Exhibit 10.41
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into by and between Plug Power Inc. (the "Company"),
and Xxxxx X. Xxxxxxxx (the "Executive"), effective as of December 15, 2000.
1. Employment Period. The Company hereby agrees to employ the Executive, and
-----------------
the Executive hereby agrees to remain in the employ of the Company subject
to the terms and conditions of this Agreement, for the period commencing on
December 15, 2000 (the "Commencement Date") and ending on the one year
anniversary of the Commencement Date (the "Employment Period") unless
earlier terminated as provided herein; provided, however, that the
-----------------
Employment Period shall automatically be extended without action by either
party for additional one (1) year periods, as of the first anniversary of
the Commencement Date and each succeeding anniversary thereof unless the
Company or the Executive shall have served written notice to the other party
as provided in this Agreement.
2. Terms of Employment.
-------------------
a) Position and Duties
-------------------
(i) During the Employment Period, the Executive shall serve in the
position and at the location set forth on Exhibit A hereto, or such
other executive position(s) appropriate to the Executive's training,
qualifications or experience, as the Compensation Committee of the
Board of Directors of the Company may from time to time determine are
reasonably comparable to the Executive's initial position.
(ii) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the
Executive agrees to devote his full attention and time to the
business and affairs of the Company and to use the Executive's
reasonable best efforts to: (A) perform such responsibilities in a
professional manner, (B) promote the interests of the Company and its
subsidiaries, (C) discharge such executive and administrative duties
not inconsistent with his position as may be assigned to him by the
Board, and (D) serve, without additional compensation, as a director
of the Company or as an officer and director of any subsidiary of the
Company if elected or appointed as such. It shall not be a violation
of this Agreement for the Executive to: (A) serve on corporate, civic
or charitable boards
1
or committees, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions and/or (C) manage personal
investments, so long as such activities do not conflict with or
significantly interfere with the performance of the Executive's
responsibilities as an employee of the Company in accordance with
this Agreement.
b) Compensation.
------------
(i) Base Salary. During the Employment Period, the Executive shall
-----------
receive an annual base salary ("Annual Base Salary") in the initial
amount of $300,000. The Annual Base Salary may be revised from time
to time. The Annual Base Salary shall be paid in accordance with the
Company's normal payroll practices for senior executives subject only
to such payroll and withholding deductions as are required by law.
The Annual Base Salary shall be paid no less frequently than in equal
monthly installments. For purposes of this Agreement, employment and
compensation paid by any direct or indirect subsidiary of the Company
will be deemed to be employment and compensation paid by the Company.
(ii) Annual Incentive. During the Employment Period, the Executive
----------------
shall be eligible to receive an annual incentive bonus with a target
amount equal to 100 percent of his Annual Base Salary to be
determined in accordance with the provisions of a bonus plan adopted
by the Board of Directors of the Company (the "Bonus Plan").
Extraordinary performance, as defined by the Compensation Committee
of the Board, and the Bonus Plan, can result in a maximum award of up
to 200% of Annual Base Salary. Any bonus awarded under such Bonus
Plan shall be paid one-third in cash and the remainder in the form of
equity (such as options and restricted stock) with a vesting schedule
no greater than four years.
(iii) Savings and Retirement Plans. During the Employment Period, the
----------------------------
Executive shall be eligible to participate in all savings and
retirement plans, practices, policies and programs to the extent
applicable generally to other peer executives of the Company and any
affiliated entities, and in accordance with the provisions of those
plans. Nothing shall require the Company to establish any such plans,
practices, policies and/or programs or limit the Company's right, in
its sole discretion, to amend or terminate any such plans, practices,
policies and/or programs at any time.
