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Exhibit 10.2
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") executed and effective the
28th day of June, 2007 (the "Effective Date"), by and between DYNATRONICS
CORPORATION, a Utah corporation having its principal place of business in Salt
Lake City, Utah (the "Company"), and XXXXX X. XXXXXXXX, a resident of Utah (the
"Executive").
R E C I T A L S :
A. The Company desires to retain the services of the Executive,
presently a shareholder, officer and director of the Company, and the Executive
desires to render such services, upon the terms and conditions contained herein.
B. The Board of Directors of the Company (the "Board"), by appropriate
resolutions, authorized the employment of the Executive as provided for in this
Agreement.
A G R E E M E N T :
NOW, THEREFORE, in consideration of the covenants contained herein, the
above recitals and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DUTIES
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1.01 Duties. The Company hereby employs the Executive, and the
Executive hereby accepts employment, as the Company's Executive Vice President
of Sales and Marketing upon the terms and conditions contained herein. The
Executive will exercise the authority and assume the responsibilities: (i)
specified in the Company's Bylaws; (ii) of an Executive Vice President of a
corporation of the size and nature of the Company; and (iii) prescribed by the
Board from time to time, with the current description set forth in Exhibit A,
attached hereto and by reference made a part hereof. Executive currently serves
as a director on the Board and the Board shall use its reasonable best efforts
to cause the Executive to remain as a director during the entire Contract Term,
as such term is defined under Article II.
1.02 Other Business. During the Contract Term, and excluding any
periods of vacation, sick leave or disability to which the Executive is
entitled, the Executive agrees to devote the Executive's full attention and time
to the business and affairs of the Company and, to the extent necessary to
discharge the duties assigned to the Executive hereunder, to use the Executive's
best efforts to perform faithfully and efficiently such duties. Notwithstanding
the foregoing, but subject to (i) the advance approval of the Chairman of the
Board, and (ii) the provisions of Article VI hereof, the Executive shall be
entitled to serve on the board of directors of up to two (2) publicly held
companies other than the Company and a reasonable number of privately held
companies including companies operated or controlled by the Executive or a
relative or family member of the Executive.
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ARTICLE II
TERM OF AGREEMENT
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The initial term of this Agreement shall commence on the Effective Date
and shall terminate at 11:59 p.m. Mountain Standard Time on June 30, 2009 (the
"Initial Contract Term") unless sooner terminated hereunder. Thereafter, the
term of this Agreement shall be automatically renewed for successive one-year
terms (each a "Renewal Contract Term") without action by either party; provided,
however, that either party may terminate its obligations hereunder at the end of
any Renewal Contract Term by giving the other party written notice of
termination at least 60 days and no more than 180 days before the end of said
Renewal Contract Term. The Initial Contract Term and any Renewal Contract Terms
are hereinafter collectively referred to as the "Contract Term."
ARTICLE III
COMPENSATION
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During the Contract Term, the Company shall pay, or cause to be paid to
the Executive in cash in accordance with the normal payroll practices of the
Company for senior executive officers (including deductions, withholdings and
collections as required by law), the following:
3.01 Annual Base Salary. Executive's current annual base salary
("Annual Base Salary") is equal to One Hundred and Forty Three Thousand Dollars
($143,000) as of the Effective Date. Thereafter, the Compensation Committee will
determine Executive's salary hereunder in the Committee's sole discretion.
Notwithstanding the foregoing, in the event of a Change of Control (as defined
in Article V, below), the annual increase to the Annual Base Salary hereunder
will be an amount equal to the greater of 5 percent of the Annual Base Salary in
the preceding year or the amount determined by the Compensation Committee, with
such increase to become effective July 1st of each fiscal year.
