Exhibit 10.2


 


ENERNOC,
INC.


 


SEVERANCE
AGREEMENT


 


This Severance Agreement
is made as of the 27th day of July, 2009 by and between EnerNOC, Inc., a
Delaware corporation (the “Company”), and Timothy Weller (the “Employee”).


 


WHEREAS, the Employee currently serves as an
executive of the Company; and


 


WHEREAS, the Company and the Employee desire to
provide for severance arrangements for the Employee under certain circumstances
as of the Effective Date;


 


NOW,
THEREFORE, in
consideration of the premises and the mutual promises hereinafter set forth,
the Company and the Employee agree as follows:


 


1.                                      Definitions.  As used in
this Agreement, the following terms shall have the following meanings:


 


1.1.                              “Accrued Base
Compensation”:  all amounts of compensation for services rendered to
the Company that have been earned or accrued through the date of the Employee’s
termination of employment but that have not been paid as of such date including
(i) Base Salary, (ii) reimbursement for reasonable and necessary
business expenses incurred by the Employee on behalf of the Company during the
period ending on such date, and (iii) vacation pay; provided, however, that Accrued
Compensation shall not include any amounts described in clause (i) that
have been deferred pursuant to any salary reduction or deferred compensation
elections made by the Employee.


 


1.2.                              “Agreed Bonus Target”: shall mean the bonus target
amount as established from time to time by the Compensation Committee of the
Company’s Board of Directors (the “Compensation Committee”).


 


1.3.                              “Base Salary”: shall mean the
Employee’s base compensation per annum as established by the Compensation
Committee.


 


1.4.                              “Cause”: (i) willful failure
to perform, or gross negligence in the performance of, the Employee’s duties
for the Company or any of its affiliates; (ii) knowing and material breach
by the Employee of any obligation to the Company or any of its affiliates with
respect to confidential information, non-competition, non-solicitation or the
like; (iii) the Employee’s breach of fiduciary duty, fraud, embezzlement
or other material dishonesty with respect to the Company or any of its
affiliates; or (iv) the Employee’s conviction of, or plea of nolo
contendere to, a felony (other than felonies vehicular in nature) or any other
crime involving moral turpitude; provided, however that with respect to the
grounds set forth in Section 1.4(i), Cause shall not be deemed to exist
until the Employee has been given written notice of the facts or circumstances
allegedly constituting such grounds and, where reasonably subject to cure,
thirty (30) days to cure.


 


1.5.                              “Good Reason”:  (i) a
substantial reduction in the Employee’s then current base salary, without the
Employee’s consent; (ii) material and continuing diminution of the
Employee’s title or the Employee’s responsibilities, duties and authority in
the operation and management of the Company as compared to such title or
responsibilities, duties and authority on the Effective Date, without the
Employee’s consent and (iii) the relocation of the the Employee’s office
more than fifty (50) miles from its location without the Employee’s consent.


 


1.6.                              “Change of Control”:  (i) the
sale of all or substantially all of the assets or issued and outstanding
capital stock of the Company, (ii) merger or consolidation involving the
Company in which stockholders of the Company immediately before such merger or
consolidation do not own immediately after such merger or consolidation capital
stock or other equity interests of the surviving corporation or entity
representing more than fifty percent in voting power of capital stock or other
equity interests of such surviving corporation or entity outstanding
immediately after such merger or consolidation or (iii) a change 


 

















 


of the majority of the members of the board of
directors as a result of a contested election (not through appointment or
election by the shareholders in the ordinary course).


 


1.7.                              “Disability”: a physical or mental
infirmity that has impaired the Employee’s ability to substantially perform his
duties with the Company for six consecutive months.


 


1.8.                              “Effective Date”: shall be July 31,
2009.


 


1.9.                              “Severance Compensation”: 
100% of the Employee’s Base Salary on the effective date of termination and the
Agreed Bonus Target in effect on the effective date of termination.


 


1.10.                        “Stock Award”: shall mean any
grant of equity under the Company’s 2007 Employee, Director and Consultant
Stock Plan or any subsequent stock plan of the Company.


