Exhibit 10.1.26
EMPLOYMENT AGREEMENT
This Employment Agreement (the "AGREEMENT") is entered into as of
________, 2000, by and between Beacon Power Corporation, a Delaware corporation
(the "COMPANY"), and _____________ (the "EXECUTIVE").
WHEREAS, the Company desires to retain the services of the Executive
and the Executive wishes to remain employed by the Company;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1. TERM. The Company shall employ the Executive for a term
commencing on the date hereof and continuing for ____ years until terminated
pursuant to Section 9. The period of the Executive's employment hereunder is
referred to as the "EMPLOYMENT PERIOD".
SECTION 2. DUTIES. The Executive shall serve the Company as
_____________ and shall have duties and responsibilities consistent with such
position. Such duties and responsibilities shall include, but not be limited to,
_______________________________. The Executive will report to
_____________________________. The Executive will generally perform his services
at the Company's principal offices, which are currently located in Woburn,
Massachusetts but will shortly be moved to Wilmington, Massachusetts; PROVIDED,
HOWEVER, that the Executive may be required to travel from time to time in
connection with Company business.
SECTION 3. FULL TIME; BEST EFFORTS. During the Employment Period the
Executive shall use his best efforts to promote the interests of the Company and
shall devote his full business time and efforts to its business and affairs. The
Executive shall not engage in any business activity which could reasonably be
expected to interfere with the performance of the Executive's duties, services
and responsibilities hereunder.
SECTION 4. COMPENSATION. The Executive shall be entitled to
compensation as follows:
(a) BASE SALARY. During the Employment Period, the Executive will
receive a salary at an annual gross rate of $_____________, (as the same may be
adjusted from time to time, the "BASE SALARY"), which shall be payable in
accordance with the Company's regular payroll practices applicable to senior
executive officers. The Executive's Base Salary shall be reviewed by the Board
of Directors of the Company (the "BOARD") at least annually and may be increased
(but not decreased) in the Board's discretion, depending upon the performance of
the Executive and of the Company.
(b) BONUS. The Executive shall be eligible to receive an annual bonus
based on the achievement of individual and Company performance objectives. The
amount of the annual bonus will be targeted at 50% of the Executive's Base
Salary.
(c) WITHHOLDING. The Company may withhold from compensation payable to
the Executive all applicable federal, state and local withholding taxes as
required by law.
SECTION 5. BENEFITS.
(a) GENERALLY. The Executive will be entitled to such fringe benefits
as are generally available to the Company's executive officers, including group
health and dental insurance coverage, group long and short-term disability
insurance coverage, and 401(k) plan and stock plan participation. The Company
shall not reduce in any material respect the benefits currently available to the
Executive from the Company. In the event that any insurance policy is paying
disability benefits to Executive, and if the amount of the Executive's monthly
base salary that would be paid in the absence of such disability is higher than
the monthly insurance payments, then the Company shall pay Executive an amount
per month equal to such excess, for so long as the Executive is employed with
the Company. No such difference shall be payable after the Executive's
employment is terminated with the Company.
(b) PAID VACATION. In addition to U.S. statutory holidays, the
Executive will be entitled to twenty (20) business days of paid vacation per
year, accruing at the rate of 1.66 days per month. A maximum of ten unused
vacation days in any year may be carried over and used in the next year, subject
to such policies as the Company may adopt from time to time with respect
thereto.
(c) LIFE INSURANCE. The Company will provide the Executive with group
term life insurance in an amount equal to no less than two times his Base Salary
plus $________.
SECTION 6. EXPENSE REIMBURSEMENT. The Executive will be entitled to
reimbursement of all reasonable and necessary business expenses incurred by the
Executive in the ordinary course of business on behalf of the Company, subject
to presentation of appropriate documentation and compliance with policies
established by the Board.
SECTION 7. NON-DISCLOSURE AND ASSIGNMENT OF INVENTION AGREEMENT;
INDEMNIFICATION AGREEMENT. The Executive shall execute and deliver to the
Company the Company's standard form of Invention and Non-Disclosure Agreement.
The Company and the Executive shall execute and deliver simultaneously with the
execution of this Agreement an Indemnification Agreement in form and substance
satisfactory to both parties (the "INDEMNIFICATION AGREEMENT").
SECTION 8. NON-COMPETITION AND NON-SOLICITATION COVENANTS.
(a) NON-COMPETITION. The Executive agrees that during the Employment
Period and for the longer of either eighteen (18) months thereafter, or the
period for which the Company is providing payment to the Executive under Section
9(b)(ii) of this Agreement, he will not own, manage, operate, control, be
employed by, provide services as an independent contractor or consultant to, own
any stock or other investment in or debt of, or otherwise be connected in any
manner with the ownership, management, operation or control of, any business or
enterprise that at the time of termination, competes with the Company or
conducts business in a field for which the Board has adopted plans to enter.
