EMPLOYMENT AGREEMENT
Exhibit 10.1
THIS
EMPLOYMENT AGREEMENT (the “Agreement”), is entered into
by and between Mr. Xxx Xxxxx (“Employee”), and
LightPath Technologies, Inc., a Delaware corporation, having a
principal address of 0000 Xxxxxxxxxx Xxxx Xx., Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000 (“Company”) and is effective as of the
date Employee and the Company execute this Agreement, whichever
date is latest (“Effective Date”).
RECITALS
Company
desires to employ Employee in the capacity described below, on the
terms and conditions, and subject to the rights of termination
hereinafter set forth, and Employee is willing to accept such
employment on such terms and conditions.
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter
set forth, Employee and Company have agreed and do hereby agree as
follows:
AGREEMENT
1.
Duties:
Company hereby
employs, engages and hires Employee as Chief Executive Officer, and
Employee hereby accepts and agrees to such hiring, engagement, and
employment. Employee agrees to perform any and all duties and to
assume any and all responsibilities that may be assigned from time
to time by the Board of Directors of Company.
a.
Employee will
devote Employee’s full time, energy, and skill to the
performance of duties for Company and for the benefit of the
Company, reasonable vacations authorized by the Board of Directors
and reasonable absences because of illness excepted. Employee also
will exercise due diligence and care in the performance of
Employee’s duties to Company under this Agreement. Employee
shall render services to Company and perform duties at such place
or places in as Company shall require in accordance with its best
interests, needs, business and opportunities.
b.
During
Employee’s employment with Company, Employee shall not enter
into the services of or be employed in any capacity or for any
purposes whatsoever, whether directly or indirectly, by any person,
firm, corporation or entity other than Company, and will not,
during said period of time, be engaged in any business, enterprise
or undertaking other than employment by the Company without the
prior written consent of the Company.
c.
Employee
acknowledges and agrees that as Chief Executive Officer he will be
subject to the various policies of Company including, but not
limited to, the Code of Business Conduct and Ethics, the Code of
Business Conduct and Ethics for Senior Financial Officers, and the
Guide for Trading in Securities by Employees, Officers, and
Directors.
d.
Employee
acknowledges and agrees that as Chief Executive Officer he will be
expected to maintain ownership of Company Class A common stock, par
value $0.01 per share (the “Common Stock”), in
accordance with guidelines established by the Board of Directors as
in effect from time to time.
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e.
As soon as
reasonably practicable after the Effective Date of this Agreement,
Company’s Board of Directors shall increase the size of the
board and appoint Employee to fill the resulting vacancy. Employee
shall serve as a Class III director and shall stand for election at
the fiscal 2021 annual meeting of stockholders, which meeting is
expected to be held in November 2020.
2.
Location:
a.
Employee must
relocate Employee’s permanent residence to Orlando, Florida
or its surrounding communities within 4 months of the Effective
Date. Employee will further be required to move Employee’s
immediate family, household goods, and other belongings to
Employee’s new permanent residence within 4 months of the
Effective Date.
b.
Company will
reimburse Employee for actual and reasonable relocation expenses up
to $50,000.00, which will be paid to Employee within a reasonable
amount of time after receiving Employee’s relocation expense
receipts. The total period for relocation reimbursement concludes
on August 1, 2020, however exceptions may be granted by the
Compensation Committee. Company will only reimburse relocation
expenses that are documented with receipts in accordance with
Company policy, including up to 4 months of temporary housing
expenses and periodic travel back to family prior to their
relocation.
c.
Company will pay to
Employee up to $15,000.00 in addition to the reimbursed relocation
expenses to account for federal income taxes incurred by Employee
as a result of the relocation reimbursement. At the discretion of
the Compensation Committee, this additional amount could increase
based upon taxation circumstances Employee may
present.
d.
If Employee leaves
Company for any reason other than death, disability or discharge by
Company within twelve (12) months of the Effective Date, Employee
is responsible to reimburse Company a prorated portion of all
relocation expenses received from Company, including any additional
sums received pursuant to subsection 2(c) above. Repayment can be
made in installments agreed to by Company.
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3.
