Exhibit 10.1 


 


EXECUTIVE EMPLOYMENT AGREEMENT


(as amended and restated effective January
1, 2015)


 


This Executive Employment
Agreement (this “Agreement”) is made effective as of January 1, 2015 (“Effective Date”),
by and between Energous, Inc., a Delaware corporation (“Company”), and Stephen R. Rizzone (“Executive”).


 


Statement of Purpose


 


The
Company and Executive entered into an Executive Employment Agreement (the “Original Agreement”) dated
effective as of October 1, 2013 (the “Original Effective Date”). This Agreement is an amendment and restatement
of the Original Agreement and supersedes and replaces the Original
Agreement in its entirety effective as of January 1, 2015.


 


The parties agree as
follows:


 





1.  Definitions. For the purposes of this Agreement, the following terms have the meanings specified or referred to in this
Section 1.


 







“Board”
— means the board of directors of Company.


 


“Cause”
— means the occurrence of any of the following events during Executive’s employment under this Agreement: (a) Executive’s
conviction of a felony involving fraud, misappropriation, embezzlement or dishonesty in conjunction with Executive’s duties
to Company; or (b) Executive’s repeated and willful failure to perform Executive’s job duties as defined by the Board
or material breach of this Agreement or the PIIA, provided, in each case, that the Board notifies the Executive of the acts deemed
to constitute such repeated and willful failure or material breach in writing and Executive fails to cure such failure or breach
within sixty (60) days after written notice is given.


 


“Disability”
— means if (a) the Executive is unable to perform the essential duties of the Executive’s employment due to physical
or emotional incapacity or illness, where such inability is reasonably expected to be of long-continued and indefinite duration
(i.e., for at least three (3) months); or (b) the Executive is entitled to (i) disability retirement benefits under the federal
Social Security Act or (ii) recover benefits under any long-term disability plan or policy maintained by Company or the Executive.


 


“Equity Percentage”
– means six percent (6%) of Company’s fully-diluted capitalization, assuming the exercise or conversion of all exercisable
or convertible securities and including any shares reserved under any equity incentive plan or similar arrangement.


 


“Good Reason”
— means the occurrence of any of the following events during Executive’s employment under this Agreement, provided
that Executive notifies Company of the occurrence of the applicable event in writing within not more than ninety (90) days after
initial existence and which Company does not cure within thirty (30) days of such notice: (a) any material reduction in Base Salary
or target Performance Bonus(es); (b) any reduction in Executive’s duties (including title, responsibilities and/or authorities),
provided, that that the Board may elect to separate the Chairman and Chief Executive Officer roles (if Executive holds both such
positions) if they deem such separation is in the best interests of the stockholders without such separation constituting Good
Reason; (c) requiring Executive to report to anyone other than the Board, or employees of Company or any subsidiary of Company
that reported to Executive to report directly to the Board or another executive; (d) any requirement that Executive relocate without
appropriate relocation compensation and consideration, including not requiring Executive to maintain two households, consideration
of family circumstances, and providing a relocation package consistent with Company’s industry, the Executive’s position
and taking into consideration Executive’s specific housing situation; or (e) Company’s failure to cause the Agreement
to be assumed by a successor to Company in connection with a Liquidation Event as required by Section 13.1.


 






    	 



    	 



    

 


“IPO”
– means (a) a firm commitment underwritten public offering of Company’s Common Stock pursuant to an effective registration
statement under the Securities Act of 1933, as amended, immediately following which Company’s Common Stock is listed on a
national securities exchange, or (b) another equity financing transaction by Company immediately following which Company’s
Common Stock is either (i) listed on a national securities exchange, or (ii) otherwise publicly traded and listed, with material
public float and trading volume, as determined in good faith by the Board.


 


“Liquidation
Event” – means a merger, acquisition, consolidation or other transaction (other than an Equity Financing) following
which the holders of Company’s outstanding voting securities prior to such transaction hold less than 50% of the outstanding
voting securities of the acquiring or surviving corporation, or a sale, license or transfer of all or substantially all of Company’s
assets.


