Lightpath Technologies Inc 8-K, filed Feb 28, 2020
Lightpath Technologies Inc (LPTH)
8-K
2020-02-28
For: 2020-02-24
View Original
Added on
April 10, 2026
About this 8-K
Lightpath Technologies Inc filed this 8-K on February 28, 2020, reporting on events of February 24, 2020.
Items reported
- Item 5.02: Director or officer change, or executive pay
- Item 7.01: Regulation FD disclosure
- Item 9.01: Financial statements and exhibits
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
February 24, 2020
Date of Report (Date of earliest event reported)
LIGHTPATH TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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000-27548
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86-0708398
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(State or other jurisdiction of incorporation or
organization)
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(Commission File Number)
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(I.R.S. Employer Identification Number)
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2603 Challenger Tech Court, Suite 100
Orlando, Florida 32826
(Address of principal executive office, including zip
code)
(407) 382-4003
(Registrant’s telephone number, including area
code)
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
☐Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
☐Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12)
☐Pre-commencement communications pursuant to Rule
14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐Pre-commencement communications pursuant to Rule
13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the
Act:
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Class A
Common Stock, par value $0.01
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LPTH
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The
Nasdaq Stock Market, LLC
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Indicate
by check mark whether the registrant is an emerging growth company
as defined in Rule 405 of the Securities Act of 1933 (17 CFR
§230.405) or Rule 12b-2 of
the Securities Exchange Act of 1934 (17 CFR §240.12b-2 of this
chapter).
Emerging
growth company ☐
If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards providing
pursuant to Section 13(a) of the Exchange Act. ☐
LightPath
Technologies, Inc.
Form
8-K
Item 5.02. Departure of Directors or Certain Officers; Election of
Directors; Appointment of Certain Officers; Compensatory
Arrangements of Certain Officers.
LightPath Technologies, Inc. (the “Company”) previously
announced on June 3, 2019, that J. James Gaynor, the
Company’s current President and Chief Executive Officer (the
“CEO”) intends to retire on June 30, 2020. Following
such announcement, the Company’s Board of Directors (the
“Board”) formed an ad hoc CEO Search Committee (the
“Committee”) comprised of independent directors. The
Committee engaged a third-party search firm to assist in
identifying and evaluating candidates to succeed Mr. Gaynor.
Following such evaluation, on February 24, 2020 the Committee
recommended, and the Board approved, the appointment of Sam Rubin
as the Company’s new President and CEO. Mr. Rubin became an
employee on the same date and will become President and CEO
effective March 9, 2020. On the same date, the Board increased the
size of the Board from eight to nine members and appointed Mr.
Rubin to fill the resulting vacancy, effective March 9, 2020. Mr.
Rubin will serve as a Class III director until the Company’s
next annual stockholders meeting expected to be held in November
2020. As an executive officer of the Company, Mr. Rubin will
receive no additional compensation for his service as a director.
In his role as President and CEO, Mr. Rubin will report to the
Board. In connection with Mr.
Rubin’s appointment, J. James Gaynor, the Company’s
current President and CEO, will transition into the role of a
consultant to the Board of Directors (the “Board”),
effective March 9, 2020, until his retirement on June 30, 2020. The
terms and conditions of Mr. Gaynor’s letter employment
agreement, including his salary and other benefits as previously
determined by the Compensation Committee (the “Compensation
Committee”), will remain unchanged.
Mr.
Rubin, age 46, most recently served as the General Manager for the
Imaging Systems Division of Thorlabs, Inc.
(“Thorlabs”), beginning in 2015. In this role, Mr.
Rubin was responsibility for all Life Science activities and
supervised Thorlabs’ operations in China. From 2009 to 2015,
Mr. Rubin served as the General Manager of Thorlabs’ Chinese
operations, from 2007 to 2009, he was the Director of Operations at
Thorlabs, and from 2005 to 2007, served as the Director of
Marketing at Thorlabs. Mr. Rubin holds a Bachelor of Science degree
in Electronic Engineering from Ben Gurion University, a Master of
Business Administration degree from New York University, Stern
School of Business, and is a graduate of the Executive Education,
Program for Leadership Development at Harvard Business
School.
There
is no arrangement or understanding between Mr. Rubin and any other
person pursuant to which he was selected as CEO. Mr. Rubin has no
family relationships with any of the Company’s directors or
executive officers, and he has no direct or indirect material
interest in any transaction required to be disclosed pursuant to
Item 404(a) of Regulation S-K.
