Exhibit 10.4


 


[The
side-by-side German language version of this agreement has been omitted.]


Managing Director’s Agreement


 


between


DYNAenergetics Beteiligungs-GmbH


Kaiserstraße 1, 53839 Troisdorf


- hereinafter referred to as the “Company” -


represented by the its advisory board 


and


Rolf Rospek


Plotenweg 3, 31234
Edemissen


- hereinafter also referred to as “Managing Director” -


 


Preamble


 


By
its resolution of July 23, 2001, the shareholders’ meeting appointed Mr. Rolf
Rospek as Managing Director (Geschäftsführer) of the Company. 


In
this capacity, the Managing Director also conducted management activities on
behalf of DYNAenergetics GmbH & Co KG (hereinafter “DYNA KG”)
which also acted as contractual party of the Managing Director’s Agreement as
of September 7, 2001 (hereinafter “Director’s Agreement”)
concluded with the Managing Director.


On
November 15, 2007, the Company became an indirect, wholly-owned subsidiary of


 


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Dynamic Materials
Corporation, a Delaware, USA, corporation (hereinafter “DMC”).


 


The
Director’s Agreement was terminated by means of the agreement attached as Exhibit 1 to this Agreement and shall now be mutually
replaced in its entirety by this Agreement and the following terms and conditions:


 


Section 1

Duties and Responsibilities


 


1.               The Managing Director shall perform his tasks with the diligence of a
prudent businessman in compliance with applicable law, the provisions of the
Articles of Association of the Company in their currently valid version, this
Agreement, any by-laws applying to the management in their currently valid
version and the instructions of the general shareholders. His tasks may
be changed from time to time by a shareholder’s resolution. 


2.               The duties of the Managing Director consist of the management of the business
of the Company. This includes all activities required with regard to the integration
process of the Company into the DMC Group.


 


3.               The Company shall be jointly represented by two managing directors or one
managing director jointly with a holder of procura (Prokurist). By
shareholder’s resolution one of several Managing Directors can be entitled to
represent the Company acting alone and a Managing Director can be exempted from
the restrictions contained in Section 181 of the German Civil Code. However, if
only one Managing Directors has been appointed, this Managing Director shall
represent the Company acting alone.


4.               The Managing Director, upon demand by the Company, shall also act in
single cases on behalf of other affiliated companies of the Company according
to Sec. 15 of the German Stock Companies Act (“Aktiengesetz”)
(including other corporations of DMC). Such tasks will be deemed encompassed by
the remuneration pursuant to Section 3.For the avoidance of doubt, during the
term of this Agreement, the Managing Director shall act primarily on behalf of
the Company and  of DYNA KG and in its
Companies’ core businesses.


 


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Section 2

Place of Office


 


Parties agree that the place of office of the Managing Director will be
the area of Hannover, Germany. Such place of office shall not be moved by the
Company on a permanent basis without the Managing Director’s consent. However,
Parties agree that business trips within the country and abroad are part of the
Managing Director’s obligations under this Agreement. The duration and
destination of such work/business trips are determined by the requirements in
the individual case.


 


Section 3

Remuneration / Expenses


 


1.               The Managing Director shall
receive a fixed yearly remuneration at the amount of EUR 169,542.96 gross that
will be paid in twelve equal installments to be paid on the final day of each
month excluding the deductions as required by law. In the instance that the
yearly remuneration pursuant to clause 1 is not subject to social insurance
contributions, the Company shall pay to the Managing Director until the
applicable assessment basis (Bemessungsgrundlage)
an amount twice as much as the employer’s contribution (Arbeitgeberanteil)
fictitiously incurring with regard to this partial amount as to the contributions
to annuity insurance, health insurance and nursing insurance. 


2.               All services rendered by the
Managing Director under this Agreement, including any services performed
outside of normal working hours and on weekends or holidays, and any services rendered to affiliates of the Company
shall be deemed to have been compensated in full by the compensation
provided in Section 3 paragraph 1.


3.               The fixed yearly remuneration
according to paragraph 1 shall be reduced or increased to the same percent
ratio in which the remuneration of a commercial clerk (kaufmännischer
Angestellter) of the highest wage group of the tariff group
Chemistry is being adjusted. Assessment basis for such changes shall always be
the last base salary according to paragraph 1. If the relevant collective labor
agreement (Tarifvertrag) provides for changes in
lump sums, the base salary shall be increased


 


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by
the same amounts.


4.               In addition, the Managing Director shall receive an additional
success-related bonus per business year according to targets to be separately
agreed by and between the Company and the Managing Director, at least in the
amount of EUR 42,400.00. The bonus shall be reduced or increased to the same
percent ration that the amount according to paragraph 3 is altered.


