,” prices, customers, prospects, methods of doing business,
marketing and promotional activities, or any information or knowledge with respect to confidential
information or trade secrets of the Company, it being understood that such confidential information
does not include information that is publicly available unless such information became publicly
available as a result of a breach of this Agreement. Executive acknowledges and agrees that all
notes, records, reports, sketches, plans, unpublished memoranda or other documents belonging to the
Company, but held by Executive, concerning any information relating to the Company’s business,
whether confidential or not, are the property of the Company and will be promptly delivered to it
upon Executive’s leaving the
employ of the Company. Executive also agrees to execute such confidentiality agreements that the
Board of Directors may adopt, and may modify from time to time, as a standard form to be executed
by all employees of the Company, to the extent such standard forms are not materially more
restrictive than the provisions of this Agreement.
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11. Intellectual Property. Company acknowledges and agrees that all discoveries,
inventions, designs, improvements, formulas, formulations, ideas, devices, writings, publications,
study protocols, study results, computer data or programs, or other intellectual property, whether
or not subject to patent or copyright laws, which Executive shall conceive solely or jointly with
others, in the course or scope of his employment with the Company (collectively referred to herein
as “Intellectual Property”), shall be the sole and exclusive property of the Company without
further compensation to the Executive. Inventions, if any, patented or unpatented, which I made
prior to the commencement of my employment with the Company are excluded from the scope of this
Agreement. To preclude any possible uncertainty, I have set forth on Exhibit A Employee Proprietary
Information and Inventions Agreement a summary list of Inventions that I have, alone or jointly
with others, conceived, developed, or reduced to practice or caused to be conceived, developed, or
reduced to practice prior to the commencement of my employment with the Company, that I consider to
be my property or the property of third parties and that I wish to have excluded from the scope of
this Agreement. If disclosure of any such Inventions on Exhibit A would cause me to violate any
prior confidentiality agreement, I understand that I am not to list such Inventions in Exhibit A of
the Company’s Employee Proprietary Information and Inventions Agreement but am to inform the
Company that not all such Inventions have been listed for that reason. Notwithstanding the
foregoing, I hereby grant the Company a world-wide, unrestricted, perpetual, non-exclusive,
royalty-free, and irrevocable right (including the right to sublicense) to practice any Inventions
that I made prior to the commencement of my employment with the Company, whether or not such
Inventions are listed on Exhibit A of the Company’s Employee Proprietary Information and Inventions
Agreement.
12. Non-Competition; Non-Solicitation. Executive acknowledges that the services of
Executive to be rendered hereunder are of a special and unusual character that have a unique value
to the Company and the conduct of its business, the loss of which cannot adequately be compensated
by damages in an action at law. In view of the unique value to the Company of the services of
Executive for which the Company has contracted hereunder, and because of the confidential
information to be obtained by or disclosed to Executive as herein above set forth, and as a
material inducement to the Company to enter into this Agreement and to pay and make available to
Executive the compensation and other benefits referred to herein, Executive covenants and agrees as
follows:
(a) Non-Solicitation. While employed by the Company and for a period of One (1) year
thereafter, Executive shall not directly or indirectly, for himself or for any other person,
business, firm, corporation, partnership, association or other entity, attempt to employ or enter
into any contractual arrangement with any current or former employee, nonemployee instructor, or
other independent contractor performing services for the Company, unless such person has not been
employed by or otherwise performed services for the Company for a period of more than two (2)
months.
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(b) Non-Competition. While employed by the Company and for a period of One (1) year
thereafter, Executive shall not, directly or indirectly, engage in, operate, have any investment
or interest or otherwise participate in any manner (whether as an employee, officer, director,
partner, agent, security holder, creditor, consultant or otherwise) in any Competing Business (as
defined below); provided, that Executive may continue to hold securities and/or acquire, solely as
an investment, shares of capital stock or other equity securities of any company that is publicly
traded, so long as Executive does not control, acquire a controlling interest in, or become a
member of a group which exercises direct or indirect control of, more than five percent (5%) of
any class of capital stock of such company. For purposes of this Agreement, the term
“Competing Business” means any corporation, company, partnership, sole proprietorship,
business, or other person or entity that is engaged in the design, development of energy resources
and or the production of electrical energy.
Executive has carefully read and considered the provisions of Sections 10 and 12 hereof and agrees
that the restrictions set forth in such sections are fair and reasonable and are reasonably
required for the protection of the interests of the Company, its officers, directors,
shareholders, and other employees, for the protection of the business of the Company. Executive
acknowledges that he is qualified to engage in businesses other than those that are subject to
this Section 12. It is the belief of the parties, therefore, that the best protection that can be
given to the Company that does not in any way infringe upon the rights of Executive to engage in
any unrelated businesses is to provide for the restrictions described above. In view of the
substantial harm which would result from a breach by Executive of Sections 10 or 12, the parties
agree that the restrictions contained therein shall be enforced to the maximum extent permitted by
law. In the event that any of said restrictions shall be held unenforceable by any court of
competent jurisdiction, the parties hereto agree that it is their desire that such court shall
substitute a reasonable judicially enforceable limitation in place of any limitation deemed
unenforceable and that as so modified, the covenant shall be as fully enforceable as if it had
been set forth herein by the parties.
13. Remedies.
Except as provided in the next paragraph, in the event that a dispute arises between Executive
and the Company concerning any matter under this Agreement, such dispute shall be resolved through
binding arbitration which shall be conducted before three (3) impartial arbitrators. One arbitrator
shall be selected by each party and the two arbitrators who are so selected shall select the third
arbitrator. Any such arbitration shall be held in Xxxxxxxxxx County, Maryland. The arbitrators
shall reach a decision in the arbitration based on the facts of the matter and applicable law. The
Company and the Executive shall equally share all costs and fees in connection with the
arbitration.
The restrictions set forth in Sections 10 and 12 are considered to be reasonable for the
purposes of protecting the business of the Company. The Company and Executive acknowledge that the
Company would be irreparably harmed and that monetary damages would not provide an adequate remedy
to the Company if the covenants contained in Sections 10 and 12 were not complied with in
accordance with their terms. Accordingly, Executive agrees that the Company shall be entitled to
injunctive and other equitable relief to secure the enforcement of these
provisions, in addition to any other remedy which may be available to the Company. Any legal
action commenced by the Company to secure the enforcement of Section 10 and 12 shall be commenced
in Xxxxxxxxxx County, Maryland. The prevailing party in any such legal action shall be entitled to
receive from the other party reimbursement for the reasonable attorneys’ fees and expenses
incurred by the prevailing party.
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The provisions of sections 10 and 12 of this Agreement shall survive the termination of this
Agreement, regardless of the circumstances or reasons for such termination, and inure to the
benefit of the Company.
14. Notices. Any notice required or permitted to be given under this Agreement shall be
sufficient if in writing and if sent by registered mail to the addresses below or to such other
address as either party shall designate by written notice to the other:
If to Executive, to the address set forth below his signature on the signature page hereof.
If to the Company to:
Clean Wind Energy, Inc.
0000 Xxxxxxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx Xxxxxxxx, 00000
0000 Xxxxxxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx Xxxxxxxx, 00000
15. General Provisions.
(a) This Agreement contains the entire agreement of the Company and Executive, and the Company
and Executive hereby acknowledge and agree that this Agreement supersedes any prior statements,
writings, promises, understandings or commitments. No future oral statements, promises or
commitments with respect to the subject matter hereof, or other purported modification hereof,
shall be binding upon the parties hereto unless the same is reduced to writing and signed by each
party hereto.
(b) The rights and obligations of the Company under this Agreement shall inure to the benefit
of and shall be binding upon the successors and assigns of the Company. Executive may not assign
his rights and obligations under this Agreement.
(c) This Agreement shall be subject to and governed by the laws of the State of Maryland,
without regard to the conflicts of laws principles thereof.
(d) The section headings contained herein are for reference purposes only and shall not in any
way affect the meaning or the interpretation of this Agreement.
(e) The failure of any party to enforce any provision of this Agreement shall in no manner
affect the right to enforce the same, and the waiver by any party of any breach of any provision of
this Agreement shall not be construed to be a waiver by such party of any succeeding breach of such
provision or a waiver by such party of any breach of any other provision.
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(f) In the event any one or more of the provisions of this Agreement shall for any reason be
held invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be
unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a mutually
acceptable valid, and enforceable provision which comes closest to the intent of the parties.
(g) This Agreement may be executed in any number of counterparts, each of which shall
constitute an original and all of which together shall constitute one and the same instrument.
The parties have executed this Employment Agreement as of the day and year first above written.
| THE COMPANY: | ||||||
| Clean Wind Energy, Inc. | ||||||
| /s/ Xxxxxx Xxxxxxx | ||||||
| By: | Xxxxxx Xxxxxxx | |||||
| Its: | President & CEO | |||||
| EXECUTIVE: | ||||||
| /s/ Xxxxxxx Xxxxx | ||||||
| By: | Xxxxxxx Xxxxx | |||||
| Address: | 0000 Xxxx Xxxx Xxxxx | |||||
| Xxxxxxxxxxx, Xxxxxxxx 00000 | ||||||
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CLEAN WIND ENERGY, INC.
EXECUTIVE EMPLOYMENT AGREEMENT AMENDMENT
EXECUTIVE EMPLOYMENT AGREEMENT AMENDMENT
This Amendment to Executive Employment Agreement (this “Agreement”), is made as of the
22nd day of November, 2010, by and between Clean Wind Energy, Inc., a Delaware
corporation (the “Company”), and Xxxxxxx Xxxxx (“Executive”) pursuant to a resolution of all the
founding directors of Clean Wind Energy, INC., a Delaware corporation (the “Corporation”), by
unanimous written consent in lieu of an organizational meeting of the directors in accordance with
section 141(f) of the Delaware General Corporation Law.
Modification of Founder Stock Terms in Founders Employment Agreements
RESOLVED, that the Founder Stock-Section (C) sub-section (i) of the Founders Employment
Agreements dated September 22, 2010 be amended with the following changes:
(i) During the first twelve (12) months of employment; (a) If the Executive’s employment is
terminated voluntarily at any time during the first 90 days, all Founder shares are forfeited and
returned to the Company, (b) If the Executive’s employment is terminated voluntarily at any time
after the first 90 days, 90% of the Founder shares are forfeited and returned to the Company.
Executive Employment Agreement is hereby amended according to the General Provisions-Section 14
Sub-section (a) by the signature of the Executive acknowledging this Amendment.
Executive
|
Company | |||||
/s/ Xxxxxxx Xxxxx
|
/s/ Xxxxxx Xxxxxxx
|
