Exhibit
10.1


 


EMPLOYMENT
AGREEMENT


 


This EMPLOYMENT
AGREEMENT (the “Agreement”) is effective as of July 29,
2009, by and between BROADWIND ENERGY, INC. (the “Company”),
and Stephanie Kushner (“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,
the Company desires to employ Executive and Executive desires to be employed by
the Company; and


 


WHEREAS,
the Company and Executive desire to enter into this Agreement to set forth 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 employ Executive in the position, and with
the title, duties and responsibilities, set forth in Section 2 hereof, and
Executive hereby agrees to be employed by the Company, on the terms and
conditions set forth herein.  This
Agreement and Executive’s employment hereunder shall commence on July 29,
2009 (the “Start Date”), and shall continue
for a period of two years, 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 a financial and business advisor from the Start
Date until August 14, 2009 and, during such time, shall report directly to
the Chief Executive Officer of the Company. 
Beginning as of August 15, 2009 and for the remainder of the Term,
Executive shall serve as Chief Financial Officer for the Company and the principal
financial officer for Securities and Exchange Commission reporting purposes, 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 the position
she holds during the time she holds such 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 her 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 her 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 she
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. 
Executive shall receive an initial annual base salary of Three Hundred
Twenty-Five Thousand US Dollars ($325,000), less required and authorized
withholding and deductions.  Executive’s
salary shall be subject to review and adjustment by the Company at least
annually, and paid in accordance with the Company’s regular payroll schedule as
it applies to salaried employees (“Base Salary”).  Notwithstanding the preceding sentence, in no
event shall Executive’s Base Salary be reduced by the Company without the
Executive’s consent.


 


(b)                                 Bonus. 
Except as provided in the following sentence, Executive will be eligible
for a target annual bonus in an amount equal to 75% of her Base Salary, and
pursuant to such terms, as set forth in the Broadwind Energy Inc.
Executive Short-Term Incentive Plan (the “Incentive Plan”) or other written arrangement
adopted by the Company.  For 2009 only,
Executive shall not be eligible for a bonus under the Incentive Plan but, shall
be eligible for a target bonus of 75% of her Base Salary multiplied by a
fraction, the numerator of which is the number of days she is employed by the
Company during 2009 and the denominator of which is 365, with the actual
payment amount based on individual objectives to be mutually agreed upon by the
Company and the Executive no later than August 31, 2009.  Such bonus shall be paid to Executive no
later than March 15, 2010.


 


(c)                                  Stock. 
The Executive shall be eligible to participate in the Company’s common
stock incentive plan as in effect from time to time.  The Company will
grant Executive 25,000 stock options and 25,000 restricted stock units with a
four-year vesting schedule under the Company’s 2007 Equity Incentive Plan
subject to approval by the Board and the Company’s Equity Awards Policy. 
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 she 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.


 


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


 


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
her 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 her of her 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 she 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
she has returned, or will return before her last day of employment with her
current employer, all property belonging to Executive’s current and previous
employers, including but not limited to any and all confidential information.


 


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 her employment by the
Company, she 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 she 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 her employment with the Company could she have the opportunity to learn
this Confidential Information.


 


(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 her 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 her 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 her 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 her employment with the Company and
for a period of eighteen (18) months thereafter, either directly or indirectly,
engage in, render service or other assistance to, or 


 


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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 her 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 her 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 her
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 her 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
restrictions contained in this Section 5 are reasonable and will not
unduly restrict her in 


 


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securing other employment or income in the event her employment with
the Company ends.  Executive acknowledges
and agrees that she executed this Agreement on or before her first day of
employment with the Company.


 


(g)                                 Injunctive Relief. 
Executive acknowledges and agrees that any breach by her 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 her employment and in consideration of her compensation, stock
option grant, restricted stock unit 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 her 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, provided that the unpaid bonus
for services rendered during the year in which the termination occurs shall not
be less than an amount equal to the product of 75% of the Executive’s Base
Salary multiplied by a fraction, the numerator of which is the number of days
she is employed by the Company during the year in which the termination occurs
and the denominator of which is 365; (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 her 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 amount described in clause (i) of the second sentence of this
paragraph shall be paid within ninety (90) calendar days after the date of
Executive’s termination of employment, and the severance described in clause (ii) of
the second sentence of this paragraph shall be paid in equal installments
according to the normal payroll schedule, the first payment to Executive to 


 


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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, in each case, 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 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 her reasonable
determination at any time during the Term, to terminate her 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 her 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
her place of employment more than 50 miles from her 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 her 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, provided that the unpaid bonus
for services rendered during the year in which the termination occurs shall not
be less than an amount equal to the product of 75% of the Executive’s Base
Salary multiplied by a fraction, the numerator of which is the number of days
she is employed by the Company during the year in which the termination occurs
and the denominator of which is 365; (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 her 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 


 


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prescribed by the Company.  The
amount described in clause (i) of the first sentence of this paragraph
shall be paid within ninety (90) calendar days after the date of Executive’s
termination of employment, and the severance described in clause (ii) of
the first sentence of this paragraph 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, in each
case, 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.


 


Notwithstanding
anything herein to the contrary, this Section 6(c) shall not apply if
Executive terminates her 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 her 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 her 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 her 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, provided
that the unpaid bonus for services rendered during the year in which the
termination occurs shall not be less than an amount equal to the product of 75%
of the Executive’s Base Salary multiplied by a fraction, the numerator of which
is the number of days she is employed by the Company during the year in which
the termination occurs and the denominator of which is 365.


 


(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.


 


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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
Executive terminates her 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, provided that the unpaid bonus for services rendered during the
year in which the termination occurs shall not be less than an amount equal to
the product of 75% of the Executive’s Base Salary multiplied by a fraction, the
numerator of which is the number of days she is employed by the Company during
the year in which the termination occurs and the denominator of which is 365, (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 Executive under the Company’s 2007 Equity Incentive Plan,
including stock options and restricted stock units described in Section 3(c) and
any other 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 her 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 amount described in the first sentence of this paragraph 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:


 


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(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 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


 


11

















 


“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 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 her hereunder had she 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 :

  
	
   

  	
   

  
	
  Ms. Stephanie Kushner

  	
  Broadwind Energy, Inc.

  
	
  124 E. Sixth Street

  	
  47 E. Chicago Avenue, Suite 332

  
	
  Hinsdale, IL 60521

  	
  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.


 


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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 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 July 29,
2009.


 


	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephanie Kushner

  
	
   

  	
  Name:  Stephanie
  Kushner

  
	
   

  	
   

  
	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  BROADWIND ENERGY, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J. Cameron Drecoll

  
	
   

  	
  Name:  J.
  Cameron Drecoll

  
	
   

  	
  Title:    Chief Executive Officer

  



 


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