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Exhibit
10.1
EMPLOYMENT
AGREEMENT
This Employment Agreement
(“Agreement”) is made as of the 7th day of April, 2008,
between Plug Power Inc., a Delaware corporation (the
“Company”), and Andrew Marsh (the
“Executive”).
WHEREAS, the Executive and
the Company desire to enter into this Agreement setting forth the
terms and conditions for the employment relationship of the
Executive with the Company.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree
as follows:
1. Employment . The
term of this Agreement shall extend from April 8, 2008 (the
“Commencement Date”) until the first anniversary of the
Commencement Date; provided, however, that the term of this
Agreement shall automatically be extended for one additional year
on the anniversary of the Commencement Date and on each anniversary
thereafter unless, not less than 90 days prior to each such date,
either party shall have given notice to the other that it does not
wish to extend this Agreement; provided, further, that if a Change
in Control occurs during the original or extended term of this
Agreement, the term of this Agreement shall continue in effect for
a period of not less than 12 months beyond the month in which the
Change in Control occurred. The term of this Agreement shall also
terminate upon any Date of Termination (as defined in
Section 4) and may be referred to herein as the
“Term.”
2. Position and Duties
. During the Term, the Executive shall serve as the Chief Executive
Officer and President of the Company, and shall have supervision
and control over and responsibility for the day-to-day business and
affairs of the Company and shall have such other powers and duties
as may from time to time be prescribed by the Chairman of the Board
of Directors of the Company (the “Board”), provided
that such duties are consistent with the Executive’s position
or other positions that he may hold from time to time. The
Executive shall devote his full working time and efforts to the
business and affairs of the Company. Notwithstanding the foregoing,
the Executive may serve on other boards of directors, with the
approval of the Board, or engage in religious, charitable or other
community activities as long as such services and activities are
disclosed to the Board and do not materially interfere with the
Executive’s performance of his duties to the Company as
provided in this Agreement. p
3. Compensation and
Related Matters .
(a) Base Salary . The
Executive’s initial annual base salary shall be $375,000.00.
The Executive’s base salary shall be redetermined annually by
the Compensation Committee of the Board. The base salary in effect
at any given time is referred to herein as “Base
Salary.” The Base Salary shall be payable in substantially
equal bi-weekly installments.
(b) Bonuses . The
Executive shall be eligible to earn an annual cash bonus pursuant
to the terms of the Plug Power Executive Incentive Plan (the
“Bonus Plan”) as in effect from time to time. For
fiscal year 2008, the Executive will be eligible to earn an annual
cash
bonus under the Bonus Plan of up to 50%
of his Base Salary. Within sixty days of the Commencement Date, the
Executive and the Company shall agree on the metrics to be used in
measuring the Executive’s performance and the resulting
bonus.
(c) Incentive Equity .
The Executive will be eligible to participate in the
Company’s 1999 Stock Option and Incentive Plan (the
“Plan”). On the Commencement Date, the Company will
grant to the Executive under the Plan a non-qualified stock option
to purchase up to 400,000 shares of the Company’s common
stock. The option will vest in three installments of 133,333 1/3
shares each on the first, second and third anniversaries of the
date of grant. The exercise price of the option will be equal to
the closing price of the Company’s common stock on the NASDAQ
Global Market on the date of grant. The option will be subject to
the terms of the Plan and the Company’s standard form
Non-Qualified Stock Option Agreement for employees.
(d) Relocation . The
Company will reimburse the Executive for the following reasonable
and documented expenses incurred by the Executive in connection
with relocating his home from Texas to the Albany, New York area:
movement and storage of household goods; real estate brokerage
costs relating to the sale of the Executive’s home in Texas;
travel, food and lodging expenses for a house-hunting trip to the
Albany area; closing costs relating to the purchase of a new home;
and temporary living expenses for housing in the Albany area for up
to three months. The Company will also provide the Executive with a
tax gross-up on such reimbursed amounts.
(e) Expenses . The
Executive shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by him in performing services
hereunder during the Term, in accordance with the policies and
procedures then in effect and established by the Company for its
senior executive officers.
(f) Other Benefits .
