EXECUTIVE EMPLOYMENT AGREEMENTEmployment Agreement Amendment |
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Exhibit 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT made as of the 12th day of September, 2007, by and between Electro Energy, Inc., a Florida corporation (the Company), and Timothy E. Coyne (the Executive), with an address of 51 Hunter Ridge Road, Monroe, CT 06468.
WHEREAS, the Company and the Executive have not entered into an employment agreement setting forth the terms and conditions of such employment; and
WHEREAS, the Executive and the Company desire to formalize the terms of Executives compensation package that was recommended at a meeting of the Companys Compensation Committee held on August 27, 2007 and approved at a meeting of the Companys Board of Directors held on September 12, 2007.
NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency which is hereby acknowledged, the parties hereby agree as follows:
1. Employment, Acceptance and Term.
1.1 Subject to the terms and conditions of this Agreement, the Company hereby agrees to employ the Executive and the Executive agrees to serve the Company, as the Chief Financial Officer and Vice President of Finance of the Company.
1.2 The period during which the Executive shall furnish services hereunder (the Employment Period) shall commence on the date first written above (the Effective Date) and shall end on the third anniversary of the Effective Date; provided, however, that either the Company or the Executive may elect to terminate this Agreement subject to the termination and severance provisions set forth herein.
2. Duties and Authority. During the Employment Period: (a) the Executive shall use his best efforts, skill and abilities to promote and protect the interests of the Company and devote his full business time and energies to the business and affairs of the Company; (b) the Executive shall not accept any other employment outside the Company and any of its subsidiaries or affiliates (whether or not for compensation), nor shall he permit personal business interests to interfere with the performance of his duties hereunder; and (c) as Chief Financial Officer and Vice President of Finance of the Company, the Executive shall have such duties as are customarily assigned to such positions and such additional duties assigned to him from time to time by the Companys Board of Directors that are reasonably appropriate for the Chief Financial Officer and Vice President of Finance of the Company.
3. Compensation.
3.1 Base Salary. The Company shall pay to the Executive in accordance with the Companys compensation payment policies a base salary at the annual rate of $170,000, payable in equal biweekly installments (Base Salary). The Executives Compensation shall be subject to annual review at the end of each Calendar year, or as otherwise agreed to by the parties hereto, and may be increased but not decreased by an amount determined by the Company, in its sole discretion, after taking into consideration the Executives performance, the Companys performance, and such other factors as the Company deems relevant.
3.2 Stock Grants. During the Employment Period, Executive shall be eligible to participate in the Companys Restricted Stock Plan and shall be granted restricted shares of the Companys Common Stock, in an amount valued no less than one percent (0.5%) of the increase in the Companys market valuation as of December 31 of each year.
3.3 Bonus. During the Employment Period, the Executive shall be eligible to receive an annual bonus (Bonus) in accordance with the Companys bonus policy as such policy is in effect from time to time, in the sole discretion of the Company, provided that the Executive is employed by the Company on the bonus payment date and is not then subject to a notice of termination or has not provided notice of his intention to resign. Executive shall have the opportunity to earn a Bonus in the amount of a maximum of fifty percent (50%) of the Executives Base Salary. The Bonus opportunity shall be based upon performance measures to be mutually agreed upon by the Executive and the Company prior to the start of the fiscal year to which the bonus will relate or as soon as practicable thereafter. The Company may pay up to one-half of the Bonus in the form of restricted stock.
3.4 Taxes and Withholdings. All references herein to compensation (including, but not limited to, Base Salary and the Bonus) to be paid to the Executive are to the gross amounts thereof which are due hereunder. The Company shall have the right to deduct therefrom all sums which may be required to be deducted or withheld under any provision of U.S. federal, state or local law (including, but not limited to, social security payments, income tax withholding, and any other deduction required by law) now in effect or which may become effective at any time during the term of this Agreement.
4. Expenses. In addition to the compensation payable to the Executive pursuant to Section 3 hereof, the Company shall, upon submission of proper vouchers in respect thereof, pay or reimburse the Executive in accordance with the Companys reimbursement and expenses policies, as in effect from time to time, for all reasonable business and entertainment expenses necessarily incurred by him during the Employment Period and in connection with the Companys business.
5. Additional Benefits.
5.1 During the Employment Period, the Executive shall be entitled to participate (subject to uniformly applicable requirements for participation), in any health, disability, profit sharing, retirement or insurance plan maintained by the Company from time to time for the benefit of its similarly situated employees.