 


“PIIA”
– means Company’s standard form of Proprietary Information and Inventions Agreement attached hereto as Exhibit B.


 


“Section
409A” – means Section 409A of the Internal Revenue Code of 1986, as amended and shall include the valid and
binding governmental regulations, court decisions and other regulatory and judicial authority issued or rendered thereunder.


 


2.  
Employment. Company hereby continues to employ Executive, and Executive hereby continues such employment, upon the terms
and conditions set forth herein.


 


3.  Duties.


 


3.1  Position. Executive is employed as Company’s President and Chief Executive Officer, and shall have the duties and
responsibilities as are normally related to such position, as well as such additional duties and responsibilities as may be reasonably
assigned by the Board from time to time. Executive shall perform faithfully and diligently all such duties and responsibilities.
Executive shall report to the Board. Executive will be entitled to serve as member of the Board for so long as Executive continues
to serve as Company’s President and Chief Executive Officer, but shall resign from the Board immediately after any termination
of his employment hereunder. As an officer and member of the Board, Executive has entered in the form of Indemnification Agreement
attached as Exhibit A (the “Indemnification Agreement”). In addition, for so long as Executive
serves as a member of the Board and for a customary period thereafter, Company shall maintain director’s and officer’s
insurance in such amount as reasonably agreed by the Board.


 






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3.2  Best Efforts/Full-time. Executive shall expend Executive’s best efforts on behalf of Company, and will abide by all
policies and decisions made by Company, as well as all applicable federal, state and local laws, regulations or ordinances. Executive
shall act in the best interest of Company at all times. Executive shall devote Executive’s full business time and efforts
to the performance of Executive’s assigned duties for Company, unless otherwise approved in advance by the Board; provided,
however, that the Executive shall be permitted to serve as a member
of the board of directors or managers of up to two corporations, limited liability companies or other entities other than Company,
or to participate in other advisory or charitable activities, provided further that such activities do not conflict with Company’s
core business and such service does not materially interfere with Executive’s duties at Company.


 


4.  Employment Period. The term of the Agreement shall be four years beginning January 1, 2015 (the “Initial Employment
Period”) and will automatically renew for successive one-year periods (each, a “Renewal Employment Period”
and together with the Initial Employment Period, the “Employment Period”) unless not later than the end
of the Initial Employment Period or any Renewal Employment Period, as the case may be, either party gives written notice to the
other party of its election to terminate the Employment Period. The Employment Period may be ended earlier in accordance with,
and subject to, the provisions of Section 8.


 


5.  
Compensation.


 


5.1  Base Salary. As compensation for Executive’s performance of Executive’s duties hereunder, Company shall pay
to Executive a base salary of $365,000.00 per year prior (the “Base Salary”). The Base Salary shall be
payable in accordance with the normal payroll practices of Company, less required deductions for state and federal withholding
tax, social security and all other employment taxes and payroll deductions. In the event Executive’s employment under this
Agreement is terminated by either party, for any reason, Executive shall earn the Base Salary prorated to the date of termination.
The Base Salary shall be subject to periodic review and increase in the discretion of the Board. This position is an exempt position,
which means Executive is paid for the job and not by the hour. Accordingly, Executive shall not receive overtime pay if Executive
works more than 8 hours in a workday or 40 hours in a workweek.


 


5.2  Performance Bonuses. Executive shall be eligible to receive a quarterly performance bonus for each quarter during the Employment
Period (each, a “Performance Bonus”) in a target amount equal to 25% of Executive’s Base Salary.
The amount of the Performance Bonus actually payable for performance during a quarter shall be determined based on achievement
of performance objectives as approved by the Board. Each Performance Bonus shall be payable in accordance
with the normal payroll practices of Company on or before March 15 of the calendar year immediately following the applicable performance
year, less required deductions for state and federal withholding tax, social security and all other employment taxes and payroll
deductions. 


 






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5.3  Equity Grants.


