LWLG 8-K
Lightwave Logic, Inc. (LWLG)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Appointment of New Chief Executive Officer
As part of its ongoing focus strengthening the management team, the board of directors (the “Board”) of Lightwave Logic, Inc. (the “Company”) appointed Yves LeMaitre, age 60, as Chief Executive Officer of the Company, effective December 11, 2024. Mr. LeMaitre has served as a member of the Board since August 1, 2024 and will continue to do so. Mr. Le Maitre, 60, brings over 30 years of leadership experience in sales, corporate strategy, and P&L management to the Board, having worked with a wide range of technologies, including in the laser, optical communications, and consumer electronics industries. He currently serves as a strategic advisor to various market-leading companies in the photonics and optical communications markets. Previously, he served Astrobeam.space as Chief Executive Officer from October 2023 to March 2024. Prior to that, he served Luna Innovations Incorporated (NASDAQ:LUNA) as President, RIO Lasers and SVP of North American Operations from December 2019 to December 2021, where he oversaw all U.S. business and the integration of acquisitions into current operations. Prior to that, Mr. Le Maitre served as Chief Strategy Officer of Lumentum Holdings Inc. (NASDAQ:LITE) and Oclaro, Inc. (“Oclaro”) (prior to its merger with Lumentum Holdings Inc.) in 2018 and 2019, where he was responsible for strategic planning, corporate development and marketing of the company’s core business sectors, which included optical communications, industrial lasers, and 3D sensing. From October 2013 to February 2018, he served as Oclaro’s President of Optical Connectivity Business. Prior to this, Mr. Le Maitre was Oclaro's Chief Commercial Officer from July 2011 to September 2013. He previously served as Executive Vice President, Strategy and Corporate Development, from February 2011 to July 2011, and was Executive Vice President and General Manager of Oclaro's Advanced Photonic Solutions division from April 2009 to January 2011. Previously, Mr. Le Maitre served as Vice President of Telecommunications Sales and Corporate Marketing for Oclaro from February 2008 to April 2009. Mr. Le Maitre earned a master's degree in mathematics and computer science from Nantes University in France. He also holds an engineering degree from Ecole Nationale Superieure des Telecommunications (ENST) in Paris.
In connection with his appointment, the Company and Mr. LeMaitre entered into an employment agreement, which provides that Mr. LeMaitre’s base salary will be $420,000 per year and he will be eligible for an annual cash bonus of up to $150,000, based on the achievement of the Company’s objectives, as established by the Board or the Compensation Committee thereof. In addition, Mr. LeMaitre will receive a sign-on equity award in the form of 50,000 shares of restricted stock and 150,000 stock options that will both vest on June 10, 2025. Mr. LeMaitre is eligible to participate in the benefit plans and programs generally available to the Company’s employees. Mr. LeMaitre will also be entitled to reimbursement of all reasonable business expenses incurred or paid by him in the performance of his duties and responsibilities for the Company.
Mr. LeMaitre does not have any family relationships with any of the Company’s other officers or directors 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.
Appointment of New President
Additionally, the Board appointed Thomas Zelibor, age 70, as President of the Company, effective December 11, 2024. Mr. Zelibor served as the Chairman of the Board of the Company from October 2011 until August 2022, the Company’s Chief Executive Officer from May 2012 to April 2017, and served as a director of our Company from July 2008 until August 2022. He also served as the CEO of Flatirons Solutions and CEO of the not-for-profit United States Space Foundation from 2017 to June 2023. As the U.S. Navy's chief information officer, Mr. Zelibor oversaw a multibillion-dollar annual budget, delivering increased growth and efficiency while directing IT policy, Navy space, processes, and cyber security strategy. Mr. Zelibor served in the United States Navy from 1976 to 2006 with critical senior roles from 1998 to 2005, including Commander of Naval Space Command, Commander of Carrier Group Three, and in the U.S. Strategic Command as Director of Global Operations. Following that, he was VP of Strategic Operations for Science Applications International Corporation (SAIC) and then Dean of the College of Operational and Strategic Leadership at the Naval War College. Mr. Zelibor received his bachelor’s degree in Oceanography from the United States Naval Academy in 1976. He retired as a Navy Rear Admiral and Naval Aviator with over 35 years of significant leadership experience.
In connection with his appointment, the Company and Mr. Zelibor entered into an employment agreement, which provides that Mr. Zelibor’s base salary will be $360,000 per year and he will be eligible for an annual cash bonus of up to $75,000, based on the achievement of the Company’s objectives, as established by the Board or the Compensation Committee thereof. In addition, Mr. Zelibor will receive a sign-on equity award in the form of 35,000 shares of restricted stock and 80,000 stock options that will both vest on June 10, 2025. Mr. Zelibor is eligible to participate in the benefit plans and programs generally available to the Company’s employees. Mr. Zelibor will also be entitled to reimbursement of all reasonable business expenses incurred or paid by him in the performance of his duties and responsibilities for the Company.
Mr. Zelibor does not have any family relationships with any of the Company’s other officers or directors 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.
The summary of the employment agreements set forth above does not purport to be a complete statement of the terms of such documents. The summary is qualified in its entirety by reference to the full text of the employment agreement, which are filed as Exhibits 10.1 and 10.2 to this Current Report on Form 8-K.
Appointment of Chairman of the Board
Effective December 11, 2024, the Board appointed Ronald Bucchi, the Company’s current Lead Independent Director, as Chairman of the Board.
Appointment of Chief Financial Officer
Effective December 11, 2024, the Board appointed James S Marcelli, the Company’s current Chief Operating Officer and principal financial officer, as Chief Financial Officer and Chief Operating Officer.
Executive Departures
On December 10, 2024, Dr. Michael Lebby resigned from his positions as Chief Executive Officer and Chairman of the Board of Directors of the Company.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| 10.1 | Employment Agreement between Yves LeMaitre and Lightwave Logic, Inc., dated December 10, 2024 | |
| 10.2 | Employment Agreement between Thomas Zelibor and Lightwave Logic, Inc., dated December 10, 2024 | |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| LIGHTWAVE LOGIC, INC. | ||
| By: | /s/ James S. Marcelli | |
| Name: | James S. Marcelli | |
| Title: | President | |
Dated: December 13, 2024
Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “Agreement”) made as of December 10, 2024, by and between Lightwave Logic, Inc., a Nevada corporation (the “Company”), whose principal place of business is at 369 Inverness Parkway, Suite 350, Englewood, Colorado 80112; and Yves LeMaitre (“Executive”), who resides at [●].
WHEREAS, the Company wishes to procure the services of Executive under the terms and conditions set forth and Executive wishes to be employed on these terms and conditions.
WHEREAS, the parties to this Agreement wish to enter into a written expression of their relationship as employer and employee.
THEREFORE, in consideration of the agreements contained in this Agreement, the parties, intending to be legally bound, agree as follows:
ARTICLE 1
Employment
1.1. Employment. The Company agrees to employ Executive, and Executive accepts employment with the Company, on and subject to the terms and conditions set forth in this Agreement.
