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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Amended Agreement made and entered into as of the 12 day of February,
2001 amends the prior Agreement dated December 15, 2000 (the "Effective Date")
by and between Elektryon (the "Company"), and Xxxxxx Xxxxxxxxxxx (the
"Employee").
WITNESSETH THAT:
WHEREAS, the parties desire to enter into this Agreement pertaining to the
employment of the Employee by the Company;
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth below, it is hereby covenanted and agreed by the Company and the Employee
as follows:
1. Employment Period. Subject to the terms and conditions of this
Agreement, the Company hereby agrees to employ the Employee during the
Employment Period (as defined below) and the Employee hereby agrees to remain in
the employ of the Company and to provide services during the Employment Period
in accordance with this Agreement. The "Employment Period" shall be the period
beginning on the Effective Date and ending on the third anniversary thereof.
The parties agree that, on or about the second anniversary of the Effective
Date, if the Employee is then employed by the Company, they will negotiate the
terms and conditions of the two years of employment following the expiration of
the Term, assuming that both parties mutually desire to continue the employment
relationship after the expiration of the Term and mutually desire to enter into
an employment agreement (or an amendment to this Agreement) to evidence such
relationship.
1. Duties. The Employee agrees that, during the Employment Period
while she is employed by the Company, she will devote her full business time,
energies and talents to serving as the General Counsel of the Company and
providing services for the Company at the direction of the Chief Executive
Officer of the Company (the "CEO") or the Executive Board. The Employee shall
have such duties and responsibilities as may be assigned to her from time to
time by the CEO and/or the Executive Board as long as these duties are
consistent with duties of General Counsels similarly situated she shall perform
all duties assigned to her faithfully and efficiently, and shall have such
authorities and powers as are inherent to the undertakings applicable to her
position and necessary to carry out the responsibilities and duties required of
her hereunder.
2. Compensation. Subject to the terms and conditions of this
Agreement, during the Employment Period while the Employee is employed by the
Company, the Company shall compensate her for her services as follows:
(a) The Employee shall receive, for each 12-consecutive month period
beginning on the Effective Date and each anniversary thereof, an
annual salary of $250,000 (the "Salary"), which Salary shall be
payable in accordance with the Company's normal payroll
practices.
(b) The Employee shall receive bonus payments from the Company as
follows:
(i) upon completion of the Company's audited financial
statements for the year 1999 by the accounting firm
of Xxxxxx Xxxxxxxx, the Employee shall be entitled
to a bonus of $50,000, payable not later than 5
business days after such financial statements are
completed by Xxxxxx Xxxxxxxx, and
(ii) upon the effectiveness at the SEC of Form 10 on
behalf of Elektryon, the Employee shall be entitled
to a bonus of $50,000, payable no later than 5
business days after the Form 10 becomes effective;
and
(iii) upon consummation of an initial public offering of
the Company's common stock (an "IPO"), the Employee
shall be entitled to a bonus of $100,000, payable no
later than 5 business days after the date of the
final prospectus relating to the IPO.
All bonus payments referred to in 2(b) above will be payable
immediately upon any change of control of the Company. Change of Control is
defined as any or all of the following: an asset sale of substantial assets of
the Company,
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a substantial change in the Executive Board of the Company, a material equity
infusion greater than $10 Million into the Company during the Employment period.
(c) The Employee shall be provided with bonus, incentive, pension,
welfare and other fringe benefits to the same extent and on the
same terms and conditions as those benefits are provided by the
Company from time to time to its similarly situated senior
executive employees.
(d) The Employee shall be reimbursed by the Company, on terms
and conditions that are substantially similar to those that
apply to other similarly situated senior executive
employees of the Company, for reasonable out-of-pocket
expenses for entertainment, travel, meals, lodging and
similar items which are actually incurred by the Employee in
the promotion of the Company's business.
(e) The Board of Directors of the Company agrees to grant (or a
committee thereof) as of the Effective Date or as soon as
practicable thereafter, stock options to purchase 250,000
shares of the Company's common stock at an exercise price of
$2.00 per share, which options shall vest as follows (i)
one-half as of the Effective Date, and (ii) one-half as of
the 90 day anniversary of the Effective Date. All options
will vest upon any change of control of the Company as
defined in 2 above. The options shall be exercisable for a
period of 60 months from the date on which they vest
regardless of Employee's employment status at that time.
(f) To compensate the Employee for relocation and moving
expenses, the Employee shall be entitled to the following
payments from the Company:
(i) The Employee shall be entitled to a cash payment of
$60,000, payable as soon as practicable following the
Effective Date.
