Exhibit 10.1
SEVERANCE AGREEMENT
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THIS SEVERANCE AGREEMENT (the "Agreement") is entered into as of this
11th day of April 2003, between NexGen Vision, Inc., a Delaware corporation (the
"Company") and Xxxxxxx Xxxxxxxxxx (the "Employee").
WHEREAS, in its business, the Company has acquired and developed
certain trade secrets, including but not limited to proprietary processes of
manufacturing, design information and drawings, sales methods and techniques,
and other like confidential business and technical information including but not
limited to engineering or technical information, design systems, pricing
methods, pricing rates or discounts, process, procedure, formula, design of
computer software, or improvement, or any portion or phase thereof, whether
patented or unpatentable, that is of any value whatsoever to the Company, as
well as certain unpatented information relating to the manufacture or servicing
of the Company's products, information concerning proposed new products, market
feasibility studies, proposed or existing marketing techniques or plans (whether
developed or produced by the Company or by any other entity for the Company),
and (ii) confidential business information, i.e., any data or information other
than trade secrets that is of any value or significance to the Company and is
not generally known to competitors of the Company nor intended by the Company
for general dissemination, including but not limited to future company business
plans, project files, design systems, lists of the Company' current or potential
customers, current or potential vendors, prospective leads or target accounts,
the identity of various suppliers/vendors of products and services, pricing
schedules, pricing methods, information about the purchasing preferences and
practices of customers, information as to the profitability of specific sales
and/or specific products, and information about the Company' executives,
officers, and directors, which necessarily will be communicated to the Employee
by reason of his employment by the Company;
WHEREAS, the Company has strong and legitimate business interests in
preserving and protecting its investment in its trade secrets and confidential
business information, and its substantial relationships with vendors, existing
customers, and prospective customers; and
WHEREAS, the Company desires to preserve and protect its legitimate
business interests further by restricting competitive activities of the Employee
during the Term, as defined in this Agreement, and following (for a reasonable
time) termination of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth in this Agreement, and intending to be legally bound, the
Company and the Employee agree as follows:
1. REPRESENTATION AND WARRANTY OF THE EMPLOYEE. The Employee hereby represents
and warrants to the Company that he does not possess any Confidential
Information, as defined in this Agreement, in written, electronic or other
format.
2. RESIGNATION, TERM, SEVERANCE PAYMENTS, ETC.
(a) Resignation. Concurrent with execution hereof by the parties, the
Employee resigns as an officer, director and employee of the Company and any of
its subsidiaries. The Employee acknowledges and agrees with the Company that as
a result of his resignation as a director, the Company is not obligated to file
a Form 8-K with the Securities and Exchange Commission.
(b) Severance Payments. Through March 31, 2004 (the "Term"), the
Company shall continue to pay the Employee all of the compensation and benefits
contained in the Employment Agreement between the Company and the Employee dated
November 6, 2001 (the "Employment Agreement") as if the Employee were still an
employee (the "Severance Payments"). All payments shall be made as provided in
the Employment Agreement. The Employee shall have no right or obligation to
perform any services, and the payments shall be considered severance payments.
(c) Filing suit. If during the Term, the Employee files or encourages,
induces, or causes anyone else to file a lawsuit against the Company or any of
its officers or directors, for any reason other than (i) to enforce this
Agreement, or (ii) under or to enforce the Stockholders' Voting Agreement dated
April 11, 2003, among the Employee, Xxxx Xxxxxxxx and Xxxxxxx Xxxxxxxxxx (the
"Stockholders' Voting Agreement") then the obligation to pay Severance Payments
shall cease and no further Severance Payments shall be due.
(d) Termination of the Employment Agreement. Except as provided in this
Agreement, the Employment Agreement is terminated and null and void and no party
shall have any rights or liabilities under the Employment Agreement.
(e) Continuing Effect. Notwithstanding any termination of this
Agreement at the end of the Term or otherwise, the provisions of Sections 3
through 10 of this Agreement shall remain in full force and effect.
