Exhibit 10.1


 


EMPLOYMENT AGREEMENT


 


This Employment Agreement (“Agreement”) is made
effective as of November 1, 2007 by and between Open Energy Corporation (the “Company”)
and Christopher Gopal (“Gopal” or “Employee”) (individually, a “party” and
together, the “parties”).


 


NOW, THEREFORE, in consideration of the mutual
promises set forth herein, the parties agree as follows:


 


Position
and Responsibilities.


 


1.             Employment. Employee will begin
employment with the Company on November 1, 2007, as Executive Vice President,
World Wide Operations. Employee reports directly to the President and COO of
the Company. Employee shall have the powers and duties commensurate with such
position. Employee’s precise responsibilities and job description are subject
to change at any time in the sole and absolute discretion of the Company.


 


2.             Outside Activities. Employee
shall devote his best efforts and substantially all of his business time and
attention to the business of the Company and performance of the services
customarily incident to such office and to such other services as the CEO or
board of directors my reasonably request. During his employment, Employee shall not, without Employer’s prior written
consent, render to others services of any kind for compensation, or engage in
any other business activity that would materially interfere with the
performance of his duties under this Agreement. However,
subject to Employer’s approval, Employee will be permitted to serve on a
maximum of two Boards of Directors, with their attendant duties and
compensation; these Directorships have not been identified or determined as of
this date.


 


3.             At Will Employment. Employee
will be employed on an at-will basis. Either Employee or Company may terminate
the Employment at any time, with or without cause. The Company also retains the
right to transfer, demote, suspend or administer discipline with or without
cause and with or without notice, at any time. The at-will nature of the
employment relationship may only be modified in a writing signed by Employee
and the Company’s CEO. Notwithstanding the foregoing, if Employee is terminated
without cause, he shall receive twelve months continuation of salary and
benefits.


 


Compensation


 


4.             Base Annual Salary. The
Company shall pay to Employee an initial base salary at an annual rate of two
hundred thousand dollars ($200,000) in accordance with the Company’s customary
payroll practices.


 


5.             Bonuses. Employee will be
entitled to participate in a fiscal 2007-08 Incentive plan to be designed and
approved by the Compensation Committee of the Board of Directors. In the absence
of a fiscal 2007-08 Incentive Plan, the Company and Employee will define a
fiscal 2008 performance target to be mutually agreed by December 31, 2007. The
amount of the bonus will be based on the attainment of a fiscal 2007-08
performance target and based on the performance of the Company and the
Employee. Additionally the Employee will be entitled to participate in future
fiscal year incentive plans with performance conditions to be agreed.


 


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6.             Equity Compensation. The
Company shall grant an initial 1,200,000 options under the terms of the 2006
Equity Compensation Plan which shall vest 180,000 on November 1, 2007 and 85,000
at the end of each calendar quarter for twelve quarters beginning December 31,
2007 and ending September 30, 2010. On October 1, 2008, provided that Employee is
actively employed under this Agreement and his employment has not been
terminated prior to that date, the Company shall grant additional equity
compensation to Employee under the terms of the 2006 Equity Compensation Plan
or any comparable equity compensation plan which may then be in effect which
shall provide the benefit of the equivalent of 1,800,000 shares of the Company’s
common stock as of the date of this Agreement, vesting one twelfth at the end
of each calendar quarter for twelve quarters beginning December 31, 2008 and
ending September 30, 2011.


 


7.             Withholdings. All
compensation and benefits to Employee hereunder shall be subject to all
federal, state, local and other withholdings and similar taxes and payments
required by applicable law.


 


Expense
Allowances and Fringe Benefits.


 


8.             Fringe Benefits. During his
employment, Employee shall be eligible to receive and participate in all
standard fringe benefits generally made available to other executive employees
when and as he becomes eligible for them, as such benefits may be determined,
changed, or rescinded from time to time by the Company


 


9.             Vacation Accrual. Employee
shall be eligible to accrue paid vacation each year from the date of employment
in accordance with the Company policy. The vacation accrual will initially be
at the rate of four weeks per annum and be subject to a maximum accrual, or
cap, of five (5) weeks.


 


10.           Expense Reimbursement. 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. Air
travel to other countries shall be business class.


 


11.           IRC Section 409A. To the
extent that this Agreement or any part thereof is deemed to be a nonqualified
deferred compensation plan subject to Section 409A of the Code and the
regulations and guidance promulgated thereunder, (i) the provisions of
this Agreement shall be interpreted in a manner to comply in good faith with
Section 409A of the Code, and (ii) the parties hereto agree to amend this
Agreement, if necessary, for the purposes of complying with Section 409A of the
Code promptly upon issuance of any regulations or guidance thereunder; provided
that any such amendment shall not materially change the present value of the
benefits payable to Employee hereunder or otherwise materially and adversely
affect Employee, or the Company or any of the Related Entities, without the
written consent of Employee or the Company, as the case may be.


