EXHIBIT 10.4
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE
EMPLOYMENT AGREEMENT (this “ Agreement ”) is
made as of May 22, 2009 by and between Beacon Enterprise Solutions
Group, Inc., an Indiana corporation (the “ Company
”), and Robert Mohr (“ Executive ”) This
Agreement replaces the Executive Employment Agreement entered into
between the parties on December 20, 2009.
WHEREAS, the
Company desires to employ Executive, and Executive desires to be
employed by the Company, on the terms set forth herein;
NOW
THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1.
Employment . The Company hereby employs Executive, and
Executive hereby accepts employment with the Company, upon the
terms and conditions set forth in this Agreement, for the period
beginning on (date old Agreement ended.) and ending as provided in
Section 4 hereof (the “ Employment Period
”).
Section 2.
Position and Duties . During the Employment Period,
Executive will serve as Chief Accounting Officer of the Company and
render such managerial, analytical, administrative, marketing,
creative and other executive services to the Company and its
Affiliates, as are from time to time necessary in connection with
the management and affairs of the Company and its Affiliates, in
each case subject to the authority of the Board (as defined below)
of the Company to define and limit such executive services,
including serving as an officer, manager, employee or in any other
capacity for any Affiliate of the Company. Executive will devote
his best efforts and all of his business time and attention (except
for permitted vacation periods and reasonable periods of illness or
other incapacity) to the business and affairs of the Company and
its Affiliates. Executive will perform his duties and
responsibilities to the best of his abilities in a diligent,
trustworthy, businesslike and efficient manner. Executive will be
permitted to reside and perform Executive’s duties in
Louisville, Kentucky (other than typical travel that is required in
the performance of such duties).
Section 3.
Salary and Benefits .
(a)
Salary . Executive’s compensation consists of a salary
and bonus as described below and as specifically outlined on
Exhibit A to this Agreement. The Company will pay Executive salary
at a rate equal to the amount reflected on Exhibit A (the
“Salary”). Said amount may be adjusted from time to
time. The Salary will be payable in regular installments in
accordance with the general payroll practices of the Company.
Executive will also be eligible for an annual salary review by the
Company and the Salary may be adjusted by the Company based on the
achievement of performance goals.
(b)
Bonuses . During the Employment Period, the Company will
establish cash and equity incentive bonus programs representing
potential additional incentive
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compensation for Executive.
Specifically, you will be eligible to be considered for a
performance based bonus as set forth on Exhibit A of this
Agreement. The bonus program shall be administered and distributed
under the sole direction of the Compensation Committee of the
Board, taking into account the recommendations of senior management
of the Company and the achievement of annual goals and objectives
as established and approved by the Board. If the Employment Period
during any fiscal year is less than the full fiscal year, the bonus
amount paid to Executive, if any, attributable to any fiscal year
shall be prorated for the actual number of days of the Employment
Period that elapse during such fiscal year.
(c)
Benefits . During the Employment Period, the Company will
provide Executive with family health, dental and major medical,
vision and disability coverage, as well as participation under such
plans as the Board may establish or maintain from time to time for
executive officers of the Company (collectively, the “
Benefits ”). Executive will be entitled to such paid
vacation per annum as the Company shall establish as Company policy
for all management of the Company.
(d)
Reimbursement of Expenses . During the Employment Period,
the Company will reimburse Executive for all reasonable
out-of-pocket expenses incurred by him during the Employment Period
in the course of performing his duties under this Agreement which
are consistent with the Company’s policies in effect from
time to time with respect to travel, entertainment and other
business expenses, subject to the Company’s requirements with
respect to reporting and documentation of such expenses.
Specifically, you will be reimbursed for up to $1,500 of annual
membership dues to licensing and trade organizations of your
designation.
Section 4.
Termination .
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(a)
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The Employment
Period will continue until the earlier of:
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(i)
Executive’s resignation
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(A) for Good
Reason on 30 days’ written notice,
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(B) for any
other reason or no reason (a resignation described in
this clause (i)(B) being a resignation by the Executive
“ Without
Good Reason ”) or
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(C) as a
result of Executive’s death or Disability, which
resignation
shall be deemed automatically tendered upon Executive’s
death or
Disability; or
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(ii) the giving
of notice of termination by the Company
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(A)
for Cause or
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(B) for any
other reason or for no reason (a termination described
in this clause (ii)(B) being a termination by the Company
“ Without
Cause”)
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For
purposes of this Agreement, “Cause” means
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(i)
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any willful or
intentional act of Executive that has the effect of injuring the
reputation or business of the Company or its Affiliates in any
material respect,
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(ii)
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Executive’s use of illegal
drugs,
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(iii)
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that the
Executive has materially failed to perform his duties hereunder and
such failure continues uncured for 30 days after notice to
Executive by the Company; provided, the foregoing notice shall only
be required with respect to one material breach that occurs in any
12-month period, or
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(iv)
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Executive’s indictment, conviction or a
plea of guilty or no contest or similar plea with respect to, a
felony, an act of fraud or embezzlement, a breach of fiduciary duty
to the Company or any of its Subsidiaries, or a (v) breach of any
of Sections 6, 7 or 8 of this Agreement.
