Exhibit 10.1


 


AMENDED AND RESTATED


EMPLOYMENT AGREEMENT


 


This EMPLOYMENT AGREEMENT (the “Agreement”),
originally effective as of October 22, 2007, is hereby amended and
restated effective as of November 12, 2008, by and between BROADWIND
ENERGY, INC. (the “Company”), and Lars Moller (“Executive”).


 


WHEREAS, the Company is engaged in the business
of manufacturing wind turbine tower structures, gearing and gear sets for wind
gearboxes, specialized heavy-haul transportation services for the wind
industry, service and maintenance of wind turbines, and wind turbine
construction labor support (the “Company Business”);


 


WHEREAS, Executive was initially employed by the
Company, as Executive Vice President of Business Development and, thereafter,
became employed by the Company as its Chief Operating Officer;


 


WHEREAS, the Company desires to continue to
employ Executive and Executive desires to continue to be employed by the
Company; and


 


WHEREAS, the Company and Executive desire to
enter into this Agreement to amend and restate the rights, duties, benefits and
obligations with respect to the employment of Executive by the Company under
the terms and conditions herein provided.


 


NOW, THEREFORE, in consideration of Executive’s
employment with the Company, and the mutual and respective covenants and
agreements of the parties herein contained, and other good and valuable
consideration present but not specifically set forth, the parties hereto agree
as follows:


 


1.             Employment.  The
Company hereby agrees to continue to employ Executive as Executive Vice
President and Chief Operating Officer of the Company, and Executive hereby
agrees to be employed by the Company, on the terms and conditions set forth
herein.  This Agreement and Executive’s
employment by the Company commenced on October 22, 2007 (the “Start Date”) and this Agreement and
Executive’s employment hereunder continues and shall end on the third
anniversary of the Start Date, unless sooner terminated in accordance with the
provisions of Section 6 hereof (the “Term”). The
Term will thereafter automatically extend for successive one-year periods, but
Executive’s employment may at any time be terminated in accordance with the
provisions of Section 6 hereof.


 


2.             Duties and Responsibilities. 
Executive shall serve as Executive Vice President and Chief Operating
Officer of the Company and shall report to the Chief Executive Officer, the
Company’s Board of Directors (the “Board”),
and his/their designees.  Executive shall
have the duties and responsibilities that are commensurate with that position,
as well as such other duties as may be assigned to Executive by the Chief
Executive Officer or the Board from time to time.  Executive shall devote all of his working time and
best efforts to the business and affairs of the Company except for such time as
shall reasonably be required to serve in connection with civic or charitable
activities, or manage Executive’s financial matters, provided that such
activities, in the aggregate, do not interfere with Executive’s ability to
perform the duties and responsibilities 


 

















 


of his employment hereunder.  Executive shall follow the direction of the
Chief Executive Officer, the Board and his/their designees, and shall perform
all duties and responsibilities of the position that he holds, as those duties
and responsibilities may change from time to time.  Executive shall comply with the Company’s
standards, policies and procedures in effect on the date of this Agreement and
as they may change from time to time.


 


3.             Compensation and Related Matters.


 


(a)           Base Salary. 
Effective as of October 23, 2008, Executive shall receive an annual
base salary of Three Hundred Fifty Thousand US Dollars ($350,000), less
required and authorized withholding and deductions.  Executive’s salary shall be subject to review
and adjustment by the Company at least annually (except that no adjustment
shall be made prior to March 1, 2010), and paid in accordance with the
Company’s regular payroll schedule as it applies to salaried employees (“Base Salary”).


 


(b)           Bonus. 
For 2008, Executive will be eligible for an annual bonus of up to 100%
of his Base Salary in accordance with goals as mutually agreed upon in advance
between Executive and the Company.  For
2009 and thereafter, Executive will be eligible for an annual bonus in an
amount, and pursuant to such terms, as set forth in a written plan or other
written arrangement adopted by the Company.


 


(c)           Stock. 
Executive shall be eligible to participate in the Company’s common stock
incentive plan as in effect from time to time. 
The Company has granted Executive 500,000 stock options on the Start
Date with a five-year vesting schedule under the Company’s 2007 Equity
Incentive Plan.  The Company may grant
Executive additional stock options, restricted stock units or other awards
under the Company’s 2007 Equity Incentive Plan based on individual and Company
performance criteria to be established by the Board.


