Exhibit 10.1
EMPLOYMENT
AGREEMENT
This EMPLOYMENT AGREEMENT
(the “ Agreement ”) is effective as of
July 29, 2009, by and between BROADWIND ENERGY, INC. (the
“ Company ”), and Stephanie Kushner
(“ Executive ”).
WHEREAS , the Company is engaged in the business of
manufacturing wind turbine tower structures, gearing and gear sets
for wind gearboxes, specialized heavy-haul transportation services
for the wind industry, service and maintenance of wind turbines,
and wind turbine construction labor support (the “
Company Business ”);
WHEREAS , the Company desires to employ Executive and
Executive desires to be employed by the Company; and
WHEREAS , the Company and Executive desire to enter into
this Agreement to set forth the rights, duties, benefits and
obligations with respect to the employment of Executive by the
Company under the terms and conditions herein provided.
NOW, THEREFORE
, in consideration of
Executive’s employment with the Company, and the mutual and
respective covenants and agreements of the parties herein
contained, and other good and valuable consideration present but
not specifically set forth, the parties hereto agree as
follows:
1.
Employment
. The Company hereby agrees to
employ Executive in the position, and with the title, duties and
responsibilities, set forth in Section 2 hereof, and Executive
hereby agrees to be employed by the Company, on the terms and
conditions set forth herein. This Agreement and
Executive’s employment hereunder shall commence on
July 29, 2009 (the “ Start Date ”),
and shall continue for a period of two years, unless sooner
terminated in accordance with the provisions of Section 6
hereof (the “ Term ”). The Term
will thereafter automatically extend for successive one-year
periods, but Executive’s employment may at any time be
terminated in accordance with the provisions of Section 6
hereof.
2.
Duties and
Responsibilities .
Executive shall serve as a financial and business advisor from the
Start Date until August 14, 2009 and, during such time, shall
report directly to the Chief Executive Officer of the
Company. Beginning as of August 15, 2009 and for the
remainder of the Term, Executive shall serve as Chief Financial
Officer for the Company and the principal financial officer for
Securities and Exchange Commission reporting purposes, and shall
report to the Chief Executive Officer, the Company’s Board of
Directors (the “ Board ”), and his/their
designees. Executive shall have the duties and
responsibilities that are commensurate with the position she holds
during the time she holds such position, as well as such other
duties as may be assigned to Executive by the Chief Executive
Officer or the Board from time to time. Executive shall
devote all of her working time and best efforts to the business and
affairs of the Company except for such time as shall reasonably be
required to serve in connection with civic or charitable
activities, or manage Executive’s financial matters, provided
that such activities, in the aggregate, do not interfere with
Executive’s ability to perform the duties and
responsibilities of her employment hereunder. Executive shall
follow the direction of the Chief Executive Officer, the Board and
his/their designees, and shall perform all duties and
responsibilities of the
position that she holds, as those
duties and responsibilities may change from time to time.
Executive shall comply with the Company’s standards, policies
and procedures in effect on the date of this Agreement and as they
may change from time to time.
3.
Compensation and Related
Matters.
(a)
Base Salary
. Executive shall receive an
initial annual base salary of Three Hundred Twenty-Five Thousand US
Dollars ($325,000), less required and authorized withholding and
deductions. Executive’s salary shall be subject to
review and adjustment by the Company at least annually, and paid in
accordance with the Company’s regular payroll schedule as it
applies to salaried employees (“ Base Salary
”). Notwithstanding the preceding sentence, in no event
shall Executive’s Base Salary be reduced by the Company
without the Executive’s consent.
(b)
Bonus . Except as provided in the following
sentence, Executive will be eligible for a target annual bonus in
an amount equal to 75% of her Base Salary, and pursuant to such
terms, as set forth in the Broadwind Energy Inc. Executive
Short-Term Incentive Plan (the “Incentive Plan”) or
other written arrangement adopted by the Company. For 2009
only, Executive shall not be eligible for a bonus under the
Incentive Plan but, shall be eligible for a target bonus of 75% of
her Base Salary multiplied by a fraction, the numerator of which is
the number of days she is employed by the Company during 2009 and
the denominator of which is 365, with the actual payment amount
based on individual objectives to be mutually agreed upon by the
Company and the Executive no later than August 31, 2009.
Such bonus shall be paid to Executive no later than March 15,
2010.
(c)
Stock . The Executive shall be eligible to
participate in the Company’s common stock incentive plan as
in effect from time to time. The Company will grant Executive
25,000 stock options and 25,000 restricted stock units with a
four-year vesting schedule under the Company’s 2007 Equity
Incentive Plan subject to approval by the Board and the
Company’s Equity Awards Policy. The Company may grant
Executive additional stock options, restricted stock units or other
awards under the Company’s 2007 Equity Incentive Plan based
on individual and Company performance criteria to be established by
the Board.
