UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): February 15, 2013
UQM Technologies, Inc.
Colorado |
1-10869 |
84-0579156 |
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
4120 Specialty Place
Longmont, Colorado 80504
(Address of principal executive offices, including zip code)
(303) 682-4900
(Registrant's telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
[ ]
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)[ ]
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)[ ]
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))[ ]
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On February 15, 2013, UQM Technologies, Inc. (the "Company") entered into a new employment agreement (the "Agreement") with Jon Lutz, Vice President of Engineering, effective as of August 22, 2012 and terminating August 31, 2015. Mr. Lutz's prior employment agreement expired by its terms on August 21, 2012.
Pursuant to the Agreement, Mr. Lutz shall receive an annual base salary of $204,000 and an annual automobile allowance of $9,720. Mr. Lutz is also eligible to receive a discretionary annual bonus payable in cash based on a target level of 25% of base salary and long-term equity incentive compensation in the form of common stock or options to acquire common stock based on a target level of 50% of base salary, each as determined based on performance goals set by the Company's Compensation Committee.
The Agreement provides that that if Mr. Lutz's employment is terminated (a) by the Company without Cause (as defined in the Agreement), (b) by Mr. Lutz for Good Reason (as defined in the Agreement), or (c) by Mr. Lutz upon retirement after age 62.5 or upon attaining 20 years of service as an officer of the Company, Mr. Lutz shall receive one month's salary for each completed full year of service as an officer of the Company up to a maximum payment of 24 months base salary, or six months' salary, whichever is greater. In addition, if Mr. Lutz terminates his employment voluntarily he is entitled to a severance payment equal to six months salary if he provides at least six months prior written notice or a severance payment equal to two months salary if he provides less than six months written notice.
Upon termination by the Company following a Change of Control of the Company (as defined in the Agreement), Mr. Lutz shall receive a severance payment equal to two times the sum of his base salary and a discretionary cash bonus (based on the average discretionary annual bonus paid for the preceding three fiscal years), prorated for the portion of the fiscal year during which Mr. Lutz was employed prior to termination. If Mr. Lutz dies during the term of the Agreement, his estate shall receive six months salary. If Mr. Lutz's employment is terminated for disability, Mr. Lutz shall receive one month's salary for each completed full year of service as an officer of the Company up to a maximum payment of 24 months base salary and a discretionary cash bonus (comparable to that paid to other executives on a relative basis for the fiscal year during which the disability event occurs) prorated for the portion of the fiscal year during which Mr. Lutz was employed prior to termination.
Under certain conditions specified in the Agreement, all unvested stock option and restricted stock held by Mr. Lutz may become fully vested and he may be entitled to continue to participate in the Company's group health insurance plan (at his cost) until he attains age 65. The Agreement further provides that the Company shall maintain at its expense, life insurance coverage on Mr. Lutz payable to his designees in an amount equal to three times his annual base salary.
The preceding description of the Agreement is qualified in its entirety by reference to a copy of the Agreement which is being filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
Exhibit No. Description
10.1 Employment Agreement dated February 15, 2013.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
UQM TECHNOLOGIES, INC. |
|
Dated: February 19, 2013 |
By: /s/DONALD A. FRENCH |
Donald A. French |
|
Treasurer, Secretary and Chief |
|
Financial Officer |
UQM TECHNOLOGIES, INC.
EMPLOYMENT AGREEMENT
THIS AGREEMENT dated as of February 15, 2013 to be effective as of August 22, 2012, is between UQM Technologies, Inc., a Colorado corporation ("Employer"), and Jon Lutz, a resident of Westminster, Colorado ("Executive").
Recitals
A. Executive and Employer are currently parties to an Employment Agreement, dated August 13, 2010 (the "Prior Agreement"), that expired by its terms on August 21, 2012;
B. Executive and Employer wish to continue Executive's employment under the terms of this Agreement;
Agreement
In consideration of the mutual promises, covenants and conditions hereinafter set forth, Employer and Executive agree as follows:
New Agreement
Employment
Duties
Executive's Performance
Term of Agreement
Compensation; Reimbursement
Base Salary.
Bonus.
Long-term Equity Incentive Compensation
Additional Benefits.
Annual Review of Compensation
Reimbursement
Termination
Termination for Cause.
(ii) For purposes of this Agreement, termination for "Cause" shall include any of the following:
Fraud, malfeasance, or embezzlement against Employer's assets or conviction of any felony;
Except under circumstances of disability contemplated by the provisions of Section 7(f), cessation of Executive's performance of Executive's duties hereunder or deliberate and substantial failure to perform them in a capable and conscientious manner;
Violation of the provisions of Sections 12 or 13; or
Deliberate and substantial breach of Executive's material obligations under any other provision hereof that is not cured within 30 days after notice to Executive of the breach.
