EXHIBIT 10.1
EMPLOYMENT AGREEMENT WITH STEVEN A. HUNTINGTON
DATED APRIL 12, 2007
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 12TH day of April, 2007, by and
between Tower Tech Holdings, Inc., a Nevada corporation ("TOWER TECH") and
Steven A. Huntington, Chief Financial Officer ("CFO" or "Executive").
RECITALS
TOWER TECH is a Nevada corporation which operates a wind support
structure fabrication and production business in the City of Manitowoc,
Wisconsin.
The Employer desires to employ the Executive as the CFO of Employer,
the Executive desires to be employed in such position.
It is the desire of the parties to enter into an employment agreement
for the purpose of establishing the terms and conditions of the employment of
CFO by TOWER TECH.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties agree as follows:
I. EMPLOYMENT
1.1 OFFER AND ACCEPTANCE. TOWER TECH hereby offers to employ CFO
and CFO hereby accepts employment to serve as a CFO in the business operated by
TOWER TECH on an uninterrupted basis unless and until terminated as provided
herein, subject to and in accordance with the terms and conditions set forth in
this Agreement.
1.2 CFO'S DUTIES. TOWER TECH hereby employs the CFO as set forth
above in such other senior executive capacity or capacities as shall be mutually
agreed between the Employer and the Executive. During the period of the
Executive's employment hereunder, the Executive shall devote his best efforts
and full business time, energy, skills and attention to TOWER TECH and any
direct or indirect subsidiaries of TOWER TECH (together with TOWER TECH, the
"SUBSIDIARIES" or a "SUBSIDIARY"). The CFO's duties and authority shall consist
of and include all duties and authority customarily performed and held by
persons holding equivalent positions with business organizations similar to
nature and size of Employer, as such duties and authority are reasonably
defined, modified and delegated from time to time by the Board of Directors of
TOWER TECH to which the CFO shall report during the term of this Agreement (the
"BOARD"). The Executive shall have the powers necessary to perform the duties
assigned to him and shall be provided such supporting services, staff,
secretarial and other assistance, office space and accoutrements as shall be
reasonably necessary and appropriate in the light of such assigned duties.
1.3 CFO TO DEVOTE FULL-TIME AND BEST EFFORTS. CFO shall devote
his time, attention, effort, skill and energies to the performance of the duties
hereunder on a full-time and exclusive basis. It is the policy of TOWER TECH
that any employee of TOWER TECH
1 of 7
shall not engage in any outside activity which TOWER TECH determines reflects
negatively on TOWER TECH or creates an appearance of a conflict of interest,
without TOWER TECH's prior written consent. The CFO acknowledges and agrees to
comply with this policy.
1.4 CONDUCT. CFO shall exercise his own professional judgment in
dispensing his duties provided, however, that TOWER TECH's Officers and/or Board
of Directors may recommend, review, amend and revise existing policies and
procedures or create new policies and procedures for TOWER TECH personnel from
time to time as they deem necessary.
II. TERM
2.1 The term of this Agreement shall commence on or about April
23, 2007. The length of said term shall terminate on or about April 23, 2009
subject to the provisions contained in Section VI hereof. In order for the CFO's
term to commence April 23, 2007, CFO shall first comply with the provisions
contained in Section III.
III. REQUIREMENTS
3.1 RESIDENCE REQUIREMENT. As an express condition of
employment, CFO shall be a resident of Manitowoc, Wisconsin.
3.2 CFO REQUIREMENTS. Left blank to fill in with additional
requirements for CFO to fulfill.
3.3 LICENSURE/BACKGROUND. As an express condition of employment,
as and to the extent required by TOWER TECH and the State of Wisconsin, CFO
shall meet all current and future requirements of TOWER TECH and the State of
Wisconsin for the position, submit education records as may be requested by
TOWER TECH, participant in or furnish results of a physical and/or psychological
examination/evaluation, drug and/or alcohol testing as requested by TOWER TECH;
cooperate with any person or entity performing a background check on CFO; or any
other requirements as reasonably requested by TOWER TECH.
