EXECUTIVE EMPLOYMENT AGREEMENT
This
Executive Employment Agreement is entered into this 4th day of
April 2005 and effective as of April 1, 2005, between Axion
Power International, Inc., a Delaware corporation, having a
place of business at 100 Caster Avenue, Vaughan, Ontario
Canada (the “Company”) and Thomas Granville of
Buffalo, New York, (the “Executive”).
WHEREAS, the
Company is engaged in research and development relating to 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
management of its business affairs; and
WHEREAS, the
Company is desirous of retaining the Executive to serve as its
Chief Executive 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.
Pre-existing Employment Agreement. The
Company has been advised that (1) the Executive is subject to a
long-term employment agreement with Gallagher Elevator Co.,
Buffalo, New York; and (2) Gallagher Elevator is willing to
authorize the Executive to accept a position as the Company’s
Chief Executive Officer for a maximum period of two years, but only
on the condition that the Company reimburse Gallagher Elevator for
the reasonable cost of hiring a suitable temporary replacement for
the Executive. The Company further acknowledges that as a condition
of this Agreement it will be required to pay the sum of $14,500 per
month directly to Gallagher Elevator in satisfaction of the
Executive’s ongoing obligations under his prior employment
agreement. With the exception of his obligations to Gallagher
Elevator, Executive represents and warrants to the Company that he
is free to accept employment hereunder and that he has no 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 executive officer of the
Company.
2.
Employment and Duties. The
Company shall employ the Executive as the Chief Executive Officer
of the Company and its wholly owned subsidiary Axion Power
Corporation, a Canadian Federal corporation, or in such other
comparable executive capacity as the Board of Directors of the
Company shall specify from time to time. The Executive shall be
employed by and will work for the Company at Company's office in
the Toronto Metropolitan Area. The
Executive’s
initial responsibilities shall include all of the duties and
responsibilities of the Chief Executive Officer as described
in the By-laws of the Company (as supplemented by a more
detailed job description that will subsequently be negotiated
between the Executive and the Board of Directors), as the same
may be amended from time to time. In addition, the Executive
shall, perform such other mutually agreeable functions and
duties as the Board of Directors may entrust or delegate 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 elsewhere in
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 (during the period
before the signing of this Agreement) 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.
Employment
Agreement—Page 2
(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 is
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 will employ the Executive for a two-year
period commencing on April 1, 2005 and terminating on March 31,
2007 (the “Term”). Not less than 90 days before the
termination of this Agreement, the Company and the Executive shall
open negotiations for a suitable contract renewal. 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 principal
executive office in the Toronto Metropolitan Area (or at such other
Company office as the Company and the Executive may agree from time
to time) which will be maintained for his use by the Company at the
Company’s expense. The Executive shall not be required during
the Term of this Agreement to relocate from the Toronto
Metropolitan Area to any other business location maintained by the
Company although 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
Employment
Agreement—Page 3
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 total cash compensation of $21,000 per
month during the period commencing on April 1, 2005 and
terminating on Mar
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