 


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Confidentiality,
Intellectual Property and Company Policies


 


12.           Confidentiality.


 


(a)           In addition to his duty to preserve
information protected by the attorney client privilege and the work product
doctrine, Employee shall not, during the term of this Agreement or at any time
thereafter, impart to anyone or use any Confidential Information or Employee
may acquire in the performance of Employee’s duties, except as required by law.
Employee will hold in complete confidence and not disclose, produce, publish,
permit access to, or reveal any information and material which is proprietary
to Company, whether or not marked as “confidential” or “proprietary” and which
is disclosed to or obtained by Employee, which relates to Company’s business
activities (“Confidential Information”). Confidential Information shall not
include any information which is publicly available at the time of disclosure
or subsequently becomes publicly available through no fault of Employee or any
of its agents or employees.


 


(b)           Employee shall take all reasonable
measures necessary to protect the confidentiality of the Confidential
Information and to avoid disclosure or use of the Confidential Information,
except as permitted herein, including the highest degree of care that Employee
utilizes to protect Employee’s own confidential information. Employee shall
promptly notify Company in writing of any disclosure, misuse or
misappropriation of Confidential Information which may come to Employee’s
attention.


 


(c)           Disclosure of Confidential
Information is not precluded if such disclosure is in response to a valid order
of a court or other governmental body of the United States or any political
subdivision thereof; provided that Employee will first give notice to Company
and make a reasonable effort to obtain a protective order requiring that the
Confidential Information be disclosed only for limited purposes for which the
order was issued.


 


(d)           Employee shall not disclose the
Confidential Information to any third party without first obtaining Company’s
written consent and shall disclose the Confidential Information only to its own
employees having a need to know. Employee shall promptly notify Company of any
items of Confidential Information prematurely disclosed.


 


(e)           Employee agrees that Company’s
Confidential Information has been developed or obtained by the investment of
significant time, effort and expense and provides Company with a significant
competitive advantage in its business. If Employee fails to comply with any
obligations hereunder, Employee agrees that Company will suffer immediate,
irreparable harm for which monetary damages will provide inadequate
compensation. Accordingly, Employee agrees that Company will be entitled, in
addition to any other remedies available to it, at law or in equity, to
immediate injunctive relief to specifically enforce the terms of this
Agreement.


 


(f)            The obligations set forth in this
Paragraph 12 and its subparagraphs shall survive expiration or termination of
this Agreement.


 


13.           No Solicitation. Employee
agrees that during Employee’s employment and for a one year period after the
termination of said employment, Employee will not solicit for hire any current
employees of the Company.


 


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14.           Assignment of Inventions. Employee
agrees that during the Term that all inventions that are developed using
equipment, supplies, facilities or trade secrets of the Company, or result from
work performed by Employee for the Company (collectively “Assigned Inventions”),
will be the sole and exclusive property of the Company and are hereby
irrevocably assigned by Employee to the Company.


 


15.           Assignment of Intellectual
Property Rights. In addition to the foregoing assignment of Assigned
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 Assigned
Invention, and (b) any and all “Moral Rights” (as defined below) that Employee
may have in or with respect to any Assigned 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 Assigned Invention, even after expiration or
termination of this Agreement. For the purposes of this Agreement, “Moral
Rights” mean any rights to claim authorship of an Assigned Invention to object
to or prevent the modification of any Assigned Invention, or to withdraw from
circulation or control the publication or distribution of any Assigned
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.”


 


16.           Work for Hire. Employee acknowledges
and agrees that any copyrightable works prepared by Employee during the Term
are “works for hire” under the Copyright Act and that the Company will be
considered the author and owner of such copyrightable works.


 


17.           Return of Materials. On termination of the Employee’s employment for any
reason whatsoever, the Employee agrees to deliver promptly to the Company all
files, forms, brochures, books, materials, written correspondence, memoranda,
documents, manuals, computer disks, software products and lists of any nature
whatsoever pertaining to the business of the Corporation and its affiliates and
subsidiaries in the possession of the Employee or directly or indirectly under
the control of the Employee and not to make for his personal or business use or
that of any other person, reproductions or copies of any such property or other
property of the Corporation and its affiliates and subsidiaries.


 


18.           Human Resources Policy and
Procedures. Employee agrees to review and abide by 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.


 


General
Provisions.


 


19.           Governing Law and Forum. This
Agreement shall be governed in accordance with the laws of the State of
California. Any disputes arising out of Employee’s employment or this Agreement
shall be brought in San Diego County, California.


 


20.           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 anyway.


 


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21.           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 is not embodied in this Agreement. Any modification of this Agreement
will be effective only if in writing signed by Employee and Company’s
President.


 


 


	
  OPEN ENERGY CORPORATION

  	
  Employee

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:
  

  	
  /s/
  David P. Saltman

  	
   

  	
  /s/
  Christopher Gopal

  	
   

  
	
   

  	
     David
  P. Saltman

  	
   

  	
  Christopher
  Gopal

  
	
  Its:

  	
     Chairman

  	
   

  
						



 


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