Employment
Period: This Agreement,
and the benefits offered to Employee herein, are contingent upon
Employee’s successful completion of a background check and
drug screen in accordance with applicable law. Employee’s
employment with Company will be “at will,” meaning that
either Employee or Company will be entitled to terminate the
employment at any time, with or without cause. Any contrary
representations which may have been made to Employee are superseded
by this Agreement. The “at will” nature of the
employment may only be changed in an express written agreement
signed by Employee and the Chairman of the Board of Directors of
Company.
4.
Compensation:
a.
Base Salary
–Company shall pay Employee, and Employee agrees to accept
from the Company in full payment for Employee’s services and
promises to Company (specifically including the covenants set forth
in Sections 6 through 11), a $350,000.00 annual salary (“Base
Salary”) payable in equal bi-weekly installments, or
otherwise in accordance with Company’s normal pay practices
as the same may be altered from time to time by
Company.
b.
Variable
Compensation – During Employee’s employment with
Company, Employee shall be entitled to participate in all bonus,
incentive compensation and performance based compensation plans,
including, but not limited to the LightPath Technologies, Inc. 2018
Stock and Incentive Compensation Plan (“the Plan”), and
other similar policies, practices, programs and arrangements of
Company, now in effect or as hereafter amended or established, on a
basis that is commensurate with his position and no less favorable
than those generally applicable or made available to other
executives of Company. Employee’s participation shall be in
accordance with the terms and provisions of such plans and
programs.
i.
Employee will be
eligible for a one-time bonus of up to $100,000.00, based on
qualitative factors that will be determined by the Compensation
Committee of the Board of Directors within 30 days of the Effective
Date (“Special 2020 Bonus”). Any earned Special 2020
Bonus will be paid in October 2020.
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ii.
As soon as
reasonably practicable after the Effective Date, the Compensation
Committee of the Board of Directors will grant, on a one-time
basis, a restricted stock award (the “Restricted Stock
Award”) consisting of 100,000 shares of Company’s
Common Stock, with 50% of the shares of the Common Stock vesting on
the third anniversary of the Effective Date and the remaining 50%
of the shares of the Common Stock vesting on the fourth anniversary
of the grant date. The Restricted Stock Award shall be in all
respects subject to the Plan and any amendments thereto, and
conditioned upon Employee’s execution of a restricted stock
award agreement evidencing the grant of the Restricted Stock Award
(the “Restricted Stock Agreement”). The terms and
conditions of the vesting of the Restricted Stock Award, including,
if at all, after termination of Employee’s employment or
services, are governed by the Plan and the Restricted Stock
Agreement. As soon as reasonably practicable after the Effective
Date, the Compensation Committee of the Board of Directors also
will grant Employee a stock option (the “Option Award”)
to purchase up to 225,000 shares of the Common Stock at an exercise
price equal to the greater of (i) $1.37 per share or (ii) 115% of
the closing bid price of the Common Stock as reported by The Nasdaq
Capital Market on the grant date, which is expected to occur on the
Effective Date. Fifty-thousand shares of the Common Stock
underlying the stock option will vest on each of the first, second,
and third, anniversaries of the grant date, with the remaining
seventy-five thousand shares of the Common Stock vesting on the
fourth anniversary of the grant date. The stock option will have a
ten-year term, subject to earlier expiration as provided in the
Plan or the Option Agreement, as defined below. The Option Award
shall be in all respects subject to the Plan and any amendments
thereto, and conditioned upon Employee’s execution of a stock
option agreement evidencing the grant of the Option Award (the
“Option Agreement”). The terms and conditions upon
which the Option Award may be exercised, including, if at all,
after termination of Employee’s employment or services, are
governed by the Plan and the Option Agreement.
c.
Withholding Taxes
– All forms of compensation paid or payable to Employee
whether set forth in this Agreement or otherwise are subject to
reduction to reflect applicable withholding and payroll taxes in
accordance with state and federal law.
d.
Reimbursement for
Business Expenses – Employee shall receive reasonable and
customary reimbursement for business expenses incurred on behalf of
Company; provided, however, that Employee shall provide appropriate
receipts and documentation for any such expenses.
e.
