EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT made on this 16th day of September, 1996, by
and between XXXXXX XXXXXX, a resident of Springfield, Pennsylvania (hereinafter
"Executive"), and U.S. Vision, Inc., a company organized under the laws of the
Commonwealth of Pennsylvania with headquarters in Glendora, New Jersey
(hereinafter "Company").
IN CONSIDERATION of the covenants set forth herein and other
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. EMPLOYMENT. The Company employs the Executive and the Executive
accepts such employment by the Company upon the terms and conditions hereinafter
set forth for a three (3) year term commencing on September 16, 1996, unless
otherwise terminated in accordance with Section 6 hereof.
2. POSITION AND RESPONSIBILITIES. During the term of employment, the
Executive shall serve as the Company's Executive Vice President of Retail or
such other executive level office as may be assigned by the Board of Directors
of the Company. He shall perform such executive and administrative duties and
functions consistent with the position of Executive Vice President of Retail as
he may be called upon to perform by the Board of Directors of the Company in any
of the Company's subsidiaries and/or affiliates. The Executive shall devote
substantially all of this time to his duties hereunder and he shall exert his
best efforts in the performance of his duties as to promote the profit, benefit
and advantage of the business of the Company. During the term of this Agreement,
the Company shall not cause Executive to relocate his residence without his
consent.
3. COMPENSATION. For all the services rendered by the Executive under
this Agreement, the Company shall compensate Executive as follows:
a. Monthly Base Salary. Beginning on the commencement of
employment hereunder, the Company shall pay to the Executive a Monthly Base
Salary of $13,333.33 in arrears until increased in accordance with the
provisions of this Section or until this Agreement is terminated in accordance
with the provisions of Section 6 hereof. During the term of this Agreement,
Executive shall receive an annual performance review and evaluation. At any time
during this Agreement or any extension thereof, the Board of Directors may
increase Executive's Monthly Base Salary in accordance with the position and
responsibilities of the Executive and Executive's performance, but the
Executive's Monthly Base Salary may only be decreased during the term of this
Agreement and any extension thereof with the prior written consent of the
Executive. The Company is authorized to deduct from the actual compensation of
the Executive such sums as are required by law to be deducted or withheld.
b. Bonuses. In addition to the Monthly Base Salary, the
Executive shall be eligible to participate in Company established bonus
incentive plans, pursuant to which management of the Company, which shall
include the Executive, are eligible to receive bonuses based upon the Company
reaching sales and/or profit benchmarks or other objectives established by the
Board of Directors. Executive's bonus during the first year of his employment
will be pro-rated for the period of the fiscal year during which Executive was
employed with the Company. The dates on which any such bonus shall be paid and
the amounts of such bonus, if any, shall be determined by the Board of Directors
of the Company.
c. Vacation. The Executive shall also be entitled to a
vacation of four (4) weeks per year during which his compensation shall be paid
in full.
d. Employee Benefit Plans. The Executive shall be entitled to
participate in any pension, profit-sharing, stock option, medical, dental or
vision benefit plan, disability program, insurance or any other benefit plan
which is or may be established by the Company for the benefit of its employees
or any group of them.
e. Company Car. The Company shall provide the Executive with a
late model automobile at the inception of this Agreement. The automobile shall
be selected by the Executive in consideration of his position and the type of
automobiles provided other Executive Vice President employees of the Company.
The Company agrees to reimburse the Executive for the costs of gasoline and all
related automobile maintenance and operation expenses.
f Expenses. The Company agrees to reimburse or pay on the
Executive's behalf any and all travel, entertainment and business expenses
incurred by the Executive which are reasonable and necessary to the Executive's
performance of his duties as permitted by the Company's policies.
g. Stock Options. Upon the execution of this Agreement, the
Company shall grant to Executive incentive stock options to purchase 245 shares
of the Company's common stock, par value $10.00 per share (the "Common Stock")
for ten (10) years at $500 per share, vesting over the three (3) year term of
this Agreement, as provided in the Stock Option Agreement of even date herewith
by and between the Executive and the Company. Executive will be considered with
other members of management for options to acquire the same number of Common
Stock options referred to above on or before the date on which the Company
commences an initial public offering of Common Stock; provided, however, the
grant of all or a portion of such options shall be in the sole discretion of the
Company's Board of Directors. As of the date of this Agreement, there are
currently 13,786 shares of Common Stock outstanding and outstanding warrants and
options to acquire 24,733 and 10,542 shares of Common Stock, respectively.
4. CONFIDENTIAL INFORMATION The Executive shall retain in confidence
any and all confidential information known to the Executive concerning the
Company and its businesses so long as such information is not otherwise publicly
disclosed by a person entitled to make such disclosure.
5. POST EMPLOYMENT RESTRICTIONS. For a period of one (1) year following
the termination (for any reason whatsoever) of Executive's employment with the
Company, the Executive shall not in any manner, directly or indirectly, contact,
communicate or discuss with (i) any Licensor (as defined below) concerning
establishing any business relationship with such Licensor which may be related,
directly or indirectly, to the retail optical industry or (ii) any Employee (as
defined below) the hiring or engaging of such Employee through any employer that
employs or is employed by, directly or indirectly, Executive. For the purposes
of this paragraph the term "Licensor" shall mean any enterprise which leases or
licenses the Company to sell optical goods in space controlled by such Licensor
(such as JC Penney, Sears, and other host department stores of the Company)
during the 1 year period prior to the termination of Executive's employment with
the Company. For the purposes of this paragraph the term "Employee" shall mean
any person employed by the Company or its affiliates during the 60 day period
prior to the date on which such a determination is made.
