EXECUTIVE EMPLOYMENT
AGREEMENT
This Executive
Employment Agreement is entered into and effective this 29th day of
December 2006 between Axion Power International, Inc., a Delaware
corporation, having a place of business at 3601 Clover Lane, New
Castle Pennsylvania (the “Company”) and Edward Buiel of
New Castle, Pennsylvania, (the “Executive”).
WHEREAS, the Company is engaged in the ongoing
development of a novel technology for a supercapacitor/battery
hybrid that replaces the lead-based negative electrode in a
lead-acid battery with a highly permeable nanoporous carbon
electrode; and
WHEREAS, the Company is desirous of making appropriate
arrangements for the long term management and continued development
of its technology; and
WHEREAS, the Company is desirous of retaining the
Executive to serve as its Vice President and Chief Technology
Officer on the conditions set forth herein for the entire term of
this Agreement, and
WHEREAS, in such capacity, the Executive will have access
to all of the business methods and confidential information
relating to the Company and its business activities including, but
not limited to, its proprietary techniques and technologies, its
operational and financial matters, its business and financial and
development plans, its personnel training and development programs
and its industry relationships.
NOW
THEREFORE, in
consideration of the promises and of the mutual covenants and
agreements herein contained, the parties hereto agree as
follows:
1.
Executive Representations
and Warranties. The
Executive represents and warrants to the Company that he is free to
accept employment hereunder and that he has no prior or other
obligations or commitments of any kind to anyone that would in any
way hinder or interfere with his acceptance of, or the full,
uninhibited and faithful performance of this Agreement, or the
exercise of his best efforts as an officer of the
Company.
2.
Employment and
Duties. The Company
shall employ the Executive as its Vice President and Chief
Technology Officer, or such other comparable executive capacity as
the Board of Directors of the Company shall specify from time to
time. The Executive will work from the Company's office in New
Castle Pennsylvania. If an electrode manufacturing plant or
corporate headquarters facility is established elsewhere in the
Northeast the Executive will work from the newly established
facility, provided that regular travel to the Company’s New
Castle facilities will be expected. The Executive’s initial
responsibilities shall include all of the duties and
responsibilities described below:
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Collaborate
with the Senior Management Team in the development of an overall
business plan for Axion. This should include the development of
operational plans and modifications to existing battery production
lines to produce Axion’s e 3 Supercell with
minimal capital expenditure.
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Work to
identify profitable product lines for value added lead-acid battery
products that will augment the lead acid battery products already
being built at New Castle and,
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Develop a
commercialization strategy for Axion hybrid devices that includes
activated carbon supply, electrode production, negative electrode
assembly, and device assembly.
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Ensure that
proper testing, reports, product evaluation, and any other
necessary R&D activities are conducted effectively and
efficiently.
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Work to assure
that manufacturing operations achieve business plan goals. This
cooperative endeavor includes ensuring all necessary functions are
planned appropriately and are completed when necessary.
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Write and
distribute to the BOD a monthly report outlining the key events and
challenges that need to be overcome so that Axion can meet its
established goals. Include status with respect to goals; important
test results; product improvement opportunities; key
commercialization status and challenges; resource requirements;
general organizational health, and any other key information that
is deemed of interest to the BOD.
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Provide
coaching and training for all Axion employees to ensure Axion goals
are achieved and that clear consistent communication is maintained
at all times.
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Collaborate
with the Management Team to develop effective manufacturing
processes and line extensions in support of new value-add lead-acid
battery products and line extensions, assuring market feedback is
incorporated into all.
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Ensure process
quality and proper quality control measures are adopted for all
product development and manufacturing efforts.
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Support fund
raising activities whereever necessary.
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Support,
encourage, and lead intellectual property development within the
organization.
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Ensure that all
elements of a safety program are developed and ensure that a safe
working environment is maintained for all employees at all
times.
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In addition,
the Executive shall, perform such other mutually agreeable
functions and duties as the Board of Directors or chief executive
officer may entrust, delegate or assign to him from time to
time.
3.
Conduct of
Executive. During
the entire Term of this Agreement, the Executive shall devote his
full business time, effort, skill and attention to the affairs of
the Company and its subsidiaries, will use his best efforts to
promote the interests of the Company, and will discharge his
responsibilities in a diligent and faithful manner, consistent with
sound business practices. During the entire Term of this Agreement,
the Executive shall agree to serve as a member of the
Company’s
Board of
Directors if appointed to such position by the board of directors
or elected to such position by the shareholders of the Company. In
furtherance of the foregoing:
(a) The
Executive understands and agrees that he owes the Company a
fiduciary duty, without limiting any other obligations or
requirements that are imposed on the Executive by this Employment
Agreement or by law. As such, the Executive shall occupy a position
of and commit to the highest degree of trust, loyalty, honesty and
good faith in all of his dealings with and on behalf of the
Company.
(b) The
Executive represents that his employment by the Company will not
conflict with any obligations which he has to any other person,
firm or entity. The Executive specifically represents that he has
not brought to the Company, and he will not bring to the Company,
any materials or documents of a former or present employer, or any
confidential information or property of any other person, firm or
entity.
(c) The
Executive shall not, without disclosure to and approval of the
Board of Directors of the Company, directly or indirectly, assist
or have an active interest in (whether as a principal, stockholder,
lender, employee, officer, director, partner, consultant or
otherwise) in any person, firm, partnership, association,
corporation or business organization, entity or enterprise that
competes with or is engaged in a business which is substantially
similar to the business of the Company except that ownership of not
more than 1% of the outstanding securities of any class of any
publicly-held corporation shall not be deemed a violation of this
sub-paragraph 3(c).
