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EXHIBIT 10.11
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement"),
made this
23 day of October 2003 (the "Effective Date"), is entered into by
Ocean Power
Technologies, Inc., a New Jersey corporation with a principal place
of business
at 1590 Reed Road, Pennington, New Jersey 08534 (the "Company"),
and Charles F.
Dunleavy, an individual with his primary residence at 3 Waterford
Place, Newton,
Pennsylvania (the "Employee").
WHEREAS, the Company and the Employee entered into an Employment
Agreement
on May 25, 2001 (the "Original Agreement"); and
WHEREAS, the Company and the Employee desire to amend and restate
and
supersede the Original Agreement in its entirety; and
WHEREAS, the Company desires to continue the employment of the
Employee,
and the Employee desires to be employed by the Company pursuant to
the terms of
this Agreement.
NOW THEREFORE, in consideration of the promises and mutual
covenants
contained herein, and other good and valuable consideration, the
receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Term of Employment. The Company hereby agrees to employ the
Employee,
and the Employee hereby agrees to accept employment with the
Company pursuant to
the terms and conditions of this Agreement, for the period
commencing on the
Effective Date and expiring on the day before the first anniversary
thereof,
unless sooner terminated (the "Initial Term"). On the expiration of
the Initial
Term and on each anniversary thereof, the Agreement shall renew
automatically
for additional one-year periods (the "Renewal Term"), unless sooner
terminated
or unless either party notifies the other party in writing of his
or its
intentions not to renew this Agreement not less than sixty (60)
days prior to
the expiration of the then current term ("Notice
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of Nonrenewal"). A Notice of Nonrenewal by the Company of its
intent not to
renew this Agreement shall constitute "Good Reason" for termination
of this
Agreement by the Employee, pursuant to Section 4(d) hereof. Upon a
termination
by either party for any reason and at any time, the payments or
other benefits
stated in Section 5 hereof shall be the exclusive remedy available
to the
Employee under this Agreement.
2. Position and Duties. The Employee shall serve as Senior Vice
President
and Chief Financial Officer of the Company. The Employee shall be
subject to the
supervision of, and shall have such authority and duties to the
Company or its
subsidiaries or affiliates, as are reasonably delegated to him, by
the Board of
Directors of the Company (the "Board") and such duties and
responsibilities
common to Senior Vice Presidents and Chief Financial Officers of
companies of
like size and purpose. The Employee shall devote his full working
time, energy
and skill (reasonable absences for vacations and illness excepted)
to the
business of the Company during the term of this Agreement as is
necessary to
perform the Employee's duties faithfully, competently and
diligently. The
Employee agrees to abide by the rules, regulations, instructions,
personnel
practices and policies of the Company and any Company affiliate or
subsidiary
for or with which the Employee conducts any business, as they may
be changed,
amended or adopted from time to time. Upon approval by the Board,
which approval
shall not be unreasonably withheld, the Employee may devote
reasonable periods
of time to serving on the Boards of Directors of other companies
or
organizations, so long as such service does not unreasonably
interfere with his
duties to the Company and does not constitute a conflict of the
Company's
interests.
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3. Compensation. During the term of this Agreement, the Employee
shall
receive, for all services rendered to the Company hereunder, the
following
salary, compensation and benefits (hereinafter referred to as
"Compensation"):
(a) Base Salary. Commencing on the Effective Date, the Employee
shall
be paid a base salary at the annualized rate of One Hundred Seventy
Thousand
Dollars ($170,000.00). Base salary will be payable in accordance
with the
Company's normal payroll procedures. The Employee's base salary
shall be
reviewed on an annual basis, and positive adjustments may be made
by the
Compensation Committee of the Board (the "Compensation Committee")
in its sole
discretion. The base salary shall not be subject to decrease
without the written
consent of the Employee.
(b) Bonuses. The Employee may be eligible for bonuses pursuant to
any
bonus program designed for employees of the Company. Such bonuses,
if any, shall
be at the sole discretion of the Compensation Committee.
(c) Incentive Compensation. The Employee may be eligible for
incentive
compensation, including stock options, pursuant to any incentive
compensation
program designed for employees of the Company. Such incentive
compensation, if
any, shall be determined by the Compensation Committee in the
exercise of its
sole discretion.
(d) Benefits. The Employee shall be eligible to participate in
all
benefits programs, if any, that the Company establishes and makes
available to
its employees and executives, in accordance with and subject to the
terms and
conditions of such benefits programs. Such programs may include
health and
dental insurance plans, long-term disability insurance plans, life
insurance
plans, and other benefits made available to the Company's employees
from time to
time.