6. TERMINATION.
a. Death. In the event of the Executive's death during the
term of this Agreement, or any extension thereto, this Agreement shall terminate
immediately.
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b. Disability. If, as a result of the Executive's incapacity
due to physical or mental illness, the Executive shall have been absent from his
duties with the Company on a full-time basis for six (6) months and the
Executive shall not have returned to the full performance of his duties within
sixty (60) days after written notice of termination under this Section, the
Company may terminate this Agreement for Disability.
c. Cause. The Company may terminate the Executive's employment
for Cause as defined below. For the purposes of this Agreement only, the Company
shall have "Cause" to terminate the Executive's employment hereunder only on the
basis of: (i) fraud, misappropriation or embezzlement; (ii) after the final,
non-appealable conviction by a court of competent jurisdiction of the Executive
of a felony; or (iii) after repeated and material breaches of this Agreement
after written notice from the Company. Notwithstanding the foregoing, the
Executive shall not be deemed to have been terminated for Cause unless and until
there shall have been delivered to the Executive a copy of a resolution duly
adopted by the Board of Directors at a meeting of the Board of Directors called
and held for the purpose of terminating the Executive (after reasonable notice
to the Executive including the specific grounds for termination and an
opportunity for the Executive, together with the Executive's counsel, to be
heard before the Board of Directors) and after a finding that in the good faith
opinion of the Board of Directors the Executive was guilty of conduct set forth
in the second sentence of this Section 6(c).
d. Notice of Termination. Any termination by the Company
pursuant to Section 6(b) or 6(c) shall be given by a written notice of
termination which, with respect to the termination of Executive under Section
6(b) or 6(c), shall set forth in reasonable detail the facts and circumstances
claimed to be a basis for termination of the Executive's employment. No such
purported termination by the Company shall be effective without such a written
notice as provided in this Section 6(e).
e. Date of Termination. For the purposes of this Agreement,
the "Date of Termination" shall mean the day the Executive receives a Notice of
Termination required in Section 6(d) above from the Company or the date the
Company receives a Notice of Termination from the Executive of Executive's
resignation of this employment with the Company.
x. Xxxxxxxxx, Compensation Upon Termination; Release. The
Company shall have the right to terminate the Executive's employment at any time
Without Cause and, if the Executive's employment with the Company is terminated
by the Company for any reason other than as a result of: (i) the Executive's
death, (ii) the Executive's disability, (iii) Cause as defined in Section 6(c)
above, or (iv) the Executive's resignation, the Company will be obligated to pay
to the Executive, as severance, the Executive's Monthly Base Salary on the Date
of Termination for twelve (12) months thereafter, if and only if Executive
requests such severance in writing within forty-five (45) days of the
Termination Date and releases the Company from liability as provided below. The
monthly severance payments, if payable, shall be due and payable (bi-weekly if
that is the manner in which Executive was paid during his employment) on or
before the day of the month on which the Company paid the Monthly Base Salary to
Executive. In order to be entitled to the severance payments pursuant to this
Section 6(g), Executive must release the Company and
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the owners, shareholders, employees, officers, directors and agents of all of
them from all claims and demands based on Executive's employment with the
Company or the termination thereof, including any claims: (i) for wrongful
discharge; (ii) arising under common law; (iii) arising under the Age
Discrimination in Employment Act of 1967, which prohibits age discrimination in
employment; (iv)for any bonus; (v) for shares of stock of the Company; (vi) for
options to purchase shares of stock of the Company (except as provided herein);
(vii) under any severance plan or policy of the Company; (viii) based upon any
contract, whether oral or written and (ix) based upon any tort. Executive agrees
to execute such other documents as Company may reasonably request to evidence
the release by Executive of the foregoing claims in exchange for the severance
payments described above. In the event Executive elects not to execute such
other document(s) as may be reasonably requested by Company, Company may place
an endorsement on the back of the first severance check to Executive which
contains a reference to this release provision. Upon Executive's endorsement or
negotiation of that check, Executive shall be deemed to have released the
Company from all claims and demands based on Executive's employment with the
Company or the termination thereof.
g. Other Remedies. Neither the grant nor the exercise of a
right of termination hereunder shall preclude any other legal relief or remedy
available to any party, and nothing contained in this Section 6 shall relieve
the Company of the duty to pay the Executive compensation for services performed
prior to the Date of Termination of the Executive's employment with the Company.
7. NO OBLIGATION TO MITIGATE DAMAGES. The Executive shall not be
required to mitigate damages or the amount of any payment provided for under
this Agreement by seeking other employment or otherwise.
8. NOTICES. Any notice or other communication pursuant to this
Agreement shall be in writing and shall be deemed to have been given or made
when personally delivered or when mailed by registered or certified mail,
postage prepaid, to the other party.
9. BINDING EFFECT. This Agreement shall inure to the benefit of and
shall be binding upon the parties, their successors, assigns or personal
representatives. Since the duties of the Executive hereunder are special,
personal and unique in nature, the Executive may not transfer, sell or otherwise
assign his obligations under this Agreement.
10. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and there are no other representations, warranties,
covenants or obligations except as set forth herein. This Agreement may be
amended only in writing executed by the parties.
11. GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed under seal.
EXECUTIVE: U.S. VISION, INC.
/s/ By: /s/
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Xxxxxx Xxxxxx
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