(f) Trading on Inside Information. The Employee acknowledges that he
has in the past had access to information concerning the Company's business and
financial condition that is material and not public. Accordingly, the Employee
agrees to not purchase or sell any of the Company's capital stock on the basis
of such material non-public information through the filing of the Company's Form
10-QSB for the quarter ended March 31, 2003 (or such earlier date as approved by
Xxxxxxx X.Xxxxxx, Esq. of West Palm Beach, Florida) . After the filing of the
Form 10-QSB, the Company agrees that the Employee shall not have access to any
material, non-public information, and he shall not be subject to the Company's
pre-clearance procedures. The parties agree that during the Term and Restrictive
Period as defined in this Agreement, such securities counsel of the Company is
and will continue to be Xxxxxxx X. Xxxxxx, Esq
3. COMMUNICATIONS; DISPARAGEMENT. From the date of this Agreement through the
expiration of two years from the last severance payment required to be made for
in Section 2(b) (the "Restrictive Period"), neither party shall communicate with
anyone concerning the other or their respective officers, directors, employees,
, commercial bankers, representatives or successors in any negative or
disparaging manner or with respect to material non-public information., except
with Messrs. Xxxx Xxxxxxxx and Xxxxxxx X. Xxxxxx on behalf of the Company, and
any lawyer representing the Employee on behalf of him. Provided, however, the
Employee may engage in personal communications with his son, Xxxxxxx Xxxxxxxxxx
which do not relate to the Company and he may have communications with third
parties concerning Xxxxxxx Xxxxxxxxxx in any capacity outside of Xxxxxxx
Xxxxxxxxxx'x relationship with the Company.
4. NON-COMPETITION AGREEMENT.
(a) Competition with the Company. During the Restrictive Period, the
Employee, directly or indirectly or, in association with or as a stockholder,
director, officer, consultant, employee, partner, joint venturer, member or
otherwise of or through any person, firm, corporation, partnership, association
or other entity (any of the foregoing defined as an "Affiliated Entity") shall
not manufacture, market or sell ophthalmic lens casting machines, ophthalmic
lenses or any components or supplies used in the manufacture of ophthalmic
lenses (collectively the "Products") within the United States or Australia.
Provided, however, the foregoing provisions shall not prevent the Employee from
accepting employment with an enterprise engaged in two or more lines of
business, one of which is the same or similar to the Company's business (the
"Prohibited Business") if the Employee's employment is totally unrelated to the
Prohibited Business; provided, further, the foregoing shall not prohibit
Employee from owning up to 5% of the securities of any publicly-traded
enterprise engaged in the Prohibited Business provided the Employee is not an
employee, director, officer, consultant to such enterprise or otherwise
reimbursed for services rendered to such enterprise. In addition, the Employee
may not, directly or indirectly including through any Affiliated Entity, obtain
employment with or perform services for any Customer, as defined, of the Company
during the Restrictive Period.
(b) Solicitation of Customers. During the Restrictive Period, the
Employee, directly or indirectly including through any Affiliated Entity, shall
not seek Prohibited Business from any Customer (as defined below) on behalf of
any enterprise or business other than the Company, refer Prohibited Business
from any Customer to any enterprise or business other than the Company or
receive commissions based on sales or otherwise relating to the Prohibited
Business from any Customer, or any enterprise or business other than the Company
.. For purposes of this Agreement, the term "Customer" means any person, firm,
corporation, partnership, association or other entity to which the Company sold
or provided goods or services during the 24-month period prior to the time at
which any determination is required to be made as to whether any such person,
firm, corporation, partnership, association or other entity is a Customer, or
who or which has been approached by or who or which has approached an employee
of the Company for the purpose of soliciting business from the Company or the
third party, as the case may be.
(c) Solicitation of Employees. During the Restrictive Period, the
Employee, directly or indirectly including through any Affiliated Entity shall
not solicit, hire or contact any employee of the Company for the purpose of
hiring them or causing them to terminate their employment relationship with the
Company.
(d) No Payment. The Employee acknowledges and agrees that no separate
or additional payment will be required to be made to him in consideration of his
undertakings in this Section 4.
(e) References to the Company in this Section 4 shall include the
Company's Affiliates. For purposes of this Agreement, the word "Affiliates"
shall include all persons or entities controlled by or under common control with
the Company or the Employee, as the case may be.
5. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
(a) Confidential Information. Confidential Information includes, but is
not limited to, trade secrets (as defined by the common law and statute in
Georgia or Delaware or any future Georgia or Delaware statute), processes,
policies, procedures, techniques including recruiting techniques, designs,
drawings, know-how, show-how, technical information, specifications, computer
software and source code, information and data relating to the development,
research, testing, costs, marketing and uses of the Products, the Company's
budgets and strategic plans, and the identity and special needs of Customers,
databases, data, all technology relating to the Company's business, systems,
methods of operation, Customer lists, Customer information, solicitation leads,
marketing and advertising materials, methods and manuals and forms, all of which
pertain to the activities or operations of the Company, names, home addresses
and all telephone numbers and e-mail addresses of the Company's employees,
former employees, clients and former clients. In addition, Confidential
Information also includes the identity of Customers and the identity of and
telephone numbers, e-mail addresses and other addresses of employees or agents
of Customers who are the persons with whom the Company's employees and agents
communicate in the ordinary course of business. For purposes of this Agreement,
the following will not constitute Confidential Information (i) information which
is or subsequently becomes generally available to the public through no act of
the Employee, (ii) information set forth in the written records of the Employee
prior to disclosure to the Employee by or on behalf of the Company which
information is given to the Company in writing as of or prior to the date of
this Agreement, and (iii) information which is lawfully obtained by the Employee
in writing from a third party (excluding any Affiliates of the Employee) who did
not acquire such confidential information or trade secret, directly or
indirectly, from the Employee or the Company.
(b) Legitimate Business Interests. The Employee recognizes that the
Company has legitimate business interests to protect and as a consequence, the
Employee agrees to the restrictions contained in this Agreement because they
further the Company's legitimate business interests. These legitimate business
interests include, but are not limited to (i) trade secrets; (ii) valuable
confidential business or professional information that otherwise does not
qualify as trade secrets including all Confidential Information; (iii)
substantial relationships with specific prospective or existing Customers; (iv)
Customer goodwill associated with the Company's business; and (v) specialized
training relating to the Company's Products, technology, methods and procedures.
(c) Confidentiality. During the Restrictive Period or as otherwise
required by any more liberal confidentiality agreement of the Company, the
Confidential Information shall be held by the Employee in the strictest
confidence and shall not, without the prior written consent of the Company, be
disclosed to any person other than in connection with the Employee's employment
by the Company. The Employee further acknowledges that such Confidential
Information as is acquired and used by the Company is a special, valuable and
unique asset. The Employee shall exercise all due diligence precautions to
protect the integrity of the Company's Confidential Information and to keep it
confidential whether it is in written form, on electronic media or oral. All
records, files, materials and other Confidential Information obtained by the
Employee in the course of his employment with the Company are confidential and
proprietary and shall remain the exclusive property of the Company or its
Customers, as the case may be. The Employee shall not for any reason use for his
own benefit or the benefit of any person or entity with which he may be
associated or disclose any such Confidential Information to any person, firm,
corporation, association or other entity for any reason or purpose.
(d) References to the Company in this Section 5 shall include the
Company's Affiliates.
6. EQUITABLE RELIEF.
(a) The Company and the Employee recognize that the relationship
between them previously was of a special, unique and of extraordinary character,
that the severance payments required by Section 2(b) provide the Employee with a
benefit to which he is not entitled and that in the event of the breach by
either of them of the terms and conditions of this Agreement or if the Employee
for any reason takes any action in violation of Sections 3, 4 and/or Section 5,
or if the Company for any reason takes any action in violation of Section 3, the
aggrieved party, shall be entitled to institute and prosecute proceedings in any
court of competent jurisdiction referred to in Section 6(b) below, to enjoin the
other party from breaching the provisions of Sections 3, 4 or 5, as the case may
be. In such action, the aggrieved party shall not be required to plead or prove
irreparable harm or lack of an adequate remedy at law or post a bond or any
security.
(b) Any action must be commenced in Xxxxxx County, Georgia where the
Company's principal offices will be located and where the Company will pay the
Employee the compensation hereunder. The Employee irrevocably and
unconditionally submits to the exclusive jurisdiction of such courts and agrees
to take any and all future action necessary to submit to the jurisdiction of
such courts. The Employee irrevocably waives any objection that he now has or
may have hereafter to the laying of venue of any suit, action or proceeding
brought in any such court and further irrevocably waives any claim that any such
suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. Final judgment without further right of appeal against the
Employee in any such suit shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment, a certified or true copy of which shall
be conclusive evidence of the fact and the amount of any liability of the
Employee therein described, or by appropriate proceedings under any applicable
treaty or otherwise.
