Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of this 19th day of April, 1998, between LIGHTPATH TECHNOLOGIES, INC., a
Delaware corporation (the "Company"), and Xxxxxx X. Xxxxxx (the "Executive").
RECITALS
A. The Company is engaged, among other things, in the development,
production and marketing of GRADIUM(TM)optical lenses and related products. The
Executive has substantial experience and expertise in managing and operating the
business of the Company.
B. The Company desires to retain the services of the Executive as its
President, Chief Executive Officer and Treasurer, and the Executive desires and
is willing to continue employment with the Company in such capacity.
C. The Company and the Executive desire to embody the terms and
conditions of the Executive's employment in a written agreement, which will
supersede all prior agreements of employment, whether written or oral, between
the Company and the Executive, pursuant to the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of their mutual covenants and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
following meanings:
1.1 "Cause" shall mean a termination of the Executive's employment
during the Term which is a result of (i) the Executive's felony conviction, (ii)
the Executive's willful and detrimental disclosure to third parties of material
trade secrets or other material confidential information related to the business
of the Company and its subsidiaries, or (iii) the Executive's willful and
continued failure substantially to perform the Executive's duties with the
Company (other than any such failure resulting from the Executive's incapacity
due to physical or mental illness or any such actual or anticipated failure
resulting from a resignation by the Executive for Good Reason) after a written
demand for substantial performance is delivered to the Executive by the Board,
which demand specifically identifies the manner in which the Board believes that
the Executive has not substantially performed his duties, and which performance
is not substantially corrected by the Executive within ten (10) days of receipt
of such demand. For purposes of the previous sentence, no act or failure to act
on the Executive's part shall be deemed "willful" unless done, or omitted to be
done, by the Executive not in good faith and without reasonable belief that the
Executives action or omission was in the best interest of the Company.
Notwithstanding the foregoing, the Executive shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to the
Executive a copy of a resolution duly adopted by the affirmative vote of not
less than three-fourths (3/4ths) of the entire membership of the Board at a
meeting of the Board called and held for such purpose (after reasonable notice
to the Executive and an opportunity for the Executive, together with his
counsel, to be heard before the Board), finding that in the good faith opinion
of the Board the Executive was guilty of conduct set forth above in clause (i),
(ii) or (iii) of the first sentence of this section and specifying the
particulars thereof in detail.
1.2 "Change in Control" shall mean a change in control of the Company
of a nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14a promulgated under the Exchange Act, whether or
not the Company is then subject to such reporting requirement; provided,
however, that, anything in this Agreement to the contrary notwithstanding, a
Change in Control shall be deemed to have occurred if:
(a) any individual, partnership, firm, corporation, association,
trust, unincorporated organization or other entity or person, or any syndicate
or group deemed to be a person under Section 14(d)(2) of the Exchange Act, is or
becomes the "beneficial owner" (as defined in Rule l3d-3 of the General Rules
and Regulations under the Exchange Act), directly or indirectly, of securities
of the Company representing forty percent (40%) or more of the combined voting
power of the Company's then outstanding securities entitled to vote in the
election of directors of the Company;
(b) during any period of two (2) consecutive years (not including
any period prior to the execution of this Agreement) individuals who at the
beginning of such period constituted the Board and any new directors, whose
election by the Board or nomination for election by the Company's stockholders
was approved by a vote of at least three-fourths (3/4ths) of the directors then
still in office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved (the
"Incumbent Directors"), cease for any reason to constitute a majority thereof;
(c) there occurs a reorganization, merger, consolidation or other
corporate transaction involving the Company (a "Transaction"), in each case,
with respect to which the stockholders of the Company immediately prior to such
Transaction do not, immediately after the Transaction, own more than fifty (50%)
of the combined voting power of the Company or other corporation resulting from
such Transaction;
(d) all or substantially all of the assets of the Company are
sold, liquidated or distributed; or
(e) there is a "change in control" of the Company within the
meaning of Section 280G of the Code of Regulations.
