Exhibit 10.2
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of September 1, 2006,
between ODYNE CORPORATION, a New York corporation (the "Company"),
and the Executive identified on Exhibit A attached hereto
(the "Executive").
W I T N E S S E T H
:
WHEREAS, the Company desires to retain
the services of the Executive and to that end desires to enter into
a contract of employment with him, upon the terms and conditions
herein set forth; and
WHEREAS, the Executive desires to be
employed by the Company upon such terms and conditions;
NOW, THEREFORE, in consideration of the
premises and of the mutual benefits and covenants contained herein,
the parties hereto, intending to be bound, hereby agree as
follows:
1.
APPOINTMENT AND TERM
Subject to the terms hereof, the Company
hereby employs the Executive, and the Executive hereby accepts
employment with the Company, all in accordance with the terms and
conditions set forth herein, for a period commencing on the date
hereof (the "Commencement Date") and ending on the date (the
"Expiration Date") set forth in Exhibit A , unless the
parties mutually agree in writing upon a later date.
2.
DUTIES
(a) During the
term of this Agreement, the Executive shall be employed in the
position set forth in Exhibit A and shall, unless prevented by
incapacity, devote all of his business time, attention and ability
during normal corporate office business hours to the discharge of
his duties hereunder and to the faithful and diligent performance
of such duties and the exercise of such powers as may be assigned
to or vested in him by the Board of Directors of the Company (the
"Board"), such duties to be consistent with his position. The
Executive shall obey the lawful directions of the Board and shall
use his diligent efforts to promote the interests of the Company
and to maintain and promote the reputation thereof.
(b) The Executive
shall not during his term of employment (except as a representative
of the Company or with the consent in writing of the Board) be
directly or indirectly engaged or concerned or interested in any
other business activity, except through ownership of an interest of
not more than 2% in any entity, provided it does not impair the
ability of the Executive to discharge fully and faithfully his
duties hereunder.
(c)
Notwithstanding the foregoing provisions,
the Executive shall not be prohibited from serving in various
leadership capacities in civic, charitable and professional
organizations. The Executive recognizes that his primary and
paramount responsibility is to the Company. In addition, with
the Board’s approval, the Executive shall be free to serve as
a Director of a non-competing corporation.
(d) The Executive
shall be based in Hauppauge, New York, except for required travel
on the Company's business.
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3.
REMUNERATION
(a) As
compensation for his services pursuant hereto, the Executive shall
be paid a base salary during the first year of his employment
hereunder at the annual rate set forth in Exhibit A .
Such salary shall be increased for any renewal term on each
anniversary of the Commencement Date by an amount equal to 5% of
such salary for the preceding one year period. This amount
shall be payable in equal periodic installments in accordance with
the usual payroll practices of the Company.
(b) Executive
shall be entitled, during the term of his employment hereunder, to
participate in such of the Company’s equity incentive plans
and programs as may from time to time be provided by Company for
its executive officers at such level as shall be determined by
Company’s Compensation Committee or Board of Directors, as
appropriate.
(c) Except as
provided above, in Exhibit A and in Sections 4 and 6 hereof,
the Executive shall not be entitled to receive any additional
compensation, remuneration or other payments from the
Company.
(d)
Notwithstanding anything to the contrary
herein contained, nothing shall prevent the Board of Directors of
the Corporation following the recommendations of the Compensation
Committee from prospectively increasing the salary or other
compensation of the Executive during the period of employment
hereunder.
4. HEALTH
INSURANCE AND OTHER FRINGE BENEFITS
The Executive shall be entitled to
participate in regular employee fringe benefit programs to the
extent such programs are offered by the Company to its executive
employees, including, but not limited to, medical, hospitalization,
dental and disability insurance and life insurance that are
substantially consistent with the programs of the Company in effect
prior to the Commencement Date.
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5.