(iv) Welfare and Other Benefits Plans. During the Employment Period,
--------------------------------
the Executive and the Executive's eligible family members
2
shall be entitled to participate in all benefit and executive
perquisites under welfare, fringe and other similar benefit plans,
practices, policies and programs pursuant to the terms, conditions
and eligibility requirements of any such plans, policies, practices
and/or programs, which may be provided by the Company and its
affiliated entities (including, without limitation, medical,
prescription, dental, disability, employee life, group life,
accidental death and travel accident insurance plans and programs) to
the extent applicable generally to other peer executives of the
Company and its affiliated entities. Nothing contained in this
Agreement shall require the Company to establish any such plans,
practices, policies and/or programs or limit the Company's right, in
its sole discretion, to amend or terminate any such benefit plans,
practices and/or programs at any time.
(v) Expenses. During the Employment Period, the Executive shall be
--------
entitled to receive prompt reimbursement for all reasonable business
expenses incurred and submitted by the Executive in accordance with
the policies of the Company.
c) Contingent Retirement Benefit. The Company shall establish a funding
-----------------------------
vehicle on the Commencement Date in an amount equal to the agreed upon
lump sum, present value of the difference between (i) the lump sum
benefit Executive would have received pursuant to the Ford/Visteon
pension plan if he had retired at his normal retirement date in
accordance with the provisions of such plan; and (ii) the lump sum
benefit Executive is eligible to receive pursuant to such plan based upon
his actual retirement date (the "Contingent Retirement Benefit"). In
order to calculate the amount of the Contingent Retirement Benefit, the
Company shall use an interest rate factor equal to 8%, a life expectancy
of 80 years of age and a normal retirement age of 65. This Contingent
Retirement Benefit shall vest based on a 5-year cliff vesting schedule.
The Contingent Retirement Benefit shall also vest prior to the expiration
of the five year period in the event Executive is terminated for any
reason other than "Cause" (as defined in Paragraph 3 below) or as a
result of Disability (as defined in Paragraph 3 below). The Contingent
Retirement Benefit shall also vest prior to the expiration of the five
year period in the event Executive terminates his employment for "Good
Reason" (as defined below in Paragraph 3 below). Notwithstanding the fact
that the Contingent Retirement Benefit shall have vested in accordance
with the provisions of this Paragraph 2(c), the Company shall not have
any obligation to pay the Contingent Retirement Benefit to the Executive
if (i) Executive's "vested equity value" of the Initial Stock Options
granted to the Executive pursuant to Paragraph 6 of this Agreement equals
or exceeds three times the amount of the Contingent Retirement
3
Benefit, or (ii) Executive's employment is terminated for "Cause" (as
defined in Paragraph 3 of this Agreement). In such cases, the Executive
agrees to relinquish all rights to such payment. The "vested equity value"
of the Initial Stock Options shall be equal to the market value of the
vested number of shares of stock subject to such options, reduced by the
Executive's exercise price for such shares, and shall be tested at the time
the Contingent Retirement Benefit becomes fully vested in accordance with
the provisions of this Paragraph 2(c).
3. Termination of Employment
-------------------------
Notwithstanding any other provisions of this Agreement, the Executive's
employment may be terminated upon the occurrence of any event set forth
below. All rights and obligations of the parties shall terminate as of the
effective date of such termination except as specifically provided herein.
a) Death or Disability. The Executive's employment shall terminate
-------------------
automatically upon the Executive's death during the Employment Period. In
the event of the Executive's death, the effective date of termination
shall be the date of Executive's death. If the Company determines in good
faith that the Disability (as defined below) of the Executive has
occurred during the Employment Period, it may give to the Executive
written notice of its intention to terminate the Executive's employment.
In such event, the Executive's employment with the Company shall
terminate effective on the thirtieth day after receipt of such notice by
the Executive. For purposes of this Agreement, "Disability" shall mean
the Executive's inability to perform his normal duties for the Company
for three months or more during any twelve-month period.