1.3 "Code" shall mean the Internal Revenue Code of 1986, as amended,
and any successor provisions thereto.
1.4 "Common Stock" shall mean shares of any class of common stock of
the Company.
1.5 "Disability" shall mean (i) the Executive's incapacity due to
physical or mental illness which causes him to be absent from the full-time
performance of his duties with the Company for three (3) consecutive months or
for ninety (90) days or more in any twelve month (12) period, and (ii) the
Executive's failure to return to full-time performance of his duties for the
Company within thirty (30) days after written Notice of Termination due to
Disability is provided by the Company to the Executive. Any question as to the
existence of the Executive's Disability upon which he and the Company cannot
agree shall be determined by a qualified independent physician selected by the
Executive (or, if the Executive is unable to make such selection, such selection
shall be made by any adult member of the Executives immediate family), and
approved by the Company. The determination of such physician made in writing to
the Company and to the Executive shall be final and conclusive for all purposes
of this Agreement.
1.6 "Good Reason" shall mean a resignation of the Executive's
employment during the Term as a result of any of the following:
(a) A meaningful and detrimental alteration in the Executive's
position, his titles, or the nature or status of his responsibilities (including
the Executive's reporting responsibilities) from those previously in effect;
(b) A reduction by the Company in the Executive's annual Base
Salary as set forth herein or as the same may be increased from time to time
thereafter, except pursuant to a salary reduction program as described in
Section 3. 1, or, a failure by the Company to increase the Executive's salary at
a rate commensurate with that of other key executives of the Company;
(c) The failure by the Company to continue in effect any
compensation plan in which the Executive participates unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan) has been
made with respect to such plan or the failure by the Company to continue the
Executive's participation therein
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on at least as favorable a basis, both in terms of the amount of benefits
provided and the level of the Executive's participation relative to other
participants;
(d) The failure by the Company to continue to provide the
Executive with fringe benefits and arrangements (including, without limitation,
life insurance, health, medical, dental, accident and disability plans and
programs, income tax services, car allowances and other fringe benefits) at
least as favorable in the aggregate to those fringe benefits and arrangements
that the Executive previously enjoyed, or the failure by the Company to provide
the Executive with the number of paid vacation days to which the Executive is
entitled on the basis of years of service with the Company in accordance with
the Company's normal vacation policy previously in effect.
(e) Any termination of the Executive's employment which is not
effected pursuant to the terms of this Agreement; or
(f) A material breach by the Company of the provisions of this
Agreement; provided, however, that an event described in the above clauses,
shall not constitute Good Reason unless it is communicated by the Executive to
the Company in writing and is not corrected by the Company in a manner which is
reasonably satisfactory to the Executive (including full retroactive correction
with respect to any monetary matter) within ten (10) days of the Company's
receipt of such written notice from the Executive.
1.7 "Involuntary Termination" shall mean (i) the Executives termination
of employment by the Company and its subsidiaries during the Term other than for
Cause or Disability or (ii) the Executives resignation of employment. with the
Company and its subsidiaries during the Term for Good Reason.
1.8 "Retirement" shall mean normal retirement at age 65 or in
accordance with retirement rules generally applicable to the Company's senior
executives.
ARTICLE 2
DUTIES AND TERM
2.1 Employment.
(a) The Executive shall have such duties and responsibilities as
shall be assigned to the Executive from time to time by the Board of Directors
of the Company (the "Board") in the Executive's capacity as the President, Chief
Executive Officer and Treasurer of the Company and as is consistent with the
Bylaws of the Company.
(b) During the period of his employment hereunder, the Executive
shall devote substantially all of his business time, attention, skill and
efforts to the faithful performance of his duties hereunder; provided, however,
that the Executive may serve or continue to serve on the board of directors or
hold other offices or positions in companies or organizations if they involve no
conflict of interest with the interests of the Company and may engage in
customary professional activities which in the judgment of the Board will not
materially affect the performance by the Executive of his duties hereunder. The
Executive has disclosed to the Board all material business ventures in which he
is currently involved, and, subject to approval by the Board (after written
notice to the Board), may in the future have other business investments and
participate in other business ventures which may, from time to time, require
portions of his time, but shall not interfere with his duties hereunder.
