8-K

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 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)  December 17, 2009   

WINDTAMER CORPORATION

(Exact Name of Registrant as Specified in Its Charter)

New York

(State or Other Jurisdiction of Incorporation)

000-53510	16-1610794
(Commission File Number)	(IRS Employer Identification No.)
6053 Ely Avenue, Livonia, New York	14487
(Address of Principal Executive Offices)	(Zip Code)

(585) 346-6442

(Registrant’s Telephone Number, Including Area Code)

(Former Name or Former Address, if Changed Since Last Report)

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 (see General Instruction A.2. below):

      o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

      o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

      o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

      o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

INFORMATION TO BE INCLUDED IN THE REPORT

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

(c)           On December 17, 2009, the Board of Directors of WindTamer Corporation (the “Company”) appointed Mark Matthews as Vice President of Sales and Marketing of the Company, effective December 17, 2009.  Mr. Matthews, age 37, will report to the Company's President, William A. Schmitz.

In connection with this appointment, the Company entered into an Employment Agreement with Mr. Matthews dated December 17, 2009 (the “Employment Agreement.”), a Stock Option Award Agreement dated December 17, 2009 (the "Stock Option Award Agreement"), and a Stock Award Agreement dated December 17, 2009 (the "Stock Award Agreement").  A copy of the Employment Agreement, the form of the Stock Award Agreement, and the form of the Stock Option Award Agreement are filed herewith as Exhibits 10.1., 10.2, and 10.3 respectively, and are incorporated herein by reference.

The Employment Agreement provides for an initial three year employment term, which term automatically renews for successive one year terms unless terminated by Mr. Matthews or the Company at least sixty days prior to the end of the term or any subsequent renewal term.  Mr. Matthews’ base compensation will be $175,000. In addition to his base salary, Mr. Matthews will receive commission payments equal to 5% of all sales of the Company in 2010, to be adjusted annually by the Chief Executive Officer, with mutually agreed upon margin requirements. Under the terms of the Employment Agreement and Stock Option Award Agreement, Mr. Matthews was also granted stock options to purchase 150,000 shares of the Company's common stock under the Company's 2008 Equity Incentive Plan, which shall vest in three equal installments on the anniversary of his start date, at an exercise price set at the last trading price of the Company's common stock on the OTCBB on December 17, 2009.  Under the terms of the Employment Agreement and Stock Award Agreement, Mr. Matthews was also granted a stock award covering 25,000 shares of common stock under the Company's 2008 Equity Incentive Plan, which shall vest in full January 5, 2010.

Mr. Matthews is subject to a non-competition covenant during the term of his employment and for a period of one (1) year thereafter. Upon termination of Matthews' employment for any reason, he is entitled to receive all unpaid salary, earned bonuses, vacation and other accrued benefits through the date of termination. If Mr. Matthews' employment is terminated without “Good Cause,” as defined in the Employment Agreement, he is also entitled to severance payments in an amount equal to the annual salary at the rate in effect as of the date of termination for the remainder of the term but not less than two times his annual salary, and payment of health insurance premiums for himself and his family for twelve months immediately after termination.

The above description is a summary only and is qualified in its entirety by reference to Exhibits 10.1, 10.2 and 10.3 filed herewith.

There is no arrangement or understanding between Mr. Matthews and any other person, pursuant to which Mr. Matthews is to be selected as an officer of the Company that would require disclosure under Item 401(b) of Regulation S-K. Additionally, there is no family relationship between Mr. Matthews and any other person that would require disclosure under Item 401(d) of Regulation S-K. Mr. Matthews is not a party to any transactions that would require disclosure under Item 404(a) of Regulation S-K.

Mr. Matthews had been previously employed as Vice President of Government and Commercial Sales at Ultralife Corporation (formerly known as Ultralife Batteries Inc., "Ultralife"), where he managed a 15 person direct sales force with over 50 distributors and agents located in six continents. Mr. Matthews joined Ultralife in 2000 and, in addition to Vice President of Government and Commercial Sales has served as Vice President/General Manager of Governmental Products, where he was responsible for all sales and engineering activity in the Government business unit, which accounted for 65% of Ultralife's revenue stream, Director of Sales, Director of Quality and Lead Cell and Battery Designer. Before this, Mr. Matthews served for Saft America from 1997 to 2000 as a lithium sulfur dioxide cell designer, and for Eagle Pitcher from 1995 to 1997 as a thermal battery design engineer. Mr. Matthews has a B.S. in Engineering Management and Chemical Engineering from Missouri University of Science and Technology.

A copy of the press release announcing the appointment of Mr. Matthews as Vice President of Sales and Marketing of the Company is attached hereto as Exhibit 99.1.

