Attached files
| file | filename |
|---|---|
| 8-K - EnSync, Inc. | v204415_8-k.htm |
December
1, 2010
Will
Hogoboom
2701 Van
Hise Avenue
Madison,
WI 53705
Dear
Will:
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1.
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Services.
ZBB Energy Corporation, a Wisconsin corporation (the "Company"),
wishes to formalize the change in your services as an independent
contractor, commencing December 1, 2010 (your "Start
Date"). You will provide services to the Company in the capacity of
Interim CFO. You will report to Eric Apfelbach, CEO. This letter will
constitute an agreement between you and the Company and contains all the
terms and conditions relating to the services you are to provide (the
"Agreement").
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2.
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Compensation. As
consideration for your services and other obligations, you will be paid a
rate of $7,885 bi-weekly for assuming the full time role. The
fees will be prorated for the first and final fee period based on the
number of days in such period.
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3.
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Stock Option.
You will be granted an option to purchase 50,000 shares (subject to the
terms of the 2010 Omnibus Incentive Plan) with an exercise price equal to
the closing price of ZBB’s common stock on the NYSE Amex on the date of
your appointment. These options will vest in equal monthly increments over
a three year period beginning on your grant
date.
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4.
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Expenses.
You will be reimbursed for reasonable travel and other out-of-pocket
expenses incurred by you at the request of the Company in connection with
your services under this Agreement; provided that you supply the Company
with receipts for such expenses and obtain prior approval of the Company
for any expenses. In addition, the Company will reimburse you for up to
two Continuing Education sessions per year that are directly related to
your service as CFO and your status as a
CPA.
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5.
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Description of
Work. You will provide services consistent with those of a
Chief Financial Officer and Controller, including but not limited to SEC
reporting, financial statement preparation and review, financial analysis
and reporting, cash management, presentation to the Board of Directors,
special analyses and project work as
required.
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6.
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Consultant.
Nothing in this Agreement shall in any way be construed to constitute you
as an employee of the Company. You will have no authority to enter into
contracts which bind the Company or create obligations on the part of the
Company without the express prior authorization of the Company. Instead,
your relationship with the Company will be that of an independent
contractor performing the services described above. The Company will not
make deductions from payments made to you for taxes. You acknowledge and
agree that you are obligated to report as income all consideration that
you receive under this Agreement, and you acknowledge and agree to pay all
self-employment and other taxes thereon. You acknowledge that as an
independent contractor, you will not be eligible for any paid time off.
You further agree to indemnify the Company and hold it harmless to the
extent of any obligation imposed on the Company (i) to pay withholding
taxes or similar items or (ii) resulting from your being determined not to
be an independent contractor.
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7.
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Indemnification. The
Company shall indemnify you in your capacity as the contract Chief
Financial Officer of the Company to the same extent to which you would be
entitled under the By-Laws of the Company as if you were an Officer and/or
Employee (as such terms are defined in the By-Laws) of the
Company.
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8.
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D&O
Insurance. To the extent the Company has directors' and
officers' liability insurance ("including entity coverage") and/or errors
and omissions liability insurance in effect, the Company will provide such
insurance coverage for you, including tail
coverage.
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9.
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Confidentiality.
Prior to commencing performance of the services defined above, you will
execute and deliver to the Company the Confidential Information and
Intellectual Property Assignment Agreement attached hereto as Exhibit A.
Furthermore the existence of this Consulting Agreement is also
considered confidential and is not to be disclosed to any third
party.
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10.
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Conflicting
Agreements. You represent that your performance of all the
terms of this Agreement and the Confidential Information and Intellectual
Property Assignment Agreement does not and will not breach any agreement
to keep in confidence proprietary information, knowledge or data acquired
by you in confidence or in trust prior to this Agreement with the Company,
and you will not disclose to the Company, or induce the Company to use,
any confidential or proprietary information or material belonging to any
previous Company or others. You agree not to enter into any agreement
either written or oral in conflict with the provisions of this
Agreement.
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11.
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Non-compete.
You agree that for the duration of this Agreement, you will not engage in
any activity with any organization that produces products, technology or
services that may be construed by a reasonable party to be in competition
with those products, technology or services produced by ZBB Energy
Corporation.
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12.
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Delegation and
Assignment Prohibited. You may not delegate any duties or
assign any rights under this Agreement without the express prior written
consent of the Company.
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13.
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Termination. This
agreement can be terminated with 60 day written notice by either party. In
the case of Company termination, the first 30 days will consist of
transition work, and the remaining 30 day period will be
severance.
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14.
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Amendment. This
agreement may be amended at anytime in writing signed by you and the
Company.
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-2-
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15.
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Notices.
All notices, requests and other communications called for by this
Agreement will be deemed to have been given if made in writing and mailed,
postage prepaid, if to you at the address set forth above and if to the
Company at N93 W14475 Whittaker Way, Menomonee Falls, WI, or other
addresses as either party specifies to the
other.
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16.
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Governing
Law. The validity, performance and construction of this
Agreement will be governed by the laws of the State of
Wisconsin.
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17.
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Entire
Agreement. This Agreement is the entire agreement and
supersedes any prior consulting or other agreements between you and the
Company with respect to the subject matter
hereof.
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18.
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Approvals.
You represent that you have received all consents and approvals of third
parties, required as a condition to the execution of this Agreement or the
performance of the services prescribed
herein.
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Signature
Page Follows
AGREED
and APPROVED:
ZBB
Energy Corporation
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By:
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/s/ Eric Apfelbach
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Eric
Apfelbach, CEO
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December
1, 2010
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AGREED
AND ACCEPTED:
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By:
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/s/ Will Hogoboom
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Will
Hogoboom, CPA
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December
1, 2010
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EXHIBIT A
CONFIDENTIAL
INFORMATION AND
INTELLECTUAL
PROPERTY ASSIGNMENT AGREEMENT
[use
standard company agreement]