DON ROGERS EMPLOYMENT AGREEMENT
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▇▇▇▇▇▇ EMPLOYMENT AGREEMENT
This
Employment Agreement ("Agreement") is made by and between Barnabus Energy,
Inc.
dba Open Energy Corporation (the "Company") and ▇▇▇ ▇▇▇▇▇▇ ("Employee")
(individually, a "party" and together, the "parties"). This Agreement shall
be
effective once signed by all parties. In consideration of the Employee’s
employment (or continued employment, as the case may be), as well as the payment
by the Company to the Employee, of the sum of One (1) Dollar, the receipt and
sufficiency which is hereby acknowledged, and the consideration set out herein,
the Employee agrees to the following terms of employment:
1. Position.
Employee will be Executive Vice President and will report directly to ▇▇▇▇
▇▇▇▇,
President of East Coast Operations. Employee shall have such executive
responsibilities to and shall perform such executive services for the
Corporation as may be consistent with his title. Employee's precise
responsibilities and job description are subject to change at any time in the
sole and absolute discretion of Company. Employee shall devote full time and
attention to the business of the Company during the term of this Agreement
and
shall perform all duties as may be required of Employee.
2. Term.
The initial term of this Agreement will begin on April 1, 2006 and shall
terminate on March 31, 2007, unless sooner terminated (“Initial Term”). If
employment continues beyond the Initial Term, Employee will be employed on
an
indefinite basis.
3. Compensation.
Employee's compensation shall consist of an annual salary, discretionary
bonuses, standard employee benefits, and stock options as described in Exhibit
A.
3.1.1 Base
Salary.
The
Company shall pay to Employee a base salary of CDN $150,000
per annum, which may be increased from time to time in such amounts as are
determined by the Board of Directors of the Corporation. The term “Base Salary”
shall refer to the Base Salary as so increased. The Base Salary will be payable
in installments monthly. The Base Salary and all other remuneration paid to
the
Executive shall be subject to applicable employment and income tax withholding
taxes.
3.1.2 Bonuses.
The
Company may, in its sole, absolute and unfettered discretion, pay Employee
a
bonus payment as may be determined by the Board of Directors. The fact and
the
amount of the bonus will be in the Company's sole, absolute and unfettered
discretion and based upon the Company's performance as well as whether Employee
meets performance objectives as defined at the beginning of each year. The
Employee must be actively employed in order to be considered for a bonus, and
there is no entitlement to a bonus, subsequent the Employee’s termination,
whether such termination is lawful or unlawful.
3.1.3 Stock
Options.
The
Company hereby agrees to provide the Employee 150,000 stock options (the "Stock
Options") with an exercise price of $1.50 per share, which options shall vest
quarterly in accordance with Exhibit A. Subject to the provisions of Exhibit
A,
Employee shall have no right to any unvested Stock Options should Employee's
employment terminate before all the Stock Options are vested. The Employee
must
be actively employed in order for the Stock Options to vest, and there is no
entitlement to Stock Options, subsequent to the Employee’s termination, whether
such termination is lawful or unlawful.
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3.1.4 Benefits.
Employee shall be eligible to participate in the standard fringe benefits
package and incentive compensation plans generally made available to the
executive management employees of the Company, as such benefits may be
determined, changed, or rescinded from time to time by the Company's Board
of
Directors.
3.1.5 Expenses.
The
Company shall reimburse Employee for any and all expenses reasonably incurred
by
the Employee in the course and scope of Employee's duties and which are
substantiated in accordance with Company's reasonable policies and
procedures.
4. Termination.
4.1 By
the
Company for Just Cause.
4.1.1 Definition
of for Just Cause.
Company
may terminate Employee's employment immediately at any time for just cause.
In
this Agreement, the term "just cause" means: (A) the commission of an act or
omission which would constitute a felony; (B) negligence or malfeasance; (C)
breach of fiduciary duties to Company, (D) gross neglect of duties or (E) any
action or omission which significantly adversely affects the Company's business
or financial condition.
4.1.2 Effect
of Termination for Just Cause.