With the exception of the Employment Agreement, the Stock Option Award Agreement, and the Stock Award Agreement described above, there is no material plan, contract or arrangement to which Mr. Matthews is a party, or in which he participates, nor has there been any material amendment to any plan, contract or arrangement, by virtue of his appointment as Vice President of Sales and Marketing.

Item 9.01

(d)      Exhibits

Exhibit Number	Description
10.1	Employment Agreement between WindTamer Corporation and Mark Matthews, dated as of December 17, 2009.
10.2	Form of WindTamer Corporation Stock Award Agreement under 2008 Equity Incentive Plan.
10.3	Form of WindTamer Corporation Stock Option Award Agreement with employees/consultants under 2008 Equity Incentive Plan (incorporated by reference herein to Exhibit 10.15 to the Registration Statement on Form S-1 of WindTamer Corporation dated July 16, 2009 (File No. 333-157304)).
99.1	Press Release issued December 17, 2009.

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.

	WINDTAMER CORPORATION
Date:  December 17, 2009	By:	/s/ Gerald E. Brock
		Name:  Gerald E. Brock
		Title:    Chief Executive Officer

EXHIBIT INDEX

Exhibit Number	Description
10.1	Employment Agreement between WindTamer Corporation and Mark Matthews, dated as of December 17, 2009.
10.2	Form of WindTamer Corporation Stock Award Agreement under 2008 Equity Incentive Plan.
10.3	Form of WindTamer Corporation Stock Option Award Agreement with employees/consultants under 2008 Equity Incentive Plan (incorporated by reference herein to Exhibit 10.15 to the Registration Statement on Form S-1 of WindTamer Corporation dated July 16, 2009 (File No. 333-157304)).
99.1	Press Release issued December 17, 2009.

EX-10.1

Exhibit 10.1

EMPLOYMENT AGREEMENT

This EMPLOYMENT AGREEMENT (the “Agreement”) is dated as of December 17, 2009 (the “Effective Date”) between WINDTAMER CORPORATION, a New York corporation (the “Company”), and Mr. Mark Matthews (“Mr. Matthews” or “Executive”).

R E C I T A L S:

 WHEREAS, the Company is in the business of developing, manufacturing, licensing and selling wind turbines;

 WHEREAS, the Company desires to engage Mr. Matthews as its Vice President of Sales and Marketing on the terms and conditions set forth herein;

 WHEREAS, amounts paid pursuant to this Agreement are intended to qualify as performance-based compensation under Section 162(m) of the Internal Revenue Code (“Code”); and

 WHEREAS, Matthews desires to accept such employment on the terms and conditions set forth herein.

P R O V I S I O N S:

 NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties agree as follows:

1.           Employment; Duties.

(a)           The Company hereby agrees to employ Mr. Matthews as its Vice President of Sales and Marketing.  Mr. Matthews hereby accepts such employment.  Mr. Matthews will report to the Company’s President until April 15, 2010, after which Mr. Matthews shall report to the Company’s Chief Executive Officer.  Mr. Matthews will perform those duties and have such authority and powers as are customarily associated with his position of Vice President of Sales and Marketing and such other duties as the President of the Company may reasonably request from time to time.

(b)           Mr. Matthews shall be employed on a full time basis and shall devote substantially all of his professional business time to the performance of his duties.  Mr. Matthews shall be based in the Rochester metropolitan area, or such other mutually agreeable location.

2.           Term.       The term (the “Term”) of this Agreement shall commence on December 17, 2009 (the “Start Date”), and shall continue for three (3) years from the Start Date unless otherwise terminated as provided herein (together with any Renewal Term, as hereafter defined, shall be referred to as the “Term”).   This Agreement shall automatically be extended for successive one (1) year terms pursuant to the terms and conditions of this Agreement (each, a “Renewal Term”), unless otherwise terminated by written notice from one party to the other no less than sixty (60) days prior to the end of the Term or any subsequent Renewal Term.

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3.           Compensation.

(a)           Annual Salary.  In consideration for the services rendered by Mr. Matthews on behalf of the Company during the Term, the Company shall pay Mr. Matthews, commencing on the Start Date, an annual salary of $175,000 (the “Base Salary”), payable in accordance with the Company’s regular payroll practices.  All forms of compensation referred to in this Agreement are subject to withholding for applicable federal, state and local taxes.

(b)           Commission.   In addition to his Base Salary, Mr. Matthews shall receive commission payments equal to five percent (5%) of all sales of the Company recorded during calendar year 2010 with mutually agreed upon margin requirements on such sales.  The commission structure of Mr. Matthews for calendar year 2011 and beyond shall be reasonably adjusted by the Chief Executive Officer of the Company.   Commission payments shall be paid to Mr. Matthews on a quarterly basis via the Company’s regular payroll within two weeks after the Company releases its financial results on Form 10-Q or Form 10-K for the applicable quarter.

