PERSONAL SERVICES AGREEMENT
This Personal Services Agreement (this "Agreement"), effective as of June
16, 2000, is by and between Dynamic Materials Corporation, a Delaware
corporation (the "Company"), and John G. Banker ("Employee").
WHEREAS, the Company wishes to employ the Employee, and the Employee
desires to accept such employment, on the terms and conditions set forth herein.
WHEREAS, it is the mutual objective of the parties:
To return the Company to profitability quickly by reducing cost and
raising prices prudently;
To have the lowest cost, most efficient clad metal sales operation in
the world;
To have the strongest, most efficient clad metal marketing effort in
the world;
To make the highest return for our market exposure by selling a range
of synergistic products; and
To increase the market for profitable explosion clad products in a
cost effective manner.
1. Employment. The Company hereby employs Employee as Vice President,
Marketing and Sales, Bonding Division, reporting to the CEO of the Company and
the Board of Directors. Employee agrees to work with and to consult with the COO
and the CFO of the Company, as requested by the CEO, it being understood that
neither of such officers shall have ultimate supervisory authority over the
Employee. Employee hereby accepts such employment and agrees to perform such
duties and responsibilities as are assigned to him from time to time by the CEO
and the Board of Directors.
2. Responsibility. The obligations of the Employee shall include (a)
complete responsibility for worldwide sales and marketing of clad products; and
(b) if so requested by the CEO, the range of products for which the Employee
will have sales responsibility may be expanded from time to time; and (c)
providing advice and support to the R & D and technical teams.
3. Full-Time Best Efforts. Employee shall devote his full and exclusive
professional time and attention to the performance of his obligations under this
Agreement, and will at all times faithfully, industriously and to the best of
his ability, experience and talent, perform all of his obligations hereunder.
4. Term of Agreement. This Agreement shall be effective on the date hereof
and shall continue for 5 years (the "Term") unless sooner terminated pursuant to
Section 6 below.
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5. Compensation.
(a) Base Salary. During the term of this Agreement, the Company shall pay
the Employee a yearly salary of $125,000 (herein referred to as the "Base
Salary") payable in such installments as is the policy of the Company with
respect to other similarly situated employees. Employee will be eligible for a
merit salary review at year-end 2000 and annually thereafter, consistent with
the Company's policy for executive officers and financial results of the Bonding
Division.
(b) Performance Bonus. Based upon performance and achievement of mutually
agreed upon goals, including those herein, Employee will be eligible to receive
various bonuses not to exceed a total of 150% of Employee's Base Salary.
Sales Performance Bonus: The objective is to optimize the sales performance
of the Company by incentivizing superior sales performance. At the
beginning of each fiscal year, Company management will establish an
operations budget for the sales department of the Bonding Division, based
upon projected overhead costs, conservative sales projections and an
expense budget for the sales department of the Bonding Division. This shall
permit determination of the manufacturing profit before manufacturing
overhead (i.e., sales less the sum of materials, subcontract costs,
freight, direct labor and other direct costs) required to achieve minimum
performance targets established and approved by the Board of Directors to
break even (the "Target Performance" or "TP"). (The ratio of actual
performance ("Actual Performance" or "AP") of the sales department of the
Bonding Division to the TP of the sales department of the Bonding Division
is the "TP Ratio.") The Actual Performance shall be deemed to be the
projected manufacturing profit of the Bonding Division based upon actual
selling prices, actual metal and services costs, and projected direct labor
costs (based upon Company standards). Employee's Sales Performance Bonus
shall be based upon the sales department of the Bonding Division's
achieving a level of Actual Performance that exceeds the Target Performance
level, based upon the operations budget of the Bonding Division as
described above. In computing the Actual Performance of the sales
department of the Bonding Division, the amount of profit shall be reduced
on a dollar-for-dollar basis for any amounts spent by the sales department
of the Bonding Division over such department's expense budget.
Actual Performance Bonus as a Percent of Actual Performance,
with a Maximum of 150% of Employee's
Base Salary
If Then
-- ----
AP < or = 1.2 x TP.............. .....0% times AP = bonus
1.2 x TP < AP < or = 1.4 x TP... .....0.6% times AP = bonus
1.4 x TP < AP < or = 1.6 x TP... .....1.0% times AP = bonus
1.6 x TP < AP................... .....1.5% times AP = bonus
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<PAGE>
The sales performance shall be calculated on orders received, produced,
shipped and invoiced.