1.2. Term. Subject to the provisions for termination as provided in Article 8 of this Agreement, the term of this Agreement shall begin on December 11, 2024 and shall continue for twelve (12) months thereafter (the “Employment Term”). 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 Executive to act as its Chief Executive Officer. Executive shall be responsible for performing such duties for the Company as are customarily associated with such position for a similar situated company. Executive agrees that he will serve the Company faithfully and to the best of his ability during the Employment Term, under the direction of the Board of Directors of the Company. The Company and Executive may jointly from time to time to change the nature of Executive’s duties and job title.
2.2. Time Devoted to Work. Executive agrees that he will devote all of the necessary business time, attention, and energies, as well as Executive’s best talents and abilities to the business of the Company in accordance with the Company’s instructions and directions. Executive may engage in other business activities unrelated to the Company during the Employment Term so long as such other business activities do not interfere with the terms and conditions of this Agreement.
ARTICLE 3
Place of Employment
Executive shall perform his duties under this Agreement primarily at 369 Inverness Parkway, Suite 350, Englewood, Colorado 80112 or at any such other location as may be approved by the Board of Directors.
ARTICLE 4
Compensation of Executive
4.1. Base Compensation. For all services rendered by Executive under this Agreement, the Company agrees to pay Executive the rate of $420,000 per year ($35,000 per month), which shall be payable to Executive not less frequently than monthly, or as is consistent with the Company’s practice for its other employees.
4.2. Other Compensation. Executive shall receive other compensation as more fully described on Appendix A, 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 Executive for all reasonable business expenses incurred by Executive in performing Executive’s duties and obligations under this Agreement, but only if Executive properly accounts for expenses in accordance with the Company’s policies.
4.2 Bonus Compensation. Executive shall be eligible to receive bonus compensation to be determined by the Board of Directors from time to time in their sole discretion.
ARTICLE 5
Personal Time Off (PTO) and Other Paid Absences
5.1. Personal Time Off (PTO). Executive shall be entitled to the PTO as authorized in the Lightwave Logic Employee Handbook.
5.2. Holidays. Executive shall be entitled to the paid holidays as authorized in the Lightwave Logic Employee Handbook.
ARTICLE 6
Fringe Benefits
Executive 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. No amounts paid to Executive from an employee benefit plan shall count as compensation due Executive as base salary or additional compensation. Nothing in this Agreement shall prohibit the Company from modifying or terminating any of its employee benefit plans in a manner that does not discriminate between Executive and other Company employees.
ARTICLE 7
Maintenance of Liability Insurance
So long as Executive shall serve as an executive officer of the Company pursuant to this 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, Executive shall be named as an insured in such manner as to provide Executive the same rights and benefits as are accorded to the most favorably insured of the Company’s officers or directors.
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ARTICLE 8
Termination of Employment
8.1. Termination of Employment. Executive’s employment hereunder shall automatically terminate upon (i) his death (ii) the expiration of the Employment Term; or (iii) Executive voluntarily leaving the employ of the Company with 30 days prior written notice.
8.2. Termination For Executive’s Failure to Meet Performance Standard. Executive’s employment with the Company shall terminate, at the Company’s discretion, upon written notice to Executive if the Company terminates his employment hereunder for “cause”. For purposes hereof, “cause” shall include (i) Executive’s willful malfeasance, misfeasance, nonfeasance or gross negligence, (ii) any willful misrepresentation or concealment of a material fact made by Executive in connection with this Agreement; (iii) the willful breach of any covenant made by Executive hereunder; or (iv) the failure of Executive to meet the performance standards more fully described in Appendix A attached hereto and made a part hereof.
Notwithstanding the above, if Executive is terminated by the Company without cause during the Employment Term, the Company shall be obligated to pay to Executive the compensation set forth in Article 4 hereof for the remainder of the Employment Term.
ARTICLE 9
Confidential Information
9.1. Confidential Information. Executive understands and acknowledges that during the Employment Term, he will have access to and learn about Confidential Information, as defined below.
9.2 Confidential Information Defined. For purposes of this Agreement, “Confidential Information” includes, but is not limited to, all information not generally known to the public, in spoken, printed, electronic or any other form or medium, relating directly or indirectly to: business processes, practices, methods, policies, plans, publications, documents, research, operations, services, strategies, techniques, agreements, contracts, terms of agreements, transactions, potential transactions, negotiations, pending negotiations, know-how, trade secrets, computer programs, computer software, applications, operating systems, software design, web design, work-in-process, databases, manuals, records, articles, systems, material, sources of material, supplier information, vendor information, financial information, results, accounting information, accounting records, legal information, marketing information, advertising information, pricing information, credit information, design information, payroll information, staffing information, personnel information, employee lists, supplier lists, vendor lists, developments, reports, internal controls, security procedures, graphics, drawings, sketches, market studies, sales information, revenue, costs, formulae, notes, communications, algorithms, product plans, designs, styles, models, ideas, audiovisual programs, inventions, unpublished patent applications, original works of authorship, discoveries, experimental processes, experimental results, specifications, customer information, customer lists, client information, client lists, manufacturing information, factory lists, distributor lists, and buyer lists of the Company or its businesses or any existing or prospective customer, supplier, investor or other associated third party, or of any other person or entity that has entrusted information to the Company in confidence.
Executive understands that the above list is not exhaustive, and that Confidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used.
Executive understands and agrees that Confidential Information includes information developed by him in the course of his employment by the Company as if the Company furnished the same Confidential Information to Executive in the first instance. Confidential Information shall not include information that is generally available to and known by the public at the time of disclosure to Executive; provided that, such disclosure is through no direct or indirect fault of Executive or person(s) acting on Executive’s behalf.
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9.3 Company Creation and Use of Confidential Information. Executive understands and acknowledges that the Company has invested, and continues to invest, substantial time, money, and specialized knowledge into developing its resources, creating a customer base, generating customer and potential customer lists, training its employees, and improving its offerings in the field of advanced organic electro-optic polymer systems and P2ICTM technology. Executive understands and acknowledges that as a result of these efforts, the Company has created and continues to use and create Confidential Information. This Confidential Information provides the Company with a competitive advantage over others in the marketplace.
9.4 Disclosure and Use Restrictions. Executive agrees and covenants: (i) to treat all Confidential Information as strictly confidential; (ii) not to directly or indirectly disclose, publish, communicate, or make available Confidential Information, or allow it to be disclosed, published, communicated, or made available, in whole or part, to any entity or person whatsoever (including other employees of the Company) not having a need to know and authority to know and use the Confidential Information in connection with the business of the Company and, in any event, not to anyone outside of the direct employ of the Company except as required in the performance of Executive’s authorized employment duties to the Company or with the prior consent of the Chair of the Board of Directors acting on behalf of the Company in each instance (and then, such disclosure shall be made only within the limits and to the extent of such duties or consent); and (iii) not to access or use any Confidential Information, and not to copy any documents, records, files, media, or other resources containing any Confidential Information, or remove any such documents, records, files, media, or other resources from the premises or control of the Company, except as required in the performance of Executive’s authorized employment duties to the Company or with the prior consent of the Chair of the Board of Directors acting on behalf of the Company in each instance (and then, such disclosure shall be made only within the limits and to the extent of such duties or consent). Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. Executive shall promptly provide written notice of any such order to the Chair of the Board of Directors.