7. RIGHT OF FIRST PURCHASE. For a period of one year from the date beginning
April 11, 2003, the Employee shall not offer or sell any Class A or B Common
Stock (the "Securities") of the Company unless he first offers the Securities to
Jesup & Xxxxxx Securities Corp., a market maker in the Securities, or if that
firm is no longer a market maker in the Securities or engaged in the securities
business, then another broker-dealer, which is a market maker, selected by the
Company (any a "Broker"). The Broker shall have the right to purchase for its
account all or part of the Securities offered which Securities shall be
purchased directly from another broker-dealer. On any day when the Nasdaq Stock
Market is open for business the Employee or his agent shall give written notice
to the Broker of his intent to publicly offer for sale any Securities. The
written notice shall be in the manner and to the e-mail address or fax number
specified by the Broker in writing to the Employee (which notice may be later
changed) at the address provided in this Agreement. Assuming that the Broker
thereupon agrees upon receipt of the notice by it (not counting weekends or
other days when the New York Stock Exchange is not open for trading), the
Employee shall sell the number of Securities specified by the Broker up to the
amount specified in the notice through or to the Broker at the price which
represents the last best bid price reported by the principal market for the
Securities immediately prior to the time of the notice (the "Net Price"). If the
Broker does not do so, then the Broker shall have no rights to purchase for its
account the Securities covered by the notice and the Employee shall be free to
publicly offer and sell such Securities elsewhere during the succeeding five
trading days (not counting weekends or other days when the New York Stock
Exchange is not open for trading). The failure of the Broker on one or more
occasions to purchase the Securities shall not be construed as a waiver.
8. DELIVERY OF SECURITIES AND RELEASE. The Company has delivered to Xxxxxxx
Xxxxxx, P.A. a certificate representing 1,806,250 shares of Class B Common Stock
held by ARB Investment Enterprises, Ltd. ("ARB"), a limited partnership
controlled by the Employee (the "Certificates"). Upon execution of this
Agreement by all parties, Xxxxxxx Xxxxxx, P.A. shall deliver the Certificates to
the Employee, together with the written release of ARB, its corporate general
partner and its current and past officers and directors, and ARB's current and
past partners or successors, from the "Lenders" as defined in and under that
certain Pledge Agreement dated September 6, 2002, by and between ARB and such
Lenders substantially in the form annexed as Exhibit A.
9. LOCK-UP. During the period beginning on the date of this Agreement and ending
on the earlier of (i) the sale by the Company of $15 million in securities or
(ii) July 15, 2003, the Employee shall not sell any Securities of the Company,
except that the Employee may publicly sell 10,000 shares of Company Common Stock
during each calendar week, subject to the restrictions and requirements of Rule
144.
10. DILUTION.
Until the end of the Restrictive Period the Company agrees that, except by
affirmative vote of the requisite number of shares of its capital stock under
Delaware law, it will not issue any additional shares or take any corporate
action the result of which would cause it to receive or it to issue any shares
at less than $1.50 per share, subject to adjustment as provided in the
Stockholders' Voting Agreement.
11. RELEASES. The Company, its officers, and Jesup & Xxxxxx Securities Corp. and
its officers shall execute a general release releasing the Employee from any and
all liabilities that may have arisen through the date of this Agreement. The
Employee shall execute a general release releasing the Company, its Affiliates,
its employees, its counsel and Jesup & Xxxxxx Securities Corp. and its officers
from any and all liabilities that may have arisen through the date of this
Agreement. Forms of the releases are annexed as Exhibits B and C.
12. ASSIGNMENT. The rights and obligations of the Company under this Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
the Company. The Company, and its subsidiaries are third party beneficiaries of
the confidentiality and non-compete agreements. The Employee's obligations
hereunder may not be assigned or alienated and any attempt to do so by the
Employee shall be void.
13. SEVERABILITY.
(a) The Employee expressly agrees that the character, duration and
geographical scope of the non-competition provisions set forth in this Agreement
are reasonable in light of the circumstances, as they exist on the date hereof.
Should a decision, however, be made at a later date by a court of competent
jurisdiction that the character, duration or geographical scope of such
provisions is unreasonable, then it is the intention and the agreement of the
Employee and the Company that this Agreement shall be construed by the court in
such a manner as to impose only those restrictions on the Employee's conduct
that are reasonable in the light of the circumstances and as are necessary to
assure to the Company the benefits of this Agreement. If, in any judicial or
arbitration proceeding, a court shall refuse to enforce all of the separate
covenants deemed included herein because, taken together, they are more
extensive than necessary to assure to the Company the intended benefits of this
Agreement, it is expressly understood and agreed by the parties hereto that the
provisions of this Agreement that, if eliminated, would permit the remaining
separate provisions to be enforced in such proceeding shall be deemed
eliminated, for the purposes of such proceeding, from this Agreement.
