EMPLOYMENT AGREEMENT
AGREEMENT,
dated as of September 19, 2007, between ODYNE CORPORATION, a
Delaware corporation (the “
Company ”),
and ALAN TANNENBAUM (the “
Executive ”).
WITNESSETH :
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 first anniversary (the “
Expiration Date ”)
of the initial closing of the Company’s pending private
placement of up to $3,500,000 of 10% senior secured convertible
debentures and warrants to purchase common stock (the
“
Private Placement ”),
unless the parties mutually agree in writing upon a later date. The
term of Executive’s employment hereunder may be extended for
additional terms of one year each provided that the Company gives
Executive at least 30 days’ prior written notice of its
election to extend the term of Executive’s employment and
Executive agrees in writing to such extension.
2.
DUTIES
(a)
During the term of this Agreement, the Executive shall hold the
position of Chief Executive Officer 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 Company shall cause the Executive to be nominated for election
to the Board for so long as the Executive remains the
Company’s Chief Executive Officer.
(c)
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 for the Executive’s
interest in Ergowerx International, a developer of an ergonomic
keyboard, or through the Executive’s ownership of an interest
of not more than 2% in any entity (or except such as does not (i)
require a significant time commitment by the Executive or (ii)
impair the ability of the Executive to discharge his duties
hereunder).
(d)
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.
(e)
The Executive shall be based in the Company’s offices located
in Suffolk County, New York, except for required travel on the
Company's business.
3.
REMUNERATION
(a)
Salary .
As compensation for his services pursuant hereto, starting on
January 1, 2008, 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)
Participation in Company Plans .
Executive shall be entitled, during the term of his employment
hereunder, to participate in such of the Company’s incentive
compensation 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)
Stock Options .
(i)
The Executive shall be entitled to receive stock options (the
“
Stock Options ”)
to purchase (A) 300,000 shares of Common Stock, par value $.001 per
share, of the Company (the “
Common Stock ”)
at an exercise price equal to the closing price of the Common
Stock, as reported by the OTC Bulletin Board, on the date of the
initial closing of the Private Placement, which options shall be
granted on the Commencement Date and pursuant to the
Company’s 2006 Equity Incentive Plan, (B) 2,400,000 shares of
Common Stock at an exercise price equal to the average closing
price of the Common Stock, as reported by the OTC Bulletin Board,
for the 30 trading days on and prior to the date of the initial
closing of the Private Placement, which options shall be granted on
the Commencement Date, but subject to the terms of a newly-created
incentive compensation plan to be adopted by the Company’s
stockholders (as to which the Company’s current executive
officers have agreed to vote their respective shares of Common
Stock in favor of), and (C) 300,000 shares of Common Stock at an
exercise price equal to the closing price of the Common Stock, as
reported by the OTC Bulletin Board, on January 2, 2008, which
options shall be granted on January 2, 2008, and pursuant to the
Company’s 2006 Equity Incentive Plan. Each Stock Option shall
vest in three equal installments on the second, third and fourth
annual anniversaries of the grant date, and shall be issued
pursuant to a customary stock option agreement, which the Executive
and the Company shall enter into on or reasonably promptly
following the respective grant date.
(ii)
In the event of termination of employment (A) by the Executive
without Good Reason (as defined in Section 7(b)(iv)), on or prior
to the second anniversary of the Commencement Date or (B) pursuant
to Section 7(a)(i)(A), all Stock Options not theretofore
exercisable will lapse and be forfeited. In the event the
Executive’s employment is terminated for any other reason on
or prior to the second anniversary of the Commencement Date, all
Stock Options not theretofore exercisable will thereupon become
exercisable. Except as otherwise provided in the following
paragraph, each Stock Option will expire ten years after it is
granted.
(iii)
In the event of the termination of the employment of the Executive,
all unexercised and exercisable stock options granted to him
hereunder must be exercised by him, or his estate (or heir(s)), as
the case may be, (A) within 12 months of the date of termination,
if the termination is due to disability, as defined in Section
7(a)(i)(B), (B) in the event of death of the Executive, within 12
months of the date of termination, as defined in Section
7(a)(i)(C), if the termination is due to death
or within
three months of the date of termination if the termination is for
any other reason;
provided ,
however ,
that in the event the Executive’s employment is terminated
for Cause, all unvested stock options granted to him hereunder
become null and void immediately upon termination. Any vested
options must be exercised within three months of the date of
termination.
(d)
Other Benefits .
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 remuneration of the
Executive during the period of employment hereunder.
(e)
No Additional Compensation .
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.
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, life insurance and 401(k) plan that are
substantially consistent with the programs of the Company in
effect prior to the Commencement Date.
5.
VACATION
The
Executive shall be entitled to four weeks of vacation (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, Disability or Death .
(i)
The 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 (as such term is defined
below).
(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(a)(i)(B), 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.
(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), the 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, dishonesty or habitual drug or alcohol abuse by the
Executive related to or affecting the performance o
| 
