Exhibit 10.2


 


EXECUTION COPY


 


CONSULTING
AGREEMENT


 


This Consulting Agreement (this “Agreement”) is
entered into as of November 15, 2010 between BROADWIND ENERGY, INC.
(the “Company”), and J. Cameron Drecoll (the “Consultant”).


 


WHEREAS, the Consultant has served as the Chief
Executive officer of the Company since 2007;


 


WHEREAS, the Consultant is resigning his position
with the Company effective as of December 1, 2010 (the “Resignation Date”);
and


 


WHEREAS, the Company desires to obtain the benefit
of the Consultant’s knowledge and experience on and after the Resignation Date
by retaining the Consultant to provide the consulting services described
herein, and the Consultant desires to accept such position, upon the terms and
subject to the conditions set forth herein.


 


NOW, THEREFORE, in consideration of the mutual
promises and agreements contained herein, the adequacy and sufficiency of which
are hereby acknowledged, the Company and the Consultant hereby agree as
follows:


 


1.                                      Term
of Agreement.  The Company
hereby agrees to retain the Consultant as a consultant, and the Consultant
hereby agrees to be retained by the Company, upon the terms and subject to the
conditions hereof for the period commencing on December 1, 2010 (the “Effective
Date”) and ending on the date which is the first annual anniversary of the
Effective Date (the “Consulting Period”), unless earlier terminated pursuant to
Section 5 hereof.


 


2.                                      Consulting
Services.  During the
Consulting Period, the Consultant shall make himself available to perform
consulting services with respect to the businesses conducted by the
Company.  Such consulting services shall
be related to such matters as the then Chief Executive Officer of the Company
may designate from time to time.  The
Consultant shall comply with reasonable requests for the Consultant’s
consulting services and shall devote reasonable time and his reasonable best
efforts, skill and attention to the performance of such consulting services,
including travel reasonably required in the performance of such consulting
services; provided, however, that the Consultant is not expected to devote more
than 20 hours during any calendar month during the Consulting Period to the
performance of such consulting services.


 


3.                                      Independent
Contractor Status.  The Consultant
shall perform the consulting services described in Section 2 hereof as an
independent contractor without the power to bind or represent the Company for
any purpose whatsoever.  The Consultant
shall not, by virtue of being a consultant hereunder, be eligible to receive
any employee benefits for which officers or other employees of the Company are
eligible at any time, other than health care coverage described in Section 4(b).  The Consultant hereby acknowledges his
separate 


 

















 


responsibility for all federal and state withholding
taxes, Federal Insurance Contribution Act taxes and workers’ compensation and
unemployment compensation taxes, if applicable, and agrees to indemnify and
hold the Company harmless from any claim or liability therefor.


 


4.                                      Compensation
and Related Matters.


 


(a)                                  Compensation.  During the Consulting Period, as compensation
for the consulting services to be performed by the Consultant pursuant to Section 2
hereof, the Company shall pay the Consultant a consulting fee at the rate of
one hundred twenty thousand dollars ($120,000) per annum, payable in equal
monthly installments.


 


(b)                                 Health
Insurance.  For a period
of twelve (12) months beginning on the Effective Date, Consultant shall be
entitled to health insurance coverage under the terms and conditions of the
Company’s health insurance plan that may be in effect during such twelve (12)
month period and provided by the Company to its employees generally.  After expiration of such twelve (12) month
period, Consultant shall be eligible for continued coverage in accordance with
part 6 of subtitle B of title I of the Employee Retirement Income Security Act
of 1974, as amended.


 


(c)                                  Expense
Reimbursements.  The Company
shall reimburse the Consultant for all proper expenses incurred by the
Consultant in providing consulting services hereunder.  Any reimbursement (including any advancement)
payable to the Consultant pursuant to this Agreement shall be conditioned on
the submission by the Consultant of all expense reports reasonably required by
the Company under any applicable expense reimbursement policy, and shall be
paid to the Consultant within thirty (30) days following receipt of such
expense reports (or invoices), but in no event later than the last day of the
calendar year following the calendar year in which the Consultant incurred the
reimbursable expense.  Any amount of
expenses eligible for reimbursement during a calendar year shall not affect the
amount of expenses eligible for reimbursement during any other calendar
year.  The right to reimbursement
pursuant to this Agreement shall not be subject to liquidation or exchange for
any other benefit.