3.02 Annual Bonus. A cash bonus (the "Annual Bonus") shall be paid each
year in an amount determined by the Compensation Committee, from the pre-tax
operating profits of the Company. The current Annual Bonus level for Executive
is 4 percent of pre-tax operating profits. Operating profits shall exclude
extraordinary items such as the sale of assets or the recognition of gains or
losses not associated with operations. The Compensation Committee of the Board
of Directors shall have sole discretion in determining whether an amount in
question shall be included in calculating operating profit. Notwithstanding
anything set forth above, the Compensation Committee may make adjustments as
deemed appropriate to the structure of the Annual Bonus program from time to
time. Bonuses shall be calculated and paid on a quarterly basis. All accrued
bonuses shall be paid to Executive within 45 days from the end of a quarter
except for the quarter ended June 30th for which any accrued bonus shall be paid
within 60 days. Notwithstanding the foregoing, in the event of a Change in
Control (as defined in Article V, below), the minimum Annual Bonus will be an
amount equal to 4 percent (or such greater amount as the Compensation Committee
may determine) of the Company's pre-tax operating profits annually prior to
payment of any other bonuses based on pre-tax operating profits.
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ARTICLE IV
OTHER BENEFITS
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4.01 Incentive Savings and Retirement Plans. The Executive shall be
entitled to participate, during the Contract Term, in all incentive (including
annual and long-term incentives), savings and retirement plans, practices,
policies and programs available to other senior executives of the Company.
4.02 Welfare Benefits. Immediately upon the Effective Date and
throughout the Contract Term, the Executive and/or the Executive's family, as
the case may be, shall be entitled to participate in, and shall receive all
benefits under, all welfare benefit plans, practices, policies and programs
provided by the Company (including without limitation, medical, prescription,
dental, disability, employee life, group life, dependent life, accidental death
and travel accident insurance plans and programs) at a level that is equal to
other senior executives of the Company.
4.03 Fringe Benefits. Immediately upon the Effective Date and
throughout the Contract Term, the Executive shall be entitled to participate in
all fringe benefit programs provided by the Company to its senior executives. As
of the Effective Date, those fringe benefits include (i) use of a Company
vehicle or a corresponding automobile allowance, including the payment of gas,
oil, maintenance and insurance in connection with such vehicle or allowance, as
the case may be, (ii) life insurance benefit with a minimum face value of
$100,000, with premiums paid by the Company, (iii) additional disability
insurance benefits paid by the Company at levels not less than currently
provided by group and individual policies in effect as of the date hereof, and
(iv) participation in a salary continuation plan as set forth in that certain
Salary Continuation Agreement (the "Salary Continuation Agreement") between the
Company and the Executive and entered into in July 1989, as the same may be
hereafter modified or amended, or any successor plan provided by the Company.
4.04 Expenses. During the Contract Term, the Executive shall be
entitled to receive prompt reimbursement for all reasonable employment-related
expenses which are incurred by the Executive. The Executive shall be reimbursed
upon the Company's receipt of accountings in accordance with practices, policies
and procedures applicable to senior executives of the Company.
4.05 Office and Support Staff. During the Contract Term, the Executive
shall be entitled to an office, furnishings, other appointments, commensurate
with the position occupied by Executive, all of which shall be adequate for the
performance of the Executive's duties. Executive may hire staff to assist
Executive in his or her duties, subject to approval of the Company's Chief
Executive Officer.
4.06 Vacation. The Executive shall be entitled to up to four (4) weeks
paid vacation per fiscal year commencing with the Effective Date. Such paid
vacation days shall accrue without cancellation, expiration or forfeiture,
subject however to the policy of the Company that no vacation days may be
carried over from any prior year.
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4.07 Stock Options. The Executive has previously been granted options
to purchase 165,000 shares (the "Options") of the Company's common voting stock
par value $.001 per share (the "Common Stock"). Subject to (i) the terms of the
Company's 1992 Amended and Restated Stock Option Plan or any successor plan
thereto (the "Stock Plan") and (ii) Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"), the Options shall be qualified Incentive Stock
Options under Section 422 of the Code.