 


2.                                      Payments upon Termination.


 


2.1.                              If the Company terminates
the Employee’s employment without Cause, or the Employee terminates his or her
employment with Good Reason, the Company will pay the Employee an amount equal
to his Severance Compensation in  twelve (12) equal
monthly installments in arrears commencing one month after the date of
termination and shall also pay him, on the date of termination, his Accrued
Base Compensation as of the termination date.  The Company’s obligation to
make such payments shall cease upon the Employee’s material breach of any
written agreement between the Company and the Employee or of any written policy
of the Company by which the Employee is bound, if such breach causes or is
likely to cause material harm to the Company.  All payments to be made
under Section 2.3 shall be made on the same schedule as set forth in this Section 2.1.
In addition, in the event of such a termination without cause or if the
Employee terminates for Good Reason, then to the extent Employee holds stock
options and/or restricted shares in the Company, an additional six (6) months
of vesting shall accelerate on such departure date. Employee would then have 3
business days from such departure date to exercise any accelerated or
previously vested options.


 


2.2.                              If the Company
terminates the Employee’s employment at any time for Cause, or upon the
Employee’s death or Disability, the Company will pay the Employee his Accrued
Base Compensation.


 


2.3.                              Upon any termination
of the Employee’s employment with the Company to which Section 2.1
applies, the Company shall maintain the benefits that the Employee is receiving
as of  the termination date and shall
take such measures as are permissible under its medical, life, and disability
insurance and any other employee benefit plans or programs to continue coverage
or reimbursement for the Employee (and the Employee’s family, if applicable) on
the same terms (including any required contribution by the Employee) as
immediately prior to such termination.  If it is not permissible to
continue any such coverage under any such insurance plans, the Company will pay
the Employee, as additional severance compensation, such amount, net of state
and federal income taxes payable by the Employee with respect thereto, as will
be sufficient for the Employee to obtain such insurance coverage on an
individual basis assuming that the Employee (and each member of the Employee’s
family who is to be covered) is a “standard risk” for insurance purposes. 
The Employee’s rights under this Section 2.3 shall continue only for so
long as the Employee is entitled to receive payments of Severance Compensation
under Section 2.1.


 


3.                                      CHANGE OF CONTROL.


 


3.1.                              In the event of a Change of Control, the
vesting schedule set forth in the Stock Award shall, on the date of the Change
of Control, be accelerated such that all (100%) of the Employee’s options and
restricted shares shall become vested on the closing of such event.


 


3.2.                              If any payment or benefit you would
receive under this Agreement, when combined with any other payment or benefit
you receive pursuant to a Change of Control (“Payment”) would (i) constitute
a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but
for this sentence, be subject to the excise tax imposed by Section 4999 of
the Code (the “Excise Tax”), then such 


 


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Payment shall be either (x) the full amount of
such Payment or (y) such lesser amount (with cash payments being reduced
before stock option compensation) as would result in no portion of the Payment
being subject to the Excise Tax, whichever of the foregoing amounts, taking
into account the applicable federal state and local employments taxes, income
taxes, and the Excise Tax results in your receipt, on an after-tax basis, of
the greater amount of the Payment notwithstanding that all or some portion of
the Payment may be subject to the Excise Tax.


 


4.                                      Mutual Release.  Upon any termination of the
Employee’s employment with the Company to which Section 2.1 applies, the
Employee and the Company shall execute a Mutual Release.  The Employee’s
execution of such Mutual Release shall be a condition precedent to the
effectiveness of Sections 2.1 and 2.2. Such release shall be substantially
similar in terms of substance to the release attached hereto as Exhibit A.


 


5.                                      Employee Agreement.  The Employee
agrees that his Employee Agreement (a copy of which is attached hereto) is in
full force and effect on the date hereof and is not modified or terminated by
any provision of this agreement.  This agreement is referred to in the
Mutual Release as “the Employee Agreement.”


 


6.                                      Miscellaneous.


 


6.1.                            This Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
Commonwealth of Massachusetts.  In the event of any dispute, claim, question, or
disagreement arising from or relating to this agreement or the breach thereof,
the Parties hereto shall attempt to settle the dispute, claim, question, or
disagreement.  To this effect, the Parties shall consult and negotiate
with each other in good faith and, recognizing their mutual interests, attempt
to reach a just and equitable solution satisfactory to both Parties.  If
the Parties do not reach such solution (or agree in writing to mediate the
dispute) within a period of 30 days, then, upon notice by either party to the
other, all disputes, claims, questions, or differences shall be finally settled
by arbitration administered by the American Arbitration Association in
accordance with the provisions of its Employment Dispute Rules and
Mediation Procedures.  The American Arbitration Association shall select
one arbitrator to resolve the dispute and the arbitration shall be held in
Boston, Massachusetts. The arbitrator shall issue a written decision setting
forth in reasonable detail the basis for that decision.