2.2 Term. The term of this Agreement shall commence on the date first
written above and shall continue, unless sooner terminated, for a period of
three (3) years (the "Initial Term"). Thereafter, the term of this Agreement
shall automatically be extended for successive one (1) year periods ("Renewal
Terms") unless either the Board or the Executive gives written notice to the
other at least ninety (90) days prior to the end of the Initial Term or any
Renewal Term, as the case may be, of its or his intention not to renew the term
of this Agreement. The Initial Term and any Renewal Terms of this Agreement
shall be collectively referred to as the "Term."
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ARTICLE 3
COMPENSATION
3.1 Base Salary. Subject to the further provisions of this Agreement,
the Company shall pay the Executive during the Term of this Agreement a base
salary at an annual rate of not less than $132,000 (the "Base Salary"). In
addition, each year on the anniversary of this Agreement, the Executive will
receive an incentive stock option to purchase no less than 50,000 shares of the
Company's Class A Common Stock, 50% of which will vest immediately upon grant
and the remaining 50% of which will vest on the date which is twelve (12) months
from the date of grant. All of such options shall be issued pursuant to the
terms and conditions of the Company's then existing stock option plans, adopted
for such purpose. The Base Salary shall be reviewed at least annually by the
Board and the Board may, in its discretion, increase the Base Salary. The Base
Salary of the Executive shall not be decreased at any time during the term of
this Agreement from the amount of Base Salary then in effect, except in
connection with across-the-board salary reductions similarly affecting all
senior executives of the Company. Participation in deferred compensation,
discretionary bonus, retirement, stock option and other employee benefit plans
and in fringe benefits shall not reduce the Base Salary payable to the Executive
under this Section 3. 1. The Base Salary under this Section 3.1 shall be payable
by the Company to the Executive not less frequently than monthly.
3.2 Discretionary Bonuses. Subject to the further provisions of this
Agreement, during the Term of this Agreement the Executive shall be entitled to
participate in an equitable manner with all other senior executives of the
Company in such discretionary bonuses, including, but not limited to, bonuses
provided pursuant to any management bonus plan that the Company may adopt (based
upon the performance of the participant and the Company), as may be authorized
and declared by the Board to the Company's senior executives. Nothing in this
section shall be deemed to limit the ability of the Executive to be paid and
receive discretionary bonuses from the Company, based solely on the Executive's
performance, without regard to the payment of discretionary bonuses to any other
officers of the Company.
3.3 Participation in Retirement and Employee Benefit Plans: Fringe
Benefits. The Executive shall be entitled to participate in all plans of the
Company relating to stock options, stock purchases, pension, thrift, profit
sharing, life insurance, hospitalization and medical coverage, disability,
travel or accident insurance, education or other retirement or employee benefits
that the Company has adopted or may adopt for the benefit of its senior
executives. In addition, the Executive shall be entitled to participate in any
other fringe benefits, such as club dues and fees of professional organizations
and associations, which are now or may become applicable to the Company's senior
executives, and any other benefits which are commensurate with the duties and
responsibilities to be performed by the Executive under this Agreement. The
Executive shall, during the Term of his employment hereunder, continue to be
provided with benefits at a level which shall in no event be less in any
material respect than the benefits available to the Executive as of the date of
this Agreement. Notwithstanding the foregoing, the Company may terminate or
reduce benefits under any benefit plans and programs to the extent such
reductions apply uniformly to all senior executives enabled to participate
therein, and the Executive's benefits shall be reduced or terminated
accordingly.
3.4 Vacation. The Executive shall be entitled to a vacation during each
year of the employment term, without diminution of his/her salary in accordance
with the Company's current vacation policy.
