Exhibit 10.12
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT
(“Agreement”) is made and entered into this 14 day of
February, 2007, by and between LightPath Technologies, Inc., a
Delaware corporation (“LightPath”), and Kenneth Brizel
(the “Executive”).
RECITALS
A. LightPath is a designer,
developer, manufacturer, and distributor of optical
components.
B. The Executive is the
President/Chief Executive Officer of LightPath.
C. Both parties have determined that
it is mutually beneficial to have this Agreement setting forth in
writing the terms and conditions under which the Executive shall
continue serving LightPath.
THEREFORE, in consideration of the
mutual covenants and promises set forth below, and other good and
valuable consideration, the receipt and sufficiency of which is
acknowledged, the parties expressly, knowingly, and voluntarily
agree as follows:
1. Employment .
LightPath currently employs the Executive as its President/Chief
Executive Officer, and the Executive’s continued employment
with LightPath shall be upon the terms and conditions set forth
below.
2. Duties and Obligations
.
a. Duties . The Executive
shall have the responsibilities and duties reasonably accorded to,
and expected of, the President/Chief Executive Officer of LightPath
and as determined by LightPath’s Board of Directors
(“the Board”) and the Executive will report directly to
the Board and will have full responsibility for all activities of
LightPath and be required to undertake the duties and
responsibilities assigned to the Executive by the Board.
b. Obligations . The
Executive shall devote all of his attention, skills, and efforts to
the business and affairs of LightPath, and, to the extent necessary
to discharge the responsibilities assigned to the Executive under
this Agreement, use the Executive’s reasonable best efforts
to carry out such responsibilities faithfully and efficiently.
Accordingly, the Executive shall not be engaged in any other
business activity, whether or not such activity is pursued for
gain, profit, or other pecuniary advantage.
3. Term of the Agreement
. This Agreement shall continue indefinitely unless terminated
in writing by either party.
4. Compensation . For
all services rendered by the Executive, LightPath shall compensate
him as follows:
a. Annual Base Salary . The
Executive shall be paid an initial annual base salary of two
hundred and eighty-six thousand dollars ($286,000.00). On an annual
basis, the Executive’s performance shall be evaluated by the
Board which may change the Executive’s annual base salary,
if, in their absolute discretion and judgment, any such change is
warranted.
b. Annual Cash Bonus . The
Executive is eligible to receive an annual cash bonus (up to a
maximum of fifty-percent of his then-annual salary) if, in the
Board’s absolute discretion and judgment, any such cash bonus
is warranted.
c. Benefits . The Executive
is entitled to participate in all other compensation and benefit
plans in which other employees of LightPath are generally eligible
to participate, in accordance with the terms and conditions of such
plans. LightPath may, from time to time, in its absolute and sole
discretion, change, modify, or discontinue the benefits which are
offered to the Executive and/or other employees.
d. Expenses . LightPath will
reimburse the Executive for all reasonable expenses incurred by him
in carrying out his duties under this Agreement, provided that the
Executive complies with the generally applicable policies,
practices and procedures of the LightPath regarding documentation
of such expenses. In the event of any dispute, the Board shall have
the sole discretion to determine the reasonableness of any such
expenses.
5. Non-Disclosure and Non-Use
of Confidential Information . The Executive acknowledges
that as a result of his employment by LightPath, he will have
access to and be entrusted with trade secret, proprietary and other
confidential information, not generally known in the industry in
which LightPath is engaged – including, without limitation,
non-public information about LightPath’s products, services,
concepts, techniques, processes, systems, devices, marketing
techniques, finances, business plan(s), compensation
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structure, pricing, market research, actual and
prospective customers, lenders, and suppliers, and all other
information of a trade secret, proprietary, or confidential nature
(known herein as “Confidential Information”). The
Executive agrees that during his employment and at all times
thereafter, he will hold in the strictest confidence, and shall not
disclose (except as required by applicable law, court order or in
connection with the performance of Employee’s duties
hereunder) or use for his own benefit or gain (or for the benefit
or gain of any person or entity other than LightPath), any such
Confidential Information. The Executive further agrees that upon
the termination of his employment, or at any other time requested
by LightPath, he will deliver to LightPath all writings, computer
data, photographs, or other written material or tangible thing
containing Confidential Information that is in the
Executive’s possession, custody or control, whether made,
written, or obtained by the Executive or others, as well as all
equipment and property belonging to LightPath. The Executive agrees
that he shall retain no copies of such material, either for the
Executive’s own use or otherwise. The Executive acknowledges
and agrees that his disclosure or use of, any such Confidential
Information, or failure to promptly return the materials, equipment
or property referenced above, would irreparably harm LightPath. The
only exception to this confidentiality and non-disclosure provision
is that, in a subsequent proceeding in which LightPath alleges a
breach by the Executive of this paragraph 5, the Executive shall
not be prohibited from disclosing LightPath’s Confidential
Information in such proceeding only as is necessary in order to
defend against such allegations; provided that the Executive shall
cooperate fully with LightPath to ensure that its Confidential
Information is filed and maintained under seal with the court. The
Executive’s obligations under this paragraph 5 shall survive
the termination (and/or assignment) of this Agreement and/or his
employment with LightPath.
6. Assignment of Proprietary
Information . Except as may be required in the course of
employment by LightPath, the Executive agrees that any and all
Proprietary Information, as hereinafter defined, which the
Executive has made, conceived of, developed or originated, either
individually or jointly with any other person or persons at any
time during the period of employment by LightPath, whether during
working hours or any other time, which relate in any way to the
business or the type of business now or
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hereafter engaged in or contemplated by
LightPath during the period of the Executive’s employment or
which result from or may be suggested by any work the Executive
does for LightPath or at LightPath’s request, shall be the
property of LightPath. As used herein, “Proprietary
Information” shall mean any and all proprietary property
including but not limited to all techniques, processes, devices,
charts, manuals, payroll, and improvements thereto together with
the names and identities of all clients and prospective clients,
price lists, suppliers and all other information or materials which
LightPath may from time to time designate and treat as confidential
and proprietary or as a trade secret.
The Executive shall promptly
disclose and assign such Proprietary Information to
LightPath’s representatives and do all such acts, and execute
and deliver all such documents, as may be necessary to vest in
LightPath the title to all such Proprietary Information and enable
LightPath to properly prepare and prosecute any and all
applications for patents, trademarks or copyrights thereon as well
as all reissues, renewals and extensions thereof, so that LightPath
shall be the sole and absolute owner of all right, title and
interest in said proprietary property. It is understood and agreed
that the words “which relate in any way to the business or
the type of business now or hereafter carried on or contemplated by
LightPath” shall properly cover any reasonable development or
extension of LightPath’s field of operation (as such field of
operation existed during the period of Executive’s
employment). These obligations shall continue beyond the
termination or expiration of the Executive’s employment with
respect to inventions, discoveries and developments conceived or
made by the Executive during the period of employment and shall be
binding on the Executive’s assigns, executors, heirs,
administrators and other legal representatives. The Executive
agrees that all correspondence, drawings, reports, ideas,
blueprints, manuals, letters, notes, analyses, notebooks, reports,
charts, programs, proposals or any other documents concerning
LightPath’s customers or products or processes, whether or
not prepared by and in the course of employment, alone or in
conjunction with others, is the property of LightPath and upon
termination or expiration of employment for any reason, the
Executive shall promptly return to LightPath any such documents in
his possession, custody or control.
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7. Non-Competition and
Non-Solicitation Agreement . The Executive’s
obligations under this paragraph 7 shall survive the termination
(and/or assignment) of this Agreement and/or his employment with
LightPath:
a. The Executive agrees that during
his employment with LightPath and for twelve months following his
separation from said employment (for any reason), he will not
directly or indirectly, as either an owner, operator, agent,
employee, independent contractor, investor, advisor, partner,
officer, director, shareholder or in any other capacity, engage in
a business which competes in any way with the business of LightPath
(provided, however, that nothing herein shall prevent the Executive
from investing as less than a 5% shareholder in the securities of
any publicly traded company).
b. The Executive agrees that during
his employment with LightPath and for twelve months following his
separation from said employment (for any reason), he will not
directly or indirectly induce any employee of LightPath to
terminate or negatively alter his or her relationship with
LightPath; provided, however that engaging in general solicitation
(not targeted at LightPath employees) through newspaper
advertising, the