 


The arbitrator shall have no authority to award
punitive or other damages not measured by the prevailing party’s actual
damages, except as may be required by statute.


 


The arbitrator shall have the authority to award to
the prevailing party, if any, as determined by the arbitrator, all of its costs
and fees.  “Costs and fees” mean all reasonable pre-award expenses of the
arbitration, including the arbitrators’ fees, administrative fees, travel
expenses, out-of-pocket expenses such as copying and telephone, court costs,
witness fees, and attorneys’ fees.


 


The
procedures set forth in this paragraph shall be the sole and exclusive
procedures for the resolution of disputes between the Parties arising out of or
relating to this Agreement; provided, however, that a Party may seek a
preliminary injunction or other provisional judicial relief if, in its sole
judgment, such action is necessary.  Despite such action, the Parties
shall continue to participate in good faith in the procedures specified in this
Article.  All applicable statutes of limitations and defenses based upon
the passage of time shall be tolled while the procedures (including optional
mediation) specified in this Article are pending.  The Parties shall
take necessary action that is required to effectuate such tolling.  Each
Party is required to continue to perform its obligations under this Agreement
pending resolution of any dispute arising out of the Agreement unless to do so
would be impossible under the circumstances.  The requirements of this Article shall
not be deemed to constitute a waiver of any right of termination under this
Agreement.


 


6.2.                              This Agreement shall
be binding upon, and shall inure to the benefit of, the parties hereto and
their respective heirs, legal representatives, successors and assigns.


 


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6.3.                              This Agreement may be
amended, modified or supplemented, and any obligation hereunder may be waived,
only by a written instrument executed by the parties hereto.  The waiver
by any party hereto of a breach of any provision of this Agreement shall not
operate as a waiver of any subsequent breach.  No failure on the part of
any party to exercise, and no delay in exercising, any right or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or remedy by such party preclude any other or
further exercise thereof or the exercise of any other right or remedy. 
All rights and remedies hereunder are cumulative and are in addition to all
other rights and remedies provided by law, agreement or otherwise.


 


6.4.                              This Agreement
constitutes the entire agreement between the parties and terminates and
supersedes any and all prior severance agreements and amendments (whether
written or oral) between the parties.  The Employee acknowledges and
agrees that neither the Company, nor anyone acting on its behalf has made, and
in executing this Agreement the Employee has not relied upon, any
representations, promises, or inducements except to the extent the same is
expressly set forth herein.


 


7.                                      409A Compliance.


 


7.1.                              Notwithstanding any other provision with
respect to the timing of payments under this Agreement, if, at the time of your
termination, you are deemed to be a “specified employee” of the Company within
the meaning of Code Section 409A, then limited only to the extent
necessary to comply with the requirements of Code Section 409A, any
payments to which you may become entitled under this Agreement which are
subject to Code Section 409A (and not otherwise exempt from its
application) will be withheld until the first (1st) business day of the seventh
(7th) month following your termination of employment, at which time you shall
be paid an aggregate amount equal to the accumulated, but unpaid, payments
otherwise due to you under the terms of this Agreement.


 


7.2.                              The Company does not guarantee the tax
treatment or tax consequences associated with any payment or benefit set forth
in this Agreement, including but not limited to consequences related to Code Section 409A. 
You and the Company agree to both negotiate in good faith and jointly execute
an amendment to modify this Agreement to the extent necessary to comply with
the requirements of Code Section 409A; provided that no such
amendment shall increase the total financial obligation of the Company under
this Agreement.  In the event that the Company determines in good faith
that it is required to withhold taxes from any payment or benefit already
provided to you, you agree to pay on demand the amount the Company has
determined to the Company.


 


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


 


 


	
   

  	
  ENERNOC, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy G. Healy

  
	
   

  	
   

  	
  Duly authorized by the Board of Directors

  
	
   

  	
   

  
	
   

  	
  /s/ Timothy Weller

  
	
   

  	
  Employee Signature

  
	
   

  	
   

  
	
   

  	
  Timothy Weller

  
	
   

  	
  Printed Name of Employee

  



 


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