Paid Time Off
– Employee shall be entitled to three-weeks, or 120 hours, of
vacation plus 40 hours of sick time annually. All vacation and sick
leave are subject to the terms and conditions established by
Company and applicable law.
f.
Benefits –
Employee will be eligible for Company’s benefit programs in
accordance with the benefit plan documents. Current benefits
include, but are not limited to, health, dental, vision, life, and
long-term disability insurances, FSA (flexible spending account),
HSA (health spending account), and a 401K plan.
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g.
Recovery of
Compensation. - Employee acknowledges and agrees that all or any
portion of an incentive award under the above described bonus and
incentive compensation plans or any future arrangement established
by Company to provide incentive or bonus compensation, whether
payable in cash, Company Common Stock, or other property
(“Award”), is subject to an obligation of repayment by
Employee to Company if the amount of the Award was calculated based
upon the achievement of certain financial results (as reflected in
the financial statements of Company or otherwise) or other
performance metrics that, in either case, were subsequently found
to be materially inaccurate. The amount that shall be repaid by
Employee to Company shall be based on the excess amount paid or
awarded to the Employee under the Award as compared to the amount
that would have been paid or awarded had the material inaccuracy
not occurred. If the Compensation Committee of the Board of
Directors determines that Employee engaged in misconduct,
malfeasance, or gross negligence in the performance of his duties
that either caused or significantly contributed to the material
inaccuracy in financial statements or other performance metrics,
there shall be no time limit on this right of recovery, which shall
apply to all future Awards as well as to any and all pre-existing
Awards that have not yet been determined and paid as of the date of
this Agreement. In all other circumstances, this right of recovery
shall apply to all future Awards as well as to any and all
pre-existing Awards that have not yet been determined and paid as
of the date of this Agreement for a period not exceeding one year
after the date of payment of each such Award. In addition, Employee
hereby agrees that, if he does not promptly repay the amount
recoverable hereunder within thirty (30) days of a demand
therefore, such amount may be withheld from compensation of any
type not yet due and payable to Employee, including, but not
limited to, the cancellation of future Awards, as determined by the
Compensation Committee in its sole discretion. In addition, the
Compensation Committee is granted the discretionary authority to
interpret and enforce this provision as it determines to be in the
best interest of Company and equitable to the parties.
Notwithstanding anything herein, this provision shall not be
Company’s exclusive remedy with respect to such matters. In
addition, the parties agree that Company may unilaterally amend
this provision at any time to comply with applicable law or
securities exchange listing rules, as the same may be in effect
from time to time during Employee’s employment with Company
and for any relevant period thereafter.
5.
Termination:
a.
Employment by the
Company is “at-will,” meaning Company may terminate
Employee’s employment with Company at any time and for any
reason not prohibited by law. Similarly, Employee may voluntarily
resign from employment with Company at any time and for any reason.
All of Employee’s rights and all of Company’s
obligations hereunder shall terminate effective on the last date of
Employee’s employment. Additionally, any position Employee
holds as an officer or director of Company or any of its
affiliates, and/or any position as a member of any committees of
the Board of Directors of Company or any of its affiliates shall be
deemed to have ended by resignation effective as of
Employee’s date of termination from employment with Company.
Notwithstanding the foregoing, Employee’s obligations and
Company’s rights under Sections 6 through 11 of this
Agreement shall survive the termination of this Agreement and
Employee shall be entitled to receive the unpaid portion of any
wages earned up to the date of such termination, including the Base
Salary, and all benefits payable to Employee as a result of such
termination under the terms of Company’s employee benefit
plans.
b.
Upon termination
from employment with Company, Employee may be eligible for a
severance payment in accordance with the terms and conditions of
the Executive Compensation Policy dated August 26, 2019
(“Severance Policy”), and any amendments thereto. If
Employee is terminated without cause by Company, as that term is
defined in the Severance Policy, Employee is eligible for the
greater of either the severance amount due Employee as set forth in
the Severance Policy or a severance payment of up to six months of
Employee’s Base Salary as determined by the Compensation
Committee of the Board of Directors in their sole discretion. In
order to receive any severance payment offered by the Compensation
Committee beyond what is provided in the Severance Policy, Employee
must execute a full general release in favor of
Company.