5.2 During the Employment Period, the Executive shall be entitled to twenty vacation paid days per year in accordance with the Companys policies which may require that vacations be used or forfeited in any given year. Vacations are to be taken at such time or times as shall be mutually agreed upon between the Company and the Executive.
5.3 During the Employment Period, the Executive shall be entitled to continue his participation in the Companys Incentive Stock Option Plan (ISOP) in accordance with the rules of such Plan as in effect from time to time. Accordingly, Executive shall be granted 100,000 Stock Options (or the equivalent number of Stock Options after any post-July, 2007 stock splits or reverse stock splits) per year, the first grant to occur on the Effective Date. Such grants shall be awarded in accordance with the ISOP, but in no event shall the grants be awarded later than February 15 of each calendar year. Grants of Stock Options to the Executive shall be subject to vesting in equal amounts beginning on the first anniversary of their respective grant date and ending on the fourth anniversary of their respective grant date, provided that the Executive remains employed by the Company on the respective vesting dates, subject to any accelerated vesting as provided herein.
6. Termination of Employment. Notwithstanding the provisions of Section 1 hereof to the contrary, the Executives employment under this Agreement shall terminate upon the happening of any of the following events, whereupon the Company shall have no further obligations to the Executive hereunder, other than to pay the Executive his Base Salary up to and including his last day of employment, and if applicable, the additional amounts pursuant to Section 7:
6.1 The Company shall have the right to discharge the Executive at any time with Cause by written notice. For purposes of this Agreement, Cause shall mean (a) material breach (whether by willful act or willful omission or through gross and continuing misconduct or neglect) or violation by the Executive of any material term or provision of this Agreement with failure to cure such breach after thirty days prior written notice by the Company, (b) material breach of that certain Confidentiality and Invention Assignment Agreement executed by the Executive, (c) the Executives failure to act subject to and in accordance with any proper and lawful specific direction of the Board of Directors of the Company or the internal rules and policies established by the Company (as published and delivered to the Executive from time to time), (d) fraud or dishonesty on the part of the Executive or the Executives commission of any act of moral turpitude affecting the Company or its prospects, (e) knowingly providing aid to a competitor constituting a breach to of the Executives fiduciary duties to the Company, or (f) the Executives violation of any material statute governing the business of the Company, or of any material rules or regulations promulgated by any regulatory body governing the Company or its business.
6.2 The Company shall have the right to terminate the Executives employment at any time without Cause by written notice.
6.3 Executives employment under this Agreement shall terminate automatically and without notice, if the Executive shall die during the term hereof.
6.4 Executives employment under this Agreement shall terminate upon (i) not less than sixty (60) days prior written notice to the Executive, if the Executive shall become disabled as defined in any group disability policy maintained by the Company for the benefit of its employees, provided that in the event of such termination, the Executive shall be entitled to receive all compensation and benefits payable to him pursuant to Sections 3, 4 and 5 hereof until the date set forth in such notice and (ii) during the period that the Executive shall be receiving compensation as provided in clause (i) above, he shall for all purposes continue to be considered an employee of the Company.
6.5 Executives employment under this Agreement shall terminate upon termination of the Executives employment with the Company by mutual agreement between the Company and the Executive.
6.6 The Executive may terminate his employment under this Agreement for Good Reason by provision of written notice to the Company within thirty (30) days following the occurrence of the event which constitutes Good Reason. For purposes of this Agreement, Good Reason shall mean a material breach of this Agreement by the Company (including but not limited to a substantial reduction in the Executives duties or substantial decrease in the Executives authority or compensation (excluding decreases in the value of equity-based compensation attributable to market forces) as set forth herein) which breach has not been cured by the Company within fifteen (15) business days after the Executive has provided written notice to the Company alleging such breach.
6.7 The Executive may terminate his employment under this Agreement other than for Good Reason upon the Executives provision of no less than six (6) months prior written notice of resignation to the Company for any reason. The Executive agrees that Executives resignation shall not become effective until the end of that six (six) month notice period unless the Executive and the Company mutually agree otherwise in writing.
7. Effect of Certain Terminations of Employment.
7.1 Upon (i) termination without Cause pursuant to Section 6.2 of this Agreement, (ii) upon non-renewal of this Agreement by the Company or (iii) termination of this Agreement by the Executive for Good Reason pursuant to Section 6.6, then (A) the Company shall, for a period of twelve (12) months from the date of such termination (the Standard Severance Period), (1) continue to pay the Executives Base Salary (at the rate payable at the time of such termination); (2) pay the Executive a pro-rated bonus based on 100% of Executives