 


5.3.1  Options. Executive was granted an incentive stock option pursuant to Company’s equity incentive plan (the “Plan”)
of 1,100,000 shares (the “Option”) representing the Equity Percentage as of the grant date together with
an estimate of the dilutive effect of the IPO. The Option was issued as soon as reasonably practicable following the Original Effective
Date and shall be subject to vesting with 1/48th of the shares subject to the Option vesting upon the completion of each month
of continuous service by Executive as an employee, director or consultant of Company and acceleration of vesting as set forth in
Section 8 below. Because the Option represented less than the Equity Percentage following the consummation of the IPO, Company
granted Executive an additional option to purchase the number of shares of Common Stock of Company constituting, together with
the Option, the Equity Percentage immediately following the consummation of the IPO (the “Second Option”).
The Second Option shall vest, subject to Executive’s continued employment, over the same vesting schedule as the Option with
appropriate adjustment such that one hundred percent (100%) of the shares subject to the Option and the Second Option shall be
fully vested and exercisable on the four-year anniversary of the Original Effective Date, unless earlier terminated or accelerated
as provided herein. The Option and the Second Option shall each be subject to the terms and conditions of the Plan and form of
agreement thereunder and shall have an exercise price per share equal to the fair market value of Company’s Common Stock
as determined by the Board in good faith on the date of grant.


 


5.3.2  Performance Share Units. Company shall grant to Executive under the Plan an award of performance share units (the “PSUs”)
that are earned based on Company performance during the period from the Effective Date until the end of the Initial Employment
Period, or if earlier, a Liquidation Event (the “Performance Period”), subject to the following terms
and conditions:


 


5.3.2.1  The number of PSUs, assuming maximum performance, shall equal 5% of the total Company common shares outstanding on the date of
grant.


 


5.3.2.2  The grant of the PSUs shall be conditioned on Company first receiving shareholder approval for additional shares to the Plan.


 


5.3.2.3  At the end of each calendar quarter during the Performance Period or upon an earlier Liquidation Event, the Board will determine
the market capitalization of the Company based on based on the average of (1) the average high daily trading price during the last
month of the applicable calendar quarter and (2) the average low daily trading price during the last month of the applicable calendar
quarter. In case of a Liquidation Event, market capitalization will be based on the sale price. The number of PSUs that are earned
shall then be determined as follows:


 






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	Market Capitalization	Percentage Earned
	 	 
	$100 million or less (threshold)	0%
	 	 
	$1.1 billion or more (maximum)	100%


  


For market
capitalization between $100 million and $1.1 billion, the percentage earned shall be determined based on straight line interpolation.
The number of PSUs earned for a calendar quarter (or upon a Liquidation Event) based on market capitalization determined for the
quarter (or Liquidation Event) shall be reduced by the number of PSUs earned for all prior quarters. See Exhibit C attached
to this Agreement for an example.


 


5.3.2.4  For any PSUs earned for a calendar quarter or upon a Liquidation Event, 50% are paid immediately (within 60 days after the end
of the quarter or Liquidation Event, as applicable, upon written certification by the Board of performance results for the relevant
period) and 50% are deferred until the end of the Initial Employment Period, subject to continued employment (the “Deferred
Units”). Payment is in the form of one share of Company common stock for each PSU that is payable. See Section 8
for treatment upon termination of employment.


 


5.3.2.5  The PSUs shall be subject to the terms and conditions of the Plan and form of agreement thereunder, which terms shall not be inconsistent
with this Agreement.


 


5.3.3  Other Equity Awards. The Board shall annually review and consider additional equity awards for Executive on such terms as
the Board may determine.


 


6.  Benefits. Executive shall be eligible for all customary and usual fringe benefits generally available to senior executives
of Company, including group health insurance coverage, subject to the terms and conditions of Company’s benefit plan documents.


 


7.  Business Expenses. Executive will be reimbursed for all reasonable, out-of-pocket business expenses incurred in the performance
of Executive’s duties on behalf of Company (“Business Expenses”). To obtain reimbursement, expenses
must be submitted promptly with appropriate supporting documentation in accordance with Company’s policies.