ARTICLE 4
TERMINATION OF EMPLOYMENT
4.1 Death or Retirement of Executive. This Agreement shall
automatically terminate upon the death or Retirement of the Executive.
4.2 By the Executive. The Executive shall be entitled to terminate this
Agreement by giving written notice to the Company:
(a) at least ninety (90) days prior to the end of the Initial Term
or any Renewal Term of this Agreement;
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(b) for Good Reason prior to a Change of Control;
(c) for Good Reason following a Change of Control; and
(d) at any time without Good Reason.
4.3 By the Company. The Company shall be entitled to terminate this
Agreement by giving written notice to the Executive:
(a) at least ninety (90) days prior to the end of the Initial Term
or any Renewal Term of this Agreement,
(b) in the event of the Executive's Disability;
(c) for Cause; and
(d) at any time without Cause.
4.4 Date of Termination. Any termination of the Executive's employment
by the Company or by the Executive during the Term shall be communicated by a
notice of termination to the other party hereto (the "Notice of Termination").
The Notice of Termination shall indicate the specific termination provision in
this Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of his employment
under the provision so indicated. The date of termination of employment with the
Company and its subsidiaries (the "Date of Termination") shall be determined as
follows: (i) if the Executive's employment is terminated for Disability, thirty
(30) days after a Notice of Termination is given (provided that the Executive
shall not have returned to the full-time performance of duties during such
thirty (30) day period), (ii) if employment is terminated by the Company in an
Involuntary Termination, five (5) days after the date the Notice of Termination
is received by the Executive and (iii) if the Executives employment is
terminated by the Company for Cause, the later of the date specified in the
Notice of Termination or ten (10) days following the date such notice is
received by the Executive. If the basis for the Executives Involuntary
Termination is the Executive's resignation for Good Reason, the Date of
Termination shall be ten (10) days after the date your Notice of Termination is
received by the Company. The Date of Termination for a resignation of employment
other than for Good Reason shall be the date set forth in the applicable notice,
which shall be no earlier than twenty (20) days after the date such notice is
received by the Company.
ARTICLE 5
COMPENSATION UPON TERMINATION OF EMPLOYMENT
5.1 Upon Termination for Death by the Company for Cause or by the
Executive Without Good Reason. If the Executive's employment is terminated by
reason of the Executive's death or Disability, by the Company for Cause or by
the Executive without Good Reason, the Company shall:
(a) pay the executive (or his estate or beneficiaries) any Base
Salary which has accrued but which has not been paid as of the termination date
(the "Accrued Base Salary");
(b) reimburse the Executive (or his estate or beneficiaries) for
expenses incurred by him prior to the date of termination which are subject to
reimbursement pursuant to applicable Company policies then in effect (the
"Accrued Reimbursable Expenses");
(c) provide to the Executive (or his estate or beneficiaries) any
accrued and vested benefits required to be provided by the terms of any
Company-sponsored benefit plans or programs (the "Accrued Benefits"), together
with any benefits required to be paid or provided in the event of the
Executive's death or Disability under applicable law;
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(d) pay the Executive (or his estate or beneficiaries) any
discretionary bonus with respect to a prior fiscal year which has accrued and
been earned but has not been paid (the "Accrued Bonus"); and
(e) allow the Executive (or his estate or beneficiaries) to
exercise all vested, unexercised stock options outstanding at the termination
date in accordance with the terms of the plans and agreements pursuant to which
such options were issued.
5.2 Upon Termination at Expiration of Term. If the Executive's
employment is terminated upon the expiration of the Term of this Agreement, the
Company shall:
(a) pay the Executive the Accrued Base Salary;
(b) pay the Executive the Accrued Reimbursable Expenses;
(c) pay the Executive the Accrued Benefits;
(d) pay the Executive the Accrued Bonus;
(e) pay the Executive his Base Salary, as and when the same would
have been paid to the Executive pursuant to Section 3.1 had the termination not
occurred, for a period of three (3) months following the termination date; and
(f) allow the Executive the right to (i) exercise all vested,
unexercised stock options in accordance with Section 5. 1 (e); and (ii) exercise
all unvested stock options owned by the Executive that would otherwise have
vested within one (1) year following the termination date at the time(s) set
forth in the plans and agreements pursuant to which such options were issued in
accordance with the terms (except the vesting terms) of the plans and agreements
pursuant to which such options were issued.
