EMPLOYMENT AGREEMENT
AGREEMENT made as of the lst day of February , 1996 by and between
Xxxxx X. Xxxxxx, an individual residing at 0000 Xxxxxxxxxxx Xxxxx, Xxxxxxx
Xxxxxxx 33511,(hereinafter referred to as "Executive", and EYE CARE
INTERNATIONAL, INC., a Delaware corporation with offices at 0000 000xx Xxxxxx
Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 (hereinafter called "Company" or "ECI").
W I T N E S S E T H
WHEREAS, the Company desires to retain the services of Executive to
render his services to Company on the terms and conditions hereinafter set
forth; and
WHEREAS, Executive is agreeable to rendering such services to the
Company on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Employment Term, Duties and Acceptance
(a) Company hereby retains Executive as Company's Sr. Vice President
and Chief Financial Officer for a period of five (5) years, commencing on the
date hereof (the "Employment Period"), subject to earlier termination as
hereinafter provided, to render his services to Company upon the terms and
conditions herein contained, in such executive capacity. In such executive
capacity, Executive shall report and be responsible to the Company's Chief
Executive Officer. During the Employment Period, Executive shall also serve on
the Company's Board of Directors for a term equal to the term of this
Agreement.
(b) Executive hereby accepts the foregoing employment and agrees to
render his services to Company on a full-time basis in such a manner as to
reflect his best efforts to the end that the Company's operations are properly
managed. In furtherance of Executive performing the duties assigned to him
Agreement, should the Company's finances permit same, the Company agrees to
provide Executive with a support staff reasonably required by Executive so as
to enable him to carry out such duties. During the term of this Agreement,
Executive shall not be employed by, work for, or be associated with, directly
or indirectly, as an officer, consultant, employee, or in any other capacity,
any other business operation competitive with the business of the Company.
2. Compensation
(a) Except as hereinafter provided during the first yearly period,
Executive shall receive compensation of $125,000. On each yearly anniversary
date of the execution of this Agreement (hereinafter sometimes called the
"Anniversary Date," in each yearly instance), the Board of Directors shall
review the services provided by Executive to determine the amount that
Executive's salary shall be increased for the forthcoming yearly period. Such
increase shall be no less than the higher of ten (10) percent per year or an
amount equal to the percentage increase in the Consumer Price Index or such
other similar index reflective of the cost of living increase in the Tampa Bay,
Florida metropolitan area from the beginning of yearly period to the end of the
yearly period with respect to the Consumer Price Index applicable to the said
metropolitan area, times Executive's base compensation in effect during the said
yearly period. The sum resulting by way of this increase to the Executive's base
compensation shall, for the then immediately succeeding period, be considered
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the Executive's base compensation. The Board of Directors shall also determine,
on an annual (fiscal or calendar year, as the case may be) basis, the amount, if
any, of bonus or incentives to be paid to Executive. Provided, however, that
Executive shall receive a special bonus ("special bonus") amount equal to three
(3%) percent of the Company's pre-tax profits from the preceding calendar year
(as determined by the application of generally accepted accounting principles)
over and above $1 million. The special bonus shall be paid within thirty (30)
days following determination thereof.
(b) Executive shall be entitled to reasonable paid vacation and
holiday time, sick leave and time to attend professional meetings comparable to
that offered the executives in comparable positions.
(c) Executive shall be entitled (subject to the terms and conditions
of particular plans and programs) to all fringe benefits afforded to other
senior executives of the Company, including, but not by way of limitation, an
auto allowance, bonuses and the right to participate in any pension, stock
option, 401K, retirement, major medical, dental, vision, group health,
disability, accident and life insurance, relocation reimbursement, and other
employee benefit programs made generally available, from time to time, by the
Company. The Company shall also maintain D&O Liability insurance.
(d) Company shall pay or reimburse Executive for reasonable expenses
incurred in the performance of his services under this Agreement during
Employment Period, upon presentation of expense statements, vouchers or such
other supporting documentation as may reasonably be required.
(e) As compensation for Executive entering into the employ of the
Company and duly rendering services pursuant to this Agreement for such time as
may be necessary prior to the Company compensating Executive financially as
hereinbefore and hereinafter set forth, Executive has agreed to receive, in
lieu of financial compensation, One-hundred Fifty Thousand (150,000) shares of
the Company's Common Stock. The Executive acknowledges being advised that:
(i) there can be no assurances that the Company will, subsequent to
the date hereof, file a Registration Statement or, if filed, that said
Registration Statement will become effective and that;
(ii) the shares being so issued, will not be registered and that the
Company shall have no obligation to register the shares so issued and, further,
that;
(iii) said shares will be received by Executive with the understanding
that all shares so acquired by Executive are what is commonly known as "144"
shares (i.e., not publicly tradable).