Termination Without Cause.
Voluntary Termination.
Voluntary Retirement.
Termination Upon Certain Changes in Control.
(ii) Notwithstanding anything to the contrary herein, if the aggregate amounts payable pursuant to Section 7(e)(i), either alone or together with any other payments which Executive has the right to receive either directly or indirectly from Employer or any of its affiliates, would be subject to an excise tax as an "excess parachute payment" under Section 4999 of the Internal Revenue Code (the "Code"), Executive hereby agrees that such aggregate amounts payable hereunder shall be reduced to an amount that does not exceed 2.99 times Executive's "base amount," as defined in Code Section 280G(b)(3) and the regulations promulgated thereunder. The aggregate amount shall be reduced in the following order: first, the amount determined under Section 7(b)(i)(y), next the amount determined under Section 7(b)(i)(x), and finally, the amount attributable to the acceleration of vesting of options and restricted stock. All determinations of, and reductions in "excess parachute payments" called for in this Section 7(e)(ii) shall be made by Grant Thornton LLP or such other independent public accounting firm with a national reputation as shall be selected by Employer. Employer shall bear all costs associated with obtaining such determinations.
(iii) For purposes of this Agreement, a "Material Change" shall occur if, without Executive's consent:
There is a material diminution in Executive's Base Salary (from the amount in effect on the date of the Change in Control);
There is a material diminution in Executive's authority, duties, or responsibilities;
There is a material diminution in the authority, duties, or responsibilities of the supervisor (the Chief Executive Officer) to whom Executive is required to report;
There is a material diminution in the budget over which Executive retains authority;
There is a material change in the geographic location at which Executive is required to perform services; or
There is any other action or inaction that constitutes a material breach of this Agreement.
The occurrence of any of the conditions constitute a Material Change provided (x) Executive gives written notice to Employer of the existence of the condition giving rise to a Material Change and (y) Employer fails to cure such condition to Executive's reasonable satisfaction within 10 days following the date of Executive's notice.
(iv) "Change in Control Event" means the occurrence of any of the following:
The acquisition by any individual, entity or group (within the meaning of Sections 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 25% of either (1) the then outstanding shares of common stock of Employer (the "Outstanding Company Common Stock") or (2) the combined voting power of the then outstanding voting securities (assuming the conversion of all securities of Employer held by the Person that are convertible into voting securities of Employer) of Employer entitled to vote generally in the election of directors (the "Outstanding Company Voting Securities"); provided, however, that for purposes of this subsection (A), the following acquisitions shall not constitute a Change in Control: (1) any acquisition directly from Employer as authorized by the board of directors of Employer, (2) any acquisition by Employer, including any acquisition which, by reducing the number of shares outstanding, is the sole cause for increasing the percentage of shares beneficially owned by any such Person to more than the applicable percentage set forth above, (3) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Employer or any corporation controlled by Employer or (4) any acquisition by any corporation pursuant to a transaction which complies with clauses (1), (2) and (3) of Section 7(e)(iv)(C).
Individuals who, as of the date hereof, constitute the board of directors of Employer (the "Incumbent Board") cease for any reason within any period of 24 months to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by Employer's stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board, shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the board of directors of Employer.
Consummation by Employer of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of Employer or the acquisition of assets of another corporation (a "Business Combination"), in each case, unless, following such Business Combination, (1) more than 50% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including without limitation, a corporation which as a result of such transaction owns Employer or all or substantially all of Employer's assets either directly or through one or more subsidiaries) is represented by Outstanding Company Common Stock and Outstanding Company Voting Securities, respectively, that were outstanding immediately prior to such Business Combination (or, if applicable, is represented by shares into which such Outstanding Company Common Stock and Outstanding Company Voting Securities were converted pursuant to such Business Combination) and such ownership of common stock and voting power among the holders thereof is in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (2) no Person (excluding any employee benefit plan (or related trust) of Employer or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 20% or more of, respectively, the then outstanding shares of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation except to the extent that such ownership existed prior to the Business Combination and (3) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination.
Approval by the stockholders of Employer of a complete liquidation or dissolution of Employer.
Termination For Disability
Death During Employment
Return of Documents.
Other Benefits.
Section 409A.
Notwithstanding anything in this Agreement to the contrary, Executive shall not be considered to have terminated employment with the Employer for purposes of any payments under this Agreement that are subject to Section 409A until Executive has had a "separation from service" from Employer within the meaning of Section 409A.
Each amount to be paid or benefit to be provided under this Agreement shall be treated as a "separate payment" for purposes of Section 409A.
