Exhibit 10.31
Employment Transition and
Release of Claims Agreement
This Employment
Transition and Release of Claims Agreement (the “
Agreement ”) is made as of this 29
th
day of April, 2009,
by and between American Superconductor Corporation, a Delaware
corporation (the “ Company ”), and Alexis P.
Malozemoff (the “ Executive ”).
WHEREAS , the Executive has served the Company for many
years and is currently an Executive Vice President and the Chief
Technical Officer for the Company;
WHEREAS , the Executive has indicated to the Company his
desire to retire effective May 22, 2009;
WHEREAS , the Company wishes to continue to employ the
Executive during a transition period following the
Executive’s retirement upon the terms and conditions set
forth herein; and
WHEREAS , the Executive is willing to provide services
to the Company upon the terms and conditions set forth
herein.
NOW, THEREFORE
, in consideration of the foregoing
and the mutual covenants and promises contained herein, the
sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Employment Transition
Arrangement .
(a) Term and Renewal . The
term of this Agreement shall commence effective May 22, 2009
(the “ Effective Date ”) and shall continue
through the first anniversary of the Effective Date on the terms
and conditions set forth below, unless sooner terminated in
accordance with Section 3 (the “ Original Term
”). Following the expiration of the Original Term, the term
of this Agreement may be extended at the option of the Company for
two (2) additional one-year periods (each, an “
Extended Term ”) provided that the Company notifies
the Executive in writing of its decision to extend the term not
less than thirty (30) days prior to the expiration of the
Original Term or the first Extended Term, as the case may be. The
Original Term and any Extended Term shall hereinafter be
collectively referred to as the “ Transition Term
.”
(b) Position and
Responsibilities . During the Transition Term, the Executive
agrees to remain employed on a part-time basis by the Company as
Advisor to the Senior Vice President and General Manager of AMSC
Superconductors (“ SVP and GM, AMSC Superconductors
”). The Executive shall report to, and have such duties and
authority as shall be determined from time to time by, the SVP and
GM, AMSC Superconductors. During the Original Term and/or any
Extended Term, as the case may be, the Executive shall be available
to the Company (upon reasonable advance notice) to devote up to
four hundred (400) hours to the performance of the
Executive’s duties hereunder. During the Transition Term, the
Executive agrees that he shall use his best efforts and judgment in
performing his duties as required hereunder. The Executive further
agrees that he shall not, during his employment, unless otherwise
agreed to in writing by the Company, (i) seek or accept other
employment, or any engagement as a consultant or
independent contractor, in the high temperature
superconductor field, (ii) become self-employed in the high
temperature superconductor field, or (iii) engage in any
activities which are detrimental to or in conflict with the
business of the Company.
(c) Compensation . During the
Transition Term, the Executive shall be paid One Hundred
Twenty-Five Dollars ($125.00) per hour for each hour of service
provided to the Company. The compensation may be reviewed and
adjusted from time to time in the sole discretion of the Company,
but shall not be reduced. All payments of compensation to the
Executive will be subject to all applicable taxes and withholdings
and will be paid in accordance with the Company’s regular
payroll practices for hourly employees.
(d) Benefits . During the
Transition Term and for so long as Executive remains employed by
the Company, the Executive shall continue to receive health
insurance coverage to the same extent that the Executive received
as a full-time employee immediately prior to the Effective Date.
Except with respect to such health insurance coverage, the
Executive shall be eligible only for those benefits that the
Company makes available to similarly situated part-time employees,
subject to and in accordance with the terms of any applicable plans
or policies. The Executive acknowledges and agrees that he shall
have no rights to participate in any of the Company’s benefit
plans, including, but not limited to health insurance coverage,
following the Date of Termination as defined in Section 3
below, except to the extent he may have rights under the law known
as COBRA.
(e) Expenses . The Executive
is authorized to incur reasonable business expenses in carrying out
his duties and responsibilities under this Agreement, including but
not limited to, travel expenses. The Company shall reimburse the
Executive for all such expenses upon presentation by the Executive,
from time to time, of accounts of such expenditures, provided that
such expenses are appropriately itemized and had been approved
consistent with the Company’s policy.
(f) Outstanding Options and
Restricted Stock Awards . The Executive acknowledges and agrees
that as of the Effective Date, he has no rights to purchase any
shares of the Company’s capital stock from the Company except
for his rights pursuant to those options and restricted stock
awards set forth on Schedule I attached hereto
(collectively, the “ Outstanding Awards ”). The
Executive and the Company further agree that the Outstanding Awards
shall continue to vest subject to Executive’s continued
employment and in accordance with their existing terms.
2. Resignation from Offices of
the Company; Termination of Agreements. On the Effective Date,
the Executive shall resign from any and all offices that he holds
with the Company. The Executive acknowledges and agrees that each
of (a) the Employment Agreement, dated as December 4,
1991, by and between the Company and the Executive (the “
Employment Agreement ”); and (b) the Amended and
Restated Executive Severance Agreement, dated as of
December 23, 2008, by and between the Company and the
Executive (the “ Executive Severance Agreement
”), is hereby terminated effective as the date of this
Agreement. The Executive further acknowledges that he has no rights
under either of the Employment Agreement or the Executive Severance
Agreement and that he is entitled to no benefit thereunder now or
at any time in future.
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3. Termination of Employment . Any
termination of the Executive’s employment by the Company or
by the Executive at any time during the Transition Term (other than
due to the death of the Executive) shall be communicated by a
written notice to the other party hereto (the “ Notice of
Termination ”) given in accordance with Section 9.