During the Term, the Executive shall be entitled to continue to
participate in or receive benefits under all of the Company’s
Employee Benefit Plans in effect on the date hereof, or under plans
or arrangements that provide the Executive with benefits at least
substantially equivalent to those provided under such Employee
Benefit Plans. As used herein, the term “Employee Benefit
Plans” includes, without limitation, each pension and
retirement plan; supplemental pension, retirement and deferred
compensation plan; savings and profit-sharing plan; stock ownership
plan; stock purchase plan; stock option plan; life insurance plan;
medical insurance plan; disability plan; and health and accident
plan or arrangement established and maintained by the Company on
the date hereof for employees of the same status within the
hierarchy of the Company. During the Term, the Executive shall be
entitled to participate in or receive benefits under any employee
benefit plan or arrangement which may, in the future, be made
available by the Company to its executives and key management
employees, subject to and on a basis consistent with the terms,
conditions and overall administration of such plan or arrangement.
Any payments or benefits payable to the Executive under a plan or
arrangement referred to in this Section 3(f) in respect of any
calendar year during which the Executive is employed by the Company
for less than the whole of such year shall, unless otherwise
provided in the applicable plan or arrangement, be prorated in
accordance with the number of days in such calendar year during
which he is so employed. Should any such payments or benefits
accrue on a fiscal (rather than calendar) year, then the proration
in the preceding sentence shall be on the basis of a fiscal year
rather than calendar year.
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(g) Vacations . The
Executive shall be entitled to twenty (20) paid vacation days
in each calendar year, which shall be accrued ratably during the
calendar year. The Executive shall also be entitled to all paid
holidays given by the Company to its executives.
4. Termination . The
Executive’s employment hereunder may be terminated without
any breach of this Agreement under the following
circumstances:
(a) Death . The
Executive’s employment hereunder shall terminate upon his
death.
(b) Disability . The
Company may terminate the Executive’s employment if he is
disabled and unable to perform the essential functions of the
Executive’s then existing position or positions under this
Agreement with or without reasonable accommodation for a period of
180 days (which need not be consecutive) in any 12-month period. If
any question shall arise as to whether during any period the
Executive is disabled so as to be unable to perform the essential
functions of the Executive’s then existing position or
positions with or without reasonable accommodation, the Executive
may, and at the request of the Company shall, submit to the Company
a certification in reasonable detail by a physician selected by the
Company to whom the Executive or the Executive’s guardian has
no reasonable objection as to whether the Executive is so disabled
or how long such disability is expected to continue, and such
certification shall for the purposes of this Agreement be
conclusive of the issue. The Executive shall cooperate with any
reasonable request of the physician in connection with such
certification. If such question shall arise and the Executive shall
fail to submit such certification, the Company’s
determination of such issue shall be binding on the Executive.
Nothing in this Section 4(b) shall be construed to waive the
Executive’s rights, if any, under existing law including,
without limitation, the Family and Medical Leave Act of 1993, 29
U.S.C. §2601 et seq . and the Americans with
Disabilities Act, 42 U.S.C. §12101 et seq.
(c) Termination by Company
for Cause . At any time during the Term, the Company may
terminate the Executive’s employment hereunder for Cause. For
purposes of this Agreement, “Cause” shall mean:
(i) a willful act of dishonesty by the Executive with respect
to any matter involving the Company or any subsidiary or affiliate,
or (ii) conviction of the Executive of a crime involving moral
turpitude, or (iii) the gross or willful failure by the
Executive to substantially perform the Executive’s duties
with the Company (other than any such failure after the Executive
gives notice of termination for “Good Reason”), which
failure is not cured within 30 days after a written demand for
substantial performance is received by the Executive from the Board
which specifically identifies the manner in which the Board
believes the Executive has not substantially performed the
Executive’s duties. For purposes of clauses (i)
and (iii) hereof, 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 without reasonable
belief that the Executive’s act, or failure to act, was in
the best interests of the Company and its subsidiaries and
affiliates.
(d) Termination Without
Cause . At any time during the Term, the Company may terminate
the Executive’s employment hereunder without Cause. Any
termination by the Company of the Executive’s employment
under this Agreement which does not constitute a termination for
Cause under Section 4(c) or result from the death or
disability of the Executive under Section 4(a) or
(b) shall be deemed a termination without Cause.
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(e) Termination by the
Executive . At any time during the Term, the Executive may
terminate his employment hereunder for any reason, including but
not limited to Good Reason from and after a Change in Control (as
defined in Section 6(c)). If the Executive provides notice to
the Company under Section 1 that he elects to discontinue the
extensions, such action shall be deemed a voluntary termination by
the Executive and one without Good Reason. For purposes of this
Agreement, “Good Reason” shall mean that the Executive
has complied with the “Good Reason Process”
(hereinafter defined) following the occurrence of any of the
following events after a Change in Control: (i) a material
diminution in the Executive’s responsibilities, authority or
duties; (ii) a material diminution in the Executive’s
Base Salary; (iii) a material change in the geographic
location at which the Executive provides services to the Company;
or (iv) the material breach of this Agreement by the Company.