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c.
The effect of
termination of employment on Employee’s vested or unvested
equity interest shall be governed by the terms of the Plan and the
award agreements issued thereunder.
6.
Proprietary
Information:
a.
Except as may be
required in the course of employment by Company, Employee agrees
that any and all Proprietary Information, as hereinafter defined,
which Employee has made, conceived of, developed or originated,
either individually or jointly with any other person or persons at
any time during the period of employment by Company, whether during
working hours or any other time, which relate in any way to the
business or the type of business now or hereafter engaged in or
contemplated by Company during the period of Employee’s
employment or which result from or may be suggested by any work
Employee does for Company or at Company’s request, shall be
the property of Company. As used herein, “Proprietary
Information” shall mean any and all proprietary property
including but not limited to:
●
Company strategies,
product development plans, marketing plans, product developments,
service developments, processes, practices, customer information,
vendor information, sourcing data and strategies; and
●
Company proprietary
systems and software.
b.
Employee shall
promptly disclose and assign such Proprietary Information to
Company’s representatives and do all such acts, and execute
and deliver all such documents, as may be necessary to vest in
Company the title to all such Proprietary Information and enable
Company to properly prepare and prosecute any and all applications
for patents, trademarks or copyrights thereon as well as all
reissues, renewals and extensions thereof, so that Company shall be
the sole and absolute owner of all right, title and interest in
said proprietary property. It is understood and agreed that the
words “which relate in any way to the business or the type of
business now or hereafter carried on or contemplated by
Company” shall properly cover any reasonable development or
extension of Company’s field of operation. These obligations
shall continue beyond the termination or expiration of
Employee’s employment with respect to inventions, discoveries
and developments conceived or made by Employee during the period of
employment and shall be binding on Employee’s assigns,
executors, heirs, administrators and other legal representatives.
Employee agrees that all correspondence, drawings, reports, ideas,
blueprints, manuals, letters, notes, analyses, notebooks, reports,
charts, programs, proposals or any other documents concerning
Company’s customers or products or processes, whether or not
prepared by and in the course of employment, alone or in
conjunction with others, is the property of Company and upon
termination or expiration of employment for any reason, Employee
shall promptly return to Company any such documents in his
possession, custody or control.
c.
Employee agrees
that Employee will not at any time during or after the termination
or expiration of employment, except as authorized or directed in
writing by Company, use for Employee’s own benefit or the
benefit of a third party, copy, reveal, divulge or make known in
any manner to any person or firm the Propriety Information of
Company or its affiliates.
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7.
Trade
Secrets:
a.
Employee agrees
that Employee will not at any time during or after the termination
or expiration of employment, except as authorized or directed in
writing by Company, use for Employee’s own benefit or the
benefit of a third party, copy, reveal, divulge or make known in
any manner to any person or firm the Trade Secrets of Company or
its affiliates.
b.
For purposes of
this Agreement, “Trade Secrets” shall mean the whole or
any portion of any information, formula, pattern, compilation,
program, device, method, technique, or process, that: (i) derives
independent economic value, actual or potential, from not being
generally known to the public or to other persons who can obtain
economic value from its disclosure or use; and (ii) is the subject
of efforts that are reasonable under the circumstances to maintain
its secrecy. Trade Secrets include any scientific, technical or
commercial information, including any design, procedure, list of
suppliers, list of customers, business code, sales or installation
technique, or improvement thereof.
c.
Employee
understands that if, either during employment or thereafter,
Employee discloses to others, uses for Employee’s own benefit
or for the benefit of any person or entity other than Company,
copies, or makes notes of any Trade Secrets, such conduct will
constitute a breach of the confidence and trust bestowed upon
Employee by the Company and will be a breach of this
Agreement.
d.