Justified claims in respect of the performance of the Bonding Division's
sales department shall be deducted from Actual Performance. Specifically,
in the event there are uncollectible accounts, the actual performance
amount related to such uncollectible accounts shall be deducted from the
Actual Performance of the Bonding Division sales department.
Unless mutually agreed to the contrary, the actual TP Ratio must be higher
than 1.00.
In FY2000, the calculation shall be based upon the DMC FY2000 Budget, shall
be prorated for the number of months remaining in the year, and shall apply
to sales after dating of this Agreement only.
This incentive system may be adjusted and other performance incentives
established as mutually agreed upon, particularly in the event Employee's
responsibility is expanded to include manufacturing operations.
(c) Stock Options. As a "sign-on bonus," within six months of the
Employee's employment date, Employee will be granted an option to purchase
shares of the Common Stock of the Company pursuant to the Company's 1997 Equity
Incentive Plan or any other stock option plan adopted during the term of this
Agreement (the "Option Plan"). The number of shares subject to such stock option
grant shall be determined by a committee of the Board of Directors and shall be
comparable to the number of stock option shares customarily granted to other
senior executive officers of the Company as a "sign-on bonus." Future stock
options may be granted at the discretion of the management and the Board of
Directors.
(d) Benefits. Employee shall be entitled to receive all benefits materially
comparable to those generally available from time to time to other executives of
the Company, including (i) term life insurance coverage in the amount of
$300,000, which is in addition to the standard term life insurance coverage
provided in the Company's standard benefits plan; (ii) participation in the
executive long-term disability plan, subject to any waiting periods or
exclusions required by the insurance provider; (iii) four weeks of vacation per
year until such time as Employee's length of service entitled Employee to
additional vacation; (iv) participation in the Company's standard benefit
programs including health and dental insurance, term life insurance, accidental
death and dismemberment insurance, short and long-term disability, paid holidays
and certain other standard benefits provided by the Company; and (v)
participation in the Company's 401(k) retirement plan with a matching
contribution made by the Company to the plan (subject to standard plan waiting
periods and other provisions of the plan consistent with the Company's policies
with respect to executive officers).
(e) Expense Reimbursement. The Company shall reimburse Employee for all
travel expenses and other disbursements incurred by Employee for or on behalf of
the Company in
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<PAGE>
the performance of his duties hereunder, subject to and in accordance with the
Company's expense reimbursement policies and procedures, as amended from time to
time.
6. Termination.
(a) The Company may terminate the Agreement at any time for Cause (as
hereinafter defined) effective immediately upon written notice to Employee. Such
notice shall specify that a termination is being made for Cause and state the
basis therefor. For purposes of this Agreement, termination for "Cause" shall be
defined as termination because of:
(i) The willful and continued failure by Employee to substantially
perform, or the gross negligence in the performance of, his duties
hereunder for a period of 15 days after the Chief Executive Officer of the
Company has made a written demand for performance which specifically
identifies the manner in which he believes that Employee has not
substantially performed his duties.
(ii) The commission by Employee of a willful act of dishonesty or
misconduct which is injurious to the Company.
(iii) A conviction or a plea of guilty or nolo contendere in
connection with fraud or any crime that constitutes a felony in the
jurisdiction involved.
(iv) The willful misconduct by Employee with respect to the business
and affairs of the Company, including the violation of any material Company
policy.
A termination pursuant to this Section 6(a) shall take effect 30 days after
the giving of the notice contemplated hereby unless Employee shall, during such
30-day period, remedy to the satisfaction of the Company the behavior specified
in such notice; provided, however, that such termination shall take effect
immediately upon the giving of such notice if the Company shall have determined
that such behavior is not remediable (which determination shall be stated in
such notice).
(b) The Company may terminate the Employee's employment for any reason
other than Cause at any time (referred to herein as a termination Without Cause)
during the Term.
(c) Involuntary Termination.
(i) If Employee is incapacitated or disabled by accident, sickness or
otherwise so as to render Employee mentally or physically incapable of
performing the services required to be performed by Employee under this
Agreement for a period of 90 consecutive days or longer or for a total of
90 days within any six-month period, the Company may, at that time or
within any reasonable time thereafter, at its option, terminate the
employment of the Employee under this Agreement immediately upon giving the
Employee notice to that effect.
