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DYNASIL CORPORATION OF AMERICA
AGREEMENT OF EMPLOYMENT
THIS AGREEMENT is effective as of the closing of Optometrics LLC
("Optometrics LLC") operating asset sale to Dynasil Corporation of
America (the "Closing Date"), by and between DYNASIL CORPORATION OF
AMERICA, a New Jersey corporation with offices at 000 Xxxxxx Xxxx, Xxxx
Xxxxxx, Xxx Xxxxxx, 00000, for itself and/or on behalf of any of its
wholly-owned subsidiaries (collectively, the "Company") and XXXXX XXXXXXX
("Employee"), whose address is Xxx Xxxxxxxx Xxxxxxxx, Xxxx, Xxxxxxxxxxxxx
00000.
1. Employment. Effective at the Closing Date (the "Effective Date"),
the Company agrees to employ Employee as Chief Operating Officer of the
Company's subsidiary ("Optometrics") that acquires the operating assets
of Optometrics LLC and Chief Financial Officer of the Company, with such
duties as are customary for such positions; however, the parties agree
that Employee's title and location of employment (0 Xxxxx Xxx, Xxxx, XX)
will not be changed during the Term of this Agreement. Employee shall
perform these duties subject to the direction and supervision of the
President and CEO and Board of Directors of the Company. Employee accepts
such continued employment and agrees to devote her full time and skills
to the conduct of the Company's and Optometrics' businesses, performing
to the best of Employee's abilities such duties as may be reasonably
requested by the Company. Employee agrees to serve the Company diligently
and faithfully so as to advance the Company's best interests and agrees
to not take any action in conflict with its best interests. Company
acknowledges that Employee may be unavailable for overnight travel during
the months of January through June and such unavailability shall not be
cause for termination of this Agreement or of Employee's employment
relationship with Company.
2. Term.
(a) The term of employment of Employee hereunder shall be for a
period of two (2) years commencing on the Closing Date, subject to the
conditions set forth herein.
(b) This Agreement may be renewed at the end of the initial Term by
mutual written agreement of the parties for additional terms of one (1)
year each; provided, however, either party may terminate this Agreement
at the end of a term by providing written notice to the other party no
later than ninety (90) days prior to the expiration of the then current
term.
(c) Employee may terminate this Agreement within thirty (30) days
after the event of a significant diminution in Employee's executive
responsibilities.
3. Compensation.
(a) Base Salary. Employee shall receive as base salary, during the
Term of this Agreement, the sum of Ninety Thousand Dollars ($90,000) per
annum payable for the first year and Ninety Five Thousand Dollars
($95,000) per annum for the subsequent years in accordance with the
Company's regular payroll schedule.
(b) Bonus. In each year of the Term of this Agreement, the Company
agrees to pay Employee an annual performance bonus equal to four percent
(4%) of Optometrics' net income for each fiscal year ending after the
Closing Date (prorated for the first and last fiscal years ending after
the Closing Date so long as the Closing Date occurs after December 31,
2004). This bonus will be payable not later than thirty (30) days after
receipt of the Company's audited financial statements for its fiscal
year. The amount of such bonus shall be paid to Employee two-thirds in
cash and one-third in shares of the Company's common stock.
(c) Other Bonus. Employee will also be eligible for such cash or
stock bonuses, stock options and other incentives for meeting or
exceeding profit goals and objectives as shall be determined in their
discretion by the Company's President and CEO and/or its Board of
Directors.
(d) Reimbursement for Expenses. Employee will receive reimbursement
from the Company for expenses reasonably incurred by Employee on behalf
of the Company in accordance with the Company's normal policies with
respect to expense reimbursements.
(e) Annual Review. Notwithstanding any other provision of this
Agreement, Employee will be entitled to receive from the Company's Board
of Directors (or committee thereof) an annual review of her and the
Company's performance within ninety (90) days after the end of each
anniversary of the Effective Date of this Agreement and the opportunity
to negotiate increases in the compensation and benefit provisions of this
Agreement payable to the Employee starting with any renewal of this
Agreement.
(f) Severance. In the event this Agreement terminates for any reason
other than "Cause" as set forth in paragraph 5(a) of this Agreement, the
Company will make a severance payment to Employee of fifty percent (50%)
of her base salary at the time of termination (payable in accordance with
the Company's regular payroll schedule) and continue her health insurance
for an additional twelve months. The Company also will make the same
payment to and continuation of health insurance for Employee if Employee
resigns within thirty (30) days for the reasons set forth in paragraph
2(c) of this Agreement. Otherwise, the Company will have no obligation to
make any severance payments to or for Employee hereunder. Notwithstanding
the foregoing, Employee agrees that during any period during which
amounts payable pursuant to this paragraph 2(f) of this Agreement,
Employee shall diligently seek suitable new employment and that amounts
and benefits payable pursuant to this paragraph 2(f) shall terminate once
Employee has commenced such new employment.
4. Other Benefits During the Employment Period.
(a) Employee shall receive all other benefits substantially similar
to those generally currently available to executives or employees of
Optometrics LLC (collectively, "Benefits"). The Benefits currently
include, inter alia, health insurance, dental insurance, life insurance,
supplemental individual long-term disability insurance, disability
insurance and participation in Optometrics' LLC profit sharing plan.
(b) The Company shall furnish Employee with such working facilities
and other services as are suitable to Employee's positions and adequate
to the performance of her duties under this Agreement.
(c) Employee shall be entitled to five weeks paid vacation per
calendar year in accordance with the Company's policies then in effect
regarding vacations.
(d) Employee shall be entitled to (i) sole use of a Company car with
all normal related expenses paid by the Company consistent with the past
practices of Optometrics.
(e) The Company shall contribute 9% of the Employee's gross salary
to a 401k plan unless that amount is limited by government regulations.
(f) The Company shall pay for Employee's: (i) an annual health club
membership costing approximately $350 per year: (ii) membership fees for
the International Management Accountants; and (iii) home internet
connection.
5. Termination. This Agreement is subject to termination prior to
the expiration of its initial term or any extended term for only the
following reasons:
(a) Termination for Cause. The Company and Employee agree that no
future or further salary or other benefits (except for insurance benefits
for disability or death and health insurance shall continue pursuant to
the Company's policies, if any, for terminated employees or as provided
by law) will be payable to or for the Employee by the Company and the
employment relationship between the parties will terminate immediately
following the occurrence of any one or more of the following events:
(i) Employee violates any of the terms or conditions of this
Agreement in any material respect and such violation is not corrected
within fifteen (15) days after notice thereof is provided to Employee;
(ii) Employee commits a felony, gross misdemeanor, act of dishonesty
or moral turpitude or violates in any material way any of the rules,
regulations or policies of the Company; or
(iii) Employee engages in a general course of conduct of non-
cooperation, gross negligence or other gross misconduct materially and
adversely affecting the welfare, continuity or future of the Company's
business
(b) Death or Disability. If Employee dies or becomes totally and
permanently disabled during the term of employment, the parties agree
that the employment relationship and this Agreement will terminate
automatically. "Total disability" means the inability of Employee,
resulting from sickness, disease, injury or physical or mental illness,
to perform in all material respects all of the services pertaining to her
employment under this Agreement. Such total disability will be deemed
"permanent" if Employee has not recovered and returned to render the full
services of her employment hereunder within six (6) months of becoming
totally disabled.
6. Key Person Insurance. Employee agrees that during the term of
this Agreement, the Company may purchase key person life insurance
covering the life of Employee in the amount of $500,000, with the Company
to be named as the sole beneficiary. The Company shall pay the premiums
on such policy as they become due out of the funds of the corporation.
Employee represents and warrants that Employee has no knowledge of any
condition which would prevent such key person life insurance from being
obtained at rates for a healthy female of her age. For purposes of such
key person insurance, Employee agrees to submit to reasonable medical
examinations and shall cooperate with reasonable information requests.
7. Confidential Information/Trade Secrets. Employee acknowledges
that during the course and as a result of her employment hereunder and
previously with Optometrics LLC, Employee has received or had access to,
or contributed to the production of, Confidential Information or Trade
Secrets. Confidential Information or Trade Secrets means information that
is proprietary to or in the unique knowledge of Company (including
information discovered or developed in whole or in part by Employee); or
information that derives independent economic value, actual or potential,
from not being generally known to, and not being readily ascertainable by
proper means by, other persons who can obtain economic value from its
disclosure or use, and is the subject of efforts that are reasonable
under the circumstances to maintain its secrecy. Confidential Information
shall also include all terms and conditions of this Agreement.
Employee understands and acknowledges that all such information that
she has previously obtained or will obtain in the course of Employee's
employment with the Company constitutes Confidential Information or Trade
Secrets. In particular, Employee agrees that this information includes
among other things, procedures, manuals, confidential reports, lists of
clients, customers, suppliers, or products, and information concerning
the prices of charges paid by the Company's customers to the Company, or
by the Company to its suppliers.
Employee further acknowledges and appreciates that any Confidential
Information or Trade Secrets constitute valuable assets of the Company,
that the Company intends any such information to remain secret and
confidential. Employee therefore specifically agrees that except to the
extent required by Employee's duties to the Company or as permitted by
the express written consent of the Company's President and CEO or its
Board of Directors, Employee shall never, either during employment with
the Company or for a period of five (5) years thereafter, directly or
indirectly use, discuss or disclose any of its Confidential Information
or Trade Secrets or otherwise use such information to her own or a third
party's benefit.
8. Return of Property. Employee agrees that upon the termination of
her employment with the Company that she will immediately return to the
Company the originals and all copies of any and all documents (including
computer data, disks, programs, or printouts) that contain any customer
information, financial information, product information, or other
information that in any way relates to the Company, its products or
services, clients, suppliers or other aspects of its business(es).