 


(d)           Benefits. 
Executive shall be entitled to all rights and benefits for which he is
eligible under the terms and conditions of the Company’s standard benefits and
compensation practices that may be in effect from time to time and provided by
the Company to its employees generally. 
In addition to, and not in limitation of, the foregoing, during the Term,
Executive shall be eligible to accrue up to four weeks (20 business days) of
paid time off (PTO) per anniversary year exclusive of any business day with
respect to which the Company is closed for business due to any federal, state
or local holiday or any day off generally granted by the Company to its
employees, subject to the Company’s then-current paid time off policy (which
shall not have the effect of reducing said four weeks (20 business days) of
paid vacation).  In addition to, and not
in limitation of the foregoing, during the Term, Executive shall receive any
additional benefits generally provided by the Company to executive employees of
the Company, including group health insurance for Executive and dependants,
life insurance, and long term disability insurance, and participation in the
Company’s 401(k) plan, all in accordance with applicable plan documents.


 


(e)           Expense Reimbursement. 
The Company will reimburse Executive for reasonable business expenses in
accordance with the Company’s standard expense account and reimbursement
policies.


 


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4.             Representations and Warranties of
Executive.  In order to induce the Company to employ
Executive, Executive hereby represents and warrants to the Company as follows:


 


(a)           Binding Agreement.  This Agreement has been duly executed and
delivered by Executive and constitutes a legal, valid and binding obligation of
Executive and is enforceable against Executive in accordance with its terms.


 


(b)           No Violations of Law.  The execution and delivery of this Agreement
and the other agreements contemplated hereby by Executive do not, and the
performance by Executive of his obligations under this Agreement and the other
agreements contemplated hereby will not, violate any term or provision of any
law, or any writ, judgment, decree, injunction, or similar order applicable to
Executive.


 


(c)           Litigation.  Executive is not involved in any proceeding,
claim, lawsuit, or investigation alleging wrongdoing by Executive before any
court or public or private arbitration board or panel or governmental
department, commission, board, bureau, agency or instrumentality.


 


(d)           No Conflicting
Obligations.  Executive is not
under, or bound to be under in the future, any obligation to any person or
entity that is or would be inconsistent or in conflict with this Agreement or
would prevent, limit, or impair in any way the performance by him of his
obligations hereunder, including but not limited to any duties owed to any
former employers not to compete or use or disclose confidential
information.  Executive represents and
agrees that he will not disclose to the Company or use on behalf of the Company
any confidential information or trade secrets belonging to a third party, including
any former employer.  Executive further
represents and agrees that he has returned, or will return before his last day
of employment with his current employer, all property belonging to Executive’s
current and previous employers, including but not limited to any and all
confidential information.  Provided these
representations are met by Executive and Executive has acted in good faith and
has not otherwise violated any contractual or legal obligations, the Company
will provide and pay for legal services to defend the Executive in the event of
litigation initiated by Executive’s preceding employer.  In the event the Company is required to
defend Executive pursuant to this Section, the Company and Executive shall be
represented by the same legal counsel as chosen by the Company.


 


5.             Restrictive Covenants.


 


(a)           Confidentiality Critical.  The parties agree that the business in which
the Company is engaged is highly sales-oriented and the goodwill established
between Executive and the Company’s customers and potential customers is a
valuable and legitimate business interest worthy of protection under this
Agreement.  Executive acknowledges and
agrees that developing and maintaining business relationships is an important
and essential business interest of the Company. 
Executive further recognizes that, by virtue of his employment by the
Company, he will be granted otherwise prohibited access to confidential and
proprietary data of the Company which is not known to its competitors and which
has independent economic value to the Company and that he will gain an intimate
knowledge of the Company’s business and its policies, customers, employees and
trade secrets, and of other confidential, proprietary, 


 


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privileged, or secret
information of the Company and its customers (“Customers”)
(collectively, all such nonpublic information is referred to as “Confidential Information”).


 


This Confidential Information includes, but is not
limited to data relating to the Company’s marketing and servicing programs, procedures
and techniques; business, management and personnel strategies; the criteria and
formulae used by the Company in pricing its products, loss control and
information management services; the Company’s products and services; the
Company’s computer system and software; lists of prospects; customer lists; the
identity, authority and responsibilities of key contacts at accounts of
Customers; and the composition and organization of Customers’ business.  Executive recognizes and admits that this
Confidential Information constitutes valuable property of the Company,
developed over a long period of time and at substantial expense, and worthy of
protection.  Executive acknowledges and
agrees that only through his employment with the Company could he have the opportunity
to learn this Confidential Information. 
The Company acknowledges and agrees that Executive has prior and
substantial knowledge of the wind industry.