(c)           Stock Options. On the Start Date, Mr. Matthews shall be issued pursuant to the Company’s 2008 Equity Incentive Plan stock options to purchase 150,000 shares of the Company’s Common Stock with an exercise price equal to the last trade of the common stock on the Effective Date, which shall vest 50,000 shares on the first anniversary of the Start Date, 50,000 on the second anniversary of the Start Date and 50,000 on the third anniversary of the Start Date.

(d)           Restricted Stock.  On the Start Date, Mr. Matthews shall be issued pursuant to the Company’s 2008 Equity Incentive Plan 25,000 shares of restricted stock which shall vest in full on January 5, 2010.

4.           Benefits.  In addition to the compensation set forth above, the Company shall provide Mr. Matthews with the following benefits during the Term:

(a)           Mr. Matthews shall be entitled to four (4) weeksof vacation during each calendar year (pro-rated for any partial calendar year) that he is employed hereunder during which vacation his annual salary shall be paid in full.  Any vacation not taken by Mr. Matthews shall not carryover into the succeeding year.  All unused and accrued vacation shall be paid to Mr. Matthews (or his estate) upon Mr. Matthews’ termination of employment.  Such vacation may only be taken at such time or times as are not inconsistent with the reasonable business needs of the Company.

(b)           The Company shall provide Mr. Matthews with up to 5 days of paid sick leave each calendar year (pro-rated for any partial calendar year); unused sick days shall not carryover into the succeeding year.  The Company also shall provide Mr. Matthews with holiday pay as provided by the Company to its other executives.

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(c)            The Company shall make available family medical insurance for Mr. Matthews under the medical insurance plan provided to other executives of the Company or a substantially similar plan. In addition, Mr. Matthews and his dependents shall be entitled to participate in such other benefits as may be extended to active employees of the Company and their dependents including retirement, profit-sharing, 401(k), group insurance, hospitalization, medical or other benefits made available by the Company to its employees generally.  Further, in the event that the Company desires to obtain “key man” life insurance on the life of Mr. Matthews during the Term, Mr. Matthews shall cooperate with the Company in obtaining such insurance.

          5.           Expenses.  Mr. Matthews will be entitled to be paid or reimbursed for all expenses reasonably incurred by him in connection with Mr. Matthews's responsibilities to the Company, including, without limitation, for travel, lodging, food, and entertainment.

6.           Confidential Information. Mr. Matthews shall not, during the Term or at anytime during the five (5) years after termination of his employment, disclose, except as required or necessary in the course of his employment by the Company or as otherwise authorized by the Company, any Confidential Information (as defined herein).  “Confidential Information” shall mean any information existing as of the date of this Agreement, or thereafter developed, in which the Company has a proprietary interest, including, but not limited to, information relating to its patents, technology, research and development, technical data, trade secrets, know-how, products, services, finances, operations, sales and marketing, customers and customer information, licenses, orders for the purchase or sale of products, personnel matters and/or other information relating to the Company, whether communicated orally, electronically or in writing, or otherwise obtained byMr. Matthews as a result of his employment, or through observation or examination of the Company’s business.

7.           Non-Competition Covenant; Non Solicitation Covenant.

(a)           During the Term and for a period of one year thereafter, Mr. Matthews agrees that he will not, directly or indirectly (including, without limitation, whether as consultant, an officer, employee or director), engage in any business that manufactures, sells, designs, develops or distributes of wind turbines, or any business similar to the business in which the Company or similar to those operated or provided by the Company at such time.

(b)           Notwithstanding anything herein to the contrary, Mr. Matthews shall not be prevented or limited from (i) investing in the stock or other securities of any corporation whose stock or securities are publicly owned and regularly traded on any public exchange, (ii) serving as a director, officer or member of professional, trade, charitable and civic organizations, or (iii) passively investing (not to exceed being a beneficial owner of more than 1% of the outstanding Common Stock) his assets in such a form and manner as will not conflict with the terms of this Agreement and will not require services (whether as consultant, an officer, employee or director) on the part of Mr. Matthews in the operation of the business of the entities in which such investments are made.

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(c)           In furtherance of the foregoing, Mr. Matthews shall not, during the aforesaid period of non-competition as provided in Section 7(a), directly or indirectly, in connection with any business involved in the manufacture, sale, design, development or distribution of wind turbines, or any business similar to the business in which the Company was engaged, or in the process of developing during Mr. Matthews’s tenure with the Company, solicit any customer or employee of the Company who was a customer or employee of the Company during the tenure of his employment.