b) Cause. The Company may terminate the Executive's employment during the
-----
Employment Period for "Cause". For purposes of this Agreement, "Cause"
shall mean:
(i) any material breach of this Agreement by the Executive, which
breach is not remedied within thirty (30) days after written notice
thereof, specifying the nature of such breach in reasonable detail,
is given by the Board to the Executive,
(ii) Executive's conviction of a felony or other crime involving
moral turpitude,
(iii) any act or omission by the Executive during the Employment
Period involving willful malfeasance or gross negligence in the
performance of his duties hereunder, and/or
4
(iv) Executive's failure to follow the reasonable instructions given
in good faith by the Board, which failure is not remedied within
thirty (30) days after written notice thereof specifying the details
of such conduct is given by the Board to the Executive. The effective
date of termination for purposes of clause 3(b)(iii) shall be the
date of such act and the effective date of termination for purposes
of clause 3(b)(ii) shall be the date of such conviction. If Executive
does not remedy any condition identified in clause 3(b)(i) and/or
3(b)(iv) within such notice period, then termination shall be deemed
to occur 30 days after the date of the notice from the Company. The
Executive shall forfeit all right to unearned Annual Base Salary and
any bonus accrued pursuant to the Bonus Plan as of the effective date
of such termination for Cause.
c) Good Reason.
-----------
(i) The Executive's employment may be terminated by the Executive for
Good Reason.
(ii) For purposes of this Agreement, prior to any Change in Control
(as defined in this Paragraph 3(c)), or after any applicable Window
Period (as defined in this Paragraph 3(c)), "Good Reason" shall mean
a material breach by the Company of this Agreement after the
Executive has given the Company notice of the breach and a reasonable
opportunity to cure.
(iii) In the event of any Change in Control, "Good Reason" shall mean
that any of the following events has occurred without the Executive's
written consent: (i) a demotion in the Executive's status, position
or responsibilities which, in his reasonable judgment, does not
represent a positive change from his status, position or
responsibilities as in effect immediately prior to the Change in
Control; (ii) the assignment to the Executive of any duties or
responsibilities which, in his reasonable judgment, are inconsistent
with such status, position or responsibilities immediately prior to
the Change in Control; or any removal of the Executive from or
failure to reappoint or reelect him to any of such positions that the
Executive had immediately prior to the Change in Control; (iii) a
reduction by the Company in the Executive's Annual Base Salary as in
effect on the date hereof or as the same may be increased from time
to time during the term of this Agreement or the Company's failure to
increase (within twelve (12) months of the Executive's last increase
in Annual Base Salary) the Executive's Annual Base Salary after a
Change in Control in an amount which at least equals, on a percentage
basis,
5
the average percentage increase in base salary for all executive and
senior executives of the Company effected in the preceding twelve
(12) months; (iv) the relocation of the principal executive offices
of the Company to a location more than fifty (50) miles beyond which
the office at which Executive performed his duties immediately prior
to the Change in Control, except for required travel on the Company's
business to an extent substantially consistent with his business
travel obligations at the time of a Change in Control; (v) the
failure by the Company to continue in effect any incentive, bonus or
other compensation plan in which the Executive participated
immediately prior to the Change in Control, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan),
to which he has consented, has been made with respect to such plan in
connection with the Change in Control, or the failure by the Company
to continue his participation therein, or any action by the Company
which would directly or indirectly materially reduce his
participation therein; (vi) the failure by the Company to continue to
provide the Executive with benefits substantially similar to those
enjoyed by him or to which he was entitled under any of the Company's
profit sharing, life insurance, medical, dental, health and accident,
or disability plans in which he was participating at the time of a
Change in Control, the taking of any action by the Company which
would directly or indirectly materially reduce any of such benefits
or deprive him of any material fringe benefit enjoyed by him or to
which he was entitled at the time of the Change in Control, or (vii)
the failure of the Company to obtain a satisfactory agreement from
any successor or assign of the Company to assume and agree to perform
this Agreement. Notwithstanding the foregoing, Executive may only
exercise his right to terminate his employment for "Good Reason"
pursuant to the provisions of this Paragraph 3(c)(iii) if the
Executive's Notice of Termination specifying the event constituting
Good Reason pursuant to the provisions of this Paragraph 3(c)(iii) is
delivered to the Company within one year of the date of the Change in
Control (the "Window Period").