 


(b)           Confidential Information. 
Executive shall not at any time (for any reason), directly or indirectly,
for himself or on behalf of any other person or entity, (A) disclose to
any person or entity (except to employees or other representatives of the
Company who need to know such Confidential Information to the extent reasonably
necessary for Executive to perform his duties under this Agreement or such
employees or representatives to perform their duties on behalf of the Company,
and except as required by law) any Confidential Information, including, without
limitation, business or trade secrets of, or products or methods or techniques
used by, the Company, or any Confidential Information whatsoever concerning the
Customers, (B) use, directly or indirectly, for his own benefit or for the
benefit of another (other than a Customer) any of such Confidential
Information, or (C) assist any other person or entity in connection with
any action described in either of the foregoing clauses (A) and (B).


 


(c)           Noninterference with Employees. 
Executive further agrees that the Company has expended considerable time,
energy and resources into training its other employees (“Co-Workers”).  As a result, during his employment with the
Company and for a period of eighteen (18) months thereafter, Executive shall
not, for any reason, directly or indirectly, for himself or on behalf of any
other person or entity, (A) induce or attempt to induce any Co-Worker to
terminate employment with the Company, (B) interfere with or disrupt the
Company’s relationship with any of the Co-Workers, (C) solicit, entice,
hire, cause to hire, or take away any person employed by the Company at that
time or during the eighteen (18) month period preceding Executive’s last day of
employment with the Company, or (D) assist any other person or entity in
connection with any action described in any of the foregoing clauses (A) through
(C).


 


(d)           Non-competition. 
Executive
further agrees with the Company to the following provisions, all of which
Executive acknowledges and agrees are necessary to protect the Company’s
legitimate business interests.  Executive covenants and agrees with the Company
that:


 


(i)            Unless otherwise agreed between the
parties, Executive shall not, during his employment with the Company and
for a period of eighteen (18) months 


 


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thereafter, either directly or indirectly, engage in, render service or
other assistance to, or sell products or services, or provide resources of any
kind, whether as an owner, partner, shareholder, officer, director, employee,
consultant or in any other capacity, whether or not for consideration, to any
person, corporation, or any entity, whatsoever, that owns, operates or conducts
a business that competes, in any way, with the Company Business (as defined at
the start of this Agreement), other than the ownership of 5% or less of the
shares of a public company where Executive is not active in the day-to-day
management of such company.   With respect to the post employment
application of this Section 5(d)(i), the restrictions shall extend only to
those specific countries or provinces where the Company conducts business on
the day that Executive’s employment with the Company terminates.


 


(ii)           Executive shall not, during his employment with
the Company and for a period of eighteen (18) months thereafter, either directly
or indirectly, (A) solicit, call on or contact any Customer of the Company
with whom Executive has had material contact during his employment with the
Company for the purpose or with the effect of offering any products or services
of any kind offered by the Company at that time or during his employment with
the Company, (B) request or advise any present or future vendors or
suppliers to the Company to cancel any contracts, or curtail their dealings,
with the Company, or (C) assist any other person or entity in connection
with any action described in any of the foregoing clauses (A) through (B).


 


(iii)          During
his employment with the Company, Executive shall not own, or permit ownership
by Executive’s spouse or any minor children under the parental control of
Executive, directly or indirectly, an amount in excess of five percent (5%) of
the outstanding shares of stock of a corporation, or five percent (5%) of any
business venture of any kind, which operates or conducts a business that
competes, in any way, with the Company.


 


(e)           Non-disparagement. 
At any time
during or after Executive’s employment with the Company, Executive shall not
disparage the Company or any shareholders, directors, officers, employees, or
agents of the Company.  During and after
Executive’s employment with the Company, neither the Company nor its directors
or officers shall disparage Executive to third parties.


 


(f)            Understandings.


 


(i)            The
provisions of this Section 5 shall be construed as an agreement
independent of any other claim.  The
existence of any claim or cause of action of Executive against the Company,
whether predicated on Executive’s employment or otherwise, shall not constitute
a defense to the enforcement by the Company of the terms of Section 5 of
this Agreement.  Executive waives any
right to a jury trial in any litigation relating to or arising from this
Agreement.