 


5.                                      Termination.  This Agreement may be
terminated at any time by the Company upon written notice to the
Consultant.  Unless the Company
terminates this Agreement for breach, upon termination of this Agreement, the
Company shall pay to the Consultant any accrued and unpaid consulting fee
payable to the Consultant pursuant to Section 4(a) hereof and shall
reimburse the Consultant for expenses incurred by the Consultant pursuant to Section 4(c) hereof
prior to the date of such termination.


 


6.                                      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 the Consultant and the Company’s customers and potential customers is a
valuable and legitimate business interest worthy of protection under this
Agreement.  The Consultant acknowledges
and agrees that developing and maintaining business relationships is an
important and essential 


 


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business interest of the
Company.  The Consultant further
recognizes that, by virtue of his prior employment by, and acting as a consultant
for, the Company, he has been, and 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
has gained, and will continue to gain, an intimate knowledge of the Company’s
business and its policies, customers, employees and trade secrets, and of other
confidential, proprietary, 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. 
The Consultant 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.  The Consultant acknowledges and agrees that
only through his prior employment with, and consulting services for, the
Company could he have the opportunity to learn this Confidential Information.


 


(b)                                 Confidential Information.  The Consultant shall not (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 the Consultant 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.  The Consultant further agrees that the
Company has expended considerable time, energy and resources into training its
other employees (“Co-Workers”).  As a
result, during the Consulting Period and for the period beginning on the date
of termination of this Agreement and ending on the later of the one (1) year
anniversary date of such termination and the date that is two (2) years
after the Effective Date, the Consultant 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 twelve (12) month period preceding the end of the
Consulting Period, or (D) assist any other person or entity in connection
with any action described in any of the foregoing clauses (A) through (C).


 


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


 


(i)                                     The Consultant
shall not, during the Consulting Period and for the period beginning on the
date of termination of this Agreement and ending on the later of the one (1) year
anniversary date of such termination and the date that is two (2) years
after the Effective Date, 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 other than the ownership of 5% or less of the shares of a public
company where the Consultant is not active in the day to day management of such
company.


 


(ii)                                  The Consultant
shall not, during the Consulting Period and for the period beginning on the
date of termination of this Agreement and ending on the later of the one (1) year
anniversary date of such termination and the date that is two (2) years
after the Effective Date, either directly or indirectly, (A) solicit, call
on or contact any Customer of 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 or during the Consulting Period,
(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 the
Consulting Period, the Consultant shall not own, or permit ownership by the
Consultant’s spouse or any minor children under the parental control of the
Consultant, 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 the Consulting Period, the Consultant shall not
disparage the Company or any shareholders, directors, officers, employees, or
agents of the Company, and neither the Company nor any of its affiliates shall
disparage the Consultant.


 


(f)                                    Understandings.


 


(i)                                     The provisions
of this Section 6 shall be construed as an agreement independent of any
other claim.  The existence of any claim
or cause of action of the Consultant against the Company, whether predicated on
the Consultant’s prior employment, consulting services hereunder or otherwise,
shall not constitute a defense to the enforcement by the Company of the terms
of Section 6 of this Agreement.  In
any


 


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action
brought by either party under Section 6 of this Agreement, the prevailing
party in such action shall be entitled to recover attorneys’ fees and costs
from the other party, both on trial and appellate levels.  The Consultant waives any right to a jury
trial in any such litigation.


 


(ii)                                  The Consultant
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.  The
Consultant agrees that the restrictions contained in this Section 6 are
reasonable and will not unduly restrict him in securing other employment or
income after the Consulting Period.  The
Consultant acknowledges and agrees that he executed this Agreement on or before
his first day of providing consulting services hereunder.