(iv) For purposes of this Agreement, "Change of Control" shall mean the
occurrence of any one of the following events:
(A) any "Person," as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934 (the "Act") (other than
(1) the Company, (2) any of its Subsidiaries, (3) any trustee,
fiduciary or other person or entity holding securities under
any employee benefit plan or trust of the Company or any of
its subsidiaries, or (4) either of Edison Development
Corporation, a Michigan corporation or Mechanical Technology
6
Incorporated, a New York corporation), together with all
"affiliates" and "associates" (as such terms are defined in
Rule 12b-2 under the Act of such Person, shall become the
"beneficial owner" (as such term is defined in Rule 13d-3
under the Act), directly or indirectly, of securities of the
Company representing 50 percent or more of the combined voting
power of the Company's then outstanding securities having the
right to vote in an election of the Company's Board of
Directors ("Voting Securities") (in such case other than as a
result of an acquisition of securities directly from the
Company); or
(B) persons who, as of the Effective Date, constitute the
Company's Board of Directors (the "Incumbent Directors") cease
for any reason, including, without limitation, as a result of
a tender offer, proxy contest, merger or similar transaction,
to constitute at least a majority of the Board, provided that
any person becoming a director of the Company subsequent to
the Effective Date shall be considered an Incumbent Director
if such person's election was approved by or such person was
nominated for election by either (1) a vote of at least a
majority of the Incumbent Directors or (2) a vote of at least
a majority of the Incumbent Directors who are members of a
nominating committee comprised, in the majority, of Incumbent
Directors; but provided further, that any such person whose
initial assumption of office is in connection with an actual
or threatened election contest relating to the election of
members of the Board of Directors or other actual or
threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board, including by reason of
agreement intended to avoid or settle any such actual or
threatened contest or solicitation, shall not be considered an
Incumbent Director; or
(C) the stockholders of the Company shall approve (1) any
consolidation or merger of the Company where the stockholders
of the Company, immediately prior to the consolidation or
merger, would not, immediately after the consolidation or
merger, beneficially own (as such term is defined in Rule 13d-
3 under the Act), directly or indirectly, shares representing
in the aggregate more than 50 percent of the voting shares of
the corporation issuing cash or securities in the
consolidation or merger (or of its ultimate parent
corporation, if any), (2) any sale, lease, exchange or other
transfer (in one transaction or a series of transactions
contemplated or arranged by any party as a single plan) of all
7
or substantially all of the assets of the Company or (3) any
plan or proposal for the liquidation or dissolution of the
Company.
Notwithstanding the foregoing, a "Change of Control" shall not be
deemed to have occurred for purposes of the foregoing clause (A)
solely as the result of an acquisition of securities by the Company
which, by reducing the number of shares of Voting Securities
outstanding, increases the proportionate number of shares of Voting
Securities beneficially owned by any person to 50 percent or more of
the combined voting power of all then outstanding Voting Securities;
provided, however, that if any person referred to in this sentence
-------- -------
shall thereafter become the beneficial owner of any additional
shares of Voting Securities (other than pursuant to a stock split,
stock dividend, or similar transaction or as a result of an
acquisition of securities directly from the Company) and immediately
thereafter beneficially owns 50 percent or more of the combined
voting power of all then outstanding Voting Securities, then a
"Change of Control" shall be deemed to have occurred for purposes of
the foregoing clause (A).
(v) Notwithstanding anything contained in this Agreement to the
contrary, if the Executive's employment is terminated before a
Change in Control as defined in this Paragraph 3(c) and the
Executive reasonably demonstrates that such termination (A) was
at the request of a third party who has indicated an intention
or taken steps reasonably calculated to effect a "Change in
Control" and who effectuates a "Change in Control" or (B)
otherwise occurred in connection with, or in anticipation of, a
"Change in Control" which actually occurs, then for all purposes
of this Agreement, the date of a "Change in Control" with
respect to the Executive shall mean the date immediately prior
to the date of such termination of the Executive's employment.
