Attached files
| file | filename |
|---|---|
| 10-Q - EnSync, Inc. | v174925_10q.htm |
| EX-31.2 - EnSync, Inc. | v174925_ex31-2.htm |
| EX-10.3 - EnSync, Inc. | v174925_ex10-3.htm |
| EX-32.2 - EnSync, Inc. | v174925_ex32-2.htm |
| EX-10.5 - EnSync, Inc. | v174925_ex10-5.htm |
| EX-10.4 - EnSync, Inc. | v174925_ex10-4.htm |
| EX-31.1 - EnSync, Inc. | v174925_ex31-1.htm |
| EX-10.2 - EnSync, Inc. | v174925_ex10-2.htm |
| EX-32.1 - EnSync, Inc. | v174925_ex32-1.htm |
Exhibit
10.1
January
7, 2010
Mr. Eric
C. Apfelbach
5804
Ivanhoe Circle
Madison,
WI 53711
Dear
Eric:
On behalf
of the Board of Directors of ZBB Energy Corporation (“ZBB”), I am delighted to
invite you to join our company as its President and Chief Executive Officer, and
as a member of our Board of Directors. This letter agreement sets
forth the terms your employment.
|
1.
|
Position:
|
|
|
Ÿ
|
You
will serve as ZBB’s President and Chief Executive Officer and report to
ZBB’s Board of Directors. Your services to ZBB will be
performed in Menomonee Falls, Wisconsin. You acknowledge,
however, that you may be required to travel extensively in connection with
the performance of your duties
hereunder.
|
|
|
Ÿ
|
During
your employment by ZBB, you may accept a position on the board of
directors of any company that does not directly compete with the business
of ZBB, provided such position is approved in advance by ZBB’s Board of
Directors. It is understood that you are currently a member of
the board of directors of the for-profit companies and a member of the
board of directors or advisory board for the non-profit and other industry
or economic associations previously disclosed to ZBB, which memberships
shall not be prohibited by the terms hereof, provided that such
memberships will not interfere in any way with the fulfillment of your
duties as President and Chief Executive Officer and as a director of
ZBB.
|
|
|
Ÿ
|
Nothing
contained in this letter will be construed as conferring upon you any
right to remain employed by ZBB or any of its subsidiaries or affiliates
or affect the right of ZBB or any of its subsidiaries or its affiliates to
terminate your employment at any time for any reason or no reason, subject
to the obligations of ZBB as set forth
herein.
|
|
2.
|
Salary:
|
|
|
Ÿ
|
You
will be entitled to an annual salary of $250,000, payable in accordance
with ZBB’s normal salaried payroll practices; provided, however, that for
calendar year 2010, $62,500 of your annual salary shall be paid on the
date of your appointment and the balance of $187,500 shall be paid ratably
over the remainder of the year in accordance with ZBB’s normal payroll
practices. The Board of Directors will review, at least
annually, your overall compensation with a view to increasing it if, in
the sole judgment of the Board of Directors, the performance of ZBB or
your services merit such an
increase.
|
|
|
Ÿ
|
ZBB
shall be entitled to withhold from amounts to be paid to you hereunder any
federal, state, or local withholding or other taxes or charges which it is
required to withhold under applicable
law.
|
|
N93
W14475 Whittaker Way
|
PO
Box 2047
|
|
|
Menomonee
Falls WI 53051
|
Kardinya
WA 6163
|
|
|
Tel: (262)
253 9800 Fax: (262) 253 9822
|
240
Barrington Street
|
|
|
Email: hbrown@zbbenergy.com
|
Bibra
Lake WA 6163
|
|
|
Tel: (08)
9494 2055 Fax: (08) 9494 2066
|
||
|
|
Email: info@zbbenergy.com
|
www.zbbenergy.com
|
3.
|
Options:
|
|
|
Ÿ
|
Effective
as of the date of your appointment, you will receive two option
awards.
|
|
|
Ÿ
|
You
will be granted an option to purchase 400,000 shares with an exercise
price equal to the closing price of ZBB’s common stock on the NYSE Amex on
the date of your appointment.
|
|
|
o
|
Vesting
will be over 3 years with the first 1/3 vesting one year from the start of
your employment and the remaining 2/3 vesting in 24 equal monthly
installments as of the end of each calendar month beginning on January 31,
2011 and ending on December 31,
2012.
|
|
|
o
|
This
option will immediately vest upon a “Change of Control” of
ZBB. The definition of “Change of Control” is attached as an
exhibit to this letter.
|
|
|
o
|
The
option will not be exercisable as to any portion thereof after the fifth
anniversary of the date on which such portion
vests.
|
|
|
o
|
The
option will have such other terms and conditions specified in the form of
option agreement previously provided to
you.
|
|
|
Ÿ
|
You
will also be granted an option to purchase 100,000 shares with the same
exercise price specified above.
|
|
|
o
|
The
option will vest in two equal installments upon the Compensation
Committee’s confirmation that certain performance targets are met, which
confirmation will occur as soon as practicable after June 30, 2010 and
December 31, 2010.