(d)           Mr. Matthews agrees that the prohibitions contained herein are reasonable and valuable to the Company, and are express conditions of the Company’s decision to employ him. If any court shall hold that the duration, scope or any other provision of non-competition or any other restriction contained in this Section 7 is unenforceable, it is our intention that same shall not thereby be terminated but shall be deemed amended to delete therefrom such provision or portion adjudicated to be invalid or unenforceable or, in the alternative, such judicially substituted term may be substituted therefore.

8.           Termination of Agreement.  This Agreement shall terminate upon the occurrence of the following events:

(a)           This Agreement shall terminate upon Executive’s death.

(b)           The Company may terminate this Agreement upon Executive’s “total disability” (“Disability”), which shall mean incapacity due to physical or mental illness or disability, which renders him absent, or unable to perform his duties hereunder on a full time basis for a period of six (6) months, whether consecutive or cumulative, within any twelve (12) month period.

(c)The Company may terminate this Agreement for “Good Cause” as defined below upon thirty (30) days prior written notice to Executive, which notice shall specify the reason(s) for termination.  For purposes of this Agreement, “Good Cause” means (i) willful disobedience by the Executive of a material and lawful instruction of the Board of Directors or the Chief Executive Officer of the Company; (ii) conviction of the Executive of any misdemeanor involving fraud or embezzlement or similar crime or any felony; (iii) an order is entered by the Securities and Exchange Commission, a state regulatory agency or an exchange on which the Company’s securities are traded finding that Executive has violated the securities laws; (iv) breach by the Employee of any material term, condition or covenant of this Agreement; (v) excessive absences from work, other than for illness or Disability, in the case of breach which is capable of being cured, is not cured within thirty (30) days after Company has provided Executive with written notice thereof.

(d)Executive may terminate this Agreement upon sixty (60) days prior written notice to the Company.

(e)This Agreement may be terminated upon the mutual agreement of Company and Executive.

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9. Obligations Following Termination of Agreement.

(a)If this Agreement is terminated pursuant to Section 8, the Company shall have no obligation to pay any Severance Payments (as defined below) or benefits to Executive; provided, however, Company shall be obligated to pay Executive (or in the case of his death, his spouse, estate or representative) all unpaid salary, earned bonuses, vacation and other benefits accrued through the date of termination of this Agreement and shall provide such other benefits, such as health insurance continuation in the manner required by Section 4980B of the Code or other applicable law (“COBRA Coverage”).

(b)If this Agreement is terminated by Company without “Good Cause” as defined in Section 8:

(i)Executive shall be paid all unpaid salary, earned bonuses, vacation and other benefits accrued through the date of termination and shall receive such other benefits, as may be required by statute, such as health insurance continuation coverage under COBRA;

(ii)Executive shall receive as severance payment an amount equal to the Executive’s annual salary at the rate in effect as of the date of Executive’s termination for the remainder of the Term; provided, however, the aggregate amount of such severance payments shall not be less than two times the Executive’s annual salary.  Any severance payments are payable on normal pay dates during the remainder of the Term in accordance with the Company’s pay policies in effect prior to termination date.  In addition, for the twelve (12) month period immediately after the termination of this Agreement, Company shall continue to provide and pay the premium for the health insurance provided to Executive (and his family, if applicable) immediately prior to the termination of this Agreement and the Company shall take such actions as are necessary to cause such COBRA Coverage not to be offset by the provision of benefits under this Section 9(b)(ii) and to cause the period of COBRA Coverage under the Company’s health insurance to commence at the end of the twelve (12) month period. The Executive shall be responsible for the payment of any COBRA premium during the subsequent continuation period (collectively, the payments under this clause (ii) are referred to as “Severance Payments”);

(iii)Executive shall not be required to mitigate damages of the amount of any salary continuation payments provided for under this Section by seeking other employment or otherwise, nor shall the amount of any payments provided for under this Section be reduced by any compensation earned by Executive as a result of employment by another employer or by any self employment after the date of termination;

(iv)All options for Company capital stock and restricted stock granted to Executive pursuant to the Company’s 2008 Equity Incentive Plan including, without limitation, those granted pursuant to Section 3(c) hereof, or otherwise, that remain unvested shall immediately vest, and Executive shall have a period of 120 days following termination to exercise his vested options, subject to the provisions of the Company’s 2008 Equity Incentive Plan and applicable IRS regulations (provided that any delays in payment or settlement set forth in such grant or award agreements that are required under Section 409A of the Code shall remain effective).

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(c)Upon the termination of this Agreement for any reason, any and all restrictions (other than restrictions which are the result of applicable Federal securities laws and regulations and those restrictions which Executive has entered into with a third party on a contractual basis) on the transfer of shares of Company’s capital stock then owned by Executive (which shall include any and all option shares unvested at the time of the termination) shall be terminated as of the date of termination of this Agreement.