Pursuant to the
federal Defend Trade Secrets Act of 2016, Employee shall not be
held criminally or civilly liable under any federal or state trade
secret law for the disclosure of a trade secret that: (i) is made
in confidence to a federal, state, or local government official,
either directly or indirectly, or to an attorney solely for the
purpose of reporting or investigating a suspected violation of law;
or (ii) is made in a complaint or other document filed in a lawsuit
or other proceeding, if such filing is made under seal. Moreover,
if Employee files a lawsuit for retaliation by Company for
reporting a suspected violation of law, Employee may disclose a
trade secret to Employee’s attorney and use the trade secret
information in the court proceeding; provided, however that
Employee: (i) shall file any document containing the trade secret
under seal; and (ii) shall not disclose the trade secret, except
pursuant to a court order.
8.
Restricted
Covenants:
a.
For a period of one
year after Employee’s last day of employment with Company,
Employee agrees that he shall not directly or indirectly solicit or
attempt to solicit from Company or its related entities, or
knowingly employ, retain or use the services of any employee or
independent contractor who was employed or contracted by Company or
its related entities during Employee’s employment with
Company.
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b.
For a period of one
year after Employee’s last day of employment with Company,
Employee agrees that he will not, on behalf of himself or any
person or entity that engages in a Competing Business (as defined
below) or is attempting to engage in a Competing Business, directly
or indirectly solicit, deal with, or provide service to any person,
firm or corporation who or which was a customer of Company at any
time during the period that Employee was employed by
Company.
c.
For a period of one
year after Employee’s last day of employment with Company,
Employee agrees that he will not directly or indirectly have any
involvement, or ownership interest in, or participate in the
financing, operation, management or control of, any person, firm,
corporation or business that engages in a Competing Business. It is
agreed that ownership of no more than one percent (1%) of the
outstanding voting stock of a publicly traded corporation shall not
constitute a violation of this provision.
d.
For the purposes of
these restrictions, a “Competing Business” is a person,
firm, corporation or business that is providing or developing
competing products and/or services in the optics or photonic
solutions industries or another line of products or services that
Company develops or provides during Employee’s employment
with Company.
9.
Return
of Property and Records: On termination of
employment, Employee shall deliver to the Director of Corporate
Human Resources any property of Company in Employee’s
possession or under Employee’s control, including without
limitation, all records, notes, data, memoranda, models, credit
cards, office keys, security access cards, identification cards and
equipment of any nature.
10.
Non-Disparagement: Employee agrees not
to engage in any conduct which is detrimental to the interests of
Company, including, but not limited to, making any statements
disparaging of Company, its products, services, employees, officers
or Board of Directors, to any person or entity, including, but not
limited to, any media.
11.
Cooperation: Employee agrees that
following his termination from employment with Company for any
reason, at Company’s request, he shall reasonably assist and
advise Company in any investigation which may be performed by
Company or any governmental agency and any litigation in which
Company may become involved. Such assistance shall include Employee
making himself reasonably available for interviews by Company or
its counsel, deposition and/or court appearances at Company’s
request. Company shall attempt to schedule such assistance at
mutually convenient times and places, taking into account any
employment constraints that Employee may have. Company shall
reimburse Employee for reasonable expenses, such as telephone,
travel, lodging and meal expenses, incurred by Employee at
Company’s request, consistent with Company’s generally
applicable policies for employee expenses as well as pay Employee a
per-diem amount equal to $1,750.00 for each full business day
Employee is required to provide such cooperation, which per-diem
amount shall be paid to Employee within ten (10) business days
following the last day of the month in which such per-diem amounts
are earned. To the maximum extent permitted by law, Employee agrees
that he will notify the Chairman of the LightPath Board of
Directors if he is contacted by any governmental agency, or by any
person contemplating or maintaining any claim or legal action
against Company, or by any agent or attorney of such person, within
three business days of such contact.
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12.
Waiver
or Modification of Agreement: No waiver or modification of this
Agreement or of any covenant, condition, or limitation herein
contained shall be valid unless in writing and duly executed by the
party to be charged therewith. Furthermore, no evidence of any
modification or waiver shall be offered or received as evidence in
any proceeding, arbitration or litigation between the parties
arising out of or affecting this Agreement or the rights or
obligations of any party hereunder, unless such waiver or
modification is in writing, duly executed as aforesaid. The
provisions of this Section may not be waived except as herein set
forth.
13.