Any Notice of Termination shall (i) specify the Date of
Termination (as defined below), and (ii) indicate (in the case
of a termination by the Company) whether such termination is for
Cause (as defined below). The effective date of an employment
termination (the “ Date of Termination ”) shall
be the close of business on the date specified in the Notice of
Termination (which date may not be less than 15 days or more than
60 days after the delivery of such Notice of Termination), in the
case of a termination other than one due to the Executive’s
death, or the date of the Executive’s death, as the case may
be. For purposes of this Agreement, “ Cause ,”
shall mean the Executive’s willful engagement in illegal
conduct or gross misconduct that is materially injurious to the
Company, and, for purposes of this definition, no act or failure to
act by the Executive shall be considered “willful”
unless it is done intentionally and without reasonable belief that
the Executive’s action was in the best interests of the
Company.
4. Severance
Benefits . In return for the timely execution, non-revocation
and return of this Agreement as set forth in Section 10 below,
and the Release of Claims attached hereto as Exhibit B (the
“ Release of Claims ”) on the Date of
Termination, and provided the Executive has complied with all
conditions hereof, and further provided that the Transition Term
ends due to: (x) the Company’s failure to extend the
Original Term or any Extended Term under Section 1, or
(y) the Company’s Notice of Termination without Cause
under Section 3, the Company shall provide the Executive with
severance pay in an amount equal to Ten Thousand Dollars ($10,000)
(the “ Severance Pay ”). This Severance Pay
shall be subject to all applicable taxes and withholdings and will
be paid to the Executive on the Company’s first regular pay
date following the 30 th day after the Date of
Termination, provided that the Release of Claims has been executed
and any applicable revocation period with respect to the Release of
Claims has expired as of such date.
5. Exclusive Severance
Benefits . The making of the severance payment and the
provision of the benefits by the Company to the Executive under
Section 4 shall constitute the entire obligation of the
Company to the Executive as a result of the termination of his
employment, and the Executive shall not be entitled to additional
payments or benefits under any other plan, program, policy,
practice, contract or agreement of the Company or its
subsidiaries.
6. Release . In consideration
of the employment transition arrangement and the severance benefits
set forth in Section 4 of this Agreement, which the Executive
acknowledges he would not otherwise be entitled to receive, the
Executive, on behalf of himself and his representatives, agents,
estate, heirs, successors and assigns, hereby fully, forever,
irrevocably and unconditionally releases, remises, and discharges
the Company, its affiliates, subsidiaries, parent companies,
predecessors and successors and all of their respective past and
present officers, directors, stockholders, partners, members,
employees, agents, representatives, plan administrators, attorneys,
insurers and fiduciaries (each in their individual and corporate
capacities) (collectively, the “ Released Parties
”) from any and all claims, charges, complaints, demands,
actions, causes of action, suits, rights, debts, sums of money,
costs, accounts, covenants, contracts, agreements, promises,
doings, omissions, damages, executions, obligations, liabilities,
and expenses (including attorneys’ fees and costs) of every
kind and nature which the Executive ever had or now has against any
or all of the Released Parties including, but not
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limited to, all claims arising out of the
Executive’s employment with or separation from the Company,
all employment discrimination claims under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §2000e et seq .,
the Age Discrimination in Employment Act, 29 U.S.C., §621
et seq ., the Americans With Disabilities Act of
1990, 42 U.S.C., §12101 et seq . , the
Family and Medical Leave Act, 29 U.S.C. §2601 et
seq ., and the Massachusetts Fair Employment Practices Act,
M.G.L. c.151B, § 1 et seq ., all as amended; all
claims arising out of the Fair Credit Reporting Act, 15 U.S.C.
§1681 et seq ., the Employee Retirement Income
Security Act of 1974, 29 U.S.C. §1001 et seq .,
the Worker Adjustment Retraining and Notification Act, 29 U.S.C.
§2101 et seq ., Section 806 of the
Corporate and Criminal Fraud Accountability Act of 2002, 18 U.S.C.
§ 1514(A), the Rehabilitation Act of 1973, 29 U.S.C. §
701 et seq., the Massachusetts Civil Rights Act, M.G.L. c.12
§§11H and 11I, the Massachusetts Equal Rights Act, M.G.L.
c.93 §102 and M.G.L. c.214, §1C, the Massachusetts Labor
and Industries Act, M.G.L. c. 149, §1 et seq .,
the Massachusetts Privacy Act, M.G.L. c.214, §1B, and the
Massachusetts Maternity Leave Act, M.G.L. c.149, § 105(d), all
as amended; all claims arising under any and all other similar
federal, state and local statutes, all as amended; and all common
law claims including, but not limited to, actions in tort,
defamation, retaliation and breach of contract (including, without
limitation, any claims arising out of or related to the Executive
Severance Agreement or the Employment Agreement), all claims to any
non-vested ownership interest in the Company (contractual or
otherwise), including but not limited to claims to stock or stock
options, and any other claims or damages arising under any other
common law theory or any federal, state or local ordinance not
expressly referenced above; provided, however, that nothing in this
Agreement: (a) prevents the Executive from filing, cooperating
with, or participating in any proceeding before the EEOC or a state
Fair Employment Practices Agency (except that the Executive
acknowledges that he may not recover any monetary benefits in
connection with any such claim, charge or proceeding),
(b) extends to any rights that the Executive may have arising
after the date hereof, (c) extends to any rights the Executive
may have to indemnification as an officer or director of the
Company under the provisions of the Company’s by-laws or
applica
