Exhibit 10.9
Execution
Copy
SEPARATION AGREEMENT AND
RELEASE
This SEPARATION AGREEMENT AND
RELEASE (this “ Agreement ”) is made and
entered into as of the 30th day of April, 2009, by and between
Broadwind Energy, Inc. (the “ Company ”)
and Matthew Gadow (the “ Executive
”).
WHEREAS , the Executive and the Company desire to fully
and amicably settle all issues between them, including, but not
limited to, any issues arising out of Executive’s employment
with the Company as Chief Financial Officer pursuant to that
amended and restated employment agreement by and between the
Company and Executive dated November 12, 2008 (the “
Employment Agreement”) and the end of that employment
and the termination of the Employment Agreement;
NOW, THEREFORE
, for and in consideration of the
mutual promises contained herein, and for other good and sufficient
consideration, receipt of which is hereby acknowledged, the
Executive and the Company (sometimes hereafter referred to as the
“ Parties ”), intending to be legally bound,
agree as follows:
Section 1.
Separation and Termination of
Employment Agreement . Except as otherwise
specifically set forth herein, the Employment Agreement and
Executive’s employment with the Company shall end effective
as of the close of business on the April 30, 2009 (the
“ Separation
Date ”). The parties
acknowledge that Executive has resigned from employment and any and
all officerships, directorships, committee memberships and all
other elected or appointed positions, of any nature, that Executive
held immediately prior to the Separation Date with the Company
and/or any of its affiliates, all effective as of the close of
business on the Separation Date and that the Company has fully
accepted such resignation.
Section 2.
Benefits . In consideration for
the promises made in this Agreement, the Parties agree to the
following (the “ Severance Benefits ”):
(a)
Final
Pay . No later than the
Company’s regular pay date following the Separation Date the
Company shall pay Executive (i) all accrued and unpaid base
salary as of the Separation Date; and (ii) accrued but unused
vacation pay (stipulated by the parties to be equal to one hundred
and four (104) hours).
(b)
Severance
Payments . The Company agrees to
pay to Executive an aggregate gross amount of two hundred
twenty-five thousand dollars ($225,000), which shall be paid in
substantially equal monthly installments (or more frequently, based
upon the Company’s standard payroll practices) during the
nine (9) month period beginning on the Separation Date.
Executive shall not be obligated to seek other employment or take
any other action by way of mitigation or offset of the amounts of
payments to Executive under any provisions of this Agreement, and
the Executive shall not be required to pay or credit the Company
any amounts the Executive may receive from such alternative
employment or related income.
(c)
Expenses
. The
Executive shall submit any expense reports to the Company no later
than ten (10) days following the Separation Date, and shall
be
reimbursed in
accordance with applicable Company policies and procedures for
authorized expenses incurred through the Separation
Date.
(d)
COBRA
Continuation . The Company shall pay
on behalf of Executive the required premiums for up to twelve (12)
months of continuing coverage under the Company’s existing
health programs pursuant to the health care continuation
rules of the Consolidated Omnibus Budget Reconciliation Act of
1985 (“COBRA”), provided that Executive remains
eligible for and elects to receive such COBRA continuation for such
period following the Separation Date. Any period of
continuation coverage hereunder shall be credited against
Executive’s continuation coverage rights under COBRA.
If Executive continues, to the extent permitted by law, to avail
himself of continuation coverage under COBRA following the
expiration of the twelve (12) month period referred to in
this Section 2(d)
, Executive
shall bear the full cost of any such continuation coverage.
The Company’s obligation to reimburse Executive under
this Section 2(d) is conditioned on
Executive’s timely and correct completion of any and all
COBRA election forms as may be required by the Company or its
third-party insurer.
(e)
Outplacement
. Executive
shall be provided with outplacement services through the Executive
(12 Month) Program with Challenger, Gray &
Christmas, Inc. (the “ Program ”). These
services shall be paid for in full by the Company, shall be
available to Executive immediately following the Separation Date
and begin when Executive officially starts the Program.