 


(ii)           Executive
acknowledges and agrees that the covenants and agreements contained herein are
necessary for the protection of the Company’s legitimate business interests and
are reasonable in scope and content. 
Executive agrees that the 


 


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restrictions contained in this Section 5 are reasonable and will
not unduly restrict him in securing other employment or income in the event his
employment with the Company ends. 
Executive acknowledges and agrees that he executed this Agreement on or
before his first day of employment with the Company.


 


(g)           Injunctive Relief.  Executive acknowledges and agrees that any breach
by him of any of the covenants or agreements contained in this Section 5
would give rise to irreparable injury and would not be adequately compensable
in damages.  Accordingly, Executive
agrees that the Company may seek and obtain injunctive relief against the
breach or threatened breach of any of the provisions of this Agreement in
addition to any other legal or equitable remedies available.


 


(h)           Reformation and Survival.  The Company and Executive agree and stipulate
that the agreements and covenants contained in this Agreement and specifically
of this Section 5 are fair and reasonable in light of all of the facts and
circumstances of the relationship between them. 
The Company and Executive agree and stipulate that Executive has hereby
agreed to be bound to the obligations, restrictions and covenants of this Section 5
as a condition to his employment and in consideration of his compensation,
stock option grant, severance terms, and all other terms and provisions of this
Agreement.  The Company and Executive
acknowledge their awareness, however, that in certain circumstances courts have
refused to enforce certain agreements not to compete.  The Company and Executive agree that, if any term,
clause, subpart, or provision of this Agreement is for any reason adjudged by a
Court of competent jurisdiction to be invalid, unreasonable, unenforceable or
void, the same will be treated as severable, and shall be modified to the
extent necessary to be legally enforceable to the fullest extent permitted by
applicable law, and that such modification will not impair or invalidate any of
the other provisions of this Agreement, all of which will be performed in
accordance with their respective terms. 
Thus, in
furtherance of, and not in derogation of, the provisions of this Section 5,
the Company and Executive agree that in such event, this Section 5 shall
be deemed to be modified or reformed to restrict Executive’s conduct to the
maximum extent (in terms of time, geography, and business scope) that the court
shall determine to be enforceable.  The
provisions of this Section 5 shall survive the termination of this
Agreement and Executive’s resignation or termination of employment, regardless
of the reason and whether voluntary or involuntary.


 


6.             Termination.


 


(a)           Termination By The Company
With Cause.  The Company has
the right, in its reasonable determination at any time during the Term, to
terminate Executive’s employment with the Company for Cause (as defined below)
by giving written notice to Executive as described in this Section 6(a).  Prior to the effectiveness of termination for
Cause under subclause (i), (ii), (iii) or (iv) below, Executive shall
be given thirty (30) calendar days’ prior written notice from the Company,
specifically identifying the reasons which are alleged to constitute Cause for
any termination pursuant to the aforementioned subclauses, and an opportunity
to cure in the event Executive disputes such allegations; provided,
however, that the Company shall have no
obligation to continue to employ Executive following such thirty (30) calendar
day notice period unless Executive has cured the condition giving rise to the
Cause.  The Company’s termination of
Executive’s employment for Cause under subclause (v) or (vi) below
shall be effective immediately upon the Company’s written notice to
Executive.  If the 


 


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Company terminates
Executive’s employment for Cause, the Company’s obligation to Executive shall
be limited solely to the payment of unpaid Base Salary accrued up to the
effective date of termination plus any accrued but unpaid benefits to the
effective date of termination, and any unpaid bonus earned in accordance with
the then applicable bonus plan or program to the effective date of termination.


 


As used in this Agreement, the term “Cause” shall mean and include (i) Executive’s
abuse of alcohol that affects Executive’s performance of Executive’s duties
under this Agreement, or use of any controlled substance; (ii) a willful
act of fraud, dishonesty or breach of fiduciary duty on the part of Executive
with respect to the business or affairs of the Company; (iii) material
failure by Executive to comply with applicable laws and regulations or
professional standards relating to the business of the Company; (iv) material
failure by Executive to satisfactorily perform his duties hereunder, a material
breach by Executive of this Agreement, or Executive engaging in conduct that
materially conflicts with the best interests of the Company or that may materially
harm the Company’s reputation; (v) Executive being subject to an inquiry
or investigation by a governmental authority or self-regulatory organization
such that the existence of such inquiry or investigation may result in damage
to the Company’s business interests, licenses, reputation or prospects; or (vi) conviction
of a felony or a misdemeanor involving moral turpitude.