(d)All of the obligations of the Company set forth in this Section 9 are contingent upon the Executive complying with the provisions of section 6 (Confidential Information) and Section 7 (Non-Competition Covenant; Non Solicitation Covenant).  In the event that Executive does not comply with the aforementioned sections of this Agreement, then Company shall not be obligated to provide Executive with any of the benefits set forth in this Section 9.

(e)Notwithstanding the foregoing provisions of this Section 9 or anything in this Agreement to the contrary, the Medical Benefits that are not non-taxable medical benefits, “disability pay” or “death benefit” plans within the meaning of Treasury Regulation Section 1.409A-1(a)(5) shall be provided and administered in a manner that complies with Treasury Regulation Section 1.409A-3(i)(1)(iv), which requires that (i) the amount of such benefits provided during one taxable year shall not affect the amount of such benefits provided in any other taxable year, except that to the extent such benefits consist of the reimbursement of expenses referred to in Section 105(b) of the Code, a maximum, if provided under the terms of the plan providing such Medical Benefit, may be imposed on the amount of such reimbursements over some or all of the period in which such benefit is to be provided to the Executive, as described in Treasury Regulation Section 1.409A-3(i)(iv)(B), (ii) to the extent that any such benefits consist of reimbursement of eligible expenses, such reimbursement must be made on or before the last day of the Executive’s taxable year following the taxable year in which the expense was incurred and (iii) no such benefit may be liquidated or exchanged for another benefit.

10.           Indemnification. The Company shall, to the maximum extent permitted by law, indemnify and hold harmless Mr. Matthews against any and all damages, liabilities and expenses, including, without limitation, reasonable attorneys’ fees, judgments, fines, expenses, fees, losses, claims, settlements, and other amounts actually and reasonably incurred in connection with any actual or threatened action, suit or proceeding, whether civil, criminal, arbitrational, administrative or investigative, arising by reason of Mr. Matthews’s employment by, or provision of services to, the Company other than the willful violation of law by Mr. Matthews.  The Company agrees to obtain Directors and Officers Liability insurance, and to include Mr. Matthews in the coverage of this policy during the term of this Agreement and for a period of two (2) years thereafter.  The Company shall promptly advance, prior to the final disposition of any proceeding, promptly following request therefor, all fees and expenses incurred by Executive in connection with such action, suit or proceeding upon receipt of an undertaking by or on behalf of Executive to repay said amounts if it shall be determined ultimately that Executive is not entitled to be indemnified under the provisions of this Agreement.

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12.           Work-for Hire.  Except as otherwise may be agreed by the Company in writing, in consideration of the employment of Mr. Matthews by the Company, and free of any additional obligations of the Company to make additional payment to him, Mr. Matthews agrees to irrevocably assign to the Company any and all inventions, software, manuscripts, documentation, improvements or other intellectual property whether or not protected by any state or federal laws relating to the protection of intellectual property, relating to the present or future business of the Company that are developed by Mr. Matthews prior to the termination of his employment with the Company, either alone or jointly with others, and whether or not developed during normal business hours or arising within the scope of his/her duties of employment.  Mr. Matthews agrees that all such inventions, software, manuscripts, documentation, improvement, trade secrets or other intellectual property shall be and remain the sole and exclusive property of the Company and shall be deemed the product of work for hire.  Mr. Matthews hereby agrees to execute such assignments and other documents as the Company may consider appropriate to vest all right, title and interest therein to the Company and hereby appoints the Company as Mr. Matthews’s attorney-in-fact with full powers to execute such document itself in the event Mr. Matthews fails or is unable to provide the Company with such signed documents.  This provision does not apply to an invention for which no equipment, supplies, facility, or intellectual property or trade secret information of the Company was used and which was developed entirely on Mr. Matthews’ own time, unless (a) the invention relates (i) to the business of the Company, or (ii) to the Company’s actual or demonstrably anticipated research or development, or (b) the invention results from any work performed by Mr. Matthews for the Company.

13.           Miscellaneous.

(a)           This Agreement:

(i)           shall constitute the entire agreement between the parties hereto and supersedes all prior agreements, written or oral, concerning the subject matter herein between the Company and the Mr. Matthews and there are no oral understandings, statements or stipulations bearing upon the effect of this Agreement which have not been incorporated herein;

(ii)           may be modified or amended only by a written instrument signed by each of the parties hereto;

(iii)           shall bind and inure to the benefit of the parties hereto and their respective heirs, successors and assigns;

(iv)           may not be assigned by either party without a written agreement signed by all parties hereto.  Any assignment not signed by all parties is null and void; and

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(b)           If any provision of this Agreement shall be held invalid or unenforceable by competent authority, such provision shall be construed so as to be limited or reduced to be enforceable to the maximum extent compatible with the law as it shall then appear.  The total invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted.