(f) Notwithstanding the foregoing, Executive acknowledges being
advised that the Company may not be able to pay Executive full compensation
until some time in 1997. Such non-payment shall not be deemed a default by
Company, provided in the event the Company does not commence paying Executive
full financial compensation by December 31, 1997, Executive shall have the
option of forthwith terminating this Agreement or accepting payment of a lesser
sum as may be mutually agreed upon and accruing the difference. Notwithstanding
Executive's acceptance of said lesser sum, Executive may nonetheless terminate
this Agreement on 90 days written notice at any time thereafter -- up to the
date Company commences paying Executive his Base Compensation.
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3. Disability
(a) During any period that the Executive fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness, the
Executive shall continue to receive his full Base Compensation at the rate then
in effect and all other compensation, until the Executive's employment is
terminated by the Company pursuant to the provisions hereof. Upon the
disability, as defined in subparagraph 3(b) hereof, of Executive during the
Employment Period, Company may, in its sole discretion, terminate Executive's
employment; provided that if the Company elects to so terminate Executive's
employment, Executive shall be entitled to receive, accrued but unpaid salary,
expense reimbursement and bonuses, the proceeds of any disability insurance
policy plus an amount from the Company monthly which, when added to the amount
received by the Executive from any disability policy in effect for the
Executive at the time of his disability will equal the Executive's salary for a
twelve-month period following the date of termination, as if the termination
had not occurred. Such termination shall have no effect on the Company's
obligation to pay the special bonus referred to hereinbefore. Provided,
however, in the event Executive partially perform and discharge the duties
previously performed by him for Company, nothing herein shall prevent the
Executive from continuing his duties in a part-time capacity, at a level of
Compensation to be mutually determined at that time.
(b) For purposes of this Agreement the term "disability" shall mean
Executive's inability to continue to materially and substantially perform and
discharge the duties previously required of him on behalf of the Company for an
aggregate period exceeding three (3) consecutive months within any twelve (12)
month consecutive period.
(c) In the event of a dispute between the parties as to what
constitutes a disability, such dispute shall be finally determined by a person
mutually agreed upon by Executive and Company. If a mutually acceptable person
cannot be selected, such designation shall be made by Executive and Company
each choosing a person, which persons shall then mutually select a third person
(collectively called the "panel"). The panel's determination shall by majority
vote and such determination shall be deemed binding and conclusive. The parties
agree to fully cooperate with whatever procedures and examinations may be
required in order to allow the panel to make its determination.
4. Vacations
Executive shall be entitled, during each employment year, to four (4)
weeks vacation, per annum, non-cumulative, or payment for vacation time not
taken by Executive.
5. Termination of Employment
(a) (i) In the event Fifty (50) Percent or more of the equity
securities of the Company are acquired by any single person or identifiable
group, as defined by the applicable rules and regulations under the Security
and Exchange Act of 1934, as amended at an average acquisition price of $5.00
per share or more (valuing promissory notes, preferred stock or subordinated
debentures given as consideration at their face value, and valuing any other
assets given as consideration at their fair market value) and in the further
event that Executive's employment is terminated within twelve (12) months
following such event, except if such termination is by reason of "cause" (as
that term is defined in paragraph 5(b) hereafter; or (ii) in the event this
Agreement is terminated by reason of Executive's death or if Executive
terminates his employment by reason of the uncured breach of the Agreement by
Company ("cause"), then, on the termination date, Company shall pay (or issue,
as the case may be) to Executive a lump sum amount equal to the
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aggregate of (i) accrued but unpaid salary, if any; (ii) accrued but unpaid
expenses, if any; (iii) accrued but unpaid bonuses, if any; (iv) unissued stock
and/or warrants, if any; and (v) the total compensation which would have been
paid to Executive through the longer of (i) the remaining term, if any, of the
Employment Period; or (ii) three (3) years compensation. The Company also
agrees to provide for Executive, at no cost to Executive, family medical and
dental insurance for one year after the termination date. Additionally, as of
the termination date, Executive's rights to exercise his warrants, (if any)
and/or stock option to the full extent of the shares covered thereby (if said
rights had not otherwise matured or vested), shall forthwith mature and vest
and Executive shall have the right to exercise his rights under any such
securities. If the Executive intends to terminate his employment with the
Company for "cause", the "cause" shall be specified in a written notice sent by
Executive to the Company, and the Company shall be afforded fifteen (15) days
or longer, if reasonably required, to cure such breach, if such breach is
capable of being cured.