 


(g)                                 Injunctive Relief.  The
Consultant acknowledges and agrees that any breach by him of any of the
covenants or agreements contained in this Section 6 would give rise to
irreparable injury and would not be adequately compensable in damages.  Accordingly, the Consultant agrees that any
beneficiary of the provisions of this Agreement 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 remedies available.


 


(h)                                 Reformation and Survival.  The Company and the Consultant agree and
stipulate that the agreements and covenants contained in this Agreement are
fair and reasonable in light of all of the facts and circumstances of the
relationship between them.  The Company
and the Consultant acknowledge their awareness, however, that in certain
circumstances courts have refused to enforce certain agreements not to compete.  Therefore, in furtherance of, and not in
derogation of, the provisions of this Section 6, the Company and the
Consultant agree that, in the event a court should decline to enforce one or
more of the provisions of this Section 6 or decide to limit the temporal
or geographic scope of any restriction, then this Section 6 shall be
deemed to be modified or reformed to restrict the Consultant’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 6 shall survive the termination of this
Agreement and the Consultant’s termination of services hereunder, whether
voluntary or involuntary.


 


7.                                      Representations
and Warranties of the Consultant. 
In order to induce the Company to enter into this Agreement with the
Consultant, the Consultant hereby represents and warrants to the Company as
follows:


 


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


 


(b)                                 No
Violations of Law.  The
execution and delivery of this Agreement and the other agreements contemplated
hereby by the Consultant do not, and the performance by the Consultant 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 the Consultant.


 


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


 


(d)                                 No
Conflicting Obligations.  The
Consultant 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 his
obligations hereunder, including but not limited to any duties owed to any
former employers not to compete.  The
Consultant 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.


 


8.                                      Survival.  Sections 6, 7, 8 and 9 of
this Agreement shall survive and continue in full force and effect in
accordance with their respective terms, notwithstanding any termination of the
Consulting Period.


 


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


 


(a)                                  The Consultant 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.


 


(b)                                 Neither this Agreement nor
any of the rights or obligations of the Consultant under this Agreement may be
assigned or delegated except as provided in the last sentence of this Section 9(b).  This Agreement and all rights of the
Consultant hereunder shall inure to the benefit of and be enforceable by, and
shall be binding upon, the Consultant’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees, and legatees.  If the Consultant 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 the Consultant’s testamentary will or, if there be no such will, to the
Consultant’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 the Company, to:


 


Broadwind Energy, Inc.


47 E. Chicago Avenue, Suite 332


Naperville, IL 60540


Attn: Chief Executive Officer


 


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If to the Consultant, to:


 


Mr. J. Cameron Drecoll


 


 


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 the Consultant and
such officers as may be specifically designated by the board of directors of
the Company.  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.  The validity, interpretation, construction,
and performance of this Agreement shall be governed by the laws of the State of
Illinois.  Unless the context otherwise
requires, words using the singular or plural number shall respectively include
the plural or singular number, and pronouns of any gender shall include each
other gender.


 


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 the Consultant 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 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 the Consultant
relating to this Agreement shall be the state courts located in Cook County, Illinois
and the United States District Court, Northern District of Illinois in Cook
County, Illinois.  The parties waive
any rights to object to venue as set forth 


 


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herein, including any argument of inconvenience for
any reason.  In any action brought by
either party under this Agreement, the prevailing party in such action shall be
entitled to recover its attorneys’ fees and costs (including without
limitation, court costs, paralegal fees, expert witness fees and other
customary litigation expense) from the other party, both on trial and appellate
levels.


 


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 the
Consultant’s consulting services for the Company have been merged into this
Agreement and are reflected in the terms herein.  Notwithstanding anything contained
herein, the terms of the Employment Agreement shall continue in effect to the
extent provided therein.


 


IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first written above.


 


	
   

  	
  BROADWIND ENERGY, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephanie K. Kushner

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Stephanie K. Kushner

  
	
   

  	
  Title:

  	
  Executive Vice President and Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  J. CAMERON DRECOLL

  
	
   

  	
   

  
	
   

  	
  /s/ J. Cameron Drecoll

  



 


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