5.3 Upon Termination by the Company Without Cause or by the Executive
for Good Reason Prior to a Change of Control. If the Executive's employment is
terminated by the Company without Cause or by the Executive for Good Reason, in
each case prior to a Change of Control, the Company shall:
(a) pay the Executive the Accrued Base Salary;
(b) pay the Executive the Accrued Reimbursable Expenses;
(c) pay the Executive the Accrued Benefits;
(d) pay the Executive the Accrued Bonus;
(e) pay the Executive his Base Salary, as and when the same would
have been paid to the Executive pursuant to Section 3.1 had the termination not
occurred, until the first to occur of (i) the employment of the Executive in a
senior executive position with another company at a comparable compensation
level; or (ii) twelve (12) months following the termination date; provided,
however, than in no event shall the Base Salary paid to the Executive pursuant
this Section 5.3(e) be for less than three (3) months;
(f) pay the Executive on or prior to the thirtieth (30th) day
following the Date of Termination a lump sum payment equal to the average of all
annual performance bonuses paid to the Executive for the three (3) fiscal years
immediately preceding the fiscal year in which the termination occurs (or if
less than three (3), the average of the two (2) and if less than two (2), the
amount of his single Annual Bonus) (the "Lump Sum Bonus Payment"); and
(g) maintain in full force and effect, for the continued benefit
of the Executive and his eligible beneficiaries, until the first to occur of (i)
his attainment of comparable benefits upon alternative employment or (ii) twelve
(12) months following the termination date, the employee benefits pursuant to
Company-sponsored benefit plans, programs or other arrangements in which the
Executive was entitled to
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participate immediately prior to such termination, but only to the extent that
the Executive's continued participation is permitted under the general terms and
provisions of such plans, programs and arrangements; and
(h) allow the Executive the right to exercise in full all unvested
stock options granted to him in accordance with the terms (except the vesting
terms with respect to the accelerated options) of the plans and agreements
pursuant to which such options were issued.
5.4 Upon Termination by the Company Without Cause or by the Executive
for Good Reason Following a Change of Control. If, following a Change of
Control, the Executives employment is terminated by the Company or by the
Executive for Good Reason, the Company shall:
(a) pay the Executive the Annual Base salary;
(b) pay the Executive the Accrued Reimbursable Expenses;
(c) pay the Executive the Accrued Benefits, including that
described in Section 5.3(g), above;
(d) pay the Executive the Accrued Bonus;
(e) pay the Executive a lump sum payment on or prior to the
thirtieth (30th) day following the Date of Termination in an amount equal to the
lessor of (i) 2.99 times the sum of (x) the Executive's Base Salary in effect
immediately prior to the time such termination occurs; and (y) the Lump Sum
Bonus Payment, and (ii) an amount, the present value of which shall not exceed
2.99 times the Executive's "base amount," as such term is defined in Section
28OG of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations promulgated thereunder; and
(f) accelerate the vesting of a unexercised and unexpired stock
options granted to the Executive and allow the Executive the right to exercise
in full, within twelve (12) months from the Date of Termination, any such
outstanding options in accordance with the terms (except the vesting terms with
respect to accelerated options) of the plans and/or agreements pursuant to which
such options were issued.
ARTICLE 6
DISABILITY
If the Employee becomes partially disabled for any reason, and thereby
prevented from performing his duties hereunder on a full-time basis, at the end
of the first three (3) months of such partial disability, the Employees salary
shall be adjusted as the Employer shall determine appropriate under the
circumstances, with this services to thereafter be rendered on a part-time basis
to the Employer. However, such salary shall not be reduced by more than fifty
percent (50%) of the Employee's then compensation per annum.