9.5 Notice of Immunity Under the Economic Espionage Act of 1996, as amended by the Defend Trade Secrets Act of 2016 (“DTSA”). Notwithstanding any other provision of this Agreement: (i) Executive will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that: (A) is made (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (2) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed under seal in a lawsuit or other proceeding; and (ii) If Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Executive may disclose the Company’s trade secrets to Executive’s attorney and use the trade secret information in the court proceeding if Executive: (A) files any document containing trade secrets under seal; and (B) does not disclose trade secrets, except pursuant to court order.
9.6 Executive understands and acknowledges that his obligations under this Agreement with regard to any particular Confidential Information shall commence immediately upon Executive first having access to such Confidential Information (whether before or after he begins employment by the Company) and shall continue during and after his employment by the Company until such time as such Confidential Information has become public knowledge other than as a result of Executive’s breach of this Agreement or breach by those acting in concert with Executive or on Executive’s behalf.
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ARTICLE 10
Restrictive Covenants
10.1 Acknowledgement. Executive understands that the nature of Executive’s position gives him access to and knowledge of Confidential Information and places him in a position of trust and confidence with the Company. Executive understands and acknowledges that the intellectual services he provides to the Company are unique, special, or extraordinary because of his leadership skills and experience in the photonics industry that is necessary to move the Company into its next level of performance. Executive further understands and acknowledges that the Company’s ability to reserve these for the exclusive knowledge and use of the Company is of great competitive importance and commercial value to the Company, and that improper use or disclosure by Executive is likely to result in unfair or unlawful competitive activity.
10.2 This Article 10 does not, in any way, restrict or impede Executive from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation, or order. Executive shall promptly provide written notice of any such order to the Chair of the Board of Directors.
10.3 Non-Solicitation of Employees. Executive understands and acknowledges that the Company has a legitimate business interest in retaining its employees, in particular its scientists and engineers, who are crucial to the growth and development of the Company. Executive agrees and covenants not to directly or indirectly solicit, hire, recruit, attempt to hire or recruit, or induce the termination of employment of any employee of the Company for a period of one (1) year, to run consecutively, beginning on the last day of Executive’s employment with the Company.
10.4 Non-Solicitation of Customers. Executive understands and acknowledges that because of Executive’s experience with and relationship to the Company, he will have access to and learn about much or all of the Company’s customer information. “Customer Information” includes, but is not limited to, names, phone numbers, addresses, e-mail addresses, order history, order preferences, chain of command, pricing information, and other information identifying facts and circumstances specific to the customer and relevant to sales or services. Executive understands and acknowledges that loss of this customer relationship and/or will cause significant and irreparable harm. Executive agrees and covenants, during for a period of one (1) year, to run consecutively, beginning on the last day of Executive’s employment with the Company, not to directly or indirectly solicit, contact (including but not limited to e-mail, regular mail, express mail, telephone, fax, and instant message), attempt to contact, or meet with the Company’s current, former or prospective customers for purposes of offering or accepting goods or services similar to or competitive with those offered by the Company.
ARTICLE 11
Construction
Executive acknowledges and agrees that the covenants and agreements contained in Articles 9 and 10 of this Agreement are the essence of this Agreement, and that each of such covenants and agreements is reasonable and necessary to protect and preserve the interests and business of the Company. Executive further acknowledges and agrees that: (i) each of such covenants and agreements is separate, distinct and severable, not only from the other of such covenants and agreements, but also from the remaining provisions of this Agreement, (ii) the unenforceability of any such covenants or agreements shall not affect the validity or enforceability of any other such covenants or agreements or any other provision or provisions of this Agreement, and (iii) in the event any court of competent jurisdiction or arbitrator, as applicable, determines, rules or holds that any such covenant or agreement hereof is overly broad or against the public policy of the state, then said court or arbitrator, as the case may be, is specifically authorized to reform and narrow said covenant or agreement to the extent necessary to make said reformed and narrowed covenant or agreement valid and enforceable to the maximum enforceable restriction permitted by law.
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ARTICLE 12
Remedies
In the event of a breach or threatened breach by Executive of Article 9 or Article 10 of this Agreement, Executive hereby consents and agrees that the Company shall be entitled to seek, in addition to other available remedies, a temporary or permanent injunction or other equitable relief against such breach or threatened breach from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages, or other available forms of relief.
ARTICLE 13
Proprietary Rights
13.1 Work Product. Executive acknowledges and agrees that all right, title, and interest in and to all writings, works of authorship, technology, inventions, discoveries, processes, techniques, methods, ideas, concepts, research, proposals, materials, and all other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, amended, conceived, or reduced to practice by Executive individually or jointly with others during the period of his employment by the Company and relate in any way to the business or contemplated business, products, activities, research, or development of the Company or result from any work performed by Executive for the Company (in each case, regardless of when or where prepared or whose equipment or other resources is used in preparing the same), all rights and claims related to the foregoing, and all printed, physical and electronic copies, and other tangible embodiments thereof (collectively, “Work Product”), as well as any and all rights in and to US and foreign (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing, (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases, (d) trade secrets, know-how, and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights, all improvements thereto and all similar or equivalent rights or forms of protection in any part of the world (collectively, “Intellectual Property Rights”), shall be the sole and exclusive property of the Company.
For purposes of this Agreement, Work Product includes, but is not limited to, Company information, including plans, publications, research, strategies, techniques, agreements, documents, contracts, terms of agreements, negotiations, know-how, computer programs, computer applications, software design, web design, work in process, databases, manuals, results, developments, reports, graphics, drawings, sketches, market studies, formulae, notes, communications, algorithms, product plans, product designs, styles, models, audiovisual programs, inventions, unpublished patent applications, original works of authorship, discoveries, experimental processes, experimental results, specifications, customer information, client information, customer lists, client lists, manufacturing information, marketing information, advertising information, and sales information.
13.2 Work Made for Hire; Assignment. Executive acknowledges that, by reason of being employed by the Company at the relevant times, to the extent permitted by law, all of the Work Product consisting of copyrightable subject matter is “work made for hire” as defined in 17 U.S.C. § 101 and such copyrights are therefore owned by the Company. To the extent that the foregoing does not apply, Executive hereby irrevocably assigns to the Company, for no additional consideration, Executive’s entire right, title, and interest in and to all Work Product and Intellectual Property Rights therein, including the right to sue, counterclaim, and recover for all past, present, and future infringement, misappropriation, or dilution thereof, and all rights corresponding thereto throughout the world. Nothing contained in this Agreement shall be construed to reduce or limit the Company’s rights, title, or interest in any Work Product or Intellectual Property Rights so as to be less in any respect than that the Company would have had in the absence of this Agreement.