In
connection with Mr. Rubin’s appointment, the Company entered
into an employment agreement with Mr. Rubin on February 24, 2020
(the “Agreement”). The Company and Mr. Rubin orally
agreed that Mr. Rubin’s appointment as the President and CEO
of the Company would be effective on March 9, 2020. The
Agreement does not provide for a specified term of employment and
Mr. Rubin’s employment is on an at-will basis. Mr. Rubin will
receive an initial annual base salary of $350,000, payable in equal
bi-weekly installments, and will be eligible to participate in all
of the Company’s bonus, incentive compensation, and
performance based compensation plans, including, but not limited to
the LightPath Technologies, Inc. 2018 Stock and Incentive
Compensation Plan (the “Plan”), under which the
Company’s executive officers are eligible to earn incentive
compensation consisting of cash and/or equity awards based upon the
achievement of certain individual and/or Company performance goals
set by the Compensation Committee. The Company’s incentive
bonus program includes different levels of bonus opportunity based
on a participant’s position with the Company. For this
purpose, Mr. Rubin will be considered a “level one”
participant. Mr. Rubin will be eligible to earn a one-time bonus of
up to $100,000 based on qualitative factors that will be determined
by the Compensation Committee (the “Special 2020
Bonus”). The Special 2020 Bonus will be the only incentive
compensation Mr. Rubin will be eligible to earn for the
Company’s 2020 fiscal year. Any earned Special 2020 Bonus
will be paid in October 2020.
Mr.
Rubin will be eligible to participate in the Company’s
employee benefit, welfare, and other plans, as may be maintained by
the Company from time to time. The Company has agreed to provide a
relocation allowance of up to $50,000 payable by the Company on
receipt of relocation expense receipts. The total period for
relocation reimbursement concludes on August 1, 2020, however
exceptions may be granted by the Compensation Committee. The
Company will provide up to $15,000 in addition to the reimbursed
relocation expenses to account for federal income taxes incurred by
Mr. Rubin as a result of the relocation reimbursement. Mr. Rubin
will be required to reimburse the Company a prorated portion of all
expenses paid by the Company if he leaves the Company for any
reason other than death, disability, or discharge without cause
within twelve (12) months of his relocation.
Pursuant
to the Agreement, the Compensation Committee will cause the Company
to grant Mr. Rubin, on a one-time basis, a restricted stock award
(the “Restricted Stock Award”) consisting of 100,000
shares of the Company’s Class A common Stock, par value $0.01
per share (the “Common Stock”), with 50% of the shares
of the Common Stock vesting on the third anniversary of the grant
date, and the remaining 50% of the shares of the Common Stock
vesting on the fourth anniversary of the grant date. The Restricted
Stock Award will be in all respects subject to the Plan and any
amendments thereto, and conditioned upon Mr. Rubin’s
execution of a restricted stock award agreement evidencing the
grant of the Restricted Stock Award (the “Restricted Stock
Agreement”). The terms and conditions of the vesting of the
Restricted Stock Award, including, if at all, after termination of
Employee’s employment or services, are governed by the Plan
and the Restricted Stock Agreement.
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In
addition, the Compensation Committee will cause the Company to
grant Mr. Rubin an option to purchase 225,000 shares of the Common
Stock (the “Option Award”), having an exercise price
per share equal to the greater of (i) $1.37 per share or (ii) 115%
of the closing bid price of the Common Stock as reported on The
Nasdaq Capital Market on the grant date, or February 24, 2020.
Fifty-thousand
shares of the Common Stock underlying the stock option will vest on
each of the first, second, and third, anniversaries of the grant
date, with the remaining seventy-five thousand shares of the Common
Stock vesting on the fourth anniversary of the grant date. The
Option Award will have a ten-year term, subject to earlier
expiration as provided in the Plan or the Option Agreement, as
defined below. The Option Award will be in all respects subject to
the Plan and any amendments thereto, and conditioned upon Mr.
Rubin’s execution of a stock option agreement evidencing the
grant of the Option Award (the “Option Agreement”). The
terms and conditions upon which the Option Award may be exercised,
including, if at all, after termination of Mr. Rubin’s
employment or services, are governed by the Plan and the Option
Agreement.
The
foregoing description of the Agreement is not complete and is
qualified in its entirety by reference to the full text of the
Agreement, a copy of which is filed as Exhibit 10.1 to this Current
Report on Form 8-K and is incorporated by reference
herein.
Item
7.01
Regulation
FD Disclosure.
On
February 26, 2020, the Company issued a press release announcing
the appointment of Mr. Rubin as CEO. A copy of the press release is
attached as Exhibit 99.1 to this Current Report on Form 8-K and is
incorporated by reference herein. The information in the press
release shall not be deemed “filed” for purposes of
Section 18 of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) or otherwise subject to the liabilities
of that section, nor shall it be deemed incorporated by reference
in any filing under the Securities Act of 1933, as amended, or the
Exchange Act.
Item 9.01. Financial Statements and
Exhibits.
(d)
Exhibits
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Exhibit No.
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Description
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Employment
Agreement between the Company and Mr. Sam Rubin
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Press
Release dated February 26, 2020
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3
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this Report to be signed in
its behalf by the undersigned, thereunto duly
authorized.
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LIGHTPATH
TECHNOLOGIES, INC.
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Dated:
February 27, 2020
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By:
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/s/
Donald O. Retreage, Jr.