IV. COMPENSATION
4.1 COMPENSATION. For all services rendered by CFO pursuant to
this Agreement, TOWER TECH shall pay CFO a base salary of One Hundred Thirty
Thousand and 00/100's Dollars ($130,000.00) per year for one (1) year. TOWER
TECH will pay supplemental and bonus compensation to the CFO as the parties may
mutually agree and as may be commensurate with industry standards, including
stock options, stock bonus plans and the like as may be offered by the company
to its executives from time to time. For the second year of this Agreement, CFO
will receive a base salary as agreed by the parties but not less than One
Hundred Thirty Thousand and 00/100's Dollars per year with the aforementioned
bonus and supplemental compensation as mutually agreed.
2 of 7
4.2 PROFESSIONAL DEVELOPMENT. TOWER TECH will provide CFO funds
for professional development during the term of this agreement. The availability
and use of said funds shall be upon request of CFO and approved at the sole
discretion of the members and/or Board of Directors.
4.3 BENEFITS. CFO is entitled to receive benefits as follows:
4.3.1 Health insurance and associated benefits as offered
by the company;
4.3.2 Vacation and personal leave time as may be mutually
agreed and as is commensurate with industry standards in
addition to the standard vacation days given to all other
employees of Tower Tech.
4.4 REIMBURSEMENT OF EXPENSES. The CFO shall be reimbursed,
upon submission of appropriate vouchers and supporting documentation, for all
travel, entertainment and other out-of-pocket expenses reasonably and
necessarily incurred by the CFO in the performance of his duties hereunder and
shall be entitled to attend seminars, conferences and meetings relating to the
business of TOWER TECH consistent with TOWER TECH's established policies in that
regard.
4.5 VACATIONS. The CFO shall be entitled to annual paid time
off ("PTO") which shall accrue each calendar year and which shall be taken at a
time or times mutually agreeable to by TOWER TECH and the Executive; provided,
however, that the CFO shall be entitled to four weeks (20) PTO days annually.
4.6 RELOCATION AND TEMPORARY HOUSING. In connection with the
CFO's relocation to the Manitowoc area, TOWER TECH will advance and/or reimburse
the CFO for actual household packing, moving, storage, related insurance and
other costs of the move (including the sales commission cost incurred in the
sale of his current residence), up to TWENTY THOUSAND AND 00/100'S DOLLARS
($20,000.00) plus an amount equal to the federal income tax applicable, if any,
to the amount of such reimbursement (at an assumed tax rate of 35%), provided
that (i) such relocation occurs not later than the sixth (6th) month anniversary
of the Effective Date; and (ii) the aggregate of the amounts to be reimbursed
and the tax-related payment with respect thereto shall not exceed TWENTY-FIVE
THOUSAND AND 00/100'S DOLLARS ($25,000.00), except to the extent a greater
amount may be approved by TOWER TECH. However, should CFO terminate this
Agreement for any reasons other than death or continuous permanent disability of
the CFO prior to the term of this Agreement, then all sums paid to CFO under
this paragraph shall be repaid to TOWER TECH within thirty (30) days thereof.
Payment shall be amortized over the term of this Agreement and repaid
proportionately based on the number of months remaining under the Agreement.
V. OBLIGATIONS OF CFO
5.1 STANDARD OF PERFORMANCE. CFO shall provide the services
specified in
3 of 7
Article I of this Agreement within the limits of his training and
experience. CFO shall follow all procedures outlined in TOWER TECH EMPLOYEES
MANUAL as amended by TOWER TECH from time to time, as well as his Job
Description.
5.2 CFO CONDUCT. CFO shall at all times during his employment by
TOWER TECH: (1) comply with all TOWER TECH employment policies applicable to
CFO; (2) comply with all reasonable directions and orders of TOWER TECH; and (3)
not use or disclose, except at TOWER TECH's direction, any confidential
information relating to TOWER TECH or any Subsidiaries of TOWER TECH, except
that information that may be disclosed in accord with the provisions of the
Wisconsin Statutes and Section 5.4 of this Agreement.
