Exhibit 10.2


 


EMPLOYMENT AGREEMENT


 


This EMPLOYMENT AGREEMENT (the “Agreement”)
is effective as of June 30, 2008, by and between BROADWIND ENERGY, INC. (the “Company”),
and Robert Paxton (“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 Senior Vice President/Human
Resources 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 Senior Vice President/Human Resources 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
Forty Five Thousand US Dollars ($245,000), 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 $150,000, 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.


 


(f)                                    Relocation Expenses. 
Executive’s primary residence shall initially be in the Stevensville,
Michigan area; however, Executive’s primary work location shall be the Company’s
offices in Naperville, Illinois.  The
Company will advance and/or reimburse Executive for up to the total sum of
$40,000 for relocation expenses such as reasonable house hunting expenses, real
estate commission, home purchase costs such as mortgage origination fees and
inspection fees, closing fees, relocation-related travel expenses, household
packing, moving, 


 


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storage, related
insurance and other customary costs of such relocation and for up to twelve
(12) months of reasonable temporary housing expenses (or as extended per mutual
agreement between the Company and Executive) in connection with Executive’s
relocation to the Naperville, Illinois area, provided
that such relocation occurs during Executive’s employment with the Company and
not later than twelve (12) to eighteen (18) months (or as extended per mutual
agreement between the Company and Executive) immediately following the Start
Date.  Additional costs above the $40,000
will be reimbursed if approved in writing by the CEO. The amount reimbursed to
Executive for relocation expenses as set forth in this Section 3(f) shall
be grossed up to cover any taxes payment required in connection with the
reimbursement.


 


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


 


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


 


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


 


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


 


(d)                                 No Conflicting Obligations. 
Executive is not under, or bound to be under in the future, any
obligation to any person or entity that is or would be inconsistent or in
conflict with this Agreement or would prevent, limit, or impair in any way the
performance by him of his obligations hereunder, including but not limited to
any duties owed to any former employers not to compete or use or disclose
confidential information.  Executive
represents and agrees that he will not disclose to the Company or use on behalf
of the Company any confidential information or trade secrets belonging to a
third party, including any former employer. 
Executive further represents and agrees that he has returned, or will
return before his last day of employment with his current employer, all
property belonging to Executive’s current and previous employers, including but
not limited to any and all confidential information.


 


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 


 


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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 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).


 


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


 


(d)                                 Non-competition. 
Executive further agrees with the Company to the following
provisions, all of which Executive acknowledges and agrees are necessary to
protect 


 


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


 


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


 


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


 


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


 


(f)                                    Understandings.


 


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


 


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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.


 


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


 


(h)                                 Reformation and Survival. 
The Company and Executive agree and stipulate that the agreements and
covenants contained in this Agreement and specifically of this Section 5
are fair and reasonable in light of all of the facts and circumstances of the
relationship between them.  The Company
and Executive agree and stipulate that Executive has hereby agreed to be bound
to the obligations, restrictions and covenants of this Section 5 as a
condition to his employment and in consideration of his compensation, stock
option grant, 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’ 


 


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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.


 


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 


 


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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 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, 


 


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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.


 


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.


 


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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 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 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 


 


10

















 


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 “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 


 


11

















 


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 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. Robert Paxton 

  3016 Kelltowne Court 

  Naperville, Illinois 60565

  	
   

  	
   

  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 


 


12

















 


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


 


	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Paxton

  
	
   

  	
  Name: Robert Paxton

  
	
   

  	
   

  
	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  BROADWIND ENERGY, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J. Cameron Drecoll

  
	
   

  	
  Name:

  	
  J. Cameron Drecoll

  
	
   

  	
  Title:

  	
  Chief Executive Officer

  
				



 


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