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Donald O. Retreage, Jr., Chief Financial Officer
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Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (the “Agreement”), is entered into
by and between Mr. Sam Rubin (“Employee”), and
LightPath Technologies, Inc., a Delaware corporation, having a
principal address of 2603 Challenger Tech Ct., Suite 100, Orlando,
Florida 32826 (“Company”) and is effective as of the
date Employee and the Company execute this Agreement, whichever
date is latest (“Effective Date”).
RECITALS
Company
desires to employ Employee in the capacity described below, on the
terms and conditions, and subject to the rights of termination
hereinafter set forth, and Employee is willing to accept such
employment on such terms and conditions.
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter
set forth, Employee and Company have agreed and do hereby agree as
follows:
AGREEMENT
1.
Duties:
Company hereby
employs, engages and hires Employee as Chief Executive Officer, and
Employee hereby accepts and agrees to such hiring, engagement, and
employment. Employee agrees to perform any and all duties and to
assume any and all responsibilities that may be assigned from time
to time by the Board of Directors of Company.
a.
Employee will
devote Employee’s full time, energy, and skill to the
performance of duties for Company and for the benefit of the
Company, reasonable vacations authorized by the Board of Directors
and reasonable absences because of illness excepted. Employee also
will exercise due diligence and care in the performance of
Employee’s duties to Company under this Agreement. Employee
shall render services to Company and perform duties at such place
or places in as Company shall require in accordance with its best
interests, needs, business and opportunities.
b.
During
Employee’s employment with Company, Employee shall not enter
into the services of or be employed in any capacity or for any
purposes whatsoever, whether directly or indirectly, by any person,
firm, corporation or entity other than Company, and will not,
during said period of time, be engaged in any business, enterprise
or undertaking other than employment by the Company without the
prior written consent of the Company.
c.
Employee
acknowledges and agrees that as Chief Executive Officer he will be
subject to the various policies of Company including, but not
limited to, the Code of Business Conduct and Ethics, the Code of
Business Conduct and Ethics for Senior Financial Officers, and the
Guide for Trading in Securities by Employees, Officers, and
Directors.
d.
Employee
acknowledges and agrees that as Chief Executive Officer he will be
expected to maintain ownership of Company Class A common stock, par
value $0.01 per share (the “Common Stock”), in
accordance with guidelines established by the Board of Directors as
in effect from time to time.
1
e.
As soon as
reasonably practicable after the Effective Date of this Agreement,
Company’s Board of Directors shall increase the size of the
board and appoint Employee to fill the resulting vacancy. Employee
shall serve as a Class III director and shall stand for election at
the fiscal 2021 annual meeting of stockholders, which meeting is
expected to be held in November 2020.
2.
Location:
a.
Employee must
relocate Employee’s permanent residence to Orlando, Florida
or its surrounding communities within 4 months of the Effective
Date. Employee will further be required to move Employee’s
immediate family, household goods, and other belongings to
Employee’s new permanent residence within 4 months of the
Effective Date.
b.
Company will
reimburse Employee for actual and reasonable relocation expenses up
to $50,000.00, which will be paid to Employee within a reasonable
amount of time after receiving Employee’s relocation expense
receipts. The total period for relocation reimbursement concludes
on August 1, 2020, however exceptions may be granted by the
Compensation Committee. Company will only reimburse relocation
expenses that are documented with receipts in accordance with
Company policy, including up to 4 months of temporary housing
expenses and periodic travel back to family prior to their
relocation.
c.
Company will pay to
Employee up to $15,000.00 in addition to the reimbursed relocation
expenses to account for federal income taxes incurred by Employee
as a result of the relocation reimbursement. At the discretion of
the Compensation Committee, this additional amount could increase
based upon taxation circumstances Employee may
present.
d.
If Employee leaves
Company for any reason other than death, disability or discharge by
Company within twelve (12) months of the Effective Date, Employee
is responsible to reimburse Company a prorated portion of all
relocation expenses received from Company, including any additional
sums received pursuant to subsection 2(c) above. Repayment can be
made in installments agreed to by Company.
2
3.
Employment
Period: This Agreement,
and the benefits offered to Employee herein, are contingent upon
Employee’s successful completion of a background check and
drug screen in accordance with applicable law. Employee’s
employment with Company will be “at will,” meaning that
either Employee or Company will be entitled to terminate the
employment at any time, with or without cause. Any contrary
representations which may have been made to Employee are superseded
by this Agreement. The “at will” nature of the
employment may only be changed in an express written agreement
signed by Employee and the Chairman of the Board of Directors of
Company.
4.
Compensation:
a.
Base Salary
–Company shall pay Employee, and Employee agrees to accept
from the Company in full payment for Employee’s services and
promises to Company (specifically including the covenants set forth
in Sections 6 through 11), a $350,000.00 annual salary (“Base
Salary”) payable in equal bi-weekly installments, or
otherwise in accordance with Company’s normal pay practices
as the same may be altered from time to time by
Company.
b.