 


8.  Termination of Employment.


 


8.1  By Death or Disability. Executive’s employment will terminate automatically on the death of Executive or upon Executive’s
Disability. In such event, Company will pay to Executive’s beneficiaries or estate, as appropriate, in a lump sum less required
deductions for state and federal withholding tax, social security and all other employment taxes and payroll deductions, within
thirty (30) days of Executive’s death or Disability, an amount equal to the sum of (a) an amount equal one times the sum
of (i) Executive’s Base Salary plus (ii) the target amount of Executive’s Performance Bonus for the year of termination,
plus (b) any Base Salary as shall have accrued but remain unpaid and any un-reimbursed Business Expenses as of the date of Executive’s
death or Disability. In addition, on the death of Executive or upon Executive’s Disability, twenty-five percent (25%) of
the shares subject to the Option and the Second Option shall immediately vest and become exercisable, Executive shall have a period
of one year post-termination in which to exercise the Option and the Second Option, and if a Liquidation Event shall occur following
the death of Executive or upon Executive’s Disability and prior to the termination of the Option and the Second Option, one
hundred percent (100%) of the shares subject to the Option and the Second Option shall immediately vest and become exercisable
effective immediately prior to the consummation of the Liquidation Event. In addition, on the death of Executive or upon Executive’s
Disability, any outstanding Deferred Units shall be immediately vested and paid, but any remaining unearned portion of the PSUs
shall be immediately canceled and forfeited. For purposes of this Agreement, in the event of a dispute, the determination of a
Disability shall be made reasonably by the Board of Directors acting in good faith and shall be supported by advice of an independent
physician competent in the area to which such Disability relates. Executive must submit to a reasonable number of examinations
by the physician making the determination of disability, and the Executive hereby authorizes the disclosure and release to the
Company of such determination and all supporting medical records. If Executive is not legally competent, Executive’s legal
guardian or duly authorized attorney-in-fact will act in Executive’s stead, for the purposes of submitting Executive to the
examinations, and providing the authorization of disclosure as required under this Section 8.2.


 






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8.2  
By Company for Cause. Executive’s employment with the Company may be terminated at the option of and by written notice
from the Company for Cause (which notice shall specify the applicable Cause, in reasonable detail). Upon any such termination,
all rights, obligations and duties of the parties hereunder shall immediately cease (including, but not limited to, the payment
by the Company of any Performance Bonuses or severance payments as set forth in this Section 8), except for the Executive’s
obligations under Section 10 and Company’s obligation; provided, that Company shall pay any accrued but unpaid Base Salary
and reimburse any Business Expenses as provided in Section 7. In addition, upon such termination of employment, all Deferred Units
and any remaining unearned portion of the PSUs shall be immediately canceled and forfeited.


 


8.3  By Company without Cause or by Employee for Good Reason. Company may terminate Executive “at will” and without
Cause at any time, and Executive may terminate Executive’s employment for Good Reason. In the event Company terminates Executive’s
employment without Cause or Executive terminates Executive’s employment with Good Reason during Executive’s employment
hereunder, Company shall pay to Executive (a) an amount equal two times the sum of (i) Executive’s Base Salary plus (ii)
the target amount of Executive’s Performance Bonus for the year of termination, payable in substantially equal installments
on a payroll period basis during the twenty-four (24) month period immediately following such termination of employment; (b) an
amount equal to two years of COBRA premiums based on the terms of Company’s group health plan and Executive’s coverage
under such plan as of the date of such termination of employment (regardless of any COBRA election actually made by Executive or
the actual COBRA coverage period under Company’s group health plan), payable in payroll period installments on the same basis
as the amount in clause (a) above; and (c) a Performance Bonus for the year of termination based on actual performance and prorated
based on the number of days in the performance year through the date of such termination of employment, payable in cash at the
same time bonuses are paid to other employees of Company for such performance year but not later than March 15 of the following
year. In addition, upon a termination of employment under this Section 8.3, twenty-five percent (25%) of the shares subject to
the Option and the Second Option shall immediately vest and become exercisable. Executive shall have a period of one year following
such termination in which to exercise the Option and the Second Option. If a Liquidation Event shall occur following such termination
of employment and prior to the termination of the Option and the Second Option, one hundred percent (100%) of the shares subject
to the Option and the Second Option shall immediately vest and become exercisable. In addition, upon a termination of employment
under this Section 8.3, (x) any outstanding Deferred Units shall be immediately vested and paid, (y) any remaining unearned portion
of the PSUs shall be immediately canceled and forfeited, and (z) any other outstanding, unvested time-based equity awards shall
immediately vest to the extent such award was scheduled to vest during the two-year period immediately following such termination
of employment (unless the terms of the applicable award agreement provide better treatment for Executive, in which case the terms
of the award agreement shall control).


