EMPLOYMENT AGREEMENT
EXHIBIT
10.1
This EMPLOYMENT AGREEMENT (the
“Agreement”)
is effective as of July 14, 2009 (the “Effective
Date”), between WindTamer Corporation, a New York corporation (the “Company”),
and Xxxxxx Xxxxx (“Executive”).
R E C I T A L S:
WHEREAS, the Company desires
to engage the Executive, and the Executive wishes to serve the Company on the
terms and conditions set forth below.
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 Executive as its Chief Executive
Officer. Executive hereby accepts such
employment. Executive will report to the Company’s Board of
Directors. Executive will perform those duties and have such
authority and powers as are customarily associated with his position and such
other duties as the Board of Directors may reasonably request from time to
time.
(b) During
the Term, the Executive shall, on a full time basis, use his skills and render
services to the best of his abilities on behalf of the Company.
(c) During
the Term, the Executive and the Company may mutually agree to have the Company
employ Executive with a title other than Chief Executive Officer and with such
duties as are customarily associated with such title.
2. Term. The
term (the “Term”) of
this Agreement shall commence on the Effective Date and shall continue for three
(3) years from the Effective 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) Annual
Salary. In consideration for the services rendered by
Executive on behalf of the Company during the Term, the Company shall pay
Executive, commencing on the Effective Date, an annual salary equal to $192,540
(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 reduction to reflect applicable federal, state and local
withholding and payroll taxes.
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(b) Bonuses. In
addition to his Base Salary, Executive shall be eligible to receive a bonus in
an amount, if any, determined by the Company’s Board of Directors based upon the
financial performance of the Company to be paid only out of positive EBITDA of
the Company.
4. Benefits. In
addition to the compensation set forth above, the Company shall provide
Executive with the following benefits during the Term:
(a) Executive
shall be entitled to three (3) weeks of vacation during each
calendar year (pro-rated for any partial calendar year) that he is employed
hereunder during which vacation his annual salary shall be paid in
full. Any vacation not taken by Executive shall not carryover into
the succeeding year. All unused and accrued vacation shall be paid to
Executive (or his estate) upon Executive’ termination of employment. Such
vacation may only be taken with the express written pre-approval from the Chief
Executive Officer and at such time or times as are not inconsistent with the
reasonable business needs of the Company.
(b) The
Company shall provide Executive 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 Executive with holiday pay as provided by the Company to its other
executives.
(c) The
Company shall make available family medical insurance for Executive under the
medical insurance plan provided to other executives of the Company or a
substantially similar plan. In addition, Executive and his 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, 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 Executive
during the term, Executive shall cooperate with the Company in obtaining such
insurance.
5. Expenses. Executive
will be reimbursed for all ordinary and necessary business expenses incurred by
him in connection with his employment (including without limitation, expenses
for travel and entertainment incurred in conducting or promoting business for
the Company) upon submission by Executive of receipts and other documentation in
accordance with the Company’s normal reimbursement procedures.
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6. Confidential
Information. Executive shall not, during the Term or at anytime during
the five (5) years after termination of his employment, disclose, except as
required or necessary in the course of his 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 Executive as a result of
his employment, or through observation or examination of the Company’s
business.
7. Non-Competition
Covenant; Non Solicitation Covenant.
(a) During
the Term and for a period of two years thereafter (the “Restricted
Period”), Executive agrees that he will not, directly or indirectly
(including, without limitation, whether as consultant, an officer, employee or
director), engage in, or have any interest in any person, firm, corporation,
business or other entity (as an officer, director, employee, agent, stockholder,
or other security holder, creditor, consultant or otherwise) that engages in any
business activity where a substantial aspect of the business of the Company is
conducted, or planned to be conducted, at any time during the Restricted Period,
which business activity is the same as, similar to or competitive with the
Company as the same may be conducted from time to time.
(b) Notwithstanding
anything herein to the contrary, Executive 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 3% of the outstanding Common Stock) his
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 Executive in the operation of the business
of the entities in which such investments are made.
(c) In
furtherance of the foregoing, Executive shall not, during the Restricted Period,
directly or indirectly, in connection with any business that engages in any
business activity where a substantial aspect of the business of the Company is
conducted, or planned to be conducted, at any time during the Restricted Period,
which business activity is the same as, similar to or competitive with the
Company as the same may be conducted from time to time, solicit any customer or
employee of the Company who was a customer or employee of the Company during the
tenure of his employment.
(d) Executive
agrees that the prohibitions contained herein are reasonable and valuable to the
Company, and are express conditions of the Company’s decision to employ him. 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.
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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 him absent, or unable to perform his duties hereunder on a full
time basis for a period of six (6) months, whether consecutive or cumulative,
within any twelve (12) month period.
(c) The
Company may terminate this Agreement for “Good Cause” as defined below upon
thirty (30) days prior written notice to Executive, 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 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 breach which is capable of being cured, is
not cured within thirty (30) days after Company has provided Executive with
written notice thereof.
(d) This
Agreement may be terminated upon the mutual agreement of Company and
Executive.
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9.
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Obligations
Following Termination of
Agreement.
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(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 his death, his 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 coverage under COBRA, as may be required by
law.
(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,
such as health insurance continuation coverage under COBRA, as may be required
by law;
(ii) Executive
shall receive as severance payment an amount equal to six (6) months of
Executive’s annual salary on normal pay dates in accordance with the Company’s
pay policies in effect prior to termination date. In addition, for
the six (6) 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 his family, if applicable) immediately prior to the
termination of this Agreement (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;
10. Indemnification.
The Company shall, to the maximum extent permitted by law, indemnify and hold
harmless Executive 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 Executive’ employment by, or provision of services to, the Company
other than the willful violation of law by Executive. The Company
agrees to obtain Directors and Officers Liability insurance, and to include
Executive in the coverage of this policy during the term of this
Agreement. 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 Executive by the Company, and
free of any additional obligations of the Company to make additional payment to
him, Executive 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 Executive prior to the
termination of his 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. Executive 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. Executive 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 Executive’
attorney-in-fact with full powers to execute such document itself in the event
Executive 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
Executive’ 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 Executive
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 Executive 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; and
(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.
(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 Xxxxxxxxxx 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:
Attn: Chief Financial
Officer
WindTamer
Corporation
000 Xxxxx
Xxxxxx
Xxxxxxx,
XX 00000
If to Executive:
XX Xxx
000
Xxxxxxx,
XX 00000
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Any party
may change such party’s address for notices by notice duly given pursuant to
this Section.
(e) In
the event of litigation to enforce the terms and conditions of this Agreement,
the losing party agrees to pay the substantially prevailing party’s costs and
expenses incurred including, without limitation, reasonable attorneys’
fees.
(f) 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.
(g) 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.
(h) 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.
(i) EXECUTIVE
AND THE COMPANY HAVE EACH BEEN ADVISED THAT IT IS IMPORTANT FOR EACH OF THEM TO
SEEK SEPARATE LEGAL ADVICE 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/
Xxxx Xxxxxxxx
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Name:
Xxxx Xxxxxxxx
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Title:
Chief Operating Officer
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| /s/ Xxxxxx Xxxxx | |||||
| Xxxxxx Xxxxx | |||||