(c)           This Agreement shall be construed in accordance with and governed by the laws of the State of New York without reference to conflict of laws principles.  Any litigation involving this Agreement shall be adjudicated in a court with jurisdiction located in Monroe County, New York and the parties irrevocably consent to the personal jurisdiction and venue of such court.

(d)           All notices and other communications under this Agreement must be in writing and must be given by personal delivery or first class mail, certified or registered with return receipt requested, or by overnight currier service and will be deemed to have been duly given upon receipt if personally delivered, five (5) days after mailing, if mailed, or upon delivery if sent by overnight courier service, to the respective persons named below:

If to the Company:

WindTamer Corporation

Attn:  Chief Executive Officer

156 Court Street

Geneseo, NY 14454

If to Mr. Matthews:

8 Chablis Drive

Fairport, NY 14450-4609

Any party may change such party’s address for notices by notice duly given pursuant to this Section.

(e)           This Agreement may be executed simultaneously in one or more counterparts, each one of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  The parties may execute this Agreement by facsimile signature.

(f)           Failure of either party at any time to require performance of any provision of this Agreement shall not limit the party’s right to enforce the provision, nor shall any waiver of any breach of any provision be a waiver of any succeeding breach of any provision or a waiver of the provision itself for any other provision.

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(g)           If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.

(h)           THE PARTIES ACKNOWLEDGE THAT MR. MATTHEWS AND THE COMPANY HAVE EACH BEEN ADVISED THAT IT IS IMPORTANT FOR EACH OF THEM TO SEEK SEPARATE LEGAL ADVISE AND REPRESENTATION IN THIS MATTER.

[Signature Page Follows]

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IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written.

WINDTAMER CORPORATION

By:          /s/ Gerald Brock

Name: Gerald Brock

   Title:   Chief Executive Officer

/s/ Mark Matthews

Mark Matthews

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EX-10.2

Exhibit 10.2

WINDTAMER CORPORAION

2008 EQUITY INCENTIVE PLAN

RESTRICTED STOCK AGREEMENT

Mr. Mark Matthews

8 Chablis Drive

Fairport, NY 14450-4609

This Agreement confirms the grant of Restricted Stock to you effective as of December 17, 2009 (the “Effective Date”) under the WindTamer Corporation 2008 Equity Incentive Plan, as may be Amended and Restated (the “Plan”), upon the terms and conditions described herein.

1.Grant of Restricted Stock.  Pursuant to action of the Compensation Committee of the Board of Directors, WindTamer Corporation (the “Company”) hereby grants you under the Plan an aggregate of 25,000 shares of Restricted Stock of the Company’s Common Stock (the “Restricted Shares”), subject to the terms and conditions hereinafter set forth and as set forth in that certain Employment Agreement, dated as of December 17, 2009, between you and the Company (the “Employment Agreement”). To the extent that there is any inconsistency between the Employment Agreement and the terms of this Agreement, the terms of the Employment Agreement shall govern.

2.Closing.  The transfer of the Restricted Shares shall occur simultaneously with the execution of this Agreement. Concurrently with the execution of this Agreement, the Company may issue one or more certificates in physical form or book entry representing the Restricted Shares (which, in the case of physical certificates, shall be held by the Company pursuant to paragraph 6 below until the applicable Restrictions (as defined in paragraph 3 below) have lapsed).

3.Restrictions.  The Restricted Shares are being awarded to you subject to (i) the transfer and forfeiture restrictions set forth in this paragraph 3 below (the “Restrictions”), which shall lapse after the expiration of the vesting periods described in paragraph 4 below, (ii) satisfaction of the tax withholding requirements set forth in paragraph 8 below, and (iii) compliance with the Company’s Insider Trading Policy.

(a)Transfer.  You may not directly or indirectly, by operation of law or otherwise, voluntarily or involuntarily, alienate, attach, sell, assign, pledge, encumber, charge or otherwise transfer any of the Restricted Shares still subject to Restrictions, except for such assignments as are allowed under the Plan, provided that, in all cases, such transferee executes a written consent to be bound by the terms of this Agreement.

(b)Forfeiture.  Subject to exceptions as may be determined by the Compensation Committee of the Board of Directors, if your continuous employment or consulting relationship with the Company or any majority-owned subsidiary of the Company shall terminate for any reason, all Restricted Shares for which the Restrictions have not lapsed at such time shall be returned to or canceled by the Company, and shall be deemed to have been forfeited by you. Upon a forfeiture of your Restricted Shares, the Company will not be obligated to pay you any consideration whatsoever for the forfeited Restricted Shares.

4.Lapse of Restrictions.

(a)The Restrictions shall lapse to the extent the Restricted Shares have become vested, as follows:  all of the shares shall vest in full on January 5, 2010.

(b)All of the Restricted Shares shall become vested and the Restrictions shall lapse with respect to any unvested Restricted Shares upon a Change in Control (as defined in the Plan).