Variable
Compensation – During Employee’s employment with
Company, Employee shall be entitled to participate in all bonus,
incentive compensation and performance based compensation plans,
including, but not limited to the LightPath Technologies, Inc. 2018
Stock and Incentive Compensation Plan (“the Plan”), and
other similar policies, practices, programs and arrangements of
Company, now in effect or as hereafter amended or established, on a
basis that is commensurate with his position and no less favorable
than those generally applicable or made available to other
executives of Company. Employee’s participation shall be in
accordance with the terms and provisions of such plans and
programs.
i.
Employee will be
eligible for a one-time bonus of up to $100,000.00, based on
qualitative factors that will be determined by the Compensation
Committee of the Board of Directors within 30 days of the Effective
Date (“Special 2020 Bonus”). Any earned Special 2020
Bonus will be paid in October 2020.
3
ii.
As soon as
reasonably practicable after the Effective Date, the Compensation
Committee of the Board of Directors will grant, on a one-time
basis, a restricted stock award (the “Restricted Stock
Award”) consisting of 100,000 shares of Company’s
Common Stock, with 50% of the shares of the Common Stock vesting on
the third anniversary of the Effective Date and the remaining 50%
of the shares of the Common Stock vesting on the fourth anniversary
of the grant date. The Restricted Stock Award shall be in all
respects subject to the Plan and any amendments thereto, and
conditioned upon Employee’s execution of a restricted stock
award agreement evidencing the grant of the Restricted Stock Award
(the “Restricted Stock Agreement”). The terms and
conditions of the vesting of the Restricted Stock Award, including,
if at all, after termination of Employee’s employment or
services, are governed by the Plan and the Restricted Stock
Agreement. As soon as reasonably practicable after the Effective
Date, the Compensation Committee of the Board of Directors also
will grant Employee a stock option (the “Option Award”)
to purchase up to 225,000 shares of the Common Stock at an exercise
price equal to the greater of (i) $1.37 per share or (ii) 115% of
the closing bid price of the Common Stock as reported by The Nasdaq
Capital Market on the grant date, which is expected to occur on the
Effective Date. Fifty-thousand shares of the Common Stock
underlying the stock option will vest on each of the first, second,
and third, anniversaries of the grant date, with the remaining
seventy-five thousand shares of the Common Stock vesting on the
fourth anniversary of the grant date. The stock option will have a
ten-year term, subject to earlier expiration as provided in the
Plan or the Option Agreement, as defined below. The Option Award
shall be in all respects subject to the Plan and any amendments
thereto, and conditioned upon Employee’s execution of a stock
option agreement evidencing the grant of the Option Award (the
“Option Agreement”). The terms and conditions upon
which the Option Award may be exercised, including, if at all,
after termination of Employee’s employment or services, are
governed by the Plan and the Option Agreement.
c.
Withholding Taxes
– All forms of compensation paid or payable to Employee
whether set forth in this Agreement or otherwise are subject to
reduction to reflect applicable withholding and payroll taxes in
accordance with state and federal law.
d.
Reimbursement for
Business Expenses – Employee shall receive reasonable and
customary reimbursement for business expenses incurred on behalf of
Company; provided, however, that Employee shall provide appropriate
receipts and documentation for any such expenses.
e.
Paid Time Off
– Employee shall be entitled to three-weeks, or 120 hours, of
vacation plus 40 hours of sick time annually. All vacation and sick
leave are subject to the terms and conditions established by
Company and applicable law.
f.
Benefits –
Employee will be eligible for Company’s benefit programs in
accordance with the benefit plan documents. Current benefits
include, but are not limited to, health, dental, vision, life, and
long-term disability insurances, FSA (flexible spending account),
HSA (health spending account), and a 401K plan.
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g.
Recovery of
Compensation. - Employee acknowledges and agrees that all or any
portion of an incentive award under the above described bonus and
incentive compensation plans or any future arrangement established
by Company to provide incentive or bonus compensation, whether
payable in cash, Company Common Stock, or other property
(“Award”), is subject to an obligation of repayment by
Employee to Company if the amount of the Award was calculated based
upon the achievement of certain financial results (as reflected in
the financial statements of Company or otherwise) or other
performance metrics that, in either case, were subsequently found
to be materially inaccurate. The amount that shall be repaid by
Employee to Company shall be based on the excess amount paid or
awarded to the Employee under the Award as compared to the amount
that would have been paid or awarded had the material inaccuracy
not occurred. If the Compensation Committee of the Board of
Directors determines that Employee engaged in misconduct,
malfeasance, or gross negligence in the performance of his duties
that either caused or significantly contributed to the material
inaccuracy in financial statements or other performance metrics,
there shall be no time limit on this right of recovery, which shall
apply to all future Awards as well as to any and all pre-existing
Awards that have not yet been determined and paid as of the date of
this Agreement. In all other circumstances, this right of recovery
shall apply to all future Awards as well as to any and all
pre-existing Awards that have not yet been determined and paid as
of the date of this Agreement for a period not exceeding one year
after the date of payment of each such Award. In addition, Employee
hereby agrees that, if he does not promptly repay the amount
recoverable hereunder within thirty (30) days of a demand
therefore, such amount may be withheld from compensation of any
type not yet due and payable to Employee, including, but not
limited to, the cancellation of future Awards, as determined by the
Compensation Committee in its sole discretion. In addition, the
Compensation Committee is granted the discretionary authority to
interpret and enforce this provision as it determines to be in the
best interest of Company and equitable to the parties.