ARTICLE V
CHANGE OF CONTROL
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5.01 Definitions. The following terms shall have the meaning set forth
below:
(a) The term "Company Acquisition" shall mean an acquisition of another
corporation, limited liability company, limited partnership, partnership or
similar entity by the Company by any means, including, without limitation, by
means of a merger, acquisition of assets or acquisition of ownership interests.
(b) The term "Continuing Directors" shall mean those members of the
Board at any relevant time (i) who were directors on the Effective Date or (ii)
who subsequently were approved for nomination, election or appointment to the
Board by at least two-thirds of the Continuing Directors on the Board at the
time of such approval (the directors described in subsection (ii) are referred
to herein as the "Approved Directors"). "Approved Directors" shall not include
those appointed to the board as a term of a negotiated merger or acquisition.
(c) The term "Change in Control" shall mean a change in control of
beneficial ownership of the Company's voting securities of a nature that would
be required to be reported pursuant to Item 6(e) of Schedule 14A of Regulation
14A under the Securities Exchange Act of 1934, as amended (the "Exchange Act")
or any similar item on a successor or revised form; provided, however, that a
Change in Control shall be deemed to have occurred when:
(i) Any "person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act) is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities
representing fifty percent (50%) or more of the combined voting power of the
Company's then outstanding voting securities; or
(ii) During any period of three consecutive years, the individuals
who at the beginning of such period constituted the Board, together with any
Approved Directors elected during such period, cease for any reason to
constitute at least a majority of the Board; or
(iii) The shareholders of the Company approve an agreement for the
sale or disposition by the Company of all or substantially all of the Company's
assets.
(d) The term "Good Reason," in connection with the termination by the
Executive of his employment with the Company subsequent to a Change of Control
or Company Acquisition, shall mean:
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(i) A diminution in the responsibilities, title or office of the
Executive such that he does not serve as Executive Vice President of the Company
(which diminution was not for "Cause" (as defined below) or the result of the
Executive's disability), or the assignment (without the Executive's express
written consent) by the Company to the Executive of any significant duties that
are inconsistent with the Executive's position, duties, responsibilities and
status as Executive Vice President of the Company;
(ii) The Company's transfer or assignment of the Executive,
without the Executive's prior express written consent, to any location other
than the Company's principal place of business in Salt Lake County, Utah, except
for required travel on Company business to an extent that does not constitute a
substantial abrupt departure from the Executive's normal business travel
obligations;
(iii) The failure by the Company to continue in effect any
material benefit or compensation plan, life insurance plan, health and medical
benefit plan, disability plan or any other benefit plan in which the Executive
is a participant, or the taking of any action by the Company that would
adversely affect the Executive's right to participate in, or materially reduce
the Executive's benefits under, any of such plans or benefits, or deprive the
Executive of any material fringe benefit enjoyed by the Executive (except where
such failure to continue in effect or taking of such action affects all
executives of the Company who participate in the applicable plan or receive the
applicable benefits); or
(iv) The failure of the Executive to serve as a director of the
Board (except if such decision not to serve was made voluntarily by the
Executive) at any time from his initial election to the Board through the end of
the Contract Term.
(e) The terms "Parachute Payments" and "Excess Parachute Payments"
shall each have the meanings attributed to them under Section 280G of the Code,
or any successor section, and any regulations which may be promulgated in
connection with said section.
5.02 Severance Payments. During the Contract Term, if (a) within six
(6) months after a Change of Control occurs the Executive voluntarily terminates
his employment with the Company or (b) within twelve (12) months after a Change
in Control or a Company Acquisition occurs, the Executive's employment is
terminated either (1) by the Company for any reason other than (A) for Cause (as
defined below), (B) as a result of the Executive's death or disability, or (C)
as a result of the Executive's retirement in accordance with the Company's
general retirement policies, or (2) by the Executive for Good Reason, then:
(i) the Executive shall be paid an amount in cash equal to (x) one
and one-half times (1.5x) the Annual Base Salary in effect at the time of such
termination and (y) one and one-half times (1.5x) the average Annual Bonus paid
by the Company to Executive over the previous three (3) complete fiscal years;
50% of such amount to be paid within thirty (30) days after such termination and
the balance to be paid ratably over the subsequent six (6) months.