(f)
Stock
Options . Executive’s
eighty thousand (80,000) vested and outstanding stock options,
awarded pursuant to the Stock Option Agreement dated October 22,
2007 under the Company’s
2007 Equity Incentive Plan (the “ 2007 EIP ”) shall remain
exercisable through January 31, 2010 at which time they shall
expire if unexercised. All unvested stock options held by
Executive as of the Separation Date shall be forfeited as of the
Separation Date. Executive acknowledges and agrees that he is
not entitled to receive any additional equity awards of any type
from the Company, under the 2007 EIP or otherwise. The
Parties acknowledge and agree that the Company makes no assurance
that any portion of the foregoing option award shall retain its
status as an incentive stock option under Section 422 of the
Internal Revenue Code of 1986, as amended (the “
Code ”).
(g)
Executive
Acknowledgement . The Executive
acknowledges that, subject to fulfillment of all obligations
provided for herein, Executive has been fully compensated by the
Company under the Company’s policies, practices, and rules,
and any applicable law, and that nothing is owed to Executive with
respect to salaries, benefits or any other form of compensation
whether pursuant to the Employment Agreement or otherwise.
The Executive further acknowledges and agrees that the Severance
Benefits referred to in this , Section 2 are consideration for the
Executive’s promises contained in this Agreement, and that
the Benefits are above and beyond any wages, salary, severance, or
other sums to which the Executive is entitled from the Company
absent executing this Agreement.
2
(h)
Executive
acknowledges and agrees that all payments made, and the benefits
provided, pursuant to this Agreement shall be subject to all
applicable tax withholding and reporting requirements.
Section 3.
Termination of
Benefits . Except as provided
in Section 2
above,
Executive’s participation in all employee benefit (pension
and welfare) and compensation plans will cease as of the
Separation Date. Nothing contained herein shall limit or
otherwise impair Executive’s right to receive pension or
similar benefit payments which are vested as of the Separation
Date under
any applicable tax qualified pension or other tax qualified or
non-qualified benefit plans, pursuant to the terms and conditions
of the applicable plan.
Section 4.
Mutual Release
.
(a)
For valuable
consideration, the adequacy of which is hereby acknowledged,
Executive on behalf of himself and the other Executive Releasors
(as defined below) releases and forever discharges the Company and
the other Company Releasees (as defined below) from any and all
Claims (as defined below) which Executive now has or claims, or
might hereafter have or claim, whether known or unknown, suspected
or unsuspected (or the other Executive Releasors may have, to the
extent that it is derived from a Claim which Executive may have),
against the Company Releasees based upon or arising out of any
matter or thing whatsoever, from the beginning of time to the
Separation Date and shall include, without limitation, Claims
arising out of or related to Executive’s employment with the
Company and the end thereof, the Employment Agreement and the
termination thereof and Claims arising under (or alleged to have
arisen under) (i) The Age Discrimination in Employment Act of
1967, as amended; (ii) Title VII of the Civil Rights Act of
1964, as amended; (iii) The Civil Rights Act of 1991;
(iv) Section 1981 through 1988 of Title 42 of the United
States Code, as amended; (v) the Employee Retirement Income
Security Act of 1974, as amended; (vi) the Immigration Reform
and Control Act of 1986, as amended; (vii) the Americans with
Disabilities Act of 1990, as amended; (viii) the National
Labor Relations Act, as amended; (ix) the Occupational Safety
and Health Act of 1970, as amended; (x) any state or local
anti-discrimination law; (xi) any other local, state or
federal law, regulation or ordinance; (xii) any public policy,
contract, tort, or common law; or (xiii) any allegation for
costs, fees, or other expenses including attorneys’ fees
incurred in these matters. Executive further releases any
rights to recover damages or other personal relief based on any
claim or cause of action filed on Executive’s behalf in court
or any agency. Notwithstanding the above, Executive Releasors
do not release any claim (i) duly filed pursuant to the group
welfare and retirement plans of the Company, (ii) duly filed
pursuant to any policy of liability insurance or the
Company’s by-laws and (iii) duly filed with the Equal
Employment Opportunity Commission or Illinois Department of Human
Rights (or participation in any such claim); provided,
however , with respect to this subpart (iii), Executive
Releasors acknowledge that, because they are waiving all claims for
monetary damages and any other form of personal relief in this
Agreement, Executive Releasors may only seek and
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