Notwithstanding anything herein, this provision shall not be
Company’s exclusive remedy with respect to such matters. In
addition, the parties agree that Company may unilaterally amend
this provision at any time to comply with applicable law or
securities exchange listing rules, as the same may be in effect
from time to time during Employee’s employment with Company
and for any relevant period thereafter.
5.
Termination:
a.
Employment by the
Company is “at-will,” meaning Company may terminate
Employee’s employment with Company at any time and for any
reason not prohibited by law. Similarly, Employee may voluntarily
resign from employment with Company at any time and for any reason.
All of Employee’s rights and all of Company’s
obligations hereunder shall terminate effective on the last date of
Employee’s employment. Additionally, any position Employee
holds as an officer or director of Company or any of its
affiliates, and/or any position as a member of any committees of
the Board of Directors of Company or any of its affiliates shall be
deemed to have ended by resignation effective as of
Employee’s date of termination from employment with Company.
Notwithstanding the foregoing, Employee’s obligations and
Company’s rights under Sections 6 through 11 of this
Agreement shall survive the termination of this Agreement and
Employee shall be entitled to receive the unpaid portion of any
wages earned up to the date of such termination, including the Base
Salary, and all benefits payable to Employee as a result of such
termination under the terms of Company’s employee benefit
plans.
b.
Upon termination
from employment with Company, Employee may be eligible for a
severance payment in accordance with the terms and conditions of
the Executive Compensation Policy dated August 26, 2019
(“Severance Policy”), and any amendments thereto. If
Employee is terminated without cause by Company, as that term is
defined in the Severance Policy, Employee is eligible for the
greater of either the severance amount due Employee as set forth in
the Severance Policy or a severance payment of up to six months of
Employee’s Base Salary as determined by the Compensation
Committee of the Board of Directors in their sole discretion. In
order to receive any severance payment offered by the Compensation
Committee beyond what is provided in the Severance Policy, Employee
must execute a full general release in favor of
Company.
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c.
The effect of
termination of employment on Employee’s vested or unvested
equity interest shall be governed by the terms of the Plan and the
award agreements issued thereunder.
6.
Proprietary
Information:
a.
Except as may be
required in the course of employment by Company, Employee agrees
that any and all Proprietary Information, as hereinafter defined,
which Employee 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 Company, whether during
working hours or any other time, which relate in any way to the
business or the type of business now or hereafter engaged in or
contemplated by Company during the period of Employee’s
employment or which result from or may be suggested by any work
Employee does for Company or at Company’s request, shall be
the property of Company. As used herein, “Proprietary
Information” shall mean any and all proprietary property
including but not limited to:
●
Company strategies,
product development plans, marketing plans, product developments,
service developments, processes, practices, customer information,
vendor information, sourcing data and strategies; and
●
Company proprietary
systems and software.
b.
Employee shall
promptly disclose and assign such Proprietary Information to
Company’s representatives and do all such acts, and execute
and deliver all such documents, as may be necessary to vest in
Company the title to all such Proprietary Information and enable
Company 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 Company 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
Company” shall properly cover any reasonable development or
extension of Company’s field of operation. These obligations
shall continue beyond the termination or expiration of
Employee’s employment with respect to inventions, discoveries
and developments conceived or made by Employee during the period of
employment and shall be binding on Employee’s assigns,
executors, heirs, administrators and other legal representatives.
Employee agrees that all correspondence, drawings, reports, ideas,
blueprints, manuals, letters, notes, analyses, notebooks, reports,
charts, programs, proposals or any other documents concerning
Company’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 Company and upon
termination or expiration of employment for any reason, Employee
shall promptly return to Company any such documents in his
possession, custody or control.
c.
Employee agrees
that Employee will not at any time during or after the termination
or expiration of employment, except as authorized or directed in
writing by Company, use for Employee’s own benefit or the
benefit of a third party, copy, reveal, divulge or make known in
any manner to any person or firm the Propriety Information of
Company or its affiliates.
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7.
Trade
Secrets:
a.
Employee agrees
that Employee will not at any time during or after the termination
or expiration of employment, except as authorized or directed in
writing by Company, use for Employee’s own benefit or the
benefit of a third party, copy, reveal, divulge or make known in
any manner to any person or firm the Trade Secrets of Company or
its affiliates.
b.
For purposes of
this Agreement, “Trade Secrets” shall mean the whole or
any portion of any information, formula, pattern, compilation,
program, device, method, technique, or process, that: (i) derives
independent economic value, actual or potential, from not being
generally known to the public or to other persons who can obtain
economic value from its disclosure or use; and (ii) is the subject
of efforts that are reasonable under the circumstances to maintain
its secrecy. Trade Secrets include any scientific, technical or
commercial information, including any design, procedure, list of
suppliers, list of customers, business code, sales or installation
technique, or improvement thereof.
c.