If
Employee is terminated for just cause, this Agreement shall immediately and
without notice terminate on the date of termination of employment and Employee
shall be entitled to receive only the Base Salary then in effect, through the
date of termination. All other obligations to Employee pursuant to this
Agreement will become automatically terminated and completely extinguished.
Any
failure of the Company to exercise its right to terminate the employment of
Employee as a result of the existence of any just cause shall not constitute
or
be construed as a waiver of its right to terminate such employment and this
Agreement for such just cause or for another just cause.
4.2 Death
or Disability of Employee.
This Agreement shall terminate automatically in the event of the death or
Disability of Employee. In the event of Employee's death, Employee (or
Employee's heirs) shall be entitled to receive only the Base Salary then in
effect through the date of termination and stock options pursuant to the Stock
Option Grant Vesting Provisions of Exhibit A, attached hereto. All other
Company obligations to Employee pursuant to this Agreement will become
automatically terminated and completely extinguished. In the event
of Employee's disability, Employee shall be entitled to receive only the Base
Salary then in effect through the date of termination. All other Company
obligations to Employee pursuant to this Agreement will become automatically
terminated and completely extinguished. As used herein, the term
"Disability" shall mean Employee's inability to perform the essential functions
of the position, with or without reasonable accommodation, as a result of a
mental or physical disability or where the reasonable accommodation would result
in undue hardship to the Company. In the event of a Disability, the
termination date will be the date on which the Board of Directors makes such
a
determination.
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4.3
Termination
Without Just Cause.
The
Company will not terminate Employee other than for just cause during the Initial
Term. After the Initial Term, the Company may in its sole and absolute
discretion terminate Employee's employment without cause at any time,
immediately upon delivery of written notice to the Employee.
4.3.1
If the Company terminates Employee's employment without just cause after the
Initial Term, the Company agrees to pay Employee an amount equal to the greater
of:
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(i)
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five
(5) months Base Salary on the regularly scheduled pay periods following
the date of termination or,
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(ii)
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the
minimum entitlement to notice (or pay in lieu thereof), and/or severance
pay, which is required pursuant to the Employment
Standards legislation
of the jurisdiction in which the Employee is employed.
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Further,
if the Company terminates Employee after the Initial Term, all or any other
entitlement to additional salary, bonus, stock options, and/or benefits of
any
kind, shall cease immediately upon the date of Termination.
4.4
Employee’s
Right to Terminate.
Employee may terminate this Agreement upon 60 days written notice by Employee
to
the Company. Upon receiving notice of termination, the Company may elect to
accelerate the effective date of termination, provided that Employee shall
be
paid the base salary through the end of such sixty (60) day notice period or
the
end of the term of this Agreement, whichever comes first.
5. Nondisclosure
of Confidential Information.
The
protection of confidential information is essential to the Company. To protect
such information, Employee shall not, during the term of this Agreement or
at
any time thereafter, impart to anyone or use any confidential information or
trade secrets Employee may acquire in the performance of Employee's duties,
except as required by law.
6. No
Solicitation. Employee agrees that during Employee's employment and for a
one year period after the termination of said employment, Employee will not
directly or indirectly solicit for hire any current employees of the
Company.
7. Assignment
of Inventions. Employee
agrees that all inventions that (a) are developed using equipment, supplies,
facilities or trade secrets of the Company, (b) result from work performed
by
Employee for the Company, or (c) relate to the Company's business or current
or
anticipated research and development as of the inception of Solar Roofing
Systems Inc. in March of 2003 (collectively “Inventions”), will be the sole and
exclusive property of the Company and are hereby irrevocably assigned by
Employee to the Company.
8. Assignment
of Other Rights. In addition to the foregoing assignment of Inventions to
the Company, Employee hereby irrevocably transfers and assigns to the Company:
(a) all worldwide patents, patent applications, copyrights, mask works, trade
secrets and other intellectual property rights in any Invention; and (b) any
and
all "Moral Rights" (as defined below) that Employee may have in or with respect
to any Invention. Employee also hereby forever waives and agrees never to assert
any and all Moral Rights Employee may have in or with respect to any Invention,
even after termination of employment behalf of the Company. "Moral Rights"
mean
any rights to claim authorship of an invention to object to or prevent the
modification of any Invention, or to withdraw from circulation or control the
publication or distribution of any Invention, and any similar right, existing
under judicial or statutory law of any country in the world, or under any
treaty, regardless of whether or not such right is denominated or generally
referred to as a "moral right."