(c)All of the Restricted shall become vested and the Restrictions shall lapse with respect to any unvested Restricted Shares as provided in Section 9 of the Employment Agreement.

(d)To the extent the Restrictions shall have lapsed under this paragraph 4 with respect to any portion of the Restricted Shares, those shares (“Vested Shares”) will be free of the terms and conditions of this Agreement except those terms and conditions contained in paragraph 8 below; provided, however, that such Vested Shares shall remain subject to the terms and conditions of the Company’s Insider Trading Policy.

5.Adjustments.  The terms “Restricted Shares” and “Vested Shares” shall include any shares or other securities that you receive or become entitled to receive under Section 14 of the Plan as a result of your ownership of the original Restricted Shares.

6.Custody. Any certificates representing the Restricted Shares (other than Vested Shares) shall be deposited with the Company. The Company is hereby authorized to effectuate the transfer into its name of all certificates representing the Restricted Shares that are forfeited or otherwise transferred to the Company pursuant to either paragraph 3 above or paragraph 8 below.

7.Voting and Other Rights.

(a)Upon the registration of the Restricted Shares in your name, you shall have all of the rights and status as a stockholder of the Company with respect to the Restricted Shares, including the right to vote such shares and to receive dividends or other distributions thereon. All such rights and status as a stockholder of the Company with respect to the Restricted Shares shall terminate if the Restricted Shares are forfeited pursuant to either paragraph 3 above or paragraph 8 below.

(b)The grant of the Restricted Shares to you does not confer upon you any right to continue in the employ of the Company.

8.Withholding Taxes.  The award or other transfer of the Restricted Shares, and the lapse of Restrictions on the Restricted Shares, shall be conditioned further on any applicable withholding taxes being paid by you in the form and manner reasonably acceptable to the Company.

9.Incorporation of Plan Provisions.  This Agreement is made pursuant to the Plan and is subject to all the terms and provisions of the Plan as if the same were fully set forth herein. Capitalized terms not otherwise defined herein shall have the meanings set forth for such terms in the Plan. To the extent that there is any inconsistency between this Agreement and the terms of the Plan, the terms of this Agreement shall govern.   To the extent that there is any inconsistency between the Employment Agreement and the terms of the Plan, the terms of the Employment Agreement shall govern.

10.Stock Power.  At the Company’s request, you hereby agree to promptly execute any document, including a stock power endorsed in blank, that is necessary to comply with the terms of this Agreement.

11.Successors.  This Agreement shall be binding upon and inure to the benefit of any successor of the Company and your successors, assigns and estate, including your executors, administrators and trustees.

12.Restriction on Transfer.  Unless and until the shares represented by this award are registered under the Securities Act, all certificates representing the shares and any certificates subsequently issued in substitution therefor and any certificate for any securities issued pursuant to any stock split, share reclassification, stock dividend or other similar capital event shall bear legends in substantially the following form:

“THESE SECURITIES HAVE NOT BEEN REGISTERED OR OTHERWISE QUALIFIED UNDER THE SECURITIES ACT OF 1933 (THE “SECURITIES ACT“) OR UNDER THE APPLICABLE SECURITIES LAWS OF ANY STATE. NEITHER THESE SECURITIES NOR ANY INTEREST THEREIN MAY BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE SECURITIES LAWS OF ANY STATE, UNLESS PURSUANT TO EXEMPTIONS THEREFROM.“

You agree to such transfer restrictions.  The certificates shall bear such other legend or legends as the Company and its counsel deem necessary or appropriate. Appropriate stop transfer instructions with respect to the shares may, at the Company’s discretion, be placed with the Company's transfer agent.

13.Amendment or Modification, Waiver.  No provision of this Agreement may be amended or waived unless such amendment or waiver is agreed to in writing and signed by each party hereto. No waiver by either party hereto of any breach by another party hereto of any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of a similar of dissimilar condition or provision at the same time, any prior time or any subsequent time.

14.Notices.  Each notice relating to this Agreement shall be in writing and delivered in person or by certified mail or overnight delivery to the proper address. Notices to employees sent via e-mail shall be deemed to satisfy the requirements of this paragraph 13. All notices to the Company shall be addressed to it at:

WindTamer Corporation

156 Court Street

Geneseo, NY 14454

Attention: Stock Option and Incentive Plan Administrator

15.Severability.  If any provision of this Agreement or the application of any such provision to any party or circumstances shall be determined by any court of competent jurisdiction to be invalid and unenforceable to any extent, the remainder of this Agreement or the application of such provision to such person or circumstances other than those to which it is so determined to be invalid and unenforceable, shall not be affected thereby, and each provision hereof shall be validated and shall be enforced to the fullest extent permitted by law.

