EXHIBIT 10.1
EMPLOYMENT
AGREEMENT
This
EMPLOYMENT AGREEMENT (the “ Agreement
”) is effective as of July 14, 2009 (the “
Effective Date ”), between WindTamer
Corporation, a New York corporation (the “
Company ”), and Gerald Brock (“
Executive ”).
R E C I T
A L S:
WHEREAS , the Company desires to engage the Executive,
and the Executive wishes to serve the Company on the terms and
conditions set forth below.
NOW,
THEREFORE , in
consideration of the mutual promises and covenants set forth
herein, the parties agree as follows:
1.
Employment; Duties .
(a) The
Company hereby agrees to employ Executive as its Chief Executive
Officer. Executive hereby accepts such
employment. Executive will report to the Company’s
Board of Directors. Executive will perform those duties
and have such authority and powers as are customarily associated
with his position and such other duties as the Board of Directors
may reasonably request from time to time.
(b) During
the Term, the Executive shall, on a full time basis, use his skills
and render services to the best of his abilities on behalf of the
Company.
(c) During
the Term, the Executive and the Company may mutually agree to have
the Company employ Executive with a title other than Chief
Executive Officer and with such duties as are customarily
associated with such title.
2.
Term
. The
term (the “ Term ”) of this Agreement
shall commence on the Effective Date and shall continue for three
(3) years from the Effective Date unless otherwise terminated as
provided herein (together with any Renewal Term, as hereafter
defined, shall be referred to as the “ Term
”). This Agreement shall automatically be
extended for successive one (1) year terms pursuant to the terms
and conditions of this Agreement (each, a “ Renewal
Term ”), unless otherwise terminated by written
notice from one party to the other no less than sixty (60) days
prior to the end of the Term or any subsequent Renewal
Term.
3.
Compensation .
(a)
Annual Salary . In consideration for the services
rendered by Executive on behalf of the Company during the Term, the
Company shall pay Executive, commencing on the Effective Date, an
annual salary equal to $192,540 (the “ Base
Salary ”), payable in accordance with the
Company’s regular payroll practices. All forms of
compensation referred to in this Agreement are subject to reduction
to reflect applicable federal, state and local withholding and
payroll taxes.
(b)
Bonuses . In addition to his Base Salary,
Executive shall be eligible to receive a bonus in an amount, if
any, determined by the Company’s Board of Directors based
upon the financial performance of the Company to be paid only out
of positive EBITDA of the Company.
4.
Benefits . In addition to the
compensation set forth above, the Company shall provide Executive
with the following benefits during the Term:
(a) Executive
shall be entitled to three (3) weeks of vacation
during each calendar year (pro-rated for any partial calendar year)
that he is employed hereunder during which vacation his annual
salary shall be paid in full. Any vacation not taken by
Executive shall not carryover into the succeeding
year. All unused and accrued vacation shall be paid to
Executive (or his estate) upon Executive’ termination of
employment. Such vacation may only be taken with the express
written pre-approval from the Chief Executive Officer and at such
time or times as are not inconsistent with the reasonable business
needs of the Company.
(b) The
Company shall provide Executive with up to 5 days of paid sick
leave each calendar year (pro-rated for any partial calendar year);
unused sick days shall not carryover into the succeeding
year. The Company also shall provide Executive with
holiday pay as provided by the Company to its other
executives.
(c) The
Company shall make available family medical insurance for Executive
under the medical insurance plan provided to other executives of
the Company or a substantially similar plan. In addition, Executive
and his dependents shall be entitled to participate in such other
benefits as may be extended to active employees of the Company and
their dependents including retirement, 401(k), group insurance,
hospitalization, medical or other benefits made available by the
Company to its employees generally. Further, in the
event that the Company desires to obtain “key man” life
insurance on the life of Executive during the term, Executive shall
cooperate with the Company in obtaining such insurance.
5.
Expenses . Executive will be
reimbursed for all ordinary and necessary business expenses
incurred by him in connection with his employment (including
without limitation, expenses for travel and entertainment incurred
in conducting or promoting business for the Company) upon
submission by Executive of receipts and other documentation in
accordance with the Company’s normal reimbursement
procedures.
6.
Confidential Information . Executive shall
not, during the Term or at anytime during the five (5) years after
termination of his employment, disclose, except as required or
necessary in the course of his employment by the Company or as
otherwise authorized by the Company, any Confidential Information
(as defined herein). “ Confidential
Information ” shall mean any information existing as
of the date of this Agreement, or thereafter developed, in which
the Company has a proprietary interest, including, but not limited
to, information relating to its patents, technology, research and
development, technical data, trade secrets, know-how, products,
services, finances, operations, sales and marketing, customers and
customer information, licenses, orders for the purchase or sale of
products, personnel matters and/or other information relating to
the Company, whether communicated orally, electronically or in
writing, or otherwise obtained by Executive as a
result of his employment, or through observation or examination of
the Company’s business.
7.
Non-Competition Covenant; Non Solicitation Covenant
.
(a) During
the Term and for a period of two years thereafter (the “
Restricted Period ”), Executive agrees that he
will not, directly or indirectly (including, without limitation,
whether as consultant, an officer, employee or director), engage
in, or have any interest in any person, firm, corporation, business
or other entity (as an officer, director, employee, agent,
stockholder, or other security holder, creditor, consultant or
otherwise) that engages in any business activity where a
substantial aspect of the business of the Company is conducted, or
planned to be conducted, at any time during the Restricted Period,
which business activity is the same as, similar to or competitive
with the Company as the same may be conducted from time to
time.
(b) Notwithstanding
anything herein to the contrary, Executive shall not be prevented
or limited from (i) investing in the stock or other securities of
any corporation whose stock or securities are publicly owned and
regularly traded on any public exchange, (ii) serving as a
director, officer or member of professional, trade, charitable and
civic organizations, or (iii) passively investing (not to exceed
being a beneficial owner of more than 3% of the outstanding Common
Stock) his assets in such a form and manner as will not conflict
with the terms of this Agreement and will not require services
(whether as consultant, an officer, employee or director) on the
part of Executive in the operation of the business of the entities
in which such investments are made.
(c) In
furtherance of the foregoing, Executive shall not, during the
Restricted Period, directly or indirectly, in connection with any
business that engages in any business a