13.3 Further Assurances; Power of Attorney. During and after his employment, Executive agrees to reasonably cooperate with the Company to (a) apply for, obtain, perfect, and transfer to the Company the Work Product as well as any and all Intellectual Property Rights in the Work Product in any jurisdiction in the world; and (b) maintain, protect and enforce the same, including, without limitation, giving testimony and executing and delivering to the Company any and all applications, oaths, declarations, affidavits, waivers, assignments, and other documents and instruments as shall be requested by the Company. Executive hereby irrevocably grants the Company power of attorney to execute and deliver any such documents on Executive’s behalf in his name and to do all other lawfully permitted acts to transfer the Work Product to the Company and further the transfer, prosecution, issuance, and maintenance of all Intellectual Property Rights therein, to the full extent permitted by law, if Executive does not promptly cooperate with the Company’s request (without limiting the rights the Company shall have in such circumstances by operation of law). The power of attorney is coupled with an interest and shall not be affected by Executive’s subsequent incapacity.
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13.4 No License. Executive understands that this Agreement does not, and shall not be construed to, grant Executive any license or right of any nature with respect to any Work Product or Intellectual Property Rights or any Confidential Information, materials, software, or other tools made available to him by the Company.
ARTICLE 14
Security
14.1 Security and Access. Executive agrees and covenants (a) to comply with all Company security policies and procedures as in force from time to time including without limitation those regarding computer equipment, telephone systems, voicemail systems, facilities access, monitoring, key cards, access codes, Company intranet, internet, social media and instant messaging systems, computer systems, e-mail systems, computer networks, document storage systems, software, data security, encryption, firewalls, passwords and any and all other Company facilities, IT resources and communication technologies (“Facilities and Information Technology Resources”); (b) not to access or use any Facilities and Information Technology Resources except as authorized by the Company; and (iii) not to access or use any Facilities and Information Technology Resources in any manner after the termination of Executive’s employment by the Company, whether termination is voluntary or involuntary. Executive agrees to notify the Company promptly in the event he learns of any violation of the foregoing by others, or of any other misappropriation or unauthorized access, use, reproduction, or reverse engineering of, or tampering with any Facilities and Information Technology Resources or other Company property or materials by others.
14.2 Exit Obligations. Upon (a) voluntary or involuntary termination of Executive’s employment or (b) the Company’s request at any time during Executive’s employment, Executive shall (i) provide or return to the Company any and all Company property, including keys, key cards, access cards, identification cards, security devices, employer credit cards, network access devices, computers, cell phones, smartphones, PDAs, equipment, speakers, webcams, manuals, reports, files, books, compilations, work product, e-mail messages, recordings, tapes, disks, thumb drives or other removable information storage devices, hard drives, negatives and data and all Company documents and materials belonging to the Company and stored in any fashion, including but not limited to those that constitute or contain any Confidential Information or Work Product, that are in the possession or control of Executive, whether they were provided to Executive by the Company or any of its business associates or created by Executive in connection with his/her employment by the Company; and (ii) delete or destroy all copies of any such documents and materials not returned to the Company that remain in Executive’s possession or control, including those stored on any non-Company devices, networks, storage locations, and media in Executive’s possession or control.
ARTICLE 15
Publicity
Executive hereby irrevocably consents to any and all uses and displays, by the Company and its agents, representatives and licensees, of Executive’s name, voice, likeness, image, appearance, and biographical information in, on or in connection with any pictures, photographs, audio and video recordings, digital images, websites, television programs and advertising, other advertising and publicity, sales and marketing brochures, books, magazines, other publications, CDs, DVDs, tapes, and all other printed and electronic forms and media throughout the world, at any time during or after the period of his employment by the Company, for all legitimate commercial and business purposes of the Company (“Permitted Uses”) without further consent from or royalty, payment, or other compensation to Executive. Executive hereby forever waives and releases the Company and its directors, officers, employees, and agents from any and all claims, actions, damages, losses, costs, expenses, and liability of any kind, arising under any legal or equitable theory whatsoever at any time during or after the period of his employment by the Company, arising directly or indirectly from the Company’s and its agents’, representatives’, and licensees’ exercise of their rights in connection with any Permitted Uses.
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ARTICLE 16
Notices
Any notice given under this Agreement to either party shall be made in writing. Notices shall be deemed given when (i) delivered by hand, document delivery service, (ii) sent by facsimile or email (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party) or (iii) mailed by registered or certified mail, return receipt requested, postage prepaid, and addressed to the party at the address set forth below.
Executive:
Yves LeMaitre
[●]
[●]
Email:[●]
Company:
Lightwave Logic, Inc.
369 Inverness Pkwy, Suite 350
Englewood, CO 80112
Attn: James Marcelli
Email: [email protected]
with a copy, which shall not constitute notice or service of process, to:
K&L Gates LLP
200 S. Biscayne Blvd., Suite 3900
Miami, FL 33131
Attn: Clayton E. Parker, Esq.
Email: Clayton. [email protected]
Each party may designate a different address for receiving notices by giving written notice of the different address to the other party. The written notice of the different address will be deemed given when it is received by the other party.
ARTICLE 17
Binding Agreement
17.1. Company’s Successors. The rights and obligations of the Company under this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the Company.
17.2. Executive’s Successors. This Agreement shall inure to the benefit and be enforceable by Executive’s personal representatives, legatees, and heirs. If Executive dies while amounts are still owed, such amounts shall be paid to Executive’s legatees or, if no such person or persons have been designated, to Executive’s estate.
ARTICLE 18
Waivers
The waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.
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ARTICLE 19
Entire Agreement
This instrument contains the entire agreement of the parties pertaining to the employment of Executive by the Company. The parties have not made any agreements or representations, oral or otherwise, express or implied, pertaining to the employment of Executive by the Company other than those specifically included in this Agreement.
ARTICLE 20
Amendment of Agreement
No change or modification of this Agreement shall be valid unless it is in writing and signed by the party against whom the change or modification is sought to be enforced. No change or modification by the Company shall be effective unless it is approved by the Company’s Board of Directors and signed by an officer specifically authorized to sign such documents.
ARTICLE 21
Severability of Provisions
If any provision of this Agreement is invalidated or held unenforceable, the invalidity or unenforceability of that provision or provisions shall not affect the validity or enforceability of any other provision of this Agreement.
ARTICLE 22
Assignment of Agreement
Other than as otherwise provided for in this Agreement, so long as Executive is engaged by the Company pursuant to this Agreement, the Company shall not assign this Agreement without Executive’s prior written consent, which consent shall not be unreasonably withheld. Executive may not assign this Agreement.
ARTICLE 23
Governing Law and Venue
This Agreement shall be deemed to have been entered into by all parties within the State of Colorado and all questions regarding the validity and interpretation of this Agreement shall be governed by and construed and enforced in all respects in accordance with the laws of the State of Colorado as applied to contracts made and to be performed entirely within Colorado without regard to choice of law provisions. The sole and proper venue shall be the City of Englewood and County of Arapahoe, Colorado.