Employee further agrees to not retain any summary of such information.
9. Non-competition. Employee understands and agrees that, in the
performance of her duties under this Agreement and as a result of her
previous employment by Optometrics LLC, Employee may at times meet with
the Company's customers and/or suppliers and that, as a consequence of
using or associating herself with the Company's name, goodwill and
professional reputation, Employee's employment will place her in a
position where Employee can further develop personal and professional
relationships with the Company's current and prospective customers and/or
suppliers. Employee further acknowledges that in the performance of her
duties under this Agreement and as a result of her previous employment by
Optometrics LLC, Employee has been and will continue to be provided with
certain specialized skills, training and/or know-how, as well as possess
the Confidential Information or Trade Secrets referred to above. Employee
understands and agrees that this goodwill and reputation, as well as
Employee's skills, training, know-how and knowledge of Confidential
Information or Trade Secrets could be used to compete with the Company.
Accordingly, Employee agrees that, during the course of Employee's
employment with Company and for (15) months from the date of Employee's
termination of employment (whether voluntarily or involuntarily) or the
termination of this Agreement at the end of any term, Employee shall not
directly or indirectly, individually or with others:
(a) Compete with the Company in the design, development, manufacture
or sale of any of its then current or development-stage products or
services.
(b) Cause or attempt to cause any existing customer of the Company
to divert, terminate, limit, modify adversely or not enter into any
business relationship with the Company.
(c) Solicit, employ or contract with any of Company's or any of its
subsidiaries' employees. The term "employ" for purposes of this paragraph
means to enter into an arrangement for services as a full-time or part-
time employee, independent contractor, agent or otherwise.
Employee further agrees during the above-stated fifteen (15) month period
to inform any new person, firm or entity with whom Employee proposes to
enter into an employment or a business relationship, before accepting
such employment or entering into such a relationship, of the restrictions
on Employee set forth in Paragraphs 7, 8 and 9 of this Agreement.
10. Consideration. Employee and Company agree that the provisions of
this Agreement are reasonable and necessary for the protection of
Company.
11. Remedies for Breach. Each party acknowledges that breach by the
other party of the provisions of this Agreement will cause the first
party irreparable harm that is not fully remedied by monetary damages.
Accordingly, each party agrees that the other party shall, in addition to
any relief afforded by law, be entitled to injunctive relief. Each party
agrees that both damages at law and injunctive relief shall be proper
modes of relief and are not to be considered alternative remedies.
Furthermore, each party agrees that all actions, suits or proceedings
arising under or relating to this Agreement may be brought only in a
court of general jurisdiction in and for Middlesex County, Massachusetts
or the United States District Court for the District of Massachusetts, to
the jurisdiction and venue of which each party hereto consents and waives
the right to argue forum non conveniens.
12. General Provisions. The parties acknowledge and agree as
follows:
(a) This Agreement contains the entire understanding of the parties
with regard to all matters contained herein. There are no other
agreements, conditions, or representations, oral or written, express or
implied, with regard to such matters. This Agreement supersedes and
replaces any prior agreement between the parties generally relating to
the same subject matter.
(b) This Agreement may be amended or modified only by a writing
signed by all parties.
(c) Waiver by either Company or Employee of a breach of any
provision, term or condition hereof shall not be deemed or construed as a
further or continuing waiver thereof or a waiver of any breach of any
other provision, term or condition of this Agreement.
(d) The rights and obligations of Company hereunder may be
transferred or assigned to any successor or assign of Company. The term
"Company" as used herein is intended to include Dynasil Corporation of
America, its successors and/or assigns, if any. No assignment of this
Agreement shall be made by Employee, and any purported assignment shall
be null and void.
(e) Employee's obligations under Paragraphs 7, 8 and 9 of this
Agreement shall survive any change in Employee's employment status with
Company, by promotion or otherwise, or the termination of Employee's
employment with Company.
(f) If any Court finds any provision or part of this Agreement to be
unreasonable, in whole or in part, such provision shall be deemed and
construed to be reduced to the maximum duration, scope or subject matter
allowable under applicable law. Any invalidation of any provision or part
of this Agreement will not invalidate any other part of this Agreement.
(g) This Agreement will be construed and enforced in accordance with
the laws and legal principles of the Commonwealth of Massachusetts.
(h) This Agreement may be executed in any number of counterparts,
including counterparts transmitted by telecopier or facsimile, any one of
which shall constitute an original of this Agreement. When counterparts
of facsimile copies have been executed by all parties, they shall have
the same effect as if the signatures to each counterpart or copy were
upon the same document and copies of such documents shall be deemed valid
as originals. The parties agree that all such signatures may be
transferred to a single document upon the request of any party.
This Agreement is intended to be a legally binding document fully
enforceable in accordance with its terms.
DYNASIL CORPORATION OF AMERICA
By:
Xxxxx X. Xxxxxx
President and CEO
EMPLOYEE:
Xxxxx Xxxxxxx