|
|
|
o
|
The
option will not be exercisable as to any portion thereof after the fifth
anniversary of the date on which such portion
vests.
|
|
|
o
|
The
option will have such other terms and conditions specified in the form of
option agreement previously provided to
you.
|
|
4.
|
Commuting and Other
Expenses:
|
|
|
Ÿ
|
We
will reimburse your commuting expenses to and from ZBB’s corporate offices
in the following manner:
|
|
|
o
|
IRS
mileage reimbursement for miles that exceed 60 miles round trip to and
from your home to ZBB’s corporate
offices.
|
|
|
o
|
This
reimbursement will not exceed $10,000 per
year.
|
|
|
o
|
The
previous CEO returned a lease vehicle to ZBB which, if you deem
appropriate, may be used in lieu of the mileage reimbursement
above.
|
|
|
Ÿ
|
Expenses
for other company travel will be reimbursed in accord with ZBB’s travel
policy.
|
|
5.
|
Benefits:
|
|
|
Ÿ
|
During
the term of your employment by ZBB, ZBB will provide you with, and you
will be eligible for, all benefits of employment generally made available
to the senior executives of ZBB (collectively, the “Benefit Plans”),
subject to and on a basis consistent with the terms, conditions and
overall administration of such Benefit Plans. You will be considered for
participation in Benefit Plans which by the terms thereof are
discretionary in nature (such as stock option plans) on the same basis as
other executive personnel of ZBB of similar
rank. Notwithstanding the foregoing, you may elect either to
participate in ZBB’s health Benefit Plan or obtain other health
insurance. If you elect to obtain other health insurance, ZBB
will pay the monthly premiums for such insurance up to an amount equal to
$900 per month paid either directly by ZBB to the insurance provider, or
reimbursed to you on a monthly basis as soon as practicable following your
submission to ZBB of proof of payment of each monthly premium
payment. You will be solely responsible for the payment of
monthly premiums in excess of this amount. ZBB’s payment of
such premiums shall constitute an “accident or health plan” for the
purposes of Section 106 of the Internal Revenue Code of 1986, as
amended.
|
2
|
|
Ÿ
|
On
a pre-tax basis, ZBB will provide a policy or reimburse you for the
payment of premiums for a long-term disability insurance policy from an
insurance carrier mutually acceptable to ZBB and you, provided that the
annual premiums for such policy are not in excess of $7,000 per
year. To the extent ZBB reimburses you for the payment of
premiums, such premiums will be paid either directly by ZBB to the
insurance provider, or reimbursed to you as soon as practicable following
your submission to ZBB of proof of payment of each premium
payment. You will be solely responsible for the payment of
annual premiums in excess of this amount. ZBB’s payment of such
premiums shall constitute an “accident or health plan” for the purposes of
Section 106 of the Internal Revenue Code of 1986, as
amended.
|
|
|
Ÿ
|
We
also offer you four weeks of vacation per calendar
year.
|
|
6.
|
Benefits Upon
Termination:
|
|
|
Ÿ
|
Without
giving effect to the timing of the payment of your base salary for 2010 as
set forth in Section 2, above, you will be entitled to a severance payment
in an amount equal to six months of your annual base salary as then in
effect paid in accordance with ZBB’s normal salaried payroll practices as
then in effect in the event (a) ZBB terminates your employment for any
reason other than “Cause” or “Disability”, (b) you terminate your
employment with ZBB for “Good Reason”, or (c) you die. In the
event your employment with ZBB is terminated due to “Disability,” you will
be entitled to a severance payment in an amount equal to your base salary
as then in effect from the date of termination through the date on which
benefits under the long-term disability policy begin, but in no event
longer than 90 days, paid in accordance with ZBB’s normal salaried payroll
practices as then in effect. The definitions of “Cause”,
“Disability” and “Good Reason” are attached as an exhibit to this
letter. In each case, this severance benefit will be contingent
on your execution of a release in a form acceptable to ZBB which is not
withdrawn or otherwise revoked within the applicable statutory and/or
regulatory time periods or otherwise. You will also be entitled
to all accrued and unpaid benefits under any Benefit Plans in which you
participate through the date of
termination.
|
|
|
Ÿ
|
If
you terminate your employment with ZBB for “Good Reason”, and if you elect
to continue your health insurance coverage under the Consolidated Omnibus
Budget Reconciliation Act (“COBRA”) following such termination, then ZBB
shall pay your monthly premium under COBRA until the earlier of: (i)
the last day of the six month period following such termination or (ii)
the date on which you are offered or obtain health insurance coverage in
connection with new employment or self-employment. If you are
not eligible for COBRA coverage because you have waived health insurance
coverage, then, suject to the dollar limits above, ZBB shall pay your
monthly premium for long-term disability conversion coverage until the
earlier of: (i) the last day of the six month period following such
termination or (ii) the date on which you are offered or obtain long-term
disability insurance coverage in connection with new employment or
self-employment.