VACATION
The Executive shall be entitled to the
number of weeks of vacation set forth in Exhibit A (in
addition to the usual national holidays) during each contract year
during which he serves hereunder. Such vacation shall be
taken at such time or times as will be mutually agreed between the
Executive and the Company. Vacation not taken during a
calendar year may not be carried forward.
6.
REIMBURSEMENT FOR EXPENSES
The Executive shall be reimbursed for
reasonable documented business expenses incurred in connection with
the business of the Company in accordance with practices and
policies established by the Company.
7.
TERMINATION
(a) For
Cause, Death, Disability .
(i) Company may
terminate Executive’s employment hereunder:
(A) Upon written
notice to the Executive by the Company at any time terminating the
Executive for Cause.
(B) In the event
the Executive, by reason of physical or mental disability, shall be
unable to perform the services required of him hereunder for a
period of more than 60 consecutive days, or for more than a total
of 90 non-consecutive days in the aggregate during any period of
twelve (12) consecutive calendar months, on the 61st consecutive
day, or the 91st day, as the case may be. The Executive
agrees, in the event of any dispute under this Section 7(b)(ii),
and after written notice by the Board, to submit to a physical
examination by a licensed physician practicing in the New York, New
York area selected by the Board, and reasonably acceptable to the
Executive.
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(C) In the event
the Executive dies while employed pursuant hereto.
(ii) In the event
Executive’s employment hereunder is terminated pursuant to
this Section 7(a), Company shall have no further obligation to make
any further payments hereunder other than amounts that have been
fully earned, but not yet paid to Executive.
(iii) The term
“Cause” shall mean termination as a result of (w)
willful and material malfeasance, dishonestly or habitual drug or
alcohol abuse by the Executive related to or affecting the
performance of his duties, (x) continuing and intentional breach,
non-performance or non-observance of any of the terms or provisions
of this Agreement, but only after notice by the Company of such
breach, nonperformance or nonobservance and the failure of the
Executive to cure such default as soon as practicable (but in any
event within ten (10) days following written notice from the
Company), (y) conduct which the Board in good faith determines
could reasonably be expected to have a material adverse effect on
the business, assets, properties, results of operations, financial
condition, personnel or prospects of the Company (within each
category, taken as a whole), but only after notice by the Company
of such conduct and failure of the Executive to cease such conduct
as soon as practicable (but in any event within ten (10) days
following written notice from the Company), or (z) the
Executive’s conviction of a felony, any crime involving moral
turpitude (including, without limitation, sexual harassment)
related to or affecting the performance of his duties or any act of
fraud, embezzlement, theft of willful breach of fiduciary duty
against the Company.
(b)
Termination without Cause or for Good Reason .
(i) If
Executive's employment is terminated by Company for any reason
other than Cause or the death or disability of Executive, or
Executive's employment is terminated by Executive for Good Reason
(as defined herein):
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(A) Company shall
continue to pay Executive all of the compensation provided for in
Sections 3 and 4 above (including the minimum increases provided
therein) during the remainder of the then-current term of
Executive's employment; and
(B) Executive
shall be entitled to continue to receive medical benefits coverage
(as described in Section 4) at Executive's expense, for the
remainder of Executive's life.
(ii) The
obligations of the Executive pursuant to Section 9 hereof shall
continue for so long as the Executive continues to receive payments
due pursuant to this Section 7(b).
(iii) Except for
the provisions of this Section 7(b), Company shall have no further
obligation to Executive hereunder.
(iv) “Good
Reason” shall mean the following:
(A) material
breach of Company's obligations hereunder;
(B) any decrease
in Executive's salary as increased during the term of
Executive’s employment (except for decreases that are in
conjunction with decreases in executive salaries generally);
or
(C) or any
reduction in Executive's duties or authority inconsistent with the
duties and authority of an executive officer of the
Company.
(c) Voluntary
Termination . In the event Executive's employment is
voluntarily terminated by Executive without Good Reason, Company
shall not be obligated to make any