(b) In the event of gross misconduct in office by Executive in the
performance of his duties hereunder (which shall hereinafter be referred to as
"Termination for Cause"), Company may terminate this Agreement by giving two
(2) weeks prior written notice to Executive identifying the cause of
termination and specifying the effective date of such termination. If Executive
is subjected to Termination for Cause, then such "cause" shall be specified in
such notice and Executive shall be afforded fifteen (15) days or longer, if
reasonably required, to cure such breach, if such breach is capable of being
cured. On the termination date, Company shall pay to Executive the aggregate of
(i) accrued but unpaid expenses, if any; (ii) accrued but unpaid bonuses, if
any; and (iii) the net salary compensation which would have been paid to
Executive through the date of termination. Furthermore, in that event, any
warrants to be issued pursuant to this Agreement, and any options granted
pursuant to plans then applicable to Executive which have not been vested shall
be forfeited as of the termination date.
(c) In the event Executive resigns or is terminated as an employee of
Company and any of its subsidiaries, Executive hereby agrees that his
position(s) as officer and director of the Company shall automatically end as
of the date of his resignation or termination of employment.
(d) Anything contained herein to the contrary notwithstanding,
Executive may terminate his employment with Company prior to the expiration of
the five-year period as afore-described, in the event, without justifiable
cause, he is not paid the compensation due him pursuant to the terms of this
Agreement.
6. CONFIDENTIALITY
(a) Executive agrees to execute Company's standard form of
Confidentiality Non-Competition Agreement as prepared by Counsel to Company.
(b) Except if this Agreement is terminated by way of or due to breach
of same by the Company or for reasons specified in subparagraph (d) of Article
5., or subparagraphs (a), (b), (c) and/or (d) of Article 7., Executive's
covenants contained herein shall survive the termination or expiration of this
Agreement.
7. TERMINATION OF AGREEMENT
This Agreement shall, in addition to other provisions affecting
termination, terminate on the occurrence of any of the following events:
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(a) Cessation of the Company's business;
(b) Dissolution of the Company;
(c) The voluntary agreement of the parties hereto; or (d) The
Executive's death.
8. NOTICES
All notices, requests, demands, deliveries and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, postage prepaid, registered or certified mail, return receipt requested
to the parties at the addresses (or at such other address for a party as shall
be specified by like notice) specified on the first page of this Agreement.
9. WAIVER
The failure of either party at any time or times to require
performances of any provision hereof shall in no manner effect the right at a
later time to enforce the same. To be effective, any waiver must be contained
in a written instrument signed by the party waiving compliance by the other
party of the term or covenant as specified. The waiver by either party of the
breach of any term or covenant contained herein, whether by conduct or
otherwise, in any one or more instances, shall not be deemed to be, or
construed as, a further or continuing waiver of any such breach, or a waiver of
the breach of any other term or covenant contained in this Agreement.
10. GOVERNING LAW
This Agreement shall be governed by the laws of the Sate of Florida,
which shall have exclusive jurisdiction over any claims or disputes arising
from the subject matter contained herein without regard to any conflict of laws
provision.
11. COMPLETE AGREEMENT
This Agreement constitutes the complete and exclusive agreement
between the parties hereto which supersedes all proposals, oral and written,
and all other communications between the parties relating to the subject matter
contained herein.
12. SEVERABILITY
If any of the provisions of this Agreement are held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
13. EXECUTORS, ADMINISTRATORS, SUCCESSORS AND ASSIGNS
This Agreement may not be assigned, transferred or otherwise inure to
the benefit of any third person, firm or corporation by operation of law or
otherwise, without the written consent by the other party hereto, except as
herein specifically provided to the contrary.
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14. MODIFICATION
This Agreement may only be amended, varied or modified by a written
document executed by the parties hereto.
15. FURTHER INSTRUMENTS
The parties hereto agree to execute and deliver, or cause to be
executed and delivered, such further instruments or documents and take such
other action as may be required to effectively carry out the transactions
contemplated herein.
16. INDEMNIFICATION
In addition to any liability insurance to be provided the Executive
hereunder, the Company will indemnify and hold harmless the Executive from any
and all claims, demands, suits, actions or judgments which hereafter may by
asserted, instituted or recorded by any person, firm or corporation for the
duration of this Agreement and for a six (6) year period following the
termination of said Agreement as defined in paragraph 5. The foregoing
indemnity shall be enforceable only with respect to claims made against
Executive with respect to all expenses, losses, charges and attorney's fees
sustained or incurred by the Executive in defending any suit, action or other
proceeding brought against the Executive, directly or indirectly, arising out
of the Executive's employment by Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
this 1st day of February , 1996.
EYE CARE INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxx
------------------------
Xxxxx Xxxxxx
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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