(ii) the Company shall maintain in full force and effect for
eighteen (18) months after termination, all employee health and medical benefit
plans and programs including, without limitation, the Executive's 401(k) Plan,
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in which the Executive, his family, or both, were participants immediately prior
to termination; provided that such continued participation is possible under the
general terms and provisions of such plans and programs; provided, however, that
if the Executive becomes eligible to participate in a health and medical benefit
plan or program of another employer which confers substantially similar
benefits, the Executive shall cease to receive benefits under this subparagraph
in respect of such plan or program;
(iii) all of the Options and other stock options, warrants and
other similar rights granted by the Company to the Executive, if any, shall
immediately and entirely vest and shall be immediately delivered to the
Executive without restriction or limitation of any kind (except for normal
transfer restrictions);
(iv) the Executive shall be paid an amount equal to the cash
surrender value, if any, of those certain life insurance policies underwritten
by ING/Security Life of Denver (or such successor or replacement policies) owned
by the Company for the purpose of funding the Company's obligations under the
Salary Continuation Agreement; and
(v) the Company shall transfer to the Executive title, free and
clear of all encumbrances, to either (i) the Company-owned vehicle used by the
Executive at the time the Executive's employment with the Company terminates
(the "Company Vehicle"), or (ii) a vehicle of substantially similar market value
as the market value of the Company Vehicle at the time Executive's employment
with the Company terminates.
Any obligation owed or amount payable pursuant to this Section together
with any compensation pursuant to Article III that is payable for services
rendered through the effective date of termination, shall constitute the sole
obligation of the Company payable with respect to the termination of the
Executive as provided in this Section. Upon such termination, the Company will
have no obligation to pay Executive any amounts pursuant to the Salary
Continuation Agreement.
5.03 Parachute Payment Limitation. Notwithstanding any other provision
of this Agreement, if the severance payments under Section 5.02 of this
Agreement, together with any other Parachute Payments made by the Company to the
Executive, if any, are characterized as Excess Parachute Payments, then the
following rules shall apply:
(a) The Company shall compute the net value to the Executive of all
such severance payments after reduction for the excise taxes imposed by Section
4999, of the Code and for any normal income taxes that would be imposed on the
Executive if such severance payments constituted the Executive's sole taxable
income;
(b) The Company shall next compute the maximum amount of severance
payments that can be provided without any such payments being characterized as
Excess Parachute Payments, and reduce the result by the amount of any normal
income taxes that would be imposed on the Executive if such reduced severance
benefits constituted the Executive's sole taxable income;
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(c) If the amount derived in Section 5.03(a) is greater than the amount
derived in Section 5.03(b), then the Company shall pay the Executive the full
amount of severance payments without reduction. If the amount derived in Section
5.03(a) is not greater than the amount derived in Section 5.03(b), then the
Company shall pay the Executive the maximum amount of severance payments that
can be provided without any such payments being characterized as Excess
Parachute Payments.
5.04 No Mitigation. The Executive shall not be required to mitigate the
amount of any payment provided for in Section 5.02 by seeking other employment
or otherwise, nor shall the amount of any payment provided for in Section 5.02
be reduced by any compensation earned by the Executive as a result of employment
by another company, self-employment or otherwise.
ARTICLE VI
RESTRICTIVE COVENANTS
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6.01 Trade Secrets. Confidential and Proprietary Business Information.