Choice
of Law: This Agreement
and the performance hereunder and all suits, claims, and special
proceedings hereunder shall be construed in accordance with the
laws of the State of Florida. In any action, special proceeding or
other proceeding that may be brought arising out of, in connection
with, or by reason of this Agreement, the laws of the State of
Florida shall be applicable and shall govern to the exclusion of
the law of any other forum, without regard to the jurisdiction in
which the action or special proceeding may be
instituted.
14.
Binding
Effect of Agreement: This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
heirs, successors, assigns and legal representatives.
15.
Invalid
Provision; Severability: The invalidity or
unenforceability of a particular provision of this Agreement shall
not affect the other provisions hereto, and this Agreement shall be
construed in all respects as if such invalid or unenforceable
provisions were omitted, with the exception of Section 8, which may
be revised to the extent it provides Company the maximum
restriction permitted by law or omitted if no such revision is
permitted by law. If any portion of this Agreement is void or
deemed unenforceable for any reason, the unenforceable portion will
be deemed severed from the remaining portions of this Agreement,
which will otherwise remain in full force.
16.
Costs
of Enforcement: In the event either party initiates
action to enforce his, her or its rights hereunder, the
substantially prevailing party shall recover from the substantially
non-prevailing party its reasonable expenses, court costs,
including taxed and untaxed costs, and reasonable attorneys’
fees, whether suit be brought or not (jointly referred as to
“Expenses”). Expenses incurred in enforcing this
Section shall be covered by this Section. For this purpose, the
court is requested by the parties to award actual costs and
attorneys’ fees incurred by the substantially prevailing
party, it being the intention of the parties that the substantially
prevailing party be completely reimbursed for all such costs and
fees. The parties request that inquiry by the court as to the fees
and costs shall be limited to a review of whether the fees charged
and hourly rates for such fees are consistent with the fees and
hourly rates routinely charged by the attorneys for the
substantially prevailing party.
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17.
Assignment:
This Agreement shall be construed as a contract for personal
services by Employee to Company and shall not be assignable by
Employee. This Agreement may be assigned by Company.
18.
Waiver:
No failure of any party to exercise any power given such party
hereunder or to insist upon strict compliance by any party with its
obligations hereunder, and no custom or practice of the parties in
variance with the terms hereof shall constitute a waiver of the
parties’ rights to demand exact compliance with the terms
hereof.
19.
Strict
Construction: This Agreement
was the joint, negotiated product of the parties. Therefore,
neither party shall advance a position that any provision hereof
should be more strictly construed against the other party on the
basis that such other party prepared such provision.
20.
Cumulative
Rights: Unless otherwise provided herein, all
rights, powers and privileges conferred upon the parties by law,
this Agreement or otherwise shall be cumulative.
21.
Counterparts:
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which shall
constitute the same instrument.
22.
Singular/Plural
Feminine/Masculine, Successors or Assigns: All references as used herein shall
include male and female, singular and plural, and successors or
assigns in the use of a corporation, partnership, individual or
entity in any place or places herein in which the context may
require or permit such substitution, substitutions or
designations.
23.
Complete
Agreement: This written Agreement contains the
sole and entire agreement between the parties as to the matters
contained herein and supersedes any and all other agreements
between them and any other document executed by Employee as
contemplated thereby. The parties acknowledge and agree that
neither of them has made any representation with respect to such
matters of this Agreement or any representations except as are
specifically set forth herein, and each party acknowledges that he
or it has relied on his or its own judgment in entering into this
Agreement. The parties further acknowledge that statements or
representations that may have been heretofore made by either of
them to the other are void and of no effect and that neither of
them has relied thereon in connection with his or its dealing with
the other.
[SIGNATURES
ON FOLLOWING PAGE]
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IN
WITNESS WHEREOF, the parties have executed this Agreement effective
as of February 24, 2020.
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“COMPANY”
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LightPath
Technologies, Inc.
|
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By: /s/ Xxxxxx
Xxxx
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Print
Name: Xxxxxx Xxxx
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Title:
Chairman of the Board of Directors
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Date:
February 24, 2020
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“EMPLOYEE”
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/s/ Xxx
Xxxxx
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EMPLOYEE
NAME: Xxx Xxxxx
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Date:
February 14, 2020
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