If the Employee shall become permanently disabled for any reason, and
thereby prevented from performing any duties hereunder whatsoever, at the end of
the first three (3) months of such disability, the Employee shall be paid
disability pay at the rate of fifty percent (50%) of the Employee's then
compensation per annum or, if the Employee has group long term disability
insurance, that amount to bring the Employee's long term disability payments up
to one hundred percent (l00%) of the Employee's then compensation per annum for
the remainder of the employment term (unless the Employee dies before the end of
the employment term, at which time the disability payments shall stop and the
provisions of paragraph 5.1 shall supersede).
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ARTICLE 7
RESTRICTIVE COVENANTS
7.1 Competition.
(a) The Executive agrees that during his employment with the
Company and for a period of two (2) years following the date of termination of
his employment hereunder (the "Non-Competition Period"), for any reason (whether
such termination shall be voluntary or involuntary), the Executive shall not:
(i) except as a passive investor in publicly-held companies,
and except for investments held as of the date hereof directly or indirectly
own, operate, manage, consult with, control, participate in the management or
control of, be employed by, maintain or continue any interest whatsoever in any
optical materials company that directly competes with the Company; or
(ii) directly or indirectly solicit any business of a nature
that is directly competitive with the business of the Company from any
individual or entity that obtained such products or services from the Company or
its affiliates at any time during his employment with the Company; or
(iii) directly or indirectly solicit any business of a
nature that is directly competitive with the business of the Company from any
individual or entity solicited by him on behalf of the Company or its
affiliates, or
(iv) employ, or directly or indirectly solicit, or cause the
solicitation of, any employees of the Company who are in the employ of the
Company on the termination date of his employment hereunder for employment by
others.
(b) The Executive expressly agrees and acknowledges that:
(i) this covenant not to compete is reasonably necessary for
the protection of the interests of the Company and is reasonable as to time and
geographical area and does not place any unreasonable burden upon him;
(ii) the general public will not be harmed as a result of
enforcement of this covenant not to compete;
(iii) his personal legal counsel has reviewed this covenant
not to compete, and
(iv) he understands and hereby agrees to each and every term
and condition of this covenant not to compete.
7.2 Patent Rights. Any new patents, or proprietary fights to any new
products or processes not patented, developed by the Executive during the term
of the Executive's employment hereunder shall be the property of the Company in
accordance with the Employment, Confidential Information and Invention
Assignment Agreement entered into on May 22, 1995 by the Executive and the
Company.
7.3 Remedies. The Executive expressly agrees and acknowledges that the
covenant not to compete set forth in Section 6.1 is necessary for the Company's
and its affiliates' protection because of the nature and scope of their business
and his position with the Company. Further, the Executive acknowledges that, in
the event of his breach of his covenant not to compete, money damages will not
sufficiently compensate the Company for its injury caused thereby, and he
accordingly agrees that in addition to such money damages he may be restrained
and enjoined from any continuing breach of the covenant not to compete without
any bond or other security being required. The Executive acknowledges that any
breach of the covenant not to compete would result in irreparable damage to the
Company. The Executive further acknowledges and agrees that if the Executive
fails to comply with this Article VI, the Company has no obligation to provide
any compensation or other benefits described in Article V hereof The Executive
acknowledges that the remedy at law for any breach or threatened breach of
Sections 6.1 and
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6.2 will be inadequate and, accordingly, that the Company shall, in addition to
all other available remedies (including without limitation, seeking such damages
as it can show it has sustained by reason of such breach), be entitled to
injunctive relief or specific performance.
ARTICLE 8
MISCELLANEOUS
8.1 No Assignments. This Agreement is personal to each of the parties
hereto. No party may assign or delegate any rights or obligations hereunder
without first obtaining the written consent of the other parry hereto, except
that this Agreement shall be binding upon and inure to the benefit of any
successor corporation to the Company.