 


(b)           Termination By The Company
Without Cause.  The Company
shall have the right, at any time during the Term, to terminate Executive’s
employment with the Company without Cause by giving written notice to
Executive, which termination shall be effective thirty (30) calendar days from
the date of such written notice.  The
Company may provide thirty (30) days pay in lieu of notice.  If the Company terminates Executive’s
employment without Cause, the Company’s obligation to Executive shall be
limited solely to (i) unpaid Base Salary plus any accrued but unpaid
benefits to the effective date of termination, and any unpaid bonus earned in
accordance with the then applicable bonus plan or program to the effective date
of termination; (ii) severance in an amount equal to Executive’s
then-current Base Salary for a period of eighteen (18) months; and (iii) if
Executive is eligible for and timely elects COBRA coverage for health insurance
coverage, payment of Executive’s COBRA premiums for the health insurance
coverage for a period of up to eighteen (18) months, payments to be made on a
monthly basis when the premiums are due. 
Executive’s rights with regard to equity incentive awards, including
stock options and restricted stock units, shall be governed by separate
applicable agreements entered into between Executive and the Company.  As a condition to his receipt of the
post-employment payments and benefits under this Section 6(b), Executive
must be in compliance with Section 5 of this Agreement, and must execute,
return, not rescind and comply with a general release of claims agreement in
favor of the Company and related entities and individuals, within the timeframe
and in a form to be prescribed by the Company. 
The severance shall be paid in equal installments according to the
normal payroll schedule, the first payment to Executive to be made on the next
scheduled payroll date that occurs within ninety (90) days after the date of
Executive’s termination of employment, provided that the Company has received
the signed general release of claims agreement and Executive has not rescinded
such agreement within the rescission period set forth in such agreement.  Executive shall have no duty to mitigate
damages under this Section 6(b) during the applicable severance
period and, in the event Executive shall subsequently receive income from
providing Executive’s services to any person or entity, including self
employment income, or otherwise, then no such 


 


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income shall in any
manner offset or otherwise reduce the payment obligations of the Company
hereunder.


 


Notwithstanding anything
herein to the contrary, this Section 6(b) shall not apply if
Executive’s employment is terminated by the Company or a succeeding entity
without Cause upon or within one year of a Change of Control at any time during
the Term as described in Section 7 hereof. 
In such case, Section 7 of this Agreement shall control.


 


(c)           Termination By Executive
for Good Reason.  Executive
has the right, in his reasonable determination at any time during the Term, to
terminate his employment with the Company for Good Reason (as defined in this Section 6(c) below)
by giving written notice to the Company as described in this Section 6(c) below.  Prior to the effectiveness of termination for
Good Reason, the Company shall be given thirty (30) calendar days’ prior
written notice from Executive, specifically identifying the reasons which are
alleged to constitute Good Reason, and an opportunity to cure; provided, however, that
Executive shall have no obligation to continue his employment with the Company
following such thirty (30) calendar day notice period unless the Company cures
the event(s) giving rise to Executive’s Good Reason notice.  As used in this Section 6(c), the term “Good Reason”  shall
mean and include (i) assignment to Executive of duties materially
inconsistent with Executive’s position, (ii) requiring Executive to move
his place of employment more than 50 miles from his place of employment prior
to such move, or (iii) a material breach by the Company of this Agreement;
provided that in any such case Executive has not consented thereto.


 


If Executive terminates his employment for Good
Reason, the Company’s obligation to Executive shall be limited solely to (i) unpaid
Base Salary plus any accrued but unpaid benefits to the effective date of
termination, and any unpaid bonus earned in accordance with the then applicable
bonus plan or program to the effective date of termination; (ii) severance
in an amount equal to Executive’s then-current Base Salary for a period of
eighteen (18) months; and (iii) if Executive is eligible for and timely
elects COBRA coverage for health insurance coverage, payment of Executive’s
COBRA premiums for the health insurance coverage for a period of up to eighteen
(18) months, payments to be made on a monthly basis when the premiums are
due.  Executive’s rights with regard to
equity incentive awards, including stock options and restricted stock units,
shall be governed by separate applicable agreements entered into between
Executive and the Company.  As a
condition to his receipt of the post-employment payments and benefits under
this Section 6(c), Executive must be in compliance with Section 5 of
this Agreement, and must execute, return, not rescind and comply with a general
release of claims agreement in favor of the Company and related entities and
individuals, within the timeframe and in a form to be prescribed by the
Company.  The severance shall be paid in
equal installments according to the normal payroll schedule, the first payment
to Executive to be made on the next scheduled payroll date that occurs within
ninety (90) days after the date of Executive’s termination of employment,
provided that the Company has received the signed general release of claims
agreement and Executive has not rescinded such agreement within the rescission
period set forth in such agreement. 
Executive shall have no duty to mitigate damages under this Section 6(c) during
the applicable severance period and, in the event Executive shall subsequently
receive income from providing Executive’s services to any person or entity,
including self employment income, or otherwise, then no such income shall in
any manner offset or otherwise reduce the payment obligations of the Company
hereunder.