5.               The Company shall also render payments to the existing company pension
scheme on behalf of the Managing Director. 


Subject to deviating provisions within the
pension plan and upon the Managing Director’s discretion, the Company shall
take out a direct insurance (Direktversicherung) on behalf of the Managing Director
instead of such contributions under clause 1 to an annual premium at the amount
of the maximum rates legally permissible. 


In the instance that the amount of the maximum
rates legally permissible for indirect insurances will be increased, the
Managing Director can demand of the Company an increase of the direct insurance
taken out according to clause 1 or that another direct insurance will be taken
out with an insured sum in the amount of the one that was increased, each
without an impact as to the fixed yearly renumeration according to paragraph 1.


The Managing Director shall be irrevocably
named the beneficiary of the direct insurances. 


If the Managing Director leaves the Company, he
shall be entitled to take over and carry on all direct insurances taken out on
his behalf at his own expense. The Company has no obligation to continue any
payment for such direct insurances as from the termination of this Agreement. 


6.               The Company will also include the Managing Director into the company accident
insurance that contains the following insurance benefits:


Euro 250.000,00             in case of death.


Euro 500.000,00             in case of invalidity,


and into a “D & O-insurance” having a
coverage of at least EUR 7.5 Mio. And a validity for at least 5 years after
termination of this agreement or removal as managing director.


 


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7.               In accordance with Company’s and DYNAenergetics GmbH
& Co KG’s written policies and applicable German tax regulations, Company
shall reimburse the Managing Director for all appropriate expenses and outlays
associated with his job. While taking the train, the Managing Director is
entitled to travel first class; if he travels by plane, he may travel via
Business Class.


 


8.               Company also pays to Managing Director the expenses incurring from an already
existing private life-insurance with Allianz Lebensversicherungs-AG at the
yearly amount of 56,169.00 gross. 


Section 4

Benefits


 


The Company agrees to provide the Managing
Director with a company car for business and private purposes.. The monthly
leasing rates shall not exceed an amount of a maximum of EUR 1,020.00 net. All
taxes incurring due to the use of the company car for private purposes shall be
borne by the Managing Director on his own. 



Section 5

Assignment


 


1.               Any claims by the Managing Director against the Company for payment of
salary, bonuses or other compensation, contribution, benefit, etc. may not be
pledged or assigned without the previous written consent of the Company. 


2.               The assertion of any right of retention, right to refuse performance or
set-off of claims with regard to any Company’s claim shall be excluded as far
as permitted by applicable law.


 


Section 6

Vacation


 


1.               The Managing Director shall
be entitled to an annual vacation of 30 working days. Working days means all
calendar days other than Saturdays, Sundays and legal holidays in Germany. If
annual vacation was not fully taken by Managing Director


 


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prior
to March 31 of the subsequent calendar year due to opposing Company interests,
such vacation not taken shall lapse without the Managing Director being
entitled to compensation in return. 


 


2.               The Managing Director shall
coordinate the dates of his vacation with other Managing Directors (if any) on
an appropriately timely basis. Any grounds for pressing business shall take
priority. 


 


Section 7

Unavailability and

Continued Payment of Compensation in the Event of Illness


 


1.               If the Managing Director cannot perform the duties arising out of this
Agreement due to illness or otherwise being indisposed, he shall promptly
inform the Company of the expected duration of his unavailability.  The Managing Director shall also inform the
Company of any business urgently in need of attention.


2.               In the event of an inability to work due to illness, the Managing
Director is required to submit a doctor’s excuse prior to the expiration of the
third calendar day following the commencement and expected duration of the
inability to work.  In the event of an
illness extending beyond the period specified in the excuse, a subsequent
excuse must be submitted within two days of the expiration of this period. 


3.               Other than in the event of being disabled to work (Berufs-/Erwerbs­unfähigkeit),
the Managing Director shall continue to receive the fixed salary provided under
Section 3 paragraph 1 of this Agreement for the duration of his
inability to work due to any illness for which he is not at fault for a period
of up to a maximum of 6 months in each individual case. Any sickness allowances
granted to Managing Director during this time shall be deducted from the remuneration
payment.


4.               The Managing Director hereby assigns to the Company all claims against
third parties caused in connection with the reasons for his inability to work
in an amount corresponding to the compensation of the Managing Director for the
duration of his inability to work.  The
Managing Director is required to forward to the Company all information
required to enforce these claims.  