(ii) If Employee dies during the Term, the Term shall be deemed to
have terminated as of the date of Employee's death.
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<PAGE>
(iii) Any termination of the Term under this Section 6(c) is
hereinafter referred to as an "Involuntary Termination."
(d) Any termination of the employment of the Employee hereunder other than
(i) a termination for Cause; (ii) a termination Without Cause; or (iii) an
Involuntary Termination shall be deemed to be a Voluntary Termination. A
Voluntary Termination shall be deemed to be effective immediately upon such
termination.
(e) Upon the termination of the Employee's employment hereunder pursuant to
an Involuntary Termination, a termination for Cause, a termination Without Cause
or a Voluntary Termination, neither Employee nor Employee's beneficiary or
estate shall have any further rights or claims against the Company under this
Agreement except the right to receive:
(i) the unpaid portion of the Base Salary provided for in Section
5(a), computed on a pro rata basis to the date of termination;
(ii) reimbursement for any expenses for which Employee shall not have
theretofore been reimbursed as provided in Section 5; and
(iii) if Employee has been terminated pursuant to a termination
Without Cause, Employee shall be entitled, in addition to the amounts
computed pursuant to Sections 5(a) and (b), to continue receiving the Base
Salary for a period equal to the longer of (a) six months from the date of
termination; or (b) that period beginning on the termination date and
ending on the fifth anniversary of the date of this Agreement, provided
that Employee shall continue to comply with the applicable provisions of
this Agreement.
7. Proprietary Information Agreement. Employee shall enter into the
Company's standard form of Proprietary Information Agreement attached hereto as
Exhibit A as of the date hereof, with the exception that the provisions of
Section 4 of such Exhibit A regarding non- competitive activities shall become
effective only in the event of a Voluntary Termination of the Employee's
employment as defined herein.
8. Additional Non-Competition Provisions. In furtherance of the agreements
contained in paragraph 7, Employee and Clad Metal Products, Inc. (a business
owned by Employee) shall cease to sell clad metals under the name of CLAD Metal
Products, Inc. effective no later than 10 days after the execution of this
Agreement.
9. Miscellaneous.
(a) Judicial Limitation. In the event that any provision of this Agreement
is more restrictive than permitted by the law of the jurisdiction in which the
Company seeks enforcement thereof, the provisions of this Agreement shall be
limited only to that extent that a judicial determination finds the same to be
unreasonable or otherwise enforceable. Such invalidity or unenforceability shall
not affect any other terms herein, but such term shall be deemed deleted, and
such deletion shall not affect the validity of the other terms hereof. In
addition, if any one or more of the terms contained in the Agreement shall for
any reason be held to be excessively broad or of an
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<PAGE>
overly long duration, that term shall be construed in a manner to enable it to
be enforced to the extent compatible with applicable law. Moreover,
notwithstanding any judicial determination that any provision of this Agreement
is not specifically enforceable, the parties agree that either of them may be
entitled to recover monetary damages as a result of any breach hereof by the
other.
(b) Injunctive Relief. In view of the nature of the rights in goodwill,
business reputation and prospects of the Company to be protected under this
Agreement, Employee understands and agrees that the Company could not be
reasonably or adequately compensated in damages in an action of law for
Employee's breach of his obligations hereunder. Accordingly, Employee
specifically agrees that the Company shall be entitled to temporary and
permanent injunctive relief to enforce the provisions of this Agreement and that
such relief may be granted without the necessity of proving actual damages. This
provision with respect to injunctive relief shall not, however, diminish the
right of the Company to claim and recover damages in addition to injunctive
relief.
(c) Waiver. The failure of the Company to enforce at any time any of the
provisions of this Agreement or to require at any performance by Employee of the
provisions hereof shall in no way be construed to be a waiver of such provisions
or to affect either the validity of this Agreement, or any part hereof, or the
right of the Company thereafter to enforce each and every provision in
accordance with the terms of this Agreement.
(d) Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
(e) Assignability. This Agreement shall be freely assignable by the Company
and shall inure to the benefit of its successors and assigns.