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ARTICLE 24
Arbitration of Disputes
Any dispute, controversy or claim arising out of or relating to this Agreement, its enforcement, arbitrability or interpretation, or because of an alleged breach, default, or misrepresentation in connection with any of its provisions, including any alleged violation of statute, common law or public policy shall be submitted to final and binding arbitration before the American Arbitration Association to be held in the City of Englewood and County of Arapahoe, Colorado before a single arbitrator, in accordance with the then-current Employment Arbitration Rules and Mediation Procedures and the Federal Arbitration Act, as modified by the terms and conditions contained in this paragraph. By initialing below, Executive agrees to waive all rights to a jury trial. The arbitrator shall be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by the American Arbitration Association. The arbitrator shall issue a written opinion stating the essential findings and conclusions on which the arbitrator’s award is based. Company will pay the arbitrator’s fees and arbitration expenses and any other costs unique to the arbitration hearing (recognizing that each side bears its own deposition, witness, expert and attorney’s fees and other expenses to the same extent as if the matter were being heard in court). If, however, any party prevails on a statutory claim that affords the prevailing party attorneys’ fees and costs, then the arbitrator may award reasonable attorneys’ fees and costs to the prevailing party. Any dispute as to who is a prevailing party and/or the reasonableness of any fee or costs shall be resolved by the arbitrator.
This Agreement to arbitrate is freely negotiated between Executive and Company and is mutually entered into between the parties. Each party fully understands and agrees that they are giving up certain rights otherwise afforded to them by civil court actions, including but not limited to the right to a jury trial.
/s/ YL By initialing here, Executive acknowledges he has read this paragraph and agrees with the arbitration provision herein.
ARTICLE 25
Acknowledgment
THE EMPLOYEE ACKNOWLEDGES AND AGREES THAT HE HAS FULLY READ, UNDERSTANDS AND VOLUNTARILY ENTERS INTO THIS AGREEMENT. THE EMPLOYEE ACKNOWLEDGES AND AGREES THAT HE HAS HAD AN OPPORTUNITY TO ASK QUESTIONS AND CONSULT WITH AN ATTORNEY OF HIS CHOICE BEFORE SIGNING THIS AGREEMENT.
[Signature page follows.]
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IN WITNESS, the parties have executed this Agreement in duplicate on the date and year first above written.
| Executive, | ||
| /s/ Yves LaMaitre | ||
| Yves LeMaitre | ||
Lightwave Logic, Inc., | ||
| By: | /s/ James S. Marcelli | |
| Name: | James S. Marcelli | |
| Title: | Chief Financial and Chief Operating Officer | |
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Appendix A
Other Compensation
I. Bonus: Up to $150,000, to be awarded at the discretion of the Board of Directors.
II. Restricted Stock Awards: 50,000 shares which shall vest after 6 months so long as Executive is still employed at such time.
III. Option Grant:
Options: 150,000 (non-qualified)
Exercise Price: $2.65
Grant Date: December 10, 2024
Expiration Date: December 9, 2034
Vesting Schedule: The options vest on the sixth month anniversary of date of grant. The option grant shall be made pursuant to the Company’s 2016 Equity Incentive Plan, as amended from time to time, and subject to the terms of the Plan’s standard non-statutory stock option agreement.
Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “Agreement”) made as of December 10, 2024, by and between Lightwave Logic, Inc., a Nevada corporation (the “Company”), whose principal place of business is at 369 Inverness Parkway, Suite 350, Englewood, Colorado 80112; and Thomas E. Zelibor (“Executive”), who resides at [●].
WHEREAS, the Company wishes to procure the services of Executive under the terms and conditions set forth and Executive wishes to be employed on these terms and conditions.
WHEREAS, the parties to this Agreement wish to enter into a written expression of their relationship as employer and employee.
THEREFORE, in consideration of the agreements contained in this Agreement, the parties, intending to be legally bound, agree as follows:
ARTICLE 1
Employment
1.1. Employment. The Company agrees to employ Executive, and Executive accepts employment with the Company, on and subject to the terms and conditions set forth in this Agreement.
1.2. Term. Subject to the provisions for termination as provided in Article 8 of this Agreement, the term of this Agreement shall begin on December 11, 2024 and shall continue for twelve (12) months thereafter (the “Employment Term”). 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 Executive to act as its President. Executive shall be responsible for performing such duties for the Company as are customarily associated with such position for a similar situated company. Executive agrees that he will serve the Company faithfully and to the best of his ability during the Employment Term, under the direction of the Board of Directors of the Company. The Company and Executive may jointly from time to time to change the nature of Executive’s duties and job title.
2.2. Time Devoted to Work. Executive agrees that he will devote all of the necessary business time, attention, and energies, as well as Executive’s best talents and abilities to the business of the Company in accordance with the Company’s instructions and directions. Executive may engage in other business activities unrelated to the Company during the Employment Term so long as such other business activities do not interfere with the terms and conditions of this Agreement.
ARTICLE 3
Place of Employment
Executive shall perform his duties under this Agreement at 369 Inverness Parkway, Suite 350, Englewood, Colorado 80112 or at any Company office of his choosing.
ARTICLE 4
Compensation of Executive
4.1. Base Compensation. For all services rendered by Executive under this Agreement, the Company agrees to pay Executive the rate of $360,000 per year ($30,000 per month), which shall be payable to Executive not less frequently than monthly, or as is consistent with the Company’s practice for its other employees.
4.2. Other Compensation. Executive shall receive other compensation as more fully described on Appendix A, 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 Executive for all reasonable business expenses incurred by Executive in performing Executive’s duties and obligations under this Agreement, but only if Executive properly accounts for expenses in accordance with the Company’s policies.
4.2 Bonus Compensation. Executive shall be eligible to receive bonus compensation to be determined by the Board of Directors from time to time in their sole discretion.
ARTICLE 5
Personal Time Off (PTO) and Other Paid Absences
5.1. Personal Time Off (PTO). Executive shall be entitled to the PTO as authorized in the Lightwave Logic Employee Handbook.
5.2. Holidays. Executive shall be entitled to the paid holidays as authorized in the Lightwave Logic Employee Handbook.
ARTICLE 6
Fringe Benefits
Executive 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. No amounts paid to Executive from an employee benefit plan shall count as compensation due Executive as base salary or additional compensation. Nothing in this Agreement shall prohibit the Company from modifying or terminating any of its employee benefit plans in a manner that does not discriminate between Executive and other Company employees.
ARTICLE 7
Maintenance of Liability Insurance
So long as Executive shall serve as an executive officer of the Company pursuant to this 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, Executive shall be named as an insured in such manner as to provide Executive the same rights and benefits as are accorded to the most favorably insured of the Company’s officers or directors.
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ARTICLE 8
Termination of Employment
8.1. Termination of Employment. Executive’s employment hereunder shall automatically terminate upon (i) his death (ii) the expiration of the Employment Term; or (iii) Executive voluntarily leaving the employ of the Company with 30 days prior written notice.