(b) NON-SOLICITATION. The Executive agrees that during the Employment
Period and for one (1) year thereafter, he will not attempt to persuade or
induce any employee of the Company to terminate his or her employment with the
Company for any reason.
(c) ACKNOWLEDGMENTS BY EXECUTIVE. The Executive acknowledges that the
covenants set forth in this Section 8 are reasonable in scope and are no greater
than is necessary to protect the
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Company's legitimate business interests. The Executive further acknowledges
that any breach by him of the covenants set forth in this Section 8 would
irreparably injure the Company, and that money damages would not adequately
compensate the Company for the injuries that it would suffer. The parties
accordingly agree that in the event of any breach or threatened breach by the
Executive of any of the covenants set forth in this Section 8, the Company
may obtain, from any court of competent jurisdiction, both preliminary and
permanent injunctive relief in order to prevent the occurrence or
continuation of such injuries, without being required to prove actual damages
or post any bond or other security. Nothing in this Agreement shall prohibit
the Company from pursuing any other legal or equitable remedy that may be
available to it in the event of the Executive's breach of any of the
covenants set forth in this Agreement.
SECTION 9. TERMINATION.
(a) EMPLOYMENT TERMINATION. The employment of the Executive pursuant to
this Agreement shall terminate upon the occurrence of any of the following:
(i) At the election of the Company, for Cause, immediately
upon written notice by the Company to the Executive. For purposes of this
Agreement, "CAUSE" shall be deemed to exist upon a reasonable good faith finding
by the Board that the Executive has:
(1) committed an act constituting fraud,
embezzlement or other felony, determined in the reasonable opinion of the Board
acting in its sole discretion, or
(2) materially breached his obligations under this
Agreement or the Inventions and Nondisclosure Agreement, and failed to cure same
within thirty (30) days after written notice thereof is given to him by the
Company, or
(3) materially breached the Company's material
policies, including but not limited to the Company's policies regarding xxxxxxx
xxxxxxx, and sexual harassment, or
(4) engaged in willful misconduct.
(ii) At the election of the Company, without Cause, upon at
least ninety (90) days written notice by the Company to the Executive.
(iii) The death of the Executive, or (in the discretion of the
Company) the Disability of the Executive. For purposes of this Agreement,
"DISABILITY" shall be considered to exist:
(1) if the Executive fails to perform his normal
duties for at least 120 days, whether or not consecutive, during any 360-day
period, or
(2) if the Executive's insurance company has
confirmed that any disability insurance benefits are going to be paid by reason
of Executive's incapacitation, or
(3) if the Board, acting in its sole discretion,
concludes that the Executive suffers from a degree of physical or mental
incapacitation as a result of illness or accident which makes it reasonably
unlikely that the Executive will be able to perform his normal duties for a
period of 120 days.
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In reaching this conclusion, the Board may consult third parties, including,
but not limited to, other employees, physicians, psychiatrists, and
counselors.
(iv) At the election of the Executive, for any reason, upon at
least ______ (__) days' prior written notice to the Company.
(v) At the election of the Executive for Good Reason, PROVIDED
that the Executive shall have given written notice to the Company within thirty
(30) days after he becomes aware of the occurrence of any event of Good Reason
specifying such event, and such event shall be continued for a period of thirty
(30) days following such notice. For purposes of this Agreement, "GOOD REASON"
means any of the following events:
(1) a material diminution in the duties,
responsibilities, position or job title of the Executive without the Executive's
written consent, or
(2) a material breach by the Company of its
obligations under this Agreement or the Indemnification Agreement, or
(3) a change in the primary location where the
Executive is expected to perform his services hereunder to a location that is
more than fifty (50) miles away from Wilmington, Massachusetts, or
(4) a Sale of the Business (as defined below) For
purposes of this Agreement, a "SALE OF THE BUSINESS" means (A) the acquisition
by a person, group, or party of 50% or more of the outstanding capital stock of
the Company, (B) a change of a majority of the members of the Board when the
change of the various directors occurs at substantially the same time, without
the approval or consent of the members of the Board before such change, (C) the
acquisition of the Company by means of a reorganization, merger, consolidation,
recapitalization or asset sale, unless the owners of the capital stock of the
Company before such transaction continue to own more than 50% of the capital
stock of the acquiring or succeeding entity in substantially the same
proportions, or (D) the approval of a liquidation or dissolution of the Company.
(b) EFFECT OF TERMINATION.
(i) TERMINATION PURSUANT TO SECTION 9(a)(i) RELATING TO
TERMINATION FOR CAUSE OR SECTION 9(a)(iv) RELATING TO TERMINATION AT THE
ELECTION OF EXECUTIVE FOR ANY REASON. In the event the Executive's employment is
terminated pursuant to Section 9(a)(i) or Section 9(a)iv), the Company shall pay
to the Executive his accrued Base Salary through the last date of his employment
hereunder (the "TERMINATION DATE") and shall continue to provide to the
Executive the benefits described in Section 5 (the "BENEFITS") through the
Termination Date, but shall have no responsibility for any compensation or
benefits to the Executive for any time period subsequent to the Termination
Date.
(ii) TERMINATION PURSUANT TO SECTION 9(a)(ii) RELATING TO
TERMINATION WITHOUT CAUSE OR SECTION 9(a)(v) RELATING TO TERMINATION AT THE
ELECTION OF EXECUTIVE FOR GOOD REASON. In the event the Executive's employment
is terminated pursuant to Section 9(a)(ii) or Section 9(a)(v), the Company
shall:
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(1) Within five (5) business days after the
Termination Date pay to the Executive a cash amount equal to the product of:
(A) his then monthly Base Salary, and
(B) 12 plus two times the number of full
years (but not to exceed a maximum of six years) the Executive has been employed
by the Company.
(2) Continue to provide the Benefits to the Executive
until the first anniversary of the Termination Date.
(3) Within five (5) business days after the
Termination Date, pay the Executive an amount equal to his prior year's bonus
multiplied by a fraction, the numerator of which is the number of full calendar
months that have elapsed in the then current calendar year prior to the
Termination Date, and the denominator of which is 12. In no event, shall payment
under this Section 9(b)(ii)(3) exceed 50% of the Executive's prior year's base
salary.
(4) Amend the vesting provisions of any stock option
agreement with the Executive so that in the event of a termination covered by
this paragraph, the Executive's then unvested options would vest as of the
Termination Date according to the following schedule:
IF TERMINATION OCCURS: PERCENTAGE ACCELERATION OF UNVESTED OPTIONS
- Within first six months of employment 0%
- Within seven and twelve months of employment 33%
- After twelve full months of employment 66%
(iii) TERMINATION PURSUANT TO SECTION 9(a)(iii) RELATING TO
THE DEATH OR DISABILITY OF THE EXECUTIVE. In the event the Executive's
employment is terminated pursuant to Section 9(a)(iii), the Company shall:
(1) Continue to pay to Executive or his estate,
as the case may be, an amount equal to his then current Base Salary for the
three (3) month period following the Termination Date.
(2) Continue for the twelve (12) month period
following the Termination Date all health and dental insurance benefits the
Executive was entitled to at the Termination Date.
(3) Amend the vesting provisions of any stock option
agreement with the Executive so that in the event of a termination covered by
this paragraph, the Executive's then unvested options would vest as of the
Termination Date according to the following schedule:
IF TERMINATION OCCURS: PERCENTAGE ACCELERATION OF UNVESTED OPTIONS
- Within first six months of employment 0%
- Within seven and twelve months of employment 33%
- After twelve full months of employment 66%
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(iv) GOLDEN PARACHUTE PAYMENT EXCISE TAX PROTECTION. In the
event that the excise tax imposed by Section 4999 of the Internal Revenue Code
of 1986, as amended (the "CODE"), (or any successor penalty or excise tax
subsequently imposed by law) applies to any payments or benefits paid or
conferred under this Agreement, an additional amount shall be paid by the
Company to the Executive such that the aggregate after-tax amount that he shall
receive under this Agreement, including this Section 9(iv), shall have a present
value equal to the aggregate after-tax amount that he would have received and
retained had such excise tax not applied to him. For this purpose, the Executive
shall be assumed to be subject to tax in each year related to the computation at
the then maximum applicable combined Federal and Massachusetts income tax rate,
and the determination of the present value payments to him shall be made
consistent with the principles of Section 280G of the Code.
(v) SURVIVAL. The provisions of Sections 6 and 8 shall survive
the termination of the Executive's employment in accordance with their terms.
SECTION 10. NO CONFLICTING AGREEMENTS. The Executive represents and
warrants to the Company that he is not a party to or bound by any
confidentiality, non-competition, non-solicitation or other agreement or
restriction which could conflict with or be violated by the performance of his
duties for the Company.
SECTION 11. NO DISPARAGEMENT. Each party agrees that at all times
following the termination of the Executive's employment hereunder, such party
shall not make or cause to be made, directly or indirectly, any statements to
any third party that disparage or denigrate the other party or, in the case of
the Company, any of its current or former directors, officers or employees,
unless required by law.
SECTION 12. ENFORCEABILITY, ETC. This Agreement shall be interpreted in
such a manner as to be effective and valid under applicable law, but if any
provision hereof shall be prohibited or invalid under any such law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating or nullifying the remainder of such provision or any other
provisions of this Agreement. If any one or more of the provisions contained in
this Agreement shall for any reason be held to be excessively broad as to
duration, geographical scope, activity or subject, such provisions shall be
construed by limiting and reducing it so as to be enforceable to the maximum
extent permitted by applicable law.
SECTION 13. NOTICES. Any notice or other communication given pursuant
to this Agreement shall be in writing and shall be personally delivered, sent by
nationally recognized overnight courier or express mail, or mailed by first
class certified or registered mail, postage prepaid, return receipt requested as
follows:
(a) IF TO THE EXECUTIVE: (b) IF TO THE COMPANY:
________________ Beacon Power Corporation
________________ 0X Xxxx Xxxxxx
________________ Xxxxxx, XX 00000
Attn: Chief Executive Officer
or to such other address as a party shall have designated by notice to the other
party.
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SECTION 14. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the Commonwealth of
Massachusetts without giving effect to any choice or conflict of laws provision
or rule that would cause the application of the domestic substantive laws of any
other jurisdiction.
SECTION 15. AMENDMENTS AND WAIVERS. No amendment or waiver of this
Agreement or any provision hereof shall be binding upon the party against whom
enforcement of such amendment or waiver is sought unless it is made in writing
and signed by or on behalf of such party. The waiver by either party of a breach
of any provision of this Agreement by the other party shall not operate and be
construed as a waiver or a continuing waiver by that party of the same or any
subsequent breach of any provision of this Agreement by the other party.
SECTION 16. BINDING EFFECT. This Agreement shall be binding on and
inure to the benefit of the parties hereto and their respective heirs,
executors and administrators, successors and assigns, except that it may not
be assigned by the Company without the Executive's consent, provided that the
Company may assign this Agreement to an entity that acquires substantially
all of the Company's assets by means of an asset sale, merger or otherwise,
provided further that such entity shall agree in writing to assume and be
bound by this Agreement. This Agreement is personal to the Executive and is
not assignable by him.
SECTION 17. ENTIRE AGREEMENT. This Agreement constitutes the final and
entire agreement of the parties with respect to the matters covered hereby and
replaces and supersedes all other agreements and understandings relating hereto.
SECTION 18. PRONOUNS. Whenever the context may require, any pronouns
used in this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural, and vice versa.
SECTION 19. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, and with counterpart signature pages, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument as
of the date first above written.
EXECUTIVE BEACON POWER CORPORATION
BY:
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SIGNATURE
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PRINT NAME, TITLE
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VARIABLE ELEMENTS FOR BEACON POWER CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
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NAME OF RESIDENCE Sec. 1 Sec. 2 Sec. 2 Sec. 4(a)
EXECUTIVE ADDRESS Years Title Duties/ Base
Duration Responsibilities/ Salary.
Report to
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Xxxxxxx X. 42 Valley 3 President and Overall $210,000
Xxxxxxx View Farm Road Chief Executive management of
Bradford, MA Officer corporation/
01835 Beacon Board of
Directors
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Xxxxx X. Xxxxxxx 56 Woodland 2 Vice President and Administration $135,000
Drive Chief Financial of Finance and
Lunenburg, Officer Accounting/
MA 01462 President and
Chief Executive
Officer
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Xxxxxxx X. 74 Lancaster 2 Vice President of Administration
Lister Road Operations of Program Mgt $125,000
Arlington, and Xxxxx
XX 00000 Resources/
President and
Chief Executive
Officer
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Xxxxxxx X. 35 Xxxxxxxx 2 Vice President of Administration $150,000
Lazarewicz Road Engineering of Development
Boxford, MA and R&D/
01921 President and
Chief Executive
Officer
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NAME OF Sec. 5(b) Sec. 5(c) Sec. 9(a)(iv) Sec. 9(a)(v)(5)
EXECUTIVE Payout up to Amount of No. of days of Xxxxxxx only
10 excess life notice of ("failure to be
vacation days. insurance termination. elected to board", etc.
is Good Reason for
Executive termination).
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Xxxxxxx X. Yes $1,000,000 90 Yes
Xxxxxxx
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Xxxxx X. Xxxxxxx No $250,000 30 No
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Xxxxxxx X. No $250,000 30 No
Lister
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Xxxxxxx X. No $250,000 30 No
Lazarewicz
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