(iii) The Employee shall be entitled to reimbursement for
the reasonable expenses incurred by the Employee (A)
with respect to the sale of the Employee's principal
residence Connecticut, including commissions and
broker's and attorney's fees incurred by the Employee
with respect to such sale, (B) with respect to moving
the Employee's household goods and possessions from
Connecticut and New York to the Company's
administrative headquarters, when established, and (C)
for temporary lodging expenses for herself and her
family in Odessa, Texas or at the location of the
Company's administrative headquarters, for the period
beginning on the Effective Date and continuing up to
the six month anniversary of the date on which the
location of the Company's administrative headquarters
is determined. Any reimbursements under this
subparagraph (iii) shall be paid within a reasonable
time following the presentation by the Employee of
appropriate documentation of the expenses to the
Company.
3. Rights and Payments Upon Termination. The Employee's right to
benefits and payments, if any, for periods after the date on which his
employment with the Company terminates for any reason (his "Termination Date")
shall be determined in accordance with this Section 4:
(a) Minimum Payments. If the Employee's Termination Date occurs during the
Employment Period for any reason, the Employee shall be entitled to the
following payments, in addition to any payments or benefits to which the
Employee may be entitled under the following provisions of this Section 4
(other than this paragraph (a)):
(i) her earned but unpaid Salary for the period ending on her Termination
Date but in any event no less than one year's annual salary; and
(ii) her accrued but unpaid vacation pay for the period ending with her
Termination Date, as determined in accordance with the Company's
policy as in effect from time to time
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Payments to be made to the Employee pursuant to this paragraph 3(a)
shall be made in a lump sum as soon as practicable after the
Employee's Termination Date. Except as may be otherwise expressly
provided to the contrary in this Agreement, nothing in this Agreement
shall be construed as requiring the Employee to be treated as
employed by the Company following her Termination Date for purposes
of any employee benefit plan or arrangement in which she may
participate at such time.
(b) Termination by the Company for Reasons Other Than Cause. If the
Employee's Termination Date occurs during the Employment Period and
is a result of the Employee's termination of employment by the
Company for reasons other than Cause (as defined below) and is not on
account of Employee's death, disability, voluntary resignation,
termination by the Company for Cause or the mutual agreement of the
parties, then the Employee shall receive from the Company for the
period commencing on his Termination Date and ending on the earliest
of (i) last day of the Employment Period, (ii) the date of the
Employee's death, or (iii) the first anniversary of the Termination
Date, the Salary in effect as of her Termination Date, payable in
accordance with the provisions of paragraph 3(a). For purposes of
this Agreement, the term "Cause" shall mean (i) the continuous
failure by the Employee to substantially perform her duties under
this Agreement for 30 days following written notice by a majority of
the non-employee Board members, (ii) the willful, and in bad faith,
failure by Employee to cease engaging in conduct which is
demonstrably and materially injurious to the Company or its
affiliates, monetarily or otherwise for 30 days following written
notice by a majority of the non-employee Board members, (iii) conduct
by the Employee that involves theft, fraud or dishonesty, or (iv) the
Employee's violation of the provisions of Sections 6 or 7 hereof.
(c) Termination for Any Other Reason. If the Employee's Termination Date
occurs during the Employment Period for any reason other than
provided in paragraph (b) above, then the Employee shall have no
right to payments or benefits under this Agreement (and the Company
shall have no obligation to make any such future payments or provide
any such future benefits) for periods after the Employee's
Termination Date.
4. Set-Off. The Company shall be entitled to set off against the amounts
payable to the Employee under this Agreement, any amounts owed to the Company
or its affiliates by the Employee.
5. Confidential Information. The Employee agrees that:
(a) Except as may be required by the lawful order of a court or agency of
competent jurisdiction, or except to the extent that the Employee has
express authorization from the Company, she shall keep secret and
confidential indefinitely all non-public information (including,
without limitation, information regarding litigation and pending
litigation) concerning the Company and its affiliates which was
acquired by or disclosed to the Employee during the course of her
employment (or prior affiliation) with the Company and not to
disclose the same, either directly or indirectly, to any other
person, firm, or business entity, or to use it in any way.
(b)
(c) Upon his Termination Date or at the Company's earlier request, she
will promptly return to the Company any and all records, documents,
physical property, information, computer disks or other materials
relating to the business of the Company and its affiliates obtained
by him during the course of employment (or prior affiliation) with
the Company.
(d) Nothing in the foregoing provisions of this Section 6 shall be
construed so as to prevent the Employee from using, in connection
with his employment for herself or an employer other than the Company
or any of its affiliates, knowledge which was acquired by her during
the course of her employment with the Company and its affiliates, and
which is generally known to persons of his experience in other
companies in the same industry.
