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Exhibit 10.7
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated (March 24, 1997) by and between EYE CARE
CENTERS OF AMERICA, INC., a Texas corporation (the "Company") and Xxxxxxx Xxxxxx
("Executive").
WHEREAS, the Company desires to employ Executive and provide severance
pay in the event of termination without cause as provided in this Agreement;
WHEREAS, the Company has adopted an enhanced Annual Incentive Plan for
Key Management in which Executive shall be permitted to participate upon
execution of this Agreement; and
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1: Term of Employment. This Agreement shall commence on April 21,1997
("Commencement Date") and shall terminate on the one year anniversary of the
Commencement Date (the "Employment Term") except as otherwise provided in this
Agreement. The Company, at its sole option and discretion, may extend the term
of this Agreement for an additional one year period(s), upon written notice to
Executive on or before thirty (30) days prior to the end of the Employment Term.
(Employment Term also includes any extensions of this Agreement.) If the
Agreement is not specifically renewed, the employment relationship shall become
at-will; however, in this event, if the Company terminates the Executive's
employment without cause, as defined herein, the Executive shall be entitled to
receive the severance as provided for in Section 9(a) of this Agreement, in
accordance with the terms of this Agreement.
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2. Duties. During the Employment Term, Executive shall devote
substantially all of her business time and best efforts to the performance of
her duties hereunder and shall not engage in any other business, profession or
occupation for compensation or otherwise.
3. Base Salary. During the Employment Term, the Company shall pay
Executive a base salary (the "Base Salary") at the annual rate of not less than
$125,000.00, payable bi-weekly in arrears, in accordance with the usual payment
practices of the Company. Executive's Base Salary shall be subject to annual
review for possible increase at the end of February or in March of each year
during the Employment Term.
4. Incentive Compensation. The Executive shall be permitted to
participate in the Company's Annual Incentive Plan for Key Management, and her
rights are governed solely by the terms of such plan as it may be in effect from
time to time, except that Executive's bonus under such plan for 1997 shall not
be less than $25,000.00 and for purposes of calculating such bonus, the bonus
shall be calculated as if the Executive began working on January 1, 1997.
5. Stock Options. The Executive shall be permitted to participate in
the Company's Executive Stock Option Plan, and her rights are governed solely by
the terms of that plan as it may be in effect from time to time, and her
Executive Stock Option Agreement(s) as in effect from time to time.
6. Employee Benefits. During the Employment Term, Executive shall be
provided employee benefits as shall be maintained by the company from time to
time on the same basis as the other similarly situated executives of the
Company.
7. Business Expenses and Perquisites. The Company shall reimburse such
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of Executive's travel, entertainment and other business expenses as are
reasonably and necessarily incurred by Executive during the Employment Term in
the performance of her duties hereunder, in accordance with the Company's
policies as in effect from time to time. During the Employment Term, Executive
shall be furnished with a car allowance in accordance with the Company's policy
as in effect from time to time.
8. Termination. Notwithstanding Section 1 , this Agreement shall
terminate automatically upon the death or disability of Executive.
9. Severance Payments on Termination.
(a) Without Cause by the Company. If Executive's employment is
terminated by the Company during the Employment Term without "cause," Executive
shall receive in lieu of any other compensation, benefits or payments, continued
periodic payment of Base Salary for nine months following date of termination.
"Cause" shall have the same meaning as set forth in Section 4 (f) (i) (A)
through (E) of the Eye Care Centers of America Executive Stock Option Plan
effective in October, 1993. Severance pay shall cease immediately upon Executive
entering into competition as defined in Section (10) (a) (i) of this Agreement.
(b) Disability. Upon termination of Executive's employment hereunder
for disability, Executive shall receive her Base Salary through the date on
which Executive is first eligible to receive payment of disability benefits
under the Company's employee benefit plans as then in effect, and if no such
plan is in effect, through the month ending 180 days after onset of disability.
"Disability" as used herein shall mean the inability of Executive,
notwithstanding any reasonable accommodation the Company may make, to perform
her
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customary duties due to any condition of physical or mental illness, injury,
disease or other incapacity, which condition has existed or may reasonably be
expected to continue for six consecutive months or for an aggregate of six
months in any 24 consecutive months. Any question as to the existence of the
Disability of Executive as to which Executive and the Company cannot agree shall
be determined in writing by a qualified independent physician mutually
acceptable to Executive and the Company. If Executive and the Company cannot
agree as to a qualified independent physician, each shall appoint such a
physician and those two physicians shall select a third who shall make such
determination in writing. The determination of Disability made in writing to the
Company and Executive shall be final and conclusive for all purposes of the
Agreement.
(c) Death. Upon termination of Executive's employment hereunder for
death, Executive shall receive her Base Salary at the rate in effect at the time
of Executive's death through the end of the month in which her death occurs.
(d) Executive shall not be entitled to any payment or benefit upon
termination of her employment, except for payments of Base Salary expressly
provided in this Section 9, any rights under the Company's Executive Stock
Option Plan and Agreement(s), and any statutory rights such as COBRA.
10. Non-Competition. Executive acknowledges and recognizes the highly
competitive nature of the businesses of the Company and accordingly agrees as
follows:
(a) (i) During the Employment Term, including any extension(s), and
thereafter while receiving any severance pay under Section 9 (a) of
this Agreement, Executive shall not enter into any competitive
endeavors with and shall not
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undertake any commercial activity which is contrary to the best
interests of the Company, including becoming an employee, owner,
officer, agent or director of any firm or person in any geographic
areas in the United States, Mexico or Canada, which engages
primarily in optical retailing; and
(ii) Except in the event of a termination of employment by the
Company during the Employment Term without cause, Executive shall
not without the Company's prior written consent, for one year
following termination of her employment, serve as an employee,
owner, officer, agent or director of any firm or person in any
geographic areas in the United States, Mexico or Canada which
engages primarily in optical retailing. Nothing in this Section 10
(a) shall prohibit Executive from owning passive investments of not
more than 1% of the outstanding shares of any company or entity
listed or traded on a national securities exchange or in an
over-the-counter securities market.