5.3 CONFIDENTIALITY. CFO acknowledges that in the course of his
employment with TOWER TECH, CFO will regularly receive and assist in compiling
valuable confidential information about TOWER TECH programs, financial and
business practices, projections and plans ("Confidential Information"). CFO
recognizes that all such Confidential Information is the property of TOWER TECH,
and that during his employment and for two (2) years after the termination of
his employment, or for so long as the Confidential Information does not become
public knowledge through no fault of CFO, whichever is shorter, CFO will not
use, disclose, produce, or convey any Confidential Information under
circumstances that could foreseeably result in use of the Confidential
Information in competition with TOWER TECH. This provision does not restrict
CFO's use of Confidential Information for the purpose of fulfilling CFO's
obligations under this Agreement or as otherwise directed by TOWER TECH. CFO
shall not have any rights to such Confidential Information or to copies hereof
except as may be required by law or by contract.
5.4 RECORDS. CFO shall prepare all records in accordance with
TOWER TECH procedures as amended from time to time. All TOWER TECH records are
confidential and may not be disclosed by CFO without the appropriate written
authorization by TOWER TECH.
VI. TERMINATION
6.1 TERMINATION. This Agreement may terminate at the option of
TOWER TECH if any of the following events occur:
6.1.1 By TOWER TECH or with TOWER TECH's consent by a
majority vote of the members of TOWER TECH's or their Board of Directors,
without cause, if it shall provide written notice to CFO at least thirty (30)
days prior to the date of termination.
6.1.2 At any time upon the mutual written agreement of the
parties.
6.1.3 By either party, upon the material breach or
violation of the terms of this Agreement by the other party, provided the
breaching party has been given written notice specifying the nature of the
breach or violation and a period of thirty (30) days in which to cure such
breach or violation, except that TOWER TECH may immediately terminate CFO
(and/or exercise its rights under Section 6.1.1 hereof):
4 of 7
(a) Reserved;
(b) Except as permitted by law, if it is concluded that
CFO has made any false and derogatory statements about or concerning TOWER TECH
or any of their members of the board of directors;
(c) Upon a finding by a court of law or the TOWER TECH
Board of Directors or members that CFO is guilty of fraud, dishonesty or other
acts of misconduct in the rendering of services for TOWER TECH; or
6.1.4 Upon the death or permanent total disability of CFO.
6.1.5 CFO shall not be entitled to payment for unused
vacation time or sick leave in the event of termination.
6.2 PREMATURE TERMINATION. This Agreement may be terminated for
Cause as hereinafter defined. "CAUSE" shall mean:
6.2.1 The Executive's death;
6.2.2 The Executive's Permanent Disability, which shall
mean the Executive's inability, as a result of physical or mental
incapacity, substantially to perform his duties hereunder for a
period of six (6) consecutive months, with the determination of
the Executive's Permanent Disability to be determined by a
physician chosen by two other physicians, each of which is
selected by the Employer and the Executive, respectively;
6.2.3 The willful and continued failure by the Executive to
perform substantially the Executive's duties (other than any such
failure resulting from the Executive's incapacity due to physical
or mental illness or any such failure subsequent to the delivery
to the Executive of a notice of intent to terminate the
Executive's employment without Cause or subsequent to the
Executive's delivery of the notice of the Executive's intent to
terminate employment for Constructive Discharge), and such willful
and continued failure continues after a demand for substantial
performance is delivered to the Executive that specifically
identifies the manner in which the Executive has not substantially
performed the Executive's duties.
VII. RESTRICTIVE COVENANT
7.1 COVENANT NOT TO COMPETE AND NOT TO SOLICIT. CFO recognizes
that TOWER TECH has and is investing much time, effort and funds in helping CFO
develop certain management and training programs as well as the growth and
development of the business and that TOWER TECH would incur significant damage
if CFO were allowed to compete with TOWER TECH after receiving such assistance
and before TOWER TECH has a reasonable opportunity to recruit another CFO to
develop a similar management and growth models and
5 of 7
methods. Therefore, CFO agrees that upon termination of his employment with
TOWER TECH for any reason, and for a period of one (1) year thereafter, he shall
not:
(a) Own, operate, finance, control consult or advise
participate in the ownership, management or control of , work for or acquire any
securities of any entity, firm, business, activity or enterprise which is
engaged in the business of fabricating or producing wind energy support
structures, both for himself and/or others, located anywhere within United
States for one (1) year.
