EXHIBIT
10.5
Executive
Employment Agreement
This Executive
Employment Agreement (“Agreement”) is made as of the
_____ day of ___________, 2009 between Juhl Wind, Inc (the
“Company”) and John Brand
(“Employee”).
WITNESSETH:
WHEREAS, the
Company is in the business of developing, managing and selling wind
power projects (the “Business”);
WHEREAS,
Employee is currently the Chief Financial Officer
(“CFO”) of the Company and desires to continue in that
role for the terms hereof to govern his activities with the
Company;
WHEREAS,
Company desires to employ Employee as CFO of the Company and define
the terms and nature of their relationship, and Employee desires to
be employed by the Company upon the terms and conditions stated
herein;
WHEREAS, the
Company wishes to protect its Confidential Information (as defined
herein) and to restrict certain future solicitation and competition
by Employee;
WHEREAS,
Employee's execution of this Agreement is a requirement of
Employee's employment with the Company; and
WHEREAS, this Agreement will apply to the
Company and to Juhl Wind Inc. and any successor
companies;
WHEREAS, the
parties hereto agree that this Agreement shall supersede any other
agreements regarding Employee’s provision of services to the
Company.
NOW, THEREFORE, in consideration of the premises, in further
consideration of Employee’s employment by Company, and for
other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, Company and Employee hereby agree as
follows:
1. Incorporation
of Recitals.
The above
recitals are, and shall be construed to be, an integral part of
this Agreement. The parties hereto acknowledge and agree
that this Agreement formalizes in writing certain understandings
and procedures which shall be in effect during the Term of
Employee’s employment with the Company.
The term of
this Agreement shall be for a period of approximately two (2) years
and four (4) months commencing on the date shown above and
continuing through December 31, 2011
(“Term”).
A. Employee’s
commencement of employment with the Company shall be conditioned
upon and subject to the satisfactory completion of a background
check and a drug screening test if elected by the Company, the
expense of which shall be borne by the Company.
B. The
Company agrees that during the Term of this Agreement, the Company
shall employ Employee as CFO to perform the services identified on
Exhibit A and such other duties which are of the type and nature
normally assigned to such employees of a business of the size,
stature, and nature of the Company, as the Board of Directors of
the Company may from time to time assign.
C. Employee
hereby accepts such employment and agrees that during the Term of
this Agreement that:
(i) Employee
will perform such duties in the foregoing capacity, and agrees that
fiduciary duties normally applicable to officers, including,
without limitation, those of loyalty and due care, shall be
applicable to Employee;
(ii) Employee
will devote his working time and attention, as well as his best
efforts and abilities to the performance of his duties hereunder
and to the affairs of the Company. Employee agrees that
any board or committee positions in any other business or
organization must not conflict or interfere with Employee’s
role on behalf of the Company;
(iii) Employee
will not engage in any other activities which conflict, interfere
with or otherwise adversely affect in any way the proper discharge
of his duties hereunder and compliance with the covenants of
Employee contained herein;
(iv) Employee
will not enter into contracts or commitments on behalf of the
Company without the prior written authorization of the Board of
Directors or by Company policy established for such purpose, and
Employee acknowledges and agrees that he shall not have any
authority to do so without such prior consent; and
(v) Employee
will comply with all lawful policies which from time to time may be
in effect at the Company or adopted by the Company and conveyed to
Employee.
As compensation
for the services to be performed by Employee hereunder, the Company
agrees to pay to Employee, and Employee agrees to accept, the
following:
A. Salary. The
Company will pay the CFO a monthly salary of Ten Thousand Four
Hundred Seventeen Dollars ($10,417) to be paid on the first day of
each month in advance as salary for that month, pro-rated for any
partial months; provided however, that such salary shall increase
to the monthly rate of Twelve Thousand Five Hundred Dollars
($12,500) upon the earlier of the closing of a $100 million equity
fund for wind projects or the Company’s construction of a
second wind project.
B. Performance
Bonus. The Company will pay the CFO an annual
performance bonus pursuant to the terms of certain goals as
established by senior management and approved by the Board of
Directors. The CFO’s Performance Bonus may equal a
maximum of 100% of his annual salary then in effect.
C. Warrants/Options. The
parties acknowledge that the Employee is in receipt of a stock
option grant dated January 26, 2009 for 100,000 shares of common
stock of the Company, with such exercise price being the closing
price on the date of grant. In recognition of extraordinary efforts
provided during Employee’s services since inception of
employment in January 2009, the CFO will be granted an additional
stock option as of the date hereof to purchase up to 150,000 shares
of common stock of the Company at an exercise price equivalent to
the closing per share price of common stock of the Company on
August 13, 2009.
D. Employee
Benefits. In addition to Employee’s
compensation, the Company shall make available to such Employee,
subject to change at any time by senior management and approved by
the Board of Directors, during the Term hereof:
(i) Participation
in any plans, to the extent such plans are available to all
similarly situated employees (unless restricted due to
Employee’s income level), which are from time to time offered
to the Company’s employees with respect to group health,
life, accident and disability insurance or payment plans,
retirement plans, profit sharing or similar employee benefits, if
any, and subject to the satisfaction of insurance underwriting
requirements; provided, however, that the Company may elect to
provide cash compensation to cover individually purchased benefits
in lieu of establishing corporate plans;
(ii) Twenty
days of paid annual vacation, accrued based upon time employed
(i.e. accrued at a rate of 1⅔ days per month), as well as 10
days of personal time, plus paid holidays designated as such by the
Company;
(iii) Automobile
allowance in the amount of $750 per month;
(iv) The
Company shall reimburse Employee for all reasonable and necessary
business expenses incurred by Employee in connection with
Employee’s performance of services hereunder as soon as
practicable in accordance with the Company’s reimbursement
policy following submission to the Company by Employee of a written
itemized account of such expenditures, together with receipts
therefore, all in accordance with the Company’s policy and
with applicable law, rules and regulations governing deductibility
of such amounts under the Internal Revenue Code of 1986, as
amended; and
(v) Other
fringe benefits regularly provided to the similarly situated
employees of the Company.
A. Termination
by the Company with Cause. The Company may terminate
Employee’s employment with “Cause” as hereafter
defined in this section upon written notice. “Cause”
shall mean Employee’s: (i) conviction of, or
indictment for, criminal negligence or criminal acts in the work
place or conviction of a felony, (ii) violation of the
Company’s material policies or procedures that have been made
known to Employee, or violation by Employee on Company premises of
any law or material regulation, (iii) material breach or violation
of this Agreement, (iv) commission of any act of theft, fraud,
dishonesty, or falsification of any employment or Company records,
(v) appropriation of a business opportunity or transaction in
contravention of Employee’s duties to the Company, (vi) any
improper action by Employee which has a detrimental effect on the
Company’s reputation or business, (vii) failure to perform
the duties assigned or requested by the Board of Directors, or
(viii) gross negligence, incompetence or willful misconduct by
Employee in the performance of Employee’s
duties. In the event that Employee is terminated with
“Cause,” Employee shall only be entitled to the payment
of Employee’s then-current accrued, unpaid Compensation and
accrued unused vacation, each prorated through the date of
termination. In the case of an event of Cause under
clauses (ii), (iii), (vi) or (vii), with the exception of any such
events of Cause arising from breach of any of the provisions of
Sections (i), (iv), (v) or (viii) hereof, Employee shall be
provided the opportunity to cure such event within a reasonable
time following written notice thereof and not to exceed thirty (30)
days following such notice (the “Cure Period”), and if
the Employee desires to effect a cure to same then Employee shall
provide the Company with written notice within five business days
following receipt of notice of Cause of such desire, and in the
absence of such cure by Employee within the Cure Period Employee
shall be deemed terminated upon the expiration of the Cure Period
unless otherwise mutually agreed in writing. However,
notwithstanding the foregoing, Employee shall not be provided the
opportunity pursuant to the foregoing sentence to cure
Employee’s repeated or persistent actions, failures or
omissions occurring within a three month period which constitute
Cause (in the absence of cure) hereunder and which would otherwise
be curable but for such reoccurrence.
B. Termination
by Employee for Good Reason. Employee may terminate his
employment hereunder for Good Reason. “Good
Reason” shall mean (i) a material diminution of
Employee’s employment duties without Employee’s
consent, which consent shall not be unreasonably withheld; (ii) a
material and persistent breach by the Company of Section 4 hereof;
or (iii) the corporate headquarters of the Company is relocated
outside the geographic region of Minneapolis-Saint Paul,
Minnesota. Employee shall provide the Company thirty
(30) days prior written notice of his intention to resign for Good
Reason which states his intention to resign and sets forth the
reasons therefor, and any resignation without delivery of such
notice shall be considered to be a resignation for other than Good
Reason. In the event that Employee terminates his
employment pursuant to this section, Employee shall be entitled to
(i) payment of Employee’s then-current accrued, unpaid
Compensation and accrued, unused vacation, each prorated through
the date of termination, and (ii) an amount in respect of
individual severance pay equivalent to 90 days of the then current
full year compensation. During the thirty (30) day
period following the delivery of such notice, Employee shall
reasonably cooperate with the Company in locating and training
Employee’s successor and arranging for an orderly
transference of his responsibilities.
C. Termination
Due to Employee’s Death or Disability. In the
event that this Agreement and Employee’s employment is
terminated due to Employee’s death or disability, Employee
(or Employee’s legal representatives) shall be paid
Employee’s then-current unpaid compensation and accrued,
unused vacation, each prorated through the date of
termination. For purposes of this Agreement, the term
“disability” shall mean the mental or physical
inability to perform satisfactorily the essential functions of
Employee’s full-time duties, with or without a reasonable
accommodation, as determined by a physician mutually agreed by the
Company and Employee, such agreement not to be unreasonably
withheld; provided, however, that any disability which continues
(subject to any requirements of applicable law) for one hundred and
twenty (120) days (whether or not consecutive) in any twenty-four
(24) month period shall be deemed a total and permanent
disability.
6. Representations,
Warranties and Certain Covenants of Employee.
Employee hereby represents, warrants and
covenants to the Company that:
A. Employee
is not subject to any agreement, including any confidentiality,
non-solicitation, non competition, or invention assignment,
agreement or other restrictive covenant, whether oral or written,
which would in any way restrict or prohibit Employee’s
ability to execute this Agreement, perform Employee’s
obligations under this Agreement or otherwise comply with the terms
of this Agreement;
B. Employee
has respected and at all times in the future will continue to
respect the rights of Employee’s previous employer(s) in
trade secret and confidential information in accordance with
applicable agreements, if any, and applicable law;
C. Employee
has left with Employee’s previous employers all proprietary
documents, computer software programs, computer discs, customer
lists, and any other material which is proprietary to
Employee’s previous employer(s), has not taken copies of any
such materials and will not remove or cause to be removed any such
material or copies of any such material from such previous
employer(s) in violation of Employee’s agreements, if any,
with previous employers;
D. Employee
has not done, and hereafter will not do anything, by contract or
otherwise, which would impair the rights of the Company in and to
any Company Developments (as defined below), the Company Materials
(as defined below), or the ability of Employee to perform
Employee's obligations under this Agreement;
E. Employee
shall not, during the term of his employment with the Company, do
anything or authorize any other person or entity to do anything
contrary to the material rights and interests of the Company in
contravention of Employee’s obligations under this
Agreement;
F. The
information Employee supplied to the Company in connection with
Employee’s employment is true, correct, and complete;
and
G. So
long as Employee remains employed by the Company, any and all
business opportunities from whatever source which Employee may
receive or otherwise become aware of in connection with his
employment with the Company relating to the Business of the Company
shall belong to the Company, and unless the Company specifically,
after full disclosure by Employee of each and any such
opportun