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9. Work
for Hire. Employee acknowledges and agrees that any copyrightable works
prepared by Employee within the scope of employment are "works for hire" under
the Copyright Act and that the Company will be considered the author and owner
of such copyrightable works.
10. Human
Resources Policy and Procedures. Employee agrees to review and abide by
reasonable personnel policies as well as any Employee Handbook issued by
Company. Employee understands that Company has the right to modify or rescind
any policies and procedures for any reason and without notice, except the policy
regarding at-will employment.
11. General
Provisions.
11.1 Governing
Law and Forum.
This
Agreement shall be governed in accordance with the laws of the Province of
Ontario. Any disputes arising out of Employee's employment or this Agreement
shall be brought in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
11.2 Severability.
If any
provision in this Agreement is held by a court of competent jurisdiction to
be
invalid, void or unenforceable, the remaining provisions shall nevertheless
continue in full force without being impaired or invalidated in any
way.
11.3 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original and such counterparts shall together
constitute one and the same Agreement.
11.4 Entire
Agreement.
This
Agreement contains all of the terms agreed upon by the parties with respect
to
the subject matter of this Agreement, and supersedes any and all prior
agreements, arrangements, communications, understandings, documents or rules,
either oral or in writing, between the parties for the employment of Employee,
and contain all of the covenants and agreements between the parties for such
employment in any manner whatsoever. Each party to this Agreement acknowledges
that no representations, inducements, promises or agreements, orally or
otherwise, have been made by any party or anyone acting on behalf of any party
which are not embodied in this Agreement. Any modification of this Agreement
will be effective only if in writing signed by Employee and Company's
President.
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BARNABUS
ENERGY, INC.
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| Date: April 4, 2006 | By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,Chief Executive Officer |
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| Date: April 4, 2006 | /s/ ▇▇▇ ▇▇▇▇▇▇ | |
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▇▇▇ ▇▇▇▇▇▇, Executive Vice President |
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Exhibit
A
Stock
Option Grant Vesting Provisions
Provided
that the Agreement has not earlier been terminated, on each December 31, March
31, June 30 and September 30 commencing June 30, 2006 and ending on March 31,
2009, all the Stock Options that remain unvested shall vest as set forth in
the
following table:
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Date
of
Vesting
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Stock
Options
Vesting
on
Date
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Aggregate
Options
Vested
Through
Date
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Options
Remaining
Unvested
|
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150,000
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30-Jun-06
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12,500
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12,500
|
137,500
|
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30-Sep-06
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12,500
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25,000
|
125,000
|
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31-Dec-06
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12,500
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37,500
|
112,500
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31-Mar-07
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12,500
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50,000
|
100,000
|
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30-Jun-07
|
12,500
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62,500
|
87,500
|
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30-Sep-07
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12,500
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75,000
|
75,000
|
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31-Dec-07
|
12,500
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87,500
|
62,500
|
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31-Mar-08
|
12,500
|
100,000
|
50,000
|
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30-Jun-08
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12,500
|
112,500
|
37,500
|
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30-Sep-08
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12,500
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125,000
|
25,000
|
|
31-Dec-08
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12,500
|
137,500
|
12,500
|
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31-Mar-09
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12,500
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150,000
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0
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In
addition to the foregoing vesting milestones, all Stock Options immediately
vest
upon a termination of this Agreement due to the death or Disability of the
Employee in accordance with Section 4.2 of the Agreement.
All
Stock
Option amounts in this Exhibit A shall be adjusted for increases in authorized
shares, stock splits, consolidations, reorganizations and similar transactions.
All section references herein are to sections of the Agreement of which this
Exhibit is a part.