FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit
10.1
FIRST
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (this “Amendment”)
is
made and entered into as of the 29th day of February, 2008, by and between
GEMMA
POWER SYSTEMS, LLC, a Connecticut limited liability company (the “Company”),
and
XXXXXXX X. XXXXXXX, XX. (the “Employee”).
RECITALS:
R-1. The Employee
is a principal employee of the Company;
R-2. The Employee
and the Company entered into that certain Employment Agreement dated as of
December 8, 2006 (the “Employment
Agreement”);
and
R-3. The
parties wish to enter into this Amendment to modify and amend the Employment
Agreement, as set forth hereinafter.
NOW,
THEREFORE,
in
consideration of the foregoing premises, the mutual promises and covenants
set
forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1.
Incorporation
of Recitals; Defined Terms.
The
above
Recitals are hereby incorporated into the body of this Amendment as if fully
set
forth herein. Capitalized terms used and not defined herein shall have the
meaning ascribed to them in the Employment Agreement.
2. Renewal
of Term.
The
Company and the Employee hereby agree, in accordance with Section 3 of the
Employment Agreement, that the Employee’s employment thereunder shall renew for
an additional term of one year, commencing June 8, 2008 and continuing to June
7, 2009 (the “First
Renewal Term”),
unless earlier terminated as provided in the Employment Agreement, subject
to
and in accordance with the terms and conditions of this Amendment. Nothing
contained in this Amendment shall affect the provisions for automatic renewal
of
the term of Employee’s employment for successive one year terms following the
First Renewal Term in accordance with said Section 3 of the Employment
Agreement.
3. Duties
of the Employee.
In
addition to the duties set forth in Section 2 of the Employment Agreement,
effective as of the date hereof, the Employee shall also serve as a member
and
Vice Chairman of the Boards of Directors of the Company and of Gemma Power,
Inc.
and Gemma Power Systems California, Inc. Notwithstanding anything to the
contrary contained in Section 2 of the Employment Agreement, the Employee shall
not serve, and since the employment by the Company of Xxxxxxx Xxxxxx has not
served, as the President and Chief Operating Officer of the Company; provided,
however, that until the commencement date of the First Renewal Term, the
Employee shall continue to assist in the transfer of his duties as the President
and Chief Operating Officer of the Company to Xxxxxxx Xxxxxx, and thereafter
shall faithfully and diligently perform all services as may be assigned to
him
by the Board, and shall exercise such power and authority as may from time
to
time be delegated to him by the Board. All other terms and conditions of Section
2 of the Employment Agreement shall remain in full force and effect.
4. Compensation.
4.1 Salary.
Notwithstanding
anything to the contrary set forth in the Employment Agreement, commencing
on
the date hereof and for the balance of the Initial Term, and thereafter during
the First Renewal Term, the Company shall pay the Employee Salary at the annual
rate of $680,000, payable as set forth in the Employment Agreement. In addition,
the Company shall pay the Employee additional compensation in the amount equal
to the difference between the Salary for the Initial Term, as set forth in
Section 4.1 of the Agreement, and the Salary set forth hereinabove, for the
period from the Effective Date under the Agreement up to the date hereof (i.e.,
from December 8, 2006 through February 28, 2008), in the amount of $306,250
(i.e., $680,000 less $430,000, divided by 12, times 14.7, equals $306,250).
Such
amount, less applicable withholding and payroll taxes, shall be paid by the
Company to the Employee in a lump sum on the date hereof.
4.2 Bonus.
In
addition to the Salary and additional compensation set forth in Section 4.1,
the
Company shall pay the Employee a Bonus for the fiscal year of the Company ending
January 31, 2008 in the amount of $500,000, such Bonus, less applicable
withholding and payroll taxes, to be payable by the Company to the Employee
on
or before March 31, 2008. The Employee shall also be entitled to a Bonus for
the
fiscal year of the Company ending January 31, 2009, (i) in the amount of
$500,000 if the Adjusted EBITDA of the Companies (as defined in the Purchase
Agreement) for the fiscal year ending January 31, 2009 exceeds $20,000,000;
and
(ii) in the amount of an additional $500,000 if the Adjusted EBITDA of the
Companies for the fiscal year ending January 31, 2009 exceeds
$25,000,000.
5. Counterparts.
This
Amendment may be executed in one or more counterparts, each of which shall
be
deemed to be an original but all of which together shall constitute one and
the
same.
6. Continuation
in Full Force and Effect.
Except
as specifically amended by this Amendment, all of the terms, covenants and
conditions of the Employment Agreement shall continue in full force and
effect.
[SIGNATURES
ON NEXT PAGE]
IN
WITNESS WHEREOF,
each of
the undersigned has executed, or has caused its duly authorized representative
to execute, this Amendment as of the date first above written.
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THE
COMPANY:
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GEMMA
POWER SYSTEMS, LLC
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By:
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/s/
Xxxx X. Xxxxxx
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Name:
Xxxx X. Xxxxxx
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Title:
Vice Chairman
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THE
EMPLOYEE:
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| /s/ Xxxxxxx X. Xxxxxxx, Xx | |||
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XXXXXXX
X. XXXXXXX, XX.
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