(f) Entire Agreement. This Agreement, including the Proprietary Information
Agreement and the Non-Competition Agreement referred to herein, which are
incorporated herein and made a part hereof, embody the entire agreement and
understanding of the parties hereto and supersede all prior agreements or
understandings (whether written or oral) with respect to the subject matter
hereof.
(g) Governing Law and Venue. The validity of this Agreement and any of its
terms and provisions, as well as the rights and duties of the parties hereunder,
shall be governed by the laws of the State of Colorado (without regard to its
conflicts of law doctrines) and the venue for any action to enforce or to
interpret this Agreement shall be in a court of competent jurisdiction located
in the State of Colorado and each of the parties consents to the jurisdiction of
such court in any such action or proceeding and waives any objection to venue
laid therein.
(h) Amendments. This Agreement may not be amended, altered or modified
other than by a written agreement between the parties hereto. Notwithstanding
the foregoing, the terms of this Agreement will be amended in the event of any
acquisition of or merger by the Company with any other entity.
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<PAGE>
(i) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
shall together constitute one and the same instrument. This Agreement shall
become binding when one or more counterparts hereof shall bear the signatures of
all of the parties indicated as the signatories hereto.
(j) Notices. All notices, requests, demands and other communications under
this Agreement shall be given in writing and shall be served either personally,
by facsimile or delivered by first class mail, registered or certified, return
receipt requested, postage prepaid and properly addressed to the parties as
noticed herein. Notice shall be deemed received upon the earliest of actual
receipt, confirmed facsimile or three (3) days following mailing pursuant to
this section.
(k) Interpretation. Each party has had the opportunity and has reviewed and
revised this Agreement and, therefore, the rule of construction requiring that
any ambiguity be resolved against the drafting party shall not be employed in
the interpretation of this Agreement. The section headings contained in this
Agreement are for convenience and reference purposes only and shall not affect
in any way the meaning and interpretation of this Agreement.
(l) Attorneys' Fees and Costs. If either party shall commence any action or
proceeding against the other to enforce the provisions hereof, or to recover
damages as a result of the alleged breach of any provisions hereof, the
prevailing party therein shall be entitled to recover all reasonable costs
incurred in connection therewith, including reasonable attorneys' fees.
[THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
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<PAGE>
EXECUTED as of the date first set forth above.
DYNAMIC MATERIALS CORPORATION
/s/ Bernard Fontana
----------------------------------
Bernard Fontana, President and
Chief Executive Officer
EMPLOYEE
/s/ John G. Banker
----------------------------------
John G. Banker
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<PAGE>
EXHIBIT A
DYNAMIC MATERIALS CORPORATION
KEY EMPLOYEE PROPRIETARY INFORMATION
AND INVENTIONS AGREEMENT
In consideration of my employment or continued employment by Dynamic
Materials Corporation, and the compensation now and hereafter paid to me, I
hereby agree as follows:
1. NONDISCLOSURE.
1.1 Recognition of Company's Rights; Nondisclosure. At all times during my
employment and thereafter, I will hold in strictest confidence and will not
disclose, use, lecture upon or publish any of the Company's Proprietary
Information (defined below), except as such disclosure, use or publication may
be required in connection with my work for the Company, or unless an officer of
the Company expressly authorizes such in writing. I will obtain the Company's
written approval before publishing or submitting for publication any material
(written, verbal or otherwise) that relates to my work at the Company and/or
incorporates any Proprietary Information. I hereby assign to the Company any
rights I may have or acquire in such Proprietary Information and recognize that
all Proprietary Information shall be the sole property of the Company and its
assigns.
1.2 Proprietary Information. The term "Proprietary Information" shall mean
any and all confidential and/or proprietary knowledge, data or information of
the Company. By way of illustration but not limitation, "Proprietary
Information" includes (a) trade secrets, inventions, mask works, ideas,
processes, formulas, source and object codes, data, programs, other works of
authorship, know-how, improvements, discoveries, developments, designs and
techniques (hereinafter collectively referred to as "Inventions"); and (b)
information regarding plans for research, development, new products, marketing
and selling, business plans, budgets and unpublished financial statements,
licenses, prices and costs, suppliers and customers; and (c) information
regarding the skills and compensation of other employees of the Company.
Notwithstanding the foregoing, it is understood that, at all such times, I am
free to use information which is generally known in the trade or industry, which
is not gained as a result of a breach of this Agreement, and my own skill,
knowledge, know-how and experience to whatever extent and in whichever way I
wish.