5.               In the instance of the Managing Director’s death occurring during the
term of this Agreement, the fixed remuneration according to Section 3 paragraph
1 and the bonus according to Section 3 paragraph 4 shall be paid for three
calendar months following the death of the Managing Director to his wife or to
his children, provided


 


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they are still minors and received child
support from the Managing at this time pro rata temporis. The surviving
dependants shall not be entitled to receive any further payments from the
Company due to the Managing Director’s existing pension scheme during this
time.


 


Upon expiry of the third full calendar month
after the Managing Director’s death, there is no further entitlement to the
fixed remuneration according to Section 3 paragraph 1 and the bonus according
to Section 3 paragraph 4.


 


Section 8

Ancillary activities


 


1.               The Managing Director shall devote all of business time exclusively to the
Company and its affiliates.  He is
required to make his best effort to support and promote the entire business of
the Company. 


2.               The assumption of any ancillary activities, be they compensated or uncompensated,
requires the previous written consent of the Company. The same shall also apply
to the assumption of any honorary posts in private clubs, organizations or
federations.


3.               Publications and addresses given by the Managing Director also
require the previous written consent of the Company if interests or the
reputation of the Company are affected thereby.


4.               The Company (represented by its shareholders) shall deny its consent only
if there is reason to suspect that the proposed activity would interfere with
legitimate interests of the Company or the fulfillment of the contractual duties
of the Managing Director. This consent is revocable at any time, provided the
revocation is not unreasonable.


 


Section 9

Non-Competition


 


1.               The Managing Director may
not work, as an employee, independently on a free-lance basis or in any other
way, for third parties that are direct or indirect competitors of the Company
or DYNA KG, or third parties affiliated with such competitors, during the term
and for a period of 2 years after termination of this Agreement.


 


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Furthermore,
the Managing Director may not set up, buy or directly or indirectly hold shares
in any such company for the time of the ban according to sentence 1. As to the
scope of application of this non-competition clause pursuant to this Section 9
regarding contents and territory, the non-competition clause according to the
Section 11 of the Purchase, Sale and
Assignment Agreement concluded today between, among others, the Managing
Director and Dynamic Materials Corporation shall apply mutatis
mutandis. The acquisition of less than 5 % of the share
capital in a publicly traded stock corporation acquired for investment purposes
are excluded from this prohibition of competition. This non-competition clause
also applies for the benefit of companies affiliated with the Company or DYNA
KG. Further, this non-competition clause applies to the advantage of and
against any legal successor of Company and DYNA KG.  


 


2.               During the term and for two
years after the termination of this Agreement, the Managing Director is
prohibited from soliciting or accepting work, if DYNA KG’s area of operation is
affected, from any customer of the Company or DYNA KG, which has been a
customer of the Company within the two years prior to termination of this
agreement or which was a prospective customer of the Company or DYNA KG within
12 months prior to the termination of this agreement. The solicitation ban also
applies for the benefit of companies affiliated with the Company or DYNA KG
according to Section 15 of the German Stock Companies Act (Aktiengesetz)
(collectively also referred to as the “DYNA Group Companies”) concerning the business activities of
the Company, DYNA KG and their subsidiaries.


3.               For the duration of the
post-contractual prohibition of competition, the Company undertakes to pay the
Managing Director, for each year of non-competition, compensation in the amount
of one half of the fixed yearly remuneration according to Section 3 paragraph 1
last paid to Managing Director. Payment of the compensation is due in 12
monthly instalments at the end of the month.


4.               Any income earned by the Managing Director, or any income he consciously
refrains from earning, during the post-contractual prohibition of competition,
either as a self-employed person, as an employed person, or through any other
form of work, will be deducted from the compensation pursuant to paragraph 3 if
the compensation, taken together with the income earned, would exceed the fixed
yearly remuneration according to Section 3 parapgraph 1 last received. Income
also includes any unemployment benefits received by the Managing Director. The
Managing Director is obliged to provide the company, upon its request, with
information concerning the extent of his income.


5.               The Company (represented by the shareholders) may notify the Managing
Director


 


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in writing at any time during the term of this
Agreement until the time when the termination notice is submitted by the
Company or, in case of a termination of this Agreement by the Managing
Director, within ten calendar days after receipt by the Company of the
termination notice, that the non-compete or the non-solicitation obligation is
waived. The post-contractual prohibition of competition does not come into
effect if the employment relationship ends because the Managing Director
retires, either early or definitively. 


 


6.               In every case of infringement of the non-competition obligation under
paragraph 1 and/or the non-solicitation obligation under paragraph 2 by the
Managing Director, the Managing Director shall pay a contractual penalty in the
amount of EUR 100,000.00. In
case of a long-term infringement such penalty shall be payable by the Managing
Director for each calendar month during which infringement has occurred. Any
claims for further damages shall not be affected hereby.