To the extent required in order to avoid accelerated taxation and penalties, amounts that would otherwise be payable and benefits that would otherwise be provided during the six month period immediately following Executive's separation from service shall instead be paid on the first business day after the date that is six months after Executive's separation from service (or, if earlier, Executive's death).
Payments under Sections 7(b) and (e) are intended to qualify to the maximum extent possible as "short-term deferrals" exempt from the application of Section 409A. Any payments and benefits that do not so qualify are intended to qualify for the Section 409A exemption set forth in Treasury Regulation Section 1.409A-1(b)(9)(iii) (which exempts from Section 409A certain payments made upon an "involuntary separation from service"). To the extent that payments made pursuant to Sections (b) and (e) (including benefits under Section 9(a)) are made upon an "involuntary separation from service" but exceed the exemption threshold set forth in Treasury Regulation Section 1.409A-1(b)(9)(iii), the exemption will be first applied to any continued health and welfare benefits payable (to the extent such benefits are subject to Section 409A and are payable within six months from Executive's separation from service as defined for purposes of Section 409A (the "Delayed Payment Date") and thereafter to any cash payments until the exemption has been applied in full. Any payments under Sections 7(b) and (e) that are not exempted form Section 409A and that are payable prior to the Delayed Payment Date shall be withheld by Employer and paid to Executive on the Delayed Payment Date or as soon thereafter as administratively feasible.
To the extent required to avoid an accelerated or additional tax under Section 409A, amounts reimbursable to Executive under this Agreement shall be paid to Executive on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits to Executive) during one year shall not affect amounts reimbursable or provided in any subsequent year.
Nothing in this Section shall prohibit Employer or Executive from making use of any Section 409A exemption that may be applicable to a payment or benefit under this Agreement.
Employer makes no representation that any or all of the payments described in this Agreement will be exempt from or comply with Section 409A. Employee acknowledges that Employer has advised Employee to seek his own counsel with respect to the federal, state, or local tax treatment of any payments or benefits under this Agreement, including the treatment of payments under Section 409A.
Paid Time Off
Insurance for the Benefit of Executive
Medical Insurance.
Life Insurance.
Insurance for the Benefit of Employer
Representation and Warranty
Restrictive Covenant
Non-Competition.
Non-Solicitation.
Confidentiality
Definitions
(i) "Inventions" shall mean all inventions, improvements, modifications, and enhancements, whether or not patentable, made by Executive within the scope of Executive's duties during Executive's employment by Employer.
(ii) "Confidential Information" shall mean Employer's proprietary know-how and information disclosed by Employer to Executive or acquired by Executive from Employer during Executive's employment with Employer about Employer's plans, products, processes and services, which Employer protects against disclosure to third parties. Confidential Information shall not include Executive's general knowledge and experience possessed prior to or obtained during his employment with Employer.
Restrictions on Disclosure
(ii) The restrictions on disclosure and use set forth herein shall not apply to any Confidential Information which:
at the time of disclosure to Executive by Employer is generally available to the public or thereafter becomes generally known to the public, through no fault of Executive;
was known by Executive prior to his employment with Employer;
Executive at any time receives from a third party not under any obligation of secrecy or confidentiality to Employer;
Employer discloses to a third party not under any obligation of secrecy or confidentiality to it; and
Executive is requested or required to disclose pursuant to a subpoena or order of a court or other governmental agency, in which case Executive shall notify Employer as far in advance of disclosure as is practicable.
Obligations Regarding Inventions.
Remedies
Property of Employer
Resolution of Disputes
Notices
Miscellaneous Provisions
This Agreement contains the entire agreement between the parties and supersedes all prior agreements and it shall not be amended or otherwise modified in any manner except by an instrument in writing executed by both parties.
Neither this Agreement nor any rights or duties under this Agreement may be assigned or delegated by either party unless the other party consents in writing.
Except as otherwise provided herein, this Agreement shall be binding upon the inure to the benefit of the parties and their respective heirs, personal representatives, successors and assigns.
This Agreement has been entered into in Colorado and shall be governed by the laws of that state.
In fulfilling their respective obligations under this Agreement and conducting themselves pursuant to it, each party shall act reasonably and in good faith.
If any provisions of this Agreement shall be held to be invalid or unenforceable for any reason, the invalid or unenforceable provision shall be deemed severed from this Agreement and the balance of this Agreement shall remain in full force and effect and be enforceable in accordance with its terms.
To the extent necessary, the provisions of this Agreement shall be construed and administered in compliance with the requirements of Code section 409A and the regulations and any other guidance promulgated thereunder.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written.
EXECUTIVE: |
|
/s/JON LUTZ | |
Jon Lutz |
|
EMPLOYER: |
|
UQM TECHNOLOGIES, INC.
|
|
By: |
/s/DONALD A. FRENCH |
Donald A. French, Treasurer |