(d)
Benefits . Executive shall be entitled to all
rights and benefits for which she is eligible under the terms and
conditions of the Company’s standard benefits and
compensation practices that may be in effect from time to time and
provided by the Company to its employees generally. In
addition to, and not in limitation of, the foregoing, during the
Term, Executive shall be eligible to accrue up to four weeks (20
business days) of paid time off (PTO) per anniversary year
exclusive of any business day with respect to which the Company is
closed for business due to any federal, state or local holiday or
any day off generally granted by the Company to its employees,
subject to the Company’s then-current paid time off policy
(which shall not have the effect of reducing said four weeks (20
business days) of paid vacation). In addition to, and not in
limitation of the foregoing, during the Term, Executive shall
receive any additional benefits generally provided by the Company
to executive employees of the Company, including group health
insurance for Executive and dependants, life insurance, and long
term disability insurance, and participation in the Company’s
401(k) plan, all in accordance with applicable plan
documents.
2
(e)
Expense Reimbursement
. The Company will reimburse
Executive for reasonable business expenses in accordance with the
Company’s standard expense account and reimbursement
policies.
4.
Representations and Warranties of
Executive . In
order to induce the Company to employ Executive, Executive hereby
represents and warrants to the Company as follows:
(a)
Binding Agreement
. This Agreement has been duly
executed and delivered by Executive and constitutes a legal, valid
and binding obligation of Executive and is enforceable against
Executive in accordance with its terms.
(b)
No Violations of Law
. The execution and delivery
of this Agreement and the other agreements contemplated hereby by
Executive do not, and the performance by Executive of her
obligations under this Agreement and the other agreements
contemplated hereby will not, violate any term or provision of any
law, or any writ, judgment, decree, injunction, or similar order
applicable to Executive.
(c)
Litigation
. Executive is not involved in
any proceeding, claim, lawsuit, or investigation alleging
wrongdoing by Executive before any court or public or private
arbitration board or panel or governmental department, commission,
board, bureau, agency or instrumentality.
(d)
No Conflicting
Obligations.
Executive is not under, or bound to be under in the future, any
obligation to any person or entity that is or would be inconsistent
or in conflict with this Agreement or would prevent, limit, or
impair in any way the performance by her of her obligations
hereunder, including but not limited to any duties owed to any
former employers not to compete or use or disclose confidential
information. Executive represents and agrees that she will
not disclose to the Company or use on behalf of the Company any
confidential information or trade secrets belonging to a third
party, including any former employer. Executive further
represents and agrees that she has returned, or will return before
her last day of employment with her current employer, all property
belonging to Executive’s current and previous employers,
including but not limited to any and all confidential
information.
5.
Restrictive
Covenants.
(a)
Confidentiality
Critical . The
parties agree that the business in which the Company is engaged is
highly sales-oriented and the goodwill established between
Executive and the Company’s customers and potential customers
is a valuable and legitimate business interest worthy of protection
under this Agreement. Executive acknowledges and agrees that
developing and maintaining business relationships is an important
and essential business interest of the Company. Executive
further recognizes that, by virtue of her employment by the
Company, she will be granted otherwise prohibited access to
confidential and proprietary data of the Company which is not known
to its competitors and which has independent economic value to the
Company and that she will gain an intimate knowledge of the
Company’s business and its policies, customers, employees and
trade secrets, and of other confidential, proprietary,
3
privileged, or secret information of
the Company and its customers (“ Customers
”) (collectively, all such nonpublic information is referred
to as “ Confidential Information
”).
This Confidential Information
includes, but is not limited to data relating to the
Company’s marketing and servicing programs, procedures and
techniques; business, management and personnel strategies; the
criteria and formulae used by the Company in pricing its products,
loss control and information management services; the
Company’s products and services; the Company’s computer
system and software; lists of prospects; customer lists; the
identity, authority and responsibilities of key contacts at
accounts of Customers; and the composition and organization of
Customers’ business. Executive recognizes and admits
that this Confidential Information constitutes valuable property of
the Company, developed over a long period of time and at
substantial expense, and worthy of protection. Executive
acknowledges and agrees that only through her employment with the
Company could she have the opportunity to learn this Confidential
Information.
(b)
Confidential
Information .
Executive shall not at any time (for any reason), directly or
indirectly, for himself or on behalf of any other person or entity,
(A) disclose to any person or entity (except to employees or
other representatives of the Company who need to know such
Confidential Information to the extent reasonably necessary for
Executive to perform her duties under this Agreement or such
employees or representatives to perform their duties on behalf of
the Company, and except as required by law) any Confidential
Information, including, without limitation, business or trade
secrets of, or products or methods or techniques used by, the
Company, or any Confidential Information whatsoever concerning the
Customers, (B) use, directly or indirectly, for her own
benefit or for the benefit of another (other than a Customer) any
of such Confidential Information, or (C) assist any other
person or entity in connection with any action described in either
of the foregoing clauses (A) and (B).
(c)
Noninterference with
Employees .