(a) The Company has advised the Executive and the Executive has
acknowledged that it is the policy of the Company to maintain as secret and
confidential all Protected Information (as defined below), and that Protected
Information has been and will be developed at substantial cost and effort to the
Company. "Protected Information" means trade secrets, confidential and
proprietary business information of the Company, any information of the Company
other than information which has entered the public domain (unless such
information entered the public domain through effects of or on account of the
Executive), and all valuable and unique information and techniques acquired,
developed or used by the Company relating to its business, operations,
employees, customers and suppliers, which give the Company a competitive
advantage over those who do not know the information and techniques and which
are protected by the Company from unauthorized disclosure, including but not
limited to, customer lists (including potential customers), sources of supply,
processes, plans, materials, pricing information, internal memoranda, marketing
plans, internal policies, and products and services which may be developed from
time to time by the Company and its agent or employees.
(b) The Executive acknowledges that the Executive will acquire
Protected Information with respect to the Company and its successors in
interest, which information is a valuable, special and unique asset of the
Company's business and operations and that disclosure of such Protected
Information would cause irreparable damage to the Company.
(c) Either during or for a period of two (2) years following
termination of employment by the Company, the Executive shall not, directly or
indirectly, divulge, furnish or make accessible to any person, firm,
corporation, association or other entity (otherwise than as may be required in
the regular course of the Executive's employment) nor use in any manner, any
Protected Information, or cause any such information of the Company to enter the
public domain.
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6.02 Non-Competition
(a) The Executive agrees that the Executive shall not during the
Executive's employment with the Company, and, for a period of two (2) years
after the termination of this Agreement, directly or indirectly, in any
capacity, engage or participate in, or become employed by or render advisory or
consulting or other services in connection with any Prohibited Business as
defined in Section 6.02(c).
(b) The Executive agrees that the Executive shall not during the
Executive's employment with the Company, and, for a period of two (2) years
after the termination of this Agreement, make any financial investment, whether
in the form of equity or debt, or own any interest, directly or indirectly, in
any Prohibited Business. Nothing in this Section 6.02(b) shall, however,
restrict the Executive from making any investment in any company whose stock is
listed on a national securities exchange; provided that (i) such investment does
not give the Executive the right or ability to control or influence the policy
decisions of any Prohibited Business, and (ii) such investment does not create a
conflict of interest between the Executive's duties hereunder and the
Executive's interest in such investment.
(c) For purposes of this Section 6.02, "Prohibited Business" shall be
defined as any business and any branch, office or operation thereof, which is a
competitor of the Company and which has established or seeks to establish
contact, in whatever form (including, but not limited to solicitation of sales,
or the receipt or submission of bids), with any entity who is at any time a
client, customer or supplier of the Company (including but not limited to all
subdivisions of the federal government.)
6.03 Non-Solicitation. From the date hereof until two (2) years after
the Executive's termination of employment with the Company, the Executive shall
not, directly or indirectly (a) encourage any employee or supplier of the
Company or its successors in interest to leave his or her employment with the
Company or its successors in interest, (b) employ, hire, solicit or cause to be
employed, hired or solicited (other than by the Company or its successors in
interest), or encourage others to employ or hire any person who within two (2)
years prior thereto was employed by the Company or its successors in interest,
or (c) establish a business with, or encourage others to establish a business
with, any person who within two (2) years prior thereto was an employee or
supplier of the Company or its successors in interest.
6.04 Survival of Undertakings and Injunctive Relief.
(a) The provisions of Sections 6.01, 6.02 and 6.03 shall survive the
termination of the Executive's employment with the Company irrespective of the
reasons therefor.
(b) The Executive acknowledges and agrees that the restrictions imposed
upon the Executive by Sections 6.01, 6.02 and 6.03 and the purpose of such
restrictions are reasonable and are designed to protect the Protected
Information and the continued success of the Company without unduly restricting
the Executive's future employment by others. Furthermore, the Executive
acknowledges that, in view of the Protected Information which the Executive has
or will acquire or has or will have access to and in view of the necessity of
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the restrictions contained in Sections 6.01, 6.02 and 6.03, any violation of any
provision of Sections 6.01, 6.02 and 6.03 hereof would cause irreparable injury
to the Company and its successors in interest with respect to the resulting
disruption in their operations. By reason of the foregoing the Executive
consents and agrees that if the Executive violates any of the provisions of
Sections 6.01, 6.02 or 6.03 of this Agreement, the Company and its successors in
interest as the case may be, shall be entitled, in addition to any other
remedies that they may have, including money damages, to an injunction to be
issued by a court of competent jurisdiction, restraining the Executive from
committing or continuing any violation of such Sections of this Agreement.