Employee
understands that if, either during employment or thereafter,
Employee discloses to others, uses for Employee’s own benefit
or for the benefit of any person or entity other than Company,
copies, or makes notes of any Trade Secrets, such conduct will
constitute a breach of the confidence and trust bestowed upon
Employee by the Company and will be a breach of this
Agreement.
d.
Pursuant to the
federal Defend Trade Secrets Act of 2016, Employee shall not be
held criminally or civilly liable under any federal or state trade
secret law for the disclosure of a trade secret that: (i) is made
in confidence to a federal, state, or local government official,
either directly or indirectly, or to an attorney solely for the
purpose of reporting or investigating a suspected violation of law;
or (ii) is made in a complaint or other document filed in a lawsuit
or other proceeding, if such filing is made under seal. Moreover,
if Employee files a lawsuit for retaliation by Company for
reporting a suspected violation of law, Employee may disclose a
trade secret to Employee’s attorney and use the trade secret
information in the court proceeding; provided, however that
Employee: (i) shall file any document containing the trade secret
under seal; and (ii) shall not disclose the trade secret, except
pursuant to a court order.
8.
Restricted
Covenants:
a.
For a period of one
year after Employee’s last day of employment with Company,
Employee agrees that he shall not directly or indirectly solicit or
attempt to solicit from Company or its related entities, or
knowingly employ, retain or use the services of any employee or
independent contractor who was employed or contracted by Company or
its related entities during Employee’s employment with
Company.
7
b.
For a period of one
year after Employee’s last day of employment with Company,
Employee agrees that he will not, on behalf of himself or any
person or entity that engages in a Competing Business (as defined
below) or is attempting to engage in a Competing Business, directly
or indirectly solicit, deal with, or provide service to any person,
firm or corporation who or which was a customer of Company at any
time during the period that Employee was employed by
Company.
c.
For a period of one
year after Employee’s last day of employment with Company,
Employee agrees that he will not directly or indirectly have any
involvement, or ownership interest in, or participate in the
financing, operation, management or control of, any person, firm,
corporation or business that engages in a Competing Business. It is
agreed that ownership of no more than one percent (1%) of the
outstanding voting stock of a publicly traded corporation shall not
constitute a violation of this provision.
d.
For the purposes of
these restrictions, a “Competing Business” is a person,
firm, corporation or business that is providing or developing
competing products and/or services in the optics or photonic
solutions industries or another line of products or services that
Company develops or provides during Employee’s employment
with Company.
9.
Return
of Property and Records: On termination of
employment, Employee shall deliver to the Director of Corporate
Human Resources any property of Company in Employee’s
possession or under Employee’s control, including without
limitation, all records, notes, data, memoranda, models, credit
cards, office keys, security access cards, identification cards and
equipment of any nature.
10.
Non-Disparagement: Employee agrees not
to engage in any conduct which is detrimental to the interests of
Company, including, but not limited to, making any statements
disparaging of Company, its products, services, employees, officers
or Board of Directors, to any person or entity, including, but not
limited to, any media.
11.
Cooperation: Employee agrees that
following his termination from employment with Company for any
reason, at Company’s request, he shall reasonably assist and
advise Company in any investigation which may be performed by
Company or any governmental agency and any litigation in which
Company may become involved. Such assistance shall include Employee
making himself reasonably available for interviews by Company or
its counsel, deposition and/or court appearances at Company’s
request. Company shall attempt to schedule such assistance at
mutually convenient times and places, taking into account any
employment constraints that Employee may have. Company shall
reimburse Employee for reasonable expenses, such as telephone,
travel, lodging and meal expenses, incurred by Employee at
Company’s request, consistent with Company’s generally
applicable policies for employee expenses as well as pay Employee a
per-diem amount equal to $1,750.00 for each full business day
Employee is required to provide such cooperation, which per-diem
amount shall be paid to Employee within ten (10) business days
following the last day of the month in which such per-diem amounts
are earned. To the maximum extent permitted by law, Employee agrees
that he will notify the Chairman of the LightPath Board of
Directors if he is contacted by any governmental agency, or by any
person contemplating or maintaining any claim or legal action
against Company, or by any agent or attorney of such person, within
three business days of such contact.
8
12.
Waiver
or Modification of Agreement: No waiver or modification of this
Agreement or of any covenant, condition, or limitation herein
contained shall be valid unless in writing and duly executed by the
party to be charged therewith. Furthermore, no evidence of any
modification or waiver shall be offered or received as evidence in
any proceeding, arbitration or litigation between the parties
arising out of or affecting this Agreement or the rights or
obligations of any party hereunder, unless such waiver or
modification is in writing, duly executed as aforesaid. The
provisions of this Section may not be waived except as herein set
forth.