“Good Reason Process” shall mean that (i) the
Executive reasonably determines in good faith that a “Good
Reason” condition has occurred; (ii) the Executive
notifies the Company in writing of the occurrence of the Good
Reason condition within 60 days of the occurrence of such
condition; (iii) the Executive cooperates in good faith with
the Company’s efforts, for a period not less than 30 days
following such notice (the “Cure Period”), to remedy
the condition; (iv) notwithstanding such efforts, the Good
Reason condition continues to exist; and (v) the Executive
terminates his employment within 60 days after the end of the Cure
Period. If the Company cures the Good Reason condition during the
Cure Period, Good Reason shall be deemed not to have
occurred.
(f) Notice of
Termination . Except for termination as specified in
Section 4(a), any termination of the Executive’s
employment by the Company or any such termination by the Executive
shall be communicated by written Notice of Termination to the other
party hereto. For purposes of this Agreement, a “Notice of
Termination” shall mean a notice which shall indicate the
specific termination provision in this Agreement relied
upon.
(g) Date of
Termination . “Date of Termination” shall mean:
(i) if the Executive’s employment is terminated by his
death, the date of his death; (ii) if the Executive’s
employment is terminated by the Company for Cause under
Section 4(c), the date on which Notice of Termination is
given; (iii) if the Executive’s employment is terminated
by the Company under Section 4(b) or 4(d), 30 days after the
date on which a Notice of Termination is given; (iv) if the
Executive’s employment is terminated by the Executive under
Section 4(e) without Good Reason, 30 days after the date on
which a Notice of Termination is given, and (v) if the
Executive’s employment is terminated by the Executive under
Section 4(e) with Good Reason, the date on which a Notice of
Termination is given after the end of the Cure Period.
Notwithstanding the foregoing, in the event that the Executive
gives a Notice of Termination to the Company, the Company may
unilaterally accelerate the Date of Termination and such
acceleration shall not result in a termination by the Company for
purposes of this Agreement.
5. Compensation Upon
Termination .
(a) Termination
Generally . If the Executive’s employment with the
Company is terminated for any reason during the Term, within 30
days of the Date of Termination, the Company shall pay or provide
to the Executive (or to his authorized representative or estate)
any earned but unpaid base salary, incentive compensation earned
but not yet paid, unpaid expense reimbursements, accrued but unused
vacation and any vested benefits the Executive may have under any
employee benefit plan of the Company through the Date of
Termination (the “Accrued Benefit”). The Executive
shall not be entitled to receive any other termination payments or
benefits from the Company except as specifically provided in
Section 5(b) or Section 6.
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(b) Termination by the
Company Without Cause . If the Executive’s employment is
terminated by the Company without Cause as provided in
Section 4(d), then the Company shall, through the Date of
Termination, pay the Executive his Accrued Benefit. If (i) the
Executive’s employment is terminated by the Company without
Cause as provided in Section 4(d), (ii) the Executive
signs a general release of claims in a form and manner satisfactory
to the Company (the “Release”) within 21 days of the
receipt of the Release and does not revoke such Release during the
seven-day revocation period, and (iii) the Executive complies
with the Employee Patent, Confidential Information and Non-Compete
Agreement dated April 7, 2008 between the Executive and the
Company (the “Confidentiality Agreement”),
then:
(A) the Company shall pay the
Executive an amount equal to the sum of (A) 1.0 times the
Executive’s Base Salary plus (B) 1.0 times the
Executive’s annual bonus for the immediately preceding fiscal
year. Such amount shall be paid out in a lump sum on the first
payroll date after the Date of Termination or expiration of the
seven-day revocation period for the Release, if later;
(B) upon the Date of
Termination, all stock options and other stock-based awards held by
the Executive in which the Executive would have vested if he had
remained employed for an additional 12 months following the Date of
Termination shall vest and become exercisable or nonforfeitable as
of the Date of Termination;
(C) subject to the
Executive’s copayment of premium amounts at the active
employees’ rate, the Executive may continue to participate in
the Company’s then applicable group health, dental, vision
and life insurance program for 12 months following the Date of
Termination , and the Company shall provide continuation of health
benefits after this 12-month period pursuant to the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended
(“COBRA”), such benefits to be determined as though the
Executive’
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