d) Without Good Reason. This Agreement may be terminated by the Executive,
-------------------
upon sixty (60) days' prior notice to the Company, in the absence of "Good
Reason". In such event, the effective date of termination shall be the date
set forth in such notice.
e) Without Cause. This Agreement may be terminated by the Company,
-------------
without Cause, upon sixty (60) days prior notice to the Executive. In such
event, the effective date of termination shall be the date set forth in
such notice.
f) Notice of Termination. Any termination by the Company for Cause, or by the
---------------------
Executive for Good Reason, shall be communicated by Notice of Termination
to the other party. For purposes of this Agreement, a "Notice of
Termination" means a written notice which
8
(i) indicates the specific termination provision in this Agreement relied
upon, (ii) to the extent applicable, sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated and (iii) if the
Date of Termination is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the Executive or
the Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason or Cause shall
not waive any right of the Executive or the Company, respectively,
hereunder or preclude the Executive or the Company, respectively, from
asserting such fact or circumstance in enforcing the Executive's or the
Company's rights hereunder.
g) Date of Termination. "Date of Termination" or "Termination Date" for
-------------------
purposes of this Agreement means the effective date of termination
determined in accordance with the provisions of this Paragraph 3.
4. Obligations of the Company upon Termination.
-------------------------------------------
a) Good Reason; Other Than for Cause. If, during the Employment Period, the
---------------------------------
Company shall terminate the Executive's employment other than for Cause,
death or Disability, or the Executive shall terminate employment for Good
Reason:
i) The Company shall pay to the Executive in a lump sum in cash
within thirty (30) calendar days after the Date of Termination, the
aggregate of the amounts set forth in clauses A and B below:
A. the sum of: (1) the Executive's Annual Base Salary accrued
through the Date of Termination to the extent not theretofore
paid, and (2) the product of (x) the greater of the actual bonus
accrued through the Date of Termination pursuant to the Bonus Plan
or the annual average bonus paid to the Executive pursuant to the
Bonus Plan determined based on the three (3) fiscal years
immediately preceding the Termination Date (the "Minimum Bonus")
and (y) a fraction, the numerator of which is the number of days
in the current calendar year through the Date of Termination, and
the denominator of which is 365 (the sum of the amounts described
in clauses (1) and (2) are referred to herein as the "Accrued
Obligations");
9
B. the amount equal to the product of (1) and (2) where:
(1) is: (i) if the Date of Termination occurs within the Window
Period, the lesser of (a) two, or (b) the number of years,
rounded to the nearest twelfth (1/12th) of a year, between the
Date of Termination and the Executive's attainment of age
sixty-five (65) and
(ii) if the Date of Termination occurs prior to a Change in
Control or outside the Window Period, the number one (1),
and where:
(2) is: the sum of (x) the Executive's Annual Base Salary and (y)
the Minimum Bonus.
ii) Any restricted stock, stock options and any other stock awards
granted to Executive that were outstanding immediately prior to the
Termination Date including, but not limited to, the Initial Stock Options
("Prior Stock Awards") shall become immediately vested.
iii) The Contingent Pension Benefit as defined in Paragraph 2(c) shall
also immediately vest and its value compared to the vested equity value
of the Initial Stock Options to determine Executive's entitlement to such
Contingent Pension Benefit. Executive shall only be entitled to receive
the Contingent Pension Benefit if the vested equity value of the Initial
Stock Options is less than three times the amount of the Contingent
Retirement Benefit.
iv) The Company shall continue benefits to the Executive and/or the
Executive's eligible family members at least equal to those which would
have been provided to them in accordance with the welfare plans,
programs, practices, executive pre-requisites and policies described in
section 2(b)(iv) of this Agreement if the Executive's employment had not
been terminated provided, however, that if the Executive becomes
reemployed with another employer and is eligible to receive medical or
other welfare benefits under another employer provided plan, the medical
and other welfare benefits described herein shall be secondary to those
provided under such other plan during such applicable period of
eligibility. Such benefits shall be continued for the period determined
below:
10
1) if the Date of Termination occurs within the Window Period, the
lesser of (a) two or (b) the number of years, rounded to the nearest
twelfth (1/12th) of a year, between the Date of Termination and the
Executive's attainment of age sixty-five (65) and
2) if the Date of Termination occurs prior to a Change in Control or
outside the Window Period, the number one (1).