7.               Parties agree that acting as
a director of Dynamic Materials Corporation would not be deemed a breach of
this Section 9. 


 


Section 10

Solicitation of Employees


 


1.               During the employment and for a period of two years after the
termination of this agreement, the Managing Director is prohibited from
soliciting or participating in the soliciting of employees of the DYNA Group
Companies, encouraging of such employees to leave the employ with the
respective DYNA Group Company and any hiring or other contracting with such
employees outside of his duties for the respective DYNA Group Company for the
benefit of third employers. 


2.               In every case of infringement of this non-solicitation obligation by the
Managing Director, the Managing Director shall pay a contractual penalty in the
amount of EUR 100,000.  


 


Section 11

Confidentiality / Return of Company Property


 


1.               The Managing
Director shall, during the period of employment with the Company


 


 


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and
at any time thereafter, keep secret any confidential information concerning the
business, contractual arrangements, transactions or specific affairs of the
Company or its affiliates and he will not use any such information for his own
benefit or for the benefit of others.  Such confidential information specifically includes,
but is not limited to, Company’s (or its affiliates’) intellectual property,
clientele, price lists, pricing methods, names of employees, salary data,
procedural/tactical approaches to areas of the business, strategic business
decisions, and any other matters which may be considered confidential or
proprietary to the Company.


 


2.               In every case of
infringement of this obligation of secrecy the Managing Director shall pay to
the Company a contractual penalty in the amount of EUR 50,000.00.  Any
claims for further damages shall not be affected hereby.


3.               During the term of this
Agreement upon request and at the end of the term of this Agreement without
request, the Managing Director shall return to the Company all Company property
and any documentation in his possession which relates to the Company or to its
affiliates, in particular all notes, memoranda, drawings, protocols, reports,
files and other similar documentation (as well as copies or other reproductions
thereof).  Accordingly, the same applies
to non-tangible information and material, for example computer programs or data
stored on discs or the like.


4.               The Managing Director
recognizes that the documentation referred to above is the sole property of the
Company or its affiliates. The Managing Director has no right of retention with
respect thereto.


 


Section 12

Copyrights and other Intellectual Property Rights


 


1.               For all inventions of the managing director the “Employee inventions
act” and the directives to that act in the relevant version apply.


2.               The claims and rights of the managing director resulting from inventions
during the former managing director’s agreement remain in effect. 


 


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Section 13

Duration


 


1.               This Agreement is in effect as of 01. October 2007 and shall have a
fixed term of 3 years.  


2.               After the expiry of the
fixed term under paragraph 1 this Agreement stays valid without any term and
can be terminated by either party in observance of a notice period of 6 months
as of the end any calendar year (ordentliche Kündigung).
The right of the parties to terminate this Agreement for important reasons (aus wichtigem Grund) without notice shall
thereby remain unaffected.  In particular,
such important reasons for the Company exist, if the managing director breaches
his contractual or his compulsory legal obligations. Any notice of termination
must be in writing.


3.               The Company is entitled to
exempt the Managing Director during the term of the Agreement, while continuing
to be paid the fixed salary under Section 3 paragraph 1 of this Agreement but
offsetting the annual vacation, from continuing to engage in his activities for
the Company, in particular in the event that his appointment as Managing Director
is revoked or this Agreement is terminated.


 


Section 14

Time-barring


 


1.               All claims by one party
arising out of the Managing Director’s Agreement or any associated with the
Managing Director’s Agreement, shall be time-barred if they are not asserted against
the other party in writing within three months of falling due.


2.               If the other party refuses
to recognize the claim or does not speak out within 2 weeks of asserting the
claim, it shall become time-barred if not asserted in court within three months
of being refused or the expiration of the deadline. 


 


Section 15

Miscellaneous


 


1.               No oral agreements have been
made. Any changes or supplements to this Agreement - also in regard to this
clause - must be made in writing to be effective.


2.               Should any of the provisions
of this Agreement be or become invalid or impracticable


 


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in
part or in full, this shall not affect the legal validity of the remaining
provisions. In such a case, the invalid or impracticable provision shall be
replaced by a valid and practicable provision corresponding economically as
closely as possible to the purpose of the valid or impracticable provision.
This shall also apply to any lacunae in this Agreement. 


 


3.               This Agreement is governed
by German law.  The location of the
registered office of the Company shall be the exclusive place of jurisdiction
for any disputes arising in connection with the implementation of this
Agreement.  