 


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Notwithstanding anything herein to the contrary, this Section 6(c) shall
not apply if Executive terminates his employment with the Company or a
succeeding entity for Good Reason upon or within one year of a Change of
Control at any time during the Term as described in Section 7 hereof.  In such case, Section 7 of this
Agreement shall control.


 


Executive has the right, at any time during the Term,
to terminate his employment with the Company without Good Reason (as defined
above) by giving written notice to the Company, which termination shall be
effective sixty (60) calendar days from the date of such written notice.  If Executive terminates his employment
without Good Reason, the Company’s obligation to Executive shall be limited
solely to the payment of unpaid Base Salary accrued up to the effective date of
termination plus any accrued but unpaid bonus and benefits.


 


(d)           Termination Upon
Disability.  The Company shall
have the right, at any time during the Term, to terminate Executive’s
employment if, during the term hereof, Executive becomes physically or mentally
disabled, whether totally or partially, as evidenced by the written statement
of a competent physician licensed to practice medicine in the United States who
is mutually acceptable to the Company and Executive, so that Executive is
unable to perform the essential functions of his job duties hereunder, with or
without reasonable accommodation, for (i) a period of three (3) consecutive
months, or (ii) for shorter periods aggregating ninety (90) calendar days
during any twelve-month period.  If the
Company terminates Executive’s employment under this Section 6(d), the
Company’s obligation to Executive shall be limited solely to the payment of
unpaid Base Salary to the effective date of termination, plus any accrued but
unpaid benefits to the effective date of termination, and any unpaid bonus
earned in accordance with the then applicable bonus plan or program to the
effective date of termination.


 


(e)           Termination upon Death.  If Executive dies during the Term, this
Agreement shall terminate, except that Executive’s legal representatives shall
be entitled to receive the Base Salary and other accrued benefits earned up to
the date of Executive’s death.


 


7.             Change of Control.


 


(a)           Anything in this Agreement to the
contrary notwithstanding, if, upon or within one year of a Change of Control
(as defined below) occurring at any time during the Term, the Company or a
succeeding entity terminates Executive without Cause (as defined above) or the
Executive terminates his employment for Good Reason (as defined in Section 6(c) above),
the Company or the succeeding entity’s obligation to Executive shall be (i) unpaid
Base Salary, bonus and benefits accrued up to the effective date of
termination, (ii) a lump sum payment equal to Executive’s then-current
Base Salary for a period of thirty-six (36) months, and (iii) if Executive
is eligible for and timely elects COBRA coverage for health insurance coverage,
payment of Executive’s COBRA premiums for health insurance coverage for a
period of up to eighteen (18) months, payments to be made on a monthly basis
when the premiums are due.  In the event
of a without Cause Change of Control termination as described herein, these
payments shall be in lieu of, and not in addition to, any severance pay or
benefits set forth in Section 6(b) of this Agreement.  Notwithstanding anything to the contrary
contained herein or in any award agreement between Executive and the Company,
in the event of a Change of Control (as defined below), (i) all unvested
awards held by the Executive under the Company’s 2007 Equity Incentive Plan,
including stock options described in Section 3(c) and any other 


 


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subsequent awards, shall
become fully vested upon the Change of Control and, if applicable, immediately
exercisable, (ii) each such award, and each already vested award described
in Section 3(c), which is a stock option shall continue to be exercisable
for the remainder of its term, and (iii) with respect to any award under
the Company’s 2007 Equity Incentive Plan that is subject to the attainment of
performance objectives or specified performance criteria, such performance
objectives and criteria shall be deemed satisfied at the target level and any
performance period shall be deemed to end as of the date of the Change of
Control.  As a condition to his receipt
of the post-employment payments and benefits under this Section 7(a),
other than the vesting of awards described in the preceding sentence, Executive
must be in compliance with Section 5 of this Agreement, and must execute,
return, not rescind and comply with a release of claims agreement in favor of
the Company, related entities and individuals and the succeeding entity, within
the timeframe and in a form to be prescribed by the Company or a succeeding
entity.  The severance shall be paid in a
lump sum within ninety (90) calendar days after the date of Executive’s
termination of employment, provided that the Company has received the signed
general release of claims agreement and Executive has not rescinded such
agreement within the rescission period set forth in such agreement.