1.3 Third Party Information. I understand, in addition, that the Company
has received and in the future will receive from third parties confidential or
proprietary information ("Third Party Information") subject to a duty on the
Company's part to maintain the confidentiality of such information and to use it
only for certain limited purposes. During the term of my employment and
thereafter, I will hold Third Party Information in the strictest confidence and
will not disclose to anyone (other than Company personnel who need to know such
information in connection with their work for the Company) or use, except in
connection with my work for the Company, Third Party Information unless
expressly authorized by an officer of the Company in writing.
1.4 No Improper Use of Information of Prior Employers and Others. During my
employment by the Company I will not improperly use or disclose any confidential
information or trade secrets, if any, of any former employer or any other person
to whom I have an obligation of confidentiality, and I will not bring onto the
premises of the Company any unpublished documents or any property belonging to
any former employer or any other person to whom I have an obligation of
confidentiality unless consented to in writing
<PAGE>
by that former employer or person. I will use in the performance of my duties
only information which is generally known and used by persons with training and
experience comparable to my own, which is common knowledge in the industry or
otherwise legally in the public domain, or which is otherwise provided or
developed by the Company.
2. ASSIGNMENT OF INVENTIONS.
2.1 Proprietary Rights. The term "Proprietary Rights" shall mean all trade
secret, patent, copyright, mask work and other intellectual property rights
throughout the world.
2.2 Prior Inventions. Inventions, if any, patented or unpatented, which I
made prior to the commencement of my employment with the Company are excluded
from the scope of this Agreement. To preclude any possible uncertainty, I have
set forth on Exhibit A (Previous Inventions) attached hereto a complete list of
all Inventions that I have, alone or jointly with others, conceived, developed
or reduced to practice or caused to be conceived, developed or reduced to
practice prior to the commencement of my employment with the Company, that I
consider to be my property or the property of third parties and that I wish to
have excluded from the scope of this Agreement (collectively referred to as
"Prior Inventions"). If disclosure of any such Prior Inventions would cause me
to violate any prior confidentiality agreement, I understand that I am not to
list such Prior Inventions in Exhibit A but am only to disclose a cursory name
for each such invention, a listing of the party(ies) to whom it belongs and the
fact that full disclosure as to such inventions has not been made for that
reason. A space is provided on Exhibit A for such purpose. If no such disclosure
is attached, I represent that there are no Prior Inventions. If, in the course
of my employment with the Company, I incorporate a Prior Invention into a
Company product, process or machine, the Company is hereby granted and shall
have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license
(with rights to sublicense through multiple tiers of sublicensees) to make, have
made, modify, use and sell such Prior Invention. Notwithstanding the foregoing,
I agree that I will not incorporate, or permit to be incorporated, Prior
Inventions in any Company Inventions without the Company's prior written
consent.
2.3 Assignment of Inventions. Subject to Sections 2.4 and 2.6, 1 hereby
assign and agree to assign in the future (when any such Inventions or
Proprietary Rights are first reduced to practice or first fixed in a tangible
medium, as applicable) to the Company all my right, title and interest in and to
any and all Inventions (and all Proprietary Rights with respect thereto) whether
or not patentable or registrable under copyright or similar statutes, made or
conceived or reduced to practice or learned by me, either alone or jointly with
others, during the period of my employment with the Company. Inventions assigned
to the Company, or to a third party as directed by the Company pursuant to this
Section 2, are hereinafter referred to as "Company Inventions."
2.4 Nonassignable Inventions. I recognize that, in the event of a
specifically applicable state law, regulation, rule, or public policy ("Specific
Inventions Law"), this Agreement will not be deemed to require assignment of any
invention which (1) qualifies fully for protection under a Specific Inventions
Law or, (2) by virtue of the fact that any such invention was, for example,
developed entirely on my own time without using the Company's equipment,
supplies, facilities, or trade secrets and neither related to the Company's
actual or anticipated business, research or development, nor resulted from work
performed by me for the Company.