6. Noncompetition. While the Employee is employed by the Company, and
for a period of one year after the Employee's Termination Date, the Employee
agrees that she will not directly or indirectly engage in, assist, perform
services for, establish or open, or have any equity interest (other than
ownership of 5% or less of the outstanding stock of any corporation listed on
the New York or American Stock Exchange or included in the National Association
of Securities Dealers Automated Quotation System) in any person, firm,
corporation, or business entity (whether as an employee, officer,
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director, agent, security holder, creditor, consultant, or otherwise) that
engages in any activity in the world in which the Company is conducting
business activities (and in which the Company conducted business activities
during the Employee's employment with the Company) which are the same as,
similar to, or competitive with the business of distributed generation of
electricity. Nothing in this Section 7 shall be construed as limiting the
Employee's duty of loyalty to the Company while she is employed by the Company,
or any other duty she may otherwise have to the Company while she is employed
by the Company.
7. Equitable Remedies. The Employee acknowledges that the Company would
be irreparably injured by a violation of Sections 6 or 7 and agrees that the
Company, in addition to other remedies available to it for such breach or
threatened breach, shall be entitled to a preliminary injunction, temporary
restraining order, other equivalent relief, restraining the Employee from any
actual or threatened breach of Sections 6 or 7 without any bond or other
security being required.
8. Notices. Notices provided for in this Agreement shall be in writing
and shall be deemed to have been duly received when delivered in person or sent
by facsimile transmission, on the first business day after it is sent by air
express courier service or on the second business day following deposit in the
United States registered or certified mail, return receipt requested, postage
prepaid and addressed, in the case of the Company to the following address:
ELEKTRYON
0000 Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
or to the Employee:
Xxxxxx Xxxxxxxxxxx
0000 Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that a notice of change of address shall be
effective only upon actual receipt.
9. Withholding. All compensation payable under this Agreement shall be
subject to customary withholding taxes and other employment taxes as required
with respect to compensation paid by a corporation to an employee and the
amount of compensation payable hereunder shall be reduced appropriately to
reflect the amount of any required withholding. The Company shall have no
obligation to make any payments to the Employee or to make the Employee whole
for the amount of any required taxes.
10. Successors. This Agreement shall be binding on, and inure to the
benefit of, the Company and its successors and assigns and any person acquiring,
whether by merger, reorganization, consolidation, by purchase of assets or
otherwise, all or substantially all of the assets of the Company.
11. Nonalienation. The interests of the Employee under this Agreement are
not subject to the claims of her creditors, other than the Company, and may not
otherwise be voluntarily or involuntarily assigned, alienated or encumbered.
12. Waiver of Breach. The waiver by either the Company or the Employee of
a breach of any provision of this Agreement shall not operate as or be deemed a
waiver of any subsequent breach by either the Company or the Employee.
Continuation of payments hereunder by the Company following a breach by the
Employee of any provision of this Agreement shall not preclude the Company from
thereafter terminating said payments based upon the same violation.
13. Severability. It is mutually agreed and understood by the parties
that should any of the agreements and covenants contained herein be determined
by any court of competent jurisdiction to be invalid by virtue of being vague
or unreasonable, including but not limited to the provisions of Sections 6 and
7, then the parties hereto consent that this Agreement shall be amended
retroactive to the date of its execution to include the terms and conditions
said court deems to be reasonable and in conformity with the original intent of
the parties and the parties hereto consent that under such
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circumstances, said court shall have the power and authority to determine what
is reasonable and in conformity with the original intent of the parties to the
extent that said covenants and/or agreements are enforceable.
14. Applicable Law. This Agreement shall be construed in accordance with
the laws of the State of Nevada.
15. Amendment. This Agreement may be amended or cancelled by mutual
agreement of the parties in writing without the consent of any other person.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a copy hereof continuing multiple
signature pages, each signed by one party hereto, but together signed by both
of the parties hereto.
17. Other Agreements. This Agreement constitutes the sole and complete
Agreement between the Company and the Employee and supersedes all other
agreements, both oral and written, between the Company and the Employee with
respect to the matters contained herein including, without limitation any
severance agreements, consulting agreements or other arrangements between the
parties. No verbal or other statements, inducements, or representations have
been made to or relied upon by the Employee. The parties have read and
understand this Agreement.
Dated as of the date set forth above.
ELEKTRYON
By:
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Its:
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/s/ XXXXXX XXXXXXXXXXX
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Xxxxxx Xxxxxxxxxxx
/s/ [SIGNATURE ILLEGIBLE]
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