v) To the extent not theretofore paid or provided, the Company shall
timely pay or provide to the Executive any other amounts or benefits
required to be paid or provided which the Executive is entitled to
receive as a participant of any plan, program, policy or practice or
contract or agreement of the Company and its affiliated companies,
excluding any severance plan or policy (such other amounts and benefits
shall be hereinafter referred to as the "Other Benefits").
b) Cause; Other than for Good Reason. If the Executive's employment is
---------------------------------
terminated for Cause or the Executive terminates employment without Good
Reason, this Agreement shall terminate without further obligations to the
Executive other than the obligation to pay to the Executive his Annual Base
Salary and Other Benefits through the Date of Termination.
c) Death. If the Executive's employment is terminated by reason of the
-----
Executive's death during the Employment Period, this Agreement shall
terminate without further obligations to the Executive's legal
representatives under this Agreement, other than payment of Accrued
Obligations and the timely payment or provision of Other Benefits. Accrued
Obligations shall be paid to the Executive's estate in a lump sum in cash
within 30 days of the Date of Termination.
d) Disability. If the Executive's employment is terminated by reason of the
----------
Executive's Disability during the Employment Period, this Agreement shall
terminate without further obligations to the Executive, other than as set
forth in this Paragraph 4(d). The Company shall pay Executive Accrued
Obligations and the timely payment or provision of Other Benefits. The
Contingent Pension Benefit as defined in Paragraph 2(c) shall also
immediately vest and its value compared to the vested equity value of the
Initial Stock Options to determine Executive's entitlement to all or any
portion of such Contingent Pension Benefit. Executive shall only be entitled
to receive the Contingent Pension Benefit if the vested equity value of the
Initial Stock Options is less than three times the amount of the
11
Contingent Retirement Benefit. The Initial Stock Options shall become
immediately vested upon the Executive's Disability. Accrued Obligations
shall be paid to the Executive in a lump sum in cash within 30 days of
the Date of Termination
5. Vacation. The Executive shall be entitled to paid vacation and holidays
--------
annually during the Employment Period in accordance with the Company's policy
as determined from time to time by the Board, provided, however, the
-------- -------
Executive shall be entitled to not less than four (4) weeks of paid vacation
during the first year of the Employment Period following the Commencement
Date and not less than five (5) weeks of paid vacation each year, thereafter.
6. Stock Options. The Company grants to Executive nonqualified stock options
-------------
to acquire up to 750,000 shares of the Company's common stock $0.01 par
value, at an exercise price of $11.1875 per share (this price is the fair
market value of the Company's Stock on the date the Executive signed the
Offer Letter), in accordance with and subject to the provisions of the
Company's 1999 Stock Option and Incentive Plan (the "Initial Stock Options").
The shares subject to the Initial Stock Options shall vest based on the
following schedule.
Vesting Date Number of
------------ ---------
Option Shares Exercisable
-------------------------
December 15, 2001 15%
December 15, 2002 30%
December 15, 2003 50%
December 15, 2004 75%
December 15, 2005 100%
No portion of the Initial Stock Options may be exercised until such portion
has vested. The Initial Stock Options shall expire on December 15, 2010
("Expiration Date") and no portion of the Initial Stock Options shall be
exercisable after the Expiration Date. The Initial Stock Options shall become
fully vested in the event of the Executive's Disability, his termination for
Good Reason or in the event the Company terminates his employment for any
reason other than Cause.
