Exhibit 10.14
PERSONAL & CONFIDENTIAL
November 21, 2002
Mr. Xxxx Xxxxx
Director
Capstone Turbine
00000 Xxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
RE: INTERIM EXECUTIVE OFFICER SERVICES FOR CAPSTONE TURBINE
Dear Xxxx,
Under the terms of this letter Agreement (the "AGREEMENT") The Interim CEO
Network ("ICN") is pleased to offer the services of Xxxxx X. Xxxxxxx as interim
COO of Capstone Turbine (the "COMPANY"). She will report to the Company's Board
of Directors. Xx. Xxxxxxx (the "ICN MEMBER") will start on November 21, 2002 and
will offer her time for at least six (6) months, subject to our Standard Terms
and Conditions ("STANDARD TERMS") attached to this Agreement as Exhibit A.
1. THE SERVICES
The Services provided under this Agreement will be performed primarily by the
ICN Member, with the support of ICN. All of the following Services will be
performed for you in accordance with the Standard Terms. We will:
- Provide outstanding leadership to employees during a critical period.
- Focus on operational improvements to improve profitability
- Assist in recruiting employees to the Company, including a permanent
Chief Executive Officer.
- Implement sound management procedures and practices appropriate to a
small public company.
- Report to the board on a regular and frequent basis.
- Provide other services reasonably requested by the Board that are
customarily provided by a chief operating officer.
2. TIME AND DURATION OF ASSIGNMENT
The ICN Member is prepared to begin this engagement on November 21, 2002 and she
will continue to be available to provide Services to you for at least six (6)
months, unless her engagement is terminated earlier in accordance with the
Standard Terms.
3. ICN FEES
The Company agrees to pay ICN the following compensation, each item of which is
considered "fees" under the Standard Terms, and must be paid in accordance
therewith. All such fees are to be paid directly to ICN.
- The Company shall pay a non-refundable retainer of $10,000 that is due
immediately upon Company's signing this Agreement. This retainer is
non-refundable for any reason, regardless of whether the ICN Member
commences or completes her engagement.
- On January 15, 2003, the Company shall make a payment
("SERVICE FEE") to ICN in the amount of $30,000 for services
provided under this Agreement, for the period commencing on
November 21, 2002, and ending on January 1, 2003. If the ICN
Member is still employed by the Company as interim officer on
February 1, 2003, then on February 15, 2003, the Company shall
make a Service Fee payment to ICN in the amount of $30,000 for
services provided under this Agreement, for the period
commencing on January 2, 2003 and ending on February 1, 2003.
- If the ICN Member's services as an interim officer extend
beyond May 1, 2003, for any period of time, the Company shall
make final Service Fee payment of $20,000. Thereafter, the
Company will not be obligated to pay any further Service Fees
to ICN, for any reason, in connection with the ICN Member's
provision of services as an interim employee, unless the
parties agree otherwise in writing.
- If the ICN Member's status is changed from an interim COO to a
full-time, permanent CEO at any time during or after the
expiration or termination of this Agreement the Company agrees
to pay a $54,000 cash fee to ICN promptly after ICN Member's
status changes. The Company will not be required to pay any
Service Fees arising after the ICN Member's status changes.
The Company agrees to pay the following fees and expenses of ICN Member
(which are not "ICN Fees") directly to the ICN Member pursuant to
agreements mutually acceptable to the ICN Member and the Company:
- ICN Member's salary of $40,000 per month, subject to
withholding taxes required by applicable law.
- Temporary living expenses of ICN Member consistent with
Company policies for relocating employees reasonably required
for her to establish and maintain a temporary residence in the
greater Los Angeles area, including the cost of coach class
commercial air travel once per week to and from her primary
residence located in Atherton, California.
4. EQUITY
The Company will grant the ICN Member a stock option outside the
Company's 2000 Stock Plan ("OPTION") to purchase 3,840,000 shares of
Common Stock which will vest in a manner allowing her to purchase
80,000 shares of the Company's Common Stock for each month during which
the ICN Member is employed by the Company. Vesting will be pro-rated
for partial months of employment. The strike price for the Option shall
be the closing price on NASDAQ of the Company's shares on the date of
the grant. The Option will be granted on the date the ICN Member's
employment by the Company commences. The Option shall provide for (i)
exercisability of the option as to vested shares until the later of (A)
30 days after termination of the ICN Member's services to the Company
or (B) two years after its date of grant, (ii) termination as to all
unvested shares on the date of termination of the ICN Member's services
to the Company, (iii) only if the ICN Member has become the full-time,
permanent CEO (and not an interim CEO), accelerated vesting after a
change in control as provided in Sections 15(d) and 15(e) of the 2000
Plan and (iv) no "net exercise" ability. The Company will register the
option on Form S-8.
5. APPROVAL
If the terms of this Agreement are agreeable to you, please sign on the
following page and return a copy to ICN. This Agreement will be deemed
accepted and enforceable on the date ICN receives your signed signature
page (the "EFFECTIVE DATE").
Again, thank you for giving ICN the opportunity to be of service to
Capstone Turbine. We look forward to working with you.
Sincerely, ACCEPTED:
/s/ Xxxxxxx Xxxxx /s/ Xxxx Xxxxx
Xxxxxxx X. Xxxxx Xxxx Xxxxx, Director, Capstone Turbine
Chief Executive Officer
The Interim CEO Network Management, L.L.C.
Address: Address:
P.O. Box 620109 00000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
11/21/02 11/21/02
Date Date
ACCEPTED:
/s/ Xxxxx Xxxxxxx 11/21/02
Xxxxx X. Xxxxxxx Date
Address:
000 Xxxxxxxxx Xx
Xxxxxxxx, XX 00000
[SIGNATURE PAGE TO ICN CLIENT ENGAGEMENT LETTER]
EXHIBIT A
STANDARD TERMS AND CONDITIONS
The Interim CEO Network Management, L.L.C.
NOTE: Any capitalized words not defined herein are ascribed the meaning given
them in the Agreement between ICN and the Company, of even date to which these
Standard Terms and Conditions are attached as Exhibit A and are incorporated by
reference therein.
I. SERVICES. ICN and the ICN Member will use commercially reasonable
efforts to perform the Services described in the Agreement. The Company will
provide all resources, including, but not limited to human resources, equipment,
technical resources, and financial resources, reasonably requested by ICN or the
ICN Member to enable them to perform the Services. The failure to provide any
such resources will be deemed a material breach by the Company. If ICN is to
receive any confidential information of the Company then ICN will sign the
Company's standard nondisclosure agreement and will observe Company's xxxxxxx
xxxxxxx policies.
II. RELATIONSHIP OF THE PARTIES. It is understood by all parties that the
ICN Member will be an employee of the Company. The ICN Member will be
responsible for payment of all taxes (including, without limitation, federal and
state income taxes, state Medicare, disability, and unemployment taxes) arising
from the ICN Member's relationship with the Company. As a condition to the
Company's obligations (other than the Company's obligation to pay ICN the
$10,000 initial fee on signing the Agreement) the ICN Member would sign an
Employment Agreement in a standard form provided by the Company, including
appropriate covenants and indemnities with respect to tax matters, nondisclosure
obligations and assignment of intellectual property, and would meet all other
standard Company requirements for employment.
III. FEES AND EXPENSES. Unless otherwise specified in the Agreement, all ICN
fees and expenses are payable directly to ICN, and will be invoiced to the
Company on the fifteenth and the last day of the month for the prior two-week
period. All expenses incurred by ICN require prior Company approval. All ICN
invoices are due and payable in full upon receipt. The ICN Member's salary,
benefits, expenses and Option will be provided directly to the ICN Member.
IV. TERM AND TERMINATION. Unless otherwise specified in the Agreement, for
purposes of ICN Service Fees, the ICN Member's cash compensation and the vesting
of the ICN Member's Option, ICN Member's engagement will be deemed to continue
for 90 days after the Effective Date. In all other respects this Agreement can
be terminated by the Company on notice to ICN. Nothing in this Agreement alters
the at-will nature of the ICN Member's employment by the Company. This Agreement
will automatically be extended at the end of the initial 90 day term, unless it
is terminated in writing by any one party. Furthermore, unless all parties
otherwise agree in writing, the provisions of this Agreement and these Standard
Terms and Conditions will apply to any such extension.
V. NO GUARANTEES. The Company acknowledges and understands that ICN cannot
and does not guarantee that the Company will achieve any specific results due to
the efforts of ICN or the ICN Member.
VI. INDEMNIFICATION. The Company will indemnify ICN and hold ICN harmless
from all claims threatened or made against ICN by any third party in connection
with performance of the Services to the fullest extent permitted under
applicable law, provided that ICN has acted with respect to the matter that is
the subject of the claim in good faith and in accordance with applicable law.
The Company will sign its standard directors and officers indemnification
agreement with the ICN Member. The Company represents and warrants to the
Indemnitees that its Certificate of Incorporation (or Charter) and Bylaws
contain provisions authorizing such indemnification of ICN and the ICN Member to
the maximum extent permitted by law.
VII. NON-SOLICITATION. Except as otherwise expressly set forth herein, the
Company and ICN each agree not to solicit the other's employees without the
other party's prior written consent. If an employee should resign from one party
and become employed by the other party within the 120-day period following such
employee's effective date of resignation, then the hiring party will be deemed
to have committed a material breach of its obligations hereunder. The Company
and ICN agree that, in such event, the hiring party will pay the other party for
such breach an amount equal to one-third (1/3) of the terminated employee's
first year's targeted cash compensation, including base salary and bonus,
offered by the hiring party. For the purposes of this paragraph, "employee" will
include the statutory definition of "employee", as well as any independent
contractors working for ICN under a written agreement. The foregoing does not
apply to Company's ability to recruit and hire the ICN Member as its CEO so long
as the Company makes the $54,000 payment specified in Section 3 of the
Agreement, which replaces the payment for deemed breach described in the third
sentence of this paragraph.
VIII. DISPUTE RESOLUTION. If a dispute between any of the parties arises in
connection with the Agreement, the parties shall first
attempt to resolve the dispute through good faith negotiation. If the dispute
cannot be resolved through good faith negotiation, the parties shall refer the
dispute to the American Arbitration Association ("AAA") for resolution through
binding arbitration by a single arbitrator pursuant to the AAA's rules
applicable to commercial disputes, under California law, without reference to
conflicts of laws principles. The arbitration shall be held in Santa Xxxxx
County, California, and the decision reached by the arbitrator shall be entered
as a judgment in any court of competent jurisdiction. THE PARTIES SPECIFICALLY
WAIVE THEIR RIGHTS TO A JURY TRIAL IN LIEU OF FINAL AND BINDING ARBITRATION.
Nothing in this paragraph is intended to limit the ICN Member's rights to
enforce her rights by filing a claim with the California Labor Board.
IX. GENERAL PROVISIONS.
(1) WAIVER. The waiver by any party of any breach by any other shall
not waive subsequent breaches of the same or different kind.
(2) NOTICES. Any notice required or permitted to be given under this
Agreement shall be given in writing and shall be hand delivered or sent by
express delivery to the address of the parties listed on the signature page of
the Agreement.
(3) CONTROLLING LAW. The Agreement shall be governed by and construed
in accordance with the laws of the State of California, without reference to
conflicts of laws principles.
(4) SEVERABILITY. In the event that any of the provisions of this
Agreement shall be held by a court or other tribunal of competent jurisdiction
to be unenforceable, such provision will be enforced to the maximum extent
permissible and the remaining portions of this Agreement shall remain in full
force and effect.
(5) HEADINGS; SURVIVAL. All headings are for information purposes
only, and are not to be construed as part of the provision that they describe.
The following provisions shall survive the termination of the Agreement: Section
3 (ICN Fees); Section 4 (Equity); as well as the following sections from
Exhibit A: Section III (Fees and Expenses); Section V (No Guarantees); Section
VI (Indemnification); Section VII (Non-Solicitation); Section VIII (Dispute
Resolution); Section IX (General Provisions).
(6) ENTIRE AGREEMENT. The Agreement, which includes all exhibits,
constitutes the complete and exclusive agreement between the parties pertaining
to the subject matter hereof, and supersedes in their entirety any and all
written or oral agreements previously existing between the parties with respect
to such subject matter herein. Each party acknowledges that it is not entering
into this Agreement on the basis of any representations not expressly contained
herein. Each party represents that its legal counsel has reviewed the Agreement,
and therefore agrees that any ambiguities will not be construed against any
party hereto. Any modifications of this Agreement must be in writing and signed
by all parties.
(7) ASSIGNMENT. Neither this Agreement nor any right or obligation
hereunder may be assigned by any party without the express prior written consent
of the other parties or their successors (which consent will not be unreasonably
withheld), except for an assignment by any party to another entity acquiring
such party through direct acquisition, merger or similar transaction, and which
entity has expressly agreed in writing to assume all rights and obligations of
such acquired party hereunder, and any purported assignment in derogation of the
foregoing shall be without any effect.
(8) COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which will be considered an original, but all
of which together will constitute one and the same instrument.