4.               If not already provided for,
any and all earlier service and/or employment contracts between the Managing
Director and the Company, in particular the Director’s Agreement shall be
explicitly rescinded by mutual agreement on the signing of this Agreement.  Besides, the Managing Director declares that
he has repaid all loans, overpaid advances or comparable payments the Company
or its affiliates had granted him until the date thereof and that he has also
satisfied all other claims the Company or its subsidiaries had against him.


5.               The Agreement is executed in
both a German and an English version. In case of discrepancies or
contradictions between the German and English versions, the German version
shall prevail.


6.               The contractual parties
acknowledge having received a written copy of this Agreement.


 


15, November 2007




	
  /s/ Rolf Rospek

  
	
   

  
	
  Rolf Rospek

  
	
   

  
	
  DYNAenergetics
  Beteiligungs-GmbH

  
	
   

  
	
  By: /s/ Rolf Rospek

  
	
   

  
	
  Rolf Rospek

  
	
   

  
	
  By: /s/ Patrick Xylander

  
	
   

  
	
  Patrick Xylander

  
	
   

  
	
  By: /s/ Uwe Gussel

  
	
   

  
	
  Uwe Gussel 

  






 


 


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Exhibit 1 to Managing Director’s Agreement


 


Agreement


by
and among


1.                                      DYNAenergetics
GmbH & Co KG, Kaiserstraße 1, 53839 Troisdorf


- hereinafter referred to as
„DYNA KG” -,


and


2.                                      DYNAenergetics
Beteiligungs-GmbH, Kaiserstraße 1, 53839 Troisdorf


- hereinafter referred to as
„DYNA GmbH” -,


and


3.                                      Rolf Rospek,
Plotenweg 3, 31234 Edemissen


- hereinafter referred to as
„Managing Director” -,


 


- DYNA KG, DYNA GmbH and
Managing Director hereinafter also jointly referred to as the “Parties” -


Preamble


DYNA KG and Managing
Director concluded a Managing Director’s Agreement (“Geschäftsführer-Vertrag”)
dated as of September 7, 2001 (hereinafter referred to as “MD
Agreement”).


Shareholders of DYNA GmbH
(as shareholder of DYNA KG) explicitly consented to the conclusion of the MD
Agreement in the MD Agreement.


On
November 15, 2007, DYNA GmbH and DYNA KG became indirect, wholly-owned
subsidiaries of Dynamic Materials Corporation, a Delaware, USA, corporation
(hereinafter “DMC”).


With regard to this
transaction, Parties desire to terminate the MD Agreement and to fully replace
it by a different managing director’s agreement.


NOW THEREFORE, in
consideration of their mutual obligations, the Parties agree as follows:


 


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Sec. 1

Termination of the MD Agreement


 


The Parties hereby agree that the MD Agreement is hereby consensually terminated
and will be replaced by an agreement between DYNA GmbH and the Managing
Director.


Sec.
2

Final Provisions


1.                                      Parties
agree that by means of this Agreement all matters between the Parties and all
claims against each other are finally settled. It is understood and
agreed that this Agreement constitutes a full accord and satisfaction of any
and all claims either Party may have had, or claimed to have had, against the
other and/or its predecessors or affiliates, arising out of or relating to any
prior agreements except for the claims on a bonus and on payment of VAT
resulting from the MD Agreement as of 30 September 2007.


2.                                      In case single
provisions of this Agreement are or prove to be invalid or not enforceable or
in case this agreement should contain gaps, the binding force and effectiveness
of the other provisions of this Agreement shall remain unaffected. The invalid
or unenforceable provision shall be replaced by such provision(s) which the
Parties would have foreseeably agreed upon had they had knowledge of the
invalidity, unenforceability or the gap as of the time of the signing of this
agreement. Should a provision be or prove to be invalid for the stipulated
extent and scope of the respective obligation contained therein, the scope and
extent of such obligation shall be adjusted to match the legally admissible
extent and scope of obligation.


3.                                      Amendments or
modifications to this agreement require written form to be effective. The same
shall apply to a modification or abrogation of this written form requirement.


4.                                      This agreement
shall be governed by the laws of the Federal Republic of Germany save for its
conflict of laws provision and the Convention on the International Sale of
Goods (CISG).


	
                  ,
  the                 

  



  	
                    ,
  the                  

  
	
                                                                               

  DYNAenergetics
  GmbH & Co KG

  	
                                                                          

  DYNAenergetics
  Beteiligungs-GmbH



  
	
                  ,
  the               

  	 

	
                                 

  Rolf Rospek

  	 




 


 


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