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(e) Reimbursement of Expenses. The Company shall reimburse the
Employee for all reasonable and necessary business-related expenses
incurred or
paid by the Employee in the performance of the Employee's
duties,
responsibilities or services under this Agreement, provided that
the Employee
provides documentation, receipts, vouchers, and/or such other
supporting
information as the Company may request.
(f) Deductions. The Company shall deduct and withhold from the
Employee's compensation all necessary or required taxes, including,
but not
limited to, social security, withholding and otherwise, and any
other applicable
amounts required by law or any taxing authority, as well as such
other
deductions properly authorized in writing by the Employee.
(g) Absences. The Employee shall be entitled to a minimum of 20
days
of paid vacation time per calendar year, as well as sick leave, and
such other
absences in accordance with and subject to the Company's current
policies and
procedures regarding such paid absences. Such policies may be
amended, modified,
or rescinded in the Company's sole discretion.
4. Termination. The employment of the Employee by the Company
shall
terminate upon the occurrence of any of the following:
(a) The Company may terminate the Employee's employment hereunder
for
Cause immediately and with prompt notice to the Employee, which
Cause shall be
determined in good faith by the Board. The Employee shall be
provided a
reasonable opportunity to be heard by the Board, before his
employment is
terminated for Cause hereunder. "Cause" for termination shall
include the
following conduct of the Employee:
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(i) Material breach of any provision of this Agreement by the
Employee
causing a material detrimental effect on the Company;
(ii) Material misconduct as an employee which has a material
detrimental effect on the Company, including: misappropriating
any
funds or property of the Company, or attempting to willfully
obtain
any substantial personal profit from any transaction in which
the
Employee has an interest which is adverse to the interests of
the
Company;
(iii) Gross negligence or knowing refusal to perform the
reasonable
duties assigned to the Employee under or pursuant to this
Agreement;
(iv) Conviction of a felony or plea of no lo contendre to a
felony;
(v) Acts of dishonesty or moral turpitude by the Employee that
are
materially detrimental to the Company; or
(vi) Alcohol or drug use which impairs the Employee's ability
to
perform his duties hereunder.
(b) Immediately upon the death of the Employee;
(c) Thirty days after the Disability of the Employee. As used in
this
Agreement, the term "Disability" shall mean the inability of the
Employee with
reasonable accommodation as may be required by State or Federal
law, due to a
physical or mental disability, for a period of ninety (90) days,
whether or not
consecutive, during any 360-day period to perform the services
contemplated
under this Agreement. A determination of Disability shall be made
by a physician
satisfactory to both the Employee and the Company, provided that if
the Employee
and the Company do not agree on a physician, the Employee and
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the Company shall each select a physician and these two together
shall select a
third physician, whose determination as to Disability shall be
binding on all
parties;
(d) The Employee may terminate his employment hereunder for
"Good
Reason" if, after thirty (30) days written notice, the Company
fails to cure the
following conduct:
(i) Material breach of any provision of this Agreement by the
Company;
(ii) Failure to maintain the Employee in a position commensurate
with
that referred to in Section 2 of this Agreement; or
(iii) The assignment to the Employee of any duties inconsistent
with
the Employee's position, authority, duties or responsibilities
as
contemplated by Section 2 of this Agreement;
(iv) Relocation of the Employee's main office more than 50 miles
from
Pennington, New Jersey;
(v) Material reduction in the Employee's base salary; or
(vi) A Notice of Nonrenewal from the Company, informing the
employee
of the Company's intent not to renew the Initial Term or any
Renewal
Term.
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(e) At the election of the Employee, without Good Reason, upon
not
less than thirty (30) days prior written notice of termination to
the Company;
(f) At the election of the Company, without Cause, immediately
upon
thirty (30) days prior written notice of termination to the
Employee.
5. Effect of Termination. Upon termination of this Agreement at
any
time, the payments and remedies stated in this Section 5 shall be
exclusive and
Employee shall not be eligible for any further payment or other
benefits from
the Company.
(a) Termination for Cause or at Election of the Employee without
Good
Reason. In the event the Employee's employment is terminated for
Cause pursuant
to Section 4(a), or at the election of the Employee pursuant to
Section 4(e),
the Company shall pay to the Employee the base salary and benefits
due and owing
to him under Section 3 through the last day of the Employee's
actual employment
by the Company.
(b) Termination for Death or Disability. If the Employee's
employment
is terminated by death or because of disability pursuant to Section
4(b) or
4(c), the Company shall pay to the estate of the Employee or to the
Employee, as
the case may be, the base salary and benefits which would otherwise
be payable
to the Employee th
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