 






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8.4  
By Executive without Good Reason. Executive may terminate Executive’s Employment at will (without Good Reason) upon
written notice to Company. Executive shall be entitled to all Base Salary at the rate then in effect up to and through the effective
date of termination, as well as any unreimbursed Business Expenses. In addition, upon such termination of employment, all Deferred
Units and any remaining unearned portion of the PSUs shall be immediately canceled and forfeited.


 


8.5  Continuation of Benefits. Following the coverage termination date under Company’s group medical, life and long-term
disability insurance plans, Executive, his spouse and his dependents shall be entitled to continuation of coverage pursuant to
any statutory rights Executive may then have for such continuation coverage (whether under part VI of Subtitle B of Title I of
the Executive Retirement Income Security Act of 1974, as amended, or Section 4980B of the Internal Revenue Code of 1986, as amended
(together, “COBRA”), or otherwise). Such continuation coverage shall be provided in accordance with applicable
law and the terms of the any Company benefit plans as they may be amended from time to time and shall be afforded no longer than
the period provided by law and only to the extent that Executive complies with all conditions of such continuation coverage on
a timely basis. In the event of Executive’s death or Disability, Company will continue to provide coverage or reimburse Executive
for the costs of COBRA for a period of one (1) year.


 


8.6  Application of Section 409A.


 


8.6.1  Notwithstanding anything set forth in this Agreement to the contrary, any payments and benefits provided pursuant to this Agreement
which constitute “deferred compensation” within the meaning of Section 409A shall not commence until Executive has
incurred a “separation from service” within the meaning of Section 409A (“Separation From Service”),
unless Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional
20% tax under Section 409A.


 


8.6.2  It is intended that each installment of the severance benefits payments provided for in this Agreement is a separate “payment”
for purposes of Section 409A. For the avoidance of doubt, it is intended that payments of the Severance Benefits set forth in this
Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury
Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if Company (or, if applicable, the successor entity
thereto) determines that the severance benefits constitute “deferred compensation” under Section 409A and Executive
is, on the termination of Executive’s service, a “specified employee” of Company or any successor entity thereto,
as such term is defined in Section 409A, then, solely, to the extent necessary to avoid the incurrence of the adverse personal
tax consequences under Section 409A, the timing of the severance benefit payments shall be delayed until the earlier to occur of:
(i) the date that is six months and one day after Executive’s Separation From Service or (ii) the date of Executive’s
death (such applicable date, the “Specified Employee Initial Payment Date”), Company (or the successor
entity thereto, as applicable) shall (A) pay Executive a lump sum amount equal to the sum of the severance benefit payments that
Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment
of the severance benefits had not been so delayed pursuant to this section and (B) commence paying the balance of the severance
benefits in accordance with the applicable payment schedules set forth in this Agreement.


 






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8.6.3  
Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described
above), all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices. To the
extent required by Section 409A, each reimbursement or in-kind benefit provided under the Agreement shall be provided in accordance
with the following: (i) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during each calendar year
cannot affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (ii) any
reimbursement of an eligible expense shall be paid to Executive on or before the last day of the calendar year following the calendar
year in which the expense was incurred, and (iii) any right to reimbursements or in-kind benefits under the Agreement shall not
be subject to liquidation or exchange for another benefit.


 


9.  Non-Compete Following Liquidation Event. Executive agrees to read, sign and abide by the Non-Competition and Non-Solicitation
Agreement (the “Non-Competition Agreement”) in the form attached to this Agreement as Exhibit D.


 


10.  No Conflict of Interest. During the term of Executive’s employment with Company, Executive must not engage in any
work, paid or unpaid, that creates a conflict of interest with Company. Such work shall include, but is not limited to, directly
or indirectly competing with Company in any way, or acting as an officer, director, Executive, consultant, stockholder, volunteer,
lender, or agent of any business enterprise of the same nature as, or which is in direct competition with, the business in which
Company is now engaged or in which Company becomes engaged during the term of Executive’s employment with Company, as may
be determined by the Board in its sole discretion. If the Board believes such a conflict exists during the term of this Agreement,
the Board may ask Executive to choose to discontinue the other work or resign employment with Company. Executive hereby represents
and warrants that acceptance of employment with Company and execution and performance of this Agreement by Executive does not conflict
with or violate any provision of or constitute a default under any agreement, judgment, award or decree to which Executive is a
party or by which Executive is bound, including, but not limited to, any implied or express agreement with any of Executive’s
prior employers.


 






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11.  Proprietary Information and Inventions Assignment Agreement. Executive agrees to read, sign and abide by PIIA, which is
incorporated herein by reference.


 


12.  Parachute Payments.


 


12.1  Best Net Cut-Back. If any payment or benefit Executive would receive from the Company pursuant to this Agreement or otherwise
(“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G
of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this sentence, be subject
to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will be equal
to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that
would result in no portion of the Payment being subject to the Excise Tax, or (y) the largest portion, up to and including the
total, of the Payment, whichever amount ((x) or (y)), after taking into account all applicable federal, state and local employment
taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt
of the greatest economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a
Reduced Amount will give rise to the greater after tax benefit, the reduction in the Payments shall occur in the following order:
(a) reduction of cash payments; (b) cancellation of accelerated vesting of equity awards other than stock options; (c) cancellation
of accelerated vesting of stock options; and (d) reduction of other benefits paid to Executive. Within any such category of payments
and benefits (that is, (a), (b), (c) or (d)), a reduction shall occur first with respect to amounts that are not “deferred
compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration
of compensation from Executive’s equity awards is to be reduced, such acceleration of vesting shall be canceled, subject
to the immediately preceding sentence, in the reverse order of the date of grant.


 


12.2  Determinations. The independent registered public accounting firm engaged by Company for general audit purposes as of the
day prior to the effective date of the event described in Section 280G(b)(2)(A)(i) of the Code shall perform the foregoing calculations.
If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual,
entity or group effecting such event, Company shall appoint a nationally recognized independent registered public accounting firm
to make the determinations required hereunder. Company shall bear all expenses with respect to the determinations by such independent
registered public accounting firm required to be made hereunder. The independent registered public accounting firm engaged to make
the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to Company and Executive
within thirty (30) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that
time by Company or Executive) or such other time as reasonably requested by Company or Executive. Any good faith determinations
of the independent registered public accounting firm made hereunder shall be final, binding and conclusive upon the Company and
Executive.


 






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12.3  280G Vote. Notwithstanding the above, prior to any reduction in payments and benefits under this Section 12, at Executive’s
request Company agrees, if permissible under Section 280G of the Code and applicable law (and subject to any applicable requirements
including any requirements that may be applicable to Executive), to solicit a vote of all eligible shareholders of Company for
approval of such amounts such that the compensation will not be subject to the Excise Tax as provided in Q&As 6 and 7 of Section
1.280G-1 of the Treasury Regulations or any superseding provision of such regulations. Company agrees to take all reasonable steps,
in good faith, to solicit such vote if so request


 


13.  General Provisions.


 


13.1  Successors and Assigns. The rights and obligations of Company under this Agreement shall inure to the benefit of and shall
be binding upon the successors and assigns of Company. Company shall require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) or assignee to all or substantially all of the business and/or assets of Company in connection
with a Liquidation Event to assume expressly and agree to perform this Agreement in the same manner and to the same extent that
Company would be required to perform it if no such succession or assignment had taken place. Executive shall not be entitled to
assign any of Executive’s rights or obligations under this Agreement.


 


13.2  Waiver. Either party’s failure to enforce any provision of this Agreement shall not in any way be construed as a waiver
of any such provision, or prevent that party thereafter from enforcing each and every other provision of this Agreement.