(b) If any provision of this Agreement otherwise is deemed to be
invalid or unenforceable or is prohibited by the laws of the state or
jurisdiction where it is to be performed, this Agreement shall be considered
divisible as to such provision and such provision shall be inoperative in such
state or jurisdiction and shall not be part of the consideration moving from
either of the parties to the other. The remaining provisions of this Agreement
shall be valid and binding and of like effect as though such provision were not
included.
14. NOTICES AND ADDRESSES. All notices, offers, acceptance and any other acts
under this Agreement (except payment) shall be in writing, and shall be
sufficiently given if delivered to the addressees in person, by Federal Express
or similar receipted delivery, by facsimile delivery or, if mailed, postage
prepaid, by certified mail, return receipt requested, as follows:
To the Company: NexGen Vision, Inc.
0000 Xxx Xxxxxxxxxx Xxxx
Xxxxx X
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
With a Copy to: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxx & Xxxxxxx, LLP
0000 Xxxx Xxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
To the Employee: Xxxxxxx Xxxxxxxxxx
0000 X.X. 00xx Xxxxxxx
Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
With a Copy to: Xxxxxx X. Xxxxxxx
Xxxxx & Xxxxx, Ltd.
00 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
or to such other address as either of them, by notice to the other may designate
from time to time. The transmission confirmation receipt from the sender's
facsimile machine shall be conclusive evidence of successful facsimile delivery.
Time shall be counted to, or from, as the case may be, the delivery in person or
by mailing.
15. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument. The execution of this Agreement may be
by actual or facsimile signature.
16. ARBITRATION. Except for an action for equitable relief, any controversy,
dispute or claim arising out of or relating to this Agreement, or its
interpretation, application, implementation, breach or enforcement which the
parties are unable to resolve by mutual agreement, shall be settled by
submission by either party of the controversy, claim or dispute to binding
arbitration in Atlanta, Georgia (unless the parties mutually agree in writing to
a different location), before three arbitrators in accordance with the rules of
the American Arbitration Association then in effect. In any such arbitration
proceeding the parties agree to provide all discovery deemed necessary by the
arbitrators. The decision and award made by the arbitrators shall be final,
binding and conclusive on all parties hereto for all purposes, and judgment may
be entered thereon in any court having jurisdiction thereof.
17. ATTORNEY'S FEES.
(a) In the event that there is any controversy or claim arising out of
or relating to this Agreement, or to the interpretation, breach or enforcement
thereof, and any action or proceeding is commenced to enforce the provisions of
this Agreement, the prevailing party shall be entitled to a reasonable
attorney's fee, costs and expenses.
(b) The Company agrees to pay the fees and costs of Employee's counsel,
in connection with the drafting, negotiation, execution and consummation of this
Agreement and the Stockholders' Voting Agreement, up to $3,000, upon
presentation of an invoice therefor. The Employee shall be responsible for any
such fees or costs in excess of $3,000.
18. GOVERNING LAW. This Agreement and any dispute, disagreement, or issue of
construction or interpretation arising hereunder whether relating to its
execution, its validity, the obligations provided therein or performance shall
be governed or interpreted according to the internal laws of the State of
Delaware where the Company is incorporated without regard to choice of law
considerations.
19. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement between
the parties and supersedes all prior or contemporaneous oral and written
agreements between the parties hereto with respect to the subject matter hereof.
Neither this Agreement nor any provision hereof may be changed, waived,
discharged or terminated, except by a statement in writing signed by the party
against which enforcement or the change, waiver, discharge or termination is
sought.
20. ADDITIONAL DOCUMENTS. The parties hereto shall execute such additional
instruments as may be reasonably required by their counsel in order to carry out
the purpose and intent of this Agreement and to fulfill the obligations of the
parties hereunder.
21. SECTION AND PARAGRAPH HEADINGS. The section and paragraph headings in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the Company and the Employee have executed this
Agreement as of the date and year first above written.
________________________ NexGen Vision, Inc.
________________________ By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx, Chief Executive Officer
________________________ Employee:
________________________ /s/ Xxxxxxx Xxxxxxxxxx
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Xxxxxxx Xxxxxxxxxx