2.5 Obligation to Keep Company Informed. During the period of my employment
and for six (6) months after termination of my employment with the Company, I
will promptly disclose to the Company fully and in writing all Inventions
authored, conceived or reduced to practice by me, either alone or jointly with
others. In
<PAGE>
addition, I will promptly disclose to the Company all patent applications filed
by me or on my behalf within a year after termination of employment. At the time
of each such disclosure, I will advise the Company in writing of any Inventions
that I believe fully qualify for protection under the provisions of a Specific
Inventions Law; and I will at that time provide to the Company in writing all
evidence necessary to substantiate that belief. The Company will keep in
confidence and will not use for any purpose or disclose to third parties without
my consent any confidential information disclosed in writing to the Company
pursuant to this Agreement relating to Inventions that qualify fully for
protection under a Specific Inventions Law. I will preserve the confidentiality
of any Invention that does not fully qualify for protection under a Specific
Inventions Law.
2.6 Government or Third Party. I also agree to assign all my right, title
and interest in and to any particular Invention to a third party, including
without limitation the United States, as directed by the Company.
2.7 Works for Hire. I acknowledge that all original works of authorship
which are made by me (solely or jointly with others) within the scope of my
employment and which are protectable by copyright are "works made for hire,"
pursuant to United States Copyright Act (17 U.S.C., Section 101).
2.8 Enforcement of Proprietary Rights. I will assist the Company in every
proper way to obtain, and from time to time enforce, United States and foreign
Proprietary Rights relating to Company Inventions in any and all countries. To
that end I will execute, verify and deliver such documents and perform such
other acts (including appearances as a witness) as the Company may reasonably
request for use in applying for, obtaining, perfecting, evidencing, sustaining
and enforcing such Proprietary Rights and the assignment thereof. In addition, I
will execute, verify and deliver assignments of such Proprietary Rights to the
Company or its designee. My obligation to assist the Company with respect to
Proprietary Rights relating to such Company Inventions in any and all countries
shall continue beyond the termination of my employment, but the Company shall
compensate me at a reasonable rate after my termination for the time actually
spent by me at the Company's request on such assistance.
In the event the Company is unable for any reason, after reasonable effort, to
secure my signature on any document needed in connection with the actions
specified in the preceding paragraph, I hereby irrevocably designate and appoint
the Company and its duly authorized officers and agents as my agent and attorney
in fact, which appointment is coupled with an interest, to act for and in my
behalf to execute, verify and file any such documents and to do all other
lawfully permitted acts to further the purposes of the preceding paragraph with
the same legal force and effect as if executed by me. I hereby waive and
quitclaim to the Company any and all claims, of any nature whatsoever, which I
now or may hereafter have for infringement of any Proprietary Rights assigned
hereunder to the Company.
3. RECORDS. I agree to keep and maintain adequate and current records (in
the form of notes, sketches, drawings and in any other form that may be required
by the Company) of all Proprietary Information developed by me and all
Inventions made by me during the period of my employment at the Company, which
records shall be available to and remain the sole property of the Company.
4. ADDITIONAL ACTIVITIES. I agree that during the period of my employment
by the Company and for one (1) year after the date of termination of my
employment by the Company I will not, without the Company's express written
consent, engage in any employment or business activity which is competitive
with, or would otherwise conflict with, my employment by the Company. I agree
further that for the period of my employment by the Company and for one (1) year
after the date of termination of my employment by the
<PAGE>
Company I will not (a) induce any employee of the Company to leave the employ of
the Company or (b) solicit the business of any client or customer of the Company
(other than on behalf of the Company). If any restriction set forth in this
Section is found by any court of competent jurisdiction to be unenforceable
because it extends for too long a period of time or over too great a range of
activities or in too broad a geographic area, it shall be interpreted to extend
only over the maximum period of time, range of activities or geographic area as
to which it may be enforceable.
5. NO CONFLICTING OBLIGATION. I represent that my performance of all of the
terms of this Agreement and as an employee of the Company does not and will not
breach any agreement to keep in confidence information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any agreement either written or oral in
conflict herewith.
6. RETURN OF COMPANY DOCUMENTS. When I leave the employ of the Company, I
will deliver to the Company any and all drawings, notes, memoranda,
specifications, devices, formulas and documents, together with all copies
thereof, and any other material containing or disclosing any Company Inventions,
Third Party Information or Proprietary Information of the Company. I further
agree that any property situated on the Company's premises and owned by the
Company, including disks and other storage media, filing cabinets or other work
areas, is subject to inspection by Company personnel at any time with or without
notice. Prior to leaving, I will cooperate with the Company in completing and
signing the Company's termination statement.
