EMPLOYEE AGREEMENT
THIS EMPLOYEE AGREEMENT made as of August
1, 2008, by and between Lightwave Logic, Inc., a Nevada corporation
(the “ Company ”), whose principal place of
business is at 2601 Annand Dr., #16, Wilmington, Delaware 19808;
and James S. Marcelli (“ Employee ”), who
resides at 4327 Cheyenne Drive, Larkspur, Colorado 80118.
WHEREAS , the Company wishes to procure the services of
Employee under the terms and conditions set forth and Employee
wishes to be employed on these terms and conditions.
WHEREAS , the parties to this Employee Agreement wish to
enter into a written expression of their relationship as Employer
and Employee.
THEREFORE , in consideration of the agreements contained in
this Employee Agreement, the parties, intending to be legally
bound, agree as follows:
ARTICLE 1
Employment
1.1.
Employment . The Company agrees to employ Employee, and Employee
accepts employment with the Company, on and subject to the terms
and conditions set forth in this Employee Agreement.
1.2.
Term .
Subject to the provisions for termination
as provided in Article 9 of this Employee Agreement, the term of
this agreement shall begin on August 1, 2008 and shall terminate 12
months thereafter. This Employee Agreement may be renewed for
successive 12 month terms upon the written agreement of the parties
hereto that shall be delivered by each party to the other not less
than 60 days prior to the expiration of the existing
term.
ARTICLE 2
Duties
2.1.
Position and Duties.
The Company agrees to employ Employee to
act as its Chief Executive Officer. Employee shall be responsible
for performing the duties as described on Appendix A
attached hereto and made a part hereof. Employee agrees that he
will serve the Company faithfully and to the best of his ability
during the term of employment, under the direction of the board of
directors of the Company. The Company and Employee may jointly from
time to time to change the nature of Employee’s duties and
job title.
2.2.
Time Devoted to Work.
Employee agrees that he will devote
all of the necessary business time, attention, and energies, as
well as Employee’s best talents and abilities to the business
of the Company in accordance with the Company’s instructions
and directions. Employee may engage in other business
activities unrelated to the Company during the term of this
Employee Agreement so long as such other business activities do not
interfere with the terms and conditions of this Employee
Agreement.
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ARTICLE 3
Place of Employment
3.1.
Place of Employment.
Employee shall perform his
duties under this Employee Agreement at 4327 Cheyenne Drive,
Larkspur, Colorado 80118.
ARTICLE 4
Compensation of
Employee
4.1.
Base Compensation.
For all services rendered by
Employee under this Employee Agreement, the Company agrees to pay
Employee the rate of $14,500 per month, which shall be payable to
Employee not less frequently than monthly, or as is consistent with
the Company’s practice for its other employees.
4.2.
Other Compensation.
Employee shall receive other
compensation as more fully described on Appendix B ,
attached hereto and made a part hereof.
4.3.
Reimbursement for Business
Expenses. Subject to the approval of the Company, the
Company shall promptly pay or reimburse Employee for all reasonable
business expenses incurred by Employee in performing
Employee’s duties and obligations under this Employee
Agreement, but only if Employee properly accounts for expenses in
accordance with the Company’s policies.
ARTICLE 5
Vacations and Other Paid
Absences
5.1.
Vacation Days. Employee shall be entitled to the same paid
vacation days each calendar year during the term of this Employee
Agreement as authorized by the Company for its other
employees.
5.2.
Holidays. Employee shall be entitled to the same
paid holidays as authorized by the Company for its other
employees.
5.3.
Sick Days and Personal Absence
Days. Employee shall be
entitled to the same number of paid sick days and personal absence
days as authorized by the Company for its other
employees.
ARTICLE 6
Key Man Life Insurance
During the term of this Employee
Agreement, the Company shall maintain in effect a key man life
insurance policy on the life of Employee in the face amount of
$1,000,000 or such higher amount as the Company shall in its sole
discretion decide to maintain during the term of this Employee
Agreement. Any proceeds payable under the policy shall be
paid to the Company.
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ARTICLE 7
Fringe Benefits
Employee shall be entitled to participate
in and receive benefits from all of the Company’s employee
benefit plans that are now, or in the future may be, maintained by
the Company for its employees, including, without limitation, the
Company’s health insurance plan. Notwithstanding Article 1.2
of this Employee Agreement, for health insurance plan purposes
only, the Employee shall receive Company health insurance benefits
(or credit compensation therefore) as if Employee’s
employment commenced on July 1, 2008. No amounts paid to Employee
from an employee benefit plan shall count as compensation due
Employee as base salary or additional compensation. Nothing
in this Employee Agreement shall prohibit the Company from
modifying or terminating any of its employee benefit plans in a
manner that does not discriminate between Employee and other
Company employees.
ARTICLE 8
Maintenance of Liability
Insurance
So long as Employee shall serve as an
executive officer of the Company pursuant to this Employee
Agreement, the Company shall obtain and maintain in full force and
effect a policy of director’s and officer’s liability
insurance in reasonable amounts from an established and reputable
insurer. In all policies of such insurance, Employee shall be named
as an insured in such manner as to provide Employee the same rights
and benefits as are accorded to the most favorably insured of the
Company’s officers or directors.
ARTICLE 9
Termination of
Employment
9.1.
Termination of Employment.
Employee’s employment hereunder
shall automatically terminate upon (i) his death (ii) the
expiration of the term of this Employee Agreement; or (iii)
Employee voluntarily leaving the employ of the Company. In the
event that Employee’s employment terminates upon his death
and the key man life insurance is in effect pursuant to section 6
herein, then the Company will continue to pay the compensation
described in section 4.1 to Employee’s estate through the
remainder of term of this Employee Agreement, or 90 days, whichever
is longer.
9.2.
Termination For Employee’s
Failure to Meet Performance Standard . Employee’s employment with the Company
shall terminate, at the Company’s discretion, upon 15 days
prior written notice to Employee if the Company terminates his
employment hereunder for "cause". For purposes hereof, "cause"
shall include (i) Employee’s willful malfeasance,
misfeasance, nonfeasance or gross negligence, (ii) any willful
misrepresentation or concealment of a material fact made by
Employee in connection with this Employee Agreement; (iii) the
willful breach of any covenant made by Employee hereunder; or (iv)
the failure of Employee to meet the performance standards more
fully described in Appendix A attached hereto and
made a part hereof.
Notwithstanding the above, if the
Employee is terminated by the Company without cause, the Company
shall be obligated to pay to Employee the compensation set forth in
Section 4
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hereof for the remainder of the term of
this Employee Agreement.
ARTICLE 10
Confidential
Information
10.1.
Disclosures While Employed by
the Company . Employee acknowledges that, in performing
the duties required by this Employee Agreement, Employee will be
making use of, acquiring and adding to the confidential and
proprietary information of the Company and/or those persons or
entities directly or indirectly controlling or controlled by, or
under direct or indirect common control with, the Company (each an
“ Affiliate ” and collectively, the “
Affiliates ”), which (i) is of a special nature and
value, (ii) is not public information or is not generally known or
available to the Company’s and/or the Affiliates’
competitors, (iii) is known only by the Company and/or the
Affiliates and those of their respective employees, independent
contractors, consultants, suppliers, customers or agents to whom
such data and information must be confided in order to apply it to
the uses intended, and (iv) relates to matters such as, but not
limited to, the Company’s and the Affiliates’
respective methods of operation, internal structure, financial
affairs, programs, software, equipment and techniques, existing and
contemplated facilities, products and services, know-how,
inventions, systems, devices (whether or not patentable), methods,
ideas, procedures, manuals, confidential studies and reports, lists
of suppliers and customers and prospective suppliers and customers,
financial information and practices, plans, pricing, selling
techniques, sales and marketing programs and methods, names,
addresses and telephone numbers of the Company’s and/or the
Affiliates’ suppliers and customers, credit and financial
data of the Company’s and/or the Affiliates’ suppliers
and customers, particular business requirements of the
Company’s and/or the Affiliates’ suppliers and
customers, special methods and processes involved in designing,
producing and selling the Company’s and/or the
Affiliates’ products and services, any other information
related to the Company’s and/or the Affiliates’
suppliers and customers that could be used as a competitive
advantage by the Company’s and/or the Affiliates’
competitors if revealed or disclosed to such competitors or to
persons or entities revealing or disclosing same to such
competitors, and all “ trade secrets ” (as that
term is defined in O.C.G.A. s. 10-1-761, as amended) of the
Company and/or the Affiliates, all of which, together with any and
all extracts, summaries and photo, electronic or other copies or
reproductions, in whole or in part thereof, stored in whatever
medium (including electronic or magnetic), shall be deemed the
Company’s and/or the Affiliates’ exclusive property, as
applicable, and shall be deemed to be “ Confidential
Information .” Employee acknowledges that
the Confidential Information has been and will continue to be of
central importance to the business of the Company and the
Affiliates, and that disclosure of it to, or its use by, others
could cause substantial loss to the Company and the Affiliates.
In consideration of Employee’s employment hereunder,
Employee agrees that, at all times during the term of this Employee
Agreement, and (i) with respect to all Confidential Information
constituting “trade secrets,” for so long thereafter as
such Confidential Information continues to constitute “trade
secrets” (or for the period beginning on the last day of the
term of this Employee Agreement and ending five (5) years
thereafter, whichever is longer); and (ii) with respect to all
Confidential Information not constituting “trade
secrets,” for the period beginning on the last day of the
term of this Employee Agreement and ending five (5) years
thereafter, Employee shall not, directly or indirectly, use,
divulge or disclose to any person or entity, other than those
persons or entities employed or engaged by the Company who or which
are authorized to receive such information, any of such
Confidential Information, and Employee shall hold all of the
Confidential Information confidential and inviolate and will not
use such
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Confidential Information against the best
interests of the Company or any of the Affiliates.
10.2.
Disclosures After Employment
Terminates; Return of Records. Employee acknowledges and agrees that all
supplier, customer, employee and contractor files, contracts,
agreements, financial books, records, instruments and documents,
supplier and customer lists, memoranda, data, reports, sales
documentation and literature, software, rolodexes, telephone and
address books, letters, research, listings, and any other
instruments, records or documents relating or pertaining to (i) the
customers or suppliers of the Company and/or any of the Affiliates
serviced
