DYNASIL CORPORATION OF AMERICA
FORMER OWNER WORK CONTINUATION AGREEMENT
THIS AGREEMENT is effective as of the closing of the RMD, Inc.
Merger Agreement and the RMD Instruments, LLC Asset Purchase sale to
Dynasil Corporation of America (the "Closing Date"), by and between
DYNASIL CORPORATION OF AMERICA, a Delaware 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 Xxxxxx ("Employee"), whose address is 00 Xxxxxxxx
Xx., Xxx Xxxx, XX, 00000.
1. Employment. Effective at the Closing Date (the "Effective
Date"), the Company agrees to employ Employee as Vice President of the
Company's subsidiary RMD Instruments Corporation, with such duties as are
customary for such position. Employee shall perform these duties subject
to the direction and supervision of the Executive Leadership and Board of
Directors of the Company. Employee accepts such employment and agrees to
devote his full time, effort and skills to the conduct of the combined
Company's 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 the Company's best interests.
2. Term.
(a) The term of employment of Employee hereunder shall be for a
period of twenty-four (24) months commencing on the Closing Date, subject
to the conditions set forth herein.
3. Compensation.
(a) Base Salary. Employee shall receive as base salary, during the
Term of this Agreement, of $20,833 per month (which is equivalent to Two
Hundred and Fifty Thousand Dollars ($250,000) over a twelve month
period).
(b) Stock Options. Subject to ratification by the Board of
Directors, Dynasil will issue on the Effective Date 100,000 Dynasil
shares at an exercise price of 33% above market price with a three year
term. An additional 20,000 shares will be issued on the Effective Date at
an exercise price of 33% above market price with a three year term and
these options will vest on October 15, 2009 contingent upon the RMD
Instruments meeting the revenue forecast covering July 2008 to September
2009 (total revenue of $13,700,000).
(c) 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.
(d) Severance. In the event the Company terminates the Employee's
employment 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 the balance of the first twelve (12) months of base pay or
20% of annual base pay, whichever is greater. Otherwise, the Company will
have no obligation to make any severance payments to or for Employee.
4. Other Benefits During the Employment Period.
(a) Employee shall receive all other benefits substantially similar
to those received by other employees of the successor companies to RMD,
Inc. and RMD, LLC (collectively called "RMD") (collectively, "Benefits").
(b) The Company shall furnish Employee with such working facilities,
support and other services as the Company believes are suitable to
Employee's positions and adequate to the performance of his duties under
this Agreement.
(c) Dynasil will reimburse the Employee at the rate of $2,625/mo
(which includes parking) for a Boston apartment through October 2008 with
the understanding that the Employee will be located on site 3-4 days per
week at minimum (excepting business travel) and if the Employee
terminates the lease earlier then the reimbursement will end earlier.
This will be taxable income for the Employee.
5. Termination. This Agreement is subject to termination prior to
the expiration of its initial term or any extended term for the following
reasons:
(a) Termination for Cause. The Company and Employee agree that no
future or further salary or other benefits (except for any benefits which
are required 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, negligence or other misconduct materially and adversely
affecting the welfare, reputation, 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 his
employment under this Agreement. Such total disability will be deemed
"permanent" if Employee has not recovered and returned to render the full
services of his employment hereunder within six (6) months of becoming
totally disabled.
(c ) Termination by Employee.
(d) Termination by Company without Cause.
6. Confidential Information/Trade Secrets. Employee acknowledges
that during the course and as a result of his employment hereunder and
previously with RMD, 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 the Company and/or
RMD (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
he has previously obtained or will obtain in the course of Employee's
employment hereunder 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 paid by the Company's', and/or RMD's customers to any of them,
or by any of them to any of their suppliers.
Employee further acknowledges and appreciates that any Confidential
Information or Trade Secrets constitute valuable assets of the Company
and RMD and that each of them 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 hereunder 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 his own
or a third party's benefit.
7. Return of Property. Employee agrees that upon the termination
of his employment hereunder, that he 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 any of them, any of their products
or services, clients, suppliers or other aspects of any of their
business(es). Employee further agrees to not retain any summary of such
information.
8. Non-competition. Employee understands and agrees that, in the
performance of his duties under this Agreement and as a result of his
previous employment by RMD, Employee may at times meet with the
Company's, RMD's customers and/or suppliers and that, as a consequence of
using or associating himself with their name, goodwill and professional
reputation, Employee's employment will place him in a position where
Employee can further develop personal and professional relationships with
the Company's, and/or RMD's current and prospective customers and/or
suppliers. Employee further acknowledges that in the performance of his
duties under this Agreement and as a result of his previous employment by
RMD, 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
and RMD. Accordingly, Employee agrees that, during the course of
Employee's employment with Company and for five years from the date of
Employee's inception of employment under this agreement except as
approved by the Company in writing which will not be unreasonably
withheld, Employee shall not directly or indirectly, individually or with
others:
(a) 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.
(b) 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.
(c) Compete with the Company in the design, development, manufacture
or sale of any of its then current or contemplated products or services.
Employee further agrees during the above-stated five year 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.
9. Consideration. Employee and Company agree that the provisions
of this Agreement are reasonable and necessary for the protection of
Company.
10. 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.
11. 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 the 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, except to the extent provided
therein, 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 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 Xxxxxx