13.
Choice
of Law: This Agreement
and the performance hereunder and all suits, claims, and special
proceedings hereunder shall be construed in accordance with the
laws of the State of Florida. In any action, special proceeding or
other proceeding that may be brought arising out of, in connection
with, or by reason of this Agreement, the laws of the State of
Florida shall be applicable and shall govern to the exclusion of
the law of any other forum, without regard to the jurisdiction in
which the action or special proceeding may be
instituted.
14.
Binding
Effect of Agreement: This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
heirs, successors, assigns and legal representatives.
15.
Invalid
Provision; Severability: The invalidity or
unenforceability of a particular provision of this Agreement shall
not affect the other provisions hereto, and this Agreement shall be
construed in all respects as if such invalid or unenforceable
provisions were omitted, with the exception of Section 8, which may
be revised to the extent it provides Company the maximum
restriction permitted by law or omitted if no such revision is
permitted by law. If any portion of this Agreement is void or
deemed unenforceable for any reason, the unenforceable portion will
be deemed severed from the remaining portions of this Agreement,
which will otherwise remain in full force.
16.
Costs
of Enforcement: In the event either party initiates
action to enforce his, her or its rights hereunder, the
substantially prevailing party shall recover from the substantially
non-prevailing party its reasonable expenses, court costs,
including taxed and untaxed costs, and reasonable attorneys’
fees, whether suit be brought or not (jointly referred as to
“Expenses”). Expenses incurred in enforcing this
Section shall be covered by this Section. For this purpose, the
court is requested by the parties to award actual costs and
attorneys’ fees incurred by the substantially prevailing
party, it being the intention of the parties that the substantially
prevailing party be completely reimbursed for all such costs and
fees. The parties request that inquiry by the court as to the fees
and costs shall be limited to a review of whether the fees charged
and hourly rates for such fees are consistent with the fees and
hourly rates routinely charged by the attorneys for the
substantially prevailing party.
9
17.
Assignment:
This Agreement shall be construed as a contract for personal
services by Employee to Company and shall not be assignable by
Employee. This Agreement may be assigned by Company.
18.
Waiver:
No failure of any party to exercise any power given such party
hereunder or to insist upon strict compliance by any party with its
obligations hereunder, and no custom or practice of the parties in
variance with the terms hereof shall constitute a waiver of the
parties’ rights to demand exact compliance with the terms
hereof.
19.
Strict
Construction: This Agreement
was the joint, negotiated product of the parties. Therefore,
neither party shall advance a position that any provision hereof
should be more strictly construed against the other party on the
basis that such other party prepared such provision.
20.
Cumulative
Rights: Unless otherwise provided herein, all
rights, powers and privileges conferred upon the parties by law,
this Agreement or otherwise shall be cumulative.
21.
Counterparts:
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which shall
constitute the same instrument.
22.
Singular/Plural
Feminine/Masculine, Successors or Assigns: All references as used herein shall
include male and female, singular and plural, and successors or
assigns in the use of a corporation, partnership, individual or
entity in any place or places herein in which the context may
require or permit such substitution, substitutions or
designations.
23.
Complete
Agreement: This written Agreement contains the
sole and entire agreement between the parties as to the matters
contained herein and supersedes any and all other agreements
between them and any other document executed by Employee as
contemplated thereby. The parties acknowledge and agree that
neither of them has made any representation with respect to such
matters of this Agreement or any representations except as are
specifically set forth herein, and each party acknowledges that he
or it has relied on his or its own judgment in entering into this
Agreement. The parties further acknowledge that statements or
representations that may have been heretofore made by either of
them to the other are void and of no effect and that neither of
them has relied thereon in connection with his or its dealing with
the other.
[SIGNATURES
ON FOLLOWING PAGE]
10
IN
WITNESS WHEREOF, the parties have executed this Agreement effective
as of February 24, 2020.
|
“COMPANY”
|
|
LightPath
Technologies, Inc.
|
|
By: /s/ Robert
Ripp
|
|
Print
Name: Robert Ripp
|
|
Title:
Chairman of the Board of Directors
|
|
Date:
February 24, 2020
|
|
“EMPLOYEE”
|
|
/s/ Sam
Rubin
|
|
EMPLOYEE
NAME: Sam Rubin
|
|
Date:
February 14, 2020
|
11
Exhibit 99.1
For Immediate Release
LightPath Technologies' Board of Directors Elects Mr. Sam Rubin as
President and CEO
ORLANDO,
FL – February 26, 2020 – LightPath
Technologies, Inc. (NASDAQ: LPTH) (“LightPath,”
the “Company,” or “we”), a leading
vertically integrated global
manufacturer, distributor and
integrator of
proprietary optical
and infrared components and high-level
assemblies, today announced that Sam Rubin will join the
Company as President and Chief Executive Officer
(“CEO”), effective March 9, 2020. He has also been
appointed as a member Board of Directors (the “Board”)
and will stand for election at the next annual stockholder meeting
to be held in November 2020. Mr. Rubin succeeds LightPath’s
current President and CEO, J. James Gaynor. Mr. Rubin was formerly
General Manager at Thorlabs Inc.