 


13.3  Attorneys’ Fees. Each side will bear its own attorneys’ fees in any dispute unless a statutory section at issue,
if any, authorizes the award of attorneys’ fees to the prevailing party.


 


13.4  Severability. In the event any provision of this Agreement is found to be unenforceable by an arbitrator or court of competent
jurisdiction, such provision shall be deemed modified to the extent necessary to allow enforceability of the provision as so limited,
it being intended that the parties shall receive the benefit contemplated herein to the fullest extent permitted by law. If a deemed
modification is not satisfactory in the judgment of such arbitrator or court, the unenforceable provision shall be deemed deleted,
and the validity and enforceability of the remaining provisions shall not be affected thereby.


 


13.5  Interpretation; Construction. The headings set forth in this Agreement are for convenience only and shall not be used in
interpreting this Agreement. This Agreement has been drafted by legal counsel representing Executive and Company and has participated
in the negotiation of its terms. Furthermore, Company acknowledges that Company has had an opportunity to review and revise the
Agreement and have it reviewed by legal counsel, if desired, and, therefore, the normal rule of construction to the effect that
any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.


 


13.6  Governing Law; Venue and Jurisdiction. This Agreement shall be governed by and construed under California law, without regard
to conflict of laws principles. Any dispute between the parties arising from this Agreement, including any disputes concerning
the negotiation, interpretation, validity, performance, breach or enforcement of this Agreement and the scope or applicability
of this agreement to arbitrate, shall be determined by arbitration in Orange County, California before one arbitrator, who shall
be a retired judge of the Los Angeles Superior Court or Orange County Superior Court or a retired justice of the California Court
of Appeal for the Second Appellate District. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration
Rules and Procedures. Judgment on the arbitration award may be entered in any court having jurisdiction. This clause shall not
preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Any party who
is deemed the prevailing party by the arbitrator shall be entitled to his or its reasonable attorneys’ fees and costs. The
Company shall bear the costs of the arbitrator, forum and filing fees in connection with any such arbitration.


 






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13.7  Survival. Sections 8, 9, 10, 11, 12 and 13 of this Agreement shall survive any termination of Executive’s employment
by Company.


 


13.8  Confidentiality of Terms. Executive agrees to follow Company’s strict policy that Executives must not disclose, either
directly or indirectly, any information, including any of the terms of this Agreement, regarding salary, bonuses, or stock purchase
or option allocations to any person, including other Executives of Company; provided, that Executive may discuss such terms with
members of his immediate family and any legal, tax or accounting specialists who provide Executive with individual legal, tax or
accounting advice provided, further, that such family members or specialists are bound by similar obligations of confidentiality.


 


13.9  Notice. Any notices hereunder will be given to the appropriate party at the address, fax number or email address set forth
on the signature page hereto, or at such other address as the party will specify in writing. Notice will be deemed given: upon
delivery, if sent by email or personal delivery; if sent by fax, upon confirmation of receipt; or if sent by certified mail, postage
prepaid, 3 days after the date of mailing.


 


14.  Entire Agreement; Amendments. This Agreement, including the Indemnification Agreement, the PIIA, the Non-Competition Agreement
and the Plan and related stock option documents constitutes the entire agreement between the parties relating to this subject
matter and supersedes all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or
oral. This Agreement may be amended or modified only with a signed writing by Company and Executive. No oral waiver, amendment
or modification will be effective under any circumstances whatsoever.


 


[Signature Page Follows]


 




    	-11-



    	 



    

 


THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT
AND FULLY UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. THE PARTIES HAVE EXECUTED THIS AGREEMENT AS OF THE EFFECTIVE DATE.


 





	 	EXECUTIVE:	 
	 	 	 	 
	 	/s/ Stephen R. Rizzone	 
	 	Stephen R. Rizzone	 
	 	 	 	 
	 	 	 	 
	 	COMPANY:	 
	 	 	 	 
	 	ENERGOUS, INC.	 
	 	 	 	 
	 	By: 	/s/ John R. Gaulding	 
	 	 	 	 
	 	Name:  	John R. Gaulding	 
	 	 	 	 
	 	Title:
	Chairman