PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED, AS INDICATED BY ::: Via Email: amit@::: <mailto:amit@:::>
Exhibit 10.1
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED, AS INDICATED BY :::
Via Email: amit@::: <mailto:amit@:::>
May 8, 2024
Xxxx Xxxxx
:::
Dear Amit:
This letter (“Offer Letter”) confirms that, subject to the terms of this Offer Letter, effective as of May 1, 2024 (“Effective Date”), you will transition from your current role with SolarWindow Technologies, Inc. (“Company”) into the full-time role as the Company’s President and Chief Executive Officer. The Offer Letter confirms the terms and conditions of your employment in that role. Except as set forth in Section 14.2 below, the terms set forth in this Offer Letter shall supersede and replace, in their entirety, all existing terms of any agreements, written or oral, between you and the Company relating to your engagement by the Company as a consultant or employee, shall be deemed terminated as of the Effective Date. In this Offer Letter you and the Company are sometimes referred to individually as a “Party” and collectively, as the “Parties.”
2. Devotion of Entire Time to the Business of Company.
2.1 You agree to devote your entire time and best efforts to the performance of your duties as the President and Chief Executive Officer of the Company (except for permitted vacation periods and reasonable periods of illness or other incapacity), and you shall not, directly or indirectly, engage or participate in any other employment or occupation, or in any activities which individually of in the aggregate may conflict with your duties or the best interests of the Company. Notwithstanding the foregoing, nothing herein shall preclude the Executive from: (i) serving, with the prior written consent of the Board, which consent may be withheld for any reason or no reason in the sole discretion of the Company’s Board, as a member of the board of directors or as an advisor (or their equivalents in the case of a non-corporate entity) of an entity (each an “Outside Service Capacity” and collectively, “Outside Service Capacities”), and in addition may initially serve in the Outside Service Capacities for the entities set forth on Exhibit 2 to this Offer Letter and (ii) engaging in charitable activities and community affairs. The Board expressly reserves the right to withhold its consent to additional Outside Service Capacities following the Effective Date, and, in the event of an identified conflict of interest with respect to your duties and obligations to the Company, to withdraw its consent to (i) the Outside Service Capacities set forth on Exhibit 2 to this Offer Letter in the Board’s reasonable discretion and (ii) any other Outside Service Capacity approved by the Board following the Effective Date, in the Board’s sole discretion.
2.2 In performing your duties as the Company’s President and Chief Executive Officer you shall comply with the Company’s policies and rules and standards of conduct, as they may be in effect from time to time during your employment, including but not limited to the Company’s Code of Conduct and xxxxxxx Xxxxxxx Policy, each as updated from time to time.
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3. At-Will Employment Relationship.
3.1 Your employment relationship with the Company is at-will. This means that you do not have a contract of employment for any duration or limit the grounds for your termination in any way. Accordingly, either you or the Company may terminate this Offer Letter by providing written notice of such termination to the other Party (a “Termination Notice”) in the manner described in this Offer Letter. This Offer Letter shall terminate on the sixtieth (60th) day following the date of the Termination Notice (the “Outside Termination Date”). The Company, in its sole discretion, may accelerate (the “Acceleration Right”) the termination date of your employment relationship to a date that is prior to the Outside Termination Date (as so accelerated, the “Accelerated Termination Date”); provided, however, should the Company elect to the exercise the Acceleration Right, in its Termination Notice to you or by written notice to you following its receipt of your Termination Notice to the Company, the Company shall nevertheless be obligated to pay you your prorated salary for the period between the Accelerated Termination Date and the Outside Termination Date (the “Accelerated Termination Payment”). The actual termination date of your relationship, whether the Outside Termination Date or the Accelerated Termination Date, is referred to in this Offer Letter as the “Employment Termination Date.” Upon the termination of your employment, and to the extent requested in writing by the Company, you agree to resign from all positions you may hold with the Company or any of its affiliated entities at such time, including as a member of the Board, if applicable.
3.2 Although your job duties, title, compensation, and benefits, as well as the Company’s personnel policies and procedures, may change from time to time, the “at will” nature of your employment may only be changed in an express written agreement signed by you and an officer of the Company specifically authorized by the Board to sign such agreement or by an authorized Board member.
3.3 If your employment terminates for any reason, the Company will provide you with (i) your unpaid Base Salary through the Employment Termination Date; (ii) all of your accrued, but unused paid time off time if required by law or Company policy; (iii) any unpaid expense reimbursements accrued by you as of the date of termination, (the “Accrued Obligations”). After payment of the Accrued Obligations the Company shall have no further payment obligations hereunder.
6.1 You will be eligible to receive equity awards of stock options or other equity awards (collectively, “Equity Awards”) pursuant to any plans or other arrangements the Company may have in place from time to time. The Board will determine in its sole discretion whether you will be granted any such Equity Awards and the terms of any such award in accordance with the terms of any applicable plan or other arrangement that may be in effect from time to time. As of the Effective Date, subject to your execution and delivery of the Stock Option Agreement (as defined below) you will receive a non-plan, non-statutory stock option to purchase (the “Stock Option”) up to 500,000 shares of the Company’s common stock (the “Option Shares”).
6.2 The Stock Option will be subject to your execution of the Stock Option Agreement and the terms and conditions of the standard forms of award agreements used by the Company with respect to such awards (collectively, the “Stock Option Agreement”). The Stock Option shall vest as to fifty percent (50%) of the Option Shares on the date of grant as set forth in the Stock Option Agreement (the “Date of Grant”) and as to the balance of the Option Shares on the first-year anniversary of the Date of Grant. The Stock Option shall have an exercise price per Option Share equal to the closing price of the Company’s common stock on the trading immediately preceding the Date of Grant. The Stock Option shall expire 5 years after the Date of Grant, or such earlier date following termination of your employment, as may be provided in the Stock Option Agreement. The Stock Option Agreement shall contain such other terms and conditions as are customarily included in such agreements.
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7.1 You will be eligible, but not obligated, to participate in the benefit plans and programs established by the Company for its employees from time to time, including the Company’s paid-time-off policy, subject to applicable terms and conditions. The Company reserves the right to modify, amend, suspend, or terminate the benefit plans, programs, arrangements, and policies it offers to its employees at any time.
7.2 In addition to Company approved paid Federal Holidays, you shall be entitled to take up to twenty (20) Business Days of vacation each calendar year; the maximum number of vacation days shall be prorated for any portion of the term of employment that is less than a full calendar year. Vacation will accrue on the anniversary of the Effective Date of each year during the term of employment. The Company believes that it is in the Company’s interest that you utilize the maximum number of vacation days that you may be entitled to in any calendar year. may carry over vacation or PTO from prior, current, or future years into the next year for any untaken vacation; Any PTO shall be taken at the reasonable and mutual convenience of the Company and you. Accordingly, you may not carry over unused vacation from one calendar year to the next, except that with the consent of the Board you may carry over up to ten (10) days into the following year provided that the total number of carried over vacation days never exceeds ten (10) in any calendar year, and (subject to applicable law) you will not be paid for unused accrued vacation following the Employment Termination Date nor will vacation days continue to accrue following delivery of a Termination Notice. For purposes of this Offer Letter “Business Day” means (a) any day other than a Saturday, Sunday, or a Federal Holiday.
9. Confidential Information and Inventions Agreement; Protection of Third-Party Information.
9.1 As the Company’s President and Chief Executive Officer, you will have full access to the Company confidential and proprietary information and you may, during your employment, develop certain information or inventions which will be the property of the Company. To protect the interests of the Company, you will need to sign and comply with the Company’s standard Employee Proprietary Information and Inventions Agreement (the “CIIA”) as a condition of your employment. The CIIA is enclosed with and attached to this Offer Letter. Notwithstanding anything to the contrary in this Offer Letter or in the Confidentiality Agreement, Confidential Information shall not include your business contacts prior to your engagement by the Company pursuant to the Consulting Agreement, whether in paper or electronic form (your “Rolodex”); provided, however that the contents of the Rolodex does not contain proprietary information developed during your employment with the Company or otherwise belonging to the Company. The CIIA shall survive the termination of your employment.
9.2 In your work for the Company, you will be expected not to make any unauthorized use or disclosure of any confidential or proprietary information, including trade secrets, of any former employer or other third party to whom you have contractual obligations to protect such information. Rather, you will be expected to use only that information which is generally known and used by persons with training and experience comparable to your own, which is common knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or developed by the Company. You represent that you can perform your job duties within these guidelines, and you are not in unauthorized possession of any unpublished documents, materials, electronically recorded information, or other property belonging to any former employer or other third party to whom you have a contractual obligation to protect such property. In addition, you represent and warrant that your employment by the Company will not conflict with any prior employment or consulting agreement or other agreement with any third party, that you will perform your duties to the Company without violating any such agreement(s), and that you have disclosed to the Company in writing any contract you have signed that may restrict your activities on behalf of the Company.
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10.1 Nothing in this Offer Letter or any other agreement you may have with the Company shall prohibit or restrict you from (i) voluntarily communicating with an attorney retained by you, (ii) voluntarily communicating with or testifying before any law enforcement or government agency, including the Securities and Exchange Commission (“SEC”), the California Securities Regulation Division, the California Civil Rights Division, or any other federal, state or local commission on human rights, or any self-regulatory organization, or otherwise initiating, assisting with, or participating in any manner with an investigation conducted by such government agency, in each case, regarding possible violations of law and without advance notice to the Company, (iii) recovering a SEC whistleblower award as provided under Section 21F of the Securities Exchange Act of 1934, (iv) disclosing any information (including, without limitation, confidential information) to a court or other administrative or legislative body in response to any subpoena provided that you first promptly notify (to the extent legally permissible) the Company and, with respect to any subpoena on behalf of any non-governmental person or entity, use commercially reasonable efforts to cooperate with any effort by the Company to seek to challenge the subpoena on behalf of any non-governmental person or entity or obtain a protective order limiting its disclosure, or other appropriate remedy, (v) filing or disclosing any facts necessary to receive unemployment insurance, Medicaid or other public benefits to which you are entitled, (vi) engaging in communications or activities protected by Section 7 of the National Labor Relations Act, or (vii) disclosing the underlying facts or circumstances relating to claims of discrimination, retaliation or harassment against the Company.
10.2 Additionally, you are hereby notified, in accordance with the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1833(b), that you will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret of the Company that (x) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to your attorney, and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (y) in a complaint or other document filed under seal in a lawsuit or other proceeding. If you file a lawsuit for retaliation by the Company for reporting a suspected violation of law, you may disclose the trade secret information to your attorney and use the trade secret information in the court proceeding, if you (A) file any document containing the trade secret under seal and (B) do not disclose the trade secret except pursuant to court order. The communications, statements, and activities permitted under this Section are referred to collectively as “Protected Activities.”
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If to you: | Xxxx Xxxxx ::: Email: amit@::: |
If to the Company: | SolarWindow Technologies, Inc. 0000 X. Xxxx Xxxx. Suite 107-B Scottsdale Arizona 85260 Attention: Xxxxxx Xxxxx, Interim CFO Email: xxxxxx@xxxxxxxxxxx.xxx |
Any Party may from time to time change its email or address by giving the other Parties notice of the change in accordance with this Section.
14.10 Construction and Interpretation.
14.10.1 The Parties acknowledge that they have participated jointly in the negotiation and drafting of this Offer Letter and each has had the opportunity to be represented by counsel of its or his choosing and, in the event of an ambiguity or question of intent or interpretation arises, this Offer Letter will be construed as if drafted jointly by such Parties and no presumption or burden of proof will arise favoring or disfavoring any Party due to the authorship of any provision of this Agreement.
14.10.2 The headings contained in this Offer Letter are for reference purposes only and shall not affect in any way the meaning or interpretation of this Offer Letter. For all purposes of this Offer Letter: (i) all references in this Offer Letter to designated “Sections”, “Schedules”, “Exhibits,” if any, and other subdivisions are to the designated Sections, Schedules, Exhibits and other subdivisions of the body of this Offer Letter unless otherwise indicated; (ii) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Offer Letter as a whole and not to any particular Section or other subdivision; (iii) “or” is not exclusive; (iv) “including” and “includes” will be deemed to be followed by “but not limited to” and “but is not limited to”, respectively; (v) any definition of, or reference to, any law, agreement, instrument or other document herein will be construed as referring to such law, agreement, instrument or other document as from time to time amended, supplemented or otherwise modified; (v) any definition of, or reference to, any statute will be construed as referring also to any rules and regulations promulgated thereunder. All pronouns shall be deemed to refer to the masculine, feminine, neuter, singular, or plural, as the identity of the Party or Parties or their personal representatives, successors and assigns may require. “Writing,” “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively.
14.11 Governing Law. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of California, without giving effect to the principles of conflicts of law that may result in the application of the laws of any jurisdiction other than the State of California. I hereby expressly consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in Los Angeles, California.
We are all delighted to be able to extend you this offer and look forward to working with you. This offer expires on May 20, 2024. To indicate your acceptance of the Company’s offer, please sign and date this letter in the space provided below and return it to me, along with a signed and dated original copy of the Confidentiality Information and Invention Assignment Agreement on or before May 19, 2024.
Sincerely,
SolarWindow Technologies, Inc.
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By: ________________________________
Name: Xxxxxx Xxxxx
Title: Interim Chief Financial Officer
ACCEPTED AND AGREED:
Xxxx Xxxxx
____________________________________ Signature Date: _______________________
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Annex A
Confidential Information and Invention Assignment Agreement
[DELIVERED AS A SEPARATE DOCUMENT ALONG WITH THE OFFER LETTER]
Exhibit 2.2
List of Outside Activities
Managing Partner - Obsidian Fund
Technology evaluation, funding, and commercialization
Managing Member - 2017 Damaak Group
Consulting services
Managing Member - 2014 Suraksha Funds
Value investing
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