(b) Solicit customers or clients within the United States,
regardless of the location from which the CFO is soliciting, during such one (1)
year period.
(c) Solicit or seek to cause any employee of TOWER TECH or
any of its subsidiaries or affiliates, independent contractor contracted with
TOWER TECH or such subsidiaries or affiliates, as CFO or CFO's assistant or
otherwise modify his or his employment or contractual relationship with the
TOWER TECH or such subsidiary or affiliate for the purpose of entering into an
employment, contractual or other relationship with CFO or any entity, firm,
business, activity or enterprise with which CFO is directly or indirectly
affiliated.
7.2 In the event TOWER TECH is forced to employ legal counsel
to enforce the obligations imposed on CFO under Section 7 in any court of law,
CFO shall reimburse and indemnify TOWER TECH for the actual costs incurred by
TOWER TECH in said enforcement, including but not limited to attorneys fees at
the actual hourly rate customarily charged by TOWER TECH's counsel for the time
reasonably spent in enforcement activity.
7.3 REMEDIES FOR BREACH OF RESTRICTIVE COVENANT. The Executive
acknowledges that the restrictions contained in Section 7 of this Agreement are
reasonable and necessary for the protection of the legitimate business interests
of the Employer, that any violation of these restrictions would cause
substantial injury to the Employer and such interests, that the Employer would
not have entered into this Agreement with the Executive without receiving the
additional consideration offered by the Executive in binding himself to these
restrictions and that such restrictions were a material inducement to the
Employer to enter into this Agreement. In the event of any violation or
threatened violation of these restrictions, the Employer, in addition to and not
in limitation of, any other rights, remedies or damages available to the
Employer under this Agreement or otherwise at law or in equity, shall be
entitled to preliminary and permanent injunctive relief to prevent or restrain
any such violation by the Executive and any and all persons directly or
indirectly acting for or with him, as the case may be.
VIII. MISCELLANEOUS
8.1 ENTIRE AGREEMENT. This Agreement supersedes all prior
agreements between or affecting CFO and CFO's relationship with TOWER TECH.
Anything not set forth herein or specifically referenced herein shall have no
force or effect.
8.2 WRITTEN SIGNED AGREEMENT. Presentation of this Agreement
to CFO
6 of 7
does not constitute an offer or commitment. There is only a commitment for
employment if and when a written employment agreement is signed by TOWER TECH
and CFO. CFO acknowledges there is no basis to rely on oral statements or an
unsigned draft of a written document. CFO recognizes and agrees all agreements
concerning employment of CFO by TOWER TECH are in writing, signed by the
parties. This Agreement may only be amended in writing and in a document signed
by both parties.
8.3 VENUE. Any controversy arising under, or relating to any
matter under Section 7 shall be determined by the Wisconsin Circuit Court for
Manitowoc County, or in the event of an appeal, or petition for review by
certiorari, by such court having jurisdiction to review the decisions of the
Wisconsin Circuit for Manitowoc County, and the parties agree not to present any
such controversy to any other court or forum, or in any other venue. The parties
consent to the jurisdiction of the Wisconsin Circuit Court for Manitowoc County,
to the fullest extent permitted by law, CFO agrees to a trail by the court (with
a judge as finder of fact) with respect to any dispute involving this Agreement.
IN WITNESS WHEREOF, the Employment Agreement, consisting of seven (7)
typewritten pages, has been executed by the parties as of the date first above
recorded.
CHIEF FINANCIAL OFFICER (CFO)
/s/ STEVEN A. HUNTINGTON
----------------------------------------
STEVEN A. HUNTINGTON
TOWER TECH HOLDINGS, INC.
/s/ RAYMOND L. BRICKNER, III
----------------------------------------
RAYMOND L. BRICKNER, III
ITS: PRESIDENT
DRAFTED BY:
Attorney Terence P. Fox
Kummer, Lambert & Fox, LLP
927-A South Eighth Street
Manitowoc, WI 54221-1180
(920) 683-5499
7 of 7