Exhibit 10.3


 


EMPLOYMENT AGREEMENT


 


This EMPLOYMENT AGREEMENT (the “Agreement”)
is effective as of June 30, 2008, by and between BROADWIND ENERGY, INC. (the “Company”),
and J.D. Rubin (“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 as Vice President and General Counsel
for 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 hereunder shall commence on June 30,
2008 (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 General Counsel for 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. 
Executive shall receive an initial annual base salary of Two Hundred
Fifteen Thousand US Dollars ($215,000), 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”).


 


(b)                                 Bonus.  Executive has
received a one-time signing bonus of $25,000, less required and authorized
withholding and deductions.  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 75,000 stock options on his first day of
employment with a five-year vesting schedule under the Company’s 2007 Equity
Incentive Plan.  The Company has granted
Executive, on October 17, 2008, restricted stock units under the Company’s
2007 Equity Incentive Plan covering 25,000 shares of Company stock.  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.


 


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.


 


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(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.


 


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, 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


 


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learn this Confidential
Information.  The Company acknowledges
and agrees that Executive has 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).   The Confidentiality obligations of this Section 5
are in addition to and do not detract from Executive’s professional
responsibilities as General Counsel to the Company.


 


(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 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
thereafter, either directly or indirectly, (except as set forth  in Section 5(f)(iii) below) 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.


 


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(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 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.


 


(iii)                               This Section 5 is
meant to comply with Rule 5.6 and other applicable provisions of the
Illinois Rules of Professional Conduct. 
Nothing in this Section 5 shall prevent or restrict Executive from
engaging in the practice of law after resignation or termination of employment.


 


(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


 


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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, 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 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.


 


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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 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


 


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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.


 


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.


 


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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 twenty-four (24) 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 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


 


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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 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


 


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(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 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.


 


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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. J.D. Rubin

  4140 N. Bell St.

  Chicago, IL 60618

  	
   

  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 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.


 


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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 on November 12, 2008, effective as of the
date first above written.


 


	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ J.D. Rubin

  
	
   

  	
  Name: 

  	
  J.D. Rubin

  
	
   

  	
   

  
	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  BROADWIND ENERGY, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J. Cameron Drecoll

  
	
   

  	
  Name:

  	
   J. Cameron
  Drecoll

  
	
   

  	
  Title:

  	
  Chief Executive Officer

  
					



 


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