12
7. Restricted Stock. The Company agrees to grant Executive a restricted stock
----------------
award entitling Executive to acquire, at par value, an amount of shares of
the Company's $0.01 par value per share, common stock equivalent to the
amount of restricted shares the Executive forfeited as a result of
Executive's retirement from Ford/Visteon (the "Restricted Stock"). The
Restricted Stock shall vest based on the same schedule that the restricted
shares the Executive forfeited as a result of Executive's retirement from
Ford/Visteon would have vested. The Restricted Stock award shall be made in
accordance with and subject to the provisions of the Company's 1999 Stock
Option and Incentive Plan ("Restricted Stock"). Executive shall provide the
Company affirmation of the restricted shares the Executive forfeited as a
result of the Executive's retirement from Ford/Visteon.
8. Visteon 2000 Incentive Bonus Offset. Executive shall receive a payment in
-----------------------------------
March 2001 from the Company equivalent to the estimated annual incentive
bonus that Executive would have earned at Visteon for the year 2000 which
Executive forfeited as a result of Executive's retirement from Ford/Visteon.
Such payment shall be made in the form of cash. Executive shall provide the
Company affirmation of his 1999 incentive bonus paid and, to the extent
possible, the calculation to be used to quantify his 2000 incentive bonus
award, prior to March 1, 2001.
9. Relocation. Executive shall be reimbursed for all customary and reasonable
----------
expenses incurred in connection with relocation, including the movement of
all household goods, temporary housing costs during the relocation period not
to extend beyond June 30, 2001, two house hunting trips to the Capital
District for Executive, closing costs associated with selling Executive's
current residence and purchasing a new residence in the Capital District, and
reasonable incidental costs and the personal tax consequences thereof;
provided, however, that any reimbursement hereunder shall not exceed an
amount equal to two months' Annual Base Salary, grossed up for tax purposes.
10. Cash Sign-On Inducement. Upon execution of this Agreement, Executive shall
-----------------------
receive the sum of $50,000, grossed up for tax purposes.
11. Confidential Information: Noncompetition.
-----------------------------------------
a) The Executive shall have executed and shall be bound by the provisions
of a certain "Employee Patent, Confidential Information and Non-Compete
Agreement." The provisions of this Employment Agreement shall supplement
but shall not supersede the provisions of such Employee Patent,
Confidential Information and Non-Compete Agreement. The terms of the
Employee Patent, Confidential Information and Non-Compete Agreement shall
be incorporated in this Agreement by this reference. In the event of any
express conflict
13
between the terms of the Employee Patent, Confidential Information and
Non-Compete Agreement and this Employment Agreement, the terms of the
Employee Patent, Confidential Information and Non-Compete Agreement shall
control.
b) The Executive shall hold in a fiduciary capacity for the benefit of
the Company all secret or confidential information, knowledge or data
relating to the Company or any of its affiliated companies, and their
respective businesses, which shall have been obtained by the Executive
during the Executive's employment by the Company or any of its affiliated
companies and which shall not be or become public knowledge (other than
by acts by the Executive or representatives of the Executive in violation
of this Agreement). After termination of the Executive's employment with
the Company, the Executive shall not, without the prior written consent
of the Company or as may otherwise be required by law or legal process
(provided the Company has been given notice of and opportunity to
challenge or limit the scope of disclosure purportedly so required),
communicate or divulge any such information, knowledge or data to anyone
other than the Company and those designated by it. In addition, Executive
shall not solicit employees of the Company for at least a one (1) year
period beginning on the Date of Termination.
c) The parties expressly agree that the terms of the non-competition
provisions set forth in the Employee Patent, Confidential Information and
Non-Compete Agreement are reasonable, enforceable, and necessary to
protect the Company's interests, and are valid and enforceable. In the
unlikely event, however, that a court of competent jurisdiction was to
determine that any portion of such limited non-competition provision is
unenforceable, then the parties agree that the remainder of the limited
non-competition provision set forth in such Agreement shall remain valid
and enforceable to the maximum extent possible.
d) The Executive agrees that it would be difficult to measure damages to the
Company from any breach of the covenants contained this Paragraph 11
and/or in the Employee Patent, Confidential Information and Non-Compete
Agreement, but that such damages from any such beach would be great,
incalculable and irremediable, and that money damages would be an
inadequate remedy. Accordingly, the Executive agrees that the Company may
have specific performance of the terms of this Agreement and Employee
Patent, Confidential Information and Non-Compete Agreement in any court
of competent jurisdiction. The parties agree however, that the specific
performance remedies described above shall not be the exclusive remedies,
and the Company may enforce any other remedy or remedies available to it
either in law
14
or in equity including, but not limited to, temporary, preliminary,
and/or permanent injunctive relief.
12. Successors.
----------
a) This Agreement is personal to the Executive and shall not be
assignable by the Executive.
b) This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
c) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all
of the business and/or assets of the Company to expressly assume and
agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the
Company as hereinbefore defined herein and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
13. Internal Revenue Code Limits. Notwithstanding anything in this
----------------------------
Agreement to the contrary (other than this Section), in the event that the
Company's independent auditor (the "Accounting Firm") determines that any
payment by the Company to or for the benefit of the Executive pursuant to
the terms of this Agreement would be nondeductible by the Company for
federal income tax purposes because of Section 280G of the Code, then the
amount payable to or for the benefit of the Executive pursuant to this
Agreement shall be reduced (but not below zero) to the maximum amount
payable without causing the payment to be nondeductible by the Company
because of Section 280G of the Code (the "Section 280G Limit. Such
determination by the Accounting Firm shall be conclusive and binding upon
the parties.
14. Miscellaneous.
-------------
a) This Agreement shall be governed by and construed in accordance with the
laws of New York, without reference to principles of conflict of laws.
The captions of this Agreement are not part of the provisions hereof and
shall have no force or effect. This Agreement may not be amended or
modified except by a written agreement executed by the parties hereto or
their respective successors and legal representatives.
b) All notices and other communications hereunder shall be in writing and
shall be deemed to be received when (i) hand delivered (with written
confirmation of receipt), (ii) when received by the addressee, if
15
sent by nationally recognized overnight delivery service (receipt
requested) in each case to the address set forth below (or to such other
address as a party may designate by notice to the other party).
If to the Executive:
-------------------
Xx. Xxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
With a copy to:
---------------
Xxxxxxx Xxxxxxx, Esq.
Xxx, Xxxxxxx & Giarmarco, P.C.
000 Xxxx Xxx Xxxxxx Xxxx
Xxxxxxxx Circle II, 00xx Xxxxx
Xxxx, XX 00000-0000
If to the Company:
-----------------
Plug Power Inc.
Attn: Xxx-Xxxxx Xxxxxxx
General Counsel
000 Xxxxxx-Xxxxxx Xxxx
Xxxxxx, XX 00000
With a copy to:
---------------
Xxxxx, Xxxxxxxx & Flexner LLP
Attn: Xxxxxxxx X. Xxxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxx Xxxx 00000
c) The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of
this Agreement.
d) The Company may withhold from any amounts payable under this Agreement
such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
e) This Employment Agreement may be executed through the use of separate
signature pages or in any number of counterpart copies, and each of such
counterparts shall, for all purposes, constitute one agreement binding on
all the parties.
16
f) The provisions of this Agreement contain all of the terms and
conditions agreed upon by the parties relating to the subject matter of
this Agreement and shall supersede all prior agreements, negotiations,
correspondence, undertakings and communications of the parties, either
oral or written, with respect to such subject matter.
IN WITNESS WHEREOF, the Executive has executed this Agreement and, subject
to the authorization of its Board of Directors, the Company has caused this
Agreement to be executed in its name on its behalf, as of the Commencement Date.
/s/ Xxxxx X. Xxxxxxxx
_____________________________________, Executive
Xxxxx X. Xxxxxxxx
December 15, 2000
_____________________________________
Date
PLUG POWER INC.
/s/ Xxxxxx XxXxxxx
By___________________________________
Xxxxxx XxXxxxx, Chairman of
Board of Directors
December 15, 2000
______________________________________
Date
17
EXHIBIT A
Position: President and Chief Executive Officer
Location: 000 Xxxxxx Xxxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000
18