16.Governing Law.  This Agreement shall be construed and governed in accordance with the laws of the state of New York, without regard to principles of conflicts of laws.

17.Headings.  All descriptive headings of sections and paragraphs in this Agreement are intended solely for convenience, and no provision of this Agreement is to be construed by reference to the heading of any section or paragraph.

18.Counterparts.  This Agreement may be executed in counterparts, each of which shall be deemed to be an original but both of which together shall constitute one and the same instrument.

To confirm your acceptance of the foregoing, please sign and date below under “Accepted and Agreed” and return one copy of this Agreement to the Company.

WINDTAMER CORPORATION

By:   

Name:   Gerald Brock

Title:     Chief Executive Officer

ACCEPTED AND AGREED:

Name:  Mark Matthews

Date:     

 4

EX-99.1

Exhibit 99.1

WINDTAMER CORPORATION ANNOUNCES APPOINTMENT OF MARK MATTHEWS AS VICE PRESIDENT OF SALES AND MARKETING

ROCHESTER, NY - (Marketwire - 12/17/09) - WindTamer Corporation ("WindTamer" or the "Company") (OTC.BB:WNDT-News), a developer and manufacture of a patented new wind turbine technology, announced today that Mark Matthews has been appointed Vice President of Sales and Marketing.

Prior to joining WindTamer Corporation, Mr. Matthews was Vice President of Government and Commercial Sales for Ultralife Corporation (NASDAQ: ULBI), where he managed a 15 person direct sales force with over 50 distributors and agents located on six continents.  Prior to that, as Vice President/General Manager of Government and Defense Products at Ultralife, Mr. Matthews was responsible for all sales and engineering activities in the Government/Defense business unit. Mr. Matthews’ previous positions at Ultralife included Director of Sales, Director of Quality and Lead Cell and Battery Designer. During his tenure at Ultralife, starting in August 2000, Mr. Matthews was a key contributor in driving company revenues from $32 million to over $250 million through product design and sales leadership.

Prior to joining Ultralife Mr. Matthews was a lithium sulfur dioxide cell designer from 1997 to 2000 at Saft America and as a thermal battery design engineer for Eagle Picher from 1995 to 1997.

Mr. Matthews holds a B.S. in Engineering Management and Chemical Engineering from Missouri University of Science and Technology.

"Mark Matthews understands energy systems," said William A. Schmitz, President of WindTamer Corporation.  "He has spent his entire career engineering and improving energy systems and finding new ways to solve energy problems for customers.  This is a perfect fit for WindTamer, because we are all about creating sensible value propositions for our customers from an exciting new technology.  When you combine Mark's technical expertise from years of designing energy systems to his proven ability to organize a global sales organization through both direct and distribution partners you have a powerful new element that has just been added to the WindTamer team. In addition, Mark's particular expertise in Governmental sales and his long experience in effectively communicating a new technology's value to the customer will be major factors in driving WindTamer's revenue growth as we bring our patented wind turbine technology to market."

Gerald E. Brock, WindTamer's founder, Chairman, Chief Executive Officer and inventor of the patented WindTamer technology, said, "The addition of Mark Matthews to our management team continues my previously-stated and unwavering commitment to our shareholders to bring a management team to WindTamer with the skills and background to move our company into full-scale manufacturing and sales in 2010 and to make WindTamer what it deserves to be and will be - a worldwide leader in wind turbine sales."

Mark Matthews said, "The WindTamer turbine is a superior product that performs at a higher level than anything else on the market. I am extremely enthusiastic about the opportunity to communicate the value of the WindTamer technology to the energy marketplace."

About WindTamer Corporation

 WindTamer Corporation (http://www.windtamerturbines.com) is a developer and manufacturer of highly efficient wind power generators that utilize our Patented "Fluid-Driven Vacuum-Enhanced Generator" technology for the production of electrical power. Applications of WindTamer turbines include stand-alone and roof-mounted residential; stand-alone and roof-mounted commercial and industrial; wind farms; boat-dock, RV and other recreational applications; portable and transportation; and back-up power sourcing.

Forward-Looking Statements

This press release may contain forward-looking statements based on current expectations that involve a number of risks and uncertainties.  WindTamer Corporation cautions investors not to place undue reliance on forward-looking statements, which reflect WindTamer’s analysis only as of today’s date.  There can be no assurance that such forward-looking statements will prove to be correct, and actual results could differ materially.  WindTamer undertakes no obligation to publicly update forward-looking statements.  Further information on these factors, and other factors that could affect WindTamer’s financial results, is included in WindTamer’s Securities and Exchange Commission filings, including the latest Annual Report on Form 10-K.

Contact:

WindTamer Corporation

Investor Relations

Cherrie Mahon

(585) 243-4040

ircontact@windtamerturbines.com