Executive further agrees that the Company has expended considerable
time, energy and resources into training its other employees
(“Co-Workers”). As a result, during her
employment with the Company and for a period of eighteen (18)
months thereafter, Executive shall not, for any reason, directly or
indirectly, for himself or on behalf of any other person or entity,
(A) induce or attempt to induce any Co-Worker to terminate
employment with the Company, (B) interfere with or disrupt the
Company’s relationship with any of the Co-Workers,
(C) solicit, entice, hire, cause to hire, or take away any
person employed by the Company at that time or during the eighteen
(18) month period preceding Executive’s last day of
employment with the Company, or (D) assist any other person or
entity in connection with any action described in any of the
foregoing clauses (A) through (C).
(d)
Non-competition
. Executive further agrees
with the Company to the following provisions, all of which
Executive acknowledges and agrees are necessary to protect the
Company’s legitimate business interests. Executive
covenants and agrees with the Company that:
(i)
Unless otherwise agreed between the
parties, Executive shall not, during her employment with the
Company and for a period of eighteen (18) months thereafter, either
directly or indirectly, engage in, render service or other
assistance to, or
4
sell products or services, or
provide resources of any kind, whether as an owner, partner,
shareholder, officer, director, employee, consultant or in any
other capacity, whether or not for consideration, to any person,
corporation, or any entity, whatsoever, that owns, operates or
conducts a business that competes, in any way, with the Company
Business (as defined at the start of this Agreement), other than
the ownership of 5% or less of the shares of a public company where
Executive is not active in the day-to-day management of such
company. With respect to the post employment application of
this Section 5(d)(i), the restrictions shall extend only to
those specific countries or provinces where the Company conducts
business on the day that Executive’s employment with the
Company terminates.
(ii)
Executive shall not, during her
employment with the Company and for a period of eighteen (18)
months thereafter, either directly or indirectly, (A) solicit,
call on or contact any Customer of the Company with whom Executive
has had material contact during her employment with the Company for
the purpose or with the effect of offering any products or services
of any kind offered by the Company at that time or during her
employment with the Company, (B) request or advise any present
or future vendors or suppliers to the Company to cancel any
contracts, or curtail their dealings, with the Company, or
(C) assist any other person or entity in connection with any
action described in any of the foregoing clauses (A) through
(B).
(iii)
During her employment with the
Company, Executive shall not own, or permit ownership by
Executive’s spouse or any minor children under the parental
control of Executive, directly or indirectly, an amount in excess
of five percent (5%) of the outstanding shares of stock of a
corporation, or five percent (5%) of any business venture of any
kind, which operates or conducts a business that competes, in any
way, with the Company.
(e)
Non-disparagement
. At any time during or after
Executive’s employment with the Company, Executive shall not
disparage the Company or any shareholders, directors, officers,
employees, or agents of the Company. During and after
Executive’s employment with the Company, neither the Company
nor its directors or officers shall disparage Executive to third
parties.
(f)
Understandings.
(i)
The provisions of this
Section 5 shall be construed as an agreement independent of
any other claim. The existence of any claim or cause of
action of Executive against the Company, whether predicated on
Executive’s employment or otherwise, shall not constitute a
defense to the enforcement by the Company of the terms of
Section 5 of this Agreement. Executive waives any right
to a jury trial in any litigation relating to or arising from this
Agreement.
(ii)
Executive acknowledges and agrees
that the covenants and agreements contained herein are necessary
for the protection of the Company’s legitimate business
interests and are reasonable in scope and content. Executive
agrees that the restrictions contained in this Section 5 are
reasonable and will not unduly restrict her in
5
securing other employment or income
in the event her employment with the Company ends. Executive
acknowledges and agrees that she executed this Agreement on or
before her first day of employment with the Company.
(g)
Injunctive Relief
. Executive acknowledges and
agrees that any breach by her of any of the covenants or agreements
contained in this Section 5 would give rise to irreparable
injury and would not be adequately compensable in damages.
Accordingly, Executive agrees that the Company may seek and obtain
injunctive relief against the breach or threatened breach of any of
the provisions of this Agreement in addition to any other legal or
equitable remedies available.
(h)
Reformation and
Survival . The
Company and Executive agree and stipulate that the agreements and
covenants contained in this Agreement and specifically of this
Section 5 are fair and reasonable in light of all of the facts
and circumstances of the relationship between them. The
Company and Executive agree and stipulate that Executive has hereby
agreed to be bound to the obligations, restrictions and covenants
of this Section 5 as a condition to her employment and in
consideration of her compensation, stock option grant, restricted
stock unit grant, severance terms, and all other terms and
provisions of this Agreement. The Company and Executive
acknowledge their awareness, however, that in certain circumstances
courts have refused to enforce certain agreements not to
compete. The Company and Executive agree that, if any term,
clause, subpart, or provision of this Agreement is for any reason
adjudged by a Court of competent jurisdiction to be invalid,
unreasonable, unenforceable or void, the same will be treated as
severable, and shall be