(d) The
Executive shall promptly disclose to the directors of the Company,
in accordance with the Company’s policies, full information
concerning any interests, direct or indirect, he holds (whether as
a principal, stockholder, lender, Executive, director, officer,
partner, consultant or otherwise) in any business which, as
reasonably known to the Executive purchases or provides services or
products to the Company or any of its subsidiaries, provided that
the Executive need not disclose any such interest resulting from
ownership of not more than 1% of the outstanding securities of any
class of any publicly-held corporation.
(e) The
Executive shall not disclose to any person or entity (other than to
the Company’s Board of Directors or to others as required, in
his judgment, in the due performance of his duties under this
Agreement) any confidential or secret information with respect to
the business or affairs of the Company or any of its subsidiaries
or affiliates.
For a period of
one year after termination for cause, the Executive shall not
engage in any business or activity that seeks to develop or
commercialize a lead-acid battery/supercapacitor hybrid device
technology that would be directly competitive with the business of
the Company, including the activities described above.
Notwithstanding the generality of the foregoing, nothing in this
Agreement shall be deemed to preclude the Executive from
participating in other business opportunities if and to the extent
that (i) such business opportunities are not directly competitive
with the business of the Company, (ii) the Executive’s
activities with respect to such opportunities do not have a
material adverse
effect on the
performance of the Executive’s duties hereunder, and (iii)
the Executive’s activities with respect to such opportunity
have been fully disclosed in writing to the Company’s Board
of Directors.
4.
Conditions of
Employment.
(a) Term
of Employment. Unless
terminated earlier in accordance with the provisions of this
Agreement, the Company agrees to employ the Executive for a
four-year period commencing on December 30, 2006 and terminating on
December 29, 2010 (the “Term”). On or before September
30, 2010, the Company and the Executive shall open negotiations for
a mutually acceptable renewal contract. In the absence of a renewal
contract, this agreement shall be automatically renewed for an
additional two-year term.
(b) Place
of Employment. The
Executive shall occupy offices at the Company’s New Castle
facilities. The Executive may be required to relocate from this
business location should a carbon electrode or corporate
headquarters facility be established at some future time in the
Northeastern United States. The Executive expressly agrees that
regular travel shall be necessary as part of his duties.
(c) Ownership of Company Records and
Reports. The Executive
shall not, except in the performance of his duties hereunder, at
any time or in any manner make or cause to be made any copies,
pictures, duplicates, facsimiles, or other reproductions or
recordings or any abstracts or summaries of any reports, studies,
memoranda, correspondence, manuals, records, plans or other written
or otherwise recorded materials of any kind whatever belonging to
or in the possession of the Company, or of any subsidiary or
affiliate of the Company, including but not limited to materials
describing or in any way relating to the Company’s business
activities including, but not limited to, its proprietary
techniques and technologies, its operational and financial matters,
its business and financial and development plans, its personnel
training and development programs and its industry relationships.
The Executive shall have no right, title or interest in any such
material, and the Executive agrees that, except in the performance
of his duties hereunder, he will not, without the prior written
consent of the Company remove any such material from any premises
of the Company, or any subsidiary or affiliate of the Company, and
immediately upon the termination of his employment for any reason
whatsoever Executive shall return to the Company all such material
in his possession.
(d) Company's Trade Secrets . Without the prior written consent of the
Company, the Executive shall not at any time (whether during or
after his employment with the Company) use for his own benefit or
purposes or for the benefit or purposes of any other person, firm,
partnership, association, corporation or business organization,
entity or enterprise, or disclose in any manner to any person,
firm, partnership association, corporation or business
organization, entity or enterprise, except in the performance of
his duties hereunder, any trade secrets, or any information data,
know-how or knowledge constituting trade secrets belonging to, or
relating to the affairs of the Company, or any subsidiary, former
subsidiary, or affiliate of the Company.
(e) Inventions, Copyrights. Trademarks
. The Executive shall promptly
disclose to the Company (and to no one else) all improvements,
discoveries, ideas and inventions that
may be of significance to the
Company, or any subsidiary or affiliate of the Company, made or
conceived alone or in conjunction with others (whether or not
patentable, whether or not made or conceived at the request of or
upon the suggestion of the Company or any subsidiary or affiliate
of the Company during or out of his usual hours of work or in or
about the premises of the Company or elsewhere) while in the employ
of the Company or of any subsidiary or affiliate of the Company, or
made or conceived within one year after the termination of his
employment by the Company or of any subsidiary or affiliate of the
Company if resulting from, suggested by or relating to such
employment. All such improvements, discoveries, ideas and
inventions shall be the sole and exclusive property of the Company
and are hereby assigned to the Company. At the request of the
Company and at its cost, the Executive shall assist the Company, or
any person or persons from time to time designated by it, to obtain
the copyright, trademark and/or grant of patents in the United
States and/or in such other country or countries as may be
designated by the Company, covering such improvements, discoveries,
ideas and inventions and shall in connection therewith and in
connection with the defense of any patents execute such
applications, statements or other documents, furnish such
information and data and take all such other action (including, but
not limited to, the giving of testimony) as the Company may from
time to time reasonably request.
5.
Compensation. The Company shall compensate the Executive for
all services to be rendered by him during the Term as
follows:
(a) The
Executive shall receive a salary of $14,000 per month for services
rendered during the first year of its term. The increase in the
Executive’s salary to $14,000 per month shall be retroactive
to October 1, 2006. The Executive’s Salary shall be reviewed
on a annual basis and subject to renegotiation based on the
performance of the Executive and the Company.
(b) The
Executive shall participate in any executive compensation plans
adopted by the shareholders of the Company; provided, however, that
the discretionary authority to determine the level of the
Executive’s participation therein and
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