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For
the purposes of this Agreement, “Good Reason”
means
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(i)
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any substantial
diminution in the Executive’s professional
responsibilities,
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(ii)
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any intentional
act which creates a workplace environmental that, by duress or
otherwise, makes it impossible for Executive to continue his
employment,
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(iii)
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a reduction in
Salary or the overall level of other compensation and benefits to
which Executive is entitled under this Agreement, or
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(iv)
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the failure by
the Company to pay the Executive any portion of the
Executive’s current compensation when due and such failure
continues for 7 days after notice to Company from Executive
provided that the foregoing notice shall only be required with
respect to one such failure in any 12-month period. For avoidance
of doubt, Executive hereby acknowledges that the Board may from
time to time reorganize the operations of the Company resulting in
a change in Executive’s title or direct employer, which
change alone shall not constitute Good Reason so long as any change
in title or reporting responsibilities results in no substantial
diminution in Executive’s responsibilities and any new direct
employer agrees to be bound by the terms and conditions of this
Agreement, without modification other than to reflect the change in
title and employer.
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(b)
In the event the Employment Period is terminated by the Company
Without Cause or the Executive resigns for Good Reason, then, so
long as Executive continues to comply with Sections 6, 7 and 8
hereof, and so long as Executive executes and delivers to the
Company immediately prior to the payment of such first installment
a release in the form of
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Exhibit B, then Executive will be
entitled to receive an amount (the “ Severance Amount
”) equal to twelve (12) months pay at the rate of
Executive’s Salary in effect at the Termination Date and
payable in accordance with the Company’s regular payment
schedule in effect at the Termination Date. In addition, in
connection with termination described in the preceding sentence,
Executive shall be entitled to receive
(i)
any incentive payments earned and accrued but not yet paid to
Executive prior to the Termination Date,
(ii)
continued medical coverage during the Severance Term pursuant to
COBRA at the Company’s expense; and
(iii)
all accrued and unpaid Salary and unused vacation time through the
Termination Date and all unreimbursed business expenses incurred
through the Termination Date; provided, as a condition to receiving
the Severance Amount or any payment or benefit described in
paragraphs 4(b)(i) and 4(b)(ii).
(c)
In the event the Employment Period is terminated due to the
Executive’s death, or resignation Without Good Reason or by
the Company with Cause then, so long as Executive continues to
comply with Sections 6, 7 and 8 hereof, Executive will be entitled
to receive the items described in paragraphs 4(b)(i) and 4(b)(iii)
above.
(d)
In the event the Employment Period is terminated by the Executive
or the Company due to the Executive’s Disability, then the
Executive shall receive his monthly Salary and benefits through the
end of the calendar month is which such termination occurs and, so
long as Executive continues to comply with Sections 6, 7 and 8
hereof, Executive will be entitled to receive the items described
in Sections 4(b)(i),(ii) and (iii) above.
Section 5.
Resignation as Officer or Director . Upon the Termination
Date, Executive will be deemed to have resigned from each position
(if any) that he then holds as an officer or director of the
Company and each of its Affiliates, and Executive will take any and
all reasonable action that the Company may request in order to
confirm or evidence such resignation.
Section 6.
Confidential Information . Executive acknowledges that the
information, observations and data that may be obtained by
Executive during his employment relationship with, or through his
involvement as a consultant, contractor, representative, agent,
officer, director, partner, member or stockholder of, the Company,
any of its Subsidiaries or Affiliates thereof (each of the Company,
any of its Subsidiaries or Affiliates being a “ Related
Company ” and, collectively, the “ Related
Companies ”), prior to and after the date of this
Agreement concerning the business or affairs of the Related
Companies (collectively, “ Confidential Information
”) are and will be the property of the Related Companies
(“Company Property”). Therefore, Executive agrees that
he will not disclose to any unauthorized Person or use for the
account of himself or any other Person any Company Property or
Confidential Information without the prior written consent of the
Company (by the action of the Board), unless and to the extent that
such Company Property or Confidential Information has become
generally known to and available for use by the public other than
as a result of Executive’s
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improper acts or omissions to
act, or is required to be disclosed by law. Executive will deliver
or cause to be delivered to the Company at, or within two days of,
the Termination Date, or at any other time the Company may request,
all memoranda, notes, plans, records, reports, computer tapes and
software and other documents and data (and copies thereof)
containing or relating to Company Property or Co