 


(b)           Change of Control Defined. 
For purposes of this Agreement, a “Change of Control” shall mean the
occurrence of a “change in the ownership,” a “change in the effective control”
or a “change in the ownership of a substantial portion of the assets” of the
Company during the Term, as determined in accordance with this Section 7(b).  In determining whether an event shall be
considered a “change in the ownership,” a “change in the effective control” or
a “change in the ownership of a substantial portion of the assets” of the
Company, the following provisions shall apply:


 


(i)            A “change in the ownership” of the
Company shall occur on the date on which any one person, or more than one
person acting as a group (other than Tontine Capital Partners, L.P. and its
affiliates), acquires ownership of stock of the Company that, together with
stock held by such person or group, constitutes more than 50% of the total fair
market value or total voting power of the stock of the Company, as determined
in accordance with Treasury Regulation § 1.409A-3(i)(5)(v).  If a person or group is considered either to
own more than 50% of the total fair market value or total voting power of the
stock of the Company, or to have effective control of the Company within the
meaning of clause (ii) of this Section 7(b), and such person or group
acquires additional stock of the Company, the acquisition of additional stock
by such person or group shall not be considered to cause a “change in the
ownership” of the Company.


 


(ii)           A “change in the effective control” of
the Company shall occur on either of the following dates:


 


(A)          The
date on which any one person, or more than one person acting as a group (other
than Tontine Capital Partners, L.P. and its affiliates), acquires (or has
acquired during the 12-month period ending on the date of the most recent
acquisition by such person or persons) ownership of stock of the Company
possessing 40% or more of the total voting power of the stock of the Company,
as determined in accordance with Treasury Regulation § 1.409A-3(i)(5)(vi).  If a person or group is considered to possess
40% or more of the total voting power of 


 


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the stock of the Company, and such person or group acquires additional
stock of the Company, the acquisition of additional stock by such person or
group shall not be considered to cause a “change in the effective control” of
the Company; or


 


(B)           The
date on which a majority of the members of the Board is replaced during any
12-month period by directors whose appointment or election is not endorsed by a
majority of the members of the Board before the date of the appointment or
election, as determined in accordance with Treasury Regulation §
1.409A-3(i)(5)(vi).


 


(iii)          A “change in the ownership of a
substantial portion of the assets” of the Company shall occur on the date on
which any one person, or more than one person acting as a group (other than
Tontine Capital Partners, L.P. and its affiliates), acquires (or has acquired
during the 12-month period ending on the date of the most recent acquisition by
such person or persons) assets from the Company that have a total gross fair
market value equal to or more than 40% of the total gross fair market value of
all of the assets of the Company immediately before such acquisition or
acquisitions, as determined in accordance with Treasury Regulation §
1.409A-3(i)(5)(vii).  A transfer of
assets shall not be treated as a “change in the ownership of a substantial
portion of the assets” when such transfer is made to an entity that is
controlled by the shareholders of the Company, as determined in accordance with
Treasury Regulation § 1.409A-3(i)(5)(vii)(B).


 


In all cases, the
determination of whether a Change of Control has occurred shall be made in
accordance with Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”), and the regulations,
notices and other guidance of general applicability issued thereunder.


 


8.             Code Section 409A.   Notwithstanding
anything herein to the contrary, if any payments to be made, or benefits to be
provided, to Executive hereunder are subject to the requirements of Code Section 409A
and the Company determines that Executive is a “specified employee” as defined
in Code Section 409A as of the date of the termination, then, to the
extent such payments or benefits do not satisfy the separation pay exemption
described in Treasury Regulation § 1.409A-1(b)(9)(iii) or any other
exemption available under Section 409A of the Code (the “Non-Exempt
Payments”), the amount of such Non-Exempt Payments shall not be paid or
commence earlier than the date that is six months after the termination.  Any Non-Exempt Payment not made during the
six month period shall be paid in a lump sum payment on the first day of the
seventh month following termination.


 


9.             Successors; Assignment, Etc.;
Third Party Beneficiaries.


 


(a)           Executive consents to and the Company
shall have the right to assign this Agreement to its successors or
assigns.  All covenants or agreements
hereunder shall inure to the benefit of and be enforceable by or against its
successors or assigns.  The terms “successors”
and “assigns” shall include, but not be limited to, any succeeding entity upon
a Change of Control.