8.2. Termination For Executive’s Failure to Meet Performance Standard. Executive’s employment with the Company shall terminate, at the Company’s discretion, upon written notice to Executive if the Company terminates his employment hereunder for “cause”. For purposes hereof, “cause” shall include (i) Executive’s willful malfeasance, misfeasance, nonfeasance or gross negligence, (ii) any willful misrepresentation or concealment of a material fact made by Executive in connection with this Agreement; (iii) the willful breach of any covenant made by Executive hereunder; or (iv) the failure of Executive to meet the performance standards more fully described in Appendix A attached hereto and made a part hereof.
Notwithstanding the above, if Executive is terminated by the Company without cause during the Employment Term, the Company shall be obligated to pay to Executive the compensation set forth in Article 4 hereof for the remainder of the Employment Term.
ARTICLE 9
Confidential Information
9.1. Confidential Information. Executive understands and acknowledges that during the Employment Term, he will have access to and learn about Confidential Information, as defined below.
9.2 Confidential Information Defined. For purposes of this Agreement, “Confidential Information” includes, but is not limited to, all information not generally known to the public, in spoken, printed, electronic or any other form or medium, relating directly or indirectly to: business processes, practices, methods, policies, plans, publications, documents, research, operations, services, strategies, techniques, agreements, contracts, terms of agreements, transactions, potential transactions, negotiations, pending negotiations, know-how, trade secrets, computer programs, computer software, applications, operating systems, software design, web design, work-in-process, databases, manuals, records, articles, systems, material, sources of material, supplier information, vendor information, financial information, results, accounting information, accounting records, legal information, marketing information, advertising information, pricing information, credit information, design information, payroll information, staffing information, personnel information, employee lists, supplier lists, vendor lists, developments, reports, internal controls, security procedures, graphics, drawings, sketches, market studies, sales information, revenue, costs, formulae, notes, communications, algorithms, product plans, designs, styles, models, ideas, audiovisual programs, inventions, unpublished patent applications, original works of authorship, discoveries, experimental processes, experimental results, specifications, customer information, customer lists, client information, client lists, manufacturing information, factory lists, distributor lists, and buyer lists of the Company or its businesses or any existing or prospective customer, supplier, investor or other associated third party, or of any other person or entity that has entrusted information to the Company in confidence.
Executive understands that the above list is not exhaustive, and that Confidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used.
Executive understands and agrees that Confidential Information includes information developed by him in the course of his employment by the Company as if the Company furnished the same Confidential Information to Executive in the first instance. Confidential Information shall not include information that is generally available to and known by the public at the time of disclosure to Executive; provided that, such disclosure is through no direct or indirect fault of Executive or person(s) acting on Executive’s behalf.
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9.3 Company Creation and Use of Confidential Information. Executive understands and acknowledges that the Company has invested, and continues to invest, substantial time, money, and specialized knowledge into developing its resources, creating a customer base, generating customer and potential customer lists, training its employees, and improving its offerings in the field of advanced organic electro-optic polymer systems and P2ICTM technology. Executive understands and acknowledges that as a result of these efforts, the Company has created and continues to use and create Confidential Information. This Confidential Information provides the Company with a competitive advantage over others in the marketplace.
9.4 Disclosure and Use Restrictions. Executive agrees and covenants: (i) to treat all Confidential Information as strictly confidential; (ii) not to directly or indirectly disclose, publish, communicate, or make available Confidential Information, or allow it to be disclosed, published, communicated, or made available, in whole or part, to any entity or person whatsoever (including other employees of the Company) not having a need to know and authority to know and use the Confidential Information in connection with the business of the Company and, in any event, not to anyone outside of the direct employ of the Company except as required in the performance of Executive’s authorized employment duties to the Company or with the prior consent of the Chair of the Board of Directors acting on behalf of the Company in each instance (and then, such disclosure shall be made only within the limits and to the extent of such duties or consent); and (iii) not to access or use any Confidential Information, and not to copy any documents, records, files, media, or other resources containing any Confidential Information, or remove any such documents, records, files, media, or other resources from the premises or control of the Company, except as required in the performance of Executive’s authorized employment duties to the Company or with the prior consent of the Chair of the Board of Directors acting on behalf of the Company in each instance (and then, such disclosure shall be made only within the limits and to the extent of such duties or consent). Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. Executive shall promptly provide written notice of any such order to the Chair of the Board of Directors.
9.5 Notice of Immunity Under the Economic Espionage Act of 1996, as amended by the Defend Trade Secrets Act of 2016 (“DTSA”). Notwithstanding any other provision of this Agreement: (i) Executive will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that: (A) is made (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (2) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed under seal in a lawsuit or other proceeding; and (ii) If Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Executive may disclose the Company’s trade secrets to Executive’s attorney and use the trade secret information in the court proceeding if Executive: (A) files any document containing trade secrets under seal; and (B) does not disclose trade secrets, except pursuant to court order.
9.6 Executive understands and acknowledges that his obligations under this Agreement with regard to any particular Confidential Information shall commence immediately upon Executive first having access to such Confidential Information (whether before or after he begins employment by the Company) and shall continue during and after his employment by the Company until such time as such Confidential Information has become public knowledge other than as a result of Executive’s breach of this Agreement or breach by those acting in concert with Executive or on Executive’s behalf.
ARTICLE 10
Restrictive Covenants
10.1 Acknowledgement. Executive understands that the nature of Executive’s position gives him access to and knowledge of Confidential Information and places him in a position of trust and confidence with the Company. Executive understands and acknowledges that the intellectual services he provides to the Company are unique, special, or extraordinary because of his leadership skills and experience in the photonics industry that is necessary to move the Company into its next level of performance. Executive further understands and acknowledges that the Company’s ability to reserve these for the exclusive knowledge and use of the Company is of great competitive importance and commercial value to the Company, and that improper use or disclosure by Executive is likely to result in unfair or unlawful competitive activity.
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10.2 This Article 10 does not, in any way, restrict or impede Executive from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation, or order. Executive shall promptly provide written notice of any such order to the Chair of the Board of Directors.
10.3 Non-Solicitation of Employees. Executive understands and acknowledges that the Company has a legitimate business interest in retaining its employees, in particular its scientists and engineers, who are crucial to the growth and development of the Company. Executive agrees and covenants not to directly or indirectly solicit, hire, recruit, attempt to hire or recruit, or induce the termination of employment of any employee of the Company for a period of one (1) year, to run consecutively, beginning on the last day of Executive’s employment with the Company.
10.4 Non-Solicitation of Customers. Executive understands and acknowledges that because of Executive’s experience with and relationship to the Company, he will have access to and learn about much or all of the Company’s customer information. “Customer Information” includes, but is not limited to, names, phone numbers, addresses, e-mail addresses, order history, order preferences, chain of command, pricing information, and other information identifying facts and circumstances specific to the customer and relevant to sales or services. Executive understands and acknowledges that loss of this customer relationship and/or will cause significant and irreparable harm. Executive agrees and covenants, during for a period of one (1) year, to run consecutively, beginning on the last day of Executive’s employment with the Company, not to directly or indirectly solicit, contact (including but not limited to e-mail, regular mail, express mail, telephone, fax, and instant message), attempt to contact, or meet with the Company’s current, former or prospective customers for purposes of offering or accepting goods or services similar to or competitive with those offered by the Company.