(“Thorlabs”).
In Mr.
Rubin’s prior senior executive role at Thorlabs, he was
responsible for Thorlabs’ Imaging Systems Division, a
standalone organization with its own sales and marketing, as well
as global responsibility for all of Thorlabs’ Life Science
activities. Among the positions he held at Thorlabs, Mr. Rubin
founded and grew Thorlabs’s fast growing operation in China,
and spearheaded Thorlabs’ entry and significant growth in the
Life Sciences market. As a member of the senior executive team, Mr.
Rubin led new strategic initiatives for Thorlabs, including new
product lines, acquisitions and growth into new markets. Prior to
joining Thorlabs, Mr. Rubin co-founded XLight Photonics, an optical
communication startup, which was later sold to a telecommunications
private equity firm. Mr. Rubin holds a Bachelor of Science degree
in Electronic Engineering from Ben Gurion University, a Master of
Business Administration degree from New York University, Stern
School of Business, and is a graduate of the Executive Education,
Program for Leadership Development at Harvard Business
School.
Mr. Sam
Rubin commented, “I am delighted to be joining LightPath as
the next President and CEO at an exciting time for the business. It
is a company with a long history of innovation and delivery of
exceptional products to its customers. I have known LightPath for
over 25 years, as a customer, vendor, and a business partner, and I
am very excited to be now part of the Company. I look forward to
taking my next step into the world of public companies and to work
closely with the Board, the leadership team, and all employees over
the coming years to continue to transform and grow
LightPath.”
Mr.
Robert Ripp, Chairman of the Board, continued “The Board
thanks Mr. Jim Gaynor, current President and CEO, for his 13 years
of service. During his leadership, the Company was transformed from
a small custom optical lens design company into a leading
manufacturer of molded visible lens, and infrared lens, and
assemblies. With his leadership, LightPath established a major
presence in the Chinese markets, developed new glass materials,
acquired infrared lens capabilities, and innovated several
manufacturing technologies that made LightPath a top tier optical
design and low-cost manufacturing company. Mr. Gaynor will serve as
consultant to the Board through June 2020 to provide assistance to
Sam, as needed, during this transition period.”
Mr.
Ripp concluded, “The Board looks forward to working with Sam.
He has demonstrated leadership in managing complex organizations
and improving their performance. He has successfully increased
revenue and profit growth in multiple assignments. Sam is also very
capable of providing a strategy that we believe will better
position LightPath for the future, and that over the long run, will
deliver enhanced value for our customers, employees, and
stockholders.”
About LightPath Technologies
LightPath
Technologies, Inc. (NASDAQ: LPTH) is a leading global, vertically
integrated provider of optics, photonics and infrared solutions for
the industrial, commercial, defense, telecommunications, and
medical industries. LightPath designs, manufactures, and
distributes proprietary optical and infrared components including
molded glass aspheric lenses and assemblies, infrared lenses and
thermal imaging assemblies, fused fiber collimators, and
proprietary Black
DiamondTM (“BD6”)
chalcogenide-based glass lenses. LightPath also offers custom
optical assemblies, including full engineering design support. The
Company is headquartered in Orlando, Florida, with manufacturing
and sales offices in Latvia and China.
LightPath’s
wholly-owned subsidiary, ISP Optics
Corporation, manufactures
a full range of infrared products from high performance MWIR and
LWIR lenses and lens assemblies. ISP’s infrared lens assembly
product line includes athermal lens systems used in cooled and
un-cooled thermal imaging cameras. Manufacturing is performed
in-house to provide precision optical components including
spherical, aspherical and diffractive coated infrared lenses.
ISP’s optics processes allow it to manufacture its products
from all important types of infrared materials and crystals.
Manufacturing processes include CNC grinding and CNC polishing,
diamond turning, continuous and conventional polishing, optical
contacting and advanced coating technologies.
For
more information on LightPath and its businesses, please visit
www.lightpath.com.
Forward-Looking Statements
This news release includes statements that constitute
forward-looking statements made pursuant to the safe harbor
provisions of the Private Securities Litigation Reform Act of 1995,
including statements regarding our ability to expand our presence
in certain markets, future sales growth, continued improvements in
our financial results,and implementation of new distribution
channels. This information may involve risks and uncertainties that
could cause actual results to differ materially from such
forward-looking statements. Factors that could cause or contribute
to such differences include, but are not limited to, factors
detailed by LightPath Technologies, Inc. in its public filings with
the Securities and Exchange Commission, including its most recent
Annual Report on Form 10-K. Except as required under the federal
securities laws and the rules and regulations of the Securities and
Exchange Commission, we do not have any intention or obligation to
update publicly any forward-looking statements, whether as a result
of new information, future events or otherwise.
Contacts:
Jordan Darrow
Darrow Associates
Tel:
512-551-9296
jdarrow@darrowir.com