7. LEGAL AND EQUITABLE REMEDIES. Because my services are personal and
unique and because I may have access to and become acquainted with the
Proprietary Information of the Company, the Company shall have the right to
enforce this Agreement and any of its provisions by injunction, specific
performance or other equitable relief, without bond and without prejudice to any
other rights and remedies that the Company may have for a breach of this
Agreement.
8. NOTICES. Any notices required or permitted hereunder shall be given to
the appropriate party at the address specified below or at such other address as
the party shall specify in writing. Such notice shall be deemed given upon
personal delivery to the appropriate address or if sent by certified or
registered mail, three (3) days after the date of mailing.
9. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ of
the Company, I hereby consent to the notification of my new employer of my
rights and obligations under this Agreement.
10. GENERAL PROVISIONS.
10.1 Governing Law; Consent to Personal Jurisdiction. This Agreement will
be governed by and construed according to the laws of the State of Colorado, as
such laws are applied to agreements entered into and to be performed entirely
within Colorado between Colorado residents. I hereby expressly consent to the
personal jurisdiction of the state and federal courts located in Boulder County,
Colorado for any lawsuit filed there against me by the Company arising from or
related to this Agreement.
10.2 Severability. In case any one or more of the provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect the other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein. If moreover, any one or more of the provisions
contained in this Agreement shall for any reason be held to be excessively broad
as to duration, geographic scope, activity or subject, it shall be construed by
limiting and reducing it, so as to be enforceable to the extent
<PAGE>
compatible with the applicable law as it shall then appear.
10.3 Successors And Assigns. This Agreement will be binding upon my heirs,
executors, administrators and other legal representatives and will be for the
benefit of the Company to any successor in interest or other assigns.
10.4 Survival. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the Company
to any successor in interest or other assignee.
10.5 Employment. I agree and understand that nothing in this Agreement
shall confer any right with respect to continuation of employment by the
Company, nor shall it interfere in any way with my right or the Company's right
to terminate my employment at any time, with or without cause.
10.6 Waiver. No waiver by the Company of any breach of this Agreement shall
be a waiver of any preceding or succeeding breach. No waiver by the Company of
any right under this Agreement shall be construed as a waiver of any other
right. The Company shall not be required to give notice to enforce strict
adherence to all terms of this Agreement.
10.7 Entire Agreement. The obligations pursuant to Sections 1 and 2 of this
Agreement shall apply to any time during which I was previously employed, or am
in the future employed, by the Company as a consultant if no other agreement
governs nondisclosure and assignment of inventions during such period. This
Agreement is the final, complete and exclusive agreement of the parties with
respect to the subject matter hereof and supersedes and merges all prior
discussions between us. No modification of or amendment of this Agreement, nor
any waiver of any rights under this Agreement, will be effective unless in
writing and signed by the party to be charged. Any subsequent change or changes
in my duties, salary or compensation will not affect the validity or scope of
this Agreement.
This Agreement shall be effective as of the first day of my employment with the
Company, namely: June the 16th, 2000.
<PAGE>
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY FILLED OUT EXHIBIT A TO THIS AGREEMENT.
Dated: 16 June 2000
/s/ John Banker
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Signature
John Banker
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Printed Name
ACCEPTED AND AGREED TO:
DYNAMIC MATERIALS CORPORATION
By: /s/ Richard Santa
--------------------------
Richard Santa
-----------------------------
Printed Name
Title: Vice President, Finance & CFO
Dated:
-----------------------
EXHIBIT A
To: Dynamic Materials Corporation
From:
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Date:
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Re: Previous Inventions
1. Except as listed in Section 2 below, the following is a complete list of
all inventions or improvements relevant to the subject matter of my employment
by Dynamic Materials Corporation that have been made or conceived or first
reduced to practice by me alone or jointly with others prior to my engagement by
Dynamic Materials Corporation.
No inventions or improvements.
See below:
All active patents previously assigned to EFI/DMC
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Additional sheets attached.
2. Due to a prior confidentiality agreement, I cannot complete the
disclosure under Section 1 above with respect to inventions or improvements
generally listed below, the proprietary rights and duty of confidentiality with
respect to which I owe the following party(ies):
Invention or Improvement Party(ies) Relationship
1.
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2.
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3.
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