ARTICLE 11
Construction
Executive acknowledges and agrees that the covenants and agreements contained in Articles 9 and 10 of this Agreement are the essence of this Agreement, and that each of such covenants and agreements is reasonable and necessary to protect and preserve the interests and business of the Company. Executive further acknowledges and agrees that: (i) each of such covenants and agreements is separate, distinct and severable, not only from the other of such covenants and agreements, but also from the remaining provisions of this Agreement, (ii) the unenforceability of any such covenants or agreements shall not affect the validity or enforceability of any other such covenants or agreements or any other provision or provisions of this Agreement, and (iii) in the event any court of competent jurisdiction or arbitrator, as applicable, determines, rules or holds that any such covenant or agreement hereof is overly broad or against the public policy of the state, then said court or arbitrator, as the case may be, is specifically authorized to reform and narrow said covenant or agreement to the extent necessary to make said reformed and narrowed covenant or agreement valid and enforceable to the maximum enforceable restriction permitted by law.
ARTICLE 12
Remedies
In the event of a breach or threatened breach by Executive of Article 9 or Article 10 of this Agreement, Executive hereby consents and agrees that the Company shall be entitled to seek, in addition to other available remedies, a temporary or permanent injunction or other equitable relief against such breach or threatened breach from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages, or other available forms of relief.
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ARTICLE 13
Proprietary Rights
13.1 Work Product. Executive acknowledges and agrees that all right, title, and interest in and to all writings, works of authorship, technology, inventions, discoveries, processes, techniques, methods, ideas, concepts, research, proposals, materials, and all other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, amended, conceived, or reduced to practice by Executive individually or jointly with others during the period of his employment by the Company and relate in any way to the business or contemplated business, products, activities, research, or development of the Company or result from any work performed by Executive for the Company (in each case, regardless of when or where prepared or whose equipment or other resources is used in preparing the same), all rights and claims related to the foregoing, and all printed, physical and electronic copies, and other tangible embodiments thereof (collectively, “Work Product”), as well as any and all rights in and to US and foreign (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing, (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases, (d) trade secrets, know-how, and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights, all improvements thereto and all similar or equivalent rights or forms of protection in any part of the world (collectively, “Intellectual Property Rights”), shall be the sole and exclusive property of the Company.
For purposes of this Agreement, Work Product includes, but is not limited to, Company information, including plans, publications, research, strategies, techniques, agreements, documents, contracts, terms of agreements, negotiations, know-how, computer programs, computer applications, software design, web design, work in process, databases, manuals, results, developments, reports, graphics, drawings, sketches, market studies, formulae, notes, communications, algorithms, product plans, product designs, styles, models, audiovisual programs, inventions, unpublished patent applications, original works of authorship, discoveries, experimental processes, experimental results, specifications, customer information, client information, customer lists, client lists, manufacturing information, marketing information, advertising information, and sales information.
13.2 Work Made for Hire; Assignment. Executive acknowledges that, by reason of being employed by the Company at the relevant times, to the extent permitted by law, all of the Work Product consisting of copyrightable subject matter is “work made for hire” as defined in 17 U.S.C. § 101 and such copyrights are therefore owned by the Company. To the extent that the foregoing does not apply, Executive hereby irrevocably assigns to the Company, for no additional consideration, Executive’s entire right, title, and interest in and to all Work Product and Intellectual Property Rights therein, including the right to sue, counterclaim, and recover for all past, present, and future infringement, misappropriation, or dilution thereof, and all rights corresponding thereto throughout the world. Nothing contained in this Agreement shall be construed to reduce or limit the Company’s rights, title, or interest in any Work Product or Intellectual Property Rights so as to be less in any respect than that the Company would have had in the absence of this Agreement.
13.3 Further Assurances; Power of Attorney. During and after his employment, Executive agrees to reasonably cooperate with the Company to (a) apply for, obtain, perfect, and transfer to the Company the Work Product as well as any and all Intellectual Property Rights in the Work Product in any jurisdiction in the world; and (b) maintain, protect and enforce the same, including, without limitation, giving testimony and executing and delivering to the Company any and all applications, oaths, declarations, affidavits, waivers, assignments, and other documents and instruments as shall be requested by the Company. Executive hereby irrevocably grants the Company power of attorney to execute and deliver any such documents on Executive’s behalf in his name and to do all other lawfully permitted acts to transfer the Work Product to the Company and further the transfer, prosecution, issuance, and maintenance of all Intellectual Property Rights therein, to the full extent permitted by law, if Executive does not promptly cooperate with the Company’s request (without limiting the rights the Company shall have in such circumstances by operation of law). The power of attorney is coupled with an interest and shall not be affected by Executive’s subsequent incapacity.
13.4 No License. Executive understands that this Agreement does not, and shall not be construed to, grant Executive any license or right of any nature with respect to any Work Product or Intellectual Property Rights or any Confidential Information, materials, software, or other tools made available to him by the Company.
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ARTICLE 14
Security
14.1 Security and Access. Executive agrees and covenants (a) to comply with all Company security policies and procedures as in force from time to time including without limitation those regarding computer equipment, telephone systems, voicemail systems, facilities access, monitoring, key cards, access codes, Company intranet, internet, social media and instant messaging systems, computer systems, e-mail systems, computer networks, document storage systems, software, data security, encryption, firewalls, passwords and any and all other Company facilities, IT resources and communication technologies (“Facilities and Information Technology Resources”); (b) not to access or use any Facilities and Information Technology Resources except as authorized by the Company; and (iii) not to access or use any Facilities and Information Technology Resources in any manner after the termination of Executive’s employment by the Company, whether termination is voluntary or involuntary. Executive agrees to notify the Company promptly in the event he learns of any violation of the foregoing by others, or of any other misappropriation or unauthorized access, use, reproduction, or reverse engineering of, or tampering with any Facilities and Information Technology Resources or other Company property or materials by others.
14.2 Exit Obligations. Upon (a) voluntary or involuntary termination of Executive’s employment or (b) the Company’s request at any time during Executive’s employment, Executive shall (i) provide or return to the Company any and all Company property, including keys, key cards, access cards, identification cards, security devices, employer credit cards, network access devices, computers, cell phones, smartphones, PDAs, equipment, speakers, webcams, manuals, reports, files, books, compilations, work product, e-mail messages, recordings, tapes, disks, thumb drives or other removable information storage devices, hard drives, negatives and data and all Company documents and materials belonging to the Company and stored in any fashion, including but not limited to those that constitute or contain any Confidential Information or Work Product, that are in the possession or control of Executive, whether they were provided to Executive by the Company or any of its business associates or created by Executive in connection with his/her employment by the Company; and (ii) delete or destroy all copies of any such documents and materials not returned to the Company that remain in Executive’s possession or control, including those stored on any non-Company devices, networks, storage locations, and media in Executive’s possession or control.
ARTICLE 15
Publicity
Executive hereby irrevocably consents to any and all uses and displays, by the Company and its agents, representatives and licensees, of Executive’s name, voice, likeness, image, appearance, and biographical information in, on or in connection with any pictures, photographs, audio and video recordings, digital images, websites, television programs and advertising, other advertising and publicity, sales and marketing brochures, books, magazines, other publications, CDs, DVDs, tapes, and all other printed and electronic forms and media throughout the world, at any time during or after the period of his employment by the Company, for all legitimate commercial and business purposes of the Company (“Permitted Uses”) without further consent from or royalty, payment, or other compensation to Executive. Executive hereby forever waives and releases the Company and its directors, officers, employees, and agents from any and all claims, actions, damages, losses, costs, expenses, and liability of any kind, arising under any legal or equitable theory whatsoever at any time during or after the period of his employment by the Company, arising directly or indirectly from the Company’s and its agents’, representatives’, and licensees’ exercise of their rights in connection with any Permitted Uses.
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ARTICLE 16
Notices
Any notice given under this Agreement to either party shall be made in writing. Notices shall be deemed given when (i) delivered by hand, document delivery service, (ii) sent by facsimile or email (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party) or (iii) mailed by registered or certified mail, return receipt requested, postage prepaid, and addressed to the party at the address set forth below.
Executive:
Thomas E. Zelibor
[●]
[●]
Email:[●]
Company:
Lightwave Logic, Inc.
369 Inverness Pkwy, Suite 350
Englewood, CO 80112
Attn: James Marcelli
Email:[email protected]
with a copy, which shall not constitute notice or service of process, to:
K&L Gates LLP
200 S. Biscayne Blvd., Suite 3900
Miami, FL 33131
Attn: Clayton E. Parker, Esq.
Email:Clayton. [email protected]
Each party may designate a different address for receiving notices by giving written notice of the different address to the other party. The written notice of the different address will be deemed given when it is received by the other party.
ARTICLE 17
Binding Agreement
17.1. Company’s Successors. The rights and obligations of the Company under this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the Company.
17.2. Executive’s Successors. This Agreement shall inure to the benefit and be enforceable by Executive’s personal representatives, legatees, and heirs. If Executive dies while amounts are still owed, such amounts shall be paid to Executive’s legatees or, if no such person or persons have been designated, to Executive’s estate.
ARTICLE 18
Waivers
The waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.
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ARTICLE 19
Entire Agreement
This instrument contains the entire agreement of the parties pertaining to the employment of Executive by the Company. The parties have not made any agreements or representations, oral or otherwise, express or implied, pertaining to the employment of Executive by the Company other than those specifically included in this Agreement.
ARTICLE 20
Amendment of Agreement
No change or modification of this Agreement shall be valid unless it is in writing and signed by the party against whom the change or modification is sought to be enforced. No change or modification by the Company shall be effective unless it is approved by the Company’s Board of Directors and signed by an officer specifically authorized to sign such documents.
ARTICLE 21
Severability of Provisions
If any provision of this Agreement is invalidated or held unenforceable, the invalidity or unenforceability of that provision or provisions shall not affect the validity or enforceability of any other provision of this Agreement.
ARTICLE 22
Assignment of Agreement
Other than as otherwise provided for in this Agreement, so long as Executive is engaged by the Company pursuant to this Agreement, the Company shall not assign this Agreement without Executive’s prior written consent, which consent shall not be unreasonably withheld. Executive may not assign this Agreement.
ARTICLE 23
Governing Law and Venue
This Agreement shall be deemed to have been entered into by all parties within the State of Colorado and all questions regarding the validity and interpretation of this Agreement shall be governed by and construed and enforced in all respects in accordance with the laws of the State of Colorado as applied to contracts made and to be performed entirely within Colorado without regard to choice of law provisions. The sole and proper venue shall be the City of Englewood and County of Arapahoe, Colorado.
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ARTICLE 24
Arbitration of Disputes
Any dispute, controversy or claim arising out of or relating to this Agreement, its enforcement, arbitrability or interpretation, or because of an alleged breach, default, or misrepresentation in connection with any of its provisions, including any alleged violation of statute, common law or public policy shall be submitted to final and binding arbitration before the American Arbitration Association to be held in the City of Englewood and County of Arapahoe, Colorado before a single arbitrator, in accordance with the then-current Employment Arbitration Rules and Mediation Procedures and the Federal Arbitration Act, as modified by the terms and conditions contained in this paragraph. By initialing below, Executive agrees to waive all rights to a jury trial. The arbitrator shall be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by the American Arbitration Association. The arbitrator shall issue a written opinion stating the essential findings and conclusions on which the arbitrator’s award is based. Company will pay the arbitrator’s fees and arbitration expenses and any other costs unique to the arbitration hearing (recognizing that each side bears its own deposition, witness, expert and attorney’s fees and other expenses to the same extent as if the matter were being heard in court). If, however, any party prevails on a statutory claim that affords the prevailing party attorneys’ fees and costs, then the arbitrator may award reasonable attorneys’ fees and costs to the prevailing party. Any dispute as to who is a prevailing party and/or the reasonableness of any fee or costs shall be resolved by the arbitrator.
This Agreement to arbitrate is freely negotiated between Executive and Company and is mutually entered into between the parties. Each party fully understands and agrees that they are giving up certain rights otherwise afforded to them by civil court actions, including but not limited to the right to a jury trial.
/s/ TZ By initialing here, Executive acknowledges he has read this paragraph and agrees with the arbitration provision herein.
ARTICLE 25
Acknowledgment
THE EMPLOYEE ACKNOWLEDGES AND AGREES THAT HE HAS FULLY READ, UNDERSTANDS AND VOLUNTARILY ENTERS INTO THIS AGREEMENT. THE EMPLOYEE ACKNOWLEDGES AND AGREES THAT HE HAS HAD AN OPPORTUNITY TO ASK QUESTIONS AND CONSULT WITH AN ATTORNEY OF HIS CHOICE BEFORE SIGNING THIS AGREEMENT.
[Signature page follows.]
| 10 |
IN WITNESS, the parties have executed this Agreement in duplicate on the date and year first above written.
| Executive, | ||
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/s/ Thomas E. Zeilbor | ||
| Thomas E. Zelibor | ||
|
Lightwave Logic, Inc., | ||
| By: | /s/ James S. Marcelli | |
| Name: | James S. Marcelli | |
| Title: | Chief Financial and Chief Operating Officer | |
| 11 |
Appendix A
Other Compensation
I. Annual Bonus: Up to $75,000, to be awarded at the discretion of the Board of Directors.
II. Restricted Stock Awards: 35,000 shares which shall vest after 6 months so long as Executive is still employed at such time.
III. Option Grant:
Options: 80,000 (non-qualified)
Exercise Price: $2.65
Grant Date: December 10, 2024
Expiration Date: December 9, 2034
Vesting Schedule: The options vest on the sixth month anniversary of date of grant. The option grant shall be made pursuant to the Company’s 2016 Equity Incentive Plan, as amended from time to time, and subject to the terms of the Plan’s standard non-statutory stock option agreement.