(a) The Company shall use reasonable efforts to require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. As used in this Agreement, "Company"
shall mean the Company as defined herein and any successor to its business
and/or assets which assumes this Agreement by operation of law or otherwise.
(b) This Agreement shall inure to the benefit of and be
enforceable by the Executive and his personal or legal representatives,
executors, administrators, successors, heirs, distributees, devises and
legatees. If the Executive should die while any amount would still be payable to
him hereunder had he continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
his devisee, legates or other designee, or if there is no such designee, to his
estate.
8.2 Notice. For the purpose of this Agreement, notices and a other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth below, or to such other
addresses as either party may have furnished to the other in writing in
accordance herewith, except that notice of a change of address shall be
effective only upon actual receipt:
To the Company: LightPath Technologies, Inc.
0000 Xxxxxxx Xxxxxxx Xxxx, XX
Xxxxxxxxxxx, XX 00000
To the Executive: Xxxxxx X. Xxxxxx
0000 Xxxx Xxxxx Xx. X.X.
Xxxxxxxxxxx, XX 00000
Notices pursuant to Article VII of this Agreement shall specify the specific
termination provision relied upon by the party giving notice and shall state the
effective date of the termination.
8.3 Amendments or Additions. No amendments or additions to this
Agreement shall be binding unless in writing and signed by each of the parties
hereto.
8.4 Section Headings. The section headings used in this Agreement are
included solely for convenience and shall not affect, or be used in connection
with, the interpretation of this Agreement.
8.5 Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If, in any
judicial proceedings, a court shall refuse to enforce one or more of the
covenants or agreements contained herein because the duration thereof is too
long, or the scope thereof is too broad, it is expressly agreed between the
parties hereto that such scope or duration shall be deemed reduced to the extent
necessary to permit the enforcement of such covenants or agreements.
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8.6 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
8.7 Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration,
conducted before a panel of three (3) arbitrators in Albuquerque, New Mexico in
accordance with the rules of the American Arbitration Association then in
effect. The decision of the arbitrators shall be final and binding on the
parties, and judgment may be entered on the arbitrators' award in any court
having jurisdiction. The costs and expenses of such arbitration shall be borne
in accordance with the determination of the arbitrators. Notwithstanding any
other provision of this Agreement, if any termination of this Agreement becomes
subject to arbitration, the Company shall not be required to pay any amounts to
the Executive (except those amounts required by law) until the completion of the
arbitration and the rendering of the arbitrators' decision. The amounts, if any,
determined by the arbitrators to be owed by the Company to the Executive shall
be paid within five (5) days after the decision by the arbitrators is rendered.
8.8 No Mitigation or Offset. The Executive shall not be required to
mitigate the amount of any payment provided for in this Agreement by seeking
other employment or otherwise, nor shall the amount of any payment or benefit
provided for in this Agreement be reduced by any compensation earned by the
Executive as the result of employment by another employer or by pension benefits
paid by the Company or another employer after the date of termination or
otherwise except that on the date that the Executive and his dependents are
eligible and elect coverage under the plans of a subsequent employer which
provide substantially equivalent or greater benefits to the Executive and his
dependents.
8.9 Modifications and Waiver. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and such officer of the Company
as may be specifically designated by the Board. No waiver by either party hereto
at any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
8.10 Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
Mexico without regard to its conflicts of law principles.
8.11 Taxes. Any payments provided for hereunder shall be paid net of
any applicable withholding or other employment taxes required under federal,
state or local law.
8.12 Survival. The obligations of the Company under Article V hereof
and the obligations of the Executive under Article VI hereof shall survive the
expiration of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first indicated above.
LIGHTPATH TECHNOLOGIES, INC.
a Delaware corporation
/s/Haydock X. Xxxxxx, Xx., /s/ Xxxxxx X. Xxxxxx
By_____________________________ __________________________
Chairman of the Compensation Committee
Its of the Board of Directors XXXXXX X. XXXXXX
"COMPANY" "EXECUTIVE"
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