|
|
|
Ÿ
|
If
you terminate your employment with ZBB other than for “Good Reason” or ZBB
terminates your employment for “Cause”, you will be entitled to the
payment of any accrued but unpaid base salary through the date of
termination, plus all accrued and unpaid benefits under any Benefit Plans
in which you participate through the date of termination. In
either case, you will not be entitled to any severance payment and you
will not be entitled to the payment of the premiums specified
above.
|
|
|
Ÿ
|
As
a condition to your appointment, you will be required to enter into a
restrictive covenant agreement. If you breach the provisions of
the restrictive covenant agreement, then you shall forfeit any unpaid
severance payments and COBRA and long-term disability conversion coverage
premiums as of the time of ZBB’s determination of the breach, and you
shall repay to ZBB any severance payments and COBRA and long-term
disability conversion coverage premiums you have received as of the time
of ZBB’s determination of the breach as soon as practicable after ZBB
provides a written demand for payment to
you.
|
3
|
|
Ÿ
|
As
a condition to your appointment, you will be required to provide a
resignation from the Board of Directors in the form previously provided to
you.
|
|
|
Ÿ
|
You
hereby represent and warrant that you are not bound by any employment or
confidentiality agreement or other obligation or commitment, whether
contractual or otherwise, that would be inconsistent, or place you in a
position of conflict, with your position as President and CEO of ZBB or
this letter agreement.
|
|
|
Ÿ
|
As
a condition to your appointment, you will also be required to submit to a
formal background check and a drug test and the results must be
satisfactory to ZBB's Board of
Directors.
|
|
7.
|
Timing; Miscellaneous
Provisions:
|
|
|
Ÿ
|
The
date of your appointment as President and Chief Executive Officer of ZBB
will be January 7, 2010.
|
|
|
Ÿ
|
This
letter agreement shall be binding upon any successor (whether direct or
indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of ZBB’s business
and/or assets. For all purposes under this Agreement, the term
“ZBB” shall include any successor to ZBB’s business and/or assets which
becomes bound by this letter
agreement.
|
|
|
Ÿ
|
This
letter agreement and all of your rights hereunder shall inure to the
benefit of, and be enforceable by, your personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees.
|
|
|
Ÿ
|
Notices
and all other communications contemplated by this letter agreement shall
be in writing and shall be deemed to have been duly given when personally
delivered or when mailed by overnight courier or U.S. registered or
certified mail, return receipt requested and postage
prepaid. In the case of notices to you, notices shall be
addressed to you at the home address which you most recently communicated
to ZBB in writing. In the case of notices to ZBB, notices shall
be addressed to its corporate headquarters, and all notices shall be
directed to the attention of its
Secretary.
|
|
|
Ÿ
|
No
provision of this letter agreement shall be modified, waived or discharged
unless the modification, waiver or discharge is agreed to in writing and
signed by you and by an authorized officer of ZBB (other than
you). No waiver by either party of any breach of, or of
compliance with, any condition or provision of this letter agreement by
the other party shall be considered a waiver of any other condition or
provision or of the same condition or provision at another
time.
|
|
|
Ÿ
|
No
other agreements, representations or understandings (whether oral or
written and whether express or implied) which are not expressly set forth
or referenced in this letter agreement have been made or entered into by
either party with respect to the subject matter hereof. This
letter agreement and the other agreements, representations and
understandings expressly set forth or referenced herein contain the entire
understanding of the parties with respect to the subject matter
hereof.
|
|
|
Ÿ
|
Any
termination of this letter agreement shall not release either ZBB or you
from our respective obligations to the date of termination nor from the
provisions of this letter agreement which, by necessary or reasonable
implication, are intended to apply after termination of this letter
agreement.
|
|
|
Ÿ
|
The
validity, interpretation, construction and performance of this letter
agreement shall be governed by the laws of the State of Wisconsin (other
than provisions governing the choice of
law).
|
4
|
|
Ÿ
|
The
invalidity or unenforceability of any provision or provisions of this
letter agreement shall not affect the validity or enforceability of any
other provision hereof, which shall remain in full force and
effect.
|
|
|
Ÿ
|
This
letter agreement and all your rights and obligations hereunder are
personal to you and may not be transferred or assigned by you at any
time. ZBB may assign its rights under this letter agreement to
any entity that assumes ZBB’s obligations hereunder in connection with any
sale or transfer of all or a substantial portion of ZBB’s assets to such
entity.
|
|
|
Ÿ
|
This
letter agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same
instrument.
|
We feel
that this offer is exceptionally attractive and reflects the confidence we have
in your ability to guide the growth of ZBB and to achieve a significant
enhancement of shareholder value. We very much look forward to having
you join us as our President and Chief Executive Officer. If you
agree to the terms of this letter agreement, please execute the letter agreement
below.
|
With
warm regards,
|
|
|
ZBB
ENERGY CORPORATION
|
|
|
/S/Paul
Koeppe
|
|
|
Interim
Chief Executive Officer
|
|
|
Chairman,
Search Committee
|
Agreed
and accepted as of January 7, 2010.
|
|
|
/S/
Eric C. Apfelbach
|
5