In the event of any such violation of Sections 6.01, 6.02 or 6.03 of
this Agreement, the Executive further agrees that the time periods set forth in
such Sections shall be extended by the period of such violation.
ARTICLE VII
TERMINATION
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7.01 Termination of Employment. The Executive's employment may be
terminated (i) at any time during the Contract Term by mutual agreement of the
parties, (ii) at the end of any Renewal Contract Term if written notice of
non-renewal is given by either party to the other at least 90 days prior to the
end of said Renewal Contract Term or (iii) as otherwise provided in this
Article.
7.02 Termination for Cause. The Company may terminate the Executive's
employment for Cause by giving the Executive seven (7) days prior written notice
of such termination. For purposes of this Agreement, "Cause" for termination
shall mean
(i) the willful failure or refusal to carry out the reasonable
directions of the Board, which directions are consistent with the Executive's
duties as set forth under this Agreement and have been given to the Executive in
writing but which directions the Executive has failed to follow or implement
within thirty (30) days after said written notice, other than a failure
resulting from the Executive's complete or partial incapacity due to physical or
mental illness or impairment;
(ii) a conviction for a violation of a state or federal criminal
law involving the commission of a felony;
(iii) a willful act by the Executive that constitutes gross
negligence in the
performance of the Executive's duties under this Agreement and which materially
injures the Company. No act, or failure to act, by the Executive shall be
considered "willful" unless committed without good faith and without a
reasonable belief that the act or omission was in the Company's best interest;
(iv) a material breach by the Executive of the terms of this
Agreement, which breach has not been cured by the Executive within fifteen (15)
days of written notice of said breach by the Company;
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(v) repeated unethical business practices by the Executive in
connection with the Company's business, which unethical business practices
continue after fifteen (15) days after written notice thereof by the Company; or
(vi) habitual use of alcohol or drugs by the Executive.
Upon termination for Cause, the Executive shall not be entitled to
payment of any compensation other than salary and benefits under this Agreement
earned up to the date of such termination and any stock options, warrants or
similar rights which have vested at the date of such termination.
7.03 Termination Without Cause. Should the Executive's employment be
terminated for a reason other than as specifically set forth in Sections 7.01
and 7.02 or Article V above the Company shall pay and/or provide to the
Executive each of the benefits and payments provided in Section 5.02 (i)-(v).
ARTICLE VIII
MISCELLANEOUS
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8.1 Assignment, Successors. This Agreement may not be assigned by
either party hereto without the prior written consent of the other party. This
Agreement shall be binding upon and inure to the benefit of the Executive and
the Executive's estate and the Company and any assignee of or successor to the
Company.
8.2 Beneficiary. If the Executive dies during the Contract Term, the
Company shall pay as an additional death benefit (and not in lieu of any other
such benefit to which Executive may be entitled at such time) the Annual Base
Salary under paragraph 3.01 for the remainder of the Contract Term in a lump sum
payment to the Executive's beneficiary or beneficiaries designated in writing by
the Executive (collectively the "Beneficiary") and if no such Beneficiary is
designated, to the Executive's estate; provided, however, that such sum shall be
reduced by the amounts, if any, that are paid to the Beneficiary or the estate
of Executive, as the case may be, under the Salary Continuation Agreement during
the remainder of the Contract Term.
8.3 Nonalienation of Benefits. Benefits payable under this Agreement
shall not be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, charge, garnishment, execution or levy of any
kind, either voluntary or involuntary, prior to actually being received by the
Executive, and any such attempt to dispose of any right to benefits payable
hereunder shall be void.
8.4 Severability. If all or any part of this Agreement is declared by
any court or governmental authority to be unlawful or invalid, such unlawfulness
or invalidity shall not serve to invalidate any portion of this Agreement not
declared to be unlawful or invalid. Any paragraph or part of a paragraph so
declared to be unlawful or invalid shall, if possible, be construed in a manner
which will give effect to the terms of such paragraph or part of a paragraph to
the fullest extent possible while remaining lawful and valid.
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8.5 Amendment and Waiver. This Agreement shall not be altered, amended
or modified except by written instrument executed by the Company and the
Executive. A waiver of any term, covenant, agreement or condition contained in
this Agreement shall not be deemed a waiver of any other term, covenant,
agreement or condition and any waiver of any other term, covenant, agreement or
condition, and any waiver of any default in any such term, covenant, agreement
or condition shall not be deemed a waiver of any later default thereof or of any
other term, covenant, agreement or condition.
8.6 Notices. All notices and other communications hereunder shall be in
writing and delivered by hand or by first class registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
If to the Company: DYNATRONICS CORPORATION
0000 Xxxx Xxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
With a copy to: DURHAM, EVANS, XXXXX & XXXXXXX
Attn: Xxxxx X. Xxxx, Esq.
000 Xxxx Xxxxxxxx, Xxxxx 000
X.X. Xxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
If to the Executive: Xxxxx X. Xxxxxxxx
0000 Xxxxxxxxxxx Xxx
Xxxxx, Xxxx 00000
Either party may from time to time designate a new address by notice
given in accordance with this Section. Notice and communications shall be
effective when actually received by the addressee.
8.7 Counterpart Originals. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
8.8 Entire Agreement. This Agreement forms the entire agreement between
the parties hereto with respect to any severance payment and with respect to the
subject matter contained in the Agreement.
8.9 Applicable Law. The provisions of this Agreement shall be
interpreted and construed in accordance with the laws of the state of Utah,
without regard to its choice of law principles.
8.10 Effect on Other Agreements. This Agreement shall supersede
entirely all prior agreements (including, without limitation, any existing
employment agreement), promises and representations regarding employment by the
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Company and severance or other payments contingent upon termination of
employment not referenced by this agreement. Notwithstanding the foregoing, the
Executive shall be entitled to any other severance plan applicable to other
senior executives of the Company.
8.11 Extension or Renegotiation. The parties hereto agree that at any
time prior to the expiration of this Agreement, they may extend or renegotiate
this Agreement upon mutually agreeable terms and conditions.
IN WITNESS WHEREOF the parties have executed this Employment Agreement
on the date first written above.
DYNATRONICS CORPORATION,
a Utah corporation
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxxxxx, Xx.
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Title: President and CEO
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XXXXX X. XXXXXXXX,
an individual
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
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EXHIBIT A
Responsibilities and Authority of Executive Vice President of Sales and
Marketing
Responsibilities:
Second in command of the Company
Assumes responsibility of President/CEO in the latter's absence Manages
and directs all Sales and Marketing functions
Hiring of personnel for his department
Develops Sales and Marketing strategies
Develops product definition for all manufactured products
Drives for improvement of existing products
Establishes Customer Service Policies and Procedures
Evaluates products for distribution
Management Team Member
Member Board of Directors
Authority:
Acts in full stead of President/CEO in the latter's absence
Fully empowered to decide and implement Marketing and Sales strategies
including retaining and dismissing the services of dealers and sales
representatives
Establishment of incentive programs within allowed budgets
Hires needed personnel to meet the Marketing and Sales business plan
(compensation packages require advance approval of the President/CEO)
Approves expenditures for sales travel, trade shows, advertising and
other budget categories within his purview (as approved by the Board)
Latitude to discount sales as appropriate
May grant exceptions to Company policies for employees under his
management
Signs Purchase Orders for equipment, supplies, and services for his
department:
