Exhibit 10.147
March 27, 2007
Mr. Robert
Kot
299 Delevan
Road
Delanson, NY
12053
Re: VP & GM Position for
MTII
Dear
Bob:
This letter will memorialize our agreement with respect to the
terms of your employment with MTI Instruments ("MTII"). Your
position will be the Vice President ("VP") and General Manager
("GM") for MTII. As VP and GM, you will be responsible for MTII's
business including but not limited to profit and loss, product and
business strategy as well as the manufacturing and operations. The
terms of your employment are set forth below:
Base Salary . Your base salary will be at the rate of
$14,583.34 per month, less all applicable taxes and withholdings
(which if annualized equals $175,000). Such base salary may be
adjusted from time to time in accordance with normal business
practices and in the sole discretion of MTII. In the first pay
period following the execution of this letter agreement (the
"Execution Date"), MTII will pay to you a "catch-up" payment equal
to the additional amount you would have received from MTII between
December 6, 2006 and the Execution Date had your annualized salary
been $175,000 per year.
Stock Options . MTII will ask the Compensation Committee of
MTI to grant you options for 75,000 shares of MTI common stock on
the following terms, subject in all respects to the MTI option plan
and an option agreement. The options will have an exercise price
equal to the fair market value on their date of grant and will have
an expiration date of 7 years, absent earlier termination in
accordance with their terms. Options for 25,000 shares will be
exercisable when granted, and, assuming your continued employment,
options for 50,000 shares will become vested as to an additional
12,500 shares on the first anniversary of the date of grant and
will become vested as to an additional 3,125 shares on each
quarterly anniversary of the date of grant following the first
anniversary (i.e., starting in June 2008), assuming that
Compensation Committee of the MTI Board determines that MTII
exceeded its 2007 annual revenue and profits goals by at least 10%,
with the initial and quarterly vesting numbers reduced from 12,500
to 8,750 and 3,125 to 2,187.5, respectively, if the revenue and
profit results are between target and a 10% excess, and the number
reduced to 0 if the 2007 revenue and profit goals are not
met.
The Compensation Committee of MTI may grant you options at their
discretion in the future.
Bonus . You will be eligible to receive an annual bonus of
$30,000 per calendar year if the Compensation Committee determines
in its sole discretion, after the annual audit is completed, that
MTII has achieved its annual revenue and profit goals, with the
amount increased to $40,000 if those goals were exceeded by at
least 10%. You must be an active employee of MTII on the date any
bonus is distributed in order to be eligible for and to earn any
bonus. Nothing in this section is intended to prevent the
Compensation Committee of MTI from granting you a discretionary
bonus.
Other Benefits . You may participate in any and all benefit
programs that MTII makes available to employees and officers of
MTII from time to time, including MTII's 401(k) plan and health
insurance plan. Benefits are subject to change at any time in
MTII's sole discretion. You will be eligible for 23 days of paid
time off ("PTO") annually. The number of PTO days for which you are
eligible shall accrue in accordance with the MTII regular PTO
benefits procedures.
At-Will Employment . This letter shall not be construed as
an agreement, either express or implied, to employ you for any
stated term, and shall in no way alter MTII's policy of employment
at-will, under which both MTII and you remain free to end the
employment relationship for any reason, at any time, with or
without notice. Similarly, nothing in this letter shall be
construed as an agreement, either express or implied, to pay you
any compensation or grant you any benefit beyond the end of your
employment with MTII, except as otherwise provided
herein.
Termination of Employment by MTII Without Cause . If MTII
terminates your employment without "cause" (as defined below), MTII
shall, for four months following your date of termination: (i)
continue to pay to you your base salary, in accordance with MTII's
regularly established payroll procedure; and (ii) provided you
elect to continue receiving group medical insurance pursuant to the
federal "COBRA" law, 29 U.S.C. Sec. 1161 et. seq. , continue
to pay the share of the premium for health coverage that is paid by
MTII for active and similarly situated employees who receive the
same type of coverage. As a condition to your receipt of these
severance benefits, you must execute and not revoke a severance
agreement and release drafted by and satisfactory to MTII. For
purposes of this agreement, "cause" shall mean (i) a finding by the
Board of Directors that you have engaged in gross misconduct,
negligence, theft, dishonesty, fraud, or gross dereliction of
duties; or (ii) your indictment on any felony charge or a
misdemeanor charge involving theft, moral turpitude or a violation
of the federal securities laws (whether or not related to your
conduct at work).
Proprietary
Information, Developments, Non-Competition and Non-Solicitation
Agreement : During the course of your
employment you will be exposed to, and be responsible for
developing, trade secrets and confidential information of the
Company. Therefore, as a condition of your employment, you are
required to execute the Proprietary Information, Developments,
Non-Competition and Non-Solicitation Agreement (the
"Non-Competition/Proprietary Information Agreement"), which is
incorporated by reference in its entirety, and is enclosed for your
signature.
Representations
. You represent
that you are not bound by any employment contract, restrictive
covenant or other restriction preventing you from entering into or
continuing employment with or carrying out your responsibilities
for MTII, or that is in any way inconsistent with the terms of this
letter agreement.
Amendments . Any amendment to this letter agreement shall be
made in writing and signed by the parties hereto.
Applicable Law . This letter agreement shall be governed by
and construed in accordance with the laws of the State of New York
(without reference to the conflict of laws provisions thereof). Any
action, suit or other legal proceeding arising under or relating to
any provision of this Agreement shall be commenced only in a court
of the State of New York (or, if appropriate, a federal court
located within the State of New York), and MTII and you each
consents to the jurisdiction of such a court. MTII and you each
hereby irrevocably waives any right to a trial by jury in any
action, suit or other legal proceeding arising under or relating to
any provision of this letter agreement.
You agree to devote your full business time, energy, loyalty,
efforts and attention to the business and affairs of
MTII.
The provisions
of any other agreement (other than any offer letter) between you
and MTII or any of its affiliates, including, but not limited to,
any non-competition agreement, shall continue to be effective in
accordance with the terms of any such agreement.
If the
foregoing is acceptable to you, please countersign this letter in
the space provided below and return it to me.
Sincerely,
/S/ Peng K. Lim
Peng K. Lim
CEO
Agreed &
Accepted:
/S/ Robert
Kot
Bob
Kot
Date:
3/27/2007
PROPRIETARY INFORMATION,
DEVELOPMENTS,
NON-COMPETITION AND
NON-SOLICITATION AGREEMENT
This Proprietary Information, Developments, Non-Competition and
Non-Solicitation Agreement is made by and between MTI Instruments
Inc. (hereinafter referred to as the "Company"), and Robert Kot
(the "Employee").
IN CONSIDERATION of the employment of the Employee by the Company,
the Employee and the Company agree as follows:
1.
Condition of Employment .
The Employee acknowledges that his/her employment with the Company
is contingent upon his/her agreement to sign and adhere to the
provisions of this Proprietary Information, Developments,
Non-Competition and Non-Solicitation Agreement
("Agreement").
2.
Proprietary and Confidential Information .
(a)
The Employee agrees that all information, whether or not in
writing, of a private, secret or confidential nature concerning the
business, business relationships or financial affairs of the
Company and that of Mechanical Technology Inc. and MTI MicroFuel
Cells Inc. ("Affiliates") (collectively, "Proprietary Information")
is and shall be the exclusive property of the Company and/or its
Affiliates. By way of illustration, but not limitation, Proprietary
Information may include discoveries, inventions, products, product
improvements, product enhancements, business and technical
processes, methods, techniques, machines, formulas, compositions,
manufactures, compounds, negotiation strategies and positions,
projects, developments, plans (including business, financial and
marketing plans and reports), research data, clinical data,
financial data (including sales costs, profits, pricing methods,
and accounting methods), personnel data, computer programs
(including software used pursuant to a license agreement), customer
and supplier lists, and contacts at or knowledge of customers or
prospective customers of the Company or its Affiliates. The
Employee will not disclose any Proprietary Information to any
person or entity other than employees of the Company or use the
same for any purposes (other than in the performance of his/her
duties as an employee of the Company) without written approval by
an officer of the Company, ei