 


(b)           Neither this Agreement nor any of the
rights or obligations of Executive under this Agreement may be assigned or
delegated except as provided in the last sentence of 


 


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this Section 9(b).  This Agreement and all rights of Executive
hereunder shall inure to the benefit of and be enforceable by, and shall be
binding upon, Executive’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees, and legatees.  If Executive should die while any amounts
would still be payable to him hereunder had he continued to live, then all such
amounts (unless otherwise provided herein) shall be paid in accordance with the
terms of this Agreement to the devisee, legatee, or other designee under
Executive’s testamentary will or, if there be no such will, to Executive’s
estate.


 


10.           Notice. 
For purposes of this Agreement, all notices and other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly given when delivered in person or when mailed by United States
registered or certified mail, return receipt requested, first-class postage
prepaid, addressed as follows:


 


	
  If to Executive :

  	
   

  	
  If to the Company :

  
	
   

  	
   

  	
   

  
	
  Mr. Lars Moller

  	
   

  	
  Broadwind Energy, Inc.

  
	
   

  	
   

  	
  47 E. Chicago Avenue, Suite 332

  
	
   

  	
   

  	
  Naperville, IL 60540 

  
	
   

  	
   

  	
  Attn: Chief Executive Officer

  



 


or to such other address
as any party may have furnished to the other in writing in accordance with this
Section 10, except that notices of any change of address shall be
effective only upon actual receipt.


 


11.           Miscellaneous. 
No provision of this Agreement may be modified, waived, or discharged
unless such waiver, modification, or discharge is agreed to in writing signed
by Executive and such officers as may be specifically designated by the
Board.  No waiver by either party hereto
of, or compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of any similar or
dissimilar condition or provision at the same or any other time.  No agreements or representations (whether
oral or otherwise, express or implied) with respect to the subject matter of
this Agreement have been made by either party which are not set forth expressly
in this Agreement or which are not specifically referred to in this
Agreement.  If any term, clause,
subpart, or provision of this Agreement is for any reason adjudged to be
invalid, unreasonable, unenforceable or void, the same will be treated as
severable, shall be modified to the extent necessary to be legally enforceable
to the fullest extent permitted by applicable law, and will not impair or
invalidate any of the other provisions of this Agreement, all of which will be
performed in accordance with their respective terms.  The validity, interpretation, construction, and
performance of this Agreement shall be governed by the laws of the State of
Illinois.


 


12.           Validity. 
If any provision of this Agreement is held to be illegal, invalid, or
unenforceable under any present or future law or court decision, and if the
rights or obligations of the Company and Executive will not be materially and
adversely affected thereby, (a) such provision shall be fully severable
from this Agreement, (b) this Agreement shall be construed and enforced as
if such illegal, invalid, or unenforceable provision had never comprised a part
hereof, (c) the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance 


 


12

















 


herefrom, and (d) in
lieu of such illegal, invalid, or unenforceable provision, there shall be added
automatically as a part of this Agreement a legal, valid, and enforceable
provision as similar to the terms and intent of such illegal, invalid, or
unenforceable provision as may be possible.


 


13.           Counterparts. 
This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original but all of which together shall constitute
one and the same instrument.


 


14.           Litigation. 
The parties agree that the exclusive venue for any litigation commenced
by the Company or Executive relating to this Agreement shall be the state
courts located in DuPage County, Illinois and the United States District
Court, Northern District of Illinois. 
The parties waive any rights to object to venue as set forth herein,
including any argument of inconvenience for any reason.


 


15.           Entire Agreement. 
This Agreement constitutes (i) the binding agreement between the
parties and (ii) represents the entire agreement between the parties and
supersedes all prior agreements relating to the subject matter contained
herein. All prior negotiations concerning Executive’s employment with the
Company have been merged into this Agreement and are reflected in the terms
herein.


 


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IN
WITNESS WHEREOF,
the parties have duly executed and delivered this Agreement as of November 12,
2008.


 


	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lars Moller

  
	
   

  	
  Name:

  	
  Lars Moller

  
	
   

  	
   

  
	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  BROADWIND ENERGY, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J. Cameron Drecoll

  
	
   

  	
  Name:

  	
  J. Cameron Drecoll

  
	
   

  	
  Title:

  	
  Chief Executive Office

  
						



 


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