EMPLOYMENT AGREEMENT
EXHIBIT
10.3
THIS
EMPLOYMENT AGREEMENT (“Agreement”) is entered into as of the 1st day of
June, 2008 (“Effective Date”), by and between HELIX WIND, INC., a Nevada
corporation (“Helix” or “Company”), and XXX XXXXXXX (“Executive”), and is made
with reference to the following considerations and terms:
I. Recitals.
A. As of the
January 1, 2007, Employee has been employed by Company in various capacities,
and as of the Effective Date will become employed by Company as the
CEO.
B. To xxxxxx
loyalty to the Company, to free Executive from any day-to-day concerns about job
security with the Company, and to encourage Employee to devote his or her
undivided attention and energy to furthering the interests of the Company, it is
desirable that Executive shall have an employment contract with the Company, and
that Executive shall thus have a greater expectation of either continuing
employment or a compensating severance payment for a finite period into the
future than Executive would have under a strictly at-will employment status
with the Company.
C. In light
of the foregoing promises, and in consideration of the mutual covenants
contained herein and other valuable consideration the receipt and sufficiency of
which is hereby acknowledged, the Company and Executive (each individually, a
“Party”, and collectively, the “Parties”) hereby agree as follows:
II. Employment Term and
Duties.
A. Initial
Term. Company agrees to employ Executive, and Executive hereby
accepts such employment, in accordance with the terms of this Agreement,
commencing on the Effective Date and ending December 31, 2010 (“Initial
Term”), unless this Agreement is earlier terminated as provided
herein.
1. Automatic
Extensions. Unless terminated earlier, this Agreement shall be
automatically extended for additional periods of three (3) years each (an
“Additional Period”) at the end of the Initial Term and any Additional Period of
this Agreement. The term of this Agreement shall include any Additional Period
for which this Agreement has been automatically extended.
III. Duties and Responsibilities
of Executive.
A. Performance of
Duties. Executive shall serve as the Chief Executive Officer
(CEO) of the Company and, as such, he shall perform all duties commonly incident
to such office. Executive shall work together with the President to
manage and be responsible for all operational departments and strategic
responsibilities related to the Company, including, without limitation, day to
day responsibility for finance, HR, legal, sales, marketing, engineering,
manufacturing, R&D, IS and IT reporting. Executive shall report
to and perform such additional duties as may be designated by the Board of
Directors (the “Board”) of the Company from time to time. In
addition, the Executive shall also serve as a member of the Board of Directors
of the Company, with an initial term of three (3) years. The
Executive agrees to serve the Company faithfully and to the best of his ability,
and to devote that amount of time, attention and effort to the Company which is
necessary in order to satisfy the requests of the Board. The
Executive further agrees (i) to use his best reasonable efforts to preserve
intact the goodwill, customer relations and employee relations of Helix and (ii)
to take such specified actions as the Company may reasonably request with
respect to such customers and employees of Helix as the Company may
identify. The Executive hereby confirms that he is under no
contractual commitments inconsistent with his obligations set forth in this
Agreement.
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B. Competitive Activities
Prohibited. The Executive acknowledges that the Company has
invested substantial time, money and resources in the development and retention
of its Confidential Information (defined herein), customers, accounts and
business partners, and further acknowledges that during the course of the
Executive’s employment with the Company the Executive has had and will have
access to the Company’s Confidential Information, and will be introduced to
existing and prospective customers, accounts and business partners of the
Company. The Executive acknowledges and agrees that any and all
“goodwill” associated with any existing or prospective customer, account or
business partner belongs exclusively to the Company, including, but not limited
to, any goodwill created as a result of direct or indirect contacts or
relationships between the Executive and any existing or prospective customers,
accounts or business partners. Additionally, the parties acknowledge
and agree that Executive possesses skills that are special, unique or
extraordinary and that the value of the Company depends upon his use of such
skills on its behalf. In recognition of this, the Executive covenants
and agrees that during the operation of this Agreement, and, if applicable, the
Severance Period (defined herein), Executive shall not, without the prior
written authorization of the Board, directly or indirectly, engage in any other
activity which is directly competitive to the Company’s business in any existing
or proposed geographic region. Nothing in this Agreement shall
prevent Executive from engaging in any voluntary or for-profit activity within
or outside the wind energy industry that is not competitive with
Company.
IV. Compensation.
A. Base Salary, Accrued Salary,
and Signing Bonus. As compensation for all services rendered
by the Executive under this Agreement, the Company shall pay to the Executive
compensation comprising Base Salary, Accrued Salary, and a Signing Bonus, as set
forth in Exhibit “A” hereto, and subject to the following:
1. Accrued
Salary. Notwithstanding the foregoing, if in the discretion of
management there is not sufficient cash flow to pay any portion of the increase
in Base Salary beginning August 1, 2008, such accrued increase in Base Salary
shall be accrued and remain unpaid (“Accrued Increase in Base
Salary”). At such time as the Company, in the discretion of
management, has secured sufficient assets to pay the Accrued Increase in Base
Salary, the same shall immediately be paid to Executive, unless otherwise
converted into Common Shares of Helix stock.
2. Payment of Base
Salary. Base Salary shall be payable monthly in accordance
with the Company’s regular payroll policies, and shall be exclusive of and not
in lieu of other compensation benefits and bonus(es) payable pursuant to this
Agreement. Payments will be calculated pro rata if payment for less than a full
month is due.
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3. Withholdings. All
compensation paid pursuant to this Agreement shall be subject to all applicable
federal, state and local taxes, including, without limitation, income tax and
other employment taxes required to be withheld with respect to compensation paid
by a corporation to its employees.
4. Annual Compensation
Review. The Board shall review Executive’s Base Salary and
Incentive Bonus prior to the end of each calendar year, for the purpose of
determining whether any increase (but not decrease) is appropriate beyond any
increase pursuant to the schedule above. The Board shall perform an
annual evaluation of Executive’s performance and effectiveness. Among
the factors taken into account will be success in meeting milestones and budgets
previously established by the Board, increase in net profit from the previous
year and short and long term benefit accruing to shareholders. The
Board will consider any increases in compensation taking into account
Executive's contribution to the increase in profit and shareholder value and
available cash flow.
B. Bonus and Incentive
Pay. Executive shall be entitled to receive incentive and
bonus compensation (collectively, “Bonus Pay”), as follows:
1. Incentive
Compensation. Executive shall be entitled to annual Incentive
Compensation in accordance with the Company’s Incentive Compensation Plan ( the
“Plan”) to be established by the Board of Directors and/or Compensation
Committee for each calendar year. Unless otherwise agreed in writing,
in the event Executive is terminated prior to the end of a calendar quarter, he
shall be entitled to participate in the Plan on a pro rata basis equal to the
number of days employed in the quarter with the Company divided by
90. Incentive Compensation shall be evaluated by the Compensation
Committee and paid quarterly, based upon the Company’s success in achieving the
Incentive Goals set forth in the Plan. On or before January 31 of
each calendar year, the Compensation Committee shall review the Plan and, in its
sole discretion, determine to leave it in place or modify the Incentive Goals
and/or compensation payable thereunder for the remainder of such calendar
year.
2. Annual
Bonus. During the term of this Agreement, Company also may pay
to Executive additional bonuses, from time to time, the payment, amounts and
timing of which shall be determined annually by the Board or Compensation
Committee, in its sole discretion.
C. Fringe
Benefits. Solely during the Period of Employment, the Company
shall provide the following fringe benefits to the Executive:
1. Vacation. Executive
shall be entitled to four (4) weeks paid vacation each year in addition to all
holidays recognized by the California State and federal government, with such
vacation being fully earned and accrued as of the first day of each such
employment year.
2. Insurance. The
Company shall provide Executive with health and medical, dental, optical, life,
and disability insurance consistent with the coverage offered by the Company to
its other Executives. The Company shall pay Executive’s current
health & medical, dental, life insurance, disability and optical plan
premiums for at least three months or until such time as the Executive has been
accepted by the respective plan into the Company’s new program without
exclusions or waiting periods for benefits.
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3. Business Expenses
Reimbursements. During the term of this Agreement, Company
shall reimburse Executive promptly for all reasonable business expenses incurred
by Executive whether or not deductible by Company for income tax purposes,
including without limitation, travel, entertainment, parking, business meetings,
industry membership dues, cellular telephones and usage charges, in-home office
equipment (including, without limitation; telephone, facsimile, laptop, printer,
internet, and e-mail service), and such other business expenses reasonably
incurred by Executive in the pursuit and furtherance of the Company’s
business. Such expenses shall be reimbursed only upon presentation to
the Company of appropriate documentation substantiating such
expense.
D. Equity
Participation. Effective upon execution of this Agreement,
Executive shall be entitled to participate in the Company’s 2008 Omnibus Stock
Plan (“2008 Stock Plan”) and shall be granted an Incentive Stock Option to
purchase the number of shares of the Company Common Stock (the “2008 Option
Shares”) equal to 2.334% of those common shares issued and outstanding after the
closing of series A financing (post-dilution), at an exercise price equal to the
price specified in the series A offering, in accordance with a Notice of Grant
and Stock Option Agreement to be executed by Executive and the Company,
according to the terms and conditions of the 2008 Stock Plan.
1. Vesting of
Options. The 2008 Option Shares will vest in the following
manner:
a. Forty percent (40%) upon
execution of the 2008 Stock Plan;
b. twenty percent (20%) on December 31,
2008;
c. twenty percent (20%) on
December 31, 2009; and
d. twenty percent (20%) on
December 31, 2010
4. Accelerated
Vesting. In the event there is a Change of Control (as defined
herein) or Company terminates the Executive’s employment during the Term of
Employment other than pursuant to Section V.C.
(described below), or if Executive terminates his employment pursuant to Section V.F
(described below), all unvested Stock Options granted to Executive pursuant to
the 2008 Stock Plan will immediately vest, as further described in Executive’s
Stock Option Agreement.
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5. “Change of Control”
shall mean a change in ownership or control of the Company effected through any
of the following transactions:
a. a merger,
consolidation or reorganization approved by the Company’s stockholders, UNLESS
securities representing more than fifty percent (50%) of the total combined
voting power of the voting securities of the successor corporation are
immediately thereafter beneficially owned, directly or indirectly and in
substantially the same proportion, by the persons who beneficially owned the
Company’s outstanding voting securities immediately prior to such
transaction;
b. any
stockholder-approved transfer or other disposition of all or substantially all
of the Company’s assets; or
c. the
acquisition, directly or indirectly by any person or related group of persons
(other than the Company or a person or company that directly or indirectly
controls, is controlled by, or is under common control with, the Company), of
beneficial ownership (within the meaning of Rule 13d-3 of the Securities
Exchange Act of 1934) of securities possession more than fifty percent (50%) of
the total combined voting power of the Company’s outstanding securities pursuant
to a tender or exchange offer made directly to the Company’s stockholders which
the Board recommends such stockholders accept.
6. Piggy-Back
Registration: Executive shall be entitled to “piggy-back”
registration rights on registrations of the Company Common Stock; subject to the
right, however, of the Company and its underwriters, in their sole discretion,
to reduce the number of shares proposed to be registered pro rata with the other
holders of the Company’s Common Stock in view of market conditions and customary
lock-up and stand-off provisions.. The Company shall bear
registration expenses (exclusive of underwriting discounts and commissions and
special counsel of the selling shareholders) of all demand and piggy-back
registrations. The registration rights may be transferred
provided that the Company is given written notice thereof and provided that the
transfer is in connection with a transfer of all securities of the
transferor.
7. Reload Option:
In the event this Agreement is renewed or extended for an additional Term as
provided in Section
II.A.1, the Company shall grant to Executive a further Option to purchase
additional shares of the Company Common Stock (a “Reload
Option”). Any such Reload Option (i) shall be for a number of shares
equal to 2.334% of the then issued and outstanding shares of capital Stock of
the Company, on a fully diluted basis; (ii) shall have a Term of five
(5) years; (iii) shall have an exercise price which is equal to one hundred
percent (100%) of the Fair Market Value of the Stock subject to the Reload
Option on the date of renewal or extension; and (iv) shall otherwise be granted
and exercisable on terms and conditions substantially identical to those
applicable to the 2008 Option Shares. Any such Reload Option shall be
subject to such other terms and conditions as the Board or Committee may
determine.
V. Termination of
Employment.
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A. Notice. Executive’s
employment with the Company may be terminated by the Company With or Without
Cause, upon written notice (i) during the Initial Term, equal to the remainder
of the Initial Term or three hundred and sixty five (365) days, whichever is
greater; and (ii) during any Additional Terms, equal to three hundred and sixty
five (365) days (in either case, the “Notice Period”).
B. Termination Without
Cause. The Company shall have the unrestricted right to
terminate Executive at any time “Without Cause,” i.e., for no reason, or any
reason that does not violate current law. Upon any termination
Without Cause, the Company’s sole obligation to Executive shall be to pay
Executive the amount of Executive’s Base Salary that would have been earned by
Executive through the end of the Notice Period and annual Bonus Pay (as
described above) if any, equal to the amount of Executive’s average Bonus for
the immediately preceding two years. (the “Severance
Payment”). The Severance Payment will be paid monthly during the
Severance Period, and contingent upon Executive’s compliance with the provisions
of Section
III.B., et seq.
of this Agreement.
C. Termination For
Cause. The Company shall have the unrestricted right to
terminate Executive at any time “For Cause,” as that term is defined
below. And upon any termination For Cause, the Company’s sole
obligation to Executive shall be to pay Executive the amount of Executive’s Base
Salary earned by Executive through the date of such termination and Bonus Pay
(as described above) if any, according to the governing calculation/pay-out
terms.
1. For
purposes of this Agreement, “For Cause” shall mean (i) gross and willful
misconduct during the course of employment that is injurious to the Company,
including but not limited to, wrongful appropriation of funds of the Company or
its affiliates or the commission of a felony; (ii) the conviction of a felony
which impairs the Executive’s ability substantially to perform his duties with
the Company; or (iii) that Executive has engaged in a material or repeated,
willful, non-performance of his duties, after that deficiency has been called to
his attention in writing, and which he has failed to correct within a reasonable
time, normally within 30 days. For purposes of this definition, no
act, or failure to act, on the Executive’s part shall be deemed “willful” unless
done, or omitted to be done, by the Executive not in good faith and without
reasonable belief that his action or omission was in the best interest of the
Company.
2. With
reference to For Cause, termination shall not occur until the Company has
demonstrated that the infraction is well founded in fact and material, and
uncorrected by Executive.
D. Termination Upon Death or
Disability. This Agreement shall terminate immediately upon
the death or total permanent disability of Executive. In such event
the Company’s sole obligation to Executive shall be to pay Executive and/or
Executive’s estate the amount of Executive’s base compensation earned by
Executive through the date of death or disability and Bonus Pay (as described
above) when the amount would be normally paid.
E. Change of
Control. In the event of a change in corporate control (as
described in Section
IV.D.3 et seq.,
above), Executive may elect, in his sole discretion, to trigger the termination
provisions set forth in Section V.F (below),
as though triggered by the Company.
F. Termination by
Executive. Executive may terminate this Agreement at any time
upon ninety (90) days’ written notice to the Company, and, upon Executive
providing such notice, the Company, at its sole discretion, may terminate this
Agreement immediately upon payment of ninety (90) days’ Salary to Executive and
Bonus Pay (as described herein) when the amount would be normally paid;
provided, however, that in the event Executive terminates his employment for
“Good Reason”, as defined below, Executive shall be entitled to the Severance
Pay provided for under Section
V.B.
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1. Good Reason
Defined. “Good Reason” shall mean the occurrence of any one or
more of the following events without the Executive’s express written consent:
(i) any decrease in Executive’s Base Salary and/or a material reduction of the
Executive’s title or responsibility; (ii) the Company’s failure to pay any other
required amounts set forth in this Agreement; (iii) the Company’s failure to
provide fringe benefits provided for herein; (iv) a relocation of the
Executive’s job to a location which is both outside the same metropolitan area
and more than thirty (30) miles from his previous work location; or (v) a Change
of Control..
VI. Protection of Company
Property.
A. Restriction on
Use. Executive recognizes and acknowledges that he will have
access to Confidential Information (as defined below) relating to the business
or interest of the Company or of persons with whom the Company may have business
relationships. Except as permitted herein or as may be approved by
the Company from time to time, the Executive will not during the Term of
Employment or at any time thereafter, use, disclose or permit to be known by any
other person or entity, any Confidential Information of the Company (except as
required by applicable law or in connection with the performance of the
Executive’s duties and responsibilities hereunder). If Executive is
requested or becomes legally compelled to disclose any of the Confidential
Information, he will give prompt notice of such request or legal compulsion to
the Company. The Company may waive compliance with this section VII
or will provide Executive with legal counsel at no cost to Executive to seek an
appropriate remedy.
1. Confidential Information
Defined. The term “Confidential Information” means information
relating to the Company’s business affairs, proprietary technology, trade
secrets, patented processes, research and development data, know-how, market
studies and forecasts, competitive analyses, pricing policies, vendor and
supplier lists, employee lists, employment agreements (other than this
Agreement), personnel policies, the substance of agreements with customers,
suppliers and others, marketing arrangements, customer lists, commercial
arrangements, or any other information relating to the Company’s business that
is not generally known to the public or to actual or potential competitors of
the Company (other than through a breach of this Agreement). This
obligation shall continue until such Confidential Information becomes publicly
available, other than pursuant to a breach of this Section VI by the
Executive, regardless of whether the Executive continues to be employed by the
Company.
B. Company
Materials. It is further agreed and understood by and between
the parties to this Agreement that all “Company Materials,” which include, but
are not limited to, computers, computer software, computer disks, tapes,
printouts, source, HTML and other code, flowcharts, schematics, designs,
graphics, drawings, photographs, charts, graphs, notebooks, customer lists,
sound recordings, other tangible or intangible manifestation of content, and all
other documents whether printed, typewritten, handwritten, electronic, or stored
on computer disks, tapes, hard drives, or any other tangible medium, as well as
samples, prototypes, models, products and the like, shall be the exclusive
property of the Company and, upon termination of Executive’s employment with the
Company, and/or upon the request of the Company, all Company Materials,
including copies thereof, as well as all other Company property then in the
Executive’s possession or control, shall be returned to and left with the
Company. Anything in this Section VI to the
contrary notwithstanding, Executive shall be entitled to retain his personal
“rolodex” and any Company Materials contained in his personal computer so long
as he does not disclose any Company Materials to any third parties.
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C. Inventions Discovered By
Executive.
1. Disclosure. The
Executive shall promptly disclose to the Company any invention, improvement,
discovery, process, formula or method or other intellectual property, whether or
not patentable or copyrightable (collectively, “Inventions”), conceived or first
reduced to practice by the Executive, either alone or jointly with others, while
performing services hereunder (or, if based on any Confidential Information,
within one (1) year after the term of this Agreement):
a. which
directly relate to any line of business activity of the Company, if then
conducted or then being actively planned by the Company, with which the
Executive was or is involved; or
b. which is
developed using time, material or facilities of the Company, whether or not
during working hours.
2. Transfer of
Title. The Executive hereby quitclaims to the Company all of
the Executive’s right, title and interest in and to any such
Inventions. During and after the Term, the Executive shall execute
any documents necessary to perfect the quitclaim of such Inventions to the
Company and to enable the Company to apply for, obtain and enforce patents,
trademarks and copyrights in any and all countries on such Inventions,
including, without limitation, the execution of any instruments and the giving
of evidence and testimony, without further compensation beyond the Executive’s
agreed compensation during the course of the Executive’s
employment. Without limiting the foregoing, the Executive further
acknowledges that all original works of authorship by the Executive, whether
created alone or jointly with others, relating to the Executive’s employment
with the Company, and which are protectable by copyright, are “works made for
hire” within the meaning of the United States Copyright Act, 17 U.S.C. Section
101, as amended, and the copyright of which shall be owned solely, completely
and exclusively by the Company. If any Invention is considered to be
a work not included in the categories of work covered by the United States
Copyright Act, 17 U.S.C. Section 101, as amended, such work is hereby conveyed
and transferred completely and exclusively to the Company. The
Executive hereby irrevocably designates counsel to the Company as the
Executive’s agent and attorney-in-fact to do all lawful acts necessary to apply
for and obtain patents and copyrights and to enforce the Company’s rights under
this Section
VI. This Section VI shall survive the
termination of this Agreement. Any conveyance of copyright hereunder
includes all rights of paternity, integrity, disclosure and withdrawal and any
other rights that may be known as or referred to as “moral rights” (collectively
“Moral Rights”). To the extent such Moral Rights cannot be conveyed
under applicable law and to the extent the following is allowed by the laws in
the various countries where Moral Rights exist, the Executive hereby waives such
Moral Rights and consents to any action of the Company that would violate such
Moral Rights in the absence of such consent. The Executive agrees to
confirm any such waivers and consents from time to time as requested by the
Company.
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D. Injunctive
Relief. Notwithstanding any provisions of this Agreement to
the contrary, Executive agrees that the remedy at law for any breach of this
section shall be insufficient and inadequate to protect the Company’s legitimate
interests, and, therefore, the Company shall at all times be and remain fully
entitled to immediate and permanent injunctive relief (without the need for
posting a bond) for any such breach in addition to any and all other relief,
damages and/or other remedies available to the Company at law or in
equity.
VII. Non-Solicitation.
A. Acknowledgment. The
Executive acknowledges that the Company has invested substantial time, money and
resources in the development and retention of its Inventions, Confidential
Information (including trade secrets), customers, accounts and business
partners, and further acknowledges that during the course of the Executive’s
employment with the Company the Executive has had and will have access to the
Company’s inventions and Confidential Information (including trade secrets), and
will be introduced to existing and prospective customers, accounts and business
partners of the Company. The Executive acknowledges and agrees that
any and all “goodwill” associated with any existing or prospective customer,
account or business partner belongs exclusively to the Company, including, but
not limited to, any goodwill created as a result of direct or indirect contacts
or relationships between the Executive and any existing or prospective
customers, accounts or business partners. Additionally, the parties
acknowledge and agree that Executive possesses skills that are special, unique
or extraordinary and that the value of the Company depends upon his use of such
skills on its behalf.
B. Non-Solicitation. In
recognition of this, the Executive covenants and agrees that:
1. During
the Term of Executive’s employment with the Company, and for a period of one (1)
year thereafter, the Executive may not entice, solicit or encourage any Company
employee to leave the employ of the Company or any independent contractor to
sever its engagement with the Company, absent prior written consent from the
Company.
2. During
the Term of Executive’s employment with the Company, and for a period of one (1)
year thereafter, the Executive may not, directly or indirectly, entice, solicit
or encourage any customer or prospective customer of the Company to cease doing
business with the Company, reduce its relationship with the Company or refrain
from establishing or expanding a relationship with the Company.
3. The
provisions of this Section VII are
necessary and reasonable to (i) protect the Company’s business interests, and
(ii) the specific temporal, geographic and substantive provisions set forth
herein.
C. Injunctive
Relief. Notwithstanding any provisions of this Agreement to
the contrary, Executive agrees that the remedy at law for any breach of this
section shall be insufficient and inadequate to protect the Company’s legitimate
interests, and, therefore, the Company shall at all times be and remain fully
entitled to immediate and permanent injunctive relief (without the need for
posting a bond) for any such breach in addition to any and all other relief,
damages and/or other remedies available to the Company at law or in
equity.
VIII. Miscellaneous.
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A. Entire
Agreement. This Agreement (including any other documents
referred to herein) contains the entire understanding between the parties hereto
with respect to the subject matter hereof and as of the Effective Date this
Agreement supersedes and terminates any prior understandings, agreements,
obligations or representations, written or oral, relating to the subject matter
hereof, including but not limited to Helix Agreements.
B. Modification, Amendment,
Waiver or Termination. No provision of this Agreement may be
modified, amended, waived or terminated except by an instrument in writing
signed by the parties to this Agreement. No course of dealing between
the parties will modify, amend, waive or terminate any provision of this
Agreement or any rights or obligations of any party under or by reason of this
Agreement. No delay on the part of the Company in exercising any
right hereunder shall operate as a waiver of such right. No waiver,
express or implied, by the Company of any right or any breach by the Executive
shall constitute a waiver of any other right or breach by the
Executive.
C. Severability. Whenever
possible, each provision of this Agreement shall be interpreted in such a manner
as to be effective and valid under applicable law but if any provision of this
Agreement is held to be invalid, illegal or unenforceable under any applicable
law or rule, the validity, legality and enforceability of the other provisions
of this Agreement will not be affected or impaired thereby. In
furtherance and not in limitation of the foregoing, should the duration or
geographical extent of, or business activities covered by, any provision of this
Agreement be in excess of that which is valid and enforceable under applicable
law, then such provision shall be construed to cover only that duration, extent
or activities which may be validly and enforceably covered. The
Executive acknowledges the uncertainty of the law in this respect and expressly
stipulates that this Agreement be given the construction which renders its
provision valid and enforceable to the maximum extent (not exceeding its express
terms) possible under applicable law.
D. Assignability. Neither
this Agreement nor any right, remedy, obligation or liability arising hereunder
or by reason hereof shall be assignable (including by operation of law) by
either party without the prior written consent of the other party to this
Agreement, except that the Company may, without the consent of the Executive,
assign its rights and obligations under this Agreement to any corporation, firm
or other business entity with or into which the Company may merge or
consolidate, or to which the Company may sell or transfer all or substantially
all of its assets, or of which 50% or more of the equity investment and of the
voting control is owned, directly or indirectly, by, or is under common
ownership with, the Company. No such assignment by the Company shall
discharge the Company from any liability hereunder.
E. Third-Party
Benefit. Nothing in this Agreement, express or implied, is
intended to confer upon any other person any rights, remedies, obligations or
liabilities of any nature whatsoever.
F. Notice. For
the purpose of this Agreement, notices and all other communications provided for
in the Agreement shall be in writing and shall be deemed to have been duly given
when actually delivered or when mailed by United States registered mail, postage
prepaid, addressed to the other party as follows:
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| If to the Company, to: | Helix Wind, Inc.
Attention: Xxxxx
Xxxxxxxxxx, President
0000
Xxxxxxxxxx Xxxxxx
Xxx
Xxxxx, XX 00000
|
| With copy to: |
Xxxxxxx
Xxxxxx
Xxxxxx
& Xxxx LLP
000
Xxxx Xxxxxxxx, Xxxxx 0000
Xxx
Xxxxx, XX 00000
619.696.7124
facsimile
|
| If to the Executive: |
Xxx
Xxxxxxx
0000
Xxxx Xxxxxx
Xxx
Xxxxx, Xxxxxxxxxx 00000
619-330-2627
facsimile
|
Either
party to this Agreement may change its address for purposes of this Notice
subsection by giving 15 days’ prior notice to the other party
hereto.
G. Headings. The
headings and any table of contents contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
H. Governing
Law. All matters relating to the interpretation, construction,
validity and enforcement of this agreement shall be governed by the internal
laws of the state of California, without giving effect to any choice of law
provisions thereof.
I. Counterparts. This
Agreement may be executed in separate counterparts, each of which will be an
original and all of which taken together shall constitute one and the same
agreement, and any party hereto may execute this Agreement by signing any such
counterpart.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date first set forth below.
“COMPANY”
Helix
Wind, Inc.,
a Nevada
corporation
| By: |
/s/ Xxxxx
Xxxxxxxxxx
|
| Xxxxx Xxxxxxxxxx, its President | |
| “EXECUTIVE” | |
| Xxx Xxxxxxx | |
|
/s/ Xxx
Xxxxxxx
|
|
11
EXHIBIT
“A”
Base
Salary, Signing Bonus
|
I.
|
Base
Salary. Pursuant to Section IV.A.1., Company agrees to pay
Executive Base Salary as follows:
|
| Months | Salary | |
|
Month 1 through Month 19
(January 1, 2007 through July 31, 2008)
|
$100,000
per annum
|
|
|
Next 12 Months (August
1, 2008 through July 31, 2009)
|
$200,000
|
|
|
Next 12 Months (August
1, 2009 through July 31, 2010)
|
$250,000
|
|
|
Xxxxx 0 Months of Initial Term
(August 1, 2010 through December 31, 2010)
|
$300,000
|
|
II.
|
Accrued
Increase in Base Salary. Pursuant to Section IV.A.1., if in the
discretion of management there is insufficient cash flow to pay any
portion of the increase in Base Salary beginning August 1, 2008 (“Accrued
Increase in Base Salary”), such unpaid portion of the Accrued Increase in
Base Salary shall be accrued and Company agrees to pay same to Executive,
unless otherwise converted into Common Shares of Helix
stock.
|
|
III.
|
Signing
Bonus. In order to compensate Executive for his contribution to
Company including but not limited to his continuing efforts to raise
series A investment capital, Company agrees to pay Executive $75,000.00 at
the closing of series A financing, within 3 business days of Company
receiving series A capital.
|
12
Amendment
No. 1 to
This
Amendment to Employment Agreement (“Amendment”) is made and entered into as of
the 26th day of January 2009 by and between Helix Wind, Inc., a Nevada
corporation (the “Company”) and Xxx X. Xxxxxxx, an individual (“Employee”) in
connection with the Employment Agreement executed on June 1, 2008 (the
“Employment Agreement”). In consideration of the mutual agreements
and promises contained herein, and for other good and valuable consideration
(including the agreement of Employee to continue his employment with the
Company), the receipt and sufficiency of which are hereby acknowledged, the
Company and Employee agree as follows.
The
parties wish to amend Section IV.D of the Agreement to read in full as
follows:
“Equity
Participation. Executive shall be entitled to participate in a
stock option plan, when created, and shall then be granted a stock option (the
“Option”) to purchase 3,253,740 shares of common stock (the “Option Shares”), at
an exercise price equal to the fair market value of the Option Shares or at such
exercise price required by applicable law at the date of grant. The Option will
be exercisable for a period of ten (10 ) years but will be exercisable for a
period of five (5) years if the Executive, on the date of grant, owns more than
ten (10%) percent of the total combined voting power of all classes of stock of
the Company within the meaning of Section 422(b)(6) of the Internal Revenue Code
of 1986, as amended and any applicable regulations promulgated thereunder. The
Option Shares will vest in the following manner:
a. Sixty percent (60%) on
the grant date of the Option;
b. twenty percent (20%) on
December 31, 2009; and
c. twenty percent (20%) on
December 31, 2010.
It is
contemplated that the options to be granted pursuant to this Employment
Agreement will be issued as incentive stock options under a stock option plan to
be created by Clearview Acquisitions, Inc. (“Clearview”) in connection with the
proposed merger of a subsidiary of Clearview into the Company, but in the event
such a plan is not created by February ______, 2009, the Company shall then
grant non-qualified stock options on the same terms, exercisable at fair market
value of the Option Shares or such other exercise price as required by
applicable law.”
Except as
specifically stated in the terms of this Amendment, the Employment Agreement
remains in full force and effect, according to its terms, as amended herein and
nothing contained herein shall operate as a waiver of any obligation, condition,
right, remedy or provision contained in or arising out of the Employment
Agreement.
This Amendment may be signed in
counterparts with the same force and effect as if all original signatures
appeared on one copy; and in the event signed in counterparts, each counterpart
is the equivalent of an original and all of the counterparts are the equivalent
of one agreement.
Facsimile signatures on notices and
amendments are the equivalent of original signatures.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK.]
|
Helix
Wind, Inc.,
a
Nevada corporation
|
Employee: | ||
| By: | /s/ Xxxxx Xxxxxxxxxx | /s/ Xxx Xxxxxxx | |
| Xxxxx Xxxxxxxxxx, President | Xxx Xxxxxxx, Chief Executive Officer | ||
