Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment
Agreement (“Agreement”) is made effective as of
November 1, 2007 by and between Open Energy Corporation (the
“Company”) and Christopher Gopal (“Gopal”
or “Employee”) (individually, a “party” and
together, the “parties”).
NOW, THEREFORE, in
consideration of the mutual promises set forth herein, the parties
agree as follows:
Position and
Responsibilities.
1.
Employment . Employee will begin employment with the Company
on November 1, 2007, as Executive Vice President, World Wide
Operations. Employee reports directly to the President and COO of
the Company. Employee shall have the powers and duties commensurate
with such position. Employee’s precise responsibilities and
job description are subject to change at any time in the sole and
absolute discretion of the Company.
2.
Outside Activities . Employee shall devote his best efforts
and substantially all of his business time and attention to the
business of the Company and performance of the services customarily
incident to such office and to such other services as the CEO or
board of directors my reasonably request. During his employment,
Employee shall not, without Employer’s prior written consent,
render to others services of any kind for compensation, or engage
in any other business activity that would materially interfere with
the performance of his duties under this Agreement. However,
subject to Employer’s approval, Employee will be permitted to
serve on a maximum of two Boards of Directors, with their attendant
duties and compensation; these Directorships have not been
identified or determined as of this date.
3.
At Will Employment . Employee will be employed on an at-will
basis. Either Employee or Company may terminate the Employment at
any time, with or without cause. The Company also retains the right
to transfer, demote, suspend or administer discipline with or
without cause and with or without notice, at any time. The at-will
nature of the employment relationship may only be modified in a
writing signed by Employee and the Company’s CEO.
Notwithstanding the foregoing, if Employee is terminated without
cause, he shall receive twelve months continuation of salary and
benefits.
Compensation
4.
Base Annual Salary . The Company shall pay to Employee an
initial base salary at an annual rate of two hundred thousand
dollars ($200,000) in accordance with the Company’s customary
payroll practices.
5.
Bonuses . Employee will be entitled to participate in a
fiscal 2007-08 Incentive plan to be designed and approved by the
Compensation Committee of the Board of Directors. In the absence of
a fiscal 2007-08 Incentive Plan, the Company and Employee will
define a fiscal 2008 performance target to be mutually agreed by
December 31, 2007. The amount of the bonus will be based on the
attainment of a fiscal 2007-08 performance target and based on the
performance of the Company and the Employee. Additionally the
Employee will be entitled to participate in future fiscal year
incentive plans with performance conditions to be
agreed.
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6.
Equity Compensation . The Company shall grant an initial
1,200,000 options under the terms of the 2006 Equity Compensation
Plan which shall vest 180,000 on November 1, 2007 and 85,000 at the
end of each calendar quarter for twelve quarters beginning December
31, 2007 and ending September 30, 2010. On October 1, 2008,
provided that Employee is actively employed under this Agreement
and his employment has not been terminated prior to that date, the
Company shall grant additional equity compensation to Employee
under the terms of the 2006 Equity Compensation Plan or any
comparable equity compensation plan which may then be in effect
which shall provide the benefit of the equivalent of 1,800,000
shares of the Company’s common stock as of the date of this
Agreement, vesting one twelfth at the end of each calendar quarter
for twelve quarters beginning December 31, 2008 and ending
September 30, 2011.
7.
Withholdings . All compensation and benefits to Employee
hereunder shall be subject to all federal, state, local and other
withholdings and similar taxes and payments required by applicable
law.
Expense Allowances and Fringe
Benefits.
8.
Fringe Benefits . During his employment, Employee shall be
eligible to receive and participate in all standard fringe benefits
generally made available to other executive employees when and as
he becomes eligible for them, as such benefits may be determined,
changed, or rescinded from time to time by the Company
9.
Vacation Accrual . Employee shall be eligible to accrue paid
vacation each year from the date of employment in accordance with
the Company policy. The vacation accrual will initially be at the
rate of four weeks per annum and be subject to a maximum accrual,
or cap, of five (5) weeks.
10.
Expense Reimbursement . The Company shall reimburse Employee
for any and all expenses reasonably incurred by the Employee in the
course and scope of Employee’s duties and which are
substantiated in accordance with Company’s reasonable
policies and procedures. Air travel to other countries shall be
business class.
11.
IRC Section 409A . To the extent that this Agreement or any
part thereof is deemed to be a nonqualified deferred compensation
plan subject to Section 409A of the Code and the regulations and
guidance promulgated thereunder, (i) the provisions of this
Agreement shall be interpreted in a manner to comply in good faith
with Section 409A of the Code, and (ii) the parties hereto
agree to amend this Ag