(b) For one year following termination of her employment, with or
without cause, including any termination upon or after expiration
of the Employment Term. Executive shall not directly or indirectly
induce any employee of the Company to engage in any activity in
which Executive is prohibited from engaging by Section 10 (a) (i)
or (ii) above or to terminate her employment with the Company, and
shall not directly or indirectly employ or offer employment to any
such person unless such person shall have ceased to be
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employed by the Company and such cessation of employment shall
have occurred at least 12 months prior thereto.
11. Confidentiality. Executive shall not, during the Employment Term
(including extensions) or thereafter, without the prior written consent of the
Company, use, divulge, disclose or make accessible to any other person, firm,
partnership or corporation any Confidential Information, as hereinafter defined,
except while employed by the Company in the business of and for the benefit of
the Company or when required to do so by a court of law, by any governmental
agency having supervisory authority over the business of the Company or by any
administrative body or legislative body, including a committee thereof, with
jurisdiction to order her to divulge, disclose or make accessible such
Information; provided, that in the case of any such requirement or purported
requirement Executive shall provide written notice to the Company prior to
producing such Information, which notice shall be given at least 10 days prior
to the producing of such Information, if practicable, so that the Company may
seek a protective order or other appropriate remedy. For purposes of this
Agreement, "Confidential Information" shall mean all non-public information
concerning the business of the Company, including, without limitation,
information relating to its product development, customer lists, relationships
with customers, financial information, business and marketing plans and
strategies, operating policies and manuals, and current or prospective
transactions, except for specific items which become publicly available
information other than through a breach by Executive of her fiduciary duty or
any confidentiality agreement, including without limitation this Section 11.
Executive agrees that upon termination of her employment hereunder for any
reason, she shall return to the Company immediately all
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memoranda, books, papers, plans, information, letters and other data, and all
copies thereof or therefrom, in any way relating to the business of the Company,
except that she may retain personal notes, notebooks and diaries. Executive
further agrees that she shall not retain or use for her account at any time any
trade name, trademark, service xxxx or other proprietary business designation
used or owned in connection with the business of the Company.
12. Specific Performance and Other Remedies. Executive acknowledges and
agrees that the Company has no adequate remedy at law for a breach or threatened
breach of any of the provisions of Sections 10 (a) (i), 10 (a) (ii), 10 (b) or
11 and, in recognition of this fact, Executive agrees that, in the event of such
a breach or threatened breach, in addition to any remedies at law, the Company,
without posting any bond, shall be entitled to obtain equitable relief in the
form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available.
Nothing in this Agreement shall be construed as prohibiting the Company from
pursuing any other remedies at law or in equity that it may have or any other
rights that it may have under any other agreement.
13. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas without reference to
principles of conflict of laws.
(b) Entire Agreement/Amendments. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof, and
supersedes any prior
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employment agreements between the Company and Executive. This Agreement may not
be altered, modified, or amended except by written instrument signed by the
parties hereto.
(c) No Waiver. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to the term or any other term of this Agreement.
Any such waiver must be in writing and signed by Executive or an authorized
officer of the Company, as the case may be.
(d) Severability. It is expressly understood and agreed that
although Executive and the Company consider the restrictions contained in
Sections 10 and 11 to be reasonable, if a final judicial determination is made
by a court of competent jurisdiction that the time or territory restrictions in
Section 10 or any other restriction contained in Section 10 or 11 is an
unenforceable restriction against Executive, such provisions shall not be
rendered void but shall be deemed amended to apply to such maximum time and
territory, if applicable, or otherwise to such maximum extent as such court may
judicially determine or indicate to be enforceable. In the event that any
provision of this Agreement shall nevertheless be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
(e) Assignment. This Agreement shall not be assignable by
Executive. This Agreement shall inure to the benefit of and be binding upon the
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees of the parties hereto.
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(f) Offset. Anything in this Agreement to the contrary
notwithstanding, if Executive provides services for pay to anyone other than the
Company or any of its affiliates or subsidiaries during a period in which she is
receiving severance pay (the "Severance Period"), the amount of severance paid
or to be paid to Executive with respect to such Severance Period shall be
reduced by the amount of compensation earned by Executive with respect to such
Severance Period as a result of Executive's performing such services.
(g) Communications. For the purpose of this Agreement, notices and
all other communications provided for this Agreement shall be in writing and
shall be deemed to have been duly given when faxed or delivered or two business
days after being mailed by the United States Registered or certified mail,
return receipt requested, postage prepaid, addressed to the Company at its
principal place of business, and to Executive at her last known place of
business or her residence.
(h) Withholding Taxes. The Company may withhold from any and all
amounts payable under this Agreement such Federal, state and local taxes as may
be required to be withheld pursuant to any applicable law or regulation.
(i) Survivorship. The respective rights and obligations of the
parties hereunder shall survive any termination of Executive's employment to the
extent necessary to the agreed preservation of such rights and obligations.
(j) Counterparts. This Agreement may be signed in counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
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(k) Headings. The headings of the sections contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
Eye Care Centers of America, Inc.
00